This case was last updated from Los Angeles County Superior Courts on 10/02/2021 at 17:23:40 (UTC).

ALEXANDRA ARHANGELSKAYA VS BABU-KHAN ENTERPRISES, INC, ET AL.

Case Summary

On 08/10/2020 ALEXANDRA ARHANGELSKAYA filed a Property - Other Real Property lawsuit against BABU-KHAN ENTERPRISES, INC. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******6648

  • Filing Date:

    08/10/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

ARHANGELSKAYA ALEXANDRA

Defendants

1217 N. MCCADDEN PLACE LLC

BABU-KHAN ENTERPRISES INC

ABM

AAPM INC. DBA ABM

BABU-KHAN CALLIOPE

BABU-KHAN NASREEN

Attorney/Law Firm Details

Plaintiff Attorney

KESTNER DAVID

Defendant Attorney

ABRAMSON MICHAEL A.

 

Court Documents

Answer - Answer

6/28/2021: Answer - Answer

Amended Complaint - Amended Complaint (2nd)

5/25/2021: Amended Complaint - Amended Complaint (2nd)

Notice of Ruling - Notice of Ruling

5/3/2021: Notice of Ruling - Notice of Ruling

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

5/3/2021: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Request for Judicial Notice - Request for Judicial Notice

4/6/2021: Request for Judicial Notice - Request for Judicial Notice

Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

4/6/2021: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Opposition (name extension) - Opposition TO DEFENDANTS DEMURRER

12/30/2020: Opposition (name extension) - Opposition TO DEFENDANTS DEMURRER

Reply (name extension) - Reply IN SUPPORT OF DEMURRER TO PLAINTIFFS COMPLAINT

1/6/2021: Reply (name extension) - Reply IN SUPPORT OF DEMURRER TO PLAINTIFFS COMPLAINT

Notice (name extension) - Notice OF CONTINUANCE OF HEARING ON DEFENDANTS DEMURRER AND MOTION TO STRIKE

1/14/2021: Notice (name extension) - Notice OF CONTINUANCE OF HEARING ON DEFENDANTS DEMURRER AND MOTION TO STRIKE

Motion to Strike (not initial pleading) - Motion to Strike (not initial pleading)

9/14/2020: Motion to Strike (not initial pleading) - Motion to Strike (not initial pleading)

Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

9/14/2020: Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

Request for Judicial Notice - Request for Judicial Notice

9/14/2020: Request for Judicial Notice - Request for Judicial Notice

Notice and Acknowledgment of Receipt - Notice and Acknowledgment of Receipt

8/14/2020: Notice and Acknowledgment of Receipt - Notice and Acknowledgment of Receipt

Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court)

8/10/2020: Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court)

Summons - Summons on Complaint

8/10/2020: Summons - Summons on Complaint

Civil Case Cover Sheet - Civil Case Cover Sheet

8/10/2020: Civil Case Cover Sheet - Civil Case Cover Sheet

First Amended Standing Order - First Amended Standing Order

8/10/2020: First Amended Standing Order - First Amended Standing Order

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

8/10/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

16 More Documents Available

 

Docket Entries

  • 08/14/2023
  • Hearing08/14/2023 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 02/07/2022
  • Hearing02/07/2022 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 06/28/2021
  • DocketAnswer; Filed by: BABU-KHAN ENTERPRISES, INC (Defendant); Calliope Babu-Khan (Defendant); 1217 N. McCadden Place, LLC (Defendant); Nasreen Babu-Khan (Defendant); AAPM, Inc. (Defendant); As to: ALEXANDRA ARHANGELSKAYA (Plaintiff)

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  • 05/25/2021
  • DocketAmended Complaint (2nd); Filed by: ALEXANDRA ARHANGELSKAYA (Plaintiff); As to: BABU-KHAN ENTERPRISES, INC (Defendant); ABM (Defendant)

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  • 05/03/2021
  • DocketNotice of Ruling; Filed by: BABU-KHAN ENTERPRISES, INC (Defendant); ABM (Defendant)

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  • 05/03/2021
  • DocketMinute Order (Hearing on Demurrer - without Motion to Strike)

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  • 05/03/2021
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 05/03/2021 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 05/03/2021; Result Type to Held

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  • 04/26/2021
  • DocketReply IN SUPPORT OF DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT; Filed by: BABU-KHAN ENTERPRISES, INC (Defendant); ABM (Defendant)

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  • 04/14/2021
  • DocketOpposition defendants demurrer; Filed by: ALEXANDRA ARHANGELSKAYA (Plaintiff)

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  • 04/07/2021
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 05/03/2021 at 10:30 AM in Spring Street Courthouse at Department 25

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20 More Docket Entries
  • 08/10/2020
  • DocketComplaint; Filed by: ALEXANDRA ARHANGELSKAYA (Plaintiff); As to: BABU-KHAN ENTERPRISES, INC (Defendant); 1217 N. MCCADDEN PLACE, LLC (Defendant)

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  • 08/10/2020
  • DocketCase assigned to Hon. James E. Blancarte in Department 25 Spring Street Courthouse

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  • 08/10/2020
  • DocketSummons on Complaint; Issued and Filed by: ALEXANDRA ARHANGELSKAYA (Plaintiff); As to: BABU-KHAN ENTERPRISES, INC (Defendant); 1217 N. MCCADDEN PLACE, LLC (Defendant)

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  • 08/10/2020
  • DocketCivil Case Cover Sheet; Filed by: ALEXANDRA ARHANGELSKAYA (Plaintiff); As to: BABU-KHAN ENTERPRISES, INC (Defendant); 1217 N. MCCADDEN PLACE, LLC (Defendant)

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  • 08/10/2020
  • DocketRequest to Waive Court Fees; Filed by: ALEXANDRA ARHANGELSKAYA (Plaintiff)

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  • 08/10/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 08/10/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 08/10/2020
  • DocketOrder on Court Fee Waiver (Superior Court); Signed and Filed by: Clerk; As to: ALEXANDRA ARHANGELSKAYA (Plaintiff)

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  • 08/10/2020
  • DocketNon-Jury Trial scheduled for 02/07/2022 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 08/10/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 08/14/2023 at 08:30 AM in Spring Street Courthouse at Department 25

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Tentative Rulings

Case Number: 20STLC06648     Hearing Date: May 3, 2021    Dept: 25

PROCEEDINGS: DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

MOVING PARTY: Defendants Babu-Khan Enterprises, Inc. and1217 N. McCadden Place, LLC

RESP. PARTY: Plaintiff Alexandra Arhangelskaya

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendants Babu-Khan Enterprises, Inc. and 1217 N. McCadden Place, LLC’s Demurrer is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND AS TO THE FIRST, SECOND, AND THIRD CAUSES OF ACTION.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on April 14, 2021 [ ] Late [ ] None

REPLY: Filed on April 26, 2021 [ ] Late [ ] None

ANALYSIS:

.

I. Background

On August 10, 2020, Plaintiff Alexandra Arhangelskaya (“Plaintiff”) filed a complaint alleging negligent maintenance, nuisance, breach of the warranty of habitability, and conversion against Defendants Babu-Khan Enterprises, Inc. (“Babu-Khan”) and 1217 N. McCadden Place, LLC (“1217 N. McCadden”).

Defendants filed a demurrer to Plaintiff’s Complaint with a motion to strike on September 14, 2020. On February 24, 2021, the Court found that Defendants failed to meet and confer and ordered them to do so before a ruling on the demurrer would be issued. (2/24/21 Minute Order.)

