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This case was last updated from Los Angeles County Superior Courts on 05/31/2019 at 02:32:38 (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 Judge overseeing this case is 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

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RANDOLPH M. HAMMOCK

 

Party Details

Plaintiff, Petitioner and Cross Defendant

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

15 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

HAGEMANN MICHAEL K.

Defendant Attorney

CHANDRA SEAN SURESH

Cross Plaintiff Attorney

RILEY DENNIS PATRICK ESQ.

Cross Defendant Attorney

QUINTANA ANDRES FELIPE ESQ.

 

Court Documents

EXHIBITS 11 TO 13

12/26/2017: EXHIBITS 11 TO 13

DEFENDANT DOES 101-PAOLA CALDERA'S CONSOLIDATED OPPOSITION TO PLAINTIFF'S MOTION TO: QUASH EQUITY TITLE DEPOSITION SUBPOENA FOR PRODUCTION OF DOCUMENTS [CODE CIV. PROC. 1985.3(G)]; ETC

1/12/2018: DEFENDANT DOES 101-PAOLA CALDERA'S CONSOLIDATED OPPOSITION TO PLAINTIFF'S MOTION TO: QUASH EQUITY TITLE DEPOSITION SUBPOENA FOR PRODUCTION OF DOCUMENTS [CODE CIV. PROC. 1985.3(G)]; ETC

DEFENDANTS' OBJECTION TO PLAINTIFF'S SUPPLEMENTAL ARGUMENT RE ORDER COMPELLING IN CAMERA INSPECTION OF DOCUMENTS

3/26/2018: DEFENDANTS' OBJECTION TO PLAINTIFF'S SUPPLEMENTAL ARGUMENT RE ORDER COMPELLING IN CAMERA INSPECTION OF DOCUMENTS

ORDER ON PLAINTIFF'S MOTION TO QUASH DEFENDANTS' SUBPOENA TO EQUITY TITLE COMPANY

4/12/2018: ORDER ON PLAINTIFF'S MOTION TO QUASH DEFENDANTS' SUBPOENA TO EQUITY TITLE COMPANY

NOTICE OF MOTION AND MOTION TO ENFORCE DEPOSITION SUBPOENAS AND REQUESTED DOCUMENTS; ETC.

6/4/2018: NOTICE OF MOTION AND MOTION TO ENFORCE DEPOSITION SUBPOENAS AND REQUESTED DOCUMENTS; ETC.

Minute Order

6/5/2018: Minute Order

CROSS-COMPLAINANTS' REPLY TO CROSS-DEFENDANTS' SUPPLEMENTAL BRIEF BASED ON BARAL V. SCHNITT

6/27/2018: CROSS-COMPLAINANTS' REPLY TO CROSS-DEFENDANTS' SUPPLEMENTAL BRIEF BASED ON BARAL V. SCHNITT

NOTICE OF APPEAL/CROSS-APPEAL

7/27/2018: NOTICE OF APPEAL/CROSS-APPEAL

CROSS-COMPLAINANTS' CONSOLIDATED OPPOSITIONS TO CROSS-DEFENDANT'S MOTIONS TO PRESERVE CONFIDENTIALITY AND STRIKE, SEAL, OR REDACT THE RILEY DECLARATION

8/6/2018: CROSS-COMPLAINANTS' CONSOLIDATED OPPOSITIONS TO CROSS-DEFENDANT'S MOTIONS TO PRESERVE CONFIDENTIALITY AND STRIKE, SEAL, OR REDACT THE RILEY DECLARATION

CROSS-DEFENDANTS REPLY IN SUPPORT OF THE MOTION TO STRIKE, SEAL, OR REDACT THE RILEY DECLARATION; PROOF OF SERVICE

8/7/2018: CROSS-DEFENDANTS REPLY IN SUPPORT OF THE MOTION TO STRIKE, SEAL, OR REDACT THE RILEY DECLARATION; PROOF OF SERVICE

DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION OF THE 1ST, 2ND 3RD 4TH, 5TH 9TH 11TH AND 12TH CAUSES OF ACTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

8/10/2018: DEFENDANTS' NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION OF THE 1ST, 2ND 3RD 4TH, 5TH 9TH 11TH AND 12TH CAUSES OF ACTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

NOTICE OF RELATED CASE

8/14/2018: NOTICE OF RELATED CASE

ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

8/17/2018: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

Minute Order

9/6/2018: Minute Order

DEFENDANTS' RESPONSE TO PLAINTIFF'S "BENCH BRIEF" AND "SEPARATE STATEMENT" RE: 170.6 CHALLENGE AND STAY OF PROCEEDINGS PENDING APPEAL

9/7/2018: DEFENDANTS' RESPONSE TO PLAINTIFF'S "BENCH BRIEF" AND "SEPARATE STATEMENT" RE: 170.6 CHALLENGE AND STAY OF PROCEEDINGS PENDING APPEAL

AMENDMENT TO COMPLAINT

9/13/2018: AMENDMENT TO COMPLAINT

Proof of Personal Service

4/30/2019: Proof of Personal Service

ANSWER OF DOE DEFENDANTS' 101, 102, 103, 104 AND 105 TO COMPLAINT FOR DECLARATORY RELIEF, RESCISSION, EJECTMENT, FRAUD, DAMAGES AND RESTITUTION

7/3/2017: ANSWER OF DOE DEFENDANTS' 101, 102, 103, 104 AND 105 TO COMPLAINT FOR DECLARATORY RELIEF, RESCISSION, EJECTMENT, FRAUD, DAMAGES AND RESTITUTION

262 More Documents Available

 

Docket Entries

  • 04/30/2019
  • Proof of Service by Substituted Service; Filed by A.C.A LLC (Plaintiff)

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  • 04/30/2019
  • Proof of Personal Service; Filed by A.C.A LLC (Plaintiff)

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  • 04/30/2019
  • Proof of Personal Service; Filed by A.C.A LLC (Plaintiff)

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  • 04/30/2019
  • Proof of Personal Service; Filed by A.C.A LLC (Plaintiff)

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  • 04/30/2019
  • Proof of Personal Service; Filed by A.C.A LLC (Plaintiff)

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  • 12/18/2018
  • Other - (notice setting status conference); Filed by A.C.A LLC (Plaintiff)

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  • 12/14/2018
  • at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Status Conference - Held

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  • 12/14/2018
  • Minute Order ((Status Conference Re Lifting the Stay)); Filed by Clerk

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  • 12/07/2018
  • at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion to Compel Further Discovery Responses

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  • 12/03/2018
  • at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion to Compel Further Discovery Responses

    Read MoreRead Less
553 More Docket Entries
  • 01/01/2017
  • at 00:00 AM in Department 47; Unknown Event Type

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

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

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

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

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

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

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  • 12/15/2016
  • SUMMONS

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

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

    Read MoreRead Less

Tentative Rulings

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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