Case Number: BC638312 Hearing Date: January 10, 2019 Dept: SEC

BRIONES v. CHAVEZ

CASE NO.: BC638312

HEARING: 01/10/19

JUDGE: LORI ANN FOURNIER

#11

TENTATIVE ORDER

Defendants EDMUND CHAVEZ and LAURA CHAVEZ’s motion for summary judgment and/or adjudication is DENIED in part, and GRANTED in part. CCP §437c.

Opposing Party to give notice.

Defendants’ request for judicial notice is GRANTED as to the existence of the documents. Cal. Ev. Code §452.

This action for constructive eviction was filed by Plaintiff FRANCES BRIONES on October 24, 2018. The relevant facts, as alleged, are as follows: Defendants are the owners/property managers of a multiple-unit dwelling located at 7314 Whittier Avenue, Whittier, California 90602. (Complaint ¶¶7-8.) “On or about March 29, 2015, Plaintiff entered into a written lease agreement with Defendants wherein Plaintiff agreed to pay Defendants $725.00 per month in rent for a fixed term from April 1, 2015, through March 31, 2016, with a month-to-month tenancy thereafter. Thereafter, Defendants agreed to lease Plaintiff Unit C at 7314 Whittier Avenue, Whittier, California 90602 (the ‘Unit’), to maintain the habitability of the Unit, and to provide necessary repairs to the Unit to maintain said habitability (the ‘Agreement’). The Agreement also provided that Defendants would provide a stove for Plaintiff’s use, and that Plaintiff’s security deposit would be returned to Plaintiff within 21 days after the premises are vacated and/or that a written accounting of charges to the security deposit would be provided during this time.” (Complaint ¶9.) Plaintiff alleges that throughout her tenancy, Plaintiff notified Defendants of: roach infestations, water leaks, a non-functioning air conditioning unit, and a non-functioning stove and gas leak. (Complaint ¶¶10-13.) Plaintiff also alleges that her water was turned off, without notice, approximately four or five times. (Complaint ¶19.) “In or around January 2016, Plaintiff called the Los Angeles County Health Department to report that there was no heat in the Unit. Approximately two weeks after her telephone call, a health department inspector visited the Unit.” (Complaint ¶14.) “In or around February 2016, Defendants informed Plaintiff that they knew that Plaintiff was the one that complained to the Health Department. [¶] In or around February 2016, Defendants began regularly knocking on Plaintiff’s door repeatedly, barging into the Unit without notice to Plaintiff, and going through Plaintiff’s personal belongings, despite her requests for notice. Plaintiff called the police due to Defendants’ harassment of her.” (Complaint ¶¶15-16.) “In or around March 2016, Defendants evicted Plaintiff in retaliation for her complaints of the lack of habitability of the Unit. Defendants refused to return Plaintiff’s deposit.” (Complaint ¶18.)

Plaintiff asserts the following causes of action: (1) Breach of Implied Warranty of Habitability; (2) Negligence; (3) Nuisance; (4) Breach of Written Contract; (5) Breach of Covenant of Good Faith and Fair Dealing; (6) Violation of Civil Code §1940.2; (7) Violation of Civil Code §1942.5; (8) Breach of Covenant of Quiet Enjoyment; (9) Constructive Eviction; and (10) Violation of Bus. & Prof. Code §17200 et seq.

Defendants move for summary judgment or alternatively summary adjudication of all causes of action. Defendants argue: (1) Plaintiff’s arguments are framed by the pleadings—Plaintiff did not allege claims arising out of her residency in Unit B of the Subject Premises in the operative Complaint, therefore, arguments and evidence submitted by Plaintiff with respect to Unit B must be disregarded; (2) Plaintiff has not standing to maintain causes of action arising out of breach of contract or habitability because Plaintiff was not a party to the lease agreement for Unit C.; (3) Plaintiff cannot maintain her first, second, third, fourth, sixth, seventh, and ninth causes of action because all of the repair and maintenance issues alleged by Plaintiff were timely addressed by Defendants; (4) Plaintiff’s fifth and tenth causes of action fail where Defendants did not engage in any unlawful, unfair, or fraudulent business practice; and (5) Plaintiff’s eighth cause of action fails where Plaintiff cannot establish that Defendants acted with the intent to deprive Plaintiff of the premises.

“Unit B”

A summary judgment or summary adjudication motion must address the “issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. (Carleston v. Tortosa (1993) 14 Cal.App.4th 745, 753.) Because Plaintiff has not made any allegations in her operative Complaint as to “Unit B”—any arguments or evidence referencing such must be disregarded by the Court for purposes of ruling on the instant Motion.

