TENTATIVE RULING

Calendar:    5

Date:          10/20/2023 

Case No: 22 GDCV00318 Trial Date:  Nov. 20, 2023   

Case Name: Dehal v. Abovyan

MOTION FOR SUMMARY JUDGMENT

(Or, in the Alternative, Summary Adjudication)

Moving Party: Defendant Suzanna Abovyan        

Responding Party: Plaintiff Ahmed Dehal 

RELIEF REQUESTED:

In the alternative, summary adjudication as to plaintiff’s first through seventh and ninth causes of action and claim for punitive damages. 

CAUSES OF ACTION: from Complaint   

1) Breach of Warranty of Habitability 

2) Breach of Covenant of Quiet Enjoyment

3) Nuisance 

4) Business & Professions Code section 17200 et seq. 

5) Negligence  

6) Breach of Contract 

7) Constructive Eviction

8) Violation of LARSO*

9) Civil Code 1950.5

*Cause of action dismissed pursuant to stipulation of counsel as reflected in Minute Order 09/09/2022, p. 1 of 13. 

SUMMARY OF FACTS:

Plaintiff Ahmed Dehal alleges that plaintiff is a tenant of residential property in Glendale which plaintiff took possession of by a written lease.   Plaintiff alleges that defendant Suzanna Abovyan, (and un-named Avetik Karapetyan), is the legal owner of the subject property, and at all material times owned, managed, and controlled the property, acting as the active onsite manager.   

The complaint alleges that during the course of plaintiff’s tenancy, habitability violations existed that were never properly addressed, including violations of the Civil Code and Health and Safety Code, and that as a consequence of the conditions, plaintiff has sustained physical injuries, and has also sustained severe mental suffering, frustration, and anxiety.   Specifically, plaintiff alleges that at multiple times, plaintiff or third parties noticed and documented conditions, including but not limited to insufficient insulation, leaking plumbing, insufficient rain buttresses, electrical wiring not up to code, filth and mold, vermin, rats, bugs, and rubbish. 

The complaint alleges that plaintiff notified defendant about the violations, but defendant failed to correct the conditions, and in response to plaintiff’s complaints retaliated against plaintiff through confrontational communication or disregard and hostile intimidating acts.  Plaintiff alleges that after trying to mitigate the problems, plaintiff was ultimately unable to live or work for any amount of time at the property without issues, and plaintiff was ousted by virtue of the conditions. 

The complaint alleges that plaintiff gave notice of the constructive eviction and was ousted from the property on November 1, 2020, and that defendant refused to return plaintiff’s entire security deposit, illegally withholding it.  Plaintiff also alleges that due to the forced ouster plaintiff has suffered early termination charges by third parties, incurred attorney’s fees, and was forced to sign a lease on comparable property for substantially more money per month. 

The file shows that at a hearing on a demurrer and motion to strike on September 9, 2022, plaintiff was ordered to file a Notice of Errata as to the 9th Cause of Action, and the 8th Cause of Action was dismissed pursuant to the stipulation of counsel.  On September 19, 2022, plaintiff filed a Notice of Errata, correcting paragraphs 17 and 84 of the complaint to reflect dates in November of 2021, not November of 2020.    

ANALYSIS:

Procedural

Untimely Opposition 

The opposition papers were not timely filed. 

CCP section 437c(b)(2) provides:

“Any opposition to the motion shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.”

Under Rule 3.1300(d), the court may, in its discretion, refuse to consider a late-filed paper, so long as it so indicates in its minutes or order. 

Here, the opposition papers were due to be filed by Friday, October 6, 2023, but were not filed until October 12, 2023, six days late, after the court had begun to review and analyze the motion as unopposed.  The proof of service shows that the opposition was personally served on October 4, 2023, timely, so there has evidently been no prejudice to the other party from this untimely filing.  It is not clear why the papers were not filed with the court when served, and courtesy copies not delivered to the court that date, resulting in inconvenience to the court.  The court in its discretion reluctantly considers the untimely opposition papers, but counsel for plaintiff is cautioned to in the future comply with filing deadlines.     

Substantive 

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.”

Issue 1:  As to Plaintiff’s First Cause of Action for Tortious Breach of Warranty of Habitability, there is no merit. 

