District Court (Cal.) Orders TCPA/Rosenthal Act Claims to Arbitration

In Fischer v. Rent-A-Center, Inc., 2014 WL 3729553 (E.D.Cal. 2014), Judge England ordered a TCPA and Rosenthal Act claim to Arbitration. Judge England found the TCPA claim within the scope of the Arbitration Agreement.

Plaintiff opposes Defendant’s Motion on the grounds that Defendant has not established that its repeated calls to Plaintiff were in any way related to the loan agreement and that the purported arbitration agreement does not encompass Plaintiff’s tort-based TCPA claims for harassing telephone calls that were unrelated to the loan agreement. See generally Opp’n, ECF No. 9. Specifically, Plaintiff argues that “Defendant has not established that the reason it contacted Plaintiff was in any way related to the loan agreement. Defendant does not allege any reason for why it contacted Plaintiff. Without any explanation or evidentiary support, Defendant concludes that Plaintiff’s claims are plainly within the scope of the arbitration agreement and that all Plaintiff’s claims are arbitrable.” Id. at 6. Plaintiff states that “there are any number of reasons why Defendant would have been contacting Plaintiff that had nothing to do with the consumer loan agreement” and therefore claims that “evidentiary discovery is necessary to determine the scope and purpose for Defendant[‘s] repeated telephone calls.” Id. Plaintiff’s objections fail for two reasons. First, and most importantly, given that the delegation provision, supra, applies to questions regarding the “applicability” of the arbitration clause, the issue of whether the disputes fall within the scope of the agreement to arbitrate is also a gateway issue that the arbitrator(s), rather than the Court, must decide. Second, even if the parties’ agreement did not contain a delegation provision, Plaintiff is incorrect in her assertion that Defendant submitted no evidence establishing that “its purpose for constantly and continuously calling Plaintiff despite Plaintiff’s repeated requests to stop were in some way arising out of or related in any way to the loan agreement.” Opp’n, ECF No. 9 at 7. Defendant submitted an affidavit which states that “[Defendant] attempted to contact Plaintiff to discuss payments on the account.” ECF No. 5 at 10. However, the Court need not even look to Defendant’s moving papers and affidavit to reject Plaintiff’s argument-Plaintiff’s own Complaint contradicts her assertion. See, e.g., Compl., ECF No 1 at 3 ¶ 9 (“Within one year prior to the filing of this action, Defendant contacted Plaintiff to collect money … due or owing or alleged to be due or owing from a natural person by reason of a consumer credit transaction, which qualifies as ‘consumer debt’ ”) (emphasis added); Id. at 5 ¶ 23 (“The natural and probable consequences of Defendant’s conduct was to harass, oppress or abuse Plaintiff in connection with the collection of the alleged debt” ) (emphasis added). Therefore, even if Plaintiff contested the delegation provision, and she does not, Plaintiff’s argument fails. See, e.g., Cayanan v. Citi Holdings, Inc., 928 F.Supp.2d 1182, 1207 (S.D.Cal.2013) (calls made to plaintiffs “because Plaintiffs had failed to make timely payments on their accounts,” “for the limited purpose of collecting money owed them,” and “not … for advertising, marketing, or other purposes unrelated to the accounts,” were “ ‘related to’ the delinquent credit accounts” and thus TCPA claims based on those calls were covered by Citi arbitration clause). In accordance with the parties’ contract, the Court must stay the litigation to permit the arbitrator(s) first to arbitrate these “gateway” issues, and then, if permissible, to arbitrate the substantive claims.

Judge England rejected the argument that the Rosenthal Act prohibits arbitration of Rosenthal Act claims because the Act contains a right to jury trial.

Finally, Plaintiff argues that her RFDCPA claim specifically prohibits Plaintiff’s waiver of rights to a jury trial. Plaintiff relies on Section 1788.33 which states that “[a]ny waiver of the provisions of this title is contrary to public policy, and is void and unenforceable.” Cal. Civ.Code § 1788.33. Defendant disagrees with Plaintiff’s interpretation of the RFDCPA. Reply, ECF No. 11 at 8–9. “The Court, however, does not need to resolve this issue because even if Plaintiff’s interpretation is correct, the FAA preempts state law.” Delgado v. Progress Fin. Co., 1:14–CV–00033–LJO, 2014 WL 1756282, at *6 (E.D.Cal. May 1, 2014); see AT & T Mobility LLC, 131 S.Ct. at 1747, (2011) (“When state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.”); see also Allied–Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 281 (1995) (“What States may not do is decide that a contract is fair enough to enforce all its basic terms (price, service, credit), but not fair enough to enforce its arbitration clause.”). Accordingly, the Court orders the parties to arbitrate Plaintiff’s RFDCPA claim.