Judge Mark E. Windham, Case 22STLC04652 2023-03-30 Tentative Ruling

Judge: Mark E. Windham, Case: 22STLC04652, Date: 2023-03-30 Tentative Ruling

Case Number: 22STLC04652 Hearing Date: March 30, 2023 Dept: 26

Heard v. Ghassemi, et al.

MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
(CCP § 437c)

TENTATIVE RULING:

Plaintiff Steve A. Heard’s Motion for Summary Judgment, or in the alternative, Summary Adjudication, is ruled on as follows. THE MOTION FOR SUMMARY JUDGMENT IS DENIED. THE MOTION FOR SUMMARY ADJUDICATION IS GRANTED AS TO THE FIRST AND FOURTH CAUSES OF ACTION AND DENIED AS TO THE SECOND AND THIRD CAUSES OF ACTION.

ANALYSIS:

Plaintiff Steve A. Heard (“Plaintiff”) filed the instant action for (1) violation of Cal. Civ. Code §1950.5-- Unlawful Retention of Security Deposit; (2) breach of lease agreement; (3) negligence; and (4) conversion against Defendant Marco Ghassemi (“Defendant”) on July 13, 2022. Defendant filed an Answer on September 19, 2022.

Plaintiff filed the instant Motion for Summary Judgment, or in the alternative, Summary Adjudication, on January 10, 2023. Defendant filed an opposition and evidentiary objections on March 14, 2023. Plaintiff filed a reply and evidentiary objections on March 16, 2023.

Request for Judicial Notice / Evidentiary Objections

Plaintiff’s request for judicial notice of (1) a trial vourt order in Alcoser v. Thomas, 2009 WL 2984935; and (2) California Tenant Guide, a publication of the California Department of Consumers, are denied. Defendant’s evidentiary objections to the same are sustained.

Plaintiff’s evidentiary objections to declarations in support of the opposition are ruled on as follows:

· To Ghassemi Decl: Nos. 1-2, 4 overruled; Nos. 3 (¶22), 5 (¶26) sustained

· To Padilla Decl.: No. 1 overruled

· To Travillion Decl.: Nos. 1-2 overruled

Discussion

The Complaint alleges causes of action for (1) violation of Cal. Civ. Code §1950.5-- Unlawful Retention of Security Deposit; (2) breach of lease agreement; (3) negligence; and (4) conversion. Specifically, Plaintiff alleges Defendant is doing business in California as a landlord and rented Plaintiff the property located at 12522 Kornblum Ave, Apt 1, Hawthorne, California (“the property”). (Compl., ¶¶8, 15-16.) Plaintiff paid a security deposit of $1,200.00 per the lease agreement. (Id. at ¶17.) Also under the lease agreement, Defendant agreed to return the security deposit to Plaintiff at the end of the tenancy, consistent with Civil Code section 1950.5. (Id. at ¶18.) Defendant did not comply with California law concerning the pre-moveout inspection. (Id. at ¶22.) After the pre-moveout inspection, the property owner “Sal” told Plaintiff “everything is fine.” (Id. at ¶23.) Defendant did not provide Plaintiff with any items that needed to be cleaned, replaced or repaired and then proceeded to take the entire security deposit. (Id. at ¶¶24-25.) Alternatively, Defendant did not provide Plaintiff with an itemized statement and supporting documentation showing why the security deposit had been retained within 21 days by US mail. (Id. at ¶¶28, 31.) Finally, Defendant charged Plaintiff for normal wear and tear, and did not take into account use of life value, and charged for cleaning when the property had been cleaned. (Id. at ¶44.)

Plaintiff moves for summary judgment, or summary adjudication, on the Complaint pursuant to Code of Civil Procedure section 437c. On a motion for summary judgment or adjudication of a particular cause of action, a moving plaintiff must show that there is no defense by proving each element of the cause of action entitling the party to judgment on that cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) Then the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(1).) Additionally, in ruling on the Motion, the Court must view the “evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 81 [citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843].)

