This case was last updated from Los Angeles County Superior Courts on 11/05/2021 at 14:17:51 (UTC).

A C A LLC VS MYRON JEPPSON HOLMSTROM

Case Summary

On 12/15/2016 A C A LLC filed a Property - Other Real Property lawsuit against MYRON JEPPSON HOLMSTROM. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MONICA BACHNER, THERESA M. TRABER, KEVIN C. BRAZILE and RANDOLPH M. HAMMOCK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3861

  • Filing Date:

    12/15/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MONICA BACHNER

THERESA M. TRABER

KEVIN C. BRAZILE

RANDOLPH M. HAMMOCK

 

Party Details

Plaintiff, Cross Defendant and Petitioner

A.C.A LLC

Defendants and Respondents

DOES 1 THROUGH 200

HOLMSTROM MYRON JEPPSON

JOAQUIN CALDERA - DOE 1

SHEN DOE 103 JIA

LI DOE 104 YUN YING

GVO MIAN

JANCHUNG OZU - DOE 119

ALI ZARRIBHALA DOE - 111

WISNER TRISTAN

ZHOU DOE 105 MIN

ALI RAZFAR - DOE 114

DANIEL SACILOTTO - DOE 120

YISDRIM AHMET SIMSEK - DOE 106

LILY SABAN - DOE 117

Cross Plaintiffs

PAOLA CALDERA - DOE 101

MIN ZHOU - DOE 105

JIA SHEN - DOE 103

Not Classified By Court

SHEPHERD KYLIE

TEST PARTY FOR TRUST CONVERSION

47 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

HAGEMANN MICHAEL K.

Defendant and Cross Plaintiff Attorneys

CHANDRA SEAN SURESH

QUINTANA ANDRES FELIPE

RILEY DENNIS PATRICK

RILEY DENNIS PATRICK ESQ.

Cross Defendant Attorneys

BRACHMAN MITCHELL

MONADJEMI YOUSEF

QUINTANA ANDRES FELIPE ESQ.

 

Court Documents

Notice and Acknowledgment of Receipt

6/27/2017: Notice and Acknowledgment of Receipt

Legacy Document - LEGACY DOCUMENT TYPE: MISCELLANEOUS-OTHER

2/21/2018: Legacy Document - LEGACY DOCUMENT TYPE: MISCELLANEOUS-OTHER

Ex Parte Application - PLAINTIFF'S EX PARTE APPLICATION TO VACATE A PORTION OF THE COURT'S JANUARY 31, 2018 ORDER DUE TO DEFENDANTS' KNOWINGLY INACCURATE SEPARATE STATEMENT

2/21/2018: Ex Parte Application - PLAINTIFF'S EX PARTE APPLICATION TO VACATE A PORTION OF THE COURT'S JANUARY 31, 2018 ORDER DUE TO DEFENDANTS' KNOWINGLY INACCURATE SEPARATE STATEMENT

Legacy Document - LEGACY DOCUMENT TYPE: OPPOSITION DOCUMENT

6/5/2018: Legacy Document - LEGACY DOCUMENT TYPE: OPPOSITION DOCUMENT

Legacy Document - LEGACY DOCUMENT TYPE: EX-PARTE APPLICATION

6/5/2018: Legacy Document - LEGACY DOCUMENT TYPE: EX-PARTE APPLICATION

Proof of Service by Mail

11/13/2019: Proof of Service by Mail

Proof of Service by Substituted Service

11/13/2019: Proof of Service by Substituted Service

Proof of Personal Service

11/13/2019: Proof of Personal Service

Declaration re: Due Diligence

11/26/2019: Declaration re: Due Diligence

Proof of Service by Substituted Service

11/26/2019: Proof of Service by Substituted Service

Proof of Service by Mail

11/26/2019: Proof of Service by Mail

Declaration re: Due Diligence

11/27/2019: Declaration re: Due Diligence

Proof of Service by Substituted Service

11/27/2019: Proof of Service by Substituted Service

Proof of Service by Mail

11/27/2019: Proof of Service by Mail

Proof of Service by Mail

12/2/2019: Proof of Service by Mail

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE LIFTING STAY)

12/5/2019: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE LIFTING STAY)

Appeal - Remittitur - Affirmed - APPEAL - REMITTITUR - AFFIRMED B291651

1/24/2020: Appeal - Remittitur - Affirmed - APPEAL - REMITTITUR - AFFIRMED B291651

Notice - NOTICE OF RE-SETTING HEARING ON DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION OF THE 1ST, 2ND, 3RD, 4TH, 5TH, 9TH, 11TH, AND 12TH CAUSES OF ACTION

1/27/2020: Notice - NOTICE OF RE-SETTING HEARING ON DEFENDANTS NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION OF THE 1ST, 2ND, 3RD, 4TH, 5TH, 9TH, 11TH, AND 12TH CAUSES OF ACTION

501 More Documents Available

 

Docket Entries

  • 05/31/2022
  • Hearing05/31/2022 at 10:00 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 05/20/2022
  • Hearing05/20/2022 at 09:00 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 04/06/2022
  • Hearing04/06/2022 at 09:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 03/25/2022
  • Hearing03/25/2022 at 09:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Sanctions

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  • 01/06/2022
  • Hearing01/06/2022 at 08:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 11/10/2021
  • Hearing11/10/2021 at 09:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing - Other Regarding Why a Discovery Referee Should not be Appointed

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  • 11/10/2021
  • Hearing11/10/2021 at 09:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Responses to Request for Production of Documents, Set 3

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  • 11/10/2021
  • Hearing11/10/2021 at 09:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 11/10/2021
  • Hearing11/10/2021 at 09:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 10/29/2021
  • DocketAnswer; Filed by Paola Caldera (Defendant); Mian Guo (Defendant); Jia Shen (Defendant) et al.

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884 More Docket Entries
  • 01/01/2017
  • Docketat 00:00 AM in Department 47; Unknown Event Type

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  • 12/21/2016
  • DocketNOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

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  • 12/21/2016
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 12/21/2016
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 12/19/2016
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 12/19/2016
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 12/15/2016
  • DocketCOMPLAINT FOR DECLARATORY RELIEF, RESCISSION, EJECIMENT, FRAUD, DAMAGES, AND RESTITUTION JURY TRIAL DEMANDED

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  • 12/15/2016
  • DocketSUMMONS

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  • 12/15/2016
  • DocketComplaint; Filed by null

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  • 01/31/2016
  • DocketStipulation and Order to use Certified Shorthand Reporter; Filed by Court

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Tentative Rulings

b'

Case Number: BC643861 Hearing Date: September 27, 2021 Dept: 71

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Superior Court of California

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County of Los Angeles

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DEPARTMENT 71

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TENTATIVE RULING

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A.C.A.\r\n LLC,

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vs.

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MYRON\r\n JEPPSON HOLSTROM, et al.

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Case No.: BC643861

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Hearing\r\n Date: September 27, 2021

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Defendants’ motion to strike is granted.

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DOE\r\nDefendants Paola Caldera (“P. Caldera”), Mian Guo erroneously sued as\r\nMian Gvo (“Guo”), Jia Shen (“Shen”), Yunying Li erroneously sued as Yun\r\nYing Li (“Li”), Min Zhou (“Zhou”), Yavuz Ertas (“Ertas”), Nima Razfar (“Nima”),\r\nAli Razfar (“Ali”), Jessica Caldera (“J. Caldera”), Nadia Saban (“Nadia”), Lebiba\r\nSaban erroneously sued as Lily Saban (“Lebiba”), Paul Luigi (“Luigi”), Ganchimeg\r\nOyunchimeg erroneously sued as JanChung Ozu (“Oyunchimeg”), Daniel\r\nSacilotto (“Sacilotto”), and Arnaud Larousse erroneously sued as Arnald\r\nLaRousse (“Larousse”) (collectively, “Defendants” or DOE “Defendants 112-121”)\r\nmove to strike the verification of the Second Amended Complaint (“SAC”) filed\r\nby Plaintiff A.C.A. LLC (“Plaintiff”).

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On December 10, 2020, in ruling on\r\nPlaintiff’s November 16, 2020 motion for leave to file a verified FAC,\r\nthe Court granted the motion in part, permitting Plaintiff to amend certain\r\ncauses of action, and at the hearing on the motion, the Court made clear the\r\nfiling of the FAC would be contingent on Plaintiff withdrawing its verification\r\ndue to conflicting factual allegations and Plaintiff’s intent on pleading in\r\nthe alternative. (Decl. of Riley ¶¶7-8,\r\nExhs. 1-2.) On January 7, 2021,\r\nPlaintiff filed its unverified FAC. Defendants demurred only to the 1st\r\n(declaratory relief), 6th (declaratory relief), 7th\r\n(breach of contract), and 8th (declaratory relief) causes of action\r\nin the FAC; Defendants did not demur to the 2nd (ejectment),\r\n3rd (trespass), 4th (breach of fiduciary duty), or 5th\r\n(intentional interference with contractual relations) causes of action. On May\r\n13, 2021, the Court overruled Defendants’ demurrer as to the 1st and\r\n6th causes of action, sustained the demurrer with leave to amend as\r\nto the 7th cause of action, and sustained the demurrer without\r\nleave to amend as to the 8th cause of action. On May 20, 2021, Yousef Monadjemi\r\n(“Monadjemi”) substituted into the case as Plaintiff’s new counsel. On June 2, 2021, Plaintiff filed a verified\r\nSAC.

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C.C.P. §436 provides that the Court may,\r\nupon a motion made pursuant to C.C.P. §435, or at any time within its\r\ndiscretion and upon terms it deems proper, “strike out any irrelevant, false,\r\nor improper matter inserted in any pleading” and/or “strike out all or part of\r\nany pleading not drawn or filed in conformity with the laws of this state, a\r\ncourt rule, or an order of the court.”

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“It is the rule that when a trial court\r\nsustains a demurrer with leave to amend, the scope of the grant of leave is\r\nordinarily a limited one. It gives the pleader an opportunity to cure the\r\ndefects in the particular causes of action to which the demurrer was sustained,\r\nbut that is all.” (Community Water Coalition v. Santa Cruz County Local\r\nAgency Formation Com. (2011) 200 Cal.App.4th 1317, 1329.)

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Defendants move to strike the\r\nverification on the following grounds: (1) the SAC includes a verification in\r\nviolation of the Court’s prior order granting Plaintiff permission to file a\r\nfirst amended complaint (“FAC”) contingent upon withdrawal of the verification\r\ndue to pleading inconsistent facts; (2) the SAC pleads inconsistent factual\r\nallegations; and (3) Plaintiff only seeks to file a verified SAC to force\r\nDefendants to file verified answers to allegations of conflicting facts.

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Defendants are\r\nentitled to an order striking the verification from the SAC. The inclusion of the verification exceeds the\r\nscope of amendment permitted by the Court in sustaining the demurrer to the 7th\r\n(breach of contract – in the alternative) cause of action of the FAC, which was\r\nsustained with leave to amend for the purposes of allowing Plaintiff the\r\nopportunity to allege the elements of the breach of contract cause of\r\naction. Notably, the 7th\r\ncause of action is alleged in the alternative, in the event the Court\r\nfinds valid tenancies did exist. \r\nHowever, the SAC still contains causes of action based on conflicting\r\nallegations, that valid tenancies did not exist due to Rita Seifer’s lack of\r\ncapacity to contract and/or Myron Holmstrom’s lack of authorization to\r\nrent. (See SAC ¶¶36, 53, 254-255\r\n[Declaratory Relief COA based on Seifer’s lack of capacity to form valid\r\ntenancy].) As such, the Court’s previous\r\ncondition of filing the FAC without a verification applies to the\r\ninstant pleading. Plaintiff’s assertion\r\nthat the Court’s prior order does not apply because the minute order granting\r\nPlaintiff leave to file its FAC does not state the FAC is to be filed without\r\nverification fails to acknowledge that Court’s on the record instruction and\r\nthe fact Plaintiff ultimately filed the FAC without a verification pursuant to\r\nthat instruction.

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Based on the\r\nforegoing, Defendants’ motion to strike the verification is granted.

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Dated: September _____, 2021

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Hon. Monica Bachner

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Judge of the Superior Court

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Case Number: BC643861    Hearing Date: May 13, 2021    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

A.C.A. LLC,

vs.

MYRON JEPPSON HOLSTROM, et al.

Case No.: BC643861

Hearing Date: May 7, 2021

Defendants’ demurrer to the first amended complaint is overruled as to the 1st and 6th causes of action. The demurrer is sustained with leave to amend as to the 7th cause of action and without leave to amend as to the 8th cause of action.

Defendants’ motion to strike is moot as to ¶¶271 and 273(a)-(k) and the Prayer ¶¶7 and 8. The motion to strike is granted as to ¶¶91, 116, 132, 167, 187, 250 without leave to amend, and as to allegations of and references to conspiracy with leave to amend (¶¶49, 52, 55, 65, 67,68, 90, 109, 131, 188, 196, 221, 226, 237, 245, 255). The motion to strike is denied as to allegations that purportedly conflict with the Assignment (¶¶50, 56, 59, 61, 84, 85, 90, 107, 108, 109, 121, 131, 178, 188, 196, 203, 211, 221, 227, 230, 237, 245, 260, 53, 85, 151, 212, 213, 36, 87, 247, 249, 53, 68, 141, 148, 151, 173, 175, 220, 244, 269(g), 3-17, 92, 111), allegations concerning Melichar, Seifer’s background, and Defendants’ personal information (¶¶32-46, 20- 22, 25, 194, 91, 111, 112, 116, 117, 145, 147, 149, 150, 151, 155, 171), allegations including references to elder abuse (¶¶32-46, 52, 53, 87 and 269(d)), allegations concerning deposition testimony and declarations (¶¶50, 69, 70, 71, 75-78, 92-103, 107, 110, 114, 117-119, 121, 123, 133- 136, 146, 154, 193, 211), and the prayer for punitive damages.

A. Demurrer

Defendants Paola Caldera (“P. Caldera”), Mian Guo erroneously sued as Mian Gvo (“Guo”), Jia Shen (“Shen”), Yunying Li erroneously sued as Yun Ying Li (“Li”), Min Zhou (“Zhou”), Yavuz Ertas (“Ertas”), Nima Razfar (“Nima”), Ali Razfar (“Ali”), Jessica Caldera (“J. Caldera”), Nadia Saban (“Nadia”), Lebiba Saban erroneously sued as Lily Saban (“Lebiba”), Paul Luigi (“Luigi”), Ganchimeg Oyunchimeg erroneously sued as JanChungOzu (“Oyunchimeg”), Daniel Sacilotto (“Sacilotto”), and Arnaud Larousse erroneously sued as Arnald LaRousse (“Larousse”) (collectively, “Defendants”) demur to the 1st (declaratory relief), 6th (declaratory relief), 7th (breach of contract), and 8th (declaratory relief) causes of action in the first amended complaint (“FAC”) of Plaintiff A.C.A. LLC (“Plaintiff”). Defendants argue the causes of action are uncertain, Plaintiff failed to allege sufficient facts to constitute the causes of action, and/or certain causes of action fail as to Caldera, Guo, Shen, Li, and Zhou (collectively, “DOES 101-105”) because the Court granted summary adjudication in their favor. (Notice of Demurrer, pgs. 1-4; C.C.P. §§430.10(e), 430.10(f).) The Court notes moving Defendants are comprised of DOE Defendants 101-105 and 112-121. Defendants do not demur to the 4th (breach of fiduciary duty) cause of action and DOE Defendants 112-121 do not demur to Plaintiff’s 2nd (ejectment), 3rd (trespass), or 5th (intentional interference with contractual relations) causes of action.

Defendants’ 2/10/21 request for judicial notice is denied as to the documents in the instant case file, for which there is no need to take judicial notice because the Court can always review the file for the case at hand. This includes Defendants’ request the Court take judicial notice of: (1) the 8/24/20 Declarations of Damian A. Akhavi, Andres Quintana, and Michael Hagemann in support of Plaintiff’s opposition to the MSA; (2) the 12/15/16 Complaint; and (3) the 9/11/20 Ruling on the MSA. (D-RJN, Exhs. 1, 2, 3.) Moreover, while the Court may review the documents for the case at hand, it would not take judicial notice of the truth of the matters asserted within the documents.

Plaintiff’s 3/10/21 request the Court deny the request for judicial notice of the exhibit is moot. (Opposition, pg. 6.)

Procedural Background

On December 15, 2016, Plaintiff filed its complaint against Defendant Myron Jeppson Holmstrom (“Holmstrom”) and DOES 1-200, alleging causes of action for (1) declaratory relief, (2) rescission and restitution, (3) ejectment, (4) trespass, (5) breach of fiduciary duty, (6) false promise, (7) concealment, (8) intentional misrepresentation, (9) intentional interference with contractual relations, (10) breach of contract, (11) professional negligence, and (12) Business and Profession Code §17200, in which the 4th, 5th, 6th, 7th, 8th, and 12th causes of action were asserted against all Defendants, the 1st, 2nd, and 3rd causes of action were asserted against all Defendants except DOES 1-100, the 10th cause of action was asserted only against Holmstrom, and the 9th cause of action was asserted against all Defendants except Holmstrom. Plaintiff thereafter filed numerous DOE Amendments to the complaint, as well as requests for dismissals of certain causes of action against Holmstrom and certain DOE Defendants. Plaintiff’s complaint is based on allegations that Rita Seifer (“Seifer”), who owned certain real property buildings which share a border and are located at 540 Glenrock Avenue (“Glenrock Property”) and 543 Landfair Avenue (“Landfair Property”) (collectively “Buildings”) prior to Plaintiff’s purchase of them, assigned her claims against Holmstrom (the property manager) and his alleged co-conspirators (the tenants of the Buildings, demurring Defendants) to Plaintiff in an assignment dated December 12, 2016 (“Assignment”), and that Holmstrom allegedly engaged in a scheme whereby he would charge tenants less than market rent, retain half of the rent, and send the remainder to Seifer as landlord. The named defendants are tenants of the Buildings, and Plaintiff alleges they are trespassers who never validly formed a lease with either Plaintiff or Seifer, and instead conspired with Holmstrom and defraud Seifer to split the gains. (Opposition, pgs. 2-3; FAC ¶65.)

