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1 Boris Treyzon, Esq. (SBN 188893)
btreyzon@actslaw.com
2 Sara A. McClain, Esq. (SBN 268429)
smcclain@actslaw.com
3 ABIR COHEN TREY ZON SALO, LLP
16001 Ventura Blvd., Ste. 200
4 Encino, CA 91436
Telephone: (424) 288-4367
5 Facsimile: (424) 288-4368
6 Attorneys for Plaintiffs
DOUGLAS NORD and FRANCES NORD
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF LOS ANGELES – NORTHWEST DISTRICT
10 DOUGLAS NORD, an individual; and ) Case No.:
FRANCES NORD, an individual, )
11 ) COMPLAINT FOR DAMAGES
Plaintiffs, )
12 ) 1. Breach of Contract;
vs. )
13 ) 2. Breach of the Implied Covenant of
STATE FARM GENERAL INSURANCE ) Good Faith and Fair Dealing;
14 COMPANY, an Illinois corporation; ROMEL )
CARLO SANTIAGO, an individual, and ) 3. Violation of Bus. & Prof. Code, §
15 DOES 1 THROUGH 20, inclusive, ) 17200, et seq.;
)
16 Defendants. ) 4. Financial Elder Abuse (Welf. & Inst.
) Code, § 15610.30); and
17 )
) 5. Negligent Misrepresentation
18 )
) DEMAND FOR JURY TRIAL
19 )
) UNLIMITED JURISDICTION
20 )
21 COME NOW plaintiffs DOUGLAS NORD and FRANCES NORD (collectively, “Plaintiffs”)
22 who hereby allege as follows:
23 GENERAL ALLEGATIONS
24 1. Plaintiffs are, and at all times mentioned herein were, citizens of the State of California
25 and residents of the County of Los Angeles.
26 2. Defendant STATE FARM GENERAL INSURANCE COMPANY (“State Farm”) is,
27 and at all times mentioned herein was, a corporation duly organized and existing under the laws of the
28 ///
1
PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
1 State of Illinois and authorized to do business and engage in the business of writing and selling
2 insurance in the State of California.
3 3. Defendant ROMEL CARLO SANTIAGO (“Santiago”) is, and at all times mentioned
4 herein was, a citizen of the State of California and resident of the County of Los Angeles.
5 4. Plaintiffs do not know the true names and capacities of the defendants sued as Does 1
6 through 20, inclusive. Plaintiffs therefore sue these defendants by fictitious names under Code of
7 Civil Procedure section 474. Plaintiffs will amend this Complaint to state the true names and
8 capacities of these fictitiously named defendants when their true identities are ascertained. Plaintiffs
9 are informed and believe, and thereon allege, that each of the fictitiously named defendants is legally
10 responsible in some manner for the events and damages under the causes of action alleged.
11 5. Plaintiffs are informed and believe, and thereon allege, each of the named defendants
12 and each of the DOE defendants identified were the agents, partners, co-joint venturers, associates,
13 and/or employees of one or more of the other defendants and was acting in the course and scope of
14 such agency, partnership, joint venture, association or employment when the acts giving rise to the
15 causes of action occurred.
16 FACTUAL BACKGROUND
17 6. Plaintiffs are, and at all times mentioned herein were, the owners of a single family
18 residence located in Tarzana, California (the “Property”).
19 7. At all times relevant herein, Plaintiffs were insured for the risk of damage or loss to the
20 Property under a homeowners’ insurance policy bearing policy number 71-S1-6758-7 issued by State
21 Farm (the “Policy”).
22 8. On or about February 28, 2021, a windstorm caused a massive tree located next door
23 to the Property to fall on the Property. As the tree fell, it knocked down several other trees in its path.
24 These trees fell on the Property and crashed through the roof of Plaintiffs’ home, knocking Mr. Nord
25 to the floor and causing him to sustain physical injuries. The tree fall also caused significant damage
26 to the Property and its contents (the “Loss.”)
27 9. Plaintiffs promptly notified State Farm of the Loss and State Farm assigned claim no.
28 75-16Z1-37B (the “Claim”).
2
PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
1 10. On or about April 27, 2021, representatives from EFI Global, Inc. (“EFI”), which had
2 been retained by State Farm, inspected the Property. The purpose of EFI’s inspection was to determine
3 the extent of structural damage the Property sustained as a result of the collapsed trees and to provide
4 a repair protocol. EFI’s report indicates that the damage caused by the collapsed tree is concentrated
5 to the northeast corner of the Property. EFI’s report fails to establish or consider the magnitude of the
6 impact of the collapsed trees or the predominate cause of property damage outside of the localized
7 area of impact. In sum, EFI searched for evidence to deny coverage instead of supporting coverage,
8 and State Farm’s reliance on EFI’s report was unreasonable.
9 11. Plaintiffs initially retained a public adjuster to assist them with the Claim; however,
10 after several weeks passed without any payment from State Farm, Plaintiffs were forced to retain
11 counsel in or around May 2021.
