This case was last updated from Los Angeles County Superior Courts on 06/10/2019 at 08:24:09 (UTC).

BILLY RAY GALLION VS MARK G. RINGO, ET AL.,

Case Summary

On 02/22/2017 BILLY RAY GALLION filed a Property - Wrongful Eviction lawsuit against MARK G RINGO, . This case was filed in Los Angeles County Superior Courts, Santa Monica Courthouse located in Los Angeles, California. The Judge overseeing this case is NANCY L. NEWMAN. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7112

  • Filing Date:

    02/22/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Wrongful Eviction

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

NANCY L. NEWMAN

 

Party Details

Plaintiff

GALLION BILLY RAY

Defendants

RINGO MARK G.

FIFTEEN ZERO EIGHT TWELFTH STREET HOMEOWN

RESNIK DAVID

ZYGOTE LLC

LIWNICZ REGINA

LIWNICZ SARAH

BLN PROPERTY MANAGEMENT INC.

MARK G. RINGO TRUST

Attorney/Law Firm Details

Plaintiff Attorneys

WEINSTEIN ZEV Y.

MILLER DELANEY

Defendant Attorneys

HASHEMI BABAK

GIBBS GIDEN LOCHER TURNER SENET & WITTBRO

LUSSIER KEVIN R.

CARPENTER GREGORY J.

HASHEMI BABAK ESQ.

HOOK CHRISTOPHER GEORGE

HANGER STEINBERG SHAPIRO & ASH

 

Court Documents

Complaint

2/22/2017: Complaint

Civil Case Cover Sheet

2/22/2017: Civil Case Cover Sheet

Summons

2/22/2017: Summons

Unknown

4/19/2017: Unknown

Unknown

4/19/2017: Unknown

Unknown

4/19/2017: Unknown

Unknown

4/19/2017: Unknown

Answer

4/28/2017: Answer

Unknown

5/9/2017: Unknown

Answer

5/9/2017: Answer

Unknown

5/9/2017: Unknown

Summons

5/9/2017: Summons

Unknown

5/24/2017: Unknown

Unknown

5/24/2017: Unknown

Unknown

5/24/2017: Unknown

Proof of Service by Mail

5/24/2017: Proof of Service by Mail

Unknown

5/31/2017: Unknown

Case Management Statement

6/1/2017: Case Management Statement

72 More Documents Available

 

Docket Entries

  • 06/04/2019
  • Docketat 08:30 AM in Department P; Hearing on Motion to Compel (Motion to Compel Independent Medical Examination) - Held - Motion Granted

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  • 06/04/2019
  • Docketat 08:30 AM in Department P; Case Management Conference - Held - Continued

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  • 06/04/2019
  • DocketMinute Order ( (Case Management Conference; Hearing on Defendants Regina Liwn...)); Filed by Clerk

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  • 05/28/2019
  • DocketStatus Report (Joint Status Report); Filed by BILLY RAY GALLION (Plaintiff)

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  • 05/23/2019
  • DocketCase Management Statement; Filed by DAVID RESNIK (Defendant)

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  • 05/22/2019
  • Docketat 08:30 AM in Department P; Hearing on Motion to Compel (Motion to Compel Independent Medical Examination) - Not Held - Continued - Party's Motion

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  • 05/10/2019
  • DocketNotice of Ruling; Filed by REGINA LIWNICZ (Defendant); SARAH LIWNICZ (Defendant)

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  • 05/09/2019
  • Docketat 08:30 AM in Department P; Hearing on Ex Parte Application (FOR AN ORDER CONTINUING THE HEARING ON DEFENDANTS REGINA LIWNICZ AND SARAH LIWNICZ?S MOTION TO COMPEL PLAINTIFF TO SUBMIT TO PAINFULL AND INTRUSIVE PHSYCIAL TESTING AND EXAMINATION) - Held

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  • 05/09/2019
  • Docketat 08:30 AM in Department P; Hearing on Ex Parte Application (FOR AN ORDER SPECIALLY SETTING DEFENDANT?S MOTION FOR SUMMARY JUDGMENT) - Held

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  • 05/09/2019
  • Docketat 08:30 AM in Department P; Hearing on Ex Parte Application (FOR AN ORDER SPECIALLY SETTING DEFENDANT?S MOTION FOR SUMMARY JUDGMENT) - Held

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142 More Docket Entries
  • 04/19/2017
  • DocketProof-Service/Summons; Filed by BILLY RAY GALLION (Plaintiff)

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  • 04/19/2017
  • DocketProof-Service/Summons; Filed by BILLY RAY GALLION (Plaintiff)

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  • 04/19/2017
  • DocketProof-Service/Summons; Filed by BILLY RAY GALLION (Plaintiff)

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  • 04/19/2017
  • DocketProof-Service/Summons; Filed by BILLY RAY GALLION (Plaintiff)

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  • 04/19/2017
  • DocketProof-Service/Summons; Filed by Attorney for Plaintiff

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  • 02/22/2017
  • DocketComplaint Filed

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  • 02/22/2017
  • DocketSummons Filed; Filed by Attorney for Plaintiff

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  • 02/22/2017
  • DocketSummons; Filed by Plaintiff

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  • 02/22/2017
  • DocketComplaint; Filed by BILLY RAY GALLION (Plaintiff)

    [+] Read More [-] Read Less
  • 02/22/2017
  • DocketCivil Case Cover Sheet

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Tentative Rulings

Case Number: ****7112 Hearing Date: June 30, 2022 Dept: 207

Superior Court of California

County of Los Angeles

Beverly Hills Courthouse | Department 207

BILLY RAY GALLION,

Plaintiff,

v.

MARK G. RINGO, et al.

Defendants.

Case No.: ****7112

Hearing Date: 6/30/22

Trial Date: 1/4/23

[TENTATIVE] RULING RE:

Defendant Christopher Ro’s Motion to Dismiss

Background

Plaintiff Billy Ray Gallion ("Plaintiff") alleges that he was subjected to uninhabitable living conditions while residing in Unit 11 (the “Subject Unit") at 1508 12th St., Santa Monica, California 90401 (the “Property”). Plaintiff alleges that the Subject Unit was delivered and/or developed dangerous and hazardous conditions, and that he sustained injuries as a result of the alleged dangerous conditions. The Subject Unit represents one of eleven units at the Property. The remaining ten units at the Property together form a common interest development subject to the Davis-Stirling Common Interest Development Act (“Davis-Sterling Act”) (Civ. Code, 4000 et seq.). The development is governed by the Fifteen Zero Eight Twelfth Street Homeowners Association (“HOA”) and is subject to recorded covenants, conditions, and restrictions (“CC&R's”). The daily operations of the HOA were conducted by BLN Property Management, Inc. (“BLN”), a management company.

On February 22, 2017, Plaintiff filed this action’s Complaint against several defendants, including Does 1-50. Plaintiff’s operative pleading in this action is the Fifth Amended Complaint, filed on October 12, 2021. Plaintiff amended the Complaint on September 26, 2019, to substitute Defendant Christopher Ro (“Defendant” or “Ro”) for Doe 7. On April 1, 2022, Plaintiff filed a proof of service establishing Defendant was personally served with process on March 17, 2022.

Defendant specially appears to bring this motion to dismiss Plaintiff’s complaint for failure to prosecute within the time limits set forth in the Code of Civil Procedure. Defendant also contends Plaintiff’s claims against him are barred by the statute of limitations.

Legal Standard

“Code of Civil Procedure section 583.210, subdivision (a) provides that ‘[t]he summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision an action is commenced at the time the complaint is filed.’ Failure to adhere to the time constraints of section 583.210 of the Code of Civil Procedure will result in an action’s dismissal, unless a plaintiff qualifies for an extension pursuant to Code of Civil Procedure section 583.240.” (Damjanovic v. Ambrose (1992) 3 Cal.App.4th 503, 508 [citations omitted].)

Code Civ. Proc. 583.240 provides as follows:

In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed:

(a) The defendant was not amenable to the process of the court.

(b) The prosecution of the action or proceedings in the action was stayed and the stay affected service.

(c) The validity of service was the subject of litigation by the parties.

(d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision.

“The purpose of Code of Civil Procedure section 583.210 is to give a defendant timely notice of the action so that the defendant can take adequate steps to preserve evidence. ‘The excuse of impossibility, impracticability, or futility should be strictly construed’ to foster this purpose. In contrast, the excuse should be liberally construed in connection with the time limits for bringing a case to trial. The difference in the construction of the excuse in the two situations rests on the recognition that ordinarily a plaintiff exercising due diligence is in control of the time of service of summons, while a plaintiff is not ordinarily in control of bringing a case to trial.” (Damjanovic, supra, 3 Cal.App.4th at 510 [citations omitted].)

“It is established that, as to a party named in the original complaint, the action commences for purposes of section 581a[1] on the date of the filing of the complaint. The same rule is appropriate where the defendant was named in the original complaint by fictitious name.” (Warren v. Atchison (1971) 19 Cal.App.3d 24, 38.)

Analysis

Defendant argues the three-year period set out in section 583.210 began running with the filing of Plaintiff’s original Complaint on February 22, 2017, naming Doe 7 as a defendant. Defendant contends he was not served in this action until he was personally served on March 17, 2022, more than five years after the filing of Plaintiff’s original Complaint and more than two years after the three-year time period in section 583.210 had already expired.

Plaintiff concedes the three-year limit in section 583.210 began running with the filing of the original Complaint and does not claim any of the extensions set forth in section 583.240 apply here. Rather, argues Defendant was timely served with process when Plaintiff’s counsel served a copy of the September 26, 2019, amendment substituting Defendant for Doe 7 on counsel for the HOA. Plaintiff argues the HOA should be deemed Defendant’s authorized agent for service of process, and the HOA’s counsel should be deemed the HOA’s authorized agent for service of process. Thus, according to Plaintiff, service on Defendant was effectuated when the amendment naming Defendant was mailed to the HOA’s counsel on September 27, 2019, which was within the three-year period set forth in section 583.210. Alternatively, Plaintiff contends he “substantially complied with service requirements” by mailing a copy of the amendment to the HOA’s counsel, making dismissal pursuant to section 583.210 improper. (Opposition at 6.)

The Court rejects Plaintiff’s argument for several reasons. First, Plaintiff has offered the Court no authority showing the HOA can be deemed Defendant’s authorized agent for the receipt of service of process. Plaintiff argues authorization can be inferred here as the HOA has a “fiduciary relationship with” the owners of the units. (Opposition at 4.) But Plaintiff does not provide this Court with any authority for the proposition that a defendant may be served with process through substitute service on any individual or entity owing that defendant a fiduciary duty. Indeed, attorneys owe a fiduciary relationship to their clients (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6Cal.3d 176, 189), yet a defendant may only be served by substitute service on an attorney where that attorney “has been expressly authorized to accept service” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389).

Plaintiff argues such authorization can be inferred here because the CC&Rs give the HOA the power to “bring all actions at law” and “delegates management, control and responsibility of the common areas of the subject property to the HOA.” (Opposition at 4.) However, the fact that Defendant and owners delegated specific and limited powers and obligations to the HOA gives rise to the inference that they expressly reserved other power. If the owners truly intended to authorize the HOA to accept service of process for every owner, they could have done so, for example, by also giving the HOA the power to defend litigation on the owner’s behalf. The only inference to be drawn from this language is that the HOA was not authorized to accept service of process on behalf of all owners.

Further, Plaintiff’s mailing of a copy of the amendment to the HOA, without more, fails to comply with the service requirements imposed by the Code of Civil Procedure. To effectuate service on Defendant, Plaintiff was required to serve him with copies of the operative complaint and summons. (C.C.P. 415.20.) Plaintiff claims the amendment naming Defendant was served on the HOA’s counsel, but does not claim this purported mail service included copies of these required documents.

Indeed, it appears Plaintiff himself did not believe mailing the amendment to counsel for the HOA was meant to be substitute service on Defendant. For example, under Code Civ. Proc. 417.30, a plaintiff must file a proof of service of the summons. Plaintiff filed no such proof of service following the mailing of a copy of the amendment to counsel for the HOA on September 27, 2019.[2] The only proof of service filed by Plaintiff with respect to Defendant is the proof filed on April 1, 2022, attesting to personal service on Defendant on March 17, 2022.

Plaintiff’s Opposition also indicates personal service was attempted on Defendant in November and December 2019. If Plaintiff truly considered the September 27, 2019, mailing to counsel for the HOA to be sufficient and proper service on Defendant, there would be no need to subsequently attempt personal service on Defendant 15 times between November and December 2019. Moreover, this purported service by mailing before personal service was attempted runs afoul of Code Civ. Proc. 415.20, which authorizes service by mail only where “a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served.” The Court also notes Plaintiff did not move for entry of default when Defendant did not appear following this mailing to the HOA’s counsel.

Accordingly, the Court finds Plaintiff failed to effectuate proper service on Defendant within the time period specified by Code Civ. Proc. 583.210.

For similar reasons, the Court declines to find Plaintiff “substantially complied” with the service requirements imposed by the Code of Civil Procedure. As set forth above, Plaintiff’s mailing of a copy of the amendment to the HOA’s counsel failed to comply with service requirements regarding who was served, how service may be effectuated, and the filing of a proof of service establishing the service requirements were complied with. Plaintiff’s contention that he substantially complied with the service requirements is based entirely on Plaintiff’s unsupported assertion that mailing the amendment to counsel for the HOA “sufficiently put Defendant Ro on notice of this action” because “it is unfathomable that Defendant Ro would not have had notice of this action until personal service was formally effectuated.” (Opposition at 6.) However, even assuming Defendant acquired actual notice of Plaintiff’s suit before the expiration of the three-year period in section 583.20, courts have rejected the argument that actual notice is sufficient to excuse compliance with the statutory requirements for service. “Actual notice of the action alone, however, is not a substitute for proper service and is not sufficient to confer jurisdiction.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 392.) “[N]o California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414.)

Furthermore, Plaintiff’s reliance on Davis v. Allstate Ins. Co. (1989) 217 Cal.App.3d 1229 is misplaced. In Davis plaintiff served defendant with the summons and complaint just days before the expiration of the three-year period in section 583.20. However, plaintiff inadvertently served the second amended complaint on defendant, not the operative third amended complaint. The correct pleading was ultimately served on defendant after the three-year period had expired. (Id. at 1231.) The Court in reference to plaintiff stated “a reasonable attempt has been made to comply” with the statutory service requirements, and noted the similarity between the second and third amended complaints in holding plaintiff had substantially complied with the statute. (Id. at 1232-1234.)

The facts here are readily distinguishable. Here, it appears Plaintiff amended his complaint to substitute Defendant for Doe 7 on September 26, 2019, and the following day mailed courtesy copies of that and other amendments to all parties, including counsel for the HOA. Plaintiff then attempted to personally serve Defendant with process on 15 occasions in November and December 2019. Plaintiff then abandoned his attempts to serve Defendant until he discovered in January 2022 that Defendant’s unit had been previously flooded with water. Having determined Defendant may have pertinent information, Plaintiff decided to revive his efforts to serve Defendant, resulting in personal service on Defendant in March 2022. This is a far cry from the inadvertent and non-substantive error in Davis. At worst, Plaintiff made a strategic decision to abandon his attempts to serve Defendant, which he later came to regret. At best, Plaintiff served counsel for an unauthorized agent of Defendant through unauthorized means without including required documents or complying with proof of service requirements. In either case, Plaintiff’s non-compliance with the statutory requirements is substantial and extensive, making Davis inapplicable.

The Court finds Plaintiff has not substantially complied with the statutory requirements for service on Defendant. Accordingly, the Court finds Plaintiff did not serve Defendant within the three-year period required by Code Civ. Proc. 583.210, and Defendant’s motion to dismiss is GRANTED. As the Court has found dismissal proper pursuant to the mandatory requirements of section 583.210, it need not determine whether Plaintiff’s suit against Defendant is otherwise barred by the statute of limitations or suitable for discretionary dismissal pursuant to Code Civ. Proc. 583.420, and declines to do so.

Conclusion

Defendant Christopher Ro’s motion to dismiss is GRANTED. Moving party to give notice.

Dated: June 23, 2022

Helen Zukin

Judge of the Superior Court


[1] Code Civ. Proc. 583.210 was formerly codified at Code Civ. Proc. 581a.

[2] It is unclear if a proof of service documenting this purported mail service even exists. No such proof was separately filed with the Court or included as an exhibit in Plaintiff’s opposition.



Case Number: ****7112 Hearing Date: June 23, 2022 Dept: 207

Superior Court of California

County of Los Angeles

Beverly Hills Courthouse | Department 207

BILLY RAY GALLION,

Plaintiff,

v.

MARK G. RINGO, et al.

Defendants.

Case No.: ****7112

Hearing Date: 6/23/22

Trial Date: 1/4/23

[TENTATIVE] RULING RE:

Defendant Christopher Ro’s Motion to Dismiss

Background

Plaintiff Billy Ray Gallion ("Plaintiff") alleges that he was subjected to uninhabitable living conditions while residing in Unit 11 (the “Subject Unit") at 1508 12th St., Santa Monica, California 90401 (the “Property”). Plaintiff alleges that the Subject Unit was delivered and/or developed dangerous and hazardous conditions, and that he sustained injuries as a result of the alleged dangerous conditions. The Subject Unit represents one of eleven units at the Property. The remaining ten units at the Property together form a common interest development subject to the Davis-Stirling Common Interest Development Act (“Davis-Sterling Act”) (Civ. Code, 4000 et seq.). The development is governed by the Fifteen Zero Eight Twelfth Street Homeowners Association (“HOA”) and is subject to recorded covenants, conditions, and restrictions (“CC&R's”). The daily operations of the HOA were conducted by BLN Property Management, Inc. (“BLN”), a management company.

On February 22, 2017, Plaintiff filed this action’s Complaint against several defendants, including Does 1-50. Plaintiff’s operative pleading in this action is the Fifth Amended Complaint, filed on October 12, 2021. Plaintiff amended the Complaint on September 26, 2019, to substitute Defendant Christopher Ro (“Defendant” or “Ro”) for Doe 7. On April 1, 2022, Plaintiff filed a proof of service establishing Defendant was personally served with process on March 17, 2022.

Defendant specially appears to bring this motion to dismiss Plaintiff’s complaint for failure to prosecute within the time limits set forth in the Code of Civil Procedure. Defendant also contends Plaintiff’s claims against him are barred by the statute of limitations.

Legal Standard

“Code of Civil Procedure section 583.210, subdivision (a) provides that ‘[t]he summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision an action is commenced at the time the complaint is filed.’ Failure to adhere to the time constraints of section 583.210 of the Code of Civil Procedure will result in an action’s dismissal, unless a plaintiff qualifies for an extension pursuant to Code of Civil Procedure section 583.240.” (Damjanovic v. Ambrose (1992) 3 Cal.App.4th 503, 508 [citations omitted].)

Code Civ. Proc. 583.240 provides as follows:

In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed:

(a) The defendant was not amenable to the process of the court.

(b) The prosecution of the action or proceedings in the action was stayed and the stay affected service.

(c) The validity of service was the subject of litigation by the parties.

(d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision.

“The purpose of Code of Civil Procedure section 583.210 is to give a defendant timely notice of the action so that the defendant can take adequate steps to preserve evidence. ‘The excuse of impossibility, impracticability, or futility should be strictly construed’ to foster this purpose. In contrast, the excuse should be liberally construed in connection with the time limits for bringing a case to trial. The difference in the construction of the excuse in the two situations rests on the recognition that ordinarily a plaintiff exercising due diligence is in control of the time of service of summons, while a plaintiff is not ordinarily in control of bringing a case to trial.” (Damjanovic, supra, 3 Cal.App.4th at 510 [citations omitted].)

“It is established that, as to a party named in the original complaint, the action commences for purposes of section 581a[1] on the date of the filing of the complaint. The same rule is appropriate where the defendant was named in the original complaint by fictitious name.” (Warren v. Atchison (1971) 19 Cal.App.3d 24, 38.)

Analysis

Defendant argues the three-year period set out in section 583.210 began running with the filing of Plaintiff’s original Complaint on February 22, 2017, naming Doe 7 as a defendant. Defendant contends he was not served in this action until he was personally served on March 17, 2022, more than five years after the filing of Plaintiff’s original Complaint and more than two years after the three-year time period in section 583.210 had already expired.

Plaintiff concedes the three-year limit in section 583.210 began running with the filing of the original Complaint and does not claim any of the extensions set forth in section 583.240 apply here. Rather, argues Defendant was timely served with process when Plaintiff’s counsel served a copy of the September 26, 2019, amendment substituting Defendant for Doe 7 on counsel for the HOA. Plaintiff argues the HOA should be deemed Defendant’s authorized agent for service of process, and the HOA’s counsel should be deemed the HOA’s authorized agent for service of process. Thus, according to Plaintiff, service on Defendant was effectuated when the amendment naming Defendant was mailed to the HOA’s counsel on September 27, 2019, which was within the three-year period set forth in section 583.210. Alternatively, Plaintiff contends he “substantially complied with service requirements” by mailing a copy of the amendment to the HOA’s counsel, making dismissal pursuant to section 583.210 improper. (Opposition at 6.)

The Court rejects Plaintiff’s argument for several reasons. First, Plaintiff has offered the Court no authority showing the HOA can be deemed Defendant’s authorized agent for the receipt of service of process. Plaintiff argues authorization can be inferred here as the HOA has a “fiduciary relationship with” the owners of the units. (Opposition at 4.) But Plaintiff does not provide this Court with any authority for the proposition that a defendant may be served with process through substitute service on any individual or entity owing that defendant a fiduciary duty. Indeed, attorneys owe a fiduciary relationship to their clients (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6Cal.3d 176, 189), yet a defendant may only be served by substitute service on an attorney where that attorney “has been expressly authorized to accept service” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389).

Plaintiff argues such authorization can be inferred here because the CC&Rs give the HOA the power to “bring all actions at law” and “delegates management, control and responsibility of the common areas of the subject property to the HOA.” (Opposition at 4.) However, the fact that Defendant and owners delegated specific and limited powers and obligations to the HOA gives rise to the inference that they expressly reserved other power. If the owners truly intended to authorize the HOA to accept service of process for every owner, they could have done so, for example, by also giving the HOA the power to defend litigation on the owner’s behalf. The only inference to be drawn from this language is that the HOA was not authorized to accept service of process on behalf of all owners.

Further, Plaintiff’s mailing of a copy of the amendment to the HOA, without more, fails to comply with the service requirements imposed by the Code of Civil Procedure. To effectuate service on Defendant, Plaintiff was required to serve him with copies of the operative complaint and summons. (C.C.P. 415.20.) Plaintiff claims the amendment naming Defendant was served on the HOA’s counsel, but does not claim this purported mail service included copies of these required documents.

Indeed, it appears Plaintiff himself did not believe mailing the amendment to counsel for the HOA was meant to be substitute service on Defendant. For example, under Code Civ. Proc. 417.30, a plaintiff must file a proof of service of the summons. Plaintiff filed no such proof of service following the mailing of a copy of the amendment to counsel for the HOA on September 27, 2019.[2] The only proof of service filed by Plaintiff with respect to Defendant is the proof filed on April 1, 2022, attesting to personal service on Defendant on March 17, 2022.

Plaintiff’s Opposition also indicates personal service was attempted on Defendant in November and December 2019. If Plaintiff truly considered the September 27, 2019, mailing to counsel for the HOA to be sufficient and proper service on Defendant, there would be no need to subsequently attempt personal service on Defendant 15 times between November and December 2019. Moreover, this purported service by mailing before personal service was attempted runs afoul of Code Civ. Proc. 415.20, which authorizes service by mail only where “a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served.” The Court also notes Plaintiff did not move for entry of default when Defendant did not appear following this mailing to the HOA’s counsel.

Accordingly, the Court finds Plaintiff failed to effectuate proper service on Defendant within the time period specified by Code Civ. Proc. 583.210.

For similar reasons, the Court declines to find Plaintiff “substantially complied” with the service requirements imposed by the Code of Civil Procedure. As set forth above, Plaintiff’s mailing of a copy of the amendment to the HOA’s counsel failed to comply with service requirements regarding who was served, how service may be effectuated, and the filing of a proof of service establishing the service requirements were complied with. Plaintiff’s contention that he substantially complied with the service requirements is based entirely on Plaintiff’s unsupported assertion that mailing the amendment to counsel for the HOA “sufficiently put Defendant Ro on notice of this action” because “it is unfathomable that Defendant Ro would not have had notice of this action until personal service was formally effectuated.” (Opposition at 6.) However, even assuming Defendant acquired actual notice of Plaintiff’s suit before the expiration of the three-year period in section 583.20, courts have rejected the argument that actual notice is sufficient to excuse compliance with the statutory requirements for service. “Actual notice of the action alone, however, is not a substitute for proper service and is not sufficient to confer jurisdiction.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 392.) “[N]o California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414.)

Furthermore, Plaintiff’s reliance on Davis v. Allstate Ins. Co. (1989) 217 Cal.App.3d 1229 is misplaced. In Davis plaintiff served defendant with the summons and complaint just days before the expiration of the three-year period in section 583.20. However, plaintiff inadvertently served the second amended complaint on defendant, not the operative third amended complaint. The correct pleading was ultimately served on defendant after the three-year period had expired. (Id. at 1231.) The Court in reference to plaintiff stated “a reasonable attempt has been made to comply” with the statutory service requirements, and noted the similarity between the second and third amended complaints in holding plaintiff had substantially complied with the statute. (Id. at 1232-1234.)

The facts here are readily distinguishable. Here, it appears Plaintiff amended his complaint to substitute Defendant for Doe 7 on September 26, 2019, and the following day mailed courtesy copies of that and other amendments to all parties, including counsel for the HOA. Plaintiff then attempted to personally serve Defendant with process on 15 occasions in November and December 2019. Plaintiff then abandoned his attempts to serve Defendant until he discovered in January 2022 that Defendant’s unit had been previously flooded with water. Having determined Defendant may have pertinent information, Plaintiff decided to revive his efforts to serve Defendant, resulting in personal service on Defendant in March 2022. This is a far cry from the inadvertent and non-substantive error in Davis. At worst, Plaintiff made a strategic decision to abandon his attempts to serve Defendant, which he later came to regret. At best, Plaintiff served counsel for an unauthorized agent of Defendant through unauthorized means without including required documents or complying with proof of service requirements. In either case, Plaintiff’s non-compliance with the statutory requirements is substantial and extensive, making Davis inapplicable.

The Court finds Plaintiff has not substantially complied with the statutory requirements for service on Defendant. Accordingly, the Court finds Plaintiff did not serve Defendant within the three-year period required by Code Civ. Proc. 583.210, and Defendant’s motion to dismiss is GRANTED. As the Court has found dismissal proper pursuant to the mandatory requirements of section 583.210, it need not determine whether Plaintiff’s suit against Defendant is otherwise barred by the statute of limitations or suitable for discretionary dismissal pursuant to Code Civ. Proc. 583.420, and declines to do so.

Conclusion

Defendant Christopher Ro’s motion to dismiss is GRANTED. Moving party to give notice.

Dated: June 23, 2022

Helen Zukin

Judge of the Superior Court


[1] Code Civ. Proc. 583.210 was formerly codified at Code Civ. Proc. 581a.

[2] It is unclear if a proof of service documenting this purported mail service even exists. No such proof was separately filed with the Court or included as an exhibit in Plaintiff’s opposition.



Case Number: ****7112 Hearing Date: May 20, 2022 Dept: 207

Superior Court of California

County of Los Angeles

Beverly Hills Courthouse | Department 207

BILLY RAY GALLION,

Plaintiff,

v.

MARK G. RINGO, an individual and as Trustee of the Mark G. Ringo Trust, et al.,

Defendants.

Case No.: ****7112

Hearing Date 05/20/2022

Trial Date: 7/5/22

[TENTATIVE] RULING RE:

Defendant Constantinos Georgiadis’ Motion for Summary Judgment and/or Adjudication

Background

Plaintiff Billy Ray Gallion ("Plaintiff") alleges that he was subjected to uninhabitable living conditions while residing in Unit 11 (the “Subject Unit") at 1508 12th St., Santa Monica, California 90401 (the “Property”). Plaintiff alleges that the Subject Unit was delivered and/or developed dangerous and hazardous conditions, and that he sustained injuries as a result of the alleged dangerous conditions. According to the operative pleading, Plaintiff took possession of the Subject Unit pursuant to a lease and was a tenant who rented the said unit from October 10, 2007, through February 20, 2017.

However, the Subject Unit represents one of eleven units at the Property. The remaining ten units at the Property together form a common interest development subject to the Davis-Stirling Common Interest Development Act (“Davis-Sterling Act”) (Civ. Code, 4000 et seq.). The development is governed by the Fifteen Zero Eight Twelfth Street Homeowners Association (“HOA”) and is subject to recorded covenants, conditions, and restrictions (“CC&R's”). The daily operations of the HOA were conducted by BLN Property Management, Inc. (“BLN”), a management company.

On February 22, 2017, Plaintiff filed this action’s Complaint and on October 12, 2021, filed this action’s Fifth Amended Complaint (“FAC”) against defendant Constantinos Georgiadis ("Defendant” and/or “Georgiadis”), among other defendants, asserting eight causes of action for (1) negligence; (2) nuisance; (3) failure to provide relocation benefits; (4) breach of the implied warranty of habitability; (5) breach of the implied covenant of quiet enjoyment; (6) tenant harassment; (7) wrongful eviction; and (8) violation of Civ. Code, 1942.4. The FAC asserts the first and second causes of action for negligence and nuisance against Defendant.

Plaintiff alleges that Defendant, an owner of Unit 5 at the Property, had actual or constructive notice of the unsafe, hazardous, dangerous, and otherwise defective conditions that existed prior to Plaintiff’s tenancy in the Subject Unit.

On December 9, 2021, Defendant filed the instant Motion for Summary Judgment, or in the

Alternative, Summary Adjudication as to the causes of action asserted against him for negligence and nuisance, and as to Plaintiff’s claims for punitive damages.

Defendant’s motion was heard by the Court on March 10, 2022. At that hearing the Court continued Defendant’s motion to allow completion of the depositions of Defendant and Bertha Lopez-Nava. The Court directed the parties to file supplemental briefing by April 15, 2022, on the impact of this discovery on defendant’s motion.

Request for Judicial Notice

Defendant requests that the Court take judicial notice of Plaintiff’s prior and operative complaints in this action, the September 26, 2019, Doe amendment naming Defendant as Doe 5, a Declaration of Covenants, Conditions and Restrictions, recorded with the Los

Angeles Recorder's Office on April 12, 1999, and a Statement by Common Interest Development Association filed with the California Secretary of State on March 18, 2020. Defendant’s request is unopposed and is GRANTED.

Objections to Evidence

The Court OVERRULES Defendant’s objections to the Declaration of Mitch Rosenweig and the exhibits thereto.

The Court OVERRULES Defendant’s objections to the Declaration of Billy Ray Gallion.

The Court OVERRULES Defendant’s objections to the Declaration of Jeff Hughes.

Summary Judgment Standard

Motions for summary judgment are governed by Code Civ. Proc. 437c, which allows a party to “move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (C.C.P. 437c(a)(1).) The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code Civ. Proc. 437c(c) “requires the trial judge to grant summary judgment if 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

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.

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (CCP 437c(p)(2); Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Summary Adjudication Standard

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See CCP 437c(f)(1).) “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.” (Ibid.) A party moving for summary adjudication bears the burden of persuasion that there are no triable issues of material facts. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.

In analyzing motions for summary adjudication, the court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 (Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party”).) A motion for summary adjudication must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

Analysis

1. Statute of Limitations

Defendant contends that the FAC’s claims for negligence and nuisance are time-barred as against him because the subsequent amendment substituting Defendant in place of Doe defendant 5 does not relate back to the Complaint.

The court has discretion to permit any sort of amendment to the pleadings. However, if there is an issue of the statute of limitations, the amendment must relate back to the original complaint. An amendment relates back to the original complaint if the amendment: (1) rests on the same general set of facts; (2) involves the same injury; and (3) refers to the same instrumentality. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383,408-409; Harrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 150-151.) An amended complaint relates back to an earlier complaint if it is based on the same general set of facts, even if the plaintiff alleges a different legal theory or new cause of action. (Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 934, 936.) Once a plaintiff amends the complaint to name an individual in place of a Doe defendant, the amendment “relates back” to the date the original complaint was filed, and the newly named defendant is treated as though he was originally named in the timely filed complaint. (Streicher v. Tommy's Elec. Co. (1985) 164 Cal.App.3d 876, 882.)

“[I]t is now well established that even though the plaintiff knows of the existence of the defendant sued by a fictitious name, and even though the plaintiff knows the defendant's actual identity (that is, his name), the plaintiff is ‘ignorant’ within the meaning of the statute if he lacks knowledge of that person's connection with the case or with his injuries.” (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593-94.) Stated otherwise, “[t]he phrase ‘ignorant of the name of a defendant’ is broadly interpreted to mean not only ignorant of the defendant's identity, but also ignorant of the facts giving rise to a cause of action against that defendant.” (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170.)

The FAC pleads only two causes of action against Defendant—negligence and nuisance. Defendant provides that while these two causes of action were included in the initial Complaint, they were not pled against Defendant because: (1) the Complaint’s claims were solely based on allegations that the Subject Unit’s owners negligently maintained the unit; (2) Defendant neither was at any point, nor is, the owner of the Subject Unit. Thus, Defendant argues that since the initial Complaint failed to state a cause of action against him, the FAC’s first cause of action for negligence and second cause of action for nuisance are time-barred as against him.

Defendant further argues that, even assuming the amendment adding him to the operative pleading related back to the Complaint, it is barred by the “discovery rule.” “An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citations.]” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.)

Defendant has not carried his burden to sustain his challenge to the operative pleading. For one, the Defendant makes a challenge to the pleading for the first time. A defendant's motion for summary judgment or summary adjudication “necessarily includes a test of the sufficiency of the complaint” and its legal effect is the same as a demurrer or motion for judgment on the pleadings. (See American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118; Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1375-1376, 1384; Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1244.)

Notably, such an argument was never raised by the Defendant as to the First Amended Complaint, and only now does he challenge the sufficiency of the Fifth Amended Complaint. Grounds for general demurrers are never waived (except those based on the statute of limitations), whereas all other grounds (i.e., grounds for special demurrers) are waived unless timely raised by demurrer. (Collins v. Rocha (1972) 7 Cal.3d 232, 239.) Hence, Defendant’s objections based on the statutes of limitations are deemed waived as the objections were not timely raised. Accordingly, Defendant’s motion for summary judgment or adjudication on the basis of the statute of limitations is DENIED.

2. Negligence

Defendant moves for summary judgment/adjudication on the FAC’s first cause of action for negligence, on the grounds that Plaintiff has not, and cannot reasonably obtain evidence, to establish: (1) that Defendant owed any duty to Plaintiff to maintain the Subject Unit; (2) that Defendant breached a duty owed to Plaintiff; and (3) that any breach of duty by Defendant was the proximate or legal cause of the resulting injuries.

To support a claim for negligence, a plaintiff must allege facts showing a legal duty to use due care, breach of the duty, causation, and damages. (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) “‘An owner is required to exercise ordinary care to render his premises reasonably safe for use by invitees thereon. [Citations.]’” (Markewych v. Altshules (1967) 255 Cal.App.2d 642, 645-646, quoting Powell v. Vracin (1957) 150 Cal.App.2d 454, 456.) It is well established that a property owner is not liable for damages caused by a minor, trivial or insignificant defect in property. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) If a condition presents an unreasonable risk of injury to those who encounter it, it is dangerous, and an owner is "under a duty to exercise ordinary care either to make the condition reasonably safe for their use or to give a warning adequate to enable them to avoid the harm." (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.)

Defendant has set forth evidence that he is an owner of Unit 5 and has never owned or managed Unit 11 where Plaintiff resided, and that the HOA was responsible for the management and repair of the common areas of the building. (UMF Nos. 14, 19-21.) Defendant also contends that Plaintiff’s responses to special interrogatories and requests for production demonstrate that Plaintiff cannot establish that Defendant, in particular, owed Plaintiff a duty as to the condition of Unit 11 where Plaintiff resided. (UMF Nos. 22-24, 27-28.)

In opposing Defendant’s motion, Plaintiff has submitted the declaration of expert Jeff Hughes, who inspected the subject property in 2019 and 2022. (Hughes Decl. at 4-5.) Mr. Hughes states that in his “opinion to a reasonable degree of certainty … some of the water intrusions into Unit 11 and the adjacent crawl space originated from within Unit 5.” (Id. at 9.) In his supplemental briefing, Plaintiff sets forth deposition testimony from Defendant providing that (1) Defendant or his brother addressed the plumbing issues at Defendant’s unit, (2) Defendant could not provide the dates that plumbing issues occurred at his unit, and (3) Defendant never investigated or determined whether any of the plumbing issues in Unit 5 caused water to leak into Plaintiff’s unit or the crawl space adjacent to it. Plaintiff also submits documentary evidence obtained from Bertha Lopez-Nava that a leak was discovered in June 2017 in the storage space adjacent to Plaintiff’s unit which a plumbing company determined originated at Defendant’s Unit 5.[1] (Plaintiff’s Supp. Brief at 3-4.) Plaintiff states that there is no evidence showing when that leak began.

The question is not, as Defendant has framed it, whether Defendant owed a duty to maintain or repair the unit where Plaintiff resided or adjacent common areas. The question is whether Defendant owed a duty to Plaintiff to prevent water leaking from Defendant’s unit and rendering Plaintiff’s unit uninhabitable. On the evidence before it, the Court finds that a triable issue of material fact exists regarding Defendant’s duty to prevent water from leaking from Unit 5 into Unit 11 and the adjacent crawl space, whether Defendant breached that duty, and whether any such breach proximately caused any of the harm alleged by Plaintiff.

