SUMMONS + COMPLAINT - Redacted January 03, 2018 (2024)

Case

Dan Huang v. Babylon Town Of

Jul 31, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |808444/2024

Case

David Lee v. Islip Town Of

Jul 31, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |809087/2024

Case

Joseph Carroll v. Brookhaven Town Of

Jul 31, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |808832/2024

Case

Kimberly Vesey v. Brookhaven Town Of

Jul 31, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |808803/2024

Case

Sean Mccann v. Islip Town Of

Jul 31, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |809042/2024

Case

Edwin Pfeifer v. Brookhaven Town Of

Jul 31, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |808768/2024

Case

Riyaz Ahmed v. Babylon Town Of

Jul 31, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |808325/2024

Case

Edward Mcconnin v. Babylon Town Of

Jul 31, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |808456/2024

Case

Joseph Latino v. Islip Town Of

Jul 31, 2024 |Other Real Property - SCAR |Other Real Property - SCAR |809097/2024

Ruling

LUCY BROADBENT, ET AL. VS 3585 MULTIVIEW, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY

Aug 08, 2024 |23STCV11134

Case Number: 23STCV11134 Hearing Date: August 8, 2024 Dept: 37 HEARING DATE: Thursday, August 8, 2024 CASE NUMBER: 23STCV11134 CASE NAME: Lucy Broadbent, et al. v. 3585 Multiview, LLC, et al. MOVING PARTY: Defendants 3585 Multiview, LLC; Ruben Sangalang, and Virginia Kho Ting OPPOSING PARTY: Plaintiffs Lucy Broadbent, et al. TRIAL DATE: Not Set PROOF OF SERVICE: OK PROCEEDING: Demurrer with Motion to Strike First Amended Complaint OPPOSITION: 30 July 2024 REPLY: None filed. TENTATIVE: Defendants demurrer to the FAC is overruled in its entirety. Defendants motion to strike is denied. Defendants must file an Answer by August 19, 2024. The Court schedules an OSC Re: Filing of Answer August 28, 2024, and continues the CMC to the same date and time. Defendants to give notice. Background On May 17, 2023, Lucy Broadbent; David Norland; Steven, Shirley, and Eriq Quat; Julia Ganis; Scott Leslie; Denise and Jeff Turzo; Pouri Fox and Brandon Fox, and Anthony Ivanich (collectively Plaintiffs) filed a Complaint against 3585 Multiview, LLC (Defendant) and Does 1 to 50. Plaintiffs allege that Defendants construction efforts in an upslope property caused mudslides and damages to Plaintiffs respective properties. The Complaint alleges three causes of action: (1) Negligence, (2) Nuisance, and (3) Trespass. On July 20, 2023, Defendant filed a demurrer to the Plaintiffs Complaint. On October 31, 2023, the court overruled the demurrer in its entirety. On March 28, 2024, Plaintiffs filed the operative First Amended Complaint (FAC) alleging the same three causes of action and adding Defendants Ruben Sangalang and Virginia Kho Ting Casabar to this action. Defendants now demurrer to the FAC and move to strike the FAC. Plaintiffs oppose the motions. The matter is now before the court. Demurrer[1] I. Legal Standard A. Demurrer A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiffs proof need not be alleged.¿(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) ¿For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿A demurrer does not admit contentions, deductions or conclusions of fact or law.¿(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿ B. Motion to Strike ¿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); CRC, 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].)¿¿¿¿ C. Leave to Amend Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿ II. Discussion Defendants demur to the first, second, and third causes of action on the basis that Defendants actions did not cause the landslide, hence Plaintiffs claims for negligence, nuisance, and trespass fail. In support of their contention that Defendants are not responsible for the mudslide/landslide, Defendants attach the Declarations of Ricky Dela Cruz and Theida Salazar. Instead of challenging the sufficiency of the FAC, Defendants challenge the fact that they are responsible for the mudslide/landslide by introducing evidence that is outside the pleadings and reciting facts as Defendants perceive them to be. [D]efendants cannot set forth allegations of fact in their demurrers which, if true, would defeat plaintiff's complaint. (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144 citing Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 422423.) Nevertheless, Defendants demurrer states: In this Demurrer, Defendants will provide declarations and records establishing that the allegations are blatantly false and fail to state any claim against Defendants. Defendants refutes Plaintiffs erroneous assertions and statements. (Demurrer, at p. 7:27-8:2.) Defendants has demonstrated and evidence that it has no liability issues in this matter as well as the fact that there is no evidence that can change the fact that there is no evidence supporting Plaintiffs causes of action thereby destroying all allegations stated within the FAC. (Demurrer, at p. 13:18-21.) The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114 .) By submitting declarations and evidence, Defendants are asking the court to look beyond the allegations in the FAC and take the Defendants' facts true. For purposes of a demurrer, the material facts alleged in the pleadings are taken as true, regardless of whether Plaintiffs will be able to prove the pleaded facts. (See Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609610.) The truth of the facts and evidence presented in Defendants declarations remains subject to dispute. The proper forum to challenge Plaintiffs evidence is not via demurrer but via a motion for summary judgment after all discovery has been completed. Lastly, Defendants assert that in amending the Complaint, Plaintiffs made minor, seemingly, name changes, erred description and adding parties rather than editing the claims within the original complaint. (Demurrer, at p. 4:7-8.) The court notes that on October 31, 2023, the court overruled the Defendants demurrer to the Complaint as to all three causes of action. The court sees no reason to sustain Defendants demurrer because Defendants failed to show that the pleadings are legally deficient. The demurrer is overruled. Plaintiffs request for sanctions under CCP § 177.5 is also denied. motion to strike Defendants seek to strike the term undercapitalization from the FAC on the basis that the term is misleading and false. Defendants allege that the use of the term undercapitalization constitutes slander and defamation. (Motion, at p. 7:21-15.) Defendants fail to explain how the use of the word undercapitalized results in Defendants are being described as impoverished and mediocre who are ostracized from the community. (Motion, at p. 8:1-2.) Plaintiffs assert the allegation Defendant 3585 N. Multiview, LLC is undercapitalized is necessary to pierce the corporate veil. Plaintiffs further assert that the allegations in the FAC must be taken as true for purposes of a motion to strike. In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) The motion to strike is denied. Conclusion Defendants demurrer to the FAC is overruled in its entirety. Defendants motion to strike is denied. Defendants must file an Answer by August 19, 2024. The Court schedules an OSC Re: Filing of Answer August 28, 2024, and continues the CMC to the same date and time. Defendants to give notice. [1] Pursuant to CCP § 430.41, the meet and confer requirement has been met. (Salazar Decl., ¶¶ 6-9.)

