Judge: Carolyn M. Caietti, Case: 37-2021-00041299-CL-OE-CTL, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 28, 2023

09/29/2023  01:30:00 PM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Limited  Other employment Summary Judgment / Summary Adjudication (Civil) 37-2021-00041299-CL-OE-CTL PARSONAGE VS WAL-MART ASSOCIATES INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 07/14/2023

Defendants Walmart, Inc. and Wal-Mart Associates, Inc.'s Motion for Summary Judgment is GRANTED.

Background Defendants move for summary judgment on the Limited Complaint's one cause of action, which alleges Defendants violated California's Investigative Consumer Reporting Agencies Act (ICRAA) when they procured an investigative consumer report regarding Plaintiff during the job application process.

Defendants' motion is on grounds Plaintiff lacks standing to pursue this cause of action.

Preliminary Matters Defendants' unopposed request for judicial notice is granted and notice will be taken to the extent permitted.

Plaintiff's unopposed request for judicial notice is granted and notice will be taken to the extent permitted.

Defendants' reply objections are overruled.

The Court is aware Defendants submitted a request for judicial notice in reply, but the filing was rejected by the Civil Business Office. (ROA 109.) It was not considered by the Court.

Discussion In ruling on a summary judgment, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts.

(Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) The court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 858.) The Court must 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Calendar No.: Event ID:  TENTATIVE RULINGS

3007545  59 CASE NUMBER: CASE TITLE:  PARSONAGE VS WAL-MART ASSOCIATES INC [IMAGED]  37-2021-00041299-CL-OE-CTL The way to raise lack of standing is to plead it as an affirmative defense, and thereafter to bring a motion for summary adjudication or summary judgment. (Williams v. Superior Court (2017) 3 Cal.5th 531, 558–559.) 'Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.' (C.C.P., § 367.) C.C.P. section 367 'merely requires, in most instances, that the person who brings the claim in a California court must be the person who actually owns the claim.' (Limon v. Circle K Stores, Inc. (2022) 84 Cal.App.5th 671, 691-92.) Generally, to have standing to pursue a claim for damages in California courts, a plaintiff must be 'beneficially interested in the claims he is pursuing.' (Id., at p. 700.) To assess a plaintiff's standing to pursue claims in California courts, 'one must consider whether the plaintiff suffered an injury – i.e., an invasion of his or her legally protected interests and whether it is sufficient to afford them an interest in pursuing their action vigorously.' (Id., at p. 704 (quotations & brackets omitted).) The latter consideration is met where the injury is concrete and particularized; and actual or imminent, not conjectural or hypothetical. (Ibid.) The prerequisites for standing to assert statutorily-based causes of action are determined from the statutory language, as well as the underlying legislative intent and the purpose of the statute. (Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 916.) In Limon, supra, the plaintiff, a prospective employee, brought putative class action claims against Circle K Stores, Inc., alleging it violated the federal Fair Credit Reporting Act (FCRA) by failing to provide him with proper FCRA disclosures when it sought and received his authorization to obtain a consumer report about him in connection with his application for employment. Defendant/employer demurred, arguing in part the plaintiff lacked standing. The trial court sustained the demurrer without leave to amend.

The Fifth District affirmed, concluding the prospective employee failed to allege a sufficient injury to his legally protected interests under the FCRA to confer standing. The court reasoned Congress enacted FCRA to protect job applicants, ensure fair and accurate credit reporting and protect consumer privacy.

(Limon, at p. 704.) But the plaintiff/prospective employee, did not allege: (i) he did not receive a copy of the consumer report that Circle K obtained; (ii) the consumer report obtained by Circle K contained any defamatory content or other per se injurious content; (iii) the consumer report contained false or inaccurate information; (iv) any exposure to a material risk of future harm, imminent or substantial. (Id., at p. 705.) Thus, there was no injury to his protected interest in ensuring fair and accurate credit (or background) reporting and, similarly, there was no injury associated with an adverse employment decision based on false or inaccurate reporting. (Ibid.) Here, while Plaintiff alleges Defendants violated ICRAA, not FCRA, and brought this lawsuit under Civil Code section 1786.50, the California Legislature modeled ICRAA after FCRA, intending it to serve complementary goals. (Kemp v. Superior Court (2022) 86 Cal.App.5th 981, 991, review denied (Apr. 12, 2023).) Like in Limon, there are no facts creating a dispute regarding injury. It is undisputed Plaintiff commenced her orientation and was onboarded as a Garden Center Sales Associate for Defendants. (UMF 6.) It is not materially disputed that Plaintiff received a copy of the report after confirming one had been secured based on her authorization. (UMF 5.) At most, Plaintiff maintains the report falsely states Plaintiff was arrested and convicted of driving on a 'Commercial driver[]'s license suspended/knowledge.' Plaintiff held a conviction for violating Vehicle Code section 14601.1 for an offense date of September 19, 2014, and charged under the same code section for an offense date on December 9, 2015. (AMF16-22.) The falsity appears to be in the word 'Commercial' versus 'California.' Plaintiff argues this exposed her to a material risk of future harm, sufficient to constitute an injury and 'if Plaintiff had applied to work at a business with more exacting hiring standards...the lack of opportunity exposed Plaintiff to a risk of harm...' Even if the report contained falsities, the 'lost opportunities' Plaintiff feared did not materialize. She obtained employment. This is the type of prohibited 'conjectural' and 'hypothetical' injury that is insufficient to confer standing. Further, 'there was no injury associated with any adverse employment Calendar No.: Event ID:  TENTATIVE RULINGS

3007545  59 CASE NUMBER: CASE TITLE:  PARSONAGE VS WAL-MART ASSOCIATES INC [IMAGED]  37-2021-00041299-CL-OE-CTL decision based on false or inaccurate reporting.' (Limon, at p. 705.) The plaintiff in Limon admitted Circle K hired him and did not allege any adverse employment decision based on information contained in the consumer report. (Ibid.) Here too, there is no evidence of an adverse employment decision to create a disputed fact regarding injury.

Thus, it is undisputed Plaintiff lacks standing. Defendants are entitled to judgment as a matter of law.

Concluding Orders For these reasons, the motion for summary judgment is GRANTED.

Defendants are ordered to: (i) prepare and submit a proposed judgment in accordance with applicable laws and rules; and (ii) serve written notice of the Court's final order on all parties by October 3, 2023.

Plaintiff is reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion paperwork.

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