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Capicchioni v. Americredit Financial Services

November 7, 2006


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court


Presently before the Court is a motion for judgment on the pleadings by AmeriCredit Financial Services and AmeriCredit Corporation, the parent company of AmeriCredit Financial Services (collectively "defendants"), in the above titled case. The defendants present materials outside the pleadings that the Court does not exclude, thus converting the defendants' motion for judgment on the pleadings to a motion for summary judgment. For the following reasons, the court GRANTS summary judgment for the defendants.


A. Factual Background

This is a class action lawsuit brought by Paul Cappicchioni ("plaintiff"), a California resident, against the defendants for one count of improper telephone call monitoring in violation of California Penal Code §637.2 (West 2006). The plaintiff's claim for improper monitoring arises out of a series of telephone calls between the plaintiff and the defendants' employees.*fn1 During September and October of 2005, the plaintiff, who is not and never was a customer of the defendants, received a number of phone calls on his cell phone from the defendants' account representatives in regard to an automobile finance account of "Constantine Tiana." (Compl. ¶ 8.) The plaintiff informed defendants' employees that he was unfamiliar with Mr. Tiana and any related automobile finance account. (Id.) The defendants' account representatives insisted the plaintiff was familiar with Mr. Tiana and the account. Consequently, the defendants' representatives continued to contact the plaintiff over the phone. (Id.)

The conversation that spawned this cause of action occurred on or around October 20, 2005. (Id. at ¶ 11.) The plaintiff received a phone call from one of defendants' male employees who again inquired about Mr. Tiana. (Id.) The plaintiff denied any knowledge of Mr. Tiana and the account, at which time the employee allegedly became verbally hostile and accused the plaintiff of deception. (Id.) In the middle of this conversation, without any introduction or notification, another male employee began speaking over the first employee and began arguing with the plaintiff regarding the Tiana account. (Id.) The plaintiff alleges the second employee was listening in on the conversation between the plaintiff and the first male employee but the plaintiff was unaware of such eavesdropping. (Id. at ¶11.) The defendants' employees did not inform the plaintiff at any time during the conversation that the conversation may be monitored by an individual outside the conversation. (Id. at ¶ 12.)

B. Procedural Background

The plaintiff filed his original class action complaint on January 4, 2006, (Doc. No. 1), and alleged two causes of action under California's privacy statutory scheme, Cal. Penal Code § 630 et seq. (Original Complaint ¶¶ 6-7.) Upon a declaration of one of defendants' vice presidents disavowing any recording of phone calls by the defendants, the plaintiff voluntarily dropped the first cause of action for improper recording and filed a first amended complaint on April 3, 2006. (Doc. No. 6.) The first amended complaint retained the second cause of action, which is based on the improper monitoring of phone calls without the consent of both parties. (Compl. at ¶ 24.)

On September 15, 2006, the defendants filed a motion for judgment on the pleadings. (Doc. No. 25.) The plaintiff filed his opposition to the defendants' motion on October 2, 2006, (Doc. No. 26), and the defendants filed their reply to the opposition on October 6, 2006. (Doc. No. 27).


A. Legal Standard

A motion for judgment on the pleadings is prescribed by Federal Rule of Civil Procedure 12(c). (Doc. No. 25.) The rule states:

After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Fed. R. Civ. Pro. 12(c).

A Rule 12(c) motion is properly granted "when, taking all the allegations in the pleadings as true, the moving party is entitled to judgment as a matter of law." Nelson v. City of Irvine, 143 F.3d 1196, 1200 (9th Cir. 1998). The court assesses both the complaint and matters for which judicial notice is proper and grants judgment on the pleading when it appears "beyond doubt that the [non-moving party] cannot prove any facts that would support his claim for relief."*fn2 Morgan v. County of Yolo, 436 F. Supp. 2d 1152, 1155 (E.D. Cal. 2005)(quoting R.J. Corman Derailment Services, LLC v. Int'l Union of Operating ...

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