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2 3 4 5 6 7 United States District Court 8 Central District of California 9 10 11 MICHELLE AMMONS, Case № 2:18-cv-06489-ODW (MAAx) 12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANT’S DIVERSIFIED ADJUSTMENT 14 MOTION FOR SUMMARY SERVICE, INC., 15 JUDGMENT [38] Defendant. 16 17 I. INTRODUCTION 18 Plaintiff Michelle Ammons (“Ammons”) sued Defendant Diversified 19 Adjustment Service, Inc. (“DAS”) for claims arising from DAS’s debt collection 20 activities. (See generally Compl., ECF No. 1.) Now before the Court is DAS’s 21 Motion for Summary Judgment or Partial Summary Judgment (“Motion”). (Mot., 22 ECF No. 38.) For the reasons that follow, the Court GRANTS IN PART and 23 DENIES IN PART Defendant’s Motion.1 24 II. BACKGROUND 25 This case concerns Ammons’s delinquent Sprint account and DAS’s attempts to 26 collect the debt. On November 9, 2017, Sprint placed Ammons’s delinquent account 27
28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 with DAS for collection. (Def.’s Separate Statement of Uncontroverted Facts 2 (“DSUF”) 21, ECF No. 38-2.) DAS first called Ammons’s cell phone ending in 3436 3 (“3436 Cell Phone”) on February 20, 2018. (See Compl. ¶ 11; Decl. of Mark E. Ellis 4 in Supp. of Mot. (“Ellis Decl.”) Ex. 3 (“3436 Call Log”) 1, ECF No. 38-3.) DAS 5 placed no calls to Ammons after May 3, 2018. (See Compl. ¶ 17; 3436 Call Log 2; 6 Opp’n to Mot. 1 (“Opp’n”), ECF No. 40.) In the seventy-three days between February 7 20 and May 3, 2018, DAS placed seventy-seven calls to Ammons’s 3436 Cell Phone, 8 sometimes calling three to five times per day. (DSUF 21; see 3436 Call Log 1–2.) 9 Ammons asserts that DAS’s calls exacerbated her existing stress. (Compl. ¶ 27; 10 DSUF 32.) 11 Every call DAS placed to the 3436 Cell Phone used the LiveVox HCI (Human 12 Call Initiator) dialing platform. (DSUF 5, 21.) The parties dispute whether LiveVox 13 HCI is an “automatic telephone dialing system” (“ATDS”) as defined by the 14 Telephone Consumer Protection Act (“TCPA”). (See DSUF 6–19; Pl.’s Statement of 15 Contested Facts (“PSCF”) 6–19, ECF No. 40-1.) 16 Of the seventy-seven calls placed to the 3436 Cell Phone, Ammons answered 17 five. (DSUF 25.) On two occasions, Ammons told DAS to stop calling and once that 18 she was experiencing financial difficulties. (PSCF 26, 28, 31; Decl. of K.C. 19 Karnowski in Supp. of Mot. (“Karnowski Decl.”) ¶¶ 13, 15, 18, ECF No. 38-4; Decl. 20 of Brian Brazier in Supp. of Opp’n (“Brazier Decl.”) Exs. F, H, J, ECF Nos. 40-8, 21 40-10, 40-12.) No DAS agent ever threatened Ammons or used abusive language. 22 (DSUF 25; Ellis Decl. Ex. 6 (“Pl.’s Resp. to Def.’s RFAs”), Reqs. 21, 30, 31.) Four 23 of the five calls lasted less than a minute and the cumulative time for all five answered 24 calls totals 217 seconds (or 3 minutes 37 seconds). (See DSUF 26–31.) Ammons 25 ended each call. (DSUF 26–31; Karnowski Decl. ¶¶ 13–18; Brazier Decl. Exs. F–J.) 26 Sprint recalled Ammons’s account from DAS on May 9, 2018. (DSUF 21.) On 27 June 7, 2018, Ammons’s counsel sent a demand letter to DAS with a request that DAS 28 stop calling Ammons. (DSUF 22–23.) 1 On July 27, 2018, Ammons filed this lawsuit against DAS, asserting four causes 2 of action for violations of (1) TCPA, 47 U.S.C. § 227 et seq.; (2) Fair Debt Collection 3 Practices Act (“FDCPA”), 15 U.S.C. §§ 1692d, 1692d(5), and 1692f; (3) Rosenthal 4 Fair Debt Collection Practices Act (“Rosenthal Act”), California Civil Code sections 5 1788.11(d) and 1788.17; and (4) Intrusion Upon Seclusion. (See Compl. ¶¶ 33–54.) 6 On May 30, 2019, the Court denied Ammons’s motion to amend the Complaint. 