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EDWIN AND KAREN HAMBERG, Plaintiffs, v. JP MORGAN CHASE
BANK, ZWICKER & ASSOCIATES, PC, and DOES 1 through 10, inclusive, Defendants.
CASE NO. 09-CV-2860 H (WMC)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
2009 U.S. Dist. Ct. Motions 299751; 2010 U.S. Dist. Ct. Motions LEXIS
24688
June 14, 2010
Motion to Dismiss
VIEW OTHER AVAILABLE CONTENT RELATED TO THIS DOCUMENT: U.S. District
Court: Motion(s); Pleading(s)
COUNSEL: [*1] GEORGE G. WEICKHARDT (SBN 58586), ANDREW J. CHO (SBN
240957), ROPERS, MAJESKI, KOHN & BENTLEY, A Professional Corporation, San Francisco,
CA, Attorneys for Defendant, CHASE BANK, USA, N.A., erroneously sued herein as JP MORGAN CHASE BANK.
JUDGES: Honorable Marilyn L. Huff
TITLE: Chase Bank Usa, 'S Reply In Support Of Motion To Dismiss And Motion To Strike
Second Amended Complaint
TEXT: I. INTRODUCTION
Plaintiffs' Opposition to Chase's Motions to Dismiss and Strike the Second Amended Complaint
("Opposition") misstates the allegations in the SAC and the law. Plaintiffs unsuccessfully attempt to
defend their claims with facts that are contradicted by the pleadings and with case authorities that,
almost without exception, do not stand for the propositions advanced or are otherwise distinguisha-
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2009 U.S. Dist. Ct. Motions 299751; 2010 U.S. Dist. Ct. Motions LEXIS 24688, *
ble or inapplicable. The Court should dismiss claims 3, 7, and 10 for the reasons stated in Chase's
Motion.
Plaintiffs, moreover, cannot cite any authority that would permit them to collect $ 1,000 in statutory damages for each alleged violation of each provision of the RFDCPA. The authorities cited in
Chase's Points and Authorities clearly establish that the maximum statutory damages that [*2]
Plaintiffs may recover in this proceeding for alleged violations of the RFDCPA is $ 1,000 per plaintiff. The Court should therefore strike all requests for relief that are not recoverable as a matter of
law.
II. ARGUMENT
Chase will address Plaintiffs' arguments in the order presented in their Opposition.
1. Claim Ten, For Invasion Of Privacy, Fails Because Plaintiffs Do Not Allege That Chase
Penetrated A Zone Of Physical Or Sensory Privacy
As Chase previously argued in Chase's Motion to Dismiss Complaint and Motion to Dismiss
FAC, Plaintiffs did not allege sufficient facts to plead a claim for invasion of privacy in the FAC.
See April 3, 2010 Order on Page 4-5. As explained below, Plaintiff have not cured any of these defects in the FAC.
Plaintiffs' Opposition does not cite any apposite cases in support of their claim for invasion of
privacy. In fact, Plaintiffs have cited the same cases they cited in their unsuccessful Opposition to
Chase's Motion to Dismiss the FAC. In Fausto v. Credigy Services Corp., 598 F. Supp. 2d 1049,
1056 (N.D. Cal. 2009), the plaintiffs alleged that the defendants refused to identify themselves and
would call the [*3] plaintiffs back immediately after having conversations with them. Here, Plaintiffs have made no such allegations against Chase.
Panahiasl v. Gurney, 2007 U.S. Dist. LEXIS 17269 at 2, is an unpublished case where the court
granted default judgment in favor of the plaintiff because the defendant "failed to appear before the
Court at several Case Management Conferences, and failed to appear at properly noticed depositions. Such failure to appear before the Court, appear for depositions, and to defend the action, gives
cause for a default judgment." Furthermore, Panahiasl involved phone calls to the plaintiff's workplace. Here, Plaintiffs do not allege that Chase called them at work.
Kuhn v. Account Control Technology is a based on Nevada law and involves alleged phone calls
to the plaintiff's workplace.
"Joseph v. J.J. Mac Intyre Cos., L.L.C., 281 F. Supp. 2d 1156, 1169" is not applicable and there
is not a page 1169 in this opinion. The plaintiff in Joseph alleged that defendant called at "odd
hours" and refused to identify itself.
Deteresa v. ABC, 121 F.3d 460, 462 (9th Cir. Cal. 1997) has nothing [*4] to do with alleged
phone calls. It involves the question of "whether a television producer violated laws against eavesdropping when he surreptitiously taped his conversation with a woman who refused to appear on his
show." Id.
Plaintiffs also cite Schulman v. Group W. Productions. Inc. for the assertion that "California
courts have long recognized this common law tort in the FDCPA/RFDCPA context and have found
repeated and continuous calls to collect on a debt give rise to a claim for intrusion upon seclusion."
Opp. at 6: 1-3. This is an entirely false description of Shulman. Shulman has nothing to do with col-
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2009 U.S. Dist. Ct. Motions 299751; 2010 U.S. Dist. Ct. Motions LEXIS 24688, *
lection phone calls. As pointed out in Chase's Motion, Shulman v. Group W. Productions, 18
Cal.4th 200 (1998) involved the television broadcast of audio and video material showing plaintiffs
being rescued from an automobile accident. Such an intrusion was actionable because the defendants entered the plaintiffs' rescue helicopter, a place where they were not permitted, and recorded
the plaintiffs' conversations with the rescue nurse. The alleged behavior in Shulman was far more
intrusive than making alleged phone calls.
Plaintiffs' [*5] also cite to Chaconas v. JP Morgan Chase Bank. Opp. at 6-7. In Chaconas,
however, the Plaintiffs alleged that the defendant had made 380 phone calls. Here, Plaintiff alleges
only 66 "contact violations", over an eight month (204 days) period, on average less than one call
every three days. SAC P 58.
The case most on point is Castellanos v. JPMorgan Chase & Co. In Castellanos, this Court analyzed and dismissed an invasion of privacy claim based on similar facts alleged in a complaint
filed by the same law firm (Doan Law). The Court concluded that "allegations of a lender calling a
debtor concerning a home equity loan extended to the debtor, especially given the current economic
climate, without more is not enough to state a claim for invasion of privacy above the speculative
level." See Castellanos v. JPMorgan Chase & Co., Case No. 09-CV-00969-H (JMA) 2009 U.S.
Dist. LEXIS 53067 at 27-28 (S.D. Cal. 2009).
Plaintiffs' Opposition claims "Defendants' reliance on Castellanos...is wholly misplaced and
blatantly attempts to dodge the central issue at hand...In Castellanos, the Plaintiff alleged nine (9)
total contacts from his mortgage provider after [*6] he sent the same a notice of Cease and Desist."
Opp. at 8. This is false. The Castellanos, "Plaintiff alleges that Defendants violated § 1692c(c) by
contacting Plaintiff over fifteen times within the span of a month after being directly notified of the
refusal to pay the debt on August 13, 2007 by the cease and desist letter. (FAC PP 82-83; 26; Ex.
B.)." Id. at 17. Furthermore, in Castellanos, the Plaintiff alleged that defendant called him in the
"early morning and late and night." Id. at 26. Here, Plaintiffs have not alleged that Chase called
them at odd hours or that the frequency of calls was any greater. Accordingly, the Court should follow its holding in Castellanos and dismiss this claim.
Plaintiffs' Opposition attempts to argue that the debt collection privilege described in Symonds
v. Mercury Sav. & Loan Ass'n, 225 Cal. App. 3d 1458 (1990) does not apply because "that privilege
may be lost if the creditor uses outrageous and unreasonable means in seeking payment." Opp. at 7.
Plaintiffs' Opposition and SAC, however, do not allege any "outrageous and unreasonable" conduct.
The SAC merely alleges in conclusory terms that Chase "often used [*7] intimidating language",
without actually alleging what language was used. Such an allegation is insufficient to allege a
claim for invasion of privacy. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (U.S. 2009) ("To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"). As the Supreme Court noted in Iqbal, "A pleading that
offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not
do.'" Iqbal also stated, "A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. Therefore, pursuant to Iqbal, in order for Plaintiffs' invasion of privacy claim to
survive, their SAC would have to state the actual allegedly outrageous language that Chase used on
the phone calls. They have not done so. Certainly, a conclusory allegation that "intimidating" language was used is, without more, insufficient to allege outrageousness.
