Does AB 2244 Benefit Process Servers?

The passage of AB 2244 in 2016 has been hailed as a ringing success for CALSPro and the process serving industry.  I take issue with that.

CALSPro’s support for AB 2244 has concerned me all year.  The Coalition for Improving Court Access was formed as a separate entity and hired CALSPro’s lobbyist to facilitate access to the court and shepherd this bill through the legislative process, primarily because of inconsistent applications of the efiling rules. It was intended to level the playing field for efiling companies and to facilitate more universally accepted platforms.

The CALSPro Board unanimously agreed to participate as a member of the coalition.  They were joined by 17 other individual members and companies.

What bothered me about this CALSPro’s participation, on behalf of ALL its members, is whether it really benefited the membership as a whole. I feel that this legislation really only benefited a few of our members and non-members who operate or work for efiling companies. It does little for process servers.

This is intended to explain why.

First of all, it must be acknowledged that participation by the Coalition and CALSPro substantially assisted the legislature and Judicial Council in its understanding of how the whole process worked.  Based upon the presentations made at the 2016 CALSPro Conference, and private conversations I had with members in the know, CALSPro and the Coalition clarified in real life examples how efiling worked and explained how excess charges that were being assessed to litigants.

The decision makers in the legislative committees and Judicial Council expressed sincere appreciation for that effort.

In earlier discussions, a white paper was distributed and the progenitors of the Coalition gave valuable input to the standards for efiling and eservice.  For instance, the paper made no distinction between primary and secondary service when eservice was addressed. Not doing so could have easily introduced eservice of primary service (service of a summons) into efiling standards.

Nevertheless, the Coalition and CALSPro’s participation was instrumental in the passage of AB 2244, but the result benefited the efiling companies – not the rest of the members in CALSPro or process servers.

What Does AB 2244 do?

Convenience fees for court costs

CCP § 1010.6 is amended to allow the Court, Electronic Filing Manager (EFM), or EFSP to collect a “convenience fee” for processing a payment of a filing or other fee when required to complete the filing. The convenience fee is limited to the actual costs for processing the transaction. That means fees for using a credit card, or any other form of payment that is normally charged to the merchant in a transaction can be legally passed on to the end user. Those fees may range between 2% and 3.5%. This is expected to bring it closer to 2%.

The reason for this restriction was implemented to address the practice of a prominent EFM, a third party vendor that creates the portal through which an EFSP electronically files documents into the court’s case management system, that was routinely charging a 3.5% fee for these court fees. The EFM dictated that the court fee be paid specifically by credit card.

This amendment benefits the EFSPs by allowing them to pass on convenience fees to the end user. It also locks the fees to the actual cost, not an apparent arbitrary fee charged by the Court or EFM. Fees charged are subject to audit.

Fees for efiling

The amendment requires that the EFSP’s fees for e-filing to be “reasonable.” It also requires the EFSP to charge no fee for litigants who have a fee waiver in place, or in instances when the court deems a waiver of fees is appropriate.

Recoverable costs

CCP § 1033.5 is being amended to make the costs for electronic filing recoverable for the prevailing party.

The legislation authorizes that the fee paid for efiling and eservice to an Electronic Filing Service Provider (EFSP) may be a recoverable cost, if the particular court mandates efiling. This legislation results in a “sea change” for the awarding of recoverable costs to the prevailing party for efiling charges.

Heretofore, a filing with the court was accomplished by

  • signing them
  • printing the documents and making copies to be conformed by the court after the original was filed, and perhaps an internal file copy
  • serving them.

Then, getting the documents to the court

  • walking them into the court by the lawyer or staff
  • mail
  • Federal Express or courier
  • messenger
  • internal or out-sourced daily court runner, or
  • on-demand process server

All added to the cost of filing.  None of these fees were ever recoverable costs, and “postage, telephone, and photocopying charges, except for exhibits” were expressly not allowed by statute. These costs were absorbed by the litigant. Filing over-the-counter with a daily court runner, whether in-house or through a monthly retainer agreement with a service provider, or an on-demand special filing by courier was never considered a recoverable cost.

Since all parties must efile in courts that require it, each are incurring efiling costs, this could increase more litigation if a motion to tax costs is filed challenging excessive efiling and eservice fees.

For instance, there are a variety of add-ons to a bill from an EFSP: rush fees, special handling fees, copies made, deliveries to the department, or even personal service on opposing counsel are all potentially line item charges.  One prominent efiling company offered $50 “Loyalty Program” gift certificates to law firm secretaries for frequent filings and expensive, perhaps unnecessary, services.  The more rushes, needed or not, and the more efilings pushed through the system benefited both the EFSP and the secretaries. These bills, of course, were passed onto the client. The lawyers used that benefit to funnel indirect raises to their staff.

The question, subject to a motion to tax costs, is what is a “reasonable fee” charged by the EFSP? Were the add-on fees necessary? Were they reasonable? Given that fees charged by an EFSP range from free to around $10, a benchmark “reasonable fee” will vary considerably.

Unlike the recoverable fee for service by a registered process server that has been matched with a statutory fee for service by the sheriff (currently $40), efiling fees have no analogy. The fee is established by private industry, which in turn, is set by demand and competition.

The EFSP as an agent of the Court

Gov’t Code § 6159 is amended to say that the EFSP is an agent of the court, and mandates that they must periodically report its actual costs for processing court filing fees. They are subject to audit by the Judicial Council, and permit access to its premises for interviewing employees, and inspect and copy relevant records. Records must be maintained for at least four years.

An EFSP is prohibited from collecting filing fees or court fees from a party whose fees have been waived.

The law is being amended to limit the fee to the “actual cost” for processing the transaction for court fees charged by the Court, EFM and the EFSP. It will mandate the court or the EFM to accept other forms of payment such as electronic fund transfers, Automated Clearing House (ACH), and payment methods that do not charge a transaction cost, such as an electronic check.

Unfortunately, history has demonstrated that EFSPs have not been acting like an agent of the court.  They have been acting like private companies (which of course they are), and have made huge investments and are currently scrambling for market share.  During the formative years of efilng, EFSPs refused to allow process servers to efile through their portals into the court. One major EFSP continues to restrict efiling by litigants themselves, foreclosing any ability for a process server to participate in efiling in a court that approved them as a preferred vendor.  EFSPs have deliberately arranged unannounced secret meetings with the courts, and made invitation only, exclusive presentations to the legal community to capture market share of the efiling business destined to the court.

Once the EFSP is in place in a court, they provide a court portal which displays not only their efiling and eservice, but a variety of other service – process serving – local, nationwide, and international – court reporting, investigations, mobile photocopy, records searches, etc.

This has been my initial primary objection to EFSPs and the courts’ apparent acquiescent relationship to them.

Who are Electronic Filing Service Providers (EFSPs)?

There are about 20, give or take, EFSPs in California that have the ability to directly file documents into a court through an EFM.  Not all EFSPs have arrangements with all courts to file electronically. Due to the accident of history, the California Judicial Council blew half a billion dollars on a failed effort to develop a statewide e-filing system, and the state legislature cut the funding.  As a result, each county court was forced to look to private industry to implement efiling, and make exclusive contracts with one or a few EFSP vendor.

There are several other companies, primarily process servers or process serving agencies, which have contracts with those EFSPs providers that contract with the particular court. The EFSP charges a retail end user between free and $10.  The companies that are not EFSPs market this service and file through an EFSP are charged an amount as the end user, depending on the relationship, volume, handling, etc., and mark the fee up to their clients ranging from $9 to $45.

Process serving companies facilitate the process so that their existing clients can efile through their website without using an EFSP directly. After all, the EFSP is a competitor, and if contacted directly by the client, it makes it easier to capture just the efiling assignment, but then convert it into a process service or investigative assignment.

Costs vary considerably for a process serving agency not already in the efiling business to set up an arraignment for a seamless portal that passes efilings through to an EFSP.  One EFSP will build a portal on a process server’s website for free.  One company will do it for $10,000.  Another will do so for a fee, but bundles the build with an integrated process serving program for generating service instructions, proofs of service, declarations for the server, billing and statements, and online statuses, and with the setup fee, will take a fee for each and every invoice generated during the term of the contract.

A lawyer or law firm may efile through the branded portal on their website, or the process server may file for the client through an EFSP. Does that make the process serving agency an EFSP also? There are several inferences throughout CCP § 1010.6 that refer to the EFSP as the entity that files electronically through the EFM. There is apparently no definition of an EFSP in either the law or court rule.

At the very least, process servers to file through an EFSP are an agent of the EFSP, and hence, a sub-agent of the court. To distinguish these, hereinafter in this article I will refer to them as an Electronic Filing Service Provider Agent (EFSPA).  Local courts make no distinction between an EFSP and an EFSPA.

  • Is an EFSPA bound by these changes in the law?
  • Is an EFSPA subject to audit by the Judicial Council?
  • Is an EFSPA obligated to file at no charge for parties that have obtained a fee waiver?
  • Is an EFSPA able to pass on an additional “convenience fee” if they pay an EFSP with a credit card, resulting in 2 “convenience fees”?
  • Is an EFSPA’s add-on markup fee for efiling through an EFSP a “reasonable cost”, subject to recovery?
  • If not, could these charges be subject to challenge with a motion to tax costs?

Most of the owners of the EFSPAs I spoke to at the CALSPro conference in October, 2016 who have entered into this arrangement have yet to break even.

So here are my questions.  CALSPro devoted considerable resources, time, energy, and support to this bill.  Did this effort benefit the membership and process servers? If so, how?

Forms Committee Report – March, 2017

March 20, 2017

CALSPro Board Meeting 3/25/17

There are 2 form proposals I am monitoring and commenting on which will have an impact on process servers in 2018.

  • Request for Entry of Default (revise form CIV-100; adopt form CIV-105)

 There are proposals to revise the existing Request for Entry of Default form, and to adopt another specifically for default judgments against defendants whose debt was purchased and assigned to a third party.

Requirements of the Fair Debt Buying Practices Act

The Fair Debt Buying Practices Act, which took effect January 1, 2014, imposes a number of requirements on debt buyers pursuing collection efforts, including that no default judgment may be entered against a debtor defendant unless the debt buyer plaintiff submits certain documents, authenticated through a sworn declaration, to establish specified facts (Civ. Code § 1788.60(a), (b)). If the debt buyer has not complied with the Act’s requirements, the court cannot enter a default judgment for the debt buyer (Civ. Code § 1788.60(c)).


  • Writ of Execution (revise form EJ-130)

The writ of execution form changes were initiated last year, and were not revised due to a number of comments received.

The form is going through a significant revision.  The identifier as to whether the case is a limited or unlimited case has been refined, eliminating the apparent confusion and rejection for a failure to distinguish small claims case and family law case as limited or unlimited cases.  The designation is critical for the sheriff to determine timeliness for the time to appeal (30 vs. 60 days) when a claim of exemption is filed.

The item numbers are being rearranged, a belief that making the entries fall more logically while calculating debits, accrued interest, and how credits are applied.

To accommodate notice to the Judgment debtor, a third page is being added.

The committee is also revising and cross-referencing the Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest (form MC-012) to more fully integrate the information on this form to prepare the writ form more accurately.

The committee is also developing a proposing a new form, Information Sheet for Calculating Interest and Amount Owed on a Judgment (new form MC-013-INFO) to explain how credit payments received from the debtor towards interest, costs, and judgment principal, and refers the creditor to form MC-012.


The Judicial Council Invitation to Comment Memos are linked below and explain these changes in more detail, and displays the proposed changes to the existing forms, and the proposed new forms.  You may also register comments.

Civil Practice and Procedure: Request for Entry of Default

Civil Practice and Procedure: Writ of Execution

Tony Klein

Contra Costa Superior Court Enforces Fax Filing Rules

Contra Costa Superior Court is enforcing fax filing rules that will impact attorney services.

It will affect all efilings, but the rule particularizes and singles out attorney services who  file fax filings that are not in compliance with California Rule of Court sec. 3.1110(f) when the filings are not properly tabbed.

It will require any fax filing to be 1) stamped with the name, address, and phone number of the attorney service filing documents by fax, and 2) a certification of an employee that the document filed complies with CRC sec. 3.1110.

For those fax filings that do not comply with the local rule, the clerk will submit the non-compliant filing to the presiding judge who may then levy sanctions.

What is particularly offensive about this rule is that it targets attorney services, and authorizes sanctions for violating the local and California Rule of Court.  This appears to be unprecedented. Also, it seems to demonstrate a pointed frustration with attorney services who have been submitting non-compliant documents to the court.

This is the new rule, and the portion that will affect attorney services is bolded in red:

Contra Costa Superior Court Rule 3.42. Papers to Comply with State Rules

(1) Moving, opposing and reply papers must be filed and served with the Court and parties within the time prescribed by law. The Court will not consider late filed papers unless good cause is shown at the hearing.

(2) All memoranda and other papers filed in support of, and in opposition to, motions shall comply with the requirements of the California Rules of Court.

(3) Despite rule 3.1110 of the California Rules of Court, subdivision (f), a large number of documents filed with the Court include exhibits that are not properly tabbed. The majority of these non-compliant documents are fax-filed through an attorney service. The attorney service prints out the documents and files them without tabbing the exhibits. The purpose of this rule is to discourage such rule violations, which impose a substantial burden on judges and staff.

(A) Every fax-filed document shall be stamped on the first page with the name, address, and telephone number of the attorney service that prepared the document for filing.

(B) Every fax-filed document or set of fax-filed documents shall include, as a separately filed document, a certification by an employee of the attorney service that the document or documents have been reviewed for compliance with rule 3.1110 of the California Rules of Court, subdivision (f), and that all exhibits have been properly tabbed.

(C) If a particular attorney service repeatedly files documents with untabbed or improperly tabbed exhibits, the matter will be referred to the presiding judge for appropriate action.

(D) Counsel of record should take note the Court has and will continue to impose monetary sanctions on attorneys who file documents with untabbed or improperly tabbed exhibits, regardless of whether such documents were fax-filed through an attorney service, and in some instances will disregard those documents or drop a hearing from calendar based on the rule violation.

(Rule 3.42(3) new effective 1/1/17)
(Rule 3.42 revised effective 1/1/17)


The California Rule of Court sec. 3.1110(f) referenced in the local rule is included below:

. . .

(f) Format of exhibits

Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.

 . . .


 

This will likely spread to other courts if it hasn’t already.

This highlights a rather onerous effort to perform a fax filing. Perhaps it was always there and I didn’t realize it.

  • Does the stamping of the name of the attorney service, address, and phone number constitute an alternation of the faxed document? It isn’t a material alteration of the content of the document, but comes close to an alteration nonetheless.
  • Does this local rule contradict the California Rule of Court for fax filings?
  • Does adding “a hard 8-1/2 x 11 sheet with hard paper or plastic tabs” constitute an alteration if the faxed copy does not?
  • If not, who is subject to reprimand and/or sanction?
  • Has anyone priced plastic exhibit tabs lately?

The CRC apparently does not require tabs for courtesy copies to the Dept. Once efiling takes hold, all of this would be moot.

Furthermore, each fax filing now must accompany a stand-alone certification by an employee of the attorney service will add yet more time and handling for fax filings.

  • Does that signed Certification limit the use of independent contractors for fax filings​?
  • Does that make the employee liable for sanction by the court?
  • Vicarious liability imputed​ to the employer is not presumed in the rule.
  • Are we now required to pick through several the 200+ pages of exhibits after a firm shoves the documents into an email or fax machine without delineating where the exhibits start and stop?
  • Are attorney services required to plow through the exhibits and separate out the
    Exhibits A,B, or C, that are attached to Exhibits A, B and C appended to the actual exhibits to the filed document?

