Filed 8/28/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
VELOCITY INVESTMENTS, LLC, C102846
Plaintiff, Cross-defendant and Respondent,
(Super. Ct. No.
v. STKCVUCC20190015406)
THONG HUU NGUYEN,
Defendant, Cross-complainant and
Appellant.
APPEAL from a judgment of the Superior Court of San Joaquin County, Barbara
A. Kronlund, Judge. Affirmed in part and reversed in part.
Consumer Law Center, Inc., Fred W. Schwinn, Raeon R. Roulston, and Matthew
C. Salmonsen for Appellant for Defendant, Cross-complainant and Appellant.
Messer Strickler Burnette, Ltd. and June D. Coleman for Respondent for Plaintiff,
Cross-defendant and Respondent.
California’s Fair Debt Buying Practices Act (Civ. Code, § 1788.50 et seq.; the
Debt Buyers Act or the Act) requires a debt buyer: (1) to have access to documentation
evidencing a consumer’s agreement to a debt before trying to collect the debt (the access
requirement) and (2) to attach that documentation to the collection complaint (the
attachment requirement). A debt buyer who violates the Act is liable to the consumer for
actual and statutory damages.
Here, debt buyer Velocity Investments, LLC filed a collection complaint (the
original complaint) against Thong Huu Nguyen. The original complaint attached a
1
standard borrower agreement bearing no clear link to Nguyen or to a specific debt.
Nguyen cross-complained against Velocity Investments, LLC and Velocity Portfolio
Group, Inc. (collectively Velocity),1 alleging it had violated both the access requirement
and the attachment requirement when it filed the original complaint. After filing an
amended complaint with two additional attachments, Velocity moved for summary
judgment or summary adjudication of the cross-complaint on four grounds: (1) Velocity
did not violate the access requirement; (2) Velocity did not violate the attachment
requirement; (3) Velocity’s failure to include additional documentation to the original
complaint was a bona fide error; and (4) Nguyen lacked standing to pursue his claims.
The trial court granted summary judgment based on the first three grounds. Nguyen
appeals.
We affirm in part and reverse in part. We conclude the trial court correctly
adjudicated the access requirement. But we disagree with the trial court’s disposition of
the attachment requirement. We hold: (1) the standard borrower agreement attached to
the original complaint did not evidence Nguyen’s agreement to the debt; (2) the
documents attached to the amended complaint do not eliminate the potential liability that
arose for failing to attach the requisite documentation to the original complaint;
(3) triable issues of fact exist as to whether Velocity is entitled to the bona fide error
defense; and (4) Nguyen has standing to pursue his claims. We reverse the summary
judgment entered in favor of Velocity but affirm the summary adjudication of the access
requirement.
Statutory references are to the Civil Code unless otherwise indicated.
1 For ease of reference, we refer to Velocity Investments, LLC and Velocity Portfolio
Group collectively as Velocity. We note that Velocity Portfolio Group’s responsibility
for the acts or omissions of Velocity Investments, LLC remains unsettled.
2
FACTUAL AND PROCEDURAL BACKGROUND
In November 2019, Velocity filed the original complaint against Nguyen to collect
an alleged unpaid debt. According to the original complaint: (1) Nguyen obtained a
credit account from WebBank, used that account to make purchases, and agreed to repay
WebBank; (2) in July 2018, Nguyen stopped making payments, leaving a balance of
$5,158.61; and (3) Velocity purchased the debt.
The original complaint claimed to include Exhibit A and Exhibit B. It referred to
Exhibit A as “a copy of [a] Billing Statement and/or Loan file provided to [Nguyen]
while the account was active, demonstrating that the debt was incurred by [Nguyen].”
The attached Exhibit A is a borrower agreement between “the borrower” and WebBank
governing the process by which the borrower may make a request for a loan from
WebBank through LendingClub and authorizing LendingClub to service any loan
obtained. The borrower agreement includes several pages of terms and a blank loan
agreement and promissory note. The original complaint also referred to Exhibit B as “a
copy of the Final Billing Statement and/or Transaction History.” No Exhibit B was
attached to the original complaint.
Nguyen filed an answer and a class action cross-complaint against Velocity. The
operative cross-complaint asserts three causes of action. The first alleges Velocity
violated the attachment requirement and the access requirement. The second and third
allege Velocity misrepresented its compliance with the Act, violating the Federal Fair
Debt Collection Practices Act (15 U.S.C. § 1692 et seq.; the Federal Debt Collection Act
or the Federal Act) and the Rosenthal Fair Debt Collection Practices Act (§ 1788 et seq.;
the Rosenthal Act).
In April 2023, Velocity filed an amended complaint that describes Exhibit A as “a
copy of Borrower’s Agreement and Promissory Note, demonstrating the debt was
incurred by [Nguyen]” and Exhibit B as “a copy of the Transaction History.” Exhibit A
includes the same borrower agreement that was attached to the original complaint as well
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as an executed loan agreement and promissory note for $8,000 with a specified interest
rate and monthly payments. Exhibit B is a six-page spreadsheet showing the status of an
account with the same ending digits described in the original and amended complaint’s
allegations.
Velocity then filed a motion for summary judgment on the cross-complaint,
arguing Nguyen could not establish his causes of action. The trial court granted the
motion and entered judgment in favor of Velocity as to the cross-complaint.
Nguyen timely appeals.
DISCUSSION
I. Standard of Review
“Summary judgment is designed to cut through the parties’ pleadings to determine
whether, despite their allegations, trial is necessary to resolve the dispute.” (Carver v.
Volkswagen Group of America, Inc. (2024) 107 Cal.App.5th 864, 876.) A trial court
must grant a motion for summary judgment “if all the papers submitted show that there is
no triable issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “[T]he party moving for
summary judgment bears an initial burden of production to make a prima facie showing
of the nonexistence of any triable issue of material fact.” (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 850.) A defendant satisfies its summary judgment burden by
showing that the plaintiffs cannot prove an essential element of their claim. (Id. at
pp. 853, 855.) If the defendants meet their burden of production, the plaintiffs must then
produce evidence establishing a prima facie showing that a triable issue of material fact
exists. (Id. at p. 850.)
“Summary adjudication works the same way as summary judgment, ‘except it acts
on specific causes of action or affirmative defenses, rather than on the entire
complaint.’ ” (Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 398.)
“ ‘A summary adjudication is properly granted only if a motion therefor completely
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disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of
duty.’ ” (Id. at pp. 398-399; see Code Civ. Proc., § 437c, subd. (f)(1).) “[R]egardless of
how pled in the complaint,” allegations may consist of two separate and distinct causes of
action. (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854
(Lilienthal).) In that case, “a party may present a motion for summary adjudication
challenging a separate and distinct wrongful act even though combined with other
wrongful acts alleged in the same cause of action.” (Id. at pp. 1854-1855.)
On appeal following a summary judgment or adjudication, we review the record
de novo to determine whether triable issues of material fact exist. (Magic Carpet Ride
LLC v. Rugger Investment Group, L.L.C. (2019) 41 Cal.App.5th 357, 362.) “[W]e apply
the same three-step analysis used by the [trial] court. We identify the issues framed by
the pleadings, determine whether the moving party has negated the opponent’s claims,
and determine whether the opposition has demonstrated the existence of a triable,
material factual issue.” (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.)
“[T]o the extent we consider the trial court’s interpretation and application of statutes, we
apply de novo review.” (Ibid.) “All doubts as to whether any material, triable issues of
fact exist are to be resolved in favor of the party opposing summary judgment.” (Wiz
Technology, Inc. v. Coopers & Lybrand LLP (2003) 106 Cal.App.4th 1, 10.)
II. The Debt Buyers Act
The Act was prompted by an influx of debt collection lawsuits filed by debt buyers
who purchased charged-off debts from creditors. (Assem. Com. on Judiciary, Analysis of
Sen. Bill No. 233 (2013-2014 Reg. Sess.) as amended May 15, 2013, p. 1.) Many of
those lawsuits were unsubstantiated by facts needed for the defendants to determine
whether they were the persons who owed the debt. (Ibid.) To address that problem, the
Act requires debt buyers to comply with certain documentation requirements, including
the access requirement and the attachment requirement. (§§ 1788.52, 1788.54, 1788.58.)
A debt buyer who violates the Act’s requirements is “liable to the consumer for …
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‘actual damages’ …and… ‘[s]tatutory damages.’ ” (Chai v. Velocity Investments, LLC
(2025) 108 Cal.App.5th 1030, 1036 (Chai); § 1788.62.)
