Free Motion to Dismiss - District Court of California - California

Case 3:08-cv-00853-IEG-AJB

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Harvey M. Moore, Bar No. 101128
The Moore Law Group,
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A Professional Corporation
3710 S. Susan St., Ste 210
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P.O. Box 25145
Santa Ana, CA 92799-5145
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(800) 506-2652
5 Attorneys for Defendant SALLIE MAE, INC. 6


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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

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vs.
ANNISA MAYER,
Plaintiff,
Case No. 08 CV 0853IEG A.TB MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT SALLIE MAE, INC.'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT FOR DAMAGES PURSUANT TO FED. R. CIV. P. 12(b)(6) [NO ORAL ARGUMENT PURSUANT TO
LOCAL RULE]


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SALLIE MAE,
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Defendant.


Hearing Date: October 14, 2008
Time: 10:30 a.m.
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Courtroom: 1
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Memorandum of Points & Authorities

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TABLE OF CONTENTS


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MEMORANDUM OF POINTS AND AUTHORITIES..................... 1. Introduction Procedural History Law and Argument

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a.

Standard of Review......

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b.

Count I for Violations of the FDCPA Does Not State a Claim upon Which
Relief Can Be Granted and Must Be Dismissed Because Defendant Sallie
Mae is Not a "Debt Collector" Within the Meaning of the FDCPA ..... 6
Count II for Violations of the California Rosenthal Act Fails to State a
Claim upon Which Relief Can Be Granted and Must Be Dismissed Because
the Facts Alleged to Give Rise to Count II are Absolutely Privileged
Pursuant to California Civil Code § 47(b) 8
Sallie Mae Cannot be liable for Violations of the California Rosenthal Act
for Pursing the Action in Los Angeles County because (1) Plaintiff Resided
in Los Angeles County at the Time the Loans Were Made and (2) the Loans
Were Made in Los Angeles County 11
, .. . .. . 13


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c.

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d.

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Conclusion

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TABLE OF AUTHORITIES
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Cases:

Bell Atlantic Corp. v. Twonbly, 127 S.O. 1955, 1965 (2007) Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996)

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5
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7 Coppola v. Connecticut Student Loan Foundation, Case No. N-87-398 (lAC). 1989 U.S. Dist. LEXIS 3415, *6-*7 (D. Conn. 1989) 8 Fischer v. Unipac Servo Corp. and Student Loan Mktg. Ass'n, 519 N.W.2d 793, 799-800 (Iowa 1994) 9 10 Hal Roach Studios, Inc. (9th Cir. 1990) 11 12 Jones
V. V.

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7,8

Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n. 19
6 7,8 6 6 11 7,8 11 10 9,10,11

InTuition, Inc., 12 F. Supp. 2d 775, 779 (W.D. Tenn. 1998)

13 Love v. United States, 915 F.2d 1242,1245 (9th Cir. 1989)
14 Mier 15 16
V.

Owens, 57 F.3d 747. 750 (9th Cir. 1995)

NickolojJv. Wolpojj & Abramson, 511 F. Supp. 2d 1043 (C.D. Cal. 2007) Pelfrey V. Educ. Credit Mgmt. Corp., 71 F. Supp. 2d 1161, 1170 (N.D. Ala. 1999)

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Reyes V. Kenosian & Miele, LLP, 525 F.Supp.2d 1158 (N.D.Ca1.2007)
V.

19 Rubin

Green 4 Cal.4 th 1187, 1193, 17 Cal.Rptr.2d 828, 847 P.2d 1044 (1993)
V.

20 Ruslleen

Cohen, 37 Ca1.4th 1048,128 P.3d 713,39 Cal.RptrJd 516 (2006)

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21 Sengcltantltalangsy V. Accelerated Recovery Specialists, Inc., 473 F. Supp. 2d 1083 (S.D. Cal. 2006)

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23 Silberg V. Anderson, 50 Ca1.3d 205, 215 (1990) 24 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) 25 Taylor v. Quail, 458 F. Supp. 2d 1065, 1067 - 68 (C.D. Cal. 2006)
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Van Buskirk V. Cable News Network, Inc., 284 FJd 977, 980 (9th Cir. 2002)

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Statutes & Rules: 2 Federal
3 15 U.S.C. § 1692 15 U.S.C. § 1692a(6) , .,. 6 2, 7 7

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15 U.S.C. § 1692a(6)(F)(iii)........................................................... .......

