In Picazo v. Kimball, Tirey, & St. John, LLP, 2018 WL 1583228, at *5 (S.D.Cal., 2018), Judge Miller granted an Anti-SLAPP action filed by a debt collector in a Rosenthal Act claim arising from alleged misconduct in a state court UD action. Judge Miller first found that the Rosenthal Act prevailed over the litigation privilege under the facts of the particular case.
KTS argues that the litigation privilege bars Plaintiffs’ Rosenthal Act claim. KTS asserts that although the litigation privilege does not apply where the Rosenthal Act is the more specific statute, here, there is no specific Rosenthal Act provision prohibiting the filing of an unlawful detainer action and seeking daily holdover damages. Plaintiffs argue that KTS falsely alleged a debt by claiming that Plaintiffs owed money for a past period of occupancy, thereby violating provisions of the FDCPA incorporated in the Rosenthal Act and creating a conflict between the Rosenthal Act and the litigation privilege. Furthermore, Plaintiffs argue that the litigation privilege does not apply because the Rosenthal Act is always the more specific statute. KTS relies on two cases to support its argument. The first, Nickoloff v. Wolpoff & Abramson, LLP, 511 F. Supp. 2d 1043 (C.D. Cal. 2007), is a pre-Komarova case that concerned the sufficiency of documentary evidence connecting the chain of title of the debt—evidence that was provided during a legitimate arbitration proceeding. Because Nickoloff predates Komarova and is a case the court previously declined to follow in Sial v. Unifund CCR Partners, No. 08cv905 JM (CAB), 2008 WL 4079281, at *5 (S.D. Cal. Aug. 28, 2008) (finding that the Rosenthal Act prevails over the statutory litigation privilege), the court declines to follow it now. The second is Boon v. Prof’l Collection Consultants, 958 F. Supp. 2d 1129 (S.D. Cal. 2013), in which the court applied the litigation privilege to a Rosenthal Act claim premised on a time-barred state court action. The court respectfully opts not to follow the decision in Boon because, as the court noted in Petley v. San Diego Cty. Credit Union, 2017 WL 385742, at *5 (S.D. Cal. Jan. 27, 2017), the court cited only pre-Komarova district court cases. Furthermore, apart from Boon, only one other federal court decision since Komarova has applied the litigation privilege to Rosenthal Act claims. See Ordinario v. LVNV Funding, LLC, 2016 WL 852843, at *2 (S.D. Cal. Mar. 4, 2016). All other cases have rejected that approach. See, e.g., Welker v. Law Office of Daniel J. Horwitz, 699 F. Supp. 2d 1164, 1174 (S.D. Cal. 2010) (Gonzalez, J.); Huy Thanh Vo v. Nelson & Kennard, 931 F. Supp. 2d 1080, 1097 (E.D. Cal. 2013) (noting in 2013 that following Komarova, “not a single federal court has found Rosenthal Act claims to be barred by the litigation privilege”); Holmes v. Elec. Document Processing, Inc., 966 F. Supp. 2d 925, 937 (N.D. Cal. 2013); Derr v. Kimball, Tirey & St. John LLP, 2012 WL 12874923, at *3 (S.D. Cal. Aug. 14, 2012) (“Applying the litigation privilege would…eviscerate the Rosenthal Act.”). Given this weight of recent authority, the California Court of Appeal’s opinions in Komarova and Persolve, and this court’s own decisions in Sial and Petley, the court holds that the litigation privilege and the Rosenthal Act conflict in this case and, consequently, the Rosenthal Act must prevail.
Judge Miller found, however, that rent, which was the subject of the UD action, was not a “consumer credit transaction” under the Rosenthal Act. Hence, the debt collector was not a “debt collector”.