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Lee v. The Pep Boys Manny Moe & Jack of California

United States District Court, Ninth Circuit

January 14, 2014

ANDREW LEE, Plaintiff,



This Fair Debt Collection Practices Act ("FDCPA") and California Unfair Competition Law ("UCL") lawsuit arises out of an employee's alleged misuse of his employee discount and for changing the oil on his car while at work. Plaintiff Andrew Lee initiated this action in Alameda County Superior Court against Defendants The Pep Boys Manny Moe and Jack of California ("Pep Boys"), Palmer, Reifler & Associates ("Palmer"), and Patricia Hastings ("Hastings") and Defendants subsequently removed the action to federal court. Now pending before the Court is Defendants' motion for judgment on the pleadings as to Plaintiff's non-FDCPA UCL allegations. (Dkt. No. 69.) Having carefully reviewed the parties' submissions, the Court concludes that oral argument is unnecessary, VACATES the January 16, 2014 hearing, and GRANTS the motion in part and DENIES the motion in part.


The Court summarized the factual allegations of the First Amended Complaint ("FAC") (Dkt. No. 5-4) in detail in its December 7, 2012 Order (Dkt. No. 23) which it incorporates by reference. In short, at some point during his employment with Pep Boys, Plaintiff was accused of performing an oil change on his own car while at work that he did not pay for and using his employee discount to complete customer transactions on behalf of family members and friends. Following his termination, Plaintiff received two letters purporting to be from Pep Boys' attorney. The first letter, dated May 23, 2012, demands $350 within 20 days, and the second letter, dated June 12, 2012, demands $625 within 10 days. ( See Dkt. No. 13.) The June 12 letter, which is substantially similar to the May 23 letter, states in relevant part:

This Law Firm represents Pep Boys concerning its civil claim against you in connection with an incident in their store 607 on 4/17/2012. You have failed to make full payment after written demand to do so.
Pursuant to the Cal. Penal CodeĀ§ 490.5 "Theft of retail merchandise; civil liability", Pep Boys may consider moving forward with a statutory civil damages claim against you.
At this time, our client is requesting that you settle this matter by making payment to us in the amount of $625.00 within ten (10) days of the date of this letter.... Upon receipt of your full payment, you will receive a written release of the statutory civil "penalty" claim.
Should payment fail to be made on time or payment arrangements not be set up within the above stated time period, we may review the matter for the possibility of recommending that our client take further civil action and depending on the state law, may choose to make a higher settlement request on behalf of our client. Pep Boys may in the future consider filing a lawsuit, in which case it will likely seek any available attorney's fees, court costs and other legal expenses throughout such litigation. Any defending party to such a lawsuit would likely be served by a process server with a summons requiring the party or the party's attorney to respond and/or appear in court to defend the action. If successful in any such litigation, we estimate that Pep Boys would be seeking a final judgment of damages, attorney's fees and court costs up to the maximum amounts allowed by law which could therefore, [sic] exceed the amount demanded above.
We strongly encourage you to make payment or set up payment arrangements within the time period requested above to avoid further civil requests.

(Dkt. No. 13 at 6.)

In its previous Order partially dismissing the FAC, the Court denied Defendants' motion to dismiss the FDCPA claim, concluding that the alleged transactions were not nonconsensual as a matter of law. In addition to dismissing the UCL claim with leave to amend for lack of standing, the Court also ruled that particular allegations in the FAC regarding Pep Boys' initial receipt of $20 in restitution were insufficient to state a claim under both the UCL's "unfair" and "fraudulent" prongs. Plaintiff subsequently filed a Second Amended Complaint ("SAC").


"After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). The standard of review is "functionally identical" to the Rule 12(b)(6) standard. Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011). Accepting all allegations of the non-moving party as true, judgment "is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law." Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). "Dismissal [of claims] can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). In deciding ...

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