2012-00122288-CU-OR
Maria Johnston vs. John Iander
Nature of Proceeding:
Filed By:
Motion for Summary Adjudication (Mark III Management Company)
Dobrin, Michael K.
Defendant Mark III Management Company’s Motion for Summary Adjudication of
Issues is GRANTED in part and DENIED in part. The Joinder of Defendants John and
Victoria Iander is GRANTED in part and DENIED in part.
The Court rules on Defendant’s evidentiary objections as follows: Johnston Dec.,
Objection nos. 1 and 4, Prokop Dec., objections no. 1 and Haas Dec., no. 1 are
SUSTAINED, the remainder are OVERRULED.
The notice of motion does not provide notice of the Court’s tentative ruling system as
required by with C.R.C., Rule 3.1308 and Local Rule 1.06(D). Local Rules for the
Sacramento Superior Court are available on the Court’s website at
ordered to notify opposing party immediately of the tentative ruling system and to be
available at the hearing, in person or by telephone, in the event opposing party
appears without following the procedures set forth in Local Rule 1.06(B).
Plaintiffs’ Complaint sets forth seven causes of action: the 1st for negligence; the 2nd for
breach of contract; the 3rd for intentional infliction of emotional distress; the 4th for fraud
and deceit; the 5th for breach of the implied warranty of habitability (common
law/statutory); the 6th for maintenance of a private nuisance; and the 7th for
constructive/wrongful eviction. All causes of action are alleged against the moving
Defendant Mark III (“Agent”).
Plaintiff was a tenant of the subject premises located at 317 U Street, Apt. 5,
Sacramento from June 15, 2010 to August 16, 2010. Agent Mark III is the property
management company hired by the Owners, John and Victoria lander.
During plaintiff’s tenancy, the downstairs bathroom began showing signs of a water
leak, resulting in mold growth.
Defendant’s contractor, Hass inspected the premises on July 23, 2010 and
recommended removal of the bathroom wall to locate the leak and repair it. Plaintiff
denied Agent’s contractors access to repair the leak, despite written requests on five
subsequent occasions.
Summary Adjudication of the 1st, 2nd, 5th, 6th, 7th and 8th Causes of Action is DENIED.
The Defendant Agent asserts that plaintiff’s violation of Civil Code section 1954 and
breach of the subject rental/lease agreement negates all defendant Mark III’s duties to repair and remediate the subject water leak and resulting mold or liability for any
resulting damages.
Civil Code, sec. 1954 states that a landlord, with reasonable notice given to the tenant,
may enter a dwelling unit to make necessary repairs.
The rental agreement attached to plaintiff’s complaint also provides: “ENTRY AND
INSPECTION: Landlord or Landlord’s Agent has the right to enter the Premises to
make necessary repairs, alterations, to show to prospective Landlords, and to inspect
the premises with 24 hour notice.” (Complaint, Exh. A, para. 23.)
Plaintiff failed to comply with this contractual provision.
Here, plaintiff admits that she received all six of the separate written notices sent by
the Agent to plaintiff requesting access to make the required repairs. Each time,
plaintiff denied the Agent’s contractor access to the bathroom.
Plaintiff proffered two reasons for her refusal to allow the contractor access: (1) Hass
is not “state certified” in mold remediation and (2) plaintiff did not trust the contractor
with her personal belongings in the unit.
In support of this motion, defendant asserts (1) there is no state certification for mold
remediation and (2) the contractor is licensed and bonded, so plaintiff would have
recourse for any missing or damaged property.
Health & Safety Code § 26131 provides: (“a) Remediation guidelines for mold
developed by the department shall do all of the following: . . . (7) Not require a
landlord, owner, seller, or transferor, to be specially trained or certified or utilize the
services of a specially qualified professional to conduct the mold remediation.”
Plaintiff does not dispute the landlord’s right to enter, but asserts that defendant had a
duty to clean the mold under safe conditions. Plaintiff asserts that the use of janitorial
services to remediate toxic mold after she had obtained a professional report
demonstrating its existence, was not reasonable or safe.
Defendant also moves for summary adjudication on the grounds set forth in its
Affirmative defenses.
Affirmative Defense No. 7, that plaintiff violated Civil Code, sec. section 1954, is set
forth above.
Affirmative Defense No. 12 that plaintiff violated the Rental/ Lease Agreement, also
described above.
Affirmative Defense No. 10 that defendant did not fail to perform any acts that were
required of it (by reason of plaintiff’s non-cooperation) and, therefore, owed plaintiff no
duty to repair the water leak and resulting mold.
Affirmative Defense No. 16 – Civil Code section 1941 requires a lessor to repair
dilapidations in a leased building.
Civil Code, sec. 1941.2 states that no duty arises under section 1941 if a tenant is in substantial violation of the tenant’s affirmative obligation to keep the premises clean
and sanitary or to keep plumbing fixtures clean and sanitary, “provided the tenant’s
violation contributes substantially to the existence of the dilapidation or interferes
substantially with the landlord’s obligation under section 1941 to effect necessary
repairs.”
Here, defendant contends that plaintiff’s refusal to allow the defendant access for 25
days (until she moved out) substantially interfered with the landlord’s obligation to
effect necessary repairs. However, this refusal is not one of the specified statutory
grounds in Civil Code 1941.2.
In opposition, plaintiff contends that the evidence reflects that defendant’s conduct was
unreasonable and defendant has failed to show that plaintiff “interfered substantially”
with the landlord’s obligations.
