Peter Geddes Md vs. Ko'S Anaheim Professional Inc

Opposition

Cal. Super. - 4th Dist.July 9, 2013

N O O O o r A W N © © 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 bf 28 James G. Damon (SBN 115781) Daniel S. Kippen (SBN 211582) VOSS, COOK & THEL LLP 895 Dove Street, Suite 450 Newport Beach, California 92660-6310 Telephone: (949) 435-0225 Stuart Esner (SBN 105666) Esner, Chang & Boyer 234 E Colorado Blvd., Suite 975 Pasadena, CA 91101-2262 Telephone: (626) 535-9860 Attorneys for Plaintiffs ELECTRONICALLY FILED Superior Court of California, County of Orange 05/08/2017 at 02:53:00 Ph Clerk of the Superior Court By Sarah Loose Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CIVIL COMPLEX CENTER ELAHEH FARSHIDI, M.D.; ANAHEIM FAMILY MEDICAL, INC.; STEVEN GOODMAN, D.D.S.; JOSEPH H. GREINER, D.D.S.; JEONG OK LEE M.D.; NEW LIGHT MEDICAL GROUP, INC., Plaintiffs, Vs. KO’S ANAHEIM PROFESSIONAL, INC; ROBERT KO, Defendants. N r ’ N r ? ’ N r ’ N o r ’ Na or ?’ N r N a N o r N o N o N e N a N a N a N e N a N e N e N e N e N e N e N e ” N e N e N e S n CASE NO. 30-2013-00661277-CU-BC-CIC Assigned to Hon. William D. Claster, Dept. CX 102 PLAINTIFFS’ OPPOSITION TO DEFENDANT ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT [FILED CONCURRENTLY WITH OMNIBUS DECLARATION OF JAMES G. DAMON IN SUPPORT OF PLAINTIFFS’ OPPOSITIONS TO DEFENDANTS’ MOTIONS FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND NEW TRIAL, WITH EXHIBITS AND REQUEST FOR JUDICIAL NOTICE] Date: May 19, 2017 Time: 9:00 a.m. Dept.: CX 102 PLAINTIFFS’ OPPOSITION TO DEFENDANT ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT © 0 N N O O Oo A W O N a - e k Ae ea l w N N ~ ~ OO 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS L FACTUAL AND LEGAL BACKGROUND ....ccccesueresasressesassssassssassssasassssasssssssasssses 3 II. THEAINOY STANDARD co ciossmnsirronsseassssenssssassresssessessessonassasssasenssesssoassssassnassoneasses 1 III. THERE IS SUBTANTIAL EVIDENCE SUPPORTING THE VERDICTS AGAINST DEFENDANT KO INDIVIDUALLY .usnsssssssssssosssessnvassenssnssssnsassoesassasss 3 A. Since Defendant Ko Personally Engaged In Intentional And Willful Conduct, Yexsonal Liability 1s ADDPLapriate soimmmimmassnsiammmmnmisenmasim ia 3 B. Contrary To Defendant Ko’s Argument, Michaelis Supports Imposing Enc aaL LAR I LN EE cmsnwmmrimanmisarmmsaesmesssmmmn ramsey 6 3 Defendant Ko’s Actions With Malice, Oppression Or Fraud Support Personal LIADIHEY suussmsonmursinnencosnnmovioesssm enemies oes amis mains 11 D. Defendant Ko Intentionally Interfered with the Economic Relations Between Plaintiff Lee And/Or New Light Medical Group And Their Patients .................. 12 E. Plaintiffs’ Nuisance Claims Support Judgment Against Defendant Ko Individually Irrespective Of Any Alter Ego Finding.........c.ccceereeeeereerersersarsecsansnens 13 IV. THERE IS CLEAR AND CONVINCING EVIDENCE THAT DEFENDANT KO ACTED WITH MALICE, FRAUD OR OPPRESSION. ......ccccoeervrueruenensanaens 14 Va ER INL RT ENIN consonance om A FASC SAA SRSA EARS FRE 15 PLAINTIFFS’ OPPOSITION TO DEFENDANT ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT © oO o N N oO O O Hh O N N N O N N D N D ND DN DN NM DN DN @ @ &a eo =a ca da m d e d aa o x oo ~N oO Oo A W O O N 2 O O © 0 0 N N oO o O DMA Ww N N ~~ Oo TABLE OF AUTHORITIES Cases Asahi Kasei Pharma Corp. v. Actelion Ltd. (2013) 222 Cal. App.4th 945.......c.covvvinnnnnnnnnn. 6 Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785 ......ccevvvvvvcvniniinninnnns 2 Fountain Valley Chateau Blanc Homeowner's Assn. v. Department of Veterans Affairs (1998) 07 TCALATDI Th cv commmrsmmmasmmmnsospomensamsssosmaesimpssemssssassssisssmss fesse ares est 2142 8AM EARS 1 Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490..........ccovevviinvviriieinennen. passim Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497..........ccocvvvrvvinininninnnnsssenenne 2 Klein v. Opkandg Raiders, Led, (1989) 211 CALAPP.3d 07 sossanrmmonvsamsmsmssiaason 8 Krusiv. Bear, Stearns & Co. (1983) 144 CALABP. 3A 609 .......ommmsmmsenssmmosenssscasnrnissssasssiisossisisios 12 MeClaryv. Diode (1951) VETTE ALED. TB .cosmmmmisasissssscantmsmioss sam sasssm evsss 12,13 Mercer v. Dunscomb (1930) 110 Cal. App. 28 uiomvssusmpmvascmemmsmvasasivemasssnasrmmesiss 12.13 Michaelis v: Benavides (1998) G1, Cal. App. 4th 681 nwusmmmmnnsuaussiwasspspmmose passim Mock v. Michigan Millers Mut. Ins. Co. (1992) 4 Cal. App.4th 306..........cocevvivinenninininnennnn. 15 Moore v. American United Life Ins. Co. (1984) 150 Cal. App.3d 610......ccccoevvivuviniiviieniiiniiinnnns 3 PMC, Ine, v. Kadisha (2000) °78 Cal App Ath 1308...vcmmmsmmmnmmmsavamsmssomensssmmssmonsresas 14 Self-Insurers’ Security Fund v. ESIS, Inc. (1988) 204 Cal. App.3d 1148.......c.ccvvviniiiinniniiniinnnn 5 Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon& Gladstone (2003) 107 Cal. App.4th 54..7 Soules. Ceadddam, ig. T1991 VCR APEAR SR). cnn mmmonummsismsrsmsssssssissisamissomsmsmsosmns 6 Spabnv, Guild Industries Corp; (1979) 94 Cal. ApP.3d.-14 cc cmmmvmmmisnmsanssmmmsssnmnssssmsiss 14 Stoiber v. Honevehuek (1980) 101 Cal, App.3d.903 cauvmvwvamsmmmsamsmammesemsvssmswmessssmons 6 Stirvesv, Charles IL. Harvey, hie, (1958) 165 Cal.App.2a 300... cawsmiinninrsims mmm 6 Teitel v. First Los Angeles Bank (1991), 231 Cal. App.3d 1593 .....cocviiininiiiniiiiniiiiniicine, 2 Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal. App.4th 1269......ccccoovviiviiiiiiiiviiiiniiiciniene 15 Turner-v: Anheuser-Busch, Inc, (1994) 7 Cal #th 1238 iiinmmsmmnsanmmasmsmssmvomsssasso 6 United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586 .........ccoceeviiviininiinnnns 3 Vujacich v. Southern Commercial Ca. (1913) 21 CalLAPD. 439.....c0cneumsnssosussrsnsssisnssissesnssiss 12:19 Weiss v. Washington Mutual Bank (2007) 147 Cal. App.4th 72 ........cccovvviiininninnninininicenne 9 Wait v. Union Mortgage Co. {1979), 28 Cal. 3d 7713 nsiasanmmmmnssoanosmmmmnose id Federal Cases Nasrawi v. Buck Consultants, LLC, 713 F.Supp.2d 1080 (E.D. Cal. 2010).......cccccevvinvnviririninnnnn. 5 Other Authorities 188 Amur 2d, Corporations, § 1829 (1985) suum ss ome masses 13 PLAINTIFFS’ OPPOSITION TO DEFENDANT ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT OO © 00 ~N O O OO Hh Ww W O N KR NN O N RN O B B KB MM N M NN &a &8 4 & & 0 «Sf ua = a a = X 8 0 N N oO O0 0 bh O W N 2 O O O O 00 N O O O W L ; N a MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL AND LEGAL BACKGROUND Defendant Robert Ko moves for INOV arguing that as a matter of law there is no basis to impose liability against him in his individual capacity. To make this argument Defendant Ko simply disregards much of the evidence which supports the jury’s finding that he personally engaged in despicable tortious conduct over many years that formed the basis for the verdict against him and he also ignores the law recognizing the potential individual liability of corporate officers such as Defendant Ko. This Court has already largely rejected the same arguments previously made by Defendant Ko. Defendant Ko simply chalks those arguments up to the supposed emotion of the trial. That is not the case. Rather, when the law and the facts are fully and properly analyzed it becomes apparent that there is overwhelming evidence supporting the jury’s finding that Defendant Ko acted willfully and created conditions or knowingly permitted conditions to exist that were harmful to health and safety of Plaintiffs, their staff and patients; or indecent or offensive to the senses; or an obstruction to the free use of the offices of Plaintiffs.’ The jury also properly found that Defendant Ko acted with malice, oppression, or fraud both individually and while acting on behalf of Defendant Ko’s Anaheim Professional, Inc. (“KAP”). This conduct by Defendant Ko amply supports his personal liability. Simply put, Defendant Ko’s JNOV motion is utterly meritless and should be denied in full. IL. THE JNOV STANDARD All evidence supporting a verdict is presumed true when deciding a motion for JNOV: “Conflicts in the evidence are resolved against the moving defendant and in favor of the plaintiff; all reasonable inferences to be drawn from the evidence are drawn against the moving defendant and in favor of the plaintiff.” Fountain Valley Chateau Blanc Homeowner's Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 750 (emphasis in original). As stated in Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510: 1 “Plaintiffs” refers to Plaintiffs Elaheh Farshidi, M.D.; Anaheim Family Medical, Inc.; Steven Goodman, D.D.S.; Joseph H. Greiner, D.D.S.; Jeong Ok Lee M.D.; and New Light Medical Group, Inc. 1 PLAINTIFFS’ OPPOSITION TO DEFENDANT ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT ) o> o h W N 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “The trial court's discretion in granting a motion for judgment notwithstanding the verdict is severely limited.” (Teitel v. First Los Angeles Bank (1991) 231 Cal. App.3d 1593, 1603.) “The trial judge's power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict [citations]. The trial judge cannot reweigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.]” A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.“ [Citation.]' ” (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 877-878, quoting Hauter v. Zogarts (1975) 14 Cal.3d 104, 110-111 [120 Cal.Rptr. 681, 534 P.2d 377].) When reviewing the validity of a motion for judgment notwithstanding the verdict, an appellate court must resolve any conflict in the evidence and draw all reasonable inferences therefrom in favor of the jury’s verdict. Teitel v. First Los Angeles Bank, supra, 231 Cal.App.3d at 1603. In Teitel, the court of appeal concluded that the motion for judgment notwithstanding the verdict should have been denied by the trial court because there was substantial evidence to support a punitive damages verdict against the defendant bank. /d. "Punitive damages must be based on a showing of ‘oppression, fraud, or malice.' (Civ. Code, § 3294.) To be liable for punitive damages, the defendant must act "with the intent to vex, injure, or annoy, or with a conscious disregard of the plaintiff's rights. [Citations.]"" These elements may be proven directly or by implication. [Citations.]" Teitel, supra, 231 Cal.App.3d at 1603 citing Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 792 [183 Cal. Rptr. 810, 647 P.2d 86], italics deleted.) Additionally, "the jury could also properly find that its award of punitive damages was necessary not simply to punish defendant for past acts but also to get defendant to discontinue its deceptive practices.... The jury could ... reasonably conclude its award of punitive damages was necessary in order to get defendant's attention." Teitel, supra, 231 Cal.App.3d at 1603 (citing Moore v. American United Life Ins. Co. (1984) 150 Cal.App.3d 610, 638). 