Judge: Jon R. Takasugi, Case: 21STCV29722, Date: 2023-04-20 Tentative Ruling

Case Number: 21STCV29722    Hearing Date: April 20, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motion for summary judgment is GRANTED.

On 8/12/2021, Plaintiff Courtney and Brian Gregory (collectively, Plaintiffs) filed suit against One Thousand Grand Avenue Holdings, LLC (Defendant). On 8/10/2022, Plaintiff filed a second amended complaint (FAC) alleging: (1) negligence; (2) negligent infliction of emotional distress; (3) breach of contract; (4) malicious prosecution; (5) breach of implied warranty of habitability; (6) intentional infliction of emotional distress; and (7) negligent misrepresentation.

Now, Defendant moves for summary judgment of Plaintiff’s SAC.

Evidentiary Objections

CCP section 437c, subdivision (q) provides:

In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.

            In light of CCP section 437c, subdivision (q), the Court declines to rule on any of the submitted objections.

Discussion

            As a preliminary matter, CRC rule 3.113 is clear that no opening or responding memorandum in a motion for summary judgment or summary adjudication may exceed 20 pages. Plaintiff’s 22-page motion exceeds that limit. While it would be within the Court’s discretion to disregard the excess portion of the Opposition, the Court has considered Plaintiff’s full opposition to avoid the risk of any prejudice in light of the ruling.

1.      Negligence

The elements of a cause of action for negligence 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.) As applicable here, a landlord owes a tenant a duty of reasonable care in providing and maintaining the rented premises in a safe condition. (Civil Code §1714(a); Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1189.) This means a landlord in caring for the property, must act toward the tenant as a reasonable person under all of the circumstances. (Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 779.)

Defendant argues that Plaintiffs cannot establish this cause of action because it acted “timely and reasonably in offering to eradicate the pest and noise issues in Plaintiffs' unit after being put on notice of the existence of roaches and sounds in their apartment.” (MSJ Motion, 19: 19-21.) Defendant also argues that Plaintiffs cannot show a violation of Civil Code section 1942.4.

In support, Defendant submitted evidence that:

-          During this time, Defendant has owned and operated an apartment building located at 1000 S. Grand Avenue, Los Angeles, California 90015 (subject property or subject apartment). (SS ¶ 2.)

-          At all relevant times, Defendant had in place policies and procedures with respect to the prevention of, and elimination of, pests at the subject property, including inclusion of a “Pest Control” term in leases. (SS ¶ 3.)

-          During the entirety of Plaintiffs' tenancy, Defendant utilized the services of an extermination company, Zaver Pest Control (Zaver), to provide regularly scheduled pest control services to the Subject Property. (SS ¶ 4.)

-          As part of Defendant’s company policy, Zaver would conduct a pre-move-in inspection of each apartment unit for pests. (SS ¶ 5.)

-          Zaver also inspected the common areas of the Subject Property on a twice a month basis.  (SS  ¶ 6.)

-          In addition, Zaver treated the Subject Property with pesticides on a twice a month basis. (SS  ¶ 7.)

-          On May 11, 2020, Defendant entered into a lease agreement with Plaintiffs whereby Plaintiffs would lease Apartment No. 520 (Unit 520) at the subject property with a monthly base rent of $2,035.00 and a parking fee of $100.00 per month with a termination date of June 3, 2021 (Lease Agreement). (SS ¶ 14.)

-          The lease agreement included provisions which expressly stated that Plainitff had inspected the Apartment, and was unaware of any pests, that Plaintiff had received a written notice concerning the use of pesticide, and that provided “You agree to maintain the Apartment and Common Areas in a manner that prevents the occurrence of an infestation of Pests, including bedbugs. If you allow individuals or items carrying bedbugs into the Apartment or Community or have infestations that cannot be traced to another source, you understand and agree that you will be responsible for the cost of treatment to the Apartment, personal belongings and surrounding apartments and Common Areas as necessary to eradicate the infestation.” (SS  ¶ 15.) Plaintiffs also signed the provision stating that they would cooperate with pest control efforts. (Ibid.)

