This case was last updated from Los Angeles County Superior Courts on 05/01/2021 at 05:30:22 (UTC).

GITI SHOUSHANI VS SHAVER KORFF CASTRONOVO LLP, ET AL.

Case Summary

On 10/28/2019 GITI SHOUSHANI filed a Contract - Professional Negligence lawsuit against SHAVER KORFF CASTRONOVO LLP. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is BARBARA A. MEIERS. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******8436

  • Filing Date:

    10/28/2019

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Professional Negligence

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

BARBARA A. MEIERS

 

Party Details

Plaintiff

SHOUSHANI GITI

Defendants

KORFF EVE H

SHAVER KORFF CASTRONOVO LLP

KORFF EVE

Attorney/Law Firm Details

Plaintiff Attorney

KASHANI JONATHAN M

Defendant Attorney

BROOKS KENNY C.

 

Court Documents

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW RE: OBJECTIONS/PROPOSED JUDGMENT)

4/29/2021: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW RE: OBJECTIONS/PROPOSED JUDGMENT)

Judgment - JUDGMENT JUDGMENT

4/30/2021: Judgment - JUDGMENT JUDGMENT

Declaration - DECLARATION OF JONATHAN M. KASHANI ISO MOTION FOR RECONSIDERATION

4/19/2021: Declaration - DECLARATION OF JONATHAN M. KASHANI ISO MOTION FOR RECONSIDERATION

Motion for Reconsideration

4/19/2021: Motion for Reconsideration

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

4/19/2021: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)

Memorandum of Points & Authorities

4/19/2021: Memorandum of Points & Authorities

Notice of Ruling

4/8/2021: Notice of Ruling

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SANCTIONS; NON-APPEARANCE CASE REVIEW R...)

4/8/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SANCTIONS; NON-APPEARANCE CASE REVIEW R...)

Reply - REPLY IN SUPPORT OF MOTION FOR MONETARY SANCTIONS

4/1/2021: Reply - REPLY IN SUPPORT OF MOTION FOR MONETARY SANCTIONS

Notice - NOTICE PLAINTIFF'S NOTICE OF WITHDRAWAL OF MTC SROGS

4/5/2021: Notice - NOTICE PLAINTIFF'S NOTICE OF WITHDRAWAL OF MTC SROGS

Notice - NOTICE PLAINTIFF'S NOTICE OF WITHDRAWAL OF MTC RFPS

4/5/2021: Notice - NOTICE PLAINTIFF'S NOTICE OF WITHDRAWAL OF MTC RFPS

Notice - NOTICE PLAINTIFF'S NOTICE OF WITHDRAWAL OF MTC RFAS

4/5/2021: Notice - NOTICE PLAINTIFF'S NOTICE OF WITHDRAWAL OF MTC RFAS

Notice - NOTICE PLAINTIFF'S NOTICE OF WITHDRAWAL OF MTC FROGS

4/5/2021: Notice - NOTICE PLAINTIFF'S NOTICE OF WITHDRAWAL OF MTC FROGS

Exhibit List - EXHIBIT LIST PLAINTIFF GITI SHOUSHANIS EXHIBIT LIST IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SANCTIONS AND TERMINATING SANCTIONS

3/30/2021: Exhibit List - EXHIBIT LIST PLAINTIFF GITI SHOUSHANIS EXHIBIT LIST IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SANCTIONS AND TERMINATING SANCTIONS

Minute Order - MINUTE ORDER (HEARING ON MOTION TO STRIKE (NOT ANTI-SLAPP) - WITHOUT DEMURR...)

3/3/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO STRIKE (NOT ANTI-SLAPP) - WITHOUT DEMURR...)

Notice of Ruling

3/4/2021: Notice of Ruling

Memorandum of Points & Authorities

3/11/2021: Memorandum of Points & Authorities

Motion to Compel Further Discovery Responses

3/11/2021: Motion to Compel Further Discovery Responses

94 More Documents Available

 

Docket Entries

  • 06/04/2021
  • Hearing06/04/2021 at 08:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Reconsideration

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  • 04/30/2021
  • DocketJudgment (Judgment); Filed by SHAVER KORFF CASTRONOVO LLP (Defendant); Eve Korff (Defendant)

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  • 04/29/2021
  • Docketat 3:00 PM in Department 56; Non-Appearance Case Review (reObjections/Proposed Judgment) - Held

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  • 04/29/2021
  • DocketMinute Order ( (Non-Appearance Case Review re: Objections/Proposed Judgment)); Filed by Clerk

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  • 04/20/2021
  • Docketat 10:35 AM in Department 56; Non-Appearance Case Review (reProposed Judgment) - Not Held - Advanced and Vacated

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  • 04/19/2021
  • Docketat 11:12 AM in Department 56; Non-Appearance Case Review

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  • 04/19/2021
  • DocketMinute Order ( (Non-Appearance Case Review)); Filed by Clerk

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  • 04/19/2021
  • DocketMotion for Reconsideration; Filed by GITI SHOUSHANI (Plaintiff)

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  • 04/19/2021
  • DocketMemorandum of Points & Authorities; Filed by GITI SHOUSHANI (Plaintiff)

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  • 04/19/2021
  • DocketDeclaration (of Jonathan M. Kashani ISO Motion for Reconsideration); Filed by GITI SHOUSHANI (Plaintiff)

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128 More Docket Entries
  • 01/30/2020
  • DocketProof of Personal Service; Filed by GITI SHOUSHANI (Plaintiff)

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  • 12/27/2019
  • Docketat 08:30 AM in Department 56; Order to Show Cause Re: Failure to File Proof of Service - Held

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  • 12/27/2019
  • DocketMinute Order ( (Order to Show Cause Re: Failure to File Proof of Service)); Filed by Clerk

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  • 12/27/2019
  • DocketCertificate of Mailing for ((Order to Show Cause Re: Failure to File Proof of Service) of 12/27/2019); Filed by Clerk

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  • 10/28/2019
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk

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  • 10/28/2019
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 10/28/2019
  • DocketCivil Case Cover Sheet; Filed by GITI SHOUSHANI (Plaintiff)

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  • 10/28/2019
  • DocketSummons (on Complaint); Filed by GITI SHOUSHANI (Plaintiff)

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  • 10/28/2019
  • DocketComplaint; Filed by GITI SHOUSHANI (Plaintiff)

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  • 10/28/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

Case Number: 19STCV38436    Hearing Date: June 4, 2021    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

GITI SHOUSHANI,

Plaintiff,

vs.

EVE KORFF, etc., et al.,

Defendants.

CASE NO.: 19STCV38436

[TENTATIVE] ORDER RE: MOTION FOR RECONSIDERATION

Date: June 4, 2021

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Plaintiff Giti Shoushani

RESPONDING PARTIES: Defendants Eve Korff and Shaver Korff Castronovo LLP

The Court has considered the moving, opposition, and reply papers. Plaintiff makes an incorrect argument that the opposition was filed and served late. The proof of service shows that the opposition was served on May 21, 2021, which is nine court days before the hearing. The opposition to the motion was filed and served in a timely manner under Code Civ. Proc. § 1005(b).

BACKGROUND

On April 8, 2021, after hearing oral argument, the Court granted Defendants’ motion for terminating sanctions and monetary sanctions against Plaintiff. The Court granted the motion on the grounds that Plaintiff and her counsel of record, Jonathan Kashani (“Kashani”), willfully violated discovery orders issued by this Court.

On April 19, 2021, Plaintiff filed a motion for reconsideration (the “Motion”) of the Court’s April 8, 2021 order (the “Order”) issuing terminating sanctions and dismissing Plaintiff’s case and for relief under Code Civ. Proc. § 473. On April 30, 2021, judgment was entered and such judgment states that Plaintiff’s lawsuit against Defendants was dismissed with prejudice.

DISCUSSION

Code Civ. Proc. § 1008(a) requires that a motion for reconsideration be based on new or different facts, circumstances or law. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.) A trial court has discretion in granting a motion for reconsideration. (Id.) A trial court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon new or different facts, circumstances, or law. (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 670.)

With regard to new facts, the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time. (Id.) Ignorance of the law is not a proper ground for a motion for reconsideration. (Id.) A party seeking reconsideration of a prior court order based on new facts, law, or circumstances must show reasonable diligence and provide a sufficient explanation for not presenting such information earlier. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) A motion for reconsideration must include an affidavit stating what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. (Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1048.)

Issue No.1: Kashani’s Declaration is non-Compliant

Initially, the Court finds that the declaration of Kashani in support of the Motion does not meet the requirements set forth in Branner v. Regents of University of California, supra, 175 Cal.App.4th 1043, 1048 as the declaration does not state: (1) what application was made; (2) when such application was made; (3) by whom such application was made; or (4) what new or different facts, law, or circumstances are claimed to be shown. A motion for reconsideration that does not comply with Code Civ. Proc. § 1008(a) is procedurally defective under Branner v. Regents of University of California, supra, 175 Cal.App.4th 1043, 1048.

While the lack of compliance alone is dispositive to denying the Motion, the Court will address the other defects in the Motion.

Issue No.2: The Court Lacks Jurisdiction to Reconsider the Order

A court may reconsider its order granting or denying a motion and may even reconsider or alter its judgment so long as judgment has not yet been entered. (APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181.) Once judgment has been entered, however, the court may not reconsider it and loses its unrestricted power to change the judgment. (Id.)

Here, judgment has already been entered in favor of Defendants and against Plaintiff. Under, APRI Ins. Co. v. Superior Court, supra, 76 Cal.App.4th 176, 181, the Court lacks jurisdiction to reconsider its order granting Defendants’ motion for terminating sanctions because judgment has already been entered in this action.

