This case was last updated from Los Angeles County Superior Courts on 03/12/2020 at 18:01:22 (UTC).

LEE SMITH ET AL VS TAKUI AYVAZYAN ET AL

Case Summary

On 05/23/2016 LEE SMITH filed a Personal Injury - Other Personal Injury lawsuit against TAKUI AYVAZYAN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1464

  • Filing Date:

    05/23/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

 

Party Details

Petitioners and Plaintiffs

SMITH LAVELL IV

SMITH LEE

CUNNINGHAM ANNE

JOHNSON OMARI

Defendants, Respondents and Cross Defendants

GOUGH LEON

AYVAZYAN ARMEN

AYAVAZYAN TAKUI

GOLDHEART PRODUCTION INC.

MONALIZZA RESTAURANT & BANQUET

LONG BRIAN KIRK

Respondents, Defendants and Cross Plaintiffs

AYAVAZYAN TAKUI

MONALIZZA RESTAURANT & BANQUET

Minors

SMITH LEVI

SMITH LORIELLE

Guardian Ad Litem

LOCKHART COLENE

Attorney/Law Firm Details

Petitioner, Plaintiff and Minor Attorneys

LEGAL OFFICES OF DAVID GREY THE

MOLCHAN JEFFREY L.

HUTTON REBECCA SARA

Defendant Attorneys

WILLIAMS LAW GROUP THE

GREEN BJORN CLARK

WILLIAMS ANDREW

 

Court Documents

DEFENDANTS' ANSWER TO PLAINTIFF CLARENCE MORGAN'S COMPLAINT; DEMAND FOR JURY TRIAL

12/19/2017: DEFENDANTS' ANSWER TO PLAINTIFF CLARENCE MORGAN'S COMPLAINT; DEMAND FOR JURY TRIAL

NOTICE OF CHANGE OF ADDRESS

12/20/2017: NOTICE OF CHANGE OF ADDRESS

PLAINTIFF, CLARENCE MORGAN'S, PROOF OF SERVICE OF SUMMONS ON DEFENDANT, ARMEN AYVAZYAN

1/10/2018: PLAINTIFF, CLARENCE MORGAN'S, PROOF OF SERVICE OF SUMMONS ON DEFENDANT, ARMEN AYVAZYAN

PLAINTIFF, CLARENCE MORGAN'S, PROOF OF SERVICE OF SUMMONS ON DEFENDANT, MONALIZZA RESTAURANT & BANQUET

1/10/2018: PLAINTIFF, CLARENCE MORGAN'S, PROOF OF SERVICE OF SUMMONS ON DEFENDANT, MONALIZZA RESTAURANT & BANQUET

PLAINTIFF, CLARENCE MORGAN'S, PROOF OF SERVICE OF SUMMONS ON DEFENDANT, BRIAN KIRK LONG

1/10/2018: PLAINTIFF, CLARENCE MORGAN'S, PROOF OF SERVICE OF SUMMONS ON DEFENDANT, BRIAN KIRK LONG

PLAINTIFF, CLARENCE MORGAN'S, PROOF OF SERVICE OF SUMMONS ON DEFENDANT, TAKUI AYVAZYAN

1/10/2018: PLAINTIFF, CLARENCE MORGAN'S, PROOF OF SERVICE OF SUMMONS ON DEFENDANT, TAKUI AYVAZYAN

PLAINTIFF, CLARENCE MORGAN'S, PROOF OF SERVICE OF SUMMONS ON - DEFENDANT, GOLDHEART - PRODUCTIONS, INC.

1/10/2018: PLAINTIFF, CLARENCE MORGAN'S, PROOF OF SERVICE OF SUMMONS ON - DEFENDANT, GOLDHEART - PRODUCTIONS, INC.

PLAINTIFF, CLARENCE MORGAN'S, PROOF OF SERVICE OF SUMMONS ON - DEFENDANT, LEON GOUGH -

1/10/2018: PLAINTIFF, CLARENCE MORGAN'S, PROOF OF SERVICE OF SUMMONS ON - DEFENDANT, LEON GOUGH -

REQUEST FOR ENTRY OF DEFAULT

1/19/2018: REQUEST FOR ENTRY OF DEFAULT

REQUEST FOR ENTRY OF DEFAULT

2/13/2018: REQUEST FOR ENTRY OF DEFAULT

PLAINTIFF, CLARENCE MORGAN'S, STATUS REPORT AS TO THE SERVICE OF PROCESS ON THE DEFENDANTS

3/5/2018: PLAINTIFF, CLARENCE MORGAN'S, STATUS REPORT AS TO THE SERVICE OF PROCESS ON THE DEFENDANTS

Minute Order

3/8/2018: Minute Order

NOTICE OF RULINGS RE FURTHER STATUS CONFERENCE/OSC RE FAILURE TO FILE PROOF OF SERVICE/STATUS OF DEFAULTED PARTIES

3/9/2018: NOTICE OF RULINGS RE FURTHER STATUS CONFERENCE/OSC RE FAILURE TO FILE PROOF OF SERVICE/STATUS OF DEFAULTED PARTIES

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

3/14/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

STATEMENT OF DAMAGES

4/25/2018: STATEMENT OF DAMAGES

GOLDHEART PRODUCTIONS, INC?S NOTICE OF DEMURRER AND DEMURRER TO DEFENDANTS/CROSS- COMPLAINANTS TAKUI AYVAZYAN AND MONALIZZA RESTAURANT? S CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARA

5/3/2018: GOLDHEART PRODUCTIONS, INC?S NOTICE OF DEMURRER AND DEMURRER TO DEFENDANTS/CROSS- COMPLAINANTS TAKUI AYVAZYAN AND MONALIZZA RESTAURANT? S CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARA

LEON GOUGH'S NOTICE OF DEMURRER AND DEMURRER TO DEFENDANTS/CROSS-COMPLAINANTS TAKUI AYVAZYAN AND MONALIZZA RESTAURANT'S CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ANDREW WIL

5/3/2018: LEON GOUGH'S NOTICE OF DEMURRER AND DEMURRER TO DEFENDANTS/CROSS-COMPLAINANTS TAKUI AYVAZYAN AND MONALIZZA RESTAURANT'S CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ANDREW WIL

LEON GOUGH'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF, CLARENCE MORGAN'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ANDREW WILLIAMS ESQ

5/3/2018: LEON GOUGH'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF, CLARENCE MORGAN'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ANDREW WILLIAMS ESQ

92 More Documents Available

 

Docket Entries

  • 08/18/2020
  • Hearing08/18/2020 at 10:00 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 08/11/2020
  • Hearing08/11/2020 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 05/06/2020
  • Hearing05/06/2020 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 03/02/2020
  • Docketat 08:30 AM in Department 37; Court Order

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  • 03/02/2020
  • DocketMinute Order ( (In Chambers Court Order)); Filed by Clerk

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  • 03/02/2020
  • DocketCertificate of Mailing for ((In Chambers Court Order) of 03/02/2020); Filed by Clerk

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  • 02/13/2020
  • DocketSeparate Statement; Filed by Takui Ayavazyan (Defendant); Armen Ayvazyan (Defendant); Monalizza Restaurant & Banquet (Defendant)

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  • 02/13/2020
  • DocketNotice of Ruling; Filed by Takui Ayavazyan (Defendant); Monalizza Restaurant & Banquet (Defendant)

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  • 02/13/2020
  • DocketMotion for Summary Judgment; Filed by Takui Ayavazyan (Defendant); Armen Ayvazyan (Defendant); Monalizza Restaurant & Banquet (Defendant)

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  • 02/11/2020
  • Docketat 08:30 AM in Department 37; Hearing on Motion to Deem Request for Admissions Admitted - Held

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272 More Docket Entries
  • 06/15/2016
  • DocketSUMMONS

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  • 06/01/2016
  • DocketOrd Apptng Guardian Ad Litem; Filed by Plaintiff/Petitioner

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  • 06/01/2016
  • DocketOrd Apptng Guardian Ad Litem; Filed by Plaintiff/Petitioner

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  • 05/23/2016
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 05/23/2016
  • DocketComplaint; Filed by Anne Cunningham (Plaintiff); Lavell Smith, IV (Plaintiff); Lee Smith (Plaintiff)

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  • 05/23/2016
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL

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  • 05/23/2016
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL

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  • 05/23/2016
  • DocketCOMPLAINT FOR WRONGFUL DEATH AND DAMAGES DEMAND FOR JURY TRIAL

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  • 05/23/2016
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 03/17/2016
  • DocketORDER TRANSFERRING COMPLICATED PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT

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Tentative Rulings

Case Number: BC621464    Hearing Date: August 11, 2020    Dept: 37

HEARING DATE: August 11, 2020

CASE NUMBER: BC621464

CASE NAME: Lee Smith, et al. v. Takui Ayvazyan, et al.

