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SCOTI' TALKOV, State Bar No. 264676 CHRISTOPHER M. KIERNAN, State Bar No. 319804
2 REID & HELLYER J 15/2"3 J 12
J 6) IDII~' / Sllle 11%
,/ 5/~1 leg.-
1-v'L. ~ e'p-p 3 3880 Lemon Street, Fifth Floor
Post Office Box 1300 4 Riverside, CA 92502-1300
Telephone: (951) 682-1771 5 Facsimile: (951) 686-2415
Email: [email protected] 6
(\Q..Pt~ .
l-6n.+ ("u,d lIJl.C)
7 Attorneys for Defendants Town Square M Properties, LLC and William Musharbash
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - POMONA COURTHOUSE
10 KAHTAN B. BAYATI, Trustee of the Kahtan Bayati Living Trust,
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12 Plaintiff,
l3 vs.
14 TOWN SQUARE M PROPERTIES, LLC, WILLIAM MUSHARBASH, an individual dba
15 JB Petroleum, and DOES 1-25, inclusive.
Defendants.
Case No: KC069904
Hon. Robert A. Dukes
NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF CHRISTOPHER M. KIERNAN RE: MEET AND CONFER; REQUEST FOR JUDICIAl NOTICE
DATE: May 23, 2018 TIME: 8:30 a.m. DEPT: Dept. 0
400 Civic Center Plaza Pomona, CA 91766
RES ID: 180323300319 (Related Case: Bayati v. Town Square, LACSC Case No. KC058874 Uudgment for Town Square and against Bayati dated April 5, 2016). '
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TO ALL PARTIES AND THEIR RESPECTIVE COUNSEL OF RECORD:
PLEASE TAKE NOTICE that on May 23,2018, at 8:30 a.m., or as soon thereafter as the
25 matter may be heard in Department 0 of the above-captioned COUlt, Defendants Town Square M
26 Prope11ies, LLC ("Town Square") and William Musharbash, an individual dba JB Petroleum
27 (collectively, "Defendants"), will, and hereby do, demur to the complaint ("Complaint") in this
28 action (referred to herein as "Bayati II"), and to each of the four causes of action therein, pursuant
- I -DEMIJRRER, TO COMPLAINT
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to Code of Civil Procedure section 430.1 O( e) for failure to state facts sufficient to constitute a cause
of action on the basis that all four causes of action are ba!re~. by }~~tl.e'preclusion~r:t~/()r.~!ai.m
preclusion based on prior litigation between plaintiff and Defendants in Kahtan B. Baya/iv. Town
Square M Properties, LLC, el al., Los Angeles County Superior Court Case No. KC058874 (Filed
Jun. 3, 2010) ("Bayati f'). Defendants will and hereby do request that leave tq amend be denied.
Defendants demur to the complaint in Bayati II on the following grounds:
1) The first and second causes of action for a continuing private and public nuisance are
barred by issue preclusion from Bayati 1. As the California Supreme Court explained,
"issue preclusion applies: (1) after final adjudication (2) of an identical issue (3) actually
litigated and necessarily decided in the first case and (4) asserted against one who was a
party in the first case or one in privity with that party." DKN Holdings LLC v. Faerber
(2015) 61 Cal. 4th 813, 824-25. Here, the issues alleged in the Bayati II complaint of
hazardous substances, contamination, and waste leaking into the soil from vehicles, as
we)) as "unceliified fill dirt" are barred from being relitigated by issue preclusion
because they were (1) decided by the Court after final adjudication in Bayati I, (2) on the
identical issue of hazardous substances, contamination, and waste leaking into the soil
from vehicles, as well as "uncertified fill dirt," (3) were actually litigated and necessarily
decided in Bayati I by summary adjudication in favor of Town Square on the claims for
waste and negligence, and (4) are between identical pal1ies in Bayati I and Bayali I!.
2) The third calise of action for waste is barred by claim preclusion in Bayati I . The
California Supreme Court explained that: "Claim preclusion arises if a second Sll it
involves: (1) the same cause of action (2) between the same parties (3) after a final
judgment on the merits in Bayati /." DKN Holdings LLC v. Faerber (2015) 61 Cal. 4th
813, 824. Here, Bayati II involves (1) the same cause of action for waste on the same
properties, (2) between the same parties, Kahtan B. Bayati and Town Square, and (3)
after an order granting summary adjudication as to the cause of action for waste in
271 Bayati I, therefore barring the cause of actic·n for waste in Bayati If.
2q II ",. I
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- 2 -DM'wrmER TO COM?lAiNT
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1 3) The fourth cause of action for declaratory relief on the basis of waste and continuing
2 nuisance rises and falls on the first three substantive causes of action, meaning it must
3 fail because Plaintiff has already litigated those issues and claims in Bayati 1, and they
4 are therefore barred by issue and claim preclusion in Bayati II.
