Opposition_to_motion_to_strike

Motion

Cal. Super. - 2nd Dist.December 20, 2019

Electronically FILED b 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 277 28 Talin V. Yacoubian (State Bar No. 169439) Stewart J. Powell (State Bar No. 175226) YACOUBIAN & POWELL LLP 725 South Figueroa St. Suite 1750 Los Angeles, California 90017 Telephone: (213) 955-7145 Facsimile: (213) 955-7146 Attorneys for Plaintiff HENRIK SHAHVERDIAN HENRIK SHAHVERDIAN, an individual; Plaintiffs, VS. OVAKIM H. OVAKIMIAN, an individual, and DOES 1 through 100, inclusive Defendants. Complaint as follows. Superior Court of California, County of Los Angeles on 04/14/2020 10:43 AM Sherri R. Carter, Executive Officer/Clerk of Court, by A. Miro,Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES — CENTRAL DISTRICT STANLEY MOSK COURTHOUSE CASE NO.: 19STCV45999 [Assigned to Hon. Richard J. Burdge] PLAINTIFF HENRIK SHAHVERDIAN’S OPPOSITION TO DEFENDANT OVAKIM H. OVAKIMIAN’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT Hearing Date: April 27, 2020 Hearing Time: 8:30 am Dept.: 37 [Opposition to Defendant’s Demurrer and Objection to Defendant’s Request for Judicial Notice Filed Concurrently Herewith] Complaint Filed: December 20, 2019 Plaintiff, HENRIK SHAHVERDIAN (“Plaintiff”), hereby submits his Opposition to Defendant OVAKIM H. OVAKIMIAN'’s (“Defendant”) Motion to Strike portions of Plaintiff’s PLAINTIFF HENRIK SHAHVERDIAN’S OPPOSITION TO DEFENDANT OVAKIM H. OVAKIMIAN’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 277 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Henrik Shahverdian’s (‘“Plaintiff”)’s claim for punitive damages against Defendant Ovakim H. Ovakimian (“Defendant”) is wholly supported by the specific allegations in Plaintiff’s Complaint. The Complaint properly alleges that Defendant Ovakimian defrauded Plaintiff and induced Plaintiff to enter into a Stock Purchase Agreement and purchase Defendant Ovakimian’s shares by intentionally misrepresenting to, and concealing from, Plaintiff his true intentions, that he had no intention to honor his agreement to reimburse Plaintiff for any cap payments due to Medicare up to the date of Closing-March 30, 2018. Indeed, as alleged, Defendant’s conduct gives rise to punitive damages and Defendant’s motion to strike should be denied. II. ARGUMENT A. LEGAL STANDARD Motions to strike are disfavored. In ruling on a motion to strike, the allegations in the complaint are considered in context and presumed to be true. If the defect in the complaint is correctible, the judge will almost certainly grant leave to amend on terms if deems proper. Indeed, failure to do so is an abuse of discretion. Code of Civil Procedure §472a(d), Vaccaro v. Kaiman (1988) 63 CA4™ 761, 768-769. Therefore, as long as the defect is correctible, an amended pleading will be permitted. Grieves v. Sup. Ct. (Fox) (1984) 157 CA3d 159, 168. As with demurrers, “(i)n the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Code of Civil Procedure, §452. As the California Supreme Court stated in Garcia v. Superior Court (1990) 50 Cal.3d 728, 732: “We assume that the complaint's properly pleaded allegations are true and give the complaint a reasonable interpretation by reading it as a whole 2 PLAINTIFF HENRIK SHAHVERDIAN’S OPPOSITION TO DEFENDANT OVAKIM H. OVAKIMIAN’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 277 28 and all its parts in their context.” Thus, the general rule with respect to motions to strike is that “purely technical objections ... receive short shrift.” Id. Furthermore, overruling the motion to strike also comports with California policy which does not require a plaintiff to delay filing an action until Plaintiff possesses all the “specific facts” necessary to prove his or her case. A claim accrues under California law when Plaintiff “has a suspicion of wrongdoing; discovery will uncover the specific facts to establish the claim. Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110. B. PLAINTIFF HAS ALLEGED SUFFICIENT FACTS ON WHICH TO RECOVER PUNITIVE DAMAGES AGAINST DEFENDANTS In order to survive a motion to strike an allegation of punitive damages, a plaintiff must plead the ultimate facts showing an entitlement to relief. Clauson v. Sup. Ct (Pedus Services, Inc. (1998) 67 Cal. App. 4th 1253, 1255; Blegen v. Superior Court (1981) 125 Cal. App. 3d 959, 963. In ruling on a motion to strike, a trial court considers the factual allegations in a complaint in context and presumes them to be true. Clauson, 67 Cal. App. 4th at 1255. Punitive damages are available when “oppression, fraud, or malice” is proven by clear and convincing evidence. Civ. Code § 3294(a). Malice means that the defendant intended to cause injury to the plaintiff, or that defendant’s conduct was “despicable” and carried on with a willful and conscious disregard of the rights and safety of others. Civ. Code § 3294(c)(1). “Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Civ. Code § 3294(c)(2). “Despicable conduct” is conduct that is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Scott v. Phoenix Schools, Inc. (2009) 175 Cal. App. 4th 702, 715. Defendant Ovakimian does not dispute that Plaintiff’s cause of action for fraud warrants a claim for punitive damages. Defendant Ovakimian merely contends that no facts are pled that support a finding of despicable conduct, malice, oppression or fraud against 3 PLAINTIFF HENRIK SHAHVERDIAN’S OPPOSITION TO DEFENDANT OVAKIM H. OVAKIMIAN’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 277 28 Defendant that warrant an award of punitive damages, and that Plaintiff merely states blanket and conclusory allegations in the Complaint. This is simply not true. Plaintiff has alleged facts to demonstrate the fraudulent conduct of Defendant. Plaintiff specifically alleges in his Complaint that prior to entering into the Agreement, Defendant Ovakimian, through his agent, Nshan Ohanyan, promised and agreed in writing that he will be responsible for any and all cap payments due to Medicare up to the date of Closing-March 30. without the intention of adhering thereto. (Comp., 38.) Plaintiff further alleges that Defendant had no intention of reimbursing Plaintiff (Comp., 39); that Defendant, through his agent, Nshan Ohanyan, intentionally misrepresented and concealed from Plaintiff the nature of his intentions; that Defendant falsely negotiated the agreement, to be ostensibly for Plaintiff's benefit, thus inducing Plaintiff to purchase his shares of stock of Unity First; and that Defendant knew about obligations due to Medicare. (Comp., 40, 41.) Plaintiff reasonably relied on Defendant’s statements and was ignorant of the falsity of the representations made by Defendant, and was damaged. (Comp., 42, 43.) Making a promise without intent to keep it, and saddling Plaintiff with hundreds of thousands of dollars which must be paid to a government agency is malicious. C. PLAINTIFF IS ENTITLED TO ATTORNEY’S FEES PURSUANT TO THE CONTRACT Where the recovery of attorney fees is authorized by a contract, the agreement will generally be subject to Civil Code Section §1717. California Civil Code section 1717 states that, “[i]n any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract. . . shall be entitled to reasonable attorney’s fees and costs. (Civ. Code, §1717, subd. (a).) A prevailing party is entitled to both the costs of suit as well as attorneys’ fees if the dispute involves a contract with an attorneys’ fees provision. (Code Civ. Proc., § 1032, 1717; 4 PLAINTIFF HENRIK SHAHVERDIAN’S OPPOSITION TO DEFENDANT OVAKIM H. OVAKIMIAN’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 277 28 Biren v. Equality Emergency Med. Grp. Inc. (2002) 102 Cal. App.4™ 125, 139; see also In Re Marriage of Sherman (1984) 162 Cal. App.3d 1132, 1136.) Section 1032 of the Code of Civil Procedure is the “fundamental authority” for awarding costs in civil actions. (Scott Co. v. Blount, Inc. (1999) 20 Cal.4™ 1103, 1108.) Under that section, the prevailing party is entitled to costs as a matter of right, except as otherwise provided by statute. (Code Civ. Proc., § 1032(b).) Here, Plaintiff is entitled to recover fees as a matter of law and pursuant to the Stock Purchase Agreement. Paragraph 13 (h) of the Stock Purchase Agreement states “[i]n the event of any action at law or suit in equity in relation to this Agreement, the prevailing party in such action or suit shall be entitled to receive its attorneys’ fees and all other costs and expenses of such action or suit.” (Comp., at 410; Exhibit “A.”) III. CONCLUSION Based on the foregoing, Plaintiff’s punitive damages allegations and request for attorneys’ fees are wholly permissible under California law, therefore, Defendant Ovakimian’s motion to strike should be denied. Dated: April 14, 2020 Respectfully submitted, Yacoubian & Powell, LLP gal RD Talin V. Yacoubian Attorneys for Plaintiff HENRIK SHAHVERDIAN 5 PLAINTIFF HENRIK SHAHVERDIAN’S OPPOSITION TO DEFENDANT OVAKIM H. OVAKIMIAN’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 277 28 PROOF OF SERVICE STATE OF CALIFORNIA ) ) SS. COUNTY OF LOS ANGELES ) I, Nara Kpryan, declare as follows: I am employed by Yacoubian & Powell LLP, 725 South Figueroa Street, Suite 1750, Los Angeles, California 90017. I am over the age of 18 years and not a party to the within action. On April 14, 2020, I served the foregoing document described as PLAINTIFF HENRIK SHAHVERDIAN’S OPPOSITION TO DEFENDANT OVAKIM H. OVAKIMIAN’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT on the interested parties in this action by placing a true copy thereof in a sealed envelope addressed as follows: Art Kalantar, Esq. Law Offices of Art Kalantar 9595 Wiltshire Blvd., Suite 900 Beverly Hills, Ca 90212 art@kalantar.law Henrik Mosesi, Esq. Law Offices of Henrik Mosesi 1540 W Glenoaks Blvd., Suite 206 Glendale, CA 91201 hmosesi @ gmail.com (Attorneys for Defendant Ovakim H. Ovakimian) X (BY MAIL) as follows: I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation or postage meter date is more than one day after date of deposit for mailing in affidavit. X (BY ELECTRONIC SERVICE) I caused such document(s) to be delivered electronically to the email address(es) listed above. 1 PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 277 28 X (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed at Los Angeles, California on April 14, 2020. wd 2 Nara Kpryan PROOF OF SERVICE