Timothy Moser v. Encore Capital Group, Incorporated

FILED
NOT FOR PUBLICATION NOV 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TIMOTHY W. MOSER, No. 10-55236
Plaintiff - Appellant, D.C. No. 3:04-cv-02085-JLS-
WMC
v.
ENCORE CAPITAL GROUP, AMENDED MEMORANDUM *
INCORPORATED, a Delaware
corporation; et al.,
Defendants - Appellees.
TIMOTHY W. MOSER, an individual, No. 10-55238
Plaintiff - Appellant, D.C. No. 3:05-cv-01742-JLS-
WMC
v.
TRIARC COMPANY, INC., a Delaware
corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted October 11, 2011
Pasadena, California
Before: PREGERSON and D.W. NELSON, Circuit Judges, and LYNN, District
Judge.**
Timothy W. Moser (“Moser”) appeals the district court’s grant of summary
judgment for Encore Capital Group (“Encore), Triarc Company (“Triarc”) and
individual appellees Carl C. Gregory, III (“Gregory”), Barry Barkley (“Barkley”),
Brandon Black (“Black”), Alexander Lemond (“Lemond”) and Eric D. Kogan
(“Kogan”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and
remand the district court’s determination that Moser’s contractual damages are not
cognizable, but affirm in all other respects.
We review a grant of summary judgment de novo. Bamonte v. City of Mesa,
598 F.3d 1217, 1220 (9th Cir. 2010). We consider “whether, with the evidence
viewed in the light most favorable to the non-moving party, there are no genuine
issues of material fact, so that the moving part[ies are] entitled to judgment as a
matter of law.” Id. (internal quotations and citations omitted). We may affirm the
district court on any basis supported by the record. Satey v. JPMorgan Chase &
Co., 521 F.3d 1087, 1091 (9th Cir. 2008).
**
The Honorable Barbara M. G. Lynn, District Judge for the U.S.
District Court for Northern Texas, sitting by designation.
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The district court erred in relying on new evidence submitted by Encore
while rejecting rebuttal evidence submitted by Moser. Provenz v. Miller, 102 F.3d
1478, 1483 (9th Cir. 1996). We have considered Moser’s rebuttal evidence on
appeal.
The registration statement containing the disclosure was published on or
before September 26, 2003. See Kanarek v. Bugliosi, 166 Cal. Rptr. 526, 529–30
(Cal. Ct. App. 1980). Moser’s defamation claims against Encore, Gregory,
Barkley, Black, Lemond, Kogan and Brian Schorr (“Schorr”) are time-barred. Cal.
Civ. Proc. Code § 340(c); Shively v. Bozanich, 7 Cal. Rptr. 3d 576, 586 (Cal.
2003). Moser also has failed to meet his weighty burden of offering substantial
and credible evidence that a conspiracy existed. Choate v. County of Orange, 103
Cal. Rptr. 2d 339, 353 (Cal. Ct. App. 2000); Kidron v. Movie Acquisition Corp., 47
Cal. Rptr. 2d 752, 758 (Cal. Ct. App. 1995).
The district court properly applied California’s Uniform Single Publication
Act to bar Moser’s other tort claims against Encore, Gregory, Barkley, Black,
Lemond, Kogan and Schorr. Cal. Civ. Code § 3425.3; Strick v. Super. Court, 192
Cal. Rptr. 314, 319–20 (Cal. Ct. App. 1983), superceded on other grounds by Cal.
Civ. Proc.Code § 437c(f). Moser’s claims for intentional interference with contract
and intentional and negligent infliction of emotional distress are untimely, to the
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extent they are based on the publication of the disclosure. Strick, 192 Cal. Rptr. at
319–20.
The district court properly applied the litigation privilege to statements made
at the January 20, 2005 meeting. Silberg v. Anderson, 266 Cal. Rptr. 638, 641–42
(Cal. 1990); Cal. Civ. Code § 47(b)(2).
The district court erred in finding that Moser’s contractual damages were not
cognizable. Moser has pointed to some ambiguity as to whether the settlement
agreement contained a conditional release. Solis v. Kirkwood Resort Co., 114 Cal.
Rptr. 2d 265, 269 (Cal. Ct. App. 2001); Cal. State. Auto. Ass’n Inter-Ins. Bureau v.
Superior Court, 223 Cal. Rptr. 246, 247 n.1 (Cal. Ct. App. 1986). The proper
measure of damages is closely tied to whether the release was conditional.
