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Ruling
HORTENSIA DELGADO VS JOSHUA SEGURA
Aug 23, 2024 |6/18/2022 |24SMCV00828
Case Number: 24SMCV00828 Hearing Date: August 23, 2024 Dept: I The motion to compel responses to the RFP and to deem the RFAs admitted are GRANTED unless responses to the RFA were served prior to the hearing. Verified responses without objection other than privilege will be served within 30 days. The responsive documents and any privilege log will be served at the same time. Plaintiff requests sanctions. Because there is no substantial justification for the failure to respond, and because it appears that an informal attempt to resolve this would have been futile in that responses were not served prior to the hearing, sanctions are GRANTED in the amount of $510 for each motion, for a total of $1020. They are awarded against plaintiff, but not counsel, and are payable within 30 days. On a separate note, the court has seen that plaintiff filed another declaration yesterday regarding this motion. The court has reviewed it and it is STRICKEN. There is no authorization for this declaration, the court granted no leave to file it, and it is utterly irrelevant. Plaintiffs counsel should refrain from filing things like this.
Ruling
ERIC HSING SHOU HUANG VS. CHYAN-WEN JAN
Aug 20, 2024 |VC067069
Case Number: VC067069 Hearing Date: August 20, 2024 Dept: SEC HUANG v. JAN CASE NO.: VC067069 HEARING: August 20, 2024 @ 9:30 a.m. #3 Tentative Ruling Defendants/Cross-Complainants CHYAN-WEN JAN; CHING WEN CHEN; and JAN FRUITS, INC.s Motion for Leave to Depose Plaintiff/Cross-Defendants Ingram Liu, Eric Hsing Shou Huang, and Sophie Chang for More than 7 Hours is GRANTED in part. Defendants/Cross-Complainants to give notice. This action arises out of a business dispute concerning Global Best Produce Inc. (GBP), a large Los Angeles-based produce wholesaler owned by Defendants and Cross-Complainants CHYAN-WEN JAN and CHING WEN CHEN, Plaintiffs and Cross-Defendants ERIC HSING SHOU HUANG and JENNY HUE JU LEE, Cross-Defendants INGRAM LIU and SOPHIE CHANG. GBP is managed by Liu and Chang, who also serve as the companys directors and CEO and CFO, respectively. In 2022, GBPs gross revenues exceeded 54 million dollars. GBPs largest customer is Plaintiff/Cross-Defendant FORMOSA FRESH CONNECTION, INC (FFC). Defendants/Cross-Complainants CHYAN-WEN JAN; CHING WEN CHEN; and JAN FRUITS, INC. (Defendants) argue that they require an additional ten hours to question Plaintiff/CrossDefendant Ingram Liu (Liu), Eric Hsing Shou Huang (Huang), and Sophie Chang (Chang). Defendants argue that the seven hours allowed by Code is not sufficient here due to: the complexity of the Complaint and Cross-Complaint; numerous breaks taken; and significant delays caused by the Mandarin- language translator. CCP § 2025.290 states: Except as provided in subdivision (b), or by any court order&a deposition examination of the witness by all counsel, other than the witness counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circ*mstance impedes or delays the examination. (CCP §2025.290(a).) This makes the seven-hour limit presumptive and applicable only if the court does not order otherwise and the Court has discretion to allow additional time to examine a deponent beyond the seven-hour limit&. (Certainteed Corp. v. Sup. Ct. (2014) 222 Cal.App.4th 1053, 1060.) The Court finds that additional deposition time is warranted. Extensive examination time was consumed because of the use of an interpreter to translate each question and answer and documents from Mandarin to English. Moreover, upon review of the certified transcripts, it appears that there were a number of speaking objections that went beyond a mere statement of the ground for objection which also consumed a good amount of examination time. While Liu, Huang, and Chang is certainly entitled to use a language translator, and Plaintiffs Counsel are entitled to assert appropriate objections, this does not require that the length of time consumed by such matters should be taken into account in measuring the time permitted for examination. CCP §2025.290(a) allows seven hours of total testimony, not seven hours of translation or objections. Further, additional time is mandatory if needed to fairly examine the deponent or if& any other circ*mstance impedes or delays the examination. (CCP §2025.290(a).) The Motion is GRANTED. Defendants have established an entitlement to seven hours of additional oral examination. The Court does not find that Defendants have established that ten additional hours are necessary at this time. Defendants have also demonstrated that sanctions against Plaintiffs and their counsel are warranted. (CCP §2023.010(h) and (i).) Although Plaintiff now states that they have agreed to produce Plaintiffs for a second deposition. The Court has reviewed the record of meet and confer between the parties and finds that Plaintiffs Counsels refusal to engage in meaningful meet and confer discussions, for months, if not years, and insistence on not producing Plaintiffs for deposition beyond seven hours under the circ*mstances outlined above, is unreasonable. However, the Court finds that sanctions should be reduced due to the agreement to produce Plaintiffs prior to the Court ruling on the instant motion. Plaintiffs and their counsel of record are jointly and severally ORDERED to pay Defendants and their counsel of record sanctions in the reduced amount of $3,000.00 by no later than 30 days from the date of the Courts issuance of this Order. This date may be extended per agreement of the parties.
Ruling
RITTERSBACHER SUNSET, LLC VS OSIK MEDIA, LLC
Aug 21, 2024 |22SMCV00828
Case Number: 22SMCV00828 Hearing Date: August 21, 2024 Dept: 205 Superior Court of California County of Los Angeles West District Beverly Hills Courthouse / Department 205 RITTERSBACHER SUNSET LLC, Plaintiff, v. OSIK MEDIA LLC and DOES 1 through 10, inclusive, Defendants. Case No.: 22SMCV00828 Hearing Date: August 21, 2024 [TENTATIVE] ORDER RE: PLAINTIFF/CROSS-DEFENDANT RITTERSBACHER SUNSET, LLCS DEMURRER TO THIRD AMENDED CROSS-COMPLAINT BACKGROUND This action stems from a dispute over a billboard lease. Plaintiff Rittersbacher Sunset LLC (RSL) was the owner of the real property located at 8300 West Sunset Boulevard, West Hollywood California (Property), which was the previous site of the Hollywood Standard Hotel. Plaintiff claims Defendants Osik Media LLC (Osik) and Nicholas Petralia (Petralia, and together with Osik, the Osik Defendants) wrongfully possessed and held over a portion of the Property to operate a billboard. Defendants New Tradition Media, LLC (New Tradition), Bret Richheimer and Evan Richheimer (collectively, the New Tradition Defendants) sell advertising space on the billboard on behalf of the Osik Defendants in exchange for a portion of the revenue generated from operation of the billboard. Plaintiff alleges Defendants engaged in a scheme or conspiracy designed to disrupt and/or cause the termination of Plaintiffs sale of the Property to 8300 Sunset Owner LLC (the New Owner). Plaintiff claims Defendants were attempting to leverage the unlawful occupation of the Property to extort either a financial windfall in exchange for vacating the Property or a lucrative lease for a billboard that Defendants hoped to convert into digital signage in the future. Plaintiff alleges it suffered damages in excess of $15 million, as a result of having to reduce the purchase price to close the sale to the New Owner, to account for the continuing unlawful possession of the Osik Defendants. The operative complaint alleges claims for (1) holdover damages, (2) trespass, (3) intentional interference with prospective economic advantage (relating to the economic relationship with New Owner), (4) intentional interference with prospective economic advantage (relating to the economic relationship with Osik), (5) intentional interference with contractual relations and (6) unlawful business practices. Osik Media LLC countersued, for (1) restitution/unjust enrichment arising out of RSLs alleged unjust retention of benefits Osik conferred on the Property; (2) slander/disparagement of title based on RSLs publication of allegedly false statements that Osik did not own the static billboard that was located on the Property and did not own the City-approved design for a digital billboard that potentially could be located on the Property; and (3) intentional interference with Osiks prospective business advantage arising out of RSLs preventing potential buyers of the Property from entering into arrangements with Osik that would allow the buyers to acquire the income streams that were derived from Osiks static billboard and that were anticipated from the digital billboard.. (Third Amended Cross-Complaint (TAXC) ¶1.) This hearing is on RSLs demurrer to the TAXC. RSL argues that (1) California does not recognize a cause of action for restitution or unjust enrichment; (2) the TAXC fails to state a claim for slander/disparagement of title, as the facts pleaded establish that RSL never maliciously made any untruthful, non-privileged statement that disparaged Osiks property rights in the static signage or the digital billboard, and (3) the TAXC does not state facts sufficient to constitute a cause of action for intentional interference with prospective business advantage because Osik has not alleged, and cannot allege, facts demonstrating the existence of a pre-existing business or economic relationship with any person at the time of RSLs alleged statements. REQUESTS FOR JUDICIAL NOTICE The Court takes judicial notice of the following: 1. The Opinion of the Appellate Division of the Superior Court, County of Los Angeles, 4 dated June 13, 2023, in the matter of 8300 Sunset Owner, LLC v. Osik Media, LLC, LASC Case No. 22SMUD00094 and Appellate Division Case No. 22APLC0033. (Ex. A to RSLs Request for Judicial Notice (RJN).) Judicial notice of the Opinion is proper pursuant to Evid. Code § 452(d), which authorizes the Court to take judicial notice of Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. Pursuant to the holding in Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22, the Court may take judicial notice of the truth of the contents of the Opinion. 2. Court Order, dated October 13, 2022, in the matter of Rittersbacher Sunset, LLC v. Osik Media, LLC, LASC Case No. 22SMUD00094. (Ex. B to RSLs RJN.) Judicial notice of the Court Order is proper pursuant to Evidence Code § 452(d), which authorizes the Court to take judicial notice of court records. 3. Judgment in the matter of Rittersbacher Sunset, LLC v. Osik Media, LLC, LASC Case 19 No. 22SMUD00094. (Ex. C to RSLs RJN.) Judicial notice of the Judgment is proper pursuant to Evid. Code § 452(d), which authorizes the Court to take judicial notice of court records. 4. City of West Hollywood Sunset Boulevard Off-Site Advertising Signage Program 26 Design Excellence Screening Applications, dated November 4, 2019 and August 25, 2020, respectively. (Ex. D to RSLs RJN.) Judicial notice of the Applications is proper pursuant to Evid. Code § 452(c), which authorizes the Court to take judicial notice of Official acts of the legislative, executive, and juridical departments of the United States and any state of the United States. (See Rodas v. Spiegel (2001) 87 Cal.App.4th 2 513, 518 (Official acts include records, reports and orders of administrative agencies.).) Judicial notice is also proper pursuant to Evid. Code § 452(h), which authorizes the Court to take judicial notice of Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Pursuant to the holding in Del E. Webb Corp v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 7 604-605, the Court may also take judicial notice of the truth of the contents of the Application insofar as they consist of statements made by the party whose pleading is being challenged. 5. March 26, 2021 Sunset Boulevard Off-Site Advertising Signage Program Design Excellence Screening Concept Award. (Ex. E to RSLs RJN.) Judicial notice of the Concept Award is proper pursuant to Evid. Code § 452(c), which authorizes the Court to take judicial notice of Official acts of the legislative, executive, and juridical departments of the United States and of any state of the United States. Judicial notice is also proper pursuant to Evid. Code § 452(h), which authorizes the Court to take judicial notice of Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. 6. City of West Hollywood Sunset Specific Plan and Amendments, dated January 25, 2019. (Ex. F to RSLs RJN.) Judicial notice of the Specific Plan is proper pursuant to Evid. Code § 452(b), which authorizes the Court to take judicial notice of Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. Judicial notice is also proper pursuant to Evid. Code § 452(c), which authorizes the Court to take judicial notice of Official acts of the legislative, executive, and juridical departments of the United States and of any state of the United States. Still further, judicial notice is proper pursuant to Evid. Code § 452(h), which authorizes the Court to take judicial notice of Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. 7. July 9, 1959 Ground Lease. (Ex. A to Osiks RJN.) Judicial notice is proper pursuant to Evid. Code § 452(h), which authorizes the Court to take judicial notice of Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. 