Judge: Bruce G. Iwasaki, Case: 24STCV18487, Date: 2024-10-21 Tentative Ruling
Case Number: 24STCV18487 Hearing Date: October 21, 2024 Dept: 58
Judge Bruce Iwasaki
Hearing Date: October 21, 2024
Case Name: Susana Perez, et al. v.
Francisco Fragoso, et al.
Case
No.: 24STCV18487
Motion: Demurrer
to the Complaint
Moving
Party: Defendant Francisco Fragoso,
as an individual and as trustee of the Francisco Fragoso Trust
Responding Party: Plaintiffs Susana Perez and Reyes Perez
Tentative
Ruling: The Demurrer to
Plaintiff’s Complaint is OVERRULED
Background
This is an
action arising out of an alleged written rental agreement. Plaintiffs Susana
Perez (“Susana”) and Reyes Perez (“Reyes”) (collectively, “Plaintiffs”) are
tenants of an apartment unit, located at 4728 Elizabeth Street, Cudahy CA 90201
(Apartment Unit). Plaintiffs’ Apartment Unit is part of a larger complex owned
by Defendant Francisco Fragoso, as an individual and as trustee of the
Francisco Fragoso Trust, (“Defendant” or “Fragoso”), located at 4720 Elizabeth
Street, Cudahy CA 90201 (Apartment Complex). Plaintiffs agreed to pay monthly
rent to Defendant in exchange for a habitable premises and quiet enjoyment of
their Apartment Unit and the Apartment Complex.
On July 24,
2024, Plaintiffs filed the instant Complaint, alleging causes of action for (1)
breach of contract, (2) negligence, and (3) violation of the tenant
anti-harassment ordinance (Cudahy Municipal Code § 5.14.090).
Defendant
now demurs to each cause of action alleged in the Complaint. Plaintiffs oppose
the demurrer.
The Court
overrules the demurrer.
Demurrer
Requests for Judicial Notice
The Court
may take judicial notice of the official acts of any state, county, or federal
legislative, executive, or judicial department. (Cal. Evid. Code § 452(c).)
Further, the Court may also take judicial notice of the records in the instant
action before the Court, or in any other action pending in the same Court, or
any other court of record in the U.S. (Cal. Evid. Code § 452(d); See Frommhagen
v. Bd. of Supervisors of Santa Cruz Cnty. (1987) 197 Cal.App.3d 1292, 1299
(“In ruling on a demurrer based on res judicata, a court may take judicial
notice of the official acts or records of any court in this state.
[Citations]”).)
Accordingly, the Court GRANTS
Defendant’s request to take judicial notice of court records from a prior
judgment of the Superior Court of California, County of Los Angeles, in case
number 23NWUD02404, Francisco Fragoso v. Susuna Vasquez Gutierrez,
finding that Fragoso breached the warranty of habitability and awarding damages
to Susana in the form of reduced rent on a retroactive and proactive basis,
attached to Defendant’s request as Exhibit 1.
Meet and Confer
Prior to
filing a demurrer or a motion to strike, the demurring or moving party is
required to meet and confer with the party who filed the pleading demurred to
or the pleading that is subject to the motion to strike for the purposes of
determining whether an agreement can be reached through a filing of an amended
pleading that would resolve the objections to be raised in the demurrer. (CCP
§§ 430.41 and 435.5.) The demurring party may satisfy this requirement by
filing a verified declaration stating either that the parties met and conferred
but did not reach an agreement resolving the objections raised in the demurrer,
or that the party who filed the pleading subject to the demurrer failed to
respond to the meet and confer request or otherwise failed to meet and confer
in good faith (CCP § 430.41(a)(3).)
On August
14, 2024, Defendant’s Counsel met and conferred with Plaintiffs’ Counsel
regarding the issues raised in the demurrer. (Sandoval Decl., ¶ 5.) On August
21, 2024, Defendant’s Counsel followed up by email, and Plaintiffs’ Counsel
responded that Plaintiffs disagreed with Defendant’s position and stated that,
if Defendant still believes that Plaintiffs’ Complaint is still deficient, Defendant
should file a demurrer. (Id., ¶ 6-7.) Accordingly, Defendant has
satisfied his burden of establishing good faith compliance with the meet and
confer requirement.
Objection to reply
Plaintiff object
to Defendant’s reply memorandum as untimely.
The reply was filed on October 14, 2024 and, according to the proof of
service, served by email and U.S. mail the same day. The objection is overruled.
Legal Standard
A demurrer is an objection to a
pleading, the grounds for which are apparent from either the face of the
complaint or a matter of which the court may take judicial notice. (Code Civ.
Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d
311, 318.) The purpose of a demurrer is to challenge the sufficiency of a
pleading “by raising questions of law.” (Postley v. Harvey (1984) 153
Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of
determining its effect, its allegations must be liberally construed, with a
view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The
court “ ‘ “treat[s] the demurrer as admitting all material facts properly
pleaded, but not contentions, deductions or conclusions of fact or law . . ..”
’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) “The only
issue involved in a demurrer hearing is whether the complaint, as it stands,
unconnected with extraneous matters, states a cause of action.” (Hahn v.
Mirda (2007 147 Cal.App.4th 740, 747.)
Analysis
Res Judicata
Defendant
demurs to the Complaint on the grounds that each of Plaintiffs’ claims in the
instant action are barred by the doctrine of res judicata.
A demurrer for sufficiency tests
whether the complaint states a cause of action. (Hahn supra, 147
Cal.App.4th at 747.) Accordingly, a demurrer for sufficiency may lie where the
facts alleged in the complaint or matters judicially noticed show that the
plaintiff is seeking relief from the same defendant on the same cause of action
as in a prior action, or is asserting an issue decided against plaintiff in the
prior action. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.App.4th
788, 792 (holding plaintiff’s wrongful death action barred by her prior
voluntary dismissal of loss of consortium action against same defendant).)
Defendant contends that Plaintiffs’
claims are barred from re-litigation because the parties are in privity, and
because Plaintiffs are improperly seeking the same relief that was previously
awarded by a court in this same jurisdiction to address the harms alleged in
the complaint. (See RJN, Exh. 1.) Defendant Fragoso refers to a prior
Unlawful Detainer action that he initiated against Plaintiffs. (Ibid.) Fragoso’s
claim was unsuccessful, and the Court entered judgment against Fragoso in the
amount of $0. (Id., “Order to Show Cause Re: Compliance with Judgment.”)
The UD court also made the following findings of fact:
The premises involved in this
special proceeding is 4728 ½ Elizabeth Street, Cudahy, California 90201
(“Premises”). The court finds that [Fragoso] substantially breached the
warranty of habitability by reason of mold in the Premises that materially
affects health and safety including that of [Susana] and other occupants of the
Premises including [Susana’s] husband and children. [Citation.] [Fragoso]
received notice of the mold, acknowledged the defect, but failed to repair or
correct the defect, such remediation efforts as described in the evidence at
trial being insubstantial and ineffective. The substantial breach of the
warranty continued due to this defect as of and through trial.
(Id., “Ruling on Submitted Matter,” p. 1-2.)
According to these findings, the UD
court also ordered that Defendant reduce Plaintiffs’ rent from $1,740/month to
$1/400/month for the three months preceding the trial date and “until the
defects constituting the breach of warranty are repaired and corrected.’” (Ibid.)
Based on this prior judgment, Defendant claims that “although [Susana] has
pleaded differently-named causes of action, the underlying facts, damages, and
remedies are identical in both lawsuits. Plaintiffs have already received
compensation for their damages and the necessary repairs have been made.”
(Demurrer, p. 9:3-5.)
Plaintiffs
contend that res judicata does not apply because they are not seeking the same
damages based on the same set of facts. California Courts recognize that “a
judgment in unlawful detainer usually has very limited res judicata effect and
will not prevent one who is dispossessed from … adjudicate[ing] other legal and
equitable claims between the parties.” (Vella v. Hudgins (1977) 20
Cal.3d 251, 255.) Unlawful Detainer cases are inherently about possession of
real property, but possession is not at issue in this case.
Further, generally, the only sorts
of claims that have a preclusive effect upon a Tenant are those affirmative
defenses that were provided “‘full and fair’ litigation” during the course of
the Unlawful Detainer proceedings. (Vella, supra, at p. 256-57.)
However, the only record of the prior judgment that Defendant submitted provides
only a cursory overview of the issue of breach of habitability. Accordingly, to
the extent that the prior court litigated any of the issues in this case,
Plaintiffs claim that Defendant has not met his “burden of proving that the
requirements for application of res judicata have been met.” (Id., at p.
257.) Additionally, Plaintiffs’ instant complaint only seeks forms of relief
that “they were not permitted to seek” during the Unlawful Detainer case, and,
therefore, such issues “were certainly not permitted a ‘full’ form of
litigation beyond the summary proceeding of the Unlawful Detainer action.”
(Opp. 11-14.)
Defendant Fragoso has not met his
burden to establish that Plaintiffs’ claims are barred by res judicata. It is
true that the UD court found sufficient habitability defects to refuse to award
the landlord possession and ordered a reduction in rent. However, as Plaintiffs
accurately note, possession of real property and rent are not issues in this
case, so the measures of damages in this case are not duplicative. Also, the
issue of damages that can be raised by a tenant in a UD case only applies to
the period of unpaid rent sought by the Landlord. Therefore, any other period
of rent abatement for uninhabitability cannot be adjudicated in a UD and cannot
result in issue preclusion or claim preclusion. (Landros v. Pankey
(1995) 39 Cal.App.4th 1167, 1174.)
Based on the foregoing, Defendant
has not successfully proven the application of either issue preclusion or claim
preclusion to Plaintiffs’ present suit. (DKN Holdings v. Faerber (2015)
61 Cal.4th 813, 824 [requirements for issue and claim preclusion]; Struiksma
v. Ocwen Loan Servicing LLC (2021) 66 Cal.App.5th 546, 557 [“[Tenant’s] claims
did not have to be raised in the unlawful detainer proceeding and are not
precluded by it”].)
Accordingly, Defendant’s Demurrer
to all causes of action in Plaintiffs’ Complaint based on res judicata is
OVERRULED.
Third Cause of Action for Violation of the Tenant
Anti-Harassment Ordinance
Defendant
also demurs to the Complaint on the grounds that Plaintiffs fail to allege
sufficient facts to establish a claim for violation of the Cudahy Municipal
Code’s tenant anti-harassment ordinance. (Id., §
5.14.090(2).)
The Cudahy
Municipal Code’s tenant anti-harassment ordinance provides as follows:
(2) Anti-Harassment. No
landlord, or any person, acting as a principal or agent, offering a rental unit
for rent, or any contract, subcontractor or employee of the landlord shall,
with respect to property used as a rental unit under any rental agreement or
other lawful tenancy, do any of the following:
(a) interrupt, terminate, or fail
to provide housing services required by rental agreement or by federal, state,
or local housing, health, or safety laws, or threaten to do so, or violate
California Civil Code Sections 789.3 and 1940.2
(b) Do any of these actions in bad
faith:
(i) Fail to perform repairs and
maintenance required by rental agreement or by federal, state, or local laws;
(ii) Fail to exercise due diligence
in completing repairs and maintenance once undertaken;
(iii) Fail to follow appropriate
industry, repair, containment, or remediation protocols designed to minimize
exposure to noise, dust, lead, paint, mold, asbestos, or other building
materials with potentially harmful health impacts;
(iv) Conduct elective renovation
or construction of rental unit for the purpose of harassing a tenant;
(v) Refuse to acknowledge or
accept receipt of a tenant’s lawful rent payment as set forth in a rental
agreement, by usual practice of the parties, or in a notice to pay rent or
quit;
…
(Id., § 5.14.090(2).)
Here, the
Court finds that Plaintiffs asserted sufficient factual allegations in support
of their third cause of action, as follows:
The Defendants would harass, menace
and vex the Plaintiffs by bulldozing the personal space for the [Apartment
Unit], damaging Plaintiffs personal property and intimidating the Plaintiffs
and their family, while also destroying their personal property, all in an
effort to have Plaintiffs vacate the [Apartment Unit]. This conduct was a
breach of contract, specifically the breach of quiet enjoyment of the premises,
and breach of local anti-tenant-harassment ordinance.
(Complaint, ¶ 12.)
As a result of Plaintiffs making
complaints to the Defendants and various government agencies for proper
remediation of the Premises, Defendants harassed Plaintiffs by attempting to
cause the Plaintiffs to quit possession of the Premises, by failing to make
necessary repairs, failing to properly follow industry standards in making
repairs, elective renovation for the purpose of harassing the tenant.
(Complaint, ¶ 30.)
Defendant’s only contention is that
these allegations need not be accepted as true because they are conclusory and
unsupported by sufficient factual foundation. This contention is not
meritorious. Plaintiffs’ allegations cannot be viewed as vague because they put
Defendant on notice of the conduct Plaintiff intends to prove at trial. (Youngman
v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245 (a plaintiff “is
required … to set forth the essential facts of his case with reasonable
precision and with particularity sufficient to acquaint a defendant with the
nature, source and extent of his cause of action”); Berstein v. Piller (1950)
98 Cal.2d 441, 443-44 (mere “recitals” or legal conclusions that leave the
material facts to “surmise” are insufficient and subject to demurrer).)
Accordingly, Defendant’s Demurrer
to Plaintiffs’ third cause of action based on sufficiency is overruled.
Conclusion
Defendant’s
demurrer to the complaint is overruled in its entirety. Defendant shall file and serve an Answer to the
Complaint on or before November 12, 2024.