Judge Gail Killefer, Case Number: 21STCV37575, Date: 2025-01-03 Tentative Ruling

OPPOSING PARTY: Plaintiffs Sergio Vargas Cardenas, Norma Sarai Escobar, and their son Sergio Emmanuel Varga

PROCEEDING: Motion for Summary Adjudication as to the Issue of Attorney’s Fees

TENTATIVE: The court declines to rule on Defendant’s Motion because it is based on issues not raised in the pleadings. On its own motion, the court strikes references to attorney’s fees in the Complaint without leave to amend.

On October 13, 2021 Wendy Padilla Morena, Maria Rivas, Melvin Eduardo Moreno, Neris Velazquez, Marta Estela Soriano, Genesis Velazques, Sergio Vargas Cardenas (“Sergio”); Norma Sarai Escobar, and Sergio Emmanuel Vargas (“Plaintiffs”) filed a Complaint against Defendants Esther Sang, Chales Awng Sim, Ara Petrosyan as an individual and trustee of the Dergena Trust, and Does 1 to 10.

The Complaint alleges seven causes of action: (1) breach of implied warranty of habitability, (2) breach of statutory warranty of habitability, (3) breach of covenant of quiet enjoyment, (4) negligence, (5) violation of Civ. Code § 1942.4; (6) private nuisance, and (7) unjust enrichment.

Plaintiffs have settled with Defendant Ara Petrosyan. Plaintiffs Maria Rivas and her children, Wendy Padilla Moreno and Melvin Eduardo Moreno have accepted Defendants Esther Sang and Chales Awng Sim’s CCP § 998 Offers.

Defendants Esther Sang and Chales Awng (collectively “Defendants”) now move for summary adjudication as to Plaintiffs’ Prayer for Attorney Fees. Plaintiffs oppose the Motion. The matter is now before the court.

motion for summary adjudication

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. Atl. 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.) Summary adjudication may be granted as to one or more causes of action within an action, or one or more claims for damages. (CCP, § 437c(f).)¿¿¿¿¿¿¿¿¿¿¿

A defendant moving for summary judgment bears two burdens: (1) the burden of production – presenting admissible evidence, through material facts, sufficient to satisfy a directed verdict standard; and (2) the burden of persuasion – the material facts presented must persuade the court that the plaintiff cannot establish one or more elements of a cause of action, or a complete defense vitiates the cause of action. (CCP, § 437c(p)(2);¿Aguilar,¿supra, 25 Cal.4th at p. 850-851.) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.¿¿(Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)¿¿Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”¿(Ibid.)¿¿¿¿¿¿¿¿¿¿

“On ruling on a motion for summary judgment, the court is to ‘liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’” (Cheal v. El Camino Hospital¿(2014) 223 Cal.App.4th 736, 760.) On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Binder v. Aetna Life Ins. Co.¿(1999) 75 Cal.App.4th¿832, 839.)¿¿¿¿¿¿¿

Defeating summary judgment requires only a single disputed material fact. (See CCP, § 437c(c) [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”] [italics added].) Thus, any disputed material fact means the court must deny the motion – the court has no discretion to grant summary judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)¿¿¿¿¿

1) Judgment filed with the Court on December 23, 2024 in favor of Plaintiff Maria Rivas against the moving Defendants Esther Sang and Charles Dim-Awng pursuant to Code of Civil Procedure § 998 attached as Exhibit 5 to the Declaration of Lanetta Rinehart.

2) Judgment filed with the Court on December 23, 2024 in favor of Plaintiff Wendy Padilla Moreno against the moving Defendants Esther Sang and Charles Dim-Awng pursuant to Code of Civil Procedure § 998 attached as Exhibit 6 to the Declaration of Lanetta Rinehart.

3) Judgment filed with the Court on December 23, 2024 in favor of Plaintiff Melvin Eduardo Moreno against the moving Defendants Esther Sang and Charles Dim-Awng pursuant to Code of Civil Procedure § 998 attached as Exhibit 7 to the Declaration of Lanetta Rinehart.

4) Plaintiffs’ Request for Dismissal of the Fifth Cause of Action for Violation of Civil Code § 1942.4 as attached as Exhibit 8 to the Declaration of Lanetta Rinehart.

5) Article 14.6 of Chapter IV of the Los Angeles Municipal Code § 49.99.4 enacted March 27, 2020 attached as Exhibit 9 to the Declaration of Lanetta Rinehart.

6) Article 14.6 of Chapter IV of the Los Angeles Municipal Code § 49.99.4 enacted May 12, 2020 attached as Exhibit 10 to the Declaration of Lanetta Rinehart.

7) Los Angeles Municipal Code § 151.09 and 151.30 attached as Exhibit 11 to the Declaration of Lanetta Rinehart.

8) That Van Nuys is a neighborhood within the City of Los Angeles, State of California.

Plaintiffs’ request for judicial notice is granted as to Exhibits 1 to 7 but denied as to Exhibit 8 because Plaintiffs offer no evidence that Van Nuys is a neighborhood within the city limit of the City of Los Angles.

Objection No. 1 is sustained due to lack of authentication. Objection Nos. 2 and 3 are overruled as the court is only required to rule on relevant objections.

Defendants’ objection to the Declaration of Sergio Cardenas is sustained as the declaration is not certified by a qualified interpreter.

Defendants move for summary adjudication as to the issue of attorney’s fees. Defendants assert that attorney’s fees are not recoverable under the rental contract nor under Civ. Code §§ 1942.4 and 1942.5.

Attorney’s fees and costs are recoverable by a party who prevails in any action on a contract, “where the contract specifically provides that attorney's fees and costs[.]” (Civ. Code, § 1717.) Attorney’s fees may be recovered as costs when authorized by contract, statute, or law. (CCP, § 1033.5(a)(10).)

Defendants maintain that the Parties’ contract purportedly signed on July 1, 2021, does not contain an attorney’s fee provision. (Defendants’ Compendium of Evidence (“DCOE”) Ex. A.) Defendants assert that the contract Plaintiff’s previously signed with the former owner Ara Petrosyan was the only contract that provided for attorney’s fees.

Exhibit A is not properly authenticated as the Defendants fail lay the foundation for its admission. Defendants failed to provide a declaration or deposition transcript that would allow the court to discern when the contract was drafted and signed by Plaintiff Sergio. Exhibit A is authenticated by defense counsel who fails to provide facts to permit the court to find he has personal knowledge about Exhibit A and its execution.

While affidavits and declarations may be filed in support of a motion for summary judgment, such affidavits or declarations “shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.” (CCP, § 437c(d) [italics added].)

The counteraffidavit concludes with the allegation that the ‘facts stated herein are within the personal knowledge of the affiant, and the affiant, if sworn as a witness, can testify competently thereto.’ Where the facts stated do not themselves show it, such bare statement of the affiant has no redeeming value and should be ignored.

(Snider v. Snider (1962) 200 Cal.App.2d 741, 754, see also Gamboa v. Northeast Community Clinic¿(2021) 72 Cal.App.5th 158, 169.)

As Defendants failed to properly authenticate Exhibit A, Defendants failed to meet their initial burden of showing Plaintiffs are not entitled to attorney’s fees pursuant to a contractual rental agreement. However, Plaintiff’s Complaint does not include a breach of contract claim, entitling Plaintiffs to attorney’s fees.

Moreover, in opposition to Defendants’ Motion, Plaintiff Sergio submitted a declaration asserting that he has not seen Exhibit A nor signed it. (Sergio Decl. , ¶ 3, Ex. A.) However, the Sergio’s declaration is not admissible as it contains statements in Spanish that have not been translated and certified under oath by a qualified interpreter as required by Cal. Rules of Court rule 3.1110(g).

“Summary judgment cannot be granted on a ground not raised by the pleadings.” (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663 (Bostrom). As Defendants fail to show that Plaintiffs are seeking attorney’s fees pursuant to a contract, the court cannot grant Defendant’s request to attorney’s fees on this issue.

(a)¿A landlord of a dwelling may not demand rent, collect rent, issue a notice of a rent increase, or issue a three-day notice to pay rent or quit pursuant to subdivision (2) of Section 1161 of the Code of Civil Procedure, if all of the following conditions exist prior to the landlord’s demand or notice:

(2)¿A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord’s agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions.

(3)¿The conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause. For purposes of this subdivision, service shall be complete at the time of deposit in the United States mail.

(b)(1) A landlord who violates this section is liable to the tenant or lessee for the actual damages sustained by the tenant or lessee and special damages of not less than one hundred dollars ($100) and not more than five thousand dollars ($5,000).

(2) The prevailing party shall be entitled to recovery of reasonable attorney's fees and costs of the suit in an amount fixed by the court.

Defendants assert they are not liable under § 1942.4 because they were never mailed or provide notice by LAHD.

