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Kamlesh Banga v. Allstate Insurance Company and Does 1 Through 10


September 28, 2012



Plaintiff, proceeding "in propria persona," has filed this action seeking relief pursuant to the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x, the California Consumer Credit Reporting Agencies Act, Cal. Civ. Code § 1785.1-1785.36, and a common law claim for defamation. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and E.D. Cal. R. ("Local Rule") 302(21).

On August 24, 2012, Magistrate Judge Brennan filed Findings and Recommendations herein which were served on all parties and which contained notice to all parties that any objections to the Findings and Recommendations were to be filed within fourteen days. Plaintiff has filed objections to the Findings and Recommendations, and defendant has filed a response to plaintiff's objections.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, this court agrees that part of this case should be dismissed with prejudice, but for reasons that differ somewhat from those set forth in the Findings and Recommendations.


The court adopts the Magistrate Judge's Findings regarding the "long and muddled procedural history" of this case, the standards applicable for the motion to dismiss,*fn1 and the factual description of plaintiff's claims. However, the court will dismiss the claim alleging false reporting on the payments for plaintiff's fire claim, on the basis that plaintiff's own exhibits establish that there was no false report.


Plaintiff alleges that defendant furnished the following "false and negative information about plaintiff" to credit reporting agencies: (1) "that plaintiff was paid $40,938 to settle her fire claims as opposed to $37,126.20,"*fn2 (2) "that the said fire claim was still open;" and (3) that "plaintiff's tree fell on neighbor's house," and that "the said claim was still open." Sixth Amended Complaint ("Complaint") ¶ 7.

A. The Fire Loss.

Plaintiff alleges that defendant falsely reported that it paid $40,938 "to plaintiff" for her fire loss. Complaint ¶ 11. In support of this allegation, plaintiff attached "Exhibit E" (Dkt. No. 91 at pp. 23-25).*fn3 Plaintiff does not assert that the $40,938 was false, only the alleged assertion that it was paid "to plaintiff."*fn4

Exhibit E purports to be a "Home Seller's Disclosure Report" issued by the Comprehensive Loss Underwriting Exchange ("C.L.U.E."). Reading the report in the light most favorable to plaintiff's allegations, the report states that defendant ("Allstate Ins. Co.") paid $40,938 on plaintiff's fire claim. Drawing all inferences in favor of plaintiff, the court infers that defendant reported this information to C.L.U.E. (directly or indirectly), and that is how it wound up in this C.L.U.E. report.

However, it would not be a reasonable inference from Exhibit E that all $40,938 was paid "to plaintiff." Even if this were a reasonable inference however, it is defeated by plaintiff's other exhibits. Plaintiff has submitted as "Exhibit K " a series of reports purporting to be issued by defendant, which sets forth amounts paid on plaintiff's claim -- although apparently not all the payments -- and to whom. Although plaintiff submitted Exhibit K in support of her allegation that all $40,938 was paid "to plaintiff," Exhibit K shows that defendant paid at least $5,033.46 of this amount to "The Restoration Cleanup Co Inc," rather than "to plaintiff." Dkt. No. 91 at pp.55, 57, 66, 84 and 95.*fn5

In sum, according to the complaint and attached exhibits, defendant reported to a credit reporting agency that it had paid over $40,938 in settlement of plaintiff's June 5, 2006 fire claim. The only allegedly false part of this report is defendant's purported assertion that the full $40,938 was paid "to plaintiff." However, the complaint and attached exhibits conclusively show that defendant included no such assertion in its reports to the agency.*fn6 Accordingly, this portion of plaintiff's complaint fails to state a claim upon which relief can be granted.

B. The Fallen Tree and the "Still Open" Fire Claim.

Plaintiff alleges that defendant falsely reported to credit reporting agencies that "plaintiff's tree fell on neighbor's house," that "the said claim was still open," and that at one point defendant falsely reported that the fire claim was still open. Complaint ¶¶ 20 & 22. The complaint further asserts that these alleged falsehoods were also the cause of her harm under all three causes of action. Complaint ¶¶ 33, 39 and 47. The Findings and Recommendations do not address these claims.*fn7 The matter will therefore be remanded for consideration of these claims.


Accordingly, IT IS HEREBY ORDERED that:

1. Defendant's motion to dismiss, Dkt. No. 92, is GRANTED to the degree it is based upon plaintiff's claim that the reporting of payments made on the fire claim was false, and plaintiff's Sixth Amended Complaint is DISMISSED WITH PREJUDICE to that extent;*fn8 and

2. The matter is RETURNED to the Magistrate Judge for consideration of defendant's motion to dismiss plaintiff's claims that defendant falsely reported a fallen tree claim, and that defendant falsely reported that the fire claim was still open.


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