Judge: Mark H. Epstein, Case: 21STCV36141, Date: 2023-02-01 Tentative Ruling

Case Number: 21STCV36141    Hearing Date: February 1, 2023    Dept: R

This is a troubling case.  In its earlier iteration, plaintiff Shoemaker sued her landlord.  She was originally representing herself, albeit with aid from a paralegal.  She was later represented by counsel who stated that plaintiff had issues such that the appointment of a Guardian ad Litem was needed.

In that earlier case, the defense raised a significant statute of limitations argument.  Although the court initially sustained the demurrer with leave to amend, plaintiff amended and the demurrer was then overruled.  At issue was when plaintiff discovered her injury.  (The question at the time, the court believes, was not when the injury arose, but rather tolling due to plaintiff’s later discovery of it.)  Plaintiff argued that she did not discover the injury—or at least the most important aspects of it—until she saw her physician who noticed that her ears were bleeding and deduced a potential cause.  At first, the doctor’s visit and diagnosis was too early to cure the statute of limitations problem.  But in a later (and unverified) version of the complaint, plaintiff stated that the visit actually occurred later than originally stated.  The court rejected defendant’s “sham pleading” argument because the date of the visit was so easy to verify and plaintiff stated that she had checked and now knew the actual date.

Defendant then did its own checking as to the date.  Defendant claims to have learned that the original date was the correct one and thus the complaint was untimely and plaintiff’s contrary assertion was a deliberate lie.  Defendant brought a summary judgment motion but before it was heard, plaintiff (now represented by counsel) dismissed the action without prejudice.

Shortly thereafter, plaintiff re-filed the action as a DOE matter.  Defendant moved to relate this case to the prior case, arguing that the DOE allegation (plaintiff was the DOE) was designed to allow plaintiff to go judge shopping.  At a hearing, plaintiff (now represented by different counsel) denied any such intent and stated that she did not object to relating the cases.  And, bolstering plaintiff’s assertion that the case was not an attempt to change judges, no 170.6 motion was filed.

It is with that background that the court considers the instant motion.

Plaintiff filed this landlord-tenant action against defendants Westside Habitats, LLC, Xenon Investment Corp., HC2 Investments, LLC, Ben Osbun, and Rohit Mehta (collectively “defendants”).  According to the operative First Amended Complaint (“FAC”), plaintiff is physically disabled due to a severe neurological disorder induced by a traumatic brain injury.  (FAC, ¶1.)  Plaintiff states that due to her disability, she is extremely sensitive to loud and excessive noises.  (Ibid.) Defendants allegedly all had knowledge of her disabilities.  (Id. at ¶¶2-7.)  In November 2014, plaintiff leased an apartment at 1223 Federal Avenue in Los Angeles.  (Id. at ¶12.)  Plaintiff states that in or around January 2015, she provided defendants with proof of her disability including doctor notes regarding her disability so she could have a service dog with her in the apartment.  (Id. at ¶13.)

On or around February 28, 2017, plaintiff signed a new lease agreement for another unit. (FAC, ¶14.)  Plaintiff contends she was induced to enter into the lease with the promise that she would have a larger balcony and more windows in the new unit.  (Id. at ¶15.)  Plaintiff claims she began occupying the unit in or around March 2017.  (Ibid.)  Defendants allegedly knew that in April 2017, they would begin an extensive construction project at the building and would set up a construction workshop directly below her unit.  (Id. at ¶¶15, 22.)  Plaintiff asserts her disability was exacerbated by this construction project and that defendants deliberately did not give her prior notice of this issue, even when she entered into the new lease.  (Id. at ¶¶16-17.)  Plaintiff claims that throughout the duration of the “nearly two years” long construction, she was continuously exposed noise pollution, dust, debris, and damaging chemicals that contributed to her hearing loss, a serious ear infection, and severe emotional distress.  (Id. at ¶19.)  Because the workshop was below her unit, she was forced to endure near constant hammering, grinding, and drilling, which affected her sleep patterns and aggravated her underlying health conditions.  (Id. at ¶23.)  Plaintiff states that due to the ongoing construction and location of the workshop she developed bilateral tinnitus, loss of neurosensory functions, misophonia, and partial hearing loss due to nerve damage.  (Id. at ¶¶24, 26.)

