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This case was last updated from Los Angeles County Superior Courts on 06/08/2021 at 05:16:04 (UTC).

SHANTEL RAY, ET AL. VS CREATIVE INVESTMENT GROUP INC., ET AL.

Case Summary

On 12/20/2018 SHANTEL RAY filed a Personal Injury - Other Personal Injury lawsuit against CREATIVE INVESTMENT GROUP INC . This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are STEPHEN I. GOORVITCH and MICHAEL E. WHITAKER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******9266

  • Filing Date:

    12/20/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

STEPHEN I. GOORVITCH

MICHAEL E. WHITAKER

 

Party Details

Plaintiffs

GLASPIE VERLTON

DALTON ANTHONY

DYSON HOWARD

JACKSON DAWN

RAY DEWAYNE

LEE ANDRE

MENENDEZ WENDY

MILLER BOBBY

RAY SHANTEL

BROWN LATEFA

Defendants

CREATIVE INVESTMENT GROUP INC.

NEW HEAVEN & EARTH CHRISTIAN CNTR OF HOPE INC.

VANDENBURG KARL

SHEPHERD JIM

HOFFMAN MELVIN

VAN DEN BERG KARL

Attorney/Law Firm Details

Plaintiff and Defendant Attorneys

KIELER TYLER

2534 State St

San Diego, CA 92101

ABB WAYNE MARK

WORTHINGTON BRIAN

BUI BINH

 

Court Documents

Substitution of Attorney

4/19/2021: Substitution of Attorney

Substitution of Attorney

4/19/2021: Substitution of Attorney

Motion to Be Relieved as Counsel

4/13/2021: Motion to Be Relieved as Counsel

Opposition - OPPOSITION TO MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

4/8/2021: Opposition - OPPOSITION TO MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

Notice - NOTICE AMENDED NOTICE OF MOTION TO STRIKE

3/15/2021: Notice - NOTICE AMENDED NOTICE OF MOTION TO STRIKE

Motion to Strike (not initial pleading)

2/2/2021: Motion to Strike (not initial pleading)

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR LEAVE TO AMEND TO FILE FIRST AMENDED CO...)

12/3/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR LEAVE TO AMEND TO FILE FIRST AMENDED CO...)

Motion for Leave to Amend - MOTION FOR LEAVE TO AMEND COMPLAINT

11/4/2020: Motion for Leave to Amend - MOTION FOR LEAVE TO AMEND COMPLAINT

Motion to Be Relieved as Counsel

7/23/2020: Motion to Be Relieved as Counsel

Declaration - DECLARATION OF BRIAN P. WORTHINGTON

7/30/2020: Declaration - DECLARATION OF BRIAN P. WORTHINGTON

Proof of Service by Substituted Service

7/30/2020: Proof of Service by Substituted Service

Opposition - OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT

5/12/2020: Opposition - OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT

Declaration - DECLARATION IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES

6/1/2020: Declaration - DECLARATION IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES

Declaration - DECLARATION IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES

6/1/2020: Declaration - DECLARATION IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES

Answer

2/28/2019: Answer

Complaint

12/20/2018: Complaint

Order on Court Fee Waiver (Superior Court)

12/20/2018: Order on Court Fee Waiver (Superior Court)

Order on Court Fee Waiver (Superior Court)

12/20/2018: Order on Court Fee Waiver (Superior Court)

106 More Documents Available

 

Docket Entries

  • 09/20/2021
  • Hearing09/20/2021 at 09:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 09/08/2021
  • Hearing09/08/2021 at 08:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 05/04/2021
  • Docketat 08:30 AM in Department 56; Hearing on Motion to be Relieved as Counsel - Not Held - Taken Off Calendar by Party

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  • 04/27/2021
  • DocketAnswer (CREATIVE INVESTMENT GROUP, INC., KARL VAN DEN BERG AND MELVIN HOFFMAN?S ANSWER TO PLAINTIFFS? SECOND AMENDED COMPLAINT); Filed by Creative Investment Group INC. (Defendant)

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  • 04/26/2021
  • DocketAmended Complaint ( (2nd)); Filed by Shantel Ray (Plaintiff); Latefa Brown (Plaintiff); Andre Lee (Plaintiff) et al.

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  • 04/26/2021
  • DocketNotice of Ruling (Demurrer and Motion to Strike Plaintiffs' FAC); Filed by Creative Investment Group INC. (Defendant); Melvin Hoffman (Defendant); Karl Van Den Berg (Defendant)

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  • 04/21/2021
  • Docketat 08:30 AM in Department 56; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Held

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  • 04/21/2021
  • DocketMinute Order ( (Hearing on Demurrer - with Motion to Strike (CCP 430.10))); Filed by Clerk

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  • 04/19/2021
  • DocketSubstitution of Attorney; Filed by Anthony Dalton (Plaintiff)

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  • 04/19/2021
  • DocketSubstitution of Attorney; Filed by Wendy Menendez (Plaintiff)

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129 More Docket Entries
  • 12/20/2018
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

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  • 12/20/2018
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

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  • 12/20/2018
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

    Read MoreRead Less
  • 12/20/2018
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

    Read MoreRead Less
  • 12/20/2018
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

    Read MoreRead Less
  • 12/20/2018
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

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  • 12/20/2018
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Clerk

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  • 12/20/2018
  • DocketComplaint; Filed by Shantel Ray (Plaintiff); Latefa Brown (Plaintiff); Andre Lee (Plaintiff) et al.

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  • 12/20/2018
  • DocketSummons (on Complaint); Filed by Shantel Ray (Plaintiff); Latefa Brown (Plaintiff); Andre Lee (Plaintiff) et al.

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  • 12/20/2018
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

Case Number: 18STCV09266    Hearing Date: May 12, 2021    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SHANTEL RAY, et al.,

Plaintiffs,

vs.

CREATIVE INVESTMENT GROUP INC., et al.,

Defendants.

CASE NO.: 18STCV09266

[TENTATIVE] ORDER RE: MOTIONS TO BE RELIEVED AS COUNSEL

Date: May 12, 2021

Time: 8:30 a.m.

Dept. 56

FSC: September 8, 2021

Jury Trial: September 20, 2021

MOVING PARTIES: Tyler Kieler, Esq. (“Kieler”) and Brian P. Worthington, Esq. (“Worthington”)

Kieler and Worthington filed separate motions to be relieved as counsel for Plaintiff Howard Dyson (“Dyson”). Both motions are compliant with Cal. Rules of Court, Rule 3.1362.

DISCUSSION

The respective declarations of Kieler and Worthington set forth the reasons for the respective motions such as counsel has attempted to communicate with Dyson through phone calls, voicemail messages, text messages, and unsuccessful efforts to determine Dyson’s current physical and mailing address. The declarations of Kieler and Worthington both state that: (1) they cannot provide effective or adequate legal representation to Dyson because of his lack of communication; and (2) they have repeatedly attempted to contact Dyson for the last several months with no success.

The Court has discretion on whether to allow an attorney to withdraw, and a motion to withdraw will not be granted where withdrawal would prejudice the client. (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)

In light of the facts above, the Court GRANTS the respective motions of Worthington and Kieler to be relieved as counsel for Dyson.

Kieler is ordered to give notice of this ruling in its entirety to all interested parties.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 12th day of May 2021

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: 18STCV09266    Hearing Date: April 21, 2021    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SHANTEL RAY, et al.,

Plaintiffs,

vs.

CREATIVE INVESTMENT GROUP, INC., et al.,

Defendants.

CASE NO.: 18STCV09266

[TENTATIVE] ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT; MOTION TO STRIKE

Date: April 21, 2021

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Defendants Creative Investment Group, Inc (“CIG”).; Melvin Hoffman (Doe 1) (“Hoffman”); and Karl Van Den Berg (Doe 2) (“Van Den Berg”)

RESPONDING PARTIES: Plaintiffs Shantel Ray; Latefa Brown; Andre Lee; Dawn Jackson; Dewayne Ray; Howard Dyson; Wendy Menendez; Anthony Dalton; Bobby Miller; and Verlton Glaspie

The Court has considered the moving and opposition papers. No reply papers were filed. Any reply papers were required to have been filed and served at least five court days prior to the hearing under Code Civ. Proc. § 1005(b).

BACKGROUND

Plaintiffs filed the operative First Amended Complaint (“FAC”) alleging the following nine causes of action: (1) failure to provide habitable dwelling; (2) breach of covenant and right to quiet enjoyment; (3) intentional infliction of emotional distress; (4) violation of Los Angeles Municipal Code section 151.00 et seq.; (5) violation of Los Angeles Municipal Code section 161.903.3.2; (6) retaliatory eviction; (7) private nuisance; (8) unfair competition; and (9) negligence. Defendants filed a demurrer to each cause of action in the FAC, as well as a motion to strike portions of the FAC.

In their opposition to the demurrer, Plaintiffs state that they are willing to dismiss the fifth cause of action.

DEMURRER

A demurrer tests the sufficiency of a complaint as a matter of law. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) In analyzing a demurrer, the court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts. (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) A demurrer for uncertainty should not be sustained when the allegations of the complaint are sufficiently clear to apprise the defendant of the issues to which he is to meet. (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 605.) Such a demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. (Id.)

Issue No.1: First Cause of Action

To state a cause of action for breach of the implied warranty of habitability, a plaintiff must plead the following: (1) the existence of a materially defective condition affecting habitability; (2) the defective condition was unknown to the tenant at the time of occupancy; (3) the effect on habitability of the defective condition was not apparent upon a reasonable inspection; (4) notice was given to the landlord within a reasonable time after the tenant discovered or should have discovered the breach of warranty; and (5) the landlord was given a reasonable time to correct the defect while the defendant remained in possession. (Quevedo v. Braga (1977) 72 Cal.App.3d Supp. 1, 7-8.)

The Court finds that giving the allegations a liberal construction—despite Defendants’ arguments to the contrary—Plaintiffs have alleged that: (1) notice was given to Defendants about the conditions on the property; and (2) Defendants were given a reasonable time to correct such defect, as the FAC alleges that Plaintiffs made Defendants aware of the conditions on the property for a period of two years before filing this action. The Court also finds that the FAC is not uncertain as Defendants contend. If any uncertainty did exist, however, such uncertainty can be clarified through the discovery process under Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135. The FAC adequately apprises Defendants of the issues they must meet. The first cause of action is sufficiently alleged under Quevedo.

Therefore, the demurrer of Defendants to the first cause of action in the FAC is OVERRULED.

Issue No.2: Second Cause of Action

The implied covenant of quiet enjoyment and the implied covenant of good faith and fair dealing overlap to impose similar duties of care. (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 589.) A covenant of good faith and fair dealing is also implied in every contract, including leases. (Id.) Minor inconveniences and annoyances are not actionable breaches of the implied covenant of quiet enjoyment. (Id.) To be actionable, the landlords act or omission must substantially interfere with a tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy. (Id.) The perpetrator of the interference with the tenant’s quiet enjoyment need not be the landlord personally. (Id. at 590.)

The Court finds that the FAC sufficiently pleads facts to state a cause of action for breach of the implied covenant of quiet enjoyment.

The Court therefore OVERRULES the demurrer of Defendants to the second cause of action in the FAC.

Issue No.3: Third Cause of Action

The elements of cause of action for intentional infliction of emotional distress (“IIED”) are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) The conduct must be so outrageous that it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Id.) Insults, indignities, threats, annoyances, petty oppressions, or other trvialities do not give rise to liability for an IIED cause of action. (Id.) With respect to a cause of action for IIED, a plaintiff must specifically allege the acts which are so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Schlauch v. Hartford Accident & Indemnity Co. (1983) 146 Cal.App.3d 926, 936.)

The Court finds that Plaintiffs have stated a cause of action for IIED under Wilson.

The demurrer of Defendants to the third cause of action in the FAC is therefore OVERRULED.

Issue No.4: Fourth Cause of Action

As to the fourth cause of action, Defendants’ sole argument is that such claim is barred by the doctrine of res judicata because such claim could have been litigated in the unlawful detainer action brought by Defendants. (FAC at ¶ 60-67.) Initially, the Court finds that Defendants’ citation to Vella v. Hudgins (1977) 20 Cal.3d 251 is inapposite.

To invoke collateral estoppel, the following requirements must be met: (1) the issue necessarily decided in the previous proceeding is identical to the one that is sought to be relitigated; (2) the previous proceeding terminated with a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party to or in privity with a party in the previous proceeding. (Syufy Enterprises v. City of Oakland (2002) 104 Cal.App.4th 869, 878.)

Defendants fail to present evidence through a request for judicial notice that: (1) the unlawful detainer action terminated in a final judgment on the merits; or (2) the unlawful detainer action concerned identical issues sought to be litigated in this action. Thus, under Syufy, the Court finds that res judicata is not applicable to the fourth cause of action.

Defendants’ demurrer to the fourth cause of action is therefore OVERRULED.

Issue No.5: Fifth Cause of Action

Plaintiffs voluntarily dismiss the fifth cause of action according to their opposition papers. The demurrer of Defendants to the fifth cause of action in the FAC is therefore SUSTAINED WITHOUT LEAVE TO AMEND.

Issue No.6: Sixth Cause of Action

The sixth cause of action in the FAC is for retaliatory eviction arising under Civ. Code § 1942.5. Statutory causes of action must be pleaded with particularity under Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780. 795; however, the sixth cause of action is set forth in a conclusory manner and is not pleaded with sufficient particularity.

The demurrer of Defendants to the sixth cause of action in the FAC is therefore SUSTAINED with 20 days leave to amend.

Issue No.7: Seventh Cause of Action

To state a cause of action for private nuisance, a plaintiff must allege the following: (1) an invasion of the plaintiff’s use and enjoyment of the land that was substantial; (2) an interference with the plaintiff’s private use and enjoyment of the land; and (3) the interference is unreasonable in nature and duration. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938.)

The Court finds that Plaintiffs have stated a cause of action for private nuisance. The Court therefore OVERRULES the demurrer of Defendants to the seventh cause of action in the FAC.

Issue No.8: Eighth Cause of Action

Bus. & Prof. Code § 17200 prohibits any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising. To have standing under Section 17200 to sue Proposition 64 requires that a plaintiff have lost money or property to have standing to sue. (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 323.) The economic injury must have been a result of the unfair competition. (Id.) Section 17200 borrows violations from other laws by making them independently actionable as unfair competitive practices. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143.) Lost money or property—economic injury—is itself a classic form of injury in fact. (Kwikset Corp. v. Superior Court, supra, 51 Cal.4th 310, 323.) A plaintiff alleging unfair business practices is required to state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.)

Plaintiffs have stated a valid cause of action for unfair competition. Therefore, the demurrer of Defendants to the eighth cause of action in the FAC is OVERRULED.

Issue No.9: Ninth Cause of Action

To state a cause of action for negligence, a plaintiff must allege the following elements: (1) duty; (2) breach of duty; (3) proximate cause; and (4) damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.)

The ninth cause of action sufficiently states all the elements needed to state a claim for negligence. The Court, therefore, OVERRULES the demurrer of Defendants to the ninth cause of action in the FAC.

MOTION TO STRIKE

Defendants filed a motion to strike portions of the FAC as follows: (1) punitive damages claims; (2) references to treble damages; and (3) any reference to attorneys’ fees.

Legal Standard

Code Civ. Proc. § 436(a) allows a court to strike out any irrelevant, false, or improper matter inserted in any pleading. Code Civ. Proc. § 436(b) allows a court to strike out all or any part of a pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

Issue No.1: Punitive Damages

Civ. Code § 3294 authorizes punitive damages upon a showing of malice, fraud, or oppression. Malice is defined as either 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. (Civ. Code § 3294(c)(1).) Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331.) Civ. Code § 3294(c)(3) defines fraud as 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. Civ. Code § 3294(c)(2) defines oppression as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.)

The Court finds that the punitive damages allegations are sufficient to warrant the imposition of punitive damages against Defendants. The FAC alleges sufficient facts showing malice as contemplated by Civ. Code § 3294.

The Court therefore DENIES Defendants’ request to strike punitive damages allegations from the FAC.

Issue No.2: Treble Damages

Defendants contend that treble damages are inappropriate in this action.

The reference to treble damages is located at Paragraph 2 in the prayer for relief in the FAC and states that Plaintiff prays for treble damages under: (1) Code Civ. Proc. § 338; and (2) Code Civ. Proc. § 1947.11. The opposition states that the FAC inadvertently cited to Code Civ. Proc. § 1947.11 instead of Civ. Code § 1947.11.

The Court finds that Code Civ. Proc. § 338 does not reference treble damages and such statute is concerned with the statute of limitations. Moreover, the Court finds that Civ. Code § 1947.11 also does not reference treble damages and such statute is concerned with excess rents being charged.

Therefore, the Court GRANTS Defendants’ request to strike treble damages from the FAC with 20 days leave to amend.

Issue No.3: Attorneys’ Fees

Defendants contend that the FAC seeks attorneys’ fees pursuant to: (1) LAMC Ch. XV, Art.1 § 151.10(A); and (2) LA Ordinance Ord. No. 160.791. Despite Defendants’ argument to the contrary, LAMC § 151.10(A) does allow for reasonable attorneys’ fees. The fourth cause of action in the FAC states a sufficient claim arising under the Los Angeles Municipal Code and, therefore, Plaintiffs’ request for attorneys’ fees is proper.

The Court therefore DENIES Defendants’ request to strike attorneys’ fees references from the FAC.

The motion to strike is GRANTED IN PART with 20 days leave to amend based upon the Court’s discussion above.

Moving parties are ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 21st day of April 2021

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: 18STCV09266    Hearing Date: March 15, 2021    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SHANTEL RAY, et al.,

Plaintiffs,

vs.

CREATIVE INVESTMENT GROUP, INC., et al.,

Defendants.

CASE NO.: 18STCV09266

[TENTATIVE] ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT; MOTION TO STRIKE

Date: March 15, 2021

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Defendants Creative Investment Group, Inc.; Melvin Hoffman (Doe 1); and Karl Van Den Berg (Doe 2)

The Court has considered the moving papers. No opposition papers were filed.

BACKGROUND

Plaintiffs filed the operative First Amended Complaint (“FAC”) alleging the following nine causes of action: (1) failure to provide habitable dwelling; (2) breach of covenant and right to quiet enjoyment; (3) intentional infliction of emotional distress; (4) violation of Los Angeles Municipal Code section 151.00 et seq.; (5) violation of Los Angeles Municipal Code section 161.903.3.2; (6) retaliatory eviction; (7) private nuisance; (8) unfair competition; and (9) negligence.

Defendants filed an unopposed demurrer to each cause of action in the FAC as well as an unopposed motion to strike portions of the FAC.

Due to the lack of opposition, the demurrer of Defendants to the first through ninth causes of action in the FAC is SUSTAINED with 20 days leave to amend under Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 and Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410. If and when a Second Amended Complaint is filed—and if such pleading is deemed insufficient in connection with a demurrer filed by Defendants—the Court will consider sustaining such demurrer without leave to amend.

Due to the lack of opposition, Defendants’ motion to strike is GRANTED with 20 days leave to amend under Sexton.

Moving parties are ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 15th day of March 2021

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: 18STCV09266    Hearing Date: December 03, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SHANTEL RAY, et al.,

Plaintiffs,

vs.

CREATIVE INVESTMENT GROUP INC., et al.,

Defendants.

CASE NO.: 18STCV09266

[TENTATIVE] ORDER RE: MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT

Date: December 3, 2020

Time: 8:30 a.m.

Dept. 56

Jury Trial: September 20, 2021

MOVING PARTIES: Plaintiffs Shatel Ray; Latefa Brown; Andre Lee; Dawn Jackson; Dewayne Ray; Howard Dyson; Wendy Menendez; Anthony Dalton; Bobby Miller; and Verlton Glaspie

RESPONDING PARTIES: Defendants Creative Investment Group, Inc.; Melvin Hoffman (Doe 1); and Karl Van Den Berg (Doe 2)

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiffs’ complaint alleges the following causes of action: (1) failure to provide habitable dwelling; (2) breach of covenant and right to quiet enjoyment; (3) negligent infliction of emotional distress; (4) violation of Los Angeles Municipal Code, Section 151.00; (5) violation of Los Angeles Municipal Code, Section 161.903.3.2; (6) retaliatory eviction; (7) private nuisance; (8) unfair business practices; and (9) negligence.

Plaintiffs filed a motion (the “Motion”) for an order granting Plaintiffs leave to file a First Amended Complaint (“FAC”). The Motion states that the proposed FAC: (1) substitutes a cause of action for intentional infliction of emotional distress for the cause of action for negligent infliction of emotional distress; and (2) adds a claim for punitive damages. The Motion is compliant with California Rules of Court, Rule 3.1324.

In opposition to the Motion, Defendants advance the following arguments: (1) the Motion must be denied because it is untimely; (2) the Motion is not in the furtherance of justice; and (3) the Motion must be denied because the proposed amendment is highly prejudicial.

Initially, Defendants provide no legal authority to support their argument that the motion is untimely and such contention is waived. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.) Also, Plaintiffs can bring a motion for leave to amend at any time—either before or after commencement of trial—under Code Civ. Proc. § 576 and the Court finds the Motion is timely.

DISCUSSION

Code Civ. Proc. § 473 permits the trial court in its discretion to allow amendments to pleadings in the furtherance of justice. Code Civ. Proc. § 576 states that any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order. There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.) An application to amend a pleading is addressed to the trial judge’s sound discretion. (Id.) If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. (Morgan v. Superior Court of Cal. In and For Los Angeles County (1959) 172 Cal.App.2d 527, 530.)

Issue No.1: The Proposed FAC not Being in the Furtherance of Justice

In support of the argument that the proposed amendment is not in the furtherance of justice, Defendants only cite to Code Civ. Proc. § 473(a) but do not make a reasoned factual argument as to why allowing the proposed FAC to be filed would not be in the furtherance of justice. Plaintiffs are seeking to assert a different cause of action as well as seek punitive damages in the proposed FAC. Defendants have not shown that allowing a proper and timely amendment to a complaint would not be in the furtherance of justice.

Therefore, the Court finds Defendants’ argument on this point unpersuasive.

Issue No.2: Prejudice

Defendants contend that the Motion should be denied because the proposed amendment is highly prejudicial. Defendants, however, do not make a factual showing of prejudice as they only present arguments as to why prejudice exists[1]. The Court also finds that Plaintiffs were not dilatory in seeking leave to amend. Trial is not scheduled to commence until September of 2021.

Due to Defendants’ insufficient showing of prejudice, the Court finds that Defendants will not be prejudiced by the proposed FAC.

Issue No.3: Failure to State a Cause of Action

Defendants contend that the proposed FAC fails to state a cause of action against them and, as such, the Motion should be denied.

The failure of a proposed amendment to state facts sufficient to constitute a cause of action may support an order denying a motion to amend. (California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281.) That rule, however, finds its most appropriate application in cases where the insufficiency of the proposed amendment is established by controlling precedent and where the insufficiency could not be cured by further appropriate amendment. (Id.) The preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer. (Id. at 281.)

The Court finds that even if the proposed FAC was defective for failure to state a claim, the preferable and appropriate practice would be to allow the amendment and allow an attack to such pleading through a demurrer. Thus, the Court will allow Plaintiffs leave to amend the complaint. Defendants may attack the sufficiency of such pleading, if they wish, by a demurrer to the FAC.

The Court GRANTS the Motion. The Court orders Plaintiffs to file the proposed FAC—which is attached to the Motion and was not separately lodged —by the close of business on Monday, December 7, 2020 so that it becomes the operative pleading in this action.

Moving parties are ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 3rd day of December 2020

Hon. Holly J. Fujie

Judge of the Superior Court


[1] In law and motion practice, factual evidence is supplied to the court by way of declarations. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

Case Number: 18STCV09266    Hearing Date: October 01, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SHANTEL RAY, et al.,

Plaintiffs,

vs.

CREATIVE INVESTMENT GROUP INC., et al.,

Defendants.

CASE NO.: 18STCV09266

[TENTATIVE] ORDER RE: MOTION TO QUASH SERVICE OF SUMMONS

Date: October 1, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Specially-Appearing Defendant Karl Van den Berg (“Van den Berg”)

RESPONDING PARTIES: Plaintiffs Shantel Ray, Latefa Brown, Andre Lee, Dawn Jackson, Dewayne Ray, Howard Dyson, Wendy Menendez, Anthony Dalton, Bobby Miller, and Verlton Glaspie

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiffs’ complaint arises from alleged wrongful actions in connection with their tenancy at 805 West 57th Street, Los Angeles, CA 90037 (the “Subject Property”). On December 20, 2018, Plaintiffs filed a complaint against Defendants alleging causes of action for: (1) failure to provide habitable dwelling; (2) breach of covenant and right to quiet enjoyment; (3) negligent infliction of emotional distress; (4) violation of Los Angeles Municipal Code, Section 151.00; (5) violation of Los Angeles Municipal Code, Section 161.903.3.2; (6) retaliatory eviction; (7) private nuisance; (8) unfair business practices pursuant to California Business and Professions Code, Section 17200; and (9) negligence.

On February 26, 2020, Plaintiffs filed an amendment to the complaint in which they substituted “Karl Vandenburg” for “Doe 2.”

On April 21, 2020, Van den Berg filed a motion to quash service of summons. Van den Berg’s motion is made on the grounds that he was never personally served with the summons in this matter as required by California Code of Civil Procedure, Section 418.10(a) and therefore the Court lacks jurisdiction over him. Additionally, Van den Berg contends that the Doe Amendment, which substituted him for Doe 2 (erroneously as “Karl Vandenburg”) is improper as Plaintiffs have delayed to his prejudice in excess of 15 months when his identity was known to Plaintiffs.

On July 30, 2020, Department 32 of this Court issued an order transferring and reassigning this case to the Honorable Holly J. Fujie presiding in Department 56.

Declaration in Support of Motion

In support of his motion, Van den Berg provides a declaration setting forth that: (1) he was never served with the summons and complaint in this matter, and he was only aware that Plaintiffs are claiming that he was served with the summons and complaint in this matter because he found a copy of the summons and complaint on top of his mailbox at his residence on Sunday, March 8, 2020 (Van den Berg Decl. at ¶ 3); and (2) that he was never approached by a process server at his personal residence or place of business for Creative Investment Group, Inc. despite Plaintiffs being aware of his relationship with Creative Investment Group, Inc. (Id. at ¶4.)

In support of the reply brief, Van den Berg provides the declaration of his wife, Trudy Van den Berg who relevantly sets forth that: (1) she weighs approximately 250 pounds so no one in their right mind would mistake her for being 130 pounds (Trudy Van den Berg Decl. at ¶ 8); and (2) she probably was not even home on March 7, 2020 at 10:40 a.m. (Id. at ¶ 9.) Trudy Van den Berg contradicts her husband’s, Van den Berg’s, declaration as to when the documents were found, as she states that her husband obtained the documents with respect to this case from the top of their mailbox on the evening of March 7, 2020. (Id. at ¶¶ 5-6.)

Plaintiffs’ Evidence in Opposition to Motion to Quash

The proof of service of summons with respect to Van den Berg is attached as Exhibit 1 to Plaintiffs’ memorandum of points and authorities in opposition to Van den Berg’s motion. (Opposition at Exhibit 1.) A review of the proof of service indicates that Van den Berg (or Doe 2) was served via substitute service on March 7, 2020 at 10:40 a.m. (Id.) The proof of service states that the summons and complaint were left in the presence of Jane Doe, who is described as a White female, 55, 5”5, 130 pounds, and a co-occupant. The proof of service states that Van den Berg was served at 5757 Simpson Avenue in Valley Village, CA 91607. A declaration of due diligence is attached to the proof of service and indicates that three attempts were made to effectuate personal service. (Id.) The declaration of due diligence is signed by Jose Felix Nava (“Nava”) of One Legal. (Id.) Nava is a registered process server. (Id.)

EVIDENTIARY OBJECTIONS

The Court SUSTAINS Van der Berg’s evidentiary objections numbers 1-3 to the declaration of Tyler Kieler (“Kieler”).

DISCUSSION

“Proper service of process of a petition or complaint is the means by which a court obtains personal jurisdiction over a party.” (Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1206.) “Even undisputed actual notice of a proceeding does not substitute for proper service of the petition or complaint.” (Id.) “Personal service remains the method of choice under the statutes and the constitution.” (Olvera v. Olvera (1991) 232 Cal.App.3d 32, 41.) “When substituted or constructive service is attempted, strict compliance with the letter and spirit of the statutes is required.” (Id.) California Code of Civil Procedure, Section 418.10(a)(1) allows the Court to quash service of summons on the basis of lack of jurisdiction of the court over a defendant. A motion to quash must be made “on or before the last day of his or her time to plead or within any further time that the court may allow for good cause.” (Code Civ. Proc. § 418.10(a).) “Ordinarily . . . two or three attempts at personal service at a proper place should fully satisfy the requirement of reasonable diligence and allow substituted service to be made.” (Espindola v. Nunez (2988) 199 Cal.App.3d 1389, 1392.)

“Statutes governing substitute service shall be liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant.” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1201.) “If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . . a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age.” (Id.) A copy of the summons and complaint must then be mailed “by first-class mail, postage prepaid to the person to be served at the pace where a copy of the summons and complaint were left.” (Id. at 1201-1202.) “To be constitutionally sound the form of substituted service must be reasonably calculated to give an interested party actual notice of the proceedings and an opportunity to be heard . . . [in order that] the traditional notices of fair play and substantial justice implicit in due process are satisfied.” (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1416.) A trial court is not required to accept “self-serving evidence contradicting [a] process server’s declaration.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.) A filing of a process server’s declaration stating that service was effectuated creates a rebuttable presumption that service was proper. (Id.)

Issue No.1: Lawfulness of Service

After reviewing the evidence provided by the parties, the Court finds that the process server’s declaration is entitled to the presumption that service was proper. The Court references its recitation of Plaintiffs’ evidence from above. Based on the proof of service, the Court finds that substitute service was proper and was properly effectuated. The Court is not required to accept the self-serving evidence of Van den Berg. The evidence presented by Van den Berg does not rebut the presumption that service was proper.

Therefore, the Court finds that Van den Berg was properly served via substitute service and the Court thus has jurisdiction over him. Plaintiffs have shown that service of the summons and complaint was lawful.

Issue No.2: The Doe Amendment

“When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly.” (Code Civ. Proc. § 474.) A plaintiff may be barred from adding an individual in place of a “Doe” on the grounds of unreasonable delay in filing the amendment. (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066.) A defendant must show that: (1) the plaintiff was dilatory in seeking the “Doe” amendment; and (2) that the defendant suffered prejudice from any such delay. (Id.) “In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

Van den Berg contends that Plaintiffs delayed in excess of 15 months in substituting him for Doe 2 although his identity was known to Plaintiffs. The Court finds that Van den Berg has not presented any evidence of prejudice as required under A.N.

Therefore, the Court finds Van den Berg’s arguments with respect to the untimely “Doe” amendment are inapplicable due to the lack of evidence presented by Van den Berg with respect to prejudice.

The Court DENIES Van den Berg’s motion to quash service of summons in its entirety.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LA CourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 1st day of October 2020

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: 18STCV09266    Hearing Date: September 10, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

SHANTEL RAY, et al.,

Plaintiffs,

vs.

CREATIVE INVESTMENT GROUP INC., et al.,

Defendants.

CASE NO.: 18STCV09266

[TENTATIVE] ORDER RE: MOTION FOR LEAVE TO AMEND COMPLAINT; MOTIONS TO BE RELIEVED AS COUNSEL

Date: September 10, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Plaintiffs Shantel Ray, Latefa Brown, Andre Lee, Dawn Jackson, Dewayne Ray, Howard Dyson, Wendy Menendez, Anthony Dalton, Bobby Miller, and Verlton Glaspie

RESPONDING PARTY: Defendant Creative Investment Group Inc.

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiffs’ complaint arises from alleged wrongful actions in connection with their tenancy at 805 West 57th Street, Los Angeles, CA 90037 (the “Subject Property”). On December 20, 2018, Plaintiffs filed a complaint against Defendants alleging causes of action for: (1) failure to provide habitable dwelling; (2) breach of covenant and right to quiet enjoyment; (3) negligent infliction of emotional distress; (4) violation of Los Angeles Municipal Code, Section 151.00; (5) violation of Los Angeles Municipal Code, Section 161.903.3.2; (6) retaliatory eviction; (7) private nuisance; (8) unfair business practices pursuant to California Business and Professions Code, Section 17200; and (9) negligence.

On March 3, 2020, Plaintiffs filed a motion for an order granting Plaintiffs leave to file a First Amended Complaint (“FAC”) and to continue the presently scheduled trial date of June 18, 2020.

On July 23, 2020, Tyler Kieler (“Kieler”) filed a motion to be relieved as counsel for Plaintiff Howard Dyson (“Dyson”). On July 24, 2020, Brian Worthington (“Worthington”) filed a motion to be relieved as counsel for Dyson. The motions to be relieved as counsel indicate that the hearing date on both motions are set for December 9, 2020.

On July 30, 2020, Department 32 of this Court issued an order transferring and reassigning this case to the Honorable Holly J. Fujie presiding in Department 56. The July 30, 2020 order stated that “[a]ny pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.”

On August 5, 2020, the Court issued a notice of continuance of hearing with respect to the Trial Setting Conference. On August 6, 2020, Defendant filed and served notice of setting of hearing dates with respect to: (1) Defendant’s motion to compel further responses; (2) specially appearing Defendant Karl Van den Berg’s motion to quash; and (3) the Informal Discovery Conference (“IDC”).

The Court will address the respective motions filed by the parties in this one ruling.

The Motion for Leave to Amend

Plaintiffs’ motion for leave to amend is made on the grounds that: (1) after initially filing suit, Plaintiffs diligently investigated the facts and have now discovered additional facts warranting new causes of action and damages claims; (2) there are now more Plaintiffs who wish to pursue claims against Defendants; and (3) the new claims with respect to the new Plaintiffs all arise from the same set of common facts as those of the Plaintiffs who were named in the original complaint.

Defendant opposes Plaintiffs’ motion for leave to amend and contends that: (1) Plaintiffs unreasonably delayed bringing their motion for leave to amend and such delay prejudices Defendant; (2) Defendant will suffer prejudice in the form of additional discovery and costs if Plaintiffs’ motion is granted; and (3) Defendant will suffer prejudice if additional Plaintiffs are permitted to join this case.

Initially, the Court finds that Plaintiffs’ request for a trial continuance is moot as no trial date is currently set in this action.

Declaration in Support of Plaintiffs’ Motion for Leave to Amend

Plaintiffs provide a declaration from their counsel, Tyler Kieler (“Kieler”), whose declaration sets forth: (1) the effect of the proposed FAC (Kieler Decl. at ¶ 3); (2) the scope of Plaintiffs’ investigation that revealed facts giving rise to a cause of action for intentional infliction of emotional distress as well as punitive damages (Id. at ¶ 4); (3) the lack of prejudice from the proposed amendments (Id. at ¶ 6); and (4) that there has been no written discovery propounded by Defendants. (Id.)

MOTION FOR LEAVE TO AMEND

California Code of Civil Procedure, Section 473 permits the trial court in its discretion to allow amendments to pleadings in the furtherance of justice. California Code of Civil Procedure, Section 576 provides that “[a]ny judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” “There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding.” (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.) “An application to amend a pleading is addressed to the trial judge’s sound discretion.” (Id.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court of Cal. In and For Los Angeles County (1959) 172 Cal.App.2d 527, 530.) “Where no prejudice is shown to the adverse party, the liberal rule of allowance prevails.” (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564.) A judge may deny a motion for leave to amend where a plaintiff has been dilatory in seeking leave to amend and such delay has prejudiced defendant. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where amendment would: (1) cause a delay of trial; (2) increase preparation costs; (3) change the focus of the complaint; or (4) increase discovery burdens. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.)

Issue No. 1: Procedural Non-Compliance

California Rules of Court, Rule 3.1324 sets forth the necessary requirements with respect to a motion to amend a pleading. California Rules of Court, Rule 3.1324(b) states that a separate declaration must accompany the motion for leave to amend and such declaration must specify: (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. In the context of a motion for leave to amend, the moving party must provide a declaration stating what new facts were discovered that gave rise to the motion for leave to amend. (Waxman v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 668, 671.)

The Court refers to the declaration of Kieler from above. The Court finds that Plaintiffs’ motion is not complaint with California Rules of Court, Rule 3.1324. The declaration of Kieler does not state exactly when the facts giving rise to the amended allegations were discovered or why the request for amendment was not made earlier. Kieler also does not state why the proposed amendments are necessary and proper.

Therefore, the Court DENIES WITHOUT PREJUDICE Plaintiffs’ motion for leave to file a FAC.

Plaintiffs are ordered to give notice of this ruling with respect to the motion for leave to amend.

MOTIONS TO BE RELIEVED AS COUNSEL

Kieler seeks to be relieved as counsel for Dyson. Worthington also seeks to be relieved as counsel for Dyson. The motions to be relieved as counsel indicate that the motions will be heard on December 9, 2020; however, the Court’s reservation system has a hearing date of September 10, 2020 in connection with the motions. No notice of a September 10, 2020 hearing date was filed and served with respect to the motions to be relieved as counsel. Moreover, a review of the electronic court file does not indicate an order being mailed to all interested parties with respect to the September 10, 2020 hearing date on the motions to be relieved as counsel. Additionally, neither Kieler’s nor Worthington’s motions was filed with an accompanying proof of service.

The Court therefore DENIES WITHOUT PREJUDICE the motions of Kieler and Worthington to be relieved as counsel for Dyson. Kieler and Worthington are to re-file and re-notice their respective motions to be relieved as counsel for a date in October of 2020.

Kieler and Worthington are to give notice of this ruling with respect to their respective motions to be relieved as counsel for Dyson.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LA CourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 10th day of September 2020

Hon. Holly J. Fujie

Judge of the Superior Court

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