Ruling

ANTHONY KIM VS EUNICE J. BODAK, ET AL.

Aug 08, 2024 |23STCV12604

Case Number: 23STCV12604 Hearing Date: August 8, 2024 Dept: 17 Superior Court of California County of Los Angeles DEPARTMENT 17 TENTATIVE RULING ANTHONY KIM vs. EUNICE J. BODAK Case No.: 23STCV12604 Hearing Date: August 8, 2024 Bodaks motion to set aside the entry of default is GRANTED. On 6/2/2023, Plaintiff Anthony Kim, in pro per, filed suit against Eunice J. Bodak, Sunok Ham Lee, Chares C. Yoo, Grace Eunhye Ryu, Wisdom Jeehye Ryu, alleging quiet title. On 6/14/2023, Plaintiff filed a first amended complaint (FAC) against the same parties alleging the same claim. On 9/12/2023, Complainants Charles C. Yoo, Grace Eunhye Ryu, and Wisdom Jeehye Ryu filed a cross-complaint against Eunice J. Bodak, alleging: (1) abuse of process; (2) fraud; (3) indemnification; (4) equitable contribution; and (5) declaratory relief. On 1/18/2024, default was entered against Eunice J. Bodak (Bodak). Now, Bodak moves to set aside the entry of default. Discussion Bodak argues that default should be set aside because she was never actually served. In support, Bodak notes that the Proof of Service indicates personal service by the process server on 12/13/2023 at 6:10 pm. However, at the time of the alleged service, Bodak did not reside at the location where she was purportedly served. (See Motion, Exh. 2.) Moreover, at the time of alleged service, she was living with her mother at her mothers residence as the conservator. Cross-Complainants filed a notice of no objection to this motion. Based on the foregoing, Bodaks motion to set aside the entry of default is granted. It is so ordered. Dated: August , 2024 Hon. Jon R. Takasugi Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. For more information, please contact the court clerk at (213) 633-0517.

