IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
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PERSONA , Plaintiff, v. PERSONA Defendant. |
Case No.:______ Judge: PERSONA Next Event: Initial Hearing January 28, 2022 |
PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
COMES NOW, Plaintiff PERSONA , pro se, moves to dismiss Defendant’s Motion to Dismiss Plaintiff’s Complaint in the instant case and in support thereof, states as follows:
Plaintiff is a stock-holder and member of the Defendant’s Corporation. On or about November 1, 2018, Plaintiff entered an Occupancy Agreement with the Defendant. (See the Occupancy Agreement).
However, after Plaintiff began living at the property of address __________________ the property started developing problems. Notably, the ceiling was moist, water leaked from the bathroom vent (when it rained, water leaked through the ceiling above the toilet and dripped on the floor and bathroom), black water stains appeared to be leaking from the bathroom ceiling; there were animal sounds and movements in the ceiling, and there was foul odor. (See Photos of the condition of the Property ). (See Letter ofPlaintiff’s mother). There were also cracks on the ceiling. Further, the Plaintiff’s children had been exposed to bugs that bit them, as a result of the condition of the house. For instance, on or about July 6, 2020, the Plaintiff’s daughter was bitten by the bugs and developed an allergic reaction. She had to be taken to the ER. (See Plaintiff’s Email to Defendants- July 6, 2020). The bugs caused further harm and/or damage on Plaintiff’s clothes and furniture. It is also worth noting that the smoke detectors at the premises were not functional, which further predisposed the Plaintiff and her family to life hazards and/or risks. (See Plaintiff’s Email to Defendants- May 24, 2021). It is also worth noting that the area around the property is also prone to incidences of insecurity. For instance, Plaintiff’s car bears gunshot damage. (See Photo showing the damage on Plaintiff’s car).
Plaintiff had earlier notified the Property Manager, but the aforesaid issues remained not addressed. For instance, Plaintiff repeatedly made requests for an exterminator to deal with the bugs. However, Defendant failed to the Plaintiff’ request. Further, when Plaintiff requested for a copy of the Defendant’s By-laws that were missing from the ones she was given when she moved in, but the officers of the Defendant failed to grant Plaintiff the By-laws.
On or about October 29, 2021, Plaintiff filed a Complaint against the Defendant alleging that the Defendant failed to maintain common areas of the premises. (See Plaintiff’s Complaint). Accordingly, Plaintiff alleged losses and/or harm suffered including water damage. Further, as a result of Defendant’s actions and/or inactions, the value of Plaintiff’s property declined, to Plaintiff’s detriment. In that regard, Plaintiff alleged the following causes of action: breach of contract, breach of fiduciary duty, negligence, breach of quiet enjoyment, constructive eviction, breach of implied warranty of habitability, intentional infliction of emotional distress, and negligent infliction of emotion distress.
On or about December 20, 2021, Defendant wrote Plaintiff seeking Plaintiff’s position regarding the relief Defendant intended to request in the Motion to Dismiss. Plaintiff denied the relief and indicated that she would oppose the said Motion.
On or about December 28, 2021, Defendant filed a Motion to Dismiss the Plaintiff’s Complaint. (See Defendant’s Motion to Dismiss Plaintiff’s Complaint).
Plaintiff hereby files this Opposition to the said Motion.
ARGUMENTS
- STANDARD OF REVIEW
The standard applicable to motions pursuant to Super. Ct. Civ. R. 12(b)(6) to dismiss a complaint for failure to state a claim upon which relief may be granted was correctly articulated by the trial judge in her order granting the motion: In deciding a motion to dismiss, the [c]ourt accepts as true all allegations in the Complaint and views them in a light most favorable to the nonmoving party. Owens v. Tiber Island Condominium Ass’n, 373 A.2d 890 (D.C. 1977). Dismissal is impermissible unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim, which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 41-45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Abdullah v. Roach, 668 A.2d 801 (D.C. 1995).
Further, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Potomac Dev. Corp. v. District of Columbia, 28 A.3d 531, 544 (D.C.2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
- RESPONSE TO DEFENDANT’S SPECIFIC ALLEGATIONS
- Breach of Contract
Defendant alleges that Plaintiff failed to state a valid claim for breach of contract. (See Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss, pp. 4-5). Specifically, Defendant contends that Plaintiff failed to cite specific sections of the Agreement that Defendant breached. Further, Defendant alleges that the Agreement contains no provision or duties regarding “common areas”.
