1 Filed 7/2/13 Lee v. Am erican Agencies CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

FREIDA LEE, Plaintiff and Appellant,

v. AMERICAN AGENCIES, et al., Defendants and Respondents. A133016, A133752
(Alameda County Super. Ct. No. RG09477598)

Plaintiff Freida Lee appeals a judgment and attorney fee award entered after the trial court granted summary judgment to defendants American Agencies, American Credit Agencies, Inc. (ACA, Inc.), and ACA Receivables Co., LLC (ACA Receivables) in this purported class action for unfair debt collection practices. She contends the trial court erred in granting summary judgment on her claims under the Rosenthal Fair Debt Collection Act (Civ. Code, § 1788 et seq.) and the federal Fair Debt Collection Practices Act (15 U.S.C. § 1692 et seq.) (FDCPA) and in awarding attorney fees to defendants. We shall reverse the award of attorney fees and otherwise a ffirm the judgment.
I. BACKGROUND
A. The Allegations of the Complaint Plaintiff alleged in the operative complaint that on or about September 24, 2008, defendant American Agencies se nt her an initial debt collection letter claiming she owed $831.06 on a past due bill from a third party and stating American Agency had purchased
the debt from another debt collector. The le tter said nothing about how or when the debt was incurred. In response, plaintiff sent a letter disputing the debt and requesting the2 original name and address of the creditor and verification of the debt. She alleged American Agencies did not respond to the reque st for verification and that it continued to attempt to collect the debt. This attempt, according to the complaint, included reporting plaintiff’s debts to consumer credit reporting agencies. According to plaintiff, defendants had a practice of not validati ng or verifying debts upon c onsumer request, but instead continuing to call purported debtors and fa iling to ensure adverse credit reporting was discontinued. Plaintiff also alleged both that defendants were either parents and
subsidiaries of each other and that th ey were in reality one company.
Plaintiff asserted causes of action for violation of the Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788.17; see also 15 U. S.C. § 1692g), violation of California’s unfair competition law (Bus. & Prof. Code, § 17200), and declaratory and injunctive relief.
B. Motion for Summary Judgment Defendants moved for summary judgme nt, arguing that (1) they were not obligated to verify the debt if they disc ontinued collection effort s; (2) they did not continue collection efforts after plaintiff reque sted verification of the debt; and (3) they did not report the debt to credit bureaus after plaintiff requested verification. The evidence submitted in support of th e motion for summary judgment included the original letter from Ameri can Agencies demanding payment of a debt, the original
creditor of which was “PAC IFIC BELL TEL/dba SBC:CALI F.” The letter, which was dated September 24, 2008, notified plain tiff that “the above account, which was previously purchased, has now been assigne d to this office for collection by Asset Acceptance, LLC,” and stated, “If you notify this office in writing within 30 days from receiving this notice that you dispute this de bt, or any portion thereof, this office will
obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor if
different from the current creditor.”3 In a letter to American Agencies dated October 3, 2008, plaintiff responded: “I dispute the above purported debt. I request th e original name and address of the original creditor and verification of the debt. I spec ifically request any document that shows I have any such obligation. [¶] If you have any question, do not hesitate to call.” Leticia Holguin called plain tiff on October 16, 2008. Plaintiff did not answer the telephone, and Holguin left a message. In a declaration, she stated : “I attempted to contact Ms. Lee on October 16, 2008, pursuant to her expre ss invitation to contact her, and solely for the purposes of inquiring about Ms. Lee’s request for verification. This attempt to contact Ms. Lee was not made for collection purposes.”
Plaintiff sent another letter to Ameri can Agencies, dated December 8, 2008, stating, “On October 3, 2008, I disputed the above purported debt, requesting the original name and address of the original creditor an d verification of the debt. I specifically requested any document that shows I have any such obligation. [¶] I have heard nothing from you. Please note the dispute and provide the verification forthwith. [¶] If you have any questions, do not he sitate to call.” In response to plaintiff’s December 8, 2 008 letter, Holguin tried to contact plaintiff by telephone on December 24, 2008, and January 6, 2009, in order to inquire about her request for verification. Plaintiff did not answer the calls, and Ho lguin did not leave a

