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Shepard-Hall v. Gordon and Wong Law Group, P.C.

United States District Court, E.D. California

June 16, 2017

GORDON AND WONG LAW GROUP PC and DOES 1 to 10, Defendant.



         In this 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 GRANTED.[1]


         Non-party 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.

         On 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.

         On 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. 2.


         A. Summary Judgment

         The 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.

         Rule 56 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 adjudication).

         In a 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).

         In 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.

         In 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).

         B. ...

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