Opinion
G037170
5-10-2007
RIMA JONES, Plaintiff and Appellant, v. HERTZ CORPORATION, Defendant and Respondent.
Rima Jones, in pro. per., for Plaintiff and Appellant. Ford, Walker, Haggerty & Behar, Joseph A. Heath and Aparajito Sen for Defendant and Respondent.
NOT TO BE PUBLISHED
Plaintiff Rima Jones appeals after the trial court sustained defendant Hertz Corporations demurrer to her first amended complaint without leave to amend. Plaintiff contends she has properly alleged a cause of action concerning Hertzs improper actions to collect a debt. Finding no basis to disturb the judgment, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
Joness opening brief largely tracks her operative first amended complaint, filed in propria persona, which is admittedly difficult to decipher. Jones alleges Hertzs business consists of "car rental, credit terms, loan practices, and other financing activities, including but not limited to collection practices." Viking Collection Service, Inc., a Minnesota corporation, is a collection agency retained by Hertz. Each of the defendants "were at all times mentioned . . . the agents servants and/or employees of each of the remaining defendant and in doing the things alleged herein, were acting within the course and scope of their authority and acted with knowledge consent and permission of the other defendant and each of them."
Viking had not been served with the complaint at the time of the demurrer and is not party to this appeal.
According to the complaint, a dispute arose concerning an incident occurring on January 25, 2002. Joness attorney reached a settlement agreement with Hertz, which relieved Jones "from all responsibility to" Hertz. Jones attached to the complaint a release (the Release) dated in December 2002, apparently signed by a Hertz employee. Although the Release by its terms releases only two individuals, a Kenneth Cheung and a Tony Yee, plaintiff asserts the release relieved her of all responsibility to Hertz. Plaintiff further alleged Hertz knew she was extremely ill and had no income or earning capacity, yet it wrongfully attempted to collect "unauthorized money" by improper means. She alleges "[i]ncoming telephone calls from Hertz . . . and any and all of their affiliated collection services including but not limited to Viking were continuous, at odd hours, repetitious prior to 2005, disruptive and totally false and untrue." The complaint cites a variety of legal theories and potpourri of state and federal statutes concerning debt collection.
The trial court gave Jones one stab at amendment but ultimately sustained Hertzs demurrer without leave to amend: "The [exhibits attached to the complaint] contradict the allegations of the 1st Amended complaint, and Plaintiff has not alleged sufficient facts that she obtained any release of liability from Hertz or facts to show that the debt defendants seek to collect is illegitimate. Plaintiff alleges a laundry list of statutory violations, improperly combining them [in a] single cause of action and in some instances not identifying either the particular statute or the specific provision of the statute allegedly violated, and fails to allege specific facts supporting violations of the statutes. The complaint is largely unintelligible." This appeal followed.
Although Jones purports to appeal from a judgment, neither the appellate record nor the superior court file contains a judgment entered as a result of the courts order sustaining the demurrer without leave to amend. Rather than dismiss the appeal as premature, we deem the order sustaining the demurrer without leave to amend as incorporating a judgment of dismissal and treat appellants notice of appeal as applying to that dismissal. (Hinman v. Department of Personnel Admin. (1985) 167 Cal.App.3d 516, 520; Munoz v. Davis (1983) 141 Cal.App.3d 420, 431; California State Employees Assn. v. State of California (1973) 32 Cal.App.3d 103, 106, fn. 1.)
II
DISCUSSION
A. Standard of Review
"On review of an order sustaining a demurrer without leave to amend, our standard of review is de novo, `i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. [Citation.]" (Santa Teresa Citizen Action Group v. State Energy Resources Conservation & Development Com. (2003) 105 Cal.App.4th 1441, 1445.) "`"We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed." [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context . . . ." (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
B. Uncertainty
Hertz argues the complaint is uncertain (Code Civ. Proc., § 430.10, subd. (f) ["`uncertain" includes "ambiguous and unintelligible" allegations]) and "[p]erhaps aside from the first cause of action for fraud," does "not set forth any conceivable theory of liability which [it] can defend [itself] against." Uncertainty covers any defective statement leaving the cause of action or any part of it unclear. Ambiguity is narrower, available when the complaint is doubtful in meaning. (See Crow v. Hildreth (1870) 39 Cal. 618.) If, despite some uncertainty, the allegations are "easy of comprehension and free from reasonable doubt as to their meaning," a demurrer for ambiguity will not lie. (Kraner v. Halsey (1889) 82 Cal. 209, 213; Jones v. Iverson (1900) 131 Cal. 101, 104.) A complaint is unintelligible when it is incomprehensible. (See e.g., Craig v. City of Los Angeles (1941) 44 Cal.App.2d 71; Evarts v. Jones (1951) 104 Cal.App.2d 109, 111.) Even though a complaint is in some respects uncertain, courts may overrule the demurrer if the allegations, liberally construed, are sufficient to apprise the defendant of the issues raised. (Skopp v. Weaver (1976) 16 Cal.3d 432, 441.)
