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This case was last updated from Los Angeles County Superior Courts on 04/18/2021 at 07:33:35 (UTC).

MARIA DE LOURDES ESTRADA, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR, ET AL. VS D&S ELCO, LLC, ET AL.

Case Summary

On 04/29/2020 MARIA DE LOURDES ESTRADA, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR filed a Property - Other Real Property lawsuit against D S ELCO, LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******6412

  • Filing Date:

    04/29/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiffs and Cross Defendants

MARIA DE LOURDES ESTRADA INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR

DOMINGUEZ PEDRO PEREZ

MONTERROSAS MINOR CHILD OSCAR GERARDO

MEGIA HUMBERTO MONTERROSAS

ESTRADA MINOR CHILD BRYANT

MONTERROSAS MINOR CHILD KEMBERLEY

PEREZ HERNANDEZ PETER WILLIAMS

JIMENEZ MONICA HERNANDEZ

MONTERROSAS MINOR CHILD WILLIAM

ESTRADA MARIA DE LOURDES

MONTERROSAS KEMBERLEY

MONTERROSAS OSCAR GERARDO

ESTRADA BRYANT

MONTERROSAS WILLIAM

Defendants and Cross Plaintiffs

D&S ELCO LLC

LIBOW DAVID

OLIVAREZ ISIDRO

MARTINEZ SYLVIA

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorneys

MITCHELTREE TARA

RILEY GRANT K.

Defendant and Cross Plaintiff Attorneys

LISNOW ROBERT

SLATER BLAKE S.

WEBB LANE ELLIS

 

Court Documents

Declaration - DECLARATION OF SHANNA M. VAN WAGNER IN SUPPORT OF DEFENDANTS REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR PRELIMINARY INJUNCTION

2/18/2021: Declaration - DECLARATION OF SHANNA M. VAN WAGNER IN SUPPORT OF DEFENDANTS REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR PRELIMINARY INJUNCTION

Reply - REPLY TO PLAINTIFFS OPPOSITION TO D&S ELCO, LLC MOTION FOR PRELIMINARY INJUNCTION

2/18/2021: Reply - REPLY TO PLAINTIFFS OPPOSITION TO D&S ELCO, LLC MOTION FOR PRELIMINARY INJUNCTION

Declaration - DECLARATION OF SYLVIA MARTINEZ IN SUPPORT OF DEFENDANT/CROSS-COMPLAINANT D&S ELCOM, LLC'S MOTION FOR PRELIMINARY INJUNCTION

1/26/2021: Declaration - DECLARATION OF SYLVIA MARTINEZ IN SUPPORT OF DEFENDANT/CROSS-COMPLAINANT D&S ELCOM, LLC'S MOTION FOR PRELIMINARY INJUNCTION

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

1/13/2021: Stipulation - No Order - STIPULATION - NO ORDER STIPULATION AND CONSENT TO ELECTRONIC SERVICE

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT)

12/17/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT)

Reply - REPLY DEFENDANTS D&S ELCO, LLC, SYLVIA MARTINEZ AND DAVID LIBOWS REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT

12/10/2020: Reply - REPLY DEFENDANTS D&S ELCO, LLC, SYLVIA MARTINEZ AND DAVID LIBOWS REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT

Declaration - DECLARATION DECLARATION OF PEDRO PEREZ DOMINGUEZ IN SUPPORT OF PLAINTIFFS' OPPOSITION OT DEFENDANTS' MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

12/4/2020: Declaration - DECLARATION DECLARATION OF PEDRO PEREZ DOMINGUEZ IN SUPPORT OF PLAINTIFFS' OPPOSITION OT DEFENDANTS' MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

Motion for Leave to File a Cross-Complaint

11/19/2020: Motion for Leave to File a Cross-Complaint

Declaration - DECLARATION OF DAVID LIBOW

11/19/2020: Declaration - DECLARATION OF DAVID LIBOW

Case Management Order

11/4/2020: Case Management Order

Notice of Ruling

11/5/2020: Notice of Ruling

Notice of Posting of Jury Fees

9/24/2020: Notice of Posting of Jury Fees

Case Management Statement

9/24/2020: Case Management Statement

Proof of Service (not Summons and Complaint)

9/24/2020: Proof of Service (not Summons and Complaint)

Notice - NOTICE OF CASE MANAGEMENT CONFERENCE

9/3/2020: Notice - NOTICE OF CASE MANAGEMENT CONFERENCE

Answer

8/4/2020: Answer

Summons - SUMMONS ON COMPLAINT

6/5/2020: Summons - SUMMONS ON COMPLAINT

Notice of Case Assignment - Unlimited Civil Case

4/29/2020: Notice of Case Assignment - Unlimited Civil Case

42 More Documents Available

 

Docket Entries

  • 05/02/2022
  • Hearing05/02/2022 at 10:00 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 04/20/2022
  • Hearing04/20/2022 at 09:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 02/24/2022
  • Hearing02/24/2022 at 08:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Status Conference

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  • 03/18/2021
  • Docketat 08:30 AM in Department 24; Hearing on Motion for Trial Preference - Not Held - Rescheduled by Party

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  • 03/15/2021
  • Docketat 08:30 AM in Department 24; Hearing on Motion for Trial Preference - Not Held - Rescheduled by Party

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  • 03/08/2021
  • Docketat 08:30 AM in Department 24; Hearing on Motion for Trial Preference - Not Held - Rescheduled by Party

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  • 02/25/2021
  • Docketat 08:30 AM in Department 24; Hearing on Motion for Preliminary Injunction - Held - Motion Denied

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  • 02/25/2021
  • DocketNotice of Posting of Jury Fees; Filed by Maria De Lourdes Estrada (Plaintiff); Bryant Estrada (Plaintiff); Kemberley Monterrosas (Plaintiff) et al.

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  • 02/25/2021
  • DocketMinute Order ( (Hearing on Motion for Preliminary Injunction)); Filed by Clerk

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  • 02/23/2021
  • DocketNotice (NOTICE OF ERRATA RE PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION FOR PRELIMINARY INJUNCTION); Filed by Maria De Lourdes Estrada (Plaintiff); Bryant Estrada (Plaintiff); Kemberley Monterrosas (Plaintiff) et al.

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47 More Docket Entries
  • 06/17/2020
  • DocketProof of Personal Service; Filed by Maria De Lourdes Estrada (Plaintiff); Bryant Estrada (Plaintiff); Kemberley Monterrosas (Plaintiff) et al.

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  • 06/05/2020
  • DocketSummons (on Complaint); Filed by Maria De Lourdes Estrada (Plaintiff); Bryant Estrada (Plaintiff); Kemberley Monterrosas (Plaintiff) et al.

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  • 05/13/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/29/2020
  • DocketComplaint; Filed by Maria De Lourdes Estrada (Plaintiff); Bryant Estrada (Plaintiff); Kemberley Monterrosas (Plaintiff) et al.

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  • 04/29/2020
  • DocketApplication And Order For Appointment of Guardian Ad Litem; Filed by Maria De Lourdes Estrada (Plaintiff); Bryant Estrada (Plaintiff); Kemberley Monterrosas (Plaintiff) et al.

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  • 04/29/2020
  • DocketApplication And Order For Appointment of Guardian Ad Litem (for Oscar); Filed by Maria De Lourdes Estrada (Plaintiff); Bryant Estrada (Plaintiff); Kemberley Monterrosas (Plaintiff) et al.

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  • 04/29/2020
  • DocketApplication And Order For Appointment of Guardian Ad Litem; Filed by Maria De Lourdes Estrada (Plaintiff); Bryant Estrada (Plaintiff); Kemberley Monterrosas (Plaintiff) et al.

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  • 04/29/2020
  • DocketCivil Case Cover Sheet; Filed by Maria De Lourdes Estrada (Plaintiff); Bryant Estrada (Plaintiff); Kemberley Monterrosas (Plaintiff) et al.

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  • 04/29/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 04/29/2020
  • DocketApplication And Order For Appointment of Guardian Ad Litem (for Kemberley); Filed by Maria De Lourdes Estrada (Plaintiff); Bryant Estrada (Plaintiff); Kemberley Monterrosas (Plaintiff) et al.

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Tentative Rulings

Case Number: 20STCV16412    Hearing Date: February 25, 2021    Dept: 24


Case Number: 20STCV31839    Hearing Date: February 25, 2021    Dept: 24

Defendant Weedmayhem Community, Inc.’s demurrer to the Complaint is OVERRULED and its motion to strike is DENIED.

On August 20, 2020, Plaintiffs Sardor Azimovich Abdullaev, Sarvar Azimzhanovich Adbullaev, Abdullaeva International Trade Co. brought the instant fraud suit against Defendants Michael Bensimon Mizrachi (“Michael”); Marina Kusheva Mizrachi (“Marina”); Weedmayhem, Inc. (“WI”); Weedmayhem Technologies (“WT”); Weedmayhem Community, Inc. (“WCI”); WM Management Group LLC (“WMMG”); MBM Dynasty Holdings, LLC (“MBM”); Ilgar Hajiyev (“Hajiyev”); and Sona Gadzhieva (“Gadzhieva”). The Complaint states eight causes of action for fraud, breach of contract, money had, open book account, defamation per se, declaratory relief, equitable indemnity, and unfair competition.

Legal Standard

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

Discussion

Given the identical nature of the motions, the Court finds that the analysis discussed in the prior demurrers for the Weedmayhem entities applies here. WCI’s arguments only apply to the first cause of action for fraud. Plaintiffs allege sufficient facts regarding Michael’s fraudulent statements on behalf of WCI. The fraud allegations support the claim for punitive damages. Accordingly, WCI’s demurrer is OVERRULED and WCI’s motion to strike is DENIED.

Case Number: 20STCV16412    Hearing Date: December 17, 2020    Dept: 24

Defendants’ motion for leave to file a proposed cross-complaint is GRANTED.

On April 29, 2020, Plaintiffs Maria De Lourdes Estrada, individually and as Guardian ad Litem for Bryant Estrada, a minor child, Kemberley Monterrosas, Oscar Gerardo Monterrosas, William Monterrosas, Humberto Monterrosas Megia, Pedro Perez Dominguez, Monica Hernandez, Peter Williams, and Perez Hernandez (collectively “Plaintiffs”) filed a complaint against Defendants D&S Elco, LLC, Sylvia Martinez, David Libow, and Isidro Olivarez. The complaint alleges seven causes of action: (1) Breach of Implied Warranty of Habitability; (2) Tortious Breach of Implied Warranty of Habitability; (3) Negligence; (4) Intentional Infliction of Emotional Distress; (5) Private Nuisance; (6) Violation of Civil Code, section 1942.4; and (7) Violation of Business and Professions Code, section 17200.

The complaint alleges that Plaintiffs were tenants and occupants at a rental home located at 1109 N. Commonwealth Avenue, Los Angeles, California 90029 (the “Property”). The complaint alleges that Defendants are the owner of the Property. The complaint alleges Plaintiffs and Defendants entered into an oral and written lease agreement for the Property on October 22, 2014 and January 1, 2016, respectively. The complaint alleges Defendants breached their common law and statutory duty of care by failing to repair and maintain the Property.

On August 4, 2020, Defendants D&S Elco, LLC, Sylvia Martinez, and David Libow filed an answer to the complaint.

On August 10, 2020, Defendant Isidro Olivarez filed an answer to the complaint.

On November 19, 2020, Defendants D&S Elco, LLC, Sylvia Martinez, and David Libow filed the instant motion for leave to file a cross-complaint against Plaintiffs for trespass.

On December 4, 2020, Plaintiffs filed an opposition.

On December 12, 2020, Defendants filed a reply.

Legal Standard

C.C.P. § 428.50 provides for the filing of cross-complaints and when leave of the court is required for such filing:  

(a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint. 

(b) Any other cross-complaint may be filed at any time before the court has set a date for trial. 

(c) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action. 

(C.C.P. § 428.50.)

C.C.P. section 428.50 authorizes the Court to grant leave to file a cross-complaint in the interest of justice at any time during the action. ¿A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court. (Silver Orgs. v. Frank (1990) 217 Cal. App. 3d 94, 98-99.)

“Permission to file a permissive cross-complaint is solely within the trial court’s discretion.” (Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.) Cross-claims against complainants arising from the same transaction or series thereof, existing at the time of filing an answer, are compulsory. (See, e.g., CCP §426.30(a); Al Holding Co. v. O’Brien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, 1313-14; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶¶ 6:516, 6:511 and 6:581.) The phrase “same transaction or occurrence” applies if the factual or legal issues are logically related. (ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd. (2016) 5 CA5th 69, 83.) Leave to file compulsory cross-complaints must be granted where moving parties acted in good faith. (C.C.P. § 426.50; Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶¶ 6:518-19 [noting split of authority as to whether there is a modicum of discretion], and 6:562.) 

A motion to file a cross-complaint at any time during the course of the action must be granted unless substantial evidence of bad faith is demonstrated. ¿(Silver Orgs, supra.) ¿Bad faith involves conduct, not prompted by an honest mistake, but by some sinister motive, not simply bad judgment or negligence, but rather the conscious doing of a wrong because of dishonest purpose or moral obliquity. ¿(Id.)¿Bad faith contemplates a state of mind affirmatively operating with furtive design or ill will. ¿(Id.)

Discussion

Here, Defendants seek leave to file a cross-complaint against Plaintiffs. The proposed cross-complaint asserts a single cause of action for trespass and seeks injunctive relief. (Sullivan Decl., Exh. 10.) The proposed cross-complaint alleges Defendants own two properties located at 4471 Santa Monica Boulevard in Los Angeles, California, 90029 (the “Santa Monica Property”) and 1109 N. Commonwealth Avenue in Los Angeles, California, 90029 (the “Property”). (Id. ¶¶ 6 – 7.) The proposed cross-complaint alleges that although the Property has a different address than the Santa Monica Property, it is located within the boundaries of the Santa Monica Property. (Id. ¶ 7.) The cross-complaint alleges Defendants entered into a commercial lease with Mel Olivarez and Los Feliz Independent Auto Works for the Santa Monica Property on May 4, 2006. (Id. ¶ 9.) The lease permits Isidro Olivarez to utilize the Santa Monica Property for automobile repair purposes only. (Id. ¶ 12.) The Property was to be used as storage and never to be used as a residential property. (Id. ¶ 14.) The proposed cross-complaint alleges Plaintiffs trespassed on Defendants’ property without consent. ((Id. ¶¶ 19 – 27.) In the complaint, Plaintiffs allege they entered into a lease agreement with Defendants for the Property in 2014 and 2016. (Complaint ¶ 20.) Plaintiffs allege Defendants breached their common law and statutory duty of care by failing to repair and maintain the Property. (Complaint ¶¶ 12 – 15.) These claims arise from the same transaction, occurrence, or series of transactions or occurrences as the claims in the complaint. Thus, Defendants’ cause of action in the proposed cross-complaint is compulsory.

There is no substantial evidence Defendants acted in bad faith. In support of their motion, Defendants submitted three declarations of: (1) Kimberly A. Sullivan (Defendants’ counsel); (2) David Libow; and (3) Sylvia Martinez.

Kimberly Sullivan from Lynberg & Watkins, APC associated as counsel for Defendants on September 23, 2020. (Sullivan Decl. ¶ 5, Exh. 3.) Ms. Sullivan attests that upon evaluation of the case, she determined that a claim for trespass with injunctive relief lies against Plaintiff. (Id. ¶ 6.) Ms. Sullivan also attaches six exhibits to support the Defendants’ trespass claim against Plaintiffs. (Id., Exhs. 4 – 9.)

Additionally, Defendant David Libow, managing member of Defendant D&S Elco, LLC (“D&S”) attests that he executed the lease agreement between D&S and Mel Olivarez and Los Feliz Independent Auto Works for Santa Monica Property on May 4, 2006. (Libow Decl. ¶ 2.) Mr. Libow attests that the Property is located within the boundaries of the Santa Monica Property. (Id. ¶ 3.) Mr. Libow further attests that Defendant Olivarez never obtained permission to utilize the Santa Monica Property for any reason other than for automobile repair; the Property was to be used as storage at all time and never to be used as a residential property; Defendant Olivarez never obtained oral or written consent to enter into a residential lease with Plaintiffs; and Mr. Libow never gave permission to Plaintiffs to enter the Santa Monica Property or the Property. (Id. ¶¶ 4 – 7.)

Similarly, Defendant Sylvia Martinez, managing member of D&S, attest that she did not become aware Plaintiffs were utilizing the Property for residential purposes until she advised Defendant Olivarez that she wanted to tear down the storage unit and blacktop the area for additional parking. (Martinez Decl. ¶ 8.) Ms. Martinez attest that when she became aware that Plaintiffs were utilizing the Property, she advised Defendant Olivarez that Plaintiffs were unlawfully in the Property and needed to vacate immediately. (Id.) Ms. Martinez also did not give Plaintiffs permission to enter the Santa Monica Property or the Property. (Id. ¶ 9.)

As to the argument that the pleadings are insufficient, the Court does not ordinarily consider the validity of the proposed amended pleading when determining whether to grant leave to amend, or in this case, leave to file a cross-complaint. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1045.) “[T]he better course of action [is] to allow [Defendants] to [file the cross-complaint] and then let the parties test its legal sufficiency in other appropriate proceedings.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760; see also Weil and Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2015) ¶ 6:644 [“Ordinarily, the judge will not consider the validity of the proposed amended¿pleading¿in deciding whether to grant leave to amend. Grounds for demurrer or motion to strike are premature.¿¿After¿leave¿to amend is granted, the opposing party will have the opportunity to attack the validity of the amended pleading.” (Emphasis in original)].) 

Accordingly, Defendants’ motion for leave to file a proposed cross-complaint is GRANTED.

Moving party is ordered to give notice.

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