This case was last updated from Los Angeles County Superior Courts on 07/01/2019 at 01:05:10 (UTC).

BEVERLY HILLS DIALYSIS PARTNERSHIP VS UNIFIED REAL ESTATE I

Case Summary

On 01/17/2018 BEVERLY HILLS DIALYSIS PARTNERSHIP filed a Contract - Other Contract lawsuit against UNIFIED REAL ESTATE I. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DALILA CORRAL LYONS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0725

  • Filing Date:

    01/17/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DALILA CORRAL LYONS

 

Party Details

Petitioners, Plaintiffs and Cross Defendants

BERVERLY HILLS DIALYSIS PARTNERSHIP

BEVERLY HILLS DIALYSIS PARTNERSHIP

Respondents, Defendants and Cross Plaintiffs

UNIFIED REAL ESTATE INVESTMENTS LLC

DOES 1 TO 25

Not Classified By Court

STONE RICHARD A.

Attorney/Law Firm Details

Petitioner and Plaintiff Attorney

LEWIS JEFFREY

Defendant and Respondent Attorneys

ROBINS KAPLAN LLP

CHRISTOPHER S. REEDER ATTNY AT LAW

BLOCH ELAN

Cross Plaintiff Attorney

REEDER CHRISTOPHER S.

 

Court Documents

EX PARTE APPLICATION BY PLAINTIFF FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE ISSUANCE OF A PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF JEFFREY LEW

8/21/2018: EX PARTE APPLICATION BY PLAINTIFF FOR A TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE ISSUANCE OF A PRELIMINARY INJUNCTION; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION OF JEFFREY LEW

UNIFIED REAL ESTATE IN VESTMENTS, LLC'S OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER

8/21/2018: UNIFIED REAL ESTATE IN VESTMENTS, LLC'S OPPOSITION TO APPLICATION FOR TEMPORARY RESTRAINING ORDER

Request for Judicial Notice

11/14/2018: Request for Judicial Notice

Opposition

11/14/2018: Opposition

Motion to Compel Further Discovery Responses

11/26/2018: Motion to Compel Further Discovery Responses

Minute Order

1/2/2019: Minute Order

Stipulation

1/9/2019: Stipulation

Minute Order

4/18/2019: Minute Order

Status Report

5/9/2019: Status Report

Minute Order

5/14/2019: Minute Order

Status Report

5/31/2019: Status Report

Order

6/6/2019: Order

Certificate of Mailing for

6/6/2019: Certificate of Mailing for

Minute Order

5/7/2018: Minute Order

CASE MANAGEMENT ORDER

5/7/2018: CASE MANAGEMENT ORDER

ANSWER TO CROSS-COMPLAINT

4/26/2018: ANSWER TO CROSS-COMPLAINT

SUBSTITUTION OF ATTORNEY

4/10/2018: SUBSTITUTION OF ATTORNEY

ANSWER TO COMPLAINT

3/13/2018: ANSWER TO COMPLAINT

44 More Documents Available

 

Docket Entries

  • 06/27/2019
  • at 3:00 PM in Department 20, Dalila Corral Lyons, Presiding; Non-Appearance Case Review (of Plaintiff's Status Report reSettlement) - Not Held - Advanced and Vacated

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  • 06/07/2019
  • Notice ( of Entry of Order); Filed by Beverly Hills Dialysis Partnership (Plaintiff)

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  • 06/06/2019
  • at 5:00 PM in Department 20, Dalila Corral Lyons, Presiding; Court Order

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  • 06/06/2019
  • Order (Appointing Discovery Referee); Filed by Beverly Hills Dialysis Partnership (Plaintiff)

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  • 06/06/2019
  • Certificate of Mailing for (Minute Order (COURT ORDER - REGARDING ORDER APPOINTING REFEREE:) of 06/06/2019 and a copy of "Order Appointing Referee" is sent along with a copy of the minute order, dated: June 6, 2019); Filed by Clerk

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  • 06/06/2019
  • Minute Order ( (COURT ORDER - REGARDING ORDER APPOINTING REFEREE:)); Filed by Clerk

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  • 06/05/2019
  • Response (to Plaintiff's Objection to May 31, 2019 Status Report Filing); Filed by Unified Real Estate Investments, LLC (Defendant)

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  • 06/04/2019
  • Objection ( to Status Report); Filed by Beverly Hills Dialysis Partnership (Plaintiff)

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  • 05/31/2019
  • at 3:00 PM in Department 20, Dalila Corral Lyons, Presiding; Non-Appearance Case Review (of Notice of Settlementand/or Joint Status Report regarding Settlementand/or jointly proposed discovery referee names)

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  • 05/31/2019
  • Status Report (Re: Post-Mediation); Filed by Unified Real Estate Investments, LLC (Defendant)

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87 More Docket Entries
  • 03/13/2018
  • Cross-Complaint; Filed by Unified Real Estate Investments, LLC (Cross-Complainant)

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  • 03/13/2018
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 03/13/2018
  • Cross-Complaint; Filed by Unified Real Estate Investments, LLC (Defendant)

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  • 03/13/2018
  • UNIFIED REAL ESTATE INVESTMENTS, LLC'S CROSS-COMPLAINT FOR: (1) BREACH OF CONTRACT (LEASE AGREEMENT) (2) BREACH OF CONTRACT (SETTLEMENT AGREEMENT) (3) DECLARATORY RELIEF (4) SPECIFIC PERFORMANCE

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  • 03/13/2018
  • Notice of Case Management Conference; Filed by Clerk

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  • 01/31/2018
  • Proof-Service/Summons

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  • 01/31/2018
  • PROOF OF SERVICE OF SUMMONS

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  • 01/17/2018
  • COMPLAINT FOR: 1. BREACH OF WRITTEN CONTRACT; ETC

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  • 01/17/2018
  • SUMMONS

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  • 01/17/2018
  • Complaint; Filed by null

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Tentative Rulings

Case Number: BC690725    Hearing Date: November 13, 2020    Dept: 20

Tentative Ruling

Judge David J. Cowan

Department 20


Hearing Date: Friday, November 13, 2020

Case Name: Beverly Hills Dialysis Partnership v. Unified Real Estate Investments, LLC

Case No.: BC690725

Motion: Leave to File FAC

OSC re: Issuance of Preliminary Injunction

Moving Party: Plaintiff Beverly Hills Dialysis Partnership

Responding Party: Defendant Unified Real Estate Investments, LLC

Notice: OK


Ruling: Plaintiff’s Motion for Leave is GRANTED. Plaintiff shall file the FAC within 5 days of this Order.

The Court GRANTS Plaintiff’s application for a preliminary injunction requiring Defendant to allow Plaintiff to move its dialysis equipment out of the premises, including by using Defendant’s elevators, and precluding Defendant from interfering with the foregoing. The Court sets Plaintiff’s injunction bond at $25,000.00.

Plaintiff to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.


BACKGROUND

 

On January 17, 2018, Plaintiff Beverly Hills Dialysis Partnership filed a Complaint against Defendant Unified Real Estate Investments, LLC and Does, stating claims for breach of contract and reformation of contract, and seeking declaratory relief.

On October 15, 2020, Plaintiff filed an ex parte application seeking a temporary restraining order and issuance of an OSC re: issuance of preliminary injunction. Defendant opposed the ex parte application. The Court denied the request for a temporary restraining order, but granted in part by scheduling an OSC re: issuance of preliminary injunction for November 2, 2020.

On October 22, 2020, Plaintiff filed a Motion for Leave to File First Amended Complaint (“FAC”), seeking to add new claims for conversion, trespass to chattels, and breach of the covenant of quiet enjoyment relating to Defendant’s actions taken during October 2020. Plaintiff also filed an ex parte application to advance the hearing on the Motion for Leave from December 7, 2020 to November 2, 2020 concurrent with the OSC re: issuance of preliminary injunction.

