United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
SUMMARY JUDGMENT; SCHEDULING ORDER
JEFFREY T. MILLER JUDGE
Ziba Youssofi (“Plaintiff”) moves for summary
judgment or, alternatively, for partial summary judgment on
the remaining claims alleged in this Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. §1692
et seq., action. Defendant CMRE Financial Services,
Inc. (“CMRE”) opposes the motion. Pursuant to
L.R. 7.1(d)(1), the court finds the matters presented
appropriate for decision without oral argument. For the
reasons set forth below, the court grants in part and denies
in part the motion for summary judgment. The court also
instructs the parties to contact the chambers of Magistrate
Judge William V. Gallo to schedule a case management
FAC, filed on November 2, 2015, alleges eight counts for
violation of the FDCPA and a single state law claim for
violation of the Rosenthal Fair Debt Collections Practices
Act (“Rosenthal Act”), Cal. Civil Code
§1788.17. Plaintiff’s claims arise from two
different collection letters or notices she received from
CMRE, a debt collector, regarding a consumer debt.
about October 29, 2014, Plaintiff received the first
collection notice from CMRE seeking to collect an alleged
debt of $716.30 plus $1.18 in interest (the “Validation
Notice”). (FAC Exh. 1). The Validation Notice consisted
of a single page and allegedly did not identify the name of
the creditor nor provide any information to identify the
nature of the debt. On November 17, 2014, Plaintiff retained
counsel and counsel sent a letter to CMRE disputing the debt.
second collection notice, dated December 9, 2014, clearly and
unambiguously identified the creditor as Emergency Services
Medical Corporation. The debt arises from the provision of
emergency medical services to Plaintiff. Plaintiff never paid
the debt. The second notice identified the same debt of
$716.30, in addition to interest charges of $9.62. (FAC Exh.
October 14, 2015, Plaintiff commenced the present action. On
March 15, 2016, the court granted CMRE’s motion to
dismiss Counts 1, 2, 4, 6-9 with prejudice and denied the
motion to dismiss Counts 3, 5, and the Rosenthal Act claim.
Pursuant to Fed.R.Civ.P. 12(d), the court also converted the
motion to one for summary judgment on the remaining claims.
The two remaining issues in this case are essentially (1)
whether Plaintiff was provided with page two of the
Validation Notice and (2) whether the interest calculation
set forth in the December 9, 2014 collection notice
overstated the amount of interest by $0.39. The court
concluded that these were discrete, narrowly focused factual
issues subject to discovery and, presumably, resolution by
summary judgment. The parties have completed discovery and
Plaintiff now moves for summary judgment on the remaining
motion for summary judgment shall be granted where
“there is no genuine issue as to any material fact and
. . . the moving party is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c); Prison Legal News v.
Lehman, 397 F.3d 692, 698 (9th Cir. 2005). The moving
party bears the initial burden of informing the court of the
basis for its motion and identifying those portions of the
file which it believes demonstrate the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). There is “no express or
implied requirement in Rule 56 that the moving party support
its motion with affidavits or other similar materials
negating the opponent’s claim.”
Id. (emphasis in original). The opposing party
cannot rest on the mere allegations or denials of a pleading,
but must “go beyond the pleadings and by [the
party’s] own affidavits, or by the ‘depositions,
answers to interrogatories, and admissions on file’
designate ‘specific facts showing that there is a
genuine issue for trial.’” Id. at 324
(citation omitted). The opposing party also may not rely
solely on conclusory allegations unsupported by factual data.
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
court must examine the evidence in the light most favorable
to the non-moving party. United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962). Any doubt as to the
existence of any issue of material fact requires denial of
the motion. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). On a motion for summary judgment, when
“‘the moving party bears the burden of
proof at trial, it must come forward with evidence which
would entitle it to a directed verdict if the evidence were
uncontroverted at trial.’” Houghton v.
South, 965 F.2d 1532, 1536 (9th Cir. 1992) (emphasis in
original) (quoting International Shortstop, Inc. v.
Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir.
1991), cert. denied, 502 U.S. 1059 (1992)).
comes forward with her declaration to show that the one-page
Validation Notice she received did not identify the creditor
in violation of 15 U.S.C. §§1692g(a)(2), 1692e, and
1692e(10). (Youssofi Decl. ¶5). Plaintiff declares that
she did not receive page two to the letter. She also did not
submit the envelope containing the Validation Notice to
support her motion. As this evidence demonstrates that the