Judge Teresa A. Beaudet, Case Number: 23STCV31568, Date: 2024-03-22 Tentative Ruling

Plaintiffs Ashley Carrell, Angelica Herrador, Anthony Estrada, Rachel Bird, Felix Alonzo, Krista Parry, Anita Thompson, James Egan, Myranda Sanchez, Selina Nunez, and Hugo Hernandez (collectively, “Plaintiffs”)[1] filed this action on December 27, 2023 against Defendant Reliant Real Estate Management, Inc. (“Defendant”). The Complaint alleges causes of action for (1) violations of the Investigative Consumer Reporting Agencies Act (“ICRAA”), (2) invasion of privacy, and (3) declaratory relief.

Defendant now demurs to the second cause of action of the Complaint. Plaintiffs oppose.

In the Complaint, Plaintiffs allege that “[i]n 2022 and 2023…Plaintiffs applied for housing at the Paradise Garden Apartments, Charter Oaks Apartments, Vues on Gordon Apartments, Goldwyn Apartments, Whiffle Tree Apartments, Arbor Ranch Apartments, Lincoln Village Apartments and the Mediterra Apartments. Plaintiffs completed a mandatory multi-page ‘Application,’ which included a release of information permitting the Defendants to get private and personal information from third parties about the Plaintiffs.” (Compl., ¶ 23.)

Plaintiffs allege that “Defendants then requested and obtained investigative consumer reports about the Plaintiffs during the processing of the Plaintiffs’ application for an apartment home at the Paradise Garden Apartments, Charter Oaks Apartments, Vues on Gordon Apartments, Goldwyn Apartments, Whiffle Tree Apartments, Arbor Ranch Apartments, Lincoln Village Apartments and the Mediterra Apartments without complying with the mandatory requirements, disclosures and authorizations required under the ICRAA statute.” (Compl., ¶ 24.)

In the second cause of action for invasion of privacy, Plaintiffs allege that “[t]he conduct of Defendants in requesting, preparing, furnishing, and receiving reports on Plaintiffs’ character, general reputation, personal characteristics, or mode of living, in contrivance of the protections enshrined in the ICRAA, constituted a serious invasion of Plaintiffs’ privacy.” (Compl., ¶ 49.) Plaintiffs allege that “[b]y acting and failing to act as herein alleged, the Defendants have violated the ICRAA and invaded the Plaintiffs’ rights of privacy by obtaining investigative consumer reports about the Plaintiffs without complying with mandatory requirements under the ICAA for getting investigative reports about the Plaintiffs.” (Compl., ¶ 51.)

In the demurrer, Defendant argues, inter alia, that “since Plaintiffs authorized Defendant to conduct a thorough background check by signing and consenting to the terms of the ‘Release of Information’ form, Plaintiffs could not have reasonably expected background information that may be disclosed under the ICRAA to be kept from Defendant...” (Demurrer at p. 6:19-22.) As set forth above, Plaintiffs allege that “Plaintiffs applied for housing at the Paradise Garden Apartments, Charter Oaks Apartments, Vues on Gordon Apartments, Goldwyn Apartments, Whiffle Tree Apartments, Arbor Ranch Apartments, Lincoln Village Apartments and the Mediterra Apartments. Plaintiffs completed a mandatory multi-page ‘Application,’ which included a release of information permitting the Defendants to get private and personal information from third parties about the Plaintiffs.” (Compl., ¶ 23.) Plaintiffs allege that they “completed the required ‘Application’ that included a consent to ‘Release of Information’ and submitted it to Defendant Reliant Real Estate Management, Inc.” (Compl., ¶ 26.)

In the opposition, Plaintiffs assert that they sufficiently alleged that they had reasonable expectations of privacy under the circumstances. Plaintiffs point to the allegations that “Plaintiffs had a reasonable expectation that Defendants would not solicit or receive information concerning their character, general reputation, personal characteristics, or mode of living, unless Defendant Reliant Real Estate Management, Inc. complied with all governing laws,” and that “[a]t all times Plaintiffs had a reasonable expectation that they would be protected by the laws governing dissemination of information of a private nature concerning their character, general reputation, personal characteristics, or mode of living.” (Compl., ¶¶ 47, 48.) Plaintiffs also point to the allegation that “Defendants kept Plaintiffs’ private information private from Plaintiffs, violating the ICRAA and Plaintiffs’ reasonable expectations.” (Compl., ¶ 52.)

Plaintiffs also assert that “[Defendant] argues that Plaintiffs gave voluntary consent, but the consent [Defendant] secured was through conduct contrary not only to ‘customs’ and ‘habits,’ but to express statutory law.” (Opp’n at p. 4:22-25.) Plaintiffs cite to TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 450, where the Court of Appeal noted that “[t]he ‘community norms’ aspect of the ‘reasonable expectation’ element of an invasion of privacy claim is this:…‘The protection afforded to the plaintiff’s interest in his privacy must be relative to the customs of the time and place, to the occupation of the plaintiff and to the habits of his neighbors and fellow citizens.’…” Plaintiffs also cite to Civil Code section 1786.16 and allege in the Complaint that this statute was violated. (Compl., ¶¶ 39-40.)

But such argument admits that Plaintiffs’ “consent [was] secured.” (Opp’n at p. 4:23.) In the reply, Defendant cites to Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 9, where the California Supreme Court found that “the NCAA’s drug testing program does not violate plaintiffs’ state constitutional right to privacy.” The Hill Court noted, inter alia, that “[t]he student athlete’s reasonable expectation of privacy is further diminished by two elements of the NCAA’s drug testing program--advance notice and the opportunity to consent to testing. A drug test does not come as a unwelcome surprise at the end of a postseason match. Full disclosure of the NCAA’s banned substances rules and testing procedures is made at the beginning of the athletic season, long before the postseason competition during which drug testing may take place. Following disclosure, the informed written consent of each student athlete is obtained. Thus, athletes have complete information regarding the NCAA’s drug testing program and are afforded the opportunity to consent or refuse before they may be selected for testing.” ((Id. at p. 42.) As discussed, here, Plaintiffs allege that they “completed a mandatory multi-page ‘Application,’ which included a release of information permitting the Defendants to get private and personal information from third parties about the Plaintiffs.” (Compl., ¶ 23.)

In the opposition, Plaintiffs also contend, without citing to supporting legal authority, that “[t]he voluntariness of consent is dubious when the party of authority within a power dynamic (i.e. landlord) extracts that consent from the other party (i.e. tenant) under the guise that everything is on the level – though it is not.” (Opp’n at p. 4:25-27.) The Court notes that it is unclear what Plaintiffs mean by “on the level.” (Opp’n at p. 4:27.) Moreover, Plaintiffs do not point to any allegations in the FAC stating that they did not voluntarily consent to a release of their information.

As discussed, Plaintiffs allege that they “applied for housing at the Paradise Garden Apartments, Charter Oaks Apartments, Vues on Gordon Apartments, Goldwyn Apartments, Whiffle Tree Apartments, Arbor Ranch Apartments, Lincoln Village Apartments and the Mediterra Apartments. Plaintiffs completed a mandatory multi-page ‘Application,’ which included a release of information permitting the Defendants to get private and personal information from third parties about the Plaintiffs.” (Compl., ¶ 23.) Plaintiffs further allege that “Plaintiffs completed the required ‘Application’ that included a consent to ‘Release of Information’ and submitted it to Defendant Reliant Real Estate Management, Inc.” (Compl., ¶ 26.) The Court agrees with Defendant that in light of these allegations, Plaintiffs do not allege “a reasonable expectation of privacy under the circumstances.” ((International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court, supra, 42 Cal.4th at p. 338.)

Based on the foregoing, the Court sustains Defendant’s demurrer to the second cause of action.

For the foregoing reasons, the Court sustains Defendant’s demurrer to the second cause of action of the Complaint, with leave to amend.

The Court orders the remaining plaintiffs to file and serve an amended complaint, if any, within 20 days of the date of this Order. If no amended complaint is filed within 20 days of this Order, Defendant is ordered to file and serve its answer within 30 days of the date of this Order.¿¿

[1]On March 13, 2024, Plaintiffs filed a request for dismissal of Ashley Carrell, Angelica Herrador, Anthony Estrada, Rachel Bird, Felix Alonzo, and Krista Parry. Dismissal was entered on March 13, 2024.

Superior Court of California

County of Los Angeles

Department 50