SUMMONS & COMPLAINT W/PROOF OF SVC OF HARDSHIP DECL. & AFF. STATING NO RECEIPT OF HARDSHIP DECL. December 01, 2021 (2025)

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Aug 06, 2024 |Matrimonial - Contested |Matrimonial - Contested |EFC-2024-1332

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Synchrony Bank v. William Corn

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Ruling

VICTOR SILVA, ET AL. VS EMMA NUNEZ

Aug 09, 2024 |23STCV03198

Case Number: 23STCV03198 Hearing Date: August 9, 2024 Dept: 34 Silva, et al. v. Nunez, et al. (23STCV03198) 1. Plaintiff Maria Ramirez Motion to Compel Responses to Form Interrogatories is GRANTED. Defendant Emma Nunez is ordered to serve her responses to the subject discovery, without objections and with a verification, within 20 days from the date of the notice of ruling. Sanctions are awarded in the amount of $510.00 and are payable within 20 days from the date of the notice of ruling. 2. Plaintiff Maria Ramirez Motion to Compel Responses to Request for Production of Documents is GRANTED. Defendant Emma Nunez is ordered to serve her responses to the subject discovery, without objections and with a verification, within 20 days from the date of the notice of ruling. Sanctions are awarded in the amount of $510.00 and are payable within 20 days from the date of the notice of ruling. 3. Plaintiff Maria Ramirez Motion to Compel Responses to Special Interrogatories is GRANTED. Defendant Emma Nunez is ordered to serve her responses to the subject discovery, without objections and with a verification, within 20 days from the date of the notice of ruling. Sanctions are awarded in the amount of $510.00 and are payable within 20 days from the date of the notice of ruling. 4. Plaintiff Maria Ramirez Motion for an Order that the Truth of the Matter be Deemed Admitted is GRANTED. Pursuant to Code of Civil Procedure § 2033.280, subdivision (b), the court orders the truth of the matters specified in the Requests for Admissions, propounded by Plaintiff Maria Ramirez to Defendant Emma Nunez, deemed admitted. Sanctions are awarded in the amount of $510.00 and are payable within 20 days from the date of the notice of ruling. 5. Plaintiff Maria Ramirez Motion to Compel the Deposition of Defendant Emma Nunez is GRANTED. Sanctions are awarded in the amount of $510.00 and are payable within 20 days from the date of the notice of ruling. Background Plaintiffs Victor Silva, Maria Ramirez, Salma Silva and Victor Silva, Jr., by and through his Guardian Ad Litem Maria Ramirez (Plaintiffs) allege as follows: On or about 2000, Plaintiff Victor Silva (Victor) and his wife Maria Ramirez (Maria) rented a dwelling at 321 N. Arizona Street, Los Angeles, California (hereafter the Property). They have lived there since with their children, Plaintiffs Salma Silva and Victor Silva, Jr. (collectively with Victor and Maria as Plaintiffs). On or about November, 2018, Defendant Emma Nunez (Emma or Defendant) purchased the Property and made her son, Defendant Sergio Nunez (Sergio and collectively the Defendants), the property manager. At the time Defendant purchased the property, Plaintiffs rent was approximately $685.00. Defendant illegally increased Plaintiffs rent to $1,500.00 per month, and demanded Plaintiffs entered into a written lease. On or about November, 2018, Plaintiffs Victor and Maria entered into a written rental agreement with Defendants for the rental of the Property. Plaintiffs filed a complaint with the County of Los Angeles Department of Consumer and Business Affairs, which determined the rent increase was illegal and ordered Defendant to revert to the pre-contract rent. During their tenancies, Plaintiffs suffered from some or all of the following substandard condition, including but not limited to: holes in the wall, cockroach infestation, defective electrical outlets/receptacles, defective or damaged doors, defective and broken flooring; peeling paint; leaking faucets; deteriorated stairs; lack and ineffective waterproofing and weatherproofing. On or about January 2023, Defendant, through her son and agent Defendant Sergio Nunez (Sergio), interrupted electrical service to Plaintiffs unit. As such, only one room in the Property has light. Despite Plaintiffs request to restore service, Defendant Sergio told Plaintiff Victor to leave the dwelling if he did not like being without electricity and that he would not restore the service to the dwelling. On February 14, 2022, Plaintiffs filed a Complaint, asserting the following causes of action: 1. Civil Code section 1942.4 2. Breach of Implied Warranty of Habitability 3. Breach of the Covenant of Quiet Enjoyment 4. Nuisance 5. Business and Professions Code section 17200 et seq. 6. Negligence 7. Civil Code section 789.3 8. Los Angeles County Code section 8.52.130 A Case Management Conference is set for August 9, 2024. 1. Motion to Compel Re: Form Interrogatories (General) Legal Standard A response to interrogatories is due 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a).) If a party to whom interrogatories are directed fails to serve a timely response, . . . [t]he party propounding the interrogatories may move for an order compelling response to the interrogatories. (Code Civ. Proc., § 2030.290, subd. (b).) The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust . . . (Code Civ. Proc., § 2030.290, subd. (c).) Discussion Plaintiff Maria moves the court for an order compelling Defendant to provide verified responses, without objections, to Plaintiffs Form Interrogatories (subject discovery). Plaintiff Maria also seeks sanctions against Defendant in the amount of $775.00. Plaintiff Marias counsel represents the following: On or about March 28, 2024, I served Defendant with Special Interrogatories, Set One, Request for Production for Documents, Set One, Requests for Admission and Form Interrogatories, Set One. (Franco Decl., ¶ 2.) The Responses were due May 2, 2024. (Id.) On May 8, 2024, I sent Defendant [] correspondence requesting responses by no later than May 13, 2024. (Id., ¶ 3.) I have called Defendant numerous times in regards to the deposition I have set for her[.] (Id., ¶ 4.) I have not been able to speak with her. (Id.) I have left a couple messages, but have never heard from her. (Id.) As of the date of this motion, Plaintiffs counsel has neither received responses to the outstanding discovery nor any response. (Id., ¶ 5.) The unopposed motion is granted. Defendant is ordered to provide responses, without objections, within 20 days from the date of notice of ruling. Sanctions Plaintiff Maria seeks sanctions against Defendant in the amount of $775.00 [calculated as follows: 1.10 hours preparing motion, plus .2 hour attending hearing at $550.00 /hour, plus $60.00 filing fees)]. Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorneys fees in connection with the pending motion is $450.00. The reasonable amount of time is 1 hour. Therefore, the total amount of sanctions awarded is $510.00. Sanctions are awarded and are payable within 20 days from the date of the notice of ruling. 