YEVGINE BARSEGHYAN VS VERONICA LEE ET AL

Tentative Rulings

Case Number: ****7473 Hearing Date: June 23, 2022 Dept: 55

BARSEGHYAN v. LEE ****7473

Hearing Date: 6/23/22, Dept. 55

#8:

MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT.

MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT.

Notice: Okay

Oppositions

MP:

1. Defendant MARINE MAKARYAN.

2. Cross-Defendants FHT and VERONICA LEE.

RP:

1. None.

2. Defendants BIANCA TORSARKISSIAN and BT CONSTRUCTION; Defendant CA WESTFIELD EXTERMINATORS, INC.; and Defendant/Cross-Complainant MARINE MAKARYAN.

Summary

On 7/7/17, Plaintiff YEVGINE BARSEGHYAN filed a Complaint.

On 10/15/20, Plaintiff filed a First Amended Complaint, alleging that, about June 2015, the entity defendant sold a home, without disclosing to Plaintiff known defects (e.g., mold, rain-collapsing roof) caused by the substandard renovations done by the individual defendant and co-defendants. Also, allegedly, Plaintiff’s real estate agent, Defendant MARINE MAKARYAN, breached her duty of care, by failing to conduct basic research into city records pertaining to the failure of construction defendants to obtain the relevant legal permitting to conduct the substandard renovations, and failing to conduct a basic inspection or investigation of the property.

The causes of action are:

1. NEGLIGENCE;

2. BREACH OF IMPLIED WARRANTY;

3. BREACH OF EXPRESS WARRANTY;

4. EQUITABLE INDEMNITY;

5. UNFAIR COMPETITION.

3/17/21, Defendant MARINE MAKARYAN filed a Cross-Complaint, including against Cross-Defendant VERONICA LEE, for (1) Equitable Indemnification, (2) Contribution, and (3) Declaratory Relief.

MP Positions

Moving parties Cross-Defendants FHT and VERONICA LEE request an order granting a determination of a good faith settlement, and barring cross-complaints, on grounds including the following:

On or about September 12, 2020, Barseghyan entered into a confidential settlement agreement, although the amount could be disclosed to the Court.

The Tech-Bilt factors apply.

There is no evidence to meet the opposing burden of showing that the settlement was reached through collusion.

The determination is necessary, because, an order is needed to bar the Cross-Complaint of Defendant Marine Makaryan, which includes Cross-Defendant Lee.

RP Positions

Opposing parties request denying the motion of FHT and LEE, for reasons including the following:

Lee and FHT do not satisfy the basic requirements as laid out in Tech-Bilt, without exhibits or declarations.

The motion fails to disclose any terms of the settlement based upon the premise that the agreement was confidential. All terms were redacted except for one recital and the paragraph concerning the confidentiality of the agreement. While parties may agree to confidentiality, "they may not claim a privilege of nondisclosure when they move to confirm the good faith of their settlement under section 877.6." J. Allen Radford Co. v. Superior 21 Court (1989) 216 Cal.App.3d 1418, 1423; Mediplex of California, Inc. v. Superior Court 22 (1995) 34 Cal.App.4th 748, 753-754.

FHT and Lee failed to make required showings in purporting to assign indemnity rights to Plaintiff against Torsarkissian and BT Construction.

FHT and Lee are liable for acts of their contractors, and so their assignment of such rights are of no or de minimus value. Thomas v. Duggins Const. Co., Inc. (2006) 139 Cal. App.4th 9 1105; Bostick v. Flex 20 Equip. Co., Inc. (2007)147 Cal. App.4th 80.

There is no allocation or evaluation of types of liability for each nonsettling party, or as to assigned indemnity rights.

Plaintiff's counsel in bad faith stated in an email dated February 28, 16 2022: "the entire $100,000 is paid for punitive damages." (See: Decl. of Andrew Leff, 17 Exh. "2"). This is collusive, especially considering a party allegedly charged with only negligence.

Makaryan should receive a credit of $100,000 for the cash payment from LEE to Plaintiff.