Although the trial court mentioned the complaint was "largely unintelligible," it apparently did not sustain the demurrer on the ground of uncertainty. In any event, it is reasonably clear that plaintiff alleges Hertz is using improper means to collect a debt she does not owe. The question is whether the facts she alleges support a legal theory of relief. We tackle those issues below.
Hertz insists the Release "itself shows that [plaintiff] is not a party to [it]. [It] does not relieve [plaintiff] of any obligation or liability to H[ertz] . . . . The Trial Court correctly noted that [plaintiff] has not alleged facts that she obtained any release of liability from H[ertz], nor has [she] alleged facts that the debt H[ertz] seeks to collect is illegitimate." But the Release does not by its terms establish any debt owed to Hertz by Jones, nor does it purport to bar Jones from making a claim arising from improper debt collection efforts. It may be that Jones is among the class of "successors, affiliates and assigns, . . . associates, heirs, executors and administrators" that Hertz discharged in the release, or that others (not Jones) were responsible for Hertzs loss and the Release identifies those individuals. It is clear enough from reading the complaint that Jones is alleging she hired a lawyer and settled her differences with Hertz, and now Hertz is trying to collect some $7,000 she does not owe. We do not believe the Release is fatally inconsistent with those allegations and therefore reject Hertzs claim the allegations are fatally uncertain.
C. Fraud
Under the heading of a first cause of action "IN VIOLATION OF PUBLIC LAW AND COMMON LAW FRAUD AND DECEPTION," Jones alleges Hertz furnished "FRAUDULENT AND DECEPTIVE FORMS" to Viking that induced Viking to initiate its collection efforts against her.
As defendant notes, fraud has a heightened pleading standard. Jones has not met her burden of pleading common law fraud with specificity. She failed to describe the nature of Hertzs misrepresentations and whether Hertz made the misrepresentations to her or Viking. She seems to impute fraud to Hertz because Viking phoned her to collect a debt she does not owe (i.e., Hertz must have supplied Viking with some representation that she owed it money). But she has not adequately alleged the "`how, when, where, to whom, and by what means the representations were tendered." (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) She also does not allege Hertz made the false representation with the intent to defraud. She also asserts Hertz misrepresented the validity of the release form to her and her attorney, but does not explain what that misrepresentation was or how she justifiably relied on it to her detriment. In sum, Jones has not sufficiently stated a cause of action for common law fraud.
D. Fair Debt Collection Practices Act
Contained under the fraud heading, Jones alleges Hertz violated the federal Fair Debt Collection Practices Act (15 U.S.C. § 1601 et seq.), designed to prohibit abusive practices by debt collectors. One section (15 U.S.C. § 1692(j)) provides that "(a) It is unlawful to design, compile, and furnish any form knowing that such form would be used to create the false belief in a consumer that a person other than the creditor of such consumer is participating in the collection of or in an attempt to collect a debt such consumer allegedly owes such creditor, when in fact such person is not so participating. (b) Any person who violates this section shall be liable to the same extent and in the same manner as a debt collector is liable under section 1692k of this title for failure to comply with a provision of this subchapter." This provision prohibits a creditor from falsely creating the impression that a third party is involved in debt collection and is intended to prevent the abusive practice known as "flat-rating," which occurs when dunning letters are sold to creditors bearing the letterhead of the flat-raters collection agency and extorting the debtor to pay the creditor at once. (Orenbuch v. North Shore Health Systems, Inc. (E.D.N.Y. 2003) 250 F.Supp.2d 145.)
Jones does not allege how she was provided with any form that was produced or used to create a false belief by her that a person other than Hertz was participating in the collection of a debt she allegedly owed Hertz. Jones does not allege Viking is a flat rater or that it was not assisting Hertz to collect the debt. The apparent dunning letter from Viking, which plaintiff attaches as exhibit B to her complaint, clearly references the creditor as "Hertz Corporation . . . ." We perceive no cause of action arising under these provisions.
E. Title15 United States Code sections 1640 and 1641
Joness complaint briefly mentions these sections. Title 15 United States Code section 1631 et seq. require a creditor or lessor to disclose to a consumer specified information in a lease or a consumer credit transaction. Sections 1640 and 1641 provide for remedies for disclosure violations. Jones does not allege any conduct that would violate these sections.
