Jaime Derderian v. Sw & Pac. Specialty Finance , 673 F. App'x 736 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 23 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAIME LEA DERDERIAN, No. 14-56995
Plaintiff-Appellant, D.C. No.
3:14-cv-00412-L-KSC
v.
SOUTHWESTERN & PACIFIC MEMORANDUM*
SPECIALTY FINANCE, INC., DBA
Check ‘N Go; DOES, 1-100 inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Argued and Submitted November 8, 2016
Pasadena, California
Before: O’SCANNLAIN, FERNANDEZ, and RAWLINSON, Circuit Judges.
Jaime Lea Derderian appeals from the district court’s grant of summary
judgment in favor of Southwestern & Pacific Specialty Finance, Inc.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(“Southwestern”). As the facts are known to the parties, we repeat them only as
necessary to explain our decision.
I
We are satisfied that there is no genuine factual dispute that Southwestern
extended firm offers of credit to Derderian in connection with its receipt of her
consumer report in September 2012 and March 2013. See 15 U.S.C.
§ 1681b(c)(1)(B).
A
The district court did not abuse its discretion in considering the declaration
of Yanjue Li. See S.E.C. v. Phan, 500 F.3d 895, 912 (9th Cir. 2007) (“A district
court’s refusal to exclude evidence in its consideration of summary judgment is
reviewed for an abuse of discretion and warrants reversal only when the
evidentiary ruling was manifestly erroneous and prejudicial.” (emphasis omitted)
(internal quotation marks omitted)). Li’s declaration was based on information she
learned by personally reviewing her employer’s business records, and the
substance of that declaration could be admitted at trial under the business-records
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exception to hearsay.1 See Fed. R. Evid. 803(6). The district court did not abuse
its discretion in considering the declaration at the summary judgment stage, even if
it was not presented in an admissible form at that stage. See Fed. R. Civ. P.
56(c)(4); Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003); Hughes v.
United States, 953 F.2d 531, 543 (9th Cir. 1992).
B
Li’s declaration provided uncontradicted evidence that firm offers of credit
were sent to Derderian in both December 2012 and May 2013.
Derderian’s statement that she does “not recall” receiving the mailers
described by Li is not enough to create a genuine dispute with Southwestern’s
evidence that the mailers were indeed sent to her. See, e.g., McIndoe v. Huntington
Ingalls Inc., 817 F.3d 1170, 1173 (9th Cir. 2016) (“If the [opposing] evidence is
merely colorable, or is not significantly probative, summary judgment may be
granted.” (internal quotation marks omitted)).
Further, there is no genuine dispute that the exemplar mailers qualify as
“firm offer[s] of credit” under the statute. See 15 U.S.C. § 1681a(l). Those mailers
1
It does not matter whether the records Li reviewed may have been given to
her company by a third party; they may be admitted as the business records of her
company even if they were generated elsewhere. See MRT Constr. Inc. v.
Hardrives, Inc., 158 F.3d 478, 483 (9th Cir. 1998).
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state that the recipient has been pre-selected to apply for a loan of up to $5,000,
and Dederian has not identified any terms within the offers that would render them
illusory. Once again, Derderian’s blind speculation that Southwestern might not
have intended to honor all of those offers is not enough to defeat summary
judgment. See McIndoe, 817 F.3d at 1173.
C
Finally, there is no genuine dispute that these offers were made “in
connection with” Southwestern’s receipt of Derderian’s consumer report. 15
U.S.C. § 1681b(c)(1). Li declared that each offer was sent to Derderian “as a result
of” Southwestern obtaining her consumer report as part of a promotional pre-
screening process. The statute does not contain any requirement that offers must
be sent within a certain time period, and Derderian does not cite any legal authority
in support of her notion that the company delayed too long in extending offers to
her. And even if there were some implicit timing requirement, Southwestern’s
alleged failure to observe such a novel and unspoken requirement could not have
been “willful,” as required for Derderian’s claim brought under § 1681n. See
Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 68–70 (2007).
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II
We do not consider Derderian’s claim that Southwestern received
impermissible portions of her consumer report, in violation of 15 U.S.C.
§ 1681b(c)(2), because she failed to allege such violation in her complaint, and
instead raised the issue for the first time in response to Southwestern’s motion for
summary judgment. See Trishan Air, Inc. v. Fed. Ins. Co., 635 F.3d 422, 435 &
n.19 (9th Cir. 2011).
III
Finally, Derderian has waived any challenge to the district court’s denial of
her motion for leave to amend her complaint by failing to argue that issue in her
opening brief. See Autotel v. Nev. Bell Tel. Co., 697 F.3d 846, 852 n.3 (9th Cir.
2012).
AFFIRMED.
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