## Facts

- Annette Dickman leased a residential property in Escondido, California from Ed Forrester, beginning July 1, 2012, under a lease requiring $1,900 monthly rent payments.
- Dickman regularly paid rent by electronic deposit into an account associated with the landlord’s entity.
- Shortly after the lease began, Forrester filed for bankruptcy without Dickman’s knowledge.
- A recorded notice of default and notice of trustee’s sale existed as to the property, and the property was later sold at foreclosure to U.S. Financial, LP.
- Dickman did not know ownership had changed and continued paying rent to Forrester as she had been doing.
- U.S. Financial notified Dickman that it was the new owner of the property.
- A few days later, Kimball, Tirey & St. John LLP, acting as U.S. Financial’s counsel, sent Dickman a notice/letter stating her rent was past due and demanding payment within three days.
- The notice warned that if she did not pay within three days, legal proceedings would commence.
- The notice also stated that if U.S. Financial obtained a judgment, Dickman could be evicted and could face garnishment or levy of wages and bank accounts.
- The law firm then filed an unlawful detainer action against Dickman in California state court; the case was dismissed on technical grounds, including inadequate notice.
- Dickman filed a federal suit alleging the firm’s communications and unlawful detainer conduct violated the Fair Debt Collection Practices Act (FDCPA), and the firm moved to dismiss under Rule 12(b)(6).

## Issues

1. Whether California’s litigation privilege (Cal. Civ. Code § 47(b)) bars FDCPA claims based on a three-day rent demand notice and unlawful detainer litigation conduct.
2. Whether a three-day notice demanding residential rent and the filing of an unlawful detainer action can constitute “debt collection” activity under the FDCPA.
3. Whether Dickman’s complaint alleged enough factual detail to state plausible FDCPA claims under Rule 8 and, to the extent the allegations sounded in misrepresentation, satisfied Rule 9(b).

## Decision

- The court denied Kimball, Tirey & St. John LLP’s Rule 12(b)(6) motion to dismiss.
- The court held California’s litigation privilege did not preclude FDCPA liability because a state privilege cannot defeat a federal cause of action.
- The court held the complaint plausibly alleged conduct “in connection with the collection of a debt,” because residential rent can qualify as a debt and the notice sought payment and threatened collection consequences.
- The court held Dickman pled sufficient facts to satisfy federal pleading standards, including the content and timing of the notice and the ensuing unlawful detainer filing.

## Legal Principles

- A state litigation privilege cannot immunize conduct from liability under a federal statute; under the Supremacy Clause, Cal. Civ. Code § 47(b) does not bar FDCPA claims.
- Residential rent obligations arising from a consumer lease can constitute a “debt” under the FDCPA.
- Communications that demand payment and threaten legal action or post-judgment collection remedies may fall within FDCPA-regulated debt-collection activity, even when tied to eviction or an unlawful detainer proceeding.
- At the motion-to-dismiss stage, a plaintiff states an FDCPA claim by pleading concrete facts about the collection communication (who sent it, what it said, when it was sent, and why it was misleading or improper), and fraud-like misrepresentation theories must be pled with particularity under Rule 9(b).

## Conclusion

Dickman plausibly alleged that the law firm, acting for the foreclosing purchaser, attempted to collect unpaid residential rent through a three-day demand notice and an unlawful detainer action using statements about eviction and garnishment/levy, and the court therefore denied dismissal, holding that California’s litigation privilege could not defeat FDCPA claims and that the pleadings were sufficient to proceed.


Dickman v. Kimball, Tirey & St. John LLP, 982 F. Supp. 2d 1157 (2013)