Case Name: Eric Vasutin v. Skylars LLC
Case No.: 18CV324137

I. Background

This action arises out of a commercial lease agreement between plaintiff Eric Vasutin (“Plaintiff”), a tenant, and defendant Skylars LLC (“Defendant”), his landlord.

According to the operative First Amended Complaint (“FAC”), Plaintiff entered into a lease with the original lessor, 2099 South 10th LLC. The lease identified both Plaintiff and his business Nor-Cal Hobby LLC (“Nor-Cal Hobby”) as the lessee. Specifically, the lessee was designated as “ ‘Eric Vasutin Nor-Cal Hobby LLC DBA Nor Cal Hobby.’” (FAC, ¶3.) Plaintiff alleges he was an individual lessee and either the one lessee, or one of two lessees, with Nor-Cal Hobby being the second. Pursuant to the terms of the lease, Plaintiff was granted exclusive possession and use of two bathrooms and a hallway leading from his business to the bathrooms.

In late 2015, Plaintiff’s accountant recommended he close Nor-Cal Hobby for tax reasons. Plaintiff did so after discussing this act with the managing partner of the original lessor. The managing partner acquiesced to the assignment of Nor-Cal Hobby’s lease interest to Plaintiff, if any such assignment was necessary.

In January 2017, the original lessor sold the building to Defendant. Defendant then insisted that Plaintiff’s bathrooms and hallway were common areas of the building and subject to its possession and use. Defendant then breached the lease by demolishing Plaintiff’s women’s bathroom and adjacent hallway, changing the entrance doors, and creating a bathroom for use by handicapped and other patrons of different tenants in the building. Defendant proceeded with the demolition and remodeling without permits from the City of San Jose.

On or around January 31, 2018, Defendant assured Plaintiff that the hallway and bathrooms would be returned to their original condition. However, Defendant failed to do so. Moreover, Defendant did not agree that the hallway and bathrooms are part of Plaintiff’s premises. Further, Defendant refused to acknowledge that the original lessor had authorized an assignment of the lease from Nor-Cal Hobby to Plaintiff, and did not independently consent to the assignment either.

Later, Defendant maliciously initiated two eviction actions and one declaratory relief proceeding against Plaintiff. Defendant voluntarily dismissed all three.

The FAC asserts the following causes of action: (1) breach of lease; (2) breach of landlord’s covenant to keep the commercial premises in good repair; (3) breach of quiet enjoyment; (4) breach of covenant of good faith and fair dealing; (5) harassment of tenant; (6) negligence (destruction of women’s restroom); (7) negligence (failure to restore women’s restroom and hallway to safe and clean condition as part of the leased premises); (8) negligent infliction of emotional distress; (9) intentional infliction of emotional distress; (10) negligent misrepresentation; (11) intentional misrepresentation; (12) false promise; (13) nuisance; (14) declaratory relief; (15) injunctive relief; (16) attempted wrongful eviction; (17) trespass; and 18) retaliatory eviction.

Defendant presently demurs to twelve of the eighteen causes of action. The demurrer is accompanied by a request for judicial notice. Plaintiff opposes the demurrer.

The demurrer is OVERRULED in its entirety. As plaintiff has submitted evidence the defendant LLC is not currently represented by counsel licensed to practice law in the State of California, defendant cannot maintain its demurrer nor represent itself in this action. Defendant’s prior counsel filed on October 31, 2018 a Notice of Withdrawal of Attorney of Record, and no Substitution of Attorney has been filed.

The Court may consider the substantive arguments and authority raised in the demurrer and opposition only if a proper substitution of attorney is filed before the hearing.

An Answer must be filed by defendant – only through counsel who has properly entered their appearance as counsel of record – within 10 days.