Judge: Timothy Patrick Dillon, Case: 19STCV38374, Date: 2022-09-15 Tentative Ruling
Case Number: 19STCV38374 Hearing Date: September 15, 2022 Dept: 73
SHAHNAZ AMIRTALESH v. ROCHELLE H. STERLING, et al.
Counsel for Plaintiffs/opposing parties: In Pro Per
Counsel
for Defendants/moving parties: David P. Lenhardt and Fred S. Peters (Pyka
Lenhardt Schnaider Dawkins)
Defendants’ motion for summary judgment (filed 06/16/2022)
Continue
per Plaintiff’s CCP § 473c(h) request.
Discussion
On October
23, 2019, Plaintiff Shahnaz Amirtalesh (“Plaintiff”) filed this action against
Defendants Rochelle H. Sterling (“Sterling”), Beverly Hills Properties, The
Sterling Family Trust, Susan Robman (“Robman”) and Does 1-50 (collectively,
“Defendants”), alleging claims arising out of a written lease agreement of an
apartment that Plaintiff leased from Defendants.
The operative
Second Amended Complaint, alleges the following causes of action:
C/A
1: Breach of Warranty of Habitability
C/A
2: Negligence
C/A
3: Nuisance
C/A
4: Violation of Civil Code § 1942.4
C/A
5: Financial Abuse of An Elder (demurrer sustained without leave)
C/A
6: Violation of The California Fair Employment and Housing Act
C/A
7: Violation of The California Unruh Civil Rights Act
C/A
8: Breach of Implied Covenant of Quiet Enjoyment
On June 16, 2022, Defendants Rochelle Sterling, as Trustee of The
Sterling Family Trust and DBA Beverly Hills Properties, and Susan Robman filed
the instant motion for summary judgment or in the alternative summary
adjudication of each cause of action. Defendants argue that:
·
Plaintiff agreed in her lease to assume
the risk of damage from moisture leading to mold in her apartment. She agreed
to hold BHP harmless for any injury or damage resulting from mold. She agreed
to be liable, and to hold BHP harmless for, damages to herself, or her property
from water leaks due to a stoppage in her shower drain, like the October 2018
incident. BHP had no duty to address alleged mold until they were given notice
it existed. They were notified of plaintiff’s claims on September 5, 2019 and all
repairs were made a reasonable time later. Thus BHP was in compliance with
Civil Code § 1941.7 and are not liable for any mold damages.
·
BHP is not liable for other tenants’ legal
and reasonable use of the pool or for their decision to not wear masks. BHP
complied with the law governing COVID-19 protocols and posted all appropriate
documents in the complex; they owed plaintiff no duty to force residents to
comply with those protocols.
·
Plaintiff’s claim that BHP delayed and
refused to grant her request for a reasonable accommodation has no support. In
fact, BHP agreed to grant plaintiff’s accommodation request within a reasonable
time, even though she had not forwarded any supporting medical documentation.
Plaintiff agreed to BHP’s proposal. Then, plaintiff failed to communicate with
BHP, preventing the installation of the new flooring, with the exception of a
single email that appeared to repudiate the agreement plaintiff had made, which
demanded BHP take responsibility for moving plaintiff’s furniture out of the
unit, which plaintiff had agreed to do. BHP responded and asked for
clarification, indicating they were ready to proceed with the floor
replacement, but received no reply. Any delay in her accommodation request was
plaintiff’s fault entirely, not defendants’. Therefore, any resulting damage to
her unit, setting aside the absence of evidence of such damage, is her
responsibility. Ultimately, plaintiff’s flooring was replaced in October 2019.
In opposition Plaintiff argues that:
·
Plaintiff did not assume the risk of the
damages and injuries from the mold. There is evidence that that the sewage
water in Plaintiff’s apartment was the result of a defective pipe in the
parking garage.
·
Defendant had a duty to repair mold issues
immediately after notice. Defendants’ initial plan was rejected when they
sought permits, and thus the cause and impact of the delay are questions of
fact.
·
Defendants breached their duties and
obligations with regard to COVID-19 protocols.
·
Plaintiff requests a continuance pursuant
to CCP §437c(h).
o
Plaintiff has hired two experts who can
offer opinions on the reasonableness of Defendants’ actions, whether those
actions met the standard of care in the industry, and who might have other
opinions to offer on causation, breaches and other elements of the various
causes of action. Because of her health issues, these recently hired experts
have not had sufficient time to review the documents and testimony in this case
and give opinions which are likely to impact the issues raised by Defendants.
In reply, Defendants point out that the elder abuse cause of action is
moot and attack Plaintiff’s evidence, as well as reiterate their arguments in
the moving papers.
I.
Legal Standard for Motion for Summary Judgment
A party
may move for summary judgment “if it is contended that the action has no merit
or that there is no defense to the action or proceeding.” (Cal. Civ. Proc. Code § 437c(a).) “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. In determining if the papers show that there
is no triable issue as to any material fact, the court shall consider all of
the evidence set forth in the papers, except the evidence to which objections
have been made and sustained by the court, and all inferences reasonably
deducible from the evidence, except 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.” (Id., § 437c, subd. (c).)
