This case was last updated from Los Angeles County Superior Courts on 12/27/2021 at 05:09:08 (UTC).

HAYDEH MOTAVASSEL VS INSUK SUK KIM, ET AL.

Case Summary

On 05/06/2021 HAYDEH MOTAVASSEL filed a Property - Other Property Fraud lawsuit against INSUK SUK KIM,. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0843

  • Filing Date:

    05/06/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Property Fraud

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JON R. TAKASUGI

 

Party Details

Plaintiff

MOTAVASSEL HAYDEH

Defendants

NGUYEN MIHN

HOSKINS DISHONDRA DENISE

MARSHALL DANIEL

LEATHERWOOD TOI'YA

MIZE REXINA

KIM INSUK SUK ALIAS IN SUK KIM

MIZE DIAMANTE

Attorney/Law Firm Details

Plaintiff Attorney

PAYA B BRIAN

Defendant Attorneys

OHN GERALD

AHDOOT JASON DAVID

 

Court Documents

Notice - NOTICE NOTICE OF RULING GRANTING SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CALIFORNIA CIVIL PROCEDURE CODE SECTION 425.16

11/19/2021: Notice - NOTICE NOTICE OF RULING GRANTING SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CALIFORNIA CIVIL PROCEDURE CODE SECTION 425.16

Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANTS NOTICE OF RELATED CASES; DECLARATION OF JASON STILLMAN IN SUPPORT THEREOF

11/23/2021: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANTS NOTICE OF RELATED CASES; DECLARATION OF JASON STILLMAN IN SUPPORT THEREOF

Notice of Change of Address or Other Contact Information

12/9/2021: Notice of Change of Address or Other Contact Information

Minute Order - MINUTE ORDER (HEARING ON SPECIAL MOTION TO STRIKE UNDER CCP SECTION 425.16 ...)

10/26/2021: Minute Order - MINUTE ORDER (HEARING ON SPECIAL MOTION TO STRIKE UNDER CCP SECTION 425.16 ...)

Notice of Ruling

11/10/2021: Notice of Ruling

Proof of Service (not Summons and Complaint)

10/19/2021: Proof of Service (not Summons and Complaint)

Objection - OBJECTION TO THE DECLARATION OF HYDEH MOTAVASSEL IN SUPPORT OF OPPOSING SPECIAL MOTION TO STRIKE ACTION AGAINST CONSTITUTIONALLY PRIVILEGED CONDUCT (SLAPP SUIT)

10/19/2021: Objection - OBJECTION TO THE DECLARATION OF HYDEH MOTAVASSEL IN SUPPORT OF OPPOSING SPECIAL MOTION TO STRIKE ACTION AGAINST CONSTITUTIONALLY PRIVILEGED CONDUCT (SLAPP SUIT)

Reply - REPLY ON SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CALIFORNIA CIVIL PROCEDURE CODE SECTION 425.16

10/19/2021: Reply - REPLY ON SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CALIFORNIA CIVIL PROCEDURE CODE SECTION 425.16

Reply - REPLY RE DEMURRER TO COMPLAINT

10/19/2021: Reply - REPLY RE DEMURRER TO COMPLAINT

Opposition - OPPOSITION OF PLAINTIFF HAYDEH MOTAVASSEL TO DEMURRER OF IN SUK KIM AND DANIEL MARSHALL

10/12/2021: Opposition - OPPOSITION OF PLAINTIFF HAYDEH MOTAVASSEL TO DEMURRER OF IN SUK KIM AND DANIEL MARSHALL

Declaration - DECLARATION OF HAYDEH MOTAVASSEL IN SUPPORT OF OPPOSING SPECIAL MOTION TO STRIKE ACTION AGAINST CONSTITUTIONALLY PRIVILEGED CONDUCT (SLAPP SUIT) [CODE CIV. PROC. 425.16(B)]GROUNDS FOR

10/12/2021: Declaration - DECLARATION OF HAYDEH MOTAVASSEL IN SUPPORT OF OPPOSING SPECIAL MOTION TO STRIKE ACTION AGAINST CONSTITUTIONALLY PRIVILEGED CONDUCT (SLAPP SUIT) [CODE CIV. PROC. 425.16(B)]GROUNDS FOR

Opposition - OPPOSITION TO SPECIAL MOTION TO STRIKE ACTION AGAINST CONSTITUTIONALLY PRIVILEGED CONDUCT (SLAPP SUIT) [CODE CIV. PROC. 425.16(B)] GROUNDS FOR MOTION LACKING

10/12/2021: Opposition - OPPOSITION TO SPECIAL MOTION TO STRIKE ACTION AGAINST CONSTITUTIONALLY PRIVILEGED CONDUCT (SLAPP SUIT) [CODE CIV. PROC. 425.16(B)] GROUNDS FOR MOTION LACKING

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 08/06/2021

8/6/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 08/06/2021

Minute Order - MINUTE ORDER (COURT ORDER) OF 08/06/2021

8/6/2021: Minute Order - MINUTE ORDER (COURT ORDER) OF 08/06/2021

Case Management Statement

8/16/2021: Case Management Statement

Case Management Statement

8/17/2021: Case Management Statement

Case Management Statement

8/20/2021: Case Management Statement

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

8/23/2021: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

34 More Documents Available

 

Docket Entries

  • 02/21/2023
  • Hearing02/21/2023 at 10:00 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 02/09/2023
  • Hearing02/09/2023 at 10:00 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 03/09/2022
  • Hearing03/09/2022 at 08:30 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 12/09/2021
  • DocketNotice of Change of Address or Other Contact Information; Filed by Gerald Ohn (Attorney)

