DEFTS' SEPARATELY BOUND VOLUME OF EVIDENCE IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT, ETC., F - Document August 28, 2015 (2024)

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Ruling

DEVLIN PROPERTY MANAGEMENT LP, AN ONTARIO, CANADA LIMITED PARTNERSHIP VS DUSTIN GLODNEY, ET AL.

Jul 29, 2024 |6/18/2022 |20SMCV00859

Case Number: 20SMCV00859 Hearing Date: July 29, 2024 Dept: I The matter is here for a jury trial. However, the FSC, which was supposed to occur on July 22, 2024, did not take place because the court was closed on that day. The court will therefore hold the FSC today. The FSC order was given most recently on June 30, 2023over a year ago. On July 17, 2024, the court received the following materials: (1) Defendants Trial brief; (2) Joint Statement of Unusual Issues and Supplemental Statement, which suggests that plaintiffs counsel is not an active member of the bar and the defense entities (other than the human Glodney) are unrepresented, and suggesting bifurcation to determine if there is alter ego liability; (3) Joint Exhibit List showing 74 exhibits from plaintiff and 7 from defendant, but no stipulations as to authenticity or objections; (4) Joint Witness List showing 21.5 hours of expected direct testimony and 19.5 hours of cross, with six of eleven witnesses being subject to objection as being previously undisclosed; (5) Joint Short Statement of the Case; (6) Joint Jury Instructions (actually Plaintiffs proposed Joint Jury Instructions) but without any index; (7) Joint Deposition Chart with no objections (suggesting that no one objects to these excerpts); (8) Notice of Remote Appearances of two witnesses by plaintiff to which defendant objects. The court has not received any contested jury instructions, which is fine if there are none; verdict form, which must be provided forthwith; jury questionnaire, which is not required if no one wants one; or plaintiffs trial brief, which is optional. The court is not convinced that the case is ready for trial, but will discuss the matter with counsel. There may be another case ready for trial on 8/5/24. If so, this case might trail that one.

Ruling

HILDA BENNETT, AN INDIVIDUAL, ET AL. VS HUGO RODRIGUEZ, AN INDIVIDUAL

Jul 31, 2024 |23STCV24386

Case Number: 23STCV24386 Hearing Date: July 31, 2024 Dept: 50 Superior Court of California County of Los Angeles Department 50 HILDA BENNETT, et al., Plaintiffs, vs. HUGO RODRIGUEZ, et al., Defendants. Case No.: 23STCV24386 Hearing Date: July 31, 2024 Hearing Time: 2:00 p.m. [TENTATIVE] ORDER RE: DEMURRER TO ANSWER OF CROSS-DEFENDANTS HILDA BENNETT, YOLANDA TELLEZ AND GUSTAVO RODRIGUEZ Background On October 5, 2023, Plaintiffs Hilda Bennett, an individual; Hilda Bennett, Trustee of the B and H Family Trust; Yolanda Tellez; and Gustavo Rodriguez filed this action against Defendant Hugo Rodriguez. The Complaint alleges one cause of action for partition of real property. On April 3, 2024, Hugo A. Rodriguez aka Antonio H. Rodriguez as Trustee of the Hugo A. Rodriguez aka Antonio H. Rodriguez and Antonio H. Rodriguez Trust filed the operative First Amended Cross-Complaint against Cross-Defendants Hilda Bennett, an individual; Hilda R. Bennett, Trustee of the B and H Bennett Family Trust; and Yolanda Tellez, alleging causes of action for (1) conversion and (2) negligence. On May 6, 2024, Hilda R Bennett, Yolanda Tellez, and Gustavo Rodriguez (collectively, Cross-Defendants) filed a Verified Answer to First Amended Cross-Complaint. Hugo Rodriguez (Rodriguez) now appears to demur to Cross-Defendants Verified Answer to First Amended Cross-Complaint. Hilda Bennett, an individual; Hilda R Bennett, Trustee of the B and H Bennett Family Trust; Yolanda Tellez; and Gustavo Rodriguez oppose. Discussion As an initial matter, it does not appear that Rodriguez filed any declaration in support of the demurrer demonstrating that he met and conferred with Cross-Defendants in advance of filing the demurrer. Pursuant to Code of Civil Procedure section 430.41, subdivision (a), [b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference 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. (Emphasis added.) Such meeting and conferring must be done in good faith with an effort to try to resolve the issues subject to the demurrer. In light of the foregoing, the hearing on Rodriguezs demurrer is continued to _______________, 2024 at 2:00 p.m. in Dept. 50. Rodriguez is¿ordered to meet¿and confer¿with Cross-Defendants within 10 days of the date of this order.¿If the parties are unable to resolve the pleading issues¿or if the parties are otherwise unable to meet and confer in good faith, Rodriguez is to¿thereafter¿file and serve¿a declaration setting forth the efforts to meet and confer in compliance with¿Code of Civil Procedure section 430.41, subdivision (a)(3) within 15 days of this order.¿ Rodriguez is ordered to give notice of this order. DATED: July 31, 2024 ________________________________ Hon. Teresa A. Beaudet Judge, Los Angeles Superior Court