8. May 18, 2020 Design Excellence Screening Application. (Ex. B to Osiks RJN.) Judicial notice is proper pursuant to Evid. Code § 452(h), which authorizes the Court to take judicial notice of Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. 9. July 11, 2022 Copyright, The Digital Billboard No. VA 2-326-025. (Ex. D to Osiks RJN.) Judicial notice is proper pursuant to Evid. Code § 452(h), which authorizes the Court to take judicial notice of Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. 10. October 13, 2023 Order re Plaintiffs and Defendants cross-motions for partial summary judgment in New Tradition Media LLC v. Rittersbacher Sunset LLC, Case No. 2:22-cv-08670-WLH-AS. (Ex. F to Osiks RJN.) Judicial notice of the Court Order is proper pursuant to Evidence Code § 452(d), which authorizes the Court to take judicial notice of court records. The Court declines to take judicial notice of the following: August 29, 2023 RSLs Third Amended Complaint. (Ex. E to Osiks RJN.) RSLs demurrer to Osiks Third Amended Cross-Complaint. (Ex. A to Osiks 2d RJN.) Judicial notice is unnecessary for documents previously filed in this action. [A]ll that is necessary is to call the courts attention to such papers. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 9:53.1a.) LEGAL STANDARD¿ [A] demurrer tests the legal sufficiency of the allegations in a complaint. (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.).) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) MEET AND CONFER Code Civ. Proc. § 430.41 requires that before the filing of a demurrer the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc. § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).) Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).) RSL submits the Declaration of Eric Marcus, which shows the parties had a telephonic meet and confer on June 17, 2024, which is not five days before the motion was filed on June 21, 2024. Notwithstanding, the Court cannot overrule a demurrer based on an insufficient meet and confer. (Code Civ. Proc. § 430.41(a)(3).) OVERSIZE BRIEF RSLs reply in support of its demurrer exceeds the page limits for a reply brief. The limit is 10 pages, and RSLs reply is 11 pages. The Court has discretion to¿disregard RSLs oversize brief. An¿oversize brief is treated the same as a late-filed brief. (Cal. R. Ct. 3.1113(g).) The Court has discretion to¿disregard late-filed papers and therefore also has discretion to consider or¿disregard oversize briefs. (See¿Cal. R. Ct. 3.1300(d).) The Court exercises its discretion to disregard the reply. Additionally, Osik filed objections to the reply on the ground it purportedly raises new arguments. Given the Court is not considering the reply, it will also decline to consider Osiks objections to the reply and its related Request for Judicial Notice, and RSLs response thereto. ANALYSIS Restitution/Unjust Enrichment RSL argues that Osiks claim for restitution/unjust enrichment fails because there is no such cause of action in California. In fact, this Court has ruled twice previously that unjust enrichment is not a cause of action. In response, Osik argues that California cases have recognized a cause of action for such relief in quasi-contract cases. (Opp. at 6, citing Munoz v. Macmillan (2011) 195 Cal.App.4th 648, 661 and Rutherford Holdings LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231.) However, even accepting Osiks argument, Osik has not alleged there was a quasi- or implied contract between it and RSL. (TAXC ¶¶ 26-32.) Accordingly, the Court sustains the demurrer to Osiks unjust enrichment claim. Slander of Title RSL argues that Osiks claim for slander of title fails because the alleged statements by RSL were true and privileged and because Osik has failed to allege pecuniary harm. The Court agrees that there is no falsity and declines to consider other grounds raised for dismissing the slander of title claim. Slander or disparagement of title occurs when a person, without a privilege to do so, publishes a false statement that disparages title to property and causes the owner thereof some special pecuniary loss or damage. (Sumner Hill Homeowners Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal. App. 4th 999, 1030.) The property may be real or personal, tangible or intangible. (Gudger v. Manton (1943) 21 Cal.2d 537, 541 disapproved in part on other grounds, Albertson v. Raboff (1956) 46 Cal.2d 375.) The elements of slander of title are (1) a publication, (2) without privilege or justification, (3) falsity, and (4) direct pecuniary loss. (Sumner Hill, 205 Cal.App.4th at 1030.) The TAXC fails to allege the falsity of any statement. The only affirmative statement on the part of RSL alleged in the TAXC is that it might be possible to generate income from the operation of a static and/or digital billboard at the Subject Property. (TAXC ¶ 18.) This statement is indisputedly true. Osiks claim is not that RSL made a false statement; rather its claim is that Osik failed to say Osik owned the static billboard structure. This is insufficient. A false or misleading statement (1) must specifically refer to the plaintiffs product or business, and (2) must clearly derogate that product or business. (Hartford Casualty Ins. Co. v. Swift Distribution Inc. (2014) 59 Cal.4th 277, 291-292.) Because the Court concludes Osik has not alleged falsity, it declines to consider other grounds for a demurrer to Osiks claim for slander of title. Intentional Interference Claim RSL argues that Osiks interference claim fails because it has not alleged an existing economic relationship with New Buyer. The Court agrees. The elements of a claim for intentional inference with prospective economic advantage are (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendants knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153.) The tort presupposes that the economic or business relationship existed at the time of the defendants allegedly tortious acts lest liability be imposed for actually and intentionally disrupting a relationship which has yet to arise. (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512, 518.) Here, Osik has failed to allege the existence of any economic relationship between it and any third party, nor any probability that it was engaged in any relationship likely to lead to an economic benefit as pertains to the Subject Property. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 243 (finding no pre-existing economic relationship when possibility of stock purchase had just begun in earnest).) In fact, by the plain language of the TAXC, Osik never held an economic relationship with any potential buyer. Osik is alleging nothing more than a speculative hope that a potentially beneficial relationship would arise based on the outcome of a sale that had not been consummated at the time of the conduct alleged. (See Roy Allan, 2 Cal.5th at 517-518 (a party cannot rely on the outcome of later events to prove interference with an existing economic relationship).) Insofar as the crux of Osiks TAXC is RSLs alleged conduct that resulted in parties choosing not to enter into an economic relationship with Osik, Osiks interference claim necessarily fails. (Korea Supply Co., 29 Cal.4th at p. 1159.) Accordingly, the Court sustains the demurrer to the interference claim. Unclean Hands RSL argues that Osiks claims are barred by unclean hands. Given the Court has dismissed all the claims on other grounds, the Court declines to consider this additional basis for sustaining the demurrer. Conclusion For the foregoing reasons, the Court SUSTAINS RSLs demurrer with 20 days leave to amend. IT IS SO ORDERED. DATED: August 21, 2024 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court
Ruling
LINDA REINBOLD VS LAURA L LAZAR, ET AL.
Aug 22, 2024 |11/28/2022 |24SMCV00995
Case Number: 24SMCV00995 Hearing Date: August 22, 2024 Dept: N TENTATIVE RULING Plaintiff Linda Reinbolds Motion for Preliminary Injunction is DENIED. Plaintiff Linda Reinbold to give notice. REASONING Plaintiff Linda Reinbold (Plaintiff) moves the Court to issue a preliminary injunction enjoining Defendant Philippe B. Craig, Trustee of the Philippe B. Craig, Attorney at Law, 401k Profit Sharing Trust, FBO Philippe B. Craig, and his agents, officers, employees, representative, assigns, and all persons acting in concert or participating with him, including their principal, Phillip B. Craig (Craig), from engaging in, committing, or performing, directly or indirectly, by any means whatsoever, foreclosing and/or proceeding with any and all efforts to engaged in a forced non-judicial sale of Plaintiffs home located at 1333 Ashland Avenue, Santa Monica, California 90405. Legal Standard The function of a preliminary injunction is the preservation of the status quo until a final determination of the merits. (Beehan v. Lido Isle Cmty. Assn (1977) 70 Cal.App.3d 858, 866.) Trial courts traditionally consider and weigh two factors in determining whether to issue a preliminary injunction. They are (1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction. (Dodge, Warren & Peters Ins. Servs., Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) The greater the showing on one, the less must be shown on the other to support an injunction. (Ibid., quoting Butt v. State of California (1992) 4 Cal.4th 668, 678, brackets and ellipses omitted.) The burden of proof is on the plaintiff as the moving party to show all elements necessary to support issuance of a preliminary injunction. (OConnell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.) Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. (See, e.g., Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150 [injunction erroneously granted without verified complaint, affidavits, or declarations to support injunctive relief].) Injunctive relief may be granted based upon a verified complaint only if it contains sufficient evidentiary, as opposed to ultimate, facts. (Code Civ. Proc., § 527, subd. (a).) A plaintiff seeking injunctive relief must also show the absence of an adequate damages remedy at law. (Code Civ. Proc., § 526, subd. (a)(4).) A preliminary injunction may be classified as either a prohibitory injunction, which requires parties to refrain from a particular act, or a mandatory injunction, which requires parties to perform an affirmative act that changes the position of the parties. (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446.) Mandatory preliminary injunctions are rarely granted. (Teachers Insurance & Annuity Association v. Furlotti (1999) 70 Cal.App.4th 1487, 1493.) More specifically, [t]he granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established. (Ibid.) Background Plaintiff alleges that in 2008, she met Defendant Laura L. Lazar aka Laura Gottlieb (Lazar) and developed a relationship with her, and in May 2013, Lazar approached Plaintiff with a request to borrow money against Plaintiffs property to complete renovations of Lazars residence with the intention of repurposing it as a wedding and event venue. (First Am. Compl. ¶¶ 10-16.) Lazar assured Plaintiff that she would be in a position to settle the loan within a year, and she reiterated her commitment to prioritizing the loan repayments, which would be serviced from Lazars monthly trust disbursem*nts. (First Am. Compl. ¶ 17.) Plaintiff agreed to the loan agreement, and Lazar arranged a loan with Craig, with Defendant Michael J. Christl (Christl) to act as a mortgage broker in the transaction. (First Am. Compl. ¶¶ 18-19.) The loan, which amounted to $550,000, was secured by placing a lien against Plaintiffs property located at 1333 Ashland Avenue in Santa Monica. (First Am. Compl. ¶ 19.) The loan application was prepared by Christl and his business Defendant CNC Investments, Incorporated dba California Private Lenders (CNC) and listed Plaintiff and Lazar as co-borrowers with the same address of 3537 Bayberry Lane, Malibu, California 90265, with differing incomes, and Plaintiff alleges that Craig, CNC, and Lazar engaged in subsequent discussions to remove Lazar as the co-borrower to the loan. (First Am. Compl. ¶ 20.) The funds were wired to Lazar, CNC, and Golden Rule Management FBO Martin Grant, and Plaintiff alleges that the funds were not used for Lazars wedding venue business but instead given directly to Grant. (First Am. Compl. ¶ 21.) Plaintiff alleges that neither CNC nor Christl met with or spoke to Plaintiff directly before the loan documents were signed or before Lazar was removed as a co-borrower obligated to the loan. (First Am. Compl. ¶ 22.) The loan was subsequently modified four different times, which increased the loan amount to $1,000,000 and extended the maturity date to December 1, 2023. (First Am. Compl. ¶¶ 24-27.) In July 2023, Lazar promised Plaintiff she would pay off the loan, as she had promised in the past, and Lazar told Plaintiff she needed to execute a Real Estate Power of Attorney so Lazar could extend the loan because Craig wanted to see a connection between Lazar and Plaintiffs property. (First Am. Compl. ¶ 30.) Plaintiff signed the document, and soon thereafter, Lazar told Plaintiff they needed to sell Plaintiffs home. (First Am. Compl. ¶ 31.) Plaintiff alleges that Lazar gained access to Plaintiffs residence to photograph the home and list it for sale, and Lazar claimed she needed to secure an additional loan, which could only be done if a legitimate offer was made. (First Am. Compl. ¶ 33.) Plaintiff learned that Lazar had only been paying off interest on the loan and not paying down the principal, and Plaintiff informed the realtor selling her house that she had not consented to the sale, so the house was taken off market, and Plaintiff executed a Revocation of Power of Attorney, revoking all authority previously granted to Lazar. (First Am. Compl. ¶¶ 33-35.) Plaintiff alleges that she consented to the initial loan of $550,000, but she did not consent to a $1,000,000 loan, and she signed the fourth modification only to extend the loan period because she believed she would lose her home if she did not do so. (First Am. Compl. ¶ 36.) The loan remains outstanding and unpaid, with the liability standing at approximately $1,000,000 in principal, with interest exceeding $52,709.74, and on November 14, 2023, Craig issued a Notice of Default and Election to Sell Under Deed of Trust, thereby initiating foreclosure proceedings. (First Am. Compl. ¶ 37.) Plaintiff alleges claims for fraud, breach of fiduciary duty, financial elder abuse, negligence, unfair business practices, breach of contract, intentional infliction of emotional distress, and quiet title, among others. Analysis The Court first considers the likelihood that Plaintiff will prevail on the merits. In short, Plaintiff contends that a preliminary injunction is warranted because there were indicia of fraud throughout the entire transaction based on Defendants conduct. Plaintiff contends that Lazars fraud, coupled with Christl, CNC, and Craigs actions of engaging in a pattern of unfair predatory real estate practices caused Plaintiff to become a victim of such behavior and to be in jeopardy of losing her home through foreclosure should the injunction not be granted. The Court focuses its analysis on the claims against Craig here, as Plaintiff seeks to enjoin Craigs ability to conduct foreclosure proceedings. While Defendants Christl and CNC have filed an opposition to the motion, the Court need not determine whether Plaintiff has demonstrated a likelihood of success on her claims against them because Plaintiff does not seek to enjoin any conduct by these defendants. As to Plaintiffs negligence claim, she must show that Craig owed her a duty of care. (See McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671 [to state a claim for negligence, Plaintiff must allege the elements of (1) the existence of a legal duty of care, (2) breach of that duty, and (3) proximate cause resulting in an injury].) Plaintiff alleges that Craig had a duty to investigate and inquire about the suspicious loan given the indicia of third-party fraud arising out of payments being made from him to Lazar directly while Lazar was not on the property deeds, and Craig allowed Plaintiff to be the single borrower on the loan despite Plaintiffs income. (First Am. Compl. ¶ 90.) Plaintiffs other claims all require an element of showing a duty owed to Plaintiff by the named Defendants. The Court finds that Plaintiff cannot demonstrate a likelihood of succeeding on her claims. As to Craig, who is alleged to be Plaintiffs commercial lender on the subject loan, Plaintiff has failed to provide any evidence that Craig acted as a broker, attorney, fiduciary, or trustee as to this loan. [A]s a general rule, a [lender] owes no duty of care to a borrower when the institutions involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money. (Nymark v. Heart Federal Savings & Loan Association (1991) 231 Cal.App.3d 1089, 1096.) If the Court were to hold Craig liable as a fiduciary simply based on his conduct as a lender, it would be conceivable that few lenders would provide loans, fearing liability simply for lending an individual money. While Craig could be liable if he had done more than provide funds to Plaintiff, Plaintiff has failed to show any such conduct. Further, there is no indication that Craig had any notice of issues with the loan or with Lazar when Craig acquired an interest in the property. Rather, Plaintiff signed documents affirming the validity of the loan, and Craig had no duty to explain the loan to Plaintiff or determine her ability to repay it. It follows that Plaintiff cannot show that Craig engaged in unfair business practices because Plaintiff must establish Craig was engaged in an unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and certain specific acts (Bus. & Prof. Code, § 17200), and all that has been shown is that Craig was a lender on the loan. Further, Plaintiffs claims for declaratory relief, injunctive relief, and quiet title rely on the same allegations, and there is the requirement that Plaintiff has tendered the amount of the secured indebtedness on the property, which extends to all causes of action which are implicitly integrated with the allegedly wrongful sale. (Arnolds Management Co. v. Eischen (1984) 158 Cal.App.3d 575, 579.) A full tender must be made to set aside a foreclosure sale, and a plaintiff attacking a foreclosure sale is required to allege tender of the full amount owed. (See Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 526.) This requirement exists so plaintiffs may not recoup the property while evading their lawful debt on the property. (Ibid.) Plaintiff has provided no evidence that she has tendered the amount due to Craig or any other defendant. Further, Plaintiff has alleged she was involved in the loan process and subsequent modifications, even if certain documents were executed as a result of Lazars fraud, such that the trier of fact could hold Plaintiff liable for the representations she made in those documents. Finally, it is clear that Craig will suffer with the issuance of a preliminary injunction, as Plaintiff remains in the property despite her default on the loan, and Craig will continue to lose the value of his investment in providing a loan to Plaintiff if he is unable to foreclose on the property while also being unable to collect on the loan. Accordingly, Plaintiff Linda Reinbolds Motion for Preliminary Injunction is DENIED. Evidentiary Objections Defendants Christl and CNC object to certain statements within the declarations of Jake Babco*ck, Linda Reinbold, and Beth Chrisman, and the entire declaration of Caroline Knab. Objection Nos. 1, 2, 4, 5, and 7 to 10 are SUSTAINED. Objection Nos. 3, 6, and 11 to 24 are OVERRULED. Plaintiff objects to certain statements within the declaration of Defendant Michael Christl, Andrew S. Louis, Gabrielle Gonzalez, Clay Wilkinson, and Defendant Phillippe B. Craig. Objection Nos. 1 to 20, 22, 31, 33, 34, 37 to 39, 42, 44, 46, and 58 are OVERRULED. Objection Nos. 21, 23 to 30, 32, 35, 36, 40, 41, 43, 45, and 47 are SUSTAINED as to the declarants legal conclusions but otherwise OVERRULED.
Ruling
ELIZABETH QUINN ET AL VS. MARY R. COULTON ET AL
Aug 20, 2024 |CGC23606844
Real Property/Housing Court Law and Motion Calendar for August 20, 2024 line 2. DEFENDANT NEIL STRAGHALIS AN INDIVIDUAL, ELYSA STEIN MOTION FOR JUDGMENT ON THE PLEADINGS is OFF CALENDAR. Motion for Determination of Good Faith Settlement pending. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.
Ruling
Nicole Martinez vs Guy Maxwell
Aug 20, 2024 |24CV-01096
24CV-01096 Nicole Martinez, et al. v. Guy Maxwell, et al.Motion to Strike Portions of Plaintiff’s Complaint Relating to Punitive DamagesThe Motion to Strike Portions of Plaintiff’s Complaint Relating to Punitive Damages isGRANTED WITH LEAVE TO AMEND to allege facts establishing malice, oppression orfraud.
Ruling
WEINGARTEN NOSTAT, LLC, A TEXAS LIMITED LIABILITY COMPANY VS ANGELA SONG
Aug 21, 2024 |24STCV09435
Case Number: 24STCV09435 Hearing Date: August 21, 2024 Dept: 78 Superior Court of California County of Los Angeles Department 78 ¿ WEINGARTEN NOSTAT, LLC, Plaintiff(s), vs. ANGELA SONG, et al., Defendant(s). Case No.: 24STCV09435 (R/T 23STCV21794) Hearing Date: August 21, 2024 [TENTATIVE] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION I. BACKGROUND On April 15, 2024, plaintiff Weingarten Nostat, LLC (Plaintiff) filed this unlawful detainer action against defendants Angela Song (Defendant) and Does 1 to 10 for possession of commercial property located at 8000 Sunset Blvd., Suite A120, Los Angeles, CA, 90046 (the Subject Property) pursuant to a written lease agreement (Lease). On May 3, 2024, Defendant filed her Answer to the complaint. On July 26, 2024, Plaintiff filed the instant motion summary judgment on its commercial unlawful detainer action, or in the alternative, for summary adjudication on Defendants affirmative defenses. On August 9, 2024, Defendant filed an opposition to the motion. No reply has been filed to date. II. LEGAL STANDARD In an unlawful detainer proceeding, a "motion for summary judgment may be made at any time after the answer is filed upon giving five-days notice. Summary judgment shall be granted or denied on the same basis as a motion under Section 437c."¿(Code Civ. Proc., § 1170.7.) The purpose of a motion for 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 (Aguilar); Code Civ. Proc., § 437c (c).)¿ A plaintiff reaches its burden on summary judgment by showing prima facie evidence for each element of its cause of action.¿ Code Civ. Proc, § 437c (p); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519 (Scalf).¿ The burden will then shift to the defendant to show the existence of a triable issue of material fact for at least one element of the cause of action at issue.¿(Ibid.) Courts liberally construe the evidence in support of the party opposing summary judgment or summary adjudication and resolve doubts concerning the evidence in favor of that party.¿(Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)¿However, if all inferences reasonably deducible from the submitted evidence are uncontradicted by other inferences and there is no triable issue as to any material fact, the moving party is entitled to summary adjudication as a matter of law.¿(Code Civ. Proc., § 437c (c); Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) III. EVIDENTIARY OBJECTIONS Defendant submits objections to the declaration of Matthew Johnson. Defendants objections to paragraphs 2, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25 of the declaration are OVERRULED. IV. DISCUSSION Unlawful Detainer Plaintiff moves for summary judgment on its commercial unlawful detainer action against Defendant due to non-payment of rent pursuant to a written lease agreement. Plaintiff argues there is no triable issue of material fact that Defendant owes Plaintiff past due rent, that Defendant continues to occupy the premises, and that Plaintiff served a three-day notice to pay rent or quit and surrender the premises. The basic elements of unlawful detainer for nonpayment of rent contained in Code of Civil Procedure section 1161, subdivision (2), are (1) the tenant is in possession of the premises; (2) that possession is without permission; (3) the tenant is in default for nonpayment of rent; (4) the tenant has been properly served with a written three-day notice; and (5) the default continues after the three-day notice period has elapsed. (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 16 (internal citations omitted).) The failure of the tenant to pay rent does not ipso facto work a forfeiture of the leasehold; it merely gives the lessor the right to terminate the lease in the manner provided by law...[.] The essential element, therefore, is the notice and whether or not it comports with the fundamental requirements of the law. (Ibid.)¿ Plaintiff avers that Kimco Realty Corporation (Kimco) is its property manager and that it provides property management services for the Subject Property. Matthew Johnson (Johnson), a Senior Regional Director of Property Management at Kimco, declares that Plaintiff is the owner of the Subject Property, which is a commercial shopping center. (Decl. Johnson ¶¶1-2.) Johnsons responsibilities as property manager include administration of the written lease between Plaintiff as landlord and Defendant as the tenant, in which Defendant operates a restaurant on the premises. (Id. ¶ 3.) Johnson has reviewed Plaintiffs books and records pertaining to Defendants tenancy, including the tenant ledger reflecting all amounts due by Defendant to Plaintiff pursuant to the lease, and whether the amounts had been paid. (Id. ¶ 4.) On September 4, 2020, Weingarten Nostat, Inc., a predecessor to Plaintiff Weingarten Nostat, LLC, entered into a 10-year term Lease with George Jamil Shalhoub and Suhad Shalhoub (Prior Tenants) for the leased premises of 800 Sunset Blvd., Suite A120, Los Angeles, CA 90046 (the Premises), to expire on February 1, 2031. (Id.¶¶5, 10; Exh. 1.) On October 19, 2020, Weingarten Nostat, Inc. and the Prior Tenants executed a First Amendment to the Lease. (Id ¶ 6, Exh. 2.) On December 30, 2022, the Prior Tenants assigned the Lease, as amended, to Defendant pursuant to the Assignment, Assumption and Second Amendment of Lease (the Assignment). (Id. ¶ 7; Exh. 3.) Plaintiff has been in possession of the Premises since the time of the Assignment. (Id. ¶ 8.) In March 2023, Weingarten Nostat, Inc. converted to a limited liability company. (Id. ¶ 9; Exhs. 4-5.) Pursuant to the Lease, Defendant was required to pay Minimum Rent of $11,971.78 per month for Lease Year 3 (i.e., February 2023 through January 2024), and $12,330.03 per month for Lease Year 4 (i.e., February 2024 through January 2025). (Id. ¶ 11.) Additionally, Defendant was required to pay Additional Charges consisting of a Common Area Payment ($2,980.22 per month); an Insurance Payment ($244.25 per month); and a Tax Payment ($1,662.58 per month). (Id. ¶ 12.) Pursuant to Article IV, Section 4.03 of the Lease, the amounts owed under the Lease, including Minimum Rent, Additional Charges and any other amounts owed, are defined as Rent. (Id. ¶ 13.) Defendant has not paid any Rent with available funds for any month from September 2023 to the present. (Id. ¶ 14.) Defendants checks to Plaintiff for Rent for the months of September, October, November and December 2023 were returned for non-sufficient funds. (Ibid.) On November 22, 2024, Plaintiff served a Notice of Default on Defendant requesting amounts due under the Lease. (Id. ¶ 19; Exh. 6.) On February 20, 2024, Plaintiff served a second Notice of Default on Defendant. (Id. ¶ 20; Exh. 7.) After having not paid Rent following two Notices of Default, Plaintiffs counsel served Defendant a Three Day Notice to Pay Notice to Pay Rent or Quit and Surrender Possession of Premises. (Id. ¶ 21; Peterson Decl. ¶¶ 2-3; Exhs. 1-4.) The ledger reflects an outstanding Rent balance of $168,501.19 from September 2023 to July 2024. (Johnson Decl. ¶¶ 17-18.) Plaintiff has met its prima facie burden that Defendant is in possession of the Premises, that she is in default for nonpayment of rent, that she has been properly served with a written three-day notice, and that she has continued to remain in default after the three-day notice period elapsed. (Code Civ. Proc., § 1166.) Further, the Court finds that Plaintiff has met its burden proving the amount of rent in default. (Code Civ. Proc., §§ 1166, 1161 (2).) The burden therefore shifts to Defendant to raise a triable issue of material fact as to Plaintiffs evidence supporting each element of the action. In opposition, Defendant first argues that Plaintiff has not met its prima facie burden because Johnsons declaration and the evidence provided lacks foundation. Defendants objections on these grounds were overruled, as provided above. Defendants second argument is that Plaintiff has not met its burden that the three-day notice was reasonably estimated within the range of 20% accuracy. Here, the Three Day Notice stated that Plaintiff owed $82,665.93 in Rent to Plaintiff as of March 7, 2024, which Plaintiff asserts is within 20% of the $82,411.29 that was due between September 2023 through February 2024. (Peterson Decl., Exh. 1.) It is therefore Defendants burden to rebut the presumption that the amount due was not reasonably estimated. (DT-Winchester v. Nilsson (1994) 27 Cal. App. 4th 516, 531.) "[T]here is a presumption affecting the burden of proof that the amount of rent claimed or tendered is reasonably estimated if, in relation to the amount determined to be due upon the trial or other judicial determination of that issue, the amount claimed or tendered was no more than 20 percent more or less than the amount determined to be due. (Levitz Furniture Co. v. Wingtip Commc'ns, Inc. (2001) 86 Cal. App. 4th 1035, 1039.) Defendant has not rebutted the presumption that the amount was reasonably estimated. Aside from attacking Johnsons foundation and making general arguments as to why Defendant was entitled to not pay rent, Defendant otherwise does not dispute the amount of Rent in default as calculated by Plaintiff. Affirmative Defenses Plaintiff argues Defendants affirmative defenses of 1) breach of implied duty of quiet enjoyment, (2) defective notice to quit for an inaccurate amount stated in the three-day notice or setoff, and (3) retaliatory eviction, lack legal and evidentiary support, and that there are no triable issues of fact as to the defenses. Unlawful detainer actions are summary in nature and ordinarily only address the issue of immediate possession of property. (Borsuk v. Appellate Division of Superior Court (2015) 242 Cal.App.4th 607, 609, fn. 1; Culver Center Partners East # 1, L.P. v. Baja Fresh Westlake Village, Inc. (2010) 185 Cal.App.4th 744, 749.) Thus, in unlawful detainer actions, tenants generally may assert legal or equitable defenses that directly relate to the issue of possession and which, if established, would result in the tenant's retention of the premises. (Drouet v. Superior Court (2003) 31 Cal.4th 583, 587.) Cross-complaints, counter-claims, and affirmative defenses generally are not permitted, unless success on the claim would preclude removal of the tenant. (Vella v. Hudgins (1977) 20 Cal.3d 251, 255; Green v. Superior Court of San Francisco (1974) 10 Cal.3d 616, 634, fn. 19.) Thus purpose of the unlawful detainer statutes is to provide the landlord with a summary, expeditious way of getting back his property when a tenant fails to pay the rent or refuses to vacate the premises at the end of his tenancy. If a defendant were allowed to assert affirmative defenses or cross-claims which were irrelevant to the right of immediate possession, the summary character of the proceedings would be lost. A defense which arises out of the subject matter of the original suit, and, thus, is permitted in the usual case, is normally excluded in an unlawful detainer if the defense is extrinsic to the issue of possession [Citation]. This does not mean the defendant may not present any defense; rather, he may only assert those defenses which, if proven, would either preserve his possession as a tenant or preclude the landlord from recovering possession [Citation]. (Nork v. Pacific Coast Medical Enterprises, Inc. (1977) 73 Cal.App.3d 410, 413.) Breach of Implied Covenant of Quiet Enjoyment An assigned lease carries with it, even in absence of special covenant for quiet enjoyment, an implied covenant binding upon lessors during the continuation of the term, and this covenant means that a tenant shall not be wrongfully disturbed in his possession by the lessor. (Pierce v. Nash (1954) 126 Cal. App. 2d 606, 612.) However, the covenant of quiet enjoyment can be modified or waived by the tenant in a commercial lease setting. (Lee v. Placer Title Co. (1994) 28 Cal. App. 4th 503, 513.) Plaintiff argues this affirmative defense cannot be maintained, because it is only available if the defendant is no longer in possession of the property and that the defense is not available under the Lease. Plaintiff asserts the Lease provides that Defendant may quietly enjoy the Premises provided she pay Rent without abatement or offset. Indeed, the covenant of quiet enjoyment is not broken until there has been an actual or constructive eviction [Citations]; an actual eviction takes place when the tenant is physically dispossessed of the property; a constructive eviction occurs when the act of molestation merely affects the beneficial use of the property, causing the tenant to vacate the premises. (Petroleum Collections Inc. v. Swords (1975) 48 Cal. App. 3d 841, 847.) Defendant does not dispute that she remains in possession of the Premises. Rather, Defendant argues that vacating the Premises is not required, in reliance upon Guntert v. City of Stockton (1975) 55 Cal.App.3d 131. In Guntert, plaintiff Guntert did not surrender possession of the leased premises, and instead sued for damages for breach of quiet enjoyment. The analysis and subsequent case law cited in Guntert pertain to upholding a tenants claim for recovery of damages for breach of the covenant of quiet possession against the landlord. Here, at issue is Plaintiffs unlawful detainer action against Defendant and related affirmative defenses that may affect Plaintiffs right to immediate possession of the property, not Defendants right to stand upon the Lease and separately sue Plaintiff for damages. Whether Defendant separately may obtain money damages against Plaintiff for wrongful eviction or for breach of contract, as in Guntert, is not the issue at hand. Additionally, Defendant does not address Plaintiffs contention that Section 3.04 of the Lease provides that Landlord covenants that Tenant, upon paying All Minimum Rent and other charges due Under this Lease&.shall peacefully and quietly have, hold, and enjoy the Leased Premises and the appurtenances thereto throughout the Lease Term without hindrance, ejection or molestation by Landlord. (Johnson Decl.; Exh. 1.) Defendant argues generally that there were false fire alarms and interruptions that caused the gas to turn off, which negatively impacted Defendants fried chicken business. In support thereof, Defendant relies on a declaration entitled Declaration of Angela Song. The Court notes that although it is titled Declaration of Angela Song and signed by Defendant, the declaration states that Kevin Song is the declarant. (Decl. Song, p.2, line 1.) There is no explanation as to who Kevin Song is, and his relation to this action. The Court will not consider a defective