Filed 5/14/18 Reyes v. Bernel CA5







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

ENRIQUE REYES et al.,

Plaintiffs and Appellants,

v.

DAVID BERNEL et al.,

Defendants and Respondents.

F074647

(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., for Plaintiff and Appellant.
Guadalupe Reyes, in pro per., for Plaintiff and Appellant.
Law Offices of Frank M. Nunes and Frank M. Nunes for Defendants and Respondents.
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Appellants, Enrique Reyes and Guadalupe Reyes, rented a portion of a parcel of land from Kutnerian Enterprises and Migran Kutnerian (Kutnerian), upon which appellants parked their travel trailer. Respondents, David Bernel and Joann Bernel, other tenants on Kutnerian’s property, supplied appellants with electricity from their meter and water from their well. After the Bernels 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 granted judgment on the pleadings on all causes of action alleged against the Bernels. The court relied on the preclusive effect of the final judgment in the unlawful detainer action filed by Kutnerian against appellants and appellants’ failure to state a cause of action. Thereafter, the court dismissed the complaint as to the Bernels and entered judgment in their favor.
Appellants challenge the dismissal of their complaint arguing the trial court erred when it relied on the findings made in the unlawful detainer action. Appellants further assert they stated causes of action for elder abuse, utility cutoff, negligence, nuisance, and intentional infliction of emotional distress. Appellants also contend the trial court abused its discretion when it awarded discovery sanctions against them.
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 the Bernels. According to appellants, they moved their travel trailer onto a portion of property owned by Kutnerian under an oral rental agreement. The Bernels were also tenants on the property and lived in a mobile home that 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’ electric 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 the Bernels for elder abuse, utility cutoff in violation of Civil Code section 789.3, negligence, nuisance, and intentional infliction of emotional distress.
The Bernels moved for judgment on the pleadings on all causes of action alleged against them. The Bernels based their motion on appellants’ pleadings and judicial admissions and on the preclusive effect of the final judgment and findings made in the unlawful detainer action filed by Kutnerian against appellants.
The Bernels also filed a request for judicial notice of the truth of orders, findings and judgments in the unlawful detainer trial. This request included the trial transcript.
The trial court granted the Bernels’ motion for judgment on the pleadings and their request for judicial notice. Regarding elder abuse, the trial court held that appellants were required to allege physical abuse and could not do so. The court concluded the Bernels could not be liable for utility cutoff because the Bernels were not Kutnerian’s agents or employees. The court further determined that appellants could not state causes of action for negligence, nuisance or intentional infliction of emotional distress because the Bernels did not owe a duty to appellants. However, the court granted appellants leave to amend the complaint to allege a breach of contract claim. Appellants did not amend their complaint and the court entered a judgment of dismissal.
DISCUSSION
1. Standard of review.
When a complaint does not state facts sufficient to constitute a cause of action against the defendant, it is proper for the trial court to grant a motion for judgment on the pleadings. (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219 (Stevenson Real Estate).) “The grounds for the motion must appear on the face of the challenged pleading or from matters that may be judicially noticed.” (Ibid.) The trial court must accept the complaint’s factual allegations as true and give them a liberal construction. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516 (Gerawan).) However, the court does not consider conclusions of law or fact, opinions, speculation, or allegations that are contrary to law or judicially noticed facts. (Stevenson Real Estate, supra, 138 Cal.App.4th at pp. 1219-1220.)
We independently review the trial court’s ruling on a motion for judgment on the pleadings. In doing so, we also accept the complaint’s factual allegations as true and construe them liberally. (Gerawan, supra, 24 Cal.4th at pp. 515-516.) Nevertheless, as with an appeal from any judgment, the appellant has the burden to affirmatively demonstrate error. (Mark Tanner Construction, Inc. v. HUB Internat. Ins. Services, Inc. (2014) 224 Cal.App.4th 574, 584.)
2. The trial court properly took judicial notice of the factual findings made in the unlawful detainer action.
The trial court took judicial notice 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 concluded these findings pertained to that same issue that was central to appellants’ claims against the Bernels, i.e., “the agreement regarding provision of electricity to the [appellants] and its relation to the [appellants’] tenancy, and the cut-off of that electricity by Mr. Bernel.” Appellants contend the trial court erred.
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 p. 823.)
“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.” Claim preclusion bars relitigation of the claim altogether. It also bars claims that were not, but should have been, advanced in the previous suit. (DKN Holdings, supra, 61 Cal.4th at p. 824.)
“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.) Further, one who was not a party or privy in the first suit can raise issue preclusion. Thus, although the Bernels were not parties in the unlawful detainer action, they nevertheless can invoke the doctrine against appellants because appellants are bound by the unlawful detainer proceeding. (Id. at pp. 824-825.)
Appellants 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. However, 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.)
Appellants further argue that findings in an unlawful detainer action are limited to the right of possession and thus res judicata and collateral estoppel do not apply. However, 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.) Appellants raised various defenses in the unlawful detainer action and the court made the factual findings necessary to rule on those defenses. Accordingly, those factual findings are binding on appellants in their action against the Bernels and the trial court properly took judicial notice of those findings.
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 the Bernels for damages, even though the unlawful detainer action was the second lawsuit filed.
3. The trial court properly granted the motion for judgment on the pleadings.
a. The elder abuse cause of action.
Appellants allege that when the Bernels shut off the electricity to their travel trailer, they 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 from 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.)
Appellants’ 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 granted judgment on 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 elder financial abuse and the trial court erred by not recognizing that claim. According to appellants, the Bernels deprived them of a property right when they terminated appellants’ electrical power and this deprivation 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.)
The Bernels’ refusal to sell more of their electricity to appellants for use in their travel trailer did not constitute taking, secreting, appropriating, obtaining or retaining any property belonging to appellants. Nor does the complaint allege that the Bernels took appellants’ electricity or deprived them of the quiet enjoyment or use of the property by undue influence, for a wrongful use, or with intent to defraud. The Bernels merely ceased to perform under an alleged contract of indeterminate term to sell electricity to appellants. Thus, no error occurred.
b. The utility cutoff cause of action.
Appellants allege that the Bernels are liable for damages for terminating their electrical service under Civil Code section 789.3, subdivision (a). That section provides, in part, “A landlord shall not with intent to terminate the occupancy under any lease … of property used by a tenant as his residence willfully cause, directly or indirectly, the interruption or termination of any utility service furnished the tenant .…” Thus, for liability to attach, either the landlord or the landlord’s agent must terminate the service. (Otanez v. Blue Skies Mobile Home Park (1991) 1 Cal.App.4th 1521, 1526.)
Appellants allege in their complaint that their landlord was Kutnerian and that the Bernels were also Kutnerian’s tenants. Further, in the unlawful detainer action the court found David Bernel was not Kutnerian’s agent or employee. As noted above, this factual finding is binding on appellants. Thus, appellants cannot establish an element of a cause of action under Civil Code section 789.3, i.e., that the landlord or the landlord’s agent terminated the utility service. Accordingly, the trial court properly granted judgment on the pleadings on this cause of action.
c. The negligence cause of action.
Appellants’ complaint alleges that the Bernels owed a duty of care to them while acting as fiduciaries and that the Bernels breached that duty by cutting off the electricity. Appellants allege that they and the Bernels were neighbors and that they entered into a contract to provide electricity to appellants. However, appellants have not alleged any facts to support their fiduciary relationship claim.
Either a confidential relationship or a fiduciary relationship can arise where one person has confidence in the integrity of another and the other person voluntarily accepts or assumes to accept that confidence. However, unlike a confidential relationship, a fiduciary relationship is a recognized legal relationship such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and client and is legally defined and regulated. (Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 270-271.)
Here, the fact that appellants and the Bernels entered into an arms-length contract did not give rise to a fiduciary relationship. (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 32-33.) Similarly, appellants’ age and Guadalupe’s disability did not cause the Bernels to be fiduciaries. There is no evidence the Bernels accepted a duty to protect appellants when they agreed to share their electricity. Thus, appellants did not adequately allege a duty of care owed to them by the Bernels.
As noted by the trial court, the Bernels did not owe an independent tort duty to provide electricity to appellants. They were neither the landlord nor the landlord’s agent. Thus, the Bernels’ decision to stop providing electricity was at most, a breach of contract. Merely breaching an alleged contract does not support a tort action. To become tortious, the breach must also violate an independent duty arising from principles of tort law. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515.) Accordingly, appellants did not state a cause of action for negligence. Although the trial court granted appellants leave to amend their complaint to state a breach of contract cause of action, appellants did not do so.
d. The nuisance cause of action.
The complaint alleges that the Bernels’ termination of electrical service constitutes a nuisance in that they deprived appellants of the safe, healthy and comfortable use of the premises.
Nuisance liability arises where negligent conduct, i.e., conduct that violates a duty of care toward another, also interferes with another’s free use and enjoyment of his or her property. (Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 101.) Thus, underlying nuisance liability is the defendant’s commission of a tort.
As discussed above, appellants failed to allege any tort duty owed by the Bernels. Further, the alleged breach of contract does not support a tort action. Accordingly, appellants did not state a nuisance cause of action.
e. The intentional infliction of emotional distress cause of action.
Appellants allege the Bernels knowingly, intentionally, and willfully terminated appellants’ electrical connection with a reckless disregard of the probability of causing appellants emotional distress.
Intentional infliction of emotional distress is a tort. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 533.) Because the Bernels owed no duty of care to appellants with respect to sharing electricity and the alleged breach of contract does not support a tort action, appellants did not state a cause of action for intentional infliction of emotional distress.
4. The trial court did not abuse its discretion in awarding sanctions against appellants when it denied their motion to compel discovery.
Appellants moved to compel the Bernels to respond to their interrogatories and request for production of documents. The trial court denied the motion on the ground that appellants did not prove that they served the Bernels with the discovery requests. The court noted that appellants had not attached proofs of service as exhibits to their motion. The court further found that the Bernels provided credible evidence of past repeated occurrences of appellants failing to serve documents and pleadings on them and that this evidence supported the Bernels’ contention that they never received the discovery requests. The court then imposed $900 in sanctions against appellants finding appellants did not act “‘with substantial justification.’”
Appellants contend the trial court misapplied Code of Civil Procedure section 1013, subdivision (b) regarding proof of service by mail because a “formal” proof of service is not required. However, appellants have misconstrued the trial court’s ruling. The trial court simply determined that appellants did not meet their burden to prove they served the discovery requests on the Bernels. Although appellants argue the trial court made a legal error, they merely disagree with the trial court’s factual finding that the mailing did not occur. Evidence in the record supports the trial court’s finding and thus we will not disturb it on appeal. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 430.)
Because appellants lost their motion to compel responses to discovery, the trial court was required to impose sanctions against them unless it found that appellants acted “with substantial justification or that other circumstances make the imposition of the sanctions unjust.” (Code Civ. Proc., §§ 2030.290, subd. (c), 2031.300, subd. (c).) The court concluded appellants did not act with substantial justification since they did not serve the discovery they sought to compel. Further, the Bernels presented credible evidence of appellants’ repeated failures to serve documents and pleadings on them.
Under these circumstances, the trial court’s imposition of sanctions did not exceed the bounds of reason. (Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 231.) It was not arbitrary, capricious, or whimsical. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) Accordingly, the court did not abuse its broad discretion to impose discovery sanctions.
5. Appellants’ request for judicial notice.
Appellants have requested this court to take judicial notice of certain testimony and exhibits from the unlawful detainer trial to establish the truth of the factual assertions.
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.)
Appellants’ judicial notice request 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.


LEVY, Acting P.J.
WE CONCUR:



DETJEN, J.



FRANSON, J.