“The elements of a breach of express warranty, or contract, claim are: ‘(1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by breach.’” Wetzel v. Capital City Real Estate, LLC, 73 A.3d 1000, 1005 (D.C. 2013)
In the instant action, Plaintiff avers that contrary to Defendant’s assertions, she has proven all elements of the breach of contract in her Complaint. It is evident that there was a contract entered between the parties. This contract created obligations for the Defendant. For instance, under Article 9 of the Agreement entered between Plaintiff and Defendant, Defendant stated that it will “provide necessary management, operation, and administration of the project”. (See the Occupancy Agreement). Defendant breached the said obligation(s) by failing to repair the leakages on Plaintiff’s ceiling. Defendant also failed to address the issue of bugs and/or rodents on Plaintiff’s ceiling. These are examples of how the Defendant breached its duty. As a result of the Defendant’s inaction, Plaintiff suffered damage(s). For instance, there was extensive damages on Plaintiff’s clothes and furniture. Besides, Plaintiff had to withstand water leaking from her ceiling, foul odor from the property, and itchy scalp from the bugs that dropped on Plaintiff’s hair (and that of her children).
- Breach of Fiduciary Duty
Defendant alleges that Plaintiff has not provided any factual basis to show that the Defendant has a duty to maintain any common areas. (See Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss, pp. 6-7).
“The elements of an action for professional negligence are the same as those of an ordinary negligence action. The plaintiff bears the burden of presenting evidence which establishes the applicable standard of care, demonstrates that this standard has been violated, and develops a causal relationship between the violation and the harm complained of.” Battle v. Thornton, 646 A.2d 315, 319 (D.C. 1994) (citing O’Neil v. Bergan, 452 A.2d 337, 341 (D.C. 1982)). “To make a legally cognizable claim of breach of fiduciary duty under District of Columbia law, a plaintiff must allege facts sufficient to show (1) the existence of a fiduciary relationship; (2) a breach of the duties associated with the fiduciary relationship; and (3) injuries that were proximately caused by the breach of the fiduciary duties.” Millennium Square Residential Ass’n v. 2200 M St. LLC, 952 F. Supp. 2d 234, 248 (D.D.C. 2013). “District of Columbia law has deliberately left the definition of ‘fiduciary relationship’ flexible, so that the relationship may change to fit new circumstances in which a special relationship of trust may properly be implied.” Id. (citing Teltschik v. Williams & Jensen, PLLC, 683 F. Supp. 2d 33, 46 (D.D.C. 2010)). Thus, to survive a motion to dismiss on both professional negligence and breach of fiduciary duty claims, plaintiff must allege a duty of care, breach, proximate causation, and damages.
In the instant action, Plaintiff alleges that Defendant owed a duty of special care to Plaintiff. The mission statement of the Defendant raises several obligations of the Defendant. Notably, the mission statement provides thus: “to maintain buildings and property that are safe, secure, accessible, and affordable; to upgrade when necessary the existing units, buildings/building systems, grounds and appliances.” (See Defendant’s Mission, Vision, and Value Statement, p.1). The mission also provides that the Defendant shall “improve the quality of the business operation”. Id. Further, the Defendant commits itself to “respond to concerns of staff and members and deal with them in a reasonable time frame”. Id. Accordingly, Plaintiff observes that the Defendant breached the said duty as already alleged hereinabove. Notably, Defendant failed and/or delayed to repair the leakages on Plaintiff’s ceiling. Defendant also failed to address the issue of bugs and/or rodents on Plaintiff’s ceiling. These are examples of how the Defendant breached its duty. As a result of the Defendant’s inaction, Plaintiff suffered damage(s). For instance, there was an extensive damage on Plaintiff’s clothes and furniture. Besides, Plaintiff had to withstand water leaking from her ceiling, foul odor from the property, and itchy scalp from the bugs that dropped on Plaintiff’s hair (and that of her children).
- Negligence
Defendant alleges that Plaintiff failed to state a claim that Defendant acted negligently. (See Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss, pp. 7-8). Specifically, Defendant alleges that Plaintiff has not shown how Defendant breached the duty of care. Defendant further alleged that the Plaintiff’s negligence claim is similar to the breach of fiduciary duty claim, and that it should be dismissed in that regard.
To prove negligence, Plaintiffs must show three elements: (1) “a duty of care owed by the defendant to the plaintiff,” (2) “a breach of that duty by the defendant,” and (3) “damage to the interests of the plaintiff, proximately caused by the breach.” District of Columbia v. Cooper, 483 A.2d 317, 321 (D.C.1984); Pannell v. District of Columbia, 829 A.2d 474, 479 (D.C.2003).
As already pointed out hereinabove, the mission statement of the Defendant raises several obligations of the Defendant. Notably, the mission statement provides thus: “to maintain buildings and property that are safe, secure, accessible, and affordable; to upgrade when necessary the existing units, buildings/building systems, grounds and appliances.” (See Defendant’s Mission, Vision, and Value Statement, p.1). The mission also provides that the Defendant shall “improve the quality of the business operation”. Id. Further, the Defendant commits itself to “respond to concerns of staff and members and deal with them in a reasonable time frame”. Id.
