Judge: Margaret L. Oldendorf, Case: 23PDUD02828, Date: 2023-11-07 Tentative Ruling
Case Number: 23PDUD02828 Hearing Date: November 7, 2023 Dept: P
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
I. INTRODUCTION
This
is an unlawful detainer action. Plaintiffs Edvin Dilanchiyan, Anita Amirian,
Mavis Shamirian and Serjak Shamirian (collectively Plaintiffs) allege that
Defendant Amy Denise Derry (Derry) remains in possession of 2236 North Ontario St,
Unit B, Burbank CA 91504 (Subject Property) despite a 30-day notice to quit to
perform substantial repairs.
Before
the Court is Defendant Derry’s motion for summary judgment filed on October 24,
2023. Derry argues that the unlawful detainer action should fail because it is
in violation of applicable retaliatory eviction statutes.
For the reasons that follow, the motion for summary
judgment is denied.
II. LEGAL
STANDARD
Summary judgment is appropriately granted where it is shown
that an action has no merit or that there is no defense to the action. (Code
Civ. Proc. § 437c(a).) A cause of action has no merit if one of the following
exists: (1) one or more necessary elements cannot be established; (2) a
defendant establishes an affirmative defense. (CCP § 437c(o).)
The moving party bears the
initial burden of production to make a prima facie showing that there are no
triable issues of material fact.¿ (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850.)¿ A defendant moving for summary judgment must show
either: (1) that one or more elements of
the cause of action cannot be established or (2) that there is a complete
defense to that cause of action.¿ (Code Civ. Proc. §437c(p).)
A motion for summary judgment shall be granted where all
the papers submitted show that there is no triable issue of material fact and
that the moving party is entitled to judgment as a matter of law. (CCP §437c(c).)
The requirement of a separate statement setting forth undisputed material facts
does not apply in unlawful detainer cases.
(Subdivisions (a) and (b) of CCP §437c
do not apply to actions “brought pursuant to Chapter 4 (commencing with Section
1159) of Title 3 of Part 3.” (CCP § 437c(s).)
III. ANALYSIS
A. Procedural Considerations
California Rules of Court, rule 3.1350(c) provides, “the
motion must contain and be supported by the following documents:
(1) Notice of motion
by [moving party] for summary judgment or summary adjudication
or both;
(2) Separate statement
of undisputed material facts in support of [moving party's] motion for
summary judgment or summary adjudication or both;
(3) Memorandum in
support of [moving party's] motion for summary judgment or summary
adjudication or both;
(4) Evidence in support
of [moving party's] motion for summary judgment or summary adjudication
or both; and
(5) Request for
judicial notice in support of [moving party's] motion for summary
judgment or summary adjudication or both (if appropriate).” (CRC 3.1350(c).)
Here are the issues identified in the Notice: The unlawful
detainer complaint has no merit as it is in violation of the retaliatory
eviction statute, Civil Code Section 1942.5. (Motion p. 2: 1.)
The Court notes that there is no separate statement of undisputed
material facts in support of Derry’s motion for summary judgment. However, this
is an action brought under Ch. 4 of Title 3, Part 3, and therefore CCP Section 437c(b)(1)
does not apply. (CCP § 437c(s) [noting that subdivisions (a) and (b) of 437c do
not apply to actions brought under Ch,4 of Title 3, Part 3, starting with
Section 1159.]) This motion is in connection with an unlawful detainer, and is
brought under CCP section 1161. (CCP § 1161.)
C. Retaliatory Eviction
Retaliatory
eviction is an affirmative defense to an action for unlawful detainer. (Drouet
v. Superior Court (2003) 31 Cal.4th 583, 587.) Civil Code Section 1942.5
provides that a landlord may not retaliate against and recover possession of a
rental unit or cause the tenant to quit involuntarily within 180 days: “After the date upon which the lessee, in
good faith, has filed a written complaint, or an oral complaint which is
registered or otherwise recorded in writing, with an appropriate agency, of
which the lessor has notice, for the purpose of obtaining correction of a
condition relating to tenantability.” (CC § 1942.5(a)(2).) Civil Code Section
1942.5 further provides that it is “unlawful for a lessor to increase rent,
decrease services, cause a lessee to quit involuntarily, bring an action to
recover possession, or threaten to do any of those acts, for the purpose of
retaliating against the lessee because the lessee has … peaceably exercised any
rights under the law.” (CCP § 1942.5(d).) “The lessee [tenant] shall bear the
burden of producing evidence that the lessor’s conduct was, in fact,
retaliatory.” (CCP § 1942.5(d).)
In her motion for summary judgment, Derry alleges that she
filed a complaint with the Department of Public Health on July 5, 2023. (Motion,
p.11: 1-3, referencing Exh. 6.) Exhibit 6 to the Motion is a notice from the
Los Angeles Department of Public Health, confirming that the department had
received Derry’s complaint about mold at the property. The confirmation notice
provides that the “The owner/responsible party has been notified of the
allegations and has been directed to make the necessary correction(s) by the
compliance date.” (Motion, Exh.6, p. 23.)
Plaintiffs
filed their unlawful detainer action on August 11, 2023, in order to recover
possession. (8/11/23 Complaint.) This filing was within 180 days of Derry’s
exercise of her rights as a tenant, as evidenced by Exhibit 6 to the Motion for
Summary Judgment. The 180-day window will expire January 1, 2024.
However, the burden of showing that the landlord’s conduct was
retaliatory is on the tenant. (CC § 1942.5(d).) In support of her motion, Derry
urges that “In fact, such acts are presumed to be retaliatory if they occur
within 180 days of tenant/ defendant exercising their rights as a tenant.”
(Motion, p.10: 23-24.) To the extent that Derry is arguing that her landlord’s
conduct was retaliatory, this contention alone is insufficient. Derry does not
produce any evidence that her landlord’s conduct was retaliatory. Derry only
presents evidence of the timeline, which per Civil Code Section 1942, is not
enough. Derry must present evidence that “the lessor’s conduct was, in fact,
retaliatory.” (CC § 1942.5(d).) As such, Derry has not established an
affirmative defense to the unlawful detainer action. As retaliatory eviction was
her only contention on summary judgment, she has not proven that there are no triable
issues of material fact and that she is entitled to judgment as a matter of law.
Consequently, Derry’s motion for summary judgment is
DENIED.
Plaintiffs argue that Derry did not provide them with
adequate notice of her motion for summary judgment. (Objection to Defendant’s
Notice of Motion for Summary Judgment, p.1: 19-21.) Plaintiffs cite CCP Section
1170.7 for the proposition that a motion for summary judgment requires 5 days’
notice. (CCP § 1170.7.) Plaintiffs also cite CCP Section 1010.6(a)(3)(B) for
the proposition that service by electronic means extends any period of notice
by 2 days. (CCP § 1010.6(a)(3)(B).) However,
the Court notes that the motion for summary judgment was previously set for
hearing on October 30, 2023 and is no longer set for that date. The Court, on
its own motion, moved the hearing to November 7, 2023. (10/30/23 Minute Order.)
As such, the notice requirement was met as to the hearing on November 7, 2023. In
any event, because the Court is deciding the motion on the merits of the retaliatory
eviction claim, it declines to deny the motion on this procedural issue.
IV. CONCLUSION
AND ORDER
Defendant Derry’s Motion for Summary Judgment is DENIED. The
case will proceed to trial.
Plaintiffs
are ordered to provide notice of this ruling.
Dated: _______________________________
MARGARET L. OLDENDORF
JUDGE
OF THE SUPERIOR COURT