Summary
holding that the "defendant necessarily violated § 1692d when [the debt collector] failed to disclose her identity as a debt collector and the nature of the call when she left the messages on plaintiff's voice mail"
Summary of this case from Hagler v. Credit World Servs., Inc.Opinion
No. CIV. S-05-2084 FCD/KJM.
December 19, 2007.
Joshua Branden Swigart, Robert Lyman Hyde, Hyde and Swigart, San Diego, CA, for Plaintiff.
June Dittus Coleman, Mark E. Ellis, Andrew M. Steinheimer, Ellis, Coleman, Poirier, Lavoie Steinheimer, LLP, Sacramento, CA, for Defendants.
MEMORANDUM AND ORDER
This matter comes before the court on (1) plaintiff Jessica Costa's ("plaintiff") motion for partial summary judgment relating to her claims for violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. 1692 et seq., and the California Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), Cal. Civ. Code § 1788 et seq. and (2) defendant National Action Financial Services, Inc.'s ("defendant" or "NAFS") cross-motion for partial summary judgment with respect to plaintiff's claim for emotional distress damages pursuant to the FDCPA and RFDCPA. Plaintiff opposes defendant's motion, and defendant opposes plaintiff's motion. For the reasons set forth below, both plaintiff's and defendant's motions are GRANTED.
In her opposition, plaintiff moves to strike defendant's cross-motion in its entirety based on defendant's failure to timely serve a statement of undisputed facts as required by Eastern District Local Rule 56-260(a). Defendant did untimely file said statement on November 29, 2007 (Docket # 33). However, the court DENIES plaintiff's motion to strike because plaintiff was not unduly prejudiced by the late filing; plaintiff timely filed a complete and adequate response to defendant's statement of undisputed facts in conjunction with her opposition papers filed November 30, 2007 (Docket #34). Moreover, the sole evidence relied upon by defendant in its motion is plaintiff's deposition testimony — testimony which plaintiff is obviously well aware.
Because oral argument will not be of material assistance, the court orders these matters submitted on the briefs. E.D. Cal. L.R. 78-230(h).
BACKGROUND
Unless otherwise noted, the facts herein are undisputed. (Pl.'s Response to Def.'s Assumed Statement of Undisputed Facts, filed Nov. 30, 2007 ["SUF"]). Where the facts are in dispute, the court recounts plaintiff's version of the facts. (Pl.'s Statement of Disputed Facts, filed Nov. 30, 2007 ["SDF"]). Although, for the reasons set forth below, any such disputes do not preclude entry of partial summary judgment.
Sometime before March 17, 2005, plaintiff incurred a debt to NextCard. (Pl.'s Verified Complaint for Damages, filed October 15, 2005 ["Compl."], ¶ 18). Plaintiff defaulted on this debt. (Id. ¶ 20). The debt was subsequently assigned to defendant for collection. (Id. ¶ 21). On March 17, 2005, plaintiff received a voice mail message at her home. The message stated: "This message is for Jessica Costa. My name is Elizabeth. I received a phone call in my office for you. If you could please contact me back I'll be here until 4 p.m. Eastern Time. My number is 866-529-1899 extension 2936." (Def.'s Response to Pl.'s Statement of Undisputed Facts, filed Nov. 30, 2007 ("DUF"), ¶ 7).
In response to the message, the next day plaintiff telephoned the number left by Elizabeth. (SUF ¶ 3). Plaintiff did not reach Elizabeth, and left a voice mail. (Id.). The same day Elizabeth left a second message on plaintiff's home phone. (Id. ¶ 4, 5). Upon receiving the second message, plaintiff telephoned Elizabeth back using her cell phone. (Id. ¶ 7). Plaintiff reached an operator and was connected to a woman who answered the telephone by calling herself Elizabeth. (Id. ¶¶ 7, 8). Elizabeth informed plaintiff she was calling in regards to the debt owed on plaintiff's NextCard account. (Id. ¶ 8). Plaintiff explained she was not presently employed and requested a payment schedule. (Id. ¶ 9). Elizabeth told plaintiff setting up payments would be considered a refusal to pay the debt. (Id. ¶ 10). Elizabeth then asked plaintiff how she was paying her other bills, including a $400/month car payment, and whether plaintiff was obtaining money illegally. (Id. ¶¶ 13, 15). Elizabeth then suggested plaintiff should file for bankruptcy. (Id. ¶ 14). Elizabeth subsequently hung up on plaintiff. (Id. ¶ 17).
Plaintiff immediately called NAFS and reached Elizabeth through the operator. (Id. ¶ 18). Plaintiff informed Elizabeth she could not talk to plaintiff "that way," and requested to speak with Elizabeth's supervisor. (Id. ¶ 19). Elizabeth told plaintiff she could not speak with a supervisor until she got a job. (Id. ¶ 20). Elizabeth then hung up on plaintiff. (Id.). Plaintiff called Elizabeth back. (Id. ¶ 21). Elizabeth answered the phone and immediately yelled "you sure did get a job fast." (Id. ¶ 22, 32). Plaintiff requested to speak to Elizabeth's supervisor, and Elizabeth hung up the phone. (Id. ¶ 23). Plaintiff again called Elizabeth back. (Id. ¶ 24). Plaintiff reiterated her request to speak with Elizabeth's supervisor. (Id. ¶ 26). Elizabeth then suggested plaintiff "pick up a pen, preferably blue or black. Go down to McDonalds and fill out an application." (Id. ¶ 28). Elizabeth then hung up on plaintiff yet again. (Id. ¶ 31).
During all four conversations, Elizabeth never identified the company she worked for. (SDF ¶ 2). Plaintiff returned home and requested a friend call back in order to discern the company collecting on her account. (SUF ¶ 34). Plaintiff's friend, Mr. Baucom, called defendant from his personal cell phone. (Id. ¶ 35) Upon reaching an operator, Baucom asked for the name of the company. (Id.). Baucom was then asked for his phone number, which he refused to give. (Id. ¶ 36, 37). The operator informed Baucom the company had caller ID and that there was no account listed for Baucom's phone number. (Id. ¶ 38). The operator then hung up without providing the company name. (Id.). Several minutes later, Baucom called defendant from plaintiff's home phone. (Id. ¶ 39). He requested the name of the company and was told he had called NAFS. (Id. ¶ 40, 41).
Approximately a week later, plaintiff received another voice mail message from Elizabeth at her home. (SDF ¶ 1). Plaintiff also received a letter from defendant regarding her NextCard account, dated April 7, 2005. (SUF ¶ 44, 45).
During plaintiff's phone conversations with Elizabeth, and for approximately a half hour after, plaintiff shook due to stress caused by the phone calls. (SDF ¶ 5). Plaintiff claims she still shakes in response to phone calls by unknown numbers and she refuses to answer the phone. (SUF ¶ 48). Plaintiff's heart races and her palms get sweaty when she does not know the caller. (Id.). Plaintiff claims she also suffers difficulties sleeping two to three times per week. (Id. ¶ 49). Plaintiff has not seen any type of medical doctor or mental health professional for help treating her symptoms. (Id. ¶ 53). Plaintiff has not taken any type of prescription or over-the-counter medication to help treat her symptoms. (Id. ¶ 54).
STANDARD
A motion for partial summary judgment is resolved under the same standard as a motion for summary judgment. See California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. at 324. Indeed, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party,Id. at 251-52.
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial."First Nat'l Bank, 391 U.S. at 289. In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985),aff'd, 810 F.2d 898 (9th Cir. 1987).
ANALYSIS
A. FDCPA
Plaintiff argues defendant violated 15 U.S.C § 1692d(6) and 15 U.S.C § 1692e(11) in failing to provide meaningful disclosure of defendant's identity in voice mail messages left on plaintiff's home phone. (Pl.'s Mot. Partial Summary Judgment, filed Oct. 4, 2007 ("Pl.'s Mot."), at 2). Defendant contends Elizabeth's failure to disclose the identity of NAFS was not a violation of § 1962d(6), and that the messages left for plaintiff were not a "communication" as defined by § 1692e(11) and thus, not actionable under the statute. (Def.'s Mot. Partial Summary Judgment, filed Nov. 30, 2007 ("Def.'s Mot."), at 5, 8-9).
