DeAnda v. City of Los Angeles, Second District Court of Appeal, Div. 1, Case No. B312139, filed April 7, 2023.
Apr 07, 2023
OUTCOME: Reversed in part as to retaliation claim under FEHA..
Plaintiff was a Security Officer for the City of Los Angeles' Department of Water & Power. Appellate Court opinion reversed dismissal following sustaining of demurrer without leave to amend of De And...a's retaliation claim. The 2nd District reversed the trial court dismissal and provided for leave to amend of the retaliation claim, including equitable tolling. The claims for reasonable accommodation for disability and failure to engage in good faith interactive process were dismissed because they could not be based on an employee's superivisor's oversight, at least not without also alleging a claim for harassment.
Appeals
Ukoha v. REGR, 2d District Court of Appeal, Div. 1, Case No. B295158, filed March 1, 2021.
Mar 01, 2021
OUTCOME: The appellate court affirmed the dismissal based on the 3-year service statute.
Trial court granted motion to dismiss individual members of defendant LLC for failure to serve under the mandatory 3 year statute. Despite knowing of the individual defendants' identities and alleging... their roles as Does in the original complaint, they were not served for 6-7 years. Plaintiff argued that the LLC's earlier general appearance in the action sufficed for an appearance by the individual defendants on an alter ego basis. I handled the oral argument
Appeals
Eghtesad v. State Farm Gen. Ins. Co. (2020) 51 Cal.App.5th 406
Jun 29, 2020
OUTCOME: The appellate court reversed the trial court dismissal and directed the trial court to give my client a chance to amend his complaint against the insurance for breach of contract, fraud, and bad faith.
My client at the time was unrepresented and filed a complaint against his insurer for breach of contract, fraud, and bad faith for declining coverage for repairs to his building caused by his tenant, w...ho was the other insured on the property. The insurance company filed a motion to dismiss the complaint and before my client could obtain counsel, let alone file an opposition, he was in a bad car accident, which he let the trial court know about. The trial court gave a short continuance but not a 2d one when his doctor said he'd be off his feet for 3 mos and granted the insurance company's motion without giving my client an opportunity to amend.
My argument is that California law allows for someone in that position to raise the argument on appeal why their complaint can be amended, if if they did not do so at the trial court level, and that arguments could be raised based on statements in the appellate briefs, and that since this was the original complaint, leave to amend should have been granted so long as the complaint did not reveal on its face that it was incapable of amendment.
Appeals
Lay v. Shemirani, First District Court of Appeal, Div. 2, Case No. A156961, filed April 29, 2020
Apr 29, 2020
OUTCOME: Affirmed on appeal. Trial Court properly set side the $285,000 default judgment based on extrinsic fraud or mistake.
My client was a project manager for a contractor who was hired to remodel a house. According to the plaintiff the contractor's work was unsatisfactory and the plaintiff hired someone else to finish th...e job.
The plaintiff then sued the general contractor and my client for fraud, breach of contract, and performing contracting work without a license.
By the time my client learned of the suit the time had passed to file an answer. My client attended a case management conference in pro per but was not told to get an attorney. He attended another case management conference and talked with opposing counsel's office, including at a 90 minute meeting laying out his documents under the understanding that he would be let out of the suit if he did so. Instead, plaintiff's counsel had entered served him with a $275,000 default judgment.
At that point my client obtained counsel, who was supposed to move to set aside the default but did not. Another attorney stepped in and moved to set aside the default on a variety of grounds, including extrinsic fraud and mistake. The trial court granted the motion to set aside. Plaintiff moved for reconsideration but that motion was denied.
The appellate court held that the default judgment was properly set aside based on extrinsic fraud or mistake grounds.
Appeals
Tahoe Wellness Center, Inc., et al. v. City of South Lake Tahoe, CA, et al., 3rd District Court of Appeal Case No. C087895
Jul 31, 2019
OUTCOME: Obtained a stay of enforcement in Nov. 2018, pending outcome of appeal based on argument that City denied renewal in violation of dispensary's vested rights, settled on appeal in July 2019.
Medical cannabis dispensary had obtained permit from City to operate medical cannabis dispensary and spent considerable sums of money in reliance on permit in improving the premises. Dispensary approa...ched City months before permit expired seeking renewal. City said they were not ready yet for renewal and parties agreed to wait several more months for renewal. In the meantime, owner of dispensary had an option to purchase land on which dispensary was located, but property owner balked at allowing dispensary owner to exercise option. City found out about dispute and landowner refused to sign consent for renewal of permit, a City requirement. City would not accept a copy of the existing 5 year lease as evidence of landlord consent, said it had to be on City form, City said dispensary was too late in submitting permit renewal application and did not use correct consent form and denied renewal of operating permit, which threatened closure of dispensary.
In the meantime the dispensary owner and property owner settled their dispute and the dispensary owner purchased the dispensary property.
Dispensary and its owner sued the City for administrative mandamus, arguing that they had a vested right to operate and could not be shut down absent any public nuisances. There were none. Trial court ruled against dispensary, which appealed.
