Judge Bruce G. Iwasaki, Case Number: 22STCV06321, Date: 2023-05-25 Tentative Ruling

Judge: Bruce G. Iwasaki, Case: 22STCV06321, Date: 2023-05-25 Tentative Ruling

Case Number: 22STCV06321 Hearing Date: May 25, 2023 Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date: May 25, 2023

Case Name: Scagliotti v. Friedman

Case No.: 22STCV06321

Matter: Motion for summary judgment or, in the alternative, motion for summary adjudication

Calendar No.: 7

Moving Party: Defendant Deborah Friedman, individually and as trustee

Responding Party: Plaintiff Stephanie Scagliotti

Tentative Ruling: The motion for summary judgment is granted.

Background and procedural history

Plaintiff Stephanie Scagioltti alleges she suffered injuries as result of the presence of mold in the apartment (Unit) she was renting from Defendant Deborah Friedman, in her individual capacity and as trustee of the Eschwege Family Trust, and located at 118 S. Flores Street, Los Angeles, CA 90048.

The Complaint alleges Plaintiff moved into the Unit in May of 2012. Shortly thereafter, Plaintiff began experiencing various medical issues which she alleges was attributable to conditions in the Unit, specifically toxic mold. On June 5, 2012 she visited the hospital for symptoms due to the conditions in the Unit. On October 26, 2012 she discovered unexplained bruises on her legs. On December 17, 2012 she suffered a seizure. Plaintiff was hospitalized in 2013 for severe pain. In May 2015, there was a water leak in the Unit that remained unfixed; eventually, the floorboards in the Unit began to rot. Throughout her tenancy she was hospitalized multiple times, and experienced unexplained weight loss and constant pain.

Plaintiff vacated the Unit on February 29, 2020. As Plaintiff was preparing to move-out, she discovered mold spores all over her personal items. Plaintiff alleges she continues to feel the effects of the prolonged mold exposure to this day.

Plaintiff filed this lawsuit on February 22, 2022. The Complaint contains causes of action for failure to provide habitable dwelling, breach of covenant and right to quiet enjoyment, private nuisance, unfair competition, and negligence.

Defendant Deborah Friedman, in her individual capacity and as trustee of the Eschwege Family Trust, (Landlord) now moves for summary judgment, or in the alternative, summary adjudication, on the grounds that all of Plaintiff’s claims are barred by the applicable statute of limitations.

Plaintiff opposed the motion for summary judgment arguing her claims are timely as a result of delayed discovery.

The Court finds that there is no material fact in dispute on the issue of the statute of limitations and delayed discovery. Based on these undisputed facts, the Court finds Plaintiff’s claims are barred by the applicable statute of limitations.

Legal Standard

“The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Ibid.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467; Code Civ. Proc., § 437c, subd. (c).)

Discussion

Defendant Landlord moves for summary judgment, or summary adjudication, on the grounds that each cause of action is barred by the applicable statute of limitations.

As a preliminary matter, Defendant’s motion for summary adjudication is defective. Defendant's separate statement fails to comply with Rule 3.1350(d)(1), which requires the separate statement to “separately identify” (A) each cause of action, claim for damages, or issue of duty that is the subject of the motion and (B) each supporting material fact claimed to be without dispute with respect to the particular cause of action, claim for damages, or issue of duty for which summary adjudication is sought. (See also, Rule 3.1350(h) [format for separate statements supporting motion for summary adjudication must include a heading stating the issue to be adjudicated].) Thus, the court will only consider the motion for summary judgment.

Statute of Limitations Analysis

A plaintiff must bring a claim within the limitations period after accrual of the cause of action. (Code Civ. Proc. § 312 [“Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued”].) “The limitations period ... runs from the moment a claim accrues. [Citations.] Traditionally at common law, a ‘cause of action accrues “when [it] is complete with all of its elements”—those elements being wrongdoing, harm, and causation.’ [Citation.] This is the ‘last element’ accrual rule: ordinarily, the statute of limitations runs from ‘the occurrence of the last element essential to the cause of action.’ [Citations.]” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192.)

There is no dispute that Plaintiff first suffered injuries caused by unsafe conditions in the Unit almost immediately after she moved into the Unit in 2012. The question is when each claim began to accrue. The court will therefore address the applicable statute of limitations as to each cause of action.

First Cause of Action for Failure to Provide Habitable Dwelling:

The Complaint alleges the parties’ lease agreement for the Unit imposed, among other terms, an implied warranty of habitability under California law such that Defendant “w[as] required to provide habitable premises to Plaintiff and failed to do so.” (Compl., ¶ 35.)

Plaintiff’s cause of action for breach of the warranty of habitability is predicated on her written lease agreement and, therefore, is “on the contract.” (Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1169; Civ. Code, § 1941 [A “warranty of habitability is implied by law in residential leases in this state”]; Green v. Super. Ct. (1974) 10 Cal.3d 616, 637.)) Therefore, this claim is subject to a four-year statute of limitations. (Code Civ. Proc, § 337, subd. (a).)

Second Cause of Action for Breach of Covenant and Right to Quiet Enjoyment:

The Complaint alleges Defendant Landlord’s “actions and failures” resulted in the presence of mold in the Unit, which interfered with Plaintiff’s quiet enjoyment and possession of the Unit. (Compl., ¶¶ 8-25, 53.)

Under Civil Code section 1927, “there is an implied covenant on the part of a landlord that a tenant shall have quiet enjoyment and possession of the premises during the continuation of the term.” (Reynolds v. Lau (2019) 39 Cal.App.5th 953, 967 [citing Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 512] italics added by Reynolds.)

This claim for breach of the covenant of quiet enjoyment, like the claim for breach of warranty of habitability, arises from the parties’ lease agreement. Accordingly, the quiet enjoyment claim is also subject to a four-year statute of limitations. (Code Civ. Proc, § 337, subd. (a).)

Third Cause of Action for Private Nuisance:

The Complaint alleges “[b]ased on the substandard, dilapidated, unsanitary, and unhealthy conditions at the Property, Defendants’ invasion of the Plaintiff’s interest in the use and enjoyment of the Property was substantial in that it caused the Plaintiff to suffer substantial actual damage.” (Compl., ¶ 59.) The Complaint further alleges Defendant had a responsibility not to create or maintain a private nuisance on the Property. (Compl., ¶ 56.)

Generally, the statute of limitations for a nuisance claim is three years. (Civ. Code § 338, subd. (b).) However, here the nuisance allegations are based on the same set of facts as the negligence cause of action; therefore the nuisance cause of action is subject to a two-year statute of limitations. (El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1348-1349.)

In opposition, Plaintiff contends that the nuisance and negligence cause of action are subject to the continuing nuisance doctrine. Plaintiff argues that if the “nuisance is continuing, as it is here, each repetition or continuance amounts to another wrong giving rise to a new cause of action.” (Opp., 7:1-2.)

Specifically, Plaintiff claims “there is ample evidence that the hazardous water intrusions into Plaintiff’s unit and the adjacent crawl space continued until she vacated the Property at the end of February 2020.” She therefore maintains that a continuing nuisance – the presence of mold or an ongoing leak – overcomes the statute of limitations defense.

Whether the statute of limitations bars a nuisance cause of action “turns on whether the wrongdoing is permanent or continuing.” (Madani v. Rabinowitz (2020) 45 Cal.App.5th 602, 607–608 (Madani).) Further, “[w]hether a nuisance is continuing or permanent depends ‘on the type of harm suffered.’ [Citation.] ‘[P]ermanent nuisances are of a type where “ ‘by one act a permanent injury is done, [and] damages are assessed once for all.’ ” ’ [Citation.] ... For a permanent nuisance, damages are ‘complete when the nuisance comes into existence,’ and an action must generally be brought ‘within three years after the permanent nuisance is erected.’ ” (Lyles v. State of California (2007) 153 Cal.App.4th 281, 291.)

“In contrast, a continuing [nuisance] is an intrusion under circumstances that indicate the [nuisance] may be discontinued or abated.... Continuing [nuisances] are essentially a series of successive injuries, and the statute of limitations begins anew with each injury.” (Starrh, supra, 153 Cal.App.4th at p. 592.) “Thus, if a ... nuisance is continuing, ‘ “an action may be brought at any time to recover the damages which have accrued within the statutory period, although the original [nuisance] occurred before that period.” ’ ” (Madani, supra, 45 Cal.App.5th at p. 608.)

In support of her continuing nuisance argument, Plaintiff cites Stevens v. Moon (1921) 54 Cal. App. 737 [involving an abatable nuisance arising from a eucalyptus tree roots projecting into a neighboring property] and Starrh & Starrh Cotton Growers (2007) 153 Cal.App.4th 583 [involving a continuing trespass arising from subsurface migration of polluted water from an adjoining property]. Plaintiff’s opposition fails to address the factual underpinning of these cases and seemingly relies on them simply to demonstrate that a nuisance may be treated as continuing under the law.

It is Plaintiff’s burden to demonstrate a nuisance is continuing. (CACI No. 2030 Affirmative Defense—Statute of Limitations—Trespass or Private Nuisance, p. 1238.) Plaintiff fails to do so. She offers no evidence that the nuisance was continuing, such as evidence tending to show the water intrusion varied in intensity and continued through the filing of the complaint. (See e.g., Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 594 [discussing the various tests to determine whether a trespass or nuisance can be discontinued or abated].) Nor did Plaintiff offer evidence that the problem could be fixed “ ‘at a reasonable cost by reasonable means.’ ” (Madani v. Rabinowitz (2020) 45 Cal.App.5th 602, 609.) Plaintiff’s argument that the conditions in the Unit she first encountered in 2012 were a continuing nuisance lacks any evidentiary support.

More importantly, based on her allegations, Plaintiff’s nuisance cause of action must be treated the same as the negligence claim, another reason she has not shown a continuing nuisance.

“[U]nder certain circumstances, the worlds of nuisance and negligence overlap and the two become merely alternative legal theories for redressing what is really the invasion of a single primary right: the right to the undisturbed enjoyment of one’s property and land.” (Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 104.) As noted above, the two claims rely on the same underlying factual allegations.

The holding in El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337—which was cited in Defendant’s moving papers and not addressed in Plaintiff’s opposition—illustrates this concept. In El Escorial, the court held that a nuisance claim for toxic mold contamination could not exist separate from the plaintiff's negligence claim. (Id. at p. 1348.) The court explained that the definition of nuisance is “so broad that it could be “ ‘applied indiscriminately to everything.” ’ ” (Id. at p. 1348 [quoting City of San Diego v. U.S. Gypsum Co. (1995) 30 Cal.App.4th 575, 585].) Permitting traditional torts to be litigated as nuisance claims “would allow nuisance to “ ‘become a monster that would devour in one gulp the entire law of tort.” ’ ” (El Escorial, supra, 154 Cal.App.4th at p. 1348.) In El Escorial, the “factual allegations incorporated into the nuisance cause of action involved negligence and defective workmanship.” Therefore, the Court concluded that, “[w]here negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (El Escorial, supra, 154 Cal.App.4th at p. 1349; see Melton v. Boustred (2010) 183 Cal.App.4th 521, 542–543 [nuisance claim failed with negligence claim where the nuisance claim relied on the same facts].) The Court further explained: “A cause of action alleging a continuing nuisance is usually accompanied by a request for an injunction. But Escorial only sought the same monetary relief that it requested in its first cause of action [for negligence].” (Id. at 1349.)

Here, Plaintiff alleges no additional facts in support of the nuisance claim; the nuisance claim thus relies entirely on the facts asserted in Plaintiffs' cause of action for negligence. (Compl., ¶¶ 6-32, 55-59, 64-67.) And the Complaint seeks no injunctive relief.

Under corresponding facts, the El Escorial court concluded that the nuisance claim should be treated as negligence claim. (Id. at 1349 [“Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.”].) The nuisance claim “stands or falls with the determination of the negligence cause of action” in such cases. (Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, 954, fn. 1.)

Accordingly, the Court rejects Plaintiff’s contention that an alleged continuing nuisance prevents the third cause of action from being time barred.

Fourth Cause of Action for Violation of Unfair Competition Law:

The Complaint alleges liability under the Unfair Competition Law for “maintaining unsafe conditions” under unspecified California and local municipal codes, and for allowing mold and leaks to occur at the Unit. (Compl., ¶ 62.)

The statute of limitations for Business and Professions section 17200 is four years. (Bus. & Prof. Code, § 17208 [“Any action to enforce any cause of action pursuant to this chapter shall be commenced within four years after the cause of action accrued”].)

Fifth Cause of Action for Negligence:

Finally, the Complaint also alleges Defendant Landlord owed Plaintiff a duty of reasonable care to maintain the Property in a safe, habitable, tenantable condition, and breached that duty of reasonable care in that they failed to reasonably maintain the premises. (Compl., ¶¶ 65-66.)

A negligence cause of action is governed by a two-year statute of limitations. (Code Civ. Proc., § 335.1.)

Delayed Discovery Analysis

None of Plaintiff’s causes of action have a statute of limitations exceeding four years. (Code Civ. Proc., §§ 337, 335.1; Bus. & Prof. Code § 17208.) Thus, unless the delay in bringing this action is excused, Plaintiff’s claims are barred.

“An important exception to the general rule of accrual is the ‘discovery rule ....’ ” (Fox v. Ethicon Endo–Surgery, Inc. (2005) 35 Cal.4th 797, 807.) “ ‘A cause of action under this discovery rule accrues when “ ‘plaintiff either (1) actually discovered his injury and its negligent cause or (2) could have discovered injury and cause through the exercise of reasonable diligence [italics added].’ ” [Citation.] The limitations period begins once the plaintiff has notice or information of circumstances to put a reasonable person on inquiry. [Citation.] Subjective suspicion is not required. If a person becomes aware of facts which would make a reasonably prudent person suspicious, he or she has a duty to investigate further and is charged with knowledge of matters which would have been revealed by such an investigation. [Citations.]’ ” (McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 108 [italics in original].)

The Complaint appears to allege Plaintiff did not discover the cause of her injuries until around the time she moved out in February 2020. (Compl., ¶¶ 21-23.)

The evidence submitted with the motion for summary judgment indicates Plaintiff was on notice of her claims—both the injury and its cause—much earlier. In opposition to the motion for summary judgment, Plaintiff argues “Plaintiff was not put on notice of the existence of her claims until July 2020, when she discovered that the water intrusions in her unit caused dangerous toxic mold to grow and enter her bloodstream after undergoing an allergy blood test and discussing the results with her doctor.” (Opp., 6:20-24.)

In support of the motion for summary judgment, Defendant submits evidence that Plaintiff was aware of a mold issue as early as May 4, 2015 when she discovered water leaking from the ceiling of the Unit. During Plaintiff’s deposition, she states that she did not “even know there was a mold issues until [she] saw water leaking from the ceiling and then [she] got blood tested for mold sensitivity, which came back positive.” (Putnam Decl., Ex. K [Plaintiff’s Depo. 55:8-23].) The ceiling was leaking in 2014. (Putnam Decl., Ex. K [Plaintiff’s Depo. 55:8-23].) She further states that she had her blood tested in 2014, and, after she discovered her mold sensitivity, she asked the Property Manager if the Unit had ever been tested for mold or if there had been other water leaks. (Putnam Decl., Ex. K [Plaintiff’s Depo. 56:6-22].) She was told “no” and states she did not believe it was mold until she discovered mold in her kitchen in 2018. (Putnam Decl., Ex. K [Plaintiff’s Depo. 56:6-22].) Although Plaintiff disputes this evidence, she relies on her unverified Complaint. But her obligation is to offer admissible evidence; Plaintiff cannot rely on her pleadings. (Code Civ. Proc., § 437c, subd. (p)(2) [“plaintiff . . . shall not rely upon the allegations . . . of its pleadings to show that a triable issue of material fact exists. . .”]; Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4^th 1040, 1053-1054 [“Citation to their own pleading is meaningless: It is fundamental that to defeat summary judgment a plaintiff must show ‘specific facts’ and cannot rely on allegations of the complaint”].)

Plaintiff asserted in response to discovery that in 2012-2013, she discovered “soot and black dust on the floor” and the walls “would turn black.” (Putnam Decl., Ex. G [Plaintiff’s Resp. to Special Interrogatories No. 19.].) She asked for mold testing of the Unit in 2014 and further noticed the apartment had a “funny smell.” (Putnam Decl., Ex. G [Plaintiff’s Resp. to Special Interrogatories No. 19.]; Putnam Decl., Ex. K [Plaintiff’s Depo. 55:8-23].)

Moreover, after she received the results of her blood test, Plaintiff’s doctor, Dr. Jonathan Corren, gave her instructions in 2014 or 2015 on how to prevent mold, and Plaintiff followed those instructions with respect to the Unit. (Putnam Decl., Ex. K [Plaintiff’s Depo. 26:2-21].)

Lastly, it is undisputed Plaintiff found black mold in the windows of her Unit in 2016, and in the Unit’s kitchen in 2018. (Putnam Decl., Ex. K [Plaintiff’s Depo. 56:6-22; 61:5-9; 61:23-62:6; 62:23-25.].)

In opposition, Plaintiff argues “[W]here the ‘sworn statement by a plaintiff claiming ignorance’ is not contradicted by previous admissions or concessions, the rule is that facts alleged in the declaration opposing the motion must be accepted as true for purposes of the summary judgment motion.” (Opp., 6:24-27 [citing McOwen v. Grossman (2007) 153 Cal.App.4th 937, 946-947.].) However, Plaintiff does not submit any sworn statement contesting knowledge of any facts. In fact, Plaintiff’s only evidence in opposition is her unverified Complaint and copies of three mold reports from February and March 2020. Thus, the material facts before this Court are essentially undisputed.

“While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper. [Citation.]” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112; see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [a triable issue of material fact exists only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof].)

It is thus undisputed that Plaintiff was aware of facts that would put a reasonably prudent person on notice of an unsafe condition in the Unit no later than 2016. By this time, Plaintiff had observed signs of mold and black mold itself, taken a blood test indicating a sensitivity to mold, observed water damage that she suspected could and would cause mold, obtained medical advice recommending she take precautions against mold in her Unit, and inquired from Defendant as to whether there could be mold in the Unit.

In response to this evidence, Plaintiff relies on evidence that she was told by the Property Manager the Unit had not been tested for mold but there was no mold in the Unit. (Putnam Decl., Ex. K [Plaintiff’s Depo. 56:6-20]; Putnam Decl., Ex. G [Plaintiff’s Resp. to Special Interrogatories No. 19.].)

Plaintiff’s reliance on the Property Manager incorrectly stating there was no mold in the Unit while also admitting that there had been no mold tests, was not reasonable and did not relieve her of her responsibility to investigate. Misrepresentations are a part of every fraud cause of action; while Plaintiff does not specifically allege a fraud claim, the duty to investigate arises if the circumstances indicate that the defendant's representations may have been false. (Vai v. Bank of America (1961) 56 Cal.2d 329, 343.) “ ‘[D]iscovery is different from knowledge, [so] that where a party defrauded has received information of facts which should put him upon inquiry, and the inquiry if made would disclose the fraud, he will be charged with a discovery as of the time the inquiry would have given him knowledge.’ ” (Ibid.)

Thus, when Plaintiff began suffering multiple unexplained illnesses and injuries she was “required to conduct a reasonable investigation after becoming aware of an injury” and therefore was “charged with knowledge of the information that would have been revealed by such an investigation.” (Fox, supra, 35 Cal.4^th at p. 808.)

The undisputed facts suggest Plaintiff waited until 2020 to conduct her reasonable investigation—days before she moved out of the Unit. That is, on February 27, 2020, Plaintiff had the Unit inspected for mold by The Mold Guy and received a report, which found “elevated counts of Aspergillus/Penicillium and Chaetomium” at various places in the Unit. (Putnam Decl., Ex. M [Mold Guy Report]; see also Putnam Decl., Ex. C [Plaintiff’s Resp. to Interrogatory No. 9.1].) However, no new facts appear to have arisen to have spurred this further investigation. Relying on roughly the same information Plaintiff had in 2016, Plaintiff waited to conduct further inquiry to affirmatively confirm the presence of mold in her Unit until 2020.

Under the delayed discovery rule, Plaintiff is charged with the knowledge gained from this reasonable investigation in 2020 at the time she should have conducted the inquiry in 2016. (See McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 108 [“If a person becomes aware of facts which would make a reasonably prudent person suspicious, he or she has a duty to investigate further and is charged with knowledge of matters which would have been revealed by such an investigation.”].)

Based on the foregoing, the Court finds summary judgment is proper. “[T]he question of when ‘a plaintiff reasonably should have discovered facts for purposes of the accrual of a cause of action or application of the delayed discovery rule ...’ [may] be decided as a matter of law ...” only “if the undisputed facts do not leave any room for reasonable differences of opinion” (Czajkowski v. Haskell & White (2012) 208 Cal.App.4th 166, 175-176.) Here, the undisputed material facts demonstrate Plaintiff had adequate information to put her on inquiry notice and she had the opportunity to obtain the knowledge from other sources. Plaintiff suspected mold as early as 2014 and failed to undertake a reasonable investigation until she obtained a mold report in 2020.

Conclusion

The Court finds that Defendant has met her burden of showing a complete defense to Plaintiff’s Complaint. The undisputed material facts show the statute of limitations began to run for all claims by 2015. Further, Plaintiff had notice/information of circumstances that that would put a reasonable person on inquiry notice at the latest as of 2016. Therefore, even relying on delayed discovery, the undisputed material facts demonstrate Plaintiff was aware of or should have been aware of her accrued claims as of 2016.

The motion for summary judgment is granted.