Issue No.3: Failure to Show New Facts, Law, or Circumstances

The Court finds that Plaintiff has failed to show any new law to warrant reconsideration of the Order. All of the case law and statutes cited in the Motion was in existence prior to the April 8, 2021 hearing on the motion for terminating sanctions. Moreover, the Court finds that Plaintiff has failed to show any new facts or circumstances to warrant reconsideration given that the Motion is premised on the fact that Kashani took an emergency family leave, which was raised in opposition to Defendants’ motion for sanctions.

Issue No.4: Code of Civil Procedure, Section 473 Does Not Warrant Granting the Motion

The court may relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc. § 473(b).) The court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any dismissal entered against his or her client, unless the court finds that the dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.

The law favors a trial on the merits and therefore liberally construes section 473. (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1477.) The burden of establishing excusable neglect is upon the party seeking relief who must prove it by a preponderance of the evidence. (Id.)

The Court finds Plaintiff is not entitled to relief under Code Civ. Proc. § 473(b). The Court finds that Plaintiff has not shown any basis for relief from the Order based on mistake, inadvertence, surprise, or neglect as the declaration of Kashani in support of the Motion fails to state sufficient facts to establish a showing of mistake, inadvertence, surprise, or neglect. The Court has already found in connection with Defendants’ motion for terminating sanctions that Plaintiff and Kashani’s failure to comply with the Court’s discovery-related orders was willful. The Court therefore denies Plaintiff’s request to set aside the Order under Code Civ. Proc. § 473.

Based on the Court’s discussion above, the Court DENIES the Motion.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 4th day of June 2021

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: 19STCV38436    Hearing Date: April 8, 2021    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

GITI SHOUSHANI,

Plaintiff,

vs.

EVE KORFF, etc., et al.,

Defendants.

CASE NO.: 19STCV38436

[TENTATIVE] ORDER RE: MOTION FOR TERMINATING SANCTIONS AND MONETARY SANCTIONS

Date: April 8, 2021

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Defendants Eve Korff and Shaver Korff Castronovo LLP

RESPONDING PARTY: Plaintiff Giti Shoushani

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

On October 23, 2020, the Court held a hearing on Defendants’ motion to compel Plaintiff to produce verifications for her responses to Defendants Requests for Production, Requests for Admission, Special Interrogatories, and Form Interrogatories (collectively, the “Discovery”), as well as Defendants’ request for monetary sanctions in the amount of $4,738.56. The Court denied the motion in its entirety.

On November 20, 2020, the parties participated in an Informal Discovery Conference (“IDC”) and a court order was issued thereto stating that the parties stipulated that Plaintiff would serve electronically supplemental, verified, code-compliant responses to the Discovery, as delineated in Defendants’ counsel’s July 16, 2020 email, by the close of business on December 14, 2020.

Defendants filed a motion for: (1) monetary sanctions against Plaintiff and her counsel of record, Jonathan Kashani (“Kashani”), in the amount of $9,981.00 for a pattern of discovery abuses including a failure to comply with the Court’s November 20, 2020 discovery order; and (2) terminating sanctions against Plaintiff for her repeated discovery abuses and her refusal to comply with the Court’s discovery orders.

On January 25, 2021, the Court held a hearing on Defendants’ motion for sanctions and the Court’s order[1] stated that the opposition was filed late. The Court’s January 25, 2021 order stated that: (1) Plaintiff was to comply by providing full and complete verified responses, without objections, by the close of business on February 4, 2021; and (2) if Plaintiff did not comply then Defendants could file an ex parte application and the Court would grant sanctions.

The Current Motion

Defendants filed a motion (the “Motion”) for terminating sanctions as well as monetary sanctions in the amount of $19,383.00 against Plaintiff and her counsel of record, Kashani. The Motion is made on the grounds that Plaintiff and Kashani have repeatedly violated this Court’s discovery orders.

JUDICIAL NOTICE

The Court GRANTS Defendants’ request for judicial notice.

DISCUSSION

The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) Discovery sanctions should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Id.) Continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Id.) Where discovery violations are willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction. (Id.) A trial court has broad discretion to impose discovery sanctions, but two facts are generally a prerequisite to the imposition of nonmonetary sanctions. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)

Where discovery sanctions are requested against a party, there must be a failure to comply with a court order and the failure must be willful. (Id.) A decision to order terminating sanctions should not be made lightly. (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702.) A trial court can impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Id. at 701.) Where a trial court imposes a terminating sanction, a trial court can strike out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. (Id.) A trial court’s order to impose terminating sanctions will be reversed only if it was arbitrary, capricious, or whimsical. (Id. at 702.) Trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) A party seeking terminating sanctions for another party’s discovery misconduct need not prove prejudice where the misconduct relates to discovery the moving party propounded. (Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1122.)

