Sinsay v. Bank of America CA6 ( 2023 )

Filed 07/17/23 Sinsay v. Bank of America CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
BERNABE CANTADA SINSAY, H049378, H049889
Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 20CV374613
v.
BANK OF AMERICA, N.A., et al.,
Defendants and Respondents.
Bank of America, N.A. (Bank of America), filed a collection action against
Bernabe Cantada Sinsay to recover $13,031 in unpaid credit card debt. A month prior to
trial, Bank of America filed and served a declaration pursuant to Code of Civil Procedure
section 98,1 which allows a party to offer a declaration into evidence in lieu of testimony
at trial, provided certain conditions are met. The declarant, Melinda K. Stephenson,
attested that she was an officer of the bank and would be available for service of process
during the relevant time period at her attorneys’ California offices, which she stated
would be sufficient to compel her appearance at trial. Bank of America later dismissed
the action before trial commenced.
Shortly thereafter, Sinsay sued Bank of America, Stephenson and related parties,
alleging that the filing of Stephenson’s declaration violated the Rosenthal Fair Debt
Collection Practices Act (Rosenthal Act) (Civ. Code, §§ 1738, 1788.88) and the Unfair
Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.). According to Sinsay,
1
Unspecified statutory references are to the Code of Civil Procedure.
Stephenson’s declaration falsely stated that Stephenson was an officer of the bank and
could be compelled to personally attend trial pursuant to section 1987, subdivision (b),
because she was in fact a resident of North Carolina.
The defendants filed a special motion to strike the complaint pursuant to section
425.16, the anti-SLAPP statute.2 They argued the causes of action arose from protected
petitioning activity and Sinsay had failed to carry his burden of demonstrating the claims
had the requisite merit, because he had submitted no evidence showing Stephenson was
not an officer or that her statement in the declaration regarding service was false. The
trial court agreed and granted the motion in its entirety.
On appeal, Sinsay concedes that his causes of action arise from protected activity,
but argues he carried his burden of demonstrating the claims have the requisite merit.
Specifically, he contends that Stephenson was not an officer and that her statement
regarding service was false because, pursuant to section 1989, she would not have been
obliged to appear at trial upon service at the attorneys’ California offices. According to
Sinsay, those material misrepresentations constituted violations of the Rosenthal Act and
UCL. He also appeals the trial court’s subsequent order awarding attorney fees to the
defendants.
We conclude that any misrepresentation in the Stephenson declaration was
immaterial and therefore did not constitute a violation of the Rosenthal Act or the UCL.
Because Sinsay failed to carry his burden of demonstrating a likelihood of prevailing on
the merits on his causes of action, the trial court did not err in granting the motion to
strike. We also conclude the trial court did not abuse its discretion awarding attorney
fees. We affirm.
2
An anti-SLAPP motion is a “special motion to strike a ‘strategic lawsuit against
public participation (SLAPP).’ ” (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767,
773-774.)
2
I. FACTUAL AND PROCEDURAL BACKGROUND3
A. Bank of America’s collection action
On March 10, 2017, Bank of America filed a collection action against Sinsay in
Santa Clara County Superior Court case No. 17CV309297 (collection action) to recover
$13,031 in unpaid principal, interest and fees due under a credit account. The matter was
deemed a limited civil case pursuant to section 85.
Trial in the collection action was set for February 3, 2020. One month before that
date, Bank of America filed and served a declaration of Melinda K. Stephenson in lieu of
personal testimony at trial (Stephenson declaration), pursuant to section 98.4 The
Stephenson declaration included the following language relevant to this appeal: “On
information and belief, and as an Officer of Plaintiff, any service of process on the
Declarant pursuant to C.C.P. §98(a) may be effected pursuant to C.C.P. §1987(b) by
providing notice to Plaintiff’s attorney, Nelson & Kennard, Attorneys at Law, 5011
Dudley Blvd., Bldg. 250, Bay G, McClellan, California 95652, which address I am
informed is within 150 miles of the place of trial. The Declarant is thus available,
through counsel, to accept service of process in accordance with C.C.P. 1987(b) at the
3
We draw our facts from the pleadings and supporting declarations submitted in
the trial court. We accept Sinsay’s factual assertions as true for the purpose of resolving
whether the trial court erred in granting the anti-SLAPP motion and consider only
whether any contrary evidence from respondents establishes their entitlement to prevail
as a matter of law. (Park v. Board of Trustees of California State University (2017) 2
Cal.5th 1057, 1067 (Park).)
4
As discussed further below, section 98 provides that, “in limited civil cases, a
sworn written statement, the contents of which otherwise might constitute inadmissible
hearsay, may sometimes be admitted on the same terms applicable to live witness
testimony. One such scenario arises when a party offers into evidence [a declaration] and
‘a copy . . . has been served on the party against whom it is offered at least 30 days prior
to the trial, together with a current address of the affiant that is within 150 miles of the
place of trial, and the affiant is available for service of process at that place for a
reasonable period of time, during the 20 days immediately prior to trial.’ ” (Meza v.
Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844, 848 (Meza), quoting § 98,
subd. (a).)
3
place(s) identified above for a reasonable period of time during the 20 days immediately
prior to trial.”
Prior to commencement of trial, Bank of America dismissed the collection action
in response to Sinsay’s claims of hardship.
B. Sinsay’s complaint
In December 2020, Sinsay filed the initial complaint in this action. He filed the
operative first amended complaint in April 2021 (complaint), naming Bank of America,
Stephenson, Nelson & Kennard and Robert Kennard—the law firm and attorney who
represented Bank of America in the collection action—as defendants (hereinafter,
respondents). The complaint brought a putative class action and asserted one cause of
action for violation of Business and Professions Code section 17200, the Unfair
Competition Law (UCL), and one cause of action for violation of the Rosenthal Act,
Civil Code sections 1788 through 1788.33.