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2009 U.S. Dist. Ct. Motions 299751; 2010 U.S. Dist. Ct. Motions LEXIS 24688, *
Plaintiffs' SAC merely alleges that the callers [*8] "would attempt to maker her feel guilty for
exercising her right to file for bankruptcy." SAC P166. Plaintiffs also allege that Mrs. Hamberg
once instructed a caller to "stop and take a deep breath." Even if these new allegations to the SAC
were true, they are not outrageous, and Plaintiffs still have not cured any deficiencies in the FAC or
stated a claim for invasion of privacy. SAC P167. Plaintiffs' SAC does not allege "that the content
of the calls and letters was offensive, that the calls arrived at odd hours of the night, or any other
facts to suggest that Defendants' contacts would be highly offensive to a reasonable person." (Order
at 4.) n1
n1 When the Court dismissed the invasion of privacy claim, the Court noted: "Plaintiffs fail,
however, to allege that Plaintiffs answered the calls, that the content of the calls and letters
was offensive, that the calls arrived at odd hours of the night, or any other facts to suggest
that Defendants' contacts would be highly offensive to a reasonable person." (Order at 4.)
Plaintiffs' SAC does not make any substantive changes to the allegations or cure any deficiencies in the FAC.
[*9]
Chase requests that the Court refer to the cases cited in its Motion regarding the limited privilege debt collectors have a to intrude into the debtor's privacy, as long as it is not done in an outrageous way. See Symonds v. Mercury Sav. & Loan Ass'n, 225 Cal. App. 3d 1458 (1990); Bundren v.
Superior Court 145 Cal.App.3d 784, 789-790 (1983); Kruse v. Bank of America 202 Cal.App.3d 38,
67 (1988); Dawson v. Associates Financial Serv. Co., 529 P.2d 104, 110 (1974); Cochran v.
Cochran, 65 Cal. App. 4th 488, 494 (1998); Yurick v. Superior Court, 209 Cal. App. 3d 1116, 1129
(1989); Arikat v. JPMorgan Chase & Co., 430 F. Supp. 2d 1013, 1019, 1021, 1028 (N.D. Cal.
2006). As stated above, Plaintiffs have not alleged that Chase acted in an outrageous manner at any
point in time.
Accordingly, the Court should again dismiss Plaintiffs' claim for invasion of privacy with prejudice.
2. The Court Must Dismiss Claims Three and Seven Because They Were Added in Violation of F.R.C.P. 15
As stated in Chase's Motion, the Order granting leave to amend was specifically limited [*10]
to curing the "highlighted deficiencies". The Court did not grant Plaintiffs leave to add entirely new
claims.
Plaintiffs have violated Federal Rule of Civil Procedure 15 by adding two new claims to their
SAC five months after they served the Complaint without a stipulation or leave of Court to add
these new claims. Plaintiffs do not allege any facts have changed since they filed their Complaint or
that Chase has made any more phone calls. Plaintiffs are simply forcing Chase to respond to faulty
pleading after faulty pleading and arbitrarily inflating their alleged damages. Accordingly, the Court
must dismiss claims Three and Seven.
B. The Court Should Strike All Requests For Non-Recoverable Statutory Damages
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2009 U.S. Dist. Ct. Motions 299751; 2010 U.S. Dist. Ct. Motions LEXIS 24688, *
Plaintiffs' Opposition contends that a motion to strike is not the appropriate mechanism for
striking requested relief that is not recoverable as a matter of law. Opp. at 10-11. They are incorrect.
This Court has in fact already stricken Plaintiffs' requests for relief that is not recoverable as a matter of law. See the April 5, 2010 Order. As this Court has shown, a motion to strike is appropriate to
address requested relief that is not recoverable as a matter [*11] of law. Wilkerson v. Butler, 229
F.R.D. 166, 172 (E.D. Cal. 2005).
As Chase argued in its Motion to Strike, Plaintiffs' requested relief is not recoverable as a matter
of law and they have impermissibly increased their requested damages without a stipulation or leave
of Court, in violation of F.R.C.P. 15. The Court should therefore strike these portions of the SAC.
Plaintiffs' Opposition incorrectly claims that Chase excluded the relevant text from the Motion.
As Chase noted in the Motion, California Civil Code § 1788.30(b) states:
...in addition to actual damages sustained by the debtor as a result of the violation, [any
debt collector shall] also be liable to the debtor only in an individual action, and his additional liability therein to that debtor shall be for a penalty...no[t] greater than one
thousand dollars.
(Emphasis added).
Rather than address the fact that the statute specifically refers to damages that may be recovered
in "an individual action", Plaintiffs highlight the fact that the statute uses the term "the violation."
Their Opposition claims: "The phrase 'as a result of the violation' contained in the language of Section [*12] 1788.30(b) illustrates that damages are not limited to the actions, but rather by the violation or violations of the RFDCPA by debt collector" Opp. at 12. The Opposition does not elaborate on this claim. In fact, the words "as a result of the violation" are used only in reference to actual
damages.
Plaintiffs' Opposition also ignores Chase's argument that section 1788.30(b) tracks the language
of 15 U.S.C. § 1692k, which limits the maximum statutory damages to $ 1,000 "in the case of any
action by an individual..." (Emphasis added). In this regard, the language of sections 1788.30 and
1692k are virtually identical and Plaintiffs are limited to a maximum statutory recovery of $ 1,000
per action under each section. Accordingly, pursuant to the text of section 1788.30(b), Plaintiffs are
only entitled to recover a maximum of $ 1,000 per action for alleged violations of the RFDCPA.
Bretana v. Int'l Collection Corp., 2010 U.S. Dist. LEXIS 27786 (N.D. Cal. Mar. 24, 2010) ("Section
1788.30(b) of the RFDCPA provides for a statutory penalty of $ 100 to $ 1,000 for debt collectors'
willful and knowing violations of its provisions." (Emphasis [*13] added)).
Plaintiffs do not dispute that it would be anomalous if the RFDCPA and the FDCPA were interpreted differently because they are virtually identical. Indeed, plaintiffs' assertion that section
1788.30 allows for damages on a per violation basis has no statutory or case law support, and the
assertion contradicts the plain reading of section 1788.30.
Plaintiffs' Opposition claims that if the Court limited statutory recovery under the RFDCPA to $
1,000 per plaintiff, this would mean that "there is absolutely no deterrent effect on rogue debt collectors if the maximum potential penalty is $ 1,000.00..." Opp. at 14: 9-14. Plaintiffs do not cite to a
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2009 U.S. Dist. Ct. Motions 299751; 2010 U.S. Dist. Ct. Motions LEXIS 24688, *
single case endorsing this argument, and they seem to ignore that a statutory penalty of $ 1,000 per
plaintiff is a significant deterrent and that the Plaintiffs may recover actual damages as well. Plaintiffs made this same argument with respect to the FDCPA in their Opposition to Chase's Motion to
Strike the FAC and the Court properly rejected it.
Plaintiffs' Opposition also claims that if the Court limited RFDCPA statutory damages to $
1,000, this would cause "deleterious effects on the Court system ... by forcing plaintiffs [*14] to
litigate multiple violations by a single debt collector in separate actions." Opp. at 14:17-21. Plaintiffs provide no authority for such an absurd scenario. More importantly, plaintiffs cannot file separate lawsuits for each alleged violation of each subsection of the FDCPA, against the same party,
for calls during the same time period, and no court would allow such a wasteful strategy. This
strategy has been rejected time and again in FDCPA cases. In Beeders v. Gulf Coast Collection Bureau, 632 F. Supp. 2d 1125, 1130 (M.D. Fla. 2009), the court held that filing multiple FDCPA actions based on similar alleged phone calls is impermissible claim splitting. Plaintiffs also made this
same argument with respect to the FDCPA in their Opposition to Chase's Motion to Strike the FAC
and the Court properly rejected it.
Further, Plaintiffs have impermissibly raised their damages request in violation of F.R.C.P. 15.
As stated in Chase's Motion, Plaintiffs' FAC sought total damages of $ 42,914.33. The SAC now
seeks $ 59,914.33. Plaintiffs' SAC has increased their alleged non-economic damages by $ 10,000,
doubled their request for damages pursuant to California Civil Code 1785.25 [*15] and added
damages relating to two new causes of action, without leave of Court. These new damage requests
must be stricken. Such amendments were not permitted by the Court's Order.
