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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


Page 1319g

144 Cal.App.4th 1319g __ 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 Respondent, 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.

ORDERS MODIFYING OPINION AND DENYING REHEARING PETITION

The Court:

The opinion filed on October 30, 2006 (144 Cal.App.4th 405;__ Cal.Rptr.3d__), is modified as follows:

1. On page 2, line 14, [144 Cal.App.4th 410, advance report, 1st para., line 22], change “defendants from disclosing” to “defendants from enforcing section 1785.11.2 as to”

2. On page 4, line 2, [144 Cal.App.4th 411, advance report, 1st para., line 15], replace “Equinox” with “Equifax”

3. On page 25, line 9, [144 Cal.App.4th 428, advance report, 2d para., line 7], change “invalid its face” to “invalid on its face”

4. On page 27, line 9, [144 Cal.App.4th 429, advance report, 2d para., line 30], replace “to freeze release” with “to freeze the release of”

5. On page 30, line 22, [144 Cal.App.4th 431, nonpublished portion of the opinion], replace “not merely to of plaintiff” with “not merely to plaintiff”

6. On page 31, line 11, [144 Cal.App.4th 431, nonpublished portion of the opinion], change “plaintiff’s opening brief” to “defendants’ opening brief”

Page 1319h

7. On page 29, [144 Cal.App.4th 431, advance report, 2d para.], after the conclusion of the first paragraph and above the notation to the Reporter of Decisions concerning the unpublished portion of the opinion, insert the following as a new paragraph:

For the first time in the rehearing petition, plaintiff argues the requirement recognized in Tobe v. City of Santa Ana, supra, 9 Cal.4th at page 1084 that a party mounting a facial attack on a statute demonstrate the challenged provision presents a “present total and fatal conflict” with the applicable constitutional prohibition does not apply to an overbreadth question in the free expression context. Plaintiff’s analysis is incorrect. (Secretary of State of Md. v. Joseph H. Munson Co., Inc. (1984) 467 U.S. 947, 967-968 [81 L.Ed.2d 786, 104 S.Ct. 2839] [“Where, as here, a statute imposes a direct restriction on protected First Amendment activity, and where the defect in the statute is that the means chosen to accomplish the State’s objectives are too imprecise, so that in all its applications the statute creates an unnecessary risk of chilling free speech, the statute is properly subject to facial attack.”]; People v. Stanistreet (2002) 29 Cal.4th 497, 511, fn. 5 [127 Cal.Rptr.2d 633].)Moreover, as noted, insufficient evidence was presented to support to support the trial court’s facial overbreadth conclusions. The evidence before the trial court related to plaintiff’s credit reports. There was no evidence as to industry wide practices or other credit reporting agency’s reports. Plaintiff presented no evidence as to whether section 1785.11.2 impinges upon the free expression rights of a substantial portion of those credit reporting agencies to whom it applies. (See American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 348 [66 Cal.Rptr.2d 210].)

8. On page 31, line 10, [144 Cal.App.4th 431, nonpublished portion of the opinion], delete the entire paragraph. In its place, insert as a new paragraph:

We need not address plaintiff’s equal protection argument. As it relates to the as applied issue, we have ruled in plaintiff’s favor and the issue is moot. As to the facial challenge, the equal protection issue changes nothing. Plaintiff has failed to comply with the requirement recognized in Tobe v. City of Santa Ana, supra, 9 Cal.4th at page 1084 that it demonstrate that section 1785.11.2 violates equal protection principles in all circumstances.


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)