On April 19, 2018, DOES 101-105 filed a cross-complaint against Plaintiff and Cross-Defendant Damian Akhavi (“Akhavi”) (collectively, “Cross-Defendants”) alleging causes of action for (1) intentional influence to vacate, (2) retaliatory eviction, and (3) violation of civil code §789.3. On April 20, 2018, DOES 101-105 filed a first amended cross-complaint (“FACC”) adding a fourth cause of action for violation of Los Angeles Municipal Code §§151.04(a), 151.05(C), and 151.06. On August 9, 2018, J. Caldera, Ertas, Larousse, Luigi, Lebiba, Nadia, Ali, and Nima (collectively, “DOES 112-118, 121”) filed a complaint against Cross-Defendants in a separate action, Case No. BC717036, alleging the same four causes of action as in the FACC. On February 11, 2020, the Court ordered the instant action and BC717036 consolidated. On March 27, 2020, DOES 101-105 filed a second amended cross-complaint (“SACC”) alleging the same four causes of action against Cross-Defendants. On September 14, 2020, the Court granted Oyunchimeg’s ex parte application for leave to file a third amended cross-complaint (“TACC”) to include DOE Defendant names inadvertently omitted from the SACC. The TACC was thereafter filed on September 15, 2020.

On September 11, 2020, the Court granted the motion for summary adjudication brought by DOES 101-105 as to Issues Nos. 2-7 and denied the motion as to Issues Nos. 1 and 8. Accordingly, the Court granted summary adjudication as to the original complaint’s 1st, 3rd, 4th, 9th, 11th, and 12th causes of action against DOES 101-105, while the 2nd and 5th causes of action remained in the operative pleading. On December 10, 2020, the Court granted Plaintiff’s motion for leave to file an amended verified complaint in part. Specifically, the Court granted Plaintiff leave to amend the 1st (declaratory relief), 4th (trespass), 5th (breach of fiduciary duty), 6th (false promise), 11th (professional negligence), and 12th (Section 17200) causes of action and denied leave to amend as to the 2nd (recission and restitution), 3rd (ejectment), 7th (concealment), 8th (intentional misrepresentation), 9th (intentional interference with contractual relations), and 10th (breach of contract) causes of action. The Court notes the motion for leave to amend the complaint indicated the 1st (declaratory relief) cause of action to would be asserted against all Defendants, except DOES 1-100, and in granting Plaintiff leave to amend, the Court did not preclude Plaintiff from amending the cause of action as to DOES 101-105, notwithstanding Defendants’ argument in opposition that the Court had adjudicated the 1st cause of action as to DOES 101-105. (See 11/25/20 Opposition, pgs. 10-11; 12/10/20 Minute Order.)

On January 7, 2021, Plaintiff filed its FAC alleging the following causes of action: (1) declaratory relief [as to all Defendants except DOES 1-100]; (2) ejectment [as to all Defendants except DOES 101-105], (3) trespass [as to all Defendants except DOES 101-105], (4) breach of fiduciary duty [as to all Defendants], (5) intentional interference with contractual relations [as to all Defendants except DOES 101-105], (6) declaratory relief (in the alternative) [as to all Defendants], (7) breach of contract (in the alternative) [as to all Defendants], and (8) declaratory relief (in the alternative) [as to all Defendants].

Declaratory Relief (1st COA)

A cause of action for declaratory relief requires the following elements: (1) person interested under a written instrument or a contract; or (2) a declaration of his or her rights or duties (a) with respect to another or (b) in respect to, in, over or upon property; and (3) an actual controversy. (C.C.P. §1060.)

Plaintiff’s declaratory relief cause of action is based on allegations that, on account of a lack of the formation of a valid tenancy, plus a lack of contract formation given Seifer’s lack of capacity to appoint an agent (Holmstrom) and contract with Defendants/tenants, the Court should declare DOES 101-200 do not have a lawful right to possess or occupy the Buildings. (FAC ¶247, Civil Code §2306.) Plaintiff alleged the purported leases were entered into outside the scope of Holmstrom’s agency and thus he had no authority to enter the leases or grant permission for Defendants/tenants to enter the Buildings. (FAC ¶53.) Plaintiff alleges this lack of authority was known by all Defendants. (FAC ¶53.) Plaintiff alleged in May 2016 most of the purported “tenants” (Defendants) supplied tenant estoppel certificates for prospective purchasers that were signed by “tenants” and Holmstrom and the rents listed in the certificates were only the non-cash portion of the rent despite the fact the “tenants” paid approximately double that amount, about half to Seifer and half to Holmstrom. (FAC ¶56.) Plaintiff also alleged Defendants knew or should have known the fair market value of their rental units was over double the amount they were paying. (FAC ¶¶83, 105, 127, 139, 201, 215, 229, 239.)

Civil Code §2306 provides as follows: “An agent can never have authority, either actual or ostensible, to do an act which is, and is known or suspected by the person with whom he deals, to be a fraud upon the principal.”

Defendants argue Plaintiff cannot allege the existence a controversy given the Assignment’s express language establishes Seifer affirmed Defendants’ tenancies, attested to the accuracy of the tenant estoppels, and acknowledged awareness of rents being paid by each of the tenants, and accordingly contradicts the assertions for which Plaintiff seeks declaratory relief. (Demurrer, pg. 13; FAC ¶65, RJN, Exh. 1, Exh F.) Namely, given Seifer’s affirmation of the tenancies in the Assignment, Plaintiff cannot allege Defendants have no lawful right to possess or occupy the Buildings. However, the Court has not taken judicial notice of the truth of the matters asserted in the Assignment, in which Seifer assigned agreed to assign her claims to Plaintiff and represented and warranted that, “all terms listed in the tenant estoppel certificates provided by [Seifer] for each and every unit, whether signed by the tenant or not, [were] accurate and contain[ed] all the material terms of the respective tenancies… [s]pecifically, pursuant to the original agreement, [Seifer] represent[ed] and warrant[ed] that no lease or other interest in the property is for a term longer than one year.” Moreover, given the Assignment does not include the estoppel certificates referenced therein, the terms of the tenancies Seifer purportedly affirmed in the Assignment are not presently before the Court and even if they were, the Court would not take judicial notice of the truth of the matters asserted therein. As such, Defendants’ argument relies on facts that are beyond the scope of the allegations of the FAC and not subject to judicial notice. In addition, the Assignment also provides that Plaintiff shall have the right to challenge leases entered into at materially below-market rates that appear to benefit either management and/or the tenants at Seifer’s expense. (RJN, Exh. 1.)

Defendants also argue that because Seifer affirmed the tenancies through the Assignment after learning of the rent anomalies and confronting Holmstrom in July 2015, termination of the tenancies pursuant to Civil Code §2306 was waived. (Demurrer, pgs. 14-15.) Specifically, Defendants argue that because Seifer executed the Assignment affirming the tenancies notwithstanding her awareness of the below-market rents in 2016, and corresponding likelihood of Holmstrom’s responsibility, the tenancies cannot be rescinded. However, this argument also relies on the Court taking judicial notice of the truth of the matters asserted in the Assignment and estoppel certificates, which are beyond the scope of the pleadings. The face of the pleadings does not demonstrate Seifer intentionally waived her right to challenge the tenancies via the Assignment.

Defendants argue that new allegations Seifer lacked capacity to enter leases contradict previous allegations that Seifer entered into a complex sales transaction with Plaintiff in December 2016 and, therefore, allegations of Seifer’s lack of capacity are a sham pleading. (Demurrer, pgs. 15-16, FAC ¶¶29-30, 63-65.) However, the allegations do not constitute a sham pleading since they do not contradict the prior allegations which only concerned the sale of the building. Defendants failed to identify how the allegations of the FAC and complaint relating to Seifer’s alleged capacity or lack of capacity at specific instances contradict each other. (See Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-384 (“It is axiomatic that the function of a demurrer is to test the legal sufficiency of the pleading by raising questions of law. [Citation] It is also well established that, when reviewing a judgment entered following the sustaining of a demurrer without leave to amend, the appellate court must assume the truth of the factual allegations of the complaint. [Citation] However, an exception exists where a party files an amended complaint and seeks to avoid the defects of a prior complaint either by omitting the facts that rendered the complaint defective or by pleading facts inconsistent with the allegations of prior pleadings. [Citations] In these circumstances, the policy against sham pleading permits the court to take judicial notice of the prior pleadings and requires that the pleader explain the inconsistency. If he fails to do so the court may disregard the inconsistent allegations and read into the amended complaint the allegations of the superseded complaint. [Citations]”).) Allegations the tenancies are invalid due to Seifer’s lack of capacity are not inconsistent with allegations that Seifer entered into a sale agreement for the Buildings for the purposes of the instant demurrer.