Issue No.1: Terminating Sanctions

The Court exercises its discretion and finds that terminating sanctions are appropriate at this time. The opposition to the Motion states that: (1) on January 12, 2021, Kashani produced nearly 36,000 pages of documents in an effort to redress the delay of production due to his wife’s ongoing medical crisis during the pandemic; and (2) Kashani provided supplemental and verified responses to the Discovery on February 1, 2021.

The supplemental responses are attached as Exhibits J through L to the declaration of Kashani in support of the Motion and the proofs of service as to such responses show that the responses were served on February 1, 2021. Based upon review of such supplemental responses, however, the Court finds that despite the Court’s prior order that the supplemental responses not contain objections, some of the responses do contain objections. Moreover, the Court finds that Defendants’ contention that Plaintiff did not provide supplemental responses to some of the Discovery is correct. The opposition to the Motion states that “Plaintiff has complied with all but approximately 36 supplemental responses” while also stating that “Plaintiff has provided both initial discovery responses and supplemental responses, verifications, and produced more than 36,000 pages of documents.” (Opp. at 6:15-18.) Plaintiff even states in the opposition that she “has essentially complied with all of the discovery requests.” (Id. at 7:6.) Despite the Court ordering Plaintiff to provide complete and full supplemental responses as to the Discovery, Plaintiff did not do so. A party essentially complying with a discovery order is not the same as fully complying with a discovery order. Plaintiff therefore violated two discovery-related orders of this Court. Moreover, the declaration of Kashani in opposition to the Motion fails to state facts as to why the failure to comply with the Court’s January 25, 2021 order in its entirety was not willful. Thus, under Biles, the Court finds that Plaintiff’s failure to comply with orders directed at the Discovery was willful.

The Court exercises its discretion and GRANTS the request of Defendants to impose terminating sanctions against Plaintiff and the Court strikes the complaint filed by Plaintiff under Creed-21.

Issue No.2: Monetary Sanctions

Code Civ. Proc. § Section 2023.030 provides that the court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. A misuse of the discovery process includes disobeying a court order to provide discovery. (Doppes, supra, 174 Cal.App.4th 967, 991.)

The Court exercises its discretion and GRANTS Defendants’ request for monetary sanctions against Plaintiff and Kashani in the reasonable amount of $2,000.00. Monetary sanctions are to be paid within 20 days of the date of this order by Plaintiff and Kashani, jointly and severally, to Defendants.

The Motion is therefore GRANTED in its entirety.

Moving parties are ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 8th day of April 2021

Hon. Holly J. Fujie

Judge of the Superior Court


[1] The Courts tentative order noted that the motion was unopposed. Moreover, the Court’s tentative order stated that while the request for terminating sanctions was denied, the Court would consider imposing terminating sanctions if Defendants filed another motion for terminating sanctions or if Plaintiff flouted the discovery process.

Case Number: 19STCV38436    Hearing Date: January 25, 2021    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

GITI SHOUSHANI,

Plaintiff,

vs.

SHAVER KORFF CASTRONOVO LLP, etc., et al.,

Defendants.

CASE NO.: 19STCV38436

[TENTATIVE] ORDER RE: MOTION FOR SANCTIONS

Date: January 25, 2021

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Defendants Eve Korff and Shaver Korff Castronovo LLP

The Court has considered the moving papers. No opposition papers were filed.

BACKGROUND

Defendants filed a motion (the “Motion”) for: (1) monetary sanctions against Plaintiff and her counsel of record, Jonathan Kashani, in the amount of $9,981.00 for a pattern of discovery abuses including a failure to comply with the Court’s November 20, 2020 discovery order; and (2) terminating sanctions against Plaintiff for her repeated discovery abuses and her refusal to comply with discovery orders from this Court. The Motion is unopposed.

Issue No.1: Terminating Sanctions

A trial court has broad discretion to impose discovery sanctions, but two facts are generally a prerequisite to the imposition of nonmonetary sanctions. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) Where discovery sanctions are requested against a party, there must be: (1) a failure to comply with a court order; and (2) the failure must be willful. (Id.) A decision to order terminating sanctions should not be made lightly. (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702.) A trial court can impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Id. at 701.) Where a trial court imposes a terminating sanction, a trial court can strike out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. (Id.) A trial court’s order to impose terminating sanctions will be reversed only if it was arbitrary, capricious, or whimsical. (Id. at 702.) Where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (Id.) Trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) Terminating sanctions are warranted when a party’s lack of compliance with the discovery process has caused the opposing party prejudice. (Doppes v. Bentley Motors Inc. (2009) 174 Cal.App.4th 967, 989.)

Based on the evidence presented by Defendants, the Court finds that terminating sanctions are not appropriate at this point in time and the Court DENIES Defendants’ request for the imposition of terminating sanctions against Plaintiff. The declaration of Defendants’ counsel in support of the Motion makes no mention of prejudice.

