On December 29, 2020 a
Complaint,Petition
was filed
involving a dispute between
Anaheim Fries Partners Llc,
Anaheim Fries Partners Llc A California Limited Liability Company,
Anaheim Island Partners Llc,
Anaheim Island Partners Llc A California Limited Liability Company,
Arlington Square L.P.,
Arlington Square L.P. A California Limited Partnership,
Au Zone Arvada Llc,
Au Zone Arvada Llc A Colorado Limited Liability Company,
Au Zone Investments #2 Lp,
Au Zone Investments #2 Lp A California Limited Partnership,
Au Zone Madison Llc,
Au Zone Madison Llc A California Limited Liability Company,
Au Zone Placentia Llc,
Au Zone Placentia Llc A California Limited Liability Company,
Bristol Chino Ii Llc,
Bristol Chino Ii Llc A California Limited Liability Company,
Broomfield Associates Lp,
Broomfield Associates Lp A California Limited Partnership,
Chino Hills Retail Ii Llc,
Chino Hills Retail Ii Llc A California Limited Liability Company,
Chino Retail Llc,
Chino Retail Llc A California Limited Liability Company,
Chino Stratford Llc,
Chino Stratford Llc An Illinois Limited Liability Company,
Devonshare Reseda Llc,
Devonshare Reseda Llc A California Limited Liability Company,
East Anaheim Acquisition Llc,
East Anaheim Acquisition Llc A California Limited Liability Company,
F&F Investments Llc,
F&F Investments Llc A California Limited Liability Company,
Frank Mission Marketplace Llc,
Frank Mission Marketplace Llc A California Limited Liability Company,
Ginsborg Boys Llc,
Ginsborg Boys Llc A California Limited Liability Company,
Gmx Melrose Llc,
Gmx Melrose Llc An Illinois Limited Liability Company,
Gmx Real Estate Group Llc,
Gmx Real Estate Group Llc An Illinois Limited Liability Company,
Hekmatravan Family,
Hekmatravan Family A California Limited Liability Company,
Jamshid Levian-Norwalk Llc,
Jamshid Levian Norwalk Llc A California Limited Liability Company,
Javid Levian-Norwalk Llc,
Javid Levian Norwalk Llc A California Limited Liability Company,
J & J Baldwin Park Llc,
J & J Baldwin Park Llc A Delaware Limited Liability Company,
J&J Warehouse Llc,
J&J Warehouse Llc A California Limited Liability Company,
Levian Family-Norwalk Llc,
Levian Family Norwalk Llc A California Limited Liability Company,
Manoochehr Levian-Norwalk Llc,
Manoochehr Levian Norwalk Llc A California Limited Liability Company,
Melrose Park Associates Llc,
Melrose Park Associates Llc A Delaware Limited Liability Company,
Melrose Park Equity Llc,
Melrose Park Equity Llc An Illinois Limited Liability Company,
Melrose Park Investments L.P.,
Melrose Park Investments L.P. A California Limited Partnership,
Mesa Town Center Llc,
Mesa Town Center Llc A California Limited Liability Company,
Newman Capital Tek Llc,
Newman Capital Tek Llc A Delaware Limited Liability Company,
Newmark Merrill Companies Inc.,
Newmark Merrill Companies Inc. A California Company,
Newmark Merrill Mountain States Llc,
Newmark Merrill Mountain States Llc A California Limited Liability Company,
Newmark University Llc,
Newmark University Llc A California Limited Liability Company,
Njl Corona Llc,
Njl Corona Llc A California Limited Liability Company,
Njm Rialto Llc,
Njm Rialto Llc A California Limited Liability Company,
Nmc Anaheim Llc,
Nmc Anaheim Llc A California Limited Liability Company,
Nmc Broadway Llc,
Nmc Broadway Llc A California Limited Liability Company,
Nmc Broomfield Llc,
Nmc Broomfield Llc A California Limited Liability Company,
Nmc Cottonwood Llc,
Nmc Cottonwood Llc A California Limited Liability Company,
Nmc Grove Melrose Llc,
Nmc Grove Melrose Llc A Delaware Limited Liability Company,
Nmc Grove Ontario Epl,
Nmc Grove Ontario Epl A Delaware Limited Liability Company,
Nmc Grove Ontario Llc,
Nmc Grove Ontario Llc A California Limited Liability Company,
Nmc Grove Ontario Mc Llc,
Nmc Grove Ontario Mc Llc A Delaware Limited Liability Company,
Nmc Grove Ontario Pb Llc,
Nmc Grove Ontario Pb Llc A Delaware Limited Liability Company,
Nmc Grove Ontario Pda Llc,
Nmc Grove Ontario Pda Llc A Delaware Limited Liability Company,
Nmc Madison Marketplace Llc,
Nmc Madison Marketplace Llc A California Limited Liability Company,
Nmc Melrose Park Ii Llc,
Nmc Melrose Park Ii Llc An Illinois Limited Liability Company,
Nmc Melrose Park Llc,
Nmc Melrose Park Llc A California Limited Liability Company,
Nmc Melrose Park Manager Llc,
Nmc Melrose Park Manager Llc A California Limited Liability Company,
Nmc Placentia Llc,
Nmc Placentia Llc A California Limited Liability Company,
Nmc Santa Ana Llc,
Nmc Santa Ana Llc A California Limited Liability Company,
Nmc South,
Nmc Southgate Llc,
Nmc Southgate Llc A California Limited Liability Company,
Nmc Southgate Plaza Llc,
Nmc Southgate Plaza Llc A California Limited Liability Company,
Nmc South Llc A California Limited Liability Company,
Nmc Stony Island Llc,
Nmc Stony Island Llc A Delaware Limited Liability Company,
Nmc Stratford Llc,
Nmc Stratford Llc A Delaware Limited Liability Company,
Nmc Tower Llc,
Nmc Tower Llc A California Limited Liability Company,
Nmc Upland Llc,
Nmc Upland Llc A California Limited Liability Company,
Nmc Washington Llc,
Nmc Washington Llc A California Limited Liability Company,
Nmc Whittier Ii Llc,
Nmc Whittier Ii Llc A California Limited Liability Company,
Nmc Whittier Llc,
Nmc Whittier Llc A California Limited Liability Company,
Nmms Twin Peaks Llc,
Nmms Twin Peaks Llc A California Limited Liability Company,
Norwalk Flallon Llc,
Norwalk Flallon Llc A California Limited Liability Company,
Norwalk Town Square Management Inc.,
Norwalk Town Square Management Inc. A California Corporation,
Pearl Whittier Painter Llc,
Pearl Whitttier Painter Llc A California Limited Liability Company,
Rlm Family Properties Llc,
Rlm Family Properties Llc A California Limited Liability Company,
Shane Stratford Llc,
Shane Stratford Llc An Illinois Limited Liability Company,
Shane Tower Llc,
Shane Tower Llc A Delaware Limited Liability Company,
Shane Uniersity Llc A Delaware Limited Liability Company,
Shane University Llc,
Shokraolah Levian-Norwalk Llc,
Shokraolah Levian Norwalk Llc A California Limited Liability Company,
Source Associates Llc,
Source Associates Llc A California Limited Liability Company,
Thousand Oaks Marketplace Lp,
Thousand Oaks Marketplace Lp A California Limited Partnership,
Tomo Gd Llc,
Tomo Gd Llc A Delaware Limited Liability Company,
Tower Broomfield Llc,
Tower Broomfield Llc A Delaware Limited Liability Company,
Triangle Town Center Nw Llc,
Triangle Town Center Nw Llc A Washington Limited Liability Company,
Upland Terry Llc,
Upland Terry Llc A Delaware Limited Liability Company,
Upside Cip Lp,
Upside Cip Lp A Delaware Limited Partnership,
Upside Crenshaw Holdings Llc,
Upside Crenshaw Holdings Llc A Delaware Limited Liability Company,
Whittier Gateway L.P.,
Whittier Gateway L.P A California Limited Partnership,
Aspen Specialty Insurance Company,
Ategrity Specialty Insurance Company,
Certain Underwriters At Lloyd'S London Subscribing To Certificate Number Arp 19021,
Certain Underwriters At Lloyd'S London Subscribing To Policy Number Pg1900248,
Certain Underwriters At Lloyd'S London Subscribing To Policy Number Pg1902626,
Certain Underwriters At Lloyd'S London Subscribing To Policy Number Pg1902628,
Certain Underwriters At Lloyd'S London Subscribing To Policy Number Pg1902643,
Certain Underwriters At Lloyd'S London Subscribing To Policy Number Pg1902647,
Certain Underwriters At Lloyd'S London Subscribing To Policy Number Pg1933878,
Hdi Global Specialty Se,
Ironshore Specialty Insurance Company,
Navigators Specialty Insurance Company,
and
Aspen Insurance Uk Limited Doe 7,
Aspen Specialty Insurance Company Doe 9,
Ategrity Specialty Insurance Company Doe 2,
Certain Underwriters At Lloyds London Subscribing To Certificate Number Arp19021,
Certain Underwriters At Lloyd'S London Subscribing To Policy Number Pd-10326-04 Doe 14,
Certain Underwriters At Lloyd'S London Subscribing To Policy Number Pg1900248 Doe 4,
Certain Underwriters At Lloyd'S London Subscribing To Policy Number Pg1902626 Doe 12,
Certain Underwriters At Lloyd'S London Subscribing To Policy Number Pg1902628 Doe 5,
Certain Underwriters At Lloyd'S London Subscribing To Policy Number Pg1902643 Doe 10,
Certain Underwriters At Lloyd'S London Subscribing To Policy Number Pg1902647 Doe 3,
Certain Underwriters At Lloyd'S London Subscribing To Policy Number Pg1933878 Doe 11,
Colony Insurance Company Doe 13,
Hdi Global Specialty Se - Uk Branch,
Hdi Global Specialty Se- Uk Branch Doe 15,
Ironshore Specialty Insurance Company Doe 8,
Navigators Specialty Insurance Company Doe 1,
Scottsdale Insurance Company Doe 6,
for Insurance Coverage (not complex) (General Jurisdiction)
in the District Court of Los Angeles County.
Preview
1 MICHAEL J. BIDART #60582
RICARDO ECHEVERRIA #166049
2
KRISTIN HOBBS #277843
3 SHERNOFF BIDART ECHEVERRIA LLP
4 600 South Indian Hill Boulevard
Claremont, California 91711
5 Telephone: (909) 621-4935
6 Facsimile: (909) 625-6915
7
Attorneys for Plaintiffs
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
IN AND FOR THE COUNTY OF LOS ANGELES
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SHERNDFF BIDART
11
ECHEVERRIA'"'
12
NEWMARK MERRILL COMPANIES, Case No.: 20STCV49581
13 INC., a California Company; NMC SOUTH, [Hon. Robert S. Draper]
LLC, a California Limited Liability
14
Company; NEWMARK MERRILL SECOND AMENDED COMPLAINT
15 MOUNTAIN STATES, LLC, a California AND DEMAND FOR JURY TRIAL
Electronically Received 04/22/2022 12:41 PM
16 Limited Liability Company; NMC
BROADWAY, LLC, a California Limited 1. BREACH OF THE IMPLIED
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17
Liability Company; CHINO RETAIL, LLC, COVENANT OF GOOD FAITH AND
18 a California Limited Liability Company; FAIR DEALING
CHINO HILLS RETAIL II, LLC, a
19
California Limited Liability Company; 2. BREACH OF CONTRACT
20 NMC ANAHEIM, LLC, a California
21 Limited Liability Company; ANAHEIM
ISLAND PARTNERS, LLC, a California
22
Limited Liability Company; RLM FAMILY
23 PROPERTIES, LLC, a California Limited
Liability Company; F&F INVESTMENTS,
24
LLC, a California Limited Liability
25 Company; EAST ANAHEIM
26 ACQUISITION, LLC, a California Limited
Liability Company; MESA TOWN
27 CENTER, LLC, a California Limited
28 Liability Company; ANAHEIM FRIES
-1-
SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL
1 PARTNERS, LLC, a California Limited
Liability Company; BRISTOL CHINO II,
2
LLC, a California Limited Liability
3 Company; NMC SANTA ANA, LLC, a
4 California Limited Liability Company;
GINSBORG BOYS, LLC, a California
5 Limited Liability Company; NJL
6 CORONA, LLC, a California Limited
Liability Company; FRANK MISSION
7
MARKETPLACE, LLC, a California
8 Limited Liability Company; NORWALK
9 TOWN SQUARE MANAGEMENT, INC., a
California Corporation; JAVID LEVIAN –
10 NORWALK LLC, a California Limited
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11 Liability Company; SHOKRAOLAH
ECHEVERRIA'"'
LEVIAN – NORWALK LLC, a California
12
Limited Liability Company; JAMSHID
13 LEVIAN – NORWALK LLC, a California
14 Limited Liability Company;
MANOOCHEHR LEVIAN – NORWALK
15 LLC, a California Limited Liability
16 Company; LEVIAN FAMILY – NORWALK
LLC, a California Limited Liability
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17
Company; HEKMATRAVAN FAMILY - a
18 California Limited Liability Company;
19 ARLINGTON SQUARE, L.P., a California
Limited Partnership; NMC GROVE
20 ONTARIO, LLC, a California Limited
21 Liability Company; NMC GROVE
ONTARIO EPL, a Delaware Limited
22
Liability Company; NMC GROVE
23 ONTARIO PB, LLC, a Delaware Limited
Liability Company; NMC GROVE
24
ONTARIO MC, LLC, a Delaware Limited
25 Liability Company; NMC GROVE
26 ONTARIO PDA, LLC, a Delaware Limited
Liability Company; SHANE UNIVERSITY,
27
LLC, a Delaware Limited Liability
28 Company; NEWMARK UNIVERSITY, LLC,
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SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL
1 a California Limited Liability Company;
NMC STRATFORD, LLC, a Delaware
2
Limited Liability Company; CHINO
3 STRATFORD, LLC, an Illinois Limited
4 Liability Company; GMX REAL ESTATE
GROUP, LLC, an Illinois Limited Liability
5 Company; SHANE STRATFORD, LLC, an
6 Illinois Limited Liability Company; NMC
WHITTIER, LLC, a California Limited
7
Liability Company; NMC TOWER, LLC, a
8 California Limited Liability Company;
9 WHITTIER GATEWAY, L.P, a California
Limited Partnership; PEARL WHITTTIER
10 PAINTER, LLC, a California Limited
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11 Liability Company; NMC WHITTIER II,
ECHEVERRIA'"'
LLC, a California Limited Liability
12
Company; NMC COTTONWOOD, LLC, a
13 California Limited Liability Company;
14 SHANE TOWER, LLC, a Delaware Limited
Liability Company; NMC BROOMFIELD,
15 LLC, a California Limited Liability
16 Company; BROOMFIELD ASSOCIATES,
LP, a California Limited Partnership;
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17
TOWER BROOMFIELD, LLC a Delaware
18 Limited Liability Company; NMC
19 MELROSE PARK, LLC, a California
Limited Liability Company; NMC
20 MELROSE PARK MANAGER, LLC, a
21 California Limited Liability Company;
MELROSE PARK INVESTMENTS L.P., a
22
California Limited Partnership; MELROSE
23 PARK EQUITY, LLC, an Illinois Limited
Liability Company ; MELROSE PARK
24
ASSOCIATES, LLC, a Delaware Limited
25 Liability Company; NMC GROVE
26 MELROSE, LLC, a Delaware Limited
Liability Company; GMX MELROSE, LLC,
27
an Illinois Limited Liability Company;
28 NMC MELROSE PARK II, LLC, an Illinois
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SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL
1 Limited Liability Company; NMC
WASHINGTON, LLC, a California Limited
2
Liability Company; AU ZONE ARVADA,
3 LLC, a Colorado Limited Liability
4 Company; AU ZONE INVESTMENTS #2,
LP, a California Limited Partnership;
5 THOUSAND OAKS MARKETPLACE, LP,
6 a California Limited Partnership; J & J
BALDWIN PARK LLC, a Delaware Limited
7
Liability Company; NEWMAN CAPITAL
8 TEK, LLC, a Delaware Limited Liability
9 Company; J&J WAREHOUSE LLC, a
California Limited Liability Company;
10 DEVONSHARE RESEDA, LLC, a California
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11 Limited Liability Company; NMC
ECHEVERRIA'"'
UPLAND, LLC, a California Limited
12
Liability Company; NORWALK
13 FLALLON, LLC, a California Limited
14 Liability Company; TOMO GD LLC, a
Delaware Limited Liability Company;
15 UPLAND TERRY, LLC, a Delaware
16 Limited Liability Company; SOURCE
ASSOCIATES, LLC, a California Limited
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17
Liability Company; UPSIDE CRENSHAW
18 HOLDINGS, LLC, a Delaware Limited
19 Liability Company; UPSIDE CIP, LP, a
Delaware Limited Partnership; NMMS
20 TWIN PEAKS, LLC, a California Limited
21 Liability Company; NMC SOUTHGATE,
LLC, a California Limited Liability
22
Company; NMC SOUTHGATE PLAZA,
23 LLC, a California Limited Liability
Company; NJM RIALTO, LLC, a California
24
Limited Liability Company; NMC
25 PLACENTIA, LLC, a California Limited
26 Liability Company; AU ZONE
PLACENTIA, LLC, a California Limited
27
Liability Company; AU ZONE MADISON,
28 LLC; a California Limited Liability
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SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL
1 Company; NMC MADISON
MARKETPLACE, LLC, a California
2
Limited Liability Company; TRIANGLE
3 TOWN CENTER NW, LLC, a Washington
4 Limited Liability Company; NMC STONY
ISLAND, LLC, a Delaware Limited Liability
5 Company,
6
Plaintiffs,
7
8 vs.
9
CERTAIN UNDERWRITERS AT
10 LLOYD’S LONDON SUBSCRIBING TO
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11 CERTIFICATE NUMBER ARP19021;
ECHEVERRIA'"'
NAVIGATORS SPECIALTY
12
INSURANCE COMPANY, previously
13 identified as DOE 1; ATEGRITY
14 SPECIALTY INSURANCE COMPANY,
previously identified as DOE 2; HDI
15 GLOBAL SPECIALTY SE, previously
16 identified as DOE 15; IRONSHORE
SPECIALTY INSURANCE COMPANY,
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17
previously identified as DOE 8; ASPEN
18 SPECIALTY INSURANCE COMPANY,
19 previously identified as DOE 9; CERTAIN
UNDERWRITERS AT LLOYD’S
20 SUBSCRIBING TO PG1902647 [DOE 3],
21 PG1900248 [DOE 4], PG1902628 [DOE 5],
PG1902643 [DOE 10], PG1933878 [DOE
22
11], PG1902626 [DOE 12]; COLONY
23 INSURANCE COMPANY, previously
identified as DOE 13; DOES 16 through
24
100, inclusive,
25
26 Defendants.
27
28
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SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL
1 I.
2 INTRODUCTION
3 1. Business Interruption coverage is an optional insurance benefit available
4 to businesses to minimize their risk and sustain them when a suspension of business
5 operations causes a loss of business income. This coverage allows businesses to pay
6 continuing operating expenses, additional expenses incurred because of the
7 interruption, and supplement their lost business income.
8 2. As California Insurance Commissioner Ricardo Lara stated in a notice on
9 April 14, 2020 to all admitted and non-admitted insurance companies in California,
10 “small and large California businesses purchase Business Interruption insurance to
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11 protect against the loss of income and other losses caused by an interruption to the
ECHEVERRIA'"'
12 normal operations of the business.” (Exhibit 1).
13 3. Plaintiff NewMark Merrill Companies, Inc., a California Corporation
14 [“NMMC”] manages shopping centers in California and Illinois. Plaintiff NMC South,
15 LLC [“NMC South”] manages shopping centers in the San Diego area of California and
16 in Washington. NewMark Merrill Mountain States, LLC [“NMC Mountain States”]
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17 manages shopping centers in Colorado.
18 4. The Plaintiffs who have an ownership interest in the specific shopping
19 centers [“Owner Plaintiffs”] who are each a “subsidiary, associated or allied company,
20 corporation, firm, organization” of and managed by NMMC, NMC South, or NMC
21 Mountain States are:
22 CHINO RETAIL, LLC; CHINO HILLS RETAIL II, LLC; NMC ANAHEIM,
23 LLC; ANAHEIM ISLAND PARTNERS, LLC; RLM FAMILY
24 PROPERTIES, LLC; F&F INVESTMENTS, LLC; EAST ANAHEIM
25 ACQUISITION, LLC; MESA TOWN CENTER, LLC; ANAHEIM FRIES
26 PARTNERS, LLC; BRISTOL CHINO II, LLC; NMC SANTA ANA, LLC;
27 GINSBORG BOYS, LLC; NJL CORONA, LLC; FRANK MISSION
28 MARKETPLACE, LLC; NORWALK TOWN SQUARE MANAGEMENT,
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SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL
1 INC.; JAVID LEVIAN – NORWALK LLC; SHOKRAOLAH LEVIAN –
2 NORWALK LLC; JAMSHID LEVIAN – NORWALK LLC;
3 MANOOCHEHR LEVIAN – NORWALK LLC; LEVIAN FAMILY –
4 NORWALK LLC; HEKMATRAVAN FAMILY; ARLINGTON SQUARE,
5 L.P.; NMC GROVE ONTARIO, LLC; NMC GROVE ONTARIO EPL; NMC
6 GROVE ONTARIO PB, LLC; NMC GROVE ONTARIO MC, LLC; NMC
7 GROVE ONTARIO PDA, LLC; SHANE UNIVERSITY, LLC; NEWMARK
8 UNIVERSITY, LLC; NMC STRATFORD, LLC; CHINO STRATFORD,
9 LLC; GMX REAL ESTATE GROUP, LLC; SHANE STRATFORD, LLC;
10 NMC WHITTIER, LLC; NMC TOWER, LLC; WHITTIER GATEWAY, L.P.;
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11 PEARL WHITTTIER PAINTER, LLC; NMC WHITTIER II, LLC; NMC
ECHEVERRIA'"'
12 COTTONWOOD, LLC; SHANE TOWER, LLC; NMC BROOMFIELD,
13 LLC; BROOMFIELD ASSOCIATES, LP; TOWER BROOMFIELD, LLC;
14 NMC MELROSE PARK, LLC,; NMC MELROSE PARK MANAGER, LLC;
15 MELROSE PARK INVESTMENTS L.P.; MELROSE PARK EQUITY, LLC;
16 MELROSE PARK ASSOCIATES, LLC; NMC GROVE MELROSE, LLC;
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17 GMX MELROSE, LLC; NMC MELROSE PARK II, LLC; NMC
18 WASHINGTON, LLC; AU ZONE ARVADA, LLC; AU ZONE
19 INVESTMENTS #2, LP; THOUSAND OAKS MARKETPLACE, LP; J & J
20 BALDWIN PARK LLC,; NEWMAN CAPITAL TEK, LLC; J&J
21 WAREHOUSE LLC; DEVONSHARE RESEDA, LLC; NMC UPLAND,
22 LLC; NORWALK FLALLON, LLC; TOMO GD LLC; UPLAND TERRY,
23 LLC; SOURCE ASSOCIATES, LLC; UPSIDE CRENSHAW HOLDINGS,
24 LLC; UPSIDE CIP, LP; NMMS TWIN PEAKS, LLC; NMC SOUTHGATE,
25 LLC; NMC SOUTHGATE PLAZA, LLC; NJM RIALTO, LLC; NMC
26 PLACENTIA, LLC; AU ZONE PLACENTIA, LLC; AU ZONE MADISON,
27 LLC; NMC MADISON MARKETPLACE, LLC; TRIANGLE TOWN
28 CENTER NW, LLC; NMC STONY ISLAND, LLC
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SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL
1 5. NMMC, NMC South, NMC Mountain States, and the Owner Plaintiffs
2 will be collectively referred to in this Complaint as “Plaintiffs”.
3 6. Plaintiffs purchased, timely paid all premiums, and performed all duties
4 required of them to be performed under a Real Estate America Property Association
5 [“REAPA”] All Risk Property Master insurance policy, certificate number ARP19021
6 [the “Policy”]. (Exhibit 2). Defendant Certain Underwriters of Lloyds of London [the
7 “Underwriters”] is the lead insurer for the Policy. Other participating insurers who
8 are also defendants are: NAVIGATORS SPECIALTY INSURANCE COMPANY;
9 ATEGRITY SPECIALTY INSURANCE COMPANY; HDI GLOBAL SPECIALTY SE;
10 IRONSHORE SPECIALTY INSURANCE COMPANY; ASPEN SPECIALTY
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11 INSURANCE COMPANY; CERTAIN UNDERWRITERS AT LLOYD’S SUBSCRIBING
ECHEVERRIA'"'
12 TO PG1902647, PG1900248, PG1902628, PG1902643, , PG1902626; COLONY
13 INSURANCE COMPANY, previously identified as DOE 13; DOES 16 through 100,
14 inclusive. The insurance defendants will be collectively referred to as “Defendants”
15 or “Insurers” in this Complaint.
