Opinion
18-CV-09376
February 1, 2019, Decided. February 1, 2019, Filed
COUNSEL FOR PLAINTIFF(S): Not Present.
COUNSEL FOR DEFENDANT(S): Not Present.
CIVIL MINUTES - GENERAL
PROCEEDINGS (in chambers): ORDER DENYING DEFENDANT'S MOTION TO DISMISS COMPLAINT [Docket No. 14]
This matter is before the Court on Defendant Loancare LLC's ("Defendant") Notice and Motion to Dismiss ("Motion") Plaintiff's Complaint, filed December 5, 2018. Plaintiff Andrea S. Sanders ("Plaintiff") filed a Memorandum in Opposition ("Opposition") on January 7, 2019. Defendant filed a Reply ("Reply") on January 14, 2019. The Court found this matter suitable for disposition without oral argument and vacated the hearing set for January 28, 2019. See Fed. R. Civ. P. 78(b). For the reasons discussed below, the motion is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
In Plaintiff's Complaint, she alleges the following. Plaintiff is an individual residing in Los Angeles, California. (Compl. ¶ 9, ECF No. 1-1.) Since 2009, she has been the borrower on a residential mortgage loan secured by her home. (Compl. ¶¶ 6, 16.) The lender on Plaintiff's loan is CIT Bank, N.A. ("CIT"), which holds a beneficial interest in Plaintiff's home under a deed of trust. (Compl. ¶ 16.) The deed of trust, along with a promissory note, confers on CIT the right to collect payments on the mortgage. (Compl. ¶ 17.) The promissory note also grants Plaintiff a 15-day grace period after the due date for each payment, during which time she can make payments without being penalized by late fees. (Compl. ¶ 17.) Under this arrangement, Plaintiff "dutifully made payments [to CIT] on the last day of the grace period each month without consequence." (Compl. ¶ 6.)
In February 2018, Plaintiff received a Notice of Service Transfer ("Notice") stating that LoanCare LLC ("Defendant") would begin collecting payments on behalf of CIT. (Compl. ¶ 21.) The Notice provided instructions for making payments, and included information about "Special Request Fees," such as $5.00 fees for online payments made during the first ten days of the grace period, and $10.00 fees for online payments made during the last five days of the grace period. (Compl. ¶¶ 21-22.) In March 2018, CIT assigned Defendant the servicing rights to Plaintiff's loan, and notified Plaintiff that it would not accept any future payments. (Compl. ¶ 6.) On or about April 16, 2018, "the last date of the grace period for March," Plaintiff made an online payment to Defendant and was assessed a $10.00 fee. (Compl. ¶ 22.) On April 22, 2018, Plaintiff contacted Defendant and "demanded to know what provision of the loan documentation authorized [Defendant] to charge the Special Request Fees," but received only "an auto-generated response thanking her for contacting [Defendant]." (Compl. ¶ 22.) On May 16, 2018, Plaintiff was again charged a $10.00 fee while making her online payment. (Compl. ¶ 23.) Plaintiff again objected in writing, and at some point afterwards, Defendant waived the $10.00 charges for Plaintiff's April and May payments. (Compl. ¶ 23.)
Plaintiff continued to make payments from June to September of 2018. (Compl. ¶ 24.) In June, July, and August, Plaintiff made online payments for which Defendant charged Plaintiff $10.00 in Special Request Fees per payment. (Compl. ¶ 24.) In September, Plaintiff made her payment by phone, but was not charged the Special Request Fee associated with telephonic payments because the online payment system was offline and unavailable. (Compl. ¶ 24.)
Following the charges for Special Request Fees, Plaintiff "provid[ed] [Defendant] with multiple written notices instructing [Defendant] of its obligations under California law and explaining that Plaintiff would file suit if no corrective action was taken." (Compl. ¶ 28.) In a response dated September 27, 2018, Defendant informed Plaintiff that it was "unable" to waive the Special Request Fees and that it intended to continue assessing them. (Compl. ¶ 8.)
On October 3, 2018, Plaintiff filed the instant action against CIT and Defendant in the Los Angeles County Superior Court, alleging causes of action for (1) violations of the Rosenthal Fair Debt Collection Practices Act, (2) violation of California's unfair competition law, and (3) breach of contract. ( See generally Compl.) Defendant removed the action to this Court on November 2, 2018 under the Class Action Fairness Act. (Notice of Removal, ECF No. 1.) Defendant now moves to dismiss the action for failure to state a claim. (Mot., ECF No. 14.)