message. In her deposition, when asked if Am erican Agencies had contacted her by telephone, plaintiff testified that she did not know if they had contacted her, that someone left messages on her main switchboard line, th at the caller did not leave a name, that she
called back to find out who the calls were for, and that “t hey couldn’t give [her] any
information.”
The debt collection account was cancelled on April 3, 2009. Craig Impelman, the Vice President of Op erations at ACA Receivables Co., LLC, dba American Agencies, stated in a declaration that neither ACA Receivables nor ACA,4 Inc. ever reported plaintiff’s allege d debt to any credit reporting agency. 1 Plaintiff’s credit report showed that the alleged debt had been reported to a credit agency by November 2007, and that plaintiff disputed the debt. Asset Acceptance, Inc. was named
as the creditor. Impelman also declared that “ACA Receivables Company, LLC dba American Agencies is the only entity that has ever had any involvement with Plaintiff Freida Lee’s collection account.” According to Impelman, Am erican Agencies is a fictitious business name of ACA Receivables. ACA, Inc. pr eviously owned the American Agencies
fictitious business name. In opposition to the motion for summary judgment, plaintiff submitted evidence that if a customer disputed a debt and defendants decided to cease and desist from collection, the macro “,496” sh ould be used. The collection notes on plaintiff’s account do not reflect the macro “,496” to “cease a nd desist.” A document American Agencies used in training stated that if a consumer di sputed the validity of a debt within 30 days of receiving a validation notice, federal law requi red the debt collector to obtain actual
verification of the debt from the creditor and ma il it to the consumer, as well as the name and address of the original creditor if requested by the consumer. Th e document also said that if the consumer disputes the debt, a de bt collector should either “abandon collection efforts and close the account,” or “cease colle ction action until verification of the debt
has been obtained fro m the creditor and mailed to the consumer.” If the consumer disputed the debt within the 30-day valida tion period, according to the training document, “American Agencies ceases all collection effo rts and requests ‘full backup’ on the debt from the creditor. . . . [¶] Upon receipt, American Agencies then mails this information to the consumer at which point collection efforts may be resumed.” Plaintiff submitted a portion of the Code of Ethics and Co de of Operations of the
Association of Credit and Coll ection Professionals, which provi des that upon receipt of a

1 In verifying responses to interrogatories, Impelman ha d identified himself as “VP of Operations” of American Agenci es, ACA, and ACA Receivables.5 written request for verification of a debt, a debt collector should suspend collection activities and provide verification of the debt. If the debt collector does not or cannot provide verification of the debt, the debt co llector should cease al l collection efforts; “[d]irect or request removal of the item from the consumer’s credit report or report the item as disputed to the appropriate credit re porting agency”; when closing and returning an account, notify the credit gran tor, client, or owner of the debt that collection activity was terminated due in inability to verify the debt; and if re quested by the consumer in writing, notify the consumer that coll ection efforts have been terminated.
Plaintiff also submitted evidence that Ho lguin testified in her deposition that she called plaintiff to follow up on her dispute an d left a message asking plaintiff to return
her call. She had been trained that when she called about a disputed account to attempt to collect a balance, she should provide her own name, the na me of the company, and a phone number when leav ing messages. She had been trai ned that in handling a disputed account, she should “go over [the] dispute and see what they’re actually disputing so we can get the information to them [in] a timely manner.” Holguin testified she could also try to settle the matter. Plaintiff stated in a declara tion that she did not perceive American Agencies’ telephone calls to be de bt collection efforts at the time they were made, but that after reading the depositions and discovery response s, she had concluded they were debt collection efforts. The trial court granted the motion for summary judgment. As to defendant American Agencies, it accepted the evidence that American Agencies was a fictitious business name owned by ACA Receivables, and ruled that plaintiff’s claims lay only against the owner of the fictitious business name. In granting summary judgment as to ACA, Inc., the trial court relied on the evidence that ACA, Inc.. sold the name “American Agencies” to ACA Receivables in 2005 and that it did not enga ge in debt collection. The
court found that defendants did not have an independent duty to pr ovide verification of the debt if they did not con tinue collection activities, and th at they did not engage in collection activity after plaintiff requested ve rification of the debt. The court denied plaintiff’s request for a continuance to obtai n additional discovery to oppose the motion.6 C. Attorney Fees Defendants moved for attorney fees under Civil Code section 1788.30, subdivision (c), which authorizes an award of attorney fees “to a preva iling creditor upon a finding by the court that the debtor’s pr osecution or defense of the action was not in good faith.” The trial court awarded fees against pl aintiff in the amount of $66,818.00.
II. DISCUSSION
A. Standard of Review on Summary Judgment “We review a grant of summary judgment de novo. [Cit ation.] In performing our de novo review, we employ a th ree-step analysis. ‘First, we identify the issues raised by the pleadings. Second, we determine whet her the movant established entitlement to summary judgment, that is, whether the mova nt showed the opponent could not prevail on any theory raised by the pleadings. Third, if the movant has met its burden , we consider whether the opposition raised triable issues of fact .’ [Citations.] . . . Any
evidence we evaluate is viewed in the light most favorable to the plaintiff as the losing party; we strictly scrutinize the defendant’s evidence and resolve any evidentiary doubts or ambiguities in the plaintiff’s favor. [Citation.]” ( Barber v. Chang (2007) 151 Cal.App.4th 1456, 1462–1463.) In opposing a motion for su mmary judgment, plaintiffs “ ‘may not rely upon the mere allegations or denials of [their] pleadings,’ but must ‘set forth the specific facts showing that a triable issue of material fact exists.’ [Citation.] ‘T he party opposing the summary judgment must make an independen t showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a tria ble question of fact if the m oving party’s evidence, standing alone, is sufficient to entitle the party to judgment. [Citation.] To avoid summary judgment, admissible evidence pres ented to the trial court, not merely claims or theories, must reveal a triable, materi al factual issue. [Citation.] Moreover, the opposition to summary judgment will be deem ed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation.’ [Citation.]” ( Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 635.)7 B. Duty to Verify Debt We first examine whether there is any le gal merit to plaintiff’s contention that defendants had a statutory obl igation to verify the validity of the debt after they determined not to proceed w ith collection. Civil Code section 1788.17 provides in pertinent part, “every debt collector collecti ng or attempting to collect a consumer debt shall comply with the provisions of Section 1692b to 16 92j, inclusive, of, and shall be subject to the remedies in Section 1692k o f, Title 15 of the United States Code.” Our state statute thus incorporat es portions of the FDCPA. Plaintiff alleged defendants violated the state statutes by failing to comply with the provisions of the FDCPA requiring verifica tion of debts and by c ontinuing to collect disputed debts. The FDCPA, specifically se ction 1692g of title 15 of the United States Code (hereinafter § 1692g) requires a debt collector, with certain exceptions, to send to the consumer a written notice containing, inte r alia, (1) “a statement that unless the consumer, within thirty days af ter receipt of the notice, dis putes the validity of the debt, or any portion thereof, the debt will be assume d to be valid by the debt collector;” (2) “ a statement that if the consumer notifies the debt collector in writing w ithin the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector;” and (3) “a statement that, upon the consumer’s written reque st within the thirty-d ay period, the debt collector will provide the consumer with the na me and address of the original creditor, if different from the current creditor.” (§ 1692g, subd. (a), italics added.) Under section 1692g, if the consumer no tifies the debt collect or within 30 days that a debt is disputed, or requests the na me and address of the original credit, “ the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of th e debt or a copy of a judgment , or the name and address of the original credito r, and a copy of such verification or judgment, or name and address of the original credito r, is mailed to the consumer by the debt collector. . . .” (§ 1692g, subd. (b), italics added.) Plain tiff contends this language imposes upon8 collection agencies the duty to ve rify the disputed debt whethe r or not they continue with
debt collection efforts. 2 Three federal appellate courts have considered this issue, and each has rejected the position plaintiff espouses. A panel of the Ninth Circuit considered this question in Guerrero v. RJM Acquisitions LLC (9th Cir. 2007) 499 F.3d 926, 940 ( Guerrero ). It agreed with the reasoning of Jang v. A.M. Miller & Associates (7th Cir. 1997) 1 22 F.3d 480, 482–483 ( Jang ), stating: “In Jang , consumer plaintiffs claimed that defendants, two debt collection agencies, violated the Act because they never verified the alleged debts after plaintiffs disputed them. [Citation.] The Se venth Circuit, affirming the district court’s grant of defendants’ motion to dismiss, noted correctly that the Act ‘does not require debt collectors to actually provide validation. Rath er, it requires that the debt collector cease all collection activity until it provides the reques ted validation to the debtor.’ [Citation.] [¶] A collector, notified that a debt is dis puted, thus has a choice. As the court in Jang put it, the collector ‘may provide the re quested validations and continue their [ sic ] debt collection activities, or [it] may cease all collection activitie s.’ [Citations.] It would make little sense to impose an independent obligation to ve rify an alleged debt on a collector who, for example, decides that a disputed debt is not worth the effort and
chooses to close or sell the account. Or, as the court in Jang noted, on a collector who, upon receiving a dispute notice, realizes the c onsumer does not in fa ct owe the debt and so abandons all costly collection efforts.” ( Guerrero , supra , 499 F.3d at p. 940.)
The Sixth Circuit reached a similar result in Smith v. Transworld Systems, Inc. (6th Cir. 1992) 953 F.2d 1025, 1031 ( Smith ), stating that because the defendant there ceased collection activities after receiving a cease and desist letter, “defendant was not obligated

2 The requirement of verification has been construed to mean th e debt collector, at a minimum, must “ ‘confirm[] in writing th at the amount being demanded is what the creditor is claiming is owed.’ ” ( Clark v. Capital Credit & Collection Serv. (9th Cir. 2006) 460 F.3d 1162, 1173–1174.) This may include, for instance, obtaining from the creditor information about the debt and provid ing the debtor with documentary evidence of the debt. ( Id . at p. 1174.)9 to send a separate validation of the debt to plaintiff.” Similarly, the court in Sanchez v. United Collection Bureau, Inc. (N.D. Ga. 2009) 649 F.Supp.2d 1374, 1381 ( Sanchez ), stated, “When a consumer requests validation of a debt pursuant to the FDCPA, the debt collector is required to cease collection of the debt until it provides verification of the
debt to the consumer. A debt collector is not required to verify the debt, but instead may cease all collection activity on the account.” (Accord, Sambor v. Omnia Credit Services,
Inc. (D. Haw. 2002) 183 F.Su pp.2d 1234, 1242, 1243 ( Sambor ) [because debt collector ceased collection activities, it did not viol ate FDCPA by failing to verify debt]; Zaborac v. Phillips and Cohen Associates, Ltd. (N.D. Ill. 2004) 330 F.Supp.2d 962, 966.) 3 Plaintiff argues that if the debt collecto r is not required to verify the debt, “the result of simply ceasing [collect ion efforts] may not be ceasi ng at all [but] the sale or assignment of the debt and continued collect ion efforts and roundelays of disputing and sale/assignment ad infin itum.” The court in Jang considered a similar argument and rejected it, noting first that there was no in dication any such thing had happened in the
case before it—as there is no indication it has happened here—and sec ond, that “it is for Congress, and not the courts, to close th is alleged loophole in the FDCPA.” ( Jang , supra , 122 F.3d at p. 484.)

3 Lower federal courts have not always ap plied this rule consistently. The Ninth Circuit in Guerrero reversed the decision of the district court, which ruled that “even if Defendant had ceased with its efforts to collect the allege d debt, Defenda nt would still have been obligated to verify the debt.” ( Guerrero v. RJM Acquisitions, LLC (D. Haw. July 9, 2004, Civ. No. 03- 0038 HG-LEK) 2004 U.S. Dist . Lexis 15416, *27.) The district court also noted that the statute requi red the debt collector to inform a consumer that the collector would obtain and send verification on the debtor’s request, and concluded, “[t]he statute coul d not have required such a st atement without intending that a debt collector be required to follow th rough with the promise to obtain and send verification.” ( Id . at *27–28; see also Powell v. J.J. Mac Intyre Co. (D. Haw. January 23, 2004, Civ. No. 03-00402 DAE BMK) 2004 U. S. Dist. Lexis 2811, *10–11 [concluding debt verification was required regardless of whether agency ceases collection, and distinguishing Sambor on ground that debt collector in Sambor had returned files to original creditor and hence was not in pos ition to verify debt].) These cases were decided, of course, before the Ninth Circuit in Guerrero accepted the Jang rule that a debt collector who ceases collection efforts need not provide requested verifications. ( Guerrero , supra , 499 F.3d at p. 940.)10 Plaintiff also points to the language of section 1 692g, subdivision (a), which requires a debt collector to notify the consumer that if the consumer disputes the debt, the
debt collector “will obtain verification of the debt or a copy of the judgment” and a copy of the verification or judgment “will be ma iled to the consumer.” This statutory language, she argues, indicates the debt colle ctor must provide verification even if it ceases collection efforts after receiving notice of the dispute. The court in Jang rejected a similar argument, stating, “After requiring debt collectors to promise verification upon request, the statute allows debt collectors to sidestep this requirement by ceasing all collection activities. Although the statute mi ght be more informative for debtors if it required a notice that the debt collector would either provide the requested verification or cease all collection activities, it is not our job to rewrite the statute.” ( Jang , supra , 122 F.3d at p. 484.) Finally, Plaintiff argues that defendants’ own policies and procedures show they understood they were required to provide verification. The issue here, however, is what is required by the state and federal statutes. N one of plaintiff’s argum ents persuade us to depart from the rule of Jang , Smith , and Guerrero . We agree with the trial court that defendants were not required to verify plaintiff’s debt if they ceased collection efforts.
C. Continued Collection Efforts We next address plaintiff’s argument that defendants wron gfully continued collection efforts after receiving plaintiff’s dispute letter, as show n both by defendants’
failure to ensure that the debt was remove d from her credit reports and by Holguin’s calls to plaintiff.
1. Credit Reporting It is undisputed that credit reporting may constitute debt collection. (See Davis v. Trans Union, LLC (W.D.N.C. 2007) 526 F.Supp.2d 577, 586–587.) Here, however, there is no evidence that defendants reported the debt to any credit agencies; rather, plaintiff acknowledged below that the de bt was reported by Asset A cceptance in 2007, before it was assigned to defendants. Moreover, the cr edit report in the record shows the debt as11 disputed. 4 Plaintiff draws our attention to no au thority suggesting that a debt collector who does not arrange for a prior creditor to remove a debt from a credit report thereby engages in collection activity. The court in Shimek v. Weissman, Nowack, Curry & Wilco, P.C. (N.D. Ga. 2003) 323 F.Su pp.2d 1344, 1350, rejected a similar contention. The defendant there had already forwarde d liens to a county clerk by the time the plaintiffs received debt collection letters. The clerk recorded the liens after the plaintiffs had requested verification of the debt, but before the defe ndant provided verification. The plaintiff argued the defenda nt “was obligated to ‘take positive action’ to prevent the Clerk from recording the liens once Plaintiffs requested verification of the debt.” ( Ibid .) The court ruled otherwise, stating, “[t]he pl ain language of Section 1692g(b) . . . requires only that Defendant ‘cease collection of the de bt’ once verification is requested,” and the defendant was not required to prevent the liens from be ing recorded during the verification period. ( Ibid .) Similarly here, we find no statutory basis to conclude defendants were obliged to ta ke steps—even if they had authority to do so—to have a debt previously reported by a third pa rty removed from plaintiff’s credit report.
2. Telephone Calls Plaintiff contends summary judgment was inappropriate because there is a factual dispute about whether the telephone calls Ho lguin made constituted collection activity. Pursuant to section 1692g, subdivision (b), if the consumer notifies the debt collector within the 30-day period that a debt is disput ed, “the debt collector shall cease collection of the debt, or any disputed portion, thereof, until the debt collector obtains verification of the debt or a copy of the judgment . . . .”

4 Plaintiff points to the Code of Ethics and Code of Operations of the American Collectors Association Internatio nal, which states that if a debt cannot be verified, the collector should cease all collection efforts a nd “[d]irect or request removal of the item from the consumer’s credit report or report the item as disputed to the appropriate credit reporting agency , at the member’s next available oppo rtunity . . . .” Here, the debt was correctly reported as disputed. In any case, the issue before us is not whether defendants violated this code of ethics and operations, but whether th ey violated the applicable statutes.12 In ruling the telephone calls did not c onstitute collection activity, the trial court applied the “ ‘least sophisticated debt or’ standard.” As explained in Martin v. Sands (D. Mass. 1999) 62 F.Supp.2d 196, 199, “When consider ing whether a particular collection notice violates the FDCPA, courts usua lly look to whether the objective ‘least sophisticated debtor’ would find the notice improperly threatening or misleading.” “[T]he ‘least sophistical debtor’ standard is ‘ “lower than simply examining whether particular language would deceiv e or mislead the reasonable de btor.” ’ [Citations.] . . . ‘The basic purpose of the least-sophisticated -consumer standard is to ensure that the FDCPA protects all consumers, the gu llible as well as the shrewd.’ ” ( Wilson v. Quadramed Corp. (3d Cir. 2000) 225 F.3d 350, 354.) However, “although this standard protects naïve consumers, it also ‘preve nts liability for bizarre or idiosyncratic interpretations of collection notices by pres erving a quotient of reasonableness and presuming a basic level of understanding a nd willingness to read with care.’ ” ( Id . at pp. 354–355.) Both plaintiff and defendants argue the trial court should not have applied the objective, least sophisticated debtor sta ndard, but should instead have applied a subjective standard that looked to defendants ’ intent in making the telephone calls—that is, to whether the calls were made in connection with debt collection. According to plaintiff, the least sophisticated debtor standa rd should be used on ly when the plaintiff has alleged that a communication is deceptive.
We need not resolv e the question of whether the tr ial court properly applied the least sophisticated debtor standard because we conclude that, under any standard, there
was no triable issue of fact as to whether defendants continued coll ection activities. The facts show that when plaintiff disputed the bill on October 3, 2008, she explicitly invited American Agencies to contact her if it had any questions. Holguin called her later that month. Holguin stated in her declaration that she called “solely for the purposes of inquiring about Ms. Lee’s request for verifica tion.” In her depositi on, Holguin testified that she called plaintiff to fo llow up on the dispute, and th at she left a message asking plaintiff to return her call. Holguin had be en trained that when she handled a disputed13 account, she should “go over [the] dispute and see what they’re actually disputing so we can get the information to them [in] a timely manner.” Sh e also testified she could try to
settle the matter. In a second letter, in December 2008, pl aintiff told American Agencies she had heard nothing in response to her dispute and again invited American Agencies to call if there were any questions. Ho lguin called twice more, but plaintiff did not answer her telephone and Holguin did not leave a message; she stated that the calls were made to inquire about the request for ve rification, not for collection purposes. On this record— particularly in light of plaintiff’s express invi tation for American Agenci es to call if it had questions about her dispute—no trier of fact could conclude defendants continued with collection efforts after plaintiff disputed the debt. 5 (See Hubbard v. National Bond & Collection Assoc., Inc. (D. Del. 1991) 126 B.R. 422, 428 [verification process of 15 U.S.C. § 1692g allows debt colle ctor to learn “the reasons, if any, for the debtor’s refusal to pay” and “ensures a cost effective means by which a debtor and debt collector can exchange information”].) We are not persuaded otherw ise by plaintiff’s reliance on Allen v. ATG Credit LLC (N.D. Ill. Dec. 14, 2004, No. 03-C-5971) 2004 U.S. Dist. Lexi s 25304. In response to a letter informing her she could challenge the va lidity of a debt, the plaintiff there sent a letter to a debt collector requesting verifica tion and documentation of the debt, and asked
that future communications be ma de by mail, not telephone. ( Id . at *2–3.) The debt collector responded by providing a list of char ges that were allegedly owed. It then placed five phone calls to the plaintiff’s residence, asserted ly to confirm that she had received the verification. The plaintiff did no t receive the calls, and the debt collector did not leave a message. ( Id . at *3.) In the course of deny ing the defendant debt collector’s

5 The trial court sustained certain objecti ons to the declaration of plaintiff’s counsel on the grounds that they containe d improper legal conclusions, argument, and hearsay. Plaintiff contends that if, based on those sustained objections, the trial court failed to consider the evidence attached to counsel’s declarati on as exhibits, the trial court erred. In our own review, we have considered the evidence included in the exhibits, and we conclude summary judgment was properly granted.14 motion for summary judgment on multiple grounds, the cour t stated, “[Defendant’s]
business records show that it telephoned [plaintiff] approxi mately five times after the verification request. While [defendant] claims that it only attempted to contact [plaintiff] to verify that she had received the information she requested, the Cour t finds that the jury is in the better position to deciph er [defendant’s] motivation.” ( Id . at *10–11.) Here, in contrast, plaintiff herself invited American Agencies to call if it had any question about her dispute, and defendants submitted uncontradicted evidence that the calls were made in response to that invitation.
Because we conclude the trial court properly granted summary judgment on the ground that there was no statutory violation, we need not consider whether summary judgment was also proper as to American Agencies and ACA, In c. on the independent grounds that American Agencies is a fictitious business name and that ACA, Inc. did not own the name American Agencies during the times relevant to this dispute.
D. Request for Continuance In her opposition to the motion for summary judgment, plaintiff sought a continuance in order to complete discovery regarding putative class members who may have been subject to the same practices alleged by plaintiff, and about whether defendants used the “,496” macro on th e accounts of putative class members who disputed debts. According to plaintiff, such discovery was relevant to the question of defendants’ intent in making the telephone calls. She also sought discovery about defendants’ contract with Asset Accept ance—the assignor of the debt—which she asserted might “show notice of obligations regarding verifi cation and credit reporting.” In a supporting declaration, plaintiff’s counsel stated that plaintiff had filed a motion to compel discovery regarding these putative cl ass members, and that the court had twice issued directives indicating the discovery wa s not relevant to the issues pertinent to summary judgment and suggesting that the di scovery motions be put off until after the summary judgment motion was heard. In a su pplemental declaration, plaintiff’s counsel requested time to subpoena records of when and how the debt was reported to credit agencies. The trial court denied the request for a continuance, finding, “Plaintiff has not15 shown that facts essential to justify an opposition may exist or valid reasons that those
facts could not have been obta ined through more diligent e fforts and presented with her opposition.” Plaintiff contends the trial court should have granted the continuance to allow further discovery. Code of Civil Procedure section 437c, subdivision (h), provides: “If it appears from the affidavits submitted in oppositi on to a motion for summary judgment or summary adjudication or both that facts essential to jus tify opposition may exist but cannot, for reasons stated, then be presented, the court sha ll deny the motion, or order a continuance to permit affidavits to be obtaine d or discovery to be had or may make any other order as may be just. . . .” Thus, to be entitled to a continuance, a plaintiff is “required to show, by affidavit, that fact s essential to his oppo sition to the summary judgment motion existed, and the reasons why they could not be presented at the time of the motion.” ( Bushling v. Fremont Medical Center (2004) 117 Cal.Ap p.4th 493, 511.) We review the trial court’s denial of a request for a continuance for abuse of discretion. ( Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.)
We find no abuse of discre tion here. As we have expl ained, the undisputed facts show Holguin called plaintiff after plaintiff expressly invited American Agencies to do so, that defendants engaged in no other acti ons toward plaintiff after she disputed the debt, and that defendants did not report the de bt to credit bureaus. On this record, the trial court could reasonably conclude plain tiff did not show that discovery about other putative class members and credit reporting w ould reveal facts essential to oppose the motion for summary judgment.
E. Attorney Fees Defendant sought attorney fees under Civil Code sec tion 1788.30, subdivision (c), which authorizes an award of attorney fees “to a prevailing creditor upon a finding by the court that the debtor’s prosecution or defens e of the action was not in good faith.” Upon defendants’ motion, the trial court awarded at torney fees against plaintiff in the amount of $66,818.00. Plaintiff contends this award was made in error.16 An award of attorney fees under Civil Code section 1788.30, subdivision (c), is discretionary. ( Gouskos v. Aptos Village Garage, Inc. (2001) 94 Cal.Ap p.4th 754, 764.) The parties have not cited, a nd our own research has not di sclosed, any California cases discussing the standard to be applied where a prevailing defendant seeks attorney fees under this statute. However, a nearly iden tical attorney fee provision may be found in Civil Code section 1780, subdivision (e), a po rtion of the Consumer Legal Remedies Act (Civ. Code. § 1750 et seq.), whic h provides in pertinent part: “Reasonable attorney’s fees may be awarded to a prevailing defendant upon a finding by th e court that the plaintiff’s prosecution of the action was not in good faith .” This provision has been interpreted to require a finding of subjective bad faith. ( Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 920–924 ( Corbett ); Shisler v. Sanfer Sports Cars, Inc. (2008) 167 Cal.App.4th 1, 9.) “When a tac tic or action utterly lacks merit, a court is entitled to infer the party knew it lacked mer it yet pursued the action for some ulterior motive.” ( Corbett
, supra , 119 Cal.App.4th at p. 928.) “ Good faith , or its absence, involves a factual inquiry into the plaintiff’s subjective state of mind [c itations]: Did he or she believe the action
was valid? What was his or her intent or purpose in pursuing it? A subjective state of mind will rarely be susceptible of direct proo f; usually the trial court will be required to
infer it from circumstantia l evidence. Because the good faith issue is factual, the question on appeal will be whether the ev idence of record was sufficien t to sustain the trial court’s finding.” ( Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 932, overruled on another point in Reid v. Google, Inc . (2010) 50 Cal.4th 512, 532, fn. 7.) The trial court here found pl aintiff did not act in good fa ith in pursuing her action. It concluded that many of plaintiff’s allegatio ns “were baseless (or put another way, were not ‘minimally colorable’).” 6 The court noted that the c ontention that defendants were obliged to verify the debt ev en if they did not continue collections had “been firmly

