Judge: Shirley K. Watkins, Case: 22VECV01496, Date: 2023-01-24 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 22VECV01496    Hearing Date: January 24, 2023    Dept: T

            [TENTATIVE] ORDER:  Defendant Equity Residential Management, LLC’s  Demurrer to the Complaint is SUSTAINED WITH 30 DAYS LEAVE TO AMEND. 

Defendant Equity Residential Management, LLC’s Motion to Strike is MOOT.

All parties’ Requests for Judicial Notice are DENIED. 

1.     Introduction

Defendant Equity Residential Management, LLC (“Defendant”) demurs against the Complaint filed by Plaintiffs Soraya Viray and Rosemarie Gray (“Plaintiffs”).  The demurrer places into issue the second cause of action (“COA”) for invasion of privacy and third COA for declaratory relief.  Defendant argues the demurrer should be sustained on the ground that these COAs fail to state facts sufficient to constitute a cause of action.  Defendant also moves to strike paragraphs 6, 31, 32, 43, and 45 of the Complaint, and paragraphs 4, 8, 9, and 10 of the Prayer for Relief on the grounds that it is irrelevant, false, and/or improper. 

Plaintiffs request judicial notice of the Court’s ruling on a demurrer and motion to strike in a separate case (Dwight Evans et al. v. Equity Residential Management, LLC, case no. 22VECV01174.)

With the Defendant’s Replies in support of the Demurrer and Motion to Strike, Defendant requests judicial notice of the Court’s ruling on a demurrer and motion to strike in two separate cases, one of which is before this Department (Cary Singleton et al. v. Equity Residential Management, LLC, case no. 22VECV01307 and Kywane Thomas et al. v. Equity Residential Management, LLC, case no. 22STCV23730.) 

2.     Discussion

a.           Judicial Notice

Although the Court may take judicial notice of the existence of the orders, they have no binding effect on this Court or case, thus they are not relevant.  All parties’ requests for judicial notice are DENIED.

            b.         Motion to Strike

The motion to strike is MOOT as the court is sustaining the demurrer granting leave to amend.  However, if the demurrer is overruled on the court’s final decision, the tentative would be that: 

The Court GRANTS Defendant’s motion to strike Paragraphs 6 and 45 from Plaintiffs’ Complaint on the grounds that injunctive relief is not a remedy under the ICRAA because remedies are limited to damages and attorneys’ fees. (Cal Civ. Code §§ 1786.50(a)(1)-(2).) The Court GRANTS Defendant’s motion to strike Paragraphs 8 through 10 of from Plaintiffs’ Prayer for Relief on the ground that there is no basis stated in the Complaint for Plaintiffs’ requests for declaratory and injunctive relief. The Court GRANTS Defendant’s motion to strike Paragraphs 6, 36, and 48 of Plaintiffs’ Complaint and Paragraph 4 of the Prayer for Relief on the ground that Plaintiffs have not properly alleged oppression, fraud, or malice so as to warrant an award of punitive damages.  Plaintiffs’ allegations that Defendant’s “violations of the ICRAA was and is willful and grossly negligent” (Cal Civ. Code § 1786.50(b)) alone is insufficient because Plaintiffs’ statements are legal conclusions and are not supported by specific facts which show how they were willful and grossly negligent.

                        c.         Demurrer

As to the second COA for privacy, the Court finds that Plaintiffs fail to allege sufficient facts to establish a reasonable expectation of privacy in the investigative consumer reports about them.  The question is whether Plaintiffs can expect to have a reasonable expectation of privacy when they voluntarily completed applications that “included a release of information permitting the Defendants to get private and personal information from third parties about the Plaintiffs as required for all applications by the Property Owner.”  (Compl. ¶ 15.)  Plaintiffs attempt to argue that they have a reasonable expectation that investigative consumer reports will be obtained with proper compliance with the Investigative Consumer Reporting Agencies Act (“ICRAA”).  Although the act of obtaining investigative consumer reports without compliance with the ICRAA could ordinarily constitute a serious invasion of privacy, here, the Court finds that the second COA fails to state facts that there was a reasonable expectation that such reports will be obtained in compliance to ICRAA requirements, given the fact that Plaintiffs consented to a release of their information and knew that there would be investigative consumer reports concerning their personal information would be obtained.  Furthermore, Plaintiffs do not cite to any authority which provides that individuals have a reasonable expectation of privacy in investigative consumer reports about them and that there is a reasonable expectation they will be obtained in compliance with ICRAA if they signed consent forms, releasing their information.  Additionally, the Court finds that the allegation of Defendant’s failure to “provide a means by which the Plaintiffs could indicate that he or she wished to receive a copy of any report prepared in connection with the application” is insufficient to state a claim for a serious invasion of privacy because the allegations are devoid of facts which would rise to the level of an egregious breach of social norms, and as already stated, Plaintiffs consented to the release of their information.  Thus, the Court SUSTAINS Defendant’s demurrer as to the second cause of action with leave to amend.

As to the declaratory relief claim, the Court finds that Plaintiff fails to allege sufficient facts to maintain a cause of action.  “Where a trial court has concluded the plaintiff did not state sufficient facts to support a statutory claim and therefore sustained a demurrer as to that claim, a demurrer is also properly sustained as to a claim for declaratory relief which is ‘wholly derivative’ of the statutory claim.”  (Ball v. FleetBoston Financial Corp. (2008) 164 Cal.App.4th 794, 800 [Ball] citing Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 794.)  In Ball, a consumer brought a putative class action against the defendant bank for violation of Unfair Competition Law (UCL) relating to credit card arbitration provisions.  There, the plaintiff’s counsel acknowledged she lacked standing, moved for leave to file amended complaint alleging violation of Consumers Legal Remedies Act (CLRA) and requesting declaratory relief.  The court denied the motion, stating, “[a]s can be seen from the language of the proposed declaratory relief cause of action, quoted ante, it is wholly derivative of the proposed cause of action for violation of the CLRA. The only declaration sought by the cause of action is a judicial declaration that the arbitration provisions of the credit card agreement are illegal and unconscionable, and violate public policy. The CLRA cause of action requests that the enforcement of the arbitration provisions of the credit card agreement be enjoined, because they are unlawful and/or unconscionable.”  (Id.)

Like in Ball, where the court found the declaratory relief claim was wholly derivative of the CLRA cause of action, here, the Court finds that allegations in Plaintiffs’ declaratory relief are also wholly derivative of the privacy cause of action because Plaintiffs request a judicial determination that Defendant violated provisions of the ICRAA, and thus invaded Plaintiffs’ privacy.  The Court already determined that Plaintiffs fail to state a cause of action for invasion of privacy.  Accordingly, the Court SUSTAINS Defendant’s demurrer as to the third cause of action with leave to amend.

            IT IS SO ORDERED, DEFENDANT TO GIVE NOTICE.