On December 22, 2014 aComplaint,Petitionwas filedinvolving a dispute betweenMidfirst Bank,andJames Gordon Nicholson Estate,James Nicholson Estate,John Doe 1-10,Nys Taxation And Finance,Usa,for Foreclosure (residential mortgage)in the District Court of Ontario County.
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INDEX NO. 111915(FILED: ONTARIO COUNTY CLERK 1272272014 12:38 PMNYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/22/2014 201412220137 Index # : 111915 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONTARIO MidFirst Bank Index #: Filed: Plaintiff, -against- SUMMONS James R. Nicholson, as Administrator and Heir of The Estate of James Nicholson a/k/a James Gordon Nicholson, Colby J. Plaintiff designates Ontario Nicholson, Heir to the Estate of James Nicholson a/k/a James County as the place of trial. Gordon Nicholson, Kailey A. Reger, Heir to the Estate of James Venue is based upon the Nicholson a/k/a James Gordon Nicholson, New York State County in which the Department of Taxation and Finance, United States of America mortgaged premises is and "JOHN DOE #1" through "JOHN DOE #10", the last ten situated. names being fictitious and unknown to the plaintiff, the person or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the Complaint, Defendants. TO THE ABOVE NAMED DEFENDANT(S): YOU ARE HEREBY SUMMONED to answer the Complaint in this action and to serve a copy of your Answer or, if the Complaint is not served with this Summons, to serve a Notice of Appearance on the attorneys for the plaintiff within twenty (20) days after service of this Summons, exclusive of the day of service; or within thirty (30) days after service is complete if this Summons is not personally delivered to you within the State of New York; or within sixty (60) days if it is the United States of America. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. NOTICE YOU ARE IN DANGER OF LOSING YOUR HOME If you do not respond to this summons and complaint by serving a copy of the answer on the attorney for the mortgage company who filed this foreclosure proceeding against you and filing the answer with the court, a default judgment may be entered and you can lose your home. Speak to an attorney or go to the court where your case is pending for further information on how to answer the summons and protect your property.201412220137 Index #: 111915 Sending a payment to your mortgage company will not stop this foreclosure action. YOU MUST RESPOND BY SERVING A COPY OF THE ANSWER ON THE ATTORNEY FOR THE PLAINTIFF ORTGAGE COMPAN AND FILING THE ANSWER WITH THE COURT. Dated: Bay Shore, New York FRENKEL, LAMBERT, WEISS, December 9, 2014 WEISMAN & GORDON, LLP Attorneys for Plaintiff 53 Gibson Street Bay Shore, New York 11706 (631) 969-3100 Our File No.: 01-073677-F00 TO: James R. Nicholson, as Administrator and Heir of The Estate of James Nicholson a/k/a James Gordon Nicholson 545 Wahlmont Drive Webster, NY 14580 and/or 7390 Rhine Street, Naples, NY 14512 Colby J. Nicholson, Heir to the Estate of James Nicholson a/k/a James Gordon Nicholson 545 WahlImont Drive Webster, NY 14580 and/or 7390 Rhine Street, Naples, NY 14512 Kailey A. Reger, Heir to the Estate of James Nicholson a/k/a James Gordon Nicholson 1221 Wahl Road Webster, NY 14580 and/or 7390 Rhine Street, Naples, NY 14512 United States of America New York State Department of Taxation and Finance201412220137 — Index #: 111915 SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF ONTARIO MidFirst Bank Plaintiff, COMPLAINT -against- James R. Nicholson, as Administrator and Heir of The Estate of James Nicholson a/k/a James Gordon Nicholson, Colby J. Nicholson, Heir to the Estate of James Nicholson a/k/a James Gordon Nicholson, Kailey A. Reger, Heir to the Estate of James Nicholson a/k/a James Gordon Nicholson, New York State Department of Taxation and Finance, United States of America and "JOHN DOE #1" through "JOHN DOE #10", the last ten names being fictitious and unknown to the plaintiff, the person or parties intended being the persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the Complaint, Defendants. The plaintiff, by its attorneys, Frenkel, Lambert, Weiss, Weisman, & Gordon, LLP, complaining of the defendants herein allege, upon information and belief, as follows: AS A FIRST CAUSE OF ACTION 1 That the plaintiff, MidFirst Bank, at all times hereinafter mentioned was and still is a Federally Chartered Savings Association chartered under the laws of the United States of America. 2 On or about June 16, 1999, James Nicholson a/k/a James Gordon Nicholson executed and delivered to Source One Mortgage Corporation a note dated June 16, 1999 whereby James Nicholson a/k/a James Gordon Nicholson promised to pay the principal sum of $69,939.00. 3 On or about June 16, 1999, James Nicholson a/k/a James Gordon Nicholson executed and delivered to Source One Mortgage Corporation a mortgage (hereinafter "mortgage") in the principal sum of $69,939.00, with interest, mortgaging the premises known as 7390 Rhine Street, Naples, NY 14512 (hereinafter "premises") as collateral security for the note. The mortgaged premises is more fully described in EXHIBIT "A" annexed hereto. 4 The mortgage was duly recorded in the Office of the Clerk of the County of Ontario on June 17, 1999 in Liber 1109, Page 13 and the recording tax was duly paid. 5 That plaintiff is in possession of the original note with a proper endorsem*nt and/or allonge and is therefore, the holder of both the note and mortgage, which passes as incident to the note.201412220137 Index #: 111915 6 Pursuant to the note, James Nicholson a/k/a James Gordon Nicholson promised to make consecutive monthly payments of principal and interest each month, in accordance with the terms of the note, commencing August 1, 1999 and on the first day of each succeeding month up to and including July 1, 2029 when the entire principal amount and accrued interest shall be due and payable. 7 Pursuant to the terms of the mortgage, in addition to principal and interest, the mertgagee can collect and charge to the loan al] amounts necessary to pay for taxes, assessments, leasehold payments or ground rents (if any), hazard insurance and mortgage insurance. 8 The mortgage further provides that in case of default in the payment of any principal or interest or any other terms, covenants or conditions of the mortgage, the holder of the mortgage could declare the entire indebtedness secured by the mortgage immediately due and payable, and the holder of the mortgage is empowered to sell the mortgaged premises according to law. 9 On March 3, 2014, James Nicholson a/k/a James Gordon Nicholson passed away and thereafter, his Estate failed to comply with the terms, covenants and conditions of said note and mortgage by failing and omitting to pay, to the plaintiff, payments due on April 1, 2014 and said default has continued for a period in excess of fifteen (15) days. 10. Pursuant to the terms of the note and mortgage, the plaintiffhas elected and does hereby elect to declare the entire principal balance to be due and owing. 11. That there is now due and owing to the plaintiff under said note and mortgage the principal sum of $51,413.62 with interest thereon from March 1, 2014, plus late charges ifapplicable pursuant to the terms of the note and advances made by the plaintiff on behalf of the defendant(s) and any other charges due and owing pursuant to the terms of the note and mortgage. 12. Plaintiff shall not be deemed to have waived, altered, released or changed the election hereinbefore made by reason of payment after the date of commencement of this action of any or all of the defaults mentioned herein, and such election shall continue and remain effective. 13. In order to protect its security, the plaintiff may be compelled, during the pendency of this action, to pay sums for premiums on insurance policies, real estate taxes, assessments, water charges and sewer rents which are or may become liens on the mortgaged premises, and other charges which may be necessary for the protection of the mortgaged premises, and the plaintiff prays that any sum or sums so paid, together with interest from the date of payments, shall be added to the plaintiff's claim and be deemed secured by said note and mortgage and adjudged a valid lien on the mortgaged premises, and that the plaintiff be paid such sums, together with interest thereon, out of the proceeds of the sale of the mortgaged premises. 14, Upon information and belief all the defendants herein have or claim to have some interest in or lien upon said mortgaged premises or some part thereof which interest or lien, if any, has accrued subsequent to the lien of plaintiff's mortgage, or has been paid or equitably subordinated to plaintiff's mortgage, or been duly subordinated thereto. The reason for naming said defendants is set forth in "Schedule A" that is attached to this complaint.201412220137 Index #: 111915 15. That there are no pending proceedings at law or otherwise to collect or enforce said note and mortgage. 16. Plaintiff has complied with all of the provisions of Banking Law §595-a and any rules and regulations promulgated thereunder, Banking Law §§6-1 and 6-m, if applicable. 17. Upon information and belief, plaintiff has complied with the provisions of Real Property Actions and Proceedings Law §1304 and §1306 unless exempt from doing so. 18. That the plaintiff is now the owner and holder of the said note and mortgage securing the same or has been delegated the authority to institute a mortgage foreclosure action by the owner and holder of the subject mortgage and note or is the holder of the note and mortgage and has been delegated the authority to institute a mortgage foreclosure action by the owner of the note and mortgage. 19. If plaintiff is not the owner and holder of the subject note and mortgage, plaintiff has been delegated the authority to institute a mortgage foreclosure action pursuant to statute and/or delegation of authority by the owner of the subject note and mortgage. 20. The sale of the mortgaged premises under foreclosure herein is subject to any state of facts that an inspection of the premises would disclose, any state of facts an accurate survey would show, and to covenants, restrictions and easem*nts, if any, of record affecting said mortgaged premises and any violation thereof, any equity of redemption of the United States of America to redeem the premises within 120 days from the date of sale, prior mortgages and liens of record, ifany, any rights of tenants or persons in possession of the subject premises, and to zoning regulations and ordinances of the city, town or village in which said mortgaged premises lies and any violations thereof. 21. In the event that the plaintiff possesses any other lien(s) against the mortgaged premises either by way of judgment, junior mortgage or otherwise, plaintiffrequests that such other lien(s) not be merged in plaintiff's cause(s) of action set forth in this Complaint, but that plaintiff shall be permitted to enforce said other lien(s) and/or seek determination of priority thereof in any independent action(s) or proceeding(s), including, without limitation, any surplus money proceedings. AS AND FOR'A SECOND CAUSE OF ACTION 22, The plaintiff repeats and realleges each and every allegation contained in paragraphs designated 1 through 21. 23. The mortgage provides that in the event of default, the plaintiff may recover all costs, including reasonable attorneys’ fees, disbursem*nts, and allowances provided by law in bringing any action to protect its interest in the premises, including foreclosure of the mortgage.201412220137 Index #: 111915 WHEREFORE, the plaintiff demands judgment against the defendant(s) as follows: a) That the defendants and all persons claiming under them or any of them, subsequent to the commencement of this action and to the filing of the Notice of Pendency of this action, may be barred and foreclosed of all right, title, claim, lien and equity of redemption in the mortgaged premises; b) That the mortgaged premises be sold in one parcel according to law subject to any state of facts an accurate survey would show, any covenants, easem*nts, encroachments, reservations, and restrictions, violations and agreements of record, zoning regulations and ordinances of the city, town, or village; wherein the premises is located, any state of facts a physical inspection will disclose, rights of tenants and other persons in possession of the mortgaged premises, prior judgments, liens and mortgages of record and any and all rights of the United States of America to redeem the subject premises; c) That the premises be sold in accordance with Title 28, Section 2410 of the United State Code preserving all rights of redemption, if any, of the United States of America; d) That the monies received from the sale be brought into Court and that plaintiff be paid the amount adjudged to be due it with interest thereon to the time of such payment, together with late charges, any sums paid by the plaintiff for real estate taxes, assessments, water charges and sewer rents, insurance premiums, sums expended for the protection or preservation of the property, together with attorneys’ fees as demanded in the second cause of action, the costs and disbursem*nts of this action and any other necessary expenses to protect the lien of the mortgage to the extent that the amount of such monies applicable thereto will pay the same; e) That this Court, if requested, appoint a receiver of the rents and profits of said premises, during the pendency of this action with the usual powers and duties; f That the defendant(s) obligated under the note be adjudged to pay any deficiency which may remain after applying all of such monies as aforesaid in accordance with the law and provided that plaintiff have execution therefore, unless the debt has been discharged in a Bankruptcy petition or that said defendant(s) obligated under the note have been relieved of responsibility for any such deficiency. g) That in the event plaintiff possesses any other lien(s) against said mortgaged premises either by way of judgment, junior mortgage or otherwise, plaintiff requests that such other lien(s) shall not be merged in plaintiff's cause(s) of action(s) set forth in the Complaint but that plaintiff shall be permitted to enforce said other lien(s) and/or seek determination or priority thereof in any independent action(s) or proceeding(s), including, without limitation, any surplus money proceedings; h) That plaintiff have such other and further relief in the mortgaged premises as may be just and equitable. Dated: Bay Shore, New York December 9, 2014 Frenkel, Lambert, Weiss, Weisman, & Gordon, LLP By: Todd Félasco Attorneys for Plaintiff 53 Gibson Street Bay Shore, New York 11706 (631) 969-3100 Our File No.: 01-073677-F00oo201412220137 Index #: 111915 a esa a WEB TITLE IRS 500-A Canal View Boulevard, Rochester, NY 14623 P: (888-250-9056 / F: 888-250-9057) www.webtitle.us Title No.: WIA-14-035807 SCHEDULE A DESCRIPTION OF MORTGAGED PREMISES ALL THAT TRACT OR PARCEL OF LAND, situate in Town Lot 2, 2nd and 3rd Range of Lots, Township7, Range 4 af the Phelps and Gorham Purchase m the Town of Naples, County of Ontario, State of New York, bounded and described as follows: Beginning at a railroad spike in the centerline of Rhine Street (49.50 feet wide) at the northeast comer of lands raw or formerly owned by Giepp, (see Liber 877 of Deeds at page 287), said point also being approximately 666,00 feet northerly of the intersection of the centerline of Rhine Street with the centerline of County Road # 12; thence (1) N 79°-25'-00" W siong the north line of said Giegy p and passing through an iron pipe 27.25 feet distanta total of 347,54 feet to a point; thence (2) N B31 oe" W adistance of 710.34 feet to a peint; thence (3) S 789-5530" E along the south line of lands now or formerly owned by Riesenberger, (sce Liber 445 of Deeds at page 512) and passing through an irom pipe 319.44 feet distant a total distance of 350.00 feet to a railroad spike in the centerline of Rhine Street; thence (4) § 24°-49'.50" E along the centerline of Rhine Street a distance 6f365.18 feet to a railroad spike; thence (5) 8 20°-16"50" E along the centerline of Rhine Street a distance of 209.95 fect to a railroad spike; thence (6) $ 14°-10-00" B along the centerline of Rhine Street a distance of 153.12 feet fo the point of beginning. Comprising, an area of 5.000 acres seconfing to-a survey completed by Jefitey L. Dispenza, L.S., dated March 15, 1999, being File No. 2816. * Premises: 7390 Rhine Street, Naples, NY 14512 Tax Map/Parcel ID No. Section: 194.00 Block: 3 Lot: 60.000201412220137 Index #: 111915 Schedule A Party Name Description James R. Nicholson, as Administrator and Administrator and Heir of The Estate of James Heir of The Estate of James Nicholson Nicholson a/k/a James Gordon Nicholson a/k/a James Gordon Nicholson Colby J. Nicholson, Heir to the Estate of Heir to the Estate of James Nicholson a/k/a James Nicholson a/k/a James Gordon James Gordon Nicholson Nicholson. Kailey A. Reger, Heir to the Estate of Heir to the Estate of James Nicholson a/k/a James Nicholson a/k/a James Gordon James Gordon Nicholson Nicholson United States of America Possible unpaid Federal Estate Taxes New York State Department of Taxation Possible unpaid New York State Taxes and Finance20141 22201 37 Index * 111915 ~ - aN HELE Go HOMEOWNERS (X FORECLOSURE tor 3NEW YORK STA LAW R EQUIRES THAT & SEND YOU THIS NOTICE ABOUT Ts . FORECLOSURE PROCESS. F EAD tT FUL! Ly ot. - sUM AONS AND COMPLAINT - . =YOU ARE IN DANGER OF LOSING YOUR HOME, [ c& YOU SAlL TO RESFOND 70 TRE LsSUMMONS AND COR, LAINE IN THIS FGRECLOSURE ACTION; YOU MAY LOSE,YOUR HOME. PLE: SEIREAD THE SUMMONS ANDO COMPLAINT AREFULLY. YOUSHGULO [MMEDIAT Y-CONTACT AN a& TTORNEY OF YOUR LOCAL LEGAL AtDOFFICE TO OBTAIN ADVICE ON HOW FO PROTECT ee 4 - ,SQURCES oF INFORMATION ANO ASSISTANCE - - -The. S$State enceureges you te becomes informed zbout your. options inforeclosure. (mn addition ta seeking essistence from en attorney orl ce, th re governit ot agemeci and non efit crzan s tha oumae ¥ contact for infarmation about oo ible cntiors, including trying te oreWith your lender during this groc -re| ean e= TY you, you me i the hefpline maintainby 2 New York Sts Department ot Finencial Services’ 2t 1-877 -22 S697 orvisit the Desartme Wwe = at btte://wewnw.¢ ny.gov. FORECLOSUR cE SCUE SCAMS = Be 2,Bec ares erst ul ef peccle who approach you With offs sto “save your home. There 2ere individuals whe watch for notice f foreciasu actiens im.order to unt ily 2 fuf about anyorc from 2 hom woe eu shou! emely ¢su er nee Ti ea / st {Os t you pay emey gn over you a4 requir znyve ings.such vices tee erore to € terimto 2
Case Info
Judge
Frederick G ReedTrack Judge’s New Case
Case No.
(Subscribe to View)
Document Filed Date
December 22, 2014
Case Filing Date
December 22, 2014
County
Category
Foreclosure (residential mortgage)
Status
RJI Pending
Parties
FALASCO, TODD CAttorney for the Plaintiff
FEMMINELLA, NICOLE PAttorney for the Plaintiff
James Gordon Nicholson ESTATEDefendant
James Nicholson ESTATEDefendant
JOHN DOE 1-10Defendant
MidFirst BankPlaintiff
NYS Taxation and FinanceDefendant
ROACH, MARY KEEFEAttorney for the Defendant
USADefendant
KRISTIN BOLDUCAttorneys for Plaintiffs
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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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