Pulver v. Avco Financial Services

Opinion

Plaintiff, Celestina Cortez Pulver, appeals from judgment of dismissal entered after the trial court sustained the demurrer of defendant, Avco Financial Services, to all causes of action of the third amended complaint without leave to amend.^[1]

Factual and Procedural Background

The third amended complaint contained four causes of action. The first cause of action, breach of implied covenant of good faith and fair dealing, alleged: Defendant is a corporation doing business as a lender. Plaintiff entered into written loan agreements with defendant in September 1977, November 1977, May 1978, November 1979 and January 1980. On or about September 1, 1979, defendant entered into a written loan agreement with plaintiff’s adult sister, Cathleen Cortez.^[2] Plaintiff was not a party to that agreement, was not a guarantor or cosignor thereof, and had no legal duties to defendant under its loan agreement with Cathleen Cortez. At all times defendant knew that the debt of Cathleen Cortez was not plaintiff’s debt and that defendant had no right to collect said debt from plaintiff. Despite such knowledge defendant maliciously did the following acts: Commencing in or about May 1980, and for many months thereafter, defendant tried to force plaintiff to pay Cathleen’s debt, threatened to damage plaintiff’s credit because of said debt, made harassing telephone calls and sent harassing and

On August 21, 1984, plaintiff filed notice of election to prosecute this appeal on an appendix in lieu of clerk’s transcript (Cal. Rules of Court, rule 5.1). The appendix was required to be filed within 70 days thereafter (rules 5.1(e), 16(a)), or by October 30, 1984, but was not filed until January 24, 1986, more than a year after the filing of the notice of election; it does not appear that plaintiff was granted an extension of time within which to file the appendix. Defendant moves to dismiss the appeal on the further ground of plaintiff’s tardiness in filing the record on appeal. (See rule 10(c).) Insofar as dismissal is sought on that ground the motion is denied, having been made more than two and a half months after the appendix was filed in this court. “No record other than that provided by the clerk’s transcript now on file will be required for determination of the appeal. The fact that the clerk’s transcript was on file at the time respondent’s motion for dismissal was presented is a sufficient reason for denying the motion.” (Steiner v. Davis (1937) 21 Cal.App.2d 334 , 335 [ 69 P.2d 184 ], See also Holmes v. Saunders (1952) 114 Cal.App.2d 389 , 391 [ 250 P.2d 289 ]; Walker v. Etcheverry (1940) 39 Cal.App.2d 188 , 189 [ 102 P.2d 758 ].)

As the final ground of its motion to dismiss the appeal, defendant notes that the appendix contains material which is not part of the record in

The federal act provides: “Any consumer reporting agency or user of information which willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer . . . .” (15 U.S.C. § 1681n; italics added.) Liability for negligent noncompliance is imposed in the same language. (§ 1681o.) Thus, liability is limited to consumer reporting agencies^[5] or users of information furnished by consumer reporting agencies. Plaintiff did not allege that defendant is either a consumer reporting agency or a user of information furnished by such agency. Instead, it was alleged that defendant “reported” to credit reporting agencies that plaintiff failed to pay her sister’s debt. Parties who do no more than furnish information to a credit reporting agency are not covered by the federal act. (Rush v. Macy’s New York, Inc. (11th Cir. 1985) 775 F.2d 1554 , 1557; Mitchell v. First Nat. Bank of Dozier (M.D.Ala. 1981) 505 F.Supp. 176 , 177-178.)

The California act provides: “Any applicant who suffers damages as a result of a violation of this title by any person, may bring an action in a court of appropriate jurisdiction against such person . . . .” (Civ. Code, § 1785.31, subd. (a); italics added.) This provision gives the consumer an action for damages against a credit reporting agency or a user of information for violation of its provisions (2 Witkin, Summary of Cal. Law (8th ed. 1984 Supp.) Sales, § 260A, p. 255); it does not extend liability to one who furnishes information to a credit reporting agency. Such conclusion is supported by the provisions of the act, which defines “person” as “any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity.” (Civ.

The California act further provides: “Except as provided in Section 1785.31, no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy or negligence with respect to the reporting of information against any consumer reporting agency, any user of information, or any person who furnishes information to a consumer reporting agency, based on information disclosed pursuant to Sections 1785.10 [inspection of files by consumer], 1785.15 [time and manner of supplying files and information] or 1785.20 [disclosure to consumer of source of report and nature of information] of this title, except as to false information furnished with malice or willful intent to injure such consumer.” (Civ. Code, § 1785.32; italics added.) In construing a provision of the federal act (15 U.S.C. § 1681h(e))^[6] identical to the foregoing statute in all material respects, the United States District Court rejected the contention that such provision creates a cause of action against a person who furnishes false information to a consumer reporting agency with the specified intent. Said the court: “. . . Congress intended that the section invoked by plaintiff be used as a shield against actions at common law, when the information giving rise to the cause of action is obtained by the complainant pursuant to the provisions of the Act. Congress created an exception to this shield when information is ‘furnished with malice or willful intent to injure,’ but no basis exists for altering the shield of § 1681h(e) into the sword now sought by the plaintiff. Section 1681h(e) addresses itself only to the availability of state causes of action when the basis of those suits rests on information disclosed pursuant to the Act.” (Mitchell v. First Nat. Bank of Dozier, supra, 505 F.Supp. 176 , 178.) It is presumed the Legislature intended that

