District Court (Cal.) Finds CCRAA Claim Can Proceed Simultaneously with FCRA Claim; FCRA’s Prohibition Against Injunctive Relief Inapplicable to CCRAA Claim

In Ramirez v. Trans Union, LLC, — F.Supp.2d —-, 2012 WL 4954120 (N.D.Cal. 2012), Judge Corely allowed a CCRAA claim to proceed against a CRA simultaneously with a FCRA claim, and found that FCRA’s prohibition against injunctive relief did not apply to CCRAA claims.  The District Court found no impediment to simultaneously maintaining CCRAA and FCRA claims.

The only California appellate court to address § 1785.34(a) held that it does not bar simultaneously filed claims. Cisneros v. U.D. Registry, Inc., 39 Cal.App. 4th 548, 581 (1995). The court “agree[d] with the trial court’s assessment” that the “plain meaning” of § 1785.34(a) applies to “a circumstance where there is a prior action pending under the federal law, and someone brings a later action under the state law.” Id. (internal quotation marks and citation omitted). This Court is required to follow Cisneros absent “convincing evidence” the California Supreme Court would hold otherwise. Carvalho v. Equifax Info. Services, LLC, 629 F.3d 876, 889 (9th Cir.2010); see also Alvarez v. Chevron Corp., 656 F.3d 925, 932 n. 7 (9th Cir.2011) (holding that the federal court was bound by a decision of the California Court of Appeal because there was no contrary California Supreme Court case on point and no convincing evidence that the California Supreme Court would reach a decision contrary to that of the California Court of Appeal). Thus, in Guillen v. Bank of America Corp., 2011 WL 4071996 *4 (N.D.Cal. Aug. 31, 2011), the district court relied on Cisneros to deny defendants’ motion to dismiss a CCRAA claim that was filed simultaneously with FCRA claims. The court reasoned that it “must defer to the interpretation of the California Court of Appeal [in Cisneros ] absent convincing evidence the California Supreme Court would decide the matter differently.” Id. This Court must do the same.¶  Defendant’s reliance on Drew v. Equifax Info. Servs., LLC, 2009 WL 595459 *11 (N.D.Cal. Mar. 5, 2009) is unavailing. Although the court applied § 1785.34(a) to dismiss plaintiff’s concurrently pled CCRAA claims as “duplicative,” 2009 WL 595459 at *11, order vacated in part on reconsideration, 2010 WL 1136434 (N.D.Cal. Mar. 20, 2010) aff’d in part, rev’d in part, 690 F.3d 1100 (9th Cir.2012), the court did not did not mention, let alone address, Cisneros. The trial court’s decision in Legge v. Nextel Commc’ns., Inc., 2004 WL 5235587 (C.D. Cal. June 25, 2004), is unpersuasive for the same reason. Id. at *12 n. 16 (stating while considering a class certification motion that § 1785.34(a) “bar[s] dual recovery” without mentioning Cisneros ). Regardless of whether Defendant’s interpretation of § 1785.34(a) is reasonable, or even the “most logical,” this Court is bound by Cisneros absent convincing evidence the California Supreme Court would rule otherwise. Defendant offers none.

  The District Court also found that the CCRAA’s injunctive relief remedy remained available, even though FCRA clearly does not allow for injunctive relief.  The District Court explained:

 There is no support for Defendant’s assertion that providing private litigants with an additional remedy under the CCRAA is “inconsistent” with the FCRA. To the contrary, the Ninth Circuit’s decision in Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147 (9th Cir.2009), suggests, if not compels, the conclusion that the additional remedy provision is not inconsistent with the FCRA. In Gorman, a credit card company, a “furnisher” of information to credit reporting agencies, challenged as preempted the same CCRAA remedy provision at issue here, section 1785.31. Among other contentions, the credit card company argued that the private right of action afforded litigants against credit furnishers under section 1785.31 was preempted by the FCRA because the FCRA expressly excludes a private right of action against furnishers. Id. at 1173 n. 35.  ¶  The Ninth Circuit disagreed. The court held that to the extent Congress had expressly saved the CCRAA liability provisions at issue from FCRA preemption, it must also have “intended also to save ‘other remedies as are provided under State law’ to enforce those liability rules.” Id. The court emphasized that the FCRA’s legislative history and the Federal Trade Commission’s interpretation of 1681t(a) support the court’s holding. “The Senate Report concluded that ‘no State law would be preempted [by the FCRA] unless compliance would involve a violation of Federal law. S.Rep. No. 97–517, at 12 (1969).” Id. And “[t]he Federal Trade Commission, charged with enforcing the FCRA, similarly understands the ‘basic rule’ governing preemption under the FCRA: Section 1681t(a) preempts state law ‘only when compliance with inconsistent state law would result in a violation of the FCRA.” Id. (citing 16 C.F.R. pt. 600 apx. § 622 ¶ 1). Here, as in Gorman, compliance with state law—the availability of an injunctive remedy to pri-vate litigants—would not result in a violation of a federal law. Thus, the availability of the remedy is not inconsistent with the FCRA. Indeed, at oral argument Defendant conceded that it was not aware of any case holding a state law inconsistent with, and therefore preempted by, the FCRA because it includes a remedy not available under the FCRA.