everest campus california inc s notice of demurrer and demurrer to plCal. Super. - 1st Dist.August 6, 2021 21878.1 1 DECLARATION OF ADAM AINSLIE ISO DEMURRER AND MTN TO STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1100 El Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 Brian K. Stewart, Esq. (State Bar No. 126412) Adam A. Ainslie, Esq. (State Bar No. 311427) COLLINS COLLINS MUIR + STEWART LLP 1100 El Centro Street South Pasadena, CA 91030 (626) 243-1100 - FAX (626) 243-1111 Attorneys for Defendant, EVEREST CAMPUS CALIFORNIA, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO RICHARD BURTON, an individual; ANDREW CLIFTON, an individual; KAITLIN KIRKPATRICK, an individual; and KIMBERLY KIRKPATRICK, an individual, Plaintiffs, vs. EVEREST CAMPUS CALIFORNIA, INC., a Delaware corporation; and DOES 1-20 inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. CGC19580946 [Assigned to Judge Garret Wong, Room 610] EVEREST CAMPUS CALIFORNIA, INC.’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT [Filed concurrently with Notice of Demurrer and Demurrer; Notice of Motion and Motion to Strike; and Request for Judicial Notice] DATE: September 22, 2020 TIME: 9:30 a.m. DEPT.: 302 Complaint Filed: 11/21/19 Remand Received: 07/27/20 Trial Date: None / / / / / / / / / / / / / / / ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 08/26/2020 Clerk of the Court BY: EDNALEEN ALEGRE Deputy Clerk 21878.1 2 DECLARATION OF ADAM AINSLIE ISO DEMURRER AND MTN TO STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1100 El Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 DECLARATION OF ADAM A. AINSLIE I, Adam A. Ainslie, declare as follows: 1. I am an attorney duly admitted to practice before all courts of the State of California. My law firm, Collins Collins Muir + Stewart LLP, is counsel of record for Defendant EVEREST CAMPUS CALIFORNIA, INC. in this action. The following facts are within my personal knowledge and, if called as a witness herein, I can and will competently testify thereto. This declaration is being submitted in support of Everest Campus’ demurrer, motion to strike and request for judicial notice. 2. Attached hereto as Exhibit A is a true and correct copy of Plaintiffs’ First Amended Complaint. 3. Attached hereto as Exhibit B is a true and correct copy of Plaintiffs’ original Complaint. 4. After the removal of this matter from this Court to the Northern District of California by former defendant RealPage, Inc., I filed a motion to dismiss under Federal Rule of Civil procedure 12(b)(6). RealPage also filed a similar motion to dismiss. At the time Everest Campus was being erroneously sued as Peak Campus, a separate legal entity that is part of the same family of companies. In order to cure the pleading issue, the parties entered a stipulation that all actions done on behalf of Peak Campus, including discovery and the motion to dismiss, would be deemed to have been done on behalf of Everest Campus. Attached hereto as Exhibit C is a true and correct copy of that stipulation. 5. The arguments Everest Campus made in the motion to dismiss are similar to the arguments being made before this Court in the demurrer and motion to strike. As a result, counsel for Plaintiffs agreed that the “meet and confer’ requirement had been satisfied. 6. On February 5, 2020, Plaintiffs filed their opposition to Everest Campus’ motion to dismiss. Attached hereto as Exhibit D is a true and correct copy of Plaintiffs’ opposition. 7. The federal court heard argument on March 5, 2020. The matter was taken under submission and on July 21, 2020, the federal court issued an order remanding the case back to state court. Attached hereto as Exhibit E is a true and correct copy of the order remanding the case. 8. While the decision on the motion to dismiss was pending, the parties engaged in 21878.1 3 DECLARATION OF ADAM AINSLIE ISO DEMURRER AND MTN TO STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1100 El Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 written discovery. I sent requests for admissions (set one) to each Plaintiff. On May 4, 2020, Plaintiffs served their verified responses. Attached hereto as Exhibit F are true and correct copies of Plaintiffs’ verified responses to request for admissions (set one). 9. Attached hereto as Exhibit G is a true and correct copy of Plaintiffs’ First Amended Complaint with strikethrough annotations based on Everest Campus motion to strike. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 26th day of August, 2020, in South Pasadena, California. ________________________________ EXHIBIT A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST AMENDED COMPLAINT Joseph B. Ollinger (SBN: 285641) Law Office of Joseph B. Ollinger PC 3348 Griffith Park Blvd. #22 Los Angeles, California 90027 Telephone: (310) 424-0097 Email: josephollinger@gmail.com Attorney for Plaintiffs RICHARD BURTON, ANDREW CLIFTON, KYLE LOUEY, KAITLIN KIRKPATRICK, and KIMBERLY KIRKPATRICK SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO RICHARD BURTON, an individual; ANDREW CLIFTON, an individual; KAITLIN KIRKPATRICK, an individual; and KIMBERLY KIRKPATRICK, an individual, Plaintiffs, v. EVEREST CAMPUS CALIFORNIA, INC., a Delaware corporation; and DOES 1-20 inclusive, Defendants. Case No.: CGC-19-580946 FIRST AMENDED COMPLAINT FOR DAMAGES 1. ICRAA - Cal. Civ. Code §§ 1786 - 1786.60 2. Unfair Business Practices - Cal. Bus. & Profs. Code §§ 17200, et. seq. 3. Negligence Per Se DEMAND FOR JURY TRIAL COMPLAINT FOR DAMAGES Plaintiffs RICHARD BURTON (“Burton”), ANDREW CLIFTON (“Clifton”), KAITLIN KIRKPATRICK (“Kaitlin”), and KIMBERLY KIRKPATRICK (“Kimberly”) complain and allege as follows: THE PARTIES 1. Plaintiff Richard Burton is an individual residing in the State of California, and was a prospective tenant at the building known as The Post On Nord (“the Building” or “Post on Nord”), located at 1200 Nord Avenue, Chico, California 95926. Plaintiff Richard Burton is currently a tenant in the Building. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 FIRST AMENDED COMPLAINT 2. Plaintiff Andrew Clifton is an individual residing in the State of California, and was a prospective tenant at the Building. Plaintiff Andrew Clifton is currently a tenant in the Building. 3. Plaintiff Kaitlin Kirkpatrick is an individual residing in the State of California, and was a prospective tenant at the Building. Plaintiff Kaitlin Kirkpatrick is currently a tenant in the Building. 4. Plaintiff Kimberly Kirkpatrick is an individual residing in the State of California, and was a prospective guarantor for an apartment at the Building. Plaintiff Kimberly Kirkpatrick is currently a guarantor on Plaintiff Kaitlin Kirkpatrick’s lease. 5. Plaintiff Kyle Louey is an individual residing in the State of California, and was a prospective tenant at the Building. Plaintiff Kyle Louey is currently a tenant in the Building. 6. Defendant EVEREST CAMPUS CALIFORNIA, INC. (“Defendant” or “Everest”) was and is a Delaware corporation with its principle place of business at 2970 Clairmont Road, Suite #310, Atlanta, Georgia 30329. At all times relevant herein, Defendant Everest was the manager of the Building and held itself out as such. 7. Defendant Everest was and is a real estate developer, property owner, property management company, and lessor of a large number of housing units across California. 8. The Everest/Peak Campus group of companies manages and leases out over twelve thousand (12,000) housing units to over forty-eight thousand (47,000) tenants in over sixty-five (65) large, multi-unit buildings across the United States. 9. Plaintiffs are unaware of the true names of Defendants Does 1 through 20. Said Defendants are sued by said fictitious names. The pleadings will be amended as necessary to obtain relief against Defendants Does 1 through 20 when the true names and capacities are ascertained or when such facts pertaining to their liability are ascertained, or as permitted by law or by the Court. They include all parent companies of, subsidiaries of, and companies owned by the named Defendants. They may also include the other owners and other managers of the Building, any third-party reporting entities which provided covered reports, and any agents, subsidiaries, affiliates, and parent companies thereof. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 FIRST AMENDED COMPLAINT 10. Below, “Defendants” means Defendant Everest and the fictitiously named Defendants, each and all of them. Hereinafter in the Complaint, unless otherwise specified, reference to a Defendant shall refer to all Defendants, inclusive, and each of them. 11. None of the Defendants reside in the state of California, and as such the action may be tried in the superior court in any county in California, per California Code of Civil Procedure Section 395. 12. Unless otherwise specified, the allegations in this Complaint pertain to the entire periods of time covered by the relevant statutes of limitations of the causes of action in which the allegations appear. 13. The allegations in this Complaint are made without any admission that, as to any particular allegation, Plaintiffs or any of them bear the burden of pleading, proof, or persuasion. All rights to plead in the alternative are reserved. COMMON ALLEGATIONS 14. In early 2019, Plaintiffs inquired with Defendant Everest about renting in the Building. 15. Defendant Everest directed Plaintiffs to complete an application. The application indicated that Defendant Everest would procure certain information on applicants’ character, general reputation, personal characteristics, and/or mode of living, including information involving payment history, rental history, personal history, and criminal history. It also stated that Defendant Everest would procure the same information on applicants’ guarantors. The application purported to include an authorization for Defendants to obtain this information. 16. Plaintiffs are informed and believe and on that basis allege that the information identified (albeit vaguely) is of the type commonly verified by Investigative Consumer Reports conveying information regarding an individual’s character, general reputation, personal characteristics, and/or mode of living. 17. Plaintiffs each completed the application and submitted it. 18. Defendant Everest demanded the payment of a fee in connection with the application. Plaintiffs each paid the fee, and Defendant Everest accepted the payment. 19. Defendant Everest and DOE Defendants processed each Plaintiff’s application. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 FIRST AMENDED COMPLAINT 20. Defendant Everest procured and used a number of investigative consumer reports about each Plaintiff. 21. Defendant Everest and DOE Defendants granted Plaintiffs Andrew Clifton and Kaitlin Kirkpatrick an apartment within the Building known as The Post on Nord. 22. Defendant Everest and DOE Defendants approved Plaintiff Kimberly Kirkpatrick as guarantor on Plaintiff Kaitlin Kirkpatrick’s lease. 23. Defendant Everest and DOE Defendants granted Plaintiff Richard Burton an apartment within the Building known as The Post on Nord. 24. Defendants intentionally concealed from Plaintiffs the nature and type of the investigative consumer reports they would procure from Plaintiffs and the date the reports would be procured. 25. Defendants did not provide a means by which any Plaintiff could indicate that he or she wished to receive a copy of any report prepared in connection with the application. Defendants did not provide a consent form or disclosure with a box to check. 26. Defendants did not make the required certifications to the entities or individuals providing the reports, as discussed below. 27. Defendants did not agree to provide a copy of any of the reports prepared about any Plaintiff. 28. Defendants did not notify any Plaintiff in writing that an investigative consumer report would be made regarding his or her character, general reputation, personal characteristics, and/or mode of living. Defendants did not notify any Plaintiff in writing of any of the investigative consumer reports made about any Plaintiff. 29. Defendants did not notify any Plaintiff of the name or address of the investigative consumer reporting agency that would prepare any report about him or her. Plaintiffs are informed and believe and on that basis allege that Defendants did not notify any Plaintiff of this information within three days after the date on which the report was first requested. 30. Defendants did not provide a summary of the provisions of Civil Code Section 1786.22 to any Plaintiff. 31. Defendants did not provide copies of any of the reports obtained about any Plaintiff. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 FIRST AMENDED COMPLAINT 32. Prior to requesting or procuring the Investigative Consumer Reports about each Plaintiff, Defendant Everest was aware of the Investigative Consumer Reporting Agencies Act. 33. Prior to requesting or procuring the Investigative Consumer Reports about each Plaintiff, Defendant Everest had been informed in writing about the Investigative Consumer Reporting Agencies Act, and was informed in writing that the subject of a background check has the “right to receive all disclosures, as provided in CA Civil Code Section 1786.26.” 34. In spite of being on notice that its conduct was unlawful, Defendant Everest committed the above violations anyway. Its conduct in doing so was willful and/or grossly negligent. FIRST CAUSE(S) OF ACTION Investigative Consumer Reporting Agencies Act - Violation of Cal. Civ. Code § 1786, et. seq. (Against All Defendants) 35. Plaintiffs reallege the statements and allegations contained foregoing paragraphs of this Complaint as if fully set forth herein. 36. California Civil Code Section 1786.16(b)(1) requires that any person “who requests an investigative consumer report” must do as follows: 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. If the consumer wishes to receive a copy of the report, the recipient of the report shall send a copy of the report to the consumer within three business days of the date that the report is provided to the recipient, who may contract with any other entity to send a copy to the consumer. The notice to request the report may be contained on either the disclosure form, as required by subdivision (a), or a separate consent form. The copy of the report shall contain the name, address, and telephone number of the person who issued the report and how to contact them. 37. Defendants failed to comply with these provisions. Defendants did not provide a box to check, did not provide a consent form or disclosure, did not provide copies of any of the numerous reports obtained about any Plaintiff, and did not supply the names or addresses of the investigative consumer reporting agencies making the reports. 38. California Civil Code Section 1786.16(a)(3) requires that: 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. The notification shall also include the name and address of the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 FIRST AMENDED COMPLAINT investigative consumer reporting agency that will prepare the report and a summary of the provisions of Section 1786.22. 39. Defendants failed to comply with these provisions. Defendants did not notify any Plaintiff that an investigative consumer report would be made regarding his or her character, general reputation, personal characteristics, and/or mode of living, did not provide the name or address of the investigative consumer reporting agencies that would prepare the reports, and did not provide a summary of the provisions of Section 1786.22. 40. California Civil Code Section 1786.16(a)(5) provides that no Investigative Consumer Report may be procured unless “The person procuring the report or causing it to be prepared agrees to provide a copy of the report to the subject of the investigation, as provided in subdivision (b).” 41. Defendants failed to do so. They never agreed to provide a copy of any of the reports prepared about any Plaintiff. 42. California Civil Code Section 1786.16(a)(5) provides: The person procuring or causing the request to be made shall certify to the investigative consumer reporting agency that the person has made the applicable disclosures to the consumer required by this subdivision and that the person will comply with subdivision (b). 43. Plaintiffs are informed and believe and on that basis allege that Defendants failed to do so, and did not make the required certification to the entities or individuals providing the reports. 44. California Civil Code Section 1786.16(a) provides that no person or entity may “cause to be prepared an investigative consumer report” unless the conditions set forth by Section 1786.16 are met. 45. As set forth above, the conditions set forth by California Civil Code Section 1786.16 were not met, and therefore the Defendants failed to comply with Section 1786.16(a). 46. As a direct, legal and proximate result of Defendants’ conduct as alleged above, Plaintiffs each suffered damages in an amount according to proof at trial, including but not limited to emotional distress, injury, and harm to property interests. 47. In the alternative, Plaintiffs are each entitled to the statutory damages in the amount of Ten Thousand Dollars ($10,000.00) per violation, from each Defendant. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 FIRST AMENDED COMPLAINT 48. In the alternative, Plaintiffs allege that each Investigative Consumer Report procured or supplied by Defendants constitutes a distinct violation of the primary right or rights contemplated by Code of Civil Procedure Sections 1786 through 1786.60, and as such that each report gives rise to a separate “cause of action” for the purposes of the statutory damage amount. Plaintiffs are informed and believes and on that basis allege that at least four (4) and possibly many more Investigate Consumer Reports about each Plaintiff were procured or made by Defendants. 49. The Investigative Consumer Reporting Agencies Act (“ICRAA”) was passed in 1975 and last amended in 1998. Plaintiffs are informed and believe and on that basis allege that Defendants were aware of ICRAA at the time the violations occurred. Defendants are sophisticated, large companies. The Everest/Peak Campus family of companies in California manage over twelve thousand (12,000) units of housing and is landlord to over forty-seven thousand (47,000) people. 50. As discussed more fully above, prior to requesting or procuring the Investigative Consumer Reports about each Plaintiff, Defendant Everest was aware of the Investigative Consumer Reporting Agencies Act, was informed in writing about the Investigative Consumer Reporting Agencies Act, and was informed in writing that the subject of a background check has the “right to receive all disclosures, as provided in CA Civil Code Section 1786.26[,]” and in spite of being on notice that its conduct was unlawful, Defendant Everest committed the above violations anyway. Its conduct in doing so was willful and/or grossly negligent. 51. Defendants’ conduct was grossly negligent and/or willful; therefore Plaintiffs are each also entitled to punitive damages in an amount according to proof. 52. As a direct, legal, and proximate result of Defendants’ conduct, Plaintiffs were caused to and did employ the services of counsel to prosecute this action, and are accordingly entitled to an award of attorney fees according to proof. 53. Plaintiffs are each also entitled to permanent injunctive and declaratory relief to the following effect: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 FIRST AMENDED COMPLAINT a. That Defendants are prohibited from engaging in the violations and other misconduct referred to above; b. That Defendants shall comply with ICRAA to the extent possible with respect to the investigative consumer reports already procured about each Plaintiff; c. That Defendants must deliver, within three days, copies of all investigative consumer reports to the individuals on whom they were prepared, which shall contain the name, address, and telephone number of the person or entity who issued the report and how to contact that person or entity; d. That Defendants shall provide the consumer a means by which the consumer may indicate on a written disclosure or consent form, by means of a box to check, that the consumer wishes to receive a copy of any report that is prepared, and, if the consumer wishes to receive a copy of the report, shall send a copy of the report (which shall bear the name, address, and contact information of the Reporting Agency) to the consumer within three business days of the date that the report is provided to Defendants; e. That prior to procuring any investigative consumer report, Defendants shall agree to provide a copy of the report to the subject of the Report; f. That prior to procuring any investigative consumer report, Defendants shall certify to the Reporting Agency that within three days of the request for the Report, Defendants will provide the consumer a means by which the consumer may indicate on a written disclosure or consent form, by means of a box to check, that the consumer wishes to receive a copy of any report that is prepared, and, if the consumer wishes to receive a copy of the report, shall send a copy of the report (which shall bear the name, address, and contact information of the Reporting Agency) to the consumer within three business days of the date that the report is provided to Defendants; g. That prior to procuring any investigative consumer report, Defendants shall certify to the Reporting Agency that it agrees to provide a copy of the Report to the consumer; h. The Defendants shall, not later than three days after the date on which they first request an Investigative Consumer Report on a person, notify the consumer in a writing, which 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 FIRST AMENDED COMPLAINT shall include a copy or summary of Civil Code Section 1786.22 and the name and address of the Reporting Agency, that an Investigative Consumer Report will be made regarding the consumer’s character, general reputation, personal characteristics, and mode of living; i. That Defendants must deliver, within three days, copies of all investigative consumer reports to the individuals on whom they were prepared; j. That Defendants are prohibited from retaliating against any Plaintiff for the filing of this lawsuit. SECOND CAUSE OF ACTION Unfair Business Practices - Violation of Cal. Bus. & Profs. Code § 17200, et. seq. (Against All Defendants) 54. Plaintiffs reallege the statements and allegations contained foregoing paragraphs of this Complaint as if fully set forth herein. 