5 In addition, Defendants will and hereby do request that this Court take judicial notice of the
6 following documents from Bayati 1 attached as the following exhibit numbers: 1) Complaint
7 Incorporating (Proposed) Amendments (AKA Amended Complaint); 2) Motion for Summary
8 Adjudication of All Causes of Action in the Complaint Incorporating (Proposed) Amendments; 3)
9 Order Granting Summary Adjudication of All Causes of Action in the Complaint Incorporating
10 (Proposed) Amendments; 4) Judgment.
11 FUither, Defendants will and hereby do request thatthis Court take judicial notice of the
12 complaint in Bayati II attached as Exhibit 5.
13 Moreover, Defendants will and hereby do request that this Court take judicial notice of the
14 unpublished opinion in Vista Del Mesa, LLC v. Texaco Ref & Mktg .. Inc., (Cal. Ct. App. July 28,
15 2005) No. B 172850,2005 WL 1774773, attached as Exhibit 6, wherein a demurrer to a continuing
16 nuisance claim was sustained without leave on the basis of issue preclusion from a prior lawsuit
17 between the parties, which found that the defendant had not caused any harm to the plaintiffs'
18 properties, thereby precluding the contention that there was any continuing harm resulting
19 therefrom. This unpublished opinion is non-binding and cited only for persuasive effect, ifany.
20 The demurrer is based on this notice of demurrer and demurrer, the memorandum of points
21 and authorities, the declaration of Christophel' M. Kiernan, the request for judicial notice, the
22 records and file herein, and on such evidence as may be presented at the hearing on the demurrer.
23 DATED: March 26, 2018
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REID & HELLYER A PROFESSIONAL CORPORATION
~/~ SCOTTTALKOV CHRISTOPHER M. KIERNAN Atrorneys for Dofendants Town Sqw.re M Properties, LLC, and William M1.Ish:lrbash dba
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17 IV.
TABLE OF CONTENTS
rNTRODUCTION AND SUMMARY OF COMPLAINT IN BAYATI 11 ............. ............ ..... - 5-
f\UTHORITY ......... ... ........ ......... .......................... ............. ............... ...... .. ........ ....... ........... - 6 -
THE ENTIRE COMPLAINT IS BARRED BY ISSUE AND CLAIM PRECLUSION ... - 7 -
A . On the First and Second Causes of Action for Private and Public Nuisance, Both Underlying Factual Claims Are Barred by Issue Preclusion Because They Were Decided on the Merits Against Bayati and in Favor of Town Square in Bayati I ........... ................. .. .. ............ - 7 _
1. The Court of Appeal in Texaco Affirmed the Sustaining of a Demurrer to Continuing Nuisance Claim Without Leave to Amend on the Basis ofIssue Preclusion .................. ... - 7 -
2. Under the Causes of Action of Waste and Negligence in Bayati I, the Identical Issue of Contamination Caused by Oil Leaked from Vehicles Parked on the Subject Property Was Previously Litigated and Decided ........... .......... .. ...... .... .. ....... .. ......... .. .. ... .. ................. ... .... - 9 _
3. Under the Causes of Action of Waste and Negligence in Bayati J, the Identical Issue of Uncertified Fill Dirt on the Subject Property Was Previously Litigated and Decided - 11 -
B. The Third Cause of Action for Waste is Barred by Claim Preclusion on the Basis that the Claim for Waste Was Already Decided on the Merits Against Bayati and in Favor of Town Square in Bayati I ............................................... ......... .......................................... ........... ..... - 13 _
C. The Fourth Cause of Action for a Declaration ofthe Same Relief Does Not State a Claim Based on the Same Preclusive Effect of Bayati 1.. ....... ... ........ .. ......... ....... .. .......................... - 14-
CONCLUSION ................................................. .. ... ...... .. ........ .. ...................... .. ........... ..... - 15 -
18 DECLARATION OF CHRISTOPHER M. KIERNAN RE: MEET AND CONFER ... .... ....... ... . - 16-
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REQUEST FOR JUDICIAL NOTICE ..................... ............. .. .............. .. .... ... ..... ........................ . - 17 _
PROOF OF SERVICE ... ........... ................................................ ... ......................... ......... .. ............. - 19-
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MEMORANDUM OF POINTS AND AUTHORITIES
1. INTRODUCTION AND SUMMARY OF COMPLAINT IN BAYATI II
Defendants Town Square M Properties, LLC ("Town Square") and William Musharbash
(collectively, "Defendants") demur to the complaint on the ground that plaintiff Kahtan B. Bayati
("Bayati") has unsuccessfully litigated the identical factual issues required for his first two causes of
action for public and private nuisance, and has previollsly litigated the identical cause of action for
waste, in Kahtan B. Bayati vs Town Square M Properties, LLC, et al., Los Angeles County
Superior Court Case Number KC058874, filed by Bayati on June 3, 2010 ("Bayati 1').
Specifically, on December 26, 2017, plaintiff filed his complaint herein ("Bayati IF') against
the same defendants as in Bayali 1. (RIN, Ex. 5.) However, the complaint's four causes of action for
private nuisance, public nuisance, waste and declaratory relief are grounded in issues or claims that
have previously been litigated and decided on the merits against Bayati.
