In Marseglia v. JP Morgan Chase Bank, — F.Supp.2d —-, 2010 WL 4595549 (S.D.Cal. 2010), Judge Houston put to rest questions about the common law torts of invasion of privacy and “tort-in-se”, as well as the question regarding whether the Rosenthal Act provides multiple penalties for debt collection torts.
As to the invasion of privacy claim deriving from purportedly harassing telephone calls and contacts with the Plaintiff following notice of representation by counsel, the Court applied Iqbal/Twombly and explained:
This Court is persuaded by the reasoning presented in the cases cited by defendant. Most persuasive to this Court is Castellanos, in which Judge Marilyn L. Huff found insufficient facts plead to support an invasion of privacy claim based on plaintiff’s failure “to allege the content of any of the calls placed to [p]laintiff … and what was highly offensive about such calls.” Id., Civil Case No. 09cv0969 H(JMA), Doc. # 8 at 15; see also Hamburg, Civil Case No. 09cv2860 H(WMc), Doc. # 18 at 4 (same reasoning). ¶ Conversely, this Court finds the reasoning presented in Fausto, cited by plaintiffs, to be inapplicable here. As noted by defendant in reply, Fausto was decided in favor of plaintiffs in part because of allegations regarding defendants’ refusal to identify themselves and then calling the plaintiffs immediately after having spoken with them. Doc. # 10 at 1 (citing Fausto, 598 F.Supp.2d at 1056). Here, there are no allegations that defendant ever spoke with either plaintiff but, instead, the FAC alleges only that “[d]efendant[ ] telephoned [p]laintiffs on a daily basis, including early morning and late at night … call[ing] frequently to annoy and harass [p]laintiffs at their home.” FAC ¶ 122. Although plaintiffs allege a total of fifty (50) calls were made in one week, see id. ¶ 121, there are no facts alleged upon which this Court could infer plaintiffs ever answered any of these calls or defendant ever made any direct contact with plaintiffs that might be construed as annoying or harassing conduct. Without such allegations, this Court is not convinced that the number of calls in itself can be considered highly offensive above a speculative level.FN1 Therefore, this Court finds plaintiffs have failed to plead facts sufficient to state a claim for invasion of privacy. Accordingly, defendant’s motion to dismiss plaintiff’s seventh cause of action is GRANTED and plaintiff’s seventh cause of action is DISMISSED WITHOUT PREJUDICE with leave to amend.
As to the purported tort of “tort-in-se”, the Court rejected such an expansion of the common law, explaining:
Plaintiffs’ eighth cause of action seeks relief based on commission of a tort-in-se which allows a plaintiff to seek relief as an intended beneficiary of a statutory duty that has been violated. See FAC ¶¶ 129-132. Defendant moves to dismiss this claim on the grounds that the Rosenthal Act, the statute upon which plaintiffs seek tort-in-se relief, provides for a private civil remedy and plaintiffs cite no authority to support a finding that California intended to allow separate negligence tort claims based upon the duties created by the Rosenthal Act. Doc. # 7-1 at 7; Doc. # 10 at 9 (citing Castellanos, Civil Case No. 09cv0969 H(JMA), Doc. # 8 at 16 (“The Rosenthal Act already provides a specific private civil remedy and there is nothing to indicate that California intended to allow separate negligence tort claims based upon the duties created by the Rosenthal Act”); Thompson, Civil Case No. 09cv2143 DMS(POR), Doc. # 15 at 7-8 (“the Court agrees with the reasoning in Castellanos, and declines to recognize a tort in se claim based solely on [ Rosenthal Act] violations for which Plaintiffs have a private civil remedy.”)). ¶ This Court also agrees with the reasoning in Castellanos and declines to recognize a tort in se claim based on plaintiffs’ allegations of Rosenthal Act violations by defendant. Accordingly, defendant’s motion to dismiss plaintiffs’ eighth cause of action is GRANTED and plaintiff’s eighth cause of action for tort in se is DISMISSED WITH PREJUDICE.
Finally, the Court rejected Plaintiff’s claim to apply multiple penalties to Rosenthal Act claims, explaining:
[D]efendant moves to strike all of plaintiffs’ requests for non-recoverable statutory damages. Defendant explains that plaintiffs seek to recover statutory damages for each of defendant’s alleged violations of 15 U.S.C. § 1692 and the Rosenthal Act but § 1692(k) provides for actual damages plus statutory damages not exceeding $1,000 per plaintiff per proceeding, not per violation as sought by plaintiffs. . . .¶ . . . After a careful review of the authority cited, as well as the authority unearthed by this Court’s own research, this Court agrees with defendant that statutory damages under the Rosenthal Act are limited to $1,000 per plaintiff, not per violation. This Court notes that the Ninth Circuit limits statutory damages under the FDCPA to “one set of circumstances,” Clark v. Capital Credit & Collection Services, LLC, 460 F.3d 1162, 1178 (9th Cir.2006), and district courts in the Ninth Circuit have determined that the FDCPA limits statutory damages to “$1,000 per lawsuit, not $1,000 per violation.” Nelson v. Equifax Information Services, LLC, 522 F.Supp.2d 1222, 1238-39 (C.D.Cal.2007); see Brablec v. Paul Coleman Associates, P.C., 2010 WL 235062 *2 (E.D.Cal. Jan.21, 2010) (same). In addi-tion, when faced with claims for relief under both the Rosenthal Act and the FDCPA, courts have awarded statutory damages under each statute per plaintiff and not per violation. See Morisaki v. Davenport, Allen & Malone, Inc., 2010 WL 3341566 *3 (E.D.Cal. Aug.31, 2010)(awarding $1,000 statutory damages for federal cause of action and $1,000 for state cause of action based on “many violations of state and federal law”); Panahiasl, 2007 WL. 238642 at *4 (awarding $1,000 statutory damages per plaintiff for federal claim and $1,000 per plaintiff for state claim). Therefore, this Court finds plaintiffs’ request for statutory damages per violation of the Rosenthal Act is not recoverable and their request for such damages must be stricken.
Finally, Judge Houston rejected plaintiff’s libel theory, explaining that failing to report an account as “disputed” was not libelous on its face.