Judge Teresa A. Beaudet, Case Number: 21STCV03095, Date: 2023-11-02 Tentative Ruling

CAROL M. SONI (AKA SYLMARAH BARUTI), et al. Plaintiffs, vs. KIM B. PRIESTLEY, et al. Defendants.	Case No.:	21STCV03095
	Hearing Date:	March 7, 2024
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: DEFENDANTS KIM B. PRIESTLEY AND DARRYL H. PRIESTLEY’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Plaintiffs Carol M. Soni aka Sylmarah Baruti (“Soni”) and The Estate of Obalajii Khepheren Rust (the “Estate”) (jointly, “Plaintiffs”) filed this action on January 26, 2021 against Defendants Kim B. Priestley and Darryl H. Priestley (jointly, “Defendants”). The Complaint alleges causes of action for (1) wrongful eviction, (2) intentional infliction of emotional distress, (3) conversion, and (4) defamation per se: filing a false police report.

Defendants now move for an order granting summary judgment, or in the alternative, summary adjudication in favor of Defendants and against Plaintiffs as to all causes of action alleged in Plaintiffs’ Complaint. Soni opposes.

Request for Judicial Notice and Supplemental Declaration of Kim B. Priestley

The Court denies Defendants’ request for judicial notice in support of Defendants’ reply. The Court also declines to consider the Declaration of Kim B. Priestley filed in support of Defendants’ reply. The Court notes that “¿[t]he general rule of motion practice…is that new evidence is not permitted with reply papers.¿” (¿Jay v. Mahaffey¿(2013) 218 Cal.App.4th 1522, 1537¿.)

In connection with the reply, Defendants filed a document titled “Defendants Kim B. Priestley and Darryl H. Priestley’s Objections and Response to Plaintiff’s Additional Separate Statement of Undisputed Material Facts.” This document appears to contain evidentiary objections. However, the document is not in compliance with California Rules of Court, rule 3.1354, subdivision (b), which provides that “[a]ll written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement.” Thus, the Court declines to consider any purported evidentiary objections contained in Defendants’ “Objections and Response to Plaintiff’s Additional Separate Statement of Undisputed Material Facts.”

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ((Code Civ. Proc., § 437c, subd. (c).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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.” ((Id., § 437c, subd. (f)(1).)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ((Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ((Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

When a defendant seeks summary judgment or summary adjudication, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. ((Code Civ. Proc., § 437c, subd. (p)(2).)

In the Complaint, Plaintiffs allege that prior to 2010, Obalajii Khepheren Rust (“Mr. Rust”) became a tenant at the property located at 1933 W. Martin Luther King Blvd, Los Angeles, California 90062 (the “Subject Property”) pursuant to a written Lease Agreement. (Compl., ¶¶ 5, 7.) Mr. Rust’s tenancy fell within “Section 8” housing. (Compl., ¶ 7.)

From September 2013, Soni began living with Mr. Rust at the Subject Property about five days a week. (Compl., ¶ 8.) On August 20, 2019, Soni and Mr. Rust were married, and Soni continued to live at the Subject Property. (Compl., ¶ 9.)

On July 29, 2020, Mr. Rust passed away. (Compl., ¶ 13.) On July 31, 2020, Defendants, without warning, changed the locks on the Subject Property. (Compl., ¶ 14.) Soni contacted the Los Angeles Police Department (“LAPD”), and when they arrived on July 31, 2020, they deemed the lockout to be “illegal.” (Compl., ¶ 15.) The LAPD officers instructed Defendants to give Soni a key to the Subject Property, but Defendants refused to do so. (Compl., ¶ 15.) LAPD officers advised Soni to get a locksmith to gain access to the Subject Property. (Compl., ¶ 15.)

Soni returned the following morning with a locksmith to allow her to gain entry to the Subject Property, but the property manager began to harass the locksmith and prevent the locksmith from gaining access to the Subject Property. (Compl., ¶ 17.) Soni called LAPD again. (Compl., ¶ 17.)

Shortly thereafter, Priestley and the property manager arrived, called LAPD themselves, and falsely reported to LAPD that Soni was brandishing a knife at them. (Compl., ¶ 18.) When LAPD arrived, they presented stun guns and other weapons. (Compl., ¶ 19.) LAPD gave Soni

10 minutes to get her belongings from the Subject Property, but SONI informed LAPD that she was unable to acquire all of her belongings at that moment as she was without boxes and did not have a place to stay. (Compl., ¶ 19.)

Soni returned to the Subject Property with boxes, but the locks had been changed and the Subject Property was locked. (Compl., ¶ 22.) Soni called LAPD again but was informed that there was nothing they could do. (Compl., ¶ 22.) Despite repeated attempts by Soni to be permitted back into the Subject Property, Defendants have refused. (Compl., ¶ 23.) On or about August 8, 2020, after Soni’s most recent request for the return of her personal property, Defendants caused some Plaintiffs’ personal property to be thrown out onto the street in garbage bags. (Compl., ¶ 25.) However, not all property was “returned.” (Compl., ¶ 25.)

Defendants assert that Soni was not a tenant on Mr. Rust’s lease contract and thus does not have standing to bring a wrongful eviction action. Defendants also assert that Soni did not have permission or consent to live as a tenant at Mr. Rust’s apartment.

In her supporting declaration, Kim B. Priestley states that “Obalajii Rust…entered into a contract with Section 8 and my husband, Darryl Priestley, and me on March 17, 2010 for an apartment located at 1933 W. Martin Luther King Jr. Blvd. in Los Angeles, Ca. 90062, as a single man.” (Kim Priestley Decl., ¶ 1.) Kim B. Priestley further states that “Plaintiff Carol Soni (aka Sylmarah Baruti) is not a tenant, did not live at, and did not have me or my husband’s permission to live at Mr. Rust’s apartment at 1933 W. Martin Luther King Jr. Blvd., Los Angeles, CA. 90062. Plaintiff never made any promise or offer to me or my husband to pay rent for Mr. Rust’s apartment.” (Kim Priestley Decl., ¶ 5.)

Defendants cite to Federal Ins. Co. v. Steadfast Ins. Co. (2012) 209 Cal.App.4th 668, 671, where “[t]he United States brought an action against the insureds—the Sterling defendants—for discrimination under the Fair Housing Act (42 U.S.C. section 3601 et seq.) (Sterling action). The primary insurance carriers, Steadfast Insurance Company…and Liberty Surplus Insurance Corporation…insured against claims for wrongful eviction, wrongful entry, and invasion of the right of private occupancy. The excess and umbrella insurance carrier, Federal Insurance Company…insured against those claims and specifically insured against claims for discrimination.” (Internal quotations omitted.) The Court of Appeal found that “[a]lthough the discrimination alleged in the Sterling action may have been based in part on acts that might involve wrongful evictions, wrongful entries, or invasions of the right of private occupancy, the gravamen of the action itself was solely for housing discrimination under the Fair Housing Act. The Sterling action cannot be construed as asserting common law theories of wrongful eviction, wrongful entry, or invasion of the right of private occupancy. Only the tenant can claim wrongful eviction, wrongful entry, or invasion of the right of private occupancy.” (Id. at p. 682, emphasis added.)

“The forcible entry statute protects a ‘party in possession.’ (Code Civ. Proc., § 1159.) ‘The ‘party in possession’ refers to any person who ‘hires’ real property.’ (Friedman et al., Cal. Practice Guide: Landlord—Tenant, supra, ¶ 7:6, p. 7-3 (rev. # 1, 2006); see Civ. Code, §§ 1925, 1940.) With exceptions for transient hotel guests, that includes ‘all persons who hire dwelling units located within this state including tenants, lessees, boarders, lodgers, and others, however denominated.’ (Civ. Code, § 1940, subd. (a).) At trial, the plaintiff is required to show only ‘that he was peaceably in the actual possession at the time of the forcible entry.’ (Code Civ. Proc., § 1172.) The forcible detainer statute protects the ‘occupant of real property,’ meaning one ‘in the peaceable and undisturbed possession of such lands.’ (Code Civ. Proc., § 1160; see Moldovan v. Fischer (1957) 149 Cal.App.2d 600, 607 [308 P.2d 844].) For occupants in peaceful possession of real property, these statutes offer protection from self-help, without regard to the parties’ legal claims to title or possession. ‘The statutes … reflect a policy, with deep roots in English law, barring the use of forceful self-help to enforce a right to possession of real property and requiring instead the use of judicial process to gain possession.’” ((Spinks v. Equity Residential Briarwood Apartments, supra, 171 Cal.App.4th at pp. 1037-1038.)

