Judge Deirdre Hill, Case 19TRCV00434 2022-09-22 Tentative Ruling

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On May 16, 2016, Plaintiff Jeff Widmann filed a omplaint against Defendant Edward Leung, as an individual and as Trustee for Leung Edward T. Trust and Does 1 through 50 alleging six causes of action for (1) breach of contract, (2) breach of implied covenant of quiet enjoyment, (3) breach of covenant of good faith and fair dealing, (4) nuisance, (5) negligence, (6) unfair business practices in violation of Bus. & Prof. Code §17200. This action arises out of a breach of contract resulting from a noise disruption.

On January 13, 2020, plaintiff filed an amendment designating Coreology 2.0 LLC as Doe 3.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “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.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“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, 159 Cal. App. 4th at 467; CCP §437c(c). “’An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.’” Lyons v. Security Pacific National Bank (1995) 40 Cal. App. 4th 1001, 1014 (citation omitted).

Defendant’s objections, Nos. 1-10 are overruled. Declarant establishes personal knowledge and foundation for his conduct. In overruling the objections, the court finds that plaintiff has sufficient first-hand knowledge to state these facts. See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.

Defendant Coreology 2.0, LLC (sued and served herein as Doe 3) requests summary judgment on the SAC (4^th cause of action for nuisance and 5^th cause of action for negligence) on the grounds that there are no triable issues of material fact and as a matter of law it prevails.

In the SAC, plaintiff alleges that in 2017, plaintiff and defendant Leung entered into a commercial lease agreement whereby plaintiff would lease from defendant Leung the premises located at 2405 N. Sepulveda Boulevard, Manhattan Beach, California 90266 (“Premises”). SAC ¶ 9. The Lease was to commence on October 1, 2017, for a five-year term. Id. ¶ 9. Coreology defendants were located adjacent to plaintiff’s Premises at 2403 N. Sepulveda Boulevard, Manhattan Beach, California 90266. Id. ¶ 10. Defendant Fit On was located adjacent to plaintiff’s Premises at 2407 N. Sepulveda Boulevard, Manhattan Beach, California 90266. Id, ¶ 11. Coreology defendants and defendant Fit On were tenants of defendant Leung as well. Id., ¶ 12. Plaintiff would pay defendant rent and in consideration plaintiff’s payment of rent, defendant Leung agreed to provide plaintiff with possession of the premises, with quiet enjoyment of the Premises, and to act in good faith and fair dealing by not engaging in conduct that will deprive plaintiff of the benefits of the Lease. Id., ¶ 15. Plaintiff obtained a license for a spa, however, due to Coreology defendants and defendant Fit On, which, during classes throughout the day, played extremely loud music, with a loud bass causing immense vibrations through the walls, and with the fitness instructors yelling through a microphone. Id., ¶ 21. Due to the defects at the Premises, failure of defendant Leung in providing quiet enjoyment of the Premises, and failure of the Coreology defendants and defendant Fit On to soundproof their studios, the noise and vibrations emanating into the Premises from either side caused substantial interference such that there could be virtually no viable commercial use of the Premises. Plaintiff alleges that defendants were in violation of 3.1 of the lease agreement. Id., ¶ 23. Plaintiff is informed and believes that defendants have also violated state and local laws by, among other ways, failing to construct or maintain the structure of the Premises as required under California Building Code Section 5.507.4. Id., ¶ 25. Plaintiff incurred costs and lost profits every day, and defendants failed to respond to any of plaintiff’s complaints. Id., ¶ 24-28.) Plaintiff suffered damages as a result of defendants’ conduct. Id., ¶ 32-33.)

Under California law, a nuisance is “Anything which is injurious to health, … or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . .” Civil Code § 3479. “[L]iability for nuisance does not require proof of damage to the plaintiff’s property; proof of interference with the plaintiff’s use and enjoyment of that property is sufficient.” San Diego Gas & Electric Co. v. Superior Court, 13 Cal. 4th 893, 937 (1996). Furthermore, the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial (i.e., that it caused the plaintiff to suffer “substantial actual damage”) and must also be unreasonable (“of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land”). Id. at 938.

The elements of nuisance are: (1) the interference with plaintiff’s use and enjoyment of plaintiff’s property; (2) invasion of plaintiff’s use and enjoyment involves substantial actual damage; and (3) interference is unreasonable in nature, duration, or amount. Id., CACI 2021.

These two additional requirements “flow [] from the law’s recognition that ‘Life in organized society and especially in populous communities involves an unavoidable clash of individual interests. Practically all human activities unless carried on in a wilderness interfere to some extent with others or involve some risk of interference, and these interferences range from mere trifling annoyances to serious harms. It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference and must take a certain amount of risk in order that all may get on together. The very existence of organized society depends upon the principle of “give and take, live and let live,” and therefore the law of torts does not attempt to impose liability or shift the loss in every case in which one person’s conduct has some detrimental effect on another. Liability for damages is imposed in those cases in which the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least without compensation.’” Id. at 937-38.

The SAC alleges that defendant has committed a nuisance by continuously permitting extremely loud noise and vibrations to emanate from their studios onto plaintiff’s Premises. SAC ¶ 53. Plaintiff alleges that acoustic specialists recorded the noise entering the Premises from defendant’s studios at over 100 decibels, well above the acceptable and safe decibel level of 70 decibels. Id.

The court notes that in the SAC, plaintiff does not assert whether he is making a claim for private or public nuisance. Based on plaintiff’s allegations, it appears that he is making a claim for private nuisance.

Defendant argues that there is no viable claim for private nuisance. Defendant COREOLOGY has operated its Pilates fitness studio out of the space adjacent to the Widmann Premises since 2015 and has utilized a business model in which it has offered classes led by instructors on microphones and music playing seven days a week years before plaintiff even inquired about the Widmann Premises. (SSUF Nos. 12- 13.) Thus, COREOLOGY's conduct was not for the sole purpose of causing harm to plaintiff.

Defendant’s presents evidence to support the following facts: Defendant contends that plaintiff was aware that Widmann Premises was sandwiched between two pre-existing fitness studios prior to and at the time he leased the premises. (SSUF Nos. 35-37.) Defendant contends that plaintiff heard an instructor and music coming from FIT ON prior to entering into the lease yet leased the premises anyway. (SSUF No. 38; SSUF No. 42.) Plaintiff heard noise emanating from COREOLOGY into his premises during construction, but proceeded to remove drywall and create a large cutout six to eight inches into the wall in order to utilize the space (SSUF Nos 51, 53, and 56.). Plaintiff added some sound-deadening material in the small cutout on the COREOLOGY side of the Widmann Premises, but did not install any sound-deadening material in the large cutout on the COREOLOGY side of the Widmann Premises. (SSUF No. 64.). Plaintiff did not consult with a sound proofer or expert who could propose changes to minimize the sound on the COREOLOGY wall and refused Wolfenden's offer to pay for the sound portion of plaintiff’s space behind the COREOLOGY wall (SSUF Nos. 77-79). Plaintiff rejected Leung’s offer to relocate Blossom Spa to a different space in the complex (SSUF Nos. 80-81). Plaintiff has not made any changes to the wall design and has not attempted to reopen his spa since his soft opening and beginning conversations with Leung and COREOLOGY regarding noise (SSUF Nos. 82-83.). Defendant argues that as stated above, there were several instances in which plaintiff could have practicably avoided the alleged invasion and harm but failed to do so.

Defendant further contends that COREOLOGY offers instructor-led classes seven days a week, where music plays on speakers and instructors use microphones to guide classes. (SSUF No. 14.) Defendant asserts that before plaintiff signed the Widmann Lease, plaintiff was inside the Widmann Premises when he heard an instructor and music coming from the adjacent business, FIT ON. (SSUF No 38.) Despite plaintiff’s experience as a contractor and in the spa business, in addition to his pre-existing knowledge of the noise from FIT ON infiltrating the Widmann Premises, plaintiff still proceeded to lease the premises. It is undisputed that pursuant to the lease, plaintiff accepted the premises “as-is,” and the burden of making improvements in the space was on plaintiff. (SSUF No. 33.) Pursuant to the Widmann Lease, plaintiff agreed that he will “not create a nuisance to other Tenants in the Property. . . .” nor “use any apparatus or machine which makes undue noise or causes vibration in any portion of the Property or otherwise interfere with, annoy, or disturb any other Tenant in its normal business operations or Landlord in its management of the Property.” (SSUF 34.) Pursuant to the Lease Agreement, plaintiff also waived any defects in the leased premises and acknowledged and accepted (1) the Leased Premises as suitable for the purpose for which they are leased and (2) the Property and every part and appurtenance thereof as being in good and “satisfactory condition.” (Id.)

Defendant also contends that COREOLOGY had been operating its Pilates fitness studio out of the location since in or around 2015 years before plaintiff expressed an interest in renting the space next door and years before plaintiff leased the Widmann Premises. (SSUF Nos. 11-12.] Within a couple weeks to a month prior to signing the Widmann Lease, plaintiff was aware that there was noise generated by the adjacent businesses. (SSUF No. 39.) Despite this knowledge, plaintiff leased the Widmann Premises for the purpose of owning and operating a spa. (SSUF No. 31.) Therefore, defendant argues, plaintiff came to the alleged nuisance. Defendant specifically cite Civil Code § 3515 which provides “a person who consents to an act is not wronged by it.

Defendant’ evidence shows that plaintiff had been aware of the noise prior to entering the lease agreement, was an experienced contractor, worked in the spa business, and signed a lease agreement after becoming aware of the noise. Pursuant to Civil Code § 3515, a person who consents to an act is not wronged by it. Defendant has met its initial burden showing that plaintiff consented to the noise as it was present prior to plaintiff signing the lease agreement and operating his spa business in between two fitness locations that both used sound to guide their fitness classes.

Plaintiff attests that prior to the signing of the lease of the Property, no one disclosed the excessive noise that Coreology and FitOn created while operating their businesses. Therefore, plaintiff argues, it was impossible for plaintiff to accept the noisy space “as is” per the lease agreement or to otherwise consent to its existence. On November 27, 2017, plaintiff signed the lease for the Property. After signing the lease, plaintiff performed construction on the property and discovered that Coreology was also creating excessive noise. [Widmann Declaration ¶ 2-7.] Despite plaintiff's best attempt at dampening the noise by erecting soundproofing within his space and complaining to defendants, the noise continued to persist and could be heard at over 100 decibels from within plaintiff's space. Defendants completely refused to erect soundproofing from within their spaces. [Widmann Declaration ¶ 7.] As a result of the excessively loud noise created by Coreology and FitOn, plaintiff's inability to remedy the sound within his space, and defendants' failure to cooperate to mitigate the noise, plaintiff was unable to operate his business because the excessive noise ruined the experience for customers. Plaintiff experienced substantial damage because he was forced to close his business. [Widmann Declaration ¶ 13.]

Plaintiff also argues that he did not willingly come to the nuisance and did not assume the risk. Defendant’s claims that plaintiff assumed the risk of harm because plaintiff saw the signs for Coreology and FitOn on either side of the Property but defendant misrepresents that plaintiff was aware of noise from both businesses prior to signing his lease. [SSDF 39; Widmann Declaration ¶ 3-5.] Plaintiff's testimony actually stated that he was only aware of FitOn's noise and not both businesses prior to signing his lease. [SSDF 39; Widmann Declaration ¶ 3-5.] Plaintiff first became aware of excessive noise coming from FitOn in October 2017 after he had already spent substantial time and money to obtain the entitlement from the City necessary to operate his business. [SSDF 39; Widmann Declaration ¶ 3-5.] Plaintiff was optimistic about resolving the issue and signed his lease in November 2017. Later, defendant first became aware of noise coming from Coreology during construction. [Widmann Declaration ¶ 3-7.] Prior to signing of the lease of the Property, no one disclosed to plaintiff the excessive noise that Coreology and FitOn created while operating their businesses. Therefore, “it was impossible for me to accept the noisy space ‘as is’ per the lease agreement.” [Widmann Declaration ¶ 4.]

The court finds that plaintiff has met his burden of showing a triable issue of material fact exists as whether plaintiff consented and assumed the risk of the noise that was present prior to plaintiff signing the lease. Plaintiff presents evidence that he was unaware of the noise, and nothing was disclosed to him prior to the signing the lease agreement. Defendant also tried to remedy the noise by soundproofing the building, however, to no avail.