Accordingly, the Court denies Defendant’s motion for summary adjudication as to Plaintiff’s cause of action for negligence.[2]

3. Nuisance

“A private nuisance cause of action requires the plaintiff to prove an injury specifically referable to the use and enjoyment of his or her land.” (Adams v. MHC Colony Park L.P. (2014) 224 Cal.App.4th 601, 610.) An action for private nuisance requires proof of a “substantial” and “unreasonable” interference with the use and enjoyment of private property which causes “substantial actual damage” to plaintiff. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938.) The interference must be “of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Id.) “[T]o establish claim for nuisance, the plaintiff must prove that the defendant ‘by acting or failing to act, created a condition that ... was harmful to health [or other enumerated conditions].’” (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1552, citation omitted, emphases and italics added.)

According to the FAC, the Subject Unit’s and Property’s alleged dangerous conditions constituted a private nuisance within the meaning of Civ. Code, sections 3479 and 3481. (FAC 58.) The alleged dangerous conditions were caused by Defendants’ failure to act/omissions. (Id., 59.)

In support of their arguments in connection to the nuisance claim, Defendant and Plaintiff relied on similar if not identical evidence furnished in support of their arguments for the first cause of action for negligence.

For the reasons discussed above and based on the evidence presented herein, the Court likewise concludes that Plaintiff met his burden to make a prima facie showing that one or more triable issues of material fact exist as to the element of causation. The Hughes Declaration and evidence submitted in Plaintiff’s supplemental briefing has controverted Defendant’s proof that Plaintiff has not and/or cannot reasonably obtain evidence to establish that Defendant’s separate interest (Unit 5) was a proximate cause of the alleged dangerous conditions at the Subject Unit and/or adjacent crawl space’s dangerous conditions (i.e., the formation of toxic mold). Therefore, the Court finds that the Plaintiff has met his burden to make a prima facie showing that one or more triable issues of material fact exist as to the element of causation.

Accordingly, the motion for summary adjudication is denied as to this cause of action.

4. Punitive damages

Defendant’s arguments in support of its motion for summary adjudication as to Plaintiff’s claim for punitive damages is a restatement of his argument concerning negligence. Defendant argues that “there is no proof that Defendant acted with malice, oppression or fraud” because: (1)“Plaintiff cannot state any supporting facts showing that a duty of care was owed by Defendant, yet alone any acts or omission specific to Defendant which resulted in damage to the subject unit and Plaintiff's injuries,” (2) “[t]here is also no evidence to show that Defendant ever owned or managed the subject unit,” and (3) “Plaintiff admitted that he could not identify Defendant or his unit, and failed to produce any responsive documents supporting his claims against Defendant.” (Motion at 10.)

As an initial matter, the Court notes that owning or managing the subject unit is not a prerequisite to the imposition of punitive damages. Nor do punitive damages depend on Plaintiff’s ability to identify Defendant or his unit. Further, having found that there are triable issues of material fact concerning Defendant’s duty, breach, and causation with respect to Plaintiff’s claims for negligence and nuisance, the same result follows here. Simply put, there are too many open factual questions concerning Defendant’s contribution—or lack thereof—to the injuries alleged in the FAC for the Court to find as a matter of law that Plaintiff could not establish a claim for punitive damages at trial. Accordingly, Defendant’s motion for summary adjudication as to Plaintiff’s claim for punitive damages is DENIED.

Conclusion

Defendant’s motion for summary judgment and/or adjudication is DENIED. Defendant to give notice.

Dated: April 29, 2022

Helen Zukin

Judge of the Superior Court


[1] Defendant contends that Plaintiff ceased residing at the subject property on February 20, 2017, months before the discovery of this leak. (UMF No. 2.) However, the Court has before it no evidence indicating when that leak started and cannot now find as a matter of law that it was not ongoing while Plaintiff resided at the property.

[2] In his reply brief, Defendant contends for the first time that he is also immune from any liability for negligence by virtue of Corporations Code 7350(a). To the extent that Defendant is relying on that assertion as a separate and independent basis for his motion for summary adjudication, the Court finds that Defendant failed to raise this basis in his initial moving papers and will disregard this argument for purposes of ruling on Defendant’s motion. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail]; American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 [“[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument”]; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [“’the rule is that points raised in the reply brief for the first time will not be considered’” absent a showing of good cause].)



Case Number: ****7112 Hearing Date: May 19, 2022 Dept: 207

Superior Court of California

County of Los Angeles

Beverly Hills Courthouse | Department 207

BILLY RAY GALLION,

Plaintiff,

v.

MARK G. RINGO, an individual and as Trustee of the Mark G. Ringo Trust, et al.,

Defendants.

Case No.: ****7112

Hearing Date: 05/19/22

Trial Date: 7/5/22

[TENTATIVE] RULING RE:

Defendant Constantinos Georgiadis’ Motion for Summary Judgment and/or Adjudication

Background

Plaintiff Billy Ray Gallion ("Plaintiff") alleges that he was subjected to uninhabitable living conditions while residing in Unit 11 (the “Subject Unit") at 1508 12th St., Santa Monica, California 90401 (the “Property”). Plaintiff alleges that the Subject Unit was delivered and/or developed dangerous and hazardous conditions, and that he sustained injuries as a result of the alleged dangerous conditions. According to the operative pleading, Plaintiff took possession of the Subject Unit pursuant to a lease and was a tenant who rented the said unit from October 10, 2007, through February 20, 2017.

However, the Subject Unit represents one of eleven units at the Property. The remaining ten units at the Property together form a common interest development subject to the Davis-Stirling Common Interest Development Act (“Davis-Sterling Act”) (Civ. Code, 4000 et seq.). The development is governed by the Fifteen Zero Eight Twelfth Street Homeowners Association (“HOA”) and is subject to recorded covenants, conditions, and restrictions (“CC&R's”). The daily operations of the HOA were conducted by BLN Property Management, Inc. (“BLN”), a management company.

On February 22, 2017, Plaintiff filed this action’s Complaint and on October 12, 2021, filed this action’s Fifth Amended Complaint (“FAC”) against defendant Constantinos Georgiadis ("Defendant” and/or “Georgiadis”), among other defendants, asserting eight causes of action for (1) negligence; (2) nuisance; (3) failure to provide relocation benefits; (4) breach of the implied warranty of habitability; (5) breach of the implied covenant of quiet enjoyment; (6) tenant harassment; (7) wrongful eviction; and (8) violation of Civ. Code, 1942.4. The FAC asserts the first and second causes of action for negligence and nuisance against Defendant.

Plaintiff alleges that Defendant, an owner of Unit 5 at the Property, had actual or constructive notice of the unsafe, hazardous, dangerous, and otherwise defective conditions that existed prior to Plaintiff’s tenancy in the Subject Unit.

On December 9, 2021, Defendant filed the instant Motion for Summary Judgment, or in the

Alternative, Summary Adjudication as to the causes of action asserted against him for negligence and nuisance, and as to Plaintiff’s claims for punitive damages.

Defendant’s motion was heard by the Court on March 10, 2022. At that hearing the Court continued Defendant’s motion to allow completion of the depositions of Defendant and Bertha Lopez-Nava. The Court directed the parties to file supplemental briefing by April 15, 2022, on the impact of this discovery on defendant’s motion.

Request for Judicial Notice

Defendant requests that the Court take judicial notice of Plaintiff’s prior and operative complaints in this action, the September 26, 2019, Doe amendment naming Defendant as Doe 5, a Declaration of Covenants, Conditions and Restrictions, recorded with the Los

Angeles Recorder's Office on April 12, 1999, and a Statement by Common Interest Development Association filed with the California Secretary of State on March 18, 2020. Defendant’s request is unopposed and is GRANTED.

Objections to Evidence

The Court OVERRULES Defendant’s objections to the Declaration of Mitch Rosenweig and the exhibits thereto.

The Court OVERRULES Defendant’s objections to the Declaration of Billy Ray Gallion.

The Court OVERRULES Defendant’s objections to the Declaration of Jeff Hughes.

Summary Judgment Standard

Motions for summary judgment are governed by Code Civ. Proc. 437c, which allows a party to “move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (C.C.P. 437c(a)(1).) The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code Civ. Proc. 437c(c) “requires the trial judge to grant summary judgment if 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

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.

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (CCP 437c(p)(2); Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Summary Adjudication Standard

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See CCP 437c(f)(1).) “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.” (Ibid.) A party moving for summary adjudication bears the burden of persuasion that there are no triable issues of material facts. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.

In analyzing motions for summary adjudication, the court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 (Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party”).) A motion for summary adjudication must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

Analysis

1. Statute of Limitations

Defendant contends that the FAC’s claims for negligence and nuisance are time-barred as against him because the subsequent amendment substituting Defendant in place of Doe defendant 5 does not relate back to the Complaint.

The court has discretion to permit any sort of amendment to the pleadings. However, if there is an issue of the statute of limitations, the amendment must relate back to the original complaint. An amendment relates back to the original complaint if the amendment: (1) rests on the same general set of facts; (2) involves the same injury; and (3) refers to the same instrumentality. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383,408-409; Harrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 150-151.) An amended complaint relates back to an earlier complaint if it is based on the same general set of facts, even if the plaintiff alleges a different legal theory or new cause of action. (Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 934, 936.) Once a plaintiff amends the complaint to name an individual in place of a Doe defendant, the amendment “relates back” to the date the original complaint was filed, and the newly named defendant is treated as though he was originally named in the timely filed complaint. (Streicher v. Tommy's Elec. Co. (1985) 164 Cal.App.3d 876, 882.)

“[I]t is now well established that even though the plaintiff knows of the existence of the defendant sued by a fictitious name, and even though the plaintiff knows the defendant's actual identity (that is, his name), the plaintiff is ‘ignorant’ within the meaning of the statute if he lacks knowledge of that person's connection with the case or with his injuries.” (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593-94.) Stated otherwise, “[t]he phrase ‘ignorant of the name of a defendant’ is broadly interpreted to mean not only ignorant of the defendant's identity, but also ignorant of the facts giving rise to a cause of action against that defendant.” (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170.)

The FAC pleads only two causes of action against Defendant—negligence and nuisance. Defendant provides that while these two causes of action were included in the initial Complaint, they were not pled against Defendant because: (1) the Complaint’s claims were solely based on allegations that the Subject Unit’s owners negligently maintained the unit; (2) Defendant neither was at any point, nor is, the owner of the Subject Unit. Thus, Defendant argues that since the initial Complaint failed to state a cause of action against him, the FAC’s first cause of action for negligence and second cause of action for nuisance are time-barred as against him.

Defendant further argues that, even assuming the amendment adding him to the operative pleading related back to the Complaint, it is barred by the “discovery rule.” “An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citations.]” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.)

Defendant has not carried his burden to sustain his challenge to the operative pleading. For one, the Defendant makes a challenge to the pleading for the first time. A defendant's motion for summary judgment or summary adjudication “necessarily includes a test of the sufficiency of the complaint” and its legal effect is the same as a demurrer or motion for judgment on the pleadings. (See American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118; Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1375-1376, 1384; Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1244.)

Notably, such an argument was never raised by the Defendant as to the First Amended Complaint, and only now does he challenge the sufficiency of the Fifth Amended Complaint. Grounds for general demurrers are never waived (except those based on the statute of limitations), whereas all other grounds (i.e., grounds for special demurrers) are waived unless timely raised by demurrer. (Collins v. Rocha (1972) 7 Cal.3d 232, 239.) Hence, Defendant’s objections based on the statutes of limitations are deemed waived as the objections were not timely raised. Accordingly, Defendant’s motion for summary judgment or adjudication on the basis of the statute of limitations is DENIED.

2. Negligence

Defendant moves for summary judgment/adjudication on the FAC’s first cause of action for negligence, on the grounds that Plaintiff has not, and cannot reasonably obtain evidence, to establish: (1) that Defendant owed any duty to Plaintiff to maintain the Subject Unit; (2) that Defendant breached a duty owed to Plaintiff; and (3) that any breach of duty by Defendant was the proximate or legal cause of the resulting injuries.

To support a claim for negligence, a plaintiff must allege facts showing a legal duty to use due care, breach of the duty, causation, and damages. (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) “‘An owner is required to exercise ordinary care to render his premises reasonably safe for use by invitees thereon. [Citations.]’” (Markewych v. Altshules (1967) 255 Cal.App.2d 642, 645-646, quoting Powell v. Vracin (1957) 150 Cal.App.2d 454, 456.) It is well established that a property owner is not liable for damages caused by a minor, trivial or insignificant defect in property. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) If a condition presents an unreasonable risk of injury to those who encounter it, it is dangerous, and an owner is "under a duty to exercise ordinary care either to make the condition reasonably safe for their use or to give a warning adequate to enable them to avoid the harm." (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.)

Defendant has set forth evidence that he is an owner of Unit 5 and has never owned or managed Unit 11 where Plaintiff resided, and that the HOA was responsible for the management and repair of the common areas of the building. (UMF Nos. 14, 19-21.) Defendant also contends that Plaintiff’s responses to special interrogatories and requests for production demonstrate that Plaintiff cannot establish that Defendant, in particular, owed Plaintiff a duty as to the condition of Unit 11 where Plaintiff resided. (UMF Nos. 22-24, 27-28.)

In opposing Defendant’s motion, Plaintiff has submitted the declaration of expert Jeff Hughes, who inspected the subject property in 2019 and 2022. (Hughes Decl. at 4-5.) Mr. Hughes states that in his “opinion to a reasonable degree of certainty … some of the water intrusions into Unit 11 and the adjacent crawl space originated from within Unit 5.” (Id. at 9.) In his supplemental briefing, Plaintiff sets forth deposition testimony from Defendant providing that (1) Defendant or his brother addressed the plumbing issues at Defendant’s unit, (2) Defendant could not provide the dates that plumbing issues occurred at his unit, and (3) Defendant never investigated or determined whether any of the plumbing issues in Unit 5 caused water to leak into Plaintiff’s unit or the crawl space adjacent to it. Plaintiff also submits documentary evidence obtained from Bertha Lopez-Nava that a leak was discovered in June 2017 in the storage space adjacent to Plaintiff’s unit which a plumbing company determined originated at Defendant’s Unit 5.[1] (Plaintiff’s Supp. Brief at 3-4.) Plaintiff states that there is no evidence showing when that leak began.

The question is not, as Defendant has framed it, whether Defendant owed a duty to maintain or repair the unit where Plaintiff resided or adjacent common areas. The question is whether Defendant owed a duty to Plaintiff to prevent water leaking from Defendant’s unit and rendering Plaintiff’s unit uninhabitable. On the evidence before it, the Court finds that a triable issue of material fact exists regarding Defendant’s duty to prevent water from leaking from Unit 5 into Unit 11 and the adjacent crawl space, whether Defendant breached that duty, and whether any such breach proximately caused any of the harm alleged by Plaintiff.

Accordingly, the Court denies Defendant’s motion for summary adjudication as to Plaintiff’s cause of action for negligence.[2]

3. Nuisance

“A private nuisance cause of action requires the plaintiff to prove an injury specifically referable to the use and enjoyment of his or her land.” (Adams v. MHC Colony Park L.P. (2014) 224 Cal.App.4th 601, 610.) An action for private nuisance requires proof of a “substantial” and “unreasonable” interference with the use and enjoyment of private property which causes “substantial actual damage” to plaintiff. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938.) The interference must be “of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Id.) “[T]o establish claim for nuisance, the plaintiff must prove that the defendant ‘by acting or failing to act, created a condition that ... was harmful to health [or other enumerated conditions].’” (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1552, citation omitted, emphases and italics added.)

According to the FAC, the Subject Unit’s and Property’s alleged dangerous conditions constituted a private nuisance within the meaning of Civ. Code, sections 3479 and 3481. (FAC 58.) The alleged dangerous conditions were caused by Defendants’ failure to act/omissions. (Id., 59.)

In support of their arguments in connection to the nuisance claim, Defendant and Plaintiff relied on similar if not identical evidence furnished in support of their arguments for the first cause of action for negligence.

For the reasons discussed above and based on the evidence presented herein, the Court likewise concludes that Plaintiff met his burden to make a prima facie showing that one or more triable issues of material fact exist as to the element of causation. The Hughes Declaration and evidence submitted in Plaintiff’s supplemental briefing has controverted Defendant’s proof that Plaintiff has not and/or cannot reasonably obtain evidence to establish that Defendant’s separate interest (Unit 5) was a proximate cause of the alleged dangerous conditions at the Subject Unit and/or adjacent crawl space’s dangerous conditions (i.e., the formation of toxic mold). Therefore, the Court finds that the Plaintiff has met his burden to make a prima facie showing that one or more triable issues of material fact exist as to the element of causation.

Accordingly, the motion for summary adjudication is denied as to this cause of action.

4. Punitive damages

Defendant’s arguments in support of its motion for summary adjudication as to Plaintiff’s claim for punitive damages is a restatement of his argument concerning negligence. Defendant argues that “there is no proof that Defendant acted with malice, oppression or fraud” because: (1)“Plaintiff cannot state any supporting facts showing that a duty of care was owed by Defendant, yet alone any acts or omission specific to Defendant which resulted in damage to the subject unit and Plaintiff's injuries,” (2) “[t]here is also no evidence to show that Defendant ever owned or managed the subject unit,” and (3) “Plaintiff admitted that he could not identify Defendant or his unit, and failed to produce any responsive documents supporting his claims against Defendant.” (Motion at 10.)

As an initial matter, the Court notes that owning or managing the subject unit is not a prerequisite to the imposition of punitive damages. Nor do punitive damages depend on Plaintiff’s ability to identify Defendant or his unit. Further, having found that there are triable issues of material fact concerning Defendant’s duty, breach, and causation with respect to Plaintiff’s claims for negligence and nuisance, the same result follows here. Simply put, there are too many open factual questions concerning Defendant’s contribution—or lack thereof—to the injuries alleged in the FAC for the Court to find as a matter of law that Plaintiff could not establish a claim for punitive damages at trial. Accordingly, Defendant’s motion for summary adjudication as to Plaintiff’s claim for punitive damages is DENIED.

Conclusion

Defendant’s motion for summary judgment and/or adjudication is DENIED. Defendant to give notice.

Dated: April 29, 2022

Helen Zukin

Judge of the Superior Court


[1] Defendant contends that Plaintiff ceased residing at the subject property on February 20, 2017, months before the discovery of this leak. (UMF No. 2.) However, the Court has before it no evidence indicating when that leak started and cannot now find as a matter of law that it was not ongoing while Plaintiff resided at the property.