The Court, however, does order Plaintiff to comply with the Court’s November 20, 2020 discovery order[1] in its entirety given that Plaintiff presents no evidence of compliance. Plaintiff is ordered to comply with such order by serving complete, code-compliant, and verified discovery responses, without objection, to the discovery articulated therein within one week of this order. If Plaintiff does not comply with such order or flouts the discovery process in another manner, and Defendants file another motion for terminating sanctions in the future, the Court will consider issuing terminating sanctions.

Issue No.2: Monetary Sanctions

Code Civ. Proc. § Section 2023.030 provides that the court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. A misuse of the discovery process includes disobeying a court order to provide discovery. (Doppes, supra, 174 Cal.App.4th 967, 991.)

The Court exercises its discretion and GRANTS Defendants’ request for monetary sanctions against Plaintiff and her counsel of record, Jonathan Kashani, in the reasonable amount of $1,000.00. Monetary sanctions are to be paid within 20 days of the date of this order by Plaintiff and her counsel of record, Jonathan Kashani, jointly and severally, to Defendants payable via a check to the “Nemecek & Cole Client Trust Account”.

The Motion is therefore GRANTED IN PART under Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 due to the lack of opposition. The Court declines to impose terminating sanctions against Plaintiff; however, as stated above, the Court will award Defendants monetary sanctions.

Moving parties are ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 25th day of January 2021

Hon. Holly J. Fujie

Judge of the Superior Court


[1] Plaintiff was ordered to serve electronically supplemental, verified, and code-compliant responses to the Requests for Production, Requests for Admissions, Special Interrogatories, and Form Interrogatories delineated in Defendants’ counsel’s July 16, 2020 email.

Case Number: 19STCV38436    Hearing Date: December 17, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

GITI SHOUSHANI,

Plaintiff,

vs.

SHAVER KORFF CASTRONOVO LLP, etc., et al.,

Defendants.

CASE NO.: 19STCV38436

[TENTATIVE] ORDER RE: DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT; MOTION TO STRIKE

Date: December 17, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Defendants Eve Korff and Shaver Korff Castronovo LLP

RESPONDING PARTY: Plaintiff Giti Shoushani

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiff filed a complaint arising from alleged legal malpractice in Ochoa v. Shoushani, Los Angeles Superior Court Case No. BC561285 (the “Underlying Action”), alleging causes of action for: (1) professional negligence; and (2) breach of fiduciary duty.

Defendants filed a demurrer to the second cause of action in the complaint and a motion to strike. At the hearing on demurrer and motion to strike, the Court: (1) sustained Defendants’ demurrer to the second cause of action with leave to amend; and (2) granted the motion to strike with leave to amend.

Plaintiff filed the operative First Amended Complaint (“FAC”) alleging causes of action for: (1) professional negligence; (2) breach of fiduciary duty; and (3) financial elder abuse.

Defendants filed a demurrer to the second and third causes of action in the FAC, as well as a motion to strike portions of the FAC.

MEET AND CONFER

The meet and confer requirement has been met.

JUDICIAL NOTICE

The Court GRANTS Defendants’ request for judicial notice.

DEMURRER

A demurrer tests the sufficiency of a complaint as a matter of law. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts. (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) A court will sustain a demurrer without leave to amend if a plaintiff does not meet his or her burden in showing that there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Issue No.1: Duplicative Nature of the Second Cause of Action

Defendants contend that the second cause of action for breach of fiduciary duty is duplicative of the first cause of action for professional negligence.

A breach of fiduciary duty is a species of tort distinct from a cause of action for professional negligence. (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1534.) The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach. (Id.) The attorney-client relationship is a fiduciary relation of the very highest character imposing on the attorney a duty to communicate to the client whatever information the attorney has or may acquire in relation to the subject matter of the transaction. (Id.) The elements of a cause of action for legal malpractice are (1) the attorney-client relationship or other basis for duty; (2) a negligent act or omission; (3) causation; and (4) damages. (Id. at 1528.)

Based upon a review of the first and second causes of action asserted in the FAC, the Court finds that the first and second causes of action are not duplicative of each other. The second cause of action is not based on the same acts that give rise to the first cause of action.

Therefore, the Court OVERRULES Defendants’ demurrer to the second cause of action.

Issue No.2: Third Cause of Action

Defendants contend that the third cause of action is unauthorized because such cause of action: (1) was not alleged in the complaint; and (2) the Court did not give Plaintiff permission to allege a claim for financial elder abuse.

Generally, where a demurrer is sustained with leave to amend, a plaintiff is only permitted to amend the cause of action which she pleaded in the pleading to which the demurrer has been sustained. (People By and Through Dept. of Public Works v. Clausen (1967) 248 Cal.App.2d 770, 785.) A plaintiff cannot amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.)