16 7. The Evidence of Coverage provided to Plaintiffs by Cardigan General
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17 Insurance Services, LLC identifies the Insureds as “NewMark Merrill, LLC; Landmark
18 Retail Group, LLC; NMC South, LLC; NewMark Merrill Companies Mountain States;
19 NMC Technology Partners LLC: NMC Mountain Tenant Services, LLC; Brightstreet
20 LLC, NewMark Merrill Companies, Inc. and any subsidiary, associated or allied
21 company, corporation or joint venture in which the insured has management control or
22 ownership as now constituted or hereafter is acquired, as the respective interests of each
23 may appear.” (Exhibit 2, Evidence of Coverage, p. 1). NMMC, NMC South, and NMC
24 Mountain States are named Insureds under the Policy, and the Owner Plaintiffs are also
25 Insureds under the Policy as subsidiaries, associated or allied companies, corporations,
26 joint venturers in which NMMC, NMC South or NMC Mountain States has
27 management control or ownership. No other Evidence of Coverage identifying any
28
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SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL
1 other insureds was provided to Plaintiffs at the time the Policy was issued or at any
2 other relevant time.
3 8. Under an “All Risk” policy, all risks of physical loss or damage are
4 covered unless specifically and unambiguously excluded. Stated differently, all non-
5 excluded perils are covered.
6 9. The Policy insures Business Interruption loss “resulting from necessary
7 interruption of business conducted by the Insured including all interdependent loss of
8 earnings between or among companies owned or operated by the Insured caused by
9 loss, damage, or destruction by any of the perils covered herein during the term of this
10 policy to real and personal property as covered herein.” (Exhibit 2, Appendix B, at p. 7,
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11 ¶ 11.) The Contingent Business Interruption coverage limits are $50,000,000.
ECHEVERRIA'"'
12 10. The Policy provides a sublimit of coverage of $1,000,000 per occurrence
13 for Special Perils Business - Contagious Disease Coverage for “an interruption or
14 interference with the business of the insured as a consequence of an order by a
15 competent public authority due to:… iii) the existence or threat of hazardous
16 conditions either actual or suspected at the premises of the Insured.” (Exhibit 2,
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17 Appendix B, at p. 33, ¶ 72(c)(iii)(emphasis added).)
18 11. The Policy also provides a sublimit of coverage for the lesser of
19 $10,000,000 or 30 days per occurrence per insured when “access to real or personal
20 property is prohibited by order of civil or military authority irrespective of whether the
21 property of the Insured shall have been damaged.” (Exhibit 2, Appendix B, at p. 13, ¶
22 20(d)(emphasis added).)
23 12. The Policy further provides a sublimit of coverage for the lesser of
24 $10,000,000 or 30 days per occurrence per insured when “ingress and egress from real
25 or personal property is thereby impaired or hindered irrespective of whether the
26 property of the Insured shall have been damaged.” (Exhibit 2, Appendix B, at p. 13, ¶
27 20(e)(emphasis added).)
28
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SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL
1 13. The Coronavirus [“COVID-19”] originated in China in late 2019, spread to
2 Europe, and eventually came to the United States. On January 30, 2020 the World
3 Health Organization [“W.H.O.”] declared a public health emergency of international
4 concern. By March 11, 2020, the W.H.O. made the assessment that COVID-19 could be
5 characterized as a pandemic. Starting in the middle of March, states throughout the
6 United States, including the states where Plaintiffs’ shopping centers were located,
7 issued governmental orders requiring all non-essential businesses within their
8 jurisdictions to close.
9 14. Plaintiffs’ shopping centers were subject to the specific state governmental
10 orders where each was located. The closure of each shopping center was based on the
~WYt:R,S' FO.fl INSI.J~At-,I CE PO.L tCVH OLOE.R-S
SHERNDFF BIDART
11 governmental orders of the state where the shopping center is located. Plaintiffs’ claims
ECHEVERRIA'"'
12 involve governmental orders from four different states, each of which constitutes a
13 separate occurrence under the Policy.
14 15. The governmental orders restricted access and/or impaired or hindered
15 egress and ingress to Plaintiffs’ properties causing an interruption and suspension to
16 Plaintiffs’ business operations resulting in a covered business income loss. Plaintiffs
R~H
17 incurred additional losses for extra expenses and soft costs covered under the Policy.
18 16. Engaging in the business of insurance in California imposes upon
19 insurers, including non-admitted carriers, the legal obligation to promptly conduct fair,
20 balanced and thorough investigations of all bases of claims for benefits made by their
21 insureds, with a view toward honoring and promptly paying valid claims. As part of
22 these obligations, an insurance company is obligated to diligently search for and
23 consider evidence that supports coverage of the claimed loss, and in doing so must give
24 at least as much consideration to the interests of its insured as it gives to its own
25 interests.
26 17. During the COVID-19 Pandemic, Commissioner Lara issued a notice after
27 the California Department of Insurance “ha[d] received numerous complaints from
28 businesses, public officials, and other stakeholders asserting that certain insurers,
- 10 -
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JACOB WU VS YUYU ZHONG, ET AL.
Jul 23, 2024 |
Peter A. Hernandez
|
Motor Vehicle - Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |
Motor Vehicle - Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |
24PSCV02345
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NGUYEN, JOLENE VS LE, NAM HOANG
Jul 24, 2024 |
Dissolution w/o Minor Children (General Jurisdiction) |
Dissolution w/o Minor Children (General Jurisdiction) |
24STFL07393
Ruling
TISGAR HAROUN VS HOCB RETAIL LLC, ET AL.
Jul 30, 2024 |
24STCV00648
Case Number:
24STCV00648
Hearing Date:
July 30, 2024
Dept:
56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
TISGAR HAROUN,
Plaintiff,
vs.
HOCB RETAIL LLC, HOUSE OF
CB USA, LLC, SIRENS DESIGN
LLC, EGYPTSIA NEVERS, and
DOES 1 through 100, inclusive,
Defendants.
CASE NO.:
24STCV00648
[TENTATIVE] ORDER RE:
MOTION TO COMPEL DEFENDANTS RESPONSES TO FORM INTERROGATORIES GENERAL AND EMPLOYMENT LAW (SET ONE), SPECIAL INTERROGATORIES (SET ONE), AND REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE); REQUEST FOR $1,050.00 IN MONETARY SANCTIONS
Date: July 30, 2024
Time: 8:30 a.m.
Dept. 56
MOVING PARTY: Plaintiff Tisgar Haroun (Plaintiff)
RESPONDING PARTY: Defendants HOCB Retail LLC, House of CB USA, LLC, and Sirens Design LLC (collectively, Defendants)
The Court has considered the moving papers and the declaration filed in response to the motion.
BACKGROUND
This case arises from an employment dispute.
On January 10, 2024, Plaintiff filed a complaint asserting various causes of action, including wrongful termination, discrimination and retaliation.
On May 21, 2024, Plaintiff filed a single motion (the Motion) to compel Defendants responses to the following four (4) sets of discovery served on Defendants: (1) Form Interrogatories General, Set One; (2) Form Interrogatories Employment Law, Set One; (3) Special Interrogatories, Set One; and (4) Request for Production of Documents, Set One (collectively Discovery Requests).
Plaintiff also seeks an award of monetary sanction in the amount of $1,050.
On July 8, 2024, Defendants counsel, Calvin House, submitted a declaration in response to Plaintiffs Motion (House Decl.).
DISCUSSION
Legal Standard
Under Code of Civil Procedure (CCP) section 2030.290, subdivision (b), when a party directs interrogatories towards a party, and that party fails to serve a timely response, the party propounding the interrogatories may move for an order compelling response to the interrogatories.
(CCP § 2030.290, subd. (b).)
A party who fails to provide a timely response waives any objection, including one based on privilege or work product.
(
Id.
, § 2030.290, subd.
(a).)
The moving party need only show that the interrogatories were served on the opposing party, the time has expired to respond to the interrogatories and no responses have been served in order for the court to compel the opposing party to respond.
(
Leach v. Superior Court
(1980) 111 Cal.App.3d 902, 906.)
When a party fails to serve a timely response to an inspection demand, the party making the demand may move for an order compelling a response to the inspection demand.
(CCP § 2031.300, subd. (b).)
A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (
Id.
, § 2031.300, subd. (a).)
Here,
Plaintiff served Defendants with the Discovery Requests on February 19, 2024.
(Declaration of Levon Derkalousdian, Esq. (Derkalousdian Decl.), ¶ 2.)
As of May 17, 2024, Defendants have not provided responses to any of the Discovery Requests.
(Derkalousdian Decl., ¶ 8.)
Plaintiff now moves for an order compelling Defendants to serve responses to the Discovery Requests.
Defendants counsel submitted a declaration on July 8, 2024, stating that Defendant served Plaintiff with verified responses to the Discovery Requests on May 31, 2024, without objections, and attached said discovery responses.
(House Decl., ¶ 2, Exhs. 1-12.)
Accordingly, since verified responses, without objections, have now been served, the Motion is MOOT.
Monetary Sanctions
Nevertheless, the question of sanctions still remains before the Court. [P]roviding untimely responses does not divest the trial court of its authority [to hear a motion to compel responses].
(
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants
(2007) 148 Cal.App.4th 390, 407.)
Even if the untimely response does not contain objections [and] substantially resolve[s] the issues raised by a motion to compel responses&the trial court retains the authority to hear the motion.
(
Id.
, at pp. 408-409.)
This rule gives an important incentive for parties to respond to discovery in a timely fashion.
(
Id.
, at p. 408.)
If the propounding party [does not] take the motion off calendar or narrow its scope to the issue of sanctions, the trial court may deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions.
(
Id.
at p. 409; Cal. Rules of Court, rule 3.1348, subd. (a) [The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed].)
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. (CCP § 2030.290, subd. (c).)
[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. (
Id.
, § 2031.300, subd. (c).)
Here, the declaration submitted by Defendants counsel offers no justification for the delayed responses.
(House Decl.)
Thus, the Court finds that monetary sanctions are warranted.
Plaintiff requests monetary sanctions in the total amount of $1,050, representing two hours spent in preparing the Motion plus an anticipated one hour for preparing a reply and arguing the Motion, based on an hourly rate of $350.
(Derkalousdian Decl., ¶ 9.)
The Court finds that because no reply was prepared and the Motion itself is moot, although it was filed before responses were served, reasonable sanctions are in the amount of $700 for the two hours required to prepare the Motion.
Accordingly, Plaintiffs request for sanctions is granted in part, in the reasonable amount of $700.
Defendants and their counsel are jointly and severally liable for this amount, which is payable to Plaintiff within twenty days of the date of this order.
Improperly Combined Motions
The Court notes, however, that Plaintiff has impermissibly combined motions seeking relief for each discovery device.
A motion must be brought separately for each discovery method at issue.
(Govt. Code, § 70617(a)(4) [setting forth the required filing fee for each motion, application, or any other paper or request requiring a hearing]; The Rutter Group California Practice Guide: Civil Procedure Before Trial, Ch. 8F-7 [8:1136] [Motions to compel compliance with separate discovery requests ordinarily should be filed separately.].)
Plaintiff should have filed four separate motions, each with its own filing fee; instead, Plaintiff filed only one motion and paid one filing fee.
Therefore, Plaintiff is ordered to pay three additional $60 filing fees for a total of $180 as a condition to the granting of this Motion.
The Motion is MOOT; however, monetary sanctions are awarded in favor of Plaintiff in the total amount of $750, to be paid by Defendants and their counsel within 20 days of the date of this Order.
Plaintiff is ordered to pay $180 in previously unpaid filing fees to the Court within twenty days of the date of this order.
Moving Party is ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.
If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 30th day of July 2024
Hon. Holly J. Fujie
Judge of the Superior Court
Ruling
ELIZABETH SHUAI WONG VS FLIPFIT, ET AL.
Aug 09, 2024 |
23STCV30186
Case Number:
23STCV30186
Hearing Date:
August 9, 2024
Dept:
56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
ELIZABETH SHUAI WONG
,
Plaintiff,
vs.
FLIPFIT, f.k.a. HUMANS, INC., a Delaware
corporation, NOORULDEEN ALAARIF,
a.k.a. NOOR AGHA, an individual, and
DOES 1 to 100, inclusive
,
Defendants.
CASE NO.:
23STCV30186
[TENTATIVE] ORDER RE:
MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE
MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIESS, SET ONE
Date: August 9, 2024
Time: 8:30 a.m.
Dept. 56
MOVING PARTY: Plaintiff
Elizabeth Shuai Wong
(Plaintiff)
RESPONDING PARTY: Defendant
Flipfit, fka Humans, Inc. (Defendant)
The Court has considered the moving, opposition and reply papers.
BACKGROUND
This is a representative action filed by Plaintiff on December 11, 2023, seeking recovery of civil penalties under the Private Attorneys General Act of 2004, California Labor Code §2698,
et seq
. (PAGA), for alleged Labor Code violations of:
failure to pay minimum wage, failure to pay overtime wages, failure to provide all required meal periods, failure to authorize or permit all required rest periods, failure to pay all earned wages each pay period, failure to provide accurate wage statements, failure to pay vested vacation wages, failure to reimburse necessary business expenditures, failure to pay all wages due upon separation of employment, failure to maintain an effective Injury and Illness Prevention Program and retaliation for use of Covid-19 supplemental sick pay.
