Judge Ralph C. Hofer, Case 20STCV41686 2022-10-21 Tentative Ruling

Plaintiff Theresa Friedrick alleges that in June of 2015, defendants Redrock NoHo Residential, LLC (“Redrock”) and/or Redwood Property Services (“Redwood”) and Redwood Urban, LLC (“Redwood Urban”) leased an apartment unit to plaintiff in their building, the Lofts at NoHo Commons (“the Lofts”), located in North Hollywood. Plaintiff alleges that the very next day, plaintiff noticed a strange odor in the apartment, and reported the smell to Adam Rismanchi, a representative of Redrock, Redwood or Redwood Urban, who assured plaintiff nothing was wrong and said he would look into it. Meanwhile, plaintiff began to use an air filter to manage the odor in her apartment.

Near the end of 2016, defendants NoHo Commons Pacific Owner, LLC (“NoHo Commons Pacific”) and Polaris Property Management, LLC (“Polaris”) purchased and took over as owner and property manager for the Lofts. During 2017, the Lofts underwent painting and construction, and for two months plaintiff’s windows were covered with paper, restricting access to fresh air to mitigate the odor. Plaintiff alleges that she continued to make multiple maintenance requests to defendants NoHo Commons and Polaris and continued to seek and receive medical treatment for various ailments.

In May of 2020, plaintiff was told for the first time that she may be suffering from exposure to toxic mold. At the end of May 2020, plaintiff requested and received tests for mold in her apartment and for mold exposure to herself, and in June of 2020, it was professionally determined that plaintiff was suffering from exposure to mold toxicity and that there was mold beneath the floorboards of the apartment. Plaintiff put defendants NoHo Commons Pacific and Polaris on notice and was told a representative would contact her the following Monday. After retaining a restoration company to check the apartment, defendants did not contact plaintiff again until four days later, to arrange to relocate her to a new apartment. In the meantime, plaintiff had to find another place to live and sleep. Further, plaintiff expressed concern to NoHo Commons Pacific and Polaris over the move because her medical treaters had instructed her not to cross-contaminate her property with mold contaminated property before her property could be properly treated. Plaintiff alleges that she hired a company to decontaminate her property, and her couch, bed, pillows, and linens were identified as unsalvageable.

The First Amended Complaint alleges that after the remediation work was conducted, plaintiff was scheduled to move back into her apartment on July 8, 2020, but when plaintiff entered the apartment there was dust in the apartment and spots on the floor, a deformed floorboard, and toxic fumes with the smell of formaldehyde in the apartment which was so overwhelming it was painful for plaintiff to remain there.

Plaintiff alleges that sometime after plaintiff discovered she was suffering from toxic mold exposure, she discovered that a prior tenant of plaintiff’s apartment also suffered from toxic mold exposure, and that the prior tenant had made complaints to defendants, including Redrock, Redwood and/or Redwood Urban, but that defendants had failed to warn plaintiff of the mold issues in the apartment. It has also been discovered that when Redrock sold the Lofts to defendant NoHo Commons Pacific, Redrock disclosed to NoHo Commons Pacific a lawsuit Redrock had filed against the construction companies that built the Lofts, putting defendants on notice of construction defects which had increased the risk of toxic mold developing in the units.

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.”

Defendants seek summary adjudication of the third, fourth, sixth and seventh causes of action of plaintiff’s First Amended Complaint, arguing that plaintiff will be unable to establish one of more of the elements of each cause of action. Defendants also seek to summarily adjudicate in their favor plaintiff’s claims for punitive damages.

Issue No. 1: Plaintiff’s third cause of action for nuisance fails as a matter of law as against Defendants Noho Commons Pacific Owner, LLC and Polaris Property Management, LLC because Plaintiff cannot prove that the Noho Commons Pacific Owner, LLC or Polaris Property Management, LLC’s actions, or failure to act, created or permitted a harmful, indecent or offensive condition to exist, obstructed Plaintiff’s use of the Unit, or was a substantial factor in causing her alleged harm.

