On 09/26/2016 DENLEY INVESTMENT AND MANAGEMENT CO INC filed a Property - Commercial Eviction lawsuit against LOS ANGELES ACADE. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is BARBARA M. SCHEPER. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
BARBARA M. SCHEPER
DENLEY INVESTMENT AND MANAGEMENT COMPANY
LOS ANGELES ACADEMY OF ARTS AND ENTER-
DOES 1 THROUGH 25
SARKISSIAN AREG ALLEN
MARSH KERMIT D. ESQ.
BAKER RYAN G. ESQ.
MINNEY PAUL C.
11/14/2018: Motion re:
4/11/2019: Minute Order
9/26/2016: DECLARATION OF MERDI BOLOUR IN SUPPORT OF COMPLAINT IN UNLAWFUL DETAINER
10/4/2016: PROOF OF SERVICE SUMMONS
10/4/2016: PROOF OF SERVICE OF SUMMONS
11/29/2016: VERIFIED FIRST AMENDED COMPLAINT
1/6/2017: Minute Order
7/28/2017: DECLARATION OF RACHAEL B. TILLMAN IN SUPPORT OF LOS ANGELES ACADEMY OF ARTS AND ENTERPRISE'S MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.7
8/8/2017: DECLARATION OF WILLIAM J. TRINKLE IN SUPPORT OF LOS ANGELES ACADEMY OF ARTS AND ENTERPRISE'S OPPOSITION TO DEFENDANTS' MOTION FOR RECONSIDERATION OF ORDER OVERRULING AND TAKING OFF DEFENDANTS' DEMURRE
8/21/2017: Minute Order
10/5/2017: Proof of Service
10/5/2017: DEFENDANT'S VERIFIED AMENDED ANSWER TO PLAINTIFF'S VERIFIED FIRST AMENDED COMPLAINT
10/5/2017: DECLARATION OF WILLIAM J. TRINKLE IN SUPPORT OF LOS ANGELES ACADEMY OF ARTS AND ENTERPRISE'S MOTION FOR LEAVE TO FILE AMENDED ANSWER
10/26/2017: LOS ANGELES ACADEMY OF ARTS AND ENTERPRISE'S OBJECTIONS DECLARATION OF AREG SARKISSIAN IN SUPPORT OF DENLEY INVESTMENT AND MANAGEMENT COMPANY, INC.'S MOTION FOR STAY PENDING APPEAL, OR IN THE ALTERNAT
10/26/2017: LOS ANGELES ACADEMY OF ARTS AND ENTERPRISE OPPOSITION TO DENLEY INVESTMENT AND MANAGEMENT COMPANY, INC.'S MOTION FOR STAY PENDING APPEA, OR IN THE ALTERNATIVE STAY UNDER CCP 916
at 08:30 AM in Department 30, Barbara M. Scheper, Presiding; Final Status Conference - Not Held - Advanced and VacatedRead MoreRead Less
at 08:30 AM in Department 30, Barbara M. Scheper, Presiding; Non-Jury Trial - Not Held - Advanced and VacatedRead MoreRead Less
at 08:30 AM in Department 30, Barbara M. Scheper, Presiding; Final Status Conference - Not Held - Continued - Court's MotionRead MoreRead Less
at 08:30 AM in Department 30, Barbara M. Scheper, Presiding; Hearing on Motion to Compel (Expert Depositions) - Not Held - Taken Off Calendar by PartyRead MoreRead Less
at 08:30 AM in Department 30, Barbara M. Scheper, Presiding; Hearing on Motion for Judgment on the Pleadings - Not Held - Rescheduled by PartyRead MoreRead Less
Notice (OF ENTRY OF ORDER GRANTING EX PARTE APPLICATION ON JOINT STIPULATION TO STAY CONSOLIDATED ACTION PENDING DECISION ON APPEAL OF PRIOR, RELATED ACTION); Filed by Denley Investment and Management Company, (Plaintiff)Read MoreRead Less
Other - (Returned Mail: Notice of Continuance filed 3/22/2019); Filed by ClerkRead MoreRead Less
at 08:30 AM in Department 30, Barbara M. Scheper, Presiding; Hearing on Ex Parte Application (On Joint Stipulation And [proposed] Order To Stay Consolidated Action Pending Decision On Appeal Of Prior, Related Action) - HeldRead MoreRead Less
Order (Order Granting Stay Of Consolidated Action Pending Decision On Appeal Of Prior, Related Action); Filed by Denley Investment and Management Company, (Plaintiff)Read MoreRead Less
Minute Order ( (Hearing on Ex Parte Application On Joint Stipulation And [pro...)); Filed by ClerkRead MoreRead Less
Receipt; Filed by Los Angeles Academy of Arts and Enter- (Defendant)Read MoreRead Less
Answer; Filed by Los Angeles Academy of Arts and Enter- (Defendant)Read MoreRead Less
NOTICE OF RELATED CASERead MoreRead Less
CIVIL DEPOSITRead MoreRead Less
Notice of Related Case; Filed by Los Angeles Academy of Arts and Enter- (Defendant)Read MoreRead Less
ANSWER-UNLAWFUL DETAINERRead MoreRead Less
Complaint; Filed by Denley Investment and Management Company, (Plaintiff)Read MoreRead Less
COMPLAINT IN UNLAWFUL DETAINER UNLIMITED CIVILRead MoreRead Less
DECLARATION OF MERDI BOLOUR IN SUPPORT OF COMPLAINT IN UNLAWFUL DETAINERRead MoreRead Less
SUMMONS (UNLAWFUL DETAINERRead MoreRead Less
Case Number: BC635207 Hearing Date: December 14, 2020 Dept: 30
Denley Investment and Management Co., Inc. vs. Los Angeles Academy of Arts and Enterprise, et. al., Case No. BC635207
Tentative Ruling re: Plaintiff’s Motion for Judgment on the Pleadings
Plaintiff Denley Investment and Management Company, Inc. and Cross-Defendants 600 South La Fayette Associates, LLC and Mehdi Bolour (collectively, Denley), move for judgment on the pleadings on Los Angeles Academy of Arts and Enterprise’s (LAAAE’s) second cause of action for breach of the settlement agreement in the complaint filed in the consolidated action, Case No. BC651651 (the Consolidated Action). The motion is denied.
A motion for judgment on the pleadings may be made after the time to demur has expired and an answer has been filed. (Code Civ. Proc., § 438, subd. (f).) A motion by a defendant may be made on the grounds that the complaint or cross-complaint “does not state facts sufficient to constitute a cause of action against that defendant.” (Code Civ. Proc., § 438, subd. (c)(B)(ii).) A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. Except as provided by statute, the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.)
Like a general demurrer, “ordinarily, a [motion for judgment on the pleadings] does not lie as to a portion of a cause of action, and if any part of a cause of action is properly pleaded, the [motion] will be overruled.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) In considering a motion for judgment on the pleadings, courts consider whether properly pled factual allegations—assumed to be true and liberally construed—are sufficient to constitute a cause of action. (Stone Street Capital, LLC v. Cal. State Lottery Com’n (2008) 165 Cal.App.4th 109, 116 (Stone Street).)
A motion for judgment on the pleadings lies where the court can take judicial
notice of a prior action between parties as the basis for collateral estoppel (or res judicata) in the present action. (Barker v. Hull (1987) 191 Cal.App.3d 221, 227 (collateral estoppel); Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 185–186 (res judicata).)
In November 2011, LAAAE filed the original complaint in Los Angeles Academy of Arts and Enterprise v. Denley Investment Management Company, Inc. (LAAAE I), Case No. BC473622. (RJN, Ex. 2.) LAAAE asserted that Denley was in breach of the Lease and alleged that there were problems with the heating, ventilating and air conditioning system (the HVAC system), pest infestation, and unauthorized trespass by other tenants.
On November 18, 2013, the parties entered into the Settlement Agreement, which contemplated that Denley would perform certain repairs on the property. LAAAE’s counsel provided notice of the conditional settlement, and the trial court scheduled a March 11, 2014 order to show cause hearing re: dismissal. (RJN, Ex. 4.) That hearing date was continued on several occasions pursuant to stipulations between the parties. (RJN, Exs. 1, 5.)
On May 20, 2015, the Court held a hearing on the order to show cause re: dismissal. LAAAE alleged that Denley had failed to comply with the Settlement Agreement and requested that the case be reset for trial. (RJN, Ex. 12.) On August 19, 2015, Denley filed a motion to enforce the terms of the Settlement Agreement, requesting dismissal of the entire action with prejudice and referral of any remaining disputes to mediation. (RJN, Exs. 16-17.) LAAAE opposed this motion, arguing that Denley had failed to perform its obligations under the Settlement Agreement. On September 8, 2015, the Court denied Denley’s motion to enforce the Settlement Agreement. (RJN, Ex. 18.) The Court ruled that trial would proceed. (RJN, Ex. 18.)
On October 26, 2015, the bench trial in LAAAE I commenced. During the trial, the parties tried the breach of Lease Agreement and other claims asserted in the complaint. At the conclusion of trial, based on its finding that Denley breached the Lease Agreement, the Court awarded LAAAE damages and prejudgment interest. (RJN, Ex. 22.)
On June 14, 2017, Denley filed its notice of appeal. (RJN, Ex. 23.) On April 30, 2019, the Court of Appeal in LAAAE I issued its decision and found that the trial court had not erred in denying the motion to enforce the settlement agreement. (RJN, Ex. 27.) The Court of Appeal affirmed some of the damages awarded by the Court and reversed others. On March 11, 2020, LAAAE filed an acknowledgement of satisfaction of judgment. (RJN, Ex. 29.) On March 20, 2020, this Court entered an Order exonerating a supersedeas bond, finding that the judgment in LAAAE I was fully satisfied. (RJN, Ex. 30.)
LAAAE argues that this is merely a motion for reconsideration disguised as a motion for judgment on the pleadings. The Court disagrees.
The Court overruled Denley’s demurrer to LAAAE’s second cause of action and denied their motion for reconsideration of that ruling. However, this motion is not a demurrer it is a motion for judgment on the pleadings. (See, e.g., Community Memorial Hosp. of San Buena Ventura v. County of Ventura (1996) 50 Cal.App.4th 199, 205 [“[A] motion for summary judgment or adjudication is not a reconsideration of a motion overruling a demurrer. They are two different motions.”].) Furthermore, the demurrer was based on different grounds than the instant motion for judgment on the pleadings. Namely, Denley asserted it had substantially performed under the Settlement Agreement and that LAAAE suffered no damages as a result of Denley’s alleged breach. (See Trinkle Decl., Ex. A.)
In early April 2019, the parties stipulated to a stay of this action pending resolution of the appeal in LAAAE I. On April 30, 2019, the Court of Appeal issued its decision. LAAAE argues that the stipulation bars Denley from brining this motion and that the motion is untimely. The Court disagrees. It is clear that the parties did not intend the stipulation to apply to the present motion. Before the stipulation was entered into Denley discussed bringing this motion and/or requesting LAAAE to dismiss the second cause of action. LAAAE’s counsel suggested it would be premature to dismiss the claim because there was then “no final judgment in the prior action and [our] client is entitled to allege alternative bases for relief.” (Malzahn Decl., ¶ 4, Ex. A.) Moreover, the parties’ stipulation stated that the reason for the stay was to allow the Court of Appeal to rule on “common issues in the Consolidated Action, including . . . determination of the impact, if any, of the earlier settlement between the parties; [and] the enforceability of an earlier settlement between the Parties[.]” (Request for Judicial Notice (RJN), Ex. 34 at p. 2.)