The elements of a cause of action for breach of the implied warranty of habitability are:  

“the existence of a material defective condition affecting the premises habitability,

notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition,

the landlord was given a reasonable time to correct the deficiency and resulting damages.” 

Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297, citations omitted. 

Form Interrogatory 50.2 asks:

“Was there a breach of any agreement alleged in the pleadings?  If so, for each breach describe and give the date of every act or omission that you claim is the breach of the agreement.” 

The response which plaintiff served states:

“Yes, Defendant breached; (Civ. Code section 1941.1 (a)(6), California Health and Safety Code section 17920.3 (a); (Civ Code section 1941.1 (a)(6); Civil Code section 51 et seq;).  October 28th and October 29th 2021 I had a long discussion via text message with Suzanna Abovyan regarding the bug infestation we were dealing with on the subject property.  I had to spend money out of my own pocket on poisons.  Responding party withdraws the other allegations regarding breach pursuant to paragraph 11 of the complaint subject to this response.  Further, the premises did not have completely closed doors and had opening and other access points which allowed the bugs and insects to enter the premises pursuant to Civ Code section 1941.1(a)(6) regarding non-maintenance.  Regarding breach of quiet enjoyment in every residential agreement, the responding party and his family was unable to enjoy the premises without dealing with the major bug infestation and related issues as set forth in the response.” 

[Krog Decl., Ex. 7, pp. 168-169, Response to Interrogatory No. 50.2].

 It is not clear from this response that allegations are being withdrawn with respect to the claim other than the breach of contract claim to which the interrogatory is directed, although other statutes are cited.   

In any case, defendant argues that plaintiff cannot establish the existence of an uninhabitable condition, as plaintiff’s single habitability issue of a bug infestation is refuted by his confirmation that the premises were in a “clean and operable condition” by initialing provision 10 of the Lease.  [UMF No. 5, and evidence cited].  

However, a review of that provision shows that it states:

“Tenant has examined Premises and, if any, all furniture, furnishings, appliances, landscaping and fixtures, including smoke alarm(s) and carbon monoxide detector(s).

  

Tenant acknowledges that these items are clean in in operable condition…”  

[Ex. 1, Residential Lease, para. 10 and 10A]. 

  This acknowlegment is hardly an admission that there could not have been an insect infestation which was not evident upon the inspection at the time.  Similarly, defendant relies on defendant’s inspection of the premises before leasing the premises, and photos of the premises post plaintiff vacating, which would not in any case necessarily reveal an insect infestation.  [UMF Nos.  2, 4, 13, 14].    

The statement in the Lease and defendant’s observations of the premises are not strictly contradictory of the facts included in the moving papers that the premises had habitability issues due to insect infestation during the tenancy; it is entirely possible the insect infestation was not obvious upon visual inspection and was not discovered by the tenant until the tenant assumed full possession of the premises.

Defendant also argues that the in response to Requests for Production of Documents, plaintiff produced photos showing only a few crickets and ants at the premises, and otherwise revealing the premises to be in a clean and habitable condition when plaintiff vacated.  [UMF Nos. 15, 23, and evidence cited].  

A review of those photographs shows that several of them include insects in the premises, not all immediately identifiable as mere harmless ants and crickets. [Compendium of Exhibits, Ex. 5, pp. 72, 76, 77, 80, 114-124].  It is also not clear on what the landlord bases the position that ants do not bite, and ants and crickets could not both facilitate the spread of disease.     

Moreover, the photographs submitted include several photographs of bodies afflicted with what appear to be multiple insect bites, some giving rise to a rash-like appearance from the number of bites. [Compendium of Exhibits, Ex. 5, pp. 87- 95].     

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.

Here, the evidence relied upon by defendant in the moving papers supports a reasonable competing evidence that there was in fact a serious insect infestation, resulting in physical manifestation of harm, and affecting habitability.  Defendant accordingly has not met its initial burden on the essential element of the cause of action for breach of warranty of habitability.   

Defendant also argues that plaintiff cannot establish any damages for the breach of warranty of habitability, as the only evidence of damages from the bug infestation in documents produced in discovery were receipts for insect spray totaling less than $85.00.  [UMF No. 25, and evidence cited].  This evidence presented in the moving papers is sufficient to support a reasonable inference that plaintiff suffered damages with respect to having to address the habitability issue with his own funds.  [Compendium of Evidence, Ex. 5, pp. 84, 85, 86].  Again, the evidence submitted by defendant supports a reasonable inference that damages were in fact suffered by plaintiff, regardless of what defendant argues is a modesty in amount.     