The Defendant’s vision statement also states thus: “we believe that all members should be treated with respect”. (See Defendant’s Mission, Vision, and Value Statement, p.1). Defendant further states the following in their vision statement “we will exercise honesty and integrity in all relationships with members, employees and community.” Id. Interestingly, the value statement proceeds to state “we believe that a healthy environment is crucial to sustaining the quality of our lives and community.” Id.
Defendant breached the said obligation(s) by failing to repair the leakages on Plaintiff’s ceiling. Defendant also failed to address the issue of bugs and/or rodents on Plaintiff’s ceiling. These are examples of how the Defendant breached its duty. As a result of the Defendant’s inaction, Plaintiff suffered damage(s). For instance, there was extensive damages on Plaintiff’s clothes and furniture. Besides, Plaintiff had to withstand water leaking from her ceiling, foul odor from the property, and itchy scalp from the bugs that dropped on Plaintiff’s hair (and that of her children).
- Breach of Quiet Enjoyment
Defendant alleges that failed to state a claim to support a finding of breach of quiet enjoyment because Plaintiff continues to stay in the same property. (See Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss, pp. 8-9). Defendant further alleges that there was no eviction or disturbance that justify Plaintiff’s claim.
Under DC law, a disturbance of quiet enjoyment is sufficient ground for the claim of a breach of quiet enjoyment. See Hyde v. Brandler, 118 A.2d 398, 400 (D.C. 1955).
In the instant action, Plaintiff points out that under Article 6 of the Occupation Agreement, the Defendant committed to ensure the Plaintiff has peaceful possession of the property. The Defendant disturbed Plaintiff’s quiet enjoyment of the property by failing to address the issues in Plaintiff’s property. Plaintiff had complained that the ceiling was moist, water leaked from the bathroom vent (when it rained, water leaked through the ceiling above the toilet and dripped on the floor and bathroom), black water stains appeared to be leaking from the bathroom ceiling; there were animal sounds and movements in the ceiling, and there was foul odor. Accordingly, as a result of the condition of the house, the Plaintiff’s children had been exposed to bugs that bit them, as a result of the condition of the house. The bugs caused further harm and/or damage on Plaintiff’s clothes and furniture. This, Plaintiff avers, amounts to a breach of quiet enjoyment.
- Constructive Eviction
Defendant alleges that failed to state a claim that she was constructively evicted from the property. (See Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss, pp. 9-11). Specifically, Defendant alleges that the acts alleged by Plaintiff did not deprive Plaintiff of the enjoyment of the property.
An actual eviction is, traditionally, some physical disturbance in a tenant’s possession by the landlord. See, A. Cunningham, W. Stoebuck D. Whitman, The Law of Property 296 (1984)); see also Hyde v. Brandler, 118 A.2d 398, 400 (D.C. 1955) (stating that covenant of quiet enjoyment is “not broken unless there is an eviction from, or some actual disturbance in, the possession by the landlord”) (emphasis added). “Constructive eviction, like actual eviction, is a violation of the covenant of quiet enjoyment implied in leases.” Weisman v. Middleton, 390 A.2d 996, 1001 (D.C. 1978).
Plaintiff avers that there was physical disturbance on the premises, which is necessary to prove constructive eviction. This situation affected Plaintiff’s enjoyment of possession. Notably, Defendant failed to address the issues in Plaintiff’s property. Plaintiff had complained that the ceiling was moist, water leaked from the bathroom vent (when it rained, water leaked through the ceiling above the toilet and dripped on the floor and bathroom), black water stains appeared to be leaking from the bathroom ceiling; there were animal sounds and movements in the ceiling, and there was foul odor. Accordingly, as a result of the condition of the house, the Plaintiff’s children had been exposed to bugs that bit them, as a result of the condition of the house. The bugs caused further harm and/or damage on Plaintiff’s clothes and furniture. This, Plaintiff avers, amounts to constructive eviction.
- Breach of Warranty of Habitability
Defendant alleges that it is not subject to the warrant of habitability. (See Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss, pp. 11-13). Defendant further alleges that it is a housing cooperative, not a landlord, and is therefore not subject to the DC Housing Regulations.
The warranty of habitability is implied in leases, and, as is true of most modern warranties, a claim for a breach is essentially a contract cause of action. See Berman v. Watergate West, Inc., 391 A.2d 1351, 1355 (D.C. 1978).
In the instant action, the Defendant’s “Second Northwest New Member’s Orientation Information Material” provides expressly that “the individual is both a tenant because of their lease with the corporation, and an owner because of their stock ownership and participation in group governance.” (See Second Northwest New Member’s Orientation Information Material- Exhibit B). Further, the Defendant’s Handbook provides expressly that the Occupancy Agreement is “similar to a rental lease.” (See Cooperative Handbook, p. 9).
Further, Article VIII of the Defendant’s By-Laws provides that the Defendant is subject to the rights, powers, and privileges of HUD. (See By–Laws Second Northwest Cooperative Homes Association). Further, under Section 8 of Article XI, the Defendant committed itself to monitor the services it offers by the Professional Management Agent of the housing development. Id.
It follows, Defendant is subject to a warrant of habitability claim, by virtue of its By-laws and company’s documentations that identify it both as a landlord and a housing cooperative.
- Intentional Infliction of Emotional Distress
Defendant alleges that the Plaintiff fails to provide facts to show that the Defendant’s conduct amounted to an intentional infliction of emotional distress. (See Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss, pp. 13-14).
“ ‘To succeed on the claim of intentional infliction of emotional distress, a plaintiff must show (1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff severe emotional distress.’ ” District of Columbia v. Tulin, 994 A.2d 788, 800 (D.C.2010) (quoting Minch v. District of Columbia, 952 A.2d 929, 940 (D.C.2008)). “Extreme and outrageous” conduct is that conduct which is beyond all possible bounds of decency. See Bernstein v. Fernandez, 649 A.2d 1064, 1075 (D.C. 1991) (quoting Restatement (Second) of Torts § 46, comment d.).
In the instant action, Plaintiff avers that the Defendant’s failure to attend to the issues at Plaintiff’s property is conduct that is beyond all possible bounds of decency. Specifically, Defendant had been obliged to maintain buildings and property that are safe, secure, accessible, and affordable; to upgrade when necessary the existing units, buildings/building systems, grounds and appliances.” (See Defendant’s Mission, Vision, and Value Statement, p.1). Further, the Defendant was expected to provide quiet enjoyment of the Plaintiff’s property. However, Defendant intentionally refused and/or delayed from addressing Plaintiff’s genuine and life threatening issues, thus leading to Plaintiff’s injuries and/or harm.
- Negligent infliction of emotional distress
Defendant alleges that Defendant’s relationship with Plaintiff is not of a nature that creates an obligation to care for Plaintiff’s emotional well-being. (See Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss, pp. 15-16). Defendant further claimed that it cannot reasonably be held responsible for the emotional well-being of the Plaintiff.
To establish a prima facie case of negligent infliction of emotional distress, plaintiff must show that he was “in the zone of physical danger” created by defendants’ conduct and was caused “to fear for his or her own well-being.” Williams v. Baker, 572 A.2d 1062, 1067 (D.C. 1990). The plaintiff must also show that the emotional distress is “serious and verifiable.” Jones v. Howard Univ., 589 A.2d 419, 424 (D.C. 1991).
In the instant action, Plaintiff faced physical danger, threat, risk and/or harm as a result of Defendant’s failure to address the issues in Plaintiff’s property. For example, Plaintiff’s children were bitten by bugs. Her daughter had developed an allergic reaction in that regard, and had to be rushed to the ER. Further, the mold and odor from the leaking ceiling posed health risks to Plaintiff and her family. Also, the malfunctioning smoke detecting apparatus posed serious threat of fire to Plaintiff’s house. Accordingly, Plaintiff avers that there is sufficient proof of the claim of negligent infliction of emotional distress.
Defendant alleges that Plaintiff’s Complaint does not contain facts sufficient to find that Defendant’s actions have a “degree of permanence” so that they give rise to a finding that a private nuisance exists. (See Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss, pp. 16-17).
To be actionable as a nuisance, the offending thing must be marked by “some degree of permanence” such that the “continuousness or recurrence of the things, facts, or acts which constitute the nuisance,” give rise to an “unreasonable use.” Reese v. Wells, 73 A.2d 902 (D.C. 1950).
In the instant action, the leaking of the ceiling, the mold, the bugs, the odor, the malfunctioning smoke detector had some degree of permanence. The said issues were recurring in the Plaintiff’s premises. Accordingly, Plaintiff is entitled to bring a claim for private nuisance.
CONCLUSION
WHEREFORE, Plaintiff, PERSONA , prays that this Honorable Court enter an appropriate Order dismissing Defendant’s Motion to Dismiss Plaintiff’s Complaint. Plaintiff also prays this Honorable Court grants any other relief that the Court deems just.
Respectfully submitted,
DATED: __________
CERTIFICATE OF MAILING
Defendant affirms that a copy of the above was served upon the Defendant to this action by electronic and/or U.S. mail to her respective address as stated below:
[ENTER ADDRESS]
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