On 10/01/2015 KATHY L COX filed a Personal Injury - Other Personal Injury lawsuit against VN PARTNERSHIP. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are SAMANTHA JESSNER and STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Los Angeles, California
STEPHEN I. GOORVITCH
COX KATHY L.
JIMENEZ MARTHA LOPEZ BRIAN
RODRIGUEZ JESUS T.
MIRANDA SANTOS MORENA
DOES 1 THROUGH 50
ELMER I. PARTNERSHIP
LAW OFFICES OF MACAULEY EKPENISI
EKPENISI MACAULEY ISIOMA
FELDMAN STEPHEN MARK
SEGURA STEVE R. ESQ.
TANENBAUM WILLIAM CHARLES
4/8/2016: Substitution of Attorney
4/28/2016: Legacy Document
4/28/2016: Legacy Document
5/16/2016: Legacy Document
11/10/2016: Legacy Document
9/4/2018: Notice of Lien
11/13/2018: Minute Order
1/9/2019: Minute Order
1/18/2019: Notice of Status Conference and Order
3/13/2019: Notice of Related Case
4/26/2019: Minute Order
10/1/2015: COMPLAINT FOR DAMAGES FOR: 1. NEGLIGENCE; ETC
10/9/2015: NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM
11/6/2015: AMENDED SUMMONS
Motion for Attorney Fees; Filed by Ingrid Cervantes (Plaintiff)Read MoreRead Less
Notice of Ruling; Filed by Elmer I. Partnership (Defendant); VN Partnership (Defendant); Zilberstein, Ahron (DOE 2) (Defendant) et al.Read MoreRead Less
Notice of Ruling; Filed by Elmer I. Partnership (Defendant); VN Partnership (Defendant); Zilberstein, Ahron (DOE 2) (Defendant) et al.Read MoreRead Less
Association of Attorney; Filed by Kathy L. Cox (Plaintiff); Lan Daniels (Plaintiff); Lisa Daniels (Plaintiff) et al.Read MoreRead Less
at 08:30 AM in Department D; Hearing on Ex Parte Application (To Continue Hearing Date for Defendants' Motion for Summary Adjudication filed on behalf of Defendants VN Partnership, et al.) - Held - Motion GrantedRead MoreRead Less
Order (On Ex Parte Application To Continue Hearing Date For Defendants' Motion for Summary Adjudication Previously set on August 09, 2019 D. defenendant); Filed by Elmer I. Partnership (Defendant); VN Partnership (Defendant); Zilberstein, Ahron (DOE 2) (Defendant) et al.Read MoreRead Less
Minute Order ( (Hearing on Ex Parte Application To Continue Hearing Date for ...)); Filed by ClerkRead MoreRead Less
Ex Parte Application (Ex Parte Application to Continue Hearing Date for Defendants' Motion for Summary Adjudication, etc.); Filed by Elmer I. Partnership (Defendant); VN Partnership (Defendant); Zilberstein, Ahron (DOE 2) (Defendant) et al.Read MoreRead Less
at 09:00 AM in Department D; Order to Show Cause Re: (Related Case Determination of 18VESC04181 filed 08/17/18 (Dept P-Van Nuys) Court-Ordered Dismissal and 18VESC04182 filed 08/17/18 (Dept P-Van Nuys) Pending Appeal) - Held - Motion DeniedRead MoreRead Less
at 09:00 AM in Department D; Order to Show Cause Re: (Related Case Determination of 18VESC04182) - Not Held - Vacated by CourtRead MoreRead Less
APPLICATION AND ORDER FOR APPOINTMP OF GUARDIAN AD LITEM CIVFL.Read MoreRead Less
Ord Apptng Guardian Ad Litem; Filed by nullRead MoreRead Less
NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEMRead MoreRead Less
FIRST AMENDED COMPLAINT FOR DAMAGES FOR: 1. NEGLIGENCE; ETC.Read MoreRead Less
First Amended Complaint; Filed by Kathy L. Cox (Plaintiff)Read MoreRead Less
NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEMRead MoreRead Less
Civil Case Cover SheetRead MoreRead Less
Application ; Filed by Plaintiff/PetitionerRead MoreRead Less
Complaint; Filed by Alejandro Casillas (Plaintiff); Ingrid Cervantes (Plaintiff); Kathy L. Cox (Plaintiff) et al.Read MoreRead Less
COMPLAINT FOR DAMAGES FOR: 1. NEGLIGENCE; ETCRead MoreRead Less
Case Number: BC596578 Hearing Date: February 07, 2020 Dept: NCD
Case Number: BC 596578
Date: 2/7/20 Trial date: April 27, 2020
Case Name: Cox, et al. v. VN Partnership, et al.
