Judge: Michael P. Linfield, Case: 21STCV24935, Date: 2022-09-13 Tentative Ruling
Case Number: 21STCV24935 Hearing Date: September 13, 2022 Dept: 34
SUBJECT: Motion
for Terminating Sanctions and Monetary Sanctions Against Defendant Stella
Koletic
Moving Party: Plaintiff
HCP MOP California, LP (“HCP MOP”)
Resp. Party: Defendant
Stella Koletic, D.D.S. (“Koletic”)
SUBJECT: Motion
for Summary Judgment, or in the Alternative: Summary Adjudication
Moving Party: Plaintiff
HCP MOP California, LP (“HCP MOP”)
Resp. Party: Defendant
Stella Koletic, D.D.S. (“Koletic”)
Plaintiff HCP MOP California, LP’s Motion for Motion for Summary
Judgment is GRANTED.
Because the Court has granted Plaintiff HCP MOP California, LP’s Motion
for Summary Judgment, the Motion for Terminating Sanctions is DENIED as MOOT.
I.
PRELIMINARY
COMMENTS
Basically, Defendant Koletic is
asking that the Court hold that she is not bound by the rental contract in
which she entered due to the COVID-19 pandemic.
Defendant Koletic also argues that summary judgment is
unconstitutional. Unfortunately for
Defendant, she is wrong on both counts.
The Covid pandemic is not a “get
out of jail free” card, nor does it excuse someone for reneging on her
contractual obligations. Regardless of
the outcome of today’s motion, someone will be stuck paying for the $143,761.39
in rent due under the rental contract; if Defendant Koletic doesn’t pay the $143,761.39,
then Plaintiff HCP MOP will be out the money. There may be political reasons why the
governmental should have stepped in to pay these debts; in fact, the government
offered trillions of dollars in Covid-related relief. But that is not the issue here; in this case,
the issue is simply whether Plaintiff HCP MOP will be stuck with the unpaid
$143,761.39, or whether Defendant Koletic will be required to pay the
$143,761.39 in rents due. As shown
below, Defendant Koletic has not met her burden to raise triable issues of
material fact to show that this case should be presented to a jury.
Additionally, Koletic’s opposition cites
to one author’s opinion in a 2013 Virginia Law Review article entitled “Why
Summary Judgment is Unconstitutional.” (Opposition, p. 15:7-22) This is not
sufficient to call into question the constitutionality of California’s summary
judgment procedure.
Lastly, during oral argument, Defendant Koletic passionately argued
many issues, including whether or not Defendant HCP MOP was the landlord; the
harsh effects of the COVID pandemic; the
unfairness of Plaintiff HCP MOP taking government COVID bailout money and then
filing suit against a tenant; and the harsh results that an adverse judgment would
have upon Koletic, who is now approaching retirement. Unfortunately, although these issues were
strongly argued, Koletic did not provide evidentiary support for her argument in
either her motion or separate statement. “This is the Golden Rule of Summary
Adjudication: if it is not set forth in the separate statement, it does not
exist.” (Massingill v. Department
of Food and Agriculture (2002) 102 Cal.App.4th. 498, 511; Kim v.
Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [“Facts not contained in the
separate statement do not exist.”)
Further, and perhaps more important, this Court is not constituted
to rule on the policy implications of the COVID pandemic or the government’s COVID
bailout. Even if the Court were to agree
with Koletic’s (political) arguments, the Court must rule based on the law and
the evidence presented. In this case,
the Court must decide, based on the evidence presented in Plaintiff’s Motion
for Summary Judgment and Defendant’s opposition, if Plaintiff has shown that
there are no triable issues of material fact.
II.
BACKGROUND
On July 7, 2021, Plaintiff HCP MOP California, LP, a Delaware limited
partnership, filed a complaint against Defendants Stella Koletic, D.D.S. Inc. and
Stella Koletic to allege the following causes of action:
1.
Breach
of Written Lease;
2.
Account Stated;
3.
Money
Had and Received;
4.
Breach
of Written Guaranty
On April 19, 2022, Plaintiff HCP MOP California, LP served a Notice of
Entry of Judgment or Order on Defendant Stella Koletic, D.D.S. that included a
copy of an Order Granting Application for Writ of Attachment granted by the
Honorable Mitchell Beckloff of the Superior Court of California on April 13,
2022.
On May 25, 2022, Defendant Stella Koletic, D.D.S. (“Koletic ”) moved
the Court to reconsider or in the alternative requested relief from the judgment
rendered in favor of Plaintiff HCP MOP California, LP’s motion for pre-judgment
writ of attachment and right to attach order.
On June 3, 2022, HCP MOP moved the Court for “for summary judgment
against defendant Stella Koletic, an individual, in the amount $143,761.39 on
the Complaint filed herein. In the alternative, Plaintiff moved for summary
adjudication in Plaintiff s favor and against Respondents, and each of them, on
the ground that there are no triable issues as to the following issues/defenses:
1.
ISSUE 1:
The first cause of action is for breach of a written lease agreement. Plaintiff
is entitled to summary adjudication on this cause of action in the amount of a143,761.39
because there is no affirmative defense to this cause of action.
2.
ISSUE 2:
The second cause of action is for account stated. Plaintiff is entitled to
summary adjudication on this cause of action in the amount of $143,761.39
because there is no affirmative defense to this cause of action.
3.
ISSUE 3:
The third cause of action is for money had and received. Plaintiff is entitled
to summary adjudication on this cause of action in the amount of $143,761.39
because there is no affirmative defense to this cause of action.
4.
ISSUE 4:
The first cause of action is for breach of a written guaranty of the lease
agreement. Plaintiff is entitled to summary adjudication on this cause of
action in the amount of $143,761.39 because there is no affirmative defense to
this cause of action.” (Motion for Summary Judgment (“MSJ”), p. 2:4-21.)
On July 8, 2022, the Court denied Defendant Stella Koletic’s Motion to
Reconsider (CCP § 1008) or in the Alternative Request for Relief (CCP § 473.1).
The Court granted Plaintiff HCP MOP California, LP’s Motion to Compel Further
Responses to Demand for Documents and Production of Documents from Defendant
Stella Koletic as to Demand for Production of Documents Nos. 13-16 and No. 21
and denied the remaining requests. Lastly, the Court denied HCP MOP’s request
for monetary sanctions.
On August 10, 2022, Koletic opposed HCP MOP’s motion for summary
judgment/ summary adjudication.
On August 10, 2022, HCP MOP moved the Court, pursuant to CCP § 2023.010
et seq. and CCP § 2031.010 et seq., for:
1.
“Terminating
sanctions to strike the amended answer (the operative answer) of defendant
Stella Koletic, an individual ("Koletic") to the Complaint of
Plaintiff;
2.
Enter
the default of Koletic; and,
3.
An order
imposing monetary sanctions against Koletic in the amount of not less than
$3,470.002 for the attorney's fees and costs incurred in bringing this motion .
. . .” (Motion for Terminating Sanctions (“MTS”), p. 2:3-7.)
On August 17, 2022, HCP MOP replied to Koletic’s opposition to its
summary judgment motion.
On September 2, 2022, Koletic opposed HCP MOP’s motion for terminating
sanctions.
On September 6, 2022, HCP MOP replied to Koletic’s opposition to its
terminating sanctions motion.
On September 7, 2022, after the parties had fully briefed the issues, HCP
MOP dismissed its fourth cause of action for breach of Written Guaranty.
III.
ANALYSIS
A.
Requests
for Judicial Notice
On June 3, 2022, HCP MOP requested that the Court take judicial notice
of the following documents in support of its motion for summary judgment/
summary adjudication:
1.
“Public
Order Under City of Los Angeles Emergency Authority issued March 19, 2020
(Revised May 27, 2020) SAFER AT HOME ORDER (See pg. 4, section 5.(ii)(a)). A
true and correct copy is attached hereto as Exhibit "8" and is
incorporated herein by this reference.
2.
Grant
Deed recorded on May 10, 2004, with the Los Angeles County Recorder's Office as
instrument number 2004-1163347. A true and correct copy is attached hereto as
Exhibit "9" and is incorporated herein by this reference.
3.
Amendment
to the Certificate of Limited Partnership of CNL Retirement MOP Encino CA, LP,
a Delaware limited partnership dated November 29, 2006 which changed its name
in 2006 to HCP MOP Encino CA, LP. A true and correct copy is attached hereto as
Exhibit “10” and is incorporated herein by this reference.