2. Motion to Compel Re: Request for Production of Documents Legal Standard A response to a request for production of documents is due 30 days after service. (Code Civ. Proc., § 2031.260, subd. (a).) If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, . . . [t]he party making the demand may move for an order compelling response to the demand. (Code Civ. Proc., § 2031.300, subd. (b).) [T]he court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.300, subd. (c).) Discussion Plaintiff Maria moves the court for an order compelling Defendant to provide responses to the Request for Production of Documents. Plaintiff Maria also seeks sanctions against Defendant in the amount of $775.00. See synopsis of Motion #1. The unopposed motion is granted. Defendant is ordered to provide responses, without objections, within 20 days from the date of notice of ruling. Sanctions Plaintiff Maria seeks sanctions against Defendant in the amount of $775.00 [calculated as follows: 1.10 hours preparing motion, plus .2 hour attending hearing at $550.00 /hour, plus $60.00 filing fees)]. Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorneys fees in connection with the pending motion is $450.00. The reasonable amount of time is 1 hour. Therefore, the total amount of sanctions awarded is $510.00. Sanctions are awarded and are payable within 20 days from the date of the notice of ruling. 3. Motion to Compel Re: Special Interrogatories Legal Standard See Motion #1. Discussion Plaintiff Maria moves the court for an order compelling Defendant to provide verified responses, without objections, to Defendants Special Interrogatories (subject discovery). Plaintiff also seeks sanctions against Defendant in the amount of $775.00. See synopsis of Motion #1. The unopposed motion is granted. Defendant is ordered to provide responses, without objections, within 20 days from the date of notice of ruling. Sanctions Plaintiff Maria seeks sanctions against Defendant in the amount of $775.00 [calculated as follows: 1.10 hours preparing motion, plus .2 hour attending hearing at $550.00 /hour, plus $60.00 filing fees)]. Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorneys fees in connection with the pending motion is $450.00. The reasonable amount of time is 1 hour. Therefore, the total amount of sanctions awarded is $510.00. Sanctions are awarded and are payable within 20 days from the date of the notice of ruling. 4. Motion to Deem Requests for Admission Admitted Legal Standard A response to requests for admission is due 30 days after service. (Code Civ. Proc., § 2033.250, subd. (a).) If a party to whom requests for admission are directed fails to serve a timely response, . . .[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. . . (Code Civ. Proc., § 2033.280, subd. (b).) The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. . . (Code Civ. Proc., § 2033.280, subd. (c).) It is mandatory that the court impose a monetary sanction . . . on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion. (Code Civ. Proc., § 2033.280, subd. (c).) Discussion Plaintiff Maria moves the court for an order that the genuineness of any documents and the truth of any matters specified in the Requests for Admission (subject discovery) propounded to Defendant be deemed admitted pursuant to Code of Civil Procedure § 2033.280. Plaintiff Maria also seeks sanctions against Defendant in the amount of $775.00. See synopsis of Motion #1 The unopposed motion is granted. Pursuant to Code of Civil Procedure § 2033.280, subdivision (b), the court orders that the truth of the matters specified in the Requests for Admissions, Set No. One, propounded by Plaintiff Maria to Defendant deemed admitted. Sanctions Plaintiff Maria seeks sanctions against Defendant in the amount of $775.00 [calculated as follows: 1.10 hours preparing motion, plus .2 hour attending hearing at $550.00 /hour, plus $60.00 filing fees)]. Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorneys fees in connection with the pending motion is $450.00. The reasonable amount of time is 1 hour. Therefore, the total amount of sanctions awarded is $510.00. Sanctions are awarded, jointly and severally, and are payable within 20 days from the date of the notice of ruling. 5. Motion to Compel Deposition Legal Standard If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (a).) A motion under subdivision (a) shall comply with both of the following: (1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance& (Code Civ. Proc., § 2025.450, subd. (b).) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450, subd. (g)(1).) Discussion Plaintiff Maria moves the court for an order compelling the deposition of Defendant. Plaintiff also seeks sanctions against Defendant in the amount of $1,847.50. Plaintiff Marias counsel represents the following: On or about March 19, 2024, I served [a] Notice of Deposition and Request for Production of Documents for Defendant on her counsel. (Franco Decl., ¶ 2.) The deposition was scheduled for March 29, 2024, and the documents related to the subject property, which was owned by Defendant and Plaintiffs tenancy. (Id.) Defendants counsel stated he no longer represented Defendant. (Id., ¶ 3.) On or about March 19, 2025, I called Defendant at the number on the Substitution of Attorney. (Id., ¶ 3.) I wanted to confer on her availability. (Id.) I spoke with Defendant Sergio who stated that they were conferring with other attorney and someone would call me by March 25, 2024. (Id., ¶ 4.) On March 19, 2024, I served Defendant with a Notice of Deposition and Request for Production of Documents scheduling the deposition on April 3, 2023. (Id., ¶ 5.) On or about March 28, 2024, the Notice of Deposition I had served on Defendant [] was returned to me by the Postal Service as Refused and Unclaimed. (Id., ¶ 10.) On or about March 28, 2024, I served Defendant with the third Notice of Deposition and Request for Production of Records via regular U.S. Mail, setting the deposition for April 18, 2024. (Id., ¶ 12) On or about April 17, 2024, I called Defendant to confirm her attendance at her deposition scheduled for the following day. (Id., ¶ 15.) Defendant Sergio answered the telephone. (Id.) He informed me Defendant would not be appearing for deposition. (Id.) To date, Defendant has not responded to any of the correspondence I sent her, nor has she returned any of my telephone calls. (Id., ¶ 19.) The unopposed motion is granted. Plaintiff is ordered to be deposed within 30 days from the date of notice of ruling. Sanctions Plaintiff Maria seeks sanctions against Defendant Plaintiff in the amount of $1,847.50 [calculated as follows: 2.75 hours preparing motion, plus .5 hour attending hearing at $550.00 /hour, plus $60.00 filing fees)]. Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorneys fees in connection with the pending motion is $450.00. The reasonable amount of time is 1 hour. Therefore, the total amount of sanctions awarded is $510.00. Sanctions are awarded and are payable within 20 days from the date of the notice of ruling.

