Muhammad v. Reese Law Group, APC et al

Filing 62

ORDER Granting Defendant's 55 Motion for Summary Judgment. Signed by Judge Michael M. Anello on 10/12/2017. (ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 10 11 12 13 14 15 16 SOUTHERN DISTRICT OF CALIFORNIA SABRINA MUHAMMAD, an individual, Case No.: 16cv2513-MMA (BGS) ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff, v. REESE LAW GROUP, APC, [Doc. No. 55] Defendant. Plaintiff Sabrina Muhammad (“Plaintiff”) brings this action against Defendant 17 Reese Law Group (“Defendant” or “Reese”) alleging violations of the Fair Debt 18 Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), and California’s 19 Rosenthal Fair Debt Collection Practices Act, California Civil Code § 1788 et seq. 20 (“Rosenthal Act”). See Complaint. On January 23, 2017, the Court granted Defendant’s 21 anti-SLAPP motion, dismissing Plaintiff’s Rosenthal Act claims against Reese with 22 prejudice. See Doc. No. 31. Defendant now moves for summary judgment of Plaintiff’s 23 FDCPA claims pursuant to Federal Rule of Civil Procedure 56. See Doc. No. 55. 24 Plaintiff filed an opposition to Defendant’s motion, to which Defendant replied. See Doc. 25 Nos. 57, 58. The Court found the matter suitable for determination on the papers and 26 without oral argument pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth 27 below, the Court GRANTS Defendant’s motion for summary judgment. 28 -1- 16cv2513-MMA (BGS) BACKGROUND1 1 2 Plaintiff Sabrina Muhammad is an individual residing in Orange County, 3 California. Defendant is a law firm headquartered in San Diego, California, which 4 conducts business in the state of California. 5 Plaintiff leased a vehicle from Ford Motor Credit Company (“Ford”) and defaulted 6 on the loan. On March 30, 2001, Defendant obtained a judgment against Plaintiff in the 7 Orange County Superior Court in the amount of $11,674.04. Defendant garnished 8 Plaintiff’s wages on behalf of Ford at different times over a fifteen-year period from 9 Plaintiff’s employer, the Internal Revenue Service (“IRS”). 10 On or about July 17, 2009, Defendant renewed the money judgment in the Orange 11 County Superior Court in the amount of $12,462.20. Approximately two years later in 12 November 2011, the Orange County Superior Court issued a writ of execution and 13 interest calculation in the amount of $13,007.82. 14 Approximately four years later, Defendant prepared and submitted another writ of 15 execution and interest calculation to the Orange County Superior Court. The clerk of 16 court for the Orange County Superior Court issued the writ on December 2, 2015 in the 17 amount of $17,824.98, and directed the San Diego County Sheriff to garnish Plaintiff’s 18 wages. Defendant used this writ to garnish Plaintiff’s wages from the IRS. Plaintiff 19 contests the amount owed, and claims Defendant continues to garnish Plaintiff’s wages in 20 a county other than where the debt was created or where she resides. 21 22 23 24 25 26 27 28 LEGAL STANDARD “A party may move for summary judgment, identifying each claim or defense – or                                                 1 These material facts are taken from Defendant’s statement of undisputed facts and pertinent cited exhibits. See Doc. No. 55-2. Plaintiff did not file a response to Defendant’s statement of undisputed facts, and is therefore noncompliant with the Undersigned’s Civil Chambers Rule IV. However, in the interests of justice, the Court considers Plaintiff’s declaration in developing the factual background. See Doc. No. 57-1. To the extent Plaintiff’s declaration conflicts with any statement of fact set forth by Defendant, it will be so noted. Facts that are immaterial for purposes of resolving the current motion are not included in this recitation. -2- 16cv2513-MMA (BGS) 1 the part of each claim or defense – on which summary judgment is sought. The court 2 shall grant summary judgment if