This case was last updated from Los Angeles County Superior Courts on 05/08/2020 at 11:01:45 (UTC).

ADRIAN THOMAS VS ZACHARY T ELAMIR DDS ET AL

Case Summary

On 04/16/2018 ADRIAN THOMAS filed a Contract - Other Contract lawsuit against ZACHARY T ELAMIR DDS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MICHAEL J. RAPHAEL and DENNIS J. LANDIN. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2224

  • Filing Date:

    04/16/2018

  • Case Status:

    Other

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MICHAEL J. RAPHAEL

DENNIS J. LANDIN

 

Party Details

Plaintiffs, Petitioners and Cross Defendants

THOMAS ADRIAN

THOMAS ADRIAN AKA ADRIANA NICOLESCU APOSTU THOMAS

PROFESSIONAL DENTAL CORPORATION

THOMAS ADRIANA NICOLESCU

Defendants and Respondents

DOES 1-20

ZACHARY T. ELAMIR PROFESSIONAL DENTAL

CADENA MERI T.

ELAMIR ZACHARY T. D.D.S.

ELA-MIR SHERIF T. M.D.

TULE MARIBEL

BUTLER TIFFANY

AVILA TRACY

Defendant and Cross Plaintiff

BUTLER TIFFANY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

CATANZARITE LAW CORPORATION

CATANZARITE KENNETH JOSEPH

Attorney at Catanzarite Law Corp

2331 W Lincoln Ave

Anaheim, CA 92801

WOODWARD BRANDON E.

WOODWARD BRANDON E. ESQ.

Defendant and Respondent Attorneys

FRANCIS THOMAS E. ESQ.

Attorney at Bohm Francis Kegek & Aguilera, LLP

2603 Main Street, Suite 1000

Irvine, CA 92614

SIDDIQUI OMAR A

HA ERIC H.

Attorney at Ulwelling Siddiqui LLP

695 Town Center Dr Ste 700

Costa Mesa, CA 92626

JOSEPHSON DANIEL MARCO

FRANCIS THOMAS

BENNETT ERIC

FRANCIS THOMAS EDWARD ESQ.

MOW MARGARETTE M

SIDDIQUI OMAR A ESQ.

CARMAN DAVID ALAN

FRANCIS THOMAS EDWARD

Defendant and Cross Defendant Attorneys

FRANCIS THOMAS EDWARD ESQ.

SIDDIQUI OMAR A ESQ.

CATANZARITE KENNETH JOSEPH

Attorney at Catanzarite Law Corp

2331 W Lincoln Ave

Anaheim, CA 92801

 

Court Documents

SUMMONS -

4/16/2018: SUMMONS -

Notice - NOTICE OF ENTRY OF DISMISSAL AND PROOF OF SERVICE

4/23/2020: Notice - NOTICE OF ENTRY OF DISMISSAL AND PROOF OF SERVICE

Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

2/26/2020: Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

Motion for Attorney Fees

2/14/2020: Motion for Attorney Fees

Declaration - DECLARATION OF THOMAS E. FRANCIS IN SUPPORT

2/14/2020: Declaration - DECLARATION OF THOMAS E. FRANCIS IN SUPPORT

Request - REQUEST FOR INFORMAL DISCOVERY CONFERENCE AND DECLARATION OF VINCENT E. NOWAK

12/5/2019: Request - REQUEST FOR INFORMAL DISCOVERY CONFERENCE AND DECLARATION OF VINCENT E. NOWAK

Declaration - DECLARATION OF ATTORNEY THOMAS E FRANCIS IN OPPOSITION TO MOTION TO COMPEL

6/26/2019: Declaration - DECLARATION OF ATTORNEY THOMAS E FRANCIS IN OPPOSITION TO MOTION TO COMPEL

Declaration - DECLARATION OF ATTORNEY THOMAS FRANCIS IN OPPOSITION TO MOTION TO COMPEL FURTHER PRODUCTION OF DOCUMENTS AGAINST MARIBEL TULE

6/20/2019: Declaration - DECLARATION OF ATTORNEY THOMAS FRANCIS IN OPPOSITION TO MOTION TO COMPEL FURTHER PRODUCTION OF DOCUMENTS AGAINST MARIBEL TULE

Motion for Stay of Proceedings

5/3/2019: Motion for Stay of Proceedings

Demurrer - with Motion to Strike (CCP 430.10)

4/23/2019: Demurrer - with Motion to Strike (CCP 430.10)

Order on Court Fee Waiver (Superior Court)

4/4/2019: Order on Court Fee Waiver (Superior Court)

Answer

4/4/2019: Answer

Notice of Ruling

3/20/2019: Notice of Ruling

Proof of Personal Service

1/9/2019: Proof of Personal Service

NOTICE RE: CONTINUANCE OF HEARING

8/7/2018: NOTICE RE: CONTINUANCE OF HEARING

RULING RE: MOTION TO QUASH SERVICE OF SUMMONS

9/6/2018: RULING RE: MOTION TO QUASH SERVICE OF SUMMONS

CASE MANAGEMENT STATEMENT -

7/13/2018: CASE MANAGEMENT STATEMENT -

PROOF OF SERVICE OF SUMMONS

5/10/2018: PROOF OF SERVICE OF SUMMONS

162 More Documents Available

 

Docket Entries

  • 04/23/2020
  • DocketNotice (OF ENTRY OF DISMISSAL AND PROOF OF SERVICE); Filed by Adrian Thomas (Plaintiff)

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  • 04/21/2020
  • Docketat 09:00 AM in Department 51, Dennis J. Landin, Presiding; Hearing on Motion for Protective Order - Not Held - Continued - Party's Motion

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  • 03/24/2020
  • Docketat 09:30 AM in Department 51, Dennis J. Landin, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 03/24/2020
  • Docketat 09:00 AM in Department 51, Dennis J. Landin, Presiding; Hearing on Motion to be Relieved as Counsel (Sherif T. M.D. Ela-Mir; (4790)) - Not Held - Vacated by Court

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  • 03/24/2020
  • Docketat 09:00 AM in Department 51, Dennis J. Landin, Presiding; Hearing on Motion to be Relieved as Counsel (for Zachary T. Elamir Professional Dental Corporation; (8940)) - Not Held - Vacated by Court

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  • 03/24/2020
  • Docketat 09:00 AM in Department 51, Dennis J. Landin, Presiding; Trial Setting Conference (and Request for Sanctions) - Not Held - Vacated by Court

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  • 03/24/2020
  • Docketat 08:30 AM in Department 51, Dennis J. Landin, Presiding; Trial Setting Conference (and Request for Sanctions) - Not Held - Advanced and Continued - by Court

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  • 03/24/2020
  • DocketRequest for Dismissal; Filed by Adrian Thomas (Plaintiff)

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  • 03/18/2020
  • DocketOrder to Show Cause re: Dismissal (Settlement); Filed by Clerk

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  • 03/17/2020
  • DocketNotice of Settlement; Filed by Adrian Thomas (Plaintiff)

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232 More Docket Entries
  • 05/10/2018
  • DocketProof-Service/Summons; Filed by Adrian Thomas (Plaintiff)

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  • 04/23/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/23/2018
  • DocketCase Management Statement; Filed by Adrian Thomas (Plaintiff)

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  • 04/17/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/17/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/16/2018
  • DocketComplaint; Filed by Adrian Thomas (Plaintiff)

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  • 04/16/2018
  • DocketSUMMONS

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  • 04/16/2018
  • DocketCOMPLAINT

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  • 04/16/2018
  • DocketNOTICE OF DEPOSITING JURY FEES

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  • 04/16/2018
  • DocketCIVIL DEPOSIT

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Tentative Rulings

Case Number: BC702224    Hearing Date: November 08, 2019    Dept: 51

Background

Plaintiffs Adrian Thomas, et al. (“Plaintiffs”) on behalf of his deceased wife Adriana N. Thomas Elamir, D.D.S., et al. (“Defendants”), alleging various breach of contract and tort claims related to Dr. Thomas’s selling the dental practice to Zachary T. Elamir Dr. Elamir”)

On April 16, 2018, Plaintiff filed the Complaint against Defendants, and on August 2, 2019, the Second (“SAC”) for

(1)breach of contract;

(2)breach of covenant of good faith and fair dealing;

(3)conversion;

(4)breach of fiduciary duty;

(5)common count for money had and received;

(6)accounting;

(7)financial elder abuse;

(8)aiding and abetting financial elder abuse;

(9)unfair business practices;

(10)aiding and abetting breach of fiduciary duty; and

(11)conspiracy to commit breach of fiduciary duty.

On September 3, 2019, Defendants Maribel Tule (“Tule”), Meri T. Cadena (“Cadena”), and Tracy Avila (“Avila”) filed the instant Demurrer and Motion to Strike. 

The Court considered the moving, opposition, and reply papers and rules as follows.

Demurrer Standard

A demurrer tests the sufficiency of the pleading at issue as a matter of law.  City of Chula Vista v. County of San Diego A demurrer may be sustained where the complaint fails to state facts sufficient to constitute a cause of action. CCP¿§¿430.10(e).  The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged.  Marshall v. Gibson, Dunn & Crutcher Shields v. County of San Diego liberally However, the Court does not assume the truth of allegations expressing conclusions of law or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.  Vance v. Villa Park Mobilehome

A special demurrer for uncertainty, Code of Civil Procedure §430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts Khoury v. Maly’s Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.”  Id.

If the demurrer is sustained, plaintiff “has the burden of proving the possibility of cure by amendment.”  Czajkowski Grinzi Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action.  Schulz v. Neovi ¿

Demurrer Analysis

FourthTenth, and Eleventh Causes

On July 3, 2019, the Court sustained Tule, Cadena, and Avila’s demurrer to the fourth, tenth, and eleventh causes of action on the grounds that Plaintiffs failed to sufficiently allege that those employees had managerial authority or discretionary power to manage corporate affairs and that they either provided substantial assistance or had a mutual understanding of Dr. Elamir’s

In the SAC, Plaintiffs have added that Dr. Thomas entrusted Tule, Cadena, and Avila with the transition of patients and maintenance of goodwill value and therefore they essentially served managerial roles and held discretionary power and authority to manage the transition. SAC, ¶ 78. Also, in Opposition, Plaintiffs argue that confidential relationship between Dr. Thomas and the employees gives

The Court finds that Plaintiffs have still failed to sufficiently allege the bases of the employees’ fiduciary duties. A defendant cannot be charged with a fiduciary duty unless he or she knowingly undertook to act on behalf of and for the benefit of another or entered into a relationship that imposes such an undertaking as a matter of law. Committee on Children's Television, Inc. v. General Foods Corp. Elamir. See GAB Business Services, Inc. v. Lindsey & Newsom Claim Services, Inc.

Further, Plaintiffs’ aiding and abetting claim fails again. In order to find aiding and abetting, plaintiff must show that defendant had “actual knowledge of the specific primary wrong” and “substantial assistance.” Casey v. U.S. Bank Nat. Assn.¿(2005) 127 Cal.App.4th 1138, 1145. The SAC is not only unclear as to whether Tule, Cadena, and Avila actually knew of the specific wrong allegedly committed by Dr. Elamir was Id. (general allegation the banks knew the fiduciaries were involved in “wrongful or illegal conduct” does not constitute sufficient pleading that the banks had actual knowledge the fiduciaries were misappropriating funds from a trustee.) Plaintiffs fail to provide factual allegations other than conclusory statements that they knew Dr. Elamir’s

Lastly, Plaintiffs “By its nature, tort liability arising from conspiracy presupposes that the coconspirator is legally capable of committing the tort, i.e., that he or she owes a duty to plaintiff recognized by law and is potentially subject to liability for breach of that duty.” Applied Equipment Corp. v. Litton Saudi Arabia Ltd. . As explained above, the Court finds that Plaintiffs fail to establish Tule, Cadena, and Avila’s Id.; Klistoff¿v. Sup. Ct.¿(2007) 157

As Plaintiffs have failed to establish these claims in their third pleading, the Court sees no possibility of cure by amendment. 

Accordingly, Tule, Cadena, and Avila’s tenth, and eleventh s SUSTAINED OUT .

Seventh and Eighth Causes

On July 3, 2019, the Court sustained Tule, Cadena, and Avila’s demurrer to the seventh and eighth causes of action on the grounds that

Welfare and Institutions Code § 15610.30(a), provides: “(a) ‘Financial abuse’ of an elder or dependent adult occurs when a person or entity does any of the following:

(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

While the Court again finds that Plaintiffs fail to allege Tule, Cadena, and Avila’s Elamir’s Welf. & Inst. Code § 15610.30(a)(2); see also Knox v. Dean¿(2012) 205 Cal.App.4th 417, 424

However, the aiding and abetting claim for financial abuse fails, because, as explained above, Plaintiffs fail to establish Tule, Cadena, and Avila’s substantial assistance to Elamir’s See American Master Lease LLC

Accordingly, Tule, Cadena, and Avila’s demurrer is SUSTAINED WITHOUT LEAVE TO AMEND

Ninth Cause of Action: Unfair Business Practices

Plaintiffs allege Tule, Cadena, and Avila’s violation of Bus. & Prof. Code § 17200 based on the¿aforementioned causes¿of action, and availability of this claim depends on the availability of the underlying claims.

As the Court has overruled the demurrer as to the seventh cause of action but sustained as to the other causes of action, Tule, Cadena, and Avila’s demurrer to this claim based on the seventh cause of action and is SUSTAINED WITHOUT LEAVE TO AMEND based on the remaining causes of action. 

Motion to Strike Standard¿¿

¿¿

Punitive Damages¿

¿

To succeed on a motion to strike punitive damages allegations, it must be said as a matter¿of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people.¿Angie M. v. Superior Court¿(1995) 37 Cal.App.4th¿1217, 1228-1229.¿Civil Code¿section¿3294 provides punitive damages are available in non-contract actions where defendant is guilty of malice, oppression, or fraud, defined as follows:¿

¿

(c) As used in this section, the following definitions shall apply:¿

¿

(1) “Malice”¿means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.¿

¿

(2) “Oppression”¿means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.¿

¿

(3) “Fraud”¿means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.¿

¿

A¿demand for punitive damages for the commission of any tort requires more than the mere allegation of the “wrongfully and intentionally,” “oppression, fraud, and malice” sort of language found in Civil Code section 3294.¿Perkins v Superior Court¿(1981) 117 Cal.App.3d 1, 6-7. The allegations of fact must, in their totality, describe a state of mind and a motive that would sustain an award of punitive damages.¿Ibid.¿The mere allegation that an intentional tort is committed is insufficient to warrant an award of punitive damages.¿Grieves v. Superior Court¿(1984) 157 Cal.App.3d 159, 166. Not only must there be circumstances of¿oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim.¿Ibid.¿

¿ Motion to Strike Analysis

Defendant moves to strike Plaintiffs’ prayer for punitive damages SAC

As the Court has sustained , the motion

As for punitive damages, while there are some circumstantial allegations of malice, oppression, or fraud, the SAC does not present sufficient facts to support such finding. Plaintiffs¿mere allegation that¿an intentional tort is committed is insufficient to warrant an award of punitive damages.¿Grieves, supra, 157 Cal.App.3d at 166. As the motion relates to punitive damages, the motion is granted with leave to amend within 20 days.¿

Conclusion

Tule, Cadena, and Avila’s demurrer is fourth, eighth, ninth, tenth and eleventh s

Tule, Cadena, and Avila’s motion for claims to which the Court has sustained demurrer without leave to amend.

As the motion relates to punitive damages, the motion is GRANTED.

Tule, Cadena, and Avila to give notice.

Dated:

__________________________________________

Dennis J. Landin

Superior Court Judge