Judge: Jon R. Takasugi, Case: 22STCV23799, Date: 2024-04-12 Tentative Ruling

Case Number: 22STCV23799    Hearing Date: April 12, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant Barrington Pacific, LLC’s motion for summary judgment or, in the alternative, motion for summary adjudication is DENIED.

            Plaintiffs Deanna Turner, Jean Mejia, and Chi Cho’s motion for summary adjudication on their first cause of action for violations of the Investigative Consumer Reporting Agencies Act in the Complaint is DENIED.

            On July 22, 2022, Plaintiffs Stacey Carr-Susor, Chi Cho, Deanna Turner, and Jean Mejia filed suit against Barrington Pacific, LLC (“Barrington Pacific”), and Does 1 through 30, inclusive, asserting causes of action for (1) violations of the Investigative Consumer Reporting Agencies Act (the “ICRAA”), and (2) violation of the unfair competition law (Bus. & Prof. Code Section 17200) (the “UCL”).

            On January 4, 2024, Barrington Pacific filed the instant motion for summary judgment or, in the alternative, summary adjudication.

            On January 5, 2024, Plaintiffs Deanna Turner, Jean Mejia, and Chi Cho (collectively, “Moving Plaintiffs” or “Plaintiffs”) filed the instant motion for summary adjudication of their first cause of action for violation of the ICRAA.

            On January 19, 2024, the Court granted the plaintiffs’ ex parte application to advance the motion for summary adjudication to the same date as the hearing on Barrington Pacific’s motion on April 4, 2024.

            On March 21, 2024, Barrington Pacific filed its opposition to the Moving Plaintiffs’ motion for summary adjudication.

            On March 21, 2024, the Moving Plaintiffs filed their opposition to Barrington Pacific’s motion.

            On March 29, 2024, Barrington Pacific filed its reply in support of its motion.

            A non-jury trial is set for November 4, 2024.

Legal Standard

Code of Civil Procedure section 437c (“Section 437c”) subdivision (a) provides that 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 shall be granted if there is no triable issue as to any material fact, and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Under subdivision (p)(1) of Section 437c, once the plaintiff has met her burden of showing that there is no defense to a cause of action by proving each element of the cause of action, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. On the other hand, where a defendant presents evidence showing one or more elements of a cause of action cannot be established, then the burden shifts to plaintiff to show the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) 

A party can also move for summary adjudication of a particular issue, which can 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 Civ. Proc., § 437c, subd. (f)(1).) 

The moving party’s burden on summary judgment “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 fn.11, original italics.) 

Factual Background

The Complaint alleges the following.

Between 2018 and 2021, and within the applicable statute of limitations, the plaintiffs applied for housing at Barrington Plaza, located at 11740 Wilshire Blvd, Los Angeles, California 90025 (“Barrington Plaza”), and Pacific Plaza, located at 1431 Ocean Ave, Santa Monica, California 90401 (“Pacific Plaza”). (Compl., ¶¶ 3, 14.)

The plaintiffs’ housing application and authorization form included a release permitting the defendants to obtain private, and personal information from third parties about each of the Plaintiffs. (Compl., ¶ 15.) The defendants used the release signed by the plaintiffs to obtain investigative consumer reports about the plaintiffs. (Compl., ¶ 16.)

Section 1786.16(b) of the ICRAA states that any person requesting an “investigative consumer report” is required 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.” (Compl., ¶ 20.)

Here, in violation of the ICRAA, the release that the plaintiffs were required to sign did not give them a means (i.e., the check box) to indicate whether they wanted to obtain a copy of any report the defendants received for their application. (Compl., ¶¶ 16, 21.)

In addition, Section 1786.16(a)(3) of the ICRAA states: “If an investigative consumer report is sought . . . 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.” (Compl., ¶ 22.)

            Here, in violation of the ICRAA, the defendants never told Plaintiffs that investigative consumer reports would be prepared regarding their character, general reputation, personal characteristics, and mode of living. (Compl., ¶ 16.)

            The defendants’ violations of the ICRAA constituted unlawful and unfair business practices within the meaning of the UCL. (Compl., ¶ 32.)

