Case Number: VC059422 Hearing Date: June 24, 2014 Dept: SEC

THEE AGUILA, INC. v. ACUNA
CASE NO.: VC059422
HEARING: 06/24/14

#7
TENTATIVE ORDER

Defendants SANTIAGO ACUNA, EDGAR FRAGOSO, EVA MENESES and ERDM, INC¿s demurrer to the Third Amended Complaint is OVERRULED as to the breach of contract cause of action; and SUSTAINED WITHOUT LEAVE TO AMEND as to the negligence cause of action. C.C.P. § 430.10(e).

Defendants have 20 days within which to serve and file a responsive pleading.

Plaintiff THEE AGUILA, INC. and HENRY AGUILA previously filed an unlawful detainer complaint against defendants (case number VC059752), wherein they argued that defendant tenants’ conduct at the leased premises constituted a nuisance. That action went to trial, after which a statement of decision in favor of defendants was issued. Judgment was entered in October 2012. Plaintiffs filed a notice of appeal in December 2012, but failed to file an opening brief which resulted in an August 2013 dismissal.

In the subject action, plaintiffs initially asserted causes of action based on nuisance but at the time the demurrer was heard, plaintiffs agreed to dismiss those claims because of the prior judgment. On November 21, 2013, defendants’ demurrer to the Second Amended Complaint was sustained without leave to amend with respect to the causes of action for public and private nuisance, and sustained with leave to amend as to the breach of contract and negligence claims.

Defendants demur to the breach of contract and negligence causes of action on the same ground as previously argued—that the court made factual findings in the related UD case which preclude plaintiffs’ claims for damages based on the same allegations. Defendants argue that the action is barred under the doctrine of res judicata. See, e.g. Lucido v. Superior Court (1990) 51 Cal.3d 335; Clemmer v. Hartford Ins.(1978) 22 Cal.3d 865. They contend that the distinction between the relief requested in the two actions does not limit the application of res judicata. Wood v. Herson (1974) 39 Cal.App.3d 737. The Court agrees.

While plaintiffs’ claim for damages is different, much of the pleading arises from facts which have been adjudicated in favor of defendant tenants. The prior judgment included findings that defendants were not operating the night club in an illegal manner or in a manner constituting a nuisance. Stmt of Decision, p. 54-55. The portions of the breach of contract claim, based on events which were identified in the Department of Alcoholic Beverage Control’s and Los Angeles Sheriff’s Department’s April 2011 letters to defendants, as well as events pertaining to defendants’ security company arising in September 2011, appears to be precluded by the prior judgment.

However, a demurrer must completely dispense of a cause of action. Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged. Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 (“A demurrer must dispose of an entire cause of action to be sustained.”). The TAC includes allegations regarding breach of the indemnity provision in the lease, and alleged breaches with respect to the parking easement and defendants’ alleged non-payment of the City’s annual monitoring fee. TAC, ¶¶60, 62, 64. Those allegations go beyond the factual determinations made at the conclusion of the UD trial. For that reason, the demurrer to the breach of contract cause of action must be overruled.

The second cause of action for negligence generically alleges that defendants breached their duty of reasonable care and the duty “to abide by all rules and regulations affecting the property.” Defendants’ “duties” arise from the lease, not from tort law. The 2nd cause of action is entirely duplicative of the breach of contract claim, and the demurrer thereto is thus sustained without leave to amend.

As extensively argued by defendants in the moving papers, the breach of contract allegations (to the extent they are not barred) appear to be duplicative of those asserted in a related case filed by plaintiffs (case number BC521399). The Court cannot dismiss the action on that ground, as that was not a noticed basis for the demurrer and because it does not have that file before it to make a conclusive determination. It notes, however, that the practice of filing multiple lawsuits addressing the same issues serves no purpose except to strain the parties’ and the courts’ resources.