II. LEGAL STANDARD
Under Rule 12(b)(6), an action may be dismissed for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Dismissal is appropriate if the plaintiff does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A claim is facially plausible when the plaintiff pleads facts that "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citation omitted).
In deciding whether the plaintiff has stated a claim upon which relief can be granted, the Court may consider both the complaint and documents attached to the complaint. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). The Court accepts the plaintiff's allegations as true and draws all reasonable inferences in favor of the plaintiff. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008); see also Twombly, 550 U.S. at 555 (requiring "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"). There must be "more than a sheer possibility that a defendant has acted unlawfully." Turner v. City & Cty. of San Francisco, 788 F.3d 1206, 1210 (9th Cir. 2015). However, "a court may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss." Parker v. Nishiyama, 438 Fed. Appx. 642, 643 (9th Cir. 2011) (quoting Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003)).
As a general rule, leave to amend a complaint which has been dismissed should be freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when "the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).
III. DISCUSSION
A. Rosenthal Fair Debt Collection Practices Act
The Court first addresses whether Plaintiff has plead sufficient facts to state a claim under California Civil Code § 1788 et. seq., the Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"). To sustain a claim under the Rosenthal Act, Plaintiff must establish that (1) she is a "debtor" (2) who was the object of a collection activity arising from a "debt"; (3) Defendant is a "debt collector"; and, (4) Defendant violated a provision of the Rosenthal Act. See Long v. Nationwide Legal File & Serve, Inc., No. 12-CV-03578-LHK, 2013 U.S. Dist. LEXIS 132971, 2013 WL 5219053, at *17 (N.D. Cal. Sept. 17, 2013); see also Flores v. Collection Consultants of California, No. SACV140771DOCRNBX, 2015 U.S. Dist. LEXIS 92732, 2015 WL 4254032, at *4 (C.D. Cal. Mar. 20, 2015). Plaintiff alleges that Defendant violated the Rosenthal Act by (1) charging her Special Request Fees that were "not authorized by contract or law" when she made mortgage payments during the grace period, and (2) "falsely representing that it [was] entitled to payment of the Special Request Fees." (Compl. ¶ 47.) Defendant contends that Plaintiff's Rosenthal Act claim fails because she "fails to allege and cannot allege that she was the object of debt collection activity" within the meaning of the Rosenthal Act . (Mot. 18.) For the reasons discussed below, the Court finds that Plaintiff has sufficiently alleged a claim under the Rosenthal Act.
1. Plaintiff Has Sufficiently Alleged That She is a Debtor
Under the Rosenthal Act, a debtor is a natural person from whom a debt collector seeks to collect money, property, or their equivalent, that is due or owing (or alleged to be due and owing) from the natural person as a result of a transaction in which the natural person acquired—on credit—property, services, or money primarily for personal, family or household purposes. See Cal. Civ. Code. § 1788.2(d)-(h) (defining the terms "debt," "consumer credit transaction," "consumer debt" and "consumer credit," "person," and "debtor").
Here, Plaintiff alleges that she is the borrower on a "residential mortgage loan" secured by her California home. (Compl. ¶¶ 9, 16.) This suffices to allege a transaction in which Plaintiff—a natural person—acquired "money, property, or their equivalent" primarily for personal purposes. See Cutler ex rel. Jay v. Sallie Mae, Inc., No. EDCV-13-2142-MWF, 2014 U.S. Dist. LEXIS 181914, 2014 WL 7745878, at *2 (C.D. Cal. Sept. 9, 2014) (finding that a plaintiff's allegation that she obtained a "student loan" was sufficient to allege a transaction in which money was acquired primarily for personal purposes). Plaintiff further alleges that she has been making payments on the loan since 2009, thus establishing that she owed money as a result of her mortgage. (Compl. ¶ 6.) Accordingly, the Court finds that Plaintiff has sufficiently alleged that she is a debtor within the meaning of the Rosenthal Act.
2. Plaintiff Has Sufficiently Alleged That She Was the Object of Debt Collection Activity
In its Motion, Defendant takes the position that Plaintiff "has not and cannot allege that she was the object of debt collection activity." (Mot. 11-12.) The basis for this argument is that, because Plaintiff regularly paid the amount due, there is no "debt that is delinquent or alleged to be delinquent." (Mot. 18) (emphasis added). In essence, Defendant argues that Plaintiff's debt was not "due or owing," and that she therefore could not be the subject of collection activity under the Rosenthal Act.
