In Pearson v. April Healthcare Grp., 2021 U.S.Dist.LEXIS 90010 (S.D.Cal. 2021), Judge Hayes granted summary judgment to a debt collector attempting to collect a medical debt despite the availability of medical insurance.
Denial of a plaintiff’s motion for partial summary judgment as to the plaintiff’s FDCPA claim is appropriate when “no mention of [the] plaintiff’s debt was conveyed at any time during” “telephone messages left with persons at [the] plaintiff’s place of employment” because “these messages were not communications for purposes of the FDCPA . . . .” Martin v. L. Offs. of John F. Edwards, No. 09cv0177 JAH(POR), 2011 U.S. Dist. LEXIS 162429, 2011 WL 13177280, at *5 (S.D. Cal. Feb. 16, 2011). In addition, a “[d]efendant is entitled to judgment as to [the plaintiff’s 15 USC § 1692e(11)] claim” when a voicemail “left for [the] [p]laintiff [ ], which merely included the caller’s name and asked for a return call, d[id] not convey, directly or even indirectly, any information regarding the debt owed.” Koby v. ARS Nat. Servs., Inc., No. 09cv0780 JAH (JMA), 2010 U.S. Dist. LEXIS 47205, 2010 WL 1438763, at *4 (S.D. Cal. Mar. 29, 2010). In this case, the evidence in the record shows that Plaintiff received at least three calls from Defendant ARS in September 2019. See Pl. Decl. ¶ 46, ECF No. 54-2 at 6. A phone number with a 920 area code appeared on Plaintiff’s phone which Plaintiff did not recognize. See Ex. Q to Felipe Decl., ECF No. 76-4 at 6. Plaintiff did not know the identity of the caller and did not answer any of the calls because she suspected the caller to be a telemarketer. See id.; Pl.’s Resp. to Def. ARS’s SSUMF ¶¶ 98-99, ECF No. 80-1 at 2. On September 19, 2019, Plaintiff called the phone number back to identify the caller, identified the caller as Defendant ARS, and instructed Defendant ARS to stop calling her. See id. ¶¶ 100-02, 104, ECF No. 80-1 at 2-3. After the September 19, 2019 call, Defendant ARS “stopped calling and ceased all collection efforts on Plaintiff.” Id. ¶ 103, ECF No. 80-1 at 3. Plaintiff did not recognize the phone number on display, did not know the caller’s identity, and did not know what the calls were pertaining to until she called the phone number back. Defendant ARS did not leave Plaintiff any voicemails or phone messages. Plaintiff did not discern from the unanswered calls that Defendant ARS was attempting to contact Plaintiff regarding a debt. Plaintiff was not aware of Defendant ARS’s involvement or role as a debt collector before Plaintiff called the phone number back. In this case, “information regarding a debt” was not conveyed “directly or indirectly” to Plaintiff by the receipt of unanswered calls. 15 U.S.C. § 1692a(2). An unanswered call without more is insufficient to constitute a “communication” pursuant to 15 U.S.C. § 1692a(2). Even applying a broad interpretation of the FDCPA and the least sophisticated debtor standard, the unanswered calls do not constitute a “communication” pursuant to the FDCPA under the facts of this case. 15 U.S.C. § 1692a(2). In addition, Plaintiff has failed to present evidence that Defendant ARS violated 15 U.S.C. § 1692e or 15 U.S.C. § 1692f. Plaintiff’s Motion for Summary Judgment (ECF No. 72) is denied as to Plaintiff’s first, second, and third causes of action. Federal Rule of Civil Procedure 56(f) states that “[a]fter giving notice and a reasonable time to respond, the court may [ ] grant summary judgment for a nonmovant . . . .” Fed. R. Civ. P. 56(f). “It is generally recognized that a court has the power sua sponte to grant summary [*20] judgment to a non-movant when there has been a motion but no cross-motion.” Kassbaum v. Steppenwolf Prods., Inc., 236 F.3d 487, 494 (9th Cir. 2000). “Even when there has been no cross-motion for summary judgment, a district court may enter summary judgment sua sponte against a moving party if the losing party has had a full and fair opportunity to ventilate the issues involved in the matter.” Gospel Missions of Am. v. City of Los Angeles, 328 F.3d 548, 553 (9th Cir. 2003). In other words, “where the party moving for summary judgment has had a full and fair opportunity to prove its case, but has not succeeded in doing so, a court may enter summary judgment sua sponte for the nonmoving party.” Albino v. Baca, 747 F.3d 1162, 1176 (9th Cir. 2014). In this case, Plaintiff presented facts and arguments as to why Defendant ARS violated the FDCPA in Plaintiff’s Motion for Summary Judgment against Defendant ARS. There is no dispute of material fact that Plaintiff did not answer any of the calls from Defendant ARS. The sole issue at hand was a question of law: whether the calls from Defendant ARS to Plaintiff constitute a communication pursuant to the FDCPA. Plaintiff has had “a full and fair opportunity to prove its case, but has not succeeded in doing so” because the Court has found that the calls from Defendant ARS to Plaintiff did not constitute communications pursuant to the FDCPA. Id. The Court finds it appropriate to grant summary judgment sua sponte for Defendant ARS and against Plaintiff as to Plaintiff’s first, second, and third causes of action. See e.g., Verdun v. Fid. Creditor Serv., No. 14-cv-0036-DHB, 2017 U.S. Dist. LEXIS 39918, 2017 WL 1047109, at *10 (S.D. Cal. Mar. 20, 2017) (same); Wheeler v. Credit Bureau of Santa Maria, No. 2:15-cv-02684-SVW-E, 2015 U.S. Dist. LEXIS 182286, 2015 WL 12669881, at *2 n.2 (C.D. Cal. Sept. 3, 2015) (same). Summary judgment is granted for Defendant ARS and against Plaintiff as to Plaintiff’s first, second, and third causes of action.