Specifically, the complaint alleged that Stephenson is not actually an officer,
director, or managing agent for Bank of America within the meaning of section 1987,
subdivision (b), contrary to the assertions in her declaration. Similarly, it alleged that
Stephenson was not reasonably available for service of process at the address listed in her
declaration, within the meaning of section 98, because she in fact was, at all relevant
times, a resident of North Carolina.
Further, it alleged that respondents’ use of the Stephenson declaration was invalid
because Stephenson is not a resident of California; for that reason, the declaration was
“false, misleading, fraudulent, and unconscionable.” In addition, it alleged Sinsay was
unaware the Stephenson declaration was invalid and, as a result, he was required to
engage legal counsel to represent him in the collection action, thereby incurring
out-of-pocket pecuniary loss and actual damages in the form of attorney fees and costs.
According to the complaint, it is also respondents’ “standard practice” to use such
declarations in lieu of personal testimony at trial, which falsely represent or imply that a
4
nonresident declarant is an officer and may be compelled to personally attend trial
pursuant to section 1987, subdivision (b).
The first cause of action for violation of the UCL alleged that respondents made
false and misleading statements with the intent to induce reliance by Sinsay and the class,
as well as California Superior Court judges and the general public. In addition, it alleged
that those acts constitute unlawful, fraudulent, and unfair business practices because the
conduct was unlawful, immoral, unfair, unethical, oppressive, unscrupulous,
unconscionable, or substantially injurious to Sinsay and members of the class.
The second cause of action for violation of the Rosenthal Act alleged that the
Stephenson declaration falsely represented or implied that Stephenson was an officer and
could be compelled to personally attend trial pursuant to section 1987, subdivision (b),
which constituted a violation of Civil Code section 1788.17.
C. Anti-SLAPP motion
On May 21, 2021, respondents filed a special motion to strike pursuant to section
425.16. They argued that the action was based entirely on protected speech and
petitioning activity—namely, the sworn Stephenson declaration made in furtherance of
litigation. In addition, they argued Sinsay could not demonstrate that his claims had the
requisite merit to survive the motion because he lacked standing and the Stephenson
declaration was truthful. With respect to standing, respondents argued Sinsay had
suffered no injury at all, and thus could not demonstrate a concrete and particularized
injury of sufficient magnitude, as required to state a claim under either the UCL or
Rosenthal Act. With respect to the Stephenson declaration, respondents argued that
Stephenson was an officer and Sinsay had introduced no evidence to the contrary, and
that she had truthfully attested she was available for service of process in California,
regardless of her state of residence.
In support of their motion, respondents submitted declarations from Stephenson
and Robert Scott Kennard, their attorney in the collection action. In her declaration in
5
support of the motion, Stephenson stated, among other things, that she had been an
officer of the bank since 2011, and that as an officer she had the authority to execute
instruments that bind the bank, and the responsibility to provide testimony on behalf of
the bank, including by signing affidavits and declarations.
Sinsay opposed the motion. He conceded that his claims arose from protected
activity, but argued he had shown a likelihood of prevailing. Specifically, he argued that
whether Stephenson met the criteria to be an officer within the meaning of section 1987,
subdivision (b), “is a disputed factual issue on which Sinsay is entitled to discovery, and
one that cannot be resolved as a matter of law on an anti-SLAPP motion based on a
single self-serving [d]eclaration.” In addition, he argued that, even if Stephenson was an
officer, she was not amenable to California service of process because she was not a
resident. Accordingly, Sinsay argued that for Stephenson to state or imply to the contrary
was “per se false” and rendered her declaration “invalid and confusing to California
consumers.”
In support, Sinsay submitted a declaration in which he stated, among other things,
that: (1) he never agreed that Stephenson could appoint her attorneys to accept service;
(2) when he received the Stephenson declaration, he did not know how to respond and
was therefore required to engage legal counsel, “thereby incurring out-of-pocket
pecuniary losses and actual damages in the form of attorney fees and costs”; and (3) he
was unaware that a declaration pursuant to section 98 is invalid where the declarant is a
nonresident of California.
The trial court granted respondents’ motion to strike in August 2021. It
determined Sinsay had not carried his burden of demonstrating a probability of prevailing
on the merits of his claims for multiple reasons. First, Sinsay had not shown that
respondents had made a materially false or misleading statement. He had submitted no
evidence in support of his allegation that Stephenson was not an officer of the bank, and
had provided no legal authority in support of his contention that Stephenson could not
6
authorize her attorneys to accept service on her behalf and therefore could not be
compelled to appear and testify at trial. Second, the court held Sinsay had failed to
demonstrate that he had standing. Specifically, he had failed to show that his lack of
knowledge about how to respond to the Stephenson declaration and his subsequent
retention of counsel had anything to with the alleged Rosenthal Act violations. Finally,
with respect to the UCL cause of action, Sinsay had failed to show that he had incurred
legal fees as a result of the alleged misrepresentations in the Stephenson declaration. The
court added that respondents were entitled to recover attorney fees and costs pursuant to
section 425.16, subdivision (c)(1).
Sinsay timely appealed the trial court’s order (H049378).
D. Attorney fees
In October 2021, respondents filed two motions to recover attorney fees and costs
pursuant to section 425.16, subdivision (c)(1), one from Nelson & Kennard and Robert
Scott Kennard (Kennard defendants) for $52,035 and one from Bank of America and
Stephenson (bank defendants) for $50,000.
Sinsay opposed the motions, arguing that the Rosenthal Act supersedes the
anti-SLAPP statute’s mandatory attorney fees provision, and respondents had not made,
and cannot make, the required showing of bad faith. Specifically, Sinsay contended that
Civil Code section 1788.30, subdivision (c) applies, which provides that reasonable
attorney fees “may be awarded to a prevailing creditor upon a finding by the court that
the debtor’s prosecution or defense of the action was not in good faith.” Lastly, Sinsay
argued that, in the alternative, the trial court should substantially reduce the requested
amounts if it awards any fees.
The trial court granted the motions, awarding $48,335 to the Kennard defendants
and $50,000 to the bank defendants. It determined that the Rosenthal Act and
anti-SLAPP statute are not in conflict, so the mandatory provision of section 425.16,
subdivision (c)(1) applies.
7
Sinsay timely appealed (H049889).
This court ordered the two appeals to be considered together for purposes of oral
argument and disposition.5
II. DISCUSSION
A. Appeal of order granting anti-SLAPP motion (H049378)
Sinsay argues on appeal that he carried his burden of demonstrating a probability
of prevailing on the merits. Specifically, he contends he showed that (1) respondents
falsely claimed Stephenson was an “officer” of Bank of America within the meaning of
section 1987, subdivision (b), and that she could be compelled to appear and testify at
trial; and (2) Sinsay incurred actual damages as a result of the Stephenson declaration and
therefore demonstrated he had standing to bring his claims.
Respondents argue that (1) Sinsay failed to show Stephenson was not a bank
officer; (2) even if she was not an officer, Sinsay could not show that her declaration
contained a material misstatement because she consented to service at the attorneys’
office in California, and Sinsay never actually attempted to serve her; (3) Sinsay failed to
submit any evidence showing he incurred damages as a result of the alleged false
representations; and, (4) Sinsay’s claims are barred by the litigation privilege of Civil
Code section 47, which precludes civil claims based on communications made in
connection with litigation. Accordingly, respondents argue, Sinsay failed to carry his
burden of demonstrating a probability of prevailing on the merits, and the anti-SLAPP
motion was properly granted.
5
The record does not include a judgment following the order awarding fees. We
deem the order to incorporate a judgment and review it accordingly. (Sisemore v. Master
Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.)
8
1. Applicable law and standard of review
a. Anti-SLAPP
An anti-SLAPP motion allows a defendant to seek “early judicial screening of
legal claims targeting free speech or petitioning activities.” (Wilson v. Cable News
Network, Inc. (2019) 7 Cal.5th 871, 880-881.) The statute is “ ‘designed to protect
defendants from meritless lawsuits that might chill the exercise of their rights to speak
and petition on matters of public concern. [Citations.] To that end, the statute authorizes
a special motion to strike a claim “arising from any act of that person in furtherance of
the person’s right of petition or free speech under the United States Constitution or the
California Constitution in connection with a public issue.” ’ ” (Bonni v. St. Joseph
Health System (2021) 11 Cal.5th 995, 1008-1009 (Bonni), quoting Wilson, supra, at
pp. 883-884; § 425.16, subd. (b)(1).)
Resolution of an anti-SLAPP motion entails a two-step process. “First, ‘the
moving defendant bears the burden of establishing that the challenged allegations or
claims “aris[e] from” protected activity in which the defendant has engaged.’ [Citation.]
Second, for each claim that does arise from protected activity, the plaintiff must show the
claim has ‘at least “minimal merit.” ’ [Citation.] If the plaintiff cannot make this
showing, the court will strike the claim.” (Bonni, supra, 11 Cal.5th at p. 1009.)
The second prong of the anti-SLAPP analysis has been described as a
“ ‘summary-judgment-like procedure.’ ” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)
“The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is
limited to whether the plaintiff has stated a legally sufficient claim and made a prima
facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s
evidence as true, and evaluates the defendant’s showing only to determine if it defeats the
plaintiff’s claim as a matter of law.” (Id. at pp. 384-385.)
In this context, “ ‘the burden of establishing a probability of prevailing is not
high.’ ” (Issa v. Applegate (2019) 31 Cal.App.5th 689, 702; see also Whitehall v. County
9
of San Bernardino (2017) 17 Cal.App.5th 352, 363.) “Indeed, ‘ “to satisfy due process,
the burden placed on the plaintiff must be compatible with the early stage at which the
motion is brought and heard [citation] and the limited opportunity to conduct
discovery.” ’ ” (Jenni Rivera Enterprises, LLC v. Latin World Entertainment Holdings,
Inc. (2019) 36 Cal.App.5th 766, 781, quoting Hardin v. PDX, Inc. (2014) 227
Cal.App.4th 159, 166; see also Integrated Healthcare Holdings, Inc. v. Fitzgibbons
(2006) 140 Cal.App.4th 515, 530 [“We are inclined to allow the plaintiff . . . a certain
degree of leeway in establishing a probability of prevailing on its claims due to ‘the early
stage at which the motion is brought and heard [citation] and the limited opportunity to
conduct discovery.’ ”].)
We review de novo the grant or denial of an anti-SLAPP motion. (Park, supra, 2
Cal.5th at p. 1067.)
b. Rosenthal Act
Sinsay’s Rosenthal Act claim is based on an alleged violation of Civil Code
section 1788.17, which provides that “every debt collector collecting or attempting to
collect a consumer debt shall comply with the provisions of [15 U.S.C. sections 1692b to
1692j, inclusive] . . . and shall be subject to the remedies in [15 U.S.C. section
1692k] . . . .” (Civ. Code, § 1788.17.) The Rosenthal Act, through Civil Code section
1788.17, incorporates by reference the federal Fair Debt Collection Practices Act’s
(FDCPA) requirements “ ‘and makes available the FDCPA’s remedies for violations.’ ”
(Aguilar v. Mandarich Law Group, LLP (2023) 87 Cal.App.5th 607, 621 (Mandarich
Law Group), quoting Riggs v. Prober & Raphael (9th Cir. 2012) 681 F.3d 1097, 1100.)
“A violation of any of these FDCPA provisions is per se a violation of the Rosenthal Act.
[Citation.] A Rosenthal Act claim premised on a violation of the federal FDCPA,
however, ‘remains a state claim.’ ” (Mandarich Law Group, supra, at p. 621, quoting
Alkan v. Citimortgage, Inc. (N.D.Cal. 2004) 336 F.Supp.2d 1061, 1065.)