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  • 11/23/2021
  • DocketOpposition (PLAINTIFF?S OPPOSITION TO DEFENDANTS? NOTICE OF RELATED CASES; DECLARATION OF JASON STILLMAN IN SUPPORT THEREOF); Filed by Haydeh Motavassel (Plaintiff)

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  • 11/19/2021
  • DocketNotice (NOTICE OF RULING GRANTING SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CALIFORNIA CIVIL PROCEDURE CODE SECTION 425.16); Filed by Dishondra Denise Hoskins (Defendant)

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  • 11/10/2021
  • DocketNotice of Ruling; Filed by INSUK SUK KIM (Defendant); Daniel Marshall (Defendant)

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  • 11/02/2021
  • Docketat 08:30 AM in Department P; Case Management Conference - Not Held - Taken Off Calendar by Court

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  • 10/26/2021
  • Docketat 09:30 AM in Department 17, Jon R. Takasugi, Presiding; Hearing on Demurrer - without Motion to Strike - Held

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  • 10/26/2021
  • Docketat 09:30 AM in Department 17, Jon R. Takasugi, Presiding; Case Management Conference - Held

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37 More Docket Entries
  • 05/13/2021
  • DocketProof of Personal Service; Filed by Haydeh Motavassel (Plaintiff)

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  • 05/13/2021
  • DocketProof of Service by Substituted Service; Filed by Haydeh Motavassel (Plaintiff)

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  • 05/13/2021
  • DocketProof of Service by Substituted Service; Filed by Haydeh Motavassel (Plaintiff)

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  • 05/13/2021
  • DocketProof of Personal Service; Filed by Haydeh Motavassel (Plaintiff)

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  • 05/13/2021
  • DocketProof of Service by Substituted Service; Filed by Haydeh Motavassel (Plaintiff)

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  • 05/06/2021
  • DocketSummons (on Complaint); Filed by Haydeh Motavassel (Plaintiff)

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  • 05/06/2021
  • DocketCivil Case Cover Sheet; Filed by Haydeh Motavassel (Plaintiff)

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  • 05/06/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 05/06/2021
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 05/06/2021
  • DocketComplaint; Filed by Haydeh Motavassel (Plaintiff)

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Tentative Rulings

Case Number: *******0843 Hearing Date: November 30, 2022 Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

HAYDEH MOTAVASSEL

vs.

INSUK SUK KIM, et al.

Case No.: *******0843

Hearing Date: November 30, 2022

Defendants’ demurrer is SUSTAINED IN PART, OVERRULED IN PART:

- Defendants’ demurrer is OVERRULED as to the first and fourth causes of action

- Defendants’ demurrer is SUSTAINED, WITH 10 DAYS LEAVE TO AMEND as to the conversion cause of action

- Defendants’ demurrer is SUSTAINED, WITHOUT LEAVE TO AMEND as to the second cause of action.

On 5/6/2021, Plaintiff Haydeh Motavassel (Plaintiff) initiated this action.

On7/5/2022, Plaintiff filed a second amended complaint (SAC) alleging: (1) elder financial abuse; (2) fraudulent misrepresentation; (3) conversion; and (4) intentional infliction of emotional distress.

Now, Defendant In Suk Kim and Daniel Marshall (collectively, Defendants) demur to Plaintiff’s SAC.

Discussion

I. Elder Financial Abuse

Defendants argue that this cause of action is time-barred, violates the sham-pleadings doctrine, and fails to join parties.

The Court disagrees on both counts.

As to the first point, while Plaintiff alleges violations dating back to 2014, Plaintiff alleges that the same abuse was ongoing from 2014 to present. Thus, because it is possible that Plaintiff may be able to avoid the statute of limitations based on the continuing violation doctrine, the claim is not properly disposed on at the demurrer stage.

As to the second point, the sham-pleadings doctrine is not implicated in this cause of action. While Plaintiff’s original Complaint alleged conduct by a number of conspiring Defendants, even Plaintiff’s original Complaint alleged: “On or about the beginning of 2015, MOTAVASSEL is informed and believes, and thereupon alleges that KIM and MARSHALL, using the pretense of the broken lockbox, gained access to the checks without the consent of MOTAVASSEL, making the representation to MOTAVASSEL that KIM would deliver the rent checks to MOTAVASSEL.” (Complaint 25.) As such, Plaintiff’s allegations regarding Defendants’ alleged financial abuse of Defendants has been internally consistent.

Finally, as to the third point, Plaintiff no longer asserts a conspiracy cause of action, and the allegations cited by Defendants of a conspiracy are from the FAC, not the SAC. As such, Plaintiff has not failed to join necessary or indispensable parties.

Based on the foregoing, Defendants’ demurrer to the first cause of action is overruled.

II. Fraudulent Misrepresentation

Defendants argue that this cause of action is improperly asserted because it exceeded the scope of leave to amend.

The Court agrees. Plaintiff’s original Complaint asserted a cause of action for fraud by concealment. Then, without seeking leave to amend, Plaintiff changed this cause of action to fraudulent misrepresentation. As this Court already noted in its 10/22/2021 ruling, “Plaintiff must either allege facts which could show concealment rather misrepresentations, or must seek leave to amend to add another cause of action.” (See 10/22/21 ruling at Page 9.)

Given Plaintiff’s failure to allege any facts to show concealment, it appears that Plaintiff has no intention to allege fraudulent concealment. As such, Plaintiff must seek leave to amend to assert a new cause of action.

Based on the foregoing, Defendants’ demurrer to this cause of action is sustained, without leave to amend.

III. Conversion

Defendants argue that Plaintiffs have failed to allege sufficient facts to state a claim for conversion because they do not allege a certain sum.

The Court agrees.

Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” Lee v. Hanley (2015) 61Cal.4th 1225, 1240. “[I]t is generally acknowledged that conversion is a tort that may be committed only with relation to personal property and not real property” (Munger v. Moore (1970) 11 Cal.App.3d 1, 7. In addition, [m]oney cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment.’ A ‘generalized claim for money [is] not actionable as conversion” (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384,395.)

Here, Plaintiff alleges, “As a direct and proximate result of DEFENDANTS wrongful conduct, MOTAVASSEL sustained damages in a sum not now known, but which will be proved at trial.” (SAC 61.) Not only does this fail to specify a specific amount as required, but, as noted by Defendants, it is “still unclear as to what has been converted, the amount and under what circumstances.” (Demurrer, 11: 10-11.)

Based on the foregoing, Defendants’ demurrer to the third cause of action is sustained, with 10 days leave to amend.

IV. Intentional Infliction of Emotional Distress

Defendants argue that Plaintiffs cannot state a claim for IIED because they failed to join indispensable or necessary parties, the claim is barred by the statute of limitations, and the facts alleged do not rise to the level required to support an IIED claim.

However, as to the first and second points, Plaintiff no longer asserts a cause of action for conspiracy and alleges an ongoing violation from 2014 to present. Moreover, Plaintiff’s allegations that Defendants here knowingly misappropriated rent checks is sufficient at the pleading stage to show extreme and outrageous conduct which could support a claim for IIED.

Based on the foregoing, Defendants’ demurrer to the fourth cause of action is overruled.

It is so ordered.

Dated: November , 2022

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.



Case Number: *******0843 Hearing Date: October 18, 2022 Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

HAYDEH MOTAVASSEL

vs.

INSUK SUK KIM, et al.

Case No.: *******0843

Hearing Date: October 18, 2022

Kim’s motion for leave to amend to file a FAXC is GRANTED.

On 5/6/2021, Plaintiff Haydeh Motavassel (Plaintiff) initiated this action.

On 11/24/2021, Plaintiff filed a first amended complaint (FAC) alleging: (1) elder financial abuse; (2) fraudulent misrepresentation; (3) conversion; (4) intentional infliction of emotional distress; and (5) civil conspiracy.

Now, Defendant/Cross-Complainant In Suk Kim (Kim) moves to file a first amended cross-complaint (FAXC).

Discussion

Kim seeks to add two FEHA causes of action for racial harassment and discrimination, an alternative employment termination claim for retaliation in violation of Labor Code section 1102.5, applicable wage and hour claims, and a cause of action for bad faith withholding of a security deposit.

Kim argues that she only just learned of these causes of actions after responding to Cross-Defendant’s first set of written discovery requests on 7/19/2022, and that no meaningful prejudice will result because the “great majority of the changes set forth in the First Amended Cross Complaint are based on the same set of facts,” neither party has taken a deposition yet, there is little, to no new discovery that will be necessary, and trial is not until 2/21/2023. (Motion, 3: 20-22.)

“Where a party is allowed to prove facts to establish one cause of action, an amendment which would allow the same facts to establish another cause of action is favored, and a trial court abuses its discretion by prohibiting such an amendment when it would not prejudice another party.” (Brady v. Elixir Industries (1987) 196 Cal.App.3d 1299, 1303 disapproved on other grounds in Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244-1251.)

Given that Kim’s proposed amendments are substantially based on already alleged facts, and discovery is still in the early stages, the Court finds no meaningful prejudice would result if leave to amend were granted.

Based on the foregoing, Kim’s motion for leave to amend to file a FAXC is granted.

It is so ordered.

Dated: October , 2022

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.



Case Number: *******0843 Hearing Date: June 15, 2022 Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

HAYDEH MOTAVASSEL

vs.

INSUK SUK KIM, et al.

Case No.: *******0843

Hearing Date: June 15, 2022

Defendant’s demurrer to the FAC is SUSTAINED, WITH 10 DAYS LEAVE TO AMEND.

On 5/6/2021, Plaintiff Haydeh Motavassel (Plaintiff) initiated this action.

On 11/24/2021, Plaintiff filed a first amended complaint (FAC) alleging: (1) elder financial abuse; (2) fraudulent misrepresentation; (3) conversion; (4) intentional infliction of emotional distress; and (5) civil conspiracy.

Now, Defendant In Suk Kim and Daniel Marshall (collectively, Defendants) demur to Plaintiff’s FAC.

Timeliness

In opposition, Plaintiff argues that Defendants’ demurrer is untimely. However, Plaintiff’s argument is based on a contention that the FAC was served on 11/24/2021, yet, counsel’s declaration states that “[m]y assistant tells me that the service copy of the First Amended Complaints have been returned for whatever reason.” (Paya Decl., 4.) As such, Plaintiff’s own evidence indicates that initial service of the FAC was ineffective. Clearly, the time to demurrer did not start to run until the FAC had been properly served.

Defendants’ counsel submitted evidence that it first received the FAC by email on 1/4/2022. Electronic service adds 2 court days to the initial 30 days to respond provided by CCP 471.5 (See CCP 1010.6(a)(4), CRC 2.250 et. seq.). The 30th day after 1/4/2022 was 2/3/2022, and 2 court days after that was 2/7/2022. This demurrer was filed and served on 2/7/2022, and thus is considered timely.

Discussion

Plaintiff’s FAC is so fatally uncertain that the Court cannot reach the substantive arguments by Defendants.

Plaintiff has apparently modified the parties being sued in this action without any corresponding dismissals. The original Complaint was asserted against Insuk Suk Kim aka In Suk Kim, Dishondra Denise Hoskins, Daniel Marshall, Rexina Mize, Toi’ya Leatherwood, Mihn Nguyen, and Diamante Mize. Now, the FAC only includes Kim and Marshall as Defendants, and each individual cause of action lists only these two Defendants. However, there have been no dismissals filed in this action.

Moreover, the body of the FAC continues to allege improper conduct by Defendants from the Original Complaint. For example, Plaintiff alleges “MOTAVASSEL is informed and believes, and thereupon alleges that on or about May of 2019, DEFENDANTS, HOSKINS and MIZE, in furtherance of the conspiracy, vandalized the utilities and appliances of the PROPERTY.” (FAC 40.) Another example: On or about January of 2020, MIZE entered into a residential lease agreement with the TRUST. “MOTAVASSEL is informed and believes, and thereupon alleges that DEFENDANTS placed, induced or otherwise colluded with MIZE that MIZE should take residence at the PROPERTY so that they can financially defraud the TRUST and by extension MOTAVASSEL individually. HOSKINS and MIZE shall be collectively referred to as “CONSPIRING TENANTS.” (FAC 43.)

As such, it is entirely unclear who remains a Defendant in this action, and what conduct (and by whom) Plaintiff’s claims are based on. It goes without saying that Plaintiff may not assert claims against Defendants Kim and Marshall based on conduct which they did not participate in. (See e.g. FAC 40.) Moreover, Plaintiff may not continue to allege a conspiracy by all Defendants named in the original Complaint, and seek relief for acts committed by the collective conspiracy, and then only pursue claims against Defendant Kim and Marshall.

In opposition, Plaintiff did not address any of these issues, but rather addressed the sole issue of timeliness.

In amending her FAC, the Court notes that Plaintiff’s amendments must comply with the sham pleading doctrine. If Plaintiff intends to allege that Defendants here committed acts which were previously alleged to have been committed by other Defendants, Plaintiff must allege facts which could explain this change.

It is so ordered.

Dated: June , 2022

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.



Case Number: *******0843 Hearing Date: June 7, 2022 Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

HAYDEH MOTAVASSEL

vs.

INSUK SUK KIM, et al.

Case No.: *******0843

Hearing Date: June 7, 2022

Defendants Dishondra Denise Hoskins, Rexina Mize, Toi’ya Leatherwood, Mihn Nguyen, and Diamante Mize are awarded $15,700 in reasonable attorney fees, and $2,493.95 in costs.

On 5/6/2021, Plaintiff Haydeh Motavassel filed suit against Insuk Suk Kim aka In Suk Kim, Dishondra Denise Hoskins, Daniel Marshall, Rexina Mize, Toi’ya Leatherwood, Mihn Nguyen, and Diamante Mize, alleging: (1) elder financial abuse; (2) fraud by concealment; (3) conversion; (4) intentional infliction of emotional distress; (5) civil conspiracy; and (6) intentional interference with contractual relations.

On 10/26/2021, the Court granted Defendants Dishondra Denise Hoskins’s, Rexina Mize’s, Toi’ya Leatherwood’s, Mihn Nguyen’s, and Diamante Mize’s (collectively, Defendants) special motion to strike.

Now, Defendants seek to recover $40,818.95 in fees and costs incurred as prevailing parties in their special motion to strike.

Legal Standard

The party claiming attorneys’ fees must establish entitlement to such fees and the reasonableness of the fees claimed. (Civic Western Corporation v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16.) “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties[.]” (CCP 1021.)

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion.” (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) In exercising its discretion, the court should consider a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in handling the matter, the attention given, the success or failure, and the resulting judgment. (Ibid.)

In determining what constitutes a reasonable compensation for an attorney who has rendered services in connection with a legal proceeding, the court may and should consider the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorneys’ efforts, their learning, their age, and their experience in the particular type of work demanded the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed. (Stokus v. Marsh (1990) 217 Cal.App.3d 647, 657 (Stokus).)

In determining the proper amount of fees to award, courts use the lodestar method. The lodestar figure is calculated by multiplying the total number of reasonable hours expended by the reasonable hourly rate. “Fundamental to its determination … [is] a careful compilation of the time spent and reasonable hourly compensation of each attorney … in the presentation of the case.” (Serrano v. Priest (1977) 20 Cal.3d 25, 48 (Serrano III).) A reasonable hourly rate must reflect the skill and experience of the attorney. (Id. at 49.) Prevailing parties are compensated for hours reasonably spent on fee-related issues. A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635 (Serrano IV); see also Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587 (“The trial court could make its own evaluation of the reasonable worth of the work done in light of the nature of the case, and of the credibility of counsel’s declaration unsubstantiated by time records and billing statements.”)

Reasonable attorney fees should be based on an objective standard of reasonableness, i.e., the market value of services rendered, not on some notion of cost incurred. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1090.) The value of legal services performed in a case is a matter in which the trial court has its own expertise. (Id. at 1096.) The trial court may make its own determination of the value of the services contrary to, or without the necessity for, expert testimony. (Ibid.) The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case. (Ibid.)

Discussion

Here, Defendants were the prevailing party on the Anti-SLAPP motion, and thus are entitled to mandatory attorneys fees and costs. (CCP 425.16, subd. (c)(1) , “A defendant who prevails on a special motion to strike … shall be entitled to recover his or attorney’s fees and costs.”)

Defendants claim to have incurred $26,985 in attorneys’ fees related to the Anti-SLAPP motion, $2,240 in attorneys’ fees on other issues, $4,200 in attorneys’ fees to date related to this fee motion, and anticipate incurring approximately $4,900 in estimated additional attorneys’ fees related to the reply and hearing on this motion. Defendants have incurred a total of $2,493.95 in costs.

Rates

Gerald S. Ohn claims $700 an hour. Mr. Ohn joined the State Bar in 2001, and specializes in civil rights litigation, mass torts, habitability cases, and other complex litigation, including class actions. In justification of this hourly rate, Mr. Ohn states that this figure is consistent with rates charged by attorneys with comparable experience, and is justified based on his own experience and the skill set he brought to the case. However, Mr. Ohn has not convincingly shown that this case—a habitability case—presented complex or novel issues, especially given that Mr. Ohn considers himself highly experienced in this litigation area. Indeed, Mr. Ohn makes no real effort to justify this hourly rate in terms of the current litigation, but rather provides extensive evidence of his hourly rates in unrelated class action law suits. Given that a reasonably hourly rate is shaped by the case at hand, and this case is not a class action suit, the Court finds the persuasive value of this evidence to be limited. After a consideration of the relevant factors, including the duration of the litigation, the difficulty of the litigation, the skill required, and the contingency nature of the case, the Court finds that a reasonable hourly rate for an attorney with similar skill and experience is $600.00 an hour. (Stokus v. Marsh (1990) 217 Cal.App.3d 647, 657 (Stokus).)

Pamela Prieto claims $350 hour. Ms. Prieto was admitted to the New York State Bar in 2014 and the California State Bar in 2017. While Ms. Prieto did not submit a declaration justifying this rate, Mr. Ohn stated this rate was justified based on the nature and scope of the litigation. After a consideration of the relevant factors, including the duration of the litigation, the difficulty of the litigation, the skill required, and the contingency nature of the case, the Court finds that Ms. Prieto’s rate of $350 an hour is reasonable. (Stokus, supra, 217 Cal.App.3d p. 657.)

Hours

Mr. Ohn claims a total of 42.3 hours worked. A careful review of Mr. Ohn’s submitted hours shows that a significant portion of his billing was for case correspondence and review. Indeed, out of his 21 billing entries, 13 are exclusively correspondence, and only 8 relate to any substantive legal work.

Moreover, with respect to these billing entries, the annotations are frequently vague, stating “correspondence with [Plaintiff],” “review correspondence” or “review and analyze pleadings and documents” without providing any additional explanation. As a result, it is difficult for the Court to determine the reasonableness of these billed-for hours and whether they relate to representation specifically in this Anti-SLAPP motion or representation overall. Given the Court’s power to make “across-the-board percentage cuts either in the numbers of hours claimed or in the final lodestar figure,” the Court finds only 25 hours reasonably spent. (Gonzalez v. City of Maywood (9th Cir. 2013) 729 F.3d 1196, 1203 (Gonzalez). ($600 x 25 hrs = $15,000.)

Ms. Prieto did not submit a declaration authenticating her billing records, but billing records identifying Ms. Prieto as the user claim 10.9 hours worked. Of 7 billing entries, 4 were for email and correspondence. The remaining entries show that Ms. Prieto provided “research on elements for the causes of action against Subject Defendants,” revised and finalized objections, and appeared at the anti-SLAPP hearing. Given that Mr. Ohn also billed for legal research on the anti-SLAPP motion and for drafting, revising, and editing objections, Ms. Prieto’s contributions appear to be “excessive, redundant, or otherwise unnecessary.” (Hensley v. Eckerhart, 461 U.S. 424, 434.) This is especially true in light of her limited involvement. Accordingly, the Court finds only 2 hours reasonable for preparation and appearance at the anti-SLAPP hearing. ($350 x 2= $700.)

Based on the foregoing, Defendants are awarded $15,700 in reasonable attorney fees.

Costs

Defendants seek $2,493.95 in costs, and attached a verified memorandum of costs setting forth these costs. (Ohn Decl., Exh. J.)

Verification of the memorandum of costs by the prevailing party’s attorney establishes a prima facie showing that the claimed costs are proper. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.) To overcome this prima facie showing, the objecting party must introduce evidence to support its claim that the costs are not reasonably necessary. (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.)

Here, Plaintiff did not object to any specific costs as not reasonably necessary.

Based on the foregoing, Defendants are awarded $2,493.95 in costs.

It is so ordered.

Dated: June , 2022

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.



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Case Number: *******0843 Hearing Date: October 26, 2021 Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

HAYDEH MOTAVASSEL

vs.

INSUK SUK KIM, et al.

Case No.: *******0843

Hearing Date: October 26, 2021

Defendants Dishondra Denise Hoskins’s, Rexina Mize’s, Toi’ya Leatherwood’s, Mihn Nguyen’s, and Diamante Mize’s special motion to strike is GRANTED.

On 5/6/2021, Plaintiff Haydeh Motavassel filed suit against Insuk Suk Kim aka In Suk Kim, Dishondra Denise Hoskins, Daniel Marshall, Rexina Mize, Toi’ya Leatherwood, Mihn Nguyen, and Diamante Mize, alleging: (1) elder financial abuse; (2) fraud by concealment; (3) conversion; (4) intentional infliction of emotional distress; (5) civil conspiracy; and (6) intentional interference with contractual relations.

Now, Defendant Dishondra Denise Hoskins, Rexina Mize, Toi’ya Leatherwood, Mihn Nguyen, and Diamante Mize (collectively, Defendants) move for a special motion to strike Plaintiff’s Complaint. Only the first, fourth, and fifth causes of action are asserted against Defendants.

Legal Standard

A court employs a two-step analysis in determining whether a claim should be stricken under the anti-SLAPP statute. “In the first step, the defendant bears the initial burden of making a prima facie showing that the claim ‘aris[es] from any act of that person in furtherance of the person\'s right of petition or free speech.’ [Citation].” (Lee v. Silveira (2016) 6 Cal.App.5th 527, 538 (Lee).) If the defendant meets this threshold burden, in the second step the burden then shifts to the plaintiff to ‘establish[] that there is a probability that the plaintiff will prevail on the claim.’ [Citation]” (Lee, supra, 6 Cal.App.5th at p. 538.)

Subdivision (e) of section 425.16 provides that an ‘‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”

Timeliness

Plaintiff contends that Defendant’s motion is untimely. However, given that Plaintiff was able to substantively oppose the motion, the Court finds insufficient evidence of prejudice. Accordingly, the Court considers the motion on its merits.

Discussion

I. Protected Activity

Defendants argue that Plaintiff’s claims against them are based on conduct taken in furtherance of their right to petition. More specifically, Defendants argue that Plaintiff is pursuing this claim against them based on their submission of Applications for a Rent Decrease to the City of West Hollywood and for the initiation of a habitability lawsuit against Plaintiff based on the uninhabitable conditions at their units. (Motion, 8:25-27.)

The Court agrees. Here, the gravamen of Plaintiff’s Complaint against Defendants is that they allegedly filed false reports of unhabitable conditions at Plaintiff’s property to the city of West Hollywood and demanded rent reductions, thereby financially exploiting Plaintiff. While Plaintiff alleges that Defendants actually created these conditions themselves in order to apply for a rent decrease and defrauded Plaintiff, the fact remains that the basis of alleged liability against Defendants is their lodging of complaints to the West Hollywood Code Compliance Division.

While Plaintiff argues that Defendants’ complaints do not qualify for protection under the anti-SLAPP statute because they were made in non-judicial proceedings, the anti-SLAPP statute embraces complaints beyond the formal judicial context. For example, in Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1295, the Court concluded that a state university manager’s communicative conduct in denying an employee’s administrative grievances for alleged sexual harassment in the workplace constituted a “written or oral statement or writing made in connection with issue under consideration or review by official proceeding authorized by law.” Here, similarly, Defendants’ acts of lodging administrative complaints with the City of West Hollywood constitute “a statement made in connection with an issue under consideration or review by… [an] official proceeding authorized by law” and thus falls squarely within protected activity under the anti-SLAPP statute. (Vergos, supra, 146 Cal.App.4th at p. 1295.)

Plaintiff also argues in opposition that gravamen of her Complaint against Defendants is the “[v]andalism of the appliances, [and] threats of a physical and legal nature” rather than their lodging of complaints with the City of West Hollywood. (Opp., 9:19.) However, Plaintiff’s conversion cause of action is not asserted against Defendants here, and Plaintiff does not assert any property-based tort cause of action against Defendants for alleged vandalism. Moreover, Plaintiff’s financial elder abuse cause of action alleges harm based, in part, on “paying rents in amounts less than the contract amount….” Defendants’ grounds for paying less rent were their contentions—lodged with the City of West Hollywood—that unhabitable conditions were being maintained on the property. Indeed, Plaintiff herself alleges that “CONSPIRING DEFENDANTS have conspired to use the official City enforcement to financially defraud MOTAVASSEL by intentionally damaging appliances and utilities so that CONSPIRING DEFENDANTS can have an affirmative defense for partial or nonpayment of rent.” (Complaint ¶ 48.)

Finally, Plaintiff argues that Defendants are not entitled to the protections of the anti-SLAPP statute because they were engaging in illegal conduct. However, the illegality exception is narrow and only applies where the activity is clearly illegal as a matter of law. For example, in Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, the Court of Appeal found that the illegality of defendants’ conduct exempted them from the anti-SLAPP protections because “defendants have effectively conceded the illegal nature of their election campaign finance activities for which they claim constitutional protection ... as a matter of law…” The Court then went on to emphasize that “there was no dispute on the point” but “had there been a factual dispute as to the legality of defendants\' actions, then we could not so easily have disposed of defendants\' motion.” (Ibid.) Here, Plaintiff has not submitted any evidence that Defendants are either currently under investigation for filing fraudulent habitability claims, or that they have been found to be guilty of these crimes. Accordingly, given that Defendants have neither “conceded nor does the evidence conclusively establish the illegality of” Defendants’ conduct” the illegality exception is not appropriately applied here. (Ibid.)

In sum, the Court concludes that Defendants’ evidence establishes that the claims against them arise out of protected activity. Having satisfied their burden to show that Plaintiff’s claim arises from an act in furtherance of the person’s right of petition, the burden shifts to Plaintiff to establish a probability that the Plaintiff will prevail on the claim. (Lee, supra, 6 Cal.App.5th at p. 538.)

II. Probability of Prevailing

Civil Code section 47(b) provides an absolute privilege for communications made in any legislative proceeding, in any judicial proceeding, in any other official proceeding authorized by law, or in the initiation or course of any other proceeding authorized by law. (See Civ. Code, ; 47(b); Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 360.) Section 47(b) bars all tort causes of action except malicious prosecution. (See Hagberg, supra, 32 Cal.4th at 360.) A report made to the police is subject to the privilege of section 47(b). (See Buchanan v. Maxfield Enterprises, Inc. (2005) 130 Cal.App.4th 418, 424.) Section 47(b) only applies to communicative acts, not tortious conduct. (Id. at 423.) “The threshold issue in determining whether the litigation privilege applies is whether the defendant’s conduct was communicative or noncommunicative.” (Id.)

Here, Plaintiff’s claims against Defendants are based on their lodging of complaints with the City of West Hollywood, and their requests for rent reduction based on those Complaints, which resulted in Plaintiff having to defend against complaints of unhabitable conditions on the property and deprived her of rental income. As such, Plaintiff’s Complaint squarely aims at Defendants’ communicative conduct of petitioning for redress. That these complaints were made in anticipation of litigation, and are thus protected by the litigation privilege, is made clear by the fact that Defendants did, in fact, file a habitability lawsuit against Plaintiff based on the reported conditions at the property and which is currently pending before this Court. (See Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268 noting that communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege.)

Accordingly, the communications at issue here are absolutely privileged, and Defendants are immune from liability on the basis of these communications. Because these communications form the basis of Plaintiff’s claims against Defendants, Plaintiff cannot establish a probability of prevailing of her claims against them.

Based on the foregoing, Defendants’ anti-SLAPP motion is granted.

It is so ordered.

Dated: October , 2021

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

HAYDEH MOTAVASSEL

vs.

INSUK SUK KIM, et al.

Case No.: *******0843

Hearing Date: October 26, 2021

Defendants’ demurrer is OVERRULED IN PART, SUSTAINED IN PART:

-Defendants’ demurrer is sustained, with 30 days leave to amend as to all claims against Defendant Marshall

-Defendants’ demurrer is sustained, with 30 days leave to amend as to the second, third, fifth, and sixth causes of action as to Defendant Kim

-Defendants’ demurrer is overruled as to the first and fourth causes of action as to Defendant Kim.

On 5/6/2021, Plaintiff Haydeh Motavassel filed suit against Insuk Suk Kim aka In Suk Kim, Dishondra Denise Hoskins, Daniel Marshall, Rexina Mize, Toi’ya Leatherwood, Mihn Nguyen, and Diamante Mize, alleging: (1) elder financial abuse; (2) fraud by concealment; (3) conversion; (4) intentional infliction of emotional distress; (5) civil conspiracy; and (6) intentional interference with contractual relations.

Now, Defendant In Suk Kim and Daniel Marshall (collectively, Defendants) demur to Plaintiff’s Complaint.

Discussion

I. Elder Financial Abuse

Defendants argue that Plaintiff has not alleged elder financial abuse with the requisite particularity, and that the claim is time-barred.

Abuse of an elder or dependent adult includes recklessness, oppression, fraud, or malice in the commission of physical abuse, neglect, or financial abuse against an elderly or dependent adult. (Welfare & Institutions Code \'15610.07(a).) "Financial abuse" of an elder or dependent adult occurs when a person or entity does any of the following :

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

(2) Assists in taking, secreting, appropriating, or retaining real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both. (Welfare & Institutions Code \'15610.30(a).

Here, Defendant alleges:

- Defendants manipulated, broke or otherwise damaged a lockbox, which was installed at the property (628 Westbourne Drive) where tenants were instructed to and did place rent checks as custom and practice. (Complaint ¶ 24.)

- Under the pretense of the broken lockbox, Defendants gained access to the rent checks with Plaintiff’s consent, and represented that Defendant Kim would deliver the rent check to Plaintiff. (Complaint ¶ 25.)

- Defendant Kim made representations that she was the owner of the property, and thus gained “unfettered access to rent checks.” (Complaint ¶ 28.)

- Defendant Kim took possession of the main unit of the property, and wrongfully took possession of storage unit and constructed an exit door to a unit. (Complaint ¶ 31.)

- In 2019, Defendant Kim misrepresented to Plaintiff that a tenant had fallen on the driveway and sought $2,500 to repair the driveway. Despite receiving the money, Defendant Kim made none of the repairs, and then later requested an additional $500.00. (Complaint ¶ 38.)

- Defendant Kim made additional misrepresentations beginning in 2019 through the end of 2020 about “obviously unverifiable” repairs and would demand either payment or rent reduction from Plaintiff.

While these allegations are sufficient to state a claim against Kim, they are insufficient to state a claim against Defendant Marshall. As pled, the only allegations against Marshall took place from 2014-2015. Given that there is a four year statute of limitations for financial elder abuse claims, and this claim was not initiated until 2021, Plaintiff’s claim against Marshall appears time-barred on its face.

However, Plaintiff’s allegations are sufficient at the pleading stage to state a claim against Defendant Kim. Plaintiff alleges that Defendant Kim engaged in a pattern of abuses from 2014 until late 2020 in which she allegedly either wrongfully obtained access to Plaintiff’s physical property, or defrauded Plaintiff into giving her money based on misrepresentations about property damage.

Based on the foregoing, Defendants’ demurrer to the first cause of action is sustained in part, overruled in part. Defendants’ demurrer is sustained as to Defendant Marshall, with 30 days leave to amend. Defendants’ demurrer is overruled as to Defendant Kim.

II. Fraud by Concealment

Defendants argue that Plaintiff’s claim for fraudulent concealment isn’t pled with the requisite specificity, and is time-barred.

“The elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 131.) Fraud by concealment requires allegations demonstrating the defendant was under a legal duty to disclose the allegedly omitted or concealed facts. (See Los Angeles Memorial Coliseum Commission v. Insomniac, Inc. (2015) 233 Cal.App.4th 803, 831.) A duty to disclose arises when: (1) there is a fiduciary relationship between the parties; (2) the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) the defendant actively conceals a material fact from the plaintiff; and (4) the defendant makes partial representations but also suppresses some material facts. (See id.)

Plaintiff’s claim here against Defendant Marshall is based on the same allegations that support his first cause of action. Given that fraud has a three-year statute of limitations, Plaintiff’s claim against Defendant Marshall necessarily appears to be time-barred here.

However, Plaintiff’s allegations against Defendant Kim are insufficient, but for different reasons. While Plaintiff alleges many instances of fraud taking place in 2019 and 2020, those alleged acts sound in fraudulent misrepresentations, not concealment. For example, Plaintiff alleges that Defendant Kim repeatedly misrepresented to him that there had been damages to the property that required payment. In doing so, Defendant Kim was not concealing materials facts, but was making misrepresentations which Plaintiff then allegedly relied upon. Plaintiff must either allege facts which could show concealment rather misrepresentations, or must seek leave to amend to add another cause of action.

Based on the foregoing, Defendants’ demurrer to the second cause of action is sustained, with 30 days leave to amend.

III. Conversion

Defendants argue that Plaintiff’s conversion claim is uncertain and time-barred.

“Conversion is the wrongful exercise of dominion over the property of another. The elements … are the plaintiff\'s ownership or right to possession of the property at the time of the conversion; the defendant’s conversion by a wrongful act or disposition of property rights; and damages. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use. [Citations.]” (Oakdale Village Group v. Fong (1996) 43 Cal.App.4th 539, 543–44.)

“Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491.)

Here, Plaintiff alleges that Defendants dispossessed Plaintiff of checks, and alleges that Defendants prevented Plaintiff from having access to the property. The former allegations are insufficient as a matter of law. For money to support a conversion action, a specific, identifiable sum must be alleged. Accordingly, Plaintiff must allege the precise dollar amount of each check in order to support a cause of action.

Plaintiff’s allegation that Defendant Kim took possession of the main unit of the property, and wrongfully took possession of storage unit and constructed an exit door to a unit would have been sufficient to show that Defendant Kim “applied the property to [her] own use.” (Complaint ¶ 31; Oakdale, supra, 43 Cal.app.4th at p. 543-44.) However, this took place in 2017, and thus appears time-barred by the statute of limitations. It is uncertain from Plaintiff’s Complaint when this conduct was discovered.

Based on the foregoing, Defendants’ demurrer to the third cause of action is sustained, with 30 days leave to amend.

IV. Intentional Infliction of Emotional Distress

Defendants argue that Plaintiff’s fourth cause of action is uncertain and barred by the statute of limitations.

The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.)

“For conduct to be outrageous, it “must be so extreme as to exceed all bounds of that usually tolerated by a civilized community. … [w]hether behavior is extreme and outrageous is a legal determination to be made by the court.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 171.) The statute of limitations for an intentional infliction of emotional distress claim is two years.

Here, Plaintiff alleges that Defendants intentionally damaged the property, and then lodged complaints against Plaintiff in order to cause Plaintiff to cover the “costs of inspection, detection, and repair on an ongoing basis.” (Complaint ¶ 47.) Plaintiff also alleges that Defendants took money from Plaintiff, reduced or refused to pay rent, and occupied portions of property. (See Complaint ¶¶ 78-84.)

However, the only specific allegations against Defendant Marshall took place from 2014-2015, and thus the claim against him appears time-barred on its face. As for Defendant Kim, the allegations against her run from 2014-2020 and thus do not run afoul of the statute of limitations.

Based on the foregoing, Defendants’ demurrer to the fourth cause of action is sustained, with 30 days leave to amend, as to Defendant Marshall, and overruled as to Defendant Kim.

V. Civil Conspiracy

Defendants argue that Plaintiff cannot state a claim for civil conspiracy, because she cannot state a claim on any of her derivative claims.

A claim for conspiracy must be based on a wrongful act and the claim must allege: (1) the formation and operation of the conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3) the damage resulting. (Unruh v. Truck Insurance Exchange (1972) 7 Cal. 3d 616, 631.)

As set forth above, Plaintiff has not set forth facts that could show Defendant Marshall’s involvement since 2014-2105, and thus the claims against him appear time-barred. There is additional uncertainty created by Plaintiff’s lack of allegations as to when the conspiracy was allegedly formed. Accordingly, there is uncertainty as to when the conspiracy was alleged formed and which acts were allegedly made pursuant to the conspiracy.

Based on the foregoing, Defendants’ demurrer to the fifth cause of action is sustained, with 30 days leave to amend.

VI. Intentional Interference with Contractual Relations

The elements for the tort of intentional interference with the performance of a contract are: “(1) a valid contract between plaintiff and another party; (2) defendant’s knowledge of the contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (Asahi Kasei Pharma Corporation v. Actelion Ltd. (2013) 222 Cal.App.4th 945, 958.)

A cause of action for interference with contractual relations does not lie against a party to the contract. (See Dryden v. Tri-Valley Growers (1977) 65 Cal.App.3d 990, 999.)

Here, Plaintiff alleges that:

- MOTAVASSEL is informed and believe and thereon allege that, in an effort to interfere with MOTAVASSELS’ rights, under the Agreement with Rea, Aviles, John Ward, Jose Tabares and Janet Green, KIM engaged in unfair, unlawful, or fraudulent acts or practices by engaging in a campaign of fear and intimidation to keep MOTAVASSEL from exercising their rights to possession and occupancy of the PROPERTY.

(Complaint ¶ 93.)

With respect to the alleged interference by Kim with Rea, Aviles, and Ward, Plaintiff alleges this conduct took place in 2012 and 2017 and thus falls after the three-year statute of limitations. While the alleged interference with Green took place in April 2020, Plaintiff has not alleged any facts which could show she was damaged by this interference. Plaintiff alleges that Kim forced Green out of the unit, but then replaced Green with another tenant. Accordingly, it is unclear whether or not Plaintiff suffered any temporary loss of rent, or other damage, as a result of the tenant replacement.

Based on the foregoing, Defendants’ demurrer to the sixth cause of action is sustained, with 30 days leave to amend.

It is so ordered.

Dated: October , 2021

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

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