Romero v. Monterey Financial Services, LLC

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 ANDRES ROMERO, Case No.: 19cv1781 JM (KSC) 12 Plaintiff, 13 v. ORDER ON CROSS MOTIONS FOR 14 MONTEREY FINANCIAL SERVICES, SUMMARY JUDGMENT LLC; and EQUIFAX INFORMATION [15] SERVICES, LLC, [16] Defendants. [18] 19 Defendant Monterey Financial Services, LLC (“Monterey”) moves for summary 20 judgment.1 (Doc. No. 44.) Plaintiff also moves for summary judgment. (Doc. No. 56.) 21 The motions have been briefed and the court finds them suitable for submission without 22 oral argument in accordance with Civil Local Rule 7.1(d)(1). For the below reasons, the 23 motions are GRANTED IN PART and DENIED N PART. [25] 26 1 Defendant Equifax Financial Services, LLC (“Equifax”) also moved for summary 27 judgment. (Doc. No. 54.) On December 4, 2020, however, Plaintiff filed notice that his claims against Equifax were resolved, and his only active claims are against Monterey. [28] 1 I. BACKGROUND 2 The parties do not dispute the following facts. Monterey is in the business of 3 purchasing and collecting debts. Monterey collected debts for a company called 4 Emporium, which is not a party to this case. Two cell phones, a pair of headphones, and a 5 portable phone charger were purchased online using some of Plaintiff’s information. The 6 goods were delivered to a Texas address. Plaintiff claims he never lived in Texas, does not 7 know anyone that lives in Texas, and did not receive the items. 8 Emporium assigned the debt related to the phone purchase to Monterey for 9 “servicing.” As part of the assignment, Emporium provided Monterey with Plaintiff’s 10 name and social security number. Emporium gave the account a “fraud score.” At the 11 time of assignment, the debt was not past due and two payments had been made. When 12 the debt was not paid, Monterey attempted to collect the debt. Monterey sent a letter and 13 called Plaintiff. Plaintiff said the account was not his. Monterey began reporting the 14 account on Plaintiff’s credit report. As a result of the call, however, Monterey reported the 15 account as disputed. Plaintiff disputed the account by submitting multiple consumer 16 dispute verifications (CDVs) in which he claimed the account was fraudulent. Some of the 17 CDVs contained a report of identity theft Plaintiff made to police. 18 Monterey investigated the dispute and considered the following: (1) the “import file” 19 it received upon assignment contained Plaintiff’s name, date of birth, and social security 20 number; (2) Emporium had already conducted a “fraud check;” and (3) several payments 21 were made on the account. Monterey continued to attempt to collect the debt and sent 22 Plaintiff a letter including the underlying agreement as proof of the debt. Plaintiff 23 subsequently called Monterey, and a representative suggested sending proof of where he 24 lived at the time the agreement was executed. Plaintiff did not provide any further 25 information to Monterey. Plaintiff left a voicemail for Monterey granting permission to 26 speak with his attorney. When a collection supervisor spoke with Plaintiff’s attorney, the 27 supervisor said that Monterey would delete the account from Plaintiff’s credit report, and 28 did so that same day. 1 Plaintiff subsequently filed the instant action alleging violations of: (1) the Fair Debt 2 Collection Practices Act (FDCPA), 15 U.S.C. § 1692 , et seq.; (2) the Rosenthal Fair Debt 3 Collection Practices Act (RFDCPA), CAL. CIV. CODE § 1788, et seq.; (3) the Fair Credit 4 Reporting Act (FCRA), 15 U.S.C. §1681 , et seq.; (4) the California Consumer Credit 5 Reporting Agencies Act (CCCRAA), CAL. CIV. CODE § 1785.1, et seq.; (5) and the 6 California Identity Theft Act (CITA), id. § 1798.92, et seq. In his opposition to Monterey’s 7 motion, however, Plaintiff voluntarily agreed to dismiss his FDCPA claim. (Doc. No. 49 8 at 16 n.3.) 9 II. LEGAL STANDARDS 10 “The court shall grant summary judgment if the movant shows that there is no 11 genuine issue as to any material fact and that the movant is entitled to judgment as a matter 12 of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial burden of informing the 13 court of the basis for its motion and identifying those portions of the record demonstrating 14 the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317 , 323 15 (1986). “A material issue of fact is one that affects the outcome of the litigation and 16 requires a trial to resolve the parties’ differing versions of the truth.” SEC v. Seaboard, [17] 677 F.2d 1301 , 1306 (9th Cir. 1982). Once the moving party has done so, the nonmoving 18 party must “go beyond the pleadings and by [its] own affidavits, or by the depositions, 19 answers to interrogatories, and admissions on file, designate specific facts showing that 20 there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (internal quotation and citation 21 omitted). The court must examine the evidence in the light most favorable to the non22 moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The court may 23 not weigh evidence or make credibility determinations. Berg v. Kincheloe, 794 F.2d 457 , 24 459 (9th Cir. 1986). Any doubt as to the existence of any issue of material fact requires 25 denial of the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary 26 judgment can only be entered “if, under the governing law, there can be but one reasonable 27 conclusion as to the verdict.” Anderson, 477 U.S. at 250 . Even in the absence of a factual 28 dispute, a district court has the power to “deny summary judgment in a case where there is 1 reason to believe that the better course would be to proceed to a full trial.” Id. at 255 . The 2 trial court’s inquiry is not whether a reasonable trier of fact is likely to find in favor of the 3 opposing party, but whether it could do so. McIndoe v. Huntington Ingals, 817 F.3d 1170 , 4 1176 (9th Cir. 2016). Where cross motions for summary judgment are filed, the court must 5 examine the entire record before ruling on either motion. Fair Hous. Council of Riverside 6 Cty., Inc. v. Riverside Two, 249 F.3d 1132 , 1137 (9th Cir. 2001). 7 III. DISCUSSION 8 Both parties move for summary judgment on: (1) whether Monterey conducted a 9 reasonable investigation of Plaintiff’s dispute under the FCRA; (2) whether Monterey’s 10 investigation constituted a willful violation of the FCRA; (3) whether the debt at issue was 11 a consumer debt under RFDCPA; (4) whether Monterey knew or should have known the 12 information it reported to the credit reporting agencies was inaccurate under the CCCRAA; 13 and (5) whether Monterey was a “claimant” under CITA. Monterey also argues Plaintiff’s 14 claim for emotional damages under both the FCRA and CCCRAA fails because it is not 15 supported by competent evidence of genuine injury, and that Plaintiff’s claim for actual 16 damages in the form of emotional distress under RFDCPA fails because he is unable to 17 establish the elements of a claim for intentional infliction of emotional distress (IIED). 18 Summary judgment adjudicates entire claims or legal issues, not questions of fact. 19 In large measure, the parties ask this court to determine, as a matter of law, questions that 20 are essentially factual, i.e., the reasonableness of an investigation by Monterey under all 21 the circumstances, whether Monterey acted willfully, and whether Monterey had actual or 22 constructive knowledge of the inaccuracy of reported information. These are questions 23 best left to the trier of fact. 24 Notwithstanding the limitation of this court to adjudicate these factual issues as a 25 matter of law, the court engages in the following analysis which may be of assistance to 26 the parties in evaluating their respective positions. 27 /// 28 /// 1 A. FCRA 2 1. Reasonable Investigation 3 Under the FCRA, after receiving notice of Plaintiff’s dispute, Monterey was required 4 to “(A) conduct an investigation with respect to the disputed information; (B) review all 5 relevant information provided by the consumer reporting agency[; and] (C) report the 6 results of the investigation to the consumer reporting agency[.]” 15 U.S.C. § 1681s7 2(b)(1). The violation must be negligent or willful. See 15 U.S.C. §§ 1681n, 1681o. “To 8 prove a negligent violation, a plaintiff must show that the defendant acted pursuant to an 9 objectively unreasonable interpretation of the statute.” Marino v. Ocwen Loan Servicing 10 LLC, 978 F.3d 669, 673 (9th Cir. 2020) (citation omitted). 11 Here, the parties genuinely dispute multiple facts that are material to the 12 reasonableness of Monterey’s investigation under the FCRA. For example, the parties 13 dispute whether Monterey investigated: (1) whether Plaintiff lived in Texas or had family 14 or friends in Texas, (Doc. No. 50-1 ¶ 68); (2) whether the telephone number listed in the 15 underlying agreement belonged to Plaintiff, (id. ¶ 71); (3) whether the IP address that was 16 used to electronically sign the agreement belonged to Plaintiff; and (4) whether the e-mail 17 address contained in the “import file” belonged to Plaintiff, (id. ¶¶ 65-66). The parties also 18 dispute whether the “fraud checks” conducted by Emporium verified whether the bank 19 account belonged to Plaintiff, (id. ¶ 64), and whether the police report provided by Plaintiff 20 included the results of an investigation, (Doc. No. 49-27 ¶ 21). Although Monterey admits 21 that it “believed it was probable that the [a]ccount was opened fraudulently,” it nonetheless 22 disputes Plaintiff was a “victim of identity theft.” (Doc. No. 50-1 ¶ 100.) 23 Additionally, a reasonable trier of fact could find Monterey’s investigation was not 24 objectively reasonable. For example, it is undisputed that Plaintiff told Monterey he did 25 not make the purchase, and Monterey eventually “deleted” the account. (Id. ¶¶ 82-83, 90.) 