A defendant moving for summary judgment
must show “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); see also, Code Civ. Proc., § 437c, subd. (o).)
“The defendant may, but need not,
present evidence that conclusively negates an element of the plaintiff's cause
of action. The defendant may also
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. But… the defendant must indeed present evidence."
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855
[italics in original].) “In
other words, all that the defendant need do is to show that the plaintiff
cannot establish at least one element of the cause of action--for example, that
the plaintiff cannot prove element X.” (Id., at 853.) The court in Aguilar distilled
summary judgment to “a single proposition:
If a party moving for summary judgment in any action . . . would prevail
at trial without submission of any issue of material fact to a trier of fact
for determination, then he should prevail on summary judgment. In such a case . . . the ‘court should grant’
the motion ‘and “avoid a . . . trial’ rendered ‘useless’ by nonsuit or directed
verdict or similar device. (Id. at 855.)
As noted in Aguilar, “the party moving for summary judgment bears an initial
burden of production to make a prima facie showing of the nonexistence of any
triable issue of material fact; if he carries his burden of production, he
causes a shift, and the opposing party is then subjected to a burden of
production of his own to make a prima facie showing of the existence of a
triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at 850.) Thus, courts usually follow a three-step
analysis: “First, we identify the issues framed by the pleadings . . . . [¶]
Secondly, we determine whether the moving party’s showing has established facts
which negate the opponent’s claim and justify a judgment in movant’s favor. . .
. [¶] When a . . . motion prima facie justifies a judgment, the third and final
step is to determine whether the opposition demonstrates the existence of a
triable, material factual issue.” (Ojavan Investors, Inc. v. Cal. Coastal Comm.
(1997) 54 Cal.App.4th 373, 385 [citation and footnote omitted].)
The California Supreme Court has
recently confirmed that the purpose of the 1992 and 1993 amendments to the
summary judgment statute was “‘to liberalize the granting of [summary judgment]
motions.’” (Perry v. Bakewell Hawthorne,
LLC (2017) 2 Cal.5th 536, 542.) It
is no longer called a “disfavored” remedy.
“Summary judgment is now seen as a ‘particularly suitable means to test
the sufficiency’ of the plaintiff’s or defendant’s case.” (Ibid.)
Opposing parties must present
substantial evidence in order to avoid summary judgment. (Sangster
v. Paetkau (1998) 68 Cal.App.4th 151, 163.)
“In some instances…, ‘evidence may be so lacking in probative value that
it fails to raise any triable issue.’” (Whitmire v. Ingersoll-Rand Co. (2010)
184 Cal.App.4th 1078, 1083-1084.) “A
complete failure of proof concerning an essential element of the nonmoving
party's case necessarily renders all other facts immaterial.” (Hunter
v. Pacific Mechanical Corp (1995) 37 Cal.App.4th 1282, 1286, disapproved on
other grounds by Aguilar, supra, at
865; accord Saelzler v. Advanced Group
400 (2001) 25 Cal.4th 763, 780 [“‘If the plaintiff is unable to meet her
burden of proof regarding an essential element of her case, all other facts are
rendered immaterial.’”].)
Courts
“construe the moving party's
affidavits strictly, construe the opponent's affidavits liberally, and resolve
doubts about the propriety of granting the motion in favor of the party opposing it.’” (Unilab Corp.v. Angeles-IPA (2016) 244
Cal.App.4th 622, 636; internal citation omitted.) “The court focuses on issue
finding; it does not resolve issues of fact. The court seeks to find
contradictions in the evidence, or inferences reasonably deducible from the
evidence, which raise a triable issue of material fact.” (Johnson
v. United Cerebral Palsy, etc. (2009) 173 Cal.App.4th 740, 754; internal
citation omitted.) "[S]ummary judgment cannot
be granted when the facts are susceptible [of] more than one reasonable
inference...” (Rosas v. BASF Corp. (2015)
236 Cal.App.4th 1378, 1392.)
II.
Continuance
Code of Civil Procedure section 437c, subdivision (h), provides
that, “[i]f it appears from the affidavits submitted in opposition to a motion
for summary judgment or summary adjudication, or both, that facts essential to
justify opposition may exist but cannot, for reasons stated, be presented, the
court shall deny the motion, order a continuance to permit affidavits to be
obtained or discovery to be had, or make any other order as may be just.”
Plaintiff requests a continuance pursuant to Section 437c
subdivision (h), arguing that she has hired two experts who can offer opinions
on the reasonableness of Defendants’ actions, whether those actions met the
standard of care in the industry, and who might have other opinions to offer on
causation, breaches and other elements of the various causes of action. Because
of her health issues, these recently hired experts have not had sufficient time
to review the documents and testimony in this case and give opinions which are
likely to impact the issues raised by Defendants. Plaintiff has provided a declaration
in support of this request. (Amirtalesh Decl., ¶29.)
Accordingly, the motion is properly continued pursuant to
Plaintiff’s request.