Requests for Judicial Notice

            On January 4, 2024, Barrington Pacific filed a request for judicial notice of the Complaint (Exhibit F in the defendant’s compendium of evidence filed on January 4, 2024, in support of its motion (“Jan 4 COE”).)

            On January 5, 2024, the Moving Plaintiffs filed a request for judicial notice of the Court of Appeal case Bernuy v. Bridge Property Management Company (2023) 89 Cal.App.5th 1174 (“Bernuy”) (Exhibit 1 in the request for judicial notice).

            On March 21, 2024, Barrington Pacific filed a request for judicial notice of the following.

1.      Plaintiffs’ Complaint (Exhibit E to defendant’s compendium of evidence on March 21, 2024, in support of its opposition to the Moving Plaintiffs’ motion for summary adjudication (“March 21 COE”)).

2.      Defendant’s Answer, including the affirmative defenses (Exhibit H of March 21 COE).

3.      Defendant’s Request for an Informal Discovery Conference (Exhibit L of the March 21 COE).

4.      The following Exhibits are attached to this Request for Judicial Notice:

a)      A copy of Barrington Pacific’s instant motion for summary judgment or adjudication (Exhibit 1 of the request for judicial notice)

b)     A copy of Barrington Pacific’s motion for summary judgment ruling in the previously related case Yeh v. Barrington Pacific, LLC, Case No. 20STCV42994 (Exhibit 2 of the request for judicial notice).

            On March 21, 2024, the Moving Plaintiffs filed a request for judicial notice of the following.

1.      Bernuy v. Bridge Property Management Company (2023) 89 Cal.App.5th 1174, 1186-1187.

2.      Civil Code section 1786.50 (effective 1998 to December 31, 2001).

3.      Civil Code Section 1786.50 (effective January 1, 2002, to September 27, 2002).

4.      Civil Code Section 1786.50 (effective September 28, 2002 to December 31, 2003).

5.      Civil Code Section 1786.50 (effective January 1, 2004).

6.      California Bill Analysis, Senate Committee 1997-1998 Regular Session, Assembly Bill 1454.

7.      California Bill Analysis A.B. 655 Sen. 8/21/2001.

8.      California Bill Analysis, Senate Committee 2001-2002 Regular Session, Assembly Bill 2868.

9.      California Bill Analysis, Assembly Committee 2003-2004 Regular Session, Assembly Bill 1399.

10. Diaz v. Fist Advantage Corp. (2006) 2006 U.S. Dist. LEXIS 102566.

11. In re Uber FCRA Litig. (2018) 2018 U.S. Dist. LEXIS 74685.

12. Garcia v. Quest Grp. Consulting LLC (2022) 2022 U.S. Dist. LEXIS 14555.

The Court GRANTS all requests for judicial notice above. (See Evid. Code 452, subds. (c) and (d) [stating that a court may take judicial notice of official acts of the legislative departments of any state and court records of any court of any state and the United States].

Evidentiary Objections

            On March 21, 2024, the Moving Plaintiffs filed evidentiary objections to the declarations of Justin Penn and Michael Means that were filed in support of Barrington Pacific’s motion.

The Court rules on the objections to the declaration of Justin Penn as follows.

·        No. 1 (the only objection): SUSTAINED on relevance grounds. Barrington Pacific fails to explain why the fact that plaintiffs’ counsel solicited clients to sue their landlords under the ICRAA is relevant to the plaintiffs’ claims.

The Court rules on the objections to the declaration of Michael Means as follows.

·        No. 1: SUSTAINED on hearsay grounds. Notwithstanding that ruling, the allegations that (1) the Moving Plaintiffs had their rental applications approved and (2) they are currently Barrington Pacific’s tenants are facts alleged in or can be inferred from the Complaint. (See CytoDyn of New Mexico, Inc. v. Amerimmune Pharmaceuticals, Inc. (2008) 160 Cal.App.4th 288, 299 [“The allegations in a plaintiff's complaint constitute judicial admissions, and are ‘conclusive concessions of the truth of a matter and have the effect of removing it from the issues’ [citation], so that ‘a pleader cannot blow hot and cold as to the facts positively stated’ ” [Citation.]’ [Citation]”]; Compl., ¶¶ 6-9 [alleging the plaintiffs are current tenants of Pacific Plaza and Barrington Plaza], 15 [alleging the plaintiffs applied for housing at those properties].)

·        No. 2: SUSTAINED on hearsay grounds. Notwithstanding that ruling, the Complaint alleges that the plaintiffs’ housing application included a release permitting Barrington Plaza to obtain the plaintiffs’ personal and private information from third parties. (Compl., ¶ 15.)

Barrington Pacific has not filed any evidentiary objections.

Discussion – Barrington Pacific’s Motion for Summary Judgment or Adjudication

I.                   First Cause of Action for Violation of the ICRAA

The Complaint alleges that as a direct and proximate result of the defendants’ failure to comply with ICRAA, the Plaintiffs incurred “damages, including but not limited to attorneys’ fees and costs, as set forth in the prayer for relief.” (Compl., ¶ 25.)

Therefore, “Plaintiffs seek all available remedies pursuant to California Civil Code section 786.50, including statutory damages and/or actual damages, punitive damages, and attorneys’ fees and costs.” (Compl., ¶ 28.) The Complaint does not specify what “damages” Plaintiffs incurred other than attorneys’ fees and costs.

The remedies statute for ICRAA states:

An investigative consumer reporting agency or user of information that fails to comply with any requirement under [ICRAA] 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.

(Civ. Code, § 1786.50, subd. (a) [emphasis added].)

The Court will refer to that statute as the “ICRAA Remedies Provision.”

            Compare the ICRAA Remedies Provision with the following language in Fair Credit Reporting Act, 15 U.S.C.S. § 1681, et seq. (the “FCRA”):

Any person who willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of--

(1)(A) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000; or

(B) in the case of liability of a natural person for obtaining a consumer report under false pretenses or knowingly without a permissible purpose, actual damages sustained by the consumer as a result of the failure or $1,000, whichever is greater;

(2) such amount of punitive damages as the court may allow; and

(3) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court.

(15 U.S.C.A. § 1681n(a) [emphasis added]; Millview County Water Dist. v. State Water Resources Control Bd. (2019) 32 Cal.App.5th 585, 594, fn. 5 [“Despite differences between state and federal law, it can be “appropriate for [a] court to look to relevant federal authorities for further guidance” in interpreting similar language used in both state and federal statutes”].)

            Under the ICRAA Remedies Provision, an investigative consumer reporting agency or user of information that fails to comply with “any requirement under ICRAA is liable to the consumer for (1) actual damages sustained by the consumer as a result of the failure OR (2) $10,000, whichever is greater.

            The parties contest the meaning of the ICRAA Remedies Provision as follows.

(1)  Barrington Pacific argues that “actual damages” and “$10,000” are not alternatives under the ICRAA Remedies Provision. Instead, they are all “damages.” Therefore, it is not enough for the Plaintiffs to prove that the defendant violated ICRAA; the Plaintiffs must also prove that they sustained actual damages (or concrete harm) as a result of that violation in order to recover anything under ICRAA.

(2)  Plaintiffs argue that the $10,000 is a statutory penalty and is an alternative remedy to actual damages. In other words, as long as the Plaintiffs can prove that the defendant violated any requirement under ICRAA, the Plaintiffs are entitled to $10,000 if that amount is greater than the actual damages they sustained due to the defendant’s violation of ICRAA.

“ ‘Our fundamental task in interpreting a statute is to determine the Legislature’s intent so as to effectuate the law’s purpose.’ [Citation.]” (Millview County Water Dist. v. State Water Resources Control Bd. (2019) 32 Cal.App.5th 585, 591 (“Millview”).)

“We begin by examining the statutory language, giving the words their usual, ordinary meanings and giving each word and phrase significance. [Citation.] We consider such language “ ‘in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. ’ ” [Citation.]” (Millview, supra, 32 Cal.App.5th at p. 591.)

“ ‘If there is no ambiguity in the language, we presume the Legislature meant what it said, and the plain meaning of the statute governs.’ [Citation.]” (Millview, supra, 32 Cal.App.5th at p. 591.)