the movant shows that there is no genuine dispute as to 3 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 4 P. 56(a). The party seeking summary judgment bears the initial burden of establishing 5 the basis of its motion and of identifying the portions of the declarations, pleadings, and 6 discovery that demonstrate absence of a genuine issue of material fact. Celotex Corp. v. 7 Catrett, 477 U.S. 317, 323 (1986). The moving party has “the burden of showing the 8 absence of a genuine issue as to any material fact, and for these purposes the material it 9 lodged must be viewed in the light most favorable to the opposing party.” Adickes v. S. 10 H. Kress & Co., 398 U.S. 144, 157 (1970). A fact is material if it could affect the 11 outcome of the suit under applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 12 242, 248-49 (1986). A dispute about a material fact is genuine if there is sufficient 13 evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248. 14 The party opposing summary judgment cannot “‘rest upon the mere allegations or 15 denials of [its] pleading’ but must instead produce evidence that ‘sets forth specific facts 16 showing that there is a genuine issue for trial.’” Estate of Tucker v. Interscope Records, 17 515 F.3d 1019, 1030 (9th Cir.), cert. denied, 555 U.S. 827 (2008) (quoting Fed. R. Civ. P. 18 56(e)). 19 20 21 22 DISCUSSION I. Evidentiary Objections As a preliminary matter, the parties submitted various evidentiary objections. See Doc. Nos. 57-2, 58-2. The Court addresses the parties’ objections in turn. 23 A. Plaintiff’s Evidentiary Objections 24 Plaintiff asserts four objections to the declaration of Harlan Reese and the attached 25 exhibits, submitted in support of Defendant’s motion for summary judgment. See Doc. 26 No. 57-2. Specifically, Plaintiff asserts the declaration is not relevant, lacks foundation 27 and is an improper expert opinion, lacks personal knowledge, and “constitutes 28 inadmissible hearsay.” See id. Defendant filed an opposition to Plaintiff’s evidentiary -3- 16cv2513-MMA (BGS) 1 2 objections. See Doc. No. 58-1. First, Plaintiff objects to Mr. Reese’s declaration on relevance grounds. “Evidence 3 is relevant if: (a) it has any tendency to make a fact more or less probable than it would 4 be without the evidence; and (b) the fact is of consequence in determining the action.” 5 Fed. R. Evid. 401. The Court finds Plaintiff’s relevance objection to be without merit 6 because Mr. Reese’s declaration is plainly relevant to the case at bar. As such, the Court 7 OVERRULES Plaintiff’s relevance objection (objection 1). 8 9 Second, Plaintiff objects to Mr. Reese’s declaration based on the fact that Mr. Reese has not been qualified as an expert in enforcing judgments in California. Plaintiff 10 argues Mr. Reese’s testimony should be stricken. “A witness who is qualified as an 11 expert by knowledge, skill, experience, training, or education may testify in the form of 12 an opinion” if based on technical or specialized knowledge that will help the trier of fact. 13 Fed. R. Evid. 702(a). The Court does not rely on any improper statements of opinion in 14 reaching its conclusion below. Rather, the Court relies only on objective facts supported 15 by Mr. Reese’s personal knowledge. Therefore, the Court DENIES AS MOOT 16 Plaintiff’s objection on the ground that Mr. Reese has not been qualified as an expert 17 (objection 2). 18 Third, Plaintiff asserts Mr. Reese lacks personal knowledge of the evidence 19 proffered. The Court finds this objection to be without merit, as Mr. Reese clearly has 20 personal knowledge of the documents he submitted to the state court, and documents 21 issued by the state court. Thus, the Court OVERRULES Plaintiff’s lack of personal 22 knowledge objection (objection 3). 