Therefore, we “reverse and remand to the district court in order to give [Moser] an
opportunity to present evidence as to the intention of the parties in drafting the
contract.” Trident Ctr. v. Connecticut Gen. Life Ins. Co., 847 F.2d 564, 570 (9th
Cir. 1988) (construing Pacific Gas & Electric Co. v. G.W. Thomas Drayage &
Rigging Co., 69 Cal. 2d 33, 37–38 (1968)). Moser’s declarations, even if self-
serving, contain admissible facts relevant to whether Moser’s release was
conditional and, relatedly, to the appropriate measure of damages for breach of the
agreement. United States v. Shumway, 199 F.3d 1093, 1104 (9th Cir. 1999); see
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also Solis, 114 Cal. Rptr. 2d at 269 (holding that “where the extrinsic evidence . . .
is contested, an issue of fact arises”). Moser has raised a triable issue of material
fact regarding whether his contractual damages are cognizable.
The district court did not err with respect to rescission. Moser did not
identify a statutory basis for rescission. Cal. Civ. Code § 1689. He also failed,
“upon discovering the facts which entitle him to rescind,” to give notice of
rescission and to restore the money Encore paid him pursuant to the settlement
agreement. Cal. Civ. Code § 1691; see also Myerchin v. Family Benefits, Inc., 76
Cal. Rptr. 3d 816, 822–23 (Cal. Ct. App. 2008) (rejecting rescission after plaintiff
received settlement funds, continued with litigation and did not return money),
overruled on other grounds by Vill. Northridge Homeowners Ass’n v. State Farm
Fire & Cas. Co., 114 Cal. Rptr. 3d 280 (Cal. 2010). Moser also did not seek
rescission in his complaint. Cal. Civ. Code § 1691.
The district court did not err in granting summary judgment for Schorr. As
discussed, Moser’s defamation claim against Schorr was untimely. Kanarek, 166
Cal. Rptr. at 529–30. Moser’s claims for intentional interference with contract and
intentional infliction of emotional distress merge with the defamation claim and are
untimely. Cal. Civ. Proc. Code § 340(c); Shively v. Bozanich, 7 Cal. Rptr. 3d 576,
586 (Cal. 2003). Moser also has failed to prove a conspiracy. Choate, 103 Cal.
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Rptr. 2d ar 353; Kidron, 47 Cal. Rptr. 2d at 758. Finally, Moser’s claims cannot be
based on the January 20, 2005 meeting, as Schorr was not there, and Terry Bird did
not represent Schorr.
The district court erred in finding Moser’s claims against Triarc time-barred.
Because Moser did not sue Triarc for defamation, his other tort claims do not
merge into a defamation claim. A two-year statute of limitations applies to
Moser’s timely claims against Triarc. Cal. Code Civ. Proc. §§ 335.1, 339.
However, the district court properly granted summary judgment for Triarc. With
respect to intentional interference with contract, Moser has failed to show that
Triarc took intentional acts to induce breach. Family Home & Fin. Ctr., Inc. v.
Fed. Home Loan Mortg. Corp., 525 F.3d 822, 825 (9th Cir. 2008). Additionally,
Moser has not shown proximate causation. Allen v. Powell, 56 Cal. Rptr. 715, 718
(Cal. Ct. App. 1967); Mayes v. Bryan, 44 Cal. Rptr. 3d 14, 25 (Cal. Ct. App. 2006)
(holding that a “substantial factor” creates a force that is in continuous and active
operation up to the time of the harm). Nor can Moser show that the settlement
agreement would have been performed, but for Triarc’s approval of the disclosure.
Dryden v. Tri-Valley Growers, 135 Cal. Rptr. 720, 725 (Cal. Ct. App. 1977). With
respect to the intentional infliction of emotional distress claim, Moser has not
shown that Triarc engaged in outrageous conduct. Corale v. Bennett, 567 F.3d
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554, 571 (9th Cir. 2009); Potter v. Firestone Tire & Rubber Co., 25 Cal. Rptr. 2d
550, 574 (Cal. 1993) (holding outrageous conduct exceeds all bounds of that
usually tolerated in a civilized community). Moser also has failed to show that he
suffered severe emotional distress. Girard v. Ball, 178 Cal. Rptr. 406, 414 (Cal.
Ct. App. 1981) (holding severe emotional distress is of “such substantial quantity
or enduring quality that no reasonable man in a civilized society should be
expected to endure it”).
AFFIRMED in part and REVERSED and REMANDED for further
proceedings. Each party shall bear their own costs on appeal.
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