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U.D. Registry, Inc. v. State of California

California Court of Appeals, Second District, Fifth Division
Nov 29, 2006
No. B179653 (Cal. Ct. App. Nov. 29, 2006)

Opinion


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144 Cal.App.4th 1319d __ Cal.Rptr.3d__ THE U.D. REGISTRY, INC., Plaintiff and Appellant, v. THE STATE OF CALIFORNIA et al., Defendants and Appellants. THE U.D. REGISTRY, INC., Plaintiff and Appellant, v. THE STATE OF CALIFORNIA et al., Defendants and Appellants. B179653, B186012 California Court of Appeal, Second District, Fifth Division November 29, 2006

[CERTIFIED FOR PARTIAL PUBLICATION ]

Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part IV.

Los Angeles County Super. Ct. No. BC287331.

MODIFICATION OF CONCURRING AND DISSENTING OPINION

ARMSTRONG, J.

The Court:

The concurring and dissenting opinion filed in this matter by Justice Orville A. Armstrong on October 30, 2006 (144 Cal.App.4th 405;__ Cal.Rptr.3d__ ) is modified as follows:

1. Strike "concurring and" from the caption. [144 Cal.App.4th 431, advance report, 3d par., line 34].

2. Delete the first paragraph in its entirety and insert in its place the sentence "I respectfully dissent", [144 Cal.App.4th 431, advance report, 3d par., line 34].

3. In the fourth line of the fifth paragraph, add the word "facially" before the word "unconstitutional", [144 Cal.App.4th 432, advance report, 4th par., line 31].

4. Delete the last sentence of the fifth paragraph, [144 Cal.App.4th 432, advance report, 4th par., line 31].

5. Add three paragraphs after the fifth paragraph, as follows, [144 Cal.App.4th 432, advance report, 4th par., line 33]:

"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,

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'[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].)

"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.App.3d 805, 882 [258 Cal.Rptr. 161].) 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 402] ["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 [U.S.] 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."

6. Delete the last paragraph in its entirety and insert the following paragraph in its place, [144 Cal.App.4th 433, advance report, 1st par., line 1]: "In sum, the trial court enjoined the enforcement of the Freeze Statute to the

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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."


Summaries of

U.D. Registry, Inc. v. State of California

California Court of Appeals, Second District, Fifth Division
Nov 29, 2006
No. B179653 (Cal. Ct. App. Nov. 29, 2006)
Case details for

U.D. Registry, Inc. v. State of California

Case Details

Full title:THE U.D. REGISTRY, INC., Plaintiff and Appellant, v. THE STATE OF…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Nov 29, 2006

Citations

No. B179653 (Cal. Ct. App. Nov. 29, 2006)