This case was last updated from Santa Clara County Superior Courts on 08/08/2019 at 19:40:07 (UTC).

Aiiram LLC, et al. v. KB Home

Case Summary

On 12/17/2018 Aiiram LLC filed a Contract - Other Contract lawsuit against KB Home. This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judge overseeing this case is Kuhnle, Thomas. The case status is Other - Transferred.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******9557

  • Filing Date:

    12/17/2018

  • Case Status:

    Other - Transferred

  • Case Type:

    Contract - Other Contract

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judge

Kuhnle, Thomas

 

Party Details

Plaintiffs

Kravchuk, Mariia

AIIRAM LLC

Defendants

KB Home, a Delaware corporation

KB Home

Not Classified By Court

Superior Court of California

Attorney/Law Firm Details

Plaintiff Attorney

Hassen, Michael John

Defendant Attorney

Simons, David Bernard

Not Classified By Court Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Notice

Notice of Removal State Court: Comment: NOTICE OF REMOVAL OF ACTION TO FEDERAL COURT

Exhibit List (Party)

Ex B to Notice of Order Deeming Complex: Comment: HRG 4/5/19 Ex B to Notice of Order Deeming Case Complex

Exhibit List (Party)

Ex A to Notice of Order Deeming Complex: Comment: HRG 4/5/19 Ex A to Notice of Order Deeming Case Complex

Notice

Notice of Order Deeming Case Complex: Comment: HRG 4/5/19 Notice of Order Deeming Case Complex

Order: Deeming Case Complex

Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/TEK

Notice: Related Cases

Notice of Related Case.pdf: Comment: Notice of Related Case

Civil Lawsuit Notice

Civil Lawsuit Notice: Comment: 1st CMC set for 4/5/19 at 10am in D5; assigned to Hon. Thomas E. Kuhnle

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies): Comment: Class Action Complaint

Summons: Issued/Filed

Summons Issued Filed:

Civil Case Cover Sheet

Civil Cover Sheet Class Action:

 

Docket Entries

  • 04/05/2019
  • Conference: Case Management - Judicial Officer: Kuhnle, Thomas; Hearing Time: 10:00 AM; Cancel Reason: Vacated; Comment: (1st CMC) Proposed Class Action. Related to Aiiram LLC, et al. v. KB Home, Superior Court of Santa Clara, Case No. 18CV329716, filed 6/11/18; assigned to D8/Judge Kulkarni (pending). Discovery and responsive pleading deadline stayed, as of 1/2/19, when the case was deemed complex. Matter removed to Federal Court on 1/16/19.

    Read MoreRead Less
  • 01/16/2019
  • View Court Documents
  • Notice - Notice of Removal State Court: Comment: NOTICE OF REMOVAL OF ACTION TO FEDERAL COURT

    Read MoreRead Less
  • 01/11/2019
  • View Court Documents
  • Exhibit List (Party) - Ex B to Notice of Order Deeming Complex: Comment: HRG 4/5/19 Ex B to Notice of Order Deeming Case Complex

    Read MoreRead Less
  • 01/11/2019
  • View Court Documents
  • Exhibit List (Party) - Ex A to Notice of Order Deeming Complex: Comment: HRG 4/5/19 Ex A to Notice of Order Deeming Case Complex

    Read MoreRead Less
  • 01/11/2019
  • View Court Documents
  • Notice - Notice of Order Deeming Case Complex: Comment: HRG 4/5/19 Notice of Order Deeming Case Complex

    Read MoreRead Less
  • 01/11/2019
  • Proof of Service: Summons DLR (Civil) - Comment: HRG 4/5/19 Proof of Service of Summons/Complaint

    Read MoreRead Less
  • 01/02/2019
  • View Court Documents
  • Order: Deeming Case Complex - Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/TEK

    Read MoreRead Less
  • 12/17/2018
  • View Court Documents
  • Notice: Related Cases - Notice of Related Case.pdf: Comment: 18CV329716, Aiiram LLC, et al. v. KB Home; filed 6/11/18; assigned to Department 8, Hon. Sunil Kulkarni presiding (pending).

    Read MoreRead Less
  • 12/17/2018
  • View Court Documents
  • Civil Lawsuit Notice - Civil Lawsuit Notice: Comment: 1st CMC set for 4/5/19 at 10am in D5; assigned to Hon. Thomas E. Kuhnle

    Read MoreRead Less
  • 12/17/2018
  • View Court Documents
  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies): Comment: Class Action Complaint

    Read MoreRead Less
  • 12/17/2018
  • View Court Documents
  • Summons: Issued/Filed - Summons Issued Filed:

    Read MoreRead Less
  • 12/17/2018
  • View Court Documents
  • Civil Case Cover Sheet - Civil Cover Sheet Class Action:

    Read MoreRead Less

Complaint Information

E-FILED

12/17/2018 10:30 AM Clerk of Court

REALLAW, APC , MICHAEL J HASSEN (Bar No. 124823) Superior Court of CA, mjhassen@reallaw.us County of Santa Clara 1981 N. Broadway, Suite 280 18CV339557

Walnut Creek, CA 94596 Reviewed By: R. Walker

Telephone: (925) 359-7500 Facsimile: (925) 557-7690

Attomeys for Plaintiffs AITIRAM LLC and

MARITA KRAVCHUK, individually and on behalf of all others similarly situated

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA

AIIRAM LLC and MARIIA KRAVCHUK, Case No. individually and on behalf of all others 18c V339557

similarly situated, CLASS ACTION COMPLAINT FOR:

Plaintiffs, (1) BREACH OF CONIRACT; V. (2) BREACH OF THE IMPLIED OVENANIT OF FAIR DEALING; KB HOME, a Delaware corporation, and DOES 1-10, Inclusive, 3 INITENITTONAL INTERFERENCE OF ECONOMIC ADVANTAGE;

Defendants.

(9 NEGLIGENCE INTEREFERENCE OF

ECONOMIC ADVANTAGE; AND

(3) BAD FATTH DENIAL OF CONIRACT

Plaintiffs AITRAM LLC and MARITIA KRAVCHUK, individually and on behalf of all

others similarly situated, complain and allege against defendant KB HOME as follows:

JURISDICTION AND VENUE

1. This class action is brought pursuant to Code of Civil Procedure section 382. The monetary damages sought by Plaintiffs exceed the jurisdictional limits of the Supenor Court and will be estahlished according to proof at trial. This Court has jurisdiction over this action pursuant to Article VI, Section 10, of the California Constitution. 3. Venue is properin this Court because Defendant employees persons in this County, because Plaintiffs transacted business underlying the allegations of this Complaint in this Courtty, and thus a substantial portion of the transactions and occurrences related to this lawsuit occurred in this County. Code Civ. Proc., § 395.

PARTIES

4, Plaintiff Maria Kravchuk is an individual residing in Ukraine.

D. Plaintiff AITRAM LLC is a Nevada limited liability company of which Plaintiff Mania Kravchuk is the sole owner.

0. According to its Secunities and Exchange Commission Form 10-K for fiscal year ending November 30, 2017, Defendant KB Home is a Delaware corporation with its principal place of business at 10990 Wilshire Boulevard, Los Angeles, Califormia 90024.

7. Plaintiffs are unaware of the true names and capacities of Defendants sued herein as Does 1-10, inclusive (“Doe Defendants”), and therefore sue these Doe Defendants by such fictitious names. Plaintiffs will seek leave to amend this Complaint to allege the true names and capacities of said Doe Defendants when ascertained. Plaintiffs are informed and believe that at all relevant times mentioned herein, each of the fictitiously-named Doe Defendants conducted business in Santa Clara County, California, and is culpable or responsible in some manner and/or conspired with one or more of the other Defendants for the conduct, acts, omissions, occurrences, injuries, and damages herein alleged, and that Plaintiffs’ injuries and damages were directly and proximately caused thereby.

CLASS ACTION ALLEGATIONS

8. Plaintiffs brng this lawsuit on her own behalf, as well as on behalf of each and every other person similanly situated, and thus seeks class certification under Code of Civil Procedure section 382.

9. The claims alleged herein arise from a breach of contract. As a matter of law, such claims are suitable for nationwide class action treatment. The only real legal issue pertinent to the breach of contract claims is the definition of “breach,” which does not differ from state to state. As

one Court held, “Whether[a] contract] ] ... has been breached is a pure and simiple question of contract interpretation which should not vary from state to state.” (Indianer v. Franklin Life Ins. Co. (S.D.Fa.1986) 113 F.R.D. 595, 607, overruled in part on other grounds by Ericsson GE Mobile Conrmums., Inc. v. Motorola Conmuns. & Elecs., Inc. (11th Cir. 1997) 120 F.3d 216, 219 fn. 12; accord Leszczynski v. Allianz Ins. (S.D. Fla. 1997) 176 E.R.D. 659, 672.) Put another way, “The application of various state laws would not be a bar where, as here, the general policies underlying common law rules of contract interpretation tend to be uniform.” (Kleiner v. First Nat' Bank of Atlanta (N.D.Ga.1983) 97 F.R.D. 683, 694.) Orin the words of the Eleventh Circuit, “A breach is a breach is a breach, whether you are on the sunny shores of California or enjoying a sweet auturmn breeze in New Jersey. See Black’s Law Dictionary 200 (8th ed. 2004) (defining “breach of contract” as “[v]iolation of a contractual obligation by failing to perform one’s own promise”). (Klay v. Hurmana, Inc. (11th Cir. 2004) 382 F.3d 1241, 1263.) 10. Plaintiffs’ proposed class consists of and is defined as follows: Natiormide Class: All persons who entered into a contract with Defendant for the purchase of real property that contained a three- day “night to cure” provision, but whose contracts were terminated on less than three days’ notice. Cdliformia Subdass: All persons who entered into a contract with Defendant for the purchase of real property located in the State of California that contained a three-day “right to cure” provision, but whose contracts were termiinated on less than three days’ notice. 11. Members of the Nationwide Class and California Subclass are refernred to herein as “class members.” Plaintiffs reserve the nght to redefine the Nationwide Class and to add additional subclasses as appropriate, based upon further investigation, discovery, and specific theories of liability. 12. There are common questions of law and fact as to class members that predominate over questions affecting only individual members, including but not limited to: a Whether Defendant properly calculated the three day “right to cure” period

under the contract; o

Whether Defendant intentionally failed to provide class members with three days to cure as provided forunder the contract;

Whether Defendant failed to provide class members with three days to cure as part of a corporate effort to realize a greater profit from the sale of the

0

real property at issue; and

Whether Defendant previously had been placed on notice of the fact that it was niiscal culating the three-day right to cure period.

The identity of the class members is readily ascertainable from Defendant’ s

o,

There is a well-defined commumity of interest in the lawsuit as follows:

a. Numerosity: The sizes of the Nationwide Class and Califormia Subclass are so numerous that joinder of all members would be neither feasible nor practical. The memberships of the Nationwide Class and California Subclass are unknown to Plaintiffs at this time, but they are estimated to be greater than 100 individuals and are readily identifiable by inspection of Defendant’s business records.

Commonality and Typicality: Plaintiffs’ claims and defenses, if any, are typical of those of other class members, and the claims of all class members

o

tum on the resolution of common questions conceming Defendant’ s failure to afford class members the full three days right to cure as allowed under the contracts.

Adequacy: Plaintiffs are qualified to, and will, faily and adequately protect the interests of each class member with whom they have a well-defined commumity of interest and with whom they share common and typical

P

claims. Plaintiffs’ attomey - the proposed class counsel - is well-versed in the rules goveming class action discovery, certification and settl ement.

o,

Superiority: The nature of this lawsuit makes the use of the class action achieve economies of time, effort and expense - both for the parties and for the courts - as compared with separate lawsuits, and will avoid inconsistent outcomes because the same issues can be adjudicated in the same manner and at the same time for the entire class.

GENERAL ALLEGATIONS

15. Onorabout July 26, 2017, Plaintiff Kravchuk and an individual named Artem Koshkalda electronically signed a Purchase A greement and Escrow instructions with Defendant for Tract 10377, Lot/Unit 8, at 1035 Giacomo Lane #/, San Jose, California 95130, for a total purchase price of $94.3,367.00 (hereafter the “Lot 8 Contract”). Plaintiffs are informed and believe that Defendant KB Home South Bay Inc. executed the Lot 8 Contract on or about August 3, 2017. On or about August 4, 2017, $27,240 was deposited into escrow for the purchase of Lot 8. The Lot 8 Contract set forth an estimated closing date of November 27, 2017.

16. Plaintiffs are informed and believe that on or about July 27, 2017, Artem Koshkalda and an individual named Vladimir Westbrook electronically signed a Purchase Agreement and Escrow instructions with Defendant for Tract 10377, Lot/Unit 11, at 1035 Giacomo Lane #, San Jose, California 95130, for a total purchase price of $876,427.00 (hereafter the “Lot 11 Contract”), and that Defendant KB Home South Bay Inc. executed the Lot 11 Contract on or about August 4, 2017. On or about August 4, 2017, $25,440 was deposited into escrow for the purchase of Lot 11. The Lot 11 Contract set forth an estimated closing date of November 30, 2017.

17. Onorabout July 28, 2017, AIIRAM LLC, through its sole owner Plaintiff Kravchuk, electronically signed a Purchase A greement and Escrow instructions with Defendant for Tract 10377, Lot/Unit 14, at 1035 Giacomo Lane #1, San Jose, California 95130, for a total purchase price of $932,028.00 (hereafter the “Lot 14 Contract”). Plaintiffs are informed and believe that Defendant KB Home South Bay Inc. executed the Lot 14 Contract on or about August 3, 2017. On or about August 4, 2017, $27,240 was deposited into escrow for the purchase of Lot 14. The Lot 14 Contract set forth an estimated closing date of November 30, 2017. Lot 8, Lot 11

and Lot 14 are hereafter collectively referred to as the “Properties.” 18. Plaintiffs are informed and believe that on November 9, 2017, Westbrook, individuallyreal estate agent for the purchasers14, perfonmed a pre-carpet walk-through of the Properties to visually inspect the homes and to identify items that needed to be corrected.

19. Plaintiffs are informed and believe that on November 20, 2017, Defendant was provided with the contact infonmation for the lender on the purchases of the Properties, and that Defendant - directly or through its sales team - provided the lender with all necessary documentation to close escrow on the Properties.

20. Plaintiffs are informed and believe that on November 27, 2017, Westhbrook, individuallyreal estate agent for the purchasers14, perfonmed a final walk-through of the Properties to visually inspect the homes and to ensure that the items previously identified had been corrected.

21. Plaintiffs are informed and believe that on November 27, 2017, Detendant sent an email to Koshkalda stating that November 30, 2017 was “the end of our fiscal year” and that it was “imperative” that escrows on the Properties close by that date. Defendant’s email also stated, “Y our 3 day default letter will go out today and you will receive [it] tomorrow. The cure to the default is to close by 11/30/17 or we will refund your deposit and cancel the purchase.”

22. On November 27, 2017, Defendant sent by Golden State Ovemight a notice of default under section 3.2 of the Lot 8 Contract and expressly stating in pertinent part:

Be advised that section 3.2 allows you to continue with the purchase of your home if you are able to deposit all funds into escrow within 3 business days of delivery of this letter and you provide KB Home a copy of your final loan approval (as opposed to preliminary loan qualification). (Emphasis in original.)

23. Section 3.2.2 of the Lot 8 Contract provides in pertinent part:

. if Buyer .... places all funds into escrow necessary to purchase the Property no later than three (3) business days afterthe delivery of Seller’s notice to terminate the Agreement pursuant to this Section 3.2.2, the Loan approval condition shall be deemed satisfied and the Agreement shall not terminate. ...

24. Onorabout November 28, 2017, all rights to purchase the Properties under the Lot

8 Contract, the Lot 11 Contract and the Lot 14 Contract were assigned to AITRAM LLC. 25. Plaintiffs’ loans were approved prior to November 30, 2017, and Plaintiff Kravchuk made arrangements to fly into California on November 30 to sign the escrow papers and to deposit the balance of the funds required to purchase the Properties.

20. Plaintiff Kravchuk flew to California on November 30, 2017, and went to First American Title, which was handling the escrow, to sign the final paperwork. Plaintiffs were advised by the escrow officer that the final paperwork had to be comrected. While escrow worked on correcting the closing papers, Plaintiffs went to the bank to obtain cashier's checks for the purchase of the Properties.

27. While Plaintiffs were at the bank, the escrow officer spoke with Plaintiff Kravchuk by phone and advised her that “there is no point to get the checks because the contracts were canceled by KB Home.” Even though at that time - on November 30, 2017 - Plaintiffs’ lender and Plaintiffs were ready, willing and able to transfer all funds necessary into escrow to purchase the Properties, and even though the escrow officer confinmed that if the funds were deposited into escrow on November 30 then escrow would close on December 1, 2017, KB Home had instructed the escrow company not to allow Plaintiffs to sign the closing documents.

28. That evening, on November 30, 2017 at approximately 7 p.m., only two hours after instructing escrow not to allow Plaintiffs to sign the closing papers and to cancel the escrows, Defendant left a voicemail for Westhrook as the real estate agent for Plaintiffs advising him that the Properties were available for purchase at “market prices”.

29. Plaintiffs are informed and believe that Defendant’s then-market prices for the Properties was as follows: Lot 8 - $1,166,609; Lot 11 - $1,095,760; Lot 14 - $1,155,448.

FIRST CAUSE OF ACTION [BREACH OF CONIRACT]

30. Plaintiffs incorporate paragraphs 1 through 29 as though set forth herein.

31. Plaintiffs and other class members entered into written contracts with Defendant (hereafter collectively, the “Contracts”).

32. Plaintiffs and other class members perfonmed all terms that they were obligated to

perform under the Contracts, and were ready, willing and able to close escrow on the purchase of their respective real properties.

33. Defendant breached the Contracts by refusing to allow Plaintiffs and other class members to close escrow on the purchase of the real properties within 3 business days of delivery of Defendant’s 3-day default letters.

3A. As a direct and proximate cause of Defendant’s breach of the Contracts, Plaintiffs and other class members have suffered damages in an amount to be proven at trial.

SECOND CAUSE OF ACTION [BREACH OF CONTRACT OF THE IMPLIED COVENANT OF FAIR DEALING]

35. Plaintiffs incorporate paragraphs 1 through 34 as though set forth herein.

36. Defendant entered into the Contracts with Plaintiffs and other Califormia subclass members for the purchase of the real properties.

37. California law implies into every contract or agreement an inplied covenant of good faith and fair dealing. This means that each party will not do anything to unfairly interfere with the right of any other party to receive the benefits of the contract.

38. Pursuant to the implied covenant of good faith and fair dealing, Defendant had the duty and responsibility to act fairly and in good faith toward Plaintiffs and other California subclass members. Defendant breached this duty and acted in bad faith toward Plaintiffs and other California subclass members.

39. Defendant breached the implied covenant of good faith and fair dealing by refusing to allow Plaintiffs and other California subclass members to close escrow for the purchase of the real properties within 3 business days of the delivery of the 3-day default letters, as required by the Contracts.

40. Plaintiffs and other Califormia subclass members did all or substantially all of the significant things that the Contracts required them to do or they were excused from having to do those things; all conditions required for Defendant’s perfornmance occurred; Defendant unfaily interfered with Plaintiffs’ and other California subclass members’ rights to receive the benefits of the Contracts; and Plaintiffs and other California subclass members were harmed by Defendant’s

oconduct. 41. Plaintiffs and other California subclass members have suffered damages in an amount to be proven at trial.

42. Plaintiffs and other California subclass members are entitled to an award of attomey fees.

43. Defendant acted with malice and oppression and with a conscious disregard of Plaintiffs’ and other California subclass members’ nights, making them liable for punitive damages under Civil Code § 329%4.

THIRD CAUSE OF ACTION [INTENTIONAL INTERFERENCE OF ECONOMIC ADVANTAGE]

44. Plaintiffs incorporate paragraphs 1 through 43 as though set forth herein.

45. Following the execution of the Contracts, Plaintiffs and other class members had econoniic interests in the real properties that they were in contract to purchase. These interests: (1) had the probahility of future economic benefit to Plaintiffs and other class members; (2) Defendant knew of these interests; (3) Defendant intentionally disrupted the interests and/or refused to allow Plaintiffs and other class members to close escrow on the purchase of the real properties so that Plaintiffs and other class members could realize the economic benefits of these interests; (4) there was actual interference with Plaintiffs’ and other class members’ interests in the real properties; and (5) there was economic harm to Plaintiffs and other class members proximately caused by Defendant’ s acts.

46. Plaintiffs and other class members have suffered damages in an amount to be proven at tnal.

47. Defendant acted with malice and oppression and with a conscious disregard of Plaintiffs’ and other class members’ rights, making them liable for punitive damages under Civil Code § 32H4.

FOURTH CAUSE OF ACTION INEGLIGENCE INTEREFERENCE OF ECONOMIC ADVANTAGE]

48. Plaintiffs incorporate paragraphs 1 through 47 as though set forth herein.

49. Following the execution of the Contracts, Plaintiffs and other class members had econoniic interests in the real properties that they were in contract to purchase. These interests: (1) had the probability of future economic benefit to Plaintiffs and other class members; (2) Defendant knew of these interests; (3) Defendant negligently disrupted the interests and/or refused to allow Plaintiffs and other class members to close escrow on the purchase of the real properties so that Plaintiffs and other class members could realize the economic benefits of these interests; (4) there was actual interference with Plaintiffs’ and other class members’ interests in the real properties; and (5) there was economic harm to Plaintiffs and other class members proximately caused by Defendant’s acts.

50. Plaintiffs and other class members have suffered damages in an amount to be proven at tnal.

FIFTH CAUSE OF ACTION [BAD FAITH DENIAL OF CONIRACT]

bl. Plaintiffs incorporate paragraphs 1 through 50 as though set forth herein.

52. Defendant entered in Contracts with Plaintiffs and other class members for the purchase of the real properties that they were in contract to purchase, and admit that they were required to allow Plaintiffs and other class members to fund the purchase of the Properties if they “deposit] ed] all funds into escrow within 3 business days of delivery of this letter.”

53. Plaintiffs and other class members were ready, willing and able to deposit all funds into escrow within 3 business days of delivery of Defendant’s default letters.

5. Detendant refused to allow Plaintiffs and other class members to close escrow on the real properties and represented that they had no contractual obligation to allow Plaintiffs and other class members to purchase the real properties.

50. Defendant thus denied of the existence of their Contracts with Plaintiffs and other class members in bad faith and without probable cause.

56. Defendant’s bad faith denial of the existence of a contract caused harm to Plaintiffs and other class members.

57. Plaintiffs and other class members have suffered damages in an amount to be

proven at tnal. 58. Defendant acted with malice and oppression and with a conscious disregard of Plaintiffs’ and other class members’ rights, making them liable for punitive damages under Civil Code § 3294.

PRAYER

Plaintiffs. on behalf of themselves and all other similarly situated class members, pray for judgment as follows:

1. For judgment in favor of Plaintiffs and other class members and against Defendant in an amount to be proven at trial; for an award of punitive damages: for an award of costs of suit,

including attorney fees; and for such other and further relief as the Court deems just and proper.

10 CLASS CERTIFICATION

11 A Plaintiffs request this case be certified as a nationwide and statewide class action; 12 L3 Plaintiffs request they be appointed as Representatives of the class and subclass. % 13 -+ Plaintiffs request their attorneys be appointed as Counsel for the class and subclass.

§ 14 AS TO ALL CAUSES OF ACTION

15 2 Plaintiffs pray for judgment in favor of Plaintiffs and other class members and

against Defendant in an amount to be proven at trial; for an award of punitive damages, where appropriate; for an award of costs of suit, including attorney fees, where appropriate; and for such

other and further relief as the Court deems just and proper.

DATED: December/ 7, 2018 REALLAW, APC

By: