Griffin v. Navient Solutions, Inc. et al, No. 3:2015cv01818 - Document 28 (S.D. Cal. 2016)
Court Description: ORDER Granting in Part and Denying in Part Defendant's 18 Motion for Summary Judgment. Signed by Judge Dana M. Sabraw on 9/30/16. (dlg)
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Griffin v. Navient Solutions, Inc. et al Doc. 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 ANTWAN GRIFFIN, an individual, 11 v. 12 13 14 CASE NO. 15cv1818 DMS (DHB) Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT NAVIENT SOLUTIONS, INC., a corporation, and DOES 1 through 10 inclusive, 15 16 Defendant. This case comes before the Court on Defendant’s motion for summary judgment. 17 Plaintiff filed an opposition to the motion, and Defendant filed a reply. After a 18 thorough review of the issues, the motion is granted in part and denied in part. 19 I. 20 BACKGROUND 21 Plaintiff Antwan Griffin has been active duty in the United States Navy since 22 December 2001. Since 2009, Plaintiff has “been deployed three times including a 23 thirteen month assignment in Cuba from 2010-2011.” (Decl. of Plaintiff Antwan 24 Griffin in Supp. of Opp’n to Mot. (“Griffin Decl.”) ¶ 4.) Plaintiff has “had numerous 25 underways (sea exercises) as well.” (Id.) In January 2012, Plaintiff “participated in a 26 US Navy rescue mission of hostages from Somali pirates in the Persian Gulf.” (Id. ¶ 27 5.) 28 / / / -1- 15cv1818 Dockets.Justia.com 1 In 2003, Plaintiff was in a relationship with Shannon Matthews. On October 8, 2 2003, Plaintiff executed a Special Power of Attorney in favor of Ms. Matthews “[t]o 3 accept, endorse, negotiate for, sign for and take possession of such leased property in 4 my name, and to execute all necessary documents, instruments or papers and perform 5 all acts necessary to carry out the foregoing.” (Decl. of Cheryl Dillon in Supp. of Mot. 6 (“Dillon Decl.”), Ex. B.) That Power of Attorney remained in effect until October 8, 7 2004. (Id.) 8 Five days after Plaintiff executed the Power of Attorney, on October 13, 2003, 9 Ms. Matthews applied for a student loan in the amount of $10,224. (Id., Ex. A.) That 10 application lists Plaintiff as the Co-borrower, and is signed on his behalf. (Id.)1 That 11 loan disbursed on November 19, 2003, and is referred to here as Loan 6. 12 Plaintiff states his relationship with Ms. Matthews ended in November 2003. 13 (Griffin Decl. ¶ 6.) Nevertheless, on January 14, 2004, Ms. Matthews applied for 14 another student loan in the amount of $2,000. (Dillon Decl., Ex. C.) As with Loan 6, 15 the application for the second loan lists Plaintiff as the Co-borrower, and is signed on 16 his behalf. (Id.) That loan disbursed on January 27, 2004, and is referred to here as 17 Loan 7. 18 Ms. Matthews applied for two additional student loans on April 27, 2004, and 19 July 30, 2004, for $1,000 and $15,000, respectively. (Id., Exs. D, E.) As with Loans 20 6 and 7, these applications list Plaintiff as the Co-borrower, and are signed on his 21 behalf. (Id.) Those loans disbursed on May 19, 2004, and August 10, 2004, 22 respectively. Those Loans are referred to here as Loans 9 and 10. 23 Plaintiff states he did not sign the applications for Loans 6, 7, 9 and 10. (Griffin 24 Decl. ¶ 10.) Plaintiff also states Loans 7, 9 and 10 “were taken out without my 25 knowledge, permission or authorization.” (Id.) 26 / / / 27 / / / 28 1 Plaintiff states he did not sign this Application. (Griffin Decl. ¶ 8.) -2- 15cv1818 1 At some point thereafter, the Loans were referred to Defendant Navient 2 Solutions, Inc. for servicing. (Dillon Decl. ¶ 2.) Defendant’s attempts to collect on the 3 Loans alerted Plaintiff to Loans 7, 9 and 10. 4 In April 2005, Plaintiff contacted Defendant’s fraud department to inform them 5 that his signatures on the applications for three of the Loans were made without his 6 permission. (Decl. of Jeremy Golden in Supp. of Opp’n to Mot. (“Golden Decl.”), Ex. 7 15.) In response, Defendant sent Plaintiff a letter requesting that he complete an 8 Identity Theft Report. (Id., Ex. 6.) 