assuming that “credit reports are commercial speech” and collecting cases that show “other courts have treated credit reports as commercial speech.”
How later courts described this case
- assuming that “credit reports are commercial speech” and collecting cases that show “other courts have treated credit reports as commercial speech.”
Written by the judges who cited it.
The opinion
ARMSTRONG, J., Dissenting.—I respectfully dissent.
According to the complaint in this action, U.D. Registry, Inc. (UDR) is a credit reporting agency serving the rental housing industry: “In order to assist landlords, property managers and others in determining the eligibility of a consumer for hiring of a dwelling, UDR maintains a database on unlawful detainers and other public records on tens of millions of prospective tenants throughout the state of California and other states.”
UDR brought this lawsuit against the State of California to enjoin the enforcement of Civil Code section 1785.11.2 (the Freeze Statute) because, among other things, the statute “on its face, unconstitutionally limits UDR’s right to discuss all judicial proceedings . . .” and thus “by its own terms abridges the right of free speech with respect to this Plaintiff and others similarly situated in direct contravention of both the California and Federal Constitutions.” As UDR explained in its trial brief, “At issue in this case is whether a State may pass and enforce a statute that gives consumers the right to completely suppress the dissemination of truthful and lawfully obtained public record information by third parties about entirely lawful activity in order to provide consumers a greater right to privacy and control over information that is already within the public domain.”
In U.D. Registry, Inc. v. State of California (1995) 34 Cal.App.4th 107 [ 40 Cal.Rptr.2d 228 ] (UDR I), our colleagues in Division Four of this District Court of Appeal unequivocally answered this question, ruling that Civil Code section 1785.13, subdivision (a)(3), 1 the statute there in question, violated UDR’s First Amendment rights “because it prohibits truthful reporting of ‘information contained in court files that are fully available to the public and which *432 can be freely reported and copied by any other person, entity or member of the media.’ ” (34 Cal.App.4th at pp. 110-116.)
Like the statute at issue in UDR I, the Freeze Statute, prohibits the “truthful reporting of ‘information contained in court files that are fully available to the public and which can be freely reported and copied by any other person, entity or member of the media.’ ” (UDR I, supra, 34 Cal.App.4th at p. 110 .) Consequently, it is, as the trial court found, facially unconstitutional.
Contrary to the majority, I agree with the trial court that the Freeze Statute may be reformed to preserve it against invalidation. Under California law, “[i]nvalid provisions of a statute should be severed whenever possible to preserve the validity of the remainder of the statute. [Citations.]” (Briseno v. City of Santa Ana (1992) 6 Cal.App.4th 1378, 1384 [ 8 Cal.Rptr.2d 486 ].) As our Supreme Court has explained: “. . . a court may reform—i.e., ‘rewrite’—a statute in order to preserve it against invalidation under the Constitution, when we can say with confidence that (i) it is possible to reform the statute in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred the reformed construction to invalidation of the statute.” (Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 660-661 [ 47 Cal.Rptr.2d 108 , 905 P.2d 1248 ].)
The purpose of the Freeze Statute is to prevent identity thieves from obtaining new credit by preventing a prospective credit issuer from reviewing the victim’s credit history, and thus using the victim’s good credit history to extend new credit to a thief. I believe that this purpose would be closely effectuated by the trial court’s reformation, which in effect excised the ineffective method of preventing identity theft (prohibiting the dissemination of public credit information, such as unlawful detainer actions and bankruptcy filing, which would disincline a creditor to extend new credit, and is thus useless to a thief) while leaving intact the effective method (prohibiting dissemination of private credit information). Moreover, “[t]here is no persuasive reason to suppose” that the inclusion of public credit information “was so critical to the enactment of [the statute] that the measure would not have been enacted in its absence.” (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 822 [ 258 Cal.Rptr. 161 , 771 P.2d 1247 ].) Like the trial court, I feel confident that the Legislature would have preferred the reformed construction of the Freeze Statute to its invalidation.
Finally, this case was brought and tried as a facial challenge to the Freeze Statute. Indeed, UDR does not have standing to bring an as-applied challenge, since it has never been subject to an enforcement action based on the statute. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [ 40 Cal.Rptr.2d *433 402 , 892 P.2d 1145 ] [“If a plaintiff seeks to enjoin future, allegedly impermissible, types of applications of a facially valid statute or ordinance, the plaintiff must demonstrate that such application is occurring or has occurred in the past. . . . The [United States] Supreme Court [has] held that the as applied challenge could be resolved only by considering how the statute was being administered.”].) Consequently, I do not agree with the majority’s analysis of the constitutional issue presented in this case.
In sum, the trial court enjoined the enforcement of the Freeze Statute to the extent that it “seeks to prevent the dissemination and reporting by consumer credit reporting agencies of any information contained in and/or obtained from matters of public record, and to the extent that the Freeze Statute seeks to preclude plaintiff from disseminating and reporting information contained in the public record. . . .” The effect of the majority opinion is to limit the reach of the injunction to a single consumer credit reporting agency, UDR. Because I believe that the Freeze Statute as written is unconstitutional to the extent that it precludes the dissemination by any consumer credit reporting agency of information contained in and/or obtained from the public record, I respectfully dissent.
A petition for a rehearing was denied November 29, 2006, and the opinion was modified to read as printed above. The petition of appellant The U.D. Registry, Inc., for review by the Supreme Court was denied February 7, 2007, S148641. Kennard, J., was of the opinion that the petition should be granted.
The statute at issue in UDR I provided that “No consumer credit reporting agency shall make any consumer credit report containing any of the following items of information: ...[][] (3) Unlawful detainer actions, unless the lessor was the prevailing party. . . .” (Civ. Code, § 1785.13, subd. (a)(3).) Thus, the statute made unlawful UDR’s disclosure to its client landlords of unlawful detainer information which it obtained from the public records.