In Ditlevson v. Legal Express, Ltd., 2015 WL 7454147, at *1-2 (N.D.Cal., 2015), Judge Chesney found that a Rosenthal Act defendant must plead specific facts to support a bona fide error affirmative defense, and cannot plead the litigation privilege as an affirmative defense at all.
In the Third Affirmative Defense, Legal Express alleges that “any violation was unintentional and resulted despite the maintenance of procedures reasonably adopted to avoid any such violation.” (See Answer ¶ 103.) By such pleading, however, Legal Express has done no more than paraphrase the statutory language of provisions in FDCPA and the RFDCPA, see 15 U.S.C. § 1692k(c) (providing defendant shall “not be held liable” where “violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error”); Cal. Civ. Code § 1788.30(e) (providing defendant has “no civil liability” where “violation was not intentional and resulted notwithstanding the maintenance of procedures reasonably adapted to avoid any such violation”), and, as Ditlevson correctly observes, Legal Express has failed to allege any facts in support of the defense or to otherwise provide fair notice of the basis therefor. See Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979) (holding “key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense”; finding statute of limitations adequately pleaded as defense, where conclusory statement thereof was supported by “attached memorandum” identifying specific provision on which defendant relied); see also Shechter v. Comptroller, 79 F.3d 265, 270 (2nd Cir. 1996) (holding “defenses which amount to nothing more than mere conclusions of law and are not warranted by any asserted facts have no efficacy”) (internal quotation and citation omitted). Nonetheless, as it does not appear Legal Express would be unable to provide fair notice of the basis for its Third Affirmative Defense, to state, for example, the procedures it allegedly has adopted to avoid violations of the nature here alleged, the Court will afford Legal Express leave to amend its answer to do so. In the Fourth Affirmative Defense, Legal Express alleges the claims are “barred by the litigation privilege embodied either in California Civil Code § 47(b) or under state and federal common law.” (See Def.’s Answer ¶ 104.) Ditlevson argues that the litigation privilege is not a cognizable defense to the claims alleged herein. The Court agrees. First, under state law, the California Court of Appeal has held the litigation privilege is not a defense to a claim under the RFDCPA, see Komarova v. National Credit Acceptance, Inc., 175 Cal. App. 4th 324, 338-40 (2009) (holding § 47(b), which sets forth privilege for communications in judicial proceedings, provides no defense to claims brought under RFDCPA; noting to hold otherwise “would effectively immunize conduct that the Act prohibits”) (internal quotation and citation omitted), and Legal Express has not argued, let alone shown, the California Supreme Court would rule to the contrary, see Klingebiel v. Lockheed Aircraft Corp., 494 F.2d 345, 346 n. 2 (9th Cir. 1974) (holding “[d]ecisions of the California Courts of Appeal are to be followed by a federal court where the Supreme Court of California has not spoken on the question, in the absence of convincing evidence that the highest court of the state would decide differently”). Second, under federal law, the “Noerr-Pennington doctrine,” which requires federal statutes be construed to “avoid burdening conduct that implicates the protections afforded by the [First Amendment’s] Petition Clause,” is not a defense to an FDCPA claim, at least where the claim is based on the defendant’s having made false statements in connection with a court proceeding. See Hartman v. Great Seneca Financial Corp., 569 F.3d 606, 615-16 (6th Cir. 2009) (holding defense under Noerr-Pennington not available where FDCPA claim based on defendant’s allegedly having submitted falsified exhibit to state court); Sial v. Unifund CCR Partners, 2008 WL 4079281, at *3-4 (S.D. Cal. August 28, 2008) (holding Noerr-Pennington doctrine did not bar claim based on defendant’s having “submitted false statements in support of [a] request for default judgment”).