Congress enacted the FDCPA in 1977 to eliminate abusive debt collection practices, to insure that debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent state action to protect consumers against debt collection abuses. 15 U.S.C. § 1692e; see also Wade v. Regional Credit Association, 87 F.3d 1098, 1099 (9th Cir. 1996) (discussing purpose of the FDCPA). As such, the statute is liberally construed to protect the "least sophisticated debtor." Clark v. Capital Credit Collection Services, Inc., 460 F.3d 1162, 1171 (9th Cir. 2006);see also Clomon v. Jackson, 988 F.2d 1314, 1318-19 (2d Cir. 1993). This objective standard "ensure[s] that the FDCPA protects all consumers, the gullible as well as the shrewd . . . the ignorant, the unthinking and the credulous." Clomon, 988 F.2d at 1318-19.
1. Section 1692d(6)
Defendant contends the messages left by its agent disclosed the caller (Elizabeth) and were in no way "harassing, oppressive, or abusive." Therefore, the messages did not violate § 1692d(6). Moreover, if the caller were required to identify herself as a debt collector, § 1692d(6) would be inconsistent with 15 U.S.C. § 1692c(b) which prohibits debt collectors from communicating with third parties.
Defendant also attempts to argue that the messages were left in order to "locate the debtor" and therefore should not be subject to the disclosure requirements of § 1692d(6). (Def.'s Opp'n at 5, 6). However, defendant cites no case law in support of this proposition, and absent such, the court is not persuaded by defendant's passing argument.
Section 1692d(6) states, in relevant part, that:
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. Without limiting the general application of the foregoing, the following conduct is a violation of this section: . . . (6) . . . the placement of telephone calls without meaningful disclosure of the caller's identity. (Emphasis added.)
While various district courts have assigned different definitions to the term "meaningful disclosure," the United States District Court for the Central District of California, in Hosseinzadeh, recently provided a succinct and comprehensive definition, which this court finds persuasive considering factual similarities between this case and Hosseinzadeh. In Hosseinzadeh, the court defined "meaningful disclosure" as "requir[ing] that the caller [s]tate his or her name and capacity, and disclose enough information so as not to mislead the recipient as to the purpose of the call." Hosseinzadeh v. M.R.S. Assocs., Inc., 387 F. Supp. 2d 1104, 1112 (C.D. Cal. 2005).
Neither the Ninth Circuit or any other circuit court has ruled on this issue.
In Hosseinzadeh, the plaintiff received several pre-recorded messages on her home phone. Id. at 1008. The company representative stated: "This message is for Ashraf. Asharf my name is Clarence Davis. I have some very important information to discuss with you in reference to a file that has been forwarded to my office that involves you personally. Contact my office right away at 877-647-5945, extension 3618."Id. Applying the "meaningful disclosure" standard, the court found that the messages left for the plaintiff did not satisfy the requirements of § 1692d(6). Id. at 1112. The court held that "defendant violated § 1692d(6) when its employees failed to disclose defendant's identity and the nature of defendant's business in the messages left on plaintiff's answering machine."Id. (emphasis added).
The United States District Court for the Northern District of California has noted that § 1692d(6) applies equally to calls made by an automated service and those calls made by a live person. See Joseph v. J.J. MacIntyre Companies, L.L.C., 281 F. Supp. 2d 1156, 1163 (N.D. Cal. 2003).
The messages left for plaintiff in the present case are strikingly similar to those left in Hosseizadeh. In both instances, the caller failed to disclose he or she was calling on behalf of a collection agency. (DUF ¶ 7); Hosseizadeh, 387 F. Supp. 2d at 1180. Similarly, the caller failed to divulge the true nature and purpose of the call — that is, to collect a debt owed by each of the plaintiffs. (DUF ¶ 7); Hosseizadeh, 387 F. Supp. 2d at 1180. As such, applying Hosseizadeh to the facts here, defendant necessarily violated § 1692d(6) when Elizabeth failed to disclose her identity as a debt collector and the nature of the call when she left the messages on plaintiff's voice mail. See accord Foti v. NCO Financial Systems, Inc., 424 F. Supp. 2d 643 (S.D.N.Y. 2006) (holding collector's identification of itself by name in pre-recorded message did not satisfy FDCPA's requirement that it disclose that the communication is from a debt collector); Knoll v. Allied Interstate, Inc., 502 F. Supp. 2d 943 (D. Minn. 2007) (finding the debtor stated a claim under the FDCPA section requiring meaningful disclosure of a caller's identity where the debt collector had a practice of transmitting the false name "Jennifer Smith" via a caller identification device to consumers to lure them into answering the phone or returning the collector's calls).