TRIAL DATE: April 20, 2021

PROOF OF SERVICE: OK

MOTION: Motion for Summary Judgment

MOVING PARTIES: Defendants, Armen Ayvazyan, Takui Ayvazyan and Monalizza Restaurant

OPPOSING PARTY: Plaintiffs, Lee Smith, Anne Cunningham, Lavell Smith IV and minors Lorielle Smith and Levi Smith, by and through their Guardian Ad Litem, Colene Lockhart, survivors of Lavell Lee Smith, deceased

OPPOSITION: None, as of August 6, 2020

REPLY: No opposition filed.

TENTATIVE: Defendants Armen Ayvazyan, Takui Ayvazyan and Monalizza Restaurant’s Motion for Summary Judgment as to the action brought by Plaintiffs, Lee Smith, Anne Cunningham, Lavell Smith IV and minors Lorielle Smith and Levi Smith, by and through their Guardian ad Litem, Colene Lockhard is GRANTED. Monalizza Defendants are to give notice.

MOTION: Motion for Summary Judgment

MOVING PARTIES: Defendants, Armen Ayvazyan, Takui Ayvazyan and Monalizza Restaurant

OPPOSING PARTY: Plaintiffs, Lee Smith and Anne Cunningham

OPPOSITION: None, as of August 6, 2020

REPLY: No opposition filed.

TENTATIVE: Defendants Armen Ayvazyan, Takui Ayvazyan and Monalizza Restaurant’s Motion for Summary Judgment as to Plaintiffs Lee Smith and Anne Cunningham’s cause of action for wrongful death is GRANTED. Monalizza Defendants are to give notice and prepare a proposed judgment.

Background

This action arises in connection with a shooting that allegedly occurred at the real property known as Monalizza Restaurant & Banquet (the “Property”). Defendant Brian Kirk Long (“Long”) and Doe Defendants allegedly brandished and used a firearm to inflict harm on Plaintiffs Clarence Morgan (“Morgan”) and Omari Johnson (“Johnson”) and to kill Decedent Lavell Lee Smith (“Smith”) (the “Incident”). Defendants Takui Ayvazyan and Armen Ayvazyan and Monalizza Restaurant (“Monalizza,” erroneously sued as Monalizza Restaurant & Banquet) (collectively the Monalizza Defendants”) are alleged to be the owners, operators and managers of the Property. Defendant Goldheart Productions, Inc. (“Goldheart”) and Leon Gough (“Gough”) (collectively the Goldheart Defendants”) allegedly rented Monalizza for a party on June 29, 2014. Plaintiffs allege that the Goldheart Defendants and the Monalizza Defendants negligently and carelessly failed to provide sufficient security to protect Plaintiffs.

Three separate lawsuits were commenced against the Defendants in this court in Case Nos. BC621464, BC624882 and BC625257. These cases have been consolidated in lead Case No. BC621464.

Plaintiffs Lee Smith, Anne Cunningham, Lavell Smith IV and minors Lorielle Smith and Levi Smith (by and through their guardian ad litem Colene Lockhart) (collectively the “Smith Plaintiffs”) filed a Complaint in connection with the shooting of Decedent Smith on May 23, 2016 and their First Amended Complaint (“Smith FAC”) on June 21, 2018. In the Smith FAC, the Smiths allege one cause of action for general negligence against all Defendants.

Plaintiff Johnson filed his Compliant on June 27, 2016 and his First Amended Complaint (“Johnson FAC”) on June 12, 2018. In the Johnson FAC, Plaintiff Johnson alleges three causes of action against the Monalizza Defendants and the Goldheart Defendants for: (1) negligence; (2) premises liability and (3) negligent hiring, retention and supervision. Johnson additionally alleges two causes of action against Defendant Kirk Long (“Long”) for (4) assault and (5) battery.

Plaintiff Morgan filed his Complaint on June 29, 2016 and filed a First Amended Complaint (the “Morgan FAC”) on November 13, 2017. In the Morgan FAC, Plaintiff Morgan alleges three causes of action against the Monalizza Defendants, the Goldheart Defendants, and Defendant Long for: (1) general negligence; (2) premises liability and (3) general negligence – negligent hiring, training, supervision and/or retention. In addition, Morgan additionally alleges five other causes of action against Defendant Long for; (4) general negligence; (5) assault; (6) battery; (7) intentional infliction of emotional distress and (8) negligent infliction of emotional distress.

The Monalizza Defendants have settled with Plaintiffs Johnson and Morgan, so the only active claims against them are in the Smith FAC.

Cross-Complainants Takui Ayvazyan, Armen Ayvazyan and Monalizza filed a cross-complaint on September 7, 2016 and the Monalizza Defendants filed a First Amended Cross-Complaint on August 28, 2018, alleging seven causes of action for: (1) breach of written contract against Goldheart; (2) express indemnity against Goldheart; (3) implied indemnity against Gough, Goldheart and Long; (4) total equitable indemnity against Gough, Goldheart and Long; (5) partial equitable indemnity against Gough, Goldheart and Long; (6) declaratory relief against Goldheart and (7) negligence against Long.

The Monalizza Defendants now move for summary judgment on the grounds there is no triable issues as to any material fact regarding all Plaintiffs’ causes of action. The Monalizza Defendants’ notice of motion and separate statement do not identify any specific issues for summary adjudication.

On April 15, 2020, the Monalizza Defendants filed an additional motion for summary judgment only as to Plaintiff Lee Smith and Anne Cunningham’s cause of action for wrongful death. The court will address each motion in turn.

No opposition has been filed to either motion. As such, the court is inclined to grant both motions if the Monalizza Defendants can demonstrate that they have met their burden as to each motion.

MOTION FOR SUMMARY JUDGMENT AS TO ALL PLAINTIFFS

Factual Background

The Goldheart Defendants rented the Property from owners, Armen Ayvazyan and Takui Ayvazyan to host an after-hours party associated with the BET Awards on June 29, 2014. (the “Event”) (Separate statement of Undisputed Material Fact (“DSS”), ¶ 1; Declaration of Dalen M. Saludes (“Saludes Decl.”), Exhibit A (Armen Ayvazyan Depo) at p. 32:19-22; Saludes Decl., Exhibit G (Leon Gough Decl.), ¶ 3.) The Property was a banquet hall rented out for events, located at 1161 N. Vermont Avenue, East Hollywood. (DSS ¶ 2; Saludes Decl., Exhibit A at pp. 16:6-25, 17:20-25; Saludes Decl., Exhibit B (Takui Ayvazyan Depo) at pp. 24:21-25:5.) Armen Ayvazyan and Takui Ayvazyan purchased the Property in April 2013 and were the owners on June 29, 2014. (Id.)

Pursuant to prior rental agreements and dealings, Armen Ayvazyan and Takui Ayvazyan rented the Property to Goldheart on June 29, 2014 from approximately 2:00 am to 5:00 a.m. (the “Rental Agreement”) (DSS ¶¶ 3-4; Saludes Decl., Exhibit A at pp. 29:9-21, 34:15-35:2; Saludes Decl., Exhibit B at pp. 44:18-45:8.) The Rental Agreement for June 29, 2014 provided that the Property was to be rented for a set fee. (DSS ¶ 6; Saludes Decl., Exhibit A at pp. 18:19-19:16; Saludes Decl., Exhibit B. at pp. 52:17-53:25.) Further, and pursuant to prior rental agreements, Goldheart was required to hire security guards for all events hosted at the Property. (DSS ¶ 5; Saludes Decl., Exhibit A at p. 19:4-24; Saludes Decl., Exhibit B at p. 29:10-19; Saludes Decl., Exhibit G at ¶ 4.)

Goldheart employed 15 to 20 security guards on the night of the Event in addition to two off duty police officers. (DSS ¶ 7; Saludes Decl., Exhibit F (Declaration of Parunak Boyajyan), ¶ 6; Saludes Decl., Exhibit G, ¶ 5.) These security guards patted down guests upon entry, used metal detector wands, and checked the handbags of female guests for weapons. (DSS ¶ 8; Saludes Decl., Exhibit C (Clarence Morgan Depo) at pp. 25:10-24, 28:25-29:4; Saludes Decl., Exhibit F, ¶ 6.)

Smith and Long were guests at the Event for some time prior to the Incident. (DSS ¶ 12; Saludes Decl., Exhibit E (Trial Transcript of May 12, 2016 of The People of the State of California v. Brian Kirk Long (Case No. BA431010-01) at pp. 645:25-646:8.)

At approximately 5:00 a.m. on June 29, 2014, Smith and Long engaged in a quick verbal exchange. (DSS ¶ 13; Saludes Decl., Exhibit E at pp. 649:7-18, 742:25-743:1.) After the exchange, Long pulled out a handgun and shot at Smith six to ten times. (DSS ¶ 14; Saludes Decl., Exhibit C at p. 42:4-5; Saludes Decl., Exhibit E at pp. 649:7-653:2, 741:9-743:23.) Smith was killed as a result of his gunshot wounds. (DSS ¶ 15.)

