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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MUZI GAO, ) Case No. SACV 20-01355 DDP (ADSx) ) 12 Plaintiff, ) ) ORDER RE: CROSS-MOTIONS FOR 13 v. ) SUMMARY JUDGMENT ) 14 CAMPUS 150 VENTURE II, LLC, ) et al., ) 15 ) [Dkt. 58, 65, 71] Defendants. ) 16 17 Presently before the court are cross motions for summary 18 judgment, one filed by Defendants Campus 150 Venture II, LLC 19 (“Campus”) and BYL Collection Services, LLC (“BYL”), and the other 20 filed by Plaintiff Muzi Gao (“Gao”). Having considered the 21 submissions of the parties, the court grants the motions in part, 22 denies the motions in part, and adopts the following Order. 23 I. Background 24 In August 2018, Plaintiff entered into a residential lease 25 agreement with Defendant Campus. The lease required Plaintiff to 26 pay 12 monthly installments of $860, plus an additional $100 per 27 month for garage parking. Before moving in, Plaintiff paid “a 28 Page ID #:2071

security deposit of $1,920 — representing two months’ worth of rent.”1 (Declaration of Muzi Gao, ¶ 3.) The parties dispute whether Plaintiff timely paid rent for the months of June and July 2019. According to Campus’ regional manager, Chenoa Anderson, Gao did not make rent payments for June and July, and owed $1,929 in back rent when her lease expired at the end of July 2019. (Declaration of Chenoa Anderson ¶ 7.) When deposed, however, Anderson testified that Plaintiff never missed any rent payments. (Declaration of Ryan McBride, Ex. I at 26-27.) In any event, Campus did not charge Plaintiff late fees for unpaid rent, and applied the $1,920 “deposit” amount toward her account. After the lease expired, Plaintiff incurred a $135 assessment for apartment and carpet cleaning fees. (Anderson Decl. ¶ 10.) On August 13, Campus sent her a “Final Account Statement” indicating (1) that the “deposit” had been applied to “charges due,” (2) a zero balance at move-out, and (3) the additional cleaning charges of $135. (McBride Decl., Ex C.) The final statement indicated that payment was due within 30 days. (Id.) On September 7, 2019, Plaintiff mailed a check for the cleaning charges to Campus. (Gao Decl. ¶ 12; Ex. N). As of September 24, however, Campus had not received Plantiff’s payment, and thus placed her in “collection” status. At some point thereafter, Campus assigned the account to BYL, the collections agency Campus regularly used in connection with delinquent

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accounts. According to Anderson, Campus referred Gao’s account to BYL on September 27. (Anderson Decl. ¶ 15.) BYL’s records indicate, however, that BYL received the account on October 1. (McBride Decl., Exs. E, I at 38.) There is no dispute, however, that Campus received Plaintiff’s payment on September 27, “unselected” her “in collection status,” and closed her account. Nevertheless, BYL believed that Gao’s account continued to be delinquent. (Declaration of Jeffrey Heft ¶ 7.) In December, BYL reported the account as delinquent to two credit reporting bureaus, Equifax Information Services, LLC (“Equifax”) and Trans Union, LLC (“Trans Union”). (Declaration of Jeffrey Heft ¶ 7.) Soon after, Plaintiff noticed an adverse impact on her credit report and initiated a dispute with both Experian and Trans Union. (Gao Decl. ¶¶ 15-16.) It appears that BYL received a verification request on January 17, 2021. (McBride Decl., Ex. H at 49.) However, the BYL employee assigned to the matter, Caroline Alessandro (“Alessandro”), did not follow BYL procedures and did not conduct an investigation. (Id. at 50.) The employee nevertheless reported the information accurate as reported. (Id. at 51.) In February, both credit bureaus notified Gao that the debt was correctly reported. (Id. ¶ 17.) In March 2020, Plaintiff called Campus to confirm that her account was paid in full. (Declaration of Craig Mariam, Ex. 14 at 61-62.) That same day, Campus sent BYL and Gao an e-mail acknowledging that Gao’s account had a zero balance, and requesting that BYL correct the account and “resubmit to her credit report.” (Id. at 63; Anderson Decl. ¶ 16; Ex. ^[5].) Gao did not contact BYL at that time. BYL’s President, Jeffrey Heft, states that BYL never

