17-CIV-01353 NICHOLAS NORTHROP, ET AL. VS. LATU PARKVIEW PROPERTY MANAGEMENT, INC., ET AL.

NICHOLAS NORTHROP PARKVIEW PROPERTY MANAGEMENT
DWANA S. BAIN MARK C. CARLSON

MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES ON FIRST AMENDED COMPLAINT BY PARKVIEW PROPERTY MANAGEMENT TENTATIVE RULING:

Defendants Latu Parkview Property Management, Inc., Joan Latu, and Steven Guy Coulston’s motion for summary judgment is DENIED.

Defendants’ motion for summary adjudication is GRANTED, in part, and DENIED, in part.

Collateral Estoppel

As indicated in Moriarty v. Laramar Mgmt. Corp., 224 Cal. App. 4th 125, 141 (2014) and other authorities, the preclusive effect of a judgment in a UD action is limited. This is because the only issues typically litigated in a UD action are the plaintiff’s right to possession, and the defendant’s defenses to the plaintiff’s claim of possession.

In the prior UD action, the jury determined that Defendant Parkview was entitled to possession and that it did not breach the implied warranty of habitability. [10/30/17 Judgment and Order] As a result, the adjudication of the unlawful detainer action has preclusive effect in this case with respect to Plaintiff Bain’s claims for (1) breach of the warranty of habitability, and (2) negligent maintenance, which is based on the same allegations of Defendants’ failure to provide tenantable premises. Plaintiff, however, does not point to any other findings in the UD action which would resolve the issues presented by Plaintiff’s remaining causes of action.

For the foregoing reasons, Defendants’ motion for summary adjudication is GRANTED with respect to Plaintiff’s 2nd COA for breach of the implied warranty of habitability and Plaintiff’s 3rd COA for negligent maintenance.

Because collateral estoppel operates to preclude re-litigation only of the causes of action for breach of the warranty of habitability and negligent maintenance, Defendants are not entitled to summary judgment on the basis of collateral estoppel.

Plaintiff’s Ability to Establish Elements of Causes of Action

In order to prevail on its alternative motion for summary adjudication, Defendants must demonstrate that one or more elements of Plaintiff’s causes of action cannot be established. Defendants can satisfy their burden by presenting affirmative evidence negating an element of Plaintiff’s claims, or by presenting evidence that “plaintiff does not possess, and cannot reasonably obtain, needed evidence.” Aguilar v. Atlantic Richfield Co., 25 Cal.4th at 854; Guz v. Bechtel Nat’l, Inc. (2000) 24 C4th 317, 334.

Defendants have largely failed to meet their burden. As indicated by the discussion below, Defendants essentially treat this motion for summary adjudication as a motion for judgment on the pleadings, as Defendants have repeatedly failed to either produce evidence or draw the court’s attention to evidence in the record to support its motion. Even if the court treats the motion as a motion for judgment on the pleadings, however, Defendants have failed to present argument or authority demonstrating that Plaintiff’s FAC does not allege facts sufficient to support the asserted causes of action.

1st COA – Breach of Contract

With respect to Plaintiff’s 1st COA for breach of contract, Defendants claim that “Bain Plaintiff will be unable to establish the second element of the First cause of action for Breach of Contract, as she is estopped from re-litigating the finding in the UD Action, that he was required to pay rent and failed to do so.” The fact that Plaintiff failed to pay rent, however, does not conclusively determine the issues of performance or breach of the rental agreement. Plaintiff’s complaint alleges breach due to failure to provide parking permits and access to laundry facilities, among other allegations. Defendants point to no evidence indicating that this issue was litigated or decided in the UD action, or that Plaintiff had an opportunity to show that her performance was excused.

As a result, Defendants’ motion for summary adjudication is DENIED with respect to Plaintiff’s cause of action for breach of contract.

5th & 6th COA – Violation of Fair Debt Collection Practices Act and Rosenthal Act

Defendants combine their arguments with respect to these causes of action. According to Defendants, “the simple act of collecting rent on behalf of an owner of real property in exchange for living there for a finite period of time, and the institution of the UD Action on behalf of the owner of the Subject Unit When the occupants fail to pay the rent, is not the act of debt collection under either statute relied upon by the Northrop and Bain Plaintiffs.” [MPA, p.9] Defendants contend that the collection of rent does not qualify as a consumer credit transaction. Defendants, however, have presented no pertinent authority in support of this claim. Defendants rely on Fonteno v. Wells Fargo Bank, N.A. (2014) 228 Ca1.App.4th 1358, 1375. In that case, however, the court merely reaffirmed the “conclusion in Pfeifer [v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1261-64] that a person engaging only in activities leading towards a foreclosure sale as required by California law is not a ‘debt collector’ under the FDCPA.” Fonteno, 228 Cal. App. 4th at 1375. Defendants’ analogy to the present case is unpersuasive.

