Case Number: EC061256    Hearing Date: October 31, 2014    Dept: NCD

TENTATIVE RULING (10/31/14)
#6
EC 061256
YEDIGARYAN v. AVEDIAN

Motion by Defendants Vahe Avedian, Susana Avedian, and Ghevond V. Avedian for Summary Adjudication

TENTATIVE:

Motion for summary adjudication is DENIED.

There are triable issues of material fact with respect to whether the motivation for the service of the notice to vacate on January 30, 2012 was retaliatory in nature, in effect, in retaliation for the tenants having complained to the City concerning issues of tentatibility, which had resulted in the issuance of a Substandard Order and Notice of Fees being served on defendants on January 19, 2012. [See UMF Nos. 12, 31, Ex. C; Sevak Yedigaryan Decl., para. 4].

No damages are required to be established in order to obtain relief under Civil Code § 1942.5.

Defendants’ Request for Judicial Notice is GRANTED. The court has not considered the materials for any improper or prejudicial purpose.

Plaintiffs’ Objections to Evidence Submitted by defendants. Objection No. 4 is SUSTAINED. Remaining objections are OVERRULED.

Defendants’ Objections to Plaintiffs’ Evidence; Objections Nos. 7, 10, and 11 are SUSTAINED. Remaining objections are OVERRULED.

BACKGROUND:
MOVING PARTY: Defendants Vahe Avedian, Susana Avedian, and Ghevond V. Avedian
RESPONDING PARTY: Plaintiffs Sevak Yedigaryan, Lusine Torosyan, Amik Yedigaryan and Amazasp Yedigaryan

RELIEF REQUESTED:
Summary adjudication in favor of defendants of the fourth cause of action for retaliatory eviction.

Causes of Action:
1. Negligence
2. Negligence Per Se
3. Breach of Warranty of Habitability
4. Retaliatory Eviction
5. Breach of Contract

FACTUAL BACKGROUND:
Plaintiffs Sevak Yedigaryan, Lusine Torosyan, Amik Yedigaryan and Amazasp Yedigaryan bring this action against their former residential landlords, defendants Vahe Avedian, Susana Avedian and Ghevond Avedian, alleging that due to construction defendants conducted in violation of the applicable building and safety codes, the residence was subject to water intrusion, electrical and plumbing issues which the landlords refused to abate. Plaintiffs allege that they contacted the Los Angeles Department of Building and Safety, which conducted an inspection and issued a Substandard Order and Notice of Fees to defendants, and in retaliation for plaintiffs’ conduct, defendants served on plaintiffs a 30 day notice to pay rent or quit. The complaint alleged causes of action for negligence, negligence per se, breach of warranty of habitability, retaliatory eviction and breach of contract.

ANALYSIS:
Fourth Cause of Action—Retaliatory Eviction
Defendants seek to establish that plaintiffs will be unable to establish the elements of their fourth cause of action for retaliatory eviction. Civil Code § 1942.5.

Defendants basically argue that the notice to vacate was in good faith and not for any retaliatory purpose, as the notice was issued after an incident which occurred on January 24, 2012, when while attempting to inspect the property plaintiffs refused to let defendants in until the police intervened, and that later that afternoon plaintiff Sevak Yedigaryan telephoned defendant Vahe Avedian, yelling at him for having contacted the police and threatening to harm him. [UMF Nos. 1-30, and evidence cited].

This is arguably insufficient to shift the burden to plaintiffs to respond, as the motion does not establish that plaintiffs have no evidence which could establish retaliatory eviction, but only offers an alternative nonretaliatory reason for the attempted eviction. The moving papers concede that on January 19, 2012, they received a letter from the City of Los Angeles Department of Building and Safety, advising them to secure required permits and approvals. [UMF No. 12]. The Thirty Day Notice was served on January 30, 2012. [UMF No. 31, Ex. C]. It therefore appears that the notice was issued within the 180 day period prohibited under the statute. Civil Code § 1942.5(a).

The opposition submits the declaration of Sevak Yedigaryan in which he states that during his tenancy he brought to the landlord’s attention issues with the house, including “electrical and plumbing problems, weather and weatherproofing problems, and other habitability problems within the house,” and that “After years of inaction, I requested that the Los Angeles Department of Building and Safety visit my property and inspect some of these issues.” [Yedigaryan Decl., para. 4]. The substandard order was then evidently issued based on the complaint by plaintiff, the eviction notice was served fewer than 180 days after the order was issued, and the issue of whether the eviction was in retaliation for contacting the City or because of defendants’ purported fears for the safety of his family after the disagreement concerning entering the premises, is a matter to be determined by weighing the credibility of each story, and the inferences to be drawn from the timing of the eviction notice.
This is, in effect, a motion seeking to have the court determine that defendants’ motives were not retaliatory because they say so. CCP § 437c(e) provides that “summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual…where a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.”

The motion for summary adjudication is denied, as the evidence submitted by the moving parties supports competing inferences and the opposition submits evidence which would support a finding of retaliatory motive.

Defendants also argue that plaintiffs will be unable to establish damages. This is based on responses to form interrogatories in which plaintiffs indicated that they are not claiming physical or emotional injuries, property damage, loss of income or earning capacity or other damages. [See UMF No. 46, Ex. C, Responses to Form Interrogatories Nos. 6.0- 9.0]. However, the statute does not require that damages be established for a tenant to recover penalties and possibly punitive damages in connection with a violation by the landlord. The motion is accordingly denied.