Defendants also argue the cause of action fails as a matter of law as to DOES 101-105 because the Court previously granted summary adjudication of this claim in their favor. (Demurrer, pg. 16.) However, summary adjudication was granted on the cause of action as alleged in the complaint, prior to the Court granting Plaintiff leave to amend to file the FAC, for which leave was granted to assert the declaratory relief cause of action against DOES 101-105. As such, for the purposes of the demurrer, the cause of action does not fail due to the Court’s prior ruling on the motion for summary adjudication. To the extent Defendants seek to challenge the allegations as to DOES 101-105 separate from other Defendants, the only argument presented is that the prior ruling on summary adjudication presents a bar. However, summary adjudication addressed submitted evidence based on the allegations at the time, and Defendants have not argued how the allegations of the original complaint and instant FAC are identical to warrant sustaining the demurrer on these grounds.

For the purposes of a demurrer, Plaintiff alleged sufficient facts to state a cause of action for declaratory relief against Defendants. Plaintiff alleges an actual controversy exists relating to the rights and duties of Plaintiff and Defendants given they dispute the validity of Defendants’ tenancies at the Buildings. Specifically, Plaintiff alleges Defendants’ tenancies are invalid since they were the result of contracts entered into by Seifer’s agent Holmstrom without Seifer’s authority and Defendants knew or should have known the contracts were defrauding Seifer.

Based on the foregoing, Defendants’ demurrer to the 1st cause of action is overruled.

Declaratory Relief (in the Alternative) (6th COA)

Plaintiff’s alternative cause of action for declaratory relief (6th COA) is based on allegations that if the Court finds any valid tenancies, Plaintiff and those Defendants need to know the terms of such tenancies going forward and, “for the twelfth cause of action.” (FAC ¶269.) [The Court notes the FAC does not include a 12th COA; however, based on arguments in the opposition, it appears references to the 12th COA are actually in reference to the 7th (breach of contract) cause of action.] Plaintiff seeks declaratory relief as to the following: (1) in the event Defendants are permitted to stay, whether they are to be bound by the no-subletting provision from the AAGLA form lease; (2) whether Defendants are entitled to claimed rights that contradict their estoppel certificates (such as the right to paid for parking and utilities) which Plaintiff disputes; (3) whether rent control laws apply to Defendants who do not live in the Buildings and/or have vacated and return several times; (4) whether the “rents” should be set at the amount they could have been raised to; (5) what the proper “rent” is going forward and the accrued “rent” as of the date of the declaration of rights; (6) whether Plaintiff has the right to add roommates of its choosing to Defendants’ units; and (7) whether Defendants abandoned their units and then attempted to reclaim them without permission. (FAC ¶269.)

Defendants argue the alternative declaratory relief cause of action in which Plaintiff seeks to set forth the terms of the purported tenancies, to the extent they do exist, cannot state a claim because the Assignment establishes there is no dispute to the material terms of Defendants’ leases. (Demurrer, pgs. 16-18.) However, the Court has not taken judicial notice of the truth of the matters asserted within the Assignment, and as such, this argument is without merit. The truth of whether Seifer agreed that all terms listed in the tenant estoppel certificates provided were accurate and contained all the material terms of the tenancies is not before the Court at the demurrer stage, especially considering Plaintiff’s allegations the estoppel certificates were the product of fraud. In addition, on the face of the Assignment, the only term of the tenancies agreed to by Seifer was that none of the tenancies exceed one-year duration; otherwise, the Assignment indicates Plaintiff shall have the right to challenge leases entered into at materially below-market rates that appear to benefit either management and/or the tenants at Seifer’s expense. Defendants cite C9 Ventures v. SVC-West, L.P. (2012) 202 Cal.App.4th 1483, 1505 for the position that repeated use in the past of form documents does not constitute a course of dealing or assent to the terms even where use was between the same parties. (Demurrer, pg. 18.) Plaintiff disputes C9 Ventures applies to the instant action since it involved two merchants and the application of the California Uniform Commercial Code. (Opposition, pg. 12.) However, even if C9 Ventures, which involved an alleged oral contract and whether certain terms could be implied therein based on unsigned invoices, does apply, the case involved a reversal of a judgment after trial and as such, involved considering and weighing the evidence and not the sufficiency of the pleadings.

Defendants also argue the Court has no power to imply the terms of the leases based on a pattern and practice of using AAGLA leases. (Demurrer, pgs. 18-19.) However, Plaintiff seeks declaratory relief as to the terms of the leases that the parties agreed upon. While Defendants assert the estoppel certificates demonstrate the terms of the underlying leases were not in dispute, the estoppel certificates do not actually set forth the terms of those leases, only the parties’ intendent and understanding of the leases. For the purposes of a demurrer, Plaintiff alleged sufficient facts to state a cause of action for declaratory relief.

Based on the foregoing, Defendants’ demurrer to the 6th cause of action is overruled.

Declaratory Relief (in the Alternative) (8th COA)

Plaintiff’s alternative cause of action for declaratory relief (8th COA) is based on allegations that in the event the Court finds any valid tenancies, Plaintiff seeks a determination as to the following actions of Plaintiff’s agents: (1) informing Defendants it believed they did not have valid tenancies did not violate any laws or the terms of the tenancy; (2) Plaintiff did not cut off trash service and any disruption was caused by Athens Services or the City of Los Angeles; (3) Plaintiff did not cut off any other services or utilities except that Plaintiff did not continue paying utilities that were individually metered to Defendants and for which Defendants signed estoppel certificates claiming they paid for those service and Plaintiff temporarily turned off master-metered utilities for brief periods to conduct maintenance; (4) Plaintiff did not restrict parking beyond the estoppel certificates; (5) management under Plaintiff has always been as good as, if not superior, to that provided by Holmstrom; (6) Plaintiff’s counsel’s questions at a deposition are not actionable under Civil Code §47(b) (“Section 47(b)”); (7) Plaintiff’s discussions with Defendants were either privileged settlement discussions or lawful maintenance-related discussions; (8) Plaintiff’s refusal to accept rent from Defendants was a valid exercise of its rights under Section 47(b) and refusing to accept rent was intended solely to strengthen its claims and weaken Defendants’ defenses and for no other purpose; (9) Plaintiff has not entered any unit without permission of an occupant or pursuant to a Civil Code §1954 Notice; (10) Plaintiff has never surveilled any Defendant; and (11) Plaintiff has never engaged in any conduct reasonably calculated to get Defendants to leave the Buildings other than the privileged filing of the instant action. (FAC ¶273.)

Plaintiff failed to allege facts to constitute a cause of action for declaratory relief. Plaintiff fails to allege the existence of an actual controversy, and rather, the cause of action seeks a declaration as to past wrongs and is improper. (Travers v. Louden (1967) 254 Cal.App.2d 926, 931 [“There is unanimity of authority to the effect that the declaratory procedure operates prospectively, and not merely for the redress of past wrongs. It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs; in short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them.”].) Plaintiff seeks a declaration that its past actions were not a violation of the leases or existing laws and appears to be directed at addressing the allegations of Defendants’ cross-complaint, rather than a continuing issue as to the respective rights and duties of the parties. In opposition, Plaintiff argues a cause of action for declaratory relief that involves past wrongs is sufficient where the parties have an ongoing relationship regardless of the breach or past conduct. (Opposition, pg. 14.) However, as alleged, the cause of action does not seek declaratory relief as to conduct that would continue given the parties’ ongoing relationship, and instead seeks a declaration that prior conduct by Plaintiff did not violate leases or laws.

Plaintiff bears the burden of proving there is a reasonable possibility of amendment. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In opposition, Plaintiff requests leave to amend, but does not address how it can amend its pleadings to cure the defects raised in the demurrer. Accordingly, Plaintiff has not met its burden.

Based on the foregoing, Defendants’ demurrer to the 8th cause of action is sustained without leave to amend.

Breach of Contract (in the Alternative) (7th COA)

“To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant’s breach and resulting damage. [Citation]” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) “If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached an incorporated by reference.” (Ibid.) (See also Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199 (“In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language. [Citation]”).) “The elements of a breach of oral contract claim are the same as those for a breach of written contract: a contract; its performance or excuse for nonperformance; breach; and damages.” (Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 453.) A claim for breach of contract is subject to demurrer if it cannot be determined from the pleading whether the alleged contract was oral, written, or implied by conduct. (C.C.P. §430.10(g).)

Plaintiff’s breach of contract cause of action is stated in the alternative, in the event the Court finds any valid tenancies. (FAC ¶271.) Plaintiff alleges Defendants failed to pay rents due “as determined in the eleventh cause of action,” and sublet and ran businesses in violation of the agreement as determined, “in the eleventh cause of action.” (FAC ¶271.) In opposition, Plaintiff asserts references to the eleventh cause of action were in error, and those references should have stated sixth cause of action, which is for declaratory relief to determine the terms of the purported leases entered into between Plaintiff’s predecessor-in-interest and Defendants.

Plaintiff failed to allege sufficient facts to constitute a breach of contract cause of action against Defendants. Plaintiff failed to allege the terms of the contract entered into between the parties. Plaintiff’s allegations do not establish whether the alleged contracts were oral, written, or implied by conduct. In addition, Plaintiff has not alleged any breach by Defendants. Allegations that Defendants failed to pay rents due and/or sublet and ran businesses in violation of the agreement as determined in the 6th cause of action depend on a determination that the terms of the contracts were as alleged in the 6th cause of action. However, the 6th cause of action does not set forth alleged contractual terms, only requests for declaratory relief as to whether the parties agreed to certain terms.

Based on the foregoing Defendant’s demurrer to the 7th cause of action is sustained with leave to amend.

B. Motion to Strike

Defendants move to strike allegations from the FAC that are irrelevant, false, and improper. Specifically, Defendants move to strike Headings A, B, and certain allegations and/or phrases contained in ¶¶19-22, 25-27, 28, 29, 32-46, 50, 47-49, 52, 54-56, 59, 60-61, 63, 65-71, 73-78, 80, 81, 83-87, 89-103, 105-112, 114, 116-119, 121-123, 125, 127, 128, 130-134, 136, 141, 142, 144-147, 151, 153-181, 184-189, 191-196, 198-222, 224-227, 229-233, 235-237, 239-245, 249, 250, 254, 255, 260, 263, 264, 265, 269(a)-(g), 271, 273(a)-(k), and Prayer ¶¶2 [a writ of ejectment], 4 [punitive damages], 6 [declaration of the terms of the putative tenancy], 7 [damages for violating tenancy], and 8 [declaration that Plaintiff did not break any laws or contracts with respect to tenancies]. (Motion, Exh. 1.)[1]

C.C.P. §436 provides that the Court may, upon a motion made pursuant to C.C.P. §435, or at any time within its discretion and upon terms it deems proper, “strike out any irrelevant, false, or improper matter inserted in any pleading” and/or “strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

As a preliminary matter, based on the ruling on the demurrer, the motion to strike is moot as to ¶271 and Prayer ¶7, which are based on the 7th cause of action, for which Plaintiff has been granted leave to amend. In addition, the motion to strike is moot as to ¶273(a)-(k) and Prayer ¶8, given the demurrer to the cause of action was sustained without leave to amend.

The Court declines to strike allegations that conflict with the Assignment, including: (1) allegations that reference false or inaccurate tenant estoppels [FAC ¶¶50, 56, 59, 61, 84, 85, 90, 107, 108, 109, 121, 131, 178, 188, 196, 203, 211, 221, 227, 230, 237, 245, 260, 269(b) and (d)]; (2) Defendants’ possessed the units without Seifer’s authority [FAC ¶¶53, 85, 151, 212, 213; (3) Seifer’s alleged lack of capacity to enter into the tenancies [FAC ¶¶36, 87, 247, 249]; (4) Seifer’s alleged lack of consent to the Defendants’ tenancies, Defendants’ wrongful possession of their units or that Defendants surrendered, abandoned or retaking possession prior to December 2016 [FAC ¶¶53, 68, 141, 148, 151, 173, 175, 220, 244, 269(g)]; and (5) that Defendants have “unknown primary residences.” FAC ¶¶3-17, 92, 111]. (Motion, pgs. 5-7.) [The Court notes Exhibit 1 referenced in the Notice of Motion does not indicate Defendants seek to strike ¶¶3-17 from the FAC, and as such, Plaintiff has not been given notice of the intent to strike these allegations.] The truth of the matters asserted in the Assignment are not subject to judicial notice, and as such, the allegations set forth in the complaint that Defendants assert contradict with the effect of the Assignment (Seifer’s affirming of Defendants’ tenancies) are not subject to a motion to strike.

Defendants argue the FAC at ¶¶91, 116, 132, 167, 187, 250 include allegations that contradict the LA Rent Control Statutes relating to the intent of the Rent Control Board given the definition of tenant in the Los Angeles Municipal Code §151.02 as: “A tenant, subtenant, lessee, sublessee or any other person entitled to use or occupancy of a rental unit.” (Motion, pgs. 8-9, fn. 1.) Plaintiff does not address these allegations in opposition, and the allegations appear to be false and improper. Accordingly, Defendants’ motion to strike these allegations is granted as to these allegations.

The Court also declines to strike allegations concerning non-party Jeffery Melichar (“Melichar”), Seifer’s background and age, and personal information regarding Defendants’ jobs and ages [FAC ¶¶32-46, 20- 22, 25, 194, 91, 111, 112, 116, 117, 145, 147, 149, 150, 151, 155, 171]. For the purposes of a motion to strike, the allegations are relevant to the causes of action.

The Court declines to strike allegations concerning elder abuse by Melichar and Holmstrom notwithstanding the Court’s denial of leave for Plaintiff to amend to add an elder abuse claim in the FAC [¶¶32-46, 52, 53, 87 and 269(d)]. The allegations provide background for the causes of action.

Plaintiff is entitled to an order striking allegations and references to Defendants’ alleged conspiracy to the extent they contradict the Court’s prior ruling on summary adjudication [FAC ¶¶49, 52, 55, 65, 67,68, 90, 109, 131, 188, 196, 221, 226, 237, 245, 255]. Accordingly, Defendants’ motion to strike is granted as to these allegations with leave to amend.

The Court declines to strike allegations concerning deposition testimony and declarations submitted in this action [FAC ¶¶50, 69, 70, 71, 75-78, 92-103, 107, 110, 114, 117-119, 121, 123, 133- 136, 146, 154, 193, 211].

The Court declines to strike the prayer for punitive damages. While the request to strike punitive damages is included in Exhibit 1 to the motion, the motion itself submits no argument in support of the request. Moreover, the reason provided in Exhibit 1 fails to establish that, based on the face of the pleading, Plaintiff is not entitled to seek an award for punitive damages.

Based on the foregoing, Defendants’ motion to strike is moot in part, granted in part, and denied in part, as described above.

Dated: May _____, 2021

Hon. Monica Bachner

Judge of the Superior Court


[1] The Notice indicates that Defendants attached a chart (Exhibit 1) to identify the allegations they seek to strike. Insofar as certain allegations are described in Exhibit 1, but no argument is presented in the motion, the motion is denied as unsupported.

Case Number: BC643861    Hearing Date: September 23, 2020    Dept: 47

A.C.A., LLC v. Myron Jeppson Holmstrom, et al.

 

 GIVEN THE CURRENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES REMOTE APPEARENCES BY “LACourtConnect.” PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR REMOTELY AT WWW.LACOURT.ORG/LACC/. NO OTHER TYPES OF REMOTE APPEARANCES ARE AVAILABLE FOR THIS PARTICULAR COURTROOM, INCLUDING COURT CALL. IF YOU APPEAR IN PERSON AT THE HEARING, YOU WILL BE SUBJECT TO ALL SOCIAL DISTANCING RULES, INCLUDING THE WEARING OF AN APPROPRIATE FACE MASK/COVERING (ABSENT ANY EXCEPTIONAL CIRCUMSTANCES) AS CONTAINED IN THE APPLICABLE GENERAL ORDERS ISSUED BY THE PRESIDING JUDGE OF THE L.A.S.C

MOTION FOR LEAVE TO FILE VERIFIED AMENDED COMPLAINT

MOVING PARTY: Plaintiff A.C.A., LLC

RESPONDING PARTY(S): Defendants Paola Caldera, Mian Guo, Jia Shen, Yunying Li, Min Zhou, Yavuz Ertas, Nima Razfar, Ali Razfar, Jessica Caldera, Nadia Saban, Lily Saban, Paul Luigi, Janchung Ozu, Daniel Sacilotto, and Arnaud LaRousse

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Rita Seifer, who owned the building at issue before Plaintiff purchased it, assigned her claims against Defendant Holmstrom, the property manager, and his co-conspirators, tenants of the building, to Plaintiff. Defendant allegedly engaged in a scheme whereby he would charge tenants less than market rent, pocket half of that rent (paid in cash), and send the other half to Seifer as landlord. He would also collect money paid by tenants for utilities and have Seifer pay for the utilities.

Plaintiff moves for leave to file a verified amended complaint.

TENTATIVE RULING:

Plaintiff A.C.A., LLC’s motion for leave to file a verified amended complaint is DENIED without prejudice.

