Judge Michael Shultz, Case Number: 22STCV04358, Date: 2024-12-13 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call.

[TENTATIVE] ORDER DENYING MOTION BY DEFENDANT, KAPE PROPERTY MANAGEMENT, FOR SUMMARY JUDGMENT, BUT GRANTING IN PART AND DENYING IN PART THE MOTION FOR SUMMARY ADJUDICATION OF ISSUES

This action arises from alleged uninhabitable conditions of a residential unit (“residence”) leased by Plaintiff on September 14, 2013, from Defendant, Ernst Hacker (“Landlord”), alleged to be the property owner, and from Defendant, Kape Property Management, Inc. (“Kape”) the alleged property manager of the residence. The property was located at 718 North Hayworth Avenue, Los Angeles (“Hayworth property”). Plaintiff alleges Defendants constructively evicted and/or otherwise forced Plaintiff to vacate the premises because of the uninhabitable conditions that allegedly arose from events beginning with a ceiling collapse on February 22, 2020 until Plaintiff left the premises on December 22, 2020. Plaintiff alleges 10 causes of action arising from these facts.

Kape moves for summary judgment or adjudication of all 10 causes of action on grounds Defendant is not the proper party for any of the claims, as it became property manager in 2020, and did not enter into any assignment or delegation with regard to existing leases. Hacker never delegated to Kape the owner’s duty to maintain the premises in a habitable condition. All claims asserted by Plaintiff require the existence of a contractual relationship. Kape argues it is undisputed that it forwarded all complaints of uninhabitable conditions to Hacker, whose duty it remained to remedy the conditions. Kape argues that the undisputed facts warrant judgment in its favor, as more specifically described below.

The separate statement is defective. Defendant must specifically refer to documentary evidence by page and line number. “Exhibit 2” is 51 pages. The court should strike it.

Plaintiff concedes that Kape is not a party to the contract-based causes of action, which are based on Plaintiff’s lease agreement with Hacker. Plaintiff has filed a motion for leave to file a first amended complaint removing Kape from these claims. The opposition is limited to the remaining tort claims, for which Kape bears liability.

As to the remaining claims, Plaintiff argues Kape, as the landlord’s agent, is liable for the claims asserted by Plaintiff. Kape’s contention that it does not owe a duty for the obligations alleged by Plaintiff is based on a “self-serving” declaration claiming that Hacker orally agreed that Kape’s responsibilities were limited, none of which was disclosed to tenants. Triable issues remain as to Kape’s duties and obligations.

Plaintiff objects to the Srovolitz declaration as it lacks any personal knowledge of the facts, which Mr. Srovolitz admitted at deposition. The declaration rests on inadmissible hearsay.

Kape argues its Separate Statement is proper, and evidence submitted is admissible. No triable issues of fact remain.

Summary judgment is proper “if all the papers submitted show that the material facts are undisputed and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c subd. (c).) The moving party’s burden is to show that based on the undisputed facts “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action." (Code Civ. Proc., § 437c subd. (p)(2).) If that threshold burden is met, the burden shifts to the opposing party to show a triable issue of one or more material facts. (Code Civ. Proc., §437c(p)(1).)

A party may move for summary adjudication “as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, [or] that there is no merit to a claim for [punitive] damages.” (Code Civ. Proc., § 437c subd. (f)(1).) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc., § 437c. subd.(f)(1).)

The court applies the three-step analysis to motions for summary judgment or adjudication: (1) identify the issues framed by the pleading, (2) determine whether the moving party established facts which negate the opponents’ claim, (3) if the moving party meets its threshold burden of persuasion and the burden shifts, determine whether the opposing party has controverted those facts with admissible evidence. (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.)

The court need only rule on those objections to evidence that the court deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion are preserved for appellate review. (Code Civ. Proc., § 437c subd. (q).) Accordingly, the court will address the evidentiary objections submitted by both parties to the extent they relate to evidence that are material to the court’s ruling.

The court grants Plaintiff’s request for judicial notice of Los Angeles Ordinance No. 186585; Code Civ. Proc., § 1179.03(b)(2) and Civil Code § 1946.1(b). (Evid. Code, § 452(b).) Judicial notice of the death record for Defendant Hacker is granted. (Evid. Code, § 452(c).)

1) Adjudication of the contract-based causes of action (second, third, sixth,) is GRANTED.

