Raintree Del Prado LLC v. Sheikhan

occurs.” (Zakk v. Diesel (2019) 33 Cal. App. 5th 431, 455–56) Here, plaintiff has sufficiently pled facts to avoid the statute of limitations.

While MSF raises an additional new ground for demurrer in its Reply, the Court declines to consider such.

Accordingly, the demurrer to the 4th cause of action is OVERRULED.

Four Motions for Monetary Sanctions

MSF and Manly have each filed two motions for sanctions against plaintiff pursuant to CCP §§128.5 and §128.7. All four motions are based on defendants’ assertion that the “plaintiff has filed a complaint that alleges legally frivolous cause of action that are clearly time barred and pursued in bad faith.” (See page 1, lines 9-10 of: ROA 84 – MSF §128.5 motion; ROA 88 – MSF §128.7 motion; ROA 129 – Manly §128.5 motion; ROA 139 – Manly §128.7 motion)

The Court does not find the assertion of the 2nd – 4th causes of action in the complaint to have been frivolous.

Further, plaintiff submits copies of the actual notices which were served by the defendants under the safe harbor provisions of the two statutes. The notices were incomplete because they did not contain the time and date of the hearing. Instead, they were either blank or said “TBD.” (Exh. 1 to Soleymani decl. at ROA 143 and ROA 198) This omission is fatal. (Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal. App. 4th 535, 538)

Accordingly, the four motions for sanctions are DENIED.

Defendants’ objections Nos. 1-25 (ROA 151) and objection nos. 1-30 (ROA 211) to the declaration of Navid Soleymani are OVERRULED.

Plaintiff’s requests for monetary sanctions are DENIED.

Defendants shall give notice.

3. Raintree Del Prado LLC v. Defendants Tawnya C. Sheikhan (“Tawnya” individually); and Tatijana Sheikhan N. Sheikhan’s (“Tatijana” individually; Defendants” together with 24-1394670 Tawnya) Motion for Summary Judgment, or in the alternative, Summary Adjudication, is GRANTED in part and DENIED in part.

Defendant moves for summary judgment/adjudication as to all three of the causes of action (“COA”) in plaintiff Raintree Del Prado LLC’s (“Plaintiff”) Complaint. (Civ. Proc. Code § 437c(p) and (f).)

A) COA No. 1 – Breach of Contract

“To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant's breach and resulting damage. [Citation.] If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299, 307.)

Plaintiff alleged that by entering the Lease, Defendants were obligated to care for the Property and were liable for any damages caused thereto by Defendants and/or their guests and/or occupant. (Complaint ¶ 20.) Plaintiff performed all terms and obligations under the Lease. (Complaint ¶ 21.) On 12/07/23, Soza, who was Defendants’ guest, lost control of her vehicle and drove it into a wall on the Property, damaging the wall and the elevator. (Complaint ¶ 22.) Plaintiff was harmed because of Soza’s actions in excess of $225,000. (Complaint ¶ 23.)

Defendants put forth evidence Soza was acting as an independent contractor for business purposes while on the property. As such, Soza is an “invitee” and not a “guest” under the legal definitions of those words. (See, INVITEE, GUEST, and OCCUPANT, Black's Law Dictionary (12th ed. 2024).) “[A]n invitee is a business visitor who is invited or permitted to enter or remain on the land for a purpose directly or indirectly connected with business dealings between them.” (Rowland v. Christian (1968) 69 Cal. 2d 108, 113–14.)

The subject lease agreement specifies in what instances and due to what categories of individuals Defendants as lessees are liable for damages under the lease. For invitees, under the ’12. REIMBURSEMENT’ section of the Lease Defendants are only liable “(1) damage to doors, windows, or screens; (2) damage from windows or doors left open; and (3) damage from wastewater stoppages caused by improper objects in lines exclusively serving your dwelling. We may require payment at any time, including advance payment of repairs for which you're liable.

Delay in demanding sums you owe is not a waiver.” (Complaint, Ex. 1 § 12 – Reimbursement.) Although Defendants are also liable for certain acts of an invitee under the ’Casualty Loss’ section, under the express terms of the contract, liability appears to be for damages only inside the lessee’s dwelling. (Complaint, Ex. 1 § 25 – RESIDENT SAFETY AND PROPERTY LOSS.)

As the complaint states the damage was to an exterior wall and an elevator, Defendants have met their initial burden of showing they are not liable under the express terms of the contract for damages caused by an invitee. The burden transfers to Plaintiff to show there are triable issues of material fact. (Civ. Proc. Code § 437c(p)(2).)