MOTION FOR SUMMARY ADJUDICATION
[CCP § 437c; CRC 3.1350 et seq.]
Moving Party: Defendants VN Partnership, Elmer 1 Partnership, Ahron Zilberstein and
Responding Party: Plaintiffs Ricardo Urizar, Santos Moreno Miranda, Jesus Rodriguez,
Lucia Rodriguez, Felisa Ramirez, Kathy Cox and Bryan Harris
Order that judgment be entered in favor of defendants and against plaintiffs on the following causes of action: Negligence, Breach of Warranty of Habitability, Breach of Warranty of Quiet Enjoyment, Nuisance, Violation of Civil Code Section 1941.1, et seq., Discrimination, Unfair Business Practices, IIED.
Causes of Action from First Amended Complaint
2) Breach of Warranty of Habitability
3) Breach of Warranty of Quiet Enjoyment
5) Violation of Civil Code Section 1941.1 et seq.
7) Unfair Business Practices
SUMMARY OF COMPLAINT:
Plaintiff Kathy L. Cox, Bryan Harris, Cox’s special needs son, and several other plaintiffs allege that they occupy or occupied real property consisting of various units located at 6735 Elmer Street, North Hollywood, and have filed this lawsuit against defendants VN Partnership (“VN”), Elmer 1 Partnership (“Elmer 1”), Ahron Zilberstein (“A. Zilberstein”), and Vardit Zilberstein (“V. Zilberstein”), the owners, agents and managers of the property, for alleged problems with the property pertaining to habitability. The complaint alleges that various units were infested with vermin, bed bugs and rodents, had water leaks resulting in damaged walls and ceilings, damage to personal property, illness, and mold, and had various other defects. It is alleged that defendants knew of such defects before renting the units to plaintiffs, and that defendants were notified of the defects, promised to make repairs, but failed or refused to make repairs, or made repairs and asked plaintiffs to pay for them.
The reply indicates that this action, and this motion, involves only the following parties who remain in this matter:
Unit 3—Ricardo Urizar
Santos Morena Miranda
Unit 8—Jesus Rodriguez
Unit 9—Felisa Ramirez
Unit 15—Lisa Daniels
Unit 20—Kathy L. Cox
CCP § 437c (p): Burdens of Proof
Under CCP § 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”
CCP § 437c(f) provides that “a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”
Defendants here seek to establish that plaintiffs will be unable to establish each of their causes of action against defendants, because defendants promptly made all repairs necessary when notified. There is one remaining plaintiff which defendants argue is barred from pursuing this claim due to her execution of a written release.
The motion is a bit curious, as it does not set forth the issues which are sought to be summarily adjudicated, but in the notice of motion simply lists all of the causes of action.
The motion then seems to seek that the court make a unit by unit determination that a particular set of plaintiffs cannot establish their claims. There is no specification of issues, such as “Issue No. 1—The Unit 3 Plaintiffs will be unable to establish their cause of action for negligence because they will be unable to establish a breach of duty or damages.”
Under CRC Rule 3.1350(b):
“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 of undisputed facts.”
This is curious, as the notice is not clear, the motion is not clearly brought on this unit by unit basis, and it would appear, from the way the notice of motion and motion is brought, that if a triable issue is raised by any plaintiff, the entire cause of action should survive summary adjudication.
The separate statement sets forth issues such as “Issue No. 1—Plaintiffs cannot prove their negligence cause of action,” then presents the UMFs for each unit.
As argued in the opposition, the notice is not based on any element of the causes of action or affirmative or legal defense that defendants have against the FAC. The motion could be denied for failure to properly notice the relief sought, but the court elects not to do so.
The motion argues that defendant Felisa Ramirez of Unit 9 cannot maintain her claims against defendants because she executed an express release.