1st Cause of Action for Violation of Civil Code section 1950.5

a. Violations of subdivision (f)

Plaintiff alleges that Defendant violated Civil Code section 1950.5, subdivision (f)(1) by failing to provide proper notice of the initial pre-moveout inspection. The statute provides that written notice of the tenant’s option to request an initial inspection and be present at the inspection must be provided by the landlord within a reasonable time after notification of either party’s intention to terminate the tenancy, or before the end of the lease term. (Civ. Code, § 1950.5.) Plaintiff also alleges that Defendant did not provide the proposed itemized statement of deductions at least two weeks before Plaintiff vacated the property, as required by subdivision (f)(2). Plaintiff argues that by failing to provide the written notice and proposed itemization as required, Defendant did not perfect the right to retain any portion of the security deposit. Plaintiff cites to the mandatory language of Civil Code section 1950.5, subdivision (f)(1) and Granberry v. Islay Investments (1995) 9 Cal.4th 738, 745, in which the landlord’s failure to provide an itemized statement within 21 days as required by Civil Code section 1950.5, subdivision (g)(1) meant the landlord could not deduct amounts from the security deposit. Defendant’s opposition does not dispute that compliance with the initial inspection notice and proposed itemization is required to perfect their right to retain any or all of the security deposit.

In support of this violation, Plaintiff contends that they paid a $2,000.00 security deposit as part of the lease agreement for the subject property. Plaintiff declares they entered into the lease agreement with the prior landlord of the property, Defendant’s predecessor, about 20 years ago. (Motion, Separate Statement, Fact No. 1; Heard Decl., ¶¶5-8.) No copy of the lease agreement is attached. Plaintiff declares that the security deposit was paid and provides a copy of Defendant’s itemization of charges deducted, which shows that $2,000.00 was credited towards the repairs to the property. (Motion, Separate Statement, Fact No. 3; Heard Decl., ¶¶6-7 and Exhs. 4, 7.) Plaintiff also demonstrates through discovery responses that no written notice of the right to an initial move-out inspection was provided by Defendant after Plaintiff gave notice of the termination of the tenancy in early 2022. (Motion, Separate Statement, Fact Nos. 6-7; Heard Decl., ¶¶10-14; Exh. 2, Response No. 4.) The evidence regarding Defendant’s failure to provide an itemized statement of proposed deductions is in a similar vein. Plaintiff declares that no statement of proposed deductions was provided two weeks before they moved out of the property. (Motion, Separate Statement, Fact No. 10; Heard Decl., ¶14; Exh. 2.) Notably, Defendant’s discovery responses do not indicate that any written itemization was provided. (Motion, Separate Statement, Fact No. 10; Exh. 2, Response Nos. 4, 7.) This evidence carries Plaintiff’s burden of proof to demonstrate that Defendant violated subdivisions (f)(1) and (f)(2) of section 1950.5 of the Civil Code, and as a result, had no right to deduct any amount from the security deposit.

This shifts the burden of proof to Defendant to demonstrate the existence of a triable issue of material fact regarding their compliance with section 1950.5, subdivision (f). First, the opposition disputes whether Plaintiff was a tenant at the time Defendant purchased the property and whether Plaintiff paid a security deposit. Defendant declares they purchased the property in September 2019 at which time they received an Estoppel Certificate executed by the then-tenants, Lilian Lewis and William Brown. (Opp., Separate Statement, Fact No. 1; Ghassemi Decl., ¶¶4-5; Travillion Decl., Exh. B-1, p. 3.) The Estoppel Certificate did not identify Plaintiff as a tenant. (Opp., Separate Statement, Fact No. 1; Ghassemi Decl., ¶¶4-5; Travillion Decl., Exh. B-1, p. 3.) Defendant also declares that Plaintiff never paid a security deposit. (Opp., Separate Statement, Fact Nos. 3-4; Ghassemi Decl., ¶¶4-5; Travillion Decl., Exh. B at Exh. 1.) Also, neither the Estoppel Certificate from June 2019, nor the Notice of Change in Tenancy from April 2021 naming Plaintiff on the lease, indicate payment of a security deposit. (Opp., Separate Statement, Fact Nos. 3-4; Ghassemi Decl., ¶¶4-5; Travillion Decl., Exh. B at Exh. 1.) Defendant also argues that the amount of the security deposit is in question because the Complaint alleges a deposit of $1,200.00 while the Motion states the deposit was $2,000.00.

