In Sanai v. Saltz — Cal.Rptr.3d —-, 2009 WL 162059 (2009), the Second District Court of Appeal declined to follow the First District Court of Appeal’s decision in Liceaga on December 30, 2008 (http://www.calautofinance.com/?p=336), finding a private right of action under the CCRAA (Civil Code § 1785.25(a)) pre-empted by FCRA. Instead, the Second District Court of Appeal followed the Court of Appeals for the Ninth Circuit’s in Gorman on January 12, 2009 (http://www.calautofinance.com/?p=353) allowing a private right of action to proceed under the CCRAA:
In a case decided several days after oral argument in this case, however, the Ninth Circuit rejected the pre-emption analysis in these cases. In Gorman v. Wolpoff & Abramson, LLP (9th Cir., Jan. 12, 2009, No. 06-17226) — F.3d —- [2009 U.S.App. Lexis 585], the Court of Appeals reversed the district court’s holding that the plaintiff’s section 1785.25, subdivision (a), claim against the furnisher of credit informa-tion was preempted because the private right of action to enforce that statutory provision is found in sections not specifically exempted from the federal preemption provision. First, the court rejected the district court’s suggestion section 1785.25, subdivision (a), could be enforced by state officials, explaining that the authorization for such enforcement, if it exists at all, “almost surely lies in provisions also not specifically excluded by the FCRA preemption pro-vision. The district court’s analysis would thus lead to the conclusion that Congress explicitly retained the portions of the California statutory scheme that create obligations, without leaving in place any enforcement mechanism.”(Id. at p. —-.) More significantly, the court emphasized the affirmative preemption lan-guage referred only to imposition of a “requirement or prohibition” with respect to subjects regulated by 15 U.S.C. § 1681s-2. Civil Code sections 1785.25, subdivision (g), and 1785.31, however “merely pro-vide a vehicle for private parties to enforce other sec-tions, which do impose requirements and prohibi-tions. In other words, Congress had no need to in-clude these enforcement provisions in the § 1681t(b)(1)(F) exception to save the California statu-tory scheme from preemption by the affirmative lan-guage of the preemption provision. By the plain language of the statute, therefore, these sections are not preempted by § 1681t(b)(1)(F).”(Id. at p. —-.) ¶ The trial court found the Lin court’s analysis “perfectly persuasive.” Like the Ninth Circuit, we do not.