William Hoffman vs Adriana Alejandra Palma
Case No: 19CV04066
Hearing Date: Fri Aug 30, 2019 9:30

Nature of Proceedings: Motion for Summary Judgment

Tentative Ruling: The court denies plaintiff William Hoffman’s motion for summary judgment or, in the alternative, summary adjudication.

Background: This is an unlawful detainer action (UDA). Plaintiff William J. Hoffman, receiver of certain assets of Dario Pini, alleges: On May 30, 2019, plaintiff served defendant Adriana Alejandra Palma a 60-day notice to perform a covenant of her written lease; to wit: compliance with Santa Barbara Municipal Code § 22.04.010, subdivision (K), and incorporated International Property Maintenance Code § 404.5, by exceeding the maximum allowed occupancy of the rental unit. The bedroom of the rental unit is 109 square feet, limiting the occupancy of the rental unit to two persons. The rental unit is now occupied by six persons.

Defendant answered the complaint generally denying the allegations and alleging she did not receive the 60-day notice until July 23, 2019. Defendant asserts affirmative defenses of retaliation, discrimination based on familial status, fraud, unclean hands, waiver and estoppel, plaintiff is seeking to evict her from uninhabitable premises to avoid relocation costs, and she was not given a lease and notice interpreted into Spanish.

MSC is scheduled for August 28 and trial for August 30, 2019.

Motion: Plaintiff filed a motion for summary judgment or, in the alternative summary adjudication of the defenses of retaliatory eviction and breach of the warranty of habitability. (In the answer, defendant does not assert breach of the warranty of habitability.)

CCP § 1170.7 provides that, in an unlawful detainer action, a party may move for summary judgment upon giving five days notice. Plaintiff personally served the motion and supporting documents on counsel for plaintiff on August 23, 2019.

Summary judgment is appropriate where there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. CCP § 437c(c). A party may move for summary adjudication as to one or more affirmative defenses if the party contends that there is no merit to an affirmative defense as to any cause of action. CCP § 437c(f)(1).

“The party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 850 (2001). “[A] plaintiff bears the burden of persuasion that ‘each element of’ the ‘cause of action’ in question has been ‘proved,’ and hence that ‘there is no defense’ thereto. [CCP § 437c(p)(1)].” Id. Plaintiff’s initial burden of proof in moving for summary judgment, however, does not include disproving any affirmative defenses asserted by defendants. When a plaintiff meets its burden of proving each element of its cause of action, “the burden shifts to the defendant ‘to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’” Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co., 170 Cal.App.4th 554, 564-565 (2009).

The court my grant summary adjudication of an affirmative defense “when there is no triable issue of material fact as to the defense, and the moving party is entitled to judgment on the defense as a matter of law.” Kendall-Jackson Winery, Ltd. v. Superior Court, 76 Cal.App.4th 970, 977–78 (1999). “The plaintiff bears the initial burden to show there is no triable issue of material fact as to the defense and that he or she is entitled to judgment on the defense as a matter of law. In so doing, the plaintiff must negate an essential element of the defense, or establish the defendant does not possess and cannot reasonably obtain evidence needed to support the defense.” See’s Candy Shops, Inc. v. Superior Court, 210 Cal.App.4th 889, 900 (2012). If plaintiff’s moving papers establish a prima facie showing that meets the plaintiff’s burden, the burden then shifts to the defendant to make a prima facie showing of the existence of a triable material factual issue. Id. “A summary adjudication motion is subject to the same rules and procedures as a summary judgment motion.” Case v. State Farm Mut. Auto. Ins. Co., 30 Cal.App.5th 397, 401 (2018).

“In ruling on the motion, the court must view the evidence in the light most favorable to the opposing party.” Shin v. Ahn, 42 Cal.4th 482, 499 (2007). “[T]he moving party’s evidence must be strictly construed, while the opposing party’s evidence must be liberally construed. Binder v. Aetna Life Ins. Co., 75 Cal.App.4th 832, 838 (1999). The court must “consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.” Id. Conclusions of fact or law do not constitute evidentiary facts. Hayman v. Block, 176 Cal.App.3d 629, 639 (1986). The court may not weigh conflicting evidence in the context of a summary judgment motion. Spangle v. Farmers Ins. Exchange, 166 Cal.App.4th 560, 576 (2008).

“Summary judgment is properly granted only when the evidence in support of the moving party establishes that there is no issue of fact to be tried.” Lipson v. Superior Court, 31 Cal.3d 362, 374 (1982). “There is no obligation on the opposing party … to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element … necessary to sustain a judgment in his favor.” Consumer Cause, Inc. v. Smilecare, 91 Cal.App.4th 454, 468 (2001).

“The party opposing the summary judgment cannot rely on its pleadings, but must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party’s evidence, standing alone, is sufficient to entitle the party to judgment.” Buehler v. Alpha Beta Co., 224 Cal.App.3d 729, 733 (1990). This is true even if the pleading is verified. Kurokawa v. Blum, 199 Cal.App.3d 976, 988 (1988).

