Sky v. Select Real Estate Services CA2/8

Filed 1/31/23 Sky v. Select Real Estate Services CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
LUCINDA SKY, B316717
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCV46957)
v.
SELECT REAL ESTATE
SERVICES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Richard L. Fruin, Jr., Judge. Affirmed in part;
reversed in part and remanded.
Lucinda Sky, in pro. per., for Plaintiff and Appellant.
Clyde & Co. US, Douglas J. Collodel; Carlson Law Group
and Warren K. Miller for Defendants and Respondents Select
Real Estate Services, Inc., and Armen Aroyan.
Koletsky, Mancini, Feldman & Morrow, Roy A. Koletsky
and Kristyn J. Mintesnot for Defendant and Respondent Armen
Arutyunyan.
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This dispute arises from a residential tenancy. Plaintiff
and appellant Lucinda Sky is the tenant who filed suit in propria
persona alleging she suffered damages from being exposed to
mold and other toxins migrating from a common area into her
condominium. Plaintiff named her landlord, defendant and
respondent Armen Arutyunyan, and the real estate brokers
involved in showing her the unit, defendants and respondents
Select Real Estate Services, Inc., and Armen Aroyan. The trial
court sustained all three defendants’ demurrers to the second
amended complaint and entered judgments of dismissal.
We affirm the judgment of dismissal entered in favor of the
broker defendants. We reverse the judgment of dismissal as to
the landlord, concluding plaintiff’s operative pleading states a
cause of action for breach of the implied warranty of habitability,
and remand for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
After demurrers were sustained to plaintiff’s original
complaint and first amended complaint, plaintiff filed her
operative second amended complaint in July 2021. The following
material facts are summarized from that pleading. We do not
summarize the many additional allegations that fail to support
any cause of action that was pled.
Defendant Armen Arutyunyan and plaintiff entered into a
residential lease for a condominium in a complex located on
Kenneth Road in Burbank. The initial lease term was for one
year beginning in August 2019, with monthly rent in the amount
of $3,650, and with plaintiff having the option to continue on a
month-to-month basis at the conclusion of the year.
Defendants Select Real Estate Services, Inc., and Armen
Aroyan were involved as the brokers for the unit and showed the
unit to plaintiff.
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Sometime after plaintiff and her child moved into the unit,
plaintiff developed painful rashes and became increasingly ill as
time went on, experiencing headaches, sinusitis, vertigo, blurred
vision, loss of hair, and hallucinations. Plaintiff heard voices on
many occasions telling her to do various things, including kill
herself. There are no allegations that plaintiff’s child experienced
any health problems.
In September 2020, plaintiff was walking her dog and ran
into Anushka Moto, the manager of the complex. Plaintiff
complained to Ms. Moto about some maintenance issues,
including dead plants and peeling paint at the front of the
building. Ms. Moto blamed the former homeowner’s association,
and told plaintiff they had not repaired an old common area
entertainment room “located under the cracked jacuzzi area.”
Plaintiff asked to see the room.
Plaintiff followed Ms. Moto downstairs to a locked door
near one of the garages. Ms. Moto unlocked the door and allowed
plaintiff to look inside what was described as an old common area
entertainment room that was no longer in use. “Everything was
covered in black mold and [a] white sandlike material.” The room
smelled “toxic,” causing plaintiff to immediately run out and
“vomit.”
Plaintiff had not been aware of the existence of this room.
It was locked, “hidden from view” and was not disclosed during
the walkthrough or in the written lease.
The window in plaintiff’s bedroom that she normally kept
open was located no more than “10 feet” from the “toxic room.”
Plaintiff moved her belongings to the other bedroom in her unit
and “sealed” off her former bedroom by putting blankets around
the door.
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Plaintiff contacted a mold inspection company. An
inspector came out and viewed plaintiff’s unit, the outside areas
of the complex and the abandoned entertainment room. The
inspector gave plaintiff a report stating there was a serious mold
problem in the old entertainment room. He recommended
various cleaning procedures for her unit and recommended
plaintiff get a blood test for mold allergies. Plaintiff had her
blood tested and it showed she was positive for various mold
allergies.
In October 2020, plaintiff sent an e-mail to defendant
Aroyan about her discovery of the toxic room, along with a copy of
the mold inspector’s report and the results from her blood test.
Aroyan responded by saying her e-mail had been forwarded to
the landlord, defendant Arutyunyan. Arutyunyan responded by
telling plaintiff to move out or be evicted and offering her $5,000
in moving expenses.
After sealing off her former bedroom with blankets and
treating herself with holistic medicine, plaintiff gradually started
to feel better and all of her symptoms “disappear[ed].” Plaintiff
filed this action seeking injunctive relief and damages, seeking
compensation for her physical and emotional suffering, loss of
wages, and return of rent, among other things.
