Judge: Gail Killefer, Case: 20STCV38707, Date: 2022-08-05 Tentative Ruling
Case Number: 20STCV38707 Hearing Date: August 5, 2022 Dept: 37
HEARING DATE: August 5, 2022
CASE NUMBER: 20STCV38707
CASE NAME: Jeremy Rosenberg, et al. v.
Autumn Lorenz, et al.
MOVING PARTIES: Cross-Defendants, Jeremy Rosenberg
and Joanna Cohen
OPPOSING PARTY: Cross-Complainant, Autumn Lorenz;
Defendants Pres.Now, Inc., Bob Herrera,
Nina Plotner
TRIAL DATE: September 20, 2022
PROOF OF SERVICE: OK
MOTION: Motion for Summary Judgment as to
Third Amended Cross-Complaint; Motion for Summary Judgment as to 26th
Affirmative Defense
OPPOSITION: July 19-21, 2022
REPLY: July 21-25,
2022
TENTATIVE: Cross-Defendants’
motion is denied. Cross-Defendants are to give notice.
Background
This action arises out of Plaintiffs, Joanna Cohen (“Cohen”)
and Jeremy Rosenberg’s (“Rosenberg”) lease of real property located at 7601
Midfield Avenue, Los Angeles, California (the “Midfield Property”). Plaintiffs allege that Defendant, Autumn
Lorenz (“Lorenz”) is the owner of the Midfield Property, Defendant Nina Plotner
(“Plotner”) is its manager, and Defendant Bob Herrera (“Herrera”) is a real
estate broker for the Midfield Property through his firm, Defendant Pres. Now,
Inc. dba Professional Real Estate Services (“Management Firm”).
Plaintiffs allege that each of them qualifies as having a
disability under the Fair Employment and Housing Act. According to Plaintiffs,
they began a romantic relationship on or about May 30, 2017 and thereafter
decided to adopt a mini pig as an emotional support animal. On or about
September 12, 2019, Plaintiffs signed a lease with Lorenz for the Midfield
Property, which allegedly included a Pet Addendum permitting Plaintiffs to keep
their mini pig for an additional security deposit. After Plaintiffs moved into
the Midfield Property, Plaintiffs allege that they repeatedly received improper
demands regarding their mini pig and to vacate the property, despite the lease
and pet addendum allegedly permitting the mini pig. Plaintiffs further allege
that they provided documentation in response to these demands that their mini
pig was an emotional support animal which posed no health and safety risk but
that despite this, Defendants continued to unreasonably withhold consent for
them to keep their mini pig. Finally, Plaintiffs allege that Defendants posted
a three-day Notice to Perform Conditions and Covenants or Quit (the “Notice”)
on December 8, 2019, but that the Notice was wrongful as it failed to make any
specific demands about covenants to fulfill and was based on fabricated
evidence about Plaintiffs’ wrongdoing.
Plaintiffs’ Complaint alleges the following causes of action:
(1) housing discrimination (Government Code § 12955), (2) Unruh Civil Rights
Act (Civil Code §§ 51, 52), (3) Bane Act (Civil Code § 52.1), (4) retaliation
(Government Code § 12855.7), (5) conspiracy, (6) breach of implied covenant of
quiet enjoyment against Lorenz, (7) breach of contract against Lorenz, (8)
breach of implied covenant of good faith and fair dealing against Lorenz, (9)
intentional interference with economic relations against Plotner, Herrera and
Management Firm, (10) intentional infliction of emotional distress.
On March 26, 2021, Plaintiffs filed their First Amended
Complaint. (“FAC”) The FAC removes the third and fifth causes of action. On
June 4, 2021, Plaintiffs filed their operative Second Amended Complaint
(“SAC”), adding an eleventh cause of action for fraud against Lorenz.
On July 2, 2021, Plotner, Herrera, and Management Firm
(“Management Defendants”) filed their Answer to the SAC, including a 26th
Affirmative Defense under the Agent Immunity Rule. Management Defendants allege
immunity from liability, contending they were acting as property managers on
behalf of and under the authorization of Lorenz.
On April 22, 2021, Lorenz filed a Cross-Complaint against
Rosenberg and Cohen (“Cross-Defendants”), alleging that their actions in
keeping a mini pig at the Midfield Property constituted a breach of the lease.
Lorenz’s cross-complaint alleges the following causes of action: (1) Breach of
contract, (2) negligence, (3) fraud, (4) negligent infliction of emotional
distress and (5) intentional infliction of emotional distress.
On December 7, 2021, Lorenz filed the Second Amended
Cross-Complaint. (“SACC”) The SACC alleged only the first four causes of
action. On March 30, 2022, Lorenz filed
the operative Third Amended Cross-Complaint (“TACC”) again alleging the first
four causes of action. On May 26, 2022, the court sustained Cross-Defendants’
demurrer without leave to amend as to the third cause of action of the TACC.
Cross-Defendants now move for summary judgment against
Lorenz on all remaining causes of action. Lorenz opposes the motion.
Cross-Defendants also move for summary judgment as to the
26th Affirmative Defense alleged by Management Defendants. Management
Defendants oppose the motion.
As the motions relate to the same general set of facts, the
court considers both motions together.
Cross-Defendants
now move for summary judgment or, in the alternative, summary adjudication on
all of the following issues:
1. Lorenz’s
first cause of action for breach of contract is without merit because a breach
of a contract and damages do not exist;
2. Lorenz’s
second cause of action for negligence is further without merit because it is
barred by the economic loss doctrine;
3. Lorenz’s
third cause of action is further without merit because Lorenz cannot establish any
concealment occurred;
4. Lorenz’s
fourth cause of action for negligent infliction of emotional distress is also
without merit because Cross-Defendants did not owe Lorenz a duty and did not
proximately cause her damages; and
5. Management Defendants’ 26th Affirmative
Defense of Agent Immunity Rule is without merit as it is not supported by
facts.
Cross-Defendants’
Notice of Motion is deficient in that it moves for adjudication as to the third
cause of action of the TACC, which the court has already sustained on demurrer.
As such, the court disregards Cross-Defendants’ arguments as surplusage.
Request for Judicial Notice
Cross-Defendants
request untimely and late judicial notice of the following in reply in support
of their motion:
Request
no. 9 is rejected outright as no exhibit or document is introduced for judicial
notice, rather Cross-Defendants seek to take judicial notice of a contention,
outside of proper methods.
Lorenz opposes the requests and contends they are
unauthenticated, partial portions of any relevant documents. (RJN Opp., 2.)
