Diaz v. Kubler Corp.

• Decision Date: 06 November 2013
• Docket Number: Case No. 12cv1742–MMA–BGS.
• Court: U.S. District Court — Southern District of California
• Parties: Tamara DIAZ, Plaintiff, v. KUBLER CORPORATION doing business as Alternative Recovery Management, Defendant.

982 F.Supp.2d 1146

Tamara DIAZ, Plaintiff,

v.KUBLER CORPORATION doing business as Alternative Recovery Management, Defendant.

Case No. 12cv1742–MMA–BGS.

United States District Court,

S.D. California.

Nov. 6, 2013.

Andre L. Verdun, Crowley Law Group, Eric A. Laguardia, Laguardia Law, San Diego, CA, for Plaintiff.

Mark Gerald Spencer, Law Offices of Mark G. Spencer, San Diego, CA, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT

MICHAEL M. ANELLO, District Judge.

Currently before the Court is Plaintiff Tamara Diaz's motion for summary judgment or, in the alternative, partial summary judgment on her claims under the Fair Debt Collection Practices Act (“FDCPA”) and California's Fair Debt Collection Practices Act (“Rosenthal Act”). [Doc. No. 51.] The Court, in its discretion, found the motion suitable for determination on the papers and without oral argument, pursuant to Civil Local Rule 7.1(d)(1). For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's motion for summary judgment.

Background¹

In Spring of 2011, Plaintiff received dental services from Parkway Dental Group (“Parkway”). As a result of these services, Plaintiff incurred a debt ² with Parkway. To collect Plaintiff's debt, Parkway sought the services of Alternative Recovery Management (“Defendant”), a third-party debt collector.

Defendant assigned its employee, Joshua Flores (“Flores”), to Plaintiff's debt collection case. As part of his job, Flores makes telephone calls to consumers regarding collection of their delinquent debt. During a phone call with a consumer, Flores makes contemporaneous notes into a computer system.³ When Flores notifies the caller that he is a debt-collector, he makes the notation “MINI” or “MINI I” in the computer system, indicating that he provided the “mini-Miranda” notification required by the FDCPA. Once Flores enters information into the computer system, he cannot change the previously-entered information.

Around May 2012, Flores called Plaintiff in an attempt to collect Plaintiff's debt. A few days later, Flores called Plaintiff again.⁴ Around the same time, Defendant also sent Plaintiff a letter regarding the collection of Plaintiff's debt. Defendant sought to collect the principal amount of Plaintiff's debt plus 10 percent interest.

Sometime after the second phone call, Plaintiff's daughter, Erika Diaz, an attorney, called Flores. On or around June 4, 2012, Defendant received a letter from Plaintiff's daughter. Upon receipt of this letter, Defendant stopped personally contacting or attempting to collect the debts from either Plaintiff or her daughter.⁵

On July 13, 2012, Plaintiff filed this action,⁶ and Defendant was served on July 30, 2012. In the operative first amended complaint, Plaintiff alleges violations of the FDCPA,⁷ the Rosenthal Act, and negligence. [Doc. No. 49.]

On or around September 25, 2012, Defendant reported Plaintiff's debt to the credit reporting agency. To date, Defendant has neither obtained a judgment against Plaintiff nor garnished her wages.

On August 26, 2013, Plaintiff filed this motion for summary judgment on her claims under the FDCPA and Rosenthal Act. [Doc. No. 51.] Defendant filed an opposition, and Plaintiff filed a reply brief. [Doc. Nos. 52, 53.]

Legal Standard

A motion for summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The purpose of summary judgment “is to isolate and dispose of factually unsupported claims or defenses.” Celotex v. Catrett, 477 U.S. 317, 323–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of informing the court of the basis for the motion, and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Id. at 323, 106 S.Ct. 2548. The evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630–31 (9th Cir.1987).

If the moving party meets its initial burden, the burden then shifts to the nonmoving party to present specific facts showing that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When a party fails to properly address another party's assertions of fact, a court may consider these facts as undisputed. Fed.R.Civ.P. 56(e)(2). If the motion and supporting materials, including facts considered undisputed, show the movant is entitled to summary judgment, the court may grant the motion. Fed.R.Civ.P. 56(e)(3). Summary judgment is not appropriate, however, if the non-moving party presents evidence from which a reasonable jury could resolve the disputed issue of material fact in his or her favor. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Barlow v. Ground, 943 F.2d 1132, 1136 (9th Cir.1991).

“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Therefore, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id.; see also Demers v. Austin, 729 F.3d 1011, 1017 (9th Cir.2013). Accordingly, “[s]ummary judgment is not appropriate if a reasonable jury viewing the summary judgment record could find by a preponderance of the evidence that the [non-moving party] is entitled to a favorable verdict.” Narayan v. EGL, Inc., 616 F.3d 895, 899 (9th Cir.2010).

Discussion

A. Violations of the Fair Debt Collection Practices Act⁸

The underlying purpose of the FDCPA is to “eliminate abusive debt collection practices by debt collectors ... and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692; see also Nelson v. Equifax Info. Servs., LLC, 522 F.Supp.2d 1222, 1232 (C.D.Cal.2007).

Plaintiff alleges that Defendant violated various provisions of the FDCPA when, during phone calls between Flores and Plaintiff, Flores failed to identify himself as a debt collector; threatened to sue Plaintiff; threatened to garnish Plaintiff's wages; and threatened to report Plaintiff's delinquent debt on both her and her husband's credit report, although Defendant never intended to do so. Plaintiff also contends that Defendant retaliated against Plaintiff's filing this action by reporting her delinquent debt to the credit agency. Plaintiff further contends that Defendant violated the FDCPA by seeking to collect interest on Plaintiff's debt.

Defendant asserts that the Court should deny Plaintiff's motion because a genuine issue of material fact exists as to Plaintiff's claims. Defendant disputes the contents of the phone calls. Specifically, Defendant contends that Flores identified himself as a debt collector, provided the required notification, and did not threaten Plaintiff in any way. Defendant also asserts that because Plaintiff did not allege any claim relating to the alleged retaliation for filing this lawsuit in the first amended complaint, the claim is not properly before the Court. Moreover, Defendant claims that it reported the debt to the credit reporting agency in accordance with its ordinary debt collection practice. Finally, Defendant contends that pursuant to California law, it is entitled to collect interest on a debt.

The Court addresses Plaintiff's claims under the FDCPA in turn.

1. Violations of 15 U.S.C. § 1692d

Section 1692d of the FDCPA prohibits a debt collector from engaging in “any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. § 1692d. In addition to this general ban, this section also expressly prohibits certain conduct, including “the placement of telephone calls without meaningful disclosure of the caller's identity.” 15 U.S.C. § 1692d(6). Although the statute does not expressly define “meaningful disclosure,” district courts generally require that “the caller must state his or her name and capacity, and disclose enough information so as not to mislead the recipient as to the purpose of the call or the reason the questions are being asked.” Hosseinzadeh v. M.R.S. Associates, Inc., 387 F.Supp.2d 1104, 1112 (C.D.Cal.2005); see also Costa v. Nat'l Action Fin. Servs., 634 F.Supp.2d 1069, 1074 (E.D.Cal.2007).

Plaintiff alleges claims under §§ 1692d and 1692d(6), asserting that during her phone calls with Flores, he violated these sections by failing to identify himself as a debt collector; threatening to garnish her wages, report the debt to a credit reporting agency, and sue Plaintiff; and by reporting the debt in retaliation for filing this lawsuit. To satisfy her burden, Plaintiff submits a declaration and her deposition testimony in which she states that during both phone calls, Flores identified himself only as “Josh” but did not disclose that he was as a debt collector. [Diaz Decl. ¶ 9; Diaz Depo. at 41–42, 60:10–12.] ⁹ Plaintiff also offers Flores' collection notes from the first phone call in which there is no “MINI” notation to show that he issued the required mini-Miranda warning. [ See Flores Depo. at 63–64.] According to Plaintiff, Flores also stated during both phone calls that Defendant could garnish Plaintiff's wages, bring a lawsuit against Plaintiff, report the debt to a credit reporting agency to show on both her and her husband's credit report. [Diaz Depo. at 40; 44:9–11.]...