Young v. Midland Funding LLC ( 2023 )

Filed 5/3/23; Opinion following rehearing
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
KACIE LYNN YOUNG,
Plaintiff and Appellant, A161843, A162784
v. (San Mateo County Super. Ct.
MIDLAND FUNDING LLC et al., No. 19-CIV-07622)
Defendants and Respondents.
Kacie Lynn Young filed a complaint alleging that Midland Funding,
LLC (Midland Funding) and Midland Credit Management, Inc. (MCM)
(collectively the Midland parties) improperly pursued a debt collection
lawsuit and obtained a default judgment against her for a delinquent credit
account of $8,529.93. Included in her complaint were equitable causes of
action for vacatur of the default judgment and a cause of action for damages
under the Rosenthal Fair Debt Collection Practices Act (Rosenthal Act)
(Civ. Code,1 § 1788 et seq.). Factually, the gist of all of her claims was that
the Midland parties falsely and deceptively represented in the debt collection
lawsuit that they effected substituted service of process on her, and then
relied on this false representation to obtain the default judgment and attempt
to collect on it. Legally, the focus of Young’s Rosenthal Act cause of action
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this
*
opinion is certified for publication with the exception of parts II.A., II.B.2.,
and II.C. of the Discussion.
1 Further undesignated statutory references are to the Civil Code.
1
was an alleged violation of section 1788.17, but she included a scattershot
series of allegations—described by the Midland parties as her “derivative
claims”—citing various other provisions of the Rosenthal Act as well as
various provisions of the Fair Debt Collection Practices Act (15 U.S.C. § 1692et seq.) (FDCPA).
Midland Funding and MCM each responded with a motion to strike all
of Young’s causes of action under Code of Civil Procedure section 425.16,
commonly known as the anti-SLAPP statute. Through these motions, the
Midland parties sought to strike all of Young’s causes of action before
discovery could be had, arguing variously that Young’s equitable causes of
action were moot; that MCM has no liability because it did not take any
action against her in the previous lawsuit; that Young cannot prevail on her
Rosenthal Act cause of action because substituted service was effected; that
even if it turns out substituted service was not effected, neither of the
Midland parties had any knowledge of the service defect, thereby defeating
the Rosenthal Act cause of action because knowledge is a required element
under section 1788.15, subdivision (a); and, finally, that Young’s Rosenthal
Act cause of action was time-barred. In the alternative, Midland Funding
briefly noted its right to challenge specific allegations within the Rosenthal
Act cause of action, without directly making a request for that narrower form
of relief in its notice of motion or in the motion itself. MCM incorporated this
oblique contention by reference in its motion papers.
The trial court granted the Midland parties’ anti-SLAPP motions on
the ground Young did not show she would probably prevail on the merits of
her claims, entered judgment in their favor and awarded them attorney fees
and costs in an amount to be later determined. Because the court granted
the Midland parties’ motions in their entirety, it had no occasion to address
2
Midland Funding’s alternative and indirect request to strike discrete
allegations within Young’s Rosenthal Act cause of action. Young appeals
from the judgment and from the trial court’s later order staying a motion by
the Midland parties for $78,635.14 in attorney fees and costs pending the
outcome of our review. We have consolidated these two appeals.
In the published portion of this opinion, we conclude Young showed she
would probably prevail on the merits of her Rosenthal Act cause of action.
Contrary to the Midland parties’ contentions, she produced prima facie
evidence that they falsely represented substituted service on her was effected
in the debt collection lawsuit. Further, she was not required under section
1788.17 of the Rosenthal Act to show that the Midland parties knowingly
made this false representation, and that provision controls over section
1788.15, subdivision (a) to the extent the two are inconsistent. Finally, we
reject the Midland parties’ request, stated as a vague alternative argument in
their responding brief without citation to Baral v. Schnitt (2016) 1 Cal.5th
376, 384 (Baral), that we order Young’s “derivative claims” to be stricken
pursuant to the request for that relief in Midland Funding’s anti-SLAPP
motion. We conclude the Midland parties either failed to bear their initial
burden for this request under Baral or forfeited the argument by not raising
it with sufficient specificity in their responding brief.
In the unpublished portions of the opinion, we conclude Young’s
equitable causes of action are moot and her Rosenthal Act cause of action was
not time-barred. In line with our determination that Young made a showing
of minimal merit on her Rosenthal Act cause of action, we also conclude the
order staying decision on the Midland parties’ fee motion must be vacated,
and, as a result, we need not address the various attorney fees issues the
parties have briefed in connection with that stay order.
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I. BACKGROUND
Young contended below her employer told her in November 2019 that it
had received an earnings withholding order to garnish her wages (wage
garnishment order). Upon learning this, Young claimed, she investigated
and only then discovered the existence of a 2010 default judgment against
her and in favor of Midland Funding for a purported account debt of
$8,529.93 plus interest (2010 default judgment). Young further contended
that she had never been served with process in the underlying lawsuit
Midland Funding brought against her and had no knowledge of the lawsuit or
the judgment before 2019.
In December 2019, Young, through her attorney, asked Midland
Funding to stipulate to vacatur of the 2010 default judgment because she had
never been served with process. Later that month, having received no
response within the time she requested for a response, Young sued Midland
Funding and MCM in San Mateo County Superior Court.
Young brought three equitable causes of action to set aside the 2010
default judgment and have it declared void based on extrinsic mistake or
extrinsic fraud. She also brought a cause of action for actual and statutory
damages, penalties, and reasonable attorney fees and costs under the
Rosenthal Act. In support of alleged violations of several provisions of the
Rosenthal Act, Young averred that the Midland parties were debt collectors
of a consumer debt they claimed she owed, and that they engaged in various
forms of false and deceptive conduct in attempting to collect that debt. Her
allegations centered on her contention that she was never served with
process in the lawsuit Midland Funding brought against her.
In their joint answer, Midland Funding and MCM denied Young’s
allegations and asserted numerous affirmative defenses. Soon after, each
filed an anti-SLAPP motion to strike all of Young’s causes of action brought
4
against it. Their motions were based on overlapping but not identical
grounds. Each also sought attorney fees and costs under the anti-SLAPP
statute.2
In their anti-SLAPP motions, the Midland parties contended, among
other things, that Young’s Rosenthal Act cause of action was time-barred;
that there was no evidence that MCM had any role in bringing or pursuing
the lawsuit against Young; and that Young failed to show that she or the
Midland parties came within the respective definitions of a “debtor” of
“consumer” debt or of a “debt collector.”
To meet the requisite two-step test under the anti-SLAPP statute, the
Midland parties contended, first, that Young’s lawsuit was directed at
constitutionally protected public activity, i.e., activities before a judicial
proceeding. Second, they argued, Young could not meet her burden of
showing she would probably prevail on the merits of any of her causes of
action because Midland Funding had effected substituted service of process
on her in its lawsuit against her and, even if service had not been legally
effected, they never knew service had not been effected.
At the second step of the analysis, the Midland parties relied on proof
of substituted service of process documents Midland Funding filed with the
superior court in 2009. These documents indicate that in January 2009, a
registered process server, after making reasonably diligent but unsuccessful
efforts to personally serve Young at a particular address in Burlingame,
California (Burlingame address), served the summons and complaint at that
address on a man, described as “John Doe, A white male approx. 30–35 years
2 Code of Civil Procedure section 425.16, subdivision (c)(1) states in
relevant part, “[A] prevailing defendant on a special motion to strike shall be
entitled to recover that defendant’s attorney’s fees and costs.”
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of age 5’6”–5’8” in height weighing 140–160 lbs with black hair,” who was “a
competent member of the household . . . at the dwelling house or usual place
of abode of [Young].” The documents also indicate the process server later
mailed the summons and complaint to the Burlingame address.
The Midland parties further contended that Midland Funding
purchased Young’s account from a third party lender’s managing company in
2008, and that the account had an outstanding balance of $8,269.93. As part
of this transaction, MCM received records from the managing company,
including a loan repayment and security agreement that Young executed in
2005 (2005 loan agreement), which listed her address as the Burlingame
address. Drawing from electronic records obtained from the managing
company, MCM created a “seller data sheet” for Young’s account. This data
sheet listed the Burlingame address as Young’s address. According to a
declaration of an MCM senior project manager that the Midland parties filed
in support of their anti-SLAPP motions and which we will discuss further
post, “Midland relied on information for [Young] as reflected in the
documents and information provided by [the lender’s managing company],
including the Loan Agreement and the Seller Data Sheet.”
Young filed an opposition to the Midland parties’ anti-SLAPP motions.
She did not contest that the Midland parties had satisfied their burden under
the first step of the anti-SLAPP test. Tracking the approach taken by the
Midland parties, she focused her arguments on whether she showed she had
a probability of prevailing on the merits of her causes of action. In a
declaration, Young asserted she knew nothing of Midland Funding’s lawsuit
against her until 2019, had not resided at the Burlingame address since
2001, and had never received the summons and complaint that were
allegedly served or delivered there. According to Young’s mother, stepfather
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and brother, who also filed declarations, while they resided at the
Burlingame address in 2009, Young did not live there and no documents
relating to the lawsuit had been served or received at the residence.
Young argued the Midland parties had violated section 1788.17 by
falsely representing that this substituted service had been effected. Because
of this lack of service, she argued, the 2010 default judgment was void
ab initio, not merely voidable, and the Midland parties had violated the
Rosenthal Act by continuing to attempt to collect on that judgment despite
actual knowledge that the judgment was void for lack of jurisdiction, an
apparent reference to the notice her attorney gave to Midland Funding’s
counsel in December 2019 of Young’s contention that substituted service on
her had never been effected.
In July 2020, during the pendency of the action below, Midland
Funding did not apply to renew the 10-year time period provided by statute
for it to enforce the 2010 default judgment. As a result, its right to enforce
that judgment expired.
After much debate and consideration, including the parties’ submission
of written answers to the trial court’s questions on a number of issues, the
court issued a written order in which it granted the Midland parties’
anti-SLAPP motions and ordered Young’s complaint stricken on the ground
Young had not established a probability of prevailing on the merits. The
court ruled in relevant part, “The default judgment . . . is valid until it is
declared void or overturned by a court, and thus, [Young] failed to meet her
burden of stating and substantiating a legally sufficient claim. Additionally,
the Court finds that there is no evidence that [the Midland parties] made any
attempt to collect the debt after receiving the December, 2019 letter by
[Young’s] counsel.” The court did not address whether Young’s equitable
7
claims were moot. It also awarded the Midland parties their “reasonable
attorneys’ fees and costs incurred in bringing each of their respective
[anti-SLAPP motions], in an amount to be determined by the Court on a
noticed motion.” Soon thereafter, the court entered judgment in favor of the
Midland parties, from which Young filed a timely notice of appeal.
Subsequently, the Midland parties moved under the anti-SLAPP
statute for an award of $78,635.14 in attorney fees and costs. Young opposed
the motion, arguing among other things that the Rosenthal Act attorney fee
provision (§ 1788.30, subd. (c)), which requires a showing that the debtor did
not act in good faith, governed whether the Midland parties should be
awarded attorney fees, not the anti-SLAPP statute attorney fee provision
(Code Civ. Proc., § 425.16, subd. (c)(1)), which does not require such a
showing. The trial court ordered the attorney fee motion stayed pending the
outcome of Young’s appeal from the judgment without addressing any of the
issues raised by the parties. Young filed a timely notice of appeal from this
order, and we consolidated the two appeals.
We filed an opinion on October 7, 2022, (1) reversing as moot the trial
court’s order striking Young’s equitable claims, (2) reversing the trial court’s
order striking Young’s Rosenthal cause of action, (3) rejecting the Midland
parties’ argument that Young’s Rosenthal cause of action is time-barred, and
(4) declining to address (a) the Midland parties’ alternative argument that we
order Young’s “derivative claims” stricken and (b) Young’s attack on the trial
court’s order staying the Midland parties’ fee motion. We subsequently
granted rehearing to address the Midland parties’ contention that, under
Baral, they were entitled to a ruling on their alternative request that we
order Young’s “derivative claims” stricken. We now file this revised opinion
adhering in all respects to our prior opinion, but providing further
8
explanation for our determination that we need not address the Midland
parties’ alternatively stated request for relief under Baral.
II. DISCUSSION
The parties devote most of their attention to whether the 2010 default
judgment was, as Young asserts, void ab initio or, as the Midland parties
assert, merely voidable upon an order of the court. Logically, that issue
drives whether the Midland parties’ settlement demands for payment and
refusal to withdraw the wage garnishment order after being told by Young’s
attorney of the lack of service violated the Rosenthal Act. But we view the
parties’ arguments around voidness versus voidability as tangential. All that
need be addressed to resolve the appeals before us are three issues:
(1) whether Young’s equitable claims are moot, (2) whether there is prima
facie evidence indicating that Young will probably prevail on the merits of
some part of her Rosenthal Act cause of action, and (3) whether that cause of
action is time-barred. We turn now to these three issues. And we publish
our analysis of the second of these issues, since its proper resolution on this
record requires us to address statutory interpretation issues that have not
yet been addressed in the California courts.
A. Young’s Equitable Causes of Action Are Moot
As they did below, Young and the Midland parties both assert that
Young’s equitable causes of action are moot because of the expiration of the
2010 default judgment in July 2020, when Midland Funding did not seek to
renew its time to enforce the judgment. The Midland parties argue mootness
is a separate and independent ground for us to reject Young’s appeal
regarding her equitable causes of action.
We agree that the equitable claims are moot. “A claim is moot when
the grounds for the claim no longer exist.” (People v. Peoples (2016)
62 Cal.4th 718, 773.) The general rule is that “ ‘ “the duty of . . . every . . .
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judicial tribunal[] is to decide actual controversies by a judgment which can
be carried into effect, and not to give opinions on moot questions or abstract
propositions, or to declare principles or rules of law which cannot affect the
matter in issue in the case before it.” ’ ” (Eye Dog Foundation v. State Board
of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) As this court has
previously noted, “ ‘[t]he critical factor in considering whether [an] . . . appeal
is moot is whether the appellate court can provide any effective relief if it
finds reversible error.’ ” (In re David B. (2017) 12 Cal.App.5th 633, 644, cited
unfavorably on another ground in In re D.P. (2023) 14 Cal.5th 266, 283.)
“ ‘When no effective relief can be granted, an appeal is moot and will be
dismissed.’ ” (MHC Operating Limited Partnership v. City of San Jose (2003)
106 Cal.App.4th 204, 214; accord, Eye Dog Foundation v. State Board of
Guide Dogs for the Blind, at p. 541.)
In July 2020, when Young’s action was still pending below, Midland
Funding allowed the 10-year time period it had to enforce the 2010 default
judgment to expire under Code of Civil Procedure section 683.0203 without
applying for its renewal.4 Subsequently, both Young and the Midland parties
3 Code of Civil Procedure section 683.020 states: “Except as otherwise
provided by statute, upon the expiration of 10 years after the date of entry of
a money judgment or a judgment for possession or sale of property:
“(a) The judgment may not be enforced.
“(b) All enforcement procedures pursuant to the judgment or to a writ
or order issued pursuant to the judgment shall cease.
“(c) Any lien created by an enforcement procedure pursuant to the
judgment is extinguished.”
4 Midland Funding could have applied to renew the 2010 default
judgment before its expiration under Code of Civil Procedure section 683.130,
subdivision (a), which states in relevant part, “In the case of a lump-sum
money judgment . . . , the application for renewal of the judgment may be
filed at any time before the expiration of the 10-year period of enforceability
provided by Section 683.020 . . . .”
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took the position regarding the anti-SLAPP motions that Young’s three
equitable causes of action—for setting aside the default judgment based on
extrinsic mistake, setting aside the judgment based on extrinsic fraud, and a
declaration that the 2010 default judgment was void—were moot because of
the expiration of the 2010 default judgment.
At the hearing on the anti-SLAPP motions, the court indicated it was
amenable to dismissing the entire case as moot because of the expiration of
the time period to enforce the 2010 default judgment. The court asked
counsel for the Midland parties if she would “do a walk-away with a
dismissal” without the court ruling on the anti-SLAPP motions. Counsel
responded that she would not because, while the equitable causes of action
were moot, the Rosenthal Act cause of action was not in light of Young’s
allegations that the Midland parties should be held liable for violations of the
Act that they had already committed. As we have discussed, the trial court
ruled in favor of the Midland parties on their anti-SLAPP motions on the
ground that Young had not shown a probability of prevailing on the merits
without addressing whether the equitable causes of action were moot.
Based on the record before us, we conclude that Young’s equitable
claims are moot—and were moot when the trial court ruled on the
anti-SLAPP motions—because Midland Funding’s time to enforce the 2010
default judgment expired under Code of Civil Procedure section 683.020 in
July 2020. We agree with the parties that, in light of this expiration, we
cannot “ ‘provide any effective relief if [we] find[] reversible error’ ” (In re
David B., supra, 12 Cal.App.5th at p. 644) because there is not an actual
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controversy left to resolve.5 So we will reverse the trial court’s ruling on the
anti-SLAPP motions to the extent it deals with Young’s equitable causes of
action, and direct the trial court to dismiss those causes of action as moot on
remand. (Cf. Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134 [proper
disposition of appeal that became moot due to events that occurred during
pendency of appeal was to reverse and remand with directions to dismiss for
mootness, since simply dismissing the appeal would have implicitly affirmed
the judgment].)6
B. The Court Erred in Striking Young’s Rosenthal Act Cause of
Action Regarding Midland Funding and MCM
Young alleged in her Rosenthal Act cause of action and argued in her
opposition to the anti-SLAPP motions that the Midland parties engaged in
5 We note that the expiration of this 10-year enforcement time period
does not in all instances necessarily moot separate creditor actions on
judgments that are brought within the applicable statute of limitations. (See,
e.g., Pratali v. Gates (1992) 4 Cal.App.4th 632, 636–639 [action proper where
statute of limitations was tolled while party was out of state regardless of the
expiration of the enforcement period]; Code Civ. Proc., §§ 683.050, 337.5.)
Here, there is nothing in the record suggesting that a separate action on the
2010 default judgment could be timely brought.
6 The parties have not addressed the proper disposition of this appeal
with respect to the equitable causes of action following a determination of
mootness, and we have found no authority directly on point. But to avoid
leaving the same misimpression the Paul court sought to avoid—that it was
implicitly affirming the judgment there under review—we think the
dispositional approach taken in that case is appropriate here. In directing
that the equitable causes of action be dismissed as moot, we intimate no view
of the merits of those causes of action should the court find it necessary to
revisit the various issues that may arise (see, e.g., Stiles v. Wallis (1983)
147 Cal.App.3d 1143, 1147 [“ ‘Extrinsic mistake is found when . . . a mistaken
belief of one party prevented proper notice of the action . . . .’ ”]) in connection
with a renewed motion by the Midland parties for attorney fees under Code of
Civil Procedure section 425.16, subdivision (c)(1) on remand.
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acts that violated several provisions of the Rosenthal Act. We focus on the
parties’ contentions regarding sections 1788.17 and 1788.15, subdivision (a),
the two provisions of the Rosenthal Act that are most central to the opposing
arguments on this issue.
1. Young Showed She Would Probably Prevail on Her
Rosenthal Act Claim That the Midland Parties Violated
Civil Code Section 1788.17
a. Legal Standards
“The Rosenthal Act was enacted ‘to prohibit debt collectors from
engaging in unfair or deceptive acts or practices in the collection of consumer
debts.’ (§ 1788.1, subd. (b).) The Rosenthal Act is ‘ “a remedial statute [that]
should be interpreted broadly in order to effectuate its purpose.” ’ [Citation.]
It was enacted in 1977, the same year that its federal counterpart,[the
FDCPA] . . . was enacted. [Citation.] In addition to its other requirements
and prohibitions, the Rosenthal Act generally requires debt collectors to
comply with the provisions of the FDCPA. (§ 1788.17.)” (Davidson v. Seterus
(2018) 21 Cal.App.5th 283, 295, italics and fn. omitted.)
“A SLAPP suit—a strategic lawsuit against public participation—seeks
to chill rights to free speech or petition by dragging the speaker or petitioner
through the litigation process, without genuine expectation of success in the
suit. The Legislature enacted [Code of Civil Procedure] section 425.16 to
provide a summary disposition procedure for SLAPP claims. Toward this
end, [Code of Civil Procedure] section 425.16 authorizes courts, upon motion
by anyone who claims to be the target of a SLAPP suit, to probe the basis for
any cause of action allegedly arising from protected communicative activities,
and to strike it if the claimant cannot show minimal merit.” (Area 51
Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 591–592
(Area 51).)
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The heart of the anti-SLAPP statute is Code of Civil Procedure section
425.16, subdivision (b)(1), which provides: “A cause of action against a
person arising from any act of that person in furtherance of the person’s right
of petition or free speech under the United States Constitution or the
California Constitution in connection with a public issue shall be subject to a
special motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the
claim.” Code of Civil Procedure section 425.16, subdivision (b)(1) does not
provide a form of immunity, “insulat[ing] defendants from any liability for
claims arising from the protected rights of petition or speech.” (Baral, supra,
1 Cal.5th at p. 384.) Rather, the statute “only provides a procedure for
weeding out, at an early stage, meritless claims arising from protected
activity.” (Ibid.)
“Courts analyze anti-SLAPP motions using a familiar two-step
analysis.” (Area 51, supra, 20 Cal.App.5th at p. 592.) “First, the court
decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity. . . . If the
court finds such a showing has been made, it then determines whether the
plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “ ‘Only a cause
of action that satisfies both prongs of the anti-SLAPP statute—i.e., that
arises from protected speech or petitioning and lacks even minimal merit—is
a SLAPP, subject to being stricken under the statute.’ ” (Oasis West Realty,
LLC v. Goldman (2011) 51 Cal.4th 811, 820 (Oasis).)