Plaintiff concedes that Kape is not a proper party to the contract-based claims and will move for leave to amend to remove Kape from those claims. Plaintiff opposes only the tort claims. (Opp. 2:26-28.) As Plaintiff does not oppose the motion to these claims, the court grants the adjudication as to the claims for (2) breach of contract; (3) breach of the implied covenant of good faith and fair dealing; (6) breach of the implied warranty of habitability.

2) The parties do not dispute the material facts that form the context of Plaintiff’s claims.

Plaintiff entered into a lease agreement with Hacker for the residence at issue (UF 1.) Plaintiff’s complaints began on February 22, 2020, when construction began in the adjacent apartment causing disruption and falling pieces of the ceiling that struck Plaintiff in the head (UF 2). Disrputive construction issues continued through 2020 including odors emanating into her apartment that made Plaintiff feel ill (UF 3). Construction workers began harassing Plaintiff later in the year (UF 4.) Plaintiff complained about messages containing legal threats action for failing to pay rent (UF 5.) [1]

Relying on Civil Code § 3479, Plaintiff alleges that Defendants created a nuisance by employing unlicensed contractors to perform unpermitted demolition at the property, failing to rectify reported gas lease at the property and premises, and by failing to ameliorate the conditions. (FAC ¶ 55-56.) Section 3479 defines a nuisance “as anything injurious to health” or is “indecent or offensive to the senses” that interferes with the comfortable enjoyment of life or property." (Civ. Code, § 3479.)

Defendant argues that the only parties who can be liable for a nuisance are the parties who maintain, create or assist in creating the nuisance. (Kaura v. Stabilis Fund II, LLC (2018) 24 Cal.App.5th 420, 434.) Defendant contends that Hacker hired the construction workers, and Kape did not assume authority or control over the construction workers. All authority was retained by Srovolovitz. (DSS 10.) The only evidence in support of this contention is the declaration of Noam Srolovitz, who is the managing agent for Kape. (Def. COE, Ex. 3).

Mr. Srolovitz contends Kape was not responsible for the construction at issue because Kape had an oral agreement with Hacker to take on limited responsibilities to handle repairs and to field resident complaints. (DSS 6, Srolovitz decl). Defendant refers to Ex. 4, which is not included in the compendium. Defendant relies only on Mr. Srovolovitz, who declares the oral contract limited Kape’s property management duties, and that Hacker retained the duties to keep the properties habitable. (Srovolovitz decl. ¶¶ 3-4.)

Whether Kape’s duties were limited is disputed by Plaintiff’s evidence (P’s COE, Ex. 1, letter to all residents of 2/24/20.) The letter introduced Kape as the new property manager, advised how to make maintenance requests, and submit rent and other payments. Nothing in the letter limits Kape’s duties and obligations owed to Hacker as the new property manager.

The written contract between Hacker and Kape dated April 27, 2021, gave Kape the “exclusive right to operate and manage” the Hayworth property, including authority to “make and/or cause to be made and/or supervise repairs, maintenance, improvements, alterations, and decorations to the property”; and to contract, hire and supervise and/or discharge persons required for the operation and maintenance of the property. (D’s COE Ex. 3(A).) The written contract disputes Kape’s contention that they did not assume any kind of authority or control over the construction workers with regard to hiring, firing, providing direction or scope of work, among other things, notwithstanding Mr. Srolovitz’s declaration to the contrary

Accordingly, Kape’s responsibility for the construction complained of remains in dispute. (PSS 6, 8, 10, 11, 13, 14.)

Plaintiff alleges that at common law and pursuant to Civil Code §§ 1941 and 1941.1 Defendants owed a duty to Plaintiff to manage, operate and/or maintain the premises. Defendant argues that as a property manager, it did not owe a duty to Plaintiff under the factors set forth in Rowland v. Christian 69 Cal.2d 108 and Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903.

Kape argues that because Kape was limited to responsibilities for repair, maintenance, general complaints, Kape was not given contractual authority to manage, hire, fire, or otherwise supervise construction workers. Kape maintains it was more of a “customer service agent.” (Mot. 23:21-23.) Since its relationship with Hacker was so limited, Kape did not owe a duty to Plaintiff as a tenant since Kape’s oral agreement with the Hacker limited the scope of its responsibilities and was not intended to affect the Plaintiff with respect to construction workers.

Rental agents such as Kape owe a duty of ordinary care towards the tenant “because the transaction between the rental agent and the landowner was clearly intended to affect the tenants, and because harm would be foreseeable to the tenants if the rental agent did not properly perform his duty." (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 930–931.)