Tentative Ruling

The motion of Defendant MARINE MAKARYAN is ordered off calendar, it not having been filed yet pursuant to the minutes entered 6/13/22. Stipulation submitted. Court will discuss the stipulation with counsel.

The motion of Cross-Defendants FHT and VERONICA LEE is denied.

The Court readily agrees with the oppositions, that the motion lacks evidence of all Tech-Bilt factors, including, but not limited to, all settlement terms, instead of almost complete redaction (motion, filed 5/12/22, ex. A), proportionate liabilities, and any insurance.

Moving parties must show by competent evidence all Tech-Bilt factors. Mediplex of Cal. v. Sup. Ct. (1995) 34 Cal. App. 4th 748, 753 n.4; Greshko v. Los Angeles (1987) 194 Cal.App.3d 822.

The Tech-Bilt factors are:

• A rough approximation of plaintiffs' total recovery and the settlor's proportionate liability;
• The amount paid in settlement;
• A recognition that a settlor should pay less in settlement than if found liable after a trial;
• The allocation of the settlement proceeds among plaintiffs;
• The settlor's financial condition and insurance policy limits, if any; and
• Evidence of any collusion, fraud, or tortious conduct between the settlor and the plaintiffs aimed at making the nonsettling parties pay more than their fair share.

Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.

“[T]he determination whether the settlement was in good faith must be based on competent, admissible evidence.” Brehm Communities v. Sup. Ct. (2001) 88 Cal.App.4th 730, 736. A determination of a good faith settlement must be supported by substantial evidence. Norco Delivery Service, Inc. v. Owens Corning Fiberglas (1998) 64 Cal.App.4th 955, 962. "The trial court is given broad discretion in deciding whether a settlement is in 'good faith' for purposes of section 877.6, and its decision may be reversed only upon a showing of abuse of discretion." TSI Seismic Tenant Space, Inc. v. Sup. Ct. (2007) 149 Cal.App.4th 159, 165. Judges’ have limited discretion in ruling upon a motion for good faith settlement, and the rulings must be made “in view of the equitable goals of the statute, in conformity with the spirit of the law and in a manner that serves the interests of justice”, and must serve the goals of “encouraging settlement among all interested parties” and “equitably allocating costs among multiple tortfeasors”, as opposed to allowing a party to obtain “protection from its indemnification obligation at bargain-basement prices.” Long Beach Memorial Medical Center v. Sup. Ct. (2009) 172 Cal. App. 4th 865, 873, 876.

Settlement agreements cannot be for only part of plaintiffs’ damages, done in order to maximize further recovery against the nonsettling defendants. Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2021) 12:781 (citing Bobrow/Thomas & Assocs. v. Sup.Ct. (John F. Otto, Inc.) (1996) 50 CA4th 1654, 1660).

Unless the settlement terms are known, courts must be provided with the settlement agreements showing the material terms. Cal. Prac., supra, at 12:892 (citing Alcal Roofing & Insulation v. Sup.Ct. (Sears) (1992) 8 CA4th 1121, 1127; Mediplex of Calif., Inc. v. Sup.Ct. (Casa de las Campanas) (1995) 34 CA4th 748, 754).

Nonsettling defendants are entitled to a credit against judgments in amounts paid for assigned indemnity rights, which is their value at the time of settlement, but not the value of potential recovery. Cal. Prac., supra, at 12:890 (citing Erreca's v. Sup.Ct. (Calle Ryan Homeowners Ass'n) 19 CA4th at 1498).

“The settlement agreement's allocation of settlement proceeds is not binding in determining the amount of credit to which nonsettling defendants are entitled.” Cal. Prac., supra, at 12:932.

Case Number: ****7473 Hearing Date: May 9, 2022 Dept: 55

BARSEGHYAN v. LEE ****7473

Hearing Date: 5/9/22, Dept. 55

#2: MOTION FOR SUMMARY JUDGMENT.

Notice: Okay

Opposition

MP: Defendant MARINE MAKARYAN

RP: Plaintiff

Summary

On 7/7/17, Plaintiff YEVGINE BARSEGHYAN filed a Complaint.

