Opinion
A167221
08-08-2024
LOVENIA SCOTT, Plaintiff and Appellant, v. GOLDEN STATE FC, LLC, et al., Defendants and Respondents
NOT TO BE PUBLISHED
(San Francisco City & County Super. Ct. No. CGC-20-581969)
SMILEY, J. [*]
Lovenia Scott applied for and obtained a job with Amazon. Her offer of employment was conditioned on her passing a background check. Scott authorized Amazon to obtain the background check and began her employment soon thereafter. Three years later, and after she was no longer employed by Amazon, Scott filed a class action lawsuit against Golden State FC, LLC (now known as Amazon.com Services LLC) and Amazon.com, Inc. (collectively, Amazon), alleging that Amazon violated the Fair Credit Reporting Act (FCRA; 15 U.S.C. § 1681, et seq.) by obtaining a background check without first providing her with a compliant disclosure form.
Amazon moved for summary adjudication or, in the alternative, summary judgment asserting a statute of limitations defense; the trial court denied the motion on the basis that Amazon failed to produce evidence relative to an issue the court found was necessary to establish the defense. After conducting additional discovery, Amazon filed a second motion for summary judgment directed solely towards addressing the evidence it failed to produce at its first motion. Another superior court judge granted the motion. The court ruled the second motion was properly filed and Scott's claim was time-barred.
Scott appeals, arguing the trial court erred in permitting a successive motion for summary judgment and in finding her action was time-barred. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2016, Scott applied to work at an Amazon fulfillment center. Amazon emailed Scott an offer of employment contingent on her passing a "background check," a term she read and understood. Amazon also presented her with a Background Check Disclosure Document stating in relevant part that "In connection with your application for employment or continued employment with Amazon.com, Inc. or its subsidiaries or affiliates . . ., we will procure a consumer report on you from a consumer reporting agency. This is commonly known as a 'background check.' " On September 29, Scott reviewed the form and authorized Amazon to obtain a background check for her. On October 31, Scott began working for Amazon.
Both parties use the terms "background check" and "consumer report" interchangeably. We will do likewise.
In January 2020, Scott filed a class action lawsuit against Amazon alleging a single cause of action for violation of the FCRA. Scott averred that Amazon violated the FCRA by obtaining a background check without disclosing it would do so in a standalone document.
First Summary Judgment Motion
In September 2021, Amazon moved for summary judgment or, in the alternative, summary adjudication on various bases including, as relevant here, that the action was time-barred. Amazon argued that an action to enforce liability under the FCRA must be brought no later than the earlier of two years after the date of discovery by the plaintiff of the FCRA violation, or five years after the date on which the violation occurs. It further stated the two-year limitations period begins to run from the time a reasonably diligent plaintiff knew or should have known of the facts constituting the violation. Amazon asserted that Scott knew or should have known that it obtained a background check for her on September 29, 2016, when she viewed the Background Check Disclosure Document and authorized Amazon to conduct a background check. Alternatively, Amazon contended that even if Scott was unaware on September 29, she knew or should have known by her hire date in October 2016 that Amazon had pulled a consumer report for her because she knew that successfully passing the background check was a condition of her employment. Thus, her lawsuit - filed in January 2020 - was barred by the statute of limitations.
The trial court denied Amazon's motion. In its ruling, the court noted that Amazon relied on three federal district court opinions to argue that when an employee is told their hiring is contingent on passing a background check, the employee has constructive notice of a FCRA violation once the employee is hired. Based on these courts' holdings, Amazon contended that the only facts material to its limitations period defense were that Scott was informed her hiring was contingent on a background check that Amazon would obtain, and that she was ultimately hired. The court acknowledged these facts provided Scott with "ample reason" to undertake a reasonable investigation regarding a possible FCRA violation, but they were insufficient to establish constructive discovery of a violation because Scott "did not know whether [Amazon] had acted in conformity with [its] representations [to perform a background check]."