-          The Lease Agreement also contained a provision expressly stated that security was not provided as part of the lease, and that a quiet apartment was not guaranteed: “44. NOISE, DISTURBANCE. . . . We use good faith efforts to control noise in the Community but we do not guarantee you a quiet Apartment.” (SS  ¶ 17.)

-          Defendant never promised Plaintiffs, orally or in writing, it would provide them any level of security at the Subject Property when they entered the Lease. (SS ¶ 19.)

-          On or around September 29, 2020, Plaintiffs advised Defendant for the very first time of the existence of roaches in their apartment, Unit 520. (SS ¶ 20.)

-          On or around that date, Defendant called Plaintiffs, leaving a voice message to attempt to schedule treatment in their Unit 520 for September 30, 2020. (SS ¶ 21.)

-          On October 1, 2020, Plaintiffs cancelled the appointment to exterminate the roaches in their apartment unit. (SS ¶ 22.)

-          Later that day, Plaintiff Brian Gregory sent e-mail correspondence to Defendant, reiterating pest and noise issues in Unit 520 despite having canceled the appointment for roach treatment earlier that day. (SS ¶ 23.)

-          On or about October 6, 2020, Plaintiffs’ spoke with Defendant’s property manager, Christine Meholic, regarding their pest control and noise concerns at the subject property. On October 7, 2020, Ms. Meholic memorialized their conversation in an email to Plaintiffs, whereby she provided a number of solutions to Plaintiffs’ complaints. As to the pest concerns, she offered to remediate the minor issues at Unit 520 by retaining Zaver Pest Control to exterminate the roaches in their unit. Zaver provided Plaintiffs with two treatment options: bait treatment gel that would be placed in certain areas in Unit 520, and a minimally invasive organic spray treatment that would allow Plaintiffs to return to their unit 4 hours after its application. As to Plaintiffs’ noise complaint, Ms. Meholic’s October 7th email also explained the noise may be emanating from the trash room located next to their Unit he email further advised Plaintiffs that should the noise be coming from a specific apartment unit in the building, Defendant would intervene with those residents, even offering to transfer Plaintiffs to a unit on a different floor of the building. (SS ¶¶ 24-29.)

-          On October 8, 2020, Plaintiffs responded to her email, rejecting each and every option Ms. Meholic provided to remedy both the pest and noise issues. Soon thereafter, Plaintiffs requested to speak with Ms. Meholic in person and/or by telephone at various points in October 2020, including October 19, 22, and 27, 2020. However, Plaintiffs failed to call or speak with her in person on each of those dates. (SS ¶¶ 30-32.)

-          Between September 30, 2020 and December 2020, Defendant attempted to schedule numerous appointments with Plaintiffs for Zaver to provide pest treatment at Unit 520. Each time, Plaintiffs barred Zaver from accessing their apartment unit. (SS ¶¶ 33-34.)

-          On December 14, 2020, Plaintiffs emailed Defendant’s employees, reiterating the same habitability concerns as before, with the addition of complaints of (dog) feces in the garage and door tampering. On December 16, 2020, Ms. Meholic responded to Plaintiffs email, explaining its hands were tied as Plaintiffs previously rejected Defendant’s numerous attempts to remedy these issues. (SS ¶¶ 35-36.)

-          On June 4, 2021, L.A. County Department of Public Health inspected the subject property to assess any potential health code violations. The inspection revealed two roaches in Unit 520, for which the health inspector held Plaintiffs, not Defendant, accountable. The inspection report also noted the existence of “dog droppings” in the parking garage of the subject property. (SS ¶¶ 37-39.)

-          On June 23, 2021, the public health department performed a follow-up inspection of the subject property, noting the dog droppings had been abated and reported no roaches anywhere. (SS ¶ 40.)

-          Prior to the commencement of the Lease, Defendant was unaware of any prior similar uninhabitable conditions. Nobody, including Plaintiffs or other tenants, ever notified Defendant of uninhabitable conditions at the subject property prior to the Lease, including in Unit 520. Prior to the Lease, no government agency had ever notified Defendant of or cited it for any health code violations at the subject property. (SS ¶¶ 41-43.)

Taken together, Defendant’s evidence supports a reasonable inference that it made timely and reasonable efforts to provide and maintain the subject property in a safe condition. (Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 779.)

Moreover, to the extent Plaintiff’s negligence claim is based on Civil Code section 1942.4, that provision provides that a landlord may not demand rent, collect rent, issue a notice of a rent increase, or issue a three-day notice to pay rent or quit if all of the following conditions exist prior to the landlord's demand or notice:

1.      The dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling.

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.

4.      The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2.

Defendant’s evidence supports a reasonable inference that these conditions were not all met here. Accordingly, the burden shifts to Plaintiffs to disclose a triable issue of material fact.

Plaintiffs’ opposition fails to raise a triable issue of material fact. Plaintiff’s opposition advances contentions that: (1) Defendant received work orders from tenants in other units complaining of uninhabitable conditions; (2) Defendant marketed the apartments as “luxury” apartments in order to induce Plaintiffs to enter into the lease agreement and increase their profits; (3) the company Defendant attempted to have fumigate Plaintiff’s unit was not authorized to do so by the California Structural Pest Control Board; (4) after several requests to terminate the Lease Agreement and complaints to members of Defendant’s executive team about uninhabitable conditions, the offer of settlement was refused, followed with demands for more monies from Plaintiffs to move to another unit. Defendant then evicted Plaintiffs at a time when evictions were barred by the COVID-19 Tenant Relief Act; (5) Plaintiffs remitted payments totaling more than $10,000.00 equating to more than 40 percent of the entire Lease Agreement value by September 2020, and provided Defendant with the proper COVID-19 relief forms on March 9, 2021; and (6) Defendant made defamatory remarks and “misrepresented to a leasing agent conducting a background check, that Gregory was evicted at a time when any and all judgments against them were vacated and eviction case had been dismissed.” (Opp., 10:5-9.)

However, as to the first contention, the fact that other tenants advanced complaints does not establish that Plaintiffs’ unit was inhabitable. As noted by Defendant in reply, “Plaintiffs can present no evidence to demonstrate the existence of pests in the common areas of the subject building under the control of the landlord Defendant. (See Defendant’s Memorandum, p. 9:19-22.) The only evidence Plaintiffs could muster pertain to work orders requesting assistance with eradicating alleged pests in individual units, a vast majority of which transpired after Plaintiffs’ moved out of the property and which are thus completely irrelevant.” (Reply, 5: 22-26, original emphasis.)  As such, the complaints submitted by Plaintiffs do not support a reasonable inference that Defendant’s policies and practices for pest management were ineffective. For example, one of the work orders requests treatment for silverfish, and one was for toilet maintenance. While there are requests for pest treatment, the work orders indicate that the unit was subsequently fumigated. There is nothing to indicate that the fumigation treatment was ineffective, or that those tenants had to repeatedly re-request pest treatment at their unit. More importantly, Plaintiffs do not submit any evidence to refute Defendant’s evidence that Plaintiffs refused access to their unit, or to show that their own unit was uninhabitable at the time of occupancy, or that any complaints were lodged by prior or subsequent tenants from the subject unit. 

As to Plaintiffs’ second contention, it is unclear what relevance this evidence holds for this cause of action. Whether or not Plaintiffs’ were induced to lease the apartment based on Defendant’s representation of the unit as “luxury” is not determinative as to this cause of action, and has no bearing on whether or not Defendant, in fact, acted negligently with respect to its duty to keep the unit in a habitable condition.   

As to Plaintiffs’ third contention, Plaintiffs submitted evidence that Zaver had its powers, rights and privileges suspended by the California Franchise Tax Board as of September 14, 2021. Plaintiffs also argue that Zaver was unlicensed to fumigate the Subject Premises. However, as to the former contention, the conduct in question in the action took place between October 2020 and June 2021, before this suspension took place. As such, there is no evidence to suggest Zaver was suspended at the time Defendant was attempting to coordinate their treatment of Plaintiffs’ unit. As to the latter contention, the Court could not identify any evidence within Plaintiffs’ opposition to corroborate their claim that Zaver was unlicensed to fumigate the subject premises at the time of treatment. In response to Defendant’s Separate Statement, Plaintiffs identified their own declarations, a letter indicating Zaver’s September 2021 suspension, and a licensing details page for Zaver. However, nothing in these documents indicate Zaver was not licensed to fumigate Plaintiffs’ apartment. Moreover, even assuming arguendo that Zaver wasn’t licensed to fumigate, Plaintiffs have still not submitted any evidence to establish that the unit was actually uninhabitable.

