Banga v. Equifax Info. Servs. LLC
| Decision Date | 25 February 2016 |
| Docket Number | Case No. 14-cv-03038-WHO |
| Parties | KAMLESH BANGA, Plaintiff, v. EQUIFAX INFORMATION SERVICES LLC, Defendant. |
| Court | U.S. District Court — Northern District of California |
Plaintiff Kamlesh Banga, proceeding pro se, brings this action against defendant Equifax Information Services LLC ("Equifax") because in a prior lawsuit she brought against Equifax in this district, Banga v. Equifax Info. Servs. LLC, No. 09-cv-04807-JSW (N.D. Cal. filed Oct. 8, 2009), Equifax filed excerpts from two of her credit reports with the district court and Ninth Circuit without first redacting from the reports her Social Security number and other personal identifying information. She claims that in doing so, Equifax breached the Stipulated Protective Order in that case, and also violated California Civil Code § 1798.85(a)(1), California's Unfair Competition Law ("UCL"), and her right to privacy under the California Constitution. Separately, she accuses Equifax of violating the Fair Credit Reporting Act ("FCRA") by failing to exclude her name from promotional lists distributed to third-party credit providers despite her repeated requests that her name be excluded from such lists.
Equifax moves for summary judgment on each of Banga's five causes of action. Banga's claims that arise from the disclosure of her personal identifying information in the prior lawsuit are barred by California's litigation privilege, unsupported by the evidence, or both. Accordingly, Equifax's motion for summary judgment on Banga's first, second, fourth, and fifth causes of action - each of which is based exclusively on that allegedly illegal disclosure - is GRANTED. But genuine disputes of material fact remain whether Banga made a telephone call on October 15, 2010 that complied with FCRA requirements to have Equifax exclude her name from promotional lists distributed to third-party credit providers, and whether she suffered damages as a result of Equifax's breach of that obligation. Equifax's motion for summary judgment on Banga's third cause of action for negligent violation of the FCRA is DENIED, as discussed below.
This is the third in a series of lawsuits that Banga has brought against Equifax in this district.1 She filed the first one on June 18, 2008. Banga v. National Credit Union Administration, No. 08-cv-03015-MMC (N.D. Cal. filed Jun. 18, 2008) ("Banga I"). On October 6, 2009, Judge Chesney granted Equifax's motion for summary judgment. Id. at Dkt. No. 167. Shortly thereafter, Banga and the remaining defendant entered a settlement agreement and Judge Chesney dismissed the case. Id. at Dkt. Nos. 172, 179.
Banga filed the second lawsuit on October 8, 2009. Banga v. Equifax Info. Servs. LLC, No. 09-cv-04807-JSW (N.D. Cal. filed Oct. 8, 2009) ("Banga II"). Banga claimed, among other things, that Equifax had violated a provision of the FCRA, 15 U.S.C. § 1681b(e), and an analogous provision of the California Consumer Credit Reporting Agencies Act ("CCRAA"), Cal. Civ.Code § 1785.11(d)(1). Both statutes concern the circumstances under which a credit reporting agency may disclose information about a consumer to a third party for the purposes of a credit transaction "not initiated by the consumer," i.e., for promotional purposes. See 15 U.S.C. § 1681b(e); Cal. Civ. Code § 1785.11(d)(1). Banga alleged that on April 14, 2003, she "had a promotional block placed on her [credit] report so that junk mail solicitations for credit would be unable to utilize the information on her credit report," and that on July 10, 2003, she "sent a written request that her credit report should be excluded permanently [from] all preapproved credit offer . . . mailing lists." Banga II, Dkt. No. 69 ¶ 9. She alleged that Equifax "had sold her credit report for promotional purposes to . . . numerous entities after [she] had placed a promotional block on her credit report." Id. ¶ 10.
On January 25, 2011, Judge White granted Equifax's motion for summary judgment, holding that Banga's claims were barred by the applicable statutes of limitations for the FCRA andCCRAA, and that she had failed to produce sufficient evidence of either damages or willfulness, as required to support her claims under both statutes. Banga II, Dkt. No. 108. In ruling on willfulness, Judge White found that Banga "failed to proffer any evidence whatsoever of [Equifax's] practices and failed to dispute the fact that [Equifax] never received [the written request she allegedly sent on July 10, 2003]." Id. at 5. Thus, Banga had "failed to provide any basis for her conclusory assertions that [Equifax] acted willfully or in reckless disregard of the law." Id. Judge White also found that Banga's claims were time-barred. Id. at 4. The Ninth Circuit affirmed on appeal, finding that the claims were time-barred but not addressing the damages/willfulness issue. Banga II, Dkt. No. 122.
Banga filed this action on December 30, 2013 in the Superior Court of California for the County of San Francisco. Dkt. No. 1-2. She served Equifax with her first amended complaint on June 18, 2014. Dkt. No. 1-1 ("FAC"). On July 2, 2014, Equifax removed the case to federal court. Dkt. No. 1.
Banga's claims in her FAC were based on two distinct courses of conduct by Equifax. See, e.g., FAC ¶ 6. First, she alleged that Equifax "displayed [her] Social Security number, date of birth, [and] current and past addresses to the general public by filing [her] partial credit reports of August 14, 2007 and July 20, 2004 with the Ninth Circuit and district court's dockets without seal." Id. Equifax initially displayed the credit reports on October 26, 2010 by filing them as an exhibit attached to the Declaration of Vicki Banks (the "Banks Declaration") submitted in support of its motion for summary judgment before Judge White in Banga II. Id. ¶ 12. Equifax then displayed the credit reports a second time by including the Banks Declaration in the excerpts of record it filed with the Ninth Circuit on appeal. Id. ¶ 11.
Banga stated that she first noticed that the credit reports had been filed "without seal" on October 30, 2012, more than two years after Equifax first submitted them in Banga II. Id. The next day, Banga wrote a letter to Equifax requesting that the credit reports be immediately removed from the district court and Ninth Circuit dockets. Id. ¶ 12. Equifax did not respond. Id.On December 3, 2012, Banga again requested that the credit reports be removed, but again without success. Id. ¶ 13.
On July 2, 2014, shortly after being served with Banga's FAC, Equifax filed motions with the district court and Ninth Circuit seeking to strike the offending credit reports from the courts' records and to replace them with properly redacted versions. See Banga II, Dkt. No. 126; Banga v. Equifax Info. Servs. LLC, No. 11-15460, Dkt. No. 35 (9th Cir. July 2, 2014) ("Banga Appeal"). Both motions were granted, and the credit reports have since been struck from the courts' records. Banga II, Dkt. Nos. 75, 127; Banga Appeal, Dkt. Nos. 16, 36. Equifax refiled the Banks Declaration with a properly redacted exhibit on August 8, 2014. Banga II, Dkt. No. 129. The exhibit in question is twelve pages long; Banga's now-redacted personal identifying information appears on pages six and twelve. See id.
The second basis for Banga's claims in the FAC was her allegation that Equifax "impermissibly disseminated [her] credit report information for promotional purposes to third parties notwithstanding the fact that [her] name had been blocked permanently from all preapproved credit offer mailing lists." FAC ¶ 6. I discuss this theory of liability and the relevant facts in detail in Section III of this Order below.
The FAC alleged five causes of action against Equifax: (1) "breach of election to opt-out" in violation of California Civil Code § 1785.11(d)(1) (); (2) violation of California Civil Code § 1798.85(a)(1);2 (3) common law invasion of privacy; (4) violation of the UCL, Cal. Bus. & Prof. Code § 17200 et seq.; and (5) violation of the right to privacy protected by Article I, Section 1 of the California Constitution. FAC ¶¶ 19-44.
On June 18, 2015, I issued an order granting Equifax's motion for judgment on the pleadings. Dkt. No. 49 ("Prior Order"). I began by holding that to the extent that Banga's claims were based on the disclosure of her Social Security number and other personal identifyinginformation during the course of Banga II and the Banga Appeal, they were barred by California's litigation privilege. Prior Order at 6-9. This completely disposed of Banga's cause of action under California Civil Code § 1798.85(a)(1), which was based exclusively on the filing of her unredacted credit reports. Id. at 9.
I then found that the rest of Banga's claims also failed to the extent that they were based on her second theory of liability, i.e., that Equifax "impermissibly disseminated [her] credit report information for promotional purposes to third parties notwithstanding the fact that [her] name had been blocked permanently from all preapproved credit offer mailing lists." FAC ¶ 6. Her cause of action under California Civil Code § 1785.11(d)(1) was defective because that provision is preempted by the FCRA. Prior Order at 9-12. Her common law invasion of privacy claims failed because she had not plausibly alleged either that any "offensive and objectionable private facts" had been disclosed, or that she had suffered an actionable "intrusion into a private place, conversation, or matter." Id. at 12-14 (internal quotation marks omitted). Her state constitutional right to privacy claims failed for essentially the same reasons, and her UCL claims were aimed principally at the allegedly illegal disclosure of...
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