everest campus california inc s reply in support of demurrer to plain

Cal. Super. - 1st Dist.August 6, 2021

21878.1 1 EVEREST CAMPUS’ REPLY IN SUPPORT OF DEMURRER 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 REPLY IN SUPPORT OF DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT [Filed concurrently with Reply in Support of Motion to Strike] DATE: September 22, 2020 TIME: 9:30 a.m. DEPT.: 302 Complaint Filed: 11/21/19 Remand Received: 07/27/20 Trial Date: None Defendant EVEREST CAMPUS CALIFORNIA, INC. (“Everest”) hereby submits its reply in support of its demurrer to the First Amended Complaint of Plaintiffs RICHARD BURTON, ANDREW CLIFTON, KAITLIN KIRKPATRICK, and KIMBERLY KIRKPATRICK (collectively “Plaintiffs”). ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 09/15/2020 Clerk of the Court BY: YOLANDA TABO-RAMIREZ Deputy Clerk 21878.1 1 EVEREST CAMPUS’ REPLY IN SUPPORT OF DEMURRER 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 I. INTRODUCTION Plaintiffs’ opposition to Everest Campus’ demurrer is replete with misstatements of law and fact in an attempt to save an otherwise insufficient complaint. Notably, Plaintiffs cherry-pick bits and pieces of the Investigative Consumer Reporting Agency Act’s (“ICRAA”) legislative intent section to contrive an argument, while at the same time completely ignoring the majority of the language which undeniably states that the Legislature intended to regulate investigative consumer reporting agencies. Plaintiffs misconstrue Everest Campus’ arguments with bombastic rhetoric in some ill- fated attempt to continue to “use the very process of litigation to precipitate payoffs by private business for alleged violations of law having no real relationship to a true public interest.” Consumer Defense Group v. Rental Housing Industry Members (2006) 137 Cal.App.4th 1185, 1216. As Plaintiffs opposition makes clear, they have no real damage and are in this lawsuit solely in hopes of obtaining a $10,000 statutory penalty. This lawsuit is a waste of judicial resource either by greedy individuals devoid of any real harm or a lawyer promising a quick payday. In either case, as discussed more thoroughly in the moving papers and herein there are numerous grounds for which this lawsuit should be dismissed. II. PLAINTIFFS’ ICRAA CAUSE OF ACTION FAILS AS A MATTER OF LAW FOR LACK OF STANDING, THE ICRAA’S OWN LIABILITY EXCEPTION, AND BECAUSE THE ACTION IS “DE MINIMIS” A. Plaintiffs Lack Standing Because They Are Not Aggrieved And The ICRAA Was Enacted To Regulate Investigative Consumer Reporting Agencies Plaintiffs argument that they have standing is solely based on the language of Civil Code section 1786.50 (the remedy section) and a singled-out reference from the legislative intent section. However, there can be no doubt that the clear expressed intent of the Legislature in enacting the ICRAA was “to regulate investigative consumer reporting agencies pursuant to this title in a manner which will best protect the interests of the people of the State of California.” Civ. Code § 1786, subd (g). Plaintiffs cannot dispute this. Rather Plaintiffs distract and point to other sections of the ICRAA in hopes that this Court will be misguided into believing that the ICRAA has an expansively broad scope of regulation. 21878.1 2 EVEREST CAMPUS’ REPLY IN SUPPORT OF DEMURRER 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 This case is remarkably similar to Starbucks Corp. v. Superior Court (2008) 168 Cal.App.4th 1436 albeit involving different statutes. Both cases concern legislation enacted in the mid-1970’s that purports to regulate conduct for certain types of applications. In Starbucks, plaintiffs were job applicants who brought a class-action lawsuit against Starbucks based on the assertion that the job application violated California law which prohibited employers from asking about marijuana-related convictions that are more than two years old. The three named plaintiffs “each applied for a job at Starbucks in early 2005 by filling out a job application. None had a marijuana arrest or conviction. None was hired.”1 Id. at 1442. The trial court concluded that “plaintiffs had standing to assert the statutory violation ‘based on the fact they were given the job application containing the offending question when applying for employment with the defendant.... [¶] The plain language of those sections establishes a strict liability standard of conduct where a job applicant seeks to recover only the minimum statutory damage amount of $200.’” Id. at 1443. The trial court also “determined that proof of damages was not a necessary element to the plaintiffs’ ability to recover the statutory minimum