Christopher Phillips v. Archstone Simi Valley Llc et al

NOTICE OF MOTION AND MOTION for Partial Summary Judgment as to Adjudication of Liability

C.D. Cal.October 27, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOUIS P. DELL, ESQ. (SBN 164830) LAW OFFICE OF LOUIS P. DELL 715 South Victory Blvd. Burbank, CA 91502 (818) 478-2822 (Office) (818) 436-5966 (Fax) e-mail: ldell@louisdell.com Attorney for Plaintiff, CHRISTOPHER PHILLIPS IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CHRISTOPHER PHILLIPS, Plaintiffs, vs. ARCHSTONE SIMI VALLEY LLC, et al., Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) CASE NO. 15-cv-05559-DMG (PLAx) PLAINTIFF CHRISTOPHER PHILLIPS’ NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST DEFENDANTS ARCHSTONE SIMI VALLEY LLC, AVALONBAY COMMUNITIES, INC., KIMBALL, TIREY & ST. JOHN LLP, CHRIS EVANS, ASHLEY ROSSETTO, FAIR COLLECTIONS AND OUTSOURCING OF NEW ENGLAND, INC.; MEMORANDUM OF POINTS AND AUTHORITIES Date: December 2, 2016 Time: 9:30 a.m. Ctrm: 8C (1st Street) Pretrial Conf.: January 24, 2017 Jury Trial: February 21, 2017 -1- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 1 of 23 Page ID #:1470 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT AND TO ALL PARTIES OF RECORD: NOTICE IS HEREBY GIVEN that Plaintiff will move the Court for partial summary judgment pursuant to Fed. R. Civ. P., Rule 56(c) as follows: Plaintiff seeks and order adjudicating the following claims of liability: 1. Defendants Archstone Simi Valley LLC and Avalonbay Communities, Inc. are each liable to the plaintiff for violations of the California Rosenthal Act. 2. Defendants Kimball, Tirey & St. John LLP, Chris Evans, and Ashley Rossetto are each liable to the plaintiff for violations of the Fair Debt Collections Practices Act. 3. Defendant Fair Collections and Outsourcing of New England, Inc. is liable to the plaintiff for violations of the Fair Debt Collections Practices Act and the California Rosenthal Act. LOCAL RULE 7-3 COMPLIANCE The parties met and conferred on September 22, 2016 and continuing (Archstone, Avalonbay, KTS, Evans, Rossetto), and on September 26, 2016 and continuing (FCO), regarding the plaintiff's motion for party summary judgment. The parties were unable to resolve any disputes regarding the foregoing. Dated: October 27, 2016 LAW OFFICE OF LOUIS P. DELL /s/ Louis P. Dell Louis P. Dell, Esq. Attorney for Plaintiff, CHRISTOPHER PHILLIPS -2- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 2 of 23 Page ID #:1471 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 APPLICABLE LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fair Debt Collection Practices Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Rosenthal Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 UNDISPUTED FACTS RELATED TO UNLAWFUL DETAINER PROCEEDINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. LIABILITY OF ARCHSTONE AND AVALONBAY. . . . . . . . . . . . . . . . . . . . . . 4 A. Prosecution of Second Unlawful Detainer- § 1692e(5). . . . . . . . . . . . . . . . . . . 5 B. No Validation Notice in 3-Day Notice - § 1692g(a)(2)-(5). . . . . . . . . . . . . . . . 7 C. No Notice of Attempt to Collect a Debt in 3-Day Notice- § 1692e(11). . . . . . 8 D. Unauthorized Attorney Fees - §§ 1692e(2), 1692e(5), 1692f(1). . . . . . . . . . . . 9 E. Past Due Rent - §§ 1692e(2), 1692e(5), 1692f(1). . . . . . . . . . . . . . . . . . . . . . . 9 F. Service of Ledger - §§ 1692e(2), 1692e(5), 1692f(1). . . . . . . . . . . . . . . . . . . 10 G. Telephone Calls to Collect Debt - §§ 1692e(2), 1692f(1). . . . . . . . . . . . . . . . 10 H. Debt Collection Letters - §§ 1692e(2), 1692f(1). . . . . . . . . . . . . . . . . . . . . . . 11 I. Debt on Credit Report - §§ 1692e(2) 1692(8), 1692f(1). . . . . . . . . . . . . . . . . 11 II. LIABILITY OF KTS LAW FIRM AND ITS ATTORNEYS OF RECORD EVANS AND ROSSETTO.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 KTS Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Chris Evans Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Ashley Rossetto Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 III. LIABILITY OF DEBT COLLECTOR FCO.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 -i- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 3 of 23 Page ID #:1472 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES Brink v. First Credit Res., 57 F.Supp.2d 848 (D.Ariz.1999). . . . . . . . . . . . . . . . . 14 Campo v. Kennedy, 491 F.Supp.2d 891 (N.D.Cal.2006). . . . . . . . . . . . . . . . . . . . 14 Chicago Title Ins. Co. v. AMZ Ins. Services, Inc., 188 Cal.App.4th 401 (2010). . 15 Ditty v. CheckRite, Ltd., 973 F.Supp. 1320 (D.Utah 1997). . . . . . . . . . . . . . . . . . 14 Fox v. Citcorp Credit Svcs, Inc., 15 F.3d 1507 (9th Cir 1993).. . . . . . . . . . . . . 6, 10 Gouskos v. Aptos Village Garage, Inc., 94 Cal.App.4th 754 (2001). . . . . . . . . . . . 5 Heintz v. Jenkins, 514 U.S. 291 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Joseph v. J.J. Mac Intyre Companies, L.L.C. 281 F.Supp.2d 1156 (N.D.Cal. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Kistner v. Law Offices of Michael P. Margelefsky, L.L.C., 518 F.3d 433 (6th Cir.2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Komarova v. National Credit Acceptance, Inc., 175 Cal.App.4th 324 (2009). . . . 6 Mabe v. G.C. Servs. Ltd. Partnership, 32 F.3d 86 (4th Cir. 1994).. . . . . . . . . . . . . 1 Marshall v. Int’l Longshoremen’s and Warehousemen’s Union, 57 Cal.2d 781 (1962).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 McCollough v. Johnson, Rodenburg & Lauinger, LLC 637 F.3d 939 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Musso v. Seiders, 194 F.R.D. 43 (D.Conn.1999). . . . . . . . . . . . . . . . . . . . . . . . . . 14 Pikes v. Riddle, 38 F.Supp.2d 639 (N.D.Ill.1998). . . . . . . . . . . . . . . . . . . . . . . . . 14 Piper v. Portnoff Law Assocs., 274 F.Supp.2d 681. . . . . . . . . . . . . . . . . . . . . . . . 14 Richards v. CH2M Hill, Inc., 26 Cal.4th 798 (2001). . . . . . . . . . . . . . . . . . . . . . . . 6 Schwarm v. Craighead, 552 F.Supp.2d 1056 (E.D. Cal. 2008). . . . . . . . . . . . 13, 14 FEDERAL STATUTES 15 U.S.C. § 1692, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 15 U.S.C. §§1692b through 1692j.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 15 U.S.C. § 1692a(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 -ii- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 4 of 23 Page ID #:1473 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 U.S.C. § 1692a(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16 15 U.S.C. § 1692a(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 15 U.S.C. § 1692k. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 § 1692(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 § 1692a.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 16 § 1692a(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 § 1692e(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, , 12 § 1692e(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 § 1692e(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, , 7, , 12 § 1692e(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 § 1692f(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 § 1692g(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, , 12 Fed. R. Civ. P., Rule 56(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATE STATUTES Cal. Civ. Code § 1788, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Cal. Civ. Code § 1788.17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Cal. Civ. Code § 1788.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Cal. Civ. Code § 1788.17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Cal. Civ. Code § l788.2(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Cal. Civ. Code § 1788.2(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Cal. Civ. Code § 1788.2(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Cal. Civ. Code § 1788.2 subds. (e) and (f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Cal. Civ. Code §1788.2(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Cal. Civ. Code § 1788.30(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Cal. Civ. Code § 1788.30(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Cal. Civ. Code § 1788.30(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 -iii- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 5 of 23 Page ID #:1474 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal. Civ. Code § 2300. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Cal. Civ. Code § 2317. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Cal. Corp. Code § 16305. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 -iv- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 6 of 23 Page ID #:1475 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT INTRODUCTION This motion for summary adjudication seeks an order finding that each of the defendants who are the subject to this motion is liable to the plaintiff for damages under the Fair Debt Collection Practices Act (FDCPA) [15 U.S.C. § 1692, et seq.] and/or the California Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act") [Cal. Civ. Code § 1788, et seq.]. APPLICABLE LAW Fair Debt Collection Practices Act The threshold requirement for the application of the FDCPA is that prohibited practices are used in an attempt to collect a debt. See, e.g., Mabe v. G.C. Servs. Ltd. Partnership, 32 F.3d 86, 87-88 (4th Cir. 1994) A debt collector found to have violated the FDCPA is liable for the debtor’s actual damages or damages of not less than $1,000 for each violation of the FDCPA, 15 U.S.C. § 1692k. The remedial purpose of the Fair Debt Collection Practices Act (FDCPA) is to safeguard consumers from abusive and deceptive debt collection practices by debt collectors. § 1692(e) Rosenthal Act Under the Rosenthal Act, “[e]very 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.” Cal. Civ. Code § 1788.17. The purpose of the Rosenthal Act is to prohibit debt collectors from engaging in unfair or deceptive acts or practices in the collection of consumer debts and to require debtors to act fairly in entering into and honoring such debts. Cal. Civ. Code § 1788.1(a). Any debt collector who violates this act is liable to the debtor for actual damages. Cal. -1- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 7 of 23 Page ID #:1476 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Civ. Code § 1788.30(a). A debt collector who willfully and knowingly violates this act, shall additionally be liable to the debtor for a penalty of not less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000). Cal. Civ. Code § 1788.30(b). UNDISPUTED FACTS RELATED TO UNLAWFUL DETAINER PROCEEDINGS From July 2009 to March 2014, Plaintiff Christopher Phillips ("Phillips") was a tenant and lessee of a residential apartment unit located at 1631 East Jefferson Way, #206, Simi Valley, CA 93065 (hereinafter "the premises"). [PUF 2, 13] The premises are owned by Defendant Archstone Simi Valley LLC, ("Archstone") which was subsequently converted into real estate partnerships owned by Defendant Avalonbay Communities, Inc., ("Avalonbay") [PUF 3-7] On April 19, 2013, Archstone through Avalonbay (hereinafter "Archstone/ Avalonbay") caused an unlawful detainer action to be filed against Phillips in the case Archstone Simi Valley LLC v. Chris Phillips, Ventura County Superior Court, Case no. 56-2013-00435146-CL-UD-SIM (hereinafter "first UD action") [PUF 14] The first UD action sought recovery of possession of the premises, past-due rent in the amount of $1,505, attorney fees, forfeiture of the agreement, plus damages in the amount of $50.17 per day from May 1, 2013 for each date Phillips remained in possession. [PUF 16] A 3-Day Notice to Pay Rent or Quit attached to and incorporated by reference to the complaint in the first UD action alleged that rent was owing and unpaid since April 1, 2013. [PUF 17] Judgment on the first UD Action was entered on August 22, 2013 in favor of Phillips. The judgment decrees that Phillips is entitled to possession of the premises, that Archstone receive nothing from Phillips, and that Phillips is awarded costs. [PUF 18] On November 27, 2013, Archstone/Avalonbay caused a second unlawful detainer action to be filed against Phillips in the case Archstone Simi Valley LLC v. Chris Phillips, Ventura County Superior Court Case no. 56-2013-00445273-CL-UD-VTA (hereinafter "second UD action") [PUF 19] The second UD action sought recovery of -2- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 8 of 23 Page ID #:1477 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 possession of the premises, past-due rent in the amount of $11,660, attorney fees, forfeiture of the agreement, plus damages in the amount of $62.66 per day from November 1, 2013 for each date Phillips remained in possession. [PUF 24] A 3-Day Notice to Pay Rent or Quit attached to and incorporated by reference to the complaint in the second UD action alleged that rent was owing and unpaid since April 1, 2013. [PUF 25] Judgment on the second UD Action was entered on March 7, 2014 in favor of Archstone as against Phillips, and awarded it possession of the premises, past-due rent of $11,660, holdover damages of $7,080.58 and costs pursuant to a memorandum of costs. [PUF 27] Phillips appealed the judgment in the second UD action. [PUF 29] On March 12, 2014, KTS prepared Ventura Sheriff Threat Assessment as a preliminary step to request that Phillips be locked out from the premises. [PUF 30] Avalonbay explained to Phillips that he had no other options to stay and that no matter what, he had to move out. [PUF 31] Phillips moved out in March 2014 because he lost the case and that meant the sheriff would to evict him. [PUF 32] On January 6, 2015, the appellate division of the Ventura County Superior Court reversed the judgment in the second UD action. [PUF 34, 42] The Opinion and Judgment held: (1) The first unlawful detainer action ended in a judgment for Phillips and against Archstone on August 26, 2013, (2) the second unlawful detainer proceeding began with Archstone's service of a three-day notice to pay rent or quit on October 18, 2013, (3) the only ground alleged in the three-day notice and the unlawful detainer complaint filed on November 27, 2013, for Archstone's entitlement to immediate possession was Phillips's alleged failure to pay rent when due for the months of April through October, 2013, (4) during this period, Archstone offered and Phillips accepted renewal of the lease, and (5) Phillips tendered rent for each of the months during this period, but Archstone rejected the tenders because the matter was "in litigation" (presumably referring to the first unlawful detainer action which ended in August, 2013, with a judgment against Archstone and for Phillips). [PUF 35-39] -3- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 9 of 23 Page ID #:1478 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Opinion and Judgment held that the undisputed evidence of Phillips' tender of rent when due defeated Archstone's right to a judgment of immediate possession. These undisputed facts are fatal to the unlawful detainer judgment. [PUF 40] It further held that there is no "in litigation" exception to the rule that the landlord must accept timely tender of rent payments when due. Archstone could not rely upon an unsuccessful unlawful detainer action as an excuse or justification for denying Phillips's timely tender of rent payments and then assert non-payment of rent as the basis for a later unlawful detainer action. [PUF 41] Final judgment on the second UD Action was entered on May 27, 2015, in favor of Phillips, adjudging that Archstone receive nothing from Phillips, and that Phillips is awarded costs. [PUF 45] I. LIABILITY OF ARCHSTONE AND AVALONBAY The second cause of action in the second amended complaint alleges that Archstone/Avalonbay committed numerous violations of the Rosenthal Act. [PUF 1] Under that act, the term “debt collector” means any person who, in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection. The term includes any person who composes and sells, or offers to compose and sell, forms, letters, and other collection media used or intended to be used for debt collection, but does not include an attorney or counselor at law. Cal. Civ. Code § 1788.2(c). In the instant case, the facts are undisputed that Archstone/Avalonbay is the property owner and initiated three-day notices to rent or quit, retained a law firm to file unlawful detainers for the collection of back-rent, utilities, late fees, and attorney fees, and forwarded the delinquent account to a debt collector for collection of these same items all of which were reported as a debt collection item on his credit report. [PUF passim] Archstone/Avalonbay is a debt collector under the Rosenthal Act. The Rosenthal Act pertains to the collection of consumer debts that are the result of a "consumer credit transaction." Cal. Civ. Code § 1788.2 subds. (e) and (f). The -4- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 10 of 23 Page ID #:1479 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rosenthal Act requires debt collectors attempting to collect debts in California to comply with the FDCPA, specifically 15 U.S.C. §§ 1692b through 1692j. Cal. Civ. Code § 1788.17. 1 But whereas the FDCPA applies to the collection of “debts” (15 U.S.C. § 1692a(5)), the Rosenthal Act applies to “consumer credit transactions” (Cal. Civ. Code § 1788.2 subds. (e) and (f)). The terms "consumer debt" and "consumer credit" mean "money, property or their equivalent, due or owing or alleged to be due or owing from a natural person by reason of a consumer credit transaction." Cal. Civ. Code §1788.2(f). The term "consumer credit transaction" means "a transaction between a natural person and another person in which property, services or money is acquired on credit by that natural person from such other person for personal, family, or household purposes." Cal. Civ. Code § 1788.2(e). The California court of appeal in Gouskos v. Aptos Village Garage, Inc., 94 Cal.App.4th 754 (2001) interpreted § 1788.2(e) to mean simply that “there is a consumer credit transaction when the consumer acquires something without paying for it.” Id. 759. See also, Koller v. West Bay Acquisitions, LLC, No. C 12-00117 (USDC N.D. July 11, 2012) [late fees and penalties involve a “credit transaction” under the Rosenthal Act] In this case, it cannot be disputed that past-due rent, attorney fees, court costs, damages, late fees were “services or money is acquired on credit” for “personal, family, or household purposes” which in this arose out of Phillips’ continued possession of his apartment unit. The unlawful detainers allege that Phillips continued to have possession of his apartment without paying the rent due, and that he owed the other fees and late charges, all of which was acquired without paying for it, all of which were reported as a debt collection item on his credit report. See, Koller, supra. A. Prosecution of Second Unlawful Detainer- § 1692e(5) Archstone/Avalonbay filed its second unlawful detainer on November 27, 2103, 1 References to §§ 1692b - 1692j refer to those sections of Title 15 of the United States Code. -5- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 11 of 23 Page ID #:1480 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 which exposed Phillips to a risk of paying back rent, attorney fees, late fees, and damages, did not terminate until May 27, 2015 upon entry of final judgment in favor of Phillips. [PUF 29, 45] Email exchanges between Archstone/Avalonbay and its debt collector, reflect that its attorney of record advised that even though the unlawful detainer judgment in the second UD action had been reversed, that Archstone/ Avalonbay and FCO could "proceed as a non-judgment collection." [PUF 64] Archstone/Avalonbay and FCO have not ceased all collection efforts against Phillips. [PUF 65] The instant lawsuit was filed on July 22, 2015 which is within the one-year statute of limitations of the Rosenthal Act. Actions under the Rosenthal Act “may be brought... within one year from the date of the occurrence of the violation.” Cal. Civ. Code § 1788.30(f) The one year statute of limitations defense can be overcome by the continuing violation doctrine, which permits recovery “for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct within the limitations period[.]” Richards v. CH2M Hill, Inc., 26 Cal.4th 798, 812 (2001). “The key is whether the conduct complained of constitutes a continuing pattern and course of conduct as opposed to unrelated discrete acts. If there is a pattern, then the suit is timely if ‘the action is filed within one year of the most recent [violation]’ [citation], and the entire course of conduct is at issue.” Joseph v. J.J. Mac Intyre Companies, L.L.C. 281 F.Supp.2d 1156, 1161 (N.D.Cal. 2003) cited and relied on by Komarova v. National Credit Acceptance, Inc., 175 Cal.App.4th 324 (2009) [the continuing violation doctrine permits recovery for violations of the Rosenthal Act that occurred beyond the statute of limitations]. A debt collector may not threaten to take, or take, legal action which cannot be taken. § 1692e(5). The plain meaning of the term "legal action" encompasses all judicial proceedings. Fox v. Citcorp Credit Svcs, Inc., 15 F.3d 1507, 1515 (9th Cir 1993) The act of prosecuting the second UD action was for the purpose of evicting Phillips from the premises, forfeiting the lease, recovering unpaid rent, damages, attorney fees and court -6- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 12 of 23 Page ID #:1481 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 costs. The prosecution of an unlawful detainer is inherently a “continuing pattern and course of conduct” which did not end until May 25, 2016. Violation of the § 1692e(5) go beyond prosecution of the action and include even those acts occurring prior to the one-year statute of limitation such as the 3-Day Notice which was posted on Phillips’ door on October 18, 2013 [PUF 46], the service of the ledger in December 2013 [PUF 53], the filing a memorandum of costs in March 2014 [PUF 28], opposing the appeal in August 2014 [PUF 33], and filing a motion to tax costs in April 2015 [PUF43]. Given the Opinion and Judgment which held that the undisputed evidence of Phillips' tender of rent when due defeated Archstone/Avalonbay’s right to a judgment of immediate possession, these undisputed facts are fatal to the unlawful detainer judgment. [PUF 40] Archstone/Avalonbay could not rely upon an unsuccessful unlawful detainer action as an excuse or justification for denying Phillips's timely tender of rent payments and then assert non-payment of rent as the basis for a later unlawful detainer action. [PUF 41] By filing the second UD action for nonpayment of rent against Phillips seeking the rent for the same period of time covered in the first UD action, Archstone/ Avalonbay violated the FDCPA. [PUF 51] Based upon all of the above actions, Archstone/Avalonbay violated § 1692e(5) and is liable to Phillips for damages. B. No Validation Notice in 3-Day Notice - § 1692g(a)(2)-(5) On or about October 18, 2013, the Archstone/Avalonbay caused a 3-Day Notice to Pay Rent or Quit ("3-Day notice") to be posted on Phillips' door and mailed to him. This notice is a prerequisite to the filing of an unlawful detainer action. [PUF 13, ¶7] Although this 3-Day Notice took place outside the limitations period, it is sufficiently linked to unlawful conduct of prosecuting the second unlawful detainer which occurred within limitations period in that the lawsuit sought to recover what was demanded in the 3-Day Notice. The notice stated that rent had not been paid since April 1, 2013 through October 1, 2013 for a total of $11,660 in past-due rent. [PUF 46] The 3-day notice was -7- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 13 of 23 Page ID #:1482 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 an initial communication concerning the allege debt and which did not contain a validation notice as required by § 1692g(a)(2)-(5). [PUF 47] Section 1692g(a)(2)-(5) provides: Within five days after the initial communication with a debtor in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the debtor has paid the debt, send the debtor a written notice containing (1) the amount of 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. It is undeniable that the 3-Day Notice did not contain the validation notice as require above, and therefore Archstone/Avalonbay violated § 1692g(a)(2)-(5) and is liable to Phillips for damages. C. No Notice of Attempt to Collect a Debt in 3-Day Notice- § 1692e(11) 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, except that this paragraph shall not apply to a formal pleading made in connection with a legal action. § 1692e(11) The 3-Day Notice is not a formal pleading and therefore it was required to advise Phillips that Archstone/Avalonbay was attempting to collect a debt and that any the information will be used for that purpose. [PUF 49] The failure of the notice to include the warning violated § 1692e(11). -8- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 14 of 23 Page ID #:1483 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Unauthorized Attorney Fees - §§ 1692e(2), 1692e(5), 1692f(1) The 3-Day Notice stated that if Phillips failed to pay the rent (which the Opinion and Judgment held was not owed) then he would be sued and required to pay attorney fees which were not authorized by law or by the lease. [PUF 50] The second UD complaint incorporated the 3-Day Notice and also requested attorney fees. [PUF 17] 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, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law. § 1692f(1). 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 of the foregoing, the following conduct is a violation of this section: (2) The false representation of—(A) the character, amount, or legal status of any debt. § 1692e(2). In this case, the 3-Day Notice threatened legal action to recover attorney fees which the Opinion and Judgment held could not be done, thereby violating § 1692e(5). The second UD action posed a continuing threat of unauthorized attorney fees. These threats of were not based upon any lease or law authorizing it which violated § 1692f(1). The Opinion and Judgment also means that the request for attorney fees had no “legal status” and therefore violated § 1692e(2). E. Past Due Rent - §§ 1692e(2), 1692e(5), 1692f(1) From the service of the 3-Day Notice on October 18, 2013 and continuing at least until judgment was entered on May 27, 2015, Archstone/ Avalonbay used the second UD action to attempt to collect past-due rent in the amount of $11,660 which included rent for the same period of time covered in the first UD action. [PUF 52] -9- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 15 of 23 Page ID #:1484 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For the same reasons as previously discussed, this violated §§ 1692e(2), 1692e(5), 1692f(1) F. Service of Ledger - §§ 1692e(2), 1692e(5), 1692f(1) In December 2013, during the discovery phase of the second UD action Archstone/Avalonbay served on Phillips a ledger which sought $50/month late fees for past-due rent, and attorney fees in the amount of $590 all related to the first UD action in which Phillips was the prevailing party. [PUF 53] Actions taken as part of discovery during litigation can violate FDCPA. McCollough v. Johnson, Rodenburg & Lauinger, LLC 637 F.3d 939 (9th Cir. 2011). For the same reasons as previously discussed, this violated §§ 1692e(2), 1692e(5), 1692f(1) G. Telephone Calls to Collect Debt - §§ 1692e(2), 1692f(1) Archstone/Avalonbay and defendant Fair Collections and Outsourcing of New England, Inc. ("FCO") entered into a written agency agreement which authorized FCO to engage in collection activities on their behalf. [PUF 54] On May 13, 2014, Archstone/Avalonbay referred the Phillips debt to FCO for collection in the amount of $25,294.28. [PUF 55] Archstone/Avalonbay as a debt collector under the Rosenthal Act is vicariously liable for violations of the FDCPA committed by FCO. See, Fox v. Citcorp Credit Svcs, Inc., 15 F.3d 1507, 1516 (9th Cir 1993) [debt collector liable for violations of FDCPA committed by its attorney]. In this case, FCO contacted Phillips by phone on numerous occasions and demanded that he pay a debt he did not ow in the amounts of $15,176.57 up to $31,147.25. [PUF 56] FCO also made daily calls to Phillips friends, work, and family for the purpose of collection the debt. [PUF 57] These calls were ongoing during the litigation. Archstone/Avalonbay is vicariously liable for FCO’s telephone calls which violated §§ 1692e(2) & 1692f(1). -10- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 16 of 23 Page ID #:1485 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H. Debt Collection Letters - §§ 1692e(2), 1692f(1) On May 14, 2014, FCO sent Phillips a debt collection letter which demanded that he pay $31,147.25 which was an amount supplied by Archstone/Avalonbay. [PUF 58] On February 9, 2015, FCO sent Phillips a debt collection letter which demanded that he pay $25,294.28. The letter contained a breakdown of charges which reflected that $31,147.25 was owed, and which included utilities, back-rent, late charges, legal costs/evictions, damage receipts, and accelerated rent. [PUF 59] On March 7, 2015, FCO sent Phillips a debt collection letter which demanded that he pay $15,176.57 which was 40% off of the $25,294.28. [PUF 60] I. Debt on Credit Report - §§ 1692e(2) 1692(8), 1692f(1) FCO reported the collection account to the national credit reporting bureaus: Equifax, Trans Union, or Experian. [PUF 58-60] FCO did not delete the collection account on Phillips' TransUnion, TRW and Equifax credit file until May 19th, 2015. [PUF 61] Even though Phillips disputed the debt by opposing the UD actions at all stages, FCO never informed the credit reporting agencies that the debt was disputed. [PUF 62] A debt collector may not communicate 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. § 1692e(8). By causing FCO to report the debt to the national credit reporting agencies which Archstone/Avalonbay knew to be false, in by further failing to note in the credit report that the item was disputed by Phillips, violated the FDCPA. Archstone/Avalon therefore violated §§ 1692e(2) 1692(8), 1692f(1). II. LIABILITY OF KTS LAW FIRM AND ITS ATTORNEYS OF RECORD EVANS AND ROSSETTO The first cause of action in the second amended complaint alleges that Kimball, Tirey & St. John LLP, ("KTS"), managing partner Chris Evans, and associate Ashley Rossetto committed numerous violations of the Fair Debt Collection Practices Act. [PUF 1] -11- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 17 of 23 Page ID #:1486 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KTS Liability Defendant KTS is a limited liability law partnership. [PUF 8] KTS is a debt collector within the definition of Title 15, United States Code, § 1692a, and a debt collector within the meaning of Cal. Civil Code § l788.2(b). [PUF 9] KTS represented Archstone/Avalonbay in the second UD action. [PUF 20] KTS policy with respect to making sure that they are not collecting on a debt that is either not owed or not accurate is to review documents that are provided by the client. For example, KTS would review a ledger if it was provided by the client and if that ledger does not match the amount of money demanded in the pay or quit notice, it would then place the case on hold and contact the client to clarify one way or the other. [PUF 22] KTS as a debt collector and the attorney of record is liable for all debt collection activities taken on behalf of Archstone/Avalonbay. The U.S. Supreme Court in Heintz v. Jenkins, 514 U.S. 291 (1995) held that the FDCPA applies to attorneys “who regularly engage in consumer-debt collection activity, even with the activity consists of litigation.” Id. at 299.). A. Prosecution of Second Unlawful Detainer- § 1692e(5) It cannot be disputed that KTS, as attorney of record, represented Archstone/ Avalonbay in the first and second UD actions. [PUF 15, 20] All of the analyses made in Sect. I.A., supra, apply here which renders KTS liable for violations of this FDCPA provision. B. No Validation Notice in 3-Day Notice - § 1692g(a)(2)-(5) C. No Notice of Attempt to Collect a Debt in 3-Day Notice- § 1692e(11) D. Unauthorized Attorney Fees - §§ 1692e(2), 1692e(5), 1692f(1) E. Past Due Rent - §§ 1692e(2), 1692e(5), 1692f(1) F. Service of Ledger - §§ 1692e(2), 1692e(5), 1692f(1) KTS is liable for violations of the above provisions pertaining to the 3-Day Notice, the requests for attorney fees, past due rent, as well as service of the ledger which -12- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 18 of 23 Page ID #:1487 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contained those charges. The 3-Day Notice sought attorney fees which were not authorized by law or by the lease. [PUF 50] It cannot be disputed that KTS incorporated the 3-Day Notice to Pay Rent or Quit into the complaint in the second UD action which alleged that rent was owing and unpaid since April 1, 2013. [PUF 25] and that it verified that the notice was accurate. KTS verified the complaint under penalty of perjury in the second UD action that the allegations were true and correct and that it had evidentiary support. [PUF 23] From the service of the 3-Day Notice on October 18, 2013 and continuing at least until judgment was entered on May 27, 2015, the second UD action attempted to collect past-due rent in the amount of $11,660 which included rent for the same period of time covered in the first UD action. [PUF 52] In the discovery phase of the second UD action, KTS served on Phillips a ledger which sought $50/month late fees for past-due rent, and attorney fees in the amount of $590 all related to the first UD action in which Phillips was the prevailing party. [PUF 53] All of the analyses made in Sect. I.B.-I.F., supra, apply here which renders KTS liable for violations of these FDCPA provision. Chris Evans Liability Defendant Chris Evans ("Evans") is the managing partner at KTS and is liable as a debt collector for the reasons that follow. To be liable under the FDCPA, a defendant must qualify as a “debt collector," which § 1692a defines as “any person who uses any instrumentality of interstate commerce ... 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." § 1692a(6). [italics added] Schwarm v. Craighead, 552 F.Supp.2d 1056, 1073 (E.D. Cal. 2008) interprets § 1692a(6) definition of debt collector broadly, relying on statutory language, federal regulations, and a survey of case law. The Staff Commentary on the FDCPA explains that this definition includes “[e]mployees of a debt collection business, including a corporation, -13- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 19 of 23 Page ID #:1488 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 partnership, or other entity whose business is the collection of debts owed another." [12] 53 Fed.Reg. 50102 (Dec. 13, 1998). The FDCPA expressly prohibits certain acts by “any person ... in any business." 15 U.S.C. § 1692a(6) (emphasis added). Without distinguishing between an employee's position within the corporation, the Staff Commentary also explains that “any person" includes an “employee of a corporation. " 53 Fed.Reg. 50102 (Dec. 13, 1998) (emphasis added). As the Brumbelow court explained, “[w]here Congress has chosen to use broad language, that language should be given its full effect no matter how sweeping." 372 F.Supp.2d at 619; accord Pikes v. Riddle, 38 F.Supp.2d 639, 640 (N.D.Ill.1998) (“[I]t is highly unlikely that Congress wished to restrict liability to the often small corporate vehicle used for collection, and the statutory language clearly brings all those personally involved within the ambit of ‘debt collector.’ " ) Schwarm v. Craighead, 552 F.Supp.2d at 1070-71. Schwarm’s survey of federal court decisions around the country lists courts which have found an individual personally liable if the individual 1) materially participated in collecting the debt at issue, del Campo v. Kennedy, 491 F.Supp.2d 891, 903 (N.D.Cal.2006) ; Brink v. First Credit Res., 57 F.Supp.2d 848, 862 (D.Ariz.1999) ; 2) “exercise[d] control over the affairs of [the] business, Piper v. Portnoff Law Assocs., 274 F.Supp.2d 681, 689-90; 3) was “personally involved in the collection of the debt at issue," Musso v. Seiders, 194 F.R.D. 43, 46 (D.Conn.1999) ; or 4) “was ‘regularly engaged, directly and indirectly, in the collection of debts.’ " Kistner v. Law Offices of Michael P. Margelefsky, L.L.C., 518 F.3d 433, 438 (6th Cir.2008) (quoting Ditty v. CheckRite, Ltd., 973 F.Supp. 1320, 1337 (D.Utah 1997) Under the California rules of agency, an attorney partner who represents a client in litigation is an undisputed agent of that client whether by actual or ostensible authority. Cal. Corp. Code § 16305. “Under traditional legal concepts the partnership is regarded as an aggregate of individuals with each partner acting as agent for all other partners in the transaction of partnership business, and the agents of the partnership act as agents for all of the partners.” Marshall v. Int’l Longshoremen’s and Warehousemen’s Union, 57 Cal.2d 781, 783 (1962). Moreover, an attorney’s name on the caption connotes ostensible authority. Cal. Civ. Code § 2300, 2317. “Ostensible authority arises as a result -14- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 20 of 23 Page ID #:1489 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of conduct of the principal which causes the third party reasonably to believe that the agent possesses the authority to act on the principal’s behalf.” Chicago Title Ins. Co. v. AMZ Ins. Services, Inc., 188 Cal.App.4th 401, 426–427 (2010) (original italics, internal citations omitted) Under any of the aforementioned standards, the undisputed facts show that Evans “regularly collect[ed] or attempt[ed] to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6). Evans is the managing partner at KTS as of 2009, supervises associate attorney Ashley Rossetto in the landlord-tenant section. [PUF 10] He was the attorney of record and lead attorney in the first and second UD actions. [PUF 15, 20] Evans as the attorney of record and signatory opposed Phillips filed a motion to compel in the second UD action and also filed a Memorandum of Costs seeking $440 in costs against Phillips. [PUF 26, 28] Evans as the lead attorney of record, filed the Respondent's Brief which opposed Phillips appeal, and requested the appellate division affirm the trial court judgment in favor of Archstone/Avalonbay and against Phillips. [PUF 33] By these direct and indirect roles Evans is undisputably a debt collector and is consequently liable for violating of the FDCPA, the same as KTS as to those provisions listed above in Sections I.A.-I.F. Ashley Rossetto Liability Defendant Ashley Rossetto ("Rossetto") is an associate attorney at KTS in the landlord-tenant section and handles the law and motion department. [PUF 11] Under the direct superivision of Evans, Rossetto represented Archstone/Avalonbay in the second UD action. [PUF 10, 21] Rossetto verified the complaint under penalty of perjury in the second UD action that the allegations were true and correct and that it had evidentiary support. [PUF 23] Phillips filed a motion to compel in the second UD action which KTS'opposed by their law and motion department which is handled by Rossetto. [PUF 26] KTS' law and motion department, again, handled by Rossetto, filed a motion to tax -15- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 21 of 23 Page ID #:1490 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 costs which was signed by Rossetto on April 22, 2015. [PUF 43] KTS filed a reply, also signed by Rossetto on May 8, 2015, to plaintiff's opposition to their motion to tax costs. [PUF 44] Under any of the previously mentioned standards, the undisputed facts show that Rossetto “regularly collect[ed] or attempt[ed] to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6). Like Evans, by her direct and indirect roles Rossetto is undisputably a debt collector and is consequently liable for violating of the FDCPA, the same as KTS as to those provisions listed above in Sections I.A.-I.F. III. LIABILITY OF DEBT COLLECTOR FCO The first and second causes of action in the second amended complaint seek to hold Fair Collections and Outsourcing of New England, Inc. ("FCO") for violations of the FDCPA and the Rosenthal Act for its debt collection activities against Phillips made on behalf of Archstone/Avalonbay. It is undisputed that Fair Collections and Outsourcing of New England, Inc. ("FCO") is a debt collector within the definitions of Title 15 United States Code, § 1692a. [PUF 12] Archstone/Avalonbay and FCO entered into a written agency agreement which authorized FCO to engage in collection activities on their behalf. [PUF 54] FCO delegated to Archstone/ Avalonbay the responsibility to ensure debt is valid, accurate, [PUF 54] and agreed to indemnify FCO for liability re debt collection. [PUF 54] On May 13, 2014, Archstone/Avalonbay referred the Phillips debt to FCO for collection in the amount of $25,294.28. [PUF 55] Because of the delegation and indemnification clauses, FCO cannot claim lack of knowledge as to the accuracy of the debt. After FCO had been notified that the debt was invalid, it continued with its collection efforts including phone calls, letters, and credit reporting. See, supra, Sect. I.G.- I.I. A January 3, 3014, email in FCO reflects that it was aware that the first UD action had been "dismissed the past due rent," totaling $11,660. [PUF 63] Despite this email, on -16- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 22 of 23 Page ID #:1491 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 May 14, 2014, February 9, 2015, and March 7, 2015, FCO sent those debt collection letter which demanded that he pay up to $31,147.25 [PUF 58-60] Email exchanges between Archstone/Avalonbay and FCO reflect that KTS advised that even though the unlawful detainer judgment in the second UD action had been reversed, that Archstone/ Avalonbay and FCO could "proceed as a non-judgment collection." [PUF 64] Archstone/Avalonbay and FCO have not ceased all collection efforts against Phillips. [PUF 65] G. Telephone Calls to Collect Debt - §§ 1692e(2), 1692f(1) H. Debt Collection Letters - §§ 1692e(2), 1692f(1) I. Debt on Credit Report - §§ 1692e(2) 1692(8), 1692f(1) All of the analyses made in Sect. I.G.-I.I., supra, apply here which renders FCO liable for violations of the FDCPA and Rosenthal Act provisions. CONCLUSION For all of the above reasons the court should grant the motion for party summary judgment in full. Dated: October 27, 2016 LAW OFFICE OF LOUIS P. DELL /s/ Louis P. Dell Louis P. Dell, Esq. Attorney for Plaintiff, CHRISTOPHER PHILLIPS -17- Plaintiff's Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94 Filed 10/27/16 Page 23 of 23 Page ID #:1492 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LOUIS P. DELL, ESQ. (SBN 164830) LAW OFFICE OF LOUIS P. DELL 715 South Victory Blvd. Burbank, CA 91502 (818) 478-2822 (Office) (818) 436-5966 (Fax) e-mail: ldell@louisdell.com Attorney for Plaintiff, CHRISTOPHER PHILLIPS IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CHRISTOPHER PHILLIPS, Plaintiffs, vs. ARCHSTONE SIMI VALLEY LLC, et al., Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) CASE NO. 15-cv-05559-DMG (PLAx) PLAINTIFF CHRISTOPHER PHILLIPS’ SEPARATE STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF HIS MOTION FOR PARTIAL SUMMARY JUDGMENT Date: December 2, 2016 Time: 9:30 a.m. Ctrm: 8C (1st Street) Pretrial Conf.: January 24, 2017 Jury Trial: February 21, 2017 -1- Plaintiff's Separate Statement of Facts Case 2:15-cv-05559-DMG-PLA Document 94-1 Filed 10/27/16 Page 1 of 14 Page ID #:1493 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT AND TO ALL PARTIES OF RECORD: Plaintiff CHRISTOPHER PHILLIPS hereby submits this Separate Statement of Uncontroverted Facts and Conclusions of Law in Support of His Motion for Partial Summary Judgment. Dated: October 27, 2016 LAW OFFICE OF LOUIS P. DELL /s/ Louis P. Dell Louis P. Dell, Esq. Attorney for Plaintiff, CHRISTOPHER PHILLIPS -2- Plaintiff's Separate Statement of Facts Case 2:15-cv-05559-DMG-PLA Document 94-1 Filed 10/27/16 Page 2 of 14 Page ID #:1494 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Uncontroverted Facts Evidence 1. This lawsuit is brought pursuant to the Fair Debt Collection Practices Act (FDCPA) [15 U.S.C. § 1692, et seq.] and the California Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act") [Cal. Civ. Code § 1788, et seq.]. Exh. 1: 2nd Amended Complaint 2. From July 2009 to March 2014, Plaintiff Christopher Phillips ("Phillips") was a tenant and lessee of a residential apartment unit located at 1631 East Jefferson Way, #206, Simi Valley, CA 93065 (hereinafter "the premises"). Exh. 2: Phillips Depo, Vol. 1, 38:8-10, 50:9-51:5 Dell Decl. ¶2 3. Defendant, Archstone Simi Valley LLC, ("Archstone") was a Delaware limited liability company with its principle place of business in Englewood, Colorado. Exh. 3: Jett-Arch-PMQ Depo 11:15-14-2 [exh. 32] Dell Decl. ¶3 4. On or about February 27, 2013, Archstone was converted into AVB Simi Valley LP, a Delaware limited partnership. Exh. 3: Jett-Arch-PMQ 11:15-14-2 [exh. 32] 5. AVB Simi Valley LP, is a Delaware limited partnership and is owned by AVB Simi Valley GP LLC. Exh. 3: Jett-Arch-PMQ 11:15-14-2 [exh. 32] 6. AVB Simi Valley GP LLC is a Delaware limited liability company. This defendant is owned by defendant Avalonbay Communities, Inc. who is its sole member. At all relevant times, AVB Simi Valley GP LLC was an owner and lessor of the premises. Exh. 3: Jett-Arch-PMQ 11:15-14-2 [exh. 32] 7. Defendant Avalonbay Exh. 3: Jett-Arch-PMQ 13:17 to 13:20 -3- Plaintiff's Separate Statement of Facts Case 2:15-cv-05559-DMG-PLA Document 94-1 Filed 10/27/16 Page 3 of 14 Page ID #:1495 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Uncontroverted Facts Evidence Communities, Inc., ("Avalonbay") owns the general partner AVB Simi Valley GP LLC. 8. Defendant Kimball, Tirey & St. John LLP, (“KTS”) is a limited liability partnership, a law firm. Exh. 4: KTS Suppl. Resp. to RFA No. 3 Dell Decl. ¶4 9. KTS is a debt collector within the definition of Title 15, United States Code, § 1692a, and a debt collector within the meaning of Cal. Civil Code § l788.2(b). Exh. 5: KTS Resp. to RFA Nos. 1 & 2 Dell Decl. ¶5 10. Defendant Chris Evans (“Evans”) is the managing partner at KTS as of 2009. Evans supervises associate attorney Ashley Rossetto in the landlord-tenant section. Exh. 6: Evans Depo 6:7-8, 7:6-12 Exh. 7: Rossetto Depo 6:24-7:1 Dell Decl. ¶6,7 11. Defendant Ashley Rossetto (“Rossetto”) is an associate attorney at KTS in the landlord-tenant section and handles the law and motion department. Exh. 7: Rossetto Depo 5:15-16, 6:17- 6:21, 7:5-8 12. Fair Collections and Outsourcing of New England, Inc. (“FCO”) is a debt collector within the definitions of Title 15 United States Code, § 1692a. Exh. 8: FCO Resp. to RFA No. 1 Dell Decl. ¶8 13. On or about July 14, 2012, Phillips entered into a written agreement with the Archstone to rent the premises. Exh. 11: Avalon Doc pg. 201, ¶6 Dell Decl. ¶11 14. On April 19, 2013, Archstone through Avalonbay (hereinafter “Archstone/Avalonbay”) caused an Exh. 11 -4- Plaintiff's Separate Statement of Facts Case 2:15-cv-05559-DMG-PLA Document 94-1 Filed 10/27/16 Page 4 of 14 Page ID #:1496 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Uncontroverted Facts Evidence unlawful detainer action to be filed against Phillips in the case Archstone Simi Valley LLC v. Chris Phillips, Ventura County Superior Court Case no. 56-2013-00435146-CL-UD-SIM (hereinafter "first UD action") 15. KTS, by Evans as attorney of record and lead attorney, represented the Archstone/Avalonbay in the first UD action. Exh. 11 16. The first UD action sought recovery of possession of the premises, past-due rent in the amount of $1,505, attorney fees, forfeiture of the agreement, plus damages in the amount of $50.17 per day from May 1, 2013 for each date Phillips remained in possession. Exh. 11: pg. 203, ¶17 17. A 3-Day Notice to Pay Rent or Quit attached to and incorporated by reference to the complaint in the first UD action alleged that rent was owing and unpaid since April 1, 2013. Exh. 11: pg. 202, ¶7, & pg. 204 18. Judgment on the first UD Action was entered on August 22, 2013 in favor of Phillips. The judgment decrees that Phillips is entitled to possession of the premises, that Archstone receive nothing from Phillips, and that Phillips is awarded costs. Exh. 12: Phillips Doc pg. 305-306 Dell Decl. ¶12 19. On November 27, 2013, Archstone/Avalonbay caused a second unlawful detainer action to be filed against Phillips in the case Archstone Simi Valley LLC v. Chris Phillips, Ventura County Superior Court Case Exh. 13: Avalon Doc pg. 499-505 Dell Decl. ¶13 -5- Plaintiff's Separate Statement of Facts Case 2:15-cv-05559-DMG-PLA Document 94-1 Filed 10/27/16 Page 5 of 14 Page ID #:1497 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Uncontroverted Facts Evidence no. 56-2013-00445273-CL-UD-VTA (hereinafter "second UD action") 20. KTS, by Evans as attorney of record and lead attorney, represented Archstone/Avalonbay in the second UD action. Exh. 13 21. Rossetto, an associate attorney with KTS represented Archstone /Avalonbay in the second UD action. Exh. 13: pg. 503-504 22. KTS policy with respect to making sure that they are not collecting on a debt that is either not owed or not accurate is to review documents that are provided by the client. For example, KTS would review a ledger if it was provided by the client and if that ledger does not match the amount of money demanded in the pay or quit notice, KTS would then place the case on hold and contact the client to clarify one way or the other. Exh. 6: Evans Depo 41:5 to 41:18 23. Rossetto verified the complaint under penalty of perjury in the second UD action that the allegations were true and correct and that it had evidentiary support. Exh. 13: pg. 504 Exh. 7: Rossetto Depo 17:26-18:13 24. The second UD action sought recovery of possession of the premises, past-due rent in the amount of $11,660, attorney fees, forfeiture of the agreement, plus damages in the amount of $62.66 per day from November 1, 2013 for each date Phillips remained in possession. Exh. 13: pg. 503, ¶17 -6- Plaintiff's Separate Statement of Facts Case 2:15-cv-05559-DMG-PLA Document 94-1 Filed 10/27/16 Page 6 of 14 Page ID #:1498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Uncontroverted Facts Evidence 25. A 3-Day Notice to Pay Rent or Quit attached to and incorporated by reference to the complaint in the second UD action alleged that rent was owing and unpaid since April 1, 2013. Exh. 13: pg. 502, ¶7, pg. 505 26. Phillips filed a motion to compel in the second UD action which KTS’ opposed by their law and motion department which is handled by Rossetto. The opposition was signed by Evans. Exh. 14: [mtn. compel] Exh. 15: [opp. mtn. compel] Exh. 6: 35:19 to 36:9 Dell Decl. ¶14,15 27. Judgment on the second UD Action was entered on March 7, 2014 in favor of Archstone as against Phillips, and awarded it possession of the premises, past-due rent of $11,660, holdover damages of $7,080.58 and costs pursuant to a memorandum of costs. Exh. 16 Dell Decl. ¶16 28. KTS, by Evans, filed a Memorandum of Costs seeking $440 in costs against Phillips. Exh. 17 Dell Decl. ¶17 29. Phillips appealed the judgment in the second UD action. Exh. 18 Dell Decl. ¶18 30. On March 12, 2014, KTS prepared Ventura Sheriff Threat Assessment as a preliminary step to request that Phillips be locked out from the premises. Exh. 6: Evans Depo 73:9-74:18 [exh. 36] 31. Avalonbay explained to Phillips that he had no other options to stay and no matter what, he had to move out. Exh 2: Phillips Depo, Vol. 1, 249:21- 250:9 -7- Plaintiff's Separate Statement of Facts Case 2:15-cv-05559-DMG-PLA Document 94-1 Filed 10/27/16 Page 7 of 14 Page ID #:1499 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Uncontroverted Facts Evidence 32. Phillips moved out in March 2014 because he lost the case and that meant the sheriff would to evict him. Exh 2: Phillips Depo, Vol. 1, 38:8-10, 50:9-51:5, 249:17-249:21 33. KTS, by Evans as the lead attorney of record, filed the Respondent’s Brief which opposed Phillips appeal, and requested the appellate division affirm the trial court judgment in favor of Archstone/ Avalonbay and against Phillips. Exh. 19 Dell Decl. ¶19 34. On January 6, 2015, the appellate division of the Ventura County Superior Court filed its Opinion and Judgment reversing the judgment in the second UD action. Exh. 20 Dell Decl. ¶20 35. The Opinion and Judgment held: (1) The first unlawful detainer action ended in a judgment for Phillips and against Archstone on August 26, 2013. Exh. 20: pg. 1752 36. The Opinion and Judgment held: (2) the second unlawful detainer proceeding began with Archstone's service of a three-day notice to pay rent or quit on October 18, 2013. Exh. 20: pg. 1752 37. The Opinion and Judgment held: (3) the only ground alleged in the three-day notice and the unlawful detainer complaint filed on November 27, 2013, for Archstone's entitlement to immediate possession was Phillips's alleged failure to pay rent when due for the months of April through October, 2013. Exh. 20: pg. 1752 38. The Opinion and Judgment held: (4) during this period, Archstone Exh. 20: pg. 1752 -8- Plaintiff's Separate Statement of Facts Case 2:15-cv-05559-DMG-PLA Document 94-1 Filed 10/27/16 Page 8 of 14 Page ID #:1500 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Uncontroverted Facts Evidence offered and Phillips accepted renewal of the lease. 39. The Opinion and Judgment held: (5) Phillips tendered rent for each of the months during this period, but Archstone rejected the tenders because the matter was "in litigation" (presumably referring to the first unlawful detainer action which ended in August, 2013, with a judgment against Archstone and for Phillips). Exh. 20: pg. 1752 40. The Opinion and Judgment held that the undisputed evidence of Phillips' tender of rent when due defeated Archstone's right to a judgment of immediate possession. These undisputed facts are fatal to the unlawful detainer judgment. Exh. 20: pg. 1752 41. The Opinion and Judgment held that there is no "in litigation" exception to the rule that the landlord must accept timely tender of rent payments when due. Archstone could not rely upon an unsuccessful unlawful detainer action as an excuse or justification for denying Phillips's timely tender of rent payments and then assert non-payment of rent as the basis for a later unlawful detainer action. Exh. 20: pg. 1752 42. The appellate division reversed and vacated the judgment in the second UD action in its entirety and entered judgment in favor of Phillips and against Archstone. A remittitur issued. Exh. 20: pg. 1753 Exh. 21 [remittitur] Dell Decl. ¶21 43. KTS’ law and motion department, handled by Rossetto, filed Exh. 22 Exh. 7: Rossetto Depo 19:6-25 -9- Plaintiff's Separate Statement of Facts Case 2:15-cv-05559-DMG-PLA Document 94-1 Filed 10/27/16 Page 9 of 14 Page ID #:1501 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Uncontroverted Facts Evidence a motion to tax costs which was signed by Rossetto on April 22, 2015. Dell Decl. ¶22 44. KTS filed a reply, also signed by Rossetto on May 8, 2015, to plaintiff’s opposition to their motion to tax costs. Exh. 23 Dell Decl. ¶23 45. Final judgment on the second UD Action was entered on May 27, 2015, in favor of Phillips, adjudging that Archstone receive nothing from Phillips, and that Phillips is awarded costs. Exh. 24 Dell Decl. ¶24 46. On or about October 18, 2013, the Archstone/Avalonbay and KTS caused a 3-Day Notice to Pay Rent or Quit ("3-Day notice") to be posted on Phillips' door and mailed to him. The notice stated that rent had not been paid since April 1, 2013 through October 1, 2013 for a total of $11,660 in past-due rent. Exh. 13: pg. 502, ¶7, and pg. 505 [3-Day Notice] 47. The 3-day notice was an initial communication concerning the allege debt and which did not contain a validation notice as required by 15 U.S.C. § 1692g(a)(2)-(5) Exh. 13: pg. 505 48. The 3-Day Notice threatened to commence, and did commence, legal proceedings against Phillips to evict him from the premises, forfeit the lease, recover unpaid rent, damages, attorney fees and court costs, unless Phillips paid $11,660 in past-due rent which he did not owe. Exh. 13: p. 505 49. The 3-Day Notice did not advise Phillips that Archstone/Avalonbay was Exh. 13 -10- Plaintiff's Separate Statement of Facts Case 2:15-cv-05559-DMG-PLA Document 94-1 Filed 10/27/16 Page 10 of 14 Page ID #:1502 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Uncontroverted Facts Evidence attempting to collect a debt and that any the information will be used for that purpose. 50. The 3-Day Notice sought attorney fees which were not authorized by law or by the lease. Exh. 13: pg. 505 Exh. 25: Jett-AVB-PMQ Depo 87:4-18 Exh. 6: Evans Depo 45:8-50:25 Dell Decl. ¶25 51. On November 27, Archstone/ Avalonbay filed the second UD action for nonpayment of rent against Phillips seeking the rent for the same period of time covered in the first UD action. Exh. 15: pg. 778, ¶4 52. From the service of the 3-Day Notice on October 18, 2013 and continuing at least until judgment was entered on May 27, 2015, Archstone/ Avalonbay used the second UD action to attempt to collect past-due rent in the amount of $11,660 which included rent for the same period of time covered in the first UD action. Exh. 13: pg. 505 53. In the discovery phase of the second UD action, KTS, by Evans as the lead attorney of record, served on Phillips a ledger which sought $50/month late fees for past-due rent, and attorney fees in the amount of $590 all related to the first UD action in which Phillips was the prevailing party. Exh. 26: pg. 528-530 [ledger] Exh. 27: pg. 577-579 [ledger] Dell Decl. ¶26,27 54. Archstone/Avalonbay and FCO entered into a written agency agreement which authorized FCO to engage in collection activities on their behalf. FCO delegateed to Archstone/ Avalonbay the responsibility to ensure Exh. 9: Sobota Depo 10:12-12:2 Exh. 10 FCO Docs pg. 282-297 [collection service agreement at pg. 291 refers to FCO’s delegation of validity of debt] -11- Plaintiff's Separate Statement of Facts Case 2:15-cv-05559-DMG-PLA Document 94-1 Filed 10/27/16 Page 11 of 14 Page ID #:1503 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Uncontroverted Facts Evidence debt is valid, accurate. Archstone/ Avalonbay agrees to indemnify FCO for liability re debt collection. Dell Decl. ¶9,10 55. On May 13, 2014, Archstone/Avalonbay referred the Phillips debt to FCO for collection in the amount of $25,294.28. Exh. 9: FCO Docs pg. 45 Exh. 10: Sobota Depo 23:13 to 23:17 [assignment date] Exh. 10: Sobota Depo 18:23-19:24 [amount assigned] 56. FCO contacted Phillips by phone and letter on numerous occasions and demanded that he pay a debt in the amounts of $15,176.57 up to $31,147.25. Exh. 9: FCO Docs pg. 45-55 Exh. 10: Sobota Depo 31:1 to 31:24 57. FCO made daily calls to Phillips friends, work, and family for the purpose of collection the debt. Exh. 9 pg. 46 - 55 Exh. 10: Sobota Depo 31:1 to 31:24, 33:17 to 33:19 58. On May 14, 2014, FCO sent Phillips a debt collection letter which demanded that he pay $31,147.25 which was an amount supplied by Archstone/Avalonbay. The letter stated that the account has been reported on the national credit reporting bureaus: Equifax Credit Information Services, Trans-Union Credit Information Services or Experian. Exh. 9, FCO Doc pg. 43 Exh. 10: Sobota Depo 18:3 to 18:22 59. On February 9, 2015, FCO sent Phillips a debt collection letter which demanded that he pay $25,294.28. The letter contained a breakdown of charges which reflected that $31,147.25 was owed, and which included utilities, back-rent, late charges, legal costs/evictions, damage receipts, and accelerated rent. The letter stated that the account has been reported on the national credit Exh. 9: FCO Doc pg. 63-72 Exh. 10: Sobota Depo 50:15-52:12 -12- Plaintiff's Separate Statement of Facts Case 2:15-cv-05559-DMG-PLA Document 94-1 Filed 10/27/16 Page 12 of 14 Page ID #:1504 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Uncontroverted Facts Evidence reporting bureaus: Equifax Credit Information Services, Trans-Union Credit Information Services or Experian. 60. On March 7, 2015, FCO sent Phillips a debt collection letter which demanded that he pay $15,176.57 which was 40% off of the $25,294.28. The letter stated that the account has been reported on the national credit reporting bureaus: Equifax Credit Information Services, Trans-Union Credit Information Services or Experian. Exh. 9: FCO Doc pg. 41 Exh. 10: Sobota Depo 15:21-16-6 61. FCO did not delete the collection account on Phillips’ TransUnion, TRW and Equifax credit file until May 19th, 2015. Exh. 9 p. 45 Exh. 10: Sobota Depo 20:10-20:13 62. Even though Phillips disputed the debt by opposing the UD actions at all stages, FCO never informed the credit reporting agencies that the debt was disputed. Exh. 10: Sobota Depo 56:15-56:24 63. A January 3, 3014, email in FCO reflects that it was aware that the first UD action had been “dismissed the past due rent,” totaling $11,660. Exh. 9: FCO Docs 167 Exh. 10: Sobota Depo 74:1-4 64. On January 24, 2015, Archstone/ Avalonbay emailed FCO reflect that KTS advised that even though the unlawful detainer judgment in the second UD action had been reversed, that Archstone/ Avalonbay and FCO could "proceed as a non-judgment collection." Exh. 9: FCO Docs 272 Exh. 10: Sobota Depo 39:13-40:2 -13- Plaintiff's Separate Statement of Facts Case 2:15-cv-05559-DMG-PLA Document 94-1 Filed 10/27/16 Page 13 of 14 Page ID #:1505 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Uncontroverted Facts Evidence 65. Archstone/Avalonbay and FCO have not ceased all collection efforts against Phillips. Exh. 10: Sobota Depo 69:3-70:2, 79:13 to 79:19 -14- Plaintiff's Separate Statement of Facts Case 2:15-cv-05559-DMG-PLA Document 94-1 Filed 10/27/16 Page 14 of 14 Page ID #:1506 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CHRISTOPHER PHILLIPS, Plaintiffs, vs. ARCHSTONE SIMI VALLEY LLC, et al., Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) CASE NO. 15-cv-05559-DMG (PLAx) [PROPOSED] ORDER GRANTING PLAINTIFF CHRISTOPHER PHILLIPS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff CHRISTOPHER PHILLIPS’ motion for partial summary judgment came on regularly for determination [with/without] a hearing. Upon consideration of the moving papers, opposing papers, reply papers, and objections, if any, the Court rules: -1- Order Granting Plaintiff Christopher Phillips' Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94-2 Filed 10/27/16 Page 1 of 5 Page ID #:1507 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Archstone Simi Valley LLC and Avalonbay Communities, Inc. Second Cause of Action - Liability under California Rosenthal Act 1. The court finds that Defendants Archstone Simi Valley LLC and Avalonbay Communities, Inc. are debt collectors and were attempting to collect a debt involving a consumer credit transaction under the California Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act") [Cal. Civ. Code § 1788, et seq.]. The Rosenthal Act requires debt collectors attempting to collect debts in California to comply with the Fair Debt Collection Practices Act, specifically 15 U.S.C. §§ 1692b through 1692j. Cal. Civ. Code § 1788.17. 2. Defendant Archstone Simi Valley LLC and Defendant Avalonbay Communities, Inc.’s prosecution of the unlawful detainer action, Archstone Simi Valley LLC v. Chris Phillips, Ventura County Superior Court Case no. 56-2013-00445273-CL-UD-VTA was a legal action which could not be taken and in violation of 15 U.S.C. § 1692e(5). The Three-Day Notice to Pay Rent or Quit, dated October 18, 2013, did not contain a validation notice or notification that it was an attempt to collect a debt and therefore violated 15 U.S.C. §§ 1692g(a)(2)-(5), 1692e(11). The Complaint and the Three-Day Notice to Pay Rent or Quit demanded and threatened to collect attorney fees when none were authorized by law or a lease and therefore violated 15 U.S.C. §§ 1692e(2), 1692e(5), 1692f(1). The Complaint and the Three-Day Notice to Pay Rent or Quit demanded and threatened to collect past-due rent for a period of time which had previously been adjudicated was not owed and 15 U.S.C. §§ 1692e(2), 1692e(5), 1692f(1). During the unlawful proceedings, these defendants served a ledger on Phillips which sought rent, attorney fees, late fees, and other charges which were inaccurate or not permitted which violated 15 U.S.C. §§ 1692e(2), 1692e(5), 1692f(1). These defendants hired a debt collector to make phone calls and send letters to Phillips to attempt to collect a debt which was not due which violated 15 U.S.C. §§ 1692e(2), 1692f(1). On behalf of these defendants the debt collector reported an inaccurate debt -2- Order Granting Plaintiff Christopher Phillips' Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94-2 Filed 10/27/16 Page 2 of 5 Page ID #:1508 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on Phillips’ credit reports which violated 15 U.S.C. §§ 1692e(2) 1692(8), 1692f(1). 3. The Court finds that Defendants Archstone Simi Valley LLC and Avalonbay Communities, Inc. are jointly and severally liable to Plaintiff Christopher Phillips for for damages, attorney fees, and costs under the Rosenthal Act, Cal. Civ. Code § 1788.30(a)-(c). The amount of damages owing to the plaintiff shall be determined at the trial by jury. Kimball, Tirey & St. John LLP, ("KTS"), Chris Evans, and Ashley Rossetto First Cause of Action - Liability Under Fair Debt Collection Practices Act 4. The court finds that Defendants KTS, Chris Evans, and Ashley Rossetto’s are each a “debt collector" as defined by 15 U.S.C. § 1692a(6) and each were attempting to collect a debt on behalf of Archstone Simi Valley LLC and Avalonbay Communities, Inc. 5. Defendant KTS, Chris Evans, and Ashley Rossetto’s prosecution of the unlawful detainer action, Archstone Simi Valley LLC v. Chris Phillips, Ventura County Superior Court Case no. 56-2013-00445273-CL-UD-VTA was a legal action which could not be taken and in violation of 15 U.S.C. § 1692e(5). The Three-Day Notice to Pay Rent or Quit, dated October 18, 2013, did not contain a validation notice or notification that it was an attempt to collect a debt and therefore violated 15 U.S.C. §§ 1692g(a)(2)-(5), 1692e(11). The Complaint and the Three-Day Notice to Pay Rent or Quit demanded and threatened to collect attorney fees when none were authorized by law or a lease and therefore violated 15 U.S.C. §§ 1692e(2), 1692e(5), 1692f(1). The Complaint and the Three-Day Notice to Pay Rent or Quit demanded and threatened to collect past-due rent for a period of time which had previously been adjudicated was not owed and 15 U.S.C. §§ 1692e(2), 1692e(5), 1692f(1). During the unlawful proceedings, these defendants served a ledger on Phillips which sought rent, attorney fees, late fees, and other charges which were inaccurate or not permitted which violated 15 U.S.C. §§ 1692e(2), 1692e(5), 1692f(1). These defendants hired a debt collector to make phone calls and send letters -3- Order Granting Plaintiff Christopher Phillips' Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94-2 Filed 10/27/16 Page 3 of 5 Page ID #:1509 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to Phillips to attempt to collect a debt which was not due which violated 15 U.S.C. §§ 1692e(2), 1692f(1). On behalf of these defendants the debt collector reported an inaccurate debt on Phillips’ credit reports which violated 15 U.S.C. §§ 1692e(2) 1692(8), 1692f(1). 6. The Court finds that Defendants KTS, Chris Evans, and Ashley Rossetto's are jointly and severally liable to Plaintiff Christopher Phillips for for damages, attorney fees, and costs under the FDCPA, 15 U.S.C. § 1692k. The amount of damages owing to the plaintiff shall be determined at the trial by jury. Fair Collections and Outsourcing of New England, Inc. ("FCO") First and Second Causes of Action - Liability Under Fair Debt Collection Practices Act and California Rosenthal Act 7. The Court finds that Defendant FCO is a debt collector and were attempting to collect a debt involving a consumer credit transaction under the California Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act") [Cal. Civ. Code § 1788, et seq.]. The Rosenthal Act requires debt collectors attempting to collect debts in California to comply with the Fair Debt Collection Practices Act, specifically 15 U.S.C. §§ 1692b through 1692j. Cal. Civ. Code § 1788.17. The Court further finds that FCO is a “debt collector" as as defined by 15 U.S.C. § 1692a(6) and was attempting to collect a debt on behalf of Archstone Simi Valley LLC and Avalonbay Communities, Inc. 2. Defendant FCO made phone calls and sent letters to Phillips to attempt to collect a debt which was not due which violated 15 U.S.C. §§ 1692e(2), 1692f(1). FCO reported an inaccurate debt on Phillips’ credit reports which violated 15 U.S.C. §§ 1692e(2) 1692(8), 1692f(1). 3. The Court finds that Defendant FCO is liable to Plaintiff Christopher Phillips for for damages, attorney fees, and costs under the FDCPA, 15 U.S.C. § 1692k, and under the Rosenthal Act, Cal. Civ. Code § 1788.30(a)-(c). The amount of damages owing to -4- Order Granting Plaintiff Christopher Phillips' Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94-2 Filed 10/27/16 Page 4 of 5 Page ID #:1510 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the plaintiff shall be determined at the trial by jury. IT IS SO ORDERED: Dated: _______________ Honorable Dolly M. Gee U.S. District Court Judge -5- Order Granting Plaintiff Christopher Phillips' Motion for Partial Summary Judgment Case 2:15-cv-05559-DMG-PLA Document 94-2 Filed 10/27/16 Page 5 of 5 Page ID #:1511