7 State
8 Cal.Civ.Code § 47(b) 9 Cal.Civ.Code §47(2) 10 CaI.Civ.Code§1788.15(b) 11 12 Cal. Bus.& Prof. Code § 17200 13 14 11 Cal.Civ.Code § 1788.2(b) '" 4, 9, 10 10 12 2

Rules
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15 Federal Rules of Civil Procedure, § 4(d) 16 Federal Rules of Civil Procedure, § 12(b) 17 Federal Rules of Civil Procedure, § 12(b)(6) 18 19 20 21 22 23 24 25 26 27 28
iii

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Legislative Historyrrreatises
S.Rep. No. 95-382, 95 th Cong., 1st Sess. 3-4, reprinted in 1977 U.S.Code Congo and Ad. Ne\vs 1695, 1698 5 Witkin, Summary of Cal. Law, Torts, §§ 470, 505, pp. 554, 59................. .....

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Defendant, Sallie Mae, Inc. ("Sallie Mae"), submits this memorandum of points and 2
authorities in support ofits Motion to Dismiss Plaintiff Annisa Mayer's ("Mayer") Complaint for Damages:

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1.

INTRODUCTION

This matter arises out of the alleged acts, errors and omissions of Defendant Sallie Mae's
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attorneys in connection with the filling, serving and prosecution of an action to collect a debt

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owed by Plainti±IMayer to Defendant Sallie Mae on her defaulted student loans which

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Defendant Sallie Mae had been servicing since their inception. Plaintiff Mayer alleges two Counts against Defendant Sallie Mae: Count I for Violations of the Fair Debt Collection Practices Act ("FDCPA") and Count II for Violations of the California Rosenthal Fair Debt Collections Practices Act ("California Rosenthal Act").

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The relevant factual allegations are found on pages 3 through 7 of the Complaint as
follows:
· Plaintiff Mayer is informed and believes that Defendant Sallie Mae is a "debt collector" as that term is defined by the FDCPA, 15 U.S.C. § 1692a(6). (Complaint, paragraph 12). · Plaintiff Mayer is informed and believes that Defendant Sallie Mae is a "debt collector"

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as that term is defined by the California Rosenthal Act, Civil Code § 1788.2(b). (Complaint, paragraph 13). · Sometime before June 20, 2006, Plaintiff Mayer allegedly incurred financial obligations to Defendant Sallie Mae that were a debt as defined by the California Rosenthal Act and a consumer debt as defined under the FDCPA. (Complaint, paragraph 17). · Sometime prior to June 20, 2006, Plaintiff Mayer allegedly fell behind in the payment of

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her obligations to Defendant Sallie Mae. (Complaint, paragraph 19).

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Sometime prior to June 20, 2006, the alleged debt was assigned, placed or otherwise transferred for collection. (Complaint, paragraph 20).

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On or about June 20,2006, Defendant Sallie Mae, through the law finn Eltman, Eltman

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& Cooper, filed suit against Plaintiff Mayer for the alleged debt. (Complaint, paragraph

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· The lawsuit was filed in Los Angeles County even though Defendant Sallie Mae was aware that Plaintiff Mayer lived in San Diego and that no contract was entered into in Los Angeles County. (Complaint, paragraph 22). · By bringing the action in Los Angeles County, Defendant Sallie Mae violated the
FDCPA and the California Rosenthal Act. (Complaint, Paragraphs 23, 24 and 31).
· On August 1, 2006, Defendant Sallie Mae filed a Proof of Service of Summons which indicated service on Plaintiff Mayer by substituted service at Plaintiff Mayer's father's home, at an address where Plaintiff Mayer had not lived since 1986. Plaintiff Mayer's father claims that he was not, in fact served at all, but that even if Plaintiff Mayer's father had been served, it would not have been proper service on Plaintiff Mayer. (Complaint, paragraph 25). · The first time Plaintiff Mayer had knowledge of the lawsuit was late September 2006 while visiting her father, when she saw a letter addressed to her indicating a "Request for Entry of Default" had been filed. (Complaint, paragraph 26). · In sending the letter to an address other than where Plaintiff Mayer resided, Defendant Sallie Mae violated the FDCPA and California Rosenthal Act. (Complaint, paragraphs 27 and 28). · Defendant Sallie Mae then obtained a default judgment against Plaintiff Mayer.
(Complaint, paragraph 29).


