Judge: Kevin C. Brazile, Case: 21STCV15761, Date: 2023-05-25 Tentative Ruling

Hearing Date: May 25, 2023

Case Name: Roth, et al. v. 818 North Alfred Street LLC, et al.

Case No.: 20STCV39725 

Matter: Motion for Summary Judgment/Adjudication 

Moving Party: Defendants D&A Endeavors, Inc. and Servpro Industries, LLC 

Responding Party: Plaintiffs Jennifer Roth and Matthew Lifson

Notice: OK

Ruling: The Motion for Summary Judgment/Adjudication is denied.   

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

This is a habitability matter.  Defendants D&A Endeavors, Inc. (“D&A”) and Servpro Industries, LLC (“SIL”) seek summary judgment, or alternatively, summary adjudication of all claims against them because they cannot be liable for nuisance or negligence for mold-related damages to the extent (1) they were hired only to do water remediation and (2) they did not use fans (but rather dehumidifiers) that would spread mold around the apartment of Plaintiffs Jennifer Roth and Matthew Lifson.  

The law of summary judgment provides courts “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.)  In reviewing a motion for summary judgment or adjudication, courts employ 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.)  The moving party bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue, in which case the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue.  (Code Civ. Proc. § 437c(p)(2).)  To show a triable issue of material fact exists, the opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto.  (Aguilar, at p. 849.)  Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

As an initial matter, Plaintiffs contend that they will dismiss SIL and they only oppose the Motion with respect to D&A.

The Court orders that the dismissal of SIL be filed within five days.  The Motion is, therefore, denied as moot with respect to SIL.  

With respect to D&A, negligence requires duty, breach of duty, proximate causation, and damages.  (N.N.V. v. American Assn. of Blood Banks (1999) 75 Cal.App.4th 1358, 1402.) 

The elements for a nuisance claim are as follows: “First, the plaintiff must prove an interference with his use and enjoyment of his property. [] 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. [] 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.”  (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262–63 (internal quotation marks omitted).)  “A nuisance may be either a negligent or an intentional tort.”  (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920.) 

Here, there are triable issues as to whether D&A exacerbated the mold condition at Plaintiffs’ property by dehumidifying areas without stopping the spread of mold, creating aerosolized mold particles that could easily spread throughout Plaintiffs’ apartment.  Plaintiffs’ expert indicates that “Servpro made conditions worse without proper containment during their drying process. Removing moisture in an environment with mold growth enables the release of mold spores, fragments and mycotoxins as the mold colonies begin to dry out from the loss of moisture. Dry mold colonies become easier for release and movement of spores and fragments into the air. IICRC S500 Section 12.3.2 Engineering Controls: Containment and Managed Airflow: In grossly contaminated environments, restorers shall implement procedures to minimize the spread of contaminants. This can be accomplished by isolating contaminated areas, erecting containment, maintaining negative pressure, and employing appropriate work practices.” The Court finds Plaintiffs’ expert testimony on this point to be sufficient to create a triable issue. 

Plaintiffs’ expert further indicates that mold was exacerbated to the extent sufficient dehumidifiers were not used, leaving Plaintiffs’ drywall wet even after the dehumidifiers were removed.  That is, D&A allowed the mold to continuously grow.   

Therefore, the Motion for Summary Judgment/Adjudication is denied.  

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.