This case was last updated from Los Angeles County Superior Courts on 10/20/2020 at 18:18:10 (UTC).

JP COHEN LLC VS RYAN A CHAICHI

Case Summary

On 04/12/2018 JP COHEN LLC filed a Contract - Other Contract lawsuit against RYAN A CHAICHI. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DAVID S. CUNNINGHAM III. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1813

  • Filing Date:

    04/12/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DAVID S. CUNNINGHAM III

 

Party Details

Plaintiff, Petitioner and Cross Defendant

JP COHEN LLC

Defendants, Respondents and Cross Plaintiffs

CHAICHI RYAN A.

COHEN JOSHUA

COHEN PARIS

Attorney/Law Firm Details

Plaintiff, Petitioner and Cross Defendant Attorneys

MCDONALD MICHAEL B.

KHANZADA MUHAMED TOUSEEF ESQ.

MCDONALD MICHAEL B. ESQ.

Defendant and Respondent Attorneys

T. KHAN

FOGLIGHT LAW

LAW FOGLIGHT

KHANZADA MUHAMED T.

KHAN T

KHANZADA MUHAMED T. ESQ.

KOHLER RYAN JOSEPH

KOHLER RYAN J.

KHAN T.

Defendant and Cross Plaintiff Attorneys

LAW FOGLIGHT

KHAN T

KHAN T.

Defendant and Cross Defendant Attorneys

KOHLER RYAN JOSEPH

KOHLER RYAN J.

MCDONALD MICHAEL B.

KHANZADA MUHAMED TOUSEEF ESQ.

 

Court Documents

Request for Entry of Default / Judgment

9/17/2020: Request for Entry of Default / Judgment

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR RECONSIDERATION)

9/25/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR RECONSIDERATION)

Reply - REPLY TO CROSS-DEFENDANT'S OPPOSITION TO CROSS-COMPLAINANT'S MOTION TO RECONSIDER

9/18/2020: Reply - REPLY TO CROSS-DEFENDANT'S OPPOSITION TO CROSS-COMPLAINANT'S MOTION TO RECONSIDER

Ex Parte Application - EX PARTE APPLICATION TO EXTEND TIME TO FILE MOTION FOR RECONSIDERATION

8/20/2020: Ex Parte Application - EX PARTE APPLICATION TO EXTEND TIME TO FILE MOTION FOR RECONSIDERATION

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

8/14/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Declaration - DECLARATION OF T. KHAN ESQ. OPPOSITION TO CROSS- DEFENDANTS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

7/31/2020: Declaration - DECLARATION OF T. KHAN ESQ. OPPOSITION TO CROSS- DEFENDANTS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Minute Order - MINUTE ORDER (COURT ORDER)

8/3/2020: Minute Order - MINUTE ORDER (COURT ORDER)

Request for Judicial Notice

5/29/2020: Request for Judicial Notice

Declaration - DECLARATION OF PARIS COHEN ISO MSJ

5/29/2020: Declaration - DECLARATION OF PARIS COHEN ISO MSJ

Stipulation - No Order - STIPULATION - NO ORDER TO ELECTRONIC SERVICE

1/29/2020: Stipulation - No Order - STIPULATION - NO ORDER TO ELECTRONIC SERVICE

Motion to Strike (not anti-SLAPP) - without Demurrer

10/4/2019: Motion to Strike (not anti-SLAPP) - without Demurrer

Notice of Case Reassignment and Order for Plaintiff to Give Notice

1/22/2019: Notice of Case Reassignment and Order for Plaintiff to Give Notice

CASE MANAGEMENT ORDER

8/15/2018: CASE MANAGEMENT ORDER

Other - - Other - Minute Order

10/4/2018: Other - - Other - Minute Order

NOTICE OF MOTION AND MOTION FOR ORDER GRANTING RELIEF FROM DEFAULT; MEMORANDUM OF POINTS AND AUTHORITIES

9/14/2018: NOTICE OF MOTION AND MOTION FOR ORDER GRANTING RELIEF FROM DEFAULT; MEMORANDUM OF POINTS AND AUTHORITIES

NOTICE OF CASE MANAGEMENT CONFERENCE

7/11/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

ORDER TO SHOW CAUSE HEARING

7/11/2018: ORDER TO SHOW CAUSE HEARING

COMPLAINT FOR DAMAGES FOR: (1) BREACH OF WRITTEN CONTRACT ;ETC

4/12/2018: COMPLAINT FOR DAMAGES FOR: (1) BREACH OF WRITTEN CONTRACT ;ETC

79 More Documents Available

 

Docket Entries

  • 08/24/2021
  • Hearing08/24/2021 at 10:00 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 08/17/2021
  • Hearing08/17/2021 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 09/28/2020
  • DocketNotice of Rejection Default/Clerk's Judgment; Filed by Clerk

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  • 09/25/2020
  • Docketat 08:30 AM in Department 37; Hearing on Motion for Reconsideration - Held

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  • 09/25/2020
  • DocketNotice of Ruling; Filed by JP Cohen, LLC (Cross-Defendant)

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  • 09/25/2020
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Ryan A. Chaichi (Defendant)

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  • 09/25/2020
  • DocketMinute Order ( (Hearing on Motion for Reconsideration)); Filed by Clerk

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  • 09/18/2020
  • Docketat 08:30 AM in Department 37; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Party

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  • 09/18/2020
  • DocketReply (to Cross-Defendant's Opposition to Cross-Complainant's Motion to Reconsider); Filed by Ryan A. Chaichi (Cross-Complainant)

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  • 09/17/2020
  • DocketRequest for Entry of Default / Judgment; Filed by Ryan A. Chaichi (Cross-Complainant)

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112 More Docket Entries
  • 07/27/2018
  • DocketNotice of Case Management Conference; Filed by JP Cohen, LLC (Plaintiff)

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  • 07/16/2018
  • DocketProof-Service/Summons; Filed by JP Cohen, LLC (Plaintiff)

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  • 07/16/2018
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 07/11/2018
  • DocketORDER TO SHOW CAUSE HEARING

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  • 07/11/2018
  • DocketOSC-RE Other (Miscellaneous); Filed by Clerk

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  • 07/11/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 07/11/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/12/2018
  • DocketSUMMONS

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  • 04/12/2018
  • DocketComplaint; Filed by JP Cohen, LLC (Plaintiff)

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  • 04/12/2018
  • DocketCOMPLAINT FOR DAMAGES FOR: (1) BREACH OF WRITTEN CONTRACT ;ETC

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Tentative Rulings

Case Number: BC701813    Hearing Date: September 25, 2020    Dept: 37

HEARING DATE: September 25, 2020

CASE NUMBER: BC701813

CASE NAME: JP Cohen LLC v. Ryan A. Chaichi

TRIAL DATE: August 24, 2021

MOTION: Defendant and Cross-Complainant Ryan A. Chaichi’s Motion for Reconsideration of August 14, 2020 Order

MOVING PARTY: Defendant and Cross-Complainant Ryan A. Chaichi.

OPPOSING PARTIES: Plaintiff and Cross-Defendants, JP Cohen, LLC and Cross-Defendants JP Cohen, LLC, Paris Cohen and Joshua Cohen

PROOF OF SERVICE: OK

OPPOSITION: September 14, 2020

REPLY: September 18, 2020

TENTATIVE: Ryan A. Chaichi’s motion for reconsideration is DENIED. Cross-Defendants are to give notice.

Background

This is a breach of contract matter arising out of Defendant and Cross-Complainant, Ryan A. Chaichi’s (“Chaichi”) prior employment dispute with Plaintiff and Cross-Defendants, JP Cohen, LLC (“JP Cohen.”) On April 12, 2018, JP Cohen, LLC filed a complaint alleging three causes of action: (1) breach of written contract, (2) breach of contract (confidentiality breach) and (3) conversation. JP Cohen alleges that Chaichi agreed to separate from employment at JP Cohen, in connection with which he signed a Separation Agreement and General Release on February 10, 2017. JP Cohen further alleges that it performed on the Separation Agreement by paying all amounts stated, but that Chaichi breached the separation agreement on March 28, 2018 by filing a claim with the Department of Industrial Relations.

On August 21, 2019, Chaichi filed his operative first amended cross-complaint (“FACC”). The first amended cross-complaint names two new defendants: Paris Cohen and Joshua Cohen. The first amended cross complaint also now alleges 20 causes of action, as follows: (1) declaratory relief, (2) wrongful discharge in violation of public policy, (3) constructive discharge in violation of public policy, (4) unfair business practices in violation of business and professions code section 17200, (5) breach of implied covenant of good faith and fair dealing in violation of California common law, (6) fraud and deceit in violation of Civil Code, (7) issuing improper or incomplete wage statements in violation of Labor Code, (8) failure to pay wages on a bi-monthly basis in violation of Labor Code, (9) failing to pay minimum wage in violation of Labor Code, (10) failing to pay overtime in violation of Labor Code, (11) disability harassment in violation of FEHA, (12) requiring signing of illegal agreement before releasing funds in violation of Labor Code, (13) retaliating for opposing practices in violation of FEHA, (14) retaliating for engaging in protected activities in violation of section 98.6, (15) failure to prevent DHR in violation of Government Code, (16) intentional infliction of emotional distress, (17) negligence, (18) negligent infliction of emotional distress, (19) waiting time penalties, (20) invasion of privacy.

