Judge: Helen Zukin, Case: SC126981, Date: 2022-09-16 Tentative Ruling
Case Number: SC126981 Hearing Date: September 16, 2022 Dept: 207
Background
Plaintiff, Hooman M. Melamed, M.D. (“Plaintiff”) owns a
condominium located within a development known as The Ridge Condominium. This is
a consolidated action arising from a series of interrelated disputes between
Plaintiff and the homeowners’ association for the development, Defendant and
Cross-Complainant The Ridge Condominium Association (“Defendant”), as well as
related parties, concerning, among other issues, Defendant’s refusal to allow
Plaintiff a variance in the parking rules for the property to accommodate a
disability following Plaintiff’s orthopedic surgery.
On July 7, 2017, Defendant filed a Cross-Complaint against
Plaintiff alleging causes of action for breach of the development’s governing
documents and declaratory relief. Defendant now moves for summary adjudication
of several causes of action and affirmative defenses asserted by the parties in
these consolidated actions as follows: (1) Defendant’s cause of action for
breach of governing documents, (2) Defendant’s claim for monetary damages in
connection with its claim for breach of governing documents, (3) Plaintiff’s
affirmative defense of selective enforcement to Defendant’s cause of action for
breach of the governing documents, (4) Plaintiff’s first cause of action for
violation of the Fair Housing Act in consolidated case 18SMCV00086, (5)
Plaintiff’s second cause of action for violation of the California Fair
Employment and Housing Act (“FEHA”) in consolidated case 18SMCV00086, (6)
Plaintiff’s third cause of action for violations of the Unruh Civil Rights Act
in consolidated case 18SMCV00086, and (7) Plaintiff’s fourth cause of action
for breach of fiduciary duty in consolidated case 18SMCV00086.
Request for Judicial Notice
Plaintiff requests the Court take judicial notice of
pleadings filed in consolidated actions 18SMCV00086 and SC126981
and an order entered in action SC126981. Plaintiff’s request is unopposed and
is GRANTED.
Objections to Evidence
Defendant’s objections to the Declaration of John Cruikshank
are GRANTED as to objections 12, 15, and 16, and are otherwise DENIED.
Defendant’s objections to the Declaration of Plaintiff are
GRANTED as to objections 5, 7, 8, and 14, and are otherwise DENIED.
Defendant’s objections to the Declaration of Andrew Zimbaldi
are GRANTED as to objections 4, 9, 11, 12, 15, 16, and 18, and are otherwise
DENIED.
Defendant’s objection to the Declaration of Gidon Vardi is
GRANTED as to paragraphs 19-28 and is otherwise DENIED.
Defendant’s objection to the Declaration of Iraj Khoubnazar is
GRANTED as to paragraph 7 and is otherwise DENIED.
Plaintiff’s objections to the Declaration of Jeff Ramirez
are DENIED.
Plaintiff’s objections to the Declaration of Yegeniv Postnyy
are DENIED.
Plaintiff’s objection to the Declaration of Carol Tolchin is
DENIED.
Summary Adjudication Standard
A party may move for summary adjudication as to one or more
causes of action, affirmative defenses, claims for damages, or issues of duty
if the party contends there is no merit to the cause of action, defense, or
claim for damages, or if the party contends there is no duty owed. (See CCP
§437c(f)(1).) “A motion for summary adjudication shall be granted only if it
completely disposes of a cause of action, an affirmative defense, a claim for
damages, or an issue of duty.” (Ibid.) A party
moving for summary adjudication bears the burden of persuasion that there are
no triable issues of material facts. Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850.
In analyzing motions for summary
adjudication, the court must “view the evidence in the light most favorable to
the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley
v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 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 adjudication 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).
As to
each claim as framed by the complaint, a cross-complainant moving for summary
adjudication must satisfy the initial burden of proof by establishing “each
element of the cause of action entitling the party to judgment on the cause of
action.” (C.C.P. § 437c(p)(1).) Once the plaintiff has met this burden, the
burden shifts to the defendant to show a triable issue of one or more material
facts exists as to the cause of action or a defense thereto. (C.C.P. §
437c(p)(1).) A defendant moving for summary adjudication as to a plaintiff’s
claim or cause of action must show “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.” (C.C.P. § 437c(p)(2).)
Analysis
As an initial matter, the Court
notes the second issue presented by Defendant’s motion seeks summary
adjudication of Defendant’s claim for monetary damages in connection with its
cause of action against Plaintiff for breach of the development’s governing documents.
Pursuant to Code Civ. Proc. § 437c(f)(1), summary adjudication of a claim for
damages is limited to summary adjudication of claims for punitive damages. (CCP
§ 437c(f)(1) [“a party may move for summary adjudication as to … one or more
claims for damages … if that party contends … that there is no merit to a claim
for damages as specified in Section 3294 of the Civil Code…”].) Civil Code §
3294 pertains to punitive damages. As the statute does not permit summary
adjudication of Defendant’s claim for monetary damages, Defendant’s motion for
summary adjudication of this claim is DENIED.
The remaining issues presented by
Defendant’s motion can be divided into two groups: (1) Defendant’s claim to
recover unpaid parking fines levied against Plaintiff in September 2016 (Issues
1 and 3), and (2) Plaintiff’s claims against Defendant for failure to respond
to his purported September 10, 2018, request for accommodation related to the
parking rules stemming from a surgery (Issues 4-7).
1. Parking
Fines
Defendant moves for summary
adjudication as to its cause of action for breach of the development’s
governing documents stemming from Plaintiff’s unpaid parking violations, as
well as to Plaintiff’s affirmative defense of selective enforcement.
Defendant’s cause of action for breach of the governing documents is asserted
in a Cross-Complaint filed in case SC126981. Defendant alleges Plaintiff
has been cited 70 times for violating parking rules, which resulted in the
Board of Directors issuing Plaintiff a fine in the amount of $3,075, which he
has failed to pay. Plaintiff has alleged, among other thing, that Defendant has
targeted him personally by selectively enforcing the parking rules against him
while allowing other violators to go unpunished.
The Court notes Defendant previously moved for summary
adjudication of this cause of action and Plaintiff’s affirmative defense of
selective enforcement, which was denied by the Court on August 16, 2018. Under Code Civ. Proc. § 437c(f)(2), “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.” Thus,
before the Court turns to the merits of Defendant’s motion, it must first
determine whether Defendant has shown newly discovered facts, circumstances, or
a change of law which can justify Defendant’s filing of a second motion for
summary adjudication on these issues.
The Court notes Defendant’s
February 22, 2018, motion for summary judgment, or, in the alternative, summary
adjudication sought summary adjudication of Defendant’s cause of action for
breach of the governing documents, Defendant’s claim for monetary damages in
connection with that cause of action, as well as Plaintiff’s affirmative
defense of selective enforcement. In other words, the prior motion sought
summary adjudication of Issues 1, 2, and 3 in Defendant’s instant motion.
In denying Defendant’s prior
motion for summary adjudication, the Court found Defendant had not sufficiently
established Plaintiff had in fact violated the governing documents as Defendant
had merely submitted the citations themselves as evidence of the violation,
along with deposition testimony from Plaintiff admitting to one potential
violation. The Court held this evidence was insufficient to meet Defendant’s
initial burden in establishing Plaintiff had “actually parked in a way that
violated the Governing Documents.” (Order at 6.)
Defendant acknowledges this prior
ruling but makes no mention of Code Civ. Proc. § 437c(f)(2). Defendant argues
its instant motion “addresses Judge Karlan’s concern” as expressed in denying
the prior motion by attaching “the Declarations of Yegeniv Postnyy and Jeff
Ramirez, the two patrol officers who issued the majority of the parking
citations at issue in the Association’s cross-complaint….” (Motion at 15.) In
their declarations, Mr. Postnyy states he personally observed 38 parking
violations at Defendant’s residence for blocking the walkway/sidewalk (Postnyy
Decl. at ¶5) and Mr. Ramirez states he personally observed an additional 12
such violations (Ramirez Decl. ¶6).
Defendant has not made any showing
as to whether this information was known to it at the time it filed its
previous motion for summary adjudication or “newly discovered” sometime after the
Court’s August 2018 ruling. The Court notes the citations themselves, which
were attached to Defendant’s prior motion, indicate the name of the patrol
officer who issued the citation. It thus appears Defendant was aware of the
identity of the individuals who had personally witnessed Plaintiff’s alleged
violations at the time it filed its previous motion.
