Judge: Jon R. Takasugi, Case: 22STCV23799, Date: 2025-02-27 Tentative Ruling

Case Number: 22STCV23799    Hearing Date: February 27, 2025    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s motion for summary adjudication is CONTINUED to 3/27/25 at 8:30 a.m., to allow supplemental briefing per code to be submitted based on the expert opinion related to Defendant’s eleventh affirmative defense.

On 7/22/2022, Plaintiffs Stacey Carr-Susor, Chi Cho, Deanne Turner, and Jean Mejia filed suit against Barrington Pacific, LLC, alleging: (1) violations of the Reporting Act; and (2) unfair business practices.

            On 4/12/2024, the Court denied Defendant’s motion for summary judgment or, in the alternative, motion for summary adjudication, and denied Plaintiffs’ motion for summary adjudication of the first cause of action without prejudice.

            On 12/11/2024, Plaintiffs moved for summary adjudication of their first cause of action.

Legal Standard 

Code of Civil Procedure 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.) 

Discussion

            Plaintiffs argue that they are entitled to summary adjudication of the first cause of action because Defendant:

(1) violated the Investigative Consumer Reporting Agencies Act (ICRAA), California Civil Code §§ 1786–1786.60, by obtaining investigative consumer report about them;

(2) violated California Civil Code § 1786.16(b)(1) by not providing Plaintiffs with a means by which they could indicate on a written form, by means of a box to check, that they wanted to receive a copy of any investigative consumer report that was prepared about them;

(3) violated California Civil Code § 1786.16(a)(3) by not providing Plaintiffs with the name and address of the investigative consumer reporting agency that would prepare the reports and a summary of the provisions of Civil Code § 1786.22;

(4) violated California Civil Code § 1786.16(a)(3) by not notifying Plaintiffs in writing that an investigative consumer report would be made regarding each Plaintiffs’ character, general reputation, personal characteristics, or mode of living within three days after the date on which the reports were first requested by Defendant Barrington Pacific, LLC;

(5) violated the ICRAA (Civ. Code, §§ 1786–1786.60) by obtaining investigative consumer reports about them from CoreLogic Rental Property Solutions; and

            Lastly, Plaintiffs argue that Defendant’s eleventh affirmative action lacks merit because there is no indication that ICRAA is prospective, or that it is not meant to impose liability when a consumer is not subject to any adverse decision.

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. 

            In its 4/12/2024, the Court set forth at length its analysis of the relevant ICRAA remedies provisions, and concluded that “that a consumer who can prove an ICRAA violation is entitled to recover the greater of actual damages or $10,000.” (4/12/2024 Ruling.) The Court then went on to analyze whether or not Plaintiffs lacked standing to bring their claims. The Court expressly stated “the Court finds Barrington Pacific’s arguments regarding standing and the interpretation of the ICRAA Remedies Provision unpersuasive.” (Id.)

            In opposition, Defendant again raises the argument that Plaintiff lacks standing. This amounts to a request to reconsider the Court’s previous conclusion. Such a request is not only untimely, but is not properly raised through an opposition to a motion for summary adjudication. (See Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1577 “…regardless of the name, a motion asking the trial court to decide the same matter previously ruled on is a motion for reconsideration…”)

            Moreover, as noted in Plaintiff’s motion, the Court recently considered, and rejected, arguments analogous to Defendant’s concerning the constitutionality and standing of the ICRAA. (Bernuy v. Bridge Property Management Company (2023) 89 Cal.App.5th 1174, 1186-1187

            Accordingly, the Court does not re-address the standing arguments raised in the moving papers, but limits its analysis to the remaining issues.

The relevant remedies statute under ICRAA (hereinafter, ICRAA Remedies Provision) 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].)  

Here, each of the three Plaintiffs has submitted their declaration testifying that 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. (Mejia Decl. ¶¶ 5-9; Turner Decl. ¶¶ 5-9; Cho Decl. ¶¶ 5-9.) 

In opposition, Defendant argues that Plaintiff has not shown that any investigative consumer report was obtained about them. An investigative consumer report is “a consumer report in which information on a consumer’s character, general reputation, personal characteristics, or mode of living is obtained through any means.” Cal. Civ. Code § 1786.2(c).