Ruling

Guravtar Sandhu vs. Tejinder Pal Sandhu

Aug 08, 2024 |19CECG01948

Re: Sandhu v. Sandhu, et al. Superior Court Case No. 19CECG01948Hearing Date: August 8, 2024 (Dept. 503)Motion: by Plaintiff to Enforce SettlementTentative Ruling: To grant the motion to enforce settlement. Plaintiff Guravtar Sandu is directed tosubmit to this court, within 10 days of service of the minute order by the clerk, a proposedjudgment.Explanation: Under Code of Civil Procedure section 664.6, “If parties to pending litigationstipulate, in a writing signed by the parties outside the presence of the court or orallybefore the court, for settlement of the case, or part thereof, the court, upon motion, mayenter judgment pursuant to the terms of the settlement. If requested by the parties, thecourt may retain jurisdiction over the parties to enforce the settlement until performancein full of the terms of the settlement.” “If the court determines that the parties entered into an enforceable settlement,it should grant the motion and enter a formal judgment pursuant to the terms of thesettlement. The statute expressly provides for the court to ‘enter judgment pursuant tothe terms of the settlement.’” (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182-1883,internal citations omitted.) Here, the parties entered into a settlement agreement, the essential terms ofwhich were agreed upon orally before the court following the May 31, 2024 TrialReadiness Settlement Conference. The court agreed to retain jurisdiction pursuant toCode of Civil Procedure section 664.6. The parties agreed the settlement agreementwould be reduced to a written agreement. Following the settlement conference, counselfor defendant Tejinder Pal Sandhu (“Pal”) prepared a draft of the written settlementagreement. The initial draft was shared with counsel for plaintiff Guravtar Sandhu(“Guravtar”) who red-lined the draft and forwarded to opposing counsel for review andhis client’s signature. A dispute has arisen regarding the terms of the written settlement agreement. Paldesires to have specific amounts owed and paid within the terms of the writtenagreement. Guravtar argues the parties agreed to a third-party, Susan Thompson,conducting a final accounting to determine those figures and by seeking to add theseterms Pal is attempting to modify the terms of the settlement agreed upon orally beforethe court. Guravtar now seeks the court’s intervention enforcing the terms of theagreement made before the court. Both the initial draft and red-lined draft at paragraph 10 reflect the terms agreedto before the court that Susan Thompson of Hemming Morse would conduct anaccounting of Sandhu Farms LLC. Ms. Thompson is tasked with determining what amountsthe parties put in, paid out, or owed the limited liability company in order to distribute toeach party their share of the company’s assets. Her final accounting is binding on bothparties. The parties agreed upon a final accounting by Susan Thompson to distribute theassets of Sandhu Farms, LLC equally based upon amounts the parties put in, paid out, orowed the company. The specificity of the amounts Pal seeks to have included within theagreement appears to be conducting the final accounting before the written settlementagreement is signed. This is not consistent with what was agreed upon orally before thecourt. Therefore, the court intends to grant Guravtar Sandhu’s motion to enforce thesettlement. Prevailing party is directed to submit a judgment consistent with the terms ofsettlement entered into on May 31, 2024. The moving party requests attorney fees be awarded for having to obtain a courtorder to enforce the settlement. Although the fees are provided for under the settlementagreement, there is no evidence before the court of the time billed by Mr. Whelan inpursuing this order. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: jyh on 8/6/24 . (Judge’s initials) (Date)

Ruling

Phillips vs. Murphy, et al.

Aug 07, 2024 |22CV-0201197

PHILLIPS VS. MURPHY, ET AL.Case Number: 22CV-0201197Tentative Ruling on Motion for Court Order Appointing Real Estate Appraiser: KathrynPhillips, as successor trustee of the Ronald Leroy Smith Living Trust, seeks an order appointing areal estate appraiser pursuant to CCP § 874.311 et seq. Phillips, in her capacity as Trustee of theTrust, has a 50% interest in real property commonly known as 9786 Old Oregon Trail (“Property”)in Redding. The remaining 50% interest is held by Darlene Clark, who is deceased. Clark’s knownheirs are her four sons: Jim Murphy, Johnny Murphy, Terry Murphy, and Roger Murphy. Thefour sons as well as the unknown testate and intestate successors, as well as any other unknownparties claiming any interest in the property, have been served notice of this suit either personallyor by publication, pursuant to this Court’s order. Default was entered as to all Defendants on April29, 2024.The Court finds that the appropriate manner to determine the value of the real property under thecirc*mstances presented is to order an appraisal by a “disinterested real estate appraiser.” CCP §874.316(a) & (d). The Court appoints Sprenkel Appraisals as proposed by the Plaintiff.The motion is GRANTED. A proposed order was lodged with the Court and will be executed.This matter is set for Monday, September 9, 2024, at 9:00 a.m. in Department 64 forconfirmation of filing of the Appraisal.****************************************************************************** 9:00 a.m. Review Hearings******************************************************************************

