Judge: Joel L. Lofton, Case: 21GDCV00848, Date: 2022-09-06 Tentative Ruling

Case Number: 21GDCV00848    Hearing Date: September 6, 2022    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:      September 6, 2022                              TRIAL DATE:  No date set.

CASE:                         EVA LEUNG-HENGSTEBECK v. KEN HAASE, and DOES 1-10, inclusive.

CROSS:                      KEN HAASE v. EVA LEUNG-HENGSTEBECK

CASE NO.:                 21GDCV00848

MOTION FOR SUMMARY ADJUDICATION

MOVING PARTY:              Defendant Ken Haase

RESPONDING PARTY:     Plaintiff Eva Leung-Hengstebeck

SERVICE:                             Filed April 28, 2022

OPPOSITION:                      Filed August 26, 2022

REPLY:                                  No reply filed.

RELIEF REQUESTED

            Defendant moves for summary adjudication as to each cause of action alleged in Plaintiff’s complaint and for summary adjudication as to the first, third, fourth, and fifth causes of action in his cross-complaint.

BACKGROUND

            This case arises out of Plaintiff Eva Leung-Hengstebeck’s (“Plaintiff”) claim that Defendant Ken Haase (“Defendant”) engaged in unlawful conduct related to Plaintiff’s lease. Plaintiff alleges she was a residential tenant of Defendant at 2395 Roanoke Road, San Marino, California (“Subject Property”) under a lease executed on April 26, 2020.

            Plaintiff alleges the Subject Property had issues with the heating system, the sprinklers, and the pool. Plaintiff also alleges that the windows and doors would not open properly. Plaintiff alleges that the master bedroom had mold and water damage. Plaintiff alleges that Defendant failed to disclose the existence of the issues with the Subject Property prior to leasing the Subejct Property to her. Plaintiff alleges that when she informed Defendant of the defects, Defendant failed to remedy the problems despite stating he would fix the issues.

            Plaintiff also alleges that Defendant falsely promised that Plaintiff would have possession of the entire premises, including the back houses and the garage. Plaintiff alleges that Defendant changed his representation after the lease commenced and asserted that Plaintiff did not have the right to possess the garage and back houses. Plaintiff also alleges that Defendant repeatedly trespassed onto the premises. Plaintiff alleges that Defendant would turn on sprinklers and hoses on the Subject Property to run up Plaintiff’s water bill.

            Plaintiff alleges that Defendant falsely denies receiving Covid-19 rental assistance that Plaintiff applied for. Plaintiff alleges that some of the structures on the subject property were not permitted. Plaintiff alleges that Defendant then took steps to evict her from the Subject Property.

            Plaintiff filed this complaint on June 18, 2021, alleging eleven causes of action for (1) deceit, (2) false promise fraud, (3) constructive eviction, (4) trespass, (5) rescission, (6) nuisance, (7) relocation assistance, (8) invasion of privacy, (9) harassment, (10) forcible detainer, and (11) retaliation.

            Defendant filed a cross-complaint on September 8, 2021, alleging five causes of action for (1) breach of contract, (2) trespass, (3) conversion, (4) trespass to chattels, and (5) negligence.

TENTATIVE RULING

            Defendant’s motion for summary adjudication is denied as to the first, second, fourth, sixth, ninth, tenth, and eleventh causes of action in Plaintiff’s Complaint.

            Defendant’s motion for summary adjudication is denied as to the first, third, fourth, and fifth causes of action in his Cross-Complaint.

            The Court does not rule on Defendant’s motion for summary adjudication as to Plaintiff’s third, fifth, seventh, and eighth causes of action based on Plaintiff’s representation that those causes of action were dismissed.

LEGAL STANDARD

“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.) “A party may move for summary judgement in an action or proceeding if it is contented that the action has no merit or that there is no defense to the action or proceeding.” (Code of Civil Procedure section 473c subd. (a)(1).) “The 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.” (Code of Civil Procedures section 473c subd. (c).)

A three-step analysis is employed in ruling on motions for summary judgment. First, the court identifies the issues framed by the pleadings. Next, the court determines, when the moving party is the defendant, whether it has produced evidence showing one or more of the elements of the cause of action cannot be established or there is a complete defense to that cause of action. If the defendant does so, the burden shifts to the plaintiff to show the existence of a triable issue of material fact as to that cause of action or defense. (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373.) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.”  (Ibid.; see also 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 defendant moving for summary judgment must show that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense. The defendant can satisfy its burden by presenting evidence that negates an element of the cause of action or evidence that the plaintiff does not possess and cannot reasonably expect to obtain evidence needed to establish an essential element. (Veera v. Banana Republic, LLC, (2016) 6 Cal.App.5th 907, 914.)

 “[W]here the plaintiff has also moved for summary judgment—or, as in this case, summary adjudication—that party has the burden of showing there is no defense to a cause of action. (Code Civ. Proc., § 437c, subd. (a).) That burden can be met if the plaintiff “has proved each element of the cause of action entitling the party to judgment on that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) If the plaintiff meets this burden, it is up to the defendant “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.)

DISCUSSION

            A.        SUMMARY JUDGMENT AS TO THE COMPLAINT

            Defendant moves for summary adjudication as to each cause of action in Plaintiff’s complaint. Defendant relies solely on his own declaration to seek to establish his burden. Defendant also asserts that Plaintiff has produced no evidence to support her claims.

            In her opposition, Plaintiff asserts that she has dismissed her third, fifth, seventh, and eighth causes of action but fails to explain when or by what means the causes of actions were dismissed. For the purposes of this motion, the Court will refrain from analyzing Defendant’s motion for summary adjudication as to the causes of action Plaintiff claims she dismissed.

            I.         First Cause of Action for Deceit

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060, citations omitted.)

Plaintiff’s complaint alleges that Defendant made false statements about the condition of the Subject Property and whether the back houses and garage were included in the lease. He claims that he never represented that the back houses and garage were included in the lease. (Haase Decl. ¶ 10.) However, Plaintiff states that Defendant did represent that the garage and back houses were included. (Leung-Hengstebeck Decl. ¶ 4.)

Defendant has failed to meet his initial burden of demonstrating that Plaintiff cannot establish an element for her claim of deceit. Additionally, even if Defendant had met his burden, Plaintiff has raised a triable issue of material fact.

            II.        Second Cause of Action for False Promise Fraud

            Defendant asserts that Plaintiff has failed to establish that he falsely represented Plaintiff would have access to the back houses and garage because it was not expressly contained in the lease. However, that assertion by itself does that establish that Defendant did not represent to Plaintiff that she would have access to the auxiliary structures. Defendant has failed to meet his burden. Defendant’s motion for summary adjudication is denied here.

            III.      Fourth Cause of Action for Trespass

            “The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.)

            In his motion, Defendant only seeks to refute one alleged instance of trespass that occurred on July 14, 2020. He does not, however, address the other allegations of trespass, but instead dismisses them as “unspecified allegations”. Defendant has failed to meet his burden and his motion for summary adjudication is denied as to the fourth cause of action for trespass.

            IV.       Sixth Cause of Action for Nuisance

            “To prevail on an action for private nuisance, a plaintiff must first prove an interference with the plaintiff's use and enjoyment of his or her property. [Citation.] Second, ‘the invasion of the plaintiff's interest in the use and enjoyment of the land [must be] substantial, i.e., that it cause[s] the plaintiff to suffer “substantial actual damage.” ’ [Citation.] Third, ‘ “[t]he interference with the protected interest must not only be substantial, but it must also be unreasonable’ [citation], 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.” ’ ” (Chase v. Wizmann (2021) 71 Cal.App.5th 244, 253.)

            Defendant asserts that he did not cause a nuisance because he fixed all the conditions complained of. However, Defendant does not address Plaintiff’s allegations that Defendant’s trespassed and interfered with her right to enjoy the property. Defendant has failed to meet his burden and his motion for summary adjudication is denied as to the sixth cause of action for nuisance.

            V.        Ninth Cause of Action for Harassment

            Civil Code section 1940.2, subdivision (a)(3), provides that it is unlawful for a landlord to “[u]se, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant’s quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person.”

            Defendant asserts that “Defendant has set forth unrebutted testimony refuting both of these allegations while plaintiff has offered nothing in support.” (Motion at p. 10:22-24.)

            “Summary judgment law in this state, however, continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.)

            Defendant does not point to what evidence purportedly refutes Plaintiff’s claims and simply asserts that Plaintiff lacks evidence. Defendant has failed to meet his burden and his motion for summary adjudication as to the ninth cause of action for harassment is denied.

            VI.       Tenth Cause of Action for Forcible Detainer

            Code of Civil Procedure section 1159 provides: “(a) Every person is guilty of a forcible entry who either: [¶] (1) By breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror enters upon or into any real property. [¶] (2) Who, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession.”

            Defendant simply asserts that Plaintiff cannot establish forcible retainer because the garage was not part of the lease. Defendant has failed to meet his burden of showing that Plaintiff cannot establish that fact and his motion for summary adjudication is denied.

            VII.     Eleventh Cause of Action for Retaliation

            Defendant asserts that Plaintiff has produced no evidence to support her claims that Defendant’s notices to quit and other actions support a cause of action for retaliation. However, Defendant fails to point to what evidence he is referring to and fails to address many of the allegations stated in Plaintiff’s complaint. Defendant’s motion for summary adjudication as to the eleventh cause of action is denied.

            B.        SUMMARY ADJUDICATION AS TO DEFENDANT’S CROSS-COMPLAINT

            I.         First Cause of Action for Breach of Contract

The essential elements of a breach of contract are: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damages to the plaintiff. (Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th. 425, 433.)

Defendant asserts that the parties entered into a lease for the Subject Property. (Haase Decl. ¶ 5.) He argues that he performed under the contract. He asserts that Plaintiff breached by failing to pay rent after May 1, 2021. (Id. ¶ 26.) He estimates damages at $75,000. (Id. ¶ 22.)

Defendant has failed to establish a measure of damages to satisfy his burden of establishing each element. Defendant here simply makes an estimation based on purported damages to the property without establishing that the damages existed and is properly valued at $75,000. Defendant’s motion for summary adjudication as to his first cause of action is denied.

            II.        Third Cause of Action for Conversion

“ ‘Conversion is generally described as the wrongful exercise of dominion over the personal property of another. [Citation.] The basic elements of the tort are (1) the plaintiff's ownership or right to possession of personal property; (2) the defendant's disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages. [Citation.]’ [Citation.] ‘Conversion is a strict liability tort. The foundation of the action rests neither in the knowledge nor the intent of the defendant. Instead, the tort consists in the breach of an absolute duty; the act of conversion itself is tortious. Therefore, questions of the defendant's good faith, lack of knowledge, and motive are ordinarily immaterial.’ ” (Regent Alliance Ltd. v. Rabizadeh (2014) 231 Cal.App.4th 1177, 1181.)

To support his claim for conversion, Defendant states: “While she lived there, Leung caused damage to some of my personal property located at  the Premises, including but not limited to furniture, business records, cameras, computer equipment, and monitors, in amount according to proof and/or estimated at $10,000.” (Haase Decl. ¶ 23.) However, Plaintiff asserts that she has “never taken, stolen or damaged any personal property belonging to Haase.” (Leung-Hengtebeck Decl. ¶ 39.)

A triable issue of material fact exists and Defendant’s motion for summary adjudication as to his third cause of action is denied.

            III.      Fourth Cause of Action for Trespass to Chattels

            “[T]he tort of trespass to chattels allows recovery for interferences with possession of personal property ‘not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered.’ ” (Jamgotchian v. Slender (2009) 170 Cal.App.4th 1384, 1400-1401.)

            For his fourth cause of action, Defendant merely repeats his same statement regarding his claim for conversion. Therefore, there exists a similar issue of material fact and Defendant’s motion for summary adjudication as to his trespass to chattels claim is denied.

            IV.       Fifth Cause of Action for Negligence

“The elements of a cause of action for negligence are duty, breach, causation, and damages.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.)

            Here, Defendant declares that Plaintiff cause damages to the lawn sprinklers and pool estimated at $75,000. (Haase Decl. ¶ 22.) Defendant’s flippant assertions and estimations are insufficient to carry his burden and his motion for summary adjudication is denied as to his fifth cause of action for negligence.

CONCLUSION

            Defendant’s motion for summary adjudication is denied as to the first, second, fourth, sixth, ninth, tenth, and eleventh causes of action in Plaintiff’s Complaint.

            Defendant’s motion for summary adjudication is denied as to the first, third, fourth, and fifth causes of action in his Cross-Complaint.

            The Court does not rule on Defendant’s motion for summary adjudication as to Plaintiff’s third, fifth, seventh, and eighth causes of action based on Plaintiff’s representation that those causes of action were dismissed.

Dated:   September 6, 2022                            ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit.  Parties intending to appear are strongly encouraged to appear remotely.  alhdeptx@lacourt.org