In a 2002 opinion addressing the application of the Rosenthal Act, the California Attorney General concluded that debts are "due and owing" when they "become delinquent, making them subject to collection." 85 Cal. Op. Att'y Gen. 215 (2002). By contrast, "obligations that are 'current,' prior to becoming delinquent and before the date at which payment required, are not subject to the Act's requirements." Id. The Attorney General's construction of debts that are "due and owing" can thus be read as referring to debts for which payment is immediately or past due. See Burris v. HSBC Bank USA, Nat'l Ass'n, No. 14-CV-02242 AB (CWX), 2014 WL 12772260, at *5 (C.D. Cal. Dec. 19, 2014) ("According to the Attorney General of California, 'due' means 'having reached the date at which payment is required,' and 'owing' means 'due to be paid'").
In arguing that Plaintiff's debt was not "due and owing," Defendant note that Plaintiff does not allege that her loan was "delinquent," as well as the fact that she made "dutiful payments." (Mot. 18.) The Court finds that while Plaintiff may not have used the term "delinquent," she has alleged sufficient facts to establish that her mortgage debt was, in fact, past due. In her Complaint, Plaintiff alleges that there was a "15-day 'grace period' after the due date for each payment." (Compl. ¶ 17.) Plaintiff further alleges while she did indeed make payments, she made them on the last day of the grace period for each month. (Compl. ¶¶ 18, 22-24.) Accepting Plaintiff's allegations as true, and drawing all reasonable inferences in her favor, the Court finds that Plaintiff has pled sufficient facts for the Court to logically conclude that Plaintiff's mortgage debt was "due and owing" at the time Defendant's alleged violations occurred. Cf. Burris v. HSBC Bank USA, Nat'l Ass'n, No. 14-CV-02242 AB (CWX), 2014 WL 12772260, at *6 (C.D. Cal. Dec. 19, 2014) (finding that credit card debt is not "due or owing" prior to the due date listed in the statement).
Having determined that Plaintiff's allegations establish that her debt was "due and owing," the Court now examines whether Plaintiff has sufficiently alleged that she was the object of "debt collection" activity. In arguing that Plaintiff was not the subject of debt collection activity, Defendant cites Plaintiff's failure to allege that "[her mortgage loan] had been placed in collections, or that she ever even received a dunning letter or dunning calls asserting that the mortgage was delinquent and subject to debt collection." (Mot. 18.) Plaintiff argues that "the plain language of the RFDCPA does not require any of these things to happen," and the Court is inclined to agree. (Opp'n 5.) As defined by the Rosenthal Act, "debt collection" refers to " any act or practice in connection with the collection of consumer debts." Cal. Civ. Code § 1788.2(b). Here, Plaintiff alleges that Defendant "regularly sent or directed to be sent mortgage bills and other notices seeking to collect money," and charged Special Request Fees for payments made after the due date. (Compl. ¶ 43.) These acts fall within the Rosenthal Act's expansive definition of "debt collection." See Cal. Civ. Code § 1788.2(b).
In light of the above, the Court finds that Plaintiff has sufficiently alleged that she was the object of debt collection activity.
3. Plaintiff Has Sufficiently Alleged That Defendant is a Debt Collector
Defendant also contends that Plaintiff fails to establish that Defendant acted as a debt collector, given her allegation that Defendant "acted as the servicer of Plaintiff's mortgage loan." (Mot. 18; see also Compl. ¶ 43.) In support of this contention, Defendant cites several cases in which various district courts found that mortgage servicers were not "debt collectors." (Mot. 19.) However, the Court notes that these cases were interpreting the federal Fair Debt Collection Practices Act's ("FDCPA") definition of a "debt collector" rather than the definition provided in California's Rosenthal Act. In finding that mortgage servicers are not "debt collectors" within the meaning of the FDCPA, district courts rely on the FDCPA's exclusion from its definition of a debt collector "any person collecting or attempting to collect any debt owed or due another to the extent such activity...(iii) concerns a debt which was not in default at the time it was obtained." See 15 U.S.C. § 1692(a)(6)(F).