Ruling

NPSC WESTMORELAND LLC VS JOSE HERNANDEZ, ET AL.

Aug 06, 2024 |23STCV23557

Case Number: 23STCV23557 Hearing Date: August 6, 2024 Dept: 73 08/06/24 Dept. 73 Hon. Rolf Treu, Judge presiding NPSC WESTMORELAND LLC v. HERNANDEZ, et al. (23STCV23557) Counsel for Plaintiff/opposing party: David Frank (Frank Law Group, PC) Counsel for Defendants/moving party: Christian Oronsaye (Ivy Crest Attorneys, APC) MOTION FOR SUMMARY JUDGMENT (filed by Defendants on 06/20/2024) TENTATIVE RULING Defendants motion for summary judgment is GRANTED. I. BACKGROUND On September 28, 2023, Plaintiff NPSC Westmoreland LLC (Plaintiff) filed this forcible detainer action against Defendants Jose Hernandez and Diane Gomez (Defendants) for the premises located at 1140 N Westmoreland Avenue, Los Angeles, California, 90029, County of Los Angeles (the Premises). The Complaint alleges the following. On or about November 8, 2017, Plaintiff acquired title to the Premises. (Compl. ¶ 7.) At some time after Plaintiff acquired the Premises, Plaintiff, through its agents, verbally allowed Nikola Zuvic to temporarily occupy the Premises as a licensee in exchange for management of the Premises and other units Plaintiffs owned. (Id. ¶ 8.) At no time did Plaintiff provide Zuvic with any authority, explicit, ostensible, or otherwise, to allow any other person or persons to occupy the Premises or to rent or lease the Premises to any person or persons. (Ibid.) Shortly after Plaintiffs acquisition of the Premises, Defendants unlawfully entered and possessed the Premises without the knowledge or permission of Plaintiff. At no time have Defendants paid rent to Plaintiff for the Premises or otherwise occupied the Premises with the permission of Plaintiff. (Id. ¶ 9.) Since at least 2018, Defendants have forcibly prevented Plaintiff from regaining possession of the Premises by changing the locks, physically occupying the Premises, claiming possession of the Premises verbally and in writing, and denying entry by all others, including Plaintiff and its agents. (Id. ¶ 11.) On or about June 6, 2023, Plaintiff caused to be served upon Defendants a Five-Day Notice to Quit for Forcible Detainer, demanding surrender of the Premises to Plaintiff. (Id. ¶ 12.) Defendants have retained and continue to retain, without Plaintiff s consent, possession of the Premises up to and including the date of Plaintiff s verification of this complaint and Plaintiff is informed and believes, and based thereon alleges, that Defendants are intending to remain permanently in possession of the Premises. (Id. ¶ 14.) The Complaint alleges a single cause of action for forcible detainer. On June 20, 2024, Defendants filed a motion for summary judgment or alternatively, summary adjudication, arguing: · Defendants are entitled to judgment pursuant to CCP § 1172 because they have been in possession of the Property for more than one year before Plaintiff filed this action. · As a matter of law, where a defendant has resided in the subject property for a period exceeding one year, the plaintiff is barred from bringing a claim for a forcible detainer under CCP § 1172. · Here, there is no dispute in this case that the Defendant has been a resident of the subject property since September 2018. o Here, the Plaintiff has conclusively, through the verified complaint, admitted that Defendants have been in possession since 2018 and that Zuvic was its agent and cannot contradict the undisputed facts at this time. (Complaint, ¶¶ 7-9, 11; Hernandez Decl., ¶¶ 2-15.) · In addition, the evidence submitted here showed that the Defendant paid rent and thus entered the premises with Plaintiffs' consent. A defendant's consensual entry onto the premises sets up a defense to forcible entry. (See, e.g., Certeri v. Roberts (1903) 140. Cal. 164, 166; see also Jordan v. Talbot (1961) 55 Cal.2d 597, 605.) Plaintiff did not file an opposition. II. ANALYSIS A. Legal Standard for Motion for Summary Judgment CCP § 1170.7 provides that 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. In moving for summary judgment, a defendant . . . has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. (CCP § 437c(p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to¿the¿cause of action or a defense thereto. (CCP § 437c(p)(2).) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 850 (as modified (July 11, 2001).) The plaintiff shall not rely upon the¿allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to¿the¿cause of action or a defense thereto. (CCP § 437c(p)(2).) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining¿if¿the papers show that there is no triable issue as to any material fact,¿the court shall consider all of the evidence set forth in the papers, except¿the evidence¿to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment¿shall¿not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact. (Id. § 437c(c).) Code of Civil Procedure section 437c(s) makes Code of Civil Procedure section 437c(a) (time limit requirements for motions for summary judgment and Code of Civil Procedure section 437c(b) (requirements for a separate statement of undisputed facts) inapplicable to unlawful detainer actions. B. Discussion CCP § 1172 provides in relevant part that, as an affirmative defense to a cause of action for forcible detainer, a defendant need only show that he has been in quiet possession of real property for at least one year before the beginning of the forcible detainer proceedings: The defendant may show in his defense that he or his ancestors, or those whose interest in such premises he claims, have been in the quiet possession thereof for the space of one whole year together next before the commencement of the proceedings, and that his interest therein is not ended or determined; and such showing is a bar to the proceedings. (CCP § 1172.) One purpose behind this defense is similar to CCP § 1161(2)s one-year rent limitation: to prevent plaintiffs from sleeping on their rights and to encourage prompt action with respect to issues of possession. (Cf. Levitz Furniture Co. v. Wingtip Commcns (2001) 86 Cal.App.4th 1035, 1040 [the policy underlying the one-year limit in CCP § 1161(2) is to prevent a landlord from sitting on his or her rights, when rent is unpaid at some point during the life of a lease, then using long-overdue rent (but no recently overdue rent) to effect an eviction.].) The defendants possession of the property, standing alone, appears to be sufficient to invoke the defense. For example, in Wilson v. Carson (1910) 14 Cal.App.570, the court of appeal noted that the section 1172 defense could be established by a defendant who took possession of property after a prior tenant had vacated and continued to hold possession thereof down to the time of the institution of this action, more than a year thereafter. (Id. at 571572.) However, a defendant cannot satisfy the one year requirement by claiming the ousted former occupants time in possession as his own. (Karp v. Margolis (1958) 159 Cal.App.2d 69,74 [holding that defendants who, three days before litigation commenced and without proceeding pursuant to CCP § 1161a, had ousted former owners of real property after purchasing title at a trustees sale could not satisfy CCP § 1172 because they could not use the very possession they seek to disrupt as a basis of one year's quiet possession under the section as a defense for their actions].) Here, Defendants contend that they have been in possession of the Premises for more than one year before Plaintiff filed this action on September 28, 2023. In support of the motion, Defendants point to the Complaint that alleges Defendants unlawfully entered and possessed the Premises without the knowledge or permission of Plaintiff shortly after Plaintiffs acquisition of the Premises. (Complaint, ¶¶ 7-9.) The Complaint alleges Plaintiff acquired the Premises on or about November 8, 2017. (Ibid.) The Complaint also alleges since at least 2018, Defendants have forcibly prevented Plaintiff from regaining possession of the Premises by changing the locks, physically occupying the Premises, claiming possession of the Premises verbally and in writing, and denying entry by all others, including Plaintiff and its agents. (Id. ¶ 11.) Thus, Defendants assert that it is undisputed that Defendants have resided on the premises since at least 2018. (See Walker v. Dorn, (1966) 240 Cal. App. 2d 118 [facts established by pleadings as judicial admissions are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted by the party whose pleadings are used against him or her.]) In further support of their motion, Defendant Hernandez states that they had been continuously living at the Premises since September 2018. (Hernandez Decl., ¶ 6.) Defendant Hernandez further states that Plaintiff has been aware of this fact, since Plaintiff has accepted rent from Defendant, through its manager, from September 2018 through June 2023, when Plaintiff stopped accepting rent. (Id. ¶ 7.) In support of this latter claim, Defendants attach pictures of several receipts of rent payments. (Oronsaye Decl., Ex. 1.) Based on the allegations in the Complaint and declaration submitted by Defendant Hernandez, the Court finds Defendants have established a defense under CCP § 1172, as it appears Defendants had been in possession of the Premises for more than a year before Plaintiff filed this action. Therefore, the Court finds that Defendants have met their initial burden on summary judgment of establishing a defense under CCP § 1172, and the burden now shifts to Plaintiff to establish a triable issue of material fact. (CCP § 437c(p)(2).) Here, Plaintiff did not file an opposition. A party who has not timely filed written opposition to a motion&may not be afforded an opportunity to offer oral argument at the hearing. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The failure to file opposition creates an inference that the motion or demurrer is meritorious.¿ (Id.)¿ In such cases, the court may hear argument limited to a request for a continuance of the hearing in order to afford an opportunity for written opposition. (Id.) [T]he rule is patently intended to prevent the introduction of legal theories without prior notice to opposing counsel and the court. (Id.) Plaintiff fails to carry its burden. Based on the foregoing, the Court GRANTS Defendants motion for summary judgment. III. DISPOSITION Defendants motion for summary judgment is GRANTED.

Ruling

PACIFIC EUROTEX CORP. VS DAVID TALASAZAN

Jul 30, 2024 |23STCV22724

Case Number: 23STCV22724 Hearing Date: July 30, 2024 Dept: 50 Superior Court of California County of Los Angeles Department 50 PACIFIC EUROTEX CORP., Plaintiff, vs. DAVID TALASAZAN, et al., Defendants. Case No.: 23STCV22724 Hearing Date: July 30, 2024 Hearing Time: 10:00 a.m. [TENTATIVE] ORDER RE: PLAINTIFFS REQUEST FOR DEFAULT JUDGMENT Plaintiff Pacific Eurotex Corp. (Plaintiff) requests entry of default judgment against Defendant David Talasazan. Plaintiff requests judgment in the total amount of $44,528.12, comprising $42,333.08 in damages, $535.00 in costs, and $1,660.04 in attorney fees. The Court notes one defect with the submitted default judgment package. The Declaration for Default Judgment by Court in support of the request indicates that Plaintiff seeks holdover damages for the period of October 1, 2023 to December 15, 2023. Plaintiff appears to indicate that there are 76 days between these dates. (See Declaration, Item 12(c).) However, there are 75 days between October 1, 2023 and December 15, 2023. $333.33 per day multiplied by 75 days is $24,999.75. However, Plaintiff seeks $25,333.08 in holdover damages based on 76 days. The Court will discuss this issue with Plaintiff at the hearing. DATED: July 30, 2024 ________________________________ Hon. Teresa A. Beaudet Judge, Los Angeles Superior Court

Ruling

Montezuma Lodge No. 172, I.O.O.F., of California, a California Public Benefit Corporation vs. Connie Jean Lewis, Trustee, Lewis Family Trust

Jul 31, 2024 |CU23-05966

CU23-05966Demurrer by Defendant CONNIE LEWIS, Trustee of the Lewis Family Trust, toComplaintTENTATIVE RULINGThe papers filed in support of this demurrer include a declaration by counsel as to meetand confer efforts preceding the filing. That declaration purported to attach as anexhibit a copy of the meet and confer letter counsel claimed to have mailed to opposingcounsel. But no letter was attached.More importantly, the request for judicial notice also claimed to be attaching copies ofthe two documents for which judicial notice was being requested. These documentswere to be a copy of a page of the Assessors Map Book, “showing the propertiesalleged to be at issue in this matter”; and a copy of a Google Map page showing certainaddresses. But again, no documents were attached.The request for judicial notice was intended to support the uncertainty basis for thisdemurrer to the entirety of the complaint, and thus the court cannot find the complaint isuncertain.The demurrer to the trespass, nuisance and negligence causes of action is alsooverruled. Page 2 of 4One of the elements of trespass is satisfied by a negligent act of the defendant causingentry onto the plaintiff’s property.The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2)the defendant's intentional, reckless, or negligent entry onto the property; (3) lack ofpermission for the entry or acts in excess of permission; (4) harm; and (5) thedefendant's conduct was a substantial factor in causing the harm. (See CACI No. 2000.)Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.Likewise, an element of nuisance is met by negligent conduct causing interference withanother’s real property. Lussier v. San Lorenzo Valley Water Dist. (1988) 206Cal.App.3d 92, 102 [“a nuisance requires some sort of conduct, i.e. intentional andunreasonable, reckless, negligent, or ultrahazardous, that unreasonably interferes withanother's use and enjoyment of his property”].The complaint alleged that the Demurring Party “without approval by or permits from theCity of Dixon, personally directed an individual to pave the entire Parking Area byadding a layer of tar and gravel, (commonly called “blacktop”) [Complaint, ¶24]; that“The added layer did not maintain the previously existing grading but instead directssurface waters towards and onto the Oddfellow Property where it gathers and pools . . .[Complaint, ¶25], and causes damage [Complaint, ¶¶26-29].The court finds that the complaint gives the defendant “fair notice” of the nature, scopeand extent of the claims, by implying that the decision to pave the parking lot causedrainwater to be diverted from its historical path, to therefore pool in greater quantitiesnear the Oddfellow property. Edmon & Karnow (Weil & Brown), Civil Procedure BeforeTrial, §§6:128 and 6:129, p. 6-44.The court therefore overrules in its entirety the demurrer to complaint, and directs theDemurring Party to file and serve an answer within 30 days, to avoid the possibility ofdefault thereafter being entered.The parties are reminded to appear for the case management conference concurrentlyset for July 31 at 8:30 a.m., and the court will also conduct the OSC as to sanctions atthat time.PETITION OF ARTEFFECT XD, LLCCU24-04410Petition for Approval of Transfer of Structured Settlement Payment RightsTENTATIVE RULINGThe payee and counsel for the petitioning proposed transferee are to appear for hearingas scheduled. Zoom appearance is approved. Page 3 of 4

Ruling

ROSEMARIE MACGUINNESS ET AL VS. 246 CARL STREET (EAT), LLC, ET AL

Jul 30, 2024 |CGC20586159

Matter on the Law & Motion Calendar for Tuesday, July 30, 2024, Line 4. PLAINTIFF ROSEMARIE MACGUINNES AND PHILIP BELLBER's Motion For Determination Of Good Faith Settlement. Plaintiffs' unopposed 7/8/24 "motion for determination of good faith settlement" is granted. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)

Ruling

KARIYA KAYAMORI VS DAVID ROSS, ET AL.

Jul 30, 2024 |24SMCV03010

Case Number: 24SMCV03010 Hearing Date: July 30, 2024 Dept: M CASE NAME: Kayamori v. Ross, et al. CASE NO.: 24SMCV03010 MOTION: Motion to Strike Damages HEARING DATE: 7/30/2024 LEGAL STANDARD Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded].) Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿in what manner¿plaintiff can amend the complaint, and¿how¿that amendment will change the legal effect of the pleading.¿(Id.) ANALYSIS Defendant David Ross and Defendant Leah Ross separately move to strike the Plaintiffs request for special damages and consequential damages. Defendants offers no authority suggesting that, under the pled facts of unlawful detainer, Plaintiff cannot recover consequential or special damages. Code of Civil Procedure section 1174(b) provides that, as a remedy for any unlawful detainer, the fact finder must assess the damages occasioned to the plaintiff . . . alleged in the complaint and proved on the trial, and find the amount of any rent due . . .. The section also provides for $600 in statutory damages in addition actual damages, including rent found due. Accordingly, a judgment of possession for the landlord may award the landlord all lawfully allowed back-due rent and damages pled and proved. (Code Civ. Proc., § 1174(a), (b).) Civil Code section 1951.2 likewise provides that, in case of a breach of lease, the lessor may recover (1) the worth at the time of award of the unpaid rent which had been earned at the time of termination; (2) the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that the lessee proves could have been reasonably avoided; (3) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the lessee proves could be reasonably avoided; and (4) any other amount necessary to compensate the lessor for all the detriment proximately caused by the lessees failure to perform his obligations under the lease or which in the ordinary course of things would be likely to result therefrom. These statutes, read together, show an entitlement to special or consequential damages in case of a breach of lease or unlawful detainer. The complaint alleges that Defendants breached the subject lease agreement and committed unlawful detainer. Defendants have missed rent payments required by the Lease, totaling no less than $32,208.14. (Compl., ¶ 12.) Plaintiff alleges specific rental damages of $533.33 per day. (Compl., ¶¶ 16, 19.) Plaintiff alleges that it suffered damages beyond rent, including damages for utilities (water, gas and electric) in the amount of $53.14, internet equipment in the amount of $130.00, and check fees in amount of $25.00. (Compl., ¶ 12.) Thus, the complaint establishes sufficient facts to show entitlement to typical unlawful detainer remedies, necessarily including special and consequential damages. Accordingly, the motions are DENIED. Defendants are ordered to answer only within 10 days.

Ruling

SHABNAM AKHOUNDZADEH VS RICHARD KHATIBI, ET AL.

Aug 05, 2024 |21VECV00692

Case Number: 21VECV00692 Hearing Date: August 5, 2024 Dept: T 21VECV00692 AKHOUNDZADEH V KHATIBI [TENTATIVE] ORDER: Cross-Defendant Karen Dr LLCs Motion for Attorneys Fees against Cross-Defendant Richard Khatibi is GRANTED in Part and reduced to $117,536.75. Cross-Complainant Richard Khatibis Request for Judicial Notice is DENIED. INTRODUCTION Cross-Defendant Karen Dr LLC (LLC) moves for $146,545.25 in attorneys fees as the prevailing party against Cross-Complainants Richard Khatibi (Richard), Melica Khatibi (Melica), and Faezeh Afchehes (Faezeh) Third Amended Cross-Complaint (TAXC). Fees are requested to be levied against Richard only. LLCs motion does not move for attorneys fees against Melica or Faezeh. Despite the fees being only requested against Richard, an opposition was filed by Faezeh and Melica. Richard filed his own separate opposition. LLC filed a reply in response. The Court considered both oppositions briefs and the reply brief. PROCEDURE The Court file reflects that LLC preliminarily filed a motion for attorneys fees on May 30, 2024 with a June 27, 2024, hearing date. On June 10, 2024, LLC then filed a notice of continuance of the fees motion asserting the new hearing date to be July 12, 2024. The July 12, 2024, hearing was vacated by the Court and never heard. On June 20, 2024, LLC filed a Continued fees motion that asserted the instant hearing date. The Court noted that the Points and Authorities of both motions were verbatim copies of each other. So that there is no ambiguity in the Court record, the May 30, 2024, motion was not considered on the merits. The Courts analysis is based upon the Continued fees motion, filed on June 20, 2024. DISCUSSION LLC asserted that [a]n attorneys fees provision in both written and oral contracts may be enforced pursuant to Civil Code sec. 1717. (Cano v. Glover (2006) 143 Cal.App.4th 326, 331.) Richard argued that oral agreements without explicit provisions for fees cannot form the basis for a fee recovery. (Khajavi v. Feather River Anesthesia Med. Grp. (2000) 84 Cal.App.4th 32 (Khajavi).) However, Khajavi is factually distinguishable from the allegations and/or facts presented in the instant motion. The facts in Khajavi provided that there was never any oral agreement as to fees or no mutual consent as to fees because the parties never discussed it. (Khajavi, supra, 84 Cal.App.4th at p. 60.) In the instant action, as discussed below, LLC presented facts/evidence from Richards own testimony that the parties orally agreed to a fees agreement. Richards reliance upon Khajavi is unpersuasive because the opinion is inapplicable. A non-signatory defendant seeking to recover attorneys fees must establish (1) it was sued on a contract with an attorney fee provision; (2) it prevailed on the contract claim(s) and/or tort claims arising from the contract; and (3) the opponent would have had a right to recover fees had it prevailed. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128-129; Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 818-820 (Brown Bark).) In the TAXC relevant to LLC, Richard alleged the third COA for breach of covenant of good faith and fair dealing, the fifth COA for Unfair Business Practices violation (UCL), the sixth COA for accounting, the seventh COA for open book account, the eighth COA for quantum meruit, the tenth COA for dissolution of the joint venture and AEK; Faezeh alleged the sixteenth COA for quiet title, and all Cross-Complainants alleged the seventeenth COA for declaratory relief. These COAs were, in part, grounded on the allegation that the Joint Venture Agreement required LLC to convey the Karen Property to Richards daughter, Melica, upon reaching age 18. (TAXC par. 34.) In the TAXC, Richard requested attorneys fees under the third COA for breach of covenant of good faith and fair dealing (Prayer pg. 38:9); the fifth COA for the UCL violation (TAXC par. 109); the sixth COA for accounting (TAXC par. 127); and the eighth COA for quantum meruit (Prayer pg. 38:9). The Prayer also included a catch-all request for fees. (TAXC Prayer pg. 38:19-20.) Richards request for fees were grounded on several tort claims, equitable remedies, and a single statutory claim (i.e., UCL violation). The motion only raised a request for fees under Civil Code, section 1717 (contract basis) and did not argue or request fees under any statutory grounds, including the UCL COA. In that the motion was silent as to any statutory basis for fees, the Court finds any fee request under the UCL waived. A judge in a civil case is not 'obligated to seek out theories [a party] might have advanced, or to articulate for him that which & [a party] has left unspoken.' (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686.) Contentions are waived when a party fails to support them with reasoned argument and citations to authority. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.) At the outset, Richard did not expressly name LLC in the second COA for breach of contract. Without pleading the breach of contract COA against LLC, there is insufficient grounds to show that LLC was sued on a contract the first factor listed above. However, LLC argued that Ebrahim was either the agent or alter ego of LLC. (TAXC pars. 15 and 17.) The alter ego and agency allegations in the TAXC are sufficient grounds for LLC to request contractual fees. Richard argued that the agency and alter ego theories were not merited. However, LLC is not required to show that the claim was merited. The merit of the claim is irrelevant. The pertinent inquiry is whether LLC would have been liable to Richard for fees in a hypothetical situation in which Richard prevailed on his claim. (Brown Bark, supra, 219 Cal.App.4th at p. 827.) As such, LLC has shown sufficient facts to show that Richards claim against LLC was on a contract, at least as to the second COA for breach of contract. Specifically as to the tort and equitable claims, [S]ection 1717 does not apply to tort claims; it determines which party, if any, is entitled to attorney[ ] fees on a contract claim only. [Citations.] As to tort claims, the question of whether to award attorney[ ] fees turns on the language of the contractual attorney[ ] fee provision, i.e., whether the party seeking fees has prevailed within the meaning of the provision and whether the type of claim is within the scope of the provision. [Citation.] This distinction between contract and tort claims flows from the fact that a tort claim is not on a contract and is therefore outside the ambit of section 1717. [Citations.] [Internal citations omitted.] Section 1717 's reciprocity principles therefore make a unilateral attorney fee provision reciprocal only on contract claims; they do not make a unilateral provision reciprocal on tort claims. [Internal citations omitted.] A party may recover attorney fees on a tort claim only if an attorney fee provision broad enough to cover tort claims expressly identifies that party as a party entitled to its benefits. [Internal citations omitted.] (Brown Bark, supra, 219 Cal.App.4th at pp. 827-828.) The Brown Bark Court further held that the scope of the fees provision is only half the analysis. The other half of the analysis is to determine whether the fee agreement/provision identified LLC as a party entitled to the benefit of the fee agreement/provision. LLC provided that a fees provision was included in the oral Joint Venture Agreement, which involved Richard, on the one hand, and Aliasghar Khatibi (Aliasghar), and Ebrahim Khatibi (Ebrahim), jointly, on the other hand, (who later became AEK Global Investments LLC (AEK)). Through the deposition testimony of Richard, LLC provided facts to show that Richard, Aliasghar, and Ebrahims discussions during the formation of the Joint Venture included an agreement to include an attorneys fees provision. (Shelly Shafron (Shafron) Supp. Decl. par. 3, Exh. 1.) However, Richards deposition testimony was limited to showing that a fees provision was agreed upon. Richards testimony did not provide what was actually stated or the exact wording used for the fees agreement/provision. Without the specific words used to form the actual attorneys fees provision, there is insufficient evidence to show that the attorneys fees agreement was broad or narrow in scope and whether tort claims would be covered in the fees agreement. Also, without any evidence of what exactly was said at the meetings, it cannot be determined if LLC was expressly identified as a beneficiary of the fee agreement/provision. Because there is insufficient evidence as to the exact wording of the fees agreement to show scope and identity of the beneficiary, LLC failed to meet its burden to show that attorneys fees for the tort and equitable claims are on a contract. Moving forward to the second factor of the test, limited to the requested fees incurred by LLC against Richard in defending the second COA for breach of contract, LLC must show that LLC prevailed on the second COA for breach of contract. Based upon the granting of the summary judgment and entry of judgment, LLC sufficiently provided that it prevailed on this COA. To the extent that the second COA alleged that Ebrahim, as the director/shareholder of LLC, was required to convey the Karen Property to Richards daughter, Melica upon her reaching