Olson v. Carter-Jones Collections

Full title: KIMBERLY R. OLSON, Plaintiff and Appellant, v. CARTER-JONES COLLECTIONS et…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Siskiyou)

Date published: Oct 2, 2020

No. C085538 (Cal. Ct. App. Oct. 2, 2020)

Opinion

C085538

10-02-2020

KIMBERLY R. OLSON, Plaintiff and Appellant, v. CARTER-JONES COLLECTIONS et al., Defendants and Respondents.

KRAUSE, J.

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SC CV CV 09-0450)

In 2009, as she was attempting to refinance her home, plaintiff Kimberly R. Olson discovered that a collections account appeared on her credit reports. The account, reported by defendant Carter-Jones Collections (Carter-Jones), doing business as Northern Credit Service (NCS), a collections agency, listed the allegedly delinquent debt, originally owed to defendant Mortgage Center, in the amount of $455.

Plaintiff, appearing in propria persona, sued Carter-Jones, NCS, Mortgage Center, Kent Pederson, president of Carter-Jones, and Marsha Pitkin, manager of NCS. Following the close of plaintiff's case at a bench trial, defendants moved for nonsuit. The trial court converted the motion to one for judgment pursuant to Code of Civil Procedure section 631.8,¹ and granted defendants' motion as to all causes of action, concluding that plaintiff's allegations "were so lacking in merit that the action is frivolous as a matter of law and therefore lacking in good faith." Based on this conclusion, the trial court awarded attorney fees and costs to defendants pursuant to Civil Code section 1788.30. Thereafter, plaintiff submitted a settled statement, which the trial court certified. However, it subsequently considered defendants' objections and issued an amended settled statement.

1 Undesignated statutory references are to the Code of Civil Procedure.

On appeal, plaintiff asserts the trial court erred in (1) its process leading to the second modified settled statement; (2) considering defense evidence but refusing to afford her the opportunity to present additional evidence and to rehabilitate witnesses before granting defendants' motion for judgment in violation of subdivision (a) of section 631.8; (3) granting defendants' motion for judgment; and (4) awarding attorney fees.

We conclude that the record does not support the award of attorney fees pursuant to Civil Code section 1788.30, subdivision (c). Accordingly, we shall modify the judgment by vacating the award of attorney fees and modify the order awarding attorney fees. Otherwise, we affirm the judgment and orders appealed from.

FACTUAL AND PROCEDURAL BACKGROUND

First Amended Complaint

In her first amended complaint, plaintiff asserted 19 causes of action. The basis for all causes of action was defendants' "actions relating to an alleged debt they represent as being assigned to them by Mortgage Center, and to which they illegally added interest and fees, and reported (on multiple occasions) to the three major credit reporting agencies as delinquent and defaulted." Plaintiff had applied for a home refinancing loan with nonparty the Peoples Bank in February 2009. The Peoples Bank obtained plaintiff's credit report, which contained an account, reported by NCS, with a status of "defaulted/delinquent" attributed to Mortgage Center in the amount of $455. Plaintiff contacted the three major credit reporting agencies to dispute the account and, on March 16, 2009, sent a letter by fax to NCS disputing the debt. Defendants continued reporting the account to the credit reporting agencies and they did not notify the reporting agencies that the debt was disputed. Plaintiff asserted that as a result of defendants' action (or inaction), her credit score dropped below the threshold needed to obtain the loan and she was unable to refinance her home.

Plaintiff asserted that defendants' actions violated multiple provisions of the federal Fair Debt Collections Practices Act (FDCPA; 15 U.S.C. § 1692 et seq.) and California's Rosenthal Fair Debt Collection Practices Act (RFDCPA; Civ. Code, § 1788 et seq.), and that each violation also was an unlawful business practice under Business and Professions Code section 17200 et seq. (first through 14th causes of action). Plaintiff further asserted causes of action for defamation (15th cause of action), seeking punitive damages (16th cause of action), for willful and reckless misrepresentation to a third party (17th cause of action), for negligence (18th cause of action), and for restitution and injunctive relief (19th cause of action).

The Trial ²

2 Our description of the trial proceedings is based on the second modified settled statement, filed in the trial court on March 13, 2019. Issues pertaining to this settled statement are discussed in part I of the Discussion, post.

Plaintiff

Plaintiff testified that at the beginning of February 2009, she sought to refinance her home with the Peoples Bank. She discovered in March 2009 that the refinance could not proceed because there was a collections account on her credit report which reduced her credit score by approximately 60 points. Therefore, she did not qualify for the loan. The only negative factor on plaintiff's credit report was reported by NCS in the original amount of $412. This issue was first reported in May 2008, with a balance of $455 as of February 2009.

Plaintiff claimed that before receiving the report from the Peoples Bank, she had never been given notice of the debt. Plaintiff faxed a letter to NCS disputing the debt. After receiving a response from NCS, plaintiff telephoned Pitkin on March 31, 2009. According to plaintiff, Pitkin told her that she and Pitkin had previously spoken on the phone and in person about a year earlier, Pitkin said plaintiff had agreed to pay the debt, and a payment plan was established. Plaintiff disputed having previously spoken to Pitkin, claiming that she had never heard of NCS before. Plaintiff told Pitkin that she did not owe any money because the alleged agreement she had with Mortgage Center did not give rise to a binding obligation. Plaintiff claimed that she notified the owner of Mortgage Center in writing that she would not pay the claimed amount, and that he would "have to sue her for it." According to plaintiff, Pitkin responded that plaintiff's dispute was " 'invalid,' " and refused to remove the account from plaintiff's credit report.

NCS continued to report the debt on subsequent credit reports and did not report that it was disputed. The amount of the debt increased as additional fees were assessed. Plaintiff testified that NCS wrongfully charged her interest "other than as provided by law." Plaintiff continued to dispute the debt.

Defendant Marsha Pitkin

Plaintiff called Pitkin to testify in her case-in-chief as a hostile witness. Pitkin testified that NCS was a debt collection business in Yreka, owned and operated by Carter-Jones. Pitkin was the manager at NCS. She was hired, trained, and named manager by defendant Pederson, Pitkin's boss. She also was the debt collector assigned to plaintiff's account.

Pitkin testified that all collection accounts handled by NCS are administered by its computer system. All actions on an account are logged into the system. Pitkin had no control over the programming of the computer system. Those matters were handled by Carter-Jones.

Initial notice letters to consumers are automatically generated by NCS's computer system. Each account NCS handled that was subject to reporting to the three major credit reporting agencies would be automatically reported by the computer system each month. Each report included the automatic assessment of interest. When NCS receives a new account subject to reporting, it will begin reporting the account to the credit reporting agencies after 30 days.

Pitkin testified that NCS received assignment of plaintiff's account from Mortgage Center on May 2, 2008. The original charges were for an appraisal and credit report that arose out of a contract plaintiff had with Mortgage Center.³ The original amount was $412.63. However, this amount increased over time as the result of the accrual of interest calculated at the lawful rate in California beginning on January 18, 2008, the date the original invoice " 'became due.' " Pitkin testified that she did not personally draft or send any notification letters to plaintiff in 2008, and she never saw the initial notification letter sent to plaintiff. NCS did not have a copy of any computer-generated letter sent to plaintiff.

3 Plaintiff's position is that what Pitkin referred to as a contract was not a binding contract, but merely a "notice." This dispute was not decided in the trial court and is not at issue here.

Pitkin called plaintiff on May 13, 2008. In the conversation, Pitkin determined that plaintiff had not received any communications from NCS about the account because the notice was sent to an incorrect address. Pitkin testified that plaintiff agreed to pay the debt. That day, Pitkin sent plaintiff a letter and payment form. However, the letter was returned unopened and placed in plaintiff's file. A second letter sent to plaintiff also was returned with a notation meaning " 'no such number.' " That correspondence was also placed in plaintiff's file. However, by the time of trial, NCS no longer had the letters. Pitkin did not know what happened to them.⁴

4 Plaintiff raises the issue of spoliation of evidence. We find it unnecessary to consider the issue in order to resolve the issues presented on appeal.

Pitkin testified that the e-Oscar system was an automated reporting system "that notifies NCS when a dispute concerning an NCS account has been filed with one or more of the three major credit reporting agencies." The NCS computer system "handles" e-Oscar notifications automatically. An entry on plaintiff's account indicated that on March 13, 2009, e-Oscar notified NCS of a dispute pertaining to plaintiff's account. Upon that notification, NCS's system automatically verified the disputed account " 'as reported' " to the three major credit reporting agencies through the e-Oscar system.

NCS received plaintiff's written dispute by fax on March 16, 2009. According to the NCS procedures manual, when NCS receives a debt dispute from a consumer, the dispute is supposed to be entered into the NCS computer as " '3dis.' " That entry "flags" the computer system to automatically report the account as disputed to the credit reporting agencies. However, neither Pitkin nor anyone else made a " '3dis' " entry into the computer system on plaintiff's account. Pitkin did not know why there was no such entry made to plaintiff's account.

Pitkin sent a letter to plaintiff on March 27, 2009. However, that letter did not contain the total amount NCS was reporting to the three major credit reporting agencies as owed by plaintiff.

Nonparty Peter T. Harrell ⁵

5 Harrell appears to act on plaintiff's behalf in various matters, but is not her attorney.

Peter T. Harrell assisted plaintiff in filing disputes with the three major credit reporting agencies. Harrell noted that on the credit reports, NCS had designated the account a consumer " 'installment' " account, which was one of the bases for plaintiff's dispute. Other grounds Harrell asserted in disputing the report were that plaintiff had no obligation to pay the debt, the account was wrongfully reported as delinquent and defaulted, and the amounts reported included unauthorized interest. Harrell also testified that NCS failed to report the debt as disputed.

