Search

Attributes

This case was last updated from Los Angeles County Superior Courts on 06/03/2019 at 04:51:08 (UTC).

WORKERS MOUNTAIN VALLEY ASSEMBLY LLC VS CITY OF SAN FERNANDO

Case Summary

On 11/02/2017 WORKERS MOUNTAIN VALLEY ASSEMBLY LLC filed an Other lawsuit against CITY OF SAN FERNANDO. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DANIEL S. MURPHY. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2254

  • Filing Date:

    11/02/2017

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Other

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DANIEL S. MURPHY

 

Party Details

Plaintiff and Petitioner

WORKER'S MOUNTAIN VALLEY ASSEMBLY LLC

Defendants and Respondents

SAN FERNANDO CITY OF

DOES 1 TO 50

CITY OF SAN FERNANDO

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

NICK J. DAVID ESQ.

NICK J DAVID

Defendant Attorney

DE LOS ANGELES MARTIN PATRICK

 

Court Documents

OPPOSITION TO DEMURRER TO COMPLAINT;

2/13/2018: OPPOSITION TO DEMURRER TO COMPLAINT;

OBJECTIONS TO DECLARATION OF LANCE H. OLSON;

2/13/2018: OBJECTIONS TO DECLARATION OF LANCE H. OLSON;

REPLY IN SUPPORT OF CITY OF SAN FERNANDO'S DEMURRER

2/26/2018: REPLY IN SUPPORT OF CITY OF SAN FERNANDO'S DEMURRER

DEFENDANT CITY OF SAN FERNANDO'S RESPONSE TO PLAINTIFF?S OBJECTIONS TO DECLARATION OF LANCE H OLSON

3/1/2018: DEFENDANT CITY OF SAN FERNANDO'S RESPONSE TO PLAINTIFF?S OBJECTIONS TO DECLARATION OF LANCE H OLSON

DEFENDANT'S DEMURRER TO COMPLAINT

3/5/2018: DEFENDANT'S DEMURRER TO COMPLAINT

Minute Order

3/5/2018: Minute Order

NOTICE OF RULING SUSTAINING DEFENDANT CITY OF SAN FERNANDO?'S DEMURRER TO COMPLAINT WITHOUT LEAVE TO AMEND

3/12/2018: NOTICE OF RULING SUSTAINING DEFENDANT CITY OF SAN FERNANDO?'S DEMURRER TO COMPLAINT WITHOUT LEAVE TO AMEND

JUDGMENT OF DISMISSAL AFTER SUSTAINING OF DEMURRER TO COMPLAINT WITHOUT LEAVE TO AMEND

3/13/2018: JUDGMENT OF DISMISSAL AFTER SUSTAINING OF DEMURRER TO COMPLAINT WITHOUT LEAVE TO AMEND

NOTICE OF ENTRY OF JUDGMENT OR ORDER

3/21/2018: NOTICE OF ENTRY OF JUDGMENT OR ORDER

MEMO COSTS SUMMARY

4/5/2018: MEMO COSTS SUMMARY

Order

10/5/2018: Order

Minute Order

10/5/2018: Minute Order

NOTICE OF RESCHEDULED HEARING ON DEMURRER TO PLAINTIFF'S COMPLAINT

1/8/2018: NOTICE OF RESCHEDULED HEARING ON DEMURRER TO PLAINTIFF'S COMPLAINT

NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOAQUIN VAZQUEZ

12/29/2017: NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOAQUIN VAZQUEZ

DEFENDANT'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT; DECLARATION OF LANCE H. OLSON; DECLARATION OF MARTIN DE LOS ANGELES

12/29/2017: DEFENDANT'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT; DECLARATION OF LANCE H. OLSON; DECLARATION OF MARTIN DE LOS ANGELES

NOTICE OF CASE MANAGEMENT CONFERENCE

12/14/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

Minute Order

12/7/2017: Minute Order

SUMMONS

11/2/2017: SUMMONS

11 More Documents Available

 

Docket Entries

  • 10/09/2018
  • Notice (OF RULING ONPLAINTIFF WORKERS'S MOUNTAIN VALLEY ASSEMPLY LLC'S MOTION TO TAX COSTS); Filed by City of San Fernando (Defendant)

    Read MoreRead Less
  • 10/05/2018
  • at 08:31 AM in Department 78; Hearing on Motion to Tax Costs - Held - Motion Denied

    Read MoreRead Less
  • 10/05/2018
  • Order (on plaintiff Worker's Mountain Valley Assembly, LLC's Motion to Tax Costs); Filed by Clerk

    Read MoreRead Less
  • 10/05/2018
  • Minute Order ( (Hearing on Motion to Tax Costs)); Filed by Clerk

    Read MoreRead Less
  • 10/05/2018
  • Minute order entered: 2018-10-05 00:00:00; Filed by Clerk

    Read MoreRead Less
  • 09/24/2018
  • DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO TAX COSTS, ETC

    Read MoreRead Less
  • 09/24/2018
  • Opposition Document; Filed by City of San Fernando (Defendant)

    Read MoreRead Less
  • 04/25/2018
  • Motion to Tax Costs; Filed by Worker's Mountain Valley Assembly, LLC (Plaintiff)

    Read MoreRead Less
  • 04/06/2018
  • at 08:30 AM in Department 78; Case Management Conference - Not Held - Advanced and Vacated

    Read MoreRead Less
  • 04/06/2018
  • Minute order entered: 2018-04-06 00:00:00; Filed by Clerk

    Read MoreRead Less
32 More Docket Entries
  • 12/07/2017
  • at 11:00 AM in Department 32; (Affidavit of Prejudice; Case is reassigned) -

    Read MoreRead Less
  • 12/07/2017
  • Minute order entered: 2017-12-07 00:00:00; Filed by Clerk

    Read MoreRead Less
  • 12/07/2017
  • Minute Order

    Read MoreRead Less
  • 12/04/2017
  • Challenge To Judicial Officer - Peremptory (170.6); Filed by Worker's Mountain Valley Assembly, LLC (Plaintiff)

    Read MoreRead Less
  • 12/04/2017
  • PEREMPTORY DISQUALIFICATION OF JUDGE DANIEL S. MURPHY PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 170.6.

    Read MoreRead Less
  • 11/28/2017
  • Notice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 11/28/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 11/02/2017
  • COMPLAINT FOR DECLARATORY RELIEF TO DETERMINE VALIDITY OF LOCAL ORDINANCE; AND FOR PRELIMINARY AND PERMANENT INJUNCTION.

    Read MoreRead Less
  • 11/02/2017
  • Complaint; Filed by Worker's Mountain Valley Assembly, LLC (Plaintiff)

    Read MoreRead Less
  • 11/02/2017
  • SUMMONS

    Read MoreRead Less

Tentative Rulings

Case Number: BC682254    Hearing Date: April 29, 2021    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

FRANCES ATKINS;

Plaintiffs,

vs.

ST. CECILIA CATHOLIC SCHOOL (ERRONEOUSLY SUED AS ST. CECILIAS SCHOOL), et al.;

Defendants.

Case No.:

19STCV02947

Hearing Date:

April 29, 2021

[TENTATIVE] RULING RE:

DEFENDANT ST. CECILIA CATHOLIC SCHOOL’S mOTION for summary judgment

Defendant St. Cecilia Catholic School’s Motion for Summary Judgment is GRANTED.

Factual Background

This is an age discrimination action. The Complaint alleges as follows. Plaintiff Frances Atkins (“Atkins”) was previously employed by Defendants St. Cecilia School and The Roman Catholic Archbishop of Los Angeles doing business as St. Cecilia School (“St. Cecilia”). (Compl. ¶ 6.) Atkins was terminated from her position at St. Cecilia on June 27, 2018 due to her age. (Compl. ¶ 6.)

procedural history

Plaintiff filed the Complaint on January 1, 2019, alleging two causes of action:

  1. Age discrimination

  2. Failure to provide records to employee

On March 29, 2020, Plaintiff the First Amended Complaint (“FAC”), alleging the same two causes of action.

The Court held various IDCs with both parties.

On January 10, 2020, this Court imposed monetary sanctions of $3,000 against Defendant St. Cecilia for discovery violations.

On March 18, 2020, the parties executed and filed a Stipulation to Continue Trial Date from May 26, 2020 to September 1, 2020.

On July 22, 2020, the parties executed and filed a Stipulation to Continue Trial Date to May 17, 2021.

On August 6, 2020, Plaintiff filed a Request for Dismissal as to Defendant Roman Catholic Archbishop of Los Angeles.

On January 13, 2021, Defendant St. Cecilia filed the instant Motion.

On April 15, 2021, Plaintiff filed an Opposition.

On April 23, 2021, St. Cecilia filed a Reply.

Discussion

  1. OBJECTIONS

    St. Cecelia objects to various evidence submitted by Atkins in support of her Oppositions. Objections Nos. 1, 3-13 are SUSTAINED. The remainder are OVERRULED.

    Atkins objects to various evidence submitted by St. Cecilia in support of its Motions. Objections No. 2 is SUSTAINED. The remainder are OVERRULED.

  2. MOTION FOR SUMMARY JUDGMENT

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

    The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

    Neither a moving or responding party may rely on the mere allegations or denials of its pleadings. A moving party must submit specific admissible evidence showing that the responding party cannot establish at least one element of his, her or its cause of action or defense. The responding party, to defeat the motion, must submit specific admissible evidence showing that a triable issue of material fact does exist as to that element of the cause of action or defense. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

    The “Golden Rule” on a motion for summary judgment or summary adjudication is that “if [a fact] is not set forth in the separate statement, it does not exist.” (Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1477, citing United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.).

  1. Ministerial Exception

Defendant St. Cecilia argues that it is entitled to summary judgment on the remaining First Cause of Action for Age Discrimination[1] because the “ministerial exception” bars Plaintiff’s claim against St. Cecilia as a religious institution. (Motion at p. 14.)

St. Cecilia bases its argument on 2020 Supreme Court case, Our Lady of Guadalupe School v. Morrissey-Berru (2020) 140 S.Ct. 2049. However, despite St. Cecilia’s suggestion, many courts have determined that “Morrissey-Berru did not introduce a new understanding of any other aspect of the religious autonomy doctrine. Instead, as Moody implicitly acknowledges, the Supreme Court reiterated principles it had previously elaborated in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171[.]” (Garrick v. Moody Bible Institute (N.D. Ill., Oct. 13, 2020, No. 18 C 573) ---F.Supp.3d--- at fn.2.)

