Ciganek v. Portfolio Recovery Assocs., LLC

190 F.Supp.3d 908

William Ciganek, Plaintiff,

v.Portfolio Recovery Associates, LLC, et al., Defendants.

Case No. 15-CV-03837-LHK

United States District Court, N.D. California, San Jose Division.

Signed June 07, 2016

Raeon Rodrigo Roulston, Fred W. Schwinn, San Jose, CA, for Plaintiff.

Tomio Buck Narita, Jeffrey A. Topor, Jennifer Lawdan Yazdi, Simmonds & Narita LLP, San Francisco, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

LUCY H. KOH, United States District Judge

Plaintiff William Ciganek, Jr., brings this putative class action case for violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. ECF No. 1. Defendants Portfolio Recovery Associates, LLC ("PRA"); Hunt & Henriques ("H&H"); Michael Scott Hunt; and Janalie Ann Henriques (collectively, "Defendants") have filed a motion for summary judgment. ECF No. 42 ("Mot."). Pursuant to Civil Local Rule 7-1(b), the Court finds oral argument unnecessary to the resolution of this dispute and VACATES the hearing set for June 9, 2016. Having considered the parties' papers, the relevant law, and the record in this case, the Court GRANTS Defendants' motion for summary judgment. The Court VACATES the case management conference set for June 9, 2016.

I. BACKGROUND

A. Factual Background

This case concerns Defendants' alleged failure to comply with Cal. Civ. Proc. Code § 98, which provides in relevant part:

A party may, in lieu of presenting direct testimony, offer the prepared testimony of relevant witnesses in the form of affidavits or declarations under penalty of perjury. The prepared testimony may include, but need not be limited to, the opinions of expert witnesses, and testimony which authenticates documentary evidence. To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case, provided that either of the following applies:

(a) A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.

(b) The statement is in the form of all or part of a deposition in the case, and the party against whom it is offered had an opportunity to participate in the deposition.

Defendants do not dispute the relevant facts in this case as set forth in the Complaint, ECF No. 1 ("Compl.").See Mot. at 2-3.

On an unspecified date, Plaintiff William Ciganek, Jr., opened a consumer credit account with GE Capital Retail Bank/General Electric Capital Corp/Care Credit. Compl. ¶ 12. Plaintiff subsequently defaulted on his consumer credit account, and the defaulted debt was "sold, assigned, or otherwise transferred" to PRA. Id. ¶ 13. PRA then placed the debt with H&H for collection. Id. ¶ 14.

In March 2015, Defendants, seeking to collect the defaulted consumer debt from Plaintiff, filed a lawsuit against Plaintiff in the Superior Court of California, Santa Clara County (the "state court litigation"). Id. ¶ 15. On July 22, 2015, Defendants sent Plaintiff a document titled "Declaration of Plaintiff [in the state court litigation] in Lieu of Personal Testimony at Trial (CPP § 98 )" (the "Marin Declaration"). Id. ¶ 16, Ex. 1. The Marin Declaration described Plaintiff's unpaid credit account and was signed by PRA employee Maria Marin. Id. ¶ 17, Ex. 1. The final paragraph of the Marin Declaration states, "Pursuant to CCP § 98 this affiant is available for service of process: c/o Hunt & Henriques, 151 Bernal Road, Suite 8, San Jose, CA 95119 for a reasonable period of time, during the twenty days immediately prior to trial." Id. ¶ 19, Ex. 1. The provided address was not Marin's residential or work address. See id. ¶¶ 23-24; ECF No. 42-1 ("Hunt Decl.") ¶ 5. Nevertheless, H&H was authorized to accept service of process on Marin's behalf at the provided address. Compl., Ex. 1; Hunt Decl. ¶¶ 5-6. Plaintiff alleges that Marin lived more than 150 miles from the location of the trial courthouse, and Defendants do not dispute this allegation. See Compl. ¶¶ 23-24; Mot. at 2-3. Plaintiff did not attempt to effect service of process of any document on Marin as part of the state court litigation. See ECF No. 42-5 ("Narita Decl."), Ex. A at 2:15-4:26 (Plaintiff's responses to Defendants' Requests for Admission, admitting that no attempt at serving Marin was made).