With respect to releases of liability, such releases will be enforced where the court finds they are clear, unambiguous and explicit:
“The release must be clear, unambiguous and explicit in expressing the intent of the parties. Waiver and release forms are to be strictly construed against the defendant. Such a form is simply a written assumption of a known risk, i.e., a risk reasonably anticipated by the plaintiff. To be operative, the defendant’s negligence which results in the plaintiff’s injury must be reasonably related to the object or purpose for which the release is given.” (Citations omitted).
Defendants submit the declaration of defendant Ahron Zilberstein, who is also the manager of the subject apartment complex, who states that in May of 2017, the Unit 9 tenant, Hidelisa Magana, gave a thirty day notice on behalf of herself and the other tenants, and agreed to vacate the premises, return the keys before June 9, 2017, and release the landlord for present and future liability claims, in exchange for the landlord foregoing rent owed from the date of notice to the date of vacating the premises. [UMF No. 47, and evidence cited; Zilberstein Decl. ¶¶ 22, 23, Ex. G].
However, a review of the attached document shows it is a document stating that “I Hidelisa Magana” is giving 30-day notice and that “tenant releases landlord for present and future liability and claims.” [Ex. G]. While the document is signed by Felisa Ramirez, she is not named as a direct party to any release of liability. The evidence is accordingly insufficient to shift the burden to plaintiff to raise triable issues of material fact on this issue. Moreover, even if the burden had shifted, plaintiff Ramirez submits a declaration explaining that she signed the document as a witness, at the instruction of her aunt, and did not intend to release the landlord or waive her right to sue for damages suffered at the subject property, which is not inconsistent with her deposition testimony on this issue, which was submitted for the first time in the reply. [See Ramirez Decl. ¶ 13; Reply, Ex. A, Ramirez Depo. pp. 53-57]. Triable issues have accordingly been raised, and the motion on this ground is denied.
Defendants argue that plaintiffs cannot prevail on their negligence claims because they cannot prove breach of duty.
To establish a claim for negligence, a plaintiff must allege and prove the following elements: The existence of a duty of care, breach of that duty, and an injury proximately caused by the breach. Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.
Ordinarily, the issue of breach of duty and due care in a negligence case presents questions of fact for the jury. 6 Witkin, Summary of Cal. Law (10th Ed. 2005) Torts 866, citing Wahlgren v. Market Street Ry Co. (1901) 132 Cal. 656, 663. Accordingly, defendant is entitled to a finding on summary judgment as a matter of law only if “the facts of the case permit only one reasonable conclusion.” Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 354.
The moving papers rely on the Zilberstein Declaration and argue that every defect raised to the landlord was repaired and cured. Defendants then argue, unit by unit, that all issues were fixed.
As to Unit 3, defendants argue that bedbug issues were completely cured in 2012, the bathroom ceiling was fixed, fumigators were sent to the Unit to eradicate the cockroach issue, and an electrical problem was fixed. [UMF Nos. 5-21, and evidence cited]. The moving papers also rely on the deposition testimony of plaintiff Ricardo Urizar, which defendants argue shows that all problems were repaired, but this testimony
actually indicates that it took a long time for repairs to be made to the ceiling, and that the landlord took too long to repair, as well as that the cockroach infestation persists. [Ex. S, Urizar Depo. pp. 33, 34, 39; see also Ex. W, Cox Depo. pp. 74-77, 84]. The evidence accordingly supports competing inferences that the landlord did breach the duty of due care with respect to maintenance of the Unit. The burden has accordingly not shifted, and the motion is denied.
Even if the burden had shifted, plaintiffs in opposition submit declarations of the tenants of Unit 3, who submit declarations and inspection reports from the County of Los Angeles Department of Public Health. The declarations indicate that conditions which were complained about to the landlord included infestation of roaches and bedbugs, inadequate plumbing, damage to ceiling due to leaking pipes, defective and non-working heating facilities, deteriorated and defective doors, floors, wall, mold and mildew, and defective air conditioning units. [Miranda Decl. ¶¶ 5-13]. The inspection reports note violations in Unit 3 regarding the lack of smoke detectors, a carbon monoxide device, illegal construction, failure to maintain drywall, plaster, ceilings, and roaches. [Exs. 2, 3, 4, 5, 6]. A letter was sent to the landlord informing of mold and roaches. [Urizar Decl. ¶ 11, Ex. 5]. A follow up inspection report notes that since the last inspection, Unit 3 had not been treated for vermin. [Ex. 6]. This presentation is sufficient to raise triable issues with respect to the breach of the landlords’ duties here, and the motion is denied.