“Only ‘[i]f the statutory language permits more than one reasonable interpretation’ do we ‘consider other aids, such as the statute’s purpose, legislative history, and public policy.’ [Citation.]” (Millview, supra, 32 Cal.App.5th at p. 591.)

If the statute’s meaning is still unclear, then in the third and final step, the court would apply “ ‘reason, practicality, and common sense to the language at hand.’ [Citation.]” (Ailanto Properties, Inc. v. City of Half Moon Bay (2006) 142 Cal.App.4th 572, 582.) “The words of the statute should be interpreted ‘to make them workable and reasonable.’ [Citation.] [The court would] also consider the consequences that will flow from a particular statutory interpretation.” (Id. at p. 583.)

Here, the Court finds that the phrase “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” in the ICRAA Remedies Statute is ambiguous.

On one hand, it could mean that (1) a consumer who is not bringing a class action is only entitled to recover actual damages sustained as a result of the ICRAA violation, while (2) a consumer who is bringing a class action is entitled to recover either (A) actual damages or (B) $10,000, whichever of those two is greater in that class action. The Court finds this meaning plausible because the word “or” in the statute is immediately followed by a caveat “except in the case of class actions” to suggest that class action consumers are to recover something different than a consumer that is not bringing a class action.

On the other hand, the insertion of the phrase “except in the case of class actions” could mean that the Legislature intended that all consumers (except for class action consumer plaintiffs) shall recover actual damages or $10,000, whichever is greater. In other words, class action consumers can only recover actual damages.

If the latter view is the correct interpretation, then giving the word “or” and the phrase “whichever sum is greater” their ordinary and plain meaning means that “actual damages” and “$10,000” are intended to be alternative recoveries. Indeed, by stating that a violator “is liable” to a consumer “in an amount equal to” actual damages or $10,000, whichever is greater (plus costs and attorney’s fees should the consumer prevail), the statute shows the Legislature intended to guarantee a consumer either actual damages or at least $10,000 for ICRAA violation.  

It is worth noting that under the FCRA, the phrase “less than $100 and not more than $1,000” is preceded by the word “damages” and, therefore, it is clear that those amounts are “damages” and not “penalties.” In Limon v. Circle K Stores Inc. (2022) 84 Cal. App. 5th 671 (“Limon”), the California Court of Appeal noted that “the statutory scheme of the FCRA uses both terms—damages and penalties—to describe potential relief available under the statute.” (Id. at p. 700.) “ ‘Ordinarily, where the Legislature uses a different word or phrase in one part of a statute than it does in other sections or in a similar statute concerning a related subject, it must be presumed that the Legislature intended a different meaning.’ ” [Citation.] ‘We usually “presume differences in language ... convey differences in meaning.’ [Citations.]” (Id. at p. 701.) The Limon court noted that the FCRA did not define damages and penalties and, therefore, looked at the definitions of those words in Black’s Law Dictionary. (Ibid.) The appellate court concluded that the dictionary’s definitions and federal and state case law supported the interpretation that “damages connotes compensation for an injury and the term penalty connotes punishment for wrongdoing.” (Id. at p. 702.)

However, “$10,000” in the ICRAA Remedies Statute is not preceded by any descriptive word such as “damages” or “penalties.”

Therefore, the statute is ambiguous as to whether that $10,000 is meant to be statutory damages or civil penalties. (See Raines v. Coastal Pacific Food Distributors, Inc. (2018) 23 Cal.App.5th 667, 681 [“damages and civil penalties have different purposes; these different purposes may well explain the Legislature’s reasoning. Damages are intended to be compensatory, to make one whole. (See Civ. Code, § 3281.) Accordingly, there must be an injury to compensate. On the other hand, ‘Civil penalties, like punitive damages, are intended to punish the wrongdoer and to deter future misconduct.’ [Citation.] An act may be wrongful and subject to civil penalties even if it does not result in injury”].) According to the California Supreme Court, “ ‘actual damages,’ … generally refers to pecuniary damages.” (Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 640.) Specifically, “[t]he phrase ‘actual damages’ is ordinarily synonymous with compensatory damages which may include damages for mental suffering.’ [Citation.]” (McNairy v. C.K. Realty (2007) 150 Cal.App.4th 1500, 1506; see also Citizens of Humanity, LLC v. Costco Wholesale Corp. (2009) 171 Cal.App.4th 1, 19, disapproved on other grounds in Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310 [“[One case] … recognized that ‘actual damages’ ordinarily means ‘compensatory damages’ …”].)