4.
Certificate
of Merger of Domestic Limited Partnership dated February 22, 2013 which merged
HCP MOP Encino CA, LP in 2013 into HCP MOP California , LP, a Delaware limited
partnership. A true and correct copy is attached hereto as Exhibit
"11" and is incorporated herein by this reference.
5.
Corporate
Status of HCP MOP California, LP, a Delaware limited partnership as of June
1,2022 from the California Secretary of State website https://bizfileonline.sos.ca.gov/search/business.
A true and correct copy is attached hereto as Exhibit "12" and is
incorporated herein by this reference.” (RJN (MSJ), p. 2:1-19.)
The Court GRANTS HCP MOP’s request as to Request Nos. 1-5. (Evid. Code
§ 452, subds. (b, d).) Although the existence of a document
may be judicially noticeable, the truth of statements contained in the document
and its proper interpretation are not subject to judicial notice if those
matters are reasonably disputable. (StorMedia, Inc. v. Superior Court (1999)
20 Cal.4th 449, 457, fn. 9.)
On August 10, 2022, HCP MOP requested that the Court take judicial
notice of the following documents in support of its motion for terminating
sanctions:
1.
“The
Notice of Entry of the Right to Attach Order issued April 13, 2022, a true and
correct copy of which is attached hereto as Exhibit "1" and
incorporated herein by this reference.
2.
The Writ
of Attachment issued April 21, 2022, a true and correct copy of which is
attached hereto as Exhibit "2" and incorporated herein by this
reference.
3.
The July
11, 2022, Notice of Entry of the Discovery Order filed and served, a true and
correct copy of which is attached hereto as Exhibit "4" and
incorporated herein by this reference.
4.
The
August 4, 2022, Order on Petition for Writ of Mandamus (the "Appeal")
filed by defendant Stella Koletic appealing the Discovery Order (and a motion
for reconsideration which had been denied), a true and correct copy of which is
attached hereto as Exhibit "6" and incorporated herein by this
reference.” (RJN (MTS), p. 1:26—2:8.)
HCP MOP’s requests for judicial notice are DENIED as superfluous. Any
party that wishes to draw the Court’s attention to a matter filed in this
action may simply cite directly to the document by execution and filing date.
(See Cal. Rules of Court, rule 3.1110(d).)
On August 10, 2022, Defendant Stella Koletic, D.D.S. requested that the
Court take judicial notice of the following documents in support of its
opposition to HCP MOP’s motion for summary judgment/ summary adjudication.
1.
Healthpeak
Properties, INC., Earnings Release & Supplemental Report. A true and
correct copy is attached hereto as Exhibit “H” and is incorporated herein by
this reference.
2.
Healthpeak
Properties, INC., Form 10-Q (Quarterly Report Pursuant to § 13 or 15(d) of the
Securities Exchange Act of 1934). A true and correct official copy from the SEC
is attached hereto as Exhibit “I” and is incorporated herein by this reference.
3.
Medical
Building Safety Recommendations for 5400 Balboa Blvd, Encino, CA 91316. A true
and correct copy from the US Agency for Healthcare Research and Quality is
attached hereto as Exhibit “J” and is incorporated herein by this reference.
4.
American
Medical Association’s - Principles of Medical Ethics. A true and correct copy
is attached hereto as Exhibit “K” and is incorporated herein by this reference.
5.
World
Medical Association’s - Declaration of Geneva. A true and correct copy is
attached hereto as Exhibit “L” and is incorporated herein by this reference.
Defendant’s Request for Judicial Notice was not filed as a separate
pleading; however, defendant is representing herself in pro per, and the Court
will overlook this procedural flaw. (See, e.g.,
Bruno v. Superior Court
(1990) 219 Cal.App.3d 1359, 1363; (California Rules of Court, rule 10.960,
subdivision (b).) Nonetheless, the
Court DENIES Defendant’s Request for Judicial Notice of these five documents,
as they are not documents the contents of which the court can judicially
notice. (Evid. Code, § 452.)
B.
Legal
Standard
1.
Motion
for Summary Judgment/ Summary Adjudication
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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “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.)