All three defendants demurred to the second amended
complaint and filed motions to strike. The court sustained the
demurrers in their entirety. The court denied leave to amend,
explaining that despite three opportunities to state a claim,
plaintiff had been unable to do so and had not argued any
additional facts that could be pled to cure the legal defects in her
pleading. The court placed the motions to strike off calendar as
moot.
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The court entered judgments of dismissal in favor of all
three defendants on December 3, 2021.
Plaintiff prematurely filed an appeal from the orders
sustaining the demurrers, instead of from the judgments of
dismissal entered thereafter. We treat plaintiff’s premature
notice of appeal as timely. (Heshejin v. Rostami (2020)
54 Cal.App.5th 984, 991; see also Cal. Rules of Court,
rule 8.104(d)(2) [“The reviewing court may treat a notice of
appeal filed after the superior court has announced its intended
ruling, but before it has rendered judgment, as filed immediately
after entry of judgment.”].)
DISCUSSION
1. Standard of Review
Where, as here, the lower court has entered a judgment of
dismissal after sustaining a demurrer without leave to amend,
our review is de novo. (Centinela Freeman Emergency Medical
Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994,
1010 (Centinela); accord, Erlach v. Sierra Asset Servicing, LLC
(2014) 226 Cal.App.4th 1281, 1291 (Erlach).) For the limited
purpose of reviewing the propriety of the trial court’s ruling, we
“ ‘ “ ‘treat the demurrer as admitting all material facts properly
pleaded, but not contentions, deductions or conclusions of fact or
law. [Citation.] We also consider matters which may be
judicially noticed.’ ” ’ ” (Centinela, at p. 1010.) In determining
whether the operative complaint states a cause(s) of action,
“ ‘ “we give the complaint a reasonable interpretation, reading it
as a whole and its parts in their context.” ’ ” (Ibid.) And, when
the demurrer has been sustained without leave to amend, “ ‘ “we
decide whether there is a reasonable possibility that the defect
can be cured by amendment . . . .” ’ [Citation.] ‘ “The burden of
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proving such reasonable possibility is squarely on the plaintiff.” ’ ”
(Ibid., italics added.)
The purpose of a demurrer is to test the legal sufficiency of
the plaintiff’s complaint in stating a cause of action. Like the
trial court, we are not concerned at the pleading stage with
evidentiary matters or the “plaintiff’s ability to prove the
allegations.” (Erlach, supra, 226 Cal.App.4th at p. 1291.)
2. Plaintiff’s Burden on Appeal
Plaintiff, as the appellant, is required to affirmatively
demonstrate the trial court committed prejudicial error in
sustaining defendants’ demurrers. As our Supreme Court has
explained, “ ‘[a] judgment or order of the lower court is presumed
correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error
must be affirmatively shown. This is not only a general principle
of appellate practice but an ingredient of the constitutional
doctrine of reversible error.’ ” (Denham v. Superior Court of Los
Angeles County (1970) 2 Cal.3d 557, 564; see also Cal. Const.,
art. VI, § 13 [“No judgment shall be set aside, or new trial
granted, in any cause . . . for any error as to any matter of
procedure, unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the
error complained of has resulted in a miscarriage of justice”].)
Moreover, unless otherwise shown, “it is presumed that the court
followed the law.” (Wilson v. Sunshine Meat & Liquor Co. (1983)
34 Cal.3d 554, 563.)
In demonstrating error, it is the appellant’s duty to present
an adequate record that allows for meaningful review. (Ballard
v. Uribe (1986) 41 Cal.3d 564, 574–575; accord, Hotels Nevada,
LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348
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[appellant’s failure to provide adequate record “ ‘requires that the
issue be resolved against appellant’ ”].)
Plaintiff did not present an adequate record. She
designated only the trial court’s orders on the demurrers to be
included in the clerk’s transcript. Plaintiff later submitted,
without filing a motion asking for leave to augment the record, an
unpaginated bound volume of 18 documents, including the
operative second amended complaint. We exercised our
discretion to allow the volume to be filed and made a part of the
record. We also granted Select Real Estate Services and Armen
Aroyan’s motion to augment the record to include the parties’
trial court briefs.
Plaintiff failed to comply with mandatory court rules
regarding briefing. Plaintiff’s briefs contain no citations to the
record, nor relevant argument with citation to legal authority.
(Cal. Rules of Court, rule 8.204(a)(1)(C) [briefs must support “any
reference to a matter in the record by a citation to the volume
and page number of the record where the matter appears”];
rule 8.204(a)(1)(B) [briefs “must” support each contention of error
with argument and “citation of authority” if possible].) A
reviewing court may disregard any or portion of a brief that fails
to comply with these requirements. (See, e.g., Roman v. BRE
Properties, Inc. (2015) 237 Cal.App.4th 1040, 1053 & Kim v.
Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
The fact plaintiff is representing herself on appeal does not
excuse her from following these rules. (Nwosu v. Uba (2004)
122 Cal.App.4th 1229, 1246–1247.) It is well established that a
litigant may choose to act as their own attorney, but in doing so,
they are “held to the same restrictive procedural rules as an
attorney.” (Bistawros v. Greenberg (1987) 189 Cal.App.3d 189,
193; accord, Nwosu at p. 1247.)
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These are not mere technicalities or minor procedural
errors as plaintiff contends. As a reviewing court, we are “ ‘not
required to search the record to determine whether or not [it]
supports [plaintiff’s] claim of error.’ ” (Byars v. SCME Mortgage
Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140; accord, Young v.
Fish & Game Com. (2018) 24 Cal.App.5th 1178, 1190–1191.)
3. Breach of the Implied Warranty of Habitability
Notwithstanding the errors discussed above, we have
reviewed plaintiff’s operative second amended complaint to
determine whether it states any viable legal theory against
defendants. Our court granted permission for plaintiff to
augment the record, and though plaintiff did not follow the rules
for augmenting the record, it was not difficult for us to find the
second amended complaint.
The second amended complaint accuses not only
defendants, but also the trial court staff and the trial judge, of
wrongdoing which she suspects is due to bribery. On appeal,
plaintiff tells us the Court of Appeal staff also mistreated her, but
she does not tell us clearly what causes of action she alleged, the
reasons the court dismissed them, and the reasons why she
stated valid causes of action. However, her claim is loud and
clear that her condominium was uninhabitable and she sustained
severe personal and mental injuries because her bedroom window
was only about 10 feet away from the former entertainment room
that contained asbestos and mold which entered her unit through
her window and sickened her. She says the landlord and leasing
agent had a duty to discover and make the area safe.
Under the first cause of action labeled “personal injury,”
plaintiff incorporates paragraphs 1 through 24. Personal injury
is not a legal cause of action but a type of harm or damage. But
the title of a cause of action is not controlling. (Malott v.
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Summerland Sanitary Dist. (2020) 55 Cal.App.5th 1102, 1110.)
Looking at the substance of the allegations in paragraphs 1
through 24 and giving them a reasonable interpretation
(Centinela, supra, 1 Cal.5th at p. 1010), we conclude plaintiff
adequately alleged a cause of action for breach of the implied
warranty of habitability against her landlord, defendant
Arutyunyan. The demurrers were otherwise properly sustained
without leave to amend.
The implied warranty of habitability may be stated as a
defense to an unlawful detainer action, but it may also be
asserted affirmatively by a residential tenant against his or her
landlord in a lawsuit seeking damages for its breach. (Erlach,
supra, 226 Cal.App.4th at p. 1297.) “The elements of such an
affirmative claim 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.”
(Ibid.)
Plaintiff alleged a residential lease with defendant
Arutyunyan, the owner of the property, a significant mold
problem in a common area of the property that impacted
plaintiff’s nearby unit and caused plaintiff to suffer from a mold
allergy, notice to Arutyunyan about the situation, and damages.
The allegations are sufficient for the pleading stage.
While the claim is adequate as against the landlord, it does
not lie against the brokers, defendants Select Real Estate
Services and Armen Aroyan. (See, e.g., Stoiber v. Honeychuck
(1980) 101 Cal.App.3d 903, 929.)
We were unable to glean any other viable legal theory from
plaintiff’s largely rambling and sometimes incoherent allegations.
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As we already explained above, plaintiff did not provide any legal
argument or citation to applicable authority supporting the
existence of any additional theories. Plaintiff also did not
identify any additional facts that could be pled to cure any
defects. We therefore find no abuse of discretion by the court in
denying plaintiff another opportunity to amend her pleading. We
affirm the judgment of dismissal in favor of Select Real Estate
Services and Armen Aroyan. We reverse the entry of dismissal in
favor of Armen Arutyunyan and remand to the superior court for
further proceedings consistent with this opinion.
DISPOSITION
The judgment of dismissal in favor of defendants and
respondents Select Real Estate Services and Armen Aroyan is
affirmed. Select Real Estate Services and Armen Aroyan shall
recover costs of appeal.
The judgment of dismissal in favor of defendant and
respondent Armen Arutyunyan is reversed and the case is
remanded to the superior court for further proceedings. The
superior court is ordered to vacate its order sustaining
Arutyunyan’s demurrer to the second amended complaint and
enter a new order overruling the demurrer to the cause of action
for breach of the implied warranty of habitability against
Arutyunyan and sustaining without leave to amend the balance
of defendant’s demurrer. Plaintiff and Armen Arutyunyan shall
bear their own respective costs of appeal.
GRIMES, J.
WE CONCUR:
STRATTON, P. J. WILEY, J.
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