Case Name: Silva v. Target National Bank, et al.
Case No.: 1-14-CV-258504

Defendants Tara Muren (“Muren”), Michael Mixer (“Mixer”), John Clinnin (“Clinnin”) and Creditor Iustus Et Remedium, LLP dba Cir, Law Offices, LLP’s (“Cir”) (collectively, “Defendants”) demur to the complaint (“Complaint”) filed by plaintiff Rodolfo Silva (“Plaintiff”) and move to strike various claims asserted therein pursuant to Code of Civil Procedure section 425.16.

Defendants’ request for judicial notice in support of their demurrer and special motion to strike is GRANTED. (See Evid. Code, § 452, subd. (d).)

Plaintiff’s request for judicial notice in support of his opposition to Defendants’ special motion to strike is GRANTED. (See Evid. Code, § 452, subd. (d).)

Defendants’ special motion to strike is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to Muren, Mixer and Clinnin in its entirety and GRANTED as to the third cause of action as to Cir. The motion is DENIED as to the fourth cause of action as to Cir. Defendants’ request for attorney’s fees is denied without prejudice subject to a notice motion and attorney declaration to support an award of fees and costs.

Defendants have demonstrated that that third and fourth causes of action for negligence per se and negligence, respectively, arise from protected activity, namely, the filing of the underlying collection action against Plaintiff. (See A.F. Brown Elec. Contractor, Inc. v. Rhino Elec. Supply, Inc. (2006) 137 Cal.App.4th 1118, 1125 [“[i]t is beyond dispute the filing of a complaint is an exercise of the constitutional right of petition and falls under section 425.16”].) Even assuming, arguendo, that the pre-litigation conduct highlighted by Plaintiff in his opposition is not protected, the protected conduct is not merely incidental or collateral to these claims. Consequently, the anti-SLAPP statute applies to the third and fourth causes of action. (See Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672.)

Defendants have further demonstrated that Plaintiff cannot prevail on these claims with respect to the individual attorney defendants as they are exempt from the provisions of the Rosenthal Fair Debt Collection Practices Act (the “RFDCPA”). (See Civ. Code, § 1788.2, subd. (c).) The negligence per se doctrine does not override this exemption (see Dos v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 737-738), nor does the State Bar Act, particularly Business and Professions Code section 6077.5, which imposes the obligations on debt collectors set forth in the RFDCPA on attorneys employed to assist in the collection of consumer debt. Violators of Section 6077.5 are subject to discipline by the State Bar rather than by private action. (See Bus. & Prof. Code, § 6077.5, subd. (i); see also Vo v. Nelson & Kennard (E.D. Cal. 2013) 931 F.Supp.2d 1080, 1094.)

Finally, with regard to the third cause of action as to Cir, the RFDCPA cannot provide a basis for a negligence per se claim. (See Chaconas v. JP Morgan Chase Bank (S.D. Cal. 2010) 713 F.Supp.2d 1180 [holding that the court could not apply the tort in se doctrine based on alleged violations of the RFDCPA].)

On the fourth cause of action with regard to Cir, the Court finds that Plaintiff has demonstrated a probability of prevailing on the merits of this claim. (See Declaration of Rodolfo Silva in Support of Opposition to Special Motion to Strike, ¶ 2.) Defendants fail to establish that this claim is defeated in its entirety by the litigation privilege as they have not demonstrated that the pre-litigation conduct upon which it is partly predicated is privileged under Civil Code section 47.

Defendants’ demurrer to the Complaint is OVERRULED. If there are several causes of action in a complaint, a demurrer to the entire complaint will be overruled if any cause of action therein is properly stated. (See Warren v. Atchison, Topeka & Santa Fe Ry. Co. (1971) 19 Cal.App.3d 24, 36.) Here, Defendants have not demonstrated that the first cause of action for malicious prosecution is deficiently pleaded against them; consequently, the demurrer fails.