This case was last updated from Los Angeles County Superior Courts on 05/28/2021 at 11:34:05 (UTC).

AVA INC. VS AVRIL FIELDING

Case Summary

On 09/18/2019 AVA INC filed a Contract - Other Contract lawsuit against AVRIL FIELDING. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judges overseeing this case are RAMONA G. SEE and DEIRDRE HILL. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0827

  • Filing Date:

    09/18/2019

  • Case Status:

    Other

  • Case Type:

    Contract - Other Contract

  • Courthouse:

    Torrance Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RAMONA G. SEE

DEIRDRE HILL

 

Party Details

Plaintiffs and Cross Defendants

AVA INC. DBA RELIABLE ROOFING

NICK S.

ROES 1 TO 10

AVA INC. DBA RELIABLE ROOFING A CALIFORNIA CORPORATION

Defendant and Cross Plaintiff

FIELDING AVRIL

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorneys

HAGOPIAN SHANT

HAGOPIAN SHANT HAROUT

Defendant and Cross Plaintiff Attorney

BOWMAN STANLEY

 

Court Documents

Request for Dismissal

5/25/2021: Request for Dismissal

Case Management Statement

3/25/2021: Case Management Statement

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR ORDER DEEMING REQUESTS FOR ADMISSION AD...)

3/29/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR ORDER DEEMING REQUESTS FOR ADMISSION AD...)

Request for Refund / Order - REQUEST FOR REFUND

2/8/2021: Request for Refund / Order - REQUEST FOR REFUND

Proof of Service by Mail

1/19/2021: Proof of Service by Mail

Unknown - SECOND AMENDED CROSS-COMPLAINT FOR ELDER FINANCIAL ABUSE

12/18/2020: Unknown - SECOND AMENDED CROSS-COMPLAINT FOR ELDER FINANCIAL ABUSE

Declaration - DECLARATION OF SHANT H. HAGOPIAN, ESQ. RE: INABILITY TO COMPLY WITH MEET AND CONFER REQUIREMENT AND AUTOMATIC EXTENSION TO FILE DEMURRER AND MOTION TO STRIKE

10/21/2020: Declaration - DECLARATION OF SHANT H. HAGOPIAN, ESQ. RE: INABILITY TO COMPLY WITH MEET AND CONFER REQUIREMENT AND AUTOMATIC EXTENSION TO FILE DEMURRER AND MOTION TO STRIKE

Notice of Ruling

9/1/2020: Notice of Ruling

Motion for Order - MOTION FOR ORDER DEEMING REQUESTS FOR ADMISSION DEEMED ADMITTED

9/8/2020: Motion for Order - MOTION FOR ORDER DEEMING REQUESTS FOR ADMISSION DEEMED ADMITTED

Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

9/8/2020: Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10))

9/1/2020: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10))

Reply - CROSS-DEFENDANTS REPLY TO CROSS-COMPLAINANTS OPPOSITION TO DEMURRER

8/19/2020: Reply - CROSS-DEFENDANTS REPLY TO CROSS-COMPLAINANTS OPPOSITION TO DEMURRER

Notice of Case Reassignment and Order for Plaintiff to Give Notice

5/29/2020: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/27/2020

4/27/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/27/2020

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 03/23/2020

3/23/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 03/23/2020

Proof of Service by Mail

2/20/2020: Proof of Service by Mail

Case Management Statement

1/21/2020: Case Management Statement

Civil Case Cover Sheet

9/18/2019: Civil Case Cover Sheet

48 More Documents Available

 

Docket Entries

  • 05/25/2021
  • DocketRequest for Dismissal; Filed by Ava Inc. (Plaintiff)

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  • 03/29/2021
  • Docketat 08:30 AM in Department B; Hearing on Motion to Compel Discovery (not "Further Discovery") - Held - Motion Denied

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  • 03/29/2021
  • Docketat 08:30 AM in Department B; Case Management Conference - Held

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  • 03/29/2021
  • Docketat 08:30 AM in Department B; Hearing on Motion to Compel Discovery (not "Further Discovery") - Held - Motion Denied

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  • 03/29/2021
  • Docketat 08:30 AM in Department B; Hearing on Motion for Order (Deeming Requests for Admission Admitted) - Held - Motion Denied

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  • 03/29/2021
  • Docketat 08:30 AM in Department B; Hearing on Motion to Compel Discovery (not "Further Discovery") - Held - Motion Denied

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  • 03/29/2021
  • DocketNotice of Ruling; Filed by Ava Inc. (Plaintiff)

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  • 03/29/2021
  • DocketMinute Order ( (Hearing on Motion for Order Deeming Requests for Admission Ad...)); Filed by Clerk

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  • 03/25/2021
  • DocketCase Management Statement; Filed by Ava Inc. (Plaintiff)

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  • 03/24/2021
  • DocketReply (to Cross-Complainant's Opposition); Filed by Ava Inc. (Plaintiff)

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64 More Docket Entries
  • 01/06/2020
  • DocketCross-Complaint (for Elder Abuse; Fraud and Rescission of Contract); Filed by Avril Fielding (Defendant)

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  • 01/06/2020
  • DocketAnswer (to Complaint); Filed by Avril Fielding (Defendant)

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  • 11/22/2019
  • Docketat 08:30 AM in Department M, Deirdre Hill, Presiding; Order to Show Cause Re: Failure to File Proof of Service - Not Held - Vacated by Court

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  • 11/12/2019
  • DocketNotice and Acknowledgment of Receipt; Filed by Ava Inc. (Plaintiff)

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  • 09/25/2019
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk

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  • 09/25/2019
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 09/18/2019
  • DocketCivil Case Cover Sheet; Filed by Ava Inc. (Plaintiff)

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  • 09/18/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 09/18/2019
  • DocketSummons (on Complaint); Filed by Ava Inc. (Plaintiff)

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  • 09/18/2019
  • DocketComplaint; Filed by Ava Inc. (Plaintiff)

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Tentative Rulings

Case Number: 19TRCV00827    Hearing Date: March 29, 2021    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Monday, March 29, 2021

Department B Calendar No. 4

PROCEEDINGS

Ava Inc. v. Avril Fielding, et al.

19TRCV00827

  1. Ava Inc.’s Motion to Compel Responses to Form Interrogatories, Set One, and for Sanctions

  2. Ava Inc.’s Motion to Compel Responses to Special Interrogatories, Set One, and for Sanctions

  3. Ava Inc.’s Motion to Compel Responses to Demand for Production of Documents, Set One, and for Sanctions

  4. Ava Inc.’s Motion for Order Deeming Requests for Admissions Admitted, and for Sanctions

    TENTATIVE RULING

    Ava Inc.’s Motions to Compel Responses to Form Interrogatories, Special Interrogatories, and Demand for Production of Documents and Motion to Deem Requests for Admissions Admitted are deemed moot, in part, and denied, in part. Ava Inc.’s requests for monetary sanctions are granted.

    Background

    Plaintiff filed its Complaint on September 18, 2019. Plaintiff alleges the following facts. Plaintiff provided construction and home improvement services for Defendant and Defendant did not pay for those services. Plaintiff recorded a mechanics’ lien. Plaintiff alleged the following causes of action: 1. Breach of Contract; 2. Breach of the Implied Covenant of Good Faith and Fair Dealing; 3. Goods and Services Rendered; 4. Open Book Account; 5. Foreclosure of Mechanic’s Lien. On December 18, 2020, Defendant filed a Cross-Complaint contending that additional repairs were not authorized and that Plaintiff took advantage of an elder. Cross-Complainant alleged causes of action for: (1) Elder Abuse; (2) Fraud; (3) Rescission. Cross-Defendant’s demurrer was sustained and Cross-Complainant subsequently filed a First Amended Cross-Complaint and Second Amended Cross-Complaint. The Second Amended Cross-Complaint alleged causes of action for (1) Elder Abuse; (2) Fraud; (3) Cancellation of Written Instrument.

Motions to Compel and Motion to Deem Requests for Admissions Admitted

CCP § 2030.290 states: “If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply…The party propounding the interrogatories may move for an order compelling response to the interrogatories.” (CCP § 2030.290(b).)

CCP § 2031.300 states: “If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: The party making the demand may move for an order compelling response to the demand.” (CCP § 2031.300(b)).

CCP § 2033.280(b) states: “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).” (CCP § 2033.280(b))

On May 11, 2020, Plaintiff/Cross-Defendant propounded its Form Interrogatories, Set One, Special Interrogatories, Set One, Demand for Production of Documents, Set One, and Requests for Admission, Set One on Defendant/Cross-Complainant. Defendant’s responses were due on June 16, 2020. Defendant failed to serve timely responses to the subject discovery requests. (Declarations, Shant H. Hagopian, ¶¶ 4-9).

On March 23, 2021, Defendant’s counsel filed and served a declaration stating that the responses to these discovery requests were served on March 22, 2021. (Declaration, Stanley Bowman, ¶2.) Thus, the motions to compel responses to Form Interrogatories, Set One, Special Interrogatories, Set One, and Demand for Production of Documents, Set One are deemed moot. The motion to deem Requests for Admissions admitted is denied.

Sanctions

Sanctions are awarded in favor of moving party because opposing party only provided responses after the motions were filed. Cal. Rules of Court, Rule 3.1348(a). In addition, sanctions are mandatory pursuant to CCP § 2033.280(c).

The Court notes that Cross-Defendant requested the sum of $6,240 in sanctions, plus $247 in costs. The Court reduces the amount imposed and awards sanctions in favor of Cross-Defendant in the following manner: 7 hours to prepare and appear x $300/hour ($2,100.00), plus 4 filing fees of $61.75 each ($247) = TOTAL: $2,347.00.

Defendant/Cross-Complainant Avril Fielding and his counsel of record, Stanley D. Bowman, jointly and severally, are ordered to pay sanctions in the total amount of $2,347.00 payable to moving party within 30 days of this date.

Plaintiff/Cross-Defendant is ordered to give notice of this ruling.

Case Number: 19TRCV00827    Hearing Date: September 01, 2020    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Tuesday, September 1, 2020 Department B Calendar No. 10

PROCEEDINGS

Ava Inc. v. Avril Fielding, et al.

19TRCV00827

  1. Ava Inc.’s Demurrer to Cross-Complaint

  2. Ava Inc.’s Motion to Strike Portions of Cross-Complaint

    TENTATIVE RULING

    Ava Inc.’s Demurrer to Cross-Complaint is sustained with 20 days leave to amend, in part, and without leave to amend, in part.

    Ava Inc.’s Motion to Strike Portions of Cross-Complaint is moot.

    Meet and Confer

    Cross-Defendant filed meet and confer declarations in sufficient compliance with CCP §§ 430.41 and 435.5. (Decl., Shant Hagopian, ¶¶ 6-7.)

    Request for Judicial Notice

    Cross-Defendant’s request for judicial notice of the Complaint is granted pursuant to Evid. Code § 452(d).

    Demurrer

    A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.) Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Cross-Defendant demurs to the Cross-Complaint and each cause of action therein.

First Cause of Action for Elder Abuse

Cross-Defendant’s demurrer to the first cause of action for Elder Abuse is sustained with 20 days leave to amend. Cross-Complainant fails to state facts sufficient to constitute a cause of action.

Welf. & Inst. Code, § 15610.30 states, in relevant part:

“(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.

(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.”

Pleading a claim for elder abuse requires specific facts of intentional or, at a minimum, reckless conduct. See, Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 338. Here, Cross-Complainant fails to state facts to demonstrate that Cross-Defendant engaged in acts of taking, secreting, appropriating, obtaining, or retaining the real or personal property of Cross-Complainant. Cross-Complainant’s allegations consist of contentions that Cross-Defendant induced Cross-Complainant to enter into a home repair contract with false representations, and that Cross-Defendant attempted to charge Cross-Complainant an excessive amount for the work. (Cross-Complaint, ¶¶ 8-10, 15, 16,) However, there are no facts to show that Cross-Defendant actually took any property from Cross-Complainant, i.e., it does not appear that any money was ever paid by Cross-Complainant to Cross-Defendant.

The only allegation of a “taking” appears to be based on the recording of the Mechanic’s Lien. Cross-Complainant alleges: “As a direct and proximate cause of Cross-Defendant’s wrongful conduct, Cross-Complaint has been deprived of the use of her real property to obtain a loan necessary to complete the remodeling of her home and the ability to obtain a reverse mortgage in an amount according to proof.” (Cross-Complaint, ¶ 19.) It appears here that Cross-Complainant is attempting to allege that, because of the existence of the Mechanic’s Lien, Cross-Complainant has been unable to obtain a reverse mortgage. Thus, Cross-Complainant equates the recordation of the Mechanic’s Lien as a taking or retention of real property. However, the recordation of a Mechanic’s Lien is absolutely privileged pursuant to CC § 47(b). “If the publication has a reasonable relation to the action and is permitted by law, the absolute privilege attaches …. Applying this reasoning to the instant case, it must be concluded that the filing of a claim of mechanic's lien in conjunction with a judicial proceeding to enforce it is privileged within the meaning of Civil Code section 47, subdivision 2.” Frank Pisano & Associates v. Taggart (1972) 29 Cal.App.3d 1, 25 (internal citation omitted). Similarly, here, the publication is reasonably related to the action and permitted by law under Civ. Code § 8400 et seq.

Therefore, Defendant’s demurrer to the first cause of action is sustained with 20 days leave to amend.

Second Cause of Action for Fraud

Cross-Defendant’s demurrer to the second cause of action is sustained with 20 days leave to amend. Cross-Complainant fails to state facts sufficient to constitute a cause of action.

“A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.” Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.

“Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.” Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157. Plaintiff must state facts which “show how, when, where, to whom, and by what means the representations were tendered.” Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. Additionally, if plaintiff alleges fraud against a corporation, plaintiff must “allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” Id.

Here, the fraud claim appears to be premised upon several representations made by Cross-Defendant as to the proposal for the repair project. First, Cross-Complainant has failed to allege specific facts as to how and by what means the alleged representations were made. As to certain representations, Cross-Complainant has not alleged who made the representations identifying the individuals simply as Roe 1 and Roe 2. In addition, as to certain representations, such as that Cross-Complainant “did good work at a very reasonable price” and that “Cross-Complainant was getting a very good contract price,” (Cross-Complaint, ¶¶ 9, 23) these are not actionable misrepresentations but merely statements of opinion. “The law is quite clear that expressions of opinion are not generally treated as representations of fact, and thus are not grounds for a misrepresentation cause of action.” Neu-Visions Sports, Inc. v. Soren/McAdam/Bartells (2000) 86 Cal.App.4th 303, 308.

Therefore, the demurrer to the second cause of action is sustained with 20 days leave to amend.

Third Cause of Action for Rescission

Cross-Complainant’s demurrer is sustained without leave to amend. However, 20 days leave to amend is provided to allow Cross-Complainant to allege a cause of action that would support the remedy of rescission or to allege the factual basis for rescission that would support this remedy within the already alleged causes of action.

Civ. Code, § 1689 states, in relevant part:

“(b) A party to a contract may rescind the contract in the following cases:

(1) If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party.

(2) If the consideration for the obligation of the rescinding party fails, in whole or in part, through the fault of the party as to whom he rescinds.

(3) If the consideration for the obligation of the rescinding party becomes entirely void from any cause.

(4) If the consideration for the obligation of the rescinding party, before it is rendered to him, fails in a material respect from any cause.

(5) If the contract is unlawful for causes which do not appear in its terms or conditions, and the parties are not equally at fault.

(6) If the public interest will be prejudiced by permitting the contract to stand.

(7) Under the circumstances provided for in Sections 39, 1533, 1566, 1785,1 1789,2 1930 and 2314 of this code, Section 2470 of the Corporations Code,3 Sections 331, 338, 359, 447, 1904 and 2030 of the Insurance Code or any other statute providing for rescission.”

However, “[r]escission is not a cause of action; it is a remedy.” Nakash v. Superior Court (1987) 196 Cal.App.3d 59, 70. Therefore, the demurrer to this “cause of action” is sustained without leave to amend.

Motion to Strike

Cross-Defendant’s Motion to Strike is now moot upon the sustaining of the demurrer.

Cross-Defendant is ordered to give notice of this ruling.

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