B. Procedural History

Plaintiff filed this putative class action lawsuit on August 21, 2015. Compl. On October 20, 2015, the Court ordered the case related to Meza v. Portfolio Recovery Associates, LLC , No. 14-CV-03486-LHK ("Meza "), and the case was reassigned accordingly to the undersigned judge. ECF No. 20.

Plaintiff purports to represent a class of "(i) all persons residing in California, (ii) who were served by Defendants with a Declaration in Lieu of Personal Testimony at Trial, pursuant to California Code of Civil Procedure § 98, (iii) where the declarant was located more than 150 miles from the courthouse where the collection lawsuit was pending, (iv) in an attempt to collect an alleged debt originally owed to GE Capital Retail Bank/General Electric Capital Corp/Care Credit (v) regarding a debt incurred for personal, family, or household purposes, (vi) during the period beginning one year prior to the date of filing this matter through the date of class certification." Compl. ¶ 31. The Complaint alleges that Defendants violated the FDCPA by using declarations in lieu of personal testimony at trial, pursuant to Cal. Civ. Proc. Code § 98, where the declarant¹ was physically located more than 150 miles from the place of trial. Id. ¶¶ 45-55. Defendants filed an Answer to the Complaint on November 18, 2015. ECF No. 22.

On March 21, 2016, Defendants filed the instant motion for summary judgment. ECF No. 42 ("Mot."). Plaintiff filed a response on April 4, 2016, ECF No. 43 ("Opp."), and Defendants filed a reply on April 11, 2016, ECF No. 44 ("Reply").

II. LEGAL STANDARD

Summary judgment is appropriate if, viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmoving party, there are no genuine disputed issues of 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law," and a dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable trier of fact to decide in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "If the evidence is merely colorable, or is not significantly probative," the court may grant summary judgment. Id. at 249–50, 106 S.Ct. 2505 (citation omitted). At the summary judgment stage, the Court "does not assess credibility or weigh the evidence, but simply determines whether there is a genuine factual issue for trial." House v. Bell , 547 U.S. 518, 559–60, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006).

When, as here, there are no disputes of material fact, the Court "shall grant summary judgment if...the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

III. DISCUSSION

A. The FDCPA

"Congress enacted the FDCPA to protect consumers from ‘improper conduct’ and illegitimate collection practices without imposing unnecessary restrictions on ethical debt collectors." Clark v. Capital Credit & Collection Servs., Inc. , 460 F.3d 1162, 1169–70 (9th Cir.2006). "In order to state a claim under the FDCPA, a plaintiff must show: 1) that he is a consumer; 2) that the debt arises out of a transaction entered into for personal purposes; 3) that the defendant is a debt collector; and 4) that the defendant violated one of the provisions of the FDCPA." Freeman v. ABC Legal Servs. Inc. , 827 F.Supp.2d 1065, 1071 (N.D.Cal.2011). Defendants' motion for summary judgment challenges only the fourth prong of this analysis and argues that Plaintiff cannot show that Defendants violated any provision of the FDCPA. ECF No. 41.

Plaintiff alleges that Defendants violated Sections 1692e, 1692e(5), 1692e(10), and 1692f of the FDCPA. See Compl. ¶ 53. Section 1692e states in relevant part:

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

...

(5) The threat to take any action that cannot legally be taken or that is not intended to be taken.

...

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

15 U.S.C. § 1692e. Section 1692f prohibits a debt collector from using "unfair or unconscionable means to collect or attempt to collect any debt." Id. § 1692f.

In the Ninth Circuit, the "least sophisticated debtor" standard is used to assess alleged FDCPA violations. Wade v. Regional Credit Ass'n , 87 F.3d 1098, 1100 (9th Cir.1996). A communication from a debt collector violates the FDCPA if it is "likely to deceive or mislead a hypothetical ‘least sophisticated debtor.’ " Id. "Although this standard is objective, the standard is lower than simply examining whether particular language would deceive or mislead a reasonable debtor." Swanson v. S. Or. Credit Serv., Inc. , 869 F.2d 1222, 1227 (9th Cir.1988). Nevertheless, "false but non-material representations are not likely to mislead the least sophisticated consumer and therefore are not actionable under §§ 1692e or 1692f." Donohue v. Quick Collect, Inc. , 592 F.3d 1027, 1033 (9th Cir.2010). Determining whether a debt collector has violated the ...