On 10/15/20, Plaintiff filed a First Amended Complaint, alleging that, about June 2015, the entity defendant sold a home, without disclosing to Plaintiff known defects (e.g., mold, rain-collapsing roof) caused by the substandard renovations done by the individual defendant and co-defendants. Also, allegedly, Plaintiff’s real estate agent, Defendant MARINE MAKARYAN, breached her duty of care, by failing to conduct basic research into city records pertaining to the failure of construction defendants to obtain the relevant legal permitting to conduct the substandard renovations, and failing to conduct a basic inspection or investigation of the property.

The causes of action are:

1. NEGLIGENCE;

2. BREACH OF IMPLIED WARRANTY;

3. BREACH OF EXPRESS WARRANTY;

4. EQUITABLE INDEMNITY;

5. UNFAIR COMPETITION.

MP Positions

Moving party requests an order granting summary judgment, on grounds including the following:

The statutory two-year limitation expired. Makaryan established that the escrow closed June 1, 2015, more than 2 years from when the Complaint was filed. The statutory limitations applies even to negligence claims. Williams v. Wells & Bennett Realtors (1997) 52 Cal. App.4th 857, 864. A cited opinion distinguishably involved a cause of action for Breach of Fiduciary Duty-- Field v. Century 21 Klowden Forness Realty (1998) 63 Cal. App. 4th 18.

Plaintiff waived the alleged duties. Plaintiff's declaration claims that the "Buyer's Inspection Waiver" and "Statewide Buyer and Seller Advisory" are forged signatures. This, however, leaves undisputed that the Plaintiff signed Exh. A, "Purchase Agreement" and Exh. B, "Buyer's Inspection Advisory." Cf. Carleton v. Tortosa (1993) 14 Cal.App.4th 745, 755. In writings, Plaintiff was strongly advised to investigate the condition and suitability of all aspects of the subject real property.

RP Positions

Opposing party requests denying, for reasons including the following:

1) The statute of limitations runs from accrual of the cause of action, which in this case

occurred, at the earliest, in March 2016.

2) Defendant Makaryan, as a buyer’s broker, had a duty to investigate public records and

permits regarding the property.

3) Defendant Makaryan could not relieve herself of her basic duties by advisory documents.

4) Ms. Barseghyan did not waive an inspection and did not sign the purported Buyer’s

Inspection Waiver—it appears to be a forgery by Defendant Makaryan.

(Opp., pp. 1 – 2.)

Tentative Ruling

The motion is denied.

In analyzing motions for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence of a triable, material issue of fact. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; Hinesley v. Oakshade Town Center (2005) 135 Cal. App. 4th 289, 294.

Here, as a matter of law, the motion fails to shift the burden of proof, including because it is based upon artificially limited statutory duties to inspect that exclude otherwise actionable permits research, and Statutes of Limitations of real estate agents. Distinguishably, the instant First Amended Complaint includes duties rooted in common law negligence, requiring them to research and investigate real property conditions and construction permits.

Additionally, the Court determines that there are triable issues of material fact, including (1) whether moving Defendant breached duties by not inspecting the property or construction permits, (2) whether signed documents contain Plaintiff’s authentic or forged signatures, (3) whether the Complaint filed 7/7/17 was timely after damages and discovery occurring on or after accrual in March 2016, and (4) whether document language (e.g., advising buyer’s own inspection and research) can be interpreted to absolutely waive all relevant duties of the real estate agent (e.g., separate statements, facts 10 - 12, and proof referenced thereat; and Plaintiff’s declaration).

Further, by alleging Defendant’s role as real estate agent, the First Amended Complaint sufficiently infers that the Negligence Cause of Action includes breaches of fiduciary duty, beyond statutory, such that the Statute of Limitations cannot be confined to Civil Code Section 2079.4. The fiduciary aspect follows the role as real estate agent, and is often analyzed as being intermixed with concepts of negligence. Cf., e.g., Salahutdin v. Valley of Cal., Inc. (1994) 24 Cal. App. 4th 555, 563 (“there is no clear line establishing when a fiduciary's breach of the duty of care will be merely negligent and when it may be characterized as constructive fraud.”); Oakland Raiders v. National Football League (2005) 131 Cal. App. 4th 621, 632 (fiduciary duties can be based upon a relationship that imposes them as a pure matter of law). The statutory two-year limitation is based on negligence-type claims, if they are only based on statutory duties. E.g., Williams v. Wells & Bennett Realtors (1997) 52 Cal.App.4th 857, 865 (“[T]he only duty added by that section is the Easton duty to inspect and disclose.”).