Moreover, ordinarily, the right to
bring a renewed motion carries with it a responsibility of diligence with
respect to obtaining the necessary facts in the first place. As one treatise
has noted:
The apparent
intent [of CCP section 437c(f)(2)] is to prevent repetitive motions
aimed at the same issues. The effect is that a motion for summary judgment,
based on issues as to which the court previously denied summary adjudication,
is treated similarly to a motion for reconsideration of the order denying
summary adjudication
(Civil Proc. Before Trial (The
Rutter Group) 10:373.2 [italics in original]; see also Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1096, fn. 3 [“the
prohibition against repeated summary judgment motions was added to make the
summary judgment process more efficient and to reduce the opportunities for
abuses of the procedure (Sen. Rules Com., Off. of Sen. Floor Analyses, rev. of
Sen. Bill No. 2594 (Aug. 23, 1990))”].)
It is settled that a motion for
reconsideration based on new facts requires that the moving party must present “a
satisfactory explanation for failing to provide the evidence earlier, which can
only be described as a strict requirement of diligence.” (Garcia v. Hejmadi
(1997) 58 Cal.App.4th 674, 690.) This requirement has not been shown here. Defendant
does not allege it had difficulty in tracking down Mr. Postnyy or Mr. Ramirez
or in obtaining the testimony contained in their declarations. Nor does
Defendant offer any other explanation as to why it could not have submitted
these declarations in connection with its prior motion.
A second motion for summary
adjudication is barred where it offers “no ‘newly discovered facts or
circumstances,’” does not suggest that “‘a change of law’” had occurred, and
does not request the judge to “make a finding” concerning these statutory
requirements. (Bagley, supra, 73 Cal.App.4th at 1093, 1096; see also Schachter
v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 734.) The Court finds
Defendant has not demonstrated to the satisfaction of the Court that its
instant motion is not barred by Code Civ. Proc. § 437c(f)(2). Defendant does
not attempt to make the necessary showing and has not asked the Court to make a
finding as to the statutory requirements of Code Civ. Proc. § 437c(f)(2). At
most, Defendant shows that it has filed additional evidence responding to the
Court’s order denying its prior motion, but such piecemeal adjudication of the
sufficiency of Defendant’s evidence is precisely the sort of inefficiency
section 437c(f)(2) was enacted to prevent. Accordingly, the Court DENIES
Defendant’s motion for summary adjudication as to Issues 1, 2, and 3 concerning
Defendant’s claim for breach of the governing documents.
The Court notes the same result
would follow even if the Court were to consider Defendant’s motion on its
merits. Taken together, the declarations of Mr. Postnyy and Mr. Ramirez only
provide the requisite factual foundation as to 50 of the 70 citations which
form the basis of Defendant’s claim. As the Court explained in denying
Defendant’s prior motion, Defendant must demonstrate a sufficient factual
foundation as to each of the citations, not just some of them: “While this
admission may suffice to demonstrate Melamed breached the parking rules in the
Governing Documents on that one occasion, it is only sufficient as to that
occasion and not the other 69 notices.” (Order at 7.) As before, Defendant has
failed to carry its initial burden in establishing the breaches alleged in its
Cross-Complaint. The Court cannot grant Defendant summary adjudication as to a
subset of Defendant’s alleged breaches as such a ruling would not dispose of an
entire cause of action. (C.C.P. § 437c(f)(1).) This separately warrants the DENIAL
of Defendant’s motion for summary adjudication of Issues 1, 2, and 3.
2. Request for Accommodation
Plaintiff’s operative Second
Amended Complaint (“SAC”) in consolidated case 18SMCV00086 asserts four
causes of action against Defendant for violation of
the Fair Housing Act, violation of FEHA, violation of the Unruh Civil Rights
Act, and breach of fiduciary duty. Plaintiff alleges he requested parking
accommodations from Defendant following a surgery in September 2018 which left
him temporarily disabled. Plaintiff alleges he requested this accommodation in
correspondence sent to Defendant’s board members dated September 10, 2018,
December 7, 2018, and December 18, 2018. (SAC at ¶¶11-13.) Plaintiff alleges
Defendant did not offer or provide him with the accommodation he requested. (Id.
at ¶15.) This purported failure to accommodate his temporary disability forms
the basis of each of the causes of action asserted against Defendant in the
SAC. (Id. at ¶¶27; 39, 51, 65.)
Plaintiff’s September 2018
correspondence stated, “Just letting you guys know that since my recent surgery
I’m physically handicapped and have 24hr visible handicap placard on my front
windshield since last w[eek].” (UMF No. 34.) Plaintiff’s December 7, 2018,
correspondence stated in pertinent part: “…Also what accommodation does the HOA
make for any one who is physically handicapped. How come there is no handicap
accessible areas in the entire community? You are still giving me citation
w/out making any attempt to accommodate my handicap situation.” (UMF No. 40.) The
correspondence dated December 18, 2018—which Defendant states was actually sent
on January 4, 2019, not December 18, 2018—argued Plaintiff’s prior
correspondence constituted a request for accommodation and included a “formal
request” for accommodation:
However, if
a formal request is what the Association requires, please consider this a
formal request for a reasonable accommodation: Dr. Melamed requests that the
Association permit any vehicle displaying a handicap placard in the windshield
to park in the driveway of 2109 Ridge Drive, Los Angeles, California 90049 (the
“Property”). Dr. Melamed further requests that all
citations issued since September 10, 2018 be withdrawn, since each citation
has been related to vehicles parked in the driveway of the Property that were
displaying a handicap placard at the time of the citation.
(Ex. 12 to Bernardoni Decl. at 2
[emphasis in original].) Defendant contends none of these letters can be deemed
a request for accommodation by Plaintiff.
Neither party provides the Court
with any authority supporting their own position or disproving the
interpretation urged by the other party. Rather, Defendant appears to assert
the first two pieces of correspondence were not a request for accommodation
because they did expressly state Plaintiff was requesting an accommodation which
deviated from the ordinary rules imposed by the governing documents. Plaintiff
asserts the correspondence in question should have been understood to be a
request for accommodation regardless of the express language used. In the
absence of any legal authority on point from which the Court could determine,
as a matter of law, whether the correspondence should be deemed a request for
accommodation for purposes of Plaintiff’s causes of action, this appears to be
a purely factual question to be resolved by the jury.
Indeed, Plaintiff has presented
evidence showing at least one of Defendant’s board members understood or
assumed Plaintiff’s September 2018 correspondence was seeking a parking
accommodation. (Ex. 37 to Lamothe Decl. at 46:3-12.) And Plaintiff has presented
evidence that the property manager for the development understood Plaintiff’s
December 7, 2018, correspondence to be a request for accommodation. (Ex. 39 to
Lamothe Decl. at 48:10-17.) The Court thus finds there is a triable issue of
material fact as to whether Plaintiff requested a parking accommodation from
Defendant for purposes of its causes of action for violation of the Fair
Housing Act (Issue 4), violation of FEHA (Issue 5), violation of the Unruh
Civil Rights Act (Issue 6), and breach of fiduciary duty (Issue 7) asserted in
case 18SMCV00086. Accordingly, Defendant’s motion for summary
adjudication of these issues is DENIED.
As a separate and independent
basis for denying Defendant’s motion, the Court finds Defendant failed to carry
its initial burden in demonstrating the correspondence dated December 18, 2019,
was not a request for accommodation. Defendant argues this letter was not a
request for accommodation because it only requested that Plaintiff be allowed
to park in his driveway. Defendant argues Plaintiff has always been permitted
to park in his driveway and thus Plaintiff’s request did not require any
deviation from the ordinary rules governing where Plaintiff could park. (Motion
at 18-19.) The Court disagrees. The letter dated December 18, 2018, does not
just request an accommodation in where Plaintiff could park moving forward, it
also requested that Defendant withdraw all parking citations issued to
Plaintiff since September 10, 2018. (Ex. 12 to Bernardoni Decl. at 2.)
Defendant offers no evidence or argument as to this part of Plaintiff’s
December 18, 2018, correspondence and thus has not carried its burden in
establishing Plaintiff cannot prevail on its causes of action based on the
relief requested in this letter. The Court DENIES Defendant’s motion for
summary adjudication as to the causes of action asserted by Plaintiff in
consolidated case 18SMCV00086.
Conclusion
Defendant’s motion for summary adjudication is DENIED.