Judge: Michael E. Whitaker, Case: 24SMCV00271, Date: 2024-05-16 Tentative Ruling

Case Number: 24SMCV00271    Hearing Date: May 16, 2024    Dept: 207

TENTATIVE RULING

MOTION

On January 19, 2024, Plaintiff City of Los Angeles (“City”) filed suit alleging one cause of action for Common Count – Money Due on Unpaid Balance, against Defendants 921-929 Broxton Ave, LLC; Habibi Café; Jan Fathi; and Saad Fathi (“Defendants”). 

Moving Defendant 921-929 Broxton Ave, LLC (“Broxton”) demurs to the Complaint on the grounds that it fails to state facts sufficient to constitute a cause of action under Code of Civil Procedure section 430.10, subdivision (e). 

City opposes the demurrer and Broxton replies.

REQUEST FOR JUDICIAL NOTICE

            Broxton requests judicial notice of the invoice sent to Defendants Habibi Café, Jan Fathi, Saad Fathi, and Broxton by the City of Los Angeles Department of City Planning, dated February 8, 2023, pursuant to Evidence Code sections 452 and 453. 

            Code of Civil Procedure section 452, subdivision (h) provides Judicial notice may be taken of “Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” 

            The Court finds that the invoice issued by the City to Defendants is not a fact and proposition not reasonably subject to dispute – in fact Broxton disputes that it was properly sent to Broxton – nor is it capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.  The Court cannot, for example, independently pull a public record to determine the accuracy of the invoice.  Rather, the invoice requires authentication.

            Therefore, Broxton’s request for judicial notice is denied.

ANALYSIS

                          I.          DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

                        II.          FAILURE TO STATE A CAUSE OF ACTION

“A common count is not a specific cause of action . . . rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory.”  (Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, 1454.) 

In the common law action of general assumpsit, it is customary to plead an indebtedness using common counts.  In California, it has long been settled [that] the allegation of claims using common counts is good against special or general demurrers.  The only essential allegations of a common count are (1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.  A cause of action for money had and received is stated if it is alleged the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff.”  (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [cleaned up]; see also CACI No. 370 [Common Count:  Money Had and Received].) 

City seeks $66,022.59 in costs incurred in connection with administrative nuisance abatement proceedings (Case No. DIR-2021-1463-RV) and its appeal (Council File No. 21-1282) to mitigate the public nuisance caused by Defendant Habibi Café, the tenant at Broxton’s property.  City contends this amount is reimbursable, pursuant to Los Angeles Municipal Code Section 12.27.1(C)(2), which requires “the property owner, business operator or person in control” must pay the City’s costs, should a nuisance be declared, and pursuant to Los Angeles Administrative Code section 5.181(c), which states “[p]ersons indebted to the City of Los Angeles for delinquent accounts or obligations owing to the City . . . shall be liable for the underlying obligation and all costs incurred by the City to effectuate collection of those items . . . .”  (Complaint ¶ 8.)

Broxton contends that City fails to state a cause of action against it, because the underlying nuisance abatement proceedings pertained solely to the activities of tenant co-Defendant Habibi Café, and not anything directed at Broxton, as owner of the property, or pertaining to the property itself.  However, Broxton’s argument relies upon the City’s Notice of Delinquency, of which the Court declines to take judicial notice (and which names Broxton in any event).  Therefore, the Court cannot grant Broxton’s demurrer on this basis.

Broxton also argues that the municipal code sections cited allow only for the recovery of the filing fee, not the $66,022.59 sought by the City.   

Section 12.27.1(C)(2) of the Los Angeles Municipal Code section 12.27.1(C)(2) provides:

Whenever the Zoning Administrator initiates an action pursuant to this Section, they shall impose a condition requiring payment of the fee (fee condition) set forth in Article 9 (Fees) of Chapter 1 (General Provisions and Zoning) of this Code to cover the City's costs in processing the matter.  A fee is not required if the Zoning Administrator finds that the operation of the land use does not create a nuisance or that the property owner, business operator or person in control, is in substantial compliance with the conditions of operation.

(Emphasis added.)

            Therefore, taking the allegations in the Complaint as true, the City prevailed in a nuisance abatement action and appeal against Defendants, and by operation of Los Angeles Municipal Code section 12.27.1(C)(2), Defendants, including Broxton, owe the City its costs in bringing the action (and defending the appeal) in the full amount requested.  Therefore, City alleges that Broxton is indebted to the City in a certain sum for the nuisance abatement proceedings, which Broxton has not paid.  Whether the Broxton in fact owes City the costs of its administrative abatement proceedings regarding Habibi’s activities is a factual determination to be made at later stages of the litigation. 

CONCLUSION AND ORDER

For the reasons stated, the Court overrules Broxton’s Demurrer to the Complaint in its entirety. 

Further, Broxton shall file and serve an Answer to the Complaint on or before June 7, 2024.

Further, on the Court’s own motion, the Court continues the Case Management Conference from May 20, 2024 to July 10, 2024 at 8:30 A.M.in Department 207.   All parties shall comply with California Rules of Court, rules 3.722, et seq.  In particular, all parties shall adhere to the duty to meet and confer (Rule 3.724) and to the requirement to prepare and file Case Management Statements (Rule 3.725). 

Broxton shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  May 16, 2024                                                         ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court