United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO
DISMISS OR STRIKE RE: ECF NOS. 24, 40
TIGAR, UNITED STATES DISTRICT JUDGE
Chico Produce, Inc. d/b/a/ Pro Pacific Fresh, Inc.
(“ProPacific”) and IntelliCheck, LLC
(“IntelliCheck”) move to dismiss or strike
portions of Plaintiff James Cunha's first amended
complaint (“FAC”). ECF Nos. 24, 40. The Court
will grant the motions in part and deny them in part.
putative class action arises out of an employment background
check that IntelliCheck performed on Cunha when he applied to
be a produce delivery driver for ProPacific on April 30,
2016. FAC, ECF No. 21 ¶ 8. On his first day of
employment, Cunha was required to sign a number of forms,
including a “Disclosure and Authorization for Consumer
Reports” form (“Disclosure Form”).
Id. ¶¶ 8, 10. After Cunha signed the
Disclosure Form, IntelliCheck prepared a consumer report on
Cunha that included information about misdemeanor convictions
that occurred more than seven years prior to the date of the
consumer report and information about arrests that did not
result in a conviction. Id. ¶ 15. As a result
of the information contained in the consumer report,
ProPacific terminated Cunha on May 20, 2016. Id.
alleges that ProPacific and IntelliCheck violated the Fair
Credit Reporting Act (“FCRA”) and
California's Investigative Consumer Reporting Agencies
Act (“ICRAA”) by: (1) failing to make the
requisite disclosures prior to obtaining a consumer report on
Cunha; (2) preparing a consumer report that contained
information older than seven years and terminating Cunha on
that basis; and (3) failing to provide a copy of the consumer
report before terminating Cunha based on information
contained therein. Id. ¶¶ 21-23, 51, 92.
With respect to disclosures, Cunha alleges that
ProPacific's documents failed to disclose that Cunha had
the right to obtain a copy of the report, that Cunha had the
right to view the consumer report, and a statement
summarizing the provisions of California Civil Code §
1786.22. Id. ¶¶ 10, 26. Cunha further
alleges that ProPacific willfully violated the FCRA and the
ICRAA by inserting a liability waiver in its Disclosure Form.
Id. ¶ 13. Additionally, Cunha alleges that the
Disclosure Form violated the FCRA and the ICRAA because it
contained “extraneous information” (e.g. an
authorization to obtain a physical examination and drug and
alcohol testing) not solely related to the disclosure.
Id. ¶¶ 14, 59.
asserts the following seven causes of action:
(1) FCRA claim under §§ 1681c(a)(2) and 1681c(a)(5)
(2) FCRA claim under §§ 1681b(b)(2)(A) and 1681d
(3) FCRA claim under §§ 1681b(b)(3)(A) and 1681m
(4) FCRA claim under § 1681b(b)(2)(A)(ii) against
(5) ICRAA claim under § 1786.18 against IntelliCheck;
(6) ICRAA claim under § 1786, et seq. against
(7) California Unfair Competition Law (“UCL”)
claim under California Business & Professions Code §
17200, et seq. against both Defendants.
Id. ¶¶ 46-114. Based on these alleged
violations, Cunha and putative class members seek statutory
damages under the FCRA, actual damages under the ICRAA, and
injunctive relief and restitutionary disgorgement under the
UCL. Id. ¶ 24.
March 16, 2017, ProPacific moved to dismiss or strike
Cunha's second, fourth, sixth, and seventh causes of
action. ECF No. 24. On April 14, 2017, IntelliCheck moved to
dismiss Cunha's first, fifth, and seventh causes of
action. ECF No. 40. For the foregoing reasons, the Court
grants in part and denies in part the motions.
REQUESTS FOR JUDICIAL NOTICE
turning to the merits of the motions to dismiss, the Court
resolves the parties' requests for judicial notice.
a general rule, we may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion.”
United States v. Corinthian Colleges, 655 F.3d 984,
998-99 (9th Cir. 2011) (internal quotation marks and
citations omitted). However, “[t]he court may
judicially notice a fact that is not subject to reasonable
dispute because it: (1) is generally known within the trial
court's territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed.R.Evid. 201(b).
The Court “may take judicial notice on its own; or 
must take judicial notice if a party requests it and the
court is supplied with the necessary information.”
requests that the Court take judicial notice of the following
documents: (1) First Amended Complaint and Demand for Jury
Trial in Sarmad Syed, et al. v. M-I LLC, et al, Case
No. 14-CV-00742-WBS-BAM, ECF No. 36 (E.D. Cal.); and (2)
Order filed in Gabriel Felix Moran v. The Screening Pros,
LLC, Case No. 12-57246 (9th Cir.). ECF No. 34-1.
Defendants do not oppose this request.
requests that the Court take judicial notice of the following
documents: (1) Order filed in Marchioli v.
Pre-Employ.com, Inc., Case No. 16-CV-02305-JGB-DTB (C.D.
Cal., Jan. 25, 2017); and (2) Order filed in John Doe v.
Sterling Infosystems, Inc., Case No. 15-CV-04770-RGK-AJW
(C.D. Cal., Dec. 21, 2015). ECF Nos. 41, 51. Cunha does not
oppose this request.
Court grants both requests for judicial notice because the
documents are public court filings. See Reyn's Pasta
Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6
(9th Cir. 2006) (“We may take judicial notice of court
filings and other matters of public record”).
Court also takes judicial notice of Cunha's consumer
report from May 2016 under the incorporation by reference
doctrine. See Knievel v. ESPN, 393 F.3d 1068, 1076
(9th Cir. 2005) (“A court may take into account
documents whose contents are alleged in a complaint and whose
authenticity no party questions, but which are not physically
attached the [plaintiff's] pleading.”) (internal
quotation marks omitted) (quoting In re Silicon Graphics
Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir.1999)).
Cunha references his May 2016 consumer report throughout his
complaint, and IntelliCheck and Cunha both attached this
document to their briefing. See ECF No. 40-1, Ex. A;
ECF No. 48-2, Ex. 1.
MOTIONS TO DISMISS OR STRIKE
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief” which gives “the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Fed.R.Civ.P. 8(a)(2); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal quotation
marks omitted). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted). “A
claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Id. at 663.
Rule 12(f) of the Federal Rules of Civil Procedure, the Court
“may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter.” The function of a motion to strike pursuant to
Rule 12(f) is “to avoid the expenditure of time and
money that must arise from litigating spurious issues by
dispensing with those issues prior to trial.”
Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970,
973 (9th Cir. 2010) (citation omitted).
does not oppose IntelliCheck's motion to dismiss his
claim under Section 1681c of the FCRA. ECF No. 40 at 11-13;
ECF No. 48 at 9. Therefore, the Court grants the motion to
dismiss this claim with prejudice.
moves to dismiss or strike portions of Cunha's second
cause of action on the ground that he has failed to state a
claim under Sections 1681d and 1681g(c) of the FCRA because
he has not alleged sufficient facts to demonstrate that the
information contained in his consumer report was obtained
through personal interviews. ECF No. 24 at 8-9. The Court agrees.
alleges that ProPacific violated Section 1681d(a) “by
failing to provide a disclosure concerning the nature and
scope of the investigation for the consumer report and by
failing to provide a summary of the consumer's rights
under 15 U.S.C. § 1681g(c).” ECF No. 21, ¶
62. However, Section 1681d's disclosure requirements only
apply to “investigative consumer reports, ” which
the statute defines as “a consumer report or portion
thereof in which information on a consumer's character,
general reputation, personal characteristics, or mode of
living is obtained through personal interviews with
neighbors, friends, or associates of the consumer reported on
or with others with whom he is acquainted or who may have
knowledge concerning any such items of information.”
See 15 U.S.C. §§ 1681d, 1681a(e) (emphasis