On December 06, 2016 aMotion-Secondarywas filedinvolving a dispute betweenAlyssa O'Connell,Anish Jain,Brian Wagner,Daniel Robles,Devin Elting,Elena Ricardo,Jennifer Mak,Johanna S. Karlin,John Ambrosio,John Curtin,Jonathan Fieweger,Jordani Sanchez,Joshua Berg,Kaitlin Campbell,Kristen Piro,Liam Cudmore,Maria Funcheon,M.D. Ivey,Mellisa Mickens,Mikiala Jamison,Paul Wilder,Samuel Wilder,Sarah Norris,Semi Pak,Sheresa Jenkins-Risteki,Theresa Maddicks,Tyler Strickland,Yanira Gomez,and106-108 Convent Bcr, Llc,110 Convent Bcr, Llc,145 Pineapple Llc,2363 Acp Pineapple, Llc,3660 Broadway Bcr, Llc,3750 Broadway Bcr, Llc,408-412 Pineapple, Llc,510-512 Pineapple, Llc,510-512 Yellow Apple, Llc,513 Yellow Apple, Llc,535-539 West 155 Bcr, Llc,545 Edgecombe Bcr, Llc,559 West 156 Bcr Llc,580 St. Nicholas Bcr, Llc,603-607 West 139 Bcr, Llc,605-607 West 141 Bcr, Llc,605 West 151 Bcr, Llc,Big City Acquisitions, Llc,Big City Properties, Llc,Big City Realty Management, Llc,Xyz Corporations 1-99,for Commercial - Contractin the District Court of New York County.
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FILED: NEW YORK COUNTY CLERK 03/27/2019 10:49 PM INDEX NO. 656345/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/27/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------X THERESA MADDICKS, et al., : Index No.: 656345/2016 : (NYSCEF Case) Plaintiffs, : : - against - : : BIG CITY REALTY MANAGEMENT, LLC., et al., : : Defendants. : -----------------------------------------------------------------------X MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ REQUEST FOR DISCOVERY-RELATED RELIEF 1 of 10 FILED: NEW YORK COUNTY CLERK 03/27/2019 10:49 PM INDEX NO. 656345/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/27/2019 Defendants Big City Realty Management, LLC, Big City Acquisitions, LLC, 408-412 Pineapple, LLC, 510-512 Yellow Apple, LLC, 535-539 West 155 BCR, LLC, 545 Edgecombe BCR, LLC, 106-108 Convent BCR LLC, 110 Convent BCR, LLC, 3750 Broadway BCR, LLC, 3660 Broadway BCR LLC, and 605 West 151 BCR, LLC (“Defendants”) respectfully submit this memorandum of law in opposition to the motion by Plaintiffs Theresa Maddicks, John Ambrosio, Paul Wilder, Samuel Wilder, Alyssa O’Connell, Johanna S. Karlin, Brian Wagner, Tyler Strickland, Daniel Robles, Elena Ricardo, Liam Cudmore, Jennifer Mak, Joshua Berg, Anish Jain, John Curtin, Jonathan Fieweger, Maria Funcheon, Jordani Sanchez, Melissa Mickens, M.D. Ivey, Devin Elting, Semi Pak, Kaitlin Campbell, Sara Norris, Mikiala Jamison, Sheresa Jenkins-Risteki, Yanira Gomez, and Kristin Piro (“Plaintiffs”) which seeks an order: (i) striking Defendants’ answer pursuant to CPLR § 3126(3); (ii) precluding Defendants from introducing any evidence in opposition to Plaintiffs’ complaint pursuant to CPLR § 3126(2); and/or (iii) imposing sanctions upon Defendants pursuant to Rule 202.12(f); and/or (iv) issuing a conditional order compelling Defendants to comply with their discovery obligations pursuant to CPLR § 3124. As explained below and in the accompanying Shira Goldman Moyal Affirmation (hereinafter, the “Goldman Moyal Affirmation”), Plaintiffs’ motion is without merit and should be denied in its entirety. It should be noted at the outset that Plaintiffs’ motion is procedurally defective in that it does not contain a proper affirmation of good faith and merely purports to include two letters of good faith which are in fact null and void, as explained below. Further, the Plaintiffs have not met their burden of establishing a pattern of willful and contumacious behavior by the Defendants collectively, or by any individual defendant for that matter. In fact, as will be demonstrated below, accountability for delays in the discovery phase is equally shared between counsels for both parties. 1 2 of 10 FILED: NEW YORK COUNTY CLERK 03/27/2019 10:49 PM INDEX NO. 656345/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/27/2019 For these reasons and those detailed below, the Court should deny Plaintiffs’ motion in its entirety. BACKGROUND The Court is respectfully referred to the accompanying Affirmation in Opposition for a full recitation of the relevant facts. In brief, Plaintiffs who are tenants in this purported class-action advance allegations of improprieties purportedly committed in a handful of properties owned by a number of the named Defendants and their non-party predecessors. After the putative class action was remitted to this Court on August 7, 2018, Plaintiffs served discovery on Defendants on or about September 10, 2018. Annexed to Plaintiffs’ Affirmation by Roger A. Sachar (hereinafter, the “Sachar Affirmation”) as Exhibits A through I are copies of Plaintiffs’ First Notices of Discovery and Inspection. Following the First Department’s remittitur, on or about October 8, 2018, Defendants filed their Answer. Annexed to the Goldman Moyal Affirmation as Exhibit 1 is a copy of Defendants’ answer. On October 11, 2018, Plaintiffs sent a good faith letter to Defendants. Annexed to the Sachar Affirmation as Exhibit L is a copy of Plaintiffs’ good faith letter. On October 13, 2018, Defendants filed an order to show cause, seeking to stay the instant action pending a decision from the Court of Appeals. Annexed to the Goldman Moyal Affirmation as Exhibit 2 is a copy of Defendants’ order to show cause (sans exhibits). On October 22, 2018, Justice James E. d’Auguste stayed all proceedings pending a hearing on Defendants’ order to show cause. Id. 2 3 of 10 FILED: NEW YORK COUNTY CLERK 03/27/2019 10:49 PM INDEX NO. 656345/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/27/2019 Thereafter, on December 18, 2018, following oral argument, the Court granted a limited stay. A copy of the December 18, 2018 order (hereinafter, the “Order”) is annexed to the Goldman Moyal Affirmation as Exhibit 3. Critically, in the interest of resolving all issues regarding the scope of discovery, the parties’ respective counsels orally agreed on December 18, 2018 to confer and work out a schedule specifically delineating which documents would be produced as part of discovery and which would be excluded from same. During this conversation, the parties’ counsels further agreed that in the event that they would be unable to reach an amicable agreement, they would seek the Court’s assistance regarding the scope of discovery. Notwithstanding the above oral agreement, no good faith conference ever took place. In fact, Plaintiffs’ counsel never reached out to Defendants’ counsel to parse out an appropriate discovery schedule or to discuss its proposed scope. Instead of making a good faith effort to resolve the discovery dispute, on or about January 7, 2019, Plaintiffs sent a second good faith letter, effectively reneging on the oral agreement entered into between counsels for the respective parties. Annexed to the Sachar Affirmation as Exhibit M is a copy of the second good faith letter. Unbeknownst to Defendants’ counsel, Plaintiffs’ counsel then opted to move this Court, requesting inter alia that the Court strike Defendants’ answer and impose sanctions on Defendants, neither relief being warranted. Defendants’ counsel has no doubt that an agreement, amenable to both parties, could have been reached without the need to unduly burden the Court had both parties made a genuine bona fide effort to resolve existing discovery issues. In light of Plaintiffs’ counsel’s disingenuous conduct, Defendants respectfully request the Court’s involvement and direction in defining the 3 4 of 10 FILED: NEW YORK COUNTY CLERK 03/27/2019 10:49 PM INDEX NO. 656345/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/27/2019 scope of discovery in the instant action. Defendants have always been, and remain willing and able, to enter into an agreeable discovery schedule to be articulated by the Court. Indeed, Defendants have no intention of evading their discovery obligations. For these reasons and those below, Plaintiffs’ motion should be denied. ARGUMENT I. PLAINTIFFS’ MOTION IS PROCEDURALLY DEFICIENT. The instant motion should be denied on the grounds that Plaintiffs have failed to comply with 22 N.Y.C.R.R. 202.7, which states, in pertinent part: [N]o motion shall be filed with the Court unless there have been served and filed with the motion papers... (2) with respect to a motion relating to disclosure... an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion (emphasis added). Furthermore, 22 N.Y.C.R.R. 202.7 (c) states: The affirmation of the good faith effort to resolve the issues raised by the motion shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held. In Martinez v. 1261 Realty Co. LLC, 121 A.D.3d 395 (2d Dept. 2014), the Court affirmed the denial of a motion to strike the note of issue on the grounds that the affirmation of good faith did not substantively comply with the requirements of 22 NYCRR 202.7. In Deutsch v. Grunwald, 110 A.D.3d 949, 973 N.Y.S.2d 335 (2d Dept. 2013), the Appellate Division, Second Department, reversed an order that struck the defendant’s answer, holding: The affirmation of good faith submitted by the plaintiff’s counsel did not satisfy 22 NYCRR 202.7, as it did not refer to any communications between the parties that would evince a diligent effort by the plaintiff to resolve the present discovery dispute (see 22 NYCRR 202.7[c]; Greenfield v. Board of Assessment Review for Town of Babylon, 106 4 5 of 10 FILED: NEW YORK COUNTY CLERK 03/27/2019 10:49 PM INDEX NO. 656345/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/27/2019 A.D.3d 908, 965 N.Y.S.2d 555; Yargeau v. Lasertron, 74 A.D.3d 1805, 904 N.Y.S.2d 840; Quiroz v. Beitia, 68 A.D.3d 957, 960, 893 N.Y.S.2d 70; Natoli v. Milazzo, 65 A.D.3d 1309, 1310–1311, 886 N.Y.S.2d 205; Chervin v. Macura, 28 A.D.3d 600, 602, 813 N.Y.S.2d 746; Hegler v. Loews Roosevelt Field Cinemas, 280 A.D.2d 645, 720 N.Y.S.2d 844; Barnes v. NYNEX, Inc., 274 A.D.2d 368, 711 N.Y.S.2d 893; Romero v. Korn, 236 A.D.2d 598, 654 N.Y.S.2d 38). Id. at 950. In the instant case, the proforma, cut and paste affirmations by Plaintiffs’ counsel which purport to be in good faith are notable for their omissions rather than their admissions (Exhibits L and M). Neither good faith letter cites to any communications between Plaintiffs’ counsel and this office that would evidence a bona fide attempt to resolve the discovery dispute, much less a diligent effort. In the absence of such language, affirming that Plaintiffs’ “counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion,” pursuant to 22 N.Y.C.R.R. 202.7, Plaintiffs’ motion must be denied. Crucially, like the Sachar Affirmation, the January 7, 2019 good faith letter neglects to mention relevant facts regarding the history of this litigation (Exhibit M). Indeed, neither document references the oral agreement entered into by the parties’ respective counsels on December 18, 2018. Thus, far from evincing any bona fide attempt to resolve the discovery dispute, Plaintiffs’ counsel confirms the absence of good faith in reneging on the oral agreement entered with this office and thereafter misrepresenting the communications between the parties before this Court. Further, it is evident that the oral agreement between the parties’ counsel supersedes the October 11, 2018 good faith letter, thereby rendering it null and void. Accordingly, Plaintiffs’ counsel’s reliance on same is at best, misguided and at worst, disingenuous. Similarly, the “repeated failures” alleged by Plaintiffs’ counsel are nonexistent in light of the above-referenced agreement between the parties and given that a stay of the proceeding remains in effect (Plaintiffs’ Memorandum of Law at 5). Thus, the only “repeated failures” herein 5 6 of 10 FILED: NEW YORK COUNTY CLERK 03/27/2019 10:49 PM INDEX NO. 656345/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/27/2019 are those by Plaintiffs’ counsel in reneging on its agreement with this office and thereafter litigiously bringing the instant motion rather than attempting to amicably resolve discovery issues that remain outstanding. These facts alone require denial of the motion which unequivocally violates 22 N.Y.C.R.R. 202.7. In the event that the Court considers the motion, it should still be denied for the reasons set forth below. II. DEFENDANTS’ CONDUCT CAN IN NO WAY BE CONSTRUED AS WILLFUL, DELIBERATE AND/OR CONTUMACIOUS. Defendants have been, and remain, willing to reach a mutually agreeable understanding regarding the scope of discovery, as they have been throughout the history of this litigation. Any assertion to the contrary is absolutely false. Accordingly, the instant motion should be denied out of hand for the reasons set forth above and below. The extreme penalty of striking a pleading for failure to comply with an order of disclosure should be granted only when the failure has been willful or contumacious. See Brennan v. McCarthy, 255 A.D.2d 477, 680 N.Y.S.2d 638 (2d Dept. 1998); Stathoudakis v. Kelmar Contracting Corp., 147 A.D.2d 690,538 N.Y.S.2d 297 (2d Dept. 1989); Town of East Greenbush v. Ashland Chemical Company, Division of Ashland Oil, Inc., 99 A.D.2d 604, 471 N.Y.S.2d 709 (3d Dept. 1984). Defendants’ behavior has in no way risen to the level of “willful” or “contumacious,” especially when they have entered into an oral agreement with Plaintiffs’ counsel in good faith, intending to resolve all issues regarding discovery in the instant case. It has been held that “[w]here, as here, delays in discovery were caused by both parties’ actions, the unilateral and drastic sanction of striking pleadings is inappropriate.” Gross v. 141-30 84th Road Apartment Owners Corp., 85 A.D.3d 447, 924 NYS2d 383 (1st Dept. 2011); 6 7 of 10 FILED: NEW YORK COUNTY CLERK 03/27/2019 10:49 PM INDEX NO. 656345/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/27/2019 DaimlerChrysler Insurance Co., v. Seck, 82 A.D.3d 581 (1st Dept. 2011); Sifonte v. Carol Gardens Hous. Co., 70 A.D.3d 563, 564 (1st Dept. 1979). Indeed, such drastic remedy is inappropriate absent a clear showing that defendants’ failure to comply with discovery demands was willful or contumacious. Daimler, supra; see Weissman v. 20 E. 9th St. Corp., 48 A.D.3d 242 (1st Dept. 2008). See also, Tschernia v. Embanque Capital, 161 A.D.2d, 585, 587, 555 N.Y.S.2d 164 (2d Dept. 1990); Read v. Dickson, 150 A.D.2d 543, 544, 541 N.Y.S.2d 126; Mancusi v. Middlesex Insurance Company, 102 A.D.2d 846, 476 N.Y.S.2d 616, 617 (2d Dept. 1984); and Lowitt v. Korelitz, 152 A.D.2d, 506, 544 N.Y.S.2d 12, 16 (1st Dept. 1989). Contrary to Plaintiffs’ counsel’s contention, there is no showing of willful or contumacious conduct by Defendants herein. Rather, the December 18, 2018 oral agreement between the parties’ counsel evinces Defendants’ bona fide attempt to resolve all outstanding discovery issues while Plaintiffs reneged on this agreement. In the interests of justice, where the failure to disclose is not deliberate, the severe penalty of striking an answer and/or precluding a party from testifying at trial should not be invoked. See Oberenski v. Tushinsky, 63 A.D.2d 695, 405 N.Y.S.2d 107 (2d Dept. 1989). The CPLR contemplates the striking of an answer only where there has been a conclusive demonstration that the Defendants’ failure to appear was clearly deliberate and/or contumacious. It is respectfully submitted that there has been no such showing in the Sachar Affirmation submitted in support of the instant motion. It must always be remembered that the overriding goal of Article 31 