VICTOR JACOBOVITZ, ESQ. (SBN 66297)
LAW OFFICE OF
VICTOR JACOBOVITZ
3055 Wilshire Boulevard, Suite 801
Los Angeles, CA 90010
Phone: (213)
351-1045
Fax: (213) 351-1049
Attorneys for Plaintiff, CHARLES C. PEYTON, JAMES BRITTEN
AND D/B/A BRITTANY FLOOR COVERING
SUPERIOR COURT
OF THE STATE OF CALIFORNIA
COUNTY OF LOS
ANGELES, CENTRAL DISTRICT
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CHARLES C. PEYTON, AN INDIVIDUAL, ) JAMES BRITTEN, AN INDIVIDUAL, ) AND D/B/A BRITTANY FLOOR ) COVERING, ) ) Plaintiffs, ) v. ) ) PAUL ASHLEY KULAK AN INDIVIDUAL, ) KULAK’S WOODSHED, CITY OF LOS ) ANGELES, WENDY GRUEL, JOHN ) ATKINS, ATKINSON CORPORATION ) AND DOES 1 THROUGH 100, ) INCLUSIVE, ) ) Defendants. ) __________________________________ ) |
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CASE NO. COMPLAINT
FOR DAMAGES PRELIMINARY AND PERMANENT INJUNCTION IN RE NUISANCE AND REFUSAL
TO EXERCISE MANDATORY DUTY (UNLIMITED CIVIL CASE) |
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Plaintiffs, Charles C. Peyton, an Individual, James Britten,
an Individual, and d/b/a Brittany Floor Covering, allege as follows:
1. That
Plaintiffs Charles C. Peyton and James Britten at all times herein mentioned
were and are individuals and resident of the County of Los Angeles, State of
California.
2. That
Plaintiff Brittany Floor Covering is a sole proprietorship of Plaintiff James
Britten with place of business located at 5232 Laurel Canyon Blvd., North
Hollywood, California, and is a business entity.
3. Plaintiff
Charles Peyton, as an individual, maintains premises as a place of work as
writer and author located at 5228 Laurel Canyon Blvd., North Hollywood,
California.
4. Defendant Paul
Ashley Kulak is an individual and a resident of the County of
Los Angeles, State of California.
5. Defendant
Kulak’s Woodshed is a business form unknown but believed to be a proprietorship
of defendant Paul Ashley Kulak, and which is located at 5230 Laurel Canyon
Blvd., North Hollywood, CA and according to information and belief authorized
to do business within the State of California.
References to defendants Paul Ashley Kulak and Kulak’s Woodshed are
interchangeably used herein jointly and severely, and are hereinafter referred to in combination as “Kulak”.
6. Defendant
City of Los Angeles is a municipal corporation duly organized under the Laws of
State of California and situated in the County of Los Angeles and which
committed to wrongs alleged herein by and through its agencies and/or divisions
office of City Attorney, Rocky Delgadillo City Attorney, Department of Building
and Safety, Department of Planning Office of Zoning Administration.
7. Defendant
Wendy Gruel is an individual and resident of the County of Los Angeles, State
of California and is a member of the City Council of Defendant City of Los
Angeles who exceeded the authority and discretion granted to her office in
aiding and abetting the wrongs alleged here by her wrongful intersection in
interfering with the City of Los Angeles mandatory duty to abate the noise
nuisance complained herein.
8. Defendant
John Atkins is an individual and a resident of County of Los Angeles, State of
California and is believed to be the principal in Atkinson Corporation, which
jointly and severally with John Atkins were and are the property owners of 5230
Laurel Canyon Blvd., North Hollywood, California and are the landlords of
Kulak.
9. Defendant
Atkinson Corporation is represented as a corporation but the form of which is
unknown, but according to information and belief is a business entity
authorized to do business in the State of California and is located in the
County of Los Angeles. It is the alter
ego of Defendant John Atkins, as its principal, and jointly and severally they
are the owners of the premises 5230 Laurel Canyon Blvd., North Hollywood,
California, which they as landlords rent to Kulak. References to Defendant John Atkins and Atkinson Corporation are
interchangeably used herein jointly and severally and are hereinafter referred
to in combination as “Atkins”.
10. Plaintiff
is not aware of the true names and capacities, whether individual, corporate,
associate or otherwise of the Defendants named herein as DOES 1 through 100,
inclusive, and therefore sues said Defendants by such fictitious names. Plaintiff will amend the Complaint to allege
their true names and capacities when ascertained. Plaintiff is informed and believes and thereon alleges, that
each of the Defendants designated herein as DOES were tortuously in some manner
or otherwise legally responsible insome manner for the occurrences of
happenings herein alleged, and that Plaintiff’s injuries were thereby
proximately caused or contributed by their conduct.
11. Plaintiff
is informed and believes, and thereon, alleges, that all of the Defendants, and
each of them, including the DOE Defendants, at all times herein mentioned were
the agents, employees, and servants of each of the other Defendants, and each
of them, and at all times pertinent hereto, were acting within the course and
scope of said employment and agency.
12. Plaintiff
is informed and believes, and upon such information and belief alleges, that
each of the Defendants, including DOES 1 through 100, inclusive, were, at all
times herein mentioned, acting in concert with, and in conspiracy with, each
and every one of the remaining Defendants.
13. Wherever
appearing in this complaint, each and every reference to Defendants and to any
of them, is intended to be and shall be a reference to all Defendants hereto,
and to each of them, named and unnamed, including all fictitiously named
Defendants, unless said reference is otherwise specifically qualified.
14. During a
period prior to June 9, 2005 Defendants Kulak with the acquiescence and approval of Atkins were operating a
cabaret, nightclub/live musical showcase for musical artists (hereinafter
“nightclub”) for which use nightly at all hours unabated load noise emanated
from the rented premises located at 5230 Laurel Canyon Blvd., constituting an
ever continuing nuisance which was and is imposed on the neighbor Plaintiffs,
Peyton at 5228 Laurel Canyon Blvd., and Britten-Brittany Floor Covering at 5232
Laurel Canyon Blvd. As well as on other
neighbors in proximity to the 5230 premises sufficient to constitute a public
nuisance in addition to the private nuisance.
15. Not only
were no sound abatement corrections made by Kulak and/or Atkins, by proper
sound insulation, but the use of the premises as a nightclub with loud music
was not allowed by Los Angeles City ordinance, codes or zoning regulations, but
continued so operating as a nightclub during off hours so as to not attract the
attention of the authorities and be shut down.
16. Plaintiffs,
in the meanwhile were and are still deprived of the comfortable enjoyment of
their premises particularly Charles Peyton, who as a writer, conducted his
craft during the hours when Defendants Kulak’s nightclub was operating and the
loud music intruded into his premises and interfered with his ability to work.
17. At a
time and date prior to June 9, 2005 Defendant City of Los Angeles interceded by
its Department of Building and Safety, and cited Defendant Kulak to cease and
desist the use of the premises as a nightclub with live music and obey and
accede to the zoning regulations which prohibited the use of Kulak/Atkins
premises in the manner of using them as a live music nightclub.
18. On June
9, 2005 Defendants Kulak applied for and obtained from the South Valley Area
Planning Commission a variance allowing for the use of the premises at 5230
Laurel Canyon Blvd. As a music studio, allowing live musical performances
between the hours of 7:00 p.m. to 10:00 p.m. before no more than 35 patrons,
conditional upon defendant Kulak obtaining off-street parking for 19 cars, and
that Kulak; within 60 days from June 9, 2005 retain an acoustical engineer to
conduct sound abatement by installing sound insulation satisfactory to the Los
Angeles City Department of Building and Safety and confirmed to the Los Angeles
Department of City Planning and Office of Zoning Administration that it was
done.
19. The
variance granted June 9, 2005, and which expired June 9, 2007 was conditioned
upon the above being in place for its effectiveness and until the conditions
were completed, defendants Kulak were not allowed to use the premises as a live
music nightclub.
20. Defendants
Kulak and Atkins did nothing to conform to the requirements of the variance,
and in fact ignored them and instead continued the live loud music performances
at all hours, violating the variance and the applicable codes and regulations,
as alleged, to the point defendant Paul Ashley Kulak was charged and found in
contempt and placed on probation by the Los Angeles Superior Court when said
defendant by court order was ordered to and then did not comply with the
requirements and cease operating until the variance was complied with.
21. The
Superior Court, on at least two occasions, the most recent February 2007 ordered
the Los Angeles City office of City Attorney, Rocky Delgadillo City Attorney,
to enforce the probation of defendant Paul Ashley Kulak, but it refused to
exercise its mandatory duty ordered by the court to do so, and it refused to
interfere with the continued wrongful operations of defendants Kulak and
therefrom the nuisance of load live music performances continued and continues
to annoy Plaintiff and continued to interfer with the quiet enjoyment of the
premises of the Plaintiff.
22. It was
subsequently learned that Defendant Wendy Gruel, in her role as a member of the
Los Angeles City Council, and during the term of the period of the variance to
June 9, 2007 and to the present had improperly and illegally made use of and
exceeded her discretionary powers when she actively encouraged and/or
instructed various departments of the defendant City of Los Angeles, including
but not limited to Department of Building and Safety, Department of City
Planning and Office of Zoning Administration, Office of City Attorney, Rocky
Delgadillo City Attorney to do her bidding when they acknowledged Wendy Gruel’s
intercessions and requests on behalf of Kulak and then obeyed and followed her
requests not to enforce the terms of the variance of Paul Kulak’s probation
wherein the City of Los Angeles, and it’s departments, by accepting Wendy
Gruel’s influence and acceding to her wishes and instructions regarding Kulak,
as alleged, not to interfere, allowed the noise nuisance to continue, at
Plaintiff’s expense whereby The City Of Los Angeles refused to exercise its
mandatory duties in enforcing the terms of the original variance, and
disobeying court orders so that it would not be enforced.
23. Defendant
Wendy Gruel, additionally encouraged and continues to encourage defendants
Kulak to operate the nightclub and its live music performance, despite its
Zoning illegality, and the unabated noise nuisance when following the lapse of
the original variance when she participated in the preparation of a new
variance, allowing for street parking for 20 cars and does not contain a
requirement for installation of sound abating sound insulation. Defendant Wendy Gruel, moreover has
discouraged City of Los Angeles departments not to process the new variance but
rather encouraged them that the new variance be placed in a limbo, unprocessed
state with the idea that a pending variance protects Defendants Kulak from
enforcement of Zoning regulations and allows the nightclub to continue
operations, and therefrom, by ignoring its mandatory duties, The City of Los
Angeles became an active participant in the noise nuisance by its acquiescence
and ratification.
24. On March
2, 2007 following the filing of the claim in this matter with the City of Los
Angeles, The Office of The City Attorney, Rocky Delgadillo denied the claim of
Plaintiffs Charles C. Peyton (Claim No. CO7-2906) as it likewise did on June
11, 2007 as to the filed claim of Plaintiff James Brittin and Brittany Floor
Covering (Claim No. C07-4412).
First Cause of Action
(For Damages as a Result of Nuisance,
Abatement of Nuisance and Preliminary and Permanent
Injunction Against All Defendants)
25. Plaintiffs
herein restate and incorporate by reference, herein, as though fully stated
paragraphs 1 through 24 of the General Allegations.
26. Defendants,
and each of them, as alleged herein above, and as more fully described in the
General Allegations incorporated into this First Cause of Action have
participated in the creation of this noise nuisance be either creating it, in
violation of various codes, variances demands, zoning regulations, as in the
case of Defendants Kulak and Does 1 through 30, who in fact disobeyed court
orders, and were criminally sanctioned for it by probation; or it was
encouraged and condoned by others, as in the case of Defendants City of Los Angeles and Wendy Gruel, to the
point of its ratification, when the City of Los Angeles and its named agencies
and Does 31 through 100 refused to enforce the requirements of the first zoning
variance it had first initiated and issued with conditions imposed before
effective and then refused to enforce the conditions. Court orders were disobeyed relating to refusal in prosecuting
defendant Paul Ashley Kulak for violating probation arising from his contempt
in operating the illegal nightclub after being ordered not to do so. Therefrom City of Los Angeles breached its
mandatory duty pursuant to Government Code Section 815.6.
27. The
aforementioned occupation, use and maintenance of the premises, by defendants,
and each of them, constitute a nuisance within the meaning of Civil Code
Section 3479 in that the operation of the premises as an illegal live music
nightclub, creating unabated excessive and inappropriate noise, loudly
permeating the premises of Plaintiffs at late hours which interfered and/or
interferes with Plaintiff’s free use and enjoyment of their property rights and
is injurious to Plaintiffs’ health and interferes with the comfortable
enjoyment of their property rights, including, but not limited to use of the
property in their occupations and professions, whereby Plaintiffs have been
damaged.
28. As a
further proximate result of the nuisance created by defendants and each of
them, Plaintiffs have been hurt and injured in their health, strength and
activity, sustaining injuries to their nervous systems and persons, all of
which injuries have caused and continue to cause Plaintiffs great mental,
physical and nervous pain and suffering.
As a result of such injuries Plaintiff’s have suffered general damages
in a sum according to proof.
29. As a
further proximate result of the nuisance created by defendants, and each of
them, Plaintiffs incurred and will continue to incur medical and related
expenses in a sum according to proof.
30. As a
further proximate result of the nuisance created by defendants and each of
them, the plaintiffs business opportunities and earning capacities have been
greatly impaired both in the past, present and future in a sum according to
proof.
31. Unless
defendants, Kulak and Atkins, and Does 1 through 30 are restrained by order of
this court, it will be necessary for Plaintiffs to commence many successive
actions against defendants, and each of them, to secure compensation for
damages sustained, thus requiring a multiplicity of suit and Plaintiffs will be
threatened by the excessive noise, from the use of te 5230 Laurel Canyon Blvd.
premises as an illegal nightclub, disturbing the comfortable enjoyment of
Plaintiffs property rights, adjoining at 5232 and 5228 Laurel Canyon Blvd. and
these defendants must be enjoined from continuing their course of conduct in
operating an illegal nightclub.
32. Plaintiffs
have no plan, speedy or adequate remedy at law, and injunctive relief is
expressly authorized by Section 526 and 731 of the Code of Civil Procedure.
33. In
maintaining the nuisance, defendants, and each of them, are acting with full
knowledge of the consequences and damages being caused Plaintiffs, and their
conduct is willful, oppressive and malicious and interferes with their property
rights. Accordingly, Plaintiffs are
entitled to punitive damages against defendants and each of them in a sum
according to proof.
Second Cause of Action
(For Failure to Discharge Mandatory
Duty Against Defendants City of Los Angeles,
Wendy Gruel and Does 51 through100, Inclusive)
34. Plaintiffs
herein restate and incorporate by reference, herein, as though fully stated
paragraphs 1 through 24 of the General Allegations and paragraphs 26 through 33
of the First Cause of Action.
35. At all
times herein mentioned Defendant City of Los Angeles by its agencies and/or
divisions Department of Building and Safety, Department of City Planning and
Office of Zoning Administration, Office of City Attorney, Rocky Delgadillo,
City Attorney, did the things here by its employees, who were at all times
mentioned herein acting within the course and scope of their employment with
defendant City of Los Angeles.
36. Defendant
Wendy Gruel, as a member of the City of Los Angeles City Council and utilizing
her powers therefrom unlawfully influenced, encouraged and/or ordered the above
named Los Angeles City agencies and/or divisions, and by its assigned employees
who were and are charged with a mandatory duty pursuant to Government Code
Section 815.6 not to enforce zoning ordinance, variances which The City of Los
Angeles had enacted. The City of Los
Angeles did not enforce its zoning regulations and the variance cited herein
and therefrom failed its mandatory duty to force Kulaks to cease and desists
creating the nuisance, alleged herein by illegally operating a live music
nightclub, as more fully described in paragraphs 17 through 23 and 26 of this
complaint.
37. By such
failure Defendant City of Los Angeles, its agencies and division to exercise
its mandatory duty, Plaintiffs were without an important remedy, that
defendants Kulak obey city laws, and Plaintiffs were damaged as to losing the
free use and enjoyment of their property rights and suffered not only personal
injuries but also loss of earning capacity as a result of negated business
opportunities and earning capacities as a result of noise caused nuisance, all
of which is more fully described in paragraph 27 through 30 of this complaint.
Wherefore Plaintiffs pray judgment against defendants, and
each of them, as follows:
As Against Defendants Paul Ashley Kulak an individual,
Kulak’s Woodshed, John Atkins, Atkinson Corporation and Does 1 through 30,
inclusive.
1. For a
preliminary and a permanent injunction enjoining the above named defendants,
and each of them, and their agents, servants and employees, and all persons
acting under, in concert with, or for them, from conducting their premises
located at 5230 Laurel Canyon Blvd., North Hollywood as an illegal nightclub,
with live musical performances, and that such activity cease until defendants conform
to the original variance which expired
June 7, 2007, without being conformed to and that they be ordered to
install adequate sound proofing to abate the loud music nuisance entering into
plaintiff’s premises and disturbing their comfortable enjoyment of their
property rights, and that such course of conduct in the illegal operation of a
nightclub be prohibited from continuing and maintained until all aforementioned
conditions are corrected.
As to All Defendants.
2. For general damages
in a sum according to proof;
3. For special damages
in the sum according to proof;
4. As against Defendant
Paul Ashley Kulak, Kulak’s Woodshed, John Atkins, Atkinson Corporation and Does
1 through 30, only for punitive and exemplary damages in a sum according to
proof;
5. For costs of suit
incurred herein; and
6. For such other and
further relief as this court may deem proper.
DATED: August 28,
2007 LAW
OFFICES OF VICTOR JACOBOVITZ
BY: ___________________________________
VICTOR JACOBOVITZ, Attorneys for Plaintiff,
CHARLES C. PEYTON, JAMES BRITTEN AND
D/B/A BRITTANY FLOOR COVERING