This case was last updated from Los Angeles County Superior Courts on 06/06/2019 at 10:45:35 (UTC).

DORI ZUCKERMAN MENTZER VS ERROL REICHOW

Case Summary

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.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6563

  • Filing Date:

    01/12/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff

MENTZER DORI ZUCKERMAN

Defendants and Respondents

REICHOW ERROL

DOES 1-50

Attorney/Law Firm Details

Plaintiff Attorney

TOVEG ISAAC

Defendant Attorney

WEST EUGENE F. ESQ.

 

Court Documents

Declaration

5/13/2019: Declaration

Motion in Limine

5/13/2019: Motion in Limine

Motion in Limine

5/13/2019: Motion in Limine

Motion in Limine

5/13/2019: Motion in Limine

Stipulation and Order

5/13/2019: Stipulation and Order

Motion in Limine

5/13/2019: Motion in Limine

Motion in Limine

5/13/2019: Motion in Limine

Opposition

5/7/2019: Opposition

Objection

4/30/2019: Objection

Objection

4/29/2019: Objection

Motion to Bifurcate

4/8/2019: Motion to Bifurcate

Stipulation and Order

2/20/2019: Stipulation and Order

Declaration

1/14/2019: Declaration

Notice

1/14/2019: Notice

Unknown

11/21/2018: Unknown

Minute Order

2/22/2018: Minute Order

4 More Documents Available

 

Docket Entries

  • 06/04/2019
  • Docketat 09:30 AM in Department 78; Jury Trial - Not Held - Continued - Stipulation

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  • 05/20/2019
  • Docketat 08:30 AM in Department 78; Post-Mediation Status Conference - Not Held - Continued - Court's Motion

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  • 05/20/2019
  • Docketat 08:30 AM in Department 78; Final Status Conference - Not Held - Continued - Stipulation

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  • 05/13/2019
  • DocketMotion in Limine ( 3); Filed by Errol Reichow (Defendant)

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  • 05/13/2019
  • DocketMotion in Limine ( 4); Filed by Errol Reichow (Defendant)

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  • 05/13/2019
  • DocketStipulation and Order (STIPULATION TO CONTINUE TRIAL AND FINAL STATUS CONFERENCE DATES and ORDER); Filed by Errol Reichow (Defendant)

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  • 05/13/2019
  • DocketMotion in Limine ( 1); Filed by Errol Reichow (Defendant)

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  • 05/13/2019
  • DocketDeclaration (OF KRISTINE HARN); Filed by Errol Reichow (Defendant)

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  • 05/13/2019
  • DocketMotion in Limine ( 2); Filed by Errol Reichow (Defendant)

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  • 05/13/2019
  • DocketMotion in Limine ( 5); Filed by Errol Reichow (Defendant)

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92 More Docket Entries
  • 05/11/2017
  • DocketMiscellaneous-Other; Filed by Errol Reichow (Defendant)

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  • 05/04/2017
  • DocketSubstitution of Attorney; Filed by Dori Zuckerman Mentzer (Plaintiff)

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  • 05/04/2017
  • DocketSUBSTITUTION OF ATTORNEY

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  • 05/01/2017
  • DocketMOTION TO STRIKE

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  • 05/01/2017
  • DocketMotion to Strike; Filed by Errol Reichow (Defendant)

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  • 04/10/2017
  • DocketProof-Service/Summons; Filed by Dori Zuckerman Mentzer (Plaintiff)

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  • 04/10/2017
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 01/12/2017
  • DocketSUMMONS

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  • 01/12/2017
  • DocketComplaint; Filed by Dori Zuckerman Mentzer (Plaintiff)

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  • 01/12/2017
  • DocketCOMPLAINT 1. BREACH OF IMPLIED WARRANTY OF HABITABILITY; ETC

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Tentative Rulings

Case Number: ****6563 Hearing Date: April 18, 2022 Dept: 78

Superior Court of California

County of Los Angeles

Department 78

DORI ZUCKERMAN MENTZER., Plaintiff; vs. ERROL REICHOW, Defendant. Case No.: ****6563 Hearing Date: April 18, 2022 [TENTATIVE] RULING RE: DEFENDANT ERROL REICHOW’S MOTION TO BIFURCATE.

“(d) The court shall, on application of any defendant, preclude the admission of evidence of that defendant's profits or financial condition until after the trier of fact returns a verdict for plaintiff awarding actual damages and finds that a defendant is guilty of malice, oppression, or fraud in accordance with Section 3294. Evidence of profit and financial condition shall be admissible only as to the defendant or defendants found to be liable to the plaintiff and to be guilty of malice, oppression, or fraud. Evidence of profit and financial condition shall be presented to the same trier of fact that found for the plaintiff and found one or more defendants guilty of malice, oppression, or fraud.” Civil Code 3295(d) (Bold and underline added.)

Defendant Errol Reichow’s Motion to Bifurcate under this section. Plaintiff contends that “shall” is not mandatory in this case where a timely request has been made by Defendant. She does so by misconstruing the case that she relies upon to make that argument.

The Motion to Bifurcate is GRANTED.

FACTUAL BACKGROUND

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 Defendant Errol Reichow. (FAC 9-10). In October 2010, Reichow discovered a leak in the property and had leaks in the residence. (FAC 11.) In early 2015, Plaintiff paid for a mold test of the residence which discovered toxic mold. (FAC 12.) Defendant 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.)

PROCEDURAL HISTORY

On January 12, 2017, Plaintiff filed the Complaint asserting six causes of action:

1. Breach of Implied Warranty of Habitability;

2. Negligence;

3. Nuisance;

4. Statutory Retaliation based on Cal. Civ. Code 1942.5;

5. Common-Law Retaliatory Eviction; and,

6. Breach of Contract.

On January 5, 2018, Reichow filed an Answer.

On June 20, 2017, this case was reassigned to Department 78.

On November 21, 2017, Zuckerman filed the FAC asserting the same six cause of action.

On February 9, 2021, Defendant filed the instant Motion to Bifurcate.

On August 18, 2021, the Motion to Bifurcate was continued.

On April 5, 2022, Plaintiff filed an Opposition.

DISCUSSION

I. MOTION TO BIFURCATE

Defendant moves to bifurcate the liability and punitive damage proceedings, thereby precluding evidence of Defendant’s financial condition unless/until the jury determines he is liable.

Civil Code section 3295(d) provides that “[t]he court shall, on application of any defendant, preclude the admission of evidence of that defendant’s profits or financial condition until after the trier of fact returns a verdict for plaintiff awarding actual damages and finds that a defendant is guilty of malice, oppression, or fraud in accordance with Section 3294.” (Civ. Code, 3295(d).) “Evidence of profit and financial condition shall be admissible only as to the defendant or defendants found to be liable to the plaintiff and to be guilty of malice, oppression, or fraud.” (Id.)

“Section 3295 was enacted in 1979 to protect against the premature disclosure of a defendant's financial condition when punitive damages are sought. (Medo v. Superior Court (1988) 205 Cal.App.3d 64, 67, 251 Cal.Rptr. 924; Stats.1979, ch. 778, 1, p. 2662.) * * * And since 1987, section 3295 has established rules for bifurcating the punitive damages portion of a trial * * * These restrictions safeguard defendants in two ways: “[t]he pretrial discovery limits ensure that defendants are not coerced into settling suits solely to avoid unwarranted intrusions into their private financial affairs, while the evidentiary restrictions minimize potential prejudice to the defense in front of a jury.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 712, 34 Cal.Rptr.2d 898, 882 P.2d 894.)” Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 777 [63 Cal.Rptr.2d 859, 862, 937 P.2d 290, 293], as modified on denial of reh'g (July 16, 1997)

Civil Code section 3295(d) facially requires the Court to grant Defendant’s Motion. However, Plaintiff opposes the Motion on two grounds.

First, Plaintiff cites to Las Palmas Associates v. Law Palmas Center Associates ((1991) 235 Cal.App.3d 1220) as evidence that the Court may deny a 3295(d) motion. However, the Las Palmas Court did not hold that a trial court may deny a motion under 3295(d); the Las Palmas Court held that a defendant waives their right to bifurcate the proceedings when they fail to make a timely motion requesting it prior to trial. (“In the matter at hand, sellers have no excuse for their delay in seeking the bar of the statute.”

Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1241 [1 Cal.Rptr.2d 301, 312].) The court found that the defendants “cannot complain on appeal they were denied the benefits of section 3295, subdivision (d) when it was within their power to make a timely motion.” (Id. at 1242.)

Evidence of defendant’s financial condition in Las Palmas was only admissible in the liability proceedings because the Las Palmas defendant failed to move the court for bifurcation, and financial condition was necessary to determine punitive damages. Here, Defendant files a timely motion, so Las Palmas is inapposite.

Second, Plaintiff asserts, without the citatio of authority, that “[i]t is the burden of Reichow to show something much more in order to justify bifurcation. Reichow must show that it has a high probability of prevailing on liability. Unless Reichow can demonstrate a high probability of success, bifurcation is not going to save time. If Reichow cannot demonstrate a high probability of success, bifurcation will only waste time. Defendant’s motion falls well short of justifying a bifurcation of the trial on liability and damages.” (Opposition at p. 3.) Defendant provides no authority stating that a defendant must show a high probability of success to justify bifurcation. And the punitive damage code section quoted above makes no such requirement.

The case cited by Plaintiff, Las Palmas, notes “On its face, subdivision (d) is a codification of the presumption that evidence of a defendant's wealth can induce factfinders to abandon their objectivity and return a verdict based on passion and prejudice. (See Adams v. Murakami (1991) 54 Cal.3d 105, 121, 284 Cal.Rptr. 318, 813 P.2d 1348.)” Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1241 [1 Cal.Rptr.2d 301, 312]. It is that consideration that is at issue.

Plaintiff notes that Code of Civil Procedure sections 1048 and 598 feature more considerations a court must make before granting a motion for bifurcation. As Defendant brings this Motion pursuant to Civil Code section 3295(d), which is specific to punitive damages, these sections are not applicable to the instant discussion.

Civil Code section 3295(d) requires the Court to grant a defendant’s Motion to Bifurcate where a defendant seeks to preclude admission of financial condition during the liability phase, and introduce it as necessary in the damage phase. This is exactly what Defendant requests here, so the Court must grant it.

Defendant’s Motion to Bifurcate is GRANTED.

DATED: April 18, 2022

Hon. Douglas W. Stern

Judge of the Superior Court



Case Number: ****6563    Hearing Date: February 03, 2021    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

DORI ZUCKERMAN MENTZER;

Plaintiffs,

vs.

ERROL REICHOW, et al.;

Defendants.

Case No.:

****6563

Hearing Date:

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.

FACTUAL BACKGROUND

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.)

procedural history

Zuckerman filed her Complaint on January 12, 2017, alleging six causes of action:

  1. Breach of Implied Warranty of Habitability;

  2. Negligence;

  3. Nuisance;

  4. Statutory Retaliation based on Cal. Civ. Code ; 1942.5;

  5. Common-Law Retaliatory Eviction;

  6. 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.

Discussion

  1. 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.

  1. 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.

  1. 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.

  1. Punitive Damages

“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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