The elements of a cause of action for nuisance are: Plaintiff’s ownership or occupancy of real property; defendant used its property (ownership is not required) in violation of the courses of conduct proscribed in Civil Code § 3479 (including conduct offensive to the senses or an obstruction to the free use of the property so as to interfere with the comfortable enjoyment of life or property); separate and ongoing acts by defendant constituting nuisance; and past and future damages. Kafka v. Bozio (1923) 191 Cal.746; Alonso v. Hills (1950) 95 Cal. App.2d 778; Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668.

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”

Defendants argue that plaintiff cannot establish the second and eighth elements under CACI, as there is no evidence that Noho Commons’ or Polaris’ conduct created a condition in the unit which would lead to alleged mold exposure or otherwise harm plaintiff. Defendants argue that they did not become responsible for the unit until Noho Commons obtained the complex from a previous owner, and that during defendants’ management of the building, they were never notified prior to plaintiff’s complaint on June 12, 2021of the presence of mold in the unit, which they immediately attended to.

Haro indicates that, “Plaintiff’s June 12, 2020 email was the first time Polaris was ever put on notice by anyone regarding the alleged presence of mold in Plaintiff’s unit.” [Haro Decl., para. 9]. The declaration explains that Polaris responded to the email within seventeen minutes, reviewed the reports that plaintiff had received from her property inspector, and arranged for the prompt remediation of the problem. [Haro Decl., paras. 9-21].

Defendants also submit the declaration of Jackie Ocampo, the Director of Property Management for Polaris during the relevant time period, who indicates he has reviewed the file for Unit 347 and “Plaintiff did not submit any work orders or other maintenance requests of complaints related to mold in Unit 347 prior to June 12, 2020.” [Ocampo Decl., para. 9]. Ocampo also testified that since Polaris took over management of the Lofts, “Polaris never received notice of any complaints of Plaintiff’s washing machine leaking and Polaris never received any requests from Plaintiff to repair any water damage inside her Unit.” [Ocampo Decl., para. 11]. He indicates he is not aware of plaintiff providing any information, documents or notice of any suspected mold prior to June 12, 2020, and had there been such complaints, the declarant would have been notified. [Ocampo Decl., paras. 25,17].

Plaintiff argues that a private nuisance may be found to exist based on noxious odors. Plaintiff cites Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041, in which the court of appeal recognized that “private plaintiffs have successfully maintained nuisance actions…against a sewage treatment plant for interference caused by noxious odors.” Koll-Irvine, at 1041, citing Varjabedian v. City of Madera (1977) 20 Cal.3d 285. Plaintiff also points out that case law has permitted recovery against parties responsible for conditions which result in mold growth and contamination of a residence on various tort theories, including private nuisance. Holguin v. Dish Network, LLC (2014) 229 Cal.App.4th 1310, 1327.

The moving papers include evidence that plaintiff is claiming injuries from exposure to mold in her unit that required extensive medical treatment. [UMF No. 11, and evidence cited]. The moving papers rely on evidence that defendants were notified of mold in the unit, received a written report containing test results of mold tests and a remediation recommendation, and responded by replacing the flooring and remediating the unit, seeming to concede there was a basis for suspecting there was mold in the unit. [UMF Nos. 22-24, 28-30, and evidence cited]. The deposition testimony includes testimony that plaintiff in fact notified the office in 2018 of an overflowing washer, which defendants repaired, and that there had been other calls concerning the washer. [Friedrick Depo., pp. 344-345, 348, 349]. The deposition testimony also includes plaintiff reporting that she made frequent complaints about a musty smell and boards, with maintenance coming to the unit, stomping on the boards, offering to paint the walls with scented paint, but not addressing the numerous complaints. [Friedrick Depo., p. 355]. Plaintiff’s deposition testimony submitted by the moving defendants indicates that the mold infestation was not completely abated by defendants because defendants did not remediate plaintiff’s personal property which had been contaminated before returning it to the unit. [Friedrick Depo., pp. 326-327]. The verified interrogatory responses relied upon by defendants detail the damages claimed for the failure to remediate plaintiff’s belongings. [Bremseth Decl., Ex. 5, Response to Form Interrogatory No. 7.1].