From the time Armen Ayvazyan and Takui Ayvazyan purchased the Property to June 29, 2014, they were unaware of any murders or aggravated assaults that had occurred on the Property. (DSS ¶¶ 18-19; Saludes Decl., Exhibit A at p. 24:8-26:13; Saludes Decl., Exhibit B at p. 35:5-12.) Further, Los Angeles Police Department records from 2012 to June 28, 2014 demonstrate that there had been no 911 calls or incident reports concerning violent crimes at the Property. (DSS ¶ 20; Saludes Decl., Exhibit H (Los Angeles Police Department Call Records).)

Discussion

  1. Legal Standard 

    “The purpose of the law of summary judgment 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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  Pursuant to Code of Civil Procedure, section 437c, subdivision (a):

    A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.  The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct….  The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.  The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

    (Code Civ. Proc., § 437c, subd. (a).)  A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (Code Civ. Proc., § 437c, subd. (c).)  

    “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.  The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.  Each of the material facts stated shall be followed by a reference to the supporting evidence.  The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.”  (Code Civ. Proc., § 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)  

    In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).)  Pursuant to Code Civ. Proc., § 437c, subdivision (p)(2):

    A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.  Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.  The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

    (Code Civ. Proc., § 437c, subd. (p)(2).)  The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.”  (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].)  A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475).

  2. Analysis

  1. Foreseeability of Third-Party Violence

California law requires landowners to maintain land in their possession and control in a reasonably safe condition.  (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.), disapproved on other grounds in Reid v. Google, Inc (2010) 50 Cal.4th 512, 526.)  The existence of a legal duty is a question for the court to determine and foreseeability is a “crucial factor” in determining the existence and scope of a legal duty.  (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237 (Delgado), citing Ann M., 666 Cal.4th at pp. 674, 676.)  “In the case of a landlord, this general duty of maintenance, which is owed to tenants and patrons, has been held to include the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.”  (Ann M., 666 Cal.4th at p. 674.)  

In Ann M., the Supreme Court recognized that “the scope of the duty is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed.”  (Id. at p. 678.)  Specifically, California courts have held that an “extraordinarily high degree of foreseeability” is required to impose a duty on a landowner to take affirmative action against third party criminal conduct. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 532.)

Monalizza Defendants first contend that summary judgment must be granted because they had no role in the Event other than leasing the Property to Goldheart as a landowner. (Motion, 4-9.) Further, Monalizza Defendants contend that because there were no prior similar violent crimes at or near the Property, this means that they Monalizza Defendants had no duty to prevent the Incident. (Id.)

Monalizza Defendants cite to Lopez v. McDonald’s Corporation (1987) 193 Cal.App.3d 495 (Lopez) and Thai v. Stang (1989) 214 Cal.App.3d 1264 (Thai) for the proposition that a defendant landowner had no duty to prevent violent crime by a third party where there was no evidence of prior violent crimes that would have put the landowner on notice.

First, Lopez arose in connection with an incident where a man entered a McDonald’s restaurant and began indiscriminately shooting at patrons and employees, killing 21 people and wounding 11 others. (Lopez, supra 193 Cal.App.3d at 500-501.) Survivors and family members of victims in this shooting brought an action against McDonald’s, alleging that McDonald’s failed to provide adequate safety devices or security personnel to protect customers from known risks. (Id. at 501.) Specifically, Plaintiffs alleged that McDonald’s knew that the store where the shooting occurred was located in a high crime areas and that the McDonald’s in question was also the location of other felony crimes in the three years prior to the shooting. (Id. at 501-502) McDonald’s moved for summary judgment on the grounds that the shooting was not foreseeable and the Court of Appeal upheld summary judgment in its favor. (Id. at 509.) In coming to this conclusion, the Lopez court specifically held that “the general character of McDonald’s nonfeasance did not facilitate” the shooting because “the risk of a maniacal, mass murderous assault” is remote. (Id. at 509-510.)

