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Case
TRUIST BANK v. GROELING JR, ROBERT H et al
Oct 10, 2023 |Doran, Hon. Craig J. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |137228-2023
Case
WELLS v. COLE / FIVE / BENEFICIAL / CITIBANK
Mar 07, 2014 |Reed, Hon. Frederick G. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |109917
Case
BANK / LASALLE v. HARVEY / CAPITAL / MIDLAND / HSBC / FARM
Jun 25, 2013 |Kocher, Hon. William F. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |106595
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HSBC v. HARO / CAPITAL / PINNACLE / DAIMLERCHRYS
Jun 04, 2013 |Reed, Hon. Frederick G. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |107909
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CASTILE v. BALCONI
Jan 17, 2013 |Doran, Hon. Craig J. |RP-Mortgage Foreclosure-Residential |RP-Mortgage Foreclosure-Residential |100143
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Ruling
ROSA L. MUNGUIA RODRIGUEZ, ET AL. VS PETER COELER
Aug 28, 2024 |23CHCV00469
Case Number: 23CHCV00469 Hearing Date: August 28, 2024 Dept: F47 Dept. F47 Date: 8/28/24 Case #23CHCV00469 MINORS COMPROMISE Petition filed on 8/5/24. MINOR: Breanna Munguia-Sena GAL: Rosa L. Munguia Rodriguez DEFENDANT: Peter Coeler dba P.A.C. Properties RULING: Minor Breanna Munguia-Sena (Minor) resided in a residential dwelling unit along with other family members, including her parent and guardian ad litem, Rosa L. Munguia Rodriguez. Plaintiffs claimed the unit was not properly maintained by Defendant Peter Coeler dba P.A.C. Properties (Defendant) who is alleged to be the landlord, manager and operator of the residential dwelling. Defendant denied all the allegations and claims or liability is disputed. There are no claimed injuries except discomfort. Minor received no medical treatment. Defendant has offered to settle Minors claim for $3,000.00. Attorneys fees in the amount of $750.00 will be paid from the settlement. The remaining $2,250.00 is to be paid/delivered to the parent of the minor, without bond, on the terms and under the conditions specified in Probate Code 3401-3402. The petition contains the following defects: (1) No.11.b.(1) should be $57,000.00 instead of $60,000.00 the total amount offered to others, not the total settlement including Minor, which is $60,000.00. (See No.11.b.(5)). (2) No.17.e. incorrectly indicates that the attorney is not representing any other party when the attorney represents the other plaintiffs. (3) No.21 was improperly signed (electronically) by the minor. No.21 only applies if the claimant is an adult with a disability who has capacity&). Additionally, a proposed Order has not been submitted. Upon the correction of the above-mentioned defects and the submission of an appropriate Order approving the compromise, the petition will be granted.
Ruling
Sol Selection, LLC vs. All persons unknown
Aug 27, 2024 |23CV-0203591
SOL SELECTION, LLC VS. ALL PERSONS UNKNOWNCase Number: 23CV-0203591This matter is on calendar for review regarding status of default judgment. On June 5, 2024, thisCourt issued its Ruling after a June 3, 2024 Default Prove Up hearing. The Court denied therequest to enter default judgment without prejudice. Nothing further has been filed. Anappearance is necessary on today’s calendar to provide the Court with a status of defaultjudgment.
Ruling
MONTEGO RIVERSIDE COUNTY HOMEOWNERS ASSOCIATION vs TOWN AND COUNTRY CREDIT CORP.,
Aug 29, 2024 |CVSW2208601
MONTEGO RIVERSIDECOUNTY HOMEOWNERS OSC RE. ADDING WESTERNCVSW2208601ASSOC. V. TOWN AND PROGRESSIVE TO THE JUDGMENTCOUNTRYTentative Ruling: GRANT as to Western Progressive LLC and Western Progressive.VACATE the CMC and discharge other OSCs.
