Judge: Robert S. Draper, Case: 20STCV36998, Date: 2022-10-05 Tentative Ruling

Case Number: 20STCV36998    Hearing Date: October 5, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Plaintiff Enija Dean’s Motion for Summary Adjudication is GRANTED.

Plaintiff is awarded $10,000 in statutory damages, offset by the settlement amount between Plaintiff and the settling defendants.

Plaintiff is permitted to file a memorandum of cost and a noticed motion for attorney fees to recovery such costs pursuant to Civil Code § 1786.50(a)(2).  

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 Courson Arts Colony Apartments (the “Subject Property”) located at 931 and 939 E. Avenue Q12, Palmdale, California. (Compl. ¶ 7.) Plaintiff Enija Dean (“Plaintiff”) applied to be a tenant at the Subject property. (Ibid.)

Solari requested and procured investigative consumer reports on Plaintiff without providing proper disclosures and obtaining proper authorizations contrary to the ICRAA. (Compl. ¶ 3.)

PROCEDURAL HISTORY 

On September 28, 2020, Plaintiff filed the Complaint asserting three causes of action:

1.    Violations of the ICRAA;

2.    Unfair Competition; and

3.    Declaratory Relief.

On October 15, 2020, Plaintiff filed a Doe Amendment naming The Screening Pros, LLC (“Screening Pros”) as Doe 1.

On November 2, 2020, Solari filed an Answer.

On January 29, 2021, Plaintiff filed a Doe Amendment naming CAC West, L.P. (“CAC West”) as Doe 2.

On April 6, 2021, Plaintiff filed a Doe Amendment naming Costar Group, Inc. (“Costar”) as Doe 3.

On April 29, 2021, Plaintiff dismissed Screening Pros.

On July 26, 2021, Plaintiff dismissed Costar.

On July 13, 2022, Plaintiff filed the instant Motion for Summary Adjudication.

On September 21, 2022, Solari filed an Opposition.

On September 28, 2022, Plaintiff 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 Sheila Gregory, et al. v. Solari Enterprises, Inc., et al., Los Angeles County Superior Court, Case No. 20STCV27865. (Ex. C.)

3.    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. 30-2019-01091978CU-BT-CJC. (Ex. D.)

4.    Request for Dismissal filed by Plaintiff in this action as to defendant The Screening Pros, LLC. (Ex. E.)

5.    Request for Dismissal filed by Plaintiff in this action as to defendant Costar Group, LLC. (Ex. F.)

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

II.             MOTION FOR SUMMARY ADJUDICATION

Plaintiff moves for Summary Adjudication of her 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

Plaintiff moves for Summary Adjudication of her 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, Plaintiff argues that Solari has already conceded violation of the ICRAA. Plaintiff notes that, in response to Plaintiff’s Requests for Admission, Solari admits that it failed to notify Plaintiff that an investigative consumer report would be made regarding her character, general reputation, personal characteristics, and mode of living (UMF 3); failed to provide Plaintiff with the name or address of the investigative consumer reporting agency that prepared the reports (UMF 4); failed to provide Plaintiff a summary of the provisions of Civil Code section 1786.22 (UMF 5); failed to certify to the investigative reporting agency, Screening Pros, that it made disclosures to Plaintiff required by Civil Code section 1786.16 (UMF 6); and failed to provide the required checkbox with regard to any of the reports. (UMF 10.)

Accordingly, Plaintiff has met her initial burden by 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 argues that ICRAA was intended to protect consumers from identity theft, and as Plaintiff does not allege to be a victim of identity theft, she does not have standing to recover statutory damages under ICRAA. Solari notes that the legislature passed ICRAA because “[t]he crime of identity theft in this new computer era has exploded to become the fastest growing white-collar crime in America…[t]he unique nature of this crime means it can often go undetected for years without the victim being aware his identity has been misused.” (Civ. Code § 1786(c)-(d).)

However, Solari omits discussion of subdivision f, which states:

It is the purpose of this title to require that investigative consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for . . . 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.

Here, the legislature directly states that the purpose of ICRAA is not just to provide remedy to victims of identity theft, but to ensure that investigative consumer reporting agencies adopt reasonable procedures to ensure that reporting is “fair and equitable to the consumer,” and that reports are confidential, accurate, relevant, and properly utilized. The statute then explicitly provides the measures these agencies must take to ensure that reporting is fair and equitable to the consumer. These are the measures that Solari violated in its treatment of Plaintiff’s housing application, thereby aggrieving Plaintiff under the statute.

Additionally, Solari cites to Starbucks Corp. v. Superior Court (2008) 168 Cal.App.4^th 1438. In Starbucks, the Court found that plaintiffs, who had never been convicted for marijuana related offenses, could not collect damages under a statute, which Starbucks violated, that forbade employers from inquiring about applicants’ marijuana related convictions.  

In so finding, the Court stated that it saw “nothing in the statute to support plaintiffs’ claim that the legislature intended to protect the privacy interests of job applicants who had no marijuana convictions in their background.” (Starbucks at p. 1449.)

Here, ICRAA explicitly requires “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 . . . .” As a consumer whose personal information was handled contrary to the statutorily delineated “reasonable procedures,” Plaintiff is an aggrieved person under ICRAA.

Accordingly, Plaintiff’s Motion for Summary Adjudication of the First Cause of Action for Violation of ICRAA is GRANTED.

B.  Statutory Damages

Next, Plaintiff argues that she should be entitled to the statutorily provided $10,000 in damages per report. In Opposition, Solari argues that, should the Court find that damages apply, Plaintiff should be entitled 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, Plaintiff is entitled to a single, $10,000 award under ICRAA.

C.  Offset

Finally, in Opposition, Solari argues that should the Court find Solari liable to Plaintiff, Plaintiff’s award should be offset by the settlement amount reached between Plaintiff and Defendants Screening Pros and Costar.

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 Screening Pros was the consumer investigative agency through which Solari requested Plaintiff’s background report, Solari’s damages should be offset by Screening Pros’ settlement amount.

On Reply, Plaintiff argues that, as the claims against Screening Pros were brought under Civil Code section 1786.16(a), whereas the claims against Solari are based on violations of 1787(a)(3) and (b)(1), offset does not apply.

However, offset is intended to apply broadly, such that 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. Here, though the claims against Screening Pros and Solari are brought under different subsections of the same statute, the two parties were clearly complicit in bringing about the same injury to Plaintiff’s right to a fair, equitable, and accurate investigative report.

Accordingly, Plaintiff is ordered to produce a copy of the Settlement and Release Agreement executed between Plaintiff and the settling parties. Plaintiff’s $10,000 statutory award under ICRAA is to be offset by any settlement damages paid by the settling defendants.

Based on the foregoing, Plaintiff’s motion for summary adjudication of her first cause of action is GRANTED. As a result, Plaintiff is awarded $10,000 in statutory damages, offset by the settlement amount between Plaintiff and the settling defendants.

Plaintiff is permitted to file a memorandum of cost and a noticed motion for attorney fees to recovery such costs pursuant to Civil Code § 1786.50(a)(2).  

DATED:  October 5, 2022

___________________________

Hon. Robert S. Draper 

Judge of the Superior Court