                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 31 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SEUNGTAE KIM, an individual,                    No.    15-56801

                Plaintiff-Appellee,             D.C. No.
                                                2:14-cv-01752-BRO-JC
 v.

BMW FINANCIAL SERVICES NA LLC, a                MEMORANDUM*
business entity,

                Defendant-Appellant.

                  Appeal from the United States District Court
                      for the Central District of California
                Beverly Reid O’Connell, District Judge, Presiding

                       Argued and Submitted July 14, 2017
                              Pasadena, California

Before: PREGERSON and WARDLAW, Circuit Judges, and CHEN,** District
Judge.

      Plaintiff Seungtae Kim brought this action asserting federal and state

statutory claims in connection with alleged wrongful credit reporting on the part of

Defendant BMW Financial Services NA, LLC (“BMW FS”). Kim maintained that


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
he had been the victim of identity theft, and that BMW FS insufficiently

investigated his claim. After a jury awarded Kim $250,000 under the Fair Credit

Reporting Act (“FCRA”) for injury to reputation or creditworthiness, $150,000

under the California Identity Theft Law (“CITL”) for noneconomic damages, and

assessed a civil penalty of $30,000 under the CITL, BMW FS moved for judgment

as a matter of law under Federal Rule of Civil Procedure 50(b), arguing that the

evidence in the record was insufficient to support: (1) the jury’s verdict on Kim’s

claim under the FCRA, and (2) the jury’s award of civil penalties under the CITL.

BMW FS also moved for a new trial under Federal Rule of Civil Procedure 59 on

the grounds that: (1) the damages awarded by the jury for the FCRA claim were

unsupported by evidence in the record, and (2) the district court erred by refusing a

requested jury instruction. The district court denied the motions, and BMW FS

appeals. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

      1.     The district court correctly denied BMW FS’s motion for judgment as

a matter of law with respect to Kim’s claim under the FCRA, 15 U.S.C. § 1681 et

seq. A “jury’s verdict must be upheld if it is supported by ‘substantial evidence.’”

S.E.C. v. Todd, 642 F.3d 1207, 1215 (9th Cir. 2011) (quoting Maynard v. City of

San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994)).

      Kim presented evidence of actual damages to reputation or creditworthiness:

he was denied credit by Bank of America, Toyota, and Audi as a result of BMW


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FS’s derogatory credit reporting and was not denied credit after the derogatory

trade line was removed. The jury could reasonably have inferred that Kim’s

creditworthiness or reputation was harmed by BMW FS’s reporting. See Josephs

v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006) (“We must . . . draw all

reasonable inferences in [the nonmoving] party’s favor.”).

      2.     The district court properly denied BMW FS’s motion for a new trial

on the amount of damages awarded under the FCRA claim. “We review the

district court’s ruling on a motion for a new trial under Rule 59(a) for an abuse of

discretion.” E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 962 (9th Cir.

2009). Kim’s testimony that he was denied credit three times after BMW FS’s

negative reporting—despite the fact that he previously had good enough credit to

purchase three different vehicles—provided evidence that the harm to Kim’s

creditworthiness was substantial. In addition, Kim presented expert testimony that

derogatory reports (which indicated his car was repossessed) carry serious

consequences, including lower credit scores and a reduced ability to obtain

employment. In light of the inherent difficulty in quantifying damages for injury

to creditworthiness or reputation, the district court did not abuse its discretion in

concluding that there was sufficient evidence to support the jury’s award of

$250,000 for the FCRA claim.




                                           3                                     15-56801
         3.    The district court properly denied BMW FS’s motion for judgment as

a matter of law. In its motion, BMW FS asserted there was insufficient evidence to

justify a civil penalty under the CITL, Cal. Civ. Code § 1798.93(c)(6). BMW FS

concedes that it waived this claim below by failing to raise it during its initial

motion under Rule 50(a). Accordingly, we are “limited to reviewing the jury’s

verdict for plain error, and should reverse only if such plain error would result in a

manifest miscarriage of justice.” Go Daddy, 581 F.3d at 961 (quoting Janes v.

Wal-Mart Stores Inc., 279 F.3d 883, 888 (9th Cir. 2002)). There was no such plain

error.

         The CITL provides for a civil penalty where a victim establishes by clear

and convincing evidence “[t]hat 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,” among other requirements. Cal.

Civ. Code § 1798.93(c)(6)(C). The civil penalty provision of the CITL “does not

apply to a ‘claimant’ who no longer has a claim at the time the lawsuit is filed.”

Satey v. JPMorgan Chase & Co., 521 F.3d 1087, 1093 (9th Cir. 2008).

         BMW FS argues that because it had not engaged in any active collection

efforts against Kim after the suit was filed, it had not “continued to pursue its

claim” against Kim within the meaning of the statute. Cal. Civ. Code §

1798.93(c)(6)(C). BMW FS makes essentially two arguments: first, that in order


                                           4                                     15-56801
to “pursue” a claim, a claimant must actively attempt to collect, and second, that

such collection efforts must persist after the suit was filed. Satey forecloses both

arguments, making clear that a claimant must simply “ha[ve] a claim at the time

the lawsuit is filed.” 521 F.3d at 1093 (emphasis added). Here, BMW FS listed

the derogatory trade line at issue at the time the action was commenced. BMW FS

presents no authority that maintaining such a derogatory credit line is not pursuit of

a claim under the CITL. Accordingly, there was no plain error in the jury’s award

of civil penalties under the CITL.

      4.     Finally, BMW FS contends that it is entitled to a new trial because the

district court erred in refusing to give a requested jury instruction regarding the

meaning of a “reasonable” investigation under FCRA. “We review challenges to

the district court’s formulation of the jury instructions for an abuse of discretion by

determining whether the instructions, considered as a whole, were inadequate or

misleading.” Masson v. New Yorker Magazine, Inc., 85 F.3d 1394, 1397 (9th Cir.

1996) (quoting Gizoni v. Southwest Marine Inc., 56 F.3d 1138, 1142 n.5 (9th Cir.

1995)).

      Here, the district court fully instructed the jury on the elements of a claim

under FCRA, including the requirement that any investigation be “reasonable.”

See Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1152 (9th Cir. 2009).

BMW FS challenges not the accuracy of this instruction, but rather the district


                                           5                                    15-56801
court’s refusal to instruct the jury on additional language from the Gorman

opinion. However, the instructions as a whole were not inadequate or misleading;

they correctly described the requirement that any investigation be “reasonable.”

Accordingly, the district court did not abuse its discretion in declining to give

BMW FS’s requested instruction.

      AFFIRMED.




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