Judge: H. Jay Ford, III, Case: 21SMCV01665, Date: 2024-12-05 Tentative Ruling

Case Number: 21SMCV01665    Hearing Date: December 5, 2024    Dept: O

 Case Name:  Booth, et al., v. Ingraham, et al.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendant David G. Ertz

RESP. PARTY:         Plaintiffs Ron Booth, Michele Booth, Sofia Booth, and Dominique Booth

TENTATIVE RULING

            Defendant David G. Ertz Motion for Summary Judgment as to the 2^nd and 3^rd causes of action within Plaintiffs Ron Booth, Michele Booth, Sofia Booth, and Dominique Booth FAC is DENIED. Defendant fails to meet its burden to show Plaintiffs cannot establish an element of their claims or that Defendant shown undisputed facts that support each element of an affirmative defense. Even if Defendants had met their burden, Plaintiffs show there are disputed material facts as to the HOA not meeting the minimum insurance requirements of Civ. Code § 5805, and if so, Defendant could be jointly and severally liable for the causes of action, if not directly liable.

Defendant David G. Ertz’s Request for Judicial Notice is GRANTED.

Plaintiff’s unnumbered objections to paragraphs 11, 12 and 13 of the Declaration Jeff Hughes are OVERRULED.

REASONING

            Where a defendant seeks summary judgment or adjudication, he must show that either “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 that cause of action.” (Code of Civil Procedure §437c(o)(2).) 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 plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Id.) If unable to prove the existence of a triable issue of material fact, summary judgment or summary adjudication in favor of the defendant is proper. (Id.)

            “The burden on a defendant moving for summary judgment based upon the assertion of an affirmative defense is different than the burden to show that one or more elements of the plaintiff's cause of action cannot be established. Instead of merely submitting evidence to negate a single element of the plaintiff's cause of action, or offering evidence such as vague or insufficient discovery responses that the plaintiff does not have evidence to create an issue of fact as to one or more elements of his or her case the defendant has the initial burden to show that undisputed facts support each element of the affirmative defense. If the defendant does not meet this burden, the motion must be denied.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467–468.)

            “In general, the opposing party may not rely on the opposing party's own pleadings (even if verified) to oppose the motion. Code Civ. Proc. § 437c, subd. (p); Roman v BRE Props., Inc. (2015) 237 CA4th 1040, 1054, 188 [plaintiff must show “specific facts” to defeat defendant's summary judgment motion and may not rely on allegations of complaint].). A plaintiff may rely on the plaintiff's pleadings to resist a summary judgment motion if the defendant's motion is based on the legal insufficiency of the plaintiff's claims as alleged. Hand v Farmers Ins. Exch. (1994) 23 CA4th 1847, 1853, 29 CR2d 258.” (Cal. Judges Benchbook Civ. Proc. Before Trial § 13.24 (2023).)

            “[P]ointing out the absence of evidence to support a plaintiff's claim is insufficient to meet the moving defendant's initial burden of production. The defendant must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891; see Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 808 [“It was not enough simply to assert that [Plaintiff] had no evidence supporting an element of each cause of action; a moving defendant “must indeed present ‘evidence,’ ” such as “ ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken”].)

            Finally “The rule that a trial court must liberally construe the evidence submitted in opposition to a summary judgment motion applies in ruling on both the admissibility of expert testimony and its sufficiency to create a triable issue of fact. [Citations.] In light of the rule of liberal construction, a reasoned explanation required in an expert declaration filed in opposition to a summary judgment motion need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion or at trial.” ((Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189. Summary judgment reversed.  Trial court abused its discretion by excluding expert testimony offered in opposition to motion for summary judgment.)

I.                Summary Adjudication of the 2^nd cause of action for Negligence – Count 2 and 3^rd cause of action for Nuisance

“The elements of a cause of action for negligence are well established. They are ‘(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

The elements of a claim for private nuisance are: “First, the plaintiff must prove an interference with his use and enjoyment of its property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage. Third, the interference with the protected interest must not only be substantial, it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1176. reh'g denied (Oct. 25, 2022), review denied (Jan. 18, 2023).)

A nuisance includes: “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (Civ. Code, § 3479.)

Defendant David G. Ertz (“Ertz”) argues that Plaintiffs Ron Booth, Michele Booth, Sofia Booth, and Dominique Booth (collectively “Plaintiffs”) cannot establish the negligence cause of action, nor the nuisance cause of action because Ertz became the owner of Unit #4 only seven months prior to Plaintiffs vacating Unit #3, and Ertz never received communication from Plaintiffs regarding any issues within Ertz’s unit which were affecting Plaintiff’s unit. (SSUF, ¶¶ 9–15; Dingilian Decl., ¶¶ 6–11, 13–16; Ex. D–I, K–N.)  Ertz further argues and shows that the Plaintiffs only made complaints to the prior owner of Unit #4, Defendants Lee Ingraham (“Ingraham”), Defendant Alexandria Rausch’s husband Perrin Rausch (“Perrin”), and another non-party individual named Leaona Rollins. (SSUF, ¶ 16; Dingilian Decl., ¶ 16; Ex. N.)  However, Ertz fails to point to authority or otherwise show how this evidence establishes Plaintiffs cannot establish one or more of the elements of their claim for negligence or nuisance as alleged in the complaint.  Regardless, Plaintiffs show there was a conflicting length in the overlapping tenancy between Plaintiffs and Ertz. (Form Interrogatories (Ex. K [FROG #2.4] and the FAC have a Plaintiff move out date of 8-30-20, an overlap in tenancy between Ertz and Plaintiffs of nine months instead of seven. (SSUF, ¶¶ 13, 14; Dingilian Decl., ¶¶ 7, 13–15; Ex. E, K–M.)

Ertz further argues Plaintiffs cannot establish their negligence cause of action because the Unit #4 mold remediation occurred before Ertz became an owner, and there is no evidence of any alleged habitability issues within unit #3 from tenancy overlap period of 11-27-19 to 6-30-20. (SSUF, ¶¶ 18–24; Dingilian Decl., ¶¶ 6, 8, 12–16; Ex. D, F, J–N.) Ertz’s proffered evidence, however, does not show that Plaintiff’s moved away from Unit #3 on 6-30-24. As Plaintiffs correctly argue, the only shows an 8-30-24 move out date.

Ertz’s argues the evidence of the 6-26-20 and 7-10-20 Envirocheck on-site mold inspection show that as of 7-10-24 there was no evidence of any water leaks.  However, there is no evidence of an inspection occurring on or around the 8-30-20 move out date, and thus this evidence is does not show as a matter of law, that no leaks occurred during the time of ownership overlap between the parties. Additionally, Plaintiffs provide admissible expert testimony showing a triable issue of fact regarding the source of the water intrusion showing that after multiple “visual inspection[s] of the property” and reviewing the “relevant documentation”:

It is my opinion to a reasonable degree of certainty that some of the water intrusions into the Property originated from within Unit 4 – that has an adjoining common wall with penetrations leading into Unit 3. In order to conclusively determine the exact source(s) of the various water intrusions into the Property, including from Unit 4, and to better evaluate the scope and timeframe of such intrusions, I will require additional inspection and testing of the property, including but not limited to, entrance and inspection of each of the adjoining units to the Property, testing of the appliances contained therein, and destructive testing and inspection of the space in between the walls of the Property and the adjoining units.  

(Rosenweig Decl., ¶ 6, Ex. C (Hughes Decl., ¶¶ 8–13).)

            Thus, even if Defendant do meet their burden to show Plaintiffs could not meet an element of their negligence or nuisance claims, Plaintiffs provide evidence of showing disputed material facts exist and that additional destructive testing is needed to properly assess the time and and scope of the alleged habitability conditions.

Simillarily, Plaintiffs show that triable issues of fact remain which Defendants have not raised in their motion. Namely, Plaintiffs show that Ertz, as an owner of a unit within the HOA, could be jointly and severally liable for tort claims related to common areas within the HOA property because the HOA does not have the minimum insurance amount to cover the tort claims pursuant to Civ. Code, § 5805. (Plaintiffs Additional Disputed Facts (“PADF”), ¶¶ 1–5.)

“California cases hold that a homeowners association is liable to a member who suffers injury or damages as a result of alleged negligence of the association in failing to maintain a common area adequately.” (Ritter & Ritter, Inc. Pension & Profit Plan v. The Churchill Condominium Assn. (2008) 166 Cal.App.4th 103, 120.) “[T]enants in common who delegate control and management of the property remain jointly and severally liable for tortious acts or omissions causing injury to third persons.” (Ruoff v. Harbor Creek Community Assn. (1992) 10 Cal.App.4th 1624, 1629 [holding that HOA members can still be held jointly and severally liable if the HOA does not have the proper insurance coverage pursuant to CCP § 5805, which at the time of this ruling was § 1365.7].)

Senate Bill 2072, enacted in 1994, is reflected in Civ. Code § 5805, which provides limited immunity from joint and several liability for individual owners in common interest developments, including those in an HOA, under certain conditions. (See Civ. Code, § 5805.) Civil Code § 5805 states that any cause of action in tort against an owner of a separate interest, arising solely by reason of an ownership interest as a tenant-in-common in the common area, must be brought only against the association and not against the individual owners, provided that the association maintains a certain level of prescribed insurance coverage. (See ibid.)

Civ. Code § 5805(b) specifically provides the following:

(b) Any cause of action in tort against any owner of a separate interest arising solely by reason of an ownership interest as a tenant-in-common in the common area of a common interest development shall be brought only against the association and not against the individual owners of the separate interests, if both of the insurance requirements in paragraphs (1) and (2) are met:

(1) The association maintained and has in effect for this cause of action, one or more policies of insurance that include coverage for general liability of the association.

(2) The coverage described in paragraph (1) is in the following minimum amounts:

(A) At least two million dollars ($2,000,000) if the common interest development consists of 100 or fewer separate interests.

(B) At least three million dollars ($3,000,000) if the common interest development consists of more than 100 separate interests.

(Civ. Code, § 5805, subd. (b).)

“[T]he issue of sufficiency of the insurance policy would be a question of fact, inappropriate for determination by summary judgment. (Ruoff, supra, 10 Cal.App.4th at p. 1631.) The burden is on the moving party to establish immunity under Civil Code § 5805. (Schmidt v. Bank of America (2014) 223 Cal.App.4th 1489, 1512.)

Not only does Ertz not point to any evidence to show that HOA had the requisite insurance amount to immunize Ertz from liability pursuant to Civ Code § 5805, Plaintiffs show that the HOA only had $1,000,000 in insurance which does not meet the minimum coverage requirements of section 5805. (PADF, ¶ 3; Rosenweig Decl., ¶ 3; Ex. A, Defendant HOA’s responses to FROG No 4.1.) Thus, Plaintiffs show that Ertz is likely jointly and severally liable to Plaintiffs tort claims. Even if Ertz provides an argument that the HOA insurance coverage of $1 million was sufficient, which he does not, this would still be a question of fact and not appropriate for “determination by summary judgment.” ((Ruoff, supra, 10 Cal.App.4th at p. 1631.)

Thus, Plaintiffs meets their burden to show a triable issue of fact as to both the negligence and nuisance causes of action. Ertz’s motion for summary judgment is DENIED.