In Bentkowsky v. Benchmark Recovery, Inc, 2015 WL 502948 (N.D.Cal. 2015), Judge Chhabria addressed whether an intent element is required for imposition of a statutory penalty under the Rosenthal Act versus the FDCPA’s “strict” liability provision.
The defendants also contend that the Court lacked authority to award $1,000 more in damages, for the same violation, under section 1788.17. On further reflection, the Court concludes that an additional $1,000 in damages under section 1788.17 of the Rosenthal Act is not warranted, although not for the reason the defendants have articulated. ¶ The defendants contend that any damages award under section 1788.17 must be accompanied by a finding that the violation was knowing and willful. But that intent requirement is contained in section 1788.30(b) of the Rosenthal Act, not section 1788.17. Section 1788.17 was enacted later, and by its own terms incorporates the exact liability provisions and remedies as the FDCPA—specifically, 15 U.S.C. §§ 1692b–1692j and 1692k. And it does so “[n]otwithstanding any other provision of this title.” To construe section 1788.17 as requiring a finding of intent as a prerequisite to a statutory damages award seems contrary to the plain language of the provision, since the federal statute that it incorporates indisput-ably does not contain such a requirement. ¶ To illustrate the point, imagine that the plain-tiff in this case preferred to sue the defendants in state court, under only the Rosenthal Act. And imagine the plaintiff alleged that the defendants violated section 1788.17, because the letter’s failure to identify the current creditor was a violation of the FDCPA. Further imagine that the plaintiff sought $1,000 in strict-liability damages, because section 1788.17 in-corporates the strict-liability statutory damages pro-vision of 15 U.S.C. § 1692k. It would seem strange for the defendants to argue that the plaintiff is required to prove intent, simply because a separate and earlier-enacted liability provision of the Rosenthal Act -namely, section 1788.30(b)—requires a showing of intent. ¶ In any event, the Court does not definitively reach this question, because it has concluded, after giving the matter more careful consideration, that an award of an additional $1,000 under the Rosenthal Act, over and above the $1,000 that the plaintiff will receive under the FDCPA, is not warranted. As discussed in the prior order, there is no indication in the record that the defendants acted with any level of intent to deceive Bentkowsky. This is true for all claims Bentkowsky asserts in connection with the single letter he received from the defendants—the claims the Court reached in its summary judgment ruling and the claims it didn’t reach. Therefore, even if Bentkowsky prevailed on all his claims against the defendants—the ones on which the Court has ruled for Bentkowsky and the ones Bentkowsky has asserted but the Court did not reach—an award of more than $1,000 would not be justified. The Court exercises its discretion to amend this award, because it did not give proper consideration to the appropriate amount of the award the first time around. FN1 [FN1. There could be an additional reason for declining to award Bentkowsky an additional $1,000 under section 1788.18. There is an argument that such an award would exceed a cap set for awards authorized by the FDCPA. Cf. Gonzales v. Arrow Fin. Servs., 660 F.3d 1055, 1068 n.15 (9th Cir.2011). But even if the Court could award additional damages under section 1788.18, it would not do so in light of the record in this case.]