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[U] Credit Research, Inc. v. Experian Information Solutions, Inc., No. H024220 (Cal.App. Dist.6 09/16/2003)
September 16, 2003
(Monterey County Super. Ct. No. M47960)
The opinion of the court was delivered by: Premo, Acting P.J.
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant Experian Information Solutions, Inc. (Experian) is one of three national credit reporting agencies. Plaintiff Credit Research, Inc. purchased Experian credit information pursuant to a written contract between plaintiff and Experian's local affiliate, defendant Credit Bureau Reports of Fresno, Inc. (CBRF). Plaintiff resold the credit information to its business customers and to individual consumers who wanted copies of their own credit reports. For security reasons Experian did not permit direct-to-consumer sales without specific authorization. Plaintiff never obtained that authorization and in spite of warnings that such sales were not permitted, continued to sell personal credit reports directly to consumers. As a result Experian cut off plaintiff's access to its database.
Plaintiff sued Experian, CBRF, and their affiliated entities. The trial court granted summary judgment for all defendants. On appeal plaintiff contends that there are triable issues of fact as to whether its contract with CBRF may be read as permitting direct-to-consumer sales and whether Experian's conduct in cutting off plaintiff's access was improper. We conclude that summary judgment was properly granted and affirm.
A. Factual Background
The factual background of this matter is largely undisputed. Experian, like its two national counterparts Trans Union and Equifax, maintains a database of consumer credit information and issues credit reports as allowed by the Fair Credit Reporting Act (15 U.S.C. 1681-1681t) (FCRA) and the California Consumer Credit Reporting Agencies Act (Civ. Code, 1785.1-1785.35) (CCRAA). Experian also sells information from its database through local affiliates. The local affiliates are independent credit reporting agencies that maintain their own credit files and contract with Experian to store those files on Experian's automated credit reporting system. Some purchasers of Experian data, such as lending institutions and other businesses, use the information themselves to evaluate the credit worthiness of potential borrowers or for other legitimate business reasons. Other customers obtain the data for the purpose of reselling it to their own customers. In addition, consumers may obtain their own credit information.
In order to safely transmit consumer credit reports directly to the consumer who is the subject of the report, the credit reporting agency must utilize rigorous procedures to verify the identity of the person requesting the report. Experian permitted its subscribers who were resellers of its data to sell directly to consumers only if the reseller first obtained Experian's specific authorization to do so. The reason for that was to assure Experian that the reseller's authentication procedures were sufficiently rigorous to verify that the person requesting the information was in fact the consumer he or she purported to be. Experian required its affiliates to exercise the same degree of oversight with respect to their subscribers who were resellers.
Plaintiff obtained information from the Experian database through CBRF or its predecessor, Credit Bureau of Salinas, and also through other Experian affiliates. In this way plaintiff had been utilizing Experian's national database since 1986. There is no evidence that plaintiff ever asked for authorization to sell directly to consumers. Yet in December 1995 Experian discovered that plaintiff was doing just that. Experian informed CBRF that its subscriber was reselling Experian data without authorization. Experian warned CBRF that it would block plaintiff's access to the database unless plaintiff stopped the unauthorized resale activities. Experian was informed that plaintiff stopped its direct sales to consumers.
Plaintiff executed a new contract with CBRF in 1997. Pursuant to that contract plaintiff promised that it would comply with all the provisions of the FCRA and that the information it requested would be used "solely for a permissible purpose, namely:
"(A) In connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer; or
"(B) For employment purposes . . . ; or
"(C) In connection with the underwriting of insurance . . . ; or
"(D) In connection with a legitimate business need for the information in connection with a business transaction initiated by the consumer or to review an account to determine whether the consumer continues to meet the terms of the account . . . ; or
"(E) In connection with a determination of the consumer's eligibility for a license or other benefit granted by a governmental instrumentality . . . ; or
"(F) As a potential investor or servicer, or current insurer, in connection with a valuation of, or an assessment of the credit or prepayment risks associated with, an existing credit obligation."
Notably absent from this list of six permissible purposes is the purpose of selling personal credit reports directly to consumers.
On January 24, 2000 an Experian compliance officer surfing the Internet discovered that plaintiff was selling information to consumers through its website. Experian alerted CBRF's general manager, Al Matteucci to the problem. Matteucci contacted plaintiff's president, Cliff Mortensen that same day or the day after and told Mortensen "which I had stated in many conversations, that he could not sell Experian credit reports to consumers without Experian's approval." Matteucci told Mortensen to contact Experian's sales representative Dan Haggarty to get that approval. *fn1 There is no evidence that Mortensen ever contacted Haggarty for this purpose.
On January 27, 2000, a day or two after Matteucci's conversation with Mortensen, Matteucci faxed Mortensen new subscriber contracts. Mortensen signed the documents and returned them to Matteucci. The "Application for Membership" asked plaintiff to identify the "Specific Purposes For Which Credit Information Will Be Used." Mortensen identified "Credit Transactions," "Leasing," "Refinancing," "Rentals," and "Mortgage Credit Reports." The "Membership Contract" and the "Reseller Contract" both listed the same six permissible purposes listed in the 1997 Membership Contract. None of these documents listed direct sales to consumers as a permissible purpose.
During the last week of January 2000 Experian's compliance specialist checked the plaintiff's website again and noted that it no longer advertised direct-to-consumer credit reports. But on February 19, 2000, Marianne Birkinshaw, Experian's senior compliance specialist, discovered a new advertisement on plaintiff's website offering to sell personal credit reports directly to consumers. As part of her investigation Birkinshaw applied for a personal credit report through the website. She used the name of a fictional consumer, Robin Banks, for whom Experian maintained a dummy credit file for use in performing security tests. Three days later, plaintiff (or plaintiff's own subscriber, Credit Bureau of Monterey Bay) accessed the dummy file to obtain the Robin Banks credit information. Plaintiff (or its subscriber) identified the end user not as Robin Banks but as "Credit Bureau Monterey B[ay]." In addition, the requester certified that the purpose was "real estate transaction," not "in accordance with the consumer's written instruction," which was in fact what it was. Birkinshaw consulted with Matteucci who told her that plaintiff was not approved for direct-to-consumer sales. In addition, Birkinshaw obtained a copy of the Reseller Contract between plaintiff and CBRF. The copy Birkinshaw received indicated to her that plaintiff was approved only to resell for the purpose of credit transactions-the purpose listed under the letter "A" on the list of permissible purposes. Having confirmed that plaintiff was not authorized for direct-to-consumer sales, Birkinshaw placed the access code that CBRF has issued to plaintiff "on hold." This action prevented plaintiff from obtaining any information in the Experian database.
In August 2000 Birkinshaw learned that plaintiff was obtaining Experian data through another Experian affiliate, Fidelity National Credit Services. Birkinshaw immediately placed plaintiff's new access code "on hold." *fn2
B.Procedural Summary
Plaintiff's business had consisted largely of the sale of "tri-merge" reports. As the name implies, a tri-merge report blends the information of all three national credit reporting agencies. Many of plaintiff's customers, mortgage lenders in particular, were not satisfied with credit reports from only one of the three agencies and demanded tri-merge reports. Without access to the Experian database plaintiff could not continue in the same business. Plaintiff sued Experian and its Information Solutions Division (collectively Experian), CBRF, Credit Bureau of Salinas, and their parent company, CBC, Inc. (collectively Credit Bureaus).
Plaintiff alleged causes of action sounding in contract and tort and sought damages and injunctive relief. Plaintiff's first amended complaint contained eight causes of action: (1) breach of contract; (2) interference with prospective economic advantage and contract; (3) unfair competition and unfair trade practices; (4) injunction; (5) fraud (against Credit Bureau); (6) negligent misrepresentation (against Credit Bureau); (7) negligence (against Experian); and (8) violation of Civil Code section 1785.11 et seq. (against Experian). All defendants raised the affirmative defense of justification.
Defendants moved for summary judgment or in the alternative, summary adjudication. Plaintiff responded by dismissing the first and eighth causes of action against Experian. Plaintiff opposed the remainder of defendants' motions primarily on the ground that Mortensen believed that the contracts he signed permitted direct-to-consumer sales.
The trial court concluded that Experian had no duty to give plaintiff access to its database and that its decision to terminate plaintiff's access was justified by a legitimate business purpose. As to the Credit Bureaus, the trial court determined that they had no obligation under the written contracts to provide plaintiff with access to Experian's database and that Experian, not the Credit Bureaus, terminated that access in any event. The court also concluded that there was no evidence of wrongful conduct to support plaintiff's tort causes of action. These conclusions were dispositive of the substantive causes of action and eliminated the only basis for injunctive relief. The trial court granted both motions for summary judgment. Judgment was entered and this appeal followed.