The court agrees. Cross-Defendants have failed to show how they
have complied with Cal. Evid. Code § 452 and 453, have failed to authenticate the
documents or explain them to be proper matters for judicial notice, and have
failed to provide justifications altogether. Aside from these failures,
Cross-Defendants have failed to attach the documents to the request altogether,
instead asking the court to conduct a fishing expedition to find the documents
they are referencing. The court refuses to waste further judicial resources on
such matters. The request is therefore denied.
Cross-Defendants’
Objections
In defiance of Cal. Rules of Court Rule 3.1354, Cross-Defendants again have submitted evidentiary objections without following one of the two allowed formats—namely, Cross-Defendants fail to number the objections and as such, fail to accurately refer to each objection individually. As such, the court is tempted to overrule the objections entirely. Nonetheless, the court rules as follows:
Objections to the Declaration of Autumn Lorenz
Overruled: 1-8, 10-12, 14-18
Sustained in part: 13, 19
Sustained: 9
Objections to the Declaration of Bob Herrera
Sustained in part: 6
Overruled: All remaining objections.
Management Defendants’ Objections
In defiance of Cal. Rules of Court Rule 3.1354, Management Defendants also have submitted evidentiary objections without following one of the two allowed formats—namely, Management Defendants fail to number the objections and fail to quote or set forth the objectionable statement or material. Therefore, they fail to accurately refer to each objection individually. As such, the court is tempted to overrule the objections entirely. Nonetheless, the court rules as follows:
Objection
1-4: overruled.
Objection 5: sustained.
Discussion
I. Legal Authority
“The purpose of the law of summary judgment 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.) Pursuant to CCP § 437c(a):
A party may
move for summary judgment in any action or proceeding if it is contended that
the action has no merit or that there is no defense to the action or
proceeding. The motion may be made at any time after 60 days have elapsed
since the general appearance in the action or proceeding of each party against
whom the motion is directed or at any earlier time after the general appearance
that the court, with or without notice and upon good cause shown, may
direct…. The motion shall be heard no later than 30 days before the date
of trial, unless the court for good cause orders otherwise. The filing of
the motion shall not extend the time within which a party must otherwise file a
responsive pleading.
A motion for summary judgment may 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.”
(CCP § 437c(c).)
“The motion shall be supported by affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of which
judicial notice shall or may be taken. The supporting papers shall
include a separate statement setting forth plainly and concisely all material
facts that the moving party contends are undisputed. Each of the material
facts stated shall be followed by a reference to the supporting evidence.
The failure to comply with this requirement of a separate statement may in the
court’s discretion constitute a sufficient ground for denial of the
motion.” (CCP § 437c(b)(1); see also Cal. Rules of Court, rule
3.1350(c)(2) & (d).)
“A party may move for
summary adjudication as to one or more causes of action within an action, one
or more affirmative defenses, one or more claims for damages, or one or more
issues of duty, if the party contends that the cause of action has no merit, that
there is no affirmative defense to the cause of action, that there is no merit
to an affirmative defense as to any cause of action, that there is no merit to
a claim for damages, as specified in Section 3294 of the Civil Code, or that
one or more defendants either owed or did not owe a duty to the plaintiff or
plaintiffs.”
(CCP § 437c(f)(1).)
“Notwithstanding subdivision
(f), a party may move for summary adjudication of a legal issue or a claim for
damages other than punitive damages that does not completely dispose of a cause
of action, affirmative defense, or issue of duty pursuant to this subdivision.”
(CCP § 437c(t).)
In analyzing motions for summary judgment, courts must
apply a three-step analysis: “(1) identify the issues framed by the pleadings;
(2) determine whether the moving party has negated the opponent's claims; and
(3) determine whether the opposition has demonstrated the existence of a
triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005)
135 Cal.App.4th 289, 294 (Hinesley).) Pursuant to CCP § 437c(p)(2):
A defendant
or cross-defendant 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, even if not separately pleaded, cannot be established, or that there is
a complete defense to the cause of action. Once the defendant or
cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant
to show that a triable issue of one or more material facts exists as to the
cause of action or a defense thereto. The plaintiff or cross-complainant
shall not rely upon the allegations or denials of its pleadings to show that a
triable issue of material fact exists but, instead, shall set forth the
specific facts showing that a triable issue of material fact exists as to the
cause of action or a defense thereto.
(CCP § 437c(p)(2).) The court must “view the evidence
in the light most favorable to the opposing party and accept all inferences
reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at
p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389
[Courts “liberally construe the evidence in support of the party opposing
summary judgment and resolve doubts concerning the evidence in favor of that
party.”].) A motion for summary judgment must be denied where the moving
party’s evidence does not prove all material facts, even in the absence of any
opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where
the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222
Cal.App.3d 379, 384, 387).
II.
Factual
Summary
The TACC incorporates
by exhibit the Lease Agreement signed between Cross-Defendants and Lorenz,
which underpins Lorenz’s claims against Cross-Defendants. The Lease Agreement
states in relevant part:
“1B. The Premises are
for the sole use as a personal residence by the following named person(s) only:
Joanna Cohen, Jeremy Rosenberg.
...
11. MAINTENANCE
USE AND REPORTING:
A. Tenant shall
properly use, operate and safeguard Premises, including if applicable, any
landscaping, furniture, furnishings and appliances, and all mechanical,
electrical, gas and plumbing fixtures, carbon monoxide detector(s) and smoke
alarms, and keep them and the Premises clean, sanitary and well ventilated.
Tenant shall be responsible for checking and maintaining all carbon monoxide
detectors and any additional phone lines beyond the one line and jack that
Landlord shall provide and maintain. Tenant shall replace any burned out or
malfunctioning light bulbs. Tenant shall immediately notify Landlord, in
writing, of any problem, malfunction or damage with any item including carbon
monoxide detector(s) and smoke alarms on the property. Tenant shall be charged
for all repairs or replacements caused by Tenant, pets, guests or licensees of
Tenant, excluding ordinary wear and tear. Tenant shall be charged for all
damage to Premises as a result of failure to report a problem in a timely
manner. Tenant shall be charged for repair _of drain blockages or stoppages,
unless caused by defective plumbing parts or tree roots invading sewer lines.
B. [] Landlord [X] Tenant shall water the garden,
landscaping, trees and shrubs, except: -
C. [X] Landlord []Tenant
shall maintain the garden, landscaping, trees and shrubs, except:
...
