Costa v. National Action Financial Services

• Decision Date: 19 December 2007
• Docket Number: No. CIV. S-05-2084 FCD/KJM.,CIV. S-05-2084 FCD/KJM.
• Citation: 634 F.Supp.2d 1069
• Parties: Jessica COSTA, Plaintiff, v. NATIONAL ACTION FINANCIAL SERVICES, and Elizabeth Doe, Defendants.
• Court: U.S. District Court — Eastern District of California

Page 1069

634 F.Supp.2d 1069

Jessica COSTA, Plaintiff, v. NATIONAL ACTION FINANCIAL SERVICES, and Elizabeth Doe, Defendants.

No. CIV. S-05-2084 FCD/KJM.

United States District Court, E.D. California.

December 19, 2007.

COPYRIGHT MATERIAL OMITTED

Joshua Branden Swigart, Robert Lyman Hyde, Hyde and Swigart, San Diego, CA, for Plaintiff.

June Dittus Coleman, Mark E. Ellis, Andrew M. Steinheimer, Ellis, Coleman, Poirier, Lavoie & Steinheimer, LLP, Sacramento, CA, for Defendants.

MEMORANDUM AND ORDER

FRANK C. DAMRELL, Jr., District Judge.

This matter comes before the court on (1) plaintiff Jessica Costa's ("plaintiff") motion for partial summary judgment relating to her claims for violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. 1692 et seq., and the California Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), Cal. Civ.Code § 1788 et seq. and (2) defendant National Action Financial Services, Inc.'s ("defendant" or "NAFS") cross-motion for partial summary judgment with respect to plaintiff's claim for emotional distress damages pursuant to the FDCPA and RFDCPA. Plaintiff opposes defendant's motion,¹ and defendant opposes plaintiff's motion. For the reasons set forth below,² both plaintiff's and defendant's motions are GRANTED.

BACKGROUND³

Sometime before March 17, 2005, plaintiff incurred a debt to NextCard. (Pl.'s Verified Complaint for Damages, filed October 15, 2005 ["Compl."], ¶ 18). Plaintiff defaulted on this debt. (Id. ¶ 20). The debt was subsequently assigned to defendant for collection. (Id. ¶ 21). On March 17, 2005, plaintiff received a voice mail message at her home. The message stated: "This message is for Jessica Costa. My name is Elizabeth. I received a phone call in my office for you. If you could please contact me back I'll be here until 4 p.m. Eastern Time. My number is 866-529-1899 extension 2936." (Def.'s Response to Pl.'s Statement of Undisputed Facts, filed Nov. 30, 2007 ("DUF"), ¶ 7).

In response to the message, the next day plaintiff telephoned the number left by Elizabeth. (SUF ¶ 3). Plaintiff did not reach Elizabeth, and left a voice mail. (Id.). The same day Elizabeth left a second message on plaintiff's home phone. (Id. ¶ 4, 5). Upon receiving the second message, plaintiff telephoned Elizabeth back using her cell phone. (Id. ¶ 7). Plaintiff reached an operator and was connected to a woman who answered the telephone by calling herself Elizabeth. (Id. ¶¶ 7, 8). Elizabeth informed plaintiff she was calling in regards to the debt owed on plaintiff's NextCard account. (Id. ¶ 8). Plaintiff explained she was not presently employed and requested a payment schedule. (Id. ¶ 9). Elizabeth told plaintiff setting up payments would be considered a refusal to pay the debt. (Id. ¶ 10). Elizabeth then asked plaintiff how she was paying her other bills, including a $400/month car payment, and whether plaintiff was obtaining money illegally. (Id. ¶¶ 13, 15). Elizabeth then suggested plaintiff should file for bankruptcy. (Id. ¶ 14). Elizabeth subsequently hung up on plaintiff. (Id. ¶ 17).

Plaintiff immediately called NAFS and reached Elizabeth through the operator. (Id. ¶ 18). Plaintiff informed Elizabeth she could not talk to plaintiff "that way," and requested to speak with Elizabeth's supervisor. (Id. ¶ 19). Elizabeth told plaintiff she could not speak with a supervisor until she got a job. (Id. ¶ 20). Elizabeth then hung up on plaintiff. (Id.). Plaintiff called Elizabeth back. (Id. ¶ 21). Elizabeth answered the phone and immediately yelled "you sure did get a job fast." (Id. ¶ 22, 32). Plaintiff requested to speak to Elizabeth's supervisor, and Elizabeth hung up the phone. (Id. ¶ 23). Plaintiff again called Elizabeth back. (Id. ¶ 24). Plaintiff reiterated her request to speak with Elizabeth's supervisor. (Id. ¶ 26). Elizabeth then suggested plaintiff "pick up a pen, preferably blue or black. Go down to McDonalds and fill out an application." (Id. ¶ 28). Elizabeth then hung up on plaintiff yet again. (Id. ¶ 31).

During all four conversations, Elizabeth never identified the company she worked for. (SDF ¶ 2). Plaintiff returned home and requested a friend call back in order to discern the company collecting on her account. (SUF ¶ 34). Plaintiff's friend, Mr. Baucom, called defendant from his personal cell phone. (Id. ¶ 35) Upon reaching an operator, Baucom asked for the name of the company. (Id.). Baucom was then asked for his phone number, which he refused to give. (Id. ¶ 36, 37). The operator informed Baucom the company had caller ID and that there was no account listed for Baucom's phone number. (Id. ¶ 38). The operator then hung up without providing the company name. (Id.). Several minutes later, Baucom called defendant from plaintiff's home phone. (Id. ¶ 39). He requested the name of the company and was told he had called NAFS. (Id. ¶ 40, 41).

Approximately a week later, plaintiff received another voice mail message from Elizabeth at her home. (SDF ¶ 1). Plaintiff also received a letter from defendant regarding her NextCard account, dated April 7, 2005. (SUF ¶ 44, 45).

During plaintiff's phone conversations with Elizabeth, and for approximately a half hour after, plaintiff shook due to stress caused by the phone calls. (SDF ¶ 5). Plaintiff claims she still shakes in response to phone calls by unknown numbers and she refuses to answer the phone. (SUF ¶ 48). Plaintiff's heart races and her palms get sweaty when she does not know the caller. (Id.). Plaintiff claims she also suffers difficulties sleeping two to three times per week. (Id. ¶ 49). Plaintiff has not seen any type of medical doctor or mental health professional for help treating her symptoms. (Id. ¶ 53). Plaintiff has not taken any type of prescription or over-the-counter medication to help treat her symptoms. (Id. ¶ 54).

STANDARD

A motion for partial summary judgment is resolved under the same standard as a motion for summary judgment. See California v. Campbell, 138 F.3d 772, 780 (9th Cir.1998). Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. at 324, 106 S.Ct. 2548. Indeed, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. 2548.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed.R.Civ.P. 56(e). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Id. at 251-52, 106 S.Ct. 2505.

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 289, 88 S.Ct. 1575. In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir.1982). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D.Cal.1985), aff'd, 810 F.2d 898 (9th Cir.1987).

ANALYSIS

A. FDCPA

Plaintiff argues defendant violated 15 U.S.C § 1692d(6) and 15 U.S.C § 1692e(11) in failing to provide meaningful disclosure of defendant's identity in voice mail messages left on plaintiff's home phone. (Pl.'s Mot. Partial Summary Judgment, filed Oct. 4, 2007 ("Pl.'s Mot."), at 2). Defendant contends Elizabeth's failure to disclose the identity of NAFS was not a violation of § 1962d(6), and that the messages...