Affirmative Defense No. 14 – the water leak problem was clearly a latent problem
incapable of detection by reasonable inspection – plaintiff didn’t even notice it until
almost a month into her tenancy.
Defendant asserts it did not have a duty to accomplish what it couldn’t reasonably
have been expected to know about or they were prevented by plaintiff from fixing.
Any claims for damages, any such claim in any way connected to the leak in the
downstairs bathroom wall or any mold resulting therefrom should be denied to plaintiff
as a result of her lease and Civil Code violations.
The plaintiff purports to dispute material facts 3, 4, 10, 12 16 and 28. The objections to
the evidence in support of MF 3 and 4 have been sustained, as contradicted by
plaintiff’s deposition testimony and lacking in foundation. MF 10 is undisputed, as
there is no meaningful distinction between Haas and his employee. MF 12 is
essentially undisputed, as plaintiff refused to allow the defendant to remediate the
mold problem.
Moving party has addressed only the mold issue as to the 1st, 2nd, 5th, 6th, 7th and 8th
causes of action and affirmative defenses 7, 12, 13, 14 and 16. In opposition plaintiff
points to allegations regarding minor issues in the subject unit in addition to mold – –
fleas, dirty carpet, torn screen, etc. Moving party’s reply concedes that it did not
address these allegations in this motion because “the dollar value is low, at
best.” (Reply, 6:21-28.) However as the allegations are included in the complaint, the
Court cannot separately adjudicate the damages from causes other than mold, which
are not addressed by moving party defendant, the defendant has failed to meet its
initial burden of proof and therefore the motion must be denied.
Although C.C.P., sec. 437c(s), as amended 2011 permits adjudication of damages,
other than punitive damages, the statutory procedure requiring a stipulation and prior
court order has not been followed.
The motion must therefore be denied, as it fails to completely dispose of a cause of
action, an affirmative defense, a claim for damages, or an issue of duty. Code Civ.
Proc. § 437c (f) (1).
Summary adjudication of the 4th Cause of Action (Fraud and Deceit) is DENIED.Defendant moves for summary adjudication of this cause of action on the grounds that
plaintiff’s complaint alleges that defendants concealed the water leak at the time she
rented the apartment, but at her deposition, she admitted that she had no evidence
that defendants knew about or initially concealed the water leak problem. (MF 26)
In opposition, plaintiff points to the allegations of her complaint that between May 24,
2010, and June 15, 2010, neither owners nor agent disclosed to plaintiffs the fact of
water and moisture intrusion, construction defects, negligent repair, the presence and
existence of a flea infestation, and/or water damage existed at and within the Subject
Property. Both owner and agent had knowledge of, or access to these material facts,
knew that such facts were not known to or reasonably discoverable plaintiffs, and
intentionally withheld this information from plaintiffs. (Compl., para. 52)
There is no evidence that defendants knew of the existence of mold in the apartment
prior to renting it.
However, Plaintiff alleges fraud as to other defects in the premises, in addition to mold,
which are not addressed by moving party defendant, therefore defendant has failed to
meet its initial burden of proof and the motion must be denied.
Summary adjudication of the 3rd Cause of Action (Intentional Infliction of Emotional
Distress) is GRANTED.
Plaintiff’s complaint alleges that the conduct and attitude expressed by Agent was
outrageous, intentional, malicious, and conveyed to plaintiff Johnston with the
objective to intimidate, cause her humiliation, mental anguish, and emotional distress.
(Compl., para. 48, MF 27.)
However, the evidence provided to dispute MF 27 contradicts plaintiff’s deposition
testimony where she was asked to describe her emotional reaction to the Agent’s
words and conduct. Her deposition testimony was that she was angry at being
characterized as a “problem tenant” and served with a three day notice to quit. No
other emotional distress was identified. Plaintiff may not submit testimony to contradict
her deposition.
Summary adjudication of Punitive Damages is DENIED.
Punitive damages may be awarded “where it is proven by clear and convincing
evidence that the defendant has been guilty of oppression, fraud, or malice” for the
“sake of example and by way of punishing the defendant.” Civ. Code § 3294.
As summary adjudication of most causes of action has been denied here [e.g.
fraud/deceit], the Court cannot grant this motion. Further, the Court does not find that
the motion carries the initial burden. The Court first identifies the issues framed by the
pleadings. The pleadings define the scope of the issues on a motion for summary
judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal. App.
3d 367, 381-382). The Court is required to determine whether the moving party has
met its burden. A defendant moving for summary judgment bears the burden of
persuasion that one or more elements of the plaintiffs cause of action cannot be
established, or that there is a complete defense to the cause of action. (Aguilar v.
Atlantic Richfield Co. (2001) 25 C4th 826, 850,quoting CCP §437c(p)(2)). When the evidence the defendant presents does not support a summary judgment or
adjudication in the defendant’s favor, a Court must deny the motion regardless of the
opposing evidence, if any, that the plaintiff has submitted. Hawkins v Wilton (2006) 144
Cal. App. 4th 936, 940. Doubts as to the propriety of summary judgment or summary
adjudication should be resolved against granting the motion. (Huynh v. Ingersoll-Rand
(1993) 16 Cal. App. 4th 825, 830.
The prevailing party is directed to prepare a formal order complying with C.C.P. §437c
(g) and C.R.C. Rule 3.1312.
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