Judge: Barbara M. Scheper, Case: 23STCV14371, Date: 2023-09-07 Tentative Ruling

Case Number: 23STCV14371    Hearing Date: February 9, 2024    Dept: 30

Dept. 30

Calendar No.

Ross, et. al. vs. Equity Residential Management, LLC, et. al., Case No. 23STCV14371

Tentative Ruling re:  Defendant’s Demurrer to First Amended Complaint

Defendant Equity Residential Management, LLC (“Defendant”), demurs to the second and third causes of action in the FAC.   The demurrer is sustained without leave to amend.  Defendant is ordered to answer within ten (10) days of today’s date.

In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled that a “demurrer lies only for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.) 

When ruling on a demurrer, the Court may only consider the complaint’s allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at p. 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations plead or the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.) 

Plaintiffs are various individuals who applied for housing within the past two years at

various apartment buildings operated by Defendant Equity. (FAC, ¶ 30.) In processing Plaintiffs’ applications for tenancy, Defendant Equity allegedly requested and obtained investigative consumer reports about Plaintiffs. (FAC, ¶ 31.) Plaintiffs allege that Defendant Equity “required Plaintiffs to complete an ‘Application’ and to consent to release of information. The application documents stated that Equity Residential Management, LLC may screen for criminal background and previous evictions.” (FAC, ¶ 32.) Defendant Equity also requested that Plaintiffs pay an application fee pursuant to their applications, and Defendant Equity used a portion of each application fee to pay for investigative consumer reports about the Plaintiffs from Defendant Transunion Rental Screening. (FAC, ¶¶ 35-36.)

Plaintiffs allege that Defendant Equity “concealed from Plaintiffs the nature and type of the investigative consumer reports they would procure about the Plaintiffs, the date the reports would be procured, the entity or entities which would provide the reports, and Plaintiffs’ rights regarding the investigative consumer reports” and “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.” (FAC, ¶¶ 39-40.) Plaintiffs allege that Defendant Equity, in procuring the reports, failed to comply with disclosure and authorization requirements under the Investigative Consumer Reports Agency Act (ICRAA), Civ. Code §§ 1786, et seq.

Second Cause of Action—Invasion of Privacy

The FAC alleges that “[t]he conduct of Defendants in requesting, preparing, furnishing, and receiving reports on Plaintiffs’ character, general reputation, personal characteristics, or mode of living, in contrivance of the protections enshrined in the ICRAA, constituted a serious invasion of Plaintiffs’ privacy.” (FAC, ¶ 75.) According to the FAC, “[t]he Defendants have violated the ICRAA and invaded the Plaintiffs’ rights of privacy by obtaining investigative consumer reports about the Plaintiffs without complying with mandatory requirements under the ICRAA for getting investigative reports about the Plaintiffs.” (FAC, ¶ 77.)

To state a cause of action for invasion of privacy, a plaintiff must allege the following: “(1) a legally protected privacy interest; (2) a reasonable expectation 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.) “[E]xcept in cases involving physical intrusion, the tort must be accompanied by publicity in the sense of communication to the public in general or to a large number of persons as distinguished from one individual or a few.” (Kinsey v. Macur (1980) 107 Cal.App.3d 265, 270.) Also, “the facts disclosed must be private facts, and not public ones.” (Sipple v. Chronicle Publishing Co. (1984) 154 Cal.App.3d 1040, 1045, emphasis in original.) The reasonableness of an expectation of privacy depends on the circumstances. (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 36.) “[C]ustoms, practices, and physical settings surrounding particular activities may create or inhibit reasonable expectations of privacy.” (Ibid.)

“A reasonable expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.” (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 449.) “[T]he presence or absence of opportunities to consent voluntarily to activities impacting privacy interests obviously affects the expectations of the participant.” (Ibid.) “[I]n order to establish a reasonable expectation of privacy, the plaintiff must have conducted himself or herself in a manner consistent with an actual expectation of privacy, i.e., he or she must not have manifested by his or her conduct a voluntary consent to the invasive actions of [the] defendant.” (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 1000, emphasis added.) “If voluntary consent is present, a defendant’s conduct will rarely be deemed highly offensive to a reasonable person so as to justify tort liability.” (Ibid.) The question of whether there has been an invasion of privacy may be determined on demurrer. (Folgelstrom v. Lamps Plus, Inc. (2011) 195 Cal.App.4th 986, 990.)

Here, the Court finds that Plaintiffs have not stated a valid cause of action for invasion of privacy. The FAC alleges that investigative consumer reports “are commonly sought by landlords.” (FAC, ¶ 3.) Thus, it is customary for a landlord to obtain an investigative consumer report. Moreover, the FAC is devoid of any facts showing that Plaintiffs’ investigative consumer reports communicated private facts to the public in general or to a large number of persons as required by Kinsey v. Macur, supra, 107 Cal.App.3d 265, 270.

The Court also finds that Plaintiffs did not conduct themselves in a manner consistent with an actual expectation of privacy. The FAC concedes that Plaintiffs consented to Defendant Equity obtaining the investigative consumer reports at issue and that Plaintiffs consented to a release of their information. (FAC, ¶¶ 31-33.)

Third Cause of Action—Declaratory Relief

            A complaint for declaratory relief must demonstrate: (1) a proper subject of declaratory relief and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party. (Brownfield v. Daniel Freeman Marina Hosp. (1989) 208 Cal.App.3d 405, 410.) The fundamental basis of declaratory relief is a present and actual controversy between the parties over a proper subject. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80; see Code Civ. Proc., §1060.) “The actual controversy requirement concerns the existence of a present controversy relating to the legal rights and duties of the respective parties pursuant to contract.” (Brownfield v. Daniel Freeman Marina Hospital, supra, 208 Cal.App.3d 405, 410, emphasis in original.) “Where the allegations of the complaint reveal the controversy to be conjectural, anticipated to occur in the future, or an attempt to obtain an advisory opinion from the court, the fundamental basis for declaratory relief is lacking.” (Ibid.) “[D]eclaratory relief operates to declare future rights, not to address past wrongs.” (Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 13.)

            Plaintiffs allege that “[a]n actual controversy has arisen and now exists between Plaintiffs and Equity Residential regarding whether Equity Residential’s adopted practices of requesting and receiving investigative consumer reports about its tenants, as outlined above, violate the ICRAA. Equity Residential’s continuing insistence that it has not violated the ICRAA confirms the controversy will continue until a judicial authority declares those adopted practices unlawful.” (FAC, ¶ 80.) Plaintiffs further allege that “[a] judicial determination that runs with the land is necessary and appropriate at this time to prevent the Defendants’ continued violations of the ICRAA during the re-certification of Plaintiffs’ tenancy. Further, a judicial declaration is necessary in order that the parties ascertain their rights and obligations to each other and to avoid the hardship caused on the parties by a protracted dispute and further delay.” (FAC, ¶ 82.)

            The Court finds that Plaintiffs’ claim for declaratory relief is insufficient. Plaintiffs are not current tenants but are instead prospective tenants. (FAC, ¶¶ 6-22.) Also, Plaintiffs’ allegations that they are entitled to declaratory relief to prevent continued violations of the ICRAA during re-certification also does state a cause of action for declaratory relief. Such recertification is only prospective as they concede that they were only prospective tenants of Defendant Equity. Thus, there is no current controversy as to the investigative consumer reports. Declaratory relief cannot be used as a mechanism to address past wrongs.