Opposition ObjectionsCal. Super. - 6th Dist.March 2, 2021KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO 21 CV378926 Santa Clara - Civil Fred W. Schwinn (SBN 225575) Raeon R. Roulston (SBN 255622) Matthew C. Salmonsen (SBN 302854) CONSUMER LAW CENTER, INC. 1435 K011 Circle, Suite 104 San Jose, California 95 1 12-4610 Telephone Number: (408) 294-6100 Facsimile Number: (408) 294-6190 Email Address: fred.schwinn@sjconsumerlaw.com Attorneys for Plaintiff ALEXANDER ZAVAL AGUILAR Electronically Filed by Superior Court of CA, County of Santa Clara, on 12/28/2021 7:01 PM Reviewed By: R. Aragon Case #21 CV378926 Envelope: 7946775 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ALEXANDER ZAVAL AGUILAR, Case No. 2 1 CV378926 (Unlimited Civil Case) Plaintiff, V- MEMORANDUM OF POINTS AND CACH, LLC, a Colorado limited liability company; MANDARICH LAW GROUP, LLP, a California limited liability partnership; CHRISTOPHER D. MANDARICH, individually and in his AUTHORITIES IN OPPOSITION TO MANDARICH LAW GROUP, LLP, AND CHRISTOPHER D. MANDARICH’S SPECIAL MOTION TO STRIKE official capacity; and DOES 1 through 10, Hearing Date: January 11» 2022 inclusive, Hearing Time: 9:00 am. Hearing Dept: 7 D€f€ndants. Hearing Judge: Christopher G. Rudy COMES NOW Plaintiff, ALEXANDER ZAVAL AGUILAR, and submits this Memorandum of Points and Authorities in Opposition t0 Mandarich Law Group, LLP, and Christopher D. Mandarich’s Special Motion to Strike. Hearing Location: 191 North First Street San Jose, California R. Anagon OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 H TABLE OF CONTENTS I. INTRODUCTION .................................................................................................................................. 1 II. OVERVIEW OF RELEVANT FACTS ................................................................................................ 2 III. THE SPECIAL MOTION TO STRIKE SHOULD BE DENIED ....................................................... 3 KOOOQONUl-RUJN NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO A. AGUILAR HAS SHOWN A PROBABILITY OF PREVAILING ON HIS CLAIMS ON HER CLAIMS ........................................................................................... 4 B. DEFENDANTS VIOLATED THE DEBT BUYER ACT ....................................................... 5 1. Threshold Elements ....................................................................................................... 5 2. Defendants’ Complaint Failed to Truthfully State “[T]he Name and an Address 0f the Charge-off Creditor at the Time 0f Charge Off,” in Violation of California Civil Code § 1788.58(a)(6) ....................................................... 5 C. MOVING DEFENDANTS VIOLATED THE RFDCPA ........................................................ 6 1. Threshold Elements ....................................................................................................... 7 2. Defendants Violated Civil Code § 1788.17 ................................................................... 7 3. Materiality is Not Appropriate for Decision 0n Anti-SLAPP. But In Any Event Defendants” Violations are Material ................................................... 10 D. AGUILAR’S RFDCPA CLAIMS ARE NOT COMPULSORY COUNTERCLAIMS .................................................................................................................... 14 E. THERE IS NO DECLARATORY RELIEF “CLAIM” FOR THE COURT TO STRIKE .................................................................................................. 16 F. A DEBT COLLECTOR CANNOT “SUBSTANTIALLY COMPLY” WITH A STRICT LIABILITY STATUTE .................................................................................. 16 G. MOVING DEFENDANTS CANNOT SHOW A “BONA FIDE ERROR” AFFIRMATIVE DEFENSE ......................................................................................................... 17 H. MOVING DEFENDANTS ARE NOT NOT ENTITLED TO ANY ATTORNEY FEES UNLESS THEY SUBSTANTIALLY CHANGE THE POSTURE OF THE CASE ................................................................................................. 18 IV. CONCLUSION ................................................................................................................................. 18 -1- OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO TABLE OF AUTHORITIES Cases Afewerki v. Anaya Law Grp. (9th Cir. 2017) 868 F.3d 771 ....................................................................... 13 Alkan v. Citimortgage, Inc. (N.D.Cal. 2004) 336 F.Supp.2d 1061 ......................................................... 6-7 Brown v. Elec. Arts, Inc. (SD. Cal. 2010) 722 F. Supp. 2d 1148 ............................................................. 18 Cabral v. Martins (2009) 177 Cal. App. 4th 471 .......................................................................................4 Chan v. N. Am. Collectors, Ina, (N.D.Cal. Mar. 24, 2006) 2006 U.S. Dist. LEXIS 13353 ......................................................................... 10 Clark v. Capital Credit & Collection Services, Inc. (9th Cir. 2006) 460 F.3d 1162 ................................. 10 Conroy v. Spitzer (1999) 7O Cal. App. 4th 1446 ........................................................................................ 4 Cowan v. Palisades Collection, Ina, (C.D.Cal. June 15, 2007) 2007 U.S.Dist.LEXIS 44706 ...................................................................... 14-16 De Amara] v. Goldsmith & Hull (N.D.Cal. Feb. 11, 2014) 2014 U.S.Dist.LEXIS 18568 ................ 8-9, 12 Donahue v. Quick Collect, Ina, 592 F.3d 1027 (9th Cir. 2010) .......................................................... 10-11 Gonzales v. Arrow Fin. Servs., LLC (9th Cir. 2011) 660 F.3d 1055 ......................................................... 14 In re Apple Computer Secs. Litig. (9th Cir. 1989) 886 F.2d 1109 ............................................................. 11 Irwin v. Mascott (N.D.Cal. 1999) 96 F.Supp.2d 968 ........................................................................... 11-12 Kashian v. Harriman (2002) 98 Ca1.App.4th 892 ................................................................................ 4, 11 Komarova v. National CreditAcceptance, Inc. (2009) 175 Ca1.App.4th 324 .......................................... 12 Mann v. Quality Old Time Sena, Inc. (2006) 139 Ca1.App.4th 328 .......................................................... 18 Mattson v. U.S. W Commc’ns, Inc. (8th Cir. 1992) 967 F.2d 259 ............................................................ 12 McCollough v. Johnson, Rodenburg & Lauinger, LLC (9th Cir. 2011) 637 F.3d 939 .............................. 17 Nagel v. Twin Laboratories, Inc. (2003) 109 Ca1.App.4th 39 ....................................................................4 Navellier v. Sletten (2002) 29 Ca1.4th 82 ........................................................................................... 2, 3, 4 _ ii _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO People v. Persolve, LLC (2013) 218 Cal. App. 4th 1267 ............................................................................ 6 Sparrow v. Mazda Am. Credit (E.D.Cal. 2005) 385 F.Supp.2d 1063 ....................................................... 16 Tourgeman v. Collins Fin. Servs., (9th Cir. 2014) 755 F.3d 1109 ....................................................... 11, 13 Tourgeman v. Collins Fin. Servs., 2011 U.S. Dist. LEXIS 81070 (S.D. Cal. July 26, 2011) .................................................................... 10-11 Tran v. Velocity Invs., LLC (C.D.Cal. Oct. 23, 2020) 2020 U.S.Dist.LEXIS 197716 ......................... 12-13 Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604 ......................................................................4 Statutes 15 U.S.C. § 16926 ............................................................................................................... 3, 7, 8, 9, 12, 16 15 U.S.C. § 16926(2)(A) ..................................................................................................................... 3, 7, 8 15 U.S.C. § 1692600) ............................................................................................................................ 3, 7 Civil Code § 1788.2(0) ............................................................................................................................... 7 Civil Code § 1788.2(f) ........................................................................................................................ 2, 5, 7 Civil Code § 1788.2(h) ........................................................................................................................... 5, 7 Civil Code§ 1788.13(e) ....................................................................................................................... 3, 13 Civil Code§ 1788.17 .............................................................................................................. 3, 6, 7, 10, 16 Civil Code § 1788.30(e) ........................................................................................................................... 17 Civil Code § 1788.50(a)(1) ......................................................................................................................... 5 Civil Code § 1788.50(c) ......................................................................................................................... 2, 5 Civil Code § 1788.58(a)(6) ............................................................................................................. 3, 5, 6, 8 Civil Code § 1788.62(e) ..................................................................................................................... 13, 14 Code of Civil Procedure § 425.16 .......................................................................................................... 2, 4 Code of Civil Procedure § 426.30(a) ........................................................................................................ 14 - iii - OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO I. INTRODUCTION In 2014, the California Legislature enacted the Fair Debt Buying Practices Act, California Civil Code §§ 1788.50-1788.64 (“Debt Buyer Act”), which strictly mandates certain disclosures by debt buyers in any action the debt buyer brings against a consumer t0 collect a consumer debt. The explicit purpose 0f the California Rosenthal Fair Debt Collection Practices Act (“RFDCPA”) is t0 protect consumers, like AGUILAR. As there is almost no appellate case law on the relatively new Debt Buyer Act, the Court must engage in statutory construction to decide this challenge to the pleadings. The Court should keep in mind that these consumer protection statutes are t0 be liberally construed in favor 0f the consumer, in order t0 effectuate their legislative purpose. The Debt Buyer Act and RFDCPA are strict liability statues, intended to regulate the behavior 0f debt collectors like the moving Defendants. This regulation specifically includes allegations made in a collection complaint. Defendant, CACH, LLC, Via its attorney CHRISTOPHER D. MANDARICH (“MANDARICH”) and his law firm MANDARICH LAW GROUP, LLP (“MLG”), filed a collection lawsuit against AGUILAR in the Superior Court 0f California, Santa Clara County. In so doing, Defendants violated the Debt Buyer Act and RFDCPA in multiple ways. T0 wit, Defendants” Complaint falsely states that, “[t]he charge-off creditor at the time 0f charge-off is One Main Financial Inc...” After the benefit of some discovery, receipt 0f which was greatly delayed by issues with the United States Postal Service, AGUILAR sought a stipulation granting leave t0 file a Cross-Complaint. Rather than respond t0 AGUILAR’S request, Defendants hastily dismissed the collection action, without prejudice. AGUILAR duly filed this action to redress Defendants’ Violations, as explicitly contemplated by the Debt Buyer Act and RFDCPA. Yet Defendants now engage in the very form of litigation abuse the Anti-SLAPP statute was intended t0 correct. “The cure has become the disease - _ 1 _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO SLAPP motions are now just the latest form of abusive litigation.” Navellier v. Stetten (2002) 29 Ca1.4th 82, 96 (dis. opn. 0f Brown, J.). Not only are AGUILAR’S arguments meritorious, AGUILAR is properly using his right to petition the government to redress Violations 0f state and federal consumer protection statutes. Code 0f Civil Procedure § 425.16 was was created t0 put a quick end t0 harassing and unmeritorious lawsuits - not t0 harass parties who bring legitimate consumer protection actions such as this one. II. OVERVIEW OF RELEVANT FACTS On 0r about October 9, 2015, AGUILAR is alleged t0 have incurred a financial obligation in the form 0f a consumer credit account issued by ONEMAIN FINANCIAL, INC. (hereinafter the “alleged debt”).1 AGUILAR generally denies that any debt is owed t0 Defendants in this case. The alleged debt to ONEMAIN FINANCIAL, INC., was primarily for personal, family, 0r household purposes, specifically, t0 purchase food, groceries, and other household items? The alleged debt is therefore a “consumer debt” as that term is defined by California Civil Code § 1788.2(f), and as incorporated by California Civil Code § 1788.50(C). When AGUILAR could n0 longer afford t0 make payments 0n the ONEMAIN FINANCIAL, INC, account, he stopped paying the alleged debt.3 On September 15, 2020, Defendants filed a lawsuit against AGUILAR in the Superior Court of California, Santa Clara County captioned CACH, LLC v. Alexander Zaval Aguilar, Case N0. 