Opinion
21-56038
10-27-2022
BEHESHTA MAHBOOB, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. EDUCATIONAL CREDIT MANAGEMENT CORPORATION, Defendant-Appellee.
NOT FOR PUBLICATION
Argued and Submitted October 19, 2022 Pasadena, California
Appeal from the United States District Court for the Southern District of California No. 3:15-cv-00628-TWR-AGS Todd Robinson, District Judge, Presiding
Before: WATFORD and HURWITZ, Circuit Judges, and VITALIANO, District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
MEMORANDUM
Beheshta Mahboob appeals the district court's dismissal of her action against Educational Credit Management Corporation ("ECMC") for allegedly violating California's Invasion of Privacy Act ("CIPA"). Cal. Penal Code § 630 et seq. We affirm.
1. Mahboob contends that the district court abused its discretion by dismissing this action after determining that the judge initially assigned to the case lacked the authority to add Mahboob as a plaintiff. We disagree and hold that the district court properly executed this Court's mandate by revisiting the addition of Mahboob. On July 23, 2019, this Court vacated the class certification order and instructed the district court to "determine whether [A.J.] Reyes has met his burden of proving that he did not hear the recording warning. If he did hear the warning, he cannot be a member of the class as currently defined and the lawsuit should be dismissed. Lierboe [v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1023 (9th Cir. 2003)]." Before holding an evidentiary hearing to determine whether Reyes had heard the recording warning, the district court granted Reyes's motion for leave to amend the complaint to add Mahboob as a plaintiff. That order conflicted with this Court's mandate, which required the district court to dismiss the action if it found that Reyes did not hear the warning. The district court had the authority to revisit and rectify this error.
2. The district court's dismissal was also a permissible application of Lierboe, in which we vacated a class certification order after determining that the named plaintiff lacked a valid claim at the outset of the litigation. 350 F.3d at 1023. We then concluded that further proceedings to allow the substitution or intervention of another named plaintiff would be improper and remanded with instructions to dismiss. Id. We have subsequently reaffirmed the principle articulated in Lierboe. See, e.g., NEI Cont'ing &Eng'g, Inc. v. Hanson Aggregates Pac. Sw., Inc., 926 F.3d 528, 532-33 (9th Cir. 2019).
The district court determined that Reyes failed to meet his burden of showing that he did not hear the recording warning. As a result, he did not have a valid CIPA claim against ECMC at the outset of the litigation. See Kearney v. Salomon Smith Barney, Inc., 137 P.3d 914, 930 (Cal. 2006) (outlining elements of a CIPA claim). And thus, as the district court correctly observed, he "was not- and had never been-a member of the putative class." These circumstances are analogous to those in Lierboe, and the district court did not err in relying on Lierboe to dismiss the action.
AFFIRMED.
The Honorable Eric N. Vitaliano, United States District Judge for the Eastern District of New York, sitting by designation.