Dennis v. Beh-1, LLC

• Decision Date: 07 May 2007
• Docket Number: No. 04-56230.,04-56230.
• Citation: 485 F.3d 443
• Parties: Jason DENNIS, Plaintiff-Appellant, v. BEH-1, LLC, a limited liability company in the State of California, Defendant, and Experian Information Solutions, Inc., an Ohio corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

485 F.3d 443

Jason DENNIS, Plaintiff-Appellant, v. BEH-1, LLC, a limited liability company in the State of California, Defendant, and Experian Information Solutions, Inc., an Ohio corporation, Defendant-Appellee.

No. 04-56230.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 17, 2006.

Filed May 7, 2007.

Louis P. Dell, Esq., Law Office of Louis P. Dell, Los Angeles, CA, for the plaintiff-appellant.

Alexander Frid, Jones Day, Los Angeles, California; Meir Feder, Jones Day, New York, NY, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding. D.C. No. CV-03-07064-R.

Before ALEX KOZINSKI, DIARMUID F. O'SCANNLAIN and JAY S. BYBEE, Circuit Judges.

PER CURIAM.

We address whether a credit reporting agency is liable under the Fair Credit Reporting Act (FCRA), Pub.L. No. 90-321, 84 Stat. 1128 (codified at 15 U.S.C. § 1681), when it relies on inaccurate information contained in public records. We also consider the appropriate scope of a reinvestigation of a disputed report under 15 U.S.C. § 1681i.

Facts

In October of 2002, plaintiff Jason Dennis was served with an unlawful detainer complaint by his landlord, BEH-1, LLC. BEH-1 eventually agreed to drop the suit, in exchange for $1,959, to be paid in installments; the parties stipulated that no judgement would be entered. A written stipulation was filed with the Los Angeles Superior Court, and someone — presumably a clerk — made the following entry on the court's Register of Civil Actions: "11/25/02 Court Trial Concluded — Judgment Entered."

Dennis subsequently received a credit report from defendant Experian Information Solutions, Inc., which indicated that a "Civil Claim judgment" had been entered against Dennis in the amount of $1,959. Dennis called Experian and advised it that he had settled the matter out of court and that a judgement was never entered against him.

Experian contacted Hogan Information Services, a third-party public records vendor, and requested that it verify the disputed information. Hogan reported back that the information was accurate, and Experian advised Dennis that it would not amend the report.

Dennis sued Experian, alleging violations of the California Consumer Credit Reporting Agencies Act, Cal. Civ.Code § 1785.10, and the FCRA. The district court granted summary judgment for defendant on all claims. On appeal, Dennis challenges only the summary judgment ruling on his federal claims arising from Experian's duty to maintain "reasonable procedures" to ensure the accuracy of credit reports under section 1681e(b), and its duty to reinvestigate the information Dennis disputed under section 1681i.¹

Analysis

1. Section 1681e(b) claim

To maintain a claim under this section, plaintiff must show not merely that the information disputed was inaccurate, but that the credit reporting agency failed to maintain "reasonable procedures" to insure the accuracy of its reports. See Guimond v. Trans Union Credit Information Co., 45 F.3d 1329, 1333 (9th Cir.1995). Here, information in the court file indicated that a judgment had been entered against Dennis in the lawsuit brought by his former landlord. The trial minutes noted that "pursuant to a WRITTEN stipulation, the parties applied to the court for judgment, which was so ordered," and the Superior Court's Register of Actions likewise indicated that a judgment had been entered. But the Superior Court has since issued an order declaring these entries to have been erroneous.²

We've held that once a plaintiff establishes that his credit report was inaccurate, "[t]he reasonableness of the procedures and whether the agency followed them will be jury questions in the overwhelming majority of cases." Guimond, 45 F.3d at 1333. But while the FCRA requires "maximum possible accuracy," it does not subject reporting agencies to strict liability. See Commentary on the Fair Credit Reporting Act, 55 Fed.Reg. 18,804, 18,820 (May 4, 1990) ("[Section 1681e(b)] does not require error free consumer reports."). Instead, the agencies are obligated to follow "reasonable procedures" to ensure that reports accurately reflect creditworthiness.

