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Date: 05-12-2015

Case Style: Tamara Diaz v. Kubler Corporation d/b/a Alternative Recovery Management

Case Number: 14-55235

Judge: Donato

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Southern District of California (San Diego County)

Plaintiff's Attorney: Mike Crowley (argued) and Andre L. Verdun, Crowley
Law Group, San Diego, California; Eric LaGuardia,
LaGuardia Law, San Diego, California, for Plaintiff-
Appellee.

Defendant's Attorney: June D. Coleman (argued), Kronick Moskovitz Tiedemann &
Girard PC, Sacramento, California, for Defendant-Appellant.

Tom Griffin, Hefner, Stark & Marois, LLP,
Sacramento, California; Brian Melendez, Dykema Gossett, Minneapolis, Minnesota

Description: This appeal involves a suit by a debtor against a debt
collector, alleging that by sending a collection letter that
sought ten percent interest on the debt, the debt collector
violated the provision of the federal Fair Debt Collection
Practices Act (“FDCPA”) codified at 15 U.S.C. § 1692f(1)
and thereby also violated California’s Fair Debt Collection
Practices Act (the “Rosenthal Act”), Cal. Civ. Code
§§ 1788-1788.33. The district court agreed that the debt
collector violated the FDCPA and the Rosenthal Act, and
granted summary judgment in the debtor’s favor. Exercising
jurisdiction under 28 U.S.C. § 1291, we reverse the district
court’s grant of summary judgment and remand.
I.
Congress passed the FDCPA to “eliminate abusive debt
collection practices by debt collectors.” 15 U.S.C. § 1692(e).
To that end, the statute prohibits debt collectors from trying
to collect any amount that is not “expressly authorized by the
agreement creating the debt or permitted by law.” 15 U.S.C.
§ 1692f(1). A debt collector does not violate this provision
if the amounts it seeks are authorized by state law. See Allen
ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 369 (3d
Cir. 2011); Freyermuth v. Credit Bureau Servs., 248 F.3d
767, 770 (8th Cir. 2001); see also Staff Commentary on the
4 DIAZ V. KUBLER CORP.
Fair Debt Collection Practices Act, 53 Fed. Reg. 50,097,
50,108 (Fed. Trade Comm’n 1988).
The pertinent state laws are sections 3287 and 3289 of the
California Civil Code. Section 3287 allows recovery of prejudgment
interest on debts under certain circumstances:
(a) Every person who is entitled to recovery
damages certain, or capable of being made
certain by calculation, and the right to recover
which is vested in him upon a particular day,
is entitled also to recover interest thereon
from that day, except during which time as the
debtor is prevented by law, or by the act of the
creditor from paying the debt. This section is
applicable to recovery of damages and interest
from any such debtor, including the state or
any county, city, city and county, municipal
corporation, public district, public agency, or
any political subdivision of the state.
(b) Every person who is entitled under any
judgment to receive damages based upon a
cause of action in contract where the claim
was unliquidated, may also recover interest
thereon from a date prior to the entry of
judgment as the court may, in its discretion,
fix, but in no event earlier than the date the
action was filed.
DIAZ V. KUBLER CORP. 5
Cal. Civ. Code § 3287 (West 1997) (amended 2013).1
Section 3289 provides that “[i]f a contract entered into after
January 1, 1986, does not stipulate a legal rate of interest, the
obligation shall bear interest at a rate of 10 percent per annum
after a breach.” Cal. Civ. Code § 3289.
The Rosenthal Act “mimics or incorporates by reference
the FDCPA’s requirements . . . and makes available the
FDCPA’s remedies for violations.” Riggs v. Prober &
Raphael, 681 F.3d 1097, 1100 (9th Cir. 2012). The parties do
not dispute that the Rosenthal Act claims at issue in this
appeal rise or fall with the FDCPA claims.
II.
The relevant facts are not disputed. Appellee Tamara
Diaz incurred a debt for receiving dental services from
Parkway Dental Group in the spring of 2011. Parkway later
referred the debt to appellant Kubler Corporation (doing
business as Alternative Recovery Management, or “ARM”),
a debt collection agency, which began efforts to collect on the
debt. As part of these efforts, Kubler sent Diaz a letter in
May 2012 demanding that she pay $3,144 in principal and
$298.03 in interest. The parties agree that the demand for
interest reflects an annual interest rate of ten percent.
In July 2012, Diaz filed suit against Kubler in federal
district court, and subsequently amended her complaint to
claim that Kubler violated 15 U.S.C. § 1692f(1) and the
1 The statute is quoted as it stood during the events that gave rise to this
case. In 2013, the statute underwent several minor changes, none of
which are material to the issues in this appeal. Cal. Civ. Code § 3287
(West Supp. 2015).
6 DIAZ V. KUBLER CORP.
Rosenthal Act by seeking interest in the May 2012 letter. She
later moved for summary judgment. The district court
granted summary judgment and held that “[w]ithout a
judgment for breach of contract awarding prejudgment
interest, Defendant cannot seek to collect prejudgment
interest on Plaintiff’s debt at the rate set forth in California
Civil Code section 3289.” Diaz v. Kubler Corp., 982 F. Supp.
2d 1146, 1156 (S.D. Cal. 2013) (citations omitted).
Afterwards, Diaz chose not to try her remaining claims to
a jury, and instead sought statutory damages for the claims on
which she had prevailed at summary judgment. The district
court awarded her $500 in statutory damages, as well as
attorneys’ fees and costs. Kubler timely appealed.
III.
We review de novo the district court’s order granting
summary judgment, see John Doe 1 v. Abbott Labs., 571 F.3d
930, 933 (9th Cir. 2009), and its interpretation of state law,
see Paulson v. City of San Diego, 294 F.3d 1124, 1128 (9th
Cir. 2002) (en banc). “When interpreting state law, we are
bound to follow the decisions of the state’s highest court,”
and “[w]hen the state supreme court has not spoken on an
issue, we must determine what result the court would reach
based on state appellate court opinions, statutes and
treatises.” Id. (citations omitted).
It is quite plain that Kubler would have been entitled to
prejudgment interest under California law when it sent its
collection letter if the debt in question was certain or capable
of being made certain at that time, even if Kubler had not yet
obtained a judgment from a court. Section 3287(a) allows
recovery of interest from the time the creditor’s right to
DIAZ V. KUBLER CORP. 7
recover “is vested,” and we have previously explained that
“California cases uniformly have interpreted the ‘vesting’
requirement as being satisfied at the time that the amount of
damages become certain or capable of being made certain,
not the time liability to pay those amounts is determined.”
Evanston Ins. Co. v. OEA, Inc., 566 F.3d 915, 921 (9th Cir.
2009) (collecting cases); see also Cataphora Inc. v. Parker,
848 F. Supp. 2d 1064, 1072 (N.D. Cal. 2012) (discussing
California cases and reaching same conclusion). “Damages
are deemed certain or capable of being made certain within
the provisions of subdivision (a) of section 3287 where there
is essentially no dispute between the parties concerning the
basis of computation of damages if any are recoverable but
where their dispute centers on the issue of liability giving rise
to damage.” Leff v. Gunter, 658 P.2d 740, 748 (Cal. 1983)
(citation omitted). Consequently, prejudgment interest under
section 3287(a) becomes available as of the day the amount
at issue becomes “calculable . . . mechanically, on the basis
of uncontested and conceded evidence,” and it is available “as
a matter of right,” rather than at the discretion of a court. Id.
at 748, 749.
Our conclusion that section 3287(a) can entitle a creditor
to interest even without a prior judgment is confirmed by the
text of section 3287(b), which applies where the amount of
damages is not certain or capable of being made certain. That
provision explicitly states that it only permits prejudgment
interest where a person is “entitled under any judgment to
receive damages based upon a cause of action in contract
where the claim was unliquidated.” Cal. Civ. Code § 3287(b)
(emphasis added). The obvious implication is that the word
“entitled” when used on its own (as it is in section 3287(a))
does not carry with it any implicit requirement that the
entitlement be pursuant to a judgment. Cf. Romero-Ruiz v.
8 DIAZ V. KUBLER CORP.
Mukasey, 538 F.3d 1057, 1063–64 (9th Cir. 2008) (“It is a
well-established principle of statutory construction that
legislative enactments should not be construed to render their
provisions ‘mere surplusage.’”); People v. Woodhead,
741 P.2d 154, 157 (Cal. 1987) (“[W]hen the drafters of a
statute have employed a term in one place and omitted it in
another, it should not be inferred where it has been
excluded.”). It follows that a judgment awarding interest
pursuant to section 3287(a) merely vindicates a pre-existing
right to interest instead of creating it. Kubler might well have
had a right to pre-judgment interest pursuant to section
3287(a) in May 2012, despite not having obtained a judgment
saying so. And given the absence of any provision in the
contract stipulating to a particular rate of interest, the interest
rate that would apply is section 3289’s default of ten percent.
Diaz relies on Unocal Corp. v. United States, 222 F.3d
528 (9th Cir. 2000), to defend the district court’s findings but
that case provides her with no meaningful support. Unocal
states that “[s]ection 3287 provides for an award of
prejudgment interest whenever a plaintiff prevails in a breach
of contract claim for an amount of damages that is certain or
is capable of being made certain by calculation.” Id. at 541.
But just because prejudgment interest can be awarded if a
plaintiff prevails in court does not mean the plaintiff was not
entitled to prejudgment interest even before.
The district court’s grant of summary judgment was based
on an incorrect reading of section 3287. Summary judgment
in Diaz’s favor might still have been appropriate if it were
undisputed that Diaz’s debt was not certain or capable of
being made so, thus rendering section 3287(a) inapplicable.
But the district court made no such determination, apart from
citing a declaration from Diaz in a footnote to its recitation of
DIAZ V. KUBLER CORP. 9
facts, in which she claimed that she believed Parkway was
“attempting to collect more than what [she] owed.” Given
Kubler’s insistence that the debt was in fact certain – a claim
supported by documents from Diaz’s insurer and a small
claims court settlement with Parkway that she entered into –
Diaz’s conclusory statement is not the grist of undisputed
material fact. If Kubler is correct that the debt was certain by
May 2012, the attempt to seek prejudgment interest in the
collection letter was “permitted by law,” and did not cross
15 U.S.C. § 1692f(1) or the Rosenthal Act.
Nor is it the case that a debt collector must generally be
entitled by judgment to a type of relief in order for that relief
to be “permitted by law” within the meaning of 15 U.S.C.
§ 1692f(1). To hold that a debt collector must have a
judgment in hand in order for the relief it seeks to be
“permitted by law” would lead to untenable results, given the
fact that § 1692f(1) can be violated by the filing of a lawsuit
that seeks to collect an amount not authorized by the debt
agreement or permitted by law. See Heintz v. Jenkins,
514 U.S. 291, 294 (1995) (holding that the FDCPA “applies
to the litigating activities of lawyers”); Donohue v. Quick
Collect, Inc., 592 F.3d 1027, 1031–32 (9th Cir. 2010) (“We
. . . conclude that a complaint served directly on a consumer
to facilitate debt-collection efforts is a communication subject
to the requirements of §§ 1692e and 1692f.”). If a prior court
judgment were a sine qua non for relief to be “permitted by
law,” a person would not be able to file a lawsuit seeking
prejudgment interest unless she had already obtained a
judgment awarding prejudgment interest. Nothing in
§ 1692f(1) requires this Catch-22.
10 DIAZ V. KUBLER CORP.

* * *

2 At oral argument, Diaz argued for the first time that Kubler’s letter
violated the FDCPA by not including details like what time period the
requested interest was calculated over and whether Kubler was demanding
interest that might accrue in the future. Because this argument was not
made in Diaz’s appellate brief, it was waived, and we do not address it.
See Butler v. Curry, 528 F.3d 624, 642 (9th Cir. 2008).

Outcome: We conclude that Kubler’s debt collection letter did not
violate 15 U.S.C. § 1692f(1) or the Rosenthal Act.2 We
reverse the district court’s grant of summary judgment
against Kubler and remand for further proceedings consistent
with this opinion.

REVERSED AND REMANDED.

Plaintiff's Experts:

Defendant's Experts:

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