Filed 9/24/20 Triplett v. Decron Properties Corp. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
CRYSTAL TRIPLETT, B295026
Plaintiff, Cross-defendant, and (Los Angeles County
Appellant, Super. Ct. No. BC664786)
v.
DECRON PROPERTIES CORP. et al.,
Defendants, Cross-complainants,
and Respondents.
CRYSTAL TRIPLETT, B299146
Cross-defendant and Appellant, (Los Angeles County
Super. Ct. No. BC664786)
v.
DECRON PROPERTIES CORP. et al.,
Cross-complainants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Gregory Wilson Alarcon, Judge. Affirmed.
Crystal Triplett, in pro. per., for Plaintiff, Cross-defendant,
and Appellant (B295026) and Cross-defendant and Appellant
(B299146).
No appearance for Defendants, Cross-complainants, and
Respondents (B295026) or Cross-complainants and Respondents
(B299146).
____________________________
This consolidated appeal involves a longstanding landlord-
tenant dispute. The tenant, Crystal Triplett, who is appearing in
propria persona, sued for harm she allegedly suffered because of
mold infestation in her rented apartment. The defendant
landlord, NK Feliz Enterprises LP, and the defendant
management company, Decron Properties Corp. (collectively
landlord), cross-complained seeking payment of 10-months’ rent
and penalties available under the parties’ lease. Landlord also
sought costs and attorney fees under a contractual attorney fee
provision in the lease. The trial court granted summary
judgment in favor of landlord on the tenant’s complaint and the
landlord’s cross-complaint. The trial court also awarded landlord
$1,586 in attorney fees, an amount significantly lower than the
fees landlord sought.
On appeal, tenant’s primary challenges are to the
trial court’s application of a two-year statute of limitations to bar
all causes of action in her lawsuit. Even if tenant could
demonstrate the trial court erred in applying a two-year statute
of limitations to all her causes of action, tenant does not
demonstrate we should reverse the judgment. Tenant does not
2
address the alternative grounds for summarily adjudicating each
of the nine causes of action in the operative complaint.1 The
“failure to address summary adjudication of a claim on appeal
constitutes abandonment of that claim.” (Wall Street Network,
Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1177.)
With respect to the cross-complaint, tenant contends the
operative cross-claim is barred by the doctrine of res judicata.
Tenant relies on a stipulation and judgment entered by another
trial court in an unlawful detainer lawsuit. The stipulation,
however, expressly permits landlord to sue for unpaid rent if
tenant sued landlord on claims “result[ing] from this
landlord/tenant relationship,” as she did. Tenant also argues
that the amount of rent she owed was disputed, but her
argument cannot be reconciled with her separate statement of
undisputed facts in which she identified no evidence disputing the
amount of rent or penalties landlord was claiming.
We also conclude the record does not support tenant’s
argument that the trial court was biased against her.
Notwithstanding tenant’s argument to the contrary, we also
conclude that landlord’s memorandum of costs and motion for
attorney fees were timely. It appears that tenant’s argument is
based on a mischaracterization of an order granting summary
judgment as the judgment itself.
We affirm the judgment, which includes the costs and
attorney fees.
1 Triplett asserted claims for breach of habitability,
trespass, nuisance, negligence, intentional infliction of emotional
distress, intentional misrepresentation, concealment, and false
promise.
3
BACKGROUND
At the summary judgment stage, the party opposing
summary judgment must cite to evidence; he or she cannot rely
simply on the allegations in the pleadings. (Lowery v. Kindred
Healthcare Operating, Inc. (2020) 49 Cal.App.5th 119, 123;
Kurokawa v. Blum (1988) 199 Cal.App.3d 976, 988.) In her
separate statement in opposition to summary judgment, tenant
relied almost exclusively on the parties’ pleadings stating
repeatedly: “Not a material fact for the Defendants. No
affirmative defense raised here or in Defendants[’] Answer to
Plaintiff’s FAC[;] simply conjecture and/or contains a negative
pregnant.” Based on the parties’ separate statements of
undisputed facts, the following facts are either (1) undisputed or
(2) ineffectively disputed because even though Triplett purports
to dispute them, she cites to no contrary evidence.
Triplett and NK Feliz Enterprises LP entered a lease
effective July 1, 2011. The leased property was owned by NK
Feliz Enterprises LP and managed by Decron Properties Corp.
(Decron). Triplett lived in the rented apartment at Los Feliz
Village Residential Property from July 1, 2011 through
January 8, 2017. The parties’ lease required Triplett to pay rent
on the first of each month. The lease also required Triplett pay
penalties for late payment of rent. Beginning in July 2015,
Triplett owed $2,070.42 monthly for rent. The lease contains an
attorney fee provision entitling the prevailing party to attorney
fees for any action arising out of the lease.
In February 2014, Triplett complained that she was unable
to have full use of her apartment because of a leak in the
building. By letter dated February 10, 2014, Triplett complained
4
about mold in her lower kitchen cabinet. Triplett claimed that
landlord failed to remove the mold.
On March 4, 2014, the parties entered a settlement
agreement and release in which Triplett agreed to release all
claims related to the February leak in exchange for landlord
excusing one month of rent. The settlement agreement provided:
“Whereas, a slab leak occurred in the Building on February 2nd,
2014, Tenant claims that she was not able to have full use of the
Premises due to multiple vendors working to remedy the leak and
the condition of the downstairs area of the Building caused by the
water leak. Tenant also stated that the fumes/odors from the
moisture intrusion treatments, plumbing work, drywall and paint
repairs made the downstairs area of the Building unusable
during the duration of the work.” (Capitalization omitted.) As
part of the agreement, Triplett agreed to release all claims
“related to the slab leak itself and all work resulting from said
slab leak . . . .”
On April 1, 2016, Triplett stopped paying rent and never
paid rent again. Triplett owed $20,704.20 for unpaid rent and
$1,242.25 for late charges when she vacated the unit on
January 8, 2017.
On July 12, 2016, the California Department of Public
Health (Health Department) investigated a complaint Triplett
made and found what the inspector suspected was mold in
Triplett’s apartment. The inspector “[o]bserved water damage
and black spots on [the] wall inside [a] kitchen cabinet.” On
July 15, 2016, landlord retained a consulting company to
determine whether there was mold in Triplett’s unit. On
July 20, 2016, landlord arranged for a contractor to remediate the
affected areas in Triplett’s apartment. Subsequently, on July 29,
5
2016, the County reported that the violations had been corrected.
The County indicated “no further action required.”
(Capitalization omitted.) Triplett told the inspector that “the
Defendants hadn’t completely complied [with the] citation notice
[and] order.”
In August 2016, Triplett again complained to the Housing
Department about mold. Landlord inspected the unit and
repaired the areas with the suspected further mold growth. On
October 7, 2016, landlord sent Triplett notice that they would
enter her unit to take air samples in response to her complaint
that landlord’s remediation was inadequate. Triplett refused to
allow landlord entry into her unit to take air samples.
Landlord filed an unlawful detainer action against Triplett
on August 18, 2016, resulting in a stipulation and judgment that
Triplett would vacate the apartment by January 8, 2017. Under
the terms of the stipulation and judgment, landlord received no
damages. Triplett’s rights under the lease were forfeited, and the
unlawful detainer court ordered her to vacate the property by
January 8, 2017. Based on the parties’ stipulation, the judgment
further provided: “If defendant [Triplett] complies and vacates
timely plaintiff [NK Feliz Enterprises, LP] shall agree to waive
rent due through 01/08/2017[.] Plaintiff reserves the right to
account and offset all rent due through 01/08/2017 in the event
defendant brings any claims actions or lawsuits resulting from
this landlord/tenant relationship.”
