Case Number: BC494035    Hearing Date: July 22, 2014    Dept: 34

BACKGROUND: Plaintiffs commenced this action on 10/18/12, against defendants Carlos Vera, Maria Vera, and Does for: (1) breach of implied warranty of habitability; (2) negligent maintenance of premises; (3) maintenance of nuisance; (4) intentional infliction of emotional distress; (5) conversion; (6) damages for violation of statutory warranties; and (7) injunction to abate statutory warranties.

In January 2004, plaintiff Toxtle and defendants entered into a written agreement wherein defendants rented the subject property to Toxtle at a rate of $575.00 per month, which was increased over the next two years to $750.00 per month in May 2006. (Compl., ¶ 7.) The property had several areas where it needed repair, and which remain unfixed. (Id., ¶ 8.) Plaintiff has refused to pay rent since January 2011 because the premises were uninhabitable. (Id., ¶ 9.) There is no hot water and there exists an infestation of rodents and insects. (Id., ¶ 15.) Plaintiff has discovered that he was providing electricity to another dwelling unit and that defendants were collecting money from the other residents as reimbursement for money already paid by plaintiff. (Id., ¶ 19.) Defendants have filed several unlawful detainer actions against plaintiff, none of which were concluded in defendants’ favor. (Id., ¶¶ 10-13.)

Default was entered against defendants in May and July 2013.

On 8/20/13, defendant Carlos Vera filed a motion to set aside the default. On 9/20/13, the Court took this motion off calendar and ordered defendant to re-file. The Court also denied plaintiffs’ request for entry of default judgment.

On 12/6/13, the Court heard defendants’ renewed motion to set aside the defaults. The Court denied the motion and set an OSC re entry of default judgment for 2/18/14.

The OSC re entry of default judgment was called on 2/18/14 and plaintiffs were not ready to proceed on that date. The Court continued the matter to 4/17/14 and admonished “that if judgment has not been entered, this case may be dismissed on that date.” (Minute Order, 2/18/14.)

At the continued OSC on 4/17/14, the Court noted that plaintiffs had failed to obtain entry of default judgment as ordered. Plaintiffs misunderstood the Court’s order and believed that the request was to be submitted by 4/17/14. The Court reiterated that its order was that the case would be dismissed if default judgment had not been granted by that date. The Court denied plaintiffs’ oral motion for another continuance and ordered the case dismissed.

On 5/23/14, the Court granted plaintiffs’ motion for relief from dismissal, stating, that the “Court does not believe that the plaintiffs should lose their case because of the negligence or incompetence of their counsel.”

ANALYSIS:

Plaintiff Ruben Toxtle requests $1,057,490.20 and plaintiff Antonia Sanchez requests $1,038.820.00 in damages in this warranty of habitability case. Unfortunately for plaintiffs, filing a lawsuit – even a lawsuit in which the defendants default – is not like entering a megabucks lottery in which one hopes to win a huge jackpot. There must be a reasonable relationship between the liability of defendants, the damages incurred by the plaintiffs and the amount of the judgment.

Plaintiff Toxtle declares that he is entitled to $2,160.00 for electricity bills that plaintiff paid for another tenant but which were nonetheless collected by defendants. (Toxtle Decl., ¶ 6.) Toxtle declares that he is owed $20,250.00 in rental reimbursements. (Toxtle Decl., ¶ 7.) Toxtle declares that he is owed $1,504.13 for repairs that he had to do himself. (Toxtle Decl., ¶ 9, Exh. 6.) Toxtle declares that he is entitled to $5,000.00 in statutory damages under Civil Code section 1942.4(b). (Toxtle Decl., ¶ 10.)

Toxtle declares that, pursuant to Civil Code §789.3 he is entitled to receive a penalty of $100 per day for the 1,215 days during which he was deprived of utilities for a total of $121,500. (See Toxtle Decl., ¶ 8.) Apparently understanding the excessiveness of this request, Toxtle states that “If the court considers this excessive, I will be willing to half the amount to $60,750.00.” (Id.)

Toxtle requests $72,000.00 for pain and suffering plus $50,000.00 for emotional distress. (Toxtle Decl., ¶ 13.) Toxtle also seeks $120,000.00 for future medical expenses, $35,400.00 for loss of earnings, and $210,000.00 for loss of future earning capacity. (Ibid.)
Plaintiff Antonia Sanchez has not shown that she is entitled to any damages separate from that of her husband. Sanchez is not mentioned in the complaint. Because the complaint contains no factual allegations as to Sanchez, the defendants have not been apprised of the basis of any claim by her. In her declaration, Sanchez simply “adopt[s]” her husband, Plaintiff Toxtle’s declaration. (Sanchez Declaration., ¶ 5.) Interestingly, Sanchez does not clearly state that she resided at the premises.

Therefore, the court does not believe that there should be a separate award to plaintiff Sanchez.

As to the CC § 789.3 penalties, Toxtle states that he is entitled to $100 per day for the 1,215 days he was deprived of utilities. However, CC §789.3 states that the plaintiff is entitled to “an amount, not to exceed $100 for each day . . . the landlord remains in violation of this section.” As Toxtle apparently realizes, the court does find this request “excessive.” (See Toxtle Declaration, ¶ 8.) The Court also notes that, pursuant to the complaint, the gas was turned off in June 2012, which is approximately 750 days ago, not 1,215 days ago.

Toxtle seeks $253,125.65 in interest. Plaintiffs fail to provide any interest calculation to support this amount. The only interest mentioned is for the rental reimbursement. (See Toxtle Decl., ¶ 7.) First, plaintiffs provide no support for the requested rate of 10% – as counsel should know, the default rate in a non-contract action is 7%. Second, plaintiffs fail to include sufficient information (i.e., the time period for which interest is sought) to calculate the interest. It is not the Court’s duty to make the interest calculations when counsel has failed to do so.

Regarding Toxtle’s requests for pain and suffering, emotional distress, future medical expenses, loss of earnings and loss of earning capacity: the only evidence presented as to these damages is Toxtle’s conclusory declaration. It is not clear to the Court how Toxtile calculates $72,000 for pain and suffering and $50,000 for emotional distress – or how these two categories differ. There is no evidence as to any costs associated with distress or physical injuries. The evidence does not show that defendants’ conduct affected Toxtle’s ability to earn, and there is no evidence as to Toxtle’s work or past or expected earnings. It seems that Toxtle arbitrarily estimated these amounts.

Lastly, plaintiffs request $20,435.00 in attorneys fees. Pursuant to Local Rule 3.214, plaintiffs are entitled to $5,748.28 in attorneys fees.

The Court will grant judgment to plaintiffs, jointly and severally, as indicated:

Item Requested by Plaintiffs Granted by Court
Electricity Bills $2,160.00 $2,160.00
Rental Reimbursements $20,250.00 $20,250.00
Reimbursements for repairs $1,504.13 $1,504.13
CC § 1942.4(b) statutory damages $5,000.00 $5,000.00
CC § 789.3 statutory damages $121,500.00 $50,000.00
Pain and suffering $72,000.00 $25,000.00
Emotional Distress $50,000.00
Future Medical Expenses $120,000.00 $0.00
Loss of Earnings $35,400.00 $0.00
Loss of Future Earning Capacity $210,000.00 $0.00
Punitive Damages $150,000.00 $20,000.00
Interest $253,125.65 $0.00
Attorneys Fees $20,435.00 $5,748.28
TOTAL $1,061,374.78 $129,662.41

Plaintiffs to prepare the Order.