Allen v. Credit Collection Services, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 CAMERON ALLEN, No. 2:18-cv-00929-MCE-KJN 12 Plaintiff, 13 v. MEMORANDUM AND ORDER 14 CREDIT COLLECTION SERVICES, INC., [15] Defendant. [17] 18 Through the present action, Plaintiff Cameron Allen (“Plaintiff”) seeks damages 19 from Defendant Credit Collection Services, Inc. (“CCS” or “Defendant”), a collection 20 agency, under the Fair Debt Collection Practices Act, 15 U.S.C.S. §§ 1692 et seq., 21 (“FDCPA”) and its California counterpart, the Rosenthal Act, Cal. Civ. Code §§ 1788 22 et seq, (“Rosenthal Act”).1 ECF No. 1. According to Plaintiff, the telephone calls he 23 received from CCS rose to the level of conduct intended to “harass, oppress, or abuse” 24 him in connection with the collection of his debt. Compl., ECF No. 1 at 4-5. Presently 25 before the Court is Defendant’s Motion for Summary Judgment pursuant to Federal Rule [26] 1 While Plaintiff’s Complaint, filed April 16, 2018, also included a cause of action claim under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), Plaintiff failed to offer any opposition to [27] Defendant’s summary judgment request as to that claim and therefore appears to have abandoned any relief under that statute. See Def’s Reply, ECF No. 13 at 6:21-7:5. Consequently, Plaintiff’s TCPA claim 28 will not be further analyzed in this Memorandum and Order. 1 of Civil Procedure 56. ECF No. 9. For the reasons stated below, Defendant’s motion is 2 GRANTED.2 [3] 4 BACKGROUND3 [5] 6 Plaintiff entered into a contract with Comcast, a telecommunications company, for 7 the provision of cable services. When Plaintiff purportedly failed to pay the amounts due 8 under that contract, Comcast turned Plaintiff’s unpaid cable bill over to CCS for collection 9 on October 24, 2016. Stmt. Undisputed Facts (“SUF”), ECF No. 13-1 ¶ 1. Between 10 November 4, 2016 and January 3, 2017, a period of about two months, CCS’ call logs 11 show that it placed eight calls to Plaintiff’s cellular telephone number, which he had 12 previously provided to Comcast. Ex. C, ECF No. 11-4 at 4. The calls were placed about 13 a week apart and CCS records show that its representatives only spoke to Plaintiff twice 14 during this period. Id. Specifically, on November 10, there was a brief exchange before 15 the call was disconnected. SUF ¶ 3. This was followed up later that day with a call from 16 Plaintiff disputing that he owed anything on his account and stating that he would follow 17 up with Comcast. Id. ¶ 4 . CCS made recordings of both calls, which were offered as 18 evidence in support of its motion. See Decl. of Jeffrey Stoddard, ECF No. 9-4, Exs. D, 19 E. 20 In neither call did Plaintiff tell CCS to stop calling him. SUF ¶¶ 3-4. Between 21 January 10, 2017 and May 19, 2018, CCS placed seven more calls to Plaintiff, all of 22 which went unanswered. Ex. C at 5. The calls were made on average at a rate of about 23 once a month. Id. All calls to Plaintiff were documented by CCS in detailed account 24 notes which memorialized the date and time each call was placed, as well as the 25 substance of any actual conversation with Plaintiff. Stoddard Decl., Ex. B. [26] 2 Because oral argument would not have been of material assistance, the Court ordered this matter submitted on the briefs. See E.D. Cal. Local R. 230(g). [27] 3 The following recitation of facts is taken, sometimes verbatim, from Defendant’s Statement of 28 Undisputed Facts. 1 Despite CCS’ detailed records of its communications with Plaintiff, and despite the 2 fact that neither the call log nor the actual recordings of the two completed call 3 documents show any request by Plaintiff that CCS stop calling, Plaintiff nonetheless 4 testified in his deposition that he in fact “mentioned on some [calls] for them not to call 5 me anymore.” Pl.’s Dep., ECF No. 11-2 at 26:2-3. Plaintiff was unable, however, to 6 provide any further support for that very generalized statement other than to claim he 7 asked CCS to stop somewhere “between November and January” of 2017. Id. at 26:208 21. Plaintiff has failed to indicate who he spoke with at CCS and admits he took no 9 notes concerning the substance of any conversation. Id. at 20:25-21:1 . The only 10 additional corroboration he offered were various screenshots of an application he used 11 to block unwanted calls, but those screenshots (Ex. I to the Stoddard Decl.) contain no 12 identifying data linking any such calls to CCS. [13] 14 STANDARD [15] 16 The Federal Rules of Civil Procedure provide for summary judgment when “the 17 movant shows that there is no genuine dispute as to any material fact and the movant is 18 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. 