The second stage of the anti-SLAPP test has been described “as a
‘summary-judgment-like procedure.’ ” (Baral, supra, 1 Cal.5th at p. 384.) A
plaintiff, to show it will probably prevail on a claim, must “state[] and
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substantiate[] a legally sufficient claim” (Equilon Enterprises v. Consumer
Cause, Inc., supra, 29 Cal.4th at p. 63) through “competent and admissible
evidence.” (Tuchscher Development Enterprises, Inc. v. San Diego Unified
Port Dist. (2003) 106 Cal.App.4th 1219, 1236.) “ ‘Put another way, the
plaintiff “must demonstrate that the complaint is both legally sufficient and
supported by a sufficient prima facie showing of facts to sustain a favorable
judgment if the evidence submitted by the plaintiff is credited.” ’ ” (Taus v.
Loftus (2007) 40 Cal.4th 683, 713–714 (Taus).)
At this second stage, “a plaintiff seeking to demonstrate the merit of
the claim ‘may not rely solely on its complaint, even if verified; instead, its
proof must be made upon competent admissible evidence.’ ” (Sweetwater
Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.)
We may consider inferences as well as direct evidence to determine
whether there is prima facie evidence in support of a plaintiff’s claim. “[T]he
proper inquiry in the context of an anti-SLAPP motion ‘is whether the
plaintiff proffers sufficient evidence for such an inference.’ ” (Oasis, supra,51 Cal.4th at p. 822; followed in Jenni Rivera Enterprises, LLC v. Latin
World Entertainment Holdings, Inc. (2019) 36 Cal.App.5th 766, 781.)
“ ‘[C]laims with the requisite minimal merit may proceed.’ ” (Baral, supra,1 Cal.5th at p. 385.) In conducting an assessment of the evidence proffered at
this second stage of the analysis, the court, as it would in summary
procedure, “ ‘does not weigh the credibility or comparative probative strength
of competing evidence.’ [Citation.] It ‘accepts the plaintiff’s evidence as true,
and evaluates the defendant’s showing only to determine if it defeats the
plaintiff’s claim as a matter of law’ ” (Monster Energy Co. v. Schechter (2019)
7 Cal.5th 781, 795), such as by “establishing a defense or the absence of a
necessary element” of the plaintiff’s cause of action. (1-800 Contacts, Inc. v.
15
Steinberg (2003) 107 Cal.App.4th 568, 585.) “ ‘[W]e resolve conflicts and
inferences in the record in favor of plaintiff.’ ” (Monster Energy Co. v.
Shechter, at p. 795.)
On appeal, we examine without deference an order granting an
anti-SLAPP motion to strike. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
In doing so, we conduct “an independent review of the entire record.” (Roche
v. Hyde (2020) 51 Cal.App.5th 757, 787.) We exercise our discretion to
examine all of the evidence the parties presented to determine if prima facie
evidence supports Young’s contentions. (Code Civ. Proc., § 425.16,
subd. (b)(2) [“In making its determination, the court shall consider the
pleadings, and supporting and opposing affidavits stating the facts upon
which the liability or defense is based”]; see Sweetwater Union High School
Dist. v. Gilbane Building Co., supra, 6 Cal.5th at p. 949 [“at the second stages
of an anti-SLAPP hearing, the court may consider affidavits, declarations,
and their equivalents if it is reasonably possible the proffered evidence set
out in those statements will be admissible at trial”].)
Our review will include facts of which the trial court properly took
judicial notice. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
291 [in determining whether anti-SLAPP plaintiff established a probability of
prevailing, “ ‘the trial court considers the pleadings and evidentiary
submissions of both the plaintiff and the defendant ([Code Civ. Proc.,]
§ 425.16, subd. (b)(2))’ ”]; Newport Harbor Offices & Marina, LLC v. Morris
Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 50 [court documents,
including pleadings, and prior appellate opinion were “proper subjects of a
request for judicial notice” below and considered by appellate court in
determining anti-SLAPP plaintiff’s probability of prevailing on claims];
Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Assn. (2018)
16
19 Cal.App.5th 399, 411–412, 422–423 [appellate court considered materials
judicially noticed below in determining anti-SLAPP plaintiff’s probability of
prevailing on claim].)
“If the trial court’s decision is correct on any theory applicable to the
case, we affirm the order regardless of the correctness of the grounds on
which the lower court reached its conclusion.” (Robles v. Chalilpoyil (2010)
181 Cal.App.4th 566, 573.) The reverse is true as well. If we conclude the
plaintiff has cleared the modest hurdle of showing a stricken claim has
“minimal merit” based on our independent review of the whole record—which
includes reasonable inferences drawn from evidence, as well as facts of which
the trial court properly took judicial notice—we will reverse and direct that
the claim may proceed.
We need not spend time addressing the first prong of the anti-SLAPP
test, since all parties agreed below and continue to agree on appeal that
Young’s Rosenthal Act cause of action arose from protected activity. We
focus, then, on the second step of the anti-SLAPP test—the requirement that
Young show her Rosenthal Act cause of action is legally sufficient and that
she will probably prevail on it.
b. There Is Prima Facie Evidence That Young Was a “Debtor”
Who Allegedly Owed “Consumer Debt”
The Midland parties argue as a separate and independent ground for
rejecting Young’s appeal that she did not proffer any evidence below to show
she was a “debtor” under the Rosenthal Act or that any debt qualified as a
“consumer credit transaction.” Although Young did not proffer evidence on
these specific issues, we conclude that the record regarding the anti-SLAPP
motions contains prima facie evidence to support her contention that she met
these statutory definitions.
17
Under the Rosenthal Act, a “debtor” “means a natural person from
whom a debt collector seeks to collect a consumer debt that is due and owing
or alleged to be due and owing from such a person.” (§ 1788.2, subdivision (h),
italics added.) Consistent with this definition, Young stated in her complaint
that she was “alleged to have incurred a financial obligation in the form of a
consumer credit account . . . . [Young] generally denies that any debt is
owed.” As part of their anti-SLAPP motions, the Midland parties asked the
trial court to take judicial notice of Midland Funding’s 2009 complaint
against Young. In it, Midland Funding alleged that Young owed a debt to it
based on an open book account. Thus, Young qualified as a “debtor” under
the Rosenthal Act.
Under the Rosenthal Act, “consumer debt” includes “money . . . due or
owing or alleged to be due or owing from a natural person by reason of a
consumer credit transaction.” (§ 1788.2, subd. (f ).) “The term ‘consumer
credit transaction’ means a transaction between a natural person and
another person in which property, services, or money is acquired on credit by
that natural person from the other person primarily for personal, family, or
household purposes.” (Id., subd. (e).) Consistent with these definitions,
Young stated in her complaint, “The alleged debt was primarily for personal,
family, or household purposes and is therefore a ‘consumer debt’ as that term
is defined by . . . [section] 1788.2[, subdivision] (f ).”
In support of their anti-SLAPP motions, the Midland parties submitted
a document authenticated by MCM’s senior project manager that establishes
that Young’s alleged debt meets these definitions. Specifically, the 2005 loan
agreement between Young and the predecessor lender (which lists the
Burlingame address as Young’s) states that she is being financed $6,483.25
and requires her to pay back $12,206 in principal and interest by April 2010.
18
The agreement includes a checked-off box that states, “You do intend to use
the proceeds of this loan primarily for personal, family, or household
purposes.” Although Midland Funding did not sue directly on this
agreement, it did sue on Young’s account which, according to the MCM senior
project manager’s declaration, includes this agreement. Upon considering
the reasonable inferences of this loan agreement, as we are to do at the
second stage of an anti-SLAPP motion (Oasis, supra, 51 Cal.4th at p. 822;
Jenni Rivera Enterprises, LLC v. Latin World Entertainment Holdings, Inc.,
supra, 36 Cal.App.5th at p. 781), we conclude Young has established prima
facie that she is a “debtor” and that her debt stems from a “consumer credit
transaction” under the Rosenthal Act.
c. There Is Prima Facie Evidence That Midland and MCM Acted
as Debt Collectors Regarding Young
The Midland parties also argue we should reject Young’s appeal
because she did not proffer any evidence below that shows either of them met
the definition of “debt collector” under the Rosenthal Act, and they further
argue that in any event we should reject Young’s appeal regarding MCM
because she proffered no evidence that it “directly engaged in the acts that
Young claims violated the Rosenthal Act.” Here too, we conclude that,
although Young did not proffer evidence on these specific issues, the record
regarding the anti-SLAPP motions contains prima facie evidence to support
her contentions that Midland Funding and MCM acted as “debt collectors”
under the Rosenthal Act regarding her account.
The Rosenthal Act defines a “debt collector” as “any person who, in the
ordinary course of business, regularly, on behalf of that person or others,
engages in debt collection.” (§ 1788.2, subd. (c).) Young alleged in her
complaint that Midland Funding and MCM each was a “debt collector” under
this definition.
19
The Midland parties submitted evidence in support of their anti-SLAPP
motions from which it can be inferred that they both met this definition
regarding Young’s account. This prima facie evidence includes the
declaration of the MCM senior project manager that the Midland parties
submitted in support of their anti-SLAPP motions, in which she stated that
she was the custodian of records responsible for maintaining MCM’s
documents relating to Young’s account. In the course of authenticating
certain documents, she also established that Midland Funding and MCM
worked hand-in-hand regarding Young’s account.
Specifically, the senior project manager stated, based on personal
knowledge, that Midland Funding purchased Young’s account from a
managing company of a previous lender in 2008 (the year before filing suit
against Young); that MCM, on behalf of Midland Funding, obtained various
business records related to Young’s account from that managing company,
including the 2005 loan agreement; and that, as we have discussed, MCM
created a seller data sheet for Young that Midland Funding relied on, and
which lists her residential address as the Burlingame address.
Further, in paragraphs three through five of her declaration, the senior
project manager stated, “3. At all times relevant, Midland [Funding] was a
passive debt buyer that purchased portfolios of charged off credit card debt.
[¶] 4. Midland [Funding] takes no action itself to collect the debt it owns. [¶]
5. Rather, Midland[ Funding]’s corporate affiliate, MCM, services the
accounts, including by receiving and maintaining account documents for the
individual accounts,” including Young’s account.
The MCM senior project manager also stated that Midland Funding,
through its retained outside counsel, filed suit against Young in 2009 for
$8,529.93, which Young owed on her account. She continued, “At all times
20
relevant, Midland [Funding] was represented by outside, independent legal
counsel in connection with the Underlying Lawsuit and all judgment
enforcement activity regarding [Young’s] [a]ccount.” This is confirmed by the
record, which includes the complaint filed against Young in 2009 and the
2010 default judgment, as well as the 2019 wage garnishment order and
Young’s employer’s return, all of which the Midland parties asked the trial
court to take judicial notice of as part of their anti-SLAPP motions. Each of
these documents contains an indication that it was prepared by attorneys for
Midland Funding.
Here again, after considering reasonable inferences drawn from this
record, as we must in evaluating the adequacy of an anti-SLAPP motion
step-two showing, we conclude there is prima facie evidence Midland
Funding was in the business of purchasing portfolios of charged-off credit
card debt. Further, although “passive” in engaging in efforts to collect this
debt, it nonetheless authorized its attorneys to file suit on its behalf against
debtors such as Young and engage in efforts to collect such as the
garnishment of a debtor’s wages.7 Thus, there is prima facie evidence that
Midland Funding acted as a debt collector under the Rosenthal Act, i.e., as a
“person who, in the ordinary course of business, regularly, on behalf of that
person or others, engages in debt collection.” (§ 1788.2, subd. (c).)
We reach this same conclusion regarding MCM based on its senior
project manager’s declaration. It establishes that Midland Funding took “no
action itself to collect the debt it owns” but, “[r]ather, Midland[ Funding]’s
corporate affiliate, MCM, services the accounts . . . .” MCM received the
documents regarding Young’s account from the managing company of the
7As we will discuss in part B.2., post, such garnishment efforts are
against consumers, contrary to the Midland parties’ contentions.
21
previous lender and MCM prepared a seller data sheet identifying Young’s
address. Moreover, the senior project manager indicated, based on personal
knowledge, that Midland Funding relied on this seller address sheet, which
lists Young as residing at the Burlingame address—a fact she could only
know if MCM worked with Midland Funding directly in pursuing collection of
Young’s purported debt. From these statements, it can be reasonably
inferred that MCM serviced Young’s account for Midland Funding as part of
its ordinary course of business and regularly engaged in debt collection,
including by engaging in the filing of the 2009 lawsuit against Young, the
service of process on her, the obtaining of the 2010 default judgment, and the
effort to garnish her wages. Young has therefore established prima facie it
was a “debt collector” regarding her account.
d. There Is Prima Facie Evidence That the Midland Parties
Violated Civil Code Section 1788.17
While the parties devote some of their arguments here on appeal to the
threshold “debtor,” “consumer credit transaction,” and “debt collector” issues,
in the trial court the focal point of their anti-SLAPP step-two arguments was
on the viability of two core factual contentions—(1) the Midland parties
falsely and deceptively represented in Midland Funding’s lawsuit against
Young that substituted service of process on her was effected in 2009 when in
fact she had never been served, and (2) the Midland parties subsequently and
repeatedly relied on this misrepresentation in their efforts to obtain a default
judgment and collect on that judgment, even after Young, through her
attorney, advised counsel for Midland Funding in December 2019 that
substituted service had never been legally effected.
The particulars are these. According to Young, the Midland parties
“obtained an Entry of Default and Judgment by default against Plaintiff by
filing a Proof of Service of Summons that was known by Defendants to be
22
false and fraudulent. [Young] has notified [the Midland parties] of the falsity
of their Proof of Service of Summons and the invalidity of the Judgment they
obtained by default, but [the Midland parties] have refused and continue to
refuse to stipulate to set aside the void judgment.” (Fn. omitted.) Consistent
with these allegations, Young further alleged that the Midland parties “made
and used false, deceptive, and misleading representations in an attempt to
collect the debt, in violation of . . . [section] 1788.17,” and in an accompanying
footnote she specifically cited sections 1692e and 1692e(10) of title 15 of the
United States Code, which, as we will discuss, section 1788.17 incorporates.
In opposing the anti-SLAPP motions, Young drew attention to these specific
allegations, focusing in particular on the “false” proof of service of summons
filed in the lawsuit against her and the Midland parties’ continued demands
for payment after her attorney gave them notice in December 2019 that
substituted service on Young had never been legally effected.
Notably, however, other than her claim that the Midland parties
continued to demand payment from her after being notified in December
2019 that substituted service on Young had never been effected, Young does
not distinguish between representations the Midland parties knew to be false
and representations that were “false” even if the Midland parties did not
know it. This distinction matters because of two Rosenthal Act provisions
upon which Young places great reliance, sections 1788.15, subdivision (a),
and 1788.17. The Midland parties argue that Young did not make a prima
facie showing that they violated the Rosenthal Act not only because
substituted service on her was legally effected in 2009, but also because, even
if it was not, Young failed to show they made any representation about
service that they knew was false. They argue this lack of evidence is fatal to
Young’s Rosenthal Act cause of action because under section 1788.15,
23
subdivision (a), she was required to make a prima facie showing of such
knowledge and, further, that section 1788.15, subdivision (a) controls over
section 1788.17 to the extent the latter may authorize a Rosenthal Act claim
based on an unknowingly false representation.
We conclude that Young made a prima facie showing that she was not
served with process and that the Midland parties’ representation that she
was served was false. Although we agree with the Midland parties that
Young did not make any showing they knew this representation was false, we
conclude that (1) no such showing was required under section 1788.17—
which, as we shall explain, recognizes claims for liability on a strict liability
basis—and (2) section 1788.17 controls over section 1788.15, subdivision (a)
to the extent the two provisions might conflict.
i. Young Made a Prima Facie Showing That Substituted Service
on Her Was Not Legally Effected
Young supported her core factual contention about the lack of service of
process with declarations from herself, her mother, her stepfather and her
brother. Young declared that she did not discover the 2010 default judgment
or receive any of the lawsuit documents before 2019; did not reside at the
Burlingame address after 2001; and resided at a different address, which she
identified, in 2009. She further declared that the 2005 loan agreement listed
the Burlingame address as hers incorrectly, perhaps because that agreement
“shows that the overwhelming majority of the loan proceeds were kept by the
creditor for refinancing of a prior loan account. As such, it is possible that
the creditor used an old address without me noticing.”
Young’s mother, stepfather, and brother each declared that he or she
had resided at the Burlingame address for decades, including in 2009. They
each stated that after 2001, Young did not reside at the Burlingame address
or receive any mail there and that no lawsuit documents intended for Young
24
had ever been served or delivered to the Burlingame address or to any of
them.
Young relied on a declaration from her attorney to contend that the
Midland parties knew as of December 2019 that she had never been served,
but nonetheless continued thereafter with improper collection efforts.
Young’s attorney declared that he faxed a letter to the counsel of record for
Midland Funding on December 19, 2019, in which he acknowledged that
Midland Funding had filed proof of service of process documents with the
superior court in 2009 showing that substituted service on Young had been
effected. Nonetheless, he asserted in his letter based on a declaration by
Young, “it appears credible that [Young] was not served with process in this
case.” He further asserted in his declaration that, despite his letter, the
Midland parties “have, through counsel, made demands for payment (i.e.,
attempted to collect the alleged debt) . . . .”
We conclude that Young, via her declaration and those of her family
members, made a prima facie showing that she was not served with process
by substituted service. In evaluating the merits of a special anti-SLAPP
motion to strike, we do not weigh the credibility or strength of an opposing
party’s evidence, but accept it as true, and resolve any conflicts and
inferences in that party’s favor. (Monster Energy Co. v. Schechter, supra,7 Cal.5th at p. 795.) Under this standard, Young made a prima facie showing
that the Burlingame address was not her “dwelling house [or] usual place of
abode” via the declarations by her and her family, which indicate she resided
elsewhere and did not receive mail at the Burlingame address when
substituted service was attempted in 2009. Given these contentions, any
attempt at substituted service at the Burlingame address would have been
ineffective. (See Code Civ. Proc., § 415.20, subdivision (b) [providing for
25
substituted service to a competent member of a household or a person
apparently in charge provided that service is effected “at the person’s
dwelling house, usual place of abode, . . . or usual mailing address”].)
The Midland parties point out that under Evidence Code section 647,
“[t]he return of a process server . . . establishes a presumption, affecting the
burden of producing evidence, of the facts stated in the return.” They argue
this presumption applies here despite Young’s evidence because substituted
service may be effected by leaving the documents with any adult “apparently
in charge” under Code of Civil Procedure section 415.20, and Young does not
present any evidence that substituted service on her was not effected via such
a person.
This argument fails for two reasons. First, the process server attested
that he served a person who was “a competent member of the household,” not
someone “apparently in charge.” The Midland parties’ contention that
substituted service was effected via someone apparently in charge of the
household at the Burlingame address therefore lacks any evidentiary
support. Second, as we have just discussed, regardless of who was served,
Young proffered competent evidence, in the form of declarations from her and
members of her family, that this was not her dwelling place, usual place of
abode, or usual mailing address, which was a requirement for any
substituted service to be effective under Code of Civil Procedure section
415.20, subdivision (b). This evidence overcomes any presumption created by
the return of substituted service of process documents. (See, e.g., Farr v.
County of Nevada (2010) 187 Cal.App.4th 669, 680–681 [“if a presumption
affecting the burden of producing evidence ‘applies to a proposition, the
proponent of the proposition need not prove it unless the opposing party
produces evidence undermining it, in which case the presumption is
26
disregarded and the trier of fact must decide the question without regard to
it’ ” (italics added)].) The Midland parties’ arguments that Young failed to
make a prima facie showing that substituted service was not legally effected
on her are without merit.
ii. Young Did Not Make a Prima Facie Showing That the Midland
Parties Knowingly Made a False Representation About Service
Emphasizing the chronology of events in November and December
2019, the Midland parties pursue an alternative argument that spotlights
another potential deficiency in Young’s merits showing, and here they are
correct: None of the evidence she submitted in her opposition to the
anti-SLAPP motions shows or implies that the Midland parties ever knew she
was not served, either before or after her attorney’s December 12, 2019 letter
to the attorney for Midland Funding. To the contrary, the 2009 proof of
substituted service of process documents arguably gave the Midland parties
good reason to think that Young was properly served with process.
Further, Young fails to explain why the Midland parties were required
by law to rely on her and her attorney’s December 2019 contentions in a
letter to counsel for Midland Funding about the lack of service. We see no
reason why the Midland parties were required to conclude these contentions
were correct any more than a court or fact finder would be required to believe
them. (See, e.g., California Chamber of Commerce v. State Air Resources Bd.
(2017) 10 Cal.App.5th 604, 643, fn. 26 [“The fact a declaration appears in the
record and was not directly contravened does not necessarily establish the
truth of its contents. A trial court is free to disbelieve evidence whether or
not contradicted, if there is a rational basis for doing so.”]; see also Foreman
& Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890 [“As a general rule,
‘[provided] the trier of fact does not act arbitrarily, he may reject in toto the
testimony of a witness, even though the witness is uncontradicted.’ ”].)