12. NEIGHBORHOOD CONDITIONS: Tenant is
advised to satisfy himself or herself as to neighborhood or area conditions,
including, but not limited to, schools, proximity and adequacy of law
enforcement, crime statistics, proximity of registered felons or offenders,
fire protection, other governmental services, availability, adequacy and cost
of any wired, wireless internet connections or other telecommunications or
other technology services and installations, proximity to commercial,
industrial or agricultural activities, existing and proposed transportation,
construction and development that may affect noise, view, or traffic, airport
noise, noise or odor from any source, wild and domestic animals, other
nuisances, hazards, or circumstances, cemeteries, facilities and condition of
common areas, conditions and influences of significance to certain cultures
and/or religions, and personal needs, requirements and preferences of Tenant
13. PETS: Unless otherwise provided in
California Civil Code §54.2, or other law, no animal or pet shall be kept on or
about the Premises without Landlord's prior written consent, [X] except as
agreed to in the attached Pet Addendum (C.A.R. Form PET).
...
17. ALTERATIONS; REPAIRS: Unless otherwise
specified by law or paragraph 25C, without Landlord's prior written consent,
(I) Tenant shall not make any repairs, alterations or improvements in or about
the Premises induding: painting, wallpapering, adding or changing locks,
installing antenna or satellite dish(es), placing signs, displays or exhibits,
or using screws, fastening devices, large nails or adhesive materials; (ii)
Landlord shall not be responsible for the costs of alterations or repairs made
by Tenant; (iii) Tenant shall not deduct from Rent the costs of any repairs,
alterations or improvements; and (iv) any deduction made by Tenant shall be
considered unpaid Rent.
...
19. ENTRY:
A. Tenant shall make Premises available to
Landlord or Landlord's representative for the purpose of entering to make
necessary or agreed repairs (including, but not limited to, installing,
repairing, testing, and maintaining smoke detectors and carbon monoxide
devices, and bracing, anchoring or strapping water heaters, or repairing
dilapidation relating to the presence of mold); providing decorations, alterations,
or improvements, or supplying necessary or agreed services; or to show Premises
to prospective or actual purchasers, tenants, mortgagees, lenders, appraisers,
contractors and others (collectively "Interested Persons"). Tenant
agrees that Landlord, Broker and Interested Persons may take photos of the
Premises.
B. Landlord and Tenant agree that 24-hour
written notice shall be reasonable and sufficient notice, except as follows:
(1) 48-hour written notice is required to conduct an inspection of the Premises
prior to the Tenant moving out, unless the Tenant waives the right to such
notice. (2) If Landlord has in writing informed Tenant that the Premises are
for sale and that Tenant will be notified orally to show the premises (C.A.R.
Form NSE), then, for the next 120 days following the delivery of the NSE,
notice may be given orally to show the Premises to actual or prospective
purchasers. (3) No written notice is required if Landlord and Tenant orally
agree to an entry for agreed services or repairs if the date and time of entry
are within one week of the oral agreement. (4) No notice is required: (i) to
enter in case of an emergency; (ii) if the Tenant is present and consents at
the time of entry; or (iii) if the Tenant has abandoned or surrendered the Premises.
C. D (If checked) Tenant authorizes the use
of a keysafe/lockbox to allow entry into the Premises and agrees to sign a
keysafe/lockbox addendum (C.A.R. Form KLA).
...
22. ASSIGNMENT; SUBLETTING: A. Tenant shall
not sublet all or any part of Premises, or parking or storage spaces, or assign
or transfer this Agreement or any interest in it, without Landlord's prior
written consent. Unless such consent is obtained, any assignment, transfer or
subletting of Premises or this Agreement or tenancy, by voluntary act of
Tenant, operation of law or otherwise, shall, at the option of Landlord,
terminate this Agreement. Any proposed assignee, transferee or sublessee shall
submit to Landlord an application and credit information for Landlord's
approval and, if approved, sign a separate written agreement with Landlord and
Tenant. Landlord's consent to any one assignment, transfer or sublease, shall
not be construed as consent to any subsequent assignment, transfer or sublease
and does not release Tenant of Tenant's obligations under this Agreement. B.
This prohibition also applies ( D does not apply) to short term, vacation, and
transient rentals such as, but not limited to, those arranged through AirBnB,
VRB.
...
25. TENANT’S OBLIGATIONS UPON VACATING
PREMISES:
A. Upon termination of this Agreement,
Tenant shall: (i) give Landlord all copies of all keys and any opening devices
to Premises, including any common areas; (ii) vacate and surrender Premises to
Landlord, empty of all persons; and personal property belonging to Tenant (iii)
vacate any/all parking and/or storage space; (iv) clean and deliver Premises,
as specified in paragraph C below, to Landlord in the same condition as
referenced in paragraph 10; (v) remove all debris; (vi) give written notice to
Landlord of Tenant's forwarding address; and (vii) _________________________ .
B. All alterations/improvements made by or
caused to be made by Tenant, with or without Landlord's consent, become the
property of Landlord upon termination. Landlord may charge Tenant for
restoration of the Premises to the condition it was in prior to any
alterations/improvements.
C. Right to Pre-Move-Out Inspection and
Repairs: (i) After giving or receiving notice of termination of a tenancy
(C.A.R. Form NTT), or before the expiration of this Agreement, Tenant has the
right to request that an inspection of the Premises take place prior to
termination of the lease or rental (CAR. Form NRI). If Tenant requests such an
inspection, Tenant shall be given an opportunity to remedy identified
deficiencies prior to termination, consistent with the terms of this Agreement.
(ii) Any repairs or alterations made to the Premises as a result of this
inspection (collectively, "Repairs") shall be made at Tenant's
expense. Repairs may be performed by Tenant or through others, who have
adequate insurance and licenses and are approved by Landlord. The work shall
comply with applicable law, including governmental permit, inspection and
approval requirements. Repairs shall be performed in a good, skillful manner
appearance with or materials cosmetic of items quality following and all
appearance Repairs may not comparable be to possible. existing (iii) Tenant
materials. shall: It is (a) obtain understood receipts that for exact Repairs
restoration performedof by others; (b) prepare a written statement indicating
the Repairs performed by Tenant and the date of such Repairs; and (c) provide
copies of receipts and statements to Landlord prior to termination. Paragraph
25C does not apply when the tenancy is terminated pursuant to California Code
of Civil Procedure § 1161 (2), (3), or (4 ).
...
28. DAMAGE TO PREMISES:
If, by no fault of
Tenant, Premises are totally or partially damaged or destroyed by fire,
earthquake, accident or other casualty that render Premises totally or
partially uninhabitable, either Landlord or Tenant may terminate this Agreement
by giving the other written notice. Rent shall be abated as of the date
Premises become totally or partially uninhabitable. The abated amount shall be
the current monthly Rent prorated on a 30-day period. If the Agreement is not
terminated, Landlord shall promptly repair the damage, and Rent shall be
reduced based on the extent to which the damage interferes with Tenant’s
reasonable use of Premises. If damage occurs as a result of an act of Tenant or
Tenant’s guests, only Landlord shall have the right of termination, and no
reduction in Rent shall be made.
