This case was last updated from Los Angeles County Superior Courts on 03/11/2022 at 20:41:48 (UTC).

MARHNAZ RAD ET AL VS SALOME L SHEK ET AL

Case Summary

On 10/02/2017 MARHNAZ RAD filed a Contract - Other Contract lawsuit against SALOME L SHEK. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judges overseeing this case are DEIRDRE HILL, ZAVEN V. SINANIAN and FREDERICK C. SHALLER. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7993

  • Filing Date:

    10/02/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DEIRDRE HILL

ZAVEN V. SINANIAN

FREDERICK C. SHALLER

 

Party Details

Plaintiffs

RAD MARHNAZ

RAD AMIR

Defendants

SHEK SALOME L.

REAL CHOICE MANAGEMENT INC.

Attorney/Law Firm Details

Plaintiff Attorney

OHN GERALD SANG

Defendant Attorneys

MIZELL BRIAN SCOTT

CALDWELL SUSAN L. ESQ.

 

Court Documents

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL

3/2/2022: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL

Opposition - OPPOSITION TO DEFENDANTS' JOINT EX PARTE APPLICATION TO CONTINUE TRIAL

3/3/2022: Opposition - OPPOSITION TO DEFENDANTS' JOINT EX PARTE APPLICATION TO CONTINUE TRIAL

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL)

3/4/2022: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL)

Stipulation and Order to use Certified Shorthand Reporter

2/3/2022: Stipulation and Order to use Certified Shorthand Reporter

Notice of Ruling

2/10/2022: Notice of Ruling

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY ADJUDICATION (REHEARING AFTER S...)

2/3/2022: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY ADJUDICATION (REHEARING AFTER S...)

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

1/6/2022: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR RECONSIDERATION)

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

12/16/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR RECONSIDERATION)

Motion for Reconsideration

11/29/2021: Motion for Reconsideration

Notice - NOTICE OF AMENDED MOTION FOR RECONSIDERATION AND CCP 473 RELIEF OF DEFENDANT SHEK

11/30/2021: Notice - NOTICE OF AMENDED MOTION FOR RECONSIDERATION AND CCP 473 RELIEF OF DEFENDANT SHEK

Objection - OBJECTION TO THE DECLARATION OF SUSAN CALDWELL AND EXHIBITS IN SUPPORT OF DEFENDANT SALOME SHEK'S MOTION FOR RECONSIDERATION OF ORDER TO DEEM FACTS ADMITTED AND SECTION 473 RELIEF

12/3/2021: Objection - OBJECTION TO THE DECLARATION OF SUSAN CALDWELL AND EXHIBITS IN SUPPORT OF DEFENDANT SALOME SHEK'S MOTION FOR RECONSIDERATION OF ORDER TO DEEM FACTS ADMITTED AND SECTION 473 RELIEF

Opposition - OPPOSITION TO DEFENDANT SALOME SHEK'S MOTION FOR RECONSIDERATION OF ORDER TO DEEM FACTS ADMITTED AND SECTION 473 RELIEF

12/3/2021: Opposition - OPPOSITION TO DEFENDANT SALOME SHEK'S MOTION FOR RECONSIDERATION OF ORDER TO DEEM FACTS ADMITTED AND SECTION 473 RELIEF

Request for Judicial Notice

12/3/2021: Request for Judicial Notice

Declaration - DECLARATION OF GERALD S. OHN IN SUPPORT OF PLAINTIFF AMIR RAD'S OPPOSITION TO DEFENDANT SALOME L. SHEK'S MOTION FOR RECONSIDERATION OF ORDER TO DEEM FACTS ADMITTED AND SECTION 473 RELIEF

12/3/2021: Declaration - DECLARATION OF GERALD S. OHN IN SUPPORT OF PLAINTIFF AMIR RAD'S OPPOSITION TO DEFENDANT SALOME L. SHEK'S MOTION FOR RECONSIDERATION OF ORDER TO DEEM FACTS ADMITTED AND SECTION 473 RELIEF

Notice of Change of Address or Other Contact Information - NOTICE OF CHANGE OF CONTACT INFORMATION FOR PLAINTIFFS COUNSEL

12/9/2021: Notice of Change of Address or Other Contact Information - NOTICE OF CHANGE OF CONTACT INFORMATION FOR PLAINTIFFS COUNSEL

Reply - REPLY TO OPPOSITION TO MOTION FOR RECONSIDERATION AND CCP 473 RELIEF

12/13/2021: Reply - REPLY TO OPPOSITION TO MOTION FOR RECONSIDERATION AND CCP 473 RELIEF

Exhibit List

11/4/2021: Exhibit List

Separate Statement

11/4/2021: Separate Statement

134 More Documents Available

 

Docket Entries

  • 06/22/2022
  • Hearing06/22/2022 at 08:30 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Jury Trial

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  • 06/15/2022
  • Hearing06/15/2022 at 10:00 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Final Status Conference

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  • 04/06/2022
  • Hearing04/06/2022 at 1:30 PM in Department STL-E at 312 North Spring Street, Los Angeles, CA 90012; MSC Timeslot

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  • 03/25/2022
  • Hearing03/25/2022 at 08:30 AM in Department M at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion for Judgment on the Pleadings

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  • 03/04/2022
  • Docketat 08:30 AM in Department M, Deirdre Hill, Presiding; Hearing on Ex Parte Application (to Continue Trial) - Held - Motion Granted

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  • 03/04/2022
  • DocketMinute Order ( (Hearing on Ex Parte Application to Continue Trial)); Filed by Clerk

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  • 03/03/2022
  • DocketOpposition (to Defendants' Joint Ex Parte Application to Continue Trial); Filed by Amir Rad (Plaintiff)

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  • 03/02/2022
  • DocketEx Parte Application (to Continue Trial); Filed by Salome L. Shek (Defendant); Real Choice Management Inc. (Defendant)

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  • 02/10/2022
  • DocketNotice of Ruling; Filed by Amir Rad (Plaintiff)

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  • 02/03/2022
  • Docketat 10:00 AM in Department M, Deirdre Hill, Presiding; Hearing on Motion for Summary Adjudication ((Rehearing after submission vacated)) - Held - Motion Denied

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224 More Docket Entries
  • 01/24/2018
  • DocketAnswer; Filed by Real Choice Management Inc. (Defendant)

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  • 01/24/2018
  • DocketReceipt; Filed by Real Choice Management Inc. (Defendant)

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  • 01/24/2018
  • DocketDEFENDANT REAL CHOICE MANAGEMENT, INC.'S ANSWER TO PLAINTIFF'S COMPLAINT

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  • 12/27/2017
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 12/27/2017
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 12/27/2017
  • DocketProof-Service/Summons; Filed by Marhnaz Rad (Plaintiff); Amir Rad (Plaintiff)

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  • 12/27/2017
  • DocketProof-Service/Summons; Filed by Marhnaz Rad (Plaintiff); Amir Rad (Plaintiff)

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  • 10/02/2017
  • DocketCOMPLAINT FOR: 1. BREACH OF IMPLIED WARRANTY OF HABITABILITY ;ETC

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  • 10/02/2017
  • DocketSUMMONS

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  • 10/02/2017
  • DocketComplaint; Filed by Marhnaz Rad (Plaintiff); Amir Rad (Plaintiff)

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Tentative Rulings

Case Number: ****7993 Hearing Date: July 19, 2022 Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

MARHNAZ RAD, et al.,

Plaintiffs,

Case No.:

****7993

vs.

[Tentative] RULING

SALOME L. SHEK, et al.,

Defendants.

Hearing Date: July 19, 2022

Moving Parties: Defendant Salome L. Shek

Responding Party: Plaintiff Amir Rad

Motion to Compel Plaintiff Amir Rad’s Deposition Per Court Order and to Continue Trial for 30 Days Due to Certain Experts No Longer Available Until Late-August for Deposition and Due to Failure of Plaintiff to Produce Experts as Noticed

The court considered the moving, opposition, and reply papers.

RULING

The motion is GRANTED as to compelling plaintiff Amir Rad to appear for a continuation of his deposition, within ten days at a mutually agreeable date and time,

to allow defendant Shek’s counsel to ask questions on the subject of injuries plaintiff claims he has suffered as a result of his tenancy.

The motion is GRANTED as to continuing the trial date.

