Judge Lynne M. Hobbs, Case Number: 20STCV02037, Date: 2024-08-29 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV02037, Date: 2024-08-29 Tentative Ruling

Case Number: 20STCV02037 Hearing Date: August 29, 2024 Dept: 61

JOCELYN FRYE, et al. vs ROBHANA GROUP INC

TENTATIVE

Defendant 825 Ajax, LLC’s Motion for Summary Judgment or Adjudication is DENIED.

Plaintiff to give notice.

DISCUSSION

I. OBJECTIONS

Defendant Ajax objects to portions of the declaration of Plaintiff Madison Applegate. (Reply at pp. 2–4.) The basis for the objections offered in reply consist almost entirely of the contention that Plaintiffs cannot rely on a declaration without supporting documents or deposition testimony. (Reply at pp. 2–4.) But Defendant presents no authority for the proposition that a competent declaration cannot constitute evidence, as the statute governing motions for summary judgment expressly permits their use. (Code Civ. Proc. § 437c, subd. (b)(2).) Nor does Defendant contend that any contention made in Plaintiff Applegate’s declaration contradicts her prior testimony at deposition. Defendant’s objections are OVERRULED.

II. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord 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 that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere 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 that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendant 825 Ajax, LLC (Defendant) moves for summary judgment on all claims asserted in the Third Amended Complaint (TAC) of Plaintiffs Jocelyn Frye, Madison Applegate, Michaela Leonard, and Dylan Forester (Plaintiffs). Defendant argues that Plaintiffs cannot show the breach of any warranty of habitability, or prove their associated claims, because the evidence shows that there was no defective material condition on the property, that Defendant acted to correct the condition within a reasonable time, and that Plaintiffs did not suffer resulting damages. (Motion at pp. 13–18.)

The parties present the following facts. Plaintiffs moved into the subject premises owned by Defendant on June 29, 2019. (Plaintiff’s Separate Statement of Undisputed Material Facts (PUMF) No. 5–6.) On July 1, 2019, Plaintiffs notified Defendant of issues with the washing machine boot needing replacement, the washer receiving only warm water, a defective oven knob, a clogged bathroom tub, air vents and refrigerator water filters that needed replacing, and cat hair, mildew, and other residue that had been left behind by Defendant’s cleaners on move-in day. (PUMF No. 7; Applegate Decl. ¶ 7; Maxwell Decl. Exh. 3.) On July 10, 2019, Defendant had another cleaning performed. (Maxwell Decl. ¶ 11.)

Plaintiffs contend this second clean was still inadequate, and on July 13, 2019, Plaintiff Applegate’s father came to assist in the cleaning, during which time Plaintiffs changed the air filters, which had accumulated a large amount of debris. (Maxwell Decl. Exh. 6; Applegate Decl. ¶ 10.)Plaintiffs notified Defendant on September 27, 2019, of their suspicion that the unit had a mold issue, stating that they had conducted a test that revealed the presence of mold. (PUMF No. 14.) Plaintiffs hired Rush Quality Environmental to perform an inspection on September 27, 2019, which found mold in the HVAC filter. (PUMF No. 17–18.)Defendant contacted an AC service technician to inspect the HVAC system on October 1, 2019. (PUMF Non. 21.) On October 4, 2019, Defendant told Plaintiffs that the technician would return on October 7, 2019, and that arrangements were being made to have the property cleaned by a mold specialist. (PUMF No. 22.) But on October 5, 2019, Plaintiffs told Defendant that they would be vacating the premises on October 15, 2019, which they did upon the recommendation of their mold inspector. (PUMF No. 23–24; Applegate Decl. ¶ 15.)

Defendants contend that of the Plaintiffs who sought treatment related to mold exposure, Plaintiff Leonard’s testing revealed high levels of aspergillus and penicillium, the former of which was not found on the premises. (Maxwell Decl. ¶ 31.) Plaintiff Forester’s testing also revealed aspergillus outside the normal range. (Maxwell Decl. ¶ 33.) Plaintiff Applegate’s testing did not reveal mycotoxin levels beyond the normal range. (PUMF No 32.) Defendant thus argues that there is no breach of the warranty of habitability or quiet enjoyment, or negligence or constructive eviction, as it responded promptly to Plaintiffs’ notices of mold exposure, and there is no evidence that any mold present on the premises during their tenancy caused their injuries. (Motion at pp. 12–15.)

The implied warranty of habitability . . . gives a tenant a reasonable expectation that the landlord has inspected the rental dwelling and corrected any defects disclosed by that inspection that would render the dwelling uninhabitable. The tenant further reasonably can expect that the landlord will maintain the property in a habitable condition by repairing promptly any conditions, of which the landlord has actual or constructive notice, that arise during the tenancy and render the dwelling uninhabitable.12 *1206 A tenant injured by a defect in the premises, therefore, may bring a negligence action if the landlord breached its duty to exercise reasonable care.13 But a tenant cannot reasonably expect that the landlord will have eliminated defects in a rented dwelling of which the landlord was unaware and which would not have been disclosed by a reasonable inspection. The implied warranty of habitability, therefore, does not support an action for strict liability.(Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1205–1206.)

The evidence laid out by Defendant in its motion do not disclose the absence of triable issues of fact. Although it argues that it remedied the mold after Plaintiffs complained of the inspection results, the evidence presented only describes the actions taken after Plaintiff’s complaints, not whether the mold problem preexisted their move into the unit or was reasonably susceptible to detection at that time. Defendant’s argument that they were not permitted a sufficient time in which to remedy the defect also fails since they measure time from Plaintiffs’ discovery of the defect and their complaints related thereto, instead of from their own actual or constructive knowledge of the defect, for which no evidence is presented. (Motion at p. 14.)

