Huy Thanh Vo v. Nelson & Kennard, 931 F. Supp. 2d 1080

ORDER

LAWRENCE K. KARLTON, Senior District Judge.

Plaintiff Huy Thanh Vo sues defendants U.S. Bank National Association, N.D. and the law firm of Nelson & Kennard for unfair debt collection practices. U.S. Bank now moves to dismiss plaintiffs Second Amended Complaint under Federal Rule of Civil Procedure 12.¹

The motion came on for hearing on March 11, 2013. Having considered the matter, for the reasons set forth below, the court will grant U.S. Bank’s motion in part and deny it in part.

I. PLAINTIFF’S ALLEGATIONS²

Prior to 2009, plaintiffs brother, Khoa T. Vo, allegedly incurred a debt to defendant U.S. Bank. (Second Amended Complaint (“SAC”) ¶ 11, ECF No. 21.) Upon asserted failure to pay the debt, U.S. Bank retained defendant Nelson & Kennard to take legal action to collect the alleged debt. (SAC ¶ 13.)

Nelson & Kennard represented U.S. Bank in the case of U.S. Bank National Association ND v. Huy Thanh Vo aka Khoa T Vo, No. 34-2009-00041262, filed in the Sacramento County Superior Court (“Collection Action”). (SAC ¶ 13.) Even though plaintiff was named as a defendant in the Collection Action, he bore no responsibility for the alleged debt. (SAC ¶ 15.)

On August 17, 2009, U.S. Bank took plaintiffs default judgment in the Collection Action, although he had never been served. (SAC ¶ 13.) The default judgment was subsequently recorded in Sacramento County, causing a judgment lien to attach to plaintiffs real property in the county. (SAC ¶ 14.)

The judgment negatively affected plaintiffs credit rating. In April 2012, when plaintiff attempted to refinance a loan on his property, he was offered an interest rate of 5.5%, though interest rates as low as 4% were available to borrowers with good credit. (SAC ¶ 36.)

Plaintiff was not served with the complaint in the Collection Action, the default judgment, or a lien notice, and was therefore unaware of the lawsuit for several years. (SAC ¶ 19.)

The first time plaintiff learned of the Collection Action was in April 2012, when he was served with a notice of levy. (SAC ¶ 22.) He was confused because he had never incurred a debt to U.S. Bank. (SAC ¶ 25.)

Plaintiff retained his present counsel, Jeremy Winter, to investigate. (SAC ¶ 25.) Winter contacted Nelson & Kennard, which, after researching the issue, agreed that only Khoa T. Vo was liable for the alleged debt, and that plaintiff had been incorrectly named as a defendant in the Collection Action. (SAC ¶¶ 25-26.)

On May 24, 2012, attorney Winter corresponded with Nelson & Kennard, and demanded that defendants do whatever was necessary to vacate the judgment entered against plaintiff, and thereby clear up his credit report. (SAC ¶ 40.) Winter followed up with Nelson & Kennard twice thereafter. Nevertheless, nearly 90 days passed with no corrective action by defendants. (SAC ¶ 41.)

On August 20, 2012, plaintiff moved to vacate the default judgment. U.S. Bank opposed the motion, requesting that the court instead substitute Khoa T. Vo’s name for plaintiffs in the pleadings and default judgment. Plaintiff incurred additional attorney fees in having to reply to this opposition. (SAC ¶¶ 47-48, 51.) The Sacramento County Superior Court ultimately granted plaintiffs motion. (SAC ¶ 52.)

These events, and a consequent, ongoing-deterioration in his relationship with his brother Khoa T. Vo, caused plaintiff emotional distress. Plaintiff also incurred attorney fees and costs in moving to vacate the default judgment. (SAC ¶¶ 44-46, 53, 61.)

Plaintiffs complaint asserts: (1) violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (“FDCPA”); (2) violations of California’s Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§ 1788-1788.33 (“Rosenthal Act”); (3) negligence; (4) libel, and (5) malicious prosecution.

Defendant moves to dismiss the SAC under Rule 12(b)(6), as well as for lack of subject matter jurisdiction under Rule 12(b)(1) and the Rooker-Feldma/n doctrine.

II. STANDARD ON MOTION TO DISMISS UNDER RULE 12(b)(6)

A dismissal motion under Rule 12(b)(6) challenges a complaint’s compliance with federal pleading requirements. Under Rule 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The complaint must give the defendant “ ‘fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

To meet this requirement, the complaint must be supported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Moreover, this court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).³

“While legal conclusions can provide the framework of a complaint,” neither legal conclusions nor conclusory statements are themselves sufficient, and such statements are not entitled to a presumption of truth. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Iqbal and Twombly therefore prescribe a two-step process for evaluation of motions to dismiss. The court first identifies the non-conclusory factual allegations, and then determines whether these allegations, taken as true and construed in the light most favorable to the plaintiff, “plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 664,129 S.Ct. 1937.

“Plausibility,” as it is used in Twombly and Iqbal, does not refer to the likelihood that a pleader will succeed in proving the allegations. Instead, it refers to whether the non-conclusory factual allegations, when assumed to be true, “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663, 129 S.Ct. 1937. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557,127 S.Ct. 1955).⁴ A complaint may fail to show a right to relief either by lacking a cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1988).

III. ANALYSIS

A. Request for Judicial Notice

U.S. Bank requests that the court take judicial notice of seven documents filed in the Collection Action: (1) U.S. Bank’s complaint, filed April 15, 2009 (Request for Judicial Notice (“RJN”) Ex. 6, ECF No. 22-3); (2) proof of service of summons & complaint, filed June 29, 2009 (RJN Ex. 1); (3) U.S. Bank’s request for entry of default and default judgment, filed August 17, 2009 (RJN Ex. 8); (4) default judgment, entered August 17, 2009 (RJN Ex. 2); (5) plaintiff Huy Thanh Vo’s motion for relief from default judgment, filed August 20, 2012 (RJN Ex. 3); (6) defendant U.S. Bank’s ex parte application for order amending judgment, filed September 19, 2012 (RJN Ex. 4); and (7) a minute order of the Sacramento County Superior Court, dated September 21, 2012 (RJN Ex. 5).

U.S. Bank also requests that the court take judicial notice of an abstract of judgment, issued by the Sacramento County Superior Court on December 16, 2009 and recorded in the Sacramento County Recorder’s Office on December 31, 2009. (RJN Ex. 7.)

“As a general rule, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001) (internal quotations and citation omitted). However, a court may consider matters properly subject to judicial notice. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir.2007). A matter may be judicially noticed if it is either “generally known within the territorial jurisdiction of the trial court” or “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). Courts may “take judicial notice of court filings and other matters of public record[, as they] are readily verifiable and, therefore, the proper subject of judicial notice.” Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir.2006) (internal citation omitted).

Accordingly, the court will take judicial notice of the eight documents specified by the bank.

B. Has the applicable statute of limitations expired?

The FDCPA’s statute of limitations is “one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). Rosenthal Act claims must also be brought “within one year from the date of the occurrence of the violation.” Cal. Civ. Code § 1788.30(f).

U.S. Bank argues that, as the Collection Action was filed on April 15, 2009, and this action was commenced on October 10, 2012, plaintiffs causes of action under the FDCPA and the Rosenthal Act are time-barred. (Memorandum of Points and Authorities in Support of Motion to Dismiss (“Mot. to Dismiss”) 4-5, ECF No. 22-1.)

Plaintiff counters that the statute of limitations began to run only in April 2012, when he was served with a notice of levy and first learned of the Collection Action. (Opposition to U.S. Bank’s Motion to Dismiss (“Opposition”) 4, ECF No. 26.)

Under Ninth Circuit precedent, the FDCPA limitations period “begins to run when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Mangum v. Action Collection Serv., Inc., 575 F.3d 935, 940 (9th Cir.2009) (internal citation and quotation omitted). The Ninth Circuit has also held, however, that where the alleged violation is the filing of a lawsuit, the statute of limitations begins to run on the date the complaint was filed. Naas v. Stolman, 130 F.3d 892, 893 (9th Cir.1997).

The apparent contradiction between these holdings can be resolved by recognizing that Naas only applies to cases where there is no question that the defendant was properly named and served in the underlying collection action. In such cases, the statute of limitations should ordinarily begin to run upon the action’s filing. But where the defendant does not receive proper notice in the course of litigation, then, per Mangum, the statute of limitations begins to run when the plaintiff “knows or has reason to know” of the FDCPA violation.

Post-Mangum district court opinions which address the FDCPA’s statute of limitations follow this pattern. In Cappos v. Suppa, Trucchi & Henin, LLP, No. 12-ev-357, 2012 WL 6057995, 2012 U.S. Dist. LEXIS 173383 (S.D.Cal. Dec. 5, 2012) — a decision relied upon by U.S. Bank, and one that cites both Mangum and Naas — the plaintiffs sued under the FDCPA and the Rosenthal Act, alleging that defendant sued for an excessive amount in the underlying collection action. The court, in finding the claim time-barred, noted, “Plaintiffs’ state-court answer unequivocally shows that they knew of Wells Fargo’s attempt to collect the impermissible debt at the very latest when Plaintiffs filed their answer.” Id. In other words, the Cappos plaintiffs were properly named and served.

By contrast, in Greco-Rambo v. Prof'l. Collection Consultants, No. 11CV917, 2011 WL 3759676, 2011 U.S. Dist. LEXIS 95328 (S.D.Cal. Aug. 25, 2011), the plaintiff alleged that she was not served with the state court complaint, and only learned of the collection action thirteen months later, when her wages were garnished. Four months thereafter, she filed suit under the FDCPA. Defendant moved to dismiss under the statute of limitations; the court denied the motion, reasoning that, “[h]aving alleged that Plaintiff was unaware of the default judgment until December 2010, the Court concludes that Plaintiff could prove a set of facts that would establish that equitable tolling applies and that the action was timely.”

U.S. Bank argues that equitable tolling is not warranted under the facts of this case. It contends that the mailing of a Request for Entry of Default to plaintiffs home address on August 6, 2009 and the recording of an Abstract of Judgment on December 31, 2009 put plaintiff on either actual or constructive notice no later than the end of 2009. (Mot. to Dismiss 5.) I cannot agree. The complaint alleges that plaintiff did not receive actual notice till he was mailed a notice of levy in April 2012. In ruling on a Rule 12(b)(6) motion to dismiss, the court must accept all well-pleaded facts as true. Erickson, 551 U.S. at 94, 127 S.Ct. 2197. Even having taken judicial notice of the Request for Entry of Default and Abstract of Judgment, the court has no basis for not accepting the truth of plaintiffs allegation that he did not know about the Collection Action until April 2012. Indeed, receiving notice of entry of default in a case the plaintiff never received a summons in might well give rise to confusion. Confusion, however, is not the equivalent of notice.

Moreover, as to U.S. Bank’s constructive notice argument, a judgment entered against a party not served with process is deemed void. Nissan v. Barton, 4 Cal. App.3d 76, 81, 84 Cal.Rptr. 36 (1970). Defendant cites no authority for deeming a person to have constructive notice of a lien based upon a void judgment, nor can I find any reason to do so.

Finally, there are no grounds to bar plaintiffs Rosenthal Act claims under the Act’s one-year statute of limitations. At least one California Court of Appeals has persuasively argued that the so-called “continuing violation doctrine” applies to Rosenthal Act cases.⁵ Komarova v. National Credit Acceptance, Inc., 175 Cal. App.4th 324, 95 Cal.Rptr.3d 880 (2009). Under this doctrine, when allegedly unlawful acts constitute a “continuing pattern and course of conduct,” then suit regarding the entire course of conduct is timely if a complaint is filed within one year of the most recent violation. Id. at 343-44, 95 Cal.Rptr.3d 880. “Application of the doctrine ... [is] entirely consistent with the Rosenthal Act’s broad remedial purpose of protecting consumers.” Id. at 344, 95 Cal.Rptr.3d 880 (quoting Joseph v. J.J. Mac Intyre Companies, L.L.C., 281 F.Supp.2d 1156, 1162 (N.D.Cal.2003)). As the Komarova court observed: “Use of judicial proceedings to collect a debt without service of process ... will also be a continuing course of conduct insofar as the conduct involves multiple acts, such as obtaining and collecting on a judgment, that extend over a period of time before the proceedings are concluded.” Accordingly, the court concludes that the Rosenthal Act’s statute of limitations does not bar plaintiffs second cause of action.

C. Is U.S. Bank subject to the FDCPA?

U.S. Bank argues that it cannot be held liable under the FDCPA because (1) it is not a debt collector, and (2) the statute does not provide for vicarious liability. (Mot. to Dismiss 6-8.)

1. Is U.S. Bank a “debt collector” under the FDCPA?

To be held directly liable for violating the FDCPA, a defendant must, as a threshold requirement, be a “debt collector,” within the meaning of the statute. Heintz v. Jenkins, 514 U.S. 291, 293, 115 5. Ct. 1489, 131 L.Ed.2d 395 (1995).

15 U.S.C. § 1692a(6) defines “debt collector” as “a person who uses any instrumentality of interstate commerce or the mails 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.”

With certain exceptions,⁶ it has been held that a creditor seeking to collect its own debt is not subject to the FDCPA. See Maguire v. Citicorp Retail Services, Inc., 147 F.3d 232, 235 (2nd Cir.1998) (“As a general matter, creditors are not subject to the FDCPA”); Staub v. Harris, 626 F.2d 275, 277 (3rd Cir.1980) (“The [FDCPA] does not apply to persons or businesses collecting debts on their own behalf’); Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir.1985) (“The legislative history of section 1692a(6) indicates conclusively that a debt collector does not include the consumer’s creditors .... ”); MacDermid v. Discover Fin. Services, 488 F.3d 721, 734 (6th Cir.2007) (“The term ‘debt collector’ has a particular meaning, however: it refers only to persons attempting to collect debts due ‘another’ ”); Aubert v. American Gen. Fin., Inc., 137 F.3d 976, 978 (7th Cir.1998) (“Because creditors are generally presumed to restrain their abusive collection practices out of a desire to protect their corporate goodwill, their debt collection activities are not subject to the [FDCPA] unless they collect under a name other than their own”).⁷

Plaintiff alleges that Khoa T. Vo incurred a financial obligation to U.S. Bank sometime before 2009. (SAC ¶ 11.) As U.S. Bank was attempting to collect on this obligation — ie., its own debt — when it sued plaintiff, under the cases noted above, it is not a “debt collector” within the meaning of the FDCPA and therefore cannot be held directly liable under the statute.⁸

2. Can U.S. Bank be held vicariously liable under the FDCPA for Nelson & Kennard’s actions?

Plaintiff alleges: “Because [Nelson & Kennard] acted on behalf of U.S. Bank in it’s [sic] collection of the debt against Plaintiff, Defendant U.S. Bank should be held vicariously liable under the FDCPA and be subject to the same penalties and damages as [Nelson & Kennard].” (SAC ¶ 65.)

In support of this position, plaintiff cites Fox v. Citicorp Credit Serv., Inc., 15 F.3d 1507 (9th Cir.1994). (Opposition 7.) Fox holds that, “[i]n order to give reasonable effect to section 1692i [which requires collection actions to be brought in the proper venue], we must conclude that Congress intended the actions of an attorney to be imputed to the client on whose behalf they are taken.” (Id. at 1516.)

U.S. Bank counters that, for vicarious liability to apply, the vicariously liable party must itself be a “debt collector,” as defined by the FDCPA. In support of this position, it cites Oei v. N Star Capital Acquisitions, LLC, 486 F.Supp.2d 1089, 1097 (C.D.Cal.2006), and two cases from the Sixth Circuit, Wadlington v. Credit Acceptance Corp., 76 F.3d 103, 108 (6th Cir.1996) and Havens-Tobias v. Eagle, 127 F.Supp.2d 889, 898 (S.D.Ohio 2001).

The FDCPA is silent on the issue of vicarious liability; the doctrine is a creation of easelaw.⁹ The Supreme Court has not directly dealt with the issue of vicarious liability in FDCPA cases.¹⁰

Besides Fox, the only other Ninth Circuit case to address vicarious FDCPA liability is Clark v. Capital Credit & Collection Serv., 460 F.3d 1162 (9th Cir.2006). The Clark plaintiff sought to hold an attorney hable for its debt collector client’s FDCPA violations (i.e., the converse of the scenario presented in Fox and Newman, supra). In deciding this issue, the Ninth Circuit began by affirming Fox’s central holding, that clients are vicariously liable for their attorneys’ actions under the FDCPA. Nonetheless, the court then refused to affirm the converse principle, finding that “there is no legal authority for the proposition that an attorney is generally liable for the actions of his client.” The court then cited this court’s reasoning in Newman, 912 F.Supp. at 1370, with approval, concluding that “general principles of agency ... form the basis of vicarious liability under the FDCPA,” and that to be held vicariously liable, “the ‘principal’ must exercise control over the conduct or activities of the ‘agent.’” Clark, 460 F.3d at 1173 (citing Restatement (Second) of Agency § 1 (1958)). Finding no evidence that the defendant attorney exercised control over the defendant debt collector, the court affirmed summary judgment in favor of the attorney. Id.

Oei, 486 F.Supp.2d at 1089, cited by defendants, takes a slightly different tack. The Oei court began by finding, in accordance with Clark, Neuman, and the Restatement (Second) of Agency, that attorneys are agents of their debt collector clients, and therefore may be held vicariously liable under the FDCPA. But then, citing Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379, 405 (3rd Cir.2000), Wadlington, 76 F.3d at 103, Caron v. Charles E. Maxwell, P.C., 48 F.Supp.2d 932, 936 (D.Ariz.1999), and First Interstate Bank of Fort Collins v. Soucie, 924 P.2d 1200, 1202 (Colo.App.1996),¹¹ the Oei court held that principals can only be held vicariously liable under the FDCPA if they themselves are “debt collectors” under 15 U.S.C. § 1692a. In other words, under the reasoning of Oei an entity (such as defendant U.S. Bank) that does not meet the FDCPA’s definition of “debt collector” cannot be held vicariously for its attorneys’ acts. With the greatest of respect, I cannot agree.

U.S. Bank’s position (that only “debt collectors” may be held vicariously liable for their attorney’s acts) appears untenable under Ninth Circuit precedent. Neither Fox, 15 F.3d at 1507, nor Clark, 460 F.3d at 1162, found that the parties held vicariously liable were “debt collectors” under the FDCPA. In fact, Clark identifies and discusses a test for determining vicarious liability under the FDCPA— whether or not the alleged principal exercises control over the alleged agent — without reference to whether the alleged principal is a “debt collector.” Id. at 1173. As attorneys are their clients’ agents, Blanton v. Womancare, Inc., 38 Cal.3d 396, 403-4, 212 Cal.Rptr. 151, 696 P.2d 645 (1985), it appears that U.S. Bank can be found vicar iously liable for Nelson & Kennard’s FDCPA violations.

It is evident that holding creditors vicariously liable for their attorneys’ acts under the FDCPA will extend liability under the statute to non-“debt collectors.” Even accepting the Seventh Circuit’s view that creditors are not liable because “they are presumed to restrain their abusive collection practices out of a desire to protect their corporate goodwill,” Aubert, 137 F.3d at 978, an attorney collecting a debt on behalf of a creditor is not restrained by such reputational considerations. By acting as the creditor’s agent, and in effect, allowing the creditor to say, “I didn’t do it; my attorney did it,” the attorney allows the creditor to collect under “a name other than his own which would indicate that a third person is collecting or attempting to collect such debts.” 15 U.S.C. § 1692a(6). In sum, holding non-“debt collector” creditors vicariously liable for their attorneys’ actions creates needed incentives for creditors to monitor their attorneys’ compliance with fair debt collection laws.

I conclude, consistent with the Ninth Circuit’s precedent, that U.S. Bank can be held vicariously liable under the FDCPA for Nelson & Kennard’s acts.

D. Is U.S. Bank subject to the Rosenthal Act?

U.S. Bank disputes its liability for Rosenthal Act violations.

1. Direct liability

Plaintiff has properly pled U.S. Bank’s direct liability under Cal. Civ.Code § 1788.17, under which plaintiff is proceeding. This section provides that “every debt collector collecting or attempting to collect a consumer debt [must] comply with the provisions of [the FDCPA, 15 U.S.C. §§ ] 1692b to 1692j ....” The Rosenthal Act defines “debt collector” as including “any person¹² who, in the ordinary course of business, regularly, on behalf of himself or herself ... engages in debt collection.” Cal. Civ.Code § 1788.2(c) Thus, unlike the FDCPA, the Rosenthal Act applies to creditors seeking to collect their own debts, so long as they do so “in the ordinary course of business, regularly.”) The SAC properly alleges that U.S. Bank is a “debt collector” under this definition (SAC ¶ 8), and therefore states a claim for U.S. Bank’s direct liability.

2. Vicarious liability

U.S. Bank argues that it cannot be held vicariously liable under the Rosenthal Act. Again, I cannot agree.

According to Cal Civ.Code § 1788.2(c), the term “debt collector” does not include an attorney or counselor at law.

