Diana Toroussian v. Asset Acceptance LLC et al, No. 2:2012cv03519 - Document 57 (C.D. Cal. 2013)
Court Description: ORDER GRANTING DEFENDANT MIDLAND CREDIT MANAGEMENT INC.S MOTION FOR SUMMARY JUDGMENT 43 with one exception. The court does not reach Plaintiffs remaining claim for declaratory and injunctive relief under California Civil Code Section 1798.93(c). The court declines to exercise supplemental jurisdiction over that lone remaining state law claim by Judge Dean D. Pregerson. (lc).Modified on 10/4/2013. (lc). Modified on 10/4/2013 (lc).
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Diana Toroussian v. Asset Acceptance LLC et al Doc. 57 1 2 3 O 4 NO JS-6 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DIANA TOROUSSIAN, 12 Plaintiff, 13 14 15 16 17 v. ASSET ACCEPTANCE, LLC, a Delaware Limited Liability Company; MIDLAND CREDIT MANAGEMENT INC., a Kansas corporation, Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-03519 DDP (AGRx) ORDER GRANTING DEFENDANT MIDLAND CREDIT MANAGEMENT INC.’S MOTION FOR SUMMARY JUDGMENT [Dkt. No 43] 18 19 Presently before the court is Defendant Midland Credit 20 Management Inc. (“Midland”)’s Motion for Summary Judgment. 21 considered the submissions of the parties and heard oral argument, 22 the court grants the motion and adopts the following order.1 23 I. 24 25 Having Background On September 11, 2008, someone opened an HSBC credit card in Plaintiff’s name. (Declaration of Rachelle Boire In Support of 26 27 28 1 While the court has considered Plaintiff’s opposition to the motion, the court notes that Plaintiff violated both the local rules of this district and the standing order of this court by failing to timely file an opposition, filing an overlong brief, and failing to provide mandatory chambers copies of any paper. Dockets.Justia.com 1 Motion, Ex. D.) 2 security number, address, and driver license information to open 3 the account. 4 The applicant used Plaintiff’s name, social Id. Approximately two years later, on November 10, 2010, Plaintiff 5 filed an identity theft victim report with the Los Angeles Police 6 Department. 7 Plaintiff’s report was motivated by her discovery of fraudulent 8 accounts, including the HSBC account, on her credit report. 9 ¶¶ 4-5.) (Declaration of Diana Toroussian in Opposition ¶ 4.) (Id. According to Plaintiff’s declaration, she neither applied 10 for the HSBC account nor received any statements or information 11 regarding the account. 12 (Id. ¶ 5.) On January 20, 2011, Plaintiff filed an identity theft 13 victim’s complaint with the Federal Trade Commission and filled out 14 a notarized affidavit of fraud. 15 fraud report to the three credit reporting agencies. 16 By March 2011, the credit bureaus had deleted the HSBC account from 17 Plaintiff’s credit report. 18 (Id. ¶¶ 7-8.) Plaintiff sent the (Id. ¶ 9.) (Id. ¶10.) On June 8, 2011, Defendant Midland acquired the HSBC account. 19 (Boire Decl. ¶ 4.) 20 identifying Midland as “a debt collection company” and the servicer 21 of “your HSBC Bank Nevada, N.A. account,” and offering to settle 22 the outstanding balance. On June 15, Midland sent Plaintiff a letter (Id., Ex. E). 23 On July 15, 2011, Plaintiff sent Midland a letter requesting 24 that Midland investigate and provide proof of the validity of the 25 HSBC debt. 26 letter did not mention that Plaintiff was a victim of identity 27 theft. 28 listing payment options. (Boire Decl., Ex. F; Toroussian Decl. ¶ 14.) The On August 11, Midland sent another letter to Plaintiff (Boire Decl., Ex. G.) 2 1 On October 11, an entity called Renatus Credit (“Renatus”) 2 sent Midland a letter on behalf of Plaintiff.2 3 Renatus letter, like Plaintiff’s first letter, asked Midland to 4 verify the debt. 5 disputed the account with the credit bureaus, who had verified the 6 account. 7 credit reporting. 8 October 11 letter did not mention that Plaintiff was a victim of 9 identity theft. 