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This case was last updated from Los Angeles County Superior Courts on 05/28/2019 at 02:34:29 (UTC).

SAMSON MICHAEL VS SIMONTOV ESHAGHIAN ET AL

Case Summary

On 08/24/2017 SAMSON MICHAEL filed a Contract - Other Contract lawsuit against SIMONTOV ESHAGHIAN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RANDOLPH M. HAMMOCK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3670

  • Filing Date:

    08/24/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RANDOLPH M. HAMMOCK

 

Party Details

Plaintiff and Petitioner

MICHAEL SAMSON

Defendants and Respondents

EMRANI YOUSEF

VENICE INVESTMENTS GROUP LLC

WESTERN COMMERCIAL FINANCE LLC

EMROANI EBRAHIM

ESHAGHIAN SIMONTOV

EMRANI YAHOUDA

EMRANI DAVID

DOES 1 TO 25

HILLCREST CENTER LLC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

SHOHET GEORGE A. ESQ.

MCMAHON BRIAN D

Defendant Attorney

BRAUN CRAIG DOUGLAS

 

Court Documents

Unknown

2/15/2018: Unknown

Unknown

3/7/2018: Unknown

PLAINTIFF?S NOTICE OF POSTING JURY FEES

3/19/2018: PLAINTIFF?S NOTICE OF POSTING JURY FEES

NOTICE OF HEARING ON DEMURRERS AND DEMURRERS OF WESTERN COMMERCIAL FINANCE, L.L.C. TO PLAINTIFF'S VERIFIED COMPLAINT, ETC

3/26/2018: NOTICE OF HEARING ON DEMURRERS AND DEMURRERS OF WESTERN COMMERCIAL FINANCE, L.L.C. TO PLAINTIFF'S VERIFIED COMPLAINT, ETC

Minute Order

5/2/2018: Minute Order

RULING

5/2/2018: RULING

OPPOSITION TO EX PARTE APPLICATION TO ALLOW FURTHER TIME TO REVIVE LIMITED LIABILITY COMPANY

7/30/2018: OPPOSITION TO EX PARTE APPLICATION TO ALLOW FURTHER TIME TO REVIVE LIMITED LIABILITY COMPANY

REQUEST OF WESTERN COMMERCIAL FINANCE, L.L.C. FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION; ETC.

7/30/2018: REQUEST OF WESTERN COMMERCIAL FINANCE, L.L.C. FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION; ETC.

PLAINTIFF'S EX PARTE APPLICATION TO EXTEND TIME FOR PLAINTIFF TO FILE AMENDED COMPLAINT; ETC.

7/30/2018: PLAINTIFF'S EX PARTE APPLICATION TO EXTEND TIME FOR PLAINTIFF TO FILE AMENDED COMPLAINT; ETC.

Minute Order

11/9/2018: Minute Order

Proof of Service by Mail

12/13/2018: Proof of Service by Mail

Objection

12/13/2018: Objection

Motion for Change of Venue

4/8/2019: Motion for Change of Venue

Motion to Strike (not initial pleading)

4/8/2019: Motion to Strike (not initial pleading)

NOTICE OF CASE MANAGEMENT CONFERENCE

12/1/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

Unknown

11/27/2017: Unknown

PROOF OF SERVICE SUMMONS

10/20/2017: PROOF OF SERVICE SUMMONS

SUMMONS

8/24/2017: SUMMONS

51 More Documents Available

 

Docket Entries

  • 04/11/2019
  • at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Trial Setting Conference - Held - Continued

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  • 04/11/2019
  • Minute Order ( (Trial Setting Conference)); Filed by Clerk

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  • 04/09/2019
  • Case Management Statement; Filed by Western Commercial Finance LLC (Defendant)

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  • 04/08/2019
  • Motion for Change of Venue; Filed by Simontov Eshaghian (Defendant)

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  • 04/08/2019
  • Request for Judicial Notice; Filed by Western Commercial Finance LLC (Defendant)

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  • 04/08/2019
  • Motion for Change of Venue; Filed by David Emrani (Defendant)

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  • 04/08/2019
  • Motion to Strike (not initial pleading); Filed by Western Commercial Finance LLC (Defendant)

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  • 04/08/2019
  • Request for Judicial Notice; Filed by David Emrani (Defendant)

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  • 03/18/2019
  • at 09:30 AM in Department 47, Randolph M. Hammock, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 03/12/2019
  • Notice (Association of Counsel); Filed by Samson Michael (Plaintiff)

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97 More Docket Entries
  • 10/04/2017
  • PROOF OF SERVICE SUMMONS

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  • 10/04/2017
  • Proof of Service (not Summons and Complaint); Filed by Samson Michael (Plaintiff)

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  • 10/04/2017
  • Proof of Service (not Summons and Complaint); Filed by Samson Michael (Plaintiff)

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  • 09/20/2017
  • Notice of Related Case; Filed by Samson Michael (Plaintiff)

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  • 09/20/2017
  • Notice of Related Cases

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  • 09/18/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 09/18/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 08/24/2017
  • SUMMONS

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  • 08/24/2017
  • Complaint; Filed by Samson Michael (Plaintiff)

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  • 08/24/2017
  • VERIFIED LLC MEMBER DERWATLVE COMPLAINT FOR: 1. BREACH OF FIDUCIARY DUTY AND AIDING AND ABETTING BREACH OF FIDUCIARY DUTY; ETC

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Tentative Rulings

Case Number: BC673670    Hearing Date: December 01, 2020    Dept: 47

Samson Michael, as Trustee of the Mishael Family Trust of 2004, derivatively on behalf of Hillcrest Center, LLC,

a California limited liability company v. Simontov Eshaghian, individually and as Trustee of the Eshaghian Family

 Trust dated November 8, 1995, et al.

 

MOTION FOR SUMMARY ADJUDICATION AS TO THE FIRST THROUGH FIFTH CAUSES OF ACTION OF PLAINTIFF’S FIRST AMENDED AND VERIFIED LLC MEMBER DERIVATIVE COMPLAINT

MOVING PARTY: Defendants Western Commercial Finance, LLC; Venice Investments Group, LLC; David Emrani; Ebrahim Emrani; Yahouda Emrani; and Yousef Emrani

RESPONDING PARTY(S): Plaintiff Samson Michael, as Trustee of The Mishael Family Trust of 2004

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendant Eshaghian, the other member of Hillcrest Center, LLC, drove the LLC into financial ruin and converted its real estate holdings to his own use, and conspired with co-Defendants to acquire the underlying loan and foreclose on the property. Defendant Eshaghian has filed a cross-complaint for judicial dissolution of Hillcrest Center, LLC.

Several Defendants move for summary adjudication of the first through fifth causes of action. Defendant Simontov Eshaghian has filed a notice of joinder.

TENTATIVE RULING:

Defendants’ motion for summary adjudication is DENIED.

Defendant Simontov Eshaghian’s joinder is DENIED.

DISCUSSION:

Joinder

A notice of joinder must be filed pursuant to the same deadlines as the papers for which the joinder was made. (Seee.g.Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 719; see also Grieves v. Superior Court (1982) 157 Cal.App.3d 159, 163 n.3 [noting that “the trial court treated [defendant’s] notice of joinder as a motion”].) 

Defendant’s joinder was not filed timely. The initial papers were not filed until September 18, 2020 for a hearing date of October 22, 2020 – far less notice than CCP § 437c(a) requires. This is also not a timely filing for the continued hearing date of December 1 (74 days). Defendant also did not file his separate statement until November 4, 2020, far too late for a December 1 hearing.

Accordingly, the notice of joinder of Simontov Eshaghian is DENIED.

Motion for Summary Adjudication

Defendants’ Request for Judicial Notice

Defendants’ requests that the Court take judicial notice of 18 documents and 4 statements of fact.

Defendants’ request is DENIED as to the statements of fact in Request Nos. Q through T. Defendants have shown no basis on which those statements are subject to judicial notice, apart from any judicially noticeable document that might establish those facts.

Request Nos. A, C, D, E, F, G, H, I, J, K, L, N, O, P, and V are GRANTED per Evidence Code § 452(d) (court records).

Request Nos. B [certificate of status] and M [certificate of revivor] are GRANTED. The Court may take judicial notice of a business entity’s corporate status as reflected in the Secretary of State’s records. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1286.)

Request No. U [trustee’s deed upon sale] is GRANTED per Evidence Code § 452(c) (official acts of executive departments).

Plaintiff’s Request for Judicial Notice

Plaintiff requests judicial notice of six documents filed in this case. These requests are GRANTED per Evidence Code § 452(d) (court records).

Analysis

“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.) Once the moving party has met that burden, section 437c shifts the burden to the opposing party to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. If the opposing party cannot do so, summary judgment should be granted. (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

When deciding whether to grant summary judgment or adjudication, 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. (Ibid.)

Issue No. 1: “Defendants are entitled to judgment in their favor on the first cause of action of the first amended complaint for breach of fiduciary duty and aiding and abetting breach of fiduciary duty because the cause of action is barred by the applicable statute of limitation.”

Defendants argue that this cause of action is barred by the applicable statute of limitations because Plaintiff Michael – and by extension the entity on whose behalf he is suing, Hillcrest Center, LLC – knew of the facts giving rise to the claims alleged in the 1AC no later November 23, 2015, when the original complaint was filed. (Motion, at p. 5; Defendants’ Amended Separate Statement of Undisputed Material Facts (“UMF”) No. 11; RJN Exhs. A, F, N [complaint, 1AC, and first amended and verified LLC member derivative complaint].)

If Defendants are correct that Plaintiff and Hillcrest knew of the facts giving rise to the 1AC no later than November 23, 2015, this cause of action (and any others with three-year statutes of limitations) would be barred if the suit was not brought by November 23, 2018. Plaintiff did file the 1AC on August 24, 2017, before the expiration of the statute of limitations (even as to the cause of action subject to a two-year limitations period). However, Defendants present evidence that Hillcrest was suspended by the California Secretary of State effective November 2, 2015 and not revived until December 19, 2018. (Defendants’ Amended Separate Statement of Undisputed Material Facts (“UMF”) Nos. 2, 3; RJN Exh. B [certificate of status]; RJN Exh. M [certificate of revivor].) Thus, they argue that this cause of action is barred because Hillcrest was not revived before the statute of limitations expired.

A plea of lack of capacity of a corporation to maintain an action by reason of a suspension of corporate powers for nonpayment of its taxes is a plea in abatement, which is disfavored by the law. Such a plea is to be strictly construed and must be supported by facts warranting the abatement at the time of the plea. . . .

However, substantive defenses accruing during corporate suspension may not be applied to the benefit of the now-revived corporation. . . . For example, the statute of limitations is regarded as a substantive defense, not a procedural right. . . . Revival cannot be given a retroactive effect so as to permit the filing of an action at a time of incapacity to toll the running of the statute of limitations. In other words, if an action is commenced during the period of suspension and the corporate powers are revived after the limitations period expires, the revival does not toll the running of the limitations period. . . . In such a case, the plea is not one in abatement, but a plea of the statute of limitations--a substantive defense to the action on the merits.

(Benton v. County of Napa (1991) 226 Cal.App.3d 1485, 1491, bold emphasis added.)

Plaintiff concedes, for purposes of this motion, that the statute of limitations began to run on November 23, 2015. Thus, there is no dispute, for purposes of this motion, as to the timing of Plaintiff’s relevant knowledge. Plaintiff argues, however, that Defendants’ argument does not reflect that he is suing derivatively on behalf of Hillcrest, as trustee of his trust that owns membership units in Hillcrest. Therefore, Plaintiff argues that it is irrelevant that Hillcrest lacked capacity to sue for some period of time.

Plaintiff is correct that the cases cited by Defendants – including Benton, above – involve direct actions by corporations, not derivative actions. Defendants argue, however, that shareholders stand in the shoes of the corporation in a derivative action and cannot have greater rights than the corporation itself. (Reply, at p. 5.)

Although Defendants are correct that shareholders in a derivative action essentially stand in the shoes of the corporation for most purposes, there are exceptions. For example, even a dissolved corporation “continues to exist for the purpose of . . . prosecuting and defending actions by or against it.” (Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 212.) Likewise, shareholders in a dissolved corporation are not denied the right to bring a derivative action by the dissolution; the shareholders “continue to exist and have rights and potential liabilities with respect to the dissolved corporation.” (Id. at 215.)

Here, Defendants have cited to no binding authority establishing that a shareholder derivative suit that is filed within the applicable statute of limitations is barred if the corporation on whose behalf it was brought was suspended and not revived until after the limitations period expired. “A shareholder derivative suit is an action in equity.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 127.) Therefore, as a court of equity, the Court must “make a proper adjustment of the ‘rights, equities, and interests’ of all of the parties involved.” (Ibid.) The Court is not convinced that the equities favor dismissing this cause of action based on the corporation’s suspended status, given the dearth of authority directly on point. Viewing this matter in the light most favorable to Plaintiff, the Court concludes that Defendants have not met their burden to show that their affirmative defense based on the statute of limitations bars this cause of action.

If Defendants had made this showing, the Court would have concluded that Plaintiff did not come forward with evidence demonstrating a triable issue of material fact. Plaintiff conceded all of the relevant dates, and Plaintiff’s allegedly disputed facts would not alter the conclusions that would flow from those dates if Defendants had made their showing. Defendants have not done so, however.

Accordingly, the motion for summary adjudication is DENIED as to Issue No. 1.

Issue No. 2: “Defendants are entitled to judgment in their favor on the second cause of action . . . for constructive fraud and aiding and abetting constructive fraud because the cause of action is barred by the applicable statute of limitation.”

Issue No. 3: “Defendants are entitled to judgment in their favor on the third cause of action . . . for intentional interference with contract because the cause of action is barred by the applicable statute of limitation.”

Issue No. 4: “Defendants are entitled to judgment in their favor on the fourth cause of action . . . for interference with prospective economic advantage because the cause of action is barred by the applicable statute of limitation.”

Issue No. 5: “Defendants are entitled to judgment in their favor on the fifth cause of action . . . for conversion because the cause of action is barred by the applicable statute of limitation.”

Defendants rely on the identical allegedly undisputed material facts for each of these issues and the identical arguments.

Accordingly, for the reasons discussed in connection with Issue No. 1, the motion is DENIED as to Issue Nos. 2 through 5.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: December 1, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Case Number: BC673670    Hearing Date: December 19, 2019    Dept: 47

Samson Michael, as Trustee of the Mishael Family Trust of 2004, derivatively on behalf of Hillcrest Center, LLC,

a California limited liability company v. Simontov Eshaghian, individually and as Trustee of the Eshaghian

Family Trust dated November 8, 1995, et al.

  

MOTION TO STRIKE PORTIONS OF FIRST AMENDED AND VERIFIED LLC MEMBER COMPLAINT

MOVING PARTY: Defendants Venice Investments Group, LLC; David Emrani; Ebrahim Emrani; Yahouda Emrani; and Yousef Emrani

RESPONDING PARTY(S): Plaintiff Samson Michael, as Trustee of The Mishael Family Trust of 2004, derivatively on behalf of Hillcrest Center, LLC.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendant Eshaghian, the other member of Hillcrest Center, LLC, drove the LLC into financial ruin and converted its real estate holdings to his own use, and conspired with co-Defendants to acquire the underlying loan and foreclose on the property. Defendant Eshaghian has filed a cross-complaint for judicial dissolution of Hillcrest Center, LLC.

Defendants Venice Investments Group, LLC; David Emrani; Ebrahim Emrani; Yahouda Emrani; and Yousef Emrani move to strike portions of Plaintiff’s First Amended and Verified LLC Member Derivative Complaint.

TENTATIVE RULING:

Defendants Venice Investments Group, LLC; David Emrani; Ebrahim Emrani; Yahouda Emrani; and Yousef Emrani’s motion to strike is GRANTED without leave to amend as to all of the moving defendants as to the prayer for attorney’s fees.

The motion to strike is GRANTED without leave to amend as to Defendant Venice Investments Group, LLC as to the punitive damages allegations in ¶¶ 52, 58, 65, 71, 76, and the prayer for punitive damages.

The motion to strike is also GRANTED as to the individual defendants (David Emrani, Ebrahim Emrani, Yahouda Emrani, and Yousef Emrani) as to the punitive damages allegations in ¶¶ 52, 58, 65, 71, 76, and the prayer for punitive damages.

Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing. If he does not, no leave to amend will be given.

DISCUSSION:

Motion to Strike

Meet and Confer

The Declaration of Attorney Craig D. Braun reflects that the meet and confer requirement set forth in CCP § 435.5(a) was satisfied.

Request For Judicial Notice

Defendants’ requests that the Court take judicial notice of (1) the First Amended and Verified LLC Member Derivative Complaint in this action and (2) the Notice of Ruling on Motion to Strike filed in this action are GRANTED per Evidence Code § 452(d) (court records).

Discussion

The motion to strike is GRANTED without leave to amend as to all of the moving defendants as to the prayer for attorney’s fees. Plaintiff has not alleged any basis for an award of fees and does not oppose striking this prayer as to all of the moving defendants.

The motion to strike is GRANTED without leave to amend as to Defendant Venice Investments Group, LLC as to the punitive damages allegations in ¶¶ 52, 58, 65, 71, 76, and the prayer for punitive damages. As to the corporate defendant (Venice Investments Group, LLC), Plaintiff’s allegations are insufficient under Civil Code § 3294(b), which requires particular allegations when punitive damages are sought against a corporation, including that 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(b).) Plaintiff does not oppose striking these allegations or the prayer for punitive damages as to Venice Investments Group, LLC.

As to the individual defendants (David Emrani, Ebrahim Emrani, Yahouda Emrani, and Yousef Emrani), Plaintiff’s allegations as to punitive damages are also insufficient under Civil Code § 3294. Punitive damages may be awarded in connection with a breach of fiduciary duty claim, if Plaintiff provides that Defendants acted with malice, oppression, or fraud. (Cleveland v. Johnson (2012) 209 Cal.App.4th 1315, 1345 [holding that the “jury was at liberty to award punitive damages in connection with the defendants’ breach of fiduciary duty”].) Constructive fraud can likewise support a punitive damages award if the facts so warrant. (Stokes v. Henson (1990) 217 Cal.App.3d 187, 197-198.) Here, however, Plaintiff’s allegations against the individual Emrani defendants are one step removed even from these torts: they involve aiding and abetting Simontov Eshaghian in committing them. (Complaint ¶¶ 17, 50, 56.) “Liability may . . . be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person.” (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1325–1326.) To impose punitive damages for these actions, however, Plaintiff must meet the requirements of Civil Code § 3294. In focusing primarily on Defendant Eshaghian’s “egregious misconduct” (Complaint ¶ 17), Plaintiff’s allegations as to the Emrani Defendants do not rise to the level of “oppression, fraud, or malice” necessary for punitive damages.

“Malice” is defined as conduct “intended to cause injury to the plaintiff or despicable conduct . . . carried on . . . with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294(c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id. § 3294(c)(2).) “Fraud” is “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.” (Id. § 3294(c)(3).)

Here, Plaintiff alleges, in essence, ordinary business decisions as to the Emrani Defendants:

These alleged actions do not rise to the level of malice, oppression, or fraud. In addition, although Plaintiff alleges harm from some of these actions, he does not allege the Emrani Defendants’ intent to cause these injuries. (E.g., ¶ 28 – “The Defendants’ actions drove Hillcrest out of business”; ¶ 32 – “The combined effect of Defendants harming the Plaintiff financially and certain temporary operating issues caused Hillcrest to be unable to fully pay the monthly mortgage payment”; ¶ 42 – “This further depressed the desirability and value of the Property”; ¶ 43 – “The Emranis’ actions irreparably damaged Hillcrest’s tenant relationships and frustrated its ability to operate the center profitably”). Plaintiff alleges that these Defendants “aided and abetted [Eshaghian’s] wrongdoing with full knowledge of Eshaghian’s egregious misconduct” (¶ 17; see also ¶¶ 50, 56), but that is not enough to render the Emrani Defendants liable for punitive damages. Nor is the conclusory allegation that they “pursued the course of conduct alleged above intentionally and maliciously with the sole intention of furthering their own economic interests at the expense of Hillcrest and Plaintiff.” (¶ 52.)

There is only one specific allegation in the complaint as to an individual Emrani Defendant: “Yahouda Emrani . . . denied having ‘any relationship with the current owner of the property’ when, in fact, the Emranis had been in business with Eshaghian for years.” (¶ 37.) This does not rise to the level of fraud necessary for punitive damages; as with the allegations above, there is no indication that Yahouda Emrani made this statement “with the intention . . . of thereby depriving a person of property or legal rights or otherwise causing injury.” (Id. § 3294(c)(3).)

Accordingly, the motion to strike the punitive damages allegations and prayer for relief is GRANTED as to the individual Emrani Defendants. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff must demonstrate this possibility at the hearing as to the punitive damages allegations as to the individual Emrani Defendants. If he does not, no leave to amend will be given.

Moving Party to give notice, unless waived.

IT IS SO ORDERED.

Dated: December 19, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org

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