On October 26, 2020, Defendant filed a response to the OSC opposing issuance of a preliminary injunction.

On October 28, 2020, Plaintiff filed a reply supporting issuance of the injunction.

On November 2, 2020, the Court granted Plaintiff’s opposed ex parte application to advance the hearing on the Motion for Leave from December 7, 2020 to November 12, 2020 concurrent with the OSC re: issuance of preliminary injunction.

On November 5, 2020, the Court continued the hearing on the Motion for Leave and OSC re: injunction from November 12, 2020 to November 13, 2020.

On November 6, 2020, Defendant filed an Opposition to the Motion for Leave and OSC.

On November 10, 2020, Plaintiff filed a Reply in support of the Motion for Leave and OSC.

DISCUSSION

Motion for Leave to File FAC

CCP sec. 473(a) authorizes the Court, “in its discretion,” to allow amendment “upon any terms as may be just.” It is “an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) “Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only ‘[w]here no prejudice is shown to the adverse party.’” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761 (citing Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)) When moving for leave, “the burden is upon the moving party to place before the court such material as will show that the ends of justice will be served” by granting leave. (Plummer v. Superior Court (1963) 212 Cal.App.2d 841, 843.) “[T]he appropriate exercise of that discretion requires the trial court to consider a number of factors” such as “the conduct of the moving party and the belated presentation of the amendment.” (Leader v. Health Industries of America (2001) 89 Cal.App.4th 603, 613.)

A motion to amend a pleading before trial must (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, Rule 3.1324(a).)  The motion must also be accompanied by a supporting declaration that specifies (1) the effect of the amendment, (2) why the amendment is necessary and proper, (3) when the facts giving rise to the amended allegations were discovered, and (4) the reasons why the request for amendment was not made earlier. (CRC Rule 3.1324(b).

At the outset, the Court finds Plaintiff’s Motion complies with the requirements of Rule 3.1324. Defendant presents three arguments in opposing the Motion: (1) Plaintiff should have sought leave to file a “supplemental” complaint under CCP sec. 464 rather than an amended complaint where the new claims are based on new facts (11/2 Oppo., p. 5-6); (2) the amendments would prejudice Defendant by requiring additional discovery (11/2 Oppo., p. 7); and (3) the new claims facially lack merit (11/2 Oppo., p. 8-9).

The first argument is not a basis to deny the Motion—in the context of amended versus supplemental pleadings, “courts regard substance and not labels in determining the sufficiency.” (Hutnick v. U.S. Fidelity & Guaranty Co. (1988) 47 Cal.3d 456, 464 fn. 6.) Further, while Plaintiff seeks to allege new facts, which would be within the scope of CCP sec. 464, supplemental complaints may not be used to introduce “new causes of action.” (Flood v. Simpson (1975) 45 Cal.App.3d 644, 647.) Here, Plaintiff seeks to introduce both new causes of action and new facts to support those causes of action, facts which arose after the filing of the original Complaint, and so may invoke either procedure.

Defendant relies on Garcia v. Roberts (2009) 173 Cal.App.4th 900, in which the trial court specifically relied on CCP sec. 469 in granting leave to amend “during trial” in order to “conform to proof.” (Id. at 909-10.) “Such amendments at trial to conform to proof, ‘if not prejudicial, are favored since their purpose is to do justice and avoid further useless litigation.’” (Id. (emphasis added)) Thus, in deciding whether to permit a party to “amend[] pleadings during trial . . . trial courts should be guided by two general principles: (1) whether facts or legal theories are being changed and (2) whether the opposing party will be prejudiced by the proposed amendment.” (Id.) Plaintiff is not seeking to amend “during trial,” nor to conform to proof, but rather to allege later facts giving rise to new causes of action—which was not the case in Garcia.

Hebert v. Los Angeles Raiders, Ltd. (1991) 23 Cal.App.4th 414 is similarly inapposite as the Court of Appeal was determining whether the trial court erred in denying leave to amend after sustaining a demurrer; the trial court found no error, as the complaint could be saved only by facts which did not exist when the complaint was originally filed. (Id. at 426.) Significantly, however, the Hebert court noted that the new facts “indicated a new and different cause of action against the Saints, not a party to the action.” (Id. (emphasis added)) The court found denial of leave was proper on that ground, citing Flood, supra, 45 Cal.App.3d at 647. The only relevant principle in the cited portion of Flood is that denial of leave to supplement is proper “on the basis that the supplement to the complaint sought to introduce new causes of action.” (Id. at 647.) Similarly in Hebert, leave would need to be denied even if reconstrued as leave to supplement where the new facts “indicated a new and different cause of action.”

The second argument also fails. It is “an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge, supra, 213 Cal.App.3d at 1048.) Defendant has not argued it was “misled” by the proposed amendments, and instead argues it is prejudiced because further discovery will be necessary “just before trial.” But trial is still five months away in April 2021; moreover, jury trials may be further continued due to the impact of the COVID-19 pandemic, which presently appears to be accelerating in many parts of the United States. Further, discovery is ongoing on the original Complaint—it is not as though discovery would need to be reopened. (See Supp. Lewis Decl., para. 4.) If there is any prejudice, it is not so substantial as to warrant denial.

Finally, the third argument—the merits of the proposed additional claims—is not an issue in granting leave to amend. Rather, this argument is properly raised by demurrer. (See Atkinson, supra, 109 Cal.App.4th at 760 (“the better course of action would have been to allow Atkinson to amend the complaint and then let the parties test its legal sufficiency in other appropriate proceedings.”)) In any event, the Court looks to the merits of the new claims below and finds that they are not facially meritless—quite the opposite, Plaintiff is likely to prevail at trial.

 

OSC re: Injunction

“In deciding whether to issue a preliminary injunction, a trial court must review two interrelated factors: ‘The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued.’” (American Academy of Pediatrics v. Van de Kamp (1989) 214 Cal.App.3d 831, 837.) The Court previously found that Plaintiff would likely be unable to show a likelihood of prevailing at trial on the claims in the unamended complaint, which were largely unrelated to the injunction sought. (See 11/2/20 Continuance Order.) The Court previously denied Plaintiff’s request for a TRO on similar grounds; moreover, it was unclear that Plaintiff’s need to remove the dialysis equipment was an exigent circumstance.

However, Plaintiff is likely to prevail on the merits at trial on its conversion claim asserted in the FAC. Gruber v. Pacific State Savings & Loan Co. (1939) 13 Cal.2d 144 is controlling. In that case, “the plaintiff rented from the defendant a portion of certain premises known as the Bilger Quarry property located in Oakland and consisting, in the main, of a lot, barn and corral” for rent of “$15 a month.” (Id. at 146.) The plaintiff took “possession of the demised premises by storing certain road grading equipment in the corral and certain halters, harness, collars and other horse fittings in the barn. In order to insure the safekeeping of the equipment . . . plaintiff nailed and otherwise secured all doors and windows to the barn with the exception of one door to which he retained the only key.” (Id.) Thereafter, “Plaintiff failed to pay any rental for the second, third and fourth months of his tenancy.” (Id.) At that point, the lessor’s cashier sent the plaintiff a letter “notifying him that unless the delinquent rentals were paid in full . . . all of plaintiff's equipment located in the demised premises would be advertised and sold to discharge such indebtedness.” (Id.) “The letter also stated that ‘the only way in which you can have your equipment released is by the payment of your rental in full.’” (Id.) Later on, the plaintiff “requested the watchman or overseer maintained [at the Quarry] by the defendant lessor . . . to allow him to remove a portion of his equipment,” but the overseer refused. (Id.) Plaintiff then called the lessor’s office and “renewed his request for permission to remove a portion of his property,” which was declined. (Id.) The “lessor thereafter sold the real property to a third person [and] the barn was torn down and . . . no part of plaintiff's equipment over again reached his hands or possession.” (Id. at 147.)

At trial and on appeal, the lessor argued “that the equipment at all times remained in the plaintiff's exclusive possession, that it did not through its agents seize or take said personalty to the exclusion of its owner and that, at best, the evidence merely disclose[d] a threat to convert” rather than actual conversion. (Id.) The Supreme Court found this argument “lacks merit.” (Id.) In actuality, the evidence at trial showed that the letter constituted “a written threat to convert plaintiff's property” and showed the “repeated refusals of the agents of the defendant lessor, in the immediate proximity of the equipment and elsewhere, to permit the plaintiff to remove his equipment from the premises.” (Id.) The Supreme Court found the plaintiff, despite nonpayment of rent, had the “right [to remove his equipment] . . . without interference from the defendant or its agents.” (Id.) The lessor’s “refusal in the instant case to permit the plaintiff to have access to his equipment or to remove the same while [rent was overdue] constituted an improper and wrongful exercise of dominion over the plaintiff's property in violation of his rights as owner.” (Id.) That the “plaintiff was in arrears in his payment of the rent . . . did not warrant defendant's exercise of dominion over plaintiff's personal property located on the premises.” (Id. at 148.) “Adequate remedies exist to protect a lessor in such a situation,” and “in this state . . . a landlord has no lien on the tenant's property for unpaid rent.” (Id.) The refusal to allow the plaintiff to take back his equipment therefore constituted conversion—an “act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein.” (Id.)

The principle expressed in Gruber—that a landlord may not refuse to allow a tenant to regain possession of its personal property in the rented premises—is readily applicable here and demonstrates that Plaintiff is likely to prevail at trial on its conversion claim. Indeed, Defendant did not address Gruber in any of its oppositions even though the case was first raised in Plaintiff’s October 28 Reply to the OSC. Instead, Defendant argues Plaintiff “cannot possibly claim conversion or trespass to chattel where it has previously consented to the removal of its items being conditional on performing repairs” to damage caused by removal of those items. (Supp. Opp., p. 2, 5.) It is undisputed that the lease agreement requires such. (Supp. Reply, p. 6.) But under Gruber, this is not a defense to conversion—Defendant has adequate remedies at law for Plaintiff’s failure to perform such repairs after the equipment is removed, so the obligation to perform such repairs is not a basis to refuse to allow Plaintiff to remove the equipment.

Further, as a matter of common sense, Defendant cannot refuse to allow Plaintiff to remove equipment on the ground that it is not subjectively confident Plaintiff will comply with its contractual repair obligations; the appropriate course of action is to allow the equipment to be removed, as is Plaintiff’s right, and then see whether Plaintiff performs its obligations under the lease. Plaintiff necessarily cannot perform its repair obligations until the equipment is removed in any event. Defendant objects that Plaintiff has not promised to use a licensed general contractor and urges that Plaintiff “intends to leave the Premises in a state of disrepair and not fulfill its contractual obligations.” But this is speculative. Defendant is presently and actually preventing Plaintiff from removing its own equipment on the ground that it is possible Plaintiff will not comply with contractual obligations later. Further, Plaintiff has already declined to renew the lease, which is about to expire—Defendant has no practical basis to force Plaintiff to keep the dialysis equipment on the property until the lease ends. Thus, the Court concludes that—at a minimum—Plaintiff is likely to prevail at trial on its conversion claim.

As to the second factor (balance of harms), Plaintiff is more likely to sustain more severe damage from being denied the right to remove its equipment than Defendant would suffer from removal of the equipment. Plaintiff offers dialysis care and is presently short on this expensive equipment. (Ramani Supp. Decl., para. 3.) However, the Court notes that the “remaining units” at issue here “are old and will be salvaged for parts”; as a result, it is not clear that Plaintiff will use the equipment at issue. (Ramani Supp. Decl., para. 4; cf. Application, p. 3 (“the medical equipment at issue here is scarce, expensive and urgently needed at another clinic to treat patients.”)) It is unclear to the Court that the harm from being unable to scrap medical equipment is the same severity of harm as being unable to relocate functional medical equipment. Nonetheless, the Court does not find that more significant harm to Defendant would ensue from the removal (and scrapping) of this equipment than the harm to Plaintiff from being unable to dispose of its personal property. Thus, the balance of harms favors Plaintiff.

Therefore, the Court grants an injunction enjoining Defendant from prohibiting and interfering with Plaintiff’s removal of the dialysis equipment, including Plaintiff’s use of the elevators to remove that equipment. “On granting an injunction, the court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction.” (CCP sec. 529(a).) The Court sets the injunction bond at $25,000—an amount the Court finds adequate to incentivize Plaintiff to take care in removing the equipment.

Defendant’s request for a $200,000 bond is excessive. (Oppo., p. 13-14.) First, the requested bond explicitly includes “$100,000 in damages to the property by way of BHDP’s tenancy” which Defendant claims it “has already sustained.” (Id. at p. 14.) Defendant does not cite any authority that this bond should account for property damages previously sustained during the tenancy; the bond should address the damages which may ensue in connection with the conduct that is the subject of the injunction, here, the removal of the dialysis equipment. (See, e.g., Abba Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 14.)

Second, Defendant offers little support for the disputed amounts claimed (e.g., $75,000 to repair cracking in vinyl and plastic flooring tiles) and has not addressed Plaintiff’s accurate point that California law imposes no obligation relating to natural “wear and tear” from a tenancy. “The exception of ordinary wear and tear contemplates that deterioration will occur by reason of time and use despite ordinary care for its preservation. [Cite.] A tenant is not required to renovate the premises at the expiration of his lease; a covenant to repair should be reasonably interpreted to avoid placing any unwarranted burden of improvement of the lessor's premises on the lessee.” (Kanner v. Globe Bottling Co. (1969) 273 Cal.App.2d 559, 566.) The Court therefore rejects Defendant’s argument that Plaintiff’s agreement “to maintain said Premises in the same condition, order and repair as they are at the commencement of said Term” should be construed as requiring repair of wear-and-tear; that language “should be reasonably interpreted to avoid” such an unwarranted burden.

Third, Defendant’s request for a $200,000 bond does not account for the fact that Plaintiff has a $15,000,000.00 umbrella policy from Aon Insurance on the premises. Indeed, Defendant’s Oppositions have been consistently silent as to the Aon Insurance policy, which was discussed in Plaintiff’s initial Application and subsequent briefing. Instead, Defendant focuses exclusively on Plaintiff’s $10,000,000 “self-insurance,” arguing this is inadequate. The Court does not find these arguments significant where Defendant failed to show that the more expansive Aon policy is somehow inapplicable or inadequate here.

However, Plaintiff’s request for a mere $1,000 bond is far too low to adequately ensure Plaintiff will be as careful as reasonably possible in avoiding damage while removing the equipment. The Court agrees with Defendant that, “should a contractor injure himself, or cause additional damage to the building,” the damages would very likely exceed $1,000, potentially by a large margin. The bond should thus exceed that amount; the purpose of the injunction bond “is to afford compensation to the party wrongly enjoined or restrained.” (Top Cat Productions, Inc. v. Michael's Los Feliz (2002) 102 Cal.App.4th 474, 478.) Therefore, the Court sets the bond at $25,000—a middle ground between the very high and low requests presented.

CONCLUSION

Plaintiff’s Motion for Leave is GRANTED. Plaintiff shall file the FAC within 5 days of this Order.

The Court GRANTS Plaintiff’s application for a preliminary injunction requiring Defendant to allow Plaintiff to move its dialysis equipment out of the premises, including by using Defendant’s elevators, and precluding Defendant from interfering with the foregoing. The Court sets Plaintiff’s injunction bond at $25,000.00.

Plaintiff to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.

Case Number: BC690725    Hearing Date: November 02, 2020    Dept: 20

Tentative Ruling

Judge David J. Cowan

Department 20


Hearing Date: Monday, November 2, 2020

Case Name: Beverly Hills Dialysis Partnership v. Unified Real Estate Investments, LLC

Case No.: BC690725

OSC re: Issuance of Preliminary Injunction

Moving Party: Plaintiff Beverly Hills Dialysis Partnership

Responding Party: Defendant Unified Real Estate Investments, LLC

Notice: OK


Ruling: The OSC re: issuance of preliminary injunction is CONTINUED to November 12, 2020 at 8:30 a.m. in this Department.

Plaintiff to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.


BACKGROUND

 

On January 17, 2018, Plaintiff Beverly Hills Dialysis Partnership filed a Complaint against Defendant Unified Real Estate Investments, LLC and Does, stating claims for breach of contract and reformation of contract, and seeking declaratory relief.

On October 15, 2020, Plaintiff filed an ex parte application seeking a temporary restraining order and issuance of an OSC re: issuance of preliminary injunction. Defendant opposed the ex parte application. The Court denied the request for a temporary restraining order, but granted in part by scheduling an OSC re: issuance of preliminary injunction for November 2, 2020.

On October 22, 2020, Plaintiff filed a Motion for Leave to File First Amended Complaint (“FAC”), seeking to add new claims for conversion, trespass to chattels, and breach of the covenant of quiet enjoyment relating to Defendant’s actions taken during October 2020. Plaintiff also filed an ex parte application to advance the hearing on the Motion for Leave from December 7, 2020 to November 2, 2020 concurrent with the OSC re: issuance of preliminary injunction.

On October 26, 2020, Defendant filed a response to the OSC opposing issuance of a preliminary injunction.

On October 28, 2020, Plaintiff filed a reply supporting issuance of the injunction.

DISCUSSION

The Court CONTINUES the OSC re: issuance of preliminary injunction to November 12, 2020 at 8:30 a.m. pending resolution of Plaintiff’s ex parte application to advance the hearing on the Motion for Leave.

Resolution of the OSC will likely depend on the outcome of the Motion for Leave, as the operative Complaint filed January 2018 contains no claims or allegations regarding Defendant’s recent conduct—which conduct was the trigger for Plaintiff to seek injunctive relief. (See Defendant’s Supp. Brief re: OSC, p. 5:7-21.) “In deciding whether to issue a preliminary injunction, a trial court must review two interrelated factors: ‘The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued.’” (American Academy of Pediatrics v. Van de Kamp (1989) 214 Cal.App.3d 831, 837.) Plaintiff likely cannot show a likelihood of prevailing on the merits at trial on the unamended Complaint in a manner relevant to the subject of the preliminary injunction.

However, as of October 30, 2020, Defendant has not filed an Opposition to the ex parte application to advance the hearing on the Motion for Leave. Based on Defendant’s Supplemental Brief, the Court anticipates that that Opposition will be filed. (Defendant’s Supp. Brief re: OSC, p. 5:22-23 (“these issues will be addressed more fully in Unified’s Opposition to BHDP’s Ex Parte to Amend.”)) The Court therefore cannot make a tentative ruling on the ex parte to advance or the Motion for Leave—which is still for hearing in December.

For the foregoing reasons, the Court finds continuance of the OSC is warranted so that the Court can rule on Plaintiff’s ex parte to advance the hearing on the Motion for Leave, and potentially rule on the Motion for Leave (pending the outcome of the ex parte). The continuance will be brief—ten days—to avoid further delay in determining whether an injunction is proper. Thus, the Court CONTINUES the OSC re: issuance of preliminary injunction to November 12, 2020 at 8:30 a.m. in this Department.

CONCLUSION

 

The OSC re: issuance of preliminary injunction is CONTINUED to November 12, 2020 at 8:30 a.m. in this Department.

Plaintiff to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.

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