age 18 (see TAXC par. 34,) the Courts ruling on the MSJ/MSA expressly held that there was no triable issue of fact that Shabnam Akhoundzadeh (Shabnam) was the 100% owner of LLC. (See April 16, 2024, Order at pg. 6 of 8.) With there being no triable issue of fact as to the owner/member of the LLC, the allegation to support any breach of contract claim against LLC based upon Ebrahim being an agent, representation, and/or employee of the LLC or the alter ego of LLC is unpersuasive. The ruling on the MSJ and entry of judgment in favor of LLC shows that LLC prevailed on any contract claim alleged against it. LLC persuasively argued the second factor of the test. Richard disputed LLCs prevailing party status because LLC quitclaimed Karen Property prior to filing the MSJ/MSA, divesting itself of any interest from the Karen Property. However, the ruling on the MSJ/MSA remains and the quiet title and declaratory relief COAs were dismissed. Richard failed to present any legal authority to support its contention that LLC cannot be a prevailing party when the Court ruled in favor of its MSJ/MSA. Richards dispute as to prevailing party status is unpersuasive. The third factor of the test requires LLC to show that the opponent (i.e., Richard) would have had a right to recover fees had it prevailed. As analyzed above, Richard made a claim for attorneys fees under the breach of contract COA and alleged that Ebrahim was an agent, representative, or employee of LLC. Hypothetically, had Richard prevailed on this claim, LLC would be a party to the Joint Venture and liable for attorneys fees to Richard. LLC met its burden to show that Richard would have had a right to recover fees had it prevailed. LLC is found to be entitled to attorneys fees provision of the oral Joint Venture Agreement. LLC argued that the fees incurred by Shabnam should be included as fees awarded to LLC. (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 687; Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230; Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101; Wagner v. Benson (1980) 101 Cal.App.3d 27, 37.) However, the legal authority cited by LLC is inapplicable because none of the cases involve a party requesting to include fees incurred by a separate party. LLCs attempt to boot-strap fees incurred by Shabnam and/or attempt to seek fees incurred prior to actively defending this action is unpersuasive. As asserted by Richard, fees added to LLCs request that were incurred by Shabnam prior to February 20, 2023 are improper. (See Proof of Service filed February 22, 2023.) Fees incurred by Shabnam prior to February 20, 2023 are DENIED. Richard again argued that LLC was administratively dissolved and not properly before this Court. However, this issue was reviewed and ruled upon in favor of LLC. The Court did not consider the opposition argument as to LLCs capacity, or lack thereof, to defend. Lastly, Richards opposition to the motion for attorneys fees objected to items/other costs requested in LLCs Cost Memo. Opposition to a motion for attorneys fees is not the proper procedural vehicle to object to a Cost Memo. Raising Cost issues in the opposition results in Richards failure to provide LLC with proper notice and opportunity to be heard. The Court did not consider Richards arguments regarding LLCs Cost Memo. Because LLC is not entitled to fees incurred by Shabnam and the fees incurred in defending the tort COAs, LLCs request for $145,545.25 fees is improper and excessive. The court awards LLC its fees at a reduced and reasonable amount. The Court reduces LLCs fees to $117,536.75. The motion for attorneys fees is GRANTED in Part and reduced to $117,536.75. NOTES: 1. To avoid confusion, the Court refers to the parties using their first names. The Court means no disrespect. 2. Richards and LLCs evidentiary objections do not affect the court's analysis and they are overruled. LLCs evidentiary objections against Richards RJN are sustained. 3. LLCs argument related to fees incurred by Shabnam started with legal authority involving apportionment or allocation of fees between distinct causes of action (i.e., fees incurred between tort COAs and contract COAs). (See Motion pg. 10:9-15.) However, LLC then proceeded to ask for fees incurred by Shabnam. LLC did not ask the Court to not apportion/allocate its fees between the distinct COAs. So the issue was not reviewed by the court. 4. Attorneys fees were also requested in the sixteenth COA for quiet title (TAXC par. 171). However, this is irrelevant because Richard did not allege the quiet title COA. It was only alleged by Faezeh. IT IS SO ORDERED, CLERK TO GIVE NOTICE.

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