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Diaz v. Kubler Corp.

United States District Court, S.D. California

November 6, 2013

TAMARA DIAZ, Plaintiff,

Page 1147

For Tamara Diaz, an individual, Plaintiff: Andre L. Verdun, LEAD ATTORNEY, Crowley Law Group, San Diego, CA; Eric A. LaGuardia, LEAD ATTORNEY, LaGuardia Law, San Diego, CA; Michael L Crowley, LEAD ATTORNEY, Law Office of Michael L Crowley, San Diego, CA.

For Alternative Recovery Management, an assumed name for the Kubler Corporation, Defendant: Mark Gerald Spencer, LEAD ATTORNEY, Law Offices of Mark G Spencer, San Diego, CA.


Hon. Michael M. Anello, United States District Judge.

Page 1148


Currently before the Court is Plaintiff Tamara Diaz's motion for summary judgment or, in the alternative, partial summary judgment on her claims under the Fair Debt Collection Practices Act (" FDCPA" ) and California's Fair Debt Collection Practices Act (" Rosenthal Act" ). [Doc. No. 51.] The Court, in its discretion, found the motion suitable for determination on the papers and without oral argument, pursuant to Civil Local Rule 7.1(d)(1). For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's motion for summary judgment.


In Spring of 2011, Plaintiff received dental services from Parkway Dental Group (" Parkway" ). As a result of these services, Plaintiff incurred a debt [2] with Parkway. To collect Plaintiff's debt, Parkway sought the services of Alternative Recovery Management (" Defendant" ), a third-party debt collector.

Defendant assigned its employee, Joshua Flores (" Flores" ), to Plaintiff's debt collection case. As part of his job, Flores makes telephone calls to consumers regarding collection of their delinquent debt. During a phone call with a consumer, Flores makes contemporaneous notes into a computer system. [3] When Flores notifies

Page 1149

the caller that he is a debt-collector, he makes the notation " MINI" or " MINI I" in the computer system, indicating that he provided the " mini-Miranda" notification required by the FDCPA. Once Flores enters information into the computer system, he cannot change the previously-entered information.

Around May 2012, Flores called Plaintiff in an attempt to collect Plaintiff's debt. A few days later, Flores called Plaintiff again. [4] Around the same time, Defendant also sent Plaintiff a letter regarding the collection of Plaintiff's debt. Defendant sought to collect the principal amount of Plaintiff's debt plus 10 percent interest.

Sometime after the second phone call, Plaintiff's daughter, Erika Diaz, an attorney, called Flores. On or around June 4, 2012, Defendant received a letter from Plaintiff's daughter. Upon receipt of this letter, Defendant stopped personally contacting or attempting to collect the debts from either Plaintiff or her daughter. [5]

On July 13, 2012, Plaintiff filed this action, [6] and Defendant was served on July 30, 2012. In the operative first amended complaint, Plaintiff alleges violations of the FDCPA, [7] the Rosenthal Act, and negligence. [Doc. No. 49.]

On or around September 25, 2012, Defendant reported Plaintiff's debt to the credit reporting agency. To date, Defendant has neither obtained a judgment against Plaintiff nor garnished her wages.

On August 26, 2013, Plaintiff filed this motion for summary judgment on her claims under the FDCPA and Rosenthal Act. [Doc. No. 51.] Defendant filed an opposition, and Plaintiff filed a reply brief. [Doc. Nos. 52, 53.]

Legal Standard

A motion for summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The purpose of summary judgment " is to isolate and dispose of factually unsupported claims or defenses." Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of informing the court of the basis for the motion, and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Id. at 323. The evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party. T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).

Page 1150

If the moving party meets its initial burden, the burden then shifts to the non-moving party to present specific facts showing that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 324. The opposing party " must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When a party fails to properly address another party's assertions of fact, a court may consider these facts as undisputed. Fed.R.Civ.P. 56(e)(2). If the motion and supporting materials, including facts considered undisputed, show the movant is entitled to summary judgment, the court may grant the motion. Fed.R.Civ.P. 56(e)(3). Summary judgment is not appropriate, however, if the non-moving party presents evidence from which a reasonable jury could resolve the disputed issue of material fact in his or her favor. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Barlow v. Ground, 943 F.2d 1132, 1136 (9th Cir. 1991).

" Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Anderson, 477 U.S. at 255. Therefore, " [t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id.; see also Demers v. Austin, 729 F.3d 1011, 1017 (9th Cir. 2013). Accordingly, " [s]ummary judgment is not appropriate if a reasonable jury viewing the summary judgment record could find by a preponderance of the evidence that the [non-moving party] is entitled to a favorable verdict." Narayan v. EGL, Inc., 616 F.3d 895, 899 (9th Cir. 2010).


A. Violations of the Fair Debt Collection Practices Act[8]

The underlying purpose of the FDCPA is to " eliminate abusive debt collection practices by debt collectors . . . and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692; see also Nelson v. Equifax ...

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