1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Daniel ARAGON, Case No.: 25-cv-0264-AGS-BLM 4 Plaintiff, ORDER DISMISSING IN PART THE COMPLAINT (ECF 1), GRANTING 5 v. IN FORMA PAUPERIS MOTION 6 DZR GROUP INC., et al., (ECF 2), AND GRANTING LEAVE TO ELECTRONICALLY FILE 7 Defendants. (ECF 3) 8 9 Plaintiff Daniel Aragon’s motion to proceed without paying the initial filing fee is 10 granted. But some of his causes of action do not state a claim for relief, so those claims 11 must be dismissed. 12 IN FORMA PAUPERIS MOTION 13 Typically, parties instituting a civil action in a United States district court must 14 prepay $405 in fees, including a $350 filing fee and a $55 administrative fee. See 28 U.S.C. 15 § 1914(a); Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 16 (eff. Dec. 1, 2023). But if granted the right to proceed in forma pauperis, a plaintiff’s 17 “action may proceed despite failure to pay the filing fees.” Rodriguez v. Cook, 169 F.3d 18 1176, 1177 (9th Cir. 1999). 19 Aragon claims to have an average monthly income of $4,150.00 and one asset: a car 20 valued at $15,500. (ECF 2, at 1–3.) But his monthly expenses total $5,038.00, and his only 21 bank account has a negative balance of $171.50. (Id. at 2, 5.) Based on these facts, the 22 Court finds that Aragon has sufficiently shown an inability to pay the initial fees. See 23 Blount v. Saul, No. 21-cv-0679-BLM, 2021 WL 1561453, at *1 (S.D. Cal. Apr. 21, 2021) 24 (“It is well-settled that a party need not be completely destitute to proceed IFP.”); see also 25 Escobedo v. Applebees, 787 F.3d 1226, 1228 (9th Cir. 2015) (granting IFP motion when 26 plaintiff and his spouse earned about $1,250 per month with $2,350 in monthly expenses, 27 no savings, and additional assets totaling $256,500). 28 1 28 U.S.C. § 1915(e) SCREENING 2 A. Legal Standard 3 When reviewing an IFP motion, the court must screen the complaint and dismiss it 4 if it “fails to state a claim.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 5 1126–27 (9th Cir. 2000). “The standard for determining whether a plaintiff has failed to 6 state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 7 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. 8 Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain 9 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 10 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). 11 B. Aragon’s Allegations 12 Aragon alleges that the defendants here—a business that goes by multiple names 13 and its owners—“regularly operate as third-party debt collectors.” (ECF 1, at 3.) In January 14 2018, defendants “began calling” Aragon “in an attempt to collect a consumer debt” he 15 “allegedly owed.” (Id.) “Defendants left a voicemail” that said: 16 Do not hang up. This is not a sale solicitation. This is Riley Dugan and I’m contacting you from the Legal Department of Omni Mediation Group. Our 17 office is responsible for handling pre-legal processing and returned checks to 18 our client. Due to the laws in your state regarding bad or hot checks, it’s imperative we speak to you or the correct party as soon as possible. Please 19 press one to speak with a live representative now or contact us immediately. 20 (Id. at 3–4.) 21 Defendants left another voicemail in March 2018 that said substantially the same 22 thing, except the call was purportedly from “Omni Mediation Group and Law Offices of 23 Mary Claire.” (ECF 1, at 4.) Aragon alleges that “there is no ‘Law Offices of Mary Claire’ 24 and no attorney identified as ‘Mary Claire’ was involved.” (Id.) 25 Between 2018 and 2022, Aragon sent defendants two letters requesting that 26 defendants “cease all contact” with him and “his associates and family.” (ECF 1, at 5.) 27 28 1 Despite these letters, Aragon “has been contacted by defendants at least” 33 times “with 2 generally the same message and different pretexted phone numbers.” (Id.) 3 C. Discussion 4 Aragon brings claims under the Fair Debt Collections Practices Act, 15 U.S.C. 5 §§ 1692–1692p; the California Rosenthal Fair Debt Collections Practices Act, Cal. Civ. 6 Code §§ 1788–1788.33; and the Telephone Consumer Protection Act, 47 U.S.C. § 227. 7 (See generally ECF 1.) 8 1. Fair Debt Collections Practices Act 9 The Fair Debt Collections Practices Act “prohibits debt collectors from making false 10 or misleading representations and from engaging in various abusive and unfair practices.” 11 Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1030 (9th Cir. 2010) (quotation marks 12 omitted). “In order for a plaintiff to recover under the FDCPA, there are three threshold 13 requirements: (1) the plaintiff must be a ‘consumer’; (2) the defendant must be a ‘debt 14 collector’; and (3) the defendant must have committed some act or omission in violation 15 of the” statute. Robinson v. Managed Accts. Receivables, 654 F. Supp. 2d 1051, 1057 (C.D. 16 Cal. 2009). Aragon says he “allegedly owe[s]” a consumer debt and that defendants 17 “regularly operate as third-party debt collectors,” satisfying the first two prongs. (ECF 1, 18 at 3); see 15 U.S.C. § 1692a(3), (6) (defining “consumer” as any person “allegedly 19 obligated to pay any debt” and “debt collector” as one “who regularly collects,” directly or 20 indirectly,” “debts owed or due”). 21 As for the third prong, Aragon alleges several acts or omissions that violate the 22 FDCPA, as discussed below. Conduct under the FDCPA is judged by the 23 least-sophisticated-debtor standard: “If the least sophisticated debtor would likely be 24 misled by a communication from a debt collector, the debt collector has violated the Act.” 25 Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 934 (9th Cir. 2007). 26 a. Meaningful Disclosure 27 As to claim 1, Aragon alleges a failure to make a meaningful disclosure. (ECF 1, 28 at 8.) “A debt collector may not engage in any conduct the natural consequence of which 1 is to harass, oppress, or abuse any person in connection with the collection of a debt,” 2 including “the placement of telephone calls without meaningful disclosure of the caller’s 3 identity.” 15 U.S.C. § 1692d(6). A “meaningful disclosure” “requir[es] that the caller state 4 his or her name and capacity, and disclose enough information so as not to mislead the 5 recipient as to the purpose of the call.” Costa v. Nat’l Action Fin. Servs., 634 F. Supp. 2d 6 1069, 1074 (E.D. Cal. 2007).
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1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Daniel ARAGON, Case No.: 25-cv-0264-AGS-BLM 4 Plaintiff, ORDER DISMISSING IN PART THE COMPLAINT (ECF 1), GRANTING 5 v. IN FORMA PAUPERIS MOTION 6 DZR GROUP INC., et al., (ECF 2), AND GRANTING LEAVE TO ELECTRONICALLY FILE 7 Defendants. (ECF 3) 8 9 Plaintiff Daniel Aragon’s motion to proceed without paying the initial filing fee is 10 granted. But some of his causes of action do not state a claim for relief, so those claims 11 must be dismissed. 12 IN FORMA PAUPERIS MOTION 13 Typically, parties instituting a civil action in a United States district court must 14 prepay $405 in fees, including a $350 filing fee and a $55 administrative fee. See 28 U.S.C. 15 § 1914(a); Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 16 (eff. Dec. 1, 2023). But if granted the right to proceed in forma pauperis, a plaintiff’s 17 “action may proceed despite failure to pay the filing fees.” Rodriguez v. Cook, 169 F.3d 18 1176, 1177 (9th Cir. 1999). 19 Aragon claims to have an average monthly income of $4,150.00 and one asset: a car 20 valued at $15,500. (ECF 2, at 1–3.) But his monthly expenses total $5,038.00, and his only 21 bank account has a negative balance of $171.50. (Id. at 2, 5.) Based on these facts, the 22 Court finds that Aragon has sufficiently shown an inability to pay the initial fees. See 23 Blount v. Saul, No. 21-cv-0679-BLM, 2021 WL 1561453, at *1 (S.D. Cal. Apr. 21, 2021) 24 (“It is well-settled that a party need not be completely destitute to proceed IFP.”); see also 25 Escobedo v. Applebees, 787 F.3d 1226, 1228 (9th Cir. 2015) (granting IFP motion when 26 plaintiff and his spouse earned about $1,250 per month with $2,350 in monthly expenses, 27 no savings, and additional assets totaling $256,500). 28 1 28 U.S.C. § 1915(e) SCREENING 2 A. Legal Standard 3 When reviewing an IFP motion, the court must screen the complaint and dismiss it 4 if it “fails to state a claim.” 28 U.S.C. § 1915(e)(2)(B); Lopez v. Smith, 203 F.3d 1122, 5 1126–27 (9th Cir. 2000). “The standard for determining whether a plaintiff has failed to 6 state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the 7 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. 8 Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain 9 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 10 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). 