Elm Drive LLC v. Noorani, et. al.

other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040." (Code Civ. Proc., Sec. 2025.420, subd. (a).) Here, Serebrisky issued the notice on April 3, 2026, for a deposition date of April 30, 2026, at 10:00 a.m., in person, in Woodland Hills. (Krishel Delc., Ex. A.) On April 4, 2024, Kenig served an objection to the documents sought in the deposition but did not object to appearing for deposition. (Id., Ex.

B.) Serebrisky states that Kenig refused to appear in-person and would not provide any dates to appear in-person. (Id., Ex. C-D.) In support of the proposition that a deponent must appear in-person absent agreement, Serebrisky cites California Rules of Court, rule 3.1010, subdivision (c) ["A deponent must appear as required by statute or as agreed to by the parties and deponent"]. In opposition, Kenig argues that, when the instant motion was filed, the noticed date had not arrived, and Kenig confirmed the day after the notice was issued on April 4, 2026, that he was willing to appear remotely because he was in Israel due to a family emergency.

Kenig also highlights that he remains willing to be deposed. In reply, Serebrisky argues that Kenig did not disclose that he was in Israel or that there was a family emergency prior to the opposition. But Kenig did indicate that he would appear remotely because he was outside of the United States. (Krishel Decl., Ex. C.) Serebrisky's motion to compel the deposition of Kenig is GRANTED. Kenig was served with a valid notice of deposition pursuant to Code of Civil Procedure section 2025.210, et seq. (Krishel Delc., Ex.

A.) Kenig did not seek a protective order pursuant to Code of Civil Procedure section 2025.420, as conceded by Kenig. (Opp. at 8:28.) Kenig's opposition essentially seeks a limited protected order requiring that Kenig's deposition be taken by Zoom; Kenig has not, however, complied with section 2025.420, which requires that he file a noticed motion. Serebrisky's request for monetary sanctions is DENIED. The Court finds that monetary sanctions are not appropriate because Kenig's position was substantially justified given that he was in Israel due to a family emergency at the time and offered to appear remotely.

Moving party to give notice.

TENTATIVE RULING August 27, 2026 25SMCV03500 (Elm Drive LLC v. Noorani, et. al.) RELEVANT BACKGROUND On July 8, 2025, plaintiff Elm Drive LLC (Plaintiff) filed the complaint against defendants Behdad Moshe Noorani and Behnaz Noorani (Defendants), alleging two causes of action: (1) breach of written lease; and (2) open-book account. On or about April 22, 1996, at Beverly Hills, California, Plaintiff's predecessors, Hillel Sharlin,

Diane Sharlin and Robert S. Whitman (collectively Plaintiff's Predecessors), and Defendants entered into a written lease for the Premises the term of which commenced May 1, 1996, and was to run through April 30, 1998 (the Lease). Defendants entered into possession of the Premises pursuant to the Lease. (Compl. P. 8, Ex. 1.) Section 3 of the Lease provided that the Defendants were to pay Plaintiff's Predecessors a monthly rent for the Premises in the amount of $2,100.00 for the first year, commencing May 1, 1996, and a monthly rent of $2,200.00 for the second year, commencing May 1, 1997 and ending April 30, 1998. (Id., Sec. 3.)

From September 2021 to March 15, 2022, Defendants stopped paying rent. (Id. P. 15.) In March 2022, Defendants made two payments for a total sum of $23,871.66, leaving a past-due rent balance of $4,268.10. (Id.) Thereafter, from April 1, 2022, to May 29, 2025, Defendants again stopped paying rent. (Id. P. 16.) Including the May 2025 rental payment, Defendants' rental arrears had increased to $170,979.25, excluding late-payment penalties of $100.00 per month for each late rental payment. (Id. P. 17.)

On or about May 27, 2025, Defendants paid the total amount of Plaintiff's three-day notice, $53,491.28, leaving a past-due rent balance of $117,487.97 ($170,979.25 - $53,491.28 = $117,487.97). (Id. P. 18.) Plaintiff alleges that, "as a direct result of the breach of the aforesaid Lease by Defendants and DOES 1 through 100, Plaintiff has been damaged in sum no less than One Hundred Twenty Two Thousand, Four Hundred Thirty-One Dollars and Fifteen Cents ($122,431.15 [$117,831.15 past due rent plus $4,600.00 late charges equals $122,431.15]), plus attorneys' fees and costs, pursuant to Section 29 of the Lease, in an amount to be proven at the time of trial." (Id.

P. 27.) INSTANT MOTION On December 19, 2025, Defendants filed the instant demurrer to the second cause of action alleged in the complaint for open-book account. Plaintiff filed an opposition, and Defendants filed a reply. DISCUSSION A book account is "a detailed statement which constitutes the principal record of one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary relation." (Code Civ. Proc. Sec. 337a.) "A book account is described as 'open' when the debtor has made some payment on the account, leaving a balance due." (Interstate Group Administrators, Inc. v.

Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708.) To state a cause of action for breach of contract, a plaintiff must be able to establish "(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff." (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Here, Defendants argue that the second cause of action for open-book account is duplicative of the first cause of action for breach of contract.

The Court agrees. The Complaint pleads a written lease executed April 22, 1996, attaches it as Exhibit 1, identifies the section of

that lease fixing each monthly rent installment, and computes Plaintiff's damages to the penny under that lease: $117,831.15 in unpaid rent plus $4,600.00 in contractual late charges, totaling $122,431.15. (Complaint, P.P. 8-9, 19, 23, 27.) Paragraph 28 incorporates all of the prior paragraphs, and paragraph 29 re-pleads the identical $122,431.15 as an "open book account" for "materials, supplies, labor, and/or services provided to Defendants and DOES 1 through 100 by Plaintiff pursuant to the Lease." (Id.

P. 28-29.) The Court agrees with Defendants that Plaintiff's open-book cause of action here is not compatible with its breach-of-written-contract cause of action. (See Eloquence Corp. v. Home Consignment Center (2020) 49 Cal.App.5th 655 ["An express contract, which defines the duties and liabilities of the parties, whether it be oral or written, is not, as a rule, an open account."], citing Durkin v. Durkin (1955) 133 Cal.App.2d 283, 290 ["[a]n express contract, which defines the duties and liabilities of the parties, whether it be oral or written, is not, as a rule, an open account."]; Armstrong Petroleum Corp. v.

Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, 1395, fn. 9 [moneys due under an express contract cannot be recovered in an action on an "open book account" in the absence of a contrary agreement between the parties."]; Warda v. Schmidt (1956) 146 Cal.App.2d 234, 237 ["The mere recording in a book of transactions or the incidental keeping of accounts under an express contract does not of itself create a book account.[citations] Such memoranda cannot be utilized under the guise of a book account as a device to extend the statute of limitations beyond the time it would run on the contractual obligation."] As Defendants point out in reply, the authority cited by Plaintiff in opposition explains why this is the case. (See Joslin v.

Gertz (1957) 155 Cal.App.2d 62.) Joslin involved "periodic payments under lease agreements which fixed the time for payment of the several obligations," and the court explained, "[t]o permit such obligations to be transformed into an open book account would be to make for the parties a contract different from that upon which they had agreed." (Ibid.) Here, the $122,431.15 Plaintiff demands in the complaint includes $4,600.00 in late charges computed at $100.00 for each missed installment under Section 39 of the Lease. (Complaint, P. 23.)

A balance produced by applying a contractual penalty clause to a contractual payment schedule is a contract balance, not an open-book account. Moreover, Plaintiff does not plead any facts establishing any agreement or conduct that created an open-book account. (See Compl. P. 28-31; H. Russell Taylor's Fire Prevention Service, Inc. v. Coca Cola Bottling Corp. (1979) 99 Cal.App.3d 711, 728 ["[a] book account is created by the agreement or conduct of the parties in a commercial transaction...the mere recording in a book of transactions or the incidental keeping of accounts under an express contract does not of itself create a book account."].)

Plaintiff also fails to meet its burden of showing that the defects can be cured by amendment. (See Opp. at p. 10:11-19; Goodman v. Kennedy (1976) 18 Cal.3d 335, 348 [The burden is on the plaintiff to show the court that a pleading can be amended successfully.].) Accordingly, Defendants' demurrer to the second cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. |