“On a motion for summary judgment, the
initial burden is always on the moving party to make a prima facie showing that
there are no triable issues of material fact.” (Scalf v. D. B. Log Homes,
Inc. (2005) 128 Cal.App.4th 1510, 1519.) When a plaintiff seeks summary
judgment or adjudication, the plaintiff must produce admissible evidence on
each element of each cause of action on which judgment is sought. (CCP §
437c(p)(1).) The opposing party on a motion for summary judgment is under no
evidentiary burden to produce rebuttal evidence until the moving party meets
his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999)
75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden
shifts to the opposing party to show, with admissible evidence, that there is a
triable issue requiring the weighing procedures of trial. (CCP § 437c(p).)
"A party may move for summary
adjudication as to one or more causes of action within an action, one or more
affirmative defenses, one or more claims for damages, or one or more issues of
duty, if the party contends that the cause of action has no merit, that there
is no affirmative defense to the cause of action, that there is no merit to an
affirmative defense as to any cause of action, that there is no merit to a
claim for damages, as specified in Section 3294 of the Civil Code, or that one
or more defendants either owed or did not owe a duty to the plaintiff or
plaintiffs. A motion for summary adjudication shall be granted only if it
completely disposes of a cause of action, an affirmative defense, a claim for
damages, or an issue of duty." (CCP § 437c(f)(1).)
“When deciding whether to grant summary
judgment, the court must consider all of the evidence set forth in the papers
(except evidence to which the court has sustained an objection), as well as all
reasonable inferences that may be drawn from that evidence, in the light most
favorable to the party opposing summary judgment.” (Avivi v. Centro Medico
Urgente Medical Center (2008) 159 Cal.App.4th 463, 467; CCP § 437c(c).)
In analyzing motions for summary judgment,
courts must apply a three-step analysis: "(1) identify the issues framed
by the pleadings; (2) determine whether the moving party has negated the
opponent's claims; and (3) determine whether the opposition has demonstrated
the existence of a triable, material factual issue." (Hinesley v.
Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.)
2.
Motion
for Terminating Sanctions
Code of Civil Procedure section 2023.030
gives the court the discretion to impose sanctions against anyone engaging in a
misuse of the discovery process. A court may impose terminating sanctions by
striking pleadings of the party engaged in misuse of discovery or entering
default judgment. (CCP § 2023.030(d).) A violation of a discovery order is
sufficient for the imposition of terminating sanctions. (Collison &
Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.) Terminating
sanctions are appropriate when a party persists in disobeying the court's
orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)
A terminating sanction is a "drastic
measure which should be employed with caution." (Deyo, 84
Cal.App.3d at 793.) "A decision to order terminating sanctions should not
be made lightly. But where a violation is willful, preceded by a history of
abuse, and the evidence shows that less severe sanctions would not produce
compliance with the discovery rules, the trial court is justified in imposing
the ultimate sanction." (Mileikowsky v. Tenet Healthsystem (2005)
128 Ca1.App.4th 262, 279-280.) While the court has discretion to impose
terminating sanctions, these sanctions "should be appropriate to the
dereliction and should not exceed that which is required to protect the
interests of the party entitled to but denied discovery." (Deyo, 84
Cal.App.3d at 793.) "[Al court is empowered to apply the ultimate sanction
against a litigant who persists in the outright refusal to comply with his
discovery obligations." (Ibid.) Discovery sanctions are not to be imposed
for punishment, but instead are used to encourage fair disclosure of discovery
to prevent unfairness resulting for the lack of information. (See Midwife v.
Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated
in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 9711.)
C.
Discussion
1.
Summary
Judgment/Summary Adjudication
a.
First
Cause of Action for Breach of Written Lease
The elements of a cause of action for breach of contract are: (1) the
contract, (2) plaintiff's performance or excuse for nonperformance, (3)
defendant's breach, and (4) the resulting damages to plaintiff. (Coles v.
Glaser (2016) 2 Cal.App.5th 384, 391 [cleaned up].)
HCP MOP presented evidence of a contract, HCP MOP’s performance,
Koletic’s breach, and HCP MOP’s damages. (HCP MOP’s Statement of Undisputed
Material Facts (“PUMF”), Nos. 4-10, 12, 14, 18, 22; Meek Decl., ¶¶ 8-15, 17,
19, 20, 23-25, 29-35.)
