IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON BRIAN and KAREN HANDLIN, Appellants,

v. ON-SITE MANAGER, INC., Respondent. No. 71954-8-1 DIVISION ONE

PUBLISHED OPINION FILED: May 26, 2015 Becker, J. — The element of injury to business or property in a consumer protection action is sufficiently pleaded when a consumer reporting agency 

### unlawfullywithholds information from a person who is entitled to receive it. The plaintiffs' complaint in this matterwas improperly dismissed and must be
reinstated. 

### 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 ProtectionAct, 

### chapter 19.86 RCW. On-Site successfully moved to dismiss under CR 12(b)(6). The Handlins appeal. Whether a complaintwas properly dismissed under CR 12(b)(6) is a 

### question of law this court reviews de novo. Tenore v.AT&TWireless Servs., 136No. 71954-8-1/2 

### Wn.2d 322, 329-30, 962 P.2d 104 (1998), cert denied, 525 U.S. 1171 (1999). 

### On-Site incorrectly presents its argument underthe standard setfor Federal Rule ofCivil Procedure 12(b)(6), which requires dismissal of a complaintwhen 

### plaintiffs "have not nudged their claims across the line fromconceivable to plausible." BellAtl. Corp. v. Twomblv. 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 notfollow Twomblv and Iqbal. McCurrv v. Chew Chase Bank. FSB. 169 Wn.2d 96, 101-02, 233 P3d 

### 861 (2010). Under CR 12(b)(6), dismissal is appropriate only if itappears 

### beyond doubt that the plaintiffs cannot prove any setof facts which wouldjustify recovery. Tenore. 136 Wn.2d at 329-30; McCurrv. 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. 136Wn.2d at 330. CR 12(b)(6) motions should be granted sparingly and with care. Bravov. Dolsen Cos., 125 Wn.2d 745, 750, 888 P.2d 147 (1995). 

### According to the complaint, the Handlins applied fortenancy at the 

### Forestview apartmentcomplex in Renton onAugust 5, 2013. Forestview collected a tenant screening fee fromthe 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 toldthe Handlins their application was being denied based on OnSite's recommendation.No. 71954-8-1/3
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 ofthe Handlins. On-Site told her the litigation appeared to still be pending. On August 9, 2013, Karen Handlin provided Forestview with documents showing thatthe 2008 eviction lawsuit had been resolved inthe Handlins' favor. Forestview faxed these documents to On-Site. On-Site corrected its reportto reflect that the lawsuit had been dismissed and advised Forestview ofthis change. However, Forestview continued to tell the Handlins thattheir application would not be approved, citing negative information from On-Site. On August 13, 2013, the Handlins requested copies oftheir screening reports through On-Site's web site. They hoped to find outwhat additional negative information was responsible for Forestview's continued rejection oftheir application. On-Site did not respond. Three days later, the Handlins sentthe request through counsel by e-mail, fax, and certified mail, accompanied by signed release-of-information forms. Meanwhile, the Handlins began to search for another apartment. They found one on August 21, 2013, thatwas not as suitable for them as Forestview would have been. But with less than two weeks remaining on theirthen-current lease, time was ofthe essence. They signed a lease, paid a $250 deposit, and began moving that same day. The next day, the Handlins learned that Forestview would accept their application ifthey agreed to pay an increased security deposit.No. 71954-8-1/4 

### On August 24, 2013, the Handlins' attorney received a letter from On-Site stating thatthe requested reports would not be produced untilthe Handlins submitted identification. Although the Handlins were no longer in a position to pursue housing at Forestview, they were stillinterested in seeing theirtenant 

### screening reports. On August 26, 2013, they faxed copies of their driver's licenses to On-Site. The next day, On-Site sent copies ofthe screening reports 

### to the Handlins by mail, which they received on August 30, 2013. The material sent to the Handlins did not include their rental scores or On-Site's tenancy 

### recommendation. Certain mandatory disclosures aboutthe Handlins' Fair Credit Reporting Act rights and remedies were also omitted. The Fair Credit Reporting Act requires a consumer reporting agency to make certain disclosures upon requestfrom a consumer. Ifa reporting agency 

### receives a requestfrom a consumer, itmustdisclose all information in its files on that consumer, identifythe sources ofthat information, and identify allpersons 

### who sought or obtained a consumer report aboutthat consumerwithin the preceding six months. See RCW 19.182.070. Ifthe consumer reporting agency calculates a credit score, then itmust also provide an explanation ofthe meaning ofthe credit score. RCW 19.182.080(5). The disclosures must be provided "on reasonable notice," and by any "reasonable means that are available to the


### consumer reporting agency ifthat means is authorized by the consumer." RCW 19.182.080(1), (2)(c). Witheach written disclosure, the consumer reporting 

### agency must provide the consumerwith "awritten summary of all rights and remedies the consumer has underthis chapter." RCW 19.182.080(7)(a).No. 71954-8-1/5
The complaint alleges that On-Site violated the provisions cited above by 

### unreasonably delaying the disclosure ofthe requested information and omitting

some ofthe materials the Handlins were entitled to receive. These acts are 

### alleged to be actionable as per se violations ofthe Consumer ProtectionAct. RCW 19.86.020, .090: see also RCW 19.182.150. The complaint states the Handlins are entitled to damages and injunctive relief due to the "economic and 

### non-economic injuries" they suffered "as a direct and proximate result" of OnSite's violations ofthe Consumer Protection Act. The Consumer ProtectionAct provides a private right ofaction for litigants to redress unfair or deceptive acts or practices that occur intrade or commerce. 

### RCW 19.86.020. To prevail, consumer protection plaintiffsmustestablish five distinct elements: (1) an unfair or deceptive act or practice, (2) occurring intrade


### or commerce, (3) that impacts the public interest, (4) causes injury to the plaintiff in his or her business or property, and (5) causation. Hangman Ridge Training Stables. Inc. v. Safeco Title Ins. Co.. 105 Wn.2d 778, 780, 719 P.2d 531 (1986). The first two elements may be established by showing thatthe alleged act 

### constitutes a per se unfair trade practice. Aper se unfair trade practice exists when the defendant has violated a statute which has been declared by the 

### legislature to constitute an unfair or deceptive act intrade or commerce. Hangman Ridge. 105 Wn.2d at 785-87. The public interest element may also be 

### satisfied per se by "showing that a statute has been violated which contains a 

### specific legislative declaration of public interest impact." Hangman Ridge. 105 Wn.2dat791. Washington's Fair Credit Reporting Act is such a statute. ItNo. 71954-8-1/6
contains a legislative finding "thatthe practices covered by this chapter are matters vitally affecting the public interestfor the purpose ofapplying the

consumer protection act, chapter 19.86 RCW," and itdeclares that a violation is

an unfair and deceptive act or practice in trade or commerce: Violations ofthis chapter are not reasonable in relation to the development and preservation ofbusiness. Aviolation ofthis chapter is an unfair or deceptive act intrade or commerce and an unfair method ofcompetition for the purpose ofapplying the consumer protection act, chapter 19.86 RCW. The burden ofproof in an action alleging a violation ofthis chapter shall be by a preponderance ofthe evidence, and the applicable statute of limitation shall be as setforth in RCW 19.182.120. For purposes of ajudgment awarded pursuantto an action by a consumer under chapter 19.86 RCW, the consumer shall be awarded actual damages and costs ofthe action togetherwith reasonable attorney's fees as determined by the court. However, where there has been willful failure to comply with any requirement imposed underthis chapter, the consumer shall be awarded actual damages, a monetary penalty ofone thousand dollars, and the costs ofthe action together with reasonable attorneys' fees as determined by the court. RCW 19.182.150. On-Site does not dispute that the Handlins' complaint sufficiently pleads the first three elements of a consumer protection cause ofaction. On-Site's argument is directed atthe last two elements, injury and causation. Atthe outset, we reject On-Site's argumentthat the complaint was insufficient because it did not specifically allege "actual damages," a term used in RCW 19.182.150, the section quoted above. The Fair Credit Reporting Act is designed so that violations can be enforced as a consumer protection violation. There are five elements to a consumer protection act claim. Actual damages is not one ofthem. Underthe Consumer ProtectionAct, "injury" is broaderthanNo. 71954-8-1/7 

### "damages." Panag v. Farmers Ins. Co. ofWash., 166 Wn.2d 27, 58, 204 P.3d 885 (2009). "Monetary damages need not be proved; unquantifiable damages 

### may suffice." Panag, 166 Wn.2d at 58; accord Mason v. Mortg. Am.. Inc., 114 Wn.2d 842, 854, 792 P.2d 142 (1990). "The failure to show actual monetary 

### damages only precludes the recovery oftreble damages. Itdoes not act as a 

### complete bar to a recovery." St. Paul Fire & Marine Ins. Co. v. Updeqrave, 33 Wn. App. 653, 660, 656 P2d 1130 (1983). 

### The central question here is whetherthe complaint sufficientlyalleges an 

### injuryto business or propertycaused by On-Site's violations. The trial court 

### recognized that On-Site's report to Forestviewcaused Forestview to delay offering the Handlins tenancy until itwas too late for them to accept it. As a result ofForestview's initial decision to deny their application, the Handlins did 

### not get the apartment they wanted and theyincurred expense and inconvenience 

### finding another apartmentbeforetheirlease ranout. Butas thetrial courtsawit, their complaint did not allege that the situationwith Forestview would have been 

### resolveddifferently ifOn-Site had responded morepromptly and completelyto 

### the request for tenant screening information. The court dismissed "on the basis that the plaintiffs have notalleged an actual injury." 