1. Summary Judgment: Plaintiff’s motion does not address the elements of an UDA. Presumably, plaintiff seeks judgment based on the failure to perform a covenant of the lease by failing to comply with the Santa Barbara Municipal Code. But plaintiff does not identify the provision of the lease of which defendant is in breach. Nor does plaintiff attach the lease to any declaration in support of the motion.

Plaintiff must demonstrate service of the 60-day notice to perform a covenant of the written lease in compliance with CCP § 1162. In his declaration, Anthony Martinez says he served the notice on May 30. This is a conclusory statement without evidentiary facts. His Exhibit D says he posted notice. But CCP § 1162 requires sending a copy through the mail as well.

The evidence submitted in support of the motion fails to sustain plaintiff’s burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. Plaintiff says his motion will be supported by “all pleadings and papers on file herein.” But, just as a party opposing the summary judgment cannot rely on its pleadings, even verified pleadings (see above), so too the moving party cannot rely on allegations in his pleadings when the evidence accompanying the summary judgment motion is deficient. Lipson v. Superior Court, supra, 31 Cal.3d 362, 374 (1982).

The court denies the motion for summary judgment.

2. Summary Adjudication:

a. Retaliatory Eviction: Plaintiff seeks summary adjudication of defendant’s affirmative defense of retaliatory eviction. Plaintiff says: The defense is not available because the Plaintiff has sufficient cause to end the tenancy because it is an illegal tenancy to begin with.” Plaintiff provides no authority for this proposition. A memorandum in support of a motion “must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” CRC 3.1113(b). “Issues not supported by citation to legal authority are subject to forfeiture.” People ex rel. Alzayat v. Hebb, 18 Cal.App.5th 801, 831 n10 (2017) (applying similar CRC 8.204(a)(1)(B) applicable to appeals). “A point which is merely suggested by [a party’s] counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.” In re Steiner, 134 Cal.App.2d 391, 399 (1955).

Plaintiff says: “The defendants have not alleged that they have complained to an appropriate agency about the tenantablity of the Premises, nor have they alleged participation in a lawful organization advocating tenant’s rights, nor a nexus between those activities and the notice to terminate that brought about this unlawful detainer. Defendants have failed to allege any improper motive on the part of Plaintiff for the termination of this tenancy. In the absence of such allegations, and the absence of evidence to support such allegations, Defendants have not even made a prima facie showing to support the defense, and should not be allowed to present a case to a jury without such a showing.”

First, this is not a test of allegations. Second, plaintiff has the burden backwards. In the context of a motion for summary adjudication, defendant does not have the burden of coming forward with evidence of the affirmative defense of retaliatory eviction. Rather, plaintiff bears the initial burden to show there is no triable issue of material fact as to the defense and that he is entitled to judgment on the defense as a matter of law. Plaintiff presents no evidence on this defense in either declaration submitted in support of the motion.

Plaintiff cites Civil Code § 1942.5(f), which does not read as quoted in the memorandum. Presumably plaintiff means subdivision (g) of § 1942.5. That section provides an exception to the retaliatory eviction statute if the notice of termination “states the ground upon which the lessor, in good faith, seeks to recover possession.” Plaintiff simply says, in conclusory fashion, that its action is made in a good faith effort to “restore this unit to legal habitability.” Plaintiff presents no evidence in support of this conclusion.

Plaintiff has not sustained his burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact with respect to the defense of retaliatory eviction. Therefore, the court denies summary adjudication of that defense.

b. Warranty of Habitability: Plaintiff says the defense of warranty of habitability is not available. In her answer, defendant did not assert an affirmative defense based on the warranty of habitability. Defendant does allege that plaintiff is seeking to evict her from uninhabitable premises to avoid relocation costs.

Plaintiff says the defense of breach of the warranty of habitability “is not available to defendants as a matter of law because of the operation of Civil Code § 1941.2: the landlord’s duty did not arise because the tenants’ violations of overcrowding contributed substantially to the existence of the inhabitable conditions and interfered substantially with the landlord’s obligation to correct the uninhabitable condition.”

Civil Code § 1941.2(a) reads, in part: “No duty on the part of the landlord to repair a dilapidation shall arise under Section 1941 or 1942 if the tenant is in substantial violation of any of the following affirmative obligations, 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 the necessary repairs….” Following are five obligations, none of which refers to overcrowding. Also, this contention is unsupported by any evidence that the alleged violation contributed to the dilapidation or interferes with the landlord’s obligations.

To the extent defendant can be construed to have raised a defense of the warranty of habitability, plaintiff has not sustained his burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact with respect to the defense. Therefore, the court denies summary adjudication of the defense of the warranty of habitability.

3. Order: The court denies plaintiff William Hoffman’s motion for summary judgment or, in the alternative, summary adjudication.