For summary judgment purposes, issues framed by complaints and answers, which are to be addressed, may include even those pled defectively, yet intelligibly, as contrasted with theories completely missing from pleadings. Physicians Comm. For Responsible Medicine v. McDonald's Corp. (2010) 187 Cal.App.4th 554, 568 (“the issues framed by the pleadings are the only issues a motion for summary judgment must address.”); FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 382-383; Jordan-Lyon Prods., ITD., v. Cineplex Odeon Corp. (1994) 29 Cal.App.4^th 1459, 1472; Bostrom v. County of San Bernardino (1995) 35 Cal. App. 4th 1654, 1663; 580 Folsom Assocs. v. Prometheus Dev. Co. (1990) 223 Cal. App. 3d 1, 14, 18 (burden to address theories “reasonably contemplated by the opponent's pleading”); Melican v. Regents of Univ. of Cal. (2007) 151 Cal. App. 4th 168, 182 (not requiring party to negate an unstated claim).

A question of duty may constitute a triable issue of material fact, as to whether the facts in dispute give rise to a theoretical duty that has been determined as a pure issue of law. Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162 n.4 (regarding negligence, disputed facts which give rise to a legal duty are determined by the jury); Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 614. See also Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, 1130-36 (triable issues of fact existed as to duty regarding contractor’s delegated duties).

Where contract interpretation is an issue, and parol evidence is admissible and in conflict, summary judgment must be denied. Wolf v. Sup. Ct. (2004) 114 Cal.App.4th 1343, 1359 n. 27; Fischer v. First Internat. Bank (2003) 109 Cal.App.4th 1433, 1443; Byrne v. Laura (1997) 52 Cal. App. 4th 1054, 1066; Money Store Inv. Corp. v. S. Cal. Bank (2002) 98 Cal. App. 4th 722, 730; Rogers v. Prudential Ins. Co. (1990) 218 Cal.App.3d 1132, 1136-37 (policy was ambiguous where there was no copy of the policy in the record showing its terms); Butler v. Vons Companies, Inc. (2006) 140 Cal.App.4th 943, 949-50 (triable issues existed based upon parol testimony as to scope of release agreement).

“[A] waiver is the intentional relinquishment or abandonment of a known right or privilege…. Waiver is a question of fact.” Smith v. Selma Community Hosp. (2008) 164 Cal.App.4th 1478, 1506. Accord Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 740 n.9.

A treatise summarizes the Statute of Limitations as follows:

In an action for negligence, negligent misrepresentation, and breach of fiduciary duty brought by purchasers of a rural residence against their real estate broker and its agent, who had contracted to exclusively represent them, citing defendants' failure to inspect related title documents and to determine the extent of an existing water district easement, the trial court properly determined that plaintiffs' action was not time-barred under Civ. Code, 2079.4, which imposes a two-year statute of limitations for breaches of the duties imposed by Civ. Code, 2079 (visual inspection and disclosure of material facts). The limitations period established by Civ. Code, 2079.4, does not apply to claims for a breach of fiduciary duty brought against real estate brokers by purchasers whom they exclusively represent. The fiduciary duty brokers owe to their own clients is substantially broader than the limited Civ. Code, 2079, visual inspection duty imposed on a broker selling to a buyer with whom there is no contractual or fiduciary relationship, and may include a duty to inspect public records or permits concerning title or use of the property, a duty that is expressly excluded from Civ. Code, 2079. Further, since the triggering event for the statute of limitations applicable to fiduciaries is more flexible than the two-year-from-possession limitation set forth in Civ. Code, 2079.4, to apply Civ. Code, 2079.4, to fiduciary duties of a buyer's broker would, contrary to the Legislature's intent, restrict the ability of buyers to obtain redress for duties owed by their own real estate licensees that existed before Civ. Code, 2079.4, was enacted. Field v. Century 21 Klowden-Forness Realty, 63 Cal. App. 4th 18, 73 Cal. Rptr. 2d 784 (4th Dist. 1998), as modified, (Apr. 17, 1998).

Real property, 3 Cal. Real Est. Digest 3d Limitation of Actions 18.

A treatise explains interrelationships between statutory, fiduciary duty, negligence and constructive fraud as potential theories of liability of real estate agents:

Most of the decisions involving a real estate broker's breach of fiduciary duties are based on a finding of constructive fraud.1 Few decisions have considered the broker's liability to his or her principal for simple negligence. However, the existing decisions make it clear that the broker owes a greater duty of care to his or her principal than the mere disclosure of material facts known to the agent.2

The distinction between mere negligent conduct by a fiduciary that is not constructive fraud, and nonfraudulent conduct that is constructive fraud, is the reliance by the principal. Reliance is not required for the recovery of damages for negligence, but reliance by the principal is required to prove constructive fraud.3 The claim must be pleaded with specificity, and cannot be asserted against a broker who is not a fiduciary for the plaintiff, e.g., a seller's broker who is not acting as a dual agent for the buyer.4

Duty to ascertain or discover material facts. The duties of a broker to a third party in a transaction are more limited than the fiduciary duties the broker owes to his or her principal.5 The failure to recognize the distinction between fiduciary and nonfiduciary duties has produced some confusion.6

The broker has a fiduciary duty to his or her principal to learn the material facts that may affect the principal's decision. The broker is hired for professional knowledge and skill. He or she is expected to perform the necessary research and investigation in order to know those important matters that will affect the principal's decision, and has a duty to counsel and advise the principal regarding the propriety and ramifications of the decision. The agent's duty to disclose material information to the principal includes the duty to disclose reasonably obtainable material information.7 The agent also must investigate and learn about matters that might affect the desirability of the transaction and consult with the principal regarding the ramifications of the transaction for the best interests of the principal.8 Either responsibility may include a duty to inspect records or permits concerning the title or use of the property.9

Duty to exercise skill, care, and diligence—Duty to investigate, ascertain, and explain, 2 Cal. Real Est. 3:36 (4th ed.).

Breach of a real estate agent's fiduciary duty to his or her client may constitute negligence or fraud, depending on the circumstances of the case. Additionally, a real estate agent, as a fiduciary, may also be liable to his or her principal for constructive fraud even though the agent's conduct is not actually fraudulent. Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship. As a general principle, constructive fraud comprises any act, omission, or concealment involving a breach of legal or equitable duty, trust, or confidence that results in damage to another even though the conduct is not otherwise fraudulent. Most acts by an agent in breach of the agent's fiduciary duties constitute constructive fraud. The fiduciary's failure to disclose a material fact to his or her principal that might affect the fiduciary's motives or the principal's decision, which is known (or should be known) to the fiduciary, may constitute constructive fraud. Also, a careless misstatement may constitute constructive fraud even though there is no fraudulent intent. It is clear, therefore, that whether a fiduciary duty has been breached, and whether a statement constitutes constructive or actual fraud depends on the facts and circumstances of each case. Assilzadeh v. California Federal Bank, 82 Cal. App. 4th 399, 98 Cal. Rptr. 2d 176 (2d Dist. 2000).

A real estate broker's fiduciary duty to his or her client requires the highest good faith and undivided service and loyalty. The broker as a fiduciary has a duty to learn the material facts that may affect the principal's decision. He or she is hired for his or her professional knowledge and skill; he or she is expected to perform the necessary research and investigation in order to know those important matters that will affect the principal's decision, and he or she has a duty to counsel and advise the principal regarding the propriety and ramifications of the decision. The agent's duty to disclose material information to the principal includes the duty to disclose reasonably obtainable material information. The facts that a broker must learn, and the advice and counsel required of the broker, depend on the facts of each transaction, the knowledge and the experience of the principal, the questions asked by the principal, and the nature of the property and the terms of sale. The broker must place himself or herself in the position of the principal and ask himself or herself the type of information required for the principal to make a well-informed decision. This obligation requires investigation of facts not known to the agent and disclosure of all material facts that might reasonably be discovered. Field v. Century 21 Klowden-Forness Realty, 63 Cal. App. 4th 18, 73 Cal. Rptr. 2d 784 (4th Dist. 1998), as modified, (Apr. 17, 1998).

In general, 1 Cal. Real Est. Digest 3d Brokers 21.

Finally, the Court has considered the evidentiary objections in making its ruling. As to summary judgment or adjudication motions, judges need only rule on evidentiary objections deemed material to the disposition. CCP 437c(Q).

b'

Case Number: ****7473 Hearing Date: August 2, 2021 Dept: 55

BARSEGHYAN v. LEE ****7473

Hearing Date: 8/2/21, Dept. 55

#3: MOTION FOR LEAVE TO FILE CROSS-COMPLAINT.

Notice: Okay

Opposition

MP: Defendants BT CONSTRUCTION & DEVELOPMENT, INC., BIANCA TORSARKISSIAN

RP: Plaintiff

Summary

On 7/7/17, Plaintiff YEVGINE BARSEGHYAN filed a Complaint.

On 10/15/20, Plaintiff filed a First Amended Complaint, alleging that, about June 2015, the entity defendant sold a home, without disclosing to Plaintiff known defects caused by the substandard renovations done by the individual defendant and co-defendants. Also, allegedly, Plaintiff’s real estate agent, Defendant MARINE MAKARYAN, breached her duty of care, by failing to conduct basic research into city records pertaining to the failure of construction defendants to obtain the relevant legal permitting to conduct the substandard renovations, and failing to conduct a basic inspection or investigation of the property.

The causes of action are:

1. NEGLIGENCE;

2. BREACH OF IMPLIED WARRANTY;

3. BREACH OF EXPRESS WARRANTY;

4. EQUITABLE INDEMNITY;

5. UNFAIR COMPETITION.

MP Positions

Moving parties request an order allowing leave to file a proposed cross-complaint, on grounds including the following:

· The permissive nature of this cross-complaint has relatively little bearing on the issue of whether leave should be granted.

· Defendants should be permitted to join cross-defendants in this lawsuit, who might be liable to Defendants, if Barsegyan establishes liability against them.

· There is no bad faith.

· No prejudice would be caused. Barsegyan would have a greater chance at some recovery with the proposed defendants added to this action. A delay of several months of the trial is not enough alone to establish prejudice.

· The opposition improperly argues that the pleading lacks merit.

RP Positions

Opposing party requests denying, for reasons including the following:

· The cross-complaint is not compulsory against parties other than Plaintiff

· The cross-complaint would prejudicially delay the adjudication of Plaintiff’s claims.

· The attempt to file a cross-complaint approximately only two months before the trial date is in bad faith.

· The proposed cross-complaint has frivolous causes of action.

Tentative Ruling

The motion is denied.

Because the proposed Cross-Complaint is not alleged against the Plaintiff, it is not compulsory, but instead is discretionary, and can be handled as a separate case filing, in the Court’s discretion.

Judges have discretion to deny leave to file permissive cross-complaints, including based upon a finding of unexplained delay, depending upon the interests of justice. Crocker Nat. Bank v. Emerald (1990) 221 Cal. App. 3d 852, 864; CCP ;428.50(c). Cross-complaints against parties other than plaintiffs or cross-complainants are permissive, and while efficiency may be gained by resolving claims in cross-complaints filed in one action, courts may require parties to pursue separate actions. Insurance Co. of No. America v. Liberty Mut. Ins. Co. (1982) 128 Cal.App.3d 297, 303.

Cross-complaints for equitable indemnity are virtually always related to the main action. Time for Living, Inc. v. Guy Hatfield Homes (1991) 230 Cal.App.3d 30, 38.