U.S. Bank contends that the phrase “attorney” necessarily encompasses law firms, and therefore, defendant Nelson & Kennard is outside the ambit of the Rosenthal Act. Consequently, U.S. Bank cannot be held vicariously liable under the Act for Nelson & Kennard’s actions.

U.S. Bank largely bases its argument on the California Court of Appeals’ opinion in Carney v. Rotkin, Schmerin & McIntyre, 206 Cal.App.3d 1513, 254 Cal.Rptr. 478 (1988) (Kennard, J.).¹³

Two federal judges in California have relied on Carney to hold that the Rosenthal Act does not apply to law firms. See Owings v. Hunt & Henviques, No. 08cv1931-L, 2010 WL 3489342, 2010 U.S. Dist. LEXIS 91819 (S.D.Cal. Sep. 3, 2010) (Lorenz, J.); Minasyan v. Creditors Financial Group, No. 2:12-cv-01864, 2012 WL 2328242, 2012 U.S. Dist. LEXIS 85092 (C.D.Cal. Jun. 19, 2012) (Wright, J.); Ayvazian v. Moore Law Group, No. 2:12— CV-01506, 2012 WL 2411181, 2012 U.S. Dist. LEXIS 88556 (C.D.Cal. Jun. 26, 2012) (Wright, J.).

On the other hand, at least nine federal judges in California have held that the Rosenthal Act does apply to law firms. See Abels v. JBC Legal Group, P.C., 227 F.R.D. 541, 548 (N.D.Cal.2005) (Ware, J.); Navarro v. Eskanos & Adler, No. 06-02231, 2007 WL 549904, 2007 U.S. Dist. LEXIS 15046 (N.D.Cal. Feb. 20, 2007) (Alsup, J.); Owens v. Brachfeld, No. 07-4400, 2008 WL 3891958, 2008 U.S. Dist. LEXIS 63701 (N.D.Cal. Aug. 19, 2008) (Fogel, J.); Robinson v. Managed Accounts Receivables Corp., 654 F.Supp.2d 1051 (C.D.Cal.2009) (Pregerson, J.); Miranda v. Law Office of D. Scott Carruthers, No. 1:10-01487, 2011 WL 2037556, 2011 U.S. Dist. LEXIS 55180 (E.D.Cal. May 23, 2011) (Wanger, J.); Moriarity v. Henriques, No. 1:11-1208, 2011 WL 4769270, 2011 U.S. Dist. LEXIS 90442 (E.D.Cal. Oct. 7, 2011) (Thurston, M.J.); Bautista v. Hunt & Henriques, No. 11-4010, 2012 WL 160252, 2012 U.S. Dist. LEXIS 5009 (N.D.Cal. Jan. 17, 2012) (Spero, M.J.); Silva v. Jason Head, PLC, No. 09-05768, 2010 WL 4593704, 2010 U.S. Dist. LEXIS 121557 (N.D.Cal. Nov. 4, 2010) (Koh, J.); Reimann v. Brachfeld, No. 10-4156, 2010 WL 5141858, 2010 U.S. Dist. LEXIS 131727 (N.D.Cal. Dec. 13, 2010) (Seeborg, J.). However, none of these decisions cites or appears to have considered Carney. Instead, the majority follow the reasoning of Abels, 227 F.R.D. at 548, that “[sjince the [California] legislature specifically excluded attorneys from the statute but was silent on law firms ... the legislature did not intend to exclude law firms.”

In Carney, 206 Cal.App.3d at 1513, 254 Cal.Rptr. 478, two employees of a debt collection law firm (a secretary and an attorney) falsely represented to plaintiff that a bench warrant had issued for her arrest and that it would remain in effect until she paid the sum demanded by the law firm. Plaintiff sued the law firm, the secretary, the attorney, and the original creditor, alleging causes of action for infliction of emotional distress, abuse of process, and Rosenthal Act violations. The trial court sustained defendants’ demurrer and dismissed the complaint in its entirety.

The appeals court partially reversed the trial court’s order, holding that defendant’s conduct was not subject to the litigation privilege articulated in Cal. Civ.Code § 47, and that plaintiff had properly stated claims for intentional and negligent infliction of emotional distress.

The majority of the Carney opinion deals with the foregoing issues. The portion that U.S. Bank and the Owings, Minasyan, and Ayvazian courts rely upon is brief and worth reproducing in full:

Plaintiff’s fourth cause of action alleges that, in telling her “non-payment of her debt would result in her arrest when in fact such action was not contemplated and not permitted by law,” defendants violated the Fair Debt Collection Practices Act, particularly subdivision (e) of Civil Code section 1788.10. However, the Act applies only to “debt collectors”; it specifically exempts attorneys from its coverage. (Civ.Code, § 1788.2, subd. (c).) Here, the complaint shows on its face that defendant attorney was not a “debt collector” within the meaning of the Act. No amendment to the complaint could establish otherwise. Therefore, the trial court properly sustained defendants’ demurrer to the fourth cause of action without leave to amend.

Carney, 206 Cal.App.3d at 1526, 254 Cal. Rptr. 478. In other words, the appeals court did not explicitly find that the term “attorney” includes law firms, or even discuss the issue. Nor can one infer with any certainty that Carney implicitly makes such a finding. The opinion does not make clear whether the plaintiff brought a Rosenthal Act claim against the defendant law firm; it is entirely possible that only the attorney was named, and that the use of the plural possessive in the phrase “defendants’ demurrer to the fourth cause of action” merely reflects the fact that the defendants collectively demurred to the complaint (rather than each defendant individually demurring to the claims brought against him, her, or it). As such, Carney is simply not persuasive precedent for the proposition that the Rosenthal Act exempts law firms from the definition of “debt collector.”

The court now turns to construction of the statute. “In construing a state law, we follow the decisions of the state’s highest court. The Erie principles apply equally in the context of pendent jurisdiction.” Mangold v. Cal. Pub. Utilities Comm’n, 67 F.3d 1470, 1478 (9th Cir.1995) (internal citations and quotations omitted). In the Ninth Circuit, a federal court applying state law must utilize the tools of statutory interpretation prescribed by the relevant state supreme court. See Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1114 n. 7 (9th Cir.2003) (applying interpretive framework announced by Oregon Supreme Court to Oregon statute); Nike, Inc. v. McCarthy, 379 F.3d 576, 581 n. 4 (9th Cir.2004) (same).

The California Supreme Court has set forth the following principles of statutory construction:

Under settled canons of statutory construction, in construing a statute we ascertain the Legislature’s intent in order to effectuate the law’s purpose. We must look to the statute’s words and give them their usual and ordinary meaning. The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous. If the words in the statute do not, by themselves, provide a reliable indicator of legislative intent, statutory ambiguities often may be resolved by examining the context in which the language appears and adopting the construction which best serves to harmonize the statute internally and with related statutes. [¶]... ] If the statute is ambiguous, we may consider a variety of extrinsic aids, including legislative history, the statute’s purpose, and public policy.

People v. Arias, 45 Cal.4th 169, 177, 85 Cal.Rptr.3d 1,195 P.3d 103 (2008) (internal citations and quotations omitted). “To determine the most reasonable interpretation of a statute, we look to its legislative history and background.” Goodman v. Lozano, 47 Cal.4th 1327, 1332, 104 Cal.Rptr.3d 219, 223 P.3d 77 (2010).

