This case was last updated from Los Angeles County Superior Courts on 06/03/2019 at 01:40:37 (UTC).

NATIONAL FUNDING INC VS LA CONSULTING & COUNSELING LLC ET AL

Case Summary

On 07/11/2016 NATIONAL FUNDING INC filed a Contract - Other Contract lawsuit against LA CONSULTING COUNSELING LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6467

  • Filing Date:

    07/11/2016

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

NATIONAL FUNDING INC.

Defendants and Respondents

LA CONSULTING & COUNSELING INC.

DIAZ PHILLIP

DOES 1 THROUGH 10

LIFESCAPE SOLUTIONS

ALLEVA PAUL

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

SALISIAN NEAL S. ESQ.

 

Court Documents

SUMMONS

7/11/2016: SUMMONS

NOTICE OF CASE MANAGEMENT CONFERENCE

7/20/2016: NOTICE OF CASE MANAGEMENT CONFERENCE

PROOF OF SERVICE OF SUMMONS

8/18/2016: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE OF SUMMONS

8/18/2016: PROOF OF SERVICE OF SUMMONS

REQUEST FOR ENTRY OF DEFAULT

8/29/2016: REQUEST FOR ENTRY OF DEFAULT

REQUEST FOR ENTRY OF DEFAULT

9/8/2016: REQUEST FOR ENTRY OF DEFAULT

PROOF OF SERVICE OF SUMMONS

9/20/2016: PROOF OF SERVICE OF SUMMONS

REQUEST FOR ENTRY OF DEFAULT

9/26/2016: REQUEST FOR ENTRY OF DEFAULT

Unknown

10/12/2016: Unknown

Minute Order

10/25/2016: Minute Order

DECLARATION AND [PROPOSED] ORDER PERMITTING COPIES IN LIEU OF ORIGINALS IN PLAINTIFF'S APPLICAIION FOR DEFAULT JUDGMENT

10/31/2016: DECLARATION AND [PROPOSED] ORDER PERMITTING COPIES IN LIEU OF ORIGINALS IN PLAINTIFF'S APPLICAIION FOR DEFAULT JUDGMENT

ORDER PERMITTING COPIES IN LEIU OF ORIGINALS IN PLAINTIFF'S APPLICATION FOR DEFAULT JUDGMENT

10/31/2016: ORDER PERMITTING COPIES IN LEIU OF ORIGINALS IN PLAINTIFF'S APPLICATION FOR DEFAULT JUDGMENT

DECLARATION FOR COMPUTATION OF LEGAL INTEREST TO BE INCLUDED IN THE DEFAULT JUDGMENT

10/31/2016: DECLARATION FOR COMPUTATION OF LEGAL INTEREST TO BE INCLUDED IN THE DEFAULT JUDGMENT

REQUEST TO GRANT ATTORNEYS' FEES PURSUANT TO LOCAL RULE OF COURT 3.214

10/31/2016: REQUEST TO GRANT ATTORNEYS' FEES PURSUANT TO LOCAL RULE OF COURT 3.214

DECLARATION OF SANDRA OTERO IN SUPPORT OF PLAINTIFF'S APPLICATION FOR DEFAULT JUDGMENT

10/31/2016: DECLARATION OF SANDRA OTERO IN SUPPORT OF PLAINTIFF'S APPLICATION FOR DEFAULT JUDGMENT

JUDGMENT

10/31/2016: JUDGMENT

NOTICE OF ENTRY OF JUDGMENT OR ORDER

11/8/2016: NOTICE OF ENTRY OF JUDGMENT OR ORDER

NOTICE OF STAY OF PROCEEDINGS

11/29/2017: NOTICE OF STAY OF PROCEEDINGS

12 More Documents Available

 

Docket Entries

  • 11/29/2017
  • NOTICE OF STAY OF PROCEEDINGS

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  • 11/29/2017
  • Notice of Stay of Proceedings (Bankruptcy); Filed by Plaintiff/Petitioner

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  • 12/07/2016
  • at 08:30 AM in Department 38; (OSC-Failure to File Default Judg; OSC Discharged) -

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  • 11/08/2016
  • NOTICE OF ENTRY OF JUDGMENT OR ORDER

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  • 10/31/2016
  • at 08:30 AM in Department 38; (Judgment signed and filed; Finding in favor of Plaintiff) -

