The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT/ADJUDICATION
Plaintiff Christopher Bolton borrowed money from Triad Financial to purchase a car. He defaulted on the loan and the car was repossessed in 2003. Triad Financial contracted with Defendant Pentagroup Financial Services, LLC to collect the debt. In the intervening years, Plaintiff joined the military. Defendant did not contact Plaintiff until early November 2007. Ms. Selepack, an employee of Defendant, left Plaintiff a voice mail message on his cell phone. Plaintiff called back later that same day and spoke with Ms. Selepack and her supervisor, Ms. Hedgeman. In the conversation, Ms. Hedgeman suggested that she would contact Plaintiff's commanding officer about the debt. Ms. Selepack then left a second voice mail message on Defendant's cell phone at a later date, in which she also raised to prospect of contacting Plaintiff's commanding officer.
Plaintiff filed suit against Defendant on February 12, 2008. He alleges violations of the Fair Debt Collection Practices Act ("FDCPA") and requests statutory and mental distress damages. Defendant made a settlement offer of $2002 plus reasonable attorneys' fees and costs, which Plaintiff rejected. The parties have now filed cross motions. Plaintiff seeks summary adjudication as to Defendant's liability under FDCPA, asserting that the undisputed facts show a clear violation. Defendant seeks full summary judgment on a number of rationales. First, Defendant says the court lacks subject matter jurisdiction as its settlement offer exceeded the statutory maximum Plaintiff is entitled to, rendering the case moot. Second, Defendant asserts the undisputed facts show there is no FDCPA violation. Third, Defendant seeks summary adjudication on the unavailability of emotional distress damages. Defendant also makes evidentiary objections to the materials Plaintiff has submitted. The court took the matter under submission without oral argument.
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008).
The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Juell v. Forest Pharms., Inc., 456 F.Supp.2d 1141, 1149 (E.D. Cal. 2006); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated ...by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003). If the non-moving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. See Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1103 (9th Cir. 2000).
III. Statement of Undisputed Material Facts
A. Plaintiff's Statement of Undisputed Material Facts
1. Plaintiff defaulted on a credit agreement with Triad Financial.
2. The account was placed with Defendant debt collector for collection.
3. Defendant's debt collection activities included telephone calls and voice mail messages to the Plaintiff.
4. Defendant first contacted Plaintiff by leaving a message on his personal cell phone.
5. Defendant's agent Joyce Selepack left a message stating she was from Pentagroup Fraud and Recovery Services and that Plaintiff needed to call her back immediately.
6. In a voice mail message, on or around November 3, 2007, Defendant's agent Joyce Selepack threatened to contact Plaintiff's Commanding Officer.
Disputed. Plaintiff in his deposition testified that the message included a statement that Pentagroup might have to contact his commanding officer in order to find 'a better way to contact me.'
7. This phone message was recorded and preserved by the Plaintiff.
8. Defendant does not deny the existence, validity, or authenticity of the recording.
Disputed on the grounds that the evidence does not support the purported fact. Moreover, Plaintiff has not provided the court with the recording.
9. Plaintiff is an E-4 (AM-3) in the United States Navy stationed at Naval Air Station Lemoore, California.
10. Defendant admits it employed Joy Selepack at the time of the call.
11. Defendant's phone records document the making of the call.
12. Defendant's internal documents indicate Joyce Selepack acknowledges that she left this message for Plaintiff.
13. Defendant admits the telephone message was not compliant with its own rules, restrictions, and regulations which are intended to comply with the FDCPA.
Disputed. Defendant's rules and regulations are intended to do more than comply with the FDCPA. The statement is misleading because defendant's own internal regulations are more strict than FDCPA.
14. Defendant disciplined Joy Selepack for this call to Plaintiff.
Undisputed, but defendant notes that his fact should not come into evidence as it is a subsequent remedial measure.
15. Plaintiff contacted the Defendant in response to this message attempting to stop Defendant from contacting his Commanding Officer and spoke with Ms. Selepack and her supervisor, Mary Hedgeman.
16. The supervisor, Ms. Hedgeman, then stated her intention to send a package to Plaintiff's Commanding Officer.
17. Defendant's threats to contact Plaintiff's Commanding Officer resulted in Plaintiff experiencing fear and anxiety.
Disputed. The instate fact is not supported by the evidence. In fact, the term "threat" is an unreasonable inference drawn from the evidence, and is argumentative.
18. Defendant's threat to contact a Commanding Officer is referred to as a "Captains Mast" in the Navy.
Disputed on the grounds that this is contrary to the evidence. There is no evidence presented by Plaintiff that the defendant threatened Plaintiff with a Captain's Mast. In fact, the deposition testimony provided by Plaintiff establishes the opposite. Defendant's agents never used the term Captain's Mast. Moreover, Plaintiff did not state that the defendant referenced article 15 of the UCMJ. There is no evidence that such a threat was ever made. Plaintiff's argument is speculation and conjecture without any foundation.
19. A Captain's Mast can quickly change the direction of an individual service member's ...