Page 2Slip Copy, 2013 WL 105257 (D.Ariz.)
(Cite as: 2013 WL 105257 (D.Ariz.))
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
On January 27, 2010, a California entity calledAsia Economic Institute, LLC (“AEI”) and its princi- pals, Mobrez and his partner Iliana Llaneras, broughta lawsuit against Xcentric in California. Mobrez andLlaneras are California residents. The content of their lawsuit has been described in the Court's previousorders. All of the claims in that lawsuit were eventu-ally dismissed.
Critical to the instant motion, a series of tele- phone calls took place in 2009 between Mobrez andMagedson. (
¶ 7.) Mobrez called Magedson re-garding complaints that had been posted about AEIon the Ripoff Report. (
¶ 9.) Xcentric used anautomatic system for incoming calls, in which thecaller would press a certain number to reach a givendepartment identified by the system. (
¶ 10.) Tospeak with the editor, Magedson, the caller would press “5.” (
¶¶ 10–12.) As soon as the call wasconnected, Xcentric had a recording system thatautomatically began recording the call. (
¶ 13.)Mobrez placed several calls to Magedson duringApril and May of 2009. (
On July 18, 2011, Xcentric filed a Complaint inthis Court, bringing claims for malicious prosecutionand aiding and abetting tortious conduct against AEI,its attorneys, Mobrez, and Llaneras (Doc. 1). Xcen-tric then amended its Complaint on March 16, 2012.(Doc. 55.) Mobrez has counterclaimed against Xcen-tric for violating California's wiretapping law by se-cretly recording incoming calls. (Docs.109, 147.)
I. LEGAL STANDARD
Summary judgment is appropriate if the evi-dence, viewed in the light most favorable to the non-moving party, demonstrates “that there is no genuinedispute as to any material fact and the movant is enti-tled to judgment as a matter of law.”Fed.R.Civ.P.56(a). Substantive law determines which facts arematerial and “[o]nly disputes over facts that mightaffect the outcome of the suit under the governinglaw will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc.,
477 U.S.242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Afact issue is genuine ‘if the evidence is such that areasonable jury could return a verdict for the non-moving party.’ “
Villiarimo v. Aloha Island Air, Inc.,
281 F.3d 1054, 1061 (9th Cir.2002)(quoting
477 U.S. at 248).Thus, the nonmoving party must show that the genuine factual issues “ ‘can be resolved only by a finder of fact because they mayreasonably be resolved in favor of either party.’ “
Cal. Architectural Bldg. Prods., Inc. v. FranciscanCeramics, Inc.,
818 F.2d 1466, 1468 (9th Cir.1987) (quoting
477 U.S. at 250).
“A party opposing a properly supportedsummary judgment motion must set forth specificfacts demonstrating a genuine issue for trial.”
Whitaker v. Pima Cnty.,
640 F.Supp.2d 1095, 1100(D.Ariz.2009). This rule applies equally to pro selitigants, who are given significant leeway in other areas, but “are bound by the rules of procedure.”
Ghazali v. Moran,
46 F.3d 52, 54 (9th Cir.1995).Mere allegation and speculation are not sufficient tocreate a factual dispute for purposes of summary judgment.
Witherow v. Paff,
52 F.3d 264, 266 (9thCir.1995)(per curiam);
see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586– 87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)(the non-moving party “ ‘must do more than simply show thatthere is some metaphysical doubt as to the materialfacts' ”).
There is no genuine dispute as to the factual ba-sis supporting Mobrez's counterclaim. Xcentricagrees that it recorded a series of calls without in-forming Mobrez. The remaining question is a legalone—does California or Arizona law apply to therecordings in question? On one hand,Section 632 of the California Penal Codemakes it a crime to “inten-tionally and without the consent of all parties to aconfidential communication, by means of any elec-tronic amplifying or recording device, eavesdrop[ ]upon or record[ ] the confidential communication.”Section 637.2 creates a civil action for a person in- jured by§ 632.
Assuming, therefore, that the Mo- brez intended his call to be confidential, the secretrecording of the call appears to violate§ 632.
See Kearney v. Salomon Smith Barney, Inc.,
39 Cal.4th95, 45 Cal.Rptr.3d 730, 137 P.3d 914, 936(Cal.2006).
FN3.“Any person who has been injured bya violation of this chapter may bring an ac-tion against the person who committed theviolation for the greater of the followingamounts: (1) Five thousand dollars ($5,000)