On April 22, 2024, Plaintiff filed a Motion to Compel Defendants Responses to Plaintiffs Requests for Production, Set One (the RFPs Motion), and a Motion to Compel Defendants Responses to Plaintiffs Special Interrogatories, Set One (the SIs Motion) (collectively, the Motions).
Defendant filed a consolidated opposition to the Motions on July 9, 2024, and Plaintiff filed a reply on July 15, 2024.
DISCUSSION
SIs Motion
Under Code of Civil Procedure (CCP) section 2030.290, subdivision (b), when a party directs interrogatories towards a party, and that party fails to serve a timely response, the party propounding the interrogatories may move for an order compelling response to the interrogatories.
(CCP § 2030.290, subd. (b).)
A party who fails to provide a timely response waives any objection, including one based on privilege or work product.
(
Id.
, § 2030.290, subd.
(a).)
The moving party need only show that the interrogatories were served on the opposing party, the time has expired to respond to the interrogatories and no responses have been served in order for the court to compel the opposing party to respond.
(
Leach v. Superior Court
(1980) 111 Cal.App.3d 902, 906.)
Here, Plaintiff served Defendant with Special Interrogatories, Set One (SIs) on January 30, 2024.
(Declaration of Leonard H. Sansanowicz in Support of SIs Motion, ¶ 3.)
Defendant had not served responses to the SIs as of the date of filing of the SIs Motion on April 22, 2024.
(
Id.
, ¶ 11.)
On June 7, 2024, however, Defendant responded to all discovery requests served by Plaintiff, without objections.
(Declaration of Matthew Theriault (Theriault Decl.), ¶ 10.)
Plaintiff does not dispute, and in fact, acknowledges that Defendant did provide objections-free responses to the SIs on June 7, 2024.
(Supplemental Declaration of Leonard H. Sansanowicz in Support of Plaintiffs Reply (Sansanowicz Supp. Decl.), ¶ 22.)
Accordingly, since responses to the SIs, without objections, have now been served, the SIs Motion is MOOT.
To the extent that Plaintiff contends that the responses are insufficient or not otherwise complete or Code-compliant, Plaintiff has forty-five days from the date of this order to file a Motion to Compel Further Discovery Responses.
RFPs Motion
When a party fails to serve a timely response to an inspection demand, the party making the demand may move for an order compelling a response to the inspection demand.
(CCP § 2031.300, subd. (b).)
A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (
Id.
, § 2031.300, subd. (a).)
Here, Plaintiff served Defendant with Requests for Production of Documents, Set One (RFPs) on January 30, 2024.
(Declaration of Leonard H. Sansanowicz in Support of RFPs Motion, ¶ 3.)
Defendant had not served responses to the RFPs as of the date of filing of the RFPs Motion on April 22, 2024.
(
Id.
, ¶ 11.)
On June 7, 2024, however, Defendant responded to all discovery requests served by Plaintiff, without objections.
(Theriault Decl., ¶ 10.)
Additionally, on July 9, 2024, Defendant produced documents.
(
Id.
)
Plaintiff does not dispute, and in fact, acknowledges that Defendant did provide objections-free responses to the RFPs on June 7, 2024.
(Sansanowicz Supp. Decl., ¶ 22.)
Accordingly, since responses to the RFPs, without objections, have now been served, and documents have been produced, the RFPs Motion is MOOT.
To the extent that Plaintiff contends that the responses and documents produced are insufficient or not otherwise complete or Code-compliant, Plaintiff has forty-five days from the date of this order to file a Motion to Compel Further Discovery Responses.
Monetary Sanctions
Nevertheless, the question of sanctions still remains before the Court. [P]roviding untimely responses does not divest the trial court of its authority [to hear a motion to compel responses].
(
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants
(2007) 148 Cal.App.4th 390, 407.)
Even if the untimely response does not contain objections [and] substantially resolve[s] the issues raised by a motion to compel responses&the trial court retains the authority to hear the motion.
(
Id.
, at pp. 408-409.)
This rule gives an important incentive for parties to respond to discovery in a timely fashion.
(
Id.
, at p. 408.)
If the propounding party [does not] take the motion off calendar or narrow its scope to the issue of sanctions, the trial court may deny the motion to compel responses as essentially unnecessary, in whole or in part, and just impose sanctions.
(
Id.
at p. 409; Cal. Rules of Court, rule 3.1348, subd. (a) [The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed].)
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. (CCP § 2030.290, subd. (c).)
[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. (
Id.
, § 2031.300, subd. (c).)
In this case, Defendant asserts that the delayed responses were caused by unexpected medical issues experienced by the previous attorney handling the case. The Court also acknowledges that there have been multiple changes in the counsel representing Defendant. Furthermore, Plaintiff agreed to an extension for Defendant to provide responses by June 7, 2024, and Defendant complied with this deadline.
(Sansanowicz Supp. Decl., ¶¶ 17-22;
Theriault Decl., ¶¶ 8-10.)
Thus, the Court finds that, under the circumstances, there is substantial justification for the delayed responses and that monetary sanctions are not warranted.
Accordingly, no sanctions are imposed.
RULING
The Motions are DENIED as moot.
The requests for monetary sanctions are also DENIED.
Moving Party is ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.
If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 9
th
day of August 2024
Hon. Holly J. Fujie
Judge of the Superior Court
Ruling
SIRANUSH AKLYAN, ET AL. VS STATE OF CALIFORNIA, ET AL.
Jul 26, 2024 |
23BBCV01986
Case Number:
23BBCV01986
Hearing Date:
July 26, 2024
Dept:
NCB
Superior Court of California
County of Los Angeles
North Central
District
Department B
siranush aklyan
,
et al.
,
Plaintiffs,
v.
state of california,
et al.
,
Defendants.
Case No.:
23BBCV01986
Hearing Date:
July 26, 2024
[
TENTATIVE] order RE:
motion to strike
BACKGROUND
A.
Allegations
Plaintiffs Siranush Aklyan, Aper G. Agakhanian, Grigor Choginyan, and Lena Ananyan (Plaintiffs) allege that on February 25, 2023 at approximately 1:30 a.m., Siranush Aklyan was operating her vehicle in the number 1 of 5 lanes on the I-5 northbound freeway.
Aper G. Agakhanian, Grigor Choginyan, and Lena Ananyan were passengers int the vehicle.
Plaintiffs allege that they became trapped underwater following a heavy rainfall on the Golden State I-5 freeway.
Plaintiffs allege that a vehicle
maneuvering the number two (2) lane initiated the passage adjacent to their vehicle, precipitating the generation of a wave, thereby inducing a hydrodynamic disturbance. This perturbation induced an unintended rotational motion of the Plaintiffs' vehicle in a counter-directional manner, leading to its eventual submersion. In a bid to evacuate the vehicle, the Plaintiffs made several unsuccessful attempts to unlatch the doors due to the exerted hydrostatic pressure, rendering them inoperable. Subsequently, the Plaintiffs successfully extricated themselves from the vehicle by manipulating one of the windows and effecting their exit through said window.
(Compl., ¶7.)
Plaintiffs allege that the roadway was dangerous for drivers as the surface had insufficient traction and friction, had improper grooving and treatment of the pavement, used improper materials in the design/construction/maintenance/repair of the roadway, etc.
Plaintiffs allege that Defendants State of California and Caltrans District 7 owned, occupied, leased, used, regulated, controlled, managed, maintained, operated, supervised, repaired, and possessed the portion of the freeway at issue.
The complaint, filed August 25, 2023, alleges causes of action for: (1) statutory liability/dangerous condition of public property; and (2) negligence.
B.
Motion on Calendar
On June 14, 2024, Defendant the People of the State of California, acting by and through the Department of Transportation (Defendant) (erroneously named as State of California and Caltrans District 7) filed a motion to strike portions of the complaint.
On July 15, 2024, Plaintiffs filed an opposition brief.
On July 24, 2024, Defendant filed a reply brief.
DISCUSSION
Defendant moves to strike portions of the complaint at paragraph 24 (page 9, line 5).
The specific language includes references to Government Code, §§ 815.2(a), 820(a), and 840.2.
They argue that they do not dispute that Plaintiffs properly plead a cause of action for dangerous condition of public property, but that the allegations for vicarious liability and negligence by referencing the aforementioned sections is improper.
(Reply at p.5.)
First, Defendant argues that sections 815.2(a) and 820(a) regarding vicarious liability are improper.
Government Code, § 815.2(a) states:
A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.
Government Code, § 820(a) states:
Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.
Defendant argues that Plaintiffs have not specifically identified any employee of Defendant for which Defendant could be vicariously liable and that, even if Plaintiffs were able to identify employees, its employees are immune such that Defendant cannot be vicariously liable.
Defendant cites to
Yee v. Superior Court
(2019) 31 Cal.App.5th 26, 40:
A public entity cannot be held vicariously liable for actions of its employees that are actually acts of the entity itself, albeit performed by necessity by employees or agents. Vicarious liability depends on the employee being independently liable for the act, the entity becoming liable because the employee's act was taken within the scope of his or her employment.
(
Yee
, supra, 31 Cal.App.5th at 40.)
Defendant argues that a claim for dangerous condition of public property can only lie pursuant to Government Code, §§ 830 to 835.4.
Second,
Defendant argues that section 840.2 for direct employee liability does not govern dangerous conditions of public property actions.
Government Code, § 840.2 states:
An employee of a public entity is liable for injury caused by a dangerous condition of public property if the plaintiff establishes that the property of the public entity was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
(a) The dangerous condition was directly attributable wholly or in substantial part to a negligent or wrongful act of the employee and the employee had the authority and the funds and other means immediately available to take alternative action which would not have created the dangerous condition; or
(b) The employee had the authority and it was his responsibility to take adequate measures to protect against the dangerous condition at the expense of the public entity and the funds and other means for doing so were immediately available to him, and he had actual or constructive notice of the dangerous condition under Section 840.4 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
(Govt Code, § 840.2.)
Again, Defendant argues that Plaintiffs have not identified any specific individual against whom a section 840.2 claim could be brought.
Plaintiffs argue that they are not required to plead the name of the specific individuals prior to undergoing discovery.
Plaintiffs rely on
C.A. v. William S. Hart Union High School Dist.
(2012) 53 Cal.4th 861, 872, wherein
the California Supreme Court stated:
The complaint, it is true, does not identify by name or position the District's employees, administrators and/or agents who allegedly failed to properly hire, train and supervise Hubbell. But the District cites no statute or decision requiring a plaintiff to specify
at the pleading stage
which of the defendant's employees committed the negligent acts or omissions for which a public entity is allegedly liable under section 815.2. 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 plaintiff's proof need not be alleged. [Citation.]
(
C.A.
, supra, 53 Cal.4th at 872; see
Perez v. City of Huntington Park
(1992) 7 Cal.App.4th 817, 820821 [
The plaintiff may be unable to identify which employee committed the wrongful act, but this is not fatal to the employer's liability, if the evidence establishes that some employee in the scope of employment committed the wrongful act.].)
Although the complaint does not name specific individuals who were employed by Defendant, the complaint alleges that Defendant and Does 1-100 knew of the dangerous and defective conditions of the roadway, knew that the plan or design of the roadway had become dangerous due to the change in the conditions of the roadway, failed to warn drivers or take other actions, etc.
(Compl., ¶¶14-19.)
Plaintiffs allege that the dangerous conditions and acts/omissions of Defendant and Does 1-100 and their management, administrators, designers, planners, engineers, maintenance personnel, inspectors, and/or other employees, staff, agents, or contractors were done within the course and scope of their duties.
(
Id.
, ¶21.)
At this time, the Court will not preemptively strike references to section 815.2(a) and 820 for vicarious liability as there may be a basis for independent liability against Defendants employee(s) and their actions that were undertaken during the scope of their employment.
The Court finds that the allegations are sufficiently particular for the cause of action to go forward.
Similarly, section 840.2 is for direct liability against an employee of a public entity for a dangerous condition of public property.
Whether Plaintiff is able to discover the names of such employees later, amend the Doe designations, and prove this will have to be determined beyond the pleading stage.
As currently alleged, Plaintiffs have alleged sufficient facts against Defendant and specifically alleged the code sections that are at issue in this action; the identity of the particular individuals employed by Defendant is better left to be determined during the discovery process.
Finally, Defendant argues that public employees are immune from discretionary acts under Government Code, § 820.2, such that it cannot be vicariously liable for the actions or inactions of its employees.
Section 820.2 states:
Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.
While such an exception may exist, at this time, the Court will not prematurely determine if the exception applies to the facts of this case based on the pleadings alone.
Again, this is better addressed upon the consideration of evidence at the motion for summary judgment or trial stage.
The motion to strike is overruled.
CONCLUSION AND ORDER
Defendant the People of the State of California, acting by and through the Department of Transportations motion to strike is overruled.
Defendant is ordered to answer.
Defendant shall give notice of this order.