7 (Order Denying Mot. to Amend, ECF No. 39.) On May 24, 2019, while the motion to 8 amend was pending, DAS moved for summary judgment. (See Mot.) 9 III. LEGAL STANDARD 10 A court “shall grant summary judgment if the movant shows that there is no 11 genuine dispute as to any material fact and the movant is entitled to judgment as a 12 matter of law.” Fed. R. Civ. P. 56(a). Courts must view the facts and draw reasonable 13 inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 14 U.S. 372, 378 (2007); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 15 2000). A disputed fact is “material” where the resolution of that fact might affect the 16 outcome of the suit under the governing law, and the dispute is “genuine” where “the 17 evidence is such that a reasonable jury could return a verdict for the nonmoving 18 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Conclusory or 19 speculative testimony in affidavits is insufficient to raise genuine issues of fact and 20 defeat summary judgment. Thornhill Publ’g Co. v. GTE Corp., 594 F.2d 730, 738 21 (9th Cir. 1979). Moreover, though the Court may not weigh conflicting evidence or 22 make credibility determinations, there must be more than a mere scintilla of 23 contradictory evidence to survive summary judgment. Addisu, 198 F.3d 1134. 24 Once the moving party satisfies its burden, the nonmoving party cannot simply 25 rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a 26 material issue of fact precludes summary judgment. See Celotex Corp. v. Catrett, 477 27 U.S. 317, 322–23 (1986); Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 28 574, 586 (1986); Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 1 818 F.2d 1466, 1468 (9th Cir. 1987). A “non-moving party must show that there are 2 ‘genuine factual issues that properly can be resolved only by a finder of fact because 3 they may reasonably be resolved in favor of either party.’” Cal. Architectural Bldg. 4 Prods., 818 F.2d at 1468 (quoting Anderson, 477 U.S. at 250). “[I]f the factual 5 context makes the non-moving party’s claim implausible, that party must come 6 forward with more persuasive evidence than would otherwise be necessary to show 7 that there is a genuine issue for trial.” Id. (citing Matsushita Elec. Indus., 475 U.S. at 8 586–87). “[U]ncorroborated and self-serving” testimony will not create a genuine 9 issue of material fact. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th 10 Cir. 2002). The court should grant summary judgment against a party who fails to 11 demonstrate facts sufficient to establish an element essential to his case when that 12 party will ultimately bear the burden of proof at trial. See Celotex, 477 U.S. at 322. 13 Pursuant to the Local Rules, parties moving for summary judgment must file a 14 proposed “Statement of Uncontroverted Facts and Conclusions of Law” that should 15 set out “the material facts as to which the moving party contends there is no genuine 16 dispute.” C.D. Cal. L.R. 56-1. A party opposing the motion must file a “Statement of 17 Genuine Disputes” setting forth all material facts as to which it contends there exists a 18 genuine dispute. C.D. Cal. L.R. 56-2. “[T]he Court may assume that the material 19 facts as claimed and adequately supported by the moving party are admitted to exist 20 without controversy except to the extent that such material facts are (a) included in the 21 ‘Statement of Genuine Disputes’ and (b) controverted by declaration or other written 22 evidence filed in opposition to the motion.” C.D. Cal. L.R. 56-3. 23 IV. DISCUSSION 24 DAS moves for summary judgment on all of Ammons’s claims as well as her 25 requests for actual and punitive damages. (See Mot. 1–6.) Before considering the 26 merits of DAS’s Motion, the Court addresses the relevant evidentiary objections.2 27 2 To the extent the Court relies on evidence objected to in resolving the Motion without discussion, 28 the relevant objections are OVERRULED. See Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1118–19 (E.D. Cal. 2006). 1 A. EVIDENTIARY OBJECTIONS 2 1. Expert Report 3 DAS objects to the declaration of Ammons’s expert, Randall Snyder, as 4 untimely and lacking foundation. (See Def.’s Mem. of Objs. 1–10, ECF No. 42-2.) 5 “Federal Rule of Civil Procedure [(“Rule”)] 26(a)(2)(B) requires the parties to 6 disclose the identity of each expert witness ‘accompanied by a written report prepared 7 and signed by the witness.’” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 8 1101, 1106 (9th Cir. 2001). Rule 37(c)(1) provides an automatic sanction “forbidding 9 the use at trial [or on a motion] of any information required to be disclosed by Rule 10 26(a) that is not properly disclosed.” Id. Where exclusion would amount to outright 11 dismissal, the court must consider whether the party’s conduct amounts to 12 “willfulness, fault, or bad faith.” Id. Unless the party’s failure to disclose is 13 “substantially justified or harmless,” the information is excluded. Id. 14 The Scheduling and Case Management Order (“Scheduling Order”) requires 15 disclosure of expert reports eight weeks before the expert discovery cutoff. (See 16 Scheduling Order 3, ECF No. 16.) Here, the cutoff was June 10, 2019, making the 17 deadline to disclose experts and expert reports April 15, 2019. (Scheduling Order 24.) 18 Yet Ammons disclosed Randall Snyder and his expert report on June 10, 2019, the 19 expert discovery cutoff date. (See Decl. and Prelim. Expert Report of Randall Snyder 20 in Opp’n to Mot. (“Snyder Report”), ECF No. 40-14; Suppl. Decl. Mark E. Ellis 21 (“Ellis Suppl. Decl.”) Ex. 15 (“Pl.’s Expert Disclosure Statement”), ECF No. 42-3.) 22 As such, the Snyder Report is untimely. 23 The Snyder Report provides Snyder’s opinions regarding whether the LiveVox 24 HCI system is an ATDS under the TCPA. (See Synder Report ¶ 2.) The parties raised 25 this issue in their October 2018 Joint Report and March 2019 stipulations extending 26 the fact-discovery cutoff. (See Joint Report 3, ECF No. 15; Stipulation, ECF No. 28; 27 Second Stipulation, ECF No. 30.) Thus, Ammons was aware that she may need a 28 witness like Snyder as early as October 2018, yet did not disclose Snyder or his 1 Report until June 10, 2019, in opposition to DAS’s Motion. See Pickern v. Pier 1 2 Imports (U.S.), Inc., 457 F.3d 963, 969 n.5 (9th Cir. 2006) (affirming exclusion of 3 untimely expert report where party “reasonably could have anticipated the necessity of 4 the witness at the time of the deadline[]”). Nor is Ammons’s late expert disclosure 5 substantially justified or harmless. Ammons offers no justification for her untimely 6 disclosure. (See generally Opp’n.) Further, by delaying to disclose Snyder and the 7 Snyder Report until June 10, 2019, the last day of expert discovery and in opposition 8 to DAS’s Motion, Ammons denied DAS the opportunity to cross-examine Snyder for 9 DAS’s Motion and Reply, or to retain a rebuttal witness. 10 Accordingly, DAS’s objection to the Snyder Report is SUSTAINED and the 11 Snyder Report is EXCLUDED. See Fed. R. Civ. P. 37(c)(1).3 12 2. Allegations Raised for the First Time in Opposition to DAS’s Motion 13 DAS also objects to Ammons’s inclusion of calls not pleaded in the Complaint. 14 (See Def.’s Mem. of Objs. 10–11.) 15 “[S]ummary judgment is not a procedural second chance to flesh out inadequate 16 pleadings.” Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 17 2006). “If a plaintiff fails to assert any factual allegations as to a particular theory of 18 liability in a complaint, the ‘provision of affidavits and declarations supporting [that 19 theory] at the summary judgment stage is ineffectual.’” DK Holdings v. Miva, Inc., 20 No. 16-CV-0580 W (AGS), 2019 WL 1470881, at *3 (S.D. Cal. Apr. 3, 2019) 21 (quoting La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 22 F.3d 1083, 1088 (9th Cir. 2010)). This is because Rule 8(a)(2) “requires that the 23 allegations in the complaint give the defendant fair notice of what the plaintiff’s claim 24 is and the grounds upon which it rests.” Pickern, 457 F.3d at 968 (internal quotation 25 marks omitted). 26 27