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· In obtaining the default judgment, Defendant Sallie Mae violated the FDCPA and
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California Rosenthal Act. (Complaint, paragraph 30, 33 and 34).
· Plaintiff Mayer then hired a lawyer to set aside the default and default judgment and
quash service of the summons. The default and default judgment were set aside and the


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service of summons quashed because Defendant Sallie Mae's attorneys did not respond
in writing or appear at the hearing on the motions. Plaintiff Mayer then was able to have
the case dismissed because Defendant Sallie Mae's attorneys failed to appear at two
additional hearings. (Complaint, paragraphs 35, 36 and 37).
· Because of the actions of Defendant Sallie Mae's attorneys, it is clear that Defendant
Sallie Mae had no intention to properly litigate the action, thereby violating the FDCPA
and California Rosenthal Act. (Complaint, paragraph 38 and 39),


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· The acts of Defendant Sallie Mae caused Plaintiff Mayer substantial damages
(Complaint, paragraph 40).


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Even assuming, arguendo, that all of the allegations contained in Plaintiff Mayer's Complaint were true, the Complaint, and specifically each claim for relief contained therein alleged against Defendant Sallie Mae, must be dismissed because (l) Plaintiff Mayer has failed to

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establish that Defendant Sallie Mae is a "debt collector" within the meaning of the FDCPA, (2) 22
Defendant Sallie Mae's litigation-related "conduct" is absolutely privileged pursuant to Cal. Civ. 23
Code §47(b), and (3) Count II fails to state a claim upon which relief can be granted because 24
Plaintiff resided in Los Angeles County at the time the Loans were made and the Loans were 25 made in Los Angeles County.

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II.

PROCEDURAL HISTORY

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On or about May 13,2008, PlaintiffMayer filed her Complaint for Damages in the Southern District Court of California entitled Annisa AJayer v. Sallie Mae, which was assigned Case No. 08 CV 0853IEG AJB.

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The Complaint was served on Defendant Sallie Mae via U.S. Mail on or about June 26,

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2008 pursuant to Fed.R.Civ.P. 4(d), which included a request for waiver of service of summons.
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Defendant Sallie Mae's responsive pleading is therefore due August 25, 2008. 13
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On or about July 18, 2008, Defendant Sallie Mae's counsel executed and returned the waiver to Plaintiff Mayer's counsel.

III.

LAW AND ARGUMENT SUMMARY

A. Standard of Review
Fed.R.Civ.P. 12(b) provides that, "Every defense to a claim for relief in any pleading
must be asserted in the responsive pleading if one is required. But a party may assert the
following defenses by motion:


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(6)

failure to state a claim upon which relief can be granted"

A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint.

Under Rule 12(b)(6), a "complaint should not be dismissed unless it appears beyond doubt that Plaintiff can prove no set of facts in support of his claim which would entitle him to

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relief. Van Buskirkv. Cable News Netv.'ork, Inc., 284 F.3d 977, 980 (9th Cir. 2002) (citing


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Rabang v. INS, 35 F.3d 1449, 1451 (9th Cir. 1994)); see also Sprewell v. Golden State

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Warriors, 266 F.3d 979,988 (9th Cir. 2001); Love v. United States, 915 F.2d 1242, 1245 (9th
Cir. 1989).


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In deciding whether this standard is satisfied, the court generally looks only to the face of
the complaint and documents attached thereto. Van Buskirk, 284 F.3d at 980; Hal Roach
Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990). The
court must accept all factual allegations pleaded in the complaint as true and construe them and
draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty
Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir.


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1995). It need not, however, accept as true unreasonable inferences or conclusory legal
allegations cast in the form of factual allegations. See Bell Atlantic Corp. v. Twonbly, 127 S.Ct.
1955,1965 (2007)("While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiffs obligation to provide the 'grounds' of his
'entitlement' to relief requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do. Factual allegations must be enough to raise a right
to relief above the speculative level, on the assumption that all the allegations in the complaint


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are true (even if doubtful in fact)"(citations omitted).


B. Count I for Violations of the FDCPA Does Not State a Claim upon Which Relief Can Be Granted and Must Be Dismissed Because Defendant Sallie Mae is Not a "Debt Collector" Within the Meaning of the FDCPA.