Fax filings are going to get a whole lot more expensive with all of this handling.

Fair Debt Collection Practices Act

There are a growing number of actions being filed against process servers and agencies for violating the Fair Debt Collection Practices Act (FDCPA) which governs and restricts practices for collecting consumer debt.

Below are reported cases challenging the exemption for process server in the definition of a “debt collector” found in 15 U.S.C. 1692a(6)(D), the specific exception for a person serving process.  The cases allege that when a process server signs a false proof of service, they lose the exemption, and become subject to the FDCPA as a “debt collector”.  Quoting Freeman v. ABC Legal Services Inc., 827 Fed. Supp. 2d 1065, 1074, “if process servers falsely claimed they had effected personal service and executed a false proof of service document, then their actions would take them beyond their role as process servers and render them ineligible for the exception.”


Court Opinions


Sykes v. Mel Harris & Assocs., LLC, 757 F. Supp. 2d 413, 423 (S.D.N.Y. 2010)

Freeman v. ABC Legal Services, Inc., 827 F. Supp. 2d 1065, 1074 (N.D. Cal. 2011)

Holmes v. Electronic Document Processing, Inc., 966 F.Supp.2d 925 (N.D. Cal. 2013) This was a trial court order denying the defendant process server agency’s motion to dismiss the action. One issue the court addressed was whether the filing of a false proof of service to obtain a judgment constituted an act that made the process server a debt collection, and not exempt under the FDCPA.  Another issue the court ruled on was that when the agency “[k]nowingly and intentionally withhold[s] their true names and process server registration numbers from process server returns, [it is] in violation of California Bus. & Prof. Code § 22356.5(a), with the intent to deceive.” 

Holmes v. Electronic Document Processing, Inc., 966 F.Supp.2d 925 (2013)

Case No.: 12-CV-06193-LHK.

Cheryl Anatole HOLMES, Plaintiff, v. ELECTRONIC DOCUMENT PROCESSING, INC. and Tanaya V. Sulcer, Defendants.

United States District Court, N.D. California, San Jose Division.

August 15, 2013.

Attorney(s) appearing for the Case

Fred W. Schwinn, Raeon Rodrigo Roulston, Consumer Law Center, Inc., 12 South First Street, Suite 1014, San Jose, CA 95113-2418, for Plaintiff.

Steven S. Nimoy, Soltman, Levitt, Flaherty & Wattles LLP, 2535 Townsgate Road, Suite 307, Westlake Village, CA 91361, for Defendants.

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS AND MOTION TO STRIKE

LUCY H. KOH, United States District Judge

Plaintiff Cheryl Anatole Holmes (“Holmes” or “Plaintiff”) brings this action against Defendants Electronic Document Processing, Inc. (“EDP”) and Tanaya V. Sulcer (“Sulcer”) (collectively, “Defendants”) for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (“FDCPA”); the Rosenthal Fair Debt Collection Practices Act, California Civil Code §§ 1788 et seq. (“RFDCPA” or “Rosenthal Act”); and California Business and Professions Code §§ 17200 et seq. (“Unfair Competition Law” or “UCL”). Holmes contends that, in an attempt to collect a debt, Defendants filed a false proof of service in a state court action.

Before the Court is Defendants’ Motion to Dismiss Plaintiff’s Complaint, ECF No. 13 (“Mot. to Dismiss”), and Defendants’ Motion to Strike Portions of Plaintiff’s Complaint, ECF No. 14 (“Mot. to Strike”). Pursuant to Civil Local Rule 7-1(b), the Court found this matter appropriate for determination without oral argument. Having considered the submissions of the parties, the relevant law, and the record in this case, the Court hereby DENIES Defendants’ Motion to Dismiss, and DENIES Defendants’ Motion to Strike.

  1. BACKGROUND
  2. Factual Allegations

Plaintiff Holmes allegedly incurred a consumer credit debt (“the alleged debt”) at some unknown time for personal, family, or household purposes. See Compl. ¶ 44, ECF No. 1. The debt was consigned and/or otherwise assigned to Lang, Richert & Patch, a debt collection law firm. Compl. ¶ 45.

On June 14, 2012, Lang, Richert & Patch filed a lawsuit against Holmes in the Santa Clara Superior County, Unifund CCR Partners v. Cheryl Anatole Holmes, Santa Clara County Case No. 1-12-CV-226523 (the “State Court Action”), in an attempt to collect the debt. See Compl. ¶ 46. Thereafter, Lang, Richert & Patch allegedly hired Electronic Document Processing, Inc. (“EDP”) — a California corporation engaged in the business of composing and selling forms, documents, and other media to be used for debt collection — to serve Holmes by delivering to her a copy of the State Court Summons and Complaint. See Compl. ¶¶ 10, 47. Tanaya V. Sulcer (“Sulcer”) is a process server who is or was an employee and/or agent of EDP. See Compl. ¶¶ 11, 21(b).

Holmes contends that, on or about July 18, 2012, EDP composed a false Proof of Service of Summons and filed it in the Santa Clara Superior Court in order to obtain a default judgment against her. See Compl. ¶¶ 48, 49; id. at Ex. 1. This Proof of Service of Summons represents, under penalty of perjury, that Sulcer personally served Holmes with a copy of the Summons and Complaint for the Superior Court lawsuit. See Compl. ¶¶ 48-49. However, Holmes disputes that she was served personally. Rather, on or about July 10, 2012, “Plaintiff returned home from work and found the Summons and Complaint wedged under her front door.” Compl. ¶ 54. In addition, the Proof of Service of Summons describes the person served as a female Caucasian, 50-years-old, with brown hair and brown eyes, 5 feet 8 inches tall, and weighing 165 pounds. See Compl. ¶ 54. However, Holmes is 62-years-old, with blond hair and blue eyes, and weighs 125 pounds. See id.

Holmes further alleges that EDP authorized Sulcer to use EDP’s address and telephone number on process server returns in order to shield Sulcer from service of process if she were sued. See Compl. ¶ 27. Holmes contends that EDP also intentionally withheld its own name and process server registration number from the process server returns in order to misrepresent the true nature of EDP’s services and EDP’s relationship with Sulcer. See Compl. ¶ 26.

According to Holmes, EDP and Sulcer are engaged in the “practice of `sewer service’ — i.e., failing to serve a debtor and filing a fraudulent affidavit attesting to service so that when the debtor later fails to appear in court, a default judgment can be entered against her.” Compl. ¶ 1.1 The Proof of Service of Summons in this case indicates that Defendants sold the process server return to Lang, Richert & Patch for $59.00. Compl. ¶ 53. Because EDP will pay Sulcer and other process servers only for service attempts that are reported as completed, and will pay substantially less or nothing for service that is not reported as completed, Holmes alleges that “process servers like Sulcer have a strong financial incentive to falsify process server returns.” Compl. ¶ 55. According to Holmes, “EDP knowingly promotes the use of false process server returns through its flat rate or fixed fee compensation.” Compl. ¶ 55. Holmes also alleges that “[d]ebt collection law firms and debt buyers plainly benefit from the sewer services provided by unscrupulous process servers like the Defendants in this case” because they are “able to generate hundreds of judgments by default on cases where they could never prevail on the merits.” Compl. ¶ 57. “Once default judgments are fraudulently obtained, they are sued to levy consumer’s bank accounts, garnish their wages, seize their property, damage their credit reports, and/or pressure them into unaffordable payment plans.” Id.

  1. Procedural History

Holmes filed her Complaint on December 6, 2012. ECF No. 1. On February 19, 2013, Defendants filed their Motion to Dismiss and Motion to Strike the Complaint. See ECF Nos. 6, 7. The following day, the case was reassigned to the undersigned judge. ECF No. 12. On February 26, 2013, Defendants amended and re-noticed their Motion to Dismiss and Motion to Strike Plaintiff’s Complaint. See Mot. to Dismiss, ECF No. 13; Mot. to Strike, ECF No. 14. On April 12, 2013, Holmes filed her Opposition to the Motion to Dismiss, see Opp’n to Mot. to Dismiss, ECF No. 18, and her Opposition to the Motion to Strike, see Opp’n to Mot. to Strike, ECF No. 19.2 On April 26, 2013, Defendants filed their Reply in support of the Motion to Dismiss, see Reply Supp. Mot. to Dismiss, ECF No. 21, and their Reply in support of the Motion to Strike, see Reply Supp. Mot. to Strike, ECF No. 20.