declaration made by Kevin Song but signed by Angela Song. Secondly, the Court notes that Defendant generally refers to Exhibits contained in the Song Declaration, which amount to a little over 500 pages of documents; the failure to specify which particular facts or portions are material, combined with the sheer amount of evidence provided, overly burdens this Court to hunt for information. Courts are entitled to assistance from counsel, and an invitation to search without guidance is no more useful than a litigant's request to a district court at the summary judgment stage to paw through the assembled discovery material. Judges are not like pigs, hunting for truffles buried in the record. [Citation]." (Albrechtsen v. Bd. of Regents of Univ. of Wisconsin Sys. (2002) 309 F.3d 433, 436.) The Court will not search for any unhighlighted facts and evidence to support or supplement Defendants general factual assertions made in the opposing brief. Accordingly, there is no triable issue of material fact as to the affirmative defense for breach of the implied duty of quiet enjoyment. Defective Three Days Notice and Setoff According to Defendants responses to written discovery, it is Defendants contention that the amount stated in the Three Day Notice was inaccurate because the Rent owed was not reduced by Defendants claimed damages in the civil action. Defendant alleges that the false alarm issues interrupted her business and caused a loss of income of over $700,000, business reputation of about $500,00, and business value of about $1,000,000. (Peterson Decl.; Exhs. 7-8.) Plaintiff contends Defendant cannot offset her alleged damages against the amount of past-due rent under the lease, and that her obligation to pay rent is independent of the landlords obligations. Defendant fails to address this argument regarding offset in her opposition. For arguments concerning defective notice based on the amount, the Court refers to the analysis above. A citation to Exhibits 3, 5, 8, 10, and 11, without any further analysis or description, is not helpful to the Court. Accordingly, Defendant has not demonstrated a triable issue of material fact in this regard. Retaliatory Eviction Retaliatory eviction occurs When a landlord exercises his legal right to terminate a residential tenancy in an authorized manner, but with the motive of retaliating against a tenant who is not in default but has exercised his legal right to obtain compliance with requirements of habitability. . . . (Four Seas Inv. Corp. v. Int'l Hotel Tenants' Assn. (1978) 81 Cal. App. 3d 604, 610, citing to 3 Witkin, Summary of Cal. Law (8th ed. 1973).) [M]otive is ordinarily a factual issue to be resolved by the trier of fact, but such an issue cannot be submitted to the jury unless substantial evidence appears in the record to support it. (Ibid.) There is no evidence that Plaintiff served the Notice to Pay Notice to Pay Rent or Quit was actuated by a retaliatory motive. Plaintiff has provided evidence that it served the Three Day Notice based on Defendants failure to pay Rent after Plaintiff had served two Notices of Default. As provided above, the Court will not consider Defendants defective declaration, nor the undigestible 500-page collection of documents attached thereto. Defendant has not provided any evidence that would lead to an inference that Plaintiff retaliated against Defendant due to her complaints regarding the fire alarm, gas, and sprinkler. Accordingly, Defendant has not demonstrated a triable issue of material fact that would preclude Plaintiff from evicting Defendant based upon the affirmative defense of retaliation. V. CONCLUSION The Court GRANTS Plaintiff Weingarten Nostat, LLCs motion for summary judgment as to its action for unlawful detainer against Defendant Angela Song. Judgment is hereby ENTERED in favor of Plaintiff Weingarten Nostat, LLC and against Defendant Angela Song in the principal amount of $168,501.19 for past due Rent, and for possession of real property located at 800 Sunset Blvd., Suite A120, Los Angeles, CA 90046. Plaintiff is ordered to give notice. DATED: August 20, 2024 __________________________ Hon. Michelle C. Kim Judge of the Superior Court PLEASE TAKE NOTICE: " Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. " If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line SUBMIT followed by the case number. The body of the email must include the hearing date and time, counsels contact information, and the identity of the party submitting. " Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. " If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.
Ruling
JUAN GUZMAN MARTINEZ VS MARIA G RODRIGUEZ
Aug 22, 2024 |23VECV03596
Case Number: 23VECV03596 Hearing Date: August 22, 2024 Dept: W JUAN GUZMAN MARTINEZ V MARIA G RODRIGUEZ DEFENDANTS MOTION TO SET ASIDE DEFAULT Date of Hearing: August 22, 2024 Trial Date: N/A Department: W Case No.: 23VECV03596 Moving Party: Defendant Maria G. Rodriguez Responding Party: No opposition. BACKGROUND On August 17, 2023, Plaintiff Juan Guzman Martinez filed a complaint against Maria G. Rodriguez for (1) Specific Performance or Damages Based Upon Breach of Express Contract; (2) Constructive Trust Based on Breach of Express Contract; (3) Constructive Trust or Damages Based on Breach of Implied in Fact Contract; (4) Declaratory Relief; (5) Partition; and (6) Promissory Estoppel. This action is related to Juan Guzman Martinez v. Maria G. Rodriguez (23VEFL01144). Request for entry of default was entered December 28, 2023. [TENTATIVE] RULING: Defendant Maria G. Rodriguezs Motion to Set Aside Default is GRANTED DISCUSSION Defendant Maria G. Rodriguez moves to set aside the default entered against Defendant on the grounds that the default was entered as a result of excusable neglect and inadvertence pursuant to Code of Civil Procedure section 473(b). Case law instructs that so long as counsel is willing to fall on their sword, relief is mandatory. (See Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1210.) Section 473s provision for mandatory relief from a dismissal based upon a declaration of attorney error does not require a determination the error was excusable. It applies even when the attorney has no excuse. (Ibid.) Relief is mandatory when a complying affidavit is filed, even if the attorney's neglect was inexcusable. (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516-517.) Former Counsel for Defendant submits a declaration attesting that she spoke with Plaintiff and did not file a response because she believed they were meeting and conferring. (Corral Decl. ¶¶3-4.) Plaintiffs counsel informed Ms. Corral that he needed more time to discuss Defendants position with his client and would get back to her, but never did. (Corral Decl. ¶¶5, 6.) She was never informed they planned on obtaining a default while working on this matter. (Corral Decl. ¶7.) Accordingly, the court finds relief mandatory. The motion has been filed within six months after entry of default. Moreover, the deadline to file an answer was missed due to Former Counsels mistake, surprise, inadvertence, or neglect of the partys attorney and Code of Civil Procedure section 473(b) mandates that the default be set aside. Defendants Motion to Set Aside Default is GRANTED. Defendant is ordered to file an answer within 20 days.
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