The FDCPA and the RFDCPA are "strict liability" statutes. See Clark v. Capital Credit Collections Servs., 460 F.3d 1162 (9th Cir. 2006).
Defendant argues, in rebuttal, that the court should not follow this line of cases, as the type of "full" disclosure on a voice mail message, required by Hosseizadeh, may leave defendant open to liability under other sections of the statute, specifically § 1692c(b). Defendant's argument is unpersuasive. In the present case, defendant left messages on plaintiff's home phone. Compare Horkey v. J.V.D.B. Associates, Inc., 333 F.3d 759 (7th Cir. 2003) (upholding statutory damages under § 1692d for collection agency's phone calls to plaintiff at her place of employment). Plaintiff lived alone at the time and has testified no one else unintentionally heard the messages left by Elizabeth. (Ex. B to Def. Mot., Costa Depo. at 76:19-24). "[T]he legislatures' concern in enacting these provisions about privacy violations resulting from deliberate disclosure of the debtor's status to third parties such as the debtor's employer has far less applicability to phone calls made to the debtor's phone number at his or her residence for similar reasons." Joseph v. J.J. MacIntyre Companies, L.L.C, 281 F.Supp. 2d 1156, 1164 (N.D. Cal. 2003). Therefore, while defendant's argument may carry weight in certain circumstances, under the undisputed facts here, its argument is simply inapplicable.
2. Section 1692e(11)
Plaintiff argues the plain language of § 1692e(11) makes clear defendant was required to disclose that the messages were from a debt collector attempting to collect a debt owed by plaintiff. Defendant argues the messages left by Elizabeth for plaintiff were not "communications" as defined by § 1692a(2) and thus did not fall within the meaning of § 1692e(11).
Section 1692a(2) defines "communications" as "the conveying of information regarding a debt directly or indirectly to any person through any medium." 15 U.S.C. § 1692a(2) (emphasis added). As such, it is clear the messages left by defendant on plaintiff's answering machine constitute "communications" within the meaning of § 1692a(2). Although the messages do not mention specific information about plaintiff's debt or the nature of the call, § 1692a(2) applies to information conveyed "directly or indirectly." Hosseinzadeh, 387 F. Supp. 2d at 1116. Here, defendant's messages conveyed information to plaintiff, including the fact that there was a matter that she should attend to and instructions on how to do so. Id. Therefore, the messages left by defendant are "communications," subjecting defendant to the provisions of § 1692e.
Section 1692e prohibits a debt collector from using any "false, deceptive, or misleading representation or means in connection with the collection of any debt." Section 1692e sets forth a non-exclusive list of conduct that constitutes a violation of Section 1692e. Section 1692e(11) states:
(11) The failure to disclose . . . in [the] initial oral communication that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action. (Emphasis added).
In the present case, it is undisputed the messages left on plaintiff's voice mail did not disclose the caller's identity (beyond stating her name as Elizabeth) or the nature of the call. (DUF ¶ 7). Thus, defendant violated § 1692e(11) because the messages left for plaintiff did not convey the required information. See Hosseinzadeh, 387 F. Supp. 2d at 1116; see also Foti v. NCO Financial Systems, Inc., 424 F. Supp. 2d 643, 669 (S.D.N.Y. 2006) (finding that "NCO Financial Systems" was insufficient to satisfy disclosure requirement of § 1692e(11) when the message left for the plaintiff contained "no other suggestion or clue that the correspondence [was] from a debt collector"). Namely, Elizabeth, the caller, failed to state her messages were from a debt collector and in regards to the debt owed on plaintiff's NextCard account. Foti, 424 F. Supp. 2d at 669 ("[I]t appears defendant's messages are "communications" subjecting defendant to the provisions of § 1692e(11), it also appears that the defendant has violated § 1692e(11) because the messages do not convey the information required by § 1692e(11), in particular, that the messages were from a debt collector").
