USC INVESTMENTS LLC VS FARYAN AFIFI ET AL

Tentative Rulings

Case Number: BC678400    Hearing Date: May 3, 2021    Dept: 61

Defendants and Cross-Complainants Faryan and Leila Afifi’s Motion for leave to file Second Amended Cross-Complaint is DENIED.

I. MOTION FOR LEAVE TO AMEND

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

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

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

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

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

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

The Afifis ask for leave to amend their FAC to re-frame their quiet title claim, which this court previously adjudicated against them, to state a claim for a prescriptive easement over the subject land. (Motion Exh. 1.) The basis for the amendment is the discovery of the testimony of Miguel Cuevas, the gardener on the Afifi property during the tenure of its prior owners. (Afifi Decl. ¶¶ 4–5.) Cuevas told the Afifis that while performing work for the prior owners, he regularly landscaped and used the subject land for ingress and egress and to maintain the property. (Afifi Decl. ¶¶ 6–7.) Cuevas’s testimony about the use of the land before the Afifis purchased the property would allow them, the Afifis argue, to claim a five year period of adverse use necessary for a prescriptive easement claim. (Afifi Decl. ¶ 6.) The Afifis state they only discovered Cuevas in March 2021. (Afifi Decl. ¶ 5.)

USCI argues that this motion is an improper one for reconsideration of this court’s prior orders striking the prescriptive easement allegations from the complaint. This court granted USCI’s motion to strike the prescriptive easement claim with leave to amend on March 29, 2018, on the grounds that the alleged use was “not in the nature of an easement,” but is instead based on claims that the Afifis have “enclosed and possessed the land in question.” (Kapner v. Meadowlak Ranch Ass’n (2004) 116 Cal.App.4th 1182, 1186–87.) When the subsequent amended pleading failed to amend these allegations, the court on June 28, 2018, once more granted a motion to strike against the same allegations, this time without leave to amend.

Regardless of whether the motion is characterized as one for reconsideration or for leave to amend, its prescriptive easement claim is legally deficient and relies for its efficacy upon the omission of allegations contained in past pleadings that would otherwise militate against granting the relief sought. The operative pleading contains the allegation that the Afifis use of the land “included a fence around the area which excluded access to any other person and was a substantial enclosure.” (FAXC ¶ 57.) The Afifis cannot obtain an easement because that use of the land was in the nature of enclosure and possession. The proposed SAC omits this allegation and states that the use of the subject land included landscaping and irrigation “via fencing.” (Proposed SAXC ¶ 51.) But a party may not avoid the impact of a prior adverse ruling on the pleadings merely by omitting damaging allegations: “A plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false.” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 344.) Since there is no possibility for the Afifis to obtain the relief they seek based on previously admitted facts, to allow leave to amend would be futile.

The motion is therefore DENIED.

Case Number: BC678400    Hearing Date: September 09, 2020    Dept: 61

Plaintiff and Cross-Defendnat USC Invesetments, LLC’s Motion for Preliminary Injunction is DENIED.

1. PRELIMINARY INJUNCTION

USCI seeks a preliminary, mandatory injunction directing Defendants to remove an existing fence from USCI’s property. (Motion at p. 2.)

Code of Civil Procedure, section 526, subdivision (a) provides that the court “may” grant an injunction in the following cases:

(1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.

(2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.

(3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.

(4) When pecuniary compensation would not afford adequate relief.

(5) Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief.

(6) Where the restraint is necessary to prevent a multiplicity of judicial proceedings.

(7) Where the obligation arises from a trust.

(Code Civ. Proc., § 526, subd. (a).)

In determining whether to issue a preliminary injunction, a trial court considers: (1) the likelihood that the plaintiff will prevail on the merits of its case at trial, and (2) the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants a preliminary injunction. (Donahue Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232 Cal.App.4th 1171, 1177.) “‘The latter factor involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.’ [Citation.]” (Ibid.)

“The trial court's determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction.” (Butt v. State of California (1992) 4 Cal.4th 668, 678.)

“The judicial resistance to injunctive relief increases when the attempt is made to compel the doing of affirmative acts. A preliminary mandatory injunction is rarely granted, and is subject to stricter review on appeal.” (People ex rel. Herrera v. Stender (2012) 212 Cal.App.4^th 614, 630.) “The granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” (Ibid., internal quotation marks omitted.)[1]

1. LIKELIHOOD OF PREVAILING

USCI argues that the likelihood of prevailing factor weighs decidedly in its favor, as this court has already granted summary adjudication on their quiet title claim, thus rendering them entitled to the injunction prayed for in their complaint, in which Defendants are ordered to remove the fence from their property. (Motion at pp. 7–8.)

Defendants respond that although summary adjudication has been granted USCI as to their claim to the disputed land on which the fence sits, the fence is still implicated in their still-pending cross-claims for nuisance and emotional distress. (Opposition at pp. 4–6.)

Defendants’ argument on this point is without merit. Defendants in their cross-complaint do not seek injunctive relief allowing them to maintain the fence on that particular portion of property, and they offer no argument for the proposition that victory on their nuisance claim would somehow entitle the fence to remain. Defendants instead seek an injunction “preventing Cross-Defendants from allowing their dogs to run off-leash within a certain proximity of the Afifi Property.” (XC ¶ 36.) This injunctive relief, if granted, would not conflict with the injunction that USCI seeks here.

Accordingly, the court agrees with USCI that the likelihood of prevailing factor weighs in its favor.

1. BALANCE OF EQUITIES

USCI argues that the balance of equities favors granting their injunction because the fence’s presence is a continuing trespass upon their property, and the fence’s continuing presence makes it impossible for USCI to pursue plans to install walls that will mitigate the interaction between USCI’s dogs and Defendants. (Motion at pp. 8–10.) Conversely, USCI argues that the burden on Defendants for removing the fence is slight, and will likely cost them no more than $1,100.00 and take one day, based on the estimate of a contractor. (Motion at pp. 5­–6.)

Defendants counter that a fence has existed on the same ground for up to twelve years without complaint by USCI. (Opposition at p. 10.) Defendants also argue that the expense of removal is greater than USCI suggests, since the existence of a pool on their property would require the erection of a new fence, which, given the cost of replacing an older fence, could exceed $7,000.00. (Opposition Exh. 2.) Moreover, Defendants note that USCI’s proposed harms are mitigated by the fact that it seeks only preliminary or interim relief. (Opposition at pp. 6–7.)

The court agrees with Defendants that the balance of hardships on USCI’s petition for interim relief favors the maintenance of the status quo pending trial and judgment, rather than an immediate mandate for Defendants to remove the fence. USCI’s hardship is essentially nominal, as it has lived with a fence in that location for many years before bringing the present action. (Parnian Decl. ¶ 6.) Although USCI contends that it has plans to erect another barrier, its averments on that point are vague; Steven Hartunian merely declares an intent “to build a fence or wall on the USC Property’s side of the boundary line.” (Hartunian Decl. ¶ 5.) The court lacks basis to conclude that USCI’s intent on that score is concrete enough to tip the scale of equities.

Meanwhile, although Defendants are wrong to contend that the continuing pendency of their nuisance claims means they are “likely to prevail” on their entitlement to maintain the fence, the court acknowledges that the claims still pending before it involve cross-fence relations between the parties’ respective pets, and that a significant interim shift in the barriers between them risks complicating, rather than simplifying, the pending dispute.

USCI asserts that land is “unique” and it is entitled to regard any trespass to same as irreparable, such that money damages will not adequately compensate them. (Motion at p. 10.) But the case authority is against them on this point. “[A] court has discretion to balance the hardships and deny removal of an encroachment if it was innocently made and does not irreparably injure the plaintiff, and where the cost of removal would greatly exceed the inconvenience to the plaintiff by its continuance.” (Hirshfield v. Schwartz (2001) 91 Cal.App.4^th 749, 761.) Here, there is no argument that Plaintiffs erected the fence in bad faith. Nor has USCI made any showing as to substantial interim harm. Finally, Defendants are likely to suffer substantial hardship if the interim order is granted that is out of proportion to the interim benefit that USCI would gain.

In short, this is not the “extreme case” in which a mandatory preliminary injunction must issue.

The motion is DENIED.

Case Number: BC678400    Hearing Date: December 11, 2019    Dept: 61

Defendant and Cross-Complainants Leila Afifi and Faryan Afifi’s Motion for Relief from Summary Adjudication is DENIED.

I. MOTION FOR RELIEF FROM DEFAULT

Code of Civil Procedure section 473, subdivision (b) states:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken . . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment . . . unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.

Afifi moves to set aside this court’s grant of summary adjudication in favor of USCI on September 23, 2019, on the grounds that Afifi erroneously (but reasonably) failed to provide an authenticated survey of the Afifi property and of a parcel map showing the County’s estimation of the property’s size. (Motion at pp. 6–8.) Afifi presents a new declaration by a different surveyor, Erik Bowers, to fill in the gaps left by the prior motion.

No relief is proper under the above statute, as a careful reading of this court’s prior ruling ought to make clear. To be sure, the court based its ruling in part on Afifi’s failure to have the operative survey authenticated by a currently licensed surveyor, but also expressly stated that “even if this evidence was admissible,” the Afifis presented no evidence of when the County’s tract map that Afifi concurrently relied upon “was created, whether the fence bordering the disputed area existed at that time, or even whether the tract map had or has any role in the assessment of Defendants’ property taxes.” (9/23/19 Ruling at p. 10.) Although Afifi presents the Bowers declaration to attest to “the accuracy and authenticity of the same evidence presented by defendants and cross-complainants in opposition to their motion” (Motion at p. 6), it was not the lack of accuracy or authenticity that was alone fatal to Afifi’s claims, but the absence of any argument grounded in evidence linking those documents to Afifi’s payment of taxes on the disputed land. The failure to “properly advance an argument” is not excusable under section 473. (Garcia v. Hejmadi (1997) 58 Cal.App.4^th 674, 682.)

Accordingly, Afifi’s Motion for Relief from Summary Adjudication is DENIED.

Case Number: BC678400    Hearing Date: October 31, 2019    Dept: 61

Defendant and Cross-Complainant Leila Afifi’s Motion to Compel Further Responses to Requests for Admission from Plaintiff and Cross-Defendant USC Investments, LLC is GRANTED as to Requests No. 27–34, 42–44, 60, 62, and 63. Sanctions are awarded against USCI and its counsel in the amount of $1,661.

MOTION TO COMPEL FURTHER RESPONSES

“On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response,” if they contend the response is incomplete or that an objection is without merit. (Code Civ. Proc. § 2033.290, subd. (a).)

Afifi seeks further responses to Requests No. 27–34, 42–44, 60, 62, and 63, which concerned conditions on the property regarding the number of dogs and their noise. USCI responded that it did not reside on the property and lacked sufficient information to answer. (See Separate Statement.)

USCI argues that Afifi failed to adequately meet and confer before filing this motion. (Opposition at p. 2.) That effort consisted of the sending of one letter to USCI, following a return letter from USCI. (Afifi Decl. Exh. 3.) The letters explain Afifi’s attitude toward USCI’s objections and USCI’s rationale therefore. The court regards this exchange of letters as sufficient prelude to this motion.

USCI argues that in responding to the requests it would only be obtaining information from the actual resident on the property Patrcia Hartunian, who has already served discovery in this matter. (Opposition at pp. 4–5.)

USCI’s argument is without merit. Afifi may obtain admissions or denials from a party regarding matters already submitted to another, by virtue of the peculiar function that admissions are designed to serve.

Most of the other discovery procedures are aimed primarily at assisting counsel to prepare for trial. Requests for admissions, on the other hand, are primarily aimed at setting at rest a triable issue so that it will not have to be tried. Thus, such requests, in a most definite manner, are aimed at expediting the trial. For this reason, the fact that the request is for the admission of a controversial matter, or one involving complex facts, or calls for an opinion, is of no moment. If the litigant is able to make the admission, the time for making it is during discovery procedures, and not at the trial. Likewise, the fact that one party has unilaterally bound himself, via deposition, does not excuse the other party from being required to make an admission regarding the same facts. The issue is not disposed of until both parties are heard from.

(Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429, italics added.) Thus the fact that Hartunian has in other requests or interrogatories provided similar information is of little import. Afifi is entitled to responses from the LLC.

Accordingly, the Motion to Compel Further is GRANTED as to Requests for Admission No. 27–34, 42–44, 60, 62, and 63.

SANCTIONS

Statute provides that the court shall impose sanctions upon a party who unsuccessfully makes or opposes a motion to compel further discovery responses, absent substantial justification otherwise. (Code Civ. Proc. §§ 2030.300, subd. (d); 2031.310, subd. (h); 2033.290, subd. (d).)

Afifi asks for $6,138.50 in sanctions, representing 8.5 hours of work at $715 per hour, plus a filing fee of $61.00. (Afifi Decl. ¶ 7.) The court awards sanctions against USCI and its counsel in the amount of $1,661, consisting of four hours at $400 an hour, as well as the filing fee.