10
Whether Sinsay has shown that his Civil Code section 1788.17 claim has the
requisite merit thus depends on whether the alleged violation of the underlying FDCPA
provisions “ ‘ “is both legally sufficient and supported by a sufficient prima facie
showing of facts to sustain a favorable judgment if the evidence submitted by [Sinsay] is
credited.” ’ ” (Mandarich Law Group, supra, 87 Cal.App.5th at p. 622, quoting Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)
“The federal FDCPA regulates the conduct of debt collectors by prohibiting ‘any
false, deceptive, or misleading representation or means in connection with the collection
of any debt.’ (15 U.S.C. § 1692e.) It is a violation of the FDCPA to falsely represent
‘the character, amount, or legal status of any debt’ (15 U.S.C. § 1692e(2)(A)) or to
‘use . . . any false representation or deceptive means to collect or attempt to collect any
debt.’ (Id., § 1692e(10).) A false or misleading statement is not actionable under the
FDCPA unless it is material. (Afewerki v. Anaya Law Group (9th Cir. 2017) 868 F.3d
771, 773 (Afewerki) [‘To constitute a violation of the FDCPA, a false statement must be
“material.” ’], citing Donohue v. Quick Collect, Inc. (9th Cir. 2010) 592 F.3d 1027, 1033
(Donohue).” (Mandarich Law Group, supra, 87 Cal.App.5th at p. 622.)
“The FDCPA is a strict liability statute that does not ordinarily require proof of an
intentional violation.” (Mandarich Law Group, supra, 87 Cal.App.5th at p. 622, citing
Tourgeman v. Collins Financial Services, Inc. (9th Cir. 2014) 755 F.3d 1109, 1119.) The
analysis is objective and considers whether the “ ‘least sophisticated debtor would likely
be misled by a communication.’ ” (Mandarich Law Group, at p. 622.) “ ‘The “least
sophisticated debtor” standard is “lower than simply examining whether particular
language would deceive or mislead a reasonable debtor.” [Citation.] The standard is
“designed to protect consumers of below average sophistication or intelligence,” or those
who are “uninformed or naive,” particularly when those individuals are targeted by debt
collectors.’ ” (Ibid., quoting Gonzales v. Arrow Financial Services, LLC (9th Cir. 2011)
660 F.3d 1055, 1061-1062.) “At the same time, the standard ‘preserv[es] a quotient of
11
reasonableness and presum[es] a basic level of understanding and willingness to read
with care.’ ” (Gonzales, at p. 1062.) “ ‘In assessing FDCPA liability, we are not
concerned with mere technical falsehoods that mislead no one, but instead with genuinely
misleading statements that may frustrate a consumer’s ability to intelligently choose his
or her response.’ ” (Mandarich Law Group, at p. 622, quoting Donohue v. Quick Collect,
Inc., supra, 592 F.3d at p. 1034.) “A logical ‘ “corollary” to the least sophisticated debtor
standard’ under the FDCPA is the requirement that a misrepresentation must be material
to be actionable.” (Mandarich Law Group, at p. 626, quoting Afewerki v. Anaya Law
Group, supra, 868 F.3d at p. 775.)
c. UCL
“ ‘The purpose of the UCL “is to protect both consumers and competitors by
promoting fair competition in commercial markets for goods and services.” ’ [Citation.]
To that end, the UCL ‘ “provides an equitable means through which both public
prosecutors and private individuals can bring suit to prevent unfair business practices and
restore money or property to victims of these practices.” ’ [Citation.] ‘The UCL defines
“unfair competition” as “any unlawful, unfair or fraudulent business act or practice and
unfair, deceptive, untrue or misleading advertising.” (Bus. & Prof. Code, § 17200.)’ ”
(Prager University v. Google LLC (2022) 85 Cal.App.5th 1022, 1040-1041.)
d. Section 98, subdivision (a)
Section 98 is part of the “Economic Litigation for Limited Civil Cases,” a “subset
of civil actions, known as limited civil cases, in which the amount in controversy does
not exceed $25,000 and the parties seek only certain types of relief. (See Code Civ.
Proc., § 85.)” (Meza, supra, 6 Cal.5th at p. 848.) It provides in pertinent part: “A party
may, in lieu of presenting direct testimony, offer the prepared testimony of relevant
witnesses in the form of affidavits or declarations under penalty of perjury. The prepared
testimony may include, but need not be limited to, the opinions of expert witnesses, and
testimony which authenticates documentary evidence. To the extent the contents of the
12
prepared testimony would have been admissible were the witness to testify orally thereto,
the prepared testimony shall be received as evidence in the case, provided that either of
the following applies: [¶] (a) A copy has been served on the party against whom it is
offered at least 30 days prior to the trial, together with a current address of the affiant that
is within 150 miles of the place of trial, and the affiant is available for service of process
at that place for a reasonable period of time, during the 20 days immediately prior to
trial[;] [¶] (b) The statement is in the form of all or part of a deposition in the case, and
the party against whom it is offered had an opportunity to participate in the deposition.”
(§ 98.)
Section 98 provides a limited exception to the hearsay rule, predicated on the party
“against whom a sworn statement is offered having an opportunity to examine the maker
of the statement under oath.” (Meza, supra, 6 Cal.5th at p. 849.) To ensure that
opportunity, section 98 “requires the provision of an address within 150 miles of the
place of trial at which the affiant can be lawfully served with a form of process designed
to secure his or her appearance at trial, at which time the affiant can be called as a
witness.” (Meza, supra, at p. 849.) “Although one such type of process, a subpoena ad
testificandum (i.e., a subpoena to testify), typically must be personally served, there are
exceptions to this general rule, and at least some prospective witnesses can be called to
appear at trial through another form of process that does not require personal service.
Section 98[, subdivision] (a) therefore does not categorically require that all affiants be
personally present for service at an address within 150 miles of the place of trial for a
reasonable period during the 20 days prior to trial. Such personal presence is required
only if it is necessary for lawful service, at the specified location, of process that directs
the affiant to appear at trial, under the standard rules prescribing the pertinent types of
process and how such process is to be served.” (Ibid.)
