Judge: Gail Killefer, Case: 21STCV43141, Date: 2025-02-18 Tentative Ruling
Case Number: 21STCV43141 Hearing Date: February 18, 2025 Dept: 37
HEARING DATE: Tuesday, February 18, 2025
CASE NUMBER: 21STCV43141
CASE NAME: Wilshire West Tower, One, LLC, et al. v. ANR Development Company, LLC
MOVING PARTY: Cross-Defendants Rapid Medical
Logistics, LLC and Joseph Yemini
OPPOSING PARTY: Cross-Complainants ANR Development
Company, LLC and Agustin N. Rodriguez
TRIAL DATE: 22 July 2025
PROOF OF SERVICE: OK
PROCEEDING: Motion for Summary
Judgment
OPPOSITION: 17 January 2025
REPLY: 31
January 2025
TENTATIVE: Cross-Defendant Yemini’s motion for summary
judgment is granted. Cross-Defendant Rapid Medical’s motion for summary
judgment is denied.
Background
On November 22, 2021, Wilshire West Tower One, LLC; Wilshire West
Tower Two, LLC; Wilshire West Tower Three, LLC; and Wilshire West Tower Four,
LLC (collectively “Plaintiffs”) filed a claim for breach of written lease
against ANR Development Company, LLC (“Defendant” or “ANR”); and Does 1 to 100.
On May 11, 2023, Plaintiffs and Defendant ANR entered a stipulated
judgment wherein Plaintiffs obtained judgment against Defendant ANR.
On May 12, 2022, Defendant ANR filed a Cross-Complaint against
Rapid Logistics Couriers LLC (“Rapid Logistics”); Joseph Yemini (“Yemini”)
(collectively “Cross-Defendants”) and Does 1 to 10.
On February 15, 2023, Defendant/Cross-Complainant ANR filed the
operative First Amended Cross-Complaint (“FACC”) adding Rapid Medical Logistics, LP (“Rapid Medical”) as
Cross-Defendant. The FACC alleges four causes:
1)
Breach of Written Sublease
against Rapid Logistics;
2)
Conversion against Rapid
Logistics and Yemini;
3)
Trespass against Rapid
Medical; and
4)
Breach of Written Sublease
against Rapid Logistics.
On January 10, 2024, Cross-Complainant ANR and Cross-Defendant
Rapid Logistics entered a stipulated judgment wherein ANR obtained a judgment
against Rapid Logistics for Breach of Written Sublease, and the remaining
causes of action against Rapid Logistics were dismissed.
Rapid Medical and Yemini (collectively “Cross-Defendants”) now
move for summary judgment against Cross-Complainants ANR and Agustin Rodriguez
(“Rodriguez”) as to the remaining causes of action alleged against them,
conversion and trespass. Cross-Complainants oppose the Motion. The matter is
now before the court.
Evidentiary Objections
Cross-Defendants’ Evidentiary
Objections to the Declaration of Erin Banks:
Objections Nos. 1 to 7, 11- 13 are overruled.
Objections Nos. 8 to 10 are immaterial,
and the court declines to rule on these objections because they are immaterial to the court’s disposition of this Motion. (CCP, §
437c(q).) All objections not ruled upon are preserved for
appeal. Cross-Defendant stipulated in Cross-Complainant’s
Additional Material Fact No. 41, that the furniture belonged to ANR.
Cross-Defendant’s Evidentiary
Objections to Cross-Complainant’s Exhibit 5: Phone Directory
Objection No. 14 is based on lack of relevance. The court declines to rule on the objection because it is immaterial to
the court’s disposition of this Motion. (CCP, § 437c(q).) All objections
not ruled upon are preserved for appeal.
Cross-Defendants’ Evidentiary
Objections to the Declaration of Kevin Abbot.
Objection No. 15 is overruled.
Cross-Defendant’s Evidentiary
Objections to Cross-Complainant’s Exhibits 7 to 11, and 13
Objections Nos. 16, 17, 18, 19, 21 are based on inadmissibility
due to lack of authentication and are overruled. Kevin Abbot’s declaration asserts
personal knowledge of the exhibits and any issue with authentication can explored
at trial. (See Aaron & Andrew, Inc. v. Sears Holdings Management Corp. (C.D.
