Judge Kerry Bensinger, Case Number: 21STCV14981, Date: 2023-05-11 Tentative Ruling

On April 20, 2021, Plaintiff Tyrone Swain filed this action against defendants Essex Property Trust, Inc. (“Essex”) and Platinum Security (“Platinum”) for (1) Constructive Eviction, (2) Assault, (3) Intentional Infliction of Emotional Distress, (4) Negligent Hiring, Retention, and Training, and (5) Negligence. On October 15, 2021, Plaintiff designated defendant Ashley Evette Easley (“Easley”) as Doe 1. Plaintiff asserts the First, Second, Third, and Fifth Causes of Action only against Easley.

On February 9, 2023, Easley (hereinafter, “Defendant”) filed this motion for summary judgment, or in the alternative, summary adjudication. Plaintiff opposes and Defendant replies.

Defendant worked for Platinum Security as a security guard at the apartment complex where Plaintiff lived. (Undisputed Material Fact (“UMF”) UMF No. 2.) On June 16, 2020, she received numerous noise complaints concerning the Plaintiff. She responded to the reports and contacted Plaintiff both in-person and on the telephone. During those conversations, Plaintiff threatened to kill her. (PSUMF 15.)

Later that same day, June 16, 2020, Plaintiff and his girlfriend, Rachael Proby, went to a 7-Eleven located near the apartment complex. (No. 1.) Plaintiff stayed in the passenger seat while Ms. Proby went inside the 7-Eleven. (Plaintiff’s Statement of Undisputed Fact (“PSUMF”) No. 25.)

While Plaintiff was sitting in the vehicle, Defendant and her boyfriend, Mr. Young, pulled up and parked next to him. (PUMF No. 26.) Plaintiff saw Defendant point him out to Mr. Young. Moments thereafter, Mr. Young got out of the vehicle and approached Plaintiff, who was still sitting in the car. (PSUMF No. 32.) Defendant went into the 7-Eleven.

Mr. Young pulled out a firearm and told Plaintiff “to get the f*** out of the car.” (PUMF No. 34.) Afraid, Plaintiff exited the vehicle. (PSUMF No. 36.) Plaintiff went inside the 7-Eleven. Defendant was not present for the interaction between Plaintiff and Mr. Young in the parking lot. (UMF No. 4.)

Inside the 7-Eleven, Defendant and Plaintiff had a conversation. Plaintiff told Defendant that her boyfriend had just threatened his life with a gun because Plaintiff had somehow disrespected Defendant. (PSUMF No. 41.) Defendant responded aggressively that when she called Plaintiff’s residence, he told Defendant to mind her own business and hung up the phone. (PSUMF No. 42.) Plaintiff asked Defendant if that warrants a gun being pointed at him and his life being threatened. (PSUMF No. 43.) Defendant shrugged in response. (PSUMF No. 44.) During this conversation, Defendant did not make any threats to Plaintiff, never drew a gun on Plaintiff, and never touched Plaintiff in any way. (UMF Nos. 5-7.) Plaintiff never saw Defendant with a holster, gun, nightstick, or pepper spray. (UMF No. 8.) However, during the conversation, Mr. Young continued to keep his hand on his gun in the Defendant’s presence. (PSUMF No. 45.) As Plaintiff left the 7-Eleven, Mr. Young continued to make threats in the presence of Defendant. (PSUMF No. 46.)

When Defendant applied to be a security guard with Platinum Security, Plaintiff provided an alternative phone number of (323) 598-4613 and listed Mr. Young as her spouse. (PSUMF Nos. 5, 6.) On June 18, 2020, after the incident at the 7-Eleven, Plaintiff received several phone calls from Mr. Young in which he explicitly threatened Plaintiff. (PSUMF No. 51.) Both calls to Plaintiff came from Defendant’s “alternate” phone number of (323) 598-4613. (PSUMF No. 52.)

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia 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.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “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.)

Defendant objects to Exhibits C-K of Plaintiff’s Compendium of Evidence for lack of foundation/authentication. The objections are OVERRRULED. (See Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 948-949 (noting that inadmissible evidence may be considered in ruling on a summary judgment motion if the defects can be cured at trial.)

Defendant objects to Paragraphs 13, 14, and 15 of the Declaration Greg Kirakosian, Esq. for lack of relevance and foundation. The objections are OVERRULED.

