Opinion
No. C 14–00159 PJH
2014-04-29
Stevin Masuda, Plaintiff, v. Citibank, N.A., Defendant.
Balam Osberto Letona, Law Office of Balam O. Letona, Inc., Santa Cruz, CA, for Plaintiff.Arjun P. Rao, Stroock & Stroock & Lavan LLP, Marcos D. Sasso, Attorney at Law, Los Angeles, CA, for Defendant.
Motion denied.
Balam Osberto Letona, Law Office of Balam O. Letona, Inc., Santa Cruz, CA, for Plaintiff. Arjun P. Rao, Stroock & Stroock & Lavan LLP, Marcos D. Sasso, Attorney at Law, Los Angeles, CA, for Defendant.
ORDER DENYING MOTION TO DISMISS AND VACATING HEARING
PHYLLIS J. HAMILTON, United States District Judge
Before the court is the motion of defendant Citibank, N.A. (“Citibank”) for an order dismissing the first and third causes of action alleged in the first amended complaint (“FAC”). Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby DENIES the motion as follows.
Second, Citibank argues that Masuda's claim for relief under the Rosenthal Act fails because Masuda has not pled facts showing that Citibank is a “debt collector.” The Rosenthal Act defines “debt collector” as “any person who, in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection.” Cal. Civ.Code § 1788.2(c) (emphasis added). The definition of “debt collector” under the Rosenthal Act is thus broader and more inclusive than under the FDCPA because it allows for those collecting debts on their own behalf to be considered “debt collectors.” See Moya v. Chase Cardmember Serv., 661 F.Supp.2d 1129, 1132 (N.D.Cal.2009).
“The term ‘debt collection’ means any act or practice in connection with the collection of consumer debts.” Cal. Civ.Code § 1788.2(b).
Here, Citibank qualifies as a debt collector under the Rosenthal Act because it attempted to collect a credit card debt on its own behalf. These efforts included calling Masuda for months even after he contacted Citibank to confirm he was not its customer or debtor and requested that the calls stop. Therefore, Masuda has stated a claim against Citibank under the Rosenthal Act because he has stated facts showing that he fits within the statute's definition of “debtor” and that Citibank fits within the statute's definition of “debt collector.” 2. Intrusion upon Seclusion Claim
Citibank argues that Masuda fails to plead sufficient facts to support a claim for intrusion upon seclusion. An action for invasion of privacy by intrusion upon seclusion has two elements: (1) an intrusion into a private place, conversation, or matter, (2) in a manner highly offensive to a reasonable person. Taus v. Loftus, 40 Cal.4th 683, 725, 54 Cal.Rptr.3d 775, 151 P.3d 1185 (2007). Courts have held that repeated and continuous calls made in an attempt to collect a debt may give rise to a claim of intrusion upon seclusion. In Fausto v. Credigy Servs. Corp., 598 F.Supp.2d 1049 (N.D.Cal.2009), the court found that the plaintiffs had raised triable issues as to an invasion of privacy claim, based on allegations that the debt collector's employees had made more than 90 calls to the debtors' home; that the content of the calls had been harassing; and that the employees had failed to identify themselves when calling, and had allowed the phone to ring repeatedly and called back immediately after the debtors hung up the phone. Id. at 1056. In Joseph v. J.J. Mac Intyre Companies, 281 F.Supp.2d 1156 (N.D.Cal.2003), the court held that there were triable issues of fact as to whether the plaintiff's privacy was invaded where the debt collector called the plaintiff over 200 times in the course of 19 months seeking to collect on a hospital debt. Id. at 1159.
Here, Masuda alleges that Citibank called him over 300 times. This includes calls nearly every day from April to November 2013, including many days with multiple calls (up to six per day). Although Masuda does not allege that the content of the calls was offensive, the context of the constant calls viewed in light of the multiple requests that the calls stop (and confirmation from Citibank that they would stop) and the fact that the calls were to a person confirmed to not be Citibank's debtor, could be found by a reasonable jury to be highly offensive. In conclusion, Masuda has pled sufficient facts to state a claim for invasion of privacy by intrusion upon seclusion; he is not required to prove the allegation at this juncture.
CONCLUSION
In accordance with the foregoing, the motion to dismiss is DENIED. The May 7, 2014, hearing date is VACATED.
IT IS SO ORDERED.