  1. LEGAL STANDARDS
  2. Motion to Dismiss Under Rule 12(b)(6)

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss an action for failure to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a `probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the non-moving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.2008).

However, a court need not accept as true allegations contradicted by judicially noticeable facts, Shwarz v. United States, 234 F.3d 428, 435 (9th Cir.2000), and a “court may look beyond the plaintiff’s complaint to matters of public record” without converting the Rule 12(b)(6) motion into one for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n. 1 (9th Cir.1995). Nor is a court required to “`assume the truth of legal conclusions merely because they are cast in the form of factual allegations.'” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir.2011) (per curiam) (quoting W. Min. Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981)). Mere “conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.2004); accord Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Furthermore, “a plaintiff may plead herself out of court” if she “plead[s] facts which establish that [s]he cannot prevail on h[er]… claim.” Weisbuch v. Cnty. of L.A., 119 F.3d 778, 783 n. 1 (9th Cir.1997) (internal quotation marks and citation omitted).

  1. Motion to Strike

Federal Rule of Civil Procedure 12(f) permits a court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” See Fed.R.Civ.P. 12(f). “[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Motions to strike are generally disfavored and “should not be granted unless the matter to be stricken clearly could have no possible bearing on the subject of the litigation … If there is any doubt whether the portion to be stricken might bear on an issue in the litigation, the court should deny the motion.” Platte Anchor Bolt, Inc. v. IHI, Inc., 352 F.Supp.2d 1048, 1057 (N.D.Cal.2004) (internal citations omitted). “With a motion to strike, just as with a motion to dismiss, the court should view the pleading in the light most favorable to the nonmoving party.” Id. “Ultimately, whether to grant a motion to strike lies within the sound discretion of the district court.” Cruz v. Bank of New York Mellon, No. 12-00846, 2012 WL 2838957, at *2 (N.D.Cal. July 10, 2012) (citing Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir.2010)).

III. MOTION TO DISMISS

Defendants’ Motion to Dismiss argues that: (1) Holmes fails to state a claim under the FDCPA because Defendants are entitled to the “process server exception” pursuant to 15 U.S.C. § 1692a(6)(D); and (2) Plaintiff’s claims are barred by California’s litigation privilege, pursuant to California Civil Procedure Code § 47(b). The Court will address each argument in turn.

  1. Failure to State a Claim under the FDCPA

To state a claim alleging violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (“FDCPA”), a plaintiff must show: “(1) that [s] he is a consumer; (2) that the debt arises out of a transaction entered into for personal purposes; (3) that the defendant is a debt collector; and (4) that the defendant violated one of the provisions of the FDCPA.” Freeman v. ABC Legal Services, Inc., 827 F.Supp.2d 1065, 1071 (N.D.Cal.2011). For purposes of this motion, Defendants do not challenge the first two elements. See Mot. to Dismiss at 4. Thus, the Court will only address the third and fourth elements of Plaintiff’s FDCPA claim.

  1. Whether Defendants Are “Debt Collectors”
  2. “Debt Collector” as Defined by 15 U.S.C. § 1692a(6)

Holmes asserts that Sulcer and EDP act indirectly as “debt collectors” because they regularly serve process for debt collection lawsuits. Compl. ¶¶ 10, 11, 21, 22, 25-28, 37. Specifically, Holmes alleges that, by manufacturing false Proofs of Service, EDP and Sulcer assist other debt collectors in obtaining default judgments when debtors fail to appear in court. Id. Moreover, EDP’s purported advertising and marketing of process service to debt collectors suggest that EDP targets at least some of its service of legal process to assist debt collectors. See Compl. ¶ 21. Defendants dispute that they are “debt collectors” under the FDCPA simply because “a portion of [EDP’s] [attorney] services relate to collection actions of consumer debt.” Mot. to Dismiss at 8.

Pursuant to 15 U.S.C. § 1692a(6), a “debt collector” is defined as any person whose principal purpose of business is to collect debt, or “who regularly collects or attempts to collect, directly or indirectly, debts owed or due.” 15 U.S.C. § 1692a(6). Notably, the term “debt collector” is not limited to formal debt collection agencies. See, e.g., Heintz v. Jenkins, 514 U.S. 291, 292, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995) (including within the definition of a “debt collector” a lawyer who regularly, through litigation, tries to enforce consumer debts). In fact, Congress intended the scope of the Act “to cover all third persons who regularly collect debts for others.” S.Rep. No. 95-382, 95th Cong. 1st Sess. 2 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1697-98 (stating that “[t]he requirement that debt collection be done `regularly’ … exclude[s] a person who collects debt for another in an isolated instance, but … include[s] those who collect [debts] for others in the regular course of business.”). Therefore, the language and the legislative history of the FDCPA suggest that an entity qualifies as a “debt collector” if it regularly performs debt collection services, regardless of what percentage of its services relate to debt collection. See S.Rep. No. 95-382, at 3; see also Romine v. Diversified Collection Servs., Inc., 155 F.3d 1142, 1146 (9th Cir.1998) (“Had Congress intended to limit the Act to licensed or registered collection agencies, it would have confined the statutory language to businesses for which debt collection is the `principal purpose.'”). As Holmes alleges that Defendants regularly perform debt collection services, the Court finds that Holmes has sufficiently alleged that Defendants’ actions are those covered by the term “debt collector,” as defined by 15 U.S.C. § 1692a(6).

  1. Process Server Exemption

Nevertheless, the FDCPA does carve out certain exceptions to the term “debt collector,” which Defendants argue renders them exempt from the allegations in this case. See 15 U.S.C. § 1692a(6)(A)-(F). Pursuant to 15 U.S.C. § 1692a(6)(D), for instance, the term “debt collector” does not apply to “any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt.” 15 U.S.C. § 1692a(6)(D). As Sulcer was attempting to serve legal process on Holmes in connection with the judicial enforcement of a debt, Defendants maintain that they fall squarely within this “process server” exemption. See Mot. to Dismiss at 2; Reply Supp. Mot. to Dismiss at 2.

Holmes disputes that Defendants are exempt from the purview of the FDCPA and contends that Defendants’ alleged filing of a false process server return brings Defendants outside of the role of a process server. As Judge Edward Chen noted in Freeman v. ABC Legal Services, Inc., 827 F.Supp.2d 1065 (N.D.Cal.2011) — a similar FDCPA case in which the plaintiff alleged that a legal services corporation filed a false proof of service in superior court in order to obtain a default judgment against plaintiff — “when someone who would otherwise qualify for the exemption `goes beyond being merely a messenger in serving process and engages in prohibited abusive or harassing activities to force an individual to repay a debt,’ the exemption no longer applies and the process server is subject to FDCPA liability.” Id. at 1073 (quoting Flamm v. Sarner & Assoc. P.C., No. 02-4302, 2002 WL 31618443, at *5 (E.D.Pa. Nov. 6, 2002)).

Importantly, 15 U.S.C. § 1692d, which is entitled “Harassment or Abuse,” proscribes debt collectors from “engag[ing] in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. “Without limiting the general application of the foregoing,” Section 1692d lists examples of conduct that is considered unlawful. See 15 U.S.C. § 1692d(1)-(6). For example, a debt collector may not attempt to collect a debt by threatening or using violence to harm a person, using obscene or profane language as a form of abuse, engaging in public shaming, or harassing people with continuous telephone calls. Id.