Ruling
ORIAN vs ALL PERSONS UNKNOWN CLAIMING ANY LEGAL OR EQUI
Aug 29, 2024 |RIC1810028
ORIAN VS ALL PERSONS MOTION FOR SUMMARY JUDGMENTRIC1810028 UNKNOWN CLAIMING ANY ON 1ST AMENDED CROSS-LEGAL COMPLAINT OF LUIS GARCIATentative Ruling:The Motion for Summary Judgment as against Cross-Defendant A. Pathak is granted for reasonCross-Complainants have met the initial burden of producing evidence on each element of everycause of action justifying a summary judgment as to the entire action. Once the burden shifted,A. Pathak failed to meet his burden of producing controverting evidence raising a triable issue offacts as to any cause of action.Cross-Complainants’ Requests for Judicial Notice:Nos. 2-38: is granted only as to “the fact of a document’s recordation, the date the document wasrecorded and executed, the parties to the transaction reflected in a recorded document, and thedocument’s legally operative language, assuming there is no genuine dispute regarding thedocument’s authenticity”; and “from this, the court may deduce and rely upon the legal effect ofthe recorded document, when that effect is clear from its face.” (Fontenot v. Wells Fargo Bank,N.A. (2011) 198 Cal.App.4th 256, 265, disapproved on other grounds by Yvanova v. New CenturyMortgage Corp. (2016) 62 Cal.4th 919; see Poseidon Development, Inc. Woodland Lane Estates,LLC (2007) 152 Cal.App.4th 1106, 1118 [judicial notice properly taken of the legal effect ofassignment of deed of trust].)Nos. 1, 39-52: is granted only to extent these documents exist as part of record or file of a courtin this state or the United States and should not be accepted as true matters stated, unless thematters are indisputably true. (Evid. Code, §452(d) [judicial notice may be taken of records of anycourt of this state or United States]; See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569; also see Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.)Cross-Complainants’ evidentiary objectionSustained.
Ruling
ST. ANDREWS SECOND HOME LLC, A DELAWARE LIMITED LIABILITY COMPANY VS SECOND HOME US INC., A DELAWARE CORPORATION, ET AL.
Aug 28, 2024 |23STCV09293
Case Number: 23STCV09293 Hearing Date: August 28, 2024 Dept: 52 No. 7 St. Andrews Second Home, LLC v. Second Home US Inc. 8/28/24 23STCV09293 Tentative Ruling The court has reviewed plaintiffs memorandum in support of its request for entry of default on its first amended complaint. The court finds that defendants Second Home US Inc. and Second Home Ltd. have been duly served with the first amended complaint. After both defendants made a general appearance, they were served by mail at the last known address they provided the court and plaintiff in their substitutions of attorney dated April 9, 2024. The court further finds that defendants have not timely responded to the first amended complaint. The general rule is that a plaintiff can obtain a default against a defendant who responded to a complaint but failed to timely respond to an amended complaint. (Code Civ. Proc., § 471.5.) But an exception to the rule applies, at least in part, in this case. [W]hen a complaint is amended after answer, the defendant is not bound to answer de novo. He may do so if he chooses; but, if he does not elect to do so, his original answer stands as his answer to the amended complaint; and in such case he will not be in default except as to the additional facts set up in the amended complaint, and not put in issue by the answer. (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 809.) Here, plaintiffs initial complaint sets forth a breach of contract cause of action against each defendant. Plaintiff alleged that defendants were liable for $585,468.89 in unpaid rent due as of March 8, 2023. The claim against defendant Second Home US Inc. was based on a written lease. The claim against Second Home Ltd. was based on a written guaranty. On these claims, a default cannot be taken against defendants. Turning to the first amended complaint, plaintiff must offer evidence to establish liability on its first and third causes of action because defendants are deemed to deny them, at least in part. But plaintiffs second cause of action for breach of contract is a new claim because it is based on defendant Second Home US Inc.s alleged failure to construct improvements, not its alleged failure to pay rent. Likewise, plaintiffs fourth cause of action for negligence, fifth cause of action for waste, sixth cause of action for breach of assignment, and seventh cause of action for conversion are wholly new claims that defendants have not denied. Plaintiff thus need not establish liability on those claims. Under Code of Civil Procedure section 585, the clerk shall enter the default of the defendant or defendants who has or have not timely responded to the operative complaint. (Code Civ. Proc., § 585, subds. (a)(b).) The statute does not provide for the entry of default against a defendant on a subset of the causes of action. In other words, whether the clerk enters default is a binary matter. Consistent with this binary choice, the courts electronic administrative system does not permit the clerk to enter default on selected causes of action. Either the defendant is in default, or the defendant is not in default. In these circ*mstances, the court shall not direct the clerk to enter default.