Given the ambiguities noted above, it is proper for the Court to consider other aids, such as the statute’s purpose and legislative history, to find out if the Legislature intended the $10,000 to be statutory penalties or minimum damages available to any consumer that can prove a violation of the relevant ICRAA provisions.

Civil Code section 1786 is part of ICRAA and is titled “Legislative findings and declarations.”

According to that statute, the Legislature stated, “the purpose of this title [is] to require that investigative consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for employment, insurance information, and information relating to the hiring of dwelling units in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of the information in accordance with the requirements of this title.” (Civ. Code, § 1786, subd. (f) [emphasis added].) The statute further states that “[t]he Legislature hereby intends [through ICRAA] to regulate investigative consumer reporting agencies pursuant to this title in a manner which will best protect the interests of the people of the State of California.” (Civ. Code, § 1786, subd. (g) [emphasis added].)

The Court finds that the purpose of ICRAA supports the Plaintiffs’ interpretation that the $10,000 is meant to be a civil penalty because interpreting the statute in that manner would advance the Legislature's intent of regulating investigative consumer reporting agencies and other covered violators in a manner that will best protect the interests of the California citizens and consumers because it will deter future misconduct.

Further, according to the legislative history, in 1998, the Legislature passed S.B. No. 1454 (“SB 1454”), which “would add new procedures and notice requirements relating to the investigation of disputes by consumers and the deletion of information in a consumer’s file that is determined to be inaccurate. [That] bill would also increase the minimum amount of damages recoverable by a consumer for violations of the act from $300 to $2,500.” (Consumer Law—Investigative Reporting, 1998 Cal. Legis. Serv. Ch. 988 (S.B. 1454) (WEST) [emphasis added].)

Although the language of SB 1454 described the $2,500 as “damages,” it also described that amount as the “minimum” amount a consumer would recover for violations of ICRAA. The word minimum supports the interpretation that a consumer was entitled to recover either actual damages or the statutory amount, whichever amount was greater.

In 2001, the Legislature passed A.B. No. 655 (“AB 655), recognizing that existing law at the time “regulate[d] the activities of investigative consumer reporting agencies ….” (Consumer Protection—Creditors—Personal Identification Information, 2001 Cal. Legis. Serv. Ch. 354 (A.B. 655) (WEST) [the preamble section].)

AB 655 “would revise and recast various provisions governing the activities of investigative consumer reporting agencies. Among other things, it would expand the definition of ‘investigative consumer reporting agency,’ increase disclosure requirements, eliminate certain exemptions, increase penalties for violations, and would make related changes.” (Consumer Protection—Creditors—Personal Identification Information, 2001 Cal. Legis. Serv. Ch. 354 (A.B. 655) (WEST) [the preamble section] [emphasis added].)

AB 655 amended the ICRAA Remedies Statute to increase a consumer’s minimum recovery of violation of the Act from $2,500 to $10,000.

It is also worth noting that at least one Court of Appeal case has implied all damages under the ICRAA Remedies Statute are penalties. (See Ortiz v. Lyon Management Group, Inc. (2007) 157 Cal.App.4th 604, 614 [stating: “ICRAA imposes stricter duties and more severe penalties on persons compiling or requesting tenant screening reports containing character information than the [Consumer Credit Reporting Agencies Act (CCRAA) (§ 1785.1 et seq.)] does on those compiling or requesting tenant screening reports containing creditworthiness information.” To prove that ICRAA imposes more severe penalties, the appellate court, in a footnote (fn. 7), compared the ICRAA Remedies Statute, Civil Code section 1786.50, subds. (a), with CCRAA provisions].)

In light of the above, the Court agrees with the Plaintiffs that a consumer who can prove an ICRAA violation is entitled to recover the greater of actual damages or $10,000.

Notwithstanding the above findings, Barrington Pacific (1) argues that Plaintiffs lack standing to bring their claims because they cannot prove that they suffered concrete harm, and, in so arguing, implies that (2) the above interpretation conflicts with California’s standing requirements.

“Standing is a question of law ….” (Estate of Bowles (2008) 169 Cal.App.4th 684, 690.)

“ ‘Standing is typically treated as a threshold issue, in that without it no justiciable controversy exists.’ [Citation.]” (CashCall, Inc. v. Superior Court (2008) 159 Cal.App.4th 273, 286 (“CashCall”).)

“ ‘As a general principle, standing to invoke the judicial process requires an actual justiciable controversy as to which the complainant has a real interest in the ultimate adjudication because he or she has either suffered or is about to suffer an injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented to the adjudicator. To have standing, a party must be beneficially interested in the controversy; that is, he or she must have “some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.” [Citation.] The party must be able to demonstrate that he or she has some such beneficial interest that is concrete and actual, and not conjectural or hypothetical. A complaining party’s demonstration that the subject of a particular challenge has the effect of infringing some constitutional or statutory right may qualify as a legitimate claim of beneficial interest sufficient to confer standing on that party. [Citation.]’ [Citation.]” (CashCall, supra, 159 Cal.App.4th at p. 286 [emphasis added].)

Limon is instructive with regard to the issue of standing under California law.

The emphasis on “under California law” is important because although Limon was about the FCRA, the standing issue there was not whether the plaintiff had shown he had standing under the FCRA or even under federal law, but whether he had standing under California law to sue in a California court. The case’s background supports that conclusion. There, the appellant and plaintiff, Ernesto Limon (“Limon”), sued his prospective employer, Circle K Stores Inc. (“Circle K”), alleging that Circle K violated the 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, and by actually obtaining the consumer report in reliance on that authorization.” (“, 84 Cal.App.5th at p. 680.) “Prior to filing his complaint in state court, Limon brought suit in [a] federal district court on the same substantive claims. [Footnote omitted.]” (Ibid. [emphasis added].) “The district court dismissed the federal action without prejudice in connection with a motion for summary judgment and related motion for reconsideration brought by Circle K, finding [that] Limon lacked standing under article III, section 2 of the United States Constitution.” (Ibid. [emphasis added].) Thereafter, Limon filed suit in state court, making the same allegations against Circle K.

In Limon, the appellate court concluded that “as a general matter, to have standing to pursue a claim for damages in the courts of California, a plaintiff must be beneficially interested in the claims he is pursuing.” (Limon, supra, 84 Cal.App.5th at p. 700.)

However, interpreting the ICRAA Remedies Statute to mean that a mere violation is enough to confer standing on consumers does not conflict (as the defendant implies) with the requirement that the consumers show they are beneficially interested in the claims they are pursuing. For example, ICRAA requires persons procuring or requesting an investigative consumer report to be made to 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. (Civ. Code, § 1786.16, subd. (a)(3).) Therefore, if those persons fail to notify the consumers as ICRAA requires, then their consumers are beneficially interested in that ICRAA violation because they were entitled to information under ICRAA but did not receive that information. At that point, the interest of those consumers is neither conjectural nor hypothetical because a violation has in fact occurred. (See Civ. Code, § 1786.50, subd. (a) [a covered violator if it “fails to comply with any requirement under [ICRAA] with respect to an investigative consumer report …”].)

For those reasons, the Court finds Barrington Pacific’s arguments regarding standing and the interpretation of the ICRAA Remedies Statute unpersuasive.

The Court also finds that Moving Plaintiffs have met their burden of showing triable issues exist as to whether the defendant violated the statute and the Plaintiffs suffered actual damages. Each of the three plaintiffs has submitted their declaration testifying that the defendant never provided them with a copy of any of the reports it received about them, never provided them with any form that had a box to check if the plaintiffs wanted to receive a copy of any investigative consumer reported that was prepared about them, never provided them with the name or address of the investigative consumer reporting agencies, never provided them with a summary of the provisions of California Civil Code section 1786.222, and never told them that any investigative consumer report would be made regarding their character, general reputation, personal characteristics, or mode of living. (Declaration of Jean Mejia (“Mejia Decl.”), ¶¶ 5-9; Declaration of Deanna Turner (“Turner Decl.”), ¶¶ 5-9; Declaration of Chi Cho (“Cho Decl.”), ¶¶ 5-9.)

