This matter comes before the court on the motion for summary judgment filed by defendant, The Brachfield Law Group ("defendant"), attacking the claims of plaintiff Shirley Bohannon-Hingston brought under the Fair Debt Collection Practices Act ("FDCPA"), the Rosenthal Fair Debt Collection Practices Act ("RFDCPA") and for the torts of invasion of privacy and intentional infliction of emotional distress. (ECF 29.) Plaintiff opposes the motion. (ECF 30.) For the reasons set forth below, defendant's motion for summary judgment is hereby DENIED.
I. PROCEDURAL HISTORY AND UNDISPUTED FACTS*fn1
Plaintiff filed her complaint on March 3, 2011, alleging that
the FDCPA and RFDCPA. (ECF 1. ) Plaintiff's complaint also contains
corollary state law
claims for "violation of right to privacy" and intentional infliction
of emotional distress. (Id.) On August 12, 2011, defendant filed a
motion for summary judgment. (ECF 20.) Defendant did not file a
separate statement of undisputed facts, as required by Local Rule
260(a). (Id.) The court denied defendant's motion for summary judgment
and granted leave to re-file the motion in compliance with the local
rules. (See Order, filed Oct. 18, 2011, ECF No. 28.)*fn2
Defendant filed the present motion for summary judgment on
October 10, 2011. (ECF 29.) Plaintiff filed her opposition on November
14, 2011. (ECF 30. ) Defendant filed its reply on November 28, 2011.
Plaintiff became indebted to Household Bank in 2006. (Def.'s Statement of Undisputed Fact, filed Oct. 19, 2011, ECF No. 30-3 ¶ 1.) When Plaintiff did not comply with the terms of the loan, defendant began efforts to collect the debt. (Id. ¶ 2.)
Plaintiff testified through her declaration that, beginning in January 2011, defendant's employee began calling her at her place of employment, the Sport Chalet in Roseville, California. (Decl. of Shirley Bohannon-Hingston ("Bohannon Decl."), filed March 22, 2011, ECF 1-2, ¶¶ 3-4.) Defendant admits that it called plaintiff at least two times a day both at home and at work in an effort to collect the debt. (Def.'s Statement of Undisputed Fact ¶ 3.) During the first conversation plaintiff had with defendant's employee, she informed the employee she was not allowed to take calls at work and immediately terminated the conversation; the employee called back directly and asked to speak with her manager. (Bohannon Decl. ¶ 5.) According to plaintiff, during the entire month of February 2011, and into early March, the employee continued to call her at work. (Id. ¶ 6.) On one occasion, the employee asked a manager at plaintiff's workplace for her work schedule; on another, the employee left a message with plaintiff's manager stating that he was an attorney. (Id. ¶¶ 7-8.)
Plaintiff describes the employee's conduct as "rude," persistent and "aggressive." (Id. ¶ 9.) Plaintiff, in her declaration, states that because of the sheer volume of calls she received at work, she had to explain to her manager that she was in the midst of financial difficulties and the calls were from a collection agency. (Id. ¶ 10.) According to plaintiff, she revealed this to her boss out of fear that she would lose her job because of the number of calls she was receiving at work. (Id.) Plaintiff also had to ask her co-workers, when she received a call, to lie and tell the caller that she was not available. (Id. ¶ 12.) Plaintiff states that defendant's collection tactic of continually calling her at work, thereby forcing her to reveal to her manager that she was in debt and to her co-workers that she could no longer take calls, caused her extreme embarrassment, stress and humiliation and burdened her marriage. (Id. ¶¶ 10-14.)
On July 19, 2011, defendant represented Midland Funding, LLC in a collection lawsuit filed against plaintiff. The state court collection case was based on an alleged contract between plaintiff and Midland Funding LLC, Household Bank's successor-in-interest, for failure to make payments on the debt as agreed. Midland Funding, LLC secured a default judgment against plaintiff in Placer County Superior Court. (Declaration of Jonathan Birdt, filed Oct. 19, 2011, ECF No. 29-3.) Defendant now contends that the state court judgment bars each of plaintiff's claims under both the Rooker-Feldman doctrine and res judicata. Moreover, defendant asserts that the allegations surrounding defendant's debt collection practices are insufficient to amount to a violation of either the FDCPA or the RFDCPA, or to constitute state torts of intrusion of privacy or intentional infliction of emotional distress. Thus, defendant maintains that the court should grant its motion for summary judgment in its entirety.
III. SUMMARY JUDGMENT STANDARD
A court will grant summary judgment "if . . . there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The "threshold inquiry" is whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).*fn3
The moving party bears the initial burden of showing the district court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, which "must establish that there is a genuine issue of material fact . . . ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). In carrying their burdens, both parties must "cit[e] to particular parts of materials in the record . . .; or show  that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 ("[the nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts"). Moreover, "the requirement is that there be no genuine issue of material fact . . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 247-48 (emphasis in original).
In deciding a motion for summary judgment, the court draws all inferences and views all evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88; Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968)).
Defendant contends the court should grant its motion for summary judgment because the underlying state court action precludes this federal action under both the Rooker-Feldman doctrine and res judicata. Defendant also maintains plaintiff has failed to satisfy her burden of producing sufficient evidence to demonstrate there is a disputed question of material fact that would preclude summary judgment on plaintiff's claims that defendant violated the FDCPA and the ...