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This case was last updated from Los Angeles County Superior Courts on 12/28/2019 at 01:11:19 (UTC).

RAMESH KHALILI VS LEON T. SMITH, ET AL.

Case Summary

On 06/27/2018 RAMESH KHALILI filed a Personal Injury - Other Personal Injury lawsuit against LEON T SMITH. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******8035

  • Filing Date:

    06/27/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JON R. TAKASUGI

 

Party Details

Plaintiff

KHALILI RAMESH

Defendants

SMITH LEON T.

TOURIN CARLA

METROPOLITAN PROPERTY SERVICES LLC. A CALIFORNIA

SMITH FAMILY TRUST

Attorney/Law Firm Details

Plaintiff Attorney

KERENDIAN RAMIN JOSEPH

Defendant Attorney

HUNTER KEITH GREGORY

 

Court Documents

Notice (name extension) - Notice Separately Bound Evidentiary Exhibits in Support of Motion for Summary Judgment

9/4/2019: Notice (name extension) - Notice Separately Bound Evidentiary Exhibits in Support of Motion for Summary Judgment

Separate Statement - Separate Statement

9/4/2019: Separate Statement - Separate Statement

Motion for Summary Judgment - Motion for Summary Judgment

9/4/2019: Motion for Summary Judgment - Motion for Summary Judgment

Opposition (name extension) - Opposition to Defendants' Motion for Summary Judgment

11/6/2019: Opposition (name extension) - Opposition to Defendants' Motion for Summary Judgment

Objection (name extension) - Objection OF DEFENDANTS LEON T. SMITH, SMITH FAMILY TRUST, METROPOLITAN PROPERT SERVICES, LLC, AND CARLA TOURIN, TO PLAINTIFF RAMESH

11/19/2019: Objection (name extension) - Objection OF DEFENDANTS LEON T. SMITH, SMITH FAMILY TRUST, METROPOLITAN PROPERT SERVICES, LLC, AND CARLA TOURIN, TO PLAINTIFF RAMESH

Notice of Ruling - Notice of Ruling

12/10/2019: Notice of Ruling - Notice of Ruling

Motion to Compel (name extension) - Motion to Compel Defendant Smith Family Trust's Notice of Motion and Motion for Order Compelling Plaintiff Ramesh Khalili's Answers to Form Interrogatories, and for

11/13/2018: Motion to Compel (name extension) - Motion to Compel Defendant Smith Family Trust's Notice of Motion and Motion for Order Compelling Plaintiff Ramesh Khalili's Answers to Form Interrogatories, and for

Motion to Compel (name extension) - Motion to Compel Notice of Motion and Motion to Compel Answers

11/13/2018: Motion to Compel (name extension) - Motion to Compel Notice of Motion and Motion to Compel Answers

Request (name extension) - Request Defendant Smith Family Trust's Request To Take Off is Calendar Motion For Order Defendants. Compelling Plaintiff Ramesh Khalill's Answers To Form Interrogatories, An

12/4/2018: Request (name extension) - Request Defendant Smith Family Trust's Request To Take Off is Calendar Motion For Order Defendants. Compelling Plaintiff Ramesh Khalill's Answers To Form Interrogatories, An

Answer

8/15/2018: Answer

Summons - on Complaint

6/27/2018: Summons - on Complaint

Civil Case Cover Sheet

6/27/2018: Civil Case Cover Sheet

Complaint

6/27/2018: Complaint

Notice of Case Assignment - Limited Civil Case

6/27/2018: Notice of Case Assignment - Limited Civil Case

16 More Documents Available

 

Docket Entries

  • 06/30/2021
  • Hearing06/30/2021 at 10:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 04/21/2020
  • Hearing04/21/2020 at 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 12/11/2019
  • DocketMemorandum of Costs (Summary); Filed by: Leon T. Smith (Defendant); Smith Family Trust (Defendant); Metropolitan Property Services, LLC., A California (Defendant); Carla Tourin (Defendant); As to: Ramesh Khalili (Plaintiff); Total Costs: 4613.60

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  • 12/10/2019
  • DocketNotice of Ruling; Filed by: Leon T. Smith (Defendant); Smith Family Trust (Defendant); Metropolitan Property Services, LLC., A California (Defendant); Carla Tourin (Defendant)