The Spinks Court further found that “[b]oth before and after the enactment of the present forcible entry and detainer statutes this court held that ownership or right of possession[1] to the property was not a defense to an action for forcible entry. Witkin explains: A tenant holding over without permission is technically a trespasser. But by statute the owner must use the unlawful detainer procedure, and, if the owner ousts the tenant forcibly, the tenant may regain possession by an action for forcible entry. Landlords thus may enforce their rights only by judicial process, not by self-help. Regardless of who has the right to possession, orderly procedure and preservation of the peace require that the actual possession shall not be disturbed except by legal process.” ((Id. at p. 1038 [internal quotations and citations omitted].)

Defendants also assert that Soni “was not in peaceable possession of the premises as she admitted that she did not live there…and was witnessed by residents as a guest on the property without her own set of keys to the front gate of the property.” (Mot. at p. 14:10-13.) Ms. Priestley states that “Plaintiff told my [sic] by phone on July 30, 2020, that she has never lived with Obalajji Rust, she lived in the valley and didn’t like Obalajii Rust’s unit because it was too small and noisy.” (Kim Priestley Decl., ¶ 9.) Ms. Priestley also states that “[a]ll tenants have keys, provided to them by the landlord, to the front gate to enter the property.” (Priestley Decl., ¶ 6.) Defendants submit the Declaration of Patrick Myers, who states that he lived at 1935 West Martin Luther King Blvd, Los Angeles California 90062 since July 13, 2005. (Myers Decl., ¶ 1.) Mr. Myers states that “I had conversation [sic] with Obalajii Rust regarding Carol M. Soni/Sylmarah, he asked me why I would not open the gate for his friend to enter the apartment building, and my response was she’s your guest not mine. There were times I would stay in my car when I saw her at the gate, I would wait until Obalajii Rust would open the gate for her, than [sic] I would go to my unit.” (Myers Decl., ¶ 3.)

Soni asserts that she was in peaceable possession of the subject apartment at the time of Mr. Rust’s death. In her supporting declaration, Soni states that “[a]t the time of our marriage, Mr. Rust resided in a Section 8 apartment located at 1933 W. Martin Luther King Jr. Blvd., Los Angeles, California 90062 (the ‘Subject Apartment’.)…Following our marriage and continuing through the time of Mr. Rust’s death, I resided in the Subject Apartment with Mr. Rust…It was well known around the apartment complex that I resided in the Subject Apartment with Mr. Rust.” (Soni Decl., ¶¶ 3-5.) Soni also submits the declaration of Recoe Walker, who states that “I live at 1929 1/2 West Martin Luther King, Jr. Blvd. Los Angeles CA 90062. I am a very close neighbor to [Mr. Rust], and I have known him for about 11 years. He has been in the building much longer than I did. I know that [Mr. Rust] and SONI were married because he told me…They lived together in his home located at 1933 W. Martin Luther King Jr. Los Angeles CA 90062 for over 7 years.” (Walker Decl., ¶ 1.) The Walker declaration further provides that “[m]y apartment is so close to them that I can see their comings and goings etc. I have seen her bringing in groceries, doing laundry, I have seen her driving [Mr. Rust] to hospitals and also taking care of him after he became sick until his death.” (Walker Decl., ¶ 2.)

