Judge: Colin Leis, Case: 21STCV13575, Date: 2024-03-14 Tentative Ruling
Case Number: 21STCV13575 Hearing Date: March 14, 2024 Dept: 74
Graham Nudd v.
Elizabeth Shaw, et al.
Defendant Elizabeth
Shaw’s Motion for Summary Judgment or, in the alternative, Summary Adjudication
The court considered the moving papers, opposition, and reply.
BACKGROUND
This action arises from a dispute
over premises liability.
In Case No. 19STCV07203, Margaret
Shaw filed a complaint against Dorina Schiro, Alfred Verdi, Sea Cliff Realtors,
Graham Nudd, and Laura Nudd on February 28, 2019. The complaint alleges breach
of implied warranty of habitability and negligence. On March 16, 2020, Margaret
Shaw added Ocean Towers Housing Corporation (Ocean Towers) as a defendant. On
March 27, 2020, Margaret Shaw added FirstService Residential California, LLC
(FirstService) as a defendant.
In Case No. 19STCV07203, Ocean
Towers and FirstService filed a cross-complaint against Graham Nudd for
indemnification on November 23, 2020.
In this action, Plaintiff Graham
Nudd (Plaintiff) filed a first amended complaint (FAC) against Margaret Shaw’s
mother, Elizabeth Shaw (Defendant), on October 12, 2021. The complaint in this
action alleges breach of contract.
On August 18, 2023, Defendant filed
this motion for summary judgment or, in the alternative, summary adjudication.
The motion targets Plaintiff’s sole cause of action for breach of contract.
EVIDENCE
The court preserves the parties’
evidentiary objections.
LEGAL
STANDARD
“¿[A] motion for summary judgment
shall be granted if all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.¿” (¿¿Code Civ. Proc., § 437c, subd. (c)¿¿.) The
moving party bears the initial burden of production to make a prima facie
showing that there are no triable issues of material fact. (¿¿Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850¿¿.) If the moving party
carries this burden, the burden shifts to the opposing party to make a prima
facie showing that a triable issue of material fact exists. (¿¿Ibid.¿¿) 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¿¿.)
DISCUSSION
Defendant argues Plaintiff’s
cause of action for breach of contract fails. To prevail on this claim, a
plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the
contract or excuse for nonperformance, (3) the defendant’s breach, and (4)
resulting damage to the plaintiff. (Careau & Co. v. Security Pacific
Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.)
Breach
The court notes that in the
operative complaint, Plaintiff alleges Defendant breached the parties’ lease by
not promptly notifying Plaintiff of a leak on the premises. (FAC, ¶ 78.)
In support of her motion for summary
judgment, Defendant argues she did not breach the lease. To that end, Defendant
points to section 11(A) of the lease, which provides that the “[t]enant shall
immediately notify the landlord, in writing, of any problem, malfunction or
damages with any item […] on the property.” (Christovich Decl., ¶ 3; Ex. B.)
Moreover, section 39 states that “[n]otices may be served at the following
address or at any other location subsequently designated: Landlord: Mr. and
Mrs. Nudd. grahamnudd@btinternet.com.” (Christovich Decl., ¶ 3; Ex. B.)
According to Defendant, Margaret Shaw’s husband observed a refrigerator leak on
October 1, 2018. Defendant thereafter learned about the leak. (Motion, p.
6:16-18.) But Defendant did not consider the leak a problem because she
believed Margaret Shaw’s husband had fixed it. (Christovich Decl., ¶ 6; Ex. F,
pp. 34:16-36:3.) Defendant claims she had no duty under the lease to report a
resolved problem. However, the lease also required Defendant to notify
Plaintiff of any malfunction on the premises, which would include a leaking refrigerator.
Defendant did not immediately report the malfunction to Plaintiff when it first
materialized. Thus, whether Defendant breached the lease is a triable issue of
material fact.
Causation
As a preliminary matter, the
court notes Plaintiff alleges that Defendant’s failure to notify him of the
leak promptly caused the floorboards to become warped, which in turn caused
Margaret Shaw’s accident. (Opposition, p. 9.) As a further consequence,
Margaret Shaw sued Ocean Towers and FirstService, who in turn filed a
cross-complaint against Plaintiff for indemnification. Plaintiff seeks attorney
fees he incurred defending against the cross-complaint as damages.
In support of her motion for summary
judgment, Defendant contends that even if she breached the lease, the breach
did not cause damages to Plaintiff. That is, despite Defendant’s failure to
notify Plaintiff of the leak on October 1, 2018, Margaret Shaw’s husband
reported the problem to Plaintiff’s leasing agent that same day. (Christovich
Decl., ¶ 2; Ex. A, Ex. 2.) According to Defendant, the leasing agent’s
knowledge was imputed to Plaintiff. (Hall v. Rockcliff Realtors (2013)
215 Cal.App.4th 1134, 1140 [“Information about a property known by an agent is
imputed to the owner.”].) If so, Plaintiff was aware of the leak in October
2018, and his failure to fix it (or shut off water to the refrigerator) for
months caused the floorboards to become warped, which in turn caused Margaret
Shaw’s accident on November 30. Thus, Defendant has met her prima facie burden,
meaning the burden shifts to Plaintiff to establish a triable issue of material
fact.
