Judge: Gail Killefer, Case: 23STCV03676, Date: 2024-05-13 Tentative Ruling

Case Number: 23STCV03676    Hearing Date: May 13, 2024    Dept: 37

HEARING DATE:                 Monday, May 13, 2024

CASE NUMBER:                   23STCV03676

CASE NAME:                        Shoneke Williams, et al. v. Equity Residential Management, LLC

MOVING PARTY:                 Defendant Equity Residential Management, LLC

OPPOSING PARTY:             Plaintiffs Shonek Williams, et al.

TRIAL DATE:                        Not Set.

PROOF OF SERVICE:           OK

PROCEEDING:                      Demurrer with Motion to Strike Complaint

OPPOSITION:                        3 April 2023

REPLY:                                  27 March 2023

TENTATIVE:                         Defendant Equity’s demurrer to the second cause of action is

sustained with 30 days leave to amend and overruled as to the third cause of action. The motion to strike is denied as moot as to Paragraphs 1, 5, 41, 53, and 55 from the Complaint and Paragraphs 8 through 10 from the Prayer for Relief and granted with leave to amend as to the request for punitive damages. The Case Manage-ment Conference is taken off calendar and the Court sets an OSC Re: Amended Complaint for June 27, 2024, at 8:30 a.m.  Defendant to give notice.

Background

On February 21, 2023, Shoneke Williams, Alina Berry, Dillon Brant, India Castillo, Guillermo Diaz, Joanne Fowler, Alaiyjah Gates, Kimberly Herring, Ahmad-Jamal Herring, Michael Jones, Mariam Malik, Nelli Mirakyan and Joselyn Sanders (collectively “Plaintiffs”) filed a Complaint against Defendant Equity Residential Management LLC (“Defendant” or “Equity”).

Plaintiffs Alina Berry, Alaiyjah Gates, and Nelli Mirakyan have been dismissed.

The operative Complaint alleges three causes of action: (1) Violations of the Investigative Consumer Reporting Agencies Act; (2) Invasion of Privacy; and (3) Declaratory Relief.

Defendants now demurrer to the second and third causes of action with a motion to strike the Complaint. Plaintiffs oppose the demurrer. The matter is now before the court.

REQUEST FOR JUDICIAL NOTICE

The court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.) 

On reply, Defendant Equity seeks judicial notice of the following:

1)     Order on Demurrer of Equity Residential Management, LLC to Plaintiffs’ Complaint; and Motion to Strike, filed January 4, 2023, in the Superior Court of California, County of Los Angeles in Cary Singleton et al v. Equity Residential Management, L.L.C., Case No. 22VECV01307, attached as Exhibit A.

2)     Notice of Ruling re: Defendant Equity Residential Management, L.L.C.’s Demurrer and Motion to Strike, filed January 18, 2023, 2023 in the Superior Court of California, County of Los Angeles in Wayan Palmieri, et al v. Equity Residential Management, L.L.C., Case No. 22BBCV00656, attached as Exhibit B.

3)     Order re: Demurrer and Motion to Strike Against Complaint, filed January 24, 2023, in the Superior Court of California, County of Los Angeles in Soraya Viray, et al v. Equity Residential Management, L.L.C., Case No. 22VECV01496, attached as Exhibit C.

4)     Ruling on Demurrer of Equity Residential Management, L.L.C. to Plaintiffs’ Complaint; and Motion to Strike, filed September 28, 2022, in the Superior Court of California, County of Los Angeles in Kywane Thomas et al. v. Equity Residential Management, L.L.C., Case No. 22STCV23730, attached as Exhibit D.

The court denies Defendant Equity’s request for judicial notice. First, it is improper to submit new evidence on reply. (Scott v. CIBA Vision Corp. (1995) 28 Cal.App.4th 307, 322.) Second, Defendant seeks judicial notice of trial court rulings in other cases which are unpublished rulings with no precedential value in this court, and the opinions are submitted not as evidence but are being cited as precedent. Such citation is beyond the scope of judicial notice and is legally improper. (Budrow v. Dave & Buster’s of California, Inc. (2009) 171 Cal.App.4th 875, 884-885.)

Plaintiffs request judicial notice of the following:

1)     The November 9, 2022, Order on the Demurrer and Motion to Strike by Defendant Equity Residential Management, LLC, in the case of Dwight Evans, et al. v. Equity Residential Management, LLC, in the Superior Court of California, County of Los Angeles case number 22VECV01174 (Exhibit 1). Plaintiffs seek judicial notice under Evid. Code § 452(d).

Plaintiff’s request for judicial notice is denied for the same reason stated above, that the prior trial court ruling is being cited as precedent rather than as evidence.

discussion

I.         Legal Standard

A.        Demurrer 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿ 

B.        Motion to Strike 

¿Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP, § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP, § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿ 

C.        Leave to Amend 

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿ 

II.        Demurrer[1]

A.        Summary of Allegations in Complaint

Defendant Equity manages and operates a series of residential buildings in California. (Compl. ¶ 19.) Plaintiffs were prospective tenants of Defendants. (Compl. ¶¶ 6-18.) Plaintiffs applied for housing at Defendant’s residential complexes and completed a mandatory “Application” which included a release of information allowing Defendants to obtain private and personal information from third parties about Plaintiffs. (Compl. ¶¶ 25, 30.) Defendant obtained investigative consumer reports about the Plaintiffs without complying with the mandatory requirements, disclosure, and authorization required by the Investigative Consumer Reporting Agencies Act (ICRAA). (Compl ¶¶ 6, 34-40.)

