Plaintiff, a San Francisco resident, brought suit alleging five causes of action against the Defendant, a debt collection agency located in Riverside County, California, in connection with Defendant's efforts to collect on debts owed by Plaintiff for patient care at San Francisco General Hospital. Plaintiff alleges: (1) violation of the Rosenthal Fair Debt Collection Practices Act (California Civil Code § 1788 et seq.); (2) violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692; (3) an invasion of privacy; (4) tort-in-se; and (5) violation of Cal. Business and Professions Code § 17200 et seq. Plaintiff Ruby Joseph (hereinafter referred to as "Joseph" or "Plaintiff") sought injunctive relief, restitution and damages.
STATEMENT OF FACTS
Sometime prior to March 1999, plaintiff Ruby Joseph, physically disabled, sought and received medical services from San Francisco General Hospital, owned and operated by the City and County of San Francisco. Joseph is not indigent. Joseph incurred debt at San Francisco General Hospital in the amount of $ 2,356.62. Joseph's debt was assigned to a debt collection agency, CODAR, Inc., d/b/a J.J. Mac Intyre Company.
In March 1999, Defendant began sending collection letters to Joseph in an attempt to collect interest on and the principal debt owed by her. In addition to collection letters, Defendant also used an automated dialing system with a pre-recorded voice to call Joseph. Joseph alleges that through this system, Defendant called Joseph at odd hours and as often as three times a day over a year and a half period, even though Joseph had begun making $50 monthly payments towards her debt.
The Court addresses each of plaintiff Joseph's claims.I. Collection of Interest
Plaintiff alleges that Defendant impermissibly attempted to collect interest on her county hospital debt, in violation of California Civil Code § 1788.13(e) n1 and § 1692f(1) n2 of the FDCPA. Plaintiff argues that as a county hospital, San Francisco General may not collect interest on debts under California Welfare and Institutions Code § 17401. Defendant counters that § 17401 is inapplicable to Plaintiff because it pertains only to the collection of liens by a county for hospital services provided to indigent patients. The issue appears to be one of first impression.
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n1 Civil Code § 1788.13(e),
part
of
the Rosenthal Fair Debt Collection Practices Act (hereinafter
"Rosenthal
Act") prohibits debt collection by means of "The false representation
that
the consumer debt may be increased by the addition of attorney's fees,
investigation fees, service fees, finance charges, or other charges if,
in fact, such fees or charges may not legally be added to the existing
obligation."
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...The Court finds § 17401 does not bar the collection of interest on the debt owed by Plaintiff and therefore dismisses Plaintiff's claims that Defendant violated § 1788.13(e) of the Rosenthal Act and § 1692f(1) of the FDCPA by impermissibly collecting interest.
II. Meaningful Disclosure of Caller's Identity
Plaintiff alleges that Defendant violated California Civil Code § 1788.11(d) by communicating with Plaintiff using a false name and violated 15 U.S.C. § 1692d(6) by failing to meaningfully disclose its identity. Defendant argues that Plaintiff cannot make out a claim for violations of either § 1692 or § 1788 based upon Defendant's phone operator's use of aliases. Under the Rosenthal Act, no debt collector can attempt to collect a debt by "any communications with the debtor other than in the name either of the debt collector or the person on whose behalf the debt collector is acting." § 1788.13(a). Similarly, the FDCPA prohibits conduct by a debt collector which has the natural consequence of harassing, oppressing or abusing any person in connection with the collection of a debt, including specifically "the placement of telephone calls without meaningful disclosure of the caller's identity." § 1692d(6).
<>At the hearing herein, both parties agreed that under § 1788.13(a) and § 1692d(6), Defendant's employees, whether they use a "desk name" or not, were required to identify that they were either representing the debt collector or the person on whose behalf the debt collector is acting (SF General Hospital). See Wright v. Credit Bureau of Georgia, Inc. 548 F. Supp. 591 ("The 'meaningful disclosure' required by section 1692d(6) has been made if an individual debt collector who is employed by a debt collection company accurately discloses the name of her employer and the nature of her business and conceals no more than her real name."). At this point, the Court must deny Defendant's motion to dismiss Plaintiff's claims under § 1788.11(d) and § 1692d(6) because the complaint alleges that the required identifications were not made. Plaintiff alleges that an employee of Defendant called using the alias "Judy Green" without otherwise disclosing that she represented the debt collector or SF General Hospital. If true, this allegation would violate § 1788.11(d) and § 1692d(6).Defendant proffers phone records and declarations from its long distance carrier, Express Tel, to substantiate that it never called the Plaintiff before 8:00 a.m. or after 9:00 p.m., which are the hours during which 15 U.S.C. § 1692c(a)(1) prohibits debt collection calls. In light of the phone records, Plaintiff concedes that it cannot claim that off-hours phone calls were made in violation of § 1692c(a)(1). The Court therefore grants Defendant's motion for summary judgment regarding claims under 15 U.S.C. § 1692c(a)(1) based upon off-hour phone calls.