Defendant presents contradictory evidence regarding the existence of a security deposit. Although Defendant declares that Plaintiff did not pay a security deposit, they also declare the parties had an agreement to retain the security deposit pending Plaintiff’s application for rent relief. (Opp., Ghassemi Decl., ¶¶11, 21.) Even if Plaintiff is not the one who initially paid the security deposit, Defendant admits there is a security deposit with respect to the property. Next, the opposition contends that Plaintiff waived their rights under Civil Code section 1950.5 in exchange for Defendant’s retention of the security deposit pending the outcome of Plaintiff’s rent relief application because Plaintiff was behind on rent. (Opp., Separate Statement, Fact No. 6; Ghassemi Decl., ¶¶19-21.) The evidence of this waiver is Defendant’s declaration that the parties agreed Defendant would keep the security deposit pending the outcome of the rent relief application. (Opp., Ghassemi Decl., ¶¶19-21.) As pointed out in Plaintiff’s reply, however, waivers of rights under Civil Code section 1950.5 in residential leases are not permitted. (Citing Civil Code section 1953, subd. (a)(1).)

Therefore, Defendant has not demonstrated the existence of triable issues of material fact regarding the alleged violations of Civil Code section 1950.5, subdivisions (f)(1) and (f)(2) by failing to provide Plaintiff with written notice of the pre-moveout inspection and failing to provide Plaintiff with an itemized statement of the proposed deductions two-weeks before the moveout date.

b. Violations of subdivision (g)

Plaintiff also alleges that Defendant violated Civil Code section 1950.5, subdivision (g)(1) because the deposit was not returned within 21 days, and subdivision (g)(2) because no supporting documentation for the deductions was provided. Plaintiff’s evidence demonstrates that no portion of the security deposit was returned, let alone within 21 days of Plaintiff vacating the property. (Motion, Separate Statement, Fact No. 11; Exhs. 4 and 7.) The itemization was not accompanied by any documentation of the deductions. (Motion, Separate Statement, Fact No. 13; Exh. 2, Response No. 5; Exh. 7.)

In opposition, Defendant does not dispute that the entire security deposit was deducted for repairs to the property. (Opp., Separate Statement, Fact No. 10.) Instead, Defendant argues that the deductions were allowed following an inspection on March 12, 2022. (Opp., Separate Statement, Fact No. 10; Ghassemi Decl., ¶26; Padilla Decl., ¶¶5-6.) As discussed above, however, any inspection that occurred did not correct Defendant’s failure to give notice of the initial inspection and to provide Plaintiff with an itemized statement of proposed deductions, as required by Civil Code section 1950.5, subdivision (f). Defendant, therefore, has not shown that they perfected the right to retain part or all of the security deposit.

Regarding documentation of the deductions after the inspection, Defendant declares that the itemized statement was texted to Plaintiff after notice that the rent relief application was approved. (Opp., Separate Statement, Fact No. 13; Ghassemi Decl., ¶25.) Neither the separate statement nor Defendant’s declaration, however, demonstrate that the itemized statement was accompanied by documentation, such as invoices and receipts. (Opp., Separate Statement, Fact No. 13; Ghassemi Decl., ¶25.) Therefore, the opposition does not demonstrate any triable issue of material fact regarding Defendant’s violations of Civil Code section 1950.5, subdivisions (g)(1) and (g)(2).

c. Violations of subdivisions (b) and (e)

Finally, Plaintiff alleges that Defendant violated Civil Code section 1950.5, subdivisions (b) and (e) by deducting the full value of the repaired or replaced items, instead of their depreciated value. These subdivisions prohibit deductions for “ordinary wear and tear” or “the effects thereof.” Plaintiff’s evidence in support of these violations are the itemized statement and his own declaration regarding the value of the items replaced. (Motion, Separate Statement, Fact No. 15; Exh. 2, Response No. 4; Exhs. 4, 7; Heard Decl., ¶22.) This evidence is not sufficient to demonstrate that the amounts deducted by Defendant were for the full value of the items repaired or replaced. Defendant has no burden to demonstrate a triable issue of material fact regarding these violations.

d. Conclusion

In light of the foregoing, Plaintiff has demonstrated that no triable issues of material fact exist regarding Defendant’s violations of Civil Code section 1950.5, subdivisions (f) and (g), and is entitled to summary adjudication of the first cause of action.