Plaintiff’s citation to Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995 is inapposite. The Court sustained the demurrer to the second cause of action in the complaint with leave to amend. Plaintiff added the third cause of action in the FAC without the permission of this Court. Under Zakk and Clausen, Plaintiff was not permitted to add a new cause of action for financial elder abuse. The addition of such cause of action was not in the scope of the Court’s order sustaining Defendants’ demurrer to the complaint.

Therefore, the Court SUSTAINS the demurrer of Defendants to the third cause of action in the FAC. This ruling does not, however, prevent Plaintiff from filing a motion for leave to file a Second Amended Complaint including an additional cause of action.

MOTION TO STRIKE

Defendants filed a motion to strike portions of the FAC. Defendants seek to strike: (1) the third cause of action from the FAC; (2) the prayer for disgorgement claim in connection with the breach of fiduciary duty and financial elder abuse claims; (3) Plaintiff’s Vehicle Code § 17151 allegations; and (4) Plaintiff’s punitive damages claims.

Legal Standard

Code Civ. Proc. § 436(a) allows a court to strike trike out any irrelevant, false, or improper matter inserted in any pleading. Code Civ. Proc. § 436(b) allows a court to 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.

Issue No.1: Striking the Third Cause of Action

Due to the third cause of action being improperly added to the FAC without the Court’s permission as stated above, the Court GRANTS Defendants’ request to strike such cause of action from the FAC.

Issue No.2: Prayer for Disgorgement

Defendants seek to strike the disgorgement of attorney’s fees and costs from the prayer for relief as to the second and third causes of action.

Disgorgement generally is a broader remedy than restitution. (Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1013.) Restitutionary disgorgement is focused on the plaintiff’s loss. (Id.) It is typified by the situation where the disgorged money or property came from the prospective plaintiff in the first instance. (Id.) Restitutionary disgorgement also refers to situations where it is not possible to restore the money to the specific direct victims of the unfair practice. (Id.) By contrast, with nonrestitutionary disgorgement, the focus is on the defendant’s gain from the unfair practice; the plaintiff need not have suffered a loss. (Id.) Disgorgement of attorney’s fees are allowed only where the conduct of the attorney is egregious. (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 278.) Disgorgement of attorney’s fees may be proper where an actual or potential conflict was sufficiently egregious to require the forfeiture of fees. (Id.)

Initially, the Court finds that Plaintiff’s citations to: (1) Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997; and (2) County of San Bernardino v. Walsh (2007) 158 Cal.App.4th 533 are inapposite. The FAC does not allege sufficiently egregious conduct to warrant disgorgement of attorney’s fees, fees which Plaintiff did not pay to Defendants.

Therefore, the Court GRANTS Defendants’ request to strike disgorgement from the prayer for relief as to the second cause of action with 20 days leave to amend. As to striking disgorgement from the prayer for relief from the third cause of action, the Court GRANTS Defendants’ request to strike such allegation because the third cause of action is improper.

Issue No.3: Vehicle Code Section 17151 Allegations

Defendants request that Vehicle Code § 17151 allegations be stricken from the FAC.

Vehicle Code § 17151 limits the liability of an owner of a motor vehicle who is alleged to have caused injury to a person due to a negligent or wrongful act or omission to $15,000.00. (Fremont Comp. Ins. Co. v. Hartnett (1993) 19 Cal.App.4th 669, 675.) This limitation does not apply, however, to a vehicle owner’s common law negligence as distinguished from the owner’s statutory vicarious liability for the operator’s negligence. (Id. at 675-676.)

While Defendants rely on a First Amended Complaint filed in the Underlying Action—through their request for judicial notice—to support their argument that the Vehicle Code § 17151 allegations are improper in this action, the Court finds that such reliance on a pleading is improper[1].

Therefore, the Court DENIES Defendants’ request to strike Vehicle Code § 17151 allegations from the FAC.

Issue No.4: Punitive Damages

In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Civil Code § 3294 authorizes punitive damages upon a showing of malice, fraud, or oppression. Malice is defined as either 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)(1).) Despicable conduct is 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. (1992) 4 Cal. App. 4th 306, 331.) Fraud under Civil Code § 3294(c)(3) means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. Civil Code § 3294(2) defines oppression as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. Punitive damages thus require more than the mere commission of a tort. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.) Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.)

The Court finds that the FAC does not state sufficient facts to show malice, fraud, or oppression to warrant the imposition of punitive damages. Plaintiff seeks punitive damages as to the second and third causes of action in the FAC. Defendants’ request to strike all other allegations of punitive damages from the FAC is GRANTED with 20 days leave to amend.

The motion to strike is therefore GRANTED IN PART according to the limitations set forth above.

Moving parties are ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 17th day of December 2020

Hon. Holly J. Fujie

Judge of the Superior Court


[1] A court cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments. (Id.)

Case Number: 19STCV38436    Hearing Date: October 23, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

GITI SHOUSHANI,

Plaintiff,

vs.

SHAVER KORFF CASTRONOVO LLP, etc., et al.,

Defendants.