Ruling

WILLIAM ERNESTO QUINTEROS, AN INDIVIDUAL, ET AL. VS BUDDIE L. HORN AS TRUSTEE OF THE THE HORN TRUST

Aug 09, 2024 |21STCV26026

Case Number: 21STCV26026 Hearing Date: August 9, 2024 Dept: 71 Superior Court of California County of Los Angeles DEPARTMENT 71 TENTATIVE RULING WILLIAM ERNESTO QUINTEROS, et al. vs. BUDDIE L. HORN as TRUSTEE OF THE HORN TRUST. Case No.: 21STCV26026 Hearing Date: December 5, 2023 Petitioner Nancy Marins petition to approve minors compromise for Ainhoa Alexis Marin is granted. The Court orders the funds deposited in the blocked account. Petitioner Nancy Marin (N. Marin), on behalf of Claimant Ainhoa Alexis Marin (Ainhoa) petitions the Court to approve minors compromises in the settlement of the instant action. I. Background N. Marin, individually and as guardian ad litem for Ainhoa together with other named Plaintiffs (collectively, Plaintiffs) filed an initial complaint against Defendant Buddie L. Horn as trustee of the Horn Trust (Horn) (Defendant) on July 15, 2021. Plaintiffs filed the first amended complaint (FAC) against Defendant on September 15, 2021. On March 9, 2024, Plaintiffs filed the operative second amended complaint (SAC) for (1) breach of implied warranty of habitability, (2) breach of statutory warranty of habitability, (3) breach of the covenant of quiet enjoyment, (4) negligence, (5) violation of Civil Code §1942.4, and (6) private nuisance for issues at an apartment building located 1111 E. Garvey Avenue, North West Covina, California 91790, APN 8456-023-037 (Apartment Building), owned and managed by Defendant, where Plaintiffs were tenants in Units 3, 5, 6, and 7. (SAC ¶¶1-2.) Pursuant to the instant petition, Defendant has agreed to pay Plaintiffs to settle the claims. (Amended Petition ¶¶10, 11.) A settlement was reached pursuant to which Defendant agreed to pay a total of $1,125,000.00. (Amended Petition at Attach. 11, pg. 2.) The eleven settling minor claimants (including Ainhoa) will receive a gross sum of $15,000.00 each, and the eleven adult Plaintiffs will receive $87,272.73 each. (Amended Petition at Attach. 11.) The total amount of attorneys fees for which court approval is requested is $3,635.67, calculated as twenty-five percent of the minor claimants settlement total and is based on a contingency basis, and the total fees are $457.31, for a total of $4,092.98 in attorneys fees and costs per minor claimant. (Amended Petition ¶13; Decl. of Chapman ¶4.) The net balance of proceeds for each minor claimant is $10,907.02. (Amended Petition ¶¶15, 16(f).) All procedural requirements have been met, as Petitioner has completed a Judicial Council form MC-350 on behalf of the minor claimant, signed by the Petitioner, as well as Form MC-351 on the minor claimants behalf. II. Legal Standard Compromises of disputed claims brought by minors are governed in part by C.C.P. §372. The statute allows a guardian ad litem to appear in court on behalf of a minor claimant and gives the guardian ad litem the power to compromise the minors claim with the approval of the court in which the action or proceeding is pending. A petition for court approval of a compromise must be verified by the petitioner and must contain a full disclosure of all information that has any bearing upon the reasonableness of the compromise or covenant. (CRC Rule 7.950.) CRC Rule 7.952(a) requires the attendance of the petitioner and claimant at the hearing on the compromise of the claim unless the court for good causes dispenses with their personal appearance. Neither section 372 nor the California Rules of Court (rules 7.950 & 7.952) contemplates a noticed motion and adversary hearing when court approval of a minors compromise is sought. Although we need not decide the question, it would appear that a petition to approve or disapprove a minors compromise may be decided by the superior court, ex parte, in chambers. (Pearson v. Superior Court (2012) 202 Cal.App.4th 1333, 1337.) CRC Rule 7.955(a) requires the Court to use a reasonable fee standard when approving and allowing the amount of attorneys fees payable from money to be paid for the benefit of a person with a disability and requires that the Court give consideration to the terms of any representation agreement made between the attorney and the representative of the minor . . . and evaluate the agreement based on the facts and circ*mstances existing at the time the agreement