I turn to the task of construction.

3. Plain meaning¹⁴

One difficulty in ascertaining the statute’s plain meaning is that the lay dictionaries commonly consulted by this court, such as Webster’s (1976 & 2012) and the Oxford English Dictionary (2012), do not define the term “law firm.” Black’s Law Dictionary (9th Ed.2010) defines “attorney” as “one who is designated to transact business for another; a legal agent,” and “[a] person who practices law.” Black’s defines “law firm” as “[a]n association of lawyers who practice law together, usu. sharing clients and profits, in a business organized traditionally as a partnership but often today as either a professional corporation or a limited-liability company.” Id, That is, “attorney” refers to a single individual “who practices law,” while “law firm” refers to multiple individuals “who practice law together.” Id.

2. Statutory context

This distinction — between the singular noun “attorney” and the collective noun “law firm” — is reinforced by examining related statutes and regulations. To begin with, the terms “attorney” and “lawyer” appear to be largely synonymous under California law.¹⁵ California Rule of Professional Conduct 1 — 100(B)(3) “lawyer” as, among other things, “a member of the State California. ...” By contrast, Rule of Professional 1 — 100(B)(1) defines “law firm” as:

(a) two or more lawyers whose activities constitute the practice of law, and who share its profits, expenses, and liabilities; or

(b) a law corporation which employs more than one lawyer; or

(c) a division, department, office, or group within a business entity, which includes more than one lawyer who performs legal services for the business entity; or

(d) a publicly funded entity which employs more than one lawyer to perform legal services.¹⁶

Straightforwardly then, “lawyer” and “law firm” mean different things: the former is a single individual (“a member”), while the latter is a collection of multiple individuals (“two or more lawyers,” “more than one lawyer”). This distinction is reinforced by definitions of the term “lawyer” in Cal. Bus. & Prof.Code §§ 6157 (addressing legal advertising) and 6175 (addressing provision of financial services by lawyers). These definitions are nearly identical to that in the Rules of Professional Conduct, except that they contain the addendum, “includes any agent of the lawyer or law firm or law corporation doing business in the state.” This addendum further reinforces the notion that “lawyers” and “law firms” are distinct concepts.¹⁷

Finally, to imply or presume an exception for “law firms” into the statute would run afoul of “the familiar rule of construction, expressio unius est exclusio alterius, where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed.” Wildlife Alive v. Chickering, 18 Cal.3d 190, 195, 132 Cal.Rptr. 377, 553 P.2d 537 (1976).

To summarize, the terms “attorney” and “law firm” have different meanings under relevant provisions of California law, strongly suggesting that the section 1788.2(c) definition of “debt collector” includes law firms.

4. Legislative history and public policy

The legislative history of the Rosenthal Act gives no indication of whether “law firms” are included in the term “attorney” under Cal. Civ.Code § 1788(c).

But the legislative history of a related statutory provision — Cal. Bus. & Prof. Code § 6077.5 — indicates that the terms are distinct. The latter statute, enacted seven years after the Rosenthal Act, requires an attorney, and “his or her¹⁸ employees who are employed primarily to assist in the collection of a consumer debt”, to comply with both the Rosenthal Act and certain other enumerated debt collection practices. Violators are subject to discipline by the State Bar of California, rather than by private action. Cal. Bus. & Prof.Code § 6077.5(i). The legislative history of section 6077.5 provides that “[t]he purpose of this bill is to ensure that attorneys comply with fair debt collection practices when collecting consumer debts. This bill is the result of negotiations between the State Bar and the collection agency industry following an ongoing dispute as to the extent of the attorney exemptions from the [Rosenthal Act.]” California Assembly Office of Research, Concurrence in Senate Amendments (AB 1252 (Calderon)), May 3, 1984, at 1. In other words, the Rosenthal Act’s “attorney” exemption does not leave attorneys unregulated; they are instead regulated by the State Bar of California. As there is no similar, alternative' regulatory regime for “law firms,” to exempt them would undermine the public policy articulated in Cal. Civ.Code § 1788.1(b): “to prohibit debt collectors from engaging in unfair or deceptive acts or practices in the collection of consumer debts.”

5. Conclusion

Given the above, the court finds that the “attorney” exemption from the definition of “debt collector” under the Rosenthal Act does not extend to “law firms.”

Therefore, U.S. Bank’s motion to dismiss the Rosenthal Act claims on the grounds that Nelson & Kennard is not a “debt collector” will be denied.

E. Has plaintiff stated a claim under 15 U.S.C. § 1692d?

The SAC alleges that, by erroneously suing plaintiff, taking his default judgment, recording a lien against his home, failing to voluntarily vacate the judgment against him, and opposing his motion to do the same, defendants violated 15 U.S.C. § 1692d. (SAC ¶¶ 42, 48, 59.)

Section 1692d forbids debt collectors from engaging “in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” The statute provide illustrative examples of such conduct, including threats of violence, the use of obscene or abusive language, the publishing of lists of consumers who refuse to pay debts, and repeated phone calls with intent to annoy, abuse, or harass. Id.

U.S. Bank argues that the allegations against it do not meet the standards for conduct “the natural consequence of which is to harass, oppress, or abuse.” (Mot. to Dismiss 10-12.)

Plaintiff fails to make any legal argument in opposition, instead merely maintaining that the facts he alleges are sufficient to state a claim under 15 U.S.C. § 1692d. He calls particular attention to defendants’ failure to vacate the erroneous judgment, and their opposition to his motion, as instance of harassing, oppressive, or abusive conduct.

In construing 15 U.S.C. § 1692d the Ninth Circuit has held that: “[I]f the least sophisticated debtor would ‘likely be misled’ by a communication from a debt collector, the debt collector has violated the Act.” Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 934 (9th Cir.2007) (quoting Swanson v. S. Oregon Credit Serv., 869 F.2d 1222, 1225 (9th Cir.1988)).¹⁹

Plaintiff does not allege that defendants sued him, took his default, and placed a lien on his property for reasons other than a mistaken belief that he owed the subject debt. If defendants had sued the right party, these would have been legal means to collect on a debt. As such, absent other facts, they cannot be interpreted as steps taken to harass, oppress, or abuse plaintiff. On the other hand, a jury could find that defendants’ failure to vacate the judgment, once they were informed of their error, was abusive.

Accordingly, the court will dismiss plaintiffs claim under 15 U.S.C. § 1692d, except as it relates to the failure of the bank to vacate the judgment.

F. Is U.S. Bank’s conduct protected by the litigation privilege?

U.S. Bank maintains that plaintiffs claims for negligence, libel, and Rosenthal Act violations are barred by California’s litigation privilege.

1. Definition of litigation privilege

Cal. Civ.Code § 47(b) sets forth the litigation privilege. According to Witkin, the statute “provides a privilege for a publication or broadcast in [inter alia ] a legislative or judicial proceeding.... The usual application of the statute is in defamation actions. But it has been invoked in other proceedings.” 5 Witkin, Summary of Cal. Law, Torts, § 186, p. 317 (10th ed. 2005). “The purposes of section 47, subdivision (b), are to afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions.... To further these purposes, the privilege has been broadly applied.” Jacob B. v. Cnty. of Shasta, 40 Cal.4th 948, 956, 56 Cal.Rptr.3d 477, 154 P.3d 1003 (2007) (internal citations and quotations omitted). “The privilege is now held applicable to ... all torts except malicious prosecution.” Silberg v. Anderson, 50 Cal.3d 205, 212, 266 Cal.Rptr. 638, 786 P.2d 365 (1990).