CASE NO.: 19STCV38436

[TENTATIVE] ORDER RE: MOTION TO COMPEL DISCOVERY VERIFICATIONS AND FOR MONETARY SANCTIONS

Date: October 23, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Defendants Eve Korff and Shaver Korff Castronovo LLP

RESPONDING PARTY: Plaintiff Giti Shoushani

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiff filed the operative First Amended Complaint (“FAC”) arising from alleged legal malpractice in Ochoa v. Shoushani, Los Angeles Superior Court Case No. BC561285 (the “Underlying Action”). The FAC alleges the following causes of action against Defendants: (1) professional negligence; (2) breach of fiduciary duty; and (3) financial elder abuse.

Defendants filed a motion for an order compelling Plaintiff to produce verifications with respect to her responses to Defendants’: (1) special interrogatories (set one); (2) form interrogatories (set one); (3) requests for admission (set one); and (4) request for production of documents (set one). Defendants also seek monetary sanctions against Plaintiff in the amount of $4,738.56.

Plaintiff’s opposition to Defendants’ motion indicates that Plaintiff provided verifications to the discovery at issue in Defendants’ motion on September 11, 2020. Defendants’ reply brief acknowledges that Plaintiff provided verifications to such discovery on September 11, 2020. Thus, the only issue relevant to Defendants’ motion is monetary sanctions.

EVIDENTIARY OBJECTIONS

The Court OVERRULES Defendants’ evidentiary objections numbers 1-3 to the declaration of Brigitte Mayo and the Court SUSTAINS Defendants’ evidentiary objections numbers 4-5 thereto.

DISCUSSION

“The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action.” (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.) For a court to impose discovery sanctions, two prerequisite facts must exist: (1) there must have been a failure to comply with discovery; and (2) such failure to comply with discovery was willful. (Id.) A court cannot impose a monetary sanction where imposition of such sanction would amount to punishment. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.)

Issue No.1: Monetary Sanctions

Initially, the Court finds that Defendants’ citation to California Code of Civil Procedure, Section 2033.280 for their argument that sanctions against Plaintiff are mandatory is inapplicable to the facts. Section 2033.280 is concerned with a motion to deem requests for admission as admitted. Here, Defendants are not moving to have the requests for admission as admitted but instead are seeking to compel verifications, which as the Court referenced above is now moot due to Plaintiff serving verifications.

The Court has reviewed the declarations presented by the parties. The Court finds that based on the declaration of Plaintiff’s counsel, Jonathan M. Kashani (“Kashani”), the delay in providing verifications until September 11, 2020 was not willful. Kashani’s declaration sets forth that that on June 22, 2020, Plaintiff executed the discovery verifications at issue, but high employee turnover and an expansion of his law firm occurred. The declarations filed in connection with the moving and reply papers do not state facts showing that Plaintiff’s delay in providing verifications was willful. Imposing monetary sanctions against Plaintiff—given that verifications have been served—would amount to punishment.

Therefore, the Court DENIES Defendants’ request for monetary sanctions in the amount of $4,738.56.

Defendants’ motion is DENIED in its entirety.

Moving parties are ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 23rd day of October 2020

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: 19STCV38436    Hearing Date: September 21, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

GITI SHOUSHANI,

Plaintiff,

vs.

SHAVER KORFF CASTRONOVO LLP, etc., et al.,

Defendants.

CASE NO.: 19STCV38436

[TENTATIVE] ORDER RE: DEMURRER TO PLAINTIFF’S COMPLAINT; MOTION TO STRIKE

Date: September 21, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Defendants Eve Korff and Shaver Korff Castronovo LLP

RESPONDING PARTY: Plaintiff Giti Shoushani

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiff filed a complaint arising from alleged legal malpractice in Ochoa v. Shoushani, Los Angeles Superior Court Case No. BC561285 (the “Underlying Action”). Plaintiff filed a complaint against Defendants alleging causes of action for: (1) professional negligence; and (2) breach of fiduciary duty.

On March 31, 2020, Defendants served their demurrer to the second cause of action in the complaint and accompanying motion to strike. On April 1, 2020, Defendants filed their demurrer to the second cause of action in the complaint. Defendants also filed their motion to strike portions of the complaint on April 1, 2020.

On July 24, 2020, the Court issued a notice of continuance and order indicating that the hearing on Defendants’ demurrer and motion to strike was continued from the previously set date of August 6, 2020 to September 2, 2020. A certificate of mailing was attached to the notice of continuance.

On August 28, 2020, Plaintiff filed an opposition to Defendants’ demurrer and motion to strike. Plaintiff’s opposition to the demurrer and motion to strike asserted that Plaintiff did not receive such pleadings due to the COVID-19 pandemic. Plaintiff contended that counsel was not aware of such motions until a notice of non-opposition to the motions was filed on August 26, 2020. Plaintiff requested that, pursuant to California Code of Civil Procedure, Section 473(b), the Court continue the hearing on Defendants’ demurrer and motion to strike so that the Court can consider a forthcoming opposition.