The Opposition claims "Plaintiffs did, however, have leave to amend, and thus properly increased their prayer in connection with curing their deficiencies in the FAC. This includes more
clearly stated allegations of frequent calling with intent to harass, and for invasion of privacy." Opp.
at 15. This is false. The Court did not grant Plaintiffs leave to arbitrarily increase their damage request by $ 17,000 and they cannot point to any such language in the April 5th Order.
Finally, Plaintiffs do not allege any facts have changed or any calls occurred during the time
between filing their FAC and SAC. Plaintiffs are simply attempting to harass Chase with arbitrary
damage requests and force Chase to respond to faulty pleading after faulty pleading. Plaintiffs'
gamesmanship must be put to an end.
III. CONCLUSION
For the reason stated above, the Court should dismiss claims 3, 7, and 10 with prejudice and
without leave to amend. The Court should also strike all references to non-recoverable damages
[*16] and Plaintiffs' inflated damages requests.
Dated: June 14, 2010
ROPERS, MAJESKI, KOHN & BENTLEY
By: /s/ George G. Weickhardt
GEORGE G. WEICKHARDT
ANDREW J. CHO
Attorneys for Defendant
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2009 U.S. Dist. Ct. Motions 299751; 2010 U.S. Dist. Ct. Motions LEXIS 24688, *
CHASE BANK, U SA, N.A., erroneously
sued herein as JP MORGAN CHASE
BANK
PROOF OF SERVICE
METHOD OF SERVICE
[X] First Class Mail
[] Overnight Delivery
[] Facsimile
[] E-Mail/Electronic Delivery
[] Messenger Service
[X] Via ECF
1. At the time of service I was over 18 years of age and not a party to this action and a Citizen of the
United States.
2. My business address is 201 Spear Street, Suite 1000, San Francisco, CA 94105-1667.
3. On June 14, 2010 I served the following documents:
CHASE BANK USA, N.A.'S REPLY IN SUPPORT OF MOTION TO DISMISS
AND MOTION TO STRIKE SECOND AMENDED COMPLAINT
4. I served the documents on the persons at the address below (along with their fax numbers and/or
email addresses if service was by fax or email):
Karen Spicker
Doan Law Firm
2850 Pio Pico Drive, Suite D
Carlsbad, CA 92008
Served Via ECF
Telephone: (760) 450-3333
Facsimile: (760) [*17] 720-6082
Raymond Lee, Esq.
Attorney
Zwicker & Associates P.C.
Attorneys at Law
199 South Los Robles Ave.
Suite #410
Pasadena, CA 91101
Served Via ECF
1.626.793.9703 ext. 230
1.626.793.9458 fax
mailto:RLee@zwickerpc.com
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2009 U.S. Dist. Ct. Motions 299751; 2010 U.S. Dist. Ct. Motions LEXIS 24688, *
RLee@zwickerpc.com
Robert W. Thuotte
Zwicker & Associates, PC
80 Minuteman Road
Andover, MA 01810
Served Via First Class Mail
5. I served the documents by the following means:
a. [X] Via ECF. Pursuant to the e-filing procedures for the Southern District of California (unless otherwise noted).
b. [X] By United States mail: I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses specified in item 4 and placed the envelope for collection and
mailing, following our ordinary business practices. I am readily familiar with this business's practice
for collecting and processing correspondence for mailing. On the same day that correspondence is
placed for collection and mailing, it is deposited in the ordinary course of business with the United
States Postal Service, in a sealed envelope with postage fully prepaid.
c. [] By overnight delivery: I enclosed the documents [*18] in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses in item 4. I placed
the envelope or package for collection and overnight delivery at an office or a regularly utilized
drop box of the overnight delivery carrier,
d. [] By messenger: I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed in item 4 and providing them to a messenger for service. (Separate declaration of personal service to be provided by the messenger.)
e. [] By fax transmission: Based on an agreement between the parties and in conformance with
Fed. Rules Civ. Proc. rule 5, and/or as a courtesy, I faxed the documents to the persons at the fax
numbers listed in item 4. (Separate Proof of Transmission by Fax to be provided.)
I am employed in the office of a member of the bar of this court at whose direction the service
was made. I certify under penalty of perjury that the foregoing is true and correct.
Date: June 14, 2010
Anna Castagnozzi Bush
Type Name Signature
/s/ [Signature]
Signature