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  • 12/04/2019
  • DocketNon-Jury Trial scheduled for 04/21/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 12/04/2019
  • DocketOn the Court's own motion, Non-Jury Trial scheduled for 12/26/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Advanced and Continued - by Court was rescheduled to 04/21/2020 08:30 AM

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  • 11/21/2019
  • DocketMinute Order (Hearing on Motion for Summary Judgment)

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  • 11/21/2019
  • DocketHearing on Motion for Summary Judgment scheduled for 11/21/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94 updated: Result Date to 11/21/2019; Result Type to Held

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  • 11/19/2019
  • DocketObjection OF DEFENDANTS LEON T. SMITH, SMITH FAMILY TRUST, METROPOLITAN PROPERT SERVICES, LLC, AND CARLA TOURIN, TO PLAINTIFF RAMESH; Filed by: Leon T. Smith (Defendant); Smith Family Trust (Defendant); Metropolitan Property Services, LLC., A California (Defendant); Carla Tourin (Defendant)

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  • 11/14/2019
  • DocketReply Of Defendants to Plaintiff's Opposition; Filed by: Leon T. Smith (Defendant); Smith Family Trust (Defendant); Metropolitan Property Services, LLC., A California (Defendant); Carla Tourin (Defendant)

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25 More Docket Entries
  • 07/02/2018
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by: Clerk; As to: Ramesh Khalili (Plaintiff)

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  • 07/02/2018
  • DocketUpdated -- Request to Waive Court Fees: Result: Granted; Result Date: 07/02/2018

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  • 06/28/2018
  • DocketCase assigned to Hon. Jon R. Takasugi in Department 94 Stanley Mosk Courthouse

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  • 06/28/2018
  • DocketNon-Jury Trial scheduled for 12/26/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 06/28/2018
  • DocketOrder to Show Cause - Failure to File Proof of Service scheduled for 06/30/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 06/27/2018
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 06/27/2018
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 06/27/2018
  • DocketCivil Case Cover Sheet; Filed by: Ramesh Khalili (Plaintiff)

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  • 06/27/2018
  • DocketRequest to Waive Court Fees; Filed by: Ramesh Khalili (Plaintiff)

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  • 06/27/2018
  • DocketComplaint; Filed by: Ramesh Khalili (Plaintiff); As to: Leon T. Smith (Defendant); Smith Family Trust (Defendant); Metropolitan Property Services, LLC., A California (Defendant) et al.

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Tentative Rulings

Case Number: 18STLC08035    Hearing Date: October 19, 2020    Dept: 25

HEARING DATE: Mon., October 19, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Khalili v. Smith, et al. COMPL. FILED: 06-27-18

CASE NUMBER: 18STLC08035 DISC. C/O: 01-24-21

NOTICE: OK DISC. MOT. C/O: 02-08-21

TRIAL DATE: 02-23-21

PROCEEDINGS: MOTION FOR ORDER STRIKING DEFENDANTS’ AMENDED COSTS

MOVING PARTY: Plaintiff Ramesh Khalili

RESP. PARTY: Defendants Leon T. Smith, Leon Family Trust, Metropolitan Property Services, LLC, and Carla Tourin

MOTION TO TAX COSTS

(CRC rule 3.1700)

TENTATIVE RULING:

Plaintiff Ramesh Khalili’s Motion for Order Striking Defendants’ Amended Memorandum of Costs is DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on July 21, 2020 [ ] Late [ ] None

REPLY: None filed as of October 14, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background

On June 27, 2018, Plaintiff Ramesh Khalili (“Plaintiff”) filed an action for failure to provide adequate security against criminal activities against Defendants Leon T. Smith, Smith Family Trust, Metropolitan Property Services, LLC, and Carla Tourin (collectively, “Defendants”). On August 15, 2018, Defendants filed an Answer.

On September 4, 2019, Defendants filed a motion for summary judgment, which came up for hearing on November 21, 2019. Both parties personally appeared at the hearing. (11/21/19 Minute Order.) The Court’s minute order states that after considering the arguments of the parties, both written and oral, the Court decided not to adopt its tentative ruling. (Id.) Instead, the Order states the matter would proceed to trial. (Id.) Notably, the Court did not expressly grant or deny the motion for summary judgment. (See id.)