10 (Id.) (Id.) (Id., Ex. H.) The The letter also stated that Plaintiff had The letter further accused Midland of inaccurate (Id.) Like Plaintiff’s first letter, the On October 21, Midland notified Plaintiff that it had opened 11 an investigation. 12 Ex. L.) 13 attempting to collect a debt. 14 (Declaration of Vahag Matevosian in Opposition, The letter reiterated that Midland was a debt collector (Id.) On November 5, Renatus sent Midland a second letter. 15 Decl., Ex. I). 16 invalid debt to the credit agencies. 17 (Boire mention that Plaintiff was a victim of identity theft. 18 The letter reiterated that Midland was reporting an (Id.) The letter did not On November 10, Midland sent Plaintiff another response. 19 (Boire Decl., Ex. J.) 20 provided sufficient information for it to investigate her dispute. 21 (Id.) 22 credit bureaus as “Disputed,” and requested that Plaintiff provide 23 an explanation of the nature of her dispute, as well as supporting 24 documentation, including, in the case of alleged fraud or identity Midland stated that Plaintiff had not Midland stated that it would report the account to the 25 26 27 28 2 While the Renatus letter states that it is a follow-up to a Renatus letter of July 20, there is no evidence in the record of such a letter. 3 1 theft, a policy report, FTC fraud report, and fraud affidavit. 2 (Id.) 3 Plaintiff claims that on December 13, 2011, she sent a letter 4 to Midland stating that she was a victim of identity theft. 5 (Toroussian Decl. ¶ 21; Ex. I.) 6 supporting documents. 7 received Plaintiff’s letter. 8 9 The letter did not include any In any event, Midland claims it never (Boire Decl. ¶ 22.) Plaintiff sent a certified letter regarding the fraudulent nature of the HSBC account to Midland on February 24, 2012. 10 (Toroussian Decl. ¶ 22.) 11 account and debt” and “previous correspondences,” but did not 12 mention identity theft or include any documentation. 13 Decl., Ex. L.) 14 The letter referred to a “fraudulent (Matevosian Plaintiff’s First Amended Complaint alleges eight causes of 15 action against Midland for violations of the Fair Credit Reporting 16 Act, 15 U.S.C. § 1681s-2(b), the Fair Debt Collection Practices Act 17 (“FDCPA”), 15 U.S.C. § 1692(e) et seq., California Civil Code § 18 1798.93, California Consumer Credit Reporting Agencies Act 19 (“CCCRAA”), Cal. Civ. Code § 1785.25(a), California Rosenthal Fair 20 Debt Collection Practices Act, Cal. Civ. Code § 1788.17, and libel. 21 Midland now moves for summary judgment on all claims. 22 II. 23 Legal Standard Summary judgment is appropriate where the pleadings, 24 depositions, answers to interrogatories, and admissions on file, 25 together with the affidavits, if any, show “that there is no 26 genuine dispute as to any material fact and the movant is entitled 27 to judgment as a matter of law.” 28 seeking summary judgment bears the initial burden of informing the Fed. R. Civ. P. 56(a). 4 A party 1 court of the basis for its motion and of identifying those portions 2 of the pleadings and discovery responses that demonstrate the 3 absence of a genuine issue of material fact. 4 Catrett, 477 U.S. 317, 323 (1986). 5 the evidence must be drawn in favor of the nonmoving party. 6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). 7 If the moving party does not bear the burden of proof at trial, it 8 is entitled to summary judgment if it can demonstrate that “there 9 is an absence of evidence to support the nonmoving party’s case.” 10 11 See Celotex Corp. v. All reasonable inferences from See Celotex, 477 U.S. at 323. Once the moving party meets its burden, the burden shifts to 12 the nonmoving party opposing the motion, who must “set forth 13 specific facts showing that there is a genuine issue for trial.” 14 Anderson, 477 U.S. at 256. 15 party “fails to make a showing sufficient to establish the 16 existence of an element essential to that party’s case, and on 17 which that party will bear the burden of proof at trial.” 18 477 U.S. at 322. 19 that a reasonable jury could return a verdict for the nonmoving 20 party,” and material facts are those “that might affect the outcome 21 of the suit under the governing law.” 22 There is no genuine issue of fact “[w]here the record taken as a 23 whole could not lead a rational trier of fact to find for the non- 24 moving party.” 25 475 U.S. 574, 587 (1986). 26 Summary judgment is warranted if a Celotex, A genuine issue exists if “the evidence is such Anderson, 477 U.S. at 248. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., It is not the court’s task “to scour the record in search of a 27 genuine issue of triable fact.” 28 1278 (9th Cir. 1996). Counsel has an obligation to lay out their Keenan v. Allan, 91 F.3d 1275, 5 1 support clearly. 2 1026, 1031 (9th Cir. 2001). 3 file for evidence establishing a genuine issue of fact, where the 4 evidence is not set forth in the opposition papers with adequate 5 references so that it could conveniently be found." 6 III. Discussion 7 A. 8 9 Carmen v. San Francisco Sch. Dist., 237 F.3d The court “need not examine the entire Id. California Civil Code § 1798.93 A victim of identity theft may bring an action against a claimant with respect to the claimant’s attempt to recover on an 10 alleged debt. 11 proves that she is a victim of identity theft by a preponderance of 12 the evidence may recover actual damages, attorney’s fees, costs, 13 and equitable relief. 14 recover, a plaintiff must show that “she provided written notice to 15 the claimant that a situation of identity theft might exist, 16 including, upon written request of the claimant, a valid copy of 17 the police report . . . at least 30 days prior to . . . her filing 18 of the action.” 19 Cal. Civil Code § 1798.93(a). A plaintiff who Cal. Civil Code § 1798.93(c)(5). To so Id. (emphasis added). Plaintiff argues that she sent Midland “at least two notices” 20 of identity theft. 21 record.3 22 Plaintiff sent to Midland made no mention of identity theft. 23 Indeed, the first three letters, dated July 15, October 11, and 24 November 5, merely challenged Midland to validate the debt, without 25 so much as a mention of fraud. Plaintiff’s contention is not supported by the There is no dispute that four of the five letters The February 24, 2012 letter 26 27 28 3 Plaintiff also concedes that the first three letters were insufficient by arguing that Midland’s November 10 letter “predates Plaintiff’s notice of fraud.” (Opp. at 12) 6 1 mentioned a “fraudulent account and debt,” but did not mention 2 identity theft. 3 letter, which Midland claims it never received, stated that 4 Plaintiff was a victim of identity theft. 5 Of the five letters, only the December 13, 2011 Regardless whether Midland received the December 13 letter, 6 and even assuming that the February 24 letter’s reference to a 7 “fraudulent account” constituted notice to Midland that identity 8 theft might exist, neither letter satisfied the requirement that 9 Plaintiff provide, “upon written request of the claimant, a valid 10 copy of the police report.” Cal. Civil Code § 1793(c)(5). As 11 early as November 11, well before Plaintiff even arguably notified 12 Midland of the possibility of identity theft, Midland asked 13 Plaintiff to explain the nature of her dispute. 14 explicitly stated that it needed supporting documentation, such as, 15 in the case of “Fraud or Identity Theft: a) a copy of a police 16 report; b) Federal Trade Commission Fraud Affidavit that has been 17 filled out . . .; or (c) notarized fraud affidavit.” 18 Ex. J.) 19 submitted any supporting documentation at any point.4 Midland’s letter (Boire Decl. There is no evidence in the record that Plaintiff 20 21 4 22 23 24 25 26 27 28 Plaintiff appears to argue that she need not have submitted any documentation because she did not give notice of identity theft or fraud until after Midland requested supporting documentation. (Opp. at 12.) This argument has no merit. While in most cases, a written request for a police report regarding identity theft might not occur until there has been some suggestion that identity theft is at issue, the statute does not specify any such sequence. Furthermore, Midland’s early request for documentation was necessitated by Plaintiff’s repeated, vague, and admittedly insufficient notices. Indeed, had Midland not prompted Plaintiff for a more specific explanation with the request Plaintiff now seeks to ignore, her claim for relief under Section. 1793(c)(5) would likely have been even less colorable than that presented here. 7 1 Plaintiff appears to suggest that even if she is not entitled 2 to actual damages, she can recover a civil penalty of $30,000 under 3 1793(c)(6). 4 addition to any other damages,” if a victim of identity theft 5 establishes that (1) she provided written notice to the claimant 6 that identity theft might exist, “and explaining the basis for that 7 belief,” (2) “the claimant failed to diligently investigate . . . 8 ,” and (3) the claimant continued to pursue its claim despite facts 9 entitling the identity theft victim to relief from the claim. 10 11 Section 1793(c)(6) provides for such a penalty, “in 1793(c)(6). As an initial matter, though neither party has briefed the 12 issue, Plaintiff’s contention ignores that a civil penalty under 13 Section 1793(c)(6) is available “in addition to” the remedies of 14 Section 1793(c)(5). 15 entitled to any remedies under Section 1793(c)(5). 16 to meet the more permissive requirements of that section, Plaintiff 17 cannot possibly satisfy the stricter requirements and obtain the 18 greater relief of Section 1793(c)(6). 19 As discussed above, however, Plaintiff is not Having failed Furthermore, even if Plaintiff could recover a civil penalty 20 without making an adequate claim for actual costs, she has not made 21 the requisite showing. 22 to explain the basis for her belief that she is a victim of 23 identity theft. 24 she was such a victim in four of her five letters. 25 December 13 letter, which alone stated that Plaintiff was an 26 “identity theft victim,” provided no basis for its assertions. 27 28 Section 1793(c)(6)(A) requires a plaintiff As discussed above, Plaintiff never mentioned that Even the Nor has Plaintiff provided any evidence that Midland failed to See Cal. Civ. Code § conduct a diligent investigation. 8 1 1793(c)(6)(B). 2 needed additional information from Plaintiff to further its 3 investigation. 4 Plaintiff points to Midland’s response to an interrogatory as an 5 admission that Midland conducted no investigation, the cited 6 evidence merely reiterates that “Plaintiff[’s] failure to provide 7 [Midland] with her identity theft report has frustrated [Midland’s] 8 attempt to investigate her claim of identity theft.” 9 Decl., Ex. N) 10 Midland’s November 11 letter makes clear that it Plaintiff never provided that information. Though (Matevosian Absent any evidence that Plaintiff satisfied the requirements 11 of California Civil Code Section 1793(c)(5) and c(6), Midland is 12 entitled to summary judgment on Plaintiff’s first cause of action.5 13 B. 14 The FCRA imposes certain duties on sources that provide credit Fair Credit Reporting Act (“FCRA”) 15 information to credit reporting agencies (“CRAs”). 16 Wolpoff & Abramson, LLP, 584 F.3d 1147, 1153 (9th Cir. 2009); 15 17 U.S.C. § 1681s-2. 18 duties is triggered when reporting sources such as Midland receive 19 notice from a credit reporting agency or bureau that a consumer 20 disputes certain credit information. 21 U.S.C. § 1681s-2(b). 22 source receives notice of a dispute from the consumer himself. 23 Gorman, 584 F.3d at 1154. 24 Midland is such a source. Gorman v. A further set of Gorman, 584 F.3d at 1154; 15 These duties are not triggered, however, if a Plaintiff claims that Midland violates the duties imposed by 25 26 27 28 5 This conclusion does not affect Plaintiff’s claims for declaratory and injunctive relief under California Civil Code Section 1793.98(c)(1),(2), and (3). 9 1 15 U.S.C. § 1681s-2(b). 2 Midland failed to conduct an investigation with respect to the 3 disputed information that the CRAs provided to Midland and failed 4 to delete inaccurate information. 5 Specifically, Plaintiff alleges that See 15 U.S.C. § 1681s-2(b). Midland has introduced evidence that the credit reporting 6 agencies never notified Midland of any dispute regarding the HSBC 7 account. 8 November 10 letter is evidence that Midland did receive notice from 9 the CRAs because the letter requests information regarding (Boire Decl. ¶ 26.) Plaintiff argues that Midland’s 10 Plaintiff’s “dispute of the credit reporting of your . . . account 11 pursuant to the Fair Credit Reporting Act.” 12 Opp. at 16.) 13 reference to the FCRA cannot possibly be read to suggest that it 14 received anything from any CRA. 15 identifying the dispute was responsive to Plaintiff’s November 5 16 letter, which alleged that Midland was reporting an unverified debt 17 to the CRAs and that “FCRA Section 1681s-2(b) triggers your 18 furnisher’s liability under this section, since [Plaintiff] has 19 made her initial disputes with the credit bureaus prior to . . . 20 submission of her disputes directly to you.” 21 That Plaintiff submitted a dispute to the CRAs and to Midland 22 directly, however, has no bearing on whether the CRAs reported 23 anything to Midland. 24 (Boire Decl., Ex. J; Plaintiff’s argument has no merit. Midland’s Rather, Midland’s statement (Boire Decl., Ex. I.) See Gorman, 584 F.3d at 1154. Beyond Midland’s letter, Plaintiff cites only to her own 25 declaration, which states that “CRAs did not inform me that they 26 find my dispute to be frivolous or that they would not be 27 forwarding it to Defendant. 28 to Defendant.” As such, CRAs communicated my dispute (Toroussian Decl. ¶ 16.) 10 In other words, Plaintiff 1 argues that Midland must have received notice from the CRAs because 2 the CRAs did not tell Plaintiff that they were not going to send 3 Midland any notice. 4 in affidavits and moving papers is insufficient to raise genuine 5 issues of fact and defeat summary judgment.” 6 Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2009). 7 unsupported assertion is, therefore, inadequate to defeat Midland’s 8 motion with respect to her FCRA claims.6 9 However, “[c]onclusory, speculative testimony Soremekun v. Thrifty Plaintiff’s C. California Consumer Credit Reporting Agencies Act 10 The relevant part of the CCCRAA states that “[a] person shall 11 not furnish information on a specific transaction or experience to 12 any consumer credit reporting agency if the person knows or should 13 know the information is incomplete or inaccurate.” 14 § 1785.25(a). 15 Midland on notice that the information regarding the HSBC account 16 was inaccurate because of the “fraudulent nature” of the account. 17 (Opp. at 21-22.) 18 Cal. Civ. Code Plaintiff argues that her letters to Midland put As discussed above, however, Plaintiff’s letters were 19 extremely vague. 20 letters did no more than inform Midland that Plaintiff disputed the 21 HSBC account for some unknown reason. 22 particularly the fourth, letter might have put Midland on notice 23 that Plaintiff claimed to be a victim of identity theft, those 24 letters alone did not establish that Plaintiff was actually a Even taken at face value, Plaintiff’s first three While the fifth, and 25 6 26 27 28 The reasonableness of a credit information furnisher’s investigation of a dispute necessarily depends on the information provided by the CRA. Gorman, 584 F.3d at 1157. Absent any evidence that Midland received any information from a CRA, a reasonableness inquiry, which may be appropriate on summary judgment, is unnecessary. See id. 11 1 victim. Midland requested, but never received, any documentation 2 supporting any of Plaintiff’s claims, nor, as discussed above, is 3 there any evidence that a CRA reported a dispute to Midland.7 4 such a record, no trier of fact could find that Midland should have 5 known that Plaintiff was a victim of identity theft. On FDCPA and Rosenthal FDCPA8 6 D. 7 The FDCPA is designed to curtail abusive practices by debt 8 collectors. 9 FDCPA is “any person who uses any instrumentality of interstate 15 U.S.C. § 1692(e). A “debt collector” under the 10 commerce or the mails in any business the principal purpose of 11 which is the collection of any debts, or who regularly collects or 12 attempts to collect, directly or indirectly, debts owed or due or 13 asserted to be owed or due another.” 14 15 U.S.C. § 1692a(6). Midland argues that it does not qualify as a “debt collector” 15 because there is no evidence that its primary purpose is collecting 16 on debts owed to another, as opposed to collecting on debts Midland 17 itself owns. 18 identified itself as “a communication from a debt collector” and 19 described Midland as “a debt collection company.” 20 Ex. E.) Midland’s August 11 letter used similar language. (Id., 21 Ex. G). The July 11 letter, in which Midland requested documents 22 from Plaintiff, stated, “[T]his communication is from a debt 23 collector. The court disagrees. Midland’s June 15 letter This is an attempt to collect a debt.” (Boire Decl., (Id., Ex. J.) 24 25 26 27 7 As the Ninth Circuit explained in Gorman, the requirements of § 1785.25 and Section 1681s-2(a) of the FCRA are “nearly identical.” Gorman, 584 F.3d at 1172. Plaintiff has not, however, brought an FCRA claim under Section 1681s-2(a). 8 28 California’s Rosenthal FDCPA generally incorporates the provivisions of the federal FDCPA. Cal. Civ. Code § 1788.17. 12 1 This evidence is more than sufficient to create a triable 2 issue as to whether Midland’s primary purpose is to collect on 3 debts owed to third parties, and thus qualifies as a debt collector 4 under the FDCPA. 5 of debt collector to those who collect on behalf of others, but 6 does limit the term to those who engage in debt collection “in the 7 ordinary case of business.” 8 letters thus create a triable issue with respect to the Rosenthal 9 FDCPA as well. 10 The Rosenthal FDCPA does not limit its definition Cal. Civ. Code § 1788.2(c). Midland’s Midland also argues that Plaintiff has failed to put forth 11 any evidence that Midland attempted to collect on a “debt,” as 12 defined by the FDCPA. 13 a consumer to pay money arising out of a transaction in which the 14 money, property, insurance, or services which are the subject of 15 the transaction are primarily for personal, family, or household 16 purposes . . . .” 17 argues that, even if the HSBC account was fraudulently opened, 18 there is no evidence that the charges arising thereunder resulted 19 from consumer purchases made for personal, family, or household 20 purposes. 21 Under the FDCPA, a debt is an obligation “of 15 U.S.C. § 1692a(5) (emphasis added). Midland Neither party sufficiently addresses this question, which is a 22 close one. 23 unpublished disposition explicitly declining to address the issue, 24 that FDCPA plaintiffs who are victims of identity theft, or who 25 have other worthy collection defenses, may find it impossible to 26 document the nature of the debt incurred. 27 Dane LLC, 462 Fed. Appx. 331, 336 (4th Cir. 2012). 28 agreed, however, with a court of this circuit that “the The Fourth Circuit has recognized, albeit in an 13 Booshada v. Providence The court 1 determination of whether a debt is a consumer debt is a fact driven 2 one, and should be decided on a case-by-case basis looking at all 3 relevant factors.” 4 F. Supp. 2d 1196, 1204 (W.D. Wash. 2003) (alterations omitted). 5 Looking then, to the specific facts of this case, and even Id., citing Hansen v. Ticket Track, Inc., 280 6 taking into account the strong consumer protection policy 7 underlying the FDCPA, the court agrees that Plaintiff has not put 8 forth sufficient evidence that consumer debt is at issue. 