of the CPLR is not punitive but rather the liberal and full disclosure of all evidence material, necessary or relevant to the issues to be tried. Baker v. General Mills Fun Group, Inc., 101 Misc.2d 193, 420 N.Y.S.2d 7 8 of 10 FILED: NEW YORK COUNTY CLERK 03/27/2019 10:49 PM INDEX NO. 656345/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/27/2019 820, 823; C.P.L.R. §3101; Allen v. Crowell Collier Pub Co., 21 N.Y.2d 403, 288 N.Y.S.2d 449, 235 N.E.2d 430. The Courts have been extremely reluctant to impose the extreme and drastic penalty of striking a defendant’s answer even where there has been a prior order directing the defendant to submit to an Examination Before Trial or to resume discovery. It is well-established law that the striking of a defendant’s answer, and/or preclusion from testifying at trial and/or summary judgment for failure to resume discovery or to submit as ordered to depositions may not be ordered where moving affidavits fail to show conclusively that the default was clearly willful and deliberate. Levine v. Barricini, 278 A.D. 801, 104 N.Y.S.2d 288 (App. Div. 1951); La Manna Concrete Inc. v. Friedman, 34 A.D.2d 576, 309 N.Y.S.2d 711 (2d Dept. 1970); Balsam v. Frank Nicolosi Building Co., 36 A.D.2d 533, 318, N.Y.S.2d 658 (2d Dept. 1971). As above, accountability for delays in the discovery phase is equally shared between counsels for both parties. Both respective counsels entered into an oral agreement on December 18, 2018, yet neither reached out to opposing counsel to parse out an appropriate discovery. Since no good faith conference ever took place, both parties are equally accountable. Accordingly, it is respectfully submitted that the Plaintiffs have not submitted any proof that the Defendants’ action was willful, deliberate and/or contumacious. In light of the aforementioned, and inasmuch as there has been no showing that there has been any willful refusal to obey the Court’s order, the drastic remedies of striking Defendants’ answer and of precluding Defendants from testifying are clearly not warranted. For the same reason, were sanctions to be imposed on Defendants pursuant to Rule 202.12(f), they should equally be imposed on Plaintiffs. Thus, Plaintiffs’ motion is without merit and should be denied in its entirety. 8 9 of 10 FILED: NEW YORK COUNTY CLERK 03/27/2019 10:49 PM INDEX NO. 656345/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 03/27/2019 Plaintiffs' WHEREFORE, Defendants respectfully request that this Court deny motion in its entirety, and grant Defendants such other and further relief as this Court deems just and proper. Dated: New York, New York March 27, 2019 Shira Goldman Moyal, Esq. Koss & Schonfeld, LLP Attorneys for Defendants 90 John Street - Suite 503 New York, NY 10038 TO: Roger A. Sachar, Esq. Newman Ferrara LLP Attorneys for Plaintiffs 1250 Broadway, 27th Floor New York, NY 10001 9 10 of 10
Case Info
Judge
Sabrina KrausTrack Judge’s New Case
Case No.
(Subscribe to View)
Document Filed Date
March 27, 2019
Case Filing Date
December 06, 2016
County
Category
Commercial - Contract
Status
Active-Restored
Parties
106-108 CONVENT BCR, LLCDefendant
110 CONVENT BCR, LLCDefendant
145 PINEAPPLE LLCDefendant
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3660 BROADWAY BCR, LLCDefendant
3750 BROADWAY BCR, LLCDefendant
408-412 PINEAPPLE, LLCDefendant
510-512 PINEAPPLE, LLCDefendant
510-512 YELLOW APPLE, LLCDefendant
513 YELLOW APPLE, LLCDefendant
535-539 WEST 155 BCR, LLCDefendant
545 EDGECOMBE BCR, LLCDefendant
559 WEST 156 BCR LLCDefendant
580 ST. NICHOLAS BCR, LLCDefendant
603-607 WEST 139 BCR, LLCDefendant
605-607 WEST 141 BCR, LLCDefendant
605 WEST 151 BCR, LLCDefendant
Alyssa O'connellPlaintiff
Anish JainPlaintiff
BIG CITY ACQUISITIONS, LLCDefendant
BIG CITY PROPERTIES, LLCDefendant
BIG CITY REALTY MANAGEMENT, LLCDefendant
BRETT, MATTHEW SAMUELAttorney for the Defendant
Brian WagnerPlaintiff
Daniel RoblesPlaintiff
Devin EltingPlaintiff
Elena RicardoPlaintiff
Jennifer MakPlaintiff
Johanna S. KarlinPlaintiff
John AmbrosioPlaintiff
John CurtinPlaintiff
Jonathan FiewegerPlaintiff
Jordani SanchezPlaintiff
Joshua BergPlaintiff
Kaitlin CampbellPlaintiff
Kristen PiroPlaintiff
Liam CudmorePlaintiff
Maria FuncheonPlaintiff
M.d. IveyPlaintiff
Mellisa MickensPlaintiff
Mikiala JamisonPlaintiff
MOYAL, SHIRAAttorney for the Defendant
MOYAL, SHIRAAttorney for the Defendants
OZAROW, JONATHAN ADAMAttorney for the Plaintiff
Paul WilderPlaintiff
SACHAR, ROGER ALANAttorney for the Plaintiff
Samuel WilderPlaintiff
Sarah NorrisPlaintiff
SCHONFELD, SIMCHA DAttorney for the Defendant
SCHONFELD, SIMCHA DAttorney for the Defendants
Semi PakPlaintiff
Sheresa Jenkins-ristekiPlaintiff
Theresa MaddicksPlaintiff
Tyler StricklandPlaintiff
XYZ CORPORATIONS 1-99Defendant
Yanira GomezPlaintiff
LUCAS FERRARAAttorneys for Plaintiffs
JARRED KASSENOFFAttorney
DANIEL MILSTEINAttorney
FRANK FERRARAAttorneys for Plaintiffs
RHONDA GAYNIERAttorney
JACOB SCHINDELHEIMAttorney
DANIEL SCHONFELDAttorney
SIMCHA DAVIDAttorney
SARA GOLDMANAttorney
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HWY LOGISTICS, INC., A CALIFORNIA CORPORATION, ET AL. VS SAMUEL CHIH, ET AL.
Aug 20, 2024 |22STCV32211
Case Number: 22STCV32211 Hearing Date: August 20, 2024 Dept: 55 NATURE OF PROCEEDINGS: Defendants Samuel Chih and Charlene Yuki Lis Demurrer to Third Amended Complaint BACKGROUND Plaintiffs HWY LOGISTIC, INC. and EVERRANK EXPRESS INC. (Plaintiffs) bring this action against Defendants SAMUEL CHIH (Chih) and CHARLENE Y. LI (Li) (Chih and Li collectively referred to as Defendants) based on Chihs alleged embezzlement of funds from Plaintiffs when he served as CEO of Hwy Logistic, Inc. The Third Amended Complaint (TAC) also alleges that Li, Chihs wife, engaged in fraud by receiving Chihs salary in her name and that she and Chih engaged in a fraudulent scheme to steal and dissipate Plaintiffs assets and embezzle Plaintiffs funds. Defendants filed a demurrer to the third and fourteenth causes of action in the TAC, and to all causes of action for Li. Plaintiffs oppose the demurrer. Relevant here, the TAC alleges against Chih the Third Cause of Action for Violation of California Penal Code §§ 484, 487, 496, 502, and 503 and the Fourteenth Cause of Action for Negligence Per Se. The TAC alleges the following causes of action against both Defendants (i.e., including Li): 4) Conversion Count One; 9) Conversion Count Two; 11) Conversion Count Three; 15) Civil Conspiracy; 18) Declaratory Relief; and 20) Unjust Enrichment. While Defendants Notice of Demurrer lists the Fourteenth Cause of Action, the memorandum of points and authorities does not argue against that Cause of Action. Thus, the Court does not consider the Demurrer to include the Fourteenth Cause of Action. EVIDENTIARY RULINGS Plaintiffs request that the Court take judicial notice of the 07/24/23 and 02/06/24 Minute Orders, referred to as Exhibits A and B, are GRANTED under Evid. Code § 452(d), as both are court documents. LEGAL STANDARD A demurrer is a pleading that may be used to test the legal sufficiency of the factual allegations in the complaint. (Code of Civ. Proc. § 430.10.) ¿¿ In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled that a demurrer lies only for defects appearing on the face of the complaint[.] (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Guclimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.) When ruling on a demurrer, the Court may only consider the complaints allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations plead or the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.) Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 128.) However, [i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). ANALYSIS As a general matter, [d]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. (Lickiss v. Fin. Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) A demurrer for uncertainty does not address whether the pleading fails to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations actually made. (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.) Rather, a demurrer is intended to address whether a pleading is so incomprehensible that a defendant cannot understand the allegations actually made. (Id. at p. 146.) Defendants argue that the Third Cause of Action is uncertain, ambiguous, and unintelligible. The cause of action details the allegations regarding how Defendants stole Plaintiffs corporate assets and embezzled their funds for the Defendants own gain. (See TAC ¶¶ 157-159.) There is nothing uncertain or vague about the scope of the allegations lodged against Chih in this claim, and the demurrer for uncertainty therefore is unsubstantiated and overruled. 1. Third Cause of Action Violation of California Penal Code §§ 484, 487, 496, 502, and 503 Defendants demurrer to the Third Cause of Action argues that Plaintiffs' Criminal Code Causes of Action are unfounded (See Mot, pp. 2-3). They further argue that Penal Code Sections 484, 487, and 503 do not give rise to civil remedies (Id. pp. 3-4). However, as the Court previously held, Penal Code §§ 496 and 502 expressly provides for both criminal and civil liability. Penal Code § 496 proscribes receiving or concealing stolen property and Penal Code § 502(c)(1)-(14) proscribes fourteen different types of conduct related to knowingly and without permission accessing computers and/or computer systems. Both statutes provide that a person who violates the statute is subject to a civil action by an injured party. Penal Code §§ 496(c); 502(e); Siry Inv., L.P. v. Farkhondehpour (2022) 13 Cal. 5th 333, 361 (party may recover damages under Section 496(c) when property has been obtained in any manner constituting theft). Penal Code § 484 is the criminal charge for theft and it does not expressly provide for civil liability. But, arguably, Penal Code §§ 484 and 496 are read together to support a private right of action for violation of Section 484. Penal Code section 484, subdivision (a) describes the acts constituting theft to include theft by false pretense, which is the consensual but fraudulent acquisition of property from its owner. Bell v. Feibush (2013) 212 Cal. App. 4th 1041, 1049 (upholding civil liability under Penal Code Section 496). Penal Code § 503 is the criminal charge for embezzlement, and Penal Code § 487 is for grand theft. In Bell v. Feibush the Court of Appeal held that Penal Code section 496(c) permits any person injured under section 496(a) to bring a private right of action. (Bell, supra, 212 Cal. App. 4th 1047.) Plaintiffs have sufficiently alleged stolen property because the TAC alleges that Defendants stole Plaintiffs corporate assets and embezzled their funds for the Defendant Chihs own gain. (TAC ¶¶ 157-159.) Specifically, Chih and his wife Li misappropriated over $91,195.57 from Plaintiffs between April 2022 and September 2022 by accessing Plaintiffs bank accounts and computer systems without authorization. (Id. ¶ 160.) Chih continued these actions even after his employment ended. (Id.