28 3 While exclusion of the Snyder Report may make it more onerous for Ammons to prove her TCPA claim, it does not amount to an outright dismissal. See infra section IV.B. 1 Ammons alleges in the Complaint that DAS called her 3436 Cell Phone 2 approximately seventy times between February 2018 and May 2018. (Compl. ¶ 17.) 3 She did not allege that DAS attempted to contact her in any other way, despite being 4 aware of other calls. (See Compl. ¶¶ 11–32; Ellis Suppl. Decl. Ex. 9 (“Ammons 5 Dep.”), ECF No. 42-3.) Ammons now argues in opposition to DAS’s Motion that 6 DAS placed a total of 614 calls to various numbers between November 2017 and May 7 2018, including her 3436 Cell Phone, work number, and family members. (See 8 Opp’n 1–2; PSCF 21.) However, as Ammons chose not to include these factual 9 allegations in her Complaint, DAS was not on notice that Ammons intended to pursue 10 her claims based on calls other than to the 3436 Cell Phone. See Pickern, 457 F.3d at 11 968–69 (holding that the complaint did not satisfy Rule 8’s notice pleading 12 requirements because it “gave the [defendants] no notice of the specific factual 13 allegations presented for the first time in [the plaintiff’s] opposition to summary 14 judgment”); see also La Asociacion, 624 F.3d at 1088–89 (finding that party may not 15 effectively amend complaint by raising a new supporting theory in response to a 16 motion for summary judgment). 17 Courts should construe issues raised in “opposition to summary judgment that 18 are outside the scope of the complaint” as a request to amend the pleadings. 19 Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014). Shortly 20 before the deadline to file dispositive motions, Ammons moved to amend her 21 complaint to add allegations that DAS called her work number and emailed her. (See 22 Mot. to Amend 3–4, ECF No. 34.) The Court denied the motion because Ammons did 23 not seek leave to amend until more than three months beyond the deadline; did not 24 show good cause to modify the scheduling order or for her delay; and submitted 25 affidavits which demonstrated either carelessness or bad faith. (See Order Den. Mot. 26 to Amend 3–4, ECF No. 39.) Indeed, the Court denied leave to amend to add the very 27 allegations Ammons now raises in opposition. Ammons may not circumvent the 28 1 Court’s Order in this way. Accordingly, DAS’s objection is SUSTAINED and 2 Ammons may not rely on calls not pleaded to support her claims. 3 B. TCPA, 47 U.S.C. § 227 et seq. 4 DAS moves for summary judgment on Ammons’s TCPA claim on the basis 5 that LiveVox HCI is not an automatic telephone dialing system (“ATDS”) such that 6 its use does not violate the TCPA. (Mot. 12–16.) 7 Under the TCPA, it is unlawful “to make any call . . . using any [ATDS] . . . to 8 any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. 9 § 227(b)(1)(A)(iii). ATDS is defined by the statute as “equipment which has the 10 capacity—(A) to store or produce telephone numbers to be called, using a random or 11 sequential number generator; and (B) to dial such numbers.” Id. § 227(a)(1). The 12 definition of an ATDS has been in flux in recent years. See Marks v. Crunch San 13 Diego, LLC, 904 F.3d 1041, 1045–49 (9th Cir. 2018). Recently, however, the United 14 States Court of Appeals for the District of Columbia Circuit found the FCC’s 15 guidance contradictory and unreasonably expansive, and “vacated the FCC’s 16 interpretation of what sort of device qualifie[s] as an ATDS.” Id. at 1049 (discussing 17 ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018)). Accordingly, in Marks, the Ninth 18 Circuit “beg[an] anew to consider the definition of ATDS.” Id. at 1050. The Ninth 19 Circuit concluded that an ATDS is “equipment which has the capacity—(1) to store 20 numbers to be called or (2) to produce numbers to be called, using a random or 21 sequential number generator—and to dial such numbers automatically (even if the 22 system must be turned on or triggered by a person).” Id. at 1053. 23 The parties agree that all calls DAS placed to Ammons’s 3436 Cell Phone used 24 LiveVox HCI. (DSUF 5.) DAS contends that LiveVox HCI is not an ATDS under 25 the TCPA because each call must be initiated by manual human intervention. 26 (Mot. 13.) DAS submits evidence supporting that, while LiveVox has several cloud- 27 based dialing platforms, the LiveVox HCI system was purposefully designed to 28 require a human component to initiate each call through that platform, and to be 1 incapable of automated calling. (Decl. of Laurence Siegel in Supp. of Mot. (“Siegel 2 Decl.”) ¶ 2, ECF No. 38-5.) The human component, a “clicker agent,” must 3 physically click a dialog box to launch each individual call. (Siegel Decl. ¶¶ 8, 19.) 4 The clicker agent verifies that a “closer agent” is available to receive the call before 5 launching it; LiveVox HCI does not use any predictive algorithms in launching the 6 calls. (Siegel Decl. ¶¶ 9–11.) DAS’s evidence shows that LiveVox HCI has no 7 capacity to store numbers to be called, to produce numbers to be called using a 8 random or sequential number generator, or to dial numbers automatically. As such, 9 LiveVox HCI does not qualify as an ATDS. 10 Ammons contends that LiveVox HCI is an ATDS because LiveVox can store a 11 list of numbers to be called. (Opp’n 6.) She relies on the deposition of DAS’s 12 corporate representative, who agreed it would be fair to say a “campaign,” “sort of 13 like a list,” “gets sent up to LiveVox.” (Opp’n 6.) However, at the same time, 14 Ammons notes, “LiveVox then dials those numbers on its own when given the go- 15 ahead to do so.” (Opp’n 6 (emphasis added)). Thus, Ammons acknowledges that, 16 even if LiveVox stores numbers, LiveVox HCI still requires human intervention to 17 launch calls to them. Ammons also contends that, because the LiveVox HCI system 18 was “[t]ransparently designed to insert an unnecessary person into the process” for the 19 purpose of avoiding TCPA liability, the clicker agent’s role should not disqualify 20 LiveVox HCI as an ATDS. (Opp’n 8.) Yet to be an ATDS, a system must be capable 21 of automatic dialing, which LiveVox HCI is not. (See Siegel Decl. ¶¶ 12–13.) As one 22 court to consider the system noted, “[a]lthough LiveVox HCI’s level of human 23 intervention may seem minimal, every court to examine this issue has held that the 24 clicker agent’s role prevents the system from qualifying as an ATDS under the 25 statute.” Collins v. Nat’l Student Loan Program, 360 F. Supp. 3d 268, 273 (D.N.J. 26 2018) (collecting cases); see also Marshall v. CBE Grp., No. 2:16-CV-02406-GMN 27 (NJK), 2018 WL 1567852, at *7 (D. Nev. Mar. 30, 2018) (“the overwhelming weight 28 of authority applying this element hold that ‘point-and-click’ dialing systems, paired 1 with a cloud-based pass-through services [sic], do not constitute an ATDS as a matter 2 of law in light of the clicker agent’s human intervention.”) (collecting cases). 3 True, the Ninth Circuit in Marks envisioned that some level of human 4 interaction with a system may still qualify as an ATDS. 904 F.3d at 1053 (holding 5 that an ATDS must have the capacity “to dial such numbers automatically (even if the 6 system must be turned on or triggered by a person)”). However, LiveVox HCI goes 7 far beyond merely triggering a system to run automatically. It requires human 8 interaction to initiate each call. The Court agrees with other courts to consider the 9 LiveVox HCI system and, applying Marks, finds that the clicker agent’s role 10 precludes LiveVox HCI from qualifying as an ATDS. Accordingly, Ammons’s 11 TCPA claim fails as a matter of law. 12 C. FDCPA & ROSENTHAL ACT 13 DAS also moves for summary judgment on Ammons’s FDCPA and Rosenthal 14 Act claims, asserting that no evidence exists of DAS’s intent to harass or annoy. 15 (Mot. 17–24.) 16 1. FDCPA, 15 U.S.C. §§ 1692d and 1692d(5) 17 Section 1692d of the FDCPA prohibits debt collectors from engaging in “any 18 conduct the natural consequence of which is to harass, oppress, or abuse any person in 19 connection with the collection of a debt.” 15 U.S.C. § 1692d. Section 1692d(5) 20 specifically prohibits “[c]ausing a telephone to ring or engaging any person in 21 telephone conversation repeatedly or continuously with intent to annoy, abuse, or 22 harass any person at the called number.” Id. § 1692d(5). Claims under these sections 23 should be viewed from the perspective of the “least sophisticated debtor.” Arteaga v. 24 Asset Acceptance, LLC, 733 F. Supp. 2d 1218, 1226 (E.D. Cal. 2010). Ammons 25 contends that the volume and pattern of DAS’s calls demonstrates an intent to harass. 26 (Opp’n 11–15.) 27 Although a plaintiff may ordinarily pursue claims under both § 1692d and 28 § 1692d(5), “[c]oncurrent claims for violations of § 1692d and § 1692d(5) must be 1 treated as a single claim under § 1692d(5) where, as here, the underlying conduct fits 2 ‘squarely within § 1692d(5).’” Hollis v. LVNV Funding, No. EDCV 18-1866-JGB 3 (KKx), 2019 WL 1091336, at *3 (C.D. Cal. Jan. 2, 2019) (quoting Stirling v. Genpact 4 Servs., LLC, No. 2:11-CV-06369-JHN-MANx, 2012 WL 952310, at *2 (C.D. Cal. 5 Mar. 19, 2012)).4 Thus, the Court considers Ammons’s claims under § 1692d(5). 6 “Congress did not intend the FDCPA to completely bar any debt collection 7 calls.” Hami v. Portfolio Recovery Assocs., No. 2:14-CV-06580-JFW-RZx, 2015 WL 8 897571, at *2 (C.D. Cal. Feb. 23, 2015) (citation omitted). Thus, to prevail, a plaintiff 9 must show the defendant’s intent to annoy, abuse, or harass. 15 U.S.C. § 1692d(5). 10 Such intent may be inferred from the volume, pattern, and frequency of the calls. See 11 e.g., Joseph v. J.J. Mac Intyre Cos., 238 F. Supp. 2d 1158, 1168 (N.D. Cal. 2002). 12 Intent may also be found with a pattern of calling where a collector calls back 13 immediately, continues to call after being asked to stop, or calls numerous times in the 14 same day. Stirling, 2012 WL 952310, at *4. 15 However, courts differ widely “as to the amount or pattern of calls sufficient to 16 raise a triable issue of fact regarding the intent to annoy, harass, or oppress.” Arteaga, 17 733 F. Supp. 2d at 1227 (granting summary judgment where calls were made daily but 18 there was no evidence of defendant calling back immediately, calling multiple times 19 in a day, or calling after requests to cease); see also Fields v. Credit Mgmt. Sys., 20 No. EDCV 14-1853 JGB (SPx), 2015 WL 11367930, at *7 (C.D. Cal. Nov. 23, 2015) 21 (denying summary judgment where defendant called two to four times per day, 22 including calling back immediately and calling after plaintiff requested that calls 23 cease); Jones v. Rash Curtis & Assocs., No. C 10-00225 JSW, 2011 WL 2050195, at 24 *3 (N.D. Cal. Jan. 3 2011) (granting summary judgment where nothing indicated an 25
26 4 Allowing a plaintiff to pursue a § 1692d claim and a § 1692d(5) claim on the same facts would “effectively eviscerate the requisite intent contemplated in situations governed by § 1692d(5) . . . 27 [and] would also render that entire subsection superfluous.” Neu v. Genpact Servs., LLC, No. 11- 28 CV-2246 W (KSC), 2013 WL 1773822, at *3 (S.D. Cal. Apr. 25, 2013) (alterations in original) (quoting Stirling, 2012 WL 952310, at *3). 1 intent to harass beyond the calls themselves, 179 calls in one year); Krapf v. 2 Nationwide Credit Inc., No. SACV 09-00711 JVS (MLGx), 2010 WL 2025323, at 3 *3–4 (C.D. Cal. May 21, 2010) (collecting cases and denying summary judgment 4 based on four to eight calls per day for two months, often within minutes). 5 The undisputed facts show that DAS called Ammons’s 3436 Cell Phone 6 seventy-seven times in seventy-three days, sometimes up to five times per day, 7 including calling after she asked DAS to stop. This alone could indicate DAS’s intent 8 to harass. However, DAS never threatened Ammons or used abusive language, and 9 on the days that DAS reached her, no further calls were placed on the same day. Also, 10 out of seventy-seven attempts, DAS reached Ammons only five times. These facts 11 could evidence DAS’s intent to reach Ammons rather than an intent to harass or 12 annoy. See Probasco v. IQ Data Int’l, No. CIV S-10-2716 KJM GGH, 2011 WL 13 1807429, at *3 (E.D. Cal. May 10, 2011); see also Jiminez v. Accounts Receivable 14 Mgmt., No. CV 09-9070-GW (AJWx), 2010 WL 5829206, at *4 (C.D. Cal. Nov. 15, 15 2010) (granting summary judgment where a reasonable juror could find only that, 16 based on the absence of an “unacceptable pattern of calls,” the calls were placed with 17 intent to reach debtor rather than intent to harass). Taking all inferences in the light 18 most favorable to Ammons, a reasonable juror could find that the volume and pattern 19 of calls here indicate an intent to harass, abuse, or annoy. Accordingly, the Court 20 DENIES summary judgment on Ammons’s § 1692d(5) claim. 21 2. FDCPA, 15 U.S.C. § 1692f 22 DAS also argues it is entitled to summary judgment on Ammons’s § 1692f 23 claim because it is based on the same facts as her § 1692d(5) claim. (Mot. 23.) 24 Section 1692f “prohibits a debt collector from using ‘unfair or unconscionable means 25 to collect or attempt to collect any debt.’” Donohue v. Quick Collect, Inc., 592 F.3d 26 1027, 1030 (9th Cir. 2010) (quoting 15 U.S.C. § 1692f). The statute lists non- 27 exclusive examples of unfair or unconscionable conduct. However, the same alleged 28 volume and pattern of calls Ammons alleges violates § 1692d(5) may not also form 1 the sole basis for her separate claim under § 1692f.5 See Fields, 2015 WL 11367930, 2 at *8–9 (C.D. Cal. Nov. 23, 2015). Further, “there is no evidence of any conduct by 3 [DAS] that is remotely similar to the examples provided in § 1692f.” Id. at *9 4 (quoting Johnson v. Portfolio Recovery Assocs., No. CV 12-4261-PSG, 2013 WL 5 1015641, at *11 (C.D. Cal. June 24, 2013)). As such, Ammons’s § 1692f claim fails 6 as a matter of law and the Court GRANTS DAS summary judgment as to that claim. 7 3. Rosenthal Act, Cal. Civ. Code §§ 1788.11(d), 1788.176 8 DAS moves for summary judgment as to Ammons’s Rosenthal Act claim on 9 the same bases as above, specifically a lack of wrongful intent. (Mot. 24.) The 10 Rosenthal Act “mimics or incorporates by reference the FDCPA’s requirements . . . 11 and makes available the FDCPA’s remedies for violations.” Riggs v. Prober & 12 Raphael, 681 F.3d 1097, 1100 (9th Cir. 2012). Accordingly, whether conduct violates 13 the Rosenthal Act turns on whether it violates the FDCPA and the above analysis of 14 Ammons’s § 1692d(5) claim also applies to her Rosenthal Act claim. For the reasons 15 discussed above, the Court finds a genuine issue of material fact exists as to whether 16 the volume and pattern of calls to Ammons’s 3436 Cell Phone indicate an intent to 17 annoy. Thus, the Court DENIES summary judgment on Ammons’s Rosenthal Act 18 claim. 19 D. INTRUSION UPON SECLUSION 20 Under California common law, intrusion upon seclusion is actionable “if the 21 intrusion would be highly offensive to a reasonable person.” Deteresa v. Am. Broad. 22 Cos., 121 F.3d 460, 465 (9th Cir. 1997). Courts have found that repeated debt 23 collection calls can constitute invasion of privacy where the caller’s conduct is highly 24 offensive, conversations are upsetting, or calls are made with such persistence and 25
26 5 Ammons seeks to support her § 1692f claim with calls to her work number but, as discussed above, 27 those calls are not before the Court. See supra section IV.A. 6 California Civil Code section 1788.11(d) provides “[n]o debt collector shall collect or attempt to 28 collect a consumer debt by means of . . . [c]ausing a telephone to ring repeatedly or continuously to annoy the person called.” Section 1788.17 requires debt collectors to comply with the FDCPA. 1 frequency that they amount to hounding. Kleiman v. Equable Ascent, No. CV 2 12-9729 CAS (AJWx), 2013 WL 49754, at *3–4 (C.D. Cal. Jan. 3, 2013) (citing 3 Restatement (Second) of Torts § 652B cmt. d). 