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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Oct-30-2014 10:34 am
Case Number: CGC-14-539654
Filing Date: Oct-29-2014 10:33
Filed by: ALISON AGBAY
Juke Box: 001 Image: 04673203
NOTICE OF ENTRY OF ORDER/NOTICE OF RULING FILED
SERGEY KHOLOPOV et al VS. IRINA LITVAK et al
001004673203
Instructions:
Please place this sheet on top of the document to be scanned.CIV-130
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address):
Alexei Kuchinsky SBN: 279405
| Klein Law Group
Two Embarcadero Center, Suite 1800
San Francisco, CA 94111
TELEPHONE NO. 415 693-9107
E-MAIL ADDRESS (Optiona): legalbiz@pacbell.net
ATTORNEY FOR (Name): Siarhei Ahanesian and Sergey Kholopov
FAXNO. (Optiona): 415 693-9222
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO
REET appress: 400 McAllister Street
MAILING ADDRESS: 400 McAllister Street
city aND zip cope: San Francisco, 94102
srancy name: Civic Center Courthouse
PLAINTIFF/PETITIONER: Siarhei Ahanesian and Sergey Kholopov
DEFENDANT/RESPONDENT: Irina Litvak and Diana Shpak dba "Red Tavern"
FOR COURT USE ONLY
wy sony “a
San Fran 2 Per .
Bneisce County Superior Court
ULT 2 372014
CLERK OF THE COURT
BY: Al ban
Spi;
p
NOTICE OF ENTRY OF JUDGMENT
OR ORDER
C1 unuiitep case
(Amount demanded
exceeded $25,000)
(Check one): C7 umitep case
(Amount demanded was
$25,000 or less)
CASE NUMBER:
CGC 14 539654
TO ALL PARTIES :
1. Ajudgment, decree, or order was entered in this action on (date): October 22, 2014
2. Acopy of the judgment, decree, or order is attached to this notice.
Date: October 27, 2014
Alexei Kuchinsky
>
(TYPE OR PRINT NAMEOF [X_] ATTORNEY PARTY WITHOUT ATTORNEY)
] ey
Page 1 of 2
Form Approved for Optional Use www.courtinfo.ca.gov_
“seal Counel of Cait NOTICE OF ENTRY OF JUDGMENT OR ORDER \Westaw Dac &Fom Ber
Civ-130 [New January 1, 2010}CIV-130
PLAINTIFF/PETITIONER: Siarhei i Sergey Kholopoy CASE NUMBER:
| Siarhei Ahanesian and Sergey POV CGC 14 339654
DEFENDANT/RESPONDENT: Irina Litvak and Diana Shpak dba "Red Tavern"
PROOF OF SERVICE BY FIRST-CLASS MAIL
NOTICE OF ENTRY OF JUDGMENT OR ORDER
(NOTE: You cannot serve the Notice of Entry of Judgment or Order if you are a party in the action. The person who served
the notice must complete this proof of service.)
1. | am atleast 18 years old and not a party to this action. | am a resident of or employed in the county where the mailing took
place, and my residence or business address is (specify): Two Embarcadero Center, Suite 1800, San Francisco, CA 94111
2. | served a copy of the Notice of Entry of Judgment or Order by enclosing it in a sealed envelope with postage
fully prepaid and (check one):
a. [_] deposited the sealed envelope with the United States Postal Service
b. Eg placed the sealed envelope for collection and processing for mailing, following this business's usual practices,
with which | am readily familiar. On the same day correspondence is placed for collection and mailing, it is
deposited in the ordinary course of business with the United States Postal Service.
3. The Notice of Entry of Judgment or Order was mailed:
a. on (date): October 27, 2014
b. from (city and state): San Francisco, California
4. The envelope was addressed and mailed as follows:
a. Name of person served: c. Name of person served:
Michael Martinovsky, Esq.
Street address: 2171 JUNIPERO SERRA BLVD, STE 230 Street address:
City: DALY CITY City:
State and zip code: CA 94014 State and zip code:
b. Name of person served: d. Name of person served:
Street address: Street address:
City: City:
State and zip code: State and zip code:
[1 Names and addresses of additional persons served are attached. (You may use form POS-030(P).)
