Pamela Chyba v. First Financial Asset Manageme

FILED
NOT FOR PUBLICATION DEC 22 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAMELA CHYBA, No. 14-55670
Plaintiff-Appellant, D.C. No. 3:12-cv-01721-BEN-
WVG
v.
FIRST FINANCIAL ASSET MEMORANDUM*
MANAGEMENT, INC., AKA FFAM,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Pamela Chyba appeals pro se from the district court’s summary judgment in
her action alleging federal and state law claims. We have jurisdiction under 28
U.S.C. § 1291. We review de novo. T.W. Elec. Serv., Inc., v. Pac. Elec.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Contractors Ass’n, 809 F.2d 626, 629 (9th Cir. 1987). We may affirm on any basis
supported by the record. Newton v. Diamond, 388 F.3d 1189, 1192 (9th Cir.
2004). We affirm.
The district court properly granted summary judgment on Chyba’s
Telephone Consumer Protection Act (“TCPA”) claim because Chyba failed to raise
a genuine dispute of material fact as to whether she provided prior express consent
to Enterprise, for whom First Financial Asset Management (“FFAM”) was acting
as a third party collector. See 47 U.S.C. § 227(b)(1)(A)(iii) (prohibiting use of an
automatic telephone dialing system or an artificial or prerecorded voice to make a
call to a cellular phone without prior express consent); see also Satterfield v. Simon
& Schuster, Inc., 569 F.3d 946, 953 (9th Cir. 2009) (noting that Congress
delegated the Federal Communications Commission (“FCC”) with the authority to
make rules and regulations to implement the TCPA and affording deference to the
FCC for its interpration of TCPA provisions); In re Rules & Regulations
Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C.R. 559, 564-65 ¶¶ 9-
10 (2008) (“[T]he provision of a cell phone number to a creditor, e.g., as part of a
credit application, reasonably evidences prior express consent by the cell phone
subscriber to be contacted at that number regarding the debt. . . . Calls placed by a
third party collector on behalf of that creditor are treated as if the creditor itself
2 14-55670
placed the call.”).
The district court properly granted summary judgment on Chyba’s
California Fair Debt Collection Practices Act claim because Chyba failed to raise a
genuine dispute of material fact as to whether FFAM violated any provision of the
federal Fair Debt Collection Practices Act. See Cal. Civ. Code § 1788.17(incorporating by reference the prohibitions in the federal Fair Debt Collection
Practices Act, 15 U.S.C. §§ 1692b-1692j); see also 15 U.S.C. § 1692d(5)
(prohibiting a debt collector from ringing a telephone or engaging in a telephone
conversation “repeatedly or continuously with intent to annoy, abuse, or harass any
person at the called number”); T.W. Elec. Serv., Inc., 809 F.2d at 630 (“[T]he
nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56,
specific facts showing that there is a genuine issue for trial.” (emphasis, citation,
and internal quotation marks omitted)).
The district court did not abuse its discretion in admitting the FFAM
Director of Compliance’s declaration. See Nev. Dep’t of Corr. v. Greene, 648 F.3d
1014, 1018-19 (9th Cir. 2011) (setting forth standard of review and holding that
“[u]nfounded speculation as to an affiant’s alleged lack of personal knowledge of
the events in his affidavit does not render it inadmissible”).
We reject as without merit Chyba’s contention that the district court erred by
3 14-55670
failing to hold an evidentiary hearing.
AFFIRMED.
4 14-55670