Judge Holly J. Fujie, Case 21STCV42690 2022-11-01 Tentative Ruling

This order concerns: (1) a motion for preliminary injunction (the “PI Motion”) filed by Plaintiff; and (2) a motion to quash deposition subpoena and motion for protective order (the “MTQ”) filed by Plaintiff.

RESPONDING PARTY: Fahiem Gaffoor (“Fahiem”)[1] in his personal capacity and as Successor Trustee of the Gaffoor Family Trust (the “Trust”); Cameron Irons; Max Greenbriar Properties, LLC; Max Le Grande Properties, LLC, (MLGP”); Max; Valley Properties LLC and SVN Vanguard (collectively, “Defendants”)

This action arises out of a dispute over the estate of Mahomed Gaffoor (“Decedent”). On November 19, Plaintiff initiated this action by filing a complaint (the "Complaint”) alleging: (1) wrongful termination; (2) breach of the implied covenant of “good cause”; (3) breach of the implied covenant of good faith and fair dealing; (4) unfair business practices; (5) failure to prevent discrimination, harassment, and retaliation in violation of the Fair Employment and Housing Act (“FEHA”); (6) violation of Labor Code section 6310; (7) retaliation in violation of FEHA; (8) assault; (9) battery; (10) trespass to chattels; (11) harassment; (12) wrongful/unlawful retaliatory eviction; and (13) intentional infliction of emotional distress.

On November 19, 2021, Plaintiff filed the PI Motion. The PI Motion requests that the Court issue an order enjoining Defendants from: (1) “further Harassing, intimidating, stalking, threatening, assaulting, attacking, striking, hitting, abusing, destroying personal property of, or disturb the peace of Plaintiff”; (2) evicting Plaintiff from his occupied premises until this matter is decided on its merits; (3) entering Plaintiff’s premises, including the common area at 421 Mavis Drive in Los Angeles (the “Mavis Property”) without Plaintiff’s written consent; and (4) any further action that interferes with Plaintiff’s rights to quiet enjoyment of the [unspecified] property, including by moving forward with attempts to evict him and dispose of his personal property without consent. When Plaintiff filed the PI Motion, the moving papers did not include citations to evidence or include any exhibits.

On May 13, 2022, Defendants filed their opposition (the “PI Opposition”). The Opposition raises arguments about the sufficiency of the notice (the “Notice”) of Motion and the lack of evidentiary support in the moving papers. Defendants submitted three filings from the probate action pending in the Orange County Superior Court styled as In re the Gaffoor Family Trust dated August 18, 2014, as Amended and Restated, Orange County Super. Ct. Case No. 30-2021-01190223-PR-TR-CJC (the “Probate Action”). (See Correll Decl. ¶¶ 1-4, Exhibits A-C.)^{^[2]}

On May 19, Plaintiff filed a reply (the “Reply”) which consists of Plaintiff’s declaration (Declaration of Agouram Abdelmajid (“Abdelmajid Decl.”) and attached exhibits. On May 26, 2022, the Honorable David Sotelo continued the hearing on the Motion to August 24, 2022.

On August 17, 2022, Defendants filed an objection to the Reply based on evidentiary objections to the evidence stated therein on specific grounds and generally on the grounds that evidence submitted for the first time in the Reply should not be considered.

On August 24, 2022, Judge Sotelo presided over a hearing on: (1) the PI Motion; (2) a demurrer made by the business entity Defendants against the Complaint’s thirteen causes of action on sufficiency, uncertainty, and lack of clarity in pleading as to type of contract at issue; and (3) two motions to strike. On August 24, 2022, following the hearing, Judge Sotelo issued an order ruling on the Demurrer and Motions to Strike.[3] Judge Sotelo continued the hearing on the PI Motion to October 26, 2022.^{^[4]}

On September 13, 2022, Plaintiff filed the currently operative first amended complaint (the “FAC”). The FAC alleges the same causes of action as the original Complaint, but includes more details to differentiate the conduct of the multiple Defendants.

On October 19, 2022, Defendants filed a supplemental opposition (the “Supplemental Opposition” or “Supp. Opp.”) to the Motion in addition to further evidentiary objections to the Reply. On October 25, 2022, Plaintiff filed a supplemental reply (the “Supplemental Reply” or the “Supp. Reply”).

In addition, on May 19, 2022, Fahiem filed an unlawful detainer action against Plaintiff regarding the Mavis Property in LASC Case No. 22STUD02342. On July 11, 2022, MLGP filed an unlawful detainer action against Plaintiff regarding property that Plaintiff uses for storage (the “Le Grande Property”) in LASC Case No. 22STUD03593.[5]

From what the Court can surmise (and appears to be confirmed by the Supplemental Opposition), Judge Sotelo continued the hearing on the PI Motion on August 24, 2022 to allow supplemental briefing in light of the materials filed for the first time in the Reply. Because Defendants have now had the opportunity to respond to the Reply’s evidence, the Court finds it appropriate to consider the Reply and has considered Defendants’ individualized objections to the evidence stated therein. The Court is unable to determine from the record whether Plaintiff was permitted to file the Supplemental Reply. The Court exercises its discretion and has considered the Supplemental Reply.[6]

The Court rules on Defendants’ objections to the Reply as follows: objections numbers 3-6, 9, 14, 15, 18, and 19 are SUSTAINED only as to the exhibits cited. Objections numbers7, 8, 20, 23, 23, 26, and 17 are OVERRULED.

Under California Code of Civil Procedure (“CCP”) section 526, subdivision (a)(3), a preliminary injunction may be granted when it appears, during the litigation, that a party to the action is doing, is threatening, or is about to do some act in violation of the rights of another party to the action concerning the subject of the action and tending to render the judgment ineffectual. (CCP § 526, subd. (a)(3).) A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefore. (CCP § 527, subd. (a).) No preliminary injunction shall be granted without notice to the opposing party. (Id.)

To obtain a preliminary injunction, a plaintiff ordinarily is required to present evidence of irreparable injury or interim harm that it will suffer if an injunction is not issued pending an adjudication of the merits. (White v. Davis (2003) 30 Cal.4th 528, 554.) A trial court must weigh two interrelated factors when deciding whether to grant a plaintiff’s motion for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial; and (2) the relative interim harm to the parties from the issuance or nonissuance of the injunction, that is, the interim harm the plaintiff is likely to sustain if the injunction is denied as compared to the harm the defendant is likely to suffer if the preliminary injunction is issued. (SB Liberty, LLC v. Isla Verde Assn., Inc. (2013) 217 Cal.App.4th 272, 280.) The burden is on plaintiffs, as the parties seeking injunctive relief, to show all elements necessary to support issuance of a preliminary injunction. (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)

As a general rule, the trial court may consider only the grounds stated in the notice of motion. (Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894, 909.) An omission in the notice may be overlooked if the supporting papers make clear the grounds for the relief sought. (Id.)

Here, the Notice cites Rule 64 of the Federal Rules of Civil Procedure (“FRCP”) as the basis for the Motion. FRCP Rule 64 is the federal rule governing the issuance of preliminary injunctions. While the statutory basis provided in the Notice is incorrect, the Notice also provides that the “Motion is based upon this Notice of Motion and Motion, the accompanying Memorandum of Points and Authorities, the supporting declarations and exhibits, the pleadings and papers on file in this action, and on such further argument and evidence as

the Court may consider.” The PI Motion cites to CCP sections 526 and 527 as the grounds for the preliminary injunction. The Court finds that this is sufficient to overlook the deficiency in the Notice and will consider the PI Motion on its merits. Furthermore, while the Notice incorrectly states that the PI Motion would be heard in Department 27, the Court notes that the case has been reassigned twice since the PI Motion’s filing.

The FAC alleges: Plaintiff became Decedent’s personal assistant in about August 2009 to help him oversee various properties Decedent owned. (FAC ¶ 38.) Plaintiff resided at the Mavis Property, in or around September 2014, Plaintiff made arrangements with Decedent and Decedent’s friend Edward Sotelo to purchase the Mavis Property. (See FAC ¶¶ 41-44.)