After Triplett vacated the unit, landlord hired a contractor
to conduct air sampling. The air sampling “did not indicate any
significantly degraded indoor air quality.”
6
1. Triplett’s First Amended Complaint and Answer
Triplett filed a complaint June 12, 2017 and an amended
complaint November 1, 2017 against landlord. In the operative
pleading, Triplett asserted causes of action for violation of
Civil Code section 1942.4, trespass, nuisance, negligence,
intentional infliction of emotional distress, intentional
misrepresentation, concealment, and false promise. Triplett
alleged that water damaged her apartment causing mold on
walls, inside kitchen cabinets, and on shelves in kitchen cabinets.
Triplett alleged that, as a result of the mold, Triplett “sustained
physical injury, emotional distress and property damages . . . .”
Triplett asserted that instead of remediating the mold, Decron
painted over it. Triplett further alleged Decron was negligent in
allowing the defective condition to continue “without proper and
complete removal.” According to the operative complaint:
“Defendants attempted to paint over the toxic mold, and/or hide
some of the defective conditions behind paint, particleboard or
other rigid materials . . . .” The trespass cause of action
concerned a trespass allegedly occurring on October 27, 2016.
Triplett alleged that Decron or its agents removed her personal
property to conceal evidence related to Decron’s failure to
remediate the mold in Triplett’s apartment.
After the trial court overruled their demurrers, landlord
answered the complaint. Among other affirmative defenses,
landlord asserted that Triplett’s claims were barred by the
statute of limitations.
7
2. Landlord’s First Amended Cross-Complaint and
Answer
Landord filed a cross-complaint against Triplett, asserting
causes of action for unpaid rent and late charges totaling
$21,946.45. Triplett denied the cross-complaint’s allegations and
asserted several affirmative defenses.
3. Motion for Summary Judgment or Summary
Adjudication on Triplett’s First Amended Complaint
and Opposition Thereto
On August 22, 2018, landlord filed a motion for summary
judgment, or in the alternative, summary adjudication of all
causes of action in Triplett’s first amended complaint. Landlord
argued: “This is a personal injury case based on Plaintiff’s
alleged mold exposure at her apartment where she lived between
2011 and 2017. She claims her landlord and property manager
failed to adequately respond to reports of water intrusion and
mold growth. [¶] This Court should grant summary judgment
because her entire action is time-barred. Plaintiff’s verified
Complaint alleges water intrusion, mold problems, and wrongful
conduct dating back to February 2014. She did not file this
action until June 2017, long after the two-year statute of
limitation had run.” The motion states: “Defendants remediated
the July 2016 mold growth promptly upon notification.”
Landlord contended that the two-year statute of limitations in
Code of Civil Procedure section 335.1 governed all Triplett’s
causes of action. That statute sets forth a two-year limitation
period for an action based on an injury to another. (Code Civ.
Proc., § 335.1.)
8
In her opposition, Triplett argued that landlord waived the
right to assert the statute of limitations because they did not
raise it in their answer. Triplett also argued that mold spores
were released in her apartment on July 20, 2016 thus removing
the case from the two-year statute of limitations.
In addition to the statute of limitations, landlord argued
that they were entitled to the summary adjudication of each
cause of action for the following additional reasons:
a. Civil Code section 1942.4
Landlord argued they were entitled to summary
adjudication of Triplett’s cause of action for violation of
Civil Code section 1942.4 because (1) Triplett had no recoverable
damages; and (2) landlord complied with the statute. Civil Code
section 1942.4 prohibits a landlord from collecting rent if the
premises contains conditions that “endangers the life, limb,
health, property, safety, or welfare of the public or the occupants
of the dwelling.” (Civ. Code, § 1942.4, subd. (a)(1).)
In support of its request for summary adjudication,
landlord provided evidence that the Health Department
inspected Triplett’s unit on July 12, 2016 and found water
damage. Three days later landlord retained a company to
conduct sampling, and five days after that landlord hired a
company to remediate the mold. The hired company was certified
to perform mold remediation services. Nine days later, on
July 29, 2016, the Health Department reported that the violation
had been corrected.
In her opposition to summary judgment, Triplett countered
that landlord admitted to violating Civil Code section 1942.4
because they did not effectively deny the allegations in their
answer. Triplett’s only citation in opposition to summary
9
adjudication of the section 1942.4 cause of action were to her first
amended complaint and landlord’s answer.
b. Breach of warranty of habitability, nuisance,
and negligence per se
In their motion for summary adjudication, landlord argued
that the cause of action for breach of warranty of habitability
failed because (1) Triplett released all claims related to the
February 14 water intrusion; and (2) landlord remediated the
July 2016 mold growth promptly upon notification. Landlord
relies on the above summarized evidence to show that they
promptly remediated the 2016 mold intrusion. Similarly, with
respect to the causes of action for nuisance and negligence per se,
landlord argued that they promptly remediated the mold
described in Triplett’s additional complaints.
In her opposition, Triplett argued that landlord failed
properly to address her allegations and therefore admitted all of
them.
c. Trespass
Landlord argued they were entitled to the summary
adjudication of Triplett’s trespass cause of action because there
was no evidence landlord entered Triplett’s apartment without
her consent or “trespassed to remove or attempt to destroy
Plaintiff’s property.” In its separate statement in support of
summary adjudication of Triplett’s cause of action for trespass,
landlord stated no employee or agent entered Triplett’s
apartment without her consent and supported this statement
with a declaration from Jason Dizon, the community manager for
the apartment building where Triplett lived.
10
In her opposition, Triplett again cited only to her first
amended complaint and landlord’s answer.
d. Intentional infliction of emotional distress
Turning to the cause of action for intentional infliction of
emotional distress, landlord argued that their conduct was not
outrageous as a matter of law.
In her opposition, Triplett argued landlord admitted that
they intentionally caused her emotional distress. In addition to
referring to the parties’ pleadings, Triplett cited to evidence that
landlord did not give her the results of a mold test. She cited no
legal authority in support of the conclusion that the failure to
reveal a mold test would show the existence of a material fact as
to whether that conduct was outrageous.
e. Intentional misrepresentation, concealment,
false promise
Finally, with respect to the remaining three causes of
action for intentional misrepresentation, concealment, and false
promise, landlord argued that they were entitled to summary
adjudication because Triplett lacked any evidence of fraudulent
conduct. According to landlord, after Triplett vacated the
apartment, landlord tested for mold and there were no elevated
mold levels in the apartment.
In her opposition, Triplett argued that from July 21, 2016
through January 8, 2017, landlord refused to make the necessary
repairs. Triplett cited to no evidence to support her argument. In
her separate statement, she repeatedly relied on the following
statement: “Disputed—Not a material fact. No affirmative
defense raised here or in Defendants[’] Answer to Plaintiff’s
FAC[;] simply conjecture and/or contains a negative pregnant.”
11
4. Landlord’s Motion for Summary Judgment on the
Cross-Complaint and Opposition Thereto
On August 22, 2018, landlord filed a motion for summary
judgment on its cross-complaint. Landlord stated that it
“performed each and every required condition under the lease”
and that Triplett breached her obligation to pay rent.
Triplett’s opposition is not in the record. It appears that in
opposing summary judgment, Triplett argued the cross-complaint
was barred by the doctrine of res judicata.
5. The Trial Court Orders Summary Judgment on
Triplett’s First Amended Complaint and Landlord’s
First Amended Complaint
In an order dated December 12, 2018, the trial court
granted landlord’s motions for summary judgment. With respect
to Triplett’s lawsuit, the trial court concluded: “Plaintiff[’]s
verified Complaint alleges water intrusion, mold problems, and
wrongful conduct, in February 2014, and the pleading was filed
on June 12, 2017, after the two-year statute[ ] of limitation had
expired.”
With respect to landlord’s lawsuit the trial court stated,
“The stipulated judgment is not res judicata, in relation to the
cross-complaint, because the underlying stipulation expressly
reserved the issues. [¶] Where an issue was reserved, it was not
encompassed in the judgment, which therefore is not barred by
res judicata.”
12
6. Landlord’s Memorandum of Costs, Triplett’s
Opposition, and the Court’s Award of Costs
After issuing orders granting landlord’s motions for
summary judgment, landlord moved for an order of costs and
attorney fees. On April 9, 2019, landlord filed a memorandum of
costs seeking $10,512.76. Triplett filed a motion to strike the
memorandum of costs on the ground that it was not timely filed.
According to Triplett, the motion for an order of costs was not
timely because it was filed more than 15 days after the court
entered final judgment. The document Triplett identifies as a
judgment is not a judgment, but instead, orders granting both
motions for summary judgment.
The trial court denied Triplett’s motion to tax costs. The
court explained that the motion could not be untimely because
judgment had not been entered. Triplett demonstrated no error
in the memorandum of costs because she “made no arguments
and provided no facts in support of a finding that costs are not
reasonable or necessary.”
7. Landlord’s Motion for Attorney Fees, Triplett’s
Opposition, and the Court’s Award of Significantly
Reduced Fees
On April 12, 2019, landlord moved for attorney fees
incurred in prosecuting their cross-complaint. They sought
$84,995.25 in attorney fees and an additional $5,069.80 for
bringing the motion for attorney fees. The motion was based on
the following attorney fee provision in the parties’ lease: “If any
action or proceeding is brought by Landlord pertaining to or
arising out of this Lease, the prevailing party shall be entitled to
recover all costs and expenses, including reasonable attorneys’
13
fees, incurred on account of such action or proceeding.” Landlord
calculated the amount by dividing in half the total fees incurred
in defending against Triplett’s complaint and prosecuting their
lawsuit.
Triplett opposed the motion for attorney fees. Triplett
argued that the motion for attorney fees was untimely filed.
Triplett contended the parties’ stipulation in the unlawful
detainer action precluded landlord from seeking attorney fees.
Triplett also maintained that the number of hours and amounts
charged in the motion were unreasonable, and that landlord
failed to document their hours adequately.
The trial court awarded landlord only $1,586.79 in attorney
fees. The trial court concluded that landlord had failed to
support its request for $84,995.25 in fees with sufficient evidence.
The court rejected Triplett’s argument that the motion was
untimely, explaining that the court had not yet entered judgment
at the time landlord filed its motion.
8. Judgment
On August 13, 2019, the trial court entered judgment on
the complaint and cross-complaint. The judgment recites that
Triplett was awarded nothing in her lawsuit. The trial court
awarded landlord damages in the amount of $21,946.45;
$2,920.86 for prejudgment interest; $1,586.79 for attorney fees;
and $10,512.76 for costs. In total, Triplett owed landlord
$36,966.86 under the judgment.
Triplett filed multiple notices of appeal. This court initially
consolidated the first two appeals, both purporting to appeal from
an order granting summary judgment. We deem the appeals
from the order granting summary judgment on Triplett’s lawsuit
and the order granting summary judgment on landlord’s
14
lawsuit to be from the judgment. (Taylor v. Trimble (2017)
13 Cal.App.5th 934, 939 [court of appeal has “discretion to treat
an appeal from an order granting summary judgment as an
appeal filed after the entry of judgment”].) This court later
consolidated the latter two appeals with Triplett’s appeal from
what she describes as a postjudgment order in which Triplett
challenges the trial court’s award of costs and attorney fees. As
noted above, the trial court awarded costs and attorney fees in a
judgment, not a postjudgment order. We deem Triplett’s appeal
from the purported postjudgment order to be from the judgment.
Thus, all the now consolidated appeals are from the judgment.
