This case was last updated from Los Angeles County Superior Courts on 05/28/2019 at 02:33:50 (UTC).

ALEN PETROYSAN VS EDDY ALLAHVERDIAN ET AL

Case Summary

On 07/19/2017 ALEN PETROYSAN filed a Personal Injury - Other Personal Injury lawsuit against EDDY ALLAHVERDIAN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CHRISTOPHER K. LUI. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9012

  • Filing Date:

    07/19/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

CHRISTOPHER K. LUI

 

Party Details

Petitioner and Plaintiff

PETROSYAN ALEN

Defendants and Respondents

ALLAHVERDIAN EDDY

ALLAHVERDIAN MARIA

DOES 1 THROUGH 50

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

MACIAS SEAN E. ESQ.

AVANESIAN MICHAEL

Defendant Attorneys

CZAJKOWSKYJ CYRILLUS SIMEON

BRAUNSTEIN GEORGE GREGORY

 

Court Documents

CROSS-COMPLAINT FOR: (1) BREACH OF CONTRACT (2) PRIVATE NUISANCE (3) DECLARATORY RELIEF (4) INJUNCTIVE RELIEF

8/20/2018: CROSS-COMPLAINT FOR: (1) BREACH OF CONTRACT (2) PRIVATE NUISANCE (3) DECLARATORY RELIEF (4) INJUNCTIVE RELIEF

DEFENDANTS' ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

8/20/2018: DEFENDANTS' ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

STATEMENT OF DAMAGES

9/19/2018: STATEMENT OF DAMAGES

STATEMENT OF DAMAGES

9/19/2018: STATEMENT OF DAMAGES

Answer

10/18/2018: Answer

Notice

10/18/2018: Notice

Notice of Change of Address or Other Contact Information

12/18/2018: Notice of Change of Address or Other Contact Information

Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)

12/24/2018: Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)

Substitution of Attorney

2/1/2019: Substitution of Attorney

Notice

2/5/2019: Notice

Declaration

4/23/2019: Declaration

Opposition

4/23/2019: Opposition

Declaration

4/23/2019: Declaration

Ex Parte Application

4/24/2019: Ex Parte Application

Opposition

4/24/2019: Opposition

Minute Order

4/24/2019: Minute Order

Minute Order

4/24/2019: Minute Order

Opposition

4/24/2019: Opposition

15 More Documents Available

 

Docket Entries

  • 05/15/2019
  • Docketat 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 05/15/2019
  • DocketMotion to Compel (Responses to Requests for Production of Documents); Filed by Alen Petrosyan (Plaintiff)

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  • 05/15/2019
  • DocketMotion to Deem RFA's Admitted; Filed by Alen Petrosyan (Plaintiff)

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  • 05/15/2019
  • DocketMotion to Compel (Responses to Form and Special Interrogatories); Filed by Alen Petrosyan (Plaintiff)

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  • 04/24/2019
  • Docketat 10:42 AM in Department 4A, Christopher K. Lui, Presiding; Ex-Parte Proceedings

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  • 04/24/2019
  • Docketat 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Hearing on Ex Parte Application (to Continue Trial Date, Final Status Conference Date and Related Deadlines) - Not Held - Vacated by Court

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  • 04/24/2019
  • Docketat 08:30 AM in Department 4; Hearing on Ex Parte Application (to Continue Trial Date, Final Status Conference Date and Related Deadlines) - Not Held - Clerical Error

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  • 04/24/2019
  • Docketat 12:53 PM in Department 4A, Christopher K. Lui, Presiding; Nunc Pro Tunc Order

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  • 04/24/2019
  • DocketMinute Order ( (Plaintiff and Cross-Defendant Alen Petrosyan's Ex Parte Motio...)); Filed by Clerk

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  • 04/24/2019
  • DocketMinute Order ( (Nunc Pro Tunc Order)); Filed by Clerk

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26 More Docket Entries
  • 07/23/2018
  • DocketREQUEST FOR ENTRY OF DEFAULT

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  • 08/24/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 08/24/2017
  • DocketProof of Service (not Summons and Complaint); Filed by Alen Petrosyan (Plaintiff)

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  • 08/24/2017
  • DocketProof of Service (not Summons and Complaint); Filed by Alen Petrosyan (Plaintiff)

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  • 08/24/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 07/25/2017
  • DocketFirst Amended Complaint; Filed by Alen Petrosyan (Plaintiff)

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  • 07/25/2017
  • DocketFIRST AMENDED COMPLAINT FOR: 1. TRESPASS; AND 2. NEGLIGENCE (DEMAND FOR JURY TRIAL)

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  • 07/19/2017
  • DocketSUMMONS

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  • 07/19/2017
  • DocketComplaint; Filed by Alen Petrosyan (Plaintiff)

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  • 07/19/2017
  • DocketCOMPLAINT FOR 1) TRESSPASS; AND 2) NEGLIGENCE

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Tentative Rulings

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Case Number: ****9012 Hearing Date: September 17, 2021 Dept: D

TENTATIVE RULING

Calendar: 12

Date: 9/17/2021

Case No: BC 669012 Trial Date: March 28, 2021

Case Name: Petrosyan v. Allahverdian, et al.

DEMURRER

MOTION TO STRIKE

Moving Party: Defendants Eddy Allahverdian and Maria Allahverdian

Responding Party: Plaintiff Alen Petrosyan

RELIEF REQUESTED:

Sustain demurrer to second, eighth and ninth causes of action of Second Amended Complaint

Strike punitive damages, treble damages

CAUSES OF ACTION: from Second Amended Complaint

1) Wrongful Injury and Cutting of Timber/Trees

2) Trespass

3) Conversion

4) Negligence

5) Unjust Enrichment

6) Fraud

7) Private Nuisance

8) Cancellation of Written Instruments (CC section 3412)

9) Cancellation of Written Instruments (CC section 5975)

SUMMARY OF FACTS:

Plaintiff Alen Petroysyan alleges that he is the owner of property located at 652 Robin Glen in Glendale and that defendants Eddy Allahverdian and Maria Allahverdian, the owners of property located at 658 Robin Glen Drive in Glendale, in June of 2017 hired gardeners and instructed them to chop down the trees on plaintiff’s land for defendants’ view. Plaintiff alleges that plaintiff consented to a small trim of certain trees on plaintiff’s land, of six inches, but defendants’ gardeners, under the instruction of defendants, completely and totally chopped the trees and foliage on plaintiff’s land to nearly the stumps of the trees. Plaintiff alleges that defendants have met with plaintiff’s representative to discuss the chopping of the trees, and defendant Eddy Allahverdian apologized and acknowledged the chopping was not authorized but refused to resolve the matter without judicial intervention. Plaintiff alleges that defendants’ conduct constituted an unlawful trespass to plaintiff’s property and negligence and seeks damages.

