30-2013-00657431
Defendant Veros Credit’s motion for an award of attorneys’ fees in the amount of $10,591.81 against plaintiff Irma Lopez under Civ. Code § 1788.30(c) is denied.

Civil Code § 1788.30(c) provides: “In the case of any action to enforce any liability under this title, the prevailing party shall be entitled to costs of the action. Reasonable attorney’s fees, which shall be based on time necessarily expended to enforce the liability, shall be awarded to a prevailing debtor; reasonable attorney’s fees may be awarded to a prevailing creditor upon a finding by the court that the debtor’s prosecution or defense of the action was not in good faith.”

An award of attorney fees under Civil Code section 1788.30, subdivision (c), is discretionary. Gouskos v. Aptos Village Garage, Inc. (2001) 94 Cal. App. 4th 754, 764. Independent research has not located California cases discussing the standard to be applied where a prevailing defendant seeks attorney fees under this statute. But a nearly identical attorney fee provision is at Civil Code section 1780, subdivision (e), a portion of the Consumer Legal Remedies Act (Civ. Code. § 1750 et seq.), which provides in pertinent part: “Reasonable attorney’s fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiff’s prosecution of the action was not in good faith.” This provision has been interpreted to require a finding of subjective bad faith. Corbett v. Hayward Dodge, Inc. (2004) 119 Cal. App. 4th 915, 920–924; Shisler v. Sanfer Sports Cars, Inc. (2008) 167 Cal. App. 4th 1, 9. “When a tactic or action utterly lacks merit, a court is entitled to infer the party knew it lacked merit yet pursued the action for some ulterior motive.” Corbett, supra, 119 Cal.App.4th at p. 928. “Good faith, or its absence, involves a factual inquiry into the plaintiff’s subjective state of mind [citations]: Did he or she believe the action was valid? What was his or her intent or purpose in pursuing it? A subjective state of mind will rarely be susceptible of direct proof; usually the trial court will be required to infer it from circumstantial evidence. Because the good faith issue is factual, the question on appeal will be whether the evidence of record was sufficient to sustain the trial court’s finding.” Knight v. City of Capitola (1992) 4 Cal. App. 4th 918, 932, overruled on another point in Reid v. Google, Inc. (2010) 50 Cal. 4th 512, 532, fn. 7.)

Here, Plaintiffs alleged violations of the Rosenthal Fair Debt Collection Act by virtue of multiple calls to Cesar Lopez, his mother Irma Lopez and Cesar’s employer regarding Cesar’s debt. Even though this was all limited to Cesar’s debt, Irma asserted a cause of action on her own behalf. Only a person who is obligated to pay the debt in question has standing to assert a violation of the Rosenthal Fair Debt Collection Act. Civ. Code §§ 1788.2(h), 1788.30(a). Irma Lopez dismissed her claims against the Defendant.

This is evidence of the weakness of Irma Lopez’s claim but is not, alone, sufficient evidence to establish her subjective bad faith. Additionally, Irma Lopez never alleged in the Complaint that she was a debtor, therefore it is questionable whether 1788 even applies.

Moving party to give notice.