9 On September 28, 2005, Plaintiff again contacted Defendant’s fraud department 10 stating he did not authorize Loans 7, 9 and 10. (Id., Ex. 15.) Defendant sent Plaintiff 11 another letter requesting an Identity Theft Report. (Id., Ex. 7.) 12 Plaintiff contacted Defendant’s fraud department again on November 16, 2005, 13 stating he did not receive a copy of Defendant’s letter because he had moved, and 14 asking for another copy. (Id., Ex. 15.) It is unclear whether Defendant sent another 15 letter to Plaintiff. It is undisputed, however, that Plaintiff did not submit an Identity 16 Theft Report at that time. 17 Thereafter, Defendant made several calls to Plaintiff in an attempt to collect on 18 the Loans. (Id.) Plaintiff states he received calls on two of his phone numbers, 76019 430-8143 and 760-453-8233. (Griffin Decl. ¶ 14.) Plaintiff states he used the 8143 20 number prior to 2007/2008. (Def.’s Statement of Undisputed Facts in Supp. of Reply 21 to Opp’n to Mot., Fact No. 18.) Defendant states it never used an autodialer to place 22 calls to the 8233 number. (Dillon Decl. ¶ 8.) 23 On December 31, 2009, Defendant “charged off” the Loans, and the Loans “were 24 placed with outside agencies for collection.” (Id. ¶ 5.) Between January 2010 and 25 February 2015, the Loans were placed with nine different collection agencies. (Id. ¶ 7.) 26 Defendant states those agencies “are independent contractors. NSI did not exercise 27 control over the conduct or activities of these collection agencies and has no right to 28 / / / -3- 15cv1818 1 exercise control under the applicable service contracts NSI maintains with these 2 vendors.” (Id.) 3 It appears that on July 31, 2012, Defendant began reporting the delinquent Loans 4 to the credit reporting agencies. (Golden Decl., Ex. 15.) It also appears Plaintiff called 5 Defendant in March 2013 about the Loans. (Id.) 6 On January 14, 2015, Plaintiff sent Defendant a letter requesting that any further 7 attempts to contact him be in writing only. (Dillon Decl., Ex. F.) Thereafter, Defendant 8 recalled the Loans from the outside collection agencies, and no further attempts at 9 collections were made. (Id. ¶ 6.) 10 Plaintiff contacted Defendant again on February 23, 2015. (Golden Decl., Ex. 11 15.) Defendant provided Plaintiff with another Identity Theft Packet, which he returned 12 to Defendant on March 12, 2015. (Decl. of Jayson Bocanegra in Supp. of Mot. 13 (“Bocanegra Decl.”) ¶ 5.) Defendant “initially concluded that [Plaintiff’s] claim of 14 identity theft with regard to Loans 7, 9 and 10 could not be substantiated.” (Id. ¶ 6.) 15 However, 16 17 18 [u]pon further review, NSI determined that Loans 7, 9, and 10 were originated during a period of time when Griffin was out of the country serving in the military and were approved based on the fact Matthews had a Power of Attorney. NSI ultimately concluded the Power of Attorney did not give Matthews the authority to enter Griffin into contracts. 19 (Id. ¶ 7.) As a result of that determination, Defendant removed Plaintiff’s name from 20 Loans 7, 9 and 10 on May 28, 2015. (Id., Ex. B.) Defendant also submitted an update 21 to the credit reporting agencies that removed those Loans from Plaintiff’s credit report. 22 (Id.) Those Loans were removed from Plaintiff’s credit report on June 4, 2015. (Def.’s 23 Statement of Undisputed Facts in Supp. of Reply to Opp’n to Mot., Fact No. 16.) 24 On June 18, 2015, Plaintiff filed the present case in San Diego Superior Court. 25 In the Complaint, he alleges claims for (1) violation of the Rosenthal Act, California 26 Civil Code §§ 1788.11(d), 1788.11(e), 1788.17 and 1788.18, (2) violation of the 27 Consumer Credit Reporting Agencies Act (“CCRAA”), California Civil Code § 28 1785.25(a), (3) violation of the Identity Theft Act, California Civil Code § 1798.92 et. -4- 15cv1818 1 seq., (4) invasion of privacy and (5) violation of the Telephone Consumer Protection 2 Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii). Defendant removed the case to this Court 3 on August 14, 2015. 