Judge: Robert B. Broadbelt, Case: 20STCV43226, Date: 2022-09-01 Tentative Ruling

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Case Number: 20STCV43226    Hearing Date: September 1, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Walter P. Kramer dba Encino Oaks Realty (sued as Encino Oaks Realty)

RESPONDING PARTIES:    Plaintiffs Ardeshir Farshchi Tabrizi and Maneary Sammuon Kahn

Demurrer to First Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with the demurrer.

BACKGROUND

On November 12, 2020, plaintiffs Ardeshir Farshchi Tabrizi and Maneary Sammuon Khan (“Plaintiffs”) filed this action against defendants Yakov Litinetsky, as trustee of The Litinetsky Family Trust, Maria Litinetsky, as trustee of The Litinetsky Family Trust, and Encino Oaks Realty.

Plaintiffs filed the First Amended Complaint on August 20, 2021, alleging four causes of action for (1) breach of warranty of habitability, (2) breach of covenant of quiet enjoyment, (3) negligence, and (4) breach of contract.  Plaintiffs dismissed the cause of action for breach of contract as to defendant Encino Oaks Realty on December 27, 2021.

Defendant Walter P. Kramer dba Encino Oaks Realty (sued as Encino Oaks Realty) (“Defendant”) moves the court for an order sustaining the demurrer to Plaintiffs’ first, second, and third causes of action without leave to amend.

REQUEST FOR JUDICIAL NOTICE

The court denies Defendant’s request for judicial notice because Defendant’s request is an improper attempt to introduce new evidence and argument in reply.  (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)

DISCUSSION

The court overrules Defendant’s demurrer to Plaintiffs’ First Amended Complaint on the ground that it is uncertain because the First Amended Complaint is not ambiguous or unintelligible.  (Code Civ. Proc., § 430.10, subd. (f).)

The court overrules Defendant’s demurrer to Plaintiffs’ first cause of action for breach of the implied warranty of habitability because it states facts sufficient to constitute a cause of action since it does not “appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred” by the four-year statute of limitations for an action based on a written contract.  (Code Civ. Proc., §§ 430.10, subd. (e), 337, subd. (a); Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)  

The court notes that Defendant contends that the allegations in paragraphs 16 and 17 establish that Plaintiffs knew of the substandard conditions at least four years prior to filing this action.  However, Plaintiffs do not allege that they knew of the conditions, or the results of the inspections of the property, four years prior to the filing of their complaint, and instead allege only that the property was subjected to inspections in the four years before Plaintiffs filed their complaint.  (FAC ¶ 17.)  In addition, Plaintiffs allege that they made verbal and written complaints about the property in the two years prior to filing this action, suggesting that Plaintiffs discovered the allegedly substandard conditions within that two-year timeframe.  (FAC ¶ 20.)  The court therefore finds that the allegations do not clearly and affirmatively establish that Plaintiffs’ cause of action for breach of the implied warranty of habitability is time barred.

The court overrules Defendant’s demurrer to Plaintiffs’ second cause of action for breach of covenant of quiet enjoyment because it states facts sufficient to constitute a cause of action since it does not “appear clearly and affirmatively that, upon the face of the complaint,” this cause of action is barred by the four-year statute of limitations, for the reasons set forth above.  (Code Civ. Proc., §§ 430.10, subd. (e), 337, subd. (a); Lockley, supra, 91 Cal.App.4th at p. 881.)

The court overrules Defendant’s demurrer to Plaintiffs’ third cause of action for negligence because it states facts sufficient to constitute a cause of action since the allegations do not “clearly and affirmatively” demonstrate that this cause of action is barred by the two-year statute of limitations, for the reasons set forth above.  (Code Civ. Proc., § 430.10, subd. (e); Lockley, supra, 91 Cal.App.4th at p. 881.)

ORDER

The court overrules defendant Walter P. Kramer dba Encino Oaks Realty’s demurrer to plaintiffs Ardeshir Farshchi Tabrizi and Maneary Sammuon Kahn’s first, second, and third causes of action alleged in the First Amended Complaint.  (Code Civ. Proc., § 430.10, subd. (e).)

The court orders defendant Walter P. Kramer dba Encino Oaks Realty to file an Answer to the First Amended Complaint within 10 days of the date of this order.

The court orders plaintiffs Ardeshir Farshchi Tabrizi and Maneary Sammuon Kahn to give notice of this order.

IT IS SO ORDERED.

DATED:  September 1, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court