Judge: James L. Crandall, Case: 21-1219849, Date: 2022-12-22 Tentative Ruling

Motion for Summary Judgment and/or Adjudication

Format of Motion

Code of Civil Procedure section 437c(f)(1) states: “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, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Code of Civil Procedure section 437c(t) provides:

“Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.

(1)(A) Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following:

(i)A joint stipulation stating the issue or issues to be adjudicated.

(ii)A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.

(B)The joint stipulation shall be served on any party to the civil action who is not also a party to the motion.”

The Complaint’s first cause of action is brought by all Plaintiffs against Defendant. Plaintiffs’ Motion seeks summary adjudication on the first cause of action by all Plaintiffs (Notice of Motion, No. 1) but then also seeks summary adjudication as to each Plaintiff individually on the various alleged violations of the Investigative Consumer Reporting Agencies Act (ICRAA). Summary adjudication as to each plaintiff separately does not eliminate a cause of action. There is also no record in the court’s file that Plaintiffs obtained a stipulation from Defendant to move for summary adjudication in this manner pursuant to Code of Civil Procedure section 437c(t).

The court finds that the Motion does not comply with Code of Civil Procedure section 437c(f)(1) or section 437c(t). The court will treat the motion as one seeking summary adjudication on the first cause of action only.

Merits

Whether Reports are Investigative Consumer Reports

Civil Code section 1786.2(c) defines investigative consumer report as follows: “(c) The term “investigative consumer report” means a consumer report in which information on a consumer's character, general reputation, personal characteristics, or mode of living is obtained through any means. The term does not include a consumer report or other compilation of information that is limited to specific factual information relating to a consumer's credit record or manner of obtaining credit obtained directly from a creditor of the consumer or from a consumer reporting agency when that information was obtained directly from a potential or existing creditor of the consumer or from the consumer.”

Connor v. First Student, Inc. (2018) 5 Cal.5th 1026 (Connor) states: “By its terms, the 2010 notice conveys that First understood that the background check would include information about Connor's character, thus placing it within the scope of ICRAA. Additionally, the check box portion of the notice cites to ICRAA, Civil Code section 1786.22, and provides details about the consumer's statutory rights, again indicating that First had notice that it must comply with ICRAA.” (Id. at 1037.) Therefore, the court determined that the ICRAA applies to the report at issue because the report disclosed that it would contain information about the employee’s character and also cites to the ICRAA.

Plaintiffs argue that Defendant obtained investigative consumer reports on each of them in connection with their application to rent at Santa Ana Arts Collective Apartments. Specifically, “There is no dispute that background checks are covered by the ICRAA. [citation] False or inaccurate information in background reports is very serious in causing damages to tenants’ lives. False information in reports can typically be corrected only if the person being investigated can see the report. Here, Defendant WSH Management, Inc. made that impossible, and not from inadvertence. WSH planned it so tenants would never know about the reports or that they could see what was reported.”

Additionally, each Plaintiff also attests that he or she was never informed that an investigative consumer report would be obtained about them. (see, e.g., PSS No. 6; Declaration of Lisa Warmuth, ¶ 8.)

In opposition, Defendant contends that whether the reports obtained on Plaintiffs in connection with their rental applications are investigative consumer reports is a question of fact. (Opposition, 7.)

Based on the foregoing, the court agrees that whether the reports obtained on Plaintiffs are investigative consumer reports is a question of fact. Plaintiffs appear to be relying on Connor for the argument that the reports obtained on Plaintiffs are certainly investigative consumer reports. However, the reports at issue in Connor were deemed to be covered by the ICRAA because they contained a “background check” and cited to the ICRAA. Here, each Plaintiff’s application included the following:

“I further understand and agree that the owner/management agent will use this information to investigate my credit worthiness through credit bureau, criminal checks, and landlord verification…”

(Exhibits in Support of Motion, Exhibit 1, p. I-5.) Each of the reports, in turn, provide information about each Plaintiff in list format. The reports do not appear to be discussing Plaintiffs’ “character, general reputation, personal characteristics, or mode of living.”

Having found that a triable issue exists regarding whether the reports obtained on Plaintiffs are investigative consumer reports, Plaintiffs’ Motion is DENIED.

Damages

Plaintiffs’ Motion also argues that they are entitled to statutory damages based on Civil Code section 1786.50, which states:

“(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.”

In opposition, Defendant argues that argument about the amount of statutory damages is improper at this stage and thus Plaintiffs’ motion must be denied for failure to prove damages.

Civil Code section 1786.50 states on its face that if an entity is found liable for violation of the ICRAA, then it is liable to the consumer for actual damages or $10,000, whichever is greater. It does not follow from this that Plaintiffs are automatically entitled to $10,000 per violation, given that Plaintiffs have submitted no evidence of their actual damages and the statute calls for a prevailing consumer to be awarded the greater of their actual damages or $10,000.

Because Plaintiffs have not submitted evidence of their actual damages, the court finds that Plaintiffs do not meet their burden of proving each element of their first cause of action. This constitutes an additional reason to deny Plaintiffs’ Motion.

Plaintiffs Lisa Warmuth, Jill Gambaro, Jason Cook, Bianca Cook and Valerie Henderson’s (Plaintiffs) Motion for Summary Adjudication (Motion), filed 7-20-22 under ROA No. 77 is DENIED.

Defendant is to give notice.