12 12. At counsel’s insistence, State Farm agreed to provide adequate temporary housing as
13 the Property was rendered uninhabitable by the Loss. In the meantime, State Farm delayed numerous
14 payments necessary for repairs, thereby delaying the repair process. Moreover, despite knowing of
15 the requirements for repairs, which included approved structural drawings, State Farm arbitrarily and
16 unreasonably cutoff payment for temporary housing. State Farm knew repairs were not complete and
17 that its own conduct was the primary reason for any delay in commencing and completing repairs.
18 State Farm also knew when it ended temporary housing that Plaintiffs were elderly and still recovering
19 from injuries suffered from the fallen trees.
20 13. When Plaintiffs were able to move back home, albeit with repairs only partially
21 completed, they were told by Santiago that the security deposit issued by State Farm for temporary
22 housing was paid out of their personal property claim and therefore, Plaintiffs should keep any refund
23 on the deposit.
24 14. Plaintiffs made countless attempts to demonstrate to State Farm that it had failed to
25 make adequate payments for dwelling and contents damages, including but not limited to numerous
26 subcontractor bids, opinions from experts, and several inspections of the Property. State Farm refused
27 to acknowledge the true extent of its liability and instead relied on incomplete and inaccurate
28 assessments of the damage to delay and deny payment to Plaintiffs.
3
PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
1 15. Months have passed without any communication from State Farm, additional payment
2 of policy benefits, or any claim decision or other explanation for why State Farm refuses to issue
3 payment for additional policy benefits. State Farm’s failure to adjust the Claim, failure to
4 communicate with its insureds, and failure to make any decision on the Claim is tantamount to a denial
5 of the Claim.
6 FIRST CAUSE OF ACTION
7 (Breach of Contract Against
8 Defendants State Farm General Insurance Company and DOES 1-10)
9 16. Plaintiffs incorporate by reference paragraphs 1 through 15, inclusive, as though set
10 forth in full herein.
11 17. The Policy obligated State Farm to indemnify Plaintiffs for certain losses to the
12 Property, including the Loss.
13 18. Plaintiffs promptly notified State Farm of the Loss and complied with all requirements
14 under the Policy which they were obligated to perform, except for those obligations, if any, which they
15 were prevented or excused from performing.
16 19. State Farm failed to indemnify Plaintiffs for the Loss as required under the terms of the
17 Policy. In doing so, State Farm breached the terms of the Policy by failing to issue policy benefits to
18 which Plaintiffs were, and are, contractually entitled.
19 20. As a direct and proximate result of State Farm’s breach of the insurance contract,
20 Plaintiffs have suffered legally compensable damages, including unpaid policy benefits, interest on
21 contract amounts owed, and other out-of-pocket expenses, as well as consequential damages, in a sum
22 exceeding the applicable jurisdictional threshold. The exact amount of such damages will be proven
23 at time of trial.
24 SECOND CAUSE OF ACTION
25 (Breach of the Implied Covenant of Good Faith and Fair Dealing Against
26 Defendants State Farm General Insurance Company and DOES 1-10)
27 21. Plaintiffs incorporate by reference paragraphs 1 through 20, inclusive, as though set
28 forth in full herein.
4
PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
1 22. State Farm owed Plaintiffs a duty of good faith and fair dealing regarding all
2 transactions and relationships arising under or in connection with the Policy.
3 23. In the handling and adjustment of the Claim, State Farm and its representatives elevated
4 the interests of State Farm above those of Plaintiffs and subordinated Plaintiffs’ interests to those of
5 State Farm by engaging in improper, wrongful, abusive, fraudulent, unreasonable and tortious conduct
6 in connection with the Claim.
7 24. State Farm breached the implied covenant of good faith and fair dealing by, among
8 other things:
9 a. Failing to conduct a full, fair, prompt, and thorough investigation of the Claim;
10 b. Failing to evaluate the Claim objectively;
11 c. Not attempting in good faith to effectuate a prompt, fair and equitable settlement of the
12 Claim;
13 d. Compelling Plaintiff to institute litigation to recover amounts due under the Policy;
14 e. Deliberately denying benefits State Farm knew were owed under the Policy in
15 conscious disregard of Plaintiffs’ known rights and established California case law;
16 f. Failing to respond in writing to status requests by Plaintiffs in the manner and within
17 the time periods required by the California Fair Claims Settlement Practices Regulations (10 Cal. Code
18 Regs. sections 2695.5 et seq.); and
19 g. Failing to properly explain the factual and legal bases for denial.
20 25. State Farm misinterpreted policy language, misrepresented the facts of the Loss, and
21 drafted correspondence to Plaintiffs setting forth the inaccurate, misplaced and misleading facts and
22 conclusions in order to deny further payment on the Claim. This affirmative action sought to minimize
23 the coverage that should have been afforded to Plaintiffs.
24 26. As a direct result of its breach of contract, breach of the implied covenant of good faith
25 and fair dealing, and breach of regulations promulgated by the California Department of Insurance for
26 the protection of policyholders as described above, State Farm has waived and/or is estopped from
27 asserting any right to contest either coverage or the amount of benefits claimed by Plaintiffs.
28 ///
5
PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
1 27. Because of the wrongful and tortious conduct of State Farm and its representatives, and
2 each of them, Plaintiff has suffered legally compensable special and general damages in amounts to
3 be shown at time of trial, including but not limited to, loss of use of policy benefits, loss of use and
4 enjoyment of the family home, and emotional distress.
5 28. As a direct and proximate result of the conduct of State Farm and its representatives,
6 consultants and employees, Plaintiffs had to engage the services of legal counsel to pursue litigation
7 and obtain policy benefits. Plaintiffs have incurred, and will continue to incur, costs and attorneys’
8 fees in an amount to be determined according to proof. Plaintiffs claim these costs and fees as a
9 distinct item of damage under Brandt v. Superior Court (1985) 37 Cal.App.3d 813.
10 29. Plaintiffs are informed and believe, and thereon allege, the conduct of State Farm
11 described above is part of a long-established pattern and practice designed to force claimants to
12 abandon their claims or accept benefits less than those owed in order to minimize the financial
13 exposure and risk to State Farm. State Farm actively and knowingly encouraged its claim department
14 personnel to engage in fraud, unfair conduct, and abuse of legitimate claimants such as Plaintiffs.
15 These programs were authorized and ratified by the officers, directors, or managing agents of State
16 Farm and implemented to reward employees to achieve the financial goals of State Farm at the expense
17 of policyholders and claimants, including Plaintiffs.
18 30. Plaintiffs are further informed and believe, and thereon allege, State Farm adopted a
19 policy to delay payment on legitimate claims—such as the Claim—and to support such denials by
20 creating phony “genuine issues” regarding coverage and contract liability based on deliberately
21 misrepresenting and misinterpreting the facts of the Loss and provisions of the Policy.
22 31. The acts and omissions of State Farm and its employees and/or representatives,
23 described above, are established corporate practices and procedures, and were authorized, directed,
24 approved, and/or ratified by the company’s officers, directors, or managing agents.
25 32. In committing the acts described herein, State Farm and its employees and/or
26 representatives acted intentionally, with a conscious disregard for Plaintiffs’ known rights, and did so
27 in a fraudulent and oppressive manner. The acts and omissions described above warrant the imposition
28 ///
6
PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
1 of exemplary damages under Civil Code section 3294 in an amount sufficient to punish and deter State
2 Farm from engaging in similar conduct in the future.
3 33. As a direct result of Defendants’ breach of contract, breach of the implied covenant of
4 good faith and fair dealing, and breach of regulations promulgated by the California Department of
5 Insurance for the protection of policyholders as described above, Defendants, and each of them, have
6 waived and/or are estopped from asserting any right to contest either coverage or the amount of
7 benefits claimed by Plaintiffs or as shown in Plaintiffs’ proofs of claim submitted to Defendants, and
8 each of them.
9 THIRD CAUSE OF ACTION
10 (Violation of Bus. & Prof. Code, § 17200, et seq. Against
11 Defendants State Farm General Insurance Company and DOES 1-10)
12 34. Plaintiffs incorporates by reference paragraphs 1 through 33, inclusive, as though set
13 forth in full herein.
14 35. Plaintiffs are informed and believe and thereon allege that the acts and omissions
15 described above constitute the standard and ongoing business practices of State Farm. These acts and
16 omissions constitute unlawful, unfair and/or fraudulent business acts or practices within the meaning
17 of Bus. & Prof. Code, § 17200, et seq.
18 36. Plaintiffs have suffered a direct injury as a result of the acts and omissions described
19 above, including mental and emotional pain, suffering, worry, and anxiety.
20 37. In addition to the direct physical injuries stated above, Plaintiffs lost money and
21 property, as a result of the unlawful, unfair and fraudulent business acts, practices and conduct of State
22 Farm. Plaintiffs will continue to be injured by these business practices because the Property is still
23 insured by State Farm.
24 38. Plaintiffs seek an Order enjoining all of the named and fictitiously designated
25 Defendants, and each of them, from engaging in further unlawful, unfair or fraudulent business acts
26 and practices within the State of California.
27 ///
28 ///
7
PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
1 FOURTH CAUSE OF ACTION
2 (Financial Elder Abuse under Wel. & Inst. Code, § 15610.30 et seq.
3 Against Defendants State Farm General Insurance Company and DOES 1 through 10)
4 39. Plaintiffs incorporate by reference paragraphs 1 through 38, inclusive, as though set
5 forth in full herein.
6 40. At all times mentioned herein, Plaintiffs were individuals older than sixty-five years of
7 age.
8 41. The definition of “personal property” under Civ. Code, § 14 includes money, chattels,
9 things in action and evidences of debt.
