Judge Jill Feeney, Case Number: 22STCV13656, Date: 2023-05-22 Tentative Ruling

Judge: Jill Feeney, Case: 22STCV13656, Date: 2023-05-22 Tentative Ruling

Case Number: 22STCV13656 Hearing Date: May 22, 2023 Dept: 78

Superior Court of California

County of Los Angeles

Department 78

EUSEBIO GONZALEZ, et al.,

Plaintiffs;

vs.

SOLARI ENTERPRISES, INC., et al.,

Defendants. Case No.:

22STCV13656

Hearing Date: May 22, 2023

[TENTATIVE] RULING RE:

PLAINTIFFS EUSEBIO GONZALEZ’S AND DARLENE PROANO’S MOTION FOR SUMMARY ADJUDICATION AS TO THEIR ICRAA CAUSE OF ACTION

Plaintiffs Eusebio Gonzalez’s and Darlene Proano’s Motion for Summary Adjudication is GRANTED.

Plaintiffs are each awarded $10,000 in statutory damages.

FACTUAL BACKGROUND

This is an action for violation of the Investigative Consumer Reporting Agencies Act (“ICRAA”). The Complaint alleges as follows.

Defendant Solari Enterprises, Inc. (“Solari”) owns and operates the Bluewater Apartments (the “Subject Property”) located at 6121 Fairmont Avenue, San Diego, California 92120. (Compl. ¶¶ 6-7.) Plaintiffs Eusebio Gonzalez and Darlene Proano (“Plaintiffs”) are tenants in the Subject Property. (Compl. ¶ 6.)

When Plaintiffs applied for their tenancy, Solari requested and procured investigative consumer reports regarding Plaintiffs without providing proper disclosures and obtaining proper authorizations contrary to the ICRAA. (Compl. ¶ 14.)

PROCEDURAL HISTORY

On November 17, 2020, Plaintiffs filed the Complaint in the Orange County Superior Court asserting three causes of action:

1. Violations of the ICRAA;

2. Unfair Competition; and

3. Declaratory Relief.

On April 25, 2022, the action was transferred to the instant Department 78 of the Los Angeles County Superior Court.

Also on April 25, 2022, Solari filed an Answer.

On July 15, 2022, Plaintiffs filed the instant Motion for Summary Adjudication.

On December 28, 2022, Solari filed an Opposition.

On January 3, 2023, Plaintiffs filed a Reply.

DISCUSSION

I. REQUEST FOR JUDICIAL NOTICE

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).)

Evidence Code Section 452 provides that judicial notice may be taken for facts and propositions that are “not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Cal. Evid. Code § 452(h).) Further, “a court may take judicial notice of [recorded documents and] the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 745-755.)

Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-14 (citations and internal quotations omitted).) In addition, judges “consider matters shown in exhibits attached to the complaint and incorporated by reference.” (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 665.) However, “[w]hen judicial notice is taken of a document . . . the truthfulness and proper interpretation of the document are disputable.” (Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4th 556, 569 (quoting StorMedia Inc. v. Sup. Ct. (1999) 20 Cal.4th 449, 457 n. 9).)

The party requesting judicial notice must (a) give each adverse party sufficient notice of the request to enable the adverse party to prepare to meet the request and (b) provide the court with sufficient information to enable it to take judicial notice of the matter. (Cal. Evid. Code § 453.)

Here, Solari requests judicial notice of the following:

1. California Bill Analysis, Senate Judiciary Committee, 2000-2001 Session, Assembly Bill 655, Ca. B. An., A.B. 655. (Ex. A.)

2. Notice of Entry of Order re Plaintiff’s Motion for Summary Adjudication in the case entitled Enija Dean v. Solari Enterprises, Inc., et al., Los Angeles County Superior Court, Case No. 20STCV36998. (Ex. B.)

3. Notice of Entry of Order re Plaintiff’s Motion for Summary Adjudication in the case entitled Sheila Gregory, et al. v. Solari Enterprises, Inc., et al., Los Angeles County Superior Court, Case No. 20STCV27865. (Ex. C.)

4. Notice of Entry of Order re Plaintiff’s Motion for Summary Adjudication in the case entitled Lisamarie Griffith v. Related Management Company, L.P., et al., Orange County Superior Court, Case No. 30-2019-01091978-CU-BT-CJC. (Ex. D.)

5. Request for Dismissal filed by Plaintiff in this action as to defendant RentGrow, Inc. (Ex. E.)

Solari’s Requests for Judicial Notice numbers 1-5 are GRANTED.

II. MOTION FOR SUMMARY ADJUDICATION

Plaintiffs move for Summary Adjudication of their First Cause of Action for Violation of the ICRAA.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial.¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843). In analyzing such motions, 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). Thus, summary judgment or summary adjudication is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law.¿(CCP § 437c(c);¿Villa v.¿McFarren¿(1995) 35 Cal.App.4th 733, 741).¿

As to each claim as framed by the complaint, the party¿moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to negate an essential element.¿(Scalf¿v. D. B. Log Homes, Inc.¿(2005) 128 Cal.App.4th 1510, 1520). Courts “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). A motion for summary judgment or summary adjudication must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition or where the opposition is weak.¿(See¿Leyva v. Superior Court (1985) 164 Cal.App.3d 462, 475;¿Salesguevara¿v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.¿¿¿

Once the¿moving¿party has met the burden, the burden shifts to the opposing party¿to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto.¿(CCP § 437c(o)(2)).¿When¿a¿party¿cannot¿establish an essential element or defense, a court must grant a motion for summary adjudication.¿(CCP § 437c(o)(1)-(2)).¿

A. First Cause of Action – Violation of the Investigative Consumer Reporting Agency Act

Plaintiffs move for Summary Adjudication of their First Cause of Action for Violation of the ICRAA.

