                                                                            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                           NOT FOR PUBLICATION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




                                          2
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).
                                          3
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).




                                           4
                                          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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