Further, the court previously rejected a similar argument presented in Defendants’ motion to strike. The court determined that

Plaintiff has adequately alleged that Defendants qualify as a “debt collector” attempting to collect on a “debt” under these statutes. 15 U.S.C. 1692a(6) defines a “debt collector” as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 1692a(5) defines “debt” as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” Arguably, as a property manager, Defendants routinely collect or attempt to collect debts due to the owner/landlord in that they collect rent payments and seek enforcement against tenants when the rent payments are late. Certainly it is contemplated that a property manager can be a defendant in a case where a violation of the FDCPA is alleged (see, e.g. Dey v. Continental Cent. Credit (2008) 170 Cal.App.4th 721 – property management company and collection agency found not to have violated certain provisions of the FDCPA).

[10/25/17 Order on Defendants’ Motion to Strike] For the foregoing reasons, Defendants have failed to carry their burden with respect to these causes of action.

Defendants’ motion for summary adjudication is DENIED with respect to Plaintiff’s causes of action for violations of the Fair Debt Collection Practices Act and the Rosenthal Act.

7th & 8th COA – IIED and NIED

Defendants combine their arguments relating to these causes of action also. With respect to Plaintiff’s IIED claim, Defendants contend that “There are no allegations of threats of any kind, or any other conduct which rises to the level of ‘so extreme as to exceed all bounds of that usually tolerated in civilized community.’” [MPA, p.11] Defendants, however, cite to no pertinent legal authority. Further, Defendants do not point to affirmative evidence indicating that Plaintiff cannot reasonably obtain the needed evidence to establish this claim. As a result, Defendants have failed to carry their burden with respect to Plaintiff’s IIED claim.

With respect to Plaintiff’s NIED claim, Defendants cite Gu v. BMW of North America, LLC (2005) 132 Cal.App.4th 195, 204, for the proposition that “there is no independent tort of negligent infliction of emotional distress,” and that, instead, “the tort is negligence, a cause of action in which duty to the plaintiff is an essential element.” According to Defendants, “There are no facts to support that Moving Parties assumed any duty to Bain Plaintiff in which her emotional condition was an object.” [MPA, p.11]

However, Defendants have presented no authority indicating that a cause of action for NIED cannot be asserted, or treated as a cause of action for negligence, when a duty is alleged. As noted in Potter v. Firestone Tire & Rubber Co. (1993) 6 C4th 965, 985, 25 CR2d 550, 562-563, “recovery is available . . . if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.” Plaintiff has alleged that Defendants, as his property managers, “owed a duty to protect Plaintiff from unlawful violations of [his] privacy, unlawful entry into [his] home, and unlawful and unnecessary fear.” [FAC, ¶ 68]

Defendants have presented no authority discussing claims of NIED in the context of landlord-tenant relationships or otherwise. Because Defendants have not provided any cogent argument or pertinent authority, they have failed to carry their burden of persuasion with respect to Plaintiff’s cause of action for NIED.

As a result, Defendants’ motion for summary adjudication is DENIED as to Plaintiff’s causes of action for IIED and NIED.

9th COA – Constructive Eviction

According to Defendant, “The constructive eviction claimed by Bain Plaintiff in the FAC [is] due to the alleged habitability violations set forth in each of the causes of action.” [MPA, p.11] However, Plaintiff’s allegations are not limited to a failure to provide habitable premises, as claimed by Defendants. The FAC alleges that “As a proximate result of Defendants’ conduct, as alleged in this complaint, Plaintiff suffered mental anguish and pain, and physical illness, all to his general damage in an amount to be proven at trial.” [FAC, ¶ 78] Defendants do not address constructive eviction on any other potential grounds asserted in the complaint, including repeated unlawful entry. Accordingly, Defendants have failed to carry their burden with respect to this cause of action.

Defendants’ motion for summary adjudication is DENIED as to Plaintiff’s cause of action for constructive eviction.