Because Decedent had a contentious and fraught relationship with his children, including Fahiem, on August 18, 2014, Decedent and his wife executed the Trust to protect their assets. (FAC ¶¶ 37, 46-50, 59-60.) The first three amendments to the Trust named Plaintiff as the first successor trustee of the Trust. (See FAC ¶¶ 61-72.) The First, Second, and Third Amendments include a gift of the Mavis Property to Plaintiff. (See Complaint ¶ 65, 67, 71.)

Fahiem and Decedent resumed a relationship beginning in around August 2018 and Fahiem thereafter instigated problems with staff at Decedent’s various companies to create a hostile environment for Plaintiff. (FAC ¶¶ 56-57.) Fahiem was outwardly aggressive and violent toward Plaintiff beginning in early 2020. (FAC ¶¶ 75-76.) In January 2021, Decedent was hospitalized. (FAC ¶ 78.) On January 22, 2021, Decedent executed a Fourth Amendment ot the Trust, which changed the Trust’s terms to confer benefits to his children instead of Plaintiff. (See FAC ¶ 79-80.) Decedent died on January 23, 2021, the day after the Fourth Amendment was executed. (FAC ¶ 82.) After Decedent’s death, Plaintiff was discharged from his employment duties and Defendants began a campaign to evict Plaintiff from his residence at the Mavis Property and storage unit at the Le Grande Property. (See FAC ¶¶ 82-103.)

The Abdelmajid Declaration submitted as the original Reply largely corroborates the allegations in the FAC. (See generally Abdelmajid Decl..) Defendants’ evidence consists of filings in the Probate action comprised of Fahiem’s verified pleadings, which sharply contest the presentation of facts as to the underlying reasons for Plaintiff being removed as a trustee and beneficiary of the Trust as well as Plaintiff’s conduct after Decedent’s death with respect to the Mavis and Le Grande Properties. (See Declaration of Michelle J. Correll (“Correll Decl.”) ¶¶ 3-4, Exhibits A-B.)

With respect to the Motion’s request that Defendants be enjoined from harassing Plaintiff, the Court notes that neither the Reply, nor the FAC, nor the Supplemental Reply allege or attest to any conduct after the original Complaint and PI Motion were first filed. The Court fails to see the necessity for a preliminary injunction on these grounds, as Plaintiff has not shown a risk of interim harm, particularly as the PI Motion was filed in November 2021 and Plaintiff has not sought any other provisional remedies during its pendency.

Civil Code section 1942.5, subdivision (d) provides: it is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of those acts, for the purpose of retaliating against the lessee because the lessee has lawfully organized or participated in a lessees' association or an organization advocating lessees' rights or has lawfully and peaceably exercised any rights under the law. (Civ. Code § 1942.5, subd. (d).)

The evidence is sufficient to establish some likelihood of success on the merits in this action as the timing of Defendants’ alleged retaliation coincides with Plaintiff’s initiation of the Probate Action. Despite the conflicting accounts of the facts underlying its execution, it is undisputed that the Fourth Amendment was executed one day before Decedent’s death, that its previous iterations appointed Plaintiff as Trustee and that the First, Second, and Third Amendments provided that Plaintiff would receive the Mavis Property as a gift. After the Fourth Amendment was executed and Decedent died, Defendants have taken steps to evict Plaintiff, including filing the Unlawful Detainer Actions. The Court is unable to determine the current status of the Probate Action from the filings in this matter. The evidence of the dispute over the validity of the Fourth Amendment and Defendants’ attempts to evict Plaintiff after Fahiem became appointed Trustee permits a reasonable inference of retaliatory intent at this stage of the litigation to establish the possibility that Plaintiff will prevail on the claim.

In balancing the hardships, the court must consider the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued. (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749.) “Irreparable harm” generally means that the defendant’s act constitutes an actual or threatened injury to the personal or property rights of the plaintiff that cannot be compensated by a damages award. (See Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.)