10 42. Upon occurrence of the Loss, Plaintiffs had a vested interest in all policy benefits due
11 and owing as a result thereof.
12 43. State Farm acted unreasonably by wrongfully withholding policy benefits thereby
13 effectively denying the Claim. Accordingly, pursuant to the terms of Welf. & Inst. Code § 15610.30
14 et seq., the Elder Abuse and Dependent Adult Civil Protection Act, State Farm wrongfully retained
15 property belonging to Plaintiffs.
16 44. State Farm knowingly retained Plaintiffs’ property for its own financial gain, and with
17 the intent to deprive them of their property.
18 45. State Farm knew, or should have known, the wrongful withholding of policy benefits
19 due and owing would cause harm to Plaintiffs, and they did in fact suffer harm as result of the wrongful
20 withholding of policy benefits.
21 46. As elderly persons with health issues, including a traumatic brain injury caused by the
22 fallen trees, Plaintiffs are substantially more vulnerable than other members of the public. State
23 Farm’s wrongful and unreasonable withholding of policy benefits due and owing to Plaintiffs has
24 created housing instability and insecurity and has exacerbated Plaintiffs’ severe emotional distress and
25 caused economic losses. State Farm is fully aware of Plaintiffs’ plight. In refusing to issue further
26 policy benefits, State Farm acted intentionally and with a conscious disregard for Plaintiffs’ known
27 rights and did so in a fraudulent and oppressive manner.
28 ///
8
PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
1 47. Plaintiffs have suffered injury as a result of State Farm’s acts and omissions described
2 above, including financial, mental and emotional pain, suffering, worry, and anxiety. The exact
3 amount of such damages will be proven at time of trial.
4 48. As a direct and proximate result of State Farm’s conduct, Plaintiffs have suffered
5 damages, including but not limited to attorneys’ fees which are recoverable pursuant to Welf. & Inst.
6 Code, § 15657.5(a).
7 FIFTH CAUSE OF ACTION
8 (Negligent Misrepresentation Against Defendants Romel Carlo Santiago and DOES 11-20)
9 49. Plaintiffs incorporate by reference paragraphs 1 through 48, inclusive, as though set
10 forth in full herein.
11 50. Santiago was the adjuster assigned to the Claim in 2022. In this role, he made verbal
12 representations regarding the Loss, the Policy, and Plaintiffs’ entitlement to payment of benefits under
13 the Policy. These representations conveyed information in a commercial setting for a business
14 purpose.
15 51. On or about July 7, 2022, Santiago verbally represented to Plaintiffs that the security
16 deposit issued by State Farm for temporary housing was paid out of their personal property claim and
17 therefore, Plaintiffs should keep any refund on the deposit. Based on this representation, Plaintiffs did
18 not take further action to return the refunded portion of the security deposit to State Farm. However,
19 this representation was later determined to be false when State Farm requested Plaintiffs return the
20 refunded portion of the security deposit.
21 52. In light of State Farm’s subsequent request, Plaintiffs are informed and believe and
22 thereon allege that Santiago made the representation regarding the security deposit without any
23 reasonable belief in its truth.
24 53. Plaintiffs justifiably and reasonably relied on Santiago’s representation by foregoing
25 further action regarding the deposit and using the money to pay for repairs which State Farm owed but
26 failed to pay. Plaintiffs suffered harm from their detrimental reliance on Santiago’s representations.
27 The exact amount of Plaintiffs’ damages will be proven at time of trial.
28 ///
9
PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
1 PRAYER FOR DAMAGES
2 WHEREFORE, Plaintiffs pray for damages and other judicial relief:
3 1. For special damages according to proof;
4 2. For general damages according to proof, including emotional distress and mental
5 suffering;
6 3. For contract benefits under the Policy;
7 4. On the second and fourth causes of action only, for attorneys’ fees according to proof;
8 5. On the second and fourth causes of action only, for an award of punitive and/or
9 exemplary damages pursuant to Civil Code section 3294 in an amount to punish Defendant and DOES
10 1 through 10, and each of them, and deter them from engaging in similar conduct in the future;
11 6. On the third cause of action only, for injunctive relief;
12 7. On the fourth cause of action only, for treble damages;
13 8. For pre-judgment interest as permitted by law;
14 9. For Plaintiffs’ costs and expenses of suit; and
15 10. For such other and further relief as the Court deems just and proper.
16 ABIR COHEN TREYZON SALO, LLP
17
18
Dated: July 3, 2024 By:____________________________________
19 Sara A. McClain, Esq.
Attorneys for Plaintiffs DOUGLAS NORD and
20 FRANCES NORD
21
22 DEMAND FOR JURY TRIAL
23 Plaintiffs request a jury trial on all causes of action alleged.
24 ABIR COHEN TREYZON SALO, LLP
25
26 Dated: July 3, 2024 By:____________________________________
Sara A. McClain, Esq.
