Andrews v. TRW INC., 98-56624

• Decision Date: 03 April 2000
• Docket Number: No. 98-56624,98-56624
• Citation: 225 F.3d 1063
• Parties: (9th Cir. 2000) ADELAIDE ANDREWS, Plaintiff-Appellant, v. TRW INC., Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1063

225 F.3d 1063 (9th Cir. 2000)

ADELAIDE ANDREWS, Plaintiff-Appellant, v. TRW INC., Defendant-Appellee.

No. 98-56624

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted April 3, 2000--Pasadena, California

Filed July 17, 2000

Amended October 4, 2000

COUNSEL: Carlyle W. Hall, Jr., Andrew R. Henderson, Hall & Henderson, LLP, Los Angeles, California, Jilana L. Miller, Laura N. Diamond, Center for Law in the Public Interest, Los Angeles, California, Gerald L. Sauer, Sauer and Wagner, LLP, Los Angeles, California, for the plaintiff-appellant.

Daniel J. McLoon, Kevin R. Lussier, Eugenia L. Castruccio, Jones, Day, Reavis & Pogue, Los Angeles, California, for the defendant-appellee.

Michael O'Neil, Esq., Rudnick and Wolfe, Chicago, Il, for the amicus.

Appeal from the United States District Court for the Central District of California Lourdes G. Baird, District Judge, Presiding D.C. No. CV-96-07369-LGB

Before: William C. Canby, Jr., John T. Noonan, and William A. Fletcher, Circuit Judges.

OPINION

NOONAN, Circuit Judge:

Adelaide Andrews (Andrews) appeals the judgment by the district court in her suit against TRW, Inc. The case involves the rights under the Fair Credit Reporting Act, 15 U.S.C. SS 1681-1681u (1994 & Supp. II) (FCRA), and Cal. Bus. & Prof. Code S 17200 et. seq. (1996), of a person claiming to be damaged by the disclosure of inaccurate credit information by a consumer credit reporting agency such as TRW.

We hold that Andrews's suit was not barred by S 1681p. We further hold that it was not a question of law but a question to be resolved by the jury as to whether TRW had reason to believe that it was furnishing information in connection with a consumer transaction involving Andrews. For these reasons we reverse the partial summary judgments awarded TRW on the first of Andrews's claims. As to the claims that did go to trial and ended in judgment against her after trial, we find no harmful error and affirm.

FACTS

In June 1993, Andrea Andrews (hereafter the Imposter) obtained the social security number and California driver's license number of Adelaide Andrews (hereafter the Plaintiff). The Imposter did so simply by misusing her position as a doctor's receptionist and copying the information that the Plaintiff, as a patient in that office, supplied to the doctor.

In 1994-1995 the Imposter applied for credit to four companies subscribing to TRW's credit reports. For example, on July 25, 1994, to First Consumers National Bank (FCNB), the Imposter applied as Andrea A. Andrews, 3993-1/2 Harvard Blvd., Los Angeles, CA, 90062, phone 213-312-0605, employed at Spensor-Robbyns Products, Los Angeles. The Imposter gave the birth date and social security number of the Plaintiff.

In this application the only misinformation was the Imposter's use of the Plaintiff's social security number and date of birth. On October 28, 1994 to Express Department Stores the Imposter made a comparable credit application, using her own identity except for the Plaintiff's social security number. Again, in January 1995, to Commercial Credit the Imposter applied for credit, using her own identity, except for Plaintiff's social security number and a clumsy misspelling of her first name as "Adeliade."

TRW responded to the credit inquiries of the three companies by treating the applications as made by the Plaintiff. TRW furnished the information in its file on the Plaintiff and added the three inquiries to the Plaintiff's file.

Each of the credit applications applied for by the Imposter was turned down by the company getting the TRW report. In addition, the Imposter applied for cable service to a public utility, Prime Cable of Las Vegas, which was required by law to provide cable services but nonetheless asked for a TRW report. The Imposter applied as Andrea Andrews, 4201 S. Decatur #2202, Las Vegas, NV, 89103, Phone 248-6352. The Imposter used the social security number of the Plaintiff, which was the only stolen item of identity provided. This account became delinquent and was referred to a collection agency.

The Plaintiff, however, became aware of the Imposter only on May 31, 1995 when she sought to refinance the mortgage on her home. The bank from which the financing was sought received a report from Chase Credit Research, not a party to this case, whose report combined information from TRW and two other credit reporting agencies. Now aware of the fraud, Andrews contacted TRW and requested deletion from her file of all reference to the Imposter's fraudulent activities. TRW complied.

PROCEEDINGS

On October 21, 1996, the Plaintiff filed this suit in the district court. In her first claim she alleged that TRW had furnished credit reports without "reasonable grounds for believing" that she was the consumer whom the credit applications involved, contrary to 15 U.S.C. SS 1681b and 1681e(a), and that as a consequence she had suffered damages including an expenditure of time and money and "commercial impairment, inconvenience, embarrassment, humiliation, and emotional distress including physical manifestations." In her second claim, she alleged that TRW had violated S 1681e by not maintaining the "reasonable procedures" required by that statute in order "to assure maximum possible accuracy of the information concerning the individual about whom the report relates." 15 U.S.C. S 1681e(b). She alleged the same damages. She asserted that both violations were willful and that both also violated Cal. Bus. & Prof. Code S 17200 et. seq. She sought actual and punitive damages and an injunction requiring TRW to comply with the Fair Credit Reporting Act by "requiring a sufficient number of corresponding points of reference" before disseminating an individual's credit history or attributing information to an individual's credit file.

On May 28, 1998, the district court granted partial summary judgment to TRW. The court held that the two year statute of limitations provided by S 1681p began to run at the time the alleged wrongful disclosures of credit information were made to the requesting companies. By this test the complaint was too late as to the disclosures made to FCNB and to Prime Cable. As to the disclosures made to Express and Commercial, the court ruled that they were made for a purpose permissible under S 1681b(a)(3)(A), because the Plaintiff, even against her will, was "involved" in the credit transaction initiated by the Imposter. Any other rule, the court said, would place "too heavy a burden on credit reporting agencies." In addition, the court ruled that TRW had used the "reasonable procedures" required by S 1681e(a) to limit disclosures to permissible purposes. For these several reasons, the court granted summary judgment to TRW on the Plaintiff's first claim.

The court also struck Plaintiff's claim for punitive damages on both her first and second causes of action. The court ruled that the Plaintiff had produced no evidence of TRW's conscious disregard of reasonable procedures. In so ruling, the court did not consider the testimony of Dr. Douglas Stott Parker, the Plaintiff's expert on computers or the testimony of Evan Hendricks, the Plaintiff's expert on the prevalence of identity theft.

TRW then moved in limine to bar from testifying at trial the Plaintiff's witness Douglas Stott Parker, offered as an expert on the Plaintiff's second claim that TRW's procedures were not reasonable in assuring maximum possible accuracy. Relying in part on its earlier rulings, the district court ordered that Parker not testify as to procedures leading to inaccuracy in TRW disclosing the Plaintiff's information upon the Impostor's applications.

The case proceeded to trial on the Plaintiff's second and third claims. The jury returned a verdict for TRW. The Plaintiff appeals the consequent judgment on all her claims.

ANALYSIS

The Statute of Limitations. Liability under the statute arises when a consumer reporting agency fails to comply with S 1681e. Guimond v. Trans Union Credit Information Co., 45 F.3d 1329 (9th Cir. 1995). The question is presented whether Andrews's claims are barred as to those alleged failures to comply which occurred before October 21, 1994. 15 U.S.C. S 1681p reads:

An action to enforce any liability created under this title may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within two years from the date on which the liability arises, except that where a defendant has materially and willfully misrepresented any information required under this subchapter to be disclosed to an individual and the information so misrepresented is material to the establishment of the defendant's liability to that individual under this title, the action may be brought at any time within two years after discovery by the individual of the misrepresentation.

The general federal rule is that a federal statute of limitations begins to run when a party knows or has reason to know that she was injured. Norman Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1266 (9th Cir. 1998). By this test none of the Plaintiff's injuries were stale when suit was brought.

The district court relied on what it saw as the implication of the statute explicitly referencing a discovery time limit...