fastcase The trial court entered judgment against Jackson. PROCEDURAL BACKGROUND

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1 Jackson v. Rod Read and Sons. C Page 1 SAUNDRA JACKSON, Plaintiff and Appellant, v. ROD READ AND SONS, Defendant and Respondent. C Court of Appeals of California, Third Appellate District, Sacramento June 11, 2009 Not to be Published Appeal from the Super. Ct. No. 05AS NICHOLSON, J. Plaintiff Saundra Jackson sued her landlord, Rod Read and Sons (Read), for breach of the implied warranty of habitability. She alleged that dampness, mold, and odor from water leaking from a broken pipe in her apartment caused her annoyance and discomfort. The trial court granted summary judgment, fmding insufficient evidence that the circumstances in her apartment caused her injuries. We affirm, albeit on a different ground. We conclude that the evidence presented in the summary judgment proceedings did not establish a breach of the warranty of habitability. PROCEDURAL BACKGROUND Jackson sued Read and others (who are not involved in this appeal). The second amended complaint alleged causes of action for negligence, negligent breach of the implied warranty of habitability, negligent nuisance, negligent breach of the implied covenant of quiet use and enjoyment, violation of statutory duties, and breach of contract. The allegations in the complaint related to Jackson's tenancy in the Larkspur Place Apartments, owned by Read. She alleged that she suffered physical and emotional injuries as a result of the condition of the premises. The trial court granted Read's motion to strike the statutory violation cause of action because Jackson did not meet the prerequisites for maintaining the cause of action. Read filed a motion for summary judgment. In the motion, it contended that (1) the action is barred by the statute of limitations, (2) Jackson cannot establish a breach of duty, (3) Read's actions were not a substantial factor in causing her injury, and (4) the nuisance claim fails because Jackson did not sustain property damage. The trial court granted the motion. It determined that (1) Read presented undisputed evidence that there is no causal link between Read's alleged conduct and Jackson's alleged injuries, (2) Jackson presented no evidence that she suffered emotional injuries but instead merely declared that she was "distressed, annoyed, and upset," and (3) the evidence did not show that Jackson's alleged injuries reasonably resulted from a fear of mold. The trial court did not decide whether Read's other contentions (statute of limitations, breach of duty, and lack of property damage) had merit. The trial court entered judgment against Jackson. Read filed a motion for attorney fees, and Jackson did not oppose the motion. The trial court awarded $43,042 in attorney fees to Read. Jackson appeals from the judgment and the award of attorney fees. FACTS These facts are taken from Read's separate statement of undisputed facts and Jackson's response. While Jackson responded, item by item, to Read's separate statement of undisputed facts, she did not file a statement of disputed facts, as provided for in Code of Civil Procedure, section 437c, subdivision (b )(3). As did the trial court, however, we consider the factual statements made in Jackson's declaration, which she filed in opposition to the motion for summary judgment. 1 Jackson's claims arise from the condition of her apartment while she was a tenant of - 1.

2 Larkspur Place Apartments. On June 1, 2003, Jackson moved into apartment #25 from another apartment in the complex. She noticed that the bathroom carpet was damp and reported it to the apartment manager, Pat Campbell. By the next day, a carpet cleaner placed blowers in the apartment to dry it. However, after three days, the carpet was still damp. A plumber discovered a leaky pipe under the kitchen sink was causing the dampness. About a week to 10 days later, the plumber ftxed the pipe. After the pipe was ftxed, Jackson continued to notice a moldy odor in the apartment. Jackson reported the odor to Campbell, but nothing was done. Eventually, Jackson pulled back the carpet in the vanity area of the bathroom and discovered mold. On October 1, 2003, Jackson reported her discovery of the mold to Campbell. A maintenance crew went to apartment #25, removed the bathroom vanity, including the cabinet and sink, and cleaned the area with bleach, which is a common mold remediation technique. The vanity was placed back in the bathroom after four or ftve days, when the area was dry. Jackson took samples of molds from apartment #25 and from the apartment she lived in before moving into apartment #25. She commingled the samples and gave them to a laboratory, Micro-Test, for testing. Because of the commingling, Micro-Test could not determine what, if any, mold came from apartment #25. Jackson attributed several physical problems (flu-like symptoms, hoarseness, irritation to her throat, stomach pains, upset stomach) to her exposure to mold. However, the doctors whom Jackson went to concerning these symptoms opined that the symptoms were not caused by exposure to mold. 2 In her declaration ftled in opposition to the motion for summary judgment, Jackson claims that she suffered emotional annoyance and discomfort because of the conditions in her apartment. During the period of the initial attempt to dry the carpet (before the leak was discovered), Jackson was "inconvenienced, upset and distressed because [she] couldn't use the vanity area." She continued to smell a moldy odor and "began to feel extremely distresses [sic], annoyed, upset and angry that the landlord was not correcting these problems." When she discovered the mold she "believed [she] was becoming physically ill from the mold and extremely concerned about [her] health, upset and frustrated about the lack of proper attention or repair to the mold and the smell in the apartment. " 3 STANDARD OF REVIEW The applicable standard of review after summary judgment has been summarized by the Supreme Court. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Ca1.4th 1138, 1142 (Wiener ).) Although the Supreme Court discusses review of a tort action based on negligence, the discussion also applies to a tort action based on the breach of the warranty of habitability: "Because plaintiffs appealed from the trial court's order granting defendants summary judgment, we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action. [Citation.] As we stated in Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181 (Sharon P.), involving a negligence claim based on a criminal act and resolved on summary judgment, 'To prevail on [an] action in negligence, plaintiff[s] must show that defendants owed [them] a legal duty, that they breached the duty, and that the breach was a proximate or legal cause of [their] injuries.' [Citations.] We have recently observed that the amendments to Code of Civil Procedure section 437c modifted the Sharon P. rule to place the initial burden on the defendant moving for summary judgment and shift it to the plaintiff upon a showing that the plaintiff cannot establish one or more elements of the action. [Citation.] [1) In this action, therefore, we must determine whether defendants have shown that plaintiffs have not established a prima facie case of negligence, 'a showing that would forecast the inevitability of a nonsuit in defendants' favor. If so, then under such circumstances the 2

3 trial court was well justified in awarding summary judgment to avoid a useless trial.' [Citations.] [fl In performing our de novo review, we view the evidence in the light most favorable to plaintiffs as the losing parties. [Citation.] In this case, we liberally construe plaintiffs' evidentiary submissions and strictly scrutinize defendants' own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs' favor. [Citation.]" (Wiener, supra, 32 Cal.4th at p ) DISCUSSION I Warranty of Habitability Landlords in this state impliedly warrant that the residential premises they lease are habitable and will remain habitable for the duration of the lease. (Green v. Superior Court (1974) 10 Cal.3d 616, 637 (Green).) A tenant may ( 1) fix and repair uninhabitable premises as provided by Civil Code section 1941 et seq., (2) bring an independent action for breach of the implied warranty of habitability, or (3) raise the landlord's breach as a defense in an unlawful detainer action. (Green, supra, at pp ) Laws listing specific housing requirements provide "helpful guidance in determining whether a landlord has satisfied the common law warranty of habitability." (/d. at pp , fn. 23.) "[The] implied warranty of habitability does not require that a landlord ensure that leased premises are in perfect, aesthetically pleasing condition, but it does mean that 'bare living requirements' must be maintained. In most cases substantial compliance with those applicable building and housing code standards which materially affect health and safety will suffice to meet the landlord's obligations under the common law implied warranty of habitability we now recognize... '[Minor] housing code violations standing alone which do not affect habitability must be considered de minimus and will not entitle the tenant to reduction in rent....'[citation.]" (/d. at p. 637, fns. omitted, original italics.) "The implied warranty of habitability recognized in Green gives a tenant a reasonable expectation that the landlord has inspected the rental dwelling and corrected any defects disclosed by that inspection that would render the dwelling uninhabitable. The tenant further reasonably can expect that the landlord will maintain the property in a habitable condition by repairing promptly any conditions, of which the landlord has actual or constructive notice, that arise during the tenancy and render the dwelling uninhabitable." (Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1205, fn. omitted.) Here, the judgment entered against Jackson was proper because the separate statements of undisputed facts and her declaration do not support a fmding that Read breached the warranty of habitability. Although there were defects in the apartment, including the broken pipe, odor, dampness, and mold, the actions of Read in remedying those defects were reasonable. 4 The original problem appears to have been the broken pipe under the sink in the kitchen. The first noticed symptom of that problem was the wet carpet in the bathroom area. As soon as Read was put on notice that the carpet was wet, it took steps to dry it. When the attempt to dry the carpet was unsuccessful, a further investigation established that the water was coming from the broken pipe, which was fixed. Residual dampness from the pipe problem, however, resulted in the growth of mold under the carpet and within the vanity in the bathroom. When that was discovered and reported, Read remedied the situation by cleaning up the mold, removing the vanity, drying out the area, and reinstalling the vanity. None of these conditions or actions deprived Jackson of the "bare living requirements" referred to in Green. (Green, supra, 10 Cal.3d p. 637.) Jackson cites no violation of the housing code, and, if there was any violation, it was minor. Despite the minor inconveniences caused by the circumstances (and Jackson's apparently exaggerated response to those circumstances), the conditions of the apartment and the actions of Read did not -3-

4 amount to a breach of the warranty of habitability. The facts of this case are unlike those of cases in which the court found a breach of the warranty of habitability. For example, in Stoiber v. Honeychuck, supra, 101 Cal.App.3d at pages 911 and 912, the Court of Appeal held that the landlord breached the warranty of habitability because "'numerous defective and dangerous conditions were in existence, including, but not limited to leaking of sewage from the bathroom plumbing; defective and dangerous electrical wiring; structural weaknesses in the walls; deteriorated flooring; falling ceiling; leaking roof; dilapidated doors; broken windows; and other unsafe and dangerous conditions."' (!d. at pp ) Because Jackson raised no triable issue of fact concerning the alleged breach of the warranty of habitability, the trial court properly granted summary judgment. 5 II Attorney Fees Jackson's appeal from the order awarding attorney fees is based solely on her contention that the trial court erred in granting summary judgment. Therefore, since we find no merit in her argument that the trial court erred in granting summary judgment, we also fmd no merit in her contention that the attorney fees award must be reversed. DISPOSITION The judgment and the order awarding attorney fees are affirmed. Read is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).) Notes: We concur: BLEASE, Acting P. J. RAYE,J. 1. Subdivision (b)(3) of Code of Civil Procedure section 437c states: "The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion." (Italics added.) Whether to grant a motion for summary judgment because the plaintiff failed to file a separate statement of disputed facts is subject to the discretion of the trial court. (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1208.) Read contends that the trial court could have granted the motion for summary judgment based solely on Jackson's failure to file a separate statement of disputed facts, even though she responded to Read's statement of undisputed facts. We need not consider this contention because the court did not grant the motion for summary judgment based on this particular procedural failing. 2. We need not summarize the various doctors' reports or related evidence because, although Jackson alleged in her complaint that the mold caused physical problems, she argues on appeal that her claims are based on emotional injuries only. In her reply brief, Jackson states "that triable issues of fact exist in this action, not for physical or other injuries as documented in medical records, but for purely emotional intangible injuries of discomfort annoyance [sic]... " 3. Read asserts that we should not consider Jackson's declaration concerning her annoyance and discomfort because it merely restates the original complaint. (See Snider v. Snider (1962) 200 Cal.App.2d 741, 755 [simply restating ultimate facts alleged in complaint does not raise triable issue].) We disagree. Jackson's declaration connected her annoyance and discomfort to specific incidents with respect to the rented apartment. It did not merely restate the ultimate facts contained in the complaint. 4. Ahhough Jackson asserts in her opening brief that the condition of the premises is actionable under all of the causes of action she pled in her complaint, she -4

5 admits on appeal that she had no injury other than annoyance or discomfort. According to the authorities cited by Jackson in her briefing, damages for annoyance and discomfort may be recovered if the annoyance and discomfort are caused by a breach of the warranty of habitability. (See Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, [damages available for "annoyance or discomfort" caused by breach of warranty of habitability].) She cites no authority, however, that damages for annoyance or discomfort are available for any other cause of action that she pled in her complaint. Accordingly, because (1) Jackson's injury, if any, was limited to annoyance or discomfort, and (2) her cause of action for breach of the warranty of habitability is the only cause of action for which she asserts that damages are available for annoyance and discomfort, we limit our analysis to whether the evidence in the record supports Jackson's cause of action for breach of the warranty ofhabitability. 5. While Read asserted, as one of its grounds for summary judgment, that Jackson failed to establish a breach of the warranty of habitability, the trial court did not rule on that ground. The fact that the trial court did not rule on that ground, however, does not prevent us from exammmg the issue on appeal because the parties have briefed the issue. Subdivision (m)(2) of Code of Civil Procedure section 437c requires us to give the parties the chance to brief any ground not relied on by the trial court to grant summary judgment if we intend to rely on the ground in affirming. That subdivision states, in pertinent part: "Before a reviewing court affirms an order granting summary judgment or summary adjudication on a ground not relied upon by the trial court, the reviewing court shall afford the parties an opportunity to present their views on the issue by submitting supplemental briefs." Although the trial court did not rely on the lack of a breach of the warranty of habitability in granting summary judgment, we need not obtain supplemental briefing because the parties have briefed the issue of whether there was a breach. "We uphold judgments if they are correct for any reason, 'regardless of the correctness of the grounds upon which the court reached its conclusion.' [Citation.]" (United Pacific Ins. Co. v. Hanover Ins. Co. (1990) 217 Cal.App.3d 925, 933.) -5.