In Scott v. Credit Consulting Servs., No. H049063, 2022 Cal. App. Unpub. LEXIS 5210, at *21-24 (Aug. 23, 2022), the Court of Appeal in an unpublished decision reversed summary judgment granted by the trial court in favor of the debt collector.
The misleading character of a covered communication is material if it could “cause the least sophisticated debtor to suffer a disadvantage in charting a course of action in response to the collection effort.” (Tourgeman, supra, 755 F.3d at p. 1121; see also Jensen, supra, 791 F.3d at p. 421 [a statement is material if it is capable of influencing the decision of the least sophisticated debtor]; but see Tavernaro, supra, 2022 WL 3153234 at p. *8-*9.) The misleading character of CCS’s communication is material because the perception that the attachment is from the court and not the debt collector dilutes the carefully phrased, mandatory admonitions of the summons underneath as to the urgency of responding to the summons by answering the complaint or by consulting either legal counsel or the self-help resources of the court. At bottom, the attachment’s invitation to call CCS is precisely what the summons cautions against: “a . . . phone call will not protect you.” Both Congress and the California Legislature have expressly targeted communications that create a false impression as to their source, including specifically court or governmental agency authorization, issuance, or approval. (See 1692e(9); Civ. Code, 1788.16.) We conclude that the false official imprimatur here, in the eyes of the least sophisticated consumer, is capable of influencing them. (See Jensen, supra, 791 F.3d at p. 421.) CCS’s cases do not involve similar facts. (See Donohue, supra, 592 F.3d at p. 1034 [complaint that accurately reflected the total debt but contained a technically inaccurate label for at least one of two sums comprising the total debt was not materially false]; Frank v. Autovest, LLC (D.D.C. Sept. 30, 2019) 2019 WL 4750327, p. *5, vacated and remanded on other grounds by Frank v. Autovest, LLC (D.C. Cir. 2020) 961 F.3d 1185 [details about the securitization of a loan were irrelevant to debt collection action].) Intentional or not, the function of the attachment is to encourage the consumer to direct questions to CCS rather than to file an answer in an adversarial proceeding. In disputing materiality, CCS relies on testimony from Scott: “To me, that yellow note relates to Credit Consulting Services for the matters in this case.” As a factual matter, understanding that the note “relates to” CCS is not the same as understanding that it was CCS rather than the court itself urging him to contact the entity suing him. As a matter of law, the standard of the least sophisticated debtor is an objective one not dependent on the actual comprehension or incomprehension of any specific person. “In order to prevail, it is not necessary for a plaintiff to show that she herself was confused by the communication she received; it is sufficient for a plaintiff to demonstrate that the least sophisticated consumer would be confused. In this way, the FDCPA enlists the efforts of sophisticated consumers . . . as ‘private attorneys general’ to aid their less sophisticated counterparts, who are unlikely themselves to bring suit under the Act, but who are assumed by the Act to benefit from the deterrent effect of civil actions brought by others.” (Jacobson v. Healthcare Fin. Servs. (2d Cir. 2008) 516 F.3d 85, 91, fn. omitted.) Accordingly, Scott’s “subjective reaction . . . is neither here nor there.” (Id. at p. 96.) For these reasons, we conclude that the court’s entry of summary judgment in CCS’s favor was error.