20CV37073O (the “collection action”), Which sought to collect the alleged debt.4 Defendants’ Complaint falsely states that, “[t]he charge-off creditor at the time of charge-off is One Main Financial 1 Declaration of Alexander Zaval Aguilar in Opposition t0 Special Motion t0 Strike (“Aguilar Declaration”) 1B. 2 Id. 3 Aguilar Declaration 114. 4 Request for Judicial Notice in Opposition t0 Special Motion to Strike (“RJN”) 111, and Exhibit “A”; see also Aguilar Declaration 115. _ 2 _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO Inc...”5 On February 17, 2021, counsel for AGUILAR sent an email t0 MANDARICH, Who was counsel 0f record for CACH, LLC, in the collection action, requesting a stipulation t0 for leave t0 file a Cross-Complaint based on Violations 0f the Debt Buyer Act.6 Thereafter, on 0r about February 18, 2021, Defendants dismissed the collection action against AGUILAR, without prejudice.7 On March 2, 2021, AGUILAR filed a Complaint for Declaratogy Relief and Damages herein. Therein, AGUILAR alleges that Defendants’ Complaint fails to truthfully state “[t]he name and an address of the charge-off creditor at the time of charge off,” as required by the Debt Buyer Act, California Civil Code § 1788.58(a)(6). Additionally, Defendants: 1) made and used false, deceptive, and misleading representations in an attempt t0 collect the debt, in Violation of California Civil Code § 1788.17, incorporating by reference 15 U.S.C. §§ 16926 and 1692600); and 2) misrepresented the character 0r legal status 0f the debt, in Violation 0f California Civil Code § 1788.17, incorporating by reference 15 U.S.C. §§ 16926(2)(A). On or about September 7, 2021, Defendants, MANDARICH and MLG (collectively “Moving Defendants”) served the instant Special Motion t0 Strike. The Court should note that CACH, LLC, has not joined this special motion to strike, and the motion is directed at the RFDCPA claims against MANDARICH and MLG, and not the Debt Buyer Act claims, Which were brought against CACH only. III. THE SPECIAL MOTION TO STRIKE SHOULD BE DENIED If a defendant meets its initial burden 0f showing that a challenged cause of action is one arising from a protected activity, such as filing a lawsuit, then the burden shifts t0 the plaintiff t0 show a probability 0f prevailing 0n the claim. Navellier, 29 Cal. 4th at 88. “In ruling 0n a motion to strike, the trial court does not weigh the evidence 0r determine questions of credibility; instead the court 5 Declaration 0f Fred W. Schwinn in Opposition to Special Motion t0 Strike (“Schwinn Declaration”) 11114-5, and Exhibit “C”; see also RJN 111, and Exhibit “A.” 6 Schwinn Declaration 116. 7 RJN 112, and Exhibit “B”; see also Aguilar Declaration 116 and Schwinn Declaration 117. _ 3 _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO accepts as true all 0f the evidence favorable t0 the plaintiff.” Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 45-46 (emphasis added). Thus, AGUILAR must “make a prima facie showing 0f facts which would, if credited, support a judgment in his favor.” Conroy v. Spitzer (1999) 70 Ca1.App.4th 1446, 1451. Based on AGUILAR’S sworn Declaration, the Request for Judicial Notice, the other evidence submitted herewith, and the arguments below, AGUILAR has made a prima facie showing 0f facts that, if accepted as true, show that AGUILAR has a probability 0f succeeding on the merits of his claims. A. AGUILAR HAS SHOWN A PROBABILITY OF PREVAILING ON HIS CLAIMS. In ruling on an Anti-SLAPP motion, a court must make two determinations. First, the court decides Whether the defendant has made a threshold showing that the challenged cause 0f action is one arising from protected activity. A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one 0f the categories spelled out in section 425.16, subdivision (e). If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability 0f prevailing 0n the claim. Only a cause 0f action that satisfies both prongs 0f the Anti-SLAPP statute - i.e., that arises from protected speech 0r petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute. Cabral v. Martins (2009) 177 Ca1.App.4th 471, 478 (quoting Tutor-Saliba Corp. v. Herrera (2006) 136 Ca1.App.4th 604) (internal citations and quotations omitted). “[I]n order t0 establish the requisite probability 0f prevailing the plaintiff need only have stated and substantiated a legally sufficient claim.” Navellier, 29 Ca1.4th at 88 (internal quotations and citations omitted). “Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts t0 sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” Id. In considering an Anti-SLAPP motion, “[t]he court does not weigh the evidence or make credibility determinations.” Kashian v. Harriman (2002) 98 Ca1.App.4th 892, 906. Though AGUILAR must concede that his claims arise from actions meant t0 be protected by Section 425.16 (i.e., a lawsuit), AGUILAR can show that he is substantially likely t0 _ 4 _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO succeed at trial. B. DEFENDANTS VIOLATED THE DEBT BUYER ACT Though the Debt Buyer Act claims are not directly at issue in this motion, the enumerated Debt Buyer Act Violation informs the RFDCPA allegations against Moving Defendants. AGUILAR’S Complaint alleges that CACH, LLC, violated the Debt Buyer Act, as Defendants’ Complaint fails t0 truthfully state “[t]he name and an address of the charge-off creditor at the time of charge 0f .” This failure is an enumerated Violation of the Debt Buyer Act, Civil Code § 1788.58(a)(6). 1. Threshold Elements Moving Defendants d0 not contest any 0f the following threshold elements 0f a Debt Buyer Act cause of action: (1) that AGUILAR is a “debtor” as that term is defined by California Civil Code § 1788.2(h), and as incorporated by California Civil Code § 1788.50(c);8 (2) that CACH, LLC, is a “debt buyer” as that term is defined by California Civil Code § 1788.50(a)(1);9 and (3) that the financial obligation alleged to be owed by AGUILAR is a “consumer debt” as that term is defined by California Civil Code § 1788.26), and as incorporated by California Civil Code § 1788.50(c).1° Defendants’ Complaint in the collection action is clearly an attempt t0 collect a debt. 2. Defendants’ Complaint Failed t0 Truthfully State “[T]he Name and an Address 0f the Charge-off Creditor at the Time 0f Charge Off,” in Violation 0f California Civil Code § 1788.58(a)(6) Cal. Civil Code § 1788.58(a)(6) provides: In an action brought by a debt buyer 0n a consumer debt: (a) The complaint shall allege all of the following: *** (6) The name and an address of the charge-off creditor at the time 0f charge off and the charge-off creditor’s account number associated with the debt. The charge-off creditor’s 8 See Aguilar Declaration 113. 9 CACH, LLC, alleges in its Complaint in the collection action that it is a “debt buyer.” Seem 1H, and Exhibit “A.” 10 See Aguilar Declaration 113. _ 5 _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO name and address shall be in sufficient form s0 as t0 reasonably identify the charge-off creditor. Defendants’ Complaint alleges that, “The charge-off creditor at the time 0f charge-off is One Main Financial Inc., 300 St Paul Street, Baltimore, MD 21202[.]” However, upon reviewing the document production in the collection action AGUILAR discovered that the true name of the creditor at charge-off was OneMain Financial Issuance Trust 2015-1, and not One Main Financial Inc., as stated in paragraph 4 0f Defendants’ Complaint - a Violation 0f California Civil Code § 1788.58(a)(6) and a false statement in Violation 0f California Civil Code § 1788.17.“ Notably, Moving Defendants do not (and cannot) allege that One Main Financial Inc., is in fact the charge-off creditor. Moving Defendants instead make a number 0f arguments t0 the effect that the Debt Buyer Act Violation does not matter. C. MOVING DEFENDANTS VIOLATED THE RFDCPA The RFDCPA is a remedial statute “that should be interpreted broadly in order t0 effectuate its purpose.” See generally Komarova v. National Credit Acceptance, Inc. (2009) 175 Ca1.App.4th 324, 340. “[C]iVi1 statutes for the protection of the public, such as the California [Rosenthal Fair Debt Collection Practices Act] Act, should be interpreted broadly in favor of that protective purpose.” People v. Persolve, LLC (2013) 218 Cal. App. 4th 1267, 1275. Moving Defendants spend much of their motion arguing that they have not violated the federal Fair Debt Collection Practices Act (“FDCPA”). However this is misdirection, as AGUILAR has not alleged any Violations 0fthe FDCPA itself, but of Civil Code § 1788.17, which incorporates the text of the FDCPA, 15 U.S.C. § 1692, by reference. “California has not somehow expanded the scope 0f federal liability under the FDCPA through Cal. CiV. Code § 1788.17. Instead, California simply incorporated by reference the text 0f certain federal provisions into the [RFDCPA], rather than copying them verbatim into the California code. Any resulting liability, however, remains a state claim. ” Alkan 11 Schwinn Declaration W46, and Exhibit “C.” _ 6 _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO v. Citimortgage, Inc. (N.D.Cal. 2004) 336 F.Supp.2d 1061, 1065. 1. Threshold Elements Moving Defendants d0 not contest any of the following threshold elements of an RFDCPA cause 0f action: (1) that AGUILAR is a “debtor” as that term is defined by Civil Code § 1788.2(h);12 (2) that Moving Defendants are each a “debt collector” as that term is defined by Civil Code § 1788.2(0); 13 and (3) that the financial obligation alleged t0 be owed by AGUILAR is a “consumer debt” as that term is defined by Civil Code § 1788.2(f).14 Thus, the only matter for argument With regard t0 this cause 0f action is Whether Defendants violated the RFDCPA. 2. Defendants Violated Civil Code § 1788.17 Civil Code § 1788. 17 provides, in relevant part: Notwithstanding any other provision 0f this title, every debt collector collecting or attempting t0 collect a consumer debt shall comply With the provisions 0f Sections 1692b t0 1692j, inclusive, of, and shall be subject to the remedies in Section 1692K of, Title 15 of the United States Code. Defendants have Violated Civil Code § 1788.17, incorporating by reference the text of 15 U.S.C. §§ 16926, 16926(2)(A), and 1692600). a. The text 0f 15 U.S.C. §§ 16926, 16926(2)(A), and 1692600) 15 U.S.C. § 16926 states in relevant part: A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application 0f the foregoing, the following conduct is a Violation 0f this section: (2) The false representation 0f-- (A) the character, amount, 0r legal status of any debt; 0r (10) The use 0f any false representation 0r deceptive means t0 collect or attempt t0 collect any debt or t0 obtain information concerning a consumer. 12 See Aguilar Declaration 113. 13 See RJN w3-120, and Exhibits “1” through “118.” 14 See Aguilar Declaration 113. _ 7 _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO Defendants filed their Complaint in the collection action in an attempt t0 collect a consumer debt from AGUILAR. As noted above, Defendants’ Complaint fails t0 truthfully state “[t]he name and an address of the charge-off creditor at the time 0f charge 0f ,” in Violation of Civil Code § 1788.58(a) (6). This particular Violation of the Debt Buyer Act necessarily also constitutes a false statement in an attempt t0 collect a debt. Moving Defendants assert that there is no Violation 0f 15 U.S.C. § 16926(2)(A) because “[n]othing in this alleged misrepresentation addresses the character, amount, 0r legal status 0f the debt.” This argument is Without merit because incorrect identification 0f a creditor in the assignment chain necessarily addresses both the character and legal status of the debt. This argument reflects Moving Defendants’ overall tone 0f “What’s the big deal? It’s close enough.” However, the RFDCPA is, like its federal analog, a strict liability statute, meant to regulate the behavior 0f debt collectors. As noted above, there are few reported Debt Buyer Act decisions. Thus, there are n0 decisions that AGUILAR can find Which address a RFDCPA claim that is premised 0n a misrepresentation of the charge-off creditor, something debt buyers were not required t0 allege in collection complaints prior t0 2014. Rather than baldly assert that a misrepresentation under the Debt Buyer Act is not actionable under the RFDCPA, AGUILAR Will argue by analogy t0 reported decisions under the FDCPA wherein courts considered the import 0f botched original creditor disclosures. For example, FDCPA Violations have been found where the plaintiff inaccurately stated that the consumer defendants had become directly indebted t0 the plaintiff, instead of t0 plaintiff” s assignor, as would have been stated in a well-drafted collection complaint. That is, the debt collector implicitly misidentified the original creditor. The district court’s analysis is worth quoting at length: Precedent on this exact issue is sparse but unanimous. Three Southern District of California cases hold that a debt collection complaint’s failure t0 identify the original creditor is deceptive and material under the least sophisticated consumer standard, and therefore violates section 16926 of the FDCPA. Caudillo v. Portfolio Recovery Assocs., _ 8 _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO LLC, No. 12-200, 2013 U.S. Dist. LEXIS 114305, 2013 WL 4102155 (SD. Cal. Aug. 13, 2013); Thomas v. Portfolio Recovery Assam, LLC, No. 12-1188, 2013 U.S. Dist. LEXIS 113639, 2013 WL 4517175 (S.D. Cal. Aug. 12, 2013); Heathman v. Portfolio Recovery Assocs., LLC, N0. 12-515, 2013 U.S. Dist. LEXIS 98742, 2013 WL 3746111 (SD. Cal. July 15, 2013). In those cases, the state court complaint stated that the plaintiffs owed the debt t0 the defendant debt collector, that “money was lent by [the debt collector] t0 [the plaintiff] at [plaintiff’ s] request,” for “credit card purchases and/or cash advances on the credit card account issued by [the debt collector]” and “for which [plaintiffs] promised to pay [the debt collector]”. Caudillo, 2013 U.S. Dist. LEXIS 114305, 2013 WL 4102155 at *1; Thomas, 2013 U.S. Dist. LEXIS 113639, 2013 WL 4517175 at *6; Heathman, 2013 U.S. Dist. LEXIS 98742, 2013 WL 3746111 at *1. As stated in Caudillo, the language violated section 16926 because the “complaint fails t0 identify, indeed omits any reference t0, Wells Fargo, the original creditor. And it compounds the failure to identify by repeatedly referring t0 the purported debt as owed to, or a result 0f money lent by 0r credit extended by, [the debt collector].” Caudillo, 2013 U.S. Dist. LEXIS 114305, [WL] at *3 (citations omitted). The language was material because “it could frustrate the least sophisticated consumer's ability t0 choose a response t0 Defendant’s complaint. For example, Without the true identity 0f the original creditor, the least sophisticated consumer is left unable t0 verify the debt purportedly owed, much less attempt to resolve that debt directly and extrajudicially.” Thomas, 2013 U.S. Dist. LEXIS 113639, 2013 WL 4517175 at *4. See Wallace v. Washington Mut. Bank F.A., 683 F 3d 323 (6th Cir. 2012) (incorrectly naming the creditor violates FDCPA section 16926). The language in the complaints in Caudillo, Thomas, and Heathman is similar t0 the language found in the complaint in this case, which states, “the Defendants became indebted t0 the Plaintiff 0n an open book account for money . . . at the special insistence and request of the Defendants,” that “an account was stated in writing by and between the Plaintiff and the Defendants wherein it was agreed that the Defendants, and each of them, were indebted to the Plaintiff” and that “credit for the purchase of goods, wares, merchandise or services rendered [was] provided t0 the Defendants by the Plaintiff . . . .” FAC Ex. 1 at W 4, 8, 10. These words indicate that LHR “provided” credit t0 the De Amarals and that LHR and the De Amarals had an agreement “in writing.” It is undisputed that n0 such agreement exists and n0 credit was “provided” by LHR t0 the plaintiffs. Therefore, these are false statements. De Amara] v. Goldsmith & Hull (N.D.Cal. Feb. 11, 2014) 2014 U.S.Dist.LEXIS 18568, *12-15. The Court should follow the same line 0f reasoning as in De Amara], Caudillo, Thomas, and Heathman above. Moving Defendants attempt t0 downplay their false statement in two ways. First, Moving Defendants assert that they at least correctly identified the original creditor. But the fact that Moving Defendants did not commit every single Violation possible is not grounds for granting a motion OPPOSITION TO SPECIAL MOTION TO STRIKE -9- Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO t0 strike, When at least one Violation is apparent. Second, Moving Defendants implicitly argue that it does not matter that they misrepresented the charge-off creditor, by asserting the ways in Which Onemain Financial, Inc., could be seen as similar to a charge off creditor. “Because the FDCPA is a strict liability statute, proof 0f one Violation is sufficient t0 defeat a motion t0 dismiss and support summary judgment for a Plaintiff. In light 0f this strict liability standard, a consumer need not show intentional conduct by the debt collector in order to be entitled t0 damages, and there are no unimportant Violations. Further, n0 proof 0f deception 0r actual damages is required t0 obtain statutory remedies.” Chan v. N. Am. Collectors, Inc. (N.D.Cal. Mar. 24, 2006) 2006 U.S.Dist.LEXIS 13353, *7. As further set forth below, there is no “substantial compliance” element 0r affirmative defense in Civil Code § 1788.17, 0r in the text of the federal FDCPA incorporated by reference therein. 3. Materiality is Not Appropriate for Decision 0n Anti-SLAPP. But In Any Event Defendants’ Violations are Material Moving Defendants rely, like all debt collector defendants, 0n Donahue v. Quick Collect, Inc. (9th Cir. 2010) 592 F.3d 1027, t0 push an argument that any Violation need be “material” t0 be actionable. The materiality gambit started as a last ditch summary judgment tactic When the Violation was indisputable; now, bolder debt collector defendants have made this argument a centerpiece 0f their anti-SLAPP abuse. It is important to understand what Donahue holds, and what it does not. The Court in Donahue states: “immaterial statements, by definition, d0 not affect a consumer’s ability t0 make intelligent decisions.” Id. at 1034. Continuing, the Donahue court held “that the materiality requirement functions as a corollary inquiry into whether a statement is likely to mislead an unsophisticated consumer. The materiality inquiry focuses our analysis on the same ends that concerned us in Clar -- protecting consumers from misleading debt-collection practices.” Id. There are two issues With Defendants’ materiality argument. First and most importantly, “[m]ateria1ity is a fact-specific issue that should ordinarily be left t0 the trier 0f fact.” Tourgeman v. _ 10 _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO Collins Fin. Servs. (S.D.Cal. July 