Defendant Pederson Does Not Testify

On more than one occasion, plaintiff sought to have Pederson testify concerning the operations of Carter-Jones and NCS "as well as the duties of . . . Pederson and . . . Pitkin in relation to NCS." Defendants objected, "stating that because [plaintiff] had been previously denied opportunity by the Court to conduct discovery into Pederson's personal finances on the basis of 'failing to pierce the corporate veil', Pederson could not be held personally liable in the current case, she was also not allowed to bring in evidence concerning him at trial for any purpose." Plaintiff replied that she "had a right to bring evidence against Pederson as a Defendant." Plaintiff also asserted that because Pederson was Pitkin's boss, that he had written the NCS procedures manual, and that he was responsible for the operations of Carter-Jones and NCS, he could be liable under the FDCPA and the RFDCPA. Plaintiff also emphasized that Pitkin testified that she did not know how various aspects of the NCS system worked, and she deferred decisions and operations to " 'corporate,' " and thus it was reasonable to assume that Pederson was responsible for those operations.

The trial court ruled that Pederson could not be held personally liable for any claims in the complaint. Defendants' attorney moved for nonsuit as to Pederson. The trial court granted that motion as to all causes of action. The court denied plaintiff's request to present additional evidence as to Pederson.

Motion for Nonsuit

At the close of plaintiff's case-in-chief, defendants made an oral motion for nonsuit. The trial court granted plaintiff an "opportunity to make objections, to preliminarily brief the issue of non-suit, and to request opportunity to reopen her case to correct any deficiencies and/or for rebuttal." The court took the matter under submission.

Decision on Motion for Judgment

The trial court filed its decision on July 14, 2017. The trial court initially stated that nonsuit was not available in a nonjury trial. However, the court deemed defendants' motion for nonsuit to be a motion for judgment pursuant to section 631.8.

The court recited: "[T]he court is aware that when a motion for judgment is made at the conclusion of plaintiff's case in chief in a nonjury trial, plaintiff must be given the opportunity to present additional evidence to rebut and rehabilitate her witnesses if the judge exercises her discretionary power to consider defensive matter in the body of evidence that the judge weighs in ruling on the motion. [Plaintiff] was not given the opportunity to present additional evidence because this court did not consider defensive evidence in ruling on this motion. [Citation.] The court finds all evidence presented by both parties as credible but . . . finds additional evidence as persuasive support for each of the court's findings of fact." (Italics added.)

The court found that NCS relied on its computer system in calendaring events related to each account, and in automatically generating written initial notices and notices to the three credit reporting agencies. The court further found that NCS's main computer automatically generates a written notice of the account and sends notice of the account no earlier than 30 days after sending the initial written notice, in compliance with section 1692g(a) of title 15 of the United States Code and Civil Code section 1788.17.

According to the court's findings, "when a debt is disputed it is reflected in the computer system as an E-Oscar entry and the disputed status of the debt is automatically transmitted to the" three credit reporting agencies.

The court found that NCS opened the account on May 5, 2008. Initial written notice was sent to plaintiff, but was returned as undelivered. The court found that Pitkin contacted plaintiff by phone on May 13, 2008, consistent with NCS policies and procedures of contacting a debtor five or six days after the initial written notice is sent. Pitkin informed plaintiff of the nature and purpose of the contact. During the telephone conversation, plaintiff informed Pitkin she had not received the initial notice. Plaintiff requested a copy of materials documenting the debt, and she promised to pay the debt in full, "thereby affirm[ing] the validity of the account." However, plaintiff did not pay the debt, and the account was automatically reported to the three credit reporting agencies. In making these findings, the trial court noted that it considered plaintiff's testimony denying the occurrence of the May 13, 2008 phone call. However, the court stated that "the weight of the affirmative evidence . . . leads the court to believe that [plaintiff] was mistaken." (Italics omitted.)

The court found that on March 13, 2009, plaintiff contacted NCS and spoke with Pitkin. Plaintiff informed Pitkin that the debt was disputed. That dispute was reported on NCS's computer system as a " 'dispute through E-Oscar' " entry, which was automatically transmitted to the three credit reporting agencies.

Pitkin then contacted Mortgage Center to obtain additional information to validate the debt. Pitkin received additional information and determined the debt was valid. According to the court, in doing so, NCS complied with the requirements of section 1692g(b) of title 15 of the United States Code and Civil Code section 1788.17. Pitkin entered a note indicating that the debt was valid.

Plaintiff sent letters to NCS and Mortgage Center disputing the debt and threatening legal action. Pitkin responded with documentation of the debt. The court again concluded that these procedures complied with section 1692g(b) of title 15 of the United States Code and Civil Code section 1788.17.

The court found that there was no evidence NCS opened the account before May 5, 2008. Thus, NCS could not have given plaintiff notice prior to May 2008.

The court also found the credit reporting agencies were notified automatically of plaintiff's dispute of the debt, and of the fact that the debt had been validated. The court stated that plaintiff presented no authority for the proposition that a debt collection agency is required to inform a debtor of the nature and purpose of its business when the contact is initiated by the debtor.

The court also determined that there was no authority to support plaintiff's allegation that interest assessed on the debt was not authorized by law.

The court determined that plaintiff failed to prove that her credit score was impacted by NCS's report to the credit reporting agencies such that she could not refinance her home.

The court found no evidence that demonstrated that Pederson was personally liable for any of plaintiff's alleged damages.

The court then turned to the complaint's causes of action.

The court found that defendants did not violate the FDCPA or the RFDCPA, there was no evidence of false or deceptive misrepresentations by defendants, and there was no evidence that defendants' actions were willful, wanton, reckless, knowing, intentional, persistent, frequent, oppressive, and/or devious within the meaning of the FDCPA and the RFDCPA. The court likewise concluded that defendants had not engaged in any acts of unfair competition within the meaning of Business and Professions Code section 17200 et seq. Therefore, the court concluded that plaintiff's first through 14th causes of action must fail.

The court found that defendants operated within the law in investigating and validating plaintiff's debt to Mortgage Center. Therefore, the court concluded defendants did not defame plaintiff when they reported the debt to the credit reporting agencies. Thus, the court concluded that the 15th cause of action must fail.

Because it concluded that there was no evidence demonstrating that defendants acted with the requisite intent or with recklessness, the trial court concluded that the 16th cause of action must fail.⁶

6 It is not clear if the court was referring to the 17th cause of action (willful and reckless misrepresentation to a third party), inasmuch as the 16th purported cause of action for punitive damages is not an independent cause of action under California law. (McLaughlin v. National Union Fire Ins. Co. (1994) 23 Cal.App.4th 1132, 1163.) In any event, the trial court clearly granted defendants' motion for judgment as to all causes of action.

The court concluded defendants exercised reasonable care in operating their business and in their personal conduct. Therefore, the court concluded that the 18th cause of action must fail.

The court found that defendants "acted within the law," and therefore concluded that the 19th cause of action must fail.

The court further concluded that if defendants committed omissions or conduct in violation of the FDCPA or the RFDCPA, such omissions or conduct were unintentional and resulted from a bona fide error, "notwithstanding the maintenance of procedures reasonably adapted to avoid any such error." The court found that NCS had implemented policies and procedures to ensure that the intent and requirements of the FDCPA and the RFDCPA were satisfied, as demonstrated by exhibit 21, NCS's policies and procedures manual, and by Pitkin's testimony. Therefore, the court concluded that defendants could not be held liable for such errors or omissions pursuant to section 1692k(c) of title 15 of the United States Code or Civil Code section 1788.30, subdivision (e).⁷

7 The trial court erroneously referenced Civil Code section 1788.3 rather than 1788.30.

Lastly, the court found that plaintiff's allegations "were so lacking in merit that the action is frivolous as a matter of law and therefore lacking in good faith. She has alleged hyper-technical violations of the law and misinterpreted the statutes to an extent that she was unable to support her allegations of wrong-doing." The court noted that reasonable attorney fees may be awarded pursuant to Civil Code section 1788.30, subdivision (c),⁸ " 'to a prevailing creditor upon a finding by the court that the debtor's prosecution or defense of the action was not in good faith.' " The court concluded that "this action falls within the scope of this statute and was not prosecuted in good faith."

8 The trial court erroneously referenced Civil Code section "17889.30" rather than 1788.30.

The trial court filed an amended decision on September 18, 2017, which changed the caption.

Award of Attorney Fees and Judgment

On September 14, 2017, the trial court awarded attorney fees and costs to defendants in the amount of $91,780. According to defendants' filings, this consisted of $90,560 in attorney fees and $1,220 in costs. On the same day, the court entered judgment.

Notices of Appeal

Plaintiff filed her first notice of appeal on September 11, 2017, purporting to appeal from the judgment which had yet to be filed, but referencing the July 14, 2017 date of the decision on defendants' motion for judgment. Plaintiff subsequently filed "supplemental" notices of appeal on October 3, 2017, appealing from the judgment of September 14, 2017; on September 24, 2018, appealing from "all proceedings culminating in 8/7/18 order"; and on March 13, 2019, appealing from the "Order affecting rights of Plaintiff, as void for lack of jurisdiction, and contrary to statute" of January 29, 2019.⁹

9 Defendants assert that all of plaintiff's notices of appeal are unauthorized and urge us to dismiss plaintiff's appeals. Defendants also request that we dismiss plaintiff's appeal "in the interest of justice." Defendants did not make any formal motion or application to dismiss plaintiff's appeals. In any event, the judgment is appealable pursuant to section 904.1, subdivision (a)(1), and the subsequent orders are appealable pursuant to section 904.1, subdivision (a)(2), as orders made after an appealable judgment. We will dismiss plaintiff's first appeal, from the July 14, 2017 decision (see generally § 904.1), though this has no effect on the scope of our review. We otherwise deny defendants' requests.