was made, except where the attorney and the representative of the minor . . . contemplated that the attorneys fee would be affected by later events. CRC Rule 7.955(b) sets forth fourteen nonexclusive factors the Court may consider in determining a reasonable attorneys fee. CRC Rule 7.955(c) requires that a petition requesting Court approval and allowance of an attorneys fee under 7.955(a) must include a declaration from the attorney that addresses the factors listed in 7.955(b) that are applicable to the matter before the Court. III. Analysis Petitioner N. Marin seeks court approval for a settlement under which the minor claimant would receive $10,907.02. The amounts reflect payment amounts to the minor claimant after deduction of attorneys fees representing 25% of the minor claimants settlement and after deduction of costs in amounts specific to the minor claimant. (See Amended Petition ¶16(f).) This is a habitability suit, in which the minor claimant lived in uninhabitable conditions, including but not limited to living with co*ckroach, bed bug, and rodent infestations, which caused injuries including bed bug bites, lack of sleep, and allergies with symptoms including running nose and cough. (Amended Petition ¶¶5-6.) The minor claimant has recovered completely from these injuries with no permanent injuries. (Amended Petition ¶8.) Petitioners counsel, Christofer Chapman, declares that the attorney fees requested are based on a contingency basis and attorneys fees are contingent on a settlement or judgment. (Decl. of Chapman ¶4.) Chapman declares the costs advanced in this matter are $34,298.33 to date. (Decl. of Chapman ¶4.) Chapman declares in the course of this litigation, his firm conducted numerous client meetings, site inspections, depositions, mediation sessions and made court appearances. (Decl. of Chapman ¶5.) Chapman declares his firm propounded and responded to written discovery relative to each plaintiff client including the minor claimants, and his firm propounded written discovery on the defendants on behalf of his clients. (Decl. of Chapman ¶5.) Chapman declares this case also involved evaluation of complex coverage issues such as multiple policy exclusions and the application of multiple insurance policies for multiple owners. (Decl. of Chapman ¶5.) Chapman declares the average amount of time expended in the prosecution of this matter on behalf of each minor claimant was approximately 20 hours each. (Decl. of Chapman ¶5.) Chapman declares the attorneys fees sought in this matter from the minor claimants is reasonable given the issues, expertise, time, and experience required to bring this matter to resolution. (Decl. of Chapman ¶5.) The Amended Petition includes a copy of an agreement between Petitioner and her counsel that are included with English translations certified by a certified court interpreter. (Attachment 17(a)(2).) The agreement identifies the name of the individual who signed the submitted retainer agreement on behalf of the minor client. As such, the submitted copy of the written attorney fee arrangement agreements with the minor claimant is sufficient and supports the attorneys fees request. Petitioner requests this Court order the disposition of the minor claimants balance of the settlement, in the amount of $10,907.02, be deposited in insured accounts in one or more financial institutions in this state, subject to withdrawal only on authorization of the Court. (Amended Petition ¶18(b)(2).) Petitioner selects the following financial institution for the disposition of the minor claimants balance: Pacific Premier Bank, 4957 Katella Ave Unit B, Los Alamitos, CA 90720. (Amended Petition at Attach. 18(b)(2).) Given the age of the minor claimant, the Court will only require attendance at the hearing by the Petitioner to grant the petition. (CRC Rule 7.952.) IV. Conclusion Based on the foregoing, the petition to approve the minors compromise is granted. The Court orders the funds deposited in the blocked account. The Court continues the hearing on the Order to Show Cause why the case should not be dismissed in light of the settlement to and sets a hearing on an Order to Show Cause as to the whereabouts of the proof of deposit into the blocked account on October 28, 2024, at 8:30 a.m. in Dept. 71. Plaintiff is to give notice of these outcomes. Dated: August ____, 2024 Hon. Daniel M. Crowley Judge of the Superior Court

