Judge: Lisa K. Sepe-Wiesenfeld, Case: 21SMCV01176, Date: 2024-02-22 Tentative Ruling
Case Number: 21SMCV01176 Hearing Date: February 22, 2024 Dept: N
TENTATIVE RULING
Defendant
Rodeo Realty, Inc.’s Motion for Summary Judgment or, in the Alternative,
Summary Adjudication is GRANTED as to the assigned claims alleged in Plaintiff
Arianna Libera’s third and sixth causes of action, DENIED as to the assigned
claim in Plaintiff Arianna Libera’s seventh cause of action, and DENIED in all
other respects.
Defendant
Rodeo Realty, Inc. to give notice.
REASONING
Defendant
Rodeo Realty, Inc. (“Defendant”) moves for summary judgment or adjudication as
to Plaintiff Arianna Libera (“Plaintiff”)’s claims for negligence and violation
of Business and Professions Code section 17200 alleged against Defendant in the
third, sixth, and seventh causes of action in Plaintiff’s First Amended Complaint
(“FAC”).
Request
for Judicial Notice
Plaintiff
requests judicial notice of the California Department of Real Estate License
History Certification for Adi Ben Yaacov (a.k.a. Adi Mor), dated October 31,
2021. Plaintiff’s request is GRANTED pursuant to Evidence Code section 452,
subdivision (c).
Reply
Separate Statement
At
the outset, the Court notes that it has not considered Defendant’s “Response to
Plaintiff’s Separate Statement of Additional Material Facts in Dispute,” as this
document is a reply separate statement not authorized by statute, and Defendant
failed to seek leave of court to file such a document. (See Nazir v. United Airlines, Inc. (2009)
178 Cal.App.4th 243, 252 [“There is no provision in the statute for” including
a reply separate statement].)
Legal
Standard
The
purpose of a motion for summary judgment or summary adjudication “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. Atl.
Richfield Co. (2001) 25 Cal.4th 826, 843.)
“On a
motion for summary judgment, the initial burden is always on the moving party
to make a prima facie 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).) “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.” (Ibid.)
“If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr.
(2008) 159 Cal.App.4th 463, 467 (Avivi).)
“Code of
Civil Procedure section 437c, subdivision (c), requires the trial judge to
grant summary judgment if all the evidence submitted, and ‘all inferences
reasonably deducible from the evidence’ and uncontradicted by other inferences
or evidence, show that there is no triable issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.) “[T]he court must consider all of the evidence set
forth in the papers (except evidence to which the court has sustained an
objection) . . . in the light most favorable to the party opposing summary
judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see
also Code Civ. Proc., § 437c, subd. (c).)
Assignment
of Claims
Defendant
first argues that Plaintiff lacks standing to sue Defendant for claims assigned
to her by third parties Massimiliano Constantini and Gioia Di Girolamo. (See
FAC ¶ 1.) In opposition, Plaintiff concedes that the third parties were not
permitted to assign their personal injury tort causes of action, but she argues
that this does not dispose of any cause of action because other assigned claims
remain. (Opp’n, p. 10, ll. 19-25.) It is clear that the third parties’
negligence claims were not assignable, as Plaintiff concedes that a claim for
“negligent personal injuries” as alleged in the FAC (see FAC ¶ 45 [alleging
third parties were injured in their healthy, strength, and activity] is not
assignable (see Murphy v. Allstate
Insurance Co. (1976) 17 Cal.3d 937, 942 [“a purely personal tort cause of
action is not assignable in California,” and “it must be concluded that damage
for emotional distress is not assignable”], and it is proper to dispose of an
issue of damages and duty in a motion for summary adjudication (Code Civ.
Proc., § 437c, subd. (f)(1)). Assignment of a claim under Business and
Professions Code section 17200 has also been held to be improper (see Amalgamated Transit Union, Local 1756,
AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1002 [assignment of a
claim under Business and Professions Code section 17200 is “in direct violation
of the express statutory requirement in the unfair competition law, as amended
by the voters’ enactment of Proposition 64, that a private action under that
law be brought exclusively by a ‘person who has suffered injury in fact and has
lost money or property as a result of the unfair competition’”].
As to the
sixth cause of action for professional negligence, Defendant relies primarily
on cases stating that legal malpractice claims are not assignable, but this
prohibition arises out of “the unique quality of legal services, the personal
nature of the attorney’s duty to the client and the confidentiality of the
attorney-client relationship” (AMCO
Insurance Co. v. All Solutions Insurance Agency, LLC (2016) 244 Cal.App.4th
883, 893), while a claim for professional negligence against a real estate
broker is more closely analogized to a negligence claim against an insurance
broker, which is permitted under law (see ibid.).