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1]} became aware of the Campus e-mail because the message was diverted 2|| to the BYL recipient’s spam folder. (Heft. Decl. 16.) 3 In April, Plaintiff sent dispute letters to Campus, BYL, Equifax, and Trans Union. (Gao Decl. @ 22.) BYL again received 5} verification requests from the credit bureaus. BYL employee 6]}/ Alessandro, who had failed to conduct a prior investigation, was 7 again assigned to the matter. Alessandro, working from home due to 8]} the COVID pandemic and related government mandates, once again failed to conduct an investigation, and again reported the debt as 10!) accurate. (McBride Decl., Ex. H at 60-61; Heft Decl. FIFI 8-10.) 11 BYL received Gao’s direct dispute on April 28, 2020. (Heft 12}/ Decl. @ 11.) This time, a different BYL employee handled Gao’s 13} letter, and on May 8, BYL marked the account “in dispute” and notified the credit bureaus of that change. (Id. 7 12.) BYL then 15} confirmed with Campus that Gao’s account was not delinguent. The 16}/ account was removed from Gao’s credit report on August 9, 2020. 17] (Heft Decl. I 14.) 18 Plaintiff’s complaint alleges causes of action against BYL for 19]/ violations of the Fair Credit Reporting Act (“FCRA”’), the Fair Debt 20] Collection Practices Act (“FDCPA”’) and California’s Consumer Credit 21]} Reporting Agencies Act (“CCRAA”).* Plaintiff also alleges claims 22}} under California’s Rosenthal Fair Debt Collection Practices Act? (“RFDCPA”) and for defamation against both BYL and Campus, as well 24|/as a negligence claim against Campus. Campus and BYL seek summary 25 26 57 * See 15 U.S.C. § 1681, et segq.; 15 U.S.C. § 1692, et seg.; Cal. Civil Code § 1785, et seq. 28 > See Cal. Civil Code § 1788, et seq.

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judgment on all claims. Plaintiff seeks partial summary judgment on certain elements of certain of her claims. II. Legal Standard Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All reasonable inferences from the evidence must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the moving party does not bear the burden of proof at trial, it is entitled to summary judgment if it can demonstrate that “there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 323. Once the moving party meets its burden, the burden shifts to the nonmoving party opposing the motion, who must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. Summary judgment is warranted if a party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. A genuine issue exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving Case §:20-cv-01355-DDP-ADS Document 93 Filed 01/31/22 Page6Gof16 Page ID #:2075

1] party,” and material facts are those “that might affect the outcome 2|)/ of the suit under the governing law.” Anderson, 477 U.S. at 248. 3] There is no genuine issue of fact “[w]here the record taken as a 4} whole could not lead a rational trier of fact to find for the 5} nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio 6 Corp., 475 U.S. 574, 587 (1986). 7 It is not the court’s task “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 9] 1278 (9th Cir. 1996). Counsel have an obligation to lay out their 10] support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). The court “need not examine the entire 12} file for evidence establishing a genuine issue of fact, where the 13}/ evidence is not set forth in the opposition papers with adequate 14] references so that it could conveniently be found.” Id. IIIT. Discussion 16 A. RFDCPA Claims 17 i. Consumer Credit Transaction 18 The RFDCPA limits the ways in which debt collectors may seek to collect outstanding consumer debts. Cal. Civ. Code § 1788.10. 201 Such debts include “consumer credit transactions,” in which 21]| “property, services, or money is acquired on credit.” Cal. Civ. Code § 1788.2(e); (£). The parties appear to agree that residential rent collection is not a consumer credit transaction. See Phillips 24 v. Archstone Simi Valley LLC, No. CV155559DMGPLAX, 2016 WL 7444550, 25]/at *5 (C.D. Cal. Dec. 15, 2016). The parties disagree, however, as 26])/ to whether the $135 debt at issue here represents a rental debt or, 27\/as Plaintiff characterizes it, a charge for a cleaning service that 28 Page ID #:2076

was payable within thirty days, and thus constituted a credit transaction. Defendants’ argument is premised on the contention that Gao missed two rent payments, and that Gao is attempting to create a credit transaction where none otherwise would have existed. This line of reasoning is not entirely clear. There is some uncertainty as to the character of Gao’s $1,920 “deposit.” Although Gao herself referred to it as such, and it appears as a “deposit” on her account statement, Defendants cite to no provision in the Lease Agreement requiring a security deposit. Rather, the Lease Agreement allows Campus to require “advance installments of basic rent.” The Lease Agreement also provides that “all such payments shall be considered advanced rent.” Although the property manager’s declaration states that Plaintiff did not make rental payments after May 2019, it appears that Plaintiff did not make rental payments for June and July because she had already paid $1,920 in “advance rent.” Thus, as the same property manager later testified, Gao never actually missed any rent payments. At the very least, there remains a triable issue as to the predicate for Defendants’ argument: that Gao failed to pay rent due. Regardless of the outcome of that question of fact, however, Defendants appear to concede that the cleaning charges were not incurred or billed, nor cleaning services provided, until after the termination of the Lease Agreement. Nor can there be any dispute that Gao was granted thirty days to settle those charges.^[4] There

