Davis v. Law

968 F. Supp. 2d 1072, 2013 WL 4863849, 2013 U.S. Dist. LEXIS 130765
CourtDistrict Court, E.D. California
DecidedSeptember 12, 2013
DocketNo. CIV. S-12-3107 LKK/AC
StatusPublished
Cited by7 cases

This text of 968 F. Supp. 2d 1072 (Davis v. Law) is published on Counsel Stack Legal Research, covering District Court, E.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Law, 968 F. Supp. 2d 1072, 2013 WL 4863849, 2013 U.S. Dist. LEXIS 130765 (E.D. Cal. 2013).

Opinion

ORDER

LAWRENCE K. KARLTON, Senior District Judge.

Plaintiff Michael Davis sues defendant Hollins Law, A Professional Corporation, alleging violations of the federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p (“FDCPA”) and California’s Rosenthal Fair Debt Collection Practices Act, Cal. Civ.Code §§ 1788-1788.33 (“Rosenthal Act”). The gravamen of plaintiffs complaint is that defendant placed collection calls to his home phone, and left a voicemail message which failed to disclose that the communication was from a debt collector. The parties have cross-moved for summary judgment.

The parties’ motions came on for hearing on September 9, 2013. Having considered the matter, the court will deny both motions for the reasons set forth below.

I. BACKGROUND

A. Factual background

The undisputed facts are as follows:

• The debt alleged in the complaint herein was incurred on a business credit card. (Plaintiffs Response to Defendant’s Statement of Undisputed Facts, ECF No. 47.)
• The credit card in question was an American Express TrueEarnings Business Card (hereinafter, the “American Express card”), which was obtained by plaintiff at Costco. (Defendant’s Response to Plaintiffs Statement of Undisputed Facts, ECF No. 51.)
• The American Express card was used to purchase personal items, such as “standard household items bought through Costco,” gas purchased at Costco, “Pampers and milk,” “a bar tab,” and “school books.” (Id.)
• Defendant’s representative, one “Gregory,” placed collection calls to plaintiff to collect a debt owed on the American Express card. (Id.)
• On or around August 29, 2012, defendant’s representative, one “Gregory Daulton,” placed a telephone call to plaintiff and left plaintiff a voicemail message. (Id.)

Defendant advances a number of evidentiary objections to the remaining undisputed facts advanced by plaintiff in support of his motion. These objections are addressed as necessary below.

B. Procedural background

Plaintiffs complaint pleads violations of the FDCPA (specifically, 15 U.S.C. §§ 1692e, 1692e(10), and 1692e(ll)) and the Rosenthal Act (Cal. Civ.Code § 1788.17). The latter provision specifies that certain FDCPA violations (such as the ones at issue in this case) also constitute Rosenthal Act violations. Each statute allows for a maximum of $1000.00 in statutory damages; plaintiff therefore seeks $2000.00 in damages, and his attorney fees and costs, which are also provided for by statute.

Defendant moves for summary judgment on the grounds that, as plaintiff owed money on a business credit card, the subject obligation is not a “debt” within the meaning of the FDCPA, a consumer protection statute. Therefore, defendant maintains that it cannot be held liable under the FDCPA or the Rosenthal Act (as the latter claim is premised on an FDCPA violation). (ECF No. 35.)

Plaintiff cross-moves for summary judgment, contending that there exists no gen[1075]*1075uine dispute as to defendant’s liability under the FDCPA and the Rosenthal Act.

II. STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (it is the movant’s burden “to demonstrate that there is ‘no genuine issue as to any material fact’ and that the movant is ‘entitled to judgment as a matter of law1 ”); Walls v. Cent Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir.2011) (per curiam) (same).

Consequently, “[s]ummary judgment must be denied” if the court “determines that a ‘genuine dispute as to [a] material fact’ precludes immediate entry of judgment as a matter of law.” Ortiz v. Jordan, 562 U.S. -, 131 S.Ct. 884, 891, 178 L.Ed.2d 703 (2011), quoting Fed.R.Civ.P. 56(a); Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir.2011) (en banc) (same), cert. denied, — U.S. —, 132 S.Ct. 1566, 182 L.Ed.2d 168 (2012).

Under summary judgment practice, the moving party bears the initial responsibility of informing the district court of the basis for its motion, and “citing to particular parts of the materials in the record,” Fed.R.Civ.P. 56(c)(1)(A), that show “that a fact cannot be ... disputed.” Fed. R.Civ.P. 56(c)(1); Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Securities Litigation), 627 F.3d 376, 387 (9th Cir.2010) (“The moving party initially bears the burden of proving the absence of a genuine issue of material fact”)(citing Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

A wrinkle arises when the non-moving party will bear the burden of proof at trial. In that case, “the moving party need only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387.

If the moving party meets its' initial responsibility, the burden then shifts to the non-moving party to establish the existence of a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Oracle Corp., 627 F.3d at 387 (where the moving party meets its burden, “the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial”).

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Bluebook (online)
968 F. Supp. 2d 1072, 2013 WL 4863849, 2013 U.S. Dist. LEXIS 130765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-law-caed-2013.