Losonsky v. Davis CA2/7 ( 2014 )

Filed 9/15/14 Losonsky v. Davis CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
GREGG M. LOSONSKY, B251949
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No. BC507892)
LAWRENCE DAVIS,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Kevin Brazile, Judge. Affirmed.
Gregg M. Losonsky, in pro per, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
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Gregg Losonsky appeals from the judgment entered upon the order sustaining
Lawrence Davis’s demurrer without leave to amend. The trial court dismissed
appellant’s complaint, finding that res judicata barred the action because appellant’s
claims were based on the same primary right as a prior complaint that had been dismissed
with prejudice. Appellant contends that prior complaint was dismissed without affording
him an opportunity to amend that complaint. Therefore, he filed a new complaint
asserting new causes of action. Thus, under the circumstances, appellant contends it was
unfair and unjust that the trial court applied res judicata as a basis to dismiss his new
complaint. As we shall explain, appellant’s claims lack merit. To the extent that
appellant complains that he should have been given an opportunity to amend the original
complaint, the proper recourse was to file an appeal from the judgment dismissing the
original complaint. He cannot cure the defects in the original complaint by filing a new
complaint in the trial court based on the same underlying facts. Consequently, the trial
court properly applied res judicata to dismiss the new complaint. Accordingly, we affirm
the judgment.
FACTUAL AND PROCEDURAL HISTORY
In September 2011, appellant filed a complaint against Lawrence Davis asserting
causes of action for negligence and intentional tort arising out of appellant’s tenancy in
an apartment complex owned by Davis. In March 2012, appellant filed a first amended
complaint. After the trial court granted Davis’s motion for judgment on the pleadings
giving appellant leave to amend, appellant filed a second amended complaint (hereinafter
known as the original complaint).
In the original complaint appellant alleged that he rented an apartment from Davis
in 2011, and that at the time he entered the lease, Davis failed to disclose that he had been
found to be in violation of several Los Angeles Municipal codes by the Los Angeles
Housing Department (LAHD). Appellant alleged that Davis failed to cure the code
violations disclosed in the LAHD decision and that the code violations made his unit
uninhabitable and placed him in danger. Appellant further alleged that he discovered the
code violations when he attended an LAHD meeting and as a result Davis retaliated
against him.
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Davis filed a demurrer to the original complaint and appellant filed an opposition
to the demurrer. According to appellant, he brought a third amended complaint to the
demurrer hearing to show that he could cure the defects in the original complaint.
However, appellant contends that court would not allow him to present the amended
complaint, and dismissed the original complaint with prejudice on April 30, 2013.
Appellant did not file an appeal from the judgment. Instead on May 3, 2013,
appellant took the third amended complaint that he had brought to the demurrer hearing
and filed it in the trial court as a new complaint. The new complaint alleged causes of
action for breach of the warranty of habitability, nuisance, negligent violation of statutory
duty and intentional infliction of emotional distress. The new complaint contained claims
of injury and damage related to Davis’s failure to remedy the code violations outlined in
the LAHD decision. In addition, the new complaint contained claims that other tenants in
the complex had created “annoyance and discomfort” and were aggressive towards him
when he made inquiries about the code violations.
Davis filed a demurrer to the new complaint arguing that it should be dismissed as
a matter of law under the doctrine of res judicata because it was based on the same
underlying facts and circumstances as the original complaint. The trial court agreed and
dismissed the action with prejudice. This appeal followed.
DISCUSSION
Before this court appellant maintains that it is unjust to apply res judicata to this
case because he was not given an opportunity to cure the defects in the original complaint
and because to do so would be to ignore Davis’s violations of appellant’s rights.
At the outset, we note that while appellant’s written opposition to the demurrer is
included in the appellate record, Davis’s demurrer is missing. Appellant failed to
designate the demurrer to be included in the clerk’s transcript on appeal. Appellant has
therefore failed to provide us with a complete record of the matter, in violation of well
established appellate rules. For this reason alone, we find the challenge to the court’s
order sustaining the demurrer has been forfeited on appeal. (See Maria P. v. Riles (1987)
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43 Cal. 3d 1281, 1295-1296 [“Because [defendants] failed to furnish an adequate record
of the attorney fee proceedings, defendants’ claim must be resolved against them”].)
In any event, even were we to reach appellant’s claims on appeal we would
conclude that they lack merit.
Although alleged as new causes of action, appellant’s claims in the new complaint
are all based on the same underlying facts as the original complaint. In the new
complaint, appellant is seeking redress for the dangers and harms caused by Davis’s
failure to fix the code violations and for Davis’s acts of misconduct and retaliation
against appellant. These are the same facts and circumstances that formed the basis of
the original complaint. Even the complaints about the behavior of the other tenants are
related to the code violations and conditions in the apartment that were subject of the
claims in the original complaint. As such the trial court properly concluded that
appellant’s new complaint was barred by res judicata. (Warga v. Cooper (1996) 44
Cal. App. 4th 371, 378 [a prior judgment is res judicata on matters which were raised or
could have been raised, on matters litigated or litigable].)
To pursue claims against Davis relating to his tenancy, appellant’s proper avenue
of recourse was not to file a wholly new complaint after the trial court dismissed the
original complaint with prejudice, but instead to appeal from the judgment dismissing the
original complaint. On appeal, appellant could have argued that the trial court erred in
failing to grant him an opportunity to cure the defects in the original complaint. But,
appellant failed to appeal from that judgment, and his failure to do so forecloses any
further opportunity for him to seek redress for the claims and alleged injuries at issue in
his complaints.
In view of the foregoing, we conclude the trial court properly sustained the
demurrer to the new complaint without leave to amend.
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DISPOSITION
The judgment is affirmed. No costs on appeal are awarded.
WOODS, J.
We concur:
PERLUSS, P. J.
ZELON, J.
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