Judge: Armen Tamzarian, Case: 21STCV43425, Date: 2023-01-17 Tentative Ruling

Case Number: 21STCV43425    Hearing Date: January 17, 2023    Dept: 52

Tentative Ruling:

Cross-Defendant LA Solar Group, Inc.’s Demurrer and Motion to Strike Portions of First Amended Cross-Complaint

Requests for Judicial Notice

            Cross-defendant LA Solar Group, Inc. requests judicial notice of three exhibits.  All three exhibits are court records subject to judicial notice under Evidence Code § 452(d)(1).  The requests for judicial notice are granted.

I. Demurrer

            Cross-defendant LA Solar Group, Inc. demurs to cross-complainant Rumina Balasanyan’s first amended cross-complaint based on the doctrine of res judicata. 

“Res judicata or claim preclusion precludes the relitigation of a cause of action that previously was adjudicated in another proceeding between the same parties or parties in privity with them.  [Citation.]  Res judicata applies if (1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.  [Citation.]  Res judicata bars the litigation not only of issues that were actually litigated but also issues that could have been litigated.”  (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202.) 

“It is elementary that ‘[t]he doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.  It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.’ ”  (Nakash v. Superior Court (1987) 196 Cal.App.3d 59, 67.)  Res judicata applies to judgments in small claims court.  (Allstate Ins. Co. v. Mel Rapton, Inc. (2000) 77 Cal.App.4th 901, 914.) 

The Small Claims Action

On April 9, 2021, Balasanyan filed a small claims action against LA Solar Group, Inc.  (RJN, Ex. 1.)  In her claim form, she asserted LA Solar owed her $10,000 “because Defendant improperly installed solar panels on my roof and damaged my roof.”  (Id., ¶ 3.a.)  In response to the question asking how she calculated the amount owed, she stated, “Because of the Defendant my roof was damaged and it will cost $18,000 to replace my roof.  I would also like the panels on my roof to be removed by the Defendant.”  (Id., ¶ 3.c.)

In the judgment, the small claims court ruled, “By a preponderance of the evidence, [Balasanyan] established [LA Solar’s] solar install was done in a non-workmanlike manner, which thereafter resulted in damages to [Balasanyan] (damages to the roof and interior of [Balasanyan’s] house, etc.)”  (RJN, Ex. 2, p. 1.)  The judgment further states, “As to whether the solar panels stay or go from [Balasanyan’s] house, the court makes no orders at this time.”  (RJN, Ex. 2, p. 2.) 

Allegations of the First Amended Cross-Complaint

Balasanyan’s cross-complaint alleges a sole cause of action for trespass.  She alleges that after she won the maximum amount recoverable in small claims, she demanded that LA Solar “remove the solar panel system from [her] roof so that roof repairs and repairs inside the Home could be made.”  (FACC, ¶ 10.)  LA Solar “refused to remove the solar panel system.”  (Ibid.)  Balasanyan sought bids from contractors to remove the panels and fix her roof.  (¶ 11.)  She ultimately found a contractor willing to remove the panels.  (Ibid.) 

Balasanyan further alleges that due to LA Solar’s conduct, she “has suffered and will continue to suffer damages, including but not limited to, the cost of the removal and storage of the solar panel system incurred after the small claims judgment, increased cost of repair of the roof and inside of the home resulting from the failure of cross-defendants to remove the solar panels when the demand was first made, the increased costs for substitute housing during the repair of the interior of the home, $5000.00 for the repair of the inside of the home not covered by insurance (the deductible) and storage costs for furniture while the inside of the home is being repaired.”  (FACC, ¶ 13.)

Analysis

Res judicata bars the first amended cross-complaint’s cause of action for trespass.  “Where a trespass consists of a physical entry upon the lands of another and taking possession thereof under such circumstances as to indicate an intention that the trespass shall be permanent, the law may regard the wrong done in such case as complete at the time of the entry, and allow recovery in a single action of all damages resulting therefrom, including prospective as well as past damages.”  (Kafka v. Bozio (1923) 191 Cal. 746, 750 (Kafka).)  In contrast, “Where continuing or recurring injury results from a wrongful act or from a condition wrongfully created and maintained, such as a continuing nuisance or trespass, there is not only a cause of action for the original wrong arising when the wrong is committed, but separate and successive causes of actions, for the consequential damages arise as and when such damages are from time to time sustained.”  (Id. at p. 751.) 

In Kafka, the California Supreme Court found the plaintiff’s claim constituted a continuing nuisance with successive causes of action.  The California Supreme Court noted, “The sinking of the foundation wall has continued, and the encroachment of defendant’s building upon plaintiffs’ lot has progressively increased.”  (Kafka, supra, 191 Cal. at p. 748.)  Kafka further stated, “[T]he plaintiff herein has elected to treat the nuisance, not as a permanent injury to be fully compensated in damages, but as a temporary wrong to be abated.”  (Id. at p. 752.)

In contrast with Kafka, Balasanyan alleges a single permanent trespass to her property.  LA Solar installed a solar panel system on her roof, a single and discrete event.    Balasanyan brought an action in small claims to recover damages for that event.  Balasanyan does not allege further trespasses, such as continually increasing encroachment. 

Cross-complainant argues this case falls into an exception to res judicata recognized by the Supreme Court of California:

While it is true that as a general rule a judgment is a bar as res judicata not only as to a subsequent action on the same matter actually determined, but also as to all issues that might have been litigated as incident to or essentially connected with the subject matter of the litigation and every matter coming within its legitimate purview, [citations]. it is also true that that only is adjudged in a former judgment which appears upon its face to have been adjudged or which was actually and necessarily included therein or necessary thereto.  [Citation.]  And when it affirmatively appears that an issue was not determined by the judgment, it obviously is not res judicata upon that issue.  A judgment is not an adjudication as to matters which the court expressly refrains from determining.

(Stark v. Coker (1942) 20 Cal.2d 839, 842–843.)

This exception does not apply.  Though the small claims court noted it was not addressing the question of whether the solar panels would “stay or go,” no further damages could have been awarded for that.  Plaintiff elected to proceed in small claims and recovered all damages she suffered from LA Solar’s installation of solar panels.  Refusing to remove the solar panels is not a new act giving rise to a new cause of action.  It was merely a refusal to correct the violation of the same primary right and cause of action that arose from installing the solar panels.

Balasanyan also contends res judicata does not apply because she could not seek the remedy of ordering removal of the solar panels.  Res judicata does not apply when “‘[t]he plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action, and the plaintiff desires in the second action to rely on that theory or to seek that remedy or form of relief.’ ”  (Le Parc Community Assn. v. Workers’ Comp. Appeals Bd. (2003) 110 Cal.App.4th 1161, 1170 (Le Parc).)

Cross-complainant’s reliance on Le Parc is misplaced for two reasons.  First, in this action she does not seek an order requiring LA Solar to remove the solar panels.  She found someone to remove the solar panels.  (FACC, ¶ 11.)  She prays only for damages.  (FACC, prayer ¶¶ 1-4.) 

Second, Balasanyan voluntarily chose to bring the first action in small claims.  She could have brought her causes of action as a civil action.  Had she done so, the superior court would have had jurisdiction to order all remedies or forms of relief she sought.  In Le Parc, the plaintiff had two mutually exclusive remedies for “two distinct primary rights: the statutory right to prompt, certain compensation for all work-related injuries regardless of fault and the common law right to be free of his employer's negligence in maintaining his work environment.”  (Le Parc, supra, 110 Cal.App.4th at p. 1172.)  “The Legislature… established a statutory scheme that authorizes proceedings in different tribunals affording different remedies that are intended to be cumulative.  Indeed, these different forms of relief cannot be sought in a single proceeding: The superior court lacks jurisdiction to entertain Curren’s basic claim for benefits under the workers’ compensation laws; tort damages are not available in a workers’ compensation proceeding.”  (Id. at p. 1174.)  Balasanyan, however, split the same cause of action for relief she could have achieved in a single proceeding in superior court. 

Disposition

            Cross-defendant LA Solar Group, Inc.’s demurrer to the first amended cross-complaint is sustained without leave to amend.

II. Motion to Strike

            Cross-defendant LA Solar Group, Inc. moves to strike two portions of the first amended cross-complaint related to punitive damages.  Because the court sustains the demurrer without leave to amend, the motion to strike is moot.