Ruling
Stewart et al -v - Triple Star Company, LLC et al Print
Jul 23, 2024 |
CIVSB2205845
Procedural/Factual Background
On March 17, 2022, plaintiffs Ashley Stewart, individually and as successor in
interest of the estate of April Miller, and Jeremy Maul filed their Complaint against Triple
Star Company, LLC; NVA LLC, and Does 1 through 30 alleging the following 15 causes
of action: 1) Breach of Contract; 2) Breach of Covenant of Quiet Enjoyment; 3) Breach
of Warranty of Habitability; 4) Private Nuisance; 5) Negligence; 6) Negligence Per Se; 7)
Premises Liability; 8) Fraud; 9) Violation of California Civil Code section 1942.4; 10)
Intentional Infliction of Emotional Distress; 11) Violation of Business and Professions
Code section 17200; 12) Violation of California Civil Code section 1950.5; 13)
Constructive Eviction; 14) Tenant harassment; and 15) Violation of California Civil Code
section 1942.5 (Retaliation). Plaintiffs voluntarily dismissed the eighth cause of action
2
for Fraud, the tenth cause of action for Intentional Infliction of Emotional Distress, and
the fifteenth cause of action for violation of Civil Code section 1942.5 without prejudice
on July 17, 2023.
Plaintiffs allege that Maul and Defendants entered into a written, lease
agreement around October 1, 2016. In 2018, April Miller moved in. On or around May 1,
2020, Maul delivered a 60-day notice to vacate, and in or around July 2020, Miller
signed a written lease with Defendants under her own name. Miller resided there until
her death on or around November 28, 2021. It is alleged the conditions of the property
caused her death. Specifically, Plaintiffs allege the property lacked basic characteristics
necessary for human habitation as prescribed by Civil Code section 1941.1, and was a
substandard unit pursuant to Health and Safety Code section 17920.3. During their
tenancy, Plaintiffs regularly complained to Defendants about slum-housing and the
following conditions: inadequate weather protection, inadequate plumbing and gas,
dampness and mold, inadequate heating, inadequate sanitation, vermin infestation,
structural hazards, nuisance, failure to maintain premises in a good and safe condition,
inadequate mechanical equipment. No repairs or maintenance were performed, and
these conditions remained unabated. It is also alleged code enforcement issued a
number of notice of violations as to the property. Eventually Miller discovered black
mold in her apartment, and ultimately, Plaintiffs allege she died as a result of the
exposure.
On April 25, 2024, Defendant and Cross-Complainant Triple Star Company, LLC
filed the instant Motion for Summary Judgment, or in the alternative Adjudication as well
3
as a separate statement of undisputed material facts, the declaration of Kelly M. Danker
and attached Exhibits A through O. No Opposition has been filed.
Discussion
Statement of the Law. Although summary judgment might no longer be
considered a “disfavored” procedure, the rule continues that the moving party’s
evidence must be strictly construed, while the opposing party’s evidence must be
liberally construed. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832.) The
court’s sole function on a motion for summary judgment is issue finding, not issue
determination. (See Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.) The judge must
determine from the evidence submitted whether there is a triable issue as to any
material fact. (Code Civ. Proc. § 437c, subd. (c); see, Zavala, supra, 58 Cal.App.4th
915, 926.) If there is a single such issue, the motion must be denied. (Versa
Technologies, Inc. v. Superior Court (1978) 78 Cal.App.3d 237.)
The moving party bears the initial burden of production to make a prima facie
showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850-851.) Where the plaintiff seeks summary judgment, the
burden is to produce admissible evidence on each element of a cause of action entitling
him or her to judgment. (Code Civ. Proc. § 437c, subd. (o)(1).) Where the defendant
seeks summary judgment, the burden is to show that one or more elements of a cause
of action, even if not separately pleaded, cannot be established, or that there is a
complete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) This
means that a plaintiff who bears the burden of proof at trial by a preponderance of
evidence must produce evidence that would require a reasonable trier of fact to find any
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underlying material fact more likely than not. (Aguilar, supra, 25 Cal.4th 826, 851.) If the
moving party carries this burden, it causes a shift, and the opposing party is then
subject to its own burden of production to make a prima facie showing that a triable
issue of material fact exists. (Ibid.)
