Judge: Elaine W. Mandel, Case: 21SMCV00229, Date: 2024-06-12 Tentative Ruling
Case Number: 21SMCV00229 Hearing Date: June 12, 2024 Dept: P
Tentative Ruling
West Idaho, LLC v.
Zhang, Case No. 21SMUD00229
Hearing date June 12,
2024
Cross-defendant
West Idaho’s Motion for Summary Judgment and/or Summary Adjudication as to
Cross-complainant Zhang’s -- UNOPPOSED
Cross-defendant
West Idaho LLC moves for summary judgment as to Zhang’s cross complaint. The
motion is unopposed.
West Idaho sued
Zhang for unlawful detainer. Zhang cross-complained, alleging (1) intentional
infliction of emotional distress, (2) negligent infliction of emotional
distress, (3) forcible detainer and (4) conversion. The cross-complaint alleges
a security guard employed by West Idaho pointed a gun towards her door, and
West Idaho changed the locks on her apartment.
A party is
entitled to bring a motion for summary judgment where there are no triable
issues of fact and moving party is entitled to judgment as a matter of law.
Code Civ. Proc., § 437c(c). Defendant bears the initial burden of establishing
one or more elements of the cause of action cannot be established or that there
is a complete defense to the cause of action. Id. subd. (p)(2). Only
when this initial burden is met does the burden shift to the opposing party to
show a triable issue of material fact. Id.
A party may move
for summary adjudication as to one or more causes of action if the party
contends the cause of action has no merit. Id. subd. (f)(1). A party may
move for summary adjudication as an alternative to summary judgment and shall
proceed in all procedural respects as a motion for summary judgment. Id.
subd. (f)(2).
Even though a motion
for summary judgment is unopposed, the court cannot grant summary judgment
unless defendant meets its initial burden. See Johnson v. Superior Court
(2006) 143 Cal.App.4th 297, 305. The scope of the defendant’s initial burden is
defined by the pleadings. See 580 Folsom Assocs. v. Prometheus Dev. Co.
(1990) 223 Cal.App.3d 1, 18.
Intentional Infliction of Emotional
Distress
“The elements of a prima facie case for the tort of intentional
infliction of emotional distress are: (1) extreme and outrageous conduct by the
defendant with the intention of causing, or reckless disregard of the
probability of causing, emotional distress; (2) the plaintiff’s suffering
severe or extreme emotional distress; and (3) actual and proximate causation of
the emotional distress by the defendant’s outrageous conduct. Conduct to be
outrageous must be so extreme as to exceed all bounds of that usually tolerated
in a civilized community.” Wilson v. Hynek (2012) 207 Cal.App.4th
999, 1009, citation and ellipses omitted.
West Idaho argues Zhang cannot establish the conduct was
“outrageous.” Deciding
“whether conduct is ‘outrageous’ is usually a question of fact.” So v. Shin
(2013) 212 Cal.App.4th 652, 672, as modified on denial of reh'g (Jan. 28,
2013). A defendant’s conduct is considered to be extreme and outrageous if
“it is so extreme as to exceed all bounds of that usually tolerated in a
civilized community.” Crouch v. Trinity Christian Center of Santa Ana, Inc.
(2019) 39 Cal.App.5th 995, 1007; Hughes v. Pair (2009) 46 Cal.4th 1035,
1051.
Defendants argue
the video footage is undisputed evidence that the security guard’s conduct was
not extreme or outrageous. Video of the incident shows the guard was holding a
phone, not a gun (UMF No. 5). The guard Mohseni states when he was at the premises
on March 5, 2021, he did not have a gun in his possession. Mohseni Decl. ¶5.
Defendant meets the initial burden of showing there was no extreme or
outrageous conduct; the burden shifts to plaintiff to show a triable issue of
material fact. As no opposition has been filed, Zhang has not established a
question of material fact as to any conduct that was extreme or outrageous.
