Tourgeman v. Nelson & Kennard , 166 Cal. Rptr. 3d 729 ( 2014 )

Filed 1/16/14
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DAVID TOURGEMAN, D063473
Plaintiff and Appellant,
v. (Super. Ct. No.
37-2012-00097595-CU-BT-CTL)
NELSON & KENNARD et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Luis R.
Vargas, Judge. Reversed and remanded with directions.
Johnson & Weaver, Frank J. Johnson and Brett Michael Weaver for Plaintiff and
Appellant.
Simmonds & Narita, Tomio Buck Narita and Jeffrey A. Topor for Defendants and
Respondents.
I.
INTRODUCTION
David Tourgeman brought a putative class and representative action against Dell
Financial Services, L.P. (Dell Financial Services)1 and respondents Nelson & Kennard
and Robert Kennard. In his complaint, Tourgeman contended that respondents violated
the Fair Debt Collections Practices Act (FDCPA) (15 U.S.C. § 1692 et seq.) while
attempting to collect a debt that Tourgeman incurred in connection with his purchase of a
Dell computer. Tourgeman brought a single claim under the Unfair Competition Law
(UCL) (Bus. & Prof. Code, § 17200) seeking an injunction to prevent respondents from
engaging in unlawful, unfair, and/or fraudulent debt collection practices in the future.
Respondents filed a special motion to strike pursuant to the anti-SLAPP statute (Code
Civ. Proc., § 425.16).2
Tourgeman voluntarily dismissed his action against respondents. After the action
was dismissed, respondents filed a motion for attorney fees. (Code Civ. Proc., § 425.16,
subd. (c)(1).)3 Tourgeman opposed the motion. In his opposition, Tourgeman conceded
that the trial court had jurisdiction to rule on respondents' motion for attorney fees, but
1 Dell Financial Services is not a party to this appeal.
2 Unless otherwise specified, all subsequent statutory references are to the Code of
Civil Procedure.
"SLAPP" stands for Strategic Lawsuit Against Public Participation. (See Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 57.)
3 Section 425.16, subdivision (c)(1) provides in relevant part, "[I]n any action
subject to subdivision (b), a prevailing defendant on a special motion to strike shall be
entitled to recover his or her attorney's fees and costs."
2
argued that the trial court was required to determine whether respondents would have
prevailed on their special motion to strike as a prerequisite to awarding them attorney
fees under the anti-SLAPP statute. Tourgeman further argued that respondents would not
have prevailed on their special motion to strike because the action was exempt from the
anti-SLAPP statute, under the public interest exception to the statute (§ 425.17).4
The trial court determined that Tourgeman had failed to demonstrate that the
public interest exception applied to his lawsuit, and entered an order to this effect. The
court awarded attorney fees and costs to respondents in the amount of $11,581.5 The
court later entered judgment in favor of respondents in this same amount.
On appeal, Tourgeman contends that the trial court erred in concluding that his
action was not subject to the public interest exception (§ 425.17, subd. (b)) to the anti-
SLAPP statute. We conclude that Tourgeman's action satisfied each of the requirements
of the public interest exception and that his complaint was therefore not subject to a
special motion to strike. The trial court thus erred in awarding respondents attorney fees
and costs pursuant to the anti-SLAPP statute. Accordingly, we reverse the judgment and
4 Generally speaking, section 425.17 provides that actions brought in the public
interest are not subject to the anti-SLAPP statute if three criteria are met: the plaintiff
does not seek any relief greater than or different from the relief sought for the general
public or a class of which the plaintiff is a member; the action, if successful, would
enforce an important right affecting the public interest, and would confer a significant
benefit on the general public or a large class of persons; and private enforcement is
necessary and places a disproportionate financial burden on the plaintiff in relation to the
plaintiff's stake in the matter.
5 Tourgeman claimed only that his action was exempt from the anti-SLAPP statute
pursuant to the public interest exception (§ 425.17), and did not otherwise oppose the
special motion to strike.
3
the attorney fees and costs order and remand the matter to the trial court with directions
to deny respondents' motion for attorney fees and costs.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Tourgeman's complaint
In May 2012, Tourgeman filed a complaint against Dell Financial Services and
respondents. In his complaint, Tourgeman alleged that he purchased a Dell computer in
November 2001 and that Dell Financial Services had arranged for Tourgeman to obtain a
loan from CIT Online Bank. Tourgeman alleged that in January 2007, Nelson &
Kennard "generated [] a collection letter to [Tourgeman] on a form template" that
misidentified the original creditor of Tourgeman's loan. Tourgeman further alleged that
Scott Kennard had "spent very little time reviewing this letter, and did not review
[Tourgeman's] file or account notes, before signing it." Tourgeman claimed that as a
result, Kennard had not been " 'meaningfully involved,' " in connection with the
collection of the debt as required by the FDCPA.
Tourgeman further alleged that Nelson & Kennard had "sent collection letters to
hundreds of consumers that falsely identified the consumer's original creditor."
Tourgeman also alleged that Scott Kennard had not conducted any "meaningful review"
before signing these letters.
Tourgeman claimed that Nelson & Kennard had filed a lawsuit against him that
misidentified the original creditor of Tourgeman's loan, that he had incurred over $38,000
in legal fees defending the lawsuit, and that Nelson & Kennard had eventually dismissed
4
the lawsuit without prejudice. Tourgeman further alleged that Nelson & Kennard had
filed "similar false complaints against dozens of consumers throughout California."
