In Riley v. Giguiere, 2009 WL 1748721 (E.D.Cal. 2009), Judge Karlton addressed whether an attorney involved in an unlawful detainer action was a ‘debt collector’ under the FDCPA. Judge Karlton held that the attorney was ‘regularly’ engaged in debt collection, explaining:
Briefly, a debt collector includes anyone who “regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a. The Ninth Circuit has not offered any further guidance on the interpretation of this definition, except to hold that it includes attorneys and that a person whose debt collection constitutes 80 to 100 percent of his total work is, with “no question,” a debt collector. Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507, 1513 (9th Cir.1994). The Ninth Circuit also cited approvingly Scott v. Jones, 964 F.2d 314, 316 (4th Cir.1992), where the court held an individual was a debt collector where 70 to 80 percent of his legal fees were generated through debt collection work. Fox, 15 F.3d at 1513 n. 5. [P] In defining “debt collector,” other courts have considered the number of collection activities and percentage of the individual’s total workload this represents, the frequency of the collection activities, whether the defendant has personnel who work on collection activities, whether the defendant has systems to facilitate debt collection, and whether the collection activities take place as part of an on-going client relationship on whose behalf the defendant does collection work. See Goldstein v. Hutton, In-gram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56, 62-63 (2d Cir.2004); Crossley v. Lieberman, 868 F.2d 566, 569-70 (3rd Cir.1989); Schroyer v. Frankel, 197 F.3d 1170, 1176 (6th Cir.1999). [P] Finally, the court observes that statutes are to be construed by their plain meaning. See, e.g., Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917). “Regular” is defined as “appearing or occurring repeatedly from time to time” and is synonymous with “frequent, habitual, periodic, repeated, steady.” Merriam-Webster Thesaurus (2006). Neither of the parties have directed the court to an alternative definition of the statutory term. [P] With these principles in mind, it is apparent that defendant is a debt collector under the FDCPA. It is undisputed that collections actions constitute 40 to 50 percent of her total work, which includes a client for whom she performs exclusively debt collection work as well as work for various clients on unlawful detainer actions, which all include demands for payment.
In addition to addressing a number of other issues, Judge Karlton explained the standard an FDCPA Plaintiff must prove in order to recover emotional distress as “actual damages” under the FDCPA. Judge Karlton analogized to FCRA, rather that to common law torts of Intentional Infliction of Emotional Distress:
In her motion for summary judgment, defendant argues that plaintiff must prove the elements of a claims for intentional infliction of emotional distress under California law in order to recover damages for emotional distress for violations of the FDCPA. Defendant relies on two unpublished cases in which two judges of this court have taken this approach. . . . With all due respect to my two learned colleagues, I cannot agree. [P] Under the FDCPA, the plaintiff may recover for “any actual damage sustained” as a result of the violations. 15 U.S.C. § 1692k(a)(1). In considering the proof required to substantiate a damage award for violations of the FDCPA, courts have noted the statute’s similarity to the Fair Credit Reporting Act ( FCRA). . . . In reaching this conclusion, it relied on decisions of the Fifth and Eighth Circuits Courts of Appeals, which had held that emotional distress damages were compensable under the FCRA upon plaintiff’s showing that he actually suffered symptoms of emotional distress. . . . [P] The court can find no reason why the same standard would not apply to the damages provision of the FDCPA.