Losonsky v. Davis CA2/7

Filed 9/15/14 Losonsky v. Davis CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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.