MOTION TO SET DATE CERTAIN F/B DFT MARY BETH JOHNSON - TO SET DATE CERTAIN F/B DFT MARY BETH JOHNSON September 09, 2019 (2024)

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Ruling

EILEEN SINGER VS RELATED CALIFORNIA URBAN HOUSING, LLC, ET AL.

Aug 08, 2024 |19SMCV01614

Case Number: 19SMCV01614 Hearing Date: August 8, 2024 Dept: M CASE NAME: Singer v. Related California Urban Housing, et al. CASE NO.: 19SMCV01614 MOTION: Motion for Summary Judgment HEARING DATE: 8/8/2024 Legal Standard A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (CCP, § 437c(a).) The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in¿Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.¿(CCP,¿§ 437c(f)(1).)¿If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court¿(1987) 189 Cal.App.3d 1542, 1544.)¿ [A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to subdivision (t). (CCP,¿§ 437c(t).)¿ To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.¿(CCP, §¿437c(c).)¿The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, [a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment& (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion may not be denied on grounds of credibility, except when¿a material fact is the witnesss¿state of mind and that fact is sought to be established solely by the [witnesss] affirmation thereof. (CCP, § 437c(e).)¿ Once the moving party has met their burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (CCP § 437c(p)(1).) [T]here¿is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.¿(Consumer Cause, Inc. v.¿SmileCare¿(2001) 91 Cal.App.4th 454, 468.)¿ ¿ The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to¿frame¿the outer measure of materiality in a summary judgment proceeding. (Hutton v. Fidelity National Title Co.¿(2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability¿as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings. (Ibid.)¿ EVIDENTIARY ISSUES Sealing On July 26, 2024, Plaintiff filed an opposition and supporting papers. On August 1, 2024, the Court granted Defendants ex parte application to compel Plaintiff to comply with the parties Stipulation and Protective Order dated August 20, 2020. The Court ordered Plaintiff to withdraw the publicly filed opposition briefs and re-submit redacted and unredacted versions with the Court. Plaintiff complied with the ex parte order and lodged new opposition papers conditionally under seal. (See CRC Rule 2.551(b)(3).) On August 2, 2024, Defendants filed a motion to seal the opposition and reply papers. The sealing of trial court records is governed by California Rules of Court, rules 2.550 and 2.551.¿The trial court must make the following express factual findings¿in order to¿seal records: (1) an overriding interest exists that overcomes the right of public access to the record; (2) the overriding interest supports sealing the records; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to achieve the overriding interest.¿(CRC,¿Rule 2.550(d).)¿An order sealing the record must specifically state the facts that support the findings and direct the sealing of only those pages and documents or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal, and all other portions must be included in the public file.¿(CRC,¿rule 2.550(e).) The above findings embody constitutional requirements for a request to seal court records, protecting the First Amendment right of public access to civil trials. (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1217-1218.) Defendants proffer the declaration of counsel, Michael A. Zarconi, to provide a foundation for the sealing factors. The Zarconi declaration provides that [m]any of these documents contain the sensitive confidential information of the Defendants including, but not limited to, sensitive financial information, trade secrets, private investor data, and confidential personnel records. A considerable portion of this sensitive information includes excerpts from balance sheets of various Defendants that is highly sensitive, and not admissible unless or until there is a finding of punitive damages. (Zarconi Decl., ¶ 3.) Further, Defendants note that the parties entered into the Protective Order and that [s]ubstantial quantities of the documents produced by the Defendants in this action through my office were produced under a Confidential designation pursuant to the terms and conditions of the Protective Order. (Id., ¶ 4.) Defendants fail to meet their burden to show all of factors set forth in rule 2.550. The declaration does not identify or provide any foundation for an overriding privacy interest which might overcome the right of public access. Defendants provide no information on whether there is a substantial probability that their unspecified privacy interest would be prejudiced if the record is not sealed. Defendants do not explain how the proposed sealing is narrowly tailored or whether less restrictive means exist to achieve the overriding interest. At best, Defendants cite the fact that the lodged exhibits were produced in discovery under the stipulated Protective Order. Of course, papers may not be filed under seal merely by stipulation of the parties. (CRC Rule 2.551(a); H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 888.) Accordingly, the sealing motion is DENIED. Defendants have the option to permit the documents to remain in the public record or have the lodged documents returned/deleted. (CRC Rule 2.551(b)(6).) Evidentiary Objections As discussed below, Defendants have failed to meet their initial burden of proof. As such, the evidentiary objections against Plaintiffs evidence are immaterial. (CCP § 437c(q).) Analysis Defendants Nicholas Real Estate Investments LLC (NREI), Cardone Real Estate Investments LLC (CREI), the Nicholas Company Inc. (NCI), and the Related Companies of California LLC (RCC) separately move for summary judgment. Each Defendant moves on the same grounds that Plaintiff has no evidence to support her alter ego and/or aiding and abetting theories of liability. Plaintiff opposes each motion. The third amended complaint (TAC) alleges two theories of liability against the moving Defendants, NREI, CREI, NCI and RCC. The TAC alleges that NREI, CREI, NCI and RCC are alter egos of SMUHA, which was the nominal owner/developer of The Waverly. (TAC ¶¶ 26-32.) Defendants allegedly dominated and controlled SMUHA in such pervasive ways as to ignore SMUHAs separateness and to treat it as a mere shell and conduit among other alter ego allegations. (¶ 28.) The TAC also alleges that NREI, CREI, NCI and RCC aided and abetted the other defendants who had direct duties to Plaintiff to disclose known material information. (¶¶ 70-74.) Moving Defendants allegedly had actual knowledge of the alleged fraud, including the true material facts regarding the water intrusion and fenestration problems. (¶ 70.) Moving Defendants also provided substantial assistance in perpetrating the fraud. (¶ 71.) Therefore, to meet their initial burden to show that they are entitled to judgment as a matter of law, Defendants must negate both theories. Reviewing the allegations and the submitted undisputed material facts (UMFs), Defendants met their burden of proof on the alter ego issue, but not on the aiding and abetting issue. Since Defendants have not shown entitlement to judgment as a matter of law, the Court need not analyze the alter ego theory in any further detail.[1] Aiding and Abetting Under an aiding and abetting theory, a defendant must have actual knowledge of the specific primary wrong being committed and gave substantial assistance to the wrongful conduct. (Goonewardene v. ADP, LLC (2016) 5 Cal.App.5th 154, 188.) Liability¿may ... be imposed on one who¿aids¿and¿abets¿the commission of an intentional tort if the person (a) knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person's own conduct, separately considered, constitutes a breach of duty to the third person. [Citation.] (Casey v. U.S. Bank National Association (2005) 127 Cal.App.4th 1138, 1144, quotations omitted.) To sum, a finder of fact may determine a party aided and abetted a tort where: (1) the defendant knew a tort was or would be committed by a primary tortfeasor; (2) the defendant substantially assisted or encouraged the tortfeasor; and (3) the defendants conduct was a substantial factor in causing harm to the plaintiff. (CACI No. 3610.) Defendants do not provide affirmative evidence negating their alleged knowledge or substantial assistance. Instead, Defendants rely on factually devoid discovery responses to shift their burdens of proof. A defendant moving for summary judgment may rely on factually devoid discovery responses to show that one or more elements of their claim cannot be established and thereby shift the burden of proof. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 59.) To do so, a defendant must demonstrate: (1) plaintiffs discovery responses fail to set forth facts and identify evidence supporting the allegations; and (2) the court can reasonably infer from the proffered discovery and responses that plaintiff is unable to produce any additional evidence. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 102-103.) Defendant does not satisfy its burden of proof by producing discovery responses that do not exclude the possibility that Plaintiff may possess or may reasonably obtain evidence sufficient to establish its claim. (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1441-1442; see Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64 [failed to direct discovery at the defendants alleged presence at construction site; the court could thus not infer that there was no evidence on the disputed issue].) For example, [i]f plaintiffs respond to comprehensive interrogatories seeking all known facts with boilerplate answers that restate their allegations, or simply provide laundry lists of people and/or documents, the burden of production will almost certainly be shifted to them once defendants move for summary judgment and properly present plaintiffs factually devoid discovery responses. (Andrews, supra, 138 Cal.App.4th at 107; see Casey v. Perini¿(2012) 206 Cal.App.4th¿1222 [interrogatory answers failed to identify specific asbestos-containing products].) On March 29, 2024, the moving defendants separately propounded certain special interrogatories and requests for production of documents to Plaintiff. (Newman Decls., Exs. C, E; see UMFs 12, 15.) In their respective interrogatories, Defendants requested that Plaintiff provide factual support for the TACs aiding and abetting allegations. (See id., Exs. D, F.) In its special interrogatory no. 17, NREI asked Plaintiff to state all facts supporting her contention that NREI aided and abetted SMUHA, as alleged in paragraph 70a of the TAC. Reviewing the full response, the Court concludes that Plaintiff did not proffer a boilerplate answer that merely restated the allegations of the complaint or merely provided a laundry list of people and documents. In response, Plaintiff fully explained the relationship between SMUHA and the other entities including NREI. This included facts that SMUHAs actions were controlled by the California Development Group and New York Development Group of the Related Companies, and that the principals of the California Group, William Witte and Frank Cardone, controlled SMUHA through intermediary entities such as NREI, CREI, TNC and RCC. Plaintiff also proffered specific facts regarding Wittes and Cardones control of NREI, CREI, TNC and RCC, and facts that suggest they had knowledge of the suppressed environmental and fenestration issues. The same is true for CREI and TNC. (See, e.g., CREIs special interrogatories nos. 15, 36; TNCs no. 21.) To substantially similar questions, Plaintiff provided a substantially identical response. Therefore, the Court cannot infer from Plaintiffs response that she is unable to produce any additional evidence. Notably, RCC did not present a sufficiently comprehensive all facts request seeking information in support of the aiding and abetting allegations. The cited interrogatories request more specific information. For example, special interrogatories nos. 36, 39 and 42 request all facts in support of Plaintiffs allegations that RCC made decisions typically made by a projects owner, aggressively advertised The Waverly as Related Companies project or had a direct financial interest in selling condominium units at the Waverly. Unlike the other moving parties, RCC did not request all facts in support of the aiding and abetting allegations. As such, RCC did not meet its burden. Defendants therefore fail to shift their burden by presenting Plaintiffs factually devoid discovery responses. Accordingly, the four motions for summary judgment are DENIED. [1] Defendants set forth sufficient evidence to meet their prima facie burden as to the alter ego allegations. While not making any findings, the Court determines that Plaintiff failed to meet her responsive burden to show any dispute of material fact concerning any alter ego factors, or that an inequity would result. For example, Plaintiff contends that Defendants co-mingled funds. (UMF 22.) However, Plaintiff only cites the contractual assignment of liabilities and management fees. There is no evidence of actual commingling, but only contractual obligations of payment and risk assignment. The assignment of risks and profits does not, by itself, suggest that the Defendants have comingled funds.