26, 201 1) 2011 U.S. Dist. LEXIS 81070 (citing In re Apple Computer Secs. Litig, (9th Cir. 1989) 886 F.2d 1109, 1113). That is, materiality is not appropriate in considering an anti-SLAPP motion, wherein “[t]he court does not weigh the evidence or make credibility determinations.” Kashian, 98 Cal. App. 4th at 906. Second, even if the Court could reach the question, Moving Defendant’s misrepresentations about the identity 0f the charge off creditor are material. This is not a case, such as Donahue, wherein the defendants accurately stated the amount owed by the consumer but simply misstated how the amount was calculated. See Donahue, 592 F.3d at 1034. This case is factually distinguishable from Donahue, because in Donahue there was no misrepresentation. It is indisputable that Moving Defendants failed to accurately disclose the charge-off creditor here. Moreover, the standard in determining Whether a communication violates the relevant consumer protection statutes is that 0f the “least sophisticated consumer.” A material misrepresentation is one that could “cause the least sophisticated debtor to suffer a disadvantage in charting a course 0f action in response t0 the collection effort.” Tourgeman v. Collins Financial Services, Inc. (9th Cir. 2014) 755 F.3d 1109, 1121. This standard is objective, not subjective. Whether AGUILAR even realized (before retaining counsel) that Defendants’ Complaint in the collection action contained a false representation is not the test. The Ninth Circuit has held that “[a]n FDCPA plaintiff need not even have actually been misled 0r deceived by the debt collector’s representation; instead, liability depends on whether the hypothetical ‘least sophisticated debtor’ likely would be misled.” Tourgeman, 755 F.3d at 1117-18. “The ‘least sophisticated debtor’ standard is lower than simply examining whether particular language would deceive 0r mislead a reasonable debtor . . . [this] debtor may be uninformed, naive, and gullible.” Id., at 1119. The Ninth Circuit even stated that, “a consumer . . . who did not actually receive a dunning letter directed toward him at the time it was sent, nonetheless may bring an action challenging the lawfulness 0f that letter under the Act.” Id., at 1118; see also Irwin v. Mascott (N.D.Ca1. 1999) 96 _ 11 _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO F.Supp.2d 968, 976 (“A debt collector violates the FDCPA by sending a notice containing unlawful provisions. Whether the notice is received is irrelevant t0 the issue 0f liability.”), and Mattson v. U.S. W. Commc'ns, Inc. (8th Cir. 1992) 967 F.2d 259, 261 (Congress’ ultimate objective was . . . regulating the conduct of debt collectors. Once debt collector placed the letters in the mail, its conduct With respect to any Violation of the FDCPA was complete). Simply put, once Defendants filed and served a Complaint which fails to truthfully state “[t]he name and an address of the charge-off creditor at the time of charge off”, liability attached. De Amara] is again instructive. In the blockquote above, the district court explicitly states that a misrepresentation of the identity 0f the original creditor is material t0 the least sophisticated consumer. Its analysis t0 arrive at that conclusion follows below: But are they material? The “least sophisticated debtor” standard is objective, not subjective. Terran v. Kaplan, 109 F.3d at 1432. It is “lower than simply examining whether particular language would deceive or mislead a reasonable debtor,” Id., and “is designed t0 protect consumers of below average sophistication 0r intelligence, 0r those Who are uninformed or naive.” Gonzales, 660 F. 3d at 1061. A debtor is not required t0 present evidence that the least sophisticated debtor would be misled. Gonzales v. Arrow Financial Servs., LLC, 489 F. Supp. 2d at 1149 (S.D. Cal. 2007) aff’d, 660 F.3d 1055 (9th Cir. 2011) (“The cases that have addressed Whether a collection letter’s language violates Section 1692e’s provisions have done so without looking at extrinsic evidence . . . defendant’s argument that the lack of evidentiary support requires summary judgment be entered in defendant’s favor is meritless."). Defendants cannot evade liability simply because they communicated a misrepresentation to a consumer who was not misled. Under the least sophisticated consumer test, the language used here is material because it “can be reasonably read to have two 0r more different meanings, one of which is inaccurate.” Gonzales, 660 F.3d at 1061-62 (internal quotation omitted). The state court complaint may be read to represent that LHR is a creditor “who offers 0r extends credit creating a debt 0r t0 Whom a debt is owed” rather than a debt collector that "receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection 0f such debt for another." 15 U.S.C.A. § 1692a(4). This representation runs afoul 0f the FDCPA’s definition of creditor, which explicitly excludes debt collectors. Id. De Amara], 2014 U.S.Dist.LEXIS 18568, *15-16. Defendants’ citation of Tran v. Velocity Invs., LLC (C.D.Cal. Oct. 23, 2020) 2020 _ 12 _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO U.S.Dist.LEXIS 197716, at *16-19 is inapposite. This federal district court opinion is at best persuasive authority, not binding on this Court. Second, the district court discussed the consumer’s claim that “the power of attorney contained in the Borrower Registration and Limited Power of Attorney is invalid because it did not comply With California Probate Code § 4121.” AGUILAR makes n0 such claim here. Moreover, the Tran court granted summary judgment to the debt collector only as to the federal FDCPA claims on the facts in that case, and dismissed any state law claims without prejudice. Finally, Moving Defendants misconstrue Afewerki v. Anaya Law Grp. (9th Cir. 2017) 868 F.3d 771. In Afewerki, the Ninth Circuit reversed a granting 0f summary judgment t0 the debt collector, Who had obtained a default judgment in an amount higher than the debtor owed. Moreover, Afewerki does not stand for the proposition that AGUILAR needs t0 “explain how naming of OneMain Financial, instead 0f another party, as the charge-Off creditor somehow disadvantaged him in responding t0 the Collection Complaint,” but quite the opposite. Because the materiality inquiry focuses 0n the objective question 0f how the least sophisticated debtor could have reacted to a misstatement, the question of what Afewerki himself would actually have done differently had Anaya Law Group not misstated the amount 0f