Where the plaintiff seeks summary judgment, a plaintiff has met his burden of
showing that there is no defense to a cause of action if that party has proved each
element of the cause of action entitling the party to judgment on that cause of action.
(Code Civ. Proc. § 437c, subd. (p)(1).) The opposing party’s failure to file counter-
declarations does not relieve the moving party of the burden to establish every element
of the causes of action necessary to sustain a judgment in his favor. (Consumer Cause,
Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)
A motion for summary judgment, or for summary adjudication, must be supported
by evidence establishing the moving party’s right to the relief sought. (Regents of Univ.
of Calif. v. Superior Ct. (1996) 41 Cal.App.4th 1040, 1044.) Such evidence usually
consists of declarations, admissions by the opposing party, evidence obtained through
discovery, and matters judicially noticed. (Code Civ. Proc. § 437c, subd. (b).)
Declarations must be based on the personal knowledge of the declarant, show
affirmatively that the declarant is competent to testify to the matters stated, and set forth
admissible evidence. (Code Civ. Proc. § 437c, subd. (d).)
Analysis. Defendants argue there is no triable issue of material fact to support
Plaintiff’s causes of action against Defendant Triple Star by a preponderance of the
evidence. Triple Star submits 17 undisputed material facts (UMF) in support of summary
5
judgment. UMFs 18 through 221 address the individual causes of action in support of
adjudication.1
Triple Star’s UMFs. Defendant NVA LLC owned the property throughout Maul
and Miller’s tenancy until September 2018, when Triple Star acquired the property.
(UMF 1.) Maul moved in during 2016, and he moved out in June 2020. (UMF 2.) In
2018, Miller moved in. (Ibid.) Stewart never resided at the property. (Ibid.) Maul testified
he made oral complaints regarding the condition of the property. (UMF 3.) Stewart
testified she did not make any complaints regarding the condition of the property. (Ibid.)
Both testified that Miller advised them that she made oral complaints regarding the
condition of the property. (Ibid.) Plaintiffs did not produce written complaints from either
Maul or Miller. (UMF 4.) Plaintiffs affirmed that the only documents in their possession,
custody and control are photographs taken by Miller and records from government
agencies related to complaints and citations regarding other units. (Ibid.)
Triple Star is in the possession, custody, and control of only three written
complaints made by Miller regarding the condition of the property. (UMF 5.) Soon after
Miller signed a lease agreement, on July 13, 2020, Triple Star inspected the property.
(UMF 6.) The inspection report noted that the following items needed repair: repainting
the living room, replacing the carpet, and replacing the Windows. (Ibid.) It was also
noted that Miller did not make any additional complaints. (Ibid.) Miller signed the
inspection report. (Ibid.) Miller made written complaints on July 13 and 17, 2020. (UMF
7.) Therein, Miller requested repairs to her front door, abatement of an insect
infestation, replacement of carbon monoxide detectors, repainting, installing new
1
Although not listed as an issue to be adjudicated, Defendants include a section in their points and authorities
arguing for the adjudication of the issue of punitive damages.
6
flooring, changing the vanity, replacing the curtains, re-glazing the vanity and kitchen
counter tops, installing new windows, changing a toilet seat, and repairing the bedroom
door, closet door, kitchen light, and leaks. Triple Star posted a notice on July 20, 2020
to enter on July 21, 2020. (Ibid.)
Miller also complained on September 30, 2020 about mold behind the toilet, a
leak in the shower, and a leak in the toilet. (UMF 8.) Repairs were made the same day,
including repairing the toilet tank, replacing the shower knob and shower temperature
regulator, cleaning mold behind the toilet. (Ibid.) Also on the same day, Miller signed a
document stating she was content with all repairs and that she had no pending repair
requests. (Ibid.)
Maul testified that he vacated voluntarily. (UMF 9.) Additionally, he received a
letter of recommendation from Triple Star to his prospective landlords. (Ibid.)
Additionally, Plaintiffs have no evidence that Miller paid a security deposit. (UMF 17.)
Miller’s lease with Triple Star and the ledger of her payments indicates that she did not
pay a security deposit. (Ibid.) Maul also has no evidence that he paid a security deposit,
despite requests that he produce all documents that support his cause of action for
Violation of Civil Code section 1950.5. (Ibid.)