26 It is also undisputed that Plaintiff reported the incident to the police, provided Monterey 27 with a copy of the police report, and the detective who took the report called Monterey, but 28 Monterey did not call him back. (Id. ¶¶ 82-83, 93-95.) It is also undisputed the goods 1 purchased online were shipped to a Texas address, and Monterey apparently does not 2 dispute that Plaintiff never lived in Texas and never received the goods.2 (Doc. No. 50-1 3 ¶ 48.) Furthermore, it is undisputed that Monterey did not investigate or trace the IP 4 address that was used to electronically sign the agreement, (id. ¶ 67), or investigate the 5 involvement of a person identified by Plaintiff as the possible identity thief, (id. ¶ 74). 6 A reasonable finder of fact could also find, however, that Monterey’s investigation 7 was objectively reasonable. For example, it is undisputed that Monterey conducted “skip8 tracing,” (id. ¶ 75-76), reviewed all the documents in its possession, spoke with Plaintiff, 9 and suggested some additional documents Plaintiff could provide, but Plaintiff never 10 provided any further information, (Doc. No. 49-27 ¶¶ 31-32). It is also undisputed that 11 Monterey “considered” the fact that (1) the “import file” contained Plaintiff’s name, date 12 of birth, and social security number; (2) the product was delivered; (3) Emporium 13 conducted some form of a fraud check as part of its own underwriting; and (4) some 14 payments were made on the account. (Id. ¶ 25.)3 15 Monterey primarily argues that under Gorman v. Wolpoff & Abramson, LLP, 584 16 F.3d 1147, 1161 (9th Cir. 2009), it was only required to review its own files. (Doc. No. 50 17 at 2.) However, this was not Gorman’s holding. Rather, the court stated the reasonableness 18 of an investigation under 15 U.S.C. § 1681s-2(b) is “generally a question for a finder of 19 fact.” Id. The court nonetheless granted summary judgment for defendant because it “did [21] 2 Monterey objects to the statement that Plaintiff never lived in Texas “to the extent that [22] this statement suggests that [Monterey] knew, or was able to ascertain, this fact prior to the 23 completion of the extensive discovery that occurred in this litigation,” but “following the completion of discovery this fact is undisputed.” (Doc. No. 50-1 ¶ 48.) [24] 25 3 The parties also make boilerplate evidentiary objections to nearly every material fact put forth by the other, disputed or otherwise. Because the court’s decision does not hinge on [26] the admissibility on any one particular fact or set of facts, at this stage in the litigation, the 27 parties’ numerous evidentiary objections are OVERRULED AS MOOT. The parties will, of course, have the opportunity to make motions in limine prior to trial and to make [28] 1 review all the pertinent records in its possession, which revealed that an initial investigation 2 had taken place,” and because the defendant had “gone outside its own records to 3 investigate the allegations.” Id. Here, it is not reasonable to infer the “fraud score” 4 performed by Emporium constituted an “investigation” to the degree the court found 5 sufficient in Gorman. With the exception of asking Plaintiff for more documents, it is also 6 not clear that Monterey’s investigation went much beyond reviewing the records in its 7 “possession.” For example, as discussed above, Monterey admittedly did not call back the 8 detective that took Plaintiff’s report of identity theft. Finally, it is not clear the parties in 9 Gorman disputed as many material facts as the parties do here, or that the facts surrounding 10 the investigation in Gorman are reasonably comparable to the facts in this case. Indeed, 11 the reasonableness of any investigation involving identity theft is likely to be a highly 12 individualized and fact-intensive inquiry. Accordingly, Gorman does not require a finding 13 as a matter of law that Monterey’s investigation was reasonable.4 14 Monterey also argues Plaintiff has not met his burden because the only evidence 15 Plaintiff provided in support of his claim of identity theft was the police report that 16 contained nothing but a victim’s statement, and Plaintiff failed to provide bank statements 17 and utility bills that Monterey requested to corroborate Plaintiff’s fraud claims. (Doc. No. 18 44-1 at 26.) As noted above, however, Plaintiff points to multiple facts outside of the police 19 report suggesting that Monterey’s investigation was not reasonable. Certainly, Monterey’s [21] 22 4 In its reply, Monterey contends it considered documents “outside its file,” including 23 Emporium’s records, the underlying agreement, and police reports. (Doc. No. 50 at 2.) In addition to being raised for the first time in its reply, it is not apparent that any of these [24] documents were actually “outside its file,” or that reviewing these records, in addition to 25 the records “in” the file, warrants a finding that Monterey’s investigation was reasonable as a matter of law. As noted above, while the court in Gorman credited the defendant for [26] going “outside its own records” to investigate the allegations, the investigation went 27 beyond reviewing the records in the defendant’s “possession.” 