4 The evidence presented by both parties confirms that DAS’s conduct during the 5 five answered calls was objectively professional. No DAS agent made threats or used 6 abusive language. They identified themselves and informed Ammons that they were 7 calling about her debt. Each of the five conversations lasted one minute or less before 8 Ammons ended the call, and she presents no evidence that the conversations were 9 upsetting beyond the mere fact of being debt collection calls. Although DAS 10 occasionally called three to five times per day, the calls were not so persistent or 11 frequent that a reasonable juror could find they amount to hounding. See Rector v. 12 Wells Fargo Dealer Servs., No. CV 13-5288 DSF (MANx), 2014 WL 12603205, 13 at *2 (C.D. Cal. May 12, 2014) (granting summary judgment where plaintiff presented 14 no evidence of offensive conduct beyond the calls themselves); c.f. Fausto v. Credigy 15 Servs. Corp., 598 F. Supp. 2d 1049, 1056 (N.D. Cal. 2009) (denying summary 16 judgment where defendant was inappropriate on calls, did not identify itself as a debt 17 collector, and would call back immediately after having spoken to the plaintiff). 18 As the evidence demonstrates no material dispute of fact regarding the content 19 of the conversations, and the calls alone are insufficient to support Ammons’s claim, 20 DAS’s Motion is GRANTED as to this claim. 21 E. ACTUAL AND PUNITIVE DAMAGES 22 DAS moves for summary judgment as to Ammons’s requests for actual and 23 punitive damages. (Mot. 23, 25; Compl. ¶¶ 57, 61, 63.) 24 Ammons seeks actual damages under the FDCPA and Rosenthal Act, but does 25 not oppose DAS’s Motion on the issue.7 (See generally Opp’n.) The only actual 26
7 The Court is not obligated to “scour the record in search of a genuine issue of triable fact,” Keenan 27 v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996), and the parties bear the burden to lay out their support 28 clearly, Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir.2001). Nevertheless, the Court reviewed the record for plausible support for Ammons’s actual damages and finds only 1 harm raised in this case is the “exacerbat[ion]” of Ammons pre-existing stress. (See 2 Compl. ¶ 27.) She does not dispute that her distress began before DAS began calling 3 her and continued after the calls ceased. (DSUF 32; PSCF 32.) She does not dispute 4 that she has not sought medical attention, received diagnosis, or been prescribed 5 medication. (DSUF 32; PSCF 32.) As Ammons offers no opposition or evidence that 6 would raise a triable issue, the Court GRANTS DAS’s Motion as to actual damages. 7 Ammons seeks punitive damages under California Civil Code section 3294. A 8 plaintiff may recover punitive damages where she proves by “clear and convincing 9 evidence that the defendant has been guilty of oppression, fraud, or malice.” Cal. Civ. 10 Code § 3294. Here, Ammons offers no evidence DAS acted “despicabl[y]” with 11 “willful and conscious disregard of the rights or safety of others,” id. § 3294(c)(1), 12 subjected her or any person “to cruel and unjust hardship,” id. § 3294(c)(2), or 13 intentionally misrepresented or concealed any material facts with the intention of 14 depriving anyone of property or causing injury, id. § 3294(c)(3). That punitive 15 damages may be available where supported in other invasion of privacy cases does not 16 make them available here, where Ammons has offered no evidence giving rise. The 17 Court GRANTS DAS’s Motion as to punitive damages. 18 19 20 21 22 23 24 25 26 Ammons’s deposition testimony and declaration. (See Ammons Dep. 41–45; Decl. of Michelle 27 Ammons ¶¶ 13–14, ECF No. 40-15.) However, such self-serving testimony does not create a 28 genuine issue of material fact, especially where, as here, Ammons does not dispute that her distress began before and continued after DAS’s calls, and offers no corroboration. 1 V. CONCLUSION 2 For the forgoing reasons, the Court GRANTS IN PART and DENIES IN 3 | PART DAS’s Motion for Summary Judgment. (ECF No. 38.) Specifically, the Court GRANTS DAS’s Motion as to Ammons’s claims under the TCPA, § 1692f of the 5 | FDCPA, and Intrusion upon Seclusion. The Court also GRANTS DAS’s Motion as 6 | to Ammons’s claims for actual and punitive damages. The Court DENIES DAS’s Motion as to Ammons’s FDCPA claim under § 1692d(5) and her Rosenthal Act 8} claim. 9 10 IT IS SO ORDERED. 11 12 October 9, 2019 1S * supa 14 Gill Ylult 15 OTIS D. WRIGHT, Il UNITED STATES DISTRICT JUDGE
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