Judge Barbara M. Scheper, Case Number: 20STCV47947, Date: 2024-02-22 Tentative Ruling

Judge: Barbara M. Scheper, Case: 20STCV47947, Date: 2024-02-22 Tentative Ruling

Case Number: 20STCV47947 Hearing Date: February 22, 2024 Dept: 30

Dept. 30

Calendar No.

Golan vs. Encino Villas Condominium Association, Inc., et. al., Case No. 20STCV47947

Tentative Ruling re: Defendant’s Motion for Summary Judgment, or in the alternative, Summary Adjudication of Issues

Defendant Encino Villas Condominium Association, Inc. (Defendant) moves for summary judgment, or, in the alternative, summary adjudication against plaintiff Amir Golan (Plaintiff). Summary judgment is denied.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and if not to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Atlantic Richfield).) Code of Civil Procedure Section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the moving party must satisfy the initial burden of proof by presenting facts to negate an essential element or to establish a defense. (Code Civ. Proc, § 437c, subd. (p)(2).) A cause of action “cannot be established” if the undisputed facts presented by defendant prove the contrary of plaintiff's allegations as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.) To show a complete defense, the defendant must present admissible evidence of each essential element of the defense upon which it bears the burden of proof at trial. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Once the moving party has met that burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendant moves for summary judgment on the remaining negligence cause of action.

The elements of a cause of action for negligence are the following: (1) a legal duty to use due care; (2) a breach of such legal duty; (3) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Breach is the failure to meet the standard of care. (Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 643.)

Defendant argues that Plaintiff cannot establish a breach of duty; Plaintiff’s only evidence to establish a causal link between his claimed damages and the association is pure conjecture; Plaintiff’s only evidence to establish his claimed damages is his own improper opinion; and Plaintiff cannot rebut the association’s affirmative defense of the rule of judicial deference.

As framed by the pleadings, Plaintiff owned and possessed a condominium at 5334 Lindley Avenue, Unit No. 132, Encino, California 91436. (FAC, ¶ 11.) Defendant, Encino Villas Condominium Association, Inc., negligently maintained, inspected, and repaired the common areas of the condominium complex; negligently failed to take corrective action to control the negligent acts and omissions of the condominium’s adjacent owners; and negligently owned, controlled, and maintained the condominium complex. (FAC, ¶ 26.) This proximately caused and contributed to water intrusion and mold and mildew in Plaintiff’s unit. (FAC, ¶ 26.)

To be entitled to summary judgment as it relates to the element of breach of duty, Defendant must negate the material factual allegations of the claimed breach. (See Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1534-1535.) Defendant must set forth those material facts which would entitle it to judgment as a matter of law. (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 849.) This is accomplished through the undisputed statement of material facts. (Id.) The complaint measures the materiality of the facts in a defendant’s challenge to the plaintiff’s cause of action; hence the moving party’s separate statement must address the material facts set forth in the complaint. (Id.) The purpose of the separate statement is to afford due process to opposing parties; where a remedy as drastic as summary judgment is involved, due process requires a party to be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut to prevail. (Id.)

The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. (Code Civ. Proc., § 437c, subd. (b)(1).) Each of the material facts stated shall be followed by a reference to the supporting evidence. (Code Civ. Proc., § 437c, subd. (b)(1).) The failure to comply with this requirement of a separate statement may in the court's discretion constitute sufficient grounds for denying the motion. (Code Civ. Proc., § 437c, subd. (b)(1).)

“Material facts” are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion. (Cal. Rules of Court, rule 3.1350 (a)(2).)

To shift the burden to Plaintiff to present evidence of a triable issue of material fact, Defendant was required to set forth undisputed facts that established the following: (1) Defendant carefully maintained, inspected, and repaired the common areas of the condominium complex; (2) Defendant took corrective action to control the negligent acts and omissions of the condominium’s adjacent owners; and (3) Defendant carefully owned, controlled, and maintained the condominium complex. Defendant did not do this. Instead, it states, “The Association did not breach any relevant duty.” (UMF No. 5.) It also states, “Plaintiff has not put forth any admissible evidence of a water intrusion into the Property,” and “Plaintiff has not put forth any admissible evidence of mold within the Property.” (UMF Nos. 6 and 7.) These are not facts but argument. The evidence proffered by Defendant in fact demonstrates that Plaintiff does have facts to support his claim as set forth in his verified discovery responses including pictures of significant damage to Plaintiff’s property.

In its moving papers, Defendant only argues what Plaintiff did or did not do and but does not set forth any facts negating the alleged breach of duty. (Mot, pg. 6.) Defendant asserts that Plaintiff’s only evidence supportive of his claim that the Association breached its relevant duty is an email in which he states that he is inquiring as to the rotted wood on his balcony. (Mot, pg. 6.) The evidence supplied by Defendant does not establish that the single email is Plaintiff’s only evidence that he notified Defendant of the problems with his unit. In fact, the email cited by Defendant reveals that Plaintiff contacted Defendant by telephone and left messages many times complaining of the problems.

Defendant takes the same approach with the causation and damages elements. Defendant does not set forth undisputed facts demonstrating that: (1) Defendant’s acts or omissions did not cause damages; and (2) Plaintiff suffered no damages. Instead, it states, “Plaintiff has not put forth any admissible evidence of a water intrusion into the Property,” and “Plaintiff has not put forth any admissible evidence of mold within the Property.” (UMF Nos. 6 and 7.) It also states, “Plaintiff cannot establish his claimed damages.” (UMF No. 8.) Defendant asserts that Plaintiff’s only evidence to establish a causal link between his claimed damages and the association is pure conjecture. (Mot, pg. 7.) Defendant also asserts that Plaintiff’s only evidence to establish his claimed damages is his own improper opinion. (Mot, pgs. 7-8.) Again, these are arguments, not facts.

Thus, the defendant has not met its initial burden to show that the undisputed facts entitle it to summary judgment.

Defendant also argues that it is entitled to summary judgment based on the affirmative defense of the rule of judicial deference. Courts defer to a community association board’s authority and presumed expertise to select among means for discharging an obligation to maintain and repair a development’s common areas when the board has reasonably investigated and acted in good faith and with regard for the best interests of the community association and its members. (Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, 253.) The requisite elements for applying the rule include the following: (1) evidence of reasonable investigation; (2) the weighing by the board of the costs and benefits of a particular course of action or considering any other factors in choosing to engage or not to engage in maintenance; and (3) evidence of an exercise of discretion to select among the means for discharging an obligation to maintain and repair common areas. (Affan v. Portofino Cove Homeowners Assn. (2010) 189 Cal.App.4th 930, 943.)

Defendant has not established any of the elements. It has not established that it investigated. It has not established that the board weighed the costs and benefits of a particular course of action or considered any other factors in choosing to engage or not engage in maintenance. It has not established that it exercised discretion to select among means for discharging an obligation to maintain and repair common areas. Instead, Defendant asserts that it acted in good faith when it responded to plaintiff’s single email notice of rotted wood. (Mot, pg. 10.) It also asserts that that it acted in the best interest of the community when it sought to determine the scope of Plaintiff’s concerns. (Mot, pg. 10.) It further asserts that it acted under the authority of the governing documents when it did not pursue the matter further after it received no additional concerns from Plaintiff. (Mot, pg. 10.) This is an incorrect application of the law and does not support Defendant’s request for summary judgment.