See Arostegui v. Bank of America, No. C 13-6009 PJH, 2014 U.S. Dist. LEXIS 37792, 2014 WL 1230762, at *6 (N.D. Cal., Mar. 21, 2014) (finding that a loan servicer was not a debt collector under the FDCPA); Jenkins v. BAC Home Loan Servicing, LP, 822 F. Supp. 2d 1369, 1374 (M.D. Ga. 2011) (finding that mortgage servicers are not debt collectors for purposes of the FDCPA); Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 198 L. Ed. 2d 177 (2017) (holding that individuals and entities who regularly purchase debts originated by someone else and then seek to collect those debts for their own account are not "debt collectors" under the FDCPA).
By contrast, the Rosenthal Act "does not so limit the definition of "debt collector." Davidson v. Seterus, Inc., 21 Cal. App. 5th 283, 230 Cal. Rptr. 3d 441, 455 (Ct. App. 2018), review denied (June 13, 2018); see also Izenberg v. ETS Servs., LLC, 589 F. Supp. 2d 1193, 1199 (C.D. Cal. 2008) ("[T]he definition of 'debt collector' found in the [Rosenthal Act] is broader than that contained in the FDCPA"). The Rosenthal Act defines a debt collector as "any person who, in the ordinary course of business, regularly, on behalf of himself or others, engages in debt collection." Cal. Civ. Code § 1788.2(c). More specifically:
[T]he Rosenthal Act considers anyone who regularly engages in the act or practice of collecting money, property or their equivalent that is due or owing by a natural person as a result of a transaction between that person and another person, in which the natural person acquired property, services, or money on credit, primarily for personal, family, or household purposes to be a "debt collector."
Seterus, 230 Cal. Rptr. 3d at 448 (citing Cal. Civ. Code § 1788.2). Accordingly, a mortgage servicer who engages in "the act or practice of collecting money, property or their equivalent" in an attempt to obtain repayment of mortgage debt may be considered a "debt collector" under the Rosenthal Act. Id. at 456. For the purposes of the instant motion, the Court concludes that the Rosenthal Act's more expansive definition of "debt collector" should apply. In so doing, this Court is guided by the California Court of Appeals' recent decision in Davidson v. Seterus:
It is significant that although [the California] Legislature adopted a number of the FDCPA's provisions, including, under section 1788.17, all of the substantive provisions applicable to debt collectors under the FDCPA, as well as the remedies for violations of those provisions, the Legislature did not incorporate into the Rosenthal Act 15 U.S.C. § 1692a of the federal act—i.e., the section that defines "debt collector" for purposes of the FDCPA. The express inclusion of many provisions of the federal act, but not the provision in question, indicates that our Legislature intended that the Rosenthal Act not mirror the federal act in this regard.
Seterus, 230 Cal. Rptr. 3d at 455 (emphasis added). Given that Plaintiff alleges violations of the FDCPA as incorporated into the Rosenthal Act—as opposed to independent violations of the FDCPA—the Court finds that Plaintiff need only allege facts sufficient to show that Defendant was a "debt collector" as defined by the Rosenthal Act. Here, Plaintiff alleges that Defendant—as her mortgage loan servicer—acted as a debt collector because it "regularly...sent mortgage bills and notices seeking to collect money," collected payments on her residential mortgage loan from April 2018 to September 2018, and assessed fees on such payments. (Compl. ¶ 43.) Thus, Plaintiff has pled sufficient facts to show that Defendant is a "debt collector" under the Rosenthal Act. See Walters v. Fid. Mortg. of CA, 730 F. Supp. 2d 1185, 1203 (E.D. Cal. 2010) (finding that mortgage servicer that "regularly billed [client] and collected payments on her mortgage loan debt" was a debt collector under the Rosenthal Act).
4. Plaintiff Has Sufficiently Alleged a Violation of the Rosenthal Act
The Court now examines whether Plaintiff has sufficiently alleged a violation of a provision the Rosenthal Act. In her Complaint, Plaintiff alleges that Defendant violated Section 1788.17 of the Rosenthal Act, which incorporates provisions from the federal Fair Debt Collection Practices Act, providing that "every debt collector collecting or attempting to collect a consumer debt shall comply with the provisions of Sections 1692b to 1692j" of the federal Fair Debt Collection Practices Act ("FDCPA"). Cal. Civ. Code. § 1788.17. In the present case, Plaintiff alleges that Defendant violated Sections 1692f(1) and 1692e of the FDCPA. (Compl. ¶¶ 45-46.)
a. Section 1692f(1)
Section 1692f(1) of the FDCPA prohibits debt collectors from collecting "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." 15 U.S.C. § 1692f(1). Here, Plaintiff alleges that Defendant violated Section 1692f(1) by assessing Special Request Fees that were "not authorized by contract or law." (Compl. ¶ 47.) According to Plaintiff, there is "no deed of trust or promissory note for any residential mortgage authoriz[ing] Defendant to impose the Special Request Fees." (Compl. ¶ 26.)