27
Accordingly, we conclude that Young failed to make a prima facie
showing that the Midland parties knew at any time that Young was not
served by substituted service and, therefore, failed to show that they made
any knowing misrepresentations about service.
iii. Civil Code Section 1788.17 Incorporates the FDCPA’s Strict
Liability Standard
Young’s failure to make a prima facie case that the Midland parties
deliberately ignored their obligation to serve her draws into sharp relief the
parties’ competing interpretations of sections 1788.15, subdivision (a) and
1788.17. Thus, we now turn to whether Young’s prima facie showing that the
Midland parties unknowingly made false representations Young had been
served violated the Rosenthal Act. This requires us to address a question
that, so far as we are aware, is a matter of first impression in the California
courts.
Analytically, the issue arises as follows. Section 1788.15,
subdivision (a) provides, “No debt collector shall collect or attempt to collect a
consumer debt by means of judicial proceedings when the debt collector
knows that service of process, where essential to jurisdiction over the debtor
or his property, has not been legally effected.” (Italics added.) Further, as
our First District, Division One colleagues have held, under section 1788.15,
subdivision (a), “[u]se of judicial proceedings to collect a debt without service
of process [citation] will also be a continuing course of conduct insofar as the
conduct involves multiple acts, such as obtaining and collecting on a
judgment, that extend over a period of time before the proceedings are
concluded.” (Komarova v. National Credit Acceptance, Inc. (2009)
175 Cal.App.4th 324, 344 (Komarova).) In light of the repeated pattern of
conduct violating multiple provisions of the Rosenthal Act, the Komarova
court held, the plaintiff satisfactorily showed a violation of “section 1788.15,
28
subdivision (a), which prohibits an ‘attempt to collect a consumer debt by
means of judicial proceedings’ when service of process has been knowingly
neglected.” (Komarova, at p. 345, italics added.)
To overcome the hurdle section 1788.15, subdivision (a) creates, Young
relies on section 1788.17, which states in relevant part, “Notwithstanding
any other provision of this title, every debt collector collecting or attempting
to collect a consumer debt shall comply with the provisions of Sections 1692b
to 1692j, inclusive, of, and shall be subject to the remedies in Section 1692k
of, Title 15 of the United States Code.” According to Young, “[t]he linchpin”
of the Midland parties’ efforts to wage a “shoddy” collection campaign against
her is their “false representation that they had properly served YOUNG, and
thus that the Court had jurisdiction over YOUNG to enter [the 2010 default
judgment]. This false representation in an attempt to collect a debt is a clear
violation of Civil Code [section] 1788.17, incorporating by reference 15 U.S.C.
[sections] 1692e and 1692e(10). Each subsequent representation by [the
Midland parties] in an attempt to collect the void Judgment necessarily
incorporates this false representation, repeats it, and becomes another false
representation in an attempt to collect a debt.”
We agree with Young that section 1788.17 governs. Section 1692e of
title 15 of the United States Code is a part of the FDCPA. (Meza v. Portfolio
Recovery Associates, LLC (2019) 6 Cal.5th 844, 851.) In legal effect, what we
have here is a federal liability standard embedded in state law. “The
Rosenthal Act . . . incorporates the FDCPA, so that a violation of the FDCPA
is per se a violation of the Rosenthal Act.” (Best v. Ocwen Loan Servicing,
LLC (2021) 64 Cal.App.5th 568, 576, citing § 1788.17.) Section 1692e
provides in relevant part that a debt collector may not use any “false . . .
representation or means in connection with the collection of any debt,”
29
including but not limited to regarding “the character, amount, or legal status
of any debt” (15 U.S.C. § 1692e(2)(A), italics added), “[t]he threat to take any
action that cannot legally be taken or that is not intended to be taken”
(15 U.S.C. § 1692e(5)), and “[t]he use of any false representation or deceptive
means to collect or attempt to collect any debt . . . concerning a consumer”
(15 U.S.C. § 1692e(10), italics added). As Young points out, each of these
FDCPA provisions is incorporated in section 1788.17.
To be sure, Young does not cite any California case, and we have not
found one, that establishes whether section 1788.17, by incorporating title 15
United States Code section 1692e, prohibits a debt collector from
unknowingly making or relying on a false representation about the legal
status of a debt, a threat to take legal action that legally cannot be taken, or
a false representation to collect or attempt to collect any debt of a consumer.
Numerous non-California courts have held that a debt collector is liable
under the FDCPA for unknowingly making false representations.8 (See, e.g.,
Clark v. Capital Credit & Collection Servs. (9th Cir. 2006) 460 F.3d 1162,
1174–1176 [agreeing with the Second and Seventh Circuits that “ ‘[title 15
United States Code] § 1692e applies even when a false representation was
unintentional’ ”], citing Gearing v. Check Brokerage Corp. (7th Cir. 2000)
233 F.3d 469, 472, Turner v. J.V.D.B. & Assoc., Inc. (7th Cir. 2003) 330 F.3d
991, 995, and Russell v. Equifax A.R.S. (2d Cir. 1996) 74 F.3d 30, 36; White v.
First Step Group LLC (E.D.Cal., Sept. 19, 2017, No. 2:16-cv-02439-KJM-
8As the Midland parties acknowledge, because section 1788.17
incorporates provisions of the FDCPA, case law interpreting the FDCPA
applies to Rosenthal Act claims. (Kazerouni v. LVNV Funding, LLC
(C.D.Cal., Dec. 17, 2014, No. SACV 14-01282-CJC (JCCx)) 2014 U.S.Dist.
LEXIS 201219 at p. *4 [“The Rosenthal Act incorporates the FDCPA and
makes a violation of the FDCPA actionable under California law”].)
30
GGH) 2017 U.S.Dist. LEXIS 153569 at pp. *25–*26 [debt collector’s
“argument that it was entitled to reasonably rely on the debt amount as
reported to it . . . is unavailing in the face of the FDCPA as a strict liability
statute that does not require the collector’s knowing or intentional violation”];
Gonzalez v. Cullimore (Utah 2018) 417 P.3d 129, 132, 139–140 [the
“overwhelming majority of jurisdictions . . . have almost unanimously held
that the FDCPA is a strict liability statute . . . [a]nd most . . . have explicitly
stated that [title 15 United States Code] § 1692e is a strict liability provision”
and that “ ‘a consumer need not show intentional conduct by the debt
collector to be entitled to damages’ ”].)
Further, two unpublished federal district court cases9 have recognized
that an FDCPA claim can be brought under title 15 United States Code
section 1692e(10) based on a false representation about service of process,
even if made unknowingly. In Hooper v. Midland Funding, LLC (N.D.Ala.,
July 30, 2021, No. 2:19-cv-01601-HNJ) 2021 U.S.Dist. LEXIS 142587, Hooper
sued Midland Funding for violating the FDCPA based on the contention that
Midland Funding failed to effect service of process on him in a prior state
court collection lawsuit. (Hooper, at pp. *1–*2.) He contended that Midland
Funding “filed a false proof of service in the collection action, which enabled it
to obtain a default judgment and ultimately garnish his wages.” (Id. at
p. *2.) In considering Midland Funding’s motion for summary judgment and
Hooper’s motion for partial summary judgment (ibid.), the district court
rejected Midland Funding’s contention that Hooper’s claim failed for lack of
evidence that Midland Funding knowingly filed a falsified service return form
9We may cite unpublished federal cases as persuasive authority
without violating the California Rules of Court. (Farm Raised Salmon Cases
(2008) 42 Cal.4th 1077, 1096, fn. 18; Nungaray v. Litton Loan Servicing, LP
(2011) 200 Cal.App.4th 1499, 1501, fn. 2.)
31
because, the court determined, the FDCPA “ ‘typically subjects debt collectors
to liability even when violations are not knowing or intentional.’ ” (Hooper, at
p. *18, quoting Owen v. I. C. Sys., Inc. (11th Cir. 2011) 629 F.3d 1263, 1270.)
Although the court ultimately granted Midland Funding’s motion for
summary judgment and denied Hooper’s motion for partial summary
judgment on other grounds (Hooper v. Midland Funding, LLC, supra, at
pp. *19–*36), it concluded that “Midland’s good faith bears no relevance upon
the issue whether it may incur liability for filing the allegedly falsified
service return form.” (Id. at p. *18.)
Similarly, in Mirshafiei v. Legal Recovery Law Offices, Inc. (C.D.Cal.
Oct. 5, 2016, No. SACV- 5-00873-CJC (DFMx)) 2016 U.S.Dist. LEXIS 143625,
Mirshafiei sued Legal Recovery Law Offices, Inc. (Legal Recovery) for
violating the FDCPA, including under title 15 United States Code section
1692e, for filing an invalid proof of service with the state court. (Mirshafiei,
at pp. *3–*6.) Legal Recovery or its process server filed a proof of service of
summons in a state court action filed by Legal Recovery against Mirshafiei to
recover a debt, which proof of service represented that substituted service
had been effected on Mirshafiei, although she “had not lived at the address
listed on the proof of service for two years, as the property went through
foreclosure.” (Id. at p. *4.) In granting Mirshafiei’s motion for partial
summary judgment in substantial part, the district court concluded that
there was “no genuine dispute of material fact that the proof of service was a
‘false representation’ that [Mirshafiei] had been properly served, and that
[Legal Recovery] specifically employed this false representation to collect a
debt against [her].” (Id. at pp. *13–*14, see p. *31.) The court rejected Legal
Recovery’s argument that “it was unaware that [Mirshafiei] did not reside at
32
that address at that time” because “[t]he FDCPA does not require
knowledge.” (Id. at p. *14.)
Based on this well-established body of case law, we hold that section
1788.17, by its incorporation of title 15 United States Code section 1692e,
permits a Rosenthal Act plaintiff to state a prima facie case for liability
where a defendant unknowingly made or relied on a false representation
about the legal status of a debt or employed a false representation as a means
to attempt the collection of a debt.
But we so hold with a caveat. The courts in Hooper and Mirshafiei
categorically rejected defense attempts to argue that violations of section
1692e of the FDCPA must be knowing and intentional, which is consistent
with the terminology of “strict liability” that may be found in the body of
authority of which they are part. But that only means scienter is not a claim
element that the plaintiff must prove to establish liability. The FDCPA
recognizes an “exception to the strict liability imposed upon debt collectors by
the FDCPA.” (Picht v. Jon R. Hawks, Ltd. (8th Cir. 2001) 236 F.3d 446, 451.)
A debt collector may not be held liable under the FDCPA if it shows by a
preponderance of the evidence that the alleged FDCPA violation “was not
intentional and resulted from a bona fide error notwithstanding the
maintenance of procedures reasonably adapted to avoid any such error.”
(15 U.S.C. § 1692k(c); Fox v. Citicorp Credit Servs. (9th Cir. 1994) 15 F.3d
1507, 1514.) This exception “is an affirmative defense, for which [the debt
collector] has the burden of proof at trial.” (Fox, at p. 1514.)
So too with the Rosenthal Act. Under section 1788.30, subdivision (e),
“A debt collector shall have no civil liability to which such debt collector
might otherwise be subject for a violation of this title, if the debt collector
shows by a preponderance of evidence that the violation was not intentional
33
and resulted notwithstanding the maintenance of procedures reasonably
adapted to avoid any such violation.” Because, as under section 1692k(c) of
the FDCPA, the burden of proof is expressly allocated to the alleged debt
collector, section 1788.30, subdivision (e) provides an affirmative defense that
must be proved. (Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th
1658, 1668 [“the defendant bears the burden of proof on new matter and
affirmative defenses”].)
The Midland parties did not invoke section 1788.30, subdivision (e), in
the trial court and do not raise it on appeal. At this stage, therefore, we deal
only with whether Young mounted a prima facie case of liability under
section 1788.17. We do not address and express no view about whether, as
the case proceeds, the Midland parties may successfully pursue a defense
under section 1788.30, subdivision (e).
iv. Young Made a Sufficient Showing Because Civil Code Section
1788.17’s “Strict Liability” Standard Controls over Civil Code
Section 1788.15, Subdivision (a)’s “Knowledge” Standard
Our holding on the issue of scienter does not complete our inquiry.
According to the Midland parties, “[o]ther than Section 1788.15, no provision
of the Rosenthal Act imposes liability for continuing to prosecute a collections
action or executing a judgment when a proof of service might later be proven
inaccurate.” This is incorrect. In our view, Young can state—and has
stated—a prima facie Rosenthal Act cause of action under section 1788.17
based on the Midland parties’ purportedly false representations about service
of process on Young in 2009, even if unknowing, because of section 1788.17’s
incorporation of section 1692e of title 15 of the United States Code, a “strict
liability” statute. The Midland parties insist that, regardless, section
1788.15, subdivision (a) controls over section 1788.17 because otherwise
section 1788.15, subdivision (a) would be surplusage. This too is incorrect.
34
Section 1788.17 expressly states that “[n]otwithstanding any other provision
of this title” (italics added), debt collectors are to comply with certain
provisions of the FDCPA, including section 1692e of title 15 of the United
States Code.
Midland’s surplusage argument fails under conventional principles of
statutory construction. (See Timlick v. National Enterprise Systems, Inc.
(2019) 35 Cal.App.5th 674, 682–683 [using standard tools of statutory
interpretation to analyze whether the enactment of section 1788.17, with its
incorporation of FDCPA provisions, repealed section 1788.30, subd. (d)]
(Timlick).) “Our primary task ‘in interpreting a statute is to determine the
Legislature’s intent, giving effect to the law’s purpose. [Citation.] We
consider first the words of a statute, as the most reliable indicator of
legislative intent. [Citation.]’ [Citation.] We construe the statute’s words in
context, harmonizing statutory provisions to avoid absurd results.”
(California Building Industry Assn. v. State Water Resources Control Bd.
(2018) 4 Cal.5th 1032, 1041.) “We may not, under the guise of construction,
rewrite the law or give the words an effect different from the plain and direct
import of the terms used.” (California Fed. Savings & Loan Assn. v. City of
Los Angeles (1995) 11 Cal.4th 342, 349.) “[A]n interpretation that renders
other provisions ineffective or nugatory should be avoided,” however. (Hoitt
v. Department of Rehabilitation (2012) 207 Cal.App.4th 513, 523.)
Mindful of these principles, we reject the Midland parties’ surplusage
argument for two reasons. First, we are not persuaded that sections 1788.15,
subdivision (a) and 1788.17 are directly in conflict in all instances. That a
debt collector cannot attempt to collect a debt via judicial proceedings when
the debt collector knows service of process has not been legally effected (as
provided for in section 1788.15, subdivision (a)) does not necessarily mean the
35
debt collector is entitled to unintentionally make false statements about
service in a court proceeding (as prohibited by section 1788.17). The former
statute regulates a debt collector’s employment of a legal proceeding; the
latter regulates that collector’s representations in, among other things, such
proceedings. Thus, section 1788.15 prohibits a debt collector from employing
a lawsuit in which it knows service was not effected even if it does not make
any false representations regarding service; section 1788.17 does prohibit any
such activity.
In Timlick, our colleagues in Division Three faced a similar issue when
they considered whether the Legislature’s enactment of section 1788.17, with
its incorporation of certain FDCPA remedies provisions, repealed the “cure”
provision contained in subdivision (d) of section 1788.30, also a part of the
Rosenthal Act.10 The Timlick court concluded, based on the plain language of
the statute, legislative history and similar Ninth Circuit case law, that
section 1788.17 does not repeal section 1788.30 subdivision (d) because the
former incorporates FDCPA remedies while the latter provides certain
defenses. (Timlick, supra, 35 Cal.App.5th at pp. 682–685.)
Here, Young’s contentions focus on the Midland parties’
representations in, not their employment of, the lawsuit Midland Funding
filed against her in 2009. Similar to those in Timlick, Young’s contentions
necessarily implicate section 1788.17’s prohibition against false
representations, but do not necessarily implicate section 1788.15,
10 Section 1788.30, subdivision (d) provides, “A debt collector shall have
no civil liability under this title if, within 15 days either after discovering a
violation which is able to be cured, or after the receipt of a written notice of
such violation, the debt collector notifies the debtor of the violation, and
makes whatever adjustments or corrections are necessary to cure the
violation with respect to the debtor.”
36
subdivision (a)’s prohibition against a debt collector’s employment of a legal
proceeding knowing service has not been effected. That is why allowing
Young to maintain a claim against the Midland parties under section 1788.17
does not necessarily render section 1788.15, subdivision (a) surplusage as the
Midland parties contend.
Second, section 1788.17 expressly states, “Notwithstanding any other
provision of this title, every debt collector collecting or attempting to collect a
consumer debt shall comply with the provisions of Sections 1692b to 1692j,
inclusive, of . . .Title 15 of the United States Code.” (Italics added.) This
introductory phrase is determinative here. “When the Legislature intends for
a statute to prevail over all contrary law, it typically signals this intent by
using phrases like ‘notwithstanding any other law’ or ‘notwithstanding other
provisions of law.’ ” (In re Greg F. (2012) 55 Cal.4th 393, 406.) Accordingly,
courts have held regarding a variety of subjects that a provision that includes
such a phrase controls over other provisions of law regarding the same
subject.
The court in Molenda v. Department of Motor Vehicles (2009)
172 Cal.App.4th 974 summarized some of this law: “In People v. DeLaCruz
(1993) 20 Cal.App.4th 955, 963, the court explained that the language
‘notwithstanding other provisions of law’ in Penal Code section 12403.7 is a
‘term of art’ that ‘has been read as an express legislative intent to have the
specific statute control despite the existence of other law which might
otherwise govern.’ (Accord, People v. Franklin (1997) 57 Cal.App.4th 68,
73–74 [interpreting Pen. Code, § 667, subds. (c), (d), (f )(1)].) In California
Housing Finance Agency v. E.R. Fairway Associates I (1995) 37 Cal.App.4th
1508, 1515–1516, the court explained: “ ‘The introductory phrase of [Health
and Safety Code] section 51205(f ), “[n]otwithstanding any other provision of
37
law,” qualifies the operative language of the section entitling the prevailing
party to recover “costs and reasonable attorney’s fees.” Thus “any other
provision of law” relating to costs, to the extent contrary to or inconsistent
with [Health and Safety Code] section 51205(f ), is subordinated to the latter
provision.’ ” (Molenda, at p. 995.)
As the Timlick court mentioned, two Ninth Circuit cases have relied on
the “notwithstanding” language in section 1788.17 to conclude that section
1788.17, with its incorporation of certain FDCPA remedies provisions,
“nullified” certain limitations on remedies contained in section 1788.30.
(Timlick, supra, 35 Cal.App.5th at pp. 682–683, citing Afewerki v. Anaya Law
Group (9th Cir. 2017) 868 F.3d 771, 779 and Gonzales v. Arrow Financial
Services, LLC (9th Cir. 2011) 660 F.3d 1055, 1065.) We agree with and adopt
this interpretation of the Rosenthal Act here. Based on the plain meaning of
the introductory phrase of section 1788.17, i.e., “[n]otwithstanding any other
provision of this title, every debt collector collecting or attempting to collect a
consumer debt shall comply with the provisions of Sections 1692b to 1692j,
inclusive, of . . . Title 15 of the United States Code,” we conclude the
Legislature intended that section 1788.17 control to the extent it conflicts
with section 1788.15, subdivision (a).11
11 “The Legislature is presumed to be aware of all laws in existence
when it passes or amends a statute.” (In re Greg F., supra, 55 Cal.4th at
p. 407.) Given this presumption, section 1788.17’s enactment more than two
decades after section 1788.15 (Stats. 1999, ch. 319, § 2, p. 2469 [§ 1788.17];
Stats. 1977, ch. 907, § 1, p. 2776 [§ 1788.15]) further indicates the
Legislature’s intention that it controls to the extent it is inconsistent with
section 1788.15, subdivision (a). (See Canteen Corp. v. State Bd. of
Equalization (1985) 174 Cal.App.3d 952, 960 [“when two laws upon the same
subject, passed at different times, are inconsistent with each other, the one
last passed must prevail”]; Western Mobilehome Assn. v. County of San Diego
(1971) 16 Cal.App.3d 941, 948 [same].)
38
Accordingly, because Young made a prima facie showing that the
Midland parties made a false representation that substituted service was
effected on her in 2009, even if it was an unknowing false representation, the
court should have denied the Midland parties’ anti-SLAPP motions regarding
her Rosenthal Act cause of action.
e. There Is No Merit to the Argument That, Under Baral v. Schmidt,
We Must Address What the Midland Parties Characterize as
Young’s “Derivative Claims”
Included in Young’s Rosenthal Act cause of action is a single
paragraph, paragraph 50, consisting of a series of five, one-sentence
subparagraphs, lettered (a) through (e), alleging various violations of the
Rosenthal Act.12 While the parties’ primary focus here on appeal has been on
section 1788.17 (misrepresentation that service was properly effected), in
paragraph 50 of her complaint Young also alleges that the Midland parties
violated sections 1788.15, subdivision (a) (alleged pursuit of a collection
action when knowing that service had not been effected), 1788.13, subdivision
(e) (misrepresentation that the alleged debt may be increased by the addition
12 “a. Defendants made and used false, deceptive, and misleading
representations in an attempt to collect the debt, in violation of Cal. Civil
Code § 1788.17; [¶] b. Defendants misrepresented the character, amount, or
legal status of the debt, in violation of Civil Code §§ 1788.13(e) and 1788.17;
[¶] c. Defendants attempted to collect the debt from Plaintiff without notice
required by both the United States Constitution and the Constitution of the
State of California, an action that cannot lawfully be taken, in violation of
Civil Code §§ 1788.13(e) and 1788.17; [¶] d. Defendants attempted to collect a
consumer debt from Plaintiff by means of judicial proceedings after
Defendants knew that service of process on Plaintiff had not been legally
effected, in violation of Civil Code § 1788.15(a) and 1788.17; [¶] and
e. Defendants attempted to collect interest, fees, or other charges from
Plaintiff that are not expressly authorized by the agreement creating the debt
or otherwise permitted by law, in violation of Civil Code §§ 1788.13(e),
1788.14(b), and 1788.17.” (Footnotes omitted.)
39
of certain fees or finance and other charges if they may not be legally added
to the existing obligation) and 1788.14, subdivision (b) (collecting or
attempting to collect fees, charges, or other expenses incurred by the debt
collector).
In footnotes appended to paragraph 50, Young cites, as additional legal
authority for this potpourri of statutory violations, 15 United States Code
sections 1692e (use of false, deceptive, or misleading representations as a
means of debt collection), 1692e(2) (falsely representing the character,
amount, or legal status of any debt as a means to collect the debt), 1692e(5)
(threatening to take legal action that cannot legally be taken or that the
creditor does not intend to take), 1692e(10) (the use of any false
representation or deceptive means to collect or attempt to collect any debt or
to obtain information concerning a consumer) and 1692f (use of unfair or
unconscionable means to collect or attempt to collect any debt). Thus,
together with the statutes cited in the footnote, Young pleads the violation of
eight distinct statutory provisions, each having its own substantive elements.
In their responding brief, the Midland parties characterized the various
legal bases for these claims of statutory violation other than under section
1788.17 as Young’s “derivative claims” of liability under the Rosenthal Act.
Arguing in the alternative, they contended that, even if we determined
Young’s section 1788.17 claim had minimal merit and may proceed, we must
address her “derivative claims” of liability and determine whether she made
a showing of minimal merit in support of each one of them. We declined to do
so in the original opinion filed in this appeal, explaining, “If the plaintiff ‘can
show a probability of prevailing on any part of its claim, the cause of action is
not meritless’ and will not be stricken.” (Oasis, supra, 51 Cal.4th at p. 820.)
For the first time in the briefing on this appeal, the Midland parties cited
40
Baral, supra, 1 Cal.5th 376, in a petition for rehearing. They asked that we
grant rehearing because, according to them, the passage from Oasis that we
cited was overruled sub silentio in Baral. That part of the Oasis opinion, the
Midland parties argued, relied on the so-called “Mann rule,” enunciated in
Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90 (Mann),
which the Supreme Court expressly disapproved in Baral. (Baral, supra,1 Cal.5th at p. 396 fn. 11.) We granted rehearing to consider this issue, and
we now reject the Midland parties’ argument that we must address each of
what they characterize as Young’s “derivative claims.”
First, the allegations in subparagraphs (a) through (e) of paragraph 50
are, for the most part, purely legal in nature. These allegations supply
citations to the specific sections of the Rosenthal Act and the FDCPA that
Young claims were violated. A motion to strike under Code of Civil
Procedure section 425.16 does not lie as a tool to strip from an offending
pleading legal theories pleaded in the form of bare citations to statutes or
other legal authority. To the extent Young sought to “dress up” the core
allegations supporting her section 1788.17 theory with various statutory
citations that have nothing to do with the factual basis of that claim, the
Midland parties’ remedy is to seek to strike these conclusory legal allegations
as extraneous matter, or even to file a Code of Civil Procedure section 128.7
sanctions motion, if they can show there was no good faith basis for pleading
them and their assertion served only to cause expense and delay.
In Baral, our Supreme Court addressed what it described as “ ‘the
mixed cause of action’ problem.” (Baral, supra, 1 Cal.5th at p. 394.) Framed
by the court, that problem is this: “What showing is required of a plaintiff
with respect to a pleaded cause of action that includes allegations of both
protected and unprotected activity?” (Id. at p. 385.) Prior to Baral, some
41
courts (e.g., Mann) held that, so long as the plaintiff could show minimal
merit to allegations of unprotected conduct, a “mixed cause of action” could
proceed, despite the inclusion of allegations of protected conduct in the same
cause of action. Other courts criticized Mann (e.g., Wallace v. McCubbin
(2011) 196 Cal.App.4th 1169, disapproved on other grounds in Baral, at
pp. 391 & 396, fn. 11) and some disagreed with it outright and held to the
contrary (e.g., Cho v. Chang (2013) 219 Cal.App.4th 521 (Cho).) According to
the Cho court, allegation-by-allegation parsing was required. (Id. at p. 527.)
Overruling Mann on this point, the Baral court sided with the Cho line of
authority.
Baral requires courts to “analyze each claim for relief—each act or set
of acts supplying a basis for relief, of which there may be several in a single
pleaded cause of action—to determine whether the acts are protected and, if
so, whether the claim they give rise to has the requisite degree of merit to
survive the motion.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th
995, 1010 (Bonni).) As applied in Bonni and other cases (see Wilson v. Cable
News Network, Inc. (2019) 7 Cal.5th 871, 884, 898; Park v. Board of Trustees
of California State University (2017) 2 Cal.5th 1057, 1062–1063), this
analysis focuses factually on specific “acts,” “activities,” or “conduct” that
make up the elements of a pleaded claim. That is a different problem than
the one we have here. We do not doubt that scattershot citation to inapposite
legal authority, unsupported by facts, can be a serious problem in civil
litigation, but the anti-SLAPP statute is concerned with a different kind of
abuse.
Second, to the extent there is factual content to the allegations in
paragraph 50, subdivisions (a) through (e)—some of which are the same
factual allegations supporting Young’s section 1788.17 cause of action (e.g.
42
the claimed violation of section 1788.15, subdivision (a))—the anti-SLAPP
motion filed by the Midland parties failed to dissect each of the eight legal
theories presented, element-by-element, so that Young was on notice of
exactly what elements of which legal theories the Midland parties claimed
were based on protected conduct and lacked minimal merit. Summarized
generally, the facts alleged in paragraph 50 break down into three categories.
First, Young alleged—as she did in the introduction and background sections
of the complaint—that the Midland parties pursued a lawsuit against her
based on a false proof of service of summons (para. 50(a), (c), (d)), and did so
with knowledge that she had not been properly served (para. 50(d)).
Second—going beyond her background allegations—Young alleged that,
while attempting to collect a debt from her, the Midland parties
misrepresented “the character, amount, or legal status of the debt” (para.
50(b)). And third—here, too, going beyond her background allegations—
Young alleged that, without a legal basis for doing so, the Midland parties
sought to “collect interest, fees, or other charges” from her (para. 50(e)).
We can surmise how these factual allegations probably align, element-
by-element, with the legal theories Young is pursuing, but we have no
obligation to do so on appeal. Baral was a step-two anti-SLAPP case like this
one, but there the parties conceded, and the Supreme Court based its
analysis on, the predicate assumption that it was dealing with “mixed causes
of action.” The court recognized that two prior Supreme Court cases—Oasis
and Taus, supra, 40 Cal.4th 683, neither of which involved mixed causes of
action—shed light on whether the Mann analysis was correct, even though
the issue was not directly presented in those cases. It discussed these cases
in some depth. (Baral, supra, 1 Cal.5th at pp. 388–392.) The court pointed
out that one of these cases (Taus) undertakes “an exhaustive analysis of
43
alternate theories of liability, and their application to particular instances of
alleged tortious behavior” (Baral, supra, 1 Cal.5th at p. 390), while the other
(Oasis) simply concludes that once a plaintiff has demonstrated a cause of
action has minimal merit under one asserted legal theory, it is unnecessary
to reach the rest of the anti-SLAPP movant’s attack on different legal
grounds.
Baral reconciles Taus and Oasis based on “the way the parties framed
the issues” on those respective records. (Baral, supra, 1 Cal.5th at p. 391.)
In Taus, the anti-SLAPP movant sought to strike particular kinds of alleged
conduct, while in Oasis the anti-SLAPP movant moved to strike the entire
complaint. Reading Oasis as having been driven by the procedural posture in
that case,13 the Baral court does not question the Oasis holding or cast doubt
upon it. The court simply states that Court of Appeal decisions reading Oasis
broadly to endorse Mann—because Oasis cites Mann in its background
discussion of applicable law—were incorrect (e.g., Wallace v. McCubbin,
supra, 196 Cal.App.4th 1169). (Baral, at p. 396, fn. 11.) That left Oasis still
standing. It remains good law, while the Mann line of Court of Appeal
authority does not. As we see it, the issue presented by the Midland parties
13 The Oasis court stated as a preliminary matter that, “[o]rdinarily we
would proceed to consider the two prongs in order,” but that “[i]n light of this
court’s ‘inherent, primary authority over the practice of law’ [citation] . . . we
will proceed in these particular circumstances directly to the second prong,
inasmuch as we have readily found that Oasis has demonstrated a
probability of prevailing on its claims.” (Oasis, supra, 51 Cal.4th at p. 820.)
It then stated that “[t]he complaint identifies a number of acts of alleged
misconduct and theories of recovery, but for purposes of reviewing the ruling
on an anti-SLAPP motion, it is sufficient to focus on just one.” (Id. at p. 821.)
Although the court cited Mann in its recitation of applicable background
principles, its choice to proceed in this manner appears to have been based on
its felt need to address an issue that was peculiarly within its constitutional
purview (Obrien v. Jones (2000) 23 Cal.4th 40), rather than the Mann rule.
44
on rehearing requires us to decide whether our case is more like Taus or
Oasis, just as the Supreme Court did on the record presented in Baral. We
conclude this case is more like Oasis. On this procedural record, the Midland
parties failed to bear their initial burden of framing an element-by-element
anti-SLAPP attack on Young’s “derivative claims” and preserving that attack
on appeal.
In the trial court, MCM’s anti-SLAPP motion sought to strike the
entire complaint. What Midland Funding described as its “more detailed”
“companion” motion took the same approach, but in its supporting brief
Midland Funding also cited Baral and argued in the alternative for the
striking of certain “discrete claims” within various of Young’s causes of
action, without directly making a request for that form of relief in its notice of
motion or in the motion itself.14 Midland Funding made no effort to explain,
based on an element-by-element review for each of the challenged statutory
legal theories, why these “discrete claims” are protected. MCM’s motion
joined Midland Funding’s indirect Baral-style alternative request, but with
no additional argument. Without citing Baral, the responding briefing on
appeal filed jointly by the Midland parties continues to focus primarily on
why the entire complaint was subject to a motion to strike. The Midland
parties at one point restate the alternative argument made by Midland
Funding below that Young’s “derivative claims” should be stricken. But here
again, they make no attempt to align discrete factual allegations made by
14MCM, in its supporting brief, incorporated by reference Midland
Funding’s oblique reference to a right to relief under Baral, joining what it
described as Midland Funding’s arguments that “each” of Young’s claims
were “defective.” There was no indication in MCM’s notice of motion that it
sought anything other than an order striking Young’s complaint.
45
Young, element-by-element, with the listed “derivative” Rosenthal Act
theories of liability.
As the Supreme Court has recently held in Bonni, supra, 11 Cal.5th
995, if a moving party has not met its “first-step burden” of “identif[ying] how
the speech or conduct underlying [challenged] . . . claims is protected activity”
(id. at p. 1011), “the nonmovant should not be put to the burden of parsing
the cause of action in the moving party’s stead. . . . [T]his problem already
has a solution under well-established anti-SLAPP law—namely, attention to
the allocation of the applicable burden of proof. If a cause of action contains
multiple claims and a moving party fails to identify how the speech or
conduct underlying some of those claims is protected activity, it will not carry
its first-step burden as to those claims. . . . The nonmovant is not faced with
the burden of having to make the moving party’s case for it.” (Ibid.) We add
here that, on appeal, the reviewing court should not be put to that burden
either. A concession that protected conduct is involved in the context of a
motion to strike the entire complaint tells us nothing about whether there is
a dispute on that issue when it comes to individual allegations.
For a court to analyze a Baral-style motion to strike properly, the
moving party must address the issue specifically—in the trial court, and on
appeal. Thus, whether we describe what we have here as a failure to meet
the initial first-step burden or a forfeiture on appeal, the problem for the
Midland parties in asking that we order Young’s “derivative claims” to be
stricken under Baral is that, procedurally, the request has not been properly
framed for us at this stage of the proceedings. The argument the Midland
parties make is highly general, set forth in a few brief sentences in their
responding brief, and directed in the alternative to all “derivative claims” as
an aggregate. Upon consideration of the rehearing petition and supplemental
46
briefing following our rehearing grant, we understand and can see that there
may be Baral-style, allegation-by-allegation arguments to be made on this
record, but we will adhere to our original determination on the “derivative
claims” and now hold that we need not address this line of argument simply
because the Midland parties gestured in that direction in a cursory request
made in the alternative in their responding brief.15
2. Young’s Rosenthal Act Cause of Action Was Not Time-Barred
Finally, the Midland parties argue that Young’s Rosenthal Act cause of
action was time-barred under the Rosenthal Act’s one-year statute of
limitation.
15 There is no question that, procedurally, Baral was a watershed
decision all litigants must be familiar with when making and opposing
anti-SLAPP motions. We expect that our holding rejecting the Midland
parties’ effort to pursue a Baral-style challenge as an afterthought on appeal
will underscore the importance of framing such challenges properly, and if an
appeal is pursued, preserving them for review. So that courts may scrutinize
whether “[a] cause of action against a person arising from any act of that
person in furtherance of the person’s right of petition or free speech . . . shall
be subject to a special motion to strike” (Code Civ. Proc., § 425.16,
subd. (b)(1)) at the level of granularity Baral contemplates, we take this
opportunity to suggest that any litigant seeking Baral-style, allegation-by-
allegation relief should (1) make clear in its notice of motion that it seeks an
order striking discrete allegations within a cause of action or within causes of
action, and (2) set forth plainly and concisely in its moving papers exactly
what factual allegations it wishes to have stricken, in a table or chart
showing exactly how each such allegation aligns with elements of the cause of
action or causes of action the motion attacks. (Cf. Code Civ. Proc., § 437c,
subd. (b)(2)–(3) [requirement of separate statements of undisputed and
disputed facts in summary judgment procedure].) That will not only allow a
determination to be made about whether the movant has borne its initial
burden of proof, but will place the non-moving party on notice of what aspects
of its pleading are being attacked, thus allowing that party, if possible, to
explain why the facts identified are incidental background matter (Bonni,
supra, 11 Cal.5th at p. 1012) or are otherwise unprotected.
47
The Rosenthal Act provides that, in order to recover actual and
statutory damages or attorney fees and costs, “[a]ny action under this section
may be brought in any appropriate court of competent jurisdiction in an
individual capacity only, within one year from the date of the occurrence of
the violation.” (§ 1788.30, subd. (f ); see Komarova, supra, 175 Cal.App.4th at
p. 343 [“Actions under the Rosenthal Act ‘may be brought . . . within one year
from the date of the occurrence of the violation.’ (§ 1788.30, subd. (f ).)”].)
As we have discussed, in her opposition to the anti-SLAPP motions,
Young argued that the Midland parties falsely represented to the superior
court in 2009 that substituted service had been effected on Young, which
false representation violated section 1788.17, and, further, that “[e]ach
subsequent representation by [the Midland parties] in an attempt to collect
the Judgment necessarily incorporates this false representation and becomes
another false representation in an attempt to collect a debt.” Young further
argued that her Rosenthal Act cause of action was not time-barred by the
one-year statute of limitations contained in section 1788.30, subdivision (f )
under the “continuing violation theory.” Relying on a continuing violation
theory, Young cited the holding on this point in Komarova, which we
described above. (Komarova, supra, 175 Cal.App.4th at pp. 343–344.) And
she renews the argument here on appeal.
We agree that Komarova applies. The record contains considerable
evidence of a continuing course of conduct by the Midland parties to parlay
their allegedly false representation about service to obtain and then collect on
the 2010 default judgment until within a year of Young’s filing of her lawsuit
in December 2019. The record indicates that after they obtained the default
judgment, the Midland parties continued to act to collect on the judgment on
a number of occasions. Specifically, according to a Midland Funding attorney
48
who submitted a declaration in support of the anti-SLAPP motions, she
began working with the law firm serving as Midland Funding’s outside
counsel on the Young case in 2013 and “assumed attorney management” of
Young’s account at that time. In 2016, she moved to another firm, which
“was tasked with handling post-judgment enforcement efforts” on Young’s
account. Between July 2013 and July 2019, “[she], or her firms’ support staff,
. . . served [Young] with post-judgment notices at least a half dozen times at
her [Burlingame] address . . . . These notices included settlement letters,
memorandums of costs, and a substitution of attorney.” Then, in July 2019,
her firm obtained the wage garnishment order and caused it to be served on
Young’s employer at the time.
The Midland parties, in challenging Young’s contention that their
refusal to withdraw their wage garnishment order after Young’s attorney told
them she had never been served was itself an effort to collect on the debt (an
issue which we need not resolve in light of our conclusion that the Midland
parties’ “knowledge” that service was not effected is of no consequence to
Young’s Rosenthal Act claim under section 1788.17), argue that “garnishment
proceedings are against an employer and not ‘against a consumer,’ ” citing
Muhammad v. Reese Law Grp., APC (S.D.Cal., Oct. 12, 2017, No. 16cv2513-
MMA (BGS)) 2017 U.S.Dist. LEXIS 169082 at page *21. “Therefore,” the
Midland parties continue, “at most, the garnishment constituted a collection
action against Young’s employer and not Young.”
The Midland parties’ contention that their effort to garnish Young’s
wages was as a matter of law not part of any collection actions against her is
directly contradicted by the text and legislative history of the Rosenthal Act.
Specifically, section 1788.10, a part of the Act, provides, “No debt collector
shall collect or attempt to collect a consumer debt by . . . [¶] . . . [¶] (e) [t]he
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threat to any person that nonpayment of the consumer debt may result in . . .
the garnishment or attachment of wages of the debtor, unless such action is
in fact contemplated by the debt collector and permitted by the law.” (Italics
added.)
Further, the legislative history of section 1788.17, of which we take
judicial notice (see Voris v. Lampert (2019) 7 Cal.5th 1141, 1147, fn. 5 [court
can take judicial notice of published legislative history]), includes repeated
references to the view of supporters that the provision was needed to address
certain “growing problem[s],” including “ ‘misrepresentations, such as threats
. . . to garnish wages . . . when no such intent or rights exists.’ ” (Sen. Com.
on Judiciary, Analysis of Assem. Bill No. 969 (1999–2000 Reg. Sess.), as
amended May 18, 1999, p. 4; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d
reading analysis of Assem. Bill No. 969 (1999–2000 Reg. Sess.), as amended
July 15, 1999, pp. 6–7.)
The case relied on by the Midland parties, Muhammad v. Reese Law
Grp., supra, 2017 U.S.Dist. LEXIS 169082, involved FDCPA claims, not
Rosenthal Act claims. Specifically, it involved section 1692i of title 15 of the
United States Code, a part of the FDCPA. Section 1692i requires a debt
collector who brings a legal action on a debt “against any consumer” to bring
it in a particular “judicial district,” and the debtor argued that this provision
applied to a wage garnishment order issued where the debtor neither resided
nor worked. (Muhammad, at pp. *14–*21.) The federal district court in
Muhammad, without considering the Rosenthal Act but instead looking to
our Code of Civil Procedure, held that title 15 United States Code section
1692i did not apply because wage garnishment proceedings were not against
a “consumer” under California law. (Muhammad, at pp. *19–*21.) This, of
course, does not address whether efforts to garnish a consumer debtor’s
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wages are regulated by the Rosenthal Act. In any event, an unpublished
federal district court case is not persuasive in the face of binding California
authority. (Balsam v. Trancos, Inc. (2012) 203 Cal.App.4th 1083, 1100.) We
read California law differently than did the Muhammad court and therefore
find that case unpersuasive.
In short, we conclude that Young’s Rosenthal Act cause of action was
not time-barred because there is evidence that the Midland parties engaged
in a continuing course of conduct until within one year of Young filing suit,
including their efforts to garnish Young’s wages. The court’s judgment on
this cause of action is therefore reversed. Further, we vacate that part of the
trial court’s judgment awarding the Midland parties’ attorney fees and
remand this matter to the trial court to reconsider, consistent with our
opinion, whether or not to award attorney fees.
C. Young’s Appeal from the Trial Court’s Order Staying the
Midland Parties’ Attorney Fee Motion
Young argues that the trial court erred in awarding the Midland
parties attorney fees in the absence of a showing that she did not act in good
faith in prosecuting her lawsuit under the Rosenthal Act; that the trial court
erred by awarding attorney fees to the Midland parties in any event; and that
the trial court at most should have awarded $4,023.50 in attorney fees to the
Midland parties. We need not address any of these issues in light of our
vacating of that part of the trial court’s judgment regarding its award of
attorney fees to the Midland parties.
III. DISPOSITION
To the extent the court granted the anti-SLAPP motions with respect to
Young’s equitable claims, we reverse and remand with directions to dismiss
those claims as moot. The portion of the judgment dismissing Young’s
Rosenthal Act cause of action is reversed. The portion of the judgment
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awarding the Midland parties attorney fees is vacated. The case is remanded
to the trial court for further proceedings consistent with this opinion. Young
is awarded costs of appeal.
STREETER, Acting P. J.
WE CONCUR:
POLLAK, J.*
GOLDMAN, J.
* Retired Presiding Justice of the Court of Appeal, First Appellate
District, Division Four, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
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Trial Court: San Mateo County Superior Court
Trial Judge: Hon. Nancy L. Fineman
Counsel: Consumer Law Center, Fred W. Schwinn, Raeon R. Roulston,
Matthew C. Salmonsen for Plaintiff and Appellant.
Solomon Ward Seidenwurm & Smith, Thomas F. Landers,
Mei-Ying Imanaka, Owen M. Praskievicz for Defendants
and Respondents.
A161843, A162784 Young v. Midland Funding, LLC, et al.