In Contreras v. Portfolio Recovery Associates, LLC, 2017 WL 2964012, at *3 (N.D.Cal., 2017), Judge Corley held that discrete abusive acts were not subject to the continuing violation doctrine.
The FDCPA also prohibits “causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.” 15 U.S.C. § 1692d(5). Summary judgment must be denied because a reasonable trier of fact could find that Defendant caused Plaintiffs’ telephone to ring with intent to annoy, abuse or harass any person at the called number. Viewing the facts in the light most favorable to Plaintiffs, a trier of fact could find that Defendant called Plaintiffs 383 times over just more than two years. The calls continued after Ms. Contreras told Defendant not to call anymore. Defendant even called Plaintiffs’ children more than 20 times each. On a few occasions there were as many as four calls in a single day. Even if these facts are not sufficient to support a finding of the required intent, the evidence that Defendant’s supervisor told Plaintiff in the July 2013 call that, in effect, “we are going to continue to call you until you pay up and there is nothing you can do,” certainly supports a finding of intent to annoy, abuse or harass, especially since the calls then continued until this lawsuit was filed.  Defendants’ argument that the July 2013 call does not support a finding of intent because Defendant’s calls paused for two weeks can be made to the jury. The record evidence does not support the conclusion that every reasonable trier of fact would have to find no intent. Summary judgment is therefore not warranted.
Judge Corley found, however, that the call volume c0uld be harassing.
The FDCPA also prohibits “causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.” 15 U.S.C. § 1692d(5). Summary judgment must be denied because a reasonable trier of fact could find that Defendant caused Plaintiffs’ telephone to ring with intent to annoy, abuse or harass any person at the called number. Viewing the facts in the light most favorable to Plaintiffs, a trier of fact could find that Defendant called Plaintiffs 383 times over just more than two years. The calls continued after Ms. Contreras told Defendant not to call anymore. Defendant even called Plaintiffs’ children more than 20 times each. On a few occasions there were as many as four calls in a single day. Even if these facts are not sufficient to support a finding of the required intent, the evidence that Defendant’s supervisor told Plaintiff in the July 2013 call that, in effect, “we are going to continue to call you until you pay up and there is nothing you can do,” certainly supports a finding of intent to annoy, abuse or harass, especially since the calls then continued until this lawsuit was filed.  Defendants’ argument that the July 2013 call does not support a finding of intent because Defendant’s calls paused for two weeks can be made to the jury. The record evidence does not support the conclusion that every reasonable trier of fact would have to find no intent. Summary judgment is therefore not warranted.
Judge Corley found, however, that the facts of the case did not fit within a common law theory of “negligent training”.
“California law recognizes the theory that an employer can be liable for negligently hiring, supervising or retaining an unfit employee.” Doe v. Capital Cities, 50 Cal .App. 4th 1038, 1054 (1996). “Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.” Mendoza v. City of Los Angeles, 66 Cal. App. 4th 1333, 1339 (1998). However, “there can be no liability for negligent supervision ‘in the absence of knowledge by the principal that the agent or servant was a person who could not be trusted to act properly without being supervised.’ ” Juarez v. Boy Scouts of Am., Inc., 81 Cal.App. 4th 377, 395 (2000) (quoting Noble v. Sears, Roebuck & Co., 33 Cal.App.3d 654, 664 (1973)).   Plaintiffs claim this law supports their claim for negligent training. In particular, they contend that the evidence that Defendant trained its employees to make up to four calls a day, and failed to train their employees to refrain from calling when a consumer makes a verbal request to stop calling, as well as the testimony of Defendant’s 30(b)(6) witness that they did not train their employees as to how to respond to a “comment by a customer or third party that they are being harassed” (Dkt. No. 49-4 at 17:8-18), support a finding of negligent training. These facts, however, do not fall within the cited common law; namely, where an employer hires someone who is presumably fit for the job, but the employer fails to properly train the employee to lawfully perform the job. The Court therefore declines to follow Inzerillo v. Green Tree Servicing, LLC, 2014 WL 660534, at *7 (N.D. Cal. Nov. 24, 2014), which did not explain how the facts of that case fit within the existing common law. Accordingly, Defendant’s motion for summary judgment on the negligent training claim is granted.