The construction purportedly exposed plaintiff to high concentrations of particulate matter and while workers had protective gear, none was provided to her.  (FAC, ¶26.)  Plaintiff alleges she suffered from an ongoing respiratory illness and ear infection and her physician attributes that to the constant exposure to the toxic metallic dust.  (Ibid.)  Plaintiff states she requested an accommodation and transfer to another unit throughout the duration of the two-year construction but defendants ignored those requests.  (Id. at ¶¶27-28.)  Plaintiff claims that the property suffered from other habitability issues as well.  (Id. at ¶30.)  Defendants also allegedly engaged in a pattern of harassment and discrimination during her tenancy, including but not limited to moving her parking space close to a dumpster and renting out a unit they offered her as an accommodation to another tenant.  (Id. at ¶¶32-38.)  Plaintiff vacated the premises on October 4, 2019.  (Id. at ¶40.)

Plaintiff asserts the following causes of action: (1) breach of contract against all defendants; (2) breach of implied warranty of habitability/tenantability against all defendants; (3) breach of implied warranty of quiet enjoyment against all defendants; (4) retaliatory acts against Osbun and Mehta; (5) breach of the covenant of good faith and fair dealing against all defendants; (6) private nuisance against all defendants; (7) constructive eviction against all defendants; (8) unlawful housing practices against all defendants; (9) failure to provide reasonable accommodations against all defendants; (10) discrimination in housing accommodations against all defendants; and (11) violation of the Unruh Civil Rights Act against all defendants.  Currently before the court is defendants’ motion for judgment on the pleadings.  Plaintiff opposes.

Defendants’ request for judicial notice is GRANTED. However, the court does not judicially notice the truth of the matters stated therein.

The thrust of defendants’ argument focuses on the earlier case. As an initial matter, the court does not believe the res judicata argument has merit at this pleading stage.  Defendants themselves acknowledge (correctly) that voluntary dismissal without prejudice generally does not constitute a final judgment on the merits for these purposes.  “By definition, a voluntary dismissal without prejudice is not a final judgment on the merits.  (Associated Convalescent Enterprises v. Carl Marks & Co. (1973) 33 Cal.App.3d 116, 121; cf. Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 823.)  Therefore, we may not accord the Appellate Division's ruling collateral estoppel effect.”  (Syufy Enterprises v. City of Oakland (2002) 104 Cal.App.4th 869, 879, parallel citations omitted.)  Defendants nonetheless ask that the court treat the earlier dismissal as a final judgment on the merits because plaintiff only did so to avoid their pending motion for summary judgment and avoid complying with the court’s order to submit documents regarding her incorrect testimony.  That argument assumes that plaintiff dismissed her action for those reasons.  This, however, is a motion for judgment on the pleadings.  Nowhere in the FAC or judicially noticeable documents is there a statement indicating that plaintiff dismissed her action for these reasons.  Further, the authority cited by defendants on this issue does not concern the res judicata effect of a voluntary dismissal on the merits with a pending motion for summary judgment.  Wells concerns a dismissal after a demurrer was sustained and Hartbrodt concerns a dismissal where there was a pending motion for terminating sanctions due to discovery misconduct and whether the trial court could reject that dismissal.  The violations of the Local Rules and California Rules of Court are also not bases upon which to grant this motion.  The court cannot accept those arguments.  In other words, while the court is certainly aware of the so-called “writing on the wall” doctrine, which bars a party from dismissing an action after the court has essentially ruled for the purpose of avoiding res judicata, the court cannot say with confidence that the rule applies here given that this is a pleading motion.  That is especially so in that to the extent that the argument in the earlier case had merit, it still does.  The court would prefer to reach its conclusion based on the merits rather than on a procedural doctrine.

This leaves defendants’ argument that the action is barred by the statute of limitations. “‘The defense of statute of limitations may be asserted by general demurrer if the complaint shows on its face that the statute bars the action.’  [Citations.] ¿There is an important qualification, however: ‘In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.’ [Citations.]” ¿(E-Fab., Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315-1316.)  In evaluating whether a claim is time-barred, the court must determine (1) which statute of limitations applies and (2) when the claim accrued.  (Id. at p. 1316.)  The same is true regarding a motion for judgment on the pleadings.

