TENTATIVE RULING

Calendar:    2

Date:          8/5/2022 

Case No: 20 GDCV00601 Trial Date: October 3, 2022  

Case Name: Miller v. 1042 Western Apartments, LLC

MOTION FOR SUMMARY ADJUDICATION

Moving Party:            Defendant 1042 Western Apartments, LLC       

Responding Party: Plaintiff Marcel Miller (No Opposition)      

RELIEF REQUESTED:

Summary Adjudication of the sixth and fourteenth causes of action of the Complaint 

CAUSES OF ACTION: from Complaint   

1) Breach of Contract 

2) Tortious Breach of the Covenant of Quiet Enjoyment 

3) Tortious Breach of the Warranty of Habitability 

4) Statutory Breach of the Warranty of Habitability 

5) Nuisance 

6) IIED 

7) Negligence 

8) Violation of California Civil Code section 789.3 

9) Conversion 

10) Constructive Eviction

11) Violation of California Civil Code 1940.2

12) Violation of Business & Professions Code section 17200 et seq. 

13) Violation of Civil Code section 1950.5

14) Malicious Prosecution *

15) Violation of Glendale Municipal Code section 9.30.035

*Request for Dismissal filed 5/11/22, entered as requested 5/11/22

SUMMARY OF FACTS:

Plaintiff Marcel Miller brings this action against his former residential landlord, defendant 1042 Western Apartment, LLC, alleging that during his tenancy in the subject apartment unit, defendant failed to provide habitable living conditions.  It is also alleged that defendant harassed and made verbal threats to plaintiff in retaliation for plaintiff complaining about the condition of the subject unit, and that plaintiff was forced to vacate the subject unit after a severe flood and missed significant amounts of work. 

The file shows that on May 11, 2022, plaintiff filed a Request for Dismissal, requesting that the clerk dismiss this action without prejudice as to the cause of action for Malicious Prosecution “ONLY.”   The dismissal was entered as requested the same date. 

This motion was filed on May 12, 2022.  

ANALYSIS:

Procedural

Dismissal of Cause of Action for Malicious Prosecution  

As noted above, on May 11, 2022, plaintiff filed a Request for Dismissal, requesting that the clerk dismiss this action without prejudice as to the cause of action for Malicious Prosecution only. The clerk entered the dismissal as requested the same date. 

This motion was filed on May 12, 2022, after the malicious prosecution cause of action had been dismissed.  

CCP § 581 provides, in pertinent part:

“(b) An action may be dismissed in any of the following instances:

(1) With or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial, upon payment of the costs, if any….

(c) A plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial.” 

Once a dismissal is entered, the court loses subject matter jurisdiction over the matter, and has no jurisdiction to consider any matter other than a motion for costs or attorney’s fees, or to set aside the dismissal pursuant to CCP §473.   See Shapelle Industries, Inc. v. Superior Court (2005, 2nd Dist.) 132 Cal.App.4th 1101, 1108, citing Harris v. Billings (  2nd Dist.) 16 Cal.App.4th 1396, 1405 (“Following entry of a dismissal of an action by a plaintiff under Code of Civil Procedure section 581, ‘a trial court is without jurisdiction to act further in the action except for the limited purpose of awarding costs and statutory attorney’s fees.’” (citations omitted)).

The court accordingly has no jurisdiction to consider the motion as it pertains to the malicious prosecution cause of action, which has been appropriately dismissed by plaintiff.

Defendant in the moving papers indicates that plaintiff filed a request for dismissal without prejudice on May 11, 2022, and that defendant brings this summary adjudication motion to eliminate the claims which plaintiff should have dismissed with prejudice.  

Defendant cites no legal authority under which the court may entertain this motion and adjudicate the cause of action on its merits and dismiss it with prejudice after the cause of action has already been formally dismissed voluntarily without prejudice. 

Although not cited by defendant, the general case law on the subject of when a voluntary dismissal can be disregarded was summarized in Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, in which the court of appeal reversed the trial court’s order dismissing an action with prejudice and directing the entry of a new order leaving the voluntarily dismissal as the operative document, in a situation where the dismissal had been entered just before an OSC hearing regarding dismissal based on plaintiff’s failure to appear at a mandatory settlement conference.  The appellate court concluded that inequity itself is not enough to defeat a voluntary dismissal, and that the dismissal must be linked somehow to the statutory requirement that the request for dismissal to be prohibited be made after the “actual commencement of trial,” so that some dispositive resolution of the matter was inevitable. The court of appeal reviewed the cases law and set forth a test for when a voluntarily dismissal could be disregarded: 

“When the dismissal could be said to have been taken

- (a)  in the light of a public and formal indication by the trial court of the legal merits of the case, or

- (b)  in the light of some procedural dereliction by the dismissing plaintiff that made dismissal otherwise inevitable, then the voluntarily dismissal is ineffective.” 

Franklin, at 200 (italics in original).  

Defendant has failed to even attempt to show that there has been any formal indication by the trial court concerning the legal merits of the malicious prosecution cause of action, or that dismissal would be inevitable.  Defendant did not even file this motion for summary adjudication until after the dismissal had been requested and entered.   