Second, Thai arose in connection with a drive-by shooting outside of a roller skating rink. (Thai, supra, 214 Cal.App.3d at 1268.) Plaintiff was standing outside of the entrance to the rink and was struck twice with bullets, resulting in severe personal injuries. (Id.) Plaintiff named the rink’s owner as a defendant and asserted a cause of action for premises liability against him, alleging that he failed to hire and train “adequate security protection” for his customers despite having knowledge of “numerous incidents of violence.” (Id.) The Court of Appeal upheld summary judgment in favor of the rink owner, finding that Plaintiff failed to present admissible evidence that would have put the rink owner on notice of a possible daytime drive-by shooting at his rink. (Id. at 1271-1273.) Further, the Thai court noted that there was “not a close causal nexus” between the rink owner’s nonfeasance and Plaintiff’s injuries, “given the random nature of drive-by shootings.” (Id. at 1273.)

Here, Monalizza Defendants have presented evidence that Goldheart rented the Property for purposes of the Event. Further, it is undisputed that Goldheart and not Monalizza hired the security guards and off-duty police officers. Moreover, Plaintiffs do not oppose the motion and as such do not refute Monalizza Defendants’ contention that no similar violent crimes have occurred on or near the Property. Accordingly, given the clear guidance from Ann M., Lopez, Thai and other cases, the court finds that the Incident was not reasonably foreseeable such that Monalizza Defendants had any affirmative duty to prevent its occurrence.

Accordingly, Monalizza Defendants’ motion is granted.

  1. Causation of Plaintiff’s Injuries

Having granted summary judgment based on the above reasons, the court does not reach Monalizza Defendants’ remaining arguments.

Conclusion

Monalizza Defendants’ Motion for Summary Judgment as to the action brought by Plaintiffs, Lee Smith, Anne Cunningham, Lavell Smith IV and minors Lorielle Smith and Levi Smith, by and through their Guardian ad Litem, Colene Lockhart is GRANTED. Monalizza Defendants are to give notice.

MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFFS LEE SMITH AND ANNE CUNNINGHAM

Factual Background

The factual background underlying the instant motion is largely undisputed.

Plaintiff’s wrongful death action arises in connection with a June 29, 2014 shooting that occurred at 1161 Vermont Avenue, Los Angeles, California, in which Lavelle Lee Smith (“Decedent”) sustained fatal injuries. (Separate Statement of Undisputed Material Facts (“DSS”), ¶ 1) Plaintiffs Lee Smith and Anne Cunningham are Decedent’s parents. (DSS ¶ 2.) Additionally, Decedent’s children, Lavell Smith, Lorielle Smith and Levi Smith are also named as Plaintiffs. (DSS ¶6.) Plaintiffs allege one cause of action for general negligence. (Request for Judicial Notice, Exhibit A (FAC)).

On February 11, 2020, the court granted Monalizza Defendants’ Motion to Deem Requests for Admissions, Set One admitted as to all Plaintiffs. (Request for Judicial Notice, Exhibit C.) As such, Plaintiffs Lee Smith and Anne Cunningham were deemed to have admitted that they did not depend upon Decedent for financial support within the meaning of California Code of Civil Procedure, section 377.60. (DSS ¶ 4; Request for Judicial Notice, Exhibit B (Motion to Deem Admitted), Exhibit A thereto (Request for Admissions), number 1.)

Discussion

  1. Legal Standard 

    “The purpose of the law of summary judgment 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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  Pursuant to Code of Civil Procedure, section 437c, subdivision (a):

    A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.  The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct….  The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.  The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

    (Code Civ. Proc., § 437c, subd. (a).)  A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (Code Civ. Proc., § 437c, subd. (c).)  

    “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.  The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.  Each of the material facts stated shall be followed by a reference to the supporting evidence.  The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.”  (Code Civ. Proc., § 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)  

    In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).)  Pursuant to Code Civ. Proc., § 437c, subdivision (p)(2):

    A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.  Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.  The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

    (Code Civ. Proc., § 437c, subd. (p)(2).)  The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.”  (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].)  A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475).

  2. Analysis

The Monalizza Defendants second motion for summary judgment is directed to only the claims brought by two of the Plaintiffs and is largely unnecessary given the above grant of summary judgment against all Plaintiffs. In the event that summary judgment is overturned, this motion would still give summary judgment against Lee Smith and Anne Cunningham on separate grounds.

“In California, an action for wrongful death is governed solely by statute, and the right to bring such an action is limited to those persons identified therein.” (Jackson v. Fitzgibbons (2005) 127 Cal.App.4th 329, 334.) Code of Civil Procedure, section 377.60 provides that standing for a wrongful death cause of action is determined in part by the following order:

  1. “The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who were entitled to the property of the decedent by intestate succession.

  2. Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren or parents.”