Plaintiffs nor Triple Star are in the possession, custody, and control of a mold test
taken at the property during Maul’s or Miller’s tenancies. (UMF 10.) According to expert
industrial hygienist, Brian Daly, no expert could opine to a reasonable degree of
scientific certainty that Miller was exposed to levels of mold spores that would have
adversely affected her health. (UMF 13.) Additionally, Dr. Alan Szeftel opines to a
reasonable degree of scientific certainty that Miller did not die of exposure to mold, as
7
there is no clinical evidence in Miller’s medical records indicating that she had a fungal
infection because only two tests were conducted to determine whether Miller had a
fungal infection. (UMF 14.) One of these tests was negative while the other was a false
positive. (Ibid.) Rather, Miller died of multi-organ failure caused primarily by worsening
liver cirrhosis. (UMF 16.)
Triple Star’s Arguments. To begin with, Triple Star requests summary judgment,
or in the alternative adjudication, as to each cause of action. They begin their argument
by contending a material fact does not exist to support Maul’s recovery or Stewart’s
recovery under a wrongful death or a survivor theory. Next, they address the causes of
action for breach of contract, breach of quiet enjoyment, breach of warranty of
habitability, negligence, negligence per se, constructive eviction, and premises liability.
Finally, they address the causes of action for Violation of Business and Professions
Code section 17200, Tenant Harassment, and Violation of Civil Code sections 1950.5
and 1942.4.
Wrongful Death Theory. Triple Star argues that Stewart did not reside at the
property, and thus her causes of action depend on either a survival cause of action if
Triple Star is liable as to Miller or under a wrongful death cause of action theory. To
eliminate Stewarts’ wrongful death theory, Triple Star submits the declaration of Dr.
Alan Szeftel. In sum, Dr. Alan Szeftel is a medical doctor who specializes in pulmonary
conditions and allergies and opines to a reasonable degree of scientific certainty that
Miller’s death was not caused by exposure to mold at the property. (UMFs 11, 12.) In
addition, he states that the medical records indicate a false positive beta-D glucan test
8
that could detect a fungal infection. (UMF 12.) But, he contends this is a false positive
because it was caused by an antibiotic. (Ibid.)
However, there are evidentiary issues with the declaration of Dr. Szeftel. Dr.
Szeftel attests he reviewed Ashley Stewart’s Saint Bernardine Medical Center medical
records. (Szeftel Decl. ¶ 4.) And then opines that April Miller did not die from mold
exposure. (Szeftel Decl. ¶ 5.) The remainder of the declaration appears to discuss
Miller’s medical records; however, this does not resolve the issue. The expert here has
attested to reviewing the medical records of Plaintiff Ashley Stewart and not that of the
deceased, Mary Miller. Further, there is no evidence submitted that these medical
records were authenticated in any way.
In Garibay v. Hemmat (2008) 161 Cal.App.4th 735, the court held that an expert
medical opinion may be based on hospital and medical records, but those records must
be properly authenticated under Evidence Code section 1271 under the business
records exception to the hearsay rule. Evidence Code section 1271 states the business
records exception to the hearsay rule: Evidence of a writing made as a record of an act,
condition, or event is not made inadmissible by the hearsay rule when offered to prove
the act, condition, or event if: (a) the writing was made in the regular course of a
business; (b) the writing was made at or near the time of the act, condition, or event; (c)
the custodian or other qualified witness testifies to its identity and the mode of its
preparation; and (d) the sources of information and method and time of preparation
were such as to indicate its trustworthiness. (Id. at p. 742.) In Garibay, the court held
that without the hospital records and without testimony providing for authentication of
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such records, the medical expert opinion had no evidentiary basis and a grant of
summary judgment was inappropriate. (Id. at p. 743.)
Here, there is no foundation as to what Dr. Szeftel relied upon. There is no
evidence that he reviewed the medical records of Miller when he attests he reviewed
the records of Stewart. There is no evidence those records were properly authenticated;
therefore, there is no evidentiary basis for this medical expert opinion.
Triple Star also submits the declaration of Brian P. Daly, a certified industrial
hygienist. (See Daly Decl. ¶ 2.) The purpose of this declaration is to show there is no
evidence mold was in the apartment, and Miller could not have had adversely affected
health as a result. (See Daly Decl. 4.) Daly however, does not appear to be a medical
expert, nor does he appear to have reviewed any medical records, and yet appears to
opine that no expert could opine mold affected Miller’s health.
