United States District Court, E.D. California
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, JR. UNITED STATES DISTRTCT JUDGE
suit, Plaintiff Judy Shepard-Hall alleges Defendant Gordon
& Wong Law Group, P.C. violated the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. §§
1692-1692p, in collecting a state court judgment Defendant
had been retained by a third party to enforce. Before the
Court now are Defendant's Motion for Summary Judgment,
ECF No. 9, and Motion for Sanctions, ECF No. 10, for filing a
frivolous law suit. For the reasons below, both motions are
Asset Acceptance, LLC, retained Defendant Gordon & Wong
to enforce a state court judgment entered against Plaintiff
Shepard-Hall for the balance of Dell Financial Services
account. Stmt. Undisputed Facts (“SUF”), ECF No.
9-1, ¶ 1. On February 23, 2016, Defendant filed a writ
of execution to garnish Plaintiff's wages, which was
served on Plaintiff's employer by the Sacramento County
Sheriff's Office. Id. ¶ 2. On April 8,
2016, the parties agreed by phone to settle the debt for a
single payment of $3, 000. Id. ¶ 4. Plaintiff
was represented by the Price Law Group, APC,
(“PLG”) during these negotiations. See
id. ¶¶ 3-4.
April 15, 2016, Defendant faxed a letter to PLG reflecting
the settlement terms. Id. ¶ 7. PLG then called
Defendant, informing Defendant that Plaintiff's wages had
been garnished $834.09 that morning, and the parties agreed
to reduce the $3, 000 settlement by the amount garnished.
Id. ¶ 8. Four days later, Defendant sent a new
settlement letter to PLG, reflecting the new terms, and also
faxed a notice to the Sacramento County Sheriff's Office
to terminate the garnishment effective immediately.
Id. ¶¶ 9-10. On that same day-that is,
four days after the new agreement was reached-Plaintiff sent
Defendant a signed copy of the original settlement agreement
and the full $3, 000, not deducting the amount garnished as
specified in the new agreement.
April 29, 2016, as a result of an error by the Sheriff's
Office, Plaintiff's wages were garnished again, even
though the Sheriff's Office had been notified of the
garnishment's termination. Id. ¶ 14.
Because the garnishments resulted in overpayment, Defendant
voided the check it had received from the first garnishment,
and instructed the Sheriff's Office to return the second
garnishment to Plaintiff, which it did. Id. ¶
16. /// /// On May 5, 2016, Defendant received a letter from
PLG demanding $4, 000 in order to avoid suit under the FDCPA.
Id. ¶ 14. Defendant refused to pay the $4, 000,
and this suit followed about a month later. Compl., ECF No.
Federal Rules of Civil Procedure provide for summary judgment
when “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);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). One of the principal purposes of Rule 56 is to
dispose of factually unsupported claims or defenses.
Celotex, 477 U.S. at 325.
also allows a court to grant summary judgment on part of a
claim or defense, known as partial summary judgment.
See Fed.R.Civ.P. 56(a) (“A party may move for
summary judgment, identifying each claim or defense-or the
part of each claim or defense-on which summary judgment is
sought.”); see also Allstate Ins. Co. v.
Madan, 889 F.Supp. 374, 378-79 (C.D. Cal. 1995). The
standard that applies to a motion for partial summary
judgment is the same as that which applies to a motion for
summary judgment. See Fed.R.Civ.P. 56(a); State
of Cal. ex rel. Cal. Dep't of Toxic Substances Control v.
Campbell, 138 F.3d 772, 780 (9th Cir. 1998) (applying
the summary judgment standard to motion for summary
summary judgment motion, the moving party always bears the
initial responsibility of informing the court of the basis
for the motion and identifying the portions in the record
“which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex, 477 U.S. at
323. “However, if the nonmoving party bears the burden
of proof on an issue at trial, the moving party need not
produce affirmative evidence of an absence of fact to satisfy
its burden.” In re Brazier Forest Prods. Inc.,
921 F.2d 221, 223 (9th Cir. 1990). If the moving party meets
its initial responsibility, the burden then shifts to the
opposing party to establish that a genuine issue as to any
material fact actually does exist. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986); First Nat'l Bank v. Cities Serv. Co.,
391 U.S. 253, 288-89 (1968).
attempting to establish the existence or non-existence of a
genuine factual dispute, the party must support its assertion
by “citing to particular parts of materials in the
record, including depositions, documents, electronically
stored information, affidavits[, ] or declarations . . . or
other materials; or showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1). The opposing
party must demonstrate that the fact in contention is
material, i.e., a fact that might affect the outcome of the
suit under the governing law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 251-52 (1986); Owens v.
Local No. 169, Ass'n of W. Pulp & Paper Workers,
971 F.2d 347, 355 (9th Cir. 1987). The opposing party must
also demonstrate that the dispute about a material fact
“is ‘genuine, ' that is, if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248.
In other words, the judge needs to answer the preliminary
question before the evidence is left to the jury of
“not whether there is literally no evidence, but
whether there is any upon which a jury could properly proceed
to find a verdict for the party producing it, upon whom the
onus of proof is imposed.” Anderson,
477 U.S. at 251 (quoting Improvement Co. v. Munson,
81 U.S. 442, 448 (1871)). As the Supreme Court explained,
“[w]hen the moving party has carried its burden under
Rule [56(a)], its opponent must do more than simply show that
there is some metaphysical doubt as to the material
facts.” Matsushita, 475 U.S. at 586.
Therefore, “[w]here the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving
party, there is no ‘genuine issue for
trial.'” Id. at 587.
resolving a summary judgment motion, the evidence of the
opposing party is to be believed, and all reasonable
inferences that may be drawn from the facts placed before the
court must be drawn in favor of the opposing party.
Anderson, 477 U.S. at 255. Nevertheless, inferences
are not drawn out of the air, and it is the opposing
party's obligation to produce a factual predicate from
which the inference may be drawn. Richards v. Nielsen
Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal.
1985), aff'd, 810 F.2d 898 (9th Cir. 1987).