On December 11, 2019, Defendants filed a memorandum of costs, and on December 31, 2019, Plaintiff filed a motion to tax costs. On January 28, 2020, Defendants filed and served an amended memorandum of costs. On February 19, 2020, Plaintiff filed the instant Motion for Order Striking Defendants’ Amended Costs (the “Motion”), and on July 21, 2020, Defendants filed an Opposition.

At the initial August 4, 2020 hearing, witness Carla Touring (“Touring”) testified for Defendants regarding her recollection of the Court’s ruling at the November 21, 2019 hearing on the motion for summary judgment. (8/4/20 Minute Order.) After argument from both parties’ counsel, the Court continued the matter to allow Defendants’ counsel time to obtain the recording of the hearing for the motion for summary judgment. (Id.) On October 6, 2020, Defendants filed a supplemental brief.

To date, no reply brief has been filed.

  1. Legal Standard

California Rules of Court, rule 3.1700 provides that, “[a] prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, rule 3.1700, subd. (a)(1).) (Emphasis added.) The memorandum of costs must include a verification from either the party or the attorney that the items of cost are correct and were necessarily incurred in the action. (Id.)

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.” (Cal. Rules of Court, rule 3.1700, subd. (b).) If the memorandum of costs is served via mail, the time to file a motion to strike or tax costs is extended by 5 calendar days as provided by Code of Civil Procedure section 1013. (Id.)

  1. Discussion

Plaintiff initially argued that the court had not adopted its tentative ruling granting Defendants’ motion for summary judgment and thus the memorandum of costs was prematurely and untimely filed. (Mot., pp. 1:26-2:7; 4:12-20.) In the alternative, Plaintiff argued that certain costs were excessive or not allowed by law. (Id.) In Opposition, Defendants argued that at the November 21, 2019 hearing, the Court adopted its tentative ruling granting the motion for summary judgment. (Oppo., p. 7:9-10, p. 8:5-12.) They further argued that the Court’s Minute Order indicating otherwise was a clerical error. (Id. at p. 8:20-27.)

In their supplemental papers, Defendants submit a copy of the Court’s November 21, 2019 tentative ruling granting their motion for summary judgment. (10/6/20 Supp. Brief, Exh. A.) They also attach a copy of the Transcript of Proceedings – Hearing on Motion for Summary Judgment that took place on November 21, 2019. (Id. at Exh. B.) The transcript demonstrates that after allowing the parties to be heard, the Court found that Plaintiff was not the real party in interest, and for that reason, the tentative ruling was adopted as the order of the Court. (Id., at Exh. B, p. 3:11-5:6.) Thus, the transcript shows the Court’s November 21, 2019 Minute Order stating the tentative ruling was not adopted is a clerical error. It also demonstrates that Defendants are the prevailing parties as the parties in whose favor summary judgment was granted. Notably, Plaintiff has not filed a reply brief arguing otherwise.

As noted above, Plaintiff’s moving papers argue that the Amended Memorandum of Costs was untimely and does not comply with California Rules of Court, rule 3.1700. (Mot., pp. 4:16-5:11.) Rule 3.1700, subdivision (a) requires a prevailing party who claims costs to serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk. Here, no judgment has been entered. In addition, courts routinely treat prematurely filed costs bills as timely filed. (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 880.)

Rather, it is Plaintiff’s Motion that is untimely. A motion to strike or tax costs must be served and filed 15 days after service of the memorandum of costs, plus 5 calendar days if it was served by mail. (Cal. Rules of Court, rule 3.1700, subd. (b).) Here, Defendants filed and served their Amended Memorandum of Costs by mail on January 28, 2020. Thus, the deadline to file a motion to tax costs was on February 17, 2020. Because this Motion was not filed until February 19, 2020, it is untimely and thus DENIED.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff Ramesh Khalili’s Motion for Order Striking Defendants’ Amended Memorandum of Costs is DENIED.

Moving parties are ordered to give notice.