Ruling
RISSMAN vs RISSMAN
Sep 01, 2024 |CVRI2202453
DEMURRER ON COMPLAINT FOROTHER REAL PROPERTY (OVERCVRI2202453 RISSMAN VS RISSMAN$25,000) OF HOWARD J RISSMAN BYMATTHEW RISSMANTentative Ruling: No tentative will be given. Counsel is required to appear and provide an updateto the court regarding the status of adding all necessary parties.5.DEMURRER ON COMPLAINT FORMEDICAL MALPRACTICE (OVERMCLAUGHLIN VS COUNTYCVRI2302520 $25,000) OF LINDA MCLAUGHLIN BYOF RIVERSIDEJOHNSON & JOHNSON SERVICES,INCTentative Ruling: The unopposed demurrer is sustained with 30 days leave to amend.
Ruling
GLENDELLA ROBERTS, ET AL. VS SIMONE 2015 LP, A CALIFORNIA LIMITED PARTNERSHIP, ET AL.
Aug 29, 2024 |24STCV00508
Case Number: 24STCV00508 Hearing Date: August 29, 2024 Dept: 31 Tentative Ruling Judge Kerry Bensinger, Department 31 HEARING DATE: August 29, 2024 TRIAL DATE: Not set CASE: Glendella Roberts, et al. v. Simone 205, LP, et al. CASE NO.: 24STCV00508 DEMURRER WITH MOTION TO STRIKE MOVING PARTY: Defendants Simone 2015 LP, et al. RESPONDING PARTY: Plaintiffs Glendella Roberts, et al. I. BACKGROUND This case arises from habitability issues at the property located at 520 San Julian Street, Los Angeles, CA 90013 (Subject Property). Plaintiffs Glendella Roberts, Katrina Newman, Lyvette Frost, Schnyra Butler, Frederick Martin, Roy Kissine, Kelli Velasco, Michael Campos, Rickey Barfield, Lester Forest, Karl Hamilton, Billie Hall, James Broadway, Marvin Keller, Khaleelah Phillips, Adolfo Garcia, Leonard Edwards, Ebony Duhaney, Douglas Iles, Jose Munoz, Perry Howell, Sandra Garcia, Arlene Adams, Carolyn Holman, Dirk Robinson, Ronald Walker, Tonnie Smith, Steven Archuleta, Edwin Alvarado, Eric Love, Michael Welch, Kenneth Jiles, and Charles Davie (collectively, Plaintiffs) are low-income bona fide tenants of the Subject Property. The Subject Property is owned by Simone 2015 LP (Simone) and managed by SRHT Property Management Company (SRHT) and John Stewart Company (JSC). Each plaintiff entered into a written lease agreement with Simone. Throughout Plaintiffs tenancies, the Subject Property lacked basic characteristics for human habitation. Plaintiffs consistently complained to Simone, SRHT, and JSC about inadequate weather protection, inadequate plumbing, dampness and mold, inadequate sanitation, lack of heating and ventilation, vermin infestation, structural hazards, inadequate wiring, nuisance, inadequate mechanical equipment, failure to maintain the premises in a good and safe condition, and harassment. The Los Angeles Housing Department (LAHD) inspected the Subject Property numerous times in 2023 and observed various habitability violations. Because the violations persisted, LAHD referred the Subject Property for consideration for placement in a city administered escrow account program. Thereafter, a receivership was appointed. On January 8, 2024, Plaintiffs commenced this action against Simone, SRHT, and JSC (collectively, Defendants). The operative pleading is the First Amended Complaint (FAC). In the FAC, Plaintiffs allege causes of action against Defendants for: 1. Breach of Contract 2. Breach of the Covenant of Quiet Enjoyment 3. Breach of the Implied Warranty of Habitability 4. Tortious Breach of Implied Warranty of Habitability; 5. Negligence 6. Violation of California Civil Code Section § 1942.4; 7. Violation of Unfair Business Practices; and 8. Tenant Harassment. The first, second, third, fourth, and sixth causes of action are asserted against Defendant Simone only. Defendants now demur to all causes of action and seek an order striking portions of the FAC. Plaintiffs filed oppositions to the demurrer and motion to strike. Defendants filed a consolidated reply. II. DISCUSSION RE DEMURRER A. Legal Standard A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)¿ When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true.¿ (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)¿ Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.¿ (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.) B. Application Defendants demur to each cause of action. The arguments are not raised in order (i.e., one, two, three). For ease of reference, the court tracks the order of Defendants arguments. 