Case Number: YC072796    Hearing Date: April 4, 2023    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka                                                                                                            Tuesday, April 4, 2023

Department B                                                                                                                                             Calendar No. 5

PROCEEDINGS

Sabine De Weijer v. Brookside Village Homeowners Association, Inc., et al.

            YC072796

1.      Sabine De Weijer’s Motion for Summary Adjudication 

TENTATIVE RULING

Sabine De Weijer’s Motion for Summary Adjudication is denied.

Background

Plaintiff filed her Complaint on April 3, 2018. Plaintiff is the owner of real property located at 605 South Prospect Avenue, Unit 307, Redondo Beach, CA 90277. Her unit is part of a condominium development managed and maintained by Defendant Brookside Village Homeowners Association, Inc. (“HOA”), in accordance with a Declaration of Establishment of Conditions, Covenants and Restrictions (“CC&Rs”).  Plaintiff alleges that Defendant improperly maintained the common areas, as well as areas to which it had a duty to maintain including the attic space and cavity spaces above and adjacent to Plaintiff’s unit, which caused stains and defects to Plaintiff’s unit. Plaintiff alleged causes of action for: 1. Breach of CC&Rs; 2. Enforcement of Equitable Servitudes; 3. Nuisance; 4. Negligence; 5. Declaratory Relief.

Request for Judicial Notice

Plaintiff’s request for judicial notice of the grant deed and the recorded CC&Rs is granted pursuant to Evidence Code section 452(h). The Court takes judicial notice of the existence of these documents but does not take judicial notice of the truth of any matters set forth in those documents.

Objections

Defendant’s Objections

Declaration of Sabine DeWeijer: Objections 1 to 9 are overruled.

Declaration of Michael Wintheiser: Objections 1 to 11 are overruled.

Exhibits 24 and 25: Overruled.

Declaration of Elaine Ting: Objections 1 to 2 are sustained.

Plaintiff’s Objections

Declaration of Patrick A. Stremel: Objections 1-9, 13, and 14 are overruled. Objections 10-12 are sustained.

Declaration of Brian P. Daly: Objections 15-17 are overruled.

Declaration of John MacDowell: Objections 18 and 21 are sustained. Objections 19 and 20 are overruled.

Declaration of Tom Hacker: Objection 22 is sustained. Objections 23 to 38 are overruled.

Declaration of Jonathan Eubanks: Objections 39, and 41 to 50 are overruled. Objection 40 is sustained.

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. 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.

“A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” Code Civ. Proc., § 437c(p)(1).

“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).)

Code Civ. Proc., § 1008(b) states: “A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.”

Code Civ. Proc., § 437c(f)(2) states: “A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.”

Plaintiff’s original motion for summary adjudication was denied on November 4, 2020. Plaintiff now submits this renewed motion for summary adjudication based on newly obtained evidence.  (Plaintiff’s Motion, page 8, lines 6-15.)

            Plaintiff moves for summary adjudication of the following purported issues of duty:

            “Issue of Duty No. 1: Defendant Owes a Duty to Maintain the Common Area Attic Space. Defendant Brookside Village Homeowners Association, Inc. owed, and continues to owe, a duty under the CC&Rs to “manage, operate, control, repair, replace, or restore” the attic space and above De Weijer’s unit.

            Issue of Duty No. 2: Defendant Owes a Duty to Maintain Common Area Wall Cavity Space. Defendant Brookside Village Homeowners Association, Inc. owed, and continues to owe, a duty under the CC&Rs to “manage, operate, control, repair, replace, or restore” the wall cavity space adjacent to De Weijer’s unit.

            Issue of Duty No. 3: Defendant Owes a Duty to Exercise Due Care in Maintaining the Common Area Attic Space. Defendant Brookside Village Homeowners Association, Inc. owed, and continues to owe, a common law duty to exercise due care in maintaining the common area attic space above De Weijer’s unit.

            Issue of Duty No. 4: Defendant Owes a Duty to Exercise Due Care in Maintaining the Common Area Cavity Space. Defendant Brookside Village Homeowners Association, Inc. owed, and continues to owe, a common law duty to exercise due care in maintaining the common area wall cavity space adjacent to De Weijer’s unit.” (Plaintiff’s Motion, page 2, lines 3-18.)

            Plaintiff also moves for summary adjudication of the following purported causes of action:

        “Cause of Action for Breach of Governing Documents: Defendant Brookside Village Homeowners Association, Inc. has no defense to De Weijer’s First Cause of Action for Breach of CC&Rs because the HOA failed to “manage, operate, control, repair, replace, or restore” the attic space above and wall cavity space adjacent to De Weijer’s unit.

            Cause of Action for Enforcement of Equitable Servitudes: Defendant Brookside Village Homeowners Association, Inc. has no defense to Plaintiff’s Second Cause of Action for Enforcement of Equitable Servitudes because the HOA failed to “manage, operate, control, repair, replace, or restore” the attic space above and wall cavity space adjacent to De Weijer’s unit.

            Cause of Action for Declaratory Relief: Defendant Brookside Village Homeowners Association, Inc. has no defense to Plaintiff’s Fifth Cause of Action for Declaratory Relief because the HOA failed to “manage, operate, control, repair, replace, or restore” the attic space above and wall cavity space adjacent to De Weijer’s unit.” (Plaintiff’s Motion, page 2, lines 19-28 to page 3, lines 1-2).

            Issues of Duty: Issues 1 to 4

Plaintiff’s motion for summary adjudication of the four outlined issues of duty, above, is denied.

“The question of whether a duty exists under certain circumstances is generally a question of law.”  Transamerica Ins. Co. v. Superior Court (1994) 29 Cal.App.4th 1705, 1713. If the Court finds that it is appropriate to determine the existence or nonexistence of duty with respect to a contractual obligation, it may properly do so by ruling on that issue presented by a motion for summary adjudication.  See, Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 522.

Here, the Court finds that Plaintiff has not met her burden to establish, as a matter of law, that she is entitled to the granting of a motion for summary adjudication with respect to these specified issues of duty in the manner specifically laid out by Plaintiff in her notice of motion. With this ruling, however, the Court is not finding that Defendant owes no duty with respect to Plaintiff.  Instead, the Court’s ruling is based specifically on the proposition that the question of the existence of a duty of care is a question of law.  However, here, Plaintiff has inserted specific factual issues which renders the adjudication of legal issues of duty in her favor impossible as currently framed.

For example, Defendant apparently does not dispute that it has a duty of care to maintain common areas in the project except those that are designated as “Exclusive Easement Ares” as outlined in section 2.3.3 of the CC&Rs. Defendant also does not dispute that the wall cavity space and attic space is a common area.  (Defendant’s Response to Plaintiff’s Separate Statement of Facts, 5, 16.)

However, Plaintiff’s motion attempts to impose a duty to “manage, operate, control, repair, replace, or restore” these specific areas.  Plaintiff has failed to set forth a specific fact, supported with competent evidence, which specifically outlines that Defendant’s duty encompasses a duty to “manage, operate, control, repair, replace, or restore” the wall cavity and attic space.  It does appear that Defendant had some type of duty with respect to these identified areas.  In fact, Plaintiff herself appears to attempt to impose a broader duty to “maintain” and “exercise due care” with respect to these areas within her own Reply: “There are three main issues at play in this Motion: 1. Whether Defendant Brookside Village Homeowners Association, Inc. (the “HOA”) has a duty to maintain the Attic Space and Wall Cavity Space; 2. Whether the HOA has a duty to exercise due care in maintaining the Attic Space and Wall Cavity Space; and 3. Whether the HOA breached the CC&Rs when it violated those duties.”  (Plaintiff’s Reply, page 5, lines 3-7.)  However, Plaintiff’s motion does not merely attempt to adjudicate an issue of duty as to whether Defendant had a duty to maintain and exercise due care.  Instead, as noted above, Plaintiff’s motion specifically sought to adjudicate the issue of duty as follows: to “manage, operate, control, repair, replace, or restore” the attic space and wall cavity space.  Because Plaintiff’s own separate statement and evidence did not address all these purported aspects of duty, Plaintiff’s motion for summary adjudication of Issues 1 to 4 are denied.

Issues Related to Plaintiff’s Causes of Action

First, the Court finds that, because Plaintiff has not met her initial burden to specifically adjudicate the issues of duty, the motion for summary adjudication as to the first, second, and fifth causes of action which specifically relies upon the existence of a duty of care, as framed by Plaintiff, is denied.  In addition, even assuming arguendo that Plaintiff had simply attempted to impose a duty to maintain and use due care in maintaining the wall cavity space and attic space, the Court finds that Defendant has met its burden to provide specific facts to show the existence of a triable issue of material fact with respect to Plaintiff’s first, second, and fifth causes of action. (Defendant’s Separate Statement of Facts and Supporting Evidence, 115, 120, 127, 131, 132, 135-151, 153-202.)

Plaintiff argues that Defendant’s failure to maintain the attic space and cavity space have caused the accumulation of dust (“ghost shadows”) on certain walls and ceiling areas of her unit. Plaintiff primarily relies on the opinions of her retained expert mechanical engineer, Michael Wintheiser of EMP Consultants, Inc.  According to Mr. Wintheiser, the stains were caused by a breached dryer duct and bathroom exhaust ducts which caused excess moisture and mold growth. Plaintiff contends that Defendant failed to identify and address these issues.  (Plaintiff’s Separate Statement of Facts and Supporting Evidence, 96-103.)  Plaintiff also relies upon the findings of her own expert, Brian Spiegel, who opines that Defendant’s failures to maintain the common areas have caused these defects within Plaintiff’s unit.

However, Defendant has submitted the competent expert declaration of its own expert, Tom Hacker, who opines that the ghost shadows stem from the natural consequence of the location and environment of this condominium unit and project, as well as from Plaintiff’s own conduct in failing to properly ventilate her property.  During his inspection, Mr. Hacker saw no evidence of insulation deficiency and opined that additional insulation will not prevent ghost dusting. (Decl., Tom Hacker, ¶¶ 3-14.)  Plaintiff also alleges that hot air from dryer ducts have caused damage and mold to Plaintiff’s unit.  However, Hacker states that the ceiling areas where plaintiff claims mold exists are independently enclosed, so air from the dryer vents cannot reach this location.  Hacker also opines that the path from the dryer vents to the ceiling cavities is also impeded by wood fire blocking.  (Id.)

In addition, Defendant submitted competent evidence in the form of its own HVAC expert, Patrick A. Stremel, who refutes the conclusions of Plaintiff’s retained HVAC expert, Michael Wintheiser.  (Defendant’s Separate Statement of Material Facts and Supporting Evidence, 173-185.)  Stremel reviewed the declaration of Wintheiser and concludes that it was based on faulty analysis by utilizing different climatic months.  Stremel points out that data points can vary significantly depending on the months that were analyzed.  Stremel also points out that Wintheiser did not adequately describe the volume of air vis a vis the attic space volume.  Stremel asserts that this type of calculation is essential to quantify the amount of moisture which was claimed to be in the attic space.  Defendant has submitted evidence to show the existence of a triable issue of fact as to the accuracy and credibility of Wintheiser’s conclusions.  Defendant’s expert contends that the analysis is faulty because of the use of outdoor air temperatures because this does not accurately equate to the attic space temperature.  Defendant’s expert even concludes that the data provided by Wintheiser shows that the dew point was not reached in the attic space.  Stremel states that a significant amount of condensation in the attic space would be required to saturate through the insulation and other building components to allow moisture to transfer to the living space in Plaintiff’s unit.

Plaintiff also argues that she is entitled to summary adjudication of the first, second, and fifth causes of action because repairs on the laundry room ducts were not properly conducted because duct tape was used instead of aluminum HVAC tape.  Plaintiff offers no facts or authority to establish that summary adjudication must be granted on this theory. For example, Plaintiff provides no authority to establish that Defendant had a duty to use this material especially based on the date that the building was constructed.  Defendant has submitted evidence that the type of material used is common for this type of building.  

A triable issue of material fact exists as to whether Defendant’s maintenance of common areas caused or contributed to the conditions complained of by Plaintiff.  Thus, Plaintiff’s motion for summary adjudication of the first, second, and fifth causes of action is denied.

Therefore, for the foregoing reasons, Plaintiff’s motion for summary adjudication is denied.

Defendant is ordered to give notice of this ruling.