Plaintiff filed a First Amended Complaint (the “FAC”) on March 12, 2021 alleging the same causes of action against Defendants Babu-Khan, 1217 N. McCadden (collectively, “Moving Defendants”), Nasreen Babu-Khan (“Nasreen”) individually and as trustee of an unidentified trust or trusts, and Calliope Babu-Khan (“Calliope”) individually and as trustee of an unidentified trust or trusts. On March 24, 2021, Plaintiff filed an amendment to the FAC substituting ABM, an unknown entity (“ABM”) for Doe 1.

Moving Defendants filed the instant Demurrer to Plaintiff’s First Amended Complaint (the “Demurer”) on April 6. Plaintiff filed an opposition on April 14 and Moving Defendants filed a reply brief on April 26.

II. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

III. Request for Judicial Notice

Moving Defendants’ request for judicial notice of a Grant Deed dated October 31, 2018 for property known as 1217 North McCadden Place, Los Angeles, CA 90038 is GRANTED. (Evid. Code, § 452, subd. (c); Poseidon Development, Inc. v. Woodland Lane Estates (2007) 152 Cal.App.4th 1106, 1117.)

IV. Discussion

The Demurrer is accompanied by a meet and confer declaration as required Code of Civil Procedure section 430.41, subdivision (a). (Dem., Abramson Decl., ¶¶ 6-7.)

The Demurrer includes arguments regarding the failure to state facts against Defendants Nasreen, Calliope, and ABM, but they are not parties to the instant Demurrer. Thus, because Moving Defendants do not have standing to bring this Motion on their behalf, the Court declines to address those arguments.

A. Negligent Maintenance

The elements of a negligence cause of action are duty, breach of that duty, proximate cause, and damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) Civil Code section 1714 provides that everyone is responsible for an injury caused to another by his want of ordinary care or skill in managing his or her property. (Johnson v. Prasad (2014) 224 Cal.App.4th 74, 79.) “Thus, [g]enerally, a landowner has a duty to maintain the land in a reasonably safe condition. [Citation.]” (Id.)

Plaintiff alleges, in pertinent part, the following: (1) that on February 1, 2017, Plaintiff entered into a lease agreement with Defendants for rental of the subject property located at 1217 N. McCadden Pl., Unit #11 (the “Unit”), Los Angeles, CA 90038 (the “Subject Property”); (2) that during her residence, Plaintiff reported a number of problems with the Unit including water leaks causing flooding in the kitchen and living room, mold growth, and the separation of dry wall; (3) that the Subject Property has a bug infestation; (4) that “[t]he floor in the apartment, in some spots, is over a 100 degree[s] Fahrenheit”; (5) that the fencing surrounding the Subject Property is not secure, resulting in non-residents and homeless persons “hang[ing] out” in the laundry room; (6) that Plaintiff gave notice to Defendants regarding the issues noted above; (7) that Defendants did not correct the conditions complained of; (8) that Defendants responded to some issues, but made unworkmanlike repairs, including using tape to repair a broken drawer; (9) as a result of Defendants’ conduct, Plaintiff suffered illness, mental and emotional distress, depression, anxiety, annoyance, discomfort, fear for safety, loss in the value of her leasehold, property damage, and lost income; and (10) that despite the maintenance issues noted above, Defendants continue to demand full rent. (FAC, ¶¶ 1, 14, 18-32.) Plaintiff does not attach a copy of the lease agreement alleging it has been misplaced. (Id. at ¶ 14.)

As to Defendant 1217 N. McCadden, which is alleged to be the owner of the Subject Property, the allegations above are sufficient.

1. Owner, Agency, Alter Ego, and Conspiracy Allegations

Plaintiff alleges (1) that Defendant Babu Khan was, at all times, the manager at the Subject Property; (2) that Defendant Nasreen was the trustee of several trusts that owned the Subject Property; (3) that Defendant Calliope was the trustee of several trusts that owned the Subject Property; (4) that each Defendant acted as the others’ agent, servant, employee, subsidiary joint venturer, affiliate, partner, assignee, successor-in-interest, alter ego, or other representative, and acting within the scope of their agency, servitude, employment, subsidy, joint venture, affiliation, partnership, assignment, succession, and/or representation with full knowledge, consent, permission, authorization, and ratification of the other Defendants; and (5) that the Defendants conspired with each other. (FAC, ¶¶ 9-11.)

Plaintiff does not sufficiently plead alter ego. In Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 235-36, the court held that the following alter ego allegations were sufficient to survive a demurrer: that the individual defendant dominated and controlled the entity defendant; that a unity of interest and ownership existed between the individual defendant and entity defendant; that the entity defendant was a mere shell and conduit for the individual defendant’s affairs; that the entity defendant was inadequately capitalized; that the entity defendant failed to abide by corporate formalities; that the individual defendant used the entity defendant’s assets as her own; and that recognizing the separate existence of the entity defendant would promote injustice. Plaintiff’s FAC includes no such allegations.

Regarding agency liability, “[g]enerally, an allegation of agency is an allegation of ultimate fact and is, of itself, sufficient to withstand a general demurrer. [Citation.]” (Garton v. Title Insurance & Trust Co. (1980) 106 Cal.App.3d 365, 376.) In Garton, the court found that the plaintiffs’ allegations that “each of the defendants were the agents and employees and of each other and were acting in the course and scope of their agency, employment, and authority and with the permission and consent of their codefendants in committing the acts alleged” was sufficient to withstand a demurrer. (Id.) Plaintiff’s agency allegations are essentially the same. However, additional allegations are required in the context of a landlord/managing agent relationship

Although neither party discussed it, a rental managing agent may be liable for the owner. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 929-30.) In Stoiber, the court analyzed the following six factors to determine whether rental agents owed a duty of ordinary care to the tenants: (1) the extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of harm to the plaintiff, (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the connection between the defendant's conduct and the injury suffered, (5) the moral blame attached to the defendant's conduct and (6) the policy of preventing future harm. [Citation.]” (Id. at p. 931.) In finding that the plaintiff alleged sufficient facts to find a landlord’s rental agent owed the tenant a duty of ordinary care, the court reasoned,

“rental agents owed a duty of ordinary care towards the tenant because the transaction between the rental agent and the landowner was clearly intended to affect the tenants, and because harm would be foreseeable to the tenants if the rental agent did not properly perform his duty. When the owner is located at some distance from the rental property as in the present case (Connecticut), the tenant's only practical recourse is to complain to the rental agent. Imposition of a duty on the rental agent would as a matter of public policy encourage the agent to pass the complaints along to the owner or to take action to properly maintain the property, if this is part of his responsibilities as agreed with the owner.”

(Id. at pp. 930-31.)

Plaintiff has not alleged sufficient facts for the Court to determine whether Defendant Babu-Kahn may be held liable under this theory.

Finally, Plaintiff also alleges each Defendant conspired with the other. “There is no separate tort of civil conspiracy and no action for conspiracy to commit a tort unless the underlying tort is committed and damage results therefrom.” (Prakashpalan v. Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1137.) The elements of a civil conspiracy are “(1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct.” (Contreras v. Dowling (2014) 5 Cal.App.5th 394, 417.)

The FAC contains no allegations regarding the formation and operation of a conspiracy, the specific conduct committed in furtherance of a conspiracy, or what damages resulted from that specific conduct.

Thus, Plaintiff has not alleged sufficient facts demonstrating Defendant Babu-Khan may be held liable on an alter ego or agency theory of liability or that Defendants 1217 N. McCadden and Babu-Khan conspired with each other.

The Demurrer as to the first cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

B. Nuisance

A nuisance is defined as follows: “[a]nything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (Civ. Code, § 3479.)

Private “[n]uisance liability arises from violation of a duty to another that interferes with the free use and enjoyment of his or her property.” (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1373.) The elements of a private nuisance are: (1) “the plaintiff must prove an interference with his use and enjoyment of his property”; (2) “ ‘the invasion of the plaintiff’s interest in the use and enjoyment of the land [must be] substantial, i.e., that it cause[s] the plaintiff to suffer “substantial actual damage” ’ ”; and (3) “ ‘ “[t]he interference with the protected interest must not only be substantial, but it must also be unreasonable” [citation], i.e., it must be “of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.” ’ [Citation.]” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-63.) Tenants may sue their landlords for a nuisance. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 919.)

In addition to the allegations previously noted, Plaintiff alleges: (1) that the Subject Property was remodeled, requiring construction; (2) that as a result of the construction, tenants were no longer able to park on the Subject Property and that no secure parking was provided for tenants; (3) that as a result of the construction, “dust and mud is constant at the Subject Property”; (4) that the construction work “disrupts and interferes with [Plaintiff’s] enjoyment of her tenancy”; (5) that construction “is gone on for more than sixty days over scheduled”; (6) that the conditions noted were “injurious” to the health and safety of Plaintiff and substantially interfered with her quiet enjoyment of the Subject Property; (7) that Defendants failed to correct the allegedly defective conditions; (8) that Plaintiff was damaged in an amount equal to the rental payments due and paid during Plaintiff’s leasehold or in another amount to be proven at trial. (FAC, ¶¶ 19-20, 33-39.)

These allegations are insufficient. Plaintiff concludes that Defendants’ conduct substantially interfered with her right to quiet enjoyment of her Unit, but has not explained how. (Id., ¶ 34.) In addition, the alleged facts do not demonstrate the conduct was substantial and unreasonable or that Plaintiff suffered “substantial actual damage.”

To the extent Plaintiff argues Defendant Babu-Khan is a proper defendant on an agency or alter ego liability theory, additional allegations are needed.

Thus, the Demurrer as to the second cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

C. Third Cause of Action – Breach of Warranty of Habitability

A breach of the implied warranty of habitability may be asserted as a defense to an unlawful detainer action or may be brought as a claim against the landlord for damages. (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.) “The elements of such an affirmative claim are the existence of a material defective condition affecting the premises’ habitability, notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition, the landlord was given a reasonable time to correct the deficiency, and resulting damages. [Citation.]” (Id.)

“[U]nder contemporary conditions, public policy compels landlords to bear the primary responsibility for maintaining safe, clean and habitable housing in our state.” (Green v. Superior Court (1974) 10 Cal.3d 616, 627.) “This 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.” (Id. at pp. 637.) “ ‘[M]inor housing code violations standing alone which do not affect habitability must be considered de minimis and will not entitle the tenant to reduction in rent…’ [Citation.]” (Id. at p. 637-38.)

In addition to the allegation set forth above, Plaintiff alleges: (1) that Defendants caused the Subject Property to “become untenantable” under Civil Code sections 1941 and 1941.1. by “(a) failing to keep the building, grounds, and appurtenances clean, sanitary and free from debris, filth, rubbish and garbage (b) failing to provide adequate and appropriate garbage and rubbish receptacles; and (c) failing to maintain floors, stairways and railings in good repair; (d) failing to keep plumbing in the kitchen in good working condition; (e) failing to provide a working space heater; (f) by failing to fix water leaks from the outside to the inside of the apartment which caused cracks in the walls, mold”; (2) that the conditions existed and endangered the “life, limb, health, property, safety and/or welfare of the public and the Plaintiff”; and (3) that Plaintiff has been damaged in an amount equal to rents due and paid by her during her tenancy or an amount to be proven at trial. (FAC, ¶¶ 40-44.)

Plaintiff’s allegations are insufficient. Plaintiff does not allege when she gave notice of each of one of the allegedly defective conditions. She also has not alleged that Defendants were notified within a reasonable time of discovering the allegedly defective condition or given a reasonable amount of time to respond and address the condition(s).

