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Tentative Ruling
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Kerry Moriarty vs Gail Provizer et

Case No: 17CV00592
Hearing Date: Fri Jan 05, 2018 9:30

Nature of Proceedings: Motion: Summary Judgment/Adjudication

Tentative Ruling: The court denies defendants Gail Provizer and Harold Provizer’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication.

 

Background: This case began as an unlawful detainer action (“UDA”). Plaintiff Kerry Moriarty filed a first amended complaint seeking possession of premises at 74 Olive Mill Road in Santa Barbara and back rent from defendants Gail Provizer and Harold Provizer. Defendants filed a notice that possession of the premises was restored on March 17, 2017, and is no longer at issue. When possession is delivered to the lessor before trial, Civil Code § 1952.3(a) provides that the case becomes an ordinary civil action and the lessor may obtain relief authorized by Civil Code § 1951.2. Under Civil Code § 1951.2(a)(1) and (2), a lessor may recover unpaid rent before termination of the tenancy, and unpaid rent after termination. Trial is scheduled for January 19, 2018.

Motion: Defendants move for summary judgment or, in the alternative, summary adjudication of the following issues: summary adjudication of the unlawful detainer cause of action; summary adjudication of the prayer for attorney fees; and summary adjudication of the affirmative defense of breach of the implied warranty of habitability.

1. Summary Judgment Standards: Summary judgment is appropriate where there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. CCP § 437c(c). “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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.” CCP § 437c(f)(1).

“The party moving for summary judgment [or adjudication] bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and 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 triable issue of material fact.” Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 850 (2001). “A defendant bears 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. (§ 437c, subd. (p)(2).)” Id.

“All that the defendant need do is to ‘show that one or more elements of the cause of action . . . cannot be established’ by the plaintiff. (Code Civ. Proc., § 437c, subd. (o)(2).) In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action--for example, that the plaintiff cannot prove element X. Although he remains free to do so, the defendant need not himself conclusively negate any such element--for example, himself prove not X.” Id. at 853-854. “There is no obligation on the opposing party … to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element … necessary to sustain a judgment in his favor.” Consumer Cause, Inc. v. Smilecare, 91 Cal.App.4th 454, 468 (2001).

2. Summary Judgment/Adjudication of Unlawful Detainer Cause of Action: Defendants seek summary adjudication of the unlawful detainer cause of action because plaintiff cannot establish an essential element of the cause of action—defendants’ continued possession of the premises. But defendants misconstrue the effect of the conversion of the suit to an ordinary civil action. The damages that can be awarded in the UDA remain. The cause of action is still unlawful detainer without the issue of possession. Defendants contend that, to seek those damages, plaintiff must file an amended complaint. But a plaintiff in a UDA where possession is no longer an issue need only file an amended complaint “if the lessor seeks to recover damages described in paragraph (3) of subdivision (a) of Section 1951.2 or any other damages not recoverable in the unlawful detainer proceeding.” Civil Code § 1952.3(a)(1). Plaintiff does not seek damages under Civil Code § 1951.2(a)(3), so no amended complaint is necessary.

Defendants rely on Lynch & Freytag v. Cooper, 218 Cal.App.3d 603, 607 (1990), in which the appellate court affirmed the court’s judgment to the plaintiff on its supplemental complaint for rent, damages, and attorney’s fees. The case is inapposite because the UDA was converted to a regular civil proceeding when the plaintiff, “apparently fearing a fatal defect in its notice to pay rent or quit, requested permission to ‘withdraw’ the issue of unlawful detainer and to proceed with the action as an ordinary civil suit for breach of contract based on [defendant’s] failure to pay rent due under the sublease.” Id. at 607. It was not a case where the tenant surrendered possession of the property before trial. The appellate court made a note of that distinction and how Civil Code § 1952.3 did not apply. Id. at 608 n6.

Defendants cite Roberts v. Redlich, 111 Cal.App.2d 566, 569 (1952), for the unremarkable proposition that, if a plaintiff fails to prove an unlawful detainer, he cannot be awarded damages in that action. But again, that was not a case where the tenant vacated the premises before judgment. In fact, that was not an unlawful detainer proceeding at all, but an action for rent and damages subsequent to a prior UDA. Again, the plain language of Civil Code § 1952.3(a) provides that the case becomes an ordinary civil action and the lessor may obtain relief authorized by Civil Code § 1951.2 without filing an amended or supplemental complaint.

The court denies the motion for summary judgment or summary adjudication of the unlawful detainer cause of action.

3. Summary Adjudication of Prayer for Attorney Fees: Defendants move for summary adjudication of plaintiff’s prayer for attorney fees. CCP § 437c(f) provides that a party may move for summary adjudication of one or more causes of action within an action, claims for damages, affirmative defenses, or issues of duty. The claims for damages under CCP § 473c(f) are claims for punitive damages. Decastro W. Chodorow & Burns v. Superior Court, 47 Cal.App.4th 410, 421 (1996).

Before filing a motion for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty, the parties must stipulate to the filing of such a motion. CCP § 437c(t)(1). Even then, the court may elect not to allow the filing of such a motion. CCP § 437c(t)(2), (3). Also, the motion must indicate that it is made pursuant to that subdivision, that the parties stipulate to hearing the motion, and that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement; and the notice of motion must be signed by all parties. CP § 437c(4). No stipulation was filed before the motion and the motion does not otherwise comply with the statute. The court cannot and will not summarily adjudicate the prayer for attorney fees.

4. Summary Adjudication of Affirmative Defense of Warranty of Habitability: Defendants seek summary adjudication of the affirmative defense of breach of the implied warranty of habitability. California recognizes a common law implied warranty of habitability in residential leases. Green v. Superior Court, 10 Cal.3d 616, 629 (1974). “[T]he tenant’s obligation to pay rent and the landlord’s warranty of habitability are mutually dependent.” Id. at 635. The tenant “may demonstrate that his nonpayment of rent was justified and that no rent is in fact ‘due and owing’ to the landlord,” thus defeating the unlawful detainer cause of action. Id. “In most cases substantial compliance with those applicable building and housing code standards which materially affect health and safety will suffice to meet the landlord’s obligations under the common law implied warranty of habitability….” Id. at 637.

In the separate statement of undisputed material facts (“SS”), defendants rely on several documents attached to their counsel’s declaration. There are a number of issues with this evidence. Papers filed with a trial court “must be numbered consecutively at the bottom unless a rule provides otherwise for a particular type of document.” CRC 2.109. This also applies to documents submitted in support of law and motion matters. CRC 3.1110(c). Defendants have not consecutively numbered their evidence. “[E]lectronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” CRC 3.1110(f)(4). Defendants have not provided electronic bookmarks to exhibits.

Citation in the separate statement “to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.” CRC 3.1350(d)(3). In their SS, defendants cite to various exhibits without page or line numbers or even in which volume of counsel’s declaration the court can find the exhibit. (Defendants refer to responses to form interrogatories but do not provide the form interrogatories. The court will not look up the applicable form interrogatories on the Judicial Council website and compare the interrogatory to the response buried in defendants’ evidence. That is defendants’ job.) In one instance—SS #20, defendants refer to an opposition but provide no exhibit number.

Failure to comply with the statutory requirement of a separate statement is ground for denying the motion. CCP § 437c(b)(1). The court also has discretionary power to deny summary judgment or adjudication on the basis of failure to comply with CRC 3.1350. Truong v. Glasser, 181 Cal.App.4th 102, 118 (2009). On this ground alone, the court denies summary adjudication of the affirmative defense of breach of the implied warranty of habitability.

Even if the court did not deny the motion for non-compliance, the court would find that defendants have not sustained their burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.