10th COA – Trespass

With respect to this cause of action, Defendants claim as follows:

The undisputed facts are that Moving Parties were compliant with written notification and always provided 24 or more hours in advance of entry to enter the Subject Unit. SSUF No. 15. It was not until November 2016, after Northrop and Bain Plaintiffs intentionally cut off all communications with Moving Parties and stopped paying rent when Moving Parties’ employee, Andrea “attempted to gain entry by putting her key in the lock. SSUF No. 15.

[MPA, p.12] As noted above, Defendants’ SSUF No. 15 cites to Plaintiff’s complaint in its entirety. Accordingly, Defendants have provided no evidence negating Plaintiff’s claim or indicating that Plaintiff cannot reasonably obtain the needed evidence to establish this claim.

Further, Defendants have not provided a citation to any part of the record to support their claim that “It is undisputed that Moving Parties never actually entered onto the Subject Unit.” [MPA, p.12] The court notes that Defendants’ SSUF No.27 – stating that the moving parties never set foot into the subject unit – cites to Andrea Navarette’s testimony that, on one occasion, she opened Plaintiff’s door “about 8 inches” but did not step inside the unit. Defendants’ evidence that Ms. Navarette did not step foot inside the dwelling on one occasion does not satisfy their burden of proof with respect to this claim. Further, Defendants have provided no legal authority or discussion on the question of what constitutes an “entry” sufficient to establish a trespass. As a result, Defendants have also failed to meet their burden of persuasion.

For the foregoing reasons, Defendants’ motion for summary adjudication is DENIED with respect to Plaintiff’s cause of action for trespass.

11th COA – Violation of EPA Municipal Code § 14.02.100

Defendants present no cogent argument with respect to this cause of action. Defendants do not quote the statute, cite to any pertinent authority, or cite to any evidence in the record. Defendants rely on collateral estoppel and assert, again, that the doctrine applies to “preclude Bain Plaintiff from re-litigating the habitability issues in this lawsuit.” [MPA, p.12] Defendants summarily assert that Plaintiff cannot establish a violation of the rent ordinance under any of the other eight categories of conduct prohibited by the ordinance. Once again, however, Defendants’ failure to draw the court’s attention to any evidence is fatal to its motion for summary adjudication.

Consequently, Defendants’ motion for summary adjudication of Plaintiff’s cause of action for violation of EPA Municipal Code § 14.02.100 is DENIED.

Punitive Damages

Finally, Defendants contend that the undisputed evidence does not support Plaintiff’s prayer for punitive damages. Plaintiff seeks punitive damages in connection with the causes of action for violation of Civ. Code § 1940.2 (4th COA), IIED (7th COA), constructive eviction (9th COA), and violation of the EPA Municipal Code 14.02.100, et seq. (11th COA).

Defendants do not present specific arguments with respect to each of these causes of action. The entirety of Defendants’ argument on this issue provides as follows:

The undisputed evidence does not support that Moving Parties’ conduct was willful in the sense of intentional, and accompanied by aggravating circumstances amounting to malice, which implies an act conceived in the spirit of mischief or criminal indifference towards the obligations owed to others. There is no evidence in support of willful or intentional conduct by Moving Parties causing damages to Bain Plaintiff.

[MPA, p.14] Defendants have failed to meet their burden of showing they are entitled to judgment on the question of punitive damages. As they have failed to do throughout their motion, Defendants do not cite to any evidence. Further, Defendants do not discuss any analogous cases. As a result, Defendants’ claim that punitive damages are unwarranted is unpersuasive.

For the foregoing reasons, Defendants’ motion for summary adjudication of Plaintiff’s claim for punitive damages is DENIED.

Supplemental Request for Judicial Notice

Finally, Defendants contend, in an untimely filed reply brief, that because the court recently granted Defendants’ motion to deem responses to RFAs admitted, Plaintiffs will be unable to establish the elements of their claims. Defendants’ request that the court consider the admissions, however, is procedurally defective. First, CCP § 437c(2) requires that the “Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing.” Defendants did not serve their request for judicial notice on Plaintiffs at least 75 days before the hearing, and therefore did not provide Plaintiffs an opportunity to respond to the request. Indeed, because the motion to deem RFAs admitted was filed after the motion for summary judgment, Defendants could not have complied with the rule absent a request for continuation of the hearing on this motion. Second, Defendants’ reply was not timely filed. For the foregoing reasons, the court declines Defendants’ request to consider matters deemed admitted for purposes of this summary judgment motion.

Defendants’ request for judicial notice, filed with the moving papers on June 3, 2019, is GRANTED.

Defendants’ supplemental request for judicial notice, filed on August 14, 2019, is DENIED, for the reasons set forth above.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendants shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.