In coming to its conclusion, the trial court relied on two Ninth Circuit cases - Drew v. Equifax Info. Servs., LLC (9th Cir. 2012) 690 F.3d 1100 (Drew) and Strategic Diversity, Inc. v. Alchemix Corp. (9th Cir. 2012) 666 F.3d 1197 - for the proposition that to establish constructive discovery of a FCRA violation, Amazon bore "the initial burden of producing evidence that a reasonable investigation would have uncovered the fact that [Amazon] had run a background check, including how that would have occurred." Because Amazon did not submit evidence on this point, the court concluded there was a "gap in the evidentiary record" that precluded it from finding that Amazon had carried its initial burden on the statute of limitations defense.
Second Summary Judgment Motion
Because Amazon's first motion was framed as a motion for summary judgment as an alternative to a motion for summary adjudication, we refer to its subsequently filed motion for summary judgment as the "second" motion for summary judgment.
Following the trial court's ruling, Amazon conducted additional discovery concerning what a reasonable investigation by Scott would have uncovered. Amazon then filed a second motion for summary judgment. This motion indicated it was being filed for the purpose of presenting evidence relative to the" 'reasonable investigation' issue" Amazon had not previously addressed "[b]ecause the district court decisions upon which [it] relied had not required such a showing." The new evidence submitted included Scott's deposition testimony and declarations from numerous individuals familiar with Amazon's hiring and background check process; this evidence established at least nine ways Scott could have confirmed a background check had been run on her. For example, Amazon pointed out that Scott could have checked a box that allowed her to request a free copy of her background check when she authorized Amazon to run one on her, or she could have asked human resources employees at Amazon or the background check vendor itself about whether a background check had been run on her.
Scott opposed the motion. Preliminarily, Scott argued Amazon's second motion for summary judgment violated Code of Civil Procedure section 437c, subdivision (f)(2)'s prohibition against renewed summary judgment motions absent a showing of newly discovered facts or circumstances or a change in the law. Scott also contended, among other things, that the evidence did not establish she had a duty to investigate or that she had constructive notice of all of the elements of a FCRA violation.
All undesignated statutory references are to the Code of Civil Procedure.
In ruling on the second summary judgment motion, another superior court judge held that section 437c, subdivision (f)(2) did not bar Amazon from filing the second motion because a comparison of the two motions indicated the second motion was based on new facts and evidence, including Scott's deposition testimony and seven declarations from Amazon employees and representatives of its background check provider. The trial court also observed that though both motions generally sought judgment on statute of limitations grounds, the theories asserted in each motion were different. The court noted that in the first motion, Amazon's legal theory was that if Scott was told her hiring would be contingent on a background check it would obtain for her, the two-year limitations period was triggered once she was hired. In contrast, the court stated the second motion was based on Amazon's theory that Scott could, in fact, have confirmed that a background check had been performed if she had conducted a reasonable investigation.
On the merits, the trial court held the record supported a finding that as of October 31, 2016 (the date Scott started her employment), a reasonably diligent plaintiff should have known that Amazon conducted a background check given the employment was contingent upon passing a background check. The court further noted that Amazon had "remedied the evidentiary gap" in the prior motion by presenting "extensive" undisputed facts that there were multiple ways Scott could have confirmed a background check had been performed, but she failed to pursue any of them. The trial court then granted the motion on the basis the action was time-barred and entered judgment for Amazon.
DISCUSSION
Scott challenges the judgment on two grounds. First, she argues the second summary judgment motion violated section 437c, subdivision (f)(2) because it presented new evidence without a satisfactory explanation for why this evidence could not have been presented earlier. Second, she contends the court erred by concluding her action was barred by the statute of limitations.
I. Procedural Propriety of Second Summary Judgment Motion
1. Applicable Legal Principles "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Under section 437c, subdivision (a)(1) "[a] party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." Such a motion must be granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Id., subd. (c).) As an alternative to a motion for summary judgment, a party may move for summary adjudication on various statutorily enumerated grounds, including that a cause of action has no merit. (Id., subd. (f)(1).) Such a motion should be granted "only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Ibid.)
Section 437c, subdivision (f)(2) provides in relevant part that "[a] party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion." We review for abuse of discretion "a trial court's decision to allow a party to file a renewed or subsequent motion for summary judgment." (Nieto v. Blue Shield of California Life &Health Ins. Co. (2010) 181 Cal.App.4th 60, 72 (Nieto).) An abuse of discretion occurs "if, in light of the applicable law and considering all of the relevant circumstances, the court's decision exceeds the bounds of reason and results in a miscarriage of justice." (New Albertsons, Inc. v. Superior Court. (2008) 168 Cal.App.4th 1403, 1422.) This standard "affords considerable deference to the trial court" (ibid) and is "not met by merely arguing that a different ruling would have been better" (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281).
