TENTATIVE RULING

Plaintiff/Cross-Defendant Benjamin Gorlick’s Motion for Summary Adjudication of Issues is DENIED.

Plaintiff/Cross-Defendant Benjamin Gorlick to give notice. 

REASONING

Plaintiff/Cross-Defendant Benjamin Gorlick (“Plaintiff”) moves the Court for summary adjudication of Plaintiff’s first, fifth, and seventh causes of action in his complaint, and the first, second, third, fourth, and fifth causes of action in Defendant/Cross-Complainant Mezhgan Hussainy (“Defendant”)’s cross-complaint. Notably, this motion is two motions for summary adjudication filed as one, as it relates to two pleadings. The Court does not consider Plaintiff’s motion as to Defendant’s claims in her cross-complaint. Plaintiff may file a second motion, obtain a second hearing date, and pay a second motion filing fee for this motion to be heard on a later date.

First Cause of Action: Breach of Contract

To state a cause of action for breach of contract, Plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

In his complaint, Plaintiff alleges that Defendant breached the rental agreement between the parties by failing to provide the subject property in a habitable condition to Plaintiff; by failing to refund the security deposit of $92,216.74, less a reduction for any cleaning and actual repairs that were done as detailed in an itemized statement; and by failing to provide such itemization, documentation, and refund as required by Civil Code section 1950.5, subdivision (g)(1). (Compl. ¶ 9.) Defendant’s answer asserts an affirmative defense for offset on the ground that the security deposit was retained in good faith. (See Granberry v. Islay Investments (1995) 9 Cal.4th 738, 749 [landlord may assert an affirmative defense of offset as justification for retaining security deposit].)

Plaintiff provides evidence that he and Defendant entered into a lease for the property at 624 Cole Place in Beverly Hills, he paid a security deposit of $92,216.74, he performed his duties and obligations under the lease during the tenancy, he vacated the property on September 19, 2023, Defendant did not provide an itemized statement by October 10, 2024 describing the required repairs, he received a document on October 9, 2024 estimating necessary work, and Defendant failed to provide a good faith accounting of repairs. (Pl.’s UMF Nos. 1-7.) In opposition, Defendant provides evidence that Plaintiff kept a dog on the property that caused damage to the property, he failed to pay for required services, he changed fixtures in violation of the lease, he drilled holes in the walls and beams without permission, and he changed out the security system without permission. (Def.’s UMF No. 2.) Defendant also provides evidence that the repairs could not be completed within 21 days, she did not have all invoices and receipts for accounting on that date, and the estimate was prepared by her contractor. (Def.’s UMF Nos. 2-7.) 

This evidence shows that there is a triable issue of material fact as to Plaintiff’s claim for breach of contract, as the purported failure to return the security deposit is represented to be the result of damage done to the property. Accordingly, Plaintiff’s motion for summary adjudication is DENIED as to the first cause of action.

Fifth Cause of Action: Statutory Violation, Failure to Return Security Deposit

Civil Code section 1950.5, subdivision (g), requires that a landlord furnish the tenant an itemized statement indicating the basis for retaining any portion of a security deposit no later than 21 calendar days after the tenant has vacated the premises, which shall include copies of documents showing charges to repair the premises, but if a repair cannot be completed within 21 days, it is sufficient to deduct the amount of a good faith estimate of the charges and provide the estimate with the itemized statement.

Plaintiff again alleges that Defendant wrongfully retained his security deposit in failing to refund the deposit or provide the required statement of repairs. (Compl. ¶ 33.) Plaintiff again provides evidence that he paid a security deposit of $92,216.74, he vacated the property on September 19, 2023, Defendant did not provide an itemized statement by October 10, 2024 describing the required repairs, he received a document on October 9, 2024 estimating necessary work, and Defendant failed to provide a good faith accounting of repairs. (Pl.’s UMF Nos. 9-13.) In opposition, Defendant again provides evidence that Plaintiff kept a dog on the property that caused damage to the property, he failed to pay for required services, he changed fixtures in violation of the lease, he drilled holes in the walls and beams without permission, and he changed out the security system without permission. (Def.’s UMF No. 9.) Defendant also provides evidence that the repairs could not be completed within 21 days, she did not have all invoices and receipts for accounting on that date, and the estimate was prepared by her contractor. (Def.’s UMF Nos. 9-13.)

This evidence shows that there is a triable issue of material fact as to Plaintiff’s claim for wrongful retention of a security deposit, as the purported failure to return the security deposit was said to be the result of damage done to the property. Thus, Plaintiff’s motion for summary adjudication is DENIED as to the fifth cause of action.

Seventh Cause of Action: Conversion

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.)

Plaintiff alleges that Defendant converted his security deposit for her own use, and he has demanded return of the funds, but Defendant has refused. (Compl. ¶¶ 44-46.) Plaintiff again provides evidence that he paid a security deposit of $92,216.74, he vacated the property on September 19, 2023, Defendant did not provide an itemized statement by October 10, 2024 describing the required repairs, he received a document on October 9, 2024 estimating necessary work, and Defendant failed to provide a good faith accounting of repairs. (Pl.’s UMF Nos. 16-22.) In opposition, Defendant again provides evidence that Plaintiff kept a dog on the property that caused damage to the property, he failed to pay for required services, he changed fixtures in violation of the lease, he drilled holes in the walls and beams without permission, and he changed out the security system without permission. (Def.’s UMF No. 16.) Defendant also provides evidence that the repairs could not be completed within 21 days, she did not have all invoices and receipts for accounting on that date, and the estimate was prepared by her contractor. (Def.’s UMF Nos. 16-22.)

This evidence shows that there is a triable issue of material fact as to Plaintiff’s claim for conversion, as the purported failure to return the security deposit was said to be the result of damage done to the property. Accordingly, Plaintiff’s motion for summary adjudication is DENIED as to the seventh cause of action.

For these reasons, Plaintiff/Cross-Defendant Benjamin Gorlick’s Motion for Summary Adjudication of Issues is DENIED.

Evidentiary Objections

Defendant objects to certain statements within the declaration of Debbie Sutz. Defendant’s objection is not properly formatted in compliance with rule 3.1354(b) of the California Rules of Court; thus, Objection No. 1 is OVERRULED. Defendant also objects to certain statements within the declaration of Benjamin Gorlick. The Court declines to rule on Objection Nos. 2 to 4, as the evidence at issue was not material to the Court’s ruling herein.

Plaintiff objects to certain statements within the declaration of Mezhgan Hussainy and exhibits supporting Defendant’s motion. Plaintiff’s objections are not properly formatted in compliance with rule 3.1354(b) of the California Rules of Court. For that reason, Plaintiff’s objections are OVERRULED.