Defendants have filed a cross-complaint against plaintiff Petrosyan, alleging that the parties’ real properties are subject to CC&Rs pursuant to which no building, tree or shrub that might obstruct the view from any lot, shall be higher than fifteen feet above the ground level of any lot, but that there are multiple trees on the Petrosyan property that exceed the maximum height allowance. It is also alleged that the failure of cross-defendant to properly maintain the trees on the Petrosyan property has caused an obstruction to the view from cross-complainants’ property and interfered with the comfortable enjoyment of the property. The cross-complaint alleges causes of action for breach of contract, private nuisance, declaratory relief, and injunctive relief.

On April 30, 2021, the court heard a motion by plaintiffs for leave to file a second amended complaint to add claims for fraud and statutory claims relating to the cutting of the trees. The motion was granted. The court’s minute order indicates that plaintiffs were ordered to efile the SAC that date, and that, “The SAC will be considered filed and served as of the date the pleading is efiled.” The SAC was filed on April 30, 2021.

ANALYSIS:

Procedural

Untimely

Under CCP ;436, the court may “upon motion made pursuant to Section 435, or at any time in its discretion” strike out “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court.”

Under CCP ;435, a party may serve and file a notice of motion to strike “within the time allowed to respond to a pleading…”

Under CCP ;430.40, the time permitted to demur to a complaint is “within 30 days after service of the complaint…”

CRC Rule 3.110(d) provides:

“The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint.”

Here, the complaint was served on defendant on April 30, 2021. Thirty days from this date would have been May 30, 2021. The demurrer and motion to strike were filed and served on August 23, 2021, nearly three months late. It appears from the meet and confer declaration that the parties stipulated to extensions of time. However, the pleading is not the initial complaint, and the parties are not permitted to stipulate to extensions to plead without leave of court. The demurrer could be overruled as untimely, and the motion to strike could be denied as untimely, but the court elects not to do so.

Substantive

Demurrer

Second Cause of Action—Trespass

Defendant argues that this cause of action is duplicative of the first cause of action for wrongful injury and cutting of timber/trees. The cause of action, however, does not appear duplicative, as it appears to be an attempt to allege in the alternative a common law trespass claim, albeit based on the same facts as the preceding cause of action based on statutory provisions. Moreover, as argued in the opposition, under the liberal rules of pleading, parties are permitted to plead duplicative, alternative, or even inconsistent causes of action. See Jackson v. County of Los Angeles (1997, 2nd Dist.) 60 Cal.App.4th 171, 177, 180.

The duplicative standard referred to by defendants is not currently listed as a ground to sustain a demurrer under CCP ; 430.10. See Blickman Turkus, LP v. MF Downtown Sunnydale, LLC (2008) 162 Cal.App.4th 858, 890 (“This is not a ground on which a demurrer may be sustained.”) The demurrer to this cause of action is overruled.

Eighth Cause of Action—Cancellation of Written Instruments (CC section 3412) and Ninth Cause of Action—Cancellation of Written Instruments (CC section 5975)

Statute of Limitations

Defendants argue that these causes of action are barred by the applicable statutes of limitations, which defendants argue is three years from the date of discovery under CCP section 343.

The demurrer concedes, however, that when the gravamen of a cause of action involves fraud or mistake, the statute of limitations applicable is CCP section 338, which provides at subpart (d) that “an action for relief on the ground of fraud or mistake” must be commenced within three years. CCP ; 338(d) provides that in an action for relief on the ground of fraud or mistake, “The cause of action in that case is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.”

Defendants’ argument is that the SAC seeks to cancel an amendment to the CC&Rs, which amendment is alleged to have been “dated just a few years after Defendants had settled their case …in 2010.” [SAC, para. 23]. Defendants argue that the complaint was filed on July 19, 2017, which is more than three years after the Amendment was dated, and that the SAC adding these claims was not filed until leave was granted in April of 2021. It is not clear from the pleading when the statute began to run, as a few years after 2010 could well have been in 2014, placing the matter within the appropriate statute.

A demurrer on the ground a cause of action is barred by the statute of limitations should be sustained only where the facts alleged on the face of the complaint “clearly and affirmatively” show that the cause of action is barred. It is not enough that the complaint might be barred. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.

The Second District in Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316 followed Marshall in reversing a trial court’s order dismissing causes of action in a racial discrimination case on the ground the claims were barred by the applicable statute of limitations, observing:

“A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. (See Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 300 [146 Cal.Rptr. 271].) The running of the statute must appear “clearly and affirmatively” from the dates alleged. It is not sufficient that the complaint might be barred. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403 [44 Cal.Rptr.2d 339].) If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy “is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment ....” (United Western Medical Centers v. Superior Court (1996) 42 Cal.App.4th 500, 505 [49 Cal.Rptr.2d 682].)

Roman, at 324-325, italics in original.

The dates in the pleading here are sufficiently vague and do not show that the claims clearly and affirmatively are barred from the dates alleged. The argument in the demurrer depends on assumptions not grounded in the pleading, and factual arguments about the claims not relating back to the filing of the initial pleading, which cannot be resolved affirmatively on demurrer. The demurrer on this ground is overruled.

Uncertainty

Defendants further argue that the pleading is uncertain as to these causes of action because plaintiff has failed to attach a copy of the instrument which plaintiff wants to cancel, and it is not clear whether plaintiff seeks to cancel the entirety of the CC&Rs, a portion thereof, or the amendment or a portion of that amendment.

CCP ; 430.10 states in pertinent part:

“The party against whom a complaint ... has been filed may object, by demurrer...to the pleading on any one or more of the following grounds:

(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes a ambiguous or unintelligible.

Permitting demurrer for uncertainty is based on the policy which favors parties having notice of the liability alleged, and the pleading must be sufficiently certain to apprise the defendant of the basis upon which the plaintiff is seeking relief. Perkis v. Superior Court (1981) 117 Cal.App.3d 1, 6. It is generally held, “demurrers for uncertainty are disfavored. We strictly construe such demurrers because ambiguities can reasonably be clarified under modern rules of discovery.” Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.

The pleading here quotes from the amendment, which is a provision evidently relied upon by defendants here in their cross-complaint. [SAC, paras. 23, 24]. The pleading alleges that the amendment is void ab initio, and states facts related to that language why the amendment was obtained through fraud. [SAC, paras. 25-31].

As pointed out in the opposition, the causes of action clearly allege that “the amendment should be cancelled,” and that the “amendment created an unreasonable restriction on the use of Plaintiff’s property.” [SAC, paras. 102, 82 (second para. 82)]. The pleading is not uncertain on this ground, and the demurrer is overruled.

Serious Injury

Defendants further argue that plaintiff fails to sufficiently show he will suffer serious injury if the amendment remains. This contention somewhat undermines the argument that defendants cannot tell what plaintiff is attempting to cancel, as defendants are able to tell, that plaintiffs are seeking cancellation of the amendment.

In any case, under Civil Code section 3412, setting forth grounds for cancellation of a written instrument:

“A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or cancelled.”