2. Whether the Trial Court Abused Its Discretion
The trial court held that section 437c, subdivision (f)(2) did not bar the second summary judgment motion because Amazon submitted new evidence and facts, and asserted a different legal theory not raised in the first summary judgment motion. Scott argues that "[e]vidence that a party could have presented earlier does not constitute new or different facts" and the court erred by allowing Amazon to submit additional evidence without providing a" 'satisfactory explanation'" for why such facts and evidence were not presented earlier. Scott claims that Amazon cannot justify its failure to present these facts and evidence earlier because it could have taken her deposition and obtained declarations from its employees and background check vendor before the first summary judgment motion. We are not persuaded that any abuse of discretion occurred.
To reassert its statute of limitations defense at the subsequent summary judgment motion, Amazon was required to establish, "to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted...." (Code Civ. Proc., § 437c, subd. (f)(2).) This determination required the trial court to compare the first and second motions, which it did. (See, Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1096-1097 (Bagley).) If the second motion is substantially identical to the first, offering a "reformatted, condensed, and cosmetically repackaged" version of the first motion, the subsequent motion is barred by the statute. (Id. at p. 1097 [subdivision (f)(2) prohibited second motion where the court was unable to find a material fact in defendant's second separate statement of undisputed facts that was not included in the first statement of undisputed facts]; accord, Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 738 [renewed summary judgment motion denied because there were no newly discovered facts or circumstances or change of law to support the issues reasserted].) If, on the other hand, newly discovered facts or a change in applicable law allowed the court to consider matters it did not address at the first motion, the subsequent motion is not necessarily barred. (See, e.g., Pender v. Radin (1994) 23 Cal.App.4th 1807, 1812 [depositions conducted after the first motion allowing the defendant to raise a new argument "justified" the second motion].)
Courts have considered section 437c, subdivision (f)(2) in a variety of contexts that inform our analysis. Courts have found the presentation of newly discovered facts in the successive motion sufficient, standing alone, to overcome the statute's bar to successive motions. (Jefferson v. Quick Korner Market, Inc. (1994) 28 Cal.App.4th 990 (Jefferson); Bayramoglu v. Nationstar Mortgage LLC (2020) 51 Cal.App.5th 726, 731, 739 [new responses to form interrogatories showing plaintiffs could not prove several causes of action constituted sufficient newly discovered facts]; Pender v. Radin, supra, 23 Cal.App.4th at p. 1812.) In Jefferson, supra, 28 Cal.App.4th at pages 992, 997, a negligence case, the defendant's first summary judgment motion was based on a theory that it did not owe a duty to a plaintiff who had been hit by an automobile that jumped the curb in defendant's parking lot. After the motion was denied, the defendant obtained declarations from a company executive and an architect and presented them in support of a renewed summary judgment motion which again asserted that it owed no duty to the plaintiff. The Jefferson court rejected plaintiff's argument that the second motion was barred by section 437c, subdivision (f)(2). (Id. at p. 997, fn. 4.) Because the second motion "alleged facts that had not been asserted previously," the court found no error in allowing the second motion. (Ibid.)
Other courts have analyzed section 437c, subdivision (f)(2) by comparing the similarity of legal issues advanced at each motion. These cases conclude that the statute will not bar a subsequent summary judgment motion if it raises a different legal theory than the first, even if the theory is related to issues raised in the first motion. (See, e.g., Patterson v. Sacramento City Unified Sch. Dist. (2007) 155 Cal.App.4th 821 (Patterson).) In Patterson, also a case involving claims of negligence, although both the first and second motions for summary judgment "involved 'duty' in a general sense, the [two] were not identical and involved different legal theories. The first motion focused on whether there was a statutory basis for imposing a duty; the second motion focused on whether the common law defense of assumption of risk applied to negate any claim of duty." (Id. at p. 827.) As the second motion for summary judgment was not simply a" 'reformatted, condensed, and cosmetically repackaged' version of its first motion," the court found that subdivision (f)(2) did not bar the second motion. (Ibid.)
