On 06/27/2018 RAMESH KHALILI filed an Other 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.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
JON R. TAKASUGI
SMITH LEON T.
METROPOLITAN PROPERTY SERVICES LLC. A CALIFORNIA
SMITH FAMILY TRUST
KERENDIAN RAMIN JOSEPH
HUNTER KEITH GREGORY
9/4/2019: Notice (name extension) - Notice Separately Bound Evidentiary Exhibits in Support of Motion for Summary Judgment
9/4/2019: Separate Statement - Separate Statement
9/4/2019: Motion for Summary Judgment - Motion for Summary Judgment
11/6/2019: Opposition (name extension) - Opposition to Defendants' Motion for Summary Judgment
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
12/10/2019: Notice of Ruling - Notice of Ruling
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
11/13/2018: Motion to Compel (name extension) - Motion to Compel Notice of Motion and Motion to Compel Answers
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
6/27/2018: Summons - on Complaint
6/27/2018: Civil Case Cover Sheet
6/27/2018: Notice of Case Assignment - Limited Civil Case
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 ServiceRead MoreRead Less
Hearing04/21/2020 at 08:30 AM in Department 94 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury TrialRead MoreRead Less
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: 4613.60Read MoreRead Less
DocketNotice of Ruling; Filed by: Leon T. Smith (Defendant); Smith Family Trust (Defendant); Metropolitan Property Services, LLC., A California (Defendant); Carla Tourin (Defendant)Read MoreRead Less
DocketNon-Jury Trial scheduled for 04/21/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
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 AMRead MoreRead Less
DocketMinute Order (Hearing on Motion for Summary Judgment)Read MoreRead Less
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 HeldRead MoreRead Less
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)Read MoreRead Less
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)Read MoreRead Less
DocketOrder on Court Fee Waiver (Superior Court); Filed by: Clerk; As to: Ramesh Khalili (Plaintiff)Read MoreRead Less
DocketUpdated -- Request to Waive Court Fees: Result: Granted; Result Date: 07/02/2018Read MoreRead Less
DocketCase assigned to Hon. Jon R. Takasugi in Department 94 Stanley Mosk CourthouseRead MoreRead Less
DocketNon-Jury Trial scheduled for 12/26/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
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 94Read MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketSummons on Complaint; Issued and Filed by: ClerkRead MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Ramesh Khalili (Plaintiff)Read MoreRead Less
DocketRequest to Waive Court Fees; Filed by: Ramesh Khalili (Plaintiff)Read MoreRead Less
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.Read MoreRead Less
Case Number: 18STLC08035 Hearing Date: November 21, 2019 Dept: 94
MOTION FOR SUMMARY JUDGMENT
(CCP § 437c)
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.
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.
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).)
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.)
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.