As framed by the Complaint, at all times relevant to the Complaint, Plaintiff lived at the Alessio Apartments (“Alessio”) with his daughter and girlfriend. Defendant was a security guard at Alessio and was employed by Essex and Platinum. On June 16, 2020, Plaintiff was at the 7-Eleven convenience store near Alessio at the same time as Defendant and her boyfriend, Mr. Young. Defendant’s boyfriend threatened him with a gun for previously disrespecting the Defendant. Plaintiff inquired as to how he had disrespected Defendant. Mr. Young responded that Defendant had called Plaintiff’s residence a while ago about noise complaints, and Plaintiff responded by telling Defendant to mind her own business and hanging up the phone. Plaintiff later complained to Essex and Platinum about the incident at the 7-Eleven with Defendant. Plaintiff also began receiving harassing and threatening phone calls from Defendant and her boyfriend, which forced Plaintiff to move out of Alessio out of fear for his and his families’ safety.

Defendant moves for summary judgment/summary adjudication because Plaintiff cannot establish at least one of the necessary elements of each cause of action asserted against Defendant.

“Civil Code section 1940.2 makes it unlawful for a landlord to commit certain specified acts ‘for the purpose of influencing a tenant to vacate a dwelling.’ (Civ. Code, § 1940.2, subd. (a).) The purpose of Civil Code section 1940.2 is to prohibit a landlord’s use of ‘constructive’ self-help eviction” techniques [citation] such as theft, extortion, interference with a tenant’s quiet enjoyment, or trespass ‘for the purpose of influencing a tenant to vacate a dwelling.’” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1300-1301, citing Civ. Code, § 1940.2, subd. (a).) (Emphasis added.) “It is an established rule that any disturbance of a tenant’s possession by a landlord or by someone acting under his authority, whereby the premises are rendered unfit for occupancy for the purposes for which they are demised, or the tenant is deprived of the beneficial enjoyment of the premises, amounts to a constructive eviction if the tenant so elects and surrenders his possession.” (Pierce v. Nash (1954) 126 Cal.App.2d 606, 617.)

Defendant argues that the First Cause of Action for Constructive Eviction fails as asserted against Defendant because Plaintiff cannot prove that Defendant was the landlord of the Alessio Apartments. The Court agrees. The evidence submitted here establishes that Defendant was employed by Platinum to provide security guard services at the Alessio Apartments. (UMF No. 2.)

Plaintiff cites several cases for the proposition that the perpetrator need not be the landlord personally to establish a claim for constructive conviction. (See Opposition, 12:12-24.) Plaintiff correctly states the proposition but overlooks that, if proven, the landlord would be liable for constructive eviction. Plaintiff does not address how Defendant is personally liable for constructive eviction.

Based on the foregoing, Defendant is entitled to summary adjudication as to the First Cause of Action for Constructive Eviction.

Plaintiff’s Second Cause of Action for Assault, Third Cause of Action for Intentional Infliction of Emotional Distress, and Fifth Cause of Action for Negligence all hinge on Plaintiff’s theory of vicarious liability. Plaintiff argues Defendant is vicariously liable as a joint tortfeasor. Vicarious liability as a joint tortfeasor, in turn, rests upon Plaintiff’s conspiracy and/or aiding and abetting theory of the case.

The elements of conspiracy are (1) that the defendant was aware that the coconspirator planned to do a wrongful act; and (2) that the defendant agreed with the coconspirator and intended that the wrongful act be committed. Mere knowledge of a wrongful act without cooperation or an agreement to cooperate is insufficient to make the defendant responsible for

the harm. A conspiracy may be inferred from circumstances, including the nature of the acts done, the relationships between the parties, and the interests of the alleged coconspirators. (CACI No. 3600.)

“Conspiracy is not a separate tort, but a form of vicarious liability by which one defendant can be held liable for the acts of another. . . . A conspiracy requires evidence ‘that each member of the conspiracy acted in concert and came to a mutual understanding to accomplish a common and unlawful plan, and that one or more of them committed an overt act to further it.’ (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 652; CACI No. 3600.) “By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. [Citation omitted]. In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510–511.)

Defendant addresses Plaintiff’s conspiracy theory in reply. She contends Plaintiff does not have direct evidence of an agreement between Mr. Young and Defendant to assault on June 16, 2023 or to harass Plaintiff thereafter sufficient to establish a conspiracy. Plaintiff concedes as much, but argues the circumstantial evidence is sufficient to raise a triable issue of material fact.

It is undisputed Defendant did not expressly threaten or assault Plaintiff in the 7-Eleven parking lot or engage directly in the subsequent conduct. (See UMF Nos. 4-7.) Mr. Young committed the overt act of brandishing a gun and threatening Plaintiff with harm and placed the subsequent calls. (PSUMF Nos. 33, 41.) The burden shifts to Plaintiff.

Plaintiff’s evidence is sufficient to demonstrate “a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” A reasonable jury could infer from the evidence presented that (1) the Defendant and Mr. Young conspired (reached an agreement to) assault and harass Plaintiff, and (2) Mr. Young committed an overt act in furtherance of that agreement. “The requisite concurrence and knowledge may be inferred from the nature of the acts done, the relation of the parties, the interests of the alleged conspirators, and other circumstances. [Citation.] Tacit consent as well as express approval will suffice to hold a person liable as a coconspirator. (Wyatt v. Union Mortg. Co. (1979) 24 Cal.3d 773, 785 (cleaned up).)

Here, Plaintiff offered undisputed evidence that Defendant, while sitting in a car with her boyfriend, pointed to Plaintiff. The reasonable inference being that she identified Plaintiff to Mr. Young. (UMF No. 3.) Shortly thereafter, Mr. Young got out of the car and approached Plaintiff, who was sitting in the adjacent car. Mr. Young threatened Plaintiff as he brandished a gun and told Plaintiff not to disrespect Defendant. (PSUMF No. 33.) Turning to the events inside the 7-Eleven, Plaintiff asked Defendant what he had done to deserve being threatened by Mr. Young with a gun. Defendant responded that she had called Plaintiff’s residence and Plaintiff responded by telling Defendant to mind her own business and hanging up the phone. (PSUMF No. 42.) When Plaintiff asked if that warrants having a gun pointed at him, Defendant simply shrugged. (PSUMF Nos. 43, 44.) A reasonable trier of fact could infer that Defendant and Mr. Young, either while they were sitting together in the car together or before, agreed to assault Plaintiff and agreed that Mr. Young would assault Plaintiff with a gun. The motive for the assault was retaliation for Plaintiff’s disrespectful conduct. Plaintiff points to the fact that when confronted by evidence of the parking lot assault with a firearm, Defendant shrugged in response. A reasonable trier of fact could infer from Defendant’s lack of surprise and apparent acceptance of the prior events that Defendant had conspired with Mr. Young to assault Plaintiff. Indeed, Mr. Young knew exactly who Plaintiff was when he assaulted him in the parking lot. It iss reasonable to infer that the identifying information and the source of the motive for the assault came directly from Defendant, which further supports the inference that Defendant conspired with Mr. Young to assault Plaintiff.

Plaintiff also submits post-June 16, 2020 evidence to corroborate the existence of a conspiracy to assault and harass Plaintiff. On June 18, 2020, Plaintiff began receiving phone calls from Mr. Young using Defendant’s alternate phone number of (323) 598-4613. (PSUMF Nos. 5, 6, 51, 52.) A reasonable inference from the evidence is that Mr. Young obtained Plaintiff’s phone number from Defendant who, when employed as a security guard at the Alessio Apartments, had access to the tenant phone directory. (PSUMF No. 50.)

In sum, Defendant is not entitled to summary adjudication as to the Second, Third, and Fifth Causes of Action. Having so concluded, the Court need not and does not reach Plaintiff’s alternate theory of aiding and abetting.[1]

The motion for summary adjudication as to the First Cause of Action for Constructive Eviction is GRANTED.

The motion for summary adjudication as to the Second Cause of Action for Assault, Third Cause of Action for Intentional Infliction of Emotional Distress, and Fifth Cause of Action for Negligence is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] To establish liability as an aider and abetter, a plaintiff must prove (1) that the defendant knew an assault was going to be committed by an actor against the plaintiff; (2) that the defendant gave substantial assistance or encouragement to the actor; and (3) that the defendant’s conduct was a substantial factor in causing harm to the plaintiff. Mere knowledge that an assault was going to be committed and the failure to prevent it do not constitute aiding and abetting. (CACI No. 3610; Nasrawi v. Buck Consultants LLC (2014) Cal.App.4th 328, 343.) The evidence discussed herein would similarly support an aiding and abetting theory of liability against Defendant.