In light of the foregoing, the Court finds that Soni has raised a triable issue of material fact as to whether she was “in peaceful possession of” the subject property. ((Ibid.)[2]

Based on the foregoing, the Court does not find that Defendants have shown that summary adjudication of the first cause of action is warranted.

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” ((Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.) In the Complaint, Plaintiffs allege that “Defendants…took possession of Plaintiffs personal property and belonging [sic] with the intent to permanently establish dominion over those items, including but not limited to Plaintiff SONI’s personal laptop, which has never been returned.” (Compl., ¶ 47.)

In the motion, Defendants assert that they are “an improper party for the conversion cause of action as they were not present in California when the alleged dispossession of Plaintiff’s belongings occurred.” (Mot. at p. 16:9-11.) In her supporting declaration, Ms. Priestley states that “[a]t the time of Mr. Rust’s death on July 29, 2020, my husband and I were out of the state and overseas in St. Croix, Virgin Islands. While we were in St. Croix, my daughter was in charge of our rental properties at 1933 W. Martin Luther King Jr. Blvd. in Los Angeles, Ca. 90062.” (Kim Priestley Decl., ¶ 8.)

In the opposition, Soni asserts that Defendants are liable for “conversions committed by their agents, including their grown children, their property managers, and/or Gigi Rust…” (Opp’n at p. 14:1-2.) Soni cites to NoNoble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654, 663, where the Court of Appeal noted that “a principal may be liable for the torts of an agent committed in the scope of authority…” In her supporting declaration, Soni states that “the lock on [sic] front door was changed on July 31, 2020 - within two days of the date that Mr. Rust died.” (Soni Decl., ¶ 26.) Soni also states that “[t]he Priestleys admit that they authorized Gigi Rust to access the Subject Apartment and to remove items that Gigi believed in her sole discretion to belong to Mr. Rust…The Priestleys did so based on their position that Gigi Rust is Mr. Rust’s next of kin.” (Soni Decl., ¶¶ 41-42.)[3]

In the motion, Defendants also assert that “if the [Defendants] are potentially liable on an agency or similar theory with regard to conversion, they retain a full affirmative defense of acting on a good faith belief that Plaintiff was not a tenant or spouse of Mr. Rust and conformed their actions with governing law.” (Mot. at p. 17:17-21.) In support of this assertion, Defendants cite to Giacomelos v. Bank of America Nat'l Trust & Sav. Asso. (1965) 237 Cal.App.2d 99, 100-101, where the Court of Appeal noted that “[c]onversion is an intentional exercise of dominion over a chattel which interferes with the right of another to control it. The good faith of the bank is conceded, but, admittedly, is not a defense. The law does recognize the dilemma of one in possession as a bailee or similar holder upon demand by a third party for the goods. Such holder does not become a converter by making a qualified refusal to surrender if his real and stated purpose is to secure a reasonable opportunity to inquire into the claimant’s right.” (Internal citations omitted.) But here, Defendants do not appear to provide any evidence demonstrating that Defendants’ “real and stated purpose [was] to secure a reasonable opportunity to inquire into the claimant’s right…” (Giacomelos v. Bank of America Nat'l Trust & Sav. Asso., supra, 237 Cal.App.2d at p. 101.)

Defendants also cite to Church of Scientology v. Armstrong (1991) 232 Cal.App.3d 1060, 1072, where the Court of Appeal noted that “[w]ith respect to plaintiffs’ causes of action for conversion, [o]ne is privileged to commit an act which would otherwise be a trespass to or a conversion of a chattel in the possession of another, for the purpose of defending himself or a third person against the other, under the same conditions which would afford a privilege to inflict a harmful or offensive contact upon the other for the same purpose. For the purpose of defending his own person, an actor is privileged to make intentional invasions of another’s interests or personality when the actor reasonably believes that such other person intends to cause a confinement or a harmful or offensive contact to the actor, of that such invasion of his interests is reasonably probable, and the actor reasonably believes that the apprehended harm can be safely prevented only by the infliction of such harm upon the other. A similar privilege is afforded an actor for the protection of certain third persons.” (Internal quotations and citations omitted.) But Defendants do not appear to argue that they made “intentional invasions of another’s interests or personality when [Defendants] reasonably believe[d] that such other person intends to cause a confinement or a harmful or offensive contact to [Defendants]…” (Church of Scientology v. Armstrong, supra, 232 Cal.App.3d at p. 1072.) Thus, the Court does not see how Armstrong is relevant here.