B. Statute of Limitations

Defendant demurred to the second and third causes of action (intentional infliction of emotional distress and defamation of character, respectively) on the ground they are barred by the one-year statute of limitations. (Code Civ. Proc., § 340, subd. (3); see also Scannell v. County of Riverside (1984) 152 Cal.App.3d 596 , 616 [ 199 Cal.Rptr. 644 ]; Edwards v. Fresno Community Hosp. (1974) 38 Cal.App.3d 702 , 705 [ 113 Cal.Rptr. 579 , 3 A.L.R.4th 1209 ].)

The complaint herein was filed in November 1981.^[7] The second and third causes of action of the third amended complaint alleged that “commencing in approximately May, 1980 . . . and thereafter continuing] for a period of many months [and] . . . over a period of at least one year after May of 1980,” defendant engaged in the conduct which forms the basis of those causes of action. The second amended complaint alleged that such conduct commenced in approximately December 1979 and continued “for a period of several months [and]. . . over a period of at least one year after December of 1979.” Inasmuch as a party may not amend a pleading to contradict an allegation made in an earlier version of the pleading (see Liptak v. Diane Apartments, Inc. (1980) 109 Cal.App.3d 762 , 775 [ 167 Cal.Rptr. 440 ]), plaintiff is bound by the latter allegation. Nevertheless, the demurrer to the second and third causes of action cannot be upheld on the basis of the one-year limitation period of section 340, subdivision (3). “‘[A] demurrer on the ground of the bar of the statute of limitations does not lie where the complaint merely shows that the action may have been barred. It must appear affirmatively that, upon the facts stated, the right of action is necessarily barred.’ [Citations.]” (Valvo v. University of Southern California (1977) 67 Cal.App.3d 887 , 895 [ 136 Cal.Rptr. 865 ]; see also Moseley v. Abrams (1985) 170 Cal.App.3d 355 , 359-360 [ 216 Cal.Rptr. 40 ]; Baright v. Willis (1984) 151 Cal.App.3d 303 , 311 [ 198 Cal.Rptr. 510 ].) Inasmuch as the second and third causes of action alleged that defendant’s conduct continued for a period of at least one year after December 1979, it does not appear affirmatively that such causes of action necessarily are barred by limitations. “The broad allegation of time may be the product of imaginative

The demurrer to the second cause of action was improperly sustained.

Demurrer to Third Cause of Action

Defendant demurred to the third cause of action (defamation of character) on the ground defendant’s alleged report to credit reporting agencies regarding plaintiff’s failure to pay her sister’s debt is not defamatory on its face and no extrinsic facts are pleaded to show its defamatory meaning.

Defamation may be effected by either libel or slander. (Civ. Code, § 44.) The allegations of the third amended complaint do not disclose which form defendant’s report took.^[8] Libel is “a false and unprivileged publication by writing . . . which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civ. Code, § 45.) Whether or not a writing is reasonably susceptible of a defamatory meaning is a question for the court. (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536 , 546 [ 343 P.2d 36 ].) In making that

The third cause of action alleged that defendant falsely “reported] to the credit reporting agencies that plaintiff had not made payments on a debt which was not hers .... [Defendant] in fact knew that plaintiff was not responsible for the debt and [its] actions in stating the contrary to the credit reporting agencies were not only false but were malicious and were done with the willful intent to injure the plaintiff.” While it is normally defamatory on its face to say that a person refuses to pay his just debts (see Information Control v. Genesis One Computer Corp. (9th Cir. 1980) 611 F.2d 781 , 783; Ingraham v. Lyon (1894) 105 Cal. 254 , 257 [ 38 P. 892 ]), the same is not true of refusal to pay the debt of another, at least in the absence of a showing that such debt was the responsibility of the one refusing to pay it. Plaintiff alleged that defendant told the credit reporting agencies plaintiff was responsible for the debt which she refused to pay. Accordingly, while the alleged content of the report is not defamatory on its face, extrinsic facts were pleaded which show its defamatory meaning.

Civil Code section 45a provides: “A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code.” (Italics added.) Plaintiff sufficiently pleaded special damages^[9] by alleging that as a result of defendant’s report to credit reporting agencies she was denied credit, suffered permanent damage to her credit rating, sustained economic damage because of her inability to obtain credit for the purchase of goods and services, and incurred loss of earnings and earning capacity. Accordingly, a cause of action for libel is stated even though the alleged content of