Ferrier v. Gordon & Wong Law Group, P.C.

Filing 24

ORDER signed by Judge Garland E. Burrell, Jr. on 1/30/2015 ORDERING that Defendant's 13 Motion for Summary Judgment is GRANTED. The Clerk of the Court is directed to enter judgment in favor of Defendant and close this action. Plaintiff's counsel's 20 Motion to Withdraw as Attorney is DENIED AS MOOT. CASE CLOSED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ERICA FERRIER,

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No. 2:14-CV-356-GEB-DAD

Plaintiff,
v.

ORDER GRANTING DEFENDANT’S
SUMMARY JUDGMENT MOTION; AND
DENYING AS MOOT PLAINTIFF’S
ATTORNEY’S MOTION TO WITHDRAW AS
COUNSEL

GORDON & WONG LAW GROUP,
P.C.,
Defendant.

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Defendant

violated

the

(“FDCPA”),

on

each

claim

in

federal

the

Fair

California

Debt

Collection

Rosenthal

Fair

Practices
Debt

Act

Collection

Practices Act (“Rosenthal Act”), the Electronic Funds Transfer
Act (“EFTA”) and California‟s Unfair Competition Law (“UCL”).
Further Plaintiff‟s counsel seeks an order authorizing
it to withdraw as Plaintiff‟s counsel of record. (ECF No. 20.)
I.
A.

A
burden

DEFENADNT’S MOTION FOR SUMMARY JUDGMENT

Legal Standard

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judgment

Defendant‟s conduct in attempting to collect a debt from her

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summary

Plaintiff‟s Complaint. Plaintiff alleges in her Complaint that

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seeks

of

party

seeking

demonstrating

summary
the

judgment

absence

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of

a

bears

the

genuine

initial

issue

of

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material

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(1986). It may support its assertion that a material fact cannot

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be genuinely disputed by “showing that the materials cited do not

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establish the absence or presence of a genuine dispute, or that

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an adverse party cannot produce admissible evidence to support

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the fact.” Fed. Rule Civ. Proc. (“Rule”) 56(c)(1)(B). “A fact is

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„material‟ when . . .

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Thrifty Oil Co. v. Bank of Am. Nat‟l Trust & Sav. Ass‟n, 322 F.3d

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1039, 1046 (9th Cir. 2003) (quoting Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 248 (1986)). An issue of material fact is

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“genuine” when “the evidence is such that a reasonable jury could

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return a verdict for the nonmoving party.” Anderson, 477 U.S. at

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248.

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fact.

If

Celotex

the

Corp.

v.

Catrett,

477

U.S.

317,

323

it could affect the outcome of the case.”

movant

satisfies

its

“initial

burden,”

“the

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nonmoving party must set forth, by affidavit or as otherwise

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provided in . . . Rule 56, „specific facts showing that there is

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a genuine issue for trial.‟” T.W. Elec. Serv., Inc. v. Pac. Elec.

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Contractors Ass‟n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting

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former Rule 56(e)). Summary judgment “evidence must be viewed in

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the

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reasonable inferences must be drawn in favor of that party.” Sec.

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& Exch. Comm‟n v. Todd, 642 F.3d 1207, 1215 (9th Cir. 2011)

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(citing Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d

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1222, 1227 (9th Cir. 2001)).

light

most

favorable

to

the

nonmoving

party,

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Further, Local Rule 260(b) prescribes:

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Any party opposing a motion for summary
judgment . . . [must] reproduce the itemized
facts in the [moving party‟s] Statement of
Undisputed Facts and admit those facts that
are undisputed and deny those that are
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and

all

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disputed, including with each denial a
citation to the particular portions of any
pleading,
affidavit,
deposition,
interrogatory answer, admission, or other
document relied upon in support of that
denial.

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If

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nonmovant

does

not

“specifically

.

.

.

[controvert duly supported] facts identified in the [movant‟s]
statement of undisputed facts,” the nonmovant “is deemed to have
admitted the validity of the facts contained in the [movant‟s]
statement.” Beard v. Banks, 548 U.S. 521, 527 (2006).