Tourgeman stated that he was bringing the action on behalf of himself and the
following classes:
"All consumers who financed a Dell-branded product through Dell
Financial Services, Inc. and to whom . . . Nelson & Kennard sent, to
an address in California, a collection letter that identified the
consumer's original creditor as an entity that was different than the
entity with which the consumer actually had a loan agreement.
[¶] . . . [¶]
"All consumers who financed a Dell-branded product through Dell
Financial Services, Inc. and against whom Nelson & Kennard filed a
California state-court lawsuit that alleged the consumer entered into
a written loan agreement with an entity that was not the entity with
which the consumer actually had a loan agreement."
Tourgeman alleged a single cause of action against Dell Financial Services and
respondents for violation of the UCL on behalf of himself, "members of the [c]lass, and
of the general public." Tourgeman claimed that respondents continued to send collection
letters and file collection lawsuits without "enact[ing] measures to ensure that they obtain
complete and accurate information about consumers before sending out collection letters
and/or filing suits."
In his prayer for relief Tourgeman sought:
"An injunction enjoining, preliminarily and permanently, the
[respondents] from continuing the unfair, unlawful, and/or
fraudulent conduct alleged herein, including an injunction requiring
the [respondents] to enact sufficient measures that will include the
name of the correct original creditor on any collection letters they
send out or in any lawsuits that they file in the future. [¶] . . . [¶]
5
"An injunction enjoining, preliminarily and permanently, [the
respondents] from continuing the unfair, unlawful, and/or fraudulent
conduct alleged herein, including an injunction requiring
[respondents] to enact policies and procedures to ensure that an
attorney is 'meaningfully involved' in the attempt to collect debts by,
among other things, conducting a sufficient review of the consumer's
file before signing a collection letter."
B. Respondents' special motion to strike and motion for attorney fees
In August 2012, respondents filed a special motion to strike pursuant to the anti-
SLAPP statute. Tourgeman subsequently dismissed this action against respondents
without prejudice. After the dismissal, respondents filed a motion for attorney fees and
costs pursuant to the anti-SLAPP statute.
Tourgeman opposed the motion, contending that respondents were not entitled to
an award of attorney fees and costs pursuant to the anti-SLAPP statute because they
would not have prevailed on their special motion to strike. Specifically, Tourgeman
argued that the action was exempt from application of the anti-SLAPP statute pursuant to
the public interest exception (§ 425.17).
In support of his claim that the action was exempt from the anti-SLAPP statute,
Tourgeman emphasized that he had not sought "any monetary damages or restitution for
himself," and that the sole remedy that he had sought in his complaint was injunctive
relief designed to ensure that California consumers were not harmed by respondents'
allegedly unfair, unlawful and fraudulent debt collection practices in the future.
Tourgeman further argued that he had not sought any benefit for himself and that instead,
he had brought this case "purely for the benefit [of] a large class of Californians who
might one day wind up on the receiving end of a collections letter or lawsuit from
6
[respondents] that violates the FDCPA." Tourgeman also argued that his action would
benefit the public interest, and that private enforcement was necessary and placed a
disproportionate burden on him.
Respondents filed a reply in which they argued that Tourgeman's action did not
meet the three requirements of the public interest exception to the anti-SLAPP statute
(§ 425.17). With respect to the first prong, i.e., that the plaintiff have sought no greater
or different relief than that sought for the general public or class, respondents contended
that in a related federal action, "Tourgeman sought relief personal to himself, different
from and far greater than the injunctive relief he sought on behalf of the class" in this
action. With respect to the second prong, i.e., that the action would enforce an important
right affecting the public interest, respondents argued that Tourgeman had "provided
argument, but no evidence." Specifically, respondents contended that Tourgeman had
failed to present evidence as to how many of its collection letters and lawsuits had
misidentified the consumer's original creditor. Finally, with respect to the third prong,
i.e., that private enforcement was necessary and placed a disproportionate burden on the
plaintiff, respondents argued that the Federal Trade Commission and Consumer Financial
Protection Bureau were authorized to enforce compliance with the FDCPA, and that they
had done so in several recent cases. Respondents further argued than "Tourgeman has
failed to present any evidence of the financial burden this litigation would impose on him
relative to his stake in the matter."
7
C. The trial court's ruling
On November 16, 2012, the trial court entered an order granting respondents'
motion for attorney fees and costs. The court concluded that Tourgeman's action did not
come within the public interest exception to the anti-SLAPP statute, reasoning:
"Plaintiff's complaint in this action sought only injunctive relief, and
it is unlikely Plaintiff would have benefitted from the requested
injunction. However, Plaintiff has not shown an important public
interest that affected a large group of persons would have been
vindicated by his complaint or that private enforcement was
necessary and placed any financial burden on Plaintiff greater than
his stake in this action."
The court noted that Tourgeman had not otherwise opposed the anti-SLAPP
motion:
"Plaintiff does not dispute his sole claim for violation of Business
and Professions Code section 17200 arose from the [respondents']
exercise of their constitutional right to petition. Plaintiff also does
not attempt to demonstrate he could meet his burden of establishing
a probability of prevailing on the merits of his section 17200 claim."
The court awarded respondents attorney fees and costs pursuant to section 425.16,
subdivision (c)(1) in the amount of $11,581.02. On December 26, the trial court entered
a judgment in favor of respondents against Tourgeman for $11,581.02.
8
D. The appeal
Tourgeman timely appeals.6
III.
DISCUSSION
The trial court erred in awarding respondents attorney fees
and costs pursuant to section 425.16, subdivision (c)(1)
Tourgeman contends that the trial court erred in awarding respondents attorney
fees and costs pursuant to section 425.16, subdivision (c)(1).
A. Respondents' contention that we may affirm the attorney fees and costs award
regardless of whether the public interest exception applies is unpersuasive
Citing Coltrain v. Shewalter (1998) 66 Cal. App. 4th 94 (Coltrain), respondents
contend that we may affirm the trial court's attorney fees and costs order on the ground
that they realized their objectives in the litigation, irrespective of whether they would
have prevailed on their special motion to strike.
6 On January 15, 2013, Tourgeman filed a notice of appeal purporting to appeal
from the November 16, 2012 attorney fee order. The trial court's November 16
prejudgment attorney fee order was not appealable as an order granting or denying a
special motion to strike. (Cf. §§ 425.16, subd. (i), 904.1, subd. (a)(13) [both providing
that an order granting or denying a special motion to strike under § 425.16 is
appealable].) However, a notice of appeal is to be construed liberally, in favor of its
sufficiency. (See, e.g., In re Z.A. (2012) 207 Cal. App. 4th 1401, 1404, fn. 2.)
Accordingly, we construe Tourgeman's notice of appeal as perfecting a timely appeal
from the December 26, 2012 judgment. Further, the propriety of the November 16 order
is subject to review on appeal from the December 26 judgment. (See, e.g., Koshak v.
Malek (2011) 200 Cal. App. 4th 1540, 1544 [interim orders are reviewable on appeal from
a final judgment].)
9
In Coltrain, a panel of the Fourth Appellate District, Division Two,7 concluded
that when a plaintiff voluntary dismisses its complaint while a special motion to strike is
pending, it is within the trial court's "discretion to determine whether the defendant is the
prevailing party for purposes of attorney's fees under . . . section 425.16, subdivision (c),"
and that "[i]n making that determination, the critical issue is which party realized its
objectives in the litigation." (Coltrain, supra, 66 Cal.App.4th at p. 107, italics added.)
The Coltrain court added, "Since the defendant's goal is to make the plaintiff go away
with its tail between its legs, ordinarily the prevailing party will be the defendant."
(Ibid.)
Numerous courts have agreed with the Coltrain court's conclusion that a trial court
retains jurisdiction to award attorney fees pursuant to section 425.16, subdivision (c)(1)
after a plaintiff voluntary dismisses its complaint while a special motion to strike is
pending. (See. e.g, Liu v. Moore (1999) 69 Cal. App. 4th 745, 752 (Liu); Pfeiffer Venice
Properties v. Bernard (2002) 101 Cal. App. 4th 211, 217 (Pfeiffer); Law Offices of Andrew
L. Ellis v. Yang (2009) 178 Cal. App. 4th 869, 879.) However, in contrast to the Coltrain
court's statement that it is within the trial court's discretion to award attorney fees
pursuant to section 425.16, subdivision (c)(1) if the court determines that the defendant
7 Throughout their brief, respondents repeatedly state that Coltrain is a decision of
"[t]his court." As noted in the text, Coltrain was decided by a panel of a different
division of this appellate district. In any event, even if Coltrain had been decided by a
panel of this division, we would be free to disagree with it. (See Cedars-Sinai Medical
Center v. Superior Court (1998) 18 Cal. 4th 1, 21 ["A Court of Appeal panel is free to
disagree with a decision by another panel, division, or district, and may even reconsider
its own prior decisions"].)
10
achieved its objectives in the litigation, other courts have concluded that, "Under the
terms of subdivision (c), the critical issue is the merits of the defendant's motion to
strike." (Liu, supra, at p. 752, italics added; Pfeiffer, supra, at p. 218 [stating that "[t]he
fee motion is wholly dependent upon a determination of the merits of the SLAPP
motion," and that "the trial court is required to rule on the merits of the [SLAPP]
motion"]; accord Kyle v. Carmon (1999) 71 Cal. App. 4th 901, 919 ["the trial court's
adjudication of the merits of the section 425.16 motion supports affirmance of the award
of attorney's fees and costs to defendant"].)
Thus, under Liu and other cases that have adopted its reasoning, "the trial court's
adjudication of the merits of a defendant's motion to strike is an essential predicate to
ruling on the defendant's request for an award of fees and costs." (Liu, supra, 69
Cal.App.4th at p. 752; see also ibid. [disagreeing with Coltrain to the extent that it
permits an award of attorney fees and costs " 'regardless of whether the action is a
SLAPP suit or not,' " quoting Coltrain, supra, 66 Cal.App.4th at p. 107]; accord Pfeiffer,
supra, 101 Cal.App.4th at p. 218 ["the statement in Coltrain[, supra, at page 107], that
'the trial court has discretion to determine whether the defendant is the prevailing party
for purposes of attorney's fees under Code of Civil Procedure section 425.16, subdivision
(c),' is not accurate"].)
We agree with the Liu court and disagree with Coltrain to the extent that Coltrain
permits the trial court to award attorney fees and costs pursuant to section 425.16,
subdivision (c)(1) without first determining whether the defendant would have prevailed
on the special motion to strike. Subject to exceptions not applicable here, section 425.16,
11
subdivision (c)(1) authorizes an award of attorney fees and costs to a "prevailing
defendant on a special motion to strike." (Italics added.) Thus, a determination of
whether a defendant would have prevailed on its motion to strike is an essential
prerequisite to an award of attorney fees and costs pursuant to section 425.16, subdivision
(c)(1). (Liu, supra, 69 Cal.App.4th at p. 752; Pfeiffer, supra, 101 Cal.App.4th at p. 218.)
Accordingly, we conclude that we may not affirm the trial court's award of
attorney fees and costs on the alternative ground that the trial court had discretion to
determine that respondents were the prevailing party under section 425.16, subdivision
(c)(1), without determining whether respondents would have prevailed on their anti-
SLAPP motion.8
B. Tourgeman's action was not subject to a special motion to strike because it was
protected by the public interest exception to the anti-SLAPP statute
Tourgeman claims that his action was not subject to a special motion to strike
because it was protected by the public interest exception to the anti-SLAPP statute
(§ 425.17, subd. (b)).9 We apply the de novo standard of review to Tourgeman's claim.
8 In this case, the trial court concluded that Tourgeman's Business and Professions
section 17200 claim arose from protected activity, and that Tourgeman had failed to
demonstrate a probability of prevailing on that cause of action. The court further
concluded that Tourgeman's action was not protected by the public interest exception to
the anti-SLAPP statute. We conclude in part III.B., post, that the trial court erred in
concluding that the action was not protected by the public interest exception to the anti-
SLAPP statute. Because the action falls within the exception, it is immaterial whether the
action arises from protected activity or whether Tourgeman would have prevailed on his
cause of action.
9 Respondents' brief contains a single sentence that Tourgeman forfeited his
contention that his complaint was protected by the public interest exception (§ 425.17,
12
(See People ex rel. Strathmann v. Acacia Research Corp. (2012) 210 Cal. App. 4th 487,
498 (Strathmann).)
1. Section 425.17
Section 425.17, subdivision (b) provides:
"(b) Section 425.16 does not apply to any action brought solely in
the public interest or on behalf of the general public if all of the
following conditions exist:
"(1) The plaintiff does not seek any relief greater than or different
from the relief sought for the general public or a class of which the
plaintiff is a member. A claim for attorney's fees, costs, or penalties
does not constitute greater or different relief for purposes of this
subdivision.
"(2) The action, if successful, would enforce an important right
affecting the public interest, and would confer a significant benefit,
whether pecuniary or nonpecuniary, on the general public or a large
class of persons.
"(3) Private enforcement is necessary and places a disproportionate
financial burden on the plaintiff in relation to the plaintiff's stake in
the matter."
In Club Members For An Honest Election v. Sierra Club (2008) 45 Cal. 4th 309,
316 (Club Members), the Supreme Court explained that "[i]n 2003, the Legislature
subd. (b)). However, it is the respondents who have forfeited this appellate contention by
failing to raise it under a separate heading. (See, e.g., In re Marriage of Carlsson (2008)
163 Cal. App. 4th 281, 294 ["Because this argument is not presented under a separate
heading, it is forfeited"].)
In any event, respondents' argument is meritless. For the reasons stated in part
III.A., ante, the trial court was required to determine whether respondents would have
prevailed on their special motion to strike before it could award respondents attorney fees
pursuant to section 425.16, subdivision (c)(1). Thus, Tourgeman timely raised his claim
by arguing in opposition to respondents' motion for attorney fees that respondents would
not have prevailed on their special motion to strike because his complaint was subject to
the public interest exception.
13
enacted section 425.17 to curb the 'disturbing abuse' of the anti-SLAPP statute.
(§ 425.17, subd. (a).)" "According to the sponsor of . . . section 425.17, Senator Sheila
Kuehl, the same types of businesses who used the SLAPP action were inappropriately
using the anti-SLAPP motion against their public-interest adversaries. Hence, the
Legislature expressly designed subdivision (b) of section 425.17 to prevent the use of the
anti-SLAPP device against 'specified public interest actions,' among others. [Citation.]"
(Blanchard v. DIRECTV, Inc. (2004) 123 Cal. App. 4th 903, 913 (Blanchard).)
The court in Ingels v. Westwood One Broadcasting Services, Inc. (2005) 129
Cal. App. 4th 1050, 1066 (Ingels), summarized section 425.17, subdivision (b) and the
Legislature's intent in enacting that provision as follows:
"On its face, subdivision (b) appears to exempt class actions and
private attorney general suits from treatment under section
425.16.[10] A review of the legislative history confirms that was the
intent of the Legislature. . . . '[Senate Bill No.] 515[11] would make
the SLAPP motion inapplicable to public interest and class action
lawsuits "brought solely in the public interest or on behalf of the
general public" when three specified conditions are met. In general,
the qualifying language would clearly encompass claims brought
under the Unfair Competition Law (Business and Professions Code
Section 17200 et. seq.), the Unfair Practices Act (Business and
Professions Code Section 17500 et. seq.), the Consumer Legal
Remedies Act (Civil Code Section 1750 et. seq.), as well as any
other public interest or class actions lawsuits where the three
specified conditions are met.' (Sen. Com. on Judiciary, Analysis of
10 "However, 'not all public interest or class actions [are intended to be]
automatically exempt from the anti-SLAPP law.' [Citation.] Three [statutory] conditions
must exist to invoke the protections of subdivision (b) of . . . section 425.17."
(Blanchard, supra, 123 Cal.App.4th at pp. 913-914.)
11 (Sen. Bill No. 515 (2003–2004 Reg. Sess.).)
14
Sen. Bill No. 515 (2003–2004 Reg. Sess.) as amended May 1, 2003,
p. 13; see also Assem. Com. on Judiciary, Rep. On Sen. Bill No. 515
(2003–2004 Reg. Sess.) as amended June 27, 2003, p. 11.)"
"The three conditions of . . . section 425.17, subdivision (b)(1) through (3) mirror
the three elements for determining the eligibility for a fee award under the private
attorney general doctrine as codified in section 1021.5. "[12] (Blanchard, supra, 123
Cal.App.4th at p. 914.)
If a plaintiff's lawsuit comes within section 425.17, subdivision (b), it is exempt
from the anti-SLAPP statute, and thus, a trial court may deny the defendants' special
motion to strike without determining whether the plaintiff's causes of action arise from
protected activity, and if so, whether the plaintiff has established a probability of
prevailing on those causes of action under section 425.16, subdivision (b)(1). (See, e.g.,
Strathmann, supra, 210 Cal.App.4th at p. 498; Northern Cal. Carpenters Regional
Council v. Warmington Hercules Associates (2004) 124 Cal. App. 4th 296, 299
(Carpenters).)
12 Section 1021.5 provides in relevant part:
"Upon motion, a court may award attorneys' fees to a successful
party against one or more opposing parties in any action which has
resulted in the enforcement of an important right affecting the public
interest if: (a) a significant benefit, whether pecuniary or
nonpecuniary, has been conferred on the general public or a large
class of persons, (b) the necessity and financial burden of private
enforcement, or of enforcement by one public entity against another
public entity, are such as to make the award appropriate, and (c)
such fees should not in the interest of justice be paid out of the
recovery, if any."
15
2. Tourgeman's action satisfied each of the requirements of the public interest
exception
a. Tourgeman's action was brought solely in the public interest
Section 425.17 applies only to actions brought "solely in the public interest or on
behalf of the general public ." "[T]he term 'public interest' is used to define suits brought
for the public's good or on behalf of the public." (Club Members, supra, 45 Cal.4th at p.
318.) The term "solely" as used in section 425.17, subdivision (b) "expressly conveys the
Legislative intent that section 425.17[, subdivision] (b) not apply to an action that seeks a
more narrow advantage for a particular plaintiff." (Club Members, supra, at p. 317.)
To determine whether Tourgeman's lawsuit met those definitions, "we rely on the
allegations of the complaint because the public interest exception is a threshold issue
based on the nature of the allegations and scope of relief sought in the prayer."
(Strathmann, supra, 210 Cal.App.4th at p. 499; Club Members, supra, 45 Cal.4th at p.
316 ["If a complaint satisfies the provisions of the applicable exception, it may not be
attacked under the anti-SLAPP statute" (italics added)]; accord Carpenters, supra, 124
Cal.App.4th at p. 300 [concluding action was brought solely in the public interest based
on allegations of the complaint].)
Tourgeman's putative class and representative action complaint contained a single
claim under the UCL (Bus. & Prof. Code, § 17200 et seq.) against respondents for
violations of the FDCPA (15 U.S.C. § 1692 et seq.) Tourgeman did not seek damages or
restitution on behalf of himself or the class or the general public. Rather, the sole remedy
that Tourgeman sought was injunctive relief directed at preventing respondents from
16
engaging in unlawful, unfair, and/or fraudulent debt collection practices in the future. In
addition, as the trial court observed, "it is unlikely [Tourgeman] would have benefitted
from the requested injunction," since it is doubtful that Tourgeman will again be the
subject of respondents' debt collection efforts. In sum, Tourgeman's putative class and
representative action was one seeking injunctive relief to benefit the general public in the
future by ensuring that respondents comply with state and federal statutory law.
In light of the nature of Tourgeman's claim and the relief that he sought, we
conclude that Tourgeman's action was brought "solely in the public interest." (§ 425.17,
subd. (b); see Strathmann, supra, 210 Cal.App.4th at p. 501 ["Section 425.17[,
subdivision] (b) was intended to exempt . . . private attorney general actions from the
anti-SLAPP statute"]; Carpenters, supra, 124 Cal.App.4th at p. 300 [concluding putative
class action seeking enforcement of city's prevailing wage policy was brought solely in
public interest]; cf. Bell v. Farmers Ins. Exchange (2004) 115 Cal. App. 4th 715, 741 ["By
preventing 'a failure of justice in our judicial system' [citation], the class action not only
benefits the individual litigant but serves the public interest in the enforcement of legal
rights and statutory sanctions"].)
b. The trial court properly determined that Tourgeman did not seek
relief greater than or different from the relief sought for the general
public
Respondents contend that the trial court erred in concluding that Tourgeman did
not seek relief greater than or different from the relief he sought for the general public.
Respondents do not dispute that Tourgeman's complaint did not seek any relief in this
action different from that which he sought for the general public. Rather, respondents
17
contend that "in his federal court lawsuit, Tourgeman sought relief personal to himself,
different from and far greater than the injunctive relief he sought on behalf of the class."
(Italics added.) However, the plain language of section 425.17, subdivision (b) states that
the exception applies to "any action" as to which certain conditions exist. (Italics added.)
Subdivisions (b) and (c) of section 425.17 expressly state that they apply to "the action,"
and "the matter"; there is no language in any of the provisions of section 425.17 that
suggests that a court may consider relief sought by the plaintiff in other lawsuits between
the parties in determining whether an "action" (§ 425.17, subd. (b)) is subject to the
public interest exception. Further, respondents fail to cite any authority, or to make any
textual argument, in support of their contention that we may consider Tourgeman's
federal action in considering whether this action is subject to the public interest
exception.
Accordingly, we conclude that Tourgeman did not seek any relief greater than or
different from the relief that he sought for the general public. (§ 425.17, subd. (b)(1).)
c. Tourgeman's action, if successful, would enforce an important right
affecting the public interest and would confer a significant benefit of
the general public
As noted above, Tourgeman's complaint alleged that respondents violated the
FDCPA (15 U.S.C. § 1692 et seq.), and in so doing committed an unlawful, unfair, or
fraudulent business practice under Business and Professions Code section 17200.
Specifically, Tourgeman claimed that respondents sent him collection letters and filed an
action against him based on a false representation as to the identity of the creditor to
whom he purportedly owed a debt. Tourgeman brought his UCL claim on behalf of
18
himself, "members of the Class and members of the general public," and sought an
injunction requiring respondents to "enact sufficient measures that will ensure they
include the name of the correct original creditor on any collections letters they send out
or in any lawsuits that they file in the future."
In enacting the FDCPA, Congress stated that it had found "abundant evidence of
the use of abusive, deceptive, and unfair debt collection practices by many debt
collectors." (15 U.S.C. § 1692(a).) Congress enacted the FDCPA in order "to eliminate
abusive debt collection practices by debt collectors, to insure that those debt collectors
who refrain from using abusive debt collection practices are not competitively
disadvantaged, and to promote consistent State action to protect consumers against debt
collection abuses." (15 U.S.C. § 1692(e).) The FDCPA attempts to achieve this purpose
through provisions regulating the practices of debt collectors. (See 15 U.S.C. § 1692 et
seq.) Federal courts have concluded that a false representation as to a creditor's name
may constitute a violation of the FDCPA. (See Wallace v. Washington Mut. Bank, F.A.
(6th Cir. 2012) 683 F.3d 323, 327 ["District courts have decided, and we agree, that a
clearly false representation of the creditor's name may constitute a 'false
representation . . . to collect or attempt to collect any debt' under [15 U.S.C.] Section
1692e"].) In his lawsuit, Tourgeman seeks to enjoin respondents from continuing to
violate a federal law enacted to protect the general public from abusive debt collection
practices. We therefore conclude that Tourgeman's action, if successful, would enforce
an important right affecting the public interest and would confer a significant benefit on
the general public.
19
Respondents' arguments to the contrary are unpersuasive. Respondents do not
dispute that the FDCPA provides important rights to the general public, or that
Tourgeman's complaint sought to further the public policy goals of the FDCPA. Rather,
respondents contend, as they did in the trial court, that Tourgeman failed to present
evidence that his action, if successful, would benefit the public. Specifically, respondents
contend that Tourgeman failed to present "evidence of how many of [respondents'] letters
or lawsuits allegedly misidentified the original creditor or otherwise ran afoul of the law."
(Italics added.)
Respondents' suggestion, unsupported by any authority, that Tourgeman was
required to make an evidentiary showing in order to establish this prong of the public
interest exception, is unpersuasive. Whether Tourgeman's action would benefit the
public is determined by examining his complaint to determine whether his lawsuit is of
the kind that seeks to vindicate public policy goals. (Strathmann, supra, 210 Cal.App.4th
at p. 499 ["the public interest exception is a threshold issue based on the nature of the
allegations and scope of relief sought in the prayer"]; see, e.g, id. at p. 504 [concluding
public benefit requirement of section 425.17, subdivision (b)(2) met where qui tam action
sought to further objectives of Insurance Frauds Prevention Act (Ins. Code, § 1871 et.
seq.)]; Carpenters, supra, 124 Cal.App.4th at pp. 300-301 [concluding that action that
sought to promote objectives of city's prevailing wage policy met public benefit
requirement of § 425.17, subd. (b)(2)].) As we concluded above, Tourgeman's complaint
is of the type that seeks to vindicate public policy goals embodied in federal statutory
20
law. Tourgeman was not required to present evidence demonstrating that his action
would in fact serve these goals.
In a related argument, respondents contend that Tourgeman failed to demonstrate
that this action would benefit the public because a federal court rejected related claims on
the merits. Section 425.17, subdivision (b)(2) states that a court is to assume that the
challenged action will be successful in considering whether the action benefits the public.
(Ibid. ["The action, if successful, would enforce an important right affecting the public
interest, and would confer a significant benefit . . . on the general public or a large class
of persons" (italics added)].) The merits of Tourgeman's claim are thus irrelevant in
determining whether the action meets the public benefit requirement of section 425.17,
subdivision (b)(2).
d. Private enforcement was necessary and placed a disproportionate
financial burden on Tourgeman in relation to his stake in the matter
i. The necessity of private enforcement
" '[C]ongress chose a "private attorney general" approach to assume enforcement
of the FDCPA' [citation]." (Heritage Pacific Financial, LLC v. Monroy (2013) 215
Cal. App. 4th 972, 1003.) Our Legislature also has authorized private attorney general
actions with respect to the enforcement of the UCL (Bus. & Prof. Code, § 17200 et seq.).
(See Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal. App. 4th
677, 691 ["a claim for injunctive relief under . . . Business and Professions Code section
17200 et seq. is brought by a plaintiff acting in the capacity as a private attorney
general"].) Thus, concluding that Tourgeman's action is within the ambit of the public
21
interest exemption is fully consistent both with Congress's intent in enacting FDCPA and
the Legislature's intent in enacting the UCL and section 425.17. (See Ingels, supra, 129
Cal.App.4th at p.1066 ["the qualifying language would clearly encompass claims brought
under the Unfair Competition Law (Business and Professions Code section 17200 et
seq.)," quoting the legislative history of § 425.17].)
It is undisputed that no public entity has sought to enforce the rights that
Tourgeman sought to vindicate in his lawsuit. Under these circumstances, we conclude
that private enforcement was necessary to enforce the right at issue in Tourgeman's
action. (See Strathmann, supra, 210 Cal.App.4th at p. 504 ["In this case, private
enforcement is necessary because neither the Attorney General nor the Insurance
Commissioner has intervened to prosecute the action"]; Carpenters, supra, 124
Cal.App.4th at p. 301 [concluding "private enforcement action is necessary '[b]ecause the
City of Hercules has failed to take any action to enforce the City's Wage Policy on the
Project' "].)
Respondents contend that the Federal Trade Commission is authorized to enforce
compliance with the FDCPA and that the "Consumer Financial Protection Bureau [is]
beginning to take an active role in FDCPA enforcement." However, as the cases cited
above make clear, the possibility that a public entity might bring a lawsuit to vindicate
certain rights does not demonstrate that a private plaintiff's action to vindicate such rights
was not necessary where, as here, the public entity has not filed such a lawsuit. (See,
22
e.g., Strathmann, supra, 210 Cal.App.4th at p. 504; Carpenters, supra, 124 Cal.App.4th
at p. 301.)13
ii. Disproportionate financial burden
In Blanchard, supra, 123 Cal.App.4th at pages 915-916, in discussing the law to
be applied in considering whether a plaintiff has demonstrated that private enforcement
placed a disproportionate financial burden on the plaintiff in relation to the plaintiff's
stake in the matter, (§ 425.17, subd. (b)(3)), the Court of Appeal stated the following:
"It has been said about this element that 'the less direct or concrete a
personal interest someone has, the more likely he or she will satisfy
the element . . . .' [Citation.]" . . . [¶] Courts first focus on what sort
of financial stake the plaintiff had in the outcome [citation], i.e.,
what the plaintiff hoped to gain financially from the litigation in
comparison to what it cost. [Citation] . . . The relevant inquiry is
whether 'the " 'cost of the [plaintiffs'] legal victory transcends [their]
personal interest.' " ' [Citation.]"14
13 Respondents contend that Tourgeman "completely ignored this factor" in the trial
court, and thus failed to carry his burden of demonstrating its applicability. While
Tourgeman's trial brief could have been clearer with respect to this issue, his brief
contained a section in which Tourgeman contended that he had demonstrated the
"necessity-and-financial burden factor," and discussed several cases considering this
factor. Further, Tourgeman maintained that his action was necessary in that it "could
have very well protected a future class of consumers who one day found themselves on
the receiving end of a collection letter or lawsuit from [respondents]." Accordingly, we
reject respondents' contention that Tourgeman failed to demonstrate that private
enforcement was necessary.
14 The case law to which the Blanchard court was referring discussed a similar
requirement contained in the private attorney general statute (§ 1021.5.) The Blanchard
court noted that section 425.17 was modeled, in part, on section 1021.5. (See Blanchard,
supra, 123 Cal.App.4th at p. 914 ["The Legislature 'sharply defined' the public-interest
exception of subdivision (b) of section 425.17 by reference to the three 'factors
corresponding to the state's private attorney general statute' so that subdivision (b)
'parallels the existing exception for actions by the attorney general and public
23
In this case, as discussed above, Tourgeman did not seek any financial benefit
from the lawsuit, and, as the trial court noted, it is unlikely that Tourgeman would have
benefitted from any potential injunctive relief, since it is doubtful that he will again be the
subject of respondents' debt collection efforts. This fact, alone, supports the conclusion
that the financial burden on Tourgeman is disproportionate to his stake in the action.
(See Carpenters, supra, 124 Cal.App.4th at p. 301 [concluding the "financial burden on
the Plaintiffs is disproportionate to their stake in the action" because plaintiffs "bring the
action to vindicate a public interest relating to enforcement of the Prevailing Wage Policy
but do not themselves belong to the under-compensated class of nonunion workers"];
compare with Blanchard, supra, 123 Cal.App.4th at p. 916 [concluding plaintiffs were
unable to demonstrate disproportionate financial burden element because "Plaintiffs seek
an accounting to them and restitution to them of moneys they paid to DIRECTV"].)
Further, Tourgeman could reasonably have expected to incur significant litigation
costs in attempting to prove that respondents violated the FDCPA and that injunctive
relief was an appropriate remedy to deter future violations.15 Tourgeman also could
prosecutors.' (Assem. Com. on Judiciary, Rep. on Sen. Bill No. 515, supra, as amended
June 27, 2003, pp. 11–12.)"
15 We reject respondents' contention that Tourgeman would not face "any expense to
litigate this case" because he was being represented on a contingent-fee basis. As noted
previously (see fn. 14, ante), section 425.17 was modeled on the private attorney general
fee statute (§ 1021.5), and both statutes contain a factor considering the "financial
burden" (§§ 425.17, 1021.5) of private enforcement. Under section 1021.5, "the fact that
the case was pursued on a contingency fee basis [does not] undercut a plaintiff's attorney
fees claim . . . . [Citations.].)" (Lyons v. Chinese Hospital Assn. (2006) 136 Cal. App. 4th
24
reasonably have anticipated that he might be found liable for an adverse award of costs.
(See Strathmann, supra, 210 Cal.App.4th at p. 505 [concluding that plaintiff may
demonstrate that a lawsuit places a disproportionate burden on him because of the
possibility that he may become subject to an attorney fees and costs award].)
In arguing to the contrary, Respondents again contend, without citation to
authority, that Tourgeman was required to make an evidentiary showing in order to
establish this prong, arguing that Tourgeman failed to "submit any evidence of the
financial burden this litigation would have imposed on him relative to his stake in the
matter." (Italics added.) We reject this argument. As discussed previously, the
applicability of the public interest exception is determined by examining the complaint.
(See, e.g., Strathmann, supra, 210 Cal.App.4th at p. 499.)
Respondents also argue, contrary to Strathmann, supra, 210 Cal. App. 4th 487, that
a plaintiff's potential liability for an award of attorney fees and costs "is and should be
irrelevant" in determining whether an action places a disproportionate financial burden on
a plaintiff. We agree with respondents that such risk will not necessarily establish that a
plaintiff faced a disproportionate financial burden in litigating the matter. For example,
in a case in which the plaintiff seeks to gain significant personal relief, the specter of such
1331, 1351.) On the contrary, it is well established that the existence of a contingency
fee arrangement is a fact that may be used to increase an attorney fee award under section
1021.5. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal. 4th 553, 579 ["One of the
most common fee enhancers . . . is for contingency risk"].) Since the existence of a
contingency arrangement is not considered to lessen the financial burden of private
enforcement under section 1021.5, we conclude that an attorney's representation of a
plaintiff on a contingency basis does not lessen the financial burden of private
enforcement under section 425.17 either.
25
relief may outweigh the possibility of an adverse award of costs in determining whether
the plaintiff faces a disproportionate financial burden. However, we disagree with
respondents that the possibility of such an award is irrelevant to a determination of
whether an action places a disproportionate financial burden on the plaintiff. Where a
plaintiff files a lawsuit in which he stands to gain little or no personal relief, the
possibility of an adverse award of costs may outweigh the personal relief that the plaintiff
seeks. (See Blanchard, supra, 123 Cal.App.4th at p. 914 [relevant inquiry in determining
disproportionate financial burden is "what the plaintiff hoped to gain financially from the
litigation in comparison to what it cost"].)
Accordingly, given the circumstances discussed above, we conclude that
Tourgeman's filing this action placed a disproportionate financial burden on him in
relation to his stake in the matter.
e. Conclusion
Because Tourgeman's action satisfied each of the requirements of the public
interest exception to the anti-SLAPP statute, we conclude that Tourgeman's action was
exempt from application of the anti-SLAPP statute.16
16 In light of our conclusion that Tourgeman established the applicability of the
public interest exception to the anti-SLAPP statute, we need not consider respondents'
contention that the trial court properly determined that Tourgeman's claim arose from
protected petitioning activity and that Tourgeman did not establish a probability of
prevailing on the merits of the claim.
26
C. The judgment and order granting respondents' motion for attorney fees and costs
must be reversed
We concluded in part III.A., ante, that, prior to awarding respondents attorney fees
and costs pursuant to section 425.16, subdivision (c)(1), the trial court was required to
determine whether respondents would have prevailed on their special motion to strike.
We concluded in part III.B., ante, that respondents would not have prevailed on their
special motion to strike because Tourgeman's action is exempt from application of the
anti-SLAPP statute, under the public interest exception (§ 425.17). Accordingly, the
judgment and order granting respondents' motion for attorney fees and costs pursuant to
section 425.16, subdivision (c)(1) must be reversed.
IV.
DISPOSITION
The judgment and the trial court's order granting respondents' motion for attorney
fees and costs are reversed. The matter is remanded to the trial court with directions to
deny respondents' motion for attorney fees and costs. Tourgeman is entitled to costs on
appeal.
AARON, J.
WE CONCUR:
McDONALD, Acting P. J.
IRION, J.
27