Thus, the Court concludes that Defendant is entitled to adjudication in its
favor as to Plaintiff’s assigned claims for negligence in the third cause of
action and violation of Business and Professions Code section 17200 in the
sixth, but not as to Plaintiff’s assigned claim for professional negligence in
the seventh cause of action.
Third
Cause of Action: Negligence and Seventh Cause of Action: Negligence
In order
to establish a claim for negligence, Plaintiff must establish the elements of
(1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3)
“proximate cause resulting in an injury.” (McIntyre
v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)
In the
third cause of action, Plaintiff alleges that Defendant “negligently owned,
entrusted, leased, maintained, managed, controlled, and operated the property
leased by Plaintiff.” (FAC ¶ 44.) It appears that Plaintiff’s negligence claim
is based on the alleged harm she suffered due to substandard conditions in the
unit. (FAC ¶ 21.) Defendant argues it is entitled to adjudication in its favor
because it did not control, entrust, lease, maintain, manage, control, or
operate any property leased by Plaintiff.
Defendant
provides evidence that Defendant Adi Mor worked as independent contractor
selling agent for Defendant, and she only made money based on sales
commissions, with the contract providing that Mor was not permitted to manage
property, and Mor admitted that she did not manage the leases at issue on
Defendant’s behalf. (Def.’s UMF Nos. 3-5.) Defendant did not sanction, ratify,
support, or know about Mor’s rental arrangement with Plaintiff until this
action was filed, and Defendant did not receive any money or serve in any way
from Mor’s agreement with Plaintiff, nor did Mor receive any money from
Defendant for managing properties, and the leases did not mention Defendant.
(Def.’s UMF Nos. 6-8.) Mor acted on behalf of her LLC, not on Defendant’s
behalf; she did not submit transaction documents to Defendant; she did not need
a real estate agent license to rent out property or manage leasing out property
as the representative of her LLC; Mor used her personal email account for her
business dealings; Defendant did not communicate with Mor’s husband or
Plaintiff at any time; Defendant did not control or manage Mor’s schedule or
supervise her with respect to the leasing and management of the property; and
Defendant did not find any disciplinary actions against Mor when it entered
into a contract with her that would compel Defendant to conclude Mor was unfit
for her agency with Defendant. (Def.’s UMF Nos. 9-14.)
Plaintiff
first presents evidence that Mor was engaged in behavior requiring a real
estate license, including acting as a leasing agent, showing Plaintiff the
property, discussing the property with Plaintiff, running a credit check on
Plaintiff and obtaining personal references, being present while Plaintiff
signed a lease, and collecting and receiving rent from Plaintiff. (Pl.’s UMF
Nos. 11, 13-19.) Defendant counters that Mor testified she was working on
behalf of the LLC, such that her activities did not require a real estate
license (see Horning v. Shilberg
(2005) 130 Cal.App.4th 197, 204 [“a person acting on his or her own behalf in a
real estate transaction
is not a
broker within the meaning of Business and Professions Code section 10131”]), and
Mor and Defendant had entered into an agreement for transactions, including the
lease or rental of the property, to be split 90/10. (Pl.’s UMF No. 5.) It
follows that Defendant then had a duty to supervise Plaintiff’s activities, and
it may be liable for failure to properly supervise Mor’s conduct, as there is a
triable issue of material fact as to whether Mor was acting as an employee of
Defendant for the purposes of liability. (See Horiike v. Coldwell Banker Residential Brokerage Co. (2016) 1
Cal.5th 1024, 1036-1037 [“Brokers, in turn, are required to supervise the
activities of their salespersons and may be disciplined and held liable based
on salespersons’ conduct within the scope of their employment”].) Further,
“[u]nder the doctrine of respondeat superior, an employer may be held
vicariously liable for torts committed by an employee within the scope of
employment.” (Mary M. v. City of Los
Angeles (1991) 54 Cal.3d 202, 208.) Whether Mor was acting outside the
scope of her contract with Defendant is a question of fact for the jury.
Accordingly, Defendant’s motion for summary adjudication is DENIED as to the
third and seventh causes of action.
Sixth
Cause of Action: Violation of Business and Professions Code section 17200
Defendant
argues that it is not liable for violating Business and Professions Code
section 17200 because it had no communication with Plaintiff and did not direct
or control any communications between Plaintiff and Mor or Mor’s husband.
However, as stated above, there is a triable issue as to whether Mor was an
agent of Defendant and whether Defendant may be held liable for Mor’s conduct
in her capacity acting as an employee of Defendant. Accordingly, Defendant’s
motion for summary adjudication is DENIED as to the seventh cause of action.
Evidentiary
Objections
Plaintiff
objects to certain statements within the deposition of Adi Mor. Plaintiff’s
objections are OVERRULED.