his debt is irrelevant in determining materiality. As we have explained: [A] consumer possesses a right 0f action even Where the defendant's conduct has not caused him or her t0 suffer any pecuniary 0r emotional harm. An FDCPA plaintiff need not even have actually been misled 0r deceived by the debt collector's representation; instead, liability depends 0n Whether the hypothetical “least sophisticated debtor” likely would be misled. The district court’s determination that Afewerki would not have proceeded differently absent the error might mean that he did not suffer actual damages and might disqualify him from obtaining such damages, but that determination does not mean that [the debt collector’s misrepresentations] were “mere technical falsehoods.” Afewerki, 868 F.3d at 776, citing Tourgeman, 755 F.3d at 1117-19. While it is easy for an attorney to posit t0 a Judge that it is obvious what was really meant by the pleading, the understanding 0f a trained legal mind is is not the standard for evaluating debt collector _ 13 _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO communications, but instead that of the “least sophisticated consumer.” “We are not, however, to read the language from the perspective of a savvy consumer, and consumers are under n0 obligation to seek explanation of confusing or misleading language in debt collection [communications].” Gonzales v. Arrow Fin. Servs., LLC (9th Cir. 201 1) 660 F.3d 1055, 1062. D. AGUILAR’S RFDCPA CLAIMS ARE NOT COMPULSORY COUNTERCLAIMS Moving Defendants’ next argument in its kitchen sink strategy is the assertion that AGUILAR’S RFDCPA claims are a compulsory counterclaim, and thus should have been brought in the collection action. This claim is incorrect, because Defendants’ collection 0f the alleged debt does not arise from the same transaction as AGUILAR’S claims in the Complaint herein. Additionally, Moving Defendants’ position is hypocritical, given that AGUILAR sought a stipulation granting leave t0 file a Cross- Complaint in the collection action, and rather than respond t0 AGUILAR’S request, Defendants stealthily dismissed the collection action, Without prejudice. As before, there are no California appellate opinions directly 0n point regarding whether a RFDCPA claim is a compulsory counterclaim t0 a collection action. However, district courts sitting in this State have addressed the question in the context of FDCPA claims. Code of Civil Procedure § 426.30(a) is the State’s compulsory cross-complaint provision, Which provides in pertinent part: If a party against whom a complaint has been filed and served fails t0 allege in a cross- complaint any related cause 0f action Which (at the time 0f serving his answer t0 the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause 0f action not pleaded. The Central District of California thoroughly analyzed the issue of Whether FDCPA and RFDCPA claims were compulsory counterclaims to a debt collection action in Cowan v. Palisades Collection, Inc. (C.D.Cal. June 15, 2007) 2007 U.S.Dist.LEXIS 44706. “The Court must undertake a two-part inquiry t0 determine whether Cowan has waived his FDCPA and Rosenthal Act claims by failing t0 assert them in the state action. In order for an action to be waived: (1) the claim must be a _ 14 _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO ‘related cause of action’ and (2) the plaintiff must have failed t0 bring the claim in the earlier action.” Id., at *4. “T0 find out Whether a claim derives from the same transaction, California courts apply the ‘logical relationship’ test. The logical relationship test queries whether there are common issues of fact and law for both causes of action that would make them part 0f the same transaction 0r occurrence and therefore, compulsory.” Id., at *5, citing Currie Med. Specialties, Inc. v. Bowen (1982) 136 Cal. App. 3d 774, 777, and Saunders v. New Capitalfor Small Buss., Inc. (1964) 231 Cal. App. 2d 324, 336. Applying the logical relationship test, the district court held: While at first glance it may seem that debt collection and collection practices claims are logically related since they deal with the general subject matter 0f debts, that is Where the similarity begins and ends. The factual basis for the actions, issues raised, and evidence used t0 substantiate the claims are different for collection actions than for wrongful collection claims. While there may be limited factual overlap, the facts giving rise t0 the two claims are different in time, place, manner, and conduct. The material facts in a debt collection action are the validity, existence, and accrual 0f debt, perhaps taking place long before one tries t0 collect. The facts giving rise t0 a wrongfill practices claim, 0n the other hand, deal with any abusive 0r deceptive actions during the actual collection process. The legal issues raised by the actions are different as well. While a collection action focuses 0n Whether there is an enforceable contractual duty t0 pay, a FDCPA claim concerns whether the collection methods were abusive or deceptive. The existence of a debt has n0 bearing on whether a plaintiff in a FDCPA and Rosenthal action can recover. The evidence used t0 prove a debt collection action and wrongful collection methods is different as well. Evidence 0f a debt owed could be paperwork demonstrating the existence of and failure t0 pay a loan. Evidence of wrongful collection methods could be Witness testimony, letters, phone calls or inappropriate commencement of legal action. 15 U.S.C. § 1692(d) (harassment includes repeated phone calls); 15 U.S.C. § 1692(f)(1) (unfair practices include attempts t0 recover a greater amount than expressly agreed to 0r stipulated by the law). Simply demonstrating the existence 0f a debt does not demonstrate that the debt collection agency acted wrongfully. Conversely, establishing harassment in collection methods need not show that there was an enforceable debt to begin With. Although testimony would likely come from the same parties--creditor and debtor--the issues on which they would testify would be completely different. Although a wrongful action claim certainly could have been asserted in the state action since there was concurrent jurisdiction over it, this does not automatically mean that it was required. 15 U.S.C. § 1692k(d) (permitting FDCPA claims to be brought in any court 0f competent jurisdiction). _ 15 _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO Cowan, at *5-8 (internal citations omitted). As the district court succinctly concluded, “One should not confuse the freedom t0 assert the claims with the necessity t0 d0 s0.” Cowan, at *8; see also Sparrow v. Mazda Am. Credit (E.D.Cal. 2005) 385 F.Supp.2d 1063, 1067 (FDCPA and debt collection actions may share factual overlap but legal issues and evidence relating t0 the claims are distinct, making it permissive). Here, as in Cowan, AGUILAR’S suit arises from a different transaction from the collection complaint. AGUILAR certainly may have brought this action as a Cross-Complaint, and even tried t0 d0 so, but the RFDCPA claim here for misrepresentations in the collection complaint is not a compulsory counterclaim. E. THERE IS NO DECLARATORY RELIEF “CLAIM” FOR THE COURT TO STRIKE While AGUILAR seeks declaratory relief in his Complaint, there is n0 declaratory relief “claim” 0r cause of action for the Court to strike. Moreover, t0 the extent Moving Defendants take the position that their Complaint in the collection action was dismissed before this case was filed, that dismissal was Without prejudice,” meaning the collection action could be refiled on Defendants’ whim. F. A DEBT COLLECTOR CANNOT “SUBSTANTIALLY COMPLY” WITH A STRICT LIABILITY STATUTE Moving Defendants implicitly argue in multiple ways that they have substantially complied With the RFDCPA. But this argument is red herring. For example, though Moving Defendants assert (correctly), that there is n0 requirement under the FDCPA t0 identify the charge-off creditor, the RFDCPA explicitly prohibits false statements in an attempt t0 collect a debt. Thus, falsely identifying the charge-off creditor would Violate both the Debt Buyer Act and the RFDCPA, specifically Civil Code § 1788.17, which incorporates the text of 15 U.S.C. § 16926 by reference. As such, the Court should not be misdirected by arguments that non-compliance With state civil procedure is not an FDCPA Violation. The nature 0f the Debt Buyer Act Violation alleged here is critical. Similarly, the 15 RJN 112, and Exhibit “B”; see also Aguilar Declaration 116 and Schwinn Declaration 1T7. _ 16 _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO Court should not endorse Moving Defendants’ blithe dismissal 0f a portion 0f the Debt Buyer Act concerned With disclosures to be provided in a lawsuit as “procedural rules” and not “substantive law.” This is not a case concerned With, e.g., type size, but With disclosure of a key part of the assignment chain during litigation. G. MOVING DEFENDANTS CANNOT SHOW A “BONA FIDE ERROR” AFFIRMATIVE DEFENSE The only way for a debt collector to escape liability is pursuant t0 the “bona fide error” affirmative defense set forth in Civil Code § 1788.30(e). According to Civil Code § 1788.30(e): A debt collector shall have no civil liability t0 Which such debt collector might otherwise be subject for a Violation 0f this title, if the debt collector shows by a preponderance 0f evidence that the Violation was not intentional and resulted notwithstanding the maintenance of procedures reasonably adapted t0 avoid any such Violation. “[T]0 qualify for the bona fide error defense, the defendant must prove that (1) it violated the consumer statute unintentionally; (2) the Violation resulted from a bona fide error; and (3) it maintained procedures reasonably adapted t0 avoid the Violation.” Moving Defendants d0 not make evem a token attempt at this defense, probably because a mistake 0f law is not a “bona fide error.” That Moving Defendants believed - wrongly - that it did not matter whether their Complaint truthfully states “[t]he name and an address of the charge-off creditor at the time of charge off,” is not a “bona fide error.” “[A] mistake about the law is insufficient by itself to raise the bona fide error defense.” McCollough v. Johnson, Rodenburg & Lauinger, LLC (9th Cir. 201 1) 637 F.3d 939, 948. Moreover, Moving Defendants cannot show that they maintained procedures reasonably adapted t0 avoid the Violations alleged in AGUILAR’S Complaint, because Moving Defendants do not believe that they made an error in drafting the Complaint. This is shown by Moving Defendants’ attacks 0n the pleadings herein. For the reasons above, Moving Defendants cannot succeed 0n any “bonafide error” affirmative defense. _ 17 _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO H. MOVING DEFENDANTS ARE NOT ENTITLED TO ANY ATTORNEY FEES UNLESS THEY SUBSTANTIALLY CHANGE THE POSTURE OF THE CASE AGUILAR has shown above why this Anti-SLAPP Motion should never have been brought. Moving Defendants revealed that they are simply looking for a litigation advantage in the form 0f an early windfall attorney fee award. The Court should reject this Motion in its entirety. However, even if Moving Defendants were t0 somehow prevail in part, this does not automatically give rise t0 an entitlement t0 attorney fees. The Court needs t0 100k at Whether the posture 0f the case has substantially changed. Under certain circumstances, a defendant may not be considered a prevailing party even though the court granted its anti-SLAPP motion because “the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion.” Mann v. Quality Old Time Sew, Inc. (2006) 139 Ca1.App.4th 328, 340. “The crucial question is one 0f practicality; did anything of substance (technical Victories notwithstanding) change in the posture of the case and the claims being lodged against the defendant after it brought the special motion t0 strike than were in existence beforehand.” Brown v. Elec. Arts, Inc. (SD. Cal. 2010) 722 F. Supp. 2d 1148, 1155. V. CONCLUSION Moving Defendants” false representations set forth above Violate the Debt Buyer Act and thus the RFDCPA. AGUILAR has thus established a probability 0f prevailing on his claims, and respectfully requests that this Court decline to strike any 0f AGUILAR’S causes of action or theories of recovery, and deny Moving Defendants’ Special Motion t0 Strike in its entirety. 00000 _ 18 _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case N0. 21CV378926 \OOOflQUl-RUJNr-A NNNNNNNNNr-tr-tr-tr-tr-tr-‘r-‘r-tr-‘r-A OOQONUI-PUJNHOKOOOQQUI-PUJNF-‘O CONSUMER LAW CENTER, INC. Dated: December 28 2021 By: D Fred W. Schwinn (SBN 225575) m Raeon R. Roulston (SBN 255622) D Matthew C. Salmonsen (SBN 302854) CONSUMER LAW CENTER, INC. 1435 K011 Circle, Suite 104 San Jose, California 95 1 12-4610 Telephone Number: (408) 294-6100 Facsimile Number: (408) 294-6190 Email Address: fred.schwinn@sjconsumerlaw.com Attorneys for Plaintiff ALEXANDER ZAVAL AGUILAR _ 19 _ OPPOSITION TO SPECIAL MOTION TO STRIKE Case No. 21CV378926