584 F.3d at 1161. Here, there is nothing to suggest the records Monterey reviewed were not already in its [28] 1 apparent request for additional information, and Plaintiff’s undisputed failure to do so, 2 weighs in favor of the reasonableness of the investigation.5 These facts are not so weighty, 3 however, to require a finding that Monterey’s investigation was reasonable as a matter of 4 law, and Monterey cites no authority suggesting otherwise. 5 Accordingly, the parties’ cross motions for summary judgment on the 6 reasonableness of Monterey’s investigation under the FCRA are DENIED. However, 7 Plaintiff moves for summary judgment as to the remaining prima facia elements of his 8 FCRA claim under 15 U.S.C. § 1681s-2(b), including: (1) Monterey is a “furnisher;” 9 (2) Plaintiff disputed the credit reporting as inaccurate; (3) the credit reporting agency 10 notified the furnisher of the alleged inaccurate information; and (4) the reporting was 11 inaccurate. (Doc. No. 56 at 8-11.) Because these “elements” are undisputed, and Monterey 12 does not oppose Plaintiff’s motion as to these “issues,” Plaintiff’s motion for summary 13 judgment as to these remaining “elements” of his FCRA claim under 15 U.S.C. § 1681s14 2(b) is GRANTED. 15 2. Willful Violation 16 As noted above, to succeed at trial, Plaintiff must show Monterey’s violation of the 17 FCRA was either negligent or willful. See 15 U.S.C. §§ 1681n, 1681o. Statutory and 18 punitive damages are available for willful violations. 15 U.S.C. § 1681n(a). Willfulness 19 may be shown by a reckless disregard of a statutory duty. Safeco Ins. Co. of Am. v. Burr, [20] 551 U.S. 47, 57 (2007). “To prove a willful violation, a plaintiff must show not only that 21 the defendant’s interpretation was objectively unreasonable, but also that the defendant ran 22 a risk of violating the statute that was substantially greater than the risk associated with a 23 reading that was merely careless.” Marino, 978 F.3d at 673 (9th Cir. 2020) (citing Safeco, [25] 26 5 Monterey also makes the cursory argument that the “IP address issue” and Plaintiff’s 27 identification of the possible identity thief does not show fraud. (Doc. No. 50 at 3.) The issue is not whether Plaintiff showed fraud, however, but whether Monterey’s investigation [1] 551 U.S. at 57 ). “That is, the defendant must have taken action involving ‘an unjustifiably 2 high risk of harm that is either known or so obvious that it should be known.’” Taylor v. 3 First Advantage Background Servs. Corp, 207 F. Supp. 3d 1095, 1101 (N.D. Cal. 2016) 4 (quoting Safeco, 551 U.S. at 68 ). 5 As discussed above, there is a genuine dispute as to whether Monterey’s 6 interpretation of its investigatory obligation under 15 U.S.C. § 1681s-2(b)(1) was 7 objectively unreasonable. Therefore, it cannot be said, as a matter of law, that Monterey’s 8 investigation was not only objectively unreasonable, but that Monterey ran the risk of 9 violating the statute that was substantially greater than the risk associated with a reading 10 that was merely careless. Accordingly, Plaintiff’s motion for summary judgment that 11 Monterey willfully violated the FCRA is DENIED. 12 With respect to Monterey’s motion, it is a closer question whether a reasonable trier 13 of fact could find Monterey’s investigation was both careless and demonstrated a reckless 14 disregard for its statutory duty. However, Plaintiff points to no evidence in the record 15 showing willfulness as opposed to mere carelessness. Instead, Plaintiff argues that 16 Monterey admits that its investigation consisted solely of “data confirmation,” which 17 several non-controlling cases have found “reprehensible” and worthy of punitive damages 18 because it is a “hands off” method of investigation. (Doc. No. 49 at 25-26.) The facts of 19 those cases, like the facts in this case and those in Gorman, are unique and distinguishable. 20 For example, in Brim v. Midland Credit Mgmt., Inc., 795 F. Supp. 2d 1255, 1263 (N.D. 21 Ala. 2011 ), the investigations were conducted almost entirely by computer. In Marchisio 22 v. Carrington Mortg. Servs., LLC, 919 F.3d 1288, 1299 (11th Cir. 2019), the investigation 23 consisted of a review of an outdated internal database. Although Monterey may have 24 willfully chosen not to pursue particular lines of investigation, e.g., declining to return a 25 call from the detective who took Plaintiff’s police report, this does not show, as a matter 26 of law, that Monterey willfully disregarded its statutory duties to conduct a reasonable 27 investigation. Accordingly, Monterey’s motion for summary judgment that it did not 28 willfully violate the FCRA is GRANTED. 1 3. Genuine Injury 2 Monterey argues Plaintiff’s claim for emotional damages under both the FCRA and 3 CCCRAA fails because it must be supported by “competent evidence of ‘genuine injury,’ 4 which ‘may be evidenced by one’s conduct and observed by others.’” (Doc. No. 44-1 at 5 29 (quoting Taylor v. Tenant Tracker, Inc., 710 F.3d 824, 828 (8th Cir. 2013)).) Monterey 6 argues that Plaintiff’s testimony that he was “very nervous” is conclusory and should be 7 disregarded.6 (Id.) Plaintiff’s testimony was not, however, limited solely to claiming he 8 was “very nervous.” Plaintiff testified that from December 2017 to January 2019, i.e., the 9 period when the debt appeared on his credit report, he “got very nervous, to the point where 10 [he] couldn’t stop thinking about it, to the point where [he] couldn’t sleep sometimes,” and 11 that he was afraid that if his employer, the U.S. Navy, found out, he would be in trouble 12 and could lose his security clearance. (Doc. No. 49-27 at 20 ¶ 43.) Plaintiff also testified 13 that he felt offended by Monterey’s refusal to consider the police report he filed, stating, 14 “I’m not about to lie to the police about what happened to me.” (Doc. No. 49-26 at 53.) 15 Monterey further argues Plaintiff’s wife contradicted Plaintiff’s testimony because 16 she testified that Plaintiff’s “symptoms” began in 2015 when his mother was diagnosed 17 with cancer, not 2017 when Plaintiff first spoke with Monterey. (Doc. No. 44-1 at 29-30.) 18 Plaintiff’s wife’s testimony is not, however, as contradictory as Monterey claims. Rather, 19 Plaintiff’s wife testified: (1) Plaintiff was “emotionally . . . . very distraught . . . . [w]hen 20 he first learned . . . . that somebody used his credit card without him knowing,” (Doc. No. 21 44-6 at 18); (2) when Plaintiff is distraught “[h]e gets very nervous, and when he does, he 22 will drink sometimes more than he intends to [and] he will smoke more than he intends 23 to,” (id. at 19); (3) Plaintiff is a “worrywart” and in 2015 Plaintiff’s “mom got cancer and 24 that has – ever since then, you know, it’s changed more so . . . .” and Plaintiff would “get [26] 27 6 Plaintiff does not concurrently move for summary judgment as to this or any damages issue. See Doc. No. 56-1 at 7 (“Romero now brings this Motion with regard to the issue of [28] 1 more emotional,” (id. at 19-20); and (4) Plaintiff took sleeping medication “maybe 30 times 2 a year,” but she didn’t know the exact timeframe when he took the medication except that 3 he stopped “maybe” in December 2019, (id. at 21-22). At most, Plaintiff’s wife’s 4 testimony casts doubt on Plaintiff’s credibility as to when his emotional distress first began, 5 which is not appropriate for resolution on summary judgment. 6 Finally, Monterey cites several non-controlling circuit court decisions in which the 7 court awarded summary judgment to the defendant based on the plaintiff’s vague, 8 conclusory, and uncorroborated deposition testimony regarding emotional damages. (Doc. 9 No. 44-1 at 30.) Here, however, Plaintiff’s testimony is corroborated, at least to some 10 degree, by his wife’s testimony, and Plaintiff’s testimony includes detail that was 11 apparently lacking in the cases cited by Monterey. See Bacharach v. Suntrust Mortg., Inc., [12] 827 F.3d 432, 436 (5th Cir. 2016) (uncorroborated testimony that plaintiff was a “complete 13 wreck” is insufficient under circuit precedent); Taylor, 710 F.3d at 829 (plaintiff failed to 14 offer any reasonable detail about the nature and extent of her alleged emotional distress, 15 and could only corroborate a brief crying episode); Ruffin-Thompkins v. Experian Info. 16 Sols., Inc., 422 F.3d 603, 610 (7th Cir. 2005) (merely alleging that defendant’s actions were 17 “inherently degrading or humiliating” was insufficient under the circuit’s high threshold 18 for proof of damages for emotional distress). Monterey cites no authority suggesting a 19 strict standard for emotional damages exists or should be applied in the Ninth Circuit, or 20 that Plaintiff’s testimony fails to meet such a standard.7 Accordingly, Monterey’s motion 21 for summary judgment as to Plaintiff’s emotional damages under the FCRA and CCCRAA 22 is DENIED. [25] 26 7 Monterey also points out that Plaintiff did not seek medical treatment or incur economic 27 damages. (Doc. No. 44-1 at 29.) Monterey cites no authority, however, supporting its implied argument that medical treatment or economic damages are required to show [28] 1 B. RFDCPA 2 The RFDCPA “mimics or incorporates by reference the FDCPA’s requirements.” 3 Riggs v. Prober & Raphel, 681 F.3d 1097, 1100 (9th Cir. 2012). To establish a violation 4 of the RFDCPA, a plaintiff must show: (1) the defendant was attempting to collect a 5 “consumer debt;” (2) the defendant was a “debt collector;” (3) the plaintiff was a “debtor;” 6 and (4) the defendant’s collection activities violated the FDCPA and thus the RFDCPA. 7 See CAL. CIV. CODE § 1788.17; see also Barvie v. Bank of Am., N.A., No. 18-CV-449-JLS 8 (BGS), 2018 WL 4537723 , at *3 (S.D. Cal. Sept. 21, 2018). 9 1. Consumer Debt 10 The RFDCPA defines “consumer debt” as “money, property, or their equivalent, due 11 or owing or alleged to be due or owing from a natural person by reason of a consumer 12 credit transaction.” CAL. CIV. CODE § 1788.2(f). “Consumer credit transaction” is defined 13 as “a transaction between a natural person and another person in which property, services, 14 or money is acquired on credit by that natural person from the other person primarily for 15 personal, family, or household purposes.” Id. § 1788.2(e). Monterey argues Plaintiff’s 16 RFDCPA claim fails because “Plaintiff is unable to establish that the ‘debt’ at issue is 17 consumer debt entered into for personal, family, or household reasons” because, when 18 Monterey first called him, he denied knowing anything about the account or the creditor. 19 (Doc. Nos. 44-1 at 9, 18-19; 49-27 at ¶ 16.) Plaintiff argues the debt is a “consumer debt” 20 because: (1) the underlying agreement refers to the signatory as a “customer” and 21 “consumer,” (2) the items purchased, i.e., two cell phones and some accessories, are 22 consumer in nature; (3) Monterey’s communications contain legally required consumer 23 debt collection disclosures; (4) Monterey reported the debt on Plaintiff’s consumer credit 24 report, not a business credit report; and (5) the policies Monterey provided in discovery 25 refer to the collection of consumer debts for retail products. (Doc. No. 49 at 20.) 26 Here, Monterey does not genuinely dispute any of these facts upon which Plaintiff 27 relies to show the debt was a consumer debt, and Monterey does not argue these facts are [28] 1 immaterial. Monterey also cites no controlling authority suggesting Plaintiff’s initial 2 ignorance concerning the alleged theft of his identity requires finding, as a matter of law, 3 that the purchase of two cell phones in his name was not a consumer debt under the 4 RFDCPA. In Martin v. Allied Interstate, LLC, 192 F. Supp. 3d 1296, 1306 (S.D. Fla. 5 2016), the main case upon which Monterey relies, the court found that “a victim of identity 6 theft or mistaken identity need not present evidence of the intent or purpose of an unknown 7 person in entering the transaction, but should present evidence of the identity theft or 8 mistaken identity along with some evidence showing that the debt is consumer in nature.” 9 To the extent this standard should be applied here, as discussed above, Plaintiff has shown 10 evidence of the identity theft along with some evidence the debt is consumer in nature. See 11 also Toroussian v. Asset Acceptance, LLC, No. CV 12-03519 DDP (AGRx), 2013 WL 12 5524831, at *6 (C.D. Cal. Oct. 4, 2013) (plaintiff failed to show a “debt” under the FDCPA 13 because she did not even attempt to identify the fraudulent charges made in her name). 14 With respect to Plaintiff’s motion for summary judgment on the consumer debt 15 issue, the evidence of identity theft and a consumer debt does not necessarily prove, as a 16 matter of law, the debt related to the purchase of two cell phones was for personal, family, 17 or household purposes. Because there is no undisputed evidence as to who purchased the 18 cell phones and for what reason, a reasonable trier of fact could find Plaintiff has not met 19 his burden as to this element of his RFDCPA claim. Also, in his own motion for summary [21] 22 8 Instead, Monterey repeatedly argues Plaintiff’s declaration should be disregarded under 23 Civil Local Rule 5.4(f) because he did not hand-sign it in violation of Section 2(f) of the CM/ECF Administrative Policies and Procedures Manual. (Doc. No. 50 at 9 n.1.) Section [24] 2(f) does not specifically state that non-registered users must “hand-sign” documents, only 25 that “the filing party must scan and electronically file the original document.” Regardless, Local Rule 5.4(f) is discretionary. Civ. L.R. 5.4(f) (“The Court may direct the Clerk to [26] strike from the record any document which fails to comply with the requirements for 27 electronic filing set forth in the Administrative Policies and Procedures Manual.”) Given the COVID-19 pandemic and Plaintiff’s service in the U.S. Navy, the court declines [28] 1 judgment on the issue of consumer debt, Plaintiff merely incorporates by reference its 2 opposition to Monterey’s motion. (Doc. No. 56-1 at 18.) Accordingly, the parties’ cross 3 motions for summary judgment on whether the debt at issue is a “consumer debt” under 4 the RFDCPA are DENIED. 5 Plaintiff also moves for summary judgment on the remaining elements of his 6 RFDCPA claim, including that Monterey is a “debt collector,” Plaintiff is a “debtor,” and 7 Monterey violated the FDCPA. (Doc. No. 56-1 at 17-22.) Although Monterey does not 8 dispute these elements in its opposition to Plaintiff’s motion for summary judgment, it did 9 so in its own motion for summary judgment. (See Doc. No. 44-1 at 16-19.) As noted 10 above, Plaintiff dropped his FDCPA claim in his opposition to Monterey’s motion, (see 11 Doc. No. 49 at 16 n.3), and the RFDCPA borrows from the FDCPA. Accordingly, and 12 because the issue of whether Monterey violated the FDCPA is more an ultimate issue than 13 an “element” of Plaintiff’s RFDCPA claim, the court defers any decision as to these 14 remaining “elements” of Plaintiff’s RFDCPA claim except as discussed above. 15 Accordingly, Plaintiff’s motion for summary judgment as to these remaining elements of 16 his RFDCPA claim is DENIED. 17 2. Actual Damages 18 As noted above, Monterey argues Plaintiff’s claim for actual damages in the form of 19 emotional distress under RFDCPA fails because he is unable to establish the elements of 20 IIED.9 (Doc. No. 44-1 at 20.) In support of this argument, Monterey cites Costa v. Nat’l 21 Action Fin. Servs., 634 F. Supp. 2d 1069, 1078 (E.D. Cal. 2007), in which the court found 22 that plaintiffs are required to establish the elements of IIED in order to sustain a claim for [26] 9 Plaintiff does not dispute that actual damages are a required element of his RFDCPA 27 claim, and Plaintiff does not move for summary judgment on the actual damages issue raised by Monterey. (See Doc. No. 56-1 at 7.) [28] 1 emotional distress damages under RFDCPA. As recognized in Costa, however, the Ninth 2 Circuit has not decided the issue and district courts are split. See id. As Plaintiff argues, 3 and Monterey does not dispute, the majority of district courts have found that plaintiffs are 4 not required to show the elements of IIED, including extreme and outrageous conduct. See, 5 e.g., Alonso v. Blackstone Fin. Grp. LLC, 962 F. Supp. 2d 1188, 1199 (E.D. Cal. 2013). 6 Instead, Monterey again argues Plaintiff’s testimony regarding his emotional damages 7 conflicts with his wife’s testimony, and that Plaintiff’s word is insufficient to support 8 emotional damages. (Doc. No. 50 at 7.) As discussed above, however, Plaintiff’s 9 testimony is at least somewhat corroborated by his wife’s testimony, and credibility issues 10 are more appropriately resolved at trial. 11 Monterey also cites Alford v. JP Morgan Chase Bank, N.A., Case No. 16-cv-0472312 HSG, 2017 WL 6611652 , at *5 (N.D. Cal. Dec. 27, 2017), in which the court found 13 plaintiff’s claims of lost sleep and fear of foreclosure in support of his RFDCPA claims 14 were insufficient to survive summary judgment. Here, however, Plaintiff provides 15 different and more detailed testimony regarding his emotional distress, including that he 16 was concerned about losing his security clearance and being punished by his employer, the 17 U.S. Navy. (Doc. No. 44-1 at 22-23.) He also purportedly seeks to introduce testimony 18 from his wife regarding the manifestation of his distress in unhealthy habits. (Doc. No 49 19 at 30.) As weak as Plaintiff’s claim for emotional damages may be, the degree of Plaintiff’s 20 emotional distress is an issue of material fact that is genuinely disputed. Accordingly, 21 Monterey’s motion for summary judgment on actual damages under RFDCPA is 22 DENIED. 23 C. CCCRAA 24 Under the CCCRAA, “[a] person shall not furnish information on a specific 25 transaction or experience to any consumer credit reporting agency if the person knows or [27] 10 Monterey concedes that emotional damages under the FCRA and CCCRAA do not [28] 1 should know the information is incomplete or inaccurate.” CAL. CIV. CODE § 1785.25(a). 2 Monterey argues Plaintiff’s unsupported claims of fraud he made to Monterey do not 3 unilaterally establish that Monterey knew or should have known the information was 4 inaccurate. (Doc. No. 63 at 19-20.) Monterey also argues the police report provided by 5 Plaintiff did not include the results of an investigation, and was insufficient to overcome 6 conflicting information, including that: (1) the underlying agreement included Plaintiff’s 7 name; (2) multiple payments were made on the debt; (3) Plaintiff’s social security number 8 was utilized to open the account; and (4) Plaintiff refused to substantiate his claims with 9 proof of residency. (Id. at 20.) In opposition, Plaintiff argues the application of his name 10 and social security number is precisely the inaccuracy he reported to Monterey, and cannot 11 serve to support accuracy. (Doc. No. 66 at 12.) Plaintiff also repeats his arguments that 12 Monterey should have initially looked into whether Plaintiff was associated with the bank 13 account that made some payments on the debt, and should have initially utilized skip 14 tracing to confirm he never lived in Texas. (Id.) 15 As discussed above, both parties rely on different material facts, some of which are 16 disputed, that could lead a reasonable trier of fact to conclude Monterey knew or should 17 have known the information was inaccurate. Monterey also does not specifically dispute 18 in its motion it should have known the debt was not Plaintiff’s, only that it did not actually 19 know.11 Accordingly, the parties’ cross motions for summary judgment as to whether 20 Monterey knew or should have known under the CCCRAA the information it reported was 21 inaccurate are DENIED. However, Plaintiff also moves for summary judgment on other 22 elements of Plaintiff’s CCCRAA claim, including that: (1) Monterey is a “person” under 23 the CCCRAA; (2) Monterey reported the information to a credit reporting agency; and 24 (3) the information reported was inaccurate. (Doc. No. 56-1 at 12-14.) Monterey does not [26] 27 11 In its reply, Monterey states there is no reason it should have known the debt was not Plaintiff’s, but provides no evidence supporting this claim. Instead, Monterey focuses [28] 1 oppose Plaintiff’s motion on these grounds. Accordingly, and based on the authorities 2 cited in Plaintiff’s papers, Plaintiff’s motion for summary judgment as to these other 3 elements of his CCCRAA claim is GRANTED. 4 D. CITA 5 Under CITA, a “victim of identity theft” may bring an action for damages, civil 6 penalties, and injunctive relief against a “claimant.” CAL. CIV. CODE § 1798.93(a)-(c). A 7 “claimant” is defined as “a person who has or purports to have a claim for money or an 8 interest in property in connection with a transaction procured through identity theft.” Id. 9 § 1798.92(a). Monterey argues it is not a “claimant” under CITA because when the suit 10 was filed it no longer had an interest in the debt. (Doc. No. 44-1 at 23.) 11 In Satey v. JPMorgan Chase & Co., 521 F.3d 1087, 1093 (9th Cir. 2008), the Ninth 12 Circuit held that a “claimant” does not “include a person who had an interest in a disputed 13 debt at some point in the past, but who no longer retains the interest at the time suit is 14 filed.” Additionally, in Soria v. U.S. Bank N.A., Case No. CV 17-00603 CJC (KESx), 2019 15 WL 8167925 , at *9 (C.D. Cal. Apr. 25, 2019), the district court granted summary judgment 16 for the defendant bank because the bank “closed” the disputed loans, and it was undisputed 17 the bank did not assert a claim against the plaintiff related to the loans. In Martirosian v. 18 JP Morgan Chase Bank, N.A., Case No. CV 13-2987 RGK (RZx), 2014 WL 12567792 , at 19 *3 (C.D. Cal. Apr. 11, 2014), however, the district court distinguished Satey because 20 “[t]here, the bank had sold all its rights in the debt to a debt collector, leaving the bank with 21 no ‘present interest’ in the debt.” The court stated, “[f]ailing to pursue a debt is not 22 equivalent to selling a debt to a third party.” Id. 23 Here, Monterey does not argue the debt has been paid or transferred to a third party, 24 and Monterey does not otherwise explicitly state it is legally prohibited from reinitiating 25 debt collection efforts against Plaintiff. Also, Monterey has not, as Plaintiff insists, 26 “accepted” or “honored” his claim that the account was fraudulent. Instead, Monterey 27 states it “closed the [a]ccount merely as a business decision.” (Doc. No. 49-27 ¶ 38.) In 28 its papers, however, Monterey states that after closing the account, it (1) “no longer claimed 1 any interest in the account,” (Doc. No. 44-1 at 33); (2) sent Plaintiff a letter stating, “[y]our 2 account with Monterey Collections has been closed, and you have no further obligation to 3 Monterey Collections and/or Emporium,” (Doc. No. 50 at 10); and (3) “[i]n doing so, it 4 permanently divested itself of its interest in the [a]ccount” and “terminated collection 5 activity in perpetuity,” (Doc. No. 63 at 30). Based on this apparent waiver of its interest in 6 collecting the debt from Plaintiff, it is not clear how Monterey could honestly and 7 legitimately reinitiate debt collection efforts against Plaintiff in the future. Although 8 Monterey has not “accepted” or “honored” Plaintiff’s fraud claim, based on the above, 9 Monterey did not, as a matter of law, possess an interest in reinitiating debt collection 10 efforts against Plaintiff when the lawsuit was filed. Accordingly, Monterey’s motion for 11 summary judgment on Plaintiff’s CITA claim is GRANTED. For the same reason, 12 Plaintiff’s motion for summary judgment as to his CITA claim is DENIED. 13 IV. CONCLUSION 14 For the forgoing reasons, the parties’ motions for summary judgment are 15 GRANTED IN PART and DENIED IN PART. The parties’ cross motions on the 16 reasonableness of Monterey’s investigation under the FCRA are DENIED. Plaintiff’s 17 motion on the remaining prima facia elements of Plaintiff’s claim under the FCRA, 15 18 U.S.C. § 1681s-2(b), is GRANTED. Plaintiff’s motion as to Monterey’s willfulness under 19 the FCRA is DENIED. Monterey’s motion as to its willfulness under the FCRA is 20 GRANTED. Monterey’s motion as to Plaintiff’s emotional damages under the FCRA and 21 CCCRAA is DENIED. 22 The parties’ cross motions on whether the debt at issue is a “consumer debt” under 23 the RFDCPA are DENIED. Plaintiff’s motion as to the other elements of his RFDCPA 24 claim is DENIED. Monterey’s motion as to Plaintiff’s claim for actual damages under the 25 RFDCPA claim is DENIED. 26 The parties’ cross motions on whether Monterey knew or should have known under 27 CCCRAA that the information it reported was inaccurate are DENIED. Plaintiff’s motion 28 as to the other elements of his CCCRAA claim is GRANTED. Monterey’s motion as to ] || Plaintiff's CITA claim is GRANTED. Plaintiff's motion as to his CITA claim is 2 || DENIED. 3 Finally, as noted above, Plaintiff initially brought a claim under the FDCPA, but 4 voluntarily agreed to dismiss this claim. (See Doc. No. 49 at 16 n.3.) Accordingly, 5 || Plaintiff's FDCPA claim is DISMISSED. 6 IT IS SO ORDERED. 7 || DATED: January 27, 2021 Hb A 4 hi. oly ! J T. ILLER ited States District Judge