27
Attorneys for Plaintiffs DOUGLAS NORD and
28 FRANCES NORD
10
PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
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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 Boris Treyzon, Esq. (SBN 188893) btreyzon@actslaw.com 2 Sara A. McClain, Esq. (SBN 268429) smcclain@actslaw.com 3 ABIR COHEN TREY ZON SALO, LLP 16001 Ventura Blvd., Ste. 200 4 Encino, CA 91436 Telephone: (424) 288-4367 5 Facsimile: (424) 288-4368 6 Attorneys for Plaintiffs DOUGLAS NORD and FRANCES NORD 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF LOS ANGELES – NORTHWEST DISTRICT 10 DOUGLAS NORD, an individual; and ) Case No.: FRANCES NORD, an individual, ) 11 ) COMPLAINT FOR DAMAGES Plaintiffs, ) 12 ) 1. Breach of Contract; vs. ) 13 ) 2. Breach of the Implied Covenant of STATE FARM GENERAL INSURANCE ) Good Faith and Fair Dealing; 14 COMPANY, an Illinois corporation; ROMEL ) CARLO SANTIAGO, an individual, and ) 3. Violation of Bus. & Prof. Code, § 15 DOES 1 THROUGH 20, inclusive, ) 17200, et seq.; ) 16 Defendants. ) 4. Financial Elder Abuse (Welf. & Inst. ) Code, § 15610.30); and 17 ) ) 5. Negligent Misrepresentation 18 ) ) DEMAND FOR JURY TRIAL 19 ) ) UNLIMITED JURISDICTION 20 ) 21 COME NOW plaintiffs DOUGLAS NORD and FRANCES NORD (collectively, “Plaintiffs”) 22 who hereby allege as follows: 23 GENERAL ALLEGATIONS 24 1. Plaintiffs are, and at all times mentioned herein were, citizens of the State of California 25 and residents of the County of Los Angeles. 26 2. Defendant STATE FARM GENERAL INSURANCE COMPANY (“State Farm”) is, 27 and at all times mentioned herein was, a corporation duly organized and existing under the laws of the 28 /// 1 PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 State of Illinois and authorized to do business and engage in the business of writing and selling 2 insurance in the State of California. 3 3. Defendant ROMEL CARLO SANTIAGO (“Santiago”) is, and at all times mentioned 4 herein was, a citizen of the State of California and resident of the County of Los Angeles. 5 4. Plaintiffs do not know the true names and capacities of the defendants sued as Does 1 6 through 20, inclusive. Plaintiffs therefore sue these defendants by fictitious names under Code of 7 Civil Procedure section 474. Plaintiffs will amend this Complaint to state the true names and 8 capacities of these fictitiously named defendants when their true identities are ascertained. Plaintiffs 9 are informed and believe, and thereon allege, that each of the fictitiously named defendants is legally 10 responsible in some manner for the events and damages under the causes of action alleged. 11 5. Plaintiffs are informed and believe, and thereon allege, each of the named defendants 12 and each of the DOE defendants identified were the agents, partners, co-joint venturers, associates, 13 and/or employees of one or more of the other defendants and was acting in the course and scope of 14 such agency, partnership, joint venture, association or employment when the acts giving rise to the 15 causes of action occurred. 16 FACTUAL BACKGROUND 17 6. Plaintiffs are, and at all times mentioned herein were, the owners of a single family 18 residence located in Tarzana, California (the “Property”). 19 7. At all times relevant herein, Plaintiffs were insured for the risk of damage or loss to the 20 Property under a homeowners’ insurance policy bearing policy number 71-S1-6758-7 issued by State 21 Farm (the “Policy”). 22 8. On or about February 28, 2021, a windstorm caused a massive tree located next door 23 to the Property to fall on the Property. As the tree fell, it knocked down several other trees in its path. 24 These trees fell on the Property and crashed through the roof of Plaintiffs’ home, knocking Mr. Nord 25 to the floor and causing him to sustain physical injuries. The tree fall also caused significant damage 26 to the Property and its contents (the “Loss.”) 27 9. Plaintiffs promptly notified State Farm of the Loss and State Farm assigned claim no. 28 75-16Z1-37B (the “Claim”). 2 PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 10. On or about April 27, 2021, representatives from EFI Global, Inc. (“EFI”), which had 2 been retained by State Farm, inspected the Property. The purpose of EFI’s inspection was to determine 3 the extent of structural damage the Property sustained as a result of the collapsed trees and to provide 4 a repair protocol. EFI’s report indicates that the damage caused by the collapsed tree is concentrated 5 to the northeast corner of the Property. EFI’s report fails to establish or consider the magnitude of the 6 impact of the collapsed trees or the predominate cause of property damage outside of the localized 7 area of impact. In sum, EFI searched for evidence to deny coverage instead of supporting coverage, 8 and State Farm’s reliance on EFI’s report was unreasonable. 9 11. Plaintiffs initially retained a public adjuster to assist them with the Claim; however, 10 after several weeks passed without any payment from State Farm, Plaintiffs were forced to retain 11 counsel in or around May 2021. 