1 1 1 2 PLAINTIFFS’ OPPOSITION TO DEFENDANT ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT OO OW 0 N N O O Oo Hh W O N a N O N KN O N NN MN MN MN BN aS & aoa e y = f we @ je oe e a e x © N N O O OO A W N A O © 0 N O O O MA O N A III. THERE IS SUBSTANTIAL EVIDENCE SUPPORTING THE VERDICTS AGAINST DEFENDANT KO INDIVIDUALLY Defendant Ko argues incorrectly that the jury’s verdicts allegedly fail to follow the law governing individual liability of a corporate officer such as Defendant Ko for engaging in conduct with malice, oppression, or fraud while acting on behalf of Defendant KAP with liability for resulting damages and punitive damages pursuant to Civil Code section 3294(b). Since the applicable law and substantial evidence together with reasonable inferences drawn therefrom support the jury’s verdicts, the INOV motion should be denied. A. Since Defendant Ko Personally Engaged In Intentional And Willful Conduct, Personal Liability Is Appropriate. Defendant Ko initially claims that he cannot be liable based on the contracts signed by him on behalf of the corporation unless he purported to bind himself. (Ko JNOV 2.) To support this argument, Defendant Ko cites United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 595. However, Defendant Ko’s liability is not premised on any contract claim. Instead, Defendant Ko was found liable for causing a nuisance and engaging in conduct with malice, oppression, or fraud. In Haidinger-Hayes the Court stated: "Directors or officers of a corporation do not incur personal liability for torts of the corporation merely by reason of their official position, unless they participate in the wrong or authorize or direct that it be done. They may be liable, under the rules of tort and agency, for tortious acts committed on behalf of the corporation." 1 Cal.3d at pp. 594-595 (citation omitted; emphasis added). As subsequently stated by the Supreme Court: “[A]n officer or director will not be liable for torts in which he does not personally participate, of which he has no knowledge, or to which he has not consented. ... While the corporation itself may be liable for such acts, the individual officer or director will be immune unless he authorizes, directs, or in some meaningful sense actively participates in the wrongful conduct.” Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 503-504 (emphasis added). Under this standard, proof of a corporate officer’s personal participation in the wrongful conduct is sufficient to impose personal liability. There is ample evidence of that personal participation by Defendant Ko here. 3 PLAINTIFFS’ OPPOSITION TO DEFENDANT ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT w oO © 00 N N oOo Oo 9b » 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In 2002, Defendant Ko purchased the medical building located at 1801 West Romneya Drive in Anaheim (“Building”) through Defendant KAP. RT 1455-1456.2 Defendant Ko and his wife, Nancy Ko, are the sole shareholders and directors of KAP. RT 1456. Defendant Ko is president of KAP. RT 1467. As CEO of the landlord, Defendant Ko understood that he was obligated to maintain and provide heating, ventilation and air conditioning to the tenants including Dr. Farshidi. RT 1457-1458. In 2007, Defendant Ko took over management of the Building which provided him with another source of income. RT 1459. In 2009, Defendant Ko and Defendant KAP (collectively, “Defendants™) collected a management fee of $101,330.17. RT 1460. Ko’s Property Management managed the Romneya building under Defendant Ko’s direction. RT 1469. In April of 2008, the tenants, represented by Drs. Goodman, Greiner and Farshidi among others, sent a certified letter to Defendant Ko (RT 86:14-87:11; Ex. 606-1) in part addressing the constant malfunction of the air conditioning resulting in interior temperatures of 95 degrees. RT 91:26-92:5. Defendant Ko recalled that his property manager, Christine Kang, advised him that the Building was without air conditioning but he did not know if the problem was fixed. RT 1464. Additionally, elevators were malfunctioning such that one, two or sometimes all three of the elevators would be nonfunctional. RT 93:13-19. The property manager, Ms. Kang, agreed that the tenants’ letter stated legitimate grievances. RT 96:26-97:12. The air conditioning problems continued up through the trial. RT 99:15-16. In testimony on February 7, Defendant Ko admitted to using the KAP bank account to pay for items related to his other buildings, and he testified that it was his standard practice to use the Building’s bank account to pay for air conditioning expenses from his other properties. RT 1620:19-1622:9; Exh. 941-1 to -3. Evidence also showed that the cost of such work at his other properties was then placed on the general ledger for the Building, which was then used to 2 Evidence cited as “RT” refers to the Reporter’s Transcript. Plaintiffs note that the pagination restarted for the March 3 and March 6 transcripts; accordingly, Plaintiffs include the date when citing to such transcripts. The cited transcript pages appear in sequential order as Exhibit “A” to the concurrently filed Declaration of James G. Damon. The cited trial exhibits are referred to as “Exh.” herein and appear in sequential order in Exhibit “B” to the declaration. 4 PLAINTIFFS’ OPPOSITION TO DEFENDANT ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT ao O0 0 A W N 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 calculate Plaintiffs’ CAM charges. RT 2474:13-2497:1. This was fraud, as Defendants sent the CAM statements to Plaintiffs as though they only presented charges incurred at the Building. Defendant Ko personally delivered the fraudulent CAM reconciliation statements to Dr. Goodman. See Defendants’ Exh. “U” at 223:16-21 These facts served to easily distinguish the cases Defendant Ko cites to argue that there could not be any personal liability. In Weiss v. Washington Mutual Bank (2007) 147 Cal.App.4th 72, 78 n.4, the Court simply found that the plaintiff borrowers’ claims against the defendant bank and its loan officer were preempted by the federal Home Owners’ Loan Act and the plaintiffs did not allege that the defendant loan officer committed fraud or participated in any other intentional tortious acts. Neither of these holdings applies here. Similarly, in Self-Insurers' Security Fund v. ESIS, Inc. (1988) 204 Cal.App.3d 1148, 1163, the Court found that there was no actionable negligence or breach of statutory duty by the corporate officer in his personal capacity. The court explained that personal liability could not be based on the officer’s negligence