11 B. Aragon’s Allegations 12 Aragon alleges that the defendants here—a business that goes by multiple names 13 and its owners—“regularly operate as third-party debt collectors.” (ECF 1, at 3.) In January 14 2018, defendants “began calling” Aragon “in an attempt to collect a consumer debt” he 15 “allegedly owed.” (Id.) “Defendants left a voicemail” that said: 16 Do not hang up. This is not a sale solicitation. This is Riley Dugan and I’m contacting you from the Legal Department of Omni Mediation Group. Our 17 office is responsible for handling pre-legal processing and returned checks to 18 our client. Due to the laws in your state regarding bad or hot checks, it’s imperative we speak to you or the correct party as soon as possible. Please 19 press one to speak with a live representative now or contact us immediately. 20 (Id. at 3–4.) 21 Defendants left another voicemail in March 2018 that said substantially the same 22 thing, except the call was purportedly from “Omni Mediation Group and Law Offices of 23 Mary Claire.” (ECF 1, at 4.) Aragon alleges that “there is no ‘Law Offices of Mary Claire’ 24 and no attorney identified as ‘Mary Claire’ was involved.” (Id.) 25 Between 2018 and 2022, Aragon sent defendants two letters requesting that 26 defendants “cease all contact” with him and “his associates and family.” (ECF 1, at 5.) 27 28 1 Despite these letters, Aragon “has been contacted by defendants at least” 33 times “with 2 generally the same message and different pretexted phone numbers.” (Id.) 3 C. Discussion 4 Aragon brings claims under the Fair Debt Collections Practices Act, 15 U.S.C. 5 §§ 1692–1692p; the California Rosenthal Fair Debt Collections Practices Act, Cal. Civ. 6 Code §§ 1788–1788.33; and the Telephone Consumer Protection Act, 47 U.S.C. § 227. 7 (See generally ECF 1.) 8 1. Fair Debt Collections Practices Act 9 The Fair Debt Collections Practices Act “prohibits debt collectors from making false 10 or misleading representations and from engaging in various abusive and unfair practices.” 11 Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1030 (9th Cir. 2010) (quotation marks 12 omitted). “In order for a plaintiff to recover under the FDCPA, there are three threshold 13 requirements: (1) the plaintiff must be a ‘consumer’; (2) the defendant must be a ‘debt 14 collector’; and (3) the defendant must have committed some act or omission in violation 15 of the” statute. Robinson v. Managed Accts. Receivables, 654 F. Supp. 2d 1051, 1057 (C.D. 16 Cal. 2009). Aragon says he “allegedly owe[s]” a consumer debt and that defendants 17 “regularly operate as third-party debt collectors,” satisfying the first two prongs. (ECF 1, 18 at 3); see 15 U.S.C. § 1692a(3), (6) (defining “consumer” as any person “allegedly 19 obligated to pay any debt” and “debt collector” as one “who regularly collects,” directly or 20 indirectly,” “debts owed or due”). 21 As for the third prong, Aragon alleges several acts or omissions that violate the 22 FDCPA, as discussed below. Conduct under the FDCPA is judged by the 23 least-sophisticated-debtor standard: “If the least sophisticated debtor would likely be 24 misled by a communication from a debt collector, the debt collector has violated the Act.” 25 Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 934 (9th Cir. 2007). 26 a. Meaningful Disclosure 27 As to claim 1, Aragon alleges a failure to make a meaningful disclosure. (ECF 1, 28 at 8.) “A debt collector may not engage in any conduct the natural consequence of which 1 is to harass, oppress, or abuse any person in connection with the collection of a debt,” 2 including “the placement of telephone calls without meaningful disclosure of the caller’s 3 identity.” 15 U.S.C. § 1692d(6). A “meaningful disclosure” “requir[es] that the caller state 4 his or her name and capacity, and disclose enough information so as not to mislead the 5 recipient as to the purpose of the call.” Costa v. Nat’l Action Fin. Servs., 634 F. Supp. 2d 6 1069, 1074 (E.D. Cal. 2007). 7 Here, the caller stated his or her name, that the caller was calling on behalf of “Omni 8 Mediation Group,” and that the group was “responsible for handling pre-legal processing 9 and returned checks.” (ECF 1, at 3–4.) “[T]he caller failed,” however, “to disclose he or 10 she was calling on behalf of a collection agency,” and failed “to divulge the true nature and 11 purpose of the call—that is, to collect a debt owed by” Aragon. See Costa, 634 F. Supp. 2d 12 at 1075. Thus, Aragon has adequately alleged that defendants “violated § 1692d(6) when 13 [they] failed to disclose [their] identity as a debt collector and the nature of the call.” See 14 id.; see also Hosseinzadeh v. M.R.S. Assocs., 387 F. Supp. 2d 1104, 1112 (C.D. Cal. 2005) 15 (“The Court concludes that defendant violated § 1692d(6) when its employees failed to 16 disclose defendant’s identity and the nature of defendant’s [debt-collecting] business.”); cf. 17 Hart v. Credit Control, LLC, 871 F.3d 1255, 1260 (11th Cir. 2017) (“Because the 18 individual callers here disclosed that they were calling on behalf of” “a debt collection 19 company,” plaintiff “was provided with meaningful disclosure, and thus no violation of 20 § 1629d(6) occurred.”). 21 b. Nature of the Call 22 In claim 2, Aragon charges defendants with failing to disclose the nature of the calls. 23 (ECF 1, at 9.) The FDCPA requires a debt collector to disclose in an “initial oral 24 communication” “that the debt collector is attempting to collect a debt and that any 25 information obtained will be used for that purpose.” 15 U.S.C § 1692e(11). Since 26 defendants did not disclose that they were a debt collector in their initial message, this 27 claim also survives screening. See Costa, 634 F. Supp. 2d at 1076 (“In the present case, it 28 is undisputed the messages left on plaintiff’s voice mail did not disclose the caller’s identity 1 (beyond stating her name as Elizabeth) or the nature of the call. Thus, defendant violated 2 § 1692e(11) because the messages left for plaintiff did not convey the required 3 information.” (citations omitted)). 4 c. Continuing Collection Without Validation 5 Claims 3 and 8 both allege that the defendants continued to collect debt without 6 validation. (ECF 9, 12.) “Within five days after the initial communication with a consumer 7 in connection with the collection of any debt, a debt collector shall . . . send the consumer 8 a written notice containing” certain information pertaining to the debt. 15 U.S.C. 9 § 1692g(a). This written notice is referred to as a “validation notice.” Riggs v. Prober & 10 Raphael, 681 F.3d 1097, 1099 (9th Cir. 2012). In claim 3, Aragon alleges that defendants 11 “fail[ed] to send Plaintiff the requisite debt validation information within” 5 days “of their 12 initial communication.” (ECF 1, at 9.) So, this initial validation-notice claim survives 13 screening. 14 In claim 8, Aragon also contends that defendants violated this section because they 15 “did not validate the alleged debt when lawful written request was made” to the defendants. 16 (ECF 1, at 12.) “If the consumer notifies the debt collector in writing within” 30 days of 17 the initial communication “that the debt, or any portion thereof, is disputed, or that the 18 consumer requests the name and address of the original creditor,” the debt collector must 19 verify the debt. 15 U.S.C. § 1692g(b). But Aragon’s letters to defendants only requested 20 that they “cease all contact” with Aragon and with “his associates and family.” (ECF 1, 21 at 5; see also id. (describing a second letter asking defendants “to cease and desist contact 22 in the same manner that was asked in the previous letter”).) Aragon does not allege that he 23 notified defendants in writing that his debt was disputed, nor that he requested a name or 24 address in writing within 30 days after the first call. So Aragon’s second validation-notice 25 claim (claim 8) is dismissed. See McMillan v. Bank of Am., N.A., No. 14CV1575-MMA 26 BLM, 2015 WL 1942743, at *13 (S.D. Cal. Apr. 15, 2015) (dismissing because “Plaintiffs 27 fail to allege that notification of the dispute was made in writing, or within the thirty-day 28 period after receipt of the initial communication”). 1 d. Misrepresentation 2 In claim 4, Aragon alleges misrepresentation. (ECF 1, at 9.) “A debt collector may 3 not use any false, deceptive, or misleading representation or means in connection with the 4 collection of any debt.” 15 U.S.C. § 1692e. This includes the “false representation or 5 implication that any individual is an attorney or that any communication is from an 6 attorney.” Id. § 1692e(3). Aragon says that the caller represented being from the “Law 7 Offices of Mary Claire,” but such an office doesn’t exist and “no attorney identified as 8 ‘Mary Claire’ was involved.” (ECF 1, at 4.) Based on this representation, the “least 9 sophisticated debtor” would certainly believe that “Mary Claire” is an attorney. And if, as 10 Aragon alleges, Mary Claire does not an exist or is not an attorney, then such a 11 representation is false. So Aragon’s misrepresentation claim may proceed. 12 e. Harassment 13 Finally, in claim 10 Aragon brings a general “harassment” cause of action. (ECF 1, 14 at 13.) Aragon alleges that defendants violated the FDCPA “by ignoring the cease and 15 desist letter” and “continuing their harassment” or Aragon. (ECF 1, at 13.) “[A] debt 16 collector may harass a debtor” in violation of the FDCPA “by continuing to call the debtor 17 after the debtor has requested that the debt collector cease and desist communication.” 18 Johnson v. Portfolio Recovery Assocs., No. CV 12 - 4261 PSG, 2013 WL 10156241, at *7 19 (C.D. Cal. June 24, 2013); 15 U.S.C. § 1692d (“A debt collector may not engage in any 20 conduct the natural consequence of which is to harass, oppress, or abuse any person in 21 connection with the collection of a debt.”). Aragon sufficiently pleads harassment under 22 the FDCPA. 23 2. Rosenthal Act 24 Aragon sues under California’s Fair Debt Collection Practices Act, or Rosenthal Act, 25 including causes of action for misrepresentation (claim 6), failure to validate debt following 26 written request (claim 7), and harassment (claim 10). California’s law “mimics or 27 incorporates by reference the FDCPA’s requirements” and “makes available the FDCPA’s 28 remedies for violations.” Riggs, 681 F.3d at 1100; see also Cal. Civ. Code § 1788.17 1 (“Notwithstanding any other provision of this title, every debt collector collecting or 2 attempting to collect a consumer debt shall comply with the provisions of [the FDCPA], 3 inclusive, of, and shall be subject to the [FDCPA] remedies[.]”). So whether an act violates 4 California law “turns on whether it violates the FDCPA.” Riggs, 681 F.3d at 1100. Thus, 5 for the reasons stated above, all of Aragon’s California claims survive except for the debt- 6 verification claim (claim 7). See Cal. Civ. Code § 1788.52(c) (“A debt buyer shall provide” 7 debt-verification information “within 15 calendar days of receipt of a debtor’s written 8 request for information regarding the debt or proof of the debt.”). 9 3. Telephone Consumer Protection Act 10 Finally, Aragon claims defendants violated the Telephone Consumer Protection Act 11 by using “an artificial or prerecorded voice to deliver a message without” consent (claim 5) 12 and by “transmit[ting] misleading or inaccurate caller identification information with the 13 intent to defraud, cause harm, or wrongfully obtain anything of value” (claim 9). (ECF 1, 14 at 10, 12.) As to the former, Aragon adequately pleads that defendants used an artificial or 15 prerecorded voice as evidenced by the message’s instruction to “press one to speak with a 16 live representative.” (ECF 1, at 4); see also Davis v. Rockloans Marketplace, LLC, No. 17 23-2593, 2024 WL 4345293, at *1 (9th Cir. Sept. 30, 2024) (“[A] plaintiff may state a 18 TCPA claim by alleging the use of an artificial or prerecorded voice.”). As for the latter, 19 Aragon says that defendants “use either anonymous phone numbers or they use phone 20 numbers that either do not belong to them or do belong to them but are spoofed” “to show 21 a different area code from that of the defendants” to “defraud” him. (ECF 1, at 5–6, 10.) 22 This is enough to survive at this stage. See United States v. Rhodes, No. CV 21-110-M- 23 DLC-KLD, 2022 WL 2466796, at *7 (D. Mont. Apr. 1, 2022) (finding the plaintiff “alleged 24 facts demonstrating that [defendant] knowingly caused a caller identification service to 25 transmit misleading or inaccurate caller ID information” when the defendant used “caller 26 IDs that matched the area code of the call’s recipient rather than his own”), report and 27 recommendation adopted, No. CV 21-110-M-DLC, 2022 WL 17484847 (D. Mont. Dec. 7, 28 2022). I CONCLUSION 2 Aragon’s motion to proceed in forma pauperis is GRANTED. Aragon’s 3 || debt-verification causes of action (claims 7 and 8) are DISMISSED with leave to amend. 4 ||See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not 5 dismiss a pro se complaint without leave to amend unless it is absolutely clear that the 6 deficiencies of the complaint could not be cured by amendment.” (quotation marks 7 omitted)). All other claims survive screening. Any amended complaint must be filed by 8 || May 8, 2025. 9 Since Aragon represents that he has the proper equipment to file electronically, and 10 he agrees to follow all rules and policies in the CM/ECF Administrative Policies and 11 || Procedures Manual (see ECF 3), the motion for leave to file electronically is GRANTED. 12 ||Dated: April 10, 2025 13 a | 14 Hon. rew G. Schopler United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28