This evidence appears to support a reasonable inference that defendants were responsible for a leaking washing machine, which led to mold growth in the unit, and, in any case, were responsible for failing to adequately investigate the source of an odor and abate an odor which was interfering with plaintiff’s enjoyment of her unit.

CCP § 437c(c) provides that “summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” See also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 718. The moving papers include evidence supporting a competing inference that defendants in fact were responsible for the failure to abate a private nuisance. Defendants have accordingly failed to meet their initial burden on this cause of action, and the burden does not shift to plaintiff to raise triable issues of fact.

Even had the burden shifted, plaintiff in opposition has raised triable issues of material fact by submitting evidence that plaintiff informed the prior owner of a foul odor and continued to complain after defendants became responsible for the property, and the foul odor was not resolved throughout the time that moving defendants were responsible for the property. [Response to UMF No. 21, 22, and evidence cited, Friedrick Decl., paras. 3, 5, 7; Additional Fact No. 5, and evidence cited]. Plaintiff indicates that she was afraid for her health, and suffered from various ailments to the point where a physician suggested she test her apartment for mold, and the test results came back positive for toxic mold. [Friedrick Decl., paras. 8-13]. Plaintiff submits her declaration indicating that the nuisance of the mold exposure continued when plaintiff told Haro that plaintiff needed her personal property remediated to prevent cross-contamination, but Haro refused. [Friedrick Decl., para. 6].

Plaintiff has submitted various documents which appear to be written work orders with the opposition. Defendants have objected that the work orders have not been properly authenticated by plaintiff or a witness with personal knowledge, which objections will be sustained, so those documents have not been considered by the court. However, plaintiff submits further deposition testimony indicating that complaints about the odor were made regularly throughout the tenancy.

A. Literally, you know, the day after, as soon as the Lofts opened, the following day after moving in, I complained of musty odors, that it's not like the garbage -- it smelled like garbage in my unit, but also like watery -- you know, like old people houses, if you will, or like old carpet almost. It just really smelled bad. So I told them about that, and I kept making maintenance requests and calling and asking and they kept saying they would look into it. So I did it -- over the course of the time I lived there, I did it at least several times over the summer, like every week during the summer. The summer is when it would really smell much worse. And then almost monthly, I was either calling or I would make a maintenance request.

THE WITNESS: The maintenance staff would come in, and I would tell them, and they would smell. And then they would say we will paint the garbage room. One time they offered to paint my walls scented and another time -- and several times they would just come in, and I would say like -- I would also tell them about the buoyant floor and they would just walk in and sniff and then leave. No one would resolve it, and people would walk in, sniff, and leave.”

Issue No. 2: Plaintiff’s seventh cause of action for intentional infliction of emotional distress fails as a matter of law as against Defendants Noho Commons Pacific Owner, LLC and Polaris Property Management, LLC because Plaintiff cannot establish that Noho Commons Pacific Owner, LLC or Polaris Property Management, LLC engaged in outrageous conduct with the intention of causing or reckless disregard for causing Plaintiff emotional distress.

Issue No. 3: Plaintiff’s fourth cause of action for concealment (fraud) fails as a matter of law as against Defendants Noho Commons Pacific Owner, LLC and Polaris Property Management, LLC because Plaintiff cannot show that Noho Commons Pacific Owner, LLC or Polaris Property Management, LLC had knowledge of falsity of fact pertaining to any representation the Noho Defendants made to Plaintiff concerning her Unit.

Issue No. 4: Plaintiff’s sixth cause of action for fraudulent misrepresentation fails as a matter of law as against Defendants Noho Commons Pacific Owner, LLC and Polaris Property Management, LLC because Plaintiff cannot show that Noho Commons Pacific Owner, LLC or PolarisProperty Management, LLC had knowledge of falsity of fact pertaining to any representation the Noho Defendants made to Plaintiff concerning her Unit.