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is, therefore, at least a triable issue as to whether Gao and Campus engaged in a consumer credit transaction.^[5] ii. Whether Campus is a debt collector With respect to the RFDCPA claim, Campus raises the additional argument that it, as opposed to BYL, is not a debt collector. The statute defines “debt collector” as one “who, in the ordinary course of business, regularly . . . engages in debt collection.” Cal. Civ. Code § 1788.2(c). There is no evidence, however, that Campus ever engages in debt collection, let alone regularly does so in the ordinary course of business.^[6] Rather, Campus refers all delinquent accounts to BYL. (Anderson Decl. ¶ 14.) Although Plaintiff argues that Campus should be deemed to regularly engage in debt collection because it regularly assigns collections to BYL, Plaintiff does not cite to, nor is the court aware of, any authority for the proposition that assigning a debt to a third

4(...continued) 20 discretion, in light of the Lease Agreement’s provision stating that all advance payments were to be considered as rent payments. 21 Indeed, although Defendants assert that Gao has attempted to re- characterize a rental debt as a consumer debt, it would appear that 22 Campus, not Gao, sought to define the nature of the debt by applying funds toward one type of charge rather than another. 23

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party constitutes “an act or practice in connection with” debt collection.^[7] Absent any evidence that Campus itself regularly engages in debt collection in the ordinary course of business, Campus is entitled to summary judgment on Plaintiff’s RFDCPA claim.^[8] B. FDCPA Claims Under the FDCPA, a debt collector may not use a false representation of “the character, amount, or legal status of any debt” in connection with the collection of a debt. 15 U.S.C. § 1692e(2)(A). Nor may a debt collector “use unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. Such unfair means include the “collection of any amount . . . unless such amount is expressly authorized by the agreement creating the debt or permitted by law.”9 Defendants maintain that BYL did not violate the FDCPA because BYL “merely reported that a debt was owed,” and “[n]ever demanded any payment from Ms. Gao.” (Motion at 15:27-16:1.) In her briefs to this court, including her reply in support of her motion for summary judgment, Plaintiff argues that BYL did send

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1] her a collection letter. The record includes an October 7 letter 2\| from BYL to Plaintiff bearing a “BYLCollections” logo, referring to 3]/a $135 debt. (McBride Decl., Ex. T.) The letter explicitly 4|| stated, “This communication is from a debt collector and is an 5] attempt to collect a debt.” (“Id.) The letter also included a 6]}) payment stub captioned “Pay By Mail” and listing an “Amount Due” of 71 $135, with additional instructions on how to enter credit card 8]} payment information. (Id.) At oral argument, however, Plaintiff 9}} conceded that she never received the letter. The letter cannot, 10}| therefore, serve as the predicate for Plaintiff’s FDCPA claims. ^[11] Alternatively, Plaintiff argues that BYL’s inaccurate 12]) reporting to the credit reporting agencies constitutes a false representation of a debt for purposes of 15 U.S.C. § 1692e(2) and 14]/ an unfair means to collect a debt under 15 U.S.C. § 1692f. Several 15}/ courts have indeed suggested that reporting of information to 16]/ credit reporting agencies is sufficiently “connected to debt 17} collection,” at least for purposes of 15 U.S.C. § 1692e(2) (A). 18 |} Memmott v. OneWest Bank, No. CIV. 10-3042-CL, 2011 WL 1560985, at 19][*12] (D. Or. Feb. 9, 2011); see also Sotto v. Mountain Lion 20 || Acquisitions Inc., No. 818CVOO0245JLSDFM, 2018 WL 6167922, at *3 21 (C.D. Cal. Nov. 8, 2018); Yulaeva v. Greenpoint Mortg. Funding, 22}} Inc., No. CIVS-09-1504 LKK/KJM, 2009 WL 2880393, at[*10] (E.D. Cal. 23] Sept. 3, 2009) (“[P]laintiff’s claim here is based on reporting of 24|| default to credit reporting agencies, an activity .. . that is 25} also squarely connected to debt collection.”); cf. Morgovsky v. 26] Creditors’ Collection Serv. of San Francisco, 19 F.3d 28 n.1 (9th Cir. 1994) (discussing jurisdiction over claim of allegedly 28

