Case Number: EC059560    Hearing Date: August 08, 2014    Dept: A

Ally Financial v Luxor Auto

MOTION FOR SUMMARY JUDGMENT

Calendar: 3
Case No: EC059560
Date: 8/8/14

MP: Cross-Defendants, Ally Financial and Ally Bank
RP: Cross-Complainant, Anna Dolmazyan

ALLEGATIONS IN FIRST AMENDED CROSS-COMPLAINT:
The Cross-Complainant is the victim of identity theft. The Cross-Defendants have continued to pursue claims that a guaranty agreement was breached against the Cross-Complaint even thought she has presented facts demonstrating that her identity was stolen. In addition, the Cross-Defendants obtained a pre-judgment writ of attachment.

CAUSES OF ACTION IN FIRST AMENDED CROSS-COMPLAINT:
1) Identify Theft
2) Wrongful Attachment (removed by demurrer on July 18, 2014).

RELIEF REQUESTED:
Summary Judgment

DISCUSSION:
Trial is set for September 22, 2014.

This hearing concerns the Cross-Defendants’ motion for summary judgment on the First Amended Cross-Complaint. The Cross-Defendants argue that the Cross-Complainant cannot establish that she is the victim of identity theft.
The First Amended Cross-Complaint contains a single cause of action based on California’s Identity Theft law, which is enacted at Civil Code sections 1798.92 to 1798.97. The second cause of action was removed by an order sustaining the demurrer on July 18, 2014.
Civil Code section 1798.92(d) defines the phrase “victim of identity theft” to means the following:

1) a person who had his or her personal identifying information used without authorization by another to obtain credit, goods, services, money, or property,
2) the person did not did not use or possess the credit, goods, services, money, or
property obtained by the identity theft; and
3) the person filed a police report in this regard pursuant to Penal Code section 530.5.

Under Civil Code section 1798.93, a person may bring an action against a claimant to establish that the person is a “victim of identity theft” in connection with the claimant’s claim against that person in a cross-complaint. If the person proves that they are the victim of identify theft, then under section 1798.93(c)(5), the person may obtain actual damages, attorney’s fees, and costs, and any equitable relief that the Court deems appropriate. In order to recover actual damages or attorney’s fees in an action or cross-complaint filed by a person alleging that he or she is a victim of identity theft, the person shall show that he or she provided written notice to the claimant that a situation of identity theft might exist, including, upon written request of the claimant, a valid copy of the police report or the Department of Motor Vehicles investigative report promptly filed pursuant to Section 530.5 of the Penal Code at least 30 days prior to his or her filing of the action, or within his or her cross-complaint pursuant to this section.
In addition to any other damages, section 1798.93(c)(6) permits the recovery of a civil penalty of up to thirty thousand dollars if the victim establishes by clear and convincing evidence all of the following:

(A) That at least 30 days prior to filing an action or within the cross-complaint pursuant to this section, he or she provided written notice to the claimant at the address designated by the claimant for complaints related to credit reporting issues that a situation of identity theft might exist and explaining the basis for that belief.
(B) That the claimant failed to diligently investigate the victim’s notification of a possible identity theft.
(C) That the claimant continued to pursue its claim against the victim after the claimant was presented with facts that were later held to entitle the victim to a judgment pursuant to this section.

Under CCP section 437c, the Cross-Defendant has the burden of producing evidence that establishes that the Cross-Complainant cannot establish an essential element in her cause of action. The Cross-Defendant argues that the Cross-Complainant cannot establish each element of the definition of “victim of identity theft” in Civil Code section 1798.92(d).

1. Use of Personal Identifying Information
The Cross-Defendant argues that the Cross-Complainant cannot establish that her personal identifying information was used without authorization to obtain credit, goods, services, money, or property.
The Cross-Complaint includes allegations that her signature was forged on a guaranty agreement. The Cross-Defendant argues that it did not provide any credit, goods, money, property, or services in reliance on the guaranty. This argument makes little sense because it ignores the very manner in which the Cross-Defendant’s personal information was used, i.e., to provide a guaranty to the Cross-Defendants, Ally Bank and Ally Financial, which they are seeking to use in their Fourth Amended Complaint to claim that Anna Dolmazyan is liable for the acts of Luxor Auto Group, Inc. This indicates that Anna Dolmazyan’s personal information was used in the guaranty agreement to obtain something of value, i.e., Luxor Auto Group, Inc.’s contractual relationship with the Cross-Defendants.
The Cross-Defendant did not direct the Court to a copy of the guaranty or the Master Retail-Lease Agreement in its motion. Instead, the guaranty and Master Retail-Lease Agreements are in untabbed exhibits to the Fourth Amended Complaint, a copy of which is attached to the request for judicial notice.
A review of the guaranty agreement reveals that it bound the guarantor, i.e., the Cross-Complainant, Anna Dolmazyan, to perform the obligations of the dealer, Luxor Auto Group, Inc., under the Master Retail-Lease Agreement. Under the Master Retail-Lease Agreement, the Cross-Defendants, Ally Bank and Ally Financial, provided retail and lease accommodations by taking assignment of motor vehicle retail installment sale and lease contracts from Luxor Auto Group, Inc.
The Cross-Defendant admits that under this agreement, it agreed to review deals in order to determine whether to purchase them. This is evidence that the Cross-Defendant provided a service under a contractual relationship with Luxor Auto Group, Inc., i.e., it agreed to provide accommodations by reviewing deals in order to determine whether to purchase them from Luxor Auto Group, Inc. Since the Cross-Defendant provided this service because Luxor Auto Group, Inc. provided a guaranty from the Cross-Complainant, this is evidence that the Cross-Complainant’s personal identifying information was used to obtain a service.

Therefore, there is a dispute of fact whether the Cross-Complainant’s personal information was used to obtain credit, goods, services, money, or property.

2. Use of Cross-Complainant’s Personal Identifying Information
The Cross-Defendants argue that the Cross-Complainant cannot establish that her personal identifying information was used without her permission because her signature is not personal identifying information. This argument is unpersuasive and ignores the express language of section 1798.92.
Under section 1798.92(c), personal identifying information includes a person’s name. The guaranty agreements included Anna Dolmazyan’s signature. Since a signature is the use of a name on a document, the use of Anna Dolmazyan’s signature on the guaranty agreement was the use of her personal identifying information, as expressly defined under section 1798.92(c).

The Cross-Defendants presents an argument that Anna Dolmazyan’s name was not used without her authorization. The opposition papers include the declaration of Anny Dolmazyan in which she states that she did not authorize anyone to sign her name to the guaranty agreements. This indicates that there is a triable question of fact whether Anna Dolmazyan’s personal identifying information was used without her authorization.

Therefore, the Cross-Defendants have not established that the Cross-Complainant cannot prove that her name was used without her authorization.

3. Police Report
The Cross-Defendants argue that the Cross-Complainant did not file a police report for identity theft under Penal Code section 530.5. Cross-Defendants do provide evidence that the Cross-Complainant filed a police report for forgery under Penal Code section 470.
The opposition papers include the evidence that the Cross-Complaint filed a supplemental police report under Penal Code section 530.5. A copy is attached to her First Amended Cross-Complaint. This is evidence that the Cross-Complainant filed the required police report.

Accordingly, Cross-Defendants have not established that the Cross-Complainant did not file a police report as required under Civil Code section 1798.92.

Therefore, the Court will deny the motion for summary judgment of the Cross-Complaint. The Court notes that the parties arguments are in part based on syllogisms and intended to persuade the Court to use their definitions for the terms and phrases signature, name, forgery, and identity theft. Although interesting, these arguments merely emphasize that there are triable issues of fact whether Anna Dolmazyan’s personal information, i.e., her name, was used without her authorization, to obtain a service, i.e., a contractual relationship with the Cross-Defendants.

RULING:
DENY motion for summary judgment.