Similar declarations and reports are submitted with respect to the other Units. Unit 8 reported similar defects to the landlord, a leaking roof caused water damage to the floor, with mold and mildew, which leaking and conditions have not been fully repaired. [Rodriguez Decl. ¶¶5-10]. The Inspection reports note failure to maintain sanitary floor covering, and the presence of live bed bugs and cockroaches in Unit 8. [Exs, 1, 3].
As to Unit 9, the tenant declaration indicates the tenant complained about similar issues, and specifically discusses a roof leak and other leaks, a flood, and a bedbug and roach infestation which continued to the date the complaint was filed. [Ramirez Decl. ¶¶ 5-11]. The inspection reports note violations with respect to Unit 9 to include failure to provide carbon monoxide detector, and failure to maintain safe and sanitary flooring. [Ex. 2].
As to Unit 20, the tenant declarations indicate there were complaints of roach infestation, a roof leak, with the floor covering or unit never being remediated for water damage or mold, and a roof collapse that was not promptly addressed. [Cox Decl. ¶¶ 8-14]. The Inspection reports indicate violations with respect to Unit 20 in connection with failure to maintain safe and sanitary flooring, failure to maintain ceilings, walls, window problems, and evidence of infestation [Exs. 3, 5, 7]. An inspection report from third parties also deemed the Unit not fit for human habitation. [Ex. 10].
As to Unit 15, there is no tenant declaration submitted. The opposition appears to rely on deposition testimony of Zilberstein in which he reviews a document concerning deficiencies in Unit 15, to include bedbugs, and a living room window condition, and a living room ceiling condition. [Ekpiniski Decl., Ex.1; Zilberstein Depo., pp. 95-96]. This unit is mentioned in the Inspection report with respect to failure to maintain safe and sanitary floor covering, and maintaining hazardous, missing, or defective receptacle outlets. [See Miranda Decl., Ex. 2]. There is also an argument that the moving papers fail to sufficiently establish repairs requested in a repair log were made as the testimony is that it was the custom to cross-off after making a repair, but there is no testimony authenticating the repair logs, or showing that anyone who testified or submitted a declaration made entries on the repair logs. [See Response to UMF Nos. 104, 105]. Objections have been made on this ground and are sustained. This tenant, Lisa Daniels, is the only tenant who has evidently not participated in opposing the motion, and the court will grant summary adjudication as to this tenant, given there
appears to be no opposition on file for this tenant. However, the court is granting the motion as to this tenant, even though the motion itself appears insufficient to meet the initial burden, and triable issues on the issue of breach of duty have been raised as to the other tenants. Also, the motion as to this cause of action does not attack any other element of the negligence claim. (The motion as to the nuisance and IIED cause of action attack damages).
Overall, with respect to this cause of action in general, the moving papers support competing inferences concerning the landlords’ breach of duties, and even if the burden had shifted, triable issues of fact remain. The motion is granted as to this plaintiff only, Lisa Daniels, because she has not filed an opposition to this motion for summary judgment.
Breach of Implied Warranty of Habitability, Implied Warranty of Habitability, Breach of Implied Warranty of Quiet Enjoyment, Violation of Civil Code § 1941.1 and Unfair Business Practices
The motion argues that the plaintiffs cannot establish that they gave notice of a breach of habitability issue that was not repaired or replaced within a reasonable time or at all, that there was a substantial interference with right to use and enjoy the premises because every required repair was made, that there was any unreasonable interference with use of the premises, that habitability issues were not properly fixed by defendants, or that any unfair practice was engaged in because repairs were made. As discussed above, each Unit has submitted evidence to establish defendants’ conduct in connection with one or more instance habitability and statutory conditions, which would support a reasonable inference of unreasonable delay or failure to make the requested repairs. The motion as to these claims are denied.
Nuisance and IIED
With respect to nuisance and IIED, the moving papers argue that plaintiffs will be unable to establish substantial harm or damage from the alleged nuisance, or that plaintiffs suffered severe emotional distress in connection with the IIED cause of action.
The elements of a cause of action for nuisance are: Plaintiff’s ownership or occupancy of real property; defendant used its property (ownership is not required) in violation of the courses of conduct proscribed in Civil Code § 3479 (including conduct offensive to the senses or an obstruction to the free use of the property so as to interfere with the comfortable enjoyment of life or property); the nuisance is permanent and complete; and past and future damages. Spaulding v. Cameron (1952) 38 Cal.2d 265.
Civil Code § 3479 defines “nuisance” as follows:
“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, 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, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”
With respect to landlord-tenant cases, a tenant can establish a nuisance by showing that a building or portion of a building has become substandard, defined as “when there exists in that building, or any portion of it, violations of the Uniform Housing Code, which endanger life, limb, health, property, safety or welfare of the public or the occupants.” Smith v. David (1981) 120 Cal.App.3d 101, 113.
To establish a cause of action for Intentional Infliction of Emotional Distress, plaintiff must prove the following essential elements: Extreme and outrageous conduct with the intention of causing, or reckless
disregard of the probability of causing, emotional distress; plaintiff suffered severe or extreme emotional distress; defendant’s outrageous conduct actually and proximately caused emotional distress; the conduct was directed to plaintiff. Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.
Case law has recognized that outrageous conduct can include discomfort and annoyance caused by a nuisance. Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d. 265, 271. There is case law in which IIED claims have been recognized in habitability cases with facts similar to those alleged here. In Aweeka v. Bonds (1971) 20 Cal.App.3d 278, for example, the court of appeal reversed a trial court’s order dismissing an action after sustaining a demurrer without leave to amend, where the tenants alleged that the landlord had refused to repair a shower on the floor above the tenants’ unit which leaked into their bedroom and a back door which was defective, and then, when the tenants elected to repair and deduct, raised the rent. The court of appeal found the allegations sufficient to state a cause of action for intentional infliction of mental distress, noting, “The authorities indicate that landlords have been held liable for abuse of their position.” Aweeka, at 282, citing Restatement, Second Torts, § 46, com.e.
The Second District recognizes that a landlord’s refusal to remediate problems caused by excessive moisture and mold infestation may support a claim for punitive damages, even in a commercial setting. See Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1068-1069. The Second District relied on Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, cited by plaintiff in the opposition, in which the court of appeal found the trial court had abused its discretion in granting a motion for judgment on the pleadings with respect to a claim for punitive damages, and foreclosing a cause of action for IIED as a matter of law, noting that plaintiff in that case:
“alleged that defendant had actual knowledge of defective conditions in the premises including leaking sewage, deteriorated flooring, falling ceiling, leaking roof, broken windows, and other unsafe and dangerous conditions. She also alleged that defendants "In maintaining said nuisance, . . . acted with full knowledge of the consequences thereof and the damage being caused to plaintiff, and their conduct was willful, oppressive and malicious."”
Stoiber, at 920-921.
In response to the motion, plaintiffs have stated in their declarations that they suffered personal and property damage as a result of the conduct of defendants in maintaining substandard living conditions where plaintiffs were living, and several plaintiffs have state they have visited the hospital for cold and air-borne illnesses and related to bed bug infestation. [See Miranda Decl. ¶¶ 14, 15; Urizar Decl. ¶¶ 14-16 (Unit 3); Rodriguez Decl. ¶¶ 16, 17, 19; Rodriguez (Lucia) ¶¶ 16, 17, 19 (Unit 8); Ramirez Decl. ¶¶ 11, 15 (Unit 9); Cox Decl. ¶¶ 21, 24, 25, 26, Exs. 11, 12 (Unit 20)].
The only tenant who has not submitted such evidence is Lisa Daniels, of Unit 15. The motion is granted as to this tenant and these causes of action only due to the lack of any opposition on file.
Defendants argue that defendant Cox has submitted no facts of any actions taken by defendants to discriminate against Cox or her son, Bryan Harris. The argument is that plaintiffs in the FAC contend that the discrimination resulted from the landlord failing to make repairs leaving the property in an uninhabitable condition, and that the landlord failed to provide Harris with accommodations. The moving papers indicate that with respect to the request for accommodations, defendants sent a letter asking what accommodations were requested, but that no response was received. There is no evidence of this referenced in either the memorandum
of separate statement. The evidence relied upon is evidently the Zilberstein Declaration, in which he indicates that after this matter was filed, he sent a letter inquiring about special accommodations. [Zilberstein Decl. ¶ 51, Ex. Q].