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misleading report to credit agency in violation of 15 U.S.C. § 1692e(2)(A)) (unpublished disposition). Accordingly, Plaintiff’s motion is granted with respect to the question whether FDCPA violations occurred under 15 U.S.C. § 1692e.10 C. Bona Fide Error Defendants also seek summary judgment on Plaintiff’s FDCPA, FCRA, CCRAA, and RFDCPA claims on the basis of affirmative defenses of bona fide error and reasonable procedures. A debt collector is not liable for an FDCPA violation if “the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” Reichert v. Nat’l Credit Sys., Inc., 531 F.3d 1002, 1005–06 (9th Cir. 2008) (quoting 15 U.S.C. ¶ 1692k(c)). The FCRA, CCRAA, and RFDCPA contain similar provisions. See 15 U.S.C. § 1681m(c); Cal. Civ. Code § 1785.25; Cal. Civ. Code § 1788.62(e). BYL concedes that its employee, Alessandro, failed to conduct an appropriate, or indeed any, investigation in response to the verification requests from the credit agencies, and erroneously confirmed the validity of the reported debt multiple times. There is no direct evidence, however, of any intentional policy decision on BYL’s part to not conduct investigations. Indeed, once a competent employee became aware of Plaintiff’s dispute, BYL changed

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the debt status to “disputed” within ten days, notified the credit agencies of the change, and resolved the entire matter within three months. A reasonable trier of fact could conclude that BYL’s failure here was “an isolated instance of human error that was promptly cured.” Brown v. Equifax Info. Servs., LLC, No. 1:09-CV-0168-CAM-LTW, 2010 WL 11647403, at[*17] (N.D. Ga. Feb. 16, 2010) (collecting cases). The record does not, however, compel such a conclusion. Alessandro was one of only six BYL employees, and served not as an entry-level new hire, but rather as BYL’s compliance manager. The nature of her position, combined with her repeated failures, give rise to a genuine dispute as to BYL’s willful or reckless conduct.^[11] Even assuming BYL’s mistakes were unintentional, BYL can only escape liability if its policies were (1) “reasonably adapted to avoid the error” and (2) actually maintained. Reichert, 531 F.3d at 1006 (quoting Johnson v. Riddle, 443 F.3d 723, 729 (10th Cir.2006); Wilhelm v. Credico, Inc., 519 F.3d 416, 421 (8th Cir.2008) Both of these questions present disputes of fact. Defendants have introduced evidence of BYL’s procedures, policies, and employee-training efforts. (Heft Decl., ¶¶ 3-4; Exs. 6-8.) It is not clear, however, whether or how those particular policies generally prevented total failures to investigate, such as Alessandro’s. Furthermore, those policies may be of limited relevance here, given Defendants’ own evidence that the COVID-19 pandemic “had a severe impact on BYL,” “posed significant

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1} difficulties in terms of monitoring employee productivity,” and 2 || required BYL to “invest[] in and adopt[] new technologies.” (Heft 31 Decl. 74 10.) The nature and extent of BYL’s COVID-adjusted 4!) policies remains to be seen, and whether those procedures were 5 |} reasonable is a question for the trier of fact.’ 6 D. Emotional Distress Damages 7 Lastly, Defendants seek summary judgment on Plaintiff’s claim for emotional damages. “To survive summary judgment on an emotional 9! distress claim under the FCRA, Plaintiff must submit evidence that 10]}/ reasonably and sufficiently explains the circumstances of his 11] injury and does not resort to mere conclusory statements.” 12] Taylor v. First Advantage Background Servs. Corp, 207 F. Supp. 3d 1371095, 1102 (N.D. Cal. 2016) (quoting Centuori v. Experian Info. Solutions, Inc., 431 F.Supp.2d 1002, 1010 (D.Ariz.2006)). A 15] plaintiff’s testimony alone may be sufficient to meet this burden. 16] Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1040 (9th Cir. 17} 2003). 18 Courts have found sufficient detail in plaintiffs’ testimony 19]}/ where, for example, plaintiffs testify as to specific forms and 20 manifestation of mental distress. See, e.g., Llewellyn v. Allstate 21} Home Loans, Inc., 711 F.3d 1173, 1183 n.3 (10th Cir. 2013) 22|| (discussing “drenching night sweats, panic attacks,” “great stress 23|) and anxiety,” and plaintiff’s feeling that he “could not 241 recover.”); Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 25] 241 (4th Cir. 2009) (discussing “headaches, sleeplessness, skin 26 27 ‘ This triable issue also precludes a grant of summary 28 judgment in Plaintiff’s favor on her FDCPA, FCRA, CCRAA, and RFDCPA claims.

