Judge: Armen Tamzarian, Case: 23STCV03484, Date: 2024-03-21 Tentative Ruling

Case Number: 23STCV03484    Hearing Date: March 21, 2024    Dept: 52

Defendant TransUnion Rental Screening Solutions, Inc.’s Demurrer and Motion to Strike Portions of Plaintiffs’ Complaint

Defendant TransUnion Rental Screening Solutions, Inc. (TransUnion) demurs to all three causes of action alleged in the complaint by plaintiffs Tadeh Davtian, Lauren Gordon, and Gabriella Mitry.  (Several other plaintiffs named in the caption were later dismissed.)  TransUnion also moves to strike numerous portions of the complaint.

Requests for Judicial Notice

            Plaintiffs request judicial notice of two complaints in other actions.  Though the documents are court records subject to judicial notice under Evidence Code § 452(d), they are not relevant or necessary to the court’s analysis.  (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6; Appel v. Superior Court (2013) 214 Cal.App.4th 329, 342, fn. 6.) 

Both requests for judicial notice are denied.

Demurrer

1. Violation of Investigative Consumer Reporting Agencies Act (ICRAA)

            Plaintiffs do not allege sufficient facts for this cause of action against TransUnion.  The ICRAA (Civ. Code, § 1786, et seq.) imposes separate obligations on two categories of potential defendants.  First, as to an “investigative consumer reporting agency” (Civ. Code, § 1786.2(d)), the law requires numerous things.  (§§ 1786.10, 1786.11, 1786.12, 1786.18, 1786.20, 1786.22, 1786.24, 1786.26, 1786.28, 1786.29, 1786.30.)  Second, the statute has other requirements for “the person requesting the report” (§ 1786.12(e)), also referred to as “the person seeking the investigative consumer report” (§ 1786.16(a)(2)), “[t]he person procuring or causing the report to be made” (id., subds. (2)(A) & (B)), or “the user of the investigative consumer report” (§ 1786.40(a)).

            In this case, the person requesting the report is defendant Equity Residential Management, LLC, who sought reports “in connection with the hiring of a dwelling unit.”  (Civ. Code, § 1786.16(a)(3).)  TransUnion, meanwhile, is the “investigative consumer reporting agency” that is “in the practice of collecting, assembling, evaluating, compiling, reporting, transmitting, transferring, or communicating information concerning consumers for the purposes of furnishing investigative consumer reports to third parties.”  (§ 1786.2(d).)

            The complaint alleges only the first category of violations (Comp., ¶¶ 43-46), which apply to the requestor, not the reporting agency.  It alleges “Defendants failed to comply with” provisions applicable to the “person requesting an ‘investigative consumer report.’ ” (¶ 43.)  It further alleges, “Defendants did not provide a box to check, did not provide a consent form or disclosure, did not provide copies of any of the numerous reports obtained about the Plaintiffs, and did not supply the names or addresses of the investigative consumer reporting agencies making the reports.”  (Ibid.)  The latter alleged violation means the landlord, Equity Residential Management, LLC, did not supply the name of the moving defendant, TransUnion.  The complaint does not allege any violation applicable to the investigative consumer reporting agency itself.

            Plaintiffs’ opposition argues TransUnion’s demurrer relies on “transcriptional incongruencies” that could “be cured by amendment.”  (Opp., p. 3.)  Plaintiffs further argue, “This minor wording issue can be simply addressed with amendment.”  (Ibid.)  That these problems could be cured by amendment is not a basis for overruling the demurrer.  The potential for amendment is a reason to sustain the demurrer with leave to amend.    

2. Invasion of Privacy

            Plaintiffs do not allege sufficient facts for this cause of action against TransUnion.  “[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.”  (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40 (Hill).)

            Plaintiffs do not allege sufficient facts for the second element.  They had no reasonable expectation of privacy in the circumstances because they consented to release their information.  The complaint alleges, “Equity Residential Management, LLC required Plaintiffs to complete an ‘Application’ and to consent to a release of information” (¶ 23), and “Plaintiffs completed the required ‘Application’ that included a consent to release of information” (¶ 25). 

            Plaintiffs also do not allege sufficient facts for the third element.  “Actionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.  Thus, the extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy.”  (Hill, supra, 7 Cal.4th at p. 37.) 

Any invasion of privacy was not serious.  Plaintiffs allege only that defendants did not comply with certain requirements related to informing plaintiffs of their rights when a landlord requests an investigative report.  “ICRAA states that ‘[a]n investigative consumer reporting agency’ may provide an ‘investigative consumer report’ to a person other than the subject of the report under limited circumstances.”  (Connor v. First Student, Inc. (2018) 5 Cal.5th 1026, 1032.)  Those circumstances include when the person requesting the report “[i]ntends to use the information in connection with the hiring of a dwelling unit.”  (Civ. Code, § 1786.12(d)(4).)  That is what plaintiffs allege happened.  They “applied for housing” (¶ 21), and the landlord “requested and obtained investigative consumer reports about the Plaintiff during the processing of the Plaintiffs’ applications for an apartment” (¶ 22).    

Assuming plaintiffs corrected the “transcriptional incongruencies” in their complaint, the substance of the allegations is not that TransUnion disclosed private information to anyone other than Equity Residential, who had a valid purpose to request it.  The alleged violations are that, though the private information was disclosed to the correct person, that person did not: “provide a means by which the Plaintiffs could indicate that he or she wished to receive a copy of any report prepared in connection with the application,” “provide a consent form or disclosure with a box to check” (¶ 31), “agree to provide a copy of any of the reports prepared about the Plaintiffs” (¶ 32), “notify the Plaintiffs in writing that an investigative consumer report would be made” (¶ 33), “notify Plaintiffs of the name or address of the investigative consumer reporting agency that would prepare the reports” (¶ 34), “provide a summary of the provisions of” ICRAA (¶ 35), or “provide copies of any reports to the Plaintiffs.”  (¶ 36.) 

None of these alleged violations concern plaintiffs’ privacy rights.  They concern the process of a request for information and plaintiffs’ right to know what information about them was being transmitted—not to limit the information transmitted.  These allegations do not constitute an egregious breach of social norms.  At most, they constitute a breach of certain statutory requirements.    

             Plaintiffs’ opposition argues, “[S]tatutes may form the basis for recognizing a plaintiff’s reasonable expectation of privacy, such as the ICRAA with in rentals.”  (Opp., p. 4.)  Plaintiffs then quote Civil Code section 1786.52, which provides, “Nothing in this chapter shall in any way affect the right of any consumer to maintain an action against an investigative consumer reporting agency, a user of an investigative consumer report, or an informant for invasion of privacy or defamation.”  The ICRAA does not “in any affect” plaintiffs’ tort claims for invasion of privacy, meaning the tort should be analyzed independent of the statute. 

Moreover, though plaintiffs allege they consented to release this information about them, ICRAA does not require their consent.  Civil Code section 1786.12(f) provides, “An investigative consumer reporting agency shall not furnish an investigative consumer report to a person described in subdivision (d) if that report contains medical information about a consumer, unless the consumer consents to the furnishing of the report.”  Thus, no consent is required unless the report contains medical information.  Plaintiffs do not allege that.  They allege the information in the reports concerned “each of the Plaintiffs’ character, reputation, or mode of living.”  (Comp., ¶ 24.)  The statute does not even require plaintiffs’ consent and therefore does not form a basis for a reasonable expectation of privacy in this information. 

3. Declaratory Relief

            Plaintiffs do not allege sufficient facts for declaratory relief for the same reasons as the first cause of action.  “[T]he essence of an action for declaratory relief is an allegation showing that either an actual (present), or probable future, controversy exists relating to the legal rights and duties of the parties, coupled with a request that those rights and duties be adjudged by the court.”  (Sherwyn & Handel v. Department of Social Services (1985) 173 Cal.App.3d 52, 58.)

            Plaintiffs allege “continued violations of the ICRAA” with respect to “the legality and effect of the Defendants’ Application” for housing.  (Comp., ¶ 55.)  They further allege, “Plaintiffs demand that an injunction follow the title to the land so that any future owners, managers or other persons in authority are aware of the judgment in this case and are bound by it.”  (¶ 56.)  They further seek “to prevent the Defendants’ continued violations of the ICRAA during the re-certification of Plaintiffs’ tenancy.”  (¶ 58.)  As with the first cause of action for violation of ICRAA, these allegations all concern the landlord’s violations of statutory requirements imposed on the person requesting an investigative report.  Not on the agency conducting or supplying the investigative report.  Plaintiffs therefore do not allege an actual controversy with TransUnion. 

Motion to Strike

The court will sustain the demurrer to all causes of action against TransUnion.  TransUnion’s motion to strike portions of the complaint is therefore moot.

Disposition

            Defendant TransUnion Rental Screening Solutions, Inc.’s demurrer to plaintiffs’ complaint is sustained with 30 days’ leave to amend.  Defendant’s motion to strike portions of the complaint is moot.