Defendants state that the rental unit required repairs in September 2016 and plaintiff states that repairs were made. [SS #16] Defendants state that plaintiff was aware of conditions in violation of state or local building codes, housing codes, or health codes, conditions of dilapidation, or other conditions in need of repair. (Defendants do not say which of these items, listed in the disjunctive, plaintiff was aware of.) Plaintiff says he was only aware of conditions in need of repair via a phone call from defendant on November 2, 2016. [SS #17] Defendant says the premises were “not maintained in a habitable state throughout the lease term. [SS #19] This is a conclusory statement and is not supported by the evidence cited (the court went to the trouble of locating it) because form interrogatory #75.1 is worded in the disjunctive and plaintiff only admitted that he was aware of certain conditions in need of repair. The fact is disputed.

Defendant found temporary housing for 20 days in November 2017. [SS #20] “Plaintiff did not apply for any permit and no permit was issued for the remediation, repair, abatement of the issues described.” Plaintiff says no permit was required. [SS #21]

Defendant offers a March 1, 2017, notice of violation from the County of Santa Barbara with respect to the property (Exhibit C) and another entitled “Permit History for Parcel 09-313-018 (Exhibit H). [SS ##22. 23] As to Exhibit C, defendants counsel states that Exhibit C is a copy of the Notice of Restoration of Possession and the notice of violation is attached as an exhibit to that notice. He says Exhibit H “was downloaded from the Santa Barbara County’s online website and is believed to be current as of September 20, 2017.”

Defendants do not ask the court to take judicial notice of the notice of violation or the permit history. Evid. Code § 452(c) permits the court to take judicial notice of “Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” “‘Official acts include records, reports and orders of administrative agencies.’” Ordlock v. Franchise Tax Bd., 38 Cal.4th 897, 912 (2006) [citation omitted]. While the court “may take judicial notice of court records and official acts of state agencies (Evid. Code, § 452, subds. (c), (d)), the truth of matters asserted in such documents is not subject to judicial notice.” Arce v. Kaiser Foundation Health Plan, Inc., 181 Cal.App.4th 471, 482 (2010).

Also, there is no foundation for the document downloaded from the County’s website and defendants cannot establish the facts stated therein. “Simply because information is on the Internet does not mean that it is not reasonably subject to dispute.” Huitt v. Southern California Gas Co., 188 Cal.App.4th 1586, 1605 n10 (2010). The truth of the contents of information on a website is not a proper matter for judicial notice, only the fact that the information and website were published. All One God Faith, Inc. v. Organic & Sustainable Industry Standards, Inc., 183 Cal.App.4th 1186, 1198 n10 (2010).

In any event, the information in defendant’s separate statement does not demonstrate that plaintiff is not in substantial compliance with those applicable building and housing code standards which materially affect health and safety. In fact, the separate statement does not even state what the violations of the building codes are. The “Golden Rule of Summary Adjudication” is as follows: “If it is not set forth in the separate statement, it does not exist.” Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co., 133 Cal.App.4th 1197, 1208 (2005).

Plaintiff offers new substantial evidence with its reply. “The general rule of motion practice … is that new evidence is not permitted with reply papers.” Jay v. Mahaffey, 218 Cal.App.4th 1522, 1537 (2013). The inclusion of additional evidentiary matter with the reply “should only be allowed in the exceptional case.” Plenger v. Alza Corp., 11 Cal.App.4th 349, 362 n8 (1992). A trial court has discretion whether to accept new evidence with reply papers, provided it permits the other party an opportunity to respond. Alliant Ins. Services, Inc. v. Gaddy, 159 Cal.App.4th 1292, 1308 (2008).

The court will not accept this new evidence. Defendants’ presentation of facts in the separate statement is so wholly inadequate that an opportunity to bring in new evidence is not warranted. Also, trial is scheduled in two weeks, so accepting the evidence and giving plaintiff an opportunity to respond is not practical.

The court denies defendants Gail Provizer and Harold Provizer’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication.

 
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