Plaintiff’s initial argument that Soza’s vehicle was not permitted to be parking in parking structure does not appear to be backed by the specific terms of the lease. Under the terms of the lease, “guest must park in guest parking only.” (Opposition, Ex. 1 at RT LEASE 029 § 8.) Again, Soza was an invitee and not a guest. Notably, other sections specifically use the terms “guest” and “invitee” supporting the intent of the drafter that these terms were different. (Opposition, Ex. 1 at RT LEASE 029 §§ 7, 9.)

However, Soza did not have a driver's license, yet drove a vehicle on the Property, which was ‘unlawful conduct’ of an invitee, which would be a violation of the policies. (Opposition, Ex. 1 at RT LEASE 034 § 39.)

Additionally, under the terms of the lease, Defendants are liable for damages caused by invitees to “doors.” There is no specific delineation under the terms of the lease that the covered damage is only to doors inside of an apartment versus to any door on the property. Defendant has produced evidence that the elevator door was damaged as the result of Defendant’s invitee (Soza) driving into the wall and damaging parts of the elevator, including the elevator door. (Opposition, Ex. 4.) There is enough admissible evidence to support a triable issue of fact as to whether Defendants are liable for at least some portion of the damage Soza caused.

Defendants also argue this lawsuit is not the proper remedy for a breach of the Lease as the remedies “only” include eviction, holdover damages, the reporting unpaid rent to reporting agency, lockout, forfeiture of rental discounts, the payment of unpaid rent, including the remaining rent for the lease term under Lease § 32. However, that section only applies to Defendants and any guest or occupant. It does not apply to invitees. That section, entitled “Default By Resident,” involves several defaults.

As cited by Defendants, “[a] breach of a lease gives rise to contractual damages in accordance with the provisions of the lease. . .” (Glendale Fed. Bank v. Hadden (1999) 73 Cal. App. 4th 1150, 1156.) Further, “[t]he whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.” (Civ. Code § 1641.) The specific terms of the Lease require reimbursement for specific damages in specific instances (Sections 12 and 25).

The failure to reimburse Plaintiff for damages under the Lease would be a breach of contract.

There are sufficient triable issues of material fact to DENY the motion as to this COA.

B) COA No. 2 – Negligence

“The elements of a cause of action for negligence are well established. They are '(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.' ” (Ladd v. Cty. of San Mateo (1996) 12 Cal. 4th 913, 917.) “[T]he existence of a duty is a question of law for the court.” (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal. 4th 814, 819.)

Plaintiff alleges Soza did not have a valid driver’s license at the time of the incident and that Defendants should not have allowed Soza to drive into the parking lot. (Complaint ¶ 27.) Under the terms of the Lease, Defendants and Soza owed a duty to Plaintiff not to engage in activities or behavior which may threaten the rights, comfort, health, safety, or convenience of others on the Property. (Complaint ¶ 28.)

Defendants were liable for the behavior of Soza and the damage Soza caused. (Complaint ¶ 29.) The incident disturbed the comfort, safety, and/or convenience of other tenants. (Complaint ¶ 30.) Defendants are therefore liable for the damages. (Complaint ¶ 31.)

Defendants argue Soza was an independent contractor and as such, they are not liable for injuries caused by the contractor’s negligence. “At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor's negligence in performing the work.” (Srithong v. Total Inv. Co. (1994) 23 Cal. App. 4th 721, 725.) Soza’s work was as a housecleaner, which had nothing to do with driving a vehicle and Soza’s work had been completed at the time of the incident as she was leaving the Property when the incident occurred. Defendants have met their initial burden of showing the lack of duty of care for the actions of an independent contractor. The burden transfers to Plaintiff to show triable issues of fact remain.

Plaintiff argues a duty of care under Civ. Code § 1714(a):

“(a) Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code § 1714.)

“[A]s to foreseeability, ... the court's task in determining duty ‘is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed....’ ” [Citations.] For purposes of duty analysis, “ ‘foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.’ ... [I]t is settled that what is required to be foreseeable is the general character of the event or harm—e.g., being struck by a car while standing in a phone booth—not its precise nature or manner of occurrence.” ‘” (Kesner v.

Superior Ct. (2016) 1 Cal. 5th 1132, 1145.)

Plaintiff argues Defendants were aware of Soza’s lack of driving experience as Soza told Tatijana she had “just started driving,” and that Soza “couldn’t drive inside because [she] had barely started driving.” (Opposition, Ex. 3 at p. 15:22-25.) Tatijana drove the vehicle into the parking structure for Soza. Instead of driving the vehicle back out, Tatijana asked Soza if Soza could drive the vehicle out and Soza responded she would try. (Opposition, Ex. 3 at p. 14:24-15:3.) Soza then got into the accident as she was driving the vehicle out.

The question is whether the accident was foreseeable when Tatijana was aware Soza had just started driving and did not drive inside parking structures, and Tatijana drove the vehicle into the structure herself, but accepted Soza’s statement that she would try to drive out instead of driving the vehicle out herself. The “going and coming rule” might alleviate Defendants’ liability for Soza’s negligence, however it does not alleviate Tatijana’s liability for her own acts of negligence.

The motion is DENIED as to Tatijana on this COA.

Although Tawnya is a signatory to the Lease, there is no evidence Tawnya was involved with moving the vehicle into/out of the structure. The motion is GRANTED as to Tawnya.

C) COA No. 3 – Indemnification

“Express indemnity refers to an obligation that arises “ ‘by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances.’ ” [Citation.] Express indemnity generally is not subject to equitable considerations or a joint legal obligation to the injured party; rather, it is enforced in accordance with the terms of the contracting parties' agreement. [Citation.] In the context of noninsurance indemnity agreements, if a party seeks to be indemnified for its own active negligence, or regardless of the indemnitor's fault, the contractual language on the point “must be particularly clear and explicit and will be construed strictly against the indemnitee.” [Citations.]

In this sense, express indemnity allows contracting parties “great freedom to allocate [indemnification] responsibilities as they see fit,” and to agree to “protections beyond those afforded by the doctrines of implied or equitable indemnity.” ‘ “ (Prince v. Pac. Gas & Elec. Co. (2009) 45 Cal. 4th 1151, 1158.)

“Indemnity either imposes the entire loss on one of two or more tortfeasors or apportions it on the basis of comparative fault. Contribution, on the other hand, is a creature [] of statute [] and distributes the loss equally among all tortfeasors. The former requires a determination of fault on the part of the alleged indemnitor; the latter requires a showing that one of several joint tortfeasor judgment debtors has paid more than a pro rata share of a judgment. Where a right of indemnity exists there can be no right of contribution. (Code Civ.Proc., § 875, subd. (f).)

A right of contribution can come into existence only after rendition of a judgment declaring more than one defendant jointly liable to the plaintiff. (Code Civ.Proc., § 875, subd. (c).)” (Coca-Cola Bottling Co. v. Lucky Stores, Inc. (1992) 11 Cal. App. 4th 1372, 1378 [“Coca-Cola”].) “In view of such subordination, a resolution of the loss-sharing claims of multiple tortfeasors are most often completely resolved by a comparative indemnification crosscomplaint in the underlying action rather than by a post judgment claim for contribution. [Citation.]

However, it does not follow that a defendant is limited to such procedure against its co-defendants; nor do we see any reason to conclude that one defendant who unsuccessfully seeks indemnification is prohibited from thereafter seeking contribution if the statutory preconditions are met. The statute prohibits contribution only if a right to indemnity has been established. (Code Civ.Proc., § 875, subd. (f).) In other words, a defendant cannot recover under both procedures, but there is no reason to deny a right to at least one of them.” (Id., at 1379.)

“[I]t has been said that if one seeks, in a noninsurance agreement, to be indemnified ... regardless of the indemnitor's fault ... language on the point must be particularly clear and explicit and will be construed strictly against the indemnitee.” (Morlin Asset Mgmt. LP v. Murachanian (2016) 2 Cal. App. 5th 184, 191.)

Plaintiff alleges that under the Lease, Defendants are required to indemnify Plaintiff against all damages arising out of “[Soza’s] negligent conduct.” (Complaint ¶ 36.)

Defendants correctly point out the indemnification clauses in the Lease do not apply to the facts of this matter. Under the specific terms, the first indemnification clause only applies to tenants and their guests and occupants, not to invitees. (Opposition, Ex. 1 at RT LEASE 010 § 41.) While the second indemnification clause does apply to invitees, it only applies to damage within the apartment for failure to properly maintain heat which might cause broken water piper. Opposition, Ex. 1 at RT LEASE 007.)

As the indemnification language does not require Defendants to indemnify Plaintiff under the circumstances of the incident, Defendants have met their initial burden. Plaintiff did not meet the transferred burden on this COA.

The motion is GRANTED as to this COA.

Defendants to give notice.

Plaintiff’s Objections to Lowery Decl.:

Sustained as to no. 1 (lacks foundation, hearsay, no authentication, lacks personal knowledge).

Plaintiff’s Objections to Tatijana Sheikhan Decl.:

Sustained as to nos. 1 – 2 (argumentative, calls for legal conclusion).

Overruled as to nos. 3 – 7 (personal knowledge/experience).

Plaintiff’s Objections to Tanya Sheikhan Decl.:

Sustained as to no. 1 (argumentative, calls for legal conclusion).

Overruled as to nos. 2 – 4 (personal knowledge).

Defendants’ Objection to Sohovich Decl.:

Overruled as to no. 1 (business records).