District Court (Cal.) Says Rosenthal Act Penalty Can Be Trebled Under California’s Elder Abuse Statute

Defendant TRG argues that Section 3345 only authorizes trebling of punitive damages, and therefore the request should be interpreted as a “de facto” demand for punitive damages, which are unavailable under the FDCPA and the Rosenthal Act. See, e.g., Varnado v. Midland Funding LLC, 43 F.Sup.3d 985, 993 (N.D. Cal. 2014); Sanchez v. Client Servs., Inc., 520 F.Supp.2d 1149, 1163-64 (N.D. Cal. 2007). Defendant TRG, however, misconstrues Section 3345. . . .Though Section 3345 clearly permits trebling of punitive damages, it also permits trebling “[w]henever” a statute authorizes “either a fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter….” Cal. Civ. Code § 3345(b) (emphasis added). The key question is whether “the statute under which recovery is sought permits a remedy that is in the nature of a penalty.” Clark v. Sup. Ct., 50 Cal.4th 605, 614 (2010) (holding that Section 3345 permits trebling “only if the statute under which recovery is sought permits a remedy that is in the nature of a penalty”). If it is a penalty, then trebling under Section 3345 is permitted. Here, both the FDCPA and Rosenthal Act permit the recovery of statutory penalties and fines (other than damages). See 15 U.S.C. §§ 1692k(a)(2)(A), 1692k(b)(1) (authorizing a penalty up to $1,000); Cal. Civ. Code § 1788.30(b) (permitting “a penalty” between $100 and $1,000 for any “willful[ ] and knowing[ ] violat[ion]” of the Rosenthal Act). The Ninth Circuit has recognized that “[s]tatutory damages under the FDCPA are intended to deter violations by imposing a cost on the defendant even if his misconduct imposed no cost on the plaintiff.” Gonzales v. Arrow Financial Servs., LLC, 660 F.3d 1055, 1067 (9th Cir. 2011) (quotation omitted). It also specifically noted that comparable damages under California’s Rosenthal Act “increase deterrence, thus affording greater protections to consumers and operating consistently with the FDCPA.” Id. Such statutory damages therefore have “the purpose or effect…to punish or deter.” Cal. Civ. Code § 3345(b). Trebling under Section 3345 is thus permitted. Cf. Clark, 50 Cal.4th at 614. Defendant TRG is wrong that they are unavailable as a matter of law.