Overall, defendant has failed to meet defendant’s initial burden on this motion with respect to this cause of action based on insect infestation in the premises, and the burden does not shift to plaintiff to raise triable issues of material fact. 

Even if the burden had shifted, plaintiff in opposition points to the documents produced in response to discovery as submitted by defendant, as discussed above, including the limited scope of the tenant’s representation in the Residential Lease, as well as the documentation supporting the existence of an insect infestation.  

Plaintiff also submits his own declaration, as well as a declaration from his wife.  Plaintiff states, with respect to the condition of the premises:

“4.  We did not know about the vermin infestation. It was of such a problem that the damages caused to my wife and child were intolerable. We were forced to permanently vacate the premises within 7 or 8 days on November 1, 2021 after entering into a lease on October 23, 2021. 

5. We attempted to eradicate the vermin and purchased home remedies for that process. But, it was actually necessary to have a professional exterminator tent the house and fumigate the entire living premises. 

6. An exterminator was not hired and we considered this as a serious problem which caused us to immediately find a new clean and habitable property and vacate the Glenwood Road house….

9.  The premises of the house were not up to the standard of the housing that I intended to rent. The vermin infestation was intolerable. 

10. My wife and child were bitten by the insects inside the house which caused physical damages to our bodies as well as a great deal of distress.”

[Ahmad Dehal Decl., paras. 4-6, 9, 10]. 

Plaintiff’s wife makes similar statements.  [Shireen Dehal Decl., paras. 4-7, 11, 12].  She also states:

5. I and my baby were bitten many times by bugs in the house and this caused me a great deal to anguish to the extent that I could not take the bug bites any longer. See, the photographs in Exhibit 5, pages 87 through 95 in the Compendium showing bug bites to my body. My husband bought bug repellent and we sprayed for the ants. Also take note of the crickets on the house on the house. They came out at night. The fleas are not photographed because they are not visible and difficult to see even when bitten. (See also 15 photographs of insects in the house at Exhibit 5, pages 114 to 125.) 

6. After my husband Ahmed purchased repellants and we attempted to eradicate the vermin with home remedies used for removal of insects. But, we agreed that it was actually necessary to have a professional exterminator tent the house and fumigate the entire living premises. 

7. We asked the landlord to hire an exterminator. An exterminator was not hired and we considered this as a serious problem which caused us to immediately find a new clean and habitable property and vacate the Glenwood Road house.”

[Shireen Dehal Decl., paras. 5-7].

With respect to damages, plaintiff’s declaration states:

5. We attempted to eradicate the vermin and purchased home remedies for that process….

8. This lawsuit was filed to recover the approximate $15,000 in expenses of moving out of the Glenwood Road property and into a new location, and to recover approximately $10,000 time lost at work, and the $2,070 remaining security deposit wrongfully withheld. I have also alleged a loss of income of $25,000….

 11. We moved into the house on October 23, 2021 and paid a considerable moving cost. Then we had to move out on November 1, 2021 and paid another moving cost to vacate the bug infested property at 1519 Glenwood Road….

13. I am a doctor and physician at Kaiser Hospital. I had to reduce my time at Kaiser Hospital for the reason that we had to locate a new home and move out of the Glenwood Road property. This was a considerable cost to me at my expense to leave my practice and supervise this move out of Glenwood Road and into a new residential property.”

[Ahmad Dehal Decl., paras. 5, 8, 11, 13].

As noted above, the moving papers show that plaintiffs have submitted in response to discovery responses receipts for the home insecticides and treatments purchased to deal with the insects.  [Compendium of Evidence, Ex. 5, pp. 84-86]. 

Issue 2:  As to Plaintiff’s Second Cause of Action for Breach of the Covenant of Quiet Enjoyment, there is no merit. 

Under Civil 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.”

“In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises. (Petroleum Collections Inc. v. Swords (1975) 48 Cal. App. 3d 841, 846 [122 Cal. Rptr. 114]; Guntert v. City of Stockton (1976) 55 Cal. App. 3d 131, 138 [126 Cal. Rptr. 690].)”

Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588, italics in the original.

The elements of a cause of action for breach of covenant of quiet enjoyment are “an act or omission on the part of the landlord” which “interferes with a tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy.”  Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 846.  

Defendant argues that plaintiff cannot establish the existence of a defective condition, in effect, a bug infestation, that substantially interfered with his right to use the premises, as the existence of a few crickets and ants is at best a minor annoyance and does not affect a tenant’s beneficial enjoyment of the premises.   Defendant also again argues that plaintiff cannot establish damages. 

As discussed in detail above, the moving papers themselves submit evidence giving rise to a reasonable inference that there was a significant insect infestation on the premises of insects which were causing numerous bites, and that plaintiff was forced to incur out of pocket costs due to the conditions. [Krog Decl., Ex. 7, pp. 168-169, Response to Interrogatory No. 50.2; Compendium of Exhibits, Ex. 5, pp. 67-83, note, pp. 72, 76, 77, 80, 84-95, 114-124; UMF No. 25, and evidence cited.]

In addition, plaintiff has in opposition raised triable issues of fact with respect to each of these elements of a cause of action for breach of the covenant of quiet enjoyment. [Ahmad Dehal Decl., paras. 4-6, 8, 9, 10, 11, 13; Shireen Dehal Decl., paras. 4-7, 11, 12].

 

The motion accordingly is denied as to this issue. 

 

Issue 3:  As to Plaintiff’s Third Cause of Acton for Nuisance, there is no merit 

Civil Code § 3479 defines “nuisance” as follows:

“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.”

Defendant again argues that plaintiff cannot establish the existence of any condition that interfered with comfortable enjoyment of the premises, as the existence of a few ants and crickets cannot constitute substantial harm, and also argues that plaintiff cannot establish that defendant’s conduct was unreasonable, as defendant offered to spray the premises, and then to release plaintiff from the lease.   [UMF Nos. 68, 70, 71].  However, the email chain submitted with the moving papers shows that the landlord was notified of the problem, protested that the bugs were not harmful, delayed in providing the spraying, and refused to authorize a company contacted by the tenant to treat the problem.  [Compendium of Exhibits, Ex. 5, pp. 67-83].  This showing again supports a reasonable inference that the landlord was not behaving reasonably.  

Defendant also again argues that no damages can be established, but as discussed above, the evidence as a whole supports a claim of damages.  The motion as to this cause of action accordingly is denied. 

Issue 4:  As to Plaintiff’s Fourth Cause of Action for Violation of Business & Professions Code section 17200, there is no merit

To state a cause of action for Unfair Business Practices, a plaintiff must allege the following elements: 

1) Defendant has engaged in more than one unlawful, unfair, or fraudulent transaction, including unfair, deceptive, untrue or misleading advertising

2) Plaintiff’s right to restitution, if any.  Damages are not recoverable.

3) Plaintiff’s right to injunctive relief, if any.

Business & Professions Code § 17200 et seq.; Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758.

Issue 5:  As to Plaintiff’s Fifth Cause of Action for Negligence, there is no merit 

To establish a claim for negligence, a plaintiff must plead and prove the following elements: The existence of a duty of care, breach of that duty, and an injury proximately caused by the breach.   Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.  

Under Civil Code § 1714(a) “Every one is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property...” 

Defendant again argues that plaintiff cannot establish that there was any breach of a legal duty, as plaintiff has no evidence that there was a bug infestation over which the landlord had any control and cannot establish that plaintiff suffered damages.  As discussed in detail in connection with the first cause of action, the evidence submitted by both sides supports a reasonable inference that there was a significant insect infestation which caused damages.  

The motion as to the negligence cause of action also is denied. 

Issue 6:  As to Plaintiff’s Sixth Cause of Action for Breach of Contract, there is no merit

“To prevail on a cause of action for breach of contract, the plaintiff must prove

(1) the contract, 

(2) the plaintiff's performance of the contract or excuse for nonperformance, 

(3) the defendant's breach, and 

(4) the resulting damage to the plaintiff.” 

Richman v. Hartley (2014, 2nd Dist.) 224 Cal.App.4th 1182, 1186.  

  Defendant does not cite any legal authority under which plaintiff cannot pursue the alleged breach of the implied term of the Lease in a breach of contract cause of action.  

As discussed above in connection with the first cause of action, the evidence overall supports a reasonable inference of a breach of the warranty of habitability, and such evidence would also support a breach of contract claim based on the Lease and its implied covenant.  

The motion as to this cause of action accordingly is denied. 

Issue 7:  As to Plaintiff’s Seventh Cause of Action, there is no merit.

“A constructive eviction occurs when the acts or omissions of a landlord, or any disturbance or interference with the tenant’s possession by the landlord, renders the premises, or a substantial portion thereof, unfit for the purposes for which they were leased, or has the effect of depriving the tenant for a substantial period of time of the beneficial enjoyment or use of the premises.” 

Groh v. Kover’s Bull Pen, Inc.  (1963) 221 Cal.App.2d 611, 614.   

As discussed in detail with respect to the first and third causes of action above, triable issues of material fact remain as to each of these arguments.  

The motion as to this cause of action accordingly is denied. 

Issue 8:  As to Plaintiff’s Ninth Cause of Action for Violation of Civil Code 1950.5, there is no merit. 

(a) This section applies to security for a rental agreement for residential property that is used as the dwelling of the tenant.

(b) As used in this section, "security" means any payment, fee, deposit or charge, including, but not limited to, any payment, fee, deposit, or charge, except as provided in Section 1950.6, that is imposed at the beginning of the tenancy to be used to reimburse the landlord for costs associated with processing a new tenant or that is imposed as an advance payment of rent, used or to be used for any purpose, including, but not limited to, any of the following:

 (1) The compensation of a landlord for a tenant's default in the payment of rent.

 (2) The repair of damages to the premises, exclusive of ordinary wear and tear, caused by the tenant or by a guest or licensee of the tenant.

 (3) The cleaning of the premises upon termination of the tenancy necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy. The amendments to this paragraph enacted by the act adding this sentence shall apply only to tenancies for which the tenant's right to occupy begins after January 1, 2003.

 (4) To remedy future defaults by the tenant in any obligation under the rental agreement to restore, replace, or return personal property or appurtenances, exclusive of ordinary wear and tear, if the security deposit is authorized to be applied thereto by the rental agreement….

(d) Any security shall be held by the landlord for the tenant who is party to the lease or agreement. The claim of a tenant to the security shall be prior to the claim of any creditor of the landlord….”

(e) The landlord may claim of the security only those amounts as are reasonably necessary for the purposes specified in subdivision (b). The landlord may not assert a claim against the tenant or the security for damages to the premises or any defective conditions that preexisted the tenancy, for ordinary wear and tear or the effects thereof, whether the wear and tear preexisted the tenancy or occurred during the tenancy, or for the cumulative effects of ordinary wear and tear occurring during any one or more tenancies.”

Defendant focuses on subdivision (g), which provides, in pertinent part:

(g) 

 (1) No later than 21 calendar days after the tenant has vacated the premises, but not earlier than the time that either the landlord or the tenant provides a notice to terminate the tenancy under Section 1946 or 1946.1, Section 1161 of the Code of Civil Procedure, or not earlier than 60 calendar days prior to the expiration of a fixed-term lease, the landlord shall furnish the tenant, by personal delivery or by first-class mail, postage prepaid, a copy of an itemized statement indicating the basis for, and the amount of, any security received and the disposition of the security and shall return any remaining portion of the security to the tenant….

(2) Along with the itemized statement, the landlord shall also include copies of documents showing charges incurred and deducted by the landlord to repair or clean the premises, as follows:…

(B) If the landlord or landlord's employee did not do the work, the landlord shall provide the tenant a copy of the bill, invoice, or receipt supplied by the person or entity performing the work. The itemized statement shall provide the tenant with the name, address, and telephone number of the person or entity, if the bill, invoice, or receipt does not include that information.”

  Defendant argues that plaintiff’s security deposit was $4,650 as set forth in provision 4a of the Lease.  [UMF No. 211, and evidence cited].  Plaintiff vacated the premises on November 1, 2021.  [UMF No. 212].  On November 19, 2021, defendant’s attorney sent plaintiff a letter with a check enclosed for $2,599.11, representing the security deposit, plus interest and less the costs to repair documented damages caused by plaintiff, a security deposit refund form, and copies of invoices for repair costs of damages.  [UMF No. 213, and evidence cited, Abovyan Decl., para. 7; Compendium of Exhibits, Ex. 8, pp. 172-177]. 

As an initial matter, a review of the letter, Security Deposit Refund Statement, and the invoices show that defendant did not comply with the statute, as the Security Deposit Refund Statement does not include the name and telephone number of the person who performed the repairs to the hardwood floors, or the full name of the person who performed the toilet repairs, when the attached invoices do not include that information.   [See Ex. 8, pp. 174, 176, 177].   Defendant has accordingly failed to meet the initial burden of showing that defendant complied with the statute. 

In addition, defendant submits with the moving papers 

plaintiff’s verified responses to discovery in which he states, in response to Form Interrogatory No. 17.1, in connection with specific Requests for Admissions which plaintiff did not admit, that: 

“I did not damage any flooring.”

“I did not damage the walls.” 

“I did not damage the toilets, I hired someone to come fix them.” 

“I did not damage the plumbing, I had to hire someone to come fix it.”

“I did not damage the premises.” 

[Compendium of Exhibits, Ex. 7, Responses to Form Interrogatory, Form Interrogatory No. 17.1, RFAs Nos. 6-10, pp. 167-168]. 

Issue 9:  As to Plaintiff’s claim for punitive damages, there is no merit.

As noted above, 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.”

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...”

Defendant here accordingly seeks to summarily adjudicate the claim for punitive damages brought by plaintiff pursuant to Civil Code § 3294. 

Civil Code § 3294 (a) authorizes recovery of punitive damages on the basis of findings that “the defendant has been guilty of oppression, fraud, or malice…”  “Oppression” is defined to mean “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”  Civil Code § 3294 (c)(2).   “Malice” is defined to mean “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  Civil Code § 3294 (c)(a).   

“Despicable” has been defined as a powerful term that refers to circumstances that are “base,” “vile,” or “contemptible”.   College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.   “Despicable conduct” is defined as, “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary, decent people.”   Mock v. Michigan Millers Mutual Ins. Co. (1990, 2nd Dist.)  4 Cal. App. 4th 306, 331, quoting BAJI 14.72.1; See CACI 3940 (“’Despicable conduct’ is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people.”)  Such conduct has been described as “[having] the character of outrage frequently associated with crime.”  Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894, quotation omitted.  Punitive damages are appropriate if the defendant’s acts are “reprehensible, fraudulent or in blatant violation of law or policy.”  Tomiselli v. Transamerica Insurance Co. (1994) 25 Cal.App.4th 1269, 1287. 

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. 

Defendant argues that there is no evidence that defendant engaged in despicable conduct, having the character of outrage associated with a crime, or any fraudulent conduct, but rented the premises to plaintiff in a clean and habitable condition. 

As discussed above, triable issues of fact remain with respect to the condition of the premises.

Plaintiff in opposition argues that the facts support a conclusion that the landlord knew of dangers to the tenants due to a vermin infestation and failed to take corrective measures before allowing plaintiffs to enter into the tenancy, when the property should have been fumigated before the lease was entered into.  

Plaintiff relies on Penner v. Falk (1984) 153 Cal.App.3d 858, in which the Second District held that the trial court had erred in granting a motion to strike punitive damages where a residential landlord failed to provide sufficient security measures in the building, so that a tenant was assaulted and robbed by two intruders in the common hallway.   The court concluded:

“The pleadings sufficiently allege facts setting forth long existing physical conditions of the premises which portend danger for the tenants.  The pleadings also set out that respondents knew of those conditions for up to two years, had power to make changes, but failed to take corrective and curative measures.  If proven, these allegations would support an award of punitive damages.” 

Penner, at 867.  

 

The facts which appear here, particularly from the email chain concerning the infestation, including the landlord’s initial protestations that, “those bugs are not harmful, and they do not bite,” but are merely “unpleasant” to have in the house, suggest some possible advance familiarity with vermin in the house.  [See Ex. 5, p. 71].   In addition, the landlord’s delays during the tenancy itself in arranging for spraying knowing that the tenants were suffering bites, and not able to remain in the house in its condition, could itself show a conscious disregard for the health and safety of the tenant.  [Ex. 5, pp. 67-80]. 

