De Alba v. Velocity Investments, LLC

• Court: District Court, S.D. California
• Decided: August 16, 2024
• Docket: 3:21-cv-00547
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROCIO DE ALBA, Case No.: 21-cv-547-AJB-MMP

12 Plaintiff, ORDER: 13 v. (1) DENYING VELOCITY 14 INVESTMENTS, LLC’S MOTION 15 VELOCITY INVESTMENTS, LLC. and FOR SUMMARY JUDGMENT; and MANDARICH LAW FIRM, LLP, 16 (2) GRANTING IN PART AND 17 Defendants. DENYING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY 18 JUDGMENT 19 (Doc. Nos. 53, 57) 20 21 22

23 Before the Court are two motions—a motion for summary judgment filed by 24 Velocity Investments, LLC (“Velocity”) and a motion for partial summary judgment filed 25 by Rocio De Alba (“Plaintiff”). (Doc. Nos. 53, 57.) The motions are fully briefed. (Doc. 26 Nos. 58, 59.) For the reasons set forth below, the Court DENIES Velocity’s motion and 27 GRANTS IN PART and DENIES IN PART Plaintiff’s motion. 1 I. BACKGROUND 2 This action arises from an attempt to collect a debt on a loan Plaintiff obtained and 3 defaulted on, and which Velocity later purchased. Velocity referred Plaintiff’s matter to its 4 attorney, Mandarich Law Group, LLP’s (“MLG” or “Mandarich”), to collect the debt.1 5 (Doc. No. 53-2 at 5.)2 On behalf Velocity, MLG filed a complaint against Plaintiff in the 6 San Diego Superior Court on October 13, 2020, in the matter of Velocity Investments, LLC 7 v. Rocio De Alba, et al., case number 37-2020-00036433-CL-CL-CTL (“Collection 8 Complaint”). (Id.; Doc. No. 5 at 4.) On December 7, 2020, Plaintiff’s counsel filed an 9 Answer with the Superior Court and mailed a copy to MLG. (Doc. No. 5 at 4.) According 10 to MLG, it did not receive actual notice of the Answer until June 7, 2021, because Plaintiff 11 did not mail the Answer to the appropriate P.O. Box, which was listed on the caption of 12 the Collection Complaint. (Doc. No. 53-2 at 5–6.) 13 Believing Plaintiff had not responded to the Collection Complaint, MLG filed in 14 March 2021, a Request for Entry of Default and Judgment with the Superior Court. (Id. at 15 6.) MLG thereafter mailed Plaintiff a copy of the default package along with a cover letter 16 stating that she failed to respond to the collection lawsuit and that MLG was seeking a 17 default judgment against her. (Id.) The letter also stated: “Although we can no longer 18 guarantee that judgment will not be entered against you, there is still time to contact us to 19 work out an arrangement for payment on the remaining balance.” (Doc. No. 29-3 at 5.) 20 According to Plaintiff, she opened MLG’s letter, panicked, called the number on it, 21 spoke with a MLG employee, and set up a payment plan. Plaintiff claims that “Mandarich 22 should never have contacted a represented party, should never have filed a Request for 23 Entry of Default and Judgment on a case where an answer was on file, and certainly should 24

25 1 The parties’ briefs indicate that the correct name of the law firm defendant is Mandarich Law Group, LLP, and not Mandarich Law Firm, LLP, as named in the Complaint and First Amended Complaint. There 26 being no dispute as to this correction, the Court considers the former the appropriate name.

27 1 not have taken advantage of the confusion they caused by making false statements to 2 extract bank account information from Ms. De Alba.” (Doc. No. 5 at 5.) 3 Plaintiff filed suit against Defendants in federal court, alleging that MLG violated 4 the federal Fair Debt Collection Practices Act (“FDCPA”), and that both MLG and 5 Velocity violated the California Fair Debt Collection Practices Act (“Rosenthal Act”), 6 which incorporates several provisions of the FDCPA. 3 (Id. at 1, 6, 7.) 7 Defendants later filed a special motion to strike pursuant to California’s anti-SLAPP 8 statute, (Doc. No. 27), which the Court granted in part and denied in part, dismissing with 9 prejudice Plaintiff’s Rosenthal Act claim based on § 1692(c)(2)(A) of the FDCPA and 10 sustaining the remaining state claims based on §§ 1692e, 1692d, and 1692f of the FDCPA. 11 (Doc. No. 49 at 11.) The instant Order on Velocity’s motion for summary judgment and 12 Plaintiff’s motion for partial summary judgment follows. 13 II. LEGAL STANDARD 14 Summary judgment is appropriate under Federal Rule of Civil Procedure 56 if the 15 moving party demonstrates the absence of a genuine issue of material fact and entitlement 16 to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).4 A fact 17 is material when, under the governing substantive law, it could affect the outcome of the 18 case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if 19 the evidence is such that a reasonable jury could return a verdict for the nonmoving 20 party. Id. The party seeking summary judgment bears the initial burden of establishing the 21 absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Once the 22 moving party has satisfied this burden, the nonmoving party must “go beyond the pleadings 23 and by [his] own affidavits, or by the depositions, answers to interrogatories, and 24 25 3 The First Amended Complaint at Doc. No. 5 is the operative complaint. 26 4 Internal quotations, citations, and alterations are omitted from the cases cited in this Order unless 27 1 admissions on file,” to show that a genuine issue of disputed fact remains. Id. at 324. “In 2 judging evidence at the summary judgment stage, the court does not make credibility 3 determinations or weigh conflicting evidence.” Soremekun v. Thrifty Payless, Inc., 509 4 F.3d 978, 984 (9th Cir. 2007). “Rather, it draws all inferences in the light most favorable 5 to the nonmoving party.” Id. 6 III. DISCUSSION 7 Here, Velocity seeks summary judgment on Plaintiff’s Rosenthal Act claims against 8 it, arguing that Plaintiff cannot establish that Velocity should be held vicariously liable for 9 the conduct of its attorney, MLG. (Doc. No. 53-1.) Though not a model of clarity, it appears 10 Plaintiff’s motion for partial summary judgment seeks summary adjudication in her favor 11 that: (1) MLG is a debt collector for purposes of the FDCPA; (2) both Defendants are debt 12 collectors for purposes of the Rosenthal Act; (3) Ms. De Alba is a “consumer” and her debt 13 is a “consumer debt” under the two statutes at issue; (4) based on the Court’s Order on 14 Defendants’ anti-SLAPP motion, Plaintiff merits summary judgment on her FDCPA and 15 Rosenthal Act claims; and (5) neither Defendant can establish the defenses pled in their 16 joint Answer. (Doc. No. 57-1 at 9–10.) The Court discusses these issues in turn. 17 A. Whether Velocity is Vicariously Liable for MLG’s Acts 18 Velocity contends that Plaintiff has not presented evidence that it can be vicariously 19 liable for the conduct of its attorney, MLG, under the Rosenthal Act. The Court disagrees. 20 While there is no binding California case on this specific issue, “[t]he Rosenthal Act 21 mimics or incorporates by reference the FDCPA’s requirements . . . and makes available 22 the FDCPA’s remedies for violations.” Riggs v. Prober & Raphael, 681 F.3d 1097, 1100 23 (9th Cir. 2012). The Ninth Circuit has “recognized vicarious liability under the FDCPA” 24 and explained that under general agency principles, “to be liable for the actions of another, 25 the principal must exercise control over the conduct or activities of the agent.” Clark v. 26 Cap. Credit & Collection Servs., Inc., 460 F.3d 1162, 1173 (9th Cir. 2006) (citing with 27 approval Newman v. Checkrite California, 912 F. Supp. 1354, 1370 (E.D. Cal.1995) and 1 Restatement (Second) of Agency § 1 (1958)). Considering the parallel nature of the 2 FDCPA and Rosenthal Act, the Court deems it appropriate to apply these general FDCPA 3 principles to determine the issue of vicarious liability under the Rosenthal Act here. Indeed, 4 other courts facing similar issues have done the same. See, e.g., Newman, 912 F. Supp. at 5 1370 n.19 (explaining that both federal and California courts look to the Restatement to 6 ascertain common law agency principles). 7 Here, Velocity does not dispute Plaintiff’s contention that as Velocity’s attorney, 8 MLG was Velocity’s agent. Compare (Doc. No. 57-1 at 22 (Plaintiff asserting that MLG 9 is per se Velocity’s agent), with (Doc. No. 58 (Velocity not rejecting so)). Instead, Velocity 10 maintains that Plaintiff has not offered evidence that it had the right to control MLG’s 11 litigation conduct or that Velocity even knew of the default package MLG sent to Plaintiff 12 for purposes of imposing vicarious liability here. 13 The Court finds there is evidence upon which a reasonable trier of fact could 14 conclude that Velocity exercised control over MLG in this case. For example, the 15 declaration of MLG partner, Christopher Mandarich, states that Velocity referred 16 Plaintiff’s debt collection matter to his firm, and on Velocity’s behalf, MLG filed the 17 Collection Complaint against Plaintiff. (Doc. No. 53-2 at 5.) The declaration also indicates 18 that the scope of Velocity’s referral permitted MLG to “collect Plaintiff’s debt through 19 letters and phone calls.” (Id.) Indeed, in the letter MLG sent to Plaintiff concerning the 20 request for default judgment, MLG introduced itself as Velocity’s representative in 21 Plaintiff’s debt matter and collection lawsuit before informing her that they are requesting 22 the court enter a default judgment against her. (Doc. No. 29-3 at 5 (“Dear ROCIO 23 DEALBA: Our firm represents Velocity Investments, LLC in the above referenced matter 24 and pending lawsuit. You were served with the lawsuit and failed to respond. At this time 25 we are requesting that the court enter a default judgment against you.”). 26 Such evidence—viewed in the light most favorable to Plaintiff—can support a 27 finding that Velocity had the right to control MLG’s conduct or activities with respect to 1 its collection of Plaintiff’s debt and that MLG acted within the scope of authority granted 2 that Velocity granted it. See Fenton v. Freedman, 748 F.2d 1358, 1362 (9th Cir. 1984) (“It 3 is not necessary to prove that the principal exercised his right of control or actually 4 supervised the work of the agent, so long as the existence of the right is established from 5 the facts.”); see also Blanton v. Womancare, Inc., 696 P.2d 645, 649 (Cal. 1985) (“the 6 client as principal is bound by the acts of the attorney-agent within the scope of his actual 7 authority (express or implied) or his apparent or ostensible authority; or by unauthorized 8 acts ratified by the client.”). 9 While Velocity points to deposition testimony from its company representative that 10 Velocity relies on the law firms it hires to manage the legal process, such testimony does 11 not conclusively establish that Velocity had no right to control MLG’s conduct by virtue 12 of their attorney-client relationship. And the resolution of such factual disputes requires 13 consideration of competing evidence and witness credibility, which the Court cannot do 14 here. 15 Drawing all inferences from the evidence in the light most favorable to Plaintiff— 16 as the Court must at the summary judgment stage—the Court finds that a reasonable jury 17 could find that Velocity had the right to control MLG’s conduct in this case, and thus, can 18 be held vicariously liable under the Rosenthal Act. Accordingly, the Court DENIES 19 Velocity’s motion for summary judgment on this basis. 20 B. Whether MLG is a “Debt collector” under the FDCPA 21 Next, Plaintiff requests summary judgment on the issue of whether MLG is a debt 22 collect for purposes of the FDCPA. Under the federal statute, a “debt collector” is “any 23 person who uses any instrumentality of interstate commerce or the mails in any business 24 the principal purpose of which is the collection of any debts, or who regularly collects or 25 attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due 26 another.” 15 U.S.C. § 1692a(6). 27 1 According to Plaintiff, MLG is a debt collector under the FDCPA because MLG’s 2 “exclusive business activity is to collect debts on behalf of third parties” and does so “by 3 contacting consumers by telephone, letters, and email, and by filing and prosecuting 4 collection litigation.” (Doc. No. 57-1 at 13–14 (citing in support deposition testimony at 5 Doc. No. 57-3 at 43–45).) Plaintiff also asserts that MLG admitted at deposition that it is 6 “engaged in the collection of consumer and/or commercial debt” on behalf of third parties. 7 (Doc. No. 57-3 at 44–45.) MLG offered no argument or evidence to the contrary. 