The purpose of the ICRAA is “to ensure that consumer reporting agencies ‘exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer's right to privacy.’” (Connor v. First Student, Inc (2018) 5 Cal.5th 1026, 1032.) “[T]he statute defines an ‘investigative consumer report’ as one ‘in which information on a consumer's character, general reputation, personal characteristics, or mode of living is obtained through any means.’” (Id., citing Civ. Code, § 1786.2(c).)

Pursuant to the ICRAA, any person who requests an investigative consumer report on a prospective tenant must comply with the following requirements: (1) “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” within “three days after the date on which the report was first requested” (Civ. Code, § 1786.16(a)(3)); (2) “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” (Id.); (3) “certify to the investigative consumer reporting agency” that “the applicable disclosures” were made to the consumer (Civ. Code § 1786.16(a)(4)); (4) “provide 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” (Civ. Code, § 1786.16(b)(1)); and (5) “send a copy of the report to the consumer within three business days of the date that the report is provided to the recipient.” (Id.)

Here, Plaintiffs argue that Solari has already conceded violation of the ICRAA. Plaintiffs note that, in response to Plaintiffs’ Requests for Admission, Solari admits that it failed to notify Plaintiffs that an investigative consumer report would be made regarding her character, general reputation, personal characteristics, and mode of living (UMF 6); failed to provide Plaintiffs with the name or address of the investigative consumer reporting agency that prepared the reports (UMF 4); failed to provide Plaintiffs a summary of the provisions of Civil Code section 1786.22 (UMF 5); and failed to certify to the investigative reporting agency, RentGrow, that it made disclosures to Plaintiffs required by Civil Code section 1786.16 (UMF 10).

Accordingly, Plaintiffs have met their initial burden of providing evidence showing that there are not triable issues of material fact as to whether Solari violated the ICRAA. The burden now shifts to Solari to show such triable issues of material fact.

In opposition, Solari concedes violation of the ICRAA, but argues that Plaintiffs should be limited to one $10,000 penalty.

In ruling on this manner in a related case, Sheila Gregory, et al v. Solari Enterprises, Inc., et al, this Court found:

[S]tatutory damages pursuant to Civil Code § 1786.50(a) are limited to “per action”, not “per report.” When applying civil penalties, the narrowest construction must be given. (Hale v. Morgan (1978) 22 Cal.3d 388, 405-406.) Plaintiff concedes that a single primary right has been violated. (Motion at pg. 13.) Even if a single primary right has been violated multiple times, it remains a single cause of action, limiting the extent of recovery through a statutory penalty. (Miller v. Collectors Universe, Inc. (2008) 159 Cal.App.4th 988, 1004-1008.) Thus, because the ICRAA violations constitute a single cause of action, Plaintiffs are each limited to $10,000 under Civil Code § 1786.50(a)(1). (RFJN Ex. C at p. 40.)

The Court sees no reason to deviate from that ruling here.

Accordingly, Plaintiffs are each entitled to a single, $10,000 award under ICRAA.

B. Offset

Finally, in Opposition, Solari argues that should the Court find Solari liable, Plaintiffs’ award should be offset by the settlement amount reached between Plaintiffs and Defendant RentGrow, Inc.

Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, or to one or more other co-obligors mutually subject to contribution rights, it shall have the following effect:

a. It shall not discharge any other such party from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it, whichever is the greater.

b. It shall discharge the party to whom it is given from all liability for any contribution to any other parties.

“[T]he language of section 877 is significant—its drafters did not use the narrow term ‘joint tortfeasors,’ they used the broad term ‘tortfeasors claimed to be liable for the same tort.’ This language was meant to eliminate the distinction between joint tortfeasors and concurrent or successive tortfeasors, and to permit broad application of the statute.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 302 (citations omitted.)) Section 877 has been construed to apply even more generally to “all tortfeasors joined in a single action” whose acts or omissions “concurred to produce the sum total of the injuries to the plaintiff.” (Gackstetter v. Frawley¿(2006) 135 Cal.App.4th 1257, 1272 (citations omitted); see also Bostick v. Flex Equipment Co., Inc. (2007) 147 Cal.App.4th 80, 111-12 [“The broad language ‘tortfeasors claimed to be liable for the same tort’ encompasses persons claimed to be liable in tort for the same injury, whether they acted in concert, concurrently, or successively, and also encompasses persons whose liability is vicarious.”] (Emphasis added.))

Solari argues that, as RentGrow was the consumer investigative agency through which Solari requested Plaintiffs’ background report, Solari’s damages should be offset by RentGrow’s settlement amount.

On Reply, Plaintiffs contend that their settlement with RentGrow was not for monetary value, and was only under the agreement that RentGrow would waive its right to costs and attorneys’ fees for its dismissal. (Murphy Decl. ¶ 2.) As Plaintiffs have repeatedly stated under penalty of perjury that the settlement agreement was nonmonetary, the Court finds that Solari is not entitled to offset.

Plaintiffs’ Motion for Summary Adjudication of the First Cause of Action for Violation of ICRAA is GRANTED. Plaintiffs are each awarded $10,000 in statutory damages.

DATED: May 22, 2023

___________________________

Hon. Jill T. Feeney

Judge of the Superior Court