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  • 10/31/2016
  • REQUEST FOR DISMISSAL

    Read MoreRead Less
  • 10/31/2016
  • Proof of Service

    Read MoreRead Less
  • 10/31/2016
  • DECLARATION AND [PROPOSED] ORDER PERMITTING COPIES IN LIEU OF ORIGINALS IN PLAINTIFF'S APPLICAIION FOR DEFAULT JUDGMENT

    Read MoreRead Less
  • 10/31/2016
  • ORDER PERMITTING COPIES IN LEIU OF ORIGINALS IN PLAINTIFF'S APPLICATION FOR DEFAULT JUDGMENT

    Read MoreRead Less
  • 10/31/2016
  • REQUEST TO GRANT ATTORNEYS' FEES PURSUANT TO LOCAL RULE OF COURT 3.214

    Read MoreRead Less
15 More Docket Entries
  • 08/29/2016
  • Default Entered; Filed by Plaintiff/Petitioner

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  • 08/29/2016
  • REQUEST FOR ENTRY OF DEFAULT

    Read MoreRead Less
  • 08/18/2016
  • PROOF OF SERVICE OF SUMMONS

    Read MoreRead Less
  • 08/18/2016
  • Proof-Service/Summons

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  • 08/18/2016
  • PROOF OF SERVICE OF SUMMONS

    Read MoreRead Less
  • 07/20/2016
  • Notice of Case Management Conference; Filed by Clerk

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  • 07/20/2016
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 07/11/2016
  • Complaint; Filed by National Funding, Inc. (Plaintiff)

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  • 07/11/2016
  • COMPLAINT FOR: I. BREACH OF WRITTEN LOAN AGREEMENT; ETC

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  • 07/11/2016
  • SUMMONS

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Tentative Rulings

Case Number: BC626467    Hearing Date: April 9, 2021    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

MARGARET JEWETT;

Plaintiff,

vs.

FIGUEROA ARMS APARTMENTS, et al.;

Defendants.

Case No.:

BC626801 (Lead)

Consolidated Cases:

LAM16K04467

BC701206

Hearing Date:

April 9, 2021

[TENTATIVE] RULING RE:

Defendants figueroa arms apartments, inc., figueroa arms condominium association, inc., lordon enterprises, inc. dba lordon management co., jillian howden, jeremy tijerina, veronica mesias, jan ford, theo chan, and the hutton group’s motion for summary judgment, or, alternatively, summary adjudication

Defendants Figueroa Arms Apartments, Inc., Figueroa Arms Condominium Association, Inc., Lordon Enterprises, Inc. dba Lordon Management Co., Jillian Howden, Jeremy Tijerina, Veronica Mesias, Jan Ford, Theo Chan, and The Hutton Group’s Motion For Summary Adjudication is GRANTED as to the First, Second, Fourth, and Fifth Causes of Action; and DENIED as to the Third, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Causes of Action. Defendants’ Motion for Summary Judgment is DENIED.

Factual Background

This is an action for breach of fiduciary duty and other associated torts. The Third Amended Complaint (“TAC”) alleges as follows. Plaintiff Margaret Jewett (“Jewett”) purchased the right to occupy a unit of Defendant Figueroa Arms Apartments, Inc. (“FAA”) on May 1, 1988. (TAC ¶ 15.) Jewett alleges a history of antagonistic action by the FAA board, including a failure to return Jewett’s security deposit or acknowledge a related agreement (TAC ¶¶ 15–24), a pattern of failure to repair electrical and plumbing necessities (TAC ¶¶ 25–46) which resulted in the constructive eviction of Jewett’s tenant (TAC ¶¶ 65–77), an attempt to prevent Jewett from participating in FAA’s affairs by withholding important governing documents and holding meetings in places not accessible to disabled people (TAC ¶¶ 47–63), and wrongfully converted the cooperative into a condominium (Defendant Figueroa Arms Condominium Association, Inc. (“FACA”)) without her consent or participation. (TAC ¶¶ 78–107.)

procedural history

Jewett filed the original Complaint on July 13, 2016, the First Amended Complaint on May 2, 2017, and the Second Amended Complaint on August 28, 2017. The operative TAC was filed by stipulation on October 17, 2017, alleging 11 causes of action:

  1. Breach of fiduciary duty

  2. Unjust enrichment

  3. Accounting

  4. Unfair business practices

  5. Negligent interference with contractual relations

  6. Negligent misrepresentation

  7. Breach of implied warranty of habitability

  8. Breach of statutory warranty of habitability

  9. Breach of the covenant of quiet enjoyment

  10. Negligence

  11. Declaratory relief (CCP § 1060)

On March 26, 2018, this case was reassigned from Dept. 52 to this Dept. 78.

On March 27, 2018, in Case No. 16K04467 (now consolidated), Jewett filed a First Amended Cross-Complaint (“FACC”) against the same defendants as in her TAC in Case No. BC626801, alleging eleven causes of action:

  1. Breach of written contract

  2. Unfair business practices

  3. Negligent misrepresentation

  4. Violation of Gov. Code § 12927

  5. Violation of Gov. Code § 1940.2

  6. Breach of implied warranty of habitability

  7. Breach of statutory warranty of habitability

  8. Breach of the covenant of quiet enjoyment

  9. Negligence

  10. Declaratory relief (CCP § 1060)

  11. Partition

On July 16, 2018, this Court granted Defendants Margo Salako and Cathy White’s Demurrer to the TAC with leave to amend.

On August 21, 2018, Jewett dismissed Salako and White.

On October 12, 2018, this Court found that Case Nos. BC626801, BC701206 and 16K04467 are related.

On February 8, 2019, Case Nos. BC701206 and 16K04467 were consolidated with Case No. BC626801 as the Lead Case.

On June 13, 2019, Defendants/Cross-Defendants filed an Answer to the FACC.

On August 12, 2019, Defendants/Cross-Defendants filed an Answer to the Complaint.

On September 15, 2020, Defendants filed the instant Motion for Summary Judgment.

On March 22, 2021, Jewett filed an Opposition.

On March 30, 2021, Defendants filed a Reply.

Discussion

  1. OBJECTIONS

Defendants object to various evidence submitted by Jewett in opposition to this Motion. Objections Nos. 1-55 are SUSTAINED.

Jewett objects on various grounds to the Declaration of Pamela Abbott-Moore. However, Jewett’s objections are presented in a procedurally improper manner that prevents the Court’s from effectively ruling on any objections. Accordingly, these objections are OVERRULED.

  1. MOTION FOR SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

If the plaintiff is the moving party, the plaintiff must prove each element of the cause of action entitling the party to judgment on that cause of action.” (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241.)

Neither a moving or responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau, supra, 68 Cal.App.4th at 166.)

Since at least D’Amico v. Board of Medical Examiners (1974) 11 Cal.3rd 11, 21-22, in opposing a summary judgment motion “A party cannot create an issue of fact by a declaration that contradicts his discovery responses” (Shin v. Hahn (2007) 42 Cal.4th 482, 502, fn. 17.) The “Golden Rule” on a motion for summary judgment or summary adjudication is that “if [a fact] is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477, citing United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.)

  1. Preliminary Matters

Jewett argues that Defendants “violate the Meet and Confer statutory mandate.” (Motion at p. 2.) Jewett’s legal authority applies only to Motions for Judgment on the Pleadings and for matters in Federal Court. (Motion at p. 3.) There is no such requirement for the instant Motion. Thus, this argument is without merit.

Jewett also argues that Defendants “attempt to deconsolidate Court-Consolidated” because this Motion for Summary Judgment lists the case number only as the lead case (Case No. BC626801). (Motion at pp. 2, 4.) The Court finds that the oversight of listing only the lead case on the cover page is not an “attempt at unilateral deconsolidation.” (See Motion at p. 5.) The Court declines to decide this Motion on a minor procedural defect.

  1. Substantive Matters – As to All Causes of Action

Defendants’ Motion argues that Jewett cannot establish a claim for each of the eleven causes of action. (Motion at pp. 17-26.) Defendants also argue that several of Plaintiff’s claims are time-barred. (Motion at p. 27.) In Jewett’s Opposition, Jewett’s arguments (other than those discussed above in “Preliminary Matters”) focus entirely on discrediting the Declaration of Pamela Moore, without reference to the substantive arguments going to each cause of action.

An Opposition Memorandum of Points and Authorities must direct the Court to the evidence it seeks to use to oppose a Motion for Summary Judgment: “That the fact could have been found in the filed documents is of no value, because this would have imposed on the trial court the impossible burden of determining both the existence and significance of facts unmentioned by the parties. We will not place on the trial court the burden of conducting a search for facts which counsel failed to bring out, nor can we attribute a level of prescience to the trial court which counsel lacked. Instead, we adhere to the familiar rule that ‘possible theories not fully developed or factually presented to the trial court cannot create a ‘triable issue’ on appeal.’ […] Nothing in the summary judgment statute requires a trial court to become such an advocate for parties resisting summary disposition of their claims.” (Artiglio v. General Electric Co. (1998) 61 Cal.App.4th 830, 842.”

Regardless, a party moving for summary judgment nonetheless has the initial burden of making a prima facie showing that there is no triable issue of material fact. (CCP § 473c(p).)

  1. First Cause of Action – Breach of Fiduciary Duty; Tenth Cause of Action – Negligence

The First Cause of Action in the TAC alleges that the Board Members of Figueroa Arms Apartments, Inc. (“FAA”) (Defendants Bowling, Farzaneh, Howden, Tijerina, Mesias, Ford, and Chan) owed a fiduciary duty to “shareholders” of FAA, including Jewett. (TAC ¶ 112.) It alleges that the Board Members violated their “fiduciary duties by converting FAA to a condominium without regard of the fairness of the transaction to Plaintiff and the other shareholders.” (TAC ¶ 114.) It alleges that the board members converted the FAA “to personally benefit in order to refinance and sell their units to the detriment of Plaintiff and the other shareholders.” (TAC ¶ 114.)

The Tenth Cause of Action similarly alleges that FAA, Figueroa Arms Condominium Association, Inc. (“FACA”), the board members and/or Lordon Management Co. (“Lordon”) owed Jewett a duty as directors of FAA and FACA. (TAC ¶ 197.) It alleges that they breached their duty of care to Jewett when they were negligent in conducting the affairs of FAA and negligently failed to adhere to appropriate conduct required of the Board” including in “unlawfully” converting the coop into a condominium unit. (TAC ¶¶ 198-199.)

Defendants argue that Plaintiff’s claims in these causes of action are premised on the notion that Jewett possessed an “ownership interest” in FAC, similar to a shareholder in a for-profit corporation, but that Plaintiff owned only a share in a “stock cooperative,” which does not provide her with a “share” of FAA. (Motion at pp. 17-18.)

Defendants present evidence that FAA “is a stock cooperative form of common interest development[.]” (UMF ¶ 1.) Further, the FAA’s bylaws provide that “Neither the Corporation, nor the Board, nor any member thereof . . . nor the officers of the Board, nor any of them, nor the management agent, nor the manager . . . shall be liable for any failure to provide any service or perform any duty, function or responsibility designated herein to be performed by them, or for injury and/or damage to persons or property in the project, or resulting from electricity, water, mold, rain, dust or sand which may leak or flow from outside of any Unit or from any pipes, drains, conduits, appliances, or requirement or from any other place or cause, unless caused by the gross negligence of the Corporation, its Board, Officers, the manager, or his staff.” (UMF ¶ 4.) Additionally, Defendants present evidence that “FAA’s Bylaws provide that the Board may terminate the membership of a member if FAA prevails in an unlawful detainer action against the Member for default in the failure to pay assessments, as well as for failure to execute a new occupancy agreement,” and that FAA “obtained a judgment in an unlawful detainer against Plaintiff on June 15, 2018.” (UMF ¶ 23.)

The Court finds that Defendants have presented sufficient evidence of a prima facie case to show that Jewett cannot establish either that Defendants owe/owed a duty to Jewett with regards to the conversion from co-operative to condominium, or that she has been harmed in any way. In a stock cooperative, the property is owned by the cooperation and merely grants a right of exclusive occupancy to the “shareholders. (Civil Code § 4190.)

However, the Tenth Cause of Action also alleges that “Defendants, and each of them also breached their duty of care as they repeatedly failed to maintain FAA and Plaintiffs Unit in a habitable condition.” (TAC ¶ 200.) Defendants do not address this allegations in their motion. Accordingly, summary adjudication of the Tenth Cause of Action is not available for Defendants. A motion for summary judgment/adjudication must completely dispose of a cause of a cause of action pursuant to Code of Civil Procedure section 473c, subdivision (f)(1). (Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1259.)

In Opposition, Jewett does not address the arguments made to either cause of action.

