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Ruling
SANDRA, TRUSTEE FOR THE NANCY LEWIS TRUST DTD 1/18/2017 FLORES VS CITIBANK, N.A., A DELAWARE CORPORATION, ET AL.
Aug 13, 2024 |6/18/2022 |23SMCV03279
Case Number: 23SMCV03279 Hearing Date: August 13, 2024 Dept: I The court gave the FSC order on May 5, 2024. Some FSC materials have been filed. Specifically, on 8/7/24, the court received the following: (1) Joint Exhibit List (about 25 exhibits, no statements on authenticity or objections); (2) Joint Witness List (6 witnesses, 8 hours total direct and cross examination). There is no statement of unusual issues, revised trial estimate, or defense trial brief (plaintiff filed a trial brief on 8/12/24). That said, the court is roughly aware of the issues, so the lack of any trial brief is hardly fatal. The court assumes there are no unusual issues and that the 1 day estimate stands. The court will ORDER the parties to revise the exhibit list so that the exhibits are each separately numbered (no 8A types of exhibits) and to reach an agreement on authenticity where possible (which ought to be all or almost all of the exhibits) and to state any other objections to the admission of the exhibits. The revised exhibit list will be filed by Wednesday. If the revised list is filed, the court will deem the matter READY FOR TRIAL and trial might start on 8/19/24. The problem is that the court is currently involved in a jury trial. If that trial is ongoing, then this case will be CONTINUED to 8/23/24 at 10:00 am. All of that said, the court urges the parties to settle this matter. The court is not changing its treble damages ruling.
Ruling
4E CAPITAL LP, A CANADIAN LIMITED PARTNERSHIP, ET AL. VS PACIFIC CONSOLIDATED HOLDINGS GROUP, INC., A DELAWARE CORPORATION, ET AL.
Aug 15, 2024 |24STCV02587
Case Number: 24STCV02587 Hearing Date: August 15, 2024 Dept: 1 24STCV02587 4E CAPITAL LP, et al v. PACIFIC CONSOLIDATED HOLDINGS GROUP, et al Defendants Unopposed Motion to Transfer And Consolidate Actions TENTATIVE RULING: Defendant Pacific Consolidated Holdings Groups Unopposed Motion to Transfer And Consolidate Actions is GRANTED. The Court orders Santa Barbara Superior Court Case 24CV01682 Pacific Dutch Group v. OBM PDG transferred to Department 56 of the Stanley Mosk Courthouse in the Central District of the Los Angeles Superior Court to be consolidated with 24STCV02587 for trial purposes. Defendant Pacific Consolidated Holdings Group is ordered to promptly serve the order on all parties to each case and send it to the Judicial Council and to the presiding judge of the court from which each case is to be transferred, (Cal. R. Ct., rule 3.500(e)), and promptly take all appropriate action necessary to assure that the transfer takes place and that proceedings are initiated in the other court or courts to complete consolidation with the case pending in that court. (Cal. R. Ct., rule 3.500(f).) Moving party to give notice. Background On January 31, 2024, Plaintiffs 4E Capital LP, Pharm Capital, LLC, and Alexey Mikhaylov sued Pacific Consolidated Holdings Group, Inc., Meridian Via Real, LLC, Zevo Drive Holdings, LLC, Omar Mangalji, Michael Steinberg, David Mehlman, OBM PDG, LLC, Via Real Group, LLC, OBM Holdings, LLC, and The Inception Companies, LLC arising out of several loans made to Pacific Consolidated Holdings Group. The First Amended Complaint, (FAC), filed on June 26, 2024, asserts twenty-six causes of action, including claims for breach of contract, fraudulent conveyances, larceny, breach of fiduciary duty, fraud, accounting, and declaratory relief. The FAC alleges Plaintiffs made $9.75 million in loans to Defendant Pacific Consolidated Holdings, a cannabis company, and the loans are in default. The FAC also alleges, in relevant part, that Pacific Consolidated Holdings agreed to assign promissory notes due to OBM PDG from Rincon Point Farms, LLC, Carpinteria Peak Land, LLC and Pacific Dutch Group, LLC to Plaintiffs. On March 22, 2024, Pacific Dutch Group, LLC, Carpinteria Peak Land LLC, and Rincon Point Farms LLC, filed a complaint in interpleader in the Santa Barbara Superior Court, case number 24CV01682, naming OBM PDG, LLC, Pacific Consolidated Holdings Group, Inc., Meridian Via Real, LLC, Zevo Drive Holdings, LLC, Omar Mangalji, Michael Steinberg, David Mehlman, 4E Capital LP, Pharm Capital, LLC, and Alexey Mikaylov as Defendants. The complaint in interpleader alleged Plaintiffs Pacific Dutch, Carpinteria Peak Land, and Rincon Point Farms issued promissory notes to OBM PDG requiring Plaintiffs to pay monthly installments. However, there is a disagreement regarding who now owns the notes with 4E Capital, Pharm Capital, and Alexey Mikaylov claiming the notes were assigned to them and Pacific Consolidated Holdings Group, Meridian Via Real, Zevo Drive Holdings, Omar Mangalji, Michael Steinberg, and David Mehlman disputing the assignment. Standard Los Angeles Superior Court Local Rule 3.3(h) provides: [a] civil case which is not complex as defined by Standard 3.10 of the Standards of Judicial Administration may be transferred to the court from a superior court in another county, if it involves a common question of fact or law within the meaning of Code of Civil Procedure section 403. The coordination motion shall be made in compliance with the procedures established by California Rules of Court, rule 3.500. Coordination motions seeking to transfer a case or cases to the Central District shall be filed and heard in Department 1. Coordination motions seeking to transfer a case or cases to a district other than the Central District shall be heard by the Supervising Judge in that district. Coordination motions are governed by Code of Civil Procedure section 403, which states, in relevant part: A judge may, on motion, transfer an action or actions from another court to that judge's court for coordination with an action involving a common question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions meet the standards specified in Section 404.1, are not complex as defined by the Judicial Council and that the moving party has made a good faith effort to obtain agreement to the transfer from all parties to each action. Notice of the motion shall be served on all parties to each action and on each court in which an action is pending. Any party to that action may file papers opposing the motion within the time permitted by rule of the Judicial Council. The court to which a case is transferred may order the cases consolidated for trial pursuant to Section 1048 without any further motion or hearing. (Code Civ. Proc. § 403.) California Rules of Court, rule 3.500(c) requires that the motion must be supported by a declaration stating facts showing that: (1) The actions are not complex; (2) The moving party has made a good-faith effort to obtain agreement to the transfer and consolidation from all parties to the actions; and (3) The moving party has notified all parties of their obligation to disclose to the court any information they may have concerning any other motions requesting transfer of any case that would be affected by the granting of the motion before the court. To grant the motion, California Rules of Court, rule 3.500(d) requires the Court to specify the reasons supporting a finding that the transfer will promote the ends of justice, with reference to the following standards: (1) The actions are not complex; (2) Whether the common question of fact or law is predominating and significant to the litigation; (3) The convenience of the parties, witnesses, and counsel; (4) The relative development of the actions and the work product of counsel; (5) The efficient utilization of judicial facilities and staff resources; (6) The calendar of the courts; (7) The disadvantages of duplicative and inconsistent rulings, orders, or judgments; and (8) The likelihood of settlement of the actions without further litigation should coordination be denied. (See also Code Civ. Proc. § 404.1.) Procedural Requirements The motion is supported by the declaration of Defendants counsel, Berit Fitzsimmons, which states the cases are not complex, (Fitzsimmons Decl. ¶¶ 7, 13), Defendant attempted to obtain an agreement for the transfer, (Id. ¶ 3), and Defendant notified the parties of their obligation to disclose information concerning any other motions to transfer that would be affected by granting the instant motion. (Id. ¶ 4.) The declaration addresses the requirements of California Rules of Court, rule 3.500(c). The Actions Are Not Complex The Court finds the actions are not complex within the meaning of California Rules of Court, rule 3.400, which the parties do not contest. (Cal. R. Ct., rule 3.500(d)(1); Mot. at 10:10-12:6.) The cases are largely breach of contract cases related to the repayment of loans. The two cases will not require exceptional judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and promote effective decision making by the court, the parties, and counsel, (Cal. R. Ct., rule 3.400(a)), as they are not likely to require numerous pretrial motions raising difficult or novel legal issues, do not involve a large number of witnesses, documentary evidence, or separately represented parties, and are not likely to require substantial postjudgment judicial supervision. (Cal. R. Ct., rule 3.400(b).) Predominating and Significant Common Questions of Law and Fact The two actions involve predominating and significant common questions of law and fact. (Cal. R. Ct., rule 3.500(d)(2).) The cases involve many of the same parties and the same underlying facts. As noted by Defendant, both cases will require interpretation and evaluation of the Letter of Intent, which will determine the dispute in the interpleader action and is a significant agreement in 24STCV02587. The Court finds the cases share common questions of fact or law that are predominating and significant to the litigation, which weighs in favor of transfer and consolidation. Convenience of Parties, Witnesses, and Counsel Counsel for the parties are located closer to Los Angeles than Santa Barbara and multiple parties and witnesses to both cases are located in Los Angeles. (Fitzsimmons Decl. ¶ 5; FAC ¶¶ 17, 20-23, 32; Fitzsimmons Decl. Ex. 2 ¶¶ 10, 12-15.) The FAC alleges Pacific Consolidated Holdings Group operates in Los Angeles and executed loan agreements at issue in Los Angeles. (FAC ¶¶ 5, 10, 26, 32.) Additionally, no party has opposed the transfer. Based upon the pleadings and available evidence, the convenience of the parties, witnesses, and counsel appears to weigh in favor of transfer and consolidation. (Cal. R. Ct., rule 3.300(d)(3).) Development of Actions, Work Product, Use of Judicial Facilities and Staff Resources, and Apparent Court Calendars The two cases arise, in part, out of the same loan agreements. Efficient utilization of judicial facilities and staff resources is promoted by having both cases in a single superior court. The two cases were filed two months apart and remain in the relatively early stages of litigation with demurrers filed in both actions. (Fitzsimmons Decl. ¶¶ 7-16.) The relative development of the actions and the work product of counsel, (Cal. R. Ct., rule 3.300(d)(4)), the efficient utilization of judicial facilities and staff resources, (Cal. R. Ct., rule 3.300(d)(5)), and the apparent court calendars, (Cal. R. Ct., rule 3.300(d)(6)), weigh in favor of transfer and consolidation. Inconsistent and Duplicative Rulings The Court also considers [t]he disadvantages of duplicative and inconsistent rulings, orders, or judgments. (Cal. R. Ct., rule 3.500(d)(7).) Because both cases involve claims related to the Letter of Intent, there will be an opportunity for inconsistent or duplicative rulings if the two cases remain pending in separate superior courts. Duplicate proceedings waste judicial resources and inconsistent rulings could result in significant confusion and protracted motion practice. Moreover, inconsistent rulings regarding the enforceability of the Letter of Intent should be avoided. The Court finds the disadvantages of duplicative and inconsistent rulings, orders, or judgments by having the two cases proceed separately weigh in favor of transfer and consolidation. Likelihood of Settlement California Rules of Court, rule 3.500(d)(8) requires the Court to consider [t]he likelihood of settlement of the actions without further litigation should coordination be denied. Both cases are in the early stages and it does not appear the transfer will impact the likelihood of settlement. Granting the motion and having the cases proceed before a single judicial officer reduces uncertainty and variation in the litigation, which would tend to aid settlement discussions. The Court finds this factor weighs in favor of transfer and consolidation as well. On balance, the Court finds the relevant factors demonstrate the ends of justice will be promoted by transfer and consolidation of the two actions in Los Angeles County. Accordingly, the Court orders Santa Barbara Superior Court Case 24CV01682 Pacific Dutch Group v. OBM PDG transferred to the Los Angeles Superior Court for consolidation with 24STCV02587. The Court Consolidates the Actions for Trial Defendant requests the Court consolidate the actions for all purposes. (Mot. at 2:1-2.) However, as cited by Defendant, Code of Civil Procedure section 403 permits [t]he court to which a case is transferred may order the cases consolidated for trial pursuant to Section 1048 without any further motion or hearing. Section 1048(a) provides [w]hen actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. The Court consolidates the actions for trial without prejudice to the parties or assigned judicial officer determining that consolidation for all purposes is preferable or, at a later stage in the litigation, that consolidation for trial is no longer appropriate.
Ruling
MARIA ELENA FERNANDEZ SANCHEZ VS. FCA US LLC, ET AL
Aug 12, 2024 |CGC24612076
Matter on the Discovery Calendar for Monday, August 12, 2024, Line 4, PLAINTIFF MARIA FERNANDEZ SANCHEZ's Motion To Compel Further Responses To Plaintiff's Requests For Production Of Documents, Set One. Continued to September 18, 2024, on the court's motion. No JPT available. =(525)
Ruling
HOLY SHIRTS AND PANTS, LLC ET AL., VS O'GARA COACH COMPANY
Aug 16, 2024 |6/18/2022 |SC125609
Case Number: SC125609 Hearing Date: August 16, 2024 Dept: I The court will discuss the status with the parties. The court is in receipt of plaintiffs objection to the Referees Report and the response (and sanctions request) thereto. The court must agree with the referee here. Under the Code of Civil Procedure, there is discovery by right and discovery that must be requested by the court and ordered. Discovery by right can take place up to 30 days before the initial trial date. Motions related to that discovery can be made by right so long as they are to be heard no later than 15 days before the initial trial date. When the trial date moves, the discovery cut off dates do not move unless the court so orders. This case has been on the verge of trial before and there have been many trial dates. On March 2, 2023, the court granted a motion to continue the trial to July 22, 2024. The court stated that discovery already on the books could go forward, meaning that if it had already been properly served, it was not barred by the initial trial date. Other discovery, however, was subject to the cut-off based on the old trial date. One piece of outstanding discovery was a deposition that plaintiffs wanted to take of OGara in part to ascertain the specific bases for OGaras fraud cause of action alleged in the cross complaint. However, there were numerous objections at the deposition and a hearing was held before the discovery referee on that issue. On September 11, 2023, the discovery referee apparently proposed that instead or in aid of getting that information by way of deposition, plaintiffs ask a few specific, targeted special interrogatories. According to the transcript, both parties agreed. The court notes that OGaras counsel states that OGara never agreed but rather was ordered to so respond by the referee. That is not an accurate recitation of the transcript, nor does the court believe that the referee believed he had that authority. Had OGara wanted to object, it could have and should have done so. Instead, counsel affirmatively agreed to the procedure. Accordingly, plaintiffs served additional interrogatories and OGara responded. Plaintiffs were not satisfied with the responses and brought a motion to compel further responses. Although OGara objected, the referee agreed with plaintiffs and ordered further responses and the court approved the recommendation. Further responses were submitted and plaintiffs again did not believe the responses were adequate. That caused plaintiffs to bring another motion to compel further and seek non-monetary sanctions, including a terminating sanction. There was no meet and confer associated with reopening any discovery deadlines. That motion was filed on July 5, 2024, and the referee was apparently ready to hear it on an expedited basis. Plaintiffs claim that they tried to file on July 2, 2024, but were unable to do so through the courts reservation system. However, the referee had questions concerning his jurisdiction to decide that issue, which the court resolved by expressly giving him jurisdiction. The referee heard argument but ultimately decided he had to deny the motion on procedural grounds, and he issued a report and recommendation to that effect. The referee concluded that the time to bring a discovery motion had come and gone, and thus the motionbeing out of timecould not be heard. The referee also believed that plaintiffs had not conducted a sufficient meet and confer on that topic. The referee therefore recommends that the motion be denied on procedural grounds without reaching the merits. Plaintiffs object to the recommendation. Defendants support the recommendation but seek sanctions. The court agrees with much of plaintiffs position, but not enough. When the court continued the trial date to July 22, 2024, the time to complete the deposition was also extended. That deposition went forward in a timely manner. Implicit in the order allowing that deposition to be held is the notion that motions pertaining to that deposition also be subject to the new trial date. It would make no sense to allow the discovery to go forward but afford the party taking the deposition no way to enforce the order or be sure that the deposition was conducted properly. Thus, a motion to compel related to the deposition could be heard up to 15 days before the July 22, 2024 trial date. At the hearing, the referee suggested that interrogatories be propounded. Had there been an objection, the interrogatories would have been out of time and improper. But because both parties agreed to allow the interrogatories, they were not improper. OGara still contends that it never agreed to this but rather was ordered against its will. That is not how the court reads the transcript. It appears that the referee suggested a procedure, all parties agreed to it, and the referee based his order on that agreement. While it is true that there is an order, an order made on stipulation is fundamentally different than one made over objection. If the order is made over objection, the objections are preserved. If it is made on stipulation, objections (all objections) are waived. There is an interesting question whether the parties can stipulate in a binding way to extend the discovery cut off dates; there is at least an argument that they cannot. As a practical matter, almost any court would SO ORDER such a stipulation, thereby making it binding. But absent that step, there is a line of logic that suggests that the stipulation is no more than an agreement of the parties and not enforceable. While the referee did so order, one might contend that he lacked the power to do so. But all of that said, the parties can, by stipulation, extend the referees authority somewhat, and the court believes that such is precisely what happened here. When the referee asked the parties if they would agree to allow further interrogatories as a way of moving forward and both agreed, they allowed the referee to make an appropriate order to that extent without further court approval. It is too much of a trap for the unwary and a game to allow the parties to agree to a procedure that the referee orders based thereon and then have one party claim a gotcha moment claiming their fingers were crossed. Elementary notions of estoppel bar such a claim. Therefore, the court is of the view that the special interrogatories suggested by the referee on September 11, 2023, and agreed upon by the parties, were subject to the cut off based on the July 22, 2024, trial date. That means that motions related to those interrogatories were governed by the later cut off date as well. And that is where the problem lies. With an operative trial date of July 22, 2024, the motion had to be heard no later than July 8, 2024 (assuming that it is the following Monday rather than the preceding Friday that is the cut off where the 15th day is a Sunday). To have such a motion timely heard would require that it be filed no later than June 12, 2024, if served personally. If that motion were timely filed, one could make a Sentry type argument that the court had an obligation to hear it notwithstanding its calendar. But if the motion were made after June 12, 2024, then the motion is out of time. True, an application to hear the motion on shortened time could be made, but that application need not be granted of right. That would be a matter within the courts discretion. Here, the motion was filed on July 5, 2024well after the last day to file the motion and have a right to have it heard. (Note that it is the hearing date that counts, not the filing date.) An ex parte application to refer the motion to the referee and have it heard on shortened time was filed on July 10, 2024, but by then it was already too late. (OGara also argues that the motion was untimely because it was not filed within the 45 day period allowed for motions to compel further. The last day to file such a motion would have been July 2, 2024. Plaintiffs state that they tried to file on that date, but the court rejected the filing. Because the court finds that it was untimely anyway, the court need not decide whether the 45 day period is extended where a party attempts to file in a timely manner but the filing is rejected and whether the answer to that question depends on the reasons for the rejection and how those reasons would apply here.) Thus, the court must agree with the referee. For plaintiffs to have their motion heard after the discovery cut off date, they had to bring a motion to extend the time to have such motions heard or re-open discovery in that way. The court would then need to consider such a request using the factors set forth in the Code and case law. Under Pelton-Shepard, such a motion, if then granted, might have been enough. But no such motion was made, and the court agrees with the referee that the Pelton-Shepherd requirements are not optional. Because there was no such timely motion made, the referee was without power to consider the motions merits, and this court is without power as well. OGara wants the court to go a step further and sanction plaintiffs for bringing the motion. The court believes that there was enough nuance and confusion such that there was substantial justification for the motion procedurally, and thus will not impose sanctions. In short, the court accepts the referees report and recommendation and the objections of both parties (plaintiffs objections to the merits of the recommendation and OGaras objection to the failure to award sanctions) are OVERRULED. The referees decision is APPROVED AS THE ORDER OF THE COURT. (The court appreciates the Shakespeare quote, although the opposition was 12 pagesnot quite a paragon of brevity.) In light of that, the court will discuss aspects of the upcoming trial and rulings in limine.
Ruling
Michael A. Thompson et al vs. Kamajie Miller et al
Aug 17, 2024 |CU24-05339
CU24-05339Petition to Compel ArbitrationTENTATIVE RULINGPlaintiffs’ petition to compel arbitration is denied without prejudice.Plaintiffs have failed to establish that Defendant has refused to arbitrate. (Mansouri v.Superior Court (2010) 181 Cal.App.4th 633, 641-642.) The court notes that Plaintiffs,not Defendant, initiated this action by filing the complaint for damages and, althoughPlaintiffs claim to have made a demand to arbitrate the matter (Decl. of Thompson, ¶19), they make no attempt to show that Defendant refused this demand however it mayhave been made.
Ruling
MEMBERS 1ST VS. ESTATE OF SMITH, ET AL.
Aug 16, 2024 |CVG21-0000494
MEMBERS 1ST VS. ESTATE OF SMITH, ET AL.Case Number: CVG21-0000494Tentative Ruling: Plaintiff Members 1st Credit Union moves for an award of attorney’s fees in the amount of$