DATED: July 26, 2024
___________________________
John Kralik
Judge of the Superior Court
Ruling
DAVID ODAY, ET AL. VS 118 WADSWORTH AVENUE HOMEOWNERS ASSOCIATION, ET AL.
Jul 29, 2024 |
23STCV24766
Case Number:
23STCV24766
Hearing Date:
July 29, 2024
Dept:
47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE:
July 29, 2024
TRIAL DATE:
NOT SET
CASE:
David Oday, et al. v. 118 Wadsworth Avenue Homeowners Association, et al.
CASE NO.:
23STCV24766
MOTION TO DISSOLVE PRELIMINARY INJUNCTION
MOVING PARTY
: Defendant 118 Wadsworth Avenue Homeowners Association
RESPONDING PARTY(S)
: Plaintiffs David Oday and Lakota Patrick Ford
CASE HISTORY
:
·
10/11/23: Complaint filed.
·
01/10/24: First Amended Complaint filed.
·
03/01/24: Cross-Complaint filed.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a breach of contract and habitability defect action. Plaintiffs allege that Defendants refused to replace the roof of Plaintiffs condominium, causing extensive water damage and mold throughout the unit. Plaintiffs allege that Defendants improperly issued special assessments in violation of the operative covenants, conditions, and restrictions on the property, and retaliated against Plaintiffs for raising these issues.
Defendant 118 Wadsworth Avenue Homeowners Association moves to dissolve the preliminary injunction entered on February 22, 2024 because of Plaintiffs failure to post the bond required.
TENTATIVE RULING:
Defendants Motion to Dissolve Preliminary Injunction is DENIED, as Plaintiff David Oday has served and filed an agreement authorizing the deposit to be applied to enforce the liability of the principal, pursuant to Code of Civil Procedure section 995.710(c).
DISCUSSION:
Defendant 118 Wadsworth Avenue Homeowners Association moves to dissolve the preliminary injunction entered on February 22, 2024 because of Plaintiffs failure to post the bond required.
Legal Standard
Code of Civil Procedure section 533 states:
In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.
(Code Civ. Proc. § 533.) Modification of a preliminary injunction rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case. (
Union Interchange, Inc. v. Savage
(1959) 52 Cal.2d 601, 606.) The party seeking modification has the burden of proving that the request is justified. (See
Loeffler v. Medina
(2009) 174 Cal.App.4th 1495, 1504.)
Analysis
Defendant 118 Wadsworth Avenue Homeowners Association moves to dissolve the preliminary injunction entered on February 22, 2024 on the grounds that Plaintiffs failed to post the undertaking of $70,416.09 ordered by the Court. (See February 22, 2024 Minute Order.)
Plaintiffs, in opposition, state that payment in the amount specified by the Courts order was deposited with the Court on June 26, 2024, with notice given to Defendant the next day. (Declaration of Scott J. Kalter ISO Opp. Exhs. 1-2.) In reply, Defendant contends that Plaintiffs deposit of the funds to the Court is effective as a posting of a bond under Code of Civil Procedure section 995.710, but only if the deposit is accompanied by an agreement executed by the principal authorizing the officer to collect, sell, or otherwise apply the deposit to enforce the liability of the principal on the deposit. (Code Civ. Proc. § 995.710(c).) Defendant contends that Plaintiffs have not executed such an agreement, and, therefore, that the injunction should be dissolved.
The Court concurs with Defendant that an authorization to dispose of the funds to satisfy liability is required for Plaintiffs deposit to be considered posting of the bond under section 995.710. In response to the Courts prior tentative ruling, Plaintiff David Patrick Oday has submitted an agreement authorizing the deposit to be applied to enforce the liability of the principal, pursuant to Code of Civil Procedure section 995.710(c). Accordingly, the Court will deny the motion to dissolve the preliminary injunction.
CONCLUSION
:
Accordingly, Defendants Motion to Dissolve Preliminary Injunction is DENIED given that Plaintiff David Patrick Oday has served and filed an agreement authorizing the deposit to be applied to enforce the liability of the principal, pursuant to Code of Civil Procedure section 995.710(c).
Moving party to give notice.
IT IS SO ORDERED.
Dated: July 29, 2024 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at
Smcdept47@lacourt.org
by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
Ruling
KPG HEALTHCARE LLC, AN ARIZONA LIMITED LIABILITY COMPANY VS SAVANT CARE INC., A CALIFORNIA NONPROFIT CORPORATION, ET AL.
Jul 30, 2024 |
23STCV29725
Case Number:
23STCV29725
Hearing Date:
July 30, 2024
Dept:
48
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
KPG HEALTHCARE LLC,
Plaintiff,
vs.
SAVANT CARE INC., et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
CASE NO.: 23STCV29725
[TENTATIVE] ORDER GRANTING PLAINTIFFS MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES; GRANTING PLAINTIFFS MOTION TO DEEM RFAs ADMITTED
Dept. 48
8:30 a.m.
July 30, 2024
On
December 5, 2023, Plaintiff KPG Healthcare LLC filed this action against Defendant Mindful Values and others.
On March 14, 2024, Plaintiff served Form Interrogatories, Set One and Requests for Admission on Defendant.
After an extension of time, the deadline for Defendant to respond was May 31, 2024, but to date, no responses have been received.
On June 25 and 26, 2024, Plaintiff filed motions to compel responses to the Form Interrogatories and to deem the RFAs admitted.
Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses.
(Code Civ. Proc., §§ 2030.290, 2031.300;
Healthcare Consulting, Inc. v. Pacific Healthcare Consultants
(2007) 148 Cal.App.4th 390, 403.)
A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product.
(Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).)
When a party fails to timely respond to a request for admission, the propounding 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 party who failed to respond waives any objections to the demand, unless the court grants them relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the partys failure to respond was the result of mistake, inadvertence, or excusable neglect.
(Code Civ. Proc., § 2033.280, subds. (a)(1)-(2).)
The court shall grant a motion to deem admitted requests for admissions, 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).)
Defendant filed no opposition to these motions and did not serve timely responses.
It does not appear that Defendant served substantially compliant responses prior to the hearing.
Accordingly, the motions are GRANTED.
Defendant is ordered to provide verified responses, without objections, to Form Interrogatories, Set One within 30 days.
The Requests for Admission served on March 14, 2024 are deemed admitted.
The request for sanctions is granted in part.
Defendants counsel is ordered to pay total sanctions of $2,000.00 to Plaintiff within 30 days.
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.
If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.
Dated this 30th day of July 2024
Hon. Thomas D. Long
Judge of the Superior Court
Ruling
ARACELI ACOSTA VS JEFFREY H. SCHWARTZ, ET AL.
Jul 26, 2024 |
22STCV01060
Case Number:
22STCV01060
Hearing Date:
July 26, 2024
Dept:
32
PLEASE NOTE
:
Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at
sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.
Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court
.
TENTATIVE RULING
DEPT
:
32
HEARING DATE
:
July 26, 2024
CASE NUMBER
:
22STCV01060
MOTIONS
:
Motion to Set Aside Default
MOVING PARTY:
Defendant Akikur R. Mohammad
OPPOSING PARTY:
Plaintiff Araceli Acosta
BACKGROUND
On January 11, 2022,
Plaintiff Araceli Acosta (Plaintiff) filed a wrongful death action.
On August 24, 2023, Plaintiff filed an amendment to the complaint, substituting Defendant Akikur Mohammad (Defendant) as Doe 2.
On December 5, 2023, Plaintiff filed a proof of service of the complaint on Defendant. The proof of service shows that the summons and complaint were served at 7018 Elmsbury Lane, West Hills via substitute service on September 13, 2023 to Irina Chemeleva. Copies of the summons and complaint were also mailed to the address on September 18, 2023.
On December 5, 2023, default was entered against Defendant.
On June 13, 2024, Defendant filed the instant motion to set aside the default based on Code of Civil Procedure section 473.5. Plaintiff opposes. No reply has been filed.
LEGAL STANDARD
Section 473.5
Under Code of Civil Procedure section 473.5, [w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. ¿This motion must be brought within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered. (Code Civ. Proc. § 473.5(a).)
¿¿¿
The focus of section 473.5 is whether the defaulting party obtained actual notice in time to defend the action.¿Discretionary relief based upon a lack of actual notice under section 473.5 empowers a court to grant relief from a default judgment where a valid service of summons has not resulted in actual notice to a party in time to defend the action.¿ (
Anastos v. Lee
(2004) 118 Cal.App.4th 1314, 1319.)¿A party seeking relief under section 473.5 must provide an affidavit showing under oath that his or her lack of actual notice in time to defend was not caused by inexcusable neglect or avoidance of service.¿(
Ibid
.; Code Civ. Proc. § 473.5(b).)¿The term actual notice means genuine knowledge of the party litigant.¿(
Rosenthal v. Garner
(1983) 142 Cal.App.3d 891, 895.)¿
The party seeking relief must serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. (
Code Civ. Proc. § 473.5(b).)
EVIDENTIARY OBJECTIONS
The Court overrules Plaintiffs objection number 1 and declines to rule on objection 2 as it has no effect on the ruling herein.
DISCUSSION
As an initial matter, the record does not show that Plaintiff served written notice of the entry of default on Defendant. Though the opposition argues that Plaintiff sent Defendant notice of the Request for Default on November 29, 2024 and December 5, 2024, she does not show that she served notice that the default was entered. Therefore, the deadline for bringing this motion under section 473.5 is two years after the default was entered: December 5, 2025. Since Defendant filed this motion on June 13, 2024, it is timely.
Secondly, to the extent Defendant argues that Plaintiff did not use reasonable diligence to attempt personal service, the Court notes that Defendant provides authority that two or three attempts are sufficient. (Motion, 8.) Here, the proof of service shows that the process server made three attempts on consecutive days and at different times of the day before substitute service was made. Therefore, substitute service was sufficient.
Turning to the main issue of actual notice, Defendant offers the declaration of Irina Shmeleva, his wife, who received the papers during the substitute service. She declares, under penalty of perjury, that from August 9, 2022 to May 8, 2023, Defendant was incarcerated for financial crimes. (Shmeleva Decl. ¶ 3.) She states that she became angry with him for the crimes and resulting financial hardship on their family. When he returned home, she would not speak to Defendant and did not see him even though they were living in the same house. She declares the following: I was handed legal papers for my husband on September 13, 2023 was still so upset at my husband that I put the papers somewhere and promptly forgot about them. I did not inform my husband that I received documents for him. One of our daughters resides with us and she was the person in our family that picked up the mail. She never told me that any mail arrived for my husband. (
Id.
¶ 5-6.)
Defendants declaration also confirms that his relationship with his wife was fractured following his release from prison. (Mohammad Decl. ¶ 3.) He further declares:
In April 2024 I received a copy of a document from plaintiff's attorney applying for a default judgment against me. I was shocked and asked my wife if she knew anything about it and at first she said she knew nothing about it. A little later, she brought me the documents and told me that she was sorry but that she put them down and then forgot about them since we were still having relationship problems at that time. I knew nothing about the attempts at service since I was not home when the attempts were made and my wife did not tell me that someone was looking for me. I immediately contacted my insurance carrier but learned that the claim was denied as it was not presented during the period of time that I was insured.
(Mohammad Decl. ¶¶ 4-6.)
In opposition, Plaintiff argues that Defendant has not set forth enough evidence showing he lacked actual notice of the lawsuit. However, based on the declarations, Defendant has shown that his lack of actual notice was not caused by inexcusable neglect or avoidance of service. Plaintiff provides no evidence to the contrary. As a result, the motion to set aside the default under section 473.5 is granted.
[1]
CONCLUSION AND ORDER
Therefore, the Court GRANTS Defendants Motion to
Set Aside the Default entered on December 5, 2023.
Defendant shall file and serve his proposed answer within 10 days.
The matter is set for a Final Status Conference on March 3, 2025 in Department 32 of the Spring Street Courthouse.
Trial is set for March 17, 2025 at 8:30 a.m. in Department 32 of the Spring Street Courthouse.
Defendant to provide notice and file a proof of service of such.
[1]
Though Defendant also mentions arguments surrounding Code of Civil Procedure section 364, a settlement in this case, and the statute of limitations, these appear to demonstrate that Defendant has a meritorious defense and are not argued to be relevant for the inquiry to set aside the default. As a result, the Court will not address these arguments at this time.
Ruling
THE MANIJEH SHAMS TRUST, ET AL. VS FARIBA JAVAHERPOUR
Jul 26, 2024 |
22BBCV00226
Case Number:
22BBCV00226
Hearing Date:
July 26, 2024
Dept:
A LOS ANGELES SUPERIOR COURT
NORTH CENTRAL DISTRICT - BURBANK
DEPARTMENT A
TENTATIVE RULING
JANUARY 25, 2024
MOTION TO ENFORCE SETTLEMENT AGREEMENT
Los Angeles Superior Court Case # 22BBCV00226
MP:
THE MANIJUE SHAMS TRUST AND MANIJEH SHAMS (Plaintiff)
RP:
FARIBA JAVAHEROUR, ET AL (Defendant)
All parties are requested to appear either in person or via LA Court Connect to address the tentative ruling.
Brief Summary of Requested Relief
The Court has read and considered Plaintiffs Motion to Enforce Settlement, Defendants opposition, as well as Defendants Further Opposition to the Motion.
The parties entered into a settlement as set forth in Plaintiffs moving papers, which included a CCP §664.6 provision.
Defendant has declined to sign the written settlement agreement until Plaintiff amends her trust to reflect that the settlement of $60,000 will inure to the benefit of the Plaintiffs grandchildren, specifically the children of Plaintiffs deceased son, Massoud Bahmanyar.
The parties appear to be at an impasse.
Ruling on Motion to Enforce Settlement
Pursuant to CCP §664.6, a Court has continuing jurisdiction to enforce a settlement agreement.
As such, the Court exercises its authority under CCP §664.6 and orders the following be completed within the next 30 days:
1.
Plaintiff Manijeh Shams is to create a new irrevocable trust: The Manijeh Shams Irrevocable Grandchild Trust in which she is the primary beneficiary, and the children of Massoud Bahmanyar are the contingent beneficiaries.
Manijeh Shams shall be the initial trustee, with a successor trustee to be named by Ms. Shams in the trust.
2.
The terms of the trust will include that the $60,000 settlement, as well as any earnings, may be used for the direct support of the settlor, and upon settlors death will inure to the benefit of Massoud Bahmanyars children in equal parts
per stirpes
. In the event that any grandchild predeceases the settlor, that grandchilds share shall inure to the grandchilds children
per stirpes.
In the event that a deceased grandchild has no children, the share shall be divided equally among the remaining living grandchildren.
3.
Defendant Fariba Javaherpour shall deposit the total sum of $60,000 into the newly established trust within ten days of being informed that the new irrevocable trust has been established and a bank account in the name of the new trust is set up.
4.
The Manijeh Shams Irrevocable Grandchild Trust shall be subject to Part 4, Chapter 1 of the California Probate Code, beginning at §16060 et seq., including but not limited, to §§16062 and 16063.
Upon request from any contingent beneficiary, the contingent beneficiaries shall have a right directly, or through their representative if minors, to have an accounting no more than annually.
The accounting may be informal, and the cost of the accounting shall be incurred by the trust.
Any contingent beneficiary has the right to petition the court for a formal accounting if there is a prima facie basis to believe that the informal accounting does not properly reflect the trust distributions and expenses.
5.
The individual trustee shall not be entitled to compensation for administration of the trust, nor shall any bond be required of any individual trustee.
A professional or commercial trustee shall be entitled to compensation as permitted by law.
Manijeh Shams may propose specific language to the Court if necessary, with objections and alternative language being proposed by Defendant Fariba Javaherpour.
The Court sets a Status Conference Re: Settlement Agreement compliance for August 8, 2024 at 10:00 AM.
ORDER
The Plaintiffs Motion to Enforce the Settlement Agreement c
ame on for hearing on July 25, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:
THE MOTION TO ENFORCE THE SETTLEMENT AGREEMENT IS GRANTED.
PLAINTIFF TO CREATE NEW IRREVOCABLE TRUST CONSISTENT WITH THE TERMS OF THE SETTLEMENT AGREEMENT MEMORIALIZED IN THE COURTS PRIOR MINUTE ORDER.
NEW IRREVOCABLE TRUST SHALL CONTAIN THE TERMS SET FORTH IN THIS RULING.
DEFENDANT IS TO FUND THE TRUST WITHIN 10 DAYS OF BEING NOTIFIED OF THE NEW TRUSTS CREATION AND BEING PROVIDED BANKING INFORMATION IN THE NAME OF THE NEW TRUST.
STATUS CONFERENCE RE: SETTLEMENT AGREEMENT COMPLIANCE IS AUGUST 8, 2024 AT 10:00 AM.
UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF TO GIVE NOTICE.
IT IS SO ORDERED.
DATE: July 26, 2024
_______________________________
F.M. TAVELMAN, Judge
Superior Court of California
County of Los Angeles
Ruling
HAMID REZA MIRSHOJAE, ET AL. VS 5975-5999 TOPANGA CANYON BLVD LLC, ET AL.
Jul 26, 2024 |
21STCV37556
Case Number:
21STCV37556
Hearing Date:
July 26, 2024
Dept:
F43 Dept. F43
Date: 7-26-24
Case #21STCV37556,
Hamid Reza Mirshojae, et al. vs. 5975-5999 Topanga Canyon Blvd LLC, et al.
Trial Date: N/A
MOTION FOR ATTORNEY FEES
MOVING PARTY: Plaintiffs Hamid Reza Mirshojae and Woodland Hills Medical Clinic II, Inc.
RESPONDING PARTY: Defendants 5975-5999 Topanga Canyon Blvd, LLC and Ahang Mirshojae
RELIEF REQUESTED
Plaintiffs are requesting attorney fees in the amount of $
619,675
, plus $17,036.01 in costs, from Defendants.
RULING
: Motion for attorney fees is granted at a reduced amount. No costs will be awarded at this time.
SUMMARY OF ACTION
Plaintiff Hamid Reza Mirshojae (Hamid) and Defendant Ahang Zarin Mirshojae (Ahang) were formerly married and were engaged in extensive litigation against each other prior to 2017. The assets in dispute were in excess of $20 million. At mediation, Hamid and Ahang entered a complex settlement agreement. Immediately after, Hamid alleges that Ahang breached the settlement agreement, and he was forced to incur attorney fees to enforce various terms of the agreement. Eventually, Hamid filed the current suit to enforce the settlement agreement on October 12, 2021.
Ahang accused Hamid and his counsel of inducing her to sign the settlement agreement and sued him for $7 million in damages. This Court eventually struck Ahangs complaint based on Plaintiffs anti-SLAPP motion and determined that Ahang was a vexatious litigant. After this ruling, Ahang attempted to disqualify Hamids lead counsel, though that motion was rejected. Hamid alleges that he has incurred significant legal fees over the course of this litigation.
Finally, after two years of litigation, the parties settled via a 998 Offer on November 17, 2023. The 998 Offer required Defendants to pay Plaintiffs $270,000 and reasonable fees and costs as determined by the Court. Plaintiffs are requesting attorney fees pursuant to the part of the 998 Offer that allows for reasonable fees to be paid.
Plaintiffs are requesting $619,675 in attorney fees from Defendants. Plaintiffs argue in their motion that the attorney fees and hourly rates are reasonable. Plaintiffs evidence in support of their request for attorney fees included a declaration from their attorney, Christopher Beatty, and billing statements (with some redactions) that show which attorney worked on a task, what the task was, and how much time was spent on the task. (Beatty Decl., Ex. H.) The Beatty Declaration also includes a table which shows the hourly rates of the attorneys who worked on the case and their hourly rates at different times. (Beatty Decl., ¶ 35.)
Christopher Beattys hourly rates were $950 (for 2.5 hours in 2021), $975 (for 19.2 hours in 2022), and $1,300 (for 1.5 hours in 2022 and 71.6 hours in 2023). Tami K. Sims hourly rate was $1,115 (for 83.4 hours in 2023). Trevor T. Garneys hourly rate was $955 (for 87.8 hours in 2023). Arron J. Paks hourly rate was $705 (for 277.3 hours in 2023). Minh-Van Dos hourly rates were $795 (for 0.5 hours in 2021) and $840 (for 76.1 hours in 2022). Benjamin Mandels hourly rate was $595 (for 89.6 hours in 2022). Finally, Scarlet Speakmores hourly rate was $350 (for 38.8 hours in 2022).
The total lodestar was calculated by multiplying each of these attorneys hourly rate by their hours worked then adding them all together. The total hours worked for the attorneys totaled 748.3. The total lodestar amount, as previously noted, is $619,675.
Plaintiffs have also requested costs in the amount $17,036.01. However, costs are awarded pursuant to California Rules of Court, Rule 3.1700. If Plaintiffs wish to request costs, Plaintiffs should file a memorandum of costs at the appropriate time.
Defendants Evidentiary Objections to the Declaration of Keith M. Maziarek:
Sustained: Entire Declaration (irrelevant), Paragraph 11
Overruled: None
Plaintiffs Evidentiary Objections to the Declaration of June D. Coleman and the Declaration of Raffi Kassabian: The individual evidentiary objections presented by Plaintiffs to these two declarations are not consecutively numbered. Typically, when written objections to evidence are filed, the written objection must be number consecutively. (See Cal. Rules of Court Rule 3.1354 (applies to written objections to evidence for summary judgment motions).) While Plaintiffs listed them by paragraph number from the declarations, this is not necessarily effective, because in some instances Plaintiffs objected to different sentences from the same paragraph and listed them separately with the same paragraph number. The Court will not rule on the individual evidentiary objections based on this procedural deficiency. Plaintiffs have objected to the entire Coleman Declaration on the basis that it is improper expert testimony because Coleman has not shown any special knowledge, skill, etc., related to billing for these types of cases pursuant to Evidence Code § 720. The Court has determined that Coleman has sufficiently demonstrated her special knowledge as a fee expert with this declaration and her recently submitted supplemental declaration. Plaintiffs objection to the entire Coleman Declaration is overruled.
On April 9, 2024, a hearing was held on Plaintiffs motion for attorney fees. That same day, the Court issued a ruling on the submitted matter requesting that the parties submit additional briefing and that Plaintiffs submit invoices that do not redact the lawyers hourly rates or the amounts billed, along with supplemental points and authorities supporting their fee requests in light of that information.
On May 24, 2024, Plaintiffs submitted their supplemental brief. In their brief, Plaintiffs argue that the Court should award standard hourly rates and that the fees sought for all tasks are reasonable. Plaintiffs submitted new billing records that still contain some redactions, but they do not redact the lawyers hourly rates or the amounts billed.
On June 25, 2024, Defendants submitted their supplemental opposition brief. Defendants argue that the Court should significantly reduce the fees requested by Plaintiffs. Defendants also argue that the Court should consider Defendants expert declaration. Defendants also acknowledge that Plaintiffs conceded that the actual hourly rates and amounts billed are not privileged.
ANALYSIS
A prevailing party is entitled to recover its attorneys fees when authorized by contract, statute, or law. (See CCP § 1033.5(a)(10); Cal. Civ. Code § 1717(a).) A successful party means a prevailing party, and [a party] may be considered prevailing parties for attorneys fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. (
Bowman v. City of Berkeley
(2005) 131 Cal.App.4th 173, 178.)
Plaintiffs are the prevailing party by virtue of the fact that the parties settled in Plaintiffs favor via the 998 Offer. Plaintiffs have requested a total of $619,675 in attorney fees.
Defendants previously opposed Plaintiffs motion on the basis that Plaintiffs agreed only to recover fees actually incurred and according to proof in the 998 Offer, and Defendants argued that Plaintiffs have not provided this proof. However, this argument was resolved with Plaintiffs supplemental brief, as Plaintiffs have now provided unredacted hourly rates and amounts billed.
Plaintiffs attorney Christopher D. Beatty acknowledges in his supplemental declaration that the actual amount charged to the client was $543,156. (Beatty Supp. Decl., ¶ 5.) Defendants argue in their supplemental opposition that this should be the baseline from which any reductions in the requested amount should be made. Defendants argue that Plaintiffs should only be able to recover fees actually incurred because that is what the 998 Offer between the parties allowed. (See
San Dieguito Pship, L.P. v. San Dieguito River Valley Regl Open Spake Park Joint Powers Auth.
(1998) 61 Cal.App.4th 910, disapproved on other grounds by
PLCM Group v. Drexler
(2000) 22 Cal.4th 1084.) The Court agrees. Plaintiffs should only recover the fees actually incurred, which in this case is, at a maximum, $543,156.
Next, Defendants contest the reasonableness of the fees incurred by Plaintiffs.
In determining the reasonableness of fees, courts look to the factors from
Church of Scientology v. Wollersheim
(1996) 42 Cal.App.4th 628, disapproved on other grounds by
Equilon Enters. v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 68 n.5. The factors from
Wollersheim
are (1) the amount of money involved in the litigation; (2) the nature of the litigation and its difficulty and the intricacies and importance of the litigation; (3) the skill required and employed in handling the litigation, the necessity for skilled legal training and ability in trying the case, and counsels education and experience in the particular type of work involved; (4) the attention given to the case; (5) the success of the attorneys efforts; and (6) the time consumed by the litigation. (
Id.
)
Plaintiffs argued in the initial motion that they met all of these factors. First, Plaintiffs argue that large amounts of money were involved in this litigation because of Ahangs cross-complaint for $7 million and the fact that the original settlement agreement divided the parties assets that were valued in excess of $20 million. Next, for the second factor, Plaintiffs argue that the nature of this case was an emotional case between two ex-spouses and business partners with significant assets at issue, and Ahang had been determined by the Court to have engaged in fraud. For the third factor, Plaintiffs argued that this was a complex case that required an experienced legal team to handle it, and Beattys team were the logical ones to handle it because Beatty had handled the cases that led to the settlement agreement. For the fourth factor, Plaintiffs argued that their counsel had to devote significant attention to this case. For the fifth factor, Plaintiffs argued that their counsel had success throughout the case in prevailing on the anti-SLAPP motion and defeating the attempt to disqualify Beatty, as well as being the prevailing party for the 998 Offer. Finally, for the sixth factor, Plaintiffs argued that this case consumed considerable time and went on for two years and would have gone on much longer if Hamid had not accepted the 998 Offer.
Defendants argue that the attorney fee award should be reduced as the hours billed are excessively unreasonable. A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether. (
Chavez v. City of Los Angeles
(2010) 47 Cal.4th 970, 990-991(citing
Serrano v. Unruh
(1982) 32 Cal.3d 621, 635).)
This Court previously acknowledged in its tentative ruling the apparent excessive billing for several of Plaintiffs motions: the Anti-SLAPP Motion (160.5 hours), Opposition to Motion to Disqualify (96.5 hours), Demurrer (90.2 hours), Motion for Attorney fees re Anti-SLAPP Motion (49 hours), and Motion to Quash Summons (38.6 hours). This Court also suggested reducing the time spent on those motions by 25%. Defendants argue that they should be reduced by at least 60% because they are beyond excessive.
Other specific tasks that Defendants argue were excessively billed were the 4.0 hours for a half-page notice of continuance; 12.1 hours for a subpoena with 8 document requests; 14.7 hours spent on two identical subpoenas with 6 document requests; 22.3 hours spent on 3 page ex parte application and 2 page declaration to advance a hearing date; 18.3 hours preparing for and drafting a mediation brief; and 10.3 hours on generic case analysis over 48 entries. Defendants argue that the Court should also take into account all of these minor issues in awarding the attorney fees.
Defendants also argue that the at least 209.5 hours spent in relation to the Anti-SLAPP motion was beyond excessive and should be reduced by more than 25%. Defendants cite a case where the Court of Appeal affirmed a reduction in attorney fees and costs related to an Anti-SLAPP motion from $112,288.63 to just $23,000, with the Court of Appeal stating that claiming 200 hours of work & seems excessive and that such a motion should not have been such a monumental undertaking. (
Maughan v. Google Technology, Inc.
(2006) 143 Cal.App.4th 1242, 1248-1252.) Defendant
Finally, Defendants argue that the Court should consider Defendants expert declaration because it would be admissible because the experts declaration included descriptions of her experience as a fee expert. (See Coleman Decl., ¶¶ 3-10, 14, and 15.) The Court previously sustained Plaintiffs objections to the Coleman Declaration, but in light of Defendants arguments and Colemans supplemental declaration, the Court will consider Colemans declaration.
In light of all of the foregoing, the Court believes that some reduction of the requested fees is necessary. Both the previously indicated major issues and the minor issues that Defendants have brought to the attention of the Court should be reduced.
The amount that the Court will start with is $543,156 in fees actually incurred. The Court previously considered reducing certain fees by 25%. Defendants request an across the board reduction of 60%, which would be $217,262 in fees awarded. Alternatively, Defendants request that the Court do an across the board reduction of 25%, since that percentage is what the Court previously found was appropriate. Based on both the major and minor issues with the billing records, the Court agrees that an across the board reduction is appropriate. The Court also finds that an across the board reduction of 25% is reasonable. That would make the fee award $407,367.
The Court will award this amount. Plaintiffs have demonstrated that their attorneys hourly rates are rates are reasonable. Furthermore, this was a complex class requiring a lot of motion practice, particularly where the Anti-SLAPP motion is concerned. Plaintiffs have provided proof of the amount of time spent on the case through the now-unredacted billing statements.
CONCLUSION
Plaintiffs motion for attorney fees is granted in the amount of $407,367.00. Costs should be requested in a memorandum of costs.
Moving party to give notice.
Document
ERIN KRAKOW VS TESLA, INC.
Jul 02, 2024 |
Daniel M. Crowley
|
Product Liability ? Song-Beverly Consumer Warranty Act¿(Lemon Law) (General Jurisdiction) |
Product Liability ? Song-Beverly Consumer Warranty Act¿(Lemon Law) (General Jurisdiction) |
24STCV16413
Document
MICHAEL KORS VS ARROW INN
Jul 15, 2019 |
Georgina T. Rizk
|
Other Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |
Other Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |
19STCV24563
Preview
1 MICHAEL J. BIDART #60582 RICARDO ECHEVERRIA #166049 2 KRISTIN HOBBS #277843 3 SHERNOFF BIDART ECHEVERRIA LLP 4 600 South Indian Hill Boulevard Claremont, California 91711 5 Telephone: (909) 621-4935 6 Facsimile: (909) 625-6915 7 Attorneys for Plaintiffs 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF LOS ANGELES ~WYt:R,S' FO.fl INSI.J~At-,I CE PO.L tCVH OLOE.R-S SHERNDFF BIDART 11 ECHEVERRIA'"' 12 NEWMARK MERRILL COMPANIES, Case No.: 20STCV49581 13 INC., a California Company; NMC SOUTH, [Hon. Robert S. Draper] LLC, a California Limited Liability 14 Company; NEWMARK MERRILL SECOND AMENDED COMPLAINT 15 MOUNTAIN STATES, LLC, a California AND DEMAND FOR JURY TRIAL Electronically Received 04/22/2022 12:41 PM 16 Limited Liability Company; NMC BROADWAY, LLC, a California Limited 1. BREACH OF THE IMPLIED R~H 17 Liability Company; CHINO RETAIL, LLC, COVENANT OF GOOD FAITH AND 18 a California Limited Liability Company; FAIR DEALING CHINO HILLS RETAIL II, LLC, a 19 California Limited Liability Company; 2. BREACH OF CONTRACT 20 NMC ANAHEIM, LLC, a California 21 Limited Liability Company; ANAHEIM ISLAND PARTNERS, LLC, a California 22 Limited Liability Company; RLM FAMILY 23 PROPERTIES, LLC, a California Limited Liability Company; F&F INVESTMENTS, 24 LLC, a California Limited Liability 25 Company; EAST ANAHEIM 26 ACQUISITION, LLC, a California Limited Liability Company; MESA TOWN 27 CENTER, LLC, a California Limited 28 Liability Company; ANAHEIM FRIES -1- SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL 1 PARTNERS, LLC, a California Limited Liability Company; BRISTOL CHINO II, 2 LLC, a California Limited Liability 3 Company; NMC SANTA ANA, LLC, a 4 California Limited Liability Company; GINSBORG BOYS, LLC, a California 5 Limited Liability Company; NJL 6 CORONA, LLC, a California Limited Liability Company; FRANK MISSION 7 MARKETPLACE, LLC, a California 8 Limited Liability Company; NORWALK 9 TOWN SQUARE MANAGEMENT, INC., a California Corporation; JAVID LEVIAN – 10 NORWALK LLC, a California Limited ~WYt:R,S' FO.fl INSI.J~At-,I CE PO.L tCVH OLOE.R-S SHERNDFF BIDART 11 Liability Company; SHOKRAOLAH ECHEVERRIA'"' LEVIAN – NORWALK LLC, a California 12 Limited Liability Company; JAMSHID 13 LEVIAN – NORWALK LLC, a California 14 Limited Liability Company; MANOOCHEHR LEVIAN – NORWALK 15 LLC, a California Limited Liability 16 Company; LEVIAN FAMILY – NORWALK LLC, a California Limited Liability R~H 17 Company; HEKMATRAVAN FAMILY - a 18 California Limited Liability Company; 19 ARLINGTON SQUARE, L.P., a California Limited Partnership; NMC GROVE 20 ONTARIO, LLC, a California Limited 21 Liability Company; NMC GROVE ONTARIO EPL, a Delaware Limited 22 Liability Company; NMC GROVE 23 ONTARIO PB, LLC, a Delaware Limited Liability Company; NMC GROVE 24 ONTARIO MC, LLC, a Delaware Limited 25 Liability Company; NMC GROVE 26 ONTARIO PDA, LLC, a Delaware Limited Liability Company; SHANE UNIVERSITY, 27 LLC, a Delaware Limited Liability 28 Company; NEWMARK UNIVERSITY, LLC, -2- SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL 1 a California Limited Liability Company; NMC STRATFORD, LLC, a Delaware 2 Limited Liability Company; CHINO 3 STRATFORD, LLC, an Illinois Limited 4 Liability Company; GMX REAL ESTATE GROUP, LLC, an Illinois Limited Liability 5 Company; SHANE STRATFORD, LLC, an 6 Illinois Limited Liability Company; NMC WHITTIER, LLC, a California Limited 7 Liability Company; NMC TOWER, LLC, a 8 California Limited Liability Company; 9 WHITTIER GATEWAY, L.P, a California Limited Partnership; PEARL WHITTTIER 10 PAINTER, LLC, a California Limited ~WYt:R,S' FO.fl INSI.J~At-,I CE PO.L tCVH OLOE.R-S SHERNDFF BIDART 11 Liability Company; NMC WHITTIER II, ECHEVERRIA'"' LLC, a California Limited Liability 12 Company; NMC COTTONWOOD, LLC, a 13 California Limited Liability Company; 14 SHANE TOWER, LLC, a Delaware Limited Liability Company; NMC BROOMFIELD, 15 LLC, a California Limited Liability 16 Company; BROOMFIELD ASSOCIATES, LP, a California Limited Partnership; R~H 17 TOWER BROOMFIELD, LLC a Delaware 18 Limited Liability Company; NMC 19 MELROSE PARK, LLC, a California Limited Liability Company; NMC 20 MELROSE PARK MANAGER, LLC, a 21 California Limited Liability Company; MELROSE PARK INVESTMENTS L.P., a 22 California Limited Partnership; MELROSE 23 PARK EQUITY, LLC, an Illinois Limited Liability Company ; MELROSE PARK 24 ASSOCIATES, LLC, a Delaware Limited 25 Liability Company; NMC GROVE 26 MELROSE, LLC, a Delaware Limited Liability Company; GMX MELROSE, LLC, 27 an Illinois Limited Liability Company; 28 NMC MELROSE PARK II, LLC, an Illinois -3- SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL 1 Limited Liability Company; NMC WASHINGTON, LLC, a California Limited 2 Liability Company; AU ZONE ARVADA, 3 LLC, a Colorado Limited Liability 4 Company; AU ZONE INVESTMENTS #2, LP, a California Limited Partnership; 5 THOUSAND OAKS MARKETPLACE, LP, 6 a California Limited Partnership; J & J BALDWIN PARK LLC, a Delaware Limited 7 Liability Company; NEWMAN CAPITAL 8 TEK, LLC, a Delaware Limited Liability 9 Company; J&J WAREHOUSE LLC, a California Limited Liability Company; 10 DEVONSHARE RESEDA, LLC, a California ~WYt:R,S' FO.fl INSI.J~At-,I CE PO.L tCVH OLOE.R-S SHERNDFF BIDART 11 Limited Liability Company; NMC ECHEVERRIA'"' UPLAND, LLC, a California Limited 12 Liability Company; NORWALK 13 FLALLON, LLC, a California Limited 14 Liability Company; TOMO GD LLC, a Delaware Limited Liability Company; 15 UPLAND TERRY, LLC, a Delaware 16 Limited Liability Company; SOURCE ASSOCIATES, LLC, a California Limited R~H 17 Liability Company; UPSIDE CRENSHAW 18 HOLDINGS, LLC, a Delaware Limited 19 Liability Company; UPSIDE CIP, LP, a Delaware Limited Partnership; NMMS 20 TWIN PEAKS, LLC, a California Limited 21 Liability Company; NMC SOUTHGATE, LLC, a California Limited Liability 22 Company; NMC SOUTHGATE PLAZA, 23 LLC, a California Limited Liability Company; NJM RIALTO, LLC, a California 24 Limited Liability Company; NMC 25 PLACENTIA, LLC, a California Limited 26 Liability Company; AU ZONE PLACENTIA, LLC, a California Limited 27 Liability Company; AU ZONE MADISON, 28 LLC; a California Limited Liability -4- SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL 1 Company; NMC MADISON MARKETPLACE, LLC, a California 2 Limited Liability Company; TRIANGLE 3 TOWN CENTER NW, LLC, a Washington 4 Limited Liability Company; NMC STONY ISLAND, LLC, a Delaware Limited Liability 5 Company, 6 Plaintiffs, 7 8 vs. 9 CERTAIN UNDERWRITERS AT 10 LLOYD’S LONDON SUBSCRIBING TO ~WYt:R,S' FO.fl INSI.J~At-,I CE PO.L tCVH OLOE.R-S SHERNDFF BIDART 11 CERTIFICATE NUMBER ARP19021; ECHEVERRIA'"' NAVIGATORS SPECIALTY 12 INSURANCE COMPANY, previously 13 identified as DOE 1; ATEGRITY 14 SPECIALTY INSURANCE COMPANY, previously identified as DOE 2; HDI 15 GLOBAL SPECIALTY SE, previously 16 identified as DOE 15; IRONSHORE SPECIALTY INSURANCE COMPANY, R~H 17 previously identified as DOE 8; ASPEN 18 SPECIALTY INSURANCE COMPANY, 19 previously identified as DOE 9; CERTAIN UNDERWRITERS AT LLOYD’S 20 SUBSCRIBING TO PG1902647 [DOE 3], 21 PG1900248 [DOE 4], PG1902628 [DOE 5], PG1902643 [DOE 10], PG1933878 [DOE 22 11], PG1902626 [DOE 12]; COLONY 23 INSURANCE COMPANY, previously identified as DOE 13; DOES 16 through 24 100, inclusive, 25 26 Defendants. 