To establish a cause of action for fraud, plaintiff must plead and prove the following elements: A false representation, actual or implied, or concealment of a matter-of-fact material to the transaction which defendant had a duty to disclose, or defendant’s promise made without intention to perform; defendant’s knowledge of the falsity; defendant’s intent to deceive; plaintiff’s justifiable reliance thereon; and resulting damage to plaintiff. Pearson v. Norton (1964) 230 Cal.App.2d 1.

Defendants again rely on their evidence that plaintiff’s June 12, 2020 email was the first time defendants were ever put on notice by anyone regarding the alleged presence of mold in plaintiff’s unit, and responded immediately. [See UMF Nos. 18-26, 29, 30, 33, and evidence cited, Haro Decl., paras. 9-21, 24; Ocampo Decl., paras. 9, 11, 15, 17]. Again, Ocampo, the Director of Property Management for Polaris during the relevant time period, indicates he is not aware of plaintiff providing any information, documents or notice of any suspected mold prior to June 12, 2020, and had there been such complaints, the declarant would have been notified. [Ocampo Decl., paras. 15,17].

Plaintiff in opposition argues that the crux of defendants’ argument is that defendants had no knowledge of or reason to suspect that there was any mold or dangerous condition in plaintiff’s unit. Plaintiff argues that the element of knowledge of falsity may be proved by inference and that knowledge of falsity of a representation is generally a question of fact, which can be proved by circumstantial evidence. Hart v. Brown (1980) 103 Cal.App. 3rd 947, 957; see also Intrieri v. Superior Court (2004) 117 Cal.App. 4th 72, 86.

Plaintiff then cites case law under which a landlord has a duty of inspection and that if, by the exercise of reasonable care, he would have discovered a dangerous condition in leased premises, then the landlord is liable to a tenant for injuries due to the condition. This case law concerning the general duty of landlords does not impose fraud liability, and, in fact, the case quoted expressly distinguishes the duty apart from a separate action for fraud or concealment:

“The general rule that a landlord is not liable to a tenant for injuries due to the defective condition or faulty construction of the demised premises in the absence of fraud, concealment or covenant, is subject to exception. When a portion of the premises is reserved by the landlord for use in common by himself and his tenants, or by different tenants, a duty is imposed upon the property owner to use ordinary care to keep that particular portion of the premises in a safe condition.”

Plaintiff argues that defendants had ample opportunity to discover the mold in plaintiff’s unit but failed or refused to conduct a reasonable inspection to find and repair the dilapidation. Plaintiff argues that defendants should have known there was mold based on their duty to exercise reasonable care in the inspection of the property for dangerous conditions, particularly after plaintiff complained about foul odors in the apartment on at least 7 different occasions, over a total of three years, without remedy.

In support of this duty, plaintiff requests that the court take judicial notice of a document posted on the California Department of Public Health website in November of 2017, entitled, “Mold or Moisture in My Home: What Do I Do?” which describes places which are moldy or damp to include those with “Moldy or musty smells.” Defendants have objected to the admissibility of this document and also object that it is not a matter subject to judicial notice. Plaintiff argues that the document is subject to judicial notice pursuant to Evidence Code section 452 (c) and (h).

Plaintiff does not explain how the matter relied upon constitutes an official act of a department of the State. While the court may take judicial notice of the existence of the material in the records of the State, it is not established that the court may judicially notice what plaintiff appears to seek notice of here, that a musty smell is a matter which provides notice that a home is infested with mold.

The Assembly Judiciary Committee Comment to the section provides in connection with subdivision (h) that “Sources of ‘reasonably indisputable accuracy’ include not only treatises, encyclopedias, almanacs, and the like, but also persons learned in the subject matter,” and that this subdivision would “include, for example, facts which are accepted as established by experts and specialists in the natural, physical and social sciences, if those facts are of such wide acceptance that to submit them to the jury would be to risk irrational findings.”

Plaintiff relies on this document for the truth of the statement that musty smells should alert a landlord to the presence of mold in a home, which is not an official act of the legislative, executive or judicial department of the State of California. It is also not a fact not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. The material does not appear to represent a fact subject to judicial notice. Defendants have filed written objection to the Request for Judicial Notice.

The only specific representations plaintiff mentions in the memorandum with respect to these causes of action are purported representations, evidently in work orders dated July 23, 2018 and August 8, 2019, when plaintiff argues that defendants’ maintenance personnel did a cursory inspection and noted that the unit was “normal,” or “no smell present.” This argument is problematic, as it does not refer to which evidence supports the argument. [See Memorandum, p. 21:1-3]. The argument appears to be based on work orders which plaintiff has submitted with the declaration of counsel for plaintiff, who attaches “an excerpt from Work Orders that were submitted Plaintiff [sic]regarding complaints she made to Defendants about the foul odor in her apartment, Unit No. 347.” [Jackson Decl., para. 4]. As noted above, this witness does not appear to have personal knowledge to authenticate these documents, and plaintiff does not in her own declaration authenticate them. Defendants have filed written objections to the admissibility of these work orders on this ground.

This situation leaves plaintiff without any evidence at all to show any affirmative representation made by or on behalf of defendant which could support a fraud claim based on affirmative misrepresentation. This result warrants summary adjudication of the sixth cause of action for fraud based on fraudulent misrepresentation.

Plaintiff has failed to submit admissible evidence of an affirmative misrepresentation to support a misrepresentation claim, and plaintiff has accordingly failed to raise triable issues of fact with respect to the sixth cause of action for fraud based on fraudulent misrepresentation. The motion as to Issue No. 4 is granted.

This posture leaves the issue of the cause of action for fraudulent concealment. With respect to this cause of action, as discussed above in connection with the cause of action for private nuisance, defendants have submitted evidence with the moving papers which would support a reasonable inference that a condition such as a noxious odor or mold infestation existed at the premises of which defendants had been made aware. The evidence submitted with the moving papers includes deposition testimony in which plaintiff indicates there was mold growth under the floorboards due to water damage. [Bremseth Decl., Ex. 3, Friedrick Depo. p. 316].

More importantly, defendants in the moving papers indicate that plaintiff provided notice to defendants of alleged mold on June 12, 2020 and provided defendants with copies of documents relating to the purported testing of the unit which contained test results of mold tests performed on the unit with recommended remediation procedures. [UMF No. 24, and evidence cited, Haro Decl., paras. 9 and 16].

Defendants go to some effort to distance themselves from conceding that there was in fact mold on the premises, as they have not submitted as evidence the report which plaintiff received from Indoor Restore Environmental Services, and have also submitted evidence showing that defendants have not otherwise ever confirmed that there was actually mold in the unit, as they did not conduct independent testing prior to remediation, and their remediation company did not observe any visible mold upon inspection. [UMF Nos. 26, 31, and evidence cited].

Plaintiff submits what purports to be the report, but again, with the declaration of counsel, who has no personal knowledge concerning that report or the circumstances of its preparation or authenticity. Counsel’s declaration states, “Attached hereto is a true and correct copy of the Indoor Restore Estimate for mold remediation in Unit No. 347, dated June 12, 2020.” [Jackson Decl., para. 5]. Defendants have filed objections to the admissibility of the report on these grounds, which will be sustained. The report itself is accordingly not properly before the court on this motion.

However, defendants have conceded that the report purported to report mold testing results finding mold had been detected which placed defendants on notice of a potential problem and prompted them to engage in remediation efforts until a negative mold result was obtained. [UMF Nos. 23-33]. This outcome is sufficient to support a reasonable inference that the matter which plaintiff contends that defendants fraudulently concealed, the presence of mold in the unit, was in fact true, so that the concealment of it, suggesting there was no problem with the unit, was fraudulent. Specifically, plaintiff cite to case law in which it is held that the scienter element of fraud defendants have placed at issue here is not subject to summary resolution where there is a reasonable inference that the alleged falsehood was in fact false.

In Hart v. Browne (1980) 103 Cal.App.3d 947, the court of appeal found that the trial court had improperly granted a motion for nonsuit with respect to a fraud cause of action where there had been evidence below pursuant to which the jury may have found for plaintiff on a fraud cause of action because there was substantial evidence to show that the alleged misrepresentation had in fact been false. The court of appeal concluded:

Regarding the element of scienter, evidence of the falsity of a representation is sufficient to raise a triable issue of fact as to the elements of knowledge of the falsity. In Maxson v. Llewelyn (1898) 122 Cal. 195 [54 P. 732], the defendant argued there was insufficient evidence to show that at the time he made the representations he did not believe they were true. Our Supreme Court, in affirming a judgment against the defendant, stated: “It would in most cases be extremely difficult, and in many cases absolutely impossible, to procure direct evidence of this nature. In all cases it is permissible to prove fraud by circumstances, and in most cases, it is the only evidence available. In aid of the direct facts proved, legitimate inferences are permitted to be indulged to establish other facts not directly in evidence.” (Id., at p. 198.)

Similarly, here, there is evidence to support a reasonable inference that mold was in fact infesting the unit submitted by defendants in support of their argument that they lacked scienter. This inference alone appears enough under the case law to support a reasonable inference that plaintiff can establish the scienter element of a fraudulent concealment claim. Triable issues of fact have been raised with respect to the fourth cause of action for concealment (fraud). The motion for summary adjudication as to Issue No. 3 accordingly is denied.

Issue No. 5: Plaintiff’s claim for punitive damages fails as a matter of law as against Defendants Noho Commons Pacific Owner, LLC and Polaris Property Management, LLC because Plaintiff cannot prove, by clear and convincing evidence, that Noho Commons Pacific Owner, LLC or Polaris Property Management, LLC acted with oppression, fraud or malice.

CCP § 437c(f) 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.” Subdivision (f)(1) provides “ a party may move for summary adjudication as to ... one or more claims for damages ... if that party contends ... that there is no merit to a claim for damages as specified in Section 3294 of the Civil Code...”

“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

Defendants argue that under Civil Code section 3294, punitive damages may be recovered “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice…” (emphasis added), and that plaintiff does not have sufficient evidence to establish oppression fraud or malice by clear and convincing evidence.

It is held that “where the plaintiff’s ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for a summary judgment or summary adjudication.” American Airlines, Inc. v Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1049.

In the usual case, the question of whether the defendant's conduct will support an award of punitive damages is for the trier of fact, “since the degree of punishment depends on the peculiar circumstances of each case.” Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App. 4th 1004, 1053, quoting Hannon Engineering, Inc. v. Reim (1981) 126 Cal.App.3d 415, 431.

Plaintiff relies on Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1239, in which the Second District, in affirming a judgment based on a jury verdict awarding punitive damages in a commercial fraud case, expressly held, “The words ‘oppression, fraud, or malice’ in Civil Code section 3294 being in the disjunctive, fraud alone is an adequate basis for awarding punitive damages.” Las Palmas, at 1239, quoting Glendale Fed Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App. 3d 1010, 135.

As discussed above, the moving and opposing papers include facts which would support a finding on the part of the trier of fact that defendants engaged in fraud based on a theory of fraudulent concealment. Defendants in the reply have cited no case authority under which the holding in Las Palmas would not apply here, and render the punitive damages claim appropriate in connection with the fraud cause of action. The motion as to this issue accordingly is denied.

Motion is DENIED. Defendants have submitted evidence with the moving papers which would support a reasonable inference that defendants’ actions or failure to act created or permitted a harmful, indecent, or offensive condition to exist, depriving plaintiff of use or enjoyment of the unit, and was a substantial factor in causing plaintiff’s alleged harm.