While Defendants acknowledge that the process server exemption does not apply when someone engages in prohibited abusive or harassing activities as enumerated in 15 U.S.C. § 1692d, Defendants urge this Court to adopt a narrow interpretation of the “abusive and harassing” behavior which forfeits the process server exemption. See Mot. to Dismiss at 5. In particular, Defendants claim that alleged sewer service does not forfeit the exemption because sewer service is not specifically listed in 15 U.S.C. § 1692d as one of the proscribed harassing, oppressive, or abusive behaviors.

The Court is not persuaded by Defendants’ argument that “the filing of a false proof of service cannot be equated with the type of abusive and oppressive conduct specifically identified by the statute.” Mot. at 6. Importantly, the list of proscribed abusive and harassing activities in Section 1692d is non-exhaustive. See 15 U.S.C. § 1692d (listing six harassing and abusive behaviors that violate the statute “[w]ithout limiting the general application” of the statute’s prohibition on harassing, oppressive, or abusive conduct); see also Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1061 (9th Cir.2011) (“The Act includes a non-exhaustive list of examples of proscribed conduct.”). Moreover, courts have specifically held that engaging in sewer service can forfeit the process server exemption. See, e.g., Freeman, 827 F.Supp.2d at 1074 (holding that plaintiff

“sufficiently alleged that Defendants engaged in the practice of `sewer service’ so as to forfeit the process server exemption.”). Similarly, in Spiegel v. Judicial Atty. Servs., No. 09-7163, 2011 WL 382809, at *1 (N.D.Ill. Feb. 1, 2011), a plaintiff filed suit against Judicial Attorney Services, Inc. and an individual process server, claiming that defendants violated the FDCPA’s prohibition on “unfair, harassing, and deceptive” debt collection practices by falsely claiming that they effected personal service on plaintiff in connection with a debt collection lawsuit. The Northern District of Illinois denied defendants’ motion to dismiss based on defendants’ argument that they were exempt from the FDCPA by virtue of the process server exemption because, “if [plaintiff’s] allegations were true, the defendants’ actions would have taken them beyond their role as process servers and rendered them ineligible for the exception.” Id.

Even if sewer service constitutes the type of “abusive and harassing activity” that forfeits the process server exemption, Defendants still dispute that one instance of sewer service suffices. See Mot. to Dismiss at 6. However, Defendants provide no legal support for their “suggestion” that “[a] single isolated incident does not equal the `practice of sewer service’ such that it should obliviate [sic] the process server exemption under the FDCPA.” Id. Moreover, courts have indicated that “the execution of one false proof of service” could “be enough to forfeit the process server exemption.” Freeman, 827 F.Supp.2d at 1074; see also Spiegel, 2011 WL 382809, at *1 (denying defendants’ motion to dismiss based on defendants’ argument that they were exempt from the FDCPA by virtue of the process server exemption even though plaintiff alleged only one act of “sewer service”). Defendants have not provided any cases suggesting the contrary.

In light of Freeman and Spiegel, the Court finds that Holmes has alleged sufficient facts to state a claim that Defendants are not covered by the process server exemption. The Complaint alleges that Defendants engaged in at least one act of sewer service because they “failed to serve court process entrusted to them and instead provide[d] a perjured Proof of Service of Summons.” Compl. ¶ 4. Rather than serving Holmes personally — as Defendants claimed in the Proof of Service — Defendants merely wedged the Summons and Complaint under Holmes’s front door. Further, Holmes alleges that the Proof of Service of Summons describes the person served as a female Caucasian, 50-years-old, with brown hair and brown eyes, 5 feet 8 inches tall, and weighing 165 pounds. See Compl. ¶ 54. However, Holmes is 62-years-old, with blond hair and blue eyes, and weighs 125 pounds. See id. Moreover, Holmes asserts that the Defendants included only limited information on the process server return in an effort shield Defendants from liability if sued. See Compl. ¶ 26. As it may be possible for even one instance of sewer service to forfeit the process server exemption, the Court finds that Holmes has sufficiently alleged that Defendants are “debt collectors” under the FDCPA who are ineligible for the process server exception because of their engagement in “sewer service.” See Freeman, 827 F.Supp.2d at 1074.3

Thus, Defendants’ Motion to Dismiss Plaintiff’s Complaint based on the contention they are not “debt collectors” pursuant to 15 U.S.C. § 1692a(6) of the FDCPA is DENIED.

  1. Whether Defendants Violated any Provisions of the FDCPA

The second issue for the Court to resolve is whether Holmes has alleged conduct that violates any provisions of the FDCPA. Holmes claims that, by filing a false Proof of Service and withholding EDP’s name and process server registration number from the Proof of Service, Defendants violated Sections 1692d, 1692e, 1692e(2), 1692e(10) and 1692f of the FDCPA. See Compl. ¶ 69.

As noted above, Section 1692d prohibits “any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. In addition, Section 1692e prohibits a debt collector from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. Further, Section 1692f prohibits the use of “unfair or unconscionable means to collect or attempt to collect a debt.” 15 U.S.C. § 1692f.

Holmes asserts that Defendants violated Sections 1692d, 1692e, 1692e(2), 1692e(10) and 1692f of the FDCPA by virtue of their engagement in sewer service. Specifically, Holmes asserts that Defendants violated the FDCPA “by making false and misleading representations, and engaging in unfair and abusive practices” which “include, but are not limited to” the following:

(1) manufacturing and selling a fraudulent Proof of Service of Summons that falsely stated that Plaintiff was personally served with a Summons and Complaint when in fact Plaintiff was not;

(2) manufacturing and selling fraudulent, deceptive, and misleading statements and documents which are used in the collection of consumer debts;

(3) knowingly and intentionally withholding their true name and process server registration numbers from process server returns in violation of California Business and Professions Code § 22356.5(a) with the intent to deceive, misrepresent the true nature of the services being provided, and to conceal and obscure Defendants’ joint responsibility for service of process irregularities; and

(4) aiding, abetting and ratifying the fraud, perjury, breach of official duty and other wrongful acts committed by the other Defendants in this case.

See Compl. ¶ 69.

Despite these contentions, Defendants submit that Holmes has failed to sufficiently allege violations of the FDCPA. In addition to the arguments already raised by Defendants as to why they believe that their actions should not constitute “abusive and harassing” conduct as prohibited by 15 U.S.C. § 1692d, see supra Part III.A.1.b, Defendants argue that Plaintiff’s claim must fail because Defendants have presented a prima facie case of valid service, see Reply Supp. Mot. to Dismiss at 5. As the same factual allegations of “sewer service”

[966 F.Supp.2d 935]

discussed above form the basis for Plaintiff’s allegations of FDCPA violations, the Court finds that Holmes has adequately alleged violations of the FDCPA on this basis. See also Freeman, 827 F.Supp.2d at 1075-76 (finding that allegations of sewer service sufficiently stated a claim under FDCPA Sections 1692d, 1692e, and 1692f).4 Thus, the Court now addresses Defendants’ second argument regarding the presumption of valid service.

The Ninth Circuit has held that “a signed return of service constitutes prima facie evidence of valid service which can be overcome only by strong and convincing evidence.” SEC v. Internet Solutions for Bus., Inc., 509 F.3d 1161, 1163 (9th Cir. 2007). Because Defendants filed a signed Proof of Service, see Compl., Ex. 1, Defendants contend that Plaintiff’s mere declaration that she was not served without an additional showing of evidence is insufficient to refute the presumption of validity. See Reply to Mot. to Dismiss at 5-6.

However, a Rule 12(b)(6) Motion to Dismiss challenges the legal sufficiency of the alleged claims, rather than whether a plaintiff’s evidence establishes a likelihood of prevailing at trial. See Fed.R.Civ.P. 12(b)(6); Freeman, 827 F.Supp.2d at 1069 (“The question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of the claim.”). Moreover, courts have held that the presumption of validity of a proof of service may be overcome at trial through the presentation of contradictory evidence. See Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir.1996). As a result, the Court is not persuaded that the Complaint should be dismissed for failure to present “strong and convincing evidence” that overcomes the presumption of validity.