Defendant contends that "there is no FDCPA violation." However, Defendant does not argue that the fees are permitted by either the deed of trust or promissory note that form the basis for Plaintiff's mortgage debt. (Mot. 11.) Instead, Defendant's only argument in support of its contention that it did not violate Section 1692f(1) appears to be a suggestion that the fees are permitted by law. Specifically, Defendant suggests that "loan-related fees, including servicing fees, are generally a matter of federal regulation such that state laws seeking to regulate such fees are preempted." (Mot. 17.) However, the authority on which Defendant relies is limited to lending regulation for federal savings associations, and therefore inapplicable in the context of the instant action.
In its Motion, Defendant cites to Bank of Am. v. City & Cty. of San Francisco, 309 F.3d 551, 560 (9th Cir. 2002), as amended on denial of reh'g and reh'g en banc (Dec. 20, 2002) (finding that federal regulations authorize federal savings associations to charge fees for deposit and lending-related services), and Lopez v. World Sav. & Loan Assn., 105 Cal. App. 4th 729, 743, 130 Cal. Rptr. 2d 42 (2003) (holding that homeowner's action against a federally-chartered savings association alleging violation of a California statute capping payoff demand statement fees was preempted because federal law "occupies the entire field of lending regulation for federal savings associations"). Neither case deals with fees under 15 U.S.C. § 1692f.
In light of the above, the Court finds that Plaintiff has alleged sufficient facts to "allow the court to draw the reasonable inference" that Defendant is liable for a violation of Section 1692f(1), and by extension, a violation of Section 1788.17 of the Rosenthal Act. See Iqbal, 556 U.S. at 678.
b. Section 1692e
Section 1692e of the FDCPA prohibits debt collectors from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. Because Section 1692 "may be violated only on a showing of false or misleading communications," it sounds in fraud and is subject to the heightened pleading requirements found in Rule 9(b) of the Federal Rules of Civil Procedure. Cutler, 2014 U.S. Dist. LEXIS 181914, ,2014 WL 7745878, at *3; see also Fall v. Bank of New York Mellon, No. CV 17-00771-BRO (EX), 2017 U.S. Dist. LEXIS 221902, 2017 WL 7806593, at *16 (C.D. Cal. May 5, 2017) ("Because Plaintiff attempted to assert an FDCPA violation that sounds in fraud, he would be required to plead his Section 1692e(2)(A) claim with particularity").
Rule 9(b) requires that "in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud. Malice, intent, knowledge, and other conditions of a person's mind may be averred generally." Fed. R. Civ. P. Rule 9(b). "A pleading is sufficient under Rule 9(b) if it identifies the circumstances constituting fraud so that a defendant can prepare an adequate answer from the allegations." Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 540 (9th Cir. 1989). The complaint "must set forth what is false or misleading about a statement, and why it is false," not just the "neutral facts necessary to identify the transaction." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (quoting Decker v. GlenFed, Inc., 42 F.3d 1541, 1548 (9th Cir.1994). "Averments of fraud must be accompanied by 'the who, what, when, where, and how' of the misconduct charged." Vess, 317 F.3d at 1106 (citing Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)).
Here, Plaintiff alleges that Defendant violated Section 1692e by "falsely representing that it was entitled to payment of the Special Request Fees." (Compl. ¶ 47.) However, Plaintiff neither identifies which, if any, affirmative statements made by Defendant constituted false representations that violated Section 1692e, nor what was false or misleading about such representations. ( See generally Compl.) At most, Plaintiff alleges that Defendant sent "printed fee schedule[s] for the Special Request Fees" as part of monthly invoices; told her over the phone that it normally assessed fees for telephonic payments; and sent her a letter stating that it was "unable" to waive the Special Request Fees. (Compl. ¶¶ 3, 24, 28.) These allegations are insufficient to meet the pleading standard set forth in Rule 9(b).
