Judge: Theresa M. Traber, Case: 23STCV28294, Date: 2024-05-22 Tentative Ruling
Case Number: 23STCV28294 Hearing Date: May 22, 2024 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: May 22, 2024, TRIAL
DATE: NOT SET
CASE: Deliana Glover, et al. v. Onni
Management California, Inc., et al.
CASE NO.: 23STCV28294 
DEMURRER
TO COMPLAINT, MOTION TO STRIKE PORTIONS OF COMPLAINT
MOVING PARTY: Defendants Onni Management, California, Inc., and Onni
Real Estate IX, LLC
RESPONDING PARTY(S): Plaintiffs
Delianna Glover, et al. (16 Plaintiffs)
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
Filed on November 17, 2023, this is an action for violation of the Investigative
Consumer Reporting Agencies, Act, invasion of privacy, and declaratory relief. Plaintiffs
contend that Defendants refused to provide investigative consumer reports
prepared in connection with Plaintiffs’ rental applications.
Defendants demur to the second
cause of action for invasion of privacy and third cause of action for
declaratory relief. Defendants also move to strike portions of the Complaint as
improper.
TENTATIVE RULING:
Defendants’
Demurrer to the Complaint is SUSTAINED as to the second cause of action, with
leave to amend, and otherwise OVERRULED.
Defendants’
Motion to Strike is GRANTED without leave to amend as to paragraph 54 and with
leave to amend as to paragraphs 5, 39, 51, and prayer for relief as pertaining to punitive damages, and
otherwise DENIED.
Plaintiffs
shall have 30 days leave to amend the Complaint from the date of this order.
DISCUSSION:
Demurrer to Complaint
Defendants
demur to the second cause of action for invasion of privacy and third cause of
action for declaratory relief.
Legal Standard
A demurrer tests whether the
complaint states a cause of action. (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations
liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and
Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the
defects must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) “A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters. Therefore, it lies only where the defects appear on the face
of the pleading or are judicially noticed.” (SKF Farms v. Superior Court
(1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing
is whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The
ultimate facts alleged in the complaint must be deemed true, as well as all
facts that may be implied or inferred from those expressly alleged. (Marshall
v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields
v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n
demurrer, pleadings are read liberally and allegations contained therein are
assumed to be true”].) “This rule of liberal construction means that the
reviewing court draws inferences favorable to the plaintiff, not the
defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th
1228, 1238.)
Meet and Confer
Before filing a demurrer, the
demurring party shall meet and confer in person or by telephone with the party
who has filed the pleading subject to the demurrer and file a declaration
detailing their meet-and-confer efforts. (Code Civ. Proc., § 430.41(a).)
However, an insufficient meet-and-confer process is not grounds
to overrule or sustain a demurrer. (Code Civ. Proc., §
430.41(a)(4).)
The Declaration of Ava Claypool
accompanying the Demurrer states that counsel for the parties met and conferred
via email on December 19, 2023 and via telephone on December 29, 2023, but were
unable to reach a resolution to this dispute. (Declaration of Ava Claypool ISO
Demurrer ¶¶ 3-4.) Defendants have therefore satisfied their statutory meet-and-confer
obligations.
Second Cause of Action: Invasion of Privacy
Defendants
demur to the second cause of action for invasion of privacy for failure to
state facts sufficient to constitute a cause of action.
The
elements of an invasion of privacy claim are: (1) intrusion into a
private place, conversation or matter, (2) in a manner highly offensive to a
reasonable person. (Taus v. Loftus (2007) 40 Cal.4th 683, 724-25.) “[T]he tort includes not only highly
offensive intentional intrusions into another person’s private place or
conversation but also highly offensive intentional intrusions upon another
person’s private affairs or concerns. … “To prove actionable intrusion [, upon
another person’s private affairs or concerns], the plaintiff must show the
defendant penetrated some zone of physical or sensory privacy surrounding, or
obtained unwanted access to data about, the plaintiff. The tort is proven only
if the plaintiff had an objectively reasonable expectation of seclusion or
solitude in the place, conversation or data source.” (Id. [citing
Restatement (Second) of Torts § 652B (1979)].) Where a defendant obtains
unwanted access to the plaintiff’s private information, plaintiff must also
allege that the use of that information is also highly offensive. (Fogelstrom
v. Lamps Plus, Inc. (2011) 195 Cal.App.4th 986, 993.)
Defendants
argue that Plaintiffs’ claim for invasion of privacy is deficient because
Plaintiffs do not allege a reasonable expectation of privacy or an invasion
that is highly offensive to a reasonable person. With respect to the first
contention, Defendants argue that Plaintiffs consented to the release of their
private information to prepare investigative consumer reports. (Complaint ¶
29.) As Defendants state, where a plaintiff voluntarily consents to the
defendant’s invasive actions, the defendant’s conduct “will rarely be deemed
‘highly offensive to a reasonable person’ so as to justify tort liability.” (Sheehan
v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 1000 [quoting Hill
v. Nat’l Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 26].) In response, Plaintiffs assert that they had
a reasonable expectation that such reports would not be obtained without
compliance with the ICRAA. In so arguing, Plaintiffs rely on Civil Code section
1786.52, which merely states that nothing in the act “shall in any way affect
the right of any consumer to maintain an action against . . . a user of an
investigative consumer report, or an informant for invasion of privacy or
defamation.” (Civ. Code § 1786.52.) As Defendants argue in reply, however, this
section merely states that the ICRAA does not supersede or eliminate an
invasion of privacy claim. The burden remains on Plaintiff to plead facts which
establish a reasonable expectation of privacy under the circumstances.
Here, the conclusory allegations of
the second cause of action do not meet that burden. The second cause of action
is wholly derivative of the first cause of action, which merely alleges that
Defendants violated ICRAA by refusing to provide copies of the investigative
consumer reports to the Plaintiffs. (Complaint ¶¶ 37-38; 54-60.) Moreover, as
Defendants also argue, the Complaint merely alleges that Defendants obtained
Plaintiff’s private information without alleging whether Defendants used that
information in a highly offensive matter. The Court is therefore not persuaded
that the second cause of action pleads sufficient facts to state a claim.
Accordingly, Defendants’ Demurrer
to the Second Cause of Action is SUSTAINED.
//
Third Cause of Action: Declaratory Relief
Defendants
also demur to the third cause of action for declaratory relief for failure to
state facts sufficient to constitute a cause of action.
To state a
claim for declaratory relief, a party must allege (1) a proper subject for declaratory
relief, and (2) an actual controversy involving justiciable questions relating
to the party’s rights or obligations. (Jolley v. Chase Home Finance, LLC
(2013) 213 Cal.App.4th 872, 909.)
Defendants
contend that Plaintiffs’ third cause of action is deficient because they do not
allege an actual controversy. The third cause of action alleges that Defendant
requires all leases to be renewed or re-certified, and “because the same forms
are always used, which authorizes the Defendants to obtain investigative
consumer reports about the Plaintiffs, a judicial determination is necessary to
prevent the Defendants’ continued violations of the ICRAA.” (Complaint ¶ 62.) Defendants
contend that this is illogical because the violations alleged arose in the
application process, which is not part of the renewal process. However, this
assertion is contradicted by paragraph 62 of the Complaint, as cited by
Defendants, which must be taken as true for the purposes of a demurrer. Since
Plaintiffs allege that the same paperwork and release of information is
included in the renewal and recertification process, Plaintiffs claim that the
violation is ongoing with each lease renewal. Defendants’ assertion that they
do not require Plaintiffs to submit applications to renew their lease is immaterial,
as that contention is not supported by the allegations in the Complaint. Defendants
have thus failed to demonstrate that the declaratory relief claim is deficient.
Accordingly,
Defendants’ demurrer to the third cause of action is OVERRULED.
Leave to Amend
When a demurrer is sustained, the
Court determines whether there is a reasonable possibility that the defect can
be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311,
318). When a plaintiff “has pleaded the general set of facts upon
which his cause of action is based,” the court should give the plaintiff an
opportunity to amend his complaint, since plaintiff should not “be deprived of his
right to maintain his action on the ground that his pleadings were defective
for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892,
900.) Accordingly, California law imposes the burden on the plaintiffs to
demonstrate the manner in which they can amend their pleadings to state their
claims against a defendant. (Goodman v. Kennedy (1976) 18
Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion
unless the complaint shows on its face it is incapable of amendment.
[Citation.] Liberality in permitting amendment is the rule, if a fair
opportunity to correct any defect has not been given." (Angie M. v.
Superior Court (1995) 37 Cal.App.4th 1217, 1227.)
Here,
Plaintiffs have not shown how the second cause of action might be amended to
cure the deficiencies identified by Defendants. However, as the Complaint has
never been amended and the failure of the second cause of action is premised on
a paucity of detail, the Court will exercise its discretion to grant leave to
amend that cause of action.
Conclusion
Accordingly,
Defendants’ Demurrer to the Complaint is SUSTAINED with leave to amend as to
the second cause of action and otherwise OVERRULED.
Motion to Strike Portions of Complaint
Defendants
move to strike portions of the Complaint pertaining to injunctive relief and
punitive damages as improper.
Legal Standard
The court may, upon a motion, or at
any time in its discretion, and upon terms it deems proper, strike any
irrelevant, false, or improper matter inserted in any pleading. Code Civ.
Proc., § 436(a). The court may also strike all or any part of any pleading not
drawn or filed in conformity with the laws of this state, a court rule, or an
order of the court. Id., § 436(b). The grounds for a motion to strike
are that the pleading has irrelevant, false or improper matter, or has not been
drawn or filed in conformity with laws. Id.§ 436. The grounds for moving to
strike must appear on the face of the pleading or by way of judicial notice. Id.§
437. “When the defect which justifies striking a complaint is capable of cure,
the court should allow leave to amend.” Vaccaro v. Kaiman (1998)
63 Cal.App.4th 761, 768. A motion to
strike can be used where the complaint or other pleading has not been drawn or
filed in conformity with applicable rules or court orders. Code Civ.
Proc., § 436(b). This provision is for "the striking of a pleading due to
improprieties in its form or in the procedures pursuant to which it
was filed." Ferraro v. Camarlinghi (2008) 161
Cal.App.4th 509, 528 (emphasis in original).
Meet and Confer
Before filing a motion to strike, the moving
party shall meet and confer in person or by telephone with the party who has
filed the pleading subject to the motion to strike and file a declaration
detailing their meet-and-confer efforts. (Code Civ. Proc., § 435.5(a).)
However, an insufficient meet-and-confer process is not grounds to grant or
deny a motion to strike. (Code Civ. Proc., § 435.5(a)(4).)
The Declaration of Ava Claypool
accompanying the Motion states that counsel for the parties met and conferred
via email on December 19, 2023 and via telephone on December 29, 2023, but were
unable to reach a resolution to this dispute. (Declaration of Ava Claypool ISO
Mot. ¶¶ 3-4.) Defendants have therefore satisfied their statutory meet-and-confer
obligations.
//
Injunctive Relief Under First Cause of Action
Defendants
move to strike paragraph 53 of the Complaint as improper. Paragraph 53 seeks
injunctive relief in connection with the first cause of action for violation of
the Investigative Consumer Reporting Agency Act. The ICRAA expressly provides
only for money damages and attorney’s fees as appropriate remedies under the
Act. (Civ. Code § 1786.50.) Plaintiffs assert that they may seek injunctive
relief under this claim because they also request money damages. Although
Plaintiffs cite Southern Christian Leadership Conference v. Al Malaikah
Auditorium Co. in support of their argument, the portion of that opinion
cited merely stands for the general principle that a party may seek a
preliminary injunction before injury occurs. (Southern Christian Leadership
Conference v. Al Malaikah Auditorium Co. (1991) 230 Cal.App.3d 207, 224.)
That opinion, and the cases upon which it relies, does not stand for the
position that a party may pursue injunctive relief in addition to money damages
when the authorizing law does not so state. The Court therefore concurs with
Defendants that paragraph 53 is improper and should be stricken.
Injunctive Relief Under Third Cause of Action
Defendants
also move to strike paragraphs 1, 5, 39, and 51 and prayers 8 through 10
pertaining to injunctive relief as improper in the absence of the third cause
of action for declaratory relief. As the Court rejected the challenge to this
cause of action in the Demurrer accompanying this motion, the Court likewise
rejects Defendants’ contentions as to these portions of the Complaint.
Punitive Damages
Defendants
also move to strike the requests for punitive damages as set forth in
paragraphs 5, 39, and 51 of the Complaint and paragraph 4 of the prayer for
relief as insufficiently pled.
Civil Code section 3294
subdivision (a) provides:
In an action for the breach
of an obligation not arising from contract, where it is proven by clear and
convincing evidence that the defendant has been guilty of oppression, fraud, or
malice, the plaintiff, in addition to the actual damages, may recover damages
for the sake of example and by way of punishing the defendant.”
(Civ. Code § 3294(a).)
Subdivision (b) defines liability for an employer
for the malicious, fraudulent, or oppressive conduct of its employees:
An employer shall not be
liable for damages pursuant to subdivision (a), based upon acts of an employee
of the employer, unless the employer had advance knowledge of the unfitness of
the employee and employed him or her with a conscious disregard of the rights
or safety of others or authorized or ratified the wrongful conduct for which
the damages are awarded or was personally guilty of oppression, fraud, or
malice. With respect to a corporate employer, the advance knowledge and
conscious disregard, authorization, ratification or act of oppression, fraud,
or malice must be on the part of an officer, director, or managing agent of the
corporation.
(Civ.
Code § 3294(b).) Further, in the context of claims under the ICRAA, punitive
damages may be assessed only if the Court determines that the violation was
grossly negligent or willful. (Civ. Code § 1786.50.)
Defendants contend that the
allegations of the Complaint do not suffice to allege punitive damages because
there is insufficient detail to demonstrate a willful or grossly negligent
violation of the act and because Plaintiffs do not allege sufficient facts
regarding employer ratification. The Court disagrees with Defendants’
interpretation. The Complaint plainly alleges that Defendants did not provide a
means by which the Plaintiffs could request a copy of any investigative
consumer report and did not agree to provide copies of those reports.
(Complaint ¶¶ 37-38.) Construed in the light most favorably to Plaintiffs, this
is a straightforward allegation of willful conduct. The Court agrees, however,
that the Complaint offers no allegations of advance knowledge and conscious
disregard, authorization, or ratification by a corporate officer, director, or
managing agent. Plaintiffs fail to address this deficiency in their opposition
and thus concede that punitive damages are not properly alleged against these
Defendants.
The Court therefore finds that the
allegations pertaining to punitive damages must be stricken for failure to
allege corporate advance knowledge and conscious disregard, authorization, or
ratification by a corporate officer, director, or managing agent. As these
allegations are deficient solely for lack of detail, the Court will exercise
its discretion to grant leave to amend a proper basis for punitive damages.
Conclusion
Accordingly, Defendants’ Motion to
Strike is GRANTED without leave to amend as to paragraph 54 and with leave to
amend as to paragraphs 5, 39, 51, and prayer for relief 4 as pertaining to
punitive damages, and otherwise DENIED.
CONCLUSION:
Accordingly, Defendants’
Demurrer to the Complaint is SUSTAINED with leave to amend as to the second
cause of action and otherwise OVERRULED.
Defendants’
Motion to Strike is GRANTED without leave to amend as to paragraph 54 and with
leave to amend as to paragraphs 5, 39, 51, and prayer for relief 4 as
pertaining to punitive damages, and otherwise DENIED.
Plaintiffs
shall have 30 days leave to amend the Complaint from the date of this order.
Moving
Parties to give notice.
IT IS SO ORDERED.
Dated: May 22, 2024 ___________________________________
Theresa
M. Traber
Judge
of the Superior Court
Any party may submit on the
tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day
before the hearing. All interested parties must be copied on the email. It
should be noted that if you submit on a tentative ruling the court will still
conduct a hearing if any party appears. By submitting on the tentative you
have, in essence, waived your right to be present at the hearing, and you
should be aware that the court may not adopt the tentative, and may issue an
order which modifies the tentative ruling in whole or in part.