The elements of a negligence cause of action are: (1) a legal duty of care; (2) a breach of that duty; and (3) proximate cause resulting in injury.” McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.

Defendant argues that Coreology owed no duty to plaintiff and that plaintiff assumed the risk of harm.

The SAC alleges defendant Leung as lessor to the Lease and as owner of the Premises owed a duty of care to plaintiff, pursuant to the Lease and local and state laws, including, but not limited to, a duty to comply with all building, health, fire and safety codes, ordinances, regulations, and other laws applying to the building and maintaining of the structure of the Premises. SAC ¶ 62. Coreology defendants and defendant Fit On as adjacent neighbors owed plaintiff a duty of reasonable care in operating their business so as not to interfere with plaintiff’s use of the Premises. Coreology defendants and defendant Fit On were negligent in the use of their property in that they permitted extremely loud noise and vibrations to emanate from their studios into the Premises. Id. ¶ 63. Plaintiff experienced substantial interference with use and quiet enjoyment of the Premises as a result of defendants’ acts or omissions and suffered damages. Id., ¶ 64-65.

Defendant argues that it did not owe a plaintiff a duty. Defendant presents evidence to support the following facts: Pursuant to the Coreology Lease, COREOLOGY's permitted use of the premises is "for Pilates fitness studio/Pilates equipment retail sales, retail juice bar, retail apparel/fitness related retail uses." [SSUF 17.] Prior to entering into the COREOLOGY LEASE, Wolfenden informed Leung of the type of business COREOLOGY is and that COREOLOGY played music during its fitness classes. [SSUF 18.] Therefore, plaintiff is not a party to the Coreology Lease, and consequently, any duties owed by COREOLOGY to LEUNG by way of the Coreology Lease were not assigned to plaintiff. Therefore, COREOLOGY did not owe plaintiff a duty.

Defendant presents the same arguments as under the nuisance claim, stating that plaintiff consented, had knowledge of the noise, and assumed the risk of harm.

Plaintiff’s undisputed facts established the following. Defendant claims that they do not owe plaintiff a duty because Coreology's owner, Robert Wolfenden allegedly informed Leung of the type of business that Coreology is and that Coreology played music during its fitness classes. [SSDF 18.] However, plaintiff disputes the fact that Coreology did not inform Leung that they blast their music at excessively loud levels. [Plaintiff's Exhibit A- Deposition of Robert Wolfenden Pg. 27, lines 9-20.] Plaintiff also argues that although plaintiff is not a party to defendant's lease with Leung, defendant owes a duty to plaintiff. Paragraph 3.1 of the lease created a duty to not cause a nuisance to other tenants and disrupt their use of their property, and plaintiff is a party that the clause is designed to protect. [Defendant's Exhibit E - Coreology 2.0, LLC's Lease Agreement.] Further, Coreology was aware that their noise was in violation of the lease because Leung's son sent an email to Coreology on behalf of Leung, notifying Coreology of plaintiff's noise complaint and that Coreology was in violation of their lease. [SSDF 70; Exhibit P - Emails Re: Plaintiffs Noise Complaint.]

Additionally, pursuant to Manhattan Beach Municipal Code 5.48.160, it is illegal for any commercial property owner to operate any source of noise that is above 85 decibels. From within plaintiff's Property, noise from Coreology could be heard at over 100 decibels. [Widmann Declaration ¶ 7.] It is foreseeable the excessive noise can cause damage to a person’s ear, and it is evident that Coreology was aware of this risk of harm because they provided earplugs to their customers. [Widmann Declaration ¶ 9.] Further, it was foreseeable that defendant's noise would disrupt plaintiff's business, because plaintiff specifically complained to Coreology and alerted them to this risk. [Widmann Declaration ¶ 9.]

The court finds that as a matter of law, defendant had a duty to plaintiff. Plaintiff presents evidence that Paragraph 3.1 of the lease created a duty to not cause a nuisance to other tenants and disrupt their use of their property. Plaintiff also presents evidence that pursuant to Manhattan Beach Municipal Code 5.48.160, it is illegal for any commercial property owner to operate any source of noise that is above 85 decibels. Plaintiff also presents that from within plaintiff's Property, noise from Coreology could be heard at over 100 decibels.