Because Holmes has sufficiently alleged that Defendants are “debt collectors” and that Defendants have violated provisions of the FDCPA, Holmes has set forth a prima facie case for violation of the FDCPA. Therefore, the Court DENIES Defendants’ Motion to Dismiss on this basis.

  1. The Rosenthal Act and California’s Litigation Privilege

Next, Defendants argue that Plaintiff’s claim under the Rosenthal Act is barred by California’s litigation privilege, California Civil Code § 47(b). Mot. to Dismiss at 10. Section 47(b) of the California Civil Code provides in relevant part that, “[a] privileged publication or broadcast is one made … [i]n any … judicial proceeding….” Cal. Civ.Code § 47(b). Defendants argue that the alleged filing of a false proof of service constitutes a “privileged communication” made in a judicial proceeding, and thus falls within the scope of California’s litigation privilege.

The California Supreme Court has held that the litigation privilege “applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” Rusheen v. Cohen, 37 Cal.4th 1048, 1057, 39 Cal.Rptr.3d 516, 128 P.3d 713 (2006). “The purposes of section 47, subdivision (b), are to afford litigants and witnesses free access to courts without fear of being harassed subsequently by derivative actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments, and to avoid unending litigation.” Komarova v. Nat’l Credit Acceptance, Inc., 175 Cal.App.4th 324, 336, 95 Cal.Rptr.3d 880 (2009) (quoting Rusheen, 37 Cal.4th at 1063, 39 Cal.Rptr.3d 516, 128 P.3d 713) (internal quotation marks omitted). “To effectuate these purposes, the litigation privilege is absolute and applies regardless of malice.” Id. Consequently, in Rusheen v. Cohen, the California Supreme Court denied an abuse of process claim and held that, “where the gravamen of the complaint is a privileged communication (i.e., allegedly perjured declarations of service) the privilege extends to necessarily related acts (i.e., act of levying).” 37 Cal.4th at 1062, 39 Cal.Rptr.3d 516, 128 P.3d 713.

However, courts have recognized exceptions to the litigation privilege under statutes that: “(1) are `more specific’ than the privilege, and (2) would be `significantly or wholly inoperable’ if the privilege applied.” Komarova, 175 Cal.App.4th at 337, 95 Cal.Rptr.3d 880 (quoting Action Apartment Ass’n, Inc. v. City of Santa Monica, 41 Cal.4th 1232, 1246, 63 Cal.Rptr.3d 398, 163 P.3d 89 (2007)). Until recently, California state courts had not discussed whether the litigation privilege applies to actions brought under the RFDCPA, and federal district courts were divided on the issue. See id. (citing each line of conflicting district court cases).

To support Defendants’ assertion that the litigation privilege applies here, Defendants cite the minority line of district court cases which stand for the proposition that a claim brought under the RFDCPA is barred by California’s litigation privilege. See Reply Supp. Mot. to Dismiss at 4-5 (citing Lopez Reyes v. Kenosian & Miele, LLP, 525 F.Supp.2d 1158 (N.D.Cal.2007), which held that the RFDCPA claim was not exempt from California’s litigation privilege because the claim was based exclusively on communications made within judicial proceedings), see also id. (citing Nickoloff v. Wolpoff & Abramson, LLP, 511 F.Supp.2d 1043 (C.D.Cal.2007), and Taylor v. Quall, 458 F.Supp.2d 1065 (C.D.Cal.2006), for the same general proposition). Defendants also rely heavily on Rusheen v. Cohen for the proposition that the litigation privilege applies to actions taken in collecting a judgment. See Mot. to Dismiss at 11. Yet, while Rusheen discussed the litigation privilege generally, it did not involve an RFDCPA claim. Thus, Rusheen is distinguishable from the instant action on that basis. See Rusheen, 37 Cal.4th 1048, 39 Cal.Rptr.3d 516, 128 P.3d 713.

However, the California Court of Appeal in Komarova v. Nat’l Credit Acceptance, Inc., 175 Cal.App.4th 324, 95 Cal.Rptr.3d 880 (2009), clarified the issue by adopting the majority viewpoint that the litigation privilege does not bar RFDCPA claims. Id. at 337-338, 95 Cal.Rptr.3d 880; see also Santos v. LVNV Funding, LLC, No. 11-02683, 2012 WL 216398, at *2-3 (N.D.Cal. Jan. 24, 2012) (citing Komarova to support the finding that the litigation privilege does not apply to RFDCPA claims); see also Blackburn v. ABC Legal Servs., Inc., No. 11-01298, 2011 WL 8609453, at *2-3 (N.D.Cal. June 16, 2011) (“[T]he Court follows Komarova and holds that the litigation privilege does not apply to bar Plaintiff’s claim under the Rosenthal Act.”). Specifically, the Komarova Court held “that the [litigation] privilege cannot be used to shield violations of the [RFDCPA]” when the two statutes conflict. Komarova, 175 Cal.App.4th at 337-338, 95 Cal.Rptr.3d 880. In so doing, the Court of Appeal in Komarova reasoned that applying the privilege “would effectively vitiate the Rosenthal Act and render the protections it affords meaningless.” Id. at 338, 95 Cal.Rptr.3d 880. Therefore, the Court of Appeal “applie[d] the familiar principle of statutory construction that, in cases of irreconcilable conflict, the specific statute prevails over the general one.” Id. (quoting Oie v. N. Star Capital Acquisitions, L.L.C., 486 F.Supp.2d 1089, 1100 (C.D.Cal.2006)). Here, the litigation privilege similarly conflicts with the RFDCPA as applied in this action, because the privilege would completely shield Defendants from liability for the improper collection of debt.

Nevertheless, Defendants maintain that Komarova is not controlling in the instant action. See Reply Supp. Mot. to Dismiss at 5. Defendants argue that neither Komarova nor any “of the cases cited by Plaintiff where the court denied application of the litigation privilege to state law claims involved cases where the entirety of the alleged conduct took place within the context of litigation such as the filing of a false proof of service.” Reply Supp. Mot. to Dismiss at 5.

Notably, “[t] he California Supreme Court has not ruled on the issue of whether the litigation privilege bars Rosenthal Act claims founded on unfair debt collection practices that occur during the course of litigation.” Huy Thanh Vo v. Nelson & Kennard, 2013 WL 1091207, at *14 (E.D.Cal. Mar. 15, 2013). Nevertheless, the Court finds significant that since the issuance of Komarova — the sole published decision by a California appellate court to address the litigation privilege in the context of the RFDCPA — not “a single federal court has found Rosenthal Act claims to be barred by the litigation privilege.” Id. at *14. In fact, district courts have generally interpreted Komarova as holding broadly that “[t] he California litigation privilege … does not apply to RFDCPA violations.” Santos, No. 11-2683, 2012 WL 216398, at *3; see Blackburn, No. 11-01298, 2011 WL 8609453, at *2 (“The California Court of Appeal … held that the litigation privilege does not apply to bar claims under the Rosenthal Act.”). The Court also finds the reasoning of Komarova to be persuasive in light of the fact that the RFDCPA is a remedial statute, and thus “should be interpreted broadly in order to effectuate its purpose.” Komarova, 175 Cal.App.4th at 340, 95 Cal.Rptr.3d 880 (internal quotation marks and citations omitted); see generally People ex rel. Lungren v. Superior Court, 14 Cal.4th 294, 313, 58 Cal.Rptr.2d 855, 926 P.2d 1042 (1996) (“civil statutes for the protection of the public are, generally, broadly construed in favor of that protective purpose”); see also Welker v. Law Office of Horwitz, 626 F.Supp.2d 1068, 1072 (S.D.Cal.2009) (“[T]he Court finds ample authority that the [California litigation] privilege should not be applied to claims arising under the FDCPA or California’s Rosenthal Act.”).

For the foregoing reasons, the Court declines to dismiss Plaintiff’s RFDCPA claim as barred by the litigation privilege.5 Accordingly, the Court DENIES Defendants’ Motion to Dismiss.