C. Discussion
Any party may move for summary judgment in an action if it is contended that the action has no merit. (Code Civ. Proc., 437c, subd. (a).) A defendant seeking summary judgment bears the initial burden of proving the cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense to it. (Code Civ. Proc., 437c, subds. (a), (o)(2); Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 213.) On an appeal from summary judgment we review the record de novo. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1001.) Because our review is de novo, if summary judgment was proper, even if granted for an incorrect reason, we affirm. (Barkley v. City of Blue Lake (1996) 47 Cal.App.4th 309, 313.)
"In undertaking our independent review of the evidence submitted, we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue. [Citation.]" (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)
1. First Cause of Action for Breach of Contract
In their moving papers Credit Bureaus offered evidence that Experian, not CBRF, had decided to terminate plaintiff's access and that CBRF was powerless to change that. Indeed, Matteucci did not want to deny plaintiff access to the Experian information because plaintiff was one of his biggest accounts.
Impossibility or impracticability is an excuse for failure to perform on a contract. According to the Second Restatement: "Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary." (Rest.,2d Contracts, 261, p. 313; and see Johnson v. Atkins (1942) 53 Cal.App.2d 430, 433.) Experian's willingness to permit access to its database was a basic assumption of the contract between plaintiff and CBRF. CBRF could not supply plaintiff with the data it desired if Experian would not permit it. Thus, Credit Bureaus established a complete defense to the first cause of action.
In opposition plaintiff argued that the contracts were ambiguous and internally inconsistent and, in effect, that there was a triable issue of fact as to whether they permitted direct-to-consumer sales. In considering this argument we apply the well settled rules of contract interpretation. "In construing a contract, the question whether an uncertainty or ambiguity exists is one of law." (Brant v. California Dairies, Inc. (1935) 4 Cal.2d 128, 133.) "Our rules governing interpretation of contracts . . . teach us that the overriding goal of interpretation is to give effect to the parties' mutual intentions as of the time of contracting. (Civ. Code, 1636.) Where contract language is clear and explicit and does not lead to absurd results, we ascertain intent from the written terms and go no further. ([Civ. Code,] 1638, 1639; Helfand v. National Union Fire Ins. Co. (1992) 10 Cal.App.4th 869, 879.)" (Ticor Title Ins. Co. v. Employers Ins. of Wausau (1995) 40 Cal.App.4th 1699, 1707, fn. omitted.) " `The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.' (Civ. Code, 1641; see also City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 473.) `Courts must interpret contractual language in a manner which gives force and effect to every provision, and not in a way which renders some clauses nugatory, inoperative or meaningless.' (City of Atascadero, supra, at p. 473; see also [Code Civ. Proc.,] 1858.)" (Ratcliff Architects v. Vanir Construction Management, Inc. (2001) 88 Cal.App.4th 595, 601-602.)
Applying these rules, we begin by considering the plain language of the written contract between plaintiff and CBRF. We concentrate on the Reseller Contract because it is the resale aspect of the relationship that is pertinent here. The 2000 Reseller Contract states in pertinent part:
"The Reseller certifies that inquiries will be made only for the purposes of credit granting or other purposes defined by [FCRA] as permissible, . . .
"That all information or reports requested from the Credit Bureau, whether written, printed or oral will be requested only in strict conformity to the [FCRA] and other applicable statutes, state or federal, and disseminated to the Reseller's customers or subscribers only in strict conformity to law(s).
"That each time a request for information or a credit report is made of the Credit Bureau, the Reseller's representative authorized to make such a request will certify, as set forth below, the purpose of the report, which shall be only when the ultimate recipient intends to use the information solely for a permissible purpose, namely: [the six purposes listed in the 1997 contract]."
The FCRA includes several permissible purposes for obtaining consumer credit information in addition to those listed in the Reseller Contract. *fn3 The first paragraph from the contract that we have quoted above requires the reseller to certify that it will only make inquiries for purposes that are permitted by the FCRA. Standing alone that requirement only limits the reseller to the permissible purposes listed in the FCRA. However, considering the contract as a whole, it is clear that the reseller is limited to six permissible purposes.
