Judge: Gail Killefer, Case: 22STCV17991, Date: 2023-02-27 Tentative Ruling
Case Number: 22STCV17991 Hearing Date: February 27, 2023 Dept: 37
HEARING DATE: February 27, 2023
CASE NUMBER: 22STCV17991
CASE NAME: Lashawn Johnson, et al. v. Barker Management, Inc.
TRIAL
DATE: Not set.
PROOF OF SERVICE: OK
MOTION: Motion for Summary Adjudication
MOVING PARTIES: Plaintiffs, Lashawn Johnson,
Essence Martin, Marcus Davis, and Shavon Garcia
OPPOSING PARTY: Defendant, Barker Management, Inc.
OPPOSITION: February 10, 2023
REPLY: February 17,
2023
TENTATIVE: Plaintiffs’
motion for summary adjudication is denied. Defendant is to give notice.
Background
This action arises out of applications submitted in 2021 by Lashawn Johnson, Essence Martin,
Marcus Davis, and Shavon Garci (“Plaintiffs”) to rent residences that were
owned by Defendant, Barker Management, Inc. (“Defendant”). According to the
Complaint, Defendant obtained confidential investigative consumer reports about
Plaintiffs from an investigative company, with highly personal information, and
Plaintiffs were never given copies of any of the reports even though they were
legally entitled to receive these highly personal reports.
Plaintiffs’ operative Complaint alleges three causes of
action as follows: (1) Violation of the Investigative Consumer Reporting
Agencies Act – Civ. Code §§ 1786, et seq., (2) Invasion of Privacy, and (3)
Declaratory Relief.
Plaintiffs now move for summary adjudication as to the
Complaint’s first cause of action for violations of the Investigative Consumer
Reporting Agencies Act (ICRAA), Civil Code §§ 1786 – 1786.60. Defendant opposes
the motion.
Plaintiffs’ notice of motion does not comply with CCP § 437c(f)(1),
which provides: “A party may move for summary adjudication as to one or more
causes of action within an action, one or more affirmative defenses, one or
more claims for damages, or one or more issues of duty.” Plaintiffs’ noticed
issues either address multiple causes of action within one issue, or one cause
of action is addressed across multiple issues. Thus, the court will address the
motion pertaining to the first cause of action of the Complaint.
Request for Judicial Notice
Defendant requests that the court take judicial notice of
the following in support of its opposition:
1.
Minute Order regarding case Warmuth v. WSH,
Orange County Superior Court Case No. 30- 2021-01219849-CUBT-CJC. (Exhibit 1)
Plaintiffs request judicial notice of the following in
support of their reply:
2.
October 17, 2021, Order by Judge John C.
Gastelum Granting Plaintiff’s Motion for Summary Adjudication in Griffith v.
Related Management Company, L.P. in the Superior Court of California,
County of Orange case number 30- 2019-01091978 (Exhibit 1).
3.
November 5, 2021, Notice of Order by Judge
Robert S. Draper Granting Plaintiffs’ Motion for Summary Adjudication in Sheila
Gregory, et al. v. Solari Enterprises, Inc. in the Superior Court of
California, County of Los Angeles case number 20STCV27865 (Exhibit 2).
4.
July 22, 2022, Order by Supervising Judge Layne
H. Melzer Granting Plaintiffs’ Motion for Summary Adjudication in Jessica
Adams, et al. v. Related Management Company, L.P. in the Superior Court of
California, County of Orange case number 30-2019-01106271 (Exhibit 3). And
5.
October 5, 2022, Order by Judge Robert S. Draper
Granting Plaintiff’s Motion for Summary Adjudication in Dean v. Solari Enterprises,
Inc. in the Superior Court of California, County of Los Angeles case number
20STCV36998 (Exhibit 4).
Plaintiffs object to Defendant’s request, contending the
court cannot take judicial notice of the truth of the matters of Defendant’s submitted
document. Plaintiffs need not explain to the court the parameters of judicial
notice, as Plaintiffs’ objection is not an evidentiary objection, or an
objection at all, and is therefore moot.
Plaintiffs’ and Defendant’s
requests are granted. The existence and legal significance of these documents
is a proper matter for judicial notice. (Evid. Code § 452(h).) However, the court may not take judicial notice of the truth of
the contents of the documents. (Herrera v. Deutsche Bank National
Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Documents are only
judicially noticeable to show their existence and what orders were made.
The truth of the facts and findings within the documents are not judicially
noticeable. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz
& McCort (2001) 91 Cal.App.4th 875, 885.)
Evidentiary
Objections
Plaintiffs’
Objections to Defendant’s Evidence
Overruled: Objections 1-2, 4-6.
Sustained-in-part:
Objection 3, as to everything after “None of these reports...”
Factual Background
Each Plaintiff submitted an “Application for Rental Housing”
to Defendant “for an apartment home at the Elden Elms Apartments in Los
Angeles, California.” (Separate Statement of Undisputed Material Facts (“DSS”),
¶ 1.) “As part of the Application for Rental Housing, [Defendant] required that
[Plaintiffs] agree to a release of information that allowed it to get
‘information’ on my ‘creditworthiness, credit standing, character, general
reputation, personal characteristics, or mode of living, and criminal record
check.’” (DSS ¶2.) Defendant also required Plaintiffs to “sign an ‘Applicant
Authorization and Consent for Release of Information’ form, which ‘authorized
the preparation of an investigative report’ about her/him.” (DSS ¶3.)
The parties dispute whether Defendant provided Plaintiffs
with an opportunity to request a copy of any report prepared about them, the
contact information for the agency which prepared these reports, or a summary
of these reports. (DSS ¶¶4-6.) The parties further dispute whether any report
prepared about the Plaintiffs was investigative in nature and whether this
created a duty on the part of Defendant to Plaintiffs. (DSS ¶7.)
Discussion
I.
Legal Standard
“The purpose of the law of summary judgment is to provide
courts with a mechanism to cut through the parties’ pleadings in order to
determine whether, despite their allegations, trial is in fact necessary to
resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843.) CCP § 437c(a) provides:
A party may
move for summary judgment in any action or proceeding if it is contended that
the action has no merit or that there is no defense to the action or
proceeding. The motion may be made at any time after 60 days have elapsed
since the general appearance in the action or proceeding of each party against
whom the motion is directed or at any earlier time after the general appearance
that the court, with or without notice and upon good cause shown, may
direct…. The motion shall be heard no later than 30 days before the date
of trial, unless the court for good cause orders otherwise. The filing of
the motion shall not extend the time within which a party must otherwise file a
responsive pleading.
A motion for summary judgment may be granted “if all the
papers submitted show that there is no triable issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.”
(CCP § 437c(c).)
“The motion shall be supported by affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of which
judicial notice shall or may be taken. The supporting papers shall
include a separate statement setting forth plainly and concisely all material
facts that the moving party contends are undisputed. Each of the material
facts stated shall be followed by a reference to the supporting evidence.
The failure to comply with this requirement of a separate statement may in the
court’s discretion constitute a sufficient ground for denial of the
motion.” (CCP § 437c(b)(1); see also Cal. Rules of
Court, rule 3.1350(c)(2) & (d).)
In analyzing motions for summary judgment, courts must
apply a three-step analysis: “(1) identify the issues framed by the pleadings;
(2) determine whether the moving party has negated the opponent's claims; and
(3) determine whether the opposition has demonstrated the existence of a
triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289,
294 (Hinsley).) CCP § 437c(p)(1) provides:
A plaintiff
or cross-complainant has met his or her burden of showing that there is no
defense to a cause of action if that party has proved each element of the cause
of action entitling the party to judgment on the cause of action. Once the
plaintiff or cross-complainant has met that burden, the burden shifts to the
defendant or cross-defendant to show that a triable issue of one or more material
facts exists as to the cause of action or a defense thereto. The defendant or
cross-defendant shall not rely upon the allegations or denials of its pleadings
to show that a triable issue of material fact exists but, instead, shall set
forth the specific facts showing that a triable issue of material fact exists
as to the cause of action or a defense thereto.
The court must “view the evidence in the light most
favorable to the opposing party and accept all inferences reasonably drawn
therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v.
Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally
construe the evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.”].) A
motion for summary judgment must be denied where the moving party’s evidence
does not prove all material facts, even in the absence of any opposition (Leyva
v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475).
II.
Analysis
The
Court first turns to Plaintiffs’ pleading, which “determine[s] the scope of
relevant issues on a summary [adjudication] motion.” (Nieto v. Blue Shield
of California Life & Health Ins. Co.¿(2010) 181 Cal.App.4th 60, 74.)
As to
Defendant, Plaintiffs allege noncompliance with the following provisions of ICRAA,
§ 1786.16:
Subdivision
(b)(1)
This
subdivision requires any person requesting an investigative consumer report to
“[p]rovide the consumer a means by which the consumer may indicate on a written
form, by means of a box to check, that the consumer wishes to receive a copy of
any report that is prepared. If the consumer wishes to receive a copy of the
report, the recipient of the report shall send a copy of the report to the
consumer within three business days of the date that the report is provided to
the recipient, who may contract with any other entity to send a copy to the
consumer. The notice to request the report may be contained on either the
disclosure form, as required by subdivision (a), or a separate consent form.
The copy of the report shall contain the name, address, and telephone number of
the person who issued the report and how to contact them.”
Plaintiffs
allege that Defendant failed to comply with these provisions in that it “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.” (Complaint., ¶ 39.)
Subdivision
(a)(3)
This
subdivision provides that any person “shall not procure or cause to be prepared
an investigative consumer report unless” “the person procuring or causing the
request to be made shall, not later than three days after the date on which the
report was first requested, notify the consumer in writing that an
investigative consumer report will be made regarding the consumer's character,
general reputation, personal characteristics, and mode of living. The
notification shall also include the name and address of the investigative
consumer reporting agency that will prepare the report and a summary of the
provisions of Section 1786.22.”
Plaintiffs
allege that Defendant failed to comply with these provisions in that Defendant
“did not notify Plaintiffs that an investigative consumer report would be made
regarding his and her character, general reputation, personal characteristics,
and/or mode of living, did not provide the name or address of the investigative
consumer reporting agencies that would prepare the reports, and did not provide
a summary or copy of the provisions of Civil Code § 1786.22.” (Complaint, ¶
41.)
Subdivision
(a)(4)3
This
subdivision provides that any person “shall not procure or cause to be prepared
an investigative consumer report unless” “[t]he person procuring or causing the
request to be made shall certify to the investigative consumer reporting agency
that the person has made the applicable disclosures to the consumer required by
this subdivision and that the person will comply with subdivision (b).”
Plaintiffs
allege that Defendant failed to act in accordance with Subdivision (a)(4) and
ask this court for permanent injunctive relief ordering Defendant to make the
necessary certifications “prior to procuring any investigative consumer report...”
(Complaint, ¶ 47.)
Subdivision
(a)(5)
This
subdivision provides that any person “shall not procure or cause to be prepared
an investigative consumer report unless” “[t]he person procuring the report or
causing it to be prepared agrees to provide a copy of the report to the subject
of the investigation, as provided in subdivision (b).”
Plaintiffs
allege that “Defendants, however, failed to do so. They never agreed to provide
a copy of any of the reports prepared about the Plaintiff.” (Complaint, ¶ 42.)
Plaintiffs’
motion for summary adjudication fails to address all of the alleged violations,
and thus, fails to completely dispose of the 1st cause of action. (CCP §
437c(f)(1) (“A motion for summary adjudication shall be granted only if it
completely disposes of a cause of action.”)
In
their motion, Plaintiffs summarily contend there is “no question the reports on
Plaintiffs are investigative consumer reports within the meaning of the ICRAA.”
(Motion, 9.) “There is no triable issue that Barker knowingly disregarded these
mandatory provisions by failing to include the statutorily mandated box for
Plaintiffs to check.” (Motion, 10.) In support, Plaintiffs attach the
“Authorization and Consent for Release of Information,” each group of Plaintiffs
received and signed. (Plaintiffs’ Evidence, Exh. 2, 5, 8.)