1. Breach of Implied Warranty of Habitability (3rd Cause of Action) The elements for a breach of the implied warranty of habitability cause of action are: (1) the existence of a material defective condition affecting the premises habitability; (2) notice to the landlord of the condition within a reasonable time after the tenants discovery of the condition; (3) the landlord was given a reasonable time to correct the deficiency; and (4) resulting damages. (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.) A warranty of habitability is implied in all residential rental agreements. (See Green v. Superior Court (1974) 10 Cal.3d 616, 629.) The implied warranty imposes upon the landlord the obligation to maintain leased dwellings in a habitable condition throughout the term of the lease. The standard for breach is a substantial defect or statutory noncompliance. (See Smith v. David (1981) 120 Cal.App.3d 101, 109.) Whether the defect is substantial (and thus a cognizable breach) or de minimis (no actionable breach) is decided on a case by case basis. (See Hall v. Municipal Court (1974) 10 Cal.3d 641, 644.) The landlords actual or constructive notice of the alleged uninhabitable condition is an essential prerequisite to an actionable breach of warranty claim. (See Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1205-06.) Defendants argue the breach of implied warranty claim fails for two reasons: (1) the element of notice is not sufficiently pled; (2) the claim is duplicative of the sixth cause of action for violation of Civil Code section 1942.4 and is only an affirmative defense. The arguments lack merit. First, Plaintiffs allege Defendants had actual and constructive notice of the defective conditions at the Subject Property (FAC ¶ 50); that LAHD inspected the Subject Property numerous times in 2023 and then referred the Subject Property for determination as to whether it should be placed in a city administered escrow account program (FAC ¶ 51); and that Plaintiffs complained about the uninhabitable conditions to Defendants, but the defects were not remedied (FAC ¶ 61). Plaintiffs sufficiently allege Defendants were given notice of the uninhabitable conditions. Second, the argument that a claim for breach of implied warranty claim and a claim for violation of Civil Code section 1942.4 are mutually exclusive. The claims provide different remedies and arise from different sourcesone, in contract, and the other, in statute. Further, violation of breach of the implied warranty is an affirmative defense and a cause of action. (See Erlach, supra, 226 Cal.App.4th at p. 1297 [In addition to asserting a breach of the habitability warranty as a defense to an unlawful detainer action, a tenant may bring suit against the landlord for damages resulting from such breach.].) Accordingly, the demurrer to the third cause of action is OVERRULED. 2. Tortious Breach of Implied Warranty of Habitability (4th Cause of Action) Defendants argue that the fourth cause of action is duplicative of the third cause of action. However, the fourth cause of action is a tort-based claim; the third cause of action is based in contract. At this stage, Plaintiffs may assert both tort and contract based-claims. (See Bayuk v. Edson (1965) 236 Cal.App.2d 309, 320 [The same act may be both a tort and a breach of contract. * * * Even where there is a contractual relationship between the parties, a cause of action in tort may sometimes arise out of the negligent manner in which the contractual duty is performed. * * * A tort may grow out of or be coincident with a contract, and the existence of a contractual relationship does not immunize a tortfeasor from tort liability for his wrongful acts in breach of the contract.].) Accordingly, the demurrer to the fourth cause of action is OVERRULED. 3. Breach of Covenant of Quiet Enjoyment (2nd Cause of Action) [E]very lease includes a covenant of quiet possession and enjoyment. (Erlach, supra, 226 Cal.App.4th at p. 1299 (citing Civ. Code, § 1927).) Minor inconveniences and annoyances are not actionable breaches of the implied covenant of quiet enjoyment. (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 589.) To be actionable, the [landlords] act or omission must substantially interfere with a [tenants] right to use and enjoy the premises for the purposes contemplated by the tenancy. (Id.) Defendants argue this cause of action fails for three reasons: (1) the allegations are uncertain as to the severity of interference; (2) the FAC does not plead the element of constructive eviction, and (3) it is duplicative of the third cause of action for breach of implied warranty of habitability. These arguments lack merit. First, the FAC alleges numerous uninhabitable conditions, including