In Hosanna-Tabor, the EEOC brought a claim against Petitioner Hosanna-Tabor Evangelical Lutheran Church and School (“Hosanna-Tabor Church”) on behalf of Cheryl Perich (“Perich”), a “called teacher” who was designated as a “commissioned minister.” (Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (2012) 565 U.S. 171.) Perich taught secular subjects and a religion class, led daily student prayer and “devotional exercises”, and took students to weekly school-wide chapel services. (Id.) After taking disability leave following a diagnosis of narcolepsy, the congregation “voted to rescind Perich’s call, and Hosanna-Tabor sent her a letter of termination.” (Id.) The Supreme Court held that there is a “ministerial exception,” grounded in the First Amendment, to Title VII of the Civil Rights Act of 1964 “and other employment discrimination laws,” regarding a religious organization’s rights to “select its ministers[.]” (Id. at 188.) The court held that the ministerial exception applied in the case of Hosanna-Tabor because Perich possessed “a significant degree of religious training followed by a formal process of commissioning,” she “held herself out as a minister,” and her “job duties reflected a role in conveying the Church's message and carrying out its mission[.]” (Id. at 192.)

In Morrissey-Berru, the Supreme Court addressed a similar situation. Agnes Morrissey-Berru (“Agnes”) was employed by Our Lady of Guadalupe School ( “Our Lady”), a Roman Catholic Primary School, as a fifth-sixth grade teacher. (Morrissey-Berru, supra, 140 S.Ct. at 2056.) Agnes taught all subjects, including religion, prepared her students for Mass and communion and confession, prayed with the students, and signed an employment contract agreeing to “model and promote” Catholic “faith and morals,” and to participate in “school liturgical activities.” (Id. at 2056-2057.) After Our Lady asked Agnes to change from a full-time to a part-time position, the school declined to renew her contract. (Id. at 2057.) The Court found, relying on the ruling in Hosanna-Tabor, that Agnes qualified for the ministerial exception set forth in Hosanna-Tabor because Agnes “performed vital religious duties,” even though her position did not include the title “Minister” and she had less formal religious training. (Id. at 2066.) The Court concluded that it “declined to adopt a ‘rigid formula’ in Hosanna-Tabor, and the lower courts have been applying the exception for many years without such a formula.” (Id. at 2069.)

Here, St. Cecelia argues that Atkinsfalls squarely within the ministerial exception thereby barring Plaintiff’s claim against St. Cecilia for age discrimination.” (Motion at p. 15.) St. Cecilia presents evidence that Atkins worked at St. Cecilia from 1978 to June 2018, and “While Plaintiff was employed as a secretary for the majority of her career at St. Cecilia, Plaintiff worked as a part-time art teacher in her final school year.” (DMF ¶ 21.) St. Cecilia contends that Atkins admitted to “adhering to actively supporting and conducting herself ‘in accordance with the philosophy and mission of the Church/School while performing’ her work.” (DMF ¶ 29.)

In Opposition, Atkins argues that the ministerial exception does not apply to her and relies heavily on Su v. Stephen S. Wise Temple (2019) 32 Cal.App.5th 1159, reh'g denied (Apr. 2, 2019), review denied (June 19, 2019), cert. dismissed (2019) 140 S.Ct. 341. There are several issues with this. First, Su v. Stephen S. Wise Temple, is considered questionable law because it may have been overruled by Morrisey-Bessu. Su was decided in 2019, prior to Morrisey-Bessu, and the holding is based primarily on whether the at-issue employee was sufficiently considered to be a “minister.” The court in Su found that a preschool teacher at the “early-childhood center” (“ECC”) at Stephen S. Wise Temple was not a “minister,” as defined by Hosanna-Tabor because the Temple did not hold out its ECC teachers as “ministers,” the ECC teachers were not required to have formal Jewish education or training, and the ECC teachers did not hold themselves out to be ministers. (Id. at 1168.) “[I]t was central to Hosanna-Tabor’s analysis that a minister is not merely a teacher of religious doctrine—significantly, he or she “personif[ies]” a church's (or synagogue's) beliefs and “minister[s] to the faithful.” (Hosanna-Tabor, supra, 565 U.S. at pp. 188–189, 196, 132 S.Ct. 694.) The record in the present case is clear that the Temple's teachers did not play such a role in synagogue life.” (Ibid.)

However, Morrisey-Berru largely overruled this particular line of reasoning. The court in Morrisey-Berru explicitly sought to distance itself from the requirement that an employee be titled or held out as a “minister.” (Morrissey-Berru, supra, 140 S.Ct. at 2063-2064.) The court further diminished the requirement of the employee holding “rigid academic requirements[.]” (Id. at 2064 [Elementary school teachers often teach secular subjects in which they have little if any special training. In addition, religious traditions may differ in the degree of formal religious training thought to be needed in order to teach”].) Instead, the court focused on “what an employee does.” (Id.) “[I]mplicit in our decision in Hosanna-Tabor was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” (Id.)