The
“Authorization and Consent for Release of Information” (“Authorization”)
states, in relevant part:
“BY SIGNATURE
BELOW, I AUTHORIZE THE PREPARATION OF AN INVESTIGATIVE REPORT. FOR SIGNAGURE [sic],
I AUTHORIZE AND UNDERSTAND THAT INVESTIGATIVE BACKGROUD [sic] INQUIRIES ARE TO
BE MADE ON MYSELF INCLUDING CONSUMER, CRIMINAL, DRIVING AND OTHER REPORTS.
FURTHER, I UNDERSTAND THAT YOU WILL BE REQUESTING INFORMATION FROM VARIOUS
FEDERAL, STATE AND OTHER AGENCIES WHICH MAINTAIN RECORDS CONCERNING MY PAST
ACTIVITIES RELATING TO MY DRIVING, CREDIT CRIMINAL, CIVIL TENANCY AND OTHER
EXPERIENCE. I RELEASE ALL OF THE ABOVE INCLUDING NATIONAL CREDIT REPORTING AND
ITS AGENTS TO THE FULL EXTENT PERMITTED BY LAW FROM ANY CLAIMS, DAMAGES,
LOSSES, LIABILITIES, AND EXPENSES ARISING FROM THE RETRIEVING AND REPORTING OF
INFORMATION. ALL REPORT WILL BE KEPT CONFIDENTIAL.
ACCORDING TO THE FEDERAL FAIR
CREDIT REPORTING ACT, I AM ENTITLED TO KNOW IF I WAS DENIED BASED ON INFORMATION
OBTAINED AND TO RECEIVE, UPON WRITTEN REQUEST TO NATIONAL CREDIT REPORTING A
DISCLOSURE OF THE PUBLIC RECORD INFORMATION AND THE NATURE AND SCOPE OF THE
INVESTIGATIVE REPORT.
I, THE UNDERSIGNED APPLICANT, DO
HEREBY CERTIFY THAT THE INFORMATION PROVIDED BY ME IS THE TRUE AND COMPLETE TO
THE BEST OF MY KNOWLEDGE. ANY COPY OF THIS DOCUMENT IS AS VALID AS THE
ORIGINAL. FALSIFYING INFORMATION COULD RESULT IN DENTIAL OF TENANCY.” (Id.)
(emphasis added).
Plaintiffs contend Defendant
violated the provisions of the ICRAA “by failing to include the statutorily
mandated box for Plaintiffs to check;” by not providing “copies of any of the
reports bought about the Plaintiffs... and did not supply the name and address
of the investigative consumer reporting agency that prepared and sold the
reports.” (Motion, 10.)
Plaintiffs further contend no
triable issue exists “that Barker knowingly and deliberately refused to comply
with these provisions.” (Id.) Plaintiffs provide no supporting evidence
or authorities for such contention.
Plaintiffs further argue that “the
required check box” appears “[n]owhere on the document” which means “that all
tenants, not just Plaintiffs here, would be much less likely to know about
these confidential reports or ask to see them.” (Motion, 12.) The court here
notes that the language of the Authorization explains Plaintiffs’ right to
request a copy of information obtained about them.
Similarly, Plaintiffs further
contend no triable issues of fact exist as to whether Defendant provided the
contact information of the investigative consumer reporting agency; whether
Defendant provided a summary of the provisions of Section 1786.22; and, whether Defendant provided a copy of
the reports themselves. (Motion, 12-14.)
Lastly, Plaintiffs contend that “for the purposes of this
Motion only,” Plaintiffs ask the court to enter judgment “for statutory damages
in the amount of $10,000.” (Motion, 13-14; citing Civ. Code, §
1786.50(a).) In support, Plaintiffs contend “Barker committed many violations
of the ICRAA,” and that “[e]ach report carries with it a distinct set of
violations.”
Plaintiffs’ request for statutory
damages contradicts the language of their Complaint. In their Complaint,
Plaintiffs’ contend:
“43. [a]s a direct, legal and proximate result of Defendants’
conduct as alleged above, Plaintiffs suffered damages in an amount according to
proof at trial, including but not limited to emotional distress, invasion of
privacy, injury, denial of the reports to which they have a statutory right,
and harm to property interests.” (Complaint, ¶43.)
Statutory damages are only pled
“[i]n the alternative...” (Complaint, ¶ 44.) Further, while Plaintiffs request
summary adjudication regarding statutory damages “for the purposes of this
motion only,” the language of Plaintiffs’ moving papers suggests the first
cause of action will survive beyond this motion if it is granted, so that
Plaintiffs can request other damages which were pled in the alternative in
their Complaint. As such, Plaintiffs’ motion does not completely dispose of the
first cause of action.
In opposition, Defendant contends:
“Plaintiffs’ motion ... provides absolutely no evidence of any
actual damages suffered by any of the plaintiffs, because none exists. In an
attempt to sidestep this lack of evidence, plaintiffs argue that they seek only
‘statutory damages’ pursuant to Civil Code § 1786.50, but then assert further
argument regarding the amount of statutory damages that are applicable. Such an
argument, however, is improper at the summary adjudication stage and,
accordingly, the motion should be summarily denied.
Specifically, in this case, plaintiffs seek to summarily
adjudicate multiple alleged violations of Civil Code § 1786.16. However, at no
time do any of the plaintiffs set forth any evidence of any resulting damages
in this case. This failure precludes a grant of summary adjudication on each
and every one of these claims.” (Opp., 4, 6.)
Defendant further contends that
any granting of statutory damages under the ICRAA is not automatic, but rather
relies on a showing of “actual damages” under § 1786.50(a)(1). “In the present
case, given that plaintiffs all had their applications accepted and all became
residents at Barker Management properties, it is clear that plaintiffs cannot
show any evidence of actual damages: There are none.” (Opp., 7.)
Section 1786.50(a)(1) states in
relevant part:
“(a) An investigative consumer reporting agency or user of
information that fails to comply with any requirement under this
title with respect to an investigative consumer report is liable to the
consumer who is the subject of the report in an amount equal to the sum of all
the following:
(1) Any actual damages sustained by the consumer as a result
of the failure or, except in the case of class actions, ten thousand dollars
($10,000), whichever sum is greater.
(2) In the case of any successful action to enforce any
liability under this chapter, the costs of the action together with reasonable
attorney's fees as determined by the court.” (Id.)
Defendant further contends triable
issues exist as to whether the reports obtained by Defendant fall within the
scope of the ICRAA, and “even if this Court concludes that no issues of fact
exist which would preclude summary adjudication as to the application of ICRAA,
issues of fact still exist regarding whether Barker Management substantially
complied with the statute by notifying each applicant that an investigative
report would be run.” (Opp., 8-10.) Lastly, Defendant points to the language of
the Authorization, and its release of liability, to contend that the language
of the Authorization “that plaintiffs signed clearly and unambiguously
precludes a finding of any liability by Barker Management... stemming from the
reports authorized by plaintiffs.” (Opp., 11.)
The court finds Plaintiffs’ motion
does not completely dispose of the first cause of action as explained above.
Further, the court also notes Defendant points to several triable issues which
preclude summary adjudication, most notably a showing of actual damages
suffered by Plaintiffs, to determine the appropriate amount of general damages
pursuant to Section 1786.50(a)(1). Triable
issues of material fact also exists regarding the release provision of the
Authorization, whether Defendant substantially complied within the meaning of
the statute, and whether any reports procured fall within the scope of the
ICRAA. As such, the court finds several justifications exist for denying
summary adjudication as to the first cause of action.
Given the foregoing, and viewing
the evidence submitted in the light most favorable to Defendant, the court
finds that Plaintiffs have not established the elements necessary for an ICRAA
claim and have not disposed of the ICRAA claim entirely for the purposes of this
motion. For these reasons, Plaintiffs’ motion for summary adjudication is denied.
Conclusion
Plaintiffs’ motion for summary
adjudication is denied. Defendant is to give notice.