Harold Davis et al. v. David Krause et al.

Furthermore, on January 27, 2023 Plaintiff informed Defendants [of] the following issues, water damage, water gutters clogged causing a waterfall and flooding in the back yard, however the Defendants failed to respond or to make the necessary repairs. Plaintiff alleges that the Defendants negligently owned and maintained the property leased by Plaintiff in a manner that was unsafe and created a dangerous condition that caused injury to Plaintiff. Therefore, Plaintiff suffered damages as a result which will be proven at trial.” (Complaint, ¶ GN-1.)

The complaint does not allege a cause of action for breach of the implied warranty of habitability. (See Complaint, ¶ 8.)

At issue is a motion for summary judgment by defendants Krause and Norcal Property Management, Inc. (hereafter, Defendants). Plaintiffs oppose the motion.

LEGAL STANDARD—SUMMARY JUDGMENT

The pleadings limit the issues presented for summary judgment or summary adjudication. Such a motion may not be granted or denied based on issues not raised by the pleadings. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 (Laabs); Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 (Nieto).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)

A motion for summary judgment or adjudication shall be granted only if it completely disposes of an entire cause of action, an affirmative defense, a claim for damages, or an “issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1); McCaskey v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975; Palm Spring Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.)

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. . . . The burden then shifts to the plaintiff to show there is a triable issue of material 17 fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable finder of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at p. 850.)

While the same standards of admissibility govern both sides’ supporting evidence, the opposition evidence is liberally construed while the moving party’s evidence is strictly construed. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 (Yanowitz).)

A reply “shall not include any new evidentiary matter, additional material facts, or separate statement submitted with the reply and not presented in the moving papers or opposing papers.” (Code Civ. Proc., § 437c, subd. (b)(4); Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.)

BASIS FOR DEFENDANTS’ MOTION

Defendants move “for summary judgment in their favor.” In the alternative, they seek summary adjudication “as to the following issues: (1) Plaintiffs’ failure to establish medical causation; (2) Plaintiffs’ failure to prove a breach of the implied warranty of habitability; (3) Plaintiffs’ failure to establish compensable personal property damages; and (4) Plaintiffs’ failure to establish recoverable emotional distress damages.” (Notice of Motion at p. 2:3-7.)

A form complaint must list all causes of action alleged and must include a separate attachment for each cause of action. Breach of the warranty of habitability is a cause of action distinct from both breach of contract and negligence. It must be pleaded separately. “The elements of a cause of action for breach of the implied warranty of habitability ‘are the existence of a material defective condition affecting the premises’ habitability, notice to the landlord within a reasonable time after the tenant’s discovery of the condition, the landlord was given a reasonable time to correct the deficiency, and resulting damages.’” (Peviani v. Arbors at California Oaks Property Owner, LLC (2021) 62 Cal.App.5th 874, 891; see also 2 CACI 4350.) The complaint also does not allege any violation of Civil Code section 1941.1. Statutory claims must be alleged with particularity.

The complaint does not allege a cause of action for breach of the implied warranty of habitability. The complaint also makes no mention of emotional distress damages; it seeks only monetary damages in the amount of $30,000.00. The space for requesting “other (specify)” damages is left blank. (See complaint, ¶ 10.) A motion for summary judgment must be directed to the issues raised by the pleadings. The opposition papers to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. Declarations in opposition to a motion for summary judgment are no substitute for amended pleadings. (County of Santa Clara v. Atlantic Richfield Co. (2006) 136 Cal.App.4th 292, 332-333.)

California Rules of Court, rule 3.1350, subdivision (b) states, “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement 18 of undisputed material facts.” California Rules of Court, rule 3.1350(d)(1)(A) further states that the statement in support of a motion “must separately identify: (A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.”

Defendants’ separate statement does not repeat any of the causes of action or issues mentioned in the notice of motion and only lists 44 undisputed material facts in support of summary judgment. Defendants’ separate statement is also not in the format required by California Rules of Court, rule 3.1350(h).

Rather than deny the motion outright, the court will treat it as a motion for summary judgment only. Summary adjudication is unavailable. (See Holt v. Brock (2022) 85 Cal.App.5th 611, 619 [court’s power to deny summary judgment outright for failure to comply with the rules of court is discretionary, not mandatory.])

DISCUSSION

Only two causes of action are alleged in the complaint: breach of a written contract (a lease agreement) and general negligence.

Summary Judgment Must be Denied As to the Complaint

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) “The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917; see also CACI, No. 400.)

Defendants do not specifically address breach of contract or negligence in their supporting memorandum or their separate statement. For this reason, summary judgment must be denied. (North Coast Business Park v Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29, fn. 4 [finding that facts not set forth in the moving party’s separate statement of facts cannot be considered in ruling on a motion for summary judgment.].) The closest Defendants come to arguing that an essential element of the two causes of action that are actually alleged in the complaint cannot be established is to assert that “Plaintiffs’ claims fail because they cannot satisfy the essential element of causation.” (Supporting memorandum at p. 7:4.) But that isolated argument is insufficient to satisfy their initial burden.

Argument About Causes of Action Not Raised in the Complaint

Defendants make several arguments about causes of action not alleged in the complaint. For example, defendants argue that in “California mold litigation, causation must be established through competent expert testimony grounded in reliable scientific evidence of exposure, not speculation.” (Supporting memorandum at p. 7:4.) But the complaint cannot reasonably be construed as alleging any type of mold-related injury. More broadly, the complaint cannot reasonably be construed as alleging that either Plaintiff suffered any kind of personal injury or illness, through mold exposure or otherwise.

References in both sides’ papers to mold possibly having an effect on the health of Plaintiffs’ child are irrelevant. That is not alleged in the complaint, and Plaintiffs’ child is not a party to this lawsuit. (Code Civ. 19 Proc., § 372, subd. (a); Alex R. v. Superior Court (2016) 248 Cal.App.4th 1, 7 [general rule is minor child must appear through guardian ad litem].)

Defendants next argue that Plaintiffs cannot recover emotional distress damages. But the complaint does not make any reference to emotional distress, much less state a cause of action for negligent or intentional infliction of emotional distress. Nor does it seek emotional distress damages. (Complaint at ¶ 10.) Because Plaintiffs have not alleged causes of action for nuisance, breach of the implied warranty of habitability, or intentional or negligent infliction of emotional distress, they are not entitled to damages for mental suffering under Stoiber v. Honeychuk (1980) 101 Cal.App.3d 902, 919-922.

The complaint also does not allege that Plaintiffs were constructively evicted. Constructive eviction is another distinct cause of action not encompassed by breach of contract or negligence. It would have to be separately pleaded. The creation of form complaints has not changed the requirement that a complaint must state all facts necessary to support the alleged causes of action. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484.) Summary judgment cannot be granted or denied based on issues outside the pleadings. (Laabs, supra, 163 Cal.App.4th at 1258; Nieto, supra, 181 Cal.App.4th at 73.) Defendants’ arguments regarding medical causation, breach of the implied warranty of habitability, constructive eviction, and emotional distress fail to meet their initial burden.

Defendants argue Plaintiffs have no evidence to support the one form of damages that is alleged in the complaint: $30,000 in apparently property damages (as no personal injuries of any kind are alleged in the complaint). (Complaint at ¶ 10.) Defendants rely on certain written discovery responses from both Plaintiffs and excerpts from their deposition testimony. (See undisputed material facts 14-16, 18 and 25, citing portions of exhibits 4, 6, 7, and 10 to the declaration of Brian Ngo, counsel for Defendants.)

When a defendant moves for summary judgment on the ground that a plaintiff has “no evidence” to establish an essential element of a cause of action, a moving defendant must support such a motion with discovery admissions or other admissible evidence following extensive discovery, showing that “plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar, supra, 25 Cal.4th at pp. 854-855.) It is not enough for a moving defendant to show merely that a plaintiff currently “has no evidence” on a key element of the claim. (See Gaggero v.

Yura (2003) 108 Cal.App.4th 884, 891, citing Aguilar [“the absence of evidence to support a plaintiff’s claim is insufficient to meet the moving defendant’s initial burden of production. The defendant must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”].) “Such evidence may consist of the deposition testimony of the plaintiff’s witnesses, the plaintiff’s factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v.

Citibank, N.A. (2011) 202 Cal.App.4th 89, 110.) “A motion for summary judgment is not a mechanism for rewarding limited discovery; it is a mechanism allowing the early disposition of cases where there is no reason to believe that a party will be able to prove its case.” (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1441-1442.)

Though the evidence Defendants rely on suggests that Plaintiffs may have little evidence to support $30,000 in damages, they do no establish that Plaintiffs cannot reasonably obtain any evidence to support that figure. Therefore, this argument also fails to meet Defendants’ initial burden for summary judgment.

CONCLUSION

Defendants’ motion for summary judgment is denied for failure to meet the initial burden.

The court will prepare the order.

- oo0oo -

21