[2] In his reply brief, Defendant contends for the first time that he is also immune from any liability for negligence by virtue of Corporations Code 7350(a). To the extent that Defendant is relying on that assertion as a separate and independent basis for his motion for summary adjudication, the Court finds that Defendant failed to raise this basis in his initial moving papers and will disregard this argument for purposes of ruling on Defendant’s motion. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail]; American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 [“[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument”]; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [“’the rule is that points raised in the reply brief for the first time will not be considered’” absent a showing of good cause].)



Case Number: ****7112 Hearing Date: April 29, 2022 Dept: 207

Superior Court of California

County of Los Angeles

Beverly Hills Courthouse | Department 207

BILLY RAY GALLION,

Plaintiff,

v.

MARK G. RINGO, an individual and as Trustee of the Mark G. Ringo Trust, et al.,

Defendants.

Case No.: ****7112

Hearing Date: 4/29/22

Trial Date: 7/5/22

[TENTATIVE] RULING RE:

Defendant Constantinos Georgiadis’ Motion for Summary Judgment and/or Adjudication

Background

Plaintiff Billy Ray Gallion ("Plaintiff") alleges that he was subjected to uninhabitable living conditions while residing in Unit 11 (the “Subject Unit") at 1508 12th St., Santa Monica, California 90401 (the “Property”). Plaintiff alleges that the Subject Unit was delivered and/or developed dangerous and hazardous conditions, and that he sustained injuries as a result of the alleged dangerous conditions. According to the operative pleading, Plaintiff took possession of the Subject Unit pursuant to a lease and was a tenant who rented the said unit from October 10, 2007, through February 20, 2017.

However, the Subject Unit represents one of eleven units at the Property. The remaining ten units at the Property together form a common interest development subject to the Davis-Stirling Common Interest Development Act (“Davis-Sterling Act”) (Civ. Code, 4000 et seq.). The development is governed by the Fifteen Zero Eight Twelfth Street Homeowners Association (“HOA”) and is subject to recorded covenants, conditions, and restrictions (“CC&R's”). The daily operations of the HOA were conducted by BLN Property Management, Inc. (“BLN”), a management company.

On February 22, 2017, Plaintiff filed this action’s Complaint and on October 12, 2021, filed this action’s Fifth Amended Complaint (“FAC”) against defendant Constantinos Georgiadis ("Defendant” and/or “Georgiadis”), among other defendants, asserting eight causes of action for (1) negligence; (2) nuisance; (3) failure to provide relocation benefits; (4) breach of the implied warranty of habitability; (5) breach of the implied covenant of quiet enjoyment; (6) tenant harassment; (7) wrongful eviction; and (8) violation of Civ. Code, 1942.4. The FAC asserts the first and second causes of action for negligence and nuisance against Defendant.

Plaintiff alleges that Defendant, an owner of Unit 5 at the Property, had actual or constructive notice of the unsafe, hazardous, dangerous, and otherwise defective conditions that existed prior to Plaintiff’s tenancy in the Subject Unit.

On December 9, 2021, Defendant filed the instant Motion for Summary Judgment, or in the

Alternative, Summary Adjudication as to the causes of action asserted against him for negligence and nuisance, and as to Plaintiff’s claims for punitive damages.

Defendant’s motion was heard by the Court on March 10, 2022. At that hearing the Court continued Defendant’s motion to allow completion of the depositions of Defendant and Bertha Lopez-Nava. The Court directed the parties to file supplemental briefing by April 15, 2022, on the impact of this discovery on defendant’s motion.

Request for Judicial Notice

Defendant requests that the Court take judicial notice of Plaintiff’s prior and operative complaints in this action, the September 26, 2019, Doe amendment naming Defendant as Doe 5, a Declaration of Covenants, Conditions and Restrictions, recorded with the Los

Angeles Recorder's Office on April 12, 1999, and a Statement by Common Interest Development Association filed with the California Secretary of State on March 18, 2020. Defendant’s request is unopposed and is GRANTED.

Objections to Evidence

The Court OVERRULES Defendant’s objections to the Declaration of Mitch Rosenweig and the exhibits thereto.

The Court OVERRULES Defendant’s objections to the Declaration of Billy Ray Gallion.

The Court OVERRULES Defendant’s objections to the Declaration of Jeff Hughes.

Summary Judgment Standard

Motions for summary judgment are governed by Code Civ. Proc. 437c, which allows a party to “move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (C.C.P. 437c(a)(1).) The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code Civ. Proc. 437c(c) “requires the trial judge to grant summary judgment if 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

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.

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (CCP 437c(p)(2); Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Summary Adjudication Standard

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See CCP 437c(f)(1).) “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.” (Ibid.) A party moving for summary adjudication bears the burden of persuasion that there are no triable issues of material facts. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.

In analyzing motions for summary adjudication, the court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 (Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party”).) A motion for summary adjudication must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).

Analysis

1. Statute of Limitations

Defendant contends that the FAC’s claims for negligence and nuisance are time-barred as against him because the subsequent amendment substituting Defendant in place of Doe Defendant 5 does not relate back to the Complaint.

The court has discretion to permit any sort of amendment to the pleadings. However, if there is an issue of the statute of limitations, the amendment must relate back to the original complaint. An amendment relates back to the original complaint if the amendment: (1) rests on the same general set of facts; (2) involves the same injury; and (3) refers to the same instrumentality. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383,408-409; Harrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 150-151.) An amended complaint relates back to an earlier complaint if it is based on the same general set of facts, even if the plaintiff alleges a different legal theory or new cause of action. (Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 934, 936.) Once a plaintiff amends the complaint to name an individual in place of a Doe defendant, the amendment “relates back” to the date the original complaint was filed, and the newly named defendant is treated as though he was originally named in the timely filed complaint. (Streicher v. Tommy's Elec. Co. (1985) 164 Cal.App.3d 876, 882.)

“[I]t is now well established that even though the plaintiff knows of the existence of the defendant sued by a fictitious name, and even though the plaintiff knows the defendant's actual identity (that is, his name), the plaintiff is ‘ignorant’ within the meaning of the statute if he lacks knowledge of that person's connection with the case or with his injuries.” (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593-94.) Stated otherwise, “[t]he phrase ‘ignorant of the name of a defendant’ is broadly interpreted to mean not only ignorant of the defendant's identity, but also ignorant of the facts giving rise to a cause of action against that defendant.” (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170.)

The FAC pleads only two causes of action against Defendant—negligence and nuisance. Defendant provides that while these two causes of action were included in the initial Complaint, they were not pled against Defendant because: (1) the Complaint’s claims were solely based on allegations that the Subject Unit’s owners negligently maintained the unit; (2) Defendant neither was at any point, nor is, the owner of the Subject Unit. Thus, Defendant argues that since the initial Complaint failed to state a cause of action against him, the FAC’s first cause of action for negligence and second cause of action for nuisance are time-barred as against him.

Defendant further argues that, even assuming the amendment adding her to the operative pleading related back to the Complaint, it is barred by the “discovery rule.” “An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citations.]” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.)

Defendant has not carried his burden to sustain his challenge to the operative pleading. For one, the Defendant makes a challenge to the pleading for the first time. A defendant's motion for summary judgment or summary adjudication “necessarily includes a test of the sufficiency of the complaint” and its legal effect is the same as a demurrer or motion for judgment on the pleadings. (See American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118; Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1375-1376, 1384; Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1244.)

Notably, such an argument was never raised by the Defendant as to the First Amended Complaint, and only now does he challenge the sufficiency of the Fifth Amended Complaint. Grounds for general demurrers are never waived (except those based on the statute of limitations), whereas all other grounds (i.e., grounds for special demurrers) are waived unless timely raised by demurrer. (Collins v. Rocha (1972) 7 Cal.3d 232, 239.) Hence, Defendant’s objections based on the statute of limitations are deemed waived as the objections were not timely raised. Accordingly, Defendant’s motion for summary judgment or adjudication on the basis of the statute of limitations is DENIED.

2. Negligence

Defendant moves for summary judgment/adjudication on the FAC’s first cause of action for negligence, on the grounds that Plaintiff has not, and cannot reasonably obtain evidence, to establish: (1) that Defendant owed any duty to Plaintiff to maintain the Subject Unit; (2) that Defendant breached a duty owed to Plaintiff; and (3) that any breach of duty by Defendant was the proximate or legal cause of the resulting injuries.

To support a claim for negligence, a plaintiff must allege facts showing a legal duty to use due care, breach of the duty, causation, and damages. (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) “‘An owner is required to exercise ordinary care to render his premises reasonably safe for use by invitees thereon. [Citations.]’” (Markewych v. Altshules (1967) 255 Cal.App.2d 642, 645-646, quoting Powell v. Vracin (1957) 150 Cal.App.2d 454, 456.) It is well established that a property owner is not liable for damages caused by a minor, trivial or insignificant defect in property. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) If a condition presents an unreasonable risk of injury to those who encounter it, it is dangerous, and an owner is "under a duty to exercise ordinary care either to make the condition reasonably safe for their use or to give a warning adequate to enable them to avoid the harm." (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.)

Defendant has set forth evidence that he is an owner of Unit 5 and has never owned or managed Unit 11 where Plaintiff resided, and that the HOA was responsible for the management and repair of the common areas of the building. (UMF Nos. 14, 19-21.) Defendant also contends that Plaintiff’s responses to special interrogatories and requests for production demonstrate that Plaintiff cannot establish that Defendant, in particular, owed Plaintiff a duty as to the condition of Unit 11 where Plaintiff resided. (UMF Nos. 22-24, 27-28.)

In opposing Defendant’s motion, Plaintiff has submitted the declaration of expert Jeff Hughes, who inspected the subject property in 2019 and 2022. (Hughes Decl. at 4-5.) Mr. Hughes states that in his “opinion to a reasonable degree of certainty … some of the water intrusions into Unit 11 and the adjacent crawl space originated from within Unit 5.” (Id. at 9.) In his supplemental briefing, Plaintiff sets forth deposition testimony from Defendant providing that (1) Defendant or his brother addressed the plumbing issues at Defendant’s unit, (2) Defendant could not provide the dates that plumbing issues occurred at his unit, and (3) Defendant never investigated or determined whether any of the plumbing issues in Unit 5 caused water to leak into Plaintiff’s unit or the crawl space adjacent to it. Plaintiff also submits documentary evidence obtained from Bertha Lopez-Nava that a leak was discovered in June 2017 in the storage space adjacent to Plaintiff’s unit which a plumbing company determined originated at Defendant’s Unit 5.[1] (Plaintiff’s Supp. Brief at 3-4.) Plaintiff states that there is no evidence showing when that leak began.

The question is not, as Defendant has framed it, whether Defendant owed a duty to maintain or repair the unit where Plaintiff resided or adjacent common areas. The question is whether Defendant owed a duty to Plaintiff to prevent water leaking from Defendant’s unit and rendering Plaintiff’s unit uninhabitable. On the evidence before it, the Court finds that a triable issue of material fact exists regarding Defendant’s duty to prevent water from leaking from Unit 5 into Unit 11 and the adjacent crawl space, whether Defendant breached that duty, and whether any such breach proximately caused any of the harm alleged by Plaintiff.

Accordingly, the Court DENIES Defendant’s motion for summary adjudication as to Plaintiff’s cause of action for negligence.[2]

3. Nuisance

“A private nuisance cause of action requires the plaintiff to prove an injury specifically referable to the use and enjoyment of his or her land.” (Adams v. MHC Colony Park L.P. (2014) 224 Cal.App.4th 601, 610.) An action for private nuisance requires proof of a “substantial” and “unreasonable” interference with the use and enjoyment of private property which causes “substantial actual damage” to plaintiff. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938.) The interference must be “of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Id.) “[T]o establish claim for nuisance, the plaintiff must prove that the defendant ‘by acting or failing to act, created a condition that ... was harmful to health [or other enumerated conditions].’” (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1552, citation omitted, emphases and italics added.)

According to the FAC, the Subject Unit’s and Property’s alleged dangerous conditions constituted a private nuisance within the meaning of Civ. Code, sections 3479 and 3481. (FAC 58.) The alleged dangerous conditions were caused by Defendants’ failure to act/omissions. (Id., 59.)

In support of their arguments in connection to the nuisance claim, Defendant and Plaintiff relied on similar if not identical evidence furnished in support of their arguments for the first cause of action for negligence.

For the reasons discussed above and based on the evidence presented herein, the Court likewise concludes that Plaintiff met his burden to make a prima facie showing that one or more triable issues of material fact exist as to the element of causation. The Hughes Declaration and evidence submitted in Plaintiff’s supplemental briefing have controverted Defendant’s proof that Plaintiff has not and/or cannot reasonably obtain evidence to establish that Defendant’s separate interest (Unit 5) was a proximate cause of the alleged dangerous conditions at the Subject Unit and/or adjacent crawl space’s dangerous conditions (i.e., the formation of toxic mold). Therefore, the Court finds that the Plaintiff has met his burden to make a prima facie showing that one or more triable issues of material fact exist as to the element of causation.

Accordingly, the motion for summary adjudication is DENIED as to this cause of action.

4. Punitive damages

Defendant’s arguments in support of its motion for summary adjudication as to Plaintiff’s claim for punitive damages is a restatement of his argument concerning negligence. Defendant argues that “there is no proof that Defendant acted with malice, oppression or fraud” because: (1)“Plaintiff cannot state any supporting facts showing that a duty of care was owed by Defendant, yet alone any acts or omission specific to Defendant which resulted in damage to the subject unit and Plaintiff's injuries,” (2) “[t]here is also no evidence to show that Defendant ever owned or managed the subject unit,” and (3) “Plaintiff admitted that he could not identify Defendant or his unit, and failed to produce any responsive documents supporting his claims against Defendant.” (Motion at 10.)

As an initial matter, the Court notes that owning or managing the subject unit is not a prerequisite to the imposition of punitive damages. Nor do punitive damages depend on Plaintiff’s ability to identify Defendant or his unit. Further, having found that there are triable issues of material fact concerning Defendant’s duty, breach, and causation with respect to Plaintiff’s claims for negligence and nuisance, the same result follows here. Simply put, there are too many open factual questions concerning Defendant’s contribution—or lack thereof—to the injuries alleged in the FAC for the Court to find as a matter of law that Plaintiff could not establish a claim for punitive damages at trial. Accordingly, Defendant’s motion for summary adjudication as to Plaintiff’s claim for punitive damages is DENIED.

Conclusion

Defendant’s motion for summary judgment and/or adjudication is DENIED. Defendant to give notice.

Dated: April 29, 2022

Helen Zukin

Judge of the Superior Court


[1] Defendant contends that Plaintiff ceased residing at the subject property on February 20, 2017, months before the discovery of this leak. (UMF No. 2.) However, the Court has before it no evidence indicating when that leak started and cannot now find as a matter of law that it was not ongoing while Plaintiff resided at the property.

[2] In his reply brief, Defendant contends for the first time that he is also immune from any liability for negligence by virtue of Corporations Code 7350(a). To the extent that Defendant is relying on that assertion as a separate and independent basis for his motion for summary adjudication, the Court finds that Defendant failed to raise this basis in his initial moving papers and will disregard this argument for purposes of ruling on Defendant’s motion. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail]; American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 [“[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument”]; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [“’the rule is that points raised in the reply brief for the first time will not be considered’” absent a showing of good cause].)



Case Number: ****7112 Hearing Date: March 22, 2022 Dept: 207

Background

Plaintiff Billy Ray Gallion ("Plaintiff") alleges that he was subjected to uninhabitable living conditions while residing in Unit 11 (the “Subject Unit") at 1508 12th St., Santa Monica, California 90401 (the “Property”). Plaintiff alleges that the Subject Unit was delivered and/or developed dangerous and hazardous conditions,[1] and that he sustained injuries as a result of the alleged dangerous conditions.[2] According to the operative pleading, Plaintiff took possession of the Subject Unit pursuant to a lease and was a tenant who rented the said unit from October 10, 2007, through February 20, 2017.

However, the Subject Unit represents one of eleven units at the Property. The remaining ten units at the Property together form a common interest development subject to the Davis-Stirling Common Interest Development Act (“Davis-Sterling Act”) (Civ. Code, 4000 et seq.). The development is governed by the Fifteen Zero Eight Twelfth Street Homeowners Association (“HOA”) and is subject to recorded covenants, conditions, and restrictions (“CC&R's”). The daily operations of the HOA were conducted by BLN Property Management, Inc. (“BLN”), a management company.

On February 22, 2017, Plaintiff filed this action’s Complaint and on October 12, 2021, filed this action’s Fifth Amended Complaint (“FAC”) against defendant Cheri Krus ("Defendant” and/or “Krus”), among other defendants, asserting eight causes of action for (1) negligence; (2) nuisance; (3) failure to provide relocation benefits; (4) breach of the implied warranty of habitability; (5) breach of the implied covenant of quiet enjoyment; (6) tenant harassment; (7) wrongful eviction; and (8) violation of Civ. Code, 1942.4. The FAC asserts the first and second causes of action for nuisance against Defendant.

Plaintiff alleges that Defendant, a former owner of Unit 3 at the Property, had actual or constructive notice of the unsafe, hazardous, dangerous, and otherwise defective conditions that existed prior to Plaintiff’s tenancy in the Subject Unit.

On December 7, 2021, Defendant Krus filed the instant Motion for Summary Judgment, or in the Alternative, Summary Adjudication.

On March 8, 2022, Plaintiff filed his opposition papers to the instant motion.

On March 17, 2022, Defendant filed her reply papers to Plaintiff’s opposition.

Evidentiary Objections

Defendant’s Objection to the Declaration of Mitch Rosensweig ISO Mot.

*Objections not formatted in compliance with CRC, rule 3.1354(b). (Id. [“Each written objection must be numbered consecutively….”].)

Overruled: All unnumbered objections.

Grounds: Proper foundation, are relevant to the instant action’s subject matter, and the statements are exceptions to hearsay as party admissions by Defendant. (Evid. Code, 350, 400.)

Defendant’s Objection to the Declaration of Billy Ray Gallion ISO Oppo.

Overruled: All unnumbered objections

Grounds: Proper foundation provided, declarant has personal knowledge, is relevant, and not hearsay. (Evid. Code, 350, 400.)

Defendant’s Objection to the Declaration of Jeff Hughes ISO Oppo.

Overruled: All unnumbered objections

Grounds: Proper foundation and is relevant. (Evid. Code, 350, 400.) Risk of prejudice does not substantially outweigh the evidence’s probative value. Moreover, expert testimony based on matter that reasonably may be relied upon by an expert in forming an opinion upon the subject and/or based on reasons supported by the material on which the expert relies. (Evid. Code, 720, 801(a)-(b), 802; Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-772 (A trial court must “act[ ] as a gatekeeper to exclude expert opinion testimony that is (1) based on a matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative.”)

Motion for Summary Judgment Standard

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

A motion for summary judgment must be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., 437c(c) (emphasis added).) On the other hand, a motion for summary adjudication must be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Id., 437(f)(1).) The summary adjudication motion may be based on the same evidence submitted in support of a concurrent summary judgment request. (CRC, rule 3.1350(b).)

Burden of Persuasion

In general, a party who asks a court to act in his or her favor also bears the burden of persuasion (Evid. Code, 500). Thus, “from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th 826, 850 (emphasis added).)

Plaintiffs moving for summary judgment bear 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. (Code Civ. Proc., 437c(p)(1).) Defendants moving for summary judgment bear the burden of persuasion that one or more elements of the cause of action in question “cannot be established,” or that “there is a complete defense” thereto. (Id., 437c(p)(2); Aguilar, supra, 25 Cal.4th at 850.)

Burden of Proof

Furthermore, “the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A prima facie showing is one that is sufficient to support the position of the party in question. “No more is called for.” (Aguilar, supra, 25 Cal.4th at 851.) “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, 25 Cal.4th at 855.)

If the moving party carries this burden, it causes a shift, and the opposing party is then subject to its own burden of production to make a prima facie showing that a triable issue of material fact exists. (Aguilar, supra, 25 Cal.4th at 850.)

Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence. (Evid. Code, 115.) Where plaintiff has the burden of proof at trial by a preponderance of evidence, defendant “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, he [defendant] would not be entitled to judgment as a matter of law but would have to present his evidence to a trier of fact.” (Aguilar, supra, 25 Cal.4th at 851.) The result is that summary judgment lies only where the opponent has no case at all (not merely a weak case). (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1215, fn. 12—summary judgment appropriate where defendants establish an affirmative defense as to all claims against them.)

“The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, 25 Cal.4th at 855.)

Analysis

1. The Motion at Hand is Denied

Defendant moves the Court for an order granting summary judgment on the FAC against Plaintiff and in favor of Defendant. In the alternative, Defendant moves the Court for an order granting summary adjudication on the FAC’s first cause of action for negligence and second cause of action for nuisance. Defendant’s basis for the motion for summary adjudication is that: (1) It is undisputed that Plaintiffs claims for recovery based on personal property damage fail because pursuant to the terms of the CC&Rs, the owner of Plaintiff’s unit is solely responsible for such damages; and (2) It is undisputed that Plaintiff's claim for nuisance fails because Plaintiff has no evidence, and cannot obtain any evidence, that Krus knowingly failed to abate a nuisance.

2. Statute of Limitations

To begin with, Defendant argued that she is entitled to summary judgment as the FAC’s causes of action for negligence and nuisance are time barred against Defendant because the amendment substituting Krus for Doe defendant 8 does not relate back to the Complaint. In addition, Defendant claims the FAC’s first and second causes of action are barred by the “discovery rule.”

The statute of limitations for bodily injury caused by the wrongful act or neglect of another is two years. (Code Civ. Proc., 335.1; Krebenios v. Lindauer (1917) 175 Cal.431.) The limitations period for seeking damages for injury to real property or personal property is three years. (Code Civ. Proc., 338(b), 338(c)(1).) Generally, a statute of limitations begins to run when a cause of action accrues, meaning when the cause of action is complete with all of its elements. (Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 139.)

First, Defendant Krus argued that the FAC’s claims for negligence and nuisance are time-barred as against her because the subsequent amendment substituting Krus in place of Doe defendant 8 does not relate back to the Complaint.

The court has discretion to permit any sort of amendment to the pleadings. However, if there is an issue of the statute of limitations, the amendment must relate back to the original complaint. An amendment relates back to the original complaint if the amendment: (1) rests on the same general set of facts; (2) involves the same injury; and (3) refers to the same instrumentality. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383,408-409; Harrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 150-151.) An amended complaint relates back to an earlier complaint if it is based on the same general set of facts, even if the plaintiff alleges a different legal theory or new cause of action. (Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 934, 936.) Once a plaintiff amends the complaint to name an individual in place of a Doe defendant, the amendment “relates back” to the date the original complaint was filed, and the newly named defendant is treated as though he was originally named in the timely filed complaint. (Streicher v. Tommy's Elec. Co. (1985) 164 Cal.App.3d 876, 882.)

“[I]t is now well established that even though the plaintiff knows of the existence of the defendant sued by a fictitious name, and even though the plaintiff knows the defendant's actual identity (that is, his name), the plaintiff is ‘ignorant’ within the meaning of the statute if he lacks knowledge of that person's connection with the case or with his injuries.” (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593-94.) Stated otherwise, “[t]he phrase ‘ignorant of the name of a defendant’ is broadly interpreted to mean not only ignorant of the defendant's identity, but also ignorant of the facts giving rise to a cause of action against that defendant.” (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170.)

In support of her moving arguments, Defendant Krus submitted sufficient evidence to establish the following. Plaintiff’s initial Complaint failed to assert a cause of action against her. (UMF Nos. 1-3.) Plaintiff filed the Original Complaint in this matter on February 22, 2017. (UMF No. 1.) About two and a half year years later after filing the Complaint, Plaintiff served Krus with the Dow amendment.

The FAC pleads only two causes of action against Defendant—negligence and nuisance. Defendant provides that while these two causes of action were included in the initial Complaint, they were not pled against Defendant because: (1) the Complaint’s claims were solely based on allegations that the Subject Unit’s owners negligently maintained the unit; (2) Krus neither was at any point, nor is, the owner of the Subject Unit; (3) the Complaint’s claims were asserted against Does 26 through 50, inclusive, whereas Krus submitted as Doe No. 8. (Memorandum ISO Mot., pp. 13:22-14:5; Separate Statement ISO Mot., UMF Nos. 1-10.) Thus, Defendant Krus argues that since the initial Complaint failed to state a cause of action against her, the FAC’s first cause of action for negligence and second cause of action for nuisance are time-barred as against her.

In addition, Defendant Krus argued that the FAC’s first and second causes of action are time-barred as against her because Plaintiff could have discovered Krus' identity with reference to readily available public information, making it more likely than not that upon filing the Original Complaint, he did not intend to bring claims against Krus and the Doe allegations was not made because he was unaware of her name at the time. (Memorandum ISO Oppo., p. 14:25-16:11.)

Defendant Krus goes on to add that the First Amended Complaint did not refer to Krus as a "previously named Doe 6 defendant," such that Plaintiff abandoned its designation of Krus as a Doe defendant. (UMF No. 6.) In support of her argument, that Plaintiff could have previously discovered Krus' identity and that he abandoned the Doe designation, Krus cites to Scherer v. Mark (1976) 64 Cal.App.3d 834, 841-842.

Second, Defendant Krus argued that, even assuming the amendment adding her to the operative pleading related back to the Complaint, is barred by the “discovery rule.” “An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citations.]” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.)

The applicable statute of limitation for Plaintiff’s negligence claim based upon exposure to a hazardous material or toxic substance is two years from the date of injury, or two years after the plaintiff reasonably should have become aware of the injury, its physical cause and sufficient facts to put a reasonable person on notice that the injury was caused or contributed to by the wrongful act of another. [Code Civ. Pro. 340.8.] A three-year statute of limitations applies to Plaintiff’’s nuisance claim. (Mangini v. Aerojet-Gen. Corp. (1996) 12 Cal.4th 1087, 1090.)

In support of this point, Defendant Krus asserts that in addressing the issue of “appreciable and actual harm,” the Complaint’s and FAC’s allegations alone demonstrate that Plaintiff's claims are time-barred. (Memorandum ISO Mot., pp. 17:8-184, 14:3-15:11; Defendant’s SS, UMF Nos. 11-24.)

Here, Defendant has not carried her burden to sustain her challenge to the operative pleading. For one, the Defendant makes a challenge to the pleading for the first time. A defendant's motion for summary judgment or summary adjudication “necessarily includes a test of the sufficiency of the complaint” and its legal effect is the same as a demurrer or motion for judgment on the pleadings. (See American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118; Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1375-1376, 1384; Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1244.)

Notably, such an argument was never raised by the Defendant as to the First Amended Complaint, and only now does she challenge the sufficiency of the Fifth Amended Complaint. Grounds for general demurrers are never waived (except those based on the statute of limitations), whereas all other grounds (i.e., grounds for special demurrers) are waived unless timely raised by demurrer. (Collins v. Rocha (1972) 7 Cal.3d 232, 239.) Further, an objection based on uncertainty of the pleading is waived if not raised by special demurrer. (People v. Torres (2011) 198 Cal.App.4th 1131, 1141; Drennan v. Star Paving Co. (1958) 51 Cal.2d 409, 417; Wade v. Markwell & Co. (1953) 118 Cal.App.2d 410, 418.) Hence, Defendant’s objections based on the statutes of limitations are deemed waived as the objections were not timely raised.

Accordingly, the motion is denied on these grounds.

3. Pertinent Allegations

According to the FAC, the Defendants Ringoickel, HOA, and BLN either owned, operated, managed, maintained, and/or were legally responsible for the Subject Unit, common areas and/or adjacent crawl space, or were otherwise entitled to receive rent for the use and occupancy of the Subject Unit. (FAC, 39.) Defendants Krus, among others, own an individual unit at the Property above and/or adjacent to the Subject Unit, as well as an undivided one-eleventh interest in the common areas of the Property as tenants in common. (Id., 40.) At all times relevant, Defendants owned, operated, managed, maintained, and/or were legally responsible for the common areas of the Property, including but not limited to pipes and other utility installations. (Id., 41.)

After taking possession of the Subject Unit, Plaintiff discovered various defects, including “water leaks; mold; dust mites; dilapidated plumbing and fixtures; leaking plumbing fixtures; defective shower pan; black mold and fungus in the walls; multiple additional violations of the California Building Standards and Health and Safety Codes; and various other unsafe, hazardous, and dangerous conditions.” (FAC 42.) These unsafe, hazardous, dangerous, and otherwise defective conditions existed prior to the beginning of Plaintiffs’ tenancy. (Id., 43.) Defendants allegedly had actual or constructive notice of said dangerous conditions or defects, prior to Plaintiff taking possession, yet failed and/or refused to disclose of their existence, and further failed to correct the conditions. (Id.)

In particular, the FAC alleges that Plaintiff’s exposure to mold at the Subject Unit made him sick and caused him to develop ill health effects such as asthma attacks, chronic obstructive pulmonary disease (C.O.P.D.), chronic fatigue, sinus infections, and so on. (FAC 47.) The Defendants allegedly had the means to correct the unsafe, hazardous, dangerous, and otherwise defective conditions prior to the beginning of Plaintiffs’ tenancy but failed and or refused to do so in order to maximize their profits and pecuniary gain. (Id., 45.)

Plaintiff further alleges that the Defendants’ inaction (i.e., intentionally failing to remedy the leaks and eliminate the effects of the moisture) intensified the adverse conditions and the damages sustained by Plaintiff and prolonged Plaintiff’s exposure to the mold. Plaintiff is suing Defendants within two years or less of his discovery that Defendants’ acts and omissions caused his personal injuries. (FAC 47.)

As is relevant here, the FAC asserts the first cause of action for negligence and the second cause of action for nuisance against Defendant Krus. In connection to the first cause of action, the FAC Defendants are responsible for the common areas at the Property,[3] and that Defendants, by virtue of their separate interests (i.e., their respective condominiums), owed Plaintiff a duty of care that they breached by intentionally failing to remedy the leaks and eliminate the effects of the Subject Unit’s moisture. (Id., p. 10:19-21, 10:26-28.) Thus, the FAC alleges that the Defendants negligently maintained the Property’s common areas and their respective condominiums which proximally cause Plaintiffs’ injuries.

Last, the FAC’s second cause of action for (private) nuisance alleges that the alleged dangerous conditions (i.e., leaking and mold, among other things) were injurious to Plaintiff’s health and indecent and offensive to his sense and interfered with Plaintiff’s comfortable and quiet enjoyment of the Subject Unit. (FAC 57-59.)

4. Negligence (1st Cause of Action & Issue No. 1)[4]

Defendant moves for summary judgment/adjudication on the FAC’s first cause of action for negligence, on the grounds that Plaintiff has not, and cannot reasonably obtain evidence, to establish: (1) that Defendant owed any duty to Plaintiff to repair the water damage in the Subject Unit; (2) that Defendant breached a duty owed to Plaintiff; and (3) that any breach of duty by Defendant was the proximate or legal cause of the resulting injuries.

To support a claim for negligence, a plaintiff must allege facts showing a legal duty to use due care, breach of the duty, causation, and damages. (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618.) “ ‘An owner is required to exercise ordinary care to render his premises reasonably safe for use by invitees thereon. [Citations.]’ ” (Markewych v. Altshules (1967) 255 Cal.App.2d 642, 645-646, quoting Powell v. Vracin (1957) 150 Cal.App.2d 454, 456.) It is well established that a property owner is not liable for damages caused by a minor, trivial or insignificant defect in property. (Caloroso, supra, 122 Cal.App.4th at 927.) If a condition presents an unreasonable risk of injury to those who encounter it, it is dangerous, and an owner is "under a duty to exercise ordinary care either to make the condition reasonably safe for their use or to give a warning adequate to enable them to avoid the harm." (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.)

Generally, a landowner may only be held liable for an injury caused by a dangerous condition of which the owner (1) has actual knowledge, (2) has control over, and (3) has ability to eliminate the condition. (Leakes v. Shamoun (1986) 187 Cal.App.3d 772, 775-779; Rosales v. Stewart (1980) 113 Cal.App.3d 130, 134; Garcia v. Holt (2015) 242 Cal.App.4th 600, 605.)

Moreover, the California Supreme Court previously identified several factors to consider in assessing whether a landowner has a legal duty: “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, 26, citing Rowland v. Christian (1968) 69 Cal.2d 108, 113.) “The Rowland factors determine the scope of a duty of care whether the risk of harm is situated on site or off site.” (Barnes v. Black (1999) 71 Cal.App.4th 1473, 1479, citation omitted.)

With respect to causation, the required element of legal causation has two components: “cause in fact and proximate cause.” (S. Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (2015) 61 Cal. 4th 291, 298.) Although causation often presents a question of fact for the jury, “where the facts are such that the only reasonable conclusion is an absence of causation, the question is one of law, not of fact.” (State Dep’t of State Hosps. v. Super. Ct. (2015) 61 Cal. 4th 339, 353 (internal quotation marks omitted).) The law imposes additional limitations on liability because the factual causes of an event may be traced far into the past. Those additional limitations relate not only to the degree of connection between the conduct and the injury, but also to public policy. (Id.) The doctrine can bar liability even when the defendant’s conduct is a factual cause of harm, depending on the manner in which the injury occurred or the extent to which the ultimate harm is attenuated from the breach of duty alleged. (Id.; see also PPG Indus., Inc. v. Transamerica Ins. Co. (1999) 20 Cal.4th 310, 315 [“To simply say . . . that the defendant’s conduct was a necessary antecedent of the injury does not resolve the question of whether the defendant should be liable.”].)

4.1. Defendant’s Moving Arguments

Defendant Krus first argued that she had/has no ability or duty to maintain the Subject Unit. This is partly premised on the Defendant’s assertion that Plaintiff attempts to impute liability to Krus by virtue of her being a member of the HOA, a separate incorporated entity. (UMF No. 18.) Defendant Krus maintains that she is not liable pursuant to the CC&Rs or by virtue of her former membership in the Property’s HOA. In support of her arguments, the Defendant submitted sufficient evidence to establish the following.

Any recourse for Plaintiff’s injuries due to the uninhabitability of the premises lies with Ringo. (UMF No. 7.) Plaintiff entered into a lease, a contractual relationship, with Defendant Ringo, not Krus, for the rental of the Subject Unit 11.

The Defendant goes on to note that Plaintiff’s discovery responses did not contain any facts describing specific acts or omissions by Krus specifically that he alleges to have caused him harm. (UMF 16.) In addition, the only documents Plaintiff identifies to suggest Ms. Krus was negligent in any respect are the CC&Rs and communications between Plaintiff and other parties. (UMF Nos. 16 and 19.) There are no documents offered in which Krus is the author or recipient. (UMF Nos. 19-20.) Defendant takes the position that since Plaintiff can offer no facts to suggest that any water leaking from Ms. Krus' unit or anything Ms. Krus did or did not do resulted in Plaintiff’s injuries, Plaintiff is admittedly imputing liability on Krus solely by virtue of her being a member of the HOA. (UMF No. 17, 18.) However, pursuant to the CC&Rs and governing statutes, the HOA, not Krus, has the duty to repair and maintain the common areas. (UMF No. 15.)

Moreover, Defendant Krus claims that Plaintiff cannot hold Krus liable for any alleged acts or omissions of the HOA, as the HOA is a separate corporate entity from its members. (UMF Nos. 11-15.) An HOA is specifically "created for the purpose of managing a common interest development." [Civil Code 4080.) It is the HOA, not the individual owners, who have a duty and ability to oversee and control the common areas. The HOA is an incorporated association formed pursuant to the Davis-Stirling Act that has the responsibility for managing, controlling and repairing the Building and common areas. (UMF. No. 15.) For this reason, the court in White v. Cox, noted that for purposes of tort liability, a condominium association and the unit owners are considered separate legal entities. (White v. Cox (1971) 17 Cal.App.3d 824.)

Another case exemplifying the separateness of the HOA and its members is ECC Const., Inc. v. Ganson, in which a building contractor hired by the condominium association brought suit against the individual condominium owners as well as the condominium association. The court granted summary judgment in favor of individual condominium owners. (ECC Const., Inc. v. Ganson (2000) 82 Cal.App.4th 572.)

Moreover, statutes have been enacted that impose the duty of repairing, replacing, and maintaining the common area squarely on the HOA. (Civ. Code, 4080, 4775.) Civ. Code, section 4775, provides that "unless otherwise provided in the declaration of a common interest development, the association is responsible for repairing, replacing, and maintaining the common areas." As is relevant here, Krus is forbidden by the CC&Rs from modifying the common areas. (UMF No. 14.)

In Dover Village Assn. v. Jennison, the court granted summary judgment in favor of a unit owner when the HOA brought claims against him for a leaky sewer pipe beneath his unit, finding that pipe systems are considered common area which the HOA has the duty to repair and maintain. (Dover Village Assn. v. Jennison (2010) 191 Cal.App.4th 123, 125.)

Thus, Defendant argues that she is not liable pursuant to the CC&Rs or by virtue of her former membership in the Property’s HOA.

Second, Defendant Krus argued that even if she could be charged with some duty to maintain the common areas, Plaintiff can present no evidence that anything Krus did or failed to do contributed to Plaintiff’s injuries. (Memorandum ISO Reply, pp. 9:21-11:21.) Namely, Krus claims that Plaintiff cannot establish that (1) Defendant had control over the Subject Unit, or (2) that Defendant had actual knowledge, control over, and the opportunity to eliminate the alleged dangerous conditions.[5] Defendant submitted sufficient evidence to establish the following.

Defendant Krus purchased Unit 3 at the Property shortly before Plaintiff rented Unit 11 from Ringo in October 2007. She is not Plaintiff’s landlord or otherwise had any control over the Subject Unit. (UMF Nos. 11-15.) As discussed above, it is the HOA's duty to maintain the common areas. Krus has no duty with respect to the maintenance of the common areas. (Id.)

