Oral Argument April 21, 2015
Appeal from King County Superior Court. Docket No: 13-2-39897-4. Judge signing: Honorable Mary E Roberts. Judgment or order under review. Date filed: 05/02/2014.
Eric Dunn (of Northwest Justice Project ), for appellants.
Avi J. Lipman (of McNaul Ebel Nawrot & Helgren PLLC ) ( Michael J. Saltz, of counsel), for respondent.
Authored by Mary Kay Becker. Concurring: Michael J. Trickey, Linda Lau.
Mary Kay Becker, J.
[187 Wn.App. 844] ¶ 1 The element of injury to business or property in a consumer protection action is sufficiently pleaded when a consumer reporting agency unlawfully withholds information from a person who is entitled to receive it. The plaintiffs' complaint in this matter was improperly dismissed and must be reinstated.
¶ 2 The plaintiffs, appellants in this matter, are Brian and Karen Handlin. Their complaint alleges that respondent On-Site Manager Inc., a consumer reporting agency, violated the Washington Fair Credit Reporting Act, chapter 19.182 RCW, and that On-Site's violations are actionable under the Consumer Protection Act, chapter 19.86 RCW. On-Site successfully moved to dismiss under CR 12(b)(6). The Handlins appeal.
¶ 3 Whether a complaint was properly dismissed under CR 12(b)(6) is a question of law this court reviews de novo. Tenore v. AT& T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998), cert. denied, 525 U.S. 1171 [187 Wn.App. 845] (1999). On-Site incorrectly presents its argument under the standard set for Federal Rule of Civil Procedure 12(b)(6), which requires dismissal
of a complaint when plaintiffs " have not nudged their claims across the line from conceivable to plausible." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Our Supreme Court does not follow Twombly and Iqbal. McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 101-02, 233 P.3d 861 (2010). Under CR 12(b)(6), dismissal is appropriate only if it appears beyond doubt that the plaintiffs cannot prove any set of facts that would justify recovery. Tenore, 136 Wn.2d at 329-30; McCurry, 169 Wn.2d at 101. The Handlins' allegations must be accepted as true, and a court may consider hypothetical facts not included in the record. Tenore, 136 Wn.2d at 330. CR 12(b)(6) motions should be granted sparingly and with care. Bravo v. Dolsen Cos., 125 Wn.2d 745, 750, 888 P.2d 147 (1995).
¶ 4 According to the complaint, the Handlins applied for tenancy at the Forestview apartment complex in Renton on August 5, 2013. Forestview collected a tenant screening fee from the Handlins and purchased consumer reports about them from On-Site. The On-Site reports gave the Handlins a low rental score (4.5 out of 10) and recommended that their application be denied. Forestview told the Handlins their application was being denied based on On-Site's recommendation.
¶ 5 Karen Handlin telephoned On-Site and was told that a 2008 eviction lawsuit was the main reason for the low rental score. She informed On-Site that the 2008 lawsuit had been resolved in favor of the Handlins. On-Site told ...