in signing annual reports as required by the applicable regulations governing the corporation he worked for. Id. at 1163. The same general fact pattern was addressed in Nasrawi v. Buck Consultants, LLC, 713 F.Supp.2d 1080, 1088 (E.D. Cal. 2010), where the district court found that the proffered evidence concerned only the individual defendant’s corporate duties as an actuary/employee who performed his corporate duties in the course and scope of his corporate employment and was not an owner, director or majority shareholder of the defendant entity. Subsequent cases have refused to apply this analysis applicable to negligence claims, to corporate officers who have committed intentional torts. See Asahi Kasei Pharma Corp. v. Actelion Ltd. (2013) 222 Cal. App.4th 945, 966-967 (“the Individual Defendants entirely fail to explain what these negligence principles have to do with their liability for an intentional tort”). Here, Defendant Ko intentionally caused a nuisance and engaged in conduct with malice, oppression, or fraud as found by the jury which gives rise to Defendant Ko’s liability for punitive damages. Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920; Sturges v. Charles L. Harney, Inc. (1958) 165 Cal.App.2d 306, 321. PLAINTIFFS’ OPPOSITION TO ETA ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT Oo © 0 0 N N oO Oo A O w O N - N N O N O N N O N BN KE NN KK & ud e b e h e f ee l e h e l l e l e ge l oo N N oO 0 0 A W O N A O O © 00 N O O O O O DN A W N A Likewise, the employee-wrongful-discharge-cases Defendant Ko cites have no application here. In Soules v. Cadam, Inc. (1991) 2 Cal.App.4th 390,404 (disapproved of by Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251), the plaintiff-employee's claims against a corporate officer were rejected by the court because damages for emotional distress are not recoverable in a wrongful discharge action. The court went on to hold that an employee who was not constructively discharged cannot maintain additional tort theories against her employer based upon the same underlying facts. Id. Again, Defendant Ko entirely fails to explain what these principles have to do with his liability for an intentional tort. B. Contrary To Defendant Ko’s Argument, Michaelis Supports Imposing Individual Liability On Him As the Court no doubt recalls, at trial this Court reasoned that Michaelis v. Benavides (1998) 61 Cal.App.4th 681, 686, supports individual liability against Defendant Ko. RT 2512:7- 2516:6. In his INOV motion, Defendant Ko now asserts that the only reason the Michaelis Court recognized liability for a corporate employee was because of a stipulation that was entered into by the defense in that case establishing that the employee owed a duty to the plaintiff. (Ko JNOV 4-6.) Defendant Ko’s attempted distinction fails. In Michaelis, the plaintiffs contended that the defendant, who was president and majority owner of the defendant corporation, was personally liable for property damage resulting from the defendants’ negligence in constructing a patio and driveway. The Court of Appeal reversed the judgment of nonsuit entered by the trial court concluding that the plaintiffs had alleged a cause of action for negligence for personal liability. As with the individual defendant in Michaelis, in this case Defendant Ko personally made the decisions regarding the Building. Nevertheless, Defendant Ko argues that Michaelis has no application to him because the individual defendant in that case stipulated that he was negligent in the construction. Michaelis, supra, 61 Cal.App.4th at 683. But the Michaelis court was clear that liability in that case was proper under Frances 7. which held that a corporate officer can be liable for his own tortious conduct. 7d. at 685. The stipulation was simply used by the Court as proof that the corporate officer was individually negligent by acknowledging that he breached a PLAINTIFFS’ OPPOSITION TO SEE ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT A O N Oo 11 14 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 duty owed to appellants, rather than merely a breach of duty the respondent owed to respondent’s corporation. However, in addition, the Michaelis plaintiffs alleged facts indicating the officer’s personal liability was based upon his direct participation and decision-making in the construction of the patio and driveway. It was all of this evidence that led the Court to conclude that personal liability was warranted. Michaelis, supra, 61 Cal.App.4th at 686. Similarly, an agent who commits a tort, such as fraud, is subject to liability and the fact that the principal thus becomes liable does not exonerate the agent from liability. Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon& Gladstone (2003) 107 Cal.App.4th 54, 68-69 (rev. denied; citations omitted); see also Klein v. Oakland Raiders, Ltd. (1989) 211 Cal.App.3d 67, 79-81 (“manager’s privilege” did not exempt corporate officer for tortious interference with prospective advantage.) Here there is much stronger evidence supporting personal liability than the stipulation in Michaelis. Plaintiffs presented evidence of Defendant Ko’s personal intentional wrongdoing. Third party Susan Strong testified that Defendant Ko had to approve all repairs at the Building. She testified that when she became property manager in 2012, there was no heat in the Building. “It was freezing.” RT 619. However, Defendant Ko refused to approve the cost of a new boiler after it had already been delivered to the Building. The thermostats did not work. At that time, Kevin Duffield of HP Mechanical was busy with some of Defendant Ko’s other properties so Defendant Ko would not use him to do some of the repairs necessary at Anaheim. RT 620, 622. The doctors and patients in the Building were complaining because nothing had been done to fix the heat or the air in the Building. RT 623. For purposes of repairing the Building’s air conditioning, contractors were recommending replacement of the cooling tower. RT 653-654. However, Defendant Ko would not authorize replacement. RT 654. The lack of proper air conditioning had been repeatedly documented. By email dated August 31, 2009 (Exh. 282), the property manager, Gilda Granell, brought to Defendant Ko’s attention that the air conditioning was running on one compressor which was not sufficient to cool the Building. Doctors would have to actually leave their office doors open because they had insufficient air flow. RT 805. Additionally, there were ongoing plumbing problems where water would leak from the overhead PLAINTIFFS’ OPPOSITION TO GEERT ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT OO OW 0 N N oO Oo Mh WOW N N a K E W y I N N N KN O N O K MN BN a e l m i e l o w l e l we d w h a l aa 0 NN O O OO A W O N A O © O N O O O D N W N a lines in the ceiling. RT 625. Ceiling tiles became black and moldy because they were not getting addressed. RT 625-626. Defendants, including Defendant Ko, received a correction notice from the Anaheim Fire Department. Exh. 658. The fire alarm throughout the system was not working or functioning. Additionally, the emergency generator had not been maintained at all. RT 627-629. Susan Strong also sent an e-mail to Defendant Ko (Exh. 296) expressing her frustration and the tenants’ frustration that there was no hot water in the building and to reiterate that the health department was issuing citations. Defendant Ko did not respond to the e-mail. RT 630-631. There were also problems with the elevators: elevator number 3 was nonfunctional and the other two had problems such that sometimes, all three were not working. When the elevators did not work, the Anaheim Fire Department would be called and they would carry non-ambulatory people downstairs. RT 633. Amtech Elevator, the service company, had serviced the Anaheim building and a couple of Defendant Ko’s other buildings but they had not been paid. They were owed more than $14,000. Defendant Ko nevertheless wanted them to work on the Building but they refused unless they were paid. RT 634. Defendant Ko was candidly not concerned that elevator 3 was not working. Indeed, he was happy with it being nonoperational. RT 653. The Anaheim Planning Department issued a Notice of Violation (Exh. 330) which provided notice that the Building constituted a nuisance. The tenants of the Building also provided a letter to Susan Strong regarding their complaints. Exh. 304. She did not disagree with anything in the letter. RT 650. As property manager, Ms. Strong requested that a contractor, Duthie, conduct basic maintenance work on the Building’s generator which served as a backup power source for the pumps to supply water throughout the Buildings fire sprinkler system. Duthie reported that there was a big leak at the pressure water pump. Exh. 105-8 to -11. Duthie recommended repair to avoid an electrical hazard. RT 639-640. Ms. Strong took pictures of the leak because she wanted to meet with Defendant Ko and show him the severity of the leak to demonstrate that it needed to be fixed. RT 641. Ms. Strong obtained two bids to fix the leak. She then had communication with Defendant Ko by telephone and met with him face to face and showed him pictures of the PLAINTIFFS’ OPPOSITION TO ERE ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 leak and told him the pricing for repairs. Defendant Ko just ignored her requests. RT 645. Ultimately, Defendant Ko did not approve the repair of the leak. RT 648. Despite Duthie’s recommendation to immediately repair the leak, Defendant Ko ignored the advice of the experts and thereby allowed the leak to continue, flooding the generator and fire safety equipment room as predicted. The unrepaired leak caused the domestic water pipe to fail causing a flood which closed the Building for two weeks until water service was restored as ordered by the City of Anaheim. Jeffrey Gores of California Coast Plumbers was retained to address the failed water pipe and flood. RT 719-720. He had to replace the water pipe, as identified in the photographs of the leak taken by Susan Strong (Exh. 302-1A), because it had not been repaired when the leak was previously detected and reported to Defendant Ko. RT 724-726. Testimony at trial from several witnesses including Richard McDonald, Tony Nuzzo, and Fire Captain David Baker established that Defendants were aware that the fire alarms were malfunctioning in the Building, including not being audible on each floor. RT 434:5-14, 1114:9- 1118:25; Exh. 209. Richard McDonald was called out to the Building to diagnose the problem, which included outdated equipment, and he prepared an estimate to fix the fire alarms, although Defendants did not hire him to make the repairs. RT 1122:8-1125:18. Mr. McDonald returned to the Building in 2016, inspected the system again, and saw that it had not been repaired. RT 1125:19-1126:11. Plaintiffs’ testimony confirmed that the fire alarms have not functioned properly for years. RT 119:22-26 (Goodman); 434:5-14 (Farshidi); 1282:3-5 (Greiner). As noted, Susan Strong testified the subterranean pump room flooded because Defendants refused to pay full price to proactively fix a plumbing leak - Defendant Ko asked for a $156 discount, but was rebuffed by the plumber. RT 639:15-640:7, 643:20-644:1, 644:21-648:17; Exhs. 105-8 to - 11, 321-2 to -4, 661-5. Tony Nuzzo testified this flood damaged the fire sprinkler pumps, allowed diesel fuel to contaminate the sprinkler water supply, and damaged the emergency generator, which drives the fire sprinkler pumps. RT 1064:3-1065:11, 1075:15-24, 1095:7-15. He further testified that some repair work was performed on the generator and fire sprinkler pumps, but was never completed because Defendant Ko refused to pay for the work to be PLAINTIFFS’ OPPOSITION TO aL ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT a A Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 finished, even after Defendant Ko was told that the work would not be completed until he paid for it. RT 1078:22-1079:20, 1080:12-15, 1088:22-1089:1, 1091:10-13, 1093:3-12, 1612:14- 1613:22; Exhs. 488-14 to -15, 488-18, 488-21. Anaheim Fire Captain David Baker testified that on July 23, 2013, during the time when the fire alarms and fire sprinkler pumps were known to not be fully functional, the Anaheim Fire Department responded to a “smell of smoke” at the Building, where it found “numerous cardboard boxes stacked against an overheating transformer.” RT 1319:20-24; Exh. 2262-133. This incident occurred when Defendant Ko knew that the fire alarms were not functioning properly and the fire sprinkler pumps were non-operational. The evidence established that Defendant Ko allowed Plaintiffs to work in the Building for years without a properly functioning fire alarm system, nor a properly functioning fire sprinkler system, constituting a recipe for disaster. The jury was thus entitled to conclude that it was a mere fortuity that a disaster did not strike, especially since the elevators malfunctioned for years, with the Building going without any elevators at times. Exhs. 2262-45, -62, -80, -97, -142, -275, -340, -448. Defendant Ko’s refusal to pay for the repairs to the fire alarm and fire sprinkler systems, combined with his knowledge that Plaintiffs worked in the Building for years thereafter, establishes “an indifference to or a reckless disregard of the health or safety of” Plaintiffs. Additional facts that evidence an “indifference to or a reckless disregard of the health and safety of” Plaintiffs include: Defendant Ko’s refusal to spend $1,656 to repair the leak in the subterranean mechanical room which housed the domestic water pump, the fire sprinkler pumps, and the emergency generator; Defendant Ko’s refusal to timely repair the cooling tower and other HVAC components, forcing Plaintiffs to work in offices with temperatures exceeding 80, 90, and 100 degrees; Defendant Ko’s refusal to address the “black dust” blowing out of the HVAC vents into Plaintiffs’ offices; Defendant Ko’s refusal to fix the leak into Plaintiff Lee’s office, and Defendants’ failure to take actions to stop the cockroach infestation. RT 146:14-148:21, 199:6-26, 441:18-25, 645:23- 648:17,921:11-18, 925:21-926:1, 945:15-21, 1262-6-16, 1707:3-19; Exhs. 29-9 to -11, 29-115 to -117, 205-1, 211-2. 1 10 PLAINTIFFS’ OPPOSITION TO DEFENDANT ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT © © 00 N N O O Oa H O W O N a N N O N N N O N NN PD DM N NN = o w o e «2 ea o S a f e h e y ow © N N O O O h Ww W O N A O © 0 N O O r , W N a The jury specifically found that Defendant Ko, both individually and on behalf of Defendant KAP, caused Plaintiffs to each suffer monetary losses including lost profits and diminution of rental value as a result of Defendant Ko engaging in conduct with malice, oppression, or fraud. See Defendants’ Exhibits A-H. This finding is amply supported by the evidence. Finally, Defendant Ko’s attempt to draw a distinction between personal injury and property damages (Motion at 3:13-17) fails. This concept was also explored by the court in Michaelis, supra, 61 Cal. App.4th at 687: As appellants state, this distinction between damage to property and personal injury damage is artificial. It is not unlikely that personal injury could have resulted from the unsafe conditions caused by the structurally defective patio and driveway. Physical harm may be a consequence in either a personal injury or a property damage case. As legally defined, "economic" damages include both damages to a person and to his property. "[T]he term ... means objectively verifiable monetary losses including ... loss of earnings, ... loss of use of property, costs of repair or replacement, ... loss of employment and loss of business or employment opportunities." (Civ. Code, § 1431.2, subd. (b)(1).) The jury returned verdicts finding that Plaintiffs had each suffered monetary losses including lost profits and diminution of rental value as a result of Defendant Ko causing a nuisance and engaging in conduct with malice, oppression, or fraud. See Defendants’ Exhs. A-H. C. Defendant Ko’s Actions With Malice, Oppression Or Fraud Support Personal Liability Corporate shareholders, officers, and directors have been held personally liable for intentional torts when they knew or had reason to know about but failed to put a stop to tortious conduct. McClory v. Dodge (1931) 117 Cal.App. 148, 152-154 (directors who knew, or by the exercise of reasonable diligence and care could and would have known, that plaintiff's stock had been converted to the use of the corporation were personally liable); Vujacich v. Southern Commercial Co. (1913) 21 Cal.App. 439, 442-443 (director who either knew or could have obtained knowledge by the exercise of ordinary diligence was personally liable for conversion of plaintiff’s funds to a corporate use); see also Mercer v. Dunscomb (1930) 110 Cal.App. 28, 37. Further, an officer's or director's knowing consent to, or approval or authorization of, wrongdoing suffices to impose personal liability. Frances T., supra, 42 Cal.3d at 508-509; see PLAINTIFFS’ OPPOSITION TO RRR ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT oO OW 00 N N O O O O A O W N a N R RK B N NN N N O N O N DN a a w l a l a e s e h e l e l y m l e X a k © N N O O O0 0 A W N A O © O N O O O N A N W N Aa also Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d 664, 678-689 (reckless disregard). As summarized above, here there is substantial evidence supporting