On August 31, 2020, the Court issued an order continuing the hearing on Defendants’ demurrer and motion to strike to September 21, 2020 in order for Plaintiffs to file a proper opposition. The Court’s order stated that the deadlines for the opposition and reply papers would be based on the September 21, 2020 hearing date.

On September 8, 2020, Plaintiff filed an opposition to the demurrer and motion to strike. On September 14, 2020, Defendants filed a consolidated reply in support of their demurrer and motion to strike.

MEET AND CONFER

The meet and confer requirement has been met.

JUDICIAL NOTICE

The Court GRANTS Defendants’ request for judicial notice.

DEMURRER

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Id.) “The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.” (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) With respect to a demurrer “[t]he complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) A court will sustain a demurrer without leave to amend if a plaintiff does not meet his or her burden in showing that “there is a reasonable possibility that the defect can be cured by amendment.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Issue No.1: Duplicative Nature of the Second Cause of Action

Defendants contend that the second cause of action for breach of fiduciary duty is duplicative of the first cause of action for professional negligence.

“[A] breach of fiduciary duty is a species of tort distinct from a cause of action for professional negligence.” (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1534.) “The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.” (Id.) “The attorney-client relationship is a fiduciary relation of the very highest character imposing on the attorney a duty to communicate to the client whatever information the attorney has or may acquire in relation to the subject matter of the transaction.” (Id.) “The elements of a cause of action for legal malpractice are (1) the attorney-client relationship or other basis for duty; (2) a negligent act or omission; (3) causation; and (4) damages.” (Id. at 1528.)

Based upon a review of the first and second causes of action asserted in the complaint, the Court finds that the first and second causes of action in the complaint are not duplicative of each other. The first cause of action is based on the alleged wrongful acts of Defendants such as: (1) advising that Plaintiff settle the Underlying Action in the amount of $1,500,000.00 (Complaint at ¶ 13); (2) advising and signing off on a mutual release against other parties in the Underlying Action despite knowing there had been fraud perpetrated against Plaintiff (Id.); and (3) failing to open a claim and obtain additional contribution for the vehicle accident which gave rise to the Underlying Action. (Id. at ¶ 9.)

Pursuant to the second cause of action, the alleged acts giving rise to that cause of action are: (1) Defendants putting the interests of Progressive West Insurance Company (“Progressive”) ahead of their fiduciary obligations to Plaintiff by willfully failing to advise Plaintiff about a potential bad faith insurance claim against Progressive; and (2) attempting to strong-arm Plaintiff to agree to a $1,500,000.00 settlement to cover up their negligence. (Id. at ¶ 21.) The first cause of action does not mention Defendants’ failure to advise Plaintiff about a potential bad faith claim against Progressive. Thus, the first and second causes of action are premised on different acts. Defendants’ citation to Awards Metal is not applicable to this action. (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135.)

Therefore, the Court finds that the second cause of action is not duplicative of the first cause of action.

Issue No.2: Legal Sufficiency of the Second Cause of Action

The Court finds that pursuant to the second cause of action in the complaint, Plaintiff has not alleged any damages. (Complaint at ¶¶ 19-21.) Plaintiff merely alleges that Defendants’ conduct was “so egregious to warrant the imposition of emotional distress and punitive damages” but Plaintiff does not state how she was damaged—or that she was even damaged at all—due to Defendants’ alleged breach of fiduciary duty. Plaintiff has not pled all the required elements to support a breach of fiduciary duty cause of action.

Therefore, the Court SUSTAINS the demurrer of Defendants to the second cause of action in the complaint with 20 days leave to amend.

MOTION TO STRIKE

Defendants filed a motion to strike punitive damages in connection with the second cause of action as well as the reference to emotional distress damages thereto.

Legal Standard

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) California Civil Code, Section 3294 authorizes punitive damages upon a showing of malice, fraud, or oppression. Malice is defined as either “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)(1).) “Despicable conduct is 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. (1992) 4 Cal. App. 4th 306, 331.) Fraud under California Civil Code, Section 3294(c)(3) “means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” California Civil Code, Section 3294(2) defines oppression as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Punitive damages thus require more than the mere commission of a tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.) Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.)

Analysis

Given that the second cause of action is insufficiently pled, as indicated above in connection with the demurrer to the complaint, the Court finds that punitive damages are not warranted. The same reasoning applies to Plaintiff’s request for emotional distress damages pursuant to the second cause of action. Even if the second cause of action had sufficiently alleged the element of damages, however, the Court finds that the complaint would not state sufficient facts to show malice, fraud, or oppression to warrant the imposition of punitive damages.

Therefore, the Court GRANTS Defendants’ motion to strike with 20 days leave to amend.

Moving parties are ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 21st day of September 2020

Hon. Holly J. Fujie

Judge of the Superior Court

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