27 28 -5- SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL 1 I. 2 INTRODUCTION 3 1. Business Interruption coverage is an optional insurance benefit available 4 to businesses to minimize their risk and sustain them when a suspension of business 5 operations causes a loss of business income. This coverage allows businesses to pay 6 continuing operating expenses, additional expenses incurred because of the 7 interruption, and supplement their lost business income. 8 2. As California Insurance Commissioner Ricardo Lara stated in a notice on 9 April 14, 2020 to all admitted and non-admitted insurance companies in California, 10 “small and large California businesses purchase Business Interruption insurance to ~WYt:R,S' FO.fl INSI.J~At-,I CE PO.L tCVH OLOE.R-S SHERNDFF BIDART 11 protect against the loss of income and other losses caused by an interruption to the ECHEVERRIA'"' 12 normal operations of the business.” (Exhibit 1). 13 3. Plaintiff NewMark Merrill Companies, Inc., a California Corporation 14 [“NMMC”] manages shopping centers in California and Illinois. Plaintiff NMC South, 15 LLC [“NMC South”] manages shopping centers in the San Diego area of California and 16 in Washington. NewMark Merrill Mountain States, LLC [“NMC Mountain States”] R~H 17 manages shopping centers in Colorado. 18 4. The Plaintiffs who have an ownership interest in the specific shopping 19 centers [“Owner Plaintiffs”] who are each a “subsidiary, associated or allied company, 20 corporation, firm, organization” of and managed by NMMC, NMC South, or NMC 21 Mountain States are: 22 CHINO RETAIL, LLC; CHINO HILLS RETAIL II, LLC; NMC ANAHEIM, 23 LLC; ANAHEIM ISLAND PARTNERS, LLC; RLM FAMILY 24 PROPERTIES, LLC; F&F INVESTMENTS, LLC; EAST ANAHEIM 25 ACQUISITION, LLC; MESA TOWN CENTER, LLC; ANAHEIM FRIES 26 PARTNERS, LLC; BRISTOL CHINO II, LLC; NMC SANTA ANA, LLC; 27 GINSBORG BOYS, LLC; NJL CORONA, LLC; FRANK MISSION 28 MARKETPLACE, LLC; NORWALK TOWN SQUARE MANAGEMENT, -6- SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL 1 INC.; JAVID LEVIAN – NORWALK LLC; SHOKRAOLAH LEVIAN – 2 NORWALK LLC; JAMSHID LEVIAN – NORWALK LLC; 3 MANOOCHEHR LEVIAN – NORWALK LLC; LEVIAN FAMILY – 4 NORWALK LLC; HEKMATRAVAN FAMILY; ARLINGTON SQUARE, 5 L.P.; NMC GROVE ONTARIO, LLC; NMC GROVE ONTARIO EPL; NMC 6 GROVE ONTARIO PB, LLC; NMC GROVE ONTARIO MC, LLC; NMC 7 GROVE ONTARIO PDA, LLC; SHANE UNIVERSITY, LLC; NEWMARK 8 UNIVERSITY, LLC; NMC STRATFORD, LLC; CHINO STRATFORD, 9 LLC; GMX REAL ESTATE GROUP, LLC; SHANE STRATFORD, LLC; 10 NMC WHITTIER, LLC; NMC TOWER, LLC; WHITTIER GATEWAY, L.P.; ~WYt:R,S' FO.fl INSI.J~At-,I CE PO.L tCVH OLOE.R-S SHERNDFF BIDART 11 PEARL WHITTTIER PAINTER, LLC; NMC WHITTIER II, LLC; NMC ECHEVERRIA'"' 12 COTTONWOOD, LLC; SHANE TOWER, LLC; NMC BROOMFIELD, 13 LLC; BROOMFIELD ASSOCIATES, LP; TOWER BROOMFIELD, LLC; 14 NMC MELROSE PARK, LLC,; NMC MELROSE PARK MANAGER, LLC; 15 MELROSE PARK INVESTMENTS L.P.; MELROSE PARK EQUITY, LLC; 16 MELROSE PARK ASSOCIATES, LLC; NMC GROVE MELROSE, LLC; R~H 17 GMX MELROSE, LLC; NMC MELROSE PARK II, LLC; NMC 18 WASHINGTON, LLC; AU ZONE ARVADA, LLC; AU ZONE 19 INVESTMENTS #2, LP; THOUSAND OAKS MARKETPLACE, LP; J & J 20 BALDWIN PARK LLC,; NEWMAN CAPITAL TEK, LLC; J&J 21 WAREHOUSE LLC; DEVONSHARE RESEDA, LLC; NMC UPLAND, 22 LLC; NORWALK FLALLON, LLC; TOMO GD LLC; UPLAND TERRY, 23 LLC; SOURCE ASSOCIATES, LLC; UPSIDE CRENSHAW HOLDINGS, 24 LLC; UPSIDE CIP, LP; NMMS TWIN PEAKS, LLC; NMC SOUTHGATE, 25 LLC; NMC SOUTHGATE PLAZA, LLC; NJM RIALTO, LLC; NMC 26 PLACENTIA, LLC; AU ZONE PLACENTIA, LLC; AU ZONE MADISON, 27 LLC; NMC MADISON MARKETPLACE, LLC; TRIANGLE TOWN 28 CENTER NW, LLC; NMC STONY ISLAND, LLC -7- SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL 1 5. NMMC, NMC South, NMC Mountain States, and the Owner Plaintiffs 2 will be collectively referred to in this Complaint as “Plaintiffs”. 3 6. Plaintiffs purchased, timely paid all premiums, and performed all duties 4 required of them to be performed under a Real Estate America Property Association 5 [“REAPA”] All Risk Property Master insurance policy, certificate number ARP19021 6 [the “Policy”]. (Exhibit 2). Defendant Certain Underwriters of Lloyds of London [the 7 “Underwriters”] is the lead insurer for the Policy. Other participating insurers who 8 are also defendants are: NAVIGATORS SPECIALTY INSURANCE COMPANY; 9 ATEGRITY SPECIALTY INSURANCE COMPANY; HDI GLOBAL SPECIALTY SE; 10 IRONSHORE SPECIALTY INSURANCE COMPANY; ASPEN SPECIALTY ~WYt:R,S' FO.fl INSI.J~At-,I CE PO.L tCVH OLOE.R-S SHERNDFF BIDART 11 INSURANCE COMPANY; CERTAIN UNDERWRITERS AT LLOYD’S SUBSCRIBING ECHEVERRIA'"' 12 TO PG1902647, PG1900248, PG1902628, PG1902643, , PG1902626; COLONY 13 INSURANCE COMPANY, previously identified as DOE 13; DOES 16 through 100, 14 inclusive. The insurance defendants will be collectively referred to as “Defendants” 15 or “Insurers” in this Complaint. 16 7. The Evidence of Coverage provided to Plaintiffs by Cardigan General R~H 17 Insurance Services, LLC identifies the Insureds as “NewMark Merrill, LLC; Landmark 18 Retail Group, LLC; NMC South, LLC; NewMark Merrill Companies Mountain States; 19 NMC Technology Partners LLC: NMC Mountain Tenant Services, LLC; Brightstreet 20 LLC, NewMark Merrill Companies, Inc. and any subsidiary, associated or allied 21 company, corporation or joint venture in which the insured has management control or 22 ownership as now constituted or hereafter is acquired, as the respective interests of each 23 may appear.” (Exhibit 2, Evidence of Coverage, p. 1). NMMC, NMC South, and NMC 24 Mountain States are named Insureds under the Policy, and the Owner Plaintiffs are also 25 Insureds under the Policy as subsidiaries, associated or allied companies, corporations, 26 joint venturers in which NMMC, NMC South or NMC Mountain States has 27 management control or ownership. No other Evidence of Coverage identifying any 28 -8- SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL 1 other insureds was provided to Plaintiffs at the time the Policy was issued or at any 2 other relevant time. 3 8. Under an “All Risk” policy, all risks of physical loss or damage are 4 covered unless specifically and unambiguously excluded. Stated differently, all non- 5 excluded perils are covered. 6 9. The Policy insures Business Interruption loss “resulting from necessary 7 interruption of business conducted by the Insured including all interdependent loss of 8 earnings between or among companies owned or operated by the Insured caused by 9 loss, damage, or destruction by any of the perils covered herein during the term of this 10 policy to real and personal property as covered herein.” (Exhibit 2, Appendix B, at p. 7, ~WYt:R,S' FO.fl INSI.J~At-,I CE PO.L tCVH OLOE.R-S SHERNDFF BIDART 11 ¶ 11.) The Contingent Business Interruption coverage limits are $50,000,000. ECHEVERRIA'"' 12 10. The Policy provides a sublimit of coverage of $1,000,000 per occurrence 13 for Special Perils Business - Contagious Disease Coverage for “an interruption or 14 interference with the business of the insured as a consequence of an order by a 15 competent public authority due to:… iii) the existence or threat of hazardous 16 conditions either actual or suspected at the premises of the Insured.” (Exhibit 2, R~H 17 Appendix B, at p. 33, ¶ 72(c)(iii)(emphasis added).) 18 11. The Policy also provides a sublimit of coverage for the lesser of 19 $10,000,000 or 30 days per occurrence per insured when “access to real or personal 20 property is prohibited by order of civil or military authority irrespective of whether the 21 property of the Insured shall have been damaged.” (Exhibit 2, Appendix B, at p. 13, ¶ 22 20(d)(emphasis added).) 23 12. The Policy further provides a sublimit of coverage for the lesser of 24 $10,000,000 or 30 days per occurrence per insured when “ingress and egress from real 25 or personal property is thereby impaired or hindered irrespective of whether the 26 property of the Insured shall have been damaged.” (Exhibit 2, Appendix B, at p. 13, ¶ 27 20(e)(emphasis added).) 28 -9- SECOND AMENDED COMPLAINT; DEMAND FOR JURY TRIAL 1 13. The Coronavirus [“COVID-19”] originated in China in late 2019, spread to 2 Europe, and eventually came to the United States. On January 30, 2020 the World 3 Health Organization [“W.H.O.”] declared a public health emergency of international 4 concern. By March 11, 2020, the W.H.O. made the assessment that COVID-19 could be 5 characterized as a pandemic. Starting in the middle of March, states throughout the 6 United States, including the states where Plaintiffs’ shopping centers were located, 7 issued governmental orders requiring all non-essential businesses within their 8 jurisdictions to close. 9 14. Plaintiffs’ shopping centers were subject to the specific state governmental 10 orders where each was located. The closure of each shopping center was based on the ~WYt:R,S' FO.fl INSI.J~At-,I CE PO.L tCVH OLOE.R-S SHERNDFF BIDART 11 governmental orders of the state where the shopping center is located. Plaintiffs’ claims ECHEVERRIA'"' 12 involve governmental orders from four different states, each of which constitutes a 13 separate occurrence under the Policy. 14 15. The governmental orders restricted access and/or impaired or hindered 15 egress and ingress to Plaintiffs’ properties causing an interruption and suspension to 16 Plaintiffs’ business operations resulting in a covered business income loss. Plaintiffs R~H 17 incurred additional losses for extra expenses and soft costs covered under the Policy. 18 16. Engaging in the business of insurance in California imposes upon 19 insurers, including non-admitted carriers, the legal obligation to promptly conduct fair, 20 balanced and thorough investigations of all bases of claims for benefits made by their 21 insureds, with a view toward honoring and promptly paying valid claims. As part of 22 these obligations, an insurance company is obligated to diligently search for and 23 consider evidence that supports coverage of the claimed loss, and in doing so must give 24 at least as much consideration to the interests of its insured as it gives to its own 25 interests. 26 17. During the COVID-19 Pandemic, Commissioner Lara issued a notice after 27 the California Department of Insurance “ha[d] received numerous complaints from 28 businesses, public officials, and other stakeholders asserting that certain insurers, - 10 -