DISCUSSION:

Motion for Leave to File Verified Amended Complaint

Analysis

Plaintiff seeks leave to file a first amended complaint to (1) add specificity to its allegations against certain Defendants, (2) relabel its breach of fiduciary cause of action as aiding and abetting breach of fiduciary duty, (3) add alternative theories of liability, and (4) remove causes of action for professional negligence and unfair business practices.

The Court may, “at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, . . . allow the amendment of any pleading.” (CCP § 576.) A motion to amend a pleading before trial must meet the following requirements:

(a) Contents of motion

A motion to amend a pleading before trial must:

(1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

(b) Supporting declaration

A separate declaration must accompany the motion and must specify:

(1) The effect of the amendment;

(2) Why the amendment is necessary and proper;

(3) When the facts giving rise to the amended allegations were discovered; and

(4) The reasons why the request for amendment was not made earlier.

 

(CRC 3.1324.)

Contents of Motion

Plaintiff has included a copy of the proposed first amended complaint, as required by CRC 3.1324(a)(1). Plaintiff has not, however, stated the allegations that are proposed to be deleted or added by page, paragraph, and line number, as required by CRC 3.1324(a)(2) and (3). Thus, Plaintiff has not complied with the requirements for the contents of the motion.

If this had been Plaintiff’s only error, which Plaintiff attempted to correct by including a redlined version of the original complaint with its reply, the Court might have considered the motion on the merits (to the extent the ruling on the motion for summary adjudication did not render it moot), once it had given Defendants a chance to address the redlined version at the hearing. However, Plaintiff’s declaration – and supplemental declaration – also utterly fail to comply with CRC 3.1324, as discussed below.

Supporting Declaration

Plaintiff’s declaration – and supplemental declaration – fail to explain (1) the effect of the amendments, (2) why the amendments are necessary and proper, and (3) when the facts giving rise to the amended allegations were discovered. Plaintiff only purports to satisfy one of the four requirements for the declaration in support of a motion for leave to amend, by explaining that this motion was not filed earlier due to the pandemic. (Declaration of Andres F. Quintana ¶ 2.)

As noted above, had Plaintiff corrected all of these deficiencies in reply, the Court might have opted to consider the motion while allowing Defendants to respond to any new information presented in reply. Here, however, Plaintiff has only corrected one of the many deficiencies with the motion.

Accordingly, the motion is DENIED without prejudice to filing a motion for leave to amend the complaint that complies with CRC 3.1324.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: September 23, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Case Number: BC643861    Hearing Date: September 08, 2020    Dept: 47

A.C.A., LLC v. Myron Jeppson Holmstrom, et al.

 

 

GIVEN THE CURRENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES REMOTE APPEARENCES BY “LACourtConnect.” PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR REMOTELY AT WWW.LACOURT.ORG/LACC/. NO OTHER TYPES OF REMOTE APPEARANCES ARE AVAILABLE FOR THIS PARTICULAR COURTROOM, INCLUDING COURT CALL. IF YOU APPEAR IN PERSON AT THE HEARING, YOU WILL BE SUBJECT TO ALL SOCIAL DISTANCING RULES, INCLUDING THE WEARING OF AN APPROPRIATE FACE MASK/COVERING (ABSENT ANY EXCEPTIONAL CIRCUMSTANCES) AS CONTAINED IN THE APPLICABLE GENERAL ORDERS ISSUED BY THE PRESIDING JUDGE OF THE L.A.S.C.

MOTION FOR SUMMARY ADJUDICATION

MOVING PARTY: Defendants Paola Caldera, Mian Guo (erroneously sued as Mian Gvo), Jia Shen, Yunying Li (erroneously sued as Yun Ying Li), and Min Zhou

RESPONDING PARTY(S): Plaintiff A.C.A., LLC

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Rita Seifer, who owned the building at issue before Plaintiff purchased it, assigned her claims against Defendant Holmstrom, the property manager, and his co-conspirators, tenants of the building, to Plaintiff. Defendant allegedly engaged in a scheme whereby he would charge tenants less than market rent, pocket half of that rent (paid in cash), and send the other half to Seifer as landlord. He would also collect money paid by tenants for utilities and have Seifer pay for the utilities.

Five of the tenant defendants move for summary adjudication.

TENTATIVE RULING:

Defendants Paola Caldera, Mian Guo, Jia Shen, Yunying Li, and Min Zhou’s motion for summary adjudication is GRANTED as to Issues No. 2 through 7.

The motion is DENIED as to Issue No. 1 and Issue No. 8.

DISCUSSION:

Motion for Summary Adjudication

Plaintiff’s Evidentiary Objections

Pursuant to CCP§ 437c(q), the Court only rules upon those evidentiary objections as to the following evidence which the Court deems to be material to the disposition of this action:

Declaration of Yunying Li

No. 3: OVERRULED. Proper lay opinion; not argumentative; goes to weight.

No. 4: OVERRULED. Sufficient foundation and personal knowledge.

No. 5: OVERRULED. Proper lay opinion; not argumentative; goes to weight.

No. 8: OVERRULED. Proper lay opinion; not argumentative.

Declaration of Paola Caldera

No. 13: OVERRULED. Proper lay opinion; not argumentative; goes to weight.

No. 14: OVERRULED. Sufficient foundation and personal knowledge.

No. 15: OVERRULED. Proper lay opinion; not argumentative; goes to weight.

No. 18: OVERRULED. Proper lay opinion; not argumentative.

Declaration of Jia Shen

No. 21: OVERRULED. Proper lay opinion; not argumentative; goes to weight.

No. 22: OVERRULED. Sufficient foundation and personal knowledge.

No. 23: OVERRULED. Proper lay opinion; not argumentative; goes to weight.

No. 25: OVERRULED. Proper lay opinion; not argumentative.

Declaration of Min Zhou

No. 27: OVERRULED. Proper lay opinion; not argumentative; goes to weight.

No. 28: OVERRULED. Sufficient foundation and personal knowledge.

No. 29: OVERRULED. Proper lay opinion; not argumentative; goes to weight.

No. 32: OVERRULED. Proper lay opinion; not argumentative.

Declaration of Jeffrey R. Melichar

No. 36: OVERRULED. Sufficient foundation and personal knowledge; not speculative; relevant; not argumentative; not inadmissible hearsay; other objections go to weight.

Defendants’ Evidentiary Objections

Pursuant to CCP§ 437c(q), the Court only rules upon those evidentiary objections as to the following evidence which the Court deems to be material to the disposition of this action:

Declaration of Damien Ahkavi

No. 1: OVERRULED. Not a legal conclusion; not improper argument; relevant.

Request for Judicial Notice

Plaintiff requests judicial notice that (1) Defendant Jia Shen previously declared under penalty of perjury that none of the alleged “rental” payments had been cashed and that Defendants Li and Zhou state that Shen also makes their “rental” payment; (2) that Defendants’ cross-complaint alleges “rent” was not accepted; (3) that Mian Guo resides in China as set forth in Shen’s Declaration; (4) the contents of an order by Judge Beckloff in “Exhibit U,” and (5) that Exhibits Q through V were filed in Los Angeles Superior Court Case No. SC125932.

These requests are DENIED. Plaintiff apparently expects the Court to hunt through its filings, including over 1500 pages of exhibits and associated declarations, to find the documents obliquely referred to here and assess whether they are the types of documents that are properly the subject of judicial notice. Even if the Court concluded that these documents were of the type that are appropriate for judicial notice, however, the Court would not take judicial notice of the truth of the matters asserted therein. (Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 113.) In any event, Plaintiff has not established that any of these propositions and/or documents are subject to judicial notice or even relevant. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].)

Analysis

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

When deciding whether to grant summary adjudication, the Court must consider all of the evidence set forth in the papers, except evidence to which the Court has sustained an objection, as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary adjudication. (Ibid.)

When a defendant moves for summary adjudication, it must show that one or more elements of the cause of action at issue cannot be established or that there is a complete defense to that cause of action. (CCP § 437c(p)(2).) If the defendant meets its burden to show, by a preponderance of the evidence, that an essential element of a cause of action cannot be established, the burden shifts to the plaintiff to prove the existence of a triable issue of fact regarding that element. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) If the plaintiff is unable to do so, the defendant is entitled to judgment as a matter of law as to that cause of action or affirmative defense. (Ibid.)

Issue No. 1: “The Fifth Cause of Action for Conspiracy to Breach Fiduciary Duties fails because Defendants cannot as a matter of law conspire to breach fiduciary duties they do not independently owe; and Defendants did not owe a fiduciary duty to Rita Seifer or Plaintiff.”

Defendants’ argument as to this cause of action is solely that it “fails as a matter of law.” (Motion, at p. 12.) Therefore, the motion must be treated as a motion for judgment on the pleadings as to this cause of action, and the allegations of the complaint must be accepted as true. (America Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118.)