Negligent Infliction of Emotional Distress
The negligent causing of emotional distress is not an independent
tort, but the tort of negligence. The traditional elements of duty, breach of
duty, causation, and damages apply. Marlene F. v. Affiliated Psychiatric
Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588-589. The emotional distress
suffered by the plaintiff must be so severe and enduring that no reasonable
person could be expected to endure it. Bogard v. Employers Causalty Co.
(1985) 164 Cal.App.3d 602, 617-618.
A landlord owes a tenant a duty of reasonable care in providing
and maintaining the rented premises in a safe condition. Civ. Code §1714(a); Peterson
v. Superior Court (1995) 10 Cal.4th 1185, 1189. This means a landlord in
caring for the property, must act toward the tenant as a reasonable person
under all of the circumstances. Mora v. Baker Commodities, Inc. (1989)
210 Cal.App.3d 771, 779.
West Idaho argues Zhang cannot establish that West Idaho breached
any duty. West Idaho presents evidence that Mohseni went to Zhang’s apartment
to investigate a noise complaint. UMF No. 2. Video evidence demonstrates
Mohseni’s hand was holding a phone, not a gun. UMF No. 5. Mohseni states
that he did not have a gun in possession during the incident. Mohseni Decl. ¶5.
Mohseni acted
reasonably in investigating the noise complaint by appearing in-person. Moving
party meets its initial burden regarding the NIED claim. No opposition has been
filed; Zhang has not raised a question of material fact as to the NIED claim.
Forcible Detainer
A person is guilty
of a forcible detainer who either: “(1) By force, or by menaces and threats of
violence, unlawfully holds and keeps the possession of any real property,
whether the same was acquired peaceably or otherwise. (2) Who, in the
night-time, or during the absence of the occupant of any lands, unlawfully
enters upon real property, and who, after demand made for the surrender
thereof, for the period of five days, refuses to surrender the same to such
former occupant.” Cal. Code Civ. Proc. §1160
Zhang alleges West
Idaho’s changing of the locks on the apartment and refusing to allow her to
retrieve her possessions make it guilty of forcible detainer.
West Idaho argues
the forcible detainer claim fails because Zhang voluntarily vacated the premises
before the locks were changed. It presents evidence of her voluntarily vacating
prior to West Idaho changing the locks. UMF No. 10. Zhang returned her key to
West Idaho’s leasing office, and all of her belongings were vacated prior to
West Idaho changing the Premises’ locks. UMF No. 11.
Section 1160 does
not apply unless the defendant who entered the property, “after demand made for
the surrender thereof, for the period of five days, refuses to surrender the
same to such former occupant.” West Idaho presents evidence that Zhang returned
her key to its leasing office, and all her belongings were vacated before it
changed the locks. Zhang was no longer occupying the apartment, and West Idaho
did not unlawfully enter the property. Defendant meets its initial burden. As
no opposition has been filed, Zhang has not raised a question of material fact as
to forcible detainer.
Conversion
Zhang alleges West
Idaho’s changing of the locks on the apartment and refusing to allow her to
obtain her property constitute a wrongful act or disposition of property rights
and makes it liable for conversion.
The elements for
conversion are: “(1) the plaintiff owned or had the right to possess the
personal property; (2) the defendant disposed of the property in a manner
inconsistent with the plaintiff’s property rights; and (3) resulting damages.” Berry
v. Frazier (2023) 90 Cal.App.5th 1258, 1271. “It is not necessary that
there be a manual taking of the property; it is only necessary to show an
assumption of control or ownership over the property, or that the alleged
converter has applied the property to his own use.” Oakdale Village Group v.
Fong (1996) 43 Cal.App.4th 539, 544, as modified on denial of reh'g
(Apr. 10, 1996).
West Idaho argues Zhang
has not shown ownership or right to possession at the time of the alleged
conversion, as per the above analysis. West Idaho meets its initial burden;
Zhang has not shown any material facts in dispute.
GRANTED.