If Plaintiff were evicted, he would lose possession of unique housing and storage in the Mavis and Le Grande Properties to which he may be legally entitled, particularly if the Fourth Amendment is found invalid and the Third Amendment is reinstated, thereby bestowing an ownership interest in the Mavis Property to Plaintiff as a gift and the authority to manage the remainder of the Trust’s assets. The Court finds that the risk of harm to Plaintiff outweighs the potential of harm of lost rental income to Defendants if Plaintiff remains in possession of the Mavis and Le Grande Properties, particularly since this harm may be offset by an undertaking.

A preliminary injunction ordinarily cannot take effect unless and until the plaintiff provides an undertaking for damages which the enjoined defendant may sustain by reason of the injunction if the court finally decides that the plaintiff was not entitled to the injunction. (See CCP § 529, subd. (a); City of South San Francisco v. Cypress Lawn Cemetery Ass’n. (1992) 11 Cal.App.4th 916, 920.)

Defendants request an undertaking of at least $327,906.75. (Correll Decl. ¶ 5.) This amount is based on an estimated $250,000 in attorney’s fees incurred to defend Plaintiff’s claims and $77,906.75 in estimated damages from Plaintiff’s continued possession of the Mavis and Le Grande Properties. (Id.) The circumstances of Plaintiff’s current occupancy at the Mavis Property are somewhat unclear. Defendants and Plaintiff both indicate that Plaintiff resides in the attic of the single-family residence and that the remainder of the premises is rented out. (See, e.g., Carroll Decl., Exhibit C at ¶¶ 9-13.) There is no evidence that Defendants have not been collecting rent on the Mavis Property. (See id.) With trial currently set for February 5, 2024, the Court will issue a bond of $26,925, based on the $1,795 rental value of the Le Grande Property per month. The Court may increase this amount should Defendants provide evidence of their counsel’s hourly rate during the hearing.

The Court therefore GRANTS the PI Motion. Once Plaintiff posts the undertaking, Defendants are enjoined from proceeding with attempts to evict Plaintiff from the Mavis and Le Grande Properties and the Court hereby stays the Unlawful Detainer Actions pending the conclusion of this litigation. Should the Probate Action be resolved, Defendants may apply for a modification of this order.

If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion made by any person described in CCP section 1987.1, subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it or directing compliance with it upon those terms or conditions as the court shall declare. (CCP § 1987.1, subd. (a).) Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under CCP section 1987.1 to quash or modify the subpoena duces tecum. (CCP § 1985.3, subd. (g).) California Rules of Court (“CRC”), rule 3.1345(b) require separate statements for motions to compel or to quash the production of documents or tangible things at a deposition. (CRC, r. 3.1345(a)(5).)

On June 29, 2022, Plaintiff was served by mail with a consumer notice (the “Notice”) notifying him of a subpoena (the “Subpoena”) to be served on JP Morgan Chase Bank (“Chase”) concerning documents pertaining to two identified cashier’s checks. (See Abdelmajid Decl., Exhibit 2.) Plaintiff argues that the Subpoena is deficient because Defendants did not comply with the service requirements of CCP section 1983.5. Plaintiff additionally argues that the Subpoena is overbroad and seeks confidential information that is not relevant to the action.

Preliminarily, although Plaintiff failed to file a separate statement, as the MTQ involves a Subpoena seeking information about two cashier’s checks, the Court is able to evaluate the adequacy of the Subpoena absent a separate statement.

CCP section 1985.3, subdivision (b) provides: prior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena, if any, and of the notice described in subdivision (e), and proof of service as indicated in paragraph (1) of subdivision (c). This service shall be made as follows:

(1) To the consumer personally, or at his or her last known address, or in accordance with Chapter 5 (commencing with Section 1010) of Title 14 of Part 3, or, if he or she is a party, to his or her attorney of record. If the consumer is a minor, service shall be made on the minor's parent, guardian, conservator, or similar fiduciary, or if one of them cannot be located with reasonable diligence, then service shall be made on any person having the care or control of the minor or with whom the minor resides or by whom the minor is employed, and on the minor if the minor is at least 12 years of age;

(2) Not less than 10 days prior to the date for production specified in the subpoena duces tecum, plus the additional time provided by Section 1013 if service is by mail; and

(3) At least five days prior to service upon the custodian of the records, plus the additional time provided by Section 1013 if service is by mail.