55. Defendants violated the ICRAA as detailed more fully above. 56. Defendants failed to provide notice to each Plaintiff of their rights, and failed to provide information to each Plaintiff as required by law and as prevailing standards of fairness dictate. 57. Defendants’ violations and conduct described above constitute unfair, unlawful business acts and practices in violation of Business & Professions Code sections 17200, et. seq. 58. Plaintiffs are each entitled to restitution of the fees and deposits paid in connection with their applications to Defendants for an apartment. 59. Plaintiffs bring this action in order to enforce one or more important rights affecting the public interest. The injunction and cessation of Defendants’ wrongful conduct will result in a significant benefit, both pecuniary and nonpecuniary, to the general public, or at least a large class of persons. In the interests of justice, attorney fees should be paid upon recovery by Plaintiffs, or any of them, in this case. The necessity and financial burden of private enforcement of the rights asserted herein make an award of attorney fees appropriate as provided for in Code of Civil Procedure Section 1021.5. 60. Plaintiffs are each also entitled to permanent injunctive and declaratory relief to the following effect: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 FIRST AMENDED COMPLAINT a. That Defendants are prohibited from engaging in the violations and other misconduct referred to above; b. That Defendants shall comply with ICRAA to the extent possible with respect to the investigative consumer reports already procured about each Plaintiff; c. That Defendants must deliver, within three days, copies of all investigative consumer reports to the individuals on whom they were prepared, which shall contain the name, address, and telephone number of the person or entity who issued the report and how to contact that person or entity; d. That Defendants shall provide the consumer a means by which the consumer may indicate on a written disclosure or consent form, by means of a box to check, that the consumer wishes to receive a copy of any report that is prepared, and, if the consumer wishes to receive a copy of the report, shall send a copy of the report (which shall bear the name, address, and contact information of the Reporting Agency) to the consumer within three business days of the date that the report is provided to Defendants; e. That prior to procuring any investigative consumer report, Defendants shall agree to provide a copy of the report to the subject of the Report; f. That prior to procuring any investigative consumer report, Defendants shall certify to the Reporting Agency that within three days of the request for the Report, Defendants will provide the consumer a means by which the consumer may indicate on a written disclosure or consent form, by means of a box to check, that the consumer wishes to receive a copy of any report that is prepared, and, if the consumer wishes to receive a copy of the report, shall send a copy of the report (which shall bear the name, address, and contact information of the Reporting Agency) to the consumer within three business days of the date that the report is provided to Defendants; g. That prior to procuring any investigative consumer report, Defendants shall certify to the Reporting Agency that it agrees to provide a copy of the Report to the consumer; h. The Defendants shall, not later than three days after the date on which they first request an Investigative Consumer Report on a person, notify the consumer in a writing, which 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 FIRST AMENDED COMPLAINT shall include a copy or summary of Civil Code Section 1786.22 and the name and address of the Reporting Agency, that an Investigative Consumer Report will be made regarding the consumer’s character, general reputation, personal characteristics, and mode of living; i. That Defendants must deliver, within three days, copies of all investigative consumer reports to the individuals on whom they were prepared; j. That Defendants are prohibited from retaliating against any Plaintiff for the filing of this lawsuit. THIRD CAUSE OF ACTION Negligence Per Se (Against All Defendants) 61. Plaintiffs reallege the statements and allegations contained foregoing paragraphs of this Complaint as if fully set forth herein. 62. As set forth more fully above, California Code of Civil Procedure Sections 1786 through 1786.60 impose upon Defendants certain affirmative duties which must be performed in connection with the procurement of Investigative Consumer Reports. 63. Defendants negligently, and/or grossly negligently, and/or recklessly violated these duties, as set forth more fully above. 64. Plaintiffs are informed, believe, and thereon allege that Defendants knew and reasonably should have known that their breach of the above duties could result in foreseeable harm to Plaintiffs. 65. As a direct, legal and proximate result of Defendants’ conduct, as alleged above, Plaintiffs each suffered damages, including emotional distress, injury, and harm to property interests, all of which entitle each Plaintiff to damages according to proof. DEMAND FOR JURY TRIAL 66. Plaintiffs each demand a trial by jury for each cause of action stated herein. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 FIRST AMENDED COMPLAINT PRAYER WHEREFORE, Plaintiffs each pray for judgment as follows: 1. For general damages according to proof, on each cause of action for which such damages are available; 2. For compensatory damages according to proof, on each cause of action for which such damages are available; 3. For statutory damages according to law, on each cause of action for which such damages are available, in the amount of One Hundred Sixty Thousand Dollars ($160,000.00) each, from each Defendant, or greater than that amount according to proof; 4. For punitive damages according to proof; 5. For prejudgment and post-judgment interest according to law; 6. For such reasonable attorney fees and costs as are available under California law; 7. For equitable relief and restitution to the extent available under law; 8. For a permanent injunction barring Defendant from engaging in the unlawful conduct described herein and barring Defendant from future violations of ICRAA with respect to each Plaintiff, and requiring Defendant to comply with ICRAA to the extent possible with respect to the reports they have already procured, providing: a. That Defendants are prohibited from engaging in the violations and other misconduct referred to above; b. That Defendants shall comply with ICRAA to the extent possible with respect to the investigative consumer reports already procured about each Plaintiff; c. That Defendants must deliver, within three days, copies of all investigative consumer reports to the individuals on whom they were prepared, which shall contain the name, address, and telephone number of the person or entity who issued the report and how to contact that person or entity; d. That Defendants shall provide the consumer a means by which the consumer may indicate on a written disclosure or consent form, by means of a box to check, that the consumer wishes to receive a copy of any report that is prepared, and, if the consumer 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 FIRST AMENDED COMPLAINT wishes to receive a copy of the report, shall send a copy of the report (which shall bear the name, address, and contact information of the Reporting Agency) to the consumer within three business days of the date that the report is provided to Defendants; e. That prior to procuring any investigative consumer report, Defendants shall agree to provide a copy of the report to the subject of the Report; f. That prior to procuring any investigative consumer report, Defendants shall certify to the Reporting Agency that within three days of the request for the Report, Defendants will provide the consumer a means by which the consumer may indicate on a written disclosure or consent form, by means of a box to check, that the consumer wishes to receive a copy of any report that is prepared, and, if the consumer wishes to receive a copy of the report, shall send a copy of the report (which shall bear the name, address, and contact information of the Reporting Agency) to the consumer within three business days of the date that the report is provided to Defendants; g. That prior to procuring any investigative consumer report, Defendants shall certify to the Reporting Agency that it agrees to provide a copy of the Report to the consumer; h. The Defendants shall, not later than three days after the date on which they first request an Investigative Consumer Report on a person, notify the consumer in a writing, which shall include a copy or summary of Civil Code Section 1786.22 and the name and address of the Reporting Agency, that an Investigative Consumer Report will be made regarding the consumer’s character, general reputation, personal characteristics, and mode of living; i. That Defendants must deliver, within three days, copies of all investigative consumer reports to the individuals on whom they were prepared; j. That Defendants are prohibited from retaliating against any Plaintiff for the filing of this lawsuit. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 FIRST AMENDED COMPLAINT 9. For such other and further relief as the Court should deem just and proper. LAW OFFICE OF JOSEPH B. OLLINGER PC Dated: July 21st, 2020 By: ______________________________________ Joe Ollinger, Esq., attorney for Plaintiffs RICHARD BURTON, ANDREW CLIFTON, KAITLIN KIRKPATRICK, and KIMBERLY KIRKPATRICK EXHIBIT B EXHIBIT C 21878.1 1 STIPULATION RE: PEAK CAMPUS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1100 El Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 Brian K. Stewart, Esq. (State Bar No. 126412) Adam A. Ainslie, Esq. (State Bar No. 311427) COLLINS COLLINS MUIR + STEWART LLP 1100 El Centro Street South Pasadena, CA 91030 (626) 243-1100 - FAX (626) 243-1111 Email: bstewart@ccmslaw.com; aainslie@ccmslaw.com Attorneys for Defendant PEAK CAMPUS CALIFORNIA, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA RICHARD BURTON, an individual; ANDREW CLIFTON, an individual; KYLE LOUEY, an individual; KAITLIN KIRKPATRICK, an individual; KIMBERLY KIRKPATRICK, an individual, Plaintiffs, vs. PEAK CAMPUS CALIFORNIA, INC., a Delaware corporation; REALPAGE, INC., a Delaware corporation; and DOES 1-20 inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 3:19-cv-08341-VC [Assigned to Hon. Vince Chhabria in Courtroom 4] STIPULATION REGARDING PEAK CAMPUS CALIFORNIA, INC. Complaint Filed: 11/21/19 Trial Date: None Plaintiffs RICHARD BURTON, ANDREW CLIFTON, KYLE LOUEY, KAITLIN KIRKPATRICK, and KIMBERLY KIRKPATRICK (collectively “Plaintiffs”), Defendant PEAK CAMPUS CALIFORNIA, INC. (“Peak Campus”), and Defendant REALPAGE, INC. (“RealPage”) (collectively “Defendants”), and Real Party in Interest EVEREST CAMPUS CALIFORNIA, INC. (“Everest”) hereby Case 3:19-cv-08341-VC Document 38 Filed 05/08/20 Page 1 of 5 21878.1 2 STIPULATION RE: PEAK CAMPUS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1100 El Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 respectfully submit the following stipulation. WHEREAS: 1. On November 21, 2019, Plaintiffs filed a Complaint against Defendants in the Superior Court for the State of California, County of San Francisco, Case No. CGC-19-580946. 2. On December 20, 2019, Defendants removed the case to this Court under diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). [Dkt. #1]. 3. On January 22, 2020, Defendants each filed motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). [Dkt. #15 and #16]. 4. On March 5, 2020, the Court heard arguments from counsel on the motions to dismiss and took the matter under submission. The motions remain under submission as of the time of this stipulation. 5. On March 18, 2020, Defendant Peak Campus served its initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1). 6. On March 18, 2020, Plaintiffs filed a Joint Case Management Statement. [Dkt. #31]. 7. On March 20, 2020, Plaintiffs each served written discovery requests upon Defendant Peak Campus, which are presently due May 12, 2020 following extensions granted by counsel for Plaintiffs. [Dkt. #28]. 8. On March 26, 2020, Defendant Peak Campus stipulated along with Defendant RealPage and Plaintiffs to a protective order, which was filed the same day by Defendant RealPage. [Dkt. #33]. 9. On April 13, 2020, Defendant Peak Campus served a declaration of one of its representatives that provided that no investigative consumer report was procured or caused to be procured on Plaintiff Kyle Louey. On May 7, 2020, Defendant RealPage served a declaration of one of its representatives that provided that no investigative consumer report was prepared on Plaintiff Kyle Louey. These declarations were served as part of an agreement with counsel for Plaintiffs to Case 3:19-cv-08341-VC Document 38 Filed 05/08/20 Page 2 of 5 21878.1 3 STIPULATION RE: PEAK CAMPUS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1100 El Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 effectuate a dismissal of Plaintiff Kyle Louey. 10. On May 5, 2020, counsel for Defendant Peak Campus discovered that the actual management company responsible for the property at issue in Plaintiffs’ Complaint was Everest Campus California, Inc., a legally separate entity from Peak Campus California, Inc., but still part of the Peak Campus family of companies. 11. Counsel of record for Peak Campus represents Everest in this matter and will continue to do so for the foreseeable future. 12. In order to cure the defect and have the proper parties to this action, counsel for Plaintiffs has agreed to amend the Complaint and name Everest Campus California, Inc. in place of current Defendant Peak Campus California, Inc. 13. Everest has agreed to respond to the discovery propounded by Plaintiffs to Defendant Peak Campus as if it were propounded to Everest. 14. Based upon the aforementioned, the parties and Everest respectfully request that the Court deem the motion to dismiss filed by Defendant Peak Campus [Dkt. #16], and any and all other documents filed on behalf of Defendant Peak Campus in this matter to be done on behalf on the corrected party Everest Campus California, Inc. 15. The parties and Everest agree that this request is being made solely to permit a correction of the named defendants. This correction shall have no effect on the status of diversity jurisdiction as Everest Campus California, Inc. is a Delaware company with its principal place of business in Atlanta, Georgia. 16. The parties and Everest agree that Plaintiffs may and will file an Amended Complaint in order to correct the identity of the Defendants. 17. The parties and Everest agree that the filing of Plaintiffs’ Amended Complaint shall not affect the status of either Peak Campus’s nor RealPage’s Motions to Dismiss, nor the oppositions thereto. The parties agree that Peak Campus California, Inc.’s [Dkt. #16] and RealPage, Inc.’s Motions to Dismiss [Dkt. #15] shall be treated as though they were filed in response to the Amended Complaint and that neither Case 3:19-cv-08341-VC Document 38 Filed 05/08/20 Page 3 of 5 21878.1 4 STIPULATION RE: PEAK CAMPUS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1100 El Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 RealPage, Inc. nor Everest Campus California, Inc. shall be required to file a new responsive pleading to the Amended Complaint until the Court rules on the pending Motions to Dismiss, with the need for any future responsive pleading depending on the Court’s ruling. The parties further agree that if the Court issues its Ruling on Peak Campus California, Inc.’s Motion to Dismiss prior to the filing of Plaintiffs’ Amended Complaint, the Ruling shall be effective as to Everest Campus California, Inc. 18. For convenience and purposes of clarity, the parties and Everest agree that the filing of this Stipulation shall constitute a general appearance by Everest in this case. 19. Everest agrees that for purposes of any applicable statutes of limitations, within the period provided by Federal Rule of Civil Procedure Rule 4(m) Everest received such notice of the action that it will not be prejudiced in defending on the merits and that it knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity. IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED: May 8, 2020 COLLINS COLLINS MUIR + STEWART LLP By: _________/s/_____________________ BRIAN K. STEWART ADAM A. AINSLIE Attorneys for Defendants PEAK CAMPUS CALIFORNIA, INC. and EVEREST CAMPUS CALIFORNIA, INC. / / / / / / / / / / / / / / / Case 3:19-cv-08341-VC Document 38 Filed 05/08/20 Page 4 of 5 21878.1 5 STIPULATION RE: PEAK CAMPUS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1100 El Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 DATED: May 8, 2020 LAW OFFICES OF JOSEPH OLLIGNER, PC By: _________/s/_____________________ JOSEPH B. OLLINGER Attorneys for Plaintiffs DATED: May 8, 2020 TROUTMAN SANDERS LLP By: _________/s/_____________________ JESSICA LOHR Attorneys for Defendant REALPAGE, INC. Case 3:19-cv-08341-VC Document 38 Filed 05/08/20 Page 5 of 5 EXHIBIT D OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS Joseph B. Ollinger (SBN: 285641) Law Office of Joseph B. Ollinger PC 3348 Griffith Park Blvd. #22 Los Angeles, California 90027 Telephone: (310) 424-0097 Email: josephollinger@gmail.com Attorney for Plaintiffs RICHARD BURTON, ANDREW CLIFTON, KYLE LOUEY, KAITLIN KIRKPATRICK, and KIMBERLY KIRKPATRICK UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA RICHARD BURTON, an individual; ANDREW CLIFTON, an individual; KYLE LOUEY, an individual; KAITLIN KIRKPATRICK, an individual; and KIMBERLY KIRKPATRICK, an individual, Plaintiffs, v. PEAK CAMPUS CALIFORNIA, INC., a Delaware corporation; REALPAGE, INC., a Delaware corporation; and DOES 1-20 inclusive, Defendants. Case No.: 3:19-cv-08341 [Assigned to Hon. Vince Chhabria, San Francisco Division Courtroom 4] PLAINTIFFS’ OPPOSITION TO DEFENDANT PEAK CAMPUS CALIFORNIA, INC.’S MOTION TO DISMISS; AND REQUEST FOR AWARD OF ATTORNEY FEES AND EXPENSES RESULTING FROM IMPROPER REMOVAL IN THE AMOUNT OF $12,710.00 Date: March 5th, 2020 Time: 10:00 a.m. Courtroom: 4 Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 1 of 20 i OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS TABLE OF CONTENTS I. INTRODUCTION……………………………..………………………………………...1 II. ALLEGATIONS PERTINENT TO PEAK CAMPUS………………………………….2 III. LAW AND ARGUMENT……………………………………………………………...4 A. Defendants’ Contentions that Plaintiffs “Lack Article III Standing[,]” If Accepted, Mandate Remand to the State Court Per 28 USC § 1447 - Not Dismissal………...……………………………4 1. Plaintiffs Request $12,710.00 in Attorney Fees and Costs Incurred as a Result of Improper Removal………………………...5 B. Article III Standing Analysis……………………………………………………..6 C. Peak Campus’s Creative Argument that “there is no liability” when the “decision” Is “favorable” Contradicts the Plain Language of ICRAA…………………………………………………………….7 D. The Complaint Makes Clear which Allegations Apply to which Defendant………………………………………………………………..10 E. Punitive Damages Are Properly Pled…………………………………………...10 F. Plaintiffs Have Properly Pled Damages for the UCL Claim……………...…….12 G. Plaintiffs Have Properly Pled Damages for the Negligence Claim…………………………………………………………………………....13 H. Plaintiffs Have Properly Pled for Injunctive Relief…………………………….14 G. If the Court Grants the Motion, Leave to Amend Is Mandatory………………………………………………………………………14 IV. CONCLUSION……………………………………………………………………..…15 Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 2 of 20 ii OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS TABLE OF AUTHORITIES Cases Arias v. Superior Court, 46 Cal.4th 969 (Cal. 2009)……………………………………...….14 ASARCO Inc. v. Kadish, 490 U.S. 605 (1989)………………………………………………..5 Blunt v. Lower Merion Sch. Dist., 767 F.3d 247 (3d Cir. 2014)……………………..………..7 Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251 (9th Cir. 1997)…………………………………………………………1 Caldwell v. Walker 211 Cal.App.2d 758 (Cal.Ct.App. 1963)……………………..………11 Cf. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988)……………………….………14 Cedars-Sinai Medical Center v. Superior Court, 18 Cal.4th 1 (Cal. 1998)…………………………………………………………….12 Collier v. SP Plus Corp., 889 F.3d 894 (7th Cir. 2018)…………………………...…..1, 4 - 6 Connor v. First Student, Inc., 5 Cal.5th 1026 (Cal. 2018)……………………………………..9 David v. Hernandez, 226 Cal.App.4th 578 (Cal.Ct.App. 2014)………………………….….13 Foman v. Davis, 371 U.S. 178 (1962)……………………………………………………….15 Gonzalez v. Downtown LA Motors, LP, 215 Cal.App.4th 36 (Cal.Ct.App. 2013)……………………………………………11 Hazen Paper Co. v. Biggins 507 U.S. 604 (1993)………………………………………….12 Hibbs v. Winn, 542 U.S. 88 (2004)……………………………………………………..…….8 Ibrahim v. Ford Motor Co., 214 Cal.App.3d 878 (Cal.Ct.App. 1989)…………………………………….……..11 In re Business Men's Assurance Co., 992 F.2d 181 (8th Cir. 1993)………………………….5 In re Google Inc. Cookie Placement Consumer Privacy Litigation, 806 F.3d 125 (3d Cir. 2015)………………………………………………….………..7 Kelton Arms Condo. Owners Ass'n, Inc. v. Homestead Ins. Co., 346 F.3d 1190 (9th Cir. 2003)………………………………………...……………….5 Krupnick v. Hartford Accident & Indemnity Co., 28 Cal.App.4th 185 (1994)…………………………………………………………..14 Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 3 of 20 iii OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS Kwikset Corp. v. Superior Court, 51 Cal.4th 310 (2011)…………………………….………12 Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522 (9th Cir. 2008)…………………..……15 Maine Ass'n of Interdependent Neighborhoods v. Comm'r, Maine Dep't of Human Res., 876 F.2d 1051 (1st Cir. 1989)…………………………………………….……………4 Martin v. Franklin Capital Corp., 546 US 132 (2005)………………………………………..5 Mocek v. Allsaints USA Ltd., 220 F.Supp.3d 910 (N.D. Ill. 2016)…………………………………..……………..4, 5 Patel v. Facebook, Inc., No. 18-15982, Justia 18-15982-2019-08-08 (9th Cir. June 21, 2019)……………….………………6, 7 People v. Campbell 138 Cal. 11 (Cal. 1902)…………………………………………………..8 Polo v. Innoventions International, LLC, 833 F.3d 1193, 1996 (9th Cir. 2016)………………………………………1, 4, 5, 13, 14 Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965 (Cal. 1993)……………………………14 Robins v. Spokeo, Inc., 867 F.3d 1108 (9th Cir. 2017)………………………………..……….6 Ross v. City of Long Beach 24 Cal.2d 258 (Cal. 1944)…………………………………….….8 Schreidel v. American Honda Motor Co., 34 Cal.App.4th 1242 (Cal.Ct.App. 1995)………………………………….………..12 Security Pacific National Bank v. Wozab, 51 Cal.3d 991 (Cal. 1990)………………..……….8 Smith v. State Farm Mutual Automobile Ins. Co., 93 Cal.App.4th 700 (Cal.Ct.App. 2001)…………………………………….………..12 Snyder v. Superior Court 9 Cal.App.3d 579 (Cal.Ct.App. 1970)…………………………..12 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)………………………………………………14 Stearns v. Select Comfort Retail Corp, 763 F.Supp.2d 1128 (N.D.Cal. 2010)……………………………..………………….12 Stone Creek, Inc. v. Omnia Italian Design, Inc., 875 F.3d 426 (9th Cir. 2017)…………………………………………………….…..12 Syed v. MI, LLC, 853 F.3d 492 (9th Cir. 2017)………………………………..………………7 Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 4 of 20 iv OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS Constitutions U.S. Const. Art. III………………………………………………………..…………..…4 - 6 Jury Instructions 9th Cir. Jury Instruction 17.37……………………………………………………….……12 CACI 2003………………………………………………………………………………...11 CACI 2704……………………………………………………………………………...…11 CACI 3244………………………………………………………………………………...11 CACI 4441………………………………………………………………………………...12 Statutes 28 U.S.C. § 1447………………………………………………..………………1, 4, 5, 13, 14 Cal. Bus. & Profs. Code § 17203……………………………………………………….…..14 Cal. Civ. Code § 1974………………………………………………………………………11 Cal. Civ. Code § 1786……………………………………………………………..…2, 6, 7, 9 Cal. Civ. Code § 1786.16……………………………………………………….……2, 3, 8, 9 Cal. Civ. Code § 1786.40………………………………………………………………....….9 Cal. Civ. Code § 1786.50……………………………………………………….……3, 8 - 12 Cal. Civ. Code § 1786.53…………………………………………………………………….9 Cal. Code Civ. P. § 1950.6……………………………………………………………...…..13 Cal. Code Civ. P. § 3294……………………………………………………………………11 Cal. Evid. Code § 115……………………………………………………………………….11 Cal. Code. Civ. P. § 1858…………………………………………………………………….8 Cal. Welfare & Inst. Code § 15657……………………………………………………....….11 Fed. R. Civ. P 15……………………...…………………………………………………….15 Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 5 of 20 1 OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In an act of unabashed gamesmanship, Defendants removed this case to federal court and now contend vigorously that it should be dismissed due to a lack of Article III standing. This “dubious strategy” has been disapproved. Collier v. SP Plus Corp., 889 F.3d 894, 895, 897 (7th Cir. 2018). Per 28 U.S.C. Section 1447, “a removed case in which the plaintiff lacks Article III standing must be remanded to state court” and the district court “must remand the case to state court, rather than dismiss it.” Polo v. Innoventions International, LLC, 833 F.3d 1193, 1996 (9th Cir. 2016) (emphasis in original), citing Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997). While a district court cannot remand an entire case where it has jurisdiction over some claims and not others, that distinction does not apply here, as all claims arise from the same conduct, and either Plaintiffs suffered a “concrete and particularized” injury under all causes of action, or under none of them. If the Court determines that, as Defendants both argue, Plaintiffs “lack Article III standing” due to the absence of a “concrete and particularized” injury, the Court can - and should - simply cease its analysis here and remand the case back to state court. The other arguments of Defendant Peak Campus, Inc. (“Peak Campus”) are frivolous. Asking the Court to rewrite plain statutory language, it claims, “Under the ICRAA, a user of investigative consumer reports is not liable when the decision using an investigative consumer report regarding the consumer is favorable.” (Mot. 7.) Not so. The actual language Peak Campus cites provides an exception to liability only “where the failure to comply results in a more favorable investigative consumer report than if there had not been a failure to comply.” Cal. Civ. Code § 1786.50(c) (emphasis added). Established rules of statutory interpretation forbid Peak Campus’s proposed change from “more favorable report” to “equally favorable decision.” A “report” is not a “decision,” and “more favorable” is not “identical.” Peak Campus’s argument that the Complaint “fails to give fair notice as to the specifics of what each defendant is accused of doing wrog [sic]” (Mot. 7) is belied by a simple glance at the Complaint, which specifies the separate acts of each Defendant and only Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 6 of 20 2 OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS makes allegations against “Defendants” when both are subject to those specific allegations. Peak Campus’s claim that “Plaintiffs’ [sic] have not suffered any economic loss required to assert a claim under the UCL” and “do not demonstrate any actual harm” because they “received the apartments they applied for” (Mot. 7) are also easily disposed of. Perhaps contrary to Peak Campus’s myopic worldview, damages can result from things other than being denied an apartment. The Complaint lays out a fairly clear picture of willful, or at least grossly negligent mishandling of Plaintiffs’ personal, private, identifying information. Plaintiffs have alleged damages sufficiently to satisfy state pleading requirements. Again, however, the Court only has two options: determine that Plaintiffs suffered a sufficiently “concrete and particularized injury,” or remand the case back to state court. For these reasons and those detailed below, Plaintiffs request that this Court remand the case to state court and award the amount of twelve thousand seven hundred ten dollars ($12,710.00) in attorney fees and costs resulting from Defendants’ improper removal of the case. In the alternative, Plaintiffs request that the Court deny RealPage’s Motion to Dismiss in its entirety. II. ALLEGATIONS PERTINENT TO PEAK CAMPUS The California Investigative Consumer Reporting Agencies Act (“ICRAA”), California Civil Code Sections 1786 through 1786.60, imposes specific, affirmative requirements on those who procure, request, use, or furnish Investigative Consumer Reports. Peak Campus does not seem to deny that it requested, procured, and used Investigative Consumer Reports about Plaintiffs. (Alleged at Complaint ¶¶ 16, 19, 21.) California Civil Code Section 1786.16, subdivision (b)(1) requires that any person “who requests an investigative consumer report” must “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.” (Cited at Complaint ¶ 42.) Peak Campus failed to do so. (Complaint ¶¶ 26, 27, 43.) “If the consumer wishes to receive a copy of the report, the recipient of the report shall send a copy of the report to the consumer within three business days of the date that Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 7 of 20 3 OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS the report is provided to the recipient” and that the copy “shall contain the name, address, and telephone number of the person who issued the report and how to contact them.” Cal. Civ. Code § 1786.16(b)(1) (cited at Complaint ¶ 42). Peak Campus failed (and is still failing) to provide any copy. (Complaint ¶¶ 26, 31, 33, 43.) California Civil Code Section 1786.16, subdivision (b)(1) requires that any 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” and requires that this written notice “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.” (Cited at Complaint ¶ 44.) Peak Campus failed (and is still failing) to provide such this required written notice at all. (Complaint ¶¶ 26, 31, 30, 32, 45.) California Civil Code Section 1786.16, subdivision (a)(5) provides that no person may procure an Investigative Consumer Report unless “[t]he person procuring the report or causing it to be prepared agrees to provide a copy of the report to the subject of the investigation, as provided in subdivision (b).” (Cited at Complaint ¶ 46.) Peak Campus never agreed to provide a copy of any of the reports. (Complaint ¶¶ 29, 33, 47.) California Civil Code Section 1786.16(a)(5) provides that “The person procuring or causing the request to be made shall certify to the investigative consumer reporting agency that the person has made the applicable disclosures to the consumer required by this subdivision and that the person will comply with subdivision (b).” (Cited at Complaint ¶ 48.) Peak Campus never made these required certifications. (Complaint ¶¶ 28, 49.) California Civil Code Section 1786.50 expressly endows “the consumer who is the subject of the report” with a right of action against any “user of information that fails to comply with any requirement” of ICRAA. As to damages, Plaintiffs have alleged emotional distress and injury, economic harm, and the denial of reports to which they have a statutory right. (Complaint ¶¶ 33, 43, 56, 64(c), Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 8 of 20 4 OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS 75.) If not for Peak Campus’s failure to provide required disclosures and copies, Plaintiffs would have received the required disclosures and copies of their reports. The Complaint does not expressly allege so, but it also follows that the harm to Plaintiffs’ peace of mind resulting from the mishandling of their private identifying information would not have resulted if not for Peak Campus’s abdication of its affirmative obligations under ICRAA. III. LAW AND ARGUMENT A. Defendants’ Contentions that Plaintiffs “Lack Article III Standing[,]” If Accepted, Mandate Remand to the State Court Per 28 USC § 1447 - Not Dismissal Peak Campus contends ardently that Plaintiffs’ “Fail to Demonstrate Standing” to “meet the rigors of Article III.” (Mot. 12 - 13.) While Defendant RealPage, Inc. (“RealPage”) approaches the issue more delicately, it also contends that “Plaintiffs Lack Article III Standing” as to all claims, and that “other district courts have consistently dismissed similar ICRAA claims for lack of standing[.]” (RealPage Motion 5 - 7.) If accepted, these arguments mandate remand to the state court - not dismissal. The “dubious strategy” of removing a case and then claiming a lack of Article III standing has been disapproved since Spokeo. Collier, 889 F.3d at 895, 897 (7th Cir. 2018); Mocek v. Allsaints USA Ltd., 220 F.Supp.3d 910, 914 - 915 (N.D. Ill. 2016). “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c) (emphasis added). The 9th Circuit has held that “a removed case in which the plaintiff lacks Article III standing must be remanded to state court” and that the district court “must remand the case to state court, rather than dismiss it.” Polo, 833 F.3d at 1996 (emphasis in original), citing Bruns, 122 F.3d at 1257. Dismissal rather than remand in these circumstances is reversible error. Ibid.; accord, Collier, 889 F. 3d at 897 (holding that “§ 1447(c) required the district court to remand this case to state court, because it does not satisfy Article III's requirement”); Maine Ass'n of Interdependent Neighborhoods v. Comm'r, Maine Dep't of Human Res., 876 F.2d 1051, 1053 - 1054 (1st Cir. 1989) (concluding § 1447(c) requires district court to remand, not dismiss, for lack of standing). The only Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 9 of 20 5 OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS exception to the rule is where the district court has “absolute certainty’ that a state court would simply dismiss the action on remand. Polo, 833 F.3d at 1198 (internal quotations omitted). The Court is “required to resolve all doubts about federal jurisdiction in favor of remand." In re Business Men's Assurance Co., 992 F.2d 181, 183 (8th Cir. 1993). “Remand is the correct remedy because a failure of federal subject matter jurisdiction means only that the federal courts have no power to adjudicate the matter[,]” while “[s]tate courts are not bound by the constraints of Article III.” Polo, 833 F.3d at 1996 citing ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989). Here, both Defendants contend that Plaintiffs “Lack Article III Standing.” (RealPage Mot. 5 - 6; Mot. 12 - 13.) The basis for these arguments is an alleged lack of a “concrete and particularized injury.” (Mot. 13; RealPage Motion 5 - 9.) While a district court cannot remand an entire case where it has jurisdiction over some claims and not others (Lee v. American Nat. Ins. Co., 260 F.3d 997, 1006 (2001)), that cannot possibly be the case here, as all claims arise from the same conduct. (Complaint ¶¶ 15 - 75.) Either Plaintiffs suffered a “concrete and particularized” injury under all causes of action, or none of them. As such, if the Court accepts Defendants’ arguments that Plaintiffs did not suffer a “discrete and particularized injury,” it must remand the case to state court. Polo, 833 F.3d at 1996; 28 U.S.C. § 1447. “No motion, timely or otherwise, is necessary[.]” Polo, 833 F.3d at 1196, citing Kelton Arms Condo. Owners Ass'n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003). 1. Plaintiffs Request $12,710.00 in Attorney Fees and Costs Incurred as a Result of Improper Removal Where, as here, the “defendant trie[s] to have it both ways by asserting, then immediately disavowing, federal jurisdiction” a court should not just remand the case, but should have “no trouble concluding that defendant lacked an ‘objectively reasonable basis for seeking removal’” and awarding the plaintiff attorney fees on that basis. Mocek, 220 F.Supp.3d at 914 - 915, citing Martin v. Franklin Capital Corp., 546 US 132 (2005); 28 U.S.C. § 1447(c). Importantly, no separate motion is necessary for such an award. Ibid.; see also Collier, 889 Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 10 of 20 6 OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS F.3d at 897 (declining to award attorney fees and expenses only because the Motion to Dismiss Opposition Brief did “not adequately develop a basis to do so”). Here, Plaintiffs submit the Declaration of Joe Ollinger in Support of Plaintiffs’ Request for Attorney Fees and Costs in Connection with Remand (“Ollinger Decl.”). That Declaration itemizes the additional thirty (30) hours or attorney time directly necessitated by Defendants’ removal of the case, and establishes a proper basis for the requested award. While RealPage filed the Notice of Removal, Peak Campus affirmatively consented to it. (See Peak Campus Certification of Consent to Removal, Exh. B to Notice of Removal filed Dec. 20, 2019.) As such, Plaintiffs request that the order of attorney fees and expenses be assessed jointly and severally between the two Defendants. B. Article III Standing Analysis Courts apply a “two-step approach to determine whether the violation of a statute causes a concrete injury”: “(1) whether the statutory provisions at issue were established to protect [the plaintiff’s] concrete interests (as opposed to purely procedural rights)” and “(2) whether the specific procedural violations alleged in this case actually harm, or present a material risk of harm, to such interests.” Robins v. Spokeo, Inc., 867 F.3d 1108, 1113 (9th Cir. 2017) (“Spokeo II”). Statutes designed to protect consumers’ personal, private information are generally deemed to satisfy the first prong. Patel v. Facebook, Inc., No. 18-15982, 2020, Justia 18- 15982-2019-08-08, at 16 - 18 (9th Cir. June 21, 2019). ICRAA was passed to protect consumers from identity theft and mistakes in reporting and to ensure “respect for the consumer’s right to privacy.” Cal. Civ. Code § 1786. As to the second prong, Plaintiffs have alleged emotional distress and injury (which Defendants argue are not available) and harm to property interests. (Complaint ¶¶ 56, 75.) They have also alleged that they were denied the report copies to which the statute entitles them. (Complaint ¶¶ 33, 43, 64(c), Prayer 8(c).) “The contours of the injury-in-fact requirement, while not precisely defined, are very generous, requiring only that claimant allege[ ] some specific, identifiable trifle of injury." Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 11 of 20 7 OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 278 (3d Cir. 2014) (emphasis omitted) (citation and internal quotation marks omitted). Injury-in-fact has been found for violations as minor as undisclosed use of “cookies” in internet sites (In re Google Inc. Cookie Placement Consumer Privacy Litigation, 806 F.3d 125 (3d Cir. 2015)), the undisclosed gathering of web browsing information (In re Nickelodeon Consumer Privacy Litigation, 827 F.3d 262 (3d Cir. 2016)), and the undisclosed use of photos for facial recognition software (Patel, No. 18-15982 at 18 - 20). An “historical predicate” for the type of harm ICRAA protects against may be found in the common law torts of intrusion upon seclusion and public disclosure of private facts. In Syed v. MI, LLC, 853 F.3d 492, 499 (9th Cir. 2017), the 9th Circuit Court of Appeals found Article III standing for the FCRA’s “disclosure requirement” which “creates a right to information by requiring prospective employers to inform job applicants that they intend to procure their consumer reports” and “a concrete injury when applicants are deprived of their ability to meaningfully authorize the [report].” ICRAA provides similar, and indeed, more rigorous, disclosure requirements and privacy rights. The California legislature recognized a “material risk” posed by violations of the statute: (c) The crime of identity theft in this new computer era has exploded to become the fastest growing white collar crime in America. (d)The unique nature of this crime means it can often go undetected for Years without the victim being aware his identity has been misused. (e) Because notice of identity theft is critical before the victim can take steps to stop and prosecute this crime, consumers are best protected if they are automatically given copies of any investigative consumer reports made on them. Cal. Civ. Code § 1786. Again, the same harms are alleged for all causes of action, so if the Court determines that Plaintiffs suffered a “concrete, particularized” injury for the purposes of ICRAA, it follows that such an injury necessarily occurred for the purposes of the UCL and Negligence Per Se claims. C. Peak Campus’s Creative Argument that “there is no liability” when the “decision” Is “favorable” Contradicts the Plain Language of ICRAA Peak Campus claims, “There is no liability under California’s Investigative Consumer Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 12 of 20 8 OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS Reporting Agency Act when the user of information’s decision based on an investigative consumer report is favorable.” (Mot. 9.) This is contradicted by the plain language of California Civil Code Section 1786.50, subdivision (c). Peak Campus acknowledges that this provision provides that the user “shall not be liable to a consumer who is the subject of the report where the failure to comply results in a more favorable investigative consumer report than if there had not been a failure to comply.” Cal. Civ. Code § 1786.50, subd. (c) (emphasis added, Cited at Mot. 9). Peak Campus has not alleged that the reports were more favorable, and no such allegation is contained in the pleadings. A “report” is not “decision.” Similarly, no decision or outcome was “more favorable” than it would have been in the absence of Peak Campus’s ICRAA violations. Plaintiffs have no criminal records or evictions history; they would be been approved regardless of whether Peak Campus violated ICRAA or not. “Identical” is not “more favorable.” As for Peak Campus’s citation to “Cal Bus. Law Deskbook” (Mot. 9), it is unclear to what publication that refers, as Peak Campus has not identified the publisher. Presumably, because the passage quoted refers to “employee in question,” the section cited refers to California Civil Code Section 1786.16, subdivision (a)(2) or Section 1786.28, subdivision (b), which are not even at issue in this case. Those subdivisions pertain to reports obtained for employment purposes, and impose a different set of requirements than those at stake here. Peak Campus asks the Court to change “more favorable report” to “equally favorable decision.” It simply cannot do so. California Code of Civil Procedure Section 1858 provides that courts may not “insert what has been omitted, or to omit what has been inserted” when interpreting statutes of the State of California. It is a “cardinal rule of statutory construction that courts must not add provisions to statutes.” Security Pacific National Bank v. Wozab, 51 Cal.3d 991, 998 (Cal. 1990), citing People v. Campbell 138 Cal. 11, 15 (Cal. 1902); Ross v. City of Long Beach 24 Cal.2d 258, 260 (Cal. 1944). The rule is the same in Federal courts: “A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Hibbs v. Winn, 542 U.S. 88, 101 (2004). Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 13 of 20 9 OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS Peak Campus’s argument that “When a consumer is not subject to any adverse decision… technical violation of the ICRAA does not impose liability against the user of that information” (Mot. 10) is not only unsupported, it is directly contradicted by the statute. ICRAA explicitly codifies the idea of “adverse actions” and imposes separate, additional requirements for when one is taken or considered. Cal. Civ. Code §§ 1786.16(b)(2), 1786.40(a), 1786.40(b), 1786.53(b)(4). These provisions are not at stake in this case. If the legislature wanted to impose an “adverse action” requirement on the rest of ICRAA’s provisions - the ones Peak Campus violated - it clearly could have done so. The Court must thus decline Peak Campus’s invitation to insert an “adverse action” requirement into all of ICRAA’s other provisions. As for Peak Campus’s argument that declining to change the plain language of ICRAA “would render the language of section 1786.50, subdivision (c) as meaningless and without effect[,]” Peak Campus ignores the actual situation the language describes: one in which the report is more favorable than it would otherwise have been, such as a report which erroneously omits felony convictions, for example. Peak Campus’s argument is even further undermined by the procedural history of Connor v. First Student, Inc., 5 Cal.5th 1026 (Cal. 2018). In that case, 1,200 plaintiffs made “identical claims.” Connor, 5 Cal.5th at fn.2. Of these only a “subgroup” suffered an actual adverse action (in that case, termination). Connor, 5 Cal.5th at fn. 3. Under Peak Campus’s proposed change to the law, none of the Connor plaintiffs outside that subgroup would have had cognizable claims. Additionally, imposing Peak Campus’s proposed adverse action requirement would thwart and undermine the stated statutory purposes of ICRAA. Cal. Civ. Code § 1786. Nothing in ICRAA’s statement of purpose addresses the idea of protecting people from “adverse actions” or adverse “decisions”; instead, the California legislature declared, “The crime of identity theft in this new computer era has exploded to become the fastest growing white collar crime in America” and because identity theft “can often go undetected for years without the victim being aware his identity has been misused” and because “notice of identity theft is Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 14 of 20 10 OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS critical before the victim can take steps to stop and prosecute this crime, consumers are best protected if they are automatically given copies of any investigative consumer reports made on them.” Ibid. The statute was created to protect consumer privacy and prevent identity theft; not to create some technical form of recourse for individuals who are denied apartments. D. The Complaint Makes Clear which Allegations Apply to which Defendant Relying on District Court opinions from the Northern District of Illinois and the District of New Jersey, Peak Campus asks for dismissal because “Plaintiffs’ Complaint fails to separate out the liability for each defendant.” (Mot. 11.) Peak Campus falsely claims that the Complaint “lump[s] several defendants together without setting forth what each particular defendant is alleged to have done.” (Mot. 11.) A simple read-through of the Complaint reveals that Plaintiffs differentiated all allegations by the Defendant(s) and Plaintiff(s) to which they apply. (See, e.g., Complaint ¶¶ 19 - 26, 34 - 40, 53, 55, 60, 61.) The Complaint expressly states that “’Defendants’ means Defendants Peak Campus California, Defendant RealPage, and the fictitiously named Defendants, each and all of them” and that “unless otherwise specified, reference to a Defendant shall refer to all Defendants, inclusive, and each of them. (Complaint ¶ 11.) “Defendants” is only used where the allegations apply to both Defendants. E. Punitive Damages Are Properly Pled Peak Campus argues that Plaintiffs’ claim for punitive damages “must be dismissed” because “Plaintiffs have not suffered any actual injury.” (Mot. 11 - 12.) Plaintiffs allege that they suffered emotional distress, injury, and harm to property interests resulting from the mishandling of their private identifying information. (Complaint ¶¶ 56, 75.) More importantly, the Court must again decline Peak Campus’s invitation to write requirements into a statute which are not there. ICRAA provides, “If the court determines that the violation was grossly negligent or willful, the court may, in addition, assess, and the consumer may recover, punitive damages.” Cal. Civ. Code § 1786.50(b). Nothing in the statute requires a showing of “underlying actual damage.” To the contrary, Section 1786.50 expressly provides for recovery even if no damages at all are shown. Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 15 of 20 11 OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS Thirdly, all of the authority cited by Peak Campus relates to California Code of Civil Procedure Section 3294, which is completely inapposite. Unlike Section 3294, Section 1786.50(c) does not require a “clear and convincing” showing of “malice, fraud, oppression” or “outrageous conduct”; it instead applies a “willful or grossly negligent” standard, to be determined by a preponderance. Cal. Evid. Code § 115 (“Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence”). ICRAA thus provides a separate entitlement to punitive damages, not reliant on Section 3294. Similar statutes include the Elder Abuse Statute (Cal. Welfare & Inst. Code § 15657 (identical to Section 3294 except for added inclusion of “recklessness”)) and the Song-Beverly Act (Cal. Civ. Code § 1974(c) (providing penalty to “punish a defendant or discourage” it on a showing, by a preponderance of the evidence, that the violation was willful)). Plaintiffs have properly pled that the violations were willful or at least grossly negligent. (Complaint ¶¶ 35 - 37, 59, 60, 62.) No case has set forth a definition for willfulness specifically under ICRAA. However, “In civil cases, the word ‘willful,’ as ordinarily used in courts of law, does not necessarily imply anything blamable, or any malice or wrong toward the other party, or perverseness or moral delinquency, but merely that the thing done or omitted to be done was done or omitted intentionally.” Ibrahim v. Ford Motor Co., 214 Cal.App.3d 878, 894 (Cal.Ct.App. 1989) (internal citations omitted). “It amounts to nothing more than this: That the person knows what he is doing, intends to do what he is doing, and is a free agent.” Ibid. (internal citations omitted). California jurisprudence has consistently established that the term “willful” simply means “intentional” or “knowing.” CACI 2003 (trespass/conversion context); Caldwell v. Walker 211 Cal.App.2d 758, 763 - 764 (Cal.Ct.App. 1963) (“the act complained of must not only be willful, in the sense of intentional…”) CACI 2704 (wage and hour context); Gonzalez v. Downtown LA Motors, LP, 215 Cal.App.4th 36, 54 (Cal.Ct.App. 2013) (“’willful’ merely means that the employer intentionally failed or refused to perform an act which was required to be done”); CACI 3244 (Song-Beverly context); Ibrahim, 214 Cal.App.3d at 894 (“’Willful’ means that [the defendant] knew of [its] legal obligations and intentionally Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 16 of 20 12 OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS declined to follow them”); CACI 4441 (Trade Secrets context); Schreidel v. American Honda Motor Co., 34 Cal.App.4th 1242, 1249-1250 (Cal.Ct.App. 1995) (willfulness exists if defendant “knew of its obligations but intentionally declined to fulfill them” even with no showing of “blame, malice or moral delinquency”); Cedars-Sinai Medical Center v. Superior Court, 18 Cal.4th 1, 11 - 13 (Cal. 1998) (“willful suppression of evidence” identical to “intentional spoliation” or “intentionally concealed or destroyed”); Snyder v. Superior Court 9 Cal.App.3d 579, 587 (Cal.Ct.App. 1970) (in California discovery context “willful” means “[a] conscious or intentional failure to act, as distinguished from accidental or involuntary noncompliance” and “does not necessarily include a wrongful intention”). Federal courts also equate “willful” with “intentional.” 9th Cir. Jury Instruction 17.37 (in the copyright context, additional damages are available for willful infringement where the defendant “knew that [its] acts infringed the copyright, or the defendant acted with reckless disregard for, or willful blindness to, the copyright holder’s rights”); Hazen Paper Co. v. Biggins 507 U.S. 604, 615 (1993) (in the ADEA context, “A defendant’s conduct is willful if the defendant knew or showed reckless disregard for whether the [act] was prohibited by law”); Stone Creek, Inc. v. Omnia Italian Design, Inc., 875 F. 3d 426, 442 (9th Cir. 2017) (in the trademark context, courts treat “willful” and “intentional” infringement identically and interchangeably for disgorgement remedy). Peak Campus has demonstrated no reason why the Court should effectively delete Section 1786.50, subdivision (b) from ICRAA. Similarly, it has shown no reason why the Court should impose additional requirements which are not contained therein. F. Plaintiffs Have Properly Pled Damages for the UCL Claim Peak Campus acknowledges, ““For an action based upon an allegedly unlawful business practice, the UCL ‘borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.’” (Mot. 14, citing Stearns v. Select Comfort Retail Corp, 763 F.Supp.2d 1128, 1150 (N.D.Cal. 2010), Smith v. State Farm Mutual Automobile Ins. Co., 93 Cal.App.4th 700, 718-19 (Cal.Ct.App. 2001).) Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 17 of 20 13 OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS Peak Campus’s UCL arguments all sound in California Proposition 64. (Mot. 14.) “The intent of [Proposition 64] was to confine standing to those actually injured by a defendant's business practices and to curtail the prior practice of filing suits on behalf of clients who have not used the defendant's product or service, viewed the defendant's advertising, or had any other business dealing with the defendant[.]” Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 321 (2011) (internal quotation marks removed). Here, there is no dispute that Plaintiffs used Defendants’ services and products. Additionally, Peak Campus’s argument for dismissal of the UCL claims is based wholly on the false premise that Plaintiffs were not injured. (Mot. 13 - 14.) Plaintiffs have alleged economic injury. (Complaint ¶¶ 56.) On the simplest, most basic level, they paid an application fee which included a charge for a background check, and were not provided with the copies they were legally entitled to receive. (Complaint ¶¶ 19, 29, 33, 43, 46, 69.) Running a background check on someone, including one’s self, carries a price. See Cal. Code Civ. P. § 1950.6. A copy of the report thus has economic value. Again, however, if the Court determines that Plaintiffs have alleged no “concrete and particularized injury,” it must remand the case to state court. Polo, 833 F.3d at 1996; 28 U.S.C. § 1447. G. Plaintiffs Have Properly Pled Damages for the Negligence Claim Plaintiffs have properly pled all elements of a claim for Negligence under the Negligence Per Se theory. ““Under the doctrine of negligence per se, the plaintiff ‘borrows’ statutes to prove duty of care and standard of care.” David v. Hernandez, 226 Cal.App.4th 578, 584 (Cal.Ct.App. 2014). Here, Plaintiffs have pled the existence of a statutory duty (Complaint ¶¶ 36 - 55, 72), the breach of that duty (Complaint ¶¶ 15 - 62, 73), causation and damages (Complaint ¶¶ 33, 43, 56, 75.) Peak Campus’s argument for dismissal of the Negligence Per Se claims is also based on its contention that Plaintiffs suffered no “actual harm.” (Mot. 15.) Plaintiffs have pled emotional distress, injury, and economic harms, in addition to the failure to provide copies of the reports. (Complaint ¶¶ 33, 43, 56, 75.) Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 18 of 20 14 OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS Peak Campus’s contention that physical injury is required for a negligence claim (Mot. 15) are squarely contrary to law. “[D]amages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact[.]” Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 986 (Cal. 1993); accord, Krupnick v. Hartford Accident & Indemnity Co., 28 Cal.App.4th 185, 220 (Cal.Ct.App. 1994). Again, if the Court determines that Plaintiffs have suffered no “concrete and particularized injury,” it must remand the case to state court. Polo, 833 F.3d at 1996; 28 U.S.C. § 1447. H. Plaintiffs Have Properly Pled for Injunctive Relief “Any person performing or proposing to perform an act of unfair competition within this state may be enjoined in any court of competent jurisdiction.” Cal. Bus. & Profs. Code § 17203; Arias v. Superior Court, 46 Cal.4th 969, fn.3 (Cal. 2009). Plaintiffs have alleged that Peak Campus is performing unlawful business practices per ICRAA. (Complaint ¶¶ 15 - 70.) These violations are ongoing, in spite of Peak Campus’s awareness that they are unlawful. (Complaint ¶¶ 43, 47, 59, 60.) Even as to Plaintiffs individually, Peak Campus has still not provided the report copies ICRAA requires it to provide. (Complaint ¶¶ 33, 43.) Peak Campus’s sole argument is the same “standing analysis” consisting of the idea that Plaintiffs claim for injunctive relief “does not ‘satisfy the injury-in-fact requirement of Article III.’” (Mot. 13, quoting Spokeo, Inc. v. Robbins, 136 S. Ct. 1540, 1549 (2016).) Again, if the Court accepts this contention, it must remand the case, as discussed above.1 Polo, 833 F.3d at 1996; 28 U.S.C. § 1447. G. If the Court Grants the Motion, Leave to Amend Is Mandatory Leave to amend is to be “freely granted” and generally will constitute an abuse of discretion in the absence of an affirmative showing of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments 1 If the Court determines that past harm is sufficient for Article III purposes but that future harm is not, it may remand the claim for injunctive relief to the state court. Cf. Carnegie- Mellon Univ. v. Cohill, 484 U.S. 343, 351 - 352 (1988). Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 19 of 20 15 OPPOSITION TO PEAK CAMPUS CALIFORNIA, INC. MOTION TO DISMISS previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment.” (Foman v. Davis, 371 U.S. 178, 182 (1962); Fed. R. Civ. P 15.) The “outright refusal to grant the leave without any justifying reason appearing” is an abuse of that discretion. Ibid. Specifically, denial of leave to amend because of futility of amendment is reversible error unless "it is clear, upon de novo review, that the complaint would not be saved by any amendment." Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008) (internal quotation marks omitted). IV. CONCLUSION For the reasons detailed above, Plaintiffs request that this Court remand the case to state court and award the amount of twelve thousand seven hundred ten dollars ($12,710.00) in attorney fees and costs resulting from Defendants’ improper removal of the case. In the alternative, Plaintiffs request that the Court deny Peak Campus’s Motion to Dismiss in its entirety. Should the Court grant any portion of Peak Campus’s Motion, Plaintiffs request leave to amend. Plaintiffs pray for any other relief the Court should deem just and proper. LAW OFFICE OF JOSEPH B. OLLINGER PC Dated: February 5th, 2020 _______________________________________ Joe Ollinger, Esq., attorney for Plaintiffs RICHARD BURTON, ANDREW CLIFTON, KYLE LOUEY, KAITLIN KIRKPATRICK, and KIMBERLY KIRKPATRICK Case 3:19-cv-08341-VC Document 19 Filed 02/05/20 Page 20 of 20 EXHIBIT E UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA RICHARD BURTON, et al., Plaintiffs, v. PEAK CAMPUS CALIFORNIA, INC. Defendants. Case No. 19-cv-08341-VC ORDER REMANDING CASE TO STATE COURT The plaintiffs in this case lack Article III standing to pursue any of their claims as alleged in their complaint. As the remaining defendant points out, the plaintiffs lack standing to seek prospective injunctive relief because they do not allege any likelihood of future harm. See City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983). But they also do not adequately articulate any harm deriving from the defendant’s alleged past violations of California statutory provisions setting out mandatory procedures for investigative consumer reporting agencies and those who request consumer reports. The complaint alleges that the defendant failed, among other things, to make certifications about how consumer information would be used and to provide the plaintiffs with copies of their consumer reports, as required by certain provisions of California’s Investigative Consumer Reporting Agencies Act. See Cal. Civ. Code § 1786, et. seq. It seems likely that, as a general matter, plaintiffs could allege facts sufficient to show Article III standing from violations of some of these provisions. For example, it could be that if a tenant paid an application fee with the expectation of receiving a copy of the consumer report that the landlord obtains using the fee, and never received the copy, the loss of the fee would be a sufficient concrete injury to support standing. But here, while the complaint alleges that a fee was paid, it alleges no connection Case 3:19-cv-08341-VC Document 45 Filed 07/21/20 Page 1 of 2 2 between the payment of the fee and any injury. The only injuries alleged are extremely vague- damages deriving from “emotional distress, injury, and harm to property interests.” Complaint ¶ 56, Dkt. 1-2. And there is no basis to infer a connection between the payment of the fee and obtaining a copy of the report: the statutory right to a copy of a consumer report doesn’t hinge on the payment of any fee, and conversely, there’s no indication that the payment of the fee, in the absence of the statute, would entitle the plaintiffs to a copy of any report. See Cal. Civ. Code § 1786.16(b)(1). Similarly, while a plaintiff could show an “informational injury” caused by ICRAA violations in some circumstances, the complaint here articulates no such injury. For example: there is no allegation that the plaintiffs were deprived of any information that was valuable to them; or that the plaintiffs would have checked the box to request a copy of their reports if the option had been given to them; or that any of the information in the consumer reports was false and therefore that the plaintiffs were injured by being unable to review that information. See Robins v. Spokeo, Inc., 867 F.3d 1108, 1116 (9th Cir. 2017); Rotor v. Signature Consultants, LLC, No. 18-CV-07526-JST, 2019 WL 3246535, at *5 (N.D. Cal. July 19, 2019). Because the plaintiffs’ allegations do not give rise to Article III standing, the case must be remanded to state court. See Polo v. Innoventions International, LLC, 833 F.3d 1193, 1196 (2016). The plaintiffs’ request for attorney’s fees is denied. The case is remanded to San Francisco Superior Court. The Clerk of Court is directed to close the case. IT IS SO ORDERED. Dated: July 21, 2020 ______________________________________ VINCE CHHABRIA United States District Judge Case 3:19-cv-08341-VC Document 45 Filed 07/21/20 Page 2 of 2 EXHIBIT F 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ANDREW CLIFTON’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE Joseph B. Ollinger (SBN: 285641) Law Office of Joseph B. Ollinger PC 3348 Griffith Park Blvd. #22 Los Angeles, California 90027 Telephone: (310) 424-0097 Email: josephollinger@gmail.com Attorney for Plaintiffs RICHARD BURTON, ANDREW CLIFTON, KYLE LOUEY, KAITLIN KIRKPATRICK, and KIMBERLY KIRKPATRICK UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA RICHARD BURTON, an individual; ANDREW CLIFTON, an individual; KYLE LOUEY, an individual; KAITLIN KIRKPATRICK, an individual; and KIMBERLY KIRKPATRICK, an individual, Plaintiffs, v. PEAK CAMPUS CALIFORNIA, INC., a Delaware corporation; REALPAGE, INC., a Delaware corporation; and DOES 1-20 inclusive, Defendants. Case No.: 3:19-cv-08341-VC [Assigned to Hon. Vince Chhabria - Courtroom 4] PLAINTIFF ANDREW CLIFTON’S RESPONSES TO REQUESTS FOR ADMISSIONS FROM DEFENDANT PEAK CAMPUS CALIFORNIA, INC., SET ONE PROPOUNDING PARTY: DEFENDANT PEAK CAMPUS CALIFORNIA, INC. RESPONDING PARTY: PLAINTIFF ANDREW CLIFTON SET: ONE Pursuant to FED. R. CIV. P. 36, Plaintiff ANDREW CLIFTON (“Plaintiff” or “Clifton”) hereby objects and responds to the Requests for Admissions propounded upon him by Defendant Peak Campus California, Inc. (“Defendant” or “Peak Campus”). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 ANDREW CLIFTON’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE PRELIMINARY STATEMENT The following objections and responses to Defendant RealPage’s Requests for Admissions are made on the basis of information that is presently known and available to Plaintiff and may include hearsay information and other information that is inadmissible at hearing. Plaintiff’s discovery, investigation and preparation for hearing are not yet completed and are continuing as of the date of these responses. Plaintiff expressly reserves the right to continue discovery and investigation herein for facts, documents, witnesses and supplemental data that may reveal information that, if presently within Plaintiff’s knowledge, would have been included in these objections and responses. Additionally, Plaintiff expressly reserves the right to supplement or modify these responses at any time in light of subsequently discovered information or documents. The following responses and objections are made expressly preserving and not waiving: (a) the right to raise in any subsequent proceeding or in the hearing of this or any other action all questions of authenticity, foundation, relevancy, materiality, privilege and evidentiary admissibility of any information or document identified or produced in response to the instant discovery request; (b) the right to object on any ground to the use or introduction into evidence of any information or document in any subsequent proceeding or in the hearing of this or any other action on any ground; and (c) the right to object on any ground at any time to additional discovery. OBJECTIONS AND RESPONSES REQUEST FOR ADMISSION NO. 1: Admit that YOU presented an application for housing to PEAK CAMPUS in January 2019 for The Post on Nord property. RESPONSE TO REQUEST FOR ADMISSION NO. 1: Admit. REQUEST FOR ADMISSION NO. 2: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 ANDREW CLIFTON’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE Admit that PEAK CAMPUS’ application for housing contained an acknowledgement that an INVESTIGATIVE CONSUMER REPORT would be run on YOU. RESPONSE TO REQUEST FOR ADMISSION NO. 2: Plaintiff objects on the grounds that this Request violates the best evidence rule, Federal Evidence Rules 1001 through 1008. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Deny. The document speaks for itself. Nowhere does it mention “investigative consumer report” or use that phrase; nowhere does it state that any report “would” or “will” be obtained. In fact, the “Lease Application Agreement” states, “We are not responsible and assume no duty for obtaining criminal history checks on any residents, occupants, guests, or contractors in the community.” If anything, this suggests that an investigative consumer report will not be procured. REQUEST FOR ADMISSION NO. 3: Admit that PEAK CAMPUS notified YOU that an INVESTIGATIVE CONSUMER REPORT would be run on YOU. RESPONSE TO REQUEST FOR ADMISSION NO. 3: Deny. REQUEST FOR ADMISSION NO. 4: Admit that after YOU presented an application for housing PEAK CAMPUS provided YOU with the contact information of the INVESTIGATIVE CONSUMER REPORTING AGENCY that generated an INVESTIGATIVE CONSUMER REPORT on YOU. RESPONSE TO REQUEST FOR ADMISSION NO. 4: Plaintiff objects to this Request as vague, overbroad, and misleading as to time. Plaintiff further objects on the grounds that this Request is vague and ambiguous in its entirety due to syntax. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Plaintiff admits that Peak Campus has provided the name and contact information of RealPage, Inc. via its Initial Disclosures in this matter. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 ANDREW CLIFTON’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE With respect to the time period prior to the initiation of this lawsuit, Plaintiff admits that Peak Campus provided the address of RealPage, Inc. (in the form of the address for “LeasingDesk Screening”), but Plaintiff denies that Peak Campus ever stated that anyone, including RealPage or “LeasingDesk Screening” had conducted or would conduct an investigative consumer report about Plaintiff. REQUEST FOR ADMISSION NO. 5: Admit that after YOU presented an application for housing PEAK CAMPUS sent YOU a letter including a hyperlink to a website where YOU could find all the instructions for how to request a copy of the INVESTIGATIVE CONSUMER REPORT which was prepared. RESPONSE TO REQUEST FOR ADMISSION NO. 5: Plaintiff objects on the grounds that this Request violates the best evidence rule, Federal Evidence Rules 1001 through 1008. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Plaintiff denies that Peak Campus ever stated, prior to the initiation of this lawsuit, that an investigative consumer report had been prepared about Plaintiff. The link provided, http://www.realpage.com/consumer-dispute, places unlawful restrictions on requests for copies of “consumer report[s].” Nowhere in the letter or the webpage linked to is it stated what information Peak Campus procured, nor is the term “investigative consumer report” ever used. Both give the distinct appearance that only a credit report was requested. The Letter speaks for itself. REQUEST FOR ADMISSION NO. 6: Admit that the letter PEAK CAMPUS sent YOU provided a means by which YOU could receive a copy of any INVESTIGATIVE CONSUMER REPORT prepared in connection with YOUR application for housing. RESPONSE TO REQUEST FOR ADMISSION NO. 6: Plaintiff objects on the grounds that this Request violates the best evidence rule, Federal Evidence Rules 1001 through 1008. Subject to the foregoing objections, consistent 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 ANDREW CLIFTON’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE with them, and without waiving them, Plaintiff responds as follows: Deny. The Letter speaks for itself. REQUEST FOR ADMISSION NO. 7: Admit that prior to filing this lawsuit YOU never attempted to access the hyperlink to a website where YOU could find all the instructions for how to request a copy of the INVESTIGATIVE CONSUMER REPORT which was prepared. RESPONSE TO REQUEST FOR ADMISSION NO. 7: Plaintiff objects to this Request on the ground that assumes facts not in evidence and is intentionally misleading. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Plaintiff denies that any hyperlink exists or existed which provides “instructions for how to request a copy of the INVESTIGATIVE CONSUMER REPORT which was prepared.” Plaintiff admits that he never accessed “http://www.realpage.com/consumer-dispute” prior to the filing of this lawsuit. That web page speaks for itself, as does the document referencing it. REQUEST FOR ADMISSION NO. 8: Admit that prior to filing this lawsuit YOU never contacted PEAK CAMPUS to request a copy of the INVESTIGATIVE CONSUMER REPORT which was prepared. RESPONSE TO REQUEST FOR ADMISSION NO. 8: Admit. Peak Campus concealed from Plaintiff that an investigative consumer report had been prepared about him, and concealed from Plaintiff his right to receive a free copy under ICRAA, and also did not provide the notices or checkbox mechanism to request a copy which ICRAA specifically and expressly requires, so Plaintiff did not request a copy from Peak Campus prior to the filing of this lawsuit. REQUEST FOR ADMISSION NO. 9: Admit that PEAK CAMPUS granted YOUR application for housing in January 2019 for The Post on Nord property RESPONSE TO REQUEST FOR ADMISSION NO. 9: Admit. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 ANDREW CLIFTON’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE REQUEST FOR ADMISSION NO. 10: Admit that YOU would have still presented an application for housing to PEAK CAMPUS regardless of whether an INVESTIGATIVE CONSUMER REPORT would be prepared about YOU. RESPONSE TO REQUEST FOR ADMISSION NO. 10: Plaintiff objects to this Request as calling for speculation and presenting an incomplete hypothetical. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Admit. REQUEST FOR ADMISSION NO. 11: Admit that a consent form or disclosure that an INVESTIGATIVE CONSUMER REPORT would be prepared about YOU as alleged in YOUR complaint is not required by California Code of Civil Procedure section 1786.16, subdivisions (a)(3) and (b)(1) in an application for housing. RESPONSE TO REQUEST FOR ADMISSION NO. 11: Plaintiff objects to this Request as calling for Plaintiff and his counsel to conduct legal research for propounding party. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Deny. The statute speaks for itself: REQUEST FOR ADMISSION NO. 12: Admit that YOU were able to rent the apartment of YOUR choice at The Post on Nord property after presenting YOUR application for housing to PEAK CAMPUS. RESPONSE TO REQUEST FOR ADMISSION NO. 12: Plaintiff objects to this Request as vague an ambiguous as to the phrase “apartment of YOUR choice.” Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Plaintiff admits that his application was granted and he subsequently resided at Post on Nord. REQUEST FOR ADMISSION NO. 13: Admit that YOU have not suffered actual damages from PEAK CAMPUS’ actions 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 ANDREW CLIFTON’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE with respect to YOUR application for housing which is the subject of YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 13: Plaintiff objects to this Request as calling for expert opinion, and objects to the extent it calls for speculation. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Deny. REQUEST FOR ADMISSION NO. 14: Admit that PEAK CAMPUS did not violate California Civil Code section 1786.16, subdivision (a) as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 14: Deny. REQUEST FOR ADMISSION NO. 15: Admit that PEAK CAMPUS did not violate California Civil Code section 1786.16, subdivision (b) as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 15: Deny. REQUEST FOR ADMISSION NO. 16: Admit that PEAK CAMPUS did not violate California Business & Professions Code section 17200 as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 16: Plaintiff objects to this Request as misstating the pleadings; Plaintiffs’ allegations are that Peak Campus violated the Unfair Competition Law, California Businesses and Professions Code Sections 17200, et sequintes, not solely Section 17200 in isolation. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Deny; Peak Campus violated the California Unfair Competition Law, California Businesses and Professions Code Sections 17200 through 17205. REQUEST FOR ADMISSION NO. 17: Admit that PEAK CAMPUS did not owe YOU a duty of care with respect to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 ANDREW CLIFTON’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE YOUR application for housing which is the subject of YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 17: Deny. REQUEST FOR ADMISSION NO. 18: Admit that YOU are not entitled to statutory damages for any violations of California Civil Code section 1786.16, subdivision (a) as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 18: Deny. REQUEST FOR ADMISSION NO. 19: Admit that YOU are not entitled to statutory damages for any violations of California Civil Code section 1786.16, subdivision (b) as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 19: Deny. REQUEST FOR ADMISSION NO. 20: Admit that no health care professional has examined YOU with respect to any illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 20: Admit. REQUEST FOR ADMISSION NO. 21: Admit that no health care professional has provided treatment to YOU with respect to any illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 21: Admit. REQUEST FOR ADMISSION NO. 22: Admit that YOU have not been diagnosed with any physical health illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 ANDREW CLIFTON’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 22: Admit. REQUEST FOR ADMISSION NO. 23: Admit that YOU have not been diagnosed with any mental health illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 23: Admit. REQUEST FOR ADMISSION NO. 24: Admit that YOU have not been diagnosed with any mental health illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 24: Plaintiff objects to this Request as repetitive and duplicative of Request No. 23. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Admit. REQUEST FOR ADMISSION NO. 25: Admit that YOU have no personal knowledge supporting the allegations in Paragraph 62 of YOUR complaint that PEAK CAMPUS’ conduct was “grossly negligent and/or willful.” RESPONSE TO REQUEST FOR ADMISSION NO. 25: Deny. LAW OFFICE OF JOSEPH B. OLLINGER PC Dated: May 4th, 2020 ________________________________________ Joe Ollinger, Esq., attorney for Plaintiffs RICHARD BURTON, ANDREW CLIFTON, KYLE LOUEY, KAITLIN KIRKPATRICK, and KIMBERLY KIRKPATRICK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFICATION ANDREW CLIFTON’S VERIFICATION OF RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE I, Andrew Clifton, declare under penalty of perjury under the laws of the United States that the foregoing responses are true and correct to the best of my knowledge. Signed this ______ day of April, 2020, at ____________________________, California. By:________________________________ Andrew Clifton 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARD BURTON’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE Joseph B. Ollinger (SBN: 285641) Law Office of Joseph B. Ollinger PC 3348 Griffith Park Blvd. #22 Los Angeles, California 90027 Telephone: (310) 424-0097 Email: josephollinger@gmail.com Attorney for Plaintiffs RICHARD BURTON, ANDREW CLIFTON, KYLE LOUEY, KAITLIN KIRKPATRICK, and KIMBERLY KIRKPATRICK UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA RICHARD BURTON, an individual; ANDREW CLIFTON, an individual; KYLE LOUEY, an individual; KAITLIN KIRKPATRICK, an individual; and KIMBERLY KIRKPATRICK, an individual, Plaintiffs, v. PEAK CAMPUS CALIFORNIA, INC., a Delaware corporation; REALPAGE, INC., a Delaware corporation; and DOES 1-20 inclusive, Defendants. Case No.: 3:19-cv-08341-VC [Assigned to Hon. Vince Chhabria - Courtroom 4] PLAINTIFFS RICHARD BURTON’S RESPONSES TO REQUESTS FOR ADMISSIONS FROM DEFENDANT PEAK CAMPUS CALIFORNIA, INC., SET ONE PROPOUNDING PARTY: DEFENDANT PEAK CAMPUS CALIFORNIA, INC. RESPONDING PARTY: PLAINTIFF RICHARD BURTON SET: ONE Pursuant to FED. R. CIV. P. 36, Plaintiff Richard Burton (“Plaintiff” or “Burton”) hereby objects and responds to the Requests for Admissions propounded upon him by Defendant Peak Campus California, Inc. (“Defendant” or “Peak Campus”). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 RICHARD BURTON’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE PRELIMINARY STATEMENT The following objections and responses to Defendant RealPage’s Requests for Admissions are made on the basis of information that is presently known and available to Plaintiff and may include hearsay information and other information that is inadmissible at hearing. Plaintiff’s discovery, investigation and preparation for hearing are not yet completed and are continuing as of the date of these responses. Plaintiff expressly reserves the right to continue discovery and investigation herein for facts, documents, witnesses and supplemental data that may reveal information that, if presently within Plaintiff’s knowledge, would have been included in these objections and responses. Additionally, Plaintiff expressly reserves the right to supplement or modify these responses at any time in light of subsequently discovered information or documents. The following responses and objections are made expressly preserving and not waiving: (a) the right to raise in any subsequent proceeding or in the hearing of this or any other action all questions of authenticity, foundation, relevancy, materiality, privilege and evidentiary admissibility of any information or document identified or produced in response to the instant discovery request; (b) the right to object on any ground to the use or introduction into evidence of any information or document in any subsequent proceeding or in the hearing of this or any other action on any ground; and (c) the right to object on any ground at any time to additional discovery. OBJECTIONS AND RESPONSES REQUEST FOR ADMISSION NO. 1: Admit that YOU presented an application for housing to PEAK CAMPUS in January 2019 for The Post on Nord property. RESPONSE TO REQUEST FOR ADMISSION NO. 1: Admit. REQUEST FOR ADMISSION NO. 2: Admit that PEAK CAMPUS’ application for housing contained an 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 RICHARD BURTON’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE acknowledgement that an INVESTIGATIVE CONSUMER REPORT would be run on YOU. In fact, the “Lease Application Agreement” states, “We are not responsible and assume no duty for obtaining criminal history checks on any residents, occupants, guests, or contractors in the community.” If anything, this suggests that an investigative consumer report will not be procured. RESPONSE TO REQUEST FOR ADMISSION NO. 2: Plaintiff objects on the grounds that this Request violates the best evidence rule, Federal Evidence Rules 1001 through 1008. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Deny. The document speaks for itself. Nowhere does it mention “investigative consumer report” or use that phrase; nowhere does it state that any report “would” or “will” be obtained. REQUEST FOR ADMISSION NO. 3: Admit that PEAK CAMPUS notified YOU that an INVESTIGATIVE CONSUMER REPORT would be run on YOU. RESPONSE TO REQUEST FOR ADMISSION NO. 3: Deny. REQUEST FOR ADMISSION NO. 4: Admit that after YOU presented an application for housing PEAK CAMPUS provided YOU with the contact information of the INVESTIGATIVE CONSUMER REPORTING AGENCY that generated an INVESTIGATIVE CONSUMER REPORT on YOU. RESPONSE TO REQUEST FOR ADMISSION NO. 4: Plaintiff objects to this Request as vague, overbroad, and misleading as to time. Plaintiff further objects on the grounds that this Request is vague and ambiguous in its entirety due to syntax. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Plaintiff admits that Peak Campus has provided the name and contact information of RealPage, Inc. via its Initial Disclosures in this matter. With respect to the time period prior to the initiation of this lawsuit, Plaintiff admits that Peak 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 RICHARD BURTON’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE Campus provided the address of RealPage, Inc. (in the form of the address for “LeasingDesk Screening”), but Plaintiff denies that Peak Campus ever stated that anyone, including RealPage or “LeasingDesk Screening” had conducted or would conduct an investigative consumer report about Plaintiff. REQUEST FOR ADMISSION NO. 5: Admit that after YOU presented an application for housing PEAK CAMPUS sent YOU a letter including a hyperlink to a website where YOU could find all the instructions for how to request a copy of the INVESTIGATIVE CONSUMER REPORT which was prepared. RESPONSE TO REQUEST FOR ADMISSION NO. 5: Plaintiff objects on the grounds that this Request violates the best evidence rule, Federal Evidence Rules 1001 through 1008. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Plaintiff denies that Peak Campus ever stated, prior to the initiation of this lawsuit, that an investigative consumer report had been prepared about Plaintiff. The link provided, http://www.realpage.com/consumer-dispute, places unlawful restrictions on requests for copies of “consumer report[s].” Nowhere in the letter or the webpage linked to is it stated what information Peak Campus procured, nor is the term “investigative consumer report” ever used. Both give the distinct appearance that only a credit report was requested. The Letter speaks for itself, as does the web page. REQUEST FOR ADMISSION NO. 6: Admit that the letter PEAK CAMPUS sent YOU provided a means by which YOU could receive a copy of any INVESTIGATIVE CONSUMER REPORT prepared in connection with YOUR application for housing. RESPONSE TO REQUEST FOR ADMISSION NO. 6: Plaintiff objects on the grounds that this Request violates the best evidence rule, Federal Evidence Rules 1001 through 1008. Subject to the foregoing objections, consistent 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 RICHARD BURTON’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE with them, and without waiving them, Plaintiff responds as follows: Deny. The Letter speaks for itself. REQUEST FOR ADMISSION NO. 7: Admit that prior to filing this lawsuit YOU never attempted to access the hyperlink to a website where YOU could find all the instructions for how to request a copy of the INVESTIGATIVE CONSUMER REPORT which was prepared. RESPONSE TO REQUEST FOR ADMISSION NO. 7: Plaintiff objects to this Request on the ground that assumes facts not in evidence and is intentionally misleading. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Plaintiff denies that any hyperlink exists or existed which provides “instructions for how to request a copy of the INVESTIGATIVE CONSUMER REPORT which was prepared.” Plaintiff admits that he never accessed “http://www.realpage.com/consumer-dispute” prior to the filing of this lawsuit. That web page speaks for itself, as does the document referencing it. REQUEST FOR ADMISSION NO. 8: Admit that prior to filing this lawsuit YOU never contacted PEAK CAMPUS to request a copy of the INVESTIGATIVE CONSUMER REPORT which was prepared. RESPONSE TO REQUEST FOR ADMISSION NO. 8: Admit. Peak Campus concealed from Plaintiff that an investigative consumer report had been prepared about him, and concealed from Plaintiff his right to receive a free copy under ICRAA, and also did not provide the notices or checkbox mechanism to request a copy which ICRAA specifically and expressly requires, so Plaintiff did not request a copy from Peak Campus prior to the filing of this lawsuit. REQUEST FOR ADMISSION NO. 9: Admit that PEAK CAMPUS granted YOUR application for housing in January 2019 for The Post on Nord property RESPONSE TO REQUEST FOR ADMISSION NO. 9: Admit. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 RICHARD BURTON’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE REQUEST FOR ADMISSION NO. 10: Admit that YOU would have still presented an application for housing to PEAK CAMPUS regardless of whether an INVESTIGATIVE CONSUMER REPORT would be prepared about YOU. RESPONSE TO REQUEST FOR ADMISSION NO. 10: Plaintiff objects to this Request as calling for speculation and presenting an incomplete hypothetical. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Admit. REQUEST FOR ADMISSION NO. 11: Admit that a consent form or disclosure that an INVESTIGATIVE CONSUMER REPORT would be prepared about YOU as alleged in YOUR complaint is not required by California Code of Civil Procedure section 1786.16, subdivisions (a)(3) and (b)(1) in an application for housing. RESPONSE TO REQUEST FOR ADMISSION NO. 11: Plaintiff objects to this Request as calling for Plaintiff and his counsel to conduct legal research for propounding party. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Deny. The statute speaks for itself: REQUEST FOR ADMISSION NO. 12: Admit that YOU were able to rent the apartment of YOUR choice at The Post on Nord property after presenting YOUR application for housing to PEAK CAMPUS. RESPONSE TO REQUEST FOR ADMISSION NO. 12: Plaintiff objects to this Request as vague an ambiguous as to the phrase “apartment of YOUR choice.” Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Plaintiff admits that his application was granted and he subsequently resided at Post on Nord. REQUEST FOR ADMISSION NO. 13: Admit that YOU have not suffered actual damages from PEAK CAMPUS’ actions 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 RICHARD BURTON’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE with respect to YOUR application for housing which is the subject of YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 13: Plaintiff objects to this Request as calling for expert opinion, and objects to the extent it calls for speculation. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Deny. REQUEST FOR ADMISSION NO. 14: Admit that PEAK CAMPUS did not violate California Civil Code section 1786.16, subdivision (a) as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 14: Deny. REQUEST FOR ADMISSION NO. 15: Admit that PEAK CAMPUS did not violate California Civil Code section 1786.16, subdivision (b) as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 15: Deny. REQUEST FOR ADMISSION NO. 16: Admit that PEAK CAMPUS did not violate California Business & Professions Code section 17200 as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 16: Plaintiff objects to this Request as misstating the pleadings; Plaintiffs’ allegations are that Peak Campus violated the Unfair Competition Law, California Businesses and Professions Code Sections 17200, et sequintes, not solely Section 17200 in isolation. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Deny; Peak Campus violated the California Unfair Competition Law, California Businesses and Professions Code Sections 17200 through 17205. REQUEST FOR ADMISSION NO. 17: Admit that PEAK CAMPUS did not owe YOU a duty of care with respect to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 RICHARD BURTON’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE YOUR application for housing which is the subject of YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 17: Deny. REQUEST FOR ADMISSION NO. 18: Admit that YOU are not entitled to statutory damages for any violations of California Civil Code section 1786.16, subdivision (a) as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 18: Deny. REQUEST FOR ADMISSION NO. 19: Admit that YOU are not entitled to statutory damages for any violations of California Civil Code section 1786.16, subdivision (b) as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 19: Deny. REQUEST FOR ADMISSION NO. 20: Admit that no health care professional has examined YOU with respect to any illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 20: Admit. REQUEST FOR ADMISSION NO. 21: Admit that no health care professional has provided treatment to YOU with respect to any illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 21: Admit. REQUEST FOR ADMISSION NO. 22: Admit that YOU have not been diagnosed with any physical health illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 RICHARD BURTON’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 22: Admit. REQUEST FOR ADMISSION NO. 23: Admit that YOU have not been diagnosed with any mental health illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 23: Admit. REQUEST FOR ADMISSION NO. 24: Admit that YOU have not been diagnosed with any mental health illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 24: Plaintiff objects to this Request as repetitive and duplicative of Request No. 23. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Admit. REQUEST FOR ADMISSION NO. 25: Admit that YOU have no personal knowledge supporting the allegations in Paragraph 62 of YOUR complaint that PEAK CAMPUS’ conduct was “grossly negligent and/or willful.” RESPONSE TO REQUEST FOR ADMISSION NO. 25: Deny. LAW OFFICE OF JOSEPH B. OLLINGER PC Dated: May 4th, 2020 ________________________________________ Joe Ollinger, Esq., attorney for Plaintiffs RICHARD BURTON, ANDREW CLIFTON, KYLE LOUEY, KAITLIN KIRKPATRICK, and KIMBERLY KIRKPATRICK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFICATION RICHARD BURTON’S VERIFICATION OF RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE I, Richard Burton, declare under penalty of perjury under the laws of the United States that the foregoing responses are true and correct to the best of my knowledge. Signed this __26_ day of April, 2020, at ______Livermore____, California. By:________________________________ Richard Burton 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KIMBERLY KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE Joseph B. Ollinger (SBN: 285641) Law Office of Joseph B. Ollinger PC 3348 Griffith Park Blvd. #22 Los Angeles, California 90027 Telephone: (310) 424-0097 Email: josephollinger@gmail.com Attorney for Plaintiffs RICHARD BURTON, ANDREW CLIFTON, KYLE LOUEY, KAITLIN KIRKPATRICK, and KIMBERLY KIRKPATRICK UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA RICHARD BURTON, an individual; ANDREW CLIFTON, an individual; KYLE LOUEY, an individual; KAITLIN KIRKPATRICK, an individual; and KIMBERLY KIRKPATRICK, an individual, Plaintiffs, v. PEAK CAMPUS CALIFORNIA, INC., a Delaware corporation; REALPAGE, INC., a Delaware corporation; and DOES 1-20 inclusive, Defendants. Case No.: 3:19-cv-08341-VC [Assigned to Hon. Vince Chhabria - Courtroom 4] PLAINTIFF KAITLIN KIRKPATRICK’S RESPONSES TO REQUESTS FOR ADMISSIONS FROM DEFENDANT PEAK CAMPUS CALIFORNIA, INC., SET ONE PROPOUNDING PARTY: DEFENDANT PEAK CAMPUS CALIFORNIA, INC. RESPONDING PARTY: PLAINTIFF KIMBELRY KIRKPATRICK SET: ONE Pursuant to FED. R. CIV. P. 36, Plaintiff KIMBRLY KIRKPATRICK (“Plaintiff” or “Kimberly”) hereby objects and responds to the Requests for Admissions propounded upon her by Defendant Peak Campus California, Inc. (“Defendant” or “Peak Campus”). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 KIMBERLY KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE PRELIMINARY STATEMENT The following objections and responses to Defendant RealPage’s Requests for Admissions are made on the basis of information that is presently known and available to Plaintiff and may include hearsay information and other information that is inadmissible at hearing. Plaintiff’s discovery, investigation and preparation for hearing are not yet completed and are continuing as of the date of these responses. Plaintiff expressly reserves the right to continue discovery and investigation herein for facts, documents, witnesses and supplemental data that may reveal information that, if presently within Plaintiff’s knowledge, would have been included in these objections and responses. Additionally, Plaintiff expressly reserves the right to supplement or modify these responses at any time in light of subsequently discovered information or documents. The following responses and objections are made expressly preserving and not waiving: (a) the right to raise in any subsequent proceeding or in the hearing of this or any other action all questions of authenticity, foundation, relevancy, materiality, privilege and evidentiary admissibility of any information or document identified or produced in response to the instant discovery request; (b) the right to object on any ground to the use or introduction into evidence of any information or document in any subsequent proceeding or in the hearing of this or any other action on any ground; and (c) the right to object on any ground at any time to additional discovery. OBJECTIONS AND RESPONSES REQUEST FOR ADMISSION NO. 1: Admit that YOU presented an application for housing guarantor to PEAK CAMPUS in January 2019 for The Post on Nord property. RESPONSE TO REQUEST FOR ADMISSION NO. 1: Plaintiff admits that she submitted an application to Peak Campus serve as a guarantor on a lease at Post on Nord, in or around January 2019. REQUEST FOR ADMISSION NO. 2: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 KIMBERLY KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE Admit that PEAK CAMPUS’ application for housing guarantor contained an acknowledgement that an INVESTIGATIVE CONSUMER REPORT would be run on YOU. RESPONSE TO REQUEST FOR ADMISSION NO. 2: Plaintiff objects on the grounds that this Request violates the best evidence rule, Federal Evidence Rules 1001 through 1008. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Deny. The document speaks for itself. Nowhere does it mention “investigative consumer report” or use that phrase; nowhere does it state that any report “would” or “will” be obtained. In fact, the “Lease Application Agreement” states, “We are not responsible and assume no duty for obtaining criminal history checks on any residents, occupants, guests, or contractors in the community.” If anything, this suggests that an investigative consumer report will not be procured. REQUEST FOR ADMISSION NO. 3: Admit that PEAK CAMPUS notified YOU that an INVESTIGATIVE CONSUMER REPORT would be run on YOU. RESPONSE TO REQUEST FOR ADMISSION NO. 3: Deny. REQUEST FOR ADMISSION NO. 4: Admit that after YOU presented an application for housing guarantor PEAK CAMPUS provided YOU with the contact information of the INVESTIGATIVE CONSUMER REPORTING AGENCY that generated an INVESTIGATIVE CONSUMER REPORT on YOU. RESPONSE TO REQUEST FOR ADMISSION NO. 4: Plaintiff objects to this Request as vague, overbroad, and misleading as to time. Plaintiff further objects on the grounds that this Request is vague and ambiguous in its entirety due to syntax. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Plaintiff admits that Peak Campus has provided the name and contact information of RealPage, Inc. via its Initial Disclosures in this matter. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 KIMBERLY KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE With respect to the time period prior to the initiation of this lawsuit, Plaintiff admits that Peak Campus provided the address of RealPage, Inc. (in the form of the address for “LeasingDesk Screening”), but Plaintiff denies that Peak Campus ever stated that anyone, including RealPage or “LeasingDesk Screening” had conducted or would conduct an investigative consumer report about Plaintiff. REQUEST FOR ADMISSION NO. 5: Admit that after YOU presented an application for housing guarantor PEAK CAMPUS sent YOU a letter including a hyperlink to a website where YOU could find all the instructions for how to request a copy of the INVESTIGATIVE CONSUMER REPORT which was prepared. RESPONSE TO REQUEST FOR ADMISSION NO. 5: Plaintiff objects on the grounds that this Request violates the best evidence rule, Federal Evidence Rules 1001 through 1008. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Plaintiff denies that Peak Campus ever stated, prior to the initiation of this lawsuit, that an investigative consumer report had been prepared about Plaintiff. The link provided, http://www.realpage.com/consumer-dispute, places unlawful restrictions on requests for copies of “consumer report[s].” Nowhere in the letter or the webpage linked to is it stated what information Peak Campus obtained, nor is the term “investigative consumer report” ever used. Both give the distinct appearance that only a credit report was requested. The Letter speaks for itself. REQUEST FOR ADMISSION NO. 6: Admit that the letter PEAK CAMPUS sent YOU provided a means by which YOU could receive a copy of any INVESTIGATIVE CONSUMER REPORT prepared in connection with YOUR application for housing guarantor. RESPONSE TO REQUEST FOR ADMISSION NO. 6: Plaintiff objects on the grounds that this Request violates the best evidence rule, Federal Evidence Rules 1001 through 1008. Subject to the foregoing objections, consistent 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 KIMBERLY KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE with them, and without waiving them, Plaintiff responds as follows: Deny. The Letter speaks for itself. REQUEST FOR ADMISSION NO. 7: Admit that prior to filing this lawsuit YOU never attempted to access the hyperlink to a website where YOU could find all the instructions for how to request a copy of the INVESTIGATIVE CONSUMER REPORT which was prepared. RESPONSE TO REQUEST FOR ADMISSION NO. 7: Plaintiff objects to this Request on the ground that assumes facts not in evidence and is intentionally misleading. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Plaintiff denies that any hyperlink exists or existed which provides “instructions for how to request a copy of the INVESTIGATIVE CONSUMER REPORT which was prepared.” Plaintiff admits that she never accessed “http://www.realpage.com/consumer-dispute” prior to the filing of this lawsuit. That web page speaks for itself, as does the document referencing it. REQUEST FOR ADMISSION NO. 8: Admit that prior to filing this lawsuit YOU never contacted PEAK CAMPUS to request a copy of the INVESTIGATIVE CONSUMER REPORT which was prepared. RESPONSE TO REQUEST FOR ADMISSION NO. 8: Admit. Peak Campus concealed from Plaintiff that an investigative consumer report had been prepared about her, and concealed from Plaintiff her right to receive a free copy under ICRAA, and also did not provide the notices or checkbox mechanism to request a copy which ICRAA specifically and expressly requires, so Plaintiff did not request a copy from Peak Campus prior to the filing of this lawsuit. REQUEST FOR ADMISSION NO. 9: Admit that PEAK CAMPUS granted YOUR application for housing guarantor in January 2019 for The Post on Nord property RESPONSE TO REQUEST FOR ADMISSION NO. 9: Admit. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 KIMBERLY KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE REQUEST FOR ADMISSION NO. 10: Admit that YOU would have still presented an application for housing guarantor to PEAK CAMPUS regardless of whether an INVESTIGATIVE CONSUMER REPORT would be prepared about YOU. RESPONSE TO REQUEST FOR ADMISSION NO. 10: Plaintiff objects to this Request as calling for speculation and presenting an incomplete hypothetical. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Admit. REQUEST FOR ADMISSION NO. 11: Admit that a consent form or disclosure that an INVESTIGATIVE CONSUMER REPORT would be prepared about YOU as alleged in YOUR complaint is not required by California Code of Civil Procedure section 1786.16, subdivisions (a)(3) and (b)(1) in an application for housing. RESPONSE TO REQUEST FOR ADMISSION NO. 11: Plaintiff objects to this Request as calling for Plaintiff and her counsel to conduct legal research for propounding party. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Deny. The statute speaks for itself: REQUEST FOR ADMISSION NO. 12: Admit that YOU were able to rent the apartment of YOUR choice at The Post on Nord property after presenting YOUR application for housing to PEAK CAMPUS. RESPONSE TO REQUEST FOR ADMISSION NO. 12: Plaintiff objects to this Request as vague an ambiguous as to the phrase “apartment of YOUR choice.” Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Plaintiff admits that her application was granted and she subsequently resided at Post on Nord. REQUEST FOR ADMISSION NO. 13: Admit that YOU have not suffered actual damages from PEAK CAMPUS’ actions 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 KIMBERLY KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE with respect to YOUR application for housing which is the subject of YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 13: Plaintiff objects to this Request as calling for expert opinion, and objects to the extent it calls for speculation. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Deny. REQUEST FOR ADMISSION NO. 14: Admit that PEAK CAMPUS did not violate California Civil Code section 1786.16, subdivision (a) as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 14: Deny. REQUEST FOR ADMISSION NO. 15: Admit that PEAK CAMPUS did not violate California Civil Code section 1786.16, subdivision (b) as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 15: Deny. REQUEST FOR ADMISSION NO. 16: Admit that PEAK CAMPUS did not violate California Business & Professions Code section 17200 as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 16: Plaintiff objects to this Request as misstating the pleadings; Plaintiffs’ allegations are that Peak Campus violated the Unfair Competition Law, California Businesses and Professions Code Sections 17200, et sequintes, not solely Section 17200 in isolation. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Deny; Peak Campus violated the California Unfair Competition Law, California Businesses and Professions Code Sections 17200 through 17205. REQUEST FOR ADMISSION NO. 17: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 KIMBERLY KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE Admit that PEAK CAMPUS did not owe YOU a duty of care with respect to YOUR application for housing which is the subject of YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 17: Deny. REQUEST FOR ADMISSION NO. 18: Admit that YOU are not entitled to statutory damages for any violations of California Civil Code section 1786.16, subdivision (a) as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 18: Deny. REQUEST FOR ADMISSION NO. 19: Admit that YOU are not entitled to statutory damages for any violations of California Civil Code section 1786.16, subdivision (b) as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 19: Deny. REQUEST FOR ADMISSION NO. 20: Admit that no health care professional has examined YOU with respect to any illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 20: Admit. REQUEST FOR ADMISSION NO. 21: Admit that no health care professional has provided treatment to YOU with respect to any illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 21: Admit. REQUEST FOR ADMISSION NO. 22: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 KIMBERLY KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE Admit that YOU have not been diagnosed with any physical health illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 22: Admit. REQUEST FOR ADMISSION NO. 23: Admit that YOU have not been diagnosed with any mental health illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 23: Admit. REQUEST FOR ADMISSION NO. 24: Admit that YOU have not been diagnosed with any mental health illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 24: Plaintiff objects to this Request as repetitive and duplicative of Request No. 23. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Admit. REQUEST FOR ADMISSION NO. 25: Admit that YOU have no personal knowledge supporting the allegations in Paragraph 62 of YOUR complaint that PEAK CAMPUS’ conduct was “grossly negligent and/or willful.” 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 KIMBERLY KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE RESPONSE TO REQUEST FOR ADMISSION NO. 25: Deny. LAW OFFICE OF JOSEPH B. OLLINGER PC Dated: May 4th, 2020 ________________________________________ Joe Ollinger, Esq., attorney for Plaintiffs RICHARD BURTON, ANDREW CLIFTON, KYLE LOUEY, KAITLIN KIRKPATRICK, and KIMBERLY KIRKPATRICK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KAITLIN KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE Joseph B. Ollinger (SBN: 285641) Law Office of Joseph B. Ollinger PC 3348 Griffith Park Blvd. #22 Los Angeles, California 90027 Telephone: (310) 424-0097 Email: josephollinger@gmail.com Attorney for Plaintiffs RICHARD BURTON, ANDREW CLIFTON, KYLE LOUEY, KAITLIN KIRKPATRICK, and KIMBERLY KIRKPATRICK UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA RICHARD BURTON, an individual; ANDREW CLIFTON, an individual; KYLE LOUEY, an individual; KAITLIN KIRKPATRICK, an individual; and KIMBERLY KIRKPATRICK, an individual, Plaintiffs, v. PEAK CAMPUS CALIFORNIA, INC., a Delaware corporation; REALPAGE, INC., a Delaware corporation; and DOES 1-20 inclusive, Defendants. Case No.: 3:19-cv-08341-VC [Assigned to Hon. Vince Chhabria - Courtroom 4] PLAINTIFF KAITLIN KIRKPATRICK’S RESPONSES TO REQUESTS FOR ADMISSIONS FROM DEFENDANT PEAK CAMPUS CALIFORNIA, INC., SET ONE PROPOUNDING PARTY: DEFENDANT PEAK CAMPUS CALIFORNIA, INC. RESPONDING PARTY: PLAINTIFF KAITLIN KIRKPATRICK SET: ONE Pursuant to FED. R. CIV. P. 36, Plaintiff KAITLIN KIRKPATRICK (“Plaintiff” or “Kaitlin”) hereby objects and responds to the Requests for Admissions propounded upon her by Defendant Peak Campus California, Inc. (“Defendant” or “Peak Campus”). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 KAITLIN KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE PRELIMINARY STATEMENT The following objections and responses to Defendant RealPage’s Requests for Admissions are made on the basis of information that is presently known and available to Plaintiff and may include hearsay information and other information that is inadmissible at hearing. Plaintiff’s discovery, investigation and preparation for hearing are not yet completed and are continuing as of the date of these responses. Plaintiff expressly reserves the right to continue discovery and investigation herein for facts, documents, witnesses and supplemental data that may reveal information that, if presently within Plaintiff’s knowledge, would have been included in these objections and responses. Additionally, Plaintiff expressly reserves the right to supplement or modify these responses at any time in light of subsequently discovered information or documents. The following responses and objections are made expressly preserving and not waiving: (a) the right to raise in any subsequent proceeding or in the hearing of this or any other action all questions of authenticity, foundation, relevancy, materiality, privilege and evidentiary admissibility of any information or document identified or produced in response to the instant discovery request; (b) the right to object on any ground to the use or introduction into evidence of any information or document in any subsequent proceeding or in the hearing of this or any other action on any ground; and (c) the right to object on any ground at any time to additional discovery. OBJECTIONS AND RESPONSES REQUEST FOR ADMISSION NO. 1: Admit that YOU presented an application for housing to PEAK CAMPUS in January 2019 for The Post on Nord property. RESPONSE TO REQUEST FOR ADMISSION NO. 1: Admit. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 KAITLIN KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE REQUEST FOR ADMISSION NO. 2: Admit that PEAK CAMPUS’ application for housing contained an acknowledgement that an INVESTIGATIVE CONSUMER REPORT would be run on YOU. RESPONSE TO REQUEST FOR ADMISSION NO. 2: Plaintiff objects on the grounds that this Request violates the best evidence rule, Federal Evidence Rules 1001 through 1008. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Deny. The document speaks for itself. Nowhere does it mention “investigative consumer report” or use that phrase; nowhere does it state that any report “would” or “will” be obtained. In fact, the “Lease Application Agreement” states, “We are not responsible and assume no duty for obtaining criminal history checks on any residents, occupants, guests, or contractors in the community.” If anything, this suggests that an investigative consumer report will not be procured. REQUEST FOR ADMISSION NO. 3: Admit that PEAK CAMPUS notified YOU that an INVESTIGATIVE CONSUMER REPORT would be run on YOU. RESPONSE TO REQUEST FOR ADMISSION NO. 3: Deny. REQUEST FOR ADMISSION NO. 4: Admit that after YOU presented an application for housing PEAK CAMPUS provided YOU with the contact information of the INVESTIGATIVE CONSUMER REPORTING AGENCY that generated an INVESTIGATIVE CONSUMER REPORT on YOU. RESPONSE TO REQUEST FOR ADMISSION NO. 4: Plaintiff objects to this Request as vague, overbroad, and misleading as to time. Plaintiff further objects on the grounds that this Request is vague and ambiguous in its entirety due to syntax. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Plaintiff admits that Peak Campus has provided 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 KAITLIN KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE the name and contact information of RealPage, Inc. via its Initial Disclosures in this matter. With respect to the time period prior to the initiation of this lawsuit, Plaintiff admits that Peak Campus provided the address of RealPage, Inc. (in the form of the address for “LeasingDesk Screening”), but Plaintiff denies that Peak Campus ever stated that anyone, including RealPage or “LeasingDesk Screening” had conducted or would conduct an investigative consumer report about Plaintiff. REQUEST FOR ADMISSION NO. 5: Admit that after YOU presented an application for housing PEAK CAMPUS sent YOU a letter including a hyperlink to a website where YOU could find all the instructions for how to request a copy of the INVESTIGATIVE CONSUMER REPORT which was prepared. RESPONSE TO REQUEST FOR ADMISSION NO. 5: Plaintiff objects on the grounds that this Request violates the best evidence rule, Federal Evidence Rules 1001 through 1008. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Plaintiff denies that Peak Campus ever stated, prior to the initiation of this lawsuit, that an investigative consumer report had been prepared about Plaintiff. The link provided, http://www.realpage.com/consumer-dispute, places unlawful restrictions on requests for copies of “consumer report[s].” Nowhere in the letter or the webpage linked to is it stated what information Peak Campus procured, nor is the term “investigative consumer report” ever used. Both give the distinct appearance that only a credit report was requested. The Letter speaks for itself. REQUEST FOR ADMISSION NO. 6: Admit that the letter PEAK CAMPUS sent YOU provided a means by which YOU could receive a copy of any INVESTIGATIVE CONSUMER REPORT prepared in connection with YOUR application for housing. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 KAITLIN KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE RESPONSE TO REQUEST FOR ADMISSION NO. 6: Plaintiff objects on the grounds that this Request violates the best evidence rule, Federal Evidence Rules 1001 through 1008. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Deny. The Letter speaks for itself. REQUEST FOR ADMISSION NO. 7: Admit that prior to filing this lawsuit YOU never attempted to access the hyperlink to a website where YOU could find all the instructions for how to request a copy of the INVESTIGATIVE CONSUMER REPORT which was prepared. RESPONSE TO REQUEST FOR ADMISSION NO. 7: Plaintiff objects to this Request on the ground that assumes facts not in evidence and is intentionally misleading. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Plaintiff denies that any hyperlink exists or existed which provides “instructions for how to request a copy of the INVESTIGATIVE CONSUMER REPORT which was prepared.” Plaintiff admits that she never accessed “http://www.realpage.com/consumer-dispute” prior to the filing of this lawsuit. That web page speaks for itself, as does the document referencing it. REQUEST FOR ADMISSION NO. 8: Admit that prior to filing this lawsuit YOU never contacted PEAK CAMPUS to request a copy of the INVESTIGATIVE CONSUMER REPORT which was prepared. RESPONSE TO REQUEST FOR ADMISSION NO. 8: Admit. Peak Campus concealed from Plaintiff that an investigative consumer report had been prepared about her, and concealed from Plaintiff her right to receive a free copy under ICRAA, and also did not provide the notices or checkbox mechanism to request a copy which ICRAA specifically and expressly requires, so Plaintiff did not request a copy from Peak Campus prior to the filing of this lawsuit. REQUEST FOR ADMISSION NO. 9: Admit that PEAK CAMPUS granted YOUR application for housing in January 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 KAITLIN KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE 2019 for The Post on Nord property RESPONSE TO REQUEST FOR ADMISSION NO. 9: Admit. REQUEST FOR ADMISSION NO. 10: Admit that YOU would have still presented an application for housing to PEAK CAMPUS regardless of whether an INVESTIGATIVE CONSUMER REPORT would be prepared about YOU. RESPONSE TO REQUEST FOR ADMISSION NO. 10: Plaintiff objects to this Request as calling for speculation and presenting an incomplete hypothetical. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Admit. REQUEST FOR ADMISSION NO. 11: Admit that a consent form or disclosure that an INVESTIGATIVE CONSUMER REPORT would be prepared about YOU as alleged in YOUR complaint is not required by California Code of Civil Procedure section 1786.16, subdivisions (a)(3) and (b)(1) in an application for housing. RESPONSE TO REQUEST FOR ADMISSION NO. 11: Plaintiff objects to this Request as calling for Plaintiff and her counsel to conduct legal research for propounding party. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Deny. The statute speaks for itself: REQUEST FOR ADMISSION NO. 12: Admit that YOU were able to rent the apartment of YOUR choice at The Post on Nord property after presenting YOUR application for housing to PEAK CAMPUS. RESPONSE TO REQUEST FOR ADMISSION NO. 12: Plaintiff objects to this Request as vague an ambiguous as to the phrase “apartment of YOUR choice.” Subject to the foregoing objections, consistent with them, and without 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 KAITLIN KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE waiving them, Plaintiff responds as follows: Plaintiff admits that her application was granted and she subsequently resided at Post on Nord. REQUEST FOR ADMISSION NO. 13: Admit that YOU have not suffered actual damages from PEAK CAMPUS’ actions with respect to YOUR application for housing which is the subject of YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 13: Plaintiff objects to this Request as calling for expert opinion, and objects to the extent it calls for speculation. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Deny. REQUEST FOR ADMISSION NO. 14: Admit that PEAK CAMPUS did not violate California Civil Code section 1786.16, subdivision (a) as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 14: Deny. REQUEST FOR ADMISSION NO. 15: Admit that PEAK CAMPUS did not violate California Civil Code section 1786.16, subdivision (b) as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 15: Deny. REQUEST FOR ADMISSION NO. 16: Admit that PEAK CAMPUS did not violate California Business & Professions Code section 17200 as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 16: Plaintiff objects to this Request as misstating the pleadings; Plaintiffs’ allegations are that Peak Campus violated the Unfair Competition Law, California Businesses and Professions Code Sections 17200, et sequintes, not solely Section 17200 in isolation. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Deny; Peak Campus violated the California Unfair 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 KAITLIN KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE Competition Law, California Businesses and Professions Code Sections 17200 through 17205. REQUEST FOR ADMISSION NO. 17: Admit that PEAK CAMPUS did not owe YOU a duty of care with respect to YOUR application for housing which is the subject of YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 17: Deny. REQUEST FOR ADMISSION NO. 18: Admit that YOU are not entitled to statutory damages for any violations of California Civil Code section 1786.16, subdivision (a) as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 18: Deny. REQUEST FOR ADMISSION NO. 19: Admit that YOU are not entitled to statutory damages for any violations of California Civil Code section 1786.16, subdivision (b) as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 19: Deny. REQUEST FOR ADMISSION NO. 20: Admit that no health care professional has examined YOU with respect to any illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 20: Admit. REQUEST FOR ADMISSION NO. 21: Admit that no health care professional has provided treatment to YOU with respect to any illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 21: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 KAITLIN KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE Admit. REQUEST FOR ADMISSION NO. 22: Admit that YOU have not been diagnosed with any physical health illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 22: Admit. REQUEST FOR ADMISSION NO. 23: Admit that YOU have not been diagnosed with any mental health illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 23: Admit. REQUEST FOR ADMISSION NO. 24: Admit that YOU have not been diagnosed with any mental health illness, condition, disease, or disorder as a result of PEAK CAMPUS’ conduct as alleged in YOUR complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 24: Plaintiff objects to this Request as repetitive and duplicative of Request No. 23. Subject to the foregoing objections, consistent with them, and without waiving them, Plaintiff responds as follows: Admit. REQUEST FOR ADMISSION NO. 25: Admit that YOU have no personal knowledge supporting the allegations in Paragraph 62 of YOUR complaint that PEAK CAMPUS’ conduct was “grossly negligent and/or willful.” 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 KAITLIN KIRKPATRICK’S RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE RESPONSE TO REQUEST FOR ADMISSION NO. 25: Deny. LAW OFFICE OF JOSEPH B. OLLINGER PC Dated: May 4th, 2020 ________________________________________ Joe Ollinger, Esq., attorney for Plaintiffs RICHARD BURTON, ANDREW CLIFTON, KYLE LOUEY, KAITLIN KIRKPATRICK, and KIMBERLY KIRKPATRICK 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFICATION KAITLIN KIRKPATRICK’S VERIFICATION OF RESPONSES TO PEAK CAMPUS CALIFORNIA, INC.’S REQUESTS FOR ADMISSIONS, SET ONE I, Kaitlin Kirkpatrick, declare under penalty of perjury under the laws of the United States that the foregoing responses are true and correct to the best of my knowledge. EXHIBIT G 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST AMENDED COMPLAINT Joseph B. Ollinger (SBN: 285641) Law Office of Joseph B. Ollinger PC 3348 Griffith Park Blvd. #22 Los Angeles, California 90027 Telephone: (310) 424-0097 Email: josephollinger@gmail.com Attorney for Plaintiffs RICHARD BURTON, ANDREW CLIFTON, KYLE LOUEY, KAITLIN KIRKPATRICK, and KIMBERLY KIRKPATRICK SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO RICHARD BURTON, an individual; ANDREW CLIFTON, an individual; KAITLIN KIRKPATRICK, an individual; and KIMBERLY KIRKPATRICK, an individual, Plaintiffs, v. EVEREST CAMPUS CALIFORNIA, INC., a Delaware corporation; and DOES 1-20 inclusive, Defendants. Case No.: CGC-19-580946 FIRST AMENDED COMPLAINT FOR DAMAGES 1. ICRAA - Cal. Civ. Code §§ 1786 - 1786.60 2. Unfair Business Practices - Cal. Bus. & Profs. Code §§ 17200, et. seq. 3. Negligence Per Se DEMAND FOR JURY TRIAL COMPLAINT FOR DAMAGES Plaintiffs RICHARD BURTON (“Burton”), ANDREW CLIFTON (“Clifton”), KAITLIN KIRKPATRICK (“Kaitlin”), and KIMBERLY KIRKPATRICK (“Kimberly”) complain and allege as follows: THE PARTIES 1. Plaintiff Richard Burton is an individual residing in the State of California, and was a prospective tenant at the building known as The Post On Nord (“the Building” or “Post on Nord”), located at 1200 Nord Avenue, Chico, California 95926. Plaintiff Richard Burton is currently a tenant in the Building. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 FIRST AMENDED COMPLAINT 2. Plaintiff Andrew Clifton is an individual residing in the State of California, and was a prospective tenant at the Building. Plaintiff Andrew Clifton is currently a tenant in the Building. 3. Plaintiff Kaitlin Kirkpatrick is an individual residing in the State of California, and was a prospective tenant at the Building. Plaintiff Kaitlin Kirkpatrick is currently a tenant in the Building. 4. Plaintiff Kimberly Kirkpatrick is an individual residing in the State of California, and was a prospective guarantor for an apartment at the Building. Plaintiff Kimberly Kirkpatrick is currently a guarantor on Plaintiff Kaitlin Kirkpatrick’s lease. 5. Plaintiff Kyle Louey is an individual residing in the State of California, and was a prospective tenant at the Building. Plaintiff Kyle Louey is currently a tenant in the Building. 6. Defendant EVEREST CAMPUS CALIFORNIA, INC. (“Defendant” or “Everest”) was and is a Delaware corporation with its principle place of business at 2970 Clairmont Road, Suite #310, Atlanta, Georgia 30329. At all times relevant herein, Defendant Everest was the manager of the Building and held itself out as such. 7. Defendant Everest was and is a real estate developer, property owner, property management company, and lessor of a large number of housing units across California. 8. The Everest/Peak Campus group of companies manages and leases out over twelve thousand (12,000) housing units to over forty-eight thousand (47,000) tenants in over sixty-five (65) large, multi-unit buildings across the United States. 9. Plaintiffs are unaware of the true names of Defendants Does 1 through 20. Said Defendants are sued by said fictitious names. The pleadings will be amended as necessary to obtain relief against Defendants Does 1 through 20 when the true names and capacities are ascertained or when such facts pertaining to their liability are ascertained, or as permitted by law or by the Court. They include all parent companies of, subsidiaries of, and companies owned by the named Defendants. They may also include the other owners and other managers of the Building, any third-party reporting entities which provided covered reports, and any agents, subsidiaries, affiliates, and parent companies thereof. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 FIRST AMENDED COMPLAINT 10. Below, “Defendants” means Defendant Everest and the fictitiously named Defendants, each and all of them. Hereinafter in the Complaint, unless otherwise specified, reference to a Defendant shall refer to all Defendants, inclusive, and each of them. 11. None of the Defendants reside in the state of California, and as such the action may be tried in the superior court in any county in California, per California Code of Civil Procedure Section 395. 12. Unless otherwise specified, the allegations in this Complaint pertain to the entire periods of time covered by the relevant statutes of limitations of the causes of action in which the allegations appear. 13. The allegations in this Complaint are made without any admission that, as to any particular allegation, Plaintiffs or any of them bear the burden of pleading, proof, or persuasion. All rights to plead in the alternative are reserved. COMMON ALLEGATIONS 14. In early 2019, Plaintiffs inquired with Defendant Everest about renting in the Building. 15. Defendant Everest directed Plaintiffs to complete an application. The application indicated that Defendant Everest would procure certain information on applicants’ character, general reputation, personal characteristics, and/or mode of living, including information involving payment history, rental history, personal history, and criminal history. It also stated that Defendant Everest would procure the same information on applicants’ guarantors. The application purported to include an authorization for Defendants to obtain this information. 16. Plaintiffs are informed and believe and on that basis allege that the information identified (albeit vaguely) is of the type commonly verified by Investigative Consumer Reports conveying information regarding an individual’s character, general reputation, personal characteristics, and/or mode of living. 17. Plaintiffs each completed the application and submitted it. 18. Defendant Everest demanded the payment of a fee in connection with the application. Plaintiffs each paid the fee, and Defendant Everest accepted the payment. 19. Defendant Everest and DOE Defendants processed each Plaintiff’s application. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 FIRST AMENDED COMPLAINT 20. Defendant Everest procured and used a number of investigative consumer reports about each Plaintiff. 21. Defendant Everest and DOE Defendants granted Plaintiffs Andrew Clifton and Kaitlin Kirkpatrick an apartment within the Building known as The Post on Nord. 22. Defendant Everest and DOE Defendants approved Plaintiff Kimberly Kirkpatrick as guarantor on Plaintiff Kaitlin Kirkpatrick’s lease. 23. Defendant Everest and DOE Defendants granted Plaintiff Richard Burton an apartment within the Building known as The Post on Nord. 24. Defendants intentionally concealed from Plaintiffs the nature and type of the investigative consumer reports they would procure from Plaintiffs and the date the reports would be procured. 25. Defendants did not provide a means by which any Plaintiff could indicate that he or she wished to receive a copy of any report prepared in connection with the application. Defendants did not provide a consent form or disclosure with a box to check. 26. Defendants did not make the required certifications to the entities or individuals providing the reports, as discussed below. 27. Defendants did not agree to provide a copy of any of the reports prepared about any Plaintiff. 28. Defendants did not notify any Plaintiff in writing that an investigative consumer report would be made regarding his or her character, general reputation, personal characteristics, and/or mode of living. Defendants did not notify any Plaintiff in writing of any of the investigative consumer reports made about any Plaintiff. 29. Defendants did not notify any Plaintiff of the name or address of the investigative consumer reporting agency that would prepare any report about him or her. Plaintiffs are informed and believe and on that basis allege that Defendants did not notify any Plaintiff of this information within three days after the date on which the report was first requested. 30. Defendants did not provide a summary of the provisions of Civil Code Section 1786.22 to any Plaintiff. 31. Defendants did not provide copies of any of the reports obtained about any Plaintiff. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 FIRST AMENDED COMPLAINT 32. Prior to requesting or procuring the Investigative Consumer Reports about each Plaintiff, Defendant Everest was aware of the Investigative Consumer Reporting Agencies Act. 33. Prior to requesting or procuring the Investigative Consumer Reports about each Plaintiff, Defendant Everest had been informed in writing about the Investigative Consumer Reporting Agencies Act, and was informed in writing that the subject of a background check has the “right to receive all disclosures, as provided in CA Civil Code Section 1786.26.” 34. In spite of being on notice that its conduct was unlawful, Defendant Everest committed the above violations anyway. Its conduct in doing so was willful and/or grossly negligent. FIRST CAUSE(S) OF ACTION Investigative Consumer Reporting Agencies Act - Violation of Cal. Civ. Code § 1786, et. seq. (Against All Defendants) 35. Plaintiffs reallege the statements and allegations contained foregoing paragraphs of this Complaint as if fully set forth herein. 36. California Civil Code Section 1786.16(b)(1) requires that any person “who requests an investigative consumer report” must do as follows: 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. If the consumer wishes to receive a copy of the report, the recipient of the report shall send a copy of the report to the consumer within three business days of the date that the report is provided to the recipient, who may contract with any other entity to send a copy to the consumer. The notice to request the report may be contained on either the disclosure form, as required by subdivision (a), or a separate consent form. The copy of the report shall contain the name, address, and telephone number of the person who issued the report and how to contact them. 37. Defendants failed to comply with these provisions. Defendants did not provide a box to check, did not provide a consent form or disclosure, did not provide copies of any of the numerous reports obtained about any Plaintiff, and did not supply the names or addresses of the investigative consumer reporting agencies making the reports. 38. California Civil Code Section 1786.16(a)(3) requires that: 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. The notification shall also include the name and address of the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 FIRST AMENDED COMPLAINT investigative consumer reporting agency that will prepare the report and a summary of the provisions of Section 1786.22. 39. Defendants failed to comply with these provisions. Defendants did not notify any Plaintiff that an investigative consumer report would be made regarding his or her character, general reputation, personal characteristics, and/or mode of living, did not provide the name or address of the investigative consumer reporting agencies that would prepare the reports, and did not provide a summary of the provisions of Section 1786.22. 40. California Civil Code Section 1786.16(a)(5) provides that no Investigative Consumer Report may be procured unless “The person procuring the report or causing it to be prepared agrees to provide a copy of the report to the subject of the investigation, as provided in subdivision (b).” 41. Defendants failed to do so. They never agreed to provide a copy of any of the reports prepared about any Plaintiff. 42. California Civil Code Section 1786.16(a)(5) provides: The person procuring or causing the request to be made shall certify to the investigative consumer reporting agency that the person has made the applicable disclosures to the consumer required by this subdivision and that the person will comply with subdivision (b). 43. Plaintiffs are informed and believe and on that basis allege that Defendants failed to do so, and did not make the required certification to the entities or individuals providing the reports. 44. California Civil Code Section 1786.16(a) provides that no person or entity may “cause to be prepared an investigative consumer report” unless the conditions set forth by Section 1786.16 are met. 45. As set forth above, the conditions set forth by California Civil Code Section 1786.16 were not met, and therefore the Defendants failed to comply with Section 1786.16(a). 46. As a direct, legal and proximate result of Defendants’ conduct as alleged above, Plaintiffs each suffered damages in an amount according to proof at trial, including but not limited to emotional distress, injury, and harm to property interests. 47. In the alternative, Plaintiffs are each entitled to the statutory damages in the amount of Ten Thousand Dollars ($10,000.00) per violation, from each Defendant. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 FIRST AMENDED COMPLAINT 48. In the alternative, Plaintiffs allege that each Investigative Consumer Report procured or supplied by Defendants constitutes a distinct violation of the primary right or rights contemplated by Code of Civil Procedure Sections 1786 through 1786.60, and as such that each report gives rise to a separate “cause of action” for the purposes of the statutory damage amount. Plaintiffs are informed and believes and on that basis allege that at least four (4) and possibly many more Investigate Consumer Reports about each Plaintiff were procured or made by Defendants. 49. The Investigative Consumer Reporting Agencies Act (“ICRAA”) was passed in 1975 and last amended in 1998. Plaintiffs are informed and believe and on that basis allege that Defendants were aware of ICRAA at the time the violations occurred. Defendants are sophisticated, large companies. The Everest/Peak Campus family of companies in California manage over twelve thousand (12,000) units of housing and is landlord to over forty-seven thousand (47,000) people. 50. As discussed more fully above, prior to requesting or procuring the Investigative Consumer Reports about each Plaintiff, Defendant Everest was aware of the Investigative Consumer Reporting Agencies Act, was informed in writing about the Investigative Consumer Reporting Agencies Act, and was informed in writing that the subject of a background check has the “right to receive all disclosures, as provided in CA Civil Code Section 1786.26[,]” and in spite of being on notice that its conduct was unlawful, Defendant Everest committed the above violations anyway. Its conduct in doing so was willful and/or grossly negligent. 51. Defendants’ conduct was grossly negligent and/or willful; therefore Plaintiffs are each also entitled to punitive damages in an amount according to proof. 52. As a direct, legal, and proximate result of Defendants’ conduct, Plaintiffs were caused to and did employ the services of counsel to prosecute this action, and are accordingly entitled to an award of attorney fees according to proof. 53. Plaintiffs are each also entitled to permanent injunctive and declaratory relief to the following effect: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 FIRST AMENDED COMPLAINT a. That Defendants are prohibited from engaging in the violations and other misconduct referred to above; b. That Defendants shall comply with ICRAA to the extent possible with respect to the investigative consumer reports already procured about each Plaintiff; c. That Defendants must deliver, within three days, copies of all investigative consumer reports to the individuals on whom they were prepared, which shall contain the name, address, and telephone number of the person or entity who issued the report and how to contact that person or entity; d. That Defendants shall provide the consumer a means by which the consumer may indicate on a written disclosure or consent form, by means of a box to check, that the consumer wishes to receive a copy of any report that is prepared, and, if the consumer wishes to receive a copy of the report, shall send a copy of the report (which shall bear the name, address, and contact information of the Reporting Agency) to the consumer within three business days of the date that the report is provided to Defendants; e. That prior to procuring any investigative consumer report, Defendants shall agree to provide a copy of the report to the subject of the Report; f. That prior to procuring any investigative consumer report, Defendants shall certify to the Reporting Agency that within three days of the request for the Report, Defendants will provide the consumer a means by which the consumer may indicate on a written disclosure or consent form, by means of a box to check, that the consumer wishes to receive a copy of any report that is prepared, and, if the consumer wishes to receive a copy of the report, shall send a copy of the report (which shall bear the name, address, and contact information of the Reporting Agency) to the consumer within three business days of the date that the report is provided to Defendants; g. That prior to procuring any investigative consumer report, Defendants shall certify to the Reporting Agency that it agrees to provide a copy of the Report to the consumer; h. The Defendants shall, not later than three days after the date on which they first request an Investigative Consumer Report on a person, notify the consumer in a writing, which 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 FIRST AMENDED COMPLAINT shall include a copy or summary of Civil Code Section 1786.22 and the name and address of the Reporting Agency, that an Investigative Consumer Report will be made regarding the consumer’s character, general reputation, personal characteristics, and mode of living; i. That Defendants must deliver, within three days, copies of all investigative consumer reports to the individuals on whom they were prepared; j. That Defendants are prohibited from retaliating against any Plaintiff for the filing of this lawsuit. SECOND CAUSE OF ACTION Unfair Business Practices - Violation of Cal. Bus. & Profs. Code § 17200, et. seq. (Against All Defendants) 54. Plaintiffs reallege the statements and allegations contained foregoing paragraphs of this Complaint as if fully set forth herein. 55. Defendants violated the ICRAA as detailed more fully above. 56. Defendants failed to provide notice to each Plaintiff of their rights, and failed to provide information to each Plaintiff as required by law and as prevailing standards of fairness dictate. 57. Defendants’ violations and conduct described above constitute unfair, unlawful business acts and practices in violation of Business & Professions Code sections 17200, et. seq. 58. Plaintiffs are each entitled to restitution of the fees and deposits paid in connection with their applications to Defendants for an apartment. 59. Plaintiffs bring this action in order to enforce one or more important rights affecting the public interest. The injunction and cessation of Defendants’ wrongful conduct will result in a significant benefit, both pecuniary and nonpecuniary, to the general public, or at least a large class of persons. In the interests of justice, attorney fees should be paid upon recovery by Plaintiffs, or any of them, in this case. The necessity and financial burden of private enforcement of the rights asserted herein make an award of attorney fees appropriate as provided for in Code of Civil Procedure Section 1021.5. 60. Plaintiffs are each also entitled to permanent injunctive and declaratory relief to the following effect: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 FIRST AMENDED COMPLAINT a. That Defendants are prohibited from engaging in the violations and other misconduct referred to above; b. That Defendants shall comply with ICRAA to the extent possible with respect to the investigative consumer reports already procured about each Plaintiff; c. That Defendants must deliver, within three days, copies of all investigative consumer reports to the individuals on whom they were prepared, which shall contain the name, address, and telephone number of the person or entity who issued the report and how to contact that person or entity; d. That Defendants shall provide the consumer a means by which the consumer may indicate on a written disclosure or consent form, by means of a box to check, that the consumer wishes to receive a copy of any report that is prepared, and, if the consumer wishes to receive a copy of the report, shall send a copy of the report (which shall bear the name, address, and contact information of the Reporting Agency) to the consumer within three business days of the date that the report is provided to Defendants; e. That prior to procuring any investigative consumer report, Defendants shall agree to provide a copy of the report to the subject of the Report; f. That prior to procuring any investigative consumer report, Defendants shall certify to the Reporting Agency that within three days of the request for the Report, Defendants will provide the consumer a means by which the consumer may indicate on a written disclosure or consent form, by means of a box to check, that the consumer wishes to receive a copy of any report that is prepared, and, if the consumer wishes to receive a copy of the report, shall send a copy of the report (which shall bear the name, address, and contact information of the Reporting Agency) to the consumer within three business days of the date that the report is provided to Defendants; g. That prior to procuring any investigative consumer report, Defendants shall certify to the Reporting Agency that it agrees to provide a copy of the Report to the consumer; h. The Defendants shall, not later than three days after the date on which they first request an Investigative Consumer Report on a person, notify the consumer in a writing, which 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 FIRST AMENDED COMPLAINT shall include a copy or summary of Civil Code Section 1786.22 and the name and address of the Reporting Agency, that an Investigative Consumer Report will be made regarding the consumer’s character, general reputation, personal characteristics, and mode of living; i. That Defendants must deliver, within three days, copies of all investigative consumer reports to the individuals on whom they were prepared; j. That Defendants are prohibited from retaliating against any Plaintiff for the filing of this lawsuit. THIRD CAUSE OF ACTION Negligence Per Se (Against All Defendants) 61. Plaintiffs reallege the statements and allegations contained foregoing paragraphs of this Complaint as if fully set forth herein. 62. As set forth more fully above, California Code of Civil Procedure Sections 1786 through 1786.60 impose upon Defendants certain affirmative duties which must be performed in connection with the procurement of Investigative Consumer Reports. 63. Defendants negligently, and/or grossly negligently, and/or recklessly violated these duties, as set forth more fully above. 64. Plaintiffs are informed, believe, and thereon allege that Defendants knew and reasonably should have known that their breach of the above duties could result in foreseeable harm to Plaintiffs. 65. As a direct, legal and proximate result of Defendants’ conduct, as alleged above, Plaintiffs each suffered damages, including emotional distress, injury, and harm to property interests, all of which entitle each Plaintiff to damages according to proof. DEMAND FOR JURY TRIAL 66. Plaintiffs each demand a trial by jury for each cause of action stated herein. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 FIRST AMENDED COMPLAINT PRAYER WHEREFORE, Plaintiffs each pray for judgment as follows: 1. For general damages according to proof, on each cause of action for which such damages are available; 2. For compensatory damages according to proof, on each cause of action for which such damages are available; 3. For statutory damages according to law, on each cause of action for which such damages are available, in the amount of One Hundred Sixty Thousand Dollars ($160,000.00) each, from each Defendant, or greater than that amount according to proof; 4. For punitive damages according to proof; 5. For prejudgment and post-judgment interest according to law; 6. For such reasonable attorney fees and costs as are available under California law; 7. For equitable relief and restitution to the extent available under law; 8. For a permanent injunction barring Defendant from engaging in the unlawful conduct described herein and barring Defendant from future violations of ICRAA with respect to each Plaintiff, and requiring Defendant to comply with ICRAA to the extent possible with respect to the reports they have already procured, providing: a. That Defendants are prohibited from engaging in the violations and other misconduct referred to above; b. That Defendants shall comply with ICRAA to the extent possible with respect to the investigative consumer reports already procured about each Plaintiff; c. That Defendants must deliver, within three days, copies of all investigative consumer reports to the individuals on whom they were prepared, which shall contain the name, address, and telephone number of the person or entity who issued the report and how to contact that person or entity; d. That Defendants shall provide the consumer a means by which the consumer may indicate on a written disclosure or consent form, by means of a box to check, that the consumer wishes to receive a copy of any report that is prepared, and, if the consumer 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 FIRST AMENDED COMPLAINT wishes to receive a copy of the report, shall send a copy of the report (which shall bear the name, address, and contact information of the Reporting Agency) to the consumer within three business days of the date that the report is provided to Defendants; e. That prior to procuring any investigative consumer report, Defendants shall agree to provide a copy of the report to the subject of the Report; f. That prior to procuring any investigative consumer report, Defendants shall certify to the Reporting Agency that within three days of the request for the Report, Defendants will provide the consumer a means by which the consumer may indicate on a written disclosure or consent form, by means of a box to check, that the consumer wishes to receive a copy of any report that is prepared, and, if the consumer wishes to receive a copy of the report, shall send a copy of the report (which shall bear the name, address, and contact information of the Reporting Agency) to the consumer within three business days of the date that the report is provided to Defendants; g. That prior to procuring any investigative consumer report, Defendants shall certify to the Reporting Agency that it agrees to provide a copy of the Report to the consumer; h. The Defendants shall, not later than three days after the date on which they first request an Investigative Consumer Report on a person, notify the consumer in a writing, which shall include a copy or summary of Civil Code Section 1786.22 and the name and address of the Reporting Agency, that an Investigative Consumer Report will be made regarding the consumer’s character, general reputation, personal characteristics, and mode of living; i. That Defendants must deliver, within three days, copies of all investigative consumer reports to the individuals on whom they were prepared; j. That Defendants are prohibited from retaliating against any Plaintiff for the filing of this lawsuit. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 FIRST AMENDED COMPLAINT 9. For such other and further relief as the Court should deem just and proper. LAW OFFICE OF JOSEPH B. OLLINGER PC Dated: July 21st, 2020 By: ______________________________________ Joe Ollinger, Esq., attorney for Plaintiffs RICHARD BURTON, ANDREW CLIFTON, KAITLIN KIRKPATRICK, and KIMBERLY KIRKPATRICK 21878.1 4 DECLARATION OF ADAM AINSLIE ISO DEMURRER AND MTN TO STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1100 El Centro Street So. Pasadena, CA 91030 Phone (626) 243-1100 Fax (626) 243-1111 PROOF OF SERVICE (CCP §§ 1013(a) and 2015.5; FRCP 5) State of California, ) ) ss. County of Los Angeles. ) I am employed in the County of Los Angeles. I am over the age of 18 and not a party to the within action. My business address is 1100 El Centro Street, South Pasadena, California 91030. On this date, I served the foregoing document described as EVEREST CAMPUS CALIFORNIA, INC.’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT on the interested parties in this action by placing same in a sealed envelope, addressed as follows: Joseph B. Ollinger, Esq. Law Office of Joseph B. Ollinger PC 3348 Griffith Park Blvd. #22 Los Angeles, CA 90027 (310) 424-0097 josephollinger@gmail.com ATTORNEYS FOR PLAINTIFF KYLER CORREIA; DANIEL RIGNACK AND ROGER RIGNACK (BY MAIL) - I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in South Pasadena, California to be served on the parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at South Pasadena, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. (BY CERTIFIED MAIL) - I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Return Receipt Requested to be placed in the United States Mail in South Pasadena, California. BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY (BY ELECTRONIC FILING AND/OR SERVICE) - I served a true copy, with all exhibits, electronically on designated recipients listed on the attached Service List. FEDERAL EXPRESS - I caused the envelope to be delivered to an authorized courier or driver authorized to receive documents with delivery fees provided for. (BY FACSIMILE) - I caused the above-described document(s) to be transmitted to the offices of the interested parties at the facsimile number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (626) 243-1111 indicated all pages were transmitted. (BY PERSONAL SERVICE) - I caused such envelope(s) to be delivered by hand to the office(s) of the addressee(s). Executed on August 26, 2020 at South Pasadena, California. (STATE) - I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (FEDERAL) - I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Alicia Gomez agomez@ccmslaw.com