On August 14, 2020, the court granted Plaintiff and Cross-Defendant JP Cohen and Cross-Defendants Paris Cohen and Joshua Cohen’s (“Cross-Defendants”) motion for summary judgment as to Plaintiff’s FACC. In granting Cross-Defendants’ motion, the court relied in part on the fact that Chaichi’s declarations in support of his opposition were not properly signed, electronically or otherwise. (see August 14, 2020 Minute Order at pp. 3-4, 8-9 [“The court has reviewed the declarations of Chaichi, Joann Chaichi and T. Khan submitted on July 31, 2020 in connection with Chaichi’s opposition. Each declaration contains only the declarant’s typed name and does not contain a signature.”])

Chaichi now moves for reconsideration of the court’s August 14, 2020 order granting Cross-Defendants’ motion for summary judgment. Cross-Defendants oppose the motion.

Discussion

  1. Timeliness

Code of Civil Procedure, section 1008 allows a party to move for reconsideration of an order within 10 days after service upon the party of written notice of entry of the order, based on new or different facts, circumstances, or law. (Code Civ. Proc., § 1008, subd. (a).)

On August 14, 2020, Cross-Defendants gave notice of the court’s August 14, 2020 ruling regarding their motion for summary judgment by email. Chaichi’s motion was filed on August 24, 2020, exactly ten days later. Thus, Chaichi’s motion is timely.

  1. Analysis

Code of Civil Procedure section 1008 requires the party moving for reconsideration to “state by affidavit 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.” However, a party moving for reconsideration under Code of Civil Procedure section 1008 must demonstrate that “new or different facts” in support of the motion could not have been discovered or produced with “reasonable diligence” at the time of the original hearing. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-13 (“the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the [original hearing]”).

Chaichi argues that “recent changes” in law show that he was in compliance with Code of Civil Procedure section 1010.6 and California Rules of Court, Rule 2.257 regarding electronic signatures and that, as such, the court should reconsider its August 14, 2020 ruling. (Motion, 1-7.) Chaichi also relies on an unpublished case, Schurtz v. Schurtz (2020) 2020 WL 4812670 in support of his argument that his declarations in support of opposition to Cross-Defendants’ motion for summary judgment should have been considered. Chaichi’s motion otherwise includes many references to irrelevant facts and argument. Because Chaichi’s motion includes these references to irrelevant facts and arguments, it is difficult to determine what exactly Chaichi contends constitutes a new fact or law for purposes of this motion.

In opposition, Cross-Defendants argue that Chaichi’s reliance on Schurtz is improper, and that Chaichis’ arguments in reliance on Code of Civil Procedure section 1010.6 and California Rules of Court, rule 2.257 are misplaced. (Opposition, 2-5.) The court agrees.

To the extent Chaichi argues that Schurtz constitutes new law for purposes of the instant motion, Chaichi’s argument fails. Schurtz is not a published opinion and thus, does not constitute binding precedent for this court. Thus, Schurtz is not “new law” for purposes of a motion for reconsideration.

Alternatively, to the extent Chaichi argues that amendments to Code of Civil Procedure section 1010.6 and/or California Rules of Court, rule 2.257 constitute “new law” for purposes of this motion, Chaichi’s argument also fails. Chaichi’s motion does not demonstrate that any amendments to either Code of Civil Procedure section 1010.6 or California Rules of Court rule 2.257 took place after the hearing on Cross-Defendants’ motion for summary judgment. Similarly, Chaichi’s motion does not demonstrate how changes to these sections, if any, now demonstrate that Chaichi’s declarations in support of his opposition were properly signed.

For these reasons, the court does not reconsider its August 14, 2020 ruling. Thus, Chaichi’s motion for reconsideration is denied. Having denied Chaichi’s motion on this basis, the court does not reach the remainder of the parties’ arguments.

Conclusion

Ryan A. Chaichi’s motion for reconsideration is DENIED. Defendants are to give notice.

Case Number: BC701813    Hearing Date: August 14, 2020    Dept: 37

HEARING DATE: August 14, 2020

CASE NUMBER: BC701813

CASE NAME: JP Cohen LLC v. Ryan A. Chaichi

TRIAL DATE: August 24, 2021

MOTION: Motion for Summary Judgment of Cross-Complaint

MOVING PARTIES: Plaintiff and Cross-Defendants, JP Cohen, LLC and Cross-Defendants JP Cohen, LLC, Paris Cohen and Joshua Cohen

OPPOSING PARTY: Defendant and Cross-Complainant Ryan A. Chaichi.

PROOF OF SERVICE: OK

OPPOSITION: July 31, 2020

REPLY: August 7, 2020

TENTATIVE: The Cross-Defendants’ Motion for Summary Judgment to Chaichi’s First Amended Cross Complaint is GRANTED. The Cross-Defendants are to give notice. and prepare a proposed judgment.

Background

This is a breach of contract matter arising out of Defendant and Cross-Complainant, Ryan A. Chaichi (“Chaichi”)’s prior employment dispute with Plaintiff and Cross-Defendants, JP Cohen, LLC (“JP Cohen.”) On April 12, 2018, JP Cohen, LLC filed a complaint alleging three causes of action: (1) breach of written contract, (2) breach of contract (confidentiality breach) and (3) conversion. JP Cohen alleges that Chaichi agreed to separate from employment at JP Cohen, in connection with which he signed a Separation Agreement and General Release on February 10, 2017. JP Cohen further alleges that it performed on the Separation Agreement by paying all amounts stated, but that Chaichi breached the separation agreement on March 28, 2018 by filing a claim with the Department of Industrial Relations.

On August 10, 2018, the court entered default against Chaichi as requested by JP Cohen. On August 13, 2018, Chaichi filed his answer to the Complaint and simultaneously filed a cross-complaint. Chaichi’s cross-complaint alleges four causes of action for: (1) fraud, (2) wrongful discharge in violation of public policy, (3) constructive discharge in violation of public policy and (4) intentional infliction of emotional distress.

On October 4, 2018, the court granted Chaichi’s motion for relief from default. On December 21, 2018, Chaichi re-filed his cross-complaint, which was rejected by the court on December 31, 2018 for failure to include the correct parties in the summons.

On January 17, 2019, Chaichi refiled his cross-complaint. Chaichi also filed his answer to the complaint on the same day. On August 21, 2019, Chaichi filed a first amended cross-complaint (“FACC”). The first amended cross-complaint names two new defendants: Paris Cohen and Joshua Cohen. The first amended cross complaint also now alleges 20 causes of action, as follows: (1) declaratory relief, (2) wrongful discharge in violation of public policy, (3) constructive discharge in violation of public policy, (4) unfair business practices in violation of business and professions code section 17200, (5) breach of implied covenant of good faith and fair dealing in violation of California common law, (6) fraud and deceit in violation of Civil Code, (7) issuing improper or incomplete wage statements in violation of Labor Code, (8) failure to pay wages on a bi-monthly basis in violation of Labor Code, (9) failing to pay minimum wage in violation of Labor Code, (10) failing to pay overtime in violation of Labor Code, (11) disability harassment in violation of FEHA, (12) requiring signing of illegal agreement before releasing funds in violation of Labor Code, (13) retaliating for opposing practices in violation of FEHA, (14) retaliating for engaging in protected activities in violation of section 98.6, (15) failure to prevent DHR in violation of Government Code, (16) intentional infliction of emotional distress, (17) negligence, (18) negligent infliction of emotional distress, (19) waiting time penalties, (20) invasion of privacy.

On November 13, 2019, the court denied JP Cohen’s motion to strike Chaichi’s first amended cross-complaint. The FACC was deemed the operative cross-complaint.

Plaintiff and Cross-Defendant JP Cohen and Cross-Defendants Paris Cohen and Joshua Cohen (“Cross-Defendants”) now move for summary judgment as to the FACC, on the following grounds:

  1. Chaichi’s claims against Cross-Defendants are barred by the Settlement Agreement between the parties;

  2. Chaichi’s seventh, eighth, ninth, tenth, twelfth and fourteenth Private Attorney’s General (“PAGA”) causes of action are barred by the one-year statute of limitations because Chaichi failed to bring these claims within one year from the end of his employment.

Chaichi opposes the motion.

Evidentiary Objections

As a preliminary note, the Cross-Defendants object to all declarations Chaichi submits in support of his opposition. Specifically, the Cross-Defendants argue that Chaichi, Joann Chaichi and attorney T. Khan’s declarations are all inadmissible to support his opposition because they were not executed and instead only include typed names for each declarant. Further, the Cross-Defendants argue that Chaichi’s untimely August 6, 2020 “Notice of Errata” purporting to add electronic signatures to each declaration should not be considered because the Notice provides no explanation for why each declaration was not properly executed when the opposition was due. The court agrees with the Cross-Defendants.

Code of Civil Procedure, section 2015.5 provides as follows:

“Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California.”

Further, a declaration which does not conform to the requirements of Code of Civil Procedure, section 2015.5 cannot be used in support of or in opposition to a motion for summary judgment. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601.)

The court has reviewed the declarations of Chaichi, Joann Chaichi and T. Khan submitted on July 31, 2020 in connection with Chaichi’s opposition. Each declaration contains only the declarant’s typed name and does not contain a signature. Further, the court does not consider Chaichi’s Notice of Errata an appropriate remedy for Chaichi’s initial failure to submit signed declarations. Chaichi’s deadline to submit his opposition and all supporting evidence was July 31, 2020 ((Code Civ. Proc., § 437c, subd. (b)), and Chaichi has provided no reason for his belated submission of signed declarations as well as a “corrected” opposition or asked for leave to file late papers.

For these reasons, the court sustains the Cross-Defendants’ objections to Chaichi, Joann Chaichi and T. Khan’s declarations in their entirety. Each declaration is not “executed” as required by Code of Civil Procedure, section 2015.5 and will not be considered in support of Chaichi’s opposition to the instant motion.

Request for Judicial Notice

The Cross-Defendants request that the court take judicial notice of the following in support of the instant motion:

  1. Chaichi’s First Amended Cross Complaint in the instant action (Compendium of Exhibits in Support of Motion, Exhibit A.)

  2. Cross-Defendants’ Answer to the FACC (Compendium of Exhibits in Support of Motion, Exhibit B.)

Further, Chaichi also requests that the court take judicial notice of the following in support of his opposition:

  1. The Cross-Defendants’ original Complaint in this action (Exhibit 29 to Compendium of Exhibits in Support of Opposition).

Both parties’ requests are granted. The existence and legal significance of these documents are proper matters for judicial notice. (Evidence Code § 452 (d), (h).)

Factual Summary

JP Cohen hired Chaichi as an apartment manager at the apartment complex located on 8608 Foothill Boulevard, Sunland, California 91040 for $600 per month, a rent-free apartment, and utilities. (Separate Statement in Support of Motion (“DSS”), ¶ 1; Declaration of Paris Cohen, ¶ 4, Declaration of Joshua Cohen ¶¶ 4, 7.) Chaichi began his employment on May 27, 2014. (DSS ¶ 2; Paris Cohen Decl. ¶ 4.)

On December 9, 2016, Paris Cohen wrote to Chaichi stating “your employment is now on probationary status” due to “poor decision making and dishonesty to cover up your mistake.” (DSS ¶ 4; Paris Cohen Decl. ¶ 9.) On December 12, 2016, Paris Cohen provided Chaichi a letter placing him on 60-day probation and listing issues JP Cohen felt demonstrated his “lack of professionalism and poor decision making.” (DSS ¶ 5; Paris Cohen Decl. ¶ 9, Compendium of Exhibits in Support of Motion, Exhibit B.)

After Chaichi was placed on probation, Chaichi began arguing to the Cross-Defendants that he was underpaid and should have been paid as a full-time employee working 40 hours per week. (DSS ¶ 6; Joshua Cohen Decl. ¶ 13.) Paris Cohen disputed Chaichi’s claims by email on January 27, 2017, including Chaichi’s statements that he was going to report Paris and Joshua Cohen to the State Bar of California. (DSS ¶ 7; Paris Cohen Decl. ¶ 10, Exhibit C.)

On January 30, 2017, Chaichi sent a letter to JP Cohen outlining his claims for Labor Code violations and offering to settle these claims for $17,000. (DSS ¶ 8; Paris Cohen Decl. ¶ 11, Exhibit D.) On February 6, 2017, Paris Cohen disputed the claims in Chaichi’s January 30, 2017 letter and offered him another chance to correct his behavior before his employment would be terminated. (DSS ¶ 9, Paris Cohen Decl. ¶ 12, Exhibit E.)

On February 10, 2017, Chaichi signed a Separation Agreement and General Release (“Separation Agreement”). (DSS ¶ 10; Joshua Cohen Decl. ¶¶ 15-16; Paris Cohen Decl. ¶ 14; Exhibit F.) The Separation Agreement discharged the Cross-Defendants from all claims and provides as follows:

“I hereby fully release, acquit, hold harmless and discharge forever, 8608 Foothill Blvd, LLC, Parkview East Apartments, JP Cohen, LLC dba JP Cohen Property Management, and all of their subsidiaries, affiliates, and related business companies and Affiliated Individuals (defined below), and each of their respective present and former owners, agents, employees, officers, directors, members representatives and shareholders, (hereinafter known as the "Company"), and each and all of them, from all liabilities, claims, causes of action, charges, complaints, suits, grievances, obligations, debts, costs, losses, liens, damages, injuries, attorneys' fees, and other legal responsibilities of any form whatsoever, including but not limited to claims in law, equity, contract, tort, or any claims under the California Labor Code, the California Government Code, the California Business & Professions Code, the Fair Labor Standards Act, the National Labor Relations Act, the Labor Management Relations Act, the Employee Retirement Income Security Act, Title VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities Act, or any other local ordinance or federal or state statute or constitution, as well as any claims arising from or in any way related to my employment or the separation from employment with the Company, including any and all claims of race, age, color, sex, national origin, ancestry, religion, disability, or other discrimination or harassment, retaliation, or any other related theory of law, breach of contract, promissory estoppel, wrongful termination, personal injury, defamation, loss of consortium, distress, humiliation, loss of standing and prestige, public policy, or any other tort, whether known or unknown, unforeseen, unanticipated, unsuspected or latent, which I or my successors in interest now own or hold, or have at any time owned or held, or may at any time own or hold by reason of any matter or thing arising from any cause whatsoever prior to the date I execute this Agreement.”

(Compendium of Exhibits in Support of Motion, Exhibit F.) JP Cohen performed their obligations under the Separation Agreement and paid Chaichi as agreed. (DSS ¶ 11; Joshua Cohen Decl. ¶¶ 16-18; Paris Cohen Decl. ¶¶ 15-16.) Both Joshua Cohen and Paris Cohen attest that Chaichi deposited the funds he was paid and never attempted to rescind the Separation Agreement or otherwise return the funds. (DSS ¶ 13; Paris Cohen Decl. ¶ 16; Joshua Cohen Decl. ¶ 18.)

Chaichi resigned his position as apartment manager on February 10, 2017. (DSS ¶ 14; Paris Cohen Decl. ¶ 14; Joshua Cohen Decl. ¶ 15.) Chaichi filed his PAGA Notice with the California Labor and Workforce Development Agency (“LWDA”) no earlier than March 5, 2019. (DSS ¶ 15; FACC ¶ 99.)

Chaichi did not timely file a responsive separate statement with his opposition on July 31, 2020. The failure to file a responsive separate statement is sufficient grounds for granting the motion. (Code Civ. Proc., § 437c, subd. (b)(3).) He did submit a late-filed separate statement on August 6, 2020 with no explanation for the late filing or request to file late-file papers. Even though it disputes the Cross-Defendants’ submitted facts on two main grounds: (1) Chaichi contends that neither his resignation nor his signing of the Separation Agreement was voluntary, and (2) Chaichi contends that the Cross-Defendants required him to perform tasks “not necessarily related to the job of apartment managing.” (see, e.g., Separate Statement in Support of Opposition (“PSS”) ¶ 1.) However, Chaichi submits no evidence in support of these contentions, other than his statements to this effect and vague references to emails between the parties

Discussion

  1. Legal Standard

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  Pursuant to Code of Civil Procedure, section 437c, subdivision (a): 

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.  The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct….  The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.  The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading. 

(Code Civ. Proc., § 437c, subd. (a).)  A motion for summary judgment may be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (Code Civ. Proc., § 437c, subd. (c).)   

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.  The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.  Each of the material facts stated shall be followed by a reference to the supporting evidence.  The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.”  (Code Civ. Proc., § 437c, subd. (b)(1); see also Cal. Rules of Court, rule 3.1350(c)(2) & (d).)  

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).)  Pursuant to Code Civ. Proc., § 437c, subdivision (p)(2): 

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.  Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.  The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto. 

(Code Civ. Proc., § 437c, subd. (p)(2).)  The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.”  (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].)  A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475). 

  1. Analysis

     

  1. Separation Agreement

“In general, a written release extinguishes any obligation covered by the release's terms, provided it has not been obtained by fraud, deception, misrepresentation, duress, or undue influence.” (Skrbina v. Fleming Companies Inc. (1996) 45 Cal.App.4th 1353, 1366.) Further, a valid release may also encompass currently unknown claims that arise in the future from events in the scope of the release. (Jefferson v. California Department of Youth Authority (2002) 28 Cal.4th 299, 305 [release which states that Plaintiff waived “all claims and all causes of action” necessarily included FEHA claims because Plaintiff was already pursuing FEHA claims].)

As discussed above, the Cross-Defendants have submitted evidence that Chaichi signed a Separation Agreement which includes a release of all claims against the Cross-Defendants. Chaichi does not dispute that he signed the Separation Agreement but instead argues that he did not sign it willingly and did not resign willingly. However, Chaichi does not submit admissible evidence in support of his arguments.

Given the foregoing and viewing the submitted evidence in the light most favorable to Chaichi, the court finds that Chaichi’s claims are covered by the Separation Agreement. The Separation Agreement, on its face, states that Chaichi agrees to release the Cross-Defendants from “all liabilities, claims, causes of action, charges, complaints, suits, grievances, obligations, debts, costs, losses, liens, damages, injuries, attorneys' fees, and other legal responsibilities of any form whatsoever.” As such, no triable issue of material fact exists regarding the Cross-Defendants’ liability to Chaichi on any causes of action in Chaichi’s FACC.