BACKGROUND

On October 2, 2017, Marhnaz Rad and Amir Rad filed a complaint against Salome L. Shek and Real Choice Management Inc. for (1) breach of implied warranty of habitability, (2) negligence, and (3) nuisance. Plaintiffs allege that they resided at the subject property at 30181 Via Rivera, Rancho Palos Verdes, from September 20, 2015 to April 2017. The following conditions existed at the property in the common areas and in plaintiffs’ residence: cockroach infestations and lack of insect control; rodent infestations, feces, and lack of rodent control; pollution from roach feces floating in the air; and bites from cockroaches and other insects; stoves and ovens that are inoperative; broken kitchen and bathroom cabinets; inoperable air conditioning; broken tiles and other flooring; toxic mold; inoperable smoke alarms; lack of sanitary plumbing; holes in ceilings and/or interior walls; water leaks; and inoperable garage opener. Around late December 2016 and early January 2017, plaintiffs informed defendants of elevated levels of mold and requested remediation. Defendants did not remedy these issues. On February 2, 2017, plaintiffs requested that defendants repair issues as alleged above. Defendants did not remedy these issues.

On February 3, 2022, the court denied defendants Salome Shek and Real Choice Management’s motion for summary adjudication.

On May 25, 2022, the court granted defendants’ motion to compel plaintiff’s 2nd deposition.

Trial is set for August 2, 2022.

LEGAL AUTHORITY

CCP 2025.450(a) provides: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, . . , 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(b) provides, “A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

Compel additional deposition

CCP 2025.610 states: “(a) Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.

(b) Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken. . . .”

Continue trial

Pursuant to CRC Rule 3.1332, “(a) To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain. (b) A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered. (c) Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. . . .”

CRC Rule 3.1332(d) sets forth other factors that are relevant in determining whether to grant a continuance.

DISCUSSION

Defendant Salome Shek (with joinder by Real Choice Management, Inc.) requests an order compelling plaintiff Amir Rad to appear for a third deposition in accordance with the court’s May 25, 2022 order and to continue the August 2, 2022 trial date for 30 to 45 days.

Compelling deposition

On May 25, 2022, the court granted defendant Real Choice Management’s motion to compel plaintiff’s deposition, volume 2. The court ordered that plaintiff Amir Rad appear for his deposition and that the deposition “shall be solely on the subject of injuries he claims he has suffered as a result of his tenancy.” The court did not impose any other limitations. The court continued the trial to August 2, 2022.

On June 10, 2022, plaintiff appeared for deposition. Defendant contends that plaintiff’s counsel instructed plaintiff to not respond to questions about bodily injuries, damages in general, economic damages, repairs witnessed or undertaken relevant to claims of injuries and damages, damages for rent monies paid, prior locations where plaintiff has lived (relevant to injuries and alternative exposure defenses), employment and loss of earnings, appliance and damages asserted related to a stove and awning, chemical exposures at the workplace, health, and claims of mold. Defendant also asserts that defense counsel for Shek was not allowed to ask any questions.

In opposition, plaintiff contends that he answered defendants’ questions regarding the injuries he claims he has suffered as a result of his tenancy for nearly six hours. He also responded, “no” when asked whether he has ever worked with chemicals, or solvents, or petroleum products in his work environment at Gardena Nissan. He also testified about his economic damages, including employment and loss of earning (over 20 pages of deposition testimony). He also answered numerous questions about rent monies paid (14 pages on this topic). He further answered questions regarding prior locations/residences and repairs witnessed or undertaken and about appliances, including the stove and awning. Plaintiff argues that his counsel asserted proper objections and instructions not to answer certain improper questions regarding the injuries of plaintiff Marhnaz Rad and details regarding the lease.

In reviewing the transcript, the court finds that plaintiff testified regarding his injuries, which was within the scope of the court order. Several of the other questions are outside of the order.

The court notes, however, that defendant Shek’s counsel was not afforded the opportunity to ask questions. According to defense counsel, “the deposition closed without me being able to ask one question for Defendant Shek. When I requested dates for a resumed deposition (independent of the dispute over instructions not to respond), plaintiff has refused.”

On this ground, the motion is GRANTED to allow defendant Shek’s counsel to ask questions.

Request to continue trial

Defendant Shek contends that there is good cause to continue the hearing date to permit resolution of discovery completion of plaintiff’s deposition and because “certain experts now are not being available for deposition until after the current trial date.” Defendant asserts that expert depositions will start on July 19, 2022 and defendant’s primary medical expert will be deposed either July 21 or July 25. Defendant explains that defense expert Griswold does not return until mid-August. Further, defense counsel for Real Choice Property Management is on vacation in late-August, returning early September. Defendant also contends that the five-year deadline will expire in April 2023.

In opposition, plaintiff argues that there is no good cause for a continuance. Plaintiff asserts that his two retained experts are Dan Napier and James Dahlgren, M.D. Napier was scheduled for a Zoom deposition on July 13 but, plaintiff states, defendants took the deposition off calendar and scheduled it for July 26. Dr. Dahlgren was scheduled for deposition on July 11 but defendants took it off calendar. Plaintiff’s counsel offered July 19, but defendants requested dates in late July. Plaintiff timely noticed the depositions of defendants’ three retained experts for July 18 but defense counsel stated that none of them are available and proposed dates in August.

In opposition, defendant Real Property explains that counsel met and conferred on July 12, 2022 as to expert deposition dates and that in June, defendant had provided available dates. Defendant contends that plaintiff’s counsel refused to accept the dates provided by defense counsel and that plaintiff’s counsel has not provided an available date for Dr. Dahlgren’s deposition. Defendant asserts that it did not take the July 13 deposition off calendar of Dan Napier; rather, plaintiff proposed July 19 or July 26, and that defendant served notice for July 26. Defendant further contends that it provided dates in July for Dr. Andrew Saxon and Brian Daly’s depositions but that plaintiff “ignored those dates.” Defendant has provided availability of August 9 to August 19 for Dr. Andrew Saxon and August 10 and after for Daly. As to Robert Griswold, plaintiff was provided with July 11, but plaintiff chose not to depose on that date. Griswold is available August 15-17. Defendant also seeks a continuance to participate in a MSC.

The court finds that defendants have shown good cause for a short continuance of the trial date to complete expert depositions.

The motion is thus GRANTED to continue the trial date.

Moving defendant is ordered to give notice of ruling.



Case Number: ****7993 Hearing Date: May 25, 2022 Dept: M

(UPDATED 05/24/22)

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

MARHNAZ RAD, et al.,

Plaintiffs,

Case No.:

****7993

vs.

[Tentative] RULING

SALOME L. SHEK, et al.,

Defendants.

Hearing Date: May 25, 2022

Moving Parties: Defendant Real Choice Management, Inc.

Responding Party: Plaintiff Amir Rad

Motion to Compel Plaintiff Amir Rad’s Deposition Volume 2 and Produce Documents

The court considered the moving, opposition, and reply papers.

RULING

The motion is GRANTED. Plaintiff Amir Rad is ordered to appear for his deposition within seven days, either in person or remotely, as allowed under CCP 2025.310. The second deposition of plaintiff Amir Rad shall be solely on the subject of injuries he claims he has suffered are a result of his tenancy.

BACKGROUND

On October 2, 2017, Marhnaz Rad and Amir Rad filed a complaint against Salome L. Shek and Real Choice Management Inc. for (1) breach of implied warranty of habitability, (2) negligence, and (3) nuisance. Plaintiffs allege that they resided at the subject property at 30181 Via Rivera, Rancho Palos Verdes, from September 20, 2015 to April 2017. The following conditions existed at the property in the common areas and in plaintiffs’ residence: cockroach infestations and lack of insect control; rodent infestations, feces, and lack of rodent control; pollution from roach feces floating in the air; and bites from cockroaches and other insects; stoves and ovens that are inoperative; broken kitchen and bathroom cabinets; inoperable air conditioning; broken tiles and other flooring; toxic mold; inoperable smoke alarms; lack of sanitary plumbing; holes in ceilings and/or interior walls; water leaks; and inoperable garage opener. Around late December 2016 and early January 2017, plaintiffs informed defendants of elevated levels of mold and requested remediation. Defendants did not remedy these issues. On February 2, 2017, plaintiffs requested that defendants repair issues as alleged above. Defendants did not remedy these issues.

On February 3, 2022, the court denied defendants Salome Shek and Real Choice Management’s motion for summary adjudication.

Trial is set for June 22, 2022.

LEGAL AUTHORITY

CCP 2025.450(a) provides: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, . . , 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(b) provides, “A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

Compel 2nd deposition

CCP 2025.610 states: “(a) Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.

(b) Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken. . . .”

Compel production of documents at deposition

CCP 2025.480 states: “(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.

