REZA SAFAIE VS HOMEYRA M ARBABI ET AL

Tentative Rulings

Case Number: ****1810 Hearing Date: October 18, 2022 Dept: 61

Defendants Magnum Property Investments LLC, Strategic Magnum Holdings, Peter Baer, and BDR Inc.’s Motion to Strike Portions of the Fifth Amended Complaint is DENIED.

I. MOTION TO STRIKE

Equis moves to strike Zepeda’s prayer for punitive damages against it on the grounds that all of the discriminatory and harassing conduct is alleged on the part of LA Care, not Equis itself. (Motion at pp. 9–12.)

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. (Code Civ. Proc., 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Defendants Defendants Magnum Property Investments LLC, Strategic Magnum Holdings, Peter Baer, and BDR Inc. (Defendants) move to strike the prayer for punitive damages in the Fifth Amended Complaint (5AC) alleged against the entity defendants. (Motion at pp. 7–9.) Defendants argue that the 5AC does not state facts supporting the existence of malice, oppression, or fraud.

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code 3294.) The terms are defined as:

“Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

“Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

“Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

The 5AC alleges the existence of malice and oppression within the meaning of Civil Code 3294. It is alleged that Defendants changed the locks to the doors of Plaintiffs’ property, padlocked the entrances, disabled access, and removed Plaintiff’s personal property from the premises, in order to create the impression that the property was abandoned and to absolve themselves of evicting Plaintiffs via lawful procedures. (5AC 23–24.) It is alleged that managing agents, officers, and directors of Defendants were responsible for the decision to engage in this conduct. (5AC 55–57.)

The motion is DENIED.

Case Number: ****1810 Hearing Date: August 25, 2022 Dept: 61

Plaintiffs Reza Safaie, Bahareh Safaie, and S.B.R.S., Inc.’s Motion to Strike or Tax Costs is GRANTED as to all costs sought in the July 20, 2022 memorandum.

Plaintiffs to provide notice.

I. MOTION TO TAX COSTS

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (California Rules of Court Rule 3.1700, subd. (b)(1).)

“Code of Civil Procedure section 1032, subdivision (b) [], guarantees prevailing parties in civil litigation awards of the costs expended in the litigation: ‘Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.’” (Williams v. Chino Valley Independent Fire Dist. (“Williams”) (2015) 61 Cal.4th 97, 100.).

“If the items on a verified cost bill appear proper charges, they are prima facie evidence that the costs, expenses and services therein listed were necessarily incurred.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) Although individual cost items are ordinarily challenged by a motion to tax costs, no cost-item is effectively put in issue by “mere statements” claiming them to be unreasonable. (Ibid.) However, where “it cannot be determined from the face of the cost bill whether the items are proper,” “the mere filing of a motion to tax costs may be a ‘proper objection’ to an item.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, 132.)

Plaintiffs seek to tax or strike the $876.85 in costs sought in Defendants memorandum of costs, reasoning that Defendants provide no detail for the costs sought, whether they were incurred individually or collectively, and in any event cannot be sought because they remain in the litigation and are not prevailing parties within the meaning of Code of Civil Procedure 1032. (Motion at pp. 3–9.) Defendants in opposition contend that the $500 in filing fees reflects the necessary filing of their motion for summary adjudication, which the court granted.

Defendants are not entitled to costs because they are not prevailing parties. A “prevailing party” is statutorily entitled to recover costs “in any action or proceeding.” (Code Civ. Proc. 1032, subd. (b).) A “prevailing party” includes “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (Code Civ. Proc. 1032, subd. (a)(4).) Defendants have not been dismissed. They have obtained no net monetary recovery. It remains to be seen whether Plaintiffs shall obtain any relief against them. Defendants prevailed only on their motion for summary adjudication, which dismissed foreclosure-based claims and a prayer for punitive damages against a deceased defendant. Defendants have prevailed upon one motion, not this “action or proceeding.” No costs may be awarded at this time.

The motion is GRANTED as to all costs sought in the memorandum.

Case Number: ****1810 Hearing Date: August 9, 2022 Dept: 61

Plaintiff Reza Safaie’s Motion to Compel Responses to Form Interrogatories, Set Two, from Defendant BDR, Inc. is DENIED as MOOT. No sanctions are awarded.

I. MOTION TO COMPEL & DEEM ADMITTED

A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., 2030.290, 2031.300.)

A party who fails to serve a timely response to interrogatories or a demand for inspection waives any objection to the demand. (Code Civ. Proc., 2030.290, 2031.300.)

Plaintiff Reza Safaie moves to compel a verification of discovery from Defendant BDR Inc. for form interrogatories, set two. Plaintiff served the discovery on May 4, 2022, and Defendant served responses on June 8, 2022, but without verifications. (Semnar Decl. 3–4.) Responses without verifications are tantamount to no responses at all. (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 635–36.)

Defendants in opposition argue that verifications for all outstanding discovery, including the form interrogatories at issue, were served on July 21, 2022, five days before the opposition was filed. (Foellmer Decl. 2.)

The motion is rendered moot with the service of verifications, and is therefore DENIED.

Plaintiff requests $2,457.00 in sanctions against Defendant and its attorneys, representing 4.5 hours of attorney work at $685 per hour, plus a $60 filing fee.. (Semnar Decl. 10–12.) As the motion is mooted with the provision of a verification, no sanctions are awarded.

Case Number: ****1810 Hearing Date: August 8, 2022 Dept: 61

Plaintiff Reza Safaie’s Motions to Compel Responses to Form and Special Interrogatories, Set Two, from Defendant Magnum Property Investments, LLC are DENIED. No sanctions are awarded.

I. MOTION TO COMPEL & DEEM ADMITTED

A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., 2030.290, 2031.300.)

A party who fails to serve a timely response to interrogatories or a demand for inspection waives any objection to the demand. (Code Civ. Proc., 2030.290, 2031.300.)

Plaintiff Reza Safaie moves to compel verifications from Defendant Magnum Property Investments, LLC to form and special interrogatories, set two. Plaintiff served the discovery on April 5 and April 27, and Defendant served responses on May 10 and June 1, 2022, but without verifications. (Semnar Decl. 3–4.) Responses without verifications are generally tantamount to no responses at all. (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 635–36.)

Defendants in opposition argue that verifications were served on July 21, 2022, five days before the opposition was filed. (Foellmer Decl. 2.)

The motion is rendered moot with the service of verifications, and is therefore DENIED.

Plaintiff requests $3,485.00 in sanctions against Defendant and its attorneys, representing five hours of attorney work at $685 per hour. (Semnar Decl. 10.) As the motion is mooted with the provision of verifications, no sanctions are awarded.

Case Number: ****1810 Hearing Date: July 14, 2022 Dept: 61

Defendants Magnum Property Investments LLC, Strategic Magnum Holdings, Inc., Peter Baer, and BDR, Inc.’s Motion for Summary Adjudication is GRANTED.

Defendants to provide notice.

I. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. 437c, subd. (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 that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendants move for summary adjudication of the second and third causes of action for wrongful foreclosure and violation of statutory duties under the Homeowners Bill of Rights (HBOR), and for the prayer for punitive damages alleged against Peter Baer. The basis for the arguments against the substantive claims are that Defendants were neither the trustees nor mortgagees on the loan in question, and had no role in the foreclosure of the property. (Separate Statement No. 26, 27; RJN Exhs. B–E.) The basis for the punitive damages argument is that Peter Baer is now deceased, and as such punitive damages cannot be assessed against him under Code of Civil Procedure 377.42. (Motion at pp. 6–9.)

Defendants’ arguments are persuasive. Actions for wrongful foreclosure are generally brought against the trustee or mortgagee, and require a wrongful foreclosure, which Defendants did not participate in here. (See Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 408.) And Defendants are correct that punitive damages are generally not awardable against deceased persons. (Code Civ. Proc. 377.42.) Plaintiffs have filed no opposition to this motion.

The motion is therefore GRANTED.

Case Number: ****1810 Hearing Date: July 13, 2022 Dept: 61

Defendants Magnum Property Investments LLC, Strategic Magnum Holdings, Inc., Peter Baer, and BDR, Inc.’s Motion for Summary Adjudication is GRANTED.

Defendants to provide notice.

I. SUMMARY JUDGMENT

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. 437c, subd. (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 that cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Defendants move for summary adjudication of the second and third causes of action for wrongful foreclosure and violation of statutory duties under the Homeowners Bill of Rights (HBOR), and for the prayer for punitive damages alleged against Peter Baer. The basis for the arguments against the substantive claims are that Defendants were neither the trustees nor mortgagees on the loan in question, and had no role in the foreclosure of the property. (Separate Statement No. 26, 27; RJN Exhs. B–E.) The basis for the punitive damages argument is that Peter Baer is now deceased, and as such punitive damages cannot be assessed against him under Code of Civil Procedure 377.42. (Motion at pp. 6–9.)

Defendants’ arguments are persuasive. Actions for wrongful foreclosure are generally brought against the trustee or mortgagee, and require a wrongful foreclosure, which Defendants did not participate in here. (See Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 408.) And Defendants are correct that punitive damages are generally not awardable against deceased persons. (Code Civ. Proc. 377.42.) Plaintiffs have filed no opposition to this motion.

The motion is therefore GRANTED.

Case Number: ****1810 Hearing Date: July 11, 2022 Dept: 61

Plaintiffs Reza Safaie, Bahareh Safaie, and S.B.R.S. Inc.’s Motion for Sanctions is DENIED.

Plaintiffs Reza Safaie, Bahareh Safaie, and S.B.R.S. Inc.’s Motion for Leave to File Fifth Amended Complaint is ruled upon as follows:

GRANTED as to the removal of the second and third causes of action for wrongful foreclosure and violation of statutory duties, as well as the prayer for punitive damages against Defendant Peter Baer;

GRANTED as to the addition of causes of action for breach of bailment, negligence, negligent hiring/supervision, trespass to chattels, trespass to real property, and invasion of privacy against current defendants;

GRANTED as to the addition of a prayer for punitive damages against Defendants Magnum Property Investments, LLC, Strategic Magnum Holdings, Inc., and BDR, Inc.;

DENIED as to the addition of Master Protection Security, Inc., Christina Baer, Asher Baer, and Thomas Lavardera as defendants, and the addition of new causes of action for breach of contract, breach of implied covenant of good faith and fair dealing, and breach of fiduciary duties.

Plaintiff Bahareh Safaie’s Motion for Protective Order is GRANTED in part, and Plaintiff Bahareh Safaie’s deposition shall take place on a weekend. No sanctions are awarded.

I. MOTION FOR TERMINATING SANCTIONS

The court may impose terminating sanctions, include an order striking pleadings, and order dismissing an action, or an order rendering judgment by default against a party, for conduct that is a misuse of the discovery process. (Code Civ. Proc., 2023.030.) This conduct include “[f]ailing to respond or to submit to an authorized method of discovery,” and “[d]isobeying a court order to provide discovery.” (Code Civ. Proc., 2023.010.)

Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) Dismissal is a drastic measure, and terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.)

Plaintiffs seek terminating or evidentiary/issue sanctions against Defendants Magnum Property Investments LLC, Strategic Magnum Holdings, Inc., Peter Baer, and BDR, Inc., on the grounds that they have engaged in spoliation of evidence.

The facts underlying the motion are as follows. Plaintiffs have long alleged that Defendants converted their personal property when they locked them out of the house at issue. (Complaint 53–56.) Plaintiffs were informed in September or October 2018, within a month of the original complaint being filed, that the personal property at issue had been destroyed or thrown away. (Semnar Decl. 28, Exh. I.) This was evidently pursuant to a policy of Defendants’ whereby property claimed that is worth less than $700 is destroyed. (Semnar Decl. 40, Exh. H.) Plaintiff claims that this destruction of property is spoliation, warranting terminating, issue, or evidentiary sanctions. (Motion at pp. 8–9.)

Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another's use in pending or future litigation. Such conduct is condemned because it “can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both. While there is no tort cause of action for the intentional destruction of evidence after litigation has commenced, it is a misuse of the discovery process that is subject to a broad range of punishment, including monetary, issue, evidentiary, and terminating sanctions. A terminating sanction is appropriate in the first instance without a violation of prior court orders in egregious cases of intentional spoliation of evidence.

Discovery sanctions are intended to remedy discovery abuse, not to punish the offending party. Accordingly, sanctions should be tailored to serve that remedial purpose, should not put the moving party in a better position than he would otherwise have been had he obtained the requested discovery, and should be proportionate to the offending party's misconduct.

(Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223, internal quotation marks and citations omitted.)

There are several considerations militating against the imposition of sanctions here. The first, as Defendants point out, is that Plaintiffs in this motion essentially seek the imposition of sanctions based on a more or less final adjudication of Plaintiff’s conversion claim, without the procedural protections ordinarily inherent in a motion for summary relief under Code of Civil Procedure 437c. The evidence that Plaintiffs contend was destroyed was their personal property, namely the property that they allege — and have alleged since the beginning of this case — Defendants converted when they removed it from their house. An order sanctioning Defendants for destroying the property as discovery misconduct is not far removed from a final order holding them liable for converting it. Such a determination, however, ought to be made by the trier of fact.

The second consideration is Plaintiffs’ delay in bringing this motion. Plaintiffs knew that their property had been destroyed or thrown away within a month of filing their Complaint in September 2018. (Semnar Decl. Exh. I at pp. 197–199.) Yet Plaintiffs only filed the present motion years later, in June 2022. Plaintiffs present no explanation for this delay, and offer no evidence of intervening attempts to discover the information, let alone evidence that Defendants have attempted to obstruct discovery of the same. Plaintiffs therefore have not behaved as though the evidentiary loss occasioned by the destruction of the property was of any great magnitude.

Finally, the evidence that Plaintiffs do present simply does not support the imposition of the severe sanctions that they seek. The authority providing for the sanctions that Plaintiffs seek requires a showing that a party has failed to obey a court order or has otherwise engaged in egregious or exceptional misconduct. (See New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1426 [“[I]f it is sufficiently egregious, misconduct committed in connection with the failure to produce evidence in discovery may justify the imposition of nonmonetary sanctions even absent a prior order compelling discovery, or its equivalent.”].) But Plaintiffs do not point to any violation of a court order. In fact, Plaintiffs point to no discovery requests seeking the property at all.

Nor is the conduct at issue so egregious a misuse of the discovery process as to warrant the sanctions sought. The evidence shows that the personal property was destroyed or disposed of because it was deemed to be worth less than $700, prior to any discovery request seeking its production. (Semnar Decl. 40, Exh. H.) This is akin to the situation presented in New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4^th 1403, in which it was held that a trial court exceeded its authority in entering a spoliation instruction and prohibiting a defendant from referring to video evidence, when the defendant had allowed potentially relevant video recordings of the areas surrounding a slip-and-fall accident site to be deleted. (Id. at pp. 1428–1429.) The party seeking sanctions had shown only that the defendant had “destroyed the video recordings after receiving a notice to produce them and after reviewing them,” and determining that they did not show the site in question. (Id. at p. 1434.) Meanwhile, the defendant had “objected to the document demands,” and the plaintiff had brought no motion challenging the objections. (Ibid.) “The circumstances here,” the court stated, “involve neither the failure to comply with a discovery obligation nor the destruction of particularly probative evidence.” (Ibid.)

The same analysis applies with greater force to the present case. Plaintiffs present no evidence that they have sought the property in discovery, much less that Defendants have promised or offered to produce it. Plaintiffs have known of the property’s loss or destruction since the inception of the case, but have waited years to seek these sanctions, indicating that the property is itself of little evidentiary importance. Plaintiffs’ motion is less one to vindicate the integrity of the discovery process than to obtain premature and summary relief on one of their causes of action. No such relief is warranted. Plaintiffs will have an opportunity to prove their claims at trial. (See New Albertsons, Inc., supra, 168 Cal.App.4^th at p.1431 [“[I]n most cases of purported spoliation the facts should be decided and any appropriate inference should be made by the trier of fact after a full hearing at trial.”].)

The motion for sanctions is therefore DENIED.

II. MOTION FOR LEAVE TO FILE AMENDED COMPLAINT

Code Civ. Proc. section 473 subd. (a)(1) states that:

The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.

“The trial court has discretion to permit or deny the amendment of the complaint, but instances justifying the court's denial of leave to amend are rare.” (Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642.)

“Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [Citations], this policy should be applied only ‘[w]here no prejudice is shown to the adverse party . . .’ [Citation.] A different result is indicated ‘[w]here inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation.]” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)

Pursuant to California Rule of Court Rule 3.1324, “[a] motion to amend a pleading before trial must: (1)Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3)State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.”

Such a motion must include a supporting declaration stating, “(1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.” (CRC Rule 3.1324, subd. (b).)

Plaintiffs seek leave to file a fifth amended complaint (5AC) making several amendments to their claims. The proposed changes are as follows:

The deletion of the second and third causes of action for wrongful foreclosure and violation of the Homeowners Bill of Rights, as well as the prayer for punitive damages against defendant Peter Baer, now deceased;

The addition of claims for (1) breach of bailment, (2) negligence, (3) breach of contract, (4) breach of implied covenant of good faith and fair dealing, (5) breach of fiduciary duties, (6) negligent hiring and supervision, (7) trespass to chattels, and (8) trespass to real property;

The addition of four new defendants: Master Protection Security, Inc., Christina Baer, Asher Baer, and Thomas Lavardera.

The addition of punitive damages allegations against all Defendants

(Semnar Decl. Exh. A.)

Plaintiffs justify the proposed deletion of causes of action by noting that Defendants have filed a motion for summary adjudication on April 28, 2022, against the 4AC’s prayer for punitive damages against Peter Baer, the wrongful foreclosure claim, and the HBOR claim, on the grounds that Peter Baer died on April 4, 2021, and they were not the trustee or mortgagee who foreclosed the property. Plaintiffs argue that granting leave to amend on this point will moot the motion by dismissing the claims at issue. (Motion at p. 2.)

Plaintiffs further argue that the addition of Master Protection Security, Inc. (MPS) as a defendant is necessary because MPS was the security guard service of the gated community where the real property was located, and MPS assisted Defendants in denying Plaintiffs access to the property. (Motion at p. 4.)

Plaintiffs justify the addition of Thomas Lavardera and Asher and Christina Baer on the grounds that, as of March 2022, Defendants have claimed that after Peter Baer’s death, the remaining corporate defendants were winding down and have no employees. (Semnar Decl. 5-6.) However, a recent statement of information filed in February 2022 reveals that Christina Baer is acting as Defendant BDR’s CEO. (Semnar Decl. 7, Exh. C.) Asher Baer and Thomas Lavardera were named as officers in a prior statement of information in October 2020. (Semnar Decl. Exh. D.) And BDR’s address in this prior statement indicates that it shared an address with the other corporate defendants. (Ibid.)

The additional causes of action for breach of contract, breach of covenant of good faith and fair dealing, and breach of fiduciary duties relate to MPS’s assistance in the deprivation of Plaintiffs’ access to the property. The other new causes of action, for breach of bailment, negligence, negligent hiring and supervision, trespass to chattels, and trespass to real property, are alleged against all defendants, and relate to the same transaction, whereby Plaintiffs were locked out of their home and their personal property was destroyed. (Semnar Decl. Exh. A.)

Defendants in opposition argue that Plaintiff has unreasonably delayed bringing this motion. They note that Plaintiff took the deposition of MPS in February 2019, more than three years ago. (Foellmer Decl. 3.) Trial is currently set for August 16, 2022, and the addition of several new defendants and claims would prompt new rounds of discovery, demurrers, and motions for summary judgment. (Opposition at p. 6.) Additionally, Defendants argue that the proposed 5AC states no claims against the individual defendants that Plaintiffs propose to amend, as the only basis for their inclusion is there status as officers of the company at a date long after the events complained of occurred. (Opposition at p. 7.)

Plaintiff in reply argues that Defendants have obstructed discovery, and not that Defendants have already agreed, in a stipulation filed on June 30, 2022, to continue trial for 120 days. (Reply at pp. 3–7.)

Defendants are correct that the claims alleged against the proposed individual defendants are deficient, and leave to include them is improper. A court may deny leave to amend to add claims that are clearly “subject to demurrer.” (Yee v. Mobilehome Park Rental Review Bd. (City of Escondido) (1998) 62 Cal.App.4th 1409, 1429.) Here, the basis for including the individual defendants Christina Baer, Asher Baer, and Thomas Lavadera is the alter ego doctrine. (Proposed 5AC 26.) But the proposed pleading does not attempt to plead that a unity of interest exists between the Defendant corporations and the individual defendants, or that recognizing their separateness from the corporate form will cause injustice. (See Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538.) It is alleged only that because the corporations are alter egos of each other, therefore “all Officers and Directors therefore have personal liability through alter ego principles.” (Proposed 5AC 26.) Moreover, it is not alleged, or even suggested in Plaintiff’s motion, that any of the new individual defendants authorized, participated in, or ratified the conduct at issue. The claims against these defendants are thus deficient, and leave to allege them would be fruitless.

Leave is also properly denied to add MPS as a defendant, and to include the new breach of contract, breach of covenant of good faith and fair dealing, and breach of fiduciary duty claims alleged solely against it. Plaintiffs have known of the facts constituting their claims against MPS for more than three years, through three successive iterations of amended pleadings. They provide no explanation for the delay in seeking ot add MPS as a defendant. This delay is unreasonable and prejudicial, and if allowed, is likely to result in further dispositive motions, such as demurrers and motions for summary judgment, and certain to result in additional discovery both by and against MPS. (See P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345 [discussing prejudice resulting from permitting amendment].) Thus leave to amend to include MPS and new claims directed against it is properly denied.

Leave to amend is appropriate, however, to remove the second and third causes of action for wrongful foreclosure and HBOR violations, as well as the prayer for punitive damages against the deceased Peter Baer. Likewise, leave to amend is permissible to re-allege the prayer for punitive damages against existing corporate defendants, and to include new claims for breach of bailment, negligence, negligent hiring, trespass to chattels, trespass to real property, and invasion of privacy. In granting Defendants’ motion to strike, the court ruled that although the 4AC alleged facts sufficient to create an inference of malice, the 4AC did not include allegations of corporate direction or ratification under Civil Code 3294, subd. (b). The proposed 5AC includes such allegations, however. (Proposed 5AC 62–64.)

Moreover, the additional claims alleged against existing defendants are not based on new facts, but merely allege new legal theories upon the same causes of action, namely for wrongful deprivation of Plaintiffs’ interests in their real and personal property. Since little new discovery is required for these additional theories, the prejudice associated with their inclusion is likely to be minimal. (See Rainer v. Buena Community Memorial Hosp. (1971) 18 Cal.App.3d 240, 254 [leave to amend proper “where the amendment merely adds a new theory of recovery on the same set of facts constituting the cause of action”].)

Accordingly, the motion for leave to amend is ruled upon as follows:

GRANTED as to the removal of the second and third causes of action for wrongful foreclosure and violation of statutory duties, as well as the prayer for punitive damages against Defendant Peter Baer;

GRANTED as to the addition of causes of action for breach of bailment, negligence, negligent hiring/supervision, trespass to chattels, trespass to real property, and invasion of privacy;

GRANTED as to the addition of a prayer for punitive damages against Defendants Magnum Property Investments, LLC, Strategic Magnum Holdings, Inc., and BDR, Inc.;

DENIED as to the addition of Master Protection Security, Inc., Christina Baer, Asher Baer, and Thomas Lavardera as defendants, and the addition of new causes of action for breach of contract, breach of implied covenant of good faith and fair dealing, and breach of fiduciary duties.

III. MOTION FOR PROTECTIVE ORDER

“The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc. 2025.420, subd. (b).)

Plaintiff Bahareh Safaie moves for a protective order prohibiting her deposition from going forward, requiring that any such deposition be limited to 3 hours and conducted remotely on a weekend, and ordering Defendants to pay $3,500.00 for lost wages from a prior deposition date, plus $6,021.15 for sanctions associated with the present motion.

The facts justifying the motion are these. Plaintiff Bahareh’s deposition was initially noticed for the same date as Plaintiff Reza Safaie’s deposition, namely October 21, 2021. (Semnar Decl. Exhs. A, B.) Reza’s deposition was scheduled for 10:00 a.m., and Bahareh’s was scheduled to take place afterward, at 2:00 p.m. (Semnar Decl. 16.) However, the deposition for Reza went long, and by 2:43 p.m., after Bahareh’s deposition was scheduled to start, the parties concluded that Bahareh’s deposition would not be taken on that day. (Semnar Decl. Exh. C.) In the deposition transcript at the time, the attorneys agreed that most of the questioning of Reza had involved matters in the years leading up to the 2018 eviction, including his acquisition of the property, his relationship with the corporate plaintiff SBRS, his status as person most knowledgeable for the same, and the circumstances leading up to his default on the mortgage. (Semnar Decl. Exh. C at pp. 134–137.) Plaintiff claims that she cleared her calendar for work on that date, resulting in a loss of $3,500.00. (Bahareh Decl. 8.)

It thus appears that Defendants noticed Bahareh’s deposition for October 21, 2021, with the unreasonable expectation that it would be completed that same day within the window of time available after the conclusion of Reza’s deposition. Although Defendants argue that the expansive questioning of Reza was relevant, the issue is not the relevance of the questioning, but the requirement that Bahareh attend a deposition that Defendants had no reasonable expectation would actually occur on the date noticed.

Bahareh is a plaintiff in this matter, and seeks damages for eviction and loss of personal property. As such, her deposition ought to take place. However, inconvenience already occasioned by the ill scheduling of the prior deposition, a limited protective order is appropriate. Plaintiff requests that if a deposition be allowed, it be taken remotely, on a weekend, and limited to three hours in duration. (Motion at p. 2.) Good cause exists to have the deposition scheduled for a weekend. However, good cause does not exist for further restrictions, which are likely to limit the evidentiary utility of the deposition. Nor may Plaintiff’s have the value of her time reimbursed, as such value is not properly awarded as a monetary sanction. (See Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1180 [“No sanctions case has approved an award based on reasonable expenses for the time and effort expended by a pro se litigant.”].)

The motion is therefore GRANTED in part. Plaintiff Bahareh Safaie’s deposition shall be scheduled for a weekend. No sanctions are awarded under Code of Civil Procedure 2025.420, subd. (h), as Plaintiff has only obtained partial relief, and Defendants’ opposition is made with substantial justification.

Case Number: ****1810    Hearing Date: October 27, 2020    Dept: 61

Defendants Magnum Property Investments, LLC, Strategic Magnum Holdings, Inc., Peter Baer, and BDR, Inc.’s Motion to Strike Portions of the Fourth Amended Complaint is GRANTED as to the prayer for punitive damages alleged against Magnum Property Investments, LLC, Strategic Magnum Holdings, Inc. and BDR, Inc., with 30 days leave to amend, and DENIED with respect to Peter Baer.

1. MOTION TO STRIKE

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. (Code Civ. Proc., ; 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., ; 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., ; 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Magnum moves to strike the 4AC’s prayer for punitive damages. (Motion at pp. 5–8.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code ; 3294.) The terms are defined as:

1. “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

2. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

3. “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

(Civ. Code ; 3294, subd. (b).)

The 4AC alleges that the Magnum defendants, in concert with Arbabi, coordinated a secret foreclosure sale to take place on September 4, 2018, without giving notice to Plaintiffs of the foreclosure’s pendency. (4AC ¶¶ 18–19.) It is further alleged that Defendants thereafter changed the locks and removed Plaintiffs’ personal property from the premises, to create the false impression the property was abandoned and that no formal eviction proceedings were necessary. (4AC ¶ 19.) It is alleged that Defendants engaged in this activity with the willful intent to deprive Plaintiffs of notice of their pending foreclosure and to take the property from under them. (4AC ¶ 22.) The court finds that, contrary to Defendants’ arguments, these allegations are sufficient to raise the prospect of malice for punitive damages purposes.

However, this analysis applies only to the individual defendant, Peter Baer. Defendants are correct that as to the three corporate defendants — Magnum Property Investments, LLC, Strategic Magnum Holdings, Inc. and BDR, Inc. — the element required of Civil Code ; 3294, subd. (b) is missing: There is no allegation that the conduct of these corporate employers was authorized, directed, or ratified by an officer, director, or managing agent. (Civ. Code ; 3294, subd. (b).) Although Plaintiffs claim the conduct was ratified by Peter Baer (Opposition at pp. 10–11), there is no allegation that Baer was an officer of these companies.

Accordingly, the motion to strike is GRANTED as to the prayer for punitive damages alleged against Magnum Property Investments, LLC, Strategic Magnum Holdings, Inc. and BDR, Inc., with leave to amend, and DENIED with respect to Peter Baer.

Defendants to provide notice.