13
2. Analysis
Sinsay’s central argument is that the Stephenson declaration was materially false
and misleading—thereby violating the Rosenthal Act and the UCL—because she was not
an officer within the meaning of section 1987, subdivision (b), and, as a resident of North
Carolina, she could not be lawfully served at the attorneys’ office in California “to secure
her appearance at trial.” We address these in turn.
a. Officer
As noted above, Stephenson stated in her declaration that she was an officer of
Bank of America, and that any service of process could be made on her pursuant to
section 1987, subdivision (b). That section sets forth exceptions to the general
requirement that, in order for a party to compel a person to appear at a civil trial, that
person must be personally served with a subpoena. One such exception is for “anyone
who is an officer, director, or managing agent” of a party or person for whose immediate
benefit an action is prosecuted or defended. (§ 1987, subd. (b); Meza, supra, 6 Cal.5th at
pp. 855-856.) Such a party or person “may be summoned to appear at trial through
service ‘upon the attorney of that party or person’ of ‘written notice requesting the
witness to attend . . . a trial,’ with service to occur no less than ‘10 days before the time
required for attendance unless the court prescribes a shorter time.’ ” (Meza, supra, at
pp. 855-856, quoting § 1987, subd. (b).) In such circumstances, “ ‘[t]he giving of the
notice shall have the same effect as service of a subpoena on the witness . . . .’ ” (Meza,
supra, at p. 856.) However, “[t]he notice to attend mechanism does not oblige a person
who resides outside of this state to appear at trial, a limitation that applies to subpoenas,
as well. (See § 1989.)” (Ibid.)
Sinsay alleged in the complaint that Stephenson was not an officer within the
meaning of section 1987, subdivision (b). In opposing the motion to strike, Sinsay
merely recited that allegation, but offered no evidence in support of the claim. As noted
above, a reviewing court must determine whether the plaintiff has shown, by admissible
14
evidence, a probability of prevailing on the merits. (§ 425.16, subd. (b).) If the plaintiff
cannot make that showing, the court must strike the claim. (Bonni, supra, 11 Cal.5th at
p. 1009.)
By submitting no evidence in support of his claim, Sinsay has failed to carry his
burden on this issue. Sinsay argues, as he did in opposing the motion to strike in the trial
court, that whether Stephenson meets the criteria to be an officer within the meaning of
section 1987, subdivision (b) “is a disputed factual issue on which Sinsay is entitled to
discovery, and one that should not have been resolved as a matter of law on an
anti-SLAPP motion based on a single self-serving [d]eclaration.” But Sinsay ignores his
evidentiary burden here—a plaintiff “ ‘may not rely solely on its complaint, even if
verified; instead, its proof must be made upon competent admissible evidence.’ ”
(Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931,
940.) Sinsay has offered none.
Moreover, he has offered no explanation as to why he was not able to conduct
discovery or seek relief from the automatic stay of discovery pursuant to section 425.16,
subdivision (g). We recognize that, in analyzing the second prong in an anti-SLAPP
context, “ ‘[t]he burden of establishing a probability of prevailing is not high.’ ” (Issa v.
Applegate, supra, 31 Cal.App.5th at p. 702.) However, the leeway afforded a plaintiff in
this context is not unlimited. Sinsay has failed to carry his burden of providing evidence
to support his claim that Stephenson was not an officer within the meaning of section
1987, subdivision (b).
b. Service at attorneys’ California offices
Sinsay argues that, even if Stephenson was an officer, her declaration was false
because, as a resident of North Carolina, she was not actually amenable to California
process. His theory is that nonresident witnesses, including those specified in section
1987, subdivision (b), are not obliged to attend trial as witnesses, pursuant to section
1989. That section provides: “A witness, including a witness specified in subdivision (b)
15
of Section 1987, is not obliged to attend as a witness before any court, judge, justice or
any other officer, unless the witness is a resident within the state at the time of service.”
(§ 1989.)
Sinsay relies on Amoco Chemical Co. v. Certain Underwriters at Lloyd’s of
London (1995) 34 Cal.App.4th 554. In that case, the plaintiff served a notice to attend
trial on the custodian of records of the overseas defendants by serving their attorneys of
record pursuant to section 1987, subdivision (b). (Amoco, at p. 557.) The defendants
contended they were not obliged to comply with the notice, pursuant to section 1989.
(Amoco, at p. 557.) The court agreed and held that section 1989 “means what it says—a
witness is not obliged to appear in court in California unless [he or she] is a resident of
the state at the time of service.” (Amoco, at p. 555.) For that reason, the “notice to attend
trial and bring documents (§ 1987, subds. (b), (c)) served on the custodian of records of a
nonresident party is void and unenforceable.” (Ibid.) As the court explained, “the
geographical reach of the notice to attend is explicitly limited by section 1989 . . . . [¶] It
follows ineluctably that the notice to attend was void on its face, that no objection was
required, and that the orders must be reversed. (Twin Lock, Inc. v. Superior Court (1959)
52 Cal.2d 754, 761-762 [no form of compulsion, including sanctions, may be used by the
court to compel a party who is an out-of-state resident to come to California].)” (Amoco,
supra, at p. 559.)
As Sinsay notes on appeal, the trial court did not address Amoco or section 1989 in
its order. Instead, it held that Sinsay had “ignore[d] the evidence that Stephenson has
authorized the Bank’s attorney to accept service and that her duties for the Bank include
appearing in person to testify when section 98 notice is served.” The court stated, “[t]he
statutory purpose of ensuring that the party against whom a section 98 declaration is
offered will have the opportunity to examine the maker of the statement under oath is
amply met by Stephenson’s amenability to service through the Bank’s counsel and her
16
undisputed commitment to appear if notice were given.” But the court did not address
the language in section 1989 or Amoco discussed above.
Nor do respondents address Amoco on appeal. Instead, they argue that because
Stephenson voluntarily consented to California service of process in a sworn declaration
to the court, her status as a nonresident is immaterial. As support, they cite two cases
which we find unpersuasive: Rockefeller Technology Investments (Asia) VII v.