CCP section 1985.3, subdivision (c) provides: prior to the production of the records, the subpoenaing party shall do either of the following: (1) serve or cause to be served upon the witness a proof of personal service or of service by mail attesting to compliance with subdivision (b); or (2) furnish the witness a written authorization to release the records signed by the consumer or by his or her attorney of record. (CCP § 1985.3, subd. (c).)

CCP section 1985.3, subdivision (e) provides: every copy of the subpoena duces tecum and affidavit, if any, served on a consumer or his or her attorney in accordance with subdivision (b) shall be accompanied by a notice, in a typeface designed to call attention to the notice, indicating that (1) records about the consumer are being sought from the witness named on the subpoena; (2) if the consumer objects to the witness furnishing the records to the party seeking the records, the consumer must file papers with the court or serve a written objection as provided in subdivision (g) prior to the date specified for production on the subpoena; and (3) if the party who is seeking the records will not agree in writing to cancel or limit the subpoena, an attorney should be consulted about the consumer's interest in protecting his or her rights of privacy. If a notice of taking of deposition is also served, that other notice may be set forth in a single document with the notice required by this subdivision. (CCP § 1985.3, subd. (e).)

The Court finds that Plaintiff was properly served with the Notice. At the time of service, Plaintiff was self-represented and service at his residence was appropriate under CCP section 1085.3, subdivision (b). Furthermore, Defendants have presented evidence that Chase’s custodian of records was properly personally served.

Under CCP section 2020.410, subdivision (a), a deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired. (CCP § 2040.410, subd. (a).)

CCP section 2017.010 provides that, generally, any party may obtain discovery regarding any relevant matter that is not privileged. For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

A party may obtain discovery regarding unprivileged matters relevant to the subject matter involved in the pending action, if the matter is either itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. (Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 999.) Nevertheless, when evidence sought to be discovered impacts on a person’s constitutional right to privacy, limited protections come into play for that person. (Id.) The privacy protections extend to both a person’s personal and financial matters. (Id.) In ruling on discovery motions, the court must balance competing rights-the right of a litigant to discover relevant facts and the right of an individual to maintain reasonable privacy. (Id.) For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

Plaintiff briefly asserts that the Subpoena seeks information that is not relevant to this action. The Court disagrees and notes that the information requested in the Subpoena relates to documents that Plaintiff submitted in support of the PI Motion. Although Court did not consider this evidence in its analysis of the PI Motion because it was not properly authenticated, Plaintiff squarely placed these documents at issue and they are relevant to the issue of Plaintiff’s right to possession of the Mavis Property, which is relevant to the retaliatory eviction cause of action. Furthermore, the requests are discrete and limited to documents related to two specifically identified cashier’s checks.

With respect to the request for a protective order, a party seeking a protective order has the burden to show good cause for whatever order is sought under Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255. Plaintiff has not satisfied the good cause requirement.

The Court therefore DENIES the MTQ in its entirety. In addition, the Court exercises its discretion and DENIES Defendants’ request for attorney’s fees. (See CCP § 1987.2, subd. (a).)

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] The Court uses first names to distinguish persons with the same last name and intends no disrespect in so doing.

[2] On January 19, 2022, Defendants first filed opposition papers to request a continuance because the Motion was filed in Department 27 rather than Department 40, where the case was then-assigned.

[3] Judge Sotelo overruled the Demurrer to the eighth and ninth causes of action and sustained the Demurrer to the remainder of the Complaint’s causes of action on the grounds that the allegations were uncertain.

[4] After the August 24, 2022 hearing, this matter was transferred twice as a result of peremptory challenges before being assigned to this department.

[5] The Court refers to the two unlawful detainer proceedings collectively as the “Unlawful Detainer Actions.”

[6] As of the time of the hearing, Defendants have not filed objections to the Supplemental Reply.