Plaintiff has no evidence that Krus acted unreasonably, that her conduct fell below the standard of care, or that her conduct caused the leaks and resulting damages in Unit 11 during Plaintiff's 12 tenancy. (UMF Nos. 16-24.) Plaintiff cannot establish that Defendant even knew about the presence of mold in the Subject Unit, let alone toxic mold.

To the extent that Defendant Krus has a duty to maintain Unit 3, she argues that there is no evidence that she breached any such duty. ((UMF Nos. 16-24.) During his first year in Unit 11, Plaintiff reported noticing that a portion of the carpet in his living room was indented and lacked padding underneath, resulting from what he believed were repeated leaks in the same indented spot. (UMF No. 26.) Moreover, Plaintiff admitted to personally experiencing water intrusion two to three times a year each year from the ceiling and other plumbing fixtures over a period of at least five years; Plaintiff claims that these leaks re-appeared despite repeated repairs. (UF Nos. 27-29.)

However, Defendant Krus maintains that she never had a single conversation or communication with Plaintiff, that Plaintiff never spoke to Krus about water intrusion into the Subject Unit, and that Plaintiff never asked Krus to make any repairs. (UMF 21-23.) Krus was entirely unaware of any water damage or issues with leaks into the Subject Unit. (UMF 24.)

Plaintiff claims to have been, totally unaware of the presence of mold until a July 2016 report revealed its presence - four years after Krus was no longer living there. (Krus Decl., 2.) Defendant inquires as to how she can somehow be assumed to have known about the presence of mold and breached a duty to do something about it when Plaintiff only became aware of the presence of mold four years after Krus was no longer living there. (Ibid.) Plaintiff, has produced no documents relating to Krus' personal conduct (UMF 19), and the only document Plaintiff produced to support his claim that Krus created a nuisance is her deed to Unit 3. (UMF 20.)

Based on the foregoing, Defendant Krus argues that Plaintiff has not and cannot reasonably obtain evidence to establish Krus breached any duty or participated in the creation of a nuisance

Third and last, Defendant Krus argues that Plaintiff has not and cannot reasonably obtain evidence to establish causation as to Defendant Krus. This point relied on and repeated identical facts discussed above, which the Court briefly summarizes. Krus, as an individual unit owner, claims that she cannot be said to have any duty to "manage, control or supervise the common areas." Plaintiff does not even allege what the measures are that Defendant should have taken. Without any specific action or inaction alleged, there is no way to tie that action or inaction to Plaintiff’s injuries and thus no way to establish causation, a necessary element of Plaintiffs claims. The only action the FAC suggests is that Defendant failed to repair the allegedly harmful conditions, an action she could not have taken by virtue of the CC&Rs and existing law. (Memorandum ISO Mot., pp. 11:22-12:23.)

Defendant claims that, even assuming arguendo that Krus owed a duty to protect Plaintiff or to prevent harm to him, the FAC alleges no specific conduct or inaction of the Defendant as a factor in Plaintiff’s injuries. This omission is fatal to Plaintiff’s case, according to Defendant Krus. (Memorandum ISO Mot., p. 12:8-23.)

Here, Defendant’s evidence, that Defendant was not responsible for maintaining the Subject Unit or common areas and/or that Plaintiff cannot identify any specific acts or omission attributed to Defendant, meet the Defendant’s burden under Code Civ. Proc., section 437c(p), because it would allow a reasonable trier of fact to find that it is more likely that Defendant did not owe Plaintiff a duty of care because she neither maintained/own the Subject Unit, and the plumbing pipes leading to Defendant’s separate interest (Unit 3) are a common area that the HOA was responsible for.

Further, the Defendant’s evidence meets her burden because it would allow a reasonable trier of fact to find that it is more likely than not that Defendant’s maintenance of her separate interest (Unit 3) and the Subject Unit’s and/or adjacent crawl space’s dangerous conditions (i.e., the formation of toxic mold) are so remote that, as a matter of law, Defendant’s acts/omissions were not the proximate or legal cause of the Plaintiff’s injuries. Namely, the evidence shows that Plaintiff seeks to extend liability to Defendant based on the maintenance of Property’s plumbing system/pipes, a common area

Once a defendant meets its burden, the burden shifts to plaintiff to prove the existence of a triable issue of fact regarding that element of its cause of action or that defense. If plaintiff is unable to do so, defendants are entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781; Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468, (citing text).)

4.2. Plaintiff’s Opposing Arguments

In opposition, Plaintiff argued that there are disputes of material fact as to: (1) whether the HOA carried sufficient insurance coverage to confer immunity to the HOA members pursuant to Civ. Code, 5805; (2) the source(s) of the various water intrusions into the Subject Unit; and (3) the source(s) of the various water intrusions into the crawl space/parking garage adjacent to the Subject Unit.

With respect to the first point above, Plaintiff takes the position that Defendant is liable independent of any direct acts of negligence because the HOA did not maintain sufficient insurance coverage to confer immunity to its members pursuant to Civ. Code, section 5805. (Memorandum ISO Oppo., pp. 9:17-12:10.) To that end Plaintiff relies on the proposition that individual owners of separate interests in a common interest development will be held jointly and severally liable for any tortious acts or omissions causing injuries to persons within or emanating from the common area of the property. (Ruoff v Harbor Creek Community Assn (1992) 10 Cal.App 4th 1624, 1630; Davert v. Larson (1985) 163 Cal.App.3d 407, 412.)

Civ. Code, section 5805 (formerly Civ. Code, 1365.9), sets out the precise requirements and conditions that must be met in order for individual owners in a common interest development to enjoy such protection. (Civ. Code, 5805(a), (b)(2)(A).) Plaintiff maintains that neither requirement for immunity under Civ. Code, section 5805 is met here. As a result, Plaintiff claims that each individual owner Defendant, including Defendant Krus, remains jointly and severally liable for the tortious mismanagement of the property that caused and/or contributed to Plaintiff’s injuries. Plaintiff also asserts that Defendant Krus concedes that the common areas of the Property were negligently managed and concedes that such negligence caused Plaintiff’s injuries. (P’s ADF No. 4-13.)

Of course, Plaintiff’s argument is premised on the Defendant’s liability (i.e., the existence of a duty and its breach). A court will usually address the issue of duty or liability before addressing immunities. (Masters v. San Bernardino County Employees Retirement Ass'n (1995) 32 Cal.App.4th 30, 43; Richardson v. Department of Motor Vehicles (2018) 25 Cal.App.5th 102, 110 fn. 4].)

In connection to the Defendant’s alleged liability, Plaintiff introduced sufficient evidence to establish the following. Throughout Plaintiff’s tenancy, the Subject Unit and Property experienced constant leaks and moisture issues, resulting, in part, from the Property’s dilapidated and overburdened plumbing system. (P’s ADF Nos. 8-13). The Property, which was constructed in the 1970s, still has its original plumbing system. (P’s ADF No. 8) The plumbing pipes are two-inch in diameter rather than the current specifications of three-inch pipes. (P’s ADF No. 9) The HOA’s PMQ estimated that the Property’s plumbing pipes required at least 20 repairs between 2015 and 2019. (P’s ADF No. 10)

According to the HOA’s PMQ, the plumbing pipes are “an ongoing problem” and the “whole building needs to be re-piped.” (P’s ADF No. 11) At all relevant times, the plumbing system for the Property was in a state of complete disrepair, evidencing inadequate drainage, poorly sloped drain lines, and inadequate sealing and repair attempts. The defective and degraded state of the plumbing system resulted in the formation of mold and other hazardous living conditions inside Plaintiff’s unit and the adjacent crawl space. (P’s ADF No. 12) The plumbing lines that run into the individual units at the Property and fixtures contained therein, are likewise defective and in a state of disrepair that caused and/or contributed to the formation of mold and other hazardous living conditions inside Plaintiff’s unit and the adjacent crawl space. (P’s ADF No. 13)

In continuation, Unit 3 is on the ground floor of the Property, above Plaintiff’s unit and directly above the crawl space adjacent to the Subject Unit. (P’s ADF No. 14). Plaintiff notified the HOA and BLN that the Subject Unit had serious water leak and mold issues, e.g., “Mushrooms are growing out of the ceiling and my asthma for the last 2 weeks has been very severe. It’s becoming a scary health issue.” (P’s ADF No. 4.) According to Plaintiff’s expert, some of the water intrusions into Unit 11 and the crawl space adjacent to Unit 11 originated from within Unit 3. (P’s ADF Nos. 12-15).

After having the Subject Unit inspected on June 14, 2016 and June 21, 2016, Plaintiff learned for the first time upon receipt of the results of these inspections that the Subject Unit and its adjacent crawl space contained elevated levels of dangerous toxic molds. (P’s ADF No. 5) On July 19, 2016, Plaintiff visited Dr. Ho with persistent complaints of asthma and chest pain. At Dr. Ho’s recommendation, Plaintiff underwent an allergy blood test, the results of which, informed Plaintiff for the first time that his health ailments were likely related to exposure to toxic mold in his unit. (P’s ADF No. 6)

Therefore, Plaintiff argues that the HOA failed to maintain the Property in a reasonably safe condition so as to avoid exposing Plaintiff to an unreasonable risk of injury. In that respect, then, Plaintiff asserts that Defendant is liable independent of any direct acts of negligence because the HOA did not maintain sufficient insurance coverage to confer immunity to its members pursuant to Civ. Code, section 5805.

Second, Plaintiff argued that Defendant’s evidence failed to meet her burden on summary judgment of either (1) rebutting a cause of action with affirmative evidence, or (2) showing both that the Plaintiff has no evidence, and that the Plaintiff cannot obtain any such evidence. As to the former, Plaintiff argues that Defendant Krus does not once allege as an undisputed fact that the water intrusions in Plaintiff’s unit or the adjacent crawl space did not originate in her unit, and so on. With respect to the latter, Plaintiff argues that Defendant’s only argument is that Plaintiff was not able to confirm in his deposition that the water intrusions originated from Unit 3, which Plaintiff asserts fails to meet Defendant’s burden. (Memorandum ISO Oppo., pp. 12:11-13:25.)

Plaintiff adds that there is evidence that some of the water intrusions into the Subject Unit and the adjacent crawl space originated from within Defendant Krus’ unit. Namely, the Hughes Decl. purports to establish that that numerous leak and/or drainage complications that originated in Defendant’s Unit 3, affected the Subject Unit and its adjacent crawl space. (P’s ADF Nos. 13-15, 17-18).

In the alternative, Plaintiff makes a request to the Court for continuance of the instant motion’s hearing so Plaintiff can complete specified discovery, including the inspection of the Property, Unit 3, and other matters. (Memorandum ISO Oppo., pp. 17:12-25.) Plaintiff informs the Court that he has yet to inspect Defendant’s Unit 3 in order to conclusively determine the exact source(s) of the various water intrusions into the Subject Unit and the adjacent crawl space. (Id., p. 13:18-25.)

Here, the Court finds that Plaintiff’s evidence, that the some of the leaks into the Subject Unit and the adjacent crawl space originated from Unit 3, meets his burden under Code Civ. Proc., section 437c(p) for the following reasons. Mainly, Plaintiff’s proof creates a triable issue of material fact because it sufficiently support’s the Plaintiff’s position that the individual units caused and/or substantially contributed to the formation of mold inside the Subject Unit and/or the adjacent crawl space. (P’s ADF No. 13.) Defendant’s Unit 3 is located on the ground floor and is directly above the crawl space adjacent to the Subject Unit. (P’s ADF No. 14.)

Moreover, Mr. Hughes, a Senior Construction Manager, provides in his declaration that based on his two visual inspections of the Property, it is his opinion to a reasonable degree of certainty that:

(1) the defective and degraded state of the Property’s plumbing system resulted in the formation of mold and other hazardous living conditions inside the Subject Unit and the adjacent crawl space;[6]

(2) the plumbing lines that run into the individual units at the Property and fixtures contained therein, are likewise defective and in a state of disrepair that caused and/or contributed to the formation of mold and other hazardous living conditions inside the Subject Unit and the adjacent crawl space;[7] and

(3) some of the water intrusions into the Subject Unit and the adjacent crawl space originated from within Unit 3. Based on his review of relevant correspondence, repair invoices, insurance claim records and photographs from within Unit 3, Hughes declares that there have been several active leaks and/or drainage complications within Unit 3, some of which caused and/or contributed to the water intrusions in Unit 11 and the adjacent crawl space.[8]

Furthermore, Hughes provides that in order to conclusively determined the exact source(s) of the various water intrusions into the Subject Unit and the adjacent crawl space, he will require additional inspection and testing of the Property, including among other things, entrance and inspection of each of the units above the Subject Unit and the adjacent crawl space. (Hughes Decl., 10.) The evidence provided by the Hughes Decl., is sufficient to support Plaintiff’s position that Defendant’s unit contributed to the water intrusion(s) into the Subject Unit or adjacent crawl space such that any failure by Defendant to maintain Unit 3 may have negligently and proximally caused to the development of mold. The same evidence also goes to show that Plaintiff can reasonably obtain evidence to establish the element of causation, duty, and breach. Likewise, the evidence is sufficient to create a triable issue of fact as to Defendant’s control of the source of the leaks.

Hence, Plaintiff’s proof controverts Defendant’s evidence and creates a triable issue of material fact as to causation. By extension, the issue of causation is material to whether Defendant owed Plaintiff a duty of care, whether that duty was breached, and whether Defendant is liable (i.e., notice, control, and ability to eliminate the alleged dangerous conditions).

Second, Plaintiff is correct to point that Defendant did not address whether the HOA carried sufficient insurance coverage to confer immunity to the HOA members pursuant to Civ. Code, section 5805.

In reply, Defendant maintains that under Civ. Code, section 4775, she has no duty to maintain/repair the Property’s common area. Defendant, though, does not offer some additional evidence to controvert Plaintiff’s evidence as to causation (leaks originating from Unit 3) which goes to duty as well as liability (i.e., notice, among other things). (Memorandum ISO Reply, p. 2:18-24.)

Therefore, the Court finds that the Plaintiff has met his burden to make a prima facie showing that one or more triable issues of material fact exist as to the element of causation, duty, breach, and liability.

Accordingly, the motion for summary judgment is denied. The motion for summary adjudication as to this cause of action is denied.

5. Nuisance (2nd Cause of Action & Issue No. 2)

Defendant moves for summary judgment/adjudication on the FAC’s second cause of action for nuisance, on the grounds that Plaintiff cannot establish causation to show negligence.

“A private nuisance cause of action requires the plaintiff to prove an injury specifically referable to the use and enjoyment of his or her land.” (Adams v. MHC Colony Park L.P. (2014) 224 Cal.App.4th 601, 610.) An action for private nuisance requires proof of a “substantial” and “unreasonable” interference with the use and enjoyment of private property which causes “substantial actual damage” to plaintiff. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938.) The interference must be “of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Id.) “[T]o establish claim for nuisance, the plaintiff must prove that the defendant ‘by acting or failing to act, created a condition that ... was harmful to health [or other enumerated conditions]’”. (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1552, citation omitted, emphases and italics added.)

According to the FAC, the Subject Unit’s and Property’s alleged dangerous conditions constituted a private nuisance within the meaning of Civ. Code, sections 3479 and 3481. (FAC 58.) The alleged dangerous conditions were caused by Defendants’ failure to act/omissions. (Id., 59.)

In support of their arguments in connection to the nuisance claim, Defendant and Plaintiff relied on similar if not identical evidence furnished in support of their arguments for the first cause of action for negligence. (See Memorandum ISO Mot., pp. 9:21-12:23; see also Memorandum ISO Oppo., pp. 9:10-13:25.)

For the reasons discussed above and based on the evidence presented herein, the Court likewise concludes that Plaintiff met his burden to make a prima facie showing that one or more triable issues of material fact exist as to the element of causation. The Hughes Decl. has controverted Defendant’s proof that Plaintiff has not and/or cannot reasonably obtain evidence to establish that Defendant’s separate interest (Unit 3) was a proximate cause of the alleged dangerous conditions at the Subject Unit and/or adjacent crawl space’s dangerous conditions (i.e., the formation of toxic mold). Therefore, the Court finds that the Plaintiff has met his burden to make a prima facie showing that one or more triable issues of material fact exist as to the element of causation.

Accordingly, the motion for summary adjudication is denied as to this cause of action.

In sum, the Court finds that the Plaintiff has met his burden to make a prima facie showing that one or more triable issues of material fact exist in connection to the FAC’s first and second causes of action. (Code Civ. Proc., 437c(p)(2).) Therefore, the Defendant’s motion and “all the papers submitted [do not] show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., 437c(c) (emphasis added).)

Conclusion

Accordingly, Defendant Cheri Krus’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication is DENIED. (Code Civ. Proc., 437c(c), 437(f)(1).) I



Case Number: ****7112 Hearing Date: March 17, 2022 Dept: 207

Background

This action involves a personal injury from toxic mold. Plaintiff sued Defendants for eight causes of action relating to Plaintiff’s alleged damages sustained during his tenancy at 1508 12th Street, Unit 11, Santa Monica, California 90401 from October 10, 2007, through February 20, 2017.

Defendant David Resnik now files this motion for leave to file a cross-complaint against Defendants Fifteen Zero Eight Twelfth Street Homeowners Association, BLN Property Management, Inc., and Mark Ringo.

Analysis

CCP 428.50 provides for the filing of cross-complaints and when leave of the court is required for such filing:

(a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint.

(b) Any other cross-complaint may be filed at any time before the court has set a date for trial.

(c) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action.

CCP 428.50.

“A counter-claim may arise out of the transaction set forth in the complaint as the foundation of plaintiff’s claim, and if it does the defendant must set it up or be forever barred.” (Tomales Bay Oyster Corp. v. Superior Court in and for City and County of San Francisco (1950) 35 Cal.2d 389, 393 (internal citations omitted).)

Here, Defendant seeks leave to file a cross-complaint against Fifteen Zero Eight Twelfth Street Homeowners Association, BLN Property Management, Inc., and Mark Ringo alleging equitable indemnity, contribution, and apportionment.

“A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result. Factors such as oversight, inadvertence, neglect, mistake, or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith.” (Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98–99.)

Because no bad faith has been shown here, the Court grants Defendant’s motion for leave to file the cross-complaint.

Conclusion

The Court GRANTS Defendant’s motion for leave to file the cross-complaint.



Case Number: ****7112 Hearing Date: March 8, 2022 Dept: 207

Background

This case involves Plaintiff’s exposure to mold while living in an apartment building. Plaintiff sued Defendants for eight causes of action relating to Plaintiff’s alleged damages sustained during his tenancy at 1508 12th Street, Unit 11, Santa Monica, California 90401 (“the subject property”) from October 10, 2007, through February 20, 2017.

Defendant Cheryl Barnett filed this motion for summary judgment.

Evidentiary Objections

The Court OVERRULES Defendant’s objections to the declaration of Jeff Hughes, GC, CCBI, STSC, numbers 1, 2, 3, 4, 5.

