On 01/12/2017 DORI ZUCKERMAN MENTZER filed a Personal Injury - Other Personal Injury lawsuit against ERROL REICHOW. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
MENTZER DORI ZUCKERMAN
WEST EUGENE F. ESQ.
2/22/2018: Minute Order
2/20/2019: Stipulation and Order
4/8/2019: Motion to Bifurcate
5/13/2019: Motion in Limine
5/13/2019: Motion in Limine
5/13/2019: Stipulation and Order
5/13/2019: Motion in Limine
5/13/2019: Motion in Limine
5/13/2019: Motion in Limine
at 09:30 AM in Department 78; Jury Trial - Not Held - Continued - StipulationRead MoreRead Less
at 08:30 AM in Department 78; Post-Mediation Status Conference - Not Held - Continued - Court's MotionRead MoreRead Less
at 08:30 AM in Department 78; Final Status Conference - Not Held - Continued - StipulationRead MoreRead Less
Motion in Limine ( 3); Filed by Errol Reichow (Defendant)Read MoreRead Less
Motion in Limine ( 4); Filed by Errol Reichow (Defendant)Read MoreRead Less
Stipulation and Order (STIPULATION TO CONTINUE TRIAL AND FINAL STATUS CONFERENCE DATES and ORDER); Filed by Errol Reichow (Defendant)Read MoreRead Less
Motion in Limine ( 1); Filed by Errol Reichow (Defendant)Read MoreRead Less
Declaration (OF KRISTINE HARN); Filed by Errol Reichow (Defendant)Read MoreRead Less
Motion in Limine ( 2); Filed by Errol Reichow (Defendant)Read MoreRead Less
Motion in Limine ( 5); Filed by Errol Reichow (Defendant)Read MoreRead Less
Miscellaneous-Other; Filed by Errol Reichow (Defendant)Read MoreRead Less
Substitution of Attorney; Filed by Dori Zuckerman Mentzer (Plaintiff)Read MoreRead Less
SUBSTITUTION OF ATTORNEYRead MoreRead Less
MOTION TO STRIKERead MoreRead Less
Motion to Strike; Filed by Errol Reichow (Defendant)Read MoreRead Less
Proof-Service/Summons; Filed by Dori Zuckerman Mentzer (Plaintiff)Read MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by Dori Zuckerman Mentzer (Plaintiff)Read MoreRead Less
COMPLAINT 1. BREACH OF IMPLIED WARRANTY OF HABITABILITY; ETCRead MoreRead Less
Case Number: BC646563 Hearing Date: February 03, 2021 Dept: 78
DORI ZUCKERMAN MENTZER;
ERROL REICHOW, et al.;
February 3, 2021
[TENTATIVE] RULING RE:
DEFENDANT ERROL REICHOW, INDIVIDUALLY AND AS TRUSTEE OF THE REICHOW FAMILY TRUST’S MOTION FOR SUMMARY ADJUDICATION
Defendant Errol Reichow, Individually and as Trustee of the Reichow Family Trust’s Motion for Summary Adjudication is DENIED as to the Fourth and Fifth Causes of Action and as to the claim for punitive damages.
This is a habitability case. The First Amended Complaint (“FAC”) alleges as follows. Plaintiff Dori Zuckerman Mentzer (“Zuckerman”) resided at the real property controlled by Defendants Errol Reichow and The Reichow Family Trust (collectively, “Reichow”). (FAC ¶¶ 9-10.) In October 2010, Reichow discovered a leak in the property and had multiple conversations with the property manager between 2010 and 2015 regarding leaks in the residence. (FAC ¶ 11.) In early 2015, Plaintiff paid for a mold test of the residence which discovered toxic mold. (FAC ¶ 12.) Defendants did not sufficiently remedy the mold and leaks, and Plaintiff withheld rent in March 2015 due to uninhabitable living conditions. (FAC ¶ 17.) On May 24, 2015, Defendants served Plaintiff with a 3-Day Notice to Pay or Quit. (FAC ¶ 19.)
Zuckerman filed her Complaint on January 12, 2017, alleging six causes of action:
Breach of Implied Warranty of Habitability;
Statutory Retaliation based on Cal. Civ. Code § 1942.5;
Common-Law Retaliatory Eviction;
Breach of Contract.
On January 5, 2018 Reichow filed his answer.
On June 20, 2017, this case was reassigned to Department 78.
On November 21, 2017, Zuckerman filed the FAC, alleging the same six causes of action.
On June 25, 2020, Reichow filed the instant Motion for Summary Adjudication.
On January 20, 2021, Zuckerman filed an Opposition.
On January 27, 2021, Reichow filed a Reply.
REQUESTS FOR JUDICIAL NOTICE
The court may take judicial notice of “(d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States […] (h) 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.” (Evid. Code § 452.)
Reichow requests judicial notice of two judgments from the unlawful detainer action (case no. 15R03832), and the FAC filed in this case. The requests for judicial notice are GRANTED.
MOTION FOR SUMMARY ADJUDICATION
A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)
The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
Neither a moving or responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
Here, Reichow moves for summary adjudication of the Fourth and Fifth Causes of Action, and the claim for punitive damages.
Fourth Cause of Action – Statutory Retaliation Based on California Civil Code § 1942.5; Fifth Cause of Action -Common Law Retaliatory Eviction
The FAC alleges that Plaintiff “made a number of written and oral complaints to [Reichow] about the substandard conditions (e.g., water leaks and toxic mold) in her Residence” and repeatedly requested that Reichow “adequately address and repair these substandard conditions.” (FAC ¶ 43.) Plaintiff made these complaint after water and mold tests conducted in late January and February 2015, which revealed the existence of toxic mold. (FAC ¶¶ 12-14.) The FAC further alleges that Reichow retaliated within 180 days of these complaints by serving Plaintiff with “two 3 -Day Notices to Pay or Quit on May 25, 2015 and again on July 14, 2015.” (FAC ¶ 44.) The FAC alleges that in early March 2015, “Per professional instruction, Plaintiff was instructed to vacate the Residence and find alternative housing.” (FAC ¶ 17.)
Reichow argues that Civil Code section 1942.5 is inapplicable when rent is in default. (Motion at p. 8.) Reichow presents evidence that Plaintiff stopped paying rent after February 2015 and Reichow served a 3-Day Notice to Pay or Quit on July 14, 2015. (UMF ¶¶ 3, 5.) Reichow further argues that Plaintiff was evicted for non-payment of rent, not for complaining to a public agency. (Motion at pp. 10-11.) In Opposition, Plaintiff presents evidence that she informed Reichow in March 2015 “that she was vacating the property, terminating the lease and was constructively evicted due to the habitability of the residence[.]” (UMF ¶ 4.)
Civil Code section 1942.5, subdivision (a) states: “(a) If the lessor retaliates against the lessee because of the exercise by the lessee of the lessee's rights under this chapter or because of the lessee's complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days[.]” (Civ. Code, § 1942.5.) Actions by the lessee under subdivision (a), include “ma[king] an oral complaint to the lessor regarding tenantability.” (Civ. Code, § 1942.5(a)(1).)
There are several issues with Reichow’s argument. The first is the definition of “default.” Generally, a tenant is only in default when they had no basis in law to withhold rent. (See, Smith v. David (1981) 120 Cal.App.3d 101, 110 [“tenant may withhold payment of the rent until the defects are remedied or until there is a judicial determination as to the fair rent owing to the landlord for the premises in its substandard condition”].) Here, Plaintiff has submitted evidence that the property was in substandard condition at the time when Plaintiff withheld rent. (UMF ¶¶ 25-26; Reichow Decl., Exh. 3 [March 17, 2015, Los Angeles Dept. of Public Health sent a letter to Reichow informing him of a mold complaint. In April 2015, the Department found suspected mold as well as various other “critical” violations including vermin, structural issues, electrical issues, and occupancy issues].) Accordingly there is a disputed of material fact as to whether Plaintiff was “in default,” or otherwise required to pay rent at the time that she withheld rent.
The second issue is that there is a disputed issue of material fact as to the retaliatory action(s) of Reichow. Retaliatory actions include not only termination of a lease, but also those that “cause the lessee to quit involuntarily[.]” (Civ. Code § 1942.5(a).) The FAC alleges that in March 2015, after complaining about the mold and leaks to both Reichow and the City of Los Angeles Department of Building and Safety, Plaintiff vacated the residence and found alternative housing. (FAC ¶¶ 17, 44.) Plaintiff submits evidence to supporting these allegations. (UMF ¶¶ 4-6.) If true, Plaintiff quit her lease involuntarily after making complaints regarding mold and leaks, and Reichow “refusing to make repairs to the make the living conditions of the Residence tolerable for Plaintiff and threatening to evict Plaintiff. (UMF ¶¶ 4-6, 46.) “Failure to repair and keep the premises in a condition suitable for the purposes for which they were leased has been held to constitute eviction.” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 926.) Alternatively, Reichow also formally evicted Plaintiff (UMF ¶¶ 5-6; Reichow Decl., Exh. 5) within 180 days after Plaintiff complained to Reichow/City of Los Angeles about the mold and leaks.
“Section 1942.5 is a remedial statute aimed at protecting tenants from certain types of abuses. It is to be ‘liberally construed to effect its objectives and to suppress, not encourage, the mischief at which it was directed.’ “ (Barela v. Superior Court (1981) 30 Cal.3d 244, 251.)
Accordingly, the Motion for Summary Adjudication of the Fourth and Fifth Causes of Action is DENIED.
“In the usual case, the question of whether the defendant's conduct will support an award of punitive damages is for the trier of fact, ‘since the degree of punishment depends on the peculiar circumstances of each case.’ ” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1053.) Summary judgment “ ‘on the issue of punitive damages is proper’ only ‘when no reasonable jury could find the plaintiff's evidence to be clear and convincing proof of malice, fraud or oppression.’ ” (Id.)
Here, Reichow argues that “there is no evidence of malice, oppression or fraud by the defendant.” (Motion at p. 11.) Reichow contends that “The fact that the repairs were not done satisfactory to the plaintiff is not a basis for punitive damages, even if the repairs were ultimately unsuccessful.” (Motion at p. 11.)
Civil Code section 1942.5 expressly states that punitive damages may be recovered for violations: “(h) Any lessor or agent of a lessor who violates this section shall be liable to the lessee in a civil action for all of the following: […] (2) Punitive damages in an amount of not less than one hundred dollars ($100) nor more than two thousand dollars ($2,000) for each retaliatory act where the lessor or agent has been guilty of fraud, oppression, or malice with respect to that act.” (Civ. Code, § 1942.5.)
Here, because the Fourth Cause of Action for Violations of Civil Code section 1942.5 survives summary adjudication, it may serve as a basis for punitive damages.
Accordingly, the Motion for Summary Adjudication as to Punitive Damages is DENIED.
DATED: February 3, 2021 ________________________________
Hon. Robert S. Draper
Judge of the Superior Court
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