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

ORI BLUMENFELD VS BROOKE MASON

Aug 09, 2024 |23STCV05240

Case Number: 23STCV05240 Hearing Date: August 9, 2024 Dept: 57 At today's hearing on the OSC re appointment of a partition referee, the Court will appoint Kevin Singer and John Rachlin. To memorialize the appointment, the Court will direct Defendants' counsel Mr. Seeley to prepare the proposed order, using his redlined version of Mr. Singer's "termplate" order. The Court will spend no time today reviewing with Mr. Seeley and Plaintiffs counsel Ms. Rosenthal why one joint status report was not submitted, and their tiresome and tedious sniping at each other in the non-joint reports that were filed.

Ruling

WENDY LIN VS BO SUN

Aug 08, 2024 |22PSCV00580

Case Number: 22PSCV00580 Hearing Date: August 8, 2024 Dept: O Tentative Ruling MOTION BY PLAINTIFF WENDY LIN TO QUASH SUBPOENA is CONTINUED/TBD pending supplemental briefing. Background (Even though the motion was filed in case 22PSCV00580 (filed 6/14/22), it relates to the related case of 22STCV31621 (filed 9/27/22), as acknowledged by both parties.[1] Therefore, the court will provide case 22STCV31621s factual background and related filings.) This is a contracts case. Plaintiff Wendy Lin (Wendy or Plaintiff) alleges that she and Defendant Bo Sun (Bo or Defendant) formed TOPTREE INVESTMENT LLC (Toptree) with the purpose of jointly purchasing a property in Chino Hills (the property). Plaintiff paid the entire purchase price, but Bo has failed to pay his $50,000 capital contribution such that by the terms of the Operating Agreement, Bo has lost his entire membership interest in the company. (See generally First Amended Complaint (FAC).)[2] On June 3, 2024, Wendy filed the instant motion to quash. On July 12, 2024, Bo filed his opposition. On July 23, 2024, Wendy filed her reply. On July 25, 2024, the court granted Bos motion for leave to file a cross-complaint against Wendy in addition to Nature Land, Inc. and Vua Kho Bo, Inc. which are other third-party entities which are owned by Wendy (case 22STCV31621). That same day, in case 22PSCV00580, pursuant to oral stipulation during the hearing due to the courts ongoing connectivity issues such that the reply brief was not timely received, the hearing was continued to 8/8/24. Legal Standard Code of Civil Procedure section 1987.1(a) provides as follows: If a subpoena requires...the production of books, documents, electronically stored information, or other things...the court, upon motion reasonably made by any person described in subdivision (b)...may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. Discussion At the outset, the court agrees with Bo, and Plaintiff otherwise concedes in reply, that the motion has failed to file a separate statement as required by CRC Rule 3.1345(a)(5). However, the court exercises its discretion to overlook that defect because (i) the motion itself sets forth the documents at issue and (2) any factual arguments are Bos burden to set forth. Thus, as the separate statement would merely be duplicative of contents set forth in the motion, the motion will not be denied on said grounds. The court now turns to the merits of the motion. On or about May 8, 2024, Defendant Bo Sun (Defendant) served Deposition Subpoenas for Production of Business Records (Subpoenas) dated May 8, 2024, on John Wu CPA, Inc., seeking the following: 1. Produce all documents including, but not limited to, communications, tax returns, tax related documents, balance sheet, profit and loss statements, general ledger and bank statements, for Toptree Investment LLC from December 2019 to the present time. 2. Produce all documents including, but not limited to, communications, tax returns, tax related documents, balance sheet, profit and loss statements, general ledger and bank statements, for Nature Land, Inc. from May 2008 to the present time. 3. Produce all documents including, but not limited to, communications, tax returns, tax related documents, balance sheet, profit and loss statements, general ledger and bank statements, for Jerky King, Inc. from September 2009 to the present time. (Wendy does not take issue with categories 3.) 