Defendant argues that Plaintiffs suffered no damage from any mold exposure, since the evidence shows that they only were infected by mold types not detected in the unit. (Motion at pp. 14–15.) But this argument too lacks merit. Both of Plaintiffs’ mold inspections revealed the presence of concentrations of penicillium in the unit. (Maxwell Decl. Exhs. 10, 11.) And Plaintiff Leonard’s testing revealed that she had abnormally high levels of both aspergillus and penicillium exposure. (Maxwell Decl. Exh. 17.) Moreover, the tests that Defendant interprets here — no expert testimony is provided by either side — suggests that Plaintiff Forster’s exposure to aspergillus may be traceable to the unit. This is because the testing does not measure “aspergillus” exposure per se, but only exposure to certain metabolites associated with aspergillus, such as aflatoxin-M1 or ochratoxin A. (Maxwell Decl. Exh. 18.) Forster’s test shows high levels, not of exposure to aspergillus alone, but of “ochratoxin A,” which the test itself explains is a mycotoxin “produced by molds in the Aspergillus and Penicillium families.” (Maxwell Decl. Exh. 18.) The tests thus reveal high levels of mycotoxin associated with mold detected in the unit.

Defendant in reply places great emphasis on the fact that the unit was inspected for mold, but not mycotoxins specifically. (Reply at pp. 7–8.) But Defendant presents no authority for the proposition that such testing is required to prove Plaintiffs’ claims. Contemporaneous testing was performed, which detected the presence of various kinds of mold in varying quantities, and Plaintiffs themselves were tested for mycotoxins, and their tests showed exposure to high levels of certain toxins associated with the mold detected. Defendant cites the case of Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1336, in which the court upheld a grant of summary judgment against a claim based on alleged fungal infection from exposure to contaminated dust. But in that case, the Defendant’s experts established that the plaintiff “had no . . . scientific data” showing that the subject fungus was “in the soil at issue at the time of exposure,” and the plaintiff’s experts failed to establish exposure to soil containing the harmful fungus. (Miranda, supra, 187 Cal.App.4th at pp. 1338–1339.) This is unlike the present case, where Defendant does not present any expert testimony to support its motion, and does not challenge the tests that Plaintiffs relied upon in making their decision to vacate the property.

Defendant in reply argues for the first time that Plaintiffs must present competent evidence to show that they suffered illness or other symptoms from their time at the unit, and takes issue with the fact that only Applegate has submitted a declaration attesting to her symptoms. (Reply at p. 8.) But Defendant made no issue of the reality of Plaintiffs’ illnesses or symptoms in their motion, except to argue that, whatever their nature, the tests indicated they could not have been caused by exposure to mold in the unit. It would be a violation of Plaintiffs’ due process rights to allow Defendant to prevail on a theory submitted for the first time in reply. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [“Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail.”].)

Defendant has thus failed to satisfy its burden to show the absence of triable issues on Plaintiff’s claims for breach of contract, breach of the implied warranty of habitability, breach of the implied covenant of quiet enjoyment, negligence, and constructive eviction, each of which rely upon the arguments discussed above. (Motion at pp. 12–16, 17–18.)

Defendant’s argument as to the claim for intentional misrepresentation is also unsupported. Defendant argues that no fraud claim can proceed because the misrepresentation complained of is that of the implied warranty of habitability contained in the lease agreement itself — i.e. that Defendant, by leasing the premises to Plaintiff, implicitly warranted that the premises were habitable. (Motion at pp. 16–17.) Defendant cites no authority for its argument that renting a unit known to be uninhabitable, or where its habitability is recklessly disregarded, cannot furnish a basis for fraud. “Where the implied promise is certain enough to cause reasonable reliance, there is no reason it cannot be a proper basis for fraud. Parties may not avoid liability for fraud simply because they leave to implication what they clearly intend to communicate.” (Huy Fong Foods, Inc. v. Underwood Ranches, LP (2021) 66 Cal.App.5th 1112, 1124.) Although Defendant argues that there is no evidence of the element of scienter, once again Defendant presents no evidence of scienter at all, or of Plaintiffs’ ability to prove or disprove it. (Motion at p. 17.) There is no basis to grant the motion as to Plaintiffs’ fraud claims.

Defendant finally argues that there is no cause of action as to Defendant’s failure to return the security deposit because all of the charges made on Plaintiffs’ deposit were permitted by Civil Code § 1950.5. (Motion at p. 17.) But this argument too is unsupported. The evidence consists of little more than the charge sheet itself, without any evidence that the underlying charges were incurred. (Maxwell Decl. Exh. 22.) Defendant also neglects an October 2, 2019 email in which Defendant’s representative informed Plaintiffs that October 2019 rent — charged against Plaintiffs’ security deposit — was being waived in response to their habitability issues. (Maxwell Decl. Exh. 6.) Although Defendant in reply argues that this was a statement made in the context preliminary settlement communications that were ultimately unresolved, the communication itself tells plaintiffs: “[Y]ou are all released from all obligations to your lease agreement and will get 100% of your security deposit back,” without any indication that these terms are contingent upon an ultimate settlement agreement to be concluded later. (Maxwell Decl. Exh. 6.) Defendant’s characterization of the communication thus need not be taken as accurate by the trier of fact.

The motion is therefore DENIED.