Riley v. Giguiere

• Citation: 631 F.Supp.2d 1295
• Decision Date: 19 June 2009
• Docket Number: No. CIV. S-06-2126 LKK/KJM.,CIV. S-06-2126 LKK/KJM.
• Court: U.S. District Court — Eastern District of California
• Parties: Wesley RILEY, Plaintiff, v. Michele GIGUIERE, et al, Defendants.

631 F.Supp.2d 1295

Wesley RILEY, Plaintiff, v. Michele GIGUIERE, et al, Defendants.

No. CIV. S-06-2126 LKK/KJM.

United States District Court, E.D. California.

June 19, 2009.

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Mark A. Campbell, Tiffany P. Scarborough, Murphy Campbell Guthrie and Alliston, Sacramento, CA, for Plaintiff.

Kerri Lynn Ruzicka, William A. Munoz, Murphy Pearson Bradley and Feeney, Sacramento, CA, for Defendants.

ORDER

LAWRENCE K. KARLTON, Senior District Judge.

Plaintiff has brought suit against defendant for alleged violations of the Fair Debt Collections Practices Act ("FDCPA") 15 U.S.C. § 1692, et seq. This case came to trial on March 31, 2009 and the court declared a mistrial on April 2, 2009 and ordered the defendant to file a motion for summary judgment. Pending before the court are the parties' cross-motions for summary judgment. The court resolves the motions on the papers and after oral argument.

I. BACKGROUND AND FACTS

A. Procedural History

Plaintiff commenced this suit in September 2006. He filed an amended complaint in February 2007, which defendants answered. In his Amended Complaint, plaintiff alleged defendant acted as the agent for his former lessor and used improper means in pursuing an unlawful detainer action against him and in seeking to recover a related debt. He alleged the defendant's actions constituted violations of §§ 1692d, 1692e, and 1692f of the FDCPA. He sought compensatory damages for attorneys fees expended in setting aside the default judgment in state court and for emotional distress, statutory damages, and attorneys fees in the instant action.

In April 2007, plaintiff settled with defendants Martin, California Investors, Inc., California Investor, and Budget Property Management, Inc., whereby he agreed to release those defendants and "all of their agents." Munoz Decl. ¶ 4. The court granted a dismissal order upon the stipulation of the parties on May 18, 2007.

In November 2007, defendant moved for summary judgment on four grounds: (1) that she was not a debt collector under FDCPA, (2) that defendants' activities forming the basis of the plaintiff's claim were not covered under the FDCA, (3) that the plaintiff's claim was time-barred, and (4) that she had no duty to investigate the basis of the debt that she was collecting. The court granted the motion in part and denied it in part.

Inter alia, the court held that defendant had not met her burden to prove that no reasonable jury could find that she was a debt collector. The court also held that defendant's only actionable activities as alleged in the complaint were her filing of an Abstract of Judgment in the unlawful detainer action on February 2, 2006 and filing an opposition to plaintiff's motion to set aside the default judgment in Sacramento County Superior Court on May 1, 2006.

The court now considers the parties' cross-motions.

B. Facts¹

The court set forth the facts of the case in its February 14, 2008 order resolving defendant's motion for summary judgment and in its August 8, 2008 Final Pretrial Order. Relative to the instant motions, the parties have tendered additional facts that are relevant to their motions.

1. Termination of Plaintiff's Tenancy

Plaintiff has tendered evidence that in December 1999, he spoke to Budget Property Management employee Steve Ramirez about terminating his tenancy. Declaration of Tiffany Scarborough In Support of Pl.'s Mot. for Summ. J. ("Scarborough Decl.") Ex. A (Riley Depo. at 46:4-51:9). According to plaintiff, he then drafted a letter stating that he would no longer reside at the property after January 1, 2000. Id.; Declaration of Wesley Riley In Support of Pl.'s Mot. for Summ. J. ("Riley Decl.") ¶ 4, Ex. H. This letter "was virtually dictated to" Mr. Riley by Mr. Ramirez. Riley Depo. at 51:4-9. Shortly thereafter, plaintiff returned his keys to the property management office and faxed Budget the notice of termination letter. Riley Decl. ¶¶ 4-5. Defendant contends that there is no record of Budget having received the fax or a telephone call from plaintiff to confirm receipt of the fax transmission. Declaration of Sandy Mullins In Support of Def.'s Mot. for Summ. J. ("Mullins Decl.") ¶¶ 4-5. Defendant also testified that she never saw this letter when provided the plaintiff's file from Budget. Declaration of William Munoz In Support of Def.'s Mot. for Summ. J. ("Munoz Decl.") ¶ 10, Ex. 49 (Giguiere Depo. at 34:8-17, 46:16-49:15); Declaration of Michelle Giguiere In Support of Def.'s Mot. for Summ. J. ("Giguiere Decl.") ¶¶ 15, 18, 23, 24, 28, 29.

2. Defendant's Debt Collection Work

To supplement the facts set forth in the court's February 14, 2008 order, plaintiff has also tendered evidence that, in addition to defendant's unlawful detainer work, she has separately performed debt collection work for a single client. Def.'s Response to Pl.'s Sep. Statement of Undisputed Facts ¶ 30. She has filed approximately forty cases for that client and receives $100 per filing and generally collects $300 if the debt is successfully collected from the debtor. Id. This collection work comprises approximately five percent of her total work. Id.

3. The Unlawful Detainer Actions Against Plaintiff

Much of the evidence tendered in support of the instant motions describing the unlawful detainer actions against plaintiff was described in the court's February 14, 2008 order. Plaintiff has also tendered evidence that defendant saw Sherry Ahrens' Answer to the third unlawful detainer summons and complaint (Santos v. Riley & Ahrens, Sacramento County Superior Court Case No. 05UD00611), in which Ahrens asserted that plaintiff had not resided at the Grayling Way address since December 2000. Def.'s Response to Pl.'s Sep. Statement of Undisputed Facts ¶ 36. Defendant declared that she contacted California Investors (the successor to Budget Property Management) regarding this statement and reviewed the plaintiff's tenancy file, but did not find any notice of plaintiff's termination of his lease. Giguiere Decl. ¶¶ 23-24.

In the subsequent trial on the unlawful detainer action, Ahrens testified that plaintiff had not resided at the property since 2001. Def.'s Response to Pl.'s Sep. Statement of Undisputed Facts ¶ 39. Default judgment was entered against plaintiff in March 2005. Defendant filed the Abstract of Judgment in Sacramento County Superior Court on February 2, 2006 and in the Yolo County Recorder's Office on February 10, 2006. Def.'s Response to Pl.'s Sep. Statement of Undisputed Facts ¶ 45. Plaintiff resides in Yolo County and he contends that he had provided his Yolo County home address to defendant in his January 2006 letter to her. Def.'s Response to Pl.'s Sep. Statement of Undisputed Facts ¶ 46.

After plaintiff had prevailed in his motion to set aside the default judgment, defendant contacted plaintiff's counsel by letter on May 19, 2006 offering to settle the action. Def.'s Response to Pl.'s Sep. Statement of Undisputed Facts ¶ 51. The letter provided that defendant would set the case for trial if she had not received a response in ten days. Id. On the same day, however, defendant also signed a Request for Dismissal of the unlawful detainer action with Sacramento Superior Court. Def.'s Response to Pl.'s Sep. Statement of Undisputed Facts ¶ 50. This was filed on June 9, 2006 and dismissal was entered that day. Id. The Request for Dismissal was not served on plaintiff until July 17, 2006. Id.

4. Plaintiff's Damages

Plaintiff has declared that he incurred $7,019.20 in attorneys' fees in defending against the underlying third unlawful detainer action, with counsel billing a rate of $200 per hour. Riley Decl. ¶ 18. According to defendant, plaintiff did not provide billing statement or other substantiation of his claimed attorneys' fees in his Rule 26 disclosures. Munoz Decl. ¶ 15.

Plaintiff also declared that he had sought a home equity loan in January 2006 but "put [it] aside" when he discovered the default judgment on his credit report. Riley Decl. ¶ 15. He has declared that at that time the interest rate advertised by his credit union was 5.375%. Id. When he eventually applied for the loan in May 2006, the interest rate was 6.79%. Id. His application was denied. Id. He has tendered a copy of the rejection letter, which provided that the basis of the denial was, "Delinquent credit history; Garnishment, attachment, foreclosure, repossession, or suit; Ratio of balance to total credit limit on all revolving accounts or no accounts of this type; Near credit limit; Requested amount exceeds recommended credit limit." Id. ¶ 15, Ex. S. Defendant has tendered evidence that the loan application had been rejected pending plaintiff's payment of his second mortgage debt and a collection amount associated with a judgment. Munoz Decl. ¶ 13, Ex. 48 (Depo. of Kimberly Boro at 27:11-24).

Plaintiff has tendered his e-mail communications with Karen Dighton, an employee in the Equity Lending Department of Golden 1 Credit Union. Riley Decl. ¶ 15, Ex. T. In it, they appear to discuss the denial of plaintiff's loan application. Id. In addition to explaining the outcome of the unlawful detainer action, plaintiff also provided a list of outstanding debts that he stated he intended to pay with the loan sought. Id. Among other statements, Dighton stated that plaintiff would have to pay a collection of $12,896 owed to the City of West Sacramento for "Sewer Improvements" before Golden 1 would issue the loan. Id. She advised that plaintiff "would still have to have that debt paid before we could proceed. Maybe when you get this removed from your credit report you can submit another application." Id. She also explained that the loan application could not be kept pending for sixty days while plaintiff sought to have that debt removed from his credit report, but would have to be regenerated and the interest rate would correspond to the date of the new report. Id.

Plaintiff then...