2. Negligence & litigation privilege

The SAC alleges that U.S. Bank was negligent in suing plaintiff for a debt he did not owe, taking his default judgment, placing a lien on his property, and failing to timely vacate the default judgment once it was informed of its error. (SAC ¶¶ 60, 71-72.)

U.S. Bank moves to dismiss this claim on the grounds that the litigation privilege bars all tort causes of action except malicious prosecution. (Mot. to Dismiss 12.) Plaintiff counters that he is suing based upon an action — U.S. Bank’s decision to sue him, the incorrect party— rather than a protected communication. (Opposition 18.)

The California Supreme Court has repeatedly held that “the policy of encouraging free access to the courts was so important as to require application of the privilege to torts [beyond] defamation,” including negligence. Silberg v. Anderson, 50 Cal.3d at 215, 266 Cal.Rptr. 638, 786 P.2d 365 (1990) (citing Albertson v. Raboff, 46 Cal.2d 375, 381, 295 P.2d 405 (1956)). The privilege is held to be “absolute” in that it encompasses even communications motivated by actual malice or the intent to do harm. See Pettitt v. Levy, 28 Cal.App.3d 484, 489, 104 Cal.Rptr. 650 (1972) (sustaining demurrer where defendants allegedly conspired to file a false or forged building permit, which in turn lured plaintiffs into making and losing a substantial business investment). It follows that the privilege bars actions for simple negligence, such as plaintiff is alleging.

Plaintiffs contention that he is suing based on an action (deciding to name him as a defendant), rather than a protected communication (actually naming him as a defendant), cannot prevail. The filing of every lawsuit is preceded by decisions about whom to sue, which facts and claims to plead, etc. To make these decisions actionable, as plaintiff urges, would simply eviscerate the litigation privilege.

Accordingly, the court will dismiss plaintiffs negligence claim without leave to amend.

3. Libel & litigation privilege

The SAC also alleges a cause of action for libel, asserting that U.S. Bank defamed plaintiff by suing him for a debt he did not owe, recording the ensuing judgment, and allowing the judgment to remain in place even after learning of its error. (SAC ¶¶ 60, 75.)

Libel is the canonical tort barred by the litigation privilege. See Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., 42 Cal.3d 1157, 1163, 232 Cal.Rptr. 567, 728 P.2d 1202 (1986) (“The privilege recognized by section 47(2) ... was primarily designed to limit an individual’s potential liability for defamation”). The privilege extends to post-judgment collection activity — even attempts to enforce invalid judgments. See, e.g., Brown v. Kennard, 94 Cal.App.4th 40, 113 Cal.Rptr.2d 891 (2001) (sustaining demurrer, on the basis of litigation privilege, to complaint alleging that defendant wrongfully levied on legally-exempt assets of a non-party to an invalid judgment).

Given the scope of the litigation privilege, the court will dismiss plaintiffs cause of action for libel without leave to amend.

4. Rosenthal Act & litigation privilege

The California Supreme Court has not ruled on the issue of whether the litigation privilege bars Rosenthal Act claims founded on unfair debt collection practices that occur during the course of litigation.

Other courts have split on the issue. At least four courts have held that the privilege supercedes the Rosenthal Act: Taylor v. Quall, 458 F.Supp.2d 1065, 1068-69 (C.D.Cal.2006) (Anderson, J.); Nickoloff v. Wolpoff & Abramson, L.L.P., 511 F.Supp.2d 1043, 1045 (C.D.Cal.2007) (Rafeedie, J.); Lopez Reyes v. Kenosian & Miele, LLP, 525 F.Supp.2d 1158, 1161-1165 (N.D.Cal.2007) (Jenkins, J.); Cassady v. Union Adjustment Co., No. C07-5405, 2008 WL 4773976, 2008 U.S. Dist. LEXIS 90700 (N.D.Cal. Oct. 27, 2008) (Illston, J.). At least seven courts have reached the opposite conclusion: First N. Am. Nat. Bank v. Superior Court, No. B176618, 2005 WL 67123, 2005 Cal.App. Unpub. LEXIS 356 (Cal.Ct.App. Jan. 13, 2005); Oei, 486 F.Supp.2d at 1089 (Morrow, J.); Butler v. Resurgence Fin., LLC, 521 F.Supp.2d 1093, 1095-97 (C.D.Cal.2007) (King, J.); Mello v. Great Seneca Fin. Corp., 526 F.Supp.2d 1024, 1031 (C.D.Cal. 2007) (Gutierrez, J.); Sial v. Unifund CCR Partners, No. 08 CV 0905, 2008 WL 4079281, 2008 U.S. Dist. LEXIS 66666 (SJD.Cal. Aug. 28, 2008) (Miller, J.); Welker v. Law Office of Horwitz, 626 F.Supp.2d 1068, 1072 (S.D.Cal.2009) (Gonzalez, J.); Komarova, 175 Cal.App.4th at 324, 95 Cal. Rptr.3d 880.

I am unable to discern any rule that would reconcile the decisions holding that the litigation privilege bars Rosenthal Act claims from those which reach the opposite conclusion. For example, the plaintiffs in Taylor, 458 F.Supp.2d 1065, and in Mello, 526 F.Supp.2d 1024, each alleged that they were sued on time-barred debts. Yet only the former holds that the litigation privilege bars Rosenthal Act claims.

What is notable is that since the issuance of Komarova — i.e., the sole published decision by a California appellate court to address this issue — not a single federal court has found Rosenthal Act claims to be barred by the litigation privilege.

Komarova’s holding is based on two principles. First, the rule of statutory construction “that, in cases of irreconcilable conflict, the specific statute prevails over the general one.” Id. at 338, 95 Cal.Rptr.3d 880 (quoting Oei, 486 F.Supp.2d at 1100). The Rosenthal Act is the more specific statute, as “[t]he privilege is implicated in all judicial and quasi-judicial proceedings and the Act is implicated in only the small subset of those proceedings that involve collection of consumer debts.” Id. at 339, 95 Cal.Rptr.3d 880. Second, Komarova makes clear the “ease with which the Act could be circumvented if the litigation privilege applied. In that event, unfair debt collection practices could be immunized merely by filing suit on the debt.” Id. at 340, 95 Cal. Rptr.3d 880.

I find the reasoning of Komarova persuasive. The litigation privilege does not bar plaintiffs claims under the Rosenthal Act.

G. Is plaintiffs cause of action for malicious prosecution cognizable?

The SAC alleges a cause of action for malicious prosecution, based on U.S. Bank’s opposition to plaintiffs motion to vacate the default judgment against him. (SAC ¶¶ 48, 50, 58, 81.)

“Although the tort is usually called ‘malicious prosecution,’ the word ‘prosecution’ is not a particularly apt description of the underlying civil action. The Restatement [2d, Torts] uses the term ‘wrongful use of civil proceedings’ to refer to the tort.” 5 Witkin, Summary of Cal. Law, Torts, § 486, p. 711 (10th ed. 2005).

