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Gottman v. Comcast Corp.

United States District Court, E.D. California

February 23, 2018

JAYSON GOTTMAN, Plaintiff,
v.
COMCAST CORPORATION, and DOES 1 through 50, inclusive, Defendants.

          MEMORANDUM AND ORDER RE: MOTION TO DISMISS

          WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE

         Plaintiff Jayson Gottman brought this putative class action against Comcast Corporation (“Comcast”) alleging violations of state law arising out of defendant's failure to protect consumers from identity theft.[1] Presently before the court is defendant Comcast's Motion to dismiss this action under Federal Rule of Civil Procedure 12(b)(6) on the ground that the claims asserted by plaintiff are preempted by federal law. (Def.'s Mot. (Docket No. 4).)

         I. Facts and Procedural History

         On December 23, 2016, Comcast called plaintiff to try to collect an unpaid balance of $786.34 on a fraudulent account created in plaintiff's name. (Compl. ¶ 30 (Docket No. 1-1).) Over the next two weeks, plaintiff learned that Comcast had made an inquiry into his credit report for purposes of establishing the new account. (Id. ¶ 31.) The address provided in conjunction with the new account did not match any of the addresses reflected on plaintiff's credit report. (Id.) Plaintiff provided Comcast with evidence that the account was fraudulent, which included a police report and a declaration of identity theft. (Id. ¶ 32.) Plaintiff asked Comcast for compensation for the expenses he incurred as a result of the fraudulent account. (Id.) Plaintiff alleges that he received a call from “Lynell, ” a representative from Comcast, rejecting his request for compensation. (Id. ¶ 34). Plaintiff allegedly asked “Lynell” what additional steps were taken to confirm the identity of the individual opening the account in his name, and “Lynell” replied, “we don't use additional steps, people move all the time.” (Id. ¶ 35.)

         On October 6, 2017, plaintiff filed a putative class action against defendant in California Superior Court alleging defendant failed to take reasonable steps to verify consumer identities when setting up accounts for cable television and other services, in violation of California Civil Code § 1785.20.3 and California Business and Professions Code § 17200. (Id. ¶ 2.) Plaintiff seeks to certify a class consisting of: “[a]ll persons in the State of California who suffered injury when Comcast accounts were fraudulently created in their names, where Comcast, among other things, failed to take reasonable steps in response to mismatched information on their credit reports, as required by California Civil Code section 1785.20.3, and its related statutes.” (Id. ¶ 12.) On December 19, 2017, defendant removed the case under 28 U.S.C. § 1441(a) based on diversity jurisdiction under 28 U.S.C. § 1332(d). (Def.'s Notice of Removal (Docket No. 1).)

         II. Legal Standard

         On a Rule 12(b)(6) motion, the inquiry before the court is whether, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor, the plaintiff has stated a claim to relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

         III. Discussion

         Defendant argues that plaintiff's first cause of action under California Civil Code § 1785.20.3 is expressly preempted by the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681c(h). (Def.'s P. & A. at 2 (Docket No. 4).) Defendant argues that because both provisions address the same subject, specifically situations where the information on an application for credit does not match the information on the consumer's credit report, the state statute is expressly preempted under section 1681t(b)(1)(E) of the FCRA. (Id. at 5-6.)

         A. California Civil Code § 1785.20.3

         California Civil Code § 1785.20.3 states in relevant part:

(a) Any person who uses a consumer credit report in connection with the approval of credit based on an application for an extension of credit, and who discovers that the consumer's first and last name, address, or social security number, on the credit application does not match, within a reasonable degree of certainty, the consumer's first and last name, address or addresses, or social security number listed, if any, on the consumer credit report, shall take reasonable steps to verify the accuracy of the consumer's first and last name, address, or social security number provided on the application to confirm that the extension of credit is not the result of identity theft, as defined in Section 1798.92.

Cal. Civ. Code § 1785.20.3.

         B. Section ...


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