Defendants also assert that “Plaintiff was permitted to take her belongings from Mr. Rust’s apartment on at least two occasions” and that “Plaintiff…rejected her own belongings when given a final chance to collect them.” (Mot. at p. 17:2-3; 17:8-9.) Defendants note that “the law is well settled that there can be no conversion where an owner either expressly or impliedly assents to or ratifies the taking, use or disposition of his property.” ((Farrington v. A. Teichert & Son, Inc. (1943) 59 Cal.App.2d 468, 474.)

In her supporting declaration, Kim B. Priestley states that “I was advised by my daughter that Plaintiff came to the property on July 31, 2020 with a locksmith and the police arrived. Video taken by my daughter shows that Plaintiff had the opportunity to take her belongings out of Mr. Rust’s property and that the officer advised my daughter to notify the next of kin for Mr. Rust to turn the apartment over to them.” (Kim Priestley Decl., ¶ 12.) In addition, Defendants submit the Declaration of Phyllis Bordenave-Priestley, who states that her mother is Kim Bordenave-Priestley. (Phyllis Bordenave-Priestley Decl., ¶ 1.) Phyllis Bordenave-Priestley states that “[o]n or about August 8, 2020, Carol M. Soni/Sylmarah Baruti returned to 1933 W MLK Jr. Blvd Los Angeles, CA 90062 and Gigi Rust (Obalajii Rust’s daughter) called LAPD…Gigi Rust…had placed some bags of lady items out by the gate for Carol M. Soni/Sylmarah Baruti to take, and Carol M. Soni/Sylmarah Baruti said they were not her items and refused to take them. I took a video of Carol M. Soni/Sylmarah Baruti refusing to take the bags and walked away [sic].” (Phyllis Bordenave-Priestley Decl., ¶ 3.)

In the opposition, Soni counters that “[o]n or about August 8, 2020, some bags containing goods of little, or no value were left outside of the Subject Apartment. I do not know the identities of the person or persons or placed the bags there.” (Soni Decl., ¶ 44.)

In addition, Soni asserts that “the Priestleys allege that Mrs. Soni was permitted to enter the Subject Apartment on August 1, 2020, to collect her belongings. By then, however, several valuable items were missing. A full list of Mrs. Soni’s missing personal effects is contained in Exhibit H.” (Opp’n at p. 14:12-15.) In her declaration, Soni states that “[m]any valuable items were taken from the Subject Apartment that belonged to Mr. Rust and/or me, and I have wholly lost possession and control over these missing items.” (Soni Decl., ¶ 45.) Soni further states in her declaration that “I compiled an itemized list of these missing belongings. (A true and correct copy of the Itemized list of Belongings that Plaintiff Was Unable to Retrieve from the Subject Apartment is attached hereto as Exhibit H, as listed in Plaintiffs Index of Evidence.).” (Soni Decl., ¶ 46.) It appears Soni is referring to Exhibit 7, which is labeled as an “Itemized List of Belongings that Plaintiff Was Unable to Retrieve from the Subject Apartment.” This list includes, inter alia, furniture, men’s clothing, women’s clothing, medical items, kitchen items, technology, books, and coin collections. (See Soni’s Exhibit 7.)

In light of the foregoing, the Court finds that Soni has raised a triable issue of material fact as to whether Soni “ratifie[d] the taking, use or disposition of [Plaintiffs’] property.” (Mot. at p. 17:11.) Thus, based on the foregoing, the Court does not find that summary adjudication of the third cause of action is warranted.

