Case Number: BC536220    Hearing Date: July 08, 2014    Dept: 46

Posted 07-03-2014 at 12:50 p.m.

ase Number: BC536220
FRED SHAHAM ET AL VS CESAR ECHEVERRIA
07/08/2014
FOUR MOTIONS

MOTION I

Cross-Defendants Fred Shaham and Catreen Cohen DDS’s Demurrers are OVERRULED and the Motion to Strike Portions of the Cross-Complaint is DENIED. Cross-Defendants to Answer within 10 days.

1. Breach of Lease (1ST Cause of Action)

“A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff. (Reichert v. General Ins. Co. (1968) 68 C.2d 822, 830).” Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 C.A.3d 1371, 1388.

Complainant has alleged all the necessary elements of a cause of action for breach of contract in paragraphs ¶¶ 10 through27 of the cross complaint. There is no requirement that each purported breach be set forth as a separate cause of action.

2. Damages for Waste (2nd cause of action)

CCP § 732 provides that:

“If a guardian, conservator, tenant for life or years, joint tenant, or tenant in common of real property, commit waste thereon, any person aggrieved by the waste may bring an action against him therefor, in which action there may be judgment for treble damages.”

“‘”[W]aste is conduct (including in this word both acts of commission and of omission) on the part of the person in possession of land which is actionable at the behest of, and for the protection of the reasonable expectations of, another owner of an interest in the same land…. Thus, waste is, functionally, a part of the law which keeps in balance the conflicting desires of persons having interests in the same land.”’ [Citation.]” (Cornelison v. Kornblouth (1975) 15 C.3d 590, 597-598). ‘[W]aste is defined as “an unlawful act or omission of duty on the part of a tenant, resulting in permanent injury to the [property].” [Citations.]’ (Old Republic Ins. Co. v. Superior Court (1998) 66 C.A.4th 128, 149, disapproved on another ground in Vandenberg v. Superior Court (1999) 21 C.4th 815, 838-839). ‘In order to state a cause of action for waste, a plaintiff must plead and prove that the defendant was under a duty to preserve and protect the property involved.’ (Old Republic Ins.Co. v. Superior Court, supra, at p. 149).” Avalon Pacific-Santa Ana, L.P. v. HD Supply Repair & Remodel, LLC (2011) 192 C.A.4th 1183, 1211-1212.

By these standards, the Cross-Complainant has adequately pled this cause of action. Paragraph 17 details the items removed and the value thereof. Paragraph 19 details the failure to maintain portions of the premises in which Cross-Complainant has an ownership interest..

3. Damages for Vandalism and Waste to Real Property, Removal and/or Theft of Alterations, Utility Installations and Fixtures Attached to Real Property (3rd cause of action)

This cause of action is not redundant of the 2nd cause of action (COA) because the 2nd COA is based on contract and is asserted against the “Tenant X-Ds” only, whereas the 3rd COA is asserted against all Cross-Defendants.

4. Motion to Strike

Paragraphs 15 and 16 do not contain surplusage or irrelevant matters, ¶25 can not be disputed by means outside of the four corners of the complaint or via judicially noticeable documents. Cross-complainant has adequately pled entitlement to punitive damages, in ¶38.

MOTION II

Cross-Complainant Cesar Escheverria’s Motion for Order Compelling Supplemental Verified Responses to First Set Requests for Admissions and for monetary sanctions of $1,252.50) is GRANTED in part (i.e., as to Nos. 24 and Request for Authentication “B”) and DENIED in part (i.e., as to Nos. 25 and 26). Shaham’s and Cohen Inc. are ordered to serve a full and complete verified response to the request without objection to Request for Authentication B and RFA 24 within 20 days – Sanctions are denied as the opposition was partially justified.