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1} acne, upset stomach, and hair loss,” along with testimony from 2|| third parties). At the same time, some courts have found 3} insufficient detail even where plaintiffs testify as to specific 4] forms of distress. See, e.g., Smart v. Emerald City Recovery, LLC, 5|}/ No. C18-0448-JCC, 2019 WL 366205, at *2 (W.D. Wash. Jan. 30, 2019) 6]| (finding allegations that plaintiff was “embarrassed, suffered headaches, nausea, nerves, loss of concentration, insomnia and loss 8l|/of sleep, anxiety, irritability, frustration and intimidation and suffered emotionally in other ways from the distress of having a 10]}) stranger come in the middle of the night” too conclusory). 11 Here, Plaintiff testified, “I feel emotional stress because 12] I’m very worried about the adverse impact that this issue can cause 13}/me. And I feel stressful everyday because I try to resolve this 14]/ issue as soon as possible.” (Mariam Decl., Ex. 14 at 106.) 15} Plaintiff further testified that her credit report issues caused her to forego her typical midday nap or rest, and that “it’s like 17]/ you always have this thing hanging there and you can’t resolve it.” 18] (Id. at 107-108.) Plaintiff’s friend also testified that Plaintiff told her she was “really stressed,” and began taking melatonin to 201 sleep. (Mariam Decl., Ex. 15 at 34, 47. 58.) Under any standard, 21]} this evidence does not sufficiently explain the nature or circumstances of Plaintiff’s emotional distress in anything more 23]} than conclusory terms.'? Summary judgment in favor of defendants 24 eee '3 Defendants cite to cases finding plaintiff testimony 25 unacceptably conclusory. See, e.g., Costa v. Nat’l Action Fin. 26 Servs., 634 F. Supp. 2d 1069, 1078 (E.D. Cal. 2007); Bolton v. Pentagroup Fin. Servs., LLC, No. CIV-F-08-0218 AWI GS, 2009 WL 734038, at[*10] (E.D. Cal. Mar. 17, 2009). The courts in 27 those cases, however, concluded that plaintiffs claiming emotional 59 distress damages must meet state court standards for intentional (continued...)

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is therefore warranted with respect to Plaintiffs’ claim for emotional distress damages. E. Remaining Issues Raised by Plaintiff As discussed above, summary judgment is not appropriate on Plaintiff’s FDCPA, FCRA, CCRAA, and RFDCPA claims, as (1) Campus is not a debt collector under the RFDCPA and (2) triable issues remain with respect to BYL’s affirmative defenses. Nevertheless, in the alternative, Plaintiff also seeks partial summary judgment with respect to certain elements of her claims that do not overlap with Defendants’ motion. Neither Defendants’ opposition nor Plaintiff’s reply, however, makes any mention of any of these non-overlapping elements. Although there appears to be no dispute, the court has reviewed the evidence and agrees with Plaintiff that there is no triable issue as to whether (1) BYL is a furnisher of credit information under the FCRA; (2) BYL reported credit information to a credit reporting agency; (3) Plaintiff disputed the “debt” to consumer reporting agencies; (4) BYL furnished inaccurate information; (5)BYL failed to conduct a reasonable investigation of the disputed information; (6) BYL knew or should have known the information was inaccurate; (7) BYL is a “person” under the CCRA; (8) Plaintiff suffered some degree of actual damages as a result of BYL’s inaccurate reporting; (9) Plaintiff is a “consumer” and “debtor;” and (10) BYL is a “debt collector.” Plaintiff’s motion is granted with respect to these elements of her claims. IV. Conclusion

13(...continued) 27 infliction of emotional distress. The Ninth Circuit has not addressed the question, and Defendants themselves do not contend 28 that such a relatively high standard is appropriate.

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For the reasons stated above, Defendants’ and Plaintiff’s motions are both GRANTED, in part, and DENIED, in part. Summary judgment is granted in favor of Campus with respect to Plaintiff’s RFDCPA claim. Summary judgment is granted in favor of both Defendants with respect to Plaintiff’s claim for emotional distress damages. Partial summary judgment is granted to Plaintiff as to certain elements of her claims against BYL, but denied with respect to her FDCPA, FCRA, CCRAA, and RFDCPA claims more generally.

IT IS SO ORDERED. Dated: January 31, 2022 DEAN D. PREGERSON United States District Judge