Cal., Mar. 26, 2018, No. CV 14-1196 SS) 2018 WL 1942373, at *6 [“Accordingly,
the Court will assume, without deciding, that the documents pulled from AMIN's
website are admissible for consideration on summary judgment.”].)
Objection No. 20 is sustained as the letter is
hearsay.
Request for Judicial Notice
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).) “Taking
judicial notice of a document is not the same as accepting the truth of its
contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)
Cross-Defendants request judicial
notice of the following:
Exhibit B: A true and correct copy of the
parties’ Stipulation for Judgment against Rapid Logistics Couriers LLC and in
favor of ANR Development Company, LLC, entered by this Court on January 10,
2024.
Exhibit C: A true and correct copy of
Cross-Complainants’ Reply Brief in Support of Cross-Complainants’ Motion to Add
Rapid Mgmt Svcs, Inc. as Judgment Debtor, dated March 29, 2024.
Cross-Complainant’s request
judicial notice of the following:
Exhibit 13: A certified copy of a Status
Certificate for Rapid Logistics Couriers LLC from the Delaware Secretary of
State.
The court grants Cross-Defendants’
and Cross-Complainants’ Requests for Judicial Notice.
I. Legal Standard
The purpose of a motion for summary judgment or summary
adjudication “is to provide 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. Atl. Richfield Co.
(2001) 25 Cal. 4th 826, 843 (Aguilar).) “Code of Civil Procedure section
437c, subdivision (c), requires the trial judge to grant summary judgment 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.) Summary adjudication may be granted as to one
or more causes of action within an action, or one or more claims for damages.
(CCP § 437c(f).)¿¿¿¿¿¿
A plaintiff moving for summary adjudication bears the
burden of showing there is no defense to a cause of action. (CCP § 437c(a).)
The burden can be met if the plaintiff “has proved each element of the cause of
action entitling the party to judgment on that cause of action.” (CCP, § 437c,
(p)(1); see also Aguilar, supra, 25 Cal.4th at p. 853.) If the
plaintiff meets this burden, it is up to the defendant “to show that a triable
issue of one or more material facts exists as to that cause of action or a
defense thereto.” (CCP., § 437c(p)(1); see also S.B.C.C., Inc. v. St. Paul
Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388.)
Defeating summary judgment requires only a single disputed
material fact. (See CCP § 437c(c) [a motion for summary judgment “shall be
granted if all the papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law”] [italics added].) Thus, any disputed material fact means the
court must deny the motion – the court has no discretion to grant summary
judgment. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8; Saldana
v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1512.)
II. Discussion
A. Procedural Clarifications
Cross-Defendants Rapid Medical and Yemini bring this motion
for summary judgment against Cross-Complainants ANR and Agustin Rodriguez
(“Rodriguez”). Cross-Complainants assert Rodriguez is not a party to either the
conversion or trespass claim as he did not bring the trespass or conversion
claim at issue and ANR is the sole owner of the Furniture and the sole entity
damaged. (Opposition, at p. 6:2-9.) Cross-Defendants do not challenge
Cross-Complainants’ representation as to Rodriguez, therefore the court agrees
that Rodriguez is not a proper party to this Motion.
Second, Cross-Defendants move for summary judgment, without
requesting summary adjudication in the alternative. Summary judgment must
dispose of the entire complaint. (CCP, § 437c(c); see also Twain Harte
Associates, Ltd. v. County of Tuolumne (1990) 217 Cal.App.3d 71,
80.)¿ Ordinarily, this would require the court to deny the entire motion
even if the court found judgment in favor of Cross-Defendants as to one cause
of action. However, as the conversion claim is only alleged against Yemini and
the trespass claim is only alleged against Rapid Medical, the court treats
Cross-Defendants’ request for summary judgment as two separate motions each
challenging a separate cause of action by a separate Cross-Defendant. The court
proceeds on the merits.
B. Factual Summary
This action arises from a sublease agreement between
Cross-Complainant ANR Development Company LLC (“ANR”) and an entity called
Rapid Logistics Couriers LLC (“Rapid Logistics”). Cross-Defendant Joseph Yemini
(“Yemini”) agreed to act as guarantor for the sublease. Yemini entered into a
Settlement Agreement and General Release with ANR and Cross-Complainant Agustin
Rodriguez (“Rodriguez”) on or about June 14, 2022. (Yemini Decl., ¶ 10, Ex. A.)
The General Release states in relevant part:
3. GENERAL
RELEASE. ANR and Rodriguez, on behalf of themselves, their respective heirs, successors,
relatives, assigns, principals, and shareholders and each of them, hereby
release and forever discharge Yemini and each of his predecessors,
successors-in-interest, partners, affiliates, assigns, trustees, beneficiaries,
estates, agents, servants, employees, representatives, attorneys, and all other
persons, firms, or corporations with whom any of the aforementioned have been,
are now, or may hereafter be affiliated, and each of them (the “Releasees”)
from all claims, suits, actions, charges, demands, damages, costs and
attorney's fees, past, present and future, known or unknown, both legal and
equitable in any manner arising out of or relating to the Premises, the Action,
any transaction between the Parties and the above recitals, including but not
limited to, claims for breach of contract, attorney fees, costs, as well as any
and all claims arising under any common law, state law, or federal law.
4. RELEASE
OF UNKNOWN CLAIMS. It is the intention of the Parties hereto in executing
this Agreement that this instrument is a general release which shall be
effective as a bar to each and every action, claim, demand, or cause of action
released hereby. ANR and Rodriguez recognize they may discover, incur or suffer
loss, damage or injuries that are in any way related to the subject matter of
this Agreement, the nature or magnitude of which are unknown or unanticipated
at the time of execution of this Agreement, which could be the basis of some
action, claim, demand or cause of action. It is the intention of the Parties in
executing this Agreement that it will deprive ANR and Rodriguez of each such
action, claim, demand or cause of action and prevent them from asserting it
against any other party hereto and/or any other person or entity. ANR and
Rodriguez hereby acknowledge familiarity with the provisions of Section 1542 of
the California Civil Code, which provides as follows:
A general release does not extend to
claims that the creditor or releasing party does not know or suspect to exist
in his or her favor at the time of executing the release and that, if known by
him or her, would have materially affected his or her settlement with the
debtor or released party.
ANR and Rodriguez hereby knowingly, voluntarily and expressly
waive any rights or benefits conferred by the provisions of California Civil
Code Section 1542, or any other law of the same or similar effect which the
State of California may hereafter enact, or the law of any other state or
jurisdiction with the same or similar effect.
(Yemini Decl., ¶ 10, Ex. A, ¶¶ 3-4.)
The Parties agree that if the conversion and trespass claims
arose prior to the signing of the General Release on June 24, 2022, Cross-Complainant
ANR’s conversion and trespass claims are barred. Cross-Defendants Rapid Medical
and Yemini assert that any future tort claims were also barred by the General Release,
and they are entitled to summary judgment as a matter of law. Alternatively,
Cross-Defendants assert that ANR cannot establish the essential elements of conversion
as alleged against Yemini and Trespass against Rapid Medical.
C. General Release Cannot Release Claims
for Future Intentional Torts
In City of Santa Barbara v.
Superior Court (2007) 41 Cal.4th 747, the California Supreme Court
explained that it would be a violation of public policy for an agreement to
release liability for future torts amounting to more than ordinary negligence. Civ.
Code § 1668 states “All contracts which have for their object, directly or
indirectly, to exempt any one from responsibility for his own fraud, or willful
injury to the person or property of another, or violation of law, whether
willful or negligent, are against the policy of the law.”
The California Supreme Court
defined “ordinary negligence” as “an unintentional tort.” (City of Santa
Barbara, supra, 41 Cal.4th at p. 753.) Consequently, the General
Release can only bar future claims for unintentional torts, but not intentional
torts like Conversion and Trespass. “Thus, a necessary element of the tort is an intent to exercise
ownership over property which belongs to another. For this reason, conversion
is considered an intentional tort.” (Collin v. American Empire
Insurance Company (1994) 21 Cal.App.4th 787, 812 [bold added].) “‘The essence of the cause of action for
trespass is an ‘unauthorized entry’ onto the land of another. Such invasions
are characterized as intentional torts, regardless of the actor's
motivation.’” (Spinks v. Equity Residential Briarwood Apartments (2009)
171 Cal.App.4th 1004, 1042 [bold added] citing Civic Western Corp. v. Zila
Industries, Inc. (1977) 66 Cal.App.3d 1, 16.)
The court concludes it would be a
violation of Civ. Code § 1668 for the General Release to bar future unknown claims
for intentional torts.
D. 2nd Cause of Action – Conversion as
Alleged against Yemini
The FACC alleges that ANR is the
sole owner of the Furniture and did not consent to Cross-Defendants taking the Furniture
after the Sublease expired on November 30, 2022. (FACC ¶¶ 29, 30, 34.)
Cross-Defendant Yemini asserts ANR
served deficient discovery responses when asked to provide facts to show that
Yemini “wrongfully exerted control over the Furniture.” (“Undisputed Material
Fact (“UMF”) No. 32.) ANR responded by asserting: “Nevertheless Rapid Logistics
and Defendant Yemini took the furniture after vacating the subject property.
Discovery and investigation are ongoing.” (UMF No. 33.) Cross-Defendant Yemini
submitted a declaration that that he did not take any furniture from the Property
and asserts that ANR has not provided any evidence of conversion. (Yemini
Decl., ¶ 12.) The court finds that by pointing to Cross-Complainant’s deficient
discovery responses, Yemini has met his initial burden of showing there are no
triable issues of material fact. The burden shifts to Cross-Complainant ADR to
show there are triable issues of material fact precluding summary judgment.
i. Cross-Defendant’s
Evidence of Conversion
Cross-Defendant ANR presents the declaration of its office
manager, Erin Banks, who asserts that when ANR subleased the Property to Rapid Logistics
on February 18, 2019, the Furniture remained at the Property. (Banks, Decl., ¶ 6,
Ex. 3) Banks asserts they visited the Property before and after it was vacated
on November 30, 2022, and that the Furniture was there in November 2022 prior
to the Lease ending. (Id. ¶ 10.) “When I went to the Property
immediately after the Property was vacated, all of the Furniture was gone.” (Ibid.)
ANR also points to Rapid Medical’s discovery responses wherein it states that
the “furniture is in the possession of Rapid Logistics Couriers LLC.” (Abbot
Decl., ¶ 8, Ex. 12.) ANR further provides evidence that Rapid Logistics ceased
to be in good standing with the Delaware Secretary of State effective June 1,
2023. (Id., Ex. 13.) ANR also provides evidence that Yemini signed the
sublease as Rapid Logistics’ general manager. (Banks Decl., ¶ 6, Ex. 3 at p.
AOE 043.) Yemini also “executed a Guaranty of Sublease as part of the sublease
and thereby guaranteed the monetary obligations of Rapid Logistics.” (Id.,
Ex. 4.)
ANR fails to show that Yemini can be held liable for
conversion. ANR asserts that Yemini is the principal of Rapid Logistics.
(Opposition, at p. 2:17-18.) “First, a principal who personally engages in no
misconduct may be vicariously liable for the tortious act committed by an agent
within the course and scope of the agency.” (Peredia v. HR Mobile Services,
Inc. (2018) 25 Cal.App.5th 680, 691.) Yemini as the principal of Rapid
Logistics cannot be held vicariously liable for torts committed by his agent,
Rapid Logistics, due to the Stipulated Judgment entered on January 10, 2024.
Judgment was entered in favor of ANR and against Rapid Logistics as to the
claim for breach of written sublease, and the remaining causes of action
against Rapid Logistics, including the claim of conversion, were dismissed. (1/10/2014
Stipulated Judgment.)
The dismissal of the conversion claim precludes the court
from finding that Rapid Logistics is liable for conversion. Moreover, ANR’s
evidence that Yemini signed the Lease and executed a Guaranty are insufficient
to show that Yemini is the principal of Rapid Logistics, rather than just its
agent. Similarly, ANR fails to show that Yemini personally engaged in the
conversion of the Furniture.
ANR fails to meet its burden of presenting evidence to raise
a triable issue of fact as to Yemini’s liability for conversion. Therefore,
summary judgment is granted as the second cause of action.
E. 3rd Cause of Action – Trespass as
Alleged against Rapid Medical
The FACC alleges that despite ANR
subleasing the Property located at 6420 Wilshire Boulevard, Suite 1900, Los
Angeles, California 9004, to Rapid Logistics only, it allowed Rapid Medical to
intentionally enter the Property and begin occupying and operating a business
from the Property. (FACC, ¶¶ 10, 37.) “ANR did not give permission for the
entry or continued occupancy by Rapid Medical and “Rapid Medical’s trespass was
a substantial factor in causing ANR’s harm.” (Id., ¶¶ 39, 40.)
Cross-Defendant Rapid Medical
asserts that ANR submitted deficient discovery responses wherein the only fact
it had to support its trespass claim was that “Rapid Medical’s website listed
the Property as its address. Additionally, a phone directory found at the
Property included several people who apparently work for Rapid Medical.
Discovery and investigation are ongoing.” (UMF No. 26; Kaufman Decl., Ex. D, p.
7.) ANR responded similarly when asked to “State ALL facts in support of YOUR
allegation in paragraph 40 of the CROSS-COMPLAINT that ‘Rapid Medical’s
trespass was a substantial factor in causing ANR’s harm.” (UMF No. 27.) ANR
does not dispute the fact that it never supplemented its responses. (UMF No.
29.)
Cross-Defendant Rapid Medical also
argues that when it asked ANR to “State ALL dates of alleged entry by Rapid
Medical onto the Property”, ANR responded: “Responding Party does not know when
Rapid Medical first occupied or entered the Property, but the last date of
occupancy appears to be November 30, 2022. Discovery and investigation are
ongoing.” (UMF Nos. 31, 32.) Defendant Yemini also submitted a declaration asserting
that Rapid Medical never had any employees. (Yemini Decl., ¶ 13.) The court
finds that by pointing to Cross-Complainant’s deficient discovery responses,
Rapid Medical has met its initial burden of showing there are no triable issues
of material fact. The burden shifts to Cross-Complainant ADR to show there are
triable issues of material fact precluding summary judgment.
i. Cross-Defendants
Evidence of Trespass
Cross-Defendant ANR asserts that
when Banks visited the vacated Property on November 30, 2022, she saw a phone
directory purporting to have the contact information of a Rapid Medical employee.
(Banks Decl., ¶ 11, Ex. 5.) “I saw a phone directory affixed to a dry erase
board outside of what was Joseph Yemini's office.” (Banks Decl., ¶ 11.) “This
directory includes a person named “Saul Corte” with an email address of
saul.corte@gorapidmedical.com. Gorapidmedical.com is the website for Rapid
Medical Logistics.” (Ibid., Ex. 5.) “Saul Corte” phone number on the
directory is listed as 818-617-9719, which Bank’s asserts is an area code in
Los Angeles, CA.
ANR presents evidence that https://www.gorapidmedical.com is the
home page of Rapid Medical. (Abbot Decl., ¶ 4, Ex. 8.) ANR also presents
evidence that Rapid Medical’s primary address is “6420 Wilshire Boulevard,
Suite 1900, Los Angeles, CA 90048”, which is the address of the Property. (Id.
¶ 5, Ex. 9; FACC, ¶ 10.) Lastly, ANR presents evidence that “Rapid Medical” has
a career page website, https://www.gorapidmedical.com/careers,
inviting visitors to apply for positions. (Abbot Decl., ¶ 4, Ex. 10.)
Cross-Defendant Rapid Medical’s
evidence is sufficient to raise triable issues of fact as to UMF Nos. 37, 38,
and 39 as to whether Rapid Medical “never had” any employees, whether Rapid
Medical never entered or occupied the Property, and whether Rapid Medical “never
received mail or correspondence at the Property.” While Cross-Defendant Rapid
Medical argues ANR’s evidence is insufficient to show entry onto the Property,
they raise triable issues of fact which Rapid Medical deemed material by
designating them as UMF Nos. 37, 38, and 39.
Summary judgment is denied as to
the third cause of action for trespass.
Conclusion
Cross-Defendant Yemini’s motion
for summary judgment is granted. Cross-Defendant Rapid Medical’s motion for
summary judgment is denied.