5. Conclusion Regarding Plaintiff's Rosenthal Act Claim
While Plaintiff's claim pursuant to Section 1692e fails to meet the required pleading standards, she has adequately pled a violation of Section 1692f(1) of the FDCPA. For this reason, the Court concludes that Plaintiff has sufficiently alleged a cause of action under the Rosenthal Act, and Defendant's Motion is DENIED with respect to this claim. However, the Court emphasizes that Plaintiff is permitted to proceed on her Rosenthal Act claim only on the basis of Defendant's alleged violation of Section 1692f(1).
B. California Unfair Competition Law
Finally, the Court addresses Plaintiff's claim under California's unfair competition law ("UCL"). California law defines unfair competition to "mean and include any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." Cal. Bus. & Prof. Code § 17200. "[A] business act or practice need only meet one of the three criteria—unlawful, unfair, or fraudulent—to be considered unfair competition under the UCL." Daro v. Superior Court, 151 Cal. App. 4th 1079, 1093, 61 Cal. Rptr. 3d 716 (2007), as modified on denial of reh'g (July 3, 2007).
1. Unlawful Business Practices
An "unlawful" business practice is "anything that can [] properly be called a business practice and that at the same time is forbidden by law." Nat'l Rural Telecommunications Co-op. v. DIRECTV, Inc., 319 F. Supp. 2d 1059, 1074 (C.D. Cal. 2003), on reconsideration in part (June 5, 2003) (citing Smith v. State Farm Mut. Auto. Ins. Co., 93 Cal. App. 4th 700, 717-18, 113 Cal. Rptr. 2d 399 (2001)). To sustain a cause of action for unlawful business practices, a plaintiff must "state with reasonable particularity the facts supporting the statutory elements of the violation." Casault v. Fed. Nat. Mortg. Ass'n, 915 F. Supp. 2d 1113, 1128-29 (C.D. Cal. 2012 ), aff'd sub nom. Casault v. One W. Bank FSB, 658 F. App'x 872 (9th Cir. 2016) (citing Khoury v. Maly's of California, Inc., 14 Cal. App. 4th 612, 618, 17 Cal. Rptr. 2d 708 (1993)).
Here, Plaintiff asserts that Defendant violated the UCL by "attempting to collect and in fact collecting Special Request Fees" in violation of the RFDCPA. (Compl. ¶ 56.) Defendant contends that Plaintiff's UCL claim fails because it is predicated on her underlying Rosenthal Act claim, which it contends should also fail. Because Plaintiff sufficiently alleged a violation of the Rosenthal Act, Defendant's argument is moot. Furthermore, because Plaintiff has sufficiently alleged that Defendant's practice of assessing Special Request Fees violates California law, the Court finds that Plaintiff has sufficiently alleged a claim for "unlawful" business practices under the UCL. See Nat'l Rural Telecommunications Co-op, 319 F. Supp. 2d at 1074.
2. Fraudulent Business Practices
A "fraudulent" business practice is one by which "[reasonable] members of the public are likely to be deceived." Rubio v. Capital One Bank, 613 F.3d 1195, 1204 (9th Cir. 2010) (alterations in original). A cause of action under the fraudulent business practices prong of the UCL must be plead with "particularity" pursuant to Rule 9(b). See Fed. R. Civ. P. 9(b).
Here, Plaintiff alleges that "[Defendant's] conduct was fraudulent in that [Defendant] falsely represented that it was legally entitled to collect the Special Request Fees from Plaintiff and members of the [putative] Class." (Compl. ¶ 58.) Like the allegations regarding Defendant's Section 1692e violation, Plaintiff's cursory allegations as to Defendant's "fraudulent" business practices are insufficient under the pleading standard of Rule 9(b).
3. Conclusion Regarding Plaintiff's UCL Claims
Because Plaintiff sufficiently alleges an "unlawful" business practice, Defendant's Motion is DENIED with respect to Plaintiff's UCL cause of action. However, as with Plaintiff's Rosenthal Act cause of action, Plaintiff's allegations regarding Defendant's "fraudulent" representations are insufficient under Rule 9(b). Accordingly, Plaintiff's UCL cause of action may proceed only under the "unlawful" prong.
IV. RULING
For the foregoing reasons, Defendant's Motion to dismiss Plaintiff's Complaint is DENIED.
IT IS SO ORDERED.