DISCUSSION¹⁰

10 Plaintiff in her reply brief characterizes portions of the respondents' brief as "needlessly inflammatory and scandalous" and requests that we strike the offending portions. "There can be no doubt of the power of an appellate court to strike from its files a brief or other document containing disrespectful, scandalous, or abusive language directed against the courts, officials, or litigants, or to take such other action as the circumstances may require. [Citation.]" (Carpenter v. Pacific Mut. Life Ins. Co. (1937) 10 Cal.2d 307, 314.) However, we do not deem this warranted and therefore decline plaintiff's request.
As an unrelated aside, we note defendants cite an unpublished Court of Appeal decision in their briefing. Such citations generally are prohibited, and no exception applies here. (Cal. Rules of Court, rule 8.1115(a).)

I.

Procedures Pertaining to Settled Statement

A. Additional Background

On March 1, 2018, the trial court granted plaintiff's motion for an order on her proposed settled statement, certifying the proposed settled statement pursuant to California Rules of Court, rule 8.137(h)(1).¹¹

11 Undesignated rules references are to the California Rules of Court.

Subsequently, following objections by defendants, the trial court ordered the drafting of a new proposed settled statement taking into consideration defendants' proposed amendments.

Plaintiff filed a modified settled statement on November 8, 2018. The trial court set a hearing on the proposed settled statement for December 13, 2018. Plaintiff filed a notice of nonappearance for the hearing. Among other things, plaintiff stated that she had not received objections from defendants, asserted that the time to file such had passed, and anticipated no further objections. On December 13, 2018, the trial court ordered defendants' response served on plaintiff that day. The court continued the hearing to January 24, 2019. Plaintiff filed a notice of nonappearance for the continued hearing. She stated she had not received any request by defendants for either the December 13, 2018 or the January 24, 2019 hearing. Plaintiff noted that she had filed objections to defendants' response and proposed amendments, discussed post.

On January 29, 2019, the trial court ordered certain amendments to plaintiff's settled statement. The court then stated, "Once amended consistent with this order, the statement shall be settled." Plaintiff filed the second modified settled statement on March 13, 2019.

B. Plaintiff's Contentions

Plaintiff discusses at length the procedural history that led to the second modified settled statement. This included both the matters summarized above, as well as communications between the trial court and this court, the transfer of the record between the courts, and motions plaintiff made before this court. She asserts that these processes exceeded the trial court's jurisdiction, deprived her of due process, and were undertaken without service upon her, although she does not separately assert a right to relief for failure of proper service. Plaintiff asserts that the trial court never issued an order striking or decertifying the original settled statement. The relief plaintiff seeks is that we consider both the originally certified settled statement and the second modified settled statement.

C. Analysis

The crux of plaintiff's contention is that the trial court improperly ordered the amendment of the certified settled statement after accepting untimely defense objections. She asserts that it was an abuse of discretion for the court to order such amendment, and that she was denied due process because the trial court proceeded in a manner not in compliance with rule 8.137(h)(3). She claims to have been prejudiced by the resulting delay and because the trial court's procedure resulted in changes to the previously certified settled statement. We conclude that plaintiff has largely forfeited her contentions and otherwise failed to demonstrate entitlement to relief.

In the trial court, on January 7, 2019, plaintiff filed objections to defendants' December 13, 2018 response to her request for order on proposed modified settled statement and proposed amendments. She asserted that defendants' filing was untimely and that defendants' proposed amendments exceeded the scope of the trial court's August 7, 2018 order. However, plaintiff filed notices of nonappearance for the two dates on which the trial court was to consider the matter, and obviously did not participate in the proceedings or make any arguments at those proceedings. Thus, all plaintiff's arguments not addressed to the timeliness of defendants' response, or whether the amendments sought by defendants exceeded the scope of the trial court's order because those amendments addressed matters that had "already been through the review process," have been forfeited. (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2006) 136 Cal.App.4th 212, 226 [party failed to raise argument in trial court and thus forfeits that argument on appeal]; accord, Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1249 [" 'It is axiomatic that arguments not asserted below are waived and will not be considered for the first time on appeal' "].)

Moreover, other than authority generally discussing the adoption of court rules, the abuse of discretion that occurs when a court exceeds its jurisdiction, and rules applicable to filing and augmentation of the record, plaintiff cites no authority supporting her arguments or providing a basis for relief other than rule 8.137. (See generally rule 8.204(a)(1)(B) [each brief must state "each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority"], italics added.) "It is the responsibility of the appellant . . . to support claims of error with meaningful argument and citation to authority. [Citations.] When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration. [Citations.] In addition, citing cases without any discussion of their application to the present case results in forfeiture. [Citations.] We are not required to examine undeveloped claims or to supply arguments for the litigants. [Citations.]" (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52; accord, Save Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665, 704, fn. 14 ["On appeal, ' " 'the party asserting trial court error may not . . . rest on the bare assertion of error but must present argument and legal authority on each point raised. [Citation.]' [Citations.] When an appellant raises an issue 'but fails to support it with reasoned argument and citations to authority, we treat the point as waived.' " ' "].)

Finally, nothing in rule 8.137 prohibits the court from certifying a modified settled statement. Although rule 8.137(e) designates the time within which a respondent "may serve and file" a response to a proposed settled statement, consistent with its inherent power to exercise reasonable control of proceedings (see Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1351), the trial court elected to consider defendants' response.

We conclude that the trial court's only error was one of omission: failing to decertify the prior settled statement before, in effect, certifying a modified settled statement. However, the certification of the second settled statement superseded the originally certified settled statement. Moreover, while plaintiff contends that the second modified settled statement was not certified, we conclude that the trial court's order stating, "Once amended consistent with this order, the statement shall be settled," effectively certified the second modified settled statement. Plaintiff acknowledges that the court "impliedly ordered the second settled statement certified."

"The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown." (§ 475; cf. Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 ["it is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment"].)

We conclude that plaintiff has failed to demonstrate her entitlement to the relief she seeks based on any error committed by the trial court in, in effect, certifying the second modified settled statement. Thus, as stated ante, we have derived the facts concerning the trial and oral proceedings from the second modified settled statement.

II.

The Trial Court's Section 631 .8 Procedure

A. Section 631.8 and Related Case Law

Section 631.8, subdivision (a) provides, in pertinent part: "After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in Sections 632 and 634, or may decline to render any judgment until the close of all the evidence. The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party." (Italics added.) The italicized language was added in a 1978 amendment. (Stats. 1978, ch. 372, § 1; see People v. Mobil Oil Corp. (1983) 143 Cal.App.3d 261, 270 (Mobil Oil Corp.).)

" '[T]he enactment of . . . section 631.8 effectively abolished motions for nonsuit, where . . . trial is before the court without a jury.' " (Lingenfelter v. County of Fresno (2007) 154 Cal.App.4th 198, 206, quoting Estate of Pack (1965) 233 Cal.App.2d 74, 77.) A court may deem a motion for nonsuit to be one for judgment pursuant to section 631.8. (Commonwealth Memorial, Inc. v. Telophase Society of America (1976) 63 Cal.App.3d 867, 869, fn. 1 [because this was a trial by court, "we treat the order granting defendant's motion for nonsuit as a judgment for defendant" pursuant to § 631.8].)

"The purpose of . . . section 631.8 is 'to enable the court, when it finds at the completion of plaintiff's case that the evidence does not justify requiring the defense to produce evidence, to weigh evidence and make findings of fact.' [Citation.] Under the statute, a court acting as trier of fact may enter judgment in favor of the defendant if the court concludes that the plaintiff failed to sustain its burden of proof. [Citation.] In making the ruling, the trial court assesses witness credibility and resolves conflicts in the evidence. [Citations.]" (People ex rel. Dept. of Motor Vehicles v. Cars 4 Causes (2006) 139 Cal.App.4th 1006, 1012.)

The 1978 amendment to section 631.8 "requires that when a motion for judgment is made at the close of plaintiff's case, the plaintiff shall have had an opportunity to present additional evidence to rebut and to rehabilitate if, but only if, the court exercises its discretionary power to consider defensive matter in the body of evidence which the court weighs in ruling on the motion." (Mobil Oil Corp., supra, 143 Cal.App.3d at p. 271, italics added.) "The opportunity to present additional evidence is not founded on whether defense evidence has been heard, but on whether the court considers the defensive matter in the body of evidence which it weighs in ruling on the motion." (Id. at p. 272.)

In determining whether defense evidence has been considered, it is important to note that "[t]he plaintiff may call the defendant as a witness for 'cross-examination' under Evidence Code section 776, and defense counsel may then examine his own client 'as if under redirect examination' and at that time may offer defense exhibits as adjuncts to defendant's testimony. Although it is received during plaintiff's case, evidence elicited under Evidence Code section 776, is not treated as plaintiff's evidence. . . . Also, defense exhibits are sometimes introduced into evidence during the presentation of plaintiff's case in chief." (Mobil Oil Corp., supra, 143 Cal.App.3d at p. 269.) " 'Consequently, when the plaintiff rests, the body of evidence before the court often comprises something other than the plaintiff's case pure and unsullied. It may include a heavy mixture of defensive matter.' " (Ibid.)

A party opposing a motion for judgment pursuant to section 631.8 who fails to assert his or her right to present additional evidence forfeits the right to do so. (Mobil Oil Corp., supra, 143 Cal.App.3d at pp. 272-274.) As stated in the context of a motion for nonsuit, "[s]uch an error is waived . . . if the plaintiff fails to specify what additional evidence would be presented or how the additional evidence would cure the defects in the case." (Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 382 (Consolidated World Investments).) Moreover, "any error in refusing to allow appellant to reopen the case and present further evidence must be prejudicial to warrant reversal [citations], and appellant has the burden of establishing prejudicial error." (Charles C. Chapman Bldg. Co. v. California Mart (1969) 2 Cal.App.3d 846, 858-859, citing Cal. Const., art. VI, § 13 & Code Civ. Proc., § 475; accord, Abreu v. Svenhard's Swedish Bakery (1989) 208 Cal.App.3d 1446, 1457 [discussing motion for nonsuit, stating any error in refusing to allow the plaintiff to reopen the case and present further evidence must be prejudicial to warrant reversal and, on appeal, the plaintiff has the burden of establishing prejudicial error].)

B. Plaintiff's Contentions

Plaintiff asserts that while the trial court stated that it was not considering defense evidence in rendering its decision, that decision clearly reflects that the court did consider defense evidence. On almost every page of its decision, the court referenced Pitkin's testimony and lettered defense exhibits. Because the trial court considered defense evidence, plaintiff asserts it was required under section 631.8 to allow plaintiff the opportunity to present additional evidence and rehabilitate her witnesses.

C. Analysis

As stated ante, in its decision, the court stated, "[T]he court is aware that when a motion for judgment is made at the conclusion of plaintiff's case in chief in a nonjury trial, plaintiff must be given the opportunity to present additional evidence to rebut and rehabilitate her witnesses if the judge exercises her discretionary power to consider defensive matter in the body of evidence that the judge weighs in ruling on the motion. [Plaintiff] was not given the opportunity to present additional evidence because this court did not consider defensive evidence in ruling on this motion. [Citation.] The court finds all evidence presented by both parties as credible but, as noted further below, finds additional evidence as persuasive support for each of the court's findings of fact." (Italics added.)

The trial court's statement that it "did not consider defensive evidence in ruling on this motion" is belied by the court's decision. Plaintiff, in effect, "call[ed] [ ] defendant [Pitkin] as a witness for 'cross-examination' under Evidence Code section 776," and defense counsel examined Pitkin " 'as if under redirect examination.' " (Mobil Oil Corp., supra, 143 Cal.App.3d at p. 269.) The trial court in its decision relied extensively on Pitkin's testimony. Although the foregoing evidence was received during plaintiff's case, "evidence elicited under Evidence Code section 776, is not treated as plaintiff's evidence." (Mobil Oil Corp., at p. 269.) Additionally, the trial court's decision indicates that it relied on the lettered defense exhibits that were introduced after the close of plaintiff's case-in-chief, during argument on the motion for judgment. (See ibid.) Thus, contrary to the trial court's statement, it did consider defense evidence in deciding defendants' motion for judgment pursuant to section 631.8.

As indicated ante, plaintiff has opted for a settled statement on appeal rather than a reporter's transcript of the oral proceedings before the trial court. Thus, the record before us is not a verbatim account of what happened in the trial court. The record suggests the possibility that, faced with defendants' motion for nonsuit, plaintiff sought to present additional evidence to rebut and to rehabilitate. Plaintiff noted in her memorandum filed in anticipation of defendants' motion for nonsuit that the trial court must allow the plaintiff the opportunity to reopen the case and introduce further evidence. However, in that memorandum she did not actually request that the trial court allow her to reopen her case, to present evidence to rebut, or to rehabilitate witnesses.¹² The minute order for July 7, 2017, indicates that defense counsel formally made an oral motion for nonsuit. However, there is no entry indicating that plaintiff requested the opportunity to present additional evidence to rebut or to rehabilitate witnesses. The court proceeded to consider the parties' arguments on an issue-by-issue basis and to make tentative rulings as to each. This process continued on July 12, 2017, according to the minute order for that date. Again, there is no indication of any request by plaintiff to present additional evidence to rebut or to rehabilitate. According to the settled statement, the trial court "denied [plaintiff] the opportunity to reopen her case, present additional evidence, and/or cure any defects in response to the motion for non-suit." The settled statement also says that the court "did not allow [plaintiff] to reopen her case, and/or to introduce any further evidence." However, the settled statement is ambiguous insofar as it does not specifically state that plaintiff made a request in this regard, let alone "specify what additional evidence would be presented or how the additional evidence would cure the defects in the case." (Consolidated World Investments, supra, 9 Cal.App.4th at p. 382 [motion for nonsuit].)

12 This makes sense given the fact that at the time this document was filed, plaintiff had not concluded her case-in-chief and defendants had not formally made their motion.

We note that the settled statement does indicate that plaintiff affirmatively sought to present the testimony of Pederson "as one of her last two witnesses." The settled statement describes plaintiff's offer of proof as to Pederson's testimony. The trial court's June 2, 2017 minute order notes that the court, counsel, and the parties discussed an "offer of proof as to [ ] plaintiff's last two witnesses." However, on this record, plaintiff's efforts to have Pederson testify, and her offer of proof, were not made responsive to defendants' motion for nonsuit, but rather occurred several days earlier during the course of plaintiff's case-in-chief. Plaintiff's efforts to have Pederson testify, and the trial court's refusal to allow his testimony, are, on this record, evidentiary rulings on plaintiff's case-in-chief, and not indicative of the trial court's refusal to allow plaintiff to present additional evidence or rehabilitate witnesses after defendants made their motion. Thus, these references to Pederson and plaintiff's offer of proof during her case-in-chief did not satisfy the requirement that plaintiff specify to the trial court what additional evidence she could present following defendants' motion and how that evidence could cure the defects in her case.¹³

13 We also note that plaintiff asserts throughout her appellate briefing that the trial court's refusal to allow her to call Pederson to testify in her case-in-chief was a prejudicial abuse of discretion, and asserts in her reply brief that this was a "main assignment[ ] of error." However, she has not raised this contention "under a separate heading or subheading summarizing the point." (Rule 8.204(a)(1)(B).) Thus, she forfeited this argument by failure to comply with rule 8.204(a)(1)(B). (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656 [appellant must present each point separately in the opening brief under an appropriate heading, showing the nature of the question to be presented and the point to be made; otherwise, the point will be forfeited]; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4 [appellant must present each point separately in the opening brief under an appropriate heading or it is forfeited].)

On this record, plaintiff has not established that she affirmatively asserted her right to present additional evidence (Mobil Oil Corp., supra, 143 Cal.App.3d at pp. 272-274), much less that she "specif[ied] what additional evidence would be presented or how the additional evidence would cure the defects in the case." (Consolidated World Investments, supra, 9 Cal.App.4th at p. 382 [motion for nonsuit].) As such, she forfeited her contention that the trial court abused its discretion in failing to afford her the opportunity to present additional evidence in rebuttal and to rehabilitate her witnesses. (Ibid.; Mobil Oil Corp., at pp. 272-274.)

On appeal, plaintiff claims that her rebuttal evidence, had the court allowed it, "certainly would have included Pederson's testimony, his stipulations . . . , and admissions." She also asserts that she could have cleared up evidence concerning her credit reports and scores through "rehabilitation of her witnesses' testimony on this subject, and additional documentation relating to credit reports," although she offers nothing more specific beyond again referring to how Pederson might have testified. She offers nothing more to demonstrate what she would have presented had the court allowed her to introduce additional evidence. Even if plaintiff had not forfeited her contention that the trial court abused its discretion in refusing to allow her to present additional evidence and rehabilitate witnesses, we conclude that plaintiff's bare assertions as to the evidence she would have proffered and how that evidence would have altered the landscape are insufficient to satisfy her burden on appeal of establishing that she was prejudiced by the trial court's refusal to allow her to present additional evidence. (Abreu v. Svenhard's Swedish Bakery, supra, 208 Cal.App.3d at p. 1457 [motion for nonsuit].)

Having concluded that plaintiff forfeited her contention, we proceed to consider whether the trial court properly granted defendants' motion on the merits. In light of plaintiff's forfeiture, while the trial court was incorrect in stating it did not consider defense evidence, this erroneous statement cannot be deemed prejudicial to plaintiff (see generally Cal. Const., art. VI, § 13 & Code Civ. Proc., § 475), and we do not, as plaintiff suggests we should, ignore defense evidence on this appeal.

III.

The Trial Court Properly Granted Defendants' Motion for Judgment

A. Plaintiff's Contentions

Across plaintiff's first, fourth, and fifth issues in her briefing, she makes arguments addressed to the merits of the trial court's ultimate determination to grant defendants' motion for judgment. We address those contentions in this part of the Discussion. Plaintiff asserts that the evidence established violations of the FDCPA and the RFDCPA. She emphasizes that her first amended complaint alleged that defendants failed to give her notice before attempting to collect the debt, misreported the nature and character of the debt, failed to report the debt as disputed, and misreported the amount of the debt. She asserts that the evidence was sufficient to establish these allegations or, in the alternative, the trial court did not allow her to present evidence which would support the allegations. Plaintiff also specifically contends that the trial court's findings that the debt's status as disputed is automatically reported to the credit reporting agencies as a result of an e-Oscar entry was not supported by substantial evidence. Plaintiff asserts that the trial court erred by finding that she affirmed the debt and agreed to pay it in full. She also asserts that the trial court erred in concluding defendants prevailed on their bona fide error affirmative defense.

B. Standard of Review

" ' "The standard of review after a trial court issues judgment pursuant to . . . section 631.8 is the same as if the court had rendered judgment after a completed trial— that is, in reviewing the questions of fact decided by the trial court, the substantial evidence rule applies." ' [Citation.] ' "But, we are not bound by a trial court's interpretation of the law . . . ." ' [Citation.] ' "We review legal issues . . . under a de novo or independent standard." ' [Citation.]" (Orange County Water Dist. v. MAG Aerospace Industries, Inc. (2017) 12 Cal.App.5th 229, 239-240.)