The court notes, however, that this policy is not well served in instances in which a plaintiff returns the call of a debt collector knowing she is calling a collection agency. See Briggs v. Credit Collections, Inc., 2007 WL 4034997 at *3 (W.D. Okla. Nov. 15, 2007). Although the purpose of the FDCPA requires "a liberal construction of § 1692e(11) so as to protect the least sophisticated consumer, the purpose does not require patently unnecessary identification in subsequent communications when there are facts to suggest . . . that the consumer placed the call knowing who [she] was calling and understanding that [she] was speaking with a debt collector regarding debt collection."Id. Requiring a debt collector to interrupt the conversation to interject she was a debt collector would likely be "a pointless formality." Id. (citing Dikeman v. National Educators, Inc., 81 F.3d 949, 954 (10th Cir. 1996)). Therefore, the court finds that the requirement of § 1692e(11) does not apply to the subsequent calls plaintiff made to defendant after Elizabeth disclosed during the initial phone conversation that the calls were in regards to collection on plaintiff's NextCard account.
In summary, the court GRANTS plaintiff's motion for partial summary judgment with respect to violations under §§ 1692d(6) and 1692e(11) of the FDCPA. In light of the factors enumerated in 15 U.S.C. § 1692k(b)(1), plaintiff is awarded statutory damages in the amount of $1,000.00.
B. RFDCPA
Plaintiff argues violations of the FDCPA also constitute violations of California's RFDCPA. Therefore, plaintiff asserts defendant necessarily violated the RFDCPA when it violated the FDCPA. Defendant contends it did not violate the FDCPA and therefore did not violate the RFDCPA.
In order to promote consistent state action, the RFDCPA incorporates the majority of the FDCPA in California Civil Code § 1788.17. Section 1788.17 states:
Notwithstanding any other provision of this title, every debt collector collecting or attempting to collect a consumer debt shall comply with the provisions of Sections 1692b to 1692j, inclusive of, and shall be subject to the remedies in Section 1692k of, Title 15 of the United States Code.
Therefore, claims asserted under the FDCPA constitute violations of the RFDCPA. Cal. Civil Code § 1788.17. Accordingly, a plaintiff who recovers under the FDCPA is entitled to damages under the corresponding section of the RFDCPA. Cal. Civil Code § 1788.30(a). Such recovery is not, as alleged by defendant, improper "double recovery." See Cal. Civ. Code § 1788.32 ("remedies provided herein are intended to be cumulative. . . ."); Adams v. CIR Law Offices, LLP, 2007 WL 2481550 (S.D. Cal. Aug. 29, 2007).
The court thus awards plaintiff statutory damages in the amount of $1,000.00 pursuant to California Civil Code § 1788.17, for the same reasons as set forth above.
C. Emotional Distress Damages Under the FDCPA and RFDCPA
Defendant moves for summary judgment as to plaintiff's claim for emotional distress damages pursuant to the FDCPA and RFDCPA, arguing plaintiff cannot establish the requisite elements for a state law claim of intentional infliction of emotional distress ("IIED"), and thus, she cannot maintain a claim for emotional distress damages under the statutes. (Def.'s Mot. at 6). Plaintiff opposes defendant's motion, arguing that a plaintiff need not prove the elements of a claim for IIED under state law to recover emotional distress damages pursuant to the FDCPA and RFDCPA, and that under the applicable lower threshold for such claims, plaintiff can survive summary judgment. (Pl.'s Opp'n at 8).
Under the FDCPA and RFDCPA, plaintiff may recover in addition to statutory damages, actual damages, including damages for emotional distress, sustained as a result of defendant's conduct in violation of the statutes. 15 U.S.C. § 1692k(a)(1); Cal. Civ. Code § 1788.17. Here, plaintiff does not claim any out-of-pocket losses or other actual damages, except damages for alleged emotional distress she sustained as a result of defendant's conduct.
District courts are split over whether a plaintiff's claims for emotional distress damages under the FDCPA are evaluated under the state law governing the tort of IIED or some lower standard. Under the latter approach, courts have concluded that an FDCPA plaintiff does not need to meet state law standards for IIED in order to recover emotional distress damages for an FDCPA violation.See e.g., Panahiasl v. Gurney, 2007 WL 738642 at *1 (N.D. Cal. March 8, 2007);see also Foster v. D.B.S. Collection Agency, 2006 WL 3491867 (S.D. Ohio Dec. 5, 2006); McGrady v. Nissan Motor Acceptance Corp., 40 F. Supp. 2d 1323, 1338-39 (M.D. Ala. 1998). Under this approach, courts instead have analogized the FDCPA to the Fair Credit Reporting Act ("FCRA"). Panahiasl, 2007 WL 738642 at *1-2. "Under the FDRA, a statutory scheme very similar to the FDCPA, a plaintiff who proves a violation of the [A]ct is entitled to actual damages for emotional distress arising from the violation, without first having to prove a right of action under state law." Id. at *2. Applying this rational, courts hold that when a violation of the FDCPA has been established, actual damages for emotional distress can be proven independently of state law requirements; a plaintiff need not prove state law tort elements to be compensated for their emotional distress. Id. However, a plaintiff must demonstrate more than transitory symptoms of emotional distress and unsupported self-serving testimony by a plaintiff is not sufficient. Wantz v. Experian Info. Systems, 386 F.3d 829, 834 (7th Cir. 2004); Cousin v. Trans Union Co., 246 F.3d 359, 371 (5th Cir. 2001).
The Ninth Circuit has not ruled on this issue.
Alternatively, other courts require a plaintiff to prove a claim for IIED under state law in order to collect damages for emotional distress. See Pflueger v. Auto Finance Group, Inc., 1999 WL 33738434 at *4 (C.D. Cal. 1999); cf. Carrigan v. Central Adjustment Bureau, Inc., 502 F. Supp. 468, 470-71 (N.D. Ga. 1980) (holding plaintiff's claim for intentional infliction of mental distress arising from violations of the FDCPA met state requirements under Georgia tort law); Venes v. Professional Service Bureau, Inc., 353 N.W.2d 671, 674-75 (Minn.Ct.App. 1984) (finding plaintiff satisfied state elements of IIED and could thus recover emotional distress damages). Under California law, to prove a claim for IIED a plaintiff must show: (1) extreme and outrageous conduct by the defendant; (2) with intent to cause plaintiff emotional distress; (3) severe emotional distress suffered by plaintiff; and (4) defendant's conduct actually and proximately caused plaintiff's severe emotional distress. See Davidson v. City of Westminster, 32 Cal. 3d 197, 209 (1982) (enumerating elements of IIED under California law); see also Pflueger, 1999 WL 33738434 at *4 (listing elements of IIED plaintiff must prove to succeed in claims arising under FDCPA and RFDCPA).
This court finds persuasive those cases requiring a plaintiff to establish the elements of a claim for IIED under state law in order to sustain a claim for emotional distress damages under the FDCPA and RFDCPA. First, Section 1692 et seq. contains no indication Congress intended to create a more lenient IIED standard in enacting the FCDPA. Moreover, the FDCPA expressly requires to recover above and beyond statutory damages, definable actual damages. 15 U.S.C. § 1692k(a)(1). There must be some standards to adjudge those damages, and the court finds that the standards for a state IIED claim serve that purpose well as they ensure that the alleged damages are real and quantifiable.
Here, plaintiff cannot establish the requisite elements of a claim for IIED. Indeed, plaintiff does not discuss application of the facts to the state law standard for IIED in her opposition; on that basis alone, the court could grant the motion in defendant's favor. However, the court nonetheless discusses its findings.
The subject conduct does not rise to the level of "extreme and outrageous" conduct as a matter of law. At most, plaintiff alleges conduct that was rude and impolite; significantly, the conduct occurred in only two voice mail messages and four brief conversations taking place on one afternoon. Such conduct is not actionable as an IIED claim. Cole v. Fair Oaks Fire Prot. Dist., 43 Cal.3d 148, 155 (1987) ("Mere insults, indignities, threats, annoyances, petty oppressions or other trivialities" are not actionable as "outrageous conduct"). Moreover, specifically in collection cases, courts have long recognized that the very nature of collection efforts often cause a debtor to suffer emotional distress. See Bowden v. Spiegel, 96 Cal. App. 2d 793, 789 (1950). To be actionable as an IIED claim, however, the conduct must go beyond "all reasonable bounds of decency." Id.; see also Ross v. Creel Publishing, 100 Cal. App. 4th 736, 746-47 (2003). The conduct here simply does not meet this threshold.
Additionally, the court notes that in this case, plaintiff initiated the bulk of the conduct with defendant by continuing to call Elizabeth back after Elizabeth hung up on plaintiff several times. This is not a case in which the debt collector repeatedly called and harassed a plaintiff despite being asked not to call. Here, plaintiff could have chosen to stop the contact altogether but did not do so.
Furthermore, plaintiff cannot demonstrate she suffered "extreme emotional distress." Plaintiff claims only that she was upset and angry at the time, that her hands shake and are sweaty when she now receives calls from unknown persons, and that she has occasional trouble sleeping to date; she has not, however, seen any medical professionals as a result of her alleged aliments and does take any medications, prescription or over-the-counter. Such symptoms are not sufficient to demonstrate extreme distress.Girard v. Ball, 125 Cal. App. 3d 722, 787-788 (1981). In Girard, the plaintiff claimed emotional distress after a debt collector attempted to collect on a debt against him by making phone calls and sending collection letters. The plaintiff claimed he "couldn't sleep" and suffered from "anxiety symptoms" and nervousness, but he sought no treatment for his condition. Id. Although subsequently the debtor claimed more extensive symptoms, the court held that emotional distress damages could not be sought for such "trivial" and "transitory" claims. Id. Such is also the case here.
Finally, even were the court to consider plaintiff's claims under a lower standard, neither the messages alone nor the entirety of plaintiff's conversations with defendant rises to the level necessary for plaintiff to recover emotional distress damages. Even those courts that have concluded that an FDCPA plaintiff need not meet state law standards for IIED, nonetheless require more than transitory symptoms of emotional distress for a plaintiff to recover damages. See Wantz, 386 F.3d at 834; Cousin, 246 F.3d at 371. For example, in Wantz, the court illustrated the types of "conclusory allegations" that do not permit emotional distress damages under the FDCPA:
Wantz's only evidence as to emotional distress was his testimony that: (1) he was `humiliated and embarrassed' every time he was rejected for credit;' (2) it is `mentally and emotionally distressful when dealing with credit reporting agencies;' and (3) it is `embarrassing to go somewhere and have them check your credit report and see all that stuff on there' . . . Without further evidence to buttress those assertions, Wantz's case [can] not go forward.386 F.3d at 834. Similarly, in Cousin, the court described the types of evidence necessary to support a claim for emotional distress damages, stating that a plaintiff alleging intangible loss must set forth evidence with specificity which includes "corroborating testimony or medical or psychological evidence in support of the damage award." 246 F.3d at 371 (emphasis added);see accord Dawson v. Washington Mutual Bank, 390 F.3d 1139, 1149-50 (9th Cir. 2004) (noting "[n]on-experts, such as family members, friends, or co-workers, may testify to manifestations of mental anguish and clearly establish that significant emotional harm occurred").
Here, the only evidence of plaintiff's emotional distress is her own testimony, and this evidence demonstrates that her alleged emotional distress was transitory in nature and of the type not recoverable under the FDCPA. While plaintiff is correct that she is not required to present expert testimony in support of her claim, Zhang v. American Gem Seafoods, 339 F.3d 1020, 1040 (9th Cir. 2003) (upholding emotional distress damages based only on testimony), she fails to acknowledge that she cannot rely solely on her uncorroborated testimony to establish emotional distress. Wantz, 386 F.3d at 834; Cousin, 246 F.3d at 371. Indeed, she has no corroborating evidence — no witnesses to confirm her symptoms and no documentary evidence to support her claims. Without such evidence to buttress her assertions, plaintiff's claims cannot go forward. Wantz, 386 F.3d at 834.
In conclusion, although defendant's representative, Elizabeth, was unnecessarily rude and unkind to plaintiff, plaintiff's claims of stress do not rise to the level necessary to set forth a viable claim for IIED under either state law or any lower threshold established in some case law. Therefore, for the reasons set forth above, defendant's motion for partial summary judgment with respect to plaintiff's claim for emotional distress damages is GRANTED.
CONCLUSION
For the foregoing reasons, the court GRANTS plaintiff's motion for partial summary judgment with respect to her claims under 15 U.S.C. § 1692d(6) and 1692e(11) of the FDCPA as well as her corollary claims under the RFDCPA. The court also GRANTS defendant's motion for partial summary judgment as to plantiff's claim for emotional distress damages under the FDCPA and RFDCPA.
The court notes that the instant order does not apparently resolve the entirety of this case. Both parties moved only for partial summary judgment, and the complaint appears to allege other violations of the FDCPA and correspondingly the RFDCPA. (Compl., filed Oct. 18, 2005, pursuant to order of transfer by the United States District Court for the Northern District of California).
IT IS SO ORDERED.