Nieto, supra, 181 Cal.App.4th 60, permitted a subsequent summary judgment motion to remedy a gap in the evidence presented at the first motion. There, the defendant's first motion was denied because the evidence failed to establish that "the material facts were undisputed with respect to each element of fraud" that Blue Shield alleged against the plaintiff as a defense to the accusation it had unlawfully rescinded her insurance policy. (Id. at p. 69.) Blue Shield's renewed summary judgment motion - based on new evidence including declarations, medical records, and excerpts of plaintiffs deposition testimony - was granted. (Id. at pp. 69-70.) The Nieto court compared the two motions and concluded that section 437c, subdivision (f)(2) did not bar summary judgment because the second motion "addressed an issue not raised by the prior motion." (Id. at p. 72.) More particularly, the court stated that while the prior motion was denied because it failed to address the elements of fraud, the renewed summary judgment motion "addressed this previously omitted issue, asserting that Blue Shield was entitled to judgment because appellant committed fraud on the application and specifically identified the elements of fraud established by the undisputed evidence." (Ibid.)
In their comparisons between the first and subsequent motions, the above-referenced cases concentrate on preventing successive motions that are identical to the first motion. They also suggest that whether Amazon's second motion is characterized as presenting a "new issue" (i.e., in the sense that evidence regarding how Scott could have learned a background check was conducted had not been presented at the earlier motion), or as a "reasserted issue" (i.e., a continuation of Amazon's statute of limitations defense) is not determinative. These cases agree that it is enough that the newly discovered evidence had not been previously offered and that it invited the trial court presiding over the second motion to make legal determinations that did not repeat the grounds upon which the earlier motion was decided.
Scott conceded that Amazon presented new evidence at the second motion. This evidence included her deposition testimony and numerous declarations from employees of Amazon and its vendor, Accurate Background. Amazon thus established newly discovered facts to support its subsequent motion focused on the multiple ways Scott could have confirmed a background check had been performed if she had conducted a reasonable investigation.
In this case, our conclusion that the trial court did not abuse its discretion is also inextricably tied to the unique circumstances giving rise to Amazon's subsequent motion. Amazon's first motion asserted a statute of limitations defense based on a legal standard identified in three federal district court cases that factually resembled Scott's circumstances in that they involved FCRA background check disclosures. (See Rodriguez v. U.S. Healthworks, Inc. (N.D.Cal. 2019) 388 F.Supp.3d 1104 (Rodriguez), revd. on other grounds (9th Cir. 2020) 813 Fed.Appx. 315, 316; Ruiz v. Shamrock Foods Co. (C.D.Cal., Aug. 22, 2018) 2018 WL 5099509, at p. *6, fn. 6, affd. (9th Cir. 2020) 804 Fed.Appx 657, 659; Berrellez v. Pontoon Sols., Inc. (C.D.Cal., Oct. 13, 2016) 2016 WL 5947221, at p. *7, affd. on other grounds (9th Cir. 2019) 775 Fed.Appx 357, 358.) In these cases, the district courts concluded that employees who know their employment is conditioned on passing a background check have constructive knowledge that background checks have been obtained by the time they start employment. (Ibid.) The trial court rejected these authorities and followed a standard established in Drew, supra, 690 F.3d 1100 - a case involving a different type of FCRA violation than the one alleged by Scott. That standard required evidence demonstrating the means by which a reasonably diligent plaintiff would have discovered the background check violation - a showing Amazon did not make in its first motion based on its reliance on the district court authorities that articulated no such requirement. In the second summary judgment motion, Amazon reasserted its limitations period defense. This time, however, it targeted its subsequent discovery and presentation on filling the evidentiary gap identified for the first time at the original motion. Under these circumstances, we do not find the trial court abused its discretion when it concluded that section 437c, subdivision (f)(2) did not bar the second motion. (See, Nieto, supra, 181 Cal.App.4th at p. 72.)
In Drew, supra, 690 F.3d 1100, the Ninth Circuit evaluated the issue of when a plaintiff knew of a credit card company's failure to comply with its duty under the FCRA to investigate a claim regarding inaccurate information. In that context, the Ninth Circuit required the defendant" 'to demonstrate that a reasonably diligent plaintiff would have discovered the facts constituting the violation'" and" 'how a reasonably diligent plaintiff . . . would have discovered the violations.'" (Ibid.)
As for Scott's assertion that the trial court erred in permitting Amazon's second summary judgment motion without requiring a satisfactory explanation for why the new facts and evidence were not presented earlier, it is not well-taken. At the outset, Scott cites no authority for the proposition that section 437c, subdivision (f)(2) requires a litigant to provide a satisfactory explanation for why new facts and evidence were not presented earlier. Instead, she relies on case law interpreting section 1008 - the statute that authorizes motions for reconsideration based on" 'new or different facts, circumstances, or law'" - and argues that section 437c, subdivision (f)(2) "should be interpreted" similarly. Her reliance on these authorities is misplaced.
It is true that courts interpreting section 1008 have required the party seeking reconsideration to show "new facts, circumstances, or law that, despite reasonable diligence, could not have accompanied the original motion." (Fettig v. Hilton Garden Inns Management LLC (2022) 78 Cal.App.5th 264, 269.) That said, when faced with invitations to import interpretations of section 1008 to the context of successive summary judgment motions, courts have concluded that such motions should be decided by the specific requirements of section 437c, subdivision (f)(2). (See, e.g., Bagley, supra, 73 Cal.App.4th at p. 1096, fn. 3; Schachter v. Citigroup, Inc., supra, 126 Cal.App.4th at p. 734.)
In any event, even if we were to accept Scott's argument that section 437c, subdivision (f)(2) requires a satisfactory explanation regarding a party's failure to present evidence at an earlier time, here, that standard has been met. Amazon's second summary judgment motion clearly indicated that it was presenting evidence that only became relevant when the trial court's ruling on the first motion announced a legal standard and an evidentiary requirement that was not identified by the cases upon which Amazon reasonably relied when it filed the first motion. This explanation is satisfactory. For similar reasons, we reject her contention that evidence a party could have presented earlier does not constitute new facts. Prior to the ruling on the first motion, Amazon could not have known to collect evidence concerning how Scott could have confirmed a background check had been performed.
Lastly, Scott argues that section 437c, subdivision (f)(2) should not be a mechanism for a party to fix its evidentiary shortcomings at the first motion. We recognize this objection as striking at a concern against allowing litigants to profit from a failure to meet an evidentiary burden at the first motion only to receive a second bite of the apple. Scott describes this interpretation of the statute as a recipe for seriatim summary judgment motions becoming commonplace. We do not share this view. Avoidance of seriatim motions is the statute's purpose. Subdivision (f)(2) "was added to make the summary judgment process more efficient and to reduce the opportunities for abuses of the procedure [citation] which the addition of subdivision (f)(2) accomplished by overruling the cases that had held that an order denying a motion for summary judgment did not preclude a renewal of the same motion at any time before trial." (Bagley, supra, 73 Cal.App.4th at p. 1097, fn. 3.) Additionally, as discussed above, we see no abuse occasioned by Amazon's presentation of newly discovered evidence that establishes no need for a trial.
Scott fails to demonstrate that the trial court abused its discretion in permitting Amazon's second summary judgment motion.
II. Trial Court's Ruling on the Merits of the Summary Judgment Motion
1. Applicable Legal Principles
We begin our discussion by setting out the law governing our review of a trial court ruling on a summary judgment motion and the substantive law under the FCRA at issue in Amazon's motion.
Summary Judgment Law
A defendant moving for summary judgment meets its burden of showing a cause of action has no merit if it shows that one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. (§ 437c, subd. (p)(2).) Once the defendant has made the required showing, the burden shifts to the plaintiff to show a triable issue of material fact exists as to that cause of action or defense. (Aguilar, supra, 25 Cal.4th at p. 849.)
In reviewing a trial court's ruling on a motion for summary judgment, we apply a de novo standard of review, "considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained," "liberally constru[ing] the evidence in support of the party opposing summary judgment," and "resolv[ing] doubts concerning the evidence in favor of that party." (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) We will find no error in a trial court's grant of summary judgment "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (§ 437c, subd. (c).)
"While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper." (Jolly v. Eli Lilly &Co. (1988) 44 Cal.3d 1103, 1112.)
FCRA
Section 1681b of the FCRA provides in relevant part that a person may not procure a consumer report for employment purposes unless a "clear and conspicuous disclosure . . . in a document that consists solely of the disclosure" has been obtained beforehand and the consumer has authorized the procurement in writing. (15 U.S.C. § 1681b(b)(2)(A).) An employer violates this provision when "after violating its disclosure procedures, [the employer] 'procure[s] or cause[s] to be procured' a consumer report about the job applicant." (Syed v. M-I, LLC (9th Cir. 2017) 853 F.3d 492, 506.)
Under section 1681p of the FCRA, an action to enforce liability under the FCRA must be brought not later than the earlier of (1) two" 'years after the date of discovery [or constructive discovery] by the plaintiff of the violation that is the basis for such liability'" (Drew, supra, 690 F.3d at p. 1109), or (2) five years after the date on which the violation that is the basis for such liability occurs (15 U.S.C. § 1681p). The relevant discovery for purposes of triggering a limitations period is the discovery of "facts that give rise to a claim," not the discovery that "those facts constitute a legal violation." (Mack v. Equable Ascent Fin., L.L.C. (5th Cir. 2014) 748 F.3d 663, 665-66 (Mack).) The defendant bears the burden of "demonstrating] that a reasonably diligent plaintiff would have discovered the facts constituting the violation." (Drew, at p. 1110, italics omitted.)
2. Whether Summary Judgment Was Properly Granted on the Basis the Action Was Untimely
The trial court held Scott's action was time-barred. The court noted that Amazon's September 2016 employment offer expressly stated the offer was contingent upon Scott successfully passing the background check; Scott confirmed she read and understood the Background Check Disclosure Document and authorized the background check in September 2016; and Scott began her employment on October 31, 2016. The court also observed that Scott testified at deposition that she understood her employment offer was conditioned upon passing a background check and further understood that she had completed all requisite steps to become an Amazon employee when she received an email on October 21, 2016, regarding scheduling for a new-hire orientation. Lastly, the court stated that Amazon had presented extensive undisputed evidence that there were multiple ways Scott could have confirmed a background check had been performed on her. As such, the court concluded the record supported a finding that as of October 31, 2016 (the date Scott began her employment with Amazon), a reasonably diligent plaintiff should have known that Amazon conducted a background check.
Scott first contends the trial court erred because she had no reason to suspect wrongdoing and, therefore, had no duty to investigate any potential violation of the FCRA. More particularly, she asserts that she applied for a job and was hired, but "nothing happened that would excite her suspicion" that Amazon had violated her legal rights in the hiring process. In support, Scott cites Merck &Co. v. Reynolds (2010) 559 U.S. 633 (Merck) for the proposition that while "terms such as 'inquiry notice' and 'storm warnings' may be useful to the extent that they identify a time when the facts would have prompted a reasonably diligent plaintiff to begin investigating," the "limitations period does not begin to run until the plaintiff thereafter discovers or a reasonably diligent plaintiff would have discovered 'the facts constituting the violation.'" (Id. at p. 653, italics added.) Merck does not aid Scott's position.
We observe that in the excerpt Scott focuses on, the United States Supreme Court addressed the issue of when a limitations period would begin running for a private securities fraud action. (Merck, supra, 599 U.S. at pp. 637, 653.) In that context, the high court observed that there was a distinction between the point in time at which the facts would have "prompted" a reasonable plaintiff to begin investigating and the point in time at which a reasonably diligent plaintiff "would have discovered" the facts constituting the violation. (Ibid.) After drawing this distinction, the court held that the limitations period was triggered by the point in time at which a reasonably diligent plaintiff would have actually discovered the facts constituting the violation. (Ibid.)
The Merck court's conclusion has no application here, because the merits of Amazon's limitations period defense does not hinge on the distinction between when Scott would have been prompted to begin investigating and when she would have discovered an FCRA violation. It also bears no apparent connection to Scott's argument that she had no reason to suspect any wrongdoing on Amazon's part. Further, as discussed in more detail below, we conclude the record contains ample undisputed evidence that Scott should have been prompted to investigate and could have discovered her FCRA claim.
Scott contends the trial court erred because it only found she had constructive notice a background check had been obtained and made no determination whether she had notice that Amazon's Background Check Disclosure Document violated the FCRA. In this regard, Scott asserts that an FCRA violation exists not merely when an employer procures a consumer report, but when it does so without having provided a compliant disclosure form. Thus, she concludes the court was also required to find that she had actual or constructive notice of the fact the disclosure Amazon provided contained extraneous material in violation of the FCRA. We are not persuaded.
In Rodriguez, supra, 388 F.Supp.3d at page 1105, the district court rejected the very contention Scott advances here - namely, that she was required to have constructive notice that the disclosure was inadequate even if she knew a background check had been performed. In coming to its conclusion, Rodriguez reasoned that even if the plaintiff was not aware a violation had occurred, she was "aware of the facts that gave rise to her claim." (Ibid.) More particularly, the plaintiff "knew what forms she had agreed to, and therefore had the facts that would form the basis of any alleged violation of the federal and state disclosure acts." (Ibid.)
This decision was later reversed and remanded on other grounds in Rodriguez v. U.S. Healthworks, Inc. (9th Cir. 2020) 813 Fed.Appx. 315, 316. Though not binding on our court, we may consider even unpublished federal district court opinions as persuasive authority. (Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419, 1432, fn. 6.)
We find the Rodriguez court's reasoning persuasive. As set forth in Mack, supra, 748 F.3d 663, it is not the discovery of a legal violation that triggers the running of a limitations period based on the discovery rule; it is the facts that give rise to a claim that trigger the statute of limitations. (Id. at pp. 665-666.) Here, Scott argues she could only have had constructive notice of her FCRA claim if she knew or should have known that Amazon was using a noncompliant form that contained extraneous material in violation of 15 United States Code section 1681b(b)(2)(A)'s standalone disclosure requirement. But the noncompliance of Amazon's form with the FCRA is not a fact giving rise to a violation; it is a component of the legal violation itself. (See Rodriguez, supra, 388 F.Supp.3d at p. 1105.) Thus, we conclude that Scott was only required to have had actual or constructive notice that she was provided with a disclosure form.
Here, the record reflects that Scott was aware a disclosure document was presented to her before she began her employment with Amazon. In fact, the record indicates that Scott admitted in her supplemental responses to Amazon's requests for admission that she was presented with the Background Check Disclosure Document. Thus, the evidence established that Scott was aware of the relevant fact giving rise to her claim - namely, that she had been provided with a background check disclosure form.
As for whether Scott had constructive notice of the fact a background check had been performed, she does not challenge the trial court's finding that there was no triable issue of material fact relative to this issue. And the record is clear that Scott had constructive notice of this fact as she read Amazon's employment offer email that stated the "offer [wa]s contingent upon completing the required background check information" and "successfully passing [the] background check," and testified at her deposition that she understood that by the time she began her employment on October 31, 2016, she had completed all the steps needed to become an Amazon employee. The record is also clear that Scott did not pursue any of the available channels through which she could have inquired and immediately discovered that Amazon had run a background check on her, including contacting the background check vendor, checking with Amazon about this issue, or checking a box on her employment application that allowed her to request a free copy of her background check report. This is despite the fact that she understood as of October 21, 2016, she had completed all steps needed to become an Amazon employee, which included the successful passing of a background check.
Based on the foregoing, we conclude the evidence establishes that by the time Scott began her employment on October 31, 2016, and perhaps even as early as October 21, 2016, when Scott received an email regarding the scheduling of her new-hire orientation, Scott had constructive notice of the relevant facts giving rise to her FCRA claim. (See Rodriguez, supra, 388 F.Supp.3d at p. 1105.) But she did not bring her action until January 3, 2020. This was well after the two-year limitations period based on constructive discovery under section 1681p of the FCRA. As such, the trial court did not err in finding that Scott's claim was time-barred.
DISPOSITION
The judgment is affirmed. Amazon is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
We concur: BROWN, P. J., GOLDMAN, J.
[*] Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.