Koletic does not present facts in opposition to HCP MOP’s prima
facie breach of contract. Koletic fails to offer any facts in opposition to
the HCP MOP evidence the Court notes above. Koletic does not take issue with
HCP MOP’s fact statements, suggesting instead that the Lease Agreement between
the parties was “dissolved by the COVID-19 pandemic.” (Koletic’s Response to
HCP MOP’s Undisputed Material Facts (“DUMF”), Nos. 4-8, 10, 12.) Koletic
supports this assertion with reference to exhibits which have not been admitted
into evidence. (DUMF No. 14, for example.)
The Court finds that Koletic fails to meet her burden to show the Court
a triable issue of material fact through admissible evidence. Summary
adjudication of the First Cause of Action for Breach of Written Lease is
warranted.
b.
Second
Cause of Action for Account Stated
The essential elements of an account stated are: (1) previous
transactions between the parties establishing the relationship of debtor and
creditor; (2) an agreement between the parties, express or implied, on the
amount due from the debtor to the creditor; (3) a promise by the debtor,
express or implied, to pay the amount due. (Leighton v. Forster (2017) 8
Cal.App.5th 467, 491 [cleaned up].)
HCP MOP presents evidence of previous transactions between the parties,
an agreement on the amount due, and a promise by Koletic to pay the amount due.
(PUMF Nos. 23-33, 37-38, 40-44.) Koletic fails to present admissible evidence
to contradict HCP MOP’s admissible evidence concerning Koletic’s performance
under the Lease Agreement until April 2022. (DUMF Nos. 23-33, 37-38, 40-44.) No
evidence is presented that establishes a direct reason for Koletic’s
noncompliance nor is evidence presented to show how this specific Lease
Agreement was “dissolved” by governmental responses to the COVID-19 pandemic.
The Court finds that Koletic fails to meet her burden to show the Court
a triable issue of material fact through admissible evidence. Summary
adjudication of the Second Cause of Action for Account Stated is warranted.
c.
Third Cause
of Action for Money Had and Received
"A cause of action is stated for money had and received if the
defendant is indebted to the plaintiff in a certain sum ‘for money had and
received by the defendant for the use of the plaintiff." (Gutierrez v.
Girardi (2011) 194 Cal.App.4th 925, 937.)
HCP MOP presents evidence of Koletic’s indebtedness to HCP MOP in the
amount of $143,761.39. (Meek Decl., ¶¶ 24-31, 34(a-c), 35, 36; Compendium of
Evidence, Exs. 1-3, 7.) Koletic does not present admissible evidence to suggest
that the debts HCP MOP identified were paid or otherwise mitigated.
The Court finds that Koletic fails to meet her burden to show the Court
a triable issue of material fact through admissible evidence. Summary
adjudication of the Third Cause of Action for Money Had and Received is
warranted.
d.
Fourth
Cause of Action for Breach of Written Guaranty
HCP MOP dismissed this cause of action of September 7, 2022, so the
Motion for Summary Adjudication as to this cause of action is moot.
2.
Terminating
Sanctions and Monetary Sanctions
On July 8, 2022, the Court ordered Koletic to serve responses to HCP
MOP’s Demand for Production of Documents Nos. 13-16 and 21 within two weeks.
(Minute Order, July 8, 2022, p. 2.) Koletic was to provide HCP MOP the
requested and required documents by July 22, 2022. HCP MOP contacted Koletic on
July 25, 2022, having not received the documents. (Rosenbaum Decl., ¶ 10.)
Koletic expressed its disinterest in compliance with the Court’s Order on
August 4, 2022. (Rosenbaum Decl., ¶ 13.) As of August 10, 2022, no documents
have been filed in compliance with the Court’s order. (Rosenbaum Decl., ¶ 16.)
However, Because the Court has granted Plaintiff HCP MOP California,
LP’s Motion for Summary Judgment, the Motion for Terminating Sanctions is
DENIED as MOOT.
IV.
CONCLUSION
Plaintiff HCP MOP California, LP’s Motion for Motion for Summary
Judgment is GRANTED.
Because the Court has granted Plaintiff HCP MOP California, LP’s
Motion for Summary
Judgment, the Motion for Terminating Sanctions is DENIED as MOOT.