Case Number: BC573599 Hearing Date: May 09, 2016 Dept: 78

Superior Court of California
County of Los Angeles
Department 78

CORY L. BROOKSHIRE,
Plaintiff,
v.
ZAMIR INVESTMENTS, LLC, et al.
Defendants. Case No.: BC573599
Hearing Date: May 10, 2016

[TENTATIVE] RULING RE:
Defendants Zamir Investments, LLC, Royal Power Management, Inc., Omar Nunez, and Fernando Arevalo’s Motion for Judgment on the Pleadings.

Defendants Zamir Investments, LLC, Royal Power Management, Inc., Omar Nunez, and Fernando Arevalo’s Motion for Judgment on the Pleadings is DENIED as moot. Defendants to may file and serve a revised Motion for Judgment on the Pleadings with respect to the First Amended Complaint in conformity with Code Civ. Proc. section 1005. Defendants to reserve a date on the court reservation system, and the court will advance the hearing to June __, 2016.

FACTUAL BACKGROUND

This is a breach of lease case. Plaintiff Cory Brookshire (“Brookshire”) moved into an apartment building owed by defendant Zamir Investments, LLC (“Zamir”) and managed by defendant Royal Power Management, Inc. (“Royal”) on November 16, 2013. (First Amended Complaint (“FAC”) ¶¶ 8–10.) During October, November, and December of 2014, Brookshire complained by phone and in writing regarding infestations of bedbugs and roaches, clogged bathroom sinks overflowing, lack of heat or air-conditioning, no working stove, and low water pressure. (FAC ¶ 12.) On December 1, 2014, Brookshire made arrangements with Zamir and Royal employee Omar Nunez (“Nunez”) to pay his rent on December 12, 2015. (FAC ¶ 14.)

Brookshire paid his rent on December 12, 2014. (Id. ¶ 15.) Defendants, however, refused to accept the rent, and returned it on December 15, 2014. (Id. ¶¶ 16, 17.) Brookshire alleges that the refusal to accept his rent on December 12, 2014 was breach of the lease agreement. (FAC ¶ 17.) On January 10, 2015, Brookshire tendered a check to Defendants that was accepted and cashed. (FAC ¶ 20.)

The FAC then alleges that defendants moved forward with “illegally locking” him out of his home in April 1, 2015. (FAC ¶ 22.) On April 8, 2015, defendants refunded Brookshire the January 12, 2015 check. (FAC ¶ 23.)

PROCEDURAL HISTORY

The complaint was filed on December 31, 2014, and states six causes of action:
1. Breach of Contract
2. Wrongful eviction
3. Breach of quiet enjoyment
4. Harassment
5. Filing a frivolous lawsuit
6. Retaliatory eviction
7. Lulling the Defendant
8. Breach of Fiduciary Duty

Defendants filed a Demurrer and Motion to Strike on April 3, 2015. On October 6, 2015, this court related this case to BC568228, the lead case, and all hearing dates in this case were vacated. The hearing on the Demurrer was set for March 25, 2016. On March 2, 2016 Brookshire filed his FAC, alleging eight causes of action:

1. Breach of contract
2. Breach of Quit Enjoyment
3. Retaliation CCP 1942.5(c) and common law.
4. Illegal Lockout Code Civ. Proc., § 789.3(c) (1) (2) (d)
5. NEGLIGENCE
6. Abuse of Process
7. BREACH OF COVENANT OF HABITABLE LIVING
PREMISES CCP §1174.2 AND CCP §1941— 1942. 4
8. Negligent inflection of emotion[al] Distress.

On March 7, 2016, Defendants filed their Motion for Judgment on the Pleadings. No Opposition was filed before the hearing. At the original hearing on April 11, 2016, the court continued this motion until April 22, 2016, to allow the court time to respond to Brookshire’s Code of Civil Procedure section 170.3, subdivision (c) statement of disqualification.
Brookshire filed a substantive Opposition to the Motion for Judgment on the Pleadings on April 18, 2016. However, the court did not grant Brookshire leave to file an untimely Opposition. Brookshire’s arguments that the filing of the FAC should have taken the Motion for Judgment on the Pleadings off-calendar should have been raised in a timely Opposition to this motion. The court will therefore not consider the untimely Opposition.

DISCUSSION

I. REQUEST FOR JUDICIAL NOTICE

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts 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.” (Evid. Code § 452, subds. (c), (d), and (h).

Defendants request the court take judicial notice of the following documents:
1. Complaint in the action captioned Brookshire v. Zamie Investments, et al., Los Angeles superior court Case No. BC 568228.
2. Tentative Ruling issues in connection with the anti-SLAPP motion filed by the Defendants in BC568228.
3. The fact that the Court adopted the tentative ruling.
4. The fact that Plaintiff filed an appeal of the Court’s Order granting the anti-SLAPP motion.
5. The January 25, 2016 Order of the Court of Appeal dismissing Plaintiff’s appeal of the anti-SLAPP motion.

Defendants’ Request for Judicial Notice is GRANTED.
Although the court is not considering Brookshire’s untimely Opposition, the court on its own motion takes judicial notice of that Brookshire’s Appeal was reinstated and returned to active status on March 7, 2016. (See Brookshire Decl. Ex. B.)

II. MOTION FOR JUDGMENT ON THE PLEADINGS

“A motion for judgment on the pleadings functions like a demurrer in that it is an attack on the face of the pleading.” (Anmaco, Inc. v. Bohlken (1993) 13 Cal.App.4th 891, 900.) “An amended complaint ‘supersedes the original and furnishes the sole basis for the cause of action. [Citations.] The original complaint is dropped out of the case and ceases to have any effect as a pleading, or as a basis for a judgment. [Citation.]’ [Citation.]” (Id. at p. 901.) “Because there is but one complaint in a civil action [citation], the filing of an amended complaint moots a motion directed to a prior complaint. [Citations.]” (State Comp. Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131.)
Here, defendants’ Motion for Judgment on the Pleadings is directed at the original complaint filed on February 27, 2015. The Motion, filed on March 7, 2016, addressed the “Complaint” only, not the First Amended Complaint filed on March 2, 2016. (Motion for Judgment on the Pleadings at pp. 2–3.) It is possible that defendants filed their motion before being served with the FAC, which was served by mail on February 29, 2016. The Motion also addresses only the single cause of action for breach of contract asserted in the original Complaint (Id. at p. 3.) The FAC, however, alleges eight causes of action.

Because it is directed at a prior, non-operative complaint, the Motion for Judgment on the Pleadings is DENIED moot. However, the court notes that defendants’ legal arguments regarding res judicata likely will apply to the FAC. Defendants may reserve a new hearing date for a Motion for Judgment on the Pleadings properly directed to the FAC. Because trial is currently set for June 28, 2016, this court will advance any reserved hearing to June __, 2016, in order to hear this new motion on the merits before the trial. Defendants are to file and serve their new Motion for Judgment on the Pleadings in compliance with Code Civ. Proc. section 1005.

Plaintiff to give notice.

Dated: May 10, 2016

__________________________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court