GRANT v. UNIFUND CCR PARTNERS Case No. CV 11-8140 CAS (FEMx).
842 F.Supp.2d 1234 (2012)
Kimberly GRANT, Plaintiff, v. UNIFUND CCR PARTNERS; et al., Defendants.
United States District Court, C.D. California, Western Division.
February 6, 2012.
Miriam L. Schimmel , Joshua Carlon , Cory Lee , Andrew Joseph Sokolowski , Initiative Legal Group APC, Los Angeles, CA, for Plaintiff.
R. Travis Campbell , Tomio B Narita , Simmonds & Narita LLP, San Francisco, CA, for Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
CHRISTINA A. SNYDER, District Judge.
On September 30, 2011, plaintiff Kimberly Grant ("plaintiff") filed the instant
On January 2, 2012, defendants filed a motion for summary judgment. On January 13, 2012, plaintiff filed her opposition, and on January 23, 2012, defendants filed their reply. After carefully considering the arguments set forth by both parties, the Court finds and concludes as follows.
On September 20, 2008, plaintiff was sued by Unifund CCR in Los Angeles County Superior Court for collection of unpaid credit card debt (the "state court action"). Def. Request for Judicial Notice ("RJN") Exh. A. Because plaintiff never responded to the complaint, the Superior Court granted Unifund CCR's request for entry of default judgment, finding plaintiff liable to Unifund CCR in the amount of $2,513.13. Id. Exh. E. Unifund CCR executed a Writ of Execution issued on February 23, 2009, to secure the funds owed from plaintiff's bank account. Id. Exh. F. On October 5, 2011, more than three years after default had been entered, plaintiff filed a motion to vacate the judgment, claiming she had never been served with the complaint. Id. Exh. G. The Los Angeles County Superior Court denied the motion on November 9, 2011. Id. Exh. H.
Prior to filing the motion to vacate in the state court action, plaintiff filed the instant putative class action in this Court on September 30, 2011. Dkt. No. 1. The gravamen of plaintiff's complaint is that Unifund CCR "files hundreds of lawsuits across the country each month ... without effectuating proper service of the summons and complaint," constituting violations of the FDCPA, abuse of process, conversion, and violation of California's UCL. Compl. ¶¶ 17, 20.
As to the FDCPA, plaintiff avers that defendants "used unfair or unconscionable means ... to collect or attempt to collect alleged debts" because they "failed to communicate notice about the alleged debt before filing lawsuits, filed lawsuits ... without effectuating proper service in order to obtain default judgment, and used false and fraudulent `robo-signed' declarations and/or affidavits to support the collection of alleged debts...." Id. ¶ 60. Plaintiff alleges that defendants' use of the declarations of Kim Kenney and Bobby Carnes in connection with default judgments "constitutes a false communication to the Court because it represents that the declarants... personally signed the declaration and have personal knowledge about the facts contained therein." Id. ¶ 62. According to plaintiff, defendants' conduct violates sections 1692e(8), 1692e(10), and 1692f of the FDCPA. Id. ¶¶ 62, 63, 66. Defendants' alleged FDCPA violations form the basis for plaintiff's UCL claim. Id. ¶¶ 96, 98.
As to abuse of process and conversion, plaintiff alleges that she was never served with the summons and complaint in connection with the state court action and that defendants wrongfully converted her monetary funds when they executed the Writ of Execution to garnish her bank account. Id. ¶¶ 80, 88.
III. LEGAL STANDARD
Summary judgment is appropriate where "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). The moving party bears the initial burden of identifying relevant portions of the record that demonstrate
If the moving party meets its initial burden, the opposing party must then set out specific facts showing a genuine issue for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Fed.R.Civ.P. 56(c), (e). The nonmoving party must not simply rely on the pleadings and must do more than make "conclusory allegations [in] an affidavit." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); see also Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment must be granted for the moving party if the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. 2548; see also Abromson v. Am. Pac. Corp., 114 F.3d 898, 902 (9th Cir. 1997).
In light of the facts presented by the nonmoving party, along with any undisputed facts, the Court must decide whether the moving party is entitled to judgment as a matter of law. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 & n. 3 (9th Cir.1987). When deciding a motion for summary judgment, "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted); Valley Nat'l Bank of Ariz. v. A.E. Rouse & Co., 121 F.3d 1332, 1335 (9th Cir.1997). Summary judgment for the moving party is proper when a rational trier of fact would not be able to find for the nonmoving party on the claims at issue. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.
Defendants argue that this action must be dismissed because the Court lacks jurisdiction under the Rooker-Feldman doctrine in light of the Los Angeles County Superior Court's prior rulings. Mot. at 5-10 (citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); Dist. of Columbia Ct. of App. v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)). Alternatively, defendants argue the claims are barred by collateral estoppel and California's litigation privilege. Id. at 10-14. Defendants also argue that plaintiff's FDCPA claim fails as a matter of law. Id. at 14. Finally, defendants contend that "to the extent [plaintiff] alleges any claims against Unifund [Corp.] they fail for the same reasons stated above." Id. at 15 (alterations omitted).
In opposition, plaintiff argues that a recent Supreme Court case "disapproved of application of the Rooker-Feldman doctrine outside the specific facts of those cases and overruled all of defendants' cited caselaw," rendering the doctrine inapplicable here. Opp'n at 3, 5-8 (alterations omitted) (citing Skinner v. Switzer, ___ U.S. ___, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011)). Further, plaintiff asserts that neither collateral estoppel nor the litigation privilege bars her claims under California law. Id. at 8-11. Finally, plaintiff contends that the Court "should deny defendants' motion with respect to plaintiff's [FDCPA] claim and claim against Unifund Corp. or, alternatively, afford plaintiff time for discovery on those claims." Id. at 13-14 (alterations omitted).
A. Application of the Rooker-Feldman Doctrine to This Case
The Rooker-Feldman doctrine applies to "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). "The purpose of the doctrine is to protect state judgments from collateral federal attack. Because district courts lack power to hear direct appeals from state court decisions, they must decline jurisdiction whenever they are `in essence being called upon to review the state court decision.'" Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001) (quoting Feldman, 460 U.S. at 482 n. 16, 103 S.Ct. 1303). The doctrine applies "not only to claims that were actually raised before the state court, but also to claims that are inextricably intertwined with state court determinations." Kelley v. Med-1 Solutions, LLC, 548 F.3d 600, 603 (7th Cir.2008). Claims are "inextricably intertwined" with a state court decision if "the adjudication of the federal claims would undercut the state ruling or require the district court to interpret the application of state laws or procedural rules...." Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 859 (9th Cir.2008). See also Napolitano, 252 F.3d at 1030 ("Where the district court must hold that the state court was wrong in order to find in favor of the plaintiff, the issues presented to both courts are inextricably intertwined.").
Although plaintiff argues that this Court must decide the merits of her claims because the Los Angeles County Superior Court set forth no reasoning in denying her motion to vacate the entry of default judgment, the Rooker-Feldman doctrine prevents litigants from collaterally attacking a state court judgment "no matter how erroneous or unconstitutional the state court judgment may be." Med-1 Solutions, 548 F.3d at 603. Here, in entering default against plaintiff in 2008, the Los Angeles County Superior Court expressly found that plaintiff was served with a copy of the summons and complaint in that action. See Def. RJN Exh. E at 1.a ("Defendant was properly served with a copy of the summons and complaint."); and Exh. I (state court docket entry dated 10/20/2008 entitled "proof of service of summons & complaint"). Three years later, it denied plaintiff's motion to vacate the judgment, and plaintiff did not appeal.
The only question remaining is whether this jurisdictional bar extends to each of plaintiff's claims. The complaint contains four repeated allegations of Unifund CCR's wrongful conduct: (1) that plaintiff was never served with the summons and complaint in the state court action (Compl. ¶¶ 30, 43(d), 61-64, 66, 73-74, 76, 79-80, 98); (2) that plaintiff does not owe the debt at issue in the state court action (id. ¶¶ 71, 86); (3) that Unifund CCR improperly garnished her money (id. ¶¶ 72, 79, 85, 87-89); and (4) that the Kenney Affidavit submitted in support of the request for default judgment was "false and fraudulent" (id. ¶¶ 22-23, 60-66, 75, 79-80, 97-98). Were the Court to rule that Unifund CCR committed any of those alleged wrongs, it "would undercut the state ruling" that plaintiff was in fact served with a copy of the summons and complaint, owed the debt to Unifund CCR, and authorized Unifund CCR to execute a Writ of Execution. Reusser, 525 F.3d at 859; Bryant, 681 F.Supp.2d at 1208.
Accordingly, pursuant to the Rooker-Feldman doctrine, the Court cannot entertain any claims premised on those alleged wrongs.
The only allegation outside the scope of the state court action is that defendants "did not give [p]laintiff proper written notice
B. Plaintiff's Claim Under Section 1692g(a) of the FDCPA
Section 1692g(a) of the FDCPA requires debt collectors to notify consumers, in writing, of the following:
15 U.S.C. § 1692g(a).
Under Ninth Circuit law, a § 1692g(a) notice must be "sent" to the consumer by the collector, but the collector "need not establish actual receipt by the debtor." Mahon v. Credit Bureau of Placer Cnty., Inc., 171 F.3d 1197, 1201 (9th Cir.1999) (granting summary judgment for debt collector even though debtors testified that they had no memory of receiving the notice). To overcome the presumption of mailing and receipt, a debtor must prove "by clear and convincing evidence that the mailing was not, in fact, accomplished." In re Bucknum, 951 F.2d 204, 207 (9th Cir.1991).
Defendants argue that "Unifund CCR did send the notice required by section 1692g in its initial demand letter to [plaintiff], dated May 29, 2008, four months prior to filing" the state court action. Mot. at 14 (emphasis in original) (citing Declaration of Autumn Hopkins ("Hopkins Decl.") ¶ 3, Exh. B). According to defendants, the letter was mailed to plaintiff's address and "was
In opposition, plaintiff argues that the Hopkins Declaration is "insufficient to establish proper and legally sufficient mailing" because defendants have not explained "how the correspondence was sent or  describe the business practices for handling of the correspondence." Opp'n at 13 (relying on Beuter v. Canyon State Prof'l Servs., Inc., 2005 U.S. Dist. LEXIS 12281, *13 (D.Ariz. June 13, 2005)). Plaintiff requests that the Court grant her additional time to conduct discovery if it is inclined to grant summary judgment as to this claim. Id. at 14-15.
The Court finds that Unifund CCR complied with § 1692g. The Ninth Circuit requires only that a debt collector provide testimony that a letter was sent and not returned as undeliverable. Mahon, 171 F.3d at 1201. Here, defendants have offered
Accordingly, plaintiff's claim for violation of the FDCPA § 1692g(a) fails as a matter of law.
C. Plaintiff's Request for a Continuance to Conduct Further Discovery
In her opposition, plaintiff requests that if the Court grants summary judgment as to the FDCPA § 1692g(a) claim, it should also grant her additional time to conduct discovery pursuant to Fed.R.Civ.P. 56(d). Opp'n at 14-15. Plaintiff notes that the case was filed relatively recently, on September 30, 2011, and that the parties conducted their Rule 26 conference less than two months ago on December 21, 2011. Id. at 15. Plaintiff thus contends that she "has not had the opportunity to conduct any discovery regarding" her § 1692g(a) claim. Id.
Defendants counter that plaintiff "has not met her burden under Rule 56(d) of proving `by affidavit or declaration that, for specified reasons, [she] cannot present facts essential to justify [her] opposition.'" Reply at 10 (emphasis omitted) (citing Fed.R.Civ.P. 56(d)).
Plaintiff's request for a continuance is therefore DENIED.
In accordance with the foregoing, defendants' motion for summary judgment is GRANTED.
IT IS SO ORDERED.
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