  1. Motion to Strike

Next, Defendants move to strike various portions of Plaintiff’s Complaint as immaterial or scandalous. First, Defendants move to strike as immaterial Holmes’s allegations regarding the filing of a false proof of service because Defendants contend that the allegations are barred by the litigation privilege. Mot. to Strike, ECF No. 7, at 3. As discussed above, the Court rejects this argument. See Komarova, 175 Cal.App.4th at 337-38, 95 Cal.Rptr.3d 880. The Court therefore DENIES Defendants’ Motion to Strike allegations that Defendants filed a false proof of service.

Second, Defendants move to strike as scandalous and immaterial Holmes’s allegations that Defendants engaged in sewer service and other improper business practices. See Mot. to Strike at 5. Scandalous material has been defined as allegations that cast a “cruelly derogatory light” on a party or person. See Righthaven LLC v. Democratic Underground, LLC, 791 F.Supp.2d 968, 977 (D.Nev.2011); In re 2TheMart.com, Inc. Sec. Litig., 114 F.Supp.2d 955, 965 (C.D.Cal.2000). Immaterial matter is “that which has no essential or important relationship to the claim for relief or the defenses being pleaded.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994) (quoting 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382, at 706-07 (1990)). The Court finds that Holmes’s allegations do not rise to the level of casting Defendants in a “cruelly derogatory light” and are therefore not “scandalous.” The Court further finds that Defendants have not demonstrated that the allegations of sewer service or improper business practices are entirely unrelated to the claims or that these allegations prejudice Defendants. See id. at 1528; see also Cal. Dep’t of Toxic Substances Control v. Alco Pac., Inc., 217 F.Supp.2d 1028, 1033 (C.D.Cal.2002) (“Given their disfavored status, courts often require a showing of prejudice by the moving party before granting [a motion to strike].”) (internal quotation marks and citation omitted); see also Wailua Assocs. v. Aetna Casualty and Surety Co., 183 F.R.D. 550, 553-54 (D.Haw.1998) (“Matter will not be stricken from a pleading unless it is clear that it can have no possible bearing upon the subject matter of the litigation; if there is any doubt as to whether under any contingency the matter may raise an issue, the motion may be denied ….”) (internal quotation marks and citation omitted). For example, Holmes’s allegations of improper business practices could serve to establish that EDP aided, abetted, and ratified Sulcer’s actions or that Defendants have forfeited the process server exemption. Accordingly, the Court finds that the allegations of sewer service and improper business practices are not immaterial.

Given that motions to strike are generally disfavored and the challenged portions of the Complaint are relevant to the claims, the Court DENIES Defendants’ Motion to Strike. See Cruz, No. 12-CV-00846, 2012 WL 2838957, at *2.

  1. CONCLUSION

For the foregoing reasons, the Court hereby DENIES Defendants’ Motion to Dismiss, and DENIES Defendants’ Motion to Strike.

IT IS SO ORDERED.

_____________________

 

FootNotes

  1. As explained in Richardson v. Alliance Tire & Rubber Co., 158 F.R.D. 475 (D.Kan. 1994), the term “sewer service” originated in jurisdictions in which process could be served by professional process servers rather than public officials, and derived from those “process servers [who] once followed a practice of disposing of process given to them to serve (e.g., by throwing it down a sewer) and then falsely returning that they had duly served it.” Id. at 480 n. 5 (quoting 1 Robert C. Casad, Jurisdiction in Civil Actions § 3.01[7][d] (2nd ed.1991)).
  2. On February 28, 2013, the parties filed a joint stipulation to amend the briefing schedule, which the Court hereby grants. See Stipulation, ECF No. 15.
  3. Although Defendants contend that “[e]xtending the provisions of the FDCPA to process servers … would have a chilling effect on process servers and grind the already slow wheels of justice to a halt, or at least a trickle,” Mot. at 2, the Court doubts that such a catastrophic effect will indeed transpire. Notably, pursuant to 15 U.S.C. § 1692k, “[a] debt collector may not be held liable in any action … if the debt collector shows by a preponderance of evidence that the 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). Thus, while it may ultimately prove true that Sulcer merely made a mistake when serving Holmes and did not indeed engage in “sewer service,” such a determination will turn on evidence that must be evaluated at a different stage of this case. See Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1514 (9th Cir.1994) (“The language of Section 1692k(c) indicates that the bona fide error exception is an affirmative defense, for which [defendant] has the burden of proof at trial.”).
  4. Defendants also raise for the first time in their Reply in support of the Motion to Dismiss that “[n]either the FDCPA nor the RFDCPA directly regulate service of process,” and “[t]he RFDCPA does not apply to Defendants.” see Reply Supp. Mot. to Dismiss at 7-8. This Court “need not consider arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir.2007); see also Gold v. Wolpert, 876 F.2d 1327, 1331 n. 6 (7th Cir.1989) (“It is well settled that new arguments cannot be made for the first time in reply. This goes for new facts too.”). Thus, the Court declines to consider these arguments.
  5. In addition, it is well established that “[t]he California litigation privilege … does not apply to FDCPA claims.” Santos, Case No. 11-02683, 2012 WL 216398 (citing Welker, 626 F.Supp.2d at 1072). Moreover, the litigation privilege also conflicts with and would nullify the UCL. “[B]ecause Plaintiff’s [UCL] claim is premised on violations of the Rosenthal Act… and on violations of the FDCPA, a federal claim to which California’s litigation privilege is inapplicable, Plaintiff’s [UCL] claim is not barred by the litigation privilege either.” Blackburn, 2011 WL 8609453, at *2-3 (following Komarova).

Forms Committee Report – September, 2016 – CALSPro Conference

Forms Committee Report

Sept. 30, 2016

CALSPro 2016 Annual Conference, 10/8/16

This year saw few changes to court forms.  The majority of those involve the enforcement of judgment.

There is a new Current Dollar Amount from the Enforcement of Judgments form that was revised in April, 2016.

There were two changes to the Earnings Withhold Order (EWO) forms.  The latest operative EWO was revised effective on July 1, 2016.  The latest form references a website for employer’s to use to calculate the proper amount to withhold from the debtor who is a low income earner.   Legislation modified the formula for wage garnishments of a low income earner, reducing the worker’s percentage of 25% of “disposable income” subject to execution.

The Judicial Council proposed changes to the Writ of Execution and Order of Examination form.

The Writ of Execution form is still being considered, and will not be revised in 2017.  The Order to Appear for Examination will be submitted for approval to the Judicial Council in a couple of weeks. The proposed changes add instructions on page two to the judgment creditor to have the order served by a sheriff, registered process server, or someone specially appointed for the order to be enforced.

All current forms may be found on the California Judicial Council web site at http://www.courts.ca.gov/forms.htm

 

 

 

 

Officer of the Court

I have been flushing out my bloated email account and came across the following written response to a process server in 2011 who had put the phrase “Officer of the Court” on his business card and asked for my opinion about it.

The opinion then seems to be still relevant, but I have since recently spoken to another process server who gave me another perspective about it. More to come – maybe.

I welcome your thoughts.

    I have done a little research on this topic recently, and our Criminal Law Speaker at our PSI dinner in Hayward Friday evening addressed it because, coincidentally, it came up.

An “officer of the court” (according to a Wikipedia entry) is described as follows:

“The generic term officer of the court (not to be confused with court officers) applies to all those who, in some degree in function of their professional or similar qualifications, have a legal part—and hence legal and deontological obligations—in the complex functioning of the judicial system as a whole, in order to forge justice out of the application of the law and the simultaneous pursuit of the legitimate interests of all parties and the general good of society.

They can be divided into the following functional groups; in most case various synonyms and parallels exist as well as a plethora of operational variations, depending on the jurisdiction and the changes in relevant legislation …”

    There is not a clear definition, having checked 2 law dictionaries, “Words and Phrases” and “Corpus Juris Secundum” in the law library.