Changzhou SinoType Technology Co., Ltd. (2020) 9 Cal.5th 125 (Rockefeller), and
Harrington v. Superior Court of County of Placer (1924) 194 Cal. 185 (Harrington).
In Rockefeller, the parties had entered into a contract in which they agreed to
submit to the jurisdiction of California courts, resolve disputes through California
arbitration, and provide notice and service of process to each other “through Federal
Express or similar courier.” (Rockefeller, supra, 9 Cal.5th at p. 132.) The California
Supreme Court explained that the “narrow question” it addressed was whether the Hague
Service Convention preempted the parties’ notice agreement, if the Convention provides
for a different method of service. (Ibid.) The court held that, “because the parties’
agreement constituted a waiver of formal service of process under California law in favor
of an alternative form of notification, the Convention does not apply.” (Ibid.)
The California Supreme Court emphasized that its conclusions with respect to
California law were narrow—when parties agree to California arbitration and their
agreement specifies the manner in which they shall be served, “that agreement supplants
statutory service requirements and constitutes a waiver of formal service in favor of the
agreed-upon method of notification.” (Rockefeller, supra, 9 Cal.5th at p. 145.) By
contrast, the court noted that where an arbitration agreement does not specify a method of
service, the statutory requirements of section 1290.4, subdivision (b) or (c)—which set
forth requirements for serving a petition to vacate an arbitration award—would apply.
(Rockefeller, supra, at pp. 144-145.) Notably, the court added that it expressed “no view
with respect to service of process in other contexts.” (Id. at p. 145.)
17
But Rockefeller did not address section 1989 or whether a nonresident’s
declaration, asserting amenability to service at her attorneys’ California offices in
compliance with section 1987, subdivision (b), is sufficient to compel her appearance at
trial.
Harrington does not support respondents’ position, either. In that case, the court
considered whether a party’s appearance in a condemnation action, despite not having
been served with a summons, was sufficient to give the court jurisdiction to act.
(Harrington, supra, 194 Cal. at p. 188.) The court held that it was, noting that a party
“may voluntarily submit himself to the jurisdiction of the court, or may, by failing to
seasonably object thereto, waive his right to question jurisdiction over him.” (Id. at
pp. 188-189.) But we are not considering whether Stephenson is subject to the
jurisdiction of the court, but rather whether service at her attorneys’ offices in California
pursuant to section 1987, subdivision (b) is sufficient to compel her appearance at trial,
notwithstanding section 1989.
Respondents also argue that Stephenson “was free to waive her rights under
[section 1989], a defensive statute designed to protect out-of-state witnesses like her from
being called into California state court.” But the question is whether filing and serving a
declaration such as Stephenson’s had the legal effect of negating section 1989—that is,
whether a nonresident’s declaration that service at her designated attorneys’ California
offices will oblige her to appear at trial actually means that she would be legally obliged
to appear. Respondents have not provided any authority in support of their position.
The California Supreme Court’s opinion in Meza is instructive on this point as
well. The court cautioned that “[t]he notice to attend mechanism” of section 1987,
subdivision (b) “does not oblige a person who resides outside of this state to appear at
trial, a limitation that applies to subpoenas, as well,” citing section 1989. (Meza, supra, 6
Cal.5th at p. 856.) In considering the defendants’ arguments about the interplay between
section 1989 and section 98, the court stated, “even if we were to assume that defendants
18
are correct in viewing the geographical limitations of section 1989 as applicable to
section 98[, subdivision] (a) affiants . . . [o]ur review of the history of section 98 yields
no significant indication that the Legislature was particularly concerned with encouraging
the use of affidavits from out-of-state residents.” (Meza, supra, at p. 865.) The court
added that, “[t]his case does not provide an occasion for determining whether, or under
what circumstances, an affiant could be ‘available for service of process’ under section
98[, subdivision] (a) if the relevant parties and persons in a particular case agree upon
service arrangements that deviate from statutory norms.” (Id. at p. 865, fn. 6.)
In short, the California Supreme Court did not decide in Meza that section 1989
applies to section 98, subdivision (a) declarants, although it appeared to suggest that the
Legislature likely did not intend to exempt the latter from the former. Such a
construction would be consistent with Amoco, as well.
In any event, we need not resolve this question here. As we explain, post, we
determine that, even if Stephenson’s statement in her declaration was incorrect—because
she could not be compelled to appear at trial pursuant to section 1987, subdivision (b),
through service at her designated attorneys’ offices in California—it was not a material
misrepresentation, which is required to establish a violation of the Rosenthal Act.
c. Materiality
As summarized above, “ ‘[i]n assessing FDCPA liability, we are not concerned
with mere technical falsehoods that mislead no one, but instead with genuinely
misleading statements that may frustrate a consumer’s ability to intelligently choose his
or her response.’ ” (Mandarich Law Group, supra, 87 Cal.App.5th at p. 622.) A
“material misrepresentation is one that could ‘cause the least sophisticated debtor to
suffer a disadvantage in charting a course of action in response to the collection effort.’ ”
(Id. at p. 626, quoting Tourgeman v. Collins Financial Services, Inc., supra, 755 F.3d at
p. 1121.) A “misrepresentation that is immaterial and thus not actionable under the
19
FDCPA fails to support a prima facie violation of [Civil Code] section 1788.17.”
(Mandarich Law Group, at p. 627.)
Sinsay argues that materiality is a fact-specific inquiry that should ordinarily be
left to the trier of fact, and “is not a factor to determine an anti-SLAPP motion.” But, as
this court recently held, the question of materiality is an issue of law for the court to
determine. (Mandarich Law Group, supra, 87 Cal.App.5th at pp. 629-630.) That
objective standard lends itself to independent assessment by the court and does not turn
on the credibility of extrinsic evidence. (Ibid.) Even in the context of an anti-SLAPP
motion, where the court does not weigh evidence or resolve conflicting claims, the court
“can properly ascertain the plaintiff’s showing at the second step . . . without weighing
the evidence or resolving factual disputes,” where the alleged misrepresentation is not
subject to conflicting factual claims. (Id. at p. 630.)
Sinsay also argues that the misrepresentations here were material. He relies on the
standard articulated above that a material misrepresentation is one that could cause the
“least sophisticated debtor to suffer a disadvantage in charting a course of action in
response to the collection effort.” He contends that the misrepresentations in the
Stephenson declaration rendered it invalid and confusing to the least sophisticated
consumer.
However, Sinsay does not explain in any way how or why the Stephenson
declaration would cause the least sophisticated debtor to chart any particular course of
action at all, much less one to his or her disadvantage. In arguing that he has standing to
bring his Rosenthal Act cause of action, Sinsay claims the Stephenson declaration caused
him to retain counsel. Yet, even if we were to construe that as an argument that the
hypothetical least sophisticated debtor would have retained counsel upon receiving the
Stephenson declaration, we are unable to perceive how that would constitute a
disadvantageous course of action.
20
As discussed, ante, “section 98’s limited exception to the hearsay rule is
predicated on the party or parties against whom a sworn statement is offered having an
opportunity to examine the maker of the statement under oath.” (Meza, supra, 6 Cal.5th
at p. 849.) Even if we were to accept Sinsay’s argument that the Stephenson declaration
was incorrect and invalid, the result would be that the declaration could not be offered
into evidence at trial. Sinsay has not explained how that would prompt the least
sophisticated debtor to pursue a disadvantageous course of action.
Sinsay has not carried his burden of demonstrating a probability of prevailing on
the merits of his Rosenthal Act cause of action.
For that reason, Sinsay has also failed to carry his burden with respect to his UCL
cause of action, which he concedes is based on, and derivative of, his Rosenthal Act
cause of action.
Because we determine that Sinsay failed to carry his burden in these respects, we
need not reach the parties’ alternative arguments presented on appeal.
B. Appeal of order granting attorney fees motions (H049889)
Sinsay argues on appeal that: (1) the attorney fees provisions in the Rosenthal Act
prevail over those in the anti-SLAPP statute, and the trial court incorrectly determined
that the latter applied; and (2) even if the anti-SLAPP statute’s attorney fees provision did
apply, the trial court abused its discretion in awarding $50,000 to the bank defendants and
$48,335 to the Kennard defendants.
1. Applicable law and standard of review
Section 425.16, subdivision (c)(1) provides that a prevailing defendant on a
special motion to strike “shall be entitled to recover” attorney fees and costs. (§ 425.16,
subd. (c)(1).) The purpose of this provision is to “ ‘compensat[e] the prevailing
defendant for the undue burden of defending against litigation designed to chill the
exercise of free speech and petition rights.’ ” (Maleti v. Wickers (2022) 82 Cal.App.5th
21181, 232, quoting Barry v. State Bar of California (2017) 2 Cal.5th 318, 327-328.)
“[T]he statute reflects a clear preference for awarding fees and costs to prevailing
defendants.” (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1018.) The
language of section 425.16, subdivision (c)(1) is mandatory and a trial court generally
must award fees to a defendant who successfully moves to dismiss a cause of action.
(Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 605.)
The Rosenthal Act contains its own attorney fees provision as well. Civil Code
section 1788.30, subdivision (c) provides: “In the case of any action to enforce any
liability under this title, the prevailing party shall be entitled to costs of the action.
Reasonable attorney’s fees, which shall be based on time necessarily expended to enforce
the liability, shall be awarded to a prevailing debtor; reasonable attorney’s fees may be
awarded to a prevailing creditor upon a finding by the court that the debtor’s prosecution
or defense of the action was not in good faith.” (See also Gouskos v. Aptos Village
Garage, Inc. (2001) 94 Cal.App.4th 754, 764 [award of fees under Rosenthal Act
unquestionably discretionary].)
When a special and general statute are in conflict, the former controls.
(Agricultural Labor Relations Board v. Superior Court (1976) 16 Cal.3d 392, 420;
§ 1859.) Whether statutes are in conflict and, if so, which one controls, present questions
of law which we review de novo. (Richmond Compassionate Care Collective v. 7 Stars
Holistic Foundation (2019) 33 Cal.App.5th 38, 45 (Richmond) [determination of legal
basis for an award of attorney fees is a question of law]; Department of Fair Employment
& Housing v. Cathy’s Creations, Inc. (2020) 54 Cal.App.5th 404, 412.)
We review the amount of the trial court’s fee award for abuse of discretion.
(Pasternack v. McCullough (2021) 65 Cal.App.5th 1050, 1055.)
22
2. Analysis
a. Conflicting statutes
Sinsay contends that the two statutes are in conflict. We note first that there do
not appear to be any cases that have considered a potential conflict between these two
statutes. “ ‘As in any case involving statutory interpretation, our fundamental task here is
to determine the Legislature’s intent so as to effectuate the law’s purpose. [Citation.]
We begin by examining the statute’s words, giving them a plain and commonsense
meaning. [Citation.]’ [Citation.] ‘ “When the language of a statute is clear, we need go
no further.” [Citation.] But where a statute’s terms are unclear or ambiguous, we may
“look to a variety of extrinsic aids, including the ostensible objects to be achieved, the
evils to be remedied, the legislative history, public policy, contemporaneous
administrative construction, and the statutory scheme of which the statute is a part.” ’ ”
(People v. Harrison (2013) 57 Cal.4th 1211, 1221-1222.) “Generally, the most reliable
indicator of legislative intent is the words of the statute. [Citation.] Accordingly, we turn
first to the plain language of the statutes at issue.” (Tan v. Appellate Division of Superior
Court (2022) 76 Cal.App.5th 130, 136.)
Taking that approach here, we determine the statutes are not in conflict. The plain
language of section 425.16, subdivision (c)(1) provides that a prevailing defendant on a
special motion to strike shall be entitled to recover its attorney fees and costs. (§ 425.16,
subd. (c)(1); Jackson v. Yarbray (2009) 179 Cal.App.4th 75, 92 [only those fees and costs
related to the special motion to strike, not the entire action, may be recovered].) Civil
Code section 1788.30, subdivision (c) is also clear on its face—reasonable attorney fees
may be awarded to a prevailing creditor upon a finding by the court that the debtor’s
prosecution or defense of the action was not in good faith. (Civ. Code, § 1788.30,
subd. (c).)
Section 425.16, subdivision (c)(2) also expressly enumerates certain other statutes
which are not subject to the anti-SLAPP statute’s mandatory fees provision. (§ 425.16,
23
subd. (c)(2) [excluding Gov. Code, §§ 11130, 11130.3, 54960, 54960.1].) However,
those exceptions do not include Civil Code section 1788.30, subdivision (c).
Accordingly, we need not look to any other extrinsic aids to interpret these statutes
and determine that they are not in conflict. Section 425.16, subdivision (c)(1) is limited
to the scope of a defendant’s special motion to strike. Civil Code section 1788.30,
subdivision (c), by contrast, applies to the entire action brought pursuant to the Rosenthal
Act. Thus, it is reasonably possible to harmonize these provisions without distorting their
apparent meaning. (State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th
940, 960; see also Richmond, supra, 33 Cal.App.5th at p. 45.)
Sinsay claims a conflict exists because the Rosenthal Act “was designed
specifically so that merely failing to prevail would not automatically subject a consumer
to paying the creditor’s attorney fees . . . .” But allowing a prevailing defendant to
recover fees on a special motion to strike, in an action brought pursuant to the Rosenthal
Act, does not mean that merely failing to prevail in the action would automatically
subject a debtor to paying attorney fees. If the defendant creditor did not bring a
successful special motion to strike, yet prevailed on the merits, section 425.16,
subdivision (c)(1) would not be available to the creditor.
Because we determine there is no conflict between the statutes, and section
425.16, subdivision (c)(1) applies here, we need not address Sinsay’s argument that his
action was brought in good faith.
b. Reasonable amount of attorney fees
Sinsay argues that, even if section 425.16, subdivision (c)(1) does apply, the trial
court abused its discretion by not substantially reducing the requested fees.
“ ‘[T]he fee setting inquiry in California ordinarily begins with the “lodestar,” i.e.,
the number of hours reasonably expended multiplied by the reasonable hourly rate. . . .
The lodestar figure may then be adjusted, based on consideration of factors specific to the
case, in order to fix the fee at the fair market value for the legal services provided.
24
[Citation.] Such an approach anchors the trial court’s analysis to an objective
determination of the value of the attorney’s services, ensuring that the amount awarded is
not arbitrary.’ ” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134 [permitting use of
lodestar adjustment method for § 425.16], quoting Serrano v. Priest (1977) 20 Cal.3d 25,
49.) “The reasonableness of attorney fees is within the discretion of the trial court, to be
determined from a consideration of such factors as the nature of the litigation, the
complexity of the issues, the experience and expertise of counsel and the amount of time
involved.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.)
Applying those standards here, we determine the trial court did not abuse its
discretion in awarding $50,000 to the bank defendants and $48,335 to the Kennard
defendants. The court first determined that counsel’s effective hourly rates of $377.54,
$370, and $270 for the various attorneys were reasonable, citing authority which provides
that the determination of the market rate is generally based on the rates prevalent in the
community where the court is located. (Syers Properties III, Inc. v. Rankin (2014) 226
Cal.App.4th 691, 700; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)
Next, the trial court determined that the $50,000 sought by the bank defendants for
132.5 hours of work was reasonable, citing authority for the proposition that a trial court
may award fees solely on the basis of the experience and knowledge of the trial judge.
(East West Bank v. Rio School Dist. (2015) 235 Cal.App.4th 742, 750; In re Marriage of
Cueva (1978) 86 Cal.App.3d 290, 300-301 [when trial court is informed of extent and
nature of services rendered, it may rely on its own experience and knowledge in
determining reasonable value; in many cases, trial court will be aware of nature and
extent of attorney’s services from the proceedings reflected in the file].)
The trial court also determined that the time spent by the Kennard defendants was
reasonable, given the nature of the issues presented. The court relied on authority with
analogous facts, and specifically identified the comparable hours spent, and tasks
performed, which supported the fee awards in those cases.
25
Sinsay argues on appeal that the hours spent by the bank defendants were
“outrageous,” “grossly excessive,” “literally incredible,” and “patently unreasonable.”
However, beyond the labels applied, Sinsay does not explain how the trial court’s
determination constituted an abuse of discretion, or analogize to any applicable authority.
We conclude the trial court applied the proper standards and considered the proper
factors and therefore did not abuse its discretion in determining the amount of fees.
Sinsay also argues that the trial court abused its discretion because the bank
defendants did not substantiate their hours or fees with any time records or other
documented evidence supporting counsel’s hourly rates. However, as the trial court
properly explained in its order, “[c]ourts have consistently concluded that attorney billing
records are not required to support a fee motion.” (Concepcion v. Amscan Holdings, Inc.
(2014) 223 Cal.App.4th 1309, 1324 [“It is not necessary to provide detailed billing
timesheets to support an award of attorney fees under the lodestar method.”];
Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 269 [no legal
requirement that attorney supply billing statements to support claim for attorney fees].)
Instead, as the court further explained, “an award of attorney fees may be based on
counsel’s declarations, without production of detailed time records.” (Raining Data
Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) Here, the bank defendants
satisfied that standard by submitting a declaration from their counsel describing the tasks
performed and time spent on their motion.
III. DISPOSITION
In appeal H049378, the order granting the motion to strike is affirmed.
In appeal H049889, the order awarding attorney fees and costs is affirmed.
Respondents are awarded their costs on appeal.
26
___________________________________
Wilson, J.
WE CONCUR:
__________________________________________
Bamattre-Manoukian, Acting P.J.
______________________________________
Danner, J.
Sinsay v. Bank of America, N.A., et al.
H049378, H049889