Plaintiff argues that all agents may be held liable under this claim because a breach of the warranty of habitability may also be tortious. (Oppo., p. 7: 14-19.) In Stoiber, however, the Court made clear that while a landlord may be held liable on both a breach of warranty of habitability claim and a tort claim arising from the same action, an agent may not be held liable under an implied warranty of habitability theory. (Stoiber v. Honeychuck, supra, 101 Cal.App.3d 903 at p. 929.)

To the extent Plaintiff argues Defendant Babu-Khan may be held liable an alter ego theory, as discussed above, additional allegations are needed.

V. Conclusion & Order

For the foregoing reasons, Defendants Babu-Khan Enterprises, Inc. and 1217 N. McCadden Place, LLC’s Demurrer is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND AS TO THE FIRST, SECOND, AND THIRD CAUSES OF ACTION.

Moving parties are ordered to give notice.

Case Number: 20STLC06648    Hearing Date: February 24, 2021    Dept: 25


Case Number: 20STLC10358    Hearing Date: February 24, 2021    Dept: 25

HEARING DATE: Wed., February 24, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Chen v. Home Aid Remodeling, et al. COMPL. FILED: 12-11-20

CASE NUMBER: 20STLC10358 DISC. C/O: 05-11-22

NOTICE: OK DISC. MOT. C/O: 05-26-22

TRIAL DATE: 06-10-22

PROCEEDINGS: DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT

MOVING PARTY: Defendant Aid Home Remodeling, Inc.

RESP. PARTY: Plaintiff Yinjian Chen, in pro per

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant Aid Home Remodeling, Inc.’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on February 10, 2021 [ ] Late [X] None

REPLY: Filed on February 17, 2021 [ ] Late [ ] None

ANALYSIS:

  1. Background

On December 11, 2020, self-represented Plaintiff Yinjiang Chen (“Plaintiff”) filed an action for negligence against Defendants Aid Home Remodeling, Inc. (“Aid Home”) and SureTec Indemnity Company (“SureTec”). Plaintiff filed a First Amended Complaint (“FAC”) on December 23, 2020.

Defendant Aid Home filed the instant Demurrer to Plaintiff’s First Amended Complaint (the “Demurrer”) on January 27, 2021. Plaintiff filed a late Opposition on February 10, and Defendant Aid Home filed a Reply on February 17.

  1. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

  1. Discussion

The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41, subdivision (a).

Plaintiff alleges the following: (1) that Plaintiff and Defendant Aid Home entered into a contract to replace Plaintiff’s roof; (2) that Defendant Aid Home’s installation of the roof deviated from acceptable trade standards; (3) that Defendant Aid Home’s deficient installation caused leaking and damages to the inside of Plaintiff’s home; (6) that Plaintiff filed a small claims action against Defendant Aid Home on December 30, 2019; (4) that Defendant SureTec conducted an inspection of Plaintiff’s home on August 6, 2020; (7) that a trial on the small claims case took place on August 20, 2020; (8) that the court entered a judgment in favor of Defendant Aid Home in the small claims action, finding Defendant Aid Home did not owe Plaintiff any money; (9) that Plaintiff received Defendant SureTec’s report for the August 6 inspection on August 24, 2020; (5) that the SureTech inspector estimated the cost to repair the roof was $28,639.00; (10) that Defendant SureTec was not justified in denying a bond payment to Plaintiff or in requesting that Plaintiff first obtain a final judgment or an arbitration award against Defendant Aid Home. (FAC, Attach., pp. 1-2, Exhs. G, J, K.)

Defendant Aid Home demurs to the FAC on the basis that it is barred under the doctrine of res judicata. (Dem., p. 2:4-7.)

“ “‘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.” [Citation.] “A predictable doctrine of res judicata benefits both the parties and the courts because it ‘seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.” [Citation.]” (Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, 683.)