12 12. At counsel’s insistence, State Farm agreed to provide adequate temporary housing as 13 the Property was rendered uninhabitable by the Loss. In the meantime, State Farm delayed numerous 14 payments necessary for repairs, thereby delaying the repair process. Moreover, despite knowing of 15 the requirements for repairs, which included approved structural drawings, State Farm arbitrarily and 16 unreasonably cutoff payment for temporary housing. State Farm knew repairs were not complete and 17 that its own conduct was the primary reason for any delay in commencing and completing repairs. 18 State Farm also knew when it ended temporary housing that Plaintiffs were elderly and still recovering 19 from injuries suffered from the fallen trees. 20 13. When Plaintiffs were able to move back home, albeit with repairs only partially 21 completed, they were told by Santiago that the security deposit issued by State Farm for temporary 22 housing was paid out of their personal property claim and therefore, Plaintiffs should keep any refund 23 on the deposit. 24 14. Plaintiffs made countless attempts to demonstrate to State Farm that it had failed to 25 make adequate payments for dwelling and contents damages, including but not limited to numerous 26 subcontractor bids, opinions from experts, and several inspections of the Property. State Farm refused 27 to acknowledge the true extent of its liability and instead relied on incomplete and inaccurate 28 assessments of the damage to delay and deny payment to Plaintiffs. 3 PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 15. Months have passed without any communication from State Farm, additional payment 2 of policy benefits, or any claim decision or other explanation for why State Farm refuses to issue 3 payment for additional policy benefits. State Farm’s failure to adjust the Claim, failure to 4 communicate with its insureds, and failure to make any decision on the Claim is tantamount to a denial 5 of the Claim. 6 FIRST CAUSE OF ACTION 7 (Breach of Contract Against 8 Defendants State Farm General Insurance Company and DOES 1-10) 9 16. Plaintiffs incorporate by reference paragraphs 1 through 15, inclusive, as though set 10 forth in full herein. 11 17. The Policy obligated State Farm to indemnify Plaintiffs for certain losses to the 12 Property, including the Loss. 13 18. Plaintiffs promptly notified State Farm of the Loss and complied with all requirements 14 under the Policy which they were obligated to perform, except for those obligations, if any, which they 15 were prevented or excused from performing. 16 19. State Farm failed to indemnify Plaintiffs for the Loss as required under the terms of the 17 Policy. In doing so, State Farm breached the terms of the Policy by failing to issue policy benefits to 18 which Plaintiffs were, and are, contractually entitled. 19 20. As a direct and proximate result of State Farm’s breach of the insurance contract, 20 Plaintiffs have suffered legally compensable damages, including unpaid policy benefits, interest on 21 contract amounts owed, and other out-of-pocket expenses, as well as consequential damages, in a sum 22 exceeding the applicable jurisdictional threshold. The exact amount of such damages will be proven 23 at time of trial. 24 SECOND CAUSE OF ACTION 25 (Breach of the Implied Covenant of Good Faith and Fair Dealing Against 26 Defendants State Farm General Insurance Company and DOES 1-10) 27 21. Plaintiffs incorporate by reference paragraphs 1 through 20, inclusive, as though set 28 forth in full herein. 4 PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 22. State Farm owed Plaintiffs a duty of good faith and fair dealing regarding all 2 transactions and relationships arising under or in connection with the Policy. 3 23. In the handling and adjustment of the Claim, State Farm and its representatives elevated 4 the interests of State Farm above those of Plaintiffs and subordinated Plaintiffs’ interests to those of 5 State Farm by engaging in improper, wrongful, abusive, fraudulent, unreasonable and tortious conduct 6 in connection with the Claim. 7 24. State Farm breached the implied covenant of good faith and fair dealing by, among 8 other things: 9 a. Failing to conduct a full, fair, prompt, and thorough investigation of the Claim; 10 b. Failing to evaluate the Claim objectively; 11 c. Not attempting in good faith to effectuate a prompt, fair and equitable settlement of the 12 Claim; 13 d. Compelling Plaintiff to institute litigation to recover amounts due under the Policy; 14 e. Deliberately denying benefits State Farm knew were owed under the Policy in 15 conscious disregard of Plaintiffs’ known rights and established California case law; 16 f. Failing to respond in writing to status requests by Plaintiffs in the manner and within 17 the time periods required by the California Fair Claims Settlement Practices Regulations (10 Cal. Code 18 Regs. sections 2695.5 et seq.); and 19 g. Failing to properly explain the factual and legal bases for denial. 20 25. State Farm misinterpreted policy language, misrepresented the facts of the Loss, and 21 drafted correspondence to Plaintiffs setting forth the inaccurate, misplaced and misleading facts and 22 conclusions in order to deny further payment on the Claim. This affirmative action sought to minimize 23 the coverage that should have been afforded to Plaintiffs. 24 26. As a direct result of its breach of contract, breach of the implied covenant of good faith 25 and fair dealing, and breach of regulations promulgated by the California Department of Insurance for 26 the protection of policyholders as described above, State Farm has waived and/or is estopped from 27 asserting any right to contest either coverage or the amount of benefits claimed by Plaintiffs. 28 /// 5 PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 27. Because of the wrongful and tortious conduct of State Farm and its representatives, and 2 each of them, Plaintiff has suffered legally compensable special and general damages in amounts to 3 be shown at time of trial, including but not limited to, loss of use of policy benefits, loss of use and 4 enjoyment of the family home, and emotional distress. 5 28. As a direct and proximate result of the conduct of State Farm and its representatives, 6 consultants and employees, Plaintiffs had to engage the services of legal counsel to pursue litigation 7 and obtain policy benefits. Plaintiffs have incurred, and will continue to incur, costs and attorneys’ 8 fees in an amount to be determined according to proof. Plaintiffs claim these costs and fees as a 9 distinct item of damage under Brandt v. Superior Court (1985) 37 Cal.App.3d 813. 10 29. Plaintiffs are informed and believe, and thereon allege, the conduct of State Farm 11 described above is part of a long-established pattern and practice designed to force claimants to 12 abandon their claims or accept benefits less than those owed in order to minimize the financial 13 exposure and risk to State Farm. State Farm actively and knowingly encouraged its claim department 14 personnel to engage in fraud, unfair conduct, and abuse of legitimate claimants such as Plaintiffs. 15 These programs were authorized and ratified by the officers, directors, or managing agents of State 16 Farm and implemented to reward employees to achieve the financial goals of State Farm at the expense 17 of policyholders and claimants, including Plaintiffs. 18 30. Plaintiffs are further informed and believe, and thereon allege, State Farm adopted a 19 policy to delay payment on legitimate claims—such as the Claim—and to support such denials by 20 creating phony “genuine issues” regarding coverage and contract liability based on deliberately 21 misrepresenting and misinterpreting the facts of the Loss and provisions of the Policy. 22 31. The acts and omissions of State Farm and its employees and/or representatives, 23 described above, are established corporate practices and procedures, and were authorized, directed, 24 approved, and/or ratified by the company’s officers, directors, or managing agents. 25 32. In committing the acts described herein, State Farm and its employees and/or 26 representatives acted intentionally, with a conscious disregard for Plaintiffs’ known rights, and did so 27 in a fraudulent and oppressive manner. The acts and omissions described above warrant the imposition 28 /// 6 PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 of exemplary damages under Civil Code section 3294 in an amount sufficient to punish and deter State 2 Farm from engaging in similar conduct in the future. 3 33. As a direct result of Defendants’ breach of contract, breach of the implied covenant of 4 good faith and fair dealing, and breach of regulations promulgated by the California Department of 5 Insurance for the protection of policyholders as described above, Defendants, and each of them, have 6 waived and/or are estopped from asserting any right to contest either coverage or the amount of 7 benefits claimed by Plaintiffs or as shown in Plaintiffs’ proofs of claim submitted to Defendants, and 8 each of them. 9 THIRD CAUSE OF ACTION 10 (Violation of Bus. & Prof. Code, § 17200, et seq. Against 11 Defendants State Farm General Insurance Company and DOES 1-10) 12 34. Plaintiffs incorporates by reference paragraphs 1 through 33, inclusive, as though set 13 forth in full herein. 14 35. Plaintiffs are informed and believe and thereon allege that the acts and omissions 15 described above constitute the standard and ongoing business practices of State Farm. These acts and 16 omissions constitute unlawful, unfair and/or fraudulent business acts or practices within the meaning 17 of Bus. & Prof. Code, § 17200, et seq. 18 36. Plaintiffs have suffered a direct injury as a result of the acts and omissions described 19 above, including mental and emotional pain, suffering, worry, and anxiety. 20 37. In addition to the direct physical injuries stated above, Plaintiffs lost money and 21 property, as a result of the unlawful, unfair and fraudulent business acts, practices and conduct of State 22 Farm. Plaintiffs will continue to be injured by these business practices because the Property is still 23 insured by State Farm. 24 38. Plaintiffs seek an Order enjoining all of the named and fictitiously designated 25 Defendants, and each of them, from engaging in further unlawful, unfair or fraudulent business acts 26 and practices within the State of California. 27 /// 28 /// 7 PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 FOURTH CAUSE OF ACTION 2 (Financial Elder Abuse under Wel. & Inst. Code, § 15610.30 et seq. 3 Against Defendants State Farm General Insurance Company and DOES 1 through 10) 4 39. Plaintiffs incorporate by reference paragraphs 1 through 38, inclusive, as though set 5 forth in full herein. 6 40. At all times mentioned herein, Plaintiffs were individuals older than sixty-five years of 7 age. 8 41. The definition of “personal property” under Civ. Code, § 14 includes money, chattels, 9 things in action and evidences of debt. 10 42. Upon occurrence of the Loss, Plaintiffs had a vested interest in all policy benefits due 11 and owing as a result thereof. 12 43. State Farm acted unreasonably by wrongfully withholding policy benefits thereby 13 effectively denying the Claim. Accordingly, pursuant to the terms of Welf. & Inst. Code § 15610.30 14 et seq., the Elder Abuse and Dependent Adult Civil Protection Act, State Farm wrongfully retained 15 property belonging to Plaintiffs. 16 44. State Farm knowingly retained Plaintiffs’ property for its own financial gain, and with 17 the intent to deprive them of their property. 18 45. State Farm knew, or should have known, the wrongful withholding of policy benefits 19 due and owing would cause harm to Plaintiffs, and they did in fact suffer harm as result of the wrongful 20 withholding of policy benefits. 21 46. As elderly persons with health issues, including a traumatic brain injury caused by the 22 fallen trees, Plaintiffs are substantially more vulnerable than other members of the public. State 23 Farm’s wrongful and unreasonable withholding of policy benefits due and owing to Plaintiffs has 24 created housing instability and insecurity and has exacerbated Plaintiffs’ severe emotional distress and 25 caused economic losses. State Farm is fully aware of Plaintiffs’ plight. In refusing to issue further 26 policy benefits, State Farm acted intentionally and with a conscious disregard for Plaintiffs’ known 27 rights and did so in a fraudulent and oppressive manner. 28 /// 8 PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 47. Plaintiffs have suffered injury as a result of State Farm’s acts and omissions described 2 above, including financial, mental and emotional pain, suffering, worry, and anxiety. The exact 3 amount of such damages will be proven at time of trial. 4 48. As a direct and proximate result of State Farm’s conduct, Plaintiffs have suffered 5 damages, including but not limited to attorneys’ fees which are recoverable pursuant to Welf. & Inst. 6 Code, § 15657.5(a). 7 FIFTH CAUSE OF ACTION 8 (Negligent Misrepresentation Against Defendants Romel Carlo Santiago and DOES 11-20) 9 49. Plaintiffs incorporate by reference paragraphs 1 through 48, inclusive, as though set 10 forth in full herein. 11 50. Santiago was the adjuster assigned to the Claim in 2022. In this role, he made verbal 12 representations regarding the Loss, the Policy, and Plaintiffs’ entitlement to payment of benefits under 13 the Policy. These representations conveyed information in a commercial setting for a business 14 purpose. 15 51. On or about July 7, 2022, Santiago verbally represented to Plaintiffs that the security 16 deposit issued by State Farm for temporary housing was paid out of their personal property claim and 17 therefore, Plaintiffs should keep any refund on the deposit. Based on this representation, Plaintiffs did 18 not take further action to return the refunded portion of the security deposit to State Farm. However, 19 this representation was later determined to be false when State Farm requested Plaintiffs return the 20 refunded portion of the security deposit. 21 52. In light of State Farm’s subsequent request, Plaintiffs are informed and believe and 22 thereon allege that Santiago made the representation regarding the security deposit without any 23 reasonable belief in its truth. 24 53. Plaintiffs justifiably and reasonably relied on Santiago’s representation by foregoing 25 further action regarding the deposit and using the money to pay for repairs which State Farm owed but 26 failed to pay. Plaintiffs suffered harm from their detrimental reliance on Santiago’s representations. 27 The exact amount of Plaintiffs’ damages will be proven at time of trial. 28 /// 9 PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1 PRAYER FOR DAMAGES 2 WHEREFORE, Plaintiffs pray for damages and other judicial relief: 3 1. For special damages according to proof; 4 2. For general damages according to proof, including emotional distress and mental 5 suffering; 6 3. For contract benefits under the Policy; 7 4. On the second and fourth causes of action only, for attorneys’ fees according to proof; 8 5. On the second and fourth causes of action only, for an award of punitive and/or 9 exemplary damages pursuant to Civil Code section 3294 in an amount to punish Defendant and DOES 10 1 through 10, and each of them, and deter them from engaging in similar conduct in the future; 11 6. On the third cause of action only, for injunctive relief; 12 7. On the fourth cause of action only, for treble damages; 13 8. For pre-judgment interest as permitted by law; 14 9. For Plaintiffs’ costs and expenses of suit; and 15 10. For such other and further relief as the Court deems just and proper. 16 ABIR COHEN TREYZON SALO, LLP 17 18 Dated: July 3, 2024 By:____________________________________ 19 Sara A. McClain, Esq. Attorneys for Plaintiffs DOUGLAS NORD and 20 FRANCES NORD 21 22 DEMAND FOR JURY TRIAL 23 Plaintiffs request a jury trial on all causes of action alleged. 24 ABIR COHEN TREYZON SALO, LLP 25 26 Dated: July 3, 2024 By:____________________________________ Sara A. McClain, Esq. 27 Attorneys for Plaintiffs DOUGLAS NORD and 28 FRANCES NORD 10 PLAINTIFFS’ COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL