Opinion
F074077
11-22-2017
ENRIQUE REYES et al., Plaintiffs and Appellants, v. MIGRAN KUTNERIAN et al., Defendants and Respondents.
Enrique Reyes, in pro per., and James A. Michel, for Plaintiff and Appellant Enrique Reyes. Guadalupe Reyes, in pro per., and James A. Michel, for Plaintiff and Appellant Guadalupe Reyes. Gregory L. Altounian and Michael Carrigan for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CECG00659)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Jr., Judge. Enrique Reyes, in pro per., and James A. Michel, for Plaintiff and Appellant Enrique Reyes. Guadalupe Reyes, in pro per., and James A. Michel, for Plaintiff and Appellant Guadalupe Reyes. Gregory L. Altounian and Michael Carrigan for Defendants and Respondents.
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Appellants, Enrique Reyes and Guadalupe Reyes, rented a portion of a parcel of land from respondents Kutnerian Enterprises and Migran Kutnerian (Kutnerian), upon which appellants parked their travel trailer. David Bernel, another tenant on Kutnerian's property, supplied appellants with electricity from his meter and water from his well. After David Bernel ceased providing electricity to appellants, they filed the underlying complaint. In a related action, Kutnerian sued appellants to evict them from the land.
The trial court sustained a demurrer without leave to amend to the causes of action for elder abuse and breach of the implied warranty of habitability. Thereafter, the court granted summary judgment to Kutnerian on the remaining causes of action on the ground that the collateral estoppel effect of the final judgment in the unlawful detainer action filed by Kutnerian against appellants barred those causes of action.
Appellants challenge the dismissal of their complaint arguing the trial court erred when it sustained the demurrer because shutting off electrical power is elder abuse and not having electrical power breaches the implied warranty of habitability. Appellants further assert the trial court erred in granting summary judgment because they did not receive a full and fair hearing in the unlawful detainer action and there exist triable issues of fact.
The trial court did not err as alleged. Therefore, the judgment will be affirmed.
BACKGROUND
In their first amended complaint, appellants set forth the facts they claim support the various causes of action against Kutnerian. According to appellants, they moved their travel trailer onto a portion of property owned by Kutnerian under an oral rental agreement. David Bernel and Joann Bernel were also tenants on the property and had an electrical meter. Appellants allege that, as a condition of their moving onto the property, they entered into an oral agreement with David Bernel and Kutnerian for power and water. Appellants state the parties agreed that appellants would receive power and water through the Bernels' electrical meter and well in exchange for paying the Bernels $20 per month.
In May 2013, approximately two years later, appellants and Kutnerian executed a written rental agreement. Appellants allege that, at that time, "both water and electrical connection were operational and working and were fixtures on the property."
On September 29, 2014, Enrique Reyes and Joann Bernel got into an argument about Joann Bernel picking pomegranates on the land leased by appellants. On October 9, 2014, David Bernel rejected the $20 electricity payment that Enrique Reyes attempted to make. Thereafter, on October 14, 2014, David Bernel unplugged the electrical connection to appellants' trailer "'without notice.'" This caused food in appellants' refrigerator to spoil and caused appellants to incur expenses for gasoline and batteries. Appellants allege Enrique Reyes notified Kutnerian of the situation but Kutnerian refused to intervene.
In November 2014, appellants filed a small claims action against the Bernels and received a January 20, 2015, trial date. According to appellants, the judge told them to join Kutnerian as a defendant and when Enrique Reyes informed Kutnerian of the judge's directive, Kutnerian served appellants with a 30-day notice of termination of tenancy.
Thereafter, Kutnerian filed an unlawful detainer action against appellants and, following a trial in April 2015, the trial court entered judgment for Kutnerian. On May 6, 2015, appellants were evicted from Kutnerian's property.
Based on these allegations, appellants stated causes of action against Kutnerian for elder abuse, utility cutoff in violation of Civil Code section 789.3, breach of the covenant of quiet enjoyment, negligence, nuisance, breach of the implied warranty of habitability, intentional infliction of emotional distress, and retaliatory eviction.
Kutnerian demurred to several causes of action alleged in the first amended complaint. The trial court sustained the demurrers without leave to amend to the causes of action for elder abuse and breach of the implied warranty of habitability. Regarding elder abuse, the trial court held that appellants were required to allege physical abuse and could not do so. The trial court concluded appellants could not state a cause of action for breach of the implied warranty of habitability because they leased only land, not a dwelling.
Kutnerian then moved for summary judgment on the remaining causes of action. Appellants based these causes of action on their claims that Kutnerian cut off and refused to restore electricity to appellants' travel trailer; Kutnerian failed to give appellants proper notice of the termination of their tenancy; and Kutnerian's eviction of appellants was retaliatory.
Kutnerian's summary judgment motion relied on the preclusive effect of the final judgment and findings in the unlawful detainer action filed by Kutnerian against appellants. In that action, the trial court ruled that Kutnerian had no obligation to provide electrical service to appellants and was not responsible for termination of electrical service to appellants. The court further concluded that Kutnerian gave appellants proper notice of termination of the tenancy and that appellants' eviction was not retaliatory.
The trial court granted Kutnerian's summary judgment motion on collateral estoppel grounds and dismissed appellants' complaint.
DISCUSSION
1. Standards of review.
a. Demurrer.
In reviewing a ruling on a demurrer, the appellate court's only task is to determine whether the complaint states a cause of action. (Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 824.) In doing so, the court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Further, the court must give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Ibid.) The complaint's allegations must be liberally construed with a view to attaining substantial justice among the parties. (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719.)
When the trial court sustains a demurrer without leave to amend, the appellate court must decide whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) If so, the trial court abused its discretion and the judgment will be reversed. (Ibid.) However, the burden is on the appellant to show the manner in which the complaint can be amended and how the amendment will cure the defect. (McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 161.)
b. Summary judgment.
A party moving for summary judgment bears the burden of persuading the trial court that there is no triable issue of material fact and that he or she is entitled to judgment as a matter of law. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525 (Brown).) Once the moving party meets this initial burden, the burden shifts to the opposing party to establish, through competent and admissible evidence, that a triable issue of material fact still remains. If the moving party establishes the right to the entry of judgment as a matter of law, summary judgment will be granted. (Ibid.)
On appeal, the reviewing court must assume the role of the trial court and reassess the merits of the motion. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) The appellate court applies the same legal standard as the trial court to determine whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. The court must determine whether the moving party's showing satisfies his or her burden of proof and justifies a judgment in the moving party's favor. (Brown, supra, 171 Cal.App.4th at p. 526.) In doing so, the appellate court must view the evidence and the reasonable inferences therefrom in the light most favorable to the party opposing the summary judgment motion. (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1522.) 2. The trial court properly sustained the demurrer to two causes of action without leave to amend.
a. The elder abuse cause of action.
Appellants allege that when Kutnerian "indirectly" shut off the electricity to their travel trailer, he committed elder abuse under the Elder Abuse Act. (Welf. & Inst. Code, § 15600 et seq.) The Elder Abuse Act defines such abuse as "[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering." (Welf. & Inst. Code, § 15610.07.) Appellants contend shutting off the electricity constitutes "other treatment with resulting physical harm or pain or mental suffering" and therefore they are entitled to damages.
The Elder Abuse Act "'represents the Legislature's response to the problem of unreported elder abuse which came to its attention in the early 1980's.'" (Santos v. Kisco Senior Living, LLC (2016) 1 Cal.App.5th 862, 870.) Accordingly, the Elder Abuse Act's focus has always been to encourage reporting of abuse or neglect. (Ibid.)
However, the Legislature thereafter amended the Elder Abuse Act to add Article 8.5, labeled "Civil Actions for Abuse of Elderly or Dependent Adults." (Welf. & Inst. Code, § 15657 et seq.) These amendments shifted the focus in protecting vulnerable and dependent adults from reporting abuse and using law enforcement to combat it "'to private, civil enforcement of laws against elder abuse and neglect.'" (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 784.)
Therefore, the Elder Abuse Act provides for an independent civil cause of action. (Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th 657, 666.) Nevertheless, the elements of an elder abuse cause of action are statutory. Moreover, Welfare and Institutions Code section 15657 governs such a cause of action. (Ibid.)
Welfare and Institutions Code section 15657 states that, in addition to all other remedies provided by law, a plaintiff is entitled to enhanced remedies, including reasonable attorney fees, "[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse."
Therefore, to state an elder abuse cause of action, at a minimum the plaintiff must allege either physical abuse or neglect. "Physical abuse" includes only physical assaults or other conduct involving actual physical contact with the elder's body or "prolonged or continual deprivation of food or water." (Welf. & Inst. Code, § 15610.63.) "Neglect" only applies to acts by the elder or those persons having the care or custody of an elder. (Welf. & Inst. Code, § 15610.57.)
Appellant's first amended complaint does not allege either physical abuse or neglect as defined in the Elder Abuse Act. Further, appellants have not shown how they could amend the complaint to cure this defect. Accordingly, the trial court properly sustained the demurrer to the elder abuse cause of action without leave to amend.
Appellants additionally argue that the facts alleged in the first amended complaint support a claim for financial abuse and the trial court erred by not recognizing that claim. According to appellants, Kutnerian's acceptance of two $20 electricity payments in October and November 2014 constituted elder financial abuse.
"Financial abuse" of an elder occurs when the abusing person or entity either "[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder" or assists in such behavior "for a wrongful use or with intent to defraud" or by "undue influence." (Welf. & Inst. Code, § 15610.30.) However, Kutnerian's inadvertent acceptance of $40 from appellants does not qualify as taking money for a wrongful use or with intent to defraud. Moreover, Enrique Reyes testified during the unlawful detainer trial that Kutnerian returned the $40 as a rent credit. Thus, no error occurred.
b. The implied warranty of habitability cause of action.
As noted above, appellants leased land from Kutnerian upon which to park their travel trailer. The first amended complaint alleges that Kutnerian's failure to restore electricity to the leased land was a breach of the implied warranty of habitability.
However, the implied warranty of habitability imposes the obligation to maintain leased dwellings in a habitable condition throughout the term of the lease. (Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1204.) The statutory requirement of habitability also applies only to "a building intended for the occupation of human beings." (Civ. Code, § 1941.) Thus, the implied warranty of habitability does not apply to a lease of land. Accordingly, the trial court correctly sustained the demurrer to appellants' cause of action for breach of the implied warranty of habitability without leave to amend.
Appellants' reliance on Rich v. Schwab (1998) 63 Cal.App.4th 803 is misplaced. That case concerned lessees of mobile home park spaces who were the victims of retaliatory conduct by the lessor. The court held that, in the case of retaliatory rent increases, the lessees had a right of action against the lessor under Civil Code section 1942.5, subdivisions (c) and (f). (Rich v. Schwab, supra, 63 Cal.App.4th at p. 812.) However, Civil Code section 1942.5 is limited to claims based on the lessor's retaliation against the lessee. Thus, it does not apply to appellants' claim for breach of the implied warranty of habitability. 3. The trial court properly granted summary judgment on the remaining causes of action.
Kutnerian moved for summary judgment based on Enrique Reyes's judicial admissions and the preclusive effect of the final judgment and findings in the unlawful detainer action brought against appellants by Kutnerian. (Kutnerian Enterprises v. Reyes (App. Div. Super. Ct. Fresno County, 2015, No. 2518).) The trial court granted Kutnerian's motion finding that res judicata and collateral estoppel barred the remaining causes of action.
The res judicata doctrine has two aspects, claim preclusion and issue preclusion. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 (DKN Holdings).) Generally, courts use the term "res judicata" to describe claim preclusion and reserve the term "collateral estoppel" for issue preclusion. (Ibid.) However, courts use these terms inconsistently. (Id. at pp. 823-824.)
"Claim preclusion 'prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.' [Citation.] Claim preclusion arises if a second suit involves (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit." (DKN Holdings, supra, 61 Cal.4th at p. 824.) Claim preclusion bars relitigation of the claim altogether. It also bars claims that were not, but should have been, advanced in the previous suit. (Ibid.)
"Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. [Citation.] Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action." (DKN Holdings, supra, 61 Cal.4th at p. 824.)
The res judicata doctrine also bars litigation on claims in one action that either were, or should have been, raised as defenses in another action in which the judgment is final. (Zimmerman v. Stotter (1984) 160 Cal.App.3d 1067, 1074-1075.) In unlawful detainer actions, such defenses include claims that the lessor did not provide proper notice of termination (Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1117); that the eviction was retaliatory (Schweiger v. Superior Court (1970) 3 Cal.3d 507, 517); and that the lessor breached the implied warranty of habitability (Green v. Superior Court (1974) 10 Cal.3d 616, 631-632). In fact, a tenant may assert any defense in an unlawful detainer proceeding. (Id. at p. 632.)
Further, where two actions involving the same issue are pending at the same time, the first final judgment becomes conclusive for purposes of claim preclusion or issue preclusion, even though that action was filed later in time. (Busick v. Workmen's Comp. Appeals Bd. (1972) 7 Cal.3d 967, 977.) Thus, here, the issues litigated and decided in the unlawful detainer action are binding on appellants' action against Kutnerian for damages, even though the unlawful detainer action was the second lawsuit filed.
Appellants base their theories of liability on three alleged wrongs committed by Kutnerian. According to appellants, Kutnerian wrongly cut off and refused to restore the electricity to their trailer, failed to give appellants proper notice of termination of the tenancy, and evicted appellants in retaliation for appellants' small claims action.
Appellants assert the trial court erred in granting summary judgment because disputed factual issues related to the alleged wrongs still exist. Appellants argue it still must be determined whether Kutnerian was responsible for the electricity cut off; whether Kutnerian was obligated to provide or restore electricity to appellants; and whether Kutnerian's eviction of appellants was retaliatory.
However, appellants raised these alleged wrongs as defenses in the unlawful detainer action and the issues were decided against them. The trial court in the unlawful detainer action ruled that Kutnerian gave proper notice of termination of the tenancy to appellants. The court further found that Kutnerian was not the one who cut off the electricity and, under the lease, Kutnerian was not obligated to provide electricity to appellants. Rather, appellants were responsible for providing for their own water and electricity. Finally, the court ruled that the eviction was not retaliatory. The appellate department of the superior court affirmed this decision on appeal.
Therefore, the parties litigated, and the trial court decided, the issues supporting appellants' theories of liability. Thus, appellants cannot relitigate those issues. Rather, the unlawful detainer judgment conclusively resolved those issues against appellants. Accordingly, the trial court properly granted summary judgment based on issue preclusion.
Appellants further contend the unlawful detainer action should not affect the underlying case because they did not receive a full and fair hearing before the court ruled in the unlawful detainer proceeding. According to appellants, they were forced to trial before their demurrer was ruled on and before they answered the complaint. Again, this issue has already been decided against appellants. The appellate division of the superior court rejected this argument and affirmed the unlawful detainer judgment on appeal. Accordingly, this claim is barred. (Vella v. Hudgins (1977) 20 Cal.3d 251, 256-257.) 4. The trial court properly denied appellants' request for judicial notice.
In the trial court, appellants requested the court to take judicial notice of certain testimony and exhibits from the unlawful detainer trial to establish the truth of the factual assertions. Appellants also requested the court take judicial notice of their first amended complaint and the Bernels' answer to the complaint. The trial court denied appellants' request. Appellants have made the same request to this court as well.
Kutnerian also filed a request for judicial notice in the trial court. Kutnerian requested the trial court to take judicial notice of the truth of orders, findings and judgments in the unlawful detainer action. This request included the transcript of the unlawful detainer trial. The trial court granted Kutnerian's request.
A "fact" that is judicially noticed is, in effect, treated as true for purposes of proof. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564 (Sosinsky).) "'Under the doctrine of judicial notice, certain matters are assumed to be indisputably true, and the introduction of evidence to prove them will not be required. Judicial notice is thus a substitute for formal proof.'" (Ibid.)
While a court may take judicial notice of the existence of any document in a court file, it cannot judicially notice the truth of facts asserted in the document. (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 121.) For example, courts cannot take judicial notice of the truth of statements in transcripts or declarations even though they are part of the trial court record. (Sosinsky, supra, 6 Cal.App.4th at p. 1567.) Thus, the trial court properly denied appellants' request that the trial court judicially notice testimony and exhibits from the unlawful detainer action to establish the truth of the facts asserted to create triable issues of fact.
Appellants object to the trial court's having granted Kutnerian's judicial notice request. Appellants note that Kutnerian also included the same transcripts from the unlawful detainer trial. Appellants argue that the trial court abused its discretion in refusing to accept the same documents from appellants.
First, once the transcripts were part of the court file, there was no need to duplicate them.
Second, while appellants requested the trial court take judicial notice of the truth of excerpts of testimony and exhibits, Kutnerian requested the court to take judicial notice of orders, findings and judgments in the unlawful detainer action to establish the applicability of res judicata.
While, in general, factual findings in a judgment are not the proper subject of judicial notice, there is an exception when the court is considering the res judicata doctrine. "Whether a factual finding is true is a different question than whether the truth of that factual finding may or may not be subsequently litigated a second time. The doctrines of res judicata and collateral estoppel will, when they apply, serve to bar relitigation of a factual dispute even in those instances where the factual dispute was erroneously decided in favor of a party who did not testify truthfully." (Sosinsky, supra, 6 Cal.App.4th at p. 1569.) In other words, even though a factual finding in an earlier judicial decision may not be judicially noticed to establish the truth of that fact, the finding itself may be a proper subject of judicial notice if it has a claim preclusion or issue preclusion effect in a later action. (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 148.) Thus, the trial court properly granted Kutnerian's judicial notice request.
Appellants' judicial notice request in this court again improperly seeks judicial notice of the truth of facts asserted in the unlawful detainer action. Appellants further seek judicial notice of documents that are already part of the record on appeal or are irrelevant. Accordingly, appellants' request for judicial notice is denied.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
GOMES, J. /s/_________
SMITH, J.