Hagan v. Bogatova

• Decision Date: 04 February 2019
• Docket Number: No. 2:17-cv-1219 MCE DB PS,2:17-cv-1219 MCE DB PS
• Court: U.S. District Court — Eastern District of California
• Parties: LESLIE HAGAN, Plaintiff, v. BRONISLAVA BOGATOVA, et al, Defendants.

LESLIE HAGAN, Plaintiff, v. BRONISLAVA BOGATOVA, et al, Defendants.

No. 2:17-cv-1219 MCE DB PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

February 4, 2019

FINDINGS AND RECOMMENDATIONS

Plaintiff Leslie Hagan is proceeding pro se. The case has been referred to the undersigned pursuant to Local Rule 302(c)(21). Pending before the undersigned is a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure filed by defendant Discover Products Inc., ("Discover"). (ECF No. 20.) For the reasons stated below, the undersigned finds that defendant's motion to dismiss should be granted and plaintiff's complaint dismissed without leave to amend.

BACKGROUND

Plaintiff, proceeding pro se, commenced this action on June 12, 2017, by filing a complaint and motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) The complaint alleges, in relevant part, that plaintiff's mother—Bronislava Bogatova—asked plaintiff to open a credit card

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//// account with the defendant in Bogatova's name. (Compl. (ECF No. 1) at 5-6.¹) Plaintiff did and Bogatova agreed that plaintiff "could use her credit cards as long as she wanted to so long as she paid the bill." (Id. at 6-7.)

In "late May and early June of 2016" plaintiff learned that "fraudulent fraud allegations" had been filed against plaintiff with defendant "Discover Card Services[.]" (Id. at 7.) Specifically, Bogatova "claimed that plaintiff had stolen her identity and that was how she became an authorized user on her credit card accounts." (Id. at 22.) Defendant then refused "to do a competent investigation[] and refuse[] any of Plaintiff's evidence by saying that it would not make any difference in their investigations." (Id. at 7.)

Thereafter, defendant "reversed all the charges to the vendors as fraudulent" causing plaintiff financial and emotional harm. (Id.) Specifically, defendant "had the charges reverse[d] for payment that had been made on the plaintiff's behalf to PayPal Services, State wide Storage, Pax Programs, Spring Corporation," and others. (Id. at 34.)

Based on these allegations the complaint alleges that the defendant violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., the California Consumer Credit Reporting Agencies Act, ("CCRAA"), California Civil Code § 1785.25(a), invasion of privacy, "negligent, wanton, and/or intentional hiring and supervision of incompetent employees," "negligent, wanton, and intentional conduct," unjust enrichment, and conspiracy. (Compl. (ECF No. 1) at 10-33.)

On October 16, 2017, the undersigned issued an order granting plaintiff's motion to proceed in forma pauperis and permitting service on defendant Discover.² (ECF No. 3.) Defendant filed the pending motion to dismiss on August 10, 2018. (ECF No. 14.) Plaintiff filed an opposition on September 7, 2018. (ECF No. 18.) Defendant filed a reply on September 28, 2018. (ECF No. 19.)

STANDARDS

I. Legal Standards Applicable to Motions to Dismiss Pursuant to Rule 12(b)(6)

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986).

While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 676 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

ANALYSIS

I. FCRA & CCRAA

Plaintiff's complaint purports to assert two separate claims pursuant to the FCRA, and a claim pursuant to § 1785.25(a) of the CCRAA, against defendant Discover. (Compl. (ECF No. 1) at 10, 13, 18.) The goal of the FCRA is "to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy." Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007). The

FCRA imposes a number of procedural requirements on consumer reporting agencies to regulate their creation and use of consumer reports. The statute gives consumers affected by a violation of such requirements a right to sue the responsible party, including the right to sue (and to recover statutory damages) for willful violations even if the consumer cannot show that the violation caused him to sustain any actual damages.

Robins v. Spokeo, Inc., 867 F.3d 1108, 1110-11 (9th Cir. 2017).

And California Civil Code § 1785.25(a) provides:

A person shall not furnish information on a specific transaction or experience to any consumer credit reporting agency if the person knows or should know the information is incomplete or inaccurate.

"[B]ecause the CCRAA 'is substantially based on the Federal Fair Credit Reporting Act, judicial interpretation of the federal provisions is persuasive authority and entitled to substantial weight when interpreting the California provisions.'" Carvalho v. Equifax Information Services, LLC, 629 F.3d 876, 889 (9th Cir. 2010) (quoting Olson v. Six Rivers Nat'l Bank, 111 Cal.App.4th 1, 3 (2003)). To allege a violation of §1785.25(a) the plaintiff must allege that the credit reporting agency ("CRA") furnished information that was patently incorrect or materially misleading. Id. at 890.

//// Here, however, the complaint is not actually asserting that defendant reported any inaccurate information on plaintiff's credit report. And plaintiff's opposition expressly acknowledges that "THERE ARE NO INACCURACIES ON PLAINTIFF'S CREDIT REPORT." (Pl.'s Opp.'n (ECF No. 18) at 4) (emphasis in original). Nor is plaintiff alleging that plaintiff had an account with the defendant or that the defendant failed to conduct any investigation into plaintiff's claims.

Instead, as stated above, the complaint alleges that plaintiff and plaintiff's mother—Bronislava Bogatova—entered into an agreement whereby plaintiff could use Bogatova's "Credit Discover . . . credit card[] in exchange for helping" Bogatova pay other financial obligations. (Compl. (ECF No. 1) at 6.) "Then in late May, 2016, early June 2016, Plaintiff discovered that fraudulent charges were filed against her with Discover," by Bogatova, claiming that Bogatova "never knew that she had ever had . . . a Discover Credit card, and just now discovered that [plaintiff] without her knowledge opened those credit cards." (Id. at 7, 9.) "Plaintiff never expect[ed] such behavior from her own mother especially when she helped her so much in the past." (Id. at 9.)

Plaintiff complains that defendant conducted an investigation and "reversed all the charges to the vendors as fraudulent," which was "extremely embarrassing[.]" (Id.) Moreover, defendant refused to "return all of [the] money and the interest that she paid to Discover Card Services while using Discover Credit Card" because defendant had determined that the charges "were fraudulent." (Id. at 10.)

In summary, plaintiff has alleged that plaintiff's mother allowed plaintiff to use the Discover credit card provided plaintiff paid her mother for the charges. Plaintiff's mother later reported plaintiff's use as fraudulent. Defendant investigated the complaint of its customer, and reversed the charges. Even accepting plaintiff's allegations as true, the complaint does not allege that the defendant violated the FCRA or CCRAA in any way, e.g., through inaccurate reporting, a failure to investigate, etc.

Instead, plaintiff simply disagrees with defendant's decision to reverse the vendors' charges after defendant's customer complained that the charges were the result of fraud, and withdefendant's refusal to pay plaintiff money that plaintiff alleges she paid her mother to pay the defendant. Those allegations, however, are not violations of the FCRA or the CCRAA.

Moreover, plaintiff's opposition argues that "although the Defendant . . . received a...