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NEI Contracting and Engineering, Inc. v. Hanson Aggregates Pacific Southwest, Inc.

United States District Court, S.D. California

March 24, 2015

NEI CONTRACTING AND ENGINEERING, INC., Plaintiff,
v.
HANSON AGGREGATES PACIFIC SOUTHWEST, INC., ET AL. Defendants.

ORDER DENYING DEFENDANT HANSON AGGREGATES PACIFIC SOUTHWEST, INC.'S MOTION FOR SUMMARY JUDGMENT (ECF No. 73)

CYNTHIA BASHANT, District Judge.

On July 6, 2012, Plaintiff NEI Contracting and Engineering, Inc. ("Plaintiff") commenced this putative class action against Defendants Hanson Aggregates Pacific Southwest, Inc. ("Hanson Pacific"), Hanson Aggregates, Inc., and Lehigh Hanson Co. (collectively, "Defendants") alleging a violation of California Penal Code Section 630, et seq. On October 29, 2013, Plaintiff filed a Second Amended Complaint, the operative complaint, against Defendants, alleging a violation of California Penal Code Section 632.7 ("Section 632.7"). (ECF No. 41 ("SAC").) Hanson Pacific now moves for summary judgment. Plaintiff filed an opposition.

Having reviewed the papers submitted and heard oral argument from both parties, for the reasons set forth below, this Court DENIES Defendant's motion for summary judgment (ECF No. 73).

I. FACTUAL BACKGROUND

Defendants "are related entities and are all engaged in the business of providing construction concrete, aggregate, ready mix and related materials to contractors engaged in the construction industry." (SAC ¶ 4.) Hanson Pacific receives all orders for construction materials through a dedicated telephone line. (ECF No. 73-3 ("Woods Decl.") ¶ 5.) Prior to July 15, 2009, Hanson Pacific utilized a "Voice Print International" ("VPI") system, which created a recording of every call made to or from the Ready Mix Dispatch or Aggregate Dispatch lines. ( Id. at ¶ 10.) While using the VPI system, Hanson Pacific used "beep tone generators" on all of its telephones which received calls routed to its Ready Mix Dispatch or Aggregate Dispatch lines, which produced an audible "beep tone" every fifteen seconds during a call to provide notice to callers that the call was being recorded. ( Id. at ¶ 11; ECF No. 88 (Joint Statement of Undisputed Material Fact ("JSUF")) ¶¶ 1, 2.) Plaintiff is a contractor and placed numerous orders with Hanson Pacific for construction materials. (SAC ¶ 4; JSUF ¶ 4.) During the pre-July 15, 2009 period, Plaintiff heard the "beep tones" during its phone calls with Hanson Pacific. (JSUF ¶ 4.)

On July 15, 2009, Hanson Pacific replaced the VPI system and discontinued its use of the "beep tone generators" and began using "a pre-recorded verbal admonition, " which stated:

Thank you for calling Hanson Aggregate Material [Ready Mix] Dispatch. Your call may be monitored for quality assurance. Our hours of Operation are 6:00AM to 4:00PM, Monday thru [sic] Friday. Please remain on the line and your call will be answered as soon as possible. Thank you for your patience.

(JSUF ¶ 5; see also Woods Decl. ¶¶ 13, 14.)

During the period between July 15, 2009 and July 5, 2011, Defendants recorded forty-four of Plaintiff's calls. (JSUF ¶ 5.) On December 23, 2013, Defendants updated the verbal admonition to state that calls may be "monitored or recorded for quality assurance purposes." (Woods Decl. ¶ 17.)

II. STANDARD OF REVIEW

Federal courts sitting in diversity "apply state substantive law and federal procedural law." Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1090 (9th Cir. 2001) (citing Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996)). Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if "the movant shows that 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue of 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); George v. Morris, 736 F.3d 829, 834 (9th Cir. 2013). A dispute is "genuine" if "a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see also FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010). "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Anderson, 477 U.S. at 248).

A party seeking summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. The moving party without the ultimate burden of persuasion at trial can satisfy this burden in two ways: (1) by producing "evidence negating an essential element of the nonmoving party's claim or defense;" or (2) by demonstrating that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000); Celotex, 477 U.S. at 322-23; Fed.R.Civ.P. 56(c)(1). Evidence may be offered "to support or dispute a fact" on summary judgment only if it "could be presented in an admissible form at trial." Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003); see also Fed.R.Civ.P. 56(c)(2). However, at the summary judgment stage, the focus is not on the admissibility of the evidence's form, but on the admissibility of its contents. Id. If the moving party meets it burden, the burden then shifts to the non-moving party to produce admissible evidence showing a genuine issue of material fact. Nissan Fire, 210 F.3d at 1102-03; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

"[I]n granting summary judgment a district court cannot resolve disputed questions of material fact; rather, that court must view all of the facts in the record in the light most favorable to the non-moving party and rule, as a matter of law, based on those facts." Albino v. Baca, 747 F.3d 1162, 1173 (9th Cir. 2014). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury ...


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