Specifically, after being informed that the tenant’s wife and baby had been bitten and needed to leave the house until the vermin were eliminated, the landlord texted the tenant:

“No pest control company will come within hours to address an issue that is not dangerous.  Neither will I pay extra cost to bring someone urgently to resolve some issue that has been exaggerated above and beyond its proportions.  If you think it’s a health issue I will kindly consider releasing you from your lease obligation of 12 months.” 

[Ex. 5, p. 70]. 

The landlord also refused to approve a pest control option provided by plaintiff.  [Ex. 5, p. 73].

The evidence is sufficient to permit a trier of fact to reasonably conclude the landlord acted in conscious disregard for the health and safety of the tenant.  The motion as to this issue accordingly is denied.

RULING:

Defendant Suzanna Abovyan’s Motion for Summary Judgment or Alternatively, for Summary Adjudication:  

The Court notes the receipt of untimely opposition papers, which were filed only eight prior to the hearing in this matter, rather than the fourteen days required under CCP section 437c(b)(2).   As it appears the papers were in fact timely served, and there has been no prejudice to moving party, the Court in its discretion has considered these untimely papers, but counsel for plaintiff is cautioned that in the future the Court may refuse to consider papers which are not filed in compliance with the applicable statutes and rules. 

Motion for Summary Judgment is DENIED.

Motion for Summary Adjudication:

Issue 1:  As to Plaintiff’s First Cause of Action for Tortious Breach of Warranty of Habitability, there is no merit. 

Issue 2:  As to Plaintiff’s Second Cause of Action for Breach of the Covenant of Quiet Enjoyment, there is no merit.

Issue 4:  As to Plaintiff’s Fourth Cause of Action for Violation of Business & Professions Code section 17200, there is no merit

Issue 5:  As to Plaintiff’s Fifth Cause of Action for Negligence, there is no merit 

Issue 6:  As to Plaintiff’s Sixth Cause of Action for Breach of Contract, there is no merit

Defendant argues as to each of these causes of action that plaintiff will be unable to establish anything but a minor insect infestation and, as to the first, second, fifth and sixth causes of action, plaintiff will be unable to establish that plaintiff suffered any damages.   

The moving papers themselves submit evidence giving rise to a reasonable inference that there was a significant insect infestation on the premises of insects which were causing numerous bites to the tenants, and that plaintiff was forced to incur out of pocket costs due to the conditions. [Krog Decl., Ex. 7, pp. 168-169, Response to Interrogatory No. 50.2; Compendium of Exhibits, Ex. 5, pp. 67-83, note, especially, pp. 72, 76, 77, 80, 84-95, 114-124; UMF No. 25, and evidence cited.]  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.  Defendant has accordingly failed to meet its initial burden with the moving papers to establish that plaintiff will be unable to establish any essential element of the subject causes of action, so the burden does not shift to plaintiff to raise triable issues of material fact. 

Even if the burden had shifted, plaintiff has in opposition provided additional details concerning the scope of the insect infestation and the landlord’s reaction to it, as well as with respect to the element of damages suffered as a result of the infestation. 

[Ahmad Dehal Decl., paras. 4-6, 8, 9, 10, 11, 13; Shireen Dehal Decl., paras. 4-7, 11, 12].  Triable issues of material fact have been raised.  

Issue 3:  As to Plaintiff’s Third Cause of Acton for Nuisance, there is no merit 

Issue 7:  As to Plaintiff’s Seventh Cause of Action, there is no merit.

Motion is DENIED. 

As to each of these issues, defendant also argues that the condition of the premises or conduct of defendant landlord with respect to a few ants and crickets did not constitute a nuisance or a condition of property supporting a claim for constructive eviction, and that plaintiff cannot prove damages.  As discussed in connection with the issues above, the moving papers themselves submit evidence giving rise to a reasonable inference that there was a significant insect infestation on the premises of insects which were causing numerous bites to the tenants, and that plaintiff was forced to incur out of pocket costs due to the conditions. [Krog Decl., Ex. 7, pp. 168-169, Response to Interrogatory No. 50.2; Compendium of Exhibits, Ex. 5, pp. 67-83, note, pp. 72, 76, 77, 80, 84-95, 114-124; UMF No. 25, and evidence cited.] 

In addition, plaintiff has raised triable issues of material fact by submitting with the opposition further details concerning the condition and the damages claimed. 

[Ahmad Dehal Decl., paras. 4-6, 8, 9, 10, 11, 13; Shireen Dehal Decl., paras. 4-7, 11, 12].   

Defendant also argues with respect to these issues that plaintiff will be unable to establish that defendant acted unreasonably under the circumstances, as the landlord offered to spray the premises or to release plaintiff from the lease.  The evidence offered with the moving papers supports a competing reasonable inference that the landlord’s conduct was not reasonable in not treating the matter with urgency, as the evidence shows that the landlord was notified of the problem, protested that the bugs were not harmful, delayed in providing the spraying, and refused to authorize a company contacted by the tenant to treat the problem.  [Compendium of Exhibits, Ex. 5, pp. 67-83].  Triable issues of fact remain.  

Issue 8:  As to Plaintiff’s Ninth Cause of Action for Violation of Civil Code 1950.5, there is no merit. 

Motion is DENIED. 

The evidence submitted by defendant in support of the motion on this issue, including the Security Deposit Refund Statement and the invoices, show that defendant did not comply with Civil Code section 1950.5, as the Security Deposit Refund Statement does not include the name and telephone number of the person who performed the repairs to the hardwood floors, or the full name of the person who performed the toilet repairs, when the attached invoices do not include that information.   [See Ex. 8, pp. 174, 176, 177].   Defendant has accordingly failed to meet the initial burden of showing that defendant complied with the statute. 

In addition, defendant submits with the moving papers 

plaintiff’s verified responses to discovery in which he states, in response to Form Interrogatory No. 17.1, in connection with specific Requests for Admissions which plaintiff did not admit, that: 

“I did not damage any flooring.”

“I did not damage the walls.” 

“I did not damage the toilets, I hired someone to come fix them.” 

“I did not damage the plumbing, I had to hire someone to come fix it.”

“I did not damage the premises.” 

[Compendium of Exhibits, Ex. 7, Responses to Form Interrogatory, Form Interrogatory No. 17.1, RFAs Nos. 6-10, pp. 167-168].  This evidence supports a reasonable inference that the landlord also violated subdivision (e) of Civil Code section 1950.5, as urged in the opposition.  

Again, defendant has failed to meet the initial burden of showing that there was no violation of the statute, and triable issues of fact remain. 

Issue 9:  As to Plaintiff’s claim for punitive damages, there is no merit.

Motion is DENIED.  

Based upon the evidence reviewed above in connection with the first through seventh causes of action, the finder of fact could reasonably find that clear and convincing evidence supports a finding by the trier of fact that defendant landlord acted in conscious disregard of the rights, health, and safety of plaintiff tenant.  [Krog Decl., Ex. 7, pp. 168-169, Response to Interrogatory No. 50.2; Compendium of Exhibits, Ex. 5, pp. 67-83, note, especially, pp. 72, 76, 77, 80, 84-95, 114-124; UMF No. 25, and evidence cited; Ahmad Dehal Decl., paras. 4-6, 8, 9, 10, 11, 13; Shireen Dehal Decl., paras. 4-7, 11, 12].  

The facts include correspondence from the landlord which suggests that there may have been advance familiarity with an insect/vermin problem at the premises, as well as delays during the tenancy itself in arranging for addressing a significant habitability problem.  [Compendium of Exhibits, Ex. 5, pp. 67-80, see particularly, pp. 70, 71 and 73]. 

Defendant Suzanna Abovyan’s Evidentiary Objections to Declaration of Ahmed Dehal in Support of Opposition to Motion for Summary Judgment or Alternatively, for Summary Adjudication of the Complaint:

Objection No. 1 is SUSTAINED IN PART. The objection is sustained only to the extent the statement that “We did not know” suggests that declarant is testifying as to the knowledge of any person other than plaintiff, for lack of personal knowledge.  Objection is otherwise OVERRULED. 

Remaining Objections are OVERRULED. 

Defendant Suzanna Abovyan’s Evidentiary Objections to Declaration of Shireen Dehal in Support of Opposition to Motion for Summary Judgment or Alternatively, for Summary Adjudication of the Complaint:

Objection No. 2 is SUSTAINED IN PART. The objection is sustained only to the extent the statement that “We did not know” suggests that declarant is testifying as to the knowledge of any person other than plaintiff, for lack of personal knowledge.  Objection is otherwise OVERRULED. 

Remaining Objections are OVERRULED.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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