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This case was last updated from Los Angeles County Superior Courts on 12/28/2017 at 08:40:44 (UTC).

LAURA SHAPIRO ET AL VS MORAD BEN NEMAN ET AL

Case Summary

On 03/07/2017 LAURA SHAPIRO filed a Contract - Other Contract lawsuit against MORAD BEN NEMAN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ROBERT B. BROADBELT and DANIEL S. MURPHY. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3531

  • Filing Date:

    03/07/2017

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ROBERT B. BROADBELT

DANIEL S. MURPHY

 

Party Details

Plaintiffs and Petitioners

STIRES MICHAEL

SHAPIRO LAURA

MANDELKORN ALEXANDRA

WELCH ELISE

BUTLER STEPHANIE

CEPEDA JULIANNA

RABINOVICH YAKOV

LARSON ANNE

SILLIMAN SAMANTHA

TRINH NANCY

BROWN BLAKE

LOPERFIDO CORINNE

SCHRECK JENNA

KEMP OLIVIA

Defendants and Respondents

KHALILI MEHRAN PERRY

SKY HIGH INVESTMENTS COMPANY LLC

CALDERON NELSON

NEMAN SIMON

DOES 1 TO 100

NEMAN MORAD BEN

76 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

GREENBERG HAROLD ESQ.

LAW FIRM OF HAROLD GREENBERG

Defendant Attorney

FISHER DAVID R. ESQ.

 

Court Documents

PLAINTIFFS' EX PARTE APPLICATION FOR PROTECTIVE ORDER STAYING DISCOVERY PENDING ORDER OF THE COURT; ETC

11/29/2017: PLAINTIFFS' EX PARTE APPLICATION FOR PROTECTIVE ORDER STAYING DISCOVERY PENDING ORDER OF THE COURT; ETC

Minute Order

12/4/2017: Minute Order

PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR RELIEF FROM ORDER SUSTAINING DEMURRER WITHOUT LEAVE AND REQUEST TO FILE SECOND AMENDED COMPLAINT

12/7/2017: PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR RELIEF FROM ORDER SUSTAINING DEMURRER WITHOUT LEAVE AND REQUEST TO FILE SECOND AMENDED COMPLAINT

OBJECTION TO DEFENDANTS' PROPOSED ORDER

12/13/2017: OBJECTION TO DEFENDANTS' PROPOSED ORDER

DEFENDANTS MORAD BEN NEMAN, SKY HIGH INVESTMENTS COMPANY, LLC, SIMON NEMAN, NEMAN REAL ESTATE INVESTMENTS AND MBN REAL ESTATE INVESTMENTS, LLC'S NOTICE OF DEMURRERS AND DEMURRERS TO PLAINTIFFS' FIRST

10/19/2017: DEFENDANTS MORAD BEN NEMAN, SKY HIGH INVESTMENTS COMPANY, LLC, SIMON NEMAN, NEMAN REAL ESTATE INVESTMENTS AND MBN REAL ESTATE INVESTMENTS, LLC'S NOTICE OF DEMURRERS AND DEMURRERS TO PLAINTIFFS' FIRST

NOTICE OF ENTRY OR ORDER

10/13/2017: NOTICE OF ENTRY OR ORDER

Minute Order

9/29/2017: Minute Order

Minute Order

4/21/2017: Minute Order

ORDER OF EX PARTE APPLICATION FOR PROTECTIVE ORDER EXTENDING TIME TO RESPOND TO DISCOVERY

4/21/2017: ORDER OF EX PARTE APPLICATION FOR PROTECTIVE ORDER EXTENDING TIME TO RESPOND TO DISCOVERY

NOTICE OF CASE MANAGEMENT CONFERENCE

5/15/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

DECLARATION OF HEDY GHAVIDEL IN SUPPORT OF PLAINTIFFS' CLARIFICATION TO THE NOTICE OF UNAVAILABILITY OF DEFENDANTS? COUNSEL;ETC.

5/22/2017: DECLARATION OF HEDY GHAVIDEL IN SUPPORT OF PLAINTIFFS' CLARIFICATION TO THE NOTICE OF UNAVAILABILITY OF DEFENDANTS? COUNSEL;ETC.

SUBSTITUTION OF ATTORNEY

5/26/2017: SUBSTITUTION OF ATTORNEY

Minute Order

6/30/2017: Minute Order

DECLARATION IN SUPPORT OF ATTORNEY'S MOTION TO BE RELIEVED AS COUNSEL

7/19/2017: DECLARATION IN SUPPORT OF ATTORNEY'S MOTION TO BE RELIEVED AS COUNSEL

NOTICE OF ERRATA AND CORRECTION

7/26/2017: NOTICE OF ERRATA AND CORRECTION

FIRST AMENDED COMPLAINT 1. BREACH OF WARRANTY OF HABITABILITY; ETC

8/15/2017: FIRST AMENDED COMPLAINT 1. BREACH OF WARRANTY OF HABITABILITY; ETC

DEFENDANT'S CONSOLIDATED MOTION: (1) TO COMPEL RESPONSES TO FORM INTERROGATORIES; ETC.

8/21/2017: DEFENDANT'S CONSOLIDATED MOTION: (1) TO COMPEL RESPONSES TO FORM INTERROGATORIES; ETC.

DECLARATION OF JEFFREY R. KLEIN PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE, SECTION 430.41(A)(2)

9/13/2017: DECLARATION OF JEFFREY R. KLEIN PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE, SECTION 430.41(A)(2)

68 More Documents Available

 

Docket Entries

  • 12/07/2017
  • Motion for an Order Filed by Attorney for Plaintiff/Petitioner

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  • 12/04/2017
  • Order (RE DEMURRER TO FIRST AMENDED COMPLAINT ) Filed by Court

    Read MoreRead Less
  • 12/04/2017
  • Ord-Appt Apprv Rptr as Rptr protem Filed by Attorney for Defendant/Respondent

    Read MoreRead Less
  • 12/01/2017
  • Reply/Response Filed by Attorney for Defendant/Respondent

    Read MoreRead Less
  • 11/29/2017
  • Order (GRANTING EX PARTE APPLICATION ) Filed by Attorney for Plaintiff/Petitioner

    Read MoreRead Less
  • 11/29/2017
  • Notice-Related Cases Filed by Attorney for Plaintiff/Petitioner

    Read MoreRead Less
  • 11/29/2017
  • Ord-Appt Apprv Rptr as Rptr protem Filed by Attorney for Defendant/Respondent

    Read MoreRead Less
  • 11/29/2017
  • Opposition Document (TO EX PARTE APPLICATION ) Filed by Attorney for Defendant/Respondent

    Read MoreRead Less
  • 11/29/2017
  • Ex-Parte Application (FOR PROTECTIVE ORDER STAYING DISCOVERY PENDING ORDER OF THE COURT, OR IN THE ALTERNATIVE, EXTENDING TIME TO RESPOND TO DISCOVERY ) Filed by Attorney for Plaintiff/Petitioner

    Read MoreRead Less
  • 10/19/2017
  • Demurrer (12/4/17 ) Filed by Attorney for Defendant/Respondent

    Read MoreRead Less
31 More Docket Entries
  • 04/21/2017
  • Declaration (OF HEDY GHAVIDEL ) Filed by Attorney for Plaintiff/Petitioner

    Read MoreRead Less
  • 04/21/2017
  • Declaration (OF HAROLD GREENBERG ) Filed by Attorney for Plaintiff/Petitioner

    Read MoreRead Less
  • 04/21/2017
  • Request for Judicial Notice Filed by Attorney for Defendant/Respondent

    Read MoreRead Less
  • 04/21/2017
  • Opposition Document (TO PLAINTIFF'S EX PARTE APPLICATION ) Filed by Attorney for Defendant/Respondent

    Read MoreRead Less
  • 04/17/2017
  • Notice of Ruling (OF THE TRIAL SETTING CONFERENCE OF APRIL 12, 2017 ) Filed by Attorney for Plaintiff/Petitioner

    Read MoreRead Less
  • 04/12/2017
  • Order (ORDER TRANSFERRING PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT ) Filed by Court

    Read MoreRead Less
  • 03/13/2017
  • Notice of Trial Setting Conference Filed by Court Attendant

    Read MoreRead Less
  • 03/07/2017
  • Notice-Related Cases (by Plaintiffs Laura Shapiro et al. The People of the State of California vs. Shy High Investments Company, LLC et al. (BC643427) ) Filed by Attorney for Plaintiff/Petitioner

    Read MoreRead Less
  • 03/07/2017
  • Summons Filed (on Plaintiffs Laura Shapiro et al.'s Complaint ) Filed by Attorney for Plaintiff/Petitioner

    Read MoreRead Less
  • 03/07/2017
  • Complaint (for Plaintiffs Laura Shapiro et al. ) Filed by Attorney for Plaintiff/Petitioner

    Read MoreRead Less

Tentative Rulings

Case Number: BC653531    Hearing Date: February 01, 2021    Dept: 32

laura shapiro, et al.,

Plaintiffs,

v.

MORAD BEN NEMAN, et. al.

Defendants.

Case No.: BC653531

Hearing Date: February 1, 2021

[TENTATIVE] order RE:

motion QUASH OR MODIFY THIRD-PARTY SUBPOENAs

Background

A. Complaint

This is a landlord-tenant action brought by several tenants (Plaintiffs) against Defendants Morad Ben Neman (Neman), Sky High Investments Company (Sky High), and Neman Real Estate Investments, LLC (NREI) (collectively, Defendants) concerning real property located at 931 and 937 East Pico Street, Los Angeles, CA 90021 (Building). Following several rounds of demurrer, Plaintiffs filed the operative pleading, the Third Amended Complaint (TAC), on July 5, 2018. The TAC asserts causes of action for (1) breach of warranty of habitability, (2) negligence, (5) forcible detainer, (6) failure to return security deposits, (9) covenant of peaceful and quiet enjoyment, (10) constructive eviction, (11) retaliatory eviction, (12) abuse of process and frivolous filings, (13) breach of warranty of suitability, (14) illegal collection of rent, (15) violation of the Los Angeles Municipal Code – Relocation Benefits, (16) breach of written contract, (17) breach of oral contract, (18) unfair business practices, (21) harassment and intimidation, (24) fraud, and (27) declaratory relief. Defendants’ demurrer to the TAC’s tenth, twelfth, seventeenth, and twenty-fourth causes of action was sustained without leave to amend. The TAC alleges in pertinent part as follows.

In May 2002, Neman purchased the Building and illegally subdivided the Building into “Residential” and “Live-Work” units without obtaining a certificate of occupancy or certificate of rent registration from the City of Los Angeles. Throughout the years, Plaintiffs experienced numerous unhabitable living conditions while living in the Building. These uninhabitable conditions include (1) sprinkler pipes without water, (2) no heat, and (3) an infestations of bedbugs, cockroaches, and rodents. Plaintiffs made complaints about these conditions to Defendants to no avail.

In February 2016, the Los Angeles Fire Department (LAFD) conducted a Fire and Life Safety Inspection of the Building. During the inspection, the inspector realized that the Building had no fire warning system nor other fire safety devices like operable fire doors in its two freight elevators. The inspector also observed that the Building appeared to be in residential use without proper approval. The inspector issued a Notice of Violation relating to fire life safety, notified the Los Angeles Department of Building and Safety (LADBS) of the unapproved use of the Property, and referred the Building to LAFD’s Compliance Unit for legal action.

In August 2016, LAFD issued a Fire-Watch Order which, by its terms, would be in effect until LADBS issued the Building a Certificate of Occupancy.

Later that same month, LADBS inspected the Building and issued a Substandard Notice and Order to Comply determining that the Building was substandard “due to illegal occupancy.”

Because of the notices, Plaintiffs were forced to leave the Building. In some cases, Plaintiffs left by agreement with Defendants due to concerns with their safety. In other cases, Plaintiffs were subject to unlawful detainer proceedings because they refused to pay rent after learning about the notices.

B. Cross-Complaint

Sky High commenced a cross-action against Plaintiffs on October 30, 2018. Sky High’s Cross-Complaint asserts causes of action for (1) equitable indemnity for solicitation, (2) equitable indemnity for nuisance, (3) equitable indemnity for subleasing, (4) breach of contract, (5) nuisance, and (6) negligence. Sky High alleges that certain Plaintiffs failed to pay Sky High all monies due under their leases, subleased their units without Sky High’s consent, and/or failed to adequately maintain their units creating a nuisance.

Legal Standard

“If a subpoena requires … the production of books, documents, electronically stored information, or other things …, the court may, upon motion reasonably made by [a party], … make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (CCP § 1987.1(a), (b).) Motions to compel a non-party to produce documents must set forth facts showing good cause justifying the discovery sought. (See Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

In ruling on a motion made under CCP section 1987.1, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (CCP § 1987.2(a).)

Discussion

Defendant and Cross-Complainant Sky High Investments Company, LLC moves to quash or modify subpoenas for production of business records issued by Plaintiff Perry Santos to The Travelers Indemnity Company of Connecticut and Kulchin Ross Insurance Services, Inc., or alternatively, for a protective order.

Defendant presents the following evidence. On October 22, 2020, Plaintiff Perry Santos issued “deposition subpoenas for the production of business records (the “Subpoenas”) of (1) The Travelers Indemnity Company of Connecticut (“Travelers”) and (2) Kulchin Ross Insurance

Services, Inc. (“Kulchin”).” (Klein Decl. ¶ 2.) On November 17, 2020, Travelers served a response and objection to the subpoena. (Id. ¶ 4, Exh. 4.) The parties met and conferred without success on November 16, 2020 and November 17, 2020. (Id. ¶ 5.)

Each subpoena seeks the following documents: (1) “All records of any Commercial Insurance Application made by or on behalf of SKY HIGH INVESTMENTS COMPANY L.L.C. for 921-945 E. Pico Blvd., Los Angeles CA 90021;” (2) “All records of any and all communications between YOU and SKY HIGH INVESTMENTS COMPANY L.L.C. concerning the property located at 921-945 E. Pico Blvd., Los Angeles CA 90021;” (3) “All records pertaining to any insurance policy for SKY HIGH INVESTMENTS COMPANY L.L.C. concerning the property located at 921-945 E. Pico Blvd., Los Angeles CA 90021;” and (4) All records pertaining to any Risk Assessment Report for SKY HIGH INVESTMENTS COMPANY L.L.C. concerning the property located at 921-945 E. Pico Blvd., Los Angeles CA 90021.” (Klein Decl. ¶ 2, Exh. 1-2.)

Defendant’s motion is well-taken. Plaintiff’s sole basis for seeking the documents at issue from Defendant’s insurer Travelers and insurance broker Kulchin is based upon the contention that Plaintiff may uncover information used for impeachment. Plaintiff cites claims made in a separate lawsuit between Travelers and Defendant and argues “the underlying documents very likely contain material information which can be used to impeach given the numerous inconsistencies communicated to Plaintiffs versus what was communicated to the two subpoenaed entities.” (Opp. at 3.) However, it appears the alleged inconsistency is whether Defendant presented the property at issue as a commercial or residential property. Plaintiffs contend they were told the building was approved for residential use, whereas Defendant maintains the building was solely for commercial use. Defendant’s application for, and documents related to, its commercial insurance policy, are not reasonably calculated to lead to impeachment evidence as it is consistent with Defendant’s position both in this litigation and in its litigation with Travelers.

Additionally, courts have expressly held that applications for insurance are generally not discoverable. (Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 742–743 (“this subdivision, with exceptions not relevant to this question, does limit the discovery of insurance policies to their ‘contents.’ Thus, unless the application is incorporated into the policy or is otherwise made part of it, the application would not constitute part of the contents of the policy and hence would not be separately discoverable.”).)

“Evidence of a tort defendant's liability insurance is generally unrelated to a party's claims or defenses at trial; hence the common law rule has long been that such insurance coverage evidence is inadmissible at trial. [Citations] The rule is codified in Evidence Code section 1155, which provides that ‘[e]vidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible to prove negligence or other wrongdoing.’ Section 2017.210 nonetheless creates a statutory exception that allows limited discovery of a defendant's liability insurance coverage as a matter of right; that is to say, without the need for a threshold showing of relevancy and admissibility as is required under the general discovery statute, section 2017.010.” (Catholic Mutual Relief Society v. Superior Court (2007) 42 Cal.4th 358, 366–367.) Accordingly, Plaintiff has a right to discover the existence of and contents of Defendant’s insurance policy, which Defendant has offered to produce. The remaining documents sought by Plaintiff do not appear relevant to the subject matter of this habitability litigation or reasonably calculated to lead to the discovery of admissible evidence.

While the Court agrees the subpoenas should be quashed for the reasons stated above, the Court briefly addresses Defendants’ other arguments. Contrary to Defendant’s assertion, Plaintiff’s subpoena requests are “reasonably particulariz[ed] each category of item” as required by Code of Civil Procedure section 2020.410(a). Additionally, Defendant’s reliance upon Insurance Code sections 791 et seq. is unavailing as the statute contains an express exception for subpoenas. (Ins. Code § 791.13(h); Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 741 (“the provisions of the insurance act yield where disclosure is otherwise permitted or required by law or is in response to a facially valid administrative or judicial order, including a search warrant or subpoena.”) quoting Ins. Code § 791.13.)

Conclusion

Defendant’s motion to quash the October 22, 2020 deposition subpoenas for production of business records issued to Travelers and Kulchin is GRANTED in its entirety. Defendant shall produce the insurance policy in question consistent with its representation to the Court.

Case Number: BC653531    Hearing Date: January 11, 2021    Dept: 32

laura shapiro, et al.,

Plaintiffs,

v.

MORAD BEN NEMAN, et. al.

Defendants.

Case No.: BC653531

Hearing Date: January 11, 2021

[TENTATIVE] order RE:

motion TO COMPEL DEPOSITIONS OF PLAINTIFFS BRIAN EDWARD KENNY, DONG JU MC TAVISH PARK, MAYSON TILLOTSON, RONNIE CUEVAS, AND SAMANTHA SILLIMAN AND PRODUCTION OF DOCUMENTS AND REQUEST FOR $6,323.00 IN MONETARY SANCTIONS

Background

This is a landlord-tenant action brought by several tenants against Defendants Morad Ben Neman (Neman), Sky High Investments Company (Sky High), and Neman Real Estate Investments, LLC (NREI) (collectively, Defendants) concerning real property located at 931 and 937 East Pico Street, Los Angeles, CA 90021 (Building). Following several rounds of demurrer, Plaintiffs filed the operative pleading, the Third Amended Complaint (TAC), on July 5, 2018. The TAC asserts causes of action for (1) breach of warranty of habitability, (2) negligence, (5) forcible detainer, (6) failure to return security deposits, (9) covenant of peaceful and quiet enjoyment, (10) constructive eviction, (11) retaliatory eviction, (12) abuse of process and frivolous filings, (13) breach of warranty of suitability, (14) illegal collection of rent, (15) violation of the Los Angeles Municipal Code – Relocation Benefits, (16) breach of written contract, (17) breach of oral contract, (18) unfair business practices, (21) harassment and intimidation, (24) fraud, and (27) declaratory relief. Defendants’ demurrer to the TAC’s tenth, twelfth, seventeenth, and twenty-fourth causes of action was sustained without leave to amend.

Defendants now move to compel the depositions of Plaintiffs Brian Edward Kenny (Kenny), Dong Ju Mc Tavish Park (Park), Mayson Tillotson (Tillotson), Ronnie Cuevas (Cuevas), and Samantha Silliman (Silliman) (collectively, Plaintiffs) and production of documents as identified in the deposition notices. Defendants also seek monetary sanctions.

Plaintiffs are self-represented and did not file an opposition.

Legal Standard

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document … described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document … described in the deposition notice.” (CCP § 2025.450(a).) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document described in the deposition notice. (CCP § 2025.450(b)(1).) The motion shall also be accompanied by a meet and confer declaration. (CCP § 2025.450(b)(2).)

If the motion is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2025.450(g)(1).)

Discussion

Defendants present evidence of valid deposition notices served electronically on various dates, but Plaintiffs failed to appear:

Plaintiffs

Deposition Notice Served

Deposition Date

Kenny and Park

October 6, 2020

October 16, 2020

Tillotson and Cuevas

October 8, 2020

October 19, 2020

Silliman

October 8, 2020

October 21, 2020

(Klein Decl. ¶¶ 2-6.) Plaintiffs have not responded to Defendants’ counsel’s inquiry about their non-appearance. (Id. ¶¶ 7-8.) Defendants have served their motion electronically on Plaintiffs. The Court GRANTS Defendants’ motion to compel Plaintiffs’ attendance at depositions.

However, Defendants fail to explain in their motion the “specific facts showing good cause justifying the production for inspection of any document described in the deposition notice.” (CCP § 2025.450(b)(1).) Accordingly, the Court DENIES Defendants’ request ordering Plaintiffs to produce documents responsive to the deposition notices.

Defendants seek $6,323.00 in monetary sanctions as computed as follows: $60.00 for filing fees, $2,368.00 for court reporter fees, $1,750.00 for certificates of nonappearance, and $2,145.00 in attorney fees ($390 hourly rate at 2.5 hours preparing the motion and estimated 3 hours to review the opposition, prepare a reply, and appear at the hearing). “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. . . . .” (See CCP § 2023.040.) Here, all five Plaintiffs are self-represented, and thus, sanctions cannot be assessed collectively. Defendants’ notice of motion and motion papers themselves do not itemize the sanctions for each separate plaintiff. (See notice of motion 2:7-11 [“For an order of monetary sanctions as against Plaintiffs. . . . The moving party accordingly requests sanctions in the sum of $6,323.00, against Plaintiffs.”].) Therefore, Plaintiffs do not have proper notice how much could be assessed against each one. Presumably, Defendants intended to divide the amount equally, but the motion does not state as such. Therefore, the monetary sanctions are not properly noticed. The Court DENIES Defendants’ request for monetary sanctions.

Conclusion

Defendants’ motion to compel Plaintiffs’ appearance at depositions is granted in part. Defendants are to notice Plaintiffs’ depositions within by January 14, 2021 and Plaintiffs are to appear for their depositions by February 15, 2021 unless otherwise agreed by the parties.

The Court denies Defendants’ other requests, specifically an order compelling Plaintiffs to produce documents responsive to the deposition notices and awarding monetary sanctions against Plaintiffs in Defendants’ favor.

Case Number: BC653531    Hearing Date: November 18, 2020    Dept: 32

laura shapiro, et al.,

Plaintiffs,

v.

MORAD BEN NEMAN, et. al.

Defendants.

Case No.: BC653531

Hearing Date: November 18, 2020

[TENTATIVE] order RE:

motion for sanctions

Background

A. Complaint

This is a landlord-tenant action brought by several tenants (Plaintiffs) against Defendants Morad Ben Neman (Neman), Sky High Investments Company (Sky High), and Neman Real Estate Investments, LLC (NREI) (collectively, Defendants) concerning real property located at 931 and 937 East Pico Street, Los Angeles, CA 90021 (Building). Following several rounds of demurrer, Plaintiffs filed the operative pleading, the Third Amended Complaint (TAC), on July 5, 2018. The TAC asserts causes of action for (1) breach of warranty of habitability, (2) negligence, (5) forcible detainer, (6) failure to return security deposits, (9) covenant of peaceful and quiet enjoyment, (10) constructive eviction, (11) retaliatory eviction, (12) abuse of process and frivolous filings, (13) breach of warranty of suitability, (14) illegal collection of rent, (15) violation of the Los Angeles Municipal Code – Relocation Benefits, (16) breach of written contract, (17) breach of oral contract, (18) unfair business practices, (21) harassment and intimidation, (24) fraud, and (27) declaratory relief. Defendants’ demurrer to the TAC’s tenth, twelfth, seventeenth, and twenty-fourth causes of action was sustained without leave to amend. The TAC alleges in pertinent part as follows.

In May 2002, Neman purchased the Building and illegally subdivided the Building into “Residential” and “Live-Work” units without obtaining a certificate of occupancy or certificate of rent registration from the City of Los Angeles. Throughout the years, Plaintiffs experienced numerous unhabitable living conditions while living in the Building. These uninhabitable conditions include (1) sprinkler pipes without water, (2) no heat, and (3) an infestations of bedbugs, cockroaches, and rodents. Plaintiffs made complaints about these conditions to Defendants to no avail.

In February 2016, the Los Angeles Fire Department (LAFD) conducted a Fire and Life Safety Inspection of the Building. During the inspection, the inspector realized that the Building had no fire warning system nor other fire safety devices like operable fire doors in its two freight elevators. The inspector also observed that the Building appeared to be in residential use without proper approval. The inspector issued a Notice of Violation relating to fire life safety, notified the Los Angeles Department of Building and Safety (LADBS) of the unapproved use of the Property, and referred the Building to LAFD’s Compliance Unit for legal action.

In August 2016, LAFD issued a Fire-Watch Order which, by its terms, would be in effect until LADBS issued the Building a Certificate of Occupancy.

Later that same month, LADBS inspected the Building and issued a Substandard Notice and Order to Comply determining that the Building was substandard “due to illegal occupancy.”

Because of the notices, Plaintiffs were forced to leave the Building. In some cases, Plaintiffs left by agreement with Defendants due to concerns with their safety. In other cases, Plaintiffs were subject to unlawful detainer proceedings because they refused to pay rent after learning about the notices.

B. Cross-Complaint

Sky High commenced a cross-action against Plaintiffs on October 30, 2018. Sky High’s Cross-Complaint asserts causes of action for (1) equitable indemnity for solicitation, (2) equitable indemnity for nuisance, (3) equitable indemnity for subleasing, (4) breach of contract, (5) nuisance, and (6) negligence. Sky High alleges that certain Plaintiffs failed to pay Sky High all monies due under their leases, subleased their units without Sky High’s consent, and/or failed to adequately maintain their units creating a nuisance.

Legal Standard

Courts have the authority to issue monetary sanctions, evidentiary sanctions, or terminating sanctions against parties engaging in misuse of the discovery process after giving the parties proper notice and the opportunity to be heard. (CCP § 2023.030.) The Discovery Act defines misuse of discovery as including (1) a failure to respond or to submit to an authorized method of discovery (CCP § 2023.010(d)) and (2) disobedience to a court order to provide discovery (CCP § 2023.010(g)).

The discovery statutes evince an incremental approach to discovery sanctions starting with monetary sanctions and ending with the ultimate sanction of termination. If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Wilson v. Jefferson (1985) 163 Cal. App. 3d 952, 959.)

In determining whether sanctions should be imposed, courts consider the totality of the circumstances, including the “conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246.) Generally, two facts are prerequisite to the imposition of nonmonetary sanctions: (1) absent unusual circumstances, there must be a failure to comply with a court order and (2) the failure must be willful. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)

Discussion

Defendants move for an order imposing terminating sanctions against Plaintiffs Galen Oakes, Jeanine Daniels, Teresa Flowers, Hilary Bein, Royce Burke, and Erica Weitzel (hereinafter, Plaintiffs). In the alternative to terminating sanctions, Defendants request an order imposing evidentiary sanctions against Plaintiffs precluding them from (1) introducing any evidence in support of their claim for damages arising from alleged rental payments made to Defendants and (2) allowing any witness to rely on such evidence. Apart from nonmonetary sanctions, Defendants request an order requiring Plaintiffs to produce unredacted documents and an order awarding them monetary sanctions in the total amount of $4,470.

Defendants argue that nonmonetary sanctions are warranted because Plaintiffs have failed to produce unredacted versions of documents which reflect Plaintiffs’ renting and subletting of their units as a source of income and profit. Defendants contend that this information will enable them to establish offsets derived from third-party rentals. Defendants contend that Plaintiffs’ failure to produce unredacted versions of these documents violates court orders issued over three years ago which required Plaintiffs to turn over documents responsive to Defendants’ requests for production of documents (RFP).

Defendants submit evidence showing that Plaintiffs have refused to produce unredacted versions of the documents despite Defendants’ repeated requests. (Klein Decl. ¶¶ 9-12, Exs. 7-13.) For example, Plaintiffs redacted the email addresses of persons who were involved in the rental of Jeanine Daniels’s unit. (See Klein Decl. Ex. 8.)

In response, Plaintiffs argue that the redactions were justified because the redactions concerned information irrelevant to the subject matter of this action. The Court disagrees. Plaintiffs failed to serve timely responses to the RFPs and therefore waived objections those requests, including those based on relevancy or privilege. (Klein Decl. ¶ 4; CCP § 2031.300.) Having waived objections, Plaintiffs were obligated to produce “all documents or things in the demanded category that [were] in [its] possession, custody, or control.” (CCP § 2031.220.) Plaintiffs did not retain discretion to redact the documents. By redacting the responsive documents based on a relevancy determination, Plaintiffs violated the court orders requiring them to produce all responsive documents.

Plaintiffs contend that Defendants’ request for a court order requiring Plaintiffs to produce unredacted documents is untimely. Not so. CCP section 2031.320 governs motions to compel compliance with a party’s statement of compliance. The statute places “no fixed time limit on this motion. And, no ‘attempt to resolve informally’ need be shown. All that has to be shown is the responding party’s failure to comply as agreed.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 8:1508.1; accord Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 903 (stating that “no time limit is placed on” motions to compel compliance).)

Although the Court has concluded that Plaintiffs violated a court order, the Court finds the imposition of nonmonetary sanctions to be unwarranted. Plaintiffs produced responsive documents (albeit with redactions) and, upon reviewing this motion, produced some of the unredacted documents. Moreover, Plaintiffs do not appear to have redacted the documents with the intent of hiding relevant evidence. Under the circumstances, terminating and evidentiary sanctions would be too severe. Instead, the Court shall impose monetary sanctions against Plaintiffs because Plaintiffs made unauthorized redactions to the documents and should have produced unredacted versions of the documents upon Defendants’ repeated requests.

Conclusion

Defendants’ motion for sanctions is granted in part.

The Court awards Defendants monetary sanctions of $4,470 against Plaintiffs Galen Oakes, Jeanine Daniels, Teresa Flowers, Hilary Bein, Royce Burke, and Erica Weitzel and their counsel of record. Monetary sanctions must be paid within 30 days. Plaintiffs must also produce unredacted versions of the documents in question within 30 days.

Case Number: BC653531    Hearing Date: July 08, 2020    Dept: 32

laura shapiro, et al.,

Plaintiffs,

v.

MORAD BEN NEMAN, et. al.

Defendants.

Case No.: BC653531

Hearing Date: July 8, 2020

[TENTATIVE] order RE:

motion for summary adjudication

Background

A. Complaint

This is a landlord-tenant action brought by several tenants (Plaintiffs) against Defendants Morad Ben Neman (Neman), Sky High Investments Company (Sky High), and Neman Real Estate Investments, LLC (NREI) (collectively, Defendants) concerning real property located at 931 and 937 East Pico Street, Los Angeles, CA 90021 (Building). Following several rounds of demurrer, Plaintiffs filed the operative pleading, the Third Amended Complaint (TAC), on July 5, 2018. The TAC asserts causes of action for (1) breach of warranty of habitability, (2) negligence, (5) forcible detainer, (6) failure to return security deposits, (9) covenant of peaceful and quiet enjoyment, (10) constructive eviction, (11) retaliatory eviction, (12) abuse of process and frivolous filings, (13) breach of warranty of suitability, (14) illegal collection of rent, (15) violation of the Los Angeles Municipal Code – Relocation Benefits, (16) breach of written contract, (17) breach of oral contract, (18) unfair business practices, (21) harassment and intimidation, (24) fraud, and (27) declaratory relief. Defendants’ demurrer to the TAC’s tenth, twelfth, seventeenth, and twenty-fourth causes of action was sustained without leave to amend. The TAC alleges in pertinent part as follows.

In May 2002, Neman purchased the Building and illegally subdivided the Building into “Residential” and “Live-Work” units without obtaining a certificate of occupancy or certificate of rent registration from the City of Los Angeles. Throughout the years, Plaintiffs experienced numerous unhabitable living conditions while living in the Building. These uninhabitable conditions include (1) sprinkler pipes without water, (2) no heat, and (3) an infestations of bedbugs, cockroaches, and rodents. Plaintiffs made complaints about these conditions to Defendants to no avail.

In February 2016, the Los Angeles Fire Department (LAFD) conducted a Fire and Life Safety Inspection of the Building. During the inspection, the inspector realized that the Building had no fire warning system nor other fire safety devices like operable fire doors in its two freight elevators. The inspector also observed that the Building appeared to be in residential use without proper approval. The inspector issued a Notice of Violation relating to fire life safety, notified the Los Angeles Department of Building and Safety (LADBS) of the unapproved use of the Property, and referred the Building to LAFD’s Compliance Unit for legal action.

In August 2016, LAFD issued a Fire-Watch Order which, by its terms, would be in effect until LADBS issued the Building a Certificate of Occupancy.

Later that same month, LADBS inspected the Building and issued a Substandard Notice and Order to Comply determining that the Building was substandard “due to illegal occupancy.”

Because of the notices, Plaintiffs were forced to leave the Building. In some cases, Plaintiffs left by agreement with Defendants due to concerns with their safety. In other cases, Plaintiffs were subject to unlawful detainer proceedings because they refused to pay rent after learning about the notices.

B. Cross-Complaint

On October 30, 2018, Sky High filed a Cross-Complaint against Plaintiffs. Sky High’s Cross-Complaint asserts causes of action for (1) equitable indemnity for solicitation, (2) equitable indemnity for nuisance, (3) equitable indemnity for subleasing, (4) breach of contract, (5) nuisance, and (6) negligence. Sky High alleges that certain Plaintiffs failed to pay Sky High all monies due under their leases, subleased their units without Sky High’s consent, and/or failed to adequately maintain their units creating a nuisance.

Discussion

Defendants move for summary adjudication of Plaintiffs’ fifteenth cause of action for violation of the Los Angeles Municipal Code (LAMC) sections on relocation benefits (LAMC §§ 163 et seq.).[1]

Article 3 of Chapter XVI of the LAMC sets forth the City of Los Angeles’s tenant relocation assistance program. The Article closely tracks the statutory scheme on tenant relocation assistance (H&S §§ 17975 et seq.). According to Article 3, “[a]ny tenant who is displaced or subject to displacement from a residential rental unit as result of an order to vacate or any order requiring the vacation of the residential unit by the [Departments of Building and Safety, Fire, or Housing of the City of Los Angeles] due to a violation so extensive and of such a nature that the immediate health and safety of the residents is endangered, shall be entitled to relocation benefits payable by the landlord in the amounts prescribed in Section 163.05.” (LAMC § 163.02(A).) Such relocation benefits “shall be paid by the landlord to the tenant within ten days after the date that the order to vacate is first mailed to the landlord and posted on the premises, or at least 20 days prior to the vacation date set forth in the order to vacate, whichever occurs later.” (LAMC § 163.04(A).) “If the landlord fails, neglects or refuses to make timely payments to a tenant pursuant to an order to pay relocation benefits … and if the tenant does not receive relocation payments from the City, the landlord shall be liable to the tenant in a civil action for an amount equal to one and one-half times the relocation benefits,” plus reasonable attorney fees and costs. (LAMC § 163.06(A).)

In their fifteenth cause of action, Plaintiffs allege that the LAMC obligated Defendants to pay them relocation benefits by May 19, 2017 because LAFD issued an order to vacate the Building by June 8, 2017. (TAC ¶¶ 114, 197.) Plaintiffs allege that Defendants failed to pay the relocation benefits by that date. (TAC ¶¶ 197, 200.)

During deposition, Plaintiffs’ attorney clarified that Plaintiffs are only requesting the penalties set forth in LAMC section 163.06(A) because the City provided Plaintiffs with relocation benefits in the sum of $382,850 on June 21, 2017 (RJN Exs. 1-2). (Shapiro Depo. p. 31.)

Defendants argue that Plaintiffs are not entitled to relocation benefit penalties under the plain language of LAMC section 163.06(A). The Court agrees. “If the landlord fails, neglects or refuses to make timely payments to a tenant pursuant to an order to pay relocation benefits … and if the tenant does not receive relocation payments from the City, the landlord shall be liable to the tenant in a civil action for an amount equal to one and one-half times the relocation benefits….” (LAMC § 163.06(A) (emphasis added).) Put differently, under this statute, a landlord is liable to the tenant in a civil action for relocation benefit penalties if two conditions are met: (1) “the landlord fails, neglects or refuses to make timely payments to a tenant pursuant to an order to pay relocation benefits” and (2) “the tenant does not receive relocation payments from the City.” As Defendants note, the term “timely” is absent from the second condition. The absence of this term in the second condition in conjunction with its usage in the first condition is compelling evidence that the second condition is not subject to a timeliness requirement. Consequently, under LAMC section 163.06(A), whenever the tenant receives relocation benefits from the City, the landlord is not liable to the tenant in a civil action for relocation benefit penalties. Because Plaintiffs received relocation benefits from the City (RJN Exs. 1-2), they are not entitled to relocation benefit penalties from Defendants.

Resisting this conclusion, Plaintiffs contend that Defendants are liable for relocation penalties because the underlying statutory scheme (H&S §§ 17975 et seq.), which these ordinances track, requires an owner to pay such penalties when the owner fails to furnish timely relocation benefits.

Plaintiffs’ argument raises an issue of statutory interpretation. The fundamental rule in statutory interpretation is that a court should ascertain the Legislature’s intent in order to give effect to the purpose of the law. (Hubbard v. California Coastal Com. (2019) 38 Cal.App.5th 119, 135.) To ascertain the Legislature’s intent, courts must “first examine the words of the statute and try to give effect to the usual, ordinary import of the language while not rendering any language surplusage. These words must be construed in context and in light of the statute's obvious nature and purpose, and must be given a reasonable and commonsense interpretation that is consistent with the Legislature’s apparent purpose and intention. [Citation.] Our interpretation should be practical, not technical, and should also result in wise policy, not mischief or absurdity. [Citation.] We do not interpret statutes in isolation. Instead, we read every statute with reference to the entire scheme of law of which it is a part in order to harmonize the whole. [Citation.] If the statutory language is clear, we should not change it to accomplish a purpose that does not appear on the face of the statute or from its legislative history.” (Id. at 135-36.)

Section 17975.3 sets forth a tenant’s right to relocation benefit penalties from the owner. This statute states: “Any owner or designated agent who does not make timely payment as specified in Section 17975.1 shall be liable to the tenant for an amount equal to 1 ½ times the relocation benefits payable pursuant to Section 17975.2” (§ 17975.3(a).) As section 17975.3 suggests, section 17975.1 sets forth criteria as to when relocation benefits are due, and section 17975.2 dictates how to calculate the amount of the relocation benefits.

Section 17975.5 sets forth the City’s right to advance relocation benefits to the tenants on behalf of the owner and subsequently seek reimbursement from the owner for those payments: “If the owner or designated agent fails, neglects, or refuses to pay relocation payments to a displaced tenant or a tenant subject to displacement …, the local enforcement agency may advance relocation payments as specified in Section 17975.2. If the local enforcement agency, pursuant to locally adopted policies, offers to advance relocation payments in accordance with Section 17975.2, the local enforcement agency shall be entitled to recover from the owner any amount paid to a tenant pursuant to this section….” (§ 17975.5(a).) Like section 17975.3, section 17975.5 contains its own penalty provision imposed against the owner: “The local enforcement agency shall also be entitled to recover from the owner or designated agent an additional amount equal to the sum of one-half the amount so paid, but not to exceed ten thousand dollars ($10,000), as a penalty for failure to make timely payment to the displaced tenant, and the local enforcement agency’s actual costs, including direct and indirect costs, of administering the provision of benefits to the displaced tenant.” (Ibid.)

Under Plaintiffs’ interpretation of this statutory scheme, where the City has advanced relocation benefits to the tenants on behalf of the owner, the owner is liable to the tenants and the City for relocation benefit penalties equal to the sum of one-half the amount paid. The Court concludes that the statutory scheme’s language does not support this interpretation. The statutory scheme says nothing about the imposition of double penalties, a consequence which is unfavored in the law. (See De Anza Santa Cruz Mobile Estates Homeowners Assn. v. De Anza Santa Cruz Mobile Estates (2001) 94 Cal.App.4th 890, 912 (examining a party’s argument that a statute allowed for recovery of statutory penalties and punitive damages and favoring the interpretation that the statutory penalties were the exclusive remedy because it “avoid[ed] the possibility of double penalties for the same conduct”); Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 760 (“To impose both a statutory penalty or multiple damages award and punitive damages in those circumstances would be duplicative. [Citation.] We presume that the Legislature did not intend to allow such a double recovery absent a specific indication to the contrary.”).)

To the contrary, the statutory scheme suggests that these two penalties are mutually exclusive when the owner fails to timely pay relocation benefits. (Murray Co. v. Occupational Safety & Health Appeals Bd. (2009) 180 Cal.App.4th 43, 53 (noting that “a specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates”).) If the local enforcement agency advances relocation benefits to the tenants, the agency can seek penalties from the owner. If the local enforcement agency does not advance the relocation benefits, the tenants can seek penalties from the owner. As noted ante, this is the sensible interpretation that the LAMC has followed.

Finally, the Court disagrees with Plaintiffs that this interpretation runs afoul of the Legislature’s intent in enacting this statutory scheme — “to provide an expedient means by which to provide relocation funds to tenants.” (H&S § 17975.9.) Where, as here, the local enforcement agency advances the relocation funds to tenants, tenants are provided with relocation benefits and owners still face penalties to incentivize them to comply with their statutory obligations.

Conclusion

Defendants’ motion for summary adjudication of Plaintiffs’ fifteenth cause of action is granted.


[1] Defendants’ requests for judicial notice are granted. (Evid. Code § 452(c), (d).)

Case Number: BC653531    Hearing Date: February 24, 2020    Dept: 32

laura shapiro, et al.,

Plaintiffs,

v.

MORAD BEN NEMAN, et. al.

Defendants.

Case No.: BC653531

Hearing Date: February 24, 2020

[TENTATIVE] order RE:

motion for an order permitting discovery of defendants’ financial condition

BACKGROUND

This is a landlord-tenant action brought by several tenants against Defendants Morad Ben Neman (“Neman”), Sky High Investments Company (“Sky High”), and Neman Real Estate Investments, LLC (“NREI”) (collectively, “Defendants”) concerning real property located at 931 and 937 East Pico Street, Los Angeles, CA 90021 (“Building”). In the Third Amended Complaint (“TAC”), Plaintiffs allege seventeen causes of action based on breach of the implied warranty of habitability, negligence, and various statutory violations.

On October 10, 2018, the Court sustained Defendants’ demurrer without leave to amend to the following causes of action: (10) constructive eviction, (12) abuse of process and frivolous filings, (17) breach of oral contract, and (24) fraud.

On October 30, 2018, Sky High cross-complained against Plaintiffs alleging causes of action for (1) equitable indemnity for solicitation; (2) equitable indemnity for nuisance; (3) equitable indemnity for subleasing; (4) breach of contract; (5) nuisance; and (6) negligence.

LEGAL STANDARD

Civil Code section 3294(a) authorizes an award of punitive damages “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.”

“In order for a jury (and the reviewing court) to ascertain whether a punitive damages award is properly calibrated so as to inflict economic pain without financially ruining the defendant, it needs some evidence about the defendant’s financial condition and ability to pay the award.” (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 192.) A plaintiff is precluded from conducting pretrial discovery of the defendant’s financial discovery unless the court enters an order permitting such discovery pursuant to Civil Code section 3295(c). That subdivision states in pertinent part: “Upon motion by the plaintiff supported by appropriate affidavits and after a hearing, if the court deems a hearing to be necessary, the court may at any time enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294.”

DISCUSSION[1]

Plaintiffs move for an order permitting pretrial discovery of Defendants’ financial condition pursuant to Civil Code section 3295(c).

Defendants respond, and the Court agrees, that this motion must be denied because Plaintiffs have not supported this motion with admissible evidence. (See Civ. Code § 3295(c) (stating that motion must be “supported by appropriate affidavits”).) Specifically, Plaintiffs failed to authenticate the numerous exhibits submitted with its moving papers. (Evid. Code § 1401 (“Authentication of a writing is required before it may be received in evidence.”).) Without authentication, the Court cannot reasonably conclude that these documents are what Plaintiffs purport them to be.

In reply, Plaintiffs’ counsel submits a declaration averring that he has “reviewed all of the exhibits submitted with Plaintiffs’ Motion” and affirming “that all the exhibits submitted are true and correct copies of what they are presented to be and that each exhibit was reviewed to ensure authenticity before submission.” (Tey Supp. Decl. ¶ 4.) This authentication attempt is unavailing, procedurally and substantively. Procedurally, this authentication attempt arrives too late. Defendants had already opposed this motion based on a correct assessment that the exhibits were inadmissible. Based on this assessment, Defendants justifiably did not submit conflicting evidence. Allowing Plaintiffs to authenticate these exhibits on reply would preclude Defendants from opposing this motion on the merits. Substantively, this authentication attempt is too conclusory. Normally, a declarant authenticating exhibits identifies each exhibit and states that the attached copy is a true and correct copy of the same. This ensures that the declarant has thoroughly reviewed each item and understands what exhibits are being authenticated. Tey’s sweeping statement that more than twenty exhibits are “true and correct copies” fails to provide the Court with this necessary assurance.

CONCLUSION

Plaintiffs’ motion for an order permitting pretrial discovery of Defendants’ financial condition is DENIED.


[1] Defendants’ objections to the Tey Declaration are overruled. Defendants’ objections to the exhibits attached to the moving papers are sustained based on lack of authentication.

Case Number: BC653531    Hearing Date: December 09, 2019    Dept: 32

laura shapiro, et al.,

Plaintiffs,

v.