Case Number: 18STLC08035    Hearing Date: August 04, 2020    Dept: 25

HEARING DATE: Tue., August 4, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Khalili v. Smith, et al. COMPL. FILED: 06-27-18

CASE NUMBER: 18STLC08035 DISC. C/O: 01-24-21

NOTICE: OK DISC. MOT. C/O: 02-08-21

TRIAL DATE: 02-23-21

PROCEEDINGS: MOTION FOR ORDER STRIKING DEFENDANTS’ AMENDED COSTS

MOVING PARTY: Plaintiff Ramesh Khalili

RESP. PARTY: Defendants Leon T. Smith, Leon Family Trust, Metropolitan Property Services, LLC and Carla Tourin

MOTION TO TAX COSTS

(CRC rule 3.1700)

TENTATIVE RULING:

Plaintiff Ramesh Khalili’s Motion is GRANTED. Defendants’ Amended Memorandum of Costs is HEREBY STRICKEN.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on July 21, 2020 [ ] Late [ ] None

REPLY: None filed as of July 31, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background

On June 27, 2018, Plaintiff Ramesh Khalili (“Plaintiff”) filed an action for failure to provide adequate security against criminal activities against Defendants Leon T. Smith, Smith Family Trust, Metropolitan Property Services, LLC, and Carla Tourin (collectively, “Defendants”). On August 15, 2018, Defendants filed an Answer.

On September 4, 2019, Defendants filed a motion for summary judgment, which came up for hearing on November 21, 2019. After considering the arguments of the parties, both written and oral, the Court decided not to adopt its tentative ruling. (11/21/19 Minute Order.) Instead, the Court ordered the matter to proceed to trial. (Id.) Notably, the Court did not expressly grant or deny the motion for summary judgment. (See Id.)

On December 11, 2019, Defendants filed a memorandum of costs, and on December 31, 2019, Plaintiff filed a motion to tax costs. On January 28, 2020, Defendants filed an amended memorandum of costs. On February 19, 2020, Plaintiff filed the instant Motion for Order Striking Defendants’ Amended Costs (the “Motion”), and on July 21, 2020, Defendants filed an Opposition. To date, no reply brief has been filed.

  1. Legal Standard

California Rules of Court, rule 3.1700 provides that, “[a] prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, rule 3.1700, subd. (a)(1).) (Emphasis added.) The memorandum of costs must include a verification from either the party or the attorney that the items of cost are correct and were necessarily incurred in the action. (Id.)

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum.” (Cal. Rules of Court, rule 3.1700, subd. (b).) If the memorandum of costs is served via mail, the time to file a motion to strike or tax costs is extended by 5 calendar days as provided by Code of Civil Procedure section 1013. (Id.)

  1. Discussion

As noted above, Defendants filed a memorandum of costs on December 11, 2019, and an amended memorandum of costs on January 28, 2020.

Plaintiff argues the memorandum of costs was prematurely filed because Defendants did not prevail on their motion for summary judgment, or in the alternative, that the certain costs are excessive or not allowed by law. (Mot., pp. 1:26-2:7; 4:12-20.) In Opposition, Defendants argue that at the November 21, 2019 hearing, the Court adopted its tentative ruling granting the motion for summary judgment. (Oppo., p. 7:9-10, p. 8:5-12.) They further argue that the Court’s Minute Order indicating otherwise is a clerical error. (Id. at p. 8:20-27.)

 

First, the Court notes that Plaintiff’s Motion is untimely as it was filed 22 days after Defendants mailed a copy of the memorandum of costs. However, the Court may extend the times for serving and filing a motion to tax costs for a period not to exceed 30 days. (Cal. Rules of Court, rule 3.1700, subd. (b)(3).) The Court does so here.

After a thorough review of the Court’s record and notes, the Court finds that the November 21, 2019 Minute Order is, indeed, accurate. As noted in the Minute Order, after fully considering both parties’ written and oral arguments, the Court decided not to adopt its tentative ruling granting the motion for summary judgment. (11/21/19 Minute Order.) Instead, the Court decided the matter should proceed to trial, effectively denying Defendants’ motion. (Id.)

Because Defendants’ motion for summary judgment was not granted, Defendants are not prevailing parties in this action and are thus not entitled to an award of costs. Accordingly, Plaintiff’s request to strike Defendants’ memorandum of costs is GRANTED.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff Ramesh Khalili’s Motion is GRANTED. Defendants’ Amended Memorandum of Costs is HEREBY STRICKEN.

Moving party is ordered to give notice.

Case Number: 18STLC08035    Hearing Date: November 21, 2019    Dept: 94

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING:

Defendants Leon T. Smith, Smith Family Trust, Metropolitan Property Services, LLC and Carla Tourin’s Motion for Summary Judgment is GRANTED.

SUMMARY OF COMPLAINT: Action for failure to provide adequate security against criminal activities.

