Judge: Robert B. Broadbelt, Case: 21STCV05754, Date: 2022-10-26 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 21STCV05754    Hearing Date: October 26, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Alex Novack and Li Properties, LLC

RESPONDING PARTY:        Plaintiff Yvonne Mao MD, Inc.

Motion for Summary Adjudication

The court considered the moving, opposition, and reply papers filed in connection with this motion.

EVIDENTIARY OBJECTIONS 

The court declines to rule on the objections filed by Plaintiff on October 12, 2022, because Plaintiff’s objections are not directed to evidence that is material to the court’s disposition of Defendants’ motion.  (Code Civ. Proc., § 437c, subd. (q).)

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant or cross-defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “If the plaintiff cannot do so, summary judgment should be granted.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)  “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

1.     Third Cause of Action for Retaliatory Eviction

“California has two parallel and independent sources for the doctrine of retaliatory eviction.”  (Barela v. Superior Court (1981) 30 Cal.3d 244, 251.)  A tenant may bring a retaliatory eviction claim under Civil Code section 1942.5 or California common law.  (Ibid.)  Both section 1942.5 and common law “protect[] tenants against ‘retaliatory evictions,’ which are acts by a landlord that are intended to punish a tenant for his or her exercise of legally protected rights.”  (Cal. Civ. Prac. Real Property Litigation, Retaliatory Eviction Generally, § 22:8)  Under Civil Code section 1942.5, a landlord may not recover possession of a dwelling or cause its lessee to quit involuntarily within 180 days after, inter alia, a lessee has complained to the lessor regarding tenantability, or a lessee has filed a written complaint, or an oral complaint which is recorded in writing, with an appropriate agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability.  (Civ. Code, § 1942.5, subd. (a)(1), (a)(2).)  A common law cause of action for retaliatory eviction applies “to conduct that causes the tenant to involuntarily vacate the premises.”  (Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th 323, 328.) 

The court finds that Defendants have not met their burden of showing that the third cause of action for retaliatory eviction has no merit because Defendants have not shown that Plaintiff cannot establish one or more elements of a common law cause of action for retaliatory eviction. Defendants exclusively move for summary adjudication on the ground that Plaintiff cannot establish the elements of a statutory retaliatory eviction cause of action under Civil Code section 1942.5.  (Mot., pp. 5:11-7:15.)  In opposition, Plaintiff argues that it retains a right to bring a common law claim for retaliatory eviction, and that Plaintiff’s Complaint does not “mention” section 1942.5.  (Opp., p. 4:21-25.)

The court finds that Plaintiff’s Complaint states facts sufficient to allege a cause of action for retaliatory eviction under common law.  Plaintiff’s Complaint does not assert that its third cause of action is brought pursuant to Civil Code section 1942.5, is titled “RETALITORY [sic] EVICTION,” and broadly alleges that Defendants retaliated against Plaintiff for engaging in protected activity and exercising its legal rights.  (Compl., p. 8:4; Compl., ¶ 29.)  Because Defendants did not present evidence or argument showing that Plaintiff cannot establish one or elements of a common law retaliatory eviction cause of action, the court finds that Defendants have not met their burden of showing that the third cause of action has no merit.  Although, in their reply, Defendants attempt to address the sufficiency of any common law claim for retaliatory eviction, and in particular challenge the element of eviction, Defendants did not raise this argument in support of their moving papers and therefore cannot rely on this argument to meet their initial burden.  (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538 [“‘[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument’”].) 

The court therefore denies Defendants’ motion for summary adjudication as to the third cause of action for retaliatory eviction.

ORDER

            The court denies defendants Alex Novack and Li Properties, LLC’s motion for summary adjudication to plaintiff Yvonne Mao MD, Inc.’s third cause of action for retaliatory eviction.

The court orders Yvonne Mao MD, Inc. to give notice of this ruling.

IT IS SO ORDERED.

DATED:  October 26, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court