A limited private right of action exists for violations of the provisions of 15 U.S.C. § 1692; et seq. ("the FDCPA") by a "debt collector" as defined by the FDCPA. Before a consumer such as Plaintiff Mayer may sue for violations of the FDCPA, she must first establish that the

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defendant is a "debt collector" within the meaning of the FDCPA.

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Pursuant to the FDCPA, a "debt collector" is a person whose "principal [business]
purpose is the collection of any debts, or who regularly collects or attempts to collect, directly or
indirectly, debts owned or due or asserted to be due owed or due another." (§ 1692(a) (6)). The

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term "debt collector" does not include "any person collecting or attempting to collect any
debt owed or due or asserted to be owed or due to another to the extent such activity concerns a debt which was not in default at the time it was obtained by such person
U.S,C. § 1692a(6)(F)(iii) (emphasis added). The legislative history of the Act indicates that
Congress intended that parties who service debts not in default when obtained (such as
mortgages and student loans) should be excluded from the Act's coverage. S,Rep. No. 95-382,


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95 Cong., 1st Sess. 3-4, reprinted in 1977 U.S,Code Congo And Ad. News 1695, 1698. In
addition, courts have held that defendants who began servicing student loans before such loans
were in default are not "debt collectors" within the meaning of the FDCPA. See Pelfrey v. Educ.


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Credit Mgmt. Corp., 71 F. Supp. 2d 1161,1170 (N,D. Ala. 1999)(reviewing case law and noting

that student loan servicers are not subject to the FDCPA if they began servicing the student loan
before the borrower defaulted); Jones v. InTuition, Inc., 12 F. Supp. 2d 775, 779 (W.D. Tenn.
1998)(holding that defendant was not a "debt collector" as defined by the FDCPA since the


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loans or their servicing companies are not the kind of activity that Congress intended to regulate
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defendant began servicing the student loan at issue before the loan was in default); Coppola
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Connecticut Student Loan Foundation, Case No, N-87-398 (JAC), 1989 U.S. Dist. LEXIS 3415,

*6-*7 (D, Conn. 1989)(holding that student loan servicer was excluded from the FDCPA's
definition of "debt collector"); Fischer v. Unipac Servo Corp. and Student Loan Mktg. Ass 'n, 519
N. W.2d 793, 799-800 (Iowa 1994)(Collection efforts by holders of federally insured student


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in enacting Federal Fair Debt Collection Practices Act).

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In the present case, Plaintiff Mayer must plead the facts necessary to establish that Defendant Sallie Mae is a "debt collector" within the meaning of the FDCP A. Although Plaintiff Mayer alleges on information and belief that Defendant Sallie Mae is a "debt collector,"

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14 15 16 17 18 19 20 N.W.2d at 799-800. 21 22 23 24 25 26 27 28 Because Defendant Sallie Mae is not a "debt collector" within the meaning ofthe FDCPA, Plaintiff Mayer cannot maintain a claim against Sallie Mae for violation of the FDCP A. Therefore, this Court must grant Defendant Sallie Mae's Motion to Dismiss Count I of Plaintiff Mayer's Complaint. As a servicer who began servicing Plaintiff's student loans before such loans were in default, defendant Sallie Mae is not a "debt collector" as defined by the FDCP A. See Peffrey v.

Educ. Credit Mgmt. Corp., 71 F. Supp. 2d at 1170; Jones v. InTuition, Inc.. 12 F. Supp. 2d at 779); Coppola v. Connecticut Student Loan Foundation, Case No. N-87-398 (JAC), 1989 U.S.
Dist. LEXIS 3415, *6-*7; Fischer v. Unipac Servo Corp. and Student Loan Mktg. Ass 'n, 519

C. Count II for Violations of the California Rosenthal Act Fails to State a Claim
I Plaintiff knows who has serviced these loans from their inception and certainly before she defaulted on the loans and should have shared that inforn1ation with her attorneys.

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upon Which Relief Can Be Granted and Must Be Dismissed Because the Facts Alleged to Give Rise to Count II are Absolutely Privileged Pursuant to California Civil Code § 47(b).
Plaintiff Mayer's Count II alleges that Defendant Sallie Mae violated the California Rosenthal Act when: Defendant Sallie Mae's attorneys tiled suit against Plaintiff Mayer for the alleged debt in Los Angeles County, while Plaintiff Mayer lived in San Diego; Defendant Sallie

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Mae's attorneys served Plaintiff by substitute service at Plaintiff's father's home, an address where Plaintiff allegedly had not lived since 1986; Defendant Sallie Mae's attorneys sent letters to the service address informing her that a "Request for Entry of Default" had been filed; Defendant Sallie Mae's attorneys obtained a default judgment against Plaintiff Mayer despite allegedly improperly serving Plaintiff; and, Defendant Sallie Mae's attorneys failed to litigate the case by failing to appear and respond to Plaintiff's motions to vacate the default and default

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judgment and to quash service of the summons, as well as by not appearing at two additional 14 15 16 17 18 19 20 all communications made during a judicial proceeding. Silberg v. Anderson, 50 Ca1.3d 205, 215 21 22 23 24 25 26 27 28 "Although originally enacted with reference to defamation [citation], the privilege is now held applicable to any communication, whether or not it (1990). And, if the gravamen of the action is communicative, the litigation privilege extends to noncommunicative acts that are necessarily related to the communicative conduct. Rusheen, 37 Cal.4th 1048, 1065. "Stated another way, unless it is demonstrated that an independent, noncommunicative, wrongful act was the gravamen of the action, the litigation privilege applies." Id. hearings. Regardless of the truthfulness of such allegations, Plaintiff's California Rosenthal Act claims are absolutely barred by the California litigation privilege, Cal. Civ. Code § 47(b). The California litigation privilege of Cal. Civ. Code § 47(b) is absolute in nature and includes all of the alleged actions of Sallie Mae in the Complaint. Rusheen v. Cohen, 37 Cal.4th 1048,128 P.3d 713, 39 Cal.Rptr.3d 516 (2006). It is clear that the litigation privilege applies to

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amounts to a publication [citations], and all torts except malicious prosecution. [Citations.] Further, it applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved. [Citations.] [,;] The usual formulation is that the privilege applies to any communication (l) 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. [Citations.]" (Silherg v. Anderson (1990) 50 Ca1.3d 205, 212, 266 Cal.Rptr. 638, 786 P.2d 365 (Silberg).) Thus, "communications with 'some relation' to judicial proceedings" are "absolutely immune from tort liability" by the litigation privilege (Rubin v. Green (1993) 4 Ca1.4 th 1187, 1193, 17 Cal.Rptr.2d 828, 847 P.2d 1044 (Rubin)). It is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards. (5 Witkin, Summary of Cal. Law, supra, Torts, §§ 470, 505, pp. 554, 591.) (Emphasis added) ld. at 1057. In Rusheen, the Court's focus was what the gravamen of the action was. ld. .. , Thus, where the gravamen of the complaint is a privileged communication (i.e., allegedly perjured declarations of service) the privilege extends to necessarily related noncommunicative acts (i.e., act of levying). ld. at 1062. Extending the litigation privilege to postjudgment enforcement activities that are necessarily related to the allegedly wrongful communicative act is consistent with public policy considerations. The purposes of section 47, subdivision (b), are to afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort 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 ( Silberg, supra, 50 Ca1.3d at pp. 213-214, 266 Cal.Rptr. 638, 786 P.2d 365.) To effectuate these purposes, the litigation privilege is absolute and applies regardless of malice. (ld. at pp. 215-216, 266 Cal.Rptr. 638, 786 P.2d 365.) Moreover, "[i]n furtherance of the public policy purposes it is designed to serve, the privilege prescribed by section 47(2) has been given broad application." (ld. at p. 211, 266 Cal.Rptr. 638, 786 P.2d 365.)

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Idat 1062-3.
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In addition to communicative acts in judicial proceedings 2, the privilege "applies to any

2 publication required or permitted by law in the course of a judicial proceeding to achieve the 3 objects of the litigation, even though the publication is made outside the courtroom and no

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function of the court or its officers is involved." ld. at 212.

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Count II is solely based on the alleged acts of Sallie Mae's attorneys in connection with the filing, serving and prosecution of the collection action, which are either communicative acts or non-communicative acts necessarily related to the communicative conduct, and which are necessarily related to the filing, service and prosecution of the underlying state court action. As Plaintiff cannot demonstrate that an independent, noncommunicative, wrongful act is the gravamen of Count II, the litigation privilege bars Plaintiff s state law claims and this Court must

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grant Defendant Sallie Mae's Motion to Dismiss Count II of Plaintiff Mayer's Complaint.