Plaintiff in turn offers evidence
suggesting the leasing agent was not Plaintiff’s managing agent of the
property. If so, the leasing agent would not have been responsible for
arranging repairs on the premises. (Moss Decl., ¶ 7; Ex. F, pp. 58:2-60:1, p. 148:6-18;
149:19-150:16; 165:17-166:1; 171:19-172:10.) Consequently, the leasing agent
would have been outside the scope of her authority when she responded to
Margaret Shaw’s husband’s complaint about the leaking refrigerator on October
1, 2018. As a further consequence, the knowledge she acquired would not have
been imputed to Plaintiff. (Columbia Pictures Corp. v. De Toth (1948) 87
Cal.App.2d 620, 630 [“The agent acting within the scope of his authority, is,
as to the matters existing therein during the course of the agency, the
principal himself.”].) Indeed, the leasing agent told Margaret Shaw’s husband
that he needed to contact Plaintiff directly about the leak, as required by the
lease. (Moss Decl., ¶ 8; Ex. G.) Thus, there is a triable issue of material
fact whether Plaintiff was aware of the leak by October 1, 2018, and caused the
accident by failing to fix the leak before the floorboards became warped.
Defendant further points out that
Margaret Shaw’s husband directly notified Plaintiff when the leak reappeared on
November 15, 2018, around two weeks before the accident. (Christovich Decl., ¶
2; Ex. A; Ex. 3.) By that time, though, the floorboards that caused Margaret
Shaw’s accident were already warped from the leak on October 1, 2018. (Motion,
pp. 5:28-6:3.) Defendant has not offered sufficient evidence suggesting that
Plaintiff could have had the leak and warped floorboards repaired in two weeks.
Consequently, Defendant has not demonstrated how Plaintiff’s knowledge of the leak
and warped floorboards on November 15, 2018, broke any link in the causal
chain. Thus, there are triable issues of material fact on the issue of
causation.
Doctrine of Avoidable
Consequences
Defendant argues Plaintiff’s
cause of action fails under the doctrine of avoidable consequences, which
provides that a person injured by another’s wrongful conduct will not be
compensated for damages that the injured person could have avoided by
reasonable effort. (State Dept. of Health Services v. Superior Court (2003)
31 Cal.4th 1026, 1043) The doctrine applies to contracts. (Ibid.)
According to Defendant, Plaintiff knew about the leak by October 1, 2018, and
could have fixed the leak and stopped the floorboards from warping before
Margaret Shaw’s accident on November 30, 2018. (Christovich Decl., ¶ 2; Ex. A,
Ex. 2.) As discussed above, though, there is a triable issue of material fact
whether Plaintiff knew about leak by October 1, 2018. Defendant also contends Plaintiff
knew about the leak by November 15, 2018, and could have prevented the accident
that happened on November 30, 2018. But Defendant has not offered sufficient
evidence suggesting that Plaintiff could have had the leak and warped
floorboards repaired in two weeks. Thus, Defendant has not met her prima facie
burden on this issue.
Damages
As a preliminary matter, the court
notes Plaintiff seeks attorney fees he incurred defending against the
cross-complaint as damages. Moreover, Plaintiff contends he incurred the
attorney fees due to Defendant’s breach of the lease.
In support of her motion for summary
judgment, Defendant argues Plaintiff cannot recover indemnification damages,
which means Defendant cannot establish a necessary element of his breach of
contract claim. To that end, Defendant contends the parties’ lease does not
provide for such damages. (Christovich Decl., ¶ 3; Ex. B.) Moreover, section 46
of the lease includes an integration clause: “All understandings between the
parties are incorporated in this Agreement. Its terms are intended by the
parties as a final, complete, and exclusive expression of their agreement with
respect to its subject matter […].” Thus, the lease itself does not permit
recovery of indemnification damages and Defendant has satisfied her prima facie
burden. (See EPA Real Estate Partnership v. Kang (1992) 12 Cal.App.4th
171, 177.)
However, Plaintiff does not seek
damages under an indemnification clause in the lease. Rather, Plaintiff is
pursuing attorney fees he incurred defending against the cross-complaint,
which, Plaintiff contends, would not have been filed if Defendant had not
breached the lease. Generally, the party employing the attorney must pay
attorney fees, unless an agreement or statute provides otherwise. (Prentice
v. North Am. Title Guaranty Corp. (1963) 59 Cal.2d 618, 620.) But Plaintiff
cites De La Hoya v. Slim’s Gun Shop (1978) 80 Cal.App.3d Supp. 6, 9-10,
for an exception to this rule. There, the court held that a party who is
involved in litigation with third-parties, due to a defendant’s breach of
contract, may recover from the defendant attorney fees as damages incurred in
defending the third-party litigation. (Ibid.) Thus, whether Plaintiff is
entitled to such damages is a triable issue of material fact because
Defendant’s breach is also a triable issue.
Alternatively, Defendant contends
Plaintiff cannot recover indemnification damages because the parties did not
contemplate such damages when they entered the contract. (See Erlich v.
Menezes (1999) 21 Cal.4th 543, 550.) Defendant claims the parties could not
have anticipated the events leading to the cross-complaint against Plaintiff,
which form the basis of his request for attorney fees. The court disagrees. The
foreseeability of third-party litigation arising from a breach of the lease is
a triable issue.
CONCLUSION
The
court denies Defendant’s motion for summary judgment.