CEB Prac. Guide § 2A.15 -- Persons to Whom the FDCPA Apply -- California -- California's Regulation of Attorney Practices

On July 15, the DFPI issued proposed regulations on the scope of  debt collection licensure required by the DCLA.  The text of the proposed regulations can be found  here:  PRO-05-21-Text-DCLA-Invitation-for-Comments.-7.14.22 There are a number of significant proposed regulations for licensees, applications, or potential licensees. First, the DFPI's proposed regulations would confirm that W-2 or true employees are not required to… Read More

In Raphael Aus. v. Alorica, Inc., No. 2:20-cv-05019-ODW (PVCx), 2021 U.S. Dist. LEXIS 240677, at *5-6 (C.D. Cal. Dec. 16, 2021), Judge Wright dismissed a TCPA claim but allowed a Rosenthal Act claim to proceed.  As to the TCPA claim, Judge Wright held: The parties dispute whether alleging that a system calls a prepopulated list of customers or clients is… Read More

In Rodriquez v. Law Office of Robert King, --- F.Supp.3d ----, 2016 WL 3638119 (C.D. Cal. 2016), Judge Otero found that collections communications made in the course of a state law UD action were not protected by the litigation privilege. As a threshold matter, Defendants argue that, if the FDCPA or Rosenthal Act applied, the eviction notice would be subject to… Read More

In Lujan v. Professional Collection Consultants, 2014 WL 6698082 (Cal.App. 1 Dist. 2014), the Court of Appeal in an unpublished case found that Civil Code § 1714.10 does not provide protection to a debt collection attorney from a Rosenthal Act claim where no conspiracy claim was alleged and where the debt collection attorney engaged in conduct external to his/her role… Read More

In Do v. Hollins Law, P.C., 2013 WL 4013659 (N.D.Cal. 2013), a debt collection law firm filed an anti-SLAPP motion against the Plaintiff arising from the Plaintiff’s Rosenthal Act claim.  Judge White denied the anti-SLAPP motion, finding that the law firm’s activities were not protected by the litigation privilege and the law firm was, in fact, subject to the Rosenthal… Read More

In Lawton v. Cavalry Investments LLC, 2013 WL 3929707 (C.D.Cal. 2013), Judge Tucker excluded a law firm from the RFDCPA:  "Plaintiff alleges that Defendants violated § 1788.15(a) of the Rosenthal Act by “filing an illegal lawsuit” against Plaintiff. (Compl.¶ 16.)  Lawyers are expressly excluded from the Rosenthal Act's definition of “debt collector.” Cal. Civ.Code § 1788.2(c) (“The term ‘debt collector’… Read More

In Davis v. Hollins Law, 2013 WL 1091221 (E.D.Cal. 2013), Judge Karlton (again) found that that the “attorney” exemption from the definition of “debt collector” under the Rosenthal Act does not extend to “law firms.”  Judge Karlton also found Defendants’ anti-SLAPP motion wanting because the phone calls left were not meaningfully in anticipation of litigation. Defendant argues that it left… Read More

Judge Karlton's precedent-setting and liability imposing decisions under the FDCPA are numerous.  (See., e.g, Newman v. Checkrite California, Inc., 912 F.Supp. 1354, E.D.Cal. 1995)(debt collector vicariously liable for debt collection activities of attorney; no FDCPA defense that collector was following the orders of the superiors; litigation privilege does not apply to FDCPA); Newman v. Checkrite California, Inc., 1994 WL 896637… Read More

In Tonnesen v. Legal Recovery Law Offices, Inc., 2012 WL 5932789 (E.D.Cal. 2012), Judge Mendez declined to dismiss a Rosenthal Act claim against a law firm, finding that the law firm – as opposed to individual lawyers -- was not exempt. Defendant alternately argues that the Rosenthal Act claims should be dismissed because it is a law firm and the… Read More

In McNichols v. Moore Law Group, 2012 WL 667760 (S.D.Cal. 2012), Judge Hayes held (without analysis) that a Plaintiff stated vicarious FDCPA liability against a Bank for the collection actions of its counsel.    Plaintiff alleges in the Complaint that Defendant Dis-cover Bank “uses an instrumentality of interstate commerce or the mails in a business the principal purpose of which… Read More

In Makreas v. Moore Law Group, A.P.C., 2012 WL 359710 (N.D.Cal. 2012), Judge Chesney found that the Plaintiff stated certain claims against a debt collection attorney, but not against the creditor whose debt the attorney was collecting.  In the context of evaluating a previous Rule 68 offer, the District Court confirmed that the Rosenthal Act and FDCPA penalties are “per… Read More

In Bautista v. Hunt & Henriques, 2012 WL 160252 (N.D.Cal. 2012), Judge Spero found a telephonic harassment claim too remote from litigation to trigger protection under California’s anti-SLAPP statute, explaining:   In Briggs, supra, the California court of appeal explained that “just as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are… Read More

In Moriarity v. Henriques, 2011 WL 3568435 (E.D.Cal. 2011), Judge Thurston found that an in pro per debtor could state a claim against a law firm under the Rosenthal Act, but not against its individual attorneys, explaining: Notably, the RFDCPA excludes attorneys from the definition of “debt collectors” while the FDCPA does not. Compare Cal. Civ.Code § 1788.2(c) ( “the term ...… Read More

In Owings v. Hunt & Henriques, 2010 WL 3489342 (S.D.Cal. 2010), Judge Lorenz found that a debt collector violated the Rosenthal Act in the collection of a debt from a National Guardsman called into military service.    The definition of “debt collector” under California Civil Code Section 1788.2(c) expressly excludes “an attorney or counselor at law.” FN2 A creditor's counsel… Read More