Judge: Frank M. Tavelman, Case: 22BBCV00621, Date: 2022-12-09 Tentative Ruling

Case Number: 22BBCV00621    Hearing Date: December 9, 2022    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

 

TENTATIVE RULING

December 9, 2022

DEMURRER

Los Angeles Superior Court Case # 22BBCV00621

 

MP:

Defendant Moussa Faour

RP:

Plaintiff Sheldon Pinchuk as Trustee of the Pinchuk Family Trust and David Pinchuk Family Trust

 

RELIEF REQUESTED:

 

Moussa Faour (“Defendant”) demurs to the Complaint of Plaintiff Sheldon Pinchuk (“Sheldon”) as Trustee of the Pinchuk Family Trust (“PF Trust”) and David Pinchuk Family Trust (“DPF Trust”) (“Plaintiff”).

 

ALLEGATIONS:

 

On August 30, 2022, Plaintiff filed an unlawful detainer complaint against Defendant.  Plaintiff alleges he owns the commercial property located at 10922 Vanowen Street, North Hollywood, CA  (“Property”), and on or about December 1, 1982, Jeff, Hayat, Ibraim and Adnan Muchamel (collectively, “Tenants”) signed a five-year lease of the Property (“Lease”).  (Complaint ¶¶4, 6.)  Plaintiff alleges the Lease was subsequently assigned to Defendant.  After the lease’s expiration on December 31, 2021, Defendant continued his occupancy on a month-to-month basis, which included a rental increase. (Complaint ¶6.)

 

Plaintiff alleges a 3-Day Notice to Pay Rent or Quit (“Notice) was served on the Defendant on August 18, 2022.  The three-day period to pay expired on August 23, 2022, and Defendant failed to comply with the Notice’s requirements. Plaintiff alleges Defendant owed $31,600 in past due rent.  (Complaint ¶12, Exh. 2.). 

 

By way of background, on December 29, 2021, in the Pasadena Courthouse of Los Angeles County, Plaintiff filed a previous unlawful detainer complaint against Defendant involving the same Property as in this action in an action titled Sheldon Pinchuk, as Trustee of The Pinchuk Family Trust and David Pinchuk Family Trust, Case No. 21PDUD01330 (“Prior UD Action”).  The Prior UD Action was based on Defendant’s alleged breach of covenant for failure to maintain or repair the Property as allegedly contained in the lease.  On September 9, 2022, the Court granted Defendant’s nonsuit and entered judgment.  Defendant based the motion for nonsuit on the grounds that the lease copy proffered by Plaintiff was missing substantial amounts text, and Plaintiff was unable to offer a complete copy of the lease.

 

HISTORY:

 

Defendant filed the instant demurrer on September 21, 2022. Plaintiff filed his opposition on October 12, 2022. Defendant filed a reply on October 28, 2022.

 

DEFENDANT’S REQUEST FOR JUDICIAL NOTICE:

 

Defendant’s request for judicial notice of the Grant Deed (Exhibit 1), the complaint in the Prior UD Action (Exhibit 2), and the Judgement in the Prior UD Action (Exhibit 3) is granted pursuant to Cal Evid. Code, § 452.  (RJN, Exhs. 1, 2, 3.)  However, the Court does not take judicial notice of the truth of the matters asserted in Exhibit 2. 

 

ANALYSIS:

 

I.          LEGAL STANDARD

 

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  (CCP § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

 

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) But this does not include contentions, deductions, conclusions of fact or law alleged in the complaint, facts impossible in law, or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at p. 318.)

 

Pursuant to CCP §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).)

 

II.        MEET AND CONFER

 

The Court notes the meet and confer requirements of CCP § 430.41(a) do not apply to unlawful detainer actions.  (CCP §430.41(d)(2).)

 

III.       MERITS

 

  1. First Cause of Action for Eviction- Unlawful Detainer.

     

    Defendant argues that Plaintiff’s Unlawful Detainer cause of action fails because: (1) it fails to state sufficient fact due to Res Judicata; (2) it is uncertain because the Prior UD Action’s judgement stated that the lease was incomplete; and (3) there is a misjoinder of parties as the Plaintiff was not party to the original lease. (Demurrer, PDF, pg. 3.)

               

  1. Res Judicata

     

    Defendant argues res judicata bars the instant action because Plaintiff sought the same relief in the Prior UD Action asserting that Plaintiff is seeking the rental value for all back rent and in the Prior UD Action, Plaintiff sought the rental value of the premises through the date of trial.  (Demurrer, pg. 2-3.)  Plaintiff argues the Prior UD Action sought simply to terminate the tenancy because Defendant failed to cure alleged lease violations. (Opposition, pg. 3.) Specifically, Plaintiff based the Prior UD Action on Defendant’s alleged failure to properly maintain or repair the Property.  Plaintiff argues the instant action is based on Defendant’s failure to pay rent from January 1, 2022, through August 31, 2022.” (Id.)

     

    Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) “Under this doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date.” (Id.) “ ‘Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.’ ” (Id. citing Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th 1234, 1245.) "[A]n entire claim cannot be divided and made the basis of several suits. If an effort is made to split a cause of action into more than one lawsuit, the defendant in the second suit may plead the pendency of the first in abatement.¿If the judgment has previously been rendered on the merits in the first suit, the defendant in the second suit can plead the judgment as a bar, based on res judicata." (Phillips v. Western Pac. R.R. Co. (1971) 22 Cal.App.3d 441, 444.)

     

    The Court finds the Prior UD Action is not based on substantially identical facts to the instant action to justify sustaining the Demurrer based on res judicata.  The prior action was based on issues involving the premises’ physical condition, but the instant action involves nonpayment of rent from January 1, 2022, to August 31, 2022. (RJN, Exhibit 2; Complaint, Exhibit 2.) The actions pertain to different time periods and different issues; therefore, the do not have substantially identical facts.

     

    Furthermore, the granting of the nonsuit in the Prior UD Action was based on Plaintiff’s failure to provide a complete executed lease copy. (RJN, Exhibit 3, pg. 1-2.) Here, whether Plaintiff can establish the cause of action for unpaid rents from Defendant does not hinge on whether Plaintiff can provide a complete copy of the lease -- including language relating to the covenant to maintain and repair property that Defendant allegedly breached in the Prior UD Action.  

     

    The Court finds an insufficient basis for sustaining the demurrer on Defendant’s first argument.

     

  2. Uncertainty as to the Lease

     

    Defendant argues that the Doctrine of Collateral Estoppel bars Plaintiffs from bringing a suit based on a written lease in which a “Prior Judgement confirms that no complete lease was in existence or producible.” (Demurrer, pg. 6.) The term ““issue preclusion” [is used] to encompass the notion of collateral estoppel.” (DKN Holdings LLC 61 Cal.4th at 824.) “Issue preclusion does not bar entire causes of action. Instead, it prevents relitigation of previously decided issues.” (Id. at 824, citing Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828.)

     

    The Prior UD Action’s judgement held that a certain lease paragraph at issue had substantial amounts of its text missing. (RJN, Exhibit 3, pg. 1.) However, that Court’s holding was in the context of a material provision that Defendant allegedly breached, and Plaintiff’s failure to produce the terms of that provision.  That Court’s ruling that Plaintiff was unable to provide a “complete copy of the lease” was in reference to the maintenance and repair provision and did not extend beyond that. The Court finds the instant action does not seek to relitigate the same issue as the Prior UD Action, and collateral estoppel does not apply.

     

    The Court does not find a basis for sustaining the demurrer on this second argument.

     

  3. Plaintiff is not Party to the Original Lease

     

    Defendant argues that there is a defect or misjoinder of parties as the Plaintiff was not a party to the Original Lease. (Demurrer, PDF, pg.  3.) Defendant argues that the original 1982 lease was between David Pinchuk, an individual, (“David”) and the four original Tenants. (Id. at pg. 7.)  However, at the demurrer stage, the allegations of the complaint are taken as true.  Here, Defendant’s argument that David, not Plaintiff, was party to the original lease exceeds the scope of the pleadings and contradicts the allegations of the complaint, which specifically alleges that Plaintiff entered a lease with Tenants. 

     

    Defendant argues that the documents subject to judicial notice confirm that Plaintiff as Trustee did not exist at the time the lease was executed, since the Deed makes clear that the PF Trust did not come into existence until November 17, 1988, and as such Plaintiff could not have been party to the original lease.  (Demurrer, pg. 7.)  However, whether Plaintiff, the alleged owner of the Property is party to the original lease for purposes of being entitled to enforce its terms against Defendant is an issue of fact and not properly raised on demurrer. (See M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693, 703, citing Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1376.) [“Questions of fact generally require the consideration and weighing of evidence, which makes them unsuitable for resolution on demurrer.”].)

     

    The Court does not find a basis for sustaining the demurrer on the third argument.

     

     

    IV.       CONCLUSION

     

    The Court thus overrules the Demurrer.

     

    ---

     

RULING:

 

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

 

ORDER

 

Defendant Moussa Faour’s Demurrer came on regularly for hearing on December 9, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

 

THE DEMURRER IS OVERRULED.

 

IT IS SO ORDERED.

 

DATE:  December 9, 2022                           _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles