Judge Thomas D. Long, Case 19STCV28978 2022-08-16 Tentative Ruling

On July 6, 2021, Plaintiffs Sonia Calderon, Alexia Lopez, Genesis Lopez, and Renando Mixon (collectively, “Plaintiffs”) filed a first amended complaint (“FAC”) against Defendants Leonidas Ramirez, Dolores Ramirez, Rafael Ramirez, Leo Baltazar Ramirez & Dolores Ramirez Living Trust, Leo Baltazar Ramirez as Trustee, and Dolores Ramirez as Trustee (collectively, “Defendants”).

On June 2, 2022, Defendants filed a motion for summary judgment, or in the alternative, summary adjudication. Plaintiffs filed a late opposition on August 8, 2022.

The Subject Property, located at 1640 and 1642 West 37th Street in Los Angeles, California was owned by Leonidas Ramirez and Dolores Ramirez since 1984, with ownership being transferred to a family trust in 2020. (Undisputed Material Facts “UMF” 1.) Rafael Ramirez also became increasingly involved in the management of the Subject Property as his father aged. (UMF 9.) The Subject Property was a rent-controlled unit under the laws of the County of Los Angeles. (UMF 7.)

Sonia Calderon and her family had been residents of the Subject Property since approximately 2010. (UMF 2.) Sonia Calderon’s daughter, Alexia Lopez, is disabled with a metabolic disorder resulting in quadriplegia and convulsions and requiring ongoing nursing care. (UMF 3.) Sonia Calderon signed a one-year lease agreement that was subsequently renewed since that time until the fire. (UMF 4.) Renando Mixon moved into the Subject Property in 2010, also with a lease agreement in place. (UMF 5.)

During her tenancy, Sonia Calderon had numerous interactions with Defendants, including monthly interactions in which Leonidas Ramirez would personally collect rent amounts due. (UMF 8.) She had two interactions in which Leonidas Ramirez indicated that the family needed to vacate the Subject Property. (UMF 10.) The first instance occurred in early-2015, when Leonidas Ramirez stated that he may needed to raise the rental amount for the unit or potentially initiate eviction proceedings of the Calderon family because Sonia Calderon’s daughter had come to reside with the family for approximately one year. (UMF 11.) The second event occurred approximately eight months before the fire. (See UMF 12-13.)

On August 2, 2018, Rafael Ramirez and another unlicensed handyman, Juan, performed repairs in the bathroom of the unit occupied by Sonia Calderon and her family. (UMF 15, 17, 19.) Prior to that day, the repairs had been ongoing for approximately one month, necessitated by mold discovered in the bathroom. (UMF 16.) Rafael Ramirez and Juan began repairs at approximately noon. (UMF 18.) At approximately 12:20 p.m., Rafael Ramirez left the unit, while Juan continued performing the repairs. (UMF 20.) Approximately five minutes before the fire was discovered, Juan also left the Calderon unit, indicating that he needed to obtain a different faucet valve to complete the repairs. (UMF 21.) At approximately 12:40 p.m., the fire was discovered by Sonia Calderon’s husband, who observed smoke in the bathroom area. (UMF 22.) Sonia Calderon called emergency personnel regarding the fire before evacuating the unit with her family. (UMF 23.) She was able to evacuate her residential unit within several minutes. (UMF 24.) Renando Mixon was not present at the time of the incident. (UMF 25.)

The fire was extinguished approximately two hours after Los Angeles City Fire Department personnel arrived on-scene. (UMF 26.) In a subsequent conversation with Los Angeles City Fire Department personnel, Sonia Calderon was informed of the danger of her daughter’s oxygen tanks being in the unit during the fire at issue. (UMF 27.)

Los Angeles City officials inspected the Subject Property and “Yellow Tagged” it due to its condition. (UMF 31.) Such a designation requires repair of a portion of the property for complete habitability but does not bar access to the Subject Property. (UMF 32.) The Subject Property remained habitable, with a toilet, sink, and bathtub remaining present in the two units. (UMF 33.) No smell of smoke or damage to the units outside of the bathroom was present. (UMF 34.) A two-day repair order was subsequently issued. (UMF 35.)

Sonia Calderon sought no medical care or treatment, and Renando Mixon has received no mental health care or treatment following the incident. (UMF 29-30.)

For each claim in the complaint, the defendant moving for adjudication must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)

Defendants do not move for summary adjudication of the eighth cause of action for negligence. Because Defendants move on fewer than all causes of action, summary judgment of the entire action is denied.

A. First Cause of Action – Unlawful Actions by Landlord to Influence Tenant to Vacate

The first cause of action is brought by Sonia Calderon and Renando Mixon against Leonidas Ramirez, Dolores Ramirez, and Rafael Ramirez, alleging violation of Civil Code section 1940.2.

It is unlawful for a landlord to, for the purpose of influencing a tenant to vacate a dwelling, “[u]se, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant’s quiet enjoyment of the premises . . . that would create an apprehension of harm in a reasonable person.” (Civ. Code, § 1940.2, subd. (a)(3).)

Defendants argue that Plaintiffs “allege violations of Civil Code §1940.2 against Defendants herein associated with the repair of the bathroom,” and “there is no evidence submitted by Plaintiffs that establish the repairs were for any purpose other than maintaining the Subject Property. Certainly, making the repairs to the Subject Property were not being done for the purpose of removing Plaintiffs from the property or that the fire was in any way intentionally begun.” (Motion at p. 14.) However, this addresses only some of the allegations. The FAC also alleges that Defendants “made threats of eviction without cause to Plaintiff Calderon and her family throughout the tenancy and engaged in a course of conduct that interfered with Plaintiff Calderon, Alexia and Genesis’ quiet enjoyment of the Calderon Unit and created an apprehension of harm in a reasonable person.” (FAC ¶ 22.) Defendants “engaged in veiled threats by telling Plaintiff Calderon that she and her family would be evicted and that they should leave the Calderon Unit since they were paying far below market value for the unit. They used Plaintiff Calderon’s daughter’s health, Alexia, as a pretext to have her move out so that a new tenant could move in and pay a much higher rent.” (Id. at ¶ 23.) The harassment culminated with the welding in the bathroom that caused the fire. (Id. at ¶ 25.)

Even if the only basis for this cause of action is the repairs that led to the fire, Defendants have not met their burden. Defendants contend that “there is no evidence submitted by Plaintiffs that establish the repairs were for any purpose other than maintaining the Subject Property,” but this is insufficient. Summary judgment law “continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 (Aguilar), footnote omitted.) Defendants must therefore “present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855.) Defendants have not done so.

Because Defendants have not shown that Plaintiffs cannot establish all elements of this cause of action or that there is a complete defense, summary adjudication is denied.

The second cause of action is brought by all Plaintiffs against Leonidas Ramirez, Dolores Ramirez, the Leo Baltazar Ramirez & Dolores Ramirez Living Trust, and Leo Baltazar Ramirez and Dolores Ramirez as Trustees, alleging violation of Health and Safety Code section 17975.

A tenant is entitled to relocation benefits from the owner if the tenant is displaced as a result of an order to vacate by a local enforcement agency as a result of a violation so extensive and of such a nature that the immediate health and safety of the residents is endangered. (Health & Saf. Code, § 17975.) “The local enforcement agency shall determine the eligibility of tenants for benefits pursuant to this article.” (Ibid.)

Defendants provide the deposition testimony of Emergency Management Unit Officer Robert Sgroi, who yellow-tagged the Subject Property. (Motion at p. 15.) He observed that the common wall between the units and a portion of the ceiling had burned and was open. (Stone Decl., Ex. J at p. 19.) According to Sgroi, the notice he posted indicated that both units were inhabitable and repairs must be made with permits and approvals. (Id. at pp. 21-22.) The two-day repair order states: “An inspection of the above-described premises by the Los Angeles Housing + Community Investment Department (HCIDLA) had revealed deficiencies which constitute a present, imminent, extreme, and immediate hazard or danger to life or limb, health and safety. Furthermore the deficiencies described below render the premises untenantable as defined in Section 1941.1 of the California Civil Code.” (Stone Decl., Ex. K.) The notice identifies the hazardous conditions as substantially lacking effective waterproofing and weather protection and substantially lacking plumbing or gas facilities maintained in good working order. (Ibid.) Defendants also contend that neither the City of Los Angeles nor an agency made a determination of eligibility for benefits. (Motion at p. 15; UMF 36.)

Defendants have met their initial burden of showing that the requirements of Health and Safety Code section 17975 are not met.

In opposition, Plaintiffs note that the two-day order to repair identifies violations of Civil Code section 1941.1 and states that the Subject Property is untenantable. (Opposition at pp. 13-14.) Plaintiffs argue they are eligible for relocation benefits for a not-at-fault eviction pursuant to LARSO. (Id. at p. 14.) However, it is undisputed that there was no order to vacate by a local enforcement agency and no determination of eligibility for benefits. (Health & Saf. Code, § 17975.)

The third cause of action is brought by Sonia Calderon, Alexia Lopez, and Genesis Lopez against Leonidas Ramirez, Dolores Ramirez, and Rafael Ramirez, alleging intentional infliction of emotional distress (“IIED”).

“‘[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ [Citation.] ‘Conduct, to be ‘outrageous’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’ [Citation.]” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.) “While the outrageousness of a defendant’s conduct normally presents an issue of fact to be determined by the trier of fact [citation], the court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.) When a plaintiff does not suffer physical injury, the conduct must involve “extreme and outrageous intentional invasions of one’s mental and emotional tranquility.” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498.)

Defendants argue that the alleged conduct was not extreme and outrageous. (Motion at pp. 9-10.) According to Defendants, “It is the hiring of Juan that Plaintiffs allege is the extreme and outrageous conduct exceeding all bounds of reasonable decency.” (Id. at p. 9.) That is not wholly correct. Plaintiffs allege the conduct includes hiring an unlicensed individual to weld a metal pipe, as part of a plan to force Sonia Calderon to move out due to damage to the bathroom that would not be fixed. (FAC ¶¶ 44-45.) Defendants did not alert Sonia Calderon about the fire and instead closed the door and left the unit. (Id. at ¶ 47.) Plaintiffs allege that failing to notify them, including Sonia Calderon’s paralyzed daughter, about the fire while they were present is extreme and outrageous behavior. (Id. at ¶ 48.) Defendants’ motion, focusing only on the hiring of Juan, does not meet their initial burden.

Defendants also argue that there is no evidence that the fire was intentionally set. (Motion at p. 10.) But the FAC alleges intentional conduct thereafter—namely, failing to notify the residents of the fire and walking or running out without warning others, particularly in the presence of oxygen tanks that could explode. (FAC ¶¶ 47-50.)

Finally, Defendants argue there is no evidence that Sonia Calderon, Alexia Lopez, and Genesis Lopez suffered severe emotional distress. (Motion at p. 10.) But Defendants do not “present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar, supra, 25 Cal.4th at pp. 855.) Defendants do not cite any evidence regarding Alexia Lopez and Genesis Lopez. For Sonia Calderon, Defendants cite only her deposition testimony, where she was asked about seeking medical treatment after the fire and she responded, “I didn’t need anything regarding any type of being injured by the fire, but I did inhale smoke, but I was not but I was unable to go to the doctor.” (UMF 29; Stone Decl., Ex. F at p. 73.) This does not prove that Sonia Calderon did not suffer severe emotional distress.

In sum, Defendants failed to meet their initial burden of showing that Plaintiffs cannot establish an element of this cause of action. Summary adjudication of the third cause of action is denied.

The fourth cause of action is brought by all Plaintiffs against Leonidas Ramirez, Dolores Ramirez, and Rafael Ramirez, alleging negligent infliction of emotional distress (“NIED”).

“[T]here is no independent tort of negligent infliction of emotional distress. [Citation.] The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element. [Citations.] That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship. [Citation.]” (Potter v. Firestone Tire &Rubber Co. (1993) 6 Cal.4th 965, 984-985.)

Defendants argue that Plaintiffs cannot establish any severe emotional distress. (Motion at p. 11.) As discussed with the IIED claim, Defendants do not provide any evidence regarding Alexia Lopez and Genesis Lopez. That Sonia Calderon did not seek medical care does not show that she cannot prove severe emotional distress. (See UMF 29.) For Renando Mixon, Defendants cite his deposition testimony regarding his medical treatment. (UMF 30; Stone Decl., Ex. G at pp. 39-43.) Defendants do not cite any evidence regarding Renando Mixon’s emotional distress or evidence that he does not possess and cannot obtain evidence of severe emotional distress. (See Aguilar, supra, 25 Cal.4th at p. 854.)

Defendants also note that Renando Mixon was not home at the time of the incident. (Motion at p. 11.) Defendants do not further brief this issue. (See Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 “[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat [an] issue as waived.”]; Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384 [“We need not consider an argument for which no authority is furnished.”].) Additionally, the FAC also alleges that Defendants used the subsequent untenable conditions as leverage, which caused emotional distress. (FAC ¶ 62.)

In sum, Defendants failed to meet their initial burden of showing that Plaintiffs cannot establish an element of this cause of action. Summary adjudication of the fourth cause of action is denied.

The fifth cause of action is brought by Sonia Calderon and Alexia Lopez against Leonidas Ramirez, Dolores Ramirez, and Rafael Ramirez, alleging violation of the Unruh Civil Rights Act.

The Unruh Civil Rights Act requires that all persons receive full and equal accommodations, advantages, facilities, privileges, or services in all business establishments, regardless of personal characteristics such as race, disability, or medical condition. (Civ. Code, § 51, subd. (b); see Civ. Code, § 52.)

Defendants argue that Plaintiffs have not produced any evidence supporting this cause of action. (Motion at pp. 15-16.) Defendants cite Sonia Calderon’s deposition testimony, in which she purportedly described Leonidas Ramirez stating that the family would likely need to vacate the property because of concerns with liability if Alexia fell. (Id. at p. 16; see UMF 12-13.) The cited page 67 is not included in Defendants’ exhibit. (See Stone Decl., Ex. F.) Defendants do not deny that they raised the possibility of eviction due to Alexia’s disability, further describing the statement: “Defendant Leonidas Ramirez’s comments regarding beginning the eviction process was based upon the concern of liability should Plaintiff Calderon’s daughter fall on the premises, i.e., concern for the safety of her daughter.” (Motion at p. 16.) Defendants then rely on the fact that they previously renewed the lease for more than ten years. (Ibid.; UMF 4.) This past practice alone does not preclude future wrongful conduct.

Defendants have not met their initial burden of providing evidence that they did not deny full and equal accommodations and privileges. Summary adjudication of the fifth cause of action is denied.

The sixth cause of action is brought by Sonia Calderon and Alexia Lopez against Leonidas Ramirez, Dolores Ramirez, and Rafael Ramirez, alleging violation of the Tom Bane Civil Rights Act.

The Bane Act allows an individual to sue for damages if a person “interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state . . .”¿¿(Civ. Code, § 52.1, subd. (b).)¿¿“‘The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threat[], intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.’¿¿[Citation.]”¿¿(King v. State of California¿(2015) 242 Cal.App.4th 265, 294.) “The statutory framework of section 52.1 indicates that the Legislature meant the statute to address interference with constitutional rights involving more egregious conduct than mere negligence,” and “[t]he act of interference with a constitutional right must itself be deliberate or spiteful.” (Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 958-959.)

Defendants argue they did not engage in any conduct prohibited by the Bane Act. (Motion at pp. 12-13.) The FAC alleges that Defendants attempted to evict Plaintiffs and subjected them to an unsafe repair in an attempt to make life intolerable at a public business. (FAC ¶ 80.) Defendants were willing to “flaunt the law by using an unlicensed and unexperienced individual to do dangerous work . . . [and] sought to deprive Plaintiff Calderon and her [family] of their rights.” (Id. at ¶ 81.) This does not rise to the level of a Bane Act violation.

To the extent that Plaintiffs base this cause of action on threats of eviction, that too does not establish a Bane Act violation. “Speech alone is not sufficient to support an action brought pursuant to subdivision (b) or (c), except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat.” (Civ. Code, § 52.1, subd. (k).)

It is undisputed that there were only two interactions before the fire. (UMF 10.) The first occurred in early 2015, when Leonidas Ramirez threatened eviction due to Sonia Calderon’s sister residing in the unit and there were too many people living there. (UMF 11; Response to UMF 11.) The second occurred about eight months before the fire, also threatening eviction. (UMF 12-13; Response to UMF 13.) These instances do not threaten violence against Plaintiffs.

In opposition, Plaintiffs identify an additional interaction after the fire. (Opposition at p. 10.) According to the certified translation of the video, Leonidas Ramirez states to Ronald Calderon that he is waiting for a worker to come look at the apartment, and “Also, I want you all to vacate. . . . I want you all to leave.” (Valdez-Ortega Decl. ¶ 2 & Ex. A; R. Calderon Decl. ¶ 3 & Ex. 1.) He also states, “I want you all to get out so I can fix it,” and he wants to fix everything, including removing lead paint. (Ibid.) Plaintiffs’ contention that Leonidas Ramirez “used threatening language to have Sonia and her family leave the unit” does not rise to the level of a Bane Act claim. (Opposition at p. 10.) He did not threaten violence and did not create a reasonable fear that violence would be committed against Plaintiffs or their property. (Civ. Code, § 52.1, subd. (k).)

The seventh cause of action is brought by all Plaintiffs against Leonidas Ramirez and Dolores Ramirez, alleging negligence per se based on violations of Health and Safety Code section 17975 and Civil Code section 1941.1.

A cause of action for negligence requires (1) a legal duty owed to the plaintiff to use due care, (2) breach of that duty, (3) causation, and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) “The doctrine of negligence per se is based on ‘the rule that a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm that the plaintiff suffered as a result of the violation.’” (Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194, 1226.)

Defendants argue there is no statutory basis to support this cause of action. (Motion at pp. 17-18.) However, Defendants’ own evidence shows that the Subject Property had two hazardous conditions and violations of Civil Code section 1941.1. (Stone Decl., Ex. K.) Defendants also did not meet their burden and there remain triable issues of action regarding other statutory causes of action.

The ninth cause of action is brought by Sonia Calderon and Renando Mixon against Leonidas Ramirez and Dolores Ramirez, alleging violation of Business and Professions Code section 17200 et. seq.

California’s Unfair Competition Law (“UCL”) includes any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue, or misleading advertising. (Bus. & Prof. Code, § 17200.) The UCL embraces “anything that can properly be called a business practice and that at the same time is forbidden by law.” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) “By proscribing any unlawful business practice, section 17200 borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.” (Ibid.; see Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969 [“Virtually any law can serve as the predicate for a section 17200 action.”].)

This cause of action is based on Defendants’ failure to pay relocation assistance. (FAC ¶¶ 110-113.) As discussed with the second cause of action, and Defendants have shown that they did not violate Health and Safety Code section 17975. Accordingly, Defendants have met their burden, and Plaintiffs have not shown a triable issue of fact regarding the predicate business practice for this UCL cause of action.

The motion for summary adjudication is GRANTED as to the second, sixth, and ninth causes of action, and it is denied for all other causes of action.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court