¶¶ 163-165.) Plaintiffs further allege that Chih also misrepresented the purchase of two cargo container chassis, leading to additional financial penalties for Plaintiffs. (Id. ¶¶ 167-171.) Based on this, the TAC sufficiently alleges theft, embezzlement, and unauthorized data access under California Penal Code §§ 484, 496, and 502. Defendants argue next that the TAC does not identify which sections of 502 were violated by Defendants alleged conduct. Yet the TAC alleges that Defendant Chih violated Penal Code §502 (c) (1)(A)(B), §502 (c) (2), §502 (c) (3), and §502 (c) (7). (Id. ¶ 178-183.) Plaintiffs seek damages for Defendants' conduct, including treble, attorney fees, and potentially punitive damages. (Id. ¶¶ 187-190.) Thus, at the pleading stage, Plaintiffs have sufficiently alleged a private right of action under Penal Code section 496(c), and the demurrer is overruled. 2. Co-Defendant Liability Defendants argue that the whole complaint against Li should be dismissed because the TAC only alleges that Li engaged in fraud by receiving Chihs salary as his wife. (Mot. p. 7:21-27.) The TAC does plead liability because Plaintiffs allege that Li aided and abetted Chihs theft and embezzlement by accepting the payroll checks. (TAC ¶¶ 70-75.) Plaintiffs further allege that Defendants conduct was intended to defraud both Plaintiffs and the IRS. (Id. ¶ 73.) These allegations are sufficient to attach liability against Li. The Court therefore overrules the demurrer. CONCLUSION Defendants Samuel Chih and Charlene Yuki Lis Demurrer to Third Amended Complaint is OVERRULED. Defendants are ordered to file an answer within ten 10 days.
Ruling
Aug 19, 2024 |23STCV17871
Case Number: 23STCV17871 Hearing Date: August 19, 2024 Dept: 54 Superior Court of California County of Los Angeles Heno fa*gerian, Plaintiff, Case No.: 23STCV17871 vs. [Tentative] Ruling Pacific Auto Body & Paint Inc., Markar Halmet Khanyan, and DOES 1 through 100 Defendants. Hearing Date: August 19, 2024 Department 54, Judge Maurice Leiter Motion to Compel Further Responses to Form Interrogatories; Motion to Compel Further Responses to Special Interrogatories; Motion to Compel Further Responses to Production of Documents Moving Party: Defendant Markar Hamlet Khanyan Responding Party: Heno fa*gerian T/R: THE MOTIONS ARE GRANTED. DEFENDANTS REQUEST FOR SANCTIONS IS GRANTED IN THE REDUCED AMOUNT OF $530. DEFENDANT TO NOTICE. If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing. BACKGROUND Plaintiff Heno fa*gerian filed this lemon law action against Defendants Pacific Auto Body & Paint Inc., and Markar Hamlet Khanyan. ANALYSIS Motion to Compel Further Responses to Form Interrogatories Defendant moves the Court to issue an order compelling Plaintiff to produce further responses to Defendants Form Interrogatories, Set One, Nos., 2.3, 2.4, 2.6, 2.7. 7.1, 7.2, 8.4, 8.7, 9.2, 12.2-12.6, 14.1, 14.2, 17.1, 50.1, and 50.2 within ten days of the hearing. Plaintiff has the burden to justify each of its objections. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220 - 221.) Plaintiff has not filed an opposition to Defendants motion. Defendant moves to compel further responses on the grounds that Plaintiffs interrogatory responses are untimely and served without verifications, and therefore waived, necessitating. (Appleton v. Superior Court (1988) Cal. App. 3d 632, 636.) Additional responses are required. The facts sought, those presently relied upon by plaintiffs to prove their case, are discoverable no matter how they came into the attorneys possession. (Southern Pacific Co. v. Superior Court (1969) 3 Cal.App.3d 195, 199 [83 Cal.Rptr. 231.) Further, [v]erification of the answers is in effect a declaration that the party has disclosed all information which is available to him. . . . [A]n answer which supplies only a portion of the information sought is wholly insufficient. Likewise, a party may not provide deftly worded conclusionary answers designed to evade a series of explicit questions. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782-783 [149 Cal.Rptr. 499].) Plaintiff has clearly not disclosed all information which is available to him. Finally, it is not appropriate to incorporate another pleading by reference: [I]t is not proper to answer by stating, . . . See my pleading. (Deyo, 84 Cal.App.3d at p. 784.) The party raising objections has the burden of demonstrating that the objections apply. See Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citing Coy v. Superior Court (1962) 58 Cal.2d 210, 220-21 (if a timely motion to compel has been filed, the burden is on responding party to justify any objection). In failing to file a timely opposition, Plaintiff as the party raising the objections has failed to justify the objection. Plaintiff must provide code compliant responses. The Court GRANTS Plaintiffs motion compelling Defendant to produce the request form interrogatory responses. Motion to Compel Further Responses to Special Interrogatories Defendant moves the Court issue an order compelling Plaintiff to produce responses to Defendants Special Interrogatories, Set One, Nos. 3, 4, 7, 11,12, 15, 16, 19, 20, 22-24, and 26-34, seeking the identification of key witnesses. Additional responses are required. Plaintiff must provide code compliant responses. Defendants Motion to Compel Defendants Further Responses to Special Interrogatories, Set One, is GRANTED. Motion to Compel Further Production of Documents Any party may obtain discovery by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action. (CCP § 2031.010.) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponents control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. (CCP § 2025.480(a).) Responses to Defendants requests are required. Plaintiff has not filed an opposition. Defendants motions to compel Plaintiffs responses to form interrogatories, and requests for production is GRANTED. Mandatory Sanctions Interrogatories & Requests for Production Sanctions are mandatory against the party, the attorney, or both whose failure to serve a timely response to the request necessitated the motion to deem request for admissions as admitted. CCP § 2033.280(c); see also Cal. Rules of Court R. 3.1348(a) (the court can award sanctions under the Discovery Act in favor of a party seeking to compel discovery even though no opposition was filed, the opposition was withdrawn, or the requested discovery was provided to the moving party after the motion was filed). Defendant requests sanctions of $2,560.00, based on the hourly billing rate of $175.00 applied to: 6 hours spent preparing the three motions and separate statements, 1.0 hours of hearing attendance, and the $60.00 filing fee, plus an estimated 4 hours on preparing the motions reply to an anticipated opposition and hearing appearance time. In view of the totality of the circ*mstances including Defendants lack of opposition and the similarity of the motions to each other, the Court finds the reasonable amount of attorneys fees and costs incurred for he work performed in connection with the pending motions against Defendants is $530.00, reflecting 2 hours incurred at $175 per hour (0.75 hour for drafting one motion and 1 hour for drafting the remaining two motions at 0.5 hour each, and 0.25 hour for attending the hearing on the three pending motions) plus $180 in filing fees. Defendants request for sanctions against Defendant is GRANTED in the reduced total amount of $530.00. Sanctions are payable within 30 days of service of this order. Superior Court of California County of Los Angeles Heno fa*gerian, Plaintiff, Case No.: 23STCV17871 vs. [Tentative] Ruling Pacific Auto Body & Paint Inc., Markar Halmet Khanyan, and DOES 1 through 100 Defendants. Hearing Date: August 19, 2024 Department 54, Judge Maurice Leiter Motion to Deem Requests for Admission (Set One) Moving Party: Defendant Markar Hamlet Khanyan Responding Party: Heno fa*gerian T/R: THE MOTION IS GRANTED. DEFENDANTS REQUEST FOR SANCTIONS IS GRANTED IN THE REDUCED AMOUNT OF $225. DEFENDANT TO NOTICE. If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing. BACKGROUND Plaintiff Heno fa*gerian filed this lemon law action against Defendants Pacific Auto Body & Paint Inc., and Markar Hamlet Khanyan. ANALYSIS On June 3, 2024, Defendant filed a motion to deem requests for admissions, admitted. The Code of Civil Procedure requires a response from the party to whom the request for admissions is directed within 30 days after service of the request for admissions. (Code Civ. Proc., § 2033.250(a).) If the party fails to serve a timely response, the party to whom the requests for admission are directed waives any objection to the requests. (Code Civ. Proc., § 2033.280(a).) The requesting party may then move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for monetary sanction under Chapter 7. (Code Civ. Proc., § 2033.280(b).) Plaintiff failed to respond to Defendants Request for Admissions, Set One, in a timely manner per CCP § 2033.250(a), as Plaintiff has not provided any response since Plaintiff was served with Defendants Request for Admissions, Set One, on February 8, 2024. Defendants request to deem as admitted RFAs Set One is GRANTED. Defendant requests sanctions of $1,743.00. This amount is based on the hourly billing rate of $165.00 applied to: 6.7 hours spent preparing the Motion to Deem Requests for Admissions, Admitted, 1.0 hours of hearing attendance, and the $60.00 filing fee, plus an estimated 2.5 hours on preparing the motions reply to an anticipated opposition and appearance time. The Court finds the reasonable amount of attorneys fees and costs incurred for he work performed in connection with the pending motion against Plaintiff is $225.00, reflecting 1.0 hour incurred at $165.00 per hour plus $60 in filing fees. Defendants request for sanctions against Plaintiff is GRANTED in the reduced total amount of $225.00. Sanctions are payable within 30 days of service of this order. Superior Court of California County of