6 The FDCPA allows an award of attorney fees to a defendant where the court finds an action “was brought in bad faith and for the purpose of harassment . . . .” (15 U.S.C. § 1692k, subd. (a)(3).) This statute has been construed to allow fees where a plaintiff’s claims are not “minimally colorable.” ( Guerrero , supra , 499 F.3d at p. 940; Sanchez
, supra , 649 F.Supp.2d at p. 1382.)17 rejected by three Federal Courts of Appeals and accepted by none,” a nd that plaintiff had not identified any sound basis for the court to disagree with those decisions. The court found “[e]ven more troubling . . . Plaintiff’s repeated insistence that the Defendants reported the debt in question to credit repor ting bureaus.” Accord ing to the court, “Plaintiff made this charge, ignored Defendant s’ sworn declaration to the contrary that was provided early in the case, and never obta ined any evidence to support it. . . . And when Defendants subpoenaed cred it agencies in order to lay th is issue to rest, Plaintiff refused to consent, forcing Defendants to f ile a motion to obtain cr edit reporting records,
which confirmed that no Defendan t had reported the disputed item to any credit agency.” The court went on, “Plaintiff’s re fusal strongly suggests an inte nt to obstruct, rather than resolve, this litigation. Both this claim and Plaintiff’s tactic s in litigating the claim were completely meritless.” The court also found that plain tiff’s attempts to “recast” this claim to argue that defendants “were obligat ed to attempt to remove items reported by another agency from Plaintiff’s credit repor t” was legally unsupported. The court concluded, “the circumstances in which this case arose are not entirely above suspicion; the manner in which Plaintiff’s counsel prosec uted the case is not admirable; and the
Court cannot find even a mini mally colorable claim or pos ition taken by Plaintiff.” Although this is a close issue, a nd counsel’s dubious litigation tactics notwithstanding, we conclude plaintiff had at least one colorable claim. It is clear from the record that defendants did not report the debt to credit bureaus, and that there is no legal basis to conclude a debt collector has a duty to ensure that others remove a debt from a credit report. It is also true that ev ery federal appellate court that has considered
whether a debt collector who ceases collecti on efforts has a duty to provide verification has answered that question in the negative, and we agree th at those cases are correctly decided. (See, e.g., Guerrero , supra , 499 F3d at p. 940; Jang , supra , 122 F.3d at pp. 482–483; Smith
, supra , 953 F.2d at p. 1031.) However, as plaintiff points out—and as
the court in Jang , supra , 122 F.3d at p. 482 acknowle dged—in addition to requiring a debt collector to cease collection of a disput ed debt “until the debt collector obtains verification of the debt or a copy of the ju dgment” (§ 1692g, subd . (b)), the FDCPA also18 requires the debt collector, in the notice of debt, to include a statement that if the
consumer notifies the debt collector of the dispute in writing duri ng the 30-day period,
“the debt collector will obtain verification of the debt or a copy of a ju dgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector.” (§ 1692g, subd. (a)(4).) Thus, there is at least an arguable tension between the requirements of subdivision (a) of this statute, which requires the debt
collector to tell the consumer it will obtain and mail verification, and subdivision (b), which does not impose an independent duty actu ally to obtain or send verification if the
debt collector ceases collection efforts. A lthough the federal appellate courts have unanimously interpreted the statute so that a debt collector need not obtain and mail verification if collection efforts cease, no Calif ornia court has ruled on the matter, and we cannot agree that the cl aim “utterly lacks merit” or that pursuing it indicates bad faith. (See Corbett
, supra , 119 Cal.App.4th at p. 928.) 7 Likewise, it does not appear to us that there was no good faith basis for plaintiff’s claim that Holguin’s telephone calls were co llection efforts. A lthough the record on summary judgment persuades us that no reasona ble trier of fact could conclude the calls constituted collection efforts, we are not pe rsuaded that pursuing such a claim would indicate lack of good faith—and indeed, in its attorney fee order, the trial court did not
discuss that claim. We shall therefore reverse the attorney fee order.

7 Indeed, as we have noted, some federal District Court cases before Guerrero, supra, 499 F.3d 926, concluded a de bt collector did have an independent duty to verify a debt upon request. (See fn. 3, ante, and cases cited therein.)19 III. DISPOSITION The attorney fee order is reversed. In a ll other respects, the judgment is affirmed.

_ ____________ ____________ Rivera, J.

We concur:

_____________ ____________ Reardon, Acting P.J.

_____________ ____________ Humes, J.