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Koch v. The 704 Group, LLC

United States District Court, S.D. California

December 18, 2014

MARK R. KOCH, Plaintiff,
THE 704 GROUP, LLC, Defendant.


CYNTHIA BASHANT, District Judge.

This action arises from Plaintiff Mark R. Koch's allegations that Defendant 704 Group, LLC violated the Federal Fair Debt Collections Practices Act ("FDCPA") and California Rosenthal Act when it filed a complaint to collect a debt past the statute of limitations.

Now pending before the Court is Defendant's motion for summary judgment. (ECF No. 14.) For the reasons set forth below, the Court GRANTS Defendant's motion for summary judgment.


Defendant is in the business of purchasing portfolios of defaulted debts and then attempting to collect those debts. (Brkich Decl. ¶ 3.) It purchased a portfolio originating with Chase Bank that included Plaintiff's consumer debt in the amount of $13, 559.37. ( Id. ) In an effort to collect the debt, Defendant filed a complaint against Plaintiff on January 16, 2013 in the San Diego Superior Court ("state-court complaint"). (Brkich Decl. ¶ 7.) The statute of limitations to collect the debt expired January 14, 2013. ( Id. at ¶ 8; Koch Decl. ¶ 6.)

Defendant typically hires a filing vendor to file its documents with the court and serve the complaint and summons on the opposing party. (Brkich Decl. ¶ 8.) On January 9, 2013, Defendant sent a filing vendor the complaint against Plaintiff to be filed with the superior court. ( Id. ) However, it failed to inform the filing vendor that the complaint must be filed by a certain date because the statute of limitations deadline was about to expire. ( Id. ) After the filing vendor filed the complaint, it sent Defendant an invoice. (Brkich Dep. 47:13-15.)

To avoid filing debt-collection lawsuits past the statute of limitations, Defendant's procedures include the manager and owner, Michael Brkich, reviewing the debt portfolios for any statute-of-limitations issues; if the debt is past the statute of limitations, it is not pursued. (Brkich Decl. ¶ 8.) When Defendant pursues a debt, it provides the filing vendor with a "File and Serve Request Form" that contains instructions for filing the complaint and service on the opposing party. (Def.'s Ex. 2; Brkich Decl. ¶ 8.) The instructions include a "last filing date" and sometimes an indication there is a "rush" to file the complaint. ( Id. ) Defendant does not have written procedures regarding filling out the request forms. (Brkich Dep. 37:5-8.)

In response to Defendant's state-court complaint, Plaintiff filed an answer on April 22, 2013 asserting the statute of limitations as a defense to the debt collection. (Def.'s Ex. 3; Brkich Decl. ¶ 9.) However, Defendant was not aware that the filing vendor filed the complaint past the statute of limitations until Plaintiff's attorney informed Mr. Brkich over the phone on April 29, 2013. (Brkich Decl. ¶ 9.) After becoming aware of the statute-of-limitations issue, Defendant dismissed the case on May 6, 2013. (Brkich Decl. ¶ 9.)

Plaintiff commenced this lawsuit on October 24, 2013. Defendant now moves for summary judgment on all claims. Plaintiff opposes.


Summary judgment is appropriate under Rule 56(c) where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

"The district court may limit its review to the documents submitted for the purpose of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). Therefore, the court is not obligated "to scour the record in search of a genuine issue of triable fact." Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co. of Am., 55 F.3d 247, 251 (7th Cir. 1995)). If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

If the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts." Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) ("The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient.") (citing Anderson, 477 U.S. at 242, 252). Rather, the nonmoving party must "go beyond the pleadings" and by "the depositions, answers to interrogatories, ...

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