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This case was last updated from Los Angeles County Superior Courts on 07/02/2019 at 08:23:53 (UTC).

HILARY VON GERLACH VS. FRG PLAZA, LLC

Case Summary

On 10/06/2016 HILARY VON GERLACH filed a Contract - Other Contract lawsuit against FRG PLAZA, LLC. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judge overseeing this case is SHIRLEY K. WATKINS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4718

  • Filing Date:

    10/06/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Van Nuys Courthouse East

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

SHIRLEY K. WATKINS

 

Party Details

Plaintiff

GERLACH HILARY VON

Defendants

FRG RED III M LLC

4500 WOODMAN AVENUE

DEPARTMENT MANAGEMENT CONSULTANTS LLC

PLS CONSTRUCTION

DOES 1 THROUGH 50

FRG PLAZA LLC

RAINTREE PLAZA SHERMAN OAKS LLC

4500 WOODMAN AVENUE A BUSINESS ENTITY OF UNKNOWN ORGANIZATION

FRG RED III LLC A LIMITED LIABILITY COMPANY

RAINTREE PLAZA SHERMAN OAKS LLC A LIMITED LIABILITY COMPANY

PLS CONSTRUCTION A BUSINESS ENTITY OF UNKNOWN ORGANIZATION

APARTMENT MANAGEMENT CONSULTANTS LLC A LIMITED LIABILITY COMPANY

FRG PLAZA LLC A LIMITED LIABILITY COMPANY

Not Classified By Court

TEST PARTY FOR TRUST CONVERSION

Attorney/Law Firm Details

Plaintiff Attorney

LEE HENRY MIN

Defendant Attorneys

MACKEY ROBERT THOMAS

JEWETT BRADLEY ERIC

 

Court Documents

Notice of Case Management Conference

10/6/2016: Notice of Case Management Conference

Minute Order

10/20/2016: Minute Order

Proof of Service of Summons and Complaint

11/3/2016: Proof of Service of Summons and Complaint

Declaration re: Due Diligence

11/16/2016: Declaration re: Due Diligence

Declaration re: Due Diligence

11/16/2016: Declaration re: Due Diligence

Proof of Service of Summons and Complaint

11/16/2016: Proof of Service of Summons and Complaint

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

11/21/2016: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Legacy Document

12/19/2016: Legacy Document

Legacy Document

1/26/2017: Legacy Document

Legacy Document

2/1/2017: Legacy Document

Case Management Statement

2/8/2017: Case Management Statement

Proof of Service of Summons and Complaint

2/23/2017: Proof of Service of Summons and Complaint

Legacy Document

2/23/2017: Legacy Document

Unknown

3/1/2017: Unknown

Legacy Document

3/27/2017: Legacy Document

Minute Order

8/28/2017: Minute Order

Notice of Change of Address or Other Contact Information

7/26/2018: Notice of Change of Address or Other Contact Information

Declaration

3/19/2019: Declaration

58 More Documents Available

 

Docket Entries

  • 06/05/2019
  • at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Status Conference (of APPEAL OF DISMISSAL AFTER MOTION FOR JUDGMENT ON THE PLEADINGS) - Not Held - Continued - Court's Motion

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  • 04/11/2019
  • at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Order to Show Cause Re: (Sanctions Against Plaintiff's counsel in the amount of $500.00 Pursuant to Code of Civil Procedure Section 177.5 for failure to appear at the Status Conference on March 12, 2019) - Held

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  • 04/11/2019
  • Minute Order ( (Order to Show Cause Re: Sanctions Against Plaintiff's counsel...)); Filed by Clerk

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  • 03/19/2019
  • Declaration (Declaration of HML in Response to the Court's OSC Re: FTA at SC on March 12, 2019); Filed by Hilary Von Gerlach (Plaintiff)

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  • 03/12/2019
  • at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Status Conference - Held - Continued

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  • 03/12/2019
  • Minute Order ( (Status Conference)); Filed by Clerk

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  • 11/08/2018
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 09/27/2018
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice

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  • 09/27/2018
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 09/27/2018
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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82 More Docket Entries
  • 11/03/2016
  • Proof of Service by Mail; Filed by Hilary Von Gerlach (Plaintiff)