19 Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of Rule 56 is to 20 dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 325 . 21 In a summary judgment motion, the moving party always bears the initial 22 responsibility of informing the court of the basis for the motion and identifying the 23 portions in the record “which it believes demonstrate the absence of a genuine issue of 24 material fact.” Celotex, 477 U.S. at 323 . If the moving party meets its initial 25 responsibility, the burden then shifts to the opposing party to establish that a genuine 26 issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith 27 Radio Corp., 475 U.S. 574, 586-87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S. 28 253, 288-89 (1968). 1 In attempting to establish the existence or non-existence of a genuine factual 2 dispute, the party must support its assertion by “citing to particular parts of materials in 3 the record, including depositions, documents, electronically stored information, 4 affidavits[,] or declarations . . . or other materials; or showing that the materials cited do 5 not establish the absence or presence of a genuine dispute, or that an adverse party 6 cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The 7 opposing party must demonstrate that the fact in contention is material, i.e., a fact that 8 might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 9 Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v. Local No. 169, Assoc. of W. Pulp and 10 Paper Workers, 971 F.2d 347 , 355 (9th Cir. 1987). The opposing party must also 11 demonstrate that the dispute about a material fact “is ‘genuine,’ that is, if the evidence is 12 such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 13 477 U.S. at 248. In other words, the judge needs to answer the preliminary question 14 before the evidence is left to the jury of “not whether there is literally no evidence, but 15 whether there is any upon which a jury could properly proceed to find a verdict for the 16 party producing it, upon whom the onus of proof is imposed.” Anderson, 477 U.S. at 251 17 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original). 18 As the Supreme Court explained, “[w]hen the moving party has carried its burden under 19 Rule [56(a)], its opponent must do more than simply show that there is some 20 metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 . Therefore, 21 “[w]here the record taken as a whole could not lead a rational trier of fact to find for the 22 nonmoving party, there is no ‘genuine issue for trial.’” Id. at 587 . 23 In resolving a summary judgment motion, the evidence of the opposing party is to 24 be believed, and all reasonable inferences that may be drawn from the facts placed 25 before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 26 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s 27 obligation to produce a factual predicate from which the inference may be drawn. 28 /// 1 Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, [2] 810 F.2d 898 (9th Cir. 1987). [3] 4 ANALYSIS [5] A. FDCPA Claims [6] The FDCPA prohibits debt collectors from engaging in “any conduct the natural [7] consequence of which is to harass, oppress, or abuse any person in connection with the [8] collection of any debt.” 15 U.S.C. § 1692d. Plaintiff’s Complaint cites generally to that [9] statute at ¶ 28, and more specifically goes on to allege a violation of subdivision (5), [10] which prohibits “[c]ausing a telephone to ring or engaging any [person in telephone [11] conversation repeatedly or continuously with intent to annoy, abuse, or harass any [12] person at the called number.” Compl. ¶ 39. According to Plaintiff, CCS violated these [13] provisions “when it placed repetitive and harassing calls to Plaintiff’s cellular telephone… [14] even though Plaintiff informed Defendant they were calling an incorrect phone number [15] and to stop calling him.” Id., ¶ 30. Defendant contends that the evidence it has [16] submitted entitles it to summary judgment as to Plaintiff’s FDCPA claims, and maintains [17] that in light of that evidence, Plaintiff’s uncorroborated deposition testimony, without [18] more, fails to raise any triable issue of material fact. [19] Plaintiff maintains that, despite CCS’ call logs and telephone recordings of the two [20] actual conversations its representatives had with Plaintiff concerning the underlying [21] debt, CCS is not entitled to summary judgment because it violated the FDCPA by [22] repeatedly calling his cellular telephone number after he verbally requested the calls to [23] stop. The Court disagrees. [24] It should initially be noted that Plaintiff makes no claim that he notified CCS in [25] writing to cease any further communications. Had such written request been made, [26] there is no question that additional calls would have triggered FDCPA liability under [27] 15 U.S.C. § 1692c(c), which prohibits further communication “[i]f a consumer notifies [28] 1 [the] debt collector in writing . . . that the consumer wishes the debt collector to cease 2 further communication with the consumer.” Consequently, the viability of Plaintiff’s 3 FDCPA claims necessarily rests upon whether Plaintiff has shown that verbal request 4 was made and that the collection calls continued unabated. The Ninth Circuit has 5 recognized under the appropriate circumstances even an oral demand to stop calling 6 can trigger liability under the FDCPA for harassing, abusive, and/or oppressive activities 7 by a debt collector thereafter. Fox v. Citicorp Credit Services, 15 F.3d 1507, 1517 (9th 8 Cir. 1994). 9 Plaintiff has nonetheless failed to adequately rebut the evidence submitted by 10 CCS that no verbal request was made. As set forth above, Plaintiff offers only his vague 11 and unsubstantiated deposition testimony to counter the solid evidence of calls made 12 offered by CCS, and this is insufficient. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 13 1054 (9th Cir. 2002) (holding that a plaintiff’s uncorroborated testimony is insufficient to 14 overcome a motion for summary judgment). Plaintiff’s self-serving testimony is not 15 enough to create a triable issue of material fact. Plaintiff cannot say who at CCS he 16 spoke with or on how many occasions such conversations occurred. He offers no notes 17 of any conversations he purports to have had and cannot even say when the 18 conversations took place any more definitely that that they occurred over a period of 19 some three months. Moreover, Plaintiff’s screenshot of a mobile application of blocked 20 calls also does not demonstrate that he told CCS to stop calling him, since no link 21 between any of the purportedly blocked calls and CCS has been established. Def.’s 22 Mot. for Summ. J. (“MSJ”), ECF No. 9-2 at 5:18-19. What the evidence does show is 23 that out of the fifteen calls placed, CCS’ only two calls were answered have no record of 24 Plaintiff asking that the calls cease, only that Plaintiff planned to dispute the charges with 25 Comcast. SUF ¶ 4. 26 Additionally, fifteen calls in the span of seven months does not evidence any 27 intent by CCS to annoy, harass, or abuse Plaintiff. See, e.g., Muzyka v. Rash Curtis & 28 Assocs., No. 2:18-CV-01097 WBS, 2019 WL 2869114 at *6 (E.D. Cal. July 3, 2019) 1 (determining if there is actionable harassment or annoyance turns not only on the 2 volume of calls made, but also on the context and pattern of the calls). Additionally, in 3 the case at bar there is no evidence that CCS called Plaintiff multiple times in a single 4 day, called Plaintiff at odd hours, or called Plaintiff immediately after he had just hung up 5 following an earlier call. While those circumstances can trigger FDCPA liability, they are 6 simply not present here. 7 Indeed, this court’s decision in Arteaga v. Asset Acceptance, LLC, [8] 733 F. Supp. 2d 1218, 1229 (E.D. Cal. 2010) is more analogous here. In Arteaga, the 9 collector called eighteen times in approximately five months. Id. at 1235 . As here, there 10 was no evidence that calls were made immediately after the Plaintiff hung up, no 11 evidence that multiple calls were made in a single day, and no evidence that calls were 12 made at odd times or to Plaintiff’s employer family or friends. Id. at 1229 . On those 13 facts the Arteaga court granted summary judgment in the defendant’s favor. Id. at 14 1233.4 15 While Plaintiff asserts that the determination of whether conduct in collecting a 16 debt amounts to harassment should typically be a question of fact left to a jury (see Pl.’s 17 Opp’n to MSJ, at 8:24-9:1-2), under the circumstances of the present matter that 18 argument is unavailing. It bears noting that several courts have found insufficient 19 evidence that a debt collector placed calls with the intent to harass or annoy for 20 purposes of FDCPA liability, even where the volume of calls placed were far greater than 21 that alleged here. See, e.g., Jiminez v. Accounts Receivable Mgmt., No. 09–CV-09070– 22 GW(AJWx), 2010 WL 5829206 , at *6 (C.D. Cal. June 24, 2010) (summary judgment 23 granted on § 1692d claim where the defendant placed 69 calls over a 115-day period 24 and placed more than 2 calls in one day). Tucker v. The CBE Group Inc., [25] 710 F. Supp. 2d 1301, 1305-1306 (M.D. Fla. 2010) (57 calls placed to the plaintiff, [26] 4 The Court recognizes that, unlike the present case, in Arteaga there was not even a claim that [27] the plaintiff had asked the debt collector there to stop calling. Given the fact, however, that the only evidence of that contention here is Plaintiff’s own self-serving testimony as enumerated above, that 28 difference is not dispositive. 1 including 7 calls in one day, did not constitute actionable harassment). Def.’s Reply to 2 Opp’n, ECF No. 13 at 3:3-9. Accordingly, and for all the reasons set forth above, Plaintiff 3 has failed to rebut Defendant’s showing that it lacked any intent to harass, abuse, or 4 annoy for purposes of incurring FDCPA liability. Therefore, summary judgment in favor 5 of CCS on Plaintiff’s FDCPA claims is proper. 6 B. Plaintiff’s Claim Under The Rosenthal Act 7 Under the Rosenthal Act, “every debt collector collecting or attempting to collect a 8 consumer debt shall comply with the provisions of Sections 1692b to 1692j…” Cal. Civ. 9 Code § 1788.17. By expressly incorporating the standard under the federal FDCPA in 10 defining liability for the same conduct under state law, the scope of both statutory 11 schemes appears coextensive and the same analysis in assessing liability under the 12 FDCPA also applies to the Rosenthal Act. See Joseph v. J.J. MacIntryre Cos., LLC, [13] 238 F. Supp. 2d 1158, 1168 (N.D. Cal. 2002). In addition, Plaintiff’s complaint shows 14 that he bases his Rosenthal Act claim on the same premise as his FDCPA claim; 15 namely, that CCS engaged in excessive calling even after he verbally communicated for 16 it to stop. Since the Court finds that Plaintiff has failed to provide enough evidence to 17 support the FDCPA claim, Plaintiff also fails to fulfill the elements of a Rosenthal Act 18 claim and Defendant’s request for summary adjudication as to that claim is also 19 appropriate. [20] 21 CONCLUSION [22] 23 For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF 24 No. 9) is GRANTED. Defendant is accordingly entitled to judgment as a matter of law 25 with respect to Plaintiff’s claims under the FDCPA and the Rosenthal Act. Because 26 Plaintiff did not contest the propriety of summary adjudication as to his remaining claim 27 under the TCPA, Defendant is also entitled to judgment as to that claim. 28 /// VEYA ED INI ENGIN MEME IA EATEN Vv VI 1 | The matter having now been concluded in its entirety, the Clerk of Court is directed to 2 | enter judgment in Defendant’s favor and close this file. 3 IT |S SO ORDERED. 4 | Dated: February 18, 2020 □ 6 MORRISON C. he UNITED STATES DISTRI