Ruling

DAMBAR GURUNG VS RENU KAYASTHA, ET AL.

Aug 07, 2024 |19STCV29239

Case Number: 19STCV29239 Hearing Date: August 7, 2024 Dept: 56 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT DAMBAR GARUNG, Plaintiff, vs. RENU KAYASTHA, et al. Defendants. CASE NO.: 19STCV29239 ORDER RE: MOTION TO BE RELIEVED AS COUNSEL Date: August 7, 2024 Time: 8:30 a.m. Dept. 56 MOVING PARTY: Sanjay Sabarwal, Esq. (Counsel) RESPONDING PARTY: None The Court has considered the moving papers. No opposing papers were filed BACKGROUND On August 15, 2019, Plaintiff Dambar Garung filed a complaint against Defendants Renu Kayastha, Tilak Rana, Himalayan Hut, LLC and Does 1 through 10, inclusive, alleging claims for: 1) fraud and deceit; 2) violations of Labor Code (LC) section 98.6; 3) violation of LC section 1102.5; 4) violation of LA section 232.5; 5) wrongful termination; 6) failure to pay wages and/or overtime under LC sections 510, 1194 and 1199; 7) failure to reimburse expenses pursuant to LC section 2802; 8) violation of LC section 226(a); 9) waiting time penalties under LC section 203; and 10) Unfair Business Practices under Business & Professions Code Section 17200, et seq.. Although trial in this case, which was set for July 8, 2024, had been taken off-calendar because on the eve of trial the parties informed the Court that they had reached a settlement, it appears that the settlement may not be completed, such that the Court must set another trial date, and will do so at the hearing on this motion. The last date for this case to be brought to trial is February 14, 2025. On June 26, 2024, Counsel filed the instant motion to be relieved as counsel for Defendants. No opposition has been filed. DISCUSSION The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code Civ. Proc. § 284, subd. (2).) The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Forms MC-051 (Notice of Motion and Motion), MC-052 (Declaration), and MC-053 (Proposed Order). (Cal. Rules of Court, rule 3.1362, subds. (a), (c), (e).) In addition, California Rules of Court, rule 3.1362 subsection (d) requires that the notice of motion and motion, declaration, and proposed order be served on the client and all other parties who have appeared in the case by personal service, electronic service, or mail. If the notice is served by mail, it must be accompanied by a declaration stating facts showing that either: (A) The service address is the current residence or business address of the client; or (B) The service address is the last known residence or business address of the client, and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved. (Cal. Rules of Court, rule 3.1362, subd. (1)(A) & (2).) Under Code of Civil Procedure section 1014, A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396(b), moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant. After appearance, a defendant or the defendant's attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. Where a defendant has not appeared, service of notice or papers need not be made upon the defendant. Analysis Although Counsel filed a noticed Motion and Motion to be relieved as counsel, he was required to file but did not file the proper form for making such a motion (MC-051). Counsel also failed to file the proper form of a Declaration in Support of the Motions (MC-052). On July 15, 2024, the Court ordered that Counsel file forms MC-051 and MC-052 as a prerequisite to the granting of the Motion. Counsel failed to do so, and for that reason, the Court denies the Motion. Dated this 7th day of August 2024 Hon. Holly J. Fujie Judge of the Superior Court

