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Linda Moriarity v. Janalie Henriques

April 19, 2013

LINDA MORIARITY,
PLAINTIFF,
v.
JANALIE HENRIQUES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. 35)

Defendants Janalie Henriques and Hunt & Henriques Law Firm ("Defendants") seek summary judgment, or in the alternative summary adjudication, in this action for violations of the Fair Debt Collection Practices Act and the California Fair Debt Collections Practices Act. (Doc. 35). On April 3, 2013, Plaintiff Linda Moriarity ("Moriarity" or "Plaintiff") filed her opposition to the motion (Docs. 38-40), to which Defendants filed a reply on April 10, 2013. (Doc. 42). The Court heard oral arguments from the parties on April 17, 2013. For the following reasons, Defendants' motion for summary judgment is GRANTED IN PART.

I. PROCEDURAL HISTORY

Plaintiff initiated this action by filing a complaint on July 21, 2011. (Doc. 1). Because Plaintiff requested to proceed in forma pauperis, the Court screened the complaint pursuant to 28 U.S.C § 1915A(b) on August 15, 2011. (Doc. 5). Plaintiff was directed to either file an amended complaint or notify the Court of her willingness to proceed on claims found to be cognizable. Id. On September 16, 2011, Plaintiff filed her First Amended Complaint. (Doc. 7). Therefore, the Court screened the 2 amended pleading, and found Plaintiff stated cognizable claims for the violation of the Fair Debt Collection Practices Act against Defendants, including a claim for a violation of 15 U.S.C. § 1692f 4 against Janalie Henriques, a violation of 15 U.S.C. § 1692g(b) against Hunt & Henriques Law Firm, 5 and violations of 15 U.S.C. § 1692e(2), (8) by Janalie Henriques and Hunt & Henriques Law Firm. 6

(Doc. 8 at 8). In addition, the Court determined Plaintiff stated a cognizable claim for a violation of 7 the Rosenthal Fair Debt Collection Practices Act against Hunt & Henriques Law Firm. Id. at 8-9. 8

Plaintiff chose to proceed only on these claims. (Doc. 10). 9

II. STANDARDS FOR SUMMARY JUDGMENT

The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsuhita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is appropriate when 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). Accordingly, summary judgment should be entered "after adequate time for discovery and upon motion, 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In addition, Rule 56 allows a court to grant summary adjudication, or partial summary judgment, when there is no genuine issue of material fact as to a particular claim or portion of that claim. Fed. R. Civ. P. 56(a); see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) ("Rule 56 authorizes a summary adjudication that will often fall short of a final determination, even of a single claim . . .") (internal quotation marks and citation omitted). The standards that apply on a motion for summary judgment and a motion for summary adjudication are the same. See Fed. R. Civ. P. 56 (a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998).

A party seeking summary judgment bears the "initial responsibility" of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. An issue of fact is genuine only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 2 1987). A moving party demonstrates summary judgment is appropriate by "informing the district court 3 of the basis of its motion, and identifying those portions of 'the pleadings, depositions, answers to 4 interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrates 5 the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323 (quoting Fed.R.Civ.P. 56(c)). 6

If the moving party meets its initial burden, the burden then shifts to the opposing party to 7 present specific facts that show there is a genuine issue of a material fact. Fed R. Civ. P. 56(e); 8 Matsuhita, 475 U.S. at 586. An opposing party "must do more than simply show that there is some 9 metaphysical doubt as to the material facts." Id. at 587. The party is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that a factual dispute exits. Id. at 586, n.11; Fed. R. Civ. P. 56(c). Further, the opposing party is not required to 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." T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). However, "failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322.

Even if a motion for summary adjudication is unopposed, a court cannot grant summary adjudication solely because no opposition has been filed. Cristobal v. Siegel, 26 F.3d 1488, 1494-95 & n.4 (9th Cir. 1994). The Court must apply standards consistent with Rule 56 to determine whether the moving party demonstrated there is no genuine issue of material fact and judgment is appropriate as a matter of law. Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). In resolving a motion for summary judgment, the Court examines the evidence provided by the parties, including pleadings depositions, answer to interrogatories, and admissions on file. See Fed. R. Civ. P. 56(c).

III. REQUESTS FOR JUDICIAL NOTICE

In support of the motion for summary judgment, Defendant filed a request for judicial. (Doc. 35-2). Defendant seeks judicial notice of documents from the action FIA Card Services, N.A. v. Linda D. Moriarity, Kern County Superior Court case number M-1502-CL- 18384. Specifically, Defendants seek judicial notice of (1) a certified copy of the complaint filed on July 20, 2010; (2) a file-endorsed copy of the Proof of Service of the Summons, filed on August 12, 2010; (3) a copy of the judgment 2 entered by Kern County Superior Court in favor of FIA Card Services on December 6, 2010; (4) the 3 motion to set aside judgment filed by Plaintiff on November 30, 2012, as well as the opposition and 4 reply related to the motion; and (5) a copy of the order denying the motion to set aside judgment 5 issued on January 17, 2013. 6

The Court may take notice of facts that are capable of accurate and ready determination by 7 resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United 8 States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). Court records are sources whose accuracy 9 cannot reasonably be questioned. Mullis v. United States Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal.1978), aff'd, 645 F.2d 699 (9th Cir. 1981); see also Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989). In addition, Plaintiff does not deny the authenticity of the motion to set aside default, the opposition, or her reply. Accordingly, Defendants' request for judicial notice is GRANTED.

IV. UNDISPUTED MATERIAL FACTS*fn1

FIA Card Services, N.A. retained the law firm of Hunt & Henriques to collect a credit card debt for an account number ending 1078, and under the name of Linda D. Moriarity (Doc. 35-1, ¶ 1). On May 20, 2010, Hunt & Henriques sent Moriarity a letter, "advising her that FIA ha[d] retained the firm to make a demand for payment in full on . . . the Account and informing her right to dispute the debt or any portion of it." Id., ¶ 3. On May 28, 2010, Moriarity mailed a response to Hunt & Henriques via Certified Mail #7009282000021180025, "demanding verification/validation of the alleged debt and disputing it." (Doc. 39, ¶ 2).

On July 20, 2010, FIA Card Services, represented by Defendants, initiated an action in Kern County Superior Court by filing a complaint against Plaintiff in Case No. M-1502-CL-18384. (Doc. 35-1, ΒΆ 6). FIA Card Services filed a proof of service on August 12, 2010, which indicated Moriarity 2 had been served personally on August 5, 2010, with several documents, including the summons and 3 complaint. (Doc. 35-2 at 10). On December 6, 2010, the state court entered default judgment against 4 Moriarity, finding (a) she was properly served with a copy of the summons and complaint and (b) she 5 failed to answer the complaint or appear ...


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