Here, Nguyen’s first cause of action alleges Velocity violated the access
requirement and the attachment requirement. Velocity sought separate adjudication of
each requirement and Nguyen did not contest that separation. (See Code Civ. Proc.,
§ 437c, subd. (f)(1); Lilienthal, supra, 12 Cal.App.4th at pp.1854-1855.) We also address
each requirement separately.
III. The Access Requirement
A. Additional Background
In moving for summary adjudication of the access requirement, Velocity provided
evidence that it sent certain documents to its attorney two months before filing the
original complaint. Those documents included a transaction history, a Truth in Lending
Disclosure, and a loan summary. Nguyen did not dispute this fact. The loan summary
identifies Nguyen as the borrower, includes contact information for him, states the loan
issue date and “principle balance,” and lists various documents and the dates Nguyen
signed them. The Truth in Lending Disclosure also identifies Nguyen as the borrower
and sets forth the amount of the loan and the payments. And the transaction history sets
forth “Nguyen’s first 20 payments between November 2016-July 2018, the dates on
which those payments were made and the $8,000 loan amount.” Based on the fact that
Velocity possessed these documents and sent them to its attorney, Velocity argued it had
access to the requisite documents, thereby satisfying the access requirement.
B. Velocity showed there is no triable issue regarding the access requirement.
The access requirement consists of three sentences. (§ 1788.52, subd. (b).) The
first sentence prohibits a debt buyer from making a written statement to a debtor to
collect a consumer debt “unless the debt buyer has access to a copy of a contract or other
document evidencing the debtor’s agreement to the debt.” (Ibid.) The second sentence
specifies that “[i]f the claim is based on debt for which no signed contract or agreement
6
exists, the debt buyer shall have access to a copy of a document provided to the debtor
while the account was active, demonstrating that the debt was incurred by the debtor.”
(Ibid.) And the third sentence provides that this requirement is satisfied for a revolving
credit account by attaching the “most recent monthly statement recording a purchase
transaction, last payment, or balance transfer.” (Ibid.)
Here, neither party contends the second or third sentence applies. This leaves us
with the first sentence and whether there is a triable issue that Velocity had access to a
“document evidencing [Nguyen’s] agreement to the debt.” Nguyen contends only the
executed loan agreement and promissory note meets this standard. Applying de novo
review to this issue of statutory interpretation, we disagree. (Chai, supra,
108 Cal.App.5th at p. 1037.)
The first sentence requires the debt buyer to have access to the contract “or”
another document. The word “or” marks “ ‘ “an alternative such as ‘either this or
that.’ ” ’ ” (California Correctional Peace Officers Assn. v. Tilton (2011)
196 Cal.App.4th 91, 96.) This means the requisite document is not limited to the
contract. It must be a document that provides evidence of the debtor’s agreement to the
debt. We reject Nguyen’s contention that the alternative applies only when no signed
contract or agreement exists. In support of this contention, Nguyen cites the second
sentence, arguing this sentence clarifies when the alterative applies. We disagree. The
Legislature knows how to write language that qualifies an alternative, and it did not use
that language here. (See, e.g., § 1788.52, subd. (a)(5); Hayes v. Temecula Valley Unified
School Dist. (2018) 21 Cal.App.5th 735, 752.) Nguyen’s construction would also render
statutory language superfluous. If the second and third sentences specify the only
circumstance in which a document other than the contract will suffice, the language
following “or” in the first sentence is superfluous. We are obligated to avoid such a
construction. (People v. Valliant (2020) 55 Cal.App.5th 903, 909.)
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We next turn to whether Velocity met its burden to show it had access to a
“document evidencing [Nguyen’s] agreement to the debt.” We conclude it did. Nguyen
did not dispute the following facts: (1) the loan summary identifies Nguyen as the
borrower and sets forth the loan identification number, the date the loan was issued, and
the amount of the loan; (2) the Truth in Lending Disclosure sets forth the amount of the
loan and the payments; and (3) the transaction history sets forth the loan amount and the
dates of Nguyen’s first 20 payments. Considered together, these documents are sufficient
to evidence the fact that Nguyen agreed to the debt. Because Nguyen did not show a
triable issue in opposition, the court correctly granted summary adjudication as to the
access requirement.
IV. The Attachment Requirement
A. Additional Background
Section 1788.58 imposes requirements on a debt buyer complaint to collect a
consumer debt. The complaint must contain certain allegations regarding the debt, and
the buyer must comply with the attachment requirement by attaching “a copy of the
contract or other document described in” section 1788.52, subdivision (b). (§ 1788.58,
subds. (a), (b).) As relevant here, the “other document” described in section 1788.52,
subdivision (b) is a document evidencing the debtor’s agreement to the debt.
Velocity offered the following material facts regarding the attachment
requirement: (1) the borrower agreement attached to the original complaint “sets forth
terms and conditions for the lending arrangement with Nguyen, including authorizing
LendingClub to act as attorney in fact to sign [the borrower agreement] and [the lending
agreement and promissory note]” on behalf of Nguyen; (2) the borrower agreement “sets
forth terms and conditions governing the promissory note transaction”; (3) the borrower
agreement contains an exemplar loan agreement, containing the same terms as the signed
loan agreement and promissory note; (4) the borrower agreement outlines the process to
obtain the loan, the parties to the loan and their responsibilities, as well as other terms and
8
conditions; (5) the failure to attach the transaction history to the original complaint was a
clerical error; (6) Velocity retained a law firm to litigate the case against Nguyen and
relied on the firm’s experience and expertise as collection attorneys; (7) the firm
automated its procedures in preparing the collection lawsuit so as to automatically attach
the transaction history to the original complaint; (8) the firm attorney who signed the
complaint reviewed the complaint for completeness before signing and filing in
accordance with a checklist; and (9) despite these reasonable procedures, the firm
attorney inadvertently missed that the transaction history was not attached to the
complaint.
Nguyen largely agreed with these facts but disputed two that are relevant to our
disposition: (1) whether the exemplar loan agreement and promissory note contained the
same terms as the signed version; and (2) whether the complaint preparation procedures
were reasonable. Nguyen argued the exemplar loan agreement and promissory note did
not contain the “loan amount, principal and interest payment amounts, member ID, or
relevant dates.” And he argued a reasonable jury could find there were either no
procedures to prevent the specific error at issue or that the procedures were not
reasonably adopted.
B. The document attached to Velocity’s original complaint did not evidence
Nguyen’s agreement to the debt.
Nguyen contends the borrower agreement attached to the original complaint
violates the attachment requirement because it did not evidence his agreement to the debt.
We agree.
The document attached to the original complaint states “the borrower” agrees to
certain terms by electronically signing the agreement, but the document bears no
indication that Nguyen signed the agreement, electronically or otherwise. And the
document does not otherwise identify Nguyen as “the borrower” or indicate when he
agreed to a debt or how much debt he agreed to. In fact, the terms of the agreement
9
indicate the agreement is a precursor to any debt. The agreement specifies that the
borrower can request an installment loan, and if the borrower requests such a loan, the
borrower agrees to repay the loan. The agreement also allows the borrower to post a
“qualifying loan request,” which LendingClub investors then review and choose whether
to invest. The agreement goes on to specify in all capital letters that WebBank does not
guarantee that the borrower will receive a loan as a result of posting a request. These
terms make clear that the borrower agreement is a precursor to a debt.
Velocity contends the borrower agreement is sufficient to evidence Nguyen’s
agreement to the debt because Nguyen conceded this document “sets forth [the] terms
and conditions for the lending arrangement with Nguyen, including authorizing
LendingClub to act as attorney in fact to sign the Lending Agreement and Promissory
Note” on his behalf. Velocity also contends the borrower agreement includes an
“exemplar Loan Agreement and Promissory Note containing the exact same terms as the
executed Loan Agreement and Promissory Note.” We are not persuaded. The “lending
arrangement” detailed in the agreement does not obligate Nguyen to agree to a debt, and
LendingClub is not empowered to act as attorney in fact for Nguyen until Nguyen
requests a loan. As to the exemplar loan agreement and promissory note located within
the borrower agreement, Nguyen disputed whether that document contained the exact
same terms as the executed document. Nguyen correctly notes that blanks appear in the
exemplar for the borrower member ID, the amount of the loan, the date of the loan, the
interest rate, and the payments and payment due dates. Given the absence of these
material terms, the borrower agreement does not evidence Nguyen’s agreement to the
debt.
C. The amended complaint does not eliminate Velocity’s potential liability.
After Nguyen filed the cross-complaint, Velocity filed an amended complaint that
attached the transaction history and the executed loan agreement and promissory note.
Based on this amendment, the trial court concluded any “error was ultimately corrected.”
10
Nguyen contends this conclusion was incorrect because the violation of the attachment
requirement was complete when the original complaint was filed and the amended
complaint cannot cure that violation. We agree.
The Rosenthal Act is instructive. It is modeled after the Federal Debt Collection
Act. (Paredes v. Credit Consulting Services, Inc. (2022) 82 Cal.App.5th 410, 425.) It
regulates the conduct of debt collectors2 in collecting consumer debts and imposes
damages for violations. (Ibid.; § 1788.30, subds. (a), (b).) Notably, and unlike the Debt
Buyers Act, the Rosenthal Act provides an opportunity to cure a violation. (§ 1788.30,
subd. (d).) We construe the Legislature’s omission of that opportunity from the Debt
Buyers Act to mean it did not intend to offer it. (See In re Jennings (2004) 34 Cal.4th
254, 273 [where statutes involving similar issues contain language demonstrating the
Legislature knows how to express its intent, “ ‘the omission of such provision from a
similar statute concerning a related subject is significant to show that a different
legislative intent existed with reference to the different statutes’ ”].)
This construction is consistent with interpretations of the Federal Debt Collection
Act that also provides no cure opportunity. The Federal Debt Collection Act prohibits
debt collectors from sending misleading communications in connection with the
collection of a debt. (15 U.S.C. § 1692e.) In Donohue v. Quick Collect, Inc. (9th Cir.
2010) 592 F.3d 1027, the Ninth Circuit treated a complaint as a communication subject to
that prohibition and rejected the argument that the complaint could simply be amended to
correct a representation. (Id. at p. 1032, fn. 1.) The district court in Eads v. Wolpoff &
2 Under the Rosenthal Act, a debt collector is a person who engages in the collection of
consumer debt. (§ 1788.2, subd. (c).) A debt buyer can also be a debt collector. (See
Cavalry SPV I, LLC v. Watkins (2019) 36 Cal.App.5th 1070, 1085-1086; § 1788.50 [debt
buyer is a person or entity that is regularly engaged in the business of purchasing
charged-off consumer debt for collection purposes, whether it collects the debt itself,
hires a third party for collection, or hires an attorney-at-law for collection litigation].)
11
Abramson, LLP (W.D. Tex. 2008) 538 F.Supp.2d 981 reached the same conclusion,
holding that a debt collector could be liable under the Federal Debt Collection Act for an
error in a petition even though the debt collector amended the petition to correct the error.
(Id. at p. 986.) Here, the Debt Buyers Act requires the complaint in a collection action to
contain certain allegations and comply with the attachment requirement. Like the Federal
Debt Collection Act, the Debt Buyers Act does not provide a cure opportunity. We hold
that a debt buyer who violates the complaint requirements of the Act cannot avoid
liability by simply amending the complaint to correct the violation.3
D. The trial court erred by concluding Velocity was entitled to the bona fide
error defense as a matter of law.
Nguyen contends the trial court erred by concluding Velocity was entitled to the
bona fide error defense as a matter of law on summary judgment. We agree.
The Debt Buyers Act provides debt buyers with an affirmative defense when a
violation of the Act “was not intentional and resulted from a bona fide error[] and
occurred notwithstanding the maintenance of procedures reasonably adopted to avoid any
error.” (§ 1788.62, subd. (e).) The Federal Debt Collection Act and the Rosenthal Act
provide similar defenses. The Federal Debt Collection Act allows a debt collector to
avoid liability if the debt collector shows that “the violation was not intentional and
resulted from a bona fide error notwithstanding the maintenance of procedures
reasonably adapted to avoid any such error.” (15 U.S.C. § 1692k(c).) And the Rosenthal
Act allows a debt collector to avoid liability if the debt collector shows “the violation was
3 The amended complaint may supersede the original complaint for purposes of
Velocity’s debt collection suit. (State Compensation Ins. Fund v. Superior Court (2010)
184 Cal.App.4th 1124, 1130-1131.) But that supersession has no bearing on the merits of
Nguyen’s cross-complaint. (See Trinity Risk Management, LLC v. Simplified Labor
Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1004 [cross-complaint is a separate
action that is not affected by amendment of complaint].)
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not intentional and resulted notwithstanding the maintenance of procedures reasonably
adapted to avoid any such violation. (§ 1788.30, subd. (e).)
Federal cases interpreting this language have held that whether procedures are
reasonably adapted is a fact-intensive question often inappropriate for resolution on
summary judgment. (See Wilhelm v. Credico, Inc. (8th Cir. 2008) 519 F.3d 416, 421;
Welker v. Law Office of Daniel J. Horwitz (S.D. Cal. 2010) 699 F.Supp.2d 1164, 1171.)
These cases are persuasive. (Raines v. U.S. Healthworks Medical Group (2023)
15 Cal.5th 268, 282 [state courts commonly find federal court interpretations of federal
laws that use similar language to be persuasive authority].) California courts interpreting
reasonableness standards have similarly held that reasonableness is question of fact to be
decided by a jury unless there is no room for a reasonable difference of opinion.
(California Fair Plan Assn. v. Superior Court (2004) 115 Cal.App.4th 158, 164; Terry v.
Atlantic Richfield Co. (1977) 72 Cal.App.3d 962, 966; Fadeeff v. State Farm General Ins.
Co. (2020) 50 Cal.App.5th 94, 102.)
Here, Velocity’s procedures were as follows: (1) Velocity retained a law firm to
litigate the case against Nguyen and relied on the firm’s experience and expertise as
collection attorneys; (2) the law firm automated its procedures in preparing the complaint
so as to automatically attach the transaction history as a second exhibit to the complaint;
and (3) a law firm attorney reviewed the complaint for completeness prior to signing and
filing in accordance with a checklist. A reasonable juror could find these procedures
were not reasonably adopted to avoid the error. Multiple questions on reasonableness
come to mind. Was it reasonable for Velocity to completely rely on a law firm for
compliance with the Act’s pleading requirements? (See Castellanos v. Portfolio
Recovery Assocs., LLC (S.D.Fla. 2017) 297 F.Supp.3d 1301, 1319 [defendant’s complete
reliance on outside counsel to ensure defendant did not violate collection law raised
triable issue of fact].) How did the firm’s automation procedures work? (See Reichert v.
National Credit Systems, Inc. (9th Cir. 2008) 531 F.3d 1002, 1007 [“the procedures
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themselves must be explained, along with the manner in which they were adapted to
avoid the error”]; Parker v. Peters & Freedman, LLP, No. 17-cv-00667, 2018 U.S. Dist.
LEXIS 179365, 2018 WL 5904169, at *12 (C.D. Cal. Apr. 9, 2018) [finding defendant’s
reference to an employee training program insufficient because it “does not provide the
[c]ourt with any facts as to how these programs are designed to avoid the specific error at
issue”].) Is reliance on one person to check a complaint for completeness reasonably
adopted to avoid the error? (See Jenkins v. Heintz (7th Cir. 1997)124 F.3d 824, 834 [debt
collector used an eight-step, highly detailed pre-litigation review process to ensure
accuracy and review the work of its employees].) These questions lead us to conclude
there is a triable issue regarding the complaint preparation procedures.
E. We cannot summarily adjudicate vicarious liability or Nguyen’s claims
under the Federal Debt Collection Act and the Rosenthal Act.
In moving for summary judgment, Velocity included the material fact that
Velocity Portfolio Group, Inc. had no involvement with, and was not a party to, the
original complaint. But Velocity did not present this fact as a separate issue that could be
summarily adjudicated. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 744;
Cal. Rules of Court, rule 3.1350(b) & (d)(1)(A).) And adjudication of this fact does not
dispose of an entire cause of action. (Code Civ. Proc., § 437c, subd. (f)(1); Hindin v.
Rust (2004) 118 Cal.App.4th 1247, 1256.) For these reasons, we cannot address whether
Velocity Portfolio Group, Inc. can be held liable for the alleged violations.
Velocity contends we can dispose of the causes of action under the Federal Act
and the Rosenthal Act because those causes of action concern only whether Velocity
violated the access requirement. Velocity did not take this position in the trial court. In
fact, Velocity acknowledged that the attachment requirement was the basis of the Federal
Act and Rosenthal Act claims. We decline to consider Velocity’s new position for the
first time on appeal. “ ‘A party is not permitted to change his position and adopt a new
and different theory on appeal. To permit him to do so would not only be unfair to the
14
trial court, but manifestly unjust to the opposing litigant.’ ” (People v. Venice Suites,
LLC (2021) 71 Cal.App.5th 715, 724.)
F. Nguyen has standing to pursue his claim.
Velocity contends it is nevertheless entitled to summary adjudication on the
attachment requirement because Nguyen lacks standing, urging us to split from Chai,
supra, 108 Cal.App.5th at p. 1037, Guracar v. Student Loan Solutions, LLC (2025)
111 Cal.App.5th 330, 347 (Guracar), and Kashanian v. National Enterprise Systems, Inc.
(2025) 114 Cal.App.5th 1037, 1045-1046 (Kashanian). We decline to make that split.
Article III of the United States Constitution restricts federal judicial power,
limiting that power to resolution of cases and controversies. (TransUnion LLC v.
Ramirez (2021) 594 U.S. 413, 423.) This federal case-or-controversy limitation requires
a plaintiff to demonstrate a concrete, particularized injury rather than simply invoking a
statutory violation. (Id. at p. 426.) But California courts are not constrained by this
restriction. (Kashanian, supra, 114 Cal.App.5th at p. 1047.) The Legislature can
“authorize public interest lawsuits by a plaintiff even if that plaintiff has not been injured
by the claimed violation.” (Limon v. Circle K Stores Inc. (2022) 84 Cal.App.5th 671,
693-694.) “Consequently, where a cause of action is based on a California statute,
standing is a ‘a matter of statutory interpretation.’ ” (Parsonage v. Wal-Mart Associates,
Inc. (2026) 118 Cal.App.5th 399, 411.)
The Debt Buyers Act authorizes private enforcement of its requirements, “making
a debt buyer liable to the consumer for ‘the sum of’ (1) ‘[a]ny actual damages’ from the
debt buyer’s violation of the Act and (2) ‘[s]tatutory damages’ between $100 and
$1,000.” (Chai, supra, 108 Cal.App.5th at p. 1036, citing § 1788.62, subd. (a).) The
Debt Buyers Act also provides for “ ‘additional damages’ if a debt buyer sued in a class
action ‘engaged in a pattern and practice’ of violating the Act.” (Chai, at p. 1038, citing
§ 1788.62, subd. (b).) As Chai concluded, the “Legislature’s description and treatment of
these three categories of damages persuade us that it did not intend to require actual
15
damages for standing to sue.” (Chai, at p. 1038; see Guracar, supra, 111 Cal.App.5th at
p. 338 [following Chai].) “ ‘[T]he sum of’ actual and statutory damages signifies that
actual damages only add to a debt buyer’s liability under the Act, not that the absence of
actual damages negates [that liability].” (Chai, at p. 1038.) Even if actual damage does
not exist, an offending debt buyer is still liable to the consumer for statutory damages
“not less than [$100] nor greater than [$1,000].” (Ibid., citing § 1788.62, subd. (a)(2).)
Velocity contends the Legislature’s use of the term “damages” instead of
“penalties” in the Act is significant because damages are meant to compensate plaintiffs
for the harm they have suffered. We concur with Guracar that this contention is
misguided. There is an “obvious flaw in [the] logic” of assuming that statutory damages
must be compensatory. (Guracar, supra, 111 Cal.App.5th at p. 345; see also Yeh v.
Barrington Pacific, LLC (2026) 117 Cal.App.5th 1303, 1322 [“semantic distinction
between ‘damages’ and ‘penalties’ is not dispositive of standing”].) Statutory damages
may “ ‘serve to motivate compliance with the law and punish wrongdoers.’ ” (Guracar,
at p. 345.) That motivation explains why statutory damages under the Act cannot be less
than $100. (Ibid., citing § 1788.62, subd. (a)(2).)
Velocity also contends the Chai and Guracar interpretations are inconsistent with
the Act’s legislative history. But there is no need to go down this analytical path.
Recourse to a statute’s legislative history is not necessary when the statutory language is
clear as it is here. (Chai, supra, at 108 Cal.App.5th at p. 1040 [the Act unambiguously
authorizes suit for violation of statutory rights]; Switzer v. Wood (2019) 35 Cal.App.5th
116, 131 [resort to legislative history unwarranted when statutory language is clear and
unambiguous].)
Velocity also urges us to follow the reasoning in Limon, supra, 84 Cal.App.5th
671 and Muha v. Experian Information Solutions, Inc. (2024) 106 Cal.App.5th 199. But
those cases interpreted the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) that
prescribes statutory damages as a disjunctive alternative to “actual damages.” (Chai,
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supra, 108 Cal.App.5th at p. 1042; Limon, at pp. 688-707; Muha, at pp. 206-210.) By
contrast, the Debt Buyers Act prescribes statutory damages in addition to any actual
damages. (Chai, at p. 1042.)
We reach the same conclusions regarding Nguyen’s standing under the Federal
Debt Collection Act and the Rosenthal Act. Within the Rosenthal Act, section 1788.17
incorporates provisions of the Federal Act, specifically subjecting debt collectors to the
Federal Act’s remedies under Title 15, section 1692k of the United States Code (section
1692k). Those remedies allow plaintiffs to recover an amount equal to the sum of
“(1) any actual damage[s] sustained” and (2) “such additional damages as the court may
allow[] but not exceeding $1,000.” (§ 1692k(a)(1) & (2)(B).) Federal courts have
interpreted the “additional damages” in section 1692k as statutory damages that are
available without proof of actual damages. (See, e.g., Baker v. G. C. Services Corp. (9th
Cir. 1982) 677 F.2d 775, 776; Keele v. Wexler (7th Cir. 1998) 149 F.3d 589, 593.)
Consistent with those interpretations and our interpretation of the Debt Buyers Act, we
construe this language in section 1692k and incorporated into section 1788.17 to allow
the award of damages to a debtor even in the absence of actual damage. (Kashanian,
supra, 114 Cal.App.5th at p. 1045; Guracar, supra, 111 Cal.App.5th at p. 348.)
Velocity contends the Federal Act did not “deputize private citizens to bring
enforcement actions against alleged violators of the [Federal Act],” citing the statute that
authorizes the Federal Trade Commission to enforce the Federal Act. In Velocity’s view,
the Federal Act delegates enforcement of its provisions to the Federal Trade Commission.
Velocity is mistaken. To be sure, the Federal Act authorizes the Federal Trade
Commission and other federal agencies to enforce its provisions, but it “also authorizes
private civil actions against debt collectors.” (Rotkiske v. Klemm (2019) 589 U.S. 8, 10,
citing § 1692k(a).)
Velocity also contends the Legislature must have had a different intention under
the Rosenthal Act because the Legislature imposed a “penalty” for willful and knowing
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violations its provisions. (§ 1788.30, subd. (b).) Specifically, Velocity contends the term
“penalty” in section 1788.30 indicates the Legislature intended to compensate plaintiffs
for injuries sustained by a violation via the Federal Act. Kashanian rejected the same
argument. (Kashanian, supra, 114 Cal.App.5th at p. 1047.) We do the same. Section
1788.17 makes a debt collector subject to the section 1692k remedies “[n]otwithstanding
any other provision of law.” (Kashanian, at p. 1047.) The “notwithstanding” phrase
means “the Legislature intended the section 1692k remedies to have the same meaning
under the Rosenthal Act as they do under the [Federal Act] – statutory damages are
intended as penalties to deter violations and no injury is required to seek those damages.”
(Kashanian, at p. 1047.)
For these reasons, we conclude Nguyen has standing to pursue his claims.
DISPOSITION
The summary judgment entered in Velocity’s favor is reversed. Summary
adjudication of the access requirement is affirmed. The summary adjudications of the
attachment requirement and the derivative causes of action under the Federal Debt
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Collection Act and the Rosenthal Act are reversed. Each party shall bear its own costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(3) & (5).)
/s/
MESIWALA, J.
We concur:
/s/
KRAUSE, Acting P. J.
/s/
BOULWARE EURIE, J.
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