District Court (Cal.) Finds Telephone Harassment Too Remote from Litigation to Trigger anti-Slapp Protection; Finds Law Firm Not Exempt from Rosenthal Act

In Bautista v. Hunt & Henriques, 2012 WL 160252 (N.D.Cal. 2012), Judge Spero found a telephonic harassment claim too remote from litigation to trigger protection under California’s anti-SLAPP statute, explaining:

In Briggs, supra, the California court of appeal explained that “just as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b) [citation], … such statements are equally entitled to the benefits of section 425.16.”   Briggs, 19 Cal.4th 1106, 1115, 81 Cal.Rptr.2d 471, 969 P.2d 564 (citations omitted). Many courts have observed and commented on “the congruity between protected activity within the meaning of the anti-SLAPP statute and the communicative conduct that is protected by the litigation privilege.”   Gallanis–Politis v. Medina, 152 Cal.App.4th 600, 617, 61 Cal.Rptr.3d 701 (2007).¶  Applying the law to the facts of the present case, the Court concludes that the Defendant has not satisfied its burden of establishing, based on undisputed facts, that the communications allegedly made by Defendant were made in anticipation of imminent litigation that was actually contemplated in good faith. Plaintiff alleges that Defendant made repeated, unlawful telephone calls in 2010. Complaint ¶ 3. Plaintiff asserts that she knew the source of the caller based on caller identification. Bautista Affidavit ¶¶ 4–9. Defendant vehemently denies these allegations, but admits that it made one telephone call to Plaintiff on October 4, 2010 and another since the litigation was filed in December 2011. Even assuming that the only call occurred in October 2010, the collection lawsuit filed by Defendant in Superior Court to collect the debt in this case was not filed until July 26, 2011, nine months after the phone call Defendant admits to having made to Plaintiff.

The Court also concluded that the defendant law firm was not exempt from the Rosenthal Act, explaining:

Defendant contends that it is not a “debt collector” within the meaning of the Act, urging the Court to adopt the reasoning of a case from the Southern District of California involving the same law firm defendant, Owings v. Hunt & Henriques, 2010 WL 3489342 (S.D.Cal. Sept.3, 2011).  ¶  *8 In opposition, Plaintiff argues that numerous courts in this district have concluded that law firms are not excluded from the definition of “debt collector” under the Rosenthal Act and have explicitly rejected the analysis set forth in Owings, supra. See Reimann v. Brachfeld, 2010 WL 5141858 (N.D.Cal. Dec.3, 2010) (Seeborg, J.) (rejecting Owings citing Abels v. JBC Legal Group, P. C., 227 F.R.D. 541, 547–48 (N.D.Cal.2005) (“Since the legislature specifically excluded attorneys from the statute but was silent on law firms, this Court presumes that the legislature did not intend to exclude law firms.”); Navarro v. Eskanos & Adler, 2007 WL 549904 (N.D.Cal. Feb.20, 2007) (Alsup, J.) (citing Abels, and noting that “[d]efendant do[es] not dispute that [its] primary business is collecting debts that are assigned to it by its clients”); Owens v. Brachfeld, 2008 WL 3891958, *4 (N.D.Cal. Aug.20, 2008) (Fogel, J.) (law firm not excluded from definition of debt collector); Robinson v. Managed Accounts Receivable Corp., 654 F.Supp.2d 1051, 1061 (C.D.Cal.2009) (same).  ¶   The Court concludes that a law firm can be a “debt collector” within the meaning of the Rosenthal Act. The vast weight of authority in this district and throughout California supports the Plaintiff’s position. See Silva v. Jason Head, PLC, 2010 WL 4593704, *5 (N.D. Cal. Nov 04, 2010 (Koh, J.); Moriarity v. Henriques, 2011 WL 4769270, *6 (E.D.Cal. Oct.7, 2011) (finding the law firm Hunt & Henriques to be a debt collector under the Rosenthal Act, noting that “district courts throughout the Ninth Circuit have found that a law firm is a ‘debt collector’ within the meaning of the RFDCPA”); Miranda v. Law Office of D. Scott Carruthers, 2011 WL 2037556, *7 (E.D.Cal. May 23, 2011) (citing Abels and Navarro, supra, and noting that “[e]vidence has been submitted that Defendant Law Firm regularly engages in debt collection”). Accordingly, the Defendant’s Motion, to the extent based upon its argument that Plaintiff cannot prevail as a matter of law because a law firm is not a “debt collector” within the meaning of the Rosenthal Act is DENIED.