D. Sallie Mae Cannot be liable for Violations of the California Rosenthal Act for Pursing the Action in Los Angeles County because (1) Plaintiff Resided in Los Angeles County at the Time the Loans Were Made and (2) the Loans Were Made in Los Angeles County.

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21 Los Angeles County at the time the Loans were made and the Loans were made in Los Angeles 22 23 24 25 26 27 28 California courts have consistently applied the litigation privilege to bar state law claims based upon communications occurring in connection with collection actions. See, e.g. Reyes v. Kenosian & Miele, LLP, 525 F.Supp.2d 1158 (N.D.Cal.2007) (Rosenthal Act claims based on allegations in collection complaint barred by litigation privilege); NickolojJ v. WolpojJ & Abramson, 511 F. Supp. 2d 1043 (C.D. Cal. 2007) (privilege barred Rosenthal Act claim based on evidence proffered during arbitration proceeding); Sengchanthalangsy v. Accelerated Recovery Specialists, Inc., 473 F. Supp. 2d 1083 (S.D. Cal. 2006) (privilege barred claims for fraud, negligence and violations of Cal. Bus. & Prof. Code § 17200 based upon allegedly false affidavit used in connection with collection action); Taylor v. Quall, 458 F. Supp. 2d 1065, 1067 68 (C.D. Cal. 2006) (privilege barred Rosenthal Act claim and § 17200 claim based upon allegedly false statements made in connection with collection litigation).
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County.

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The crux of Plaintiff's Count II for violations ofthe California Rosenthal Act appears to be
that the underlying collection complaint was filed and prosecuted in the wrong county when it was


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filed and prosecuted in Los Angeles County_ (Complaint, Paragraphs 22,23, 24 and 31.)
3


6

7
8
Cal.Civ.Code Code § 1788.15(b) provides that it is a violation of the California Rosenthal

9
Act to collect through a judicial proceeding in a county other than the county in which the
10 debtor incurred the consumer debt or the county in which the debtor resides at the time such 11
12
13
However, at the time Plaintiff executed the three promissory notes that were placed for
14
15 collection with Eltman, Eltman & Cooper, Plaintiff attended UCLA and listed Los Angeles county
16
on at least one of the three promissory notes in question. (See Austin Declaration, paragraphs 7
17
and 8 and Exhibit A attached thereto. In addition, all the loans obtained by Plaintiff, pursuant to
18
Plaintiff's own instructions, were disbursed to the University of California at Los Angeles, which
19
20 21
is located in Los Angeles County, California.
proceedings are instituted, or resided a the time the debt was incurred.

22


Thus Plaintiff has not alleged, and cannot allege, facts sufficient to support a claim for

23
violation of the California Rosenthal Act. 24
25 26

3 The other acts alleged in the Complaint are clearly communicative or non-communicative conduct necessarily related to the filing, service and prosecution of the underlying state court 28
action.

Because the basis of Plaintiff's Count II, is the filing of a lawsuit in the wrong county,

27


Memorandum of Points & Authorities

12

Case No. 08 CV 0853IEG AJB

Case 3:08-cv-00853-IEG-AJB

Document 4-2

Filed 08/04/2008

Page 16 of 16

1 Count II fails to state a claim upon which relief can be granted because the debt was incurred in 2 Los Angeles County and/or Plaintiff resided in Los Angeles County at the time the debt was
3

incurred. Accordingly, Plaintiffs Count II should be dismissed.

4

5
III.
6

CONCLUSION

7

As Plaintiff Mayer has failed to state facts sufficient to state claims for relief under either

8 the FDCPA or the California Rosenthal Act, this Court must grant Defendant Sallie Mae's 9 Motion to Dismiss Plaintiff Mayer's Complaint. 10 11 12
13 14

Dated: August 4, 2008

The Moore Law Group. APC

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7'
.,'

By: H

ey M. Moore

, tlomey for Defendant

15
16 17

18
19

20 21 22
23

24
25 26

27 28

Memorandum of Points & Authorities

13

Case No. 08 CY 0853IEG AJB