In Hayward v. Bank of Am., N.A., No. 2:16-cv-03047-MCE-DMC, 2020 U.S. Dist. LEXIS 60318, at *19-25 (E.D. Cal. Apr. 6, 2020), Judge England denied summary judgment in a Rosenthal Act case.
In support of her Second Claim, for violation of California’s Rosenthal Act, Plaintiff alleges that [*20] BANA made harassing calls to Plaintiff and in so doing used false and unconscionable means to collect or attempt to collect the purported debt. FAC, ¶¶ 44-46. Plaintiff estimates that BANA made “well in excess of one thousand calls” to her two cell phone numbers, even after she asked BANA to stop on “many” occasions. Id. at ¶¶ 33, 36. Under the Rosenthal Act, “every debt collector collecting or attempting to collect a consumer debt shall comply with the provisions of Sections 1692b to 1692j” of the federal Fair Debt Collection Practices Act (“FDCPA“), 15 U.S.C. §§ 1692 et seq. Civ. Code § 1788.17. Under Section 1692d, “[a] debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt,” including, at subsection (5), “[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.” By expressly incorporating the standard under the federal FDCPA in defining liability for the same conduct under state law, the scope of both statutory schemes appears coextensive and the same analysis in assessing liability under the FDCPA also applies to the Rosenthal Act. See Joseph v. J.J. MacIntryre Cos., LLC, 238 F. Supp. 2d 1158, 1168 (N.D. Cal. 2002). As indicated above Plaintiff’s FAC shows that she bases this Rosenthal Act claim on allegations that BANA engaged in excessive calling even after she requested that such calls stop. BANA, on the other hand, claims Plaintiff has failed to establish any actionable misconduct of this nature on its part, let alone misconduct occurring within the applicable limitations period. The Rosenthal Act carries a one-year statute of limitations. Cal.Civ. Code § 1788.17. According to BANA, any conduct preceding one year prior to the date Plaintiff’s lawsuit was filed on December 29, 2016 is therefore time-barred. BANA goes on to argue the no evidence of misconduct falling within the purview of that limited statutory period has been identified. This effort on BANA’s part to minimize its potentially actionable conduct under the Rosenthal Act, however, ignores the fact that the Act‘s statute of limitation may be extended through the so-called “continuing violation” doctrine. As the court in Komarova v Nat. Credit Acceptance, Inc., 175 Cal. App. 4th 324, 95 Cal. Rptr. 3d 880 (2009), noted, violations occurring over a continuing course of harassing phone calls are not barred by the statute of limitations. Id. at 343-44; see also Joseph v. J.J. Mac Intyre Cos., L.L.C., 281 F. Supp. 2d 1156, 1161 (N.D. Cal. 2003) (applying the continuing violation doctrine in a Rosenthal Act action where repeated harassing phone calls occurred as well as a single call late at night). The case law provides no clear guidance with respect to how many calls are needed for a defendant’s conduct to constitute “harassment” under the Rosenthal Act. See Crockett v. Rash Curtis & Assocs., 929 F. Supp. 2d 1030, 1032 (N.D. Cal. 2013) (“No bright-line rule guides courts in determining which conduct fails to establish harassment as a matter of law, but courts have found call volumes similar to the 22 at issue here to state a claim for relief . . . “) With these general principles in mind, the Court turns to the case at hand. There is a sharp divergence in how the parties characterize the calls. The operative FAC, as indicated above, suggests that more than a thousand calls were made by BANA in attempting to collect its debt. FAC , ¶¶ 33, 36. According to Plaintiff, BANA called her repeatedly until 2016, to the extent that she stopped answering her phone entirely due to the frequency of the calls. Plaintiff claims she eventually secluded herself at home “due to the stress of BANA’s endless harassment.” Pl.’s Decl., ¶¶ 20, 24. If Plaintiff is given the benefit of the doubt with respect to those claims, as summary judgment principles would appear to mandate, the Court cannot rule out a pattern of harassment triggering applicability of the “continuing violation” doctrine. If the Court does that, BANA’s collection attempts going back to its very first collection efforts after Plaintiff failed to make a disbursement election one way or the other have to be considered. Since the evidence shows that BANA was operating from the onset with the assumption that Plaintiff wished to rebuild and that accordingly the remaining insurance funds were to be reserved for that purpose, one would expect that collection calls may well have started sometime in early-to-mid 2014. Perhaps tellingly, BANA has not offered any evidence as to either when the calls started or how frequently they were at the onset. From counsel’s letter of May 15, 2019 (Reidy Decl., Ex F), we only know that BANA placed some 51 calls (and 42 apparent voice mail messages) to Plaintiff at her cell phone ending in – 2448 between October 6, 2015 and December 1, 2016, and three calls to the – 8550 number between November 4, 2014 and May 3, 2016. Even aside from the fact that those records are no doubt incomplete with respect to BANA’s post-fire collection activities, whether or not that volume of calls is harassing raises triable issues not amenable to determination on summary judgment. In addition, whether or not Plaintiff consented to the calls also raises triable issues. It is undisputed that Plaintiff had initially consented to being called at both of her cell phone numbers in connection with pre-fire loan modification requests. See SUF Nos. 31, 33. Plaintiff claims, however, that at various points between November 2013 and June of 2014, she requested that BANA stop contacting her with respect to her mortgage loan given her belief that she had already “paid it off” in November 2013. Pl.’s Decl., ¶ 16. In addition, Plaintiff’s counsel sent a cease and desist letter to BANA on February 20, 2015, demanding that BANA “immediately cease and desist all collection activity.” See Reidy Decl., Ex. E. While BANA claims that this language is not specific enough to revoke Plaintiff’s prior consent, at a minimum there is a triable issue of fact given both the letter and Plaintiff’s own assertions that she had repeatedly asked BANA not to call. Therefore, to the extent that BANA continued calling thereafter, the Court cannot foreclose liability under the Rosenthal Act. Indeed, it was not until after a December 6, 2016, phone call wherein Plaintiff requested that BANA stop calling her on her cell phone that it is undisputed that no further phone calls from BANA were made. SUF at Nos. 37, 38. In sum, there are too many unanswered questions, and potential factual issues, for this Court to grant summary adjudication as to Plaintiff’s Rosenthal Act claims. BANA’s request for summary judgment as to Plaintiff’s Second Claim for Relief is accordingly DENIED.