First Cause of Action – Breach of Warranty of Habitability

The warranty of habitability is articulated in Green v. Superior Court (1974) 10 Cal.3d 616, 637-638 as follows: “Under the implied warranty which we recognize, a residential landlord covenants that premises he leases for living quarters will be maintained in a habitable state for the duration of the lease. This implied warranty of habitability does not require that a landlord ensure that leased premises are in perfect, aesthetically pleasing condition, but it does mean that ‘bare living requirements’ must be maintained. In most cases substantial compliance with those applicable building and housing code standards which materially affect health and safety will suffice to meet the landlord’s obligations under the common law implied warranty of habitability.” “The tenant further reasonably can expect that the landlord will maintain a property in a habitable condition by repairing promptly any conditions, of which the landlord has actual or constructive notice, that arise during the tenancy and render the dwelling uninhabitable.” (Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1205-1206.) Claims for breach of implied warranty of habitability may be tortious as well as contractual, and damages may be recovered for intentional misconduct that accompanies a negligence claim. (See Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 916.)

Defendants offer Fact Nos. 13-52 in support of this issue. Plaintiff does not necessarily dispute these facts, but rather offers additional facts to show that Defendants had notice of the problems at issue, and intentionally failed to promptly remediate them. (See Fact Nos. 125-150.) The request for summary adjudication of the first cause of action is denied. There are triable issues of material fact as to whether the Subject Premises was maintained in a habitable condition for the duration of the tenancy.

Second Cause of Action – Negligence

A breach of the implied warranty of habitability will support a tenant’s cause of action for negligence against the landlord. (Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1205-1206.) In light of this authority, the Court finds that there are triable issues of material fact as to whether Defendants breached the implied warranty of habitability with respect to the premises. Therefore, Defendants’ motion for summary adjudication of the second cause of action for negligence is denied.

Third Cause of Action – Nuisance

A nuisance is defined as “[a]nything which is injurious to health…or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property….” (Cal. Civ. Code §3479.) A private nuisance is a civil wrong based on disturbance of rights in land. (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041.) In general, “to proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land. The injury, however, need not be different in kind from that suffered by the general public.” (Ibid.) “So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance.” (Ibid.)

As discussed above, there is a triable issue of material fact as to whether Defendants breached the implied warranty of habitability. “It is settled that where conduct which violates a duty owed to another also interferes with that party’s free use and enjoyment of his property, nuisance liability arises.” (Cutujian v. Benedict Hills Estates Assn. (1996) 41 Cal.App.4th 1379, 1389.) The Court finds that there are triable issues as to whether Defendants timely responded to Plaintiff’s complaints, and whether Defendants generally maintained the Premises in accordance with the implied warranty of habitability. Consequently, the Court finds that Plaintiff has raised triable issues of material fact to maintain a cause of action for private nuisance. The motion for summary adjudication of the third cause of action is denied.

Fourth Cause of Action – Breach of Contract

“[S]omeone who is not a party to the contract has no standing to enforce it or to recover extra-contractual damages for the wrongful withholding of benefits to the contracting party. [Citation.]” (Jones v. Aetna Casualty & Surety Co. (1994) 26 Cal.App.4th 1717, 1722.) The Court has reviewed the subject Lease Agreement attached as Exhibit A to the Declaration of Rey S. Yang. The Lease Agreement shows that Defendants entered into the Lease with Plaintiff’s husband, Rick Gonzales—Gonzales is the sole signatory to the Lease Agreement for Unit C. The Lease does not identify Plaintiff as a tenant, but rather, identifies Plaintiff as a co-occupant.

In Opposition, Plaintiff has failed to identify any statutory authority or precedent to determine that a contractual relationship existed between Defendants and the non-signatory Plaintiff. Where Plaintiff lacks standing to enforce the Lease Agreement at issue, Plaintiff cannot prevail on a breach of contract claim as a matter of law. The motion for summary adjudication of the fourth cause of action is granted.

Fifth Cause of Action – Breach of Implied Covenant of Good Faith and Fair Dealing

The breach of the covenant of good faith and fair dealing rests on the existence of a specific contractual obligation. The implied covenant odes not impose substantive terms and conditions beyond those to which the parties actually agreed. (Avidity Partners, LLC v. California (2013) 221 Cal.App.4th 1180, 1203-1204.) “In essence, the covenant is implied as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduce which (while not technically transgressing the express covenants) frustrates the other party’s rights to the benefits of the contract.” (Love v. Fire Insurance Exchange (1990) 221 Cal.App.3d 1136, 1153.)