“To establish a cause of action for the malicious prosecution of a civil proceeding^] a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in ... plaintiffs favor; (2) was brought without probable cause; and (3) was initiated with malice. Zamos v. Stroud, 32 Cal.4th 958, 965-66, 12 Cal.Rptr.3d 54, 87 P.3d 802 (2004) (quoting Bertero v. Nat’l Gen. Corp., 13 Cal.3d 43, 50, 118 Cal.Rptr. 184, 529 P.2d 608 (1974)).” Malicious prosecution “includes continuing to prosecute a lawsuit discovered to lack probable cause____” Id. at 969, 12 Cal.Rptr.3d 54, 87 P.3d 802.

U.S. Bank moves to dismiss this claim on various grounds. (Mot. to Dismiss 13-15.) The first is that it had probable cause for initiating the Collection Action based on similarities in the home address, name, ethnicity, and age between plaintiff and Khoa T. Vo. At best, this argument requires findings of fact only appropriate for a later stage of litigation. Plaintiff has adequately alleged that U.S. Bank’s opposition was commenced without probable cause “because [defendants] admitted that plaintiff was not liable for the debt.” (SAC ¶¶ 50, 58.)

U.S. Bank’s second ground for dismissal, that plaintiff failed to adequately plead malice, requires more consideration. “The malice required in an action for malicious prosecution is not limited to actual hostility or ill will toward plaintiff but exists when the proceedings are instituted primarily for an improper purpose.” Albertson, 46 Cal.2d at 382, 295 P.2d 405. Examples of an “improper purpose” are “(1) the person initiating the [proceedings] does not believe that his claim may be held valid; (2) the proceedings are began primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; [or] (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim.” Id (quoting Restatement (Second) of Torts § 676, cmt. c.)

The SAC alleges that U.S. Bank opposed plaintiffs motion to vacate, “requesting instead that the Court simply allow U.S. Bank to amend the pleadings and judgment, which amendment would propose to remove Plaintiffs (Huy Thanh Vo) name from the court records.” (SAC ¶ 47.)

U.S. Bank’s opposition to the Motion to Vacate is not before the court. But accepting plaintiffs characterization as true, it appears that the SAC fails to plead facts sufficient to state a claim for malice. U.S. Bank was trying to keep its judgment in place, with Khoa T. Vo substituted in as the liable party. Even if U.S. Bank had prevailed, plaintiff would presumably still have been relieved of liability, the default judgment against him vacated, and the lien on his property released. None of this is consistent with the examples of an “improper purpose” under Albertson.

Accordingly, the court will dismiss plaintiffs cause of action for malicious prosecution.

H. Is the Second Amended Complaint subject to the Rooker-Feldman doctrine?

U.S. Bank argues that this court lacks subject matter jurisdiction over plaintiffs claim by virtue of the Rooker-Feldman doctrine. That assertion fails.

1. Standard

The Rooker-Feldman doctrine derives from the Supreme Court’s decisions in Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). According to the Ninth Circuit, “the following general formulation describes the distinctive role of the Rooker-Feldman doctrine in our federal system: If a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that decision, Rooker-Feldman bars subject matter jurisdiction in federal district court.” Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir.2003). The district court is also barred from hearing any issues raised in the federal suit that are “inextricably intertwined” with issues resolved in the state court decision. Id at 1158. “If, on the other hand, a federal plaintiff asserts as a legal wrong an allegedly illegal act or omission by an adverse party, Rooker-Feldman does not bar jurisdiction.” Id. at 1164. Thus, Rooker-Feldman only applies if “the federal plaintiff both asserts as her injury legal error or errors by the state court and seeks as her remedy relief from the state court judgment.” Vacation Village, Inc. v. Clark Cnty., 497 F.3d 902, 911 (9th Cir.2007) (quoting Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 2004)).

2. Application

Plaintiff “asserts as a legal wrong an allegedly illegal act”: that defendants sued him for a debt he did not owe. Plaintiff is not seeking relief from a state court judgment. The Sacramento County Superior Court has already vacated the judgment against him. As plaintiff correctly notes, “[T]here is not even a lower court judgment ... to complain about or seek relief from — since the lower court judgment was vacated as to Plaintiff by the same court that issued it. Rather, Plaintiff seeks to recover from injuries sustained as a result of Defendants’ statutory violations and negligence when they wrongfully sued him____” (Opposition 14.)

As for U.S. Bank’s argument that the issues raised herein are “inextricably intertwined” with a state court judgment (Mot. to Dismiss 16), defendant again ignores the fact that there is no underlying state court judgment.

Accordingly, the Rooker-Feldman doctrine does not bar the court from exercising subject matter jurisdiction over this case.

I. Has plaintiff waived his right to obtain monetary relief by failing to seek relief in state court?

U.S. Bank argues that plaintiff has waived his right to monetary relief in this action by failing to seek remedies available in the California courts under state law.

U.S. Bank identifies CaLCode Civ. Proc. §§ 128.5 (allowing sanctions for “bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay”), 128.7 (the California counterpart to Rule 11), and 473(e)(1) (allowing monetary penalties and other relief on relief from default judgment) as statutes under which plaintiff could have proceeded. In support of its position, U.S. Bank cites Cal. Civ. Code § 3513 and McDermott v. Superior Court, 6 Cal.3d 693, 698 n. 3, 100 Cal.Rptr. 297, 493 P.2d 1161 (1972). U.S. Bank’s position is without merit.

Cal. Civ.Code § 3513 sets forth a maxim of jurisprudence (“Any one may waive the advantage of a law intended solely for his benefit”), not a statutory basis for a waiver claim. McDermott, 6 Cal.3d at 698 n. 3, 100 CaLRptr. 297, 493 P.2d 1161, provides a definition of waiver under California law, “the intentional relinquishment of a known right with knowledge of the facts.”

But U.S. Bank has provided no basis for concluding that plaintiff waived his right to seek monetary relief in this action by failing to seek sanctions or penalties under the cited Code sections. These provisions provide one form of remedy for certain wrongs alleged by plaintiff; the FDCPA and the Rosenthal Act provide other forms of remedy. Plaintiff is not estopped from seeking the latter because he did not seek the former. Congress and the California legislature were fully aware that parties seeking to collect a debt might misuse the state courts. For example, the FDCPA explicitly requires debt collectors to bring collection actions in the proper venue. 15 U.S.C. § 1692L Yet neither the FDCPA nor the Rosenthal Act requires parties who have experienced improper litigation tactics to move for judicial sanctions before initiating suit. In fact, numerous reported decisions allow direct recovery for unlawful debt-collection-related litigation tactics. See, e.g., McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939 (2011) (affirming summary judgment under FDCPA, and jury award of $311,000 under FDCPA and state-law causes of action, against law firm which sued on time-barred debt); Komarova, 175 Cal.App.4th at 324, 95 Cal. Rptr.3d 880 (affirming jury award of $197,905 for violations of Rosenthal Act against debt collector which, among other things, obtained a default arbitration award against the wrong defendant and sought to confirm the award in state court).

U.S. Bank’s motion to dismiss the SAC on the basis of waiver is therefore denied.