As for the fourth and fifth contentions, Defendant is not pursuing a wrongful eviction claim and whether or not another Court granted Defendant a legal eviction of Plaintiff is not an issue before this Court. Rather, Plaintiffs burden here is to introduce admissible evidence which could show that their unit was in an uninhabitable condition and that Defendant failed to take reasonable steps to remedy that condition.

Finally, as for the sixth contention, Plaintiff is not pursuing a defamation cause of action. Accordingly, whether or not Defendant’s employees made defamatory remarks is not relevant to this cause of action.

2.      Negligent Infliction of Emotional Distress (NIED)

Negligent infliction of emotional distress is not an independent tort; it is merely convenient terminology descriptive of the context in which the negligence occurred. (Long v. PKS, Inc. (1993) 12 Cal.App.4th 1293, 1297.) Damages for severe emotional distress are recoverable in a negligence action when they result from the breach of a duty owed to the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two. (Ibid.) If a cause of action is otherwise established, it is settled that damages are given for mental suffering naturally ensuing from the complained of acts. (Ibid.)

In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness. (Thing v. La Chusa (1989) 48 Cal.3d 644, 647.)

Defendant argues that Plaintiffs cannot establish this cause of action because Plaintiffs did not suffer any physical injuries themselves, and  there is no allegation that Plaintiffs suffered emotional distress because they witnessed injury to a closely-related victim. Moreover, to the extent Plaintiff argues financial or contractual injury, “damages for mental suffering and emotional distress are generally not recoverable in an action for breach of an ordinary commercial contract in California." (Erlich v. Menzes (1999) 21 Cal.4th 543, 552.)

Defendant’s evidence supports a reasonable inference that Plaintiff cannot show NIED. Accordingly, the burden shifts to Plaintiffs to disclose a triable issue of material fact.

In opposition, Plaintiffs did not submit any evidence to show that they suffered physical injuries or that emotional distress by witnessing injury to a closely-related victim. Indeed, as noted by Defendant in reply, Plaintiffs failed to address Defendant’s key contentions with respect to this claim. 

3.      Breach of Contract

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

Defendant argues that Plaintiffs cannot establish this claim because Plaintiffs cannot show a breach of contract. More specifically, Defendant submitted evidence that:

While Plaintiffs have demonstrated the existence of a contract, the Lease Agreement, Plaintiffs can demonstrate no breach of the contract. To the contrary, it is Plaintiffs, not Defendant, who breached Section Q.6.3.5 of the Lease by refusing to allow Defendant to provide pest control treatment to their unit. (SSUF 56) Plaintiffs also breached the Lease by failing to pay rent for over 9 months of the 1 year lease without justification. (SSUF 59) In fact, Plaintiffs judicially admit they only paid the first 3 months of rent owed under the Lease. (See Lease Agreement, ¶ 4; SAC ¶ 16.)

(MSJ Motion, 18: 13-18.)

Moreover, the Lease Agreement provided:

4. YOUR BREACH OR DEFAULT; EVICTION. You and we agree that your performance of and compliance with each of the terms of the Lease constitutes a covenant and condition on your right to occupy the Apartment, and that if you fail to comply with or perform any term of the Lease, we may forfeit the Lease and terminate your right to possession by any lawful means as well as exercise any and all rights and remedies allowed by the Lease or at law.

(SS ¶ 18.)

Defendant’s evidence supports a reasonable inference that Plaintiffs breached the agreement when they only paid the first three months of rent owed under the Lease, failed to pay rent for over nine months of the one-year lease, and then remained in possession of the unit after defaulting on rent. Accordingly, the burden shifts to Plaintiff to disclose a triable issue of material fact.

Plaintiffs argue that triable issues exist regarding the effectiveness of Defendant’s pest control policies and practices. However, as set forth above, Plaintiffs’ submission of various work orders from unrelated tenants for different units does not support an inference that Defendant’s policies were ineffective. More importantly, Plaintiffs did not submit any evidence to show that their unit was uninhabitable or to show that, contrary to Defendant’s contention, they did not refuse the pest control services offered by Defendant. Moreover, Plaintiffs did not submit any evidence to refute the LA County Department of Public Health’s assessment showing that the only conditions observed at the 6/5/2021 visit were two roaches in the unit and dog droppings in the parking garage, and that both conditions were remedied by the 6/23/2021 visit.

4.      Malicious Prosecution

Defendant argues that Plaintiff’s claim for malicious prosecution is barred by the litigation privilege.

The Court agrees. Here, Plaintiffs' claim is premised on Defendant's service of the 15-Day Notice to effect the eviction. The litigation privilege bars claims based on a landlord's good faith service of an eviction notice and/or the filing of an unlawful detainer action. (Action Apartment v. City of Santa Monica (2007) 41 Cal. 4th 1232, 1243-1252.) Tellingly, Plaintiffs’ do not address this argument in opposition. 

5.      Breach of Implied Warranty of Habitability

Defendant argues that Plaintiffs cannot establish this claim because the undisputed material facts establish (1) the limited amount of time that the limited conditions existed in Plaintiffs’ unit and apartment did not constitute "a material defective condition affecting the premises' habitability"; and (2) Defendant effectively responded to Plaintiffs’ complaints and took action within a reasonable time after being put on notice of the allegedly uninhabitable conditions.

In support, Defendant points to evidence, set forth above, that:

-          Defendant first was put on notice of the various habitability conditions, including pest concerns in Unit 520 and loud noise in the Subject Property (and, specifically, not in Plaintiffs' unit) in October 2020, months after Plaintiffs moved into the property in May 2020. (SS ¶¶ 23, 64, 115, 156, 200.)

-          The pests issue of which Plaintiffs complained to Defendant in their October 2020 correspondence involving Unit 520 (mainly, the 2-roach “infestation”) did not extend to any common area of the Subject Property, i.e., areas "under the control of Defendant.” Instead, Plaintiffs complained of “infestations” that emanated from within their own unit as set forth above. (SS ¶¶ 23, 64, 115, 156, 200.)

-          The limited amount of time that the limited number of roaches existed in Plaintiffs' unit did not substantially affect the premises' habitability, whether based on a statute or otherwise. Plaintiffs never complained of any pests in their unit until October 2020. ((SS ¶¶  23, 64, 115, 156, 200.) When Defendant offered to remediate these minor issues within approximately 6 days after Plaintiffs notified Defendant, Plaintiffs rejected any assistance from Defendant. (SS ¶¶  25, 66, 117, 158, 202.) Had Plaintiffs accepted Defendant’s offer to treat their apartment with a safe organic spray, Plaintiffs would only have been required to vacate their unit for approximately four hours on the days of treatment. Despite refusing to accept Defendant’s assistance, the alleged pest problem was deemed eradicated by the Los Angeles Department of Public Health in June 2021. (SS ¶¶ 40, 81, 132, 173, 217.)

-          Plaintiffs first informed Defendant's property manager of the existence of roaches in their unit on October 1, 2020 by e-mail. In response, Defendant provided Plaintiffs with two treatment options that Zaver offered in the form of either a bait gel or an organic spray. (SS ¶¶ 27, 68, 119, 160, 204) Plaintiffs rejected both options, even declining Zaver access to their Unit when it attempted to begin treatment. (SS ¶¶ 30, 71, 122, 163, 207)

Taken together, Defendant’s evidence supports a reasonable inference that it did not breach the warranty of habitability with respect to pest control issues. Defendant’s evidence also supports a reasonable inference that it did not breach the warranty of habitability as it concerns criminal activity.

Traditionally, a landlord had no duty to protect his tenants from the criminal acts of others, but an innkeeper was under a duty to protect his guests. (Totten v. More Oakland Residential Housing, Inc. (1976) 63 Cal.App.3d 538, 543.) But in recent years, the landlord-tenant relationship, at least in the urban, residential context, has given rise to liability under circumstances where landlords have failed to take reasonable steps to protect tenants from criminal activity. (O'Hara v. Western Seven Trees Corp. (1977)  75 Cal. App. 3d 798, 802.) However, liability does not make the landlord an insurer of the tenants' safety; the duty is merely to exercise reasonable care. (Totten, supra, at 542.)