...
34. REPRESENTATION
A. TENANT REPRESENTATION; OBLIGATIONS
REGARDING OCCUPANTS; CREDIT: Tenant warrants that all statements in Tenant's
rental application are accurate. Landlord requires all occupants 18 years of
age or older and all emancipated minors to complete a lease rental application.
Tenant acknowledges this requirement and agrees to notify Landlord when any
occupant of the Premises reaches the age of 18 or becomes an emancipated minor.
Tenant authorizes Landlord and Broker(s) to obtain Tenant's credit report
periodically during the tenancy in connection with the modification or
enforcement of this Agreement. Landlord may cancel this Agreement: (i) before
occupancy begins; upon disapproval of the credit report(s), or upon discovering
that information in Tenant's application is false; (ii) After commencement
date, upon disapproval of an updated credit report or upon discovering that
information in Tenant's application is no longer true. A negative credit report
reflecting on Tenant's record may be submitted to a credit reporting agency if
Tenant fails to fulfill the terms of payment and other obligations under this
Agreement.
...
40. AGENCY:
A. CONFIRMATION: The following agency
relationship(s) are hereby confirmed for this transaction:
Listing Agent: (Print
firm name) PRES.NOW. Inc dba as Professional Real Estate Services
is the agent of
(check one):[] the Landlord exclusively; or [X] both the Landlord and Tenant.
Leasing Agent: (Print
firm name) PRES.NOW. Inc dba as Professional
Real Estate Services
(if not same as
Listing Agent) is the _agent of ( check one): [] the Tenant exclusively; or [] the
Landlord exclusively; or [X] both the Tenant and Landlord.
...
PET
ADDENDUM
PET ADDENDUM AND
AGREEMENT:
Notwithstanding any
other term in the Agreement, Landlord herewith grants permission for Tenant to
have the following
pet(s) only on the
Premises:1 pet subject to the following
terms and conditions:
1. Tenant is not allowed to have any other
pets on the Premises other than those designated above, including any pets that
are "just visiting."
2. Tenant represents to Landlord that the
pet(s) is housebroken, has no vicious tendencies or history of threatening or
causing harm to persons by biting, scratching, chewing or otherwise.
3. Tenant agrees that the pet(s) will be
properly licensed and vaccinated pursuant to applicable laws and Tenant further
agrees to provide proof of licensing and vaccination upon Landlord's or agent's
request.
4. Tenant is responsible for compliance
with all local laws and regulations relating to the pets.
5. Tenant agrees to clean up after their
pet(s) and properly dispose of all waste.
6. Tenant agrees to keep Premises free
from pet odor and stain.
7. Tenant agrees to take action to avoid
pest infestations (fleas, etc.) in the Premises.
8. If the Premises is part of a
residential complex, pets are not allowed in pool areas, clubhouses, business
office, laundry rooms, business center or fitness centers. Pets may not be
bathed or groomed in the laundry room sinks, pools, or pool area.
9. Permission to have a pet may be revoked
at any time with three days notice for cause, or for month to month tenancies
with thirty days notice without cause. Tenant's failure to remove the pet(s)
after permission has been revoked shall be deemed a breach of the lease or
rental agreement.
10. Tenant is responsible for and will be
charged for any damage to the Premises caused by their pet(s), whether listed
above or "just visiting." Damages include, but are not limited to,
damages to floors, carpets, drapes, screens, landscaping, fencing, including
odors due to the presence of pets.
11. Tenant agrees to indemnify and hold
Landlord and Landlord's agents harmless from all liability, claims, demands,
damages and costs for injuries to persons or property in connection with
Tenant's pet(s).”
(TACC, Exh. A.)
III.
Analysis
a. First Cause of Action: Breach of
Contract
A cause of action for¿breach of contract consists of the
following elements: (1) the existence of a contract; (2) the plaintiff’s
performance or excuse for nonperformance; (3) the defendant’s breach; and (4)
the resulting damages to the plaintiff.¿ (Oasis West Realty, LLC v. Goldman¿(2011)
51 Cal.4th 811, 821.)¿“The essence of a contract is the meeting of minds on the
essential features of the agreement.” (Krasley¿v. Superior Court¿(1980)
101 Cal.App.3d 425, 431.) A contract “is unenforceable if the parties fail to
agree on a material term or if a material term is not reasonably certain.” (Lindsay
v. Lewandowski¿(2006) 139 Cal.App.4th 1618, 1623.)¿
“A party may rescind a contract if his or her consent was
given by mistake.” (Donovan v.¿RRL¿Corp.¿(2001) 26 Cal.4th 261, 278.) “A
factual mistake by one party to a contract, or unilateral mistake, affords a
ground for rescission in some circumstances.” (Id.) Additionally, CCP § 1689
provides the following grounds for a party to rescind a contract:
(a)¿A
contract may be rescinded if all the parties thereto consent.
(b)¿A party
to a contract may rescind the contract in the following cases:
(1)¿If the
consent of the party rescinding, or of any party jointly contracting with him,
was given by mistake, or obtained through duress, menace, fraud, or undue
influence, exercised by or with the connivance of the party as to whom he
rescinds, or of any other party to the contract jointly interested with such
party.
(2)¿If the
consideration for the obligation of the rescinding party fails, in whole or in
part, through the fault of the party as to whom he rescinds.
(3)¿If the
consideration for the obligation of the rescinding party becomes entirely void
from any cause.
(4)¿If the
consideration for the obligation of the rescinding party, before it is rendered
to him, fails in a material respect from any cause.
(5)¿If the
contract is unlawful for causes which do not appear in its terms or conditions,
and the parties are not equally at fault.
(6)¿If the
public interest will be prejudiced by permitting the contract to stand.
(7)¿Under
the circumstances provided for in Sections 39, 1533, 1566, 1785, 1789, 1930 and
2314 of this code, Section 2470 of the Corporations Code, Sections 331, 338,
359, 447, 1904 and 2030 of the Insurance Code or any other statute providing
for rescission.
Cross-Defendants
contend the first cause of action is without merit as there are no triable
issues of material fact regarding the breach element of Lorenz’s claims.
(Motion, 3.)
Cross-Defendants
first contend that the TACC’s assertion of a duty to “maintain the premises” is
ambiguous, as Lorenz had an obligation to maintain the garden and landscaping,
and the Agreement provided for “wear and tear.” (Motion, 4.) Cross-Defendants
assert no evidence proffered by Lorenz “evidence a breach,” as they attest to watering
the lawn as required, and completed any repairs requested. Cross-Defendants
also point out that they received their full security deposit, were “never
informed” “of estimated future repairs,” were never charged for any future
repairs, and were never sent an itemized statement of costs for any repairs
which were made. (Id.) Cross-Defendants simply point to these as
“undisputed” facts, with no supporting authority or explanations as to their
claims.
Cross-Defendants also
contend that Lorenz “was aware of a potential roommate prior” to the execution
of the Lease, and Cross-Defendants relied on Lorenz’s “pre-approval” in moving
forward with allowing a new roommate to enter the residence. (Motion, 5.)
Cross-Defendants also contend that Lorenz’s disapproval of any roommate “was
about the pig,” and contend that Lorenz did not follow the Lease procedures for
a proposed roommate. (Id.) They allege the denial of the potential
roommate “was unreasonable.” Again, Cross-Defendants make conclusory
allegations regarding what is “undisputed,” without supporting authorities or
explanations.
Cross-Defendants
further contend that the “purported alterations or modifications,” including
security cameras and gate locks did not cause any damage to Lorenz and were not
a breach of their duties and obligations. (Motion, 6.) Cross-Defendants also
contend that Lorenz’s request to enter the residence was actually “inspecting
the premises for damages” which Cross-Defendants contend “is an improper
purpose for a landlord to enter a lease property.” (Motion, 6-7.) Again,
Cross-Defendants make these conclusory allegations without supporting
authority, in spite of Paragraph 19(A) of the Lease Agreement stating
explicitly that entry into the premises could be requested for “supplying
necessary or agreed services.” (TACC, Exh. A, ¶19(A).) Cross-Defendants also
contend that they did not breach the Agreement by refusing an inspection of the
leased property nearly six months prior to their move-out date. (Motion, 7.) Cross-Defendants
also contend they “satisfied” themselves of the neighborhood conditions, in a
manner that does not constitute a breach of the Agreement, as required by ¶ 12
of the Agreement. (Id.)
Cross-Defendants also contend that “an
emotional support animal is not a pet,” citing 2 Cal. Code Regs. § 12005(d)(2).
(Motion, 8.) Cross-Defendants contend that any visiting pet was not a breach of
the Lease Agreement, which provided for one pet on the premises. (Id.)
Cross-Defendants also contend “[a]ny pet, visiting or owned, did not result in
damage to the property that was not repaired by Cross-Defendants.” (Id.)
Cross-Defendants also contend that they did not fail to notify Lorenz of
damages to the residence, and as such, did not breach their duties. (Motion,
8-9.) Cross-Defendants also contend that they cleaned up after their pet and/or
emotional support animal “in good faith.” (Motion, 9.) Cross-Defendants also
contend that Lorenz has failed to produce any evidence showing damage caused by
their failure to properly clean up. (Id.) Cross-Defendants also contend
that they did not fail to water the garden and landscaping pursuant to their
Lease duties, and as such did not breach their contractual obligations; they
also contend the damage caused to the landscaping was due to prior tenants,
arid weather, and faulty sprinkler systems. (Motion, 9-10.)
Cross-Defendants lastly contend
Lorenz’s claims are barred by waiver, laches, and accord and satisfaction since
she “accepted rent each month of the lease term,” “returned the fully security
deposit,” “never informed them of estimated future damage costs, and never
provided an itemized statement of repair costs.” (Motion, 10.) Cross-Defendants
provide no supporting authorities for these legal conclusions, and merely make
conclusory allegations.
In opposition, Lorenz disputed several
factual claims made by Cross-Defendants. (See generally, MF 1-141.)
Lorenz also contends Cross-Defendants failed to “properly use” or “maintain”
the residence, as evidenced by repairs to the gate, sprinkler bib, landscaping
repairs during the lease, damage done as the “the pig ate off the floors and
pushed on the gate,” “a residual foul odor left after move out,” damages done
as Cross-Defendants “interrupted pest control at the property causing it to be
at risk for infestation,” “[e]xcessive wear and tear from an additional
unapproved tenant,” as well as damages where the animal “chewed on the deck and
left an odor in the premises.” (Opposition, 2-3.) Lorenz details the specific repairs
which needed to be done. (Id.) Lorenz also claims that she never gave permission
or authorized another occupant of the residence, or a subletting of the
residence, and attests that Cross-Defendants were told “she would have to take
this up with the property [management] if that occasion arose.” (Opposition,
3.) Lorenz contends “[i]ncreasing the tenancy by 50% resulted in substantially
more expense as a result of the increase [sic] wear and tear and
additional property management.” (Id.)
Lorenz also counters that the
alterations made to the property were more substantive than Cross-Defendants
claim, which included “screwed board and drilled screws into the fence, added 3
locks to the gate, drilled holes into the house all without prior or post
notification or authority.” (Opposition, 4.) Lorenz contends that a request to
inspect “with more than 24 hours of notice” was rejected by Cross-Defendants. (Id.)
Lorenz also contends Cross-Defendants violated the Agreement, ¶ 12, as they
“allowed their 100 pound pig to roam in the neighborhood without a leash. The
pig escaped the backyard on various occasions getting loose in the
neighborhood.” (Opposition, 5.) Further, Lorenz disputes Cross-Defendants
claims and asserts that Cross-Defendants “had 2 dogs as well as the pig at the
residence.” (Id.)
Lorenz also contends that
Cross-Defendants “never advised her of damage of the property.” (Id.)
When the damage was noted and repaired, Lorenz attests Cross-Defendants “denied
causing damage resorting to threats of litigation.” (Id.)
Further, Lorenz also contends “that
animal feces, dirt and debris was noted at the subject property during their
tenancy. The pig caused pet infestation and dirt in the yard and house. The
carpeting smell [sic] as a result of the pig having been inside.” (Id.)
Lorenz also contends that Cross-Defendants “did not provide necessary access to
the backyard on multiple occasions to cut the grass” for the gardener.
(Opposition, 6.)
Lastly, Lorenz
contends
“the return of the Plaintiffs’ security
was not a waiver of my claims for their responsibility for the damages. Before
moving out the plaintiffs filed a complaint with the Department of Fair
Employment and Housing for discrimination wherein they indicated that they
would file a further complaint for retaliation if the security deposit were not
refunded. This security deposit was not sufficient to pay for the cost of their
damage and the refund was made to avoid administrative action by the DFEH. This
was before I had an opportunity to fully inspect the premises.”
(Id.)
In reply,
Cross-Defendants contend “Lorenz had the opportunity to inspect” the premises,
but “paid the full security deposit by choice as a tactic employed in her DFEH
response to avoid accountability for her discrimination and retaliation against
Plaintiffs.” (Reply, 6.) Cross-Defendants thus contend “Lorenz waived any
claims for damages post-facto the termination of the lease.” (Reply, 7.)
Cross-Defendants cite to Kern Sunset Oil Co. v. Good Roads Oil Co.
(1931) 214 Cal. 435 at 440–441 (“Kern”), to argue that Lorenz waived any
breaches of the contract. (Id.) “The fact that Lorenz returned the full
security deposit to Cross-Defendants with no itemized statement or estimate of
future repair costs should legally operate as a discharge or a complete laches
defense.” (Id.) Cross-Defendants further claim that Lorenz “fails to
explain how the facts differ from controlling authority to raise an issue of
triable fact,” stressing that Cross-Defendants’ rent was accepted in full each
month. (Id.) Cross-Defendants provide no further explanation, however.
as to how the circumstances here are analogous to Kern.
Kern states
in relevant part:
“The acceptance of rent by the landlord
from the tenant, after the breach of a condition of the lease, with full
knowledge of all the facts, is a waiver of the breach and precludes the
landlord from declaring a forfeiture of the lease by reason of said breach.
This is the general rule and is supported by ample authority. (15 Cal. Jur., p.
787; Miller v. Reidy, 85 Cal.App. 757; Inman v. Schecher, 86
Cal.App. 193, 198; Richards v. Silveria, 97 Cal.App. 166, 170.) The rule
is also stated in Ruling Case Law as follows: ‘The most familiar instance of
the waiver of the lease arises from the acceptance of rent by the landlord
after condition broken, and it is a universal rule that if the landlord accepts
rent from his tenant after full notice or knowledge of a breach of a covenant
or condition in his lease for which a forfeiture might have been demanded, this
constitutes a waiver of forfeiture which cannot afterward be asserted for that
particular breach or any other breach which occurred prior to the acceptance of
the rent. In other words, the acceptance by a landlord of the rents, with full
knowledge of a breach in the conditions of the lease, and of all of the circumstances,
is an affirmation by him that the contract of lease is still in force, and he
is thereby estopped from setting up a breach in any of the conditions of the
lease, and demanding a forfeiture thereof.’ (16 R.C.L., p. 1132.)”
(Kern Sunset Oil Co.,
supra, 214 Cal. at 440-441.) Further, Kern is concerned with rights
to drill a portion of land, where lessees were to drill two wells per year and
paid royalties to do so for eight years, where the court further found:
“That plaintiff waived this covenant in
the lease we think there can be no question. The time in which the lessees
agreed to drill and place upon production sixteen wells upon said leased
premises expired on May 1, 1919, at which time, according to the contention of
the plaintiff, the lessees had completed only thirteen wells. The lessees
therefore at this date may have committed a clear breach of the terms of the
lease. Yet after this date, and for almost five years following, the
plaintiff accepted and received the regular monthly payments of royalty from
the leased premises without making any complaint or objection to the default on
the lessees' part. By the receipt of these payments, the plaintiff
clearly and definitely recognized the existence of the lease. ‘A landlord who
thus recognizes a lease as a subsisting, operative contract should not be
permitted to insist upon a past forfeiture, nor be permitted to assert that the
contract is no longer a subsisting lease affording to the tenant all his
contractual rights thereunder. [Citing authorities.]’ Jones v. Maria, 48
Cal. App. 171.” [emphasis added]
(Kern Sunset Oil Co., supra, 214
Cal. at 443-444.)
Here, as explained in Cross-Defendants’
SAC, Lorenz and Management Defendants were proactive in their exercising of
duties pursuant to the Lease Agreement to first inquire about the pig, then
inquire about its status as an emotional support animal, all the while
maintaining a request for Cross-Defendants to terminate their tenancy if these
requests were not honored. (TAC ¶¶66, 104.) Thus, in viewing the evidence in a
light most favorable to the non-moving party, the court finds Cross-Defendants
have failed to meet their burden in showing a sufficient waiver, laches, or
accord and satisfaction defense.
Further, Cross-Defendants contend “Lorenz
provides no substantive responses to show a triable issue as to
Cross-Defendants’ many showing of no damages.” (Reply, 7.) The court disagrees.
The parties dispute the several alleged breaches of the Lease Agreement, the
damages caused as a result of these alleged breaches, and provide the court
with competing circumstances. Whether the animal damaged the interior of the
residence and left a residual odor, whether Cross-Defendants maintained several
other animals at the residence in violation of the lease provisions, and
whether the Cross-Defendants maintained a roommate at the residence, as well as
several other scenarios, are all factual disputes which Cross-Defendants have
not shown to be without merit. Thus, in viewing the evidence in a light most
favorable to the nonmoving party, the court finds several triable issues of
material fact exist regarding the first cause of action, further shown by the
numerous disputed factual allegations. (MF 1-141.)
For these reasons, Cross-Defendants’ motion is denied with
respect to the first cause of action.
b. Second Cause of Action: Negligence
Negligence consists of the following elements: (1) the
defendant owed the plaintiff a duty of care, (2) the defendant breached that
duty, and (3) the breach proximately caused the plaintiff’s damages or
injuries.¿ (Lueras¿v. BAS Home Loan Servicing, LP¿(2013) 221 Cal.App.4th
49, 62 (Lueras).)¿ “The existence of a duty of care owed by a defendant
to a plaintiff is a prerequisite to establishing a claim for negligence.”¿ (Nymark¿v.
Heart Fed.¿Savs. & Loan¿Ass’n¿(1991) 231 Cal.App.3d 1089, 1095.)¿
“Whether a duty of care exists is a question of law to be determined on a
case-by-case basis.”¿ (Lueras, 221 Cal.App.4th at p. 62.)¿
Here,
Cross-Defendants contend the second cause of action for negligence is without
merit as it seeks tort recovery “for a merely duplicated breach of contract
claim.” (Motion, 11.) Cross-Defendants cite Erlich v. Menezes (1999) 21
Cal.4th 543 (“Erlich”) and Butler-Rupp v. Lourdeaux (2005) 134
Cal.App.4th 1220, 1228 (Butler-Rupp) to contend that unless the breach
has caused bodily harm, tort actions for breach of contract actions should not
be upheld. (Motion, 12.) Cross-Defendants then contend: (1) that the only duty
alleged arises of out the Lease Agreement; (2) that “no direct physical injury
to [Lorenz] is shown by the record;” (3) that “[n]othing in the record shows
that Lorenz experienced serious emotional stress during Cross-Defendants’
tenancy;” (4) that “Lorenz did not suffer any recoverable damages;” (5) that
the economic loss rule bars Lorenz’s claims; (6) that Cross-Defendants’ conduct
was not the proximate cause of Lorenz’s miscarriage; and (7) Lorenz’s claims
are barred by public policy, waiver, and a failure to mitigate damages.
(Motion, 11-16.)
In opposition, Lorenz
indicates she suffered “[a]nxiety, stress, anguish, nervousness, sleeplessness,
headaches, migraines, pain and tightness to the head, neck and back, stomach
pain, loss of appetite, difficulty focusing, chest tightness, depression, lack of
focus and being disconnected from engagements and work” and attests she “suffered
a miscarriage due to physical and emotional pain the tenants continuously
inflicted on my unborn child and me during my pregnancy. I have been diagnosed
with depression and anxiety disorders.” (Lorenz Decl. 5:17-24.) Lorenz also
attests her treating physician, Dr. Conrad, indicated “the stress I [e]ndured
was probably a contributing factor in my pregnancy loss and noting stress which
I was under in 2020.” (Lorenz Decl. 6:7-9, Exh. D.) Here, Lorenz also points to
Cross-Defendants’ unsuccessful demurrer of the second cause of action as
evincing of the negligence claim having merit. (Opposition, 7.) As the relevant
inquiry at the demurrer stage differs greatly, the court disregards this
argument.
Lorenz then attests
Cross-Defendants owed a duty “to maintain and repair the Subject Property and
to surrender possession in the same condition it was in at the beginning of the
tenancy.” (Id.) Lorenz contends the breaching of this duty caused her
physical injury, as described above. (Id.) Lorenz attests “the stress
caused by the [Cross-Defendants] caused a hormone leading to the miscarriage.”
(Opposition, 8.)
In Reply,
Cross-Defendants contend “the alleged contractual breaches are
indistinguishable from any breach of a legal duty concerning maintenance of the
property,” and as such, “no triable issue exists as to damages.” (Reply, 5-6.)
Cross-Defendants further contend the “economic loss rule bars recovery of
Lorenz’s negligence claim because any damages are contemplated by the terms of
the lease agreement.” (Id.)
The Erlich Court
ruled in relevant part:
“it is sufficient to note that more
than mere negligence has been involved in each case where tort damages have
been permitted. The benefits of broad compensation must be balanced against the
burdens on commercial stability. ‘[C]ourts should be careful to apply tort
remedies only when the conduct in question is so clear in its deviation from
socially useful business practices that the effect of enforcing such tort
duties will be ... to aid rather than discourage commerce.” (Freeman &
Mills, supra, 11 Cal.4th at p. 109 (conc. and dis. opn. of Mosk, J.).)
...
‘No California case has allowed
recovery for emotional distress arising solely out of property damage’ (Cooper
v. Superior Court (1984) 153 Cal.App.3d 1008, 1012,); moreover, a
preexisting contractual relationship, without more, will not support a recovery
for mental suffering where the defendant's tortious conduct has resulted only
in economic injury to the plaintiff. (Smith v. Superior Court (1992) 10
Cal.App.4th 1033, 1040, fn. 1, 13; Mercado v. Leong (1996) 43
Cal.App.4th 317, 324, emotional distress damages are unlikely when the
interests affected are merely economic]; Camenisch v. Superior Court
(1996) 44 Cal.App.4th 1689, 1691(Camenisch ) [emotional distress damages are
not recoverable when attorney malpractice leads only to economic loss].)
...
it reiterates that ‘unless the
defendant has assumed a duty to plaintiff in which the emotional condition of
the plaintiff is an object, recovery is available only if the emotional
distress arises out of the defendant's breach of some other legal duty and the
emotional distress is proximately caused by [breach of the independent duty].
Even then, with rare exceptions, a breach of the duty must threaten physical
injury, not simply damage to property or financial interests. [Citations.]’
(Erlich, supra, 21
Cal.4th at 554-6; citing Potter v. Firestone Tire & Rubber Co.
(1993) 6 Cal.4th 965.)
The Butler-Rupp
finding provides further elaboration:
“The question therefore becomes whether
the jury's finding of negligence can support an award of damages for emotional
distress on the present record. The Erlich decision also
addresses this issue. The Erlich court observed emotional
distress damages are not “ ‘available in every case in which there is an
independent cause of action founded upon negligence.’ [Citation.]” (Erlich
v. Menezes, supra, 21 Cal.4th 543, 554.) Such damages have generally
been allowed where the defendant's conduct caused physical injury. For
example, Potter v. Firestone Tire & Rubber Co. (1993) 6
Cal.4th 965, affirmed a judgment of damages where the plaintiffs suffered
from prolonged exposure to a carcinogen. But in the absence of physical
injury, the courts have never allowed recovery of damages for emotional
distress arising solely from property damage or economic injury to the
plaintiff. The injury suffered by the Erlich plaintiffs—the
negligent construction of their house—did not cause physical injury and
“derive[d] from an inherently economic concern.” [emphasis added]
(Butler-Rupp v.
Lourdeaux, supra, 134 Cal.App.4th at 1227–1228.)
Thus, the relevant
inquiry the court asks here is whether there are no triable issues of material
fact regarding a physical injury which Cross-Defendants proximately caused.
First, the court notes that the damages alleged by Lorenz in her second cause
of action differ from those alleged in the first cause of action, namely Lorenz
here alleges she suffered “damages including but not limited to emotional and
physical distress which included the loss of an unborn child, and loss revenue
[sic].” (TACC ¶15.) Thus, the alleged injuries are not merely economic,
but Lorenz explicitly alleges Cross-Defendants caused physical injuries as a
result of their “actions and omissions.” (TACC ¶16.)
Second, the Butler-Rupp
contemplated the influence of the economic loss rule and explained that damages
not for “purely economic loss” can still be award. (Butler-Rupp, supra, 134
Cal.App.4th at 1229.) Precedent has also found duty in emotional distress cases
by looking at seven traditional factors: “(1) the foreseeability of harm to the
plaintiff, (2) the degree of certainty that plaintiff suffered injury, (3) the
closeness of the connection between the conduct and the injury suffered, (4)
the moral blame attached to defendant's conduct, (5) the policy of preventing
future harm, (6) the extent of the burden to the defendant, and (7) the
consequences to the community of imposing a duty to exercise care with
resulting liability for breach, and the availability, cost, and prevalence of
insurance for the risk involved,” where foreseeability is of limited use. (Lawson
v. Management Activities, Inc. (1999) 69 Cal.App.4th 652, 657.)
Here, viewing the
evidence in a light most favorable to the nonmoving party, triable issues of
material fact remain as to the closeness of connection between
Cross-Defendants’ conduct and Lorenz’s injuries, the extent of
Cross-Defendants’ burden for Lorenz’s physical injuries, and the degree of
certainty that Lorenz suffered her physical injuries as a result of
Cross-Defendants’ conduct.
For these reasons,
Cross-Defendants’ motion is denied as to the second cause of action.
c. Fourth Cause of Action: Negligent
Infliction of Emotional Distress
Negligent infliction of emotional distress (“NIED”) is not an
independent tort; it is merely convenient terminology descriptive of the
context in which the negligence occurred.¿ (Long v. PKS, Inc.¿(1993) 12
Cal.App.4th 1293, 1297.)¿ As with any cause of action for negligence, the
traditional elements of duty, breach of duty, causation and damages apply.¿ (Ess¿v.
Eskaton Props.¿(2002) 97 Cal.App.4th 120, 126.)¿ Klein v.
Children’s Hospital Medical Center (1996) 46 Cal.App.4th 889, 894 (Klein)
holds that “[w]hether plaintiffs can recover damages for NIED is dependent upon
traditional tort analysis” for a negligence claim. Thus, Klein merely
stands for the proposition that an NIED claim carries similar pleading
standards to that of a “negligence” claim, not that an NIED claim may not be
pled.
Here,
Cross-Defendants again emphasize that NIED is not an independent tort. (Motion,
18.) Cross-Defendants also repeat analogous contentions from the second cause
of action. (Motion, 18-20.)
Thus, as the court
has found triable issues of material fact to exist as to the second cause of
action, the court also therefore denies Cross-Defendants’ motion as to the
fourth cause of action.
d. Fifth Issue: Management Defendants’
26th Affirmative Defense of Agent Immunity Rule
“It is . . . well established that corporate agents and
employees acting for and on behalf of a corporation cannot be held liable for
inducing a breach of the corporation’s contract.” (Shoemaker v. Myers (1990)
52 Cal.3d 1, 24.) “[T]he tort cause of action for interference with
contract does not lie against a party to the contract.” (Applied
Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503,
514.) “[T]he agent’s immunity rule has no direct applicability to a claim
for interference with contract rights. The rule is that duly acting
agents and employees cannot be held liable for conspiring with their own
principals.” (Mintz v. Blue Cross of California (2009) 172
Cal.App.4th 1594, 1605.) “[T]he rule, on its face, applies only to claims
of conspiracy to commit a tort of violate a statute.” (Id.)
“[T]here is no financial advantage exception to the rule that a corporate agent
cannot be liable for interfering with its principal’s contract.” (Id.
at 1606.) “An agency is proved by evidence that the person for whom the
work was performed had the right to control the activities of the alleged
agent.” (van’t Rood v. County of Santa Clara (2003) 113
Cal.App.4th 549, 572.)
Cross-Defendants
contend that Management Defendants can be held personally liable in tort,
“because transaction between rental agent and landlord was clearly intended to
affect tenants and because harm would be foreseeable to tenants if rental agent
did not properly perform his duty.” (Motion, 20.)
In
opposition, Management Defendants first contend that the listed agent, pursuant
to the Lease Agreement between the parties, was Defendant Pres. Now, where
Defendants Herrera and Plotner worked. (Opposition, 2.) Additionally, Management
Defendants point to the Property Management Agreement signed between Lorenz and
Management Defendants, and its Indemnity Provision which states:
Paragraph 4(B) of the Property
Management Agreement, provides that the Owner shall:
Indemnify, defend and hold harmless
Property Manager, and all persons in Property Manager's firm, as permitted by
law, from all costs, expenses, suits, liabilities, damages, attorney fees and
claims of every type, including but not limited to those arising out of injury
or death of any person, or damage to any real or personal property of any
person, including Owner, (i) for any repairs performed by Owner or by others
hired directly by Owner; (ii) for those acts relating to the management,
leasing, rental, security deposits or operation of the Property by Property
Manager, or any person in Property Manager's firm, or the performance or
exercise of any of the duties, powers or authorities granted to Property
Manager; or (iii) from any incorrect or incomplete information supplied by
Owner, or from any material facts that Owner knows but fails to disclose
including dangerous or hidden conditions on the Premises.
(Opposition,
3-4; Herrera Decl., ¶ 14; Compendium, Exh. C.) Management Defendants further
contend the agent immunity rule applies here as “they were merely acting as an
agent of the Owner and/or employee of Pres. Now Inc., a management company
hired by the Owner.” (Opposition, 8.) Thus, Management Defendants contend they
were acting in their official capacity, and not “for their individual
advantage,” and provide supporting authority for their contentions. (Id.)
In reply,
Cross-Defendants contend “discrimination, retaliation, civil rights violations,
interference with contractual relations and intentional infliction of emotional
distress (even as mere allegations) fall outside the scope of Property
Management Defendants’ official duties as rental agents. Indeed, the Property
Management Defendants owed an affirmative independent legal duty to Plaintiffs
as tenants of the property not to permit discrimination, retaliation, civil
rights violations, interference, and intentional infliction of emotional
distress.” (Reply, 3-4.) Thus, Cross-Defendants contend that liability should
be imposed, and the agent immunity rule should not be applied, as to Management
Defendants because they acted outside the scope of their actions as agents of
Lorenz. (Reply, 3-5.) Cross-Defendants further request summary adjudication
stating, “[w]hether an affirmative defense of agent immunity applies to the
torts committed by the property management agents of a landlord is a matter of
law.” (Reply, 2.) Thus, Cross-Defendants contend it is a matter of law that the
agent immunity rule cannot provide an affirmative defense, since Management
Defendants acted outside the scope of their official duties. (Reply, 2-5.)
However, while the
applicability of the agent immunity rule is normally a matter of law, there
remain several triable issues of material fact as to whether Management
Defendants acted outside the scope of their official duties as agents to
Lorenz, thereby nullifying the agent immunity affirmative defense. Thus,
Cross-Defendants have failed to show that Management Defendants’ affirmative
defense to be void of merit.
For
these reasons, Cross-Defendants’ motion is denied as to the 26th Affirmative
Defense.
Conclusion
Cross-Defendants’
motion is denied. Cross-Defendants are to give notice.