Specifically, the moving papers include evidence that plaintiff is claiming injuries from exposure to mold in her unit that required extensive medical treatment and rely on evidence that defendants were notified of mold in the unit, received a written report containing test results of mold tests and a remediation recommendation, and responded by replacing the flooring and remediating the unit, seeming to concede there was a basis for suspecting there was mold in the unit. [UMF Nos. 11, 22-24, 28-30, and evidence cited]. The deposition testimony submitted with the moving papers includes testimony that plaintiff in fact notified the office in 2018 of an overflowing washer, which defendants repaired, and that there had been other calls concerning the washer, as well as numerous reports and complaints about musty smells and boards, which maintenance failed to appropriately address. [Friedrick Depo., pp. 344-345, 348, 349, 355; See also Friedrick Depo., pp. 326-327; Bremseth Decl., Ex. 5, Response to Form Interrogatory No. 7.1]. This evidence would support a reasonable inference that defendants were responsible for a leaking washing machine, which led to mold growth in the unit, and, in any case, were responsible for failing to adequately investigate the source of an odor and abate an odor which was interfering with plaintiff’s enjoyment of her unit.

Even had the burden shifted, plaintiff has submitted evidence, which, if credited by the trier of fact, would be sufficient to establish a cause of action for private nuisance, based on either noxious odor or mold, including evidence that plaintiff repeatedly informed the prior owner and defendants of a foul odor, which was not resolved throughout the time moving defendants were responsible for the property, causing plaintiff harm and depriving plaintiff of the proper use of her unit. [Response to UMF No. 21, 22, and evidence cited, Friedrick Decl., paras. 3, 5- 7, 8-13; Additional Fact No. 5, and evidence cited; Jackson Decl., Ex. B; Friedrick Depo. pp. 49:6- 50:13] See also, Civil Code section 3483; Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041; Holguin v. Dish Network, LLC (2014) 229 Cal.App.4th 1310, 1327.

As discussed above in connection with Issue No. 1, and the cause of action for private nuisance, defendants have submitted evidence with the moving papers which would support a reasonable inference that a condition such as a noxious odor or mold infestation existed at the premises of which defendants had been made aware. The evidence submitted with the moving papers includes deposition testimony in which plaintiff indicates there was mold growth under the floorboards due to water damage. [Bremseth Decl., Ex. 3, Friedrick Depo. p. 316]. Defendants in the moving papers indicate that plaintiff provided notice to defendants of alleged mold on June 12, 2020 and provided defendants with copies of documents relating to the purported testing of the unit which contained test results of mold tests performed on the unit with recommended remediation procedures. [UMF No. 24, and evidence cited, Haro Decl., paras. 9 and 16]. Defendants have conceded that the report purported to report mold testing results finding mold had been detected which placed defendants on notice of a potential problem and prompted them to engage in remediation efforts until a negative mold result was obtained. [UMF Nos. 23-33]. This is sufficient to support a reasonable inference that the matter which plaintiff contends that defendants fraudulently concealed, the presence of mold in the unit, was in fact true, so that the concealment of it, suggesting there was no problem with the unit, was fraudulent. See Hart v. Browne (1980) 103 Cal.App.3d 947, 957-958.

Motion is DENIED. As discussed above in connection with Issue No. 3 and the fourth cause of action for concealment (fraud), triable issues of fact remain and both parties have submitted evidence which would support a reasonable finding by the trier of fact that defendants engaged in fraud. This cause of action, if established, is sufficient to support a punitive damages award. See

Las Palmas Associates v. Las Palmas Center Associates (1991, 2nd Dist.) 235 Cal.App.3d 1220, 1239, (“The words ‘oppression, fraud, or malice’ in Civil Code section 3294 being in the disjunctive, fraud alone is an adequate basis for awarding punitive damages.”, quoting Glendale Fed Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App. 3d 1010, 135.)

Defendants Noho Commons Pacific Owner, LLC and Polaris Property Management, LLC’s Objections to Evidence in Support of Plaintiff’s Opposition to Defendants’ Motion for Summary Adjudication of Plaintiff’s Claims for Punitive Damages and the Third, Fourth, Sixth and Seventh Causes of Action in Plaintiff’s First Amended Complaint:

Plaintiff’s Request for Judicial Notice is DENIED. The material is not relied upon as an official act of the legislative, executive, or judicial department of the State, but for the incontestability of matters stated or implied by the material, which matters have not been established under Evidence Code section 452, subdivision (h) as “facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” The Request for Judicial Notice has been properly objected to on this ground.

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.