Accordingly, the Motion for Summary Adjudication of the First Cause of Action is GRANTED. The Motion for Summary Adjudication of the Tenth Cause of Action is DENIED.

  1. Second Cause of Action – Unjust Enrichment

The Second Cause of Action alleges “As a result of Defendants’ pervasive wrongful conduct described above, Defendants have been unjustly enriched at the expense of Plaintiff in the form of unjustified earnings and income as a result of the conversion of FAA to a condominium.” (TAC ¶ 126.)

First, California does not recognize unjust enrichment as a separate cause of action. (Castillo v. Toll Bros., Inc. (2011) 197 Cal.App.4th 1172, 1210.) Second, Defendants present sufficient argument and evidence to establish a prima facie case that Jewett cannot establish that Defendants were unjustly enriched by the conversion to condominiums. (Motion at pp. 20-21; UMF ¶ 27.)

In Opposition, Jewett does not address the arguments made to this cause of action.

Accordingly, the Motion for Summary Adjudication of the Second Cause of Action is GRANTED.

  1. Third Cause of Action – Accounting; Eleventh Cause of Action – Declaratory Relief

The Third Cause of Action alleges that “Defendants negligently failed to provide Plaintiff with an accurate accounting of how FAA's budget was being allocated and where the assets owned by FAA were.” (TAC ¶ 131.) The Eleventh Cause of Action seeks a judicial determination regarding Jewett’s current rights in FAA. (TAC ¶ 207.)

Defendants argue only that “Plaintiff’s membership interest in FAA has now been terminated. (See UMF 10.) As a result, Plaintiff no longer has standing to maintain any claim for accounting or declaratory relief.” (Motion at pp. 26-27.)

Defendants do not provide any legal authority to support to their claim that Jewett must be a current member of FAA to have standing to bring these claims for accounting and declaratory relief.

Thus, Defendants have not established a sufficient prima facie case against these causes of action.

In Opposition, Jewett does not address the arguments made to this cause of action.

Accordingly, the Motion for Summary Adjudication of the Third and Eleventh Causes of Action are DENIED.

  1. Fourth Cause of Action – Unfair Business Practices (B&P § 17200)

The Fourth Cause of Action alleges that Defendants engaged in various unlawful, unfair, and/or fraudulent business practices, including “engaging in fraudulent acts and practices designed to oust the longest occupants/shareholders of FAA; [and] depriving Plaintiff of her rights by denying her information to which she is legally entitled to […]” among others. (TAC ¶ 137.)

Defendants argue that the Fourth Cause of Action does not apply because a homeowner’s association is not a “business” for purposes of the UCL. (Motion at pp. 21-22.) Defendants cite That v. Alders Maintenance Association (2012) 206 Cal.App.4th 1419. In That, the Court held that a homeowner’s association was not a business under the UCL, because “The UCL's purpose is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services,” and “An association does not participate as a business in the commercial market, much less compete in it.” (That v. Alders Maintenance Assn. (2012) 206 Cal.App.4th 1419, 1427.) The Court reserved an exception that “If, for example, an association decided to sell products or services that are strictly voluntary purchases for members or nonmembers, it might be liable for such acts under the UCL.” (Id.) However, the Court ultimately concluded that “An association, operating under its governing documents to maintain its premises and conduct required proceedings, possesses none of the relevant features the UCL was intended to address.” (Id.)

In this case, the Fourth Cause of Action involves actions by FAA regarding itself in converting from a co-operative ownership model to a condominium ownership model. There are no allegations that FAA was selling good or services, or otherwise engaging in business beyond its own governing documents and operating within the co-op/condominiums.

In Opposition, Jewett does not address the arguments made to this cause of action.

Accordingly, the Motion for Summary Adjudication of the Fourth Cause of Action is GRANTED.

  1. Fifth Cause of Action – Negligent Interference with Contractual Relations

Defendants argue that this cause of action does not exist in California and must be dismissed. (Motion at pp. 22-23.)

The Court agrees. “In California there is no cause of action for negligent interference with contractual relations.” (Davis v. Nadrich (2009) 174 Cal.App.4th 1, 9, as modified (May 21, 2009).)

In Opposition, Jewett does not address the arguments made to this cause of action.

Accordingly, the Motion for Summary Adjudication of the Fifth Cause of Action is GRANTED.