In the fourth cause of action, Plaintiffs allege that “KIM B. PRIESTLEY filed, or caused to be filed, a false police report on or about July 31, 2020, when she informed LAPD that Plaintiff SONI was wielding a knife at or near the Subject Property.” (Compl., ¶ 53.) Plaintiffs allege that “Plaintiff SONI was not, in fact, wielding a knife, or even in possession of a knife at the time Defendant KIM B. PRIESTLEY made the false claim to LAPD.” (Compl., ¶ 54.)

Defendants assert that “there is no triable issue of fact as to defamation per se and/or making a false police report.” (Mot. at p. 18:17-18.) In her declaration, Kim Priestley states that “[a]s my husband and I-- the only named defendants in this action-- were not in California at the time Plaintiff was at Mr. Rust’s apartment, as we were overseas in St. Croix, Virgin Islands, we were unable to call the police as Plaintiff alleges.” (Kim Priestley Decl., ¶ 13.)

In the opposition, Soni asserts that “[c]ontrary to the Priestleys’ contentions, the fact that they were not in California at the time the 911 call was made on August 1, 2020, does not shield them from liability on Mrs. Soni’s defamation claim. This is because an employer or principal such as the Priestleys may be held liable for a defamatory statement made by its employee or agent.” (Opp’n at p. 14:14-17.) In support of this assertion, Soni cites to Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 284, where the Court of Appeal noted that “[u]nder principles of respondeat superior, an employer may be held liable for a defamatory statement made by its employee.” But here, Soni’s third cause of action does not contain allegations regarding a defamatory statement allegedly made by an employee of Defendants. Moreover, as noted by Defendants, Soni does not appear to provide any evidence that an employee of Defendants called the police on Soni.

Defendants also assert that “[p]rior to January 1, 2021, when a citizen contacted law enforcement to report a suspected crime, then-Civil Code § 47 barred slander and defamation claims.” (Mot. at p. 19:2-3.) As set forth above, Plaintiffs allege that “Defendant KIM B. PRIESTLEY filed, or caused to be filed, a false police report on or about July 31, 2020…” (Compl., ¶ 53.) Defendants cite to Williams v. Taylor (1982) 129 Cal.App.3d 745, 753, where the Court of Appeal noted that “[Civil Code] Section 47, subdivision 2, provides for an absolute privilege with regard to statements made ‘in any . . . official proceeding authorized by law.’ In our view, a communication concerning possible wrongdoing, made to an official governmental agency such as a local police department, and which communication is designed to prompt action by that entity, is as much a part of an ‘official proceeding’ as a communication made after an official investigation has commenced.”

Defendants acknowledge that Civil Code section 47, subdivision (b)(5) now provides that “[t]his subdivision does not make privileged any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.” Defendants state that this provision was added to Civil Code section 47 on January 1, 2021, citing Stats 2020 ch 327 § 2 (AB 1775), effective January 1, 2021. (See Civ. Code, § 47; see also 2020 Cal ALS 327, 2020 Cal AB 1775, 2020 Cal Stats. ch. 327, “[t]his bill would additionally create an exception to the privilege provisions for any communication between a person and a law enforcement agency in which the person knowingly or recklessly makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention.”)

Defendants note that Civil Code section 3 provides that “[n]o part of it is retroactive, unless expressly so declared.” Defendants accordingly assert that Civil Code section 47 provides for a privilege with regard to the alleged false police report allegedly filed in July 2020. (Compl., ¶ 53.) In the opposition, Soni concedes as to Civil Code section 47, subdivision (b)(5) that “courts have determined that the amendment is not retroactive.” (Opp’n at p. 15:25.)

In the opposition, Soni also cites to Abuemeira v. Stephens (2016) 246 Cal.App.4th 1291, 1299, where the Court of Appeal noted that “[r]epublications to nonparticipants in the action are not privileged and are actionable unless privileged on some other basis…Thus, the litigation privilege does not apply to publications to the general public through the press.” But the Court does not see how this is relevant, as Plaintiffs’ action here does not concern alleged publications made through the press.

In light of the foregoing, the Court finds that Defendants have met their burden of demonstrating that the fourth cause of action is without merit, and that Soni has failed to raise a triable issue of material fact regarding this cause of action. Thus, the Court finds that summary adjudication of the fourth cause of action is warranted.

“The elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct…Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community…The defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result.” ((Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001 [internal quotations omitted].)

In the Complaint, Plaintiffs allege that “Defendants’ conduct was extreme, outrageous, and egregious. Defendants, and each of them, locked out the wife of a legal tenant, two days after the death of her husband without legal basis, without warning, and without notice. Defendants treated Plaintiff SONI with hostility, contempt, and malice, going so far as to throwing some of her personal belongings onto the street in garbage bags after refusing her entry to the Subject Property and retaining her personal laptop.” (Compl., ¶ 41.)

In the motion, Defendants assert that they “have the affirmative defense that they were protecting their rights or the rights of others (Mr. Rust’s estate and next of kin) by denying Plaintiff entry into the unit during a time when Plaintiff was unable to prove her marriage and lacked a valid marriage license to Mr. Rust.” (Mot. at p. 20:14-17.) In her supporting declaration, Ms. Priestley states that “Plaintiff informed me over the phone on or around July 30, 2020, that she and Mr. Rust were married, but refused to prove any proof of the marriage. When I asked for marriage license, Plaintiff’s reply was that she did not have to prove anything to me.” (Kim Priestley Decl., ¶ 10.) Defendants further contend that they “were exercising their legal rights and protecting their economic interests as their duties as landlord was to secure the deceased Mr. Rust’s apartment to transfer it to his next of kin.” (Mot. at pp. 20:28-21:2.) As set forth above, Ms. Priestley states that “the officer advised my daughter to notify the next of kin for Mr. Rust to turn the apartment over to them.” (Kim Priestley Decl., ¶ 12.)

Soni asserts that questions of material fact exist as to the second cause of action. The Court agrees. Soni cites to Spinks v. Equity Residential Briarwood Apartments, supra, 171 Cal.App.4th at pages 1045-1046, where the Court of Appeal found that “[a]ccording to defendants, the first element of the claim can be resolved as a matter of law in this case, since there is simply no evidence of outrageous conduct here. In defendants’ view, their conduct cannot be considered outrageous, as it amounted to nothing more than changing the lock of an apartment at the request of [their] tenant, Mobile Medical, after [plaintiff’s employment] assignment was terminated. We reject defendants’ contention that they have established lack of outrageousness as a matter of law. First, as a general principle, changing the locks on someone’s dwelling without consent to force that person to leave is prohibited by statute…Though defendants’ agents were polite and sympathetic towards plaintiff, they nevertheless caused her to leave her home without benefit of judicial process. As stated in Richardson v. Pridmore: While in the present case no threats or abusive language were employed, and no violence existed, that is not essential to the cause of action. An eviction may, nevertheless, be unlawful even though not accompanied with threats, violence or abusive language. Here the eviction was deliberate and intentional. The conduct of defendants was outrageous. They must be held responsible for the damages caused by their deliberate and intentional acts.” (Internal quotations and citations omitted.) As discussed, Soni states here that “the lock on front door was changed on July 31, 2020,” and that “[w]hen I arrived at the Subject Apartment on July 31, 2020, I was unable to gain entry into the Apartment because the locks had been changed.” (Soni Decl., ¶¶ 26, 27.)

The Spinks Court further found that “the record demonstrates that plaintiff was particularly vulnerable at the time of defendants’ unlawful entry. She returned home after reconstructive surgery, with her arm in a cast. The very next day, plaintiff received notification that Mobile wanted her out of the premises. The day after that, she was gone from the apartment. Plaintiff told defendants’ employees that she was seriously injured and under doctors’ orders to use her arm as little as possible. She informed them that she had been terminated from her employment and had no[] other place to reside. And defendants’ onsite property manager acknowledged that she was concerned for plaintiff’s welfare when asked to change the locks. This evidence of vulnerability is relevant in considering whether defendants acted outrageously.” (Spinks v. Equity Residential Briarwood Apartments, supra, 171 Cal.App.4th at p. 1046 [internal quotations omitted].) Here, Soni states that “the lock on front door was changed on July 31, 2020 - within two days of the date that Mr. Rust died.” (Soni Decl., ¶ 26.) Soni further states that “[p]rior to Mr. Rust’s death, the Priestleys were fully aware that Mr. Rust and I were married.” (Soni Decl., ¶ 24.)

Defendants also assert that they “were not physically present in California at the time and did not personally handle any of Plaintiff’s belongings in any way or make any police reports.” (Mot. at p. 20:17-19.) But as discussed, Plaintiffs also allege that “Defendants…locked out the wife of a legal tenant…” (Compl., ¶ 41.) The Court notes 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.” (Code Civ. Proc., § 437c, subd. (f)(1).)

In light of the foregoing, the Court finds that Soni has raised triable issues of material fact regarding the second cause of action for intentional infliction of emotional distress. Thus, based on the foregoing, the Court does not find that summary adjudication of the second cause of action is warranted.

In the motion, Defendants assert that punitive damages are not warranted. However, in the reply, Defendants appear to abandon their motion for summary adjudication of Plaintiffs’ punitive damages claims. Specifically, Defendants state that “Defendants acknowledge their error in requesting the Court strike punitive damages as a separately adjudicated matter and leave the issue to summary judgment in the entirety.” (Reply at p. 13:4-5.) As set forth herein, Defendants’ motion for summary judgment is denied. Accordingly, the Court denies Defendants’ motion for summary adjudication of Plaintiffs’ prayer for punitive damages.

Lastly, Defendants assert that “Plaintiff did not obtain a Court order establishing her marriage to Mr. Rust until September 21, 2020—several weeks after all alleged wrongdoing by Defendants occurred. Therefore, Plaintiff does not have standing to assert any claims on behalf of the Estate of Mr. Rust in this action. Defendants request that the Court grant Defendants’ Motion for Summary judgment as to Plaintiff the Estate of Obalajii Khephren Rust for that reason.” (Mot. at p. 23:4-8.) But as noted by Soni, Defendants fail to cite any legal authority to support this assertion.

Defendants also assert that “Plaintiff does not allege any facts unique to the Estate; all claims are based upon Plaintiff’s experience and interaction with Defendants, their daughter, GiGi Rust, and others at the Priestley’s property.” (Mot. at p. 23:8-10.) Defendants assert that accordingly, “the Estate’s claims fail for the same reasons stated herein with regard to each of Plaintiff’s claims.” (Mot. at p. 23:10-11.) But the Complaint does contain allegations concerning the Estate. (See, e.g., Compl., ¶¶ 14, 16, 23, 24, 25, 26, 27.) The Complaint also contains a number of allegations concerning “Plaintiffs.”

Based on the foregoing, the Court does not find that Defendants have met their burden of demonstrating that the Estate’s claims fail.

Defendants’ motion for summary adjudication is granted as to the fourth cause of action.

Defendants’ motion for summary adjudication is denied as to the first, second, and third causes of action, and Plaintiffs’ prayer for punitive damages.

[1]As set forth above, Defendants assert that Soni did not have Defendants’ permission or consent to live as a tenant at Mr. Rust’s apartment. (Mot. at p. 14:23-24.)

[2]See also Spinks v. Equity Residential Briarwood Apartments, supra, 171 Cal.App.4th at page 1039, “[t]he statutory remedies are not exclusive. Quite apart from the statutes, a person in peaceable possession of real property may recover, in an action sounding in tort, damages for injuries to his person and goods caused by the forcible entry of one who is, or claims to be, the lawful owner or possessor…” (Internal quotations omitted.)

[3]In the motion, Defendants asserts that “the Preiestleys, as landlord, are obligated to transfer the apartment unit of a deceased tenant to his estate, which the Priestleys did by transferring control over the unit and its contents to GiGi Rust. As the Priestleys’ daughter, Phyllis, was present on the Priestleys’ property at the time, she did effectuate this transfer to GiGi Rust.” (Mot. at p. 16:23-27.)

Superior Court of California

County of Los Angeles

Department 50