“A prior judgment is not res judicata on a subsequent action unless three elements are satisfied: ‘(1) the issues decided in the prior adjudication are identical with those presented in the later action; (2) there was a final judgment on the merits in the prior action; and (3) the party against whom the plea is raised was a party or was in privity with a party to the prior adjudication. [Citation.]” (Id. at p. 685-86.) The term “cause of action” refers to the invasion of a primary right, that is, injury to a person or property, and is based on the harm suffered, rather than the particular theory of recovery asserted by the plaintiff. (Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Insurance Co. (1993) 5 Cal.4th 854, 860.) Thus, “[t]o prevent piecemeal litigation, the doctrine of res judicata also applies to bar a second suit arising out of the same factual situation involving matters which were relevant and within the same scope of the first action, which thus could have been raised in the first suit. [Citation.]” (Duffy v. City of Long Beach (1988) 201 Cal.App.3d 1352, 1257-58.) (Italics in original.)

There is no question that this action involves the same parties as the small claims action or that there was a final judgment on the merits issued in the small claims action. (FAC, Attach., pp. 1-2, Exh G, J, K.) The parties’ main point of contention is whether the small claims action and the instant action involve the same issues.

Plaintiff includes with his FAC a copy of the small claims complaint and the transcript of the August 20, 2020 small claims non-jury trial. (FAC, Exh. G, J.) The small claims claim form states, in pertinent part:

“[Defendant Aid Home] cheated by using low quality GAF underlayment in substitution for the high-quality Owens Corning Deck Defense Waterproof underlayment per the roof replacement contract signed.

The roof installed by [Defendant Aid Home ] is not approved by La Canada city…because of defendant illegal and irresponsible activities, which caused massive water damages to the plaintiff’s property including the interior ceilings, walls, floors, and insulator as well as damages to exterior gutter, fence, wall and pool.

The roof installed by the defendant is illegal and defective, and needs to be replaced by another independent contractor.

The plaintiff demands $8,500 back from [Defendant Aid Home] to hire another independent contractor to replace the defective and illegal roof with the high-quality Owens Corning Deck Defense Waterproof underlayment and get the roof replacement approved by La Canada city.” (FAC, Exh. G.) (Emphasis added.)

At the small claims trial when the presiding judge, the Hon. Charles Lee, asked Plaintiff to explain what his case was about, Plaintiff stated not only that Defendant Aid Home used allegedly inferior materials to complete the roofing job, but also that the slope was incorrect, that Defendant Aid Home did not use enough underlayment materials, that Defendant Aid Home tore Plaintiff’s roof without a city permit, and that “there [were] too many flaw[s] in [Defendant Aid Home]’s replacement.” (Id., Exh. J, Transcript, pp. 3:16-4:13.) David Bitan, the former owner of Defendant Aid Home, stated that the $8,500.00 Plaintiff sought to recover was charged to Plaintiff’s credit card but then disputed by Plaintiff with his bank. (Id. at p. 6:27-7:7; pp. 8:10-10:15; pp. 10:28-11:26.) The dispute ultimately resulted in the charge being reversed by Plaintiff’s bank, depriving Defendant Aid Home of any payment. (Id.) Judge Lee asked Plaintiff, “Is it true that the $8500 you’re suing for today in your complaint, that you’ve already been given back?” (Id. at p. 7:25-27.) Plaintiff denied that the charge was reversed by his credit card company. (Id. at pp. 7:28-8:7.)

In Opposition, Plaintiff argues he discovered the true extent of the damages following his receipt of Defendant SureTec’s August 6, 2020 report on August 24, 2020, so the facts giving rise to the instant FAC were unknown when the small claims action was filed. (Oppo., pp 16:25-17:16.) The Court is not persuaded. Plaintiff is confusing knowledge of the facts with knowledge of the extent of the damages suffered. Both the small claims complaint and the small claims transcript attached to Plaintiff’s FAC demonstrate he believed Defendant Aid Home’s installation was defective when the small claims action was filed. Thus, Plaintiff was aware of the facts giving rise to the potential liability of Defendant Aid Home. Importantly, Plaintiff admits in his Opposition that he knew a second inspection of his property had taken place on August 6, 2020, but did not believe continuing the trial was necessary. (Oppo., p. 15:25-28.) That Plaintiff chose to proceed with the small claims trial without knowing the outcome of Defendant SureTec’s August 6, 2020 report does not take away from the fact Plaintiff was aware of the facts underlying this action, that is, Defendant Aid Home’s installation of an allegedly defective roof.