" 'Substantial evidence' is 'evidence . . . "of ponderable legal significance, . . . reasonable in nature, credible, and of solid value." ' [Citation.] 'When a . . . factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination . . . .' [Citation.] 'Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court's findings and decision, resolving every conflict in favor of the judgment.' [Citation.] 'We may not reweigh the evidence . . . .' [Citation.]" (People v. JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1243.)

C. The FDCPA and the RFDCPA Generally

"The purpose of the FDCPA is 'to eliminate abusive debt collection practices by debt collectors, to insure that those 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.' [Citation.] 'A basic tenet of the [FDCPA] is that all consumers, even those who have mismanaged their financial affairs resulting in default on their debt, deserve "the right to be treated in a reasonable and civil manner." ' [Citation.] Since the FDCPA is a remedial statute, 'it should be construed liberally in favor of the consumer.' [Citation.]" (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 996.) "Under the FDCPA, 'A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.' [Citation.]" (Ibid., quoting 15 U.S.C. § 1692e.)

"There are four elements to an FDCPA cause of action: (1) the plaintiff is a 'consumer' under 15 U.S.C. § 1692a(3); (2) the debt arises out of a transaction entered into for personal purposes; (3) the defendant is a 'debt collector' under 15 U.S.C. § 1692a(6); and (4) the defendant violated one of the provisions contained in 15 U.S.C. §§ 1692a-1692o. [Citation.]" (Wheeler v. Premiere Credit of N. Am., LLC (S.D.Cal. 2015) 80 F.Supp.3d 1108, 1112, citing Turner v. Cook (9th Cir. 2004) 362 F.3d 1219, 1226-1227.)

The RFDCPA "was enacted 'to prohibit debt collectors from engaging in unfair or deceptive acts or practices in the collection of consumer debts.' [Citation.] The [RFDCPA] is ' "a remedial statute [that] should be interpreted broadly in order to effectuate its purpose." ' [Citation.] It was enacted in 1977, the same year that its federal counterpart, the FDCPA, was enacted. [Citation.] In addition to its other requirements and prohibitions, the [RFDCPA] generally requires debt collectors to comply with the provisions of the FDCPA." (Davidson v. Seterus, Inc. (2018) 21 Cal.App.5th 283, 295 (Davidson).) "The provisions of the FDCPA are incorporated in the RFDCPA under . . . Civil Code § 1788.17; consequently, conduct by a debt collector that violates the FDCPA also violates the RFDCPA." (Vanover v. Carruthers (C.D.Cal. Jan. 24, 2018, SA CV 17-0196-DOC (DFMx)) 2018 U.S. Dist. LEXIS 11877, at *12; 2018 WL 1407047, at *5.)

D. Analysis ¹⁴

14 Plaintiff focuses exclusively on her FDCPA and RFDCPA claims. While plaintiff's first through 14th causes of action also assert claims pursuant to the unfair competition law (Bus. & Prof. Code, § 17200 et seq.), she offers no analysis in the "Argument" section of her brief concerning the unfair competition law. Indeed, she acknowledges that "the majority of Plaintiff's claims have to do with the failures by [ ] Defendants to follow the FDCPA and RFDCPA relating to their communications with Plaintiff, and the ongoing . . . misrepresentations concerning the status, nature, and amount of the alleged debt to the three major credit reporting agencies; and failures to report the alleged debt as 'disputed'. Plaintiff[']s unfair business practices causes of action, and other alleged torts, flow from these violations." (Italics added.) In the Argument section of her brief, plaintiff does not raise arguments addressed to the unfair competition law, misrepresentation, negligence, restitution, or injunctive relief. Accordingly, we will not address such claims further, and will focus exclusively on plaintiff's claims pursuant to the FDCPA and the RFDCPA.
Additionally, while plaintiff raises punitive damages in her argument, to establish entitlement to an award of punitive damages, a plaintiff "must still prove the underlying tortious act causing actual, presumed or, where the difficulty lies in fixing the amount of damages with certainty, nominal damages." (McLaughlin v. National Union Fire Ins. Co., supra, 23 Cal.App.4th at p. 1163.) Thus, if a plaintiff does not prevail on the underlying tort cause of action, the plaintiff is not entitled to an award of punitive damages. In other words, the punitive damages claim rises and falls with the substantive tort claims. (569 E. County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 429-430, fn. 3 ["a claim for punitive damages is merely an additional remedy that is dependent on a viable cause of action for an underlying tort"].)

As plaintiff asserts, the parties stipulated that defendants, with the exception of Mortgage Center, were "debt collectors" within the meaning of the FDCPA and the RFDCPA. Moreover, the trial court found that NCS was a debt collection agency. There is no dispute that plaintiff is a consumer, or that the subject debt was a consumer debt. Thus, as plaintiff asserts, the central issue was whether defendants violated the FDCPA and the RFDCPA in attempting to collect the debt. We proceed to consider whether substantial evidence supported the trial court's determinations as to each of plaintiff's FDCPA and RFDCPA causes of action.

1. Violations of Section 1692e(2)(A) of Title 15 of the United States Code and Civil Code Section 1788 .17 ¹⁵ (First Cause of Action)

15 Civil Code section 1788.17 provides in part: "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." Because Civil Code section 1788.17 "generally requires debt collectors to comply with the provisions of the FDCPA" (Davidson, supra, 21 Cal.App.5th at p. 295), for the most part, we do not discuss Civil Code section 1788.17 in addition to our analysis pursuant to the FDCPA.

In her first cause of action, plaintiff alleged defendants violated section 1692e(2)(A) of title 15 of the United States Code and Civil Code section 1788.17 on three occasions on or about May 5, 2008, when they misrepresented to the three credit reporting agencies that plaintiff had a consumer credit account with Mortgage Center that was defaulted and/or delinquent.

Section 1692e(2)(A) of title 15 of the United States Code establishes that a "debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt" including through "[t]he false representation of— [¶] (A) the character, amount, or legal status of any debt."

The trial court found that the documents Mortgage Center provided to NCS "demonstrated the amount of the debt and that it was to be paid immediately upon the failure of [Mortgage Center] to secure loan approval. Therefore, NCS had a reasonable basis to believe that the debt was delinquent." The court also found that the evidence did not support plaintiff's allegation that the debt to Mortgage Center was not delinquent and therefore could not have been reported to the credit reporting agencies. More generally, the court found there was no violation of the FDCPA or the RFDCPA by defendants, and there was no evidence of false or deceptive misrepresentations by them, a finding relevant to all of the causes of action discussed here.

Pitkin, manager of NCS, testified that NCS received the assignment of plaintiff's account from Mortgage Center on May 2, 2008. That account related to charges for an appraisal and credit report arising from a " 'contract' " plaintiff had with Mortgage Center. Pitkin also testified that "[a]ll collection accounts handled by NCS are administered via the computer system. All actions regarding an account are logged in the computer system, along with a notation of the initials of who made the entry, and when." Pitkin testified that "[e]ach account owned by NCS that is subject to reporting to the three major credit reporting agencies is automatically reported to those agencies each month via the NCS computers."

Defense exhibit G was an assignment agreement dated May 2, 2008, assigning Mortgage Center's past due accounts receivable to NCS. Defense exhibit D was an invoice dated January 18, 2008, issued by C.L. Appraisals to Mortgage Center for $400. Plaintiff was the named purchaser/borrower. Exhibit A was an invoice from Advantage Online, bearing plaintiff's name, for credit reporting services in the amount of $12.63. The date referenced on the document is November 14, 2007. Defense exhibit C was the document sometimes referred to as a contract, though plaintiff disputes its status as such. Among other things, the document stated that Mortgage Center would pay for a credit report and appraisal and, in the event that the relationship between Mortgage Center and plaintiff terminated, the credit report fee and appraisal fee would be paid by plaintiff to Mortgage Center. Plaintiff signed the document on January 11, 2008. Defense exhibit F was a letter from Ben Copeland of Mortgage Center to plaintiff dated March 7, 2008. In the letter, Copeland expressed regret that plaintiff had cancelled the loan transaction and tendered an invoice in the amount of $412.63 for the appraisal and credit reporting services.

Based on Pitkin's testimony and defense exhibits C, D, F, and G, we conclude substantial evidence supported the trial court's determination that an outstanding debt had been assigned to NCS and "NCS had a reasonable basis to believe that the debt was delinquent."

Substantial evidence supports the conclusion that defendants were entitled to judgment on plaintiff's first cause of action asserting that defendants misrepresented to each of the three credit reporting agencies that plaintiff had a consumer credit account with Mortgage Center that was defaulted and/or delinquent in violation of section 1692e(2)(A) of title 15 of the United States Code. Substantial evidence supports the conclusion that defendants did not " 'use any false, deceptive, or misleading representation or means in connection with the collection of any debt' " by " '[t]he false representation of— [¶] (2)(A) the character, amount, or legal status of any debt.' "

2. Violations of Section 1692e(2)(A) , (8) & (10) of Title 15 of the United States Code and Civil Code Section 1788 .17 (Second & Fifth Causes of Action)

In her second and fifth causes of action, plaintiff asserted that prior to reporting the alleged debt to the three credit reporting agencies as delinquent on or about May 5, 2008 (second cause of action), and February 28, 2009 (fifth cause of action), defendants failed to notify her regarding the account, its status as delinquent and/or defaulted, that NCS had obtained control of the debt, that NCS was a collections agency, and NCS's intent to report the debt to the credit reporting agencies. Plaintiff asserted that these actions violated section 1692e(8) and (10) of title 15 of the United States Code (second cause of action), and section 1692e(2)(A) and (10) of title 15 of the United States Code (fifth cause of action).

The trial court found that NCS was retained by Mortgage Center on May 2, 2008, and that NCS opened an account for plaintiff on May 5, 2008. The court found that written notice was sent to plaintiff, but it was returned undelivered. The court found that this initial notice was consistent with such notices automatically generated by NCS's computer system. The court further found that Pitkin contacted plaintiff by phone on May 13, 2008, within five to six days after the initial written notice was sent, consistent with NCS policy and procedure. The court found that during that conversation, plaintiff informed Pitkin she had not received the written notice, and she agreed to pay the debt in full. The court noted that plaintiff denied the occurrence of the May 13, 2008 phone call. However, the court concluded plaintiff was mistaken. Subsequently the court expressly found "[i]nitial notice consistent with statutory requirements was sent to [plaintiff] but returned; however, Pitkin contacted [plaintiff] telephonically and discussed the account with [plaintiff] so [she] was aware of the debt." The court found that substantial evidence supported the occurrence of the initial phone call.

As stated ante, Pitkin testified that NCS received the assignment of plaintiff's account from Mortgage Center on May 2, 2008. Defense exhibit H indicated that NCS opened that account on May 5, 2008. Pitkin testified that "[a]ll collection accounts handled by NCS are administered via the computer system. All actions regarding an account are logged in the computer system, along with a notation of the initials of who made the entry, and when." Pitkin also testified that "[e]ach account owned by NCS that is subject to reporting to the three major credit reporting agencies is automatically reported to those agencies each month via the NCS computers." Pitkin testified as to the May 13, 2008 phone call she had with plaintiff concerning the debt and that plaintiff agreed to pay it.

In addition to section 1692e(2)(A) of title 15 of the United States Code, set forth ante, section 1692e(8) of title 15 of the United States Code prohibits a debt collector from "[c]ommunicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed." Section 1692e(10) of title 15 of the United States Code prohibits "[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer."

Contrary to plaintiff's allegations, we conclude that substantial evidence supports the trial court's determination that defendants' actions as alleged in the second and fifth causes of action did not constitute violations of these provisions of the FDCPA. Substantial evidence, including the evidence discussed here and in connection with the first cause of action, supports the determination that defendants received the new account supported by documentation and acted on it accordingly. NCS sent letters to plaintiff about the debt but she apparently did not receive them. On May 13, 2008, Pitkin called plaintiff, they discussed the debt, and plaintiff agreed to pay it. Substantial evidence supports the conclusion that defendants notified plaintiff of the delinquent debt, its status, and their intention to collect it. Thus, substantial evidence supports the conclusion that defendants' actions did not constitute "[t]he false representation of— [¶] (A) the character, amount, or legal status of any debt" (15 U.S.C. § 1692e(2)(A)), "[c]ommunicating or threatening to communicate to any person credit information which is known or which should be known to be false" (15 U.S.C. § 1692e(8), italics added), or "[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer" (15 U.S.C. § 1692e(10), italics added).

3. Violations of Section 1692e(8) and (10) of Title 15 of the United States Code and Civil Code Section 1788 .17 (Third Cause of Action)

In the third cause of action, plaintiff alleged that before reporting the debt to the three credit reporting agencies on or about May 5, 2008, defendants failed to notify her that she had a right to dispute the debt. Plaintiff asserted that this constituted a violation of section 1692e(8) and (10) of title 15 of the United States Code.

For the same reasons discussed in part III.D.2. of the Discussion, ante, defendants' receipt of the account and reporting of the debt did not constitute "[c]ommunicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed" (15 U.S.C. § 1692e(8), italics added), or "[t]he use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer" (15 U.S.C. § 1692e(10), italics added).

Additionally, following Pitkin's telephone conversation with plaintiff on May 13, 2008, plaintiff, according to Pitkin, had agreed to pay the debt, suggesting she did not dispute the debt.

Substantial evidence supports the trial court's determination defendants were entitled to judgment on plaintiff's third cause of action.

4. Violations of Sections 1692e(2)(A) and 1692f(1) of Title 15 of the United States Code and Civil Code Sections 1788 .14, Subdivision (b), and 1788.17 (Fourth, 13th & 14th Causes of Action)

In the fourth cause of action, plaintiff alleged that when defendants reported the debt to the three credit reporting agencies on February 28, 2009, in the amount of $458,¹⁶ adding $46 in interest to the original amount of the debt, their conduct violated sections 1692e(2)(A) and 1692f(1) of title 15 of the United States Code, and Civil Code section 1788.14, subdivision (b). Plaintiff makes essentially the same allegations in the 13th cause of action, in which she alleged defendants reported the debt as $460 on April 1, 2009, and in the 14th cause of action, in which she alleged defendants reported the debt as $468 on June 18, 2009.

16 A February 28, 2009 "credit merge report" in the record indicates that the debt as of that date was $455, not $458.

Section 1692e(2)(A) of title 15 of the United States Code is set forth repeatedly above. Section 1692f(1) of title 15 of the United States Code provides: "A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: [¶] (1) The collection of any amount (including any interest . . . ) unless such amount is expressly authorized by the agreement creating the debt or permitted by law." (Italics added.) Civil Code section 1788.14, subdivision (b) provides: "No debt collector shall collect or attempt to collect a consumer debt by means of the following practices: [¶] . . . [¶] (b) Collecting or attempting to collect from the debtor the whole or any part of the debt collector's fee or charge for services rendered, or other expense incurred by the debt collector in the collection of the consumer debt, except as permitted by law." (Italics added.)

Particularly relevant to these causes of action, the trial court found "no authority for the allegation that the interest assessed on the debt is not authorized by law." The court also found that the documents furnished by Mortgage Center provided NCS with sufficient information to determine a delinquency date of the debt.

Defense exhibit A was the invoice from Advantage Online for credit reporting services, bearing plaintiff's name, in the amount of $12.63. Defense exhibit D was the invoice, dated January 18, 2008, issued by C.L. Appraisals to Mortgage Center with a line item for $400. Plaintiff was the named purchaser/borrower. Defense exhibit C, which plaintiff signed, stated that plaintiff would pay the appraisal and credit reporting fees "immediately" in the event the loan transaction was terminated. Defense exhibit F, the letter from Ben Copeland of Mortgage Center to plaintiff, was dated March 7, 2008. In it, Copeland expressed regret that plaintiff had canceled the loan transaction. He further stated that he was enclosing a bill in the amount of $412.63 for the appraisal and credit reporting services. Copeland further stated that if Mortgage Center did not hear from plaintiff within 30 days, Mortgage Center would seek professional and/or legal assistance in collecting the funds.

Pitkin testified that the amount of the debt increased over time as the result of the accrual of interest calculated at the lawful rate in California beginning on January 18, 2008, the date the original invoice " 'became due.' " Each account NCS handled that was subject to reporting to the three major credit reporting agencies would be automatically reported by the computer system each month. Each report included the automatic assessment of interest.

Thus, substantial evidence supports the conclusions that C.L. Appraisals billed Mortgage Center on January 18, 2008, and that Copeland's demand letter to plaintiff, dated March 7, 2008, indicated that the amount owed was $412.63, and that plaintiff was responsible for paying that amount.

With regard to authority for the accrual of interest, the court relied on Civil Code sections 3287, subdivision (a), 3289, and 3302, as well as Budget Finance Plan v. Sav-On Food Club, Inc. (1955) 44 Cal.2d 565. Civil Code section 3287, subdivision (a) provides, in part: "A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt. This section is applicable to recovery of damages and interest from any debtor." Civil Code section 3289 provides in part: "(a) Any legal rate of interest stipulated by a contract remains chargeable after a breach thereof, as before, until the contract is superseded by a verdict or other new obligation. [¶] (b) If a contract entered into after January 1, 1986, does not stipulate a legal rate of interest, the obligation shall bear interest at a rate of 10 percent per annum after a breach." Civil Code section 3302 provides: "The detriment caused by the breach of an obligation to pay money only, is deemed to be the amount due by the terms of the obligation, with interest thereon." "Where there is no express contract covering the matter, the law awards interest on money from the time it becomes due and payable if such time is certain or can be made certain by calculation." (Budget Finance Plan, supra, at p. 572, fn. 6.)

Based on the foregoing, we conclude that substantial evidence supports the trial court's determinations that there was no support for the claim that the interest assessed was not authorized by law. The authorities discussed in the preceding paragraph authorize interest at a rate of 10 percent. Substantial evidence supports the conclusion that the debt became due, at the earliest, on January 18, 2008, the date of the C.L. Appraisals invoice remitted to Mortgage Center, as the credit reporting services in the amount of $12.63 were billed by Advantage Online on an earlier date.

Moreover, Copeland's demand letter indicated that the "enclosed appraisal and credit reporting invoices total[ed] $412.63." That letter, the C.L. Appraisals invoice for $400, and the Advantage Online bill for $12.63 for credit reporting services, constitute substantial evidence that the original debt, billed on January 18, 2008, was $412.63. The interest assessed, added to the original debt, and reported to the credit agencies, was within the 10 percent statutory rate permitted under California law.¹⁷

17 To the extent necessary, we take judicial notice of the simple mathematics to make this determination as to the amount of interest accrued. (Arden Carmichael, Inc. v. County of Sacramento (2001) 93 Cal.App.4th 507, 513, fn. 9, citing Evid. Code, §§ 452, subd. (h), 459, subds. (a) & (c) [granting the plaintiffs' request to take judicial notice of simple mathematical calculation supporting the analysis].)

Accordingly, we conclude that substantial evidence supports the trial court's determination that defendants were entitled to judgment on the fourth, 13th, and 14th causes of action.

5. Violations of Sections 1692e(2)(A) , (8), 1692g(b) of Title 15 of the United States Code and Civil Code Section 1788 .14, Subdivision (b) (Sixth Cause of Action)

In the sixth cause of action, plaintiff alleged that on March 13, 2009, after defendants received notice that the debt was disputed through the e-Oscar notification, defendants "falsely verified the report of the alleged debt as delinquent and defaulted to the three major credit bureaus without actually obtaining any verification that the alleged debt was an actual consumer credit account, had become delinquent and/or defaulted, that Plaintiff . . . had ever been billed by any party for the amount(s) allegedly owed, and without sending a copy of such verification to the Plaintiff—all as required by 15 U.S.C. 1692g(b)." Plaintiff further asserted that defendants failed to undertake a good faith verification that plaintiff failed to pay any bills or that the debt had a due date. Plaintiff asserted that in addition to section 1692g(b) of title 15 of the United States Code, defendants' conduct violated sections 1692e(2)(A) and 1692e(8) of title 15 of the United States Code.

Section 1692g(a) of title 15 of the United States Code provides: "(a) Notice of debt; contents. Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing— [¶] (1) the amount of the debt; [¶] (2) the name of the creditor to whom the debt is owed; [¶] (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; [¶] (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and [¶] (5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor."

Section 1692g(b) of title 15 of the United States Code provides: "If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this title may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt or request the name and address of the original creditor."

Plaintiff specifically asserted in this cause of action that defendants violated section 1692g(b) of title 15 of the United States Code on two occasions "because they continued to attempt to collect the alleged debt by falsely and deceptively misrepresenting to each of the three major credit bureaus on March 13, 2009 that the alleged debt attributed to Plaintiff . . . with Mortgage Center was verified as correct in all particulars, and in the amount reported, after having been notified in writing by the 'E-OSCAR' system Plaintiff disputed the alleged debt." However, as relevant here, section 1692g(b) of title 15 of the United States Code applies "[i]f the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed." (Italics added.) Plaintiff, at the earliest, notified defendants in writing that the debt was disputed in the March 16, 2009 letter she faxed to NCS. The e-Oscar notification in NCS's computer system was not notification from plaintiff to defendants in writing. Therefore, section 1692g(b) of title 15 of the United States Code, by its terms, does not apply to plaintiff's allegations concerning defendants' conduct on March 13, 2009.

Plaintiff further specifically alleged that defendants violated section 1692g(b) of title 15 of the United States Code "on one additional occasion because they failed to give Plaintiff . . . any copies of documentation relating to the alleged verification of the alleged debt within five days." However, plaintiff's own testimony established that after plaintiff faxed a letter to NCS upon becoming aware of the debt's existence, and before she called Pitkin on March 31, 2009, she received a response from NCS. This response included defense exhibits A, C, D, F, and M. Exhibit A was a bill from Advantage Online in the amount of $12.63 for credit reporting services, bearing plaintiff's name. Exhibit C was the "contract" between plaintiff and Mortgage Center. Exhibit D was the invoice, dated January 18, 2008, issued by C.L. Appraisals to Mortgage Center for $400. Exhibit F was the demand letter from Ben Copeland of Mortgage Center to plaintiff. Exhibit M was Pitkin's March 27, 2009 letter to plaintiff stating that the enclosures "invalidate[d] [plaintiff's] claim of dispute." These exhibits and plaintiff's testimony established that defendants did send plaintiff documentation relating to verification of the debt. Plaintiff's allegation that defendants failed to furnish that information "within five days" misconstrues the language of the statute. The "five days" in section 1692g(a) of title 15 of the United States Code refers to the time "after the initial communication with a consumer in connection with the collection of any debt" that the debt collector must send the consumer the written notification required by that section. Section 1692g(b) of title 15 of the United States Code does not contain a requirement that the debt collector send the consumer the information contemplated in that section within five days.

Nor did defendants' actions constitute "[c]ommunicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed." (15 U.S.C. § 1692e(8).) We have determined that substantial evidence supports the conclusion that defendants reported the debt based on the documentation they had. They did not communicate credit information which was known or should have been known to be false. Additionally, we conclude, in part III.D.7., post, that defendants did not fail to report the debt as disputed once they knew of the dispute. Accordingly, the record does not support a violation of section 1692e(8) of title 15 of the United States Code. Nor, for the same reasons, did defendants' conduct amount to the false representation of "the character, amount, or legal status of any debt." (15 U.S.C. § 1692e(2)(A).)

Accordingly, the trial court properly determined that defendants were entitled to judgment on plaintiff's sixth cause of action.

6. Violations of Section 1692e(11) of Title 15 of the United States Code and Civil Code Section 1788 .17 (Seventh Cause of Action)

In her seventh cause of action, plaintiff asserted that the March 31, 2009 phone call was the first oral communication between plaintiff and Pitkin. Plaintiff further alleged that because Pitkin failed to identify herself as a debt collector, and to inform plaintiff that any information obtained during the call would be used for debt collecting purposes, defendants violated section 1692e(11) of title 15 of the United States Code.

Section 1692e(11) of title 15 of the United States Code specifies that a violation of that section includes "[t]he failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose."

The trial court found that Pitkin called plaintiff on May 13, 2008, "consistent with NCS policy and procedure of contacting the debtor approximately 5-6 days after the initial written notice of the debt was sent to the debtor." Pitkin and plaintiff discussed the debt, and plaintiff agreed that she would pay it in full. Substantial evidence in the form of Pitkin's testimony supports the trial court's findings in this regard. Thus, the March 31, 2009 phone call was not the initial oral communication between plaintiff and Pitkin. Accordingly, the requirements of section 1692e(11) of title 15 of the United States Code, quoted above, are inapplicable. Substantial evidence supports the trial court's determination that defendants were entitled to judgment on the seventh cause of action.

7. Violations of 15 Section 1692e(8) of Title 15 of the United States Code and Civil Code Section 1788 .17 (Eighth & 12th Causes of Action)

In the eighth and 12th causes of action, plaintiff asserted that despite her written letters to defendants on March 16, 2009 (eighth cause of action), and March 31, 2009 (12th cause of action), defendants failed to report the debt as disputed to the credit reporting agencies.

The trial court found that "when a debt is disputed it is reflected in the computer system as an E-Oscar entry and the disputed status of the debt is automatically transmitted to the" three credit reporting agencies. The court additionally found: "[Plaintiff] told Ms. Pitkin that the debt was disputed. The dispute was reported on the computer system as a 'dispute through E-Oscar' entry and thereby automatically transmitted to the 3" credit reporting agencies. The court found that the three credit reporting agencies were "noticed automatically of the dispute and that the debt had been validated."

According to the settled statement, Pitkin testified that the e-Oscar system was an automated reporting system that "notifies NCS when a dispute concerning an NCS account has been filed with one or more of the three major credit reporting agencies." The NCS computer system "handles notifications by [e-Oscar] automatically." An entry on plaintiff's account with NCS, defense exhibit H, indicated that on March 13, 2009, "[e-Oscar] notified NCS of a dispute of [plaintiff's] account." That entry, dated March 13, 2009, stated, "RECV DISPUTE THRU E-OSCAR VRFD AS REPORTED." Upon that notification, NCS's system "automatically verified the disputed account 'as reported' to each of the credit reporting agencies by using the [e-Oscar] system."

We conclude that substantial evidence supports the trial court's determination that the debt was reported to the credit agencies as disputed through the NCS automated system. The testimony, summarized in the settled statement, constitutes substantial evidence that the debt was reported to the credit reporting agencies as disputed automatically through the NCS system. We do note that this description of the testimony could be subject to other interpretations. We cannot say whether Pitkin's actual testimony, rather than a summary of it in a settled statement, would lead us to a different conclusion. However, if there is substantial evidence, contradicted or uncontradicted, that will support the judgment, then we will uphold the judgment regardless of whether the evidence is subject to more than one interpretation. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571 [when " 'two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court' "].) " 'We may not substitute our view of the correct findings for those of the trial court; rather we must accept any reasonable interpretation of the evidence which supports the trial court's decision.' " (Filip v. Bucurenciu (2005) 129 Cal.App.4th 825, 833.) Therefore, substantial evidence supports the court's conclusion that defendants did not "[c]ommunicat[e] or threaten[ ] to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed." (15 U.S.C. § 1692e(8), italics added.) Thus, the trial court properly granted judgment in defendants' favor on the eighth and 12th causes of action.

8. Violations of Section 1692g(a) of Title 15 of the United States Code and Civil Code Section 1788 .17 (Ninth & 10th Causes of Action)

In her ninth cause of action, plaintiff asserted defendants failed to provide her with proof of, and information concerning, the debt within five days of her March 16, 2009 letter. In her 10th cause of action, plaintiff asserted that defendants' March 27, 2009 letter to her failed to contain the requirements set forth in section 1692g(a) of title 15 of the United States Code. She asserted that this letter was the first written communication with her.

Section 1692g(a) of title 15 of the United States Code is set forth in full in part III.D.5. of the Discussion, ante. It provides that "[w]ithin five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing" the specified information. (15 U.S.C. § 1692g(a), italics added.)

Substantial evidence supports the conclusion the neither plaintiff's March 16, 2009 letter nor defendants' March 27, 2009 letter to her was "the initial communication" between the parties. Substantial evidence supports the conclusion the initial communication between the parties occurred, at the latest, during Pitkin's May 13, 2008 call. The requirements of section 1692g(a) of title 15 of the United States Code arise "after the initial communication with a consumer in connection with the collection of any debt," and thus do not apply to subsequent communications 10 months later.

Substantial evidence supports the conclusion that defendants were entitled to judgment on the ninth and 10th causes of action.