CCP §2033.290 states, in pertinent part, as follows:

“(a) On receipt of a response to requests for admissions, the party
requesting admissions may move for an order compelling a further
response if that party deems that either or both of the following
apply:
(1) An answer to a particular request is evasive or incomplete.
(2) An objection to a particular request is without merit or too general.
(b) A motion under subdivision (a) shall be accompanied by a meet
and confer declaration under Section 2016.040…
(d) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel
further response, unless it finds that the one subject to the sanction
acted with substantial justification or that other circumstances make
the imposition of the sanction unjust…”

Section §2033.220 states as follows:

“(a) Each answer in a response to requests for admission shall be
as complete and straightforward as the information reasonably
available to the responding party permits.
(b) Each answer shall:
(1) Admit so much of the matter involved in the request as is true,
either as expressed in the request itself or as reasonably and clearly
qualified by the responding party.
(2) Deny so much of the matter involved in the request as is untrue.
(3) Specify so much of the matter involved in the request as to the truth
of which the responding party lacks sufficient information or knowledge.
(c) If a responding party gives lack of information or knowledge as a
reason for a failure to admit all or part of a request for admission, that
party shall state in the answer that a reasonable inquiry concerning the
matter in the particular request has been made, and that the information
known or readily obtainable is insufficient to enable that party to admit
the matter.”

The discovery in dispute states as follows:

“Request for Authentication B:

Admit that the letter dated February 14, 2014, from Scott L. Whitman
and addressed to Richard I. Wideman, a copy of which is attached
hereto marked Exhibit ‘C’ and incorporated herein by this referenced,
is a true and correct copy of a letter received by counsel for PLAINTIFFS
on or about the date of the letter.”

“The Discovery Act…requires the responding party to undertake a ‘good faith’ obligation to investigate sources reasonably available to him or her in formulating answers to RFAs (similar to the duty owed in responding to interrogatories). [CCP § 2033.220(c); see Chodos v. Sup.Ct. (Lowe) (1963) 215 C.A.2d 318, 322].” Weil & Brown, et al., CAL. PRAC.GUIDE: CIV.PRO.BEFORE TRIAL (The Rutter Group 2013) ¶ 8:1342, p. 8G-17. “In answering interrogatories, a party must furnish information available from sources under the party’s control: ‘(A party) cannot plead ignorance to information which can be obtained from sources under his control.’ [Deyo v. Kilbourne [(1978)] 83 CA3d [771,] at 782 (parentheses added); Regency Health Services, Inc. v. Sup.Ct. (Settles) (1998) 64 C.A.4th 1496, 1504 (citing text)]. Id. at ¶ 8:1054, p. 8F-42. “A party must disclose nonprivileged facts known to his or her lawyer, even if the party has no personal knowledge of such facts. [Smith v. Sup.Ct. (Alfred) (1961) 189 C.A.2d 6, 11-12—names of witnesses, existence of photographs, etc.].” Id. at ¶ 8:1055, p. 8F-42 (emphasis theirs).

Shaham’s and Cohen Inc.’s objections to RFA B are therefore without merit based upon the above authority; a substantive response must be provided within 20 days.

“RFA No. 24: Admit that PLAINTIFFS removed Alterations and Utility
Installations as defined in the LEASE from the PROPERTY prior to
surrendering possession of the PROPERTY that, under the LEASE,
belonged to ECHEVERRIA.”

Shaham and Cohen Inc. both responded, “Objection—this is the same as No. 24.” Presumably, they meant to refer to No. 23 (i.e., which asked them to “[a]dmit that PLAINTIFFS removed Alterations and Utility Installations as defined in the LEASE from the PROPERTY prior to surrendering possession of the PROPERTY in violation of the LEASE.” While Nos. 23 and 24 are very similar, they are not, in fact, identical. A substantive response must be provided.

“RFA No. 25: Admit that AKHAVAN elected not to purchase certain
assets of COHEN because AKHAVAN was unable to obtain financing
to proceed with the purchase of COHEN’s dental practice.”

“RFA No. 26: Admit that AKHAVAN elected not to purchase certain
assets of COHEN because of a failure of contingencies set forth in
that Deposit Agreement dated on or about October 18, 2010, and as
amended pursuant to that certain Deposit and Receipt Amendment
dated on or about December 17, 2010, between COHEN and
AKHAVAN.”

Shaham’s and Cohen’s response to both RFAs (i.e., “Objection—not within plaintiff’s current knowledge and cannot admit or deny”) is appropriate.

MOTION III

Cesar Esheverria’s Motion for Order Compelling Fred Shaham and Catreen Cohen DDS, PDC to provide Supplemental, Verified Responses to 1st Set of Form Interrogatories is GRANTED. In part (i.e., as to Form Interrogatory Nos. 9.1, 9.2, 12.2, 12.3, 12.7) and DENIED in part (i.e., as to No. 17.1.) Shaham’s and Cohen Inc. are ordered to serve full and complete verified responses, without objection, to Interrogatories 9.1, 9.2, 12.2, 12.3, 12.7 within 20 days. Request for Sanctions is DENIED.

