David Leoni v. Experian Information Solutions

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 14, 2021
• Docket: 19-17175
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 14 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID LEONI, No. 19-17175

Plaintiff-Appellant, D.C. No. 2:17-cv-01408-RFB-VCF v.

EXPERIAN INFORMATION MEMORANDUM* SOLUTIONS, INC.,

Defendant-Appellee,

Appeal from the United States District Court for the District of Nevada Richard F. Boulware II, District Judge, Presiding

Argued and Submitted October 5, 2020 Portland, Oregon

Before: PAEZ and RAWLINSON, Circuit Judges, and PREGERSON,** District Judge. Partial Concurrence and Partial Dissent by Judge PREGERSON

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. Appellant David Leoni (Leoni) appeals the district court’s grant of summary

judgment in favor of Appellee Experian Information Solutions, Inc. (Experian).

Reviewing de novo, we affirm. See Howard v. HMK Holdings, LLC, 988 F.3d

1185, 1189 (9th Cir. 2021). Leoni failed to raise a material issue of fact regarding

Experian’s violation of 15 U.S.C. §§ 1681g(a)(1) or e(b) of the Fair Credit

Reporting Act (FCRA). See Sonner v. Schwabe N. Am., Inc., 911 F.3d 989, 992

(9th Cir. 2018) (“To defeat summary judgment, the nonmoving party must produce

evidence of a genuine dispute of material fact that could satisfy its burden at trial.”)

(citations omitted). Moreover, assuming Experian negligently violated both

statutory provisions, we affirm the district court’s ruling that Leoni failed to

establish actual damages. See 15 U.S.C. § 1681o(a)(1).

On August 1, 2016, a bankruptcy court discharged a debt Leoni owed to

Military Star. Later that month, Leoni reviewed a copy of his Experian consumer

disclosure. The tradeline for Military Star incorrectly showed that Leoni still owed

the debt. At Leoni’s request, Experian investigated the matter and mailed Leoni a

reinvestigation report. Although Experian correctly reported that the Military Star

debt had been discharged, it incorrectly noted in the account history that the debt

had been “included in Chapter 13 Bankruptcy on November 08, 2016,” a date

2 following the discharge. Leoni premises his claims on the erroneous “included in”

bankruptcy date.

1. To establish a willful violation of the FCRA, Leoni was required to

demonstrate that Experian “knowingly violate[d] the statute or recklessly

disregard[ed] its requirements.” Ramirez v. TransUnion LLC, 951 F.3d 1008, 1031

(9th Cir. 2020). The record does not raise a material issue of fact that Experian

knowingly or recklessly changed the “included in bankruptcy” date. Experian’s

error was, at most, the result of negligence.

2. To prevail on a claim for negligent violation of the FCRA, Leoni

would have to establish that he suffered “actual damages.” See 15 U.S.C. §

1681o(a)(1); see also Dennis v. BEH-1, LLC, 520 F.3d 1066, 1069 (9th Cir. 2008),

as amended. Leoni’s asserted damages included: (1) he “avoided applying for

credit for fear of being denied”; (2) “the inaccurate information could serve as a

factor in Experian credit scores”; (3) he “suffered sleepless nights,” i.e., emotional

distress; (4) he incurred “transportation costs”; and (5) “lost time considering

issues related to the inaccurate credit reporting.” Leoni, however, failed to offer

proof of some of the asserted damages, and some of the categories are not

compensable.

3 First, Leoni admitted that he feared credit denials not because of the

“included in” bankruptcy date, but because of the bankruptcy on his record.

Second, Leoni points to no evidence in the record that the “included in

bankruptcy” date lowered his credit score, as opposed to the bankruptcy itself.

Third, Leoni also admitted that his sleeplessness was related “to the fact that

there’s a bankruptcy on [his] credit report” and the fact that his wife was “not

sleeping well, [so] I don’t sleep because I’m worried about her,” instead of

“anything specific[] to Military Star.” After Leoni’s attorney objected to that

question, Leoni added: “Which is connected -- the bankruptcy -- which is --

Military Star is included. It’s all that.” But this vague attempt to lump in the

Military Star tradeline with his bankruptcy as an added source of emotional

distress does not raise a genuine issue of material fact. See Filipino Yellow Pages,

Inc. v. Asian J. Publications, Inc., 198 F.3d 1143, 1152 (9th Cir. 1999) (holding

that vague testimony did not create a genuine issue of fact).

Fourth, Leoni cites no authority in support of his claim of damages for the

cost of traveling to his attorneys’ office or the time he spent reviewing the credit

reports. To the contrary, several district courts in this Circuit have declined to

recognize such expenses as damages when they were incurred for the sole purpose

4 of correcting inaccurate reporting. See, e.g., Moran v. Screening Pros, LLC, No.

2:12-cv-05808-SVW-AGR, 2020 WL 4724307, at *9 (C.D. Cal. July 30, 2020).1

Based on these rulings, we need not reach the class certification issue. See

Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1045 (9th Cir. 1999).

AFFIRMED.

1 We disagree with Leoni’s reliance on Ramirez to support his contention that “a plaintiff’s lost time for having to hire a lawyer is a cognizable actual damage.” In the context of a class certification motion, we rejected the argument that the proposed class representative “was not typical of the class because his injuries were more severe than the injuries suffered by the rest of the class.” Ramirez, 951 F.3d at 1033. One of the alleged “injuries” was the significant time he spent trying to correct the reporting issue and hiring a lawyer. Id. We did not hold that such an “injury” was compensable as actual damages. Rather, we only held that those facts did not defeat typicality. See id. 5 FILED JUN 14 2021 Leoni v. Experian Information Solutions, No. 19-17175 Pregerson, District Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

Although I concur with much of the majority’s disposition, I cannot agree

that there is no genuine issue as to Leoni’s emotional distress damages. Leoni’s

testimony that his worries were not related to “anything specific[] to Military Star”

is not dispositive. Because Experian’s reinvestigation report correctly indicated

that Leoni no longer owed a debt to Military Star, it stands to reason that he was

not concerned about “anything specific to Military Star.” As the majority

acknowledges, however, Leoni also testified that the Military Star tradeline and the

underlying bankruptcy were connected. Even assuming that it was the underlying

bankruptcy that so troubled Leoni, his worries could have been exacerbated by the

Military Star tradeline, which erroneously indicated a bankruptcy that would

remain on Leoni’s credit report until late 2023, when in fact the bankruptcy was

due to drop off of Leoni’s report in early 2018. Indeed, Leoni testified about his

frustration that his wife “wanted [improved credit] fast, and I told her I can’t help

you . . .. Because when can we get this credit done? When are we going to get a

better credit report? . . . I tell her it’s going to take a lot of time. And now I’m

frustrated. Now I can’t sleep. . . . Wait, just wait.” This testimony supports the

inference that Leoni suffered emotional damages as a result of the erroneous date

in the Military Star tradeline, and not just from the underlying bankruptcy alone.

Accordingly, I would reverse.