IV. Repeated Phone Calls with Intent to Harass or Annoy
Plaintiff alleges that Defendant violated Civil Code § 1788.11(d), § 1788.11(e) and 15 U.S.C. § 1692d(5) by repeatedly and continuously calling Plaintiff with the intent to annoy, abuse, and harass Plaintiff. The Rosenthal Act prohibits "causing a telephone to ring repeatedly or continuously to annoy the person called," and "communicating, by telephone or in person, with the debtor with such frequency as to be unreasonable and to constitute an harassment to the debtor under the circumstances." The FDCPA likewise prohibits "causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number." Section 1692d(5).
Whether there is actionable harassment or annoyance turns not only on the volume of calls made, but also on the pattern of calls. In Bingham v. Collection Bureau, Inc. 505 F. Supp. 864 (N.D. 1981), the court held that when a call was terminated and the collection agency called back immediately, that subsequent call alone could constitute harassment under § 1692d(5) regardless of the content of the call. In Kuhn v. Account Control Technology, Inc. 865 F. Supp. 1443 (D.Nev. 1994), the court found that six phone calls in a span of 24 minutes constituted harassment in violation of § 1692d(5).
Moreover, claims under the FDCPA are evaluated under a least sophisticated consumer standard. Jeter v. Credit Bureau, Inc. 760 F.2d 1168 (11th Cir. 1985) ("We hold that claims under § 1692d should be viewed from the perspective of a consumer whose circumstances makes him relatively more susceptible to harassment, oppression, or abuse."); Baker v. G.C. Services Corp, 677 F.2d 775 (9th Cir. 1982) (applying a least sophisticated consumer standard in evaluating deceptive written communication under § 1692g(a)(3)). The Plaintiff in this case is a physically disabled senior citizen. Thus, Plaintiff's circumstances may make her "relatively more susceptible to harassment, oppression, or abuse."
In view of the applicable legal standard, the Court finds there are triable issues of fact regarding Plaintiff's claims under Civil Code § 1788.11(d), § 1788.11(e) and 15 U.S.C. § 1692d(5). Defendant acknowledges that it made nearly 200 calls to the Plaintiff over a nineteen-month period. Moreover, on some days there were multiple calls made after voice contact in which the Plaintiff requested no further calls be made. For example, Defendant's phone records indicate that on June 13, 2001, at 8:00 a.m., Defendant had a heated conversation with Plaintiff for 6.6 minutes in which the phone operator noted that Plaintiff said "not to all (sic) her anymore" and "no calls." The phone records indicate that Defendant nonetheless called and left messages at 9:12 a.m. and 11:22 a.m. that same day. On January 10, 2001, Defendant called Plaintiff at 9:53 a.m., they spoke briefly, and Plaintiff hung up. Defendant called back and left two messages later that day. Plaintiff also terminated a call on April 11, 2001 at 8:02 a.m. and Defendant called back and left a message at 10:42 a.m. In light of Jeter and Baker, there is at least a triable issue of fact on these claims.
Defendant argues that the volume and frequency of calls is partly excused by the fact that Defendant was collecting on seventeen separate debts owed by the Plaintiff. Defendant cites no authority for the proposition that because it was collecting on multiple debts from the same patient, the legal standard for harassing and annoying phone calls is somehow changed; nor is such a distinction apparent from the plain language of § 1788.11(d), § 1788.11(e), and 15 U.S.C. § 1692d(5). No evidence was presented that separate calls were made for each debt, nor if such separate calls were made was any explanation given for why the calls could not have been consolidated. The Court doubts that the average consumer, much less a vulnerable consumer, would perceive, for instance, that four calls close in time from the same party in collection of four $ 500 debts is less annoying than four calls in collection of a consolidated $ 2000 debt.
Thus, the Court denies Defendant's motion for summary judgment regarding Plaintiff's claims under § 1788.11(d), § 1788.11(e), and 15 U.S.C. § 1692d(5) because there are genuine issues as to a material fact as to those claims.