4 II. 5 DISCUSSION 6 Defendant moves for summary judgment on all of Plaintiff’s claims.2 Plaintiff 7 argues there are genuine issues of material fact that preclude summary judgment. 8 A. Legal Standard 9 Summary judgment is appropriate if there is no genuine issue as to any material 10 fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 11 56(c). The moving party has the initial burden of demonstrating that summary 12 judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The 13 moving party must identify the pleadings, depositions, affidavits, or other evidence that 14 it “believes demonstrates the absence of a genuine issue of material fact.” Celotex 15 Corp. v. Catrett, 477 U.S. 317, 323 (1986). “A material issue of fact is one that affects 16 the outcome of the litigation and requires a trial to resolve the parties’ differing versions 17 of the truth.” S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). 18 The burden then shifts to the opposing party to show that summary judgment is 19 not appropriate. Celotex, 477 U.S. at 324. The opposing party’s evidence is to be 20 believed, and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty 21 Lobby, Inc., 477 U.S. 242, 255 (1986). However, to avoid summary judgment, the 22 opposing party cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 23 F.2d 457, 459 (9th Cir. 1986). Instead, it must designate specific facts showing there 24 is a genuine issue for trial. Id. See also Butler v. San Diego District Attorney’s Office, 25 2 Defendant also moves for summary judgment that it is not liable for the 26 conduct of any third party collection agencies. Notably, none of those agencies is named as a defendant in this case, which they would have to be for any theories of 27 vicarious liability to apply. And even if any of these agencies was named as a defendant, Plaintiff has failed to produce any evidence to support any theory of 28 vicarious liability. Because there is no issue of vicarious liability in this case, Defendant’s request for summary judgment on that issue is denied as moot. -5- 15cv1818 1 370 F.3d 956, 958 (9th Cir. 2004) (stating if defendant produces enough evidence to 2 require plaintiff to go beyond pleadings, plaintiff must counter by producing evidence 3 of his own). More than a “metaphysical doubt” is required to establish a genuine issue 4 of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 5 586 (1986). 6 B. Statutes of Limitation 7 Before turning to the substantive claims alleged in this case, the Court turns to 8 whether Defendant is entitled to summary judgment based on the statutes of limitation. 9 Defendant argues this affirmative defense entitles it to summary judgment on all claims 10 except the CCRAA claim. Plaintiff asserts he is entitled to the benefits of the 11 Servicemembers Civil Relief Act (“SCRA”), which renders his claims timely. 12 The statutes of limitation for Plaintiff’s claims are one year for the Rosenthal Act 13 claim, Cal. Civ. Code § 1788.30(f), and the invasion of privacy claim, Maheu v. CBS, 14 Inc., 201 Cal. App. 3d 662, 676 (1988), and four years for the Identity Theft Act claim, 15 Cal. Civ. Code § 1798.96, and the TCPA claim. See 28 U.S.C. § 1658(a); Lofton v. 16 Verizon Wireless (VAW) LLC, 308 F.R.D. 276, 281 (N.D. Cal. 2015). 17 On the Rosenthal Act, invasion of privacy and TCPA claims, Defendant asserts 18 it ceased all collection efforts on December 31, 2009, and thus Plaintiff should have 19 filed on or before December 31, 2010, for the Rosenthal Act and invasion of privacy 20 claims and on or before December 31, 2013, for the TCPA claim.3 On the Identity 21 Theft Act claim, Defendant argues Plaintiff knew he was a victim of identity theft no 22 later than 2006, and thus he should have filed this claim before 2010. 