D/X-Complainant’s motion should be GRANTED in part (i.e., as to Nos. 9.1, 9.2, 12.2, 12.3, 12.7) and DENIED without prejudice in part (i.e., as to No. 17.1). CCP § 2030.300 states, in pertinent part, as follows:

“(a) On receipt of a response to interrogatories, the propounding
party may move for an order compelling a further response if the
propounding party deems that any of the following apply:
(1) An answer to a particular interrogatory is evasive or incomplete…
(2) An objection to an interrogatory is without merit or too general.
(b) A motion under subdivision (a) shall be accompanied by a meet
and confer declaration under Section 2016.040…
(d) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel
a further response to interrogatories, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.”

Since Shaham and Cohen did not provide any response whatsoever to Nos. 9.1 and 9.2; as such, the motion is granted.

As to Nos. 12.2 and 12.3, the CA Supreme Court, in Coito v. Superior Court (2012) 54 C.4th 480, 499-500, 502, stated as follows:

“[W]e reject the dicta in Nacht v. Lewis [Architects, Inc. v.
Superior Court (1996)] 47 C.A.4th [214,] at page 217, that
said ‘recorded statements taken by defendants’ counsel would
be protected by the absolute work product privilege because
they would reveal counsel’s ‘impressions, conclusions, opinions,
or legal research or theories’…. [Citation.]’ Instead, we hold that
a witness statement obtained through an attorney-directed
interview is entitled as a matter of law to at least qualified work
product protection. A party seeking disclosure has the burden
of establishing that denial of disclosure will unfairly prejudice the
party in preparing its claim or defense or will result in an injustice.
(§ 2018.030, subd. (b)). If the party resisting discovery alleges
that a witness statement, or portion thereof, is absolutely
protected because it ‘reflects an attorney’s impressions,
conclusions, opinions, or legal research or theories’ (§ 2018.030,
subd. (a)), that party must make a preliminary or foundational
showing in support of its claim. The trial court should then make
an in camera inspection to determine whether absolute work
product protection applies to some or all of the material…

Because it is not evident that form interrogatory No. 12.3 implicates
the policies underlying the work product privilege in all or even
most cases, we hold that information responsive to form interrogatory
No. 12.3 is not automatically entitled as a matter of law to absolute
or qualified work product privilege. Instead, the interrogatory usually
must be answered. However, an objecting party may be entitled to
protection if it can make a preliminary or foundational showing that
answering the interrogatory would reveal the attorney’s tactics,
impressions, or evaluation of the case, or would result in opposing
counsel taking undue advantage of the attorney’s industry or efforts.
Upon such a showing, the trial court should then determine, by making
an in camera inspection if necessary, whether absolute or qualified
work product protection applies to the material in dispute. Of course,
a trial court may also have to consider non-party witnesses’ privacy
concerns. (See Weil & Brown, Cal. Practice Guide: Civil Procedure
Before Trial (The Rutter Group 2011) ¶¶ 8:298 to 8:299.15, pp. 8C–88
to 8C–89.)…”

Shaham and Cohen, then, absent a preliminary showing made at the time of this hearing that answering the foregoing interrogatories “would reveal the attorney’s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts,” must provide substantive responses to Nos. 12.2 and 12.3.

A further response to No. 12.7 is warranted.

No further response, however, is warranted as to No. 17.1, inasmuch as Cesar Esheverria’s motion reflects CRC Rule 3.1345 non-compliance with respect to this particular discovery request; this provision states, in relevant part, as follows:

“(c) Contents of separate statement
A separate statement is a separate document filed and served with
the discovery motion that provides all the information necessary to
understand each discovery request and all the responses to it that
are at issue. The separate statement must be full and complete so
that no person is required to review any other document in order to
determine the full request and the full response. Material must not
be incorporated into the separate statement by reference. The
separate statement must include–for each discovery request (e.g.,
each interrogatory, request for admission, deposition question, or
inspection demand) to which a further response, answer, or
production is requested–the following:
(1) The text of the request, interrogatory, question, or inspection
demand;
(2) The text of each response, answer, or objection, and any further
responses or answers;
(3) A statement of the factual and legal reasons for compelling
further responses, answers, or production as to each matter in
dispute;
(4) If necessary, the text of all definitions, instructions, and other
matters required to understand each discovery request and the
responses to it;
(5) If the response to a particular discovery request is dependent on
the response given to another discovery request, or if the reasons a
further response to a particular discovery request is deemed
necessary are based on the response to some other discovery request,
the other request and the response to it must be set forth…” (emphasis
added).

Cesar Esheverria’s separate statement, as to No. 17.1, merely states, “See Separate Statement regarding the responses to the Requests for Admission. As to each such RFA, a supplemental response to this Interrogatory is required.” This is insufficient.

Request for sanctions should be declined.

MOTION IV

Cesar Esheverria’s Motion for Order Compelling Production of Documents, Supplemental Verified Response is GRANTED. Request for sanctions is granted in the amount of of $1,385. Fred Shaham and Catreen Cohen DDS.

CCP § 2031.310 states, in pertinent part, as follows:

“(a) On receipt of a response to a demand for inspection, copying,
testing, or sampling, the demanding party may move for an order
compelling further response to the demand if the demanding party
deems that any of the following apply:
(1) A statement of compliance with the demand is incomplete.
(2) A representation of inability to comply is inadequate, incomplete,
or evasive.
(3) An objection in the response is without merit or too general.
(b) A motion under subdivision (a) shall comply with both of the
following:
(1) The motion shall set forth specific facts showing good cause
justifying the discovery sought by the demand.
(2) The motion shall be accompanied by a meet and confer
declaration under Section 2016.040…
(h) …the court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel
further response to a demand, unless it finds that the one subject to
the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.”

Section 2031.210 states, in relevant part, as follows:

“(a) The party to whom a demand for inspection, copying, testing,
or sampling has been directed shall respond separately to each item
or category of item by any of the following:
(1) A statement that the party will comply with the particular demand
for inspection, copying, testing, or sampling by the date set for the
inspection, copying, testing, or sampling pursuant to paragraph (2) of
subdivision (c) of Section 2031.030 and any related activities.
(2) A representation that the party lacks the ability to comply with the
demand for inspection, copying, testing, or sampling of a particular
item or category of item.
(3) An objection to the particular demand for inspection, copying,
testing, or sampling…”

Section 2031.220 states as follows:

“A statement that the party to whom a demand for inspection,
copying, testing, or sampling has been directed will comply with the
particular demand shall state that the production, inspection, copying,
testing, or sampling, and related activity demanded, will be allowed
either in whole or in part, and that all documents or things in the
demanded category that are in the possession, custody, or control of
that party and to which no objection is being made will be included in
the production.”

Section 2031.230 states as follows:

“A representation of inability to comply with the particular demand for
inspection, copying, testing, or sampling shall affirm that a diligent
search and a reasonable inquiry has been made in an effort to comply
with that demand. This statement shall also specify whether the
inability to comply is because the particular item or category has
never existed, has been destroyed, has been lost, misplaced, or
stolen, or has never been, or is no longer, in the possession, custody,
or control of the responding party. The statement shall set forth the
name and address of any natural person or organization known or
believed by that party to have possession, custody, or control of that
item or category of item.”

Shaham’s and Cohen’s responses to Nos. 1-3, 5-7, 9-13, 16, 17, 19, 20 and 22 state, in substance, “[w]ill comply. This does not satisfy CCP § 2031.220. Their responses to Nos. 4, 8, 14, 15, 18 and 23-25 reflect non-compliance with CCP § 2031.230. Their objections to No. 21 are improper. They did not answer No. 26 whatsoever.

Sanctions are warranted since the entire relief requested is appropropriate and no substantial justification has been shown for the discovery responses given. The sanctions re requested to what the court finds to be a reasonable expenditure of time on this motion: $1,385.00 (i.e., 3 hrs. preparing motion and two hours for. attending the hearing at $265/hr) plus the filing fee of $60 filing fee.

Case Number: BC536220
FRED SHAHAM ET AL VS CESAR ECHEVERRIA
07/08/2014
Conference-Case Management

Matter to be set for court trial on 05/27/2015 at 9:30 a.m. and a final status conference on 05/12/2015 at 8:30 a.m.