F. Civil Code section 1788 et seq.
The Robbins-Rosenthal Fair Debt Collection Practices Act (RFDCPA) prohibits unfair or deceptive acts or practices in the collection of consumer debts, and provides for recovery of actual damages for violations and penalties for willful violations. (Civ. Code, § 1788 et seq.; see also 15 U.S.C., § 1692n [Fair Debt Collection Practices Act preempts state collection acts to the extent they are inconsistent but no inconsistency if a state act affords greater consumer protection than that provided by the federal act].)
Jones alleges a violation of RFDCPA occurred when she received an "annoying" phone call on January 23, 2005. According to Jones, "the caller . . . abruptly said, `You owe us over $7,000.00; when are you going to pay us; if you do not pay us within 30 days, we will report your delinquency." Plaintiff also alleged, "Incoming telephone calls from Hertz . . . were continuous, at odd hours, repetitious prior to 2005, disruptive and totally false and untrue," and that Hertz knew she was "extremely ill in mind and body and disability."
Civil Code section 1788.11 provides, "No debt collector shall collect or attempt to collect a consumer debt by means of the following practices . . . (e) Communicating, by telephone or in person, with the debtor with such frequency as to be unreasonable and to constitute an harassment to the debtor under the circumstances."
A single "annoying" phone call is not harassment, and Joness allegation concerning pre-2005 telephone calls is insufficiently detailed to support a conclusion defendant engaged in frequent and unreasonable communication with plaintiff. The court gave Jones a chance to amend, but she failed to provide more detail. The court properly sustained the demurrer as to the RFDCPA cause of action.
G. Title 15 United States Code section 1692 et seq.
Jones also cites title 15 United States Code section 1692, which as noted above is part of the Fair Debt Collection Practices Act. Like its California counterpart, it prohibits debt collectors from engaging in specified abusive practices. Section 1692c (a)(1) prohibits, among other things, communication with a consumer in connection with the collection of any debt "at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. . . ."
The same section also provides that if a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer, except to advise the consumer that the debt collector would comply with the consumers request and to notify the consumer that the debt collector or creditor would invoke specified statutory remedies. (15 U.S.C. § 1692c(c).)
Section 1692d provides "[a] debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: [¶] (1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person. [¶] (2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader. [¶] (3) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of section 1681a(f) or 1681b(3) of this title. [¶] (4) The advertisement for sale of any debt to coerce payment of the debt. [¶] (5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number. [¶] (6) Except as provided in section 1692b of this title, the placement of telephone calls without meaningful disclosure of the callers identity."
Section 1692e states 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 . . . ."
Jones did not allege she informed Hertz in writing that she refused to pay or that she wished it to cease further communication with her. As we noted above in reference to the RFDCPA, a single "annoying" phone call is not harassment, and Joness allegation concerning pre-2005 telephone calls is insufficiently detailed to state a viable cause of action under the statute. We also note that notwithstanding the alleged falsity of Hertzs representations, it is clear Jones has not been deceived concerning the debt. The court properly sustained the demurrer as to any cause of action under section 1692 et seq.
Jones references this section as Code of Civil Procedure section 3345. We agree with Hertz the section does not create a separate cause of action; rather, it stiffens remedies (up to three times the normal fine, penalty or other remedy) available "in actions brought by, on behalf of, or for the benefit of senior citizens or disabled persons . . . to redress unfair or deceptive acts or practices or unfair methods of competition." (Civ. Code, § 3345, subd. (a).) Consequently, Jones failed to state a viable cause of action.
I. Rico Act and Other Legal Theories
We also agree with Hertz that plaintiff has not stated a cause of action under the federal Racketeer Influenced and Corrupt Organizations (RICO) Act (18 U.S.C. § 1961) because she has failed to allege facts supporting a "pattern" of "racketeering activity," e.g., she does not allege sufficient facts to back up her claims of mail or wire fraud or extortion. (See 18 U.S.C. § 1961.) She alleges a conspiracy between Hertz and Viking to conceal facts about the existence of a warranty (i.e., the Release) and "their intent to pursue in efforts to collect a[n] unlawful debt from plaintiff, ill and forgetful of their warranty" and "failure to honor their `warranty aka [the] Release Agreement and carrying out their illegal activities in attempting to collect on and embezzle unauthorized money . . . ." Considering the factual allegations of the complaint as a whole, the activity Jones alleges does not state a cause of action for a RICO violation. Congress did not intend to convert every garden-variety debt collection claim into a RICO action. Threatening to report a debtor as delinquent or sending a "bargain" letter is not extortion or obstruction of justice.
IV
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
We concur:
RYLAARSDAM, Acting P. J.
IKOLA, J.