Case Number: BC653531 Hearing Date: June 15, 2018 Dept: 32

LAURA SHAPIRO,

Plaintiff,

v.

MORAD BEN NEMAN,

Defendant.

Case No.: BC653531

Hearing Date: June 15, 2018

[TENTATIVE] order RE:

MOTION TO COMPEL RESPONSES TO Simon neman’S SPECIAL INTERROGATORIES

MOTION TO COMPEL RESPONSES TO SIMON NEMAN’S FORM INTERROGATORIES

MOTION DEEMING SIMON NEMAN’S REQUESTS FOR ADMISSIONS ADMITTED

BACKGROUND

This action is brought by seventy-five individual Plaintiffs against eighteen Defendants related to a property located on East Pico Boulevard in Los Angeles. Plaintiffs allege claims arising out of the warranty of habitability, negligence, and various statutory violations.

REQUEST FOR JUDICIAL NOTICE

The Plaintiff’s Request for Judicial Notice is GRANTED. (Cal. Evid. Code §452, 453.)

DISCUSSION

Defendant SIMON NEMAN’S (“Neman”) moves to compel Plaintiffs to provide responses to written discovery. Given that there are seventy-five individual Plaintiffs in this action, the Court granted Sky High’s ex parte application to file consolidated motions as to all Plaintiffs against whom a discovery order is sought. (June 30, 2017 Order; Klein Decl. Exh. A.)

Special Interrogatories and Form Interrogatories

When timely responses to interrogatories are not received, “[t]he party propounding the interrogatories may move for an order compelling response to the interrogatories.” (CCP § 2030.290(b).)

As set forth in the motion, Neman served special interrogatories, set one on Plaintiffs on October 13, 2017 by personal service. (Klein Decl. ¶4, Exh.B.) Neman also served form interrogatories, set one on Plaintiffs on the same date by personal service. (Klein Decl. ¶4, Exh.B.) The responses were due by December 13, 2017 pursuant to a written agreement. (CCP §2030.260(a).) As of April 5, 2018 Plaintiffs have failed to provide any responses to the interrogatories.

The motions to compel responses to form interrogatories and special interrogatories are GRANTED. Plaintiffs to provide responses without objections within 15 days of receiving notice of this ruling.

Requests for Admission

If a party fails to provide a timely response to a request for admission, the party waives any objection to the requests. (CCP § 2033.280(a).) Moreover, “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction….” (CCP § 2033.280(b).) Generally, the Court must grant such a request “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (CCP § 2033.280(c).)

As set forth in the motion, Neman served requests for admissions, set one on Plaintiffs on October 13, 2017 by personal service. (Klein Decl. ¶4, Exh.B.) The responses were due by December 13, 2017 pursuant to written agreement. (CCP §2030.260(a); Klein Decl ¶5.)) Defendants contend as of April 5, 2018, Plaintiffs have failed to provide any responses to the requests for admissions. Plaintiff’s counsel contends in opposition that Plaintiffs were asked by email to reply to the discovery, and most indicated they were not acquainted with Simon Neman and those Plaintiffs will be dismissing Simon Neman from the action. Plaintiffs do not make a showing that they have served responses that are in substantial compliance with Section 2033.220.

As such, these RFAs are deemed admitted against these Plaintiffs.

Sanctions

Neman seeks monetary sanctions against Plaintiffs and Plaintiffs’ counsel of record for the motion to compel RFAs, RFPs, and FIs in the amounts of $1,980, $1,820 and $1,820 respectively ($320/hour plus costs) for a total of $5,620. The motions are largely duplicative of each other and of the motions brought by other Defendants represented by the same counsel. The request for sanctions is GRANTED in the reduced total amount of $2,240.00. Plaintiffs and their counsel of record, Law Firm of Harold Greenberg, to pay total monetary sanctions, jointly and severally, to Neman’s counsel of record, Fisher & Wolfe LLP, within 30 days of receiving notice of this ruling.

Laura Shapiro,

Plaintiff,

v.

Morad Ben Neman, et al.,

Defendants.

Case No.: BC653531

Hearing Date: June 15, 2018

[TENTATIVE] order RE:

Demurrer to SECOND amended complaint

BACKGROUND

This action is brought by seventy-five individual Plaintiffs against eighteen Defendants related to a property located on East Pico Boulevard in Los Angeles. Plaintiffs allege claims arising out of the warranty of habitability, negligence, and various statutory violations.

DISCUSSION

A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff’s ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.) The court must treat as true all of the complaint’s material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732–33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.) Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal. App. 4th 612, 616.)

Defendants Morad Ben Neman, Sky High Investments Company, LLC, Simon Neman, and MBN Real Estate Investments, LLC (collectively, “Defendants”) demurrer to the second amended complaint (“SAC”). Defendant Neman Real Estate Investments, LLC has filed a notice of joinder in this demurrer. Defendants contend that the SAC is not the same as the proposed SAC submitted to the Court on March 2, 2018 and therefore is a violation of the March 16, 2018 order. However, Defendants do not cite to any binding authority for this misrepresentation by Plaintiff’s counsel to sustain a demurrer. Defendants contend that the SAC is uncertain as to Simon Neman, and MBN Real Estate Investments, LLC because there are no allegations that show how, why, or in what manner these Defendants are being charged. Defendants also contend that the complaint is uncertain because it employs “by example” allegations relating to specific Plaintiffs, making it impossible to determine which Plaintiff is suing for what. For instance, Plaintiffs alleged “Defendants other acts of harassment and intimidation include but are not limited to: Failing to fix the locks of the front doors to the Building causing interference with Plaintiffs’ mail, despite being on notice; Defendants failed to maintain the premises and common areas, such as: non-working elevators in a four-story building with no air conditioners – in the middle of summer; Defendants cause some of the Plaintiffs’ vehicle(s) to be vandalized and/or towed by denying parking access as retaliation – since those Plaintiffs were invoking their statutory rights.” (SAC ¶163.) Defendants also demurrer to Plaintiffs’ warranty of habitability claims on the grounds that the warranty of habitability does not apply to commercial leases, and that the remaining causes of action fail to plead sufficient facts to state a cause of action. Defendants demurred to the original complaint and the FAC on these same grounds. Plaintiffs failed to correct these defects with the SAC, despite the attachment of a chart showing which Plaintiffs have sued under what causes of action since there are not corresponding allegations in the Complaint. Accordingly, Defendants cannot reasonably respond to the SAC as they cannot reasonably determine what issues must be admitted or denied or what claims are directed against them. Accordingly, the Defendants’ demurrer to the first, second, sixth, ninth, tenth, thirteenth, fourteenth, fifteenth, sixteenth, eighteenth, twenty-first and twenty-seventh causes of action is SUSTAINED WITH LEAVE TO AMEND.

Defendant Neman Real Estate Investments, LLC (“NRE”) demurs to the second amended complaint (“SAC”) on the same grounds as the above Defendants, and on the basis that the unlawful detainer allegations cannot for the basis of a lawsuit separate from the unlawful detainer action. (Civ. Code §47.) The other Defendants join in the demurrer. Further, NRE alleges that collateral estoppel precludes relitigation of the issues argued and decided in prior proceedings such that Plaintiff’s forcible detainer, retaliatory eviction and abuse of process causes of action must fail. However, Defendants failed to request judicial notice of any unlawful detainer proceeds to provide a basis for sustaining the demurrer on these grounds. However, these causes of action are similarly uncertain as the others. For instance, in the eleventh cause of action Plaintiff alleges, “Defendants retaliated against Plaintiff for complaining to Defendants and government agencies. Defendants instituted an unlawful Detainer action against Plaintiff upon being notified Plaintiff contacted the Los Angeles Housing and Community Investment Department to inquire and submit a Complaint concerning the Property.” (SAC¶208.) However, Defendants have been sued by over 70 Plaintiffs and these allegations are not sufficient to put Defendants on notice of which Plaintiffs or what unlawful detainer proceedings are at issue. Accordingly, NRE cannot reasonably respond to the SAC as they cannot reasonably determine what issues must be admitted or denied or what claims are directed against him or her. For the foregoing reason, NRE’s demurrer to the fifth, eleventh, twelfth, seventeenth and twenty-four causes of action in the SAC is SUSTAINED WITH LEAVE TO AMEND.

Accordingly, the motions to strike is MOOT.