    Black’s Law Dictionary defines it as follows:  “A person who is charged with upholding the law and administering justice.”

    Obvious and most common examples of an “officer of the court” would be a judge, clerk, bailiff, sheriff, peace officer, and since about the early 1900s, attorneys.  It could also be a court interpreter, receiver, and court stenographer, all of whom are in some manner are appointed by a court or participate in or serve to facilitate the administration of justice in the courts.

   What I have concluded is that an officer of the court is one who is acting at the direction of or under the authority of the court.

    Process servers in some states derive their authority from the court.  Arizona process servers, for instance, are “certified” by the AZ Supreme Court, and therefore, are identified as an “officer of the court” by statute (ARS §11-445(I)). .  There are others. Oklahoma licensed process servers are referred to as an “officer of the court” (ORCP § 12-158.1(C)(1)). Illinois refers to those process servers upon special appointment.

    On the other hand, some states specially forbid use of the term.  The New Jersey Professional Process Servers Association has promulgated a Canon of Ethics prohibiting their members from using the term, and a Fifth Circuit Court of Appeal case ruled that a Texas process server was not an officer of the court for purposes of removal (Herron v. Continental Airlines, Inc., 73 F.3d 57 (1996))  That case cited as precedent a U.S. Supreme Court decision:

“… Our decision is guided by Cammer v. United States, 350 U.S. 399, 76 S.Ct. 456, 100 L.Ed. 474 (1956), holding that an attorney was not a court “officer” within the ordinary meaning of that term:

Certainly nothing that was said in Ex Parte Garland[, 4 Wall 333, 18 L.Ed. 366 (1866) ] or in any other case decided by this court places attorneys in the same category as marshals, bailiffs, court clerks or judges. Unlike these officials a lawyer is engaged in a private profession, important though it be to our system of justice. In general he makes his own decisions, follows his own best judgment, collects his own fees and runs his own business. The word “officer” as it has always been applied to lawyers conveys quite a different meaning from the word “officer” as applied to people serving as officers within the conventional meaning of that term. We see no reason why the category of “officers” subject to summary jurisdiction of a court under Sec. 401(2) should be expanded beyond the group of persons who serve as conventional court officers and are regularly treated as such in the laws.

…”

    What is emerging for me is that the term “officer of the court” is one whose authority to act is derived from the court, as an officer thereof – similar to (but not the same as) a “Court Officer”, or a “Public Officer”.  a California Registered Process Server does not derive that authority from the court by appointment or certification.  Our authority is a statutory creation, setting forth a registration requirement with the county clerk, a bonding requirement, and a fingerprinting requirement.  Therefore, I do not consider a California Registered Process Server an officer of the court.

   We may serve process, and do so in an analogous manner as those other officers of the court (sheriffs), but that does not make us an officer of the court.

   That being said, our speaker at our dinner disagrees, and based on the Black’s Law Dictionary definition I read during our discussion, he concluded that we were officers of the court when serving process as an extension of the court, and serving process, and would have no problem referring to a process server that way.

 

 

Subpoenas for HIIPA Records

A recent public post by a lawyer writing for ACH Media website entitled You Must Respond Carefully When You Are Served With a Subpoena caught my attention when he made the following assertion:

A court subpoena carries more weight than one from an attorney.

This did not seem legally correct at the time.  Self-initiating discovery in civil cases has been the trend in both federal and state courts starting in the mid-1980s, wherein lawyers, as officers of the court, were permitted by statute to issue subpoenas to witnesses for depositions and trials, without going to the courthouse to do so. Regardless of who or how it was issued, any objection to the subpoena would find the follow the same route through the court in the form of a motion to quash service or to modify the scope of the subpoena, or even a protective order.

After re-reading the article, I then realized that the it was written by a lawyer with an intended audience of risk managers or the people in health information management at hospitals.  The tenor and topic of the article was a good, solid directive to those dealing with the release of patient’s healthcare records in response to subpoenas and search warrants under the Health Insurance Portability and Accountability Act (HIIPA).

The author provided no authority for his assertion about court issued vs. attorney issued subpoenas. He alluded to the lack of a notification requirement under HIIPA that would also require a patient’s written consent or a court order to release healthcare records.

Upon a little research, this characterization and distinction between a court and attorney issued subpoena is found in 45 CFR 164.512(e), wherein this notification is required under HIIPA.

I am assuming that is where it came from. I have not found any other authority why a court issued or attorney issued subpoena would be any more or less valid and enforceable.

Civil discovery laws are state-specific. Some states have not enacted a statutory construct for providing a patient notice when their records are being subpoenaed.

California, and I assume other states, have procedures that provide such sufficient notice.  California did it almost 10 years before HIIPA became law when they enacted the consumer notice requirement for serving subpoenas that demand production of an individual’s personal records.  (See CCP sec. 1985.3, et seq.) Because of this notification provision, it was already HIIPA compliant.

So, in that context, the author didn’t explain the reasoning for that statement. It was factually correct, but not completely correct. At least not in California.

 

New York Passes Bill to Protect Process Servers

Governor Andrew Cuomo has signed into law bills S2991-A / A6772-A making an assault on a process server, among other professionals, a felony. The law will go into effect on November 1, 2016.

Adding “process server” to the list of those deserving special protection, an assault on a process server would become a class D Felony. An assault is when the person “inten[ds] to cause serious physical injury to another person, he causes such injury to such person or to a third person.”

NY combines both the crime of assault and battery into a single law. California, for instance, makes it a crime for assault (imminent threat and present ability to cause serious injury) and battery (the unlawful contact resulting in injury). Those statutes are found in Penal Code secs. 241 (assault) and 242 (battery).

This NY law does more than protecting process servers from an assault.

The law also amends NY Penal Law 120.05, adding a new sub-division 14:


With intent to prevent or obstruct a process server, as defined in Section eighty-nine-t of the general business law, from performing a Lawful duty pursuant to article three of the civil practice law and Rules, or intentionally, as retaliation against such a process server For the performance of the process server’s duties pursuant to such Article, including by means of releasing or failing to control an animal Evincing the actor’s intent that the animal prevent or obstruct the Lawful duty of the process server or as retaliation against the process Server, he or she causes physical injury to such process server.

It also appears to add a crime of obstructing a process server from performing a lawful duty of serving process, or in retaliation. This the 19th state and the Federal law which makes it a crime to obstruct service. (See a list of those laws here.) The law also further prohibits the use of an animal to obstruct or retaliate if the server sustains physical injury, implying that there is no obstruction or retaliation with an animal without an injury. Intimidation is OK, but not obstruction or retaliation without physical injury. There seems to be an unintended distinction between culpability between the assault resulting in “serious physical injury”, and the obstruction or retaliation with an animal resulting in “any physical injury”.

This is going to help NY process servers, and could spread to other states looking for an opportunity to pattern a similar law elsewhere.

View a discussion on the Process Server Institute Facebook page or comment below.

Federal Rule 5 – Proposed Amendments

The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States is proposing a change to Federal Rule 5, among others.  This is really the only change that could potentially affect process servers.

My local court (USDC, ND Cal) requires mandatory efiling.  This proposed amendment would mandate it in all federal courts throughout the country, and not rely on local rules.  Pro se litigants will be exempt from efiling.  A proof of service of a summons, application for a writ of attachment, etc. will all have to be filed electronically by the lawyer. This may affect process servers.  If approved, the changes will go into effect on December 1, 2018, with or without revision.

The amendment retains the ability to personally serve opposing counsel, but allows for service of notice on a consenting registered party by electronic means. Any documents to be filed, subsequent to the complaint, will require efiling.

A comment to the proposal explains why this rule is being amended:

Provision for electronic service was first made when electronic communication was not as widespread or as fully reliable as it is now. Consent of the person served to receive service by electronic means was required as a safeguard. Those concerns have substantially diminished, but have not disappeared entirely, particularly as to persons not represented by an attorney.

Here is a link to the new proposal.  See page 203, et seq.

 

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