STUART LEE ZUBRICK VS SAHIBZADA AASIM AKHTAR

Tentative Rulings

Case Number: ****1071 Hearing Date: February 9, 2022 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AND RELATED CROSS-ACTION

MOVING PARTY: Plaintiff Stuart Lee Zubrick (“Plaintiff”)

RESPONDING PARTY: Defendant Sahibzada Aasim Akhtar (“Defendant”)

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

BACKGROUND

This action was initiated on February 17, 2017. The currently operative third amended complaint (the “TAC”) alleges: (1) quiet title; (2) slander of title; (3) breach of fiduciary duty; (4) intentional interference with contractual relations; (5) accounting; and (6) conversion.

Plaintiff filed a motion to bifurcate (the “Motion”) seeking to try the quiet title claims in a bench trial before trying the remainder of the claims before a jury.[1]

DISCUSSION

The trial court has the discretion to order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues in the furtherance of convenience, to avoid prejudice, or if separating the issues would be conducive to judicial expedition and economy. (Code Civ. Proc. 1048, subd. (b).) It is within the discretion of the court to bifurcate issues or order separate trials of actions, such as for breach of contract and bad faith, and to determine the order in which those issues are to be decided. (Royal Surplus Lines Ins. Co., Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 205.) Which issues and/or causes of action should be bifurcated, the order in which they should be tried, and whether separate juries are necessary are matters to be addressed by the court and the parties. (Id.)

While a litigant in a civil action generally has a constitutional right to jury trial on “legal” causes of action, there is no such right with respect to equitable causes of action. (Rincon EV Realty LLC v. CP III Rincon Towers, Inc. (2017) 8 Cal.App.5th 1, 19.) It is well-established that the court may decide equitable issues before submitting legal issues to a jury. (Hoopes v. Dolan (20008) 168 Cal.App.4th 146, 157.) Quiet title actions are equitable in nature. (Caira v. Offner (2005) 126 Cal.App.4th 12, 26.)

Plaintiff argues that the Court should bifurcate the quiet title claims in this case because quiet title actions are equitable in nature and do not require trial before a jury. Plaintiff argues that trying the equitable claims first will promote judicial efficiency because the Court will have narrowed the issues to be presented to a jury. The opposition (the “Opposition”) argues that Defendant has a right to a jury trial on all the claims alleged in the TAC and that bifurcating the trial will not promote judicial efficiency since this case does not raise complicated factual questions.

The Court finds that bifurcating the trial is appropriate in this case. There is no right to a jury trial on equitable claims and California jurisprudence has an established preference for trying equitable claims before legal claims. The Court therefore GRANTS the Motion. The first phase of the trial will begin on April 4, 2022 and will consist of a bench trial before the Court on the quiet title claims. The date for the jury trial on the legal claims will be set upon the conclusion of the first phase of trial.

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 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 stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

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 9th day of February 2022

Case Number: ****1071    Hearing Date: July 22, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant and Cross-Complainant Sahibzada Aasim Akhtar (“Defendant”)

RESPONDING PARTY: Plaintiff and Cross-Defendant Stuart Lee Zubrick, an individual, and as Trustee of the 2005 Stuart Lee Zubrick Revocable Trust as Amended and Restated dated August 22, 2013 (“Plaintiff”)

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

BACKGROUND

This is an action in which Plaintiff seeks to quiet title as to property located at 2617 Larmar Road, Los Angeles, CA 90068 (the “Larmar Property”) and 7360 Hollywood Boulevard, Los Angeles, CA 90046 (the “Hollywood Property”) (collectively, the “Properties”). Plaintiff filed the operative Third Amended Complaint (“TAC”) alleging causes of action for: (1)-(2) quiet title; (3)-(4) slander of title; (5) breach of fiduciary duty; (6) intentional interference with contractual relations; (7) accounting; and (8) conversion.

Defendant filed the operative Second Amended Cross Complaint (“SAXC”) alleging causes of action for: (1) breach of contract; (2) promissory fraud; (3) breach of the implied covenant of good faith and fair dealing; (4) interference with contract; (5) interference with prospective economic advantage; (6) unfair business practices under California Business and Professions Code, Section 17200 et seq.; and (7) unjust enrichment. The SAXC arises from alleged wrongful actions in connection with selling accounts receivables.

Brief Procedural History

On January 21, 2017, the Honorable Gregory Keosian sitting in Department 61 granted Plaintiff’s request for a Temporary Restraining Order (“TRO”) restraining Defendant from interfering with Plaintiff’s management and control of the Properties, and the Court indicated that no bond was required. The TRO required Plaintiff to provide an accounting of all funds collected or disbursed by August 10, 2017.

On August 31, 2017, the Honorable Gregory Keosian sitting in Department 61 of this Court granted Plaintiff’s preliminary injunction and required Plaintiff to post a bond in the amount of $50,000.00. On September 13, 2017, Plaintiff filed an undertaking and indicated that Plaintiff had posted the bond in the amount of $50,000.00.

On July 19, 2018, Defendant filed a motion to increase the amount of the $50,000.00 bond imposed by the Court as a condition of issuing the preliminary injunction. On October 4, 2018, the Honorable Gregory Keosian sitting in Department 61 of this Court denied Defendant’s motion to increase bond amount.

On January 31, 2019, Defendant filed a second motion to increase the bond amount, for an accounting of funds, and that the funds be placed in a neutral trust account or other blocked account. On April 10, 2019, the Honorable Holly J. Fujie sitting in Department 56 denied Defendant’s motion.

The Current Motion

Defendant filed a motion to appoint a receiver pursuant to California Code of Civil Procedure, Sections 564(a) and 564(b)(9) to: (1) take control and possession of the Properties; (2) take possession of the related documents and an accounting of all funds collected and spent; and (3) turn over funds related to the Properties. Defendant’s motion is made on the grounds that: (1) Plaintiff has defaulted on the payment of property taxes thus subjecting the Properties to penalties and/or forfeiture; (2) amount of rents collected and the purported expenses since the 2017 TRO is unknown; (3) Plaintiff has defaulted on insurance coverage thus failing to protect the interests of the parties; and (4) Plaintiff has not properly maintained the premises of the apartment building.

Defendant asserts that: (1) appointment of a receiver in aid of conserving and maintaining the Properties is proper in this case; and (2) cost of receivership should be borne by Plaintiff or from the proceeds of the rents collected. Defendant provides no legal authority to support the proposition that Plaintiff should bear the costs of receivership or that the cost of such receivership should come from the rents collected. As such, the Court finds that Defendant has waived such argument. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)

Plaintiff opposes Defendant’s motion on the grounds that: (1) Defendant is not entitled to a receiver and fails to submit any admissible evidence in support of his motion; (2) Defendant is not entitled to placement of funds in a neutral account or an accounting; (3) if a receiver is appointed, Defendant should be ordered to pay the cost of the receiver from his own pocket; and (4) Defendant has engaged in harassing counsel.

EVIDENTIARY OBJECTIONS

The Court SUSTAINS Plaintiff’s evidentiary objections numbers 1-26 to the evidence submitted by Defendant in connection with his motion for an order appointing a receiver.

The Court SUSTAINS Plaintiff’s evidentiary objections to the supplemental declarations and evidence presented in support of Defendant’s reply brief as such declarations and evidence are new evidence to which Plaintiff did not have an opportunity to respond. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Therefore, the Court will not consider any evidence filed in connection with the reply brief.

Defendant did not file any evidentiary objections to Plaintiff’s evidence in support of Plaintiff’s opposition.

DISCUSSION

California Code of Civil Procedure, Section 564(a) provides that “[a] receiver may be appointed, in the manner provided in this chapter, by the court in which an action or proceeding is pending in any case in which the court is empowered by law to appoint a receiver.” California Code of Civil Procedure, Section 564(b)(9) gives a court discretion to appoint a receiver when a receiver is necessary to preserve the property or rights of any party. “Trial courts have wide and broad discretion in appointment or receivers to take over the operation of a business.” (Barber v. Lewis & Kaufman, Inc. (1954) 125 Cal.App.2d 95, 99.) “[S]ection 564 of the Code of Civil Procedure authorizes the appointment of a receiver on the application of . . . any party whose right or interest in [a] property or funds is probable and where it is shown that the property or fund is in danger of being lost, removed or materially injured.” (Snidow v. Hill (1948) 84 Cal.App.2d 702, 704.) “[C]ourts have jurisdiction to appoint receivers for the purpose of preserving assets pendente lite.” (Delannoy v. Quetu (1925) 73 Cal.App.627, 636.) “If it appears that the party seeking the appointment has at least a probable right or interest in the property sought to be placed in receivership and that the property is in danger of destruction, removal or misappropriation, the appointment of a receiver will not be disturbed on appeal.” (Maggiora v. Palo Alto Inn, Inc. (1967) 249 Cal.App.2d 706, 710.) “The discretion of the trial court is so broad that an order based upon facts concerning which reasonable minds might differ with respect to the necessity for the receiver will not be reversed.” (Id. at 711, emphasis added.)

“Where the dispute in a litigation is as to the title to the property involved therein and it is made satisfactorily to appear that the property is of such a character or is in such a situation as that it is likely to be lost or destroyed or greatly deteriorated in value in the hands of the party in possession before the merits of the controversy can be adjudicated and a satisfactory showing is made that the [defendant] has some interest in the property, or that the [defendant’s] right thereto or to some portion thereof is reasonably certain, the court may . . . appoint a receiver to take custody of the property pending the litigation and the determination of the rights of the parties.” (Goes v. Perry (1941) 18 Cal.2d 373, 381.) “[T]he appointment of a receiver is a drastic remedy to be employed only in exceptional circumstances.” (City and County of San Francisco v. Daley (1993) 16 Cal.App.4th 734, 744.) “[R]eceivers are often legal luxuries, frequently representing an extravagant cost to a losing litigant. When it appears that no reasonably certain benefit will result to one litigant, and a distinct disadvantage will result to another, courts should weigh carefully the propriety of appointing a receiver.” (Id.) A receiver will not be appointed if another adequate remedy exists to protect the interest of the party requesting a receiver. (McNeil v. Graner (1949) 92 Cal.App.2d 371, 373.) “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.Ap.4th 216, 224.)

Issue No.1: Defendant’s Failure to Meet His Burden

Defendant’s Evidence in Support of Motion

Defendant declares that: (1) he owned and managed the Properties from 2015 when Plaintiff deeded them to him until the TRO in July of 2017 (Akhtar Decl. at ¶ 2); and (2) he has managed and owned several other single and multi-family units in Southern California over the years. (Id.)

Analysis

The Court finds that Defendant has not presented admissible evidence to warrant the appointment of a receiver. Defendant has failed to provide the Court with admissible evidence that: (1) the Properties are in danger of being lost, destroyed, removed, or misappropriated; (2) Defendant has a probable right or interest in the Properties; (3) no alternative remedy exists to protect Defendant’s interest except the appointment of a receiver; and (4) the appointment of a receiver is necessary to preserve Defendant’s rights and interests. Defendant has failed to provide the Court with factual evidence, pursuant to Calcor, to meet his burden to warrant the appointment of a receiver.

As such, the Court will not grant Defendant’s request to appoint a receiver. The Court need not address the arguments of Plaintiff that: (1) Defendant is not entitled to placement of funds in a neutral account or an accounting; and (2) if a receiver is appointed, Defendant should be ordered to pay the cost of the receiver from his own pocket.

While not necessary to the analysis of the appointment of a receiver, the Court will address Plaintiff’s contention that Defendant is harassing Plaintiff’s counsel. Plaintiff requests sanctions against Defendant for such harassment; however, Plaintiff provides no legal authority in support of such argument.

Issue No. 2: Harassment of Plaintiff’s Counsel

Plaintiff contends that Defendant has engaged in harassing Plaintiff’s counsel.

According to the declaration of Plaintiff’s counsel, Kari A. Keidser: (1) on April 16, 2020, Defendant faxed an inappropriate and harassing letter to Plaintiff’s counsel (Keidser Decl. at ¶ 7 and Exhibit G); (2) the letter states “Hey, you [f*****g b***h] I report you are [a**] to the State Bar and to the FBI. You will hear from them very soon. There are working on it from Wilshire office. They saw what you are doing. (How stupid can you be?) Which I have a PROFF it. Super lawyer my [A**].” (Id.); (3) she sent a letter via e-mail to Vip Bhola, who is Defendant’s counsel, with respect to the letter and he replied that his client had nothing to do with it and she requested that Defendant execute a declaration to the effect, but she received no reply to that request (Id. at ¶ 8 and Exhibit H); (4) Epps & Coulson’s fax system is electronic and registers each incoming and outgoing facsimile (Id. at ¶ 9); and (5) the incoming fax notification shows that the fax was sent by “AKHTAR JOLLY” Fax No. 818-831-7070. (Id. at ¶ 9.)

The Court will not issue sanctions against Defendant and his counsel. The Court, however, will consider issuing sanctions if the purported harassing behavior upon Plaintiff’s counsel reoccurs.

Based on the analysis set forth above, the Court DENIES Defendant’s motion for the appointment of a receiver.

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 CourtCall 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 22nd day of July 2020