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the

Because a district court has no independent duty “to
scour the record in search of a genuine issue of triable fact,”
and may “rely on the nonmoving party to identify with reasonable
particularity the evidence that precludes summary judgment,”...
the district court . . . [is] under no obligation to undertake a
cumbersome

review

of

the

record

on

the

[nonmoving

party‟s]

behalf. Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th
Cir. 2010) (quoting Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.
1996)).
B.

UNCONTROVERTED FACTS
The following facts are uncontroverted. In July 2010,

Plaintiff‟s unpaid financial obligation to Watsonville Community
Hospital was referred to Defendant for collection. (SUF ¶ 1, ECF
No. 15-2.) Defendant filed a collection lawsuit against Plaintiff
on September 2010, following which the court entered judgment in
Defendant‟s favor in the amount of $2,304.54. (SUF ¶¶ 2, 5.) On
April 9, 2013, the court issued a writ of execution for $2,226.00
at Defendant‟s request. (SUF ¶ 16.) Plaintiff‟s bank was served
with a Notice of Levy and on May 7, 2013, following which the

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Sheriff remitted to Defendant $2,261.00 taken from Plaintiff‟s

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bank account. (SUF ¶¶ 17-18.)

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C. DISCUSSION

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1.

Rule 56(d)

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Plaintiff

argues

Defendant‟s

summary

judgment

motion

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should be denied because “Defendant was provided an extension on

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responding to Plaintiff‟s discovery, prior to the filing of its

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motion, and thus, Plaintiff has not had the benefits of adequate

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discovery, in order to have a fair and reasonable opportunity to

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oppose Defendant‟s motion.” (Pl.‟s Opp‟n Def.‟s Mot. Summ. J.

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(“Opp‟n”) 4:18-22, ECF No. 15.) This argument is construed as a

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motion under Rule 56(d)(1), which states: “If a nonmovant shows

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by

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cannot present facts essential to justify its opposition, the

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court may: defer considering the motion or deny it.”

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affidavit

or

declaration

Defendant

argues

that,

that

for

specified

Plaintiff‟s

reasons,

request

should

it

be

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denied since “the party seeking a continuance [under Rule 56(d)]

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has the burden of showing (1) that there are specific facts that

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it hopes to elicit from further discovery; (2) that those facts

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actually exist; and (3) that they are „essential‟ to resist the

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summary judgment motion,” and Plaintiff “has not pointed to any

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specific facts that are essential to resist summary judgment.”

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(Reply ISO Mot. Summ. J. (“Reply”) 8:16-17, ECF No. 16.)

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Plaintiff has not supported her Rule 56(d) request “by

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affidavit or declaration”; nor has Plaintiff “specified reasons

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[she] . . . cannot present facts essential” to her opposition

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without additional discovery. Rule 56(d). Therefore, Plaintiff‟s

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Rule 56(d) request is denied.
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2.

Fair Debt Collection Practices Act (“FDCPA”) and

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Rosenthal

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(“Rosenthal Act”)

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Plaintiff

Fair

alleges

Debt

in

her

Collection

Complaint

Practices

that

Act

Defendant

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violated the following provisions of the FDCPA: 15 U.S.C. §§

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1692d, e(2)(A), e(1), f, f(1). (Compl. ¶ 15.) California law

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prescribes violations of 15 U.S.C. §§ 1692(b)-(j) also constitute

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violations

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1788.17.

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of

California‟s

a.

Rosenthal

Act.

Cal.

Civ.

Code

§

Debt Collection Agency

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Defendant seeks summary judgment on Plaintiff‟s FDCPA

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and Rosenthal Act claims alleged under 15 U.S.C. §§ 1692e(2)(A),

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e(10), f, and f(1); arguing these claims are premised on the

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allegations in Plaintiff‟s Complaint that Defendant referred her

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“account to a debt collection agency,” which did not occur. (Mot.

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Summ. J. (“Mot.”) 11:5-7, ECF No. 13.)

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Plaintiff‟s

Complaint

reveals

that

these

claims

are

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premised solely on the factual allegation that Defendant sent her

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debt to a debt collection agency, which the uncontroverted facts

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evince did not occur. (See Compl. ¶ 15, ECF No. 1; SUF ¶ 20.)

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Therefore, Defendant‟s motion is granted.

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b.

Harass, Oppress, or Abuse

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Plaintiff alleges Defendant violated 15 U.S.C. § 1692d

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of the FDCPA and the Rosenthal Act by “engag[ing] in . . .

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conduct the natural consequence of which is to harass, oppress,

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or abuse . . . [her] in connection with the collection of a

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debt.” (Compl. ¶ 15). Defendant argues it is entitled to summary

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judgment on these claims because there are no facts supporting
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them.

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Plaintiff

“has

.

.

.

failed

to

make

a

[factual]

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showing” that any of these claims are supported by evidence.

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Celotex Corp., 477 U.S. at 323. “When the nonmoving party has the

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burden of proof at trial, the moving party need only point out

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that there is an absence of evidence to support the nonmoving

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party's case.” Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.

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2001)(citation

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granted.

omitted).

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3.

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Defendant

Therefore,

Defendant‟s

motion

is

Electronic Funds Transfer Act (“EFTA”)
contends

its

summary

judgment

motion

on

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Plaintiff‟s Electronic Funds Transfer Act (“EFTA”) claim should

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be

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Plaintiff

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Defendant] . . . was initiated by generating a physical paper

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check.” (Mot. 14:17-18.)

granted,

since

made

the

because

EFTA

does

“each

not

apply

payment

to

any

Plaintiff

payment

[made

to

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The EFTA applies to “electronic fund transfers” but

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explicitly excludes “a transaction originated by check, draft, or

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similar paper instrument” from the definition of an “electronic

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fund transfer.” 15 U.S.C. § 1693a(7).

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Defendant

supports
fact

stating:

with

asserted

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Plaintiff‟s bank account were made in 2010 and 2011 pursuant to

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the payment plan and were made by paper checks drawn on her

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account

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Gordon Decl., ¶ 8.”

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“[a]ll withdrawals from Plaintiff‟s bank account were made . . .

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by paper checks drawn on her account.” (Gordon Decl. ¶ 8, ECF No.

subsequently

deposited

“All

its

undisputed

were

of

motion

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and

statement

its

at

withdraws

the

firm‟s

from

bank.

(SUF ¶ 8.) Specifically, Gordon declares:

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13-2.)

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Plaintiff

objects

to

the

admissibility

of

Gordon‟s

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declaration, arguing it “lacks foundation and is speculative.”

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(Opp‟n 11:11-12.)

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Defendant responds that “as a partner at [the Defendant

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law

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[Defendant law firm‟s] practices, including payment processing

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procedures.” (Reply 7:3-5.)

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firm],

Ms.

Gordon

Gordon

declares

is

in

competent

her

to

testify

declaration

that

as

she

to

is

the

“a

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partner at Gordon & Wong Law Group, P.C.” and the information in

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her declaration is “based on [her] . . . experience running the

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law firm, and [her]...review of records” the Defendant maintains.

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(Gordon Decl. ¶ 1.) In light of what Gordon declares, Plaintiff‟s

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foundation and speculation objections are overruled.

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Since Plaintiff has not shown that an electronic fund

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transfer occurred, she does not have a viable EFTA claim and this

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portion of Defendant‟s motion is granted.

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4.

Unfair Competition Law (“UCL”)

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Defendant

seeks

summary

judgment

on

Plaintiff‟s

UCL

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claim arguing she bases the claim entirely on the success of

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other claims in the Complaint and since summary judgment should

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be granted in Defendant‟s favor on those claims, it should be

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granted in Defendant‟s favor on Plaintiff‟s UCL claim as well.

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(Mot. 13:5-7.)

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Plaintiff offers no basis for her UCL claim, other than

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her non-viable Rosenthal Act, FDCPA, and EFTA claims. Therefore,

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Defendant‟s motion on Plaintiff‟s UCL claim is granted.

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D.

CONCLUSION

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For the reasons stated, Defendant‟s summary judgment

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motion is GRANTED. The Clerk of the Court is directed to enter

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judgment in favor of Defendant and close this action.

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II. PLAINTIFF’S COUNSEL’S MOTION TO WITHDRAW

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Lastly, since Defendant‟s motion has been granted, it

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appears

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Plaintiff‟s attorney of record is moot; therefore, the motion is

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denied as moot.

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Dated:

that

Plaintiff‟s

counsel‟s

January 30, 2015

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motion

to

withdraw

as