  1. Sixth Cause of Action – Negligent Misrepresentation

The Sixth Cause of Action alleges that Defendants made various misrepresentations to Jewett including:

Defendants argue that “Plaintiff’s TAC does not identify any specific statements that constitute the at-issue negligent misrepresentations, but instead generally accuses Defendants of making negligent misrepresentations as to essentially all of the foregoing “wrongful” conduct.” (Motion at p. 26.) This is argument does not establish a prima facie case for summary adjudication. Even if this was a demurrer there is not a heightened pleading standard for negligence.

Defendants also argue that “Plaintiff cannot establish any resulting harm from anything to do with the conversion, the alleged security deposit agreement, supposed “interference” with her tenant, or the “habitability” issues.” (Motion at p. 16.) However, Defendants do not direct the Court to any evidence to support their argument to the contrary. Further, the separate statement presents no evidence going to habitability issues, such as those alleged in this cause of action..

Thus, Defendants have not established a sufficient prima facie case against this negligent misrepresentation cause of action.

In Opposition, Jewett does not address the arguments made to this cause of action.

Accordingly, the Motion for Summary Adjudication of the Sixth Cause of Action is DENIED.

  1. Seventh Cause of Action – Breach of Implied Warranty of Habitability; Eighth Cause of Action – Breach of Statutory Warranty of Habitability

Defendants argue that they owed no duty of habitability with regards to Jewett’s individual unit because while “a common interest development may owe a warranty of habitability as to common areas, there is no support for the contention that the warranty extends to a person’s separate interest.” (Motion at pp. 23-24.)

However, Defendants do not present any evidence to support this argument or establish that Jewett’s residential unit was a type excluded from the protections of the warranties of habitability. Defendants earlier described a shareholder (such as Jewett) in a stock cooperative as a lessee in a landlord-tenant type relationship. (Motion at p. 18.) This is supported by caselaw. (See, e.g., Sun Terrace Manor v. Municipal Court (1973) 33 Cal.App.3d 739, 743.) The implied warranty of habitability “recognizes ‘the realities of the modern urban landlord-tenant relationship’ and imposes upon the landlord the obligation to maintain leased dwellings in a habitable condition throughout the term of the lease.” (Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1204.)

Defendants have not established a sufficient prima facie case that the implied and/or statutory warranties of habitability do not apply to the relationship between Defendants and Jewett (and Jewett’s residential unit).

In Opposition, Jewett does not address the arguments made to this cause of action.

Accordingly, the Motion for Summary Adjudication of the Seventh and Eight Causes of Action are DENIED.

  1. Ninth Cause of Action – Covenant of Quiet Enjoyment

The Ninth Cause of Action alleges that “Defendants FAA, FACA, the Board Member Defendants and/or LORDON have a duty to abide by the implied covenant of quiet enjoyment. Defendants, and each of them, breached this duty and the implied covenant by their conduct as described herein, including but not limited to, failing to correct the substandard conditions such as the electrical deficiencies; plumbing deficiencies; water leaks; floors and walls containing mold and mildew; insect infestations; pest infestations; security and safety deficiencies; and loss of use of the premises for various period of time.” (TAC ¶ 182.)

A violation of the covenant of quiet enjoyment can be established where there is “Any interference by the landlord that deprives the tenant of the beneficial enjoyment of the premises or renders the premises unfit for the purposes for which they are let amounts to a constructive eviction if the tenant so elects and vacates within a reasonable time.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299–1300.)

Defendants argue that the Ninth Cause of Action fails because a necessary element is ‘actual possession,’ and “Plaintiff’s claim is that her subtenants were allegedly denied quiet enjoyment. But Defendants never had any lease with Plaintiff’s sub-tenants.” (Motion at p. 24.)

However, Defendants present no evidence that they did not have a lease with any of Plaintiff’s subtenants or that Plaintiff’s right to quiet enjoyment of the premises was lost when subtenants leased property.. The evidence presented in Defendants’ separate statement does not address this issue, but merely repeats the same evidence presented for all causes of action. “[I]if [a fact] is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson, supra, 131 Cal.App.4th at 1477.) Accordingly, Defendants have not established a sufficient prima facie case for this cause of action.

In Opposition, Jewett does not address the arguments made to this cause of action.

Accordingly, the Motion for Summary Adjudication of the Ninth Cause of Action is DENIED.

DATED: April 9, 2021 ________________________________

Hon. Robert Draper

Judge of the Superior Court

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