9 The only evidence Plaintiff cites in support of her contention is 10 that the credit card linked to the disputed HSBC account was opened 11 at a retail bridal shop. 12 cases, information about the nature of fraudulently incurred 13 charges may be unavailable or ambiguous.9 14 origin of the debt may be sufficient to create a triable issue as 15 to its nature. 16 identify the fraudulent charges made in her name, let alone 17 demonstrate that they may have been incurred for personal, family, 18 or household purposes. (Opp. At 2; Boire Decl., Ex. D.) In some In such cases, the Here, however, Plaintiff has not even attempted to Thus, the record before the court in this 19 20 21 22 23 24 25 26 27 28 9 At least one court has found, in an identity theft case, that an FDCPA plaintiff failed to create an issue of fact with respect to the nature of alleged debts. In Anderson v. AFNI, Inc., an identity theft victim brought an FDCPA claim based upon fraudulent Verizon (presumably telephone) accounts. Anderson v. AFNI, Inc., No. 10-4064, 2011 WL 1808779 at *1 (E.D. Pa. May 11, 2011). The plaintiff argued that because (1) the identity thief was a known, convicted individual, (2) the debts were associated with a residential address, and (3) the debt collector treated the debts as “debts” under the FDCPA, she had created a triable issue of fact. Anderson, 2011 WL 1808779 at *14. The court disagreed, reasoning that individuals sometimes conduct commercial activities from residential addresses. Id. This court further notes that the Verizon accounts and (presumably) telephone charges at issue in Anderson would, by their very nature, likely be more difficult to classify than discrete fraudulent purchases of the type made on the HSBC credit card here. 14 1 case does not include sufficient evidence of a “debt” as defined by 2 the FDCPA to create a triable issue of fact. 3 entitled to summary judgment on the FDCPA and RFDCPA claims. 4 5 E. Midland is therefore Libel Under California law, libel “is a false and unprivileged 6 publication . . . which exposes any person to hatred, contempt, 7 ridicule, or obloquy, or which causes him to be shunned or avoided, 8 or which has a tendency to injure him in his occupation.” 9 Civ. Code § 45. Cal. The FCRA, however, preempts all libel claims 10 except with respect to consumer information “furnished with malice 11 or willful intent to injure such consumer.” 12 A plaintiff must, therefore, show that a defendant furnished credit 13 information with knowledge of falsity or reckless disregard for the 14 truth. 15 Sullivan, 376 U.S. 254 (1964). 16 15 U.S.C. § 1681h(e). Gorman, 584 F.3d at 1168 (citing New York Times v. Here, Plaintiff argues that Midland was admittedly reckless 17 because it stated, in response for a request for admission, that it 18 lacked sufficient information to admit or deny that the HSBC 19 account is fraudulent. 20 above, Midland attempted to investigate Plaintiff’s dispute. 21 once Plaintiff clarified that a “fraudulent account” was at issue, 22 and even assuming that Midland received the fourth letter 23 referencing “identity theft,” Plaintiff never provided Midland with 24 the documentation it needed, and requested, to carry out a full 25 investigation. 26 own failures impeded Midland’s inquiry. 27 no rational trier of fact could conclude that Midland was reckless, 28 let alone intentional, in its reporting of the HSBC account. (Opp. at 27.) As discussed at length Even Though Midland opened an investigation, Plaintiff’s 15 Under such circumstances, 1 2 IV. Conclusion For the reasons stated above, Defendant’s Motion for Summary 3 Judgment is GRANTED, with one exception. The court does not reach 4 Plaintiff’s remaining claim for declaratory and injunctive relief 5 under California Civil Code Section 1798.93(c). 6 to exercise supplemental jurisdiction over that lone remaining 7 state law claim. The court declines See 28 U.S.C. § 1367(c). 8 9 IT IS SO ORDERED. 10 11 12 Dated: October 4, 2013 DEAN D. PREGERSON United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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