Los Angeles Heno fa*gerian, Plaintiff, Case No.: 23STCV17871 vs. [Tentative] Ruling Pacific Auto Body & Paint Inc., Markar Halmet Khanyan, and DOES 1 through 100 Defendants. Hearing Date: August 19, 2024 Department 54, Judge Maurice Leiter Motion to Strike Moving Party: Defendant Markar Hamlet Khanyan Responding Party: Heno fa*gerian T/R: DEFENDANTS MOTION TO STRIKE IS GRANTED IN PART. DEFENDANT TO NOTICE. If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing. The Court considers the moving papers. No opposition has been received. BACKGROUND Plaintiff Heno fa*gerian filed this lemon law action against Defendants Pacific Auto Body & Paint Inc., and Markar Hamlet Khanyan. Defendant moves to strike the FACs request for punitive damages, on the ground that the FAC fails to plead facts sufficient to support a claim for punitive damages. (Code Civ. Proc., § 436(a).) The recovery of punitive damages is governed by Civil Code Section 3294, which specifically sets forth the type of conduct which justifies their award. Civil Code Section 3294 provides: "In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the Plaintiffs, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant." (Civil Code Section 3294(a).) Punitive damages cannot be requested for latter COAs related to breaches of an obligation arising from a contract. (See Code Civ. Proc., section 3294; see also Civil Code Section 1794(c).) The FACs request for punitive damages is improper. (Code Civ. Proc., § 436(a).) Defendant also moves to strike other allegations made in the Complaint, unrelated to punitive damages, on the grounds that the allegations are irrelevant matter. (Code Civ. Proc., § 436(a).) The Court finds those allegations are not irrelevant for purposes of the remaining causes of action for violations of the Song-Beverly Act. (Code Civ. Proc., § 436(a).) Defendant moves to strike Plaintiffs prayer for attorneys fees. "[A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement." (People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th 424, 429.) Courts may strike prayers for attorney fees where a party demonstrated no potential basis for their recovery. (Agricultural Ins. Co. v. Sup. Ct. (1999) 70 Cal.App.4th 385, 404.) However, unsupported attorneys fees allegations need not be stricken pursuant to a motion to strike, since later discovery may reveal a basis for their recovery. (Camenisch v. Sup. Ct. (1996) 44 Cal.App.4th 1689, 1699.) The Court declines to strike the request for attorneys fees at this time. Discovery may reveal a basis for the recovery of attorney fees. The motion to strike is GRANTED with respect to the request for punitive damages, and otherwise DENIED.
Ruling
SWAMP CAPITAL LLC, VS H.O.T.N. HOLDINGS, LLC, ET AL.
Aug 22, 2024 |23STCV12145
Case Number: 23STCV12145 Hearing Date: August 22, 2024 Dept: 71 The Court inquires as to whether the parties are would like to rebrief this matter to address the recent Supreme Court decision in Quach v. California Commerce Club, Inc. (July 25, 2024, No. S275121) ___Cal.5th___ [2024 Cal. LEXIS 3980].
Ruling
ALPINE BLUE VS. HURLEY, ET AL
Aug 22, 2024 |CVCV21-0198057
ALPINE BLUE VS. HURLEY, ET ALCase Number: CVCV21-0198057This matter is on calendar for review regarding status of service and trial setting. This Court has previouslyrecused in this matter. The matter is continued to Monday, September 30, 2024 at 9:00 a.m. in Department 63for review regarding status of service and trial setting. No appearance is necessary on today’s calendar.
Ruling
- USA WASTE OF CALIFORNIA INC vs ALSUMERI, FAHMI
Aug 22, 2024 |CV-23-004103
CV-23-004103 - USA WASTE OF CALIFORNIA INC vs ALSUMERI, FAHMI - Plaintiff's Motion for Terminating Sanctions Against Defendant Fahmi Alsumeri aka Fahmi Abdo Alsumeri an Individual dba Alsumeri Center, Striking his Answer, and Entering Default Against Defendant for Failing to Comply with May 16,2024 Discovery Order – HEARING REQUIRED.Based on the moving papers and the lack of opposition thereto, the Court is inclined to GRANT the motion. Defendant’s conduct in failing to comply with the Court’s 5-16-24 order constitutes misuse of the discovery process (Code Civ. Proc. § 2023.010(d), (g).) Moreover, it appears that the prior sanctions imposed by the Court have not been effective in compelling Defendant to comply with his obligations under the Discovery Act. Under the circ*mstances, therefore, it appears that terminating sanctions are warranted. (Code Civ. Proc. § 2023.030(d).)However, the Court will hear from the parties as to their respective positions on these issues at the time of the hearing.
Ruling
Paladin Holdings vs Culture Cannabis
Aug 26, 2024 |24CV-00233
24CV-00233 Paladin Holdings v. Culture CannabisCase Management ConferenceAppearance required. Remote appearances are permitted. Parties who wish to appearremotely must contact the clerk of the court at (209) 725-4111 to arrange for a remoteappearance. Complaint filed January 12, 2024, and proof of service filed March 13, 2024,yet no response or default taken as of this date. Counsel for Plaintiff indicated at the July29, 2024, Case Management Conference that a settlement was being circulated forsignature to resolve the case. Appear to discuss status of the case.
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