Ruling

SMK DIVERSIFIED INVESTMENTS, LLC VS ANNIE MAE, LLC

Aug 09, 2024 |24NNCV02744

Case Number: 24NNCV02744 Hearing Date: August 9, 2024 Dept: NCB Superior Court of California County of Los Angeles North Central District Department B smk diversified investments llc, Plaintiff, v. annie mae, llc, Defendant. Case No.: 24NNCV02744 Hearing Date: August 9, 2024 [TENTATIVE] order RE: motion to quash service of summons and complaint BACKGROUND A. Allegations On July 8, 2024, Plaintiff SMK Diversified Investments LLC (Plaintiff) filed an unlawful detainer complaint against Defendant Annie Mae, LLC regarding the property located at 9074 De Garmo Ave, Unit C, Sun Valley, CA 91352. Plaintiff is alleged to be the owner of the premises. Plaintiff alleges that on September 1, 2023, it entered into a written Commercial Lease Agreement with Defendant. (Compl., Ex. 1.) Plaintiff alleges that Defendant was served with a 3-day notice to pay rent or quit on April 27, 2024 and the period for Defendant to comply expired on April 27, 2024. Plaintiff seeks possession of the premises, costs incurred in this proceeding, past due rent of $39,000, reasonable attorneys fees, and forfeiture of the agreement. B. Motion on Calendar On July 26, 2024, Defendant filed a motion to quash service of the summons and complaint. The Court is not in receipt of an opposition brief. DISCUSSION Defendant moves to quash Plaintiffs service of the summons and complaint. Defendant argues that service was not properly effectuated on its agent for service of process, Eric E. Hughes. The proof of service of the summons and complaint (filed July 15, 2024) states that Defendant was served by substituted service on July 12, 2024 at 11:06 a.m. by leaving the documents with Domineque McCall (front desk security) at Defendants place of business located at 9074 De Garmo Ave C, Los Angeles, CA 91352. The authorized agent for service of process is identified as Eric E. Hughes. The documents were thereafter mailed on July 12, 2024 to Defendant through Eric Hughes at the aforementioned address. Service was effectuated by Pablo Lopez, a registered process server. Defendant provides a copy of the Statement of Information of Defendant filed with the State of California, Secretary of State on December 12, 2023, which shows that Mr. Hughes address for service of process is located at 27847 Conestoga Dr., Rolling Hills Est., CA 90274. (Mot., Ex. B.) In contrast, as summarized above, the process server served Defendant at 9074 De Garmo Ave C by leaving the documents with a front desk security guard. Here, service was not properly effectuated on Defendant by serving its authorized agent for service of process. The motion to quash service of the summons and complaint is granted. CONCLUSION AND ORDER Defendant Annie Mae, LLCs motion to quash service of the summons and complaint is granted. Defendant shall provide notice of this order. DATED: August 9, 2024 ___________________________ John J. Kralik Judge of the Superior Court

Ruling

GGP NORTHRIDGE FASHION CENTER, LP, A DELAWARE LIMITED PARTNERSHIP VS SHAMDAN RESTAURANT, INC. A CALIFORNIA CORPORATION, ET AL.

Aug 06, 2024 |21CHCV00956

Case Number: 21CHCV00956 Hearing Date: August 6, 2024 Dept: F47 Dept. F47 Date: 8/6/24 Case #21CHCV00956 MOTION FOR ATTORNEY FEES Motion filed on 3/19/24. MOVING PARTY: Plaintiff GGP Northridge Fashion Center, LP RESPONDING PARTY: Defendants Alibaba Express Mediterranean Grill, Inc.; Shamdan Restaurant, Inc.; Ali Mirghaffari and Yana Mirghaffari NOTICE: ok RELIEF REQUESTED: An order awarding and fixing costs and attorneys fees in for Plaintiff in this action pursuant to Civil Code 1717 and CCP 1032. RULING: The motion is granted. SUMMARY OF FACTS & PROCEDURAL HISTORY This action arises out of a commercial lease agreement and guaranty between Plaintiff GPP Northridge Fashion Center, LP (Plaintiff) and Defendants Shamdan Restaurant, Inc. (Shamdan), Ali Mirghaffari (Ali), Yana Mirghaffari (Yana) and Alibaba Express Mediterranean Grill, Inc. (Alibaba). Alibaba was the tenant under the subject lease. Shamdan, Ali and Yana were guarantors of the subject lease. Plaintiff filed this action on 12/14/21 against the guarantors only and filed a separate unlawful detainer action against Alibaba. In February 2022, Alibaba vacated the premises. Therefore, Plaintiff moved to amend the complaint in this action resulting in the First Amended Complaint which alleged causes of action against Defendants, tenant and guarantors, for: (1) Breach of Guaranty and (2) Breach of Lease. The guarantors and the tenant each filed cross-complaints which were ultimately dismissed after being challenged by demurrer and motion for judgment on the pleadings. After a two-day court trial, on 2/6/24, judgment was entered in favor of Plaintiff and against Defendants, jointly and severally, in the amount of $612,608.74. (See 2/6/24 Judgment). The judgment provides that Plaintiff may have costs and attorneys fees by post-judgment application and motion, as appropriate. Id. On 3/19/24, Plaintiff filed and served the instant motion seeking an order awarding and fixing costs and attorneys fees in for Plaintiff in this action pursuant to Civil Code 1717 and CCP 1032. Defendants have not opposed or otherwise responded to the motion. ANALYSIS Generally, prevailing parties in an action are entitled to recover their costs. See CCP 1032(a)(4), (b). A prevailing party may recover attorney fees when authorized by contract, statute or law. CCP 1033.5(a)(10). Additionally, Civil Code 1717 provides, in relevant part: (a) In any action on a contract, where the contract specifically provides that attorneys fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorneys fees in addition to other costs. Where a contract provides for attorneys fees, as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract. Reasonable attorneys fees shall be fixed by the court, and shall be an element of the costs of suit. * * * (b) (1) The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section. As noted above, Plaintiff is the prevailing party in this action as judgment was entered in its favor. (See 2/6/24 Judgment); CCP 1032(a)(4). Additionally, the lease and guaranty on which this action was based provide for the recovery of attorneys fees by the prevailing party. (See Byrne Decl., Ex.C, Article 28; Ex.D). Based on the lodestar method of calculation (reasonable number of hours expended multiplied by the reasonable hourly rate), Plaintiff has established that it reasonably incurred $82,103.00 in attorney fees in obtaining the judgment against Defendants in this action. (See Byrne Decl., Ex.F); PLCM Group (2000) 22 C4th 1084, 1095-1096. CONCLUSION The motion is granted. Plaintiff GGP Northridge Fashion Center, LP is awarded $82,103.00 in attorneys fees against Defendants Alibaba Express Mediterranean Grill, Inc.; Shamdan Restaurant, Inc.; Ali Mirghaffari and Yana Mirghaffari.

