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Overview: California's Identity Theft Statute

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Relief Available For a Victim of Identity Theft

California's Identity Theft Statute


    California allows a victim of "identity theft" to bring an action (or file a cross-complaint) against a "claimant" who is attempting to collect a debt from the victim of identity theft to establish that the person is a victim of identity theft in connection with the claimant's claim against that person. The victim who proves, by a preponderance of the evidence (more than 50%), that he or she is a victim of identity theft as to a particular claim, is entitled to a judgment for all of the following, as appropriate:

     (1) A declaration that he or she is not obligated to the claimant on that claim.

     (2) A declaration that any security interest or other interest the claimant had purportedly obtained in the victim's property in connection with that claim is void and unenforceable.

     (3) An injunction restraining the claimant from collecting or attempting to collect from the victim on that claim, from enforcing or attempting to enforce any security interest or other interest in the victim's property in connection with that claim, or from enforcing or executing on any judgment against the victim on that claim.

     (4) If the victim has filed a cross-complaint against the claimant, the dismissal of any cause of action in the complaint filed by the claimant based on a claim which arose as a result of the identity theft.

     (5) 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.

     (6) A civil penalty, in addition to any other damages, of up to thirty thousand dollars ($30,000) 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.

     "Claimant" means a person who has or purports to have a claim for money or an interest in property in connection with a transaction procured through identity theft. (Civil Code 1798.92. (a))

     "Identity theft" means the unauthorized use of another person' s personal identifying information to obtain credit, goods, services, money, or property. (Civil Code 1798.92. (b))

     "Personal identifying information" means a person's name, address, telephone number, driver's license number, social security number, place of employment, employee identification number, mother's maiden name, demand deposit account number, savings account number, or credit card number. (Civil Code 1798.92. (c))

     "Victim of identity theft" means a person who had his or her personal identifying information used without authorization by another to obtain credit, goods, services, money, or property, and did not use or possess the credit, goods, services, money, or property obtained by the identity theft, and filed a police report in this regard pursuant to Section 530.5 of the Penal Code. (Civil Code 1798.92. (d))

     Further, the court has continuing jurisdiction over the action or cross-complaint in order to provide for the joinder of related causes of action based on the theft of the same person's identity and the joinder of further defendants based upon the theft of the same person's identity, regardless of whether a final judgment has been entered as to any defendant, for a period ending 10 years after filing of the original action unless the court, prior to that date, finds good cause to extend jurisdiction over the matter. (Civil Code 1798.95).

     The action, or any joinder of a defendant needs to be brought within four years of the date the person who alleges that he or she is a victim of identity theft knew or, in the exercise of reasonable diligence, should have known of the existence of facts which would give rise to the bringing of the action or joinder of the defendant.

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* Penal Code 530.5 provides:

    (a) Every person who willfully obtains personal identifying information, as defined in subdivision (b), of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, or medical information in the name of the other person without the consent of that person, is guilty of a public offense, and upon conviction therefor, shall be punished either by imprisonment in a county jail not to exceed one year, a fine not to exceed one thousand dollars ($1,000), or both that imprisonment and fine, or by imprisonment in the state prison, a fine not to exceed ten thousand dollars ($10,000), or both that imprisonment and fine.

     (b) "Personal identifying information," as used in this section, means the name, address, telephone number, health insurance identification number, taxpayer identification number, school identification number, state or federal driver's license number, or identification number, social security number, place of employment, employee identification number, mother's maiden name, demand deposit account number, savings account number, checking account number, PIN (personal identification number) or password, alien registration number, government passport number, date of birth, unique biometric data including fingerprint, facial scan identifiers, voiceprint, retina or iris image, or other unique physical representation, unique electronic data including identification number, address, or routing code, telecommunication identifying information or access device, information contained in a birth or death certificate, or credit card number of a person, or an equivalent form of identification.

     (c) In any case in which a person willfully obtains personal identifying information of another person, uses that information to commit a crime in addition to a violation of subdivision (a), and is convicted of that crime, the court records shall reflect that the person whose identity was falsely used to commit the crime did not commit the crime.

     (d) Every person who, with the intent to defraud, acquires, transfers, or retains possession of the personal identifying information, as defined in subdivision (b), of another person is guilty of a public offense, and upon conviction therefor, shall be punished by imprisonment in a county jail not to exceed one year, or a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.

     (e) Every person who, with the intent to defraud, acquires, transfers, or retains possession of the personal identifying information, as defined in subdivision (b), of another person who is deployed to a location outside of the state is guilty of a public offense, and upon conviction therefor, shall be punished by imprisonment in a county jail not to exceed one year, or a fine not to exceed one thousand five hundred dollars ($1,500), or by both that imprisonment and fine.

     (f) For purposes of this section, "deployed" means that the person has been ordered to serve temporary military duty during a period when a presidential executive order specifies that the United States is engaged in combat or homeland defense and he or she is either a member of the armed forces, or is a member of the armed forces reserve or the National Guard, who has been called to active duty or active service. It does not include temporary duty for the sole purpose of training or processing or a permanent change of station.

     (g) For purposes of this section, "person" means a natural person, firm, association, organization, partnership, business trust, company, corporation, limited liability company, or public entity.


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The Law Office of MICHAEL R. QUIRK

1615 Bonanza Street, Ste. 207

Walnut Creek, California 94596

NOTICE: Information printed here is not legal advice.  The information is general in nature, and is not intended as a substitute for legal advice or a legal opinion on a specific individual fact scenario. Individual rights, remedies and obligations vary; laws frequently change. Your specific facts should be reviewed by this office, or another California attorney emphasizing auto dealer fraud, lemon law, fair debt collection, credit protection, and other consumer fraud and consumer law issues, before taking any action. Site content approved by Michael R. Quirk.

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