Judge Margaret L. Oldendorf, Case Number: BC617479, Date: 2023-10-23 Tentative Ruling

These related cases concern events that transpired on April 16, 2014. For ease of reference, case no. BC616980 is referred to as the Fitilchyan Action and case no. BC617479 as the Torosian Action.

The Fitilchyan Action alleges that Arutyun Fitilchyan (Fitilchyan) was contacted by Akop Torosian (Akop) to perform some locksmith services. Fitilchyan alleges they subsequently got into a fight and Akop’s brother, Robert Torosian (Robert), also joined in.

In Case No. BC617479, it is alleged the meeting at the body shop was a “set up” and that Akop and Robert were ambushed. This complaint further alleges that following the shooting, Fitilchyan, Gasparyan, and others attempted to extort money from Akop and Robert.

Before the Court is an unopposed motion for summary judgment filed by Defendant Mkhitaryan in Case No. BC617479. Defendant Mkhitaryan seeks summary judgment, or in the alternative summary adjudication, as to the causes of action asserted by the Torosian brothers against him (Causes of Action 2-8). Mkhitaryan argues the Requests for Admissions that were deemed admitted by the Torosians entitle him to summary judgment.

The motion was filed December 1, 2023. Opposition to the motion was due February 23, 2024. Moving party filed a declaration from his attorney, Frederic J. Greenblatt on March 4, 2024, indicating that he had not received any opposition. No opposition has been filed as of the time of posting this tentative.

Because Defendant has met his burden to demonstrate that no triable issue of material facts exist, the motion for summary judgment is GRANTED.

Summary judgment is appropriately granted where it is shown that an action has no merit or that there is no defense to the action. (Code Civ. Proc. §437c(a).) A motion for summary judgment shall be granted where all the papers submitted show that there is no triable issue of material fact, and that the moving party is entitled to judgment as a matter of law. CCP § 437c(c).)

Summary adjudication may be granted where it completely disposes of a cause of action, an affirmative defense, a claim of damages, or an issue of duty. (CCP § 437c(f).)

A defendant has met “his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c(p)(2).) “[T]he burden [then] shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Id.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

The pleadings play a key role in a summary judgment motion. “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) As the California Supreme Court has observed, “The materiality of a disputed fact is measured by the pleadings, which set the boundaries of the issues to be resolved at summary judgment.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493. [citations omitted.])

Unopposed declarations may be accepted as true. (CCP § 437c(e).) However, affidavits must be liberally construed in favor of the opposition and strictly construed against the moving party in determining the existence of a "triable issue" of fact. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

Pursuant to the Separate Statement, Defendant Mkhitaryan contends that he did not assault or batter Plaintiffs Akop or Robert. (UMF 1.) He did not attempt to extort money from either Plaintiff. ( See, e.g., UMF 2.) He did not commit fraud against either Plaintiff. (UMF 3.) He likewise did not conspire to extort money from or blackmail Plaintiffs. (UMFs 48-51.) He did not “lure” Plaintiffs to the auto garage where the shooting occurred; nor did he know that any other Defendant had a firearm (UMFs 4, 5). He did not injure Plaintiffs, nor act with any intent to harass, oppress or maliciously injure them. (See, e.g., UMFs 6-9.) He is not liable to Plaintiffs for their alleged injuries, and was not present at the time the alleged injuries took place. (See, e.g., UMFs 10-12.) Additionally, Mkhitaryan contends that he did not misuse the court processes. (UMFs 27-33.)[1]

“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant's conduct; (4) plaintiff was harmed; and (5) defendant's conduct was a substantial factor in causing plaintiff's harm.” (So v. Shin (2013) 212 Cal.App.4th 257,269, internal citations omitted.) “The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiff's position would have been offended by the touching.” (Id., internal citations omitted.)

A conspiracy requires proof that the defendant agreed to a certain objective to injure the plaintiff; a wrongful act took place pursuant to the agreement; and damage resulted. (Berg & Berg Ent., LLC v. Sherwood Partners, Inc. (2005) 131 Cal. App.4th 802, 823, internal citations omitted.)

Mkhitaryan urges that none of the elements of conspiracy to commit assault and battery can be met here. In support, Defendant attaches his Requests for Admission (RFA), Set One, served on Plaintiffs. (Greenblatt Decl. Exhs 1 and 2.) Due to Plaintiffs’ failure to respond, the matters in the RFA’s were deemed admitted in a ruling by this Court on February 16, 2023. (Greenblatt Decl. Exh. 4, 2/16/23 Order.) A deemed admitted order establishes that a nonresponding party has responded to the requests by admitting the truth of the facts referenced therein. (Wilcox v. Birtwhistle, 21 Cal. 4^th 973, 979 (1999).)

The RFAs that were deemed admitted establish that: Mkhitaryan did not assault or batter Plaintiffs (RFA 1) or otherwise act with intent to harm the Plaintiffs (RFA 17); that he did not lure Plaintiffs to the auto garage (RFA 4) and did not know that any other Defendant had a weapon (RFA 5); and, ultimately, that he did not harm Plaintiffs (RFA 7). To the extent that Plaintiffs allege that Mkhitaryan was conspiring with the other Defendants to assault and batter Plaintiffs, the established facts that he did not know that the other Defendants had any weapons, and that he did not lure them to the auto garage defeats such a claim.

Accordingly, there is no triable issue of material fact as to the Second Cause of Action for conspiracy to commit assault and battery.

A negligence cause of action requires: duty, breach of duty, causation and damages. (Antiglio v. Corning, Inc. (1998) Cal.4th 604,614.)

Mkhitaryan urges that none of the elements of negligence can be met here. In support, Defendant references the RFA’s that were deemed admitted. Specifically, the RFA’s establish that Mkhitaryan was not negligent at the time of Plaintiff’s injury (RFA 6); that he was not responsible for any injury Plaintiffs suffered, nor did he cause any of Plaintiff’s injuries. (RFAs 7, 28, 30)

Without evidence supporting the key elements of causation and breach of duty, the cause of action for negligence cannot be established.

Accordingly, there is no triable issue of material fact as to the Third Cause of Action.

This cause of action was brought by Marina Fermanyan and Elda Madatyan. As they have dismissed their claims against all Defendants, the Court need not address this aspect of Mkhitarian’s motion.

To establish a claim for abuse of process, a plaintiff must plead two necessary elements: “that the defendant (1) entertained an ulterior motive in using the process, and (2) committed a willful act in a wrongful manner.” (Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 792.)

Mkhitaryan urges that none of the elements of an abuse of process can be met here. In support, he again references his RFA’s that have been deemed admitted. These RFA’s establish that Defendant Mkhitaryan did not abuse the court process through any actions he allegedly took (RFAs 9-15); nor is he responsible for any of Plaintiffs’ financial losses (RFA 16); nor did he intend to harass Plaintiffs or otherwise act with an ulterior motive. (RFA 17.) Accordingly, the two elements of an abuse of process claim cannot be established, and there is no triable issue of material fact as to the Fifth Cause of Action.

Extortion and blackmail are synonymous. Extortion involves: (1) a knowing wrongful threat, (2) the threat included a demand for money, property or other goods. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)

Defendant urges that each element cannot be met here. In support, Defendant references the RFA’s that were deemed admitted. Specifically, the RFAs deemed admitted establish that Mkhitaryan did not extort Plaintiffs (RFA 2); nor attempt to blackmail them. (RFA’s 18,19.) Additionally, any financial loss suffered by Plaintiffs was not caused by Mkhitaryan’s actions (RFA 16); nor did he act with intent to oppress Plaintiffs. (RFA 17.) Consequently, the elements of the cause of action as pleaded by the Plaintiffs for civil extortion cannot be established, as the RFA’s that were deemed admitted are treated as judicial admissions.

Accordingly, there is no triable issue of material fact as to the Sixth Cause of Action.

Extortion involves: (1) a knowing wrongful threat, (2) the threat included a demand for money, property or other goods. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) A conspiracy requires proof that the defendant agreed to a certain objective to injure the plaintiff; that a wrongful act took place pursuant to the agreement; and resulting damages. (Berg & Berg Ent., LLC v. Sherwood Partners, Inc. (2005) 131 Cal. App.4th 802, 823, internal citations omitted.)

Consequently, a conspiracy to commit extortion would require two or more people agreeing and working together to extract money or other property from another person.

Defendant urges that each element of conspiracy to commit extortion and blackmail cannot be met here. Specifically, he asserts that the RFA’s that have been deemed admitted establish that Mkhitaryan did not conspire to commit extortion or blackmail (RFAs 20, 21); nor did he cause any of the Torosian’s alleged financial losses. (RFA 16.)

Accordingly, there is no triable issue of material fact as to the Seventh Cause of Action.

“The elements of a prima facie case for the tort of intentional infliction of emotional distress (IIED) are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct that is considered outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

Defendant urges that the elements of intentional infliction of emotional distress cannot be met here. Specifically, the RFA’s deemed admitted establish that Mkhitaryan did not do anything extreme and outrageous to Plaintiffs (RFAs 22, 24); that Plaintiffs did not suffer severe emotional distress (RFAs 25-28); nor did Mkhitaryan cause severe emotional distress to Plaintiffs (RFAs 23, 25). Additionally, nothing Mkhitaryan did caused injury, medical distress or other damage to Plaintiffs. (RFAs 7, 26-27.) As the essential elements of intentional infliction of emotional distress cannot be established, there exist no triable issue of material fact.

Accordingly, there is no triable issue of material fact as to the Eighth Cause of Action.

For the foregoing reasons, Defendant Mkhitaryan’s motion for summary judgment is granted. Mkhitaryan is ordered to lodge and serve proposed Judgment within five days.

Counsel for Mkhitaryan is ordered to give notice of this ruling to all parties in both cases.

[1] Any material facts alleged with respect to Plaintiff Fermanyan, Robert’s wife, will not be considered, as she dismissed her claims against all Defendants on 1/24/24. Akop’s former wife, Elda Madatyan, dismissed her claims on July 23, 2021.