DISCUSSION
A. Standard of Review
“ ‘We review the ruling on a motion for summary judgment
de novo, applying the same standard as the trial court.’
[Citation.] ‘Summary judgment is appropriate only “where no
triable issue of material fact exists and the moving party is
entitled to judgment as a matter of law.” ’ [Citation.] We view
the evidence in the light most favorable to the nonmoving party
and draw all reasonable inferences in its favor.” (Barenborg v.
Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 76.)
“In reviewing an order granting summary adjudication of an
issue, we apply the same de novo standard of review that applies
to an appeal from an order granting summary judgment.”
(Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 363.)
Although we apply a de novo standard of review, we are not
bound by the trial court’s reasoning. (Horn v. Cushman &
Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805.)
“We accept as true the facts alleged in the evidence of the party
15
opposing summary judgment and the reasonable inferences that
can be drawn from them. [Citation.] However, to defeat the
motion for summary judgment, the plaintiff must show ‘ “specific
facts,” ’ and cannot rely upon the allegations of the pleadings.”
(Ibid., italics added.) A defendant may satisfy its burden on
summary judgment by demonstrating that the plaintiff cannot
establish one element of a cause of action. (Wall Street Network,
Ltd. v. New York Times Co., supra, 164 Cal.App.4th at p. 1176.)
“The defendant need not ‘conclusively negate’ the element; all
that is required is a showing ‘that the plaintiff does not possess,
and cannot reasonably obtain, needed evidence.’ ” (Ibid.)
“ ‘On review of a summary judgment, the appellant has the
burden of showing error, even if he did not bear the burden in the
trial court. [Citation.] . . . “[D]e novo review does not obligate us
to cull the record for the benefit of the appellant in order to
attempt to uncover the requisite triable issues. As with an
appeal from any judgment, it is the appellant’s responsibility to
affirmatively demonstrate error and, therefore, to point out the
triable issues the appellant claims are present by citation to the
record and any supporting authority. In other words, review is
limited to issues which have been adequately raised and briefed.”
[Citation.]’ [Citation.]” (Golightly v. Molina (2014)
229 Cal.App.4th 1501, 1519.)
A self-represented party on appeal “ ‘is to be treated like
any other party and is entitled to the same, but no greater
consideration than other litigants and attorneys. [Citation.]’ ”
(Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) When an
appellant fails to raise a point, or fails to support a point with
reasoned argument and citations to authority, it is forfeited.
(Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785.)
16
B. The Defense of Statute of Limitations Was
Sufficiently Alleged in Landlord’s Answer
On appeal, Triplett argues landlord failed to allege a
statute of limitation defense properly, and therefore could not
rely on it in seeking summary judgment. In their answer to
Triplett’s first amended complaint, landlord stated: “Plaintiff’s
claims are barred by the applicable limitation statutes and
statutes of repose, including but not limited to sections 335.1,
337, 337.15, 338, 339, 340.8, and 343 of the California Code of
Civil Procedure.”
“Generally, a defendant must plead defenses in an answer
or demurrer, or risk waiver. (Code Civ. Proc., § 430.80, subd. (a).)
A defendant waives a statute of limitations defense by failing to
plead it in an answer or raise it as a ground of a general
demurrer.” (Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th
824, 842–843.) Here, landlord timely raised the statute of
limitations by asserting it in their answer. Although it would
have been better for landlord to link the specific limitation period
to a specific cause of action, alleging the statute of limitations
defense and citing specific code section were sufficient. (See Orr
v. City of Stockton (2007) 150 Cal.App.4th 622, 628–629, fn. 3.)
Finally, to the extent Triplett is attempting to argue that
landlord was required to state the facts supporting the statute of
limitations defense, her argument lacks merit. Code of Civil
Procedure section 458 provides: “In pleading the Statute of
Limitations it is not necessary to state the facts showing the
defense, but it may be stated generally that the cause of action is
barred by the provisions of Section ____ (giving the number of the
section and subdivision thereof, if it is so divided, relied upon) of
The Code of Civil Procedure; and if such allegation be
17
controverted, the party pleading must establish, on the trial, the
facts showing that the cause of action is so barred.”
C. Triplett’s Challenges to the Court’s Application of
the Statute of Limitations Do Not Demonstrate
Reversible Error
Triplett argues that the trial court erroneously applied
the statute of limitations for personal injury claims to bar all
her causes of action. Triplett emphasizes that she alleged
nine causes of action, not all of which were causes of action for
personal injury, and thus the trial court should not have applied
the same statute of limitations to all her causes of action.
Triplett also contends she alleged that the harm continued on
July 20, 2016, when landlord allegedly failed to contain the mold
appropriately when they were remediating the mold in her
apartment.
For purposes of this appeal, we assume that the trial court
erred in applying a singular statute of limitations, as Triplett
argues. Triplett, however, fails to demonstrate that the judgment
must be reversed because she fails to consider any of the
remaining grounds for summarily adjudicating each cause of
action. As noted, this court reviews the trial court’s judgment,
not its rationale. (Horn v. Cushman & Wakefield Western, Inc.,
supra, 72 Cal.App.4th at p. 805.)
By failing to address these other grounds on appeal,
Triplett has forfeited the argument that the trial court erred in
summarily adjudicating each cause of action. The “failure to
address summary adjudication of a claim on appeal constitutes
abandonment of that claim.” (Wall Street Network, Ltd. v. New
York Times Co., supra, 164 Cal.App.4th at p. 1177.) Even if the
18
standard of review is de novo, the failure to address an issue
constitute abandonment. (Ibid.)
We also observe that as noted in our Background section, in
opposing landlord’s motion seeking summary judgment or
adjudication of the claims in her operative complaint, Triplett
relied almost exclusively on the parties’ pleadings, purporting to
dispute facts merely by stating: “Not a material fact for the
Defendants. No affirmative defense raised here or in
Defendants[’] Answer to Plaintiff’s FAC[;] simply conjecture
and/or contains a negative pregnant.” By failing to cite to
evidence, Triplett failed to raise a triable issue of material fact.
Although she alleged that landlord failed to remediate the mold
adequately, Triplett did not dispute the key fact demonstrating
remediation. Specifically, Triplett did not cite to any evidence
disputing the fact that after she vacated the unit, tests showed
that there was no “degraded indoor air quality.” For all of these
reasons, Triplett fails to carry her burden on appeal to show that
the trial court erred in granting summary judgment. (Golightly
v. Molina, supra, 229 Cal.App.4th at p. 1519 [appellant has the
burden to demonstrate error].)
Finally, Triplett argues that, “summary judgment
should not have been granted in favor of the
defendants/respondents because the court failed to consider any
of the plaintiff/appellant’s papers and evidence that raised a
triable issue of a material fact.” (Boldface & capitalization
omitted.) Triplett identifies no fact that the trial court allegedly
ignored. Triplett identifies no disputed material fact supported
by evidence that this court should consider in reviewing for error.
She thus fails to demonstrate any error in the judgment in favor
of landlord on her first amended complaint or on landlord’s first
19
amended cross-complaint. (Shiver v. Laramee (2018)
24 Cal.App.5th 395, 400 [“ ‘ “As with an appeal from any
judgment, it is the appellant’s responsibility to affirmatively
demonstrate error and, therefore, to point out the triable issues
the appellant claims are present by citation to the record and any
supporting authority. . . .” [Citation.]’ ”].)
D. Triplett Fails to Show that She is Entitled to a
Judgment in Her Favor as a Matter of Law
Triplett also argues that the trial court should be ordered
to award summary judgment in her favor on her first amended
complaint. According to Triplett, landlord “admit[ted] to the
truthfulness of each and every material fact set forth in the
appellant’s nine causes of action.” Triplett did not file a motion
for summary judgment in the trial court and cannot seek
summary judgment for the first time in this court. Additionally,
the record does not support Triplett’s assertion that landlord
admitted the allegations in her first amended complaint.