8 There being no genuine dispute that MLG is a debt collector for purposes of the 9 FDCPA, the Court treats this fact as established in this case. See Fed. R. Civ. P. 56(g); 10 Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Ready Pac Foods, Inc., 782 F. Supp. 2d 11 1047, 1051 (C.D. Cal. 2011) (“Rule 56(g) allows a court to grant partial summary 12 judgment, thereby reducing the number of facts at issue in a trial.”). Accordingly, the Court 13 GRANTS Plaintiff’s motion for partial summary judgment on this basis. 14 C. Whether Defendants are “Debt Collector” under the Rosenthal Act 15 Plaintiff also requests summary judgment on the issue of whether Defendants are 16 debt collectors for purposes of the Rosenthal Act. Under the state statute, a “debt collector” 17 is “any person who, in the ordinary course of business, regularly, on behalf of that person 18 or others, engages in debt collection.” Cal. Civ. Code § 1788.2(c). Debt collection, in turn, 19 “means any act or practice in connection with the collection of consumer debts. Id. 20 § 1788.2(b). 21 As to MLG, Plaintiff reiterates that deposition testimony establishes that MLG 22 regularly engages in collecting debt on behalf of its clients. (Doc. No. 57-3 at 43–45.) 23 Again, MLG does not dispute Plaintiff’s position or evidence. There being no genuine 24 dispute that MLG is a debt collector for purposes of the Rosenthal Act, the Court treats this 25 fact as established in this case. See Fed. R. Civ. P. 56(g). Accordingly, the Court GRANTS 26 Plaintiff’s motion for partial summary judgment on this basis. 27 1 As to Velocity, Plaintiff argues that Velocity admitted to being a debt collector as 2 defined in the Rosenthal Act and cited Velocity’s response to its Request for Admission 3 No. 15 in support. (Doc. No. 57-3 at 169.) Velocity counters that although its response 4 admits that it is a debt collector within the meaning of Cal. Civ. Code § 1788.2(c), it 5 expressly denied being a debt collector as to Plaintiff specifically. The argument fails to 6 persuade. 7 To meet the definition of “debt collector,” the plain text of Cal. Civ. Code 8 § 1788.2(c) requires only that Velocity, in the ordinary course of business, be regularly 9 engaged in debt collection on its, or other’s behalf. And Velocity offers no authority for its 10 position that one be considered a debt collector generally, but not one specifically. 11 Accordingly, the Court does not find there to be a genuine issue of material fact as to 12 whether Velocity is a debt collector for purposes of the Rosenthal Act, and thus, GRANTS 13 Plaintiff’s motion for partial summary judgment on this basis. 14 D. “Consumer” and “Consumer Debt” under the FDCPA & Rosenthal Act 15 Plaintiff also seeks summary judgment on the issues of whether the definitions of 16 “consumer” and “consumer debt” under the FDCPA & Rosenthal Act are satisfied in this 17 case. Under the FDCPA, a “consumer is “any natural person obligated or allegedly 18 obligated to pay any debt.” 15 U.S.C. § 1692a(3). And “debt” is defined as “any obligation 19 or alleged obligation of a consumer to pay money arising out of a transaction in which the 20 money, property, insurance, or services which are the subject of the transaction are 21 primarily for personal, family, or household purposes. . .” Id. § 1692a(5). The Rosenthal 22 Act defines these terms similarly. See Cal. Civ. Code § 1788.2(e), (f). 23 Here, Plaintiff is a natural person, whom Defendants allege owe a debt, which 24 Plaintiff’s declaration establishes was incurred for personal and household purposes. (Doc. 25 No. 57-4 at 2.) Defendants do not dispute these facts or Plaintiff’s contention that such 26 evidence meets the definitions of “consumer” and “consumer debt” for purposes of the 27 FDCPA and the Rosenthal Act. There being no dispute as to these issues, the Court finds 1 them established in this case. See Fed. R. Civ. P. 56(g). Accordingly, the Court GRANTS 2 Plaintiff’s motion for partial summary judgment on this basis. 3 E. Liability based on the Court’s Findings on the Anti-SLAPP Motion 4 Next, Plaintiff requests summary judgment in her favor on her FDCPA and 5 Rosenthal Act claims. In Plaintiff’s view, she has established that Defendants violated 6 §§ 1692e, 1692d and 1692f of the FDCPA (and in turn, the Rosenthal Act claims premised 7 on those FDCPA violations) as a matter of law based solely on the Court’s findings in its 8 Order on Defendants’ anti-SLAPP motion. (Doc. No. 57-1 at 16–18.) Plaintiff, however, 9 presents no authority upon which the Court could find that prevailing against an 10 anti-SLAPP motion necessarily means she must prevail on the ultimate issue of liability. 11 As explained in the prior Order, the Court’s determination of the anti-SLAPP motion 12 concerned whether Plaintiff demonstrated “a probability of prevailing on her claims” and 13 the “inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made 14 a prima facie factual showing sufficient to sustain a favorable judgment.” (Doc. No. 49 at 15 5.) The Court’s conclusion that Plaintiff has demonstrated a probability of prevailing on 16 her claims is not the same as an ultimate finding of liability. Nor is it the same as finding— 17 as the Court would need to find here—that based on uncontroverted evidence, there are no 18 genuine issues of material fact as to Plaintiff’s claims such that she is entitled to judgment 19 as a matter of law. See Celotex, 477 U.S. at 322. 20 Because Plaintiff’s summary judgment request rests solely on the Court’s finding 21 that she has demonstrated a probability of prevailing on her claims and fails to clearly set 22 forth how each element of her claims is established by conclusive evidence, the Court 23 deems it inappropriate to grant judgment in the manner Plaintiff seeks here. Accordingly, 24 the Court DENIES Plaintiff’s motion for summary judgment on this basis. 25 F. Defendants’ Affirmative Defenses 26 Plaintiff additionally seeks summary judgment on Defendants’ affirmative defenses: 27 bona fide error, lack of standing, unclean hands, contribution, fault of others, and 1 mitigation of damages.5 2 As an initial matter, the Court notes that while Defendants filed an opposition, they 3 chose to respond only to Plaintiff’s challenge to their bona fide error defense. (Doc. No. 58 4 (containing no argument as to the other affirmative defenses).) Thus, the Court deems 5 Defendants’ other affirmative defenses—lack of standing, unclean hands, contribution. 6 fault of others, and mitigation of damages—abandoned. See Jenkins v. Cnty. of Riverside, 7 398 F.3d 1093, 1095 n.4 (9th Cir. 2005) (noting that Jenkins “abandoned her other two 8 claims by not raising them in opposition to the County’s motion for summary judgment.”). 9 Accordingly, the Court GRANTS Plaintiff’s motion for summary judgment on these 10 abandoned defenses. 11 With respect to the bona fide error defense, Plaintiff argues that Defendants have 12 waived this defense because they did not raise it in their briefing on the anti-SLAPP motion. 13 A waiver “is the intentional relinquishment or abandonment of a known right.” Morgan v. 14 Sundance, Inc., 596 U.S. 411, 417 (2022). “To decide whether a waiver has occurred, the 15 court focuses on the actions of the person who held the right; the court seldom considers 16 the effects of those actions on the opposing party.” Id. 17 Here, Defendants explain that it did not argue a bona fide error defense in their 18 anti-SLAPP briefing because doing so would have entailed consideration of potentially 19 conflicting evidence, which is outside the scope of the Court’s inquiry on an anti-SLAPP 20 motion. The point is well taken. 21 As the Court noted in the prior Order, in deciding the anti-SLAPP motion, the Court 22 had to accept Plaintiff’s evidence as true, and could not weigh evidence or resolve 23 conflicting factual claims. (Doc. No. 49 at 5.) And because the analysis focused on whether 24 25 5 Plaintiff also appears to challenge the affirmative defenses of “invalid service,” “good faith exception,” 26 and “waiver,” but those were not raised in Defendants’ Answer. (Doc. No. 16.) Because those defenses were not raised in the Answer, and Defendants’ briefs do not, in any event, address them, the Court 27 1 Plaintiff demonstrated a prima facie case of her claims, the Court could only evaluate 2 Defendants’ showing to determine if it defeats Plaintiff’s claims as a matter of law. (Id.) 3 Understanding that their bona fide error defense entailed disputed issues of fact that were 4 inappropriate for resolution at that stage, Defendants chose not to argue the defense at that 5 time. Defendants’ decision in this regard is not inconsistent with their right to assert this 6 defense. Because Defendants’ actions do not establish and “intentional relinquishment or 7 abandonment of a known right,” Morgan., 596 U.S. at 417, the Court does not find that 8 Defendants have waived their bona fide error defense. Accordingly, the Court DENIES 9 Plaintiff’s motion for summary judgment on Defendants’ bona fide error defense. 10 Plaintiff also argues, in the alternative, that Defendants lack evidence to establish 11 their bona fide error defense. “The bona fide error defense requires a showing that the debt 12 collector: (1) violated the FDCPA unintentionally; (2) the violation resulted from a bona 13 fide error; and (3) the debt collector maintained procedures reasonably adapted to avoid 14 the violation.”6 Urbina v. Nat'l Bus. Factors Inc., 979 F.3d 758, 763 (9th Cir. 2020). 15 Plaintiff contends that Defendants do not have evidence that they maintained procedures 16 reasonably adapted to avoid the violation at issue here. 17 Here, the error at issue was the filing of the request for default and sending a letter 18 to Plaintiff regarding the request for default. According to Defendants, the error occurred 19 because MLG was unaware of Plaintiff’s response to the Collection Complaint. And in 20 support of their position that MLG maintained procedures reasonably adapted to avoid the 21 error, Defendants point to MLG’s partner’ declaration and supporting document detailing 22 MLG’s “procedures for processing mail and all incoming documents,” which are “intended 23 to ensure that all incoming pleadings and other documents are properly recorded in the 24

25 6 There is no dispute that the Rosenthal Act provides a similar defense. See Cal. Civ. Code § 1788.30(e) (“A debt collector shall have no civil liability to which such debt collector might otherwise be subject for 26 a violation of this title, if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted notwithstanding the maintenance of procedures reasonably adapted to avoid 27 1 appropriate account file.” (Doc. No. 58-1 at 2.) The declaration explains that “MLG’s 2 Incoming Document procedures are intended to ensure that a request for default is only 3 filed with a court when the consumer defendant failed to respond to the complaint” and 4 that its “attorney procedures also require that an attorney review the account to ensure that 5 it is appropriate and permissible to file a request for default, i.e., that sufficient time had 6 elapsed to support a request for default, that the consumer had not responded to the 7 complaint and that MLG had received supporting documentation and information from its 8 client.” (Id.) Defendants also reference the caption of the Collection Complaint which 9 identifies for Plaintiff MLG’s correct P.O. Box address. 10 As MLG has pointed to evidence of procedures upon which a reasonable jury could 11 support a finding of a bona fide error defense, the Court rejects Plaintiff’s contention that 12 MLG cannot establish this defense. The Court acknowledges that Plaintiff takes issue with 13 whether MLG’s procedures were reasonably adapted to avoid the violation when it has no 14 policy of checking the case docket for filings, but such dispute is for the trier of fact to 15 resolve after weighing the parties’ evidence, which the Court cannot do here.7 See Gorman 16 v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1157 (9th Cir. 2009) (“We have held that 17 ‘summary judgment is generally an inappropriate way to decide questions of 18 reasonableness because the jury’s unique competence in applying the reasonable man 19 standard is thought ordinarily to preclude summary judgment.”). Accordingly, the Court 20 DENIES Plaintiff’s motion for summary judgment in her favor on MLG’s bona fide error 21 defense. 22 Finally, the Court notes that Defendants raise no argument as to Velocity’s bona fide 23 error defense or evidence of any procedure maintained by Velocity to avoid the error that 24

25 7 The Court acknowledges that Defendants raised relevance objections to Plaintiff’s evidence that MLG has used different addresses in the past and closed its office for a period of time during the COVID-19 26 pandemic. Because “objections for relevance are generally unnecessary on summary judgment,” Sandoval v. Cnty. of San Diego, 985 F.3d 657, 665 (9th Cir. 2021), and the Court’s ruling in this matter does not 27 1 || occurred here. Accordingly, the Court GRANTS Plaintiff's motion for summary judgment 2 ||in her favor on Velocity’s bona fide error defense. 3 CONCLUSION 4 For the reasons stated herein, the Court DENIES Velocity’s motion for summary 5 ||judgment (Doc. No. 53) and GRANTS IN PART and DENIES IN PART Plaintiffs 6 || motion for partial summary judgment (Doc. No. 57). 7 In sum, the Court DISMISSES Defendants’ affirmative defenses of lack of standing, 8 ||unclean hands, contribution, fault of others, and mitigation of damages, and DISMISSES 9 || Velocity’s bona fide error defense. Additionally, the Court finds the following facts 10 || established in this case. 11 e MLGisa “debt collector” under the FDCPA. 12 e Defendants are “debt collectors” under the Rosenthal Act. 13 e Plaintiff is a “consumer”, and her debt constitutes “consumer debt”, under the 14 FDCPA and Rosenthal Act. 15 All other issues, including but not limited to whether Velocity is vicariously liable 16 MLG’s conduct under the circumstances of this case and MLG’s bona fide error 17 || defense, remain for trial. 18 Having ruled on the pending motions, the Court DIRECTS the parties to contact the 19 || Magistrate Judge’s chambers no later than August 21, 2024 to reschedule a mandatory 20 || settlement conference, as well as the pretrial deadlines and final pretrial conference, for 21 case. 22 IT IS SO ORDERED. 23 Dated: August 16, 2024 © 24 Hon, Anthony J.Battaglia 25 United States District Judge 26 27 28