The SAC alleges in some detail that plaintiff is harmed in several ways, as under the previous version of the CC&Rs, plaintiff’s trees could grow much higher, and that the value of the real property is affected by this amendment, and also that under the amendment plaintiff could not have any trees in his backyard, and defendants were allowed to block plaintiff’s view, further affecting the value of the home. [SAC, paras. 99, 100, and 82, 83 and 85 (second paras. 82, 83 and 85)]. The elements of the claims are sufficiently stated, and the demurrer is overruled on this ground.

Indispensable Party

Defendants argue that the claims are more properly brought as defenses to the cross-complaint, rather than as separate causes of action. However, these appear to be proper claims to cancel the amendment to the CC&Rs, which amendment, if left outstanding, could cause serious injury to plaintiffs, as discussed above. The argument then seems to be that the homeowners association is an indispensable party here which plaintiff has failed to name, as there is a potential for prejudice to the HOA if there is some inconsistent application of its obligations under the CC&Rs.

CCP section 389 provides, in pertinent part:

(a) A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.

Civil Code ; 5975(a) provides with respect to common interest developments

“(a) The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both.”

It would appear that plaintiff as an owner of separate interest has standing to alone enforce or challenge whether the amendment to the CC&Rs are binding on him.

In addition, as argued in the opposition, there is no mention of a HOA in the SAC. Plaintiff indicates that this is because there is no HOA in existence. This issue again appears to be a matter of proof, which is beyond the scope of demurrer, but should be reserved for a motion to dismiss or motion for summary adjudication. The opposition cites to case law in which one neighbor in fact sued another with respect to the validity of an amendment to the governing CC&Rs, and various neighbors cross-complained, in which although it appeared that a HOA had at some point existed, a HOA was not joined in the action, and the court of appeal did not reach the issue of whether all owners needed to be joined in the lawsuit. See Schuman v. Ignatin (2010, 2nd Dist.) 191 Cal.App.4th 255, 258, 263.

The pleading fails to show on its face that an indispensable party has not been named, and the demurrer on this ground is overruled.

Motion to Strike

Punitive Damages

Defendants seek to strike from the pleading the reference to punitive damages in the first cause of action for wrongful tree cutting, the third cause of action for conversion and the fourth cause of action for negligence, as well as the prayer for punitive damages in the prayer for relief.

Civil Code ; 3294 (a) authorizes recovery of punitive damages on the basis of findings that “the defendant has been guilty of oppression, fraud, or malice…” “Oppression” is defined to mean “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Civil Code ; 3294 (c)(2). “Malice” is defined to mean “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.” Civil Code ; 3294 (c)(a).

“Despicable” has been defined as a powerful term that refers to circumstances that are “base,” “vile,” or “contemptible.” College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725. “Despicable conduct” is defined as, “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary, decent people.” Mock v. Michigan Millers Mutual Ins. Co. (1990, 2nd Dist.) 4 Cal. App. 4th 306, 331, quoting BAJI 14.72.1; See CACI 3940 (“’Despicable conduct’ is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people.”) Such conduct has been described as “[having] the character of outrage frequently associated with crime.” Taylor v. Superior Court (1979) 24 Cal.3d 890, 894, quotation omitted.

With respect to the first cause of action for wrongful tree cutting, the cause of action sufficiently alleges facts giving rise to a punitive damages claim, as the claim alleges that plaintiffs engaged in trespass onto plaintiff’s property, and intentionally destroyed plaintiff’s property, the trees and landscape. [SAC, paras. 59-62]. A claim for intentional trespass has long been held to support a claim for punitive damages. See Haun v. Hyman (1963) 223 Cal.App.2d 615. The motion to strike accordingly is denied.

With respect to the third cause of action for conversion, the sufficiency of this cause of action has not been challenged by the demurrer, and it has also long been held that since a conversion cause of action is in the nature of a criminal act, theft, such a claim ordinarily supports a claim for punitive damages. See Witkin, Summary of Cal. Law (10th Ed. 6 Torts section 1589 (“Conversion is a tort that often justifies an award of punitive damages,” citing multiple authorities, including Haigler v. Donnelly (1941) 18 Cal.2d 674, 681). The motion accordingly is denied.

With respect to the fourth cause of action for negligence, it does not appear that a negligence claim can support a finding of oppression, fraud or malice here, as negligent acts, as opposed to intentional or acts undertaken in conscious disregard of plaintiff’s safety or rights, would not be sufficient. The motion to strike accordingly is granted and paragraph 84 stricken from the pleading. It does not appear that the cause of action can be amended to support such a claim, so long as the claim is based in negligence, so the motion is granted without leave to amend.

With respect to the general prayer for punitive damages, with respect to the “Second, Third, Fourth and Sixth Causes of Action,” the court will strike the reference to “Fourth,” the negligence cause of action. The motion will otherwise be denied, as the damages are sought in connection with the second cause of action for trespass and third cause of action for conversion, which, as discussed above, are causes of action which support the imposition of punitive damages. The sixth cause of action is for fraud, and the sufficiency of this cause of action is not challenged. In this case, with respect to the fraud cause of action, punitive damages are appropriately stated. A properly pleaded fraud claim will itself support recovery of punitive damages; no allegations of malice or intent to injure are required. Stevens v. Superior Court (1986, 2nd Dist.) 180 Cal.App.3d 605, 610-611.

Treble Damages

Defendants seek to strike the treble damages sought in connection with the second cause of action for trespass, as well as the third cause of action for conversion. Defendants argue that the claims seek such damages pursuant to statute, Civil Code section 3346 and CCP section 733, which statutes specifically pertain to a cause of action asserting trespass or damage to trees/timber.

Plaintiff in opposition concedes that the treble damages provisions of those statutes are limited to those sections and not available under common law trespass and conversion theories. The motion to strike accordingly is granted as to those claims. The opposition requests leave to amend the complaint to delete references to the statutes and add claims for punitive damages. This request appears unnecessary, as the SAC already seeks punitive damages in connection with the trespass and conversion causes of action, as discussed above. The Court strikes paragraph 69, the words, “Plaintiffs are entitled to treble damages pursuant to well [sic] as treble damages and attorney’s fees pursuant Civil Code section 3346 and Code of Civil Procedure section 733 and 1029.8,” and paragraph 74 in its entirety without leave to amend.

RULING:

The Court notes that the demurrer and motion to strike are untimely, filed and served nearly three months late. The parties are not permitted to agree to extensions of time to plead without advance leave of court. Counsel for defendants is cautioned that in the future the Court may refuse to consider pleadings not filed in conformity with the statutes, rules and procedures governing this litigation.

Defendants Eddy Allahverdian and Maria Allahverdian’s Demurrer to Plaintiff’s Second Amended Complaint is OVERRULED.

Defendants Eddy Allahverdian and Maria Allahverdian’s Motion to Strike Portions of Plaintiff’s Second Amended Complaint Motion to Strike is GRANTED WITHOUT LEAVE TO AMEND as to the claim for punitive damages in connection with the negligence cause of action. Paragraph 84 is stricken from the SAC in its entirety. As to the prayer for punitive damages, prayer, paragraph 3, the word “Fourth” is stricken from the SAC without leave to amend.