Ruling

NAOMI BURKS VS PETER COELER, DBA P.A.C. PROPERTIES

Aug 09, 2024 |24NNCV00873

Case Number: 24NNCV00873 Hearing Date: August 9, 2024 Dept: NCB Superior Court of California County of Los Angeles North Central District Department B naomi burks, Plaintiff, v. peter coeler dba p.a.c. properties, Defendant. Case No.: 24NNCV00873 Hearing Date: August 9, 2024 [TENTATIVE] order RE: demurrer; motion to strike BACKGROUND A. Allegations Plaintiff Naomi Burks (in pro per, Plaintiff) alleges that she rented an apartment at 12255 Burbank Blvd., Unit 103 in Valley Village from Defendant Peter Coeler dba P.A.C Properties (Defendant). Plaintiff alleges that Defendant owns and manages the subject apartment building. Plaintiff alleges that on March 18, 2022, she signed a one-year lease agreement to rent the subject unit from Defendant. Plaintiff alleges that prior to signing the lease, she raised concerns about 10 terms in the lease, including the bed bug addendum. She alleges that Defendants leasing manager stated that the language was standard in leases and that she should not be concerned. Plaintiff alleges that after she moved in, on April 14, 2022, she began seeing roaches in her apartment. She notified Defendant no fewer than 6 separate times, and Defendant ignored her notifications. On May 13, 2022, Defendant had a pest control agent treat the subject apartment, but Plaintiff alleges she continued to see roaches and notified Defendant on May 22, 2022 and July 28, 2022. In response to her complaints of roaches and gnats coming through a large gap between the wall and air conditioning unit, Defendant sent someone to seal the gap around her air conditioning unit, but ignored the roach problem. Plaintiff alleges that although Defendant sent pest control agents, none of the treatments were effective. She alleges that Defendant sent another agent on September 14, 2022, but the treatment was ineffective. Plaintiff alleges that Defendant sent an offer on October 10, 2022 to allow Plaintiff to break her lease without penalty or transfer to another available unit and on November 5, 2022, she notified Defendant that she would be breaking the lease and moving out. The complaint, filed on April 9, 2024, alleges causes of action for: (1) negligence breach of duty to provide and maintain a habitable dwelling; (2) nuisance; (3) fraud by suppression; and (4) NIED. On May 28, 2024, Plaintiff dismissed with prejudice the 4th cause of action for NIED as to all Defendants. B. Motion on Calendar On June 27, 2024, Defendant filed a demurrer and motion to strike portions of the complaint. On July 23, 2024, Plaintiff filed opposition briefs. On August 2, 2024, Defendant file reply briefs. DISCUSSION RE DEMURRER Defendant demurs to the 2nd and 3rd causes of action in the complaint. A. 2nd cause of action for nuisance The elements for a private nuisance claim are: (1) interference with the plaintiffs use and enjoyment of his property; (2) the invasion of the plaintiffs interests in the use and enjoyment of the land must be substantial (i.e., causes the plaintiff to suffer substantial actual damages); (3) the interference with the protected interest must not only be substantial, but must also be unreasonable (i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land). (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262263.) Unlike public nuisance (which is an interference with the rights of the community at large), private nuisance is a civil wrong based on disturbance of rights in land whereby the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land; however, this injury need not be different in kind from that suffered by the general public. (Id. at 262.) In the 2nd cause of action, Plaintiff alleges that when Defendant rented Plaintiff the apartment infested with roaches, and subsequently failed to remedy the infestation and ignored her multiple complaints, Defendant created and/or maintained an actionable nuisance. (Compl., ¶38.) She alleges that Defendant had a pattern of business of only spot-treating the known roach infestation, blaming the tenant for the infestation, and re-renting infested units to other unsuspecting tenants for higher rent. (Id., ¶39.) Plaintiff alleges that Defendant knew about the infestation prior to renting the unit to Plaintiff, which was despicable and carried out with a willful and conscious disregard for her rights and safety. (Id., ¶40.) Plaintiff alleges that she suffered skin irritations/rashes, the unit was indecent and offensive to the senses, and the infestation and ineffective treatment substantially obstructed her free use of the apartment and interfered with her enjoyment. (Id., ¶43.) Defendant argues that Plaintiff has only alleged legal conclusions in paragraphs 1-38 of her complaint, has not alleged how Defendant created a nuisance in the form of the roach infestation, and has not alleged that Defendant acted intentionally, unreasonably, negligently, or recklessly by continuing to hire pest control agents to handle the situation. Taking the allegations of the complaint as true, the Court finds that Plaintiff has alleged sufficient facts for a private nuisance cause of action. Plaintiff has alleged facts that Defendant created and/or maintained the nuisance condition with respect to the roaches by failing to treat and remedy the issue. She has alleged facts that her interests in the use and enjoyment of her unit were invaded and that she sustained damages in the form of skin irritations/rashes and inability to use her apartment. The allegations at the pleading stage are sufficient to provide notice to Defendant regarding the nuisance claim. Defendant also argues that the 2nd cause of action is also duplicative of the 1st cause of action for negligence breach of duty to provide and maintain a habitable dwelling. Each cause of action has distinct elements. The Court will allow both to proceed at this time and will not prematurely strike the 2nd cause of action, though the number of causes of action may be re-evaluated at the time of jury selection. As such, the demurrer to the 2nd cause of action is overruled. B. 3rd cause of action for fraud To allege a cause of action for fraud, the requisite elements are: (1) a representation, usually of fact, which is false; (2) knowledge of its falsity; (3) intent to defraud; (4) justifiable reliance upon the misrepresentation; and (5) damage resulting from that justifiable reliance. (Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 72-73.) This cause of action is a tort of deceit and the facts constituting each element must be alleged with particularity; the claim cannot be saved by referring to the policy favoring liberal construction of pleadings. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Since the claim must be pleaded with particularity, the cause of action based on misrepresentations must allege facts showing how, when, where, to whom, and by what means the misrepresentations were tendered. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) In the 3rd cause of action, Plaintiff alleges that Defendants leasing managers statement regarding the lack of a bed bug infestation while failing to mention a known roach infestation, constituted fraudulent deceit. (Compl., ¶45.) Plaintiff alleges that Defendant was aware of an ongoing roach issue, which was material to the units habitability, but failed to disclose the roach infestation in order to profit by Plaintiffs signing of the lease. (Id., ¶46.) Plaintiff alleges that she reasonably relied on the managers misleading representation, and she would not have leased the unit had she known about the roach infestation. (Id.) Defendant argues that Plaintiff has not alleged any facts regarding a misrepresentation about a roach infestation. Based on the allegations of the complaint, Plaintiff has not alleged facts showing that Defendant, through its agents, made representations about whether there was a roach infestation. At most, the complaint alleges that Plaintiff raised 10 (unidentified) issues with Defendants leasing department and that she had asked Defendants leasing manager about a bed bug addendum. (Compl., ¶¶11-12.) She alleges that the manager assured her not to worry about the bed bug addendum as there were no indications of a bed bug infestation, which induced her to sign the lease. (Id., ¶¶12-14.) While she asked questions about the bed bug addendum, she did not ask any questions about, nor hear representations regarding, a roach infestation from Defendant or its agents. Plaintiff has not alleged specific facts regarding misrepresentations (or concealments) regarding any roach infestation. As such, the demurrer to the 3rd cause of action is sustained with leave to amend. DISCUSSION RE MOTION TO STRIKE Defendant moves to strike paragraphs 12, 13, 14, 21, 40, 41, 42, 45, 46 (at page 11, lines 12-16), 47, and 48, and the prayer for damages at Item 3. Defendant moves to strike Plaintiffs request for punitive damages and related allegations. A complaint including a request for punitive damages must include allegations showing that the plaintiff is entitled to an award of punitive damages. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) A claim for punitive damages cannot be pleaded generally and allegations that a defendant acted "with oppression, fraud and malice" toward plaintiff are insufficient legal conclusions to show that the plaintiff is entitled to an award of punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) Specific factual allegations are required to support a claim for punitive damages. (Id.) Civil Code § 3294 authorizes a plaintiff to obtain an award of punitive damages when there is clear and convincing evidence that the defendant engaged in malice, oppression, or fraud. Section 3294(c) defines the terms in the following manner: (1) "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) "Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. Further, when the punitive damages are sought against an employer, Civil Code § 3294(b) requires the plaintiff to establish the following: (1) the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized, (2) the employer ratified the wrongful conduct for which the damages are awarded, or (3) the employer was personally guilty of oppression, fraud, or malice. The Court has reviewed the allegations of the complaint. The allegations for punitive damages are currently lacking the particularity required to request such damages. Plaintiff alleges in a conclusory fashion that Defendant knew of the roach infestation such that its conduct was despicable and carried out with willful and conscious disregard for others rights and safety. However, the allegations also show that when Plaintiff notified Defendant of the issues, Defendant responded by having pest control agents spray her unit on multiple occasions and even offered to allow her to break her lease without penalty or transfer units. While there may have been a roach infestation during Plaintiffs residency at the subject unit, the allegations show that Defendant did not ignore her requests and instead Defendant attempted to remedy the situation or provide her alternatives. Next, Plaintiff has not alleged facts against Defendants agents and whether Defendant ratified its agents (alleged) wrongful conduct. As such, the motion to strike the allegations for punitive damages is granted. Plaintiff may move at a later date to amend the complaint to allege further facts, if such facts appear and are sufficient to establish a right to punitive damages. CONCLUSION AND ORDER Defendant Peter Coeler dba P.A.C Properties demurrer to the 2nd cause of action is overruled. The demurrer to the 3rd cause of action is sustained with 20 days leave to amend. Defendant Peter Coeler dba P.A.C Properties motion to strike is granted without leave to amend. Defendant shall provide notice of this order. DATED: August 9, 2024 ___________________________ John Kralik Judge of the Superior Court

Ruling

686-WOPG, A CALIFORNIA LIMITED LIABILITY COMPANY VS DANIEL RODRIGUEZ, ET AL.

Aug 07, 2024 |23STCV12624

Case Number: 23STCV12624 Hearing Date: August 7, 2024 Dept: 73 08/07/24 Dept. 73 Hon. Rolf Treu, Judge presiding 686-WOPG, LLC v. RODRIGUEZ, et al. (23STCV12624) Counsel for Plaintiff/opposing party: Randy Chang (The Chang Firm) Counsel for Defendants/moving party: Brian Wagner (Kutak Rock LLP) demurrer TO SECOND AMENDED complaint (filed 6/27/24) TENTATIVE RULING Defendants demurrer to Plaintiffs causes of action against Defendant Ahn is OVERRULED. Defendants demurrer to Plaintiffs sixth, eighth, and ninth causes of action is SUSTAINED without leave to amend. I. BACKGROUND On June 2, 2023, 686-WOPG, LLC (686-WOPG) filed a breach of contract action against Daniel Rodriguez, individually and as a dba of Pablitos Tacos, and Transcendent Development Group, Inc. (Transcendent). On July 13, 2023, Transcendent filed a Complaint against 686-WOPG and David Ahn (Ahn). On February 5, 2024, the Court found both cases are related and consolidated the cases. On February 28, 2024, the Court sustained the Demurrer of Ahn and 686-WOPG to all causes of action in Transcendents Complaint. On May 15, 2024, the Court sustained in part and overruled in part the Demurrer of Ahn and 686-WOPG to Transcendents FAC. On June 5, 2024, Transcendent filed a Second Amended Complaint (SAC) alleging the following causes of action: C/A 1: Forceable Entry C/A 2: Forceable Detainer C/A 3: Trespass C/A 4: Conversion of Tangible Personal Property C/A 5: Breach of Written Lease Contract C/A 6: Breach of Implied Covenant of Good Faith and Fair Dealing C/A 7: Quiet Enjoyment C/A 8: Interference with Prospective Economic Advantage C/A 9: Unfair Business Practices The SAC alleges the following. In or around July 27, 2021, Plaintiff and Defendant 686-WOPG entered into a written lease agreement for a term of 10 years for the premises located at 686 Spring Street, suite 104, Los Angeles, California. (SAC, ¶ 2.) Defendant, 686-WOPG is a California Limited Liability Company consisting of a single member LLC, fully controlled by Defendant Ahn. (SAC, ¶ 4.) On or about April 14, 2023, Defendants changed the door locks, gate locks, security entry codes, etc. for entry into the aforesaid premises all without permission or consent by Plaintiff. (SAC, ¶ 1.) On April 18, 2024, Defendants Ahn and 686-WOPG (collectively Defendants) filed the instant demurrer, arguing: · All of Plaintiffs causes of action against Defendant Ahn fail because the FAC does not plead an alter ego relationship sufficient to state a claim against him. · Plaintiffs Sixth Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing Fails as it is Duplicative of the Breach of Contract Claim · Plaintiffs Eighth Cause of Action for Interference with Prospective Economic Advantage - Negligent Fails for Lack of Sufficient Facts · Plaintiffs Ninth Cause of Action for Unfair Business Practices (California Business & Professions Code § 17200) Fails for Lack of Sufficient Facts Plaintiff filed an opposition, arguing that the SAC sufficiently sets forth facts to constitute a cause of action. Defendants filed a reply maintaining that Plaintiff failed to plead facts to constitute each of its causes of action. II. ANALYSIS A. Meet and Confer Requirement Before filing a demurrer pursuant to this chapter, the demurring 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, subd. (a).) Here, counsel for Defendants submitted a declaration stating she called Plaintiffs counsel to meet and confer regarding the instant motion, but Plaintiffs counsel did not answer or return her call. (Andrews Decl., ¶¶ 2-8.) While the parties did not meet and confer in person or by telephone, the failure to meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., §§ 430.41, subd. (a)(4); 435.5 subd. (a)(4).) Thus, the Court proceeds on the merits. B. Request for Judicial Notice Defendants request judicial notice of the Statement of Information filed July 25, 2023, in the State of California Office of the Secretary of State, File No. BA20231166163. The court may take judicial notice of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States, [r]ecords 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, and [f]acts 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. (Evid. Code § 452, subds. (c), (d), and (h).) The Court grants Defendants request. However, the Court notes that while the Court may take judicial notice of the document, the Court may not take judicial notice of the truth of its contents. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) C. Legal Standard for Demurrer A demurrer tests the sufficiency of whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in contextany defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleading alone, and not the evidence or facts alleged. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaints properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn, supra, 147 Cal.App.4th at p. 747.) D. All Causes of Action against Defendant Ahn Defendant Ahn demurs to the entire SAC on the grounds that it fails to plead an alter ego relationship sufficient to state a claim against him. In Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 235-36, the Court of Appeal held the following was sufficient to allege alter ego liability: Rutherford alleged that Caswell dominated and controlled PDR; that a unity of interest and ownership existed between Caswell and PDR; that PDR was a mere shell and conduit for Caswell's affairs; that PDR was inadequately capitalized; that PDR failed to abide by the formalities of corporate existence; that Caswell used PDR assets as her own; and that recognizing the separate existence of PDR would promote injustice. These allegations mirror those held to pass muster in First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910, 915916, 73 Cal.Rptr. 657. As in First Western, [a]ssuming these facts can be proved, [Caswell] ... may be held liable ... under the alter ego principle. (Id. at p. 916, 73 Cal.Rptr. 657.) Defendants argue that Rutherford failed to allege specific facts to support an alter ego theory, but Rutherford was required to allege only ultimate rather than evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, 67 Cal.Rptr.3d 330, 169 P.3d 559.) Moreover, the less particularity [of pleading] is required where the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by the plaintiff, which certainly is the case here. (Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 474, 20 Cal.Rptr. 609, 370 P.2d 313.) Therefore, we affirm the trial court's ruling that Rutherford sufficiently pled an alter ego theory of liability. Plaintiff amended its SAC to include allegations that Defendant 686-WOPG, LLC was the alter ego of Ahn, stating: Defendant Anh (1) controlled the business and affairs of Defendant 686-WOPG, LLC; (2) commingled the funds and assets of the corporate entities, and diverted corporate funds and assets for his own personal use; (3) disregarded legal formalities and failed to maintain arms length relationships among the corporate entities; (4) inadequately capitalized Defendant 686-WOPG, LLC; (5) held himself out as personally liable for the debts of the corporate entities; (6) used the corporate entities as a mere shells, instrumentalities or conduits for himself and/or his individual businesses; (7) used the corporate entities to procure labor, services or merchandise for another person or entities; (8) manipulated the assets and liabilities between the corporate entities so as to concentrate the assets in one and the liabilities in another; (9) used corporate entities to conceal their ownership, management and financial interests and/or personal business activities; and/or (10) used the corporate entities to shield against personal obligations, and in particular the obligations as alleged in this Complaint. Defendant 686-WOPG, LLC was not only influenced and governed by Defendant Anh, but there was such a unity of interest and ownership that the individuality, or separateness, of Ahn and Defendant 686-WOPG, LLC has ceased, and that the facts are such that an adherence to the fiction of the separate existence of these entities would, under the particular circumstances, sanction a fraud or promote injustice. Plaintiff is informed and believes that at all relevant times mentioned herein, the acts of the business entities involved were performed by an employee, agent, officer, servant and/or representative of Ahn and Defendant 686-WOPG, LLC. (SAC, ¶¶ 20-22.) The Court finds these new allegations sufficient to plead alter ego liability as to Ahn at this time. As the Rutherford court stated, there is not a heightened pleading standard for alter ego theory; it is adequate for a plaintiff to allege ultimate rather than evidentiary facts and that less particularity [of pleading] is required where the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by the plaintiff, which certainly is the case when analyzing alter ego theory at the pleading stage. (Rutherford Holdings, supra, 223 Cal.App.4th at 236.) Accordingly, the SAC sufficiently establishes ultimate facts to support a reasonable inference of alter ego for pleading purposes. The evidentiary facts proving these allegations are not at issue at this time. As such, the Demurrer to Plaintiffs Second Amended Complaint against Defendant Ahn is OVERRULED. A. Sixth Cause of Action: Breach of Implied Covenant of Good Faith and Fair Dealing A breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself and it has been held that bad faith implies unfair dealing rather than mistaken judgment. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394.) If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated . . . . [T]he only justification for asserting a separate cause of action for breach of the implied covenant is to obtain a tort recovery. (Id. at 1394-95.) To recover in tort for breach of the implied covenant, the defendant must have acted unreasonably or without proper cause. (Id. at 1395, cleaned up.) Here, Plaintiff argues the gravamen of the breach of the implied covenant of good faith and fair dealing cause of action is not allegation of breach of any express contractual terms, but rather, Defendants efforts to undermine or prevent Plaintiff from doing business. Plaintiff added the following allegation: Invariably, this cause of action is premised on the action of the Defendant Anh and Defendant 686-WOPG, LLC refusal to allow Plaintiff to enter the leased premises on the date of the lockout. Even when demanded and confronted, Defendants refused to act in good faith. Instead initiate a false narrative that Plaintiff abandoned the leased premises when it was obvious that Plaintiff had not. (SAC, ¶ 49.) As the Court found in its previous order, Plaintiff has sufficiently alleged its breach of contract cause of action, specifically the existence of the lease, that Plaintiff has paid all rents and obligations, and that Defendants breached the lease by locking Plaintiff out of the premises. (SAC, ¶¶ 1-3.) However, as the Court noted in its previous orders sustaining Defendants demurrer to the Complaints breach of the implied covenant of good faith and fair dealing, this cause of action is subsumed within the fifth cause of action for breach of the lease. The Court again does not find any additional claim is actually stated as the allegations rely on the same alleged act of the breach of the lease. This implied covenant cause of action is not separately supported by any different facts or relief sought. Defendants demurrer to the SACs sixth cause of action is SUSTAINED. B. Eighth Cause of Action: Interference with Prospective Economic Advantage The elements of a claim for intentional interference with prospective economic advantage include (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 or negligent 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. (Crown Imports, LLC v. Superior Court (2014) 223 Cal.App.4th 1395, 1404, cleaned up.) Further, the alleged interference must have been wrongful by some measure beyond the fact of the interference itself. For an act to be sufficiently independently wrongful, it must be unlawful, that is, it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard. (Ibid., cleaned up.) The SAC states that because of the illegal lockout, Plaintiff could not fulfill their obligations to Uber, Grub Hub, Door Dash, Stripe, Hide the Llama, Hungary, The Voice and cater to the 2 Me. (SAC, ¶¶ 55-64.) In all of those relationships, Plaintiff had a reasonable expectation of economic benefit by virtue of supplying to those third parties prepared foods from Plaintiffs facilities at 686 Spring Street, Suite 104, Los Angeles, California. (Ibid.) On April 14, 2023, but for the illegal lockout, Plaintiff would have realized economic benefits from selling the food. (Ibid.) However, as the Court also found in its prior orders, the eighth cause of action is not sufficiently set forth. The cause of action is not adequately set forth with details of the arrangements, what happened, dates, what was impacted, how Defendants knew about Plaintiffs relationships with the third parties, etc. Plaintiffs allegations are still general and conclusory. Plaintiff fails to specify the economic benefit expected to be realized and whether this cause of action is different than damages flowing from the alleged breach of the lease. Defendants demurrer to the SACs eighth cause of action is SUSTAINED. C. Ninth Cause of Action: Unfair Business Practices To set forth a claim for a violation of Business and Professions Code section 17200 (UCL), Plaintiff must establish Defendant 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.) A cause of action for unfair competition is not an all-purpose substitute for a tort or contract action. (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.) Here, the SAC alleges that in illegally locking out Plaintiff, Defendants have engaged in unfair and/or unlawful business practices and have thereby acquired money or property rightfully belonging to Plaintiff by engaging in such unfair business practices. (SAC, ¶¶ 65-71.) The SAC alleges When Defendants illegally locked out Plaintiff on April 14, 2023, its conduct was unlawful and prohibited by law. The action is tortious in nature and not just mere breach of contract. (SAC, ¶ 68.) The Court does not find these allegations adequately set forth a cause of action for violation of section 17200. Plaintiff alleges a breach of contract and as the Court stated in its previous orders sustaining this cause of action, it is unclear what this cause of action adds to the dispute. Plaintiff fails to sufficiently allege unfair, deceptive, or unlawful practice with the requisite particularity. Plaintiff also fails to allege a violation of any particular statute. Based on the foregoing, Defendants demurrer to the SACs ninth cause of action is SUSTAINED. D. Leave to Amend Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, [i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). 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.) Here, Plaintiff has had multiple chances to state a valid claim for its sixth, eighth and ninth causes of action. Plaintiff did not materially amend its allegations as to these causes of action in the SAC. In the opposition, Plaintiff does not show how these causes of action can be successfully amended to state a valid cause of action. Therefore, the Court does not grant leave to amend. III. DISPOSITION Defendants demurrer to Plaintiffs causes of action against Defendant Ahn is OVERRULED. Defendants demurrer to Plaintiffs sixth, eighth, and ninth causes of action is SUSTAINED without leave to amend.

Ruling

WRIGHT WALNUT OWNER, LLC, A DELAWARE LIMITED LIABILITY COMPANY VS BLACKSERIES CAMPERS, INC., A CALIFORNIA CORPORATION, ET AL.

Aug 13, 2024 |Shannon M Gerhart |24PSCV00398

Case Number: 24PSCV00398 Hearing Date: August 13, 2024 Dept: H Plaintiff Wright Walnut Owner, LLCs Motion to Strike Defendant Blackseries Campers, Inc.s Answer and to Enter Default and Default Judgment is GRANTED in part, in that the Court orders Blackseries Campers, Inc.s answer stricken and its default entered. The Court sets an Order to Show Cause Re: Default Judgment for October 14, 2024. Background Plaintiff Wright Walnut Owner, LLC (Plaintiff) alleges as follows: Plaintiff owns the building located at 19501 East Walnut Drive South in the City of Industry (the premises). On May 24, 2018, Plaintiffs predecessor-in-interest, Jeunique Industrial Park, LLC, as landlord, and Blackseries Campers, Inc. (Blackseries), as tenant, entered into a written commercial lease agreement (the Lease) for the premises for a term of 87 months (i.e., from November 1, 2018 to February 28, 2026). Hongwei Qiu (Qiu) executed and delivered a written Guaranty of Lease on that date. The Lease was subsequently amended on December 15, 2019 and June 2, 2020. Blackseries and Qiu have failed (1) to maintain and repair the concrete on the premises, (2) to keep fire hydrants on the premises clear from trailers and trash, and (3) to make the required rental payments. On February 7, 2024, Plaintiff filed a complaint, asserting causes of action against Blackseries, Qui and Does 1-10 for (1) breach of written lease; (2) temporary restraining order, preliminary and permanent injunction; (3) declaratory relief; and (4) breach of written lease guaranty. Plaintiff has filed a motion for an order striking Blackseries answer and entering default and default judgment against Blackseries because Blackseries is not represented by counsel. The hearing on Plaintiffs motion is scheduled for August 13, 2023the same date as the Case Management Conference. Legal Standard [A] corporation . . . cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145; Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898 [A corporation . . . is an artificial entity created by law and as such it can neither practice law nor appear or act in person. . . A corporation cannot appear in court by an officer who is not an attorney and it cannot appear in propria persona].) The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436). Discussion Plaintiff contends that Blackseries answer should be stricken and that default should be entered because Blackseries is not represented by counsel. In support of Plaintiffs motion, Plaintiff has attached two exhibits(1) a Certificate of Status from the California Secretary of State dated June 13, 2024 that confirms Blackseries active corporate status in California and (2) the Courts June 5, 2024 order granting Blackseries prior counsels motion to be relieved as counsel in this case. (Brown Decl., ¶¶ 2-3, Exhs. A-B.) The Court takes judicial notice of both exhibits. Following the Courts order granting Blackseries attorneys motion to be relieved as counsel, on June 7, 2024, Blackseries former counsel filed a Proof of Service Re Order Granting Motions to be Relieved s Counsel, reflecting that Blackseries was served, via mail and e-mail, with the Order on that date. As a corporation, Blackseries cannot appear in court absent counsel. (Brown Decl., ¶ 2, Exh. A; Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898.) While Blackseries has had ample time to procure substitute counsel, court records do not reflect that any substitution of attorney for Blackseries has been filed as of this date. Accordingly, Plaintiffs motion is granted in part, in that the Court orders that Blackseries answer be stricken and that default be entered against Blackseries. The Court sets an Order to Show Cause Re: Default Judgment for October 14, 2024, at 8:30 a.m., in Department H. Plaintiff is directed to file a default judgment packet for the Courts review on or before that date.

Ruling

MORTGAGE ASSETS MANAGEMENT, LLC VS PEOPLES FEDERAL SAVINGS AND LOAN ASSOCIATION, A CORPORATION, ET AL.

Aug 13, 2024 |24CMCV00181

Case Number: 24CMCV00181 Hearing Date: August 13, 2024 Dept: A 24CMCV00181 Mortgage Assets Management, LLC v. Peoples Federal Savings and Loan Association Tuesday, August 13, 2024, at 8:30 a.m. [TENTATIVE] ORDER GRANTING PLAINTIFFS MOTION TO SUBSTITUTE PARTY PLAINTIFF The complaint alleges that Plaintiff holds a 2006 deed of trust encumbering real property to secure a reverse mortgage obtained by the homeowner. Through a series of assignments, Plaintiff is the current beneficiary of that trust deed. Plaintiff determined through a title report that Defendant holds a deed of trust that is superior to Plaintiffs that should have been released after multiple refinances, but was never reconveyed. Plaintiff alleges claims for declaratory relief and cancellation of instrument. The clerk entered default against Defendant on July 30, 2024. Plaintiff seeks an order to substitute PHH Mortgage Corporation (PHH) in place of Plaintiff because the beneficial interest in the 2006 deed of trust at issue has been assigned to PHH. (Code Civ. Proc., § 368.5 ["An action or proceeding does not abate by the transfer of an interest in the action or proceeding or by any other transfer of an interest. The action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding."].) Plaintiff submits an assignment of deed of trust recorded on April 28, 2024, establishing that Plaintiff assigned the deed of trust at issue to PHH. (Charles Correia Decl., Ex. A.) Based on the foregoing, Plaintiffs motion is GRANTED. This action shall be continued in the name of PHH Mortgage Corporation as Plaintiff.

Ruling

KRISTEN MICHELLE LEE JOSEPH VS ANTHONY HOLGUIN, ET AL.

Aug 07, 2024 |23NWCV03216

Case Number: 23NWCV03216 Hearing Date: August 7, 2024 Dept: C JOSEPH v. HOLGUIN, et al. CASE NO.: 23NWCV03216 HEARING: 8/7/24 @ 10:30 A.M. #9 TENTATIVE RULING Defendants motion to strike is GRANTED in part and DENIED in part. Moving party to give notice. This motion is unopposed as of August 5, 2024. On September 19, 2023, Defendant Anthony Holguin prevailed in an unlawful detainer action against Plaintiff Kristen Michelle Lee Joseph regarding possession of the premises located at 5434 Premiere Avenue, Lakewood, California 90712. Plaintiff sues defendants Anthony Holguin, Claudia Holguin, and Louis Corrado for the following: (1) breach of contract; (2) breach of covenant of good faith and fair dealing; (3) breach of covenant of quiet enjoyment; (4) trespass; (5) nuisance; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; (8) negligence; (9) wrongful eviction; (10) constructive eviction; (11) uncured building violations; (12) fraud; and (13) malicious prosecution regarding her possession of the premises located at 5434 Premiere Avenue, Lakewood, California 90712. Defendants move to strike the wrongful eviction, malicious prosecution, fraud, perjury, and failure to notice and improper service causes of action pursuant to Code of Civil Procedure section 425.16. They also move to strike the second to last paragraph on page 6; last paragraph on page 6; the last paragraph on page 8; and the retaliatory unlawful detainer action and lawsuit on page 10. Requests for Judicial Notice Defendants request judicial notice of the following: (1) complaint in case number 23NWCV03216; (2) complaint in case number 23NWUD00203; (3) September 19, 2023, minute order in case number 23NWUD00203; (4) notice of entry of judgment filed September 19, 2023 in case number 23NWUD00203; and (5) judgment in unlawful detainer filed on September 19, 2023 in case number 23NWUD00203. A court may take judicial notice that certain documents were filed in prior litigation, or that certain factual findings were made, but generally may not take judicial notice of the contents of those filings, or of the factual findings themselves. (See, e.g., Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal. App.4th 471, 483-484.) Thus, the Court grants the requests. Timeliness Code of Civil Procedure section 425.16 provides that a special motion to strike may be filed within 60 days of the service of the complaint, or, in the Courts discretion, at any later time upon terms it deems proper. Here, the motion was filed on October 30, 2023, while the complaint was filed on October 10, 2023. Thus, Defendants are timely. Defendants Burden of Proof The moving party bears the initial burden of showing that the action falls within the class of suits subject to the special motion to strike. (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) A defendant may meet this burden by showing that the act which forms the basis for the plaintiffs suit was (1) any written or oral statement made before a legislative, executive or judicial proceeding; (2) a statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body or any other official proceeding authorized by law; (3) any written or oral statement made in a place open to the public or a public forum in connection with an issue of public interest; or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with an issue of public interest. (Code Civ. Proc., § 425.16, subd. (e); Equilon Enterprises, supra, 29 Cal.4th at 66.) Whether the anti-SLAPP statute applies is determined by the principal thrust or gravamen of Plaintiffs claim. It cannot be invoked where allegations of protected activity are only incidental to a cause of action based on nonprotected activity. (Martinez v. Metabolife Intl, Inc. (2003) 113 Cal.App.4th 181, 187.) Here, Defendants argue that all aspects of an unlawful detainer action arise from the right to petition and are therefore subject to the anti-SLAPP statute. (Mot., pg. 9.) Defendants also argue that the malicious prosecution action predicates on the service of notice and institution of the unlawful detainer action. (Mot., pg. 11.) The Court agrees. (Birkner v. Lam (2007) 156 Cal.App.4th 275, 282; Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735.) A landlords service of notice to terminate tenancy of tenants is an act in furtherance of the landlords free speech or petitioning rights under Code of Civil Procedure section 425.16. (Birkner v. Lam, supra, 156 Cal.App.4th at pg. 282.) An action for malicious prosecution based on a partys statements or writings in an earlier judicial proceeding is subject to being stricken as a SLAPP suit. (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at pgs. 734-735.) The Court determines that Defendants have made a prima facie showing that the wrongful eviction, malicious prosecution, fraud, perjury, and failure to notice and improper service causes of action arise from the right to petition. Defendants also do not argue why the other portions of the complaint should be stricken. A judge in a civil case is not "'obligated to seek out theories [a party] might have advanced, or to articulate & that which & [a party] has left unspoken.'" (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686.) Plaintiffs Burden of Proof Plaintiff now has the burden of proof to establish a probability that he will prevail on whatever claims are asserted against Defendants. (Code Civ. Proc., § 425.16, subd. (b).) The plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment. (Premier Med. Mgmt. Systems, Inc. v. California Ins. Guar. Assn (2006) 136 Cal.App.4th 4464, 476.) Plaintiff has not opposed the motion. Thus, the motion to strike the wrongful eviction, malicious prosecution, fraud, perjury, and failure to notice and improper service causes of action is GRANTED. The motion to strike the second to last paragraph on page 6; last paragraph on page 6; the last paragraph on page 8; and the retaliatory unlawful detainer action and lawsuit on page 10 is DENIED. Request for Attorneys Fees As a prevailing defendant in this motion to strike, defendant is entitled to attorneys fees. (CCP § 425.16, subd. (c)(2).) Defendant requests attorneys fees in the amount of $3660.00. Because the motion is unopposed and non-complex compared to other anti-SLAPP motions, the Court awards attorneys fees in the amount of $1860.00.

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