Defendant relies on the identical material facts offered in support of the nuisance claim to argue that its contract with Hacker was limited and did not include a duty to supervise the construction workers. The material facts in support of this contention are disputed. (PSS 6, 8, 10, 11, 13, 14.)

Defendant offers other facts that appear to establish it satisfied the duty owed to Plaintiff by referring her complaints to Hacker about loud banging , construction schedules and drinking on the premises. (PSS 15, 18.) Whether Kape’s handling of Plaintiff’s complaints were sufficient to satisfy its duty is a triable issue as this depends on the scope of Kape’s responsibilities, is disputed.

5) Issue 5 – Summary adjudication of breach of statutes and Issue 7: Breach of the covenant of quiet enjoyment is GRANTED.

Plaintiff alleges that pursuant to Civ. Code, § 1941 and 1941.1, and in the absence of an agreement to the contrary, dwellings are required to be tenantable. A dwelling is untenantable if it meets any of the criteria under Civil Code § 17920.3. (FAC ¶ 75-76.) Based on allegations previously alleged, Defendants breached their duty under these code sections.

Kape argues that the statutes on which these claims are based, including Civil Code section 1927 (for quiet enjoyment), require the existence of a lease contract, and therefore, Defendant is not a proper party to these claims. The statute explicitly imposes the duty on the lessor, and Mr. Hacker retained the duty to keep the premises habitable. Kape argues that if the duty fell on Kape, Kape responded to Plaintiff’s complaints and forwarded the complaints to Hacker as needed. Kape was not given notice of a gas leak in a manner that could be remedied.

Plaintiff contends that other code sections applicable to residential dwellings define “landlord” to include their agents. Whether Defendant was responsive to Plaintiff’s complaints, assuming it did owe a duty, Defendant relies on Mr. Srolovitz’s declaration which is contrary to his deposition testimony, wherein Mr. Srolovitz could not recall and could only attest as to what he would have done. Plaintiff contends none of these facts are supported by the evidence.

Civil Code § 1941 expressly states that a lessor has the obligation to put a dwelling in a condition fit for human occupation. (Civ. Code, § 1941.) Section 1941.1 defines an untenantable building. (Civ. Code, § 1941.1). Quiet enjoyment is owed by the “letter” and is implied in the lease contract. (Civ. Code, § 1927 [“An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same."].)

Plaintiff argues that other sections refer to a landlord or his agent citing Civil Code § 1980 and 1941.3. However, Section 1980 imposes liability on a landlord or his agent with respect to the disposition of personal property. (Civ. Code, § 1980.) Section 1941.3 identifies affirmative duties owed by a landlord or his agent to install and maintain dead bolt locks, operable window security, and locking mechanisms on exterior doors that comply with applicable fire and safety codes. (Civ. Code, § 1941.3.)

These statutes do not apply to the duty to make a dwelling tenantable or the duty of quiet enjoyment. The statutes are instructive, however, in that the Legislature could have included “agents” but chose not do so. As there is no dispute that Kape is not a landlord on whom liability is imposed, the motion for summary adjudication is GRANTED as to these causes of action.

Plaintiff alleges that Defendants owed Plaintiff a duty of habitability which is implied in Plaintiff’s tenancy and the lease agreement. Defendants had actual and constructive notice of the uninhabitable conditions and refused to adequately abate and/or repair the conditions. (FAC ¶ 81-82.)

Defendant argues that this cause of action requires the existence of a landlord-tenant relationship, and therefore, it is not a proper party. The duty to maintain the premises in a habitable condition was owed by hacker. (DSS 11.)

The warranty of habitability is implied in a lease agreement. (Green v. Superior Court (1974) 10 Cal.3d 616, 629 ["… modern conditions compel the recognition of a common law implied warranty of habitability in residential leases."].) While a common law claim for breach of the implied warranty is in addition to Civil Code § 1941, the duty is implied in residential lease agreements. (Green 631.)

Plaintiff appears to have subsumed this cause of action in her discussion of her statutory claims for breach of the implied warranty but offers no persuasive authority that the duty is extended to property managers. Accordingly, adjudication is granted as to this cause of action for the same reasons as Issue 5.

Plaintiff alleges that as a result of Defendants’ conduct, she was forced to and did vacate the premises on December 22, 2020. (FAC ¶ 93.)

Kape improperly asserts that this cause of action is based only on the alleged gas leak that Plaintiff reported but was not remedied by Defendants. Plaintiff incorporates all allegations affecting her tenancy into this cause of action. For this reason alone, summary adjudication of this cause of action is denied. Kape argues that the proper party for this claim is Hacker, not Kape, and that the finding of a “red tag” gas leak does not result in lease termination.