9. Violations of Section 1692e(11) of Title 15 of the United States Code and Civil Code Section 1788 .17 (11th Cause of Action)

In the 11th cause of action, plaintiff asserted that in the March 27, 2009 letter to plaintiff, which she contends was the first written communication between NCS and plaintiff, defendants failed to identify themselves as debt collectors as required by section 1692e(11) of title 15 of the United States Code.

"The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that 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" constitutes a violation of section 1692e of title 15 of the United States Code. (15 U.S.C. § 1692e(11).) A debt collector is "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." (Id. at § 1692a(6).)

As stated ante, substantial evidence supports the conclusion that the March 27, 2009 letter was not defendants' initial communication with plaintiff. Thus, the first portion of section 1692e(11) of title 15 of the United States Code is inapplicable to this cause of action.

Being a "subsequent communication," the March 27, 2009 letter was required to state "that the communication is from a debt collector." (15 U.S.C. § 1692e(11).) The letter does not contain that specific language. What it does say is, "This is an attempt to collect a debt and any information obtained will be used for that purpose."

In Volden v. Innovative Fin. Sys. (8th Cir. 2006) 440 F.3d 947, the United States Court of Appeals for the Eighth Circuit considered the precise situation presented here: a "subsequent communication" containing essentially the notification required of initial communications, that the "debt collector is attempting to collect a debt and that any information obtained will be used for that purpose." (15 U.S.C. § 1692e(11).) That court stated: "The . . . letter [to the debtor] states 'Federal law requires us to inform you that this is an attempt to collect a debt and any information obtained will be used for that purpose.' Though the letter does not say it is from a debt collector, the fact it says it is sent in an attempt to collect a debt is sufficient for even the unsophisticated consumer to understand that such a letter is necessarily from a 'debt collector.' While the unsophisticated consumer test is meant to protect consumers of below average sophistication, it also involves an element of reasonableness that prevents bizarre interpretations of debt collection notices. [Citation.] We find the letter 'effectively conveys' the fact that it is from a debt collector, and thus does not violate section 1692e(11). [Citation.]" (Volden, supra, at p. 955.) We reach the same conclusion here.

Substantial evidence supports the determination that defendants were entitled to judgment on the 11th cause of action.

10. Additional Contentions

Plaintiff asserts that the trial court's finding that she affirmed the debt and agreed to pay it in full was improper because it constitutes an example of the trial court considering defense evidence, specifically, Pitkin's testimony, while not allowing her to present additional evidence. She asserts that this improper finding undermined her contentions and proof as to her dispute of the debt, defendants' failure to report the debt as disputed, and the issue of the default date. Plaintiff's contentions in this regard are without merit. In part II of the Discussion, ante, we concluded that plaintiff forfeited her contention that the trial court abused its discretion in considering defense evidence and failing to allow plaintiff to present additional evidence. Therefore, plaintiff's contention—"Once the improperly considered Defense testimony and exhibits are removed from the equation, there would be no conflicting evidence, and all that would be left would be [plaintiff's] evidence . . . which is sufficient for a determination by the trial court in her favor on these, and every other issue raised in the verified First Amended Complaint [citation], and to deny the motion for judgment"—also is without merit.

In the fifth issue in her brief, plaintiff asserts that the trial court erred in concluding defendants prevailed on their bona fide error affirmative defense. However, her contention once again relies on the premise that the trial court erroneously considered defense evidence while refusing to allow her to present additional evidence. We have addressed this issue repeatedly. Relevant to this particular contention, we conclude that the trial court properly considered defense evidence, specifically Pitkin's testimony, in support of defendants' bona fide error defense. In any event, in light of our determinations as to each cause of action, the issue of defendants' bona fide error defense is academic.

IV.

Attorney Fees

A. Plaintiff's Contentions

Plaintiff asserts that neither the FDCPA nor the RFDCPA permit an award of attorney fees merely because an action lacks merit or is found to be frivolous. Plaintiff asserts that to support a finding that the action was brought in bad faith, there had to be a showing that she knew her claims lacked merit and proceeded anyway. According to plaintiff, the trial court's decision failed to explain the factual and legal bases for its award of attorney fees. Plaintiff also asserts that the trial court chose to award attorney fees on its own motion without notice to plaintiff that it was considering doing so.

B. Authorization for Attorney Fees

Insofar as relevant here, "[i]n the case of any action to enforce any liability under this title, the prevailing party shall be entitled to costs of the action. . . . [R]easonable attorney's fees may be awarded to a prevailing creditor upon a finding by the court that the debtor's prosecution or defense of the action was not in good faith." (Civ. Code, § 1788.30, subd. (c), italics added.) An award of attorney fees under Civil Code section 1788.30, subdivision (c) is discretionary. (Gouskos v. Aptos Village Garage, Inc. (2001) 94 Cal.App.4th 754, 764.) "The determination of the legal basis for an award of attorney fees is a question of law that we review de novo. [Citation.]" (Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 921 (Corbett).)

C. Analysis

There are few California cases discussing an award of attorney fees to a prevailing creditor defendant pursuant to Civil Code section 1788.30, subdivision (c). However, the statutory language is highly similar to that in Civil Code section 1780, subdivision (e), part of the Consumer Legal Remedies Act. (Civ. Code, § 1750 et seq.) That section provides, in part, "Reasonable attorney's fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiff's prosecution of the action was not in good faith." (Civ. Code, § 1780, subd. (e).) This provision has been interpreted to require a finding of subjective bad faith. (Corbett, supra, 119 Cal.App.4th at pp. 920-924; Shisler v. Sanfer Sports Cars, Inc. (2008) 167 Cal.App.4th 1, 9.) "When a tactic or action utterly lacks merit, a court is entitled to infer the party knew it lacked merit yet pursued the action for some ulterior motive. [Citation.]" (Corbett, at p. 928.)

We also note here that " 'the general rule that civil statutes for the protection of the public are, generally, broadly construed in favor of that protective purpose.' " (Davidson, supra, 21 Cal.App.5th at p. 289, quoting People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 313, italics omitted.) "It is clear that the [RFDCPA] is a civil statute that was enacted for the protection of the public, and in interpreting it, we are mindful of the fact that, to the extent that the statutory language is ambiguous, the statute should be construed broadly in favor of protecting the public." (Davidson, at p. 289.)

A determination of subjective bad faith calls for a factual inquiry into the plaintiff's subjective state of mind. "Did he or she believe the action was valid? What was his or her intent or purpose in pursuing it? A subjective state of mind will rarely be susceptible of direct proof; usually the trial court will be required to infer it from circumstantial evidence. Because the good faith issue is factual, the question on appeal will be whether the evidence of record was sufficient to sustain the trial court's finding." (Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 932, overruled in part on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532.)

As stated ante, towards the end of its decision, the trial court stated that plaintiff's allegations "were so lacking in merit that the action is frivolous as a matter of law and therefore lacking in good faith. She has alleged hyper-technical violations of the law and misinterpreted the statutes to an extent that she was unable to support her allegations of wrong-doing." The court concluded that "this action falls within the scope of [Civil Code section 1788.30, subdivision (c)] and was not prosecuted in good faith."

Sufficient evidence in the record supports a determination that plaintiff's claims were lacking in merit. Additionally, sufficient evidence supports the trial court's determination that, in some instances, plaintiff alleged "hyper-technical violations of the law," and that she "misinterpreted the statutes to an extent that she was unable to support her allegations of wrong-doing."

However, we do not find sufficient evidence, on this record, to support the conclusion that plaintiff subjectively knew the action was not valid or prosecuted it to any end other than hoping to achieve success on the merits. (See generally Knight v. City of Capitola, supra, 4 Cal.App.4th at p. 932.) There are numerous shortcomings in plaintiff's case. However, what the trial court did not identify in its decision are indicators of plaintiff's subjective bad faith in bringing the action. And, we note, defendants' brief on appeal does no more to identify indicators of plaintiff's subjective bad faith.¹⁸

18 Defendants assert, among other things, that plaintiff forfeited her "untruthful argument because she never raised the lack of attorneys' fees provisions under the FDCPA or RFDCPA in her case in chief, only for the first time in this appeal." To the extent defendants argue that plaintiff waived or forfeited her argument, we find no basis for such forfeiture. We note in this regard that the trial court in its decision determined that defendants would receive an award of attorney fees pursuant to Civil Code section 1788.30, subdivision (c). Defendants did not request attorney fees pursuant to this section in their first amended answer, although they did request attorney fees pursuant to section 128.7. The postdecision order awarding attorney fees was addressed only to the amount of the award. Thus, the fact that in her filings in connection with the postdecision order, plaintiff did not assert that the court's previous determination to award attorney fees was erroneous did not forfeit her contention on appeal.

In the absence of sufficient evidence in the record to support a finding that plaintiff subjectively prosecuted this action in bad faith, we conclude that the record is insufficient to support the award of attorney fees pursuant to Civil Code section 1788.30, subdivision (c). Accordingly, we shall reverse so much of the judgment as awarded attorney fees to defendants in the amount of $90,560.¹⁹

19 Defendants are entitled to $1,220 in costs under Civil Code section 1788.30, subdivision (c), with no requirement of a finding that plaintiff's prosecution of the action was not in good faith.

DISPOSITION

The appeal from the July 14, 2017 decision is dismissed. The judgment is modified by vacating so much of the judgment as awarded $90,560 in attorney fees to defendants pursuant to Civil Code section 1788.30; as so modified, the judgment is affirmed. The order dated September 14, 2017, is modified by vacating so much of the order as awarded attorney fees to defendants in the amount of $90,560; as so modified, that order is affirmed. The other orders appealed from are affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)

KRAUSE, J. We concur: BLEASE, Acting P. J. MURRAY, J.