the jury’s finding that Defendant Ko individually acted with a conscious disregard of the rights or safety of others. D. Defendant Ko Intentionally Interfered with the Economic Relations Between Plaintiff Lee And/Or New Light Medical Group And Their Patients Defendant Ko next attacks the jury’s finding that Defendant Ko intentionally interfered with economic relations as to Plaintiff Lee. This argument also fails. The jury found: (1) Plaintiff Lee and/or New Light Medical Group, Inc., on the one hand, and the patients of Plaintiff Lee and New Light Medical Group, Inc., on the other hand, had an economic relationship that probably would have resulted in an economic benefit to Plaintiff Lee and/or New Light Medical Group, Inc. (see Defendants’ Appx. D); (2) Defendant Ko knew of the relationship between Plaintiff Jeong Ok Lee and/or New Light Medical Group, Inc., and their patients (id.); (3) Defendant Ko engaged in wrongful conduct by failing to properly repair and/or maintain the Building (id.); (4) by engaging in the wrongful conduct, Defendant Ko knew that disruption of the relationship was certain or substantially certain to occur (id.); (5) the relationship between Plaintiff Lee and her patients, and/or between New Light Medical Group, Inc. and its patients, was disrupted (id.); (6) Plaintiff Lee and/or New Light Medical Group, Inc. were harmed (id.); and (7) Defendant Ko’s conduct was a substantial factor in causing harm to Plaintiff Lee and/or New Light Medical Group, Inc. Id. Substantial evidence supported these findings. RT 888-925, 1477; Exh. 275 (in addition to evidence previously stated). Defendant Ko argues that the jury’s conclusions “can only apply to Robert Ko the corporate officer.” Motion at 9:17-19. However, Defendant Ko’s position as a corporate officer does not insulate him from personal liability for his own intentional torts. Frances T., supra, 42 Cal.3d at 508-509; McClory, supra, 117 Cal. App. at 152-154; Vujacich, supra, 21 Cal. App. at 442-443; Mercer v. Dunscomb, supra, 110 Cal. App. at 37. As already described, substantial evidence was presented that Defendant Ko personally directed that elevators not be repaired, boilers not be replaced so as to deprive the Building of heat, and the refusal to replace the cooling tower after being advised by experts that it needed to be replaced to provide air PLAINTIFFS’ OPPOSITION TO RO ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT OO © 00 ~N oO Oa Hh WOW N N K E KN N N BN NO NN FE DBN DN a w s aa m l m h c e d s l y j e l a l a S 0 N N oO Oo A O W O N A O O W Oo N O O h h , W N a conditioning to the Building. Instead, Defendant Ko waited until the City of Anaheim provided notices that a nuisance existed at the Building (Exh. 301) before allowing elevator repairs to proceed and waited to the eve of trial to authorize replacement of the cooling tower. E. Plaintiffs’ Nuisance Claims Support Judgment Against Defendant Ko Individually Irrespective Of Any Alter Ego Finding Defendant Ko next argues that he cannot be personally liable for any tort committed because the Court granted Defendants’ motion for nonsuit on the alter ego allegation which was not tied to any specific cause of action. (RT 1796-1797, Defendants’ Appx. O.) This argument fails. Directors are jointly liable with the corporation and may be joined as defendants if they personally directed or participated in the tortious conduct. PMC, Inc. v. Kadisha (2000) 78 Cal. App.4th 1368, 1379 (Citations omitted). As the PMC court stated: “This liability does not depend on the same grounds as ‘piercing the corporate veil, on account of inadequate capitalization for instance, but rather on the officer or director's personal participation or specific authorization of the tortious act.” Id. at 1380 (citing Frances T., supra, 42 Cal.3d at 503-504, fn. omitted.) To repeat what Defendant Ko refused to accept: Shareholders may also be liable for a corporation's torts, "when [they] specifically direct] ] or authorize[ ] the wrongful acts." Id. (citing Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 785; 18B Am.Jur.2d, Corporations, § 1829 (1985).) A corporate director or officer's participation in tortious conduct may be shown not solely by direct action but also by knowing consent to or approval of unlawful acts. /d. In Spahn v. Guild Industries Corp. (1979) 94 Cal.App.3d 143, 157, the Court of Appeal held officers and directors of a corporation were personally liable for fraud committed by a managerial employee because they knew about and allowed the tortious conduct to occur. All persons who are shown to have participated in an intentional tort are liable for the full amount of the damages suffered and this rule applies to intentional torts committed by shareholders and those acting in their official capacities as officers or directors of a corporation, even though the corporation is also liable. PMC, supra, 78 Cal.App.4th at 1381-1382 (citations omitted). Additionally, shareholders, officers, and directors of corporations have been held personally liable for intentional torts when they knew or had reason to know about but failed to put a stop to PLAINTIFFS’ OPPOSITION TO SENDA ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT OO © 0 0 ~N O O Oo Hh W O N a N E N N N N B N N D O N NN RB NN a e l 8 em w h d m e d e l s s x a a 0 N N O O O O A WO W O N a2 O O © O N O O O D N W N a tortious conduct. /d. at 1387-1388 (citations omitted). Under these principles Defendant Ko is liable based on his intentional personal participation in the conduct supporting the nuisance claim. IV. THERE IS CLEAR AND CONVINCING EVIDENCE THAT DEFENDANT KO ACTED WITH MALICE, FRAUD OR OPPRESSION The jury concluded that Defendant Ko acted with malice, oppression, or fraud both in his individual capacity and as an agent of Defendant KAP as against