REQUEST FOR RELIEF: Grant Defendants summary judgment on the grounds that Plaintiff lacks standing to bring this action and Defendants cannot be liable for the criminal acts of third parties.

OPPOSITION: The declaration of Defendant’s expert is insufficient to carry their burden on summary judgment. Plaintiff is the real party in interest and Defendants owed her a duty to safeguard her property.

REPLY: Reiterates moving arguments.

ANALYSIS:

On June 27, 2018, Plaintiff Ramesh Khalili (“Plaintiff”) filed the instant action for failure to provide adequate security against criminal activity against Defendants Leon T. Smith, Smith Family Trust, Metropolitan Property Services, LLC and Carla Tourin (“Defendants”). Defendants filed the instant Motion for Summary Judgment on September 4, 2019. Plaintiff filed her opposition on November 6, 2019 and Defendants replied on November 14, 2019.

Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

Discussion

The Complaint alleges that Defendants are the owners of the real property located at 417 South Arnaz Drive, Apartment 306, Los Angeles, California (“the subject property”) at which Plaintiff was a paying tenant. (Compl., ¶¶5, 8, 10.) It further alleges that Defendants had a duty to keep the tenants of the subject property and their property safe from criminal activity. (Id. at ¶11.) Defendants allegedly failed in this duty such that on March 29, 2018, tenants’ mailboxes were burglarized. (Id. at ¶14.) Plaintiff allegedly suffered the loss of valuable immigration documents and is at risk for identify theft as a result. (Id. at ¶15.)

Defendants bring the instant motion for summary judgment on the following grounds: (1) Plaintiff is not the real party in interest because she did not own the documents stolen from her mailbox; (2) a landlord and landlord’s agents owe no duty to safeguard tenants’ property from criminal activity by third parties; (3) Plaintiff’s discovery responses are factually devoid; (4) Plaintiff waived her right to sue Defendants as party of her tenancy; and (5) Plaintiff cannot recover for emotional distress arising solely out of property damage.

Plaintiff as Real Party in Interest

“Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” (Code Civ. Proc., § 367.) Defendants present evidence that the property allegedly stolen from Plaintiff’s mailbox, and which is the subject of this action, did not belong to Plaintiff. Specifically, the property allegedly stolen from Plaintiff’s mailbox was “[t]wo stolen United States of America immigration green cards”, belonging to Plaintiff’s “immediate family/applicants brother in law [sic], Moe Sabety and nephew, Ashkon Sabety who are Canadian citizens.” (Motion, Separate Statement of Facts No. 29; Exh. D, p. 4:3-5.) Plaintiff also allegedly suffered lost earnings when she missed work to investigate the theft on behalf of her family, and the costs of applicants having to refile applications (including application fees, airfare for travel for interviews, fingerprinting, and medical exams). (Motion, Separate Statement of Facts Nos. 30-31; Exh. D, pp. 4:9-22.) Defendants present evidence that at the time of the theft, neither Moe Sabety or Ashkon Sabety were living at the subject property. Instead, they lived in Beverly Hills. (Motion, Separate Statement of Facts No. 10; Exhs. F-G.) Finally, Plaintiff allegedly suffered emotional distress. (Motion, Separate Statement of Facts No. 10; Exh. D, p. 3:7-8.)

Defendants’ evidence carries their initial burden of proof. As Plaintiff was not the owner of the property that was stolen, she is not the real party in interest here. (Jasmine Networks, Inc. v. Superior Court (2009) 180 Cal.App.4th 980, 993 (holding “[i]t is the owner at the time of the injury who will ordinarily suffer the loss of value or cost of replacement or repair, and who will thus need the compensatory remedy that the law offers.” Plaintiff’s interest in the property stolen was that it belonged to her family members. Regardless of whether Plaintiff took on the costs associated with the loss of value or replacement or repair of the immigration documents herself, the law only considers the cost as to the person whose property was stolen. In this case, the damages are to Plaintiff’s brother-in-law and nephew. Nor are emotional distress damages recoverable with respect to the loss of personal property due to negligence. (Ragland v. US Bank National Assn. (2012) 209 Cal.App.4th 182, 205.)