(Code Civ. Proc. § 377.60, subd. (a)-(b).) Further Probate Code section 6402, subdivision (b) provides that a decedent’s parent or parents are entitled to inherit his estate only if the decedent did not have surviving issue.

A wrongful death plaintiff is required to plead and prove standing to bring an action for wrongful death. (Armijo v. Miles (2005) 127 Cal.App.4th 1405, 1421; Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 789.)

Monalizza Defendants contend that they are entitled to summary judgment as to Lee Smith and Anne Cunningham’s negligence cause of action to recover for wrongful death because Decedent had surviving children, all of whom were named as Plaintiffs. (Motion, 4-5.) Monalizza Defendants further contend that because Lee Smith and Anne Cunningham admit they were not dependent on Decedent, they do not have standing to bring a wrongful death cause of action under Code of Civil Procedure section 377.60, subdivision (b). (Id.) Lee Smith and Anne Cunningham have not filed an opposition and do not refute Monalizza Defendants’ claims. As such, the court agrees with Monalizza Defendants and finds that no triable issue of material fact exists with regard to their wrongful death claims against Monalizza Defendants.

For these reasons, Monalizza Defendants’ Motion is GRANTED.

Conclusion

Monaliza Defendants’ motion for summary judgment as to Plaintiffs Lee Smith and Anne Cunningham’s cause of action is GRANTED. Monalizza Defendants are to give notice.

Case Number: BC621464    Hearing Date: February 11, 2020    Dept: 37

HEARING DATE: February 11, 2020

CASE NUMBER: BC621464

CASE NAME: Lee Smith, et al. v. Takui Ayvazyan, et al.

MOVING PARTIES: Defendants, Takui Ayvazyan and Monalizza Restaurant

OPPOSING PARTY: Plaintiffs, Lee Smith and Anne Cunningham

TRIAL DATE: August 18, 2020

PROOF OF SERVICE: OK

MOTION: Motion to Deem Request for Admissions, Set Ones Admitted

OPPOSITION: None, as of February 6, 2020

REPLY: N/A

RECOMMENDATION: Monalizza Defendants’ motion to deem Requests for Admission, Sets One admitted as to Lee Smith and Anne Cunningham is GRANTED. Moving parties’ counsel to give notice.

Monalizza Defendants’ request for sanctions is denied.

Background

This action arises in connection with a shooting that allegedly occurred at the real property known as Monalizza Restaurant & Banquet (the “Property”). Defendant Brian Kirk Long (“Long”) and Doe Defendants allegedly brandished and used a firearm to inflict harm on Plaintiffs Clarence Morgan (“Morgan”) and Omari Johnson (“Johnson”) and to kill Decedent Lavell Lee Smith (“Smith”). Defendants Takui Ayvazyan and Armen Ayvazyan and Monalizza Restaurant (“Monalizza,” erroneously sued as Monalizza Restaurant & Banquet) (collectively the Monalizza Defendants”) are alleged to be the owners, operators and managers of the Property. Defendant Goldheart Productions, Inc. (“Goldheart”) and Leon Gough (“Gough”) (collectively the Goldheart Defendants”) allegedly rented Monalizza for a party on June 29, 2014. Plaintiffs allege that the Goldheart Defendants and the Monalizza Defendants negligently and carelessly failed to provide sufficient security to protect Plaintiffs.

Three separate lawsuits were commenced against the Defendants in this court in Case Nos. BC621464, BC624882 and BC625257. These cases have been consolidated in lead Case No. BC621464.

Plaintiffs Lee Smith, Anne Cunningham, Lavell Smith IV and minors Lorielle Smith and Levi Smith (by and through their guardian ad litem Colene Lockhart) (collectively the “Smith Plaintiffs”) filed a Complaint in connection with the shooting of Decedent Smith on May 23, 2016 and their First Amended Complaint (“Smith FAC”) on June 21, 2018. In the Smith FAC, the Smiths allege one cause of action for general negligence against all Defendants.

Plaintiff Johnson filed his Compliant on June 27, 2016 and his First Amended Complaint (“Johnson FAC”) on June 12, 2018. In the Johnson FAC, Plaintiff Johnson alleges three causes of action against the Monalizza Defendants and the Goldheart Defendants for: (1) negligence; (2) premises liability and (3) negligent hiring, retention and supervision. Johnson additionally alleges two causes of action against Defendant Kirk Long (“Long”) for (4) assault and (5) battery.