IV. CONCLUSION

The court hereby orders as follows:

U.S. Bank’s motion to dismiss the Second Amended Complaint for lack of subject matter jurisdiction is DENIED.

Plaintiffs FDCPA and Rosenthal Act claims are DISMISSED without prejudice to the extent they are premised on violations of 15 U.S.C. § 1692d, except as any alleged violations relate to defendants’ failure to vacate the judgment against plaintiff. In all other respects, U.S. Bank’s motion to dismiss plaintiffs claims under the FDCPA and the Rosenthal Act is DENIED.

Plaintiffs claim for malicious prosecution is DISMISSED without prejudice.

Plaintiffs claims for negligence and libel are DISMISSED with prejudice.

Plaintiff is DIRECTED to file a Third Amended Complaint in accordance with this order no more than 21 days after its entry.²⁰

IT IS SO ORDERED.

Notes

1 . Nelson & Kennard filed an Answer on February 25, 2013. (ECF No. 27.)

2 . Plaintiff's allegations are taken as true for purposes of resolving a motion to dismiss. Erickson v. Pardus, 551, U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).

3 . Citing Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955, Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) ("[wjhat Rule 12(b)(6) does not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations”), and Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ("it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test” under Rule 12(b)(6)).

4 . Twombly imposed an apparently-new "plausibility" gloss on the previously well-known Rule 8(a) standard, and retired the long-established "no set of facts” standard of Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), although it did not overrule that case outright. See Moss v. U.S. Secret Service, 572 F.3d 962, 968 (9th Cir.2009) (the Twombly Court "cautioned that it was not outright overruling Conley ...,” although it was retiring the "no set of facts” language from Conley ). The Ninth Circuit has acknowledged the difficulty of applying the resulting standard, given the "perplexing” mix of standards the Supreme Court has applied in recent cases. See Starr v. Baca, 652 F.3d 1202, 1215 (9th Cir.2011) (comparing the Court's application of the "original, more lenient version of Rule 8(a)” in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) and Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam), with the seemingly "higher pleading standard” in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005), Twombly and Iqbal), rehearing en banc denied, 659 F.3d 850 (October 5, 2011). See also Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir.2011) (applying the "no set of facts” standard to a Section 1983 case).

5 . The California Supreme Court has not addressed the question. “Where the state’s highest court has not decided an issue, the task of the federal courts is to predict how the state high court would resolve it. In answering that question, this court looks for ‘guidance’ to decisions by intermediate appellate courts of the state and by courts in other jurisdictions.” Giles v. Gen. Motors Acceptance Corp., 494 F.3d 865, 872 (9th Cir.2007) (quoting Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir.1986) (as amended)).

6 . For example, "any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or at tempting to collect such debts” is considered a "debt collector.” 15 U.S.C. § 1692a(6).

7 . Research has failed to uncover a published Ninth Circuit opinion addressing this question. Whether the Seventh Circuit’s benign opinion on the efficacy of competition to restrain collection practices reflects reality need not be resolved in this case.

8 . Because the outcome of the motion is not dictated by the out-of-circuit cases, they are not considered in further detail.

9 . As noted by this court in Newman v. Check-rite California, Inc., 912 F.Supp. 1354, 1370 n. 19 (E.D.Cal.1995) (applying general agency principles to conclude that defendant could be held vicariously liable for its law firm's FDCPA violations), "Federal statutes creating tort liability [such as the FDCPA] have traditionally required the development of federal common law to fill in the interstices of the statute.”

10 . In Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 130 S.Ct. 1605, 1622, 176 L.Ed.2d 519 (2010) (holding that attorneys may not avail themselves of the "bona fide error” defense under the FDCPA for their mistakes of law), the Supreme Court noted that "a lawyer's interest in avoiding FDCPA liability may not always be adverse to her client. Some courts have held clients vicariously liable for their lawyers' violations of the FDCPA," citing Fox, 15 F.3d at 1516, for the latter proposition.

11 . These decisions largely rest on the premise that to hold a non-"debt collector” vicariously liable under the FDCPA "would [not] accord with the intent of Congress, as manifested in the terms of the Act Wadlington, 76 F.3d at 108.

12 . The term "person” means "a natural person, partnership, corporation, limited liability company, trust, estate, cooperative, association or other similar entity.” Cal. Civ.Code § 1788.2(g).

13 . Research has failed to uncover any other opinion of the California courts, published or unpublished, that addresses this question.

14 . The California Supreme Court consults both lay and legal dictionaries in construing ' the plain meaning of statutes. See, e.g., In re Ethan C., 54 Cal.4th 610, 627, 143 Cal. Rptr.3d 565, 279 P.3d 1052 (2012) (examining Oxford English Dictionary and Black’s Law Dictionary to construe the word "neglect”).

15 . Cal. Bus. & Prof.Code § 6067 provides that "[e]veiy person on his admission [to the practice of law in California] shall take an oath to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability.” A more specialized statute, Cal. Bus. & Prof.Code § 6180.14 (addressing cessation of practice of law) provides that attorney means “a member or former member of the State Bar." And according to a leading treatise on California law, “The title 'attorney' is understood to be synonymous with ... ‘lawyer.’ ” 7 Cal. Jur.3d, Attorneys at Law § 1 (2011).

16 . The California Code does not appear to define the term “law firm.”

17 . It also bears mention that many California statutes distinguish between “attorneys” and "law firms,” further suggesting that the state legislature does not view the former as encompassing the latter. See, e.g., Cal. Bus. & Prof.Code § 6450(a) (“ ‘Paralegal’ means a person who [inter alia ] either contracts with or is employed by an attorney, law firm, corporation, governmental agency, or other entity ...”); Cal. Pub. Cont.Code § 10353.5(c)(4) (" ‘Contract for legal services’ shall include any contract between a state agency and any law firm, professional corporation, law firm partnership, or individual attorney to perform legal work ...”).

18 . Again, note the singular pronoun.

19 . But this least sophisticated debtor standard does not apply in instances where debtors are represented by attorneys. Id. at 935. "The rationale behind this rule is clear. Unsophisticated consumers are easily bullied and misled. Trained attorneys are not.” Id.

20 . The SAC and plaintiff's Opposition repeatedly miscite federal statutes. Specifically, 15 U.S.C. § 1692d is miscited as 15 U.S.C. § 1692(d) (See, e.g., SAC ¶ 42, 49; Opposition 12), 15 U.S.C. § 1692e is miscited as 15 U.S.C. § 1692(e) (See, e.g., SAC ¶¶ 17, 18, 21, 24), and 15 U.S.C. 1692f is miscited as 15 U.S.C. § 1692(f) (See, e.g., SAC ¶¶ 29, 30, 31). Plaintiff is cautioned to cite accurately in any future filings.

Case Details

Case Name: Huy Thanh Vo v. Nelson & Kennard

Court Name: District Court, E.D. California

Date Published: Mar 15, 2013

Citations: 931 F. Supp. 2d 1080; 2013 WL 1091207; 2013 U.S. Dist. LEXIS 36323; No. CIV. S-12-2537 LKK/CKD

Docket Number: No. CIV. S-12-2537 LKK/CKD

Court Abbreviation: E.D. Cal.