### Aninjuryto property occurs when one's right to possess, use, or enjoy a determinate thinghas been affected in the slightest degree. Ambach v. French. 167 Wn.2d 167, 172, 216 P.3d 405 (2009). A sufficient injury is therefore pleaded 

### ifa plaintiffalleges that she was deprived of the use of her property for even a short amount oftime. Sorrel v. Eagle Healthcare. Inc.. 110 Wn. App. 290, 298-No. 71954-8-1/8 99, 38 P.3d 1024. review denied. 147 Wn.2d 1016 (2002). The Handlins argue thatthe consumerdisclosures mandated by the act are a form ofproperty. On-Site points outthatthe Washington Fair Credit Reporting Act does not say that the consumerreporting agency must disclose copies ofactual reports; it commands disclosure of all "items ofinformation" inthe agency's files on that
consumer. RCW 19.182.070(2) ("Disclosures to consumer"). According to OnSite, the complaint is fatally defective because the violation alleged by the Handlins was a failure to send them copies oftheirtenant screening reports, their tenant scores, and On-Site's recommendation to Forestview. On-Site claims these reports are not property because they are not physically stored inthe Handlins' file. This hypertechnical argument cannot sustain dismissal given Washington's liberal standard under CR 12(b)(6) and the mandate for liberal construction ofthe Consumer ProtectionAct. When a consumer reporting agency assembles information about a consumer's creditworthiness to sell to landlords like Forestview, the information has commercial utility for the consumer
as well as for landlords. See RCW 19.182.005 (legislature declares "that
consumers have a vital interest inestablishing and maintaining creditworthiness.") The Fair Credit Reporting Act is designed to benefit
consumers by giving them the same right ofaccess to their credit information as is available to landlords, employers, or others who are evaluating their creditworthiness. The format in which the information is stored and disclosed is not material to the plaintiffs' pleading obligations under CR 12(b)(6).

8No. 71954-8-1/9 

### The Handlins had a right to use and possess information inOn-Site's files. On-Site's alleged violations of the Fair Credit Reporting Actdeprived the Handlins of their right to obtain informationthat has commercial utilityfor them. Their complaint sufficientlyalleges that On-Site's unfairtrade practice caused them an actionable "injury" to "property" inthe sense thatthose terms are used in the Consumer Protection Act. See Ambach. 167 Wn.2d at 172-77. 

### Inaddition to damages and an award ofattorney fees and costs, the 

### complaint requested several forms of injunctive reliefagainst On-Site under RCW 19.182.150 and RCW 19.86.090: a. An ordercommanding On-Site to produce complete 

### copies ofthe Handlins' screening reports, including all rental scores, recommendations, and all other disclosures required by law; 

### b. An ordercommanding On-Site to cease and desistfrom 

### violating RCW 19.182.070 and .080 byfailing to provide full and complete consumerdisclosures when requested by a consumer; c. An ordercommanding On-Site to cease and desistfrom violating RCW 19.182.080 by failing to provide consumer 

### disclosures by e-mail or fax when requested by e-mail or fax; d. Anordercommanding On-Site to cease and desistfrom 

### violating RCW 19.182.080 byfailing to make consumerdisclosures promptly upon receiving a consumer's requestfordisclosures; e. An ordercommanding On-Site to cease and desistfrom 

### violating RCW 19.182.090 byfailing to make all required disclosures promptly upon completing a reinvestigation ofdisputed information. 

### On-Site contends thatthe requests for injunctive reliefmust be dismissed because the Washington Fair Credit Reporting Act does not expressly list 

### injunctive reliefas a remedy. This argument lacks merit. The statute states that violations ofthe Fair Credit Reporting Act are to be pleaded underthe Consumer Protection Act. RCW 19.182.150. And the Consumer Protection Act doesNo. 71954-8-1/10
authorize injunctive relief. Scottv. CinqularWireless. 160 Wn.2d 843, 853, 161 P.3d 1000 (2007) ("Consumers bringing actions underthe CPAdo not merely vindicate their own rights; they represent the public interest and may seek injunctive reliefeven when the injunction would not directly affecttheir own private interests.") On-Site also argues thatthe authority to grant injunctive reliefagainst a credit reporting agency belongs exclusively to the Federal Trade Commission. If the Handlins prevail, their requestfor an ordercommanding On-Site to produce information concerning them could not possibly interfere with federal law. It is also difficult to see how the simple cease and desist orders requested by the Handlins would subvertfederal regulatory interests either as a matter offederal preemption or under RCW 19.86.170. More likely, such orders would complementfederal regulation. We decline to hold that the injunctive relief requested should be dismissed as a matter of law. The trial court can decide issues related to injunctive reliefin due course. On-Site's requestfor an award ofattorney fees is denied. Reversed and remanded for reinstatement ofthe complaint.

WE CONCUR: 

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