I became involved on appeal and obtained a stay of proceedings pending the appeal, which allowed the dispensary to remain in business. The case then settled before briefing was due, allowing the dispensary to continue to operate, not only as a medical dispensary, but also as an adult recreational use dispensary for the next three years while the dispensary builds up to comply with recreational use regulations.
Appeals
RWW Properties, LLC v. Superior Court , First District Court of Appeal, Div. 5, Case No. A150816
May 26, 2017
OUTCOME: Alternative writ issued by the First District.
Alternative writ issued by the First District, directing the Superior Court to vacate its order denying attorney fees to RWW Properties and to enter a new order calendaring a hearing on the merits of m...y client’s motion for attorney fees. The trial court had based its prior order on the wrong accrual date for filing the fees motion. My writ petition on RWW’s behalf pointed out that when a party such as Zavieh, whose lis pendens is expunged after losing at trial, appeals the adverse judgment and also files a writ petition contesting expungement of lis pendens after judgment, the accrual date for filing a motion for attorney fees under CCP § 405.38 is after issuance of remittitur following the ruling on appeal, which occurred after the First District ruled against Zavieh on the writ petition. The Trial Court then complied with the alternative writ and held a hearing on the merits of my client’s fees motion. The Trial Court subsequently granted my fee motion and awarded my client $80,000. We settled a few days later for $75,000.
Appeals
Suriya Systems, Inc., et al. v. Quadrant 4 System Corp., et al., Sixth District Court of Appeal, Case No. H042023
Feb 24, 2017
OUTCOME: Affirmed on appeal, unpublished decision.
Obtained affirmance of trial court dismissal and subsequent motion for reconsideration of Appellants’ contract claims based on the forum selection clause in the parties’ contracts. The forum selection ...clause provided for litigation of the parties’ claim in New Jersey. Suriya’s, et al’s petitions for rehearing, publication, and review by the California Supreme Court were subsequently denied.
Appeals
Zavieh v. RWW Properties, LLC, First District Court of Appeal, Div. 5, Case No. A145977
Aug 03, 2016
OUTCOME: Affirmed on appeal, unpublished decision.
Obtained affirmance of judgment in court trial that purchaser of Plaintiff's property at a trustee's sale was a bona fide purchaser for value without notice. The limited record that Appellant designate...d for appeal did not rule out the possibility that appellant had the opportunity to litigate her claims against my client, the purchaser of the property, and therefore did not rebut the presumption in favor of affirmance of judgments on appeal in the absence of a showing of harmful error on the record.
Appeals
Zavieh v. Superior Court of Alameda County, 1st District Court of Appeal, Div. 5, Case No. A146809
Mar 15, 2016
OUTCOME: Summary denial of Zavieh's Petition for Writ of Mandamus, Prohibition, or other extraordinary relief
Obtained denial after filing court-requested opposition to the Petition and Petitioner's Emergency Papers regarding the trial court's order expunging Petitioner's lis pendens recorded against property ...that Real Party in Interest RWW previously purchased at a trustee's sale. At Court's request analyzed proper standard of review for appellate court to use when trial has resulted in judgment against petitioner on real estate issues at stake in lis pendens proceedings and pointed out inadequate record provided in writ proceedings. In order denying Writ Petition, First District held both that Petitioner had failed to provide an adequate record for the Petition and that Petitioner had failed to meet her burden under the applicable standard of review. The First District also denied Petitioner's Emergency Petition.
Appeals
Halliday McCann v. JP Morgan Chase, et al., First District Court of Appeal, Div. 2, Case No. A138257
Aug 17, 2015
OUTCOME: Settled before oral argument.
Represented Appellant in action against successor in interest to lender on refinance of mortgage following lender's solicitations and representations. When refinanced loan's interest rates reset, appel...lant further informed by Respondent successor that further refinance was unavailable but loan modification was available, and that it was a good thing that Chase was not participating in government program, so that there was no loan amount limit in in place. Four loan modification applications later, Chase denied Appellant's loan modification on the grounds that the federal program ceiling limited how much they could offer. Meanwhile Chase had proceeded with foreclosure on Appellant's home.
Appellant filed suit and obtained a temporary restraining order against further foreclosure activity. When Chase proceeded with sale after being served with TRO, Appellant moved for contempt, Chase's counsel stipulated to no further foreclosure activity pending the litigation. The trial court sustained Chase's demurrer without leave to amend, first as to Appellant's claims for negligence and fraud arising out of the loan modification process, then sustained Chase's demurrer without leave to amend as to Appellant's claims for Chase's violations of California's Rosenthal Fair Debt Collection Practices Act (Civil Code secs 1788 et seq.). Shortly after Appellant's case was dismissed, the First District, Div. 2 published a decision, Jolley v. Chase Home Finance, LLC, (2013) 213 Cal.App.4th 872, which allowed claims for negligent representation, negligence, and promissory estoppel in connection with a loan modification involving a construction loan, but which relied on authorities involving homeowners, not builders.
After briefing, notifying the appellate court of subsequent authority supporting Appellant's case, and instructions from the First District informing counsel that at oral argument they wanted to discuss Jolley and the later cited authority, settlement discussions ensued and concluded a few days before oral argument. Terms of the settlement are confidential.