Although none of the contracts expressly prohibits sales directly to consumers, they all specifically limit the reseller to the purposes listed. The 2000 Reseller Contract uses limiting language three times in the preamble to the listed purposes, i.e., the reseller certifies that the purpose of the reports "shall be only when the ultimate recipient intends to use the information solely for a permissible purpose, namely [the following six purposes]." (Italics added.) The list of six purposes repeats nearly verbatim the six permissible purposes listed in the FCRA at subdivision (a)(3)(A) through (F) of 15 U.S.C. section 1681b. These purposes involve only those instances where the end user of the information is the lender or other entity with which a consumer seeks to do business. Conspicuously absent from the purposes listed in the contracts is the purpose specified at subdivision (a)(2) of that section: "In accordance with the written instructions of the consumer to whom it relates." There is nothing in the FCRA to prevent a consumer credit reporting agency such as Experian or CBRF from limiting its sales to other resellers for specified end uses. Therefore, read as a whole the contract provides that the reseller may obtain credit information for the six purposes listed and may not seek credit information for the purpose of satisfying "the written instructions of the consumer to whom it relates."
We reject the contention that Mortensen's subjective belief (that the only prohibitions in the contracts were those contained in the FCRA) is sufficient to raise a triable issue of fact. It is a settled principle of contract law that where there is no ambiguity in the contract, absent mistake or fraud the undisclosed intentions of the parties are immaterial. (Brant v. California Dairies, supra, 4 Cal.2d at p. 133.) No showing of mistake or fraud is made here. Mortensen does not deny that Matteucci told him in January 2000 that in order to sell directly to consumers he had to contact the Experian sales representative. Nor does he deny that Matteucci had warned him in the past that Experian did not permit such sales without authorization. Only six purposes are listed in the membership and reseller contracts. Mortensen himself specified only five purposes in the Application for Membership. None of the documents list direct-to-consumer sales as a permissible purpose. Mortensen's declaration of his subjective belief is in direct conflict with the plain meaning of the contracts and was therefore incompetent and inadmissible under the parol evidence rule. (See Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 22-23.)
Plaintiff further argues that Matteucci altered the contracts after Mortensen signed them and that this conduct is material to our interpretation of the contract. Plaintiff refers to a mark Matteucci concedes that he made upon the Reseller Contract. When Mortensen returned the January 2000 contracts to CBRF Matteucci noticed that Mortensen had not circled letter "A" in the list of permissible purposes. It was Matteucci's understanding that plaintiff's agreement was that it was to access the credit database only for the purpose listed as "A" in the contracts, that is, "[i]n connection with a credit transaction." Matteucci circled the "A" then put the contracts away. When he sent a copy of the contract to Birkinshaw, Birkinshaw interpreted it to mean that plaintiff was approved to resell for credit transactions only. Plaintiff now claims that in so doing Matteucci altered the meaning of the contracts and breached the covenant of good faith and fair dealing by misrepresenting the contract to Birkinshaw. The problem with this argument is that Birkinshaw's sole concern was whether plaintiff was approved for direct-to-consumer sales. Even without Matteucci's circle, the meaning of the contracts unambiguously limits plaintiff to the six listed purposes. Thus, even if Matteucci improperly tried to further limit the uses to which plaintiff could put the data, the fact is not material here.
Plaintiff also argues that the FCRA requires a consumer reporting agency to give a credit report to a consumer whenever the consumer requests it. Plaintiff relies on the following provision of the FCRA: "Every consumer reporting agency shall, upon request, and subject to section 1681h(a)(1) of this title, clearly and accurately disclose to the consumer: [] (1) All information in the consumer's file at the time of the request, . . ." (15 U.S.C. 1681g(a)(1).) The plain language of this section means that a consumer credit reporting agency must furnish a consumer with that which exists in its own files when the request is made. This is not a requirement that one agency must be able to retrieve information from another agency in order to give it to the consumer.
In sum, there is nothing in the contracts or the FCRA that permitted or required plaintiff to sell credit reports directly to consumers. Matteucci's representation to that effect was accurate. CBRF's inability to perform under the contracts was not due to any fault of its own. Rather, it was plaintiff's own unauthorized use of the credit information that caused Experian to block access, which, in turn, made it impossible for CBRF to perform. Accordingly, CBRF and its associated entities are excused from performance and there can have been no breach of contract. The trial court did not err in finding no triable issue of fact as to this cause of action.
2. Second Cause of Action-Interference with Economic Relations *fn4
In its moving papers Experian sought to prove that it had no duty to provide plaintiff with access to its database and that in any event it was justified in terminating that access. The trial court agreed with both points. We find the latter to be dispositive.
Plaintiff combined two different torts in its second cause of action-interference with prospective economic advantage and intentional interference with contract. As to the first, plaintiff must prove as part of its prima facie case that defendant's interference was "wrongful by some legal measure other than the fact of interference itself." (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393.) Wrongfulness is not an element of the tort of interference with contract. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55.) However, justification or privilege is a complete defense to it. "Such justification exists when a person induces a breach of contract to protect an interest that has greater social value than insuring the stability of the contract." (Imperial Ice Co. v. Rossier (1941) 18 Cal.2d 33, 35; and see Rest.,2d Torts, 767 listing factors used to determine whether alleged interference is improper.) Accordingly, unless plaintiff can raise a triable issue of fact concerning the wrongfulness of Experian's conduct in terminating access to its database, this cause of action must fail regardless of the specific tort it purports to assert.
The FCRA and CCRAA place the highest value on the protection and confidentiality of consumer credit information. The CCRAA includes among its purposes the "need to insure that consumer credit reporting agencies exercise their grave responsibilities with . . . a respect for the consumer's right to privacy." (Civ. Code, 1785.1, subd. (c); and see 15 U.S.C., 1681(a)(4).) The FCRA requires: "Every consumer reporting agency shall maintain reasonable procedures designed to avoid violations of section 1681c of this title [pertaining to information contained in credit reports] and to limit the furnishing of consumer reports to the purposes listed under section 1681b of this title. These procedures shall require that prospective users of the information identify themselves, certify the purposes for which the information is sought, and certify that the information will be used for no other purpose. Every consumer reporting agency shall make a reasonable effort to verify the identity of a new prospective user and the uses certified by such prospective user prior to furnishing such user a consumer report. No consumer reporting agency may furnish a consumer report to any person if it has reasonable grounds for believing that the consumer report will not be used for a purpose listed in section 1681b of this title." (15 U.S.C. 1681e(a).)
Experian established that it had a policy prohibiting resellers from selling Experian information directly to consumers unless Experian was satisfied that the reseller used adequate procedures to verify a consumer's identity. Experian also established that it required its affiliates to deal with their subscribers who were resellers in the same manner. These policies are consistent with the public policy codified in the FCRA and CCRAA. Experian further demonstrated that plaintiff made direct-to-consumer sales without authorization from either Experian or CBRF and that it had done so on more than one occasion in spite of warnings that such sales would not be tolerated. Thus, Experian demonstrated that its policies were designed to advance the public interest in maintaining the privacy of consumer credit files, that plaintiff knowingly breached those policies, and therefore that Experian was justified in terminating plaintiff's access to the credit files.
Plaintiff cites several reasons why there is a triable issue with respect to the wrongfulness of Experian's conduct. We may pass without comment the argument that plaintiff's contracts permitted direct sales since we have already concluded that they did not. Plaintiff's other contentions are that its subscriber, Credit Bureau of Monterey Bay could be considered the end-user of the Robin Banks credit information because it prepared the tri-merge reports that plaintiff sold and the reason "real estate transaction" was identified as the purpose of the Robin Banks inquiry was because Birkinshaw must have entered the website through the lender portal. Neither point is helpful to plaintiff's cause.
It is undisputed that plaintiff solicited Robin Banks by offering to sell her a personal credit report. It is also undisputed that plaintiff, either directly or indirectly through its subscriber Credit Bureau of Monterey Bay, queried the Experian database for Robin Banks' file in order to make a direct sale to her. That was the crucial aspect of the conduct for which its access was terminated. Thus, if there is a factual dispute as to the veracity of the certifications plaintiff made in obtaining the information, the dispute is not material. Furthermore, if as plaintiff claims the permissible purpose was designated as "real estate transaction" because Birkinshaw had entered the website through the lender portal, that merely shows that plaintiff did not utilize procedures that were stringent enough to insure the identity and purpose of every inquiry, reinforcing the justification for terminating plaintiff's access to confidential files. Therefore, to the extent Experian interfered with plaintiff's existing or future economic expectations, the interference was not wrongful. The trial court did not err in concluding that there was no triable issue of material fact as to this cause of action.