 The key to assessing a landlord’s liability for third party criminal conduct lies in its foreseeability. To establish a landlord's duty for criminal activity, "breach of the implied warranty of habitability necessarily depends … upon a finding of foreseeability." (Pamela W v. Millsom (1994) 5 Cal.App.4th 950, 954, fn. 1.) Summary judgment was granted in Pamela W because the rape was unforeseeable and the landlord could not have clearly prevented it. (Id. at p. 959-960.)

Here, Defendant’s evidence supports a reasonable inference that the alleged hacking or phishing of the computers in the apartment’s common area and alleged tampering of door locks was unforeseeable criminal activity. Defendant had an established policy of reporting any potential hacking or phishing of computers in the apartment to the company’s I.T. Department for investigation. (SS ¶¶ 9, 50, 101, 142, 186) Further, at all times, security cameras were in effect throughout the subject property, and a security company provided on-site security on a daily basis. (SS ¶¶ 13, 54, 105, 146, 190).

As such, the burden shifts to Plaintiffs to disclose a triable issue of material fact. 

For the reasons set forth above, Plaintiffs have failed to disclose a triable issue of material fact as to this cause of action.

6.      Intentional Infliction of Emotional Distress

To establish their claims for intentional infliction of emotional distress, Plaintiffs must show: (1) that Defendant's conduct was extreme and outrageous; (2) that Defendant intended to cause Plaintiffs emotional distress or acted with reckless disregard of the possibility that Plaintiffs would suffer emotional distress; (3) that Plaintiffs suffered severe or extreme emotional distress; and (4) that Defendant's conduct was a substantial factor in causing Plaintiffs' severe emotional distress. (CACI 1600; Christensen v. Superior Court (1991) 54 Ca1.3d 868, 903.)

Here, as set forth above, Defendant’s evidence supports a reasonable inference that it did not act negligently, did not breach a contractual obligation, and did not breach the warranty of habitability. Defendant’s evidence also supports a reasonable inference that it acted in a timely and reasonable fashion, and that it did not intentionally act to cause Plaintiffs emotional distress. Accordingly, the burden shifts to Plaintiffs to disclose a triable issue of material fact.

As set forth above, Plaintiffs failed to disclose a triable issue of material fact as to their habitability claims. Plaintiffs also failed to submit evidence which could show Defendant intentionally inflicted emotional distress on Plaintiffs.  

7.      Negligent Misrepresentation

The elements of a negligent misrepresentation cause of action are: "(1) a misrepresentation of a past or existing material fact; (2) without reasonable grounds for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages." (Fox v. Pollack (1986) 181 Cal.App.3d 954, 962.)

Defendant argues Plaintiffs cannot state a claim for negligent misrepresentation because “There is no actionable misrepresentation here, and no knowledge of falsity or intent to mislead, because the alleged misrepresentation pertained to an event that had not yet occurred.” (MSJ Motion, 23: 27-28.)

As set forth above, Defendant’s evidence supports a reasonable inference that it acted in a reasonable manner, and did not misrepresent the condition of the apartment, or its policy for responding to those conditions. Accordingly, the burden shifts to Plaintiffs to disclose a triable issue of material fact.

In opposition, Plaintiffs argue that Defendant misrepresented that the apartment was a “luxury” apartment in order to induce Plaintiffs to enter the lease. However, as set forth above, Plaintiffs have not disclosed a triable issue of material fact as to any of the habitability claims. As such, Plaintiffs have not submitted evidence which could show that they were damaged as a result of this representation. Moreover, Plaintiffs’ lease included a provision indicating that they had performed a pre-inspection of the unit. As such, Plaintiffs have not submitted evidence which could show that the use of the word “luxury” prevented them understanding the true condition of the unit, or that they would not have leased the apartment unit but for Defendant’s reference to the unit as luxury.

            Based on the foregoing, Defendant’s motion for summary judgment is granted.

It is so ordered.

Dated:  April    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.