Here, the only alleged defect in Experian's initial investigation was that it relied on secondary documents, namely the trial minutes and the Register of Actions, without obtaining a copy of the actual judgment. Experian no doubt tolerated some risk of error by relying on these documents rather than the primary source. But both documents were official records issued by the Superior Court, and while court record-keeping systems are not perfect-as this case demonstrates-most are reasonably accurate. We thus conclude that it was reasonable, as a matter of law, for Experian to base its initial report on the secondary documents without doing any additional investigation. See Henson v. CSC Credit Servs., 29 F.3d 280, 285-86 (7th Cir.1994).

2. Section 1681(i) claim

When a consumer informs a reporting agency of alleged inaccuracies in his credit report, section 1681i(a)(1) requires that the agency commence a "reasonable reinvestigation" within 30 days. 15 U.S.C. § 1681i(a)(1)(A). Although Dennis had identified an error in his credit report, we cannot say that Experian's reinvestigation was unreasonable. After Dennis alerted Experian that his report was inaccurate, Experian contacted a third-party public records vendor, Hogan, to verify the accuracy of the document. Hogan hired a contractor, whom it regularly audits for reliability, to go to the courthouse and review the file. The contractor determined that a judgment had been entered against Dennis. While the stipulation suggested otherwise, the weight of the evidence, consisting of an entry in the Register notation and the trial minutes, supported that determination.

Indeed, the weight of the evidence is also that, as a matter of California law, entry in the Register is "entry of judgment." This reading is supported by Cal. Civ.Proc.Code § 668 and California case law. Section 668 reads as follows: "Except as provided in Section 668.5, the clerk of the superior court, must keep, with the records of the court, a book called the `judgment book,' in which judgments must be entered." Cal.Civ.Proc.Code § 668 (emphasis added). Similarly, in Wilson v. Los Angeles County Employees Ass'n, the court stated that "[t]he entry of a judgment consists in the recording of it in the judgment book, and there can be no record of a judgment until so entered. A judgment is entered when it is actually entered in the judgment book." 127 Cal.App.2d 285, 273 P.2d 824, 827 (1954) (citations omitted); see also Menzies v. Watson, 105 Cal. 109, 38 P. 641, 642 (1894) ("[Section] 668[ ] provides that judgment shall be entered in the judgment-book. There is no other `entry' of judgments mentioned in the code."); cf. Old Settlers Inv. Co. v White, 158 Cal. 236, 110 P. 922, 927 (1910) ("[T]here is no judgment under section 997 if the clerk does not enter any judgment, but merely records in the judgment docket, in a place where the statute does not provide for the entry of judgments, a document signed by the parties to the action and consenting that a judgment may be entered."). But see Gossman v. Gossman, 52 Cal.App.2d 184, 126 P.2d 178, 185 (1942) ("The judgment is deemed rendered when the decision is filed; its rendition is a judicial act, its entry is ministerial." (emphasis omitted)). It thus appears that, under California law, a judgment is entered when the court clerk records that judgment in the judgment book or, given § 668.5, its modern equivalents. As such, Experian correctly reported that judgment had been entered against Dennis, even if that judgment had been entered erroneously.³

If anyone was in a position to correct the error, it was Dennis himself. He knew, or should have known, that the case file in the unlawful detainer action contained erroneous or misleading information. He was the only one who could petition the Superior Court to correct the error. Experian certainly had no standing to seek correction of the official file in a case to which it was not a party. Nor would it have known with certainty what form such a correction should take. Nor does the duty to reinvestigate under section 1681(i) involve any more than examination of existing documents; it certainly does not put on the reporting agency the burden to clean up errors in a consumer's credit history that are caused by a third party. Under the circumstances, we are satisfied that defendant's investigation was sufficiently rigorous.

AFFIRMED.

1. As noted above, Dennis pursued a series of claims under state and federal law. He presumably invites us to consider all of these claims by broadly framing the question presented to us as "[w]hether it was error for the trial court to grant summary judgment in favor of Experian." However, his brief presents argument only on his section 1681e(b) and 1681i claims. Dennis has therefore waived his right to appeal summary judgment on all claims not specifically argued in his brief. See Entm't Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1217 (9th Cir.1997) ("We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim. . . . `Judges are not like pigs, hunting for truffles buried in briefs.'" (quoting Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir.1994))).

2. In its response to Dennis's interrogatories, Experian admitted that there had been no judgment entered against Dennis. Experian then moved to amend its response to strike that admission, and the district court granted the motion. Dennis opposed the motion, and lists this as one of the issues he wishes this court to review on appeal. But Dennis presents no legal argument on this point and has thus waived the right to appeal the district court's order. See n. 1 supra.

3. The dissent suggests that a conditional...