Defendant does not cite any authority for the proposition that only landlords are liable for acts that cause the constructive eviction of a tenant. A constructive eviction is any disturbance of the tenant's possession by the lessor or at his procurement ... which has the effect of depriving the tenant of the beneficial enjoyment of the premises, amounts to a constructive eviction, provided the tenant vacates the premises within a reasonable time. [Citations.]’ [Citations]. The Supreme Court stated in Standard Live Stock Co. v. Pentz (1928) 204 Cal. 618, 625, 269 P. 645 ... that ‘the covenant of quiet possession in a lease is not breached until there has been an actual or constructive eviction" ( Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1300). Without more, Kape has not established it cannot be liable for this claim.

8) Issue 9: intentional infliction of emotional distress. Summary Adjudication is DENIED.

Plaintiff incorporates the preceding allegations to support this claim. To prevail on a claim for intentional infliction of emotional distress, plaintiff must allege facts showing (1) extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing emotional distress, (2) that plaintiff suffered severe or extreme emotional distress, and (3) actual and proximate causation. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)

Kape improperly isolates the Defendants’ conduct on which this claim is based to issuing legal notices for late rent as the sole basis for this claim. Plaintiff’s alleged claims go beyond legal notices for late rent. (FAC ¶ 81). Plaintiff adds additional bases for the claim to include the Defendants’ failure to inspect despite promises to do so and failure to abate conditions of which Defendants had actual or constructive notice (FAC ¶ 82). The court cannot grant partial motions for summary judgment or adjudication.

Defendant’s burden on summary judgment is to challenge all theories of liability raised by Plaintiff and challenge each factually. Defendant’s burden on summary judgment is to identify and respond to all theories of liability reflected in the complaint, "even if not separately pleaded.” (Lopez v. Superior Court (1996) 52 Cal.Rptr.2d 821.)

9) Issue 10: Negligent infliction of emotional distress. Summary adjudication is DENIED.

Plaintiff incorporates all facts to support this claim. Defendant argues that the facts do not support the claim because Plaintiff is not a “direct victim” or a “bystander” which is essential to this claim. Defendant is wrong.

There are two theories under which a plaintiff may recover: (1) as a bystander or (2) as a direct victim.( Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) In “bystander cases,” the question of duty is analyzed in “circumstances in which a plaintiff seeks to recover damages as a percipient witness to the injury of another.” (Christensen, supra, 54 Cal.3d at p. 884, 2 Cal.Rptr.2d 79, 820 P.2d 181.) These cases “all arise in the context of physical injury or emotional distress caused by the negligent conduct of a defendant with whom the plaintiff had no preexisting relationship, and to whom the defendant had not previously assumed a duty of care beyond that owed to the public in general.” (Ibid., emphasis added.) In other words, bystander liability is premised upon a defendant's violation of a duty not to negligently cause emotional distress to people who observe conduct which causes harm to another." (Burgess at 1072–1073 [italics in original].)

Based on the allegations of the complaint, Plaintiff is not a bystander; she alleges she is a direct victim of the misconduct that caused her constructive eviction. (Burgess at 1075 “[A claim for negligently inflicted emotional distress will lie, notwithstanding the criteria imposed upon recovery by bystanders, in cases where a duty arising from a preexisting relationship is negligently breached. [citations omitted] In fact, it is this later principle which defines the phrase "direct victim."].) Kape misconstrues this claim as one alleging “bystander” negligent infliction of emotional distress. Plaintiff alleges Kape breached an independent duty owed to Plaintiff as property manager charged with the duty to ameliorate the harm caused by the ongoing construction on adjacent premises (among other things). Accordingly, Kape’s argument does not consider the material allegations of the complaint.

Based on the foregoing, the motion for summary judgment is DENIED. The alternative motion for summary adjudication is granted in part as follows:

The court GRANTS adjudication in Kape’s favor of the contract-based causes of action which Plaintiff did not oppose (second, third causes of action).

The court GRANTS summary adjudication of the following: Issue 5: breach of statutes; Issue 6: breach of warranty of habitability; Issue 7: breach of the covenant of quiet enjoyment.
In all other respects, the motion for summary adjudication is DENIED.

[1] “UF” is “undisputed fact.” “DSS” refers to Defendant’s separate statement of facts. “PSS” refers to Plaintiff’s separate statement of facts in opposition. “COE” refers to Compendium of Evidence.