Superior Court of California

County of Los Angeles

Department 50

SHLOMO GOTTLIEB, Plaintiff, vs. 859 S. BEDFORD LLC, et al. Defendants.	Case No.:	22STCV38854 [r/w 22STCV24144]
	Hearing Date:	December 4, 2023
	Hearing Time:	10:00 a.m.
	TENTATIVE RULING RE: DEMURRER TO COMPLAINT

Background

Plaintiff Shlomo Gottlieb (“Gottlieb”) filed this action on December 14, 2022 against Defendant 859 S. Bedford LLC (“859 S. Bedford”). The Complaint alleges causes of action for (1) premises liability and (2) violation of Federal Fair Housing Act.

On July 26, 2022, 859 S. Bedford filed a Complaint against Gottlieb in the matter 859 S. Bedford LLC v. Shlomo Gottlieb, et al., Case No. 22STCV24144. On January 6, 2023, the Court issued a minute order in the instant action providing, inter alia, that “[t]he Court finds that the following cases, 22STCV24144 and 22STCV38854, are related within the meaning of California Rules of Court, rule 3.300(a). 22STCV24144 is the lead case. For good cause shown, said cases are assigned to Judge Teresa A. Beaudet in Department 50 at Stanley Mosk Courthouse for all purposes.”

In Case No. 22STCV24144, 859 S. Bedford alleges that “[o]n or about January 6, 1997, [Gottlieb] entered into a written lease agreement with [859 S. Bedford’s] predecessor in interest for the subject premises located at 859 S. Bedford Street, No. 5, Los Angeles, CA 90035...” (Compl., ¶ 6.) 859 S. Bedford alleges that “as a result of [Gottlieb’s] inability to properly maintain the Subject Premises or to specially take care of his fish tank, the tank’s pipes providing fresh water into the tank and/or to recycle water in the tank, started leaking that was not attended to nor fixed by [Gottlieb]. As a result the entire apartment where [Gottlieb] resided in as well as the apartments below were flooded with water that had gathered in [Gottlieb’s] apartment and which had traveled down to the units below.” (Compl., ¶ 13.)

859 S. Bedford now demurs to both causes of action of the Complaint in the instant action. Gottlieb opposes.

Discussion

A. Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

B. Allegations of the Complaint

In the Complaint, Gottlieb alleges that he “is and was at all relevant times herein an individual residing at 859 S. Bedford Ave., Apartment Number 5, Los Angeles, CA 90035” (herein, the “Premises”). (Compl., ¶ 1.) 859 S. Bedford is the owner of the Premises as well as six other apartments at 859 S. Bedford, Los Angeles, CA 90035. (Compl., ¶ 4.)

In or about late December 2021 and January 2022 Gottlieb slipped and fell at the Premises. (Compl., ¶ 9.) “At or about the same time [Gottlieb] experienced water intrusion in his apartment, including water that had leaked from the fish aquarium he kept at the Premises.” (Compl., ¶ 10.)

Gottlieb alleges that “[859 S. Bedford] had failed to keep the Premises in good repair and condition prior to December, 2021. [Gottlieb] slipped and fell as a result of such failure.” (Compl., ¶ 12.) Gottlieb alleges that “[859 S. Bedford] did not make appropriate repairs until after ordered to do so by the City [o]f Los Angeles in or about March, 2022.” (Compl., ¶ 12.)

Gottlieb further alleges that he “was forced to vacate the Premises for about a month while [859 S. Bedford] repaired the Premises. [859 S. Bedford] promised to compensate [Gottlieb] to defray the cost of an alternative residence while the repairs were being made but [859 S. Bedford] has never compensated [Gottlieb] for the time he had to live at an alternative residence. [859 S. Bedford] nonetheless required [Gottlieb] to pay, and [Gottlieb] continued to pay rent to [859 S. Bedford] at all times.” (Compl., ¶ 13.)

In the first cause of action for “premises liability – negligence,” Gottlieb alleges that 859 S. Bedford “failed to maintain and repair the premises in violation of the law, including but not limited to city codes and ordinances, and his Lease for the Premises, and in that the structure, carpet and wooden floors of the premises were in poor and dangerous condition and repair.” (Compl., ¶ 16.) Gottlieb alleges that “[i]n or about late December 2021 or early January, 2022 [Gottlieb] fell two times inside the Premises and suffered and continues to suffer, physical, mental and emotional injury and suffering as a result of the unsafe conditions at the Premises and according to proof at the time of trial.” (Compl., ¶ 19.)

In the second cause of action for violation of the “Federal Fair Housing Act,” Gottlieb alleges that that 859 S. Bedford “discriminated and has continued discriminate against [Gottlieb] on account if [sic] his disability in that it provided inferior housing in comparison to the other apartment units at the Property and in violation of the law; harassed him; disparaged him to the public; threatened to evict him and failed to compensate him when forced to vacate the Premises so the premises could be made lawfully habitable and then initiated legal proceedings in bad faith.” (Compl., ¶ 23.)

C. Demurrer

In the demurrer, 859 S. Bedford first asserts that “the two causes of action have been asserted regarding events and claims addressed in Defendant’s Action…Plaintiff was obligated and should have asserted his or her claims in that action. Plaintiff clearly could have filed a cross-complaint and elected not to do so.” (Demurrer at p. 9:2-5.) It appears 859 S. Bedford is referring to the matter 859 S. Bedford LLC v. Shlomo Gottlieb, et al., Case No. 22STCV24144. As set forth above, on January 6, 2023, the Court issued a minute order in the instant action providing, inter alia, that “[t]he Court finds that the following cases, 22STCV24144 and 22STCV38854, are related within the meaning of California Rules of Court, rule 3.300(a). 22STCV24144 is the lead case…”

859 S. Bedford cites to Code of Civil Procedure section 426.30, subdivision (a), which provides that “[e]xcept as otherwise provided by statute, if a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against the plaintiff, such party may not thereafter in any other action assert against the plaintiff the related cause of action not pleaded.”

In the opposition, Gottlieb asserts that “the triggering action/transaction in Defendant’s Complaint is the leakage of Plaintiff’s fish tank. Plaintiffs Complaint for Premises Liability and Violation of the Federal Fair Housing Act, as explained above and is apparent from the face of the Complaint, involves different and distinct transactions/occurrences and alleged wrongful conduct of [859 S. Bedford] herein…” (Opp’n at p. 5:2-5.) The Court notes that 859 S. Bedford did not file any reply in support of the demurrer and thus does not dispute this point.

The Court notes that Code of Civil Procedure section 426.10, subdivision (c) provides that “[r]elated cause of action” means “a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” 859 S. Bedford does not discuss this standard in the demurrer or explain how the causes of action alleged in the Complaint in the instant action purportedly “arise[] out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which [859 S. Bedford] alleges in [its] complaint.” (Code Civ. Proc., § 426.10, subd. (c).) The Court thus does not find that 859 S. Bedford has demonstrated in its demurrer that Gottlieb “fails to allege in a cross-complaint any related cause of action which (at the time of serving his answer to the complaint) he has against [859 S. Bedford]…” (Code Civ. Proc., § 426.30, subd. (a).)

859 S. Bedford also asserts that “the complaint as asserted, fails to state a cause of action for the claims asserted in either the first or the second cause of action.” (Demurrer at p. 9:7-9.) In the “factual background” section of the demurrer, 859 S. Bedford argues that Gottlieb has “failed to state any material and relevant facts in support of his claims and has brought this action without any specific factual basis in support any of the two claims/causes of action asserted herein.” (Demurrer at p. 6:6-8.) However, the Court notes that 859 S. Bedford’s demurrer does not appear to contain any discussion of the elements of Gottlieb’s causes of action. Thus, it is unclear what facts 859 S. Bedford contends Gottlieb purportedly failed to allege in the Complaint.

In the opposition, Plaintiff cites to CACI No. 1000, which provides that to establish a claim for premises liability, the plaintiff must prove all of the following: 1. That defendant [owned/leased/occupied/controlled] the property; 2. That defendant was negligent in the use or maintenance of the property; 3. That plaintiff was harmed; and 4. That defendant’s negligence was a substantial factor in causing plaintiff’s harm.

Gottlieb asserts that here, he has alleged facts sufficient to state a cause of action for premises liability. Gottlieb notes that the Complaint alleges that 859 S. Bedford is the owner of the Premises, and that 859 S. Bedford “had failed to keep the Premises in good repair and condition prior to December, 2021. [Gottlieb] slipped and fell as a result of such failure.” (Compl., ¶¶ 4, 12.) Gottlieb alleges that “[i]n or about late December 2021 or early January, 2022 [Gottlieb] fell two times inside the Premises.” (Compl., ¶ 19.) Gottlieb further alleges that 859 S. Bedford “knew or should have known that the Premises were not being maintained in a safe condition and that the Premises were being operated by [859 S. Bedford] in violation of city codes and ordinances and the law and in breach of the Lease between [Gottlieb] and [859 S. Bedford].” (Compl., ¶ 17.) As set forth above, 859 S. Bedford did not file any reply in support of the demurrer and thus does not address the foregoing points.

As to the second cause of action for violation of the Fair Housing Act (42 U.S.C. section 3601 et seq.), Gottlieb cites to 42 U.S.C. section 3604, subdivision (f)(2), which provides that “[a]s made applicable by section 803 [42 USCS § 3603] and except as exempted by sections 803(b) and 807 [42 USCS §§ 3603(b), 3607], it shall be unlawful…To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of—(A) that person; or (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associated with that person.” Gottlieb notes that in the second cause of action, he alleges that “[a]t all times mentioned herein [859 S. Bedford] discriminated and has continued [sic] discriminate against Plaintiff on account if [sic] his disability in that it provided inferior housing in comparison to the other apartment units at the Property and in violation of the law; harassed him; disparaged him to the public; threatened to evict him and failed to compensate him when forced to vacate the Premises…” (Compl., ¶ 23.) As discussed, 859 S. Bedford did not file any reply and does not respond to this point.

Based on the foregoing, the Court overrules 859 S. Bedford’s demurrer to the first and second causes of action of the Complaint.

Conclusion

Based on the foregoing, the Court overrules 859 S. Bedford’s demurrer to Gottlieb’s first and second causes of action.

The Court orders 859 S. Bedford to file and serve its answer to the Complaint within 10 days of the date of this order.¿

///

Gottlieb is ordered to give notice of this Order.

DATED: December 4, 2023 ________________________________

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court