MORAD BEN NEMAN, et. al.

Defendants.

Case No.: BC653531

Hearing Date: December 9, 2019

[TENTATIVE] order RE:

plaintiff Santos’s motion TO COMPEL neman’s Further responses to (1) special interrogatories, set one and (2) requests for admission, set two

BACKGROUND

This is a landlord-tenant action brought by several tenants against Defendants Morad Ben Neman (“Neman”), Sky High Investments Company (“Sky High”), and Neman Real Estate Investments, LLC (“NREI”) (collectively, “Defendants”) concerning real property located at 931 and 937 East Pico Street, Los Angeles, CA 90021 (“Building”). In the Third Amended Complaint (“TAC”), Plaintiffs allege seventeen causes of action based on breach of the implied warranty of habitability, negligence, and various statutory violations.

On October 10, 2018, the Court sustained Defendants’ demurrer without leave to amend to the following causes of action: (10) constructive eviction; (12) abuse of process and frivolous filings; (17) breach of oral contract; and (24) fraud.

On October 30, 2018, Sky High cross-complained against Plaintiffs alleging causes of action for (1) equitable indemnity for solicitation; (2) equitable indemnity for nuisance; (3) equitable indemnity for subleasing; (4) breach of contract; (5) nuisance; and (6) negligence.

OBJECTIONS

Neman’s objections to the Tey Declaration are OVERRULED.

SI MOTION

Plaintiff Perry Santos (“Santos”) moves to compel Neman to provide further responses to Santos’s Special Interrogatories (“SI”), Set One, Nos. 1-3.

A. Legal Standard

On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that (1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents under CCP section 2030.230 is unwarranted or the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or too general. (CCP § 2030.300(a).) The responding party has the burden of justifying the objections thereto. (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-221.)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2030.300(d).)

B. Discussion

SI No. 1 asks: “Have you ever been convicted of a criminal felony?” SI No. 2 asks: “If your response to Special Interrogatory No. 1 is in the affirmative, provide the details of when

each conviction occurred.” SI No. 3 asks: “If your response to Special Interrogatory No. 1 is in the affirmative, provide the court, case name, and case number of each conviction.” (Tey Decl. Ex. A.)

Neman responded to each of these interrogatories with the following objections: overbreadth, undue burden, and irrelevancy. (Tey Decl. Ex. C.) Neman bears the burden of justifying these objections. (Coy, supra, 58 Cal.2d at 220-221.)

Neman argues that good cause does not support these SIs because the information sought is equally available to Santos. The Court finds this argument unpersuasive for two reasons. First, the failure to assert a specific objection to a discovery request waives that particular objection. (See Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1125.) Neman did not assert this specific objection to these SIs so Neman waived this objection. Second, this objection is premised on the finding that the information sought “is as readily available to the [propounding party] as it is to the [responding party].” (Alpine Mut. Water Co. v. Superior Court for Ventura County (1968) 259 Cal.App.2d 45, 54.) These are interrogatories requesting information about Neman’s history of felony convictions, the timing of those convictions, and court information about the convictions. While this information may be publicly available, such information is presumably more readily accessible to Neman than Santos.

Neman argues that this information is not reasonably calculated to lead the discovery of admissible evidence because the crime to which Neman plead guilty — financial structuring — is not a crime of moral turpitude and therefore not a valid ground for impeachment. The Court disagrees. The “moral turpitude” test is “not required in a civil case” in determining the relevancy of a prior felony conviction. (Robbins v. Wong (1994) 27 Cal.App.4th 261, 274.) Hence, notwithstanding their designations as crimes of moral turpitude, these convictions may be relevant. (See also Form Interrogatory 2.8 (requesting party’s felony conviction information).) Further, adopting the “moral turpitude” test does not result in a different conclusion. Neman, who bears the burden of proof, has failed to demonstrate that all of his prior criminal convictions did not involve moral turpitude.

Neman has not substantiated any objections to these SIs.

Santos’s motion to compel further responses to SI, Set One, Nos. 1-3 is GRANTED.

RFA MOTION

Santos moves to compel Neman’s further responses to his Requests for Admission (“RFA”), Set Two, Nos. 1-2.

A. Legal Standard

On receipt of a response to requests for admission, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: (1) an answer to a particular request is evasive or incomplete or (2) an objection to a particular request is without merit or too general. (CCP § 2033.290(a).)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2033.290(d).)

B. Discussion

RFA No. 1 demands that Neman admit that he plead guilty to violations of (1) 18 U.S.C. section 371, (2) 26 USC section 7206(1), and (3) 26 USC section 7206(2) in a district court case entitled USA v. Morad Neman, Case No. LACR 14-521(A)-JAK. RFA No. 2 demands that Neman admit that he was convicted of the aforementioned felony offenses.

Neman responded to both RFAs with objections. Neman asserted, among other things, that the RFAs were incomplete and impermissibly compound in violation of CCP section 2033.060(d) and (f).

Neman’s objections to RFA No. 2 for incompleteness is well-taken. “Each request for admission shall be full and complete in and of itself.” (CCP § 2033.060(d) (emphasis added).) RFA No. 2 is not full and complete in and of itself because it incorporates by reference RFA No. 1.

Neman’s objection to both RFAs as being impermissibly compound is also well-taken. With an exception not relevant here, “[n]o request for admission shall contain subparts, or a compound, conjunctive, or disjunctive request….” (CCP § 2033.060(f).) While these requests could be read as demanding one response each — (1) an admittance or denial that Neman plead guilty to all three statutory violations and (2) an admittance or denial that Neman was convicted of all three statutory violations — Plaintiff makes clear in reply that this was not his intention: “[T]he request has been appropriately subdivided into parts which allow the responding party to address each part separately.” (Reply at 5.) This is impermissible under the plain statutory language of section 2033.060(f) which categorically prohibits subparts and conjunctive requests.[1]

Santos’s motion to compel further responses to RFA, Set Two, Nos. 1-2 is DENIED. This ruling does not affect Santos’s right to re-serve Neman with RFAs that demand the same admissions.

CONCLUSION

Santos’s motion to compel further responses to SI, Set One, Nos. 1-3 is GRANTED.

Santos’s motion to compel further responses to RFA, Set Two, Nos. 1-2 is DENIED.

The Court will not impose sanctions on either party or require Santos to pay additional filing fees because Santos was partially successful in bringing this motion.


[1] Neman’s objection that the RFAs impermissibly require reference to outside documents is meritless. Neman cites no legal authority in support of this proposition. Moreover, such a limitation would be at odds with the purpose of RFAs — “to set at rest triable issues so that they will not have to be tried.” (See City of Glendale v. Marcus Cable Associates, LLC (2015) 235 Cal.App.4th 344, 353.)

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