Defendants’ argument is predicated on the fact that plaintiff, in her prior action, pled facts that rendered her claims time-barred.  They point out that she pled that she: discovered her injuries in August 2017 for the personal injury, emotional injury, unlawful housing, and Unruh Act claims, sent a letter to defendants in February 2018 regarding the construction issues for the habitability and quiet enjoyment claims, alleged that the March 2017 lease was breached from the very beginning for the bad faith claim, and pled that the construction ended in November 2018 for her private nuisance and constructive eviction claims.  Those dates, they argue, are the dates her claims accrued and her filing of this action in October 2021 renders these various claims time-barred.

The problem with this argument is that plaintiff’s current claims are not solely predicated on the construction issues and resultant injuries, which is what defendants focus upon.  Instead, her claims are also partly predicated on habitability and harassment, which are distinct from the construction issues.  Considering plaintiff alleges she moved out on October 4, 2019, it is reasonably inferable that these wrongful acts continued up until that date.  In other words, the court agrees that the continuing violation doctrine can apply.  An easy illustration is the claim of habitability.  Whenever it was that defendants’ conduct first rendered the tenancy allegedly uninhabitable, the duty of providing habitable space continued throughout the lease’s life.  Every day that the duty was breached was a new violation.  That is not to say that the statute of limitations becomes irrelevant.  Under many circumstances, damages can only be recovered for violations within the statutory period.  But that hardly immunizes a breach of contract or continuing tort thereafter.

Further, the court notes that paragraph 30 of the FAC lists the various habitability issues, including an exploding fireplace, mold, and no smoke detector.  Paragraphs 32 to 39 concern harassment and retaliation by defendants, including moving her parking spot and an invasion of her privacy by seeking her medical records.  (As far as the court can tell, these allegations were not raised in the prior action or at least not all of them were.)  These allegations are incorporated into each cause of action by reference and are an actionable basis for all of the causes of action: the first cause of action for breach of contract (FAC, ¶¶45-48); second cause of action for breach of the warranty of habitability (¶¶52-56); third cause of action for breach of the implied warranty of quiet enjoyment (¶¶61-67); fourth cause of action for retaliatory acts (¶¶70-73); fifth cause of action for breach of good faith and fair dealing (¶¶81-82); sixth cause of action for private nuisance (¶84); seventh cause of action for constructive eviction (¶¶95-98); eighth cause of action for unlawful housing practices (¶104); ninth cause of action for failure to provide reasonable accommodations (¶111); tenth cause of action for discrimination in housing accommodations (¶¶118-119); and eleventh cause of action for violation of the Unruh Act (¶¶126-127).

Even if portions of those claims might be barred, the court would not sustain the motion for judgment on the pleadings.  Such a motion is akin to a demurrer.  And the law is well settled that “a general demurrer does not lie as to a portion of a cause of action, and if any part of a cause of action is properly pleaded, the demurrer will be overruled.  (Campbell v. Genshlea (1919) 180 Cal. 213, 217.)”  (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452, parallel citations omitted.)  Defendants have failed to address when these new claims of actionable conduct that presumably continued until October 2019 accrued.  Their argument, even if successful, does not dispose of the entire claim.

As an aside, the court recognizes that some of these causes of action may be time-barred if the court uses the November 2018 date as the end of construction or the October 4, 2019 date of move out.  But defendants failed to raise these arguments to all of the alleged wrongful acts and the court will not create these arguments for them.  (See Quantum Cooking Concepts, Inc. v LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 931, 933.)  Although the court is not disposing of those arguments at this time, plaintiff should be aware that the arguments remain out there and are likely to be addressed in a subsequent motion, most likely for summary judgment or summary adjudication.  When properly raised, they will be ripe for adjudication and if the motion is granted, there will likely be no leave to amend.  The court does not intend, by this decision, however, to prejudge future motions one way or the other.

In reply, defendants argue that certain facts alleged in the prior action constitute judicial admissions. The court disregards this argument. It is raised for the first time in reply.  (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [refusing to consider new arguments in reply in the context of appellate briefs].)  Even if this were not an issue, as the court previously explained, the causes of action here are also predicated on at least some issues that do not concern the construction.  Those other habitability concerns and acts of retaliation could have continued until the date plaintiff moved out, which she alleges is October 4, 2019.  (FAC, ¶40.)  Defendants have not properly established that the claims are fully time-barred as a matter of pleading.

Because defendants have failed to address the claims as pled and adequately identify the date of accrual, the motion is DENIED.