The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter comes before the court on (1) plaintiff Travis Branco's ("plaintiff") motion for partial summary judgment relating to his claims for violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. 1692 et seq., and the California Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), Cal. Civ. Code § 1788 et seq. and (2) defendant Credit Collection Services, Inc.'s ("defendant" or "CCS") cross-motion for summary judgment, or in the alternative, partial summary judgment, as to plaintiff's claims pursuant to the FDCPA and RFDCPA. Plaintiff opposes defendant's motion, and defendant opposes plaintiff's motion. For the reasons set forth below,*fn1 plaintiff's motion is granted in part and denied in part and defendant's motion is granted in part and denied in part.
This dispute arose when plaintiff failed to pay for car insurance provided by Liberty Mutual Insurance Company. (Pl.'s Statement of Undisputed Facts ["SUF"], filed July 20, 2011, [Docket #19, Attachment 4], ¶ 13.) On or about November 17, 2009, the debt was assigned to defendant for collection. (Def.'s Statement of Undisputed Fact ["DUF"], filed July 21, 2011, [Docket #22, Attachment 1], ¶ 10.) In attempt to collect the debt, CCS began making telephone calls to 209-296-4089, the number plaintiff provided Liberty Mutual and Liberty Mutual thereafter provided defendant. (Id. ¶ 13.) This was the number for plaintiff's parents' residence. (SUF ¶ 5.) Between November 19, 2009, and March 26, 2010, defendant attempted to contact plaintiff at the above number fourteen times. (Id. ¶ 18.)
Defendant left the following message on plaintiff's parents' answering machine five times:
This is for Travis Branco. If the intended party cannot be reached at this number, please call 800-998-5000, and we will cease further attempts to this number. If you are not the intended party, please hang up at this time. This message contains private information and should not be played in a manner where it can be heard by others...(music)...This call is from CCS, Credit Collection Services. This is an attempt to collect a debt and any information obtained will be used for that purpose. For your privacy protection, please visit our secure website at www.warningnotice.com to access your personal account information. Your file number is 05036201574. Thank you.
The outgoing message on plaintiff's parents' answering machine states: "You have reached the Branco residence. Please leave a message and phone number so that Steve, Sari or Travis may return your call." (Id. ¶ 19.) Apparently, plaintiff's parents' answering machine does not have a function that permits the listener to skip the message. (SUF ¶ 8.)
At the time defendant left these message, Travis Branco did not live at his parents' residence. (DUF ¶ 21.) However, plaintiff's mother, Sari Branco, overheard the content of the messages. (SUF ¶ 7; DUF ¶ 9.) Sari Branco told plaintiff that an 800 number had been calling and that she did not know who it was until defendant left the aforementioned message. (DUF ¶ 23.) Plaintiff never returned any phone call to CCS, nor did anyone contact defendant to request it cease calling the number. (Id. ¶¶ 24-26.)
Plaintiff has moved for partial summary judgment on his claims for violation of sections 1692b(2) and 1692c(b) of the FDCPA and Section 1788.17 of the RFDCPA. (Pl.s Mot. for Partial Summ. J. ["Pl.'s Mot."], filed July 20, 2011, [Docket #20], at 6:12-13.) Defendant moves for summary judgment as to each of plaintiff's claims. (See Def.'s Mot. for Summ. J. ["Def.'s Mot.], filed July 21, 2011, [Docket #22].)
A motion for partial summary judgment is resolved under the same standard as a motion for summary judgment. See California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). 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).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. at 324. Indeed, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(e). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Id. at 251-52.
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 289. In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). 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. Anderson, 477 U.S. at 255. 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. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).
Plaintiff asserts that defendant violated the following provisions of the FDCPA: (1) § 1692b(2); (2) § 1692c(b); (3) § 1692d; (4) § 1692d(5). (Pl.'s Complaint ["compl."], filed May 15, 2010, [Docket #1], at 4:9-25.) Plaintiff alleges that defendant violated these provisions when it called plaintiff fourteen times and left voice messages that were overheard by his parents. (Pl.'s Mot. at 6:3-18.) Defendant contends that the messages it left on plaintiff's parent's answering machines contained sufficient warnings regarding the nature of the call such that it is not liable under any of the aforementioned provisions of the FDCPA or the RFDCPA. (Def.s' Mot. at 1:16-28.)
Congress enacted the FDCPA in 1977 to eliminate abusive debt collection practices, to insure that debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent state action to protect consumers against debt collection abuses.
15 U.S.C. § 1692e; see also Wade v. Regional Credit Association, 87 F.3d 1098, 1099 (9th Cir. 1996) (discussing purpose of the FDCPA). As such, the statute is liberally construed to protect the "least sophisticated debtor." Clark v. Capital Credit & Collection Services, Inc., 460 F.3d 1162, 1171 (9th Cir. 2006); see also Clomon v. Jackson, 988 F.2d 1314, 1318-19 (2d Cir. 1993). This objective standard "ensure[s] that the FDCPA protects all consumers, the gullible as well as the shrewd . . . the ignorant, the unthinking and the credulous." Clomon, 988 F.2d at 1318-19.
Plaintiff and defendant both move for summary judgment on plaintiff's claim under Section 1692b(2). Plaintiff maintains that defendant violated this section by leaving a voice mail at his parent's house stating that plaintiff owes a debt. (Pl.'s Mot. at 12:20-13:6.) Defendant contends that plaintiff's claim under this Section fails because plaintiff has failed to show it was seeking location information in connection with the calls. (Def.'s Mot. at 5:5-14.) Section 1692b(2) provides that "[a]ny debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall - (1) identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer; (2) not state that such consumer owes any debt.
15 U.S.C. § 1692b(2) (emphasis added).
In this case, plaintiff's claim fails as a matter of law because he has failed to produce any evidence demonstrating that defendant communicated with a third party "for the purpose of acquiring location information," an essential element of his statutory claim. Id. Not only does plaintiff's motion fail to establish that defendant sought location information, but the message itself also contains no indication that defendant sought location information. (SUF ¶ 14.) Since plaintiff has failed to produce any evidence establishing an essential element of his claim, his motion for summary judgment on this claim is DENIED and defendant's motion for summary judgment on this claim is GRANTED. See Celotex, 477 U.S. 323 (1986). (holding that the moving ...