23 In response to these arguments, Plaintiff asserts he is entitled to the benefits of 24 the SCRA. The SCRA “was passed ‘to enable [servicemembers] to devote their entire 25 energy to the defense needs of the Nation.’” Brewster v. Sun Trust Mortgage, Inc., 742 26 27 3 The Court notes the Rosenthal Act claim is based on conduct other than Defendant’s collection efforts, e.g., credit reporting. (See Compl. ¶ 26(h).) Defendant 28 does not assert that conduct ceased by December 31, 2009, and thus, the following discussion does not affect that aspect of Plaintiff’s Rosenthal Act claim. -6- 15cv1818 1 F.3d 876, 878 (9th Cir. 2014) (quoting 50 U.S.C. app. § 502(1)). To accomplish this 2 objective, the SCRA includes a provision on tolling of statutes of limitations. See 50 3 U.S.C. § 3936(a). This provision states: 4 5 6 7 The period of a servicemember’s military service may not be included in computing any period limited by law, regulation, or order for the bringing of any action or proceeding in a court, or in any board, bureau, commission, department, or other agency of a State (or political subdivision of a State) or the United States by or against the servicemember or the servicemember’s heirs, executors, administrators, or assigns. 8 50 U.S.C. § 3936(a). 9 Defendant here does not dispute that Plaintiff has been active duty in the United 10 States Navy since 2001. However, it argues the SCRA’s tolling provision “should not 11 be applied to career military who are not hampered by their service from pursuing a 12 claim in a timely manner.” (Mem. of P. & A. in Supp. of Mot. at 22.) In support of this 13 argument, Defendant relies on a case from the Fifth Circuit, Pannell v. Continental Can 14 Co., 554 F.2d 216 (5th Cir. 1977), but that decision has been criticized by the United 15 States Supreme Court. See Conroy v. Aniskoff, 507 U.S. 511 (1993). Defendant does 16 not address Conroy in its reply brief, but in light of that case, this Court declines to 17 follow Pannell. Under the reasoning in Conroy, Plaintiff is entitled to tolling during the 18 entirety of his active duty service in the Navy. Thus, Defendant is not entitled to 19 summary judgment based on the statutes of limitation. 20 C. Rosenthal Act 21 Turning to the substantive claims, Plaintiff’s first claim alleges eleven violations 22 of the Rosenthal Act. (See Compl. ¶ 26(a)-(k).) Specifically, Plaintiff alleges 23 Defendant engaged in unlawful debt collection activities, unlawful credit reporting 24 activities and failed to cease collection activities until it made a good faith investigation 25 into Plaintiff’s claim of identity theft. (Id.) Defendant argues there is no evidence it 26 violated these sections of the Act, therefore it is entitled to summary judgment. 27 As the party moving for summary judgment, Defendant bears the burden of 28 showing there are no genuine issues of material fact. It has failed to meet that burden -7- 15cv1818 1 on the first two aspects of Plaintiff’s Rosenthal Act claim. Although Defendant asserts 2 it did not place any debt collection calls to Plaintiff after December 31, 2009, Plaintiff 3 presented evidence to the contrary. (See Golden Decl., Ex. 15) (showing call to Plaintiff 4 on March 13, 2013). Furthermore, Defendant failed to show that it did not place any 5 debt collection calls prior to December 31, 2009, and indeed, the evidence reflects that 6 it did. (See id.) (showing calls to Plaintiff on November 16, 2005, November 25, 2005, 7 December 6, 2005, December 8, 2005, and December 9, 2005). Thus, Defendant is not 8 entitled to summary judgment on this aspect of Plaintiff’s Rosenthal Act claim.4 9 Defendant also fails to show there is an absence of genuine issues of material fact 10 on the credit reporting aspect of Plaintiff’s claim. To be clear, this aspect of Plaintiff’s 11 claim is based on 15 U.S.C. § 1692e(8), which states it is unlawful to “[c]ommunicat[e] 12 or threaten[ ] to communicate to any person credit information which is known or which 13 should be known to be false, including the failure to communicate that a disputed debt 14 is disputed.” 15 U.S.C. § 1692e(8). Defendant argues it is not liable under this statute 15 because it “updated the status of Loans 7, 9 and 10 upon receipt of written notice of 16 Plaintiff’s identity theft claim to reflect the loans as under investigation and disputed.” 17 (Mem. of P. & A. in Supp. of Mot. at 11) (citing Bocanegra Decl. ¶ 9) (emphasis 18 added). However, the statute “does not impose a writing requirement on consumers 19 who wish to dispute a debt.” Brady v. Credit Recovery Co., 160 F.3d 64, 67 (1st Cir. 20 1998). In this case, the evidence reflects Plaintiff notified Defendant of a dispute 21 surrounding the Loans by April 29, 2005. (Golden Decl., Ex. 15.) Defendant fails to 22 show it communicated that dispute to the credit reporting agencies, and thus it is not 23 entitled to summary judgment on this aspect of Plaintiff’s claim. 24 The final aspect of Plaintiff’s Rosenthal Act claim concerns Defendant’s alleged 25 failure to “cease collection activities until [it] made a good faith determination regarding 26 Plaintiff’s claims of identity theft.” (Compl. ¶ 26(k).) Here, Defendant argues there is 27 4 Defendant relies on these same arguments in support of its request for summary 28 judgment on Plaintiff’s invasion of privacy claim. For the reasons set out above, that request is similarly denied. -8- 15cv1818 1 no evidence it violated this section of the Rosenthal Act. The Court agrees. Defendant 2 has presented evidence that it ceased all collection efforts by at least March 12, 2015, 3 which is when Plaintiff submitted his written claim of identity theft to Defendant. 4 (Def.’s Statement of Undisputed Facts in Supp. of Reply to Opp’n to Mot., Fact No. 5 10.) Although Plaintiff disputes that Defendant ceased all collection efforts by that 6 time, he fails to provide any evidence to the contrary. Therefore, the Court grants 7 Defendant’s motion for summary judgment on this aspect of Plaintiff’s Rosenthal Act 8 claim. 9 D. 10 Consumer Credit Reporting Agencies Act (“CCRAA”) Plaintiff’s second claim is for violation of the CCRAA. Specifically, Plaintiff 11 alleges Defendant “violated the CCRAA by furnishing information to a consumer credit 12 reporting agency that [it] knew or should have known was incomplete or inaccurate.” 13 (Compl. ¶ 31.) Defendant argues it is entitled to summary judgment on this claim 14 because it “had no knowledge, and no reasonable basis on which it ‘should have 15 known,’ that Loans 7, 9 and 10 were obtained without Plaintiff’s authorization until it 16 received his identity theft affidavit and police report on March 13, 2015.” (Mem. of P. 17 & A. in Supp. of Mot. at 13.) However, as stated above, there is evidence Plaintiff 18 disputed his responsibility for the Loans as early as April 29, 2005, which was before 19 Defendant referred the Loans to the credit reporting agencies. (Golden Decl., Ex. 15.) 20 In light of this evidence, Defendant is not entitled to summary judgment on Plaintiff’s 21 CCRAA claim. 22 E. Identity Theft Act 23 Plaintiff’s third claim alleges Defendant violated the Identity Theft Act. This Act 24 provides, “A person may bring an action against a claimant to establish that the person 25 is a victim of identity theft in connection with the claimant’s claim against that 26 person.” Cal. Civ. Code § 1798.93(a). Defendant argues it is not a “claimant” under 27 the Act, therefore it is entitled to summary judgment on this claim. 28 -9- 15cv1818 1 The Identity Theft Act defines “claimant” as “a person who has or purports to 2 have a claim for money or an interest in property in connection with a transaction 3 procured through identity theft.” Cal. Civ. Code § 1798.92(a). Defendant argues it is 4 not a “claimant” for purposes of this claim because it “accepted Plaintiff’s claim of 5 identity theft and removed him from the loans at issue following its investigation of his 6 claim.” (Mem. of P. & A. in Supp. of Mot. at 14.) Plaintiff correctly points out that 7 these facts do not mean Defendant is no longer a “claimant” under the statute. 8 Defendant still has an interest in the Loans, by which it maintains its status as a 9 “claimant.” What Defendant does not have, however, is a claim against Plaintiff on 10 Loans 7, 9 and 10, which is a prerequisite for an identity theft claim. See Cal. Civ. 11 Code § 1798.93(a) (“A person may bring an action against a claimant to establish that 12 the person is a victim of identity theft in connection with the claimant’s claim against 13 that person.”) (emphasis added). The parties do not dispute Defendant no longer has 14 a claim against Plaintiff on Loans 7, 9 and 10, and thus, with respect to those Loans, the 15 Court grants Defendant’s motion. 16 The parties also do not dispute Defendant does have a claim against Plaintiff on 17 Loan 6. Plaintiff argues that claim warrants denial of Defendant’s motion with respect 18 to that Loan, while Defendant asserts Loan 6 is not at issue in this case. 19 The Complaint certainly supports Defendant’s assertion. There, Plaintiff 20 complained that only three loans were obtained without his knowledge or authorization. 21 (Compl. ¶ 10.) Plaintiff’s deposition testimony also supports Defendant’s assertion. 22 There, Plaintiff testified he gave Ms. Matthews permission to sign his name on the 23 application for Loan 6. (Decl. of Debbie P. Kirkpatrick in Supp. of Mot. (“Kirkpatrick 24 Decl.”), Ex. A at 25:22-24.) 25 Although Plaintiff does not expressly repudiate the allegations in the Complaint 26 or his deposition testimony, he now disputes he is liable for Loan 6. (See Griffin Decl. 27 ¶ 12.) Specifically, he states: 28 I consider [Loan 6] to be part of this case and dispute being liable for it. In repeated conversations I had with Defendant they always told me they - 10 - 15cv1818 1 2 3 4 5 6 had a power of attorney with my name yet they never provided me this copy of the power of attorney. If it was mailed to me I do not recall receiving it until after this case was filed. It was not until after this lawsuit was filed an in discovery I first saw the power of attorney. If Defendant had been forthright about the power of attorney only applying to leases I would have always disputed the first loan. But because Defendant misled me I took their word regarding the power of attorney. I now know that the power of attorney does not apply to any student loans. I have also learned that my name was not properly signed on the first loan pursuant to the power of attorney. 7 (Id.) Plaintiff relies on this statement as evidence that there is a genuine issue of 8 material fact such that summary judgment on this claim is unwarranted. 9 The problem with Plaintiff’s position, however, is it contradicts both his 10 Complaint and his prior deposition testimony. “‘The general rule in the Ninth Circuit 11 is that a party cannot create an issue of fact by an affidavit contradicting his prior 12 deposition testimony.’” Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) 13 (quoting Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009)). As noted 14 in Yeager, the “sham affidavit rule prevents ‘a party who has been examined at length 15 on deposition’ from ‘rais[ing] an issue of fact simply by submitting an affidavit 16 contradicting his own prior testimony,’ which ‘would greatly diminish the utility of 17 summary judgment as a procedure for screening out sham issues of fact.’” Id. (quoting 18 Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991)). To trigger the sham 19 affidavit rule, the district court “must make a factual determination that the 20 contradiction is a sham, and the ‘inconsistency between a party's deposition testimony 21 and subsequent affidavit must be clear and unambiguous to justify striking the 22 affidavit.’” Id. (quoting Kennedy, 952 F.2d at 998-99.) 