Plaintiff Morgan filed his Complaint on June 29, 2016 and filed a First Amended Complaint (the “Morgan FAC”) on November 13, 2017. In the Morgan FAC, Plaintiff Morgan alleges three causes of action against the Monalizza Defendants and the Goldheart Defendants for: (1) general negligence; (2) premises liability and (3) general negligence – negligent hiring, training, supervision and/or retention. Morgan additionally alleges eight causes of action against Defendant Long for; (4) general negligence; (5) assault; (6) battery; (7) intentional infliction of emotional distress and (8) negligent infliction of emotional distress.

Cross-Complainants Takui Ayvazyan and Monalizza filed a cross-complaints on September 7, 2016 and a the Monalizza Defendants filed a First Amended Cross-Complaint on August 28, 2018, alleging seven causes of action for: (1) breach of written contract against Goldheart; (2) express indemnity against Goldheart; (3) implied indemnity against Gough, Goldheart and Long; (4) total equitable indemnity against Gough, Goldheart and Long; (5) partial equitable indemnity against Gough, Goldheart and Long; (6) declaratory relief against Goldheart and (7) negligence against Long.

The Monalizza Defendants now move for requests for admissions, sets one to be deemed admitted against Lee Smith and Anne Cunningham (“Smiths”). No opposition has been filed to the instant motion.

Procedural History

On August 22, 2019, the Smiths’ counsel Jeffrey L. Molchan filed motions to be relieved as counsel. (Declaration of Megan Hitchcock (“Hitchcock Decl.”), ¶ 7.) On September 4, 2019, the Monalizza Defendants served Requests for Admission, Sets One on the Smiths by serving Jeffrey L. Molchan. (Hitchcock Decl. ¶ 8, Exhibits A-B.) Plaintiffs never served responses or requested an extension. (Hitchcock Decl. ¶ 8.) The court granted Jeffrey L. Molchan’s motions to be relieved as counsel on September 18, 2019 and ordered Molchan to give notice. (see Minute Order of September 18, 2019.)

Thereafter, the Monalizza Defendants sent letters to the Smiths on November 15, 2019, via certified mail, in an effort to meet and confer about their failure to respond. (Hitchcock Decl. ¶ 10, Exhibits C-D.) In December 2019, these letters were returned “unclaimed/unable to forward.” (Hitchcock Decl. ¶ 12.) On January 3, 2020, the Monalizza Defendants located a new address for Anne Cunningham via public records search and made another attempt to send a meet and confer letter to this new address. (Hitchcock Decl. ¶ 13, Exhibit G.)

Analysis

I. Discussion

“Any party may obtain discovery . . . by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.”  (Code Civ. Proc., § 2033.010.)  “Within 30 days after service of requests for admission, the party to whom the requests are directed shall serve the original of the response to them on the requesting party, and a copy of the response on all other parties who have appeared . . . .”  (Code Civ. Proc., § 2033.250(a).)

“If a party to whom requests for admission are directed fails to serve a timely response . . . . (b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010).”  (Code Civ. Proc., § 2033.280.) If the requesting party moves for an order to deem its requests for admissions admitted, the court “shall make this order, unless it finds that the party to whom the requests for admissions have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with section 2033.220.” (Code Civ. Proc., § 2033.280 (c).)

Here, as described above, the Monalizza Defendants have demonstrated that the Smiths were properly served with Requests for Admission, Sets One, via service to Jeffrey L. Molchan while Molchan remained attorney of record. Further, the Monalizza Defendants have demonstrated, although not specifically required, that attempts were made to serve the Smiths after they became self-represented following the court granting Molchan’s motions to be relieved as counsel.

Accordingly, the Monalizza Defendants’ motion to deem Requests for Admission, Sets One admitted as to Lee Smith and Anne Cunningham is GRANTED.

II. Request for Sanctions

The court may impose sanctions against any party for engaging in conduct constituting a “misuse of the discovery process.” (Code Civ. Proc., § 2023.030 (a).) Misuse of the discovery process includes “failing to respond or submit to an authorized method of discovery.” (Code Civ. Proc., § 2023.010 (d).)

The Monalizza Defendants request sanctions in the amount of $2,125 against the Smiths in connection with this motion. However, given the above described circumstances, the court finds that imposing sanctions would be unjust. As such, no sanctions are awarded.

III. Conclusion

Monalizza Defendants’ motion to deem Requests for Admission, Sets One admitted as to Lee Smith and Anne Cunningham is GRANTED. Moving parties’ counsel to give notice.

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