of $200 per applicant.” Id. The Court of Appeals reversed.2 The Court found that Labor Code section 432.7, subdivision (c) was ambiguous because it provides that “the applicant may bring an action to recover from that person actual damages or two hundred dollars ($200)….” Id. at 1448. In doing so, the Court then looked towards the legislative intent of the statute to determine if the plaintiffs fell within the class of individuals the Legislature sought to protect. The Court used “well-settled rules of statutory construction”, to “resolve the ambiguity according to the usual, ordinary import of the language, and to avoid absurd consequences, including an unconstitutionally excessive penalty.” Id. at 1449. This includes setting aside “the literal meaning of its words…to avoid harsh results and mischievous or absurd consequences.” Id. (quoting 1 Plaintiffs here falsely claim that the Starbucks “plaintiffs made fraudulent misrepresentations and applied to Starbucks for the sole purpose of bringing a lawsuit against potential targets for litigation” citing pages 1446 to 1447 of the Starbucks decision. Perhaps this argument was made as a result of hastily reading the Starbucks decision. The pages cited and material quoted was from the portion of the decision considering whether there was a lack of ambiguity for two of the three named plaintiffs, and the court determining that the plaintiffs’ subjective understanding of the employment application question was dispositive. 2 Plaintiff oddly attempts to paint the Starbucks decision as “Judge Ikola’s opinion” as if he alone made this decision, simultaneously suggesting that the Starbucks decision should not be given much weight because two ICRAA decisions authored by Judge Ikola were reversed 11 years later in Connor v. First Student, Inc. (2018) 5 Cal.5th 1026. The Starbucks decision was unanimously decided by a three-justice panel and has not been overturned or called into question. 21878.1 3 EVEREST CAMPUS’ REPLY IN SUPPORT OF DEMURRER 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 Kinney v. Vaccari (1980) 27 Cal.3d 348, 357). Indeed, this statutory construction is in accordance with other rules of construction. See Hale v. Morgan (1978) 22 Cal.3d 388, 405 (narrowly construing the term “deprived” in a statute allowing for a mandatory statutory penalty of $100 per day for tenants who were “deprived” of utility services “[b]ecause the statute is penal, we adopt the narrowest construction of its penalty clause to which it is reasonably susceptible in the light of its legislative purpose.”). So too here is Civil Code section 1786.50 ambiguous in the exact same way as Labor Code section 432.7 and should be interpreted in the same way. Civil Code section 1786.50, subdivision (a)(1) provides that an “investigative consumer reporting agency or user of information that fails to comply with any requirement under this title with respect to an investigative consumer report is liable to the consumer who is the subject of the report [for] [a]ny actual damages sustained by the consumer as a result of the failure or, except in the case of class actions, ten thousand dollars ($10,000), whichever sum is greater.” There can be no reasonable dispute that the legislative intent of the ICRAA is found within the section entitled “Legislative findings and declarations.” See Civ. Code § 1786. In that section, the California Legislature specifically found and declared, with emphasis added: (a) Investigative consumer reporting agencies have assumed a vital role in collecting, assembling, evaluating, compiling, reporting, transmitting, transferring, or communicating information on consumers for employment and insurance purposes, and for purposes relating to the hiring of dwelling units, subpoenas and court orders, licensure, and other lawful purposes. (b) There is a need to insure that investigative consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer's right to privacy. … (f) It is the purpose of this title to require that investigative consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for employment, insurance information, and information relating to the hiring of dwelling units in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of the information in accordance with the requirements of this title. (g) The Legislature hereby intends to regulate investigative consumer reporting agencies pursuant to this title in a manner which will best protect the interests of the people of the State of California.” / / / 21878.1 4 EVEREST CAMPUS’ REPLY IN SUPPORT OF DEMURRER 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 Plaintiffs do not make any argument against this clear