23 Finally, Plaintiff claims Mr. Reese’s declaration constitutes inadmissible hearsay, 24 and also appears to be based on inadmissible hearsay. Hearsay is a statement made out of 25 court offered for the truth of the matter asserted. Fed. R. Evid. 801(c). Notably, Plaintiff 26 does not provide any examples as to how Mr. Reese’s declaration constitutes 27 inadmissible hearsay. The Court finds Plaintiff’s objection is without merit because Mr. 28 Reese’s statements recited in his declaration are not out of court statements offered for -4- 16cv2513-MMA (BGS) 1 the truth of the matter asserted therein. Further, to the extent Plaintiff objects to 2 Defendant’s attached exhibits, such exhibits fall within hearsay exceptions for either 3 public records or records kept in the regular course of business. See Fed. R. Evid. 4 803(6),(8). Accordingly, the Court OVERRULES Plaintiff’s hearsay objections 5 (objection 4). 6 B. Defendant’s Evidentiary Objections 7 Defendant objects to evidence submitted in support of Plaintiff’s opposition to 8 Defendant’s motion for summary judgment. See Doc. No. 58-2. Specifically, Defendant 9 objects to (a) six excerpts of Plaintiff Sabrina Muhammad’s declaration (objections 1-6) 10 on the grounds that such statements are inadmissible hearsay and call for legal 11 conclusions; (b) Exhibit A to Plaintiff’s opposition, a Garnish Order for Orange County 12 Superior Court Case No. 00HL02768, dated November 24, 2010 (objection 7); (c) 13 Exhibit B to Plaintiff’s opposition, the Civil Administration Debtor Tab Report for 14 Orange County Superior Court Case No. 00HL02768, dated January 28, 2016 (objection 15 8); (d) Exhibit C to Plaintiff’s opposition, a Wage Garnishment Report generated by the 16 Internal Revenue Service, dated April 6, 2016 (objection 9); and (e) Exhibit D to 17 Plaintiff’s opposition, a Breakdown of Wage Garnishments, dated August 3, 2016 18 (objection 10). See id. 19 As to Plaintiff’s declaration, the Court does not rely on any assertions in the 20 declaration that constitute hearsay, call for legal conclusions, or are otherwise 21 inadmissible. Rather, the Court relies only on objective facts supported by Plaintiff’s 22 personal knowledge. As such, the Court DENIES AS MOOT Defendant’s objections to 23 Plaintiff’s declaration (objections 1-6). 24 As to Defendant’s objections to Exhibits A-D, the Court does not rely on these 25 documents in reaching its conclusion below. Accordingly, the Court DENIES AS 26 MOOT Defendant’s objections to Exhibits A-D (objections 7-10). 27 II. 28 Defendant’s Motion for Summary Judgment The gravamen of Plaintiff’s Complaint is that Defendant violated the FDCPA in -5- 16cv2513-MMA (BGS) 1 two ways. First, Plaintiff alleges Defendant misrepresented the amount of Plaintiff’s 2 debt, thereby attempting to collect more money than owed on the money judgment in 3 violation of FDCPA §§ 1692d, 1692e, 1692e(10), and 1692f. Second, Plaintiff alleges 4 Defendant initiated a legal action in an improper venue in violation of § 1692i. The 5 Court addresses each claim in turn. 6 7 1. Relevant FDCPA Provisions “Seeking somewhat to level the playing field between debtors and debt collectors, 8 the FDCPA prohibits debt collectors ‘from making false or misleading representations 9 and from engaging in various abusive and unfair practices.’” Donohue v. Quick Collect, 10 Inc., 592 F.3d 1027, 1030 (9th Cir. 2010) (quoting Heintz v. Jenkins, 514 U.S. 291, 292 11 (1995)). “The FDCPA imposes strict liability on creditors, including liability for 12 violations that are not knowing or intentional.” McCollough v. Johnson, Rodenburg & 13 Lauinger, LLC, 637 F.3d 939, 952 (9th Cir. 2011) (quotation omitted). 14 As relevant here, § 1692d prohibits a “debt collector” from engaging in “any 15 conduct the natural consequence of which is to harass, oppress, or abuse any person in 16 connection with the collection of any debt.” 15 U.S.C. § 1692d. 17 Section 1692e prohibits debt collectors from using “any false, deceptive, or 18 misleading representation or means in connection with the collection of any debt.” 15 19 U.S.C. § 1692e. The statute goes on to specify certain types of conduct that qualify as 20 violations, including “[t]he use of any false representation or deceptive means to collect 21 or to attempt to collect any debt or to obtain information concerning a consumer.” 15 22 U.S.C. § 1692e(10). 23 24 25 Section 1692f provides in pertinent part, “[a] debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. Finally, § 1692i requires a debt collector who brings any legal action on a debt 26 “against any consumer” to “bring such action only in the judicial district or similar legal 27 entity (A) in which such consumer signed the contract sued upon; or (B) in which such 28 consumer resides at the commencement of the action.” 15 U.S.C. § 1692i(a)(2). -6- 16cv2513-MMA (BGS) 1 2 3 2. The Rooker-Feldman Doctrine Bars Plaintiff’s Misrepresentation and OverCollection Claim Plaintiff alleges Defendant “knowingly and willingly misrepresented the alleged 4 amount of the remaining balance owed on the money judgment against Plaintiff in 5 numerous documents directing the San Diego County Sheriff’s Office to enforce the 6 money judgment against Plaintiff by garnishing Plaintiff’s wages[.]” Complaint ¶ 3. 7 Specifically, Plaintiff contends “Defendant re-filed a wage garnishment order in San 8 Diego County for an amount larger than what Plaintiff owed according to the records of 9 her employer (the Internal Revenue Service) and Orange County (where the judgment 10 originated).” Doc. No. 57 at 6. Defendant, however, asserts Plaintiff’s misrepresentation 11 and over-collection claim is barred by the Rooker-Feldman doctrine. The Court agrees. 12 “The Rooker-Feldman doctrine forbids a losing party in state court from filing suit 13 in federal district court complaining of an injury caused by a state court judgment, and 14 seeking federal court review and rejection of that judgment.” Bell v. City of Boise, 709 15 F.3d 890, 897 (9th Cir. 2013) (citing Skinner v. Switzer, 562 U.S. 521, 531 (2011)). In 16 order to determine whether the doctrine applies, district courts “first must determine 17 whether the action contains a forbidden de facto appeal of a state court decision.” Id. 18 (citing Noel v. Hall, 341 F.3d 1148, 1158 (9th Cir. 2003)). “A de facto appeal exists 19 when ‘a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a 20 state court, and seeks relief from a state court judgment based on that decision.’ In 21 contrast, if ‘a federal plaintiff asserts as a legal wrong an allegedly illegal act or omission 22 by an adverse party, Rooker-Feldman does not bar jurisdiction.’” Id. (citing Noel, 341 23 F.3d at 1164). Even if a plaintiff seeks relief from a state court judgment, a suit 24 constitutes a “forbidden de facto appeal only if the plaintiff also alleges a legal error by 25 the state court.” Id.; see also Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 26 2004) (“[A] plaintiff must seek not only to set aside a state court judgment; he or she 27 must also allege a legal error by the state court as the basis for that relief”). 28 If a plaintiff seeks to bring a forbidden de facto appeal, that plaintiff “may not seek -7- 16cv2513-MMA (BGS) 1 to litigate an issue that is ‘inextricably intertwined’ with the state court judicial decision 2 from which the de facto appeal is brought.” Bell, 709 F.3d at 897 (citing Noel, 341 F.3d 3 at 1158). However, the “inextricably intertwined” language “is not a test to determine 4 whether a claim is a de facto appeal, but is rather a second and distinct step in the 5 Rooker-Feldman analysis. Should the action not contain a forbidden de facto appeal, the 6 Rooker-Feldman inquiry ends.” Id. (emphasis in original) (internal citation omitted). 7 In Fleming v. Gordon & Wong Law Group, P.C., a case cited by Defendant, a 8 district court considered an analogous situation to the case at bar. 723 F. Supp. 2d 1219 9 (N.D. Cal. 2010). There, a law firm obtained a state court judgment against the plaintiff, 10 renewed the judgment, obtained a writ of execution, and garnished the plaintiff’s wages. 