In her separate statement, Atkins contends that she “was merely trying to have her students act with moral behavior,” rather than preparing students to live in a “Christ-like” manner. (PMF ¶ 34; Atkin Decl., ¶ 10.) However, this statement directly contradicts Atkins’ deposition. Since at least D’Amico v. Board of Medical Examiners (1974) 11 Cal.3rd 11, 21-22, in opposing a summary judgment motion “A party cannot create an issue of fact by a declaration that contradicts his discovery responses” (Shin v. Hahn (2007) 42 Cal.4th 482, 502, fn. 17.)

Atkins stated in her deposition that while she was working as a substitute teacher or teaching visual arts, she “just made sure it was upheld that they did Christ-like things whatever they needed to be done.· If their behavior was not Christ-like, I would say it's not Christ-like.” (Def. Evid., Exh. C, 83:12-15.) Atkins also stated that “We practiced Catholic faith every day we came into the class.” (Def. Evid., Exh. C, 87:3-4.) Atkins referenced the school’s handbook to define “Christ-like” to mean “acknowledging their faith, we prayed. Promote the meaning of the liturgy and the sacraments, that was taught in Religion.” (Def. Evid., Exh. C, 83:9-11.) Atkins further explained: “if there was something we were doing in the class, we would talk about that and go over the information that was received from the Religion class. Perform moral formation in Jesus Christ, talked always about Jesus is the way to go Jesus. Follow him, don't follow man. Prepare the Christian to live in the community to participant actively in the life and the mission of the church.” (Def. Evid., Exh. C, 87:12-19.)

Therefore, St. Cecilia has presented extensive evidence that Atkins has performed various duties within her employment at St. Cecilia that qualifies her for the ministerial exemption. Morrisey-Berru instructs this Court to focus on what “an employee does.” (Morrissey-Berru, supra, 140 S.Ct. at 2064.) Given this, St. Cecilia’s evidence, particularly Atkins’ own deposition, supports a finding that Atkins’ role at St. Cecilia included “perform[ing] vital religious duties, such as educating [the] students in the Catholic faith and guiding [the] students to live their lives in accordance with that faith” and in accordance with the religious tenants of the school. (See, Id. at 2064.)

Whether Atkins is not actually a “minister,” as argued by Atkins, is no longer central to the analysis, following the ruling in Morrissey-Berru. (See, Oppo. at p. 12.) Further, all the cases cited by Atkins to support her argument either preceded the decision in Morrissey-Berru or are not binding on this court (such as the cases Atkins cites from Massachusetts and New Jersey state courts). (See, Oppo. at pp. 12-13.) Atkins fails to cite any current, binding authority to support a finding that her claims in this case are outside the ministerial exception.

Accordingly, the Motion for Summary Judgment is GRANTED.

DATED: April 29, 2021

________________________________

Hon. Robert S. Draper

Judge of the Superior Court


[1] [1] St. Cecilia contends in its MSJ that the parties stipulated to dismiss The Roman Catholic Archbishop of Los Angeles, a corporation and the Second Cause of Action. (Motion at p. 5.) In her Opposition Separate Statement, Plaintiff concedes that the First Cause of Action for Age Discrimination is the sole remaining cause of action. (Oppo. Sep. Statement at p. 1.)

Case Number: BC682254    Hearing Date: April 28, 2021    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

SIMON PALAGASHVILI:

Plaintiff,

vs.

IGOR POLTAVSKI, et al.;

Defendant.

AND RELATED CROSS-ACTIONS

Case No.:

BC682254

Hearing Date:

April 28, 2021

[TENTATIVE RULING]

cross-defendant joseph zelyeny’s motion for order vacating entry of default on first amended cross-complaint

Cross-Defendant Joseph Zelyeny’s Motion for Order Vacating Entry of Default on First Amended Cross-Complaint is GRANTED.

FACTUAL ALLEGATIONS

This is an action for fraud, breach of contract, and quiet title. The Complaint alleges as follows. Plaintiff Simon Palagashvili (“Palagashvili”) entered into an agreement with Defendant Igor Poltavski (“Poltavski”) to purchase a plot of land in Baldwin Park for the purpose of cultivating cannabis. (Complaint ¶ 10.) Poltavski repeatedly represented to Palagashvili that he would obtain the necessary permits, and Palagashvili repeatedly emphasized the importance of obtaining the permits. (Complaint ¶¶ 10–12.) Based on this understanding, Palagashvili invested significant resources into the property through 2017 and 2018. (Complaint ¶¶ 13–15.) In February 2018, Poltavski informed Palagashvili that he had not obtained the permits, and Palagashvili in turn refused to conduct the cultivation business without them. (Complaint ¶ 18.) Despite being a 50% owner of the land, Poltavski demanded that Palagashvili vacate the property. (Complaint ¶ 18.)

Poltavski’s Cross-Complaint (or “XC”) alleges that Palagashvili owes Poltavski several thousand dollars for expenses incurred in forming the investment agreement on the property at issue. (XC ¶ 11.)

procedural history

Palagashvili filed the Complaint on June 4, 2018, alleging six causes of action:

  1. Intentional Misrepresentation

  2. Rescission and Restitution

  3. Quiet Title

  4. Breach of Contract

  5. Conversion

  6. Goods Sold and Delivered

Defendants filed an Answer on July 19, 2018.

Poltavski filed a Cross-Complaint on July 19, 2018, alleging three causes of action:

  1. Account Stated

  2. Breach of Oral Contract

  3. Declaratory Relief

On June 20, 2019, this Court granted Plaintiff’s Motion to Quash Business Records Subpoena to Circle of Hope Alliance.

On January 9, 2020, this Court granted Poltavski’s Motion for Leave to File a First Amended Cross-Complaint.

On January 14, 2020, Poltavski filed a First Amended Cross-Complaint (“FAXC”), alleging four causes of action:

  1. Account stated

  2. Breach of oral contract

  3. Declaratory relief

  4. Quiet title to real property

On June 9, 2020, this Court entered default against Cross-Defendant Joseph Zelyeny (“Zelyeny”).

On December 8, 2020, Zelyeny filed the instant Motion for Order Vacating Entry of Default.

On April 13, 2021, Poltavski filed an Opposition.

On April 21, 2021, Zelyeny filed a Reply.

DISCUSSION

  1. OBJECTIONS

Zelyeny submits a single objection to the entire Declaration of Brenton Horner. While the Court agrees that Horner’s declaration consists largely of hearsay statements, Zelyney’s objection is not submitted in the proper procedure as to specific portions of the declaration. Accordingly, Objection No. 1 is DENIED.

  1. MOTION TO VACATE DEFAULT JUDGMENT

The Court entered default against Zelyeny on June 9, 2020. On December 8, 2020, Zelyeny filed the instant Motion for Order Vacating Entry of Default.

  1. Code of Civil Procedure 473(b) Mandatory/Discretionary Relief

    Civil Code of 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.¿¿

    “The statute includes a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right. Although this bifurcation is not demarcated in any internal subtitling, it is plainly evident in the textual structure of the statute.¿Section 473, subdivision (b), begins with broad language authorizing¿relief from a ‘judgment, dismissal, order, or other proceeding’ for ‘mistake, inadvertence, surprise, or excusable neglect,’ and then, in narrower proviso language applicable to a ‘default,’ ‘default judgment’ or ‘dismissal,’ requires relief upon the filing of an ‘attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.’ The mandatory relief provision fits into the broader language of the statute as a special case tucked within it. ‘The provision of¿section 473 which¿mandates relief from a judgment of dismissal or default when the motion is based on an¿attorney's affidavit of fault does not mandate relief from other judgments. In all other cases, relief is discretionary.” (Minick v. City of Petaluma¿(2016) 3 Cal.App.5th 15, 25–26.)¿

    Here, Zelyeny’s attorney does not submit a declaration of fault claiming that the mistake, inadvertence, surprise as his own error. (Galanter Decl.) Accordingly, mandatory relief is not available. For mandatory relief, default must be caused by the attorney. (Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 909.) 

    However, Zelyeny submits a declaration declaring that he had no knowledge of the substituted service, which was made at his workplace, because he was working from home full-time since late February 2020 due to Covid-19. (Zelyeny Decl., ¶ 3.) Zelyeny also declares that when he received a deposition subpoena in this case the year prior, in January 2019, before he was served in this case. He states that at that time, he informed Poltavski’s attorney that “he should not attempt to deliver or serve any other documents to me at work, but instead should use my residence address stated above.” (Zelyeny Decl., ¶ 5.) Zelyeny declares that he was served at home with another subpoena in this case, but no documents pertaining to the cross-complaint were served on him at his home. (Zelyeny Decl., ¶ 5.) Zelyeny declares that he had no knowledge that he had been served until September 2020 when Palagashvili and his attorney informed him of the default. (Zelyeny Decl., ¶ 7.)

    The Cross-Complaint in this action was filed on July 19, 2018 against Palagashvili and Alexsandr Blanovsky. The First Amended Cross-Complaint was filed on January 14, 2020, also against only Palagashvili and Blanovsky. On March 11, 2020, Poltavski filed an Amendment to the Cross-Complaint, naming Zelyeny as Doe No. 1. On April 29, 2020, Poltavski filed a Proof of Service of Summon indicating that Zelyeny had been served by substituted service on March 16, 2020 at the address of Zelyeny’s workplace.

    In Opposition, Poltavski argues that Zelyeny knew that he had been served, and declares that on August 27, 2020, Palagashvili’s attorney Douglas Galanter, told him that he was aware of the default against Zelyeny and that he was representing him. (Horner Decl. ¶¶ 6-7.) First, the Court finds that the Declaration of Brenton Horner consists nearly entirely of hearsay statements. Second, even if the Court were to consider the truth of the alleged statements, these statements do no contradict Zelyeny’s declaration. Poltavski has presented no evidence that Zelyeny knew of the lawsuit between the time of service in March 2020 and the entry of default in June 2020.The fact that the proof of service for Zelyeny was also served on Galanter, who was serving as counsel for Cross-Defendant Palagashvili, does not establish that Galanter represented Zelyeny at the time of service or informed Zelyeny of the service at that time.

    Therefore, the Court finds that Zelyeny has presented sufficient argument and evidence to support this Court granting discretionary relief from default.

    Accordingly, the Motion to Vacate Entry of Default is GRANTED.

DATED: April 28, 2021

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC682254    Hearing Date: September 18, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

SIMON PALAGASHVILI:

Plaintiff,

vs.

IGOR POLTAVSKI, et al.;

Defendant.

AND RELATED CROSS-ACTIONS

Case No.:

BC682254

Hearing Date:

September 18, 2020

[TENTATIVE RULING]

Plaintiff Simon Palagashvili’s Motion for order (1) expunging lis pendens; (2) in the alternative, setting evidentiary hearing under ccp 405.32; and (3) awarding plaintiff attorneys’ fees

Plaintiff Simon Palagashvili’s Motion Expunging Lis Pendens is MOOT. The Court awards attorneys’ fees of $3,640 in favor of Plaintiff.

FACTUAL ALLEGATIONS

This is an action for fraud, breach of contract, and quiet title. The Complaint alleges as follows. Plaintiff Simon Palagashvili (“Palagashvili”) entered into an agreement with Defendant Igor Poltavski (“Poltavski”) to purchase a plot of land in Baldwin Park for the purpose of cultivating cannabis. (Complaint ¶ 10.) Poltavski repeatedly represented to Palagashvili that he would obtain the necessary permits, and Palagashvili repeatedly emphasized the importance of obtaining the permits. (Complaint ¶¶ 10–12.) Based on this understanding, Palagashvili invested significant resources into the property through 2017 and 2018. (Complaint ¶¶ 13–15.) In February 2018, Poltavski informed Palagashvili that he had not obtained the permits, and Palagashvili in turn refused to conduct the cultivation business without them. (Complaint ¶ 18.) Despite being a 50% owner of the land, Poltavski demanded that Palagashvili vacate the property. (Complaint ¶ 18.)

Poltavski’s Cross-Complaint (or “XC”) alleges that Palagashvili owes Poltavski several thousand dollars for expenses incurred in forming the investment agreement on the property at issue. (XC ¶ 11.)

procedural history

Palagashvili filed the Complaint on June 4, 2018, alleging six causes of action:

  1. Intentional Misrepresentation

  2. Rescission and Restitution

  3. Quiet Title

  4. Breach of Contract

  5. Conversion

  6. Goods Sold and Delivered

Defendants filed an Answer on July 19, 2018.

Poltavski filed a Cross-Complaint on July 19, 2018, alleging three causes of action:

  1. Account Stated

  2. Breach of Oral Contract

  3. Declaratory Relief

On June 20, 2019, this Court granted Plaintiff’s Motion to Quash Business Records Subpoena to Circle of Hope Alliance.

On January 9, 2020, this Court granted Poltavski’s Motion for Leave to File a First Amended Cross-Complaint.

On January 14, 2020, Poltavski filed a First Amended Cross-Complaint (“FAXC”), alleging four causes of action:

  1. Account stated

  2. Breach of oral contract

  3. Declaratory relief

  4. Quiet title to real property

On August 24, 2020, Plaintiff filed the instant Motion to Expunge Lis Pendens.

On August 28, 2002, Poltavski filed a Notice of Withdrawal of Notice of Pendency of Action (Lis Pendens).

On September 4, 2020, Poltavski filed an Opposition.

On September 11, 2020, Palagashvili filed a Reply.

DISCUSSION

  1. OBJECTIONS

Plaintiff submits objections to exhibits submitted by Poltavski in support of the Opposition. Objections Nos. 1-2 are OVERRULED.

  1. MOTION TO EXPUNGE LIS PENDENS

“‘A lis lis lis Kirkeby

“The potential for a notice of lis lis

  1. Validity of the Real Property Claim

    A real property claim is any cause of action “which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility.”  (Code Civ. Proc., § 405.4.)  

    Code Civ. Proc. section 405.32 provides that “[i]n proceedings under this chapter, the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim.”  Further, “The court shall not order an undertaking to be given as a condition of expunging the notice if the court finds the claimant has not established the probable validity of the real property claim.” (Code Civ. Proc., § 405.32.) 

    In this case, the Complaint is regarding a different property than the one at-issue in this Motion. The Complaint is regarding property located at 5138 Gayhurst Ave. (“Gayhurst Property”), Baldwin Park, of which Poltavski is 50% owner. (Compl. ¶¶ 10, 12.) However, this Motion is regarding a lis pendens recorded on property located at 8023 Oakdale Ave., Los Angeles (“Oakdale Property”). (Motion at p. 4.) The Motion argues that on April 4, 2018, Palagashvili acquired the Oakdale property with non-party Joseph Zelyeny (“Zelyeny”) in joint-tenancy. (Motion at p. 2; Galanter Decl., Exh. A.)

    Here, Poltavski recorded a lis pendens on the Oakdale Property on February 22, 2019. (Galanter Decl., Exh. C.) In this Motion, Plaintiff Palagashvili argues that that the Court should expunge the lis pendens because Poltavski has not alleged or established a legal interest in the real property. (Motion at pp. 4-5.) Plaintiff contends that Poltavski’s recording of the lis pendens was improper because Poltavski makes no claim against the real property, only money damages. (Motion at pp. 5-6.) In Poltavski’s FAXC, he alleges that he is 50% owner of the Oakdale Property. (FAXC ¶¶ 21-24.)

    Under California law, as the recorder of the lis pendens, Poltavski’s purported interest must go to legal title or possession of the subject property: “allegations of equitable remedies, even if colorable, will not support a lis pendens if, ultimately, those allegations act only as a collateral means to collect money damages.” (Urez Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1149.)  Where a party’s interest in real property is “purely monetary,” a court may expunge a lis pendens. (Coppinger v. Superior Court (1982) 134 Cal.App.3d 883, 892.) In support of this Motion, Plaintiff provides a copy of the Grant Deed for the Oakdale Property, on which he and Zelyeny are listed as Joint Tenants. (Galanter Decl., Exh. A.)

    However, the analysis in this case is Moot because Poltavski has already withdrawn the Lis Pendens due to its failure to comply with CCP section 405.22. (Oppo. at p. 6; Horner Decl., Exh. E.) Poltavski contends that he recorded the withdrawal on August 28, 2020 and filed a copy with this Court. (Horner Decl., ¶ 8, Ex. E.) Poltavski’s attorney signed the Notice of Withdrawal of Lis Pendens before a Notary, stating that he withdrew it.

    Regarding attorneys’ fees, “when a lis pendens is withdrawn while a motion to expunge is pending, the moving party is not automatically entitled to attorney fees, nor automatically denied attorney fees, under section 405.38. Instead […] the trial court has the discretion to award attorney fees based on a determination of which party would have prevailed on the motion, and whether the lis pendens claimant acted with substantial justification in withdrawing the lis pendens, or whether, in light of all of the circumstances, the imposition of fees would otherwise be unjust.” (Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1024–1025.) Here, Poltavski removed the lis pendens from the Oakdale Property after Plaintiff filed the instant Motion. Because Plaintiff’s evidence of the Grant Deed for the Oakdale Property supports a finding that only Plaintiff and non-party Zelyneny are owners of the Oakdale Property; and Poltavski had not produced any evidence that he has a legal interest in the Oakdale Property, the Court determines that Plaintiff would have prevailed on the Motion if Poltavski had not withdrawn the lis pendens.

    Plaintiff request $5,300 for bringing this Motion. (Motion at p. 1.) This includes 7 hours on Motion, and 3 hours on the Reply and hearing. Because the Motion is Moot and the Reply was filed after Poltavski withdrew the lis pendens, the Court awards attorneys’ fees only for preparing the Moving Motion.

    Accordingly, the Motion to Expunge Lis Pendens is MOOT.  The Court awards attorneys’ fees of $3,640 in favor of Plaintiff.

    Plaintiff to give notice,

    DATED: September 18, 2020

    ________________________________

    Hon. Robert S. Draper

    Judge of the Superior Court

Case Number: BC682254    Hearing Date: July 27, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

SIMON PALAGASHVILI:

Plaintiff,

vs.

IGOR POLTAVSKI, et al.;

Defendant.

AND RELATED CROSS-ACTIONS

Case No.:

BC682254

Hearing Date:

July 27, 2020

[TENTATIVE RULING]

Plaintiff Simon Palagashvili’s Motion to Quash Business Records Subpoena to alex akselrod

Plaintiff Simon Palagashvili’s Motion to Quash Business Records Subpoena to Alex Akselrod is GRANTED. No sanctions are awarded.

FACTUAL ALLEGATIONS

This is an action for fraud, breach of contract, and quiet title. The Complaint alleges as follows. Plaintiff Simon Palagashvili (“Palagashvili”) entered into an agreement with Defendant Igor Poltavski (“Poltavski”) to purchase a plot of land in Baldwin Park for the purpose of cultivating cannabis. (Complaint ¶ 10.) Poltavski repeatedly represented to Palagashvili that he would obtain the necessary permits, and Palagashvili repeatedly emphasized the importance of obtaining the permits. (Complaint ¶¶ 10–12.) Based on this understanding, Palagashvili invested significant resources into the property through 2017 and 2018. (Complaint ¶¶ 13–15.) In February 2018, Poltavski informed Palagashvili that he had not obtained the permits, and Palagashvili in turn refused to conduct the cultivation business without them. (Complaint ¶ 18.) Despite being a 50% owner of the land, Poltavski demanded that Palagashvili vacate the property. (Complaint ¶ 18.)

Poltavski’s Cross-Complaint (or “XC”) alleges that Palagashvili owes Poltavski several thousand dollars for expenses incurred in forming the investment agreement on the property at issue. (XC ¶ 11.)

procedural history

Palagashvili filed the Complaint on June 4, 2018, alleging six causes of action:

  1. Intentional Misrepresentation

  2. Rescission and Restitution

  3. Quiet Title

  4. Breach of Contract

  5. Conversion

  6. Goods Sold and Delivered

Defendants filed an Answer on July 19, 2018.

Poltavski filed a Cross-Complaint on July 19, 2018, alleging three causes of action:

  1. Account Stated

  2. Breach of Oral Contract

  3. Declaratory Relief

On June 20, 2019, this Court granted Plaintiff’s Motion to Quash Business Records Subpoena to Circle of Hope Alliance.

On January 9, 2020, this Court granted Poltavski’s Motion for Leave to File a First Amended Cross-Complaint.

On January 14, 2020, Poltavski filed a First Amended Cross-Complaint (“FAXC”), alleging four causes of action:

  1. Account stated

  2. Breach of oral contract

  3. Declaratory relief

  4. Quiet title to real property

On January 16, 2020, Plaintiff filed the instant Motion to Quash Business Records Subpoena to Alex Akselrod.

No Opposition has been filed.

DISCUSSION

  1. MOTION TO QUASH SUBPOENA

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).)

Palagashvili moves to quash a deposition subpoena issued to Alex Akselrod, Palagashvili’s personal accountant for “Sales Tax records and Tax returns for Ocean Grown Hydro for the years 2016, 2017, and 2018.” (Motion at p. 4; Exh. A.) Palagashvili argues that the subpoena was improperly served because Defendant Gayhurst, LLC (“Gayhurst”) failed to serve Palagashvili and failed to serve a “Notice of Privacy Rights” as required by Code of Civil Procedure section 1985.3 for financial records. (Motion at p. 5.) Palagashvili further argues that the subpoena violates his privacy rights because tax returns are protected from disclosure, the records are irrelevant to the issues in the present action, and the request is overly broad. (Motion at p. 5.)

“In determining whether disclosure is required, the court must indulge in a ‘careful balancing’ of the right of a civil litigant to discover relevant facts, on the one hand, and the right of the third parties to maintain reasonable privacy regarding their sensitive personal affairs, on the other. [Citation.] The court must consider the purpose of the information sought, the effect that disclosure will have on the affected persons and parties, the nature of the objections urged by the party resisting disclosure and availability of alternative, less intrusive means for obtaining the requested information. [Citation.] Based on an application of these factors, the more sensitive the nature of the personal information that is sought to be discovered, the more substantial the showing of the need for the discovery that will be required before disclosure will be permitted.” (Hooser v. Superior Court (2000) 84 Cal.App.4th 997, 1004.)

Generally, tax returns are protected from discovery disclosure. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 719.) This applies to both personal and corporate tax returns, as well as sales tax returns. (Id. at 720; Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 7.)

Gayhurst failed to file any Opposition to support an argument to the contrary. Therefore, the Court finds that Palagashvili’s privacy interest in the subpoenaed tax returns of his company are protected from forced discovery disclosure.

Accordingly, the Motion to Quash is GRANTED. No sanctions are awarded.

DATED: July 27, 2020

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC682254    Hearing Date: January 09, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

SIMON PALAGASHVILI:

Plaintiff,

vs.

IGOR POLTAVSKI, et al.;

Defendant.

AND RELATED CROSS-ACTIONS

Case No.:

BC682254

Hearing Date:

January 9, 2020

[TENTATIVE]RULING RE:

DEFENDANT AND CROSS-cOMPLAINANT IGOR POLTAVSKI’S MOTION FOR LEAVE TO FILE A FIRST AMENDED CROSS-COMPLAINT

Defendant and Cross-Complainant Igor Poltavski’s Motion for Leave to File a First Amended Cross-Complaint is GRANTED.

FACTUAL ALLEGATIONS

This is an action for fraud, breach of contract, and quiet title. The Complaint alleges as follows. Plaintiff Simon Palagashvili (“Palagashvili”) entered into an agreement with Defendant Igor Poltavski (“Poltavski”) to purchase a plot of land in Baldwin Park for the purpose of cultivating cannabis. (Complaint ¶ 10.) Poltavski repeatedly represented to Palagashvili that he would obtain the necessary permits, and Palagashvili repeatedly emphasized the importance of obtaining the permits. (Complaint ¶¶ 10–12.) Based on this understanding, Palagashvili invested significant resources into the property through 2017 and 2018. (Complaint ¶¶ 13–15.) In February 2018, Poltavski informed Palagashvili that he had not obtained the permits, and Palagashvili in turn refused to conduct the cultivation business without them. (Complaint ¶ 18.) Despite being a 50% owner of the land, Poltavski demanded that Palagashvili vacate the property. (Complaint ¶ 18.)

Poltavski’s Cross-Complaint (or “XC”) alleges that Palagashvili owes Poltavski several thousand dollars for expenses incurred in forming the investment agreement on the property at issue. (XC ¶ 11.)

procedural history

Palagashvili filed the Complaint on June 4, 2018, alleging six causes of action:

  1. Intentional Misrepresentation

  2. Rescission and Restitution

  3. Quiet Title

  4. Breach of Contract

  5. Conversion

  6. Goods Sold and Delivered

Defendants filed an Answer on July 19, 2018.

Poltavski filed a Cross-Complaint on July 19, 2018, alleging three causes of action:

  1. Account Stated

  2. Breach of Oral Contract

  3. Declaratory Relief

On December 2, 2019, Poltavski filed the instant Motion for Leave to File a First Amended Cross-Complaint.

No Opposition has been filed.

DISCUSSION

  1. MOTION FOR LEAVE TO AMEND CROSS-COMPLAINT

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

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

    “The trial court has discretion to permit or deny the amendment of the complaint, but instances justifying the court's denial of leave to amend are rare.” (Armenta ex rel. City of Burbank v. Mueller Co.¿(2006) 142 Cal.App.4th 636, 642). Although the motion does not comply with all the technical requirements of California Rules of Court 3.1234, there is no opposition and therefore no claim that the failure to comply with these technical requirements is prejudicial. Additionally, the Court has already agreed to continue the trial date. Your Honor

Accordingly, the Motion for Leave to Amend is GRANTED.

DATED: January 9, 2020

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where SAN FERNANDO CITY OF is a litigant

Latest cases where CITY OF SAN FERNANDO is a litigant