To show there is a triable issue of fact as to whether an investigative consumer report was obtained by Defendant, Defendant submitted evidence that:

-         Neither the criminal background checks or the eviction / rental history reports contained any information about Plaintiffs Mejia, Turner, or Cho’s character, general reputation, personal characteristics, or mode of living. [Compendium, Exhs. Y-AA.]

-         The CrimSafe Report stated “[b]ased upon your community CrimSafe Settings and the results of this search, no disqualifying records were found” for each Plaintiff, including Plaintiff Carr-Susor. [Id. at Exhs. Y-BB (emphasis removed).]

-         The RegistryCheck Report stated that there were “No Court Records Found” for Plaintiffs Mejia, Turner, and Cho. [Id. at Exhs. Y-AA.] The Plaintiffs themselves provided the information about their past conviction history and eviction history as well. [Id. at Exhs. A-D.]

-         Each Plaintiff marked “no” for both questions – whether they have ever been evicted or convicted of a misdemeanor or felony in the previous seven (7) years. [Id.]

Based on this, Defendant argues that there is a triable issue of fact as to whether a report containing no information can be considered an investigative consumer report. However, criminal background checks and eviction/rental history reports fall within the scope of the ICRAA, as these background checks contain private personal information on Plaintiff’s “character, general reputation, personal characteristics, or mode of living.”

In Connor v. First Student Inc. (2018) 5 Cal.5th 1026, “[a]s part of the background checks, [the reporting agency] provided [the defendant] with reports that included information from criminal record checks and searches of sex offender registries, as well as the subject's address history, driving records, and employment history.” (Connor, supra, 5 Cal.5th at p. 1030.) The California Supreme Court held, “[t]he background check that First conducted here is an investigative consumer report under the ICRAA because it reported on Connor’s ‘character, general reputation, personal characteristics, or mode of living.’” (Id. at 1033, citing Civ Code, § 1786.2(c).)

Here, similarly, the investigative consumer reports that Defendant Barrington requested and received about the Plaintiff included information from criminal record checks, searches of sex offender registries, address histories and eviction/rental history reports. (UMF 3-6, 12-15, 21-24, 30-33, 39-42, 48-51, 57-60, 66-69, 75-78, 84-87, 93-96, 102-105, 111-114, 120-123, 129-132, 138-141, 147-150, 156-159, 165-168, 174-177.)

As such, the Court disagrees that there is a triable issue of fact as to whether a report containing no information can be considered an investigative consumer report.

This leaves Defendant’s eleventh affirmative defense. Plaintiff argues that Defendant’s eleventh affirmative defense fails as a matter of law, citing this Court’s 7/3/2024 ruling on Defendant’s motion to compel further responses. However, this was not dispositive of the issue of the viability of the affirmative defense for the remainder of the action.

            In opposition, Defendant contends that it has retained an expert to provide the evidence necessary to present the affirmative defense to a trier of fact, in spite of this ruling. However, notably, Defendant’s motion does not contain any evidence or argument as to how its expert will disclose a triable issue of fact. Rather, its argument in full is: “Suffice it to say, the ruling denying discovery on the well-pled affirmative defense substantially hinders Defendant’s ability to present the affirmative defense in a complete way. That said, Defendant has retained an expert to provide the evidence necessary to present the affirmative defense to a trier of fact, thus precluding summary adjudication for Plaintiffs.” (Opp., p. 23, fn. 6.)

 Defendant argues that parties will not exchange expert witness information until 2/18/2025, and prior to designation, an expert’s opinions remain protected by the attorney work-product doctrine and the expert’s identity remains privileged. (See Hernandez v. Superior Court (2003) 112 Cal. App. 4th 285.) However, this does not mean the Court can conclude a triable issue exists. Rather, the Court will continue this motion to allow supplemental briefing to be submitted based on the expert opinion. The Court will then determine whether or not Defendant’s evidence is sufficient to disclose a triable issue as to its affirmative defense.

            Based on the foregoing, Plaintiff’s motion for summary adjudication is continued, to allow supplemental briefing to be submitted based on the expert opinion related to Defendant’s eleventh affirmative defense.

It is so ordered.

Dated:  February    , 2025

   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.