all four Plaintiffs thereby justifying an award of punitive damages against Ko individually. (See Defendants’ Appx. A-D.) Mock v. Michigan Millers Mut. Ins. Co. (1992) 4 Cal.App.4th 306, 333 n. 29, cited by Defendant Ko, is readily distinguishable. Unlike Mock, here the jury was specifically instructed with CACI 201, providing: “Certain facts must be proved by clear and convincing evidence, which is a higher burden of proof. This means the party must persuade you that it is highly probable that the fact is true. I will tell you specifically which facts must be proved by clear and convincing evidence.” The jury was also instructed as to CACI 3948: If you decide that a Defendant’s conduct caused Plaintiffs harm, you must decide whether that conduct justifies an award of punitive damages against Defendant Robert Ko and/or Defendant Ko’s Anaheim Professional, Inc. .... You may award punitive damages against Defendant Robert Ko ... only if Plaintiffs prove by clear and convincing evidence that the Defendant engaged in that conduct with malice, oppression, or fraud. “Malice” means that ... a Defendant’s conduct was despicable and was done with a willful and knowing disregard of the rights or safety of another. A Defendant acts with knowing disregard when the defendant is aware of the probable dangerous consequences of his, her, or its conduct and deliberately fails to avoid those consequences. “Oppression” means that a Defendant’s conduct was despicable and subjected Plaintiffs to cruel and unjust hardship in knowing disregard of their rights. “Despicable conduct” is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people. “Fraud” means that a Defendant intentionally misrepresented or concealed a material fact and did so intending to harm Plaintiffs. .... Punitive damages are proper when the tortious conduct rises to levels of extreme indifference to plaintiffs’ rights, a level which decent citizens should not have to tolerate. 14 PLAINTIFFS’ OPPOSITION TO DEFENDANT ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT oO Oa A» O W O N 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal. App.4th 1269, 1287 (citations omitted). Here, the evidence at trial established that Defendant Ko’s conduct intentionally deprived Plaintiffs of fully functional fire alarms, fire sprinklers, HVAC, and elevators thereby placing the lives of Plaintiffs and their patients at substantial risk. As reflected herein, there is clear and convincing evidence that Defendant Ko acted with malice, fraud or oppression. The jury reasonably concluded that punitive damages were warranted for several reasons, including the fact that Defendant Ko’s actions resulted in Plaintiffs having to work in the Building for years without fully functional fire alarms, fire sprinklers, and elevators. Defendant Ko engaged in additional conduct warranting punitive damages, including refusing to repair the HVAC system, refusing to repair the leak above Plaintiff Lee’s office, refusing to fix the leak in the subterranean generator room, refusing to address the cockroach issue until after it became an infestation, and billing Plaintiffs for work done at other properties owned by Defendant Ko. This clear and convincing evidence is more than sufficient to support the jury’s award of punitive damages. V. CONCLUSION Because substantial clear and convincing evidence establishes Defendant Ko’s personal liability, his motion for INOV should be denied in its entirety. DATED: May 8, 2017 VOSS, COOK & THEL LLP ames G. Damon Daniel S. Kippen Attorney for Plaintiffs 15 PLAINTIFFS’ OPPOSITION TO DEFENDANT ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR, ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT © 00 N N O O O O Hh O O N - N N OR EN BB DM D DN N B N PRD =a o e e d m d d e d e h wm l e d m h am oo N N oO O0 0 A W O O N 2,2 O O OW 00 N N OO O0 0 h h Ww N N ~ ~ oO PROOF F SERVICE STATE OF CALIFORNIA ) ) COUNTY OF ORANGE ) I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My Business address is 895 Dove Street, Suite 450, Newport Beach, California 92660. On May 8, 2017, I served the foregoing documents described as PLAINTIFFS’ OPPOSITION TO DEFENDANT ROBERT KO’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR ALTERNATIVELY, MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT on all interested parties in this action by placing the [ ] original [x] a true copy thereof enclosed in a sealed envelope, addressed as follows: Joan E. Cochran, Esq. COCHRAN, DAVIS & ASSOCIATES, P.C. 36 Malaga Cove Plaza, Suite 206 Palos Verdes Estates, CA 90274 joan@cochranlawl.com Attorney for Defendants /Cross-Complainants/Cross-Defendants [] BY MAIL I caused said envelope to be deposited in the U.S. Mail, as follows: Iam “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 Newport Beach, California, in the ordinary course of business. I am aware that, on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in this affidavit. [] BY E-MAIL OR ELECTRONIC TRANSMISSION: (COURTESY COPY) Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. [] BY OVERNIGHT EXPRESS On , | deposited in a box or other facility regularly maintained by Federal Express, an express service carrier, or delivered to a courier or driver authorized by said express service carrier to receive documents, (copy of the attached document), together with an unsigned copy of this declaration, in an envelope designated by the said express service carrier, with delivery fees paid or provided for, addressed as listed above. [XX] BY HAND I caused said envelope to be delivered by hand/messenger to the offices of the addressee. I declare that I am employed in the office of a member of the bar of this Court, at whose direction the service was made. Executed on May 8, 2017, at Newport Beach, California. i / 20 lp pi Lion PLAGE Jeanne r Thompson J