As to the timeliness of the motion, the Court has the discretion to hear a motion for judgment on the pleadings. Code of Civil Procedure section 438 imposes a time limit, “unless the court otherwise permits.” Thus, it is within the Court’s discretion to permit a late motion for judgment on the pleadings. (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1063.)
Denley argues that the second cause of action is barred by res judicata because this Court has already found the Settlement Agreement unenforceable. This argument is based on the final judgment in LAAAE I and three different hearings in this case. Specifically, Denley argues that during the Rule 3.1385 OSC dismissal hearing, the hearing on the motion to enforce settlement, and the October 26, 2015 hearing the Court adjudicated the second cause of action. The Court disagrees.
Res judicata describes the preclusive effect of a final judgment on the merits in a prior suit. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896 (Mycogen Corp.) Res judicata occurs where: (1) the issue decided in the prior adjudication is identical with the one presented in the new action, (2) there was a final judgment on the merits in the prior action and (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication. (In re Marriage of Modnick (1983) 33 Cal.3d 897, 904 fn. 6.)
Similarly, “[a] prior determination by a tribunal will be given collateral estoppel effect when (1) the issue is identical to that decided in a former proceeding; (2) the issue was actually litigated and (3) necessarily decided; (4) the doctrine is asserted against a party to the former action or one who was in privity with such a party; and (5) the former decision is final and was made on the merits.” (Kelly v. Vons Companies, Inc. (1998) 67 Cal.App.4th 1329, 1339.)
The parties entered into the Settlement Agreement on November 18, 2013, two years after LAAAE I commenced. LAAAE initiated the Consolidated Action to separately enforce the breach of the Settlement Agreement, which was proper. “If a party chooses to bypass these summary procedures, the settlement proponent may amend his or her pleadings to assert the settlement, or bring a separate action for breach of contract or equitable relief.” (Irvine v. Regents of University of California (2007) 149 Cal.App.4th 994, 1000 (Irvine).)
As noted above, there is final judgment on the merits in LAAAE I, and a satisfaction of judgment. However, the judgment in LAAAE I arose from the Court’s finding that Denley breached the Lease Agreement between the parties. Neither the trial nor the judgment addressed Denley’s alleged breach of the Settlement Agreement.
Denley argues that the issue of whether Denley breached the Settlement Agreement was litigated and decided by the Court based on a May 20, 2015 OSC. However, “the only decision before the court at a rule 3.1385 hearing is whether to dismiss the case or restore it to the civil active list. By alleging a dispute over whether the parties reached a binding settlement, plaintiff demonstrated good cause to restore the case to the civil active list.” (Irvine, supra, 149 Cal.App.4th at pp. 1001-1002.) Here the Court merely determined that a dispute existed and restored the case to the active civil list.
In August and September 2015, Denley sought to enforce the Settlement Agreement first by an ex parte application and then by noticed motion to enforce the Settlement Agreement seeking dismissal of the LAAAE I lawsuit. (RJN, Exs. 15-18.)
The only issue presented on the motion was whether the lawsuit should be dismissed because Denley had performed its settlement obligations. (RJN, Ex. 16.) In opposing the motion, LAAAE took the same position it takes in this lawsuit that Denley had breached the settlement agreement and Denley had no right to require a dismissal of the LAAAE I lawsuit. (RJN, Ex. 17.) LAAAE never repudiated the Settlement Agreement or sought its rescission. Instead, LAAAE argued that Denley had no right to enforce it because of Denley’s breach. On Denley’s motion to enforce the Settlement Agreement, LAAAE’s damages claims were not at issue and were not adjudicated on the motion. The issue of LAAAE’s claims for the breach of the Settlement Agreement were not adjudicated in the motion to enforce the settlement.
At the hearing on October 26, 2015, the Court specifically stated that the post-settlement issues would be handled separately from the pre-settlement issues, and limited LAAAE’s evidence to the pre-settlement issues. The Court stated that the limitation would be “without prejudice to [LAAAE] pursuing whatever rights [LAAAE] may have post settlement.” (RJN, Ex. 19 at pp. 16:22–17:22.) The Court did not adjudicate the issue of whether LAAAE could seek damages based on Denley’s breach of the Settlement Agreement. Instead, the Court expressly reserved the rights of LAAAE to subsequently bring claims for the post-settlement time period.