The Court notes that with regard to Plaintiff Chi Cho (“Cho”), Barrington Pacific argues that the statute of limitations bars the plaintiff’s ICRAA claim because (1) Cho signed the rental application that he alleges violated the ICRAA on June 3, 2020 (the date he discovered that the application he signed did not contain all the required disclosures under the ICRAA) and (2) filed his complaint on July 22, 2022, more than two years after the discovery of Defendant’s alleged violations of the ICRAA. According to the defendant, ICRAA imposes a two-year statute of limitations on claims brought to enforce liability under it. (Civ. Code § 1786.52 [“An action to enforce any liability created under this title may be brought in any appropriate court of competent jurisdiction within two years from the date of discovery”].)

However, as the Plaintiffs argue in their opposition and the defendant does not dispute in its reply, Emergency Rule 9 Related to COVID-19 tolled Plaintiff Cho’s claim until October 1, 2020. (Opposition to Defendant’s Motion, p. 21:3-12 [“Pursuant to Emergency Rule 9(a), ¶ Tolling statutes of limitations over 180 days ¶ Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020” (emphasis removed)].) Cho then filed the lawsuit on July 22, 2022, before the statute of limitations expired on October 1, 2022.

For those reasons, Barrington Pacific’s request for summary adjudication of the first cause of action for violation of ICRAA is denied.

II.               Second Cause of Action for Violation of the UCL

Plaintiffs allege in their second cause of action that the defendants violated the UCL by violating the ICRAA and, therefore, seek to recover (among other things) restitution for all fees they paid relating to their housing applications to the defendants. (Compl., ¶¶ 31, 32.)

Barrington Pacific now moves for summary adjudication of the second cause of action, arguing that Plaintiffs’ claims under the UCL fail because their ICRAA claims also fail.

However, as shown above, the Court has found that the Plaintiffs have proven there are triable issues of material fact with regard to their ICRAA claims.

The defendant also argues that Plaintiffs do not have standing to bring a UCL claim because they did not lose any money or property due to the alleged ICRAA violations. 

“The UCL prohibits, and provides civil remedies for, unfair competition, which it defines as ‘any unlawful, unfair or fraudulent business act or practice.’ [Citation.]” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 320 (“Kwikset”).)

“In 2004, the electorate substantially revised the UCL’s standing requirement; where once private suits could be brought by ‘any person acting for the interests of itself, its members or the general public’ [citation], now private standing is limited to any ‘person who has suffered injury in fact and has lost money or property’ as a result of unfair competition [citations].’” (Kwikset Corp., supra, 51 Cal.4th at pp. 320–321 [emphasis added].)

“ ‘The intent of this change was to confine standing to those actually injured by a defendant’s business practices and to curtail the prior practice of filing suits on behalf of ‘clients who have not used the defendant’s product or service, viewed the defendant’s advertising, or had any other business dealing with the defendant ….’ ” [Citation.]’ [Citation.]” (Kwikset Corp., supra, 51 Cal.4th at p. 321.)

Therefore, “under the UCL, standing extends to ‘a person who has suffered injury in fact and has lost money or property as a result of the unfair competition’ [citation] ….” (Kwikset Corp., supra, 51 Cal.4th at pp. 321–322.)

“Lost money or property” means that “a plaintiff now must demonstrate some form of economic injury.” (Kwikset Corp., supra, 51 Cal.4th at p. 323.) “[L]ost money or property—economic injury—is itself a classic form of injury in fact.” (Ibid.) “If a party has alleged or proven a personal, individualized loss of money or property in any nontrivial amount, he or she has also alleged or proven injury in fact.” (Id. at p. 325.) “Because the lost money or property requirement is more difficult to satisfy than that of injury in fact, for courts to first consider whether lost money or property has been sufficiently alleged or proven will often make sense.” (Ibid.) “If [lost money or property has] not been [sufficiently alleged], standing is absent and the inquiry is complete.” (Ibid.) “If it has been, the same allegations or proof that suffice to establish economic injury will generally show injury in fact as well [citation], and thus it will again often be the case that no further inquiry is needed.” (Ibid.)

