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Bruce Albert Johnson v. Cfs Ii

April 28, 2013


The opinion of the court was delivered by: Lucy H. Koh United States District Judge


Plaintiff Bruce Albert Johnson ("Johnson") brings this action against Defendant CFS II, Inc., a debt collection company ("Defendant" or "CFS"), for violations of the federal Fair Debt 18 Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and California's Rosenthal Fair 19 Debt Collection Practices Act ("RFDCPA"), California Civil Code § 1788 et seq. 20

Presently before the Court is Johnson's Motion for Summary Judgment or, In the Alternative, for Summary Adjudication. ECF No. 41. On April 18, 2013, the Court held a hearing 22 on this matter. Having considered the parties' submissions, oral arguments, and the relevant law, 23 the Court GRANTS Johnson's Motion for Summary Judgment. 24


A. Factual Background

Johnson is a 77-year old man alleged to have incurred a consumer credit card debt owed to US Bank in the amount of $5,719.13. See Decl. Bruce Johnson Supp. Mot. for Summ. J. ("Johnson 28 Decl.") ¶ 4, ECF No. 41-2; Def.'s Resp. to Req. Produc., ECF No. 41-6, at Exh. A. This credit was then assigned to a creditor, Tommy Enterprise, who subsequently hired CFS to collect this debt. 2 Dep. Bryan R. Lohmeyer ("Lohmeyer Dep."), ECF No. 41-8, at 44:1-24. 3

CFS is a corporation engaged in the business of collecting consumer debts for clients. See Def.'s Resp. to Req. Admis., ECF No. 41-7, at 2-3. CFS regularly initiates debt collections by 5 sending out a collection notice, or an "original hello letter," to alleged debtors, informing them that 6 they have thirty days to object to the debt. Lohmeyer Dep. at 17:9-14. If the alleged debtors do 7 not respond within this time period, CFS commences collections. Id. 8

On or about September 30, 2010, CFS mailed an "original hello letter," intended for Johnson, to 2032 Stonewood Lane, San Jose, California. See Def.'s Resp. to Req. Produc., ECF 10 No. 41-6, at Exh. A ("Sept. 30, 2010 letter"); Lohmeyer Dep. at Exh. 3 (same). The September 30, 2010 letter explains that CFS has been authorized to collect $5,719.13 from Johnson based on the debt Johnson allegedly owed to US Bank originally. See Sept. 30, 2010 Letter. The material 13 portion of the letter states as follows: 14

Unless you notify this office within thirty (30) days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume the debt is valid. If you notify this office in writing within thirty (30) days from receiving this notice, this office will: obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request this office in writing within thirty (30) days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.

Id. Johnson declares that he never received this September 30, 2010 letter. Johnson Decl. ¶ 5. 20

According to Johnson, CFS sent this letter to the wrong address, see Mot. at 3, as Johnson never 21 resided at 2032 Lane in San Jose, California, and never received mail at this address, see Pl.'s 22 Resp. to Def.'s Special Interrog. Nos. 11 & 13. 23

After sending the September 30, 2010 letter, CFS sought unsuccessfully to contact Johnson 24 by telephone. CFS's collection log shows that, on January 17, 2011, an employee of CFS placed a 25 call to a "wrong number" and learned from the person who answered the phone that it was the 26 second call the party received for the "wrong Bruce A. Johnson." See Collection Log at 6. In 27 addition, on February 23, 2011, the collection log shows that CFS learned that the Stonewood 28 address, to which CFS sent the September 30, 2010 letter, was "sold to the Morelands" at least four years prior "and the renter in the house is not a Mr. Johnson." Collection Log at 6. Further, on or 2 about March 3, 2011, the collection log indicates that CFS obtained a different address for Johnson 3 in Morgan Hill, California, and learned from Johnson's wife she "knew nothing about this card" 4 and that "they never got any billing" on it. Id. at 5-6. 5

On or about March 4, 2011, CFS "re-sent" the first collection letter to Johnson, though this 6 time to 275 Burnett Avenue SPC 115, in Morgan Hill, California. Lohmeyer Dep., Exh. 6 ("March 7 4, 2011 letter"); Def.'s Resp. to Req. Produc., Exh. A (same); see Lohmeyer Dep. at 41:19-42:5. 8

The March 4, 2011 letter differs from the September 30, 2010 letter in certain respects and, in lieu 9 of the above-cited passage, states as follows: 10

original creditor and other information. If you need more information, just let us know. Also, if you believe this is not your debt, that the amount is wrong, or if there is something else that may make the debt invalid, please tell us you dispute the debt. If you tell us of your dispute within 30 days of your receipt of this letter, we will avoid contacting you until we send written verification of the debt or a copy of any applicable judgment. If you do not tell us you dispute the debt then we will assume the debt is valid.