Plaintiff’s opposition fails to present evidence creating a triable issue of material facts. She does not dispute that her brother-in-law or nephew were not residents of the subject property at the time of the theft. (Opp., Separate Statement of Facts No. 11.) She also offers no authority regarding emotional distress damages, and implicitly acknowledges that such damages cannot be recovered by arguing intentional infliction of emotional distress in her opposition. (Opp., pp. 7:20-8:11.) No such cause of action, however, is alleged in the Complaint nor does the Court find the facts support such a claim.

Landlord Duty to Safeguard Tenants’ Property

Defendants cite to Royal Neckwear Co. v. Century City, Inc. (1988) 205 Cal.App.3d 1146, 1151 in support of their contention that landlords do not owe tenants a duty of care with respect to personal property. (Royal Neckwear Co. v. Century City, Inc. (1988) 205 Cal.App.3d 1146.) Although the case involved the theft of property from a commercial property (a shopping mall), the Court of Appeals reasoning is applicable here. The Royal Neckwear court explained that

We cannot find such a duty exists because it is the tenant that is in the best position to take steps to protect the safety of its own property; there is no moral blame to be ascribed to a failure to prevent another's property from being stolen; it would place an onerous financial burden on a landlord - which eventually would be passed on to all of its tenants - to hold it responsible for the loss of its tenants' property; and a tenant can easily obtain insurance to cover any such loss.

(Id. at 1153.) The same is true here in that it was not the landlord who was in the best position to prevent Plaintiff’s property from being stolen. Plaintiff alleges that the theft was executed by use of a master key. (Compl., ¶¶14, 17.) The master key is used by mail carriers to access a bank of mailboxes. (Motion, Separate Statement Fact No. 19; Exh. K.) These master keys are manufactured by the U.S. Postal Service in Washington and are distributed through controlled channels. (United States v. Ewain (1995) 88 F. 3d 689, 691.) The master keys are checked out by the mail carriers at the start of their delivery and returned at the end. (Ibid.) The U.S. Postal Service expressly states that it is responsible for protecting postal employees and the mails and apologized to Plaintiff for its failure to “live up to our commitment of safe and reliable mail service.” (Motion, Separate Statement Fact Nos. 35-36; Exhs. R, S.) Defendants, therefore, have carried their initial burden of proof. Plaintiff’s opposition does not dispute these material facts or point to any authority finding a duty of care by a landlord for tenants’ personal property. (Opp., Separate Statement Fact Nos. 19, 35, 36.)

The motion for summary judgment, therefore, is also granted because Defendants did not owe Plaintiff a duty of care with respect to the theft of personal property from the subject property.

Factually Void Discovery Responses

Factually devoid discovery responses by the plaintiff are sufficient, on a motion for summary judgment, to shift the burden of proof to the plaintiff to demonstrate the existence of evidence in support of her claims. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 580-581.) Here, Defendants present evidence that in response to the interrogatory seeking “all facts supporting the cause of action for negligence,” Plaintiff merely reiterated the allegations in the Complaint. (Motion, Separate Statement Fact Nos. 52; Exh. D. p. 5:24-30.) This response failed to set forth specific facts regarding the basis of Defendants’ duty of care or breach. Defendants carried their burden of proof, and Plaintiff’s opposition offers no facts in response. (Opp., Separate Statement Fact Nos. 46-52.) Indeed, the only authority on which Plaintiff relies is a case expressly overruled the 1992 and 1993 amendments to the summary judgment statute Code of Civil Procedure section 437c. (Union Bank, supra, 31 Cal.App.4th ad passem (setting forth the overruling of Barnes v. Blue Haven Pools (1969) 1 Cal.App.3d 123).)

Waiver of Right to Sue

Finally, Defendants present evidence that Plaintiff waived her right to sue for theft of property by executing the “Obligations of a Resident, Rules and Regulations” form on May 22, 2004. (Motion, Separate Statement Fact No. 6; Exh. E.) Paragraph 2 of that document expressly states that “Management is not responsible for fire damage or theft of personal property including jewelry,

money, apparel or other items in said premises, including storage areas, carports, and garages.” (Motion, Separate Statement Fact No. 6; Exh. F.) As the intentional relinquishment of this right, Defendants have demonstrated Plaintiff’s waiver of the right to sue. In opposition, Plaintiff offers no opposing facts. (Opp., Separate Statement Fact Nos. 6-7.)

Conclusion

Based on the foregoing, Defendants’ Motion for Summary Judgment is GRANTED.

Moving party to file proposed order and judgment within ten (10) days, and to give notice.

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