prescription from the Legislature. Rather, Plaintiffs cite to the remedy section of the ICRAA for the Legislature’s intent and cherry- picked portions of the intent section to support their argument that any person subjected to a purportedly improper housing application where a investigative consumer report is obtained is automatically entitled to $10,000 without the need for any resulting injury, where those applications had nothing to even disclose. This is the exact type of “veritable financial bonanza for litigants” that Starbucks and numerous other courts have rejected. Plaintiffs’ attempt to distinguish Starbucks and Labor Code section 432.7 by stating that “there is no chance” a plaintiff could obtain an automatic damage under the ICRAA because it is dependent on the defendant’s actions and that the ICRAA could not be turned into an “adding machine” is amiss. All statutory violations are dependent on some defendant’s conduct. In Starbucks, it was the alleged improper asking about marijuana-related convictions that are more than two years old. There, because none of the applicants in question had a marijuana conviction to disclose, the court in examining the legislative intent of the statute found that those individuals were not persons who the Legislature intended to protect. The Starbucks court feared that if any applicant who is asked the improper marijuana-related conviction question in their employment application regardless of whether they have been aggrieved, “shakedown” lawsuits brought by “self-proclaimed bounty hunters,” would impose harsh burdens on business in California and turn the statute into a “adding machine” for penalties. That is the exact same scenario here-Plaintiffs, who were not aggrieved in any cognizable way and who had no information that would have been subject to disclosure in an investigative consumer report, are seeking to cash in for a de minimis violation. The Legislature did not intend to regulate entities such as Everest Campus, and certainly did not intend the ICRAA to be a statute of automatic entitlement. Plaintiffs’ reliance on Huff v. Securitas Security Servs. USA, Inc. (2018) 23 Cal.App.5th 745 for the position that the Starbucks decision’s reasoning is inapplicable here is mistaken. Even a cursory review of Huff demonstrates that Starbucks was distinguished in that case for reasons wholly inapplicable in this case. Speciously, Plaintiffs provide a misleading quotation from the Huff decision that completely ignore one of the grounds for which Starbucks was distinguished. In Huff, the Court 21878.1 5 EVEREST CAMPUS’ REPLY IN SUPPORT OF DEMURRER 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 distinguished Starbucks on two grounds. The first ground-omitted from Plaintiffs’ quotation-was because the Starbucks action “involved individual claims brought on behalf of other individuals, not a qui tam claim brought on behalf of the government.” Id. at 760. The Huff court noted that the “traditional standing analysis undertaken by the court in Starbucks does not apply in a qui tam action.” Id. The second ground-quoted in Plaintiffs’ opposition-was because there was “clear expression that the Legislature intended that a PAGA plaintiff be affected by at least one, but not necessarily all, of the violations alleged in the action.” Id. at 761. Huff did not reject Starbucks; Huff distinguished Starbucks (and distinguished on grounds that do not exist here). This case is more analogous to Starbucks than Huff given it is not a qui tam action and the expression of the Legislature was to regulate a different kind of entity than Everest Campus. See Civ. Code 1786, subds. (a), (b), (f), and (g). Applying the principles of statutory construction, this Court should narrowly interpret Civil Code section 1786.50, subdivision (a)(1) “in accordance with the traditional principle that the applicant be a person who has been aggrieved by the statutory violation.” Starbucks, supra, 168 Cal.App.4th at 1451 (italics in original). This is further supported by the Supreme Court’s declaration that in order to have standing the “party must be able to demonstrate that he or she has some such beneficial interest that is concrete and actual, and not conjectural or hypothetical.” Teal v. Superior Court (2014) 60 Cal.4th 595, 599. B. The ICRAA Contains An Ambiguous Exception To Liability The ICRAA’s exception to liability, found in Civil Code section 1786.50, subdivision (c) is ambiguous and must be interpreted in a way to give effect to the statute as a whole. Plaintiffs’ primary argument in opposition is claiming that Everest campus is asking the Court to “add” or “change” words in a statute. Plaintiffs’ position seemingly ignores the fact that courts interpret statutes beyond the words literal meaning. See Kinney v. Vaccari (1980) 27 Cal.3d 348, 357 (a statute is to be construed in such a way as to render it reasonable, fair and harmonious with its manifest legislative purposes, and the literal meaning of its words must give way to avoid harsh results and mischievous or absurd consequences.” (cleaned up)); see also Gamble v. Los Angeles Dept. of Water and Power (2002) 97 Cal.App.4th 253 (interpreting Code of Civil Procedure section 1038 beyond its literal 21878.1 6 EVEREST CAMPUS’ REPLY IN SUPPORT OF DEMURRER 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 meaning to make the statute practical workable and harmonious). In an effort to convince the Court that Civil Code section 1786.50, subdivision (c) is not ambiguous, Plaintiffs purport to provide an example scenario of where the failure to comply with the ICRAA results in a more favorable investigative consumer report than had there not been the failure to comply. Ironically, the scenario Plaintiffs suggest is no less ambiguous. In fact, Plaintiffs completely fails to describe how not giving a summary of rights, or including a check box on the application, or any of the other procedural requirements of the ICRAA could result in the eventual report omitting a felony conviction and thus being “more favorable” to the applicant. That is pure happenstance. Surely the Legislature did not intend an explicit statutory exception to liability to operate like a roulette wheel exempting a defendant from liability on sheer coincidence. It is conceivable that a plaintiff could successfully argue that even with the omitted felony, that the specific failure to comply did not “result in a more favorable investigative consumer report” thereby imposing liability despite having received a “more favorable” report. Instead, the only reasonable interpretation is to construe the section to mean when the decision concerning the report is favorable to the applicant or employee in question there is no liability. See California Investigative Consumer Reporting Agencies Act: Background checks, Cal. Bus. Law Deskbook § 17:14 (2019). This construction is also supported by the public policy behind the ICRAA, and the practical circumstances that necessitated its enactment. See Civ. Code § 1786. The investigative consumer reports are obtained for purposes of making for obtaining insurance, employment and rental properties. It is the use of the report (i.e. the decision) that is critical. The person who has unknowingly been subjected to identity theft is likely to have numerous and serious red flags that would give good reason for an insurance company, employer or landlord to reject the applicant. A person who has not been turned away necessarily had a background check that did not contain such red flags. As such, this person has not been aggrieved in anyway even if the user of the report missed a procedural step to complete compliance with the ICRAA. There is no sound policy reason to impose liability in that scenario. / / / / / / 21878.1 7 EVEREST CAMPUS’ REPLY IN SUPPORT OF DEMURRER 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 Lastly, Plaintiffs’ reliance on numerous other statutes where a penalty was permitted without evidence of actual damages does not lend any support here. Everest Campus’ argument is rooted in the statutory exception for liability under the ICRAA. Under that carve out, if the plaintiff has not been aggrieved by the violation then there is no liability entitling the plaintiff to the penalty. None of the statutes Plaintiffs has relied upon contain similar carve outs. Most importantly, the FCRA (which is similar, but not identical to the ICRAA) does not have a carve out for liability. See 15 U.S.C. § 1681n. Further, it is questionable whether federal statutes such as the FCRA can be used for comparison purposes in scenarios such as this because the United States Supreme Court has declared that to satisfy Article III’s standing requirement the plaintiff must allege more than a bare procedural violation. See Spokeo, Inc. v. Robins (2016) 136 S. Ct. 1540, 1550. C. Plaintiffs’ Action Is “De Minimis” California has long recognized that the “law disregards trifles.” Civ. Code 3533 (enacted in 1872). Over 127 years ago, the California Supreme Court declared that “[i]n view of the doctrine enunciated by elementary writers, and fully concurred in by the courts of probably every state of the Union, it will be readily admitted on all hands that courts of justice do not act as mere tribunals of conscience to enforce duties which are purely moral, and involving no pecuniary or tangible injury.” Wainscott v. Occidental Bldg. & Loan Ass’n (1893) 98 Cal. 253, 255. Although this is an old principle it is a wise one, with core values resonating to the modern day in cases such as Starbucks v. Superior Court and Harris v. Times, Inc. (1987) 191 Cal.App.3d 449 where relief has been rejected by the courts for plaintiffs without any cognizable injury seeking to “the use of the very process of litigation to precipitate payoffs by private businesses for alleged violations of law having no real relationship to a true public interest.” Consumer Defense Group, supra, 137 Cal.App.4th at 1216. III. PLAINTIFFS’ LACK STANDING TO ASSERT A UNFAIR COMPETITION LAW CLAIM Besides the fact that the UCL claim fails, if the underlying ICRAA claim fails (which it does), Plaintiffs lack statutory standing pursuant to Proposition 64 to maintain their UCL claim. As an initial matter, Plaintiff is entirely incorrect in claiming there was a difference in standard of review. Everest Campus and RealPage moved for dismiss under Federal Rule 12(b)(6) which is 21878.1 8 EVEREST CAMPUS’ REPLY IN SUPPORT OF DEMURRER 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 the functional equivalent of a demurrer for failure to state sufficient facts. See Gardner v. UICI (9th Cir. 2007)508 F.3d 559, 563, n.5. The California Supreme Court has clearly held that standing for a UCL claim requires an economic loss caused by an unfair business practice. See Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322. The causal connection required under this test “is broken when a complaining party would suffer the same harm whether or not a defendant complied with the law.” Daro v. Superior Court (2007) 151 Cal. App. 4th 1079, 1099. Plaintiffs incorrectly claim that they have in fact suffered an economic loss as a result of Everest Campus not providing copies of the investigative consumer reports obtained by RealPage. Plaintiffs tendered a fee in connection with their application. Although not alleged, it is presumed that the fee was to process the application and to cover the cost of obtaining an investigative consumer report. This squarely defeats any argument of standing under the UCL because Plaintiffs paid the fee regardless of whether Everest Campus subsequently complies with the ICRAA. This is exactly what the Northern District of California previously recognized in Limson v. Bridge Prop. Mgmt. Co. (N.D. Cal. Sept. 24, 2019) 2019 WL4645174. The Limson court noted that “[e]ven drawing all reasonable inferences in favor of the non-moving party, Plaintiffs’ allegations indicate that this was a fee that was charged for apply to reside” at the property in question “and that it would have been charged regardless of whether” defendant was in compliance with consumer protection laws. Id. Plaintiffs attempt to distinguish Limson by claiming that under the FRCA there is no right to receive a copy of the report. However, the Northern District of California in this case prior to remanding dispensed with that argument by stating “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.” Ainslie Decl., at ¶ 7, Ex. E at p. 2. Plaintiffs then attempt to distinguish the remand order but fundamentally misunderstand what the federal court is saying. The federal court reasoned that because the ICRAA’s granting of the right to a copy of the investigative consumer report is not contingent upon the consumer paying the fee, it 21878.1 9 EVEREST CAMPUS’ REPLY IN SUPPORT OF DEMURRER 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 does not confer standing for a UCL claim. Furthermore, the other portion of the remand order where the federal court hypothesized about potential Article III standing was in reference to standing under the ICRAA. See Ainslie Decl., at ¶ 7, Ex. E at p. 1. No facts are alleged, and no argument has been made otherwise that the payment of the fee was caused by Everest Campus’ alleged violations of the ICRAA. The ICRAA contains no requirement or authorization for fee charging. IV. PLAINTIFFS NEGLIGENCE CLAIMS FAIL AS THEY ALLEGED NO LEGAL DUTY, NO CAUSATION AND NO DAMAGES Plaintiffs mistakenly continue to argue that they have sufficiently pled the existence of a legal duty by merely pointing to the ICRAA. Plaintiffs claim that Everest Campus is “wrong” when it says that the ICRAA was intended to regulate investigative consumer reporting agencies, yet Plaintiffs do not dispute the plain language of Civil Code section 1786 which directly states that is the intent. See Civ. Code 1786, subds. (a), (b), (f), and (g). There is no explanation for how a statute intended to regulate one type of entity imposes a legal affirmative duty on another type