At the concession in the opposition, the requests for treble damages in connection with the second and third causes of action are also stricken without leave to amend. The court orders stricken from the SAC the portion of paragraph 69, which states, “Plaintiffs are entitled to treble damages pursuant to well [sic] as treble damages and attorney’s fees pursuant Civil Code section 3346 and Code of Civil Procedure section 733 and 1029.8,” and paragraph 74 in its entirety.

Motion is otherwise DENIED.

Ten days to answer.

GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE

THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING

AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect/Microsoft Teams offers audio and video appearance at a cost of $15.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear. Anyone who appears in person for the hearing, regardless of vaccination status, must wear a face mask over both the nose and mouth. If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.

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Case Number: ****9012    Hearing Date: April 30, 2021    Dept: D

TENTATIVE RULING
Calendar: 12
Date: 4/30/2021
Case No: ****9012 Trial Date: November 1, 2021 
Case Name: Petrosyan v. Allahverdian, et al.
MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
Moving Party:      Plaintiff Alen Petrosyan   
Responding Party: Defendants Eddy Allahverdian and Maria Allahverdian     
RELIEF REQUESTED: File a Second Amended Complaint
Date Original Complaint filed:   July 19, 2017
Effect of Amendment 
Brings causes of action stemming from fraud, and causes of action remedial for the specific harm alleged, damages to trees, and provides a clear formula for calculating damages. 
RELEVANT FACTS:
 Plaintiff Alen Petroysyan alleges that he is the owner of property located at 652 Robin Glen in Glendale and that defendants Eddy Allahverdian and Maria Allahverdian, the owners of property located at 658 Robin Glen Drive in Glendale, in June of 2017 hired gardeners and instructed them to chop down the trees on plaintiff’s land for defendants’ view.  Plaintiff alleges that plaintiff consented to a small trim of certain trees on plaintiff’s land, of six inches, but defendants’ gardeners, under the instruction of defendants, completely and totally chopped the trees and foliage on plaintiff’s land to nearly the stumps of the trees.  Plaintiff alleges that defendants have met with plaintiff’s representative to discuss the chopping of the trees, and defendant Eddy Allahverdian apologized and acknowledged the chopping was not authorized, but refused to resolve the matter without judicial intervention.  Plaintiff alleges that defendants’ conduct constituted an unlawful trespass to plaintiff’s property and negligence, and seeks damages. 
Defendants have filed a cross-complaint against plaintiff Petrosyan, alleging that the parties’ real properties are subject to CC&Rs pursuant to which no building, tree or shrub that might obstruct the view from any lot, shall be higher than fifteen feet above the ground level of any lot, but that there are multiple trees on the Petrosyan property that exceed the maximum height allowance. It is also alleged that the failure of cross-defendant to properly maintain the trees on the Petrosyan property has caused an obstruction to the view from cross-complainants’ property and interfered with the comfortable enjoyment of the property.   The cross-complaint alleges causes of action for breach of contract, private nuisance, declaratory relief, and injunctive relief. 
ANALYSIS:
CCP ; 473 (a)(1) provides that “The court may..., in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading...”  The court’s discretion should usually be exercised liberally to permit amendment of pleadings.    Nestle v. City of Santa Monica (1971) 6 Cal.3d 920, 939.  This is especially true where the motion to amend is timely made and the granting of the motion will not prejudice the opposing party.  Morgan v. Superior Court (1959, 2nd Dist.) 172 Cal.App.2d 527, 530.  
The Second District in Record v. Reason (1999) 73 Cal.App.4th 472, set forth the standard for reviewing the trial court’s discretionary determination on a motion to amend:
“"[T]he trial court has wide discretion in allowing the amendment of any pleading [citations], [and] as a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown. [Citations.]" (Bedolla v. Logan & Frazer (1975) 52 Cal. App. 3d 118, 135-136 [125 Cal. Rptr. 59].)”
Record, at 486.
The motion seeks to amend the pleading to add claims for fraud and other statutory claims relating to the cutting of the trees, arguing that facts supporting the serious fraud claims were only developed once the deposition of the gardener who performed the work was taken, and his story compared to that of defendants in their depositions.  The motion also seeks to add causes of action regarding the validity of the CC&Rs referenced in the cross-complaint.  The amendment also in part seeks to supplement the pleading, specifically to allege facts which have developed since the original pleading was filed concerning the lack of regrowth over time of the subject trees.  
Under CCP ; 464, which permits the filing of supplemental pleadings:
“(a)  The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer.”
This determination is within the discretion of the court.   The Second District has observed: “It is the general policy that courts should exercise liberality in permitting the filing of supplemental pleadings when the alleged ‘occurring-after’ facts are pertinent to the case.”  Flood v. Simpson (1975) 45 Cal.App.3d 644, 647, citations omitted.   A motion to file a supplemental pleading “is addressed to the sound legal discretion of the court, and its ruling will not be disturbed on appeal in the absence of a showing of manifest abuse of discretion.”  Id.   A supplemental pleading cannot be used to allege facts constituting an entirely new cause of action. Id.   
In this case, it appears that the amendments are sought to include in the pleading newly discovered evidence from the deposition of the gardener who trimmed the trees, and responses to discovery requests, and to appropriately seek all statutory damages available and state a claim for intentional fraud.   The proposed SAC also seeks to more clearly allege the permanent nature of the damages to the trees, as the trees have evidently not regrown since the incident as claimed to have been expected by defendants.  The pleading also seeks to allege respondent superior liability for the conduct of the tree trimmer hired and instructed by defendants based on his deposition testimony.  
A review of the redlined document shows that almost the entire document is highlighted, suggesting the pleading is basically an entirely new pleading.  
However, it does not appear that the basic nature of the allegations are changed, that defendants had the trees trimmed indicating that the trees would only be slightly trimmed, when they were trimmed to stumps, jeopardizing the viability of the trees, in order to preserve defendants’ view from their property.  The supplemental facts concerning the condition of the trees over the time since this action was filed, do not create some new cause of action which did not exist at the time the pleading was originally filed, but appear to appropriately supplement the original facts and theories of liability.   
While it is not ideal that such a wholesale revision of the pleading take place years after the action was originally filed, it appears that the court is familiar through discovery motions with the circumstances that defendants had not immediately identified the gardener who performed the tree trimming, so that plaintiff’s delay in being able to pursue discovery from that source is excusable delay.  
The declaration of counsel for plaintiff also now explains why there has been a delay since the deposition was taken in March of 2020, as counsel has attempted to work out with previous and current counsel for defendant some of these issues without need for court intervention.  The court file, in fact, shows that a previous motion had been filed, but was not opposed and was then taken off calendar.   There is no obvious prejudice to defendants from any delay in the clarifications made to the pleading, particularly as the trial is not set until November, and sufficient time remains for defendants to conduct any necessary discovery to meet the new damage claims and fraud allegations.
It is held that absent prejudice, delay alone is not a sufficient ground for denial of leave to amend, and where no prejudice is shown, “the liberal rule of allowance prevails.”  Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.   
Defendants in opposition argue that they will be prejudiced by having litigated this matter for four years based on the original complaint, but will now be faced with a completely new set of facts to defend against.   Defendants also argue that most of the new causes of action are not based on any new facts but should have been alleged in the original complaint.  
To the extent the causes of action are based on the same facts as alleged in the original complaint, it appears that this would support the conclusion that defendants will not be prejudiced by having to address those same factual scenarios framed in terms of different theories of liability.  To the extent the causes of action, such as fraud, are based on newly discovered facts, which could not have been discovered previously, the prejudice urged seems to be that defendants will now have to perform further discovery to meet those allegations.  That is not the type of prejudice which would ordinarily justify denying leave to amend, particularly when the trial date is many months away, and any prejudice could be addressed by continuing the trial and discovery cut off dates, and permitting the parties the opportunity to address the matter fully on its merits.  There does not appear to be any prejudice such as loss of evidence, or some strategic advantage for plaintiff to the disadvantage of defendants due to any delay.  It has been held, for example, that it is not an abuse of discretion to deny leave to amend where a plaintiff knew for several months of the facts underlying the claim but failed to amend until after summary judgment had been entered against it (Fisher v. Larsen (1982) 138 Cal.App.3d 627, 649), or where there is a strong showing that dilatory amendment is the result of “legal gamesmanship.” Green v. Rancho Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th 686, 693.  
 No such prejudice with respect to litigating the merits of this matter has occurred here.
Defendants also argue that leave should be denied because permitting leave would be futile, as, for example, the causes of action are not sufficiently stated, the fraud claim is not alleged with particularity, and the request for attorney’s fees is subject to a motion to strike. 
However, it is recognized that a court is permitted to deny leave to amend based on the merits of a pleading only if it is clear as a matter of law that there is no liability.   Pomona College v. Superior Court (1996, 2nd Dist.) 45 Cal.App.4th 1716, 1721.   Even where the proposed legal theory is a novel one, “the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.”   Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048, quoting California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.   With the trial date months away, there is sufficient time for defendants to challenge the pleading through demurrer or motion to strike.  
The potential prejudice here can be easily addressed with careful case management, and the motion accordingly is granted. 
Defendants in the opposition request that if the court grants the motion, it continue the November 1, 2021 trial date to allow defendants to conduct further discovery, possibly file a demurrer and motion to strike, and to evaluate whether a motion for summary judgment is proper.   
As noted above, the court may permit amendment, “upon any terms as may be just.” CCP ; 473(a)(1). 
CCP ; 473(a)(2) specifically provides:
“When it appears to the satisfaction of the court that the amendment renders it necessary, the court may postpone the trial, and may, when the postponement will by the amendment be rendered necessary, require, as a condition to the amendment, the payment to the adverse party of any costs as may be just.”
The court will discuss at the hearing whether it will postpone the trial, or reserve this issue for future motion, if necessary. 
RULING:
Plaintiff Alen Petrosyan’s Motion for Leave to File Second Amended Complaint is GRANTED. 
Plaintiff is ordered to efile a separate, signed, copy of the Second Amended Complaint on eCourt by 4:30 p.m. this date.   The SAC will be considered filed and served as of the date the pleading is efiled.  
Pursuant to CCP ; 473(a)(2), and it appearing to the satisfaction of the Court that the amendment renders it necessary, the Court will postpone the trial to March 28, 2022.  All discovery and other deadlines to be measured from the new trial date.  The FSC is set for March 17, 2022 at 9:00 a.m.  The OSC Re MSC is set for November 1, 2021 at 8:30 a.m.  A Status Conference Re Mediation and Discovery is set for August 25, 2021 at 8:30 a.m.
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES
Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance.  Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00.   Counsel and parties (including self-represented litigants) are encouraged not to personally appear unless they have obtained advance permission of the Court.  Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff.  If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative. 


Case Number: ****9012    Hearing Date: February 28, 2020    Dept: NCD

TENTAITVE RULING

Calendar: 21

Date: 2/28/20

Case No: BC 669012 Trial Date: None Set

Case Name: Petrosyan v. Allahverdian, et al.

MOTION FOR TERMINATING SANCTION

Moving Party: Plaintiff Alen Petrosyan

Responding Party: Defendants Eddy Allahverdian and Maria Allahverdian

16/+5-day lapse (CCP ;1005): No

RELIEF REQUESTED:

Order granting monetary and terminating sanctions

FACTUAL BACKGROUND:

Plaintiff Alen Petroysyan alleges that he is the owner of property located at 652 Robin Glen in Glendale and that defendants Eddy Allahverdian and Maria Allahverdian, the owners of property located at 658 Robin Glen Drive in Glendale, in June of 2017 hired gardeners and instructed them to chop down the trees on plaintiff’s land for defendants’ view. Plaintiff alleges that plaintiff consented to a small trim of certain trees on plaintiff’s land, of six inches, but defendants’ gardeners, under the instruction of defendants, completely and totally chopped the trees and foliage on plaintiff’s land to nearly the stumps of the trees. Plaintiff alleges that defendants have met with plaintiff’s representative to discuss the chopping of the trees, and defendant Eddy Allahverdian apologized and acknowledged the chopping was not authorized but refused to resolve the matter without judicial intervention. Plaintiff alleges that defendants’ conduct constituted an unlawful trespass to plaintiff’s property and negligence and seeks damages.

Defendants have filed a cross-complaint against plaintiff Petrosyan, alleging that the parties’ real properties are subject to CC&Rs pursuant to which no building, tree or shrub that might obstruct the view from any lot, shall be higher than fifteen feet above the ground level of any lot, but that there are multiple trees on the Petrosyan property that exceed the maximum height allowance. It is also alleged that the failure of cross-defendant to properly maintain the trees on the Petrosyan property has caused an obstruction to the view from cross-complainants’ property and interfered with the comfortable enjoyment of the property. The cross-complaint alleges causes of action for breach of contract, private nuisance, declaratory relief, and injunctive relief.

ANALYSIS:

Procedural

Insufficient Notice

The opposition argues that the notice of motion violates CCP ; 1005 (b), as it was not served and filed at least 16 days before the hearing. The reply concedes that the motion, originally noticed to be heard on January 3, 2020, was filed and served only fifteen days prior to the hearing, or one day late.

Under CCP section 1005(b):

“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.”

The subdivision provides that “the court, or a judge thereof, may prescribe a shorter time.”

The reply argues that there has been no prejudice from this irregularity. It does appear that defendants have prepared an opposition on the merits, and that due to the continuance of the hearing on the matter, has had sufficient time to consider the matter on its merits to address it at hearing.

It is held that insufficient or defective notice may be waived if opposing counsel appears at the hearing and argues the merits of the motion. Alliance Bank v. Murray (1984, 2nd Dist) 161 Cal.App.3d 1, 7; Carlton v. Quint (2000, 2nd Dist.) 77 Cal.App.4th 690, 697. The court could decline to consider the motion as not brought on sufficient notice, but finds that any objection to the sufficiency of the notice has been waived.

Substantive

Plaintiff seeks an order granting monetary and terminating sanctions, and entering the default of defendants in this action, arguing that defendants have engaged in discovery abuse and spoliation of evidence. Specifically, plaintiff argues that defendants initially claimed in verified discovery responses that defendants simply found the gardener who performed the tree trimming on the street, and did not know his name and had no way of locating him, and Maria Allahverdia testified to that in her deposition. However, in the deposition of Eddy Allahverdian, defendant testified that the gardener had in fact worked for defendant for years and that he had his contact information on his cell phone.

Plaintiff submits Responses of Eddy Allahverdian to Special Interrogatories but does not appear to have submitted the interrogatories themselves, which are not repeated in the responses. The memorandum indicates the interrogatories requested identifying information for any person who was present or a witness to the incident at issue, which interrogatories defined “identify” to include a responsive individual’s telephone number. [Memo. p. 6].

The responses evidently at issue state, “Thomas whose surname and address are not known.” [Ex. D]. This is extremely sloppy, as on the record before the court, it cannot be determined that the responses were not appropriate, as it is possible that defendant did not know Thomas’ surname and address, and there is no affirmative representation that a phone number is not known, and no way for the court to confirm that the Special Interrogatories expressly requested phone numbers.

In any case, plaintiff also submits the deposition transcript of defendant Eddy Allahverdian, without highlighting the relevant portions. Plaintiff evidently relies on testimony in which it was stated that “Thomas” cut the trees at issue, has been trimming the trees “Since 2005 on an as-needed basis,” and that the deponent has Thomas’ phone number in his cell phone. [Ex C., Allahverdian Depo. p. 47:15- 48:22]. Counsel conducting the deposition then stated on the record:

“Counsel, I’m going to make an instruction under spoliation of evidence that evidence be preserved. We have testimony—sworn testimony that the evidence exists now. It’s relevant to this case. It’s producible, and I’d like to get a copy of it, and prior to getting a copy of it, I’m instructing that the evidence be preserved.

[Ex. C, Allahverdian Depo. p. 48:23-49:5].

Evidently, although plaintiff has requested through meet and confer that defendants provide the telephone number which “was explicitly called for and which [defendant] testified at his deposition he has had since 2005,” this information has not been voluntarily provided. [Martin Decl. ¶ 2, Ex. A].

The motion argues that terminating sanctions are appropriate here under CCP ; 2023.030, which authorizes sanctions for “misuse of the discovery process,” and that the imposition of sanctions does not require violation of a prior court order, but misuse of discovery includes, “[f]ailing to respond or submit to an authorized method of discovery,” “[m]aking, without substantial justification, and unmeritorious objection to discovery,” and “[m]aking an evasive response to discovery.” CCP ; 2023.010 (d), (e), (f).

Plaintiff relies on Cedars Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, in which the California Supreme Court considered the issue of whether to recognize an independent tort for spoliation of evidence, which it declined to do in a situation where “the spoliation victim knows or should have known of the alleged spoliation before the trial or other decision on the merits of the underlying action.” Cedars Sinai, at 17-18. The Court reasoned that in such a case, a party had available to it many other remedies, including the evidentiary inferences permitted by jury instructions concerning willful suppression of evidence, and the broad range of sanctions from conduct amounting to “misuse of the discovery process” in the discovery statutes. Cedars Sinai, at 11-12.

Under the court’s inherent equity power, derived from the state constitution, including supervisory, and administrative powers, and the court’s inherent power to control litigation, it has been recognized that a court may issue evidentiary or a terminating sanctions where there has been deliberate, egregious misconduct by a plaintiff, even where there has been no violation of a court order. See Stephen Slesinger, Inc. v. The Walt Disney Co. (2007) 155 Cal.App.4th 736, 763; Do It Urself Moving & Storage v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36 (“Here, it is conceded that plaintiffs are unable to provide the promised items of discovery. Under the circumstances of this case, a warning to plaintiffs, in the form of a formal order to comply, would have been futile.”).

The standard to obtain a terminating sanction is extremely high. In Stephen Slesinger, the Second District cautioned that “dismissal is always a drastic remedy to be employed only in the rarest of circumstances.” Stephen Slesinger at 764, italics in original.

The court then held that under certain circumstances, misconduct could warrant dismissal:

“we hold only that when the plaintiff has engaged in misconduct during the course of the litigation that it deliberate egregious, and that renders any remedy short of dismissal inadequate to preserve the fairness of the trial, the trial court has the inherent power to dismiss the action.”

Stephen Slesinger, at 764.

In making this determination, the trial court should consider all relevant circumstances:

“The decision whether to exercise the inherent power to dismiss requires consideration of all relevant circumstances, including the nature of the misconduct (which must be deliberate and egregious, but may or may not violate a prior court order), the strong preference for adjudicating claims on the merits, the integrity of the court as an institution of justice, the effect of the misconduct on a fair resolution of the case, and the availability of other sanctions to cure the harm.”

Stephen Slesinger, at 764.

The trial court’s exercise of this power is reviewed for abuse of discretion and will be reversed “only for manifest abuse exceeding the bounds of reasons.” Stephen Slesinger, at 765.

The circumstances in Stephen Slesinger involved a lawsuit by a corporation, SSI, the holder of the copyright rights in the A.A. Milne Winnie-the-Pooh books, against The Walt Disney Company, for alleged irregularities in accounting for and paying for exploitation of the Winnie-the-Pooh rights under an agreement between the parties. SSI engaged a private investigator who obtained confidential Disney documents by trespassing on and breaking into Disney office buildings and secure trash receptacles. SSI also attempted to alter copies of the documents obtained after receiving them from its investigator to delete any reference to their confidentiality. After extensive hearing on the matter, the trial court concluded that SSI’s conduct was deliberate, egregious, and that the only fair resolution of the matter was to impose a terminating sanction.

In Do It Urself, the circumstances involved an accounting audit which plaintiff had assured the court and opposing party several times would be timely completed, obtaining trial continuances based on this promise. The audit was not ever completed, and plaintiff ultimately indicated it could not be completed. Plaintiff also failed to provide any backup documentation to the portion of the report which had been completed. The Second District upheld the imposition of evidentiary sanctions, precluding plaintiff from introducing the withheld discovery, but reversed the granting of a motion for summary judgment based on those sanctions.

Plaintiff here argues that the damage done by defendants’ discovery abuse cannot be undone at this late stage, because defendant admitted to having the information at the deposition in October of 2019, and that if the gardener was beyond the reach of plaintiff then, he is most certainly gone now or his testimony “prepared” beyond usefulness. Plaintiff argues that a fair trial is now all but impossible.

Here, it is not even clearly established that there has been a misuse of the discovery process, as the court cannot review what the Special Interrogatories called for. This also appears to be a situation where the harm can be easily addressed by having the information turned over now, as there is no trial date set, so sufficient time to conduct discovery with respect to the witness, and plaintiff is in a position where it can bring up the failure to provide the information earlier, if appropriate, to the trier of fact, and permit the trier of fact to infer that an attempt to obstruct discovery suggests the evidence would not be favorable for defendants.

The court on this showing cannot find that there was any deliberate, egregious misconduct, which could not be addressed by means other than dismissal, as was clearly the case in Stephen Slesinger.

In addition, the dismissal sanction granted in Stephen Slesinger followed a full evidentiary hearing, eliminating any argument that the sanction had been imposed without “full procedural due process.” See Stephen Slesinger, at 761.

The Stephen Slesinger opinion also notes that the trial court had considered but rejected lesser sanctions, seemingly focusing on the nature of the harm in that case, in effect that the confidential information obtained improperly could not be “purged” from the minds of the parties who had obtained it, and that the trial court did not believe plaintiff would fully comply with any other remedial court order. See Slesinger, at 756. Here, there are no such effects from the alleged misconduct. No terminating sanctions are awarded.

The opposition seems to argue that the motion cannot be granted because defendants have not moved to compel further responses to discovery, and cannot do so now, as the time to do so has expired. As argued in the reply, this is a situation where plaintiff could not have known the interrogatory responses were incomplete until the deposition, and the argument ignores the case law cited in the moving papers which permits the court to grant relief even where no court order has been violated. It is a bit alarming that the opposition does not offer to provide the telephone number promptly. This issue will be discussed at the hearing, and the court will enter an order that the information be provided forthwith.

The motion also appears to seek monetary sanctions. However, the notice of motion does not clearly state against whom such sanctions are sought, there is no declaration submitted in support of any sanctions request, and the memorandum does not point to a statutory basis for recovery of sanctions.

CCP ; 2023.040 clearly requires that:

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

(Emphasis added).

The reply argues that plaintiff was not required to comply with the statute, as relief is sought based on equity. To the extent such fees are sought under the court’s equity power, this argument was rejected in Stephen Slesinger:

“In considering the availability of other sanctions, a trial court must be mindful that under Bauguess, its inherent authority to sanction for egregious misconduct does not include the power to award attorney fees to punish that misconduct. As we have discussed, Bauguess held that an award of attorney fees must be authorized by statute or contract.”

Stephen Slesinger, at 765, n. 19.

No such statutory or contractual authority is cited here, and the monetary sanctions requested are denied.

Defendant in the opposition seeks sanctions for the expense of opposing the motion. Although the motion should be for the most part denied, plaintiff appears to have been justified in bringing such a motion, and defendant’s conduct in continuing to fail to disclose the information has contributed to the necessity to bring and maintain the motion. No sanctions are awarded.

RULING:

The court in its discretion has reluctantly considered the motion, despite the fact it was admittedly not served or filed on proper notice.

Plaintiff Alen Petrosyan’s Motion for Terminating Sanctions is DENIED, as the court cannot find from the showing presented that the circumstances warrant the court exercising its inherent authority to impose the drastic sanction of termination. The court cannot find at this point that the misconduct in this case was deliberate or egregious such that it has rendered any remedy short of striking of the answer inadequate to preserve the fairness of the trial. The court instead orders that defendant Eddy Allehverdian produce the telephone number of “Thomas,” as reflected in the cell phone referenced in his deposition, within five days. While the court will entertain appropriate jury instructions concerning suppression of evidence, the relief sought is overly broad and is not proportionate to the dereliction, and does not seek to redress any harm to plaintiff which cannot be addressed by further discovery and investigation once the contact information for the witness is disclosed.

Monetary sanctions requested by both sides are DENIED.



Case Number: ****9012    Hearing Date: January 31, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 7

Case Number: BC 669012

Date: 1/31/20 Trial date: None Set

Case Name: Petrosyan v. Allahverdian, et al.

MOTION FOR SUMMARY JUDGMENT

(OR, in the Alternative, Summary Adjudication)

[CCP ; 437c; CRC 3.1350 et seq.]

Moving Party: Plaintiff Alen Petrosyan

Responding Party: Defendants Eddy Allahverdian and Maria Allahverdian

Relief Requested:

Summary judgment in favor of plaintiff on the First Amended Complaint

In the alternative, summary adjudication of issues

Causes of Action from First Amended Complaint

1) Trespass

2) Negligence

SUMMARY OF COMPLAINT:

Plaintiff Alen Petroysyan alleges that he is the owner of property located at 652 Robin Glen in Glendale and that defendants Eddy Allahverdian and Maria Allahverdian, the owners of property located at 658 Robin Glen Drive in Glendale, in June of 2017 hired gardeners and instructed them to chop down the trees on plaintiff’s land for defendants’ view. Plaintiff alleges that plaintiff consented to a small trim of certain trees on plaintiff’s land, of six inches, but defendants’ gardeners, under the instruction of defendants, completely and totally chopped the trees and foliage on plaintiff’s land to nearly the stumps of the trees. Plaintiff alleges that defendants have met with plaintiff’s representative to discuss the chopping of the trees, and defendant Eddy Allahverdian apologized and acknowledged the chopping was not authorized but refused to resolve the matter without judicial intervention. Plaintiff alleges that defendants’ conduct constituted an unlawful trespass to plaintiff’s property and negligence and seeks damages.

Defendants have filed a cross-complaint against plaintiff Petrosyan, alleging that the parties’ real properties are subject to CC&Rs pursuant to which no building, tree or shrub that might obstruct the view from any lot, shall be higher than fifteen feet above the ground level of any lot, but that there are multiple trees on the Petrosyan property that exceed the maximum height allowance. It is also alleged that the failure of cross-defendant to properly maintain the trees on the Petrosyan property has caused an obstruction to the view from cross-complainants’ property and interfered with the comfortable enjoyment of the property. The cross-complaint alleges causes of action for breach of contract, private nuisance, declaratory relief, and injunctive relief.

ANALYSIS:

Defendants argue in the opposition that the motion must be denied on the ground it was not brought on sufficient notice. Defendants argues that the moving papers here were filed on November 22, 2019, only 70 days before the hearing, and served on November 22, 2019, only 71 days prior to the hearing.

CCP ; 437c(a)(2) requires that a motion for summary judgment be brought on 75 days’ notice:

“Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for the hearing.”

With respect to the 75 days’ notice requirement, the requirement is held mandatory in the absence of a stipulation between the parties. The Second District has considered whether trial courts may shorten this time and concluded: “we hold that, in light of the express statutory language, trial courts do not have authority to shorten the minimum notice period for summary judgment hearings.” McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 118; See also Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 764 (“the Legislature did not…authorize a trial court to shorten the minimum notice period for hearings on summary judgment motions. Such discretionary language is notably absent from the statute. Moreover, the statutory language regarding minimum notice is mandatory, not directive.”) See also Cuff v. Grossmont Union High School District (2013) 221 Cal.App.4th 582, 595-596.

Here, the motion noticed a hearing date of January 31, 2020. Seventy-five days prior to this date was November 17, 2019, computing the time by counting backward from the hearing date, excluding the day of the hearing, as required under CCP ; 12c (a) (“Where any law requires an act to be performed no later than a specified number of days before a hearing date, the last day to perform that act shall be determined by counting backward from the hearing date, excluding the date of the hearing as provided by Section 12.”) November 17, 2019 was a Sunday, so that the notice period to provide “at least 75 days” notice actually expired prior to that date. The motion was filed on November 22, 2019, and the proof of service shows service was made by personal service on counsel on November 21, 2019, several days short of the 75-day notice period required under any calculation.

There does not appear to have been any stipulation between the parties to shorten time, and the court has no authority to, for example, continue the hearing date to cure this defect. See Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268 (the Second District holding 76-day notice given on mailed motion was invalid, so that at the noticed motion hearing, “the trial court had no authority to continue the hearing a mere four days. At that point, the notice period had to begin anew…The four-day continuance was a violation of due process and an abuse of discretion.”).

The court declines to consider the motion as not brought on sufficient notice.

(Even if the court were to consider the substance of the motion, it would have to be denied. The motion is brought by plaintiff, seeking summary judgment in plaintiff’s favor, but does not address the issue of damages. It is held that he summary judgment procedures obligate a plaintiff to prove each element of plaintiff’s cause of action, including damages. In Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084, the court of appeal expressly held that where issues of the calculation of damages remain to be determined, it is not appropriate to grant summary judgment:

Although we have determined that Blockbuster is liable to appellant, Code of Civil Procedure section 437c makes no provision for a partial summary judgment as to liability. Even summary adjudication may be granted only in limited instances. (Code Civ. Proc., ; 437c, subd. (f)(1).) Because issues of the calculation of damages apparently remain to be determined, it is not appropriate to grant summary judgment for appellant at this time. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1996) ¶ 10:40.1, p. 10-17 [summary judgment or adjudication improper where amount of damages raises factual issue].) The correct procedure below would have been a motion to bifurcate the issue of liability, which the parties could have tried upon the undisputed facts. (Code Civ. Proc., ; 598.) A decision on the issue of liability against the party on whom liability is sought to be imposed does not result in a judgment until the issue of damages is resolved.

Department of Industrial Relations, at 1097.

The motion also requests that the court determine that the evidence before it warrants punitive damages. Punitive damages may not be awarded on a motion for summary judgment. Haines v. Parra (1987) 193 Cal.App.3d 1553, 1560-1561. Finally, the “Issues” raised by the motion for summary adjudication are not addressed to, and do not appear to dispose of an entire cause of action, affirmative defense, a claim for damages, or issue of duty. See CCP ; 437c(f)(1) (“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”)).

RULING:

Plaintiff Alen Petrosyan’s Motion for Summary Judgment, or, in the Alternative, Summary Adjudication of Issues, is NOT CONSIDERED BY THE COURT.

The motion was not served on sufficient notice but was filed only 70 days prior to the date for hearing and served only 71 days prior to the time appointed for the hearing. Under CCP ; 437c(a)(2) “Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for the hearing.” This requirement is mandatory in the absence of a stipulation between the parties, and trial courts do not have authority to shorten the minimum notice period for summary judgment hearings. McMahon v. Superior Court (2003, 2nd Dist.) 106 Cal.App.4th 112, 118; Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 764; Cuff v. Grossmont Union High School District (2013) 221 Cal.App.4th 582, 595-596.



Case Number: ****9012    Hearing Date: January 17, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 23

Date: 1/17/19

Case No: BC 669012 Trial Date: None Set

Case Name: Petrosyan v. Allahverdian, et al.

DISCOVERY MOTIONS (3 Motions)

Moving Party: Plaintiff Alen Petrosyan

Responding Party: Defendants Eddy Allahverdian and Maria Alahverdian

RELIEF REQUESTED:

Responses to Form Interrogatories, Set One and Special Interrogatories, Set One

Responses to Request for Production of Documents, Set One

Order Deeming Request for Admissions (Set One) Admitted

CHRONOLOGY

Date Discovery served: November 15, 2018

Extension to Respond: May 10, 2019, without objection (Ex. G)

Date Responses served: NO RESPONSES SERVED

Date Motion served: May 15, 2019 Timely

ANALYSIS:

Interrogatories and Documents

The oppositions indicate that defendants served verified responses to the subject discovery on May 10, 2019, five days before the motions to compel were filed. The responses are attached to the oppositions and show service of verified responses by mail that date, which was within the agreed upon extended time to respond. [Ex. G]. This renders the motions moot, leaving only the issue of sanctions.

Requests for Admissions

Under CCP ; 2033.280 (a), a party who fails to serve a timely response to requests for admissions “waives any objection to the requests, including one based on privilege or on the protection for work product….” In addition, the requesting party may move for an order that “the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction....” CCP ; 2033.280(b). The Code specifies that, “The court shall make this order, unless it finds that the party to whom the requests for admission 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.” CCP ; 2033.280(c).

In this case, the opposition attaches a copy of the responses served on the agreed upon extended date, which are verified, without objections, and appear to be in substantial compliance with Section 2033.220. [See Ex. D].

Accordingly, the motion is denied, leaving the issue of sanctions.

Sanctions

With respect to Requests for Admissions, CCP ; 2033.280(c) provides:

“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.”

As argued in the opposition, it appears that the responses were served within the agreed upon time, on May 10, 2019. [Ex. D]. It also appears that counsel for defendants sent an email on May 10, 2019, advising that the discovery responses were being served that date. [Ex. E]. On May 14, 2019, another email was sent by counsel for defendants indicating that counsel had “checked” and responses were served by mail May 10 and should arrive shortly. [Ex. F]. The motion was filed the following day, just after noon.

It accordingly does not appear that the conduct of defendants necessitated the motion, as responses were served as agreed, but unfortunately took time to be delivered through the mail. No sanctions are awarded under the circumstances.

With respect to interrogatories, under CCP ; 2030.290(c), “The court shall impose a monetary sanction… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” A similar provision applies to document demands. See CCP ; 2031.300(c).

The motions here are moot, and would likely not have been granted, as the responses were served within the agreed upon extension to respond. No sanctions are awarded.

RULING:

Motion of Plaintiff Alen Petrosyan to Compel Responses to Form Interrogatories (Set One) and Special Interrogatories (Set One) is MOOT in light of the service of responses on May 10, 2019.

Monetary sanctions are DENIED.

Motion of Plaintiff Alen Petrosyan to Compel Responses to Requests for Production of Documents to Defendants Eddy Allahverdian and Maria Allahverdian is MOOT in light of the service of responses on May 10, 2019.

Monetary sanctions are DENIED.

Motion of Plaintiff Alen Petrosyan to Deem Request for Admissions (Set One) Admitted by Defendants Eddy Allahverdian and Maria Allahverdian is MOOT in light of the service of responses on May 10, 2019, before the filing of the motion. The court finds that in any case, the responses substantially comply with the provisions of CCP ; 2033.220.

Monetary sanctions are DENIED, as the responses were timely served, and responding parties did not necessitate the motion.



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