Plaintiff also argues res judicata is inapplicable because this action involves the failure to follow industry standards while the Small Claims Action involved a breach of contract. (Oppo., p. 14:8-18.) However, as noted above, a cause of action refers to the invasion of a primary right, i.e., the injury suffered, not the particular theory of recovery asserted by a plaintiff. (Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Insurance Co., supra, 5 Cal.4th at p. 860.) Here, Plaintiff’s alleged injury is damage to his property as a result of Defendant Aid Home’s failure to properly install a roof. Importantly, Plaintiff admits the Small Claims Action and the instant action arise out of the same issue, i.e., the defective roof. (Oppo., p. 15:19-20.)

The Court notes that Plaintiff is correct that res judicata does not bar subsequent litigation when the plaintiff is unaware of the relevant facts when filing a complaint. (Oppo., p. 10:3-8; Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155.) However, the court in Allied also noted that “ ‘[a] party cannot by negligence or design withhold issues and litigate them in [a] consecutive action’ ” and that “a claim should be barred if with diligence it could have been brought earlier.” (Id. at p. 156.) (Italics added.) As discussed above, Plaintiff’s FAC and Opposition demonstrate Plaintiff was aware of the facts giving rise to his injury, i.e., the allegedly defective roof. Plaintiff also made a conscious choice to proceed with the small claims action without waiting to receive Defendant SureTec’s August 6, 2020 inspection report to ascertain the extent of the damages Plaintiff allegedly suffered.

“[T]he claim preclusion aspect of the doctrine of res judicata applies to small claims judgments.” (Pitzen v. Superior Court (2004) 120 Cal.App.4th 1374, 1381.) In Pitzen, the Court held that small claims records that were sufficiently clear to enable courts to determine that a particular issue was litigated and decided against a plaintiff in small claims court would preclude subsequent actions. (Id. at p. 1388.)

Here, the Small Claims Action trial transcript demonstrates that Judge Lee considered (1) the parties arguments and exhibits regarding an $8,500.00 charge by Defendant to Plaintiff’s credit card that was disputed and allegedly reversed and (2) the parties’ arguments and exhibits regarding whether Defendant properly installed Plaintiff’s roof or whether Defendant’s work deviated from industry standards. (FAC, Exh. J, Trial Transcript.) The trial transcript demonstrates Judge Lee considered an inspection report provided by Plaintiff. (Id. at pp. 14:4-15:23.) The Court also considered Defendant Aid Home’s report from a third-party contractor through a bond company that stated the roof installed on Plaintiff’s property did not depart from industry standards. (Id. at pp. 16:8-27; p. 18:7-18.) Having considered the parties' arguments and documentary evidence, Judge Lee ordered a judgment entered on Plaintiff’s claim as follows: “[Defendant Aid Home] does not owe the [Plaintiff] any money on [P]laintiff’s claim.” (FAC, Exh. K.) Thus, the small claims action record demonstrates the issue of whether Defendant’s work deviated from industry standard was considered and ultimately rejected by the small claims court. (Id.)

As a final judgment on the merits was issued in the small claims action, which raised the same issues in this action, Plaintiff’s FAC is barred by the doctrine of res judicata.

Accordingly, Defendant Aid Home’s Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

  1. Conclusion & Order

For the foregoing reasons, Defendant Aid Home Remodeling, Inc.’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Moving party is ordered to give notice.

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