(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040. . . .

(i) If the court determines that the answer or production sought is subject to discovery, it shall order that . . . the production be made on the resumption of the deposition.”

DISCUSSION

Defendant Real Choice Management, Inc. requests an order compelling plaintiff Amir Rad to appear for a second deposition regarding “his new allegations and claims that have arisen after Plaintiff’s initial deposition on May 25, 2018” and plaintiff’s responses to discovery in 2018.

On April 11, 2022, defendant served plaintiff with a notice of deposition. On April 13, 2022, plaintiff served an objection that defendant was entitled to only one deposition. Defense counsel sent a meet and confer letter, and on April 19, 2022, plaintiff indicated that he would not appear at the noticed deposition.

Defendant argues that it has good cause for a second deposition and production of documents because plaintiff has withheld vital information and documents during the discovery process “creating a situation wherein [defendants] would have no idea of plaintiff’s current claims and allegations: personal injury due to mold exposure; health problems due to mold exposure; health problems due to exposure to and/or bites from cockroaches, rats, and other insects; medical treatment from Ocean Front Urgent Care; hand injury; and excessive loss of earnings claim.” Defendant contends, at plaintiff’s deposition on March 25, 2018, he did not testify as to any claim for personal injury, or current health problems relating to property, or reported any issues with cockroaches or rats, or any serious loss of earnings. Rather he testified that “at this point, no” he was not claiming any physical damages and that he was not continuing to have any health problems. Defendant argues that plaintiff then “took defendants on a 2-year wild goose chase” for records as to Ocean Front and then in July 2020, plaintiff served verified supplemental responses indicating that he had no change to his prior discovery responses, but had not revealed any hand injury or any issues due to health problems from insect bites, rats, or cockroaches, or any mention of Ocean Front Urgent. Then on November 18, 2021, plaintiff’s counsel sent photographs of plaintiff’s “bloody hand” and then on February 14, 2022, plaintiff served defendant with Ocean Front Urgent Care records, indicating that he treated with Ocean Front in October 2015.

In opposition, plaintiff argues that defendant has not shown good cause and that none of the exceptions under CCP 2025.610(c) apply. Plaintiff also contends that no new allegations and/or claims have arisen since after the 2018 deposition. He argues that his responses to discovery in 2018 were responsive in that as to Form Interrogatory No. 6.2, he answered as to identifying the injury and that he was not asked the cause of the injury. He also claims that he testified in 2018 as to the uninhabitable conditions and the medications he took and his claim for loss of earnings. He contends that defendants were aware of his hand injury and treatment with a doctor in 2018 and of his medical treatment from Ocean Front Urgent Care in July 2020. He asserts that defendants did not ask follow questions. Further, plaintiff states that he is willing to withdraw his hand injury claim if defendant agrees not to take his 2nd deposition.

In reply, defendant reiterates its argument that plaintiff’s responses in 2018 inaccurately or clearly failed to state or mention any hand injury, medical illness due to insect bites, cockroaches, or rats, or any mention of exposure to mold or medical treatment due to exposure and that he is now purportedly claiming such.

The court finds good cause as to a second deposition of plaintiff Amir Rad as to his injuries he claims are a result of his tenancy.

The motion is thus GRANTED.

Moving defendant is ordered to give notice of ruling.



Case Number: ****7993 Hearing Date: May 20, 2022 Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

MARHNAZ RAD, et al.,

Plaintiffs,

Case No.:

****7993

vs.

[Tentative] RULING

SALOME L. SHEK, et al.,

Defendants.

Hearing Date: May 20, 2022

Moving Parties: Defendant Real Choice Management, Inc.

Responding Party: Plaintiff Amir Rad

Motion to Compel Plaintiff Amir Rad’s Deposition Volume 2 and Produce Documents

The court considered the moving, opposition, and reply papers.

RULING

The motion is GRANTED. Plaintiff Amir Rad is ordered to appear for his deposition within seven days, either in person or remotely, as allowed under CCP 2025.310.

BACKGROUND

On October 2, 2017, Marhnaz Rad and Amir Rad filed a complaint against Salome L. Shek and Real Choice Management Inc. for (1) breach of implied warranty of habitability, (2) negligence, and (3) nuisance. Plaintiffs allege that they resided at the subject property at 30181 Via Rivera, Rancho Palos Verdes, from September 20, 2015 to April 2017. The following conditions existed at the property in the common areas and in plaintiffs’ residence: cockroach infestations and lack of insect control; rodent infestations, feces, and lack of rodent control; pollution from roach feces floating in the air; and bites from cockroaches and other insects; stoves and ovens that are inoperative; broken kitchen and bathroom cabinets; inoperable air conditioning; broken tiles and other flooring; toxic mold; inoperable smoke alarms; lack of sanitary plumbing; holes in ceilings and/or interior walls; water leaks; and inoperable garage opener. Around late December 2016 and early January 2017, plaintiffs informed defendants of elevated levels of mold and requested remediation. Defendants did not remedy these issues. On February 2, 2017, plaintiffs requested that defendants repair issues as alleged above. Defendants did not remedy these issues.

On February 3, 2022, the court denied defendants Salome Shek and Real Choice Management’s motion for summary adjudication.

Trial is set for June 22, 2022.

LEGAL AUTHORITY

CCP 2025.450(a) provides: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, . . , 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(b) provides, “A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

Compel 2nd deposition

CCP 2025.610 states: “(a) Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent.

(b) Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken. . . .”

Compel production of documents at deposition

CCP 2025.480 states: “(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.

(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040. . . .

(i) If the court determines that the answer or production sought is subject to discovery, it shall order that . . . the production be made on the resumption of the deposition.”

DISCUSSION

Defendant Real Choice Management, Inc. requests an order compelling plaintiff Amir Rad to appear for a second deposition regarding “his new allegations and claims that have arisen after Plaintiff’s initial deposition on May 25, 2018” and plaintiff’s responses to discovery in 2018.

On April 11, 2022, defendant served plaintiff with a notice of deposition. On April 13, 2022, plaintiff served an objection that defendant was entitled to only one deposition. Defense counsel sent a meet and confer letter, and on April 19, 2022, plaintiff indicated that he would not appear at the noticed deposition.

Defendant argues that it has good cause for a second deposition and production of documents because plaintiff has withheld vital information and documents during the discovery process “creating a situation wherein [defendants] would have no idea of plaintiff’s current claims and allegations: personal injury due to mold exposure; health problems due to mold exposure; health problems due to exposure to and/or bites from cockroaches, rats, and other insects; medical treatment from Ocean Front Urgent Care; hand injury; and excessive loss of earnings claim.” Defendant contends, at plaintiff’s deposition on March 25, 2018, he did not testify as to any claim for personal injury, or current health problems relating to property, or reported any issues with cockroaches or rats, or any serious loss of earnings. Rather he testified that “at this point, no” he was not claiming any physical damages and that he was not continuing to have any health problems. Defendant argues that plaintiff then “took defendants on a 2-year wild goose chase” for records as to Ocean Front and then in July 2020, plaintiff served verified supplemental responses indicating that he had no change to his prior discovery responses, but had not revealed any hand injury or any issues due to health problems from insect bites, rats, or cockroaches, or any mention of Ocean Front Urgent. Then on November 18, 2021, plaintiff’s counsel sent photographs of plaintiff’s “bloody hand” and then on February 14, 2022, plaintiff served defendant with Ocean Front Urgent Care records, indicating that he treated with Ocean Front in October 2015.

In opposition, plaintiff argues that defendant has not shown good cause and that none of the exceptions under CCP 2025.610(c) apply. Plaintiff also contends that no new allegations and/or claims have arisen since after the 2018 deposition. He argues that his responses to discovery in 2018 were responsive in that as to Form Interrogatory No. 6.2, he answered as to identifying the injury and that he was not asked the cause of the injury. He also claims that he testified in 2018 as to the uninhabitable conditions and the medications he took and his claim for loss of earnings. He contends that defendants were aware of his hand injury and treatment with a doctor in 2018 and of his medical treatment from Ocean Front Urgent Care in July 2020. He asserts that defendants did not ask follow questions. Further, plaintiff states that he is willing to withdraw his hand injury claim if defendant agrees not to take his 2nd deposition.

In reply, defendant reiterates its argument that plaintiff’s responses in 2018 inaccurately or clearly failed to state or mention any hand injury, medical illness due to insect bites, cockroaches, or rats, or any mention of exposure to mold or medical treatment due to exposure and that he is now purportedly claiming such.