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  • 11/02/2016
  • Proof of Service of Summons and Complaint; Filed by Hilary Von Gerlach (Plaintiff)

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  • 10/31/2016
  • Objection; Filed by Hilary Von Gerlach (Plaintiff)

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  • 10/20/2016
  • at 08:30 AM in Department T; Non-Appearance Case Review (Non-Appearance (Case Review); OSC-Set) -

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  • 10/20/2016
  • Minute order entered: 2016-10-20 00:00:00; Filed by Clerk

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  • 10/17/2016
  • Affidavit-Prejudice-Peremptory; Filed by Hilary Von Gerlach (Plaintiff)

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  • 10/06/2016
  • Civil Case Cover Sheet; Filed by Hilary Von Gerlach (Plaintiff)

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  • 10/06/2016
  • Complaint; Filed by Hilary Von Gerlach (Plaintiff)

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  • 10/06/2016
  • Notice of Case Management Conference; Filed by null

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  • 10/06/2016
  • Summons-Issued; Filed by Hilary Von Gerlach (Plaintiff)

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Tentative Rulings

Case Number: LC104718    Hearing Date: July 14, 2020    Dept: T

HILARY VON GERLACH,

Plaintiff,

vs.

FRG REDIII, LLC; et. al.

Defendants.

CASE NO: LC104718

[TENTATIVE] ORDER RE:

DEMURRER AND MOTION TO STRIKE THE FIRST AMENDED COMPLAINT

Dept. T

8:30 a.m.

July 14, 2020

[TENTATIVE] ORDER: The Demurrer to the First Amended Complaint is OVERRULED. The Motion to Strike the First Amended Complaint is GRANTED WITH LEAVE TO AMEND. The two Requests for Judicial Notice by Defendant Raintree Plaza Sherman Oaks LLC are GRANTED but not as to any hearsay.

  1. Introduction

    Defendant Raintree Plaza Sherman Oaks LLC (“Defendant”) demurs to the First Amended Complaint (“FAC”) filed by Plaintiff Hilary Von Gerlach (“Plaintiff.”) The demurrer places into issue the first cause of action (“COA”) for breach of agreement and the second COA for breach of the express and implied warranty of habitability. Defendant moves to strike the request for punitive damages within the FAC.

  2. Discussion

1st COA Breach of Contract: Defendant’s first argument as to the Dept. of Motor Vehicle (“DMV”) issued disability placard misconstrues the Court of Appeal opinion and the express language of the Lease. At the outset, the Court of Appeal opinion expressly opined that the allegations in the original Complaint’s claim for breach of contract was sufficient to plead the four elements of the claim. (Request for Judicial Notice (“RJN”) Exh. 7, pg. 10, Section 2.) The Court of Appeal further provided its opinion regarding the discrepancy between the facts pled in the original Complaint and Plaintiff’s deposition testimony providing that she did not provide Defendant with a “verification from a health care provider”, as required under Lease ¿24. (FAC Exh. A.) The Court of Appeal provided that Plaintiff’s explanation regarding the proffered disability placard was sufficient to plead around the discrepancy. (RJN Exh. 7, pg. 11.) The FAC pled the facts showing that she proffered the disability placard to Defendant’s agents. (FAC ¿¿9-10.) The FAC followed the opinion of the Court of Appeal and bolstered her allegations showing that she proffered the disability placard to reasonably comply with Lease ¿24.

Defendant places into dispute that the placard could have been obtained through a note provided by a person that is not a doctor (i.e.: physician assistant, nurse practitioner, certified nurse midwife or a chiropractor.) However, Defendant’s position misconstrues Lease ¿24 wherein it only requires a note/verification from a “health care provider.” The term is not defined in Lease Section “A” (“Definitions”) and ¿24. The term is not capitalized to indicate that a specific definition is attributed to it. Defendant does not provide any authority to show that “health care provider” is limited to doctors. Further, facts to determine how the parties defined the term are outside the four corners of the pleading and cannot be judicially noticed. As such, Defendant’s attempt to limit the definition of “health care provider” in the Lease to “doctors” is unsupported. Defendant’s argument that the Lease, as a matter of law, did not allow “health care provider” precluded physician assistant, nurse practitioner, certified nurse midwife or a chiropractor is not persuasive.

Defendant additionally argues that the placard itself could not evidence a health care provider’s verification of the disability and/or that the placard was not Plaintiff’s and/or that Plaintiff’s placard was a fallacy/fraudulent because her alleged injuries did not satisfy the requirements for a placard and/or the California State Auditor’s Report. However, these arguments are unpersuasive in that they place into issue the veracity of the allegation that the placard was properly obtained by Plaintiff. On a demurrer, factual allegations are deemed true. Plaintiff alleges that the DMV issued her a disability placard based upon her injuries. For the procedural stance of the demurrer, the Court must consider Plaintiff’s allegation to be true.

Lastly, Defendant argues that the allegations of the FAC show an excuse, as a matter of law, for their alleged breach (i.e.: handicap spaces were not available.) However, the argument is based upon a very narrow reading of the allegations. Plaintiff did not only request a handicap space but alternatively requested a space closer to the building’s elevators. Defendant’s narrow reading of the FAC makes the argument unpersuasive. Further, Defendant’s argument is a defense that can be properly alleged in an Answer.

2nd COA Breach of the Implied Warranty of Habitability: Preliminarily, it is noted that the Court of Appeal opined that the habitability claim is sufficiently pled based upon the allegation that Defendant had notice of the defective staircase and failed to repair and maintain the staircase. Due to Defendant’s failure to repair or maintain the staircase after Defendant had acquired ownership of the property, Plaintiff suffered resulting damages based upon payment of rent that should be refunded (i.e.: a rebate of excessive rent) and additional expenses and lost potential income from renting her home because she was forced to relocate from the apartment to that house after Defendant failed to accommodate her disability. The rebate of excessive rent was opined to be a “new injury” separate from her injuries resulting from the slip and fall. The Court of Appeal opined that Plaintiff sufficiently pled a causal relationship between the breach of the warranty of habitability and this “new injury.” (RJN Exh. 7, pg. 16-18.) Based upon the opinion, Defendant’s argument that the FAC failed to allege facts to support causation and/or failed to plead new damages and/or failed to plead damages separate from the damages resulting from the slip and fall are unpersuasive.

Defendant’s characterization of this COA as an amalgamation of other claims does not detract from the fact that the FAC has sufficiently pled a breach of warranty of habitability COA.

Defendant’s argument that the breaches in warranty and/or code violation were not material or de minimus are improper for a demurrer. Engalla v Permanente Medical Group, Inc. (1997) 15 Cal. 4th 951, 977 [“materiality is generally a question of fact.”]

The Court of Appeal expressly opined that Plaintiff was to clarify whether her allegation of “great mental and physical pain and suffering” referred to damages from the slip and fall or from the separate allegation of injury due to the continuing breaches of the warranty. (RJN Exh. 7, pg. 18.) The FAC clarifies that these damages are based upon the failures to accommodate and breach of warranty of habitability in refusing to provide a parking space close to the elevators. (FAC ¿25.) The FAC complied with the Court of Appeal opinion and rectified the defective pleading. The breach of warranty of habitability COA is sufficiently pled to overcome the demurrer.

Request to add nuisance: Plaintiff’s request to add a new COA is improperly requested in the opposition to a demurrer. The failure to place the requested relief in a properly noticed motion deprives Defendant of proper notice and opportunity to be heard on the issue and is, therefore, denied without prejudice.

Strike Punitive Damages: Preliminarily, it is noted that the request for punitive damages found in the FAC is only made under the second COA. There is no request for punitive damages under the first COA for breach of contract. Defendant’s arguments related to the first COA are not considered as moot.

The request for punitive damages is made under the second COA for breach of warranty of habitability. This COA is grounded on negligence theories. Negligence is not grounds for punitive damages when intentional conduct is not alleged. Plaintiff argues that the denial of the accommodation due to her disability was malicious and was a conscious disregard of her rights. However, other than the conclusory contention, Plaintiff fails to plead any specific facts to support her claim that the denial was malicious or a conscious disregard of her rights. The FAC merely pleads that Plaintiff made several requests for the accommodation and Defendant refused the request outright. Without additional specific facts, the claim of malice and conscious disregard of rights is insufficient. The court will grant leave to amend.

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