E. Triplett Demonstrates No Error in the Judgment on
Landlord’s Cross-Complaint
Triplett challenges the judgment on the cross-complaint on
two grounds. First, she argues that the doctrine of res judicata
precluded landlord from seeking rent. Second, she asserts that
the amount of damages was in dispute. Neither argument has
merit.
Turning to Triplett’s first argument, Triplett states that
landlord contended she failed to pay rent “on October 27,
2016 . . . in their unlawful detainer case.” (Underscoring
omitted.) Triplett argues because “[t]he cross-complaint alleges
the same causes of action, [it] is therefore barred by res judicata.”
20
“ ‘ “Res judicata” describes the preclusive effect of a final
judgment on the merits. Res judicata, or claim preclusion,
prevents relitigation of the same cause of action in a second suit
between the same parties or parties in privity with them.’ ”
(Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (2008)
168 Cal.App.4th 675, 683.)
Res judicata does not apply here to bar landlord’s lawsuit
against Triplett. In the unlawful detainer litigation, the parties’
stipulation provided landlord would waive rent if Triplett
refrained from filing a lawsuit. Specifically, the stipulation
recites: “If defendant [Triplett] complies and vacates timely
plaintiff [NK Feliz Enterprises, LP] shall agree to waive rent due
through 01/08/2017[.] Plaintiff reserves the right to account and
offset all rent due through 01/08/2017 in the event defendant
brings any claims actions or lawsuits resulting from this
landlord/tenant relationship. [¶ ] Defendant reserves the right
to bring a claim action or lawsuit which may have resulted from
this landlord/tenant relationship.” It is undisputed the causes of
action in Triplett’s complaint arise out of the landlord-tenant
relationship. Triplett filed a lawsuit thus entitling landlord to
seek unpaid rent.
Next, Triplett argues because damages on the cross-
complaint are disputed, there is a triable issue of material fact
barring entry of summary judgment. Triplett’s argument lacks
merit because in her separate statement of material fact, she
did not provide any evidence contrary to the following facts:
(1) On April 1, 2016, Triplett stopped paying rent; (2) Triplett
did not pay rent for the next nine months; and (3) Triplett owed
$20,704.20 for unpaid rent and $1,242.25 for late charges when
she vacated the unit on January 8, 2017. In short, the
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undisputed facts supported entry of summary judgment in
landlord’s favor on it cross-complaint.
F. Judicial Bias
Triplett argues that the trial court was biased against her
because it failed to articulate its reasons for granting summary
judgment. She also argues the trial court granted summary
judgment because it did not want to conduct a trial. Triplett cites
only to pages 301 and 302 of the reporter’s transcript, which
are not included in the record on appeal. We have reviewed the
entire record and find no support for Triplett’s assertion that the
trial court was biased against her. Instead, the record reveals
that Triplett did not demonstrate the existence of a triable issue
of material fact warranting trial.
G. Landlord’s Memorandum of Costs and Motion for
Attorney Fees Were Timely
On December 12, 2018, the trial court issued an order
granting summary judgment. On August 13, 2019, the trial court
issued a judgment.
Triplett argues that landlord’s memorandum of costs, filed
on April 9, 2019, and motion for attorney fees, filed on April 12,
2019, were untimely because they were not filed within 15 days
of the entry of judgment. Triplett’s argument that landlord’s
memorandum of costs and motion for attorney fees were untimely
is based on the incorrect premise that the trial court’s order
granting summary judgment was equivalent to a judgment. The
record shows that judgment was entered only after the trial court
awarded costs and attorney fees. Triplett’s claim of untimeliness
is thus not well-founded.
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DISPOSITION
The judgment is affirmed. Each party shall bear its own
costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
SINANIAN, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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