[T]he trial court acts as a gatekeeper to exclude expert opinion testimony that is
(1) based on matter of a type on which an expert may not reasonably rely, (2)
based on reasons unsupported by the material on which the expert relies, or 3)
speculative. Other provisions of law, including decisional law, may also provide
reasons for excluding expert opinion testimony.
(Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal. 4th 747,
771–772.) While Triple Star has proffered evidence that neither they nor Plaintiffs are in
possession of a mold test taken at the property during Maul and Miller’s tenancies, that
in and of itself does not prove there was no mold. Plaintiffs have photographs and their
own testimony as well as documented complaints by Miller as to the mold. (See UMFs
4, 8, 10.) The Daly declaration does not establish the absence of mold, it only claims to
establish that a mold test produces a data set necessary for an expert to opine as to its
effect on Miller’s health; however, Daly, again is not a medical expert. “[T]he expert
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opinion may not be based on assumptions of fact that are without evidentiary support or
based on factors that are speculative or conjectural, for then the opinion has no
evidentiary value and does not assist the trier of fact.” (Garibay, supra, at p. 743.) In
light of this, Triple Star has not met their burden to the extent Stewart’s causes of action
against them rely on a wrongful death theory.
Causes of Action: Breach of Contract, Covenant of Quiet Enjoyment, Warranty of
Habitability, Nuisance, Negligence, Negligence Per Se, Premises Liability, and
Constructive Eviction.2
The elements for a breach of contract are (a) existence of a contract, (b)
plaintiff’s performance or excuse for performance, (c) defendants’ breach, and (d)
resulting damages. (Wall Street Network Ltd. v. N.Y. Times Co. (2008) 164 Cal.App.4th
1171, 1176.) Plaintiff’s breach of contract cause of action is predicated on the breach of
the implied warranty of habitability. (See Compl. ¶ 62.) A warranty of habitability is
implied in every residential lease (i.e. constituting a breach of contract). (Erlach v. Sierra
Asset Servicing LLC (2014) 226 Cal.App.4th 1281, 1296-1297.) The elements of a
cause of action for breach of the implied warranty of habitability “are the existence of a
material defective condition affecting the premises' habitability, notice to the landlord of
the condition within a reasonable time after the tenant's discovery of the condition, the
landlord was given a reasonable time to correct the deficiency, and resulting damages.”
(Id. at p. 1297.) The alleged defective condition must “affect the tenant's apartment or
the common areas which he uses.” (Peviani v. Arbors at California Oaks Property
Owner, LLC (2021) 62 Cal.App.5th 874, 891.)
2
Defendants did not provide the legal elements as to each cause of action, nor did they discuss the elements
directly.
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A violation of a statutory housing standard that affects health and safety is a
strong indication of a materially defective condition. [Citation.] By statute, a
dwelling will be considered untenantable if (1) the “[b]uilding, grounds, and
appurtenances” are not “clean, sanitary, and free from all accumulations of
debris, filth, rubbish, garbage, rodents, and vermin” (Civ. Code, § 1941.1, subd.
(a)(6)); or (2) the dwelling substantially lacks “[a]n adequate number of
appropriate receptacles for garbage and rubbish, in clean condition and good
repair. (Civ. Code, § 1941.1, subd. (a)(7)).
(Ibid.)
Similarly, it has long been the rule that in the absence of language to the
contrary, every lease contains an implied covenant of quiet enjoyment. (Erlach, supra,
at p.1300.)
This covenant is breached upon actual or constructive eviction of the tenant.
[Citation.] Any interference by the landlord that deprives the tenant of the
beneficial enjoyment of the premises or renders the premises unfit for the
purposes for which they are let amounts to a constructive eviction if the tenant so
elects and vacates within a reasonable time.
(Id. at pp. 1299–1300.) As to nuisance:
First, the plaintiff must prove an interference with his use and enjoyment of its
property. Second, the invasion of the plaintiff's interest in the use and enjoyment
of the land must be substantial, i.e., it caused the plaintiff to suffer substantial
actual damage. Third, the interference with the protected interest must not only
be substantial, it must also be unreasonable, i.e., it must be of such a nature,
duration, or amount as to constitute unreasonable interference with the use and
enjoyment of the land.
(Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83
Cal.App.5th 1137, 1176.) “Substantial damage and unreasonableness are to be judged
by an objective standard.” (Ibid.) “With respect to the substantial damage element, the
degree of harm is to be measured by the effect the invasion would have on persons of
normal health and sensibilities living in the same community.” (Ibid.)
An action for negligence “consists of three elements: (1) a defendant's legal duty
to use due care; (2) a breach of that duty; and (3) the breach as the proximate or legal
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cause of plaintiff's resulting injury.” (George A. Hormel & Co. v. Maez (1979) 92
Cal.App.3d 963, 966.) Negligence per se is not a cause of action but creates an
evidentiary presumption that affects the standard of care in a negligence claim. (Millard
v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353, fn. 2.) For this presumption to
be available, an underlying negligence claim must be viable. (Id. at p. 1353.)
The cause of action for premises liability is similar to negligence such as the
party must show duty, breach, causation, and damages. (Castellon v. U.S. Bancorp
(2013) 220 Cal.App.4th 994, 998.) Regarding premises liability, the duty arising from
possession and control of property is in conformity with the standard of care that applies
in negligence cases. (Coyle v. Historic Mission Inn Corporation (2018) 24 Cal.App.5th
627, 634.) The elements for premises liability are: (a) the defendant was owner,
occupier or lessor of premises; (b) the defendant was negligent in the use,
maintenance, and/or management of the premises, and (c) negligence was the cause of
injury, damage, loss or harm to plaintiff. (Brooks v. Eugene Burger Management Corp.
(1989) 215 Cal.App.3d 1611, 1619.)
Triple Star does not address the causes of action individually, but contends that
these causes of action essentially fail because Plaintiffs lack evidence. For example,
they contend that in response to a demand for inspection, Plaintiffs produced 176
photographs of the unit, 676 pages of records from government agencies regarding
complaints/citations as to the condition of the property, and Miller’s medical records.
But, Triple Star argues the government agency records do not contain a citation or
complaint regarding the specific unit 70 at issue. (UMF 4.) Next, they contend that
because the photographs were taken by Miller, they are inadmissible. They further claim
13
that according to Mr. Daly, their expert, whether mold was present and whether the
mold present may have an adverse effect on health can only be determined if a mold
test were taken at the property. (UMFs 11-13.) No mold test was taken in Maul and
Miller’s unit during their tenancies. (UMF 10.) Thus, Plaintiffs have no evidence that
mold was present or that, if mold was present, it would have had an adverse effect on
their health.
Triple Star, however, claims the only evidence supporting Plaintiffs’ contention of
the substandard conditions is their own testimony, which they claim in light of the
documentary evidence is vague and insufficient to demonstrate a substantial
substandard condition existed. Further, they contend Maul testified he only made oral
complaints, and these, they contend, are too vague to satisfy the required elements as
to these causes of action. (See UMF 3.) As to Miller, Maul and Stewart testified they did
not recall her making an oral complaint, but she told them she did. (Ibid.) This, they
assert, is inadmissible hearsay.
Instead, Triple Star asserts that there are only three complaints by Miller in their
possession: July 13, 17, and September 30, 2020. Miller requested repairs to her front
door, abatement of an insect infestation, replacement of carbon monoxide detectors,
repainting, installing new flooring, changing the vanity, replacing the curtains, reglazing
the vanity and kitchen counter tops, installing new Windows, changing a toilet seat, and
repairing the bedroom door, closet door, kitchen light, and leaks. (See UMFs 6-8). But
Triple Star states it posted a notice to enter on July 20 to make the repairs on July 21,
2020. (Ibid.) Triple Star, however, has not shown evidence the repairs were made. Next,
Triple Star states, on September 30, 2020, Miller complained about mold behind the
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toilet and leaks, and repairs were made the same day. (UMF 8.) But Miller also signed a
document that she was content with all repairs, and had no pending requests. (Ibid.)
Triple Star does not meet their burden. Triple Star appears to argue Plaintiffs
simply lack evidence. But a defendant must support its motion with discovery
admissions or other admissible evidence showing that “plaintiff does not possess, and
cannot reasonably obtain, needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) And,
it is not enough for defendant to show merely that plaintiff lacks evidence. The
Defendant must also produce evidence showing plaintiff cannot reasonably obtain
evidence to support that claim. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891;
Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 808.)