but not limited to bed bugs, mold exposure, and vermin infestations. (See FAC ¶¶ 49-60.) The violations went unabated for such a period of time that a court receiver was appointed. (See FAC ¶ 47.) The substantial interference element is sufficiently pleaded. Second, constructive eviction is not an element of a breach of quiet enjoyment claim. Indeed, the opposite is true. (See Andrews, supra, 125 Cal.App.4th at pp. 588-590 [as to a claim for breach of the covenant of quiet enjoyment, stating, [a]lternatively, a tenant may elect to stand upon the lease, remain in possession and sue for breach of contract damages as well as for injunctive relief.].) Third, there is no authority for the proposition that a claim for breach of quiet enjoyment is duplicative of a claim for breach of the implied warranty. Accordingly, the demurrer to the second cause of action is OVERRULED. 4. Breach of Contract (1st Cause of Action) The elements of a breach of contract claim are: (1) the existence of a contract, (2) the plaintiffs performance of the contract or excuse for nonperformance, (3) the defendants breach, and (4) the resulting damage to the plaintiff. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Defendants argue the first cause of action fails because (1) elements one, two, and three are not sufficiently alleged, and (2) it is derivative and duplicative of the third cause of action. The court disagrees. Plaintiffs allege they either entered into a lease agreement with Simone or Simone assumed the lease that Plaintiffs had previously entered with the prior owner of the Subject Property. (FAC ¶¶ 68, 69.) Plaintiffs allege they performed all of their obligations under the lease. (FAC ¶ 74.) They also allege the specific provisions of the lease agreement that Simone breached. (FAC ¶ 73.) The first three elements are sufficiently pleaded. Second, Plaintiffs breach of contract claim is not duplicative of the third cause of action. The breach of contract claim is based on breaches of specific provisions of the lease agreement (see FAC ¶ 73) whereas the breach of implied warranty claim is based on an implied warranty in all residential lease agreements. Accordingly, the demurrer to the first cause of action is OVERRULED. 5. Negligence (5th Cause of Action) The elements for a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) The negligence claim is based on Defendants failure to make repairs and maintain the Subject Property, to correct substandard conditions, and to supervise their agents and employees who operated and maintained the building. (See FAC ¶ 113.) On demurrer the court accepts the allegations as true. Here, the FAC alleges that the Defendants owed a duty of care to Plaintiffs which they breached by allowing numerous uninhabitable conditions to exist at the Subject Property. Accordingly, the demurrer to the fifth cause of action is OVERRULED. 6. Violation of California Civil Code Section 1942.4 (6th Cause of Action) Civil Code section 1942.4 prevents a landlord from demanding or collecting rent or issue a three-day notice to pay rent or quit if a dwelling substantially lacks the characteristics described in Civil Code section 1941.1 or Health And Safety Code section 17920.10, a public officer has notified the landlord to repair substandard conditions, the conditions have existed and not been abated 35 days beyond the date of that notice, the delay was without good cause, and the conditions were not caused by the tenant or lessee. (Civ. Code § 1942.4, subd. (a)(1) - (4).) Defendants argue that the FAC does not sufficiently allege the elements of notice and good cause. The court disagrees. As discussed elsewhere, the FAC sufficiently alleges the element of notice. Further, Plaintiffs sufficiently allege that the uninhabitable conditions went unabated for 35 days and existed unabated for so long that a receiver was appointed for the Subject Property. (FAC ¶ 51.) Accordingly, the demurrer to the sixth cause of action is OVERRULED. 7. Unfair Business Practices (7th Cause of Action) The Unfair Competition Law (UCL) is codified at Business and Professions Code section 17200 et seq.¿ Section 17204 of the UCL provides that a private person who has suffered injury in fact and has lost money or property as a result of the unfair competition may bring a 17200 action.¿ (Bus. & Prof. Code, § 17204.)¿ To bring a UCL claim, a plaintiff must show either an (1) unlawful, unfair, or fraudulent business act or practice, or (2) unfair, deceptive, untrue or misleading advertising. [Citation.]¿ Because the UCL is written in the disjunctive, it establishes three varieties of unfair competitionacts or practices which are unlawful, or unfair, or fraudulent.¿ (Adhav v. Midway Rent A Car, Inc. (2019) 37 Cal.App.5th 954, 970, citations and quotations omitted.)¿ A plaintiff alleging unfair business practices under [Bus. & Prof. § 17200] must state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Malys of California, Inc. (1993) 14 Cal.App.4th 612, 619.) Further, an unfair business practice claim must show the defendants conduct is tethered to an underlying constitutional, statutory or regulatory provision&. (See Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1008, quoting Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1366.) Plaintiffs allege they paid more than the true rental value of the property because of the various defects that decreased its rental value, and that as a result, Defendants received more rental income than they were entitled to. (See FAC ¶ 133.) Plaintiffs further allege that Defendants knowingly leased the Subject Property in a poorly maintained state and preyed on low income tenants. (FAC ¶¶ 131, 133.) Defendants demur to the seventh cause of action on the grounds that the FAC does not allege any facts to show which of Defendants practices were unlawful. Defendants argue that because Plaintiffs do not seek injunctive relief this cause of action should be dismissed. The arguments are not well taken. First, Plaintiffs have identified Defendants unlawful practices, which include but are not limited to: knowingly leasing uninhabitable units at the Subject Property and collecting more rental income than Defendants were entitled to; preying low-income tenants; and violating various statutes such as Civil Code section 1941.1 and 1942.4 and Health & Safety Code section 17920. (See FAC ¶¶ 51, 128, 133, 134.) Second, although injunctive relief is the primary form of relief available under the UCL, it is not the only equitable remedy available. For instance, a plaintiff in a UCL action may recover restitution. (See Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 337.) Here, Plaintiffs seek restitution. Accordingly, the demurrer to the seventh cause of action is OVERRULED. 8. Tenant Harassment (8th Cause of Action) Los Angeles Municipal Code section 45.33 penalizes a landlord who knowingly and willfully harasses a tenant to his or her detriment and harm, and that serves no lawful purpose. Harassment, in this context includes: 2. Failing to perform and timely complete necessary repairs and maintenance required by Federal, State, County, or local housing, health, or safety laws; or failure to follow applicable industry standards to minimize exposure to noise, dust, lead paint, asbestos, or other building materials with potentially harmful health impacts. (LAMC § 45.33(2).) Defendants argue that Plaintiffs do not sufficiently allege the element of intent (knowing and willful harassment). The argument lacks merit. As discussed throughout this ruling, Plaintiffs have alleged numerous uninhabitable conditions. Defendants were made aware of those violations, failed to repair them in a timely manner, and the Subject Property was thereafter referred to for receivership hearings to ensure compliance with habitability laws and ordinances, and a receiver was appointed. It is reasonable to infer that Defendants harassment (i.e., failure to repair the uninhabitable conditions) was willful because Defendants did not timely address those conditions despite receiving repeated complaints. Accordingly, the eighth cause of action is OVERRULED. III. DISCUSSION RE MOTION TO STRIKE A. Legal Standard Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322(b).) On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) The grounds for a motion to strike are limited to matters appearing on the face of the challenged pleading or matters which must or may be judicially noticed. (§ 437, subd. (a); Evid. Code, §§ 451, 452.). (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 20.) B. Application Defendants move to strike the first, second, third, and fourth causes of action in their entirety, the request for attorney fees, and the request for punitive damages. The court addresses these arguments in turn. 1. The First, Second, Third, and Fourth Causes of Action The challenge to the first, second, third, and fourth causes of action is based on the ground that they are duplicative of other causes of action. The court rejected this same argument in overruling Defendants demurrer. Accordingly, the motion to strike the first, second, third, and fourth causes of action on this ground is DENIED. 2. Attorney Fees Except as attorneys fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.¿ (Code Civ. Proc., § 1021.)¿ Attorneys fees are allowable costs under Code of Civil Procedure section 1032 when authorized by contract, statute, or law.¿ (Code Civ. Proc., § 1033.5, subd. (a)(10).)¿¿¿ Here, Civil Code section 1942.4 permits the prevailing party to recover of attorney fees. (See Civ. Code § 1942.4, subd. (b)(2).) Further, Plaintiffs allege that the lease agreements permit the recovery of attorney fees. (See FAC ¶ 77.) Plaintiffs request for attorney fees is properly pleaded. Accordingly, the motion to strike attorney fees is DENIED. 3. Punitive Damages Plaintiffs seek punitive damages against Defendant Simone only in connection with the fourth and sixth causes of action. (See FAC ¶¶ 99, 108, 116, 126.) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (Civ. Code, § 3294, subd. (a).) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Civ. Code, § 3294, subd. (b).) Defendants argue the request for punitive damages is not supported by any allegations showing oppression, fraud, or malice. The court disagrees. Plaintiffs have alleged numerous uninhabitable conditions, Defendants notice of those condition, and Defendants failure to timely abate those conditions. Plaintiffs also allege that Defendants rented units at the Subject Property knowing there were uninhabitable conditions present and further, that Defendants preyed on low-income tenants. The court finds these allegations are sufficient to rise to the level of malice. Accordingly, the motion to strike punitive damages is DENIED. IV. CONCLUSION The demurrer is Overruled. The motion to strike is Denied. Defendants are ordered to serve and file their Answer to the First Amended Complaint within 10 days of the date of this order. Plaintiffs to give notice. Dated: August 29, 2024 Kerry Bensinger Judge of the Superior Court
Ruling
Aug 29, 2024 |24CHCV01641
Case Number: 24CHCV01641 Hearing Date: August 29, 2024 Dept: F43 U.S. Bank Trust National Association vs. Beniamin Shahinyan, et al. Trial Date: N/A MOTION TO QUASH SERVICE OF SUMMONS MOVING PARTY: Defendant Beniamin Shahinyan RESPONDING PARTY: No response has been filed. RELIEF REQUESTED Defendant has requested that the Court quash the service of summons. RULING: Motion is denied without prejudice. SUMMARY OF ACTION This case, filed by Plaintiff U.S. Bank Trust National Association (Plaintiff) on April 30, 2024, is related to the cancellation of a loan. On June 20, 2024, self-represented defendant Beniaman Shahinyan (Defendant) filed a motion to quash service of summons. Defendant, who is now a New York resident, claims that some papers were left in the doorjamb of a friends home in California. Defendant claims that these papers were the service papers for this case. Defendant argues in his motion that this service was improper because there has been no personal service on Defendant, nor was substituted service proper. Defendant also argues that there has been no posting and mailing of the complaint by Plaintiff. Defendant does not attach the service papers to his motion, nor has plaintiff filed any proof of service with the Court. No opposition has been filed to Defendants motion. ANALYSIS The return of process is prima facie evidence of proper service. (Evidence Code § 647; Los Angeles v. Morgan (1951) 105 Cal.2d 726, 731.) Where proof of service exists, the burden is then on the other party to produce evidence that they were not, in fact, served. (See Evidence Code § 604; Palm Property Investments, LLC v. Yadegar 194 Cal.App.4th 1419.) Simply denying receipt of service is not sufficient to overcome the presumption of service. (Palm Property, 194 Cal.App.4th at 1428.) Plaintiff has not yet filed proof of service with the Court and Defendant did not attach the alleged service papers to his motion. Because plaintiff has not yet filed proof of service with the court, the court has not yet acquired jurisdiction over the defendant. Notably, plaintiff has not opposed this motion or otherwise contended that it has effected service. As a result, the court deems this motion premature and will deny it without prejudice. Moving party to give notice.
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