Complaint-Civil Party: Plaintiff Weidner Apartment Homes Index #1 July 30, 2024 (2024)

Complaint-Civil Party: Plaintiff Weidner Apartment Homes Index #1 July 30, 2024 (1)

Complaint-Civil Party: Plaintiff Weidner Apartment Homes Index #1 July 30, 2024 (2)

  • Complaint-Civil Party: Plaintiff Weidner Apartment Homes Index #1 July 30, 2024 (3)
  • Complaint-Civil Party: Plaintiff Weidner Apartment Homes Index #1 July 30, 2024 (4)
  • Complaint-Civil Party: Plaintiff Weidner Apartment Homes Index #1 July 30, 2024 (5)
  • Complaint-Civil Party: Plaintiff Weidner Apartment Homes Index #1 July 30, 2024 (6)
  • Complaint-Civil Party: Plaintiff Weidner Apartment Homes Index #1 July 30, 2024 (7)
  • Complaint-Civil Party: Plaintiff Weidner Apartment Homes Index #1 July 30, 2024 (8)
  • Complaint-Civil Party: Plaintiff Weidner Apartment Homes Index #1 July 30, 2024 (9)
  • Complaint-Civil Party: Plaintiff Weidner Apartment Homes Index #1 July 30, 2024 (10)
 

Preview

27-CV-HC-24-5230 Filed in District Court State of Minnesota 7/30/2024 4:47 PM STATE OF MINNESOTA DISTRICT COURT COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT CASE TYPE: HOUSING Weidner Apartment Homes, Plaintiff, COMPLAINT vs. Mechelle Brown (dob unknown), John Doe, Jane Doe, Defendant. Parties1. Plaintiff is Weidner Apartment Homes. Plaintiff is a Landlord as that term is defined in Minn. Stat. § 504B.001, Subd. 7.2. Defendant is Mechelle Brown. Defendant is a Residential Tenant as that term is defined in Minn. Stat. § 504B.001, Subd. 12. The Lease3. There is a written lease between the parties and it is attached to the Complaint as Exhibit A.4. The address of the property in the Lease is 2836 Dupont Avenue South #CE148, in the City of Minneapolis, County of Hennepin, State of Minnesota, Zip Code 55408.5. The tenancy is not affected by a federal or state housing subsidy program through project-based federal assistance payments; the section 8 program; the LIHTC program or any other similar program. 1 27-CV-HC-24-5230 Filed in District Court State of Minnesota 7/30/2024 4:47 PM Conditions Precedent6. All necessary conditions precedent have been performed or have occurred.7. Plaintiff has complied with Minn. Stat. § 504B.181 by: a. disclosing to tenant either in the rental agreement or otherwise in writing prior to the beginning of the tenancy the name and address of: 1) the person authorized to manage premises; and 2) an owner or agent authorized by owner to accept service of process and receive and give receipts for notice and demands, AND b. posting in a conspicuous place on the property a printed or typewritten notice containing the above information in the lease, OR c. the above information is known by or has been disclosed to the tenant not less than 30 days before the filing of this action because of communications from landlord. Count 1: Eviction – Non-payment8. A detailed, itemized accounting or statement listing the amounts owing is attached to this Complaint as Exhibit B.9. The written notice required by Minn. Stat. § 504B.321, Subd. 1a was properly delivered. That notice is attached to this Complaint as Exhibit C.10. In addition to the arrearages identified in the immediately preceding paragraphs, pursuant to Minn. Stat. § 504B.291, prior to redeeming the tenancy and being restored to possession, Defendant(s) may be required to pay to the landlord or bring to court the amount of the rent that is in arrears, with interest, costs of the action, and an attorney’s fee not to exceed $5, and by performing any other covenants of the lease – including amounts that become due during the pendency of this action.11. The total amount required to redeem the tenancy is $1,935.10 + $377.00 (costs of the action – filing fee and service fee) for a total of $2,312.10, plus any additional amounts, or other covenants of the lease which may become due during the pendency of the action. The amount pled may not include all money owing under the lease.12. Defendants’ military status is unknown. 2 27-CV-HC-24-5230 Filed in District Court State of Minnesota 7/30/2024 4:47 PM Request for Relief1. Plaintiff seeks judgment against Defendant and an Order for possession of the property and the issuance of an immediate Writ of Recovery.2. Plaintiff seeks all allowable costs and disbursements of the action.I declare under penalty of perjury that everything I have stated in this document is true andcorrect to the best of my knowledge and belief. Minn. Stat. § 358.116.Dated: July 30, 2024 HANBERY & TURNER, P.A. /s/ Douglass E. Turner Douglass E. Turner, #0279948 33 South 6th St. Suite 4160 Minneapolis, MN 55402 Tele: (612) 353-4388 EM: hnc@hnclaw.com Attorney for Plaintiff 3 27-CV-HC-24-5230 Filed in District Court State of Minnesota 7/30/2024 4:47 PM APARTMENT LEASE CONTRACT NA-A- mom hwhfl'vlvn Date of Lease Contract: nugget: 21 , 2023 This is a binding document. Read carefully before signing. (when the Lease Contract is filled out) |_ Maggi— General information J 1. PARTIES. This Lease Contract (sometimes referred to as the 3. LEASETBRM. The initial term of the Lease Contract begins on the _18t day of _s_e_2t:_ember: 29—23 , and ends at 'lease') is between you. the resident(s) (list all people signing the _,. Lease C ontroct): 11:59 pm the 4th day of _2_o_21_, Mnhhfl' 1n chainiko Brown This Lease Contract will automatically renew month-to-month unless either party gives at least 60 days written notice of termination or intent to move-out as required by paragraph 51 least 30 (Move-Out Notice). if the number of days isn't filled in. at days notice is required/it least 15 days before this leaseautomatically renews. we will send you notice of automatic renewal as required by statute. 4. RENT AND CHARGES. Unless the parties agree in writing otherwise, you will pays _1_6_5_3_-00 per month for rent, payable in advance and without demand: [I at the on-site manager's office. or and us the owner: a at our online payment site, or -sit:e man: a '3 office it ch T.T.l' m at the accegtg Cashier's checks only 1 apartment communityror flue hold 1. Y dtorent | Dmrarfld rant of s Prorated rent 1658 0 | ls due for the remainder of [check Apartment No. at C514 . one]: a ist month orC] 2nd month,on Ave S #62148 __2_°.2_3_. Any additional expenses attributable to the online ' ' 7 (street address) in payment of rent will be disclosed to you by us. (CM). Otherwise, you must pay your rent on or before the lst day ofeach 55405 (zip code) (the "apartment" or the Minnesota, month [due date] with no grace period. Cash is unacceptable without The terms "you" and "premise-s") for use asa private residence only. our prior written permission. You must not withhold or offset "your" refer to all residents listed above. The terms "we," "us." and rent unless authorized by statute. We may. at our option. and upon "our" refer to the owner listed above [orany of owner's successors' advance notice to you, require at any time that you pay all rent and in interest or assigns). Written or electronic notice to or from our othersums in cash. certified or cashier's check. money order. orone has managers constitutes notice to or from us. If anyone else monthly check rather than multiple checks. At our discretion. we Lease guaranteed performance of this Lease Contract. a separate may convert any and all checks via the Automated Clearing House Contract Guaranty for each guarantor is attached. Rent is not (ACH) system for the purposes of collecting payment. The person authorized to manage the apartment is: considered accepted if the payment/ACH Is rejected. does not clean Karen Johnson or is stopped for any reason. if you don't pay all rent on or before the 3rd day of the month, you'll pay a late charge. Your late Name or charge will be (check one): D a flat rate of S 283'! hereon live Soutii m _9_% of your total rent due. The total amount of your late rent charges shall not exceed eight percent (8%) of your monthly St rect Address payment. You'll also pay a charge of S 30 - 0° for each Minneapolis MN 55408 returned check or rejected electronic payment, plus a late charge. If you don't pay rent on time, you'll be delinquent and all remedies City. State, Zip Code underthis Lease Contractwill beauthorizcd. All payment obligations The owner or agent authorized to accept service of process and under this Lease Contract shall constitute rent under this Lease receive and give receipts for notices is: Contract. crayon: Management Services LLC I Name 5. SECURITY DEPOSIT. Unless the parties otherwise agree in a separate addendum document. the total security deposit at the time 2837 meteor: Ave South of execution of this Lease Contract for all residents in theapartment is S 0 - 00 due on or before the date this Lease Contract Street Address is signed. Minneagolia mi 55408 in compliance with Minnesota low. your security deposit will City, State. Zip Code bear simple interest. interest will be included as part of the ' ion of your . " y 2. OCCUPANTS. The apartment will be occupied only by you and security deposit. Within 21 days after ter and receipt ofyourmalling address or written delivery instructions. (list all other occupants not signing the Lease Contract): we will return the deposit to you, with interest, or furnish to you a Tax-an Thomas written statementspecifying the reasons for the withholding of the deposit or any portion thereof. You may not withhold payment of any portion of any rent on the grounds that the security deposit should serve as payment of the rent. 6. KEYS. You will be provided _1_ apartment key(s), 1 other access mailbox kcy(s). FOB(s), and/or device(s) for access to the building and amenities at no additional cost at move-in. if the key, FOB, or other access device is lost or becomes damaged during your tenancy or is not returned or is returned damaged when you move out. you will be responsible for the costs for the replacement and/or repair of the same. No one else may occupy the apartment. Persons not listed above 3 7. UTILITIES. We'll pay forthe following items. if checked: must not stay in the apartment for more than consecutive Cl water Cl gas CI electricity CI master antenna days without our prior written consent. and no more than twice D wastewater D trash CI cable TV that many days in any one month. if the previous space isn't filled CI other in. two days per month is the limit. You'll pay for all other utilities. related deposits. and any charges. fees. or services on such utilities. You must not allow utilities to be 02023." ' 'Apartmcnt' lnc.-4/2023.Mlnnesota Page 1 of 8l/Wecéelleéflaom *3 flMflmW EXHIBIT A 27-CV-HC-24-5230 Filed in District Court State of Minnesota 7/30/2024 4:47 PM disconnected—including disconnection for not paying yourbills— Additionally, you are [check one] a required to purchase personal until the lease term or renewal period ends. Cable channels that arc liability insurance D not required to purchase personal liability insurance. If no box is checked. personal liability insurance is not provided may bechanged during the lease term if the changeapplies to all residents. Utilities may be used only for normal household required. if required. failure to maintain personal liability insurance purposes and must not be wasted. lf your electricity is ever throughout your tenancy. including any renewal periods and/or lease extensions. is an incurable breach of this Lease Contract and Interrupted. you must use only battery-operated lighting. if any utilities are submetered for the apartment. or prorated by an may result in the termination of tenancy and eviction and/or any allocation formula. we will attach an addendum to this Lease Contract other remedies as provided by this Lease Contract or state law. in compliance with state agency rules or city ordinance. Pursuant 9. LOCKS AND LATCHES. Keyed lock(s) will be rekeyed after the to Minnesota Statute 5043.215 Subd. 23. upon your request. we shall provide a copyof the actual utility bill for the community along prior resident moves out. The rekeying will be done before you move into your apartment. with each apportioned utility bill. You may atany time ask us to change or rekey locks or latches during 8. INSURANCE. We do not maintain insurance to cover your personal the Lease 1mm. We must comply with those requests. but you must property or personal injury. We are not responsible to any resident, pay for them. unless otherwise provided by law. or guest, or occupant for damage or loss of personal property Payment for Rekeylng, Repairs. Etc. You must pay for all repairs personal injury from (including but not llmlted to) fire. smoke, rain. or replacements to devices arising from the willful. malicious, or flood. waterand pipe leaks,hall. ice,snow,lightning,wind,explosions. ea rthquake, interruption of utilities. theft. hurricane. negligence of irresponsible conduct by you or your occupants. or guests during other residents. occupants,or invited/uninvited guests or vandalism your occupancy. You may be required to pay in advance if we notify you within a reasonable time after your request that you are more unless otherwise required by law. than 30 days delinquent in reimbursing us for repairing or replacing in addition, we urge all residents, and particularly those residing a device which was misused or damaged by you. your guest or an in coastal areas, areas near rivers, and areas prone to flooding. to occupant: orif you have requested that we repair or change or rekey obtain flood insurance. Renter's insurance may not cover damage the same device during the 30 days preceding your request and we to your property due to floodingJl flood insurance resource which have complied with your request. Otherwise. you must pay may be available includes the Natlonal Flood insurance Program immediately after the work is completed. managed by the Federal Emergency Management Agency (FEMA). We D require D do not require you to get your own insurance for losses to your personal property or iniuries due to theft. fire. water damage. pipe leaks and the like. If no box is checked, renter's insurance is not required. Special,£rovisions and "What If" Clauses 10.SPECIAI. PROVISIONS. The following special provisions and any owns or uses] if you are judicially evicted or if you surrender or addenda or written rules furnished to you at or before signing will abandon the apartment (see definitions in paragraph 56 (Deposit become a part of this Lease Contract and will supersede any Return,5urrendei-. and Abandonment». We will store and care for conflicting provisions of this printed lease form. property removed under this section. We may sell or otherwise the dispose of the property 28 days after you have abandoned See Additional Special Provisions apartment. and we may apply the proceeds of such sale to the removal. care and storage costs and expenses according to state statute. You will be notified of the sale at least 14 days prior to the sale by personal service or written notice sent to your last known address by certified mail. See any additional special provisions. 14. I-'AILING To PAY FIRST MON'rIrs RENT. iryou don't pay the first month's rentwhen or before the Lease Contract begins. and subject 11.EARLY MOVE-OUT. You'll be liable to us fora reletting charge of to our duty to mitigate our damages. we may end your right of s 1 658 (not to exceed 100% of the highest monthly! rent occupancy and recover damages. future rent, reletting charges, during the lease term) if you: attorney's fees. court costs, and other lawful charges. Our rights (1) fail to give written move-out notice as required ln paragraph and remedies under paragraphs 11 (Early Move-Out) and 34 (Default 51 (Move~Out Notice): or by Resident) apply to acceleration under this paragraph. [2) move out without paying rent in full for the entire lease term or renewal period: or 15.RENT INCREASES AND LEASE CONTRACI' CHANGES. No rent increases or Lease Contract changes are allowed before the initial (3) move out at our demand because of your default. Lease Contract term ends, except for changes allowed by any special The relating charge Is not a cancellation fee and does not release you in paragraph 10 [Special Provisions), by a written provisions from your obligations under this Lease Contract. "" ium or amen " signed by you and us. or by reasonable Not a Release. The reletting charge is not a lease cancellation fee changes of apartment rules allowed under paragraph 19 (Community orbuyout fee. itis an agreed-to liquidated amount covering only part Policies or Rules). lf, at least 5 days before the advance notice deadline of our damages; that is. our time. effort. and expense in finding and referred to in paragraph 3 (Lease Term). we give you written notice processing a replacement. These damagesare uncertain and difficult of rent increases or lease changes effective when the lease term or to ascertain—particularly those relating to inconvenience. paperwork, renewal period ends. this Lease Contract will automatically continue advertising. showing apartments, utilities for showing, checking month-twmonth with the increased rent or lease changes. 'l'he new prospects. office overhead, marketing costs. and locator-service fees. modified Lease Contract will begin on the date stated in the notice You agree that the reletting charge is a reasonable estimate of such (without necessity of your signature) unless you give us written damages and that the charge is due whether or not our reletting move- out notice under paragraph 51 (Move-Out Notice). attempts succeed. lfno amount is stipulated. you must pay our actual relettingcosts so faras they can bedetermlned.'l'he reletting charge 16.DELAY OF OCCUPANCY. if occupancy is or will be delayed for does not release you from continued liability for: future or past-due construction. repairs. cleaning. or a previous resident's holding rent; charges for cleaning. repairing repainting. or unretumed keys: over, we're not responsible for the delay. The Lease Contract will or other sums due. remain in force subject to: (1] abatement of rent on a daily basis during delay; and (2) your right to terminate as set forth below. 12.nElMBURSEMENT. We agree to make the premises and all common Termination notice must be in writing. After termination, you are areas fit for the use intended by the parties and to kecp the premises entitled only to refund of deposit(s) and any rent paid. Rent abatement in a reasonable repair during the term ofthis Lease Contract. However, or lease termination does not apply if delay is for cleaning or repairs you must promptly reimburse us for repairs due to the willful. that don't prevent you from occupying the apartment. malicious, or irresponsible conduct by you or your guests or occupants. if there is a delay and we haven't given notice of delay as set forth We may require payment at any time. including advance payment of immediately below, you may terminate up to the date when the repairs for which you're liable. Delay in demanding sums you owe is not a waiver. apartment is ready for occupancy. but not later. [1) If we give written notice to any of you when or after the initial 13.?ROPBRTY LEI-'1' IN APARTMENT. Under Minnesota law. we may term as set forth in Paragraph 3 (Lease Term) —and the notice remove and/or store all property remaining in the apa rtment or in states that occupancy has been delayed because of construction common areas [including any vehicles you or any occupant or guest or a previous resident's holding oven and that the apartment o 2023, National Apartment Association. Inc. - 4/2023, Minnesota Page 2 of B'Mmzze elem, *4 pmpmw 27-CV-HC-24-5230 Filed in District Court State of Minnesota 7/30/2024 4:47 PM will be ready on a specific date—you may terminate your we are charged a fee, charge, or tax,based upon youruse or occupancy tenancywithin 3 days of your receivlng the notice, but not later. of theapartment. we may add this charge as Additional Rent,durlng the term of the Lease Contract, with thirty (30) days advance written (2) if we glve written notice to any of you before the initial term notice to you. After this written notice (the amountorapproximate as set forth in Paragraph 3 (Lease Term) and the notice states amount of the charge.wil| be included),you agree to pay,as Additional that construction delay is expected and that the apartmentwill Rent, the amount of the charge, tax or fee imposed upon us, as a be ready for you to occupy on a spcclfic date, you may terminate result of your occupancy. As examples, these charges can include. your tenancy within 7 days after any of you receives written butare notlimited to: any charges we receive forany zoning violation. notice, but not later. The readiness date is considered the new sound, noise or litter charge: any charge under any nuisance or initial term as set forth in Paragraph 3 (Lease Term] for all chronic nuisance type statute, 911 or other life safety. per person, date purposes. This new date may not be moved to an earlier or per unit charge or tax and any utility hill unpaid by you, which unless we and you agree. is then assessed to us for payment. 17.AD VALOREM TAXES/FEES AND CHARGES - ADDITIONAL RENT. 18.DISCI.OSURE RIGHTS. if someone requests information on you Unless otherwise prohibited by law. if. during the term of this or your rental history for law-enforcement. governmental. or Agreement. anylocality, city, state, or Federal Government imposes business purposes, we may provide it. upon Us, any fee, charge, or tax. which is related to or charged by the number of occupants. or by the apartment unit Itself. such that While You're Living in the Apartment 19.COMMUNITY POLICIES 0R RULES. You and all guests and 22.PARKING. We may regulate the time. manner. and place ofparking occupants must comply with any written apartment rules and cars, trucks, motorcycles, bicycles, boats. trailers, and recreational community policies. including instructions forcare of our property. vehicles by anyone. We may have unauthorized or illegally parked To the extent they are not inconsistent with this Lease Contract or vehicles towed under an appropriatestatute. Avehicleis unauthorized Minnesota law. our mics are considered part of this LeaseContract. orillegally parked in the apartment community ifit: - with Mi law. we may Upon advance notice and (1) has a flat tire or other condition rendering it inoperable; or - - make reasonable changes to the said written rules. (2) is on jacks, blocks or has wheel(s) missing; or (3) has no current license plate or no current registration and/or 20.].IMITATIONS 0N CONDUCT. The apartment and other areas inspection sticker: or reserved for your private use must be kept clean and free of trash. ofat least weekly (4) takes up more than one parking space: or garbage. and other debris.1'rash must be disposed (5] belongs to a resident or occupant who has surrendered or in appropriate receptacles in accordance with local ordinances. abandoned the apartment; or Passageways may be used only for entry or exit. You agree to keep [6] is parked in a marked handicap space without the legally all passageways and common areas free of obstructions such as required handicap insignia: or trash. storage items, and all forms of personal property. No person (7) ls parked in space marked for manager, staff, or guest at the shall ride or allow bikes. skateboards. or other similar objects in office; or the passageways. Anyswimming pools, saunas, spas, tanning beds, (8) blocks another vehicle from exiting: or exercise rooms. storerooms, laundry rooms, and simllarareas must (9] is parked in a fire lane or designated "no parking" area; or be used with care in accordance with apartment rules and posted or (10] ls parked in a space marked for other resident(s) or unit(s); signs. Glass containers are prohibited in all common areas. You, (11) is parked on the grass, sidewalk, or patio; or your occupants, or guests may not anywhere in the apartment (12)blocks garbage trucks from access to a dumpster: or community: use candles or use kerosene lamps or kerosene heaters (13) belongs to a resident and is parked in a visitor or retail parking without our prior written approval; cook on balconies or outside; space. or solicit business or contributions. Conductingany kind of business (including child care services) in your apartment or in the apartment 23.REI.EASE 0F RESIDENT. Unless you're entitled to terminate your community is prohibited—except thatany lawful business conducted tenancy under paragraphs 10 (Special Provisions), 16 (Delay of 'at home' by computer. mail, or telephone is permissible if customers, 0ccupancy),32 (Responsibilities of 0wner),44 (Rightof Victims of clients. patients, or other business associates do not come to your Domestic/lbuse to Terminate Tenancy), or52 (Move-Out Procedures): apartment for business purposes. We may regulate: (l) the use of or unless. upon your death, your personal representative gives patios, balconies, and porches: (2) the conduct of furniture movers statutory notice pursuant to paragraph 43 (Termination of Lease and delivery persons; and (3) recreational activities in common Upon Death of Resident), you or your heirs won't be released from areas. You'll be liable to us for damage caused by you or any guests this Lease Contract for any reason including, but not limited to, or occupants. voluntary or involuntary school withdrawal or transfer, voluntary We may exclude from the apartment community guests or others or involuntary job transfer, marriage, separation, divorce, who, in our judgment. have been violating the law, Violating this reconciliation, loss of co-rcsidents, loss of employment or bad health. Lease Contract or any apartment rules, ordisturblng other residents, 24.MILITARY PERSONNEL CLAUSE. All parties to this Lease Contract neighbors, visitors, or owner representatives. Wc may also exclude from any outside area or common area a person who refuses to agree to comply with any federal law, including. but not limited to the Service Member's Civil Relief Act, orany applicable state law(s], show photo identification or refuses to identify hlmselfor herself as a resident, occupant. or guest of a specific resident in the if you are seeking to terminate this Lease Contract and/or subsequent renewals and/or Lease Contract extensions under the rights granted community. by such laws. You agree to notify us if you or any occupants are convicted of any felony, or misdemeanor involving a controlled substance, violence 25. RESIDENT SAFETY AND PROPERTY LOSS. You and all occupants to another person or destruction of property. You also agree to and guests must exercise due care for your own and others' safety notify us if you or any occupant registers as a sex offender in any and security,especiallyin the useofsmoke detectors,carbon monoxide state. informing us of crimi nal convictions orsex offender registry detectors, keyed deadbolt locks, keyless bolting devices, window does not waive our right to evict you. latches, and access control devices. 21.?ROHIBITED CONDUCT. You, your occupants or guests. or the Smoke Detectors/Carbon Monoxide Detectors. We'll furnish may not _, u in the following activities: smoke detectors and carbon monoxide detectors only if required by guests of any nr r behaving in a loud or obnoxious manner: disturbing or threatening statute, and we'll test them and provide working batteries when you the rights. comfort, health, safety. or convenience ofothers (including first take possession. After that. you must test the smoke detectors our agents and employees) in or near the apartment community: and the carbon monoxide detectors on a regular basis, and pay for and replace batteries as needed. unless the law provides otherwise. disrupting our business operations; manufacturing, delivering, We may replace dead or missing batteries at your expense, without possessing with intent to deliver, or otherwise possessinga controlled substance or drug paraphernalia; engaging In or threatening prior notice to you. You must Immediately report smoke-detector violence; possessing a weapon prohibited by state law: discharging malfunctions to us. Neither you nor others may disable neither the a firearm in the apartment community: displaying or possessing a smoke detectors nor the carbon monoxide detectors. if you damage or disable thesmokedetcctor orcarbon monoxide detector. orremove gun. knife. or other weapon in the common area in a way that may alarm others; storing anything in closets having gas appliances: a battery without replacing it with a working battery, you may be liable to us under state statute forSlOD plus one month's rent, actual tampering with utilities or telecommunications: bringing hazardous materials into the apartment com munity: or injuring ourreputation damages, and attorney's fees. if you disable or damage the smoke detector orcarbon monoxide detector, or fail to replace a dead battery by making bad faith allegations against us to others. or report malfunctions to us. you will be liable to us and others for any loss, damage, or fines from fire, smoke, or water. O 2023.Natlona| Apartment Association. Inc. 4/2023. Minnesota - Page 3 ofaWm 612mm "5 pmpmw- 27-CV-HC-24-5230 Filed in District Court State of Minnesota 7/30/2024 4:47 PM Casualty Loss. We're not liable to any resident, guest, or occupant utility costs. We may turn off equipment and interrupt utilities as for personal injury or damage orloss of personal property from any needed to avoid property damage or to perform work. If utilities cause. including but not limited to: fire, smoke, rain. flood, water malfunction or are damaged by fire, water, or similar cause, you and pipe leaks, hail, ice, snow. l

Related Contentin Hennepin County

Case

Hickory Ridge LLLP vs Tamera Peeler, John Doe, Jane Doe

Aug 06, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5454

Case

Park Place Off Broadway LLC vs Varneshia Thames; John Doe; Jane Doe

Aug 08, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5502

Case

Urban Neighborhood Minneapolis LLC vs Saniah Blakemore; John Doe; Jane Doe

Aug 05, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5381

Case

Aug 05, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5386

Case

Jazz Properties Minnesota LLC vs Gabriel Smith, Ireece Smith, John Doe, Jane Doe

Aug 07, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5468

Case

Cedar Riverside Limited Partnership vs Farhan Kud Quran

Aug 05, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5368

Case

Bryant Baker LLC vs MARQUEZ RAYVON HORNE, John Doe, Jane Doe

Aug 07, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5478

Case

Villa Del Coronado Associates Limited Partnership vs Jasmine Myles, John Doe, Jane Doe

Aug 06, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5438

Ruling

BASSETT UNIFIED SCHOOL DISTRICT VS DELTERRA REAL ESTATE SERVICES, INC. DBA DELTERRA GROUP

Aug 07, 2024 |21PSCV00399

Case Number: 21PSCV00399 Hearing Date: August 7, 2024 Dept: G Defendant Del Terra Real Estate Services, Inc.s Motion for Summary Judgment or Adjudication Respondent: Plaintiff Bassett Unified School District TENTATIVE RULING Defendant Del Terra Real Estate Services, Inc.s Motion for Summary Judgment or Adjudication is DENIED. BACKGROUND This is a breach of contract action arising from an agreement to provide construction management services. In April 2015, Plaintiff Bassett Unified School District (BUSD) entered into a written agreement with Defendant Del Terra Real Estate Services, Inc. (Del Terra) in which Del Terra agreed to provide construction management services for BUSDs new and existing construction projects. In 2018 and 2019, the agreement between BUSD and Del Terra was extended. Subsequently, BUSD alleges Del Terra breached the agreement by overbilling BUSD and failing to maintain proper records. On May 17, 2021, BUSD filed a complaint against Del Terra and Does 1-100, alleging the following causes of action: (1) breach of contract, (2) breach of fiduciary duty, (3) negligence, (4) intentional misrepresentation, (5) constructive fraud, and (6) negligent misrepresentation. On September 17, 2021, BUSD filed a First Amended Complaint (FAC) against the same defendants alleging the same causes of action. On January 4, 2022, the Court sustained a demurrer by Del Terra to BUSDs fourth and fifth causes of action without leave to amend. On February 3, 2022, Del Terra filed a cross-complaint against BUSD and Roes 1-100, alleging the following causes of action: (1) breach of contract, (2) breach of the covenant of good faith and fair dealing, and (3) declaratory relief. On March 25, 2024, Del Terra filed the present motion for summary judgment or adjudication. A hearing on the motion is set for August 7, 2024, with a post-mediation status conference/trial setting conference on February 10, 2025. REQUESTS FOR JUDICIAL NOTICE BUSD requests the Court take judicial notice of a news release by the Los Angeles County District Attorneys Office and election results published by the Los Angeles County Registrar-Recorder/County Clerk. Because the Court may take judicial notice of the official acts of this state and its entities pursuant to Evidence Code section 452, subdivision (c), BUSDs requests are GRANTED. EVIDENTIARY OBJECTIONS BUSDs evidentiary objections are OVERRULED as to Nos. 1, 2, 3, 4, 5, and 6. The Court declines to considers Del Terras evidentiary objections as they have not been made in compliance with Rule 3.1354, subdivision (b) of the California Rules of Court. ANALYSIS Del Terra moves for summary judgment or adjudication on the grounds that BUSDs first cause of action for breach of contract, second cause of action for breach of fiduciary duty, third cause of action for negligence, and sixth cause of action for negligent misrepresentation are barred by the applicable statute of limitations. In the alternative, Del Terra claims the second cause of action, third cause of action, and sixth cause of action are barred as a matter of law by the economic loss rule. Last, Del Terra claims the second cause of action is also barred as a matter of law because Del Terra did not owe a fiduciary duty to BUSD. For the following reasons, the court DENIES Del Terras motion. Legal Standard A motion for summary judgment or adjudication provides courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) It must be granted if 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. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119, quoting Code Civ. Proc., § 437c, subd. (c).) To establish a triable issue of material fact, the opposing party must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc., § 437c, subd. (f)(1).) Statutes of Limitations Del Terra argues they are entitled to summary judgment or adjudication of BUSDs first cause of action for breach of contract, second cause of action for breach of fiduciary duty, third cause of action for negligence, and sixth cause of action for negligent misrepresentation on the grounds that they are time-barred. The court disagrees. Legal Standard The statute of limitations for a cause of action for breach of a written contract is four (4) years. (Code Civ. Proc., § 337, subd. (a).) For a cause of action based on breach of fiduciary duties, the statute of limitations is also four (4) years unless the breach involves fraud or professional negligence. (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1479.) The statute of limitations for negligence is two (2) years, while the statute of limitations for fraud is three (3) years (Code Civ. Proc., §§ 338, subd. (d); 339, subd. (1).) A statute of limitations generally begins to run at the time when the cause of action is complete with all of its elements. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 (Norgart).) But an exception to this rule is the discovery rule, which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 (Fox).) A plaintiff has reason to discover a cause of action when he or she has reason at least to suspect a factual basis for its elements. (Ibid, quoting Norgart, supra, 21 Cal.4th at p. 398.) Because [t]here are no hard and fast rules for determining what facts or circumstances will compel inquiry by the injured party and render him chargeable with knowledge, accrual of a statute of limitations is generally a question of fact. (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 597; Fox, supra, 35 Cal.4th at p. 810 [Resolution of the statute of limitations issue is normally a question of fact.].) But whenever reasonable minds can draw only one conclusion from the evidence, the question becomes one of law. (Snow v. A.H. Robbins Co. (1985) 165 Cal.App.3d 120, 128.) Discussion In the FAC, BUSD alleges the following. In April 2015, BUSD and Del Terra entered into an agreement in which Del Terra agreed to provide program and construction management services for BUSDs existing projects and new projects relating to BUSDs Measure V bond program. (FAC, ¶ 4.) In 2019, Del Terra amended the agreement to include additional fees. (FAC, ¶ 17.) In addition to generally alleging that Del Terra breached its professional obligations and legal obligations pursuant to the 2015 Agreement and 2019 Amendment (FAC, ¶ 25(a), (b)), BUSD alleges two types of breach or wrongdoing. First, BUSD alleges Del Terra breached its obligations pursuant to the 2015 Agreement and 2019 Amendment by (1) failing to properly bill and submit invoices for program and construction management services (FAC, ¶ 25(c)-(e)), (2) requesting the 2019 Amendment for additional compensation when Del Terra has failed to complete the projects required by the 2015 Agreement (FAC, ¶ 31(h)), (3) invoicing BUSD for services based on an unapproved 36-month schedule without regard for the actual level of work performed (FAC, ¶ 31(i)), (4) improperly invoicing project costs as construction costs to increase Del Terras fees (FAC, ¶ 31(j)), and (5) hiring consultants as additional services to perform unnecessary work or work that was to be completed by Del Terra (FAC, ¶ 31(k).) Second, BUSD alleges Del Terra breached its obligations pursuant to the 2015 Agreement and 2019 Amendment by (1) failing to obtain proper certification of its various projects from the Division of the State Architect (FAC, ¶ 25(f)), (2) failing to properly maintain records and documents for Del Terras projects (FAC, ¶ 25(g), 26), and (3) failing to provide documents for BUSDs review and audit (FAC, ¶ 25(h)). BUSD alleges Del Terras billing practices resulted in BUSD overpaying Del Terra for services provided and performed. (FAC, ¶ 27.) BUSD also alleges Del Terras handling of documents and failure to obtain certifications resulted in BUSD incurring additional costs to obtain the missing certificates, organize its records, and recreate missing documentation. (FAC, ¶ 27.) In this case, Del Terra argues BUSDs causes of action are time-barred because BUSD discovered or had reason to discover Del Terras alleged misconduct more than four (4) years ago in 2016. (Motion, p. 13:15-28.) In support of this argument, Del Terra relies on the following facts. On May 11, 2016, Ian M. Guajardo, BUSDs director of facilities, development, and transportation, sent an email to Dr. Antoine Hawkins, BUSDs chief business officer, that raised concerns about Del Terras method of operations within the school district and how they are handling the business side of the modernization program. (Defendants Separate Statement (DSS), ¶ 22, 24, 27.) Guajardo recommended that BUSD review the procedures and practices for the control of bond funds and future modernization projects. (DSS, ¶ 28.) But while these facts suggest Guajardo was aware there were issues with Del Terras billing, a review of the actual email suggests otherwise. The email states as follows in its entirety: Antoine, I have a few concerns regarding Del Terras method of operation within the school district in how they are handling the business side of the modernization program. All bids, notices of completions, budget review, expenditures, purchase orders/requisitions, board agenda items, notice to proceed to come for the Facilities / Business office. In my opinion, theres no check-in-balance in how the bond project is being handled? For example, all sealed bids should be sent to the business office on the perspective due dates and opened in a public forum by the business staff (not the facilities or Del Terra). All reference checks and verifications of the bid packets must by handled by District staff not Del Terra. This can and will be a problem if one of the contractors makes an official protest regarding their bid packet or the handling of the bids. In my opinion, we must look over all of the procedures regarding the past practices that have taken place and install new practices for the best interest of the district. This will be the only way to control the bond funds and future modernization projects. This can be a problem if the auditors are reviewing the financial records and other documentation that could be a negative finding. Please let me know if you have any questions or comments. Thank you. Ian M. Guajardo. (MSJ, Ex. E, Depo Ex. 132.) Although the email discusses concerns with how Del Terra is handling the business side of BUSDs modernization programs, it appears the crux of the email is to suggest better oversight from BUSD to prevent any issues that may arise if there is an audit or challenge to bidding results by a contractor. Nowhere in the email does Guajardo claim Del Terra is engaging in improper billing or mishandling records as alleged in the FAC. And while Dr. Hawkins and Guajardo subsequently discussed Guajardos concerns, neither the separate statement nor the evidence cited establishes the specifics of what they discussed. (DSS. ¶ 30; MSJ, Ex. E, p. 84:5-85:7.) On July 28, 2016, Guajardo sent an email to Dr. Hawkins that expressed concerns over billing issues with Del Terra. (DSS, ¶ 31.) Guajardo reported that BUSD received a request for payment from SVA Architects that lacked supporting documentation, including a previous contract or board-approved agenda item. (DSS, ¶ 32.) The text of the email reads as follows: Dr. Antoine, I need to bring a billing issue to your attention regarding SVA architects that we have received a request for payment. It appears that this work was performed at Bassett HS for the HVAC unit/equipment that was installed as part of the modernization program. The problem that we have discovered there is NO contract, board approved agenda item, addendum or anything else regarding the extra services that was provided or agreed upon for this work to proceed. Jerry has emails indicating the approval for this additional work but no signed agreement or board agenda supporting the topic. Barbara and I had a telephone conference discussion with Jerry regarding this topic. He has emails from the previous Superintendent agreeing with the additional work/equipment regarding this project. Barbara has checked her previous emails and there is no support information for the approved additional work? It is my opinion, the district should not pay the requested amount of $43,393.75 without supporting documentation from Del Terra and SVA architects. I have attached a copy of the statement from SVA Architect and highlighted the area in yellow for your review and comments. Until this matter has been resolved I asked Barbara not to encumber the requested amount of $43,393.75. Barbara may add additional information regarding this topic? We can discuss this topic next week. Thank you. Ian M. Guajardo. (MSJ, Ex. E, Depo Ex. 7.) Like the first email, the second email does not actually accuse Del Terra of any billing irregularities. Instead, it merely advises the delay of payment until Del Terra and SVA Architects provide additional documentation. Notably, Del Terra fails to provide any additional evidence that establishes if this billing issue was cleared up. This omission important since, if Del Terra subsequently provided the proper documentation for this payment request, the email would not have put BUSD on notice of Del Terras billing issues. The court finds these facts alone insufficient to put a reasonable person on inquiry notice of the allegations that Del Terra was billing for incomplete work and failing to properly maintain records. Ultimately, the court determines that it may not find as a matter of law that the facts are sufficient to place BUSD on inquiry notice. Furthermore, as noted above, the FAC alleges Del Terra also committed breaches of the 2019 Amendment. Del Terra fails to contradict or address these allegations with any facts or evidence. The failure to address a material allegation in the pleadings by a moving party defendant is fatal to a motion for summary judgment or adjudication on that cause of action or issue. (See Teselle v. McLoughlin¿(2009) 173 Cal.App.4th 156, 171.) This is because the allegations in the pleading frame the material facts at issue and the failure to address these allegations constitutes a failure to establish an absence of triable material facts. (Id., at p. 172-173.) Additionally, since the 2019 Amendment was presented in July of 2019 and effective as of June 2019 (FAC, ¶ 17), any alleged breaches of it would be within two years of when Plaintiff filed the present action in May 2021. Accordingly, Del Terra failed to demonstrate that BUSDs causes of action are time barred. Economic Loss Rule Del Terra next contends they are entitled to summary judgment or adjudication of BUSDs second cause of action for breach of fiduciary duty, third cause of action for negligence, and sixth cause of action for negligent misrepresentation on the grounds that they are barred by the economic loss rule. The court disagrees. Legal Standard Pursuant to the economic loss rule, there is no recovery in tort for negligently inflicted purely economic losses, meaning financial harm unaccompanied by physical or property damage. (Sheen v. Wells Fargo Bank. N.A. (2022) 12 Cal.5th 905, 922 (Sheen).) It functions to bar claims in negligence for pure economic losses in deference to a contract between litigating parties. (Id., at p. 922.) Tort damages have been permitted in contract cases where . . . the duty that gives rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm. (Erlich v. Menezes (1999) 21 Cal.4th 543, 551-552 (Erlich).) Discussion In this case, Del Terra contends BUSDs damages for breach of fiduciary duty, negligence, and negligent misrepresentations arise of BUSDs contract with Del Terra and involve nothing more than purely economic losses. (Motion, p. 18:5-16.) In opposition, BUSD contends Del Terras answer to the FAC fails to allege the economic loss rule as a defense to these causes of action, with the exception of BUSDs cause of action for negligence. (Del Terra Answer to FAC, ¶ 22.) BUSDs contention fails as the economic loss rule is not a defense to a cause of action. Rather, the existence of damages other than purely economic loss is an element of a plaintiff's common law cause of action. (Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194, 1215.) As to the second cause of action for breach of fiduciary duty, BUSD contends the economic loss rule does not apply because the FAC alleges intentional conduct. (Opp., p. 28:10-14.) Notably, it alleges Del Terras breaches of fiduciary duty were committed willingly, fraudulently, and recklessly. (FAC, ¶ 31.) Del Terra has failed to demonstrate an absence of triable material facts on this issue as its separate statement does not include facts addressing this issue beyond pointing to the fact that the court sustained their demurrer to BUSDs separate causes of action for fraud. (DSS, ¶ 14.) Thus, the court finds the economic loss rule does not bar BUSDs breach of fiduciary duty claim. With regard to the sixth cause of action for negligent misrepresentation, BUSD contends negligent misrepresentation is a distinct cause of action from negligence and not subject to the economic loss rule. (Opp., p. 28:15-19.) In support of this contention, BUSD cites to a federal district court case where the court found negligent misrepresentation was not barred by the economic loss rule because it was a species of fraud. (Whittington v. KidsEmbrace, LLC (C.D. Cal. July 19, 2021, No. CV 21-1830-JFW(JPRx)) 2021 WL 3076646, *6, citing Kalitta Air, L.L.C. v. Central Texas Airborne Systems, Inc. (9th Cir. 2008) 315 F3d.Appx. 603, 607 [We hold that California law classifies negligent misrepresentation as a species of fraud, [Citation], for which economic loss is recoverable.].) In reply, Del Terra failed to point to contrary authority. Thus, the court finds the economic loss rule does not bar BUSDs negligent misrepresentation claim. Last, BUSD contends the economic loss rule does not apply because the 2015 Agreement and 2019 Amendment were contracts for professional services. (Opp., p. 28:24-29:9.) It is well established that the negligent failure to exercise reasonable care and skill in undertaking to perform a service contract of this type is a tort, as well as a breach of contract. (Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1435; see also North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774 [A contract to perform services gives rise to a duty of care which requires that such services be performed in a competent and reasonable manner. A negligent failure to do so may be both a breach of contract and a tort.].) In reply, Del Terra failed to address or point to contrary authority. Thus, the court finds the economic loss rule does not bar BUSDs negligence claim based on Del Terras allegedly negligent management of BUSDs bond programs. Accordingly, Del Terras motion is DENIED on these grounds. Breach of Fiduciary Duty (Second Cause of Action) Del Terra maintains BUSDs second cause of action for breach of fiduciary duty fails as a matter of law because Del Terra did not owe BUSD a fiduciary duty. The court disagrees. Legal Standard The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) Discussion In the FAC, BUSD alleges Del Terra agreed to serve as BUSDs agent and fiduciary in Article 1.3.2 of the 2015 Agreement. (FAC, ¶ 7, 30.) BUSD also alleges the 2019 Amendment included the same provision. (FAC, ¶ 30.) In both agreements, Article 1.3.2 states as follows: Relationship. Manager serves as Districts agent and fiduciary in performing services under this Agreement. Manager shall, in this capacity, maintain confidences and provide professional services in a manner consistent with Districts economic, educational and governmental best interests. (FAC, Ex. 1, § 1.3.2; Ex. 4, § 1.3.2.) While the 2015 Agreement and 2019 Amendment state Del Terra serves as BUSDs fiduciary, Del Terra maintains the partys terms do not control because the agreements fail to establish the relationship is a fiduciary one. (Motion, p. 17:1-18:2.) A fiduciary relationship is any relation existing between parties to a transaction wherein one of the parties is . . . duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter's knowledge or consent. A fiduciary relation in law is ordinarily synonymous with a confidential relation. (Gilman v. Dalby (2009) 176 Cal.App.4th 606, 613-614, quoting Herbert v. Lankershim (1937) 9 Cal.2d 409, 483.) In the commercial context, traditional examples of fiduciary relationships include those of trustee/beneficiary, corporate directors and majority shareholders, business partners, joint adventurers, and agent/principal. (Id., at p. 614.) In this case, Del Terra maintains the agreements do not evidence an intent by Del Terra to undertake the obligations of a fiduciary and subordinate its interests to and for the benefit of BUSD. But the agreements do so by requiring the Del Terra to provide services in a manner consistent with the Districts economic, educational and governmental best interests. (FAC, Ex. 1, § 1.3.2; Ex. 4, § 1.3.2.) Further, the finds the agreements create an agency relationship which gives rise to fiduciary duties. In contesting the existence of an agency relationship, Del Terra points to Article 10.15 which states as follows: Manager is and shall at all times remain as to the District a wholly independent contractor. Neither the District nor any of its agents shall have control over the conduct of Manager or any of Managers officers, agents, or employees, except as herein set forth. Manager shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the District. (FAC, Ex. 1, § 10.15; Ex. 4, § 10.15.) Del Terra maintains this provision conflicts with Article 1.3.2. The court is not persuaded by this argument since Article 10.15 merely prevents Del Terra from representing to others that it is BUSDs agent. Article 10.15 does not prevent Del Terra from serving as BUSDs agent for the purposes of managing its bond projects. (See Porter v. Arthur Murray, Inc. (1967) 249 Cal.App.2d 410, 420 [It may be freely asserted that one may be the agent of another without holding himself out to be such agent.].) As such, the court finds the 2015 Agreement and 2019 Amendment required Del Terra to act consistently with BUSDs best interests as a fiduciary and establish that Del Terra was BUSDs agent, owing fiduciary duties to BUSD. Accordingly, Del Terras motion is DENIED as to this cause of action. CONCLUSION Based on the foregoing, the court DENIES Del Terras motion for summary judgment or summary adjudication.

Ruling

JILL GREENBERG 2019 TRUST VS ERNEST FINANCIAL, LLC, ET AL.

Aug 06, 2024 |21STCV43201

Case Number: 21STCV43201 Hearing Date: August 6, 2024 Dept: 61 JILL GREENBERG 2019 TRUST vs ERNEST FINANCIAL, LLC, et al. (Commercial) TENTATIVECross-Defendant Aaron Serruyas Motion to Compel Further Responses to Requests for Production, Requests for Admission, Special Interrogatories, and Form Interrogatories, from Cross-Complainant David Bogner is GRANTED. Sanctions are awarded against Bogner in the amount of $8,650.00. Brandon C. Murphys Motion to be Relieved as Counsel for Defendant and Cross-Complainant David Bogner is DENIED. Plaintiff to give notice.DISCUSSION I. MOTION TO COMPEL FURTHER PRODUCTION OF DOCUMENTS A party may demand that any other party produce . . . a document that is in the possession, custody, or control of the party on whom the demand is made. (Code Civ. Proc., § 2031.010(b).) The demanding party may move for an order compelling further response to the demand if the demanding party deems that (1) a statement of compliance with the demand is incomplete, (2) a representation of inability to comply is inadequate, incomplete, or evasive, or (3) an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310(a).) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand, and [t]he motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2031.310(b).) A motion to compel a further response to an inspection demand must set forth specific facts showing good cause justifying the discovery sought by the inspection demand. (Code Civ. Proc., § 2031.310(b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Unless there is a legitimate privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance. (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 444.) Once the moving party demonstrates good cause for the discovery, the burden is on the responding party to justify any objection or failure to fully respond to the inspection demand. (Coy v Superior Court (1962) 58 Cal.2d 210, 220.) Any party may obtain discovery . . . by propounding to any other party to the action written interrogatories to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) A propounding party may move for an order compelling further responses if the party believes the answers are incomplete, evasive, or the objections are without merit. (See Cal. Code Civ. Proc. § 2030.300, subd. (d).) A motion to compel further responses to requests for admissions may be made on the grounds that an answer is incomplete or evasive, or an objection is without merit. (Code Civ. Proc. § 2033.290, subd. (a)(1)(2).) Cross-Defendant Aaron Serruya seeks to compel further responses to Form Interrogatories, Special Interrogatories, Requests for Production, and Requests for Admission, from Cross-Complainant David Bogner, on the grounds that Bogners responses to these sets of discovery consist of identical boilerplate objections, stating: Objection. Not relevant to the subject matter of the litigation, not reasonably calculated to lead to the discovery of admissible evidence, attorney-client and attorney work product privileges, vague, ambiguous, overbroad, unduly burdensome, invasion of privacy. Bogners response to Form Interrogatory No. 15.1, which asked for facts and evidence supporting his affirmative defenses, also included this objection, but followed up with a general statement that the defenses were asserted as a protective measure and that discovery was ongoing. (Separate Statement at pp. 9697.) Serruya also argues that Bogners objections were waived, because they were served by regular mail, rather than by e-service as required by California Rules of Court (CRC) Rule 2.251, subd. (c)(3). (Motion at pp. 34.) Bogner in opposition argues that the responses were timely served, that Serruya failed to adequately meet and confer before filing this motion, and that the motion is an improperly consolidated four-in-one motion addressed to four separate sets of discovery. (Opposition at pp. 24.) The motion was preceded by adequate meet and confer efforts. Serruyas counsel conferred with Bogners counsel, and were informed that no supplemental responses were possible because Bogner was unreachable. (Page Decl. ¶¶ 34.) It is unclear what further conference could have accomplished. The motion is also not improper merely for its conjunction of multiple sets of discovery. It is true that attempts to compel further responses to separate discovery requests generally require separate motions for separate requests. Although there is no rule independently stating that a party cannot combine in a single filing what is in effect an effort to compel further responses to four separate discovery requests, there is no universal statutory authority to compel further responses to discovery in general, but rather several independent statutes authorizing and regulating separately motions to compel further responses to interrogatories, motions to compel further responses to requests for production, and motions to compel further responses to requests for admission. (See Code Civ. Proc. §§ 2030.300, 2031.310, 2033.290.) This pattern repeats in CRC rule 3.1345, which requires separate statements for motions to compel further responses to requests for admission, interrogatories, and inspection demands, each motion listed separately. (See CRC Rule 3.1345, subd. (a).) This separate regulation is sensible, as the alternative would provide no effective limits to what a party could demand a court consider in a single discovery motion and thereby compromise the courts ability to control its calendar. . . . [This] statutory authority [is] supported by a leading treatise: Motions to compel compliance with separate discovery requests ordinarily should be filed separately. But they may be joined where the requests are so interrelated as to make separate motions wholly inefficient (e.g., where several defendants have all failed to answer the same set of interrogatories). (Weil & Brown, et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) Chapter 8F, ¶ 8:1140.1.) Here however, Bogners responses simplify matters by supplying the same, identical objection to each discovery request. There are no separate issues to be resolved in the separate sets of discovery only the validity of Bogners single objection. There is thus no need to require separate filings. Ultimately, there is little reason to conclude that Bogner has waived all objections, as responses with objections were served within the time allowed. (See Code Civ. Proc. § 2031.300, subd. (a).) Although not served by electronic means as required under CRC Rule 2.251, they were served by a means ordinarily permitted by the Code of Civil Procedure, and there is little authority to conclude that use of an improper means of service effects a waiver of objections when the service itself is timely. However, Bogner makes no effort to defend his objections, and the motions to compel are properly granted. The request for production are supported by good cause, as they relate to the subject matter of this litigation and are directed to particular allegations in Bogners cross-complaint. Bogner offers no reason for the failure to serve substantive responses, save the lack of communication with his attorney. The motion is therefore GRANTED. II. SANCTIONS Statute provides that the court shall impose sanctions upon a party who unsuccessfully makes or opposes a motion to compel further response to interrogatories, requests for production of documents, or requests for admission, absent substantial justification otherwise. (Code Civ. Proc. §§ 2030.300, subd. (d); 2031.310, subd. (h); 2033.290, subd. (d).) Serruya seeks $8,650 in sanctions against Bogner and his counsel, representing 15 hours of attorney work at $450 per hour ($6,750.00) and 3.8 hours of work at $500 per hour ($1,900.00). (Page Decl. ¶ 14; Blatte Decl. ¶¶ 34.) Given the rationale for allowing the different discovery requests be heard as one motion, the same rationale applies to what the Court finds reasonable attorney fees given the repetitive nature of the objections. Sanctions are awarded in the reduced amount of $1850.00 against Defendant / CrossComplainant Bogner. III. MOTION TO BE RELIEVED AS COUNSEL Cal. Code of Civ. Proc. (CCP) section 284 states that [t]he attorney in an action or special proceeding may be changed at any time before or after judgment or final determination upon either consent of both client and attorney, or upon the order of the court under application of either the client of the attorney, after notice from one to the other. Cal. Rule of Court 3.1362 states the requirements for a motion to be relieved as counsel under CCP section 284. No memorandum is required, but the motion must be accompanied by (1) a declaration stating why a motion has been brought instead of filing a consent (without compromising attorney-client confidentiality), (2) proof of service of the motion, and (3) all hearing dates scheduled in the action or proceeding, including the date of trial, if know. Additionally, [t]he proposed order relieving counsel must be prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel--Civil (form MC-053) and must be lodged with the court with the moving papers. The present motions pertain to attorney Brandon C. Murphy of the firm Bice Murphy Law, counsel for Defendant and Cross-Complainant David Bogner. The motion states there has been a breakdown of the attorney-client relationship such that it would be impossible to continue representing David Bogner, and that the client has refused to participate in this litigation. Trial has been set for April 2026. This is the third hearing on Murphys motion to be relieved as counsel for Bogner. The court denied the first motion on June 3, 2024, because the motion did not include the proof of service required by CRC Rule 3.1362, subd. (d). On June 10, 2024, this court denied the motion again, reasoning that the motion and proposed order did not provide notice to Bogner of all upcoming hearings, and further that the proof of service indicated it was to be served upon a PO Box, rather than Bogners current or last known business or residence address, as required under CRC Rule 3.1362, subd. (d)(1)(A), (B).) In the present motion, Murphy has included a list of upcoming hearings with the proposed order form, in compliance with this courts prior order. However, Plaintiff Jill Greenberg 2019 Trust has once again filed objections, principally arguing that the new address that Murphy offers for service (and which was the destination of service for the present motion) is a Spring Place social club on 9800 Wilshire Boulevard, whose website purports to offer mail service to office members and community members who sign up. (Objection Exh. E.) Once more Plaintiffs objection casts substantial doubt on whether Bogner has been served at his residence or business address, current or not. The motion is therefore defective, as it was served by mail upon the client, without assurance that the service was upon the current or last known residence or business address. (CRC Rule 3.1362, subd. (d)(1)(A), (B).) In any future motion to be relieved, if service upon Bogner is made by mail, Murphy shall declare that the address is Bogners current or last known business or residence address, in keeping with CRC Rule 3.1362. Alternatively, Murphy may serve Bogner by personal service or email, in the latter case providing the court with a proof of service accompanied by a declaration stating that the electronic service address is the client's current electronic service address. (CRC Rule 3.1362, subd. (d)(2).) Brandon C. Murphys Motion to be Relieved as Counsel for Defendant and Cross-Complainant David Bogner is therefore DENIED.

Ruling

LORAN SIMON VS. TODD BRABEC ET AL

Aug 09, 2024 |CGC22601268

Matter on the Discovery Calendar for Friday, August 9, 2024, Line 1, PLAINTIFF LORAN SIMON'S MOTION TO QUASH SUBPOENAS. Continued to October 7, 2024, on the court's motion. No JPT available. =(525)

Ruling

GAETANI REAL ESTATE VS. ZACHARY HOWITT ET AL

Aug 05, 2024 |CUD23672769

Real Property/Housing Court Law and Motion Calendar for Monday, August 5, 2024, line 2. Plaintiff's Motion to Compel Responses to Special Interrogatories is OFF CALENDAR. Insufficient Notice. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified, and the opposing party does not appear.

Ruling

CITIZENS BANK, N.A. VS AMERICAN CITY BANK, ET AL.

Aug 08, 2024 |24STCV02397

Case Number: 24STCV02397 Hearing Date: August 8, 2024 Dept: 58 Judge Bruce Iwasaki Department 58 Hearing Date: August 8, 2024 Case Name: Citizens Bank, N.A. v. American City Bank, et al. Case No.: 24STCV02397 Motion: OSC Re: Default Judgment Moving Party: Plaintiff Citizens Bank, N.A. Responding Party: None as of August 7, 2024. No motion to set aside pending. Tentative Ruling: Plaintiff fails to state a cause of action against Defendants. if the complaint fails to state a cause of action, a default judgment is erroneous and will be set aside on appeal. (Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1153-1154; Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 282.) Plaintiffs request for default judgment must therefore be denied. Background Plaintiff holds a Deed of Trust as to real property located at 1912 Las Flores Drive, Los Angeles, CA 90041 dated April 28, 2008, as Instrument No. 20080733829 (Plaintiffs DOT). Plaintiffs DOT is a second priority deed of trust against the property. Plaintiff filed this action seeking to cancel two other deeds of trust that were recorded prior to Plaintiffs DOT: (1) the deed of trust dated October 19, 1970 and recorded on October 21, 1970 held by Defendant American City Bank (Cloud DOT One); and (2) the deed of trust dated February 19, 1982 and recorded on February 26, 1982 held by Defendant Aetna Finance Corporation. On January 30, 2024, Plaintiff filed a complaint for (1) cancellation of instruments and (2) declaratory relief. Discussion Legal Standard Code of Civil Procedure section 585 permits entry of a default judgment after a party has failed to timely respond or appear. A party seeking judgment on the default by the court must file a Request for Court Judgment and the following documents: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursements; (5) a proposed form of judgment; (6) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment; (7) exhibits as necessary; and (8) a request for attorneys fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court, rule 3.1800.) A defendant who defaults admits only facts well pleaded in the complaint. Thus, if the complaint fails to state a cause of action, a default judgment is erroneous and will be set aside on appeal. (Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1153-1154; Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 282.) If the complaint fails to state a cause of action or the allegations do not support the demand for relief, the plaintiff is no more entitled to that relief by default judgment than if the defendant had expressly admitted all the allegations. Such a default judgment is erroneous, and will be reversed on appeal. (6 Witkin, Cal. Proc. (6th ed. 2021), PWT, §223).) Plaintiff fails to state a claim for cancellation of instrument Civil Code section 3412 states that a written instrument may be cancelled if there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable. To prevail on a claim to cancel an instrument, a plaintiff must prove (1) the instrument is void or voidable due to, for example, fraud; and (2) there is a reasonable apprehension of serious injury including pecuniary loss or the prejudicial alternation of one's position. (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1193-1194.) Plaintiff fails to plead any basis to cancel Cloud One DOT or Cloud Two DOT. Defendants have therefore not admitted to any facts that would entitle Plaintiff to the cancellation of either DOT. Plaintiff fails to allege any facts entitling them to a declaratory order finding that it has priority over Cloud One DOT or Cloud Two DOT Plaintiff fails to allege a declaratory relief cause of action. To be entitled to declaratory relief the party need not establish a right to a favorable declaration. A complaint for declaratory relief is legally sufficient if its sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the parties under a written instrument or with respect to property and requests that the rights and duties of the parties be adjudged by the court. (Lockheed Corp. v. Continental Ins. Co. (2005) 134 Cal.App.4th 187, 221.) The complaint is sufficient if it shows an actual controversy; it need not show that plaintiff is in the right. (Id. at 222.) Plaintiff fails to allege an actual controversy with Defendants. Plaintiff contends that its right, title and interest is first priority, paramount, and free and clear of all interest of Defendant and all other parties, as of April 28, 2008, and at all times thereafter. (Complaint, ¶15.) However, Plaintiff fails to allege that Defendants affirmatively dispute this position. Plaintiff alleges, Plaintiff is informed and believes that each of the Defendants may dispute Plaintiffs contentions therein. (Complaint, ¶16.) Plaintiff has not alleged an actual controversy. Plaintiff has alleged a possible controversy. Plaintiffs Request for Default Judgment is denied for failure to state a cause of action against Defendants Plaintiff fails to state a cause of action against Defendants. Plaintiffs request for default judgment must therefore be denied.

Ruling

Ramzia Kakar vs Homayun Niazmand, also known as Humayon Niazmand

Aug 07, 2024 |STK-CV-URP-2022-0006855

Ramzia Kakar vs. Homayan Niazmand Case No.2022-6855 August 8, 2024 The court having read and considered Defendant's Motion for Leave to File Cross-Complaint filed June 25, 2024 including Defendant's proposed Cross-Complaint, Plaintiff's Opposition and Defendant's Reply rules as follows. Defendant seeks an order of the court allowing Defendant to file his cross-complaint against Plaintiff(CCP 426.10). Defendant's cross-complaint was not filed at the time Defendant answered Plaintiff's Complaint while Defendant was representing himself (decl. Allison Erggelet, p.5). The motion herein was filed within sixty days of Defendant obtaining counsel on May 6 (decl. Allison Erggelet, p.5). Plaintiff argues leave should be denied as the request is untimely. No trial date has been set in this matter. The court finds the subject of Defendant's proposed cross-complaint is the same transaction which is the subject of Plaintiff's Complaint filed August 8, 2022 and therefore meets the definition of the subject matter of a compulsory cross-complaint (CCP 426.10(c). The policy to allow for the filing of compulsory cross-complaints is to avoid " piece meal litigation" and is to be liberally construed (Align Technology, Inc. vs. Tran 179 Cal.App.4th 949) Courts have only a "modicum of discretion" to deny leave to file a mandatory cross-complaint(Gherman vs. Colburn 72 Cal.App.3d 544). The court finds that because leave was sought in timely manner after obtaining counsel, Defendant having been acting in pro per at the time he answered the Complaint herein and no trial having been set the totality of circumstances require the court to grant Defendant leave to file his compulsory cross-complaint though he does so two years after filing his Answer. Defendant's Motion is GRANTED. Hon. George J. Abdallah, Jr. Judge of the Superior Court

Ruling

Phillips vs. Murphy, et al.

Aug 08, 2024 |22CV-0201197

PHILLIPS VS. MURPHY, ET AL.Case Number: 22CV-0201197Tentative Ruling on Motion for Court Order Appointing Real Estate Appraiser: KathrynPhillips, as successor trustee of the Ronald Leroy Smith Living Trust, seeks an order appointing areal estate appraiser pursuant to CCP § 874.311 et seq. Phillips, in her capacity as Trustee of theTrust, has a 50% interest in real property commonly known as 9786 Old Oregon Trail (“Property”)in Redding. The remaining 50% interest is held by Darlene Clark, who is deceased. Clark’s knownheirs are her four sons: Jim Murphy, Johnny Murphy, Terry Murphy, and Roger Murphy. Thefour sons as well as the unknown testate and intestate successors, as well as any other unknownparties claiming any interest in the property, have been served notice of this suit either personallyor by publication, pursuant to this Court’s order. Default was entered as to all Defendants on April29, 2024.The Court finds that the appropriate manner to determine the value of the real property under thecircumstances presented is to order an appraisal by a “disinterested real estate appraiser.” CCP §874.316(a) & (d). The Court appoints Sprenkel Appraisals as proposed by the Plaintiff.The motion is GRANTED. A proposed order was lodged with the Court and will be executed.This matter is set for Monday, September 9, 2024, at 9:00 a.m. in Department 64 forconfirmation of filing of the Appraisal.****************************************************************************** 9:00 a.m. Review Hearings******************************************************************************

Ruling

686-WOPG, A CALIFORNIA LIMITED LIABILITY COMPANY VS DANIEL RODRIGUEZ, ET AL.

Aug 07, 2024 |23STCV12624

Case Number: 23STCV12624 Hearing Date: August 7, 2024 Dept: 73 08/07/24 Dept. 73 Hon. Rolf Treu, Judge presiding 686-WOPG, LLC v. RODRIGUEZ, et al. (23STCV12624) Counsel for Plaintiff/opposing party: Randy Chang (The Chang Firm) Counsel for Defendants/moving party: Brian Wagner (Kutak Rock LLP) demurrer TO SECOND AMENDED complaint (filed 6/27/24) TENTATIVE RULING Defendants demurrer to Plaintiffs causes of action against Defendant Ahn is OVERRULED. Defendants demurrer to Plaintiffs sixth, eighth, and ninth causes of action is SUSTAINED without leave to amend. I. BACKGROUND On June 2, 2023, 686-WOPG, LLC (686-WOPG) filed a breach of contract action against Daniel Rodriguez, individually and as a dba of Pablitos Tacos, and Transcendent Development Group, Inc. (Transcendent). On July 13, 2023, Transcendent filed a Complaint against 686-WOPG and David Ahn (Ahn). On February 5, 2024, the Court found both cases are related and consolidated the cases. On February 28, 2024, the Court sustained the Demurrer of Ahn and 686-WOPG to all causes of action in Transcendents Complaint. On May 15, 2024, the Court sustained in part and overruled in part the Demurrer of Ahn and 686-WOPG to Transcendents FAC. On June 5, 2024, Transcendent filed a Second Amended Complaint (SAC) alleging the following causes of action: C/A 1: Forceable Entry C/A 2: Forceable Detainer C/A 3: Trespass C/A 4: Conversion of Tangible Personal Property C/A 5: Breach of Written Lease Contract C/A 6: Breach of Implied Covenant of Good Faith and Fair Dealing C/A 7: Quiet Enjoyment C/A 8: Interference with Prospective Economic Advantage C/A 9: Unfair Business Practices The SAC alleges the following. In or around July 27, 2021, Plaintiff and Defendant 686-WOPG entered into a written lease agreement for a term of 10 years for the premises located at 686 Spring Street, suite 104, Los Angeles, California. (SAC, ¶ 2.) Defendant, 686-WOPG is a California Limited Liability Company consisting of a single member LLC, fully controlled by Defendant Ahn. (SAC, ¶ 4.) On or about April 14, 2023, Defendants changed the door locks, gate locks, security entry codes, etc. for entry into the aforesaid premises all without permission or consent by Plaintiff. (SAC, ¶ 1.) On April 18, 2024, Defendants Ahn and 686-WOPG (collectively Defendants) filed the instant demurrer, arguing: · All of Plaintiffs causes of action against Defendant Ahn fail because the FAC does not plead an alter ego relationship sufficient to state a claim against him. · Plaintiffs Sixth Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing Fails as it is Duplicative of the Breach of Contract Claim · Plaintiffs Eighth Cause of Action for Interference with Prospective Economic Advantage - Negligent Fails for Lack of Sufficient Facts · Plaintiffs Ninth Cause of Action for Unfair Business Practices (California Business & Professions Code § 17200) Fails for Lack of Sufficient Facts Plaintiff filed an opposition, arguing that the SAC sufficiently sets forth facts to constitute a cause of action. Defendants filed a reply maintaining that Plaintiff failed to plead facts to constitute each of its causes of action. II. ANALYSIS A. Meet and Confer Requirement Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41, subd. (a).) Here, counsel for Defendants submitted a declaration stating she called Plaintiffs counsel to meet and confer regarding the instant motion, but Plaintiffs counsel did not answer or return her call. (Andrews Decl., ¶¶ 2-8.) While the parties did not meet and confer in person or by telephone, the failure to meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., §§ 430.41, subd. (a)(4); 435.5 subd. (a)(4).) Thus, the Court proceeds on the merits. B. Request for Judicial Notice Defendants request judicial notice of the Statement of Information filed July 25, 2023, in the State of California Office of the Secretary of State, File No. BA20231166163. The court may take judicial notice of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States, [r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States, and [f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid. Code § 452, subds. (c), (d), and (h).) The Court grants Defendants request. However, the Court notes that while the Court may take judicial notice of the document, the Court may not take judicial notice of the truth of its contents. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) C. Legal Standard for Demurrer A demurrer tests the sufficiency of whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in contextany defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleading alone, and not the evidence or facts alleged. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaints properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn, supra, 147 Cal.App.4th at p. 747.) D. All Causes of Action against Defendant Ahn Defendant Ahn demurs to the entire SAC on the grounds that it fails to plead an alter ego relationship sufficient to state a claim against him. In Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 235-36, the Court of Appeal held the following was sufficient to allege alter ego liability: Rutherford alleged that Caswell dominated and controlled PDR; that a unity of interest and ownership existed between Caswell and PDR; that PDR was a mere shell and conduit for Caswell's affairs; that PDR was inadequately capitalized; that PDR failed to abide by the formalities of corporate existence; that Caswell used PDR assets as her own; and that recognizing the separate existence of PDR would promote injustice. These allegations mirror those held to pass muster in First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910, 915916, 73 Cal.Rptr. 657. As in First Western, [a]ssuming these facts can be proved, [Caswell] ... may be held liable ... under the alter ego principle. (Id. at p. 916, 73 Cal.Rptr. 657.) Defendants argue that Rutherford failed to allege specific facts to support an alter ego theory, but Rutherford was required to allege only ultimate rather than evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550, 67 Cal.Rptr.3d 330, 169 P.3d 559.) Moreover, the less particularity [of pleading] is required where the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by the plaintiff, which certainly is the case here. (Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 474, 20 Cal.Rptr. 609, 370 P.2d 313.) Therefore, we affirm the trial court's ruling that Rutherford sufficiently pled an alter ego theory of liability. Plaintiff amended its SAC to include allegations that Defendant 686-WOPG, LLC was the alter ego of Ahn, stating: Defendant Anh (1) controlled the business and affairs of Defendant 686-WOPG, LLC; (2) commingled the funds and assets of the corporate entities, and diverted corporate funds and assets for his own personal use; (3) disregarded legal formalities and failed to maintain arms length relationships among the corporate entities; (4) inadequately capitalized Defendant 686-WOPG, LLC; (5) held himself out as personally liable for the debts of the corporate entities; (6) used the corporate entities as a mere shells, instrumentalities or conduits for himself and/or his individual businesses; (7) used the corporate entities to procure labor, services or merchandise for another person or entities; (8) manipulated the assets and liabilities between the corporate entities so as to concentrate the assets in one and the liabilities in another; (9) used corporate entities to conceal their ownership, management and financial interests and/or personal business activities; and/or (10) used the corporate entities to shield against personal obligations, and in particular the obligations as alleged in this Complaint. Defendant 686-WOPG, LLC was not only influenced and governed by Defendant Anh, but there was such a unity of interest and ownership that the individuality, or separateness, of Ahn and Defendant 686-WOPG, LLC has ceased, and that the facts are such that an adherence to the fiction of the separate existence of these entities would, under the particular circumstances, sanction a fraud or promote injustice. Plaintiff is informed and believes that at all relevant times mentioned herein, the acts of the business entities involved were performed by an employee, agent, officer, servant and/or representative of Ahn and Defendant 686-WOPG, LLC. (SAC, ¶¶ 20-22.) The Court finds these new allegations sufficient to plead alter ego liability as to Ahn at this time. As the Rutherford court stated, there is not a heightened pleading standard for alter ego theory; it is adequate for a plaintiff to allege ultimate rather than evidentiary facts and that less particularity [of pleading] is required where the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by the plaintiff, which certainly is the case when analyzing alter ego theory at the pleading stage. (Rutherford Holdings, supra, 223 Cal.App.4th at 236.) Accordingly, the SAC sufficiently establishes ultimate facts to support a reasonable inference of alter ego for pleading purposes. The evidentiary facts proving these allegations are not at issue at this time. As such, the Demurrer to Plaintiffs Second Amended Complaint against Defendant Ahn is OVERRULED. A. Sixth Cause of Action: Breach of Implied Covenant of Good Faith and Fair Dealing A breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself and it has been held that bad faith implies unfair dealing rather than mistaken judgment. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394.) If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated . . . . [T]he only justification for asserting a separate cause of action for breach of the implied covenant is to obtain a tort recovery. (Id. at 1394-95.) To recover in tort for breach of the implied covenant, the defendant must have acted unreasonably or without proper cause. (Id. at 1395, cleaned up.) Here, Plaintiff argues the gravamen of the breach of the implied covenant of good faith and fair dealing cause of action is not allegation of breach of any express contractual terms, but rather, Defendants efforts to undermine or prevent Plaintiff from doing business. Plaintiff added the following allegation: Invariably, this cause of action is premised on the action of the Defendant Anh and Defendant 686-WOPG, LLC refusal to allow Plaintiff to enter the leased premises on the date of the lockout. Even when demanded and confronted, Defendants refused to act in good faith. Instead initiate a false narrative that Plaintiff abandoned the leased premises when it was obvious that Plaintiff had not. (SAC, ¶ 49.) As the Court found in its previous order, Plaintiff has sufficiently alleged its breach of contract cause of action, specifically the existence of the lease, that Plaintiff has paid all rents and obligations, and that Defendants breached the lease by locking Plaintiff out of the premises. (SAC, ¶¶ 1-3.) However, as the Court noted in its previous orders sustaining Defendants demurrer to the Complaints breach of the implied covenant of good faith and fair dealing, this cause of action is subsumed within the fifth cause of action for breach of the lease. The Court again does not find any additional claim is actually stated as the allegations rely on the same alleged act of the breach of the lease. This implied covenant cause of action is not separately supported by any different facts or relief sought. Defendants demurrer to the SACs sixth cause of action is SUSTAINED. B. Eighth Cause of Action: Interference with Prospective Economic Advantage The elements of a claim for intentional interference with prospective economic advantage include (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendants knowledge of the relationship; (3) intentional or negligent acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant. (Crown Imports, LLC v. Superior Court (2014) 223 Cal.App.4th 1395, 1404, cleaned up.) Further, the alleged interference must have been wrongful by some measure beyond the fact of the interference itself. For an act to be sufficiently independently wrongful, it must be unlawful, that is, it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard. (Ibid., cleaned up.) The SAC states that because of the illegal lockout, Plaintiff could not fulfill their obligations to Uber, Grub Hub, Door Dash, Stripe, Hide the Llama, Hungary, The Voice and cater to the 2 Me. (SAC, ¶¶ 55-64.) In all of those relationships, Plaintiff had a reasonable expectation of economic benefit by virtue of supplying to those third parties prepared foods from Plaintiffs facilities at 686 Spring Street, Suite 104, Los Angeles, California. (Ibid.) On April 14, 2023, but for the illegal lockout, Plaintiff would have realized economic benefits from selling the food. (Ibid.) However, as the Court also found in its prior orders, the eighth cause of action is not sufficiently set forth. The cause of action is not adequately set forth with details of the arrangements, what happened, dates, what was impacted, how Defendants knew about Plaintiffs relationships with the third parties, etc. Plaintiffs allegations are still general and conclusory. Plaintiff fails to specify the economic benefit expected to be realized and whether this cause of action is different than damages flowing from the alleged breach of the lease. Defendants demurrer to the SACs eighth cause of action is SUSTAINED. C. Ninth Cause of Action: Unfair Business Practices To set forth a claim for a violation of Business and Professions Code section 17200 (UCL), Plaintiff must establish Defendant was engaged in an unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and certain specific acts. (Bus. & Prof. Code § 17200.) A cause of action for unfair competition is not an all-purpose substitute for a tort or contract action. (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.) Here, the SAC alleges that in illegally locking out Plaintiff, Defendants have engaged in unfair and/or unlawful business practices and have thereby acquired money or property rightfully belonging to Plaintiff by engaging in such unfair business practices. (SAC, ¶¶ 65-71.) The SAC alleges When Defendants illegally locked out Plaintiff on April 14, 2023, its conduct was unlawful and prohibited by law. The action is tortious in nature and not just mere breach of contract. (SAC, ¶ 68.) The Court does not find these allegations adequately set forth a cause of action for violation of section 17200. Plaintiff alleges a breach of contract and as the Court stated in its previous orders sustaining this cause of action, it is unclear what this cause of action adds to the dispute. Plaintiff fails to sufficiently allege unfair, deceptive, or unlawful practice with the requisite particularity. Plaintiff also fails to allege a violation of any particular statute. Based on the foregoing, Defendants demurrer to the SACs ninth cause of action is SUSTAINED. D. Leave to Amend Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, [i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Here, Plaintiff has had multiple chances to state a valid claim for its sixth, eighth and ninth causes of action. Plaintiff did not materially amend its allegations as to these causes of action in the SAC. In the opposition, Plaintiff does not show how these causes of action can be successfully amended to state a valid cause of action. Therefore, the Court does not grant leave to amend. III. DISPOSITION Defendants demurrer to Plaintiffs causes of action against Defendant Ahn is OVERRULED. Defendants demurrer to Plaintiffs sixth, eighth, and ninth causes of action is SUSTAINED without leave to amend.

Document

Minneapolis Public Housing Authority vs Kenneth Calvin

Aug 07, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5479

Document

Minneapolis Public Housing Authority vs Shequita Heard

Aug 06, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5431

Document

St. Louis Park AH I LLLP vs Fadumo Abdisalan, Amal Ahmed, John Doe, Jane Doe

Aug 09, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5524

Document

Cedar Riverside Limited Partnership vs Farhan Kud Quran

Aug 05, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5368

Document

MINNEAPOLIS PUBLIC HOUSING AUTHORITY vs Robert Dixon

Aug 06, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5417

Document

Sela Group, LLC vs Tynisha M. Harris, Kevin M. Barnes, John Doe, Jane Doe

Aug 06, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5442

Document

Barnabas Housing Limited Partnership vs Trevion Figgs

Aug 07, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5465

Document

Namaka Evergreen LLC vs Shemika Ratliff-Mcgee, John Doe, Jane Doe

Aug 08, 2024 |Open |Eviction (UD) |Eviction (UD) |27-CV-HC-24-5506

Complaint-Civil Party: Plaintiff Weidner Apartment Homes Index #1 July 30, 2024 (2024)
Top Articles
Latest Posts
Recommended Articles
Article information

Author: Moshe Kshlerin

Last Updated:

Views: 5630

Rating: 4.7 / 5 (57 voted)

Reviews: 80% of readers found this page helpful

Author information

Name: Moshe Kshlerin

Birthday: 1994-01-25

Address: Suite 609 315 Lupita Unions, Ronnieburgh, MI 62697

Phone: +2424755286529

Job: District Education Designer

Hobby: Yoga, Gunsmithing, Singing, 3D printing, Nordic skating, Soapmaking, Juggling

Introduction: My name is Moshe Kshlerin, I am a gleaming, attractive, outstanding, pleasant, delightful, outstanding, famous person who loves writing and wants to share my knowledge and understanding with you.