Judge: Frank M. Tavelman, Case: 22BBCV00248, Date: 2023-08-04 Tentative Ruling
SUBMITTING ON THE TENTATIVE
Generally, the Court will post tentative rulings prior to a hearing; however, the Court does not always do so. If the parties wish to avoid a court appearance and submit on the tentative ruling, then all counsel must confer and agree to do so. Each counsel must then contact the Court and advise they have spoken to opposing counsel and will submit on the tentative. All counsel seeking to submit on a tentative must call Dept A no later than 8:45 a.m. on the hearing day or in lieu may indicate the party is submitting during calendar check-in. Notice of the ruling must be served as indicated in the tentative. If any party declines to submit on the tentative ruling, then all parties should appear at the hearing in person or remotely.
Case Number: 22BBCV00248 Hearing Date: August 4, 2023 Dept: A
LOS
ANGELES SUPERIOR COURT
NORTH
CENTRAL DISTRICT - BURBANK
DEPARTMENT
A
TENTATIVE
RULING
AUGUST 4,
2023
MOTION FOR
SUMMARY ADJUDICATION
Los Angeles Superior Court
Case # 22BBCV00248
|
MP: |
Daniel Boudaie, DMD, Inc. (Plaintiff) |
|
RP: |
None |
ALLEGATIONS:
On April
15, 2022, Daniel Boudaie, DMD, Inc. (“Plaintiff”)
brought this action against Lacey Graham Howell (“Defendant”). Plaintiff
alleges Defendant embezzled substantial amounts of client money while serving
as office manager for Plaintiff’s dental practice. Plaintiff’s Complaint states
five (5) causes of action for: (1) Fraud, (2) Conversion, (3) Breach of Implied
Covenant of Good Faith and Fair Dealing, (4) Civil Extortion, and (5) Unfair
Competition. Plaintiff now moves for summary adjudication as to the causes of
action for Fraud and Conversion. Plaintiff also requests the Court enter
judgment against Defendant in the amount of $120, 923.68.
HISTORY:
On May
17, 2023, Plaintiff filed its Motion for Summary Adjudication. Defendant has
filed no Opposition and the time to do so expired July 17, 2023. (C.C.P. §
473c(b)(2).)
ANALYSIS:
I.
LEGAL
STANDARD
As to
each claim framed by his complaint, a plaintiff moving for summary adjudication
satisfies his burden by submitting proof showing a prima facie case for each
element of a cause of action. (C.C.P. § 437c(p)(1).) Once a moving plaintiff
has satisfied this burden, a defendant opposing the motion has the responsive
burden of showing that a triable issue of one or more material facts exists as
to that cause of action or a defense thereto. (Id.)
Courts “liberally
construe the evidence in support of the party opposing summary [adjudication]
and resolve doubts concerning the evidence in favor of that party.” (Dore v.
Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) However, 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, then the moving party is entitled to
summary adjudication as a matter of law. (C.C.P. § 437c(c); Adler v. Manor
Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
Where a
motion for summary adjudication of issues is unopposed, the court is entitled
to accept as true facts alleged in a movant’s declaration, provided such facts
are within the witness’s personal knowledge and to which the witness could
competently testify. (Southern Pacific Co. v. Fish (1958) 166 Cal.App.2d
353, 362.) Even where a motion for summary adjudication is unopposed, a moving
party may still not be granted summary adjudication unless his papers clearly
establish that there is no triable issue of fact, and he is entitled to
judgment. (See Harman v. Mono General Hospital (1982) 131 Cal.App.3d
607, 613.)
Without
opposition filed in response to Plaintiff's motion, the Court's determination
that Plaintiff has or has not met his initial moving burden of establishing a
prima facie case for each element of his causes of action will be dispositive. (C.C.P.
§ 437c(c).)
II.
MERITS
Fraud
In support of its motion,
Plaintiff submits several documents establishing each of the above elements. Among
these are the deposition of Defendant, labeled Exhibit Three (3), and
Defendant’s responses to Plaintiff’s Requests for Admissions (“RFA”), labeled
Exhibit Four (4). The Court notes Plaintiff’s RFA were deemed admitted by court
order on December 9, 2022, attached to Plaintiff’s motion as Exhibit 15.
Defendant did not deny
stealing $180,000 from Plaintiff when asked at deposition. (Exh. 3, pgs.
12-13.) Defendant admits he informed clients they could pay him directly for
their dental loans. (Exh 4, RFA No. 2.) Defendant stated that he would then pay
off client dental loans from Plaintiff’s bank account and write off the work
performed. (Exh. 3, pgs. 35-36.) Defendant admits he kept client payments for
his own benefit and never transferred the funds to the lending institutions.
(Exh. 4, RFA No. 5.) Defendant admitted to Burbank Police detectives that he
had stolen sums of $2,500 and $6,000 on different occasions. (Exh 3. pg. 10.) Defendant
admits that he told Dr. Daniel Boudaie (“Boudaie”) that some patients were
entitled to refunds when they were not in order to conceal his embezzlement.
(Exh. 4, RFA No. 4.) Defendant admits that in total he took at least
$120,923.68 from Plaintiff through this scheme. (Exh. 4, RFA No. 9.) Plaintiff
states that it was not aware of Defendant’s activity until December 2021 and
Boudaie never authorized Defendant to accept or keep these payments. (Exh 1,
Boudaie Decl. ¶¶ 5-6.)
Additionally, Defendant purchased
a house in Palmdale after he began working for Plaintiff. (Exh 3, pg. 20.) On
May 31, 2022, the Court granted an order for preliminary injunction that barred
the sale of this home unless Defendant were to set aside $85,506.57 for payment
of Plaintiff’s claims. (Exh. 13.) Despite this order, Defendant sold the home
for $133,318 on June 23, 2022 without setting aside the required funds. (Exh.
3., pgs. 20-22.) Defendant thereafter withdrew approximately $120,000 in cash
from his bank account, which he alleges was used to pay off existing debts.
(Exh 3, pg. 33.) Defendant states all the proceeds from the sale of the home are
gone and he does not know where they went. (Exh. 3, pgs. 43-44.)
The Court finds Plaintiff
has made a sufficient evidentiary showing of Defendant’s fraud. Plaintiff has
shown that Defendant misrepresented to clients that funds given to him would be
used to pay off their loans and misrepresented to Boudaie that the dental work
was never performed. Further, Plaintiff has shown that Defendant intentionally
engaged in this scheme to defraud Plaintiff and his clients. Plaintiff has
sufficiently demonstrated their reasonable reliance on Defendant’s
representations, as he was their office manager and Plaintiff was unaware of
his fraudulent activity. Lastly, Plaintiff has demonstrated damages in the
amount of at least $120, 923.68 by virtue of Defendant’s misrepresentations.
(Exh. 4, RFA No. 9.)
Conversion
“Conversion is the wrongful
exercise of dominion over the property of another. The elements of a conversion
claim are: (1) the plaintiff’s ownership or right to possession of the
property; (2) the defendant’s conversion by a wrongful act or disposition of
property rights; and (3) damages.” (Lee
v. Hanley (2015) 61 Cal.4th 1225, 1240.)
Plaintiff’s claim of Conversion
is based on the same operative facts as its claim for Fraud. The Court finds
Plaintiff’s evidentiary showing is also sufficient to support this claim.
Plaintiff has shown that they were entitled to the funds by virtue of
performing dental work which was supposed to be compensated by various lending
institutions. (Exh 1, Boudaie Decl. ¶ 4; Exh. 4, RFA No. 3; Exh 3, pg. 63.)
Plaintiff has also shown that Defendant kept the funds paid to him by clients
for his personal use and never conveyed them to the lending institutions. (Exh.
4, RFA No. 5.) Lastly, Plaintiff has shown that they have been damaged in the
amount of at least $120, 923.68 by virtue of Defendant’s conversion. (Exh. 4,
RFA No. 9.)
III.
CONCLUSION
The Court
finds Plaintiff has made sufficient evidentiary showings to establish that no
triable issue of fact exists as to the causes of action for Fraud and
Conversion. Defendant has presented no evidence in opposition. Accordingly, the
Court finds Plaintiff has demonstrated no triable issue of fact and is entitled
to judgment on these claims.
Plaintiff’s
motion for summary adjudication of the first cause of action for Fraud and the
second cause of action Conversion is GRANTED. Judgment is entered for Plaintiff
against Defendant for $120,923.68.
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RULING:
In the
event the parties submit on this tentative ruling, or a party requests a signed
order or the court in its discretion elects to sign a formal order, the
following form will be either electronically signed or signed in hard copy and
entered into the court’s records.
ORDER
Daniel Boudaie, DMD,
Inc.’s Motion for Summary Adjudication came on
regularly for hearing on August 4, 2023, with appearances/submissions as noted
in the minute order for said hearing, and the court, being fully advised in the
premises, did then and there rule as follows:
THE MOTION FOR SUMMARY ADJUDICATION OF THE
CAUSES OF ACTION FOR FRAUD AND CONVERSION IS GRANTED.
JUDGMENT IS ENTERED FOR PLAINTIFF DANIEL BOUDAIE, DMD, INC. AGAINST
DEFENDANT LACEY GRAHAM HOWELL FOR $120,923.68.
UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF TO
GIVE NOTICE.
IT IS SO ORDERED.
DATE:
August 4, 2023 _______________________________
F.M.
TAVELMAN, Judge
Superior Court of California
County of
Los Angeles