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Filing # 198774612 E-Filed 05/21/2024 08:06:03 AM IN THE COUNTY COURT FOR THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI DADE COUNTY, FLORIDA CASE NO. CcCc20 JUDGE CIVIL DIVISION COMPLAINT Diversible Investments LLC Plaintiff(s) -Vs- Zuzel Calderon Enamorado and Carlos Caballero And All Others in Possession Defendant(s). / COUNT I - TENANT EVICTION Plaintiff sues Defendant(s), and states: 1. Plaintiff is authorized for business in this county. 2, Plaintiff owns real property in this county described as: 1015 NW 42 Street Miami, Florida 33127 3. Defendant(s) reside(s) in this county. 4. This is an action to evict Defendant(s) from the property. 5. Defendant(s) retain(s) possession of the property under a written agreement to pay rent of $3200.00 per month payable on the first of each month. A copy of the lease is attached hereto as Exhibit "A", 6. Defendant(s) failed to pay May rent 7, Plaintiff served Defendant(s) with a notice on May 9, 2024 to cither pay rent or deliver the premises, but Defendant(s) refuse(s) to do either. A copy of the Demand for Rent Notice is attached hereto as Exhibit "B". 8. Defendant(s) owe(s) Plaintiff, the following: rent for the month(s) stated in paragraph 6, totaling $3200.00, and rent as it becomes due. 807689. Failure of Defendant(s) to pay rent as due caused Plaintiff to retain the undersignedattorneys to represent them in this action and to agree to pay said attorneys areasonable fee for their services and costs, which Defendant(s) should pay pursuant toFlorida Statute Sec. 83.48 and the lease agreement .WHEREFORE, PLAINTIFF DEMANDS JUDGEMENT FOR POSSESSION OF THEPROPERTY AGAINST THE DEFENDANT(S) AND FOR OTHER JUST RELIEFINCLUDING COURT COSTS AND ATTORNEY’S FEES.Dated: May 16, 2024s/ Kenneth J. Lowenhaupt, Esq.Email: pleadings@fl-landlord.comFlorida Bar#: 0761532Attorney for Diversible Investments LLCLaw Offices of Lowenhaupt Sawyers and Spinale7765 S.W. 87th Avenue, Suite 201Miami, Florida 33173(305) 412-5636 80768© SEC Othe if th property, of whl side! nt, | it Ol Durr is duex in the , utilties, oh he We prem cupied by I a sted the ises hres: duding midayi hiday date fore th ‘ay, ‘this< ‘addres: ABN ets phone: is poticahi fen that, ree da" livery a vonsplci $he pre Sig vege Boy Ty. Residential Manth, 23 Month Leav e Agreament ‘DATE: FONE 6, 2023 Cavet Bape PREMISES: 1018 SW 4291, MIAMERL 33727 LESSOR: DIVERSIBLE INVESTMENTS LLC. LANDEORY. “Oe RESIDENTS: OR LESSEES; BOX 402608 MLAMT MI BEACH FL. 33141. 195i, dP ZUZEL LIER fON: ENAMORADO, 7 CABALLERO: OLIVAR, DOR AND 2) CARLOS aneuNTQ COLOMBIA PA Sma Property Addease Lease stazt 1016 NwazsT MIAMT 33127 _ 6-06-2005 Renan MONTH. SER ITEM 8, Monthy | ‘Residene Paysr =< Seouring Pet Fees $500- nox selandanle. Payments; Depasie 438 someeSlectrcty | | War ex /Bwwite/F ‘Move:lir Balanves Piest month ent, CablowitReogele $4,800 socuvity rosits S180 $3,200. Trah/Lawn Yard, Plus. s60- ¥4,800- Spot balegee ctae Pa , inalixtenance, Pegt laser, sontral: IDENT /S-¢ Resident/e hereby centifies thar all taformation Trodeed secu as orkect and thar they inive read and! nadenstani col a cei ‘this agreementis trite, nent andl waite the right to elaine : t Tr 11): S/R it O% ) hereinafter seferred yo a3 "Residents yr bs, te § fhe? Kee Ze. eubas, a CO Pe Of90 — Datof WAME Date-« sirthy imu oceupadts: PIVE 251 « Name. ob Qecuat pen. Lesson had delivered amd, Rewer dewapted! those addendaahdJor aontinots indicated below, and! Legsea ugrees to tha following Rules atid Reg ila ttions: Ge. Rady Termination Addendian. fe, Mabtnianange Addendum. CL No amenities In promises. Tassea agrees to taaintain. Lawii out at awn éast. No Planiftese, trimming /eotting.. sen WE: ate nt noe Setvicemember Status per FB. 280.08, (hitpe://wwew dean te. gov/Taws /euwen 2021tes /280:02 / ). Ze,Nv RV, BUS, CROCK andor Boat Parking Tn tront yard of Pee nalace, Ok ig badleyard, = No vehick repair and of other mechanic, apale work af kein ? SPECIAL PROVIS)SIONS: A} NO PETS, PET FEE, ~) NO SMOKI INSIDE PREM =C) NO. PERSONAL CHECKS ~D) RENT BAYMENTSSH. AL Ey NO MOPORCYCLE/BICYCLE PARKING INSIDE, PREMISES ~ INO ELITE DISHES AND- OR CABLES MOUNSD ON ROOE TILE OR PACTA— G) CABLE CTY / INTERNET WIRED CONNEGELONS SHALL BE, COORDINAT ED WE LANDLORD PRIOR TO ANY INSTAL OR LOCATION, ANTS DIRECTIONS ASO ADU PERIDOI STOVE BE. U.CATY AND OR OTHER AUTHORY CITATION OR VIOLATI FOR LES: FAILURE. 'TQ MAINTAIN PROPERTY RESIDENTIAL, SHALL.BE PAID FOR BY LES SEH E, AND MAYOR BE USE OTHER ‘THAN CAUSE FOR LEssoR EARLY TERMINATION OF LEasn. INI Za TAO :C Page Loftsent erties aoe seen instante tne sane wom ean tan aon oe _--— en neeI “THIS Residential Ledioukpieentene sensi taade and entered. inte on the date set foxtly hereinabove, by and between Hie pasties, stated above, with Residents listed jointly and severally if moe than ones t. DEMISE, In exchenge forvaluable considemton including, withewt limitation, the promise hy Resident (6. pay landlord whe seatal. paymenes sor fortlod jo, and. the patiormance by Resident of all other tontns, conditinds avd covenasits comtained dn this residential lense. apreement av-well ax any addenda. herate (ony and all such addenda axe.incorporated. harein by seference and made « part harenf) Landlord agrees to _lease:tes Resident and! Resident agrees to lease from Landlord the ApactRent atthe address: deadeitied abave. _ 2 TERM, ‘The set) of thix Loaxe shall be Tos the periodset fords dhave, ‘The fact that Resident i premiscs pdorto the seam off this: Leuse.as defined in paragraph herelaabowe in no way wffeet the fore: of thiz leave, Porlonmance of all abligations, covenants and nonditiogs sul be due form both: cmamager and resident as af the inoveia dite. ‘hr the evens that the sabject demised promises in amr avatlable ws Resident for occugmuey on the commencement date of this Lease 4s: aforesaid. due 0 -zonsteuction delays or the falture ofa prlor resident to timely vacate the promises,of fot any dther teayad Weyond the eons!af dhe Landlord, the Landladd shell not be Hableto lent for -any damapes arising from suite, ail this lease shall xemwmit in, Gall Force md effect In-such event, however, the Resideot shall ave be dilsle fox paying, rene to Landtord on 4. prorated basis for those: days dusing the fitst calendar nioith of osenpancy that the subjeee demived promizes wae not available for ace by Resident ‘Upon the faiture of Landiond ts. deliver possession os Resident within ten, (10): days. er written densand by Resident, Residents say declaze shie Apreement null and void andl of a force or effect from tis Inception and Landlord ghall x¢fund to: Resident any stconity dupasit ind/en other amounts paid Landlord: by Resident in conjmotion with this Lasse Agrecitent only: 3. (RENT, ‘The Resideat agtees to pay te Landised is sdieanes at tho corumeicemeat dateof this Lease and thereafteron the first dayof gach, and every consecutive éalendar month thereafter, ‘sisal~ _ oe —. - thes anenuy-arder or cashier's check, the monthly sental atnaust. sor forth ereinabowe The Li twit not accept personal checks for payment of tent, Rent shallbe paid by ait to Landloxd’s bank wenoant Zelle ottly, ot ax eted, Landlotd shall ih ageept yient Of vent Bers a not-isidans, Kor, grnposes of this Lense Agueementit dhall. be derefutably presuinied that Besitlunt Kay nov puid uit woloss Resident can prodvae aeanceled check or moncy order purporting to: prove tet baa Been paid ta Landlord. if this Leage commenses-on a date-other than ths fikst day of the month, the Resident shall be sespotisthle for paying: Latdlord 4. peasated amount of sald seat based upon, the actual numberof days.iv the fizsk month. of the tenancy that Resident occupied the Apattnsent, is astount shall berpayalile:in ax nce to Landlord, All tite feo and returned a: dishonosed check fees xefertad. to. int paragraph fous (i) of vhis Agreemens shall te deemed as. additional conc fon the purposes of this Aprecmment. Landlord may proceed with an action for possession dad hedach.of contaer at tHe expization of the hts Day Mutice, If Rusitlegt will he absent from ‘thy premises fosmse than foutiven days, Re ioust aptly Landle je-surlting, 4, LATE PAYMENT AND RETURNED CHECKS AND CHARGES: A One Hundred ¥ifty Diullats and 16/100 G150.00-) anm will be due ay alate Feo for rant received after G40 punt. aa the HIRST (91) dayof the setital moneda: THE 6TH DAY OF EACH MONTH Late fees will be due even If rout semains anpald and Landlord proceede-with-an évlotign and beach of eusinet action: ‘Que Hundeed Dollars and na/10 7910000) will be due for cach dishowored neat payment Late fers vail alse Bisappplied if rentfs paid weith.a dishonored payment, a ‘Lvailiad saree vin dgliemv ceigias all verre pageants on te doadua hig sxeeeeny edits, calsioey chnel: or wire wansfer ro Landlond’s lmak coos, Resident agrees that any dishonoxed payment by the hank shall be xevexmed from Laadlord by" ‘Resident tx Gull, ticluding all charges as aforesaid, lyr aadhier's check, mony oxen wi cuetified cher swithia ceventy-Eone (24) tious of delivery sof weistenr deinaed Hy Landlord. Any dishomemd puynenn "HSIEVBALS¢ Page 219 tne ween netestmeee aie ete tenes aint nem we‘whith:fs setutied gud/oe tedeamed after the date rent ty dine under isis taupe. ball. be Qeamed delinguont aid. suth zoatdl payment shall be enbject to the: Inte fee, and! peosldiey we forth Wevein, ket addition, Reside mt al pay te: Landlord any amd all cosssincurted by Landlordin the collectlon. df any dishons * ‘0k accupt personal thanks. Nae All wach Ghanges. sex forth in the ding setdoas of this paragraph. four Gy shull he deemed additional rent for purposes of this agreement and. L ‘shall be xeepwinest to give Resident watutory fhece-day notice and wot « seven day matiea for paysent of same, Te fs agreed ant andexsiaod! that Landlo is andex no: rd obligation teadeept paymantof rent and for’ adtdidonal sent as. Uefined heraitiaboug after eepleation of the statutory thteday notiewperind foxmonpayment of rent, 3. SECURITY DEPOSIT, Resident agrees to pay to the Landlord « total Securiey Deposit in the aitiotitof FOURTY EIGHT HUNDRED ($4,800-) payable prior ta move in. Resident’ failure:to yay the depoait ax inslicated shove for any seman whatsoever will Be wonsidered. a awaterlal Broach of this agreement. ‘The depasit-will be relurned to Resident withia thistyy (Bt) days after-the Apartment.is vacated 1f tye following terms and conditi have been falfilled: [® Gortglete meation. of the autive premises by Readent and occupants ou, ox bolore the date specified in the counived weliten notice pre this lease cx Bloaidda Seamtas, Lb. Payment by Resident of afl rent xem wired under the Lease, ap-ro aud including'the date éf expinon ox termination:nf the texos of the Lense: es “Yhozough cleaning ofthe premises, including, but wow eared to, all kitelea ‘appliances. (eefilgeratos, oven, range, dishwash baths, er},carpet, tile, walls, dosats/storape. ateas, patios/Baleonies, cic.s2 28 to beter thesanve conditio a8 xamie n wets inca fhe commencement date of the tem of the noma] wearand tear excapred, d. An abstace of defect ia or damage to tha promises, whether caused by Resident, occupants, pets or otheswdse, unless included oi the wines Ust of damages and defects asset aut tn Resident's Lease. e ‘Obsateunee and perfoumance by Resident of all of the other covenants and obligations of Resident amdes the Lease, from the date af commencement of the: Lease up-to and in the date affae a sponnes oo} = wexplation-ec-teemination-the temm of this Lease, of orup to aud ineladin the tinal Gayraf theg Liege = £ Observance andl performitce by Resident of all ruler and regulations: pertaining to Resident usded the Lease, indluding witheyt limitation, fhose ries mad regulations pertaining to-p PROWISION BY RESIDENTS) TQ LANDISORD. OF SEXTY Ty WRITTEN, NOTICE PRIOR TO MOVE-QUT DATE. Failure te prowidle 4 full sieyy-days notiee of intent to vacate shall sesult ig the Resident teing charge a fou the Balance of the setite period an anrount based om fe Gally pis-rate. rental amount, such atioune mat wo. exceed ewer tonthe’ sent, and charped' the aathy fion fee, Such -chirge shall be cunsideted lonidated dann: s-under this lease: agreement. Provision by Resident to Manager in widting of Rod ts Lotwand iL ‘The deposit XE tmay be wpplied hy Landboti. te satigfy all ax parhok Resid lent's obligatie: 28 heneonderand a appileetion. it La lain ‘in. oxcesy ifi he dep: toed that tig eutity: dey be con = - Thre saciuiny agate given by Residentte Landlord pursuant to dis petapapt shall te held ly Landloxd in a poteinterbst bearing acequnt.at the finanelal inatincion iBeated oft the. Fease. YOUR LEASE REQUIRES PAYMENT OF CERTAIN DEPOSITS. THE LANDLORD MAY ‘TRANSFER ADVANCE RENTS 1/0 THE LANDLORD'S ACCOUNT AS THEY ARE DUE AND WITHOUT NOTICE. WHEN YOU MOVE OL; YOUR NEW REGARD] RESS 60 THAT YOUR DEPOSIT. THE LANDLORD THE LANDLORD GAN. cane MUST: M (OST Sve XU NOTICES vae LANDLORD Ht NOTICE, WITHIN 30- DAYS APTER YOU MOVE OUT, OF THE LANDLORD'S TQ IMPOSE.A. CLAIM, AGAINST THE DEPOSIT. IF YOU DO NOT REPLY'TO-THE LANDLORD STATING YOUR. OnE LANDLORD'S: INTTARS: Pages S812 pierce aa nnrnenetcenttnbee rt veo a ontegeem eensROTIGE, THELANDLORD WILL COLLECT'VHE CLAIM AND MUST MAIL ¥OU THE REMAINING DEPOSIT, IF ANY. IF THE LANDLORD PAILS TO TIMELY MAIL YOU NOTICE, THE LANDLORD MUST RETURN THE DEPOSIT BUT MAY LATER FILE A LAWSULY SGAINST YOUFOR DAMAGES. IF YOU PAIL TOTIMELY OBJECT TO.A CLAIM, THE LANDLORD MAY-COLLECT PROM THE DEROSIT, BUT’ MAY LATER FILE A ‘LAWSUIT CLAIMING A. REFUND. YOU SHOULD ATTEMPT TO INFORMALLY RESOLVE: ANY DISPUTE BEFORE FILING A LAWSUIT. GENERALLY, THE.PARTY IN WHOSE. FAVOR A.JUDGMENT I$ RENDERED BE. AWARDED COSTS AND ATTORNEY FEES PAYABLE BY THE LOSING PARYY. iS DISCLOSURE18 BASIC, PLEASE REFER TO. PART IL. OF CHAPTER 83, FLORIDA STATUTES, TO DETERMINE YOUR LEGAL RIGHTS AND GBLIGATIONS, 6. FAILURE TO-COMPLY,. Resident agrass that the Resident shall by seqponsible-to Landlord for the xent accruing hereafter even if Resident fails to acknowledges that Resident consents ter the application mal he subject demised. promises, Rusideint further seeusity deposit by 1 dothe event that ‘Resident dors nor occupy the Apartnnent, to cover Landlord!s costs Ia preparing the Apantment for.xeatal and attonting the Apartment, together with any amd all damages for unpaid sent acesuing Bom the ‘cominiencement daw of this Lease up throngh the dare that Landincd is able to: relet the property, provided, ‘however, that celewing1s on emis aqual te ox more feveritile to Landlord thas. the-ronms and comdidons set ‘essthy inv this Lease: 3. CONDITION OF PREMISES UPON MOVEAN. Propatty ti la like-new condition, Stove, calling, fans, cabinetty, cenial, Air Conditioning, Tile floors, bathrooms, doors, window sdivens, light fixtures, blinds, faases and gates, new 1008, dew paint infetloc and! emterioe, ate in-asds condition acceptedby Lessees. See wall enthiouy form, Upon comiieticotnedt of secupancy, Landiond shall furnisiy light bulbs of prescribed. ox light fixtures, thereafter light bulbs shill he zeplaced by Resident with similar ight bulbs wf the preneriled wattage. The: Resident agrees that prios to Resident daking possession of the subject demised. promises, Rextdent:sball make act inital walk theough of premises with. an,bene eee pee erin agentof Landloxt and at such tine the Resideot and the Landlord shall:so yote.on-4 thoveda teportengamd Broblems on dedictueies ia the Aparement that the Landlord! shall be seasonably requizedt fovzepalt Eh A Q hé han-those oth on. th i h s des cep Abacument as-is. Reas tile eepeive + it a i att stalls ae. reali raha ae fa*gjilired onder, to sender the Apainant Habiwble, ‘The Latdlaid shall wake all. sucli repaits with reasonable promputtss afteruaitl move-in sepoet is executed. 8, LEASE ‘TERMS AND MONTH ‘0 MONTH AGREEMENT. Lanillord may turminate this lease by giving Reyident, wxitten, notice of termination nm Inter than 30 (thirty) days prior to auch tareaination. Resident maj terisihate Lesee with 60: day ys notice ta Landlord at any: thane aftec a 12 Cowelve) Mouth petied, and hereby ageeésfo pay Londlonl an. EE, eqealto the seouxdey deposit if iguiminated befnee said period. If Resident vnimates lease-aEr, alz oelud) mouth patiad, and gives Landloxd, proper notleg; Landlord shall waivesuch. escalation fee.as per item8 2 FR fails to give notite ax xequixed and vacates the 4 ax arthe wid-af tie least yee, Resident will be charged, for the Delauce of the note petiod ft aa amomae haved oi vie daily pro-rata zental. amount, sith anyount abe to exceed ae moe ‘te ona an be idesed A i ie lated damages ‘ ee seteensett cp month ord ii oUt fi mount determined. by iid itd i at aay ve, ass shall hive the sight in 66 the presi, ‘with 12 howr notice ie Restleate at all seasenvable: thoes:is onlay to. shew the | ist . te v nective Residents. Bither exer may terminate this truh-ie-manth seannay: lar gli the ather paity witltneny 2 tentinations sev Jove than thirty 30) days prior 16 the and.of the méi ly xenegl. pediod subjectin all casws: ec Them.8 ffthis lease. . Mallure, of the Residentto. give notive ta vacate the premises 98 a inonth-te-month seddent as sequired undor this hase of thw Plodde Stavates,-willl rewuls ih the Resielese : seemed am amount: equal ” ene month's zent which shall, be considered liquidated dat mages, ALL seontie-to- | BR tage 4nftd bmw * oe eee te onceinonth ees. onder this leuse agreanenc shall be considered additional cent. ‘TE etthes gives notice of termination of tha Leave, aad Reside nt fails::te conspletelye ‘waente the ptomises by che date set fozth in the motiee,. Resident shall, be Hable, in addition ta alll other dansapes: for under the Lease and Flosida lew, dar double the daily seatal Based an a protacion of dig ai ptowlded fora, the: Lease Yor cach day Residenteontinues in pessessiot of the prentises. smnct 9. NO SUBLET. Resident Byay.not sublet the premives in whole or in partin Lease whole ofin part, Subletof premises shall be caitsé for eadly termination of lease assign thie of ‘Resident shall nevertheless remain Tably-io Landlofor by Landlord, rdall teams, conditions aid’ covenants of this evidential Jease agreement, dneluding, but nof limited. to, the payment of tent, 10, WEILIETES. Resident shall fay for. all. atilities! conndction. fees and. monthly costs. Resident shall wes andiiy apree to such utilities p rowided prise 10 tnpwt the cost to Landlord of providing: any af said utilities &} foxany venson during the rem of cement, ‘Under oo citeumstanees shall Wandlord be tesporisible tp Resided or any dutetuption Ya udllt s services; ‘Tusident ix Bee eae eth neter an al othe Inte Resides satme P diorte muvee, Landlord sill. ctoue twa Hi, PROPERTY LOSS. Laactlog shall not te lable For « dammed or Issses ta petson ay erty caused by persons other thas Landlord. Landloxt still nov te liable fie personal injury cor daznay ar of loge: tn Resides’ persoual nae jewalty,.clothing, ete) Fram: vandalisen, Fire, waren, cai, stitas, anole, sxplosions, sonio boats, of other equses wheteu evas,whi eansed by negligent: acts: of Landlord, its a gents OF sccnants oF otherwise: We strongly mesrartond tat Resident sewntes insurance te Ptotect Resident and Resident's proper ty. Landlords propenty iasiinoe Goes aovcower tisk af loug to any of Residents propery, Ako, Eany of Laadiout!y aenployass até tequested tm mander any setvives such aq, handitag of fuesitur, eleaning, ; packages, or any other strvice-aph nodes ak under this Agreement, sich employeseys ghall be- deemed ad a gent val Resident wide:a renee eee om aud nd sendoring of such service, on defifond.La qidliogd smn a teaat al auch sonic RB bilify A. ain} way whe gever ele 12. RIGHT TO ACCESS. Landiord vhall have the sight te enter the Apartment at-any ting without notice for fnspeotlon, iaintersave and pestcontal, In eise of emergency, Landloed reasonable. may enter at a: Hime te protect Life aid prevent damage: to propery. Residene shall ast damge the locks. tw tho Premises withont Landherd's weittés comsent wd provision oF a.wopy of a kay to the Landlord, 13, USB/OCEUPANCY, The Premises shall be ased for sesidentisl pusposes only and shall be oeeupled wuly bi the pesaos mamed-an this lease. Keside ntagrees not to permit aay person gor lease te oceny iPpy the Premises moze thas PHREH (3) days and mighis dutlig the fall team oflisted the on the Jeena, sidedt agrees to: abide by all. municipal and state laws and oxdicunzes 36 as natto oreate a-nuisance and oot to-tonduct or lnitlate anivinies, wloh would, Linesease the rate of iaumariod.on the pi 2 Resident.siell be eéaponsible for the conduct of Resident, gay and all occupants. of the Preiniises, 46 femises. well-as Resident's. agents, invitees antl guests. In ite cele disceotiog, the Landlord naa Ay ceepest any guest ‘ot dayites of the Resident to. tagoe the Premisesif the Landlord believe 8, in its sale opinion, that the guest ot iivitee is. creating a nuisance, kay prior testdint wi aoaupant that leaves the Premises while sf oadng mary to fhe manageme nt company Or owrier or'srhs. fas Leen: evicted from the property is sist permitted to secur, to the Preailses, Ay such presen shalt be wasidered onauthexized aad tha Re sidest that pexm theits presence of aach person, shallbe da, matesial vieladon of the lease agenerent. i. INDEMNIFICATION, Resident agrees wg 2giinburse Landlosd pi tly: for the cost: te Laestdlosd, fos, eety datnage ba the Premines, plants, fences ot dey, includ wethout Tnaitation, fhe east: cof xepaice or suxvlée Guidloding plumbing ieouble) mauseel by Resident's negligence, innentiontal aet¢ and/oe CAL ween arent tte rreatn aurvanenenethgte nt ~ -improper use hy Resident, occupants, guests ox invitees including failure to maintain, the premises as-cblignted. ia patagraph Libelow. Restteat: shall he zespoasible for any such. da t: reanhting fom. wadiws or dos lett open. Resident acknowledges und undurstands that amoking ieide the apartniote om cause. severe dasiages @ the apartment simcture, gppllances, ventilation aad heatap/eodling systein. Resident is seaponsilile for any and all daraages due ita ‘insde: the apartment premises: Payment of all araount: bc ui islon oc the agreements dug and gayableonthie SEVEN £7) days of delivery of seititentt aoties to Resident inden Moskls Sears 83. }. Pallure of the Resident-t0: pay fon damages as fired. will be tonsidered 9 tratetial breach off this lease agrectnent, Furthesrions, Landlosd.teserves the tight te immediately terminate the: lease agreement with @ gal ni i soni permet te, Mole State BS.56(2)0). iS. PREMISES MAINTENANCE. ‘Resid ‘esident agrees to iiake malntenafice dhecks at proper ‘intervals on smoke dotectoss/alarms located tn | Promises end seilacehatterics Hf aceded. Resident agrecs to promptly notify: the Landlord!of ocd ite fi fecha datrages: ia promis ce ia writing: ‘mediately, its i & at owtoa 2 Hon) eveut Res ion fl. td 0; Resi wil heap ensible forall Resident Ss jo the sic condoning unit and the: apartment stuctute and nentents, inchiding damnges as. ceviilt of ax leaker and/os Hoods. Residentstadl nvainmin at own cose toiluss, stalks, showers clean and: undoplf required ataswa, cout In the event hot wader, heatiog, abr conditioning, plumbing or othac equipment shal! aed zepair, and Resident doss sot notify Landlord insulting ofthe necded mpatr or Rer-any ceaseni that ds. beycud the controt of Laxdlont any such unilittes ; ine weduction ot ett off the Landlozd shall aot he. lnkle Hor any damage arising: ovr of Londlort!'s failuee 16 furnish suslraexviees, Resident shall maintain, at own, coat Eixtares, tilets, vinta, fruwets, unclog atlets, unalog tube, 0 Jog sink, window sereéns, in 4 cleau, proper Working, aid santiayy condition. Resident shall not, without the gonsedt of, nd, alten, temodel: ot gtherwlsy change thie 9] pearance wad/ov structure antmont; buildiag or grounds All light fixtures, and. bulb seplace, of the. be.swaltieaiiedby tebant at own cost. wear shollbeeuk and! muaintainad tak by beramt at ows. cosr, 14. DEFAULY BY RESIDENT, If Reudens fails te pay tene of siditional senta when. dae, o:nae pnwcennuneyAbBident Gils. to reimburse l fos dansages, sepaice ox plumbing: sendex.wosts when due-undes thie. soateact, on if Resident or Resident's cvenpants or guests matedully ox co} eatedly vislates this conttact of applicable state and fopal laws, or Jf the Reakdont abandons o uaerendews tha Premtede ‘pater yp: titkal tevmibatlon date of this Tease, without fly ex isg the: eaneéllation provision contained fo. the Hasly "Feomination or liquidated Dronages vides aduen attached tx the letse agreement,. then. Resident shall ba consideredba defaule of this lease ent anid wihore applicable Landlord may terminate Resident's aight of uceupancy by giving. Resident metic ia wilting, Notice may be mail, posting ox personal delivery of” Realdent!'s Premises. Sach wumioation does Aot tlease Resident ftom any oblipation: oe Hability for future wentals, If any anvamnte due Landlord. are: dellngu ent, Landioxd shall aor be obligated i continue utilities, whick ace Furnished and paid for Landlord, Tn:the event that Residene defaults cader the tirnié of this: leise aa provided it thiv patiptaph, the Resident stidl be responsible to the Landlord for damages in avesdtlange whils the ferms.of the Baily Thamsinatlon ox. ‘Ligukdatyd Damages Addendum dm additiontox unpaid Feet, ete < charges, coneespion secebvedl, atromnny's. fe es, antlerLee pald 4 any collection agency, costs.anil, other special gad ener dogitherets. Tn the svent the Resident does nok choose the early tentuidatlon and ated damages optias ja the Addemilian, the Residesdt yeillbe easible for: lost sent aid lato feesdue ta ‘de Landlord until che premises aite.selet, Resident will be i ‘for, any differs; dh xenit Chaiged to new sesidentadd Jory paying day conenssiin offered to the acy resident, ‘The Landlerdy, its Bactessors nad, assigns: axa. hacchy piven the phe to recover sald dawages Gom Resideonby nae af an apptopriate: legal means, These charges are im addidots te all other amonots acceatag wader she lease, ding; ‘wither? lization, NSE cheeks charpes, Sn vuiilley charges and/or eharpes: for the c*nt of repait- and cleaning of the subject demiead! pramiaas Poe wear and team dammes dimes normal wear asd fink sero fees and covey, and collectian expenies. cad goats, 17, PRIS. Tapylicible, ruatdisne shall be vegsgnaible of own pet, on-or abwut the promises ot eoinmunity grounds. Visiting ‘petsiae nat perinltted wider heyrolic*mstances. Wielation.of this clause will be INITIAES Za 7, a age GF 1 eee enna ate“wanse: fe termination of lense by Landlord: “his pet deposit of $5
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Plaintiff alleges as follows in her 2024 SAC and her 2023 cross-complaint, accepted as true for purposes of demurrer and motion to strike (paragraph citations to the SAC unless otherwise noted): Plaintiff purchased the property located at 1400 Circle Drive, San Marino 91108 (the Property) around May 19, 2015. (¶ 17.) In June 2019, Plaintiff registered an LLC, Le Sky Group LLC, and transferred ownership of the Property to the newly-formed LLC. (¶¶ 19, 21.) Plaintiff had loaned defendant Ying Chen a large sum of money in 2017. (¶ 24.) Chen failed to promptly pay her back, and Plaintiff and Chen reached an agreement that Chen would pay the mortgage on the Property until Chen could repay the whole loan to Plaintiff. (¶¶ 24-26.) In December 2020, Chen informed Plaintiff she had repaid the mortgage and suggested to Plaintiff she could help Plaintiff sell the Property if she wanted. (¶ 27, edits to capitalization.) In late 2021, Plaintiff was in China. (¶ 29.) Her real estate agent informed her that the Property had been transferred unbeknownst to [Plaintiff] and Chen was somehow involved with the alleged transfer. (Ibid.) Plaintiff contacted Chen, who informed her the Property had been transferred to a friend and Plaintiff would be paid full market value for it. (Ibid.) The structure on the Property was subsequently torn down, and Plaintiff was never paid. (¶ 30.) As to defendants Maggie Ly Sien (Ly) and Real Estate Elite Corporation (REEC), the moving parties here: according to the SAC, around September and October 2020 defendant Ly, among others, inquired with a representative of Chicago Title Company regarding what documents would be needed in order for Chen to be able to authorize the sale and transfer of Plaintiffs [P]roperty. (¶ 34.) Ly and several of her co-defendants then instigated the creation and filing of a fraudulent Statement of Information as to Le Sky Group LLC, which added Chen as a Manager of the LLC, changed the agent for service of process, and changed the service address. (¶¶ 35-36.) They then created an Operating Agreement for Le Sky Group LLC and forged Plaintiffs signature. (¶ 38.) With their fraudulently-obtained authority over Le Sky Group LLC, the owner of the Property, Ly and her co-defendants then transferred title to the Property without Plaintiffs consent. (¶¶ 39-40.) On February 14, 2024, Ly and REEC demurred to and moved to strike portions of Hes cross-complaint in Ku v. He. Plaintiff has filed no opposition, and Ly and REEC no reply. On April 2, 2024, Ly and REEC demurred to and moved to strike portions from Plaintiffs SAC in He v. Chen. Plaintiff has filed no opposition, and Ly and REEC no reply. The demurrers and motions now come before the Court concurrently in the two related cases. The pleadings and motions are substantially identical, and the Court discusses them all together. Discussion In support of their demurrer, Ly and REEC argue: · The third cause of action for breach of fiduciary duty, only challenged in the demurrer to the SAC, not to the cross-complaint (one assumes erroneously), fails because Plaintiff has not pled Ly or REEC was her agent, and therefore owed her any fiduciary duty. · The fourth cause of action for slander of title fails because o (1) Plaintiff does not allege Ly or REEC recorded a deed, nor did they, nor can anyone infer they did based on Plaintiffs allegations, because a real estate agent/company does not have a duty to record a deed related to a transaction; and o (2) Plaintiff does not allege any false deed was recorded, even if she alleges the underlying transaction was fraudulent; · The fifth cause of action for conversion fails because it only applies to personal property; and · The seventh cause of action fails because Plaintiff has not alleged Defendants received any stolen property. The demurrer is sustained, so the motion to strike is moot. ANALYSIS A. Timeliness; Meeting and Conference A demurrer or motion to strike must be filed within 30 days of being served with a complaint. (Code Civ. Proc., §§ 430.40, 435 (b)(1).) Each must be accompanied by the moving partys declaration attesting to a good-faith effort to meet and confer prior to filing. (Id., §§ 430.41, 435.5.) Counsel confirms via declaration that the parties conferred about a timeline for challenging the related pleadings in each case. The demurrer and motion to strike are timely based on the parties agreement, and the parties met and conferred regarding their dispute. (See Loangkote Decl., ¶¶ 3-6.) B. Legal Standard for Demurrer Where pleadings are defective, a party may raise the defect by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A demurrer for sufficiency tests whether the complaint alleges facts sufficient to constitute a cause of action. (Cal. Code Civ. Proc. § 430.10; Young v. Gannon (2002) 97 Cal.App.4th 209, 220.) When considering a demurrer, a court reads the allegations stated in the challenged pleading liberally and in context, and treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Put differently: for purposes of demurrer, the court treats all facts alleged but only the facts alleged in the complaint as true. (Picton v. Anderson Union High School District (1996) 50 Cal.App.4th 726, 732.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) C. Analysis Third Cause of Action for Breach of Fiduciary Duty Defendants challenge Plaintiffs third cause of action for breach of fiduciary duty in their demurrer to her SAC in He v. Chen, but not their demurrer to her cross-complaint in Ku v. He. The Court assumes this was administrative error; the ruling applies equally to both pleadings. To state a claim for breach of fiduciary duty a plaintiff must plead the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach. (Thomson v. Canyon (2011) 198 Cal.App.4th 594, 604.) Plaintiff does not plead that Ly or REEC owed her a fiduciary duty. A fiduciary relationship is any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 29.) Plaintiff alleges Defendants owed a duty to all foreseeable plaintiffs based on their profession. The Court is not aware of authority stating that real estate professionals owe a fiduciary duty to the public writ large. Plaintiff has not filed an opposition citing any. Plaintiff has not pled facts showing Defendants owed a duty specifically to her, so she has not stated a claim against them for breach of fiduciary duty. Fourth Cause of Action for Slander of Title The elements of a cause of action for slander of title are (1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss. (Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1051.) Defendants argue it is not the responsibility of a real estate agent to record or cause to be recorded title relating to real property ... . (MPA, 9:3-4.) The relevance of this argument is unclear. Whether or not it was Defendants responsibility to record a deed has no bearing on whether they actually did so, or whether the deed was true or false. Defendants also argue Plaintiff did not allege Defendants published anything false. On this point, the Court agrees. The general background facts in the SAC and cross-complaint do not contain a specific allegation that Ly or REEC made any publication. The allegations beneath the cause of action itself state generally that Defendants published a false statement. When the joint liability of multiple defendants is unclear, but a complaint fails to distinguish between them, the complaint may fail for uncertainty. (See Landau v. Salam (1971) 4 Cal.3d 901, 909.) Plaintiffs complaint fails for this reason. Without differentiating the nine (9) defendants and their purported involvement with the alleged false deed, none of the defendants can ascertain what she accuses them of, specifically. Plaintiffs claim for slander of title is fatally uncertain as to Ly and REEC. Fifth Cause of Action for Conversion Conversion is generally described as the wrongful exercise of dominion over the personal property of another. [Citation.] The basic elements of the tort are (1) the plaintiff's ownership or right to possession of personal property; (2) the defendant's disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages. [Citation.] (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 (Fremont).) Plaintiff does not allege Defendants disposed of any of her personal property. Her conversion claim fails. Seventh Cause of Action for Civil Theft To plead a cause of action for civil theft under Penal Code section 496, a plaintiff must allege three elements: (1) property stolen or obtained by theft or fraud; (2) defendants knowledge that it was so obtained; and (3) defendants receipt or possession of the property. (Switzer v. Wood (2019) 35 Cal.App.5th 116, 126.) Plaintiff accuses Ly and REEC, collectively with their co-defendants, of engaging in a scheme to take her property. The SAC implies that Defendants somehow profited from the scheme. But it does not allege Defendants actually received any stolen property. As a result, Plaintiff has not stated a claim. Defendants demurrer is sustained. D. Leave to Amend Where the complaint is defective, [i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his [or her] complaint&However, if the plaintiff's causes of action is [sic] not viable, leave to amend should not be granted if there is no basis for the court to conclude further amendment would cure the defects. (Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 211, internal quotations omitted.) If the demurrer is sustained, plaintiff has the burden of proving the possibility of cure by amendment. (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173, citing Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79). Plaintiff filed no opposition to either demurrer. As a result, she made no effort to demonstrate she can cure her pleading by amendment. She has also amended her complaint twice already, but still fails to state claims against Ly or REEC. It is Plaintiffs burden to show she can amend her complaint to state a claim, and she has not done so. The Court must sustain both demurrers without leave to amend. E. Conclusion Cross-Defendants demurrer to the cross-complaint in Hin Ku v. Zhenya He, et al., 21STCV09634, filed February 14, 2024, is SUSTAINED in its entirety WITHOUT LEAVE to amend. Defendants demurrer to the complaint in Zhenya He v. Ying Chen, et al., 23AHCV00325, filed April 2, 2024, is SUSTAINED in its entirety WITHOUT LEAVE to amend. The motions to strike are denied as moot.
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Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.) On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact. (Scalfv. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. Code Civ. Proc., § 437c(p)(1). When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment. (Avivi, supra, 159 Cal.App.4th at 467; CCP § 437c(c).) Evidentiary Objections The Court rules as follows on Defendant Dibernardos evidentiary objections to the Declaration of Michele Travis: Nos. 1, 3 and 4 (Overruled) and Nos. 2 and 5 (Sustained). The Court rules as follows on Defendant Dibernardos evidentiary objections to the Declaration of William Idleman. Nos. 1 and 2 (Overruled). Judicial Notice Plaintiffs Request for Judicial Notice of Exhibit 1 (Declaration of Establishment of Basis Protective Restrictions, Limitations, Conditions, Covenants and Reservations recorded on August 23, 1973, as Instrument No. 3059 in the Official Records of Los Angeles County) is granted pursuant to Evidence Code, §§ 451, 452, subds. (c) and (g). Parties Arguments Plaintiffs move for summary adjudication on the following: (1) 1st Cause of Action (Breach of the Governing Documents); (2) whether Defendants owed a duty to maintain Unit 403 in accordance with the CC&Rs; (3) whether Defendants owed a duty not to commit a nuisance; and (4) whether Defendants owed a duty of care under the negligence cause of action not to damage Plaintiffs property. Defendant Dibernardo opposes arguing that: (1) Plaintiffs First Cause of Action for Breach of the HOA Governing Documents is essentially a breach of contract claim and (2) triable issues of material facts exist. Analysis The existence of an issue of duty may be a proper subject for a motion for summary adjudication. Courts may summarily adjudicate that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. (CCP § 437c(f)(1); Linden Partners v. Wilshire Linden Assocs. (1998) 62 Cal.App.4th 508, 518. Thus, theoretically, a motion for summary adjudication as to whether Defendant owed a duty under the CC & Rs would be appropriate. Plaintiffs characterize their motion as seeking adjudication as to whether Defendants owed a duty under the CC&Rs. However, the instant motion, as well as Plaintiffs separate statement of facts, it appears that Plaintiffs not only seek the Court to determine whether such a duty exists as a matter of law, but consequently, find that the Defendants breached their alleged duty and are liable for damages as a matter of law. (Plaintiffs Motion for Summary Adjudication, p. 5:7-14, 9:28 10:1-5, 13:22-23.) The instant motion for summary adjudication as the 1st cause of action; Issue of Duty No. 1 - whether Defendants owed a duty to maintain Unit 403 in accordance with the CC&Rs; Issue of Duty No. 2 - whether Defendants owed a duty not to commit a nuisance; and Issue of Duty No. 3 -whether Defendants owed a duty of care under the negligence cause of action not to damage Plaintiffs property are denied to the extent that the motion seeks adjudication of the elements of breach and causation. These are not proper matters for a motion for summary adjudication. (See Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 243 [where damages are an element of a cause of action, such as here in the cause of action for negligence, and the damages amount remains disputed, Plaintiff cannot obtain summary adjudication on the elements pertaining to liability]). Assuming arguendo that the Defendants are bound under the terms of the CR&Rs, which Defendants may not dispute (See DSSUF Nos. 7-9), the Court finds there are triable issues of material facts as to whether Defendants Dibernardo and Vance breach their duty of care under the CC&Rs, whether that breach resulted in the alleged water damage of Unit 303, and/or whether alternative sources within Unit 303s bathroom contributed to the claimed damage. (See DSSUF 2-7, 10; Daly Decl., ¶¶ 4, 6-11; Carpenter Decl., ¶¶ 6-12, 14, 15.)
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