The Court OVERRULES Defendant’s objections to the declaration of Plaintiff Billy Ray Gallion numbers 1, 2, 3, 4.

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure (“CCP”) section 437c(c) “requires the trial judge to grant summary judgment if 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.)

As to each claim as framed by the complaint, the moving party must satisfy the initial burden of proof by presenting facts proving the essential elements of a cause of action, negating the essential elements of a cause of action, or establishing a defense. (CCP 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the moving party has met that burden, the burden shifts to the opposing party to show a triable issue of one or more material facts exists as to that cause of action or a defense thereto. 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.)

Analysis

Defendant argues the motion for summary judgment should be granted because Plaintiff is time-barred from making claims against Defendant and Defendant cannot be held liable because Defendant does not owe Plaintiff a duty of care.

Statute of Limitation

The statute of limitations for bodily injury caused by the wrongful act or negligence of another is two years. (CCP section 335.1.) The statute of limitations for seeking damages for injury to real property or personal property is three years. (CCP section 338(b); section 338(c)(1).)

Defendant argues the action is time-barred because Plaintiff’s initial complaint failed to state a cause of action against Defendant.

The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing of the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” Woo v. Superior Court (1999) 75 Cal. App. 4th 169, 176.

“Among the requirements for application of the section 474 relation back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint.” Id. “A further and nonprocedural requirement for application of the section 474 relation-back doctrine is that [Plaintiff] must have been genuinely ignorant of [Defendant Doe’s] identity at the time she filed her original complaint. The omission of the defendant’s identity in the original complaint must be real and not merely a subterfuge for avoiding the requirements of section 474. Furthermore, if the identity ignorance requirement of section 474 is not met, a new defendant may not be added after the statute of limitations has expired even if the new defendant cannot establish prejudice resulting from the delay. However, if the plaintiff is actually ignorant of the defendant’s identity, the section 474 relation-back doctrine applies even if that ignorance is the result of the plaintiff's negligence.” Id. at 177. See also Optical Surplus, Inc. v. Superior Court (1991) 228 Cal. App. 3d 776, 779-82.

Defendant contends because the two causes of action for negligence and nuisance were not pled against Defendant, subsequent amendments do not relate back to the date of the original complaint. Defendant argues DOES 1 through 16 were omitted from the FAC. Defendant also argues Plaintiff named Defendant as a new party without being identified as formerly added Defendant Doe 15.

Defendant argues the relation back doctrine should not apply here because Plaintiff has not strictly complied with the procedure for substituting a named defendant for a fictitious Doe defendant. (See Scherer v. Mark (1976) 64 Cal.App.3d 834, 842-843; Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1144.)

The Court finds, however, that noncompliance with the requirements of CCP 474 does not necessarily bar application of the relation back doctrine. (Woo v. Superior Court (1999) 75 C.A.4th 169 (Woo).) For example, in Woo, plaintiff amended the complaint to add defendant without identifying defendant as a substitute for a previously added fictitiously named defendant. Plaintiff also served summons on defendant, identifying defendant as an individual defendant, not as a defendant previously sued under a fictitious name. The court there held the defect did not bar application of the relation back doctrine. “[T]he courts of this state have considered noncompliant with the party substitution requirements of section 474 as a procedural defect that could be cured and have been lenient in permitting rectification of the defect.” (Woo, supra, 75 Cal.App.4th at 177.) That court reasoned that because the plaintiff would be allowed to allege defendant is a defendant substituted for a fictitious Doe defendant named in plaintiff’s original complaint, the court refused to foreclose consideration of plaintiff’s relation back contention. (Ibid.)

Upon the Court’s review of the pleadings, the Court finds Plaintiff should be allowed to allege Defendant is a defendant substituted for a fictitious Doe defendant named in Plaintiff’s original complaint. The circumstances here are like those in Woo, Plaintiff’s second amended complaint listed Defendant as an individual defendant and not a defendant substituted for a fictitious Doe. Plaintiff can correct this error through further amendment. Accordingly, the Court finds Plaintiff’s causes of action relate back for purposes of determining the statute of limitations.

Defendant also argues the negligence and nuisance claims are time-barred because the water intrusion pre-date Defendant’s ownership of unit 4. Defendant contends Plaintiff’s health condition started as early as 2012 and 2013. Defendant purchased the unit on or around December 2016.

In the Opposition, Plaintiff argues Plaintiff was not put on notice of the existence of the claims until July 2016, when Plaintiff discovered that the water intrusions caused mold to grow. Plaintiff further contends that while Plaintiff slept in the car due to the health problems, Plaintiff still frequented the apartment.

The Court agrees that, at this stage, Defendant has not met the burden to show there is no triable issue of material fact that Plaintiff’s claims are time-barred. It is too early for this Court to determine whether Plaintiff’s claims arose in 2012 or 2016. That is a question of fact. Notwithstanding Plaintiff’s purchase of a humidifier, a trier of fact may determine July 2016 is the date Plaintiff was put on notice of Plaintiff’s claims. Here, the Court finds Defendant has not met Defendant’s burden to support a grant of Defendant’s motion for summary judgment.

Accordingly, the Court finds there remains an issue of material fact as to when Plaintiff’s claims arose.

i. Delayed Discovery Rule

Under the delayed discovery rule, which is an exception to the statute of limitations, “suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) The key inquiry is when did a “plaintif[f] have reason to at least suspect that a type of wrongdoing has injured them.” (Id. at 807.) “The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action.” (Id.) “[P]laintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation.” (Id.)

“In order to rely on the discovery rule for delayed accrual of a cause of action, “[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.” (Id. at 808.) “In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to show diligence; conclusory allegations will not withstand demurrer.” (Id, emphasis added.)

Defendant argues Plaintiff should have been aware of Defendant’s ownership interest in Unit 4 or the common areas because of the publicly available grant deeds and the CC&Rs citing common area ownership. Defendant also argues Plaintiff was on notice to investigate because Plaintiff knew or should have known there was some connection between this lawsuit and Defendant by May 21, 2017.

Plaintiff argues Plaintiff was not put on notice until July 2016. Plaintiff contends learning that the water damage caused dangerous mold to grow and enter Plaintiff’s bloodstream at that time. (Plaintiff’s ADF Nos. 4-6.) Plaintiff also argues the complaint was amended to name Defendant in place of a Doe Defendant once Plaintiff discovered the HOA did not maintain adequate insurance and discovered information following the September 2019 inspection. These facts gave rise to Plaintiff’s claims against Defendant. (Plaintiff’s ADF Nos. 1-3, 19.)

Here, the Court finds Defendant has failed to put forth evidence to establish there is no triable issue of material fact as to when Plaintiff discovered both the cause of harm and that the cause of harm resulted from Defendant’s wrongdoing. Plaintiff argues, and the Court agrees, that Defendant is asking the Court to speculate as to the date Plaintiff would have known both the cause of harm and that the harm resulted from negligent conduct. Thus, Defendant has failed to meet Defendant’s burden to support a grant of summary judgment.

Accordingly, the Court finds there remains issues of material fact as to the date Plaintiff discovered both the cause of harm and that the cause of harm resulted from wrongdoing.

Negligence and Nuisance Causes of Action

“The essence of a private nuisance is an interference with the use and enjoyment of land.” (Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 160.) Thus to allege a cause of action for private nuisance, the plaintiff must allege injury specific to the use and enjoyment of his land. (See Adams v. MHC Colony Park Limited Partnership (2014) 224 Cal.App.4th 601, 610.)

Whether the interference is substantial and unreasonable is a question of fact requiring determination of all the circumstances of the case. (See Mendez v. Rancho Valencia Partners, LLC (2016) 3 Cal.App.5th 248, 263-64.)

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

Defendant argues that for both the negligence and nuisance claims, Plaintiff must prove Defendant’s conduct either fell below a certain standard of care or that Defendant acted unreasonably in causing a nuisance.

Defendant argues Defendant is not Plaintiff’s landlord, and thus had no duty or ability to maintain Unit 11. Defendant contends it is the HOA’s duty to maintain the common areas, not Defendant’s.

Defendant also argues if there is a duty to maintain Defendant’s unit, Plaintiff has not provided evidence indicating Defendant breached that duty. Defendant contends Plaintiff is unable to identify the source of any leaks or when the leaks occured. Defendant argues Plaintiff admits living in a car and moved out of Unit 11 as of at least July 2016, five months before Defendant became the owner of unit 4.

Defendant argues owners have no duty to maintain and repair common areas as a matter of law under the CC&Rs. That is allegedly the HOA’s duty. Defendant contends the HOA is “created for the purpose of managing a common interest development. (CCP section 4080.) Defendant also argues pipe systems are considered part of the common area. (Dover village Assn. v. Jennison (2010) 191 Cal.App.4th 123, 178-179.)

In Dover, the condominium association brought action against the unit owner, alleging that owner was responsible for costs of repairing leaking sewer pipe underneath the unit. The court held the portion of piping connecting the defendant’s condo with the sewer system is not an exclusive use common area. The court argued this is confirmed by language in the CC&Rs which define common areas as areas to which owners generally have access. Dover is in the context of the Davis-Sterling Act. The Act provides that a homeowner’s association is responsible for repairs to common areas, but the individual unit owner is responsible for repairs to any exclusive use common area appurtenant to the separate interest. (Civil Code section 1364(a).) The court was persuaded by the fact that, under the CC&Rs, the sewer pipes are not within any individual owner’s separate interest.

Plaintiff argues Defendant is liable, notwithstanding direct acts of negligence, because the HOA did not maintain sufficient insurance coverage to confer immunity to its members pursuant to Civil Code section 5805. Defendant does not argue section 5805 confers immunity from liability, rather, Defendant argues the HOA admits it has the responsibility for repairing and maintaining all common areas. Defendant also contends the HOA assumed the responsibility of repairing the common areas with respect to the leaks in Unit 11. (SSUMF 32, 35, 37, 38, 39, 55, 56, 59, 66, 67, 77.)

Upon review, the Court finds it is unclear whether Defendant had the requisite control over maintaining and repairing the pipes. While the Defendant argues the HOA had the requisite control, Defendant’s evidence does not establish a lack of a genuine issue of material fact that Defendant did not have control over the pipes.

It is also unclear to the Court, at this stage, where the purported leak occurred between Defendant’s residence and the common pipes. Plaintiff argues Defendant has not allowed an inspection to occur of the pipes. Plaintiff contends that the Defendant’s evidence does not establish water did not enter from Defendant’s unit. Defendant provides references to several repair invoices and email correspondences regarding water intrusions that do not identify unit 4 is the source of the leaks. Plaintiff further argues these leaks were active when Defendant purchased the unit, Defendant knew of the leaks, and Defendant failed to take corrective action. (Plaintiff’s ADF numbers 12-16.)

Accordingly, it is not the case that Dover necessitates the grant of summary judgment or adjudication with the factual evidence before the Court because here the source of leaks is not established as the common area pipes. Therefore there are genuine issues of material fact related to whether Defendant had the capacity to breach any legal duty or the capacity for Defendant to commit unreasonable acts.

Accordingly, because Defendant has not met the burden of establishing there is no issue of material fact, the Court denies Defendant’s motion for summary judgment.

Conclusion

The Court denies Defendant’s Motion for Summary Judgment. Plaintiff is ordered to give notice.



Case Number: ****7112 Hearing Date: January 14, 2022 Dept: 207

Background

This case involves Plaintiff’s exposure to mold while living in an apartment building. Plaintiff sued Defendant Stephen Bickel (“Defendant”) for eight causes of action relating to Plaintiff’s alleged damages sustained during his tenancy at 1508 12th Street, Unit 11, Santa Monica, California 90401 (“the subject property”) from October 10, 2007, through February 20, 2017. The Defendant sold the subject property in January 2001. Plaintiff argues this sale was void because it violated the Tenant Ownership Rights Charter Amendment (“TORCA”).

Defendant now brings this demurrer against Plaintiff’s fifth amended complaint.

Request for Judicial Notice

Evidence Code section 452 provides that judicial notice may be taken for facts and propositions that are “not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Cal. Evid. Code 452(h).) Further, “a court may take judicial notice of [recorded documents and] the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 745-755.)

The Court grants Defendant’s request for judicial notice of the Grant Deed for the real property located at 1508 12th Street, Unit 11, Santa Monica, California 90401, recorded March 20, 2001, with the Los Angeles County Recorder’s Office as Instrument No. 010440052.

Legal Standard

“‘A demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice’ [Citations]; The allegations of the pleading demurred to must be regarded as true [Citations]; a demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading [Citations], or the construction placed on an instrument pleaded therein [Citation], or facts impossible in law [Citation], or allegations contrary to facts of which a court may take judicial knowledge. [Citations]” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.)

“The following basic principle is also applicable to general demurrers, to wit: all that is necessary against a general demurrer is that upon a consideration of all the facts stated, it appears that the party whose pleading is attacked by such a demurrer is entitled to any relief at the hands of the court against his adversary, notwithstanding the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action or defense shown, or although the plaintiff, in his complaint, or the defendant, in his answer, may demand relief to which he is not entitled under the facts alleged. [Citation]” (Id. at 732-733.)

Analysis

Grant Deed Establishes Defendant did not Remain Landlord

Plaintiff argues the Grant Deed does not negate the allegation Defendant remained the lawful owner of the subject unit, nor does it establish a transfer of interest.

The Court takes judicial notice of the existence of the Grant Deed and from this any legal effect of the document is clear from its face. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 745-755.) This means because neither the grantor nor the grantee have challenged the validity of the Grant Deed, Defendant’s ownership was effectively transferred.

Plaintiff further argues the Grant Deed is void because it violated the Tenant Ownership Rights Charter Amendment (“TORCA”). The Court takes judicial notice that TORCA expired in 1996 and Defendant sold the subject property in 2001. Plaintiff signed the lease on October 10, 2007. Furthermore, Plaintiff failed to allege an ownership interest in the property during 2001 that would provide Plaintiff standing to challenge the validity of the Grant Deed. As Plaintiff failed to allege an ownership interest in the property in 2001, Plaintiff has no standing to bring claims attacking the validity of the deed.

Only the parties to the transaction have standing to challenge a voidable transaction. (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 930 [a borrower who challenges a foreclosure on the ground that an assignment to the foreclosing party bore defects rendering it voidable asserts an interest “belonging solely to the parties to the assignment rather than to herself” and therefore lacks standing]; see also Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 815.)

Pursuant to Code Civ. Proc. 367, “[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” Here, Plaintiff has no standing to claim the deed was void.

Plaintiff has failed to allege privity between Plaintiff and Defendant. Notwithstanding a void Grant Deed, a tenant-landlord relationship is required to properly allege Plaintiff’s second through eighth causes of action. Here, Plaintiff has failed to do so.

Plaintiff further argues the question of ownership is a complex factual issue not properly determined by a demurrer. The defect in Plaintiff’s complaint is that Plaintiff has not alleged a tenant-landlord relationship and thus cannot maintain causes of action which require such relationship. The Court finds Plaintiff fails to properly allege a landlord-tenant relationship between Defendant Bickel and Plaintiff. The Court further finds that Defendant Bickel did not own or otherwise control the subject properly.

First Cause of Action for Negligence

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

Defendant argues Plaintiff failed to allege the relationship between Defendant and Plaintiff, which would inform the existence and scope of any alleged duty towards Plaintiff. Defendant further argues Plaintiff never made any report of the alleged hazards to Defendant, failing to put Defendant on notice of such potential issues, despite Plaintiff’s unsupported and vague allegation that all defendants acted as agents of one another.

Further Defendant argues because he sold the subject property in January 2001, this extinguished any legal ownership and attendant responsibilities relating to the subject property. The Court may deduce and rely upon the legal effect of the recorded document when the effect is clear from its face. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 745-755.) The legal effect of the grant deed is the transfer of ownership. The general rule is that former owners of the land are not liable for injury sustained by persons while on the land after the property has been transferred. (Copfer v. Golden (1955) 135 Cal.App.2d 623, 631.) The Court finds Plaintiff has failed to allege what duty Defendant owed Plaintiff or whether Plaintiff put Defendant on notice.

Accordingly, the Court SUSTAINS Defendant’s demurrer for the first cause of action.

Second Cause of Action for Nuisance

A cause of action for private nuisance requires the following elements: (1) plaintiff owned/leased/occupied/controlled the property; (2) defendant, by acting or failing to act, created a condition or permitted a condition to exist that was harmful to health, was indecent or offensive to the senses, was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, unlawfully obstructed 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, or was a fire hazard or other potentially dangerous condition to plaintiff’s property; (3) this condition substantially interfered with plaintiff’s use or enjoyment of his/her land; (4) an ordinary person would reasonably have been annoyed or disturbed defendant’s conduct; (5) plaintiff did not consent to defendant’s conduct; (6) plaintiff was harmed; (7) defendant’s conduct was a substantial factor in causing plaintiff’s harm; and (8) the seriousness of the harm outweighs the public benefit of defendant’s conduct. (CACI 2021.)

Defendant argues Plaintiff failed to allege what Defendant did or did not do to cause the supposed interference with Plaintiff’s use of the subject property. Defendant further argues Plaintiff failed to plead that Plaintiff advised Defendant of the alleged intrusion and failed to allege any act or omission on behalf of Defendant relating to Plaintiff’s tenancy and usage of the subject property. Defendant argues Plaintiff’s complaint is devoid of facts establishing Defendant’s relationship to the subject property. The Court agrees Plaintiff’s second cause of action for nuisance is defective for the reasons argued by Defendant.

Accordingly, the Court SUSTAINS Defendant’s demurrer for the second cause of action.

Third Cause of Action for Violation of S.M.M.C section 4.36.100

Santa Monica Municipal Code section 4.36.100 sets forth the circumstances under which a landlord must provide relocation benefits to a tenant, including when a rental unit has been rendered uninhabitable. (Santa Monica Municipal Code section 4.36.100.)

Defendant argues this statute addresses only the obligations of a landlord. Defendant further argues Plaintiff failed to allege Defendant was Plaintiff’s landlord at any relevant time in the allegations of the operative complaint. Defendant contends without alleging Defendant was Plaintiff’s landlord, Plaintiff cannot sustain a cause of action for violation of S.M.M.C section 4.36.100. The Court agrees Plaintiff failed to properly allege whether Defendant was Plaintiff’s landlord.

Accordingly, the Court SUSTAINS Defendant’s demurrer for the third cause of action.

Fourth Cause of Action for Breach of Implied Warranty of Habitability

A warranty of habitability is implied in all residential rental agreements. (Green v. Superior Court (1974) 10 Cal.3d 616, 629.) The implied warranty imposes upon the landlord the obligation to maintain leased dwellings in a habitable condition throughout the term of the lease. The standard for breach is a substantial defect or statutory noncompliance. The elements for a claim of breach of the implied warranty of habitability are “[1] the existence of a material defective condition affecting the premises' habitability, [2] notice to the landlord of the condition [3] within a reasonable time after the tenant's discovery of the condition, [4] the landlord was given a reasonable time to correct the deficiency, and [5] resulting damages.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.)

Defendant argues Plaintiff failed to plead facts that Defendant had actual or constructive notice of the alleged defects of the subject property. Defendant further argues Plaintiff failed to allege any acts or omissions on behalf of Defendant demonstrating either Defendant’s knowledge of the alleged defects or a failure to properly remedy said defects. Defendant contends he sold the subject property in 2001, six years prior to Plaintiff’s tenancy. Defendant finally argues Plaintiff failed to allege Defendant was Plaintiff’s landlord, despite having the information to do so. The Court agrees Plaintiff’s fourth cause of action is defective for the reasons argued by Defendant.

Accordingly, the Court SUSTAINS Defendant’s demurrer for the fourth cause of action.

Fifth Cause of Action for Breach of Implied Covenant of Quiet Enjoyment

“In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises. []The covenant of quiet enjoyment ‘insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenants right to use and enjoy the premises for the purposes contemplated by the tenancy. []” (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588.)

“…[t]here is a clear obligation incumbent upon a lessee alleging an interference with the implied covenant of quiet enjoyment to vacate the premises within a reasonable time.” (Clark v. Spiegel (1971) 22 Cal.App.3d 74,79.)

Defendant argues Plaintiff failed to allege Defendant, by act or omission, interfered with Plaintiff’s enjoyment of the subject property. Defendant further argues Plaintiff failed to allege Defendant’s relationship to Plaintiff and failed to allege whether Defendant is Plaintiff’s landlord. The Court agrees Plaintiff’s fifth cause of action is defective for the reasons argued by Defendant.

Accordingly, the Court SUSTAINS Defendant’s demurrer for the fifth cause of action.

Sixth Cause of Action for Tenant Harassment

Santa Monica Municipal Code section 4.56.020 states that a landlord may not undertake certain actions, such as terminating or failing to provide housing services, failing to perform repairs, or failing to exercise due diligence in completing repairs, in bad faith with respect to property used as a rental housing unit under a rental agreement.

Defendant argues Plaintiff failed to allege a landlord-tenant relationship between Plaintiff and Defendant. Defendant clarifies Plaintiff failed to allege with whom he entered a lease, a fact known to Plaintiff. Defendant further argues Plaintiff could not allege a relationship with Defendant who sold the subject property in 2001, six years before Plaintiff moved into the subject property. The Court agrees Plaintiff’s sixth cause of action is defective for the reasons argued by Defendant.

Accordingly, the Court SUSTAINS Defendant’s demurrer for the sixth cause of action.

Seventh Cause of Action for Wrongful Eviction

Plaintiff’s seventh cause of action for wrongful eviction requires Plaintiff to plead Defendant evicted Plaintiff from the subject property when Defendant was not legally permitted to. Plaintiff failed to plead that Defendant demanded rent or that Defendant successfully terminated Plaintiff’s tenancy. Defendant argues Plaintiff failed to plead that Defendant “wrongfully evicted” Plaintiff and so Defendant’s demurrer to Plaintiff’s seventh cause of action for wrongful eviction should be sustained without leave to amend. The Court agrees Plaintiff’s seventh cause of action is defective for the reasons argued by Defendant.

Accordingly, the Court SUSTAINS Defendant’s demurrer for the seventh cause of action.

Eighth Cause of Action for Violation of Civil Code Section 1942.4

“[T]here is a statutory cause of action available to the residential tenant where the premises are untenantable and other circumstances exist. Under Civil Code section 1942.4, a residential landlord may not demand or collect rent, increase rent, or serve a three-day notice to pay rent or quit if (1) the dwelling is untenantable as defined under section 1941.1, is in violation of section 17920.10 of the Health and Safety Code, or is deemed and declared substandard under section 17920.3 of the Health and Safety Code; (2) a public officer inspects the premises and gives the landlord written notice that it must abate the nuisance or repair the property; (3) the conditions have not been remedied within 35 days of the notice; and (4) the substandard conditions were not caused by the tenant's acts or omissions. (Civ. Code, 1942.4, subd. (a).) In the event that each of the circumstances under subdivision (a) of the statute is satisfied, a tenant may bring an action for actual damages plus statutory damages of between $100 and $5,000. (Civ. Code, 1942.4, subd. (b)(1).)” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1298.)

Defendant submits section 1942.4 requires that a landlord may not demand or collect rent, issue a notice of rent increase, or issued a three-day notice to a defendant tenant while the subject property either lacks the characteristics listed in 1941.1 or if the property has been deemed uninhabitable by a public health officer.

Defendant argues Plaintiff failed to allege Defendant demanded rent, collected rent, or issued any type of notice to Plaintiff. Defendant further argues Plaintiff specifically and explicitly alleges Defendant Mark Ringo demanded rent from Plaintiff and issued a three-day notice to pay rent or quit. The Court agrees Plaintiff’s eighth cause of action is defective for the reasons argued by Defendant.

Accordingly, the Court SUSTAINS Defendant’s demurrer for the eighth cause of action.

Uncertainty of Fifth Amended Complaint

A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

Here, Defendant’s demurrer for uncertainty is rendered moot by the findings above, and the demurrer for uncertainty is OVERRULED.

Motion to Strike

Considering the Court’s holding above, Defendant’s motion to strike is DENIED as moot.

Leave to Amend

Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question. (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1174; see also McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 78.) The burden of demonstrating a reasonable possibility that the defect can be cured by amendment “is squarely on the plaintiff.” (Id.; see also Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”])

The Court notes this is Plaintiff’s fifth amended complaint. Plaintiff has failed to meet its burden to demonstrate a reasonable possibility that the defects can be cured by amendment. Accordingly, Plaintiff is denied leave to amend.

Conclusion

The Court SUSTAINS Defendant’s demurrer. Plaintiff is DENIED leave to amend. Defendant to give notice.



b'

Case Number: ****7112 Hearing Date: September 28, 2021 Dept: P

Tentative Ruling

Gallion v. Ringo, Case No. ****7112

Hearing Date September 28, 2021

Various Defendants’ Demurrer to Fourth Amended Complaint

Plaintiff alleges uninhabitable conditions at premises leased from defendants in a community subject to CC&Rs. Various defendants demur to plaintiff’s fourth amended complaint (4AC).

Bickel Demurrer & Motion to Strike

When ruling on a demurrer, a court may consider extrinsic evidence subject to judicial notice. Cal. Code of Civ. Proc. ;430.30. A recorded deed is an official act of the California executive branch, subject to judicial notice. Cal. Evid. Code ;;452(c); Ragland v. U.S. Bank National Ass’n. (2012) 209 Cal.App.4th 182, 194. An owner’s right to enforce documents governing a common interest community is “‘inextricable’ from their ownership of their property and cannot be assigned to non-owners without also transferring ownership of the property.” Martin v. Bridgeport Community Assoc. (2009) 173 Cal.App.4th 1024, 1036.

Plaintiff admits Bickel recorded a grant deed in 2001 transferring the unit to Ringo, but argues the transfer was void because it violated section 4.32 of the CC&Rs, which provided “Unit 11 may be sold ONLY to the condominium Homeowners Association serving Tract 50863[.]” 4AC ¶33-34. Only property owners can enforce CC&Rs, and plaintiff does not own property in the community, so he lacks standing to enforce any sales restrictions.

The court takes judicial notice of the grant deed, and its validity can be presumed based on recordation. Plaintiff’s citation to TORCA is unavailing, as TORCA expired in 1996. Judicially noticeable documents, as well as allegations in the 4AC, establish Bickel had no interest in the property during plaintiff’s tenancy, so Bickel owed plaintiff no duty of care. SUSTAINED without leave to amend. Because the demurrer has been sustained as to all causes of action against Bickel, the motion to strike is MOOT.

Fifteen Zero Eight, BLN, Shitoma and Brodhead Demurrer

The warranty of habitability and covenant of quiet enjoyment is owed only landlords to their tenants. Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 914.

Defendants request judicial notice of plaintiff’s deposition testimony, where he admitted the lease was between him and Olga Ringo, not demurring defendants. RJN exhibit 1. While the existence of deposition testimony is judicially noticeable, the truth of the statements in the transcript are not subject to judicial notice. Garcia v. Sterling (1985) 176 Cal.App.3d 17, 20.

Demurring defendants do present judicially noticeable evidence that no landlord-tenant relationship existed between them and plaintiff. Ringo acquired the unit from Bickel in 2001. Defendants’ RJN, exhibit D. Ringo transferred the unit to himself in his capacity as trustee of the Mark G. Ringo Trust and transferred it to Property Privacy services as trustees under the YPAC trust in 2019, after plaintiff’s tenancy ended. RJN, exhibits A-D. The CC&Rs establish each unit is the individual owner’s property, not held in common with owners of other units. RJN, exhibit E. Ringo, not demurring defendants, was plaintiff’s landlord during the relevant period. The third through eighth causes of action require a landlord-tenant relationship; the demurrer is SUSTAINED without leave to amend as to demurring defendants.

Nuisance and Negligence – Statute of Limitations

A cause of action for private nuisance is subject to a three-year statute of limitations. If the nuisance is “permanent,” the statute beings to run at creation of the nuisance; with a “continuing” nuisance, every continuation of the nuisance gives rise to a separate claim for damages and a separate statute of limitations period. People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 108; Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1093. A cause of action for negligence is subject to a two-year statute of limitations. Cal. Code of Civ. Proc. ;331, 331.5. An expired statute of limitations is a valid basis for demurrer if the facts alleged on the face of the complaint show its claims are time-barred. E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.

The causes of action for nuisance and negligence arise out of independent tort duties and are not dependent on existence of a landlord-tenant relationship. Defendants argue all claims are time barred, as the tenancy ended in 2017. The complaint was filed on February 22, 2017, and the 4AC relates back to filing of the initial complaint. It is not clear on the face of the complaint that all injuries occurred outside the statute period. OVERRULED as to the negligence and nuisance causes of action.

Motion to Strike

A properly pleaded cause of action for intentional creation of a nuisance can support a prayer for punitive damages. Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903.

Defendants move to strike plaintiff’s request for punitive damages, arguing plaintiff has not adequately alleged fraud, oppression or malice. Plaintiff alleges defendants knew of a nuisance but failed to remedy it, despite knowledge that plaintiff’s health would be affected. 4AC ¶¶55-63. This is sufficient to support a claim for punitive damages at the demurrer stage.

Defendants move to strike plaintiff’s request for recovery under Cal. Civ. Code ;3345, which allows plaintiffs who are senior citizens or disabled to recover enhanced damages. Defendants argue plaintiff has not adequately alleged the nature of his disability or how defendants had notice. Plaintiff alleges he was disabled and defendants were aware of his disability. 4AC ¶28. For pleading purposes, this is sufficient. DENIED.

Sitheek and Sham Demurrers

The demurrers of defendants Sitheek and Sham are SUSTAINED without leave as to all landlord-tenant causes of action (the third through eighth causes of action) since judicially noticeable documents show demurring defendants were not plaintiff’s landlords. OVERRULED as to the first two causes of action, which are adequately pleaded and do not require a landlord-tenant relationship.

DUE TO THE ONGOING COVID-19 PANDEMIC, PARTIES AND COUNSEL ARE ENCOURAGED TO APPEAR BY MICROSOFT OFFICE TEAMS.

'


Case Number: ****7112    Hearing Date: April 29, 2021    Dept: P

Tentative Ruling

Gallion v. Ringo, Case No. ****7112

Hearing Date April 29, 2021

Defendants’ Demurrers to and Motions to Strike Portions of Second Amended Complaint

Plaintiff alleges uninhabitable conditions at property leased from defendants. Various defendants demur to the second amended complaint and move to strike.

Bickel Demurrer

A court may consider matters subject to judicial notice when reviewing the sufficiency of a complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer for uncertainty is proper when a defendant cannot reasonably determine what must be admitted or denied. Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.

Defendant Bickel presents a grant deed, indicating he granted the unit to defendant Ringo on January 25, 2001, so has no current ownership interest. Bickel RJN Ex. A, Whitten Decl. ¶ 5. This document is subject to judicial notice under Cal. Evid. Code ;452. Plaintiff admits this sale took place but argues it is void under the CC&Rs. Defendant argues CC&Rs constitute a covenant running with the land, which is not self-enforcing, and only members of the HOA have the right to bring an enforcement action. County of Butte v. Bach (1985) 172 Cal.App.3d 848, 867. Plaintiff alleged he holds a leasehold; as he is not an HOA member, he has no standing to seek to enforce CC&Rs.

The Complaint alleges all defendants, including Bickel, “either owned, operated, managed, maintained, and/or [was] legally responsible for the PREMISES, common areas and/or adjacent crawl space or were otherwise legally entitled to receive rent for the use and occupancy of the premises.” SAC at ¶34. These allegations are insufficient for Bickel to respond, since it is not clear how his duty to plaintiff is alleged to have arisen. The SAC contains no specific allegations of wrongful conduct by Bickel. The SAC is uncertain as Bickell. SUSTAINED.

Fifteen Zero Eight, BLN, Izumi Shitoma and Dan Brodhead Demurrers; Resnik Demurrer

These defendants argue plaintiff inadequately alleged what relationship they allegedly had to the property, and judicially noticeable facts demonstrate none were owners or managers of the property. The issues identified above apply equally here. Plaintiff lumps these defendants together vaguely and does sufficiently allege their relationship to the property or source of any alleged duties. SAC ¶34. SUSTAINED. The same analysis applies to Resnik. SUSTAINED.

All demurrers SUSTAINED with ten days leave to amend. No further leave to amend will be granted. Since the demurrers were sustained, the motion to strike is MOOT.

DUE TO THE ONGOING COVID-19 PANDEMIC, PARTIES AND COUNSEL ARE ENCOURAGED TO APPEAR VIA LA COURT CONNECT.



Case Number: ****7112    Hearing Date: February 23, 2021    Dept: P

Tentative Rulings

Gallion v. Ringo et al., Case No. ****7112

Hearing Date January 21, 2021 (continued to February 23, 2021)

Defendants’ Demurrers to First Amended Complaint

Plaintiff alleges injuries due to leaks and mold at his residence, owned and managed by defendants. The various defendants demur to the First Amended Complaint.

Plaintiff does not oppose the demurrers, admitting the FAC is defective and requesting leave to file a second amended complaint. The court accepts the second amended complaint due to the liberal public policy favoring amendments to pleadings. See, e.g. Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939. The SAC is deemed filed as of January 21, 2020. Demurrers to the FAC complaint are MOOT.

DUE TO THE ONGOING COVID-19 PANDEMIC, PARTIES AND COUNSEL ARE ENCOURAGED TO APPEAR VIA LA COURT CONNECT.



Case Number: ****7112    Hearing Date: January 21, 2021    Dept: P

Tentative Rulings

Gallion v. Ringo et al., Case No. ****7112

Hearing Date January 21, 2021

Defendants’ Demurrers to First Amended Complaint

Plaintiff alleges injuries due to leaks and mold at his residence, owned and managed by defendants. Defendants demur to the First Amended Complaint.

Plaintiff does not oppose the demurrers, admitting the FAC is defective and requesting leave to file a second amended complaint. The court accepts the second amended complaint due to the liberal public policy favoring amendments to pleadings. See, e.g. Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939. The SAC is deemed filed as of January 21, 2020. Demurrers to the FAC complaint are MOOT.

DUE TO THE ONGOING COVID-19 PANDEMIC, PARTIES AND COUNSEL ARE ENCOURAGED TO APPEAR VIA LA COURT CONNECT.



Case Number: ****7112    Hearing Date: September 11, 2020    Dept: P

 

Tentative Ruling

Billy Ray Gallion v. Mark G. Ringo et al., Case No. ****7112

Hearing Date September 11, 2020

Plaintiff’s Motion for Leave to File First Amended Complaint

Plaintiff alleges defendant landlord allowed water leaks and mold to develop in his unit, tenant harassment, wrongful eviction and failure to provide relocation benefits. Plaintiff seeks leave to file a first amended complaint updating factual allegations and adding a cause of action for violation of Civil Code ;1942.4 and seeking civil penalties.

Courts must use their discretion liberally to permit amendment of pleadings. Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428. A court may deny leave to amend when the amendment would cause unjustified prejudice to the opposing party. E.g. Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490. Unwarranted delay in presenting an otherwise valid amendment may be grounds for denying leave to amend. Melican v. Regents of the University of California (2007) 151 Cal.App.4th 168, 175.

Plaintiff argues the proposed amendments are based on newly discovered information. Defendant opposes, arguing plaintiff fails to set forth a cause of action, delayed unreasonably, as well as prejudice. The facts forming the basis of the proposed amendments were discovered in September 2019. Rosensweig Decl. ¶¶3,4. Plaintiff provides no clear justification for waiting almost a year before seeking leave to amend.

Despite this delay, there is no evidence the delay causes prejudice. There is no trial date set due to the COVID-19 pandemic, nor is one able to currently be set, due to the pandemic and the Court’s General Orders regarding trials. Because there has been no showing of prejudice, the court will adhere to the strong policy in favor of granting leave to amend to conform to the evidence. GRANTED. The FAC to be filed within 15 days.

DUE TO THE ONGOING COVID-19 PANDEMIC, PARTIES AND COUNSEL ARE ENCOURAGED TO AVOID IN-PERSON APPEARANCES AND TO APPEAR REMOTELY VIA LA COURT CONNECT.



Case Number: ****7112    Hearing Date: December 13, 2019    Dept: P

 

Los Angeles County Superior Court, Dept. P

TENTATIVE RULING

Billy Ray Gallion v. Mark G. Ringo et al., Case No., ****7112

Liwnicz Defendants’ Motion for Summary Judgment

Hearing Date: December 13, 2019

Plaintiff alleges water leaked from defendants Sarah and Regina Liwnicz’s condominium unit into his unit, causing damage. The Liwnicz defendants move for summary judgment, alleging the leaks did not originate in their unit. Summary judgment was continued from 10/4/19 based on plaintiff’s inability to conduct discovery to oppose the motion.

Evidentiary Objections: All objections OVERRULED.

Defendants argue plaintiff cannot prove the leaks originated in their unit and present testimony of the unit’s current and former residents and records of a plumbing company that inspected the unit. Motion at pgs. 7-9. As this negates causation, defendants meet their initial burden on summary judgment. The burden shifts to plaintiff to show a disputed issue of fact as to causation.

Plaintiff states he still has been unable to perform a full inspection of defendants’ unit and has not deposed the plumbing technician who performed the inspection for defendants. Supplemental Opposition at pgs. 8-9. The court previously granted plaintiff a continuance to conduct such discovery.

Plaintiff presents a declaration from expert witness Jeff Hughes, a construction manager who examined the units and opines that some of the water intrusion originated from defendants’ unit. Hughes Declaration at ¶5. The declaration has a proper foundation and is admissible. Hughes’ opinion creates a triable issue of fact as to the water’s origin. Motion DENIED.



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