11 Id. at 1220-21. The plaintiff filed suit alleging the defendant violated the FDCPA by 12 attempting to garnish more money than what the plaintiff owed. Id. at 1223. The 13 plaintiff claimed she was challenging the defendant’s actions in seeking excess interest 14 on a judgment already entered, not whether she owed the debt. Id. The court concluded 15 the plaintiff’s claim was barred by the Rooker-Feldman doctrine because in order to 16 evaluate the plaintiff’s claim, the court “must determine the validity of the. . . debt 17 recognized by the state court in the. . . Writ of Execution. Thus, adjudication of [the 18 plaintiff’s] FDCPA claim would undercut the state court judgment and constitute a de- 19 facto appeal.” Id. (internal citation omitted). 20 Here, the Court finds Plaintiff’s misrepresentation and over-collection claim is 21 barred by the Rooker-Feldman doctrine. Plaintiff argues she “does not challenge the 22 validity of the 2001 money judgment,” thus Rooker-Feldman is inapplicable. Doc. No. 23 57 at 15. However, Plaintiff expressly asserts Defendant is collecting “an amount larger 24 than what Plaintiff owed” on the money judgment. Doc. No. 57 at 6. Plaintiff admits 25 “the parties dispute the validity of the amounts represented on the various documents[.]” 26 Id. at 10. Plaintiff claims she has been injured as a result of Defendant collecting more 27 money than owed. Moreover, though not expressly stated in her prayer for relief, 28 Plaintiff seeks a ruling from this Court that the “Defendant improperly calculated the -8- 16cv2513-MMA (BGS) 1 alleged debt owed by Plaintiff and attempted to collect more than Plaintiff owed[.]” Doc. 2 No. 57 at 9. Thus, in essence, Plaintiff alleges a legal error by the state court and seeks 3 relief from 2015 Writ of Execution issued by the state court. 4 A challenge to the amounts garnished based on the 2015 Writ of Execution 5 necessarily requires this Court to examine the accuracy of the amount approved and 6 issued by the state court. Because adjudication of this claim would undercut the state 7 court’s judgment, Plaintiff claim is a de facto appeal barred by the Rooker-Feldman 8 doctrine. See Kougasian, 359 F.3d at 1142 (noting a plaintiff brings a de facto appeal 9 when the plaintiff alleges legal error by the state court and seeks relief from the state 10 court’s judgment); Balogun v. Winn Law Group, A.P.C., 2017 WL 2984075, at *5 (C.D. 11 Cal. July 12, 2017) (“Should this Court rule on the merits of Plaintiff’s claim, the Court 12 would need to determine the correct interest rate on Plaintiff’s debt in order to determine 13 whether Defendants misrepresented the amount of debt. This would require review and 14 possible reversal of the state court rulings,” which is barred by the Rooker-Feldman 15 doctrine); Fleming, 723 F. Supp. 2d at 1223 (“[T]here is no question that the Rooker- 16 Feldman doctrine bars a district court from reviewing an FDCPA claim that challenges 17 the validity of a debt authorized by a state court judgment.”). 18 Accordingly, the Court GRANTS Defendant’s motion as to Plaintiff’s 19 misrepresentation and over-collection claim and DISMISSES such claim because the 20 Court lacks subject matter jurisdiction over it. See Kougasian, 359 F.3d at 1139 21 (“Rooker-Feldman requires that the district court dismiss the [suit or claim] for lack of 22 subject matter jurisdiction.”). 23 3. Plaintiff’s Venue Claim Fails as a Matter of Law2 24 25 26 27 28                                                 2 The Rooker-Feldman doctrine does not bar Plaintiff’s venue claim because this claim is based on Defendant’s alleged wrongful act (garnishing wages in an improper venue), and is not otherwise “inextricably intertwined” with Plaintiff’s misrepresentation and over-collection claim. Kougasian, 359 F.3d at 1141-42; Noel, 341 F.3d at 1158 (“As a practical matter, the ‘inextricably intertwined’ test of Feldman is likely to apply primarily in cases in which the state court both promulgates and applies the -9- 16cv2513-MMA (BGS) 1 Plaintiff alleges Defendant caused a “‘Writ of Execution’ to collect a money 2 judgment to be issued against [Plaintiff] in a county where the original contract upon 3 which the money judgment was issued was not entered and where Plaintiff does not 4 reside[.]” Complaint ¶ 1.3 Further, Plaintiff contends Defendant caused an “‘Earnings 5 Withholding Order’ to be issued in a county in which Plaintiff does not reside or work 6 and in a county in which the original contract upon which the money judgment is based 7 was not entered, directing the San Diego County Sheriff’s Office to garnish Plaintiff’s 8 wages[.]” Complaint ¶ 2. In Defendant’s reply brief, Defendant admits there are no facts 9 in dispute regarding Plaintiff’s venue claim. Specifically, Defendant concedes it 10 “garnished Plaintiff’s wages outside of the county where she resided or signed the 11 contract.” Doc. No. 58 at 7. Defendant, however, argues that the FDCPA’s venue 12 provision does not apply because wage garnishment procedures in California do not 13 qualify as actions “against any consumer,” as the phrase is defined by the statute. See 14 Doc. No. 55 at 8-9. 15 Plaintiff admits that while “the Ninth Circuit has never opined on whether 16 California’s wage garnishment procedures constitute actions against consumers,” the 17 Ninth Circuit’s ruling in Fox v. Citicorp, 15 F.3d 1507 (9th Cir. 1994) “suggests Plaintiff 18 may prevail on such a claim within this district.” Doc. No. 57 at 11. The Court agrees 19 that Fox is the starting point for this Court’s analysis. There, the Ninth Circuit held that 20 an application for a writ of garnishment falls within the FDCPA’s venue provision. 15 21 F.3d at 1515. The Ninth Circuit noted, “[t]he plain meaning of the term ‘legal action’ 22 encompasses all judicial proceedings, including those in enforcement of a previously- 23 adjudicated right. Because ‘debt’ includes obligations reduced to judgment, any judicial 24 25 26 27 28                                                 rule at issue . . . and in which the loser in state court later challenges in federal court both the rule and its application.”). 3 Contrary to Plaintiff’s assertion, however, the 2015 Writ of Execution was issued by the Orange County Superior Court—the county where Plaintiff resides. See Doc. No. 55-3, Exh. 6. -10- 16cv2513-MMA (BGS) 1 2 proceeding relating to such a judgment constitutes a ‘legal action on a debt.’” Id. Defendant argues that the Ninth Circuit in Fox did not take the next step and 3 address the “against any consumer” element also found in 15 U.S.C. § 1692i(a). 4 Defendant relies on several post-Fox decisions by circuit courts for the proposition that a 5 garnishment action flowing from a writ of execution, even though a legal action on a 6 debt, is not an action against a consumer. See Doc. No. 55 at 8-9 (citing Ray v. 7 McCullough Payne & Haan, LLC, 838 F.3d 1107, 1111 (11th Cir. 2016) (reviewing 8 Georgia law); Jackson v. Blitt & Gaines, P.C., 833 F.3d 860, 864-65 (7th Cir. 2016) 9 (reviewing Illinois law); Hageman v. Barton, 817 F.3d 611, 618-19 (8th Cir. 2016) 10 (same); Smith v. Solomon & Solomon, PC, 714 F.3d 73, 75-77 (1st Cir. 2013) (reviewing 11 Massachusetts law)). Each circuit court distinguished Fox because the Ninth Circuit did 12 not analyze the “against any consumer” language in § 1692i. 13 In Jackson, the Seventh Circuit agreed with the Ninth Circuit’s conclusion in Fox 14 that “‘legal action’ in § 1692i means ‘all judicial proceedings, including those in 15 enforcement of a previously-adjudicated right.’” 833 F.3d at 863 (citing Fox, 15 F.3d at 16 1515). However, the Seventh Circuit noted that “[t]his determination though does not 17 answer our question. The [statute] after all provides that the legal action must be on a 18 debt ‘against any consumer.’” Id. at 863-64. In order to determine what “against any 19 consumer means,” the Seventh Circuit looked to the nature of the judicial proceedings at 20 issue, which “require[d] [the court] to refer to Illinois law and the wage garnishment 21 scheme in place there. We use the word nature to make clear that we analyze the 22 proceeding’s characteristics and features, careful to avoid the ‘tyranny of labels’ when 23 relying upon state law to define the scope of a federal statute and cause of action.’” Id. at 24 864 (citing EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696, 705 (7th Cir. 2002)). 25 The First, Eighth, and Eleventh Circuits similarly all looked to the relevant state wage 26 garnishment procedures in determining the meaning of the phrase “against any 27 consumer.” 28 In Ray, the most recent decision on this issue, the Eleventh Circuit concluded that a -11- 16cv2513-MMA (BGS) 1 Georgia garnishment proceeding is not an action against a consumer. 838 F.3d at 1111. 2 Specifically, the garnishment process requires the judgment creditor to direct its 3 summons to the employer, not the consumer, and requires the employer, not the 4 consumer, to file an answer. See id. The governing statute in Georgia specifically 5 provides that “[a] garnishment proceeding is an action between the plaintiff [judgment 6 creditor] and garnishee.” Id. (citing Ga. Code. § 18-4-15(a)). Thus, the Eleventh Circuit 7 concluded that “the process is fundamentally an action against the garnishee, not the 8 consumer.” Id. 9 Cole v. Cardez Credit Affiliates, LLC, a case cited by neither party, is the only 10 court in the Ninth Circuit that the Court is aware of to address this issue. 2015 WL 11 1281651 (D. Idaho Mar. 19, 2015). There, the district court held “an examination of state 12 law is appropriate for the purposes of determining whether an enforcement action is 13 against a consumer or third party under the FDCPA’s venue provision, but only when the 14 underlying judgment is the product of an FDCPA-compliant claim”—i.e., when the 15 original action is first brought in a proper venue. Id. at *6-7. Because the state court 16 action was filed in an improper venue in Cole, the court found that it was not required to 17 “examine Idaho state law in order to decide the pending motions.” Id. at *7. However, 18 the court noted that had the plaintiffs originally resided in the county where the 19 defendants initiated the state court action, the circuit court opinions “would more neatly 20 apply and an examination of Idaho state law might be warranted—possibly to the effect 21 that Defendants now argue. But that is not what we have here.” Id. at *8. 22 Here, Plaintiff does not claim Defendant obtained the underlying judgment in an 23 improper venue. In fact, Plaintiff acknowledges Defendant obtained the judgment in 24 Orange County—the county where Plaintiff resides. Doc. No. 57 at 6 (“Defendant sued 25 Plaintiff on behalf of Ford and obtained a judgment in Orange County”). As such, this 26 Court finds persuasive the district court’s reasoning in Cole, in addition to the reasoning 27 of the First, Seventh, Eighth and Eleventh Circuits. Thus, the Court proceeds by looking 28 to California’s wage garnishment scheme to determine whether a wage-deduction -12- 16cv2513-MMA (BGS) 1 proceeding is truly “against any consumer,” or rather, the employer. The Court is 2 mindful that the FDCPA preempts state law to the extent state law affords a consumer 3 less protection than the FDCPA does. See 15 U.S.C. § 1692n. 4 Upon review of California’s garnishment scheme, the Court finds FDCPA’s venue 5 provision does not apply to post-judgment garnishment proceedings under California law. 6 California Civil Procedure Code § 699.510(a) provides in relevant part, 7 8 9 10 a writ of execution shall be issued by the clerk of the court, upon application of the judgment creditor, and shall be directed to the levying officer in the county where the levy is to be made and to any registered process server. . . . A separate writ shall be issued for each county where a levy is to be made. 11 Cal. Civ. Proc. Code § 699.510(a). Additionally, “[u]pon delivery of the writ of 12 execution to the levying officer to whom the writ is directed, together with the written 13 instructions of the judgment creditor, the levying officer shall execute the writ in the 14 manner prescribed by law.” Cal. Civ. Proc. Code § 699.530(a). The judgment creditor 15 then applies for an earnings withholding order, which the levying officer serves upon the 16 employer.4 See Cal. Civ. Proc. Code §§ 706.021, 706.103 (emphasis added). Once 17 served, the employer has a duty to deliver a copy of the relevant documents to the 18 judgment debtor. Cal. Civ. Proc. Code § 706.104(a) (emphasis added). The judgment 19 debtor, however, has an opportunity to claim an exemption or object to the garnishment 20 amount. Cal. Civ. Proc. Code § 706.105(e). The employer is required to respond to the 21 earnings withholding order by first-class mail to the levying officer within fifteen (15) 22 days from the date of service. Cal. Civ. Proc. Code § 706.104(b) (emphasis). The 23 employer is required to withhold earnings and pay the levying officer. Cal. Civ. Proc. 24 Code § 706.022(b) (emphasis added). Finally, if an employer fails to withhold or to pay 25 26 27 28                                                 4 Because Plaintiff alleges she works for the IRS, federal law applies. Federal law requires that the garnishment paperwork be served upon the employer’s designated agent. See 5 U.S.C. § 5520a(c)(1)(A) (emphasis added). -13- 16cv2513-MMA (BGS) 1 over the amount the employer is required to withhold, “the judgment creditor may bring a 2 civil action against the employer to recover such amount.” Cal. Civ. Proc. Code § 3 706.154 (emphasis added). Thus, it is quite evident that in California the process is 4 fundamentally an action against the employer—not the consumer. Therefore, Plaintiff’s 5 FDCPA venue claim fails as a matter of law. 6 Plaintiff’s argument that a “jury could foreseeably hold” California’s wage 7 garnishment procedure is an action against a consumer is misplaced. Doc. No. 57 at 12. 8 “The judge decides questions of law; the jury, questions of fact.” Sparf v. United States, 9 156 U.S. 51, 89 (1895). Whether California’s wage garnishment procedure is an action 10 against a consumer is a legal question for the Court to determine. Thus, Plaintiff’s 11 argument is without merit. 12 Accordingly, because wage garnishment proceedings in California do not qualify 13 as actions against a consumer, the Court GRANTS Defendant’s motion for summary 14 judgment as to Plaintiff’s venue claim. 15 16 CONCLUSION Based on the foregoing, the Court GRANTS Defendant’s motion for summary 17 judgment. The Court DISMISSES Plaintiff’s misrepresentation and over-collection 18 claim without prejudice, as it is barred by the Rooker-Feldman doctrine.5 Further, the 19 Court DISMISSES Plaintiff’s venue claim with prejudice. Accordingly, the Clerk of 20 Court is instructed to enter judgment in favor of Defendant and terminate the case. 21 22 IT IS SO ORDERED. Dated: October 12, 2017 23 _____________________________ HON. MICHAEL M. ANELLO United States District Judge 24 25 26 27 28                                                 5 Dismissal of Plaintiff’s misrepresentation and over-collection claim is without prejudice because “[a] dismissal under the Rooker-Feldman doctrine is a dismissal for lack of subject-matter jurisdiction”). Fleming, 723 F. Supp. 2d at 1224 n.10 (citing Kougasian, 359 F.3d at 1139). -14- 16cv2513-MMA (BGS)

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