United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: DKT.
NOS. 46 & 58
WOOD S. GILLIAM, JR., United States District
the Court is the motion for partial summary judgment or, in
the alternative, for summary adjudication filed by Defendant
Experian Information Solutions, Inc. ("Experian").
Dkt. No. 46 ("Mot."). Experian contends that
discovery has produced no evidence to support Plaintiff James
Banneck's ("Banneck") claim that Experian
inaccurately reported credit information about him or that
willfully reported any inaccuracies. Banneck has filed an
opposition, Dkt. No. 51 ("Opp."), and Experian has
filed a reply, Dkt. No. 55 ("Reply").
reasons set forth below, the Court GRANTS IN PART and DENIES
IN PART Experian's motion for partial summary judgment.
Summary judgment is proper as to all claims alleging that
Experian inaccurately reported Banneck's short sale as a
foreclosure, as well as to the issue of willfulness. Summary
judgment is not proper, however, as to all claims alleging
that Experian inaccurately reported the date of the short
an action under the Fair Credit Reporting Act, 15 U.S.C.
§ 1681, et seq. ("FCRA"), and the
California Consumer Credit Reporting Agencies Act, Cal. Civ.
Code § 1785.1, et seq. ("CCRAA"),
both of which proscribe certain credit reporting conduct.
Dkt. No. 1 ("Compl.") ¶ 1.
took out a mortgage with Defendant HSBC Bank USA, N.A.
("HSBC"). Id. ¶ 7. He completed a
"short sale" after which nothing further was owed
on the loan. Id. ¶¶ 8-9. Banneck alleges
that HSBC, however, erroneously reported the short sale as a
foreclosure to Experian. Id. ¶ 10. Experian
then produced consumer credit reports that contained the
false information about a foreclosure. Id. ¶
13. Banneck disputed the credit report with HSBC and Experian
in writing, id. ¶ 11, but he alleges that they
failed to conduct reasonable investigations into the dispute,
id. ¶ 12.
and separately, HSBC and Experian began to incorrectly report
that: (1) Banneck's short sale would continue on his
credit record until November 2014; (2) Banneck had 120-day
late payments on the account; and (3) the debt was
transferred to another lender. Id. ¶ 15.
result of HSBC and Experian's credit reporting,
Banneck's creditworthiness was damaged. Id.
¶ 16. This conduct and damage also caused Banneck
emotional distress. Id. ¶ 17.
on these factual allegations, Banneck asserts that Experian
failed to establish or follow reasonable procedures to assure
maximum possible accuracy in the preparation of his credit
report and credit files that it published and maintains, in
violation of 15 U.S.C. § 1681e(b) and California Civil
Code § 1785.14(b). Id. ¶¶ 19, 27(a).
Banneck also asserts that Experian failed to delete
inaccurate information in his credit file after receiving
actual notice of those inaccuracies, to conduct a lawful
reinvestigation, to forward all relevant information to HSBC,
and to maintain reasonable procedures by which to filter and
verify disputed information in his credit file, all in
violation of 15 U.S.C. § 1681i and California Civil Code
§ 1785.16. Id. ¶¶ 20, 27(b).
alleges that Experian's actions were negligent, if not
willful and knowing. Id. ¶¶ 28, 30. To the
extent that this conduct was only negligent, he seeks actual
damages and attorneys' fees and costs under 15 U.S.C
§ 1681o and California Civil Code § 1785.31(a)(1).
Id. ¶¶ 24, 30. To the extent that the
conduct was willful within the meaning of the FCRA and CCRAA,
he seeks punitive damages under 15 U.S.C. § 1681n and
California Civil Code § 1785.31(a)(2). Id.
and HSBC answered the complaint. Dkt. Nos. 10 & 22. Experian
now moves for partial summary judgment or, alternatively,
summary adjudication. Experian contends there is no evidence
showing that Experian inaccurately reported Banneck's
short sale. Mot. at 13-16. Specifically, Experian points to
evidence that, while a reporting error occurred, the error
did not occur in Experian's credit reporting, but in
non-party Fannie Mae's subsequent underwriting.
Id. at 7-9. In any case, Experian contends that even
if it violated the FCRA and the CCRAA, there is no evidence
that those violations were willful within the meaning of the
argues that even if Experian did not inaccurately report
Banneck's short sale as a foreclosure, it was
Experian's misleading use of shorthand to identify the
short sale that caused Fannie Mae's error. Id.
at 5-8. Furthermore, Banneck posits that it is undisputed
that Experian misreported the date of the short sale, which
separately constitutes an actionable claim. Id. at
5-6. Finally, Banneck contends that willfulness is a question
for the jury. Id. at 8-9.
REQUEST FOR JUDICIAL NOTICE
turning to the merits of the motion, the Court addresses
Experian's request for judicial notice of various orders
and filings in other FCRA cases. Dkt. No. 46-2
("RJN"). Generally, a court may take judicial
notice of documents "not subject to reasonable
dispute." Fed.R.Evid. 201(b). Proceedings, including
orders and filings, in other courts, including state courts,
are the proper subject of judicial notice only when directly
related to the case. Tigueros v. Adams, 658 F.3d
983, 987 (9th Cir. 2011) (internal citations omitted).
Court denies Experian's request. The materials for which
it seeks judicial notice are not directly related to this
case, but merely discuss similar factual and legal claims.
See Id. To the extent that Experian seeks to admit
findings contained these materials for the truth of the
matters they assert, judicial notice is not appropriate.
See Lasar v. Ford Motor Co., 399 F.3d 1101, 1117
n.14 (9th Cir. 2005) (declining judicial notice of findings
made in a state court proceeding "because [defendants
were] offering the factual findings contained in the order
for the purpose of proving the truth of the factual findings
contained therein"); Wyatt v. Terhune, 315 F.3d
1108, 1114 n.5 (9th Cir. 2003) ("Factual findings in one
case ordinarily are not admissible for their truth in another
case through judicial notice."). To the extent Experian
seeks to cite materials that support its arguments, judicial
notice is unnecessary: the Court can, and will, consider the
reasoning of those materials for whatever persuasive value
they may have.
judgment is appropriate if, viewing the evidence and drawing
all reasonable inferences in the light most favorable to the
nonmoving party, there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 321 (1986). The district court
"does not assess credibility or weigh the evidence, but
simply determines whether there is a genuine factual issue
for trial." House v. Bell, 547 U.S. 518, 559-60
(2006). A fact is "material" if it "might
affect the outcome of the suit under the governing law,
" Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986), and a dispute as to a material fact is
"genuine" if there is sufficient evidence for a
reasonable trier of fact to decide in favor of the nonmoving
party, id. "If the evidence is merely
colorable, or is not significantly probative, summary
judgment may be granted." Id.
moving party bears the initial burden of identifying those
portions of the pleadings, discovery, and affidavits that
demonstrate the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. Where the moving party
will bear the burden of proof on an issue at trial, it must
affirmatively demonstrate that no reasonable trier of fact
could find other than for herself. Id. at 325. But
on an issue for which the nonmoving party will bear the
burden of proof at trial, the moving party need only point
out "that there is an absence of evidence to support the
nonmoving party's case." Id. If the moving
party meets its initial burden, the nonmoving party must set
forth, by affidavit or as otherwise provided in Rule 56,
"specific facts showing that there is a genuine issue
for trial." Id. To show a genuine dispute in
response, the nonmoving party "must do more than simply
show that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). Where there is no
genuine dispute of material fact as to only a single claim or
defense or as to part of a claim or defense, district courts
may enter partial summary judgment. Fed.R.Civ.P. 56(a).
resolving the merits of Experian's motion for partial
summary judgment, the Court discusses the evidence presented.
The facts set forth ...