5. Number of pages attached__3__.
| declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date: October 27, 2014
Celeste Ariel Peifer
(TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT)
Page 20f2
(CIV-130 [New January 1, 2010] NOTICE OF ENTRY OF JUDGMENT OR ORDERCoN DH MH &F YW HY =
a a ee
ont DAD HW &F WN KF CO
19
William P. Klein (State Bar No. 148867)
KLEIN LAW GROUP
San Fens Ca ONT Se 1800 FILED
Tel: (415) 693-9107 Frentboo Sort
Pax: {413)603.9299 sen County Supsro
Email: alexei@sfbizlaw.com OCT 22 2014
Attorneys for Plaintiffs/Cross-Defendants
Kholopov and Ahanesian CLEBK OFTHE COURT
ot Deputy Clerk
SUPERIOR COURT OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
Alexei Kuchinsky (Sat Bar No. Tasso)
UNLIMITED JURISDICTION
SERGEY KHOLOPOV AND SIARHEI CASE NO.: CGC-14-539654
(AHANESIAN
RESERVATION NO.: 081314-06.
PLAINTIFFS,
VS. —{PROPOSED] ORDER
RE SEMUMER
IRINA LITVAK, INDIVIDUALLY (DBA . .
“RED TAVERN"); DIANA SHPAK, Hearing Date: she 2, 2014
INDIVIDUALLY (DBA “RED TAVERN”); | Time: :
AND DOES 1 THROUGH 25, Dept: 302
Judge: Hon. Emest L. Goldsmith
DEFENDANTS.
Action Filed: June 4, 2014
Trial Date:
IRINA LITVAK, INDIVIDUALLY (DBA
“RED TAVERN”), DIANA SHPAK,
INDIVIDUALLY (DBA “RED TAVERN”);
CROSS-
COMPLAINANTS;
VS,
SERGEY KHOLOPOV AND SIARHEI
AHANESIAN, AND DOES 1 THROUGH 10,
CROSS-
DEFENDANTS:
1
-fPROPOSED}-ORDERoC me ND HW PF YW NY
Plaintiffs/Cross-Defendants Sergey Kholopov and Siarhei Ahanesian’s ("Plaintiff/Cross-
Defendants") Demurrer to the first, second, third, and fourth causes of action alleged in the Cross-
Complaint of Defendants/Cross-Complainant Irina Litvak and Diana Shpak (“Defendants/Cross-
Complainant”) came on regularly for hearing on October 22, 2014, before the Honorable Judge of
the Superior Court, Earnest L. Goldsmith. The matter was submitted based upon the tentative
decision. Having read the papers in support of Demurrer, Opposition and Reply, the Court makes
the following rulings:
IT IS ORDERED that:
The Cross-Defendants' Demurrer to the First Cause of Action for Fraudulent Concealment
is sustained without leave to amend pursuant to C.C.P. 430.10(e). To plead a cause of action for
fraudulent concealment, the Cross-Complainants must allege that the Cross-Defendants were in a
fiduciary relationship with the Cross-Complainants. Roddenberry v. Roddenberry (1996) 44
Cal.App.4th 634, 665-66; Restatment.3d, Agency 8.01. Itis undisputed that Cross-Defendants
were employees of the Cross-Complainants and employees do not have a fiduciary relationship
with their employers. See Calvao v. Super. Ct. (1988) 201 Cal.App.3d 921, 923 (holding there is
no confidential or fiduciary relationship in an employment contract context). Cross-Complainants
fail to show in what manner they can amend the Cross-Complaint to cure the defect. Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349. Furthermore, a fraudulent concealment cause of action must
be pled with specificity including who concealed what information from whom, when the alleged
concealments occurred, and how the concealments occurred. See Stansfield v. Starkey (1990) 220
Cal.App.3d 59, 73-74.
The Demurrer to the Second Cause of Action for Conspiracy to Defraud is sustained
without leave to amend pursuant to C.C.P. 430.10(e). The Cross-Complaint fails to satisfy the
requirement that a conspiracy cause of action be grounded in an underlying tort. See Applied
Equip. Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-11.
The Demurrer to the Third Cause of Action for Breach of Contract is sustained with 20
days leave to amend pursuant to C.C.P. 430.10(e). The Cross-Complaint must allege the specific
parties to the employment contract and the terms of the employment contract the Cross-
[PROROSED} ORDERoe NAH Bw N
10
Defendants allegedly violated in addition to the 15% service charge policy. See, e.g., Construction
Protective Svcs. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199; see also, Careau & Co. v.
Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388. This cause of action
must also comply with C.R.C. 2.112 and state which party is asserting the cause of action since
more than one party is represented on the pleadings, C.R.C. 2.112.
The Demurrer to the Fourth Cause of Action for Unjust Enrichment is sustained without
leave to amend pursuant to C.C.P. ? 430.10(e). Unjust enrichment is not a valid cause of action but
rather a "basis for obtaining restitution” and this cause of action fails as a matter of law. See
McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1490; see also McBride v.
Boughton (2004) 123 Cal.App.4th 379, 387.
oct
pate, OC) 222014
{PROROSED] ORDER
Preview
SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Oct-30-2014 10:34 am Case Number: CGC-14-539654 Filing Date: Oct-29-2014 10:33 Filed by: ALISON AGBAY Juke Box: 001 Image: 04673203 NOTICE OF ENTRY OF ORDER/NOTICE OF RULING FILED SERGEY KHOLOPOV et al VS. IRINA LITVAK et al 001004673203 Instructions: Please place this sheet on top of the document to be scanned.CIV-130 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): Alexei Kuchinsky SBN: 279405 | Klein Law Group Two Embarcadero Center, Suite 1800 San Francisco, CA 94111 TELEPHONE NO. 415 693-9107 E-MAIL ADDRESS (Optiona): legalbiz@pacbell.net ATTORNEY FOR (Name): Siarhei Ahanesian and Sergey Kholopov FAXNO. (Optiona): 415 693-9222 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO REET appress: 400 McAllister Street MAILING ADDRESS: 400 McAllister Street city aND zip cope: San Francisco, 94102 srancy name: Civic Center Courthouse PLAINTIFF/PETITIONER: Siarhei Ahanesian and Sergey Kholopov DEFENDANT/RESPONDENT: Irina Litvak and Diana Shpak dba "Red Tavern" FOR COURT USE ONLY wy sony “a San Fran 2 Per . Bneisce County Superior Court ULT 2 372014 CLERK OF THE COURT BY: Al ban Spi; p NOTICE OF ENTRY OF JUDGMENT OR ORDER C1 unuiitep case (Amount demanded exceeded $25,000) (Check one): C7 umitep case (Amount demanded was $25,000 or less) CASE NUMBER: CGC 14 539654 TO ALL PARTIES : 1. Ajudgment, decree, or order was entered in this action on (date): October 22, 2014 2. Acopy of the judgment, decree, or order is attached to this notice. Date: October 27, 2014 Alexei Kuchinsky > (TYPE OR PRINT NAMEOF [X_] ATTORNEY PARTY WITHOUT ATTORNEY) ] ey Page 1 of 2 Form Approved for Optional Use www.courtinfo.ca.gov_ “seal Counel of Cait NOTICE OF ENTRY OF JUDGMENT OR ORDER \Westaw Dac &Fom Ber Civ-130 [New January 1, 2010}CIV-130 PLAINTIFF/PETITIONER: Siarhei i Sergey Kholopoy CASE NUMBER: | Siarhei Ahanesian and Sergey POV CGC 14 339654 DEFENDANT/RESPONDENT: Irina Litvak and Diana Shpak dba "Red Tavern" PROOF OF SERVICE BY FIRST-CLASS MAIL NOTICE OF ENTRY OF JUDGMENT OR ORDER (NOTE: You cannot serve the Notice of Entry of Judgment or Order if you are a party in the action. The person who served the notice must complete this proof of service.) 1. | am atleast 18 years old and not a party to this action. | am a resident of or employed in the county where the mailing took place, and my residence or business address is (specify): Two Embarcadero Center, Suite 1800, San Francisco, CA 94111 2. | served a copy of the Notice of Entry of Judgment or Order by enclosing it in a sealed envelope with postage fully prepaid and (check one): a. [_] deposited the sealed envelope with the United States Postal Service b. Eg placed the sealed envelope for collection and processing for mailing, following this business's usual practices, with which | am readily familiar. On the same day correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service. 3. The Notice of Entry of Judgment or Order was mailed: a. on (date): October 27, 2014 b. from (city and state): San Francisco, California 4. The envelope was addressed and mailed as follows: a. Name of person served: c. Name of person served: Michael Martinovsky, Esq. Street address: 2171 JUNIPERO SERRA BLVD, STE 230 Street address: City: DALY CITY City: State and zip code: CA 94014 State and zip code: b. Name of person served: d. Name of person served: Street address: Street address: City: City: State and zip code: State and zip code: [1 Names and addresses of additional persons served are attached. (You may use form POS-030(P).) 5. Number of pages attached__3__. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: October 27, 2014 Celeste Ariel Peifer (TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT) Page 20f2 (CIV-130 [New January 1, 2010] NOTICE OF ENTRY OF JUDGMENT OR ORDERCoN DH MH &F YW HY = a a ee ont DAD HW &F WN KF CO 19 William P. Klein (State Bar No. 148867) KLEIN LAW GROUP San Fens Ca ONT Se 1800 FILED Tel: (415) 693-9107 Frentboo Sort Pax: {413)603.9299 sen County Supsro Email: alexei@sfbizlaw.com OCT 22 2014 Attorneys for Plaintiffs/Cross-Defendants Kholopov and Ahanesian CLEBK OFTHE COURT ot Deputy Clerk SUPERIOR COURT OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO Alexei Kuchinsky (Sat Bar No. Tasso) UNLIMITED JURISDICTION SERGEY KHOLOPOV AND SIARHEI CASE NO.: CGC-14-539654 (AHANESIAN RESERVATION NO.: 081314-06. PLAINTIFFS, VS. —{PROPOSED] ORDER RE SEMUMER IRINA LITVAK, INDIVIDUALLY (DBA . . “RED TAVERN"); DIANA SHPAK, Hearing Date: she 2, 2014 INDIVIDUALLY (DBA “RED TAVERN”); | Time: : AND DOES 1 THROUGH 25, Dept: 302 Judge: Hon. Emest L. Goldsmith DEFENDANTS. Action Filed: June 4, 2014 Trial Date: IRINA LITVAK, INDIVIDUALLY (DBA “RED TAVERN”), DIANA SHPAK, INDIVIDUALLY (DBA “RED TAVERN”); CROSS- COMPLAINANTS; VS, SERGEY KHOLOPOV AND SIARHEI AHANESIAN, AND DOES 1 THROUGH 10, CROSS- DEFENDANTS: 1 -fPROPOSED}-ORDERoC me ND HW PF YW NY Plaintiffs/Cross-Defendants Sergey Kholopov and Siarhei Ahanesian’s ("Plaintiff/Cross- Defendants") Demurrer to the first, second, third, and fourth causes of action alleged in the Cross- Complaint of Defendants/Cross-Complainant Irina Litvak and Diana Shpak (“Defendants/Cross- Complainant”) came on regularly for hearing on October 22, 2014, before the Honorable Judge of the Superior Court, Earnest L. Goldsmith. The matter was submitted based upon the tentative decision. Having read the papers in support of Demurrer, Opposition and Reply, the Court makes the following rulings: IT IS ORDERED that: The Cross-Defendants' Demurrer to the First Cause of Action for Fraudulent Concealment is sustained without leave to amend pursuant to C.C.P. 430.10(e). To plead a cause of action for fraudulent concealment, the Cross-Complainants must allege that the Cross-Defendants were in a fiduciary relationship with the Cross-Complainants. Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 665-66; Restatment.3d, Agency 8.01. Itis undisputed that Cross-Defendants were employees of the Cross-Complainants and employees do not have a fiduciary relationship with their employers. See Calvao v. Super. Ct. (1988) 201 Cal.App.3d 921, 923 (holding there is no confidential or fiduciary relationship in an employment contract context). Cross-Complainants fail to show in what manner they can amend the Cross-Complaint to cure the defect. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. Furthermore, a fraudulent concealment cause of action must be pled with specificity including who concealed what information from whom, when the alleged concealments occurred, and how the concealments occurred. See Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73-74. The Demurrer to the Second Cause of Action for Conspiracy to Defraud is sustained without leave to amend pursuant to C.C.P. 430.10(e). The Cross-Complaint fails to satisfy the requirement that a conspiracy cause of action be grounded in an underlying tort. See Applied Equip. Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-11. The Demurrer to the Third Cause of Action for Breach of Contract is sustained with 20 days leave to amend pursuant to C.C.P. 430.10(e). The Cross-Complaint must allege the specific parties to the employment contract and the terms of the employment contract the Cross- [PROROSED} ORDERoe NAH Bw N 10 Defendants allegedly violated in addition to the 15% service charge policy. See, e.g., Construction Protective Svcs. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199; see also, Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388. This cause of action must also comply with C.R.C. 2.112 and state which party is asserting the cause of action since more than one party is represented on the pleadings, C.R.C. 2.112. The Demurrer to the Fourth Cause of Action for Unjust Enrichment is sustained without leave to amend pursuant to C.C.P. ? 430.10(e). Unjust enrichment is not a valid cause of action but rather a "basis for obtaining restitution” and this cause of action fails as a matter of law. See McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1490; see also McBride v. Boughton (2004) 123 Cal.App.4th 379, 387. oct pate, OC) 222014 {PROROSED] ORDER