This case was last updated from Los Angeles County Superior Courts on 12/09/2019 at 22:56:44 (UTC).

JAMIE MARRS ET AL VS DELLA SHAKER

Case Summary

On 05/25/2018 JAMIE MARRS filed a Property - Other Eviction lawsuit against DELLA SHAKER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DALILA CORRAL LYONS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7714

  • Filing Date:

    05/25/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Eviction

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DALILA CORRAL LYONS

 

Party Details

Plaintiffs, Petitioners and Guardian Ad Litems

MARRS JAMIE

MARRS ELIAS

Defendants and Respondents

DOES 1-10

SHAKER DELLA

Plaintiff, Minor and Not Yet Classified

MARRS ELIAS

Attorney/Law Firm Details

Plaintiff, Petitioner and Minor Attorney

CAMPBELL FRANCES M. ESQ.

Attorney at Campbell & Farahani, LLP

15233 Ventura Blvd Suite 408

Sherman Oaks, CA 91403

Defendant Attorneys

DILTS GREGORY ALLEN

DILTS GREGORY A.

 

Court Documents

Separate Statement

7/31/2019: Separate Statement

Answer - Answer First Amended

11/5/2018: Answer - Answer First Amended

COMPLAINT FOR DAMAGES FOR (1) FRAUDULENT (BAD FAITH) EVICTION [VIOLATION OF LOS ANGELES MUNICIPAL CODE ? 151.09 A 8.] AND ETC...

5/25/2018: COMPLAINT FOR DAMAGES FOR (1) FRAUDULENT (BAD FAITH) EVICTION [VIOLATION OF LOS ANGELES MUNICIPAL CODE ? 151.09 A 8.] AND ETC...

Declaration - DECLARATION OF LISA WALCO, ESQ RE PLAINTIFF'S MOTION TO COMPEL LISA WALCO AND THE LAW OFFICES OF FRED M. SZKOLNIK TO COMPLY WITH SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS

10/15/2019: Declaration - DECLARATION OF LISA WALCO, ESQ RE PLAINTIFF'S MOTION TO COMPEL LISA WALCO AND THE LAW OFFICES OF FRED M. SZKOLNIK TO COMPLY WITH SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL DISCOVERY (NOT "FURTHER DISCOVERY...)

10/28/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL DISCOVERY (NOT "FURTHER DISCOVERY...)

Notice - NOTICE OF LODGING ORIGINAL TRANSCRIPT OF DEF ISO OPPOSITION TO PLS' MSA

11/6/2019: Notice - NOTICE OF LODGING ORIGINAL TRANSCRIPT OF DEF ISO OPPOSITION TO PLS' MSA

Objection - OBJECTION TO EVIDENCE SUBMITTED BY PLAINTIFFS RE DECLARATION OF JOANNE E. BELISLE ATTACHED TO MOTION FOR SUMMARY ADJUDICATION

11/6/2019: Objection - OBJECTION TO EVIDENCE SUBMITTED BY PLAINTIFFS RE DECLARATION OF JOANNE E. BELISLE ATTACHED TO MOTION FOR SUMMARY ADJUDICATION

Opposition - OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF CYRIL CZAJKOWSKYJ

11/6/2019: Opposition - OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF CYRIL CZAJKOWSKYJ

Objection - OBJECTION TO EVIDENCE

11/15/2019: Objection - OBJECTION TO EVIDENCE

Reply - REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION; DECLARATION OF JOANNE E. BELISLE

11/15/2019: Reply - REPLY IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION; DECLARATION OF JOANNE E. BELISLE

Notice - NOTICE OF CONTINUANCE OF HEARING ON MOTION FOR SUMMARY ADJUDICATION

11/19/2019: Notice - NOTICE OF CONTINUANCE OF HEARING ON MOTION FOR SUMMARY ADJUDICATION

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER REGARDING CONTINUANCE OF HEARING) OF 11/19/2019

11/19/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER REGARDING CONTINUANCE OF HEARING) OF 11/19/2019

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 11/25/2019

11/25/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 11/25/2019

Case Management Statement

10/18/2018: Case Management Statement

Case Management Statement

10/19/2018: Case Management Statement

Minute Order - Minute Order (CASE MANAGEMENT CONFERENCE)

12/17/2018: Minute Order - Minute Order (CASE MANAGEMENT CONFERENCE)

Answer -

10/5/2018: Answer -

NOTICE OF CASE MANAGEMENT CONFERENCE

6/22/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

33 More Documents Available

 

Docket Entries

  • 06/15/2020
  • Hearing06/15/2020 at 09:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 06/10/2020
  • Hearing06/10/2020 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 04/16/2020
  • Hearing04/16/2020 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: why SANCTIONS should not be imposed against plaintiff for failure to file a Status Report

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  • 04/16/2020
  • Hearing04/16/2020 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Status Conference

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  • 04/09/2020
  • Hearing04/09/2020 at 15:00 PM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Non-Appearance Case Review

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  • 02/11/2020
  • Hearing02/11/2020 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Adjudication

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  • 12/04/2019
  • Docketat 08:30 AM in Department 20, Dalila Corral Lyons, Presiding; Hearing on Motion for Reconsideration (to Motion to Compel of 10/28/19, Filed by Plaintiffs) - Not Held - Advanced and Vacated

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  • 12/02/2019
  • DocketNotice (Hearing Vacated); Filed by Jamie Marrs (Plaintiff)

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  • 11/25/2019
  • Docketat 3:37 PM in Department 20, Dalila Corral Lyons, Presiding; Court Order

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  • 11/25/2019
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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46 More Docket Entries
  • 07/17/2018
  • DocketSummons Issued; Filed by Clerk

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  • 07/17/2018
  • DocketSummons; Filed by Clerk

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  • 07/13/2018
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 07/13/2018
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL EX PARTE

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  • 06/22/2018
  • DocketORDER TO SHOW CAUSE HEARING

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  • 06/22/2018
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 06/22/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/22/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 05/25/2018
  • DocketCOMPLAINT FOR DAMAGES FOR (1) FRAUDULENT (BAD FAITH) EVICTION [VIOLATION OF LOS ANGELES MUNICIPAL CODE 151.09 A 8.] AND ETC...

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  • 05/25/2018
  • DocketComplaint; Filed by Jamie Marrs (Plaintiff)

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Tentative Rulings

Case Number: BC707714    Hearing Date: February 11, 2020    Dept: 20

Tentative Ruling

Judge David J. Cowan

Department 20


Hearing Date: Tuesday, February 11, 2020

Case Name: Marrs v. Shaker

Case No.: BC707714

Motion: Summary Adjudication of Affirmative Defenses

Moving Party: Plaintiffs Jamie Marrs and Elias Marrs

Responding Party: Defendant Della Shaker

Notice: OK


Ruling: Plaintiffs’ Motion for Summary Adjudication is GRANTED as to affirmative defenses 1, 2, 3, 4, 6, 7, 8, 9, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22, as stated in the Amended Answer.

The Motion is DENIED as to defenses 5, 10, 12, and 23.

Moving party to give notice.


INTRODUCTION

On May 25, 2018, Plaintiffs filed their Complaint alleging causes of action for unlawful eviction and fraudulent eviction.

On October 5, 2018, Shaker filed an Answer alleging 30 affirmative defenses.

On November 5, 2018, Shaker filed a First Amended Answer alleging 23 affirmative defenses.

On June 11, 2019, Defendant Della Shaker (“Shaker”) served a set of answers to form interrogatories. In answering Form Interrogatory no. 15.1, Shaker stated that she had “no facts, persons, or documents to support” affirmative defenses asserted in her Amended Answer, specifically defenses 2-9, 15, 20, and 22. Shaker noted that discovery was ongoing and that she reserved the right to amend her responses—though the responses were never amended.

On July 31, 2019, Plaintiffs Jamie Marrs (“Jamie”) and Elias Marrs (“Elias”) filed a Motion for Summary Adjudication of several of Shaker’s affirmative defenses and a supporting Separate Statement.

On November 6, 2019, Shaker filed an Opposition to the Motion and objections to the Separate Statement. Shaker also filed a single objection to the Declaration of JoAnne Belisle in support of the Motion.

On November 15, 2019, Jamie and Elias filed a Reply and two objections to the Declaration of Cyril Czajkowskyi in support of the Opposition.

On January 10, 2020, Jamie and Elias filed a supplemental brief in support of the Motion.

On January 27, 2020, Shaker filed a supplemental opposition.

DISCUSSION

The Court will first address the parties’ evidentiary objections and general arguments (i.e., those arguments not pertaining to a particular affirmative defense).

Evidentiary Objections

Both of Plaintiffs’ objections to the Declaration of Cyril Czajkowskyi are OVERRULED. There is no indication that Czajkowskyi lacks personal knowledge of the deposition or the related exhibits.

Defendant’s objection to the Declaration of JoAnne Belisle is OVERRULED. Belisle received interrogatory responses from Defendant—and thus has sufficient personal knowledge of Defendant’s service of those responses.

Burdens on Motion for Summary Adjudication

A party moving for summary adjudication “may meet its burden [of production] by showing the opposing party provided factually devoid responses in answering a written interrogatory requesting all facts to support a claim.” (Silva v. See’s Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 259; Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 105-106) The opposing party’s reservation of the right to amend or supplement responses is irrelevant if the responses are not in fact amended before the motion for summary adjudication. (Id.) Once the moving party meets its burden of production, “the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a genuine issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 857; Silva, supra, at 259) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at 850) Summary adjudication of an affirmative defense is proper if “no triable issue of material fact existed as to the defense and that plaintiff was entitled to judgment on the defense as a matter of law.” (North Coast Women’s Care Medical Group, Inc. v. Superior Court (2008) 44 Cal.4th 1145, 1150)

Here, Shaker’s response to Form Interrogatory 15.1 is the most relevant. Form Interrogatory 15.1 asks the responding party to identify affirmative defenses and to “state all facts upon which you base . . . the affirmative defense.” Regarding affirmative defenses 2-9, 15, 20, and 22, Shaker indicated that she had “no facts, persons or documents to support this affirmative defense,” and reserved the right to amend the response. It is undisputed that Shaker never amended her interrogatory responses. Thus, since it is the defendant’s burden to provide evidence supporting affirmative defenses, the Marrs have met their burden of production for summary adjudication of each of those defenses which Shaker indicated she had no facts to support. Shaker therefore has the burden of establishing, by admissible evidence, that there is a triable issue of fact as to each defense. Shaker relies primarily on her August 6, 2019 Deposition for this purpose. However, the Deposition simply elaborates further on the flooding, damages, renovations, and eviction intentions she discusses in her non-devoid interrogatory responses, and thus generally fails to establish a triable issue of material fact as to these defenses—except as to her fifth affirmative defense, to which these facts are relevant.

The Marrs have not met their burden of production as to several other affirmative defenses, however. Shaker’s interrogatory responses pertaining to affirmative defenses 1, 10, 11, 12, 13, 14, 16, 17, 18, 19, 21, 23 were not “factually devoid.” However, as Shaker consistently fails to establish that the factual issues she identifies are material or relevant to these defenses, there nonetheless appears to be no triable issue of material fact as to several of these defenses, as will be seen below.

Affirmative Defenses

General Points

The Marrs’ separate statement identifies 23 issues and asserts there is no triable issue of material fact as to any of them, relying on Shaker’s responses to Form Interrogatory 15.1(a). Shaker’s opposing separate statement contains virtually identical responses to issues 1 through 22, despite each issue identifying and addressing distinct affirmative defenses. Her response to issue #23 contains a brief addition: “Defendant objected to this Form Interrogatory 15.1 with respect [t]o affirmative defense no. 23.” Shaker’s boilerplate response reads as follows:

“Objection: Hearsay, lack of foundation, no personal knowledge per Defendant's Objections to Belisle Decl. As stated, Issue No. 1 is vague and ambiguous. The supporting evidence does not cite the complete response to Form Interrogatory No. 15.1. Issue No. 1 merely identifies the affirmative defense and fails to state what is to be adjudicated, such as whether the affirmative defense has merit or no merit. The affirmative defense identified in Issue No. 1 is said in the notice of motion to be in reference to Shaker's answer to the complaint which has been superseded before the filing of the motion by Shaker's first amended answer to the complaint.”

The Court rejects each of these arguments. First, Shaker’s objections to Belisle’s declarations are rejected for the reasons explained earlier.

Second, though Shaker asserts each and every issue is vague and ambiguous, she does not address or elaborate on this point in her Opposition or Supplemental Opposition. As a result, it is entirely unclear why Shaker thinks these issues are vague and/or ambiguous. Shaker argues in her Supplemental Opposition (filed after her Opposing Separate Statement) that the Marrs have misrepresented her affirmative defenses by 1) appending headers that do not appear in the First Amended Answer, which did not identify any affirmative defenses with headings, and 2) failing to fully state the affirmative defense by, for example, including citations to the relevant statutes. This issue has been remedied in the supplemental briefing, as the Marrs have engaged with the merits of each affirmative defense, including quoted statutes where necessary. The Marrs’ chosen headers for Shaker’s unlabeled affirmative defenses appear accurate.

Third, Shaker argues that Plaintiffs have failed to meet their burden of proof because of deficiencies in the Separate Statement, specifically, that the Separate Statement relies upon incomplete quotations of Shaker’s form interrogatory responses, specifically her responses to Form Interrogatory 15.1(b) and (c), in which she provided relevant documents. The Court will consider these produced documents in determining whether there is a triable issue of material fact, but it is not clear that this is a pleading deficiency requiring denial of the Motion.

Fourth, Shaker argues that “the Marrs merely identify an affirmative defense without specifying what it is about that issue or defense that is to be adjudicated.” The Court rejects this confusing argument for two reasons. First, Shaker does not provide any authority indicating the Marrs were required to explicitly indicate that the affirmative defenses should be adjudicated on the merits. Second, a party may only move for summary adjudication of an affirmative defense “if the party contends . . . that there is no merit to an affirmative defense as to any cause of action.” (CCP § 473c(f)(1)) Thus, the Marrs’ motion for summary adjudication necessarily seeks adjudication of the merits of Shaker’s affirmative defenses.

Fifth, Shaker argues the Motion must be denied because it relies upon her original Answer rather than the First Amended Answer. This is factually incorrect—the Motion makes reference to Shaker’s affirmative defenses by number, and the content of those numbered references only match the affirmative defenses in the First Amended Answer, not those in the original Answer. Moreover, the Motion relies upon form interrogatory responses by Shaker served months after the First Amended Answer was filed, and the responses pertained to the affirmative defenses in the amended answer. This argument is rejected.

In her supplemental opposition, Shaker further argues the Motion must be denied for noncompliance with CCP § 473c(f)(1) and (p)(1) because the Marrs were “required to show that there is no merit to an affirmative defense relative to the alleged causes of action,” but failed to treat each affirmative defense relative to a specific cause of action. This argument is wrong for two reasons. First, the Marrs’ complaint contains only two causes of action: fraudulent/bad faith eviction and wrongful eviction. Shaker’s affirmative defenses fail to identify a specific cause of action they are directed against; there is no reason the Marrs should be required to identify the relevant causes of action for each defense when Shaker felt it unnecessary to do so herself. Second, CCP § 473c(f)(1) specifically permits a party to seek summary adjudication of an affirmative defense by contending that the defense lacks merit “as to any cause of action.” Because Shaker has raised affirmative defenses without specifying which cause of action each defense is directed to, Marrs’ assertion that those defenses lack merit need not specify a cause of action either; the Marrs have implicitly asserted the defense lacks merit as to any cause of action, as is proper on a motion for summary adjudication of affirmative defenses.

Triable Issues of Material Fact

In her Opposing Separate Statement, Shaker claims there is a factual dispute as to each issue (except issue #23), citing the following as evidence:

“See Exhibits A and B attached to Shaker's Opposition. Exhibit A re Shaker Deposition at 8:4-6; 8:20-10:8; 12:18-19; 14:16-18; 22:22-23:6; 23:7-14; 25:8-16; 32:8-13; 36:1-37:15; 62:9-63:3; 65:3-20. Exhibit B are photographs attached as Exhibits 6-10 to Shaker's deposition transcript containing photographs of the property during renovation.” (See generally Opposing Separate Statement)

Generally, these exhibits concern the flooding Shaker discovered shortly after the Marrs vacated the unit (pursuant to Shaker’s eviction notice), the damages and renovations, and Shaker’s intentions in evicting the Marrs. Shaker, in her Opposition, Opposing Separate Statement, and Supplemental Opposition, does not attempt to explain how these facts are relevant to any of the affirmative defenses. In fact, it appears logically impossible for these facts to support several of Shaker’s defenses, as will be shown later. The party asserting affirmative defenses has the burden of establishing those defenses. Here, Shaker has consistently failed to do so. Indeed, the Court’s review of her Opposing Separate Statement revealed that Shaker made identical responses to material issues 1 through 22, despite each issue dealing with a different affirmative defense.[1] Her response to issue #23 contains a brief addition: “Defendant objected to this Form Interrogatory 15.1 with respect [t]o affirmative defense no. 23.”

The Court previously ordered the parties to file supplemental briefing specifically addressing the merits and evidence in support of Shaker’s affirmative defenses. The Marrs’ Supplemental Brief specifically addresses each affirmative defense—though typically very briefly—but Shaker’s Supplemental Opposition fails to identify facts supporting her affirmative defenses. In her Supplemental Opposition, Shaker contends there is a triable issue of material fact as to whether the Marrs caused flooding of the residence and resulting property damage and claims this issue is material to affirmative defenses 1, 2, 3, 4, 5, 7, 8, 9, 10, 12, 13, 14, 15, 18, 19, 21, and 22. However, Shaker does not explain how this sole triable issue is legally relevant to any of her affirmative defenses, which include such varied defenses as laches, estoppel, litigation privilege, acts of third parties, and unreasonable reliance. A triable issue of material fact “is not created by . . . ‘cryptic, broadly phrased, and conclusory assertions.’” (Id.) Further, Shaker contends that defenses 6, 11, 16, 17, and 20 are purely legal issues.

First Affirmative Defense

In her Amended Answer, Shaker contends that the Marrs’ Complaint fails to state facts sufficient to constitute a cause of action. In determining whether a complaint states a cause of action, the Court must “take as true the well-pleaded factual allegations of the complaint, and “not the evidence or the facts alleged.” (Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1007; see Beatty v. Oakland Sheet Metal Supply Co. (1952) 111 Cal.App.2d 53, 61 (answer asserting failure to state a claim is “in effect a general demurrer”)) Shaker bears the burden of establishing any inadequacy of the Complaint. (Buford v. State of California (1980) 104 Cal.App.3d 811, 818)

Shaker, in her Supplemental Opposition, claims that the issue of whether “the flooding and resulting property damages were caused by [the] Marrs” presents a triable issue of material fact regarding this defense—but does not explain why, instead lumping this defense in with a dozen other unrelated defenses. In fact, Shaker’s evidence or allegations are irrelevant to this defense, which considers only the Marrs’ pleadings and takes the allegations therein as true. Shaker does not supply any argument as to how the Marrs’ Complaint fails. As Shaker has now been given two opportunities to identify facts or argument supporting this defense and failed to do so both times, the Marrs’ motion for summary adjudication is GRANTED as to this affirmative defense.

Second Affirmative Defense

In her Amended Answer, Shaker contends that the Marrs “consent[ed] to the alleged acts or conditions.” Shaker’s Answer does not indicate which acts or conditions the Marrs allegedly consented to or when they consented. Shaker bears the burden of proof in asserting this affirmative defense. (Evid. Code § 500) “A plaintiff may express consent by words or acts that are reasonably understood by another person as consent. . . . [or] express consent by silence or inaction if a reasonable person would understand that the silence or inaction intended to indicate consent.” (See CACI 1302; Heine v. Wright (1926) 76 Cal.App. 338, 342-43)

In their Supplemental Brief, the Marrs correctly claim that Shaker has failed to set forth any facts supporting this defense. Shaker, in her Supplemental Opposition, lumps this defense with several others in claiming there is a triable issue of material fact as to whether “the flooding and resulting property damages were caused by [the] Marrs.” Shaker does not explain how the Marrs’ alleged flooding could possibly show they consented to their own eviction—especially as Shaker only discovered the flooding after successfully evicting the Marrs. As Shaker has now been given two opportunities to identify the facts supporting this defense and explain how they support it, and failed to do so both times, the Marrs’ motion for summary adjudication is GRANTED as to this affirmative defense.

Third Affirmative Defense

In her Amended Answer, Shaker contends that “any negligence and carelessness contributing to the damages and/or injuries” was attributable only to “some entity or individual other than” Shaker. Shaker’s Answer does not indicate who or what was responsible for such negligence or carelessness. Shaker bears the burden of establishing facts to support this defense. (Evid. Code § 500)

In their Supplemental Brief, the Marrs correctly claim that Shaker has failed to set forth any facts supporting this defense. Shaker, in her Supplemental Opposition, lumps this defense with several others in claiming there is a triable issue of material fact as to whether “the flooding and resulting property damages were caused by [the] Marrs.” This issue is obviously irrelevant to whether a third party’s actions absolved Shaker of liability. Shaker does not identify a third party this defense could apply to anywhere in her Deposition, Opposition, Supplemental Opposition, or Opposing Separate Statement. As Shaker has now been given two opportunities to identify the facts supporting this defense and explain how they support it, and failed to even make a good faith effort to prove this defense, the Marrs’ motion for summary adjudication is GRANTED as to this affirmative defense.

Fourth Affirmative Defense

In her Amended Answer, Shaker contends that the Marrs “failed to exercise reasonable care and diligence to mitigate any damages sustained by reason of defendant’s alleged acts.” “A plaintiff who suffers damage as a result of . . . a breach of contract . . . has a duty to take reasonable steps to mitigate those damages and will not be able to recover for any losses which could have been thus avoided.” (Valle de Oro Bank v. Gamboa (1994) 26 Cal.App.4th 1686, 1691) “The burden of proving a plaintiff failed to mitigate damages is on the defendant.” (Agam v. Gavra (2015) 236 Cal.App.4th 91, 111; Candari v. Los Angeles Unified School Dist. (2011) 193 Cal.App.4th 402, 409)

None of Shaker’s pleadings indicate how Shaker contends the Marrs failed to exercise reasonable care or which damages Shaker believes the Marrs could have mitigated. In their Supplemental Brief, the Marrs correctly claim that Shaker has failed to set forth any facts supporting this defense. Shaker, in her Supplemental Opposition, lumps this defense with several others in claiming there is a triable issue of material fact as to whether “the flooding and resulting property damages were caused by [the] Marrs.” Shaker does not identify any way the Marrs could have mitigated their damages. As Shaker has now failed twice to present facts supporting this defense and explain how they support it, despite having the burden of proof, the Marrs’ motion for summary adjudication is GRANTED as to this affirmative defense.

Fifth Affirmative Defense

In her Amended Answer, Shaker contends that any damages the Marrs sustained were “the direct and proximate result of the independent and superseding action of Plaintiffs and other persons or parties, and not due to any act or omission on the part of this defendant.” Shaker bears the burden of proof for this affirmative defense. (Evid. Code § 500)

Here, it seems the Marrs are incorrect in claiming Shaker failed to set forth facts supporting this defense. Though Shaker again lumps this defense with several others, the triable issue of material fact as to whether “the flooding and resulting property damages were caused by [the] Marrs” is material to this defense, as the Marrs’ intentional flooding of the unit could reasonably be deemed a superseding act. As there is a triable issue of material fact, the Marrs’ motion for summary adjudication is DENIED as to this affirmative defense.

Sixth Affirmative Defense

In her Amended Answer, Shaker contends the Marrs’ causes of action are barred by the statute of limitations, specifically, CCP sections “337, 337.1, 337.15, 337.5, 338, 339, 340, 343, and[] California Business and Professions Code Section 17208.” In her Supplemental Opposition, Shaker claims this defense “raise[s] legal issues that are not factually driven,” ceding that there are no factual disputes as to this defense.

In their Supplemental Brief, the Marrs argue that CCP § 338 is the statute of limitations applicable to their claims for unlawful and fraudulent eviction, which has a 3-year period to bring the claims. The Marrs’ Complaint was filed on May 25, 2018, so the claims therein would be barred if three years had passed since the conduct alleged in the Complaint. However, the Complaint specifically alleged that Shaker came into possession of the property on January 28, 2016, within three years of the Complaint being filed. Thus, the Marrs established that their claims were not barred by the 3-year period in CCP § 338. In her Supplemental Opposition, Shaker does not dispute this argument or argue that another provision applies. Thus, Shaker has failed to support her defense with facts or argument, while the Marrs have shown entitlement to a favorable verdict on this defense. Accordingly, the motion is GRANTED as to this defense.

Seventh Affirmative Defense

In her Amended Answer, Shaker contends that the Marrs “have waived and/or released their right to maintain the action filed in this case.” Waiver of a right is “a voluntary and knowing act done with sufficient awareness of the relevant circumstances and likely consequences,” and can be established by conduct inconsistent with invocation of that right. (Roberts v. Superior Court (1973) 9 Cal.3d 330, 343) Shaker bears the burden of establishing waiver as an affirmative defense. (Stafford v. Attending Staff Assn. of LAC + USC Medical Center (2019) 41 Cal.App.5th 629, 639)

Shaker fails to indicate any conduct by the Marrs that allegedly constitutes waiver. At this point, Shaker has not set forth any facts supporting, or factual disputes relevant to, this defense. Shaker, in her Supplemental Opposition, lumps this defense with several others in claiming there is a triable issue of material fact as to whether “the flooding and resulting property damages were caused by [the] Marrs.” This conduct cannot establish waiver of the right to bring a fraudulent eviction action. As Shaker has now failed twice to present facts supporting this defense and explain how they support it, despite having the burden of proof, the Marrs’ motion for summary adjudication is GRANTED as to this affirmative defense.

Eighth Affirmative Defense

In her Amended Answer, Shaker claims the Marrs are “estopped by action of law or by conduct from maintaining the action filed in this case, including, but not limited to the doctrines of res judicata and collateral estoppel.” Res judicata, or claim preclusion, arises when the same parties subsequently litigate a previously litigated claim. Collateral estoppel, or issue preclusion, generally arises when the same parties relitigate a previously litigated issue. Under the doctrine of estoppel by conduct, or equitable estoppel, “[w]henever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict [the induced belief].” (San Diego Municipal Credit Union v. Smith (1986) 176 Cal.App.3d 919, 922–923) Shaker bears the burden of proof on these affirmative defenses. (Evid. Code § 500)

Here, Shaker has not identified any prior cause of action between her and the Marrs, and instead relies upon the issue of whether the Marrs flooded the unit—which is clearly irrelevant here. Thus, res judicata and collateral estoppel are inapplicable here. Moreover, Shaker has not identified conduct that allegedly triggers equitable estoppel and has not identified any belief allegedly induced by the Marrs’ conduct. Accordingly, Shaker has failed to make even a minimal showing on this defense, so the motion for summary adjudication is GRANTED as to this affirmative defense.

Ninth Affirmative Defense

In her Amended Answer, Shaker claims every cause of action in the Marrs’ Complaint is “not maintainable under the equitable doctrine of laches.” “In order to prevail on a defense of laches, a party must establish the existence of inexcusable delay in bringing an action and resultant prejudice to the defense.” (Ponce v. Graceous Navigation, Inc. (1981) 126 Cal. App. 3d 823, 829) Moreover, laches is generally available only in equitable actions, not actions at law—such as fraudulent eviction actions seeking damages. (Bodily v. Parkmont Village Green Home Owners Assn. (1980) 104 Cal. App. 3d 348, 358)

Once again, Shaker relies upon the issue of whether the Marrs flooded the unit, and fails to even attempt to explain how that is legally relevant here. Shaker fails to establish any prejudice to her defense, and Shaker has no evidence the Marrs delayed in bringing this action. Thus, Shaker has not carried her burden and the motion for summary adjudication is GRANTED as to this affirmative defense.

Tenth Affirmative Defense

In her Amended Answer, Shaker claims the Marrs “are barred from recovery in this case under the doctrine of unclean hands.” The doctrine of unclean hands only applies to bar a party’s relief when “the improper conduct [is] ‘in the particular transaction or connected with the subject matter of the litigation that is a defense.’” (Brown v. Grimes (2011) 192 Cal.App.4th 265, 283) The party’s misconduct “must be so intimately connected to the injury another with the matter for which he seeks relief, as to make it inequitable to accord him such relief.” (Bradley Co. v. Bradley (1913) 165 Cal. 237, 242) The burden is, of course, on the party asserting the affirmative defense of unclean hands.

For the second time, it appears Shaker has actually established a triable issue of material fact as to an affirmative defense—though, as previously mentioned, this defense is treated exactly the same way as several others, because Shaker relies solely on the triable issue of fact as to whether the flooding was caused by the Marrs. If the Marrs flooded the unit before vacating, as Shaker claims, this could support an unclean hands defense, as it may be inequitable to afford relief for fraudulent eviction if the evicted party engages in retaliatory property damage before vacating. The Marrs simply assert that Shaker has not provided any facts showing “inequitable conduct,” but here, that seems to be incorrect as Shaker’s deposition provides evidence that the Marrs may have flooded the unit before leaving. As there is a triable issue of material fact, the Marrs’ motion for summary adjudication is DENIED as to this affirmative defense.

Eleventh Affirmative Defense

In her Amended Answer, Shaker claims that “Plaintiffs have failed to state a claim upon which attorneys’ fees can be awarded.” In her Supplemental Opposition, Shaker claims this defense “raise[s] legal issues that are not factually driven,” ceding that there are no factual disputes as to this defense. The Marrs seek attorney’s fees under Los Angeles Municipal Code (“LAMC”) § 151.30(I)(1), which provides for attorney’s fees if the landlord acts in bad faith in evicting a tenant under LAMC § 151.09(A)(8), as the Marrs claim Shaker did here. Shaker does not address this argument or offer any argument of her own in her Supplemental Opposition. Thus, the Marrs have carried their burden of establishing no triable issue of fact and entitlement to a favorable judgment on the affirmative defense; accordingly, the motion is GRANTED as to this defense.

Twelfth Affirmative Defense

In her Amended Answer, Shaker claims “that the actions complained [of] were made without malice or wrongful intent on the part of defendant and in a reasonable and good faith belief of her legal right to perform the actions complained of.” LAMC § 151.30(B) provides that a landlord evicting for their own use as a primary residence “must in good faith intend that the owner ... will occupy the rental unit within three months after the existing tenant vacates the rental unit, and that the owner ... will occupy the rental unit as a primary residence for a period of two consecutive years.” Shaker has adduced evidence, by way of her deposition, that the property was damaged by flooding after the Marrs were evicted, preventing her from moving in promptly. Shaker also put forth evidence that the property was unoccupied and being renovated before she moved in. These facts create a triable issue of material fact as to whether Shaker acted in good faith notwithstanding the statutory presumption that a landlord who moves in late acted in bad faith. Accordingly, the motion is DENIED as to this defense.

Thirteenth Affirmative Defense

In her Amended Answer, Shaker claims the Marrs “failed to comply with the provisions of Civil Code Sections 1928, 1929, 1930, 1931, and 1941.2.” These provisions do not appear to create an affirmative defense against the Marrs’ claims for unlawful eviction and fraudulent eviction here, which have nothing to do with the conditions of the unit. These Civil Code sections pertain to the tenant’s responsibilities of repair and care in occupying the rental property; but a breach of these responsibilities does not constitute an affirmative defense to a cause of action for fraudulent eviction, especially because the eviction was completed before Shaker discovered the flooding damage. Thus, the Marrs’ motion for summary adjudication is GRANTED as to this “affirmative defense.”

Fourteenth Affirmative Defense

In her Amended Answer, Shaker contends that any damages awarded to the Marrs “should be offset by the amounts, if any, owed to defendant pursuant to the terms of the rental agreement.” A party claiming damages should be offset bears the burden of proof in establishing owed rent. (Conrad v. Ball Corp. (1994) 24 Cal.App.4th 439, 444) “The test [in evaluating an offset defense] is whether the defendant could have maintained an independent action on the demand attempted to be set off.” (Cuneo v. Lawson (1928) 203 Cal. 190, 196)

Shaker has not even produced the rental agreement that would govern this defense, nor any evidence the Marrs owed rent. Once again, Shaker relies upon the issue of whether the Marrs flooded the unit, and fails to even attempt to explain how that is legally relevant here. Accordingly, Shaker is incapable of proving this defense and the Marrs’ motion for summary adjudication is GRANTED as to this affirmative defense.

Fifteenth Affirmative Defense

In her Amended Answer, Shaker contends that “all alleged efforts to recover possession of the premises are privileged pursuant to the litigation privileges pursuant to Civil Code § 47(b).” Civil Code § 47(b) states that a “privileged publication or broadcast is one made . . . [i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law.”

Shaker once again lumps this defense in with her other defenses, arguing summary adjudication of this defense is improper because there is a triable issue of material fact as to whether “the flooding and resulting property damages were caused by [the] Marrs.” This is perhaps the most egregious example yet, as this issue does not involve any publication or broadcast, much less one privileged under 47(b). Shaker completely fails to show how flooding could be relevant to litigation privilege. As Shaker has now failed twice to present facts supporting this defense and explain how they support it, despite having the burden of proof, the Marrs’ motion for summary adjudication is GRANTED as to this affirmative defense.

Sixteenth Affirmative Defense

In her Amended Answer, Shaker claims the Marrs’ Complaint fails to state a cause of action supporting punitive or exemplary damages because the Complaint “violate[s] defendant’s right to procedural due process under the Fourteenth Amendment of the United States Constitution, and Article 1, Section 7 of the Constitution of the State of California.” In her Supplemental Opposition, Shaker claims this defense “raise[s] legal issues that are not factually driven,” ceding that there are no factual disputes as to this defense. An award of punitive damages is unconstitutional under the Fourteenth Amendment if it is “grossly excessive.” (BMW of North America v. Gore (1996) 517 U.S. 559, 575)

Surprisingly, though Shaker admits she has no facts to support this defense, she also does not provide any legal argument in her Supplemental Opposition. It is unclear why Shaker expects her complex constitutional affirmative defenses to survive summary adjudication without any supporting facts or argument. Moreover, the Complaint seeks punitive damages “in an amount according to proof at trial,” so there is no basis to claim the requested punitive damages are “grossly excessive.” It is legally impossible to find in Shaker’s favor on this defense with the facts currently before the Court. Accordingly, the motion is GRANTED as to this affirmative defenses.

Seventeenth Affirmative Defense

In her Amended Answer, Shaker claims the Marrs’ Complaint fails to state a cause of action supporting punitive or exemplary damages because the Complaint “violates her constitutional right to protection against excessive fines “as provided in the Eighth Amendment of the United States Constitution and Article 1, Section 17 of the Constitution of the State of California,” and violates her “right to substantive due process as provided in the Fifth and Fourteenth Amendments of the United States Constitution and the Constitution of the State of California.” In her Supplemental Opposition, Shaker claims this defense “raise[s] legal issues that are not factually driven,” ceding that there are no factual disputes as to this defense.

Shaker does not provide any legal argument on these constitutional defenses in her Supplemental Opposition. Indeed, as the Marrs seek punitive and exemplary damages under various California and Los Angeles statutes, such as Civil Code § 3294 and LAMC 159.30(B), this defense amounts to claiming those statutes are unconstitutional under the Eighth Amendment. There is no legal authority finding these statutes unconstitutional as imposing excessive fines, and Shaker fails to identify any substantive due process right violated here. Accordingly, as the Court is unable to find in Shaker’s favor on this issue, the motion is GRANTED as to this defense.

Eighteenth Affirmative Defense

In her Amended Answer, Shaker claims the Marrs’ Complaint “fails to state facts sufficient to warrant an award of exemplary or punitive damages.” The burden of proof is on Shaker to establish insufficiency of the pleadings. (Buford, supra, 104 Cal.App.3d at 818) “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civil Code § 3294(a))

The only factual issue asserted by Shaker is, unsurprisingly, that the Marrs flooded the property. Shaker, once again, fails to even argue that the flooding is related to any insufficiency in the pleadings, and does not positively identify any defect in the pleadings. Rather, the Marrs have specifically alleged fraud in the eviction, alleging that Shaker violated LAMC § 151.09 with fraudulent intent by evicting the Marrs without any intent of moving in. Accordingly, Shaker has failed to carry her burden on this defense, and the motion for summary adjudication is GRANTED as to this affirmative defense.

Nineteenth Affirmative Defense

In her Amended Answer, Shaker claims her “alleged practice is not unlawful, unfair, or likely to mislead.” Shaker does not clarify what is referred to by “alleged practice.” The only fact offered in support is that the Marrs flooded the property. Even assuming the Marrs did flood the property upon vacating it, after being served with a notice of eviction, this fact would be entirely irrelevant to the fairness or honesty of Shaker’s conduct in evicting the Marrs. Thus, since Shaker has failed to plead a cognizable and coherent affirmative defense and failed to adduce any facts in support thereof, the motion for summary adjudication is GRANTED as to this defense.

Twentieth Affirmative Defense

In her Amended Answer, Shaker claims the Marrs have an adequate remedy at law. In her Supplemental Opposition, Shaker claims this defense “raise[s] legal issues that are not factually driven,” ceding that there are no factual disputes as to this defense. “Generally, where damages afford an adequate remedy by way of compensation for breach of contract, equitable relief will be denied.” (Thayer Plymouth Center, Inc. v. Chrysler Motors Corp. (1967) 255 Cal.App.2d 300, 306) Here, the Marrs are seeking damages, not equitable relief, in an action at law for unlawful and fraudulent eviction. Accordingly, the existence of an adequate remedy at law is not an applicable defense. The motion for summary adjudication is therefore granted as to this affirmative defense.

Twenty-First Affirmative Defense

In her Amended Answer, Shaker claims that the Marrs “had a reasonably available alternative source of supply from which to obtain the good/service.” Shaker fails to indicate the nature of this alternative source, the “good/service” referred to (potentially rental accommodations), or the availability of this alternative source. The only fact offered in support is that the Marrs flooded the property, which does not appear to be relevant at all. Even assuming this fact, Shaker’s defense is incomprehensible without additional facts or clarification, as it is impossible to determine what Shaker believes the Marrs could or should have done. Thus, since Shaker has failed to plead a cognizable and coherent affirmative defense and failed to adduce any facts in support thereof, the motion for summary adjudication is GRANTED as to this defense.

Twenty-Second Affirmative Defense

In her Amended Answer, Shaker claims that “the alleged deceptive statements were such that no reasonable person . . . could have reasonably relied on or misunderstood defendant’s statement for claims of fact.” Though Shaker fails to specifically identify the alleged deceptive statements, they are presumably Shaker’s representations that she would move into the property after the Marrs vacated under LAMC § 151.09. The only fact Shaker asserts supports this defense is that the Marrs flooded the property, which does not appear to be relevant at all, as this defense pertains exclusively to Shaker’s fraudulent statements in evicting the Marrs. Shaker fails to explain why the Marrs, as tenants, should not have relied upon her representations as landlord. Thus, since Shaker has failed to adduce any facts in support of this defense, the motion for summary adjudication is GRANTED as to this defense.

Twenty-Third Affirmative Defense

In her Amended Answer, Shaker claims that she “is not liable on Plaintiffs’ causes of action because [she] acted at all times in reasonable and good faith reliance on the opinion and advice of counsel based on counsel’s full and complete understanding of all relevant facts.” Moreover, Shaker objects that the Marrs’ Separate Statement re: issue 23 misstates her response to form interrogatory 15.1 on this issue. There, Shaker did not state that she had “no facts” to support her argument; rather, she objected that providing those facts would violate the attorney-client privilege and produce attorney work product. The Marrs did not seek to compel a further answer to this interrogatory or otherwise dispute this objection. Accordingly, Shaker’s response cannot be considered factually devoid, even though Shaker has not yet produced any facts to support it. The motion is thus DENIED as to this defense, as the Marrs have failed to establish that there is no triable issue of material fact.

CONCLUSION

For the foregoing reasons, the Motion for Summary Adjudication is GRANTED as to affirmative defenses 1, 2, 3, 4, 6, 7, 8, 9, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22, as stated in the Amended Answer.

The Motion is DENIED as to affirmative defenses 5, 10, 12, and 23.

Moving party to give notice.


[1] Shaker’s response to material issue #23 contains a brief addition: “Defendant objected to this Form Interrogatory 15.1 with respect [t]o affirmative defense no. 23.”