Under the circumstances, the court does not consider the motion as it pertains to the dismissed cause of action for malicious prosecution. 

No Opposition 

With respect to the remaining issue, concerning whether plaintiff will be able to establish the elements of the cause of action for IIED, the cause of action has not been dismissed, and remains pending before the court for purposes of summary adjudication.

Plaintiff has failed to file or serve any timely papers in opposition to the motion.

CCP §437c(b)(3) sets forth the specific requirements for opposition papers, including the requirement of the filing of a separate statement of material facts.   This subdivision provides: “Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.”  The motion brought by defendant as to Issue No. 2 is granted on the ground there has been no separate statement filed. 

Substantive 

Issue No. 2 There are no triable issues of fact which establish the Fourteenth Cause of Action for Intentional Infliction of Emotional Distress

Under CCP § 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if the party has shown that 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.  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 the cause of action or a defense thereto.”

CCP § 437c(f)(1) provides that “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.”

Defendant 1042 Western Apartments, LLC seeks to establish that the plaintiff will be unable to establish one or more elements of plaintiff’s cause of action for IIED.   While the motion refers to the cause of action for IIED as the “fourteenth” cause of action, it is the sixth cause of action in the Complaint.  

To establish a cause of action for Intentional Infliction of Emotional Distress, plaintiff must plead and prove the following essential elements: Extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, emotional distress; plaintiff suffered severe or extreme emotional distress; defendant’s outrageous conduct actually and proximately caused emotional distress; the conduct was directed to plaintiff.  Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.

Defendant argues that plaintiff will be unable to recover on his claims that the false reporting of an assault by defendant’s employee Yepes constituted IIED because the making of a police report, even a false report, is subject to privilege under Civil Code section 47(b).  The complaint, however, is based largely on allegations that defendant maintained the premises in an uninhabitable condition, refused to repair the property, and maliciously disposed of and destroyed plaintiff’s personal property.  [Complaint, paras. 92, 93].  This conduct would not be subject to privilege, and the motion on this ground accordingly does not dispose of the entire cause of action.  The motion is not granted on this ground. 

Defendant also argues that plaintiff will be unable to establish the element that plaintiff suffered severe or extreme emotional distress.  Specifically, defendant argues that in order to establish an IIED cause of action, the distress must be severe, defined as “emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.”   Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.     

Defendant argues that in written discovery, plaintiff identified only one provider from which he sought mental health services, Better Help, which it was later determined to be Better Health.   [Ip Decl. Ex. E, Response to Form Int. 6.4].  In his deposition, plaintiff was asked, “Did you go to Better Health at all for anything related to this case?” and plaintiff answered, “No.”  [Ip Decl., Ex. F., Miller Depo., p. 203].  In follow up questioning, he indicated that Better Health was not related to this case, or the conditions of the premises, but girlfriend issues.   [Miller Depo., p. 203: -22].   

This is sufficient to support a reasonable inference that plaintiff will be unable to establish severe emotional distress caused by defendant at the level required to support an IIED claim in this matter, shifting the burden to plaintiff to raise triable issues of material fact.   Plaintiff has failed to oppose this motion, so has failed to meet plaintiff’s burden.  The motion also is granted on its merits on this ground.

RULING:

[No Opposition]

Motion for Summary Adjudication by Defendant 1042 Western Apartments, LLC:

Issue No. 1:  There are no triable issues of fact which establish The Sixth Cause of Action for Malicious Prosecution

Motion is MOOT, and not considered by the Court. 

The file shows that on May 11, 2022, plaintiff filed a Request for Dismissal requesting that the action be dismissed without prejudice as to the cause of action for Malicious Prosecution only, which dismissal was entered the same date.  This motion as to the cause of action for malicious prosecution, filed after the dismissal was entered, is accordingly moot, as the cause of action has been dismissed.  

The Court notes that the malicious prosecution cause of action was identified in the complaint as the fourteenth cause of action, not the sixth cause of action.   

Issue No. 2 There are no triable issues of fact which establish the Fourteenth Cause of Action for Intentional Infliction of Emotional Distress

UNOPPOSED Motion is GRANTED, procedurally and on its merits. 

Procedurally, plaintiff has failed to file any papers opposing this motion.  Accordingly, plaintiff has failed to comply with the statutory requirement of filing a separate statement addressing each material fact raised in the moving papers, and the motion is granted pursuant to CCP §437c(b)(3). 

Even if the court were to consider the substance of the motion, it would be granted. Defendant has submitted evidence supporting a reasonable inference that plaintiff will be unable to establish the essential element of his cause of action for IIED, that is, that conduct of defendant caused plaintiff to suffer severe emotional distress.   [See UMF No. 9, and evidence cited; Ip Decl. Ex. E, Response to Form Int. 6.4; Ex. F, Miller Depo., p. 203].

Plaintiff has failed to oppose this motion, or to meet plaintiff’s burden of raising triable issues of material fact.  Without sufficient evidence that plaintiff suffered severe emotional distress, plaintiff will be unable to establish his IIED cause of action against defendant.  

The Court notes that the IIED cause of action was identified in the complaint as the sixth cause of action, not the fourteenth cause of action.   

 GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.