2017-00221086-CL-PO

Marquessa Henderson vs. Auto Financial Services

Nature of Proceeding: Motion to Strike Punitive Damages

Filed By: Ullrich, Gabriel

Defendant WAP Recovery, Inc.’s motion to strike Plaintiff Marquessa Henderson’s First Amended Complaint (“FAC”) is ruled upon as follows.

Plaintiff seeks punitive damages with respect to her conversion and negligence “counts.”

Defendant moves to strike Plaintiff’s claim for punitive damages on the ground that Plaintiff fails to sufficiently allege “malice, oppression, or fraud.”

The Court notes that Defendant has not demurred to the conversion or negligence causes of action.

Plaintiff insists that Defendant acted with malice because she alleges that she had rightful possession of the vehicle and that Defendant hooked up Plaintiff’s vehicle with full knowledge that she was inside.

At this stage of the pleadings, and taking the allegations as true that: (1) she had rightful possession of the vehicle, and (2) that Defendant hooked her vehicle to the tow truck while she was inside, the Court concludes that these allegations are sufficient.

While Defendant alleges on reply that the FAC only states “Defendant Doe 1” had knowledge that Plaintiff was in the vehicle, not moving party, this argument was not raised in its original moving papers. Defendant also argues that Plaintiff has not alleged “advanced knowledge or unfitness of the employee” under Code of Civil Procedure section 3294(b). However, Defendant did not raise this argument in its moving papers. The Court will not consider arguments raised for the first time on reply. (See, e.g., San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308 (trial court did not err in declining to consider new evidence filed with reply); Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 (“The general rule of motion practice, which applies here, is that new evidence is not permitted with the reply papers.”).)

The motion is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

Item 22 2017-00221086-CL-PO

Marquessa Henderson vs. Auto Financial Services

Nature of Proceeding: Hearing on Demurrer to First Amended Complailnt

Filed By: Ullrich, Gabriel

Defendant WAP Recovery, Inc.’s demurrer to Plaintiff Marquessa Henderson’s First Amended Complaint (“FAC”) is ruled upon as follows.

Overview

This action arises from the repossession of Plaintiff’s vehicle. To purchase the vehicle, Plaintiff obtained financing through Auto Now Financial Services. Plaintiff alleges that on 6/19/2017, Defendant was hired by Auto Now Financial Services and attempted to repossess her vehicle. While Plaintiff was seated in her vehicle, Defendant hooked up to her vehicle. Plaintiff alleges that a repossession is considered “complete” at the time the repossession truck becomes hooked up to the vehicle. As such, Defendant committed a breach of the peace while repossessing Plaintiff’s vehicle, as Plaintiff was inside the vehicle at the time the repossession was completed.

Defendant demurs to the first and second “count” in the FAC: (1) Violation of Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”), and (2) Violation of Fair Debt Collection Practices Act (“FDCPA”) (15 U.S.C. §1692 et seq.)

Analysis

Both parties agree that the Rosenthal Act incorporates the standards set forth in the FDCPA. Thus, the argument is the same for each.

Defendant demurs on the ground that Plaintiff fails to plead sufficient facts because she has not alleged that she had a right to “present possession” of the repossessed vehicle. The Court notes that in Plaintiff’s third “count” for conversion, Plaintiff alleges that she had “rightful possession” of the vehicle. (FAC, ¶ 25.) This allegation is not incorporated into the preceding counts for violation of debt collection practices.

Plaintiff alleges that Defendant violated the Section 1692f(6) of the FDCPA by committing a breach of the peace while repossession Plaintiff’s vehicle.

Section 1692f(6) provides, in part:

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if-

(A) there is no present right to possession of the property claimed as

collateral through an enforceable security interest;

(B) there is no present intention to take possession of the property; or

(C) the property is exempt by law from such dispossession or disablement.

In opposition, Plaintiff contends that Section 1692f(6)(A) applies to the Defendant’s right of possession of the vehicle and not Plaintiff’s. The Court agrees with Plaintiff. However, the FAC remains deficient because Plaintiff does not allege that Defendant did not have a present right to possession of the vehicle.

Plaintiff further counters that she is asserting a violation of a “breach of peace” in violation of Section 1962f(6). To support her position that such a violation exists, Plaintiff cites to unpublished federal district court decisions from Illinois and Minnesota, and an Alabama Supreme Court decision, none of which are binding on this Court.

The Court concludes that Plaintiff fails to sufficiently allege a violation of the Rosenthal Act or the FDCPA. Thus, the demurrer is SUSTAINED with leave to amend.

The Court grants leave to amend as this is Defendant’s first challenge to the complaint.

Where leave to amend is granted, Plaintiff may file and serve a second amended complaint (“SAC”) by no later than October 26, 2018, Response to be filed and served within 30 days thereafter, 35 days if the SAC is served by mail. (Although not required by any statute or rule of court, Plaintiff is requested to attach a copy of the instant minute order to the SAC to facilitate the filing of the pleading.)

The parties are directed to review CCP 430.41 regarding meet and confer requirements prior to filing a demurrer. Specifically, Code of Civil Procedure §430.41 (a), explicitly requires the demurring party to meet-and-confer “in person or by telephone” with the party filing the pleading that is the subject of the demurrer. Plaintiff’s counsel is reminded that the meet-and-confer requirements of Code of Civil Procedure §430.41 are not optional and s/he is required to participate in the meet-and-confer efforts “in person or by telephone” even if s/he disagrees with the challenge to the pleading.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.