4. Produce all documents including, but not limited to, communications, tax returns, tax related documents, balance sheet, profit and loss statements, general ledger and bank statements for Vua Kho Bo, Inc. from December 2011 to the present time. 5. Produce all documents including, but not limited to, communications, tax returns, tax related documents, balance sheet, profit and loss statements, general ledger and bank statements for Vua Kho Bo & Omai from December 2011 to the present time. 6. Produce all documents including, but not limited to, communications, tax returns, tax related documents, balance sheet, profit and loss statements, general ledger and bank statements for Wendy Lin from May 2008 to the present time. 7. Produce all documents including, but not limited to, communications, tax returns, tax related documents, balance sheet, profit and loss statements, general ledger and bank statements for Bo Sun from May 2008 to the present time. (Wendy does not take issue with category 7; Motion p. 4:5-6.) Wendy moves to quash said subpoena because they seek private financial information. As noted by Plaintiff and not otherwise disputed in opposition, it is well established that individuals have a legally recognized privacy interest in their personal financial information. (See Motion p. 6, citing Valley Bank of Nevada v. Superior Court (1975) 15 Cal. 3d 652, 656-58; see also p. 7, citing In re Ins. Installment Fee Cases (2012) 211 Cal.App.4th 1395, 1428 [information privacy in personal financial affairs]; see p. 7, citing Look v. Penovatz (2019) 34 Cal.App.5th 61, 73 [right to privacy extends to an individual's confidential financial information in whatever form it takes, e.g., tax returns, checks, statements, or other account information].) In the face of an objection based on privacy, the party seeking discovery of the information must show that information is directly relevant to a cause of action or defense, essential to the fair resolution of the lawsuit, and not available through less intrusive means. (Ibid.) Simply put, once the privacy objection is asserted (as Wendy has done here), the burden shifts to the propounding party (here, Bo) to explain the relevancy of the financial information and that the information sought cannot be obtained through less intrusive means. However, Bo has failed to meet his burden. Bo claims that the financial records are needed because [a] full accounting of all entities relating to the joint venture will show that not only Sun made his contribution into [Toptree] but also that Lin took more than she was entitled to take from the joint venture. (Opp. p. 3:2-5.) But if the concern is an accounting, it is unclear, how, as noted by Wendy, tax returns are necessary for such computation. (See Reply p. 2:19-21 [This could be done with bank records, banks statements, checks, all of which would be entirely fair game to resolve the issues in this case. However, to then say that tax returns are also necessary is untrue and protected.].) As for the corporate entities, both parties acknowledge that the right to privacy is generally limited to natural persons. (Opp. p. 5:17-18, citing Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770, 791; see also Motion p. 7:18-23, citing Ameri-Med Corp. v. Worker's Comp. Appeals Bd. (1996) 42 Cal.App.4th 1260 (Ameri-Med) Notwithstanding, the law is developing in the direction that the strength of the privacy right being asserted by a nonhuman entity depends on the circ*mstances. Two critical factors are the strength of the nexus between the artificial entity and human beings and the context in which the controversy arises. (Id. at p. 1288, quoting Roberts, supra, 147 Cal.App.3d at pp. 796-797.) Neither party has adequately briefed this balancing test. Therefore, the court will allow for supplemental briefing to explain in detail the relevancy of the financial documents and why all sources of financial information are needed. Regardless of the outcome, the court will not award monetary sanctions to either party.[3] Conclusion Based on the foregoing, the motion is continued/TBD pending supplemental briefing. [1] Wendy states that she filed the motion in 22PSCV00580 because it is the lead case. (Reply p. 2:6-9.) [2] The court notes that despite its 2/28/24 ruling sustaining Bos demurrer in that Plaintiffs allegation that Bo was to pay 50% of the purchase price is contradicted by the Operating Agreement and that though Bo filed an answer to the FAC, Plaintiff, perhaps inadvertently, maintains to assert that Bo has failed to pay his one-half of the Property's purchase price. (FAC ¶¶8, 20.) [3] Bo further maintains that the tax privilege cannot be asserted where a public policy greater than that of confidentiality of tax returns is involved. (Opp. pp. 4-5, citing Schanbel v. Sup. Ct. (1993) 5 Cal.4th 704.) But Schanbel is inapposite because there the strong policy was favorability of the full disclosure in a dissolution proceeding to ensure fair child and spousal support awards and a fair division of community assets. Here, the mere fact that Bo and Wendy were spouses and engaged in a joint venture does not in and of itself provide for any public policy.

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