of entity. The only allegation within the complaint is a pure conclusion of law which can properly be disregarded. See Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713. Even if the Court were to accept that Plaintiffs did in fact suffer an economic loss by not receiving the reports, the courts have held that “where the alleged negligence has caused economic loss, but no personal injury or property damage, duty is not presumed.” So. California Gas Leak Cases (2017) 18 Cal.App.5th 581, 588, aff’d, (2019) 7 Cal. 5th 391. Accordingly, Plaintiffs’ failure to allege the facts that give rise to a legal duty owed is fatal to the claim. Furthermore, Plaintiffs only superficially address Everest Campus’ no causation and damage argument. Plaintiffs have admitted that they would have still presented rental/guarantor applications to Everest Campus regardless of whether an investigative consumer report would be prepared about them. Ainslie Decl., at ¶ 8, Ex. F at No. 10. Plaintiffs also admit that Everest Campus granted their applications. FAC, at ¶¶ 21-23. These admissions sever any nexus between the purported violations of the ICRAA and any resulting damage. In any event, as noted by the Northern District of California in remanding this case, the “only 21878.1 10 EVEREST CAMPUS’ REPLY IN SUPPORT OF DEMURRER 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 injuries alleged are extremely vague-damage deriving from ‘emotional distress, injury, and harm to property interests.’” Ainslie Decl., at ¶ 7, Ex. E at p. 2 (citing Complaint, at ¶ 56). Plaintiffs attempt to reconcile this by postulating an even more vague and speculative theory for damages. Plaintiffs claim that the emotional distress and injury results from Evert Campus’ “mishandling of their personal, identifying information, including stress, worry, uncertainty, threat to their privacy interests, and credit insecurity related to increased potential for identity theft.” Opp. at 4:25-27. These alleged damages, however, do not logical flow from any purported violation as alleged in the first amended complaint. There is no allegation in the complaint that would give rise to such emotional distress, such as Everest Campus impermissibly giving this information to unrelated third parties. There is no allegation in the complaint Everest Campus took any action whatsoever that harmed their privacy interest. The only allegations exist are that Everest Campus did not properly notify the Plaintiffs that they had the right to receive a copy of the report that would be obtained and did not provide a summary of their rights. The allegations that the type of report was concealed, and no disclosure or consent form were given are directly contradicted by Plaintiffs’ own judicial admissions. They allege that the applications indicated that “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.” FAC, at ¶ 15. “The application purported to include an authorization” for Everest Campus to obtain this information. FAC, at ¶ 15. How can Plaintiffs expressly acknowledge that the applications indicated the type of information that would be obtained, agree that the information can be obtained, but now claim they are worried about the information being mishandled? The answer is, of course, they cannot. Moreover, there can be no dispute that obtaining an investigative report under the circumstances of qualifying an applicant for renting an apartment is permitted. See Civ. Code § 1786.12, subd. (d). V. CONCLUSION This Court should sustain this demurrer without leave to amend as the lack of standing cannot be cured by amendment and the existing judicial admissions make Everest Campus exempt from 21878.1 11 EVEREST CAMPUS’ REPLY IN SUPPORT OF DEMURRER 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 liability. DATED: September 15, 2020 COLLINS COLLINS MUIR + STEWART LLP By: ________________________________ BRIAN K. STEWART Attorneys for Defendant EVEREST CAMPUS CALIFORNIA, INC. 21878.1 12 EVEREST CAMPUS’ REPLY IN SUPPORT OF DEMURRER 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 REPLY IN SUPPORT OF DEMURRER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT on the interested parties in this action by placing same in a sealed envelope, addressed as follows: PLEASE SEE ATTACHED SERVICE LIST (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 September 15, 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 21878.1 13 EVEREST CAMPUS’ REPLY IN SUPPORT OF DEMURRER 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 Richard Burton et al. vs. Everest Campus California, Inc. et al. Case No.: CGC19580946 CCMS File No. 21878.1 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