Defendant Equity now moves to strike the second cause of action for Invasion of Privacy and the Third Cause of Action for Declaratory Judgment on the basis that the Complaint fails to state sufficient facts to support the causes of action. (CCP § 430.10(e).)

B.        2nd Cause of Action – Invasion of Privacy

“[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.)

Defendant demurs to the second cause of action on the basis that the Complaint fails to state facts to show that Plaintiffs had a reasonable expectation of privacy under the circumstances because Plaintiffs signed a release. (Compl. ¶¶ 27, 29.)

The Complaint alleges that the Application contained “a release of information permitting the Defendants to get private and personal information from third parties about the Plaintiffs” and that Plaintiffs completed the Application, including the release. (Compl. ¶¶ 25, 29.) “The application documents stated that Equity Residential Management, LLC may screen for criminal background and previous evictions.” (Compl. ¶ 27.) “Defendants required a purported authorization to perform credit and background checks in the process of screening Plaintiffs for the Hikari Apartments, the Mozaic at Union Station Apartment, the Eleve Lofts and Skydeck Apartments, and the Aero Apartments, which, although defective, evidences Defendants’ awareness of and willful failure to follow the governing laws” of ICRAA. (Compl. ¶ 42.)

As the Complaint acknowledges that Defendant obtained a release to perform a credit and background check on Plaintiffs, the Complaint fails to state facts to show that despite the Defendant obtaining Plaintiffs consent for a report, the Plaintiffs had a reasonable expectation of privacy under the circumstances.

Plaintiffs’ opposition focuses on the fact that Plaintiffs have a legally protected privacy interest in investigative consumer reports and the allegation that the Defendant failed to comply with ICRAA in obtaining the report. But the Plaintiffs fail to cite case law to support the allegation that Defendant Equity’s failure to comply with ICRAA revoked or voided Plaintiffs’ consent to a background check and credit report such that the Plaintiffs then obtained a reasonable expectation of privacy.

Accordingly, the demurrer to the second cause of action is sustained with leave to amend.

C.        3rd Cause of Action – Declaratory Relief

To state a declaratory relief claim, the plaintiff must allege a proper subject of declaratory relief and an actual controversy involving justiciable questions relating to the party’s rights or obligations.  (See CCP § 1060; Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) 

‘A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the parties under a written instrument or with respect to property and requests that the rights and duties of the parties be adjudged by the court .... If these requirements are met and no basis for declining declaratory relief appears, the court should declare the rights of the parties whether or not the facts alleged establish that the plaintiff is entitled to favorable declaration.’ [Citation.]
 

(Cardellini v. Casey (1986) 181 Cal.App.3d 389, 394) 

The third cause of action seeks declaratory judgment “regarding the legality and effect of the Defendants’ Application” and because “Defendants demands all leases must be renewed or re-certified, and because the same forms are always used, which authorizes the Defendants to obtain investigative consumer reports about the Plaintiffs, a judicial determination is necessary to prevent the Defendants’ continued violations of the ICRAA.” (Complaint, ¶ 59.)

Defendant Equity asserts that the third cause of action fails because Plaintiffs do not allege that they are required to submit a new Application to renew their leases or that Equity requires them to do so. Defendant Equity also asserts that future violations of ICRAA are fictional and hypothetical and there is no actual present controversy.

Whether Plaintiffs will have to complete a new Application when they renew their leases and whether said Application will comply with ICRAA is a disputed issue of fact not subject to demurrer. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114.) Because the Plaintiffs seek permanent injunctive relief against Equity to stop ongoing and future violations of ICRAA, the demurrer to the third cause of action is overruled.

III.      Motion to Strike

Defendant Equity seeks to strike the following from Plaintiffs’ Complaint: Paragraphs 1, 5, 41, 53, and 55, and Paragraphs 4, 8, 9, and 10 of the Prayer for Relief.

As the demurrer to the third cause of action is overruled, the motion to strike Paragraphs 1, 5, 41, 53, and 55 from the Complaint and Paragraphs 8 through 10 from the Prayer for Relief is denied as moot.

When the defendant is a¿corporation, “the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the¿corporation.” (Wilson v. Southern California Edison Company (2015) 234 Cal.App.4th 123, 164; see Civ. Code, § 3294(b).) Here, the Complaint is devoid of facts as to which officer, director, or managing agent of Defendant acted with oppression, fraud, or malice. Accordingly, the request to strike punitive damages from Paragraphs 5, 41, and 53 of the Complaint and Paragraph 4 in the Prayer for Relief is granted with leave to amend.

Conclusion

Defendant Equity’s demurrer to the second cause of action is sustained with 30 days leave to amend and overruled as to the third cause of action. The motion to strike is denied as moot as to Paragraphs 1, 5, 41, 53, and 55 from the Complaint and Paragraphs 8 through 10 from the Prayer for Relief and granted with leave to amend as to the request for punitive damages. The Case Management Conference is taken off calendar and the Court sets an OSC Re: Amended Complaint for June 27, 2024, at 8:30 a.m.  Defendant to give notice.