In Subhani v. JPMorgan Chase Bank, Nat. Ass’n, 2012 WL 1980416 (N.D.Cal. 2012), Judge Alsup found FCRA pre-emption of the UCL and Song-Beverly Act, except where such claims arose from Civil Code § 1785.25(a) under Gorman. Judge Alsup explained:
In the wake of Gorman, at least two courts in this district have held that claims brought under California’s UCL predicated on violations of Section 1785.25(a) were not preempted. Bottoni v. Sallie Mae, Inc., Case No. 10–03602, 2011 U.S. Dist. LEXIS 18874, 2011 WL 635272, at *15 (N.D.Cal. Feb. 11, 2011) (Beeler, L.); El–Aheidab, 2012 U.S. Dist. LEXIS 19038, 2012 WL 506473, at *18 (N.D.Cal. Feb. 15, 2012) (Chen, E.). Both decisions reasoned that because claims brought under Section 1785.25(a) are not preempted by the FCRA, as determined by Gorman, that UCL claims based on Section 1785.25(a) were also not preempted because they did not create or impose any additional or inconsistent obligations. ¶ Both decisions appear to be consistent with the guidance provided in Gorman regarding preemption of claims brought under Section 1785.25(a); however, neither dealt with UCL claims predicated on statutes other than Section 1785.25(a). While the reasoning of both decisions is sound within context, neither should be interpreted as broadly as plaintiff advocates, especially in light of the fact that our court of appeals has since cautioned that “Gorman holds only that the FCRA does not preempt section 1785.25(a) claims against furnishers.” Carvalho, 629 F.3d at 889. Both Bottoni and El–Aheidab are thus instructive, but only in the context of claims brought under the UCL that are based on violations of Section 1785.25(a) of the CCRAA. ¶ … As set forth below, almost all of plaintiff’s claims for relief are based on state laws relating to activity covered by Section 1681 s–2, that is, conduct relating to a furnisher’s responsibilities to provide accurate information and conduct reasonable investigations following a dispute. Consistent with the guidance provided by our court of appeals, as well as by the Seventh and Second Circuits, and the California Supreme Court, these claims must be deemed preempted.
As to the UCL claim in particular, Judge Alsup explained:
“The ‘unlawful’ practices prohibited by section 17200 are any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made.” Saunders v. Superior Court, 27 Cal.App. 4th 832, 838–39 (1994). Thus, an unlawful business practices claim under Section 17200 “ ‘borrows’ violations of other laws and treats them as unlawful practices independently actionable under section 17200.” Ibid. A defendant cannot therefore be liable under Section 17200 for committing unlawful business practices “without having violated another law.” Ingles v. Westwood One Broadcasting, Servs., Inc., 129 Cal.App. 4th 1050, 1060 (2005). Based on the allegations in the complaint, plaintiff’s Section 17200 claim appears to be predicated on three underlying statutes: (i) violations of the FCRA; (ii) violations of the Song– Beverly Act; and (iii) violations of the CCRAA (Compl.¶¶ 62, 64). Given that plaintiff’s Song– Beverly Act claim is preempted, the only viable grounds for sustaining plaintiff’s UCL claim are the FCRA and the CCRAA. ¶ As noted above, defendant does not challenge plaintiff’s first or third claims for violations of the FCRA or the CCRAA. Rather, defendant argues that plaintiff may not assert a violation of the UCL be-cause the FCRA preempts this claim in its entirety, pointing to district court decisions that have held that the FCRA totally preempts UCL claims. See, e.g., Howard, 371 F.Supp.2d 1139. During oral argument, however, defendant’s counsel conceded that claims brought under the UCL predicated on violations of Section 1785.25(a) of the CCRAA are not preempted. Thus, consistent with Bottoni, El–Aheidab, and Carvahlo, plaintiff’s claim under Section 17200 is DISMISSED except to the extent it is based on Section 1785.25(a) of the CCRAA.
As to the Song-Beverly Act, Judge Alsup also found its credit reporting provisions pre-empted by FCRA.
The Song– Beverly Act is “designed to promote consumer protection .” Florez v. Linens ‘N Things, Inc., 108 Cal.App. 4th 447, 450 (2003). Under the Song– Beverly Act a credit card issuer is prohibited from, among other things, communicating unfavora-ble credit information to a third party while a billing dispute is under investigation. See Young v. Bank of America, 141 Cal.App.3d 108, 111 (1983). Plaintiff’s complaint appears to allege a violation of Section 1747.70(a) of the Song– Beverly Act, which prohibits a card issuer from “knowingly giving any untrue credit information to any other person concerning a card-holder” (see Compl. ¶¶ 40–41). ¶ Section 1747.70(a) of the Song– Beverly Act tracks the prohibitions under Section 1681 s–2(a) of the FCRA, but as our court of appeals has found, Section 1681 s–2(a) does not provide a private right of action. Gorman, 584 F.3d at 1154. Under plaintiff’s reading of Gorman, his Song– Beverly Act claim should nonetheless be permitted because it does not impose inconsistent or additional duties on a defend-ant. As set forth above, this court is unwilling to interpret Gorman so broadly. Plaintiff’s Song– Beverly Act claim is based on allegations that defendant, despite having actual knowledge of plaintiff’s bankruptcy petition, reported a debt owed by plaintiff as delinquent, and knowingly communicated this erroneous credit information to a credit reporting service. This claim involves both furnisher accuracy in submitting information to credit reporting agencies, as well as furnisher responsiveness in reacting to disputes, and is therefore covered by the preemptive scope of the FCRA. Moreover, during oral argument plaintiff’s counsel urged this court to adopt the statutory approach, conceding that under that approach plaintiff’s Song– Beverly Act claim should be dismissed. Thus, under either the statutory approach or the total preemption approach, plaintiff’s Song– Beverly Act claim does not survive. Plaintiff’s second claim for relief is therefore DISMISSED.