Cox and Harris in opposition submit evidence that in September of 2015, the landlord sent a notice of termination of lease because Cox had made complaints about the conditions at the property, and that on October 19, 2015, Cox sent a letter from her son’s teacher and asked for reasonable accommodations to allow plaintiffs to remain in the unit, but Zilberstein told her to her face that she had to move out because she made a complaint to the government and got an attorney. [Cox Decl. ¶¶ 20, Ex. 9]. The document submitted is a note from a teacher stating that Harris is nonverbal. [Ex. 9]. There is no formal request for accommodation, and no evidence submitted which would support a claim of discrimination based on disability; the argument and evidence seems to be that the tenancy was terminated because Cox complained of the habitability issues. The opposition has failed to submit evidence supporting a discrimination claim based on failure to accommodate.
The opposition argues that the claim is brought under Government Code § 12955(a), which provides:
Government Code section 12955, which provides, in pertinent part:
“It shall be unlawful: (a) For the owner of any housing accommodation to discriminate against or harass any person because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information of that person.”
The opposition argues broadly that plaintiff alleged that defendants treated plaintiffs differently from other tenants, because it refused to make repairs to Unit 20, while making repairs to other units.
However, the evidence submitted does not state that there was any differential treatment from the other Unit and does not appear to offer any circumstantial facts from which it could be reasonably inferred that the failure to repair was due to disability discrimination or because of any of the other enumerated protected categories. Triable issues of fact have accordingly not been raised, and the motion is granted as to this cause of action.
CCP 437c(g): Material facts which do or do not create a triable issue of controversy:
Motion for Summary Adjudication of Defendants is GRANTED in part and DENIED in part.
Motion for Summary Adjudication of the sixth cause of action for discrimination is GRANTED. Defendants have submitted evidence showing that it received a written request dated May 19, 2016, after the filing of this matter, requesting special accommodations for Bryan Harris, that a letter was sent requesting specifics, and that no response was received. [Zilberstein Decl. ¶51, Ex. Q]. The letter requesting specifics was actually returned as undeliverable. [Ex. Q]. However, this suggests that no accommodations were requested prior to the filing of the lawsuit, sufficient to shift the burden to raise triable issues with respect to whether accommodations were in fact requested prior to any alleged act of disability discrimination. Plaintiffs Cox and Harris in opposition do not submit a written request for accommodations, only a note describing Harris’ disability, and the testimony that Cox asked for an accommodation is not further supported by any details or facts supporting that the housing actions taken were based on disability discrimination, rather than plaintiff’s reports of living conditions to the government. [See Cox Decl. ¶ 20, Ex. 9]. Without evidence supporting a discrimination claim, or clear argument in the opposition, plaintiff will be unable to establish this cause of action, and the motion is properly granted.
Motion for summary adjudication of the fourth cause of action for nuisance, and eighth cause of action for IIED is GRANTED only as to plaintiff Lisa Daniels of Unit 15. Defendants have submitted evidence showing that Daniels is unable to show damages due to the alleged nuisance and IIED. [UMF Nos. 99-102]. In response to this showing, plaintiff Daniels has not submitted a declaration or other evidence to show that she suffered harm due to the alleged nuisance or IIED. While the opposition argues that she suffered inconvenience, discomfort and interference with quiet enjoyment, there is no evidence offered stating that plaintiff in fact suffered such harm. [See Response to UMF Nos. 99-102, no reference to evidence]. Plaintiff has failed to submit evidence to raise a triable issue on the element of her claim, and the motion is properly granted.
Motion for summary adjudication of the fourth cause of action for nuisance, and eighth cause of action for IIED is DENIED as to all remaining defendants. Plaintiffs in opposition to the motion have submitted evidence supporting harms suffered as the result of the alleged nuisance and IIED. [Miranda Decl. ¶¶ 14, 15; Urizar Decl. ¶¶ 14-16 (Unit 3); Rodriguez Decl. ¶¶ 16, 17, 19; Rodriguez (Lucia) ¶¶ 16, 17, 19 (Unit 8); Ramirez Decl. ¶¶ 11, 15 (Unit 9); Cox Decl. ¶¶ 21, 24, 25, 26, Exs. 11, 12 (Unit 20)].
Motion is otherwise DENIED.
Defendants have argued that the remaining causes of action cannot be established by plaintiffs on the ground they will be unable to establish they cannot prove breach of duty, that plaintiffs gave notice of a breach of habitability issue that was not repaired or replaced within a reasonable time or at all, that there was a substantial interference with right to use and enjoy the premises because every required repair was made, that there was any unreasonable interference with use of the premises, or that tenantability issues were not properly fixed by defendants. In support of this argument, defendants submit evidence showing that there were significant defects and conditions of the premises but argues that repairs were made within a reasonable time of the landlord being informed of the issues. [UMF Nos. 1-125, and evidence cited]. That evidence includes testimony from defendant as well as tenants which show significant time frames when substantial defects, such as bedbug and cockroach infestation and leaking water and water infiltration issues, were present, which evidence itself would support a competing reasonable inference that even if repairs were made, they were not completed in a reasonable time. [See, e.g. Zilberstein Decl. ¶¶10, 19, 27, 48: Ex. P; Ex. S, Urizar Depo. pp. 33, 34, 39; Ex. W, Cox Depo. pp. 74-77, 84]. This calls into question whether defendants have met their initial burden on these issues concerning the defects having been repaired to shift the burden to plaintiffs to raise triable issues of fact. Even if the burden has shifted, plaintiffs with respect to each Unit have made evidentiary objections and submitted evidence sufficient to raise triable issues of material fact with respect to whether defendants actually undertook to repair, successfully repaired or addressed issues appropriately and within a reasonable time, including inspection reports citing violations by the County of Los Angeles Department of Public Health Health. [Miranda Decl. ¶¶ 5-13; Exs. 2, 3, 4, 5, 6; Urizar Decl. ¶ 11, Ex. 5 6; Rodriguez Decl. ¶¶5-10, Exs. 1, 3; Ramirez Decl. ¶¶ 5-11, Ex.2; Cox Decl. ¶¶ 8-14, Exs. 3, 5, 7, 10; Ekpiniski Decl., Ex.1; Zilberstein Depo., pp. 95-96].
With respect to the argument that defendant Felisa Ramirez of Unit 9 cannot maintain her claims against defendants because she executed an express release, the evidence submitted by defendants consists of an agreement which does not identify Felisa Ramirez as a party to that agreement, the only named party being Hidelisa Magana. [Ex. G]. This evidence is accordingly insufficient to shift the burden to plaintiff to raise triable issues of material fact on this issue. The court further finds that even if the burden had shifted, plaintiff Ramirez has submitted a declaration explaining that she signed the document as a witness, at the instruction of her aunt, and did not intend to release the landlord or waive her right to sue for damages suffered at the subject property, which is not inconsistent with the document itself or Ramirez’s deposition testimony on this issue, submitted for the first time with the reply. [See Ramirez Decl. ¶ 13; Reply, Ex. A, Ramirez Depo. pp. 53-57]. Triable issues have accordingly been raised, and the motion on this ground is properly denied.
Plaintiffs Objections to Defendants Exhibits and Declarations:
Objection A1, is OVERRULED
Objection A2, A3, A4 and B5 are SUSTAINED.
Defendants’ Evidentiary Objections:
The court notes that the inspection reports are accompanied by declarations of custodians of records.
The court has not considered statements on ultimate legal issues in this matter, such as that there are triable issues of fact, binding on the court.
Defendants’ Evidentiary Objections to the Declaration of Ricardo Urizar are OVERRULED.
Defendants’ Evidentiary Objections to the Declaration of Santos Morena Miranda: Objections Nos. 16 and 17 are SUSTAINED. Objections are otherwise OVERRULED.
Defendants’ Evidentiary Objections to the Declaration of Lucia Rodriguez are OVERRULED.
Defendants’ Evidentiary Objections to the Declaration of Jesus Rodriguez are OVERRULED.
Defendants’ Evidentiary Objections to the Declaration of Felisa Ramirez are OVERRULED.
Defendants’ Evidentiary Objections to the Declaration of Kathy Cox: Objections Nos. 28 and 29 are SUSTAINED. Remaining Objections are OVERRULED.
Defendants’ Evidentiary Objections to the Declaration of Bryan Harris: Objections Nos. 28 and 29 are SUSTAINED. Remaining Objections are OVERRULED.
Defendants’ Evidentiary Objections to the Declaration of Macauley Ekpenisi: Objections Nos. 1, 3 and 5 are SUSTAINED. Remaining Objections are OVERRULED.
Defendants’ Evidentiary Objections to Notice of Errata are not in proper format such that the court is not able to make any evidentiary rulings.