Judge Deirdre Hill, Case 19TRCV00434 2023-01-31 Tentative Ruling

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The motion is GRANTED. Defendant is ordered to file the cross-complaint within five days.

On May 16, 2019, plaintiff Jeff Widmann filed a complaint against Edward Leung, ind. and as trustee for Leung Edward T. Trust for (1) breach of contract, (2) breach of implied covenant of quiet enjoyment, (3) breach of covenant of good faith and fair dealing, (4) nuisance, (5) negligence, and (6) unfair business practices in violation of Bus. & Prof. Code §17200.

On August 7, 2019, plaintiff filed a FAC. Plaintiff alleges that in 2017, plaintiff and defendants entered into a commercial lease agreement whereby plaintiff would lease from defendants the premises located at 2405 N. Sepulveda Blvd., Manhattan Beach. FAC, ¶7. The lease was to commence on October 1, 2017 for a five year term. Id., ¶8. Plaintiff would pay defendants rent starting at $4,725 per month for the first year, and increasing incrementally each year with the rent of $5,740 per month on the fifth year. Id., ¶9. After executing the lease, plaintiff began construction on the premise to convert it to a spa operating as Blossom Spa Manhattan Beach. Id., ¶12. Plaintiff spent approximately two or more years obtaining the necessary licenses and permits to operate the spa and over $200,000 in construction on the premises in reliance that he would be able to possess quiet enjoyment of the premises in order to operate his spa without hindrance from defendants, pursuant to the lease. Id., ¶13.

Plaintiff further alleges that he intended to open his spa early 2019 upon completion of construction at the premises; however, it was very clear that due to the lack of soundproofing of the structure of the premises, it would be impossible for plaintiff to operate his business at the premises. The noise and vibrations emanating onto the premises completely diminished its value and rendered it impossible to operate any type of commercial enterprise, let alone plaintiff’s spa. Id., ¶14. On either side of the premises were two fitness studios, which during classes throughout the day, played extremely loud music, with a loud bass causing immense vibrations through the walls, and with the fitness instructors yelling through a microphone. Id., ¶15. Although plaintiff notified defendants of the loud noise and vibrations numerous times, defendants failed to act or even respond to plaintiff. Id., ¶16. Since defendants failed to respond and plaintiff was incurring costs and losing profits everyday that he was unable to operate his business, plaintiff immediately retained acoustic engineers for help. They recorded the noise entering the premises at over 100 decibels. By reference, according to OSHA, 100 decibels is equivalent to a construction site. ¶Id., 18.

Plaintiff further alleges that he spent over $10,000 to add over six inches of noise reducing barrier to the premises, which consequently diminished the overall square footage of the premises. Plaintiff took other measures, such as setting up a stereo system to drown the noise emanating onto the premise. After exhausting all efforts, the noise levels were still over 80 decibels. Id., ¶20. Plaintiff attempted a soft opening around March 25, 2019, but due to the deafening noise from the tenants and lack of soundproofing at the premises, plaintiff was unable to operate whatsoever. After a few days, plaintiff closed his business until this issue can be resolved, and plaintiff is not operating his spa at the premises. Id., ¶21.

On January 13, 2020, plaintiff filed amendments designating Fit on Studios, Inc. as Doe 1, Coreology, Inc. as Doe 2, and Coreology 2.0 LLC as Doe 3.

On July 9, 2020, the court granted plaintiff’s motion for leave to file a SAC.

On June 15, 2021, the court denied defendant Edward Leung’s motion to compel plaintiff to deposit unpaid rent.

On December 10, 2021, the court granted defendant Coreology 2.0, LLC’s motion to continue trial.

On August 25, 2022, the court denied defendant Edward Leung’s motion for leave to file a cross-complaint without prejudice.

On September 22, 2022, the court denied defendant Coreology 2.0, LLC’s motion for summary judgment.

CCP §426.50 states that, “A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave. . . to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon terms as may be just to the parties, leave . . . to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.”

CCP §428.10 states that, “A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth either or both of the following: . . . (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.”

CCP § 428.50 states, “(a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint.

(b) Any other cross-complaint may be filed at any time before the court has set a date for trial.

(c) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action.”

“If the proposed cross-complaint is permissive . . ., leave of court may be granted ‘in the interest of justice’ at any time during the course of the action (CCP §428.50(c)). On the other hand, if the proposed cross-complaint is compulsory . . ., leave must be granted so long as defendant is acting in good faith (CCP §426.50 . . .).” Weil & Brown, Civ. Proc. Before Trial, ¶6:555.

“The declarations of defendant’s counsel should show that it would be ‘in the interest of justice’ to grant leave to file; and some reasonable excuse why the cross-complaint was not filed earlier (mistake, inadvertence, excusable neglect . . . or most commonly, recent discovery of new facts).” Id., ¶6:562.

Defendant Edward Leung, as an individual and as trustee for Leung Edward T. Trust, requests leave to file a cross-complaint against plaintiff for breach of lease agreement.

The court notes that on August 25, 2022, the court denied without prejudice defendant’s motion to file a cross-complaint after oral argument. The minute order states that the motion was denied based on opposing party’s evidence that the LA County Moratorium prevents an action for rent recovery during the time specified in the proposed cross-complaint. The motion was denied subject to renewal after the moratorium expires (presumably 12/31/22).

Defendant contends that plaintiff had stopped paying rent, had stopped depositing unpaid rent with the court under the terms of the commercial lease agreement, and refused to release possession of the premises even though plaintiff had not operated a business therein. From March 4, 2020 to December 31, 2022, there was a “Protected Time Period” (aka Moratorium Period) on evictions of tenant who were unable to pay their rent due to the Covid-19 pandemic. The Moratorium Period was previously from March 4, 2020 to January 31, 2022 for commercial tenants, but that period was extended to December 31, 2022. The County of Los Angeles Covid-19 Tenant Protection Resolution states that “Commercial Tenants with nine (9) employees or fewer shall have until January 31, 2023 to repay unpaid rent incurred during the Protected Time Period.” Defendant asserts that when plaintiff filed the SAC during the Moratorium Period, defendant could not file his cross-complaint with the answer to the SAC.

The court rules as follows: The court finds that the proposed cross-complaint arises out of the same lease agreement that is at issue in the complaint. The proposed cross-complaint is compulsory as it is against plaintiff. Defendant has shown that he is acting in good faith and it would be in the interest of justice to allow him to file a cross-complaint.