U.D. Registry v. California
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Filed 11/29/06 * CERTIFIED FOR PARTIAL PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE THE U.D. REGISTRY, INC., Plaintiff and Appellant, B179653 & B186012 (Los Angeles County Super. Ct. No. BC287331) v. THE STATE OF CALIFORNIA et al., ORDERS MODIFYING OPINION AND DENYING REHEARING PETITION Defendants and Appellants. [NO CHANGE IN JUDGMENT] The opinion filed on October 30, 2006, is modified as follows: 1. On page 2, line 14, change defendants from disclosing to defendants from enforcing section 1785.11.2 as to 2. On page 4, line 2, replace Equinox with Equifax * Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part IV. 3. On page 25, line 9, change invalid its face to invalid on its face 4. On page 27, line 9, replace to freeze release with to freeze the release of 5. On page 30, line 22, replace not merely to of plaintiff with not merely to plaintiff 6. On page 31, line 11, change plaintiff s opening brief to defendants opening brief 7. On page 29, after the conclusion of the first paragraph and above the notation to the Reporter of Decisions concerning the unpublished portion of the opinion, insert the following as a new paragraph: For the first time in the rehearing petition, plaintiff argues the requirement recognized in Tobe v. City of Santa Ana, supra, 9 Cal.4th at page 1084 that a party mounting a facial attack on a statute demonstrate the challenged provision presents a present total and fatal conflict with the applicable constitutional prohibition does not apply to an overbreadth question in the free expression context. Plaintiff s analysis is incorrect. (Secretary of State of Md. v. Joseph H. Munson Co., Inc. (1984) 467 U.S. 947, 967-968 [ Where, as here, a statute imposes a direct restriction on protected First Amendment activity, and where the defect in the statute is that the means chosen to accomplish the State s objectives are too imprecise, so that in all its applications the statute creates an unnecessary risk of chilling free speech, the statute is properly subject to facial attack. ]; People v. Stanistreet (2002) 29 Cal.4th 497, 511, fn. 5.) Moreover, as 2 noted, insufficient evidence was presented to support to support the trial court s facial overbreadth conclusions. The evidence before the trial court related to plaintiff s credit reports. There was no evidence as to industry wide practices or other credit reporting agency s reports. Plaintiff presented no evidence as to whether section 1785.11.2 impinges upon the free expression rights of a substantial portion of those credit reporting agencies to whom it applies. (See American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 348.) 8. On page 31, line 10, delete the entire paragraph. In its place, insert as a new paragraph: We need not address plaintiff s equal protection argument. As it relates to the as applied issue, we have ruled in plaintiff s favor and the issue is moot. As to the facial challenge, the equal protection issue changes nothing. Plaintiff has failed to comply with the requirement recognized in Tobe v. City of Santa Ana, supra, 9 Cal.4th at page 1084 that it demonstrate that section 1785.11.2 violates equal protection principles in all circumstances. The rehearing petition is denied. ________________________________ TURNER, P. J. _________________________________ KRIEGLER, J. 3
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