Without the existence of a viable breach of contract claim, Plaintiff’s claim for breach of implied covenant of good faith and fair dealing cannot survive. The motion for summary adjudication of the fifth cause of action is granted.

Sixth Cause of Action – Violation of Civil Code §1940.2

“It is unlawful for a landlord to do any of the following for the purpose of influencing a tenant to vacate a dwelling…. (3) Use, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant’s quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person.” (Cal. Civ. Code §1940.2(a)(3).)

There is a triable issue of material fact as to whether Defendants took retaliatory actions against Plaintiff for making a complaint to the Health Department. For example, Plaintiff submits evidence that “[i]n or around February 2016, Mr. Chavez began regularly knocking on Plaintiff’s door repeatedly, barging into Unit C without notice to Plaintiff, and going through Plaintiff’s personal belongings…. Plaintiff was afraid of him and called the police due to this harassment. Plaintiff believes he was acting like this because of her complaints to him, the City, and the County about the living conditions in Unit C.” (Fact. No. 155; See also Fact Nos. 153, 154, 156, and 157. The motion for summary adjudication of the sixth cause of action is denied.

Seventh Cause of Action – Violation of Cal. Civ. Code 1942.5

“If the lessor retaliates against the lessee because of the exercise by the lessee of his or her rights under this chapter or because of [her] complaint to an appropriate agency as to the tenantability of the building, and if the lessee of a dwelling is not in default as to the payment of his or her rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days….” (Cal. Civ. Code §1942.5(a).)

The motion for summary adjudication of the seventh cause of action is denied. Defendants argue that they evicted Plaintiff because the Lease Agreement was set to expire on or about March 31, 2016, and Defendants elected not to renew said Lease. (See Fact. No. 9.) However, in Opposition, Plaintiff submits evidence to show that Defendants retaliated against Plaintiff for making complaints to the City, County, and Health Department. (See Fact Nos. 151-160.) Plaintiff also indicates that she was not in default at the time of the eviction. (Fact No. 163.) There is a triable issue of fact as to whether Defendants violated Cal. Civ. Code §1942.5.

Eighth Cause of Action – Constructive Eviction

Constructive eviction exists where there is a substantial and material interference with a tenant’s beneficial use, enjoyment and possession of the leased premises—a disturbance of the tenant’s possession, whereby the premises are rendered unfit or unsuitable for occupancy in whole or in substantial part for the purposes for which they were leased, or any interference with the beneficial enjoyment of the premises, will amount to a constructive eviction if the tenant vacates within a reasonable time. (Mills v. Richards (1927) 84 Cal.App.52, 57.) As indicated, there are triable issues of material fact as to whether Defendants breached the implied warranty of habitability. Where this cause of action is premised on those same allegations and the evidence provided in support thereof, the motion for summary adjudication of the eighth cause of action is denied.

Ninth Cause of Action – Breach of Covenant of Quiet Enjoyment

“The Covenant of Quiet Enjoyment arises impliedly between a landlord and tenant and affords the tenant quiet enjoyment and possession of the premises.” (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588.) The covenant of quiet enjoyment “insulates the tenant against any act or omission on the part of the landlord…which interferes with a tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy. [Citations.]” (Id.) Given the Court’s analysis under the first, second third, sixth, seventh, and eighth causes of action, the Court finds that there is sufficient evidence submitted by the Plaintiff to conclude that there is a triable issue of fact as to whether Defendants breached the covenant of quiet enjoyment. Summary adjudication of the ninth cause of action is denied.

Tenth Cause of Action – Violation of Bus. & Prof. Code §17200 et seq.

Plaintiff alleges that Defendants engaged in unfair competition by renting apartment units with uninhabitable conditions. Defendants argue that such conduct is insufficient to maintain this cause of action. The Court agrees.

Under Business & Professions Code §17200, et seq., “a plaintiff may recover money or property obtained from the plaintiff…through unfair or unlawful business practices.” (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.) However, “it is not an all-purpose substitute for a tort or contract action” and damages are unavailable under §17203.” (Id.) Here, there is no evidence to suggest that Plaintiff was lured into renting the Subject Premises, or into remaining in the Subject Premises by an unfair or unlawful business practice. Rather, Plaintiff appears to be bringing this claim as an alternative to tort or contract damages. The motion for summary adjudication of the tenth cause of action is granted.

The Court declines to rule on Defendants’ objections to the Separate Statement. Objections to Separate Statements are somewhat misplaced as the Separate Statement itself is not evidence, nor is counsel’s characterization of the underling evidence cited therein.

Plaintiff’s Evidentiary Objections are OVERRULED.