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Membrila v. Receivables Performance Management

August 4, 2010

ERIK MEMBRILA, PLAINTIFF,
v.
RECEIVABLES PERFORMANCE MANAGEMENT, LLC, DEFENDANT.



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

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Doc. No. 24]

Presently before the Court is Defendant Receivables Performance Management, LLC's motion for summary judgment. Along with his opposition, Plaintiff Erik Membrila filed a declaration in support of his request for a continuance under Federal Rule of Civil Procedure 56(f) to allow him an opportunity to conduct discovery.

This motion is suitable for disposition without oral argument pursuant to Local Civil Rule 7.1(d)(1). For the reasons stated herein, the Court DENIES Defendant's motion for summary judgment.

BACKGROUND

This matter involves Defendant's attempts to collect a debt allegedly owed by Plaintiff. On December 14, 2009, Plaintiff filed a Complaint, alleging: (1) violation of the Fair Debt Collection Practices Act ("FDCPA"),15 U.S.C. § 1692 et seq; (2) violation of the California Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), Cal. Civ. Code §§ 1788-1788.32; and (3) illegal telephone recording in violation of California Penal Code §§ 631, 632 and 637.2. Plaintiff later filed an amended complaint.

On February 16, 2010, Defendant filed a motion to dismiss Plaintiff's third cause of action for illegal telephone recording. The Court granted the motion to the extent the cause of action was based on California Penal Code § 631, but found Plaintiff stated a cause of action under Section 632.

On June 3, 2010, Defendant filed a motion for summary judgment as to each of Plaintiff's three causes of action.

LEGAL STANDARD

Summary judgment is proper where the pleadings and materials demonstrate "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

The moving party bears "the initial responsibility of informing the district court of the basis for its motion." Celotex, 477 U.S. at 323. To satisfy this burden, the movant must demonstrate that no genuine issue of material fact exists for trial. Id. at 322. Where the moving party does not have the ultimate burden of persuasion at trial, it may carry its initial burden of production in one of two ways: "The moving party may produce evidence negating an essential element of the nonmoving party's case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000).

If the moving party carries its initial burden, the non-movant must then show that there are genuine factual issues which can only be resolved by the trier of fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000). The nonmoving party may not rely on the pleadings alone, but must present specific facts creating a genuine issue of material fact through affidavits, depositions, or answers to interrogatories. Fed R. Civ. P. 56(e); Celotex, 477 U.S. at 324. The court must review the record as a whole and draw all reasonable inferences in favor of the nonmoving party. Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). However, unsupported conjecture or conclusory statements are insufficient to defeat summary judgment. Id.; Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008).

DISCUSSION

I. Debt Validation Letter

Plaintiff alleges Defendant violated the FDCPA, 15 U.S.C. § 1692f, and RFDPCA, California Civil Code § 1788.17, by failing to provide a debt validation letter within five days of Defendant's initial communication with Plaintiff regarding the debt. (FAC ¶¶ 23-27.) According to Plaintiff, the initial ...


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