3. Fifth and Sixth Causes of Action-Fraud and Negligent Misrepresentation
The entire basis for plaintiff's fraud and negligent misrepresentation claims is the evidence that Matteucci circled the "A" on the 2000 Reseller Contract without telling Mortensen. That fact, however, cannot establish an element crucial to both torts-a material misrepresentation. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638; see also Civ. Code, 1709, 1710.) There is no evidence that Matteucci ever represented that the 2000 Reseller Contract permitted direct-to-consumer sales or that he failed to disclose that they did not permit such sales. Indeed, plaintiff concedes that Matteucci told Mortensen only a couple of days before he sent him the contract that Mortensen had to speak with Experian's sales representative if he wanted authorization for such sales. Furthermore, even if Matteucci had fraudulently intended to exclude some of the permissible purposes listed in the contract, the written contract never included direct-to-consumer sales in the first place. Thus, if Matteucci concealed anything, it was not material to the issue at hand. Accordingly, the trial court did not err in concluding that plaintiff could not, as a matter of law, establish the fifth and sixth causes of action.
4. Seventh Cause of Action-Negligence
Finally, plaintiff's cause of action for negligence concerned Birkinshaw's investigation. Plaintiff alleged that Birkinshaw's investigation was negligent in that she failed to interview any principals in plaintiff's business. However, plaintiff did not produce any facts to show how that investigation caused its alleged damage. Plaintiff does not dispute that it made direct-to-consumer sales and that is precisely what the Birkenshaw investigation uncovered and that is the reason plaintiff's access was terminated. Regardless of whether the investigation was as meticulous as plaintiff believes it should have been, it uncovered a truthful, valid basis for preventing plaintiff from gaining access to Experian files. These undisputed facts do not constitute any legally cognizable claim. Accordingly, the trial court did not err in rejecting it.
5. Injunctive Relief
Since plaintiff's request for injunctive relief (denominated in the complaint as the fourth cause of action) was based upon the wrongful acts alleged in its other causes of action, the trial court was correct in rejecting this claim as well.
A. Disposition
The judgment is affirmed.
Elia, J.
Bamattre-Manoukian, J.

Opinion Footnotes

*fn1 Mortensen disputes the characterization of this conversation, stating that Matteucci told him Experian would permit direct-to-consumer sales, all Mortensen had to do was to contact Haggarty. Notwithstanding Mortensen's perspective, the substance and timing of the conversation is undisputed.
*fn2 The record and plaintiff's opening brief contain several references to a dispute over the domain name, "" We have not discussed that controversy in our factual summary as it is unrelated to any of the issues on appeal.
*fn3 15 U.S.C. section 1681b(a) reads in pertinent part: "(a) In general.- Subject to subsection (c) of this section, any consumer reporting agency may furnish a consumer report under the following circumstances and no other: "(1) In response to the order of a court having jurisdiction to issue such an order, . . . "(2) In accordance with the written instructions of the consumer to whom it relates. "(3) To a person which it has reason to believe- "(A) intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer; or "(B) intends to use the information for employment purposes; or "(C) intends to use the information in connection with the underwriting of insurance involving the consumer; or "(D) intends to use the information in connection with a determination of the consumer's eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant's financial responsibility or status; or "(E) intends to use the information, as a potential investor or servicer, or current insurer, in connection with a valuation of, or an assessment of the credit or prepayment risks associated with, an existing credit obligation; or "(F) otherwise has a legitimate business need for the information- - "(i) in connection with a business transaction that is initiated by the consumer; or "(ii) to review an account to determine whether the consumer continues to meet the terms of the account. "(4) In response to a request by the head of a State or local child support enforcement agency . . . [under specified circumstances]; [] . . . [] "(5) To an agency administering a State plan under section 654 of Title 42 for use to set an initial or modified child support award." (Italics added.)
*fn4 On appeal plaintiff directs its argument on the second cause of action to the Experian defendants only. Plaintiff's opening brief abandons its third cause of action altogether. We shall restrict our discussion accordingly. (See Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1345, fn. 6.)

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