The parties agree to mediation. The court orders the parties to select a mutually agreeable mediator by 12/19/2014, complete mediation by 3/28/2015 and then return to court for post-mediation conference on 3/31/2015 at 8:30 a.m. in Dept. 46.

The parties are to comply with the CMC order which is issued separately.

This ruling and the CMC order are posted on-line. No appearance is necessary if, after meeting and conferring regarding the tentative ruling, the parties both agree to the dates and times set for trial, the parties waive further notice of this trial, and one party calls the court and informs the court that the parties agree and that both parties waive notice.

IT IS SO ORDERED:

______________________________
Frederick C. Shaller, Judge

CASE MANAGEMENT ORDER
Case Number: BC536220
FRED SHAHAM ET AL VS CESAR ECHEVERRIA

Trial and Final Status Conference

Trial is set for 5/27/2015 at 9:30 a.m. in Department 46.

Final Status Conference is set for 5/12/2015 at 8:30 a.m. in Department 46.

Jury Instructions and Verdict Form

The Court settles jury instruction and the verdict form at the Final Status Conference. A jury panel will not be ordered until the instructions and verdict form are settled.
Counsel and self-represented parties with authority to agree on jury instructions and the verdict form shall meet and confer in person within thirty (30) days of the Final Status Conference regarding jury instructions and a special verdict form with interrogatories. All counsel and self-represented parties shall bring to that meeting their requested jury instructions and special verdict form with interrogatories.
As required by LASC Local Rule 3.25(g)(7), counsel and self-represented parties shall present at the Final Status Conference one joint set of agreed jury instructions, one joint set of disputed jury instructions and one joint agreed special verdict with interrogatories. Jury instructions must be formatted as required by Cal. Rules of Court (CRC) 2.1055.
Any disputed jury instructions that is not a form instruction as approved by BAJI or CACI shall contain a citation to the case in support of the instruction with a page citation to the portion of the case that supports the instruction. If federal or out-of-state citations are included, a copy of the entire case must be lodged with the court in accordance with CRC 3.1113(i).

Motions in Limine

Motions in limine shall be noticed pursuant to CCP §1005(b) to be hear at the Final Status Conference and shall comply with LASC Rules 3.25(g)(2) and 3.57.

Counsel shall seek and obtain from the Court an alternate briefing schedule if it is not possible to notice a motion in limine for the Final Status Conference on 16 days notice, such as motions in limine regarding expert witnesses.

Witness and Exhibit Lists

Witness and exhibits lists shall be filed and served in compliance with LASC Local Rule 3.25(f)(1).

Alternative Dispute Resolution

The parties have agreed to mediate. Counsel shall select the mediator by 12/19/2014. The mediation shall be completed by 03/28/2015. Post-Mediation status conference is set for 03/31/2015 at 8:30 a.m. in Dept. 46.
All parties including persons with authority to settle, and lead trial counsel shall be physically present at the mediation. Insurance claims representatives assigned to the file and located in California shall be physically present. Insurance claims representatives assigned to the file and located outside California shall be available by telephone during the entire mediation.
Counsel participating in any form of alternative dispute resolution shall comply with CRC 3.1380(b). The mediator has no authority to make any exceptions to this order.

Motions

Objections to evidence filed in connection with any motion shall be in the format required by CRC 3.1354(b). Counsel shall lodge a proposed order on objections in the format specified in CRC 3.1354(c). Objections must be filed and proposed orders lodged at the time of the opposition or reply brief or objections will be waived.
All citations to federal or out of state authorities shall be accompanied by lodged out of state authorities in the format specified by CRC 3.1113(i).
No more than one (1) summary judgment/adjudication to be filed per party.

Trial

On the first date of trial, all counsel and self-represented parties will bring to court five sets of three ring binders containing exhibits. Exhibits must be sequentially numbered, starting from the number 1, on the lower right side of each page.
Counsel and self-represented parties are to assign trial exhibit numbers so there are no duplicate exhibit numbers.
Counsel and self-represented parties are ordered to meet and confer so that exhibits not in dispute can be admitted at the beginning of each party’s case.
Counsel and, where applicable, parties and witnesses, shall comply with LASC Local Rules 3.70 – 3.193.
IT IS SO ORDERED:
Dated: _______________________________
FREDERICK C. SHALLER
Judge of the Superior Court