Finally, the Court does not find that judicial estoppel bars LAAAE’s second cause of action.
Judicial estoppel prohibits a party from taking an inconsistent position in the same or different judicial proceedings from an original position on which the party was successful. (See Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.)
As discussed above, LAAAE never sought to rescind the Settlement Agreement, and instead argued that Denley could not seek to enforce it against LAAAE because of Denley’s breach. (RJN, Ex. 17.) LAAAE I tried only the damages and misconduct of Defendants which occurred up to and including November 18, 2013. LAAAE I’s determinations are not inconsistent with this lawsuit for post-settlement damages. LAAAE takes the same position it took in LAAAE I that Denley has both breached the Lease Agreement causing damages and then breached the Settlement Agreement causing damages.
Case Number: BC635207 Hearing Date: July 01, 2020 Dept: 30
Denley Investment and Management Co. Inc. v. Los Angeles Academy of Arts and Enterprise, et. al., Case No. BC635207
Tentative Ruling re: Plaintiff’s Motion to Compel Compliance with Requests for Production of Documents; Request for Sanctions
Plaintiff moves to compel Defendant to comply with Plaintiff’s first set of requests for production of documents. In particular, Plaintiff seeks all responsive documents to Requests for Production No. 1, 5, 7, and 9.
Alternatively, Plaintiff seeks LAAAE’s compliance with Code of Civil Procedure section 2031.250 in the form of a verification or other statement under oath that LAAAE’s response to Plaintiff’s Requests for Production is complete.
The motion is denied.
A motion to compel compliance pursuant to Code of Civil Procedure section 2031.320 does not have a 45-day time limit, nor does it contain a meet and confer requirement or a good cause requirement. (Code Civ. Proc., § 2031.320.) A motion to compel compliance does not require a separate statement. (Cal. Rules of Court, rule 3.1345.) However, such a motion is only proper where the responding party represented in its response that it would comply with the request for production and subsequently failed to do so. (Code Civ. Proc., § 2031.320, subd. (a).) “If a party filing a response to a demand for inspection, copying, testing, or sampling [… and] thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., § 2031.320.)
A proper response to a request for production is “[a] statement that the party will comply with the particular demand for inspection, copying, testing, or sampling” by the date set forth in Code of Civil Procedure section 2031.030(c)(2)(within a reasonable time, at least 30 days after service of the demand. (Code Civ. Proc., § 2031.210, subd. (a)(1).) Thus, the only required showing is that the responding party failed to comply as agreed. (Standon Co., Inc. v. Superior Court (1990) 225 Cal.App.3d 898, 903 (Standon).)
A party responding to a request for documents must serve verified responses, and “an unverified response is tantamount to no response at all.” (Allen–Pacific, Ltd. v. Superior Court (1997) 57 Cal.App.4th 1546.)
Plaintiff is seeking further responses to its requests for production
of documents. Specifically, Plaintiff seeks all responsive documents to Requests for Production Nos. 1, 5, 7, and 9 based on statements by Defendant’s counsel that further supplemental productions may be forthcoming.
On December 28, 2018, Plaintiff served a Request for Production, Set One, on Defendant LAAAE with the permitted 10 requests. (Trinkle Decl. ¶ 7; Ebert Decl. ¶ 5; Exhibit B.) On February 25, 2019, Plaintiff received Defendant’s production of documents in response to the Requests. (Declaration of Ryan G. Baker (Baker Decl.) ¶ 5.) In response to Request Nos. 1, 5, 7 and 9, Defendant agreed to produce “nonprivileged responsive documents in its possession, custody or control[.]”
Then, on March 22, 2019, Defendant made a supplemental document production. (Barker Decl., ¶ 6.) Counsel for Defendant represented in an email to Plaintiff’s counsel that “[w]e continue to correspond with our client on possible further supplemental productions and will aim to get you any further documents as received” and “[i]n terms of further productions, I cannot say that there will or will not be more. As I stated, we are in the process of conferring with our client.” (Baker Decl., ¶ 6.)
On April 4, 2019, counsel for Plaintiff emailed opposing counsel to confirm whether Defendant intended to produce additional documents or whether Defendant’s document production was complete. (Baker Decl., ¶ 9.) Mr. Baker followed up again in a subsequent email on April 5, 2019. (Baker Decl., ¶ 9.) After the stay was lifted in this case, the parties met and conferred in October 2019 about several outstanding discovery disputes. (Baker Decl., ¶ 10.)
On February 10, 2020, the parties participated in an IDC before the Court. (Baker Decl., ¶ 11.) The Court suggested that Defendant simply verify the completeness of its document production. After the IDC, when asked by Plaintiff’s counsel to do that, Defendant refused to provide any verification or sworn statement. (Baker Decl., ¶ 12.)
In response to each of the requests at issue here, Defendant asserted the same objection, followed by the following: “Subject to and without waiving the foregoing objections, Responding Party will comply with the request and produce nonprivileged responsive documents in its possession, custody, or control.” Thus, Defendant has agreed in its response to produce documents that are responsive to the requests and nonprivileged.
Defendant argues that it produced verified responses and objections on February 22, 2019 with 18,154 pages of documents. Then, on March 22, 2019, Defendant produced 2,788 additional pages of documents. (Opposition, at p. 5:8-9.) Defendant has not failed to produce documents it agreed to produce in response to any request. Defendant argues that this motion appears to be more akin to a motion to compel further responses than a motion to compel compliance. The Court agrees.
The evidence shows that Defendant has already produced documents in accordance with its statement that it will produce documents responsive to the request. Whether or not Plaintiff is satisfied with the completeness of the document production is not properly brought on a motion to compel compliance.
It appears to the Court that the only issue is whether the responses have been verified.
On February 22, 2019, David Calvo, the principal of Defendant, signed a verification of the responses on behalf of Defendant. This verification was served on Plaintiff on February 22, 2019, with Defendant’s responses. With these responses, a production of documents, Bates Nos. LAAAE-000001 – LAAAE-018154, was included on a compact disk. (Trinkle Decl. ¶ 10, Exhibit E; Ebert Decl. ¶ 8, Exhibit C.) Therefore, there is evidence that the responses were verified and timely served.
Whether or not Plaintiff is satisfied with the response is not the subject of this
motion. Plaintiff would need to bring a motion to compel further responses, which is appropriate when the responding party has made a response, but the demanding party deems the response unsatisfactory. (Code Civ. Proc., § 2031.310(c).) However, the 45-day jurisdictional limit has already passed, and so the Court may not consider a motion to compel further responses. (Code Civ. Proc., § 2031.310(c).)
In its reply brief, Plaintiff argues that by seeking additional documents, Plaintiff is merely asking for the compliance with the promise that Defendant made in the first place, and that the additional documents, whether they exist or not, should be produced in compliance with the Defendant’s promise to productive responsive documents. However, nothing in Code of Civil Procedure section 2031.320(a) states that the party seeking discovery can make a motion to compel compliance after responsive documents have been produced. Nor does the Code allow the propounding party to seeking documents on a continuous basis until they are satisfied with the production. All that is required is that the responding party answer whether they will produce documents or object, and thereafter produce documents in accordance with that promise.
Here, Defendant has produced responsive documents in accordance with its promise to produce documents and has verified its responses.
Plaintiff seeks sanctions in the amount of $13,653.50. The request is denied.
The request is procedurally improper since Plaintiff did not put the request for sanctions in the notice of the motion, nor did Plaintiff specify whether the sanctions should be awarded against the attorney or the Defendant or both. Regardless, as the Court has ruled against Plaintiff on the merits, sanctions are not appropriate.
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