1. MCV-248332, Russell Goodman v. City of Sonoma
This action arises from an abatement proceeding initiated by the City of Sonoma (“City”) relating to multiple Code violations found on Russell Goodman’s (“Goodman”) property. On December 19, 2018, the City issued an Administrative Notice and Order (“ANO”) regarding the violations and which purportedly included notice to attend a hearing on January 11, 2019 for a determination of facts and findings and whether penalties and costs should be opposed. On February 26, 2019, after Goodman failed to appear at the hearing, the City issued an Administrative Enforcement Order (“AEO”), which made findings of the existence of a nuisance; upheld 10/21 of the violations; and imposed penalties and costs on Goodman in the amount of $33,556.75. Additionally, the AEO ordered Goodman to correct or abate the nuisance within 30 days and directed the City to take the steps necessary to enter the property and abate the nuisance if Goodman did not comply. Finally, the AEO informed Goodman of his “limited right to appeal” the order “with Sonoma County Superior Court within 20 days of the date of this Order, pursuant to Government Code section 53069.4 (b)(l) and City of Sonoma Municipal Code section 1.30.200…” (AEO at pp. 10-11.)
In his appeal, Goodman raises several issues. First, Goodman claims that he has a right to appeal the AEO in the Superior Court “[n]otwithstanding the provisions of Chapter 1.24 [of the Sonoma Municipal Code] or section 1094.5 or 1094.6 of the California Code of Civil Procedure.” (Petitioner’s Brief at 2:1-12.) Second, Goodman contends that the ANO was not properly served because it was served by the “Enforcement Officer,” who is a “party to the action.” (Id. at 2:19-3:7.) Third, Goodman avers that Notice of the ANO was “fatally defective” because it was missing pages 6-7, which contained the date and time of the hearing. Goodman contends that he did not attend the hearing because he did not have notice that it was occurring and therefore, he was deprived of his due process right. Finally, Goodman contends that the time between the issuance of the ANO (December 19, 2018) and the imposition of the fines and penalties (February 26, 2019) was insufficient for the person responsible to obtain the required permits, let alone remedy the violations.
In its response, the City first contends that under Sonoma Municipal Code (“SMC”) section 1.30.200 and because the hearing officer made findings that a nuisance exists and ordered Goodman to abate that nuisance, Goodman’s sole right to judicial review was a writ proceeding. Thus, the City contends that the Court lacks jurisdiction to hear this limited appeal. Second, the City states that service of the ANO was properly made by a “contractor for code enforcement expertise” and because the process server “will serve no more than ten AN&O’s” in any given year, he is exempt from the registration procedures and is also not a party to the action. Third, the City avers that whether or not Goodman was served with all pages of the ANO, service was proper because the ANO was both served by mail and by posting a copy of the ANO on the property, as allowed by law. Finally, the City contends that Goodman was given ample time to correct the “continuing violations” on the property based on the fact that he was first given notice of the violations on March 12, 2018. Further, the City contends that under the Municipal Code, the time between service of the ANO and the hearing was proper. (See, SMC §1.30.130.)
After reviewing the briefs and related documents filed by the parties, the City’s AEO is AFFIRMED and Goodman’s appeal is DENIED, on both procedural and substantive grounds.
First, the Court agrees with the City that Goodman’s sole right to judicial review was through a writ of mandate. Specifically, the Sonoma Municipal Code states in part that “[a]ny finding in an administrative enforcement order that a nuisance exists and any order made within an administrative enforcement order to abate or correct the nuisance shall constitute a final, administrative determination, not be appealable, and shall be subject to judicial review in the superior court by filing with the court a petition for writ of mandate pursuant to the provisions and time limits set in Code of Civil Procedure Section 1094.6.” (SMC §1.30.200, citing, Ord. 03-2018 § 3 (Exh. C), 2018; Ord. 02-2005 § 3, 2005). Here, there is no dispute that the AEO found, in part, that Goodman’s property had been deemed a “public nuisance” and that Goodman was ordered to abate that nuisance. Thus, under the SMC, Goodman’s sole right to review was through a writ of mandate, not a limited appeal. Goodman has not cited any authority that would entitle him to review in this appeal.
Moreover, even were the Court to consider the appeal on its merits, Goodman has failed to present any applicable legal authority or sufficient evidence for the relief he requests. To start, Goodman fails to provide sufficient evidence that he did not receive proper service of the ANO. The Sonoma Municipal Code states in part that “[e]xcept as otherwise set forth below, whenever a notice is required to be given under this chapter, the notice shall be served by any of the following methods: 1. Personal service; or 2. Prepaid first class United States Postal Service; or 3. Posting the notice conspicuously on or in front of the property; or 4. Printed verification of notice by electronic mail (email).” (SMC §1.30.100(C).) Here, the City has sufficiently shown that the ANO in this case was served both by mail and by posting the notice on the property. By contrast, Goodman has failed to provide applicable authority or sufficient evidence to show that service by the “contractor for code enforcement” was not proper or that he did not receive proper service by mail or by the posting of notice on his property. Finally, Goodman has not shown that there was insufficient time to remedy the nuisance and even if that were factually correct, Goodman has not stated any authority to show that is a basis for this appeal.
Thus, for the reasons stated above, the AEO is affirmed and Goodman’s appeal is denied.
The City’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with California Rules of Court, Rule 3.1312.
2. SCV-262293, Parks v. Easley
This case is on calendar for plaintiff David Parks’ (“David”) “motion to show good cause why his complaint and action should not be dismissed” so that he can pursue the case against the co-plaintiff, Priscilla Parks (“Priscilla”), and name her as Doe Defendant No. 1. David brings this motion under Code of Civil Procedure section 473(a) and (b) and Rule of Court 3.1385. Specifically, David contends that the Notice of Settlement of the “Entire Action” was filed due to a mistake by his attorney and David only intended to settle the action with named defendants and intended to pursue the case against his sister and co-plaintiff, Priscilla. David contends there is “good cause” not to dismiss the case based on his attorney’s declaration of fault, which states in part “[u]nfortunately, through my error, I prepared or caused to be prepared and submitted an ‘Unconditional Notice of Settlement of Entire Case” form as to both Plaintiffs” when instead, he intended to “dismiss those Defendants only and identify DOE 1 as Priscilla Parks, who was now exiting the case as a Plaintiff.” (See, Edgar Dec. at ¶3.)
Priscilla does not oppose the motion and in fact, she submits a Declaration which states in part that “new facts caused me to realize that I was the primary cause of my brother’s harm. He is therefore entitled to compensation from me. At the time of the incident, I was insured. I remain insured. My brother has a right to claim against my insurance policy, or against me personally. I do not dispute his right to do so, and do not oppose him substituting me in as a Doe Defendant in the existing case.” (See, Priscilla Dec. at ¶3.)
David’s Motion is GRANTED. The January 23, 2019 Unconditional Notice of Settlement of Entire Action is hereby VACATED. Plaintiffs SHALL file a Request for Dismissal, as to Defendants only, and the proposed Doe Amendment within fifteen (15) days of the Court’s final order.
California Rules of Court, Rule 3.1385 states in part that if an entire case settles, plaintiff must immediately file and serve written notice of the settlement and plaintiff “must serve and file a request for dismissal of the entire case within 45 days after the date of settlement of the case.” (Cal. R. Ct. 3.1385(a)-(b).) If the plaintiff does not file the dismissal as required, the court must dismiss the entire case 45 days after it receives notice of settlement unless good cause is shown why the case should not be dismissed.” (Cal. R. Ct. 3.1385(b).)
As relevant here, Code of Civil Procedure section 473(b) provides for both discretionary and mandatory relief from a dismissal. (See, Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838–839; see also, Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 927.) The mandatory relief provision states in part that “[n]otwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc. §473(b).)
Here, David has shown sufficient “good cause” for the Court to vacate the January 23, 2019 settlement; allow David to file a Request for Dismissal, as to defendants only; and allow David to file the proposed Doe Amendment.
David’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with California Rules of Court, Rule 3.1312.
3. SCV-262299, Dowling v. Fire Insurance Exchange
Continued by the court’s own motion to July 24, 2019 at 3:00 pm in Department 19, pending ruling on MSJ under submission.
4. SCV-262709, Santero v. Lyall
Attorney Michael Henderson’s motion to be relieved as counsel for Plaintiff Renay Santero is GRANTED. Unless oral argument is requested, the Court will sign the Proposed Order lodged with the motion.
5. SCV-264141, Parikh v. Smith
This matter is on calendar for Sushanta Parikh’s (“Parikh”) demurrer and motion to strike certain causes of action and allegations in Jason Smith’s (“Smith”) verified Cross-Complaint. Specifically, Parikh demurs to the third cause of action for “Judicial Expulsion of Parikh as Partner” under Corporations Code section 16601 on the grounds the Cross-Complaint fails to allege sufficient facts to establish that a partnership exists between the parties. Parikh contends that the parties’ relationship existed solely through Piner, a California Corporation, and therefore, the “partnership” statutes are irrelevant. Additionally, Parikh contends that under Corporations Code section 16202, a partnership cannot exist when a corporation is formed. Further, Parikh’s demurrer to the fourth cause of action for “Judicial Expulsion of Parikh and Doe Defendants as Members of Piner’s Board of Directors” under Corporations Code section 304 on the grounds the Cross-Complaint fails to state sufficient facts to establish that Parikh is a current “director” of Piner. Finally, Parikh contends the Cross-Complaint is uncertain because it fails to state specific facts of fraud, conspiracy, or bad faith against any of the director defendants.
In his Motion to Strike, Parikh seeks to strike Smith’s prayer for a “preliminary and permanent injunction” and all references to the law firm Solomon, Ward, Seidenwurm & Smith, LLP. Parikh contends that Smith has failed to allege sufficient facts to justify a prayer for injunctive relief, preliminary or permanent, and that the allegations against the law firm are irrelevant and intended solely to disparage its reputation.
In his opposition, Smith contends there is a valid cause of action to expel Parikh from the “partnership” based on the allegations that Smith and Parikh were in business together prior to Parikh receiving any stock from Piner. Thus, Smith argues that in the event he prevails on his cause of action to rescind the stock sale to Parikh, the parties’ relationship will revert to a partnership and therefore, the cause of action is sufficient. Additionally, Smith contends that despite allegations in the Cross-Complaint that Smith “holds all seats on the Board of Directors of Piner,” the Cross-Complaint also alleges that “[a]s a direct result of the fraud by Parikh…Parikh became a holder on the majority of seats on Piner’s Board of Directors…” (See, Cross-Complaint at ¶53.) Thus, with respect to both causes of action, Smith concludes that when the Cross-Complaint is read as a whole and the properly pleaded facts and reasonable inferences are accepted as true, the third and fourth causes of action are valid.
In his opposition to the motion to strike, Smith contends that his prayer for injunctive relief is proper under the causes of action asserted and that the Cross-Complaint’s reference to Solomon, Ward, Seidenwurm & Smith, LLP is proper because it is relevant to the allegations of fraud and the related causes of action.
Parikh’s Demurrer to the Cross-Complaint is SUSTAINED, with leave to amend. Smith may file a First Amended Cross-Complaint within twenty (20) days of the Court’s final ruling. Parikh’s Motion to Strike is DENIED.
1. Demurrer to Cross-Complaint
A. Third Cause of Action to Expel Parikh from the “Partnership”
The Code states that “[e]xcept as otherwise provided in subdivision (b), the association of two or more persons to carry on as co-owners a business for profit forms a partnership, whether or not the persons intend to form a partnership.” (Corp. Code §16202(a).) Subsection (b) states that “[a]n association formed under a statute other than this chapter, a predecessor statute, or a comparable statute of another jurisdiction is not a partnership under this chapter.” (Corp. Code §16202(b); see also, Fredianelli v. Jenkins, N.D.Cal.2013, 931 F.Supp.2d 1001 [“Whether a partnership exists depends primarily on the intention of the parties, determined from the terms of the parties’ agreement or from the surrounding circumstances” and “[i]t is immaterial if the parties do not designate their relationship as a partnership or if they do not know that they are partners, for intent may be implied from their acts. Ordinarily, the existence of an actual partnership is evidenced by the right of the respective parties to participate in the profits and losses of the business, the contribution by the partners of either money, property or services and some degree of participation by the partners in the management and control of the business.”], citing, In re Lona, (Bankr.N.D.Cal.2008) 393 B.R. 1, 14.) Generally, the question whether a partnership exists is primarily one of fact, to be determined by the trier of fact from the evidence and inferences to be drawn therefrom. (See, Nelson v. Abraham (1947) 29 Cal.2d 745, 750; see also, Kaljian v. Menezes (1995) 36 Cal.App.4th 573, 586.)
Here, the only apparent factual allegation that is arguably related to the existence of a “partnership” is that “[o]n February 1, 2018 Smith entered into a lease with the landlord for 950 Piner Road Units, C, G, D and H; PARIKH also signed the lease. On or March 1, 2018 both Smith and Parikh subleased the aforementioned premises to Piner.” (Cross-Complaint at ¶19.) Thereafter, Smith makes only conclusory allegations regarding the existence of a partnership, “as that term is defined,” but fails to allege any facts to show the present existence of a partnership; what the “business” of the partnership is; what the property or profits of the partnership include; or whether the partnership has dissolved or otherwise ended. Thus, Smith has failed to allege sufficient facts to state a valid cause of action under the Corporations Code. (See, Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 [“the general rule that statutory causes of action must be pleaded with particularity.”]; see also, Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5 “[Where] recovery is based on a statutory cause of action, the plaintiff must set forth facts in his [or her] complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate.”].)
B. Fourth Cause of Action to Expel Parikh and Doe Defendants from the Board
The Corporations Code states that “[t]he superior court of the proper county may, at the suit of shareholders holding at least 10 percent of the number of outstanding shares of any class, remove from office any director in case of fraudulent or dishonest acts or gross abuse of authority or discretion with reference to the corporation and may bar from reelection any director so removed for a period prescribed by the court.” (Corp. Code §304.) In the Cross-Complaint, Smith alleges that “[a]s a direct result of the fraud by Parikh that is articulated in this cross-complaint Cross Defendant Parikh became a holder of the majority of seats on Piner’s Board of Directors and Parikh appointed others as members of the Board…and they are identified as Does in this cross-complaint.” (Cross-Complaint at ¶53.) Smith continues that “[b]ased on the facts plead in this verified cross-complaint Parikh committed fraudulent or dishonest acts or gross abuse of authority or discretion with reference to Piner.” (Id. at ¶54.) Thus, Smith asks the Court to remove Parikh and the unnamed Doe Defendants from Piner’s Board of Directors.
This cause of action also fails to state sufficient facts for several reasons. To start, the Verified Cross-Complaint first alleges that Smith (not Parikh) is the “rightful owner of 100% of the stock in Piner and thus holds all seats on the Board of Directors of Piner.” (Cross-Complaint at ¶3.) (emphasis added.) Thereafter, to support the cause of action to remove Parikh as a director, Smith makes a contradictory allegation that “[a]s a direct result of the fraud by Parikh…Parikh became a holder of the majority of seats on Piner’s Board of Directors and Parikh has appointed others as members of the Board of Directors for Piner and they are identified as Does in this cross complaint.” (Id. at ¶53.) While Smith may plead inconsistent legal theories in a verified complaint, he is not entitled to allege “contradictory or conflicting” facts. (See, Alfaro v. Cmty. Hous. Improvement Sys. & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1381-1382 [“A plaintiff may plead inconsistent counts or causes of action in a verified complaint, but this rule does not entitle a party to describe the same transaction as including contradictory or antagonistic facts.”], citing, Faulkner v. California Toll Bridge Authority (1953) 40 Cal.2d 317, 328; see also, Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 886.) Smith’s allegations that he “holds all seats on the Board of Directors” and that “Parikh became a holder of the majority of seats on Piner’s Board of Directors” are contradictory and irreconcilable.
Additionally, the Court intends to take judicial notice of Piner’s Statement of Information filed with the Secretary of State’s Office on March 22, 2019. (See, Evid. Code §452(c); see also, Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518.) This document shows that as of March 22, 2019, i.e., less than one month before Smith’s Cross-Complaint was filed, Piner’s “directors” were Derek Thiel; Dale Kershner; and Smith. Thus, Parikh was not a “director” at the time the Cross-Complaint was filed. (See, Starbird v. Lane (1962) 203 Cal.App.2d 274, 258 [“Manifestly section 811 [which is the prior version of section 304] is designed to provide a remedy for the wrongdoing of presently acting directors.”].) In order to expel Parikh from Piner’s Board of Directors, it must at least be alleged that he was a “presently acting director” at the time the Cross-Complaint was filed. Further, while Smith is correct that the Code allows the Court to remove a director from office and “bar from reelection any director so removed,” Smith has not cited any authority that would allow the Court to bar a former director from reelection who was not previously removed from office under this statute. The only case other than Starbird which Smith cites, i.e., Atkins v. Hughes (1929) 208 Cal. 508, is irrelevant and inapposite to this case.
With respect to “other members of the Board” who Smith has named only as Doe Defendants, Smith has not stated sufficient facts to show these Doe Defendants committed “fraudulent or dishonest acts or gross abuse of authority or discretion with reference to the corporation.” (See, Starbird, supra, 203 Cal.App.2d at 259 [referencing the “well-established rule that…general charges of fraud, conspiracy and bad faith on the part of corporate directors are insufficient in the absence of allegations of specific facts adequate to show the basis for the general charges.”], citing, Findley v. Garrett (1952) 109 Cal.App.2d 166, 176-177.) Indeed, in Starbird, the Court of Appeal found that the “instant complaint does not state a cause of action against the three present directors, since it does not plead any acts or conduct on their part which could be said to constitute fraudulent or dishonest acts or gross abuse of authority or discretion with reference to the corporation.” (Starbird, supra, 203 Cal.App.2d at 257.) The Court continued that “[t]o warrant interference by a court in favor of minority stockholders ... a case must be made out which plainly shows that such action is so far opposed to the true interest of the corporation itself as to lead to the clear inference that no one thus acting could have been influenced by any honest desire to secure such interest, but that he must have acted with an intent to subserve some outside purpose, regardless of the consequences to the company.” (Ibid, quoting, Fairchild v. Bank of America (1961) 192 Cal.App.2d 252, 257.) Here, the names of the respective members of the Board of Directors are known or available and therefore, Smith’s conclusory allegations of fraud and bad faith against “doe defendants” are not sufficient.
Finally, Smith argues that Parikh has appointed “puppets of his” to Piner’s board, who are identified as Doe Defendants. However, Smith has not included any allegations to indicate how Parikh is exercising any control over these directors. Similar allegations of “control” over the board were made in Starbird and the Court upheld the dismissal in part on the grounds that there was “no allegation of any fact to indicate how such control [was] being exercised” and “no allegation of any facts to show by what means or in what manner” it was “prevailed” on the board of directors to take any action. (Starbird, supra, 203 Cal.App.2d at 258-259.) The same is true here with respect to Smith’s allegations against the Doe Defendants.
2. Motion to Strike
In his motion, Parikh first seeks to strike Smith’s prayer for a preliminary and permanent injunction “prohibiting cross defendants from interference with Smith’s duties as President and Chief Executive Officer of Piner Processing Inc. and prohibiting PARIKH, and any other person who has gained that authority as a result of PARIKH’S fraud, from participating as a member of Piner’s Board of Directors.” (See, Cross-Complaint at 15:10-14.) Parikh contends that Smith’s Cross-Complaint concedes that Smith was removed as CEO and therefore, has no “duties” to interfere with. Additionally, the motion argues that because Parikh is no longer a member of the Board of Directors, there is no need for an injunction prohibiting Parikh from participating as a member of the Board.
Second, the motion seeks to strike all references in the Cross-Complaint to the law firm Solomon, Ward, Seidenwurm & Smith, LLP. Parikh contends that all references to the Solomon law firm are improper, irrelevant and are merely an attempt to disparage the firm’s reputation. Specifically, the motion seeks to strike the following allegations from the Cross-Complaint:
· On or about December in the year 2018, after Korer had already drafted the stock transfer agreement giving PARIKH 75% of Piner stock, Smith also discovered that Korer in fact was not licensed to practice law in California. Smith communicated to Korer and PARIKH that he had uncertainty about the validity of the corporate documents drafted by Korer in that they were drafted by an unlicensed attorney. At the direction of PARIKH, Korer then associated with California licensed attorneys at the law firm of Solomon, Ward, Seidenwurm & Smith, LLP (“Solomon”). PARIKH, the Solomon law firm and Korer all represented falsely that said association was sufficient to allow Korer to continue to practice law in California. While Korer was associating with the Solomon law firm, Korer continued to practice law in California without a license and continued to advise Smith and PARIKH and without disclosing to Smith that he, Korer, was in actuality advocating for PARIKH’S interest only and disguising that fact by representing to Smith that he, Korer, was representing the interest of Smith, Parikh and Piner. Korer did so with the knowledge and assistance of the Solomon law firm who knew or should have known that Korer was practicing law without a license and was breaching his fiduciary duty to Smith and was practicing law in California in a manner contrary to California Rules of Court 9.46.
· While Korer was practicing law in California without a license and while acting as an agent of the Solomon law firm, and at the direction of PARIKH, Korer negotiated the buyout of Jess Smith’s interest in Piner Processing. Korer then presented to Smith a shareholder agreement wherein PARIKH received absolute control over Piner and its financial decisions including allowing PARIKH to hold Board Member meetings without any notice; Smith refused to sign this agreement.
(Cross-Complaint at ¶¶35-36.)
In his opposition, Smith argues that he has alleged sufficient facts to justify injunctive relief and that entitlement to such relief depends on the evidence presented at trial. Additionally, Smith contends that the facts related to the Solomon law firm are relevant to his cause of action for rescission and his allegations of fraud.
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436(b).) The trial court has broad discretion to grant or deny a motion to strike. (Ibid; see also, Bank of Haywards v. Kenyon (1917) 32 Cal.App. 635, 636.)
Here, the Court exercises its discretion to deny Parikh’s motion to strike. At this stage of the litigation and considering the allegations and causes of action asserted, Smith’s prayer for injunctive relief is permissible and the facts alleged related to the Solomon law firm are sufficiently relevant. Accordingly, the motion to strike is denied.
Parikh’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with California Rules of Court, Rule 3.1312.
*This is the end of the Tentative Rulings*