2nd Cause of Action for Breach of Lease Agreement

Plaintiff alleges that the parties’ lease agreement included a provision for compliance with Civil Code section 1950.5. However, Plaintiff provides insufficient evidence of this purported lease. The Motion cites only to Plaintiff’s declaration, in which they declare that the lease agreement incorporates Civil Code section 1950.5. (Motion, Separate Statement, Fact No. 17; Heard Decl., ¶25.) The Motion fails to carry Plaintiff’s burden of proof to demonstrate that no triable issues of material fact exist regarding the cause of action for breach of lease agreement.

The request for summary adjudication of the second cause of action is denied.

3rd Cause of Action for Negligence

Plaintiff alleges that by violating Civil Code section 1950.5, Defendant was negligent per se. This arguments fails to understand the negligence per se doctrine, pursuant to Evidence Code section 669, which is not a cause of action separate from negligence.

“The presumption of negligence created by Evidence Code section 669 concerns the standard of care, rather than the duty of care.” (Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419, 430, 98 Cal.Rptr.2d 144.) In order for the presumption to be available, “either the courts or the Legislature must have created a duty of care.” (Ibid.) “[A]n underlying claim of ordinary negligence must be viable before the presumption of negligence of Evidence Code section 669 can be employed.... ‘[I]t is the tort of negligence, and not the violation of the statute itself, which entitles a plaintiff to recover civil damages.’ ” (California Service Station etc. Assn. v. American Home Assurance Co. (1998) 62 Cal.App.4th 1166, 1178, 73 Cal.Rptr.2d 182.)

(Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353.) The elements for a negligence cause of action are duty, breach, causation and damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) Plaintiff has not demonstrated the existence of a duty that arises from Civil Code section 1950.5; the Motion cites no authority for the existence of such a duty. (Motion, p. 15:1-15) “Not all legislative enactments—that is, not all statutes and ordinances— are capable of forming the basis for a duty of care giving rise to a negligence claim.” (Issakhani v. Shadow Glen Homeowners Assn., Inc. (2021) 63 Cal.App.5th 917, 930.)

Therefore, Plaintiff has not demonstrated that no triable issue of material fact exist regarding the negligence cause of action. The request for summary adjudication of the third cause of action is denied.

4th Cause of Action for Conversion

The elements of conversion are (1) Plaintiff's ownership or right to possession of personal property; (2) Defendant’s disposition of the property inconsistent with Plaintiff’s rights; and (3) resulting damages. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) Money cannot be the subject of a cause of action for conversion unless there is an identifiable sum. (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.) Plaintiff alleges conversion of the security deposit based on the facts recited above.

As discussed above, Plaintiff contends that they deposited security of $2,000.00 in connection with the lease agreement. (Motion, Separate Statement, Fact Nos. 1, 3; Heard Decl., ¶¶5-8; Exhs. 4, 7.) While this differs from the amount alleged in the Complaint ($1,200.00), Plaintiff’s evidence is enough to carry their initial burden of proof of an identifiable sum. Nor is Defendant’s argument that a triable issue of material fact exists regarding the amount of the deposit sufficient to overcome Plaintiff’s evidence. The opposition points to no evidence of its own regarding the amount of the security deposit. Defendant also argues that triable issues of material fact exist regarding whether their retention of the security deposit was wrongful but as discussed above, the violations of Civil Code section 1950.5, subdivisions (f) and (g) are undisputed.

Accordingly, Plaintiff has shown that no triable issues of material fact exist regarding the conversion cause of action. The request for summary adjudication of the fourth cause of action is granted.

5th Cause of Action for Unfair Business Practices

Plaintiff’s separate statement includes a fifth cause of action for unfair business practices, which is not alleged in the Complaint. The Court, therefore, disregards this cause of action.

Conclusion

Moving party to give notice.