Defendants argue that this cause of action fails as a matter of law because they cannot conspire to breach fiduciary duties that they do not independently owe. However, even though Plaintiff alleges that these Defendants are “conspiring ‘tenants’” (¶ 17) and uses language that suggests a conspiracy in this cause of action (¶ 35), the fifth cause of action is labeled “Breach of Fiduciary Duty,” not “Conspiracy to Breach Fiduciary Duty.” (Complaint, at p. 7.) Plaintiff argues that it alleges a cause of action for “aiding and abetting a breach of fiduciary duty” as to these Defendants, which does not necessarily require them to independently owe Plaintiff a fiduciary duty. (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1477.) The question is whether Plaintiff has sufficiently alleged a cause of action for aiding and abetting a breach of fiduciary duty and, if not, whether leave to amend should be granted.

There are “two different theories” under which a defendant may be liable for aiding and abetting a breach of fiduciary duty. (Ibid.) One theory, “like conspiracy to breach a fiduciary duty, requires that the aider and abettor owe a fiduciary duty to the victim and requires only that the aider and abettor provide substantial assistance to the person breaching his or her fiduciary duty.” (Ibid.) The second theory “arises when the aider and abettor commits an independent tort.” (Ibid.) “This occurs when the aider and abettor makes ‘a conscious decision to participate in tortious activity for the purpose of assisting another in performing a wrongful act.’” (Ibid., citation omitted.)

Plaintiff alleges no fiduciary duty owed by these Defendants. (Complaint ¶¶ 32-35.) Therefore, Plaintiff cannot rely on the first theory. (Complaint ¶¶ 32-35.) Rather, Plaintiff alleges the following:

DOES 1 through 200 had actual knowledge of Holmstrom’s fiduciary duties to Seifer, and all breaches thereof, and intended the same. They all provided substantial assistance, including accepting the benefits of artificially low “rent,” paying cash, and signing estoppel certificates with knowingly false “rents.” This assistance was a substantial factor in causing $1,500,000.00 in harm.

(¶ 35.)

Based on this allegation, Plaintiff argues that it has sufficiently alleged a cause of action for aiding and abetting a breach of fiduciary duty or, alternatively, that it should be given leave to amend to allege this cause of action.

In American Master Lease, the plaintiff “pleaded and proved that defendants had actual knowledge of the fiduciary duties Andrews, Runnels, and Franklin owed to AML, that defendants provided the three fiduciaries with substantial assistance in breaching their duties, and that defendants’ conduct resulted in unjust enrichment.” (American Master Lease, supra, 225 Cal.App.4th at 1477.) Based on these allegations, the court concluded that the “trial court did not err in ruling, on demurrer and in connection with the jury instructions, that defendants could be liable for aiding and abetting a breach of fiduciary duty even though they did not owe a fiduciary duty to AML.” (Id. at 1478, footnote omitted.)

Plaintiff’s allegations parallel those in American Master Lease, and therefore Plaintiff has sufficiently alleged a cause of action for aiding and abetting a breach of fiduciary duty, taking those allegations as true, as is required when judgment on the pleadings is sought. Defendants argue that Plaintiff does not allege “independently tortious conduct” on their part, but Plaintiff does allege an independent tort against these Defendants earlier in the complaint – trespass – that is incorporated into this cause of action by reference. (¶¶ 26-31, 32.) Plaintiff also alleges within this cause of action that these Defendants signed “estoppel certificates with knowingly false ‘rents,’” which is later alleged as part of an intentional misrepresentation claim. (¶¶ 35, 55-57.) Thus, Plaintiff has sufficiently alleged this cause of action.

Accordingly, the motion is DENIED as to Issue No. 1, which is treated as a motion for judgment on the pleadings as to the fifth cause of action. Whether to grant Plaintiff leave to amend the label of this cause of action or any other aspect of it will be considered in connection with Plaintiff’s pending motion for leave to amend the complaint.

Issue No. 2: “The Ninth Cause of Action for Intentional Interference with the Property Manager’s Contract fails because Holmstrom cannot conspire with Defendants to breach his own contract, an interference claim cannot be based on “expectancy” in a contract[,] and there is no dispute of fact that Defendants did not engage in conduct intended to interfere with Holmstrom’s oral management agreement.”

Defendants first argue that this cause of action fails as a matter of law because they cannot conspire with Holmstrom to breach his own contract. This argument must be treated as a motion for judgment on the pleadings. Despite Plaintiff’s inartful use of the disfavored practice[1] of incorporating all previous allegations by reference, however, Plaintiff excluded Holmstrom from this cause of action and alleges that these Defendants knew of the contract between Plaintiff’s assignor and Holmstrom and interfered with it. (Complaint ¶¶ 64-67.)

Defendants make another argument that amounts to a request for judgment on the pleadings: that a claim for intentional interference with contract cannot be based on an “expectancy” in a contract. Neither case Defendants cite stand for that proposition; at most they could be taken to mean that this cause of action cannot be based solely on knowing interference with Plaintiff’s expectancy; something more is required. (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393 [holding that a plaintiff must prove that the defendant “not only knowingly interfered with the plaintiff’s expectancy, but engaged in conduct that was wrongful by some legal measure other than the fact of interference itself,” bold emphasis added]; Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village Square Venture Partners (1997) 52 Cal.App.4th 867, 881 [same].) Specifically, the plaintiff must show that the “defendant’s conduct was independently wrongful.” (Bed, Bath & Beyond, supra, 52 Cal.App.4th at 881.) For the reasons discussed in connection with the previous issue, this argument is without merit when viewed through the lens of a motion for judgment on the pleadings.

Finally, Defendants raise an argument that does implicate evidence: they argue that it is undisputed that they did not engage in conduct intended to interfere with Holmstrom’s oral management agreement. More specifically, they argue that they had no knowledge of any contract, that they took no action to interfere with the contract, and that there is no evidence Holmstrom breached the contract. (Motion, at p. 15.) To support these arguments, Defendants have presented evidence, in the form of declarations of four of the five Defendants,[2] that they had no knowledge of the terms of any agreement between Mr. Holmstrom and Ms. Seifer and did not attempt to interfere with any such agreement. (Defendants’ Separate Statement of Undisputed Material Fact (“UMF”) No. 24; Shen Decl. ¶ 5; Zhou Decl. ¶ 5; Li Decl. ¶ 5; Caldera Decl. ¶ 5.) Rather, their only involvement with Mr. Holmstrom was to give him their rent and to request repairs when necessary. (Ibid.) They have also presented evidence that Mr. Holmstrom had the discretion to offer the units at a reduced rental rate, although the supporting evidence does not, as Defendants contend, show that Mr. Holmstrom had “express authority from Mrs. Seifer” to rent the units or to set the rental rates. (UMF No. 8; Declaration of Jeffrey R. Melichar ¶ 6.)

Defendants’ evidence that they did not know about any agreement between Mr. Holmstrom and Ms. Seifer, other than knowing that he was the resident manager and performed maintenance, and that they took no action to interfere with any such contract is sufficient to meet their prima facie burden of proof that Plaintiff cannot prove at least one element of this cause of action. The burden therefore shifts to Plaintiff to prove that there is a genuine issue of material fact as to at least one of these elements.

Here, Plaintiff has not produced any evidence in opposition to Defendants’ claims; nor did Plaintiff present any argument as to this cause of action. Plaintiff objects to Defendants’ evidence but offers none of its own in connection with these material facts. (Plaintiff’s Separate Statement (“SS”) Nos. 8, 24.) As discussed above in connection with Plaintiff’s evidentiary objections, this evidence is admissible.

Accordingly, summary adjudication is GRANTED as to Issue No. 2.

Issue No. 3: “The Eleventh Cause of Action for Professional Negligence fails because Defendants did not owe a professional duty of care to Rita Seifer or Plaintiff.”

Although the eleventh cause of action is explicitly alleged “as to all Defendants” (Complaint, at p. 13), Plaintiff concedes that there are “no charging allegations against any of the Defendants” and that the label was a mistake. (Oppo., at pp. 8-9, emphasis in original.) Nevertheless, this cause of action is clearly alleged against these Defendants, however erroneously and however improperly, given that there are no allegations against these Defendants that would amount to professional negligence.

Accordingly, the motion for summary adjudication is GRANTED as to Issue No. 3.

Issue No. 4: “The Twelfth Cause of Action for Violation of B&P Code § 17200 fails because Defendants are not engaged in a business, the conduct alleged does not constitute an unfair or illegal business practice by a competitor[,] and Plaintiff cannot prove an injury under the UCL.”

Plaintiff characterizes this issue as another seeking judgment as a matter of law, but here Defendants argue, in part, that the undisputed facts show that they are not engaged in a “business” for purposes of this statute. Defendants do also argue that this claim “fails as a matter of law to the extent that Plaintiff seeks disgorgement of purported ‘profits’ as alleged in paragraph 82 [“each defendant received a profit of at least $750,000.00 plus interest”]. (Motion, at p. 24.) This argument is improper as it would only dispose of part of the cause of action. If Defendants wanted to seek summary adjudication only of this aspect of this cause of action, they would have needed to use the procedure outlined in CCP § 437c(t).

As to Defendants’ factual arguments, they present evidence that they have never been in the business of renting real property in Los Angeles County and have not rented out their units to others. (UMF Nos. 30-31; Shen Decl. ¶¶ 8-9; Zhou Decl. ¶¶ 8-9; Li Decl. ¶¶ 8-9; Caldera Decl. ¶¶ 8-9.) They also present evidence that Plaintiff cannot show that it suffered injury from any alleged unfair competition because the units are subject to rent control, and therefore Plaintiff could not raise the rent unless a tenant was evicted or voluntarily left. (UMF No. 2; Melichar Decl. ¶ 13, Exh. 2 at 46, 53, 59; Riley Decl. ¶¶ 2, 8; Exhs. 1, 11 at WCE00354 and 16.)

It is unnecessary to reach Defendants’ argument regarding Plaintiff’s standing, because they have met their prima facie case to show that they are not a “business” for purposes of Business & Professions Code § 17200. (Cf. That v. Alders Maintenance Association (2012) 206 Cal.App.4th 1419, 1427 [holding that a homeowners association was not a “business” for purposes of the UCL because it did not “participate as a business in the commercial market, much less compete in it”].) In contrast with the Unruh Civil Rights Act, in which “business establishment” is interpreted broadly, the “UCL’s purpose does not require the same broad construction of the word ‘business.’” (Ibid.) Here, Plaintiff has attempted to fit a square peg in a round hole by alleging UCL violations by these Defendants.

Because Defendants met their prima facie burden, Plaintiff has the burden to come forward with evidence of a triable issue of material fact. Plaintiff has not presented any such evidence here but argues that it should be granted a continuance because certain parties did not answer its questions regarding whether they had sublet their apartments and whether they owned real estate elsewhere. (SS Nos. 30, 31.) Plaintiff has not cited any authority, however, to suggest that these facts, even if true, would amount to a “business practice” on the part of the tenants under the UCL.

Accordingly, the motion for summary adjudication is GRANTED as to Issue No. 4.

Issue No. 5: “The Third Cause of Action for Ejectment fails because Plaintiff did not provide prior notice as required under Civil Code § 789 and there is no dispute of fact that Defendants are tenants with a superior right to possession based on the Los Angeles Rent Stabilization Ordinance (“LARSO”).”

Plaintiff alleges that Defendants should be ejected from the premises because of “a lack of formation of a valid tenancy . . . or in the alternative, rescission of the ‘leases.’” (Complaint ¶ 25.)

“A tenancy or other estate at will, however created, may be terminated by the landlord’s giving notice in writing to the tenant, in the manner prescribed by Section 1162 of the Code of Civil Procedure, to remove from the premises within a period of not less than 30 days, to be specified in the notice.” (Civil Code § 789.) Plaintiff argues that its “Complaint constitutes sufficient notice of Plaintiff’s intent to remove from the premises.” (Oppo., at p. 7.) The complaint is not, however, the type of notice specified in CCP § 1162 or the provisions referenced therein.

As noted above, Plaintiff alleges that Defendants should be ejected because a valid tenancy never formed. (Complaint ¶ 25.) If true, the notice requirement of Civil Code § 789 would not apply, because there would be no tenancy to terminate. (Norton v. Overholtzer (1923) 63 Cal.App. 388, 396 [holding that written notice under Civil Code § 789 was unnecessary where the alleged tenants took possession of the property without the permission of the owner].) Defendants have presented evidence, however, that they are tenants. (UMF Nos. 17-19; Shen Decl. ¶¶ 3-4; Zhou Decl. ¶¶ 3-4; Li Decl. ¶¶ 3-4; Caldera Decl. ¶¶ 3-4.) They have also presented evidence that they have not received any written notices other than the lawsuit. (UMF No. 29; Shen Decl. ¶¶ 8, 11; Zhou Decl. ¶¶ 8, 11; Li Decl. ¶¶ 8, 11; Caldera Decl. ¶¶ 8, 11.)

The Court finds that Defendants have met their initial burden, and therefore the burden shifts to Plaintiff to show that there is a genuine dispute of material fact. Here, Plaintiff has not disputed any of the relevant facts and has only, at most, raised objections to Defendants’ evidence, which are improper as discussed above.

Accordingly, summary adjudication is GRANTED as to Issue No. 5.

Issue No. 6: “The Fourth Cause of Action for Trespass fails because Plaintiff is not and never has been in possession of Defendants’ apartments and there is no dispute of fact that Defendants obtained possession of the premises with the permission of Rita Seifer.”

“The proper plaintiff in an action for trespass to real property is the person in actual possession . . . .” (Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 774.) Based on the undisputed facts discussed in connection with the causes of action above, Defendants have shown that they are in possession of the apartments.

Accordingly, summary adjudication is GRANTED as to Issue No. 6.

Issue No. 7: “The First Cause of Action for Declaratory Relief for Adjudication that No Tenancy Was Created with Defendants fails because the acceptance of rent by Rita Seifer and Plaintiff establishes as a matter of law a tenancy.”

Plaintiff’s cause of action for declaratory relief is based on its argument that there was a “lack of formation of a valid tenancy.” (Complaint ¶ 19.) As discussed in connection with Issue No. 5, however, Defendants have shown that they are tenants, and Plaintiff has not come forward with evidence of a genuine dispute of material fact as to that issue.

Accordingly, summary adjudication is GRANTED as to Issue No. 7.

Issue No. 8: “Defendants’ Affirmative Defenses of Laches and Waiver bars [sic] the Second Cause of Action for Rescission because Rita Seifer knew or should have known shortly after the alleged “fraudulent scheme” was initiated by Holmstrom that Holmstrom was renting units below current fair market rates and not tendering all rents collected.”

Defendants seek summary adjudication that their affirmative defenses of laches and waiver bar the second cause of action for rescission.

To show a complete defense, Defendants must present admissible evidence as to every essential element of the defense. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) Lack of substantial evidence on any element bars relief, “even if the plaintiff failed to introduce a scintilla of evidence challenging that element.” (Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 831.)

As to laches, Defendants have not met this burden. To successfully assert a laches defense, a defendant must demonstrate three elements: “(1) delay in asserting a right or a claim; (2) the delay was not reasonable or excusable; and (3) prejudice to the party against whom laches is asserted.” (Magic Kitchen LLC v. Good Things International, Ltd. (2007) 153 Cal.App.4th 1144, 1157.)

Here, Defendants have not shown that any delay in this case was unreasonable as a matter of law. Defendants argue that a delay of fourteen years – from 2002 when the scheme allegedly began to 2016 when this action was filed – is unreasonable. (Motion, at p. 27.) Delay is measured, however, from when the plaintiff “knew (or should have known)” of the conduct at issue. (Magic Kitchen, supra, 153 Cal.App.4th at 1157.) Defendants have not presented undisputed evidence establishing when Ms. Seifer knew or should have known of the alleged scheme.

As to waiver, likewise, Defendants have not met their burden. A waiver is a “relinquishment of a known right” and may occur “(1) by intentional relinquishment or (2) as ‘the result of an act which, according to its natural import, is so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.” (Gaunt v. Prudential Ins. Co. (1967) 255 Cal.App.2d 18, 23.) “Generally, the determination of waiver is a question of fact,” unless the relevant facts are undisputed. (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196.)

Here, Defendants argue that Plaintiff waived the right to rescind the leases by accepting rent and allowing them to remain in possession. (Motion, at p. 26.) Defendants have not presented evidence, however, that Plaintiff has acted inconsistently with enforcing its assigned rights. Moreover, even if Defendants had met their burden, Plaintiff has presented evidence that it has not deposited rent checks from Defendants since it purchased the buildings. (Plaintiff’s Additional Facts No. 2; Akhavi Decl. ¶ 2.) Although Defendants note that their rent payments were accepted by Plaintiff through escrow (UMF No. 16), the Court cannot say as a matter of law that Plaintiff’s acceptance of rent payments through escrow while refusing to accept or deposit rent checks is “so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.” Defendants may have a strong argument at trial, but Plaintiff’s “reasonableness” as to this issue is not amenable to summary adjudication based on Defendants’ showing.

Accordingly, summary adjudication is DENIED as to Issue No. 8.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: September 8, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court


[1] (See Uhrich v. State Farm Fire & Cas. Co. (2003) 109 Cal. App. 4th 598, 605 [referring to the practice of “incorporating all or most prior paragraphs within each purported cause of action” as “disfavored,” and noting that “[t]his type of pleading should be avoided as it tends to cause ambiguity and creates redundancy”].)

[2] There is no declaration from Defendant Mian Guo directly; the declaration of his wife Min Zhou discusses their collective knowledge. (Declaration of Min Zhou ¶ 5.)

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