The first and second causes of action, for a continuing private and public nuisance,
respectively, allege the same two issues necessary to the causes of action, specifically (J)the
existence of hazardous substances, contamination and other waste materials in the soil, (collectively
referred to as "Contaminants") and (2) the existence of approximately 15,000 cubic yards of what
plaintiff refers to as "uncertified" fill dirt. (RIN, Ex. 5, at ~~ 19-28.) Both of these issues were
previously litigated and decided in Bayati 1, meaning issue preclusion prevents these factual issues
J 9 from being re-litigated in Bayati II.
20 The third cause of action for waste alleges harm from the Contaminants and uncertified fill
2 I dilt. (RIN, Ex. 5, 'jl31, Ins. 13-15.) However, Bayati alleged an identical cause of action for waste
22 against Town Square in Bayati 1, with Town Square's motion for summary adjudication on the
23 claim of waste having been granted upon a finding that there was no issue aftriable fact, thereby
24 barring the claim for waste in Bayati II.
25 The fourth cause of action is merely a remedy for declaratory relief on the same issues of
26 nuisance and waste, which will rise or fall with the first three causes of action. Since the first three
271 causes of action are barred by issue and claim preciu:;ion, the demurrer shauid be sustained in full.
28 " The ?oints set fotth above are explained ::: full belQw. "Ii " " II li---------- --_.
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II. AUTHORITY
2 Code of Civil Procedure § 430.10(e) provides that a party responding to a complaint may
3 object by demurring on the ground that "[t]he pleading does not state facts sufficient to constitute a
4 cause of action."
5 While a Court on demurrer generally accepts as true the allegations in the complaint, it need
6 not accept as true allegations contradicted by matters of public record or judicially noticeable facts .
7 Code Civ. Proc. § 430.30(a). "[T]he rule is well settled that a complaint otherwise good on its face
8 is nevertheless subject to demurrer when facts judicially noticed render it defective-this on the
9 theory of 'truthful pleading', that the pleader should not be allowed to by-pass a demurrer by
10 suppressing facts which the court can judicially notice." Legg v. United Ben. Life Ins. Co, of Omaha
11 (1960) 182 Cal.App. 2d 573, 581.
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"A trial court may take judicial notice of a prior judgment in deciding whether to sllstain a
demurrer based lIpon res judicata principles, regardless of whether the prior judgment was pleaded,
providing that (I) the court has been correctly apprised ofthe judgment and (2) the party responding
to the demurrer is given adequate notice and an opportunity to be heard as to the effect of the
judgment." Pease v. Pease (1988) 201 Cal.App. 3d 29, 32.
"The doctrine [of res judicata] has two distinct aspects: claim preclusion and isslle
preclusion. _ . , Application of the doctrine of res judicata is intended to preserve the integrity of the
judicial system, promote judicial economy, and protect litigants from harassment by vexatious
litigation. It rests upon the sound policy of limiting litigation by preventing a party who has had one
fair adversary hearing on an issue fi'om again drawing it into controversy and subjecting the other
party to further expense in its reexamination." City of Oakland v. Oakland Police & Fire Ret. Sys.
(2014) 224 Cal.App. 4th 210, 228. "Public policy and the interest of the litigants alike require that
there be an end to litigation." Needelman v, DeWolfRealty Co. (2015) 239 Ca\'App. 4th 7S0, 761.
As explained below, this Court's prior adjudication in Bayati I decided that plaintiff was
unable to establish any harm resulting from what he alleged was contamination and "uncertified fil!
dili" at the property and he did not prevail on his claim for waste. AccDrdingly, the c.lairns in BayClfi
' ) n II " c •. I t· h . .. - b 1 •• d I . " ." 0 il.!.J lor contmumg .13;';;1 tT-")lTl t e same lIi~C!(; i ';y~ i1g tacts are 'irrea b y ;ssue an calm preClli31G;, . ~ ! I ij
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III. THE ENTffiE COMPLAINT IS BARRED BY ISSUE AND CLAIM PRECLUSION
As explained below, the first two substantive causes of action foJ' public and private
nuisance are barred by issue preclusion from Bayati 1. The third and final substantive cause of
action for waste is barred by claim preclusion Bayati 1. The remaining cause of action for
declaratory relief is a remedy based on the claims for nuisance and waste, which will rise and fall
with the first three causes of action. Accordingly, the demurrer should be sustained without leave.
A. On the First and Second Causes of Action for Private and Public Nuisance, Both
Underlying Factual Claims Are Barred by Issue Preclusion Because They Were
Decided on the Merits Against Bayati and in Favor of Town Square in Bayati I
Plaintiff's first cause of action is for continuing private nuisance against Town Square
alleges the "existence of hazardous substances, contamination and other waste materials in the soil,
and indeed the existence of 15,000 cubic yards of uncertified fill dirt on the surface of the Subject
Property." (RIN, Ex. 5, ~~ 19-24.) Plaintiffs second cause of action for continuing public nuisance
alleges the same two issues necessary to the litigation, that: "The nuisance created by the existence
of improperly compacted, uncertified fill dirt, hazardous substances, contamination and waste in
and on the ground at the Subject Property." (RJN, Ex. 5, ~~ 25-28.)
However, these two, factual issues necessary to both private and public nuisance- the
Contaminants, and the 15,000 cubic yards of"uncertified" fill dirt -were previously litigated in
19 Bayati J and are therefore barred by issue preclusion.
20 The goal of issue preclusion is to "prevent[] reJitigation of previously decided issues ... The
21 point is that, once an issue has been finally decided against such a party, that party should not be
22 allowed to relitigate the same issue in a new lawsuit. Issue preclusion operates as a shield against
23 one who was a party to the prior action to prevent that party from relitigating an issue already
24 settled in the previous case." DKN Holdings LLC v. Faerber (2015) 61 Cal. 4th 813, 826-27.
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1. The Court of Appeal in Texaco Affirmed the Sustaining of a Demurrer to a
Continuing Nuisance Clnim Without Leave to Amend on the Basis ofIssue
Preclusion
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Courts have barred a claim for continuing nuisance on the basis of issue preclusion when it
is filed after prior litigation between the parties finding no harm caused to plaintiff by the defendant.
In the 2005, unpublished opinion of the California Court of Appeal in Vista Del Mesa, LLC
v. Texaco Ref & Mktg .. lnc. (Cal. Ct. App. July 28, 2005) No. Bl72850, 2005 WL 1774773, a copy
of which is attached to the request for judicial notice as Exhibit 61, issue preclusion from prior
litigation was found to bar a claim for continuing nuisance. In Texaco, the plaintiff had filed an
earlier case filed in federal court alleging harm to plaintiffs' properties, which was dismissed on
summary judgment in favor of Texaco upon finding that Texaco had not caused any harm to
plaintiffs' properties. Thereafter, the plaintiffs filed a state court action for continuing nuisance,
claiming that a Texaco service station had leaked petroleum on their property. Id. at *2.
In response, defendants raised issue preclusion on demurrer, which was sustained without
leave to amend by the trial court, which was in turn affirmed by the Court of Appeal for the Second
District. The Texaco COUlt explained that: "It thus was incumbent upon plaintiffs to plead facts
aIleging contamination of their property by defendants other than the contamination previously
found not to have been caused by the Texaco service station and the Shell pipelines. The
conclusional allegations of new and continuing contamination were insufficient." Id at *5. The court
continued that, because "[t]he question of defendants' causation of plaintiffs' damages was actually
litigated and necessarily decided in the federal action" and the other factors of issue preclusion were
met, "[c]ollateral estoppel therefore applies." Id. Further, the court explained that "Plaintiffs fail to
set forth any specific facts they could allege that would constitute new releases of contaminants by
defendants since the filing of the federal action, which is necessary to avoid the collateral estoppel
22 effect of the judgment in that action." Id.
23 On this basis, the Texaco court affirmed the trial court's decision to sustain the demurrers
24 without leave to amend, finding that the plaintiffs had not "demonstrated that [the trial court]
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l : The ~npl!blished opinion in Texaco is cited .Q111v for persue;sive value, ifany. No contention II
'l ~s I~a.de tha~ t.h:.: ~pinion ~s bind in? ~I:. ~hi5 Court. The !e.~:ac!) opinion is. properiy t.h; SL'.bj~.c~ ~f ... 8 llldlclal under !:'.vldence Code § t.j·~2((1H U, as set forth m rhf. ::t~.companymg re0uesf , Of JudICial I I ~ . . " ... 1
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abused its discretion in denying them leave to amend, in that they can allege facts sufficient to state
a cause of action not barred by collateral estoppel principles."
Other courts have come to the same conclusion in different contexts. For example, one court
found that "[a]n activity which has been found per ... entry of judgment not to constitute a
nuisance as a matter of law cannot become a nuisance merely by virtue of the passage of time."
Harmon v. Adams, (Ohio Ct. App. May 1,2002) No. 14-01-27,2002 WL 987914. Rather, Harmon
found that a trial court must determine "whether the judgment in the original action was tantamount
to a determination that the activities complained of do not constitute a nuisance as a matter oflaw."
Harmon explained that "these activities cannot become a nuisance merely by virtue of the passage
oftime or support an action for continuing nuisance predicated upon identical conduct." Accord
Barth v. Town of Sanford (D. Me. Nov. 5,2001) No. 01-208-P-C, 2001 WL 1356157 (D. Me. Nov.
5,2001); see, e.g., City of Chicago v. Harris Tr. & Sav. Bank, 56 Ill. App. 3d 651, 655-56 (Ill.
1977) ("To hold that a prior adjudication on the merits is not a bar to the relitigation of the same
case simply because each day the alleged violation exists constitutes a separate and distinct offense
would be to defeat the purpose ofthe resjudicata doctrine.").
Indeed, this principle arises from the corollary that, in a continuing nuisance action filed
after a prior adjudication found that a nuisance existed, "the defendant is estopped to deny the
existence or character of the nuisance or the plaintiff's right to recover, and the latter need only
prove that the nuisance remains in the same condition as before, or in a more or less damaging
condition." Rible! v. Ideal Cement Co., 54 Wash. 2d 779, 78 (V'lash. 1959).
21 As explained below, Bayati cannot evade the principles of issue preclusion by alleging a
22 continuing nuisance based on the same facts already adjudicated to have caused no harm.
23 2. Under the Causes of Action of Waste and Negligence in Bayati I, the
24 Identical Issue of Contamination Caused by Oil Leaked from Vehicles
25 Parl{ed on the Subject Property Was Previously Litigated and Decided
26 The elements of issue preclusion require: "(I) final adjudication (2) of an identical issue (3)
27 actually litigated and necessarily decided in the first case and (4) asserted aga.inst one "vho was a \I
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party in the first case or one in privity with that party." DKN Holdings LLC v. Faerber (2015) 61
2 Cal. 4th 813, 824-25.
3 The Supreme Court of California explained that, "[f]or purposes of collateral estoppel, an
4 iss~e was actually litigated in a prior proceeding ifit was properly raised, submitted for
5 determination, and determined in that proceeding." Hernandez v. City of Pomona (2009) 46 Cal. 4th
6 50 I, 511. To determine whether the issue was actually litigated, "COUIts look carefully at the entire
7 record from the prior proceeding, including the pleadings, the evidence, the jury instructions, and
8 any special jury findings or verdicts." Id. Further, the '" identical issue' requirement addresses
9 whether 'identical factual allegations' are at stake in the two proceedings, not whether the ultimate
10 issues or dispositions are the same." Id. at 512.
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Here, the issue of the non-existent harm from the Contaminants was decided after final
adjudication of an issue, actually litigated and necessarily decided, in Bayati I, meeting the first and
third elements of issue preclusion. Specifically, in the Bayati 1 Amended Complaint, Bayati alleged
the issue of Contaminants, necessary to the fourth cause of action for waste and fifth cause of action
for negligence therein. (RJN, Ex. I, ~ 16 & RJN, Ex. 5, ~ 10.) In the motion for summary
adjudication in Bayati J, Defendants raised the issue of the Contaminants, explaining that "Bayati
has no evidence that the Property was contaminated, or that it was damaged at all by the brief
storage ofvehicles and machinery on the Property. And he certainly cannot show the permanent
injury and effect on market value required to establish a cause of action for waste." (RJN, Ex. 2, p.
25, Ins. 5-10.) The motion for summary adjudication was granted by the Court as to the waste and
negligence cause of actions, "find ing no triable issue of fact, as to ... the Fourth Cause of Action for
Waste;,the Fifth Cause of Action Negligence." (RJN, Ex. 3, p. 2, Ins. 13-17.) FUither, the Court
fOllnd "no triable issue of fact to establish fraud or inducement, relating to any waste on the
property, for any damage to the property relating to waste or negligence." (RJN, Ex. 3, p . 2, Ins.
17-20.) The judgment in Baya/i I confirmed that: "On the merits of the motion [of Town Square for
summary adjudic3.tion,] the Court Granted the motion finding no triable issue offact as to ... the
FOllrth Cause of Action fo\' Waste [and] ~he Fifth Cause of Action for Neg!igence ... . " (RJN, Ex.
28 14, p. 2, lns. 1-7.) Therefore, the C0:1t::,;11nants is~uc was ~rGperly raised in the EaY;D 1 motion for
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) summary adjudication, submitted for determination, and determined in the motion for summary
2 adjudication proceeding before the cOllrt, satisfying the first and third elements for issue preclusion.
3 For the second element of issue preclusion, the Contaminants issue in BayaJi I and Bayati 11
4 were identical and had "identical factual allegations," as required by Hernandez. Specifically, both
5 the Bayati 1 Amended Complaint and the Bayati 11 Complaint allege the Contaminants originated
6 from the parking of construction vehicles on the property in the fall 0[2008. (RJN, Ex. 1, ~ 16;
7 RJN, Ex. 5, ~ 10.) Further, Bayati I and Bayati 11 identify this as the sole source of the
8 Contaminants alleged therein. (RJN, Ex. 1, '\1'163, 70; RJN, Ex. 5, ~~ 16-17.) Therefore, the
9 Contaminants issue is identical in Bayati I and Bayali II and supported by identical factual
10 allegations, satisfying the second element of issue preclusion.
11 Lastly, the parties in Bayati I and Bayati II are identical, namely Plaintiff Kahtan Bayati and
12 Defendants Town Square M. Properties and William Musharbash. (RJN, Ex. 1, '\11-4; RJN, Ex. 5,
13 '\1'\11-6.)
14 Accordingly, all the elements for issue preclusion on the Contaminants has been met,
15 meaning the nuisance causes of action cannot be based upon the Contaminants, which have been
16 found not to exist as a source of harm to Bayati.
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3. Under the Causes of Action of Waste and Negligence in Bayati I, the
Identical Issue of Uncertified Fill Dirt on the Subject Property Was
19 Previonsly Litigated and Decided
20 As explained above, the elements of issue preclusion are that: "(1) after final adjudication
21 (2) of an identical issue (3) actually litigated and necessarily decided in the first case and (4)
22 asserted against one who was a party in the first case or one in privity with that party." DKN
23 Holdings LLev. Faerber (2015) 61 Cal. 4th 813, 824-25.
24 Here, the issue of the "uncertified" fill dirt also meets ail the elements of issue preclusion
25 and should be barred as to the claims ofpubJic and private nuisance. Specifically, the issue of the
26 non-existent harm from the "uncertified" fill dirt was decided after final adjudication of an issue
27 actuaily litigated .l:ld necessarily decided in Bayali 1, thereby satisfying the first and third elements
28 I of issue j)[c~jLlsjon. Specificaiiy, in Btiyali J, ,he Issue of til! dirt was raised by B~~yati during the
II - ! J -_·. _____ 0_.___________ DEMURnE!~ TO COl\-iPLATNT __ ,,_0. II AA0103
... -....
discovery process and included in the "Facts Relating to Bayati' s Allegation That Defendants
2 Damaged The Property By Contaminating It With Hazardous Waste Through Leakage From
3 Machinery And Vehicles" section of defendants motion for summary adjudication, describing the
4 allegation that "fill dirt" was "improperly added to the subject properly ." (RJN, Ex. 2, p. 10, Ins. 27-
5 28.) Despite these allegations concerning the fill dirt, the Court still found "no triable issue of fact to
6 establish fraud or inducement, relating to any waste on the property, for any damage to the property
7 relating to waste or negligence." (RJN, Ex. 3. p. 2, Ins. 17-20.) Once again, the judgment in Bayali I
8 confirmed that: "On the merits of the motion [of Town Square for summary adjudication,] the Court
9 Granted the motion finding no triable issue offact as to ... the Fourth Cause of Action for Waste
10 [and] the Fifth Cause of Action for Negligence .... " (RJN, Ex. 4, p. 2, Ins. 1-7.) Therefore, the
11 issue of "fill dirt" was actually litigated and necessarily decided after final adjudication, meaning
12 the first and third elements of issue preclusion are met.
13 For the second element of issue preclusion, the issue of fill dirt in the Bayati I Amended
14 Complaint is identical and has identical supporting factual allegations to the fill dirt issue in the
15 Bayati II Complaint in that both allege that, in or about July 2009, Defendants obtained a grading
) 6 permit from the City of Pomona. (RJN, Ex. 1, ~ 18; RJN, Ex. 5, ~ 13.). Further, the Bayali II
·17 Complaint alleges that the "uncertified" fill dirt was put on the property shortly after obtaining the
18 grading permit "on or about July I, 2009," meaning it was prior to the Bayati I complaint being
19 filed on June 3, 2010. (RJN, Ex. 5: p. 5, ~ 11, In. 27 & , 13, p. 6, Ins. 26-27.) Therefore, both the
20 Bayati I and Bayati II cases allege the identical issues offill dirt and supporting factual allegations,
21 thereby meeting the second element of issue preclusion.
22 Lastly, the parties in Bayati I and Bayati II are identical, namely Plaintiff Kahtan Bayati and
23 Defendants Town Square M. Properties and William Musharbash_ (RJN, Ex. 1, , 1-4; RJN, Ex. 5,
24 ~~ 1-6.)
25 Accordingly, all the elements for issue preclusion on the fill dirt issue have been met,
26 i meaning the nuisance causes of action cannot be based upon the fill cI irt issue, which has been I
27 1 found not to exist as a source of harm to the Bayati. Because both al!egations necessary to the ! i
28 i causes of action for private and public iwisance are barred b~ issue preclusion, the entire ciaim for
I I~------I
- 12 - --------------•. ------.1 DEMURRER TO CGYi?LAINT
AA0104
,--., . \ ~. )
private and public nuisance is unfounded and the demurrer to those causes of action should be
2 sustained without leave to amend .
3 B. The Third Cause of Action for Waste is Barred by Claim Preclusion on the Basis
4 that the Cause of Action for Waste in Bayati [Was Already Decided on the Merits
5 Against Bayati and in Favor of Town Square
6 The eleinents of claim preclusion are that: "Claim preclusion arises if a second suit involves:
7 (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in
8 the first case." DKN Holdings LLC v. Faerber (2015) 61 Cal. 4th 813, 824. "If claim preclusion is
9 established, it operates to bar relitigation of the claim altogether." Id.
10 Here, the same cause of action for "waste" found in the Bayati I Amended Complaint and
lithe Bayati II Complaint. Specifically, in the Bayati [ Amended Complaint, Bayati cites caseJaw
12 defining waste as "the unlawful act or omission of duty by a person in possession of real Properties
13 that results in an' injury to the Properties." (RJN, Ex. 1, ~ 59, p. 12, Ins. 6-8.) Under the cause of
14 action of waste in the Bayati II Complaint, Bayati asserts that "the damage and waste committed
) 5 upon the Subject Property by Defendants, and each of them, is in excess of the damage and
J 6 destruction to the Subject Property expected from the reasonable use and ware from the operations
17 to be conducted by Town Square in accordance with the terms of the Lease." (RJN, Ex. 5, ~ 31, p.
18 12, Ins. 16-19.)
19 Second, Bayati I and Bayali II involve the same parties, namely Plaintiff Kahtan Bayati and
20 Defendants Town Square M. Properties and William Musharbash. (RJN, Ex. 1, '11-4; RJN, Ex. 5,
21 ~~ 1-6.)
22 Th ird, the cause of action for waste in Bayati [was decided after a final judgment on the
23 merits. Specifically, the Court granted Town Square's motion for summary adjudication as to the
24 calise of action for waste, "finding no triable issue of fact, as to the following causes of action in the
25 Amended Complaint. .. the Fourth Cause of Action for Waste," finding "no triable }ssue of fact . ..
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1
re~a:ng t~ any w:ste on the property [or] fo r any damage to the Drooerty relating to waste." (RJN,
27 Ex.~ , p. 2, Ins . I r) 9.)
23 I I 1_._- - i3 - --------_._--
I! DEMURRER TO COMr'LAINT
AA0105
1 Accordingly, because Plaintiff has (1) alleged the same cause of action for waste (2)
2 between the same parties, Bayati and Town Square, and (3) there was a final judgment on the merits
. 3 to the cause of action of waste in the form of a summary adj udication in Bayali I, the demurrer to
4 the third cause of action for waste should be sustained without leave to amend.
5 C. The Fourth Cause of Action for a Declaration of the Same Relief Does Not State a
6 Claim Based 011 the Same Preclusive Effects of Bayari I
7 Plaintiffs remaining cause of action for declaratory relief flows from the first three
8 substantive causes of action and, because dismissal of those causes of action are warranted as
9 demonstrated above, dismissal ofthis cause of action for declaratory relief is also warranted .
10 Specifically, for the fourth cause of action for declaratory relief, a court "cannot analyze
11 requested declaratory reliefwithout evaluating the nature of the rights and duties that plaintiffis
12 asselting, which must follow some recognized or cognizable legal theories that are related to
13 subjects and requests for relief that are properly before the cOllrt. In the context of a demurrer, the
14 court will evaluate whether the factual allegations of the complaint for declaratory reliefreveal that
15 an actual controversy exists between the parties." Cummins COlp. v. United Stales Fid. & Guar. Co.
16 (2016) 246 Cal.App. 4th 1484, 1489.
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Here, the fourth cause of action in the Complaint sets forth that:
"(a) Plaintiffs allegations with respect to the alleged contamination. waste and continuing nuisance that exists on the Subject Property, as alleged hereinabove, are true; (b) that Defendants, and each of them, had the responsibility and liability to pay such costs and damages that have been, or will be, incurred for their prior wrongful activities at the Subject Property, including but not limited to the repair, investigation, assessment, monitoring, treatment, removal , remediation and cleanup of any hazardous substances, waste, uncertified fill dirt andlor contamination of the Subject Property; and (c) that there has been diminution of market value and loss of use of the Subject Property due to Defendants' unlawful activities on the Subject Property."
25 (RJN, Ex. 1, ~ 36.) Accordingly, the declaratory relief calise of action is merely a remedy for the
26 causes of action for nuisance and waste. As explained above, no actual contiOversy exists as to any
27 ofthe three causes of action on the basis of issue and claim p~ec\l~sion, meaning thE demurrer to the I
28 I fourth ·:3US~ of action for dec!a~z:t;:>ry rdief should cc sL! s~i!ined without lea\.';;; tc amend. I .
!!.--------------nElVUJRn.ER-~{i_~;.JMPLAINT ----··--------·-··-·--1 II I II AA0106 I
( ( \
IV. CONCLUSION
2 As explained above, Bayati's first two causes of action for nuisance are barred by issue
3 preclusion and the third cause of action for waste is barred by claim preclusion. Further, Bayati's
4 fOtllth and final cause of action seeks declaratory relief as to the nuisance and waste issues is barred
S by the same principles.
6 Accordingly, Defendants respectfully request that this Court sustain this demurrer as to all
7 causes of action without leave to amend.
8 DATED: March 26, 2018
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REID & HELLYER A PROFESSIONAL CORPORATION
~r~ SCOTT TALKOV CHRISTOPHER M. KIERNAN Attorneys for Defendants Town Square M Properties, LLC, and William Musharbash dba JB Petroleum
- !5 -._-_._---- .---------_ .. DEMVRRER TO CO:\-YPi..l·\.\NT
II AA0107
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DECLARATION OF CHRISTOPHER M. KIERNAN RE: MEET AND CONFER
I, Christopher M. Kiernan, declare:
I_ I am an attorney duly licensed to practice in all courts of the State of California and
an associate of Reid & Hellyer, attorneys of record for Defendants Town Square M. Properties,
LLC, and William Musharbash herein. The facts set forth herein are of my own personal knowledge
and if sworn I could and would testify competently thereto_
2. Before filing this demurrer to the Complaint, I met and conferred with plaintiffs
counsel, Mr. John Millar, of Kennedy and Souza, APC, as required by Code of Civil Procedure §
430.41(a)(1) for the purpose of determining whether an agreement could be reached that would
resolve the objections to be raised in the demurrer. I did so by email dated March 19,2018.
3. In my email to Mr. Millar, I specified all four causes of action in the Complaint, to
which I explained the position set forth in this demurrer that the first two causes of action are barred
by issue preclusion and the third cause of action is barred by claim preclusion_ I also explained that
the fourth cause of action is a remedy that rises and falls on the first three causes of action, meaning
every cause of action in the Complaint is subject to a demurrer.
4_ I received Mr. Millar's response to my email on March 20, 2018, disagreeing with
our position that the first two causes of action are barred by issue preclusion, but stating that he
would re-evaluate the cause of action of waste, and may dismiss the cause of action for waste prior
20 to the hearing on the demurrer.
21 5. Since we could not agree on all four causes of action, Defendants submit this
22 demurrer. Defendants did so timely on the basis of written extensions £i'om plaintiffs counsel for
23 the demurrer to be filed on or before March 27,2018.
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I declare under penalty of pe\jury under the laws of the State of California that the foregoing
is true and correct.
Executed on March 26, 20 j 8, at Riverside, California.
a.MJ-~.d~
Chris Kiernan
!j
\1-------·---.I
- 16 ---_·_--_·_--·-----_·--------------------1
AA0108
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REQUEST FOR JUDICIAL NOTICE
2
3 Moving Defendants hereby request judicial notice of the following pleadings filed in Kahtan
4 B. BayaU vs Town Square M Properties, LLC, Los Angeles County Superior Court Case Number
5 KC058874 filed on June 3, 2010, under Evidence Code Section 452(d)(1), as "records of any court
6 of this state," and Evidence Code Section 453:
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1) Complaint Incorporating (Proposed) Amendments (AKA Amended Complaint) of
Plaintiff Khatan B. Bayati dated September 29,2012, a true and, correct copy of which is
attached as Exhibit 1;
2) Town Square, William Musharbash and JB Petroleum's Motion for Summary
Adjudication of All Causes of Action in the Complaint Incorporation (Proposed)
Amendments of Plaintiff Khatan B. Bayati filed on June 21,2013, a true and correct
copy of which is attached as Exhibit 2;
3) Order Granting Summary Adjudication of All Causes of Action in the Complaint
Incorporating (Proposed) Amendments of Plaintiff Kahtan B. Bayati filed on September
19,2013, a true and correct copy of which is attached as Exhibit 3; and
4) Judgment dated AprilS, 20]6, a true and correct copy ofwhich is attached as Exhibit 4.
Moreover, Defendants request judicial notice of the complaint filed in this action on
December 26,2017, a true and correct copy of which is attached as Exhibit 5.
Further, Defendants request judicial notice of the unpublished opinion fi'om the California
Court of Appeal for the Second District in Vista Del Mesa, LLC v. Texaco Ref. & Mktg., Inc., (Cal.
Ct. App. July 28, 2005) No. B 172850,2005 WL 1774773, a copy of which is attached as Exhibit 6.
This opinion is properly the subject of judicial notice pursuant to Evidence Code 452(d)(J) as a
"[r]ecord[] of [] any court of this state." See Raft Moghadam, Judge Nullification: A Perception of
Unpublished Opinions, 62 Hastings LJ. 1397, 1400 (2011) ("In this battle between the no-citation
rule [under Rules of Court, Rule 8.111S(a)] and judicial notice [statute under Evidence Code
4S2(d)(1)], the staI'Jte overrides the rule. Llconsistency between the no-citation rule and the judicial
I notice statute 1S fatal to the former. "); California Constitution Article VI, § 6(d) (iudiciaJ c0uncil I . !---- - p----_ .. _------_ ... _ <
I DEMURRER TO COl\'.PLAXNT
AA0109
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shall "adopt rules for court administration, practice and procedure, and perform other functions
2 prescribed by statute. The rules adopted shall not be inconsistent with statute"); see, e.g.,Inland
3 Western Temecula Commons v. Potter (Cal. App. 4th Dist. Sep. 18,2014) No. E05785, n. 2,2014
4 Cal. App. Unpub. LEXIS 6590 (unpublished) ("we may take judicial notice of the unpublished
5 opinion [from an unrelated case] as a court record pursuant to Evidence Code section 452,
6 subdivision (d)(l)"); accord Inland Western Temecula Commons v. Barber (Cal. App. 4th Dist.Sept.
7 22, 2014) No. E057241, n. 2, 2014 Cal. App. Unpub. LEXIS 6688 (unpublished). The Texaco
8 opinion is not binding authority and is provided to this Court only for its persuasive value, ifany.
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271 '78 ,I .. Ii
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DATED: March 26,2018
,,---------_._-'I l-n
REID & HELLYER A PROFESSIONAL CORPORATION
J-cdt/~ SCOTT TALKOV CHRISTOPHER M. KIERNAN Attorneys for Defendants Town Square M Properties, LLC, and William Musharbash dba JB Petroleum
__ ____ =-_18_-___ . _______ .. __ _
AA0110