(Undisputed Material Fact (UMF) No. 5.) Plaintiffs do not dispute that Defendants were not served with notice and Plaintiffs moved to dismiss the firth cause of action for violation of Civil Code § 1942.4. (Rinehart Decl., ¶ 7, Ex. 8.)

As the fifth cause of action is dismissed, the court cannot grant summary on this issue as it is moot.

(h) Any lessor or agent of a lessor who violates this section shall be liable to the lessee in a civil action for all of the following:

(i) In any action brought for damages for retaliatory eviction, the court shall award reasonable attorney's fees to the prevailing party if either party requests attorney's fees upon the initiation of the action.

Defendants assert that Plaintiffs are not entitled to attorney’s fees under § 1942.5 because Plaintiffs did not plead an action for retaliatory eviction. The court agrees. “Generally, the pleadings determine the relevant issues on a summary judgment motion, and the motion may not be granted or denied on issues not raised by the pleadings.” (Runnymede Holdings, LLC v. Foster (2023) 96 Cal.App.5th Supp. 1 [315 Cal.Rptr.3d 1, 7–8, 96 Cal.App.5th Supp. 1, 8].) “Summary judgment cannot be granted on a ground not raised by the pleadings.” (Bostrom, supra, 35 Cal.App.4th at p. 1663.) “Conversely, summary judgment cannot be denied on a ground not raised by the pleadings.” (Ibid.)

The court cannot find that Plaintiffs are entitled to attorney’s fees for retaliatory eviction when the Complaint does not plead a cause of action for retaliatory eviction under § 1942.5. Similarly, the court cannot grant summary adjudication on an issue not pled in the Complaint.

Plaintiffs further assert that Plaintiffs Maria Rivas and her children, Wendy Padilla Moreno and Melvin Eduardo Moreno now have a judgment against the moving Defendants, which renders the instant motion moot. (Rinehart Decl. Ex. 5 to 7.) Plaintiffs Exhibits 5 to 7 are CCP § 998 Offers wherein Defendants allowed judgment to be taken against them in favor of Plaintiffs, with each side agreed to bear their own costs. (Id.) As the fifth cause of action was dismissed, Plaintiffs fail to show that there is a statutory or contractual basis that would entitle Plaintiffs to attorney’s fees.

In opposition, Plaintiffs assert that triable issue of fact regarding attorney’s fees exists under Los Angeles Municipal Code § 151.30(I)(1) and Article 14.6 of Chapter IV of the Los Angeles Municipal Code § 49.99.7. However, facts not alleged in a complaint are not presumed to exists. (Schick v. Lerner (1987) 193 Cal.App.3d 1321, 1327.) “The burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint.” (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342 [italics original].) “‘The [papers] filed in response to a defendant's motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleading.’ [Citations.]” (Id.)

Moreover, Plaintiffs assert that when attorney’s fees are authorized by statute, they are an element of costs and not damages. Accordingly, Defendants cannot move for summary adjudication on such an issue. (CCP, § 473c(f)(1) [“A party may move for summary adjudication as to . . .one or more claims for damages . . .”].) However, with the fifth cause of action dismissed, and with no other statutory claim for attorney’s fees stated in the Complaint, the court cannot find that Plaintiffs have adequately pled a claim for attorney’s fees, thus permitting the court to find in favor of Defendants as a matter of law.^{^[1]}

Conversely, because the Complaint contains no viable claim for attorney’s fees, the court cannot rule on an issue not presented in the pleadings. “‘[S]ummary judgment cannot be denied on a ground not raised by the pleadings. [Citation.]’” (Kendall v. Walker (2009) 181 Cal.App.4th 584, 598 citing Bostrom, supra, 35 Cal.App.4th at p. 1663.)

Accordingly, the court declines to rule on Defendant’s Motion because it is not based on issues raised in the pleadings. On its own motion, the court strikes references to attorney’s fees in the Complaint without leave to amend. (CCP § 436.)

The court declines to rule on Defendant’s Motion because it is based on issues not raised in the pleadings. On its own motion, the court strikes references to attorney’s fees in the Complaint without leave to amend.

[1] “[I]f summary judgment is granted on the ground that the complaint is legally insufficient, but it appears from the materials submitted in opposition to the motion that the plaintiff could state a cause of action, the trial court should give the plaintiff an opportunity to amend the complaint before entry of judgment .” (Bostrom, supra, 35 Cal.App.4th at p. 1663.)