Here, Plaintiffs seek to recover (among other things) restitution for all fees they paid relating to their housing applications to the defendants. (Compl., ¶ 32.)

However, to have standing under the UCL to recover those application fees or other lost money or property, the Plaintiffs must show the lost money or property was caused by the defendants’ alleged violation of ICRAA.

Here, even if the Court were to find the defendant has met its initial burden, the Court finds that the Plaintiffs have met their burden of showing that triable issues of material fact exist as to whether they lost property (specifically, copies of their consumer reports) as a result of the defendant’s alleged failure to comply with ICRAA. The Act states: “(b) Any person described in subdivision (d) of Section 1786.12 who requests an investigative consumer report, in accordance with subdivision (a) regarding that consumer, shall do the following: (1) 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. 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.” (Civ. Code § 1786.16, subd. (b)(1) [emphasis added].) Here, each moving plaintiff testifies that had there been a box to check so that they could receive a copy of the report, they would have checked those boxes, but the defendant never provided that box and never gave them a copy of those reports. (Mejia Decl., ¶¶ 5-6; Turner Decl., ¶¶ 5-6; Cho Decl., ¶¶ 5-6.) Barrington Pacific has not cited, and the Court has not found, any law finding that a consumer report cannot be considered “property” within the meaning of UCL standing.

For those reasons, Barrington Pacific’s request for summary adjudication of the second cause of action for violation of the UCL is denied.

III.            Conclusion

Defendant’s motion for summary judgment or, in the alternative, summary adjudication is denied.

Discussion – Plaintiffs’ Motion for Summary Adjudication

            Plaintiffs move for summary adjudication of their first cause of action for violation of ICRAA, arguing that there are no triable issues regarding whether Barrington Pacific (1) obtained investigative consumer reports about Plaintiffs, (2) failed to provide the check box required by Civil Code section 1786.16(b), (3) failed to provide the name and address of the investigative consumer reporting agency that would prepare the reports, (4) failed to provide a summary of the provisions of Civil Code section 1786.22, and (5) failed to provide copies of the reports.

            In their papers, the parties essentially raise the same questions of law (e.g., whether the Plaintiffs have standing to bring their claims in Court and suffered a concrete injury) and discuss the same evidence as the ones discussed above (e.g., the Moving Plaintiffs’ declarations).

            However, the summary judgment and adjudication states: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (Code Civ. Proc. § 437c, subd. (h) [emphasis added].)

            Here, Barrington Pacific argues it has an affirmative defense under ICRAA’s Civil Code section 1786.50, subdivision (c), which states:  

Notwithstanding [the ICRAA Remedies Statute], 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 shall not be liable to a consumer who is the subject of the report where the failure to comply results in a more favorable investigative consumer report than if there had not been a failure to comply.

(Emphasis added.)

Barrington Pacific argues that it pled that affirmative defense in its Answer, but Plaintiffs have prevented the defendant from obtaining information relevant to that defense. (Opposition to Plaintiffs’ Motion, p.  23:4-17; Declaration of Justin M. Penn, ¶¶4-5.) The defendant argues that since it approved each plaintiff’s housing application, each Plaintiffs’ credit very likely improved due to their rental applications and the defendant’s alleged conduct, and, therefore, the defendant cannot be held liable to Plaintiffs under the ICRAA. (Opposition, p. 8:12-15.)

Plaintiffs do not dispute in their reply the defendant’s argument that they withheld discovery that would have allowed the defendant to prove its affirmative defense. (See Reply, p. 7:15-20 [discussing Civil Code section 1786.50, subdivision (c), in the context of the issues of damages and standing under ICRAA but failing to address Barrington Pacific’s argument regarding obtaining discovery relevant to that statute].) 

Therefore, the Court finds it proper to deny the Moving Plaintiffs’ motion for summary adjudication of the first cause of action and allow the defendant to obtain discovery relevant to its affirmative defense.

Accordingly, the Moving Plaintiffs’ motion for summary adjudication is also denied.

It is so ordered.

Dated: April 12, 2024

   Hon. Jon R. Takasugi

   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.