For these reasons, the Cross-Defendants’ motion is GRANTED. Having granted the Cross-Defendants’ motion on this basis, the court does not reach the parties’ remaining arguments.

Conclusion

The Cross-Defendants’ Motion for Summary Judgment to Chaichi’s First Amended Cross Complaint is GRANTED. The Cross-Defendants are to give notice.

 

Case Number: BC701813    Hearing Date: November 13, 2019    Dept: 37

HEARING DATE: November 13, 2019

CASE NUMBER: BC701813

CASE NAME: JP Cohen LLC v. Ryan A. Chaichi

TRIAL DATE: March 24, 2020

MOTION: Motion to Strike Defendant and Cross-Complainant Ryan A. Chaichi’s First Amended Cross-Complaint

MOVING PARTIES: Plaintiff JP Cohen, LLC and Cross-Defendants JP Cohen, LLC, Paris Cohen and Joshua Cohen

OPPOSING PARTY: Defendant, Ryan A. Chaichi.

PROOF OF SERVICE: OK

OPPOSITION: Timely filed October 28, 2019

REPLY: Timely filed November 5, 2019

TENTATIVE: Given the foregoing, the court DENIES JP Cohen’s motion. Chaichi’s amended cross-complaint is hereby deemed the original cross-complaint. Cross-defendants are to file their answer to the cross-complaint within 30 days of the date of this ruling.

Background

This is a breach of contract matter arising out of Defendant and Cross-Complainant, Ryan A. Chaichi (“Chaichi”)’s prior employment dispute with Plaintiff and Cross-Defendants, JP Cohen, LLC (“JP Cohen.”) On April 12, 2018, JP Cohen, LLC filed a complaint alleging three causes of action: (1) breach of written contract, (2) breach of contract (confidentiality breach) and (3) conversion. JP Cohen alleges that Chaichi agreed to separate from employment at JP Cohen, in connection with which he signed a Separation Agreement and General Release on February 10, 2017. JP Cohen further alleges that it performed on the Separation Agreement by paying all amounts stated, but that Chaichi breached the separation agreement on March 28, 2018 by filing a claim with the Department of Industrial Relations.

On July 10, 2018, JP Cohen served Chaichi with its Summons and Complaint.

On August 10, 2018, the court entered default against Chaichi as requested by JP Cohen. On August 13, 2018, Chaichi filed his answer to the Complaint and simultaneously filed a cross-complaint. Chaichi’s cross-complaint alleges four causes of action for: (1) fraud, (2) wrongful discharge in violation of public policy, (3) constructive discharge in violation of public policy and (4) intentional infliction of emotional distress.

On August 15, 2018, a case management conference was held in this matter. The court’s Case Management Order noted that, with the agreement of the parties, “all unserved Defendants/Cross-Defendant and Does/Roes are dismissed/severed as of 12/13/18.”

On October 4, 2018, the court granted Chaichi’s motion for relief from default. On December 21, 2018, Chaichi re-filed his cross-complaint, which was rejected by the court on December 31, 2018 for failure to include the correct parties in the summons.

On January 17, 2019, Chaichi refiled summons on his cross-complaint. Chaichi also filed his answer to the complaint on the same day. On August 21, 2019, Chaichi filed a first amended cross-complaint. The first amended cross-complaint names two new defendants: Paris Cohen and Joshua Cohen. The first amended cross complaint also now alleges 20 causes of action, as follows: (1) declaratory relief, (2) wrongful discharge in violation of public policy, (3) constructive discharge in violation of public policy, (4) unfair business practices in violation of business and professions code section 17200, (5) breach of implied convenant of good faith and fair dealing in violation of California common law, (6) fraud and deceit in violation of Civil Code, (7) issuing improper or incomplete wage statements in violation of Labor Code, (8) failure to pay wages on a bi-monthly basis in violation of Labor Code, (9) failing to pay minimum wage in violation of Labor Code, (10) failing to pay overtime in violation of Labor Code, (11) disability harassment in violation of FEHA, (12) requiring signing of illegal agreement before releasing funds in violation of Labor Code, (13) retaliating for opposing practices in violation of FEHA, (14) retaliating for engaging in protected activities in violation of section 98.6, (15) failure to prevent DHR in violation of Government Code, (16) intentional infliction of emotional distress, (17) negligence, (18) negligent infliction of emotional distress, (19) waiting time penalties, (20) invasion of privacy.

JP Cohen filed the instant motion to strike on October 4, 2019. Chaichi opposes the motion to strike on the grounds that JP Cohen did not properly file an answer after Chaichi properly filed his cross-complaint. JP Cohen filed its reply on November 5, 2019.

Motion to Strike Cross-Complainant’s First Amended Cross Complaint

  1. Legal Authority

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike 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. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

 

  1. Analysis

“[A]n answer filed after default has been properly entered is a nullity.”  (Remainders, Inc. v. Superior Court (1961) 192 Cal.App.2d 411, 412 (emphasis removed from original).) “A defendant against whom a default is entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action.  It follows then that the filing of the demurrer and the motion to strike out after the default had been entered did not suspend the ministerial duty of the clerk to enter the judgment. The clerk was bound to receive and file these pleadings, although they could have no legal effect.” (Christerson v. French (1919) 180 Cal. 523, 525.) “A default cuts off the defendant from making any further opposition or objection to the relief which plaintiff's complaint shows he is entitled to demand…He cannot thereafter, nor until such default is set aside in a proper proceeding, file pleadings, or move for a new trial, or demand notice of subsequent proceedings.” (Title Ins. & Trust Co. v. King Land & Improvement Co. (1912) 162 Cal. 44, 46.) “Upon the failure of the defendant to answer the complaint within the time allowed by law, and upon the entry of default, in the absence of fraud, the right of the defendant to participate in the litigation is terminated…unless upon proceedings duly had, the default is first set aside.” (Forbes v. Cameron Petroleums, Inc. (1978) 83 Cal.App.3d 257, 262-63.)  Papers filed after default is entered are a legal nullity and the defaulting party has no right to file any motions besides seeking relief from the default.  (Id. at 262 [“the filing of the demurrer and the motion to strike out after the default had been entered did not suspend the ministerial duty of the clerk to enter the judgment. The clerk was bound to receive and file these pleadings, although they could have no legal effect”] (emphasis in original).

Here, default was entered against Chaichi on August 10, 2018. Default was not was not set aside as to Chaichi until October 4, 2018, when Chaichi’s motion to set aside default was granted. Accordingly, the court finds that Chaichi’s original cross-complaint and JP Cohen’s answer, both of which were filed after default was entered and before it was set aside, are null.

JP Cohen argues that the court should consider the default waived based on Community Development Commission v. Shuffler (1988) 198 Cal.App.3d 450 and Oil Tool Exchange v. Schuh (1944) 67 Cal.App.2d 288. The court is not persuaded based on these cases.

First, Community Development is a case regarding abandonment of condemnation. As such, its holding is factual inapposite to the case at hand. Here, JP Cohen is bringing an action against Chaichi for breach of contract, and Chaichi is bringing a cross-complaint for employment related disputes.

Further, the facts of Oil Exchange are also inapposite to this matter. Oil Exchange concerned a disputed foreclosure of a mortgage on property, wherein the mortgage was given by defendants, a trust. (Oil Exchange, supra, 67 Cal.App.2d at p. 290.) After default was entered against the trust, the parties nevertheless proceeded to trial, filing responsive pleadings. (Id. at 297.) Here, while the court set a trial date for the matter in August 2018, the parties have not proceeded to trial. Nor is this case regarding foreclosure on a mortgage. Accordingly, the court disagrees with JP Cohen that this case is applicable to the instant motion.

JP Cohen argues in its reply that its motion should be granted because Chaichi’s opposition does not cite legal authority for the proposition that its answer is null. (Reply, 2.) JP Cohen reasserts its arguments that its answer was timely filed within thirty days of Chaichi’s cross-complaint and, as such, was valid. (Reply, 2-3.) JP Cohen further argues that Chaichi should not be allowed to amend at this stage of the matter because the First Amended Cross-Complaint adds numerous new allegations and new parties. (Reply, 3-4.)

The court is not persuaded by JP Cohen’s arguments on reply. JP Cohen’s arguments ignore the fact that it filed an answer to a cross-complaint filed after entry of default, which is a nullity. (Remainders, supra, 192 Cal.App.2d 411 at 412.) Although the court accepted JP Cohen’s answer to the cross-complaint, it does not follow that the answer therefore had legal effect. (Christensen, supra, 180 Cal. 523 at 525.) While JP Cohen argues that Chaichi should not be allowed to amend the cross-complaint and expand the allegations at this stage of litigation, a motion to strike is not the proper vehicle to raise these concerns.

Accordingly, the court hereby DENIES JP Cohen’s motion.

  1. Conclusion

Given the foregoing, the court DENIES JP Cohen’s motion. Chaichi’s amended cross-complaint is hereby deemed the original cross-complaint. Cross-defendants are to file their answer to the cross-complaint within 30 days of the date of this ruling.