Judge: Marcella O. Mclaughlin, Case: 37-2023-00051339-CL-NP-CTL, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 27, 2024

06/28/2024  09:00:00 AM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Limited  Non-PI/PD/WD tort - Other Demurrer / Motion to Strike 37-2023-00051339-CL-NP-CTL GHANEM VS CITIBANK NATIONAL ASSOCIATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 02/22/2024

The demurrer to the complaint is SUSTAINED with leave to amend.

A. The Rosenthal Fair Debt Collection Practices Act ('Rosenthal Act') requires that every 'debt collector' collecting or attempting to collect a consumer debt comply with the Fair Debt Collection Practices Act ('FDCPA'). Civ. Code § 1788.17. Among other things, the FDCPA prohibits a 'debt collector' from communicating 'in connection with the collection of any debt, with any person other than the consumer[.]' 15 U.S.C. § 1692c(b). However, because the definition of 'debt collector' provided in the Rosenthal Act (Civ. Code § 1788.2(c)) is broader than that provided in the FDCPA (15 U.S.C. § 1692a(6)), a person who is a 'debt collector' under the former – but not the latter – can contact third parties without violating section 1692c(b), and hence section 1788.17. See Best v. Ocwen Loan Servicing, LLC (2021) 64 Cal.App.5th 568, 579-80.

Here, while plaintiff has alleged facts showing that defendant is a 'debt collector' under the Rosenthal Act (see Complaint at ¶¶ 11, 13), there are insufficient facts showing that defendant is also a 'debt collector' under the FDCPA. Thus, plaintiff has failed to allege a violation of section 1692c(b). See Best, 64 Cal.App.5th at 579-80 (explaining that a business engaged in nonjudicial foreclosure proceedings is not a 'debt collector' within the meaning of the FDCPA and this is 'not forbidden to communicate with third parties'). It therefore follows that plaintiff has not alleged sufficient facts to state a claim for violation of section 1788.17.

B. Defendant's request for judicial notice (ROA 14) is denied.

C. 'Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.' Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227. Accordingly, plaintiff is granted leave to amend her complaint. The first amended complaint must be filed and served by July 8, 2024.

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