Triple Star notes that both Maul and Stewart had been at the premises, and their
own testimony is available. Next, Triple Star contends the photographs are
inadmissible. However, it is contended Maul only does not recognize them. This does
not eliminate the possibility that Stewart may be able to lay the necessary foundation.
The fact that Miller is now deceased in and of itself does not demonstrate these images
are inadmissible.
Instead, Triple Star asks the Court to weigh this evidence and essentially find
that it is vague and insufficient to demonstrate a substantial substandard condition
existed. Triple Star also asks the Court to weigh this evidence and find that the images
are blurry and indiscernible. Essentially, they ask the Court to weigh the credibility of the
testimony of Maul and Stewart to find no triable issue of material fact. On a motion for
summary judgment, the court does not weigh evidence, but instead considers whether
the evidence creates a triable issue of fact. (Blue Mountain Enterprises, LLC. v. Owen
15
(2022) 74 Cal.App.5th 537, 549.) Further, the fact that mold may not have been present
or tested, or that Maul voluntarily moved out, does not eliminate other conditions that
could support the allegations as to these causes of action, which are alleged in the
Compliant. Nor does it eliminate constructive eviction. Therefore, as to these causes of
action, the Court DENIES the motion with respect to adjudication. For this reason, the
Court DENIES the motion for summary judgment as the moving Defendant has not met
their burden.
Causes of Action: Civil Code section 1942.4, Business and Professions Code
section 17200, Civil Code section 1950.5, and Tenant Harassment.
Civil Code section 1942.2 provides circumstances under which a landlord may
not demand rent. Relevant here is that this code section requires a public officer or
employee who is responsible for the enforcement of any housing law, after inspecting
the premises to notify the landlord or its agent in writing of his or her obligations to abate
the nuisance or repair the substandard conditions. (See Civ. Code § 1942.4, subd.
(a)(2)). Notably, Plaintiffs lack evidence that the relevant unit, unit 70, was ever
inspected by a public officer or employee. Their documentation, government agency
related to citations and complaints, regard other units only. (UMF 4.) Therefore, Triple
Star has eliminated an element as to this cause of action, and the Court GRANTS
adjudication as to the ninth cause of action.
The UCL is codified in California Business & Professionals Code section 17200
with prohibiting any unlawful, unfair, or fraudulent business practice. (Berryman v. Merit
Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1554.) Under the “unlawful”
prong, the unfair competition laws incorporate other laws and treats violations of those
16
laws as unlawful business practices independently actionable under the UCL.
(Berryman, supra, 152 Cal.App.4th at p. 1554.) “Unfair” conduct under the UCL has
been commonly defined as conduct that “offends an established public policy or ... is
immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.”
(Scripps Clinic v. Sup. Ct. (2003) 108 Cal.App.4th 917, 939.) Under the “unfair” prong, a
defendant’s conduct must violate a public policy “tethered to specific constitutional,
statutory, or regulatory provisions.” (Id. at 940.) Under the “fraudulent” prong, a plaintiff
must show that “members of the public are likely to be ‘deceived’” by the defendant’s
practices. (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 951.) A violation of this code
section requires that the plaintiff demonstrate that the defendant violated statutes in
furtherance of a business practice. (Bernardo v. Planned Parenthood Federation of
America (2004) 115 Cal.App.4th 322, 353-354.)
As the pleadings frame the issues, the Complaint specifically alleges the
underlying violations in support of the unlawful business practice are Civil Code 1940.3,
1941.1, 1942, Health and Safety Code section 17920.3. As noted above, Triple Star has
not shown that Health and Safety Code section 17920.3 was not violated. 3 They argue
essentially that Stewart and Maul have weak evidence, but do not meet their burden for
the purpose of summary judgment. In light of this, the Court DENIES summary
adjudication as to this cause of action.
Civil Code section 1950.5 provides requirements for the return of a security
deposit. Triple Star has established that neither Maul nor Miller provided a security
3
Health and Safety Code section 17920.3 details conditions by which a building will be deemed substandard, and it
includes infestations of vermin, visible mold growth, dampness, any nuisance, etc.
17
deposit. (UMF 17.) Therefore, the Court GRANTS summary adjudication as to the
twelfth cause of action.
Plaintiff’s cause of action for Tenant Harassment is predicated on Civil Code
sections 1954 and 1940.2, which detail the circumstances by which a landlord may
enter a dwelling and conduct landlords may not engage in for the purpose of influencing
a tenant to vacate a dwelling. Maul and Stewart testified that Triple Star never entered
or posted a notice to enter the unit. (UMF 3.) Triple Star’s records show they only
entered when addressing Miller’s complaints. (UMFs 3, 6-8.) A notice to enter was
posted 24 hours prior to noticed entry. (Ibid.) It appears therefore, that plaintiffs lack
evidence Triple Star entered the unit in violation of Civil Code section 1954. As to
section 1940.2, Maul testified he was never threatened by Triple Star and voluntarily
vacated. (UMF 9.) Therefore, the Court GRANTS summary adjudication as to this cause
of action with respect to plaintiff Maul; however, Triple Star does not meet its burden
here as to Stewart’s claim.
In their points and authorities, Triple Star asserts Stewart and Maul have vague
knowledge as to these incidents with respect to Miller and whether she was threatened
or whether conduct was directed at her to vacate. They cite to UMF 3, but that is not
what UMF 3 asserts. Next, they claim no admissible evidence exists because Miller is
deceased and her statements would be inadmissible hearsay. But, Triple Star has not
established that the only evidence Stewart possesses is inadmissible hearsay. The
allegation in the Complaint is that a security guard pretended to be an officer and
threatened Miller. (See Compl. ¶ 193.) While Triple Star has shown plaintiffs lack
documentation of this incident (See UMF 4), they have not shown Stewart did not
18
eyewitness the event, nor have they shown this evidence cannot be otherwise obtained.
Therefore, with respect to Stewart, the Court DENIES summary adjudication as to this
cause of action.
Punitive Damages. The entirety of Triple Star’s argument as to why the Court
should grant adjudication as to the claim for punitive damages is that there is no
evidence Maul or Miller complained of substantial substandard conditions, or that Triple
Star failed to make reasonable repairs. They broadly cite to UMFs 3-13. But Triple Star
has not shown this. Maul made oral complaints. (UMF 3.) Triple Star did not show it
made the repairs on July 21, 2020. (See UMF 7.) Courts have held that allegations
similar to those alleged by Plaintiffs are sufficient for purposes of pleading punitive
damage claims. (See Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920 [holding
that a claim for punitive damages was adequately pleaded when the complaint alleged
that “defendant had actual knowledge of the defective conditions in the premises
including leaking swage, deteriorated flooring, falling ceiling, leaking roof, broken
windows and other unsafe and dangerous conditions” and that defendant “acted with full
knowledge of the consequences thereof and the damage being caused to plaintiff, and
their conduct was willful, oppressive and malicious.”]; see also Smith v. David (1981)
120 Cal.App.3d 101, fn.3 [punitive damages available for intentional tortious breach of
the warranty of habitability].) The allegations Plaintiffs have alleged as to the warranty of
habitability, if proven, could support a claim for punitive damages. Triple Star has not
shown Plaintiffs cannot present such evidence. Therefore, with respect to the claim for
punitive damages, the Court DENIES the motion.
Conclusion
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The Court DENIES summary judgment. The Court DENIES summary
adjudication as to the first through seventh, eleventh, and thirteenth causes of action,
but GRANTS summary adjudication as to the ninth and twelfth causes of action. As to
the fourteenth cause of action, the Court GRANTS summary adjudication as to Plaintiff
Maul, but DENIES it as to Plaintiff Stewart. Finally, the Court DENIES summary
adjudication as to the issue of punitive damages.
Material Facts in Dispute: Whether Miller’s death was caused by mold exposure,
whether the condition of the unit was substandard, whether Triple Star was in breach of
the lease agreement, whether Plaintiffs were constructively evicted, and whether Triple
Star harassed Miller.
Evidence: Relevant portions of Plaintiff Jeremy Maul’s deposition; relevant
portions of Plaintiff Ashley Stewart’s deposition; the declaration of counsel, Kelly M.
Danker and attached Exhibits A through O, and the declarations of Dr. Alan Szeftel and
Brian P. Daly.
Counsel for Triple Star Company, LLC is ordered to provide notice.
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