To help you identify this debt we have provided above the name and address of the Id. On March 8, 2011, Johnson sent a "validation request letter" from the Morgan Hill address to 16 CFS, requesting that a copy of the debt verification be sent to him. See Opp'n at 15. 17

B. Procedural History

On March 5, 2012, Johnson filed a Complaint against CFS for alleged violations of the 19 federal Fair Debt Collection Practices Act and California's Rosenthal Fair Debt Collection 20 Practices Act. See Complaint ("Compl.") ¶ 1, ECF No. 1. CFS then filed a Motion to Dismiss, 21 which it later withdrew. See ECF Nos. 5, 12. On May 3, 2012, CFS filed its Answer to Johnson's 22 Complaint, ECF No. 13, which CFS then amended on June 7, 2012. See ECF Nos. 13, 18. 23 Johnson filed the instant Motion for Summary Judgment, or In the Alternative, Summary Adjudication on January 31, 2013. See ECF No. 41-1 ("Mot."). CFS filed an opposition to the 25 motion on February 14, 2013, see ECF No. 43 ("Opp'n"), to which Johnson filed a reply on 26 February 18, 2013, see ECF No. 45 ("Reply"). 27


Summary judgment is appropriate if, viewing the evidence and drawing all reasonable 2 inferences in the light most favorable to the nonmoving party, there are no genuine disputed issues 3 of material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); 4 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). At the summary judgment stage, the Court 5

"does not assess credibility or weigh the evidence, but simply determines whether there is a 6 genuine factual issue for trial." House v. Bell, 547 U.S. 518, 559-60 (2006). A fact is "material" if 7 it "might affect the outcome of the suit under the governing law," Anderson v. Liberty Lobby, Inc., 8 477 U.S. 242, 248 (1986), and a dispute as to a material fact is "genuine" if there is sufficient 9 evidence for a reasonable trier of fact to decide in favor of the nonmoving party, id. "If the 10 evidence is merely colorable, or is not significantly probative, summary judgment may be granted."

Id. at 249-50.

The moving party has the burden of demonstrating the absence of a genuine issue of fact for 13 trial. Celotex Corp., 477 U.S. at 323. To meet its burden, "the moving party must either produce 14 evidence negating an essential element of the nonmoving party's claim or defense or show that the 15 nonmoving party does not have enough evidence of an essential element to carry its ultimate 16 burden of persuasion at trial." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 17 F.3d 1099, 1102 (9th Cir. 2000) (citation omitted). Once the moving party has satisfied its initial 18 burden of production, the burden shifts to the nonmoving party to show that that there is a genuine 19 issue of material fact. Id. at 1103. 20

Pursuant to Rule 56(g) of the Federal Rules of Civil Procedure, "[i]f the court does not 21 grant all the relief requested by the [summary judgment] motion, it may enter an order stating any 22 material fact-including an item of damages or other relief-that is not genuinely in dispute and 23 treating the fact as established in the case." Fed. R. Civ. P. 56(g). This subdivision "becomes 24 relevant only after the court has applied the summary-judgment standard . . . to each claim, 25 defense, or part of a claim or defense, identified by the motion." Advisory Comm. Notes 26 (addressing Fed. R. Civ. P. 56(g)). "Rule 56(g) allows a court to grant partial summary judgment, 27 thereby reducing the number of facts at issue in a trial." Nat'l Union Fire Ins. Co. of Pittsburgh, 28 PA v. Ready Pac Foods, Inc., 782 F.Supp.2d 1047, 1051-1052 (C.D. Cal. 2011) (citing Fed. R. Civ. 2 P. 56(g)). 3


Johnson moves for summary judgment alleging that CFS's March 4, 2011 collection letter 5 violates the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692e, 1692e(10), 1692g(a)(3), 6 1692g(a)(4), and 1692g(a)(5), by failing to include statutorily required validation notices and 7 disclosures. Mot. at 5. In addition, Johnson moves for summary judgment on the basis that CFS's 8 March 4, 2011 letter violates the Rosenthal Fair Debt Collection Practices Act, California Civil 9 Code § 1788.17. 10

In the alternative, Johnson moves for summary adjudication pursuant to Rule 56(g) of the 11 Federal Rules of Civil Procedure. Specifically, Johnson seeks summary adjudication of the following issues: (1) that Johnson is a "consumer" as that term is defined by 15 U.S.C. 13 § 1692a(3), and a "debtor" as that term is defined by California Civil Code § 1788.2(h); (2) that 14 CFS is a "debt collector" as that term is defined by 15 U.S.C. § 1692a(6), and California Civil 15 Code § 1788.2(c); and (3) that the debt being collected by CFS was a "debt" as that term is defined 16 by 15 U.S.C. § 1692a(5), and a "consumer debt" as that term is defined by California Civil Code 17 § 1788.2(f). See Notice of Mot. and Mot. for Summ. J., ECF No. 41. 18

CFS opposes Johnson's Motion for Summary Judgment. In its opposition brief, CFS argues 19 that there are two triable issues of fact presented by this case: (1) whether Johnson received CFS's 20 "original hello letter" dated September 30, 2010; and (2) regardless of receipt by Johnson, whether 21 the September 30, 2010 letter constitutes the initial collection letter in this case, thereby fulfilling 22 CFS's statutory requirements. Opp'n at 2. CFS does not dispute any of the issues for which 23 Johnson seeks summary ...

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