The court finds good cause as to a second deposition of plaintiff Amir Rad as to his injuries he claims are a result of his tenancy.

The motion is thus GRANTED.

Moving defendant is ordered to give notice of ruling.



Case Number: ****7993 Hearing Date: February 3, 2022 Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

MARHNAZ RAD, et al.,

Plaintiffs,

Case No.:

****7993

vs.

[Tentative] RULING

SALOME L. SHEK, et al.,

Defendants.

Hearing Date: November 18, 2021

Moving Parties: Defendants Salome Shek and Real Choice Management, Inc.

Responding Party: Plaintiff Amir Rad

Motion for Summary Adjudication

The court considered the moving, opposition, and reply papers.

RULING

The motion for summary adjudication is DENIED as to the 1st and 2nd causes of action.

BACKGROUND

On October 2, 2017, Marhnaz Rad and Amir Rad filed a complaint against Salome L. Shek and Real Choice Management Inc. for (1) breach of implied warranty of habitability, (2) negligence, and (3) nuisance. Plaintiffs allege that they resided at the subject property at 30181 Via Rivera, Rancho Palos Verdes, from September 20, 2015 to April 2017. The following conditions existed at the property in the common areas and in plaintiffs’ residence: cockroach infestations and lack of insect control; rodent infestations, feces, and lack of rodent control; pollution from roach feces floating in the air; and bites from cockroaches and other insects; stoves and ovens that are inoperative; broken kitchen and bathroom cabinets; inoperable air conditioning; broken tiles and other flooring; toxic mold; inoperable smoke alarms; lack of sanitary plumbing; holes in ceilings and/or interior walls; water leaks; and inoperable garage opener. Around late December 2016 and early January 2017, plaintiffs informed defendants of elevated levels of mold and requested remediation. Defendants did not remedy these issues. On February 2, 2017, plaintiffs requested that defendants repair issues as alleged above. Defendants did not remedy these issues.

LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “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. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.” CCP 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Id. “’An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.’” Lyons v. Security Pacific National Bank (1995) 40 Cal. App. 4th 1001, 1014 (citation omitted).

DISCUSSION

Defendants Salome Shek and Real Choice Management Inc. request summary adjudication as to the 1st cause of action for breach of implied warranty of habitability and 2nd cause of action for negligence as to plaintiff Amir Rad on the ground that there is no triable issue of material fact and as a matter of law, they prevail.

In the complaint, plaintiffs allege that they resided at the property from September 20, 2015 to April 2017. Complaint, 11. On September 30, 2015, plaintiff Marhnaz Rad entered into a written lease agreement with defendants that was part written and part implied by law for the lase of the real property at 30181 Via Rivera, Rancho Palos Verdes. Attached to the complaint as Exh. A is the lease agreement. Plaintiff Amir Rad is a third party beneficiary to the agreement. Plaintiffs were tenants at the property. Id., 23. Civil Code 1941 and 1941.1 imposed a duty on defendants to maintain the property in a condition fit for human habitation and to repair all subsequent dilapidation thereof. Id., 24. Plaintiffs learned that as a result of water intrusion, a high quantity of mold was infiltrating into the property. The housing unit occupied by plaintiffs was infested with insects. Id., 25.

1st cause of action for breach of the implied warranty of habitability

“The elements of a claim to recover damages based on a breach of the implied warranty of habitability are: (1) the existence of a material defective condition affecting the premises’ habitability, (2) notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition, (3) the landlord was given a reasonable time to correct the deficiency, and (4) resulting damages.” Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal. App. 4th 1281, 1297.

“The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, . . .” Civil Code 1941.

Under Civil Code 1942, “(a) If within a reasonable time after written or oral notice to the landlord or his agent . . . of dilapidations rending the premises untenantable which the landlord ought to repair, the landlord neglects to do so, the tenant may repair the same himself . . . .”

Defendants contend that there was no landlord/tenant relationship between defendants and plaintiff Amir Rad as he was a “non-tenant” as he did not enter the lease with defendants. The lease defines the resident tenant as “Mahrnaz K. Rad.” Further, defendants contend, the lease was rented for the exclusive occupation of Mahrnaz Rad, and written approval was required for any person staying over 15 days: “The property will be occupied exclusively by the resident(s) listed above. We must approve unauthorized occupants living in the premises for longer than 15 consecutive days.” The lease only allowed the residence to be lived in by the identified tenant: “You shall not replace a resident, assign the lease, or sublet the property or any part thereof without our written consent. . . .” See Complaint, Exh. A Lease.

In opposition, plaintiff Amir Rad argues that plaintiffs lawfully resided at the subject property, and he was an authorized tenant because plaintiffs obtained defendants’ approval of Amir’s tenancy through a representative of Real Choice. Plaintiff asserts that before they moved into the property, plaintiffs informed Julia Shi from defendant Real Choice that Amir Rad would be living in the property and would be paying rent. They assert that they asked Shi if they should amend the lease agreement to include the name of plaintiff Amir Rad to show he was a co-resident or co-tenant of the property. Shi told them that Amir Rad’s name did not have to be included in the lease agreement since they were already aware that he would also be living in the property as another resident or tenant. Plaintiff argues that defendants have not set forth any statute or authority requiring that a tenant or lawful occupant be an actual signatory to a written lease in order to be considered a tenant.

Further, plaintiff contends, plaintiff Marhnaz did not assign or sublet the property to plaintiff. Plaintiff Amir did not replace Marhnaz as the resident. Plaintiffs relied on her representations. Further, defendants were aware that Amir lived at the property because Amir complained to defendants at the walkthrough about the smell, and plaintiffs’ attorney on behalf of both plaintiffs wrote a letter to defendant. Also, during the time he lived at the property, he received notices of intent to enter dwelling unit from defendants that were addressed to “all residents.” Amir Rad communicated with Shi as to wanting to be present in the premises when the mold remediation or repair was going to be done and he opened the door for Shi and the maintenance men several times. See Amir Rad decl., Marhnaz Rad decl. Moreover, plaintiff argues that he was a third-party beneficiary of the lease agreement because defendants informed him that he would be considered a tenant without having to amend the lease.

In reply, defendants argue that plaintiff Amir was a guest/invitee of his sister, and thus, there was no implied warranty of habitability. Defendants also argue that plaintiff has not shown that he was a third-party beneficiary of the lease agreement, which he alleged. The court notes that he also alleged he was a tenant. Defendants further argue that parol evidence rule prevents plaintiff from introducing alleged verbal communications to amend the lease.

The court finds that plaintiff provided sufficient evidence to raise a triable issue as to whether Amir Rad was a tenant and/or occupant, including that defendants were aware he was going to reside at the property and that he did reside there; he paid rent; and he communicated with Shi while living at the property. Despite what the lease agreement states, plaintiff presents evidence to raise a triable issue as to whether defendants consented, authorized and/or permitted plaintiff to reside/occupy the property although his name was not on the lease. As to the lease provision that defendants are to approve any persons living at the property, there is a triable issue as to whether they did approve because they were aware that he was present at the property.

The motion is thus DENIED.

2nd cause of action for negligence

Plaintiffs allege that by owing the property, by entering into the agreement, by otherwise assuming a landlord-tenant relationship with plaintiffs, and by managing the property, defendants owed plaintiffs the duty to exercise reasonable care in defendants’ ownership, management, and control of the property. Complaint, 32.

Defendants argue that plaintiff cannot establish a claim for negligence premised on a duty “rooted in the Landlord/Tenant relationship,” or imposed under statutory law and the lease.

See arguments above under the 1st cause of action.

The court finds that plaintiff provided sufficient evidence to raise a triable issue as to whether Amir Rad was a tenant and/or occupant.

The motion is DENIED.

Plaintiffs are ordered to give notice of the ruling.



Case Number: ****7993 Hearing Date: January 6, 2022 Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

MARHNAZ RAD, et al.,

Plaintiffs,

Case No.:

****7993

vs.

[Tentative] RULING

SALOME L. SHEK, et al.,

Defendants.

Hearing Date: January 6, 2022

Moving Parties: Defendant Salome Shek

Responding Party: Plaintiff Amir Rad

Motion for Reconsideration of Order to Deem Facts Admitted and CCP 473 Relief

The court considered the moving, opposition, and reply papers.

RULING

The motion for reconsideration is GRANTED. The court reconsiders the November 10, 2021 ruling, and modifies the ruling from GRANT to CONTINUE to to allow defendant Shek to respond to plaintiff Amir Rad’s Request for Admissions, Set Two, within ten days. Counsel are to meet and confer as to whether defendant needs a courtesy copy of the RFAs, Set Two.

BACKGROUND

On October 2, 2017, Marhnaz Rad and Amir Rad filed a complaint against Salome L. Shek and Real Choice Management Inc. for (1) breach of implied warranty of habitability, (2) negligence, and (3) nuisance. Plaintiffs allege that they resided at the subject property at 30181 Via Rivera, Rancho Palos Verdes, from September 20, 2015 to April 2017. The following conditions existed at the property in the common areas and in plaintiffs’ residence: cockroach infestations and lack of insect control; rodent infestations, feces, and lack of rodent control; pollution from roach feces floating in the air; and bites from cockroaches and other insects; stoves and ovens that are inoperative; broken kitchen and bathroom cabinets; inoperable air conditioning; broken tiles and other flooring; toxic mold; inoperable smoke alarms; lack of sanitary plumbing; holes in ceilings and/or interior walls; water leaks; and inoperable garage opener. Around late December 2016 and early January 2017, plaintiffs informed defendants of elevated levels of mold and requested remediation. Defendants did not remedy these issues. On February 2, 2017, plaintiffs requested that defendants repair issues as alleged above. Defendants did not remedy these issues.

On November 10, 2021, the court granted plaintiff Amir Rad’s motion to deem the truth of facts in plaintiff Amir Rad’s request for admissions, set 2 admitted against defendant Salome L. Shek.

On November 12, 2021, plaintiff Marhnaz Rad dismissed the complaint as to plaintiff against all defendants.

LEGAL AUTHORITY

Under CCP 1008(a), “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall 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.”

As stated by the court in Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, CCP 1008 governs reconsideration of court orders whether initiated by a party or the court itself. “It is the exclusive means for modifying, amending or revoking an order. That limitation is expressly jurisdictional.” Id. at 1499.

CCP 128(a) states, “Every court shall have the power to do all of the following: . . . (8) To amend and control its process and orders so as to make them conform to law and justice. . . .”

DISCUSSION

Defendant Salome L. Shek requests that the court reconsider its order dated November 10, 2021, which granted plaintiff Amir Rad’s motion to deem admitted the truth of facts in plaintiff’s request for admission, set 2 against defendant Shek.

Defendant contends that counsel had not been served with the motion to deem facts admitted and had not opposed the motion because counsel was not aware of the filed motion or hearing. Defendant also asserts that she had responded to two sets of requests for admissions and was not aware of a third set. She also contends that there was a written agreement with plaintiffs’ counsel that the only RFAs pending had been received and that the motion to deem facts admitted had been withdrawn as of October 14, 2021. See Susan Caldwell decl.

In opposition, plaintiff argues that defendant has not met her burden under CCP 1008 because the discovery requests and motion were properly served and defendant failed to respond and that defense counsel’s explanation for not responding is not credible.

On October 19, 2021, plaintiff Amir Rad filed a motion to deem the truth of facts in plaintiff Amir Rad’s request for admissions, set two, admitted, which was the subject of the ruling on November 10. Attached to plaintiff’s counsel’s declaration in support of the motion was a “Request for Admission to Defendant Salome L. Shek, Set Two” dated August 2, 2021. The request consisted of nos. 54-85. The proof of service indicates that the document was served by email to defense counsel on August 2, 2021.

The court sets forth the relevant communications as provided by counsel:

On August 2, 2021 (at 5:27 p.m.), plaintiff’s counsel’s office sends an email to defense counsel stating, “Please see the attached.” Attached to that email was a Request for Admission, Set One [consisting of Nos. 1-32] and dated August 2, 2021. The proof of service indicates that it was served on August 2, 2021. Then in another email dated August 2 (at 6:22 p.m.), plaintiff’s counsel states, “Please disregard the attachments to my prior email below.” Then on August 2 (at 6:28 p.m.), plaintiff’s counsel’s office sends an email stating, “Please see the attached,” and attaching Amir Rad’s Request for Admissions, Set Two [consisting of nos. 54-85].

Then in an email dated August 3, 2021, plaintiff’s counsel states that he was writing regarding Amir Rad’s request for admissions, set one [consisting of Nos. 1-53], dated December 21, 2018, and served on defendant Shek on that date, asserting that responses were “grossly overdue” and requesting responses by August 10.

In an email dated August 25, 2021, Shek’s defense counsel sent an email to plaintiff’s counsel stating “Can you send the discovery FI/RFA that you say you served to Mrs. Shek? We don’t have a copy. Can we agree that motions will be withdrawn if I get you responses by a date-certain? I would appreciate the courtesy of this since we don’t have a record and you moved to compel in between . . . .”

In an email dated October 5, 2021, plaintiff’s counsel states that “I am writing to meet and confer on Defendants’ outstanding responses to Plaintiff Amir Rad’s Second Set of Requests for Admissions . . . that were e-served on August 2, 2021,” and requesting responses by October 12.

On October 12, 2021, defendant Shek served responses to Amir Rad’s Request for Admissions, Set One. In an email dated October 14, Shek’s counsel states “we are clearly responding to Amir’s RFA . . . . The verification is doc-u-signed for the responses based upon title of the document (and for the only outstanding RFA . . . ) – so there is no question these response[s] are for the set propounded by Amir (with the 53 requests). . . . Please advise if the Motion will be withdrawn.” On October 14, plaintiff’s counsel states that the motion to deem facts admitted re Amir Rad’s First Set of RFAs against Shek, “is now off-calendar.”

On November 15, 2021, in an email to plaintiff’s counsel, Shek’s counsel states, “How could you bring this when we negotiated agreement on this – and when we didn’t even get served?”

Shek’s counsel states in her declaration that she has no record of an email for Amir Rad’s Request for Admissions, Set Two being served on August 2. She also states that she did not receive the motion to deem admitted the facts in the Request for Admissions, Set Two. In an email dated November 23, 2021 to plaintiff’s counsel, she states, “At a minimum, it was very confusing to think a motion was pending or being filed at the same time a motion was being withdrawn.”

As reflected above, the procedural history is lengthy and somewhat confusing. The court finds that defendant Shek has met her burden under CCP 1008 in that defense counsel has shown that she had not received Amir Rad’s Request for Admissions, Set Two, or at least was not aware that she had received them and reasonably believed that defendant had properly and timely responded to the outstanding discovery. Further, as to the motion, defense counsel presents sufficient evidence that she was unaware of the motion as to the RFAs, Set Two, or was reasonably confused that there were two motions, and that one had been withdrawn.

Accordingly, the motion is GRANTED. The court reconsiders the November 10, 2021 ruling granting Amir Rad’s motion to deem admitted the truth of the matters in the requests for admission, set two directed to defendant Shek. The court modifies the ruling from a grant to a continue to allow defendant to respond.

Defendant Shek is ordered to give notice of ruling.



b'

Case Number: ****7993 Hearing Date: November 18, 2021 Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

MARHNAZ RAD, et al.,

Plaintiffs,

Case No.:

****7993

vs.

[Tentative] RULING

SALOME L. SHEK, et al.,

Defendants.

Hearing Date: November 18, 2021

Moving Parties: Defendants Salome Shek and Real Choice Management, Inc.

Responding Party: Plaintiff Amir Rad

Motion for Summary Adjudication

The court considered the moving, opposition, and reply papers.

RULING

The motion for summary adjudication is DENIED as to the 1st and 2nd causes of action.

BACKGROUND

On October 2, 2017, Marhnaz Rad and Amir Rad filed a complaint against Salome L. Shek and Real Choice Management Inc. for (1) breach of implied warranty of habitability, (2) negligence, and (3) nuisance. Plaintiffs allege that they resided at the subject property at 30181 Via Rivera, Rancho Palos Verdes, from September 20, 2015 to April 2017. The following conditions existed at the property in the common areas and in plaintiffs’ residence: cockroach infestations and lack of insect control; rodent infestations, feces, and lack of rodent control; pollution from roach feces floating in the air; and bites from cockroaches and other insects; stoves and ovens that are inoperative; broken kitchen and bathroom cabinets; inoperable air conditioning; broken tiles and other flooring; toxic mold; inoperable smoke alarms; lack of sanitary plumbing; holes in ceilings and/or interior walls; water leaks; and inoperable garage opener. Around late December 2016 and early January 2017, plaintiffs informed defendants of elevated levels of mold and requested remediation. Defendants did not remedy these issues. On February 2, 2017, plaintiffs requested that defendants repair issues as alleged above. Defendants did not remedy these issues.

LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “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. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.” CCP ; 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP ; 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Id. “’An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.’” Lyons v. Security Pacific National Bank (1995) 40 Cal. App. 4th 1001, 1014 (citation omitted).

DISCUSSION

Defendants Salome Shek and Real Choice Management Inc. request summary adjudication as to the 1st cause of action for breach of implied warranty of habitability and 2nd cause of action for negligence as to plaintiff Amir Rad on the ground that there is no triable issue of material fact and as a matter of law, they prevail.

In the complaint, plaintiffs allege that they resided at the property from September 20, 2015 to April 2017. Complaint, ¶11. On September 30, 2015, plaintiff Marhnaz Rad entered into a written lease agreement with defendants that was part written and part implied by law for the lase of the real property at 30181 Via Rivera, Rancho Palos Verdes. Attached to the complaint as Exh. A is the lease agreement. Plaintiff Amir Rad is a third party beneficiary to the agreement. Plaintiffs were tenants at the property. Id., ¶23. Civil Code ;;1941 and 1941.1 imposed a duty on defendants to maintain the property in a condition fit for human habitation and to repair all subsequent dilapidation thereof. Id., ¶24. Plaintiffs learned that as a result of water intrusion, a high quantity of mold was infiltrating into the property. The housing unit occupied by plaintiffs was infested with insects. Id., ¶25.

1st cause of action for breach of the implied warranty of habitability

“The elements of a claim to recover damages based on a breach of the implied warranty of habitability are: (1) the existence of a material defective condition affecting the premises’ habitability, (2) notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition, (3) the landlord was given a reasonable time to correct the deficiency, and (4) resulting damages.” Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal. App. 4th 1281, 1297.

“The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, . . .” Civil Code ;1941.

Under Civil Code ;1942, “(a) If within a reasonable time after written or oral notice to the landlord or his agent . . . of dilapidations rending the premises untenantable which the landlord ought to repair, the landlord neglects to do so, the tenant may repair the same himself . . . .”

Defendants contend that there was no landlord/tenant relationship between defendants and plaintiff Amir Rad as he was a “non-tenant” as he did not enter the lease with defendants. The lease defines the resident tenant as “Mahrnaz K. Rad.” Further, defendants contend, the lease was rented for the exclusive occupation of Mahrnaz Rad, and written approval was required for any person staying over 15 days: “The property will be occupied exclusively by the resident(s) listed above. We must approve unauthorized occupants living in the premises for longer than 15 consecutive days.” The lease only allowed the residence to be lived in by the identified tenant: “You shall not replace a resident, assign the lease, or sublet the property or any part thereof without our written consent. . . .” See Complaint, Exh. A Lease.

In opposition, plaintiff Amir Rad argues that plaintiffs lawfully resided at the subject property, and he was an authorized tenant because plaintiffs obtained defendants’ approval of Amir’s tenancy through a representative of Real Choice. Plaintiff asserts that before they moved into the property, plaintiffs informed Julia Shi from defendant Real Choice that Amir Rad would be living in the property and would be paying rent. They assert that they asked Shi if they should amend the lease agreement to include the name of plaintiff Amir Rad to show he was a co-resident or co-tenant of the property. Shi told them that Amir Rad’s name did not have to be included in the lease agreement since they were already aware that he would also be living in the property as another resident or tenant. Plaintiff argues that defendants have not set forth any statute or authority requiring that a tenant or lawful occupant be an actual signatory to a written lease in order to be considered a tenant.

Further, plaintiff contends, plaintiff Marhnaz did not assign or sublet the property to plaintiff. Plaintiff Amir did not replace Marhnaz as the resident. Plaintiffs relied on her representations. Further, defendants were aware that Amir lived at the property because Amir complained to defendants at the walkthrough about the smell, and plaintiffs’ attorney on behalf of both plaintiffs wrote a letter to defendant. Also, during the time he lived at the property, he received notices of intent to enter dwelling unit from defendants that were addressed to “all residents.” Amir Rad communicated with Shi as to wanting to be present in the premises when the mold remediation or repair was going to be done and he opened the door for Shi and the maintenance men several times. See Amir Rad decl., Marhnaz Rad decl. Moreover, plaintiff argues that he was a third-party beneficiary of the lease agreement because defendants informed him that he would be considered a tenant without having to amend the lease.

In reply, defendants argue that plaintiff Amir was a guest/invitee of his sister, and thus, there was no implied warranty of habitability. Defendants also argue that plaintiff has not shown that he was a third-party beneficiary of the lease agreement, which he alleged. The court notes that he also alleged he was a tenant. Defendants further argue that parol evidence rule prevents plaintiff from introducing alleged verbal communications to amend the lease.

The court finds that plaintiff provided sufficient evidence to raise a triable issue as to whether Amir Rad was a tenant and/or occupant, including that defendants were aware he was going to reside at the property and that he did reside there; he paid rent; and he communicated with Shi while living at the property. Despite what the lease agreement states, plaintiff presents evidence to raise a triable issue as to whether defendants consented, authorized and/or permitted plaintiff to reside/occupy the property although his name was not on the lease. As to the lease provision that defendants are to approve any persons living at the property, there is a triable issue as to whether they did approve because they were aware that he was present at the property.

The motion is thus DENIED.

2nd cause of action for negligence

Plaintiffs allege that by owing the property, by entering into the agreement, by otherwise assuming a landlord-tenant relationship with plaintiffs, and by managing the property, defendants owed plaintiffs the duty to exercise reasonable care in defendants’ ownership, management, and control of the property. Complaint, ¶32.

Defendants argue that plaintiff cannot establish a claim for negligence premised on a duty “rooted in the Landlord/Tenant relationship,” or imposed under statutory law and the lease.

See arguments above under the 1st cause of action.

The court finds that plaintiff provided sufficient evidence to raise a triable issue as to whether Amir Rad was a tenant and/or occupant.

The motion is DENIED.

Plaintiffs are ordered to give notice of the ruling.

'


b'

Case Number: ****7993 Hearing Date: November 10, 2021 Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

MARHNAZ RAD, et al.,

Plaintiffs,

Case No.:

****7993

vs.

[Tentative] RULING

SALOME L. SHEK, et al.,

Defendants.

Hearing Date: November 10, 2021

Moving Parties: Plaintiff Amir Rad

Responding Party: None

Motion to Deem the Truth of Facts in Plaintiff’s Request for Admission, Set 2 Admitted Against Defendant Salome L. Shek

The court considered the moving papers. No opposition was filed.

RULING

The motion is GRANTED. The court deems admitted the truth of any matters specified in plaintiff Amir Rad’s Requests for Admission, Set Two, against defendant Salome L. Shek.

Defendant is ordered to pay sanctions to plaintiff in the amount of $460 within 30 days.

BACKGROUND

On October 2, 2017, Marhnaz Rad and Amir Rad filed a complaint against Salome L. Shek and Real Choice Management Inc. for (1) breach of implied warranty of habitability, (2) negligence, and (3) nuisance. Plaintiffs allege that they resided at the subject property at 30181 Via Rivera, Rancho Palos Verdes, from September 20, 2015 to April 2017. The following conditions existed at the property in the common areas and in plaintiffs’ residence: cockroach infestations and lack of insect control; rodent infestations, feces, and lack of rodent control; pollution from roach feces floating in the air; and bites from cockroaches and other insects; stoves and ovens that are inoperative; broken kitchen and bathroom cabinets; inoperable air conditioning; broken tiles and other flooring; toxic mold; inoperable smoke alarms; lack of sanitary plumbing; holes in ceilings and/or interior walls; water leaks; and inoperable garage opener. Around late December 2016 and early January 2017, plaintiffs informed defendants of elevated levels of mold and requested remediation. Defendants did not remedy these issues. On February 2, 2017, plaintiffs requested that defendants repair issues as alleged above. Defendants did not remedy these issues.

LEGAL AUTHORITY

Pursuant to CCP ;2033.280(b), a party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010). “Failure to timely respond to RFA does not result in automatic admissions. Rather, the propounder of the RFA must ‘move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction’ under ;2023.010 et seq.” Civ. Proc. Before Trial, 8:1370, citing CCP ; 2033.280(b). The court “shall” grant the motion to deem RFA admitted, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” CCP ;2033.280(c).

DISCUSSION

Plaintiff Amir Rad requests that the court deem admitted the truth of all matters specified in plaintiff’s Requests for Admission, Set 2, served on August 2, 2021 to defendant Salome L. Shek. Responses were due by September 3, 2021. Defendant failed to serve responses, and on October 5, 2021, plaintiff’s counsel sent a meet and confer email to defense counsel requesting responses without objections by October 12. To date, plaintiff’s counsel has not received responses.

The court finds that the requests were properly served, and defendant failed to serve responses. The motion is therefore GRANTED.

Sanctions

Under CCP ; 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.” Under CCP ; 2023.010, an example of the misuse of the discovery process is “(d) Failing to respond or to submit to an authorized method of discovery.”

It is mandatory that the court impose a monetary sanction on the party or attorney whose failure to serve a timely response to requests for admission necessitated a motion to deem them admitted. CCP ; 2033.280(c).

Cal. Rules of Court, Rule 3.1348(a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Plaintiff requests sanctions against defendant in the amount of $1,460. The court finds that $460 ($400/hr. x 1 hrs. plus $60 in filing fees) is a reasonable amount of attorney’s fees and costs to be awarded against defendant.

Plaintiff is ordered to give notice of this ruling.

'


b'

Case Number: ****7993 Hearing Date: November 9, 2021 Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

MARHNAZ RAD, et al.,

Plaintiffs,

Case No.:

****7993

vs.

[Tentative] RULING

SALOME L. SHEK, et al.,

Defendants.

Hearing Date: November 10, 2021

Moving Parties: Plaintiff Amir Rad

Responding Party: None

Motion to Deem the Truth of Facts in Plaintiff’s Request for Admission, Set 2 Admitted Against Defendant Salome L. Shek

The court considered the moving papers. No opposition was filed.

RULING

The motion is GRANTED. The court deems admitted the truth of any matters specified in plaintiff Amir Rad’s Requests for Admission, Set Two, against defendant Salome L. Shek.

Defendant is ordered to pay sanctions to plaintiff in the amount of $460 within 30 days.

BACKGROUND

On October 2, 2017, Marhnaz Rad and Amir Rad filed a complaint against Salome L. Shek and Real Choice Management Inc. for (1) breach of implied warranty of habitability, (2) negligence, and (3) nuisance. Plaintiffs allege that they resided at the subject property at 30181 Via Rivera, Rancho Palos Verdes, from September 20, 2015 to April 2017. The following conditions existed at the property in the common areas and in plaintiffs’ residence: cockroach infestations and lack of insect control; rodent infestations, feces, and lack of rodent control; pollution from roach feces floating in the air; and bites from cockroaches and other insects; stoves and ovens that are inoperative; broken kitchen and bathroom cabinets; inoperable air conditioning; broken tiles and other flooring; toxic mold; inoperable smoke alarms; lack of sanitary plumbing; holes in ceilings and/or interior walls; water leaks; and inoperable garage opener. Around late December 2016 and early January 2017, plaintiffs informed defendants of elevated levels of mold and requested remediation. Defendants did not remedy these issues. On February 2, 2017, plaintiffs requested that defendants repair issues as alleged above. Defendants did not remedy these issues.

LEGAL AUTHORITY

Pursuant to CCP ;2033.280(b), a party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010). “Failure to timely respond to RFA does not result in automatic admissions. Rather, the propounder of the RFA must ‘move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction’ under ;2023.010 et seq.” Civ. Proc. Before Trial, 8:1370, citing CCP ; 2033.280(b). The court “shall” grant the motion to deem RFA admitted, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” CCP ;2033.280(c).

DISCUSSION

Plaintiff Amir Rad requests that the court deem admitted the truth of all matters specified in plaintiff’s Requests for Admission, Set 2, served on August 2, 2021 to defendant Salome L. Shek. Responses were due by September 3, 2021. Defendant failed to serve responses, and on October 5, 2021, plaintiff’s counsel sent a meet and confer email to defense counsel requesting responses without objections by October 12. To date, plaintiff’s counsel has not received responses.

The court finds that the requests were properly served, and defendant failed to serve responses. The motion is therefore GRANTED.

Sanctions

Under CCP ; 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.” Under CCP ; 2023.010, an example of the misuse of the discovery process is “(d) Failing to respond or to submit to an authorized method of discovery.”

It is mandatory that the court impose a monetary sanction on the party or attorney whose failure to serve a timely response to requests for admission necessitated a motion to deem them admitted. CCP ; 2033.280(c).

Cal. Rules of Court, Rule 3.1348(a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Plaintiff requests sanctions against defendant in the amount of $1,460. The court finds that $460 ($400/hr. x 1 hrs. plus $60 in filing fees) is a reasonable amount of attorney’s fees and costs to be awarded against defendant.

Plaintiff is ordered to give notice of this ruling.

'


b'

Case Number: ****7993 Hearing Date: September 21, 2021 Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

MARHNAZ RAD, et al.,

Plaintiffs,

Case No.:

****7993

vs.

[Tentative] RULING

SALOME L. SHEK, et al.,

Defendants.

Hearing Date: September 21, 2021

Moving Parties: Plaintiff Amir Rad

Responding Party: None

(1) Motion to Deem the Truth of Facts in Plaintiff’s Request for Admission, Set 1 Admitted Against Defendant Salome L. Shek

(2) Motion to Deem the Truth of Facts in Plaintiff’s Request for Admission, Set 1 Admitted Against Defendant Real Choice Management Inc.

The court considered the moving papers. No opposition was filed.

RULING

The motions are GRANTED. The court deems admitted the truth of any matters specified in plaintiff Amir Rad’s Requests for Admission, Set One, against defendants Salome L. Shek and Real Choice Management Inc.

Each defendant is ordered to pay sanctions to plaintiff in the amount of $460 within 30 days.

BACKGROUND

On October 2, 2017, Marhnaz Rad and Amir Rad filed a complaint against Salome L. Shek and Real Choice Management Inc. for (1) breach of implied warranty of habitability, (2) negligence, and (3) nuisance. Plaintiffs allege that they resided at the subject property at 30181 Via Rivera, Rancho Palos Verdes, from September 20, 2015 to April 2017. The following conditions existed at the property in the common areas and in plaintiffs’ residence: cockroach infestations and lack of insect control; rodent infestations, feces, and lack of rodent control; pollution from roach feces floating in the air; and bites from cockroaches and other insects; stoves and ovens that are inoperative; broken kitchen and bathroom cabinets; inoperable air conditioning; broken tiles and other flooring; toxic mold; inoperable smoke alarms; lack of sanitary plumbing; holes in ceilings and/or interior walls; water leaks; and inoperable garage opener. Around late December 2016 and early January 2017, plaintiffs informed defendants of elevated levels of mold and requested remediation. Defendants did not remedy these issues. On February 2, 2017, plaintiffs requested that defendants repair issues as alleged above. Defendants did not remedy these issues.

LEGAL AUTHORITY

Pursuant to CCP ;2033.280(b), a party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010). “Failure to timely respond to RFA does not result in automatic admissions. Rather, the propounder of the RFA must ‘move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction’ under ;2023.010 et seq.” Civ. Proc. Before Trial, 8:1370, citing CCP ; 2033.280(b). The court “shall” grant the motion to deem RFA admitted, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” CCP ;2033.280(c).

DISCUSSION

Plaintiff Amir Rad requests that the court deem admitted the truth of all matters specified in plaintiff’s Requests for Admission, Set 1, served on December 21, 2018 to defendants Salome L. Shek and Real Choice Management. Responses were due by January 25, 2019. Defendants failed to serve responses, and on August 3, 2021, plaintiff’s counsel sent defense counsel a meet and confer requesting responses without objections by August 10, 2021. To date, plaintiff’s counsel has not received responses.

The court finds that the requests were properly served, and defendants failed to serve responses. The motions are therefore GRANTED.

Sanctions

Under CCP ; 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.” Under CCP ; 2023.010, an example of the misuse of the discovery process is “(d) Failing to respond or to submit to an authorized method of discovery.”

It is mandatory that the court impose a monetary sanction on the party or attorney whose failure to serve a timely response to requests for admission necessitated a motion to deem them admitted. CCP ; 2033.280(c).

Cal. Rules of Court, Rule 3.1348(a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Plaintiff requests sanctions against each defendant in the amount of $1,320. The court finds that $460 ($400/hr. x 1 hrs. plus $60 in filing fees) is a reasonable amount of attorney’s fees and costs to be awarded against each defendant.

Plaintiff is ordered to give notice of this ruling.

'


Case Number: ****7993    Hearing Date: September 16, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

MARHNAZ RAD, et al.,

Plaintiffs,

Case No.:

****7993

vs.

[Tentative] RULING

SALOME L. SHEK, et al.,

Defendants.

Hearing Date: September 16, 2020

Moving Parties: Plaintiff Marhnaz Rad

Responding Party: Defendant Salome L. Shek

(1) Motion to Compel Defendant Shek’s Responses to Form Interrogatories, Set 1

(2) Motion to Compel Defendant Shek’s Responses to Special Interrogatories, Set 1

(3) Motion to Compel Defendant Shek’s Responses to Demand for Production of Documents, Set 1

(4) Motion to Deem the Truth of Facts in Plaintiff’s Request for Admission, Set 1 Admitted

(5) Motion to Compel Deposition of Defendant Shek

The court considered the moving, opposition, reply, supplemental opposition, and supplemental reply papers.

RULING

The motions to compel responses to form interrogatories, special interrogatories, demand for production of documents, and to deem matters admitted in request for admission are CONTINUED to September 30, 2020, at 8:30 a.m. to allow defendant to re-serve her discovery responses dated January 2019 and verifications, within ten days. The motions will go off calendar upon proof that the responses and verifications were served. The requests for sanctions are DENIED.

The motion to compel defendant’s deposition is GRANTED. Defendant is ordered to appear by videoconference within 20 days.

BACKGROUND

On October 2, 2017, Marhnaz Rad and Amir Rad filed a complaint against Salome L. Shek and Real Choice Management Inc. for (1) breach of implied warranty of habitability, (2) negligence, and (3) nuisance. Plaintiffs allege that they resided at the subject property at 30181 Via Rivera, Rancho Palos Verdes, from September 20, 2015 to April 2017. The following conditions existed at the property in the common areas and in plaintiffs’ residence: cockroach infestations and lack of insect control; rodent infestations, feces, and lack of rodent control; pollution from roach feces floating in the air; and bites from cockroaches and other insects; stoves and ovens that are inoperative; broken kitchen and bathroom cabinets; inoperable air conditioning; broken tiles and other flooring; toxic mold; inoperable smoke alarms; lack of sanitary plumbing; holes in ceilings and/or interior walls; water leaks; and inoperable garage opener. Around late December 2016 and early January 2017, plaintiffs informed defendants of elevated levels of mold and requested remediation. Defendants did not remedy these issues. On February 2, 2017, plaintiffs requested that defendants repair issues as alleged above. Defendants did not remedy these issues.

LEGAL AUTHORITY

Interrogatories

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. CCP ;2030.290(b). The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906.

Request for Production of Documents

Where there has been no timely response to a CCP ;2031.010 demand, the demanding party must seek an order compelling a response. CCP ;2031.300. Failure to timely respond waives all objections, including privilege and work product. So, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion. Where the motion seeks only a response to the inspection demand, no showing of "good cause" is required. Weil & Brown, Civil Procedure Before Trial, 8:1487.

Request for Admissions

Pursuant to CCP ;2033.280(b), a party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010). “Failure to timely respond to RFA does not result in automatic admissions. Rather, the propounder of the RFA must ‘move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction’ under ;2023.010 et seq.” Civ. Proc. Before Trial, 8:1370, citing CCP ; 2033.280(b). The court “shall” grant the motion to deem RFA admitted, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” CCP ;2033.280(c).

Depositions

Under CCP ;2025.010, “Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.”

Under CCP ;2025.250, “(a) Unless the court orders otherwise under Section 2025.260, the deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent’s residence, or within the county where the action is pending and within 150 miles of the deponent’s residence.”

Under CCP ;2027.010, “(a) Any party may obtain discovery by taking an oral deposition, as described in Section 2025.010, in a foreign nation. . . .”

DISCUSSION

Plaintiff Marhnaz Rad requests that the court compel defendants to respond to their initial sets of form interrogatories, special interrogatories, and demand for production of documents, and to deem admitted the truth of the matters in the request for admissions.

Plaintiff also request that the court compel defendant Shek to appear for deposition.

Plaintiff contends that she served form interrogatories and demand for production of documents on November 19, 2018. Responses were due by December 24, 2018. On December 27, 2018, defense counsel requested an extension to respond to January 18, 2019. Plaintiffs assert that plaintiffs’ counsel did not receive any responses. On December 21, 2018, plaintiff served her initial special interrogatories and request for admission on defendant. Responses were due by January 25, 2019. None were received.

Plaintiff further contends that on May 16, 2019, she served a Notice of Deposition of defendant Shek with documents requests for a deposition to take place on May 30, 2019, in Santa Clarita, CA. Plaintiff contends that defendant did not serve any written objections. She did not appear for deposition.

On August 22 and 23, 2019, plaintiffs’ counsel’s office sent meet and confer letters via email to defense counsel but did not receive a response. Plaintiff asserts that as of the date of filing the motions on September 5, 2019, plaintiffs’ counsel had not received responses.

The hearing was originally set for September 27, 2019, and apparently continued to October 22, 2019. On October 18, 2019, the case was transferred from the Personal Injury Hub to Torrance Courthouse on October 18, 2019. Although purportedly instructed to do so, plaintiff did not reschedule the motions in Torrance. Rather, almost ten months later, on August 13, 2020, plaintiff served notices of continued hearing for plaintiffs’ motions to the herein date.

In oppositions (filed on September 17, 2019), defendant contends that she served discovery responses on January 23, 2019, with verifications to follow. See Susan Caldwell decls., Exh 1. Defendant argues that plaintiffs’ counsel failed to properly meet and confer. With respect to the August 22, 2019 meet and conferletter, plaintiffs’ counsel had requested a response within three business days. Defense counsel was in trial and responded on August 30, 2019, asking what discovery issues remained. Defendant asserts that plaintiffs’ counsel never responded. On September 11, 2019, defense counsel requested that plaintiffs’ counsel meet and confer regarding outstanding discovery issues, reiterating that responses had been served.

With respect to the deposition, defendant contends that she objected to the deposition notice. She asserts that on May 29, 2019, defense counsel confirmed to all parties that the deposition would not be going forward based on her objections. She lives in Hong Kong, China and is not a resident of the U.S. She reiterates that she has no first-hand knowledge about plaintiffs’ property. She argues that plaintiffs’ counsel did not meet and confer regarding her objections. Further, she argues, the deposition of PMK for property manager confirmed that all dealings with the property and plaintiffs had been exclusively handled by the property manager.

In replies (filed on September 20, 2019), plaintiff reiterates her contention that she never received any responses from defendant prior to filing the motions. Plaintiff contends that plaintiffs’ counsel did not receive defense counsel’s August 30, 2019 letter.

On September 4, 2020, defendant filed a supplemental opposition arguing that she served responses along with verifications in January 2019. Defendant also argues that the motions are moot and/or untimely. Defendant points out that plaintiff’s counsel failed to meet and confer before “rescheduling” the motions.

In a supplemental reply, plaintiff argues that the motions are timely. As to the deposition, plaintiff asserts that defendant waived any objections because she did not serve objections. Plaintiff asserts that defendant has not provided any evidence that she resides outside of the U.S.

The court rules as follows:

The motions regarding written discovery are CONTINUED to allow defendant to re-serve verified responses that were purportedly served in January 2019. Although defendant has shown that she served responses in January 2019, she has not shown proof that verifications were served. The court notes that plaintiffs’ counsel should have attempted to meet and confer further before “rescheduling” the motions to obtain defendant’s discovery responses, which were attached to defendant’s oppositions from September 2019.

As to the motion to compel deposition, “[w]hile section 2025.260, subdivision (a), provides for a court to permit a deposition of a party or officer, director, managing agent, or employee of a party at a place ‘that is more distant than that permitted under Section 2025.250 [(75 miles from the deponent's residence or within the county where the action is pending and within 150 miles of the deponent's residence)],’ section 2025.260 does not provide for those depositions to be held at a place more distant than that permitted by section 1989. There is simply no conflict between the plain language of sections 1989 and 2025.260. Section 2025.260 permits depositions more than 75 (or 150) miles from a deponent's residence, but section 1989 restricts a deponent from being required to attend a California deposition if the deponent is not a California resident.” Toyota Motor Corp v. Superior Court (2011) 197 Cal. App. 4th 1107, 1125. The court notes that defendant has not shown that she served timely objections before the May 30, 2019 deposition date. Although defendant did not provide a declaration as to her residency, defense counsel states in her declaration that defendant resides in Hong Kong. Further, although defendant cannot be ordered to appear personally in California for a deposition, defendant is ordered to make herself available by videoconference.

The parties’ requests for sanctions are DENIED.

Plaintiff is ordered to give notice of this ruling.



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