23 Here, the Court has no hesitation in determining that the contradiction is a sham. 24 The Complaint references only three disputed loans,5 and Plaintiff testified that he gave 25 Ms. Matthews permission to sign his name on the application for Loan 6. This pleading 26 27 5 The Court notes Plaintiff never moved to amend his Complaint to conform to his newfound belief about Loan 6 despite Defendant’s discovery responsesin January 28 2016, which indicated Defendant would produce the Power of Attorney. (Golden Decl., Ex. 5.) - 11 - 15cv1818 1 and testimony are consistent with other evidence in this case. (See Golden Decl., Ex. 2 15) (documenting 4/29/05 call from Plaintiff to Defendant in which he alleged his 3 signature on three loans was forged, 9/28/05 call from Plaintiff to Defendant in which 4 he stated he co-signed for first loan only); (Golden Decl., Exs. 6, 7) (letters from 5 Defendant to Plaintiff confirming his claim of identity theft on three loans). 6 Furthermore, Plaintiff’s explanation for why he now disputes Loan 6, namely his 7 recent review of the Power of Attorney, is not credible. Plaintiff suggests he only 8 recently received the Power of Attorney from Defendant, and that was the first time he 9 saw the document. (Griffin Decl. ¶ 12.) However, Plaintiff does not dispute he signed 10 the Power of Attorney on October 8, 2003, before a notary public, (Dillon Decl., Ex. B), 11 and thus he must have seen it prior to Defendant’s document production in this case. 12 Although seeing the document in the context of this case may have led to some new 13 theories about its legal effect, the document itself has not changed. Plaintiff’s reliance 14 on the Power of Attorney as the basis for his newfound dispute does not change the 15 terms of that document, which Plaintiff saw and agreed to nearly thirteen years ago on 16 October 8, 2003. 17 Given the evidence, the Court concludes the contradiction over Loan 6 is a sham, 18 and does not raise a genuine issue of material fact. Accordingly, Defendant is entitled 19 to summary judgment on the entirety of Plaintiff’s Identity Theft claim. 20 F. TCPA 21 The final claim at issue here is Plaintiff’s claim for violation of the TCPA. 22 Defendant argues it is entitled to summary judgment on this claim because there is no 23 evidence Defendant used an autodialer to make calls to Plaintiff’s 8233 number. 24 Defendant also argues Plaintiff’s 8143 number was a landline. 25 On the 8143 number, Plaintiff disputes that it was a landline. (Griffin Decl. ¶ 26 14.) Therefore, Defendant is not entitled to summary judgment on the TCPA claim for 27 any calls placed to the 8143 number. 28 - 12 - 15cv1818 1 With respect to the 8233 number, Plaintiff does not dispute he has no evidence 2 of any prerecorded or artificial voice messages from NSI, or that NSI did not use an 3 automated dialer to call the 8233 number. (Def.’s Statement of Undisputed Facts in 4 Supp. of Reply to Opp’n to Mot., Fact Nos. 20-21.) Therefore, Defendant is entitled to 5 summary judgment on the TCPA claim for any calls placed to the 8233 number. 6 III. 7 CONCLUSION AND ORDER 8 For these reasons, the Court grants in part and denies in part Defendant’s motion 9 for summary judgment. Specifically, the Court grants the motion as to (1) Plaintiff’s 10 claim that Defendant violated the Rosenthal Act, California Civil Code § 1788.18, (2) 11 Plaintiff’s claim for violation of the Identity Theft Act, and (3) Plaintiff’s TCPA claim 12 based on any calls placed to the 8233 number. As to all other claims, Defendant’s 13 motion is denied. 14 IT IS SO ORDERED. 15 DATED: September 30, 2016 16 17 18 HON. DANA M. SABRAW United States District Judge 19 20 21 22 23 24 25 26 27 28 - 13 - 15cv1818
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