Ruling

LU CHEN, AN INDIVIDUAL VS LIVING THE DREAM, A CALIFORNIA CORPORATION, ET AL.

Aug 06, 2024 |24STCV00165

Case Number: 24STCV00165 Hearing Date: August 6, 2024 Dept: 76 Plaintiff landlord alleges that Defendants owe rent under the Lease, caused damage to the property and took personal property from the premises that belonged to Plaintiff. Defendants Living the Dream, New Horizons Development, Inc., Rudy Malka and Shalom Shay Gonzlan demur to the First Amended Complaint and move to strike portions thereof. TENTATIVE RULING Defendants Living the Dream, New Horizons Development, Inc., Rudy Malka and Shalom Shay Gonzlans demurrer to the First Amended Complaint is SUSTAINED with leave to amend as to the first cause of action and without leave to amend as to the fifth cause of action, and OVERRULED as to the second, third and fourth causes of action. The motion to strike is GRANTED with leave to amend as to ¶ 8 re: Joint enterprise allegations; ¶ 58 (12:1-3) that reads: As a direct and proximate result of the conversion of Plaintiffs furnishings, Plaintiff has suffered anxiety, worry, mental and emotional distress in a sum to be determined at time of trial; Breach of Contract Prayer No. 2 (14:26) that reads: Return and accounting for all personal property placed in the care of LTD.; Breach of Contract Prayer No. 3 (15:1-2) that reads: Statutory damages up to $600.00 for LTDs continued malicious possession of the Property. The motion to strike is GRANTED with leave to amend as to humiliation and anxiety only. As to Conversion Prayer No. 2 (15:17) that reads: General damages, including without limitation, for humiliation and anxiety. The motion to strike is DENIED as to ¶ 9 re: alter ego allegations; ¶ 59 (12:4-9) re: punitive damages; and Conversion Prayer No. 3 (15:18) that reads: For exemplary and punitive damages. Plaintiff is given 30 days leave to amend where indicated. ANALYSIS Demurrer Request For Judicial Notice Demurring Receiver requests that the Court take judicial notice of the Unlawful Detainer Complaint filed in 23STCV14605, Lu Chen v. Living the Dream, Inc. is GRANTED per Evid. Code, § 452(d)(court records). Meet and Confer The Declaration of Andrew V. Jablon reflects that Defendants counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41. Discussion Defendants Living the Dream, New Horizons Development, Inc., Rudy Malka and Shalom Shay Gonzlan demur to the First Amended Complaint. 1. Entire Complaint. A. Re: Judicial Estoppel. Defendants argue that in the unlawful detainer complaint filed on June 23, 2023, the operative Lease is a written Residential Lease or Month-to-Month Rental Agreement dated March 5, 2021, whereas the instant action alleges that the operative Lease is dated February 15, 2019. Defendant argues that Plaintiff is judicially estopped from relying on the February 15, 2019 Lease, and not alleging nor attaching the March 5, 2021 Lease. Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] The doctrine's dual goals are to maintain the integrity of the judicial system and to protect parties from opponents' unfair strategies. [Citation.] Application of the doctrine is discretionary. [Citation.] The doctrine applies when (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. [Citations.] (Citations omitted.) (People v. Castillo (2010) 49 Cal.4th 145, 155.) Defendants have not demonstrated how these different leases are totally inconsistent. This argument is not a persuasive ground for demurrer. B. Re: Joint Enterprise and Alter-Ego Allegations. Alter ego allegations may be pled generally and the principal factors for piercing the corporate veilindividual dominated the affairs of the corporation, unity of interest and ownership, corporation is a mere shell, diversion of income, inadequate capitalization, failure to issue stock and observe corporate formalities, adherence to fiction of separate corporate existence would work an injusticemay be alleged in conclusory terms and plaintiff may be given an opportunity to present evidence to support these allegations. (First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910, 914-16.) It is sufficient that refusal to recognize unity of corporation and individual will bring about inequitable results (citation omitted). All that is required is a showing that it would be unjust to persist in recognition of the separate entity of the corporation (Citation omitted). (Claremont Press Publishing Co. v. Barksdale (1960) 187 Cal.App.2d 813, 817.) The alter ego allegations as to LTD and individual Defendants Gozlan and Malka at ¶ 9 are sufficient in this regard. Plaintiff need not present evidentiary support for these allegations at the pleading stage. As for the joint enterprise allegations regarding LTD and New Horizon, the Court agrees that there are insufficient allegations of a joint enterprise: This allegation fails to state facts sufficient to show the necessary requirements for a joint enterprise -- contract, common purpose, and equal right of voice and control. (Coffman v. Kennedy (1977) 74 Cal. App. 3d 28, 32.) As such, there is no basis to impose liability upon New Horizon, and the demurrer to the entire First Amended Complaint is SUSTAINED with leave to amend as to Defendant New Horizon only. 2. First Cause of Action (Breach of Contract). Defendants argue that this cause of action is erroneously based on the superseded 2019 Lease, instead of the 2021 Lease, which Plaintiff alleged was the operative Lease in the unlawful detainer action. Plaintiff admits that the 2021 Lease should have been pled as the operative Lease and asks leave to so plead. On this basis the demurrer to the first cause of action is SUSTAINED with leave to amend. 3. Second Cause of Action (Negligence). Defendants argue that a person may ordinarily not recover in tort for breach of contractual obligations. Defendants further argue that this cause of action is barred by the economic loss rule. Other courts in our jurisdiction have articulated the rule more definitively. For instance, Huang v. Garner, supra, 157 Cal. App. 3d 404 instructs, "[E]conomic loss [is] 'marked by the loss of the benefit of the bargain for the goods purchased, lost profits, and replacement costs for ineffective goods. Physical damage to property and personal injury, however, are not considered to be "economic loss." ' . . ." ( Id. at p. 420, citation omitted, italics added.) In Huang, it was "undisputed . . . that the court properly drew the line between economic and physical damages, determining the cost to repair structural and other alleged defects which had not actually caused physical damage to be economic damage." (Ibid., italics added.) With regard to defects, the Huang plaintiffs presented evidence "that the plans and specifications for the building were defective in several ways, including insufficient fire retardation walls, insufficient shear walls and inadequate structure . . . . Additional evidence indicated that deviation [*618] from the building plans during construction also contributed to faulty construction." (Huang v. Garner, supra, 157 Cal. App. 3d at p. 411.) The plaintiffs sought recovery "for physical damages to their property including damages to the structure caused by deflected and cracked beams and dry rot damages to the balcony area. [They] also sought recovery of economic losses including the cost to repair firewalls, shear walls, fire stops, and other alleged defects in the structure which had not caused actual physical damages at the time of trial." ( Id. at pp. 419-420, italics added.) The Huang court noted, "Apparently it was agreed by the parties that damages such as the cost to repair allegedly insufficient shear walls, insufficient fire retardation, and defects in the structure which did not cause actual physical damage were in fact economic damages." ( Id. at p. 420.) Huang's definition and application of the economic loss rule, albeit in the context of a negligence theory, demonstrates defendant is just plain wrong in contending the physical damage to plaintiffs' real property caused by defective construction of the foundation is only "an injury to the product itself," and thus barred by the economic loss rule of Seely. Huang does not stand alone. As we will discuss, other cases compel the conclusion that under California law, the physical damages to plaintiffs' property are entirely distinct from economic losses and are thus recoverable in strict liability. (Stearman v. Centex Homes (2000) 78 Cal.App.4th 611, 617-618 [bold emphasis added]) (a) Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself. . . . (Civil Code § 1714(a).) 35. At all material times, Defendants owed Landlord a duty to act reasonably and refrain from actions that would foreseeably harm Landlord, damage the Property or personal property left in the care of Defendants at the Property. Moreover, Landlord and Defendants maintained a special relationship through Defendants acceptance of the responsibility to account for and preserve all personal property left in the custody of Defendants at the Property at the time the Lease was executed. 36. Defendants breached this duty of care by negligently and carelessly maintaining the Property that resulted in damage the Property. 37. Defendants breached this duty of care by negligently and carelessly performing repairs to the Property that damaged the Property. 38. Defendants negligently and carelessly failed and refused to properly inventory all the personal property or preserve or store all of the personal property of Landlord left in their care. 39. Defendants negligently and carelessly and without the consent or approval of Landlord, used the personal property of Landlord left in the care of Defendants, for use to furnish other properties that Defendants had leased or subleased for short- or long-term rental to third parties. (1AC, ¶¶ 35 39 [bold emphasis added]) These allegations of damages to real and personal property caused by Defendants negligence fall outside the economic loss rule. Moreover, even if the Lease imposed an obligation upon Defendants not to damage Plaintiffs real and personal property, a contractual obligation may give rise to a negligence cause of action. A contractual obligation may create a legal duty the breach of which will support a tort action. (North American Chemical Co. v. Superior Court (1997) 59 Cal. App. 4th 764, 773-776 [69 Cal. Rptr. 2d 466].) "Contract law exists to enforce the intentions of the parties to an agreement while tort law is designed to vindicate social policy. ( Foley v. Interactive Data Corp. (1988) 47 Cal. 3d 654, 683 [254 Cal. Rptr. 211, 765 P.2d 373].) . . . [T]he same wrongful act may constitute both a breach of contract and an invasion of an interest protected by the law of torts. (3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 139, pp. 203-204.) [P] . . . A contract to perform services gives rise to a duty of care which requires that such services be performed in a competent and reasonable manner. A negligent failure to do so may be [*688] both a breach of contract and a tort. ( Perry v. Robertson (1988) 201 Cal. App. 3d 333, 340 [247 Cal. Rptr. 74].) . . . [P] . . . In general, it has been held that an action based on the negligent performance of contractual duties, although involving elements of both contract and tort, is regarded as a delictual action, since negligence is considered the gravamen of the action. (Eads v. Marks [(1952)] 39 Cal. 2d [807,] 811-812 [249 P.2d 257]; see also Distefano v. Hall (1963) 218 Cal. App. 2d 657, 678 [32 Cal. Rptr. 770].)" (Id., at pp. 774-775.) (Michaelis v. Benavides (1997) 61 Cal.App.4th 681, 687-88.) As such, the second cause of action is sufficiently pled. The demurrer to the second cause of action is OVERRULED. 3. Third Cause of Action (Common Counts). Defendants claim this is a cause of action for money had and received, then argue that rental value is not money had or received. However, the third cause of action is for common counts, and does not mention the specific common count at money had or received. The 1AC alleges at ¶¶ 44 47: 44. Within the past four years, Defendants have become indebted to Plaintiff in the amount of at least $75,816.66 for the rental value of the Property that Defendants have unlawfully possessed, and at least $40,000 for the value of personal property that they have been lost, destroyed, or damaged. 45. Defendants have failed to pay the rental value of the Property and personal property that it has used, controlled, or transferred to third persons. 46. At least $75,816.66 remains unpaid for the rental value of the Property, and at least $40,000.00 for the value of personal property despite Plaintiffs demand, plus prejudgment interest at the maximum legal rate per annum. 47. At least $75,816.66 per month, plus interest, was the reasonable rental value of the Property, and at least $40,000.00 was the reasonable value of the personal property that remains unpaid. (1AC, ¶¶ 44 47.) These allegations give rise to a cause of action for the common count of indebitatus assumpsit, i.e, payment of money for a fully performed contract. It is established that when a contract has been fully performed and nothing remains to be done under it except the payment of money by defendant, plaintiff may declare generally in indebitatus assumpsit. (Citations omitted.) Such count may be joined with one on the contract, and a plaintiff is under no compulsion to elect but may submit his case to the trier of fact for determination upon the facts, and it is the province of the trier of fact to decide which count is supported by the evidence. (Haggerty v. Warner (1953) 115 Cal.App.2d 468, 474-75 [bold emphasis added].) Here, at least as to unpaid rental value, a common count of indebitatus assumpsit would lie in that Plaintiff performed the contract by allowing Defendant to lease the premises, and all that remained was the payment of money for the rental value of the property. The demurrer to the third cause of action is OVERRULED. 4. Fourth Cause of Action (Conversion). Defendants argue that no actual furniture is identified, and Plaintiff, as assignor, does not allege ownership of the personal property. Conversion is the wrongful exercise of dominion over the property of another. (Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 543 [50 Cal. Rptr. 2d 810].) Proof of conversion requires a showing of ownership or right to possession of the property at the time of the conversion, the defendant's conversion by a wrongful act or disposition of property rights, and resulting damages. (Id. at pp. 543544; Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066 [80 Cal. Rptr. 2d 704].) (Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, 1452.) However, Plaintiff alleges that he is at least a co-owner of the real property, and was the owner of all personal property left in the care of Defendants after the execution of the Lease. (1AC, ¶¶ 1, 49.) Plaintiff alleges that his mothers interest in the Lease was assigned to him, but the Lease is distinct from the real property. Plaintiff sufficiently alleges that Defendants removed the personal property worth at least $40,000, thereby establishing dominion over it. (1AC, ¶¶ 49 -55.) The cause of action for conversion is sufficiently pled. The demurrer to the fourth cause of action is OVERRULED. 5. Fifth Cause of Action (Unfair Competition Law). Defendants argue that this cause of action cannot be brought by an assignee. (Amalgamated Transit Union, Loc. 1756, AFL-CIO v. Superior Ct. (2009) 46 Cal.4th 993, 1002.) Defendants also argue that damages may not be recovered under this cause of action. Defendants also argue that, to the extent Plaintiff seeks relief on behalf of all others similar situated, this cause of action is improper absent class certification. Defendants argument regarding standing is persuasive. Plaintiff admits he was assigned the interest in the Lease from his mother. (1AC, ¶ 1.) Plaintiff only alleges ownership in the real property. (Id.) To allow a noninjured assignee of an unfair competition claim to stand in the shoes of the original, injured claimant would confer standing on the assignee in direct violation of the express statutory requirement in the unfair competition law, as amended by the voters' enactment of Proposition 64, that a private action under that law be brought exclusively by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition. (Bus. & Prof. Code, § 17204; see, ante, at p. 1000, fn. 2; Voter Information Guide, Gen. Elec. (Nov. 2, 2004) official title and summary, p. 38 [Proposition 64 permits one to bring unfair competition law action only if that individual was actually injured by & an unfair business practice (italics added)].) Accordingly, we conclude that under the unfair competition law an injured employee's assignment of rights cannot confer standing on an uninjured assignee. (Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1001-02.) Moreover, Plaintiff alleges damages (¶ 66). However, damages are not recoverable under B & P Code, § 17200: The purpose of the UCL [citation] is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services. [Citation.] (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1470 [49 Cal. Rptr. 3d 227].) A UCL action is equitable in nature; damages cannot be recovered. [Citation.] & [U]nder the UCL, [p]revailing plaintiffs are generally limited to injunctive relief and restitution. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144 [131 Cal. Rptr. 2d 29, 63 P.3d 937].) (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1359 [108 Cal. Rptr. 3d 682] (Durell).) (Gray v. Dignity Health (2021) 70 Cal.App.5th 225, 236.) Finally, Plaintiff seeks to recover injunctive relief on behalf of others similarly situated. However: [W]e construe the statement in section 17203, as amended by Proposition 64, that a private party may pursue a representative action under the unfair competition law only if the party complies with Section 382 of the Code of Civil Procedure to mean that such an action must meet the requirements for a class action. (See Fireside Bank v. Superior Court, supra, 40 Cal.4th at p. 1092, fn. 9.) (Arias v. Superior Court (2009) 46 Cal. 4th 969, 980..) Given the fundamental standing issue, coupled with the other deficiencies, the demurrer to the fifth cause of action is SUSTAINED without leave to amend. Motion To Strike Meet and Confer The Declaration of Andrew V. Jablon reflects that Defendants counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 435.5. Discussion Defendants Living the Dream, New Horizons Development, Inc., Rudy Malka and Shalom Shay Gonzlan move to strike the following portions of the 1AC: ¿ ¶ 8 re: Joint enterprise allegations: GRANTED with leave to amend. As discussed above re: the demurrer, the joint enterprise allegations are insufficiently pled. ¿ ¶ 9 re: alter ego allegations: DENIED. As discussed above re: the demurrer, the alter ego allegations are sufficiently pled. ¿ ¶ 58 (12:1-3) that reads: As a direct and proximate result of the conversion of Plaintiffs furnishings, Plaintiff has suffered anxiety, worry, mental and emotional distress in a sum to be determined at time of trial. GRANTED with leave to amend. Although Plaintiff is not suing as an assignee of emotional distress damages, Plaintiff has not alleged an emotional attachment to or reliance upon the personal property: Although we have not been able to locate any California authority other than Schroeder which deals directly with a claim for emotional distress growing out of the conversion of personal property, we note the Restatement Second of Torts section 927, illustration m, page 542, states that where property has been converted: "If the deprivation is the legal cause of harm to the feelings, damages may be allowable for the harm, as when the defendant intentionally deprives the plaintiff of essential household furniture, which humiliates the plaintiff, a result that the defendant should have realized would follow." (See also Fredeen v. Stride (1974) 269 Or. 369 [525 P.2d 166, 168] [veterinarian's conversion of plaintiff's dog supports emotional distress damages].) (Gonzales v. Pers. Storage (1997) 56 Cal.App.4th 464, 476.) ¿ ¶ 59 (12:4-9) that reads: Defendants converted Plaintiffs property with malice, oppression, and fraud, and in conscious disregard for the rights of Plaintiff. At all relevant times, the acts of conversion were made with the knowledge, consent, acquiescence, and ratification of Gozlan and Malka, officers and managers of Defendants. Pursuant to California Civil Code § 3294, Plaintiff is entitled to recover from Defendants exemplary and punitive damages in an amount to be determined at time of trial. DENIED. There are sufficient facts pled to justify an award of punitive damages for conversion, i.e., that Defendants acted with malice, as that term is defined in Civil Code, § 3294(c) to mean: conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. ¿ Breach of Contract Prayer No. 2 (14:26) that reads: Return and accounting for all personal property placed in the care of LTD. GRANTED with leave to amend. The demurrer to the breach of contract cause of action was sustained, so that cause of action is not viable to support this prayer. ¿ Breach of Contract Prayer No. 3 (15:1-2) that reads: Statutory damages up to $600.00 for LTDs continued malicious possession of the Property. GRANTED with leave to amend. ¿ Negligence Prayer No. 3 (15:8) that reads: For the recovery of reasonable attorneys fees under Tort of Another Doctrine. GRANTED without leave to amend. [A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement. (People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th 424, 429.) It is settled that a person who is required through the tort of another to act in protection of his interest by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary attorney's fees incurred. (Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 618, 620 [30 Cal.Rptr. 821, 381 P.2d 645]; Glass v. Gulf Oil Corp. (1970) 12 Cal.App.3d 412, 437-438 [96 Cal.Rptr. 902].) (Moe v. Transamerica Title Ins. Co. (1971) 21 Cal.App.3d 289, 303.) Here, Plaintiff does not allege that he was required to bring or defend an action against a third party due to Defendants negligence. ¿ Conversion Prayer No. 2 (15:17) that reads: General damages, including without limitation, for humiliation and anxiety. GRANTED with leave to amend as to humiliation and anxiety only. (See discussion above.) ¿ Conversion Prayer No. 3 (15:18) that reads: For exemplary and punitive damages. DENIED. (See discussion above.) Plaintiff is given 30 days leave to amend where indicated.

Ruling

Tom Ebert vs Ocean Queen USA, Inc., et al

Aug 09, 2024 |19CV03672

19CV03672EBERT v. OCEAN QUEEN USA, et al. DEFENDANTS’ MOTION TO TAX COSTS The motion to tax is granted in part. I. LEGAL STANDARDS Prevailing parties are entitled to recover certain categories of costs as a matter of right.(CCP §1032; Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 800.) Certain items ofcosts are specifically allowable, while others are specifically prohibited under CCP§1033.5(a)(b). The court has discretion to allow costs which are not mentioned (neither allowednor prohibited) in CCP §1033.5. (CCP §1033.5(c)(4).) However, whether awarded as allowable Page 1 of 6costs under the statute, or in the court’s discretion, all costs are subject to the conditions that theyare (1) actually incurred; (2) necessary to the conduct of the litigation rather than merelyconvenient or beneficial to its preparation; and (3) reasonable in amount. (CCP §1033.5(c)(1)-(3).) If items on their face appear to be proper charges, the verified memorandum of costs isprima facie evidence of their propriety, and the burden is on the party seeking to tax costs toshow that they were not reasonable or necessary. The losing party may contest the costs that aprevailing party seeks. (CCP §1034(a).) The challenging party has the burden of demonstratingthat those costs are unreasonable or unnecessary. (Adams v. Ford Motor Co. (2011) 199Cal.App.4th 1475, 1486; South LLC v. Laconic Limited Partnership (2010) 184 Cal.App.4th1270, 1285.) If the costs are properly objected to, they are put in issue and the burden of proof ison the party claiming them as costs. (Witkin, 7 California Procedure, (5th Ed.) “Judgment”,§146, citing Ladas v. Calif. State Auto Assn. (1993) 19 Cal.App.4th 761.) II. DISCUSSION Plaintiff Tom Ebert’s cost memorandum seeks $16,614 (the cost bill itemized $18,701,but plaintiff has withdrawn a portion of the costs from Item 11). The court awards $16,609 asdescribed in Table 1. Cost/item Amount Requested Defendant’s Amount to Rationale/Basis

Ruling

Aug 06, 2024 |24PSCV00200

Case Number: 24PSCV00200 Hearing Date: August 6, 2024 Dept: G Cross-Defendant Cherry Blossom Childcare & Preschool, LLCs Demurrer to the First Amended Cross-Complaint Respondent: Cross-Complainant Andrew Feil and Oak Street Properties, LLC TENTATIVE RULING Cross-Defendant Cherry Blossom Childcare & Preschool, LLCs Demurrer to the First Amended Cross-Complaint is OVERRULED in its entirety. Cross-Defendant Cherry Blossom Childcare & Preschool, LLC is ordered to file its Answer to the First Amended Cross-Complaint in ten (10) days. BACKGROUND This is an action for breach of contract arising from a loan agreement. In April 2022, Plaintiff Cherry Blossom Childcare & Preschool, LLC (Cherry Blossom) entered into an oral agreement with Defendants Andrew Feil and Oak Street Properties, LLC (Oak Street) in which Cherry Blossom agreed to loan $75,875.00 to Andrew Feil and Oak Street for the purchase of a property in Pennsylvania. Pursuant to the terms of their agreement, Andrew Feil and Oak Street allegedly agreed to make monthly payments of $500 to Cherry Blossom and repay the rest of the loan when they flipped and resold the Pennsylvania property within two years. In January 2024, Cherry Blossom alleges Andrew Feil and Oak Street breached the agreement by failing to make a monthly payment and failing to sell the Pennsylvania property. On January 19, 2024, Cherry Blossom filed a complaint against Andrew Feil, Oak Street, and Does 1-30, alleging the (1) breach of contract, (2) breach of the warranty of good faith and fair dealing, (3) promissory estoppel, and (4) fraud. On March 27, 2024, Andrew Feil and Oak Street filed an answer the Complaint and a cross-complaint against Cherry Blossom, Michelle Feil, and Roes 1-10, alleging causes of action for (1) contribution and indemnity and (2) declaratory relief. On May 28, 2024, Andrew Feil and Oak Street filed a First Amended Cross-Complaint (FACC) against the same defendants alleging the same causes of action. On July 2, 2024, Cherry Blossom and Michelle Feil filed the present demurrer. Prior to filing, their counsel attempted to meet and confer telephonically with Andrew Feil and Oak Streets counsel and was unable to reach a resolution. (Sanchez Siqueiros Decl.) On July 30, 2024, the Court overruled the demurrer as to Michelle Feil and continued the hearing on the demurrer as to Cherry Blossom. A hearing on the present demurrer is set for August 6, 2024, with a case management conference also set for September 18, 2024. ANALYSIS Cherry Blossom demurs to Andrew Feil and Oak Streets second cause of action for declaratory relief. For the following reasons, the court OVERRULES the demurrer in its entirety. Legal Standard Demurrers A party may demur to a complaint on the grounds that it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) 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, supra, at p. 747.) Declaratory Relief To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the partys rights or obligations. (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909, quotation marks and brackets omitted.) The courts do not issue advisory opinions about the rights and duties of the parties under particular agreements, if no actual, justiciable controversy has yet developed. (Otay Land Co. v. Royal Indemnity Co. (2008) 169 Cal.App.4th 556, 563.) Discussion In this case, while the demurrer argues the second cause of action fails because it is duplicative of the first cause of action against Michelle Feil and does not allege fraud against Michelle Feil with requisite specificity, the court notes these arguments are inapplicable to Cherry Blossom. (Demurrer, p. 7:25-28, 8:6-9.) As to Cherry Blossom, the demurrer argues the FACC fails to allege adequate facts to establish the existence of a contract between Cherry Blossom and Michelle Feil. (Demurrer, p. 8:1-5.) But the FACC does so by alleging to the extent an agreement exists, as alleged in [Cherry Blossom]s Complaint, any such agreement was negotiated, entered into, and approved by [Michelle Feil]. (FACC, ¶ 7.) It is well established that cross-complaints may incorporate the allegations of the complaint. (Pine Terrace Apartments, L.P. v. Windscape, LLC (2009) 170 Cal.App.4th 1, 17-18.) Cherry Blossom also argues the FACC fails to allege how Cherry Blossom damaged or could damage Andrew Feil and Oak Street. (Demurrer, p. 8:10-15.) But Cherry Blossom does not provide any authority for imposing a damages requirement in actions for a declaratory judgment. Instead, Andrew Feil and Oak Street need only demonstrate the existence of an actual controversy involving their rights or obligations. Here, one such controversy exists by the very nature of Cherry Blossom seeking to hold them liable for actions that Andrew Feil and Oak Street allege were committed by Michelle Feil. Accordingly, Cherry Blossoms demurrer to this cause of action is OVERRULED. CONCLUSION Based on the foregoing, Cherry Blossoms demurrer to Andrew Feil and Oak Streets FACC is OVERRULED in its entirety. Cross-Defendant Cherry Blossom Childcare & Preschool, LLC is ordered to file its Answer to the First Amended Cross-Complaint in ten (10) days.

Ruling

PRECISION GENERAL CONTRACTORS, INC. VS HUMBERTO ALVAREZ, ET AL.

Aug 08, 2024 |21STCV20055

Case Number: 21STCV20055 Hearing Date: August 8, 2024 Dept: 56 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT PRECISION GENERAL CONTRACTOR, INC., Plaintiff, vs. HUMBERTO ALVAREZ and FABIOLA ALVAREZ, et al., Defendants. AND RELATED CROSS-ACTION. CASE NO.: 21STCV20055 [TENTATIVE] ORDER RE: MOTION FOR AWARD OF ATTORNEYS FEES AND COSTS Date: August 8, 2024 Time: 8:30 a.m. Dept. 56 MOVING PARTY: Defendants and Cross-Complainants HUMBERTO ALVAREZ and FABIOLA ALVAREZ (collectively, Defendants) RESPONDING PARTY: None The Court has considered the moving papers. The motion is unopposed. Any opposition was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).) BACKGROUND On May 26, 2021, Plaintiff Precision General Contractors, Inc. dba Precision Water & Restoration (Plaintiff) filed a complaint (Complaint) against Defendants, alleging a cause of action for breach of contract. The contract was for Plaintiff, who was a general contractor, to provide abatement, mitigation and construction services on Defendants home that had been damaged by water intrusion following heavy winds that damaged the roof of the home. On October 15, 2021, Defendants answered Plaintiffs Complaint, asserting a general denial and various affirmative defenses, and also filed a cross-complaint (Cross-Complaint) against Plaintiff and its owner Ivan Flores, which alleged eleven separate causes of action. A bench trial was conducted on January 12 and 22, 2024. Following trial and submission of closing argument post-trial briefs, the Court issued its Final Statement of Decision on June 3, 2024. On July 10, 2024, judgment was entered in favor of Defendants and against Plaintiff on the Complaint, and on certain causes of action in the Cross-Complaint. Defendants now file this motion requesting an award of attorneys fees in the amount of $67,155 and costs in the amount of $4,840.74 (the Motion). DISCUSSION Standard Pursuant to Code of Civil Procedure section 1033.5(a)(10), a prevailing party may recover attorneys fees when authorized by contract, statute, or law. Civil Code section 1717(a) provides [i]n any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. The court may also consider whether the amount requested is based upon unnecessary or duplicative work. (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.) The basis for the trial court's calculation must be the actual hours counsel has devoted to the case, less those that result from inefficient or duplicative use of time. (Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359, 395.) The law is clear, however, that an award of attorney fees may be based on counsel's declarations, without production of detailed time records. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) Analysis In the Court's Final Statement of Decision, the Court found that Defendants are the prevailing party on both the Complaint and the Cross-Complaint, and that Defendants were entitled to recover reasonable attorneys' fees pursuant to a Motion for Attorneys' Fees to be filed by Defendants. (Final Statement of Decision, ¶¶ 15-16.) The fee request is supported by attorney Lawrence Szabo's declaration, which attaches a Schedule of Time and Charges (Exhibit 3) and a Memorandum of Costs (Exhibit 4). (Declaration of Lawrence Szabo (Szabo Decl.), ¶¶ 4,7; Exhs. 3, 4.) The reasonable hourly rate is that prevailing in the community for similar work. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) The experienced trial judge is the best judge of the value of professional services rendered in [her] court. (Ibid.) Szabo billed Defendants at $400.00 per hour, which the Court finds to be a reasonable hourly rate in the Los Angeles area for similar work. In accordance with the Schedule of Time and Charges, the total attorneys fees requested by Defendants is $63,560. (Szabo Decl., ¶ 22; Exh. 3) In addition, Defendants have incurred charges in the amount of $2,995 for the preparation of this Motion, and declares an anticipated amount of $600 in connection with the review of any opposition, drafting of reply and appearance at the hearing for the Motion. (Id., ¶ 23; Exh. 3.) Pursuant to the Memorandum of Costs, Defendants are also requesting an award of costs incurred in the amount of $4,840.74. (Id., ¶ 24; Exh. 4.) The court has reviewed the Schedule of Time and Charges submitted by Defendants and finds the hours claimed reasonable considering the work performed and the needs of the case. Since there was no opposition, however, the court strikes the request for $600 representing anticipated charges in responding to an opposition. RULING Accordingly, Defendants Motion is GRANTED. The Court awards in favor of Defendant attorneys fees of $66,555 and costs of $4,840.74, for a total amount of $71,395.74. Moving Party is ordered to give notice of this ruling. Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. Dated this 8th day of August 2024 Hon. Holly J. Fujie Judge of the Superior Court

Ruling

Aug 08, 2024 |19STCV14477

Case Number: 19STCV14477 Hearing Date: August 8, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: August 8, 2024 Case Name: Devone, et al. v. Morgan Stanley & Co., LLC, et al. Case No.: 19STCV14477 Matter: (1) Motions for Sanctions (2x) (2) Motion for Attorneys Fees and Costs (3) Motion to Tax Costs Ruling: The Motions for Sanctions are denied. The Motion for Attorneys Fees and Costs is granted in part. The Motion to Tax Costs is granted in part. Defendants to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. This is an action in which Plaintiffs Adam DeVone, Mario Frank Voce, and Julia Voce, as co-trustees of the Voce Family Trust dated 8/17/1970, the Voce Residuary Trust dated 8/17/1970 and the Restated Voce Marital Trust dated 8/17/1970, alleged abuse by a financial advisor relating to a "trading strategy consist[ing] of high-volume, high-risk options transactions which were saddled with massive transactional commissions, costs, and fees." At trial, the Court granted a nonsuit in favor of Defendants Morgan Stanley & Co., LLC and John R. Privitelli. On April 12, 2024, the Court entered a judgment in favor of Defendants. Sanctions The parties now bring dueling Motions for Sanctions per Code Civ. Proc. § 128.7. Defendants contend that Plaintiffs entire case was frivolous. Plaintiffs contend Defendants Motion for Sanctions was brough for an improper purpose and is, therefore, itself sanctionable per CCP § 128.7(h). Plaintiffs also contend that Defendants motion for attorneys fees (see infra), is frivolous. Under Code Civ. Proc. § 128.7, a court may impose sanctions for filing a pleading if the court concludes the pleading was filed for an improper purpose or was indisputably without factual or legal merit. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 168.) A claim is factually frivolous if it is not well grounded in fact and it is legally frivolous if it is not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. (Id. at p. 167.) In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. (Ibid.) A claim is objectively unreasonable if any reasonable attorney would agree that [it] is totally and completely without merit. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650; Guillemin, supra, at p. 168.) While ultimately not successful, the Court cannot find that either this lawsuit or Defendants motions reach the level of frivolity or represent bad faith actions. Thus, the Motions are denied. Attorneys Fees, Costs, Tax Costs Defendants seek attorneys fees in the amount of $2,169,258, costs in the amount of $182,489.82 and expert fees of $177,420.50 or $249,490.37, for a total of $2,529,168.32 or $2,601,238.19. Defendants are entitled to all their expert fees under Cal. Civ. Proc. Code § 128.7, or, in the alternative, their expert fees after May 26, 2023, pursuant to Cal. Civ. Proc. Code § 998, because Plaintiffs rejected Defendants offer of $24,999, and Plaintiffs failed to obtain a more favorable award at trial. The request for attorneys fees is premised on CCP § 128.7, which has been rejected. Next, [i]f the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (Ladas v. Cal. State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) The request for expert fees based on CCP § 128.7 is rejected as explained above. Defendants also seek expert fees after May 26, 2023, per CCP § 998. Plaintiffs argue that such fees should not be awarded because (a) there is no evidence of the 998 offer provided with the memorandum of costs and (b) the expert fees claimed for Scales and Nelson are unexplained and excessive. The former argument is rejected because evidence of the 998 offer was provided with the Opposition to the Motion to Tax Costs. There is nothing in Behr v. Redmond (2011) 193 Cal.App.4th 517 that states this is insufficient. With respect to the latter argument, the Court finds the request for $177,420.50 to be reasonable given the scope and duration of the services provided. Plaintiffs also object to cost items 1, 5, 14 (filing, motion, and service costs), 4 (deposition costs), 11 (court reporter fees), 12 (models and copies of exhibits), 15 (fee for hosting electronic documents), and 16 (otherspecifically, rental equipment and trial technician). The Court reduces the request for costs by $20,501.25 due to improper transcript costs that were not ordered by the Court. This is conceded. There will be a $5,570.13 reduction for duplicative deposition costs. This is conceded. There will be a $3,065.87 reduction for other duplicative costs. This too is conceded. The Court will also make a deduction of $12,024.10 for electronic document hosting, which the Court sees as an overhead cost. In sum, the Motion for Attorneys Fees and Costs is granted in part. The Motion to Tax Costs is granted in part. Specifically, the Court will not award any attorneys fees. Further, all costs will be awarded, except (a) there will only be expert fees from after May 26, 2023 ($177,420.50) and (b) there will be a deduction of $41,161.35. A proposed order is to be provided within 5 days by Defendants. Defendants to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.

Ruling

KARL PERMAN, ET AL. VS YULIA GAYEVSKA, ET AL.

Aug 06, 2024 |20VECV00202

Case Number: 20VECV00202 Hearing Date: August 6, 2024 Dept: 107 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES NORTHWEST DISTRICT Karl Perman individually and as successor- in-interest to Niko Honarbakhsh, Plaintiff, v. Yulia Gayevska et al. Defendants. Case Number Department 20VECV00202 107 COURTS [TENTATIVE] ORDER RE: Motion for Leave to File an Amended Complaint [THE FOLLOWING IS A TENTATIVE RULING IN THE ABOVE CASE]: Plaintiff Karl Perman seeks to amend the Complaint by filing a First Amended Complaint ("FAC") substituting in Karl Perman as successor-in-interest to deceased plaintiff Niko Honarbakhsh pursuant to Code of Civil Procedure section 377.31. The Court GRANTS the unopposed Motion for Leave to file an Amended Complaint. BACKGROUND On February 11, 2020, Plaintiffs Karl Perman, and Niko Honarbakhsh, husband and wife, filed the complaint against Defendants Yulia Gayevska; Balboa Real Estate Holdings, LLC; Balboa Mortgage and Realty, Inc., a California corporation, Oak Tree Realty, a business entity form unknown; and DOES 1 through 25. The complaint alleges (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) promise without intent to perform, (4) negligence, (5) fraud in the inducement, and (6) declaratory relief. On June 3, 2024, Plaintiff Karl Perman filed his motion for leave to amend complaint. As of August 5, 2024, no opposition has been filed. LEGAL STANDARD Leave to amend is permitted under Code of Civil Procedure section 473, subdivision (a) and section 576. The policy favoring amendment and resolving all matters in the same dispute is so strong that it is a rare case in which denial of leave to amend can be justified. . .. Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only where no prejudice is shown to the adverse party . . .. [citation]. A different result is indicated where inexcusable delay and probable prejudice to the opposing party is shown. [Citation]. (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.) A motion for leave to amend a pleading must also comply with the procedural requirements of California Rules of Court, Rule 3.1324, which requires a supporting declaration to set forth explicitly what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for any delay. (See Cal. Rules of Court, rule 3.1324, subds. (a), (b).) DISCUSSION Plaintiff Karl Perman has complied with California Rules of Court, Rule 3.1324. Here, Plaintiff Karl Perman submits the proposed FAC which substitutes in Karl Perman as successor-in-interest to Niko Honarbakhsh. No other changes have been made. Niko Honarbakhsh passed away on February 12, 2024. California Code of Civil Procedure section 377.31 states: "On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent's personal representative or, if none, by the decedent's successor in interest. Further, "The court in which an action is commenced or continued under this article may make any order concerning parties that is appropriate to ensure proper administration of justice in the case ... " Cal. Code Civ. Proc. §377.33. No opposition has been filed as of August 5, 2024. Thus, the Court GRANTS the motion for leave to amend. Dated: August 6, 2024 _______­­­­­­­­­­___________________________ Hon. Eric Harmon Judge of the Superior Court

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MOTION TO SET DATE CERTAIN F/B DFT MARY BETH JOHNSON - TO SET DATE CERTAIN F/B DFT MARY BETH JOHNSON September 09, 2019 (2024)
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