Court of Appeal Rejects Litigation Privilege Under Rosenthal
In Komarova v. National Credit Acceptance, Inc., the First District California Court of Appeal considered several issues of first impression involving the California Robbins-Rosenthal Fair Debt Collection Practices Act, Civil Code § 1788 et seq.
in Komarova, defendant sought to collect a debt from plaintiff that she did not owe; defendant had mistaken plaintiff for a credit cardholder with a different, but similarly spelled name. Defendant began collection calls to plaintiff's workplace in February 2005. In March 2005, defendant initiated arbitration proceedings against plaintiff. Defendant obtained a default award against plaintiff in June 2005, which defendant later sought to confirm in a judgment. Defendant's collection calls to plaintiff continued through January 2006.
Plaintiff filed a complaint against defendant in October 2006. Only plaintiff's causes of action for violations of the Rosenthal FDCPA and for intentional infliction of emotional distress survived summary judgment. Plaintiff filed a second amended complaint alleging violations of six provisions of the Rosenthal Act: Civil Code § 1788.11(b), (d), and (e); Civil Code § 1788.12(a); and Civil Code § 1788.15(a), (b). A jury returned a verdict for plaintff on three sections of the Rosenthal Act and intentional inflication of emotional distress, and awarded plaintiff actual damages, noneconomic damages, punitive damages, and attorneys' fees. Defendant appealed.
On appeal, the Court of Appeal held: (1) conduct violating the Rosenthal Act is not protected by the litigation privilege, Civil Code § 47(b)(2); (2) the continuing violation doctrine permits recovery for violations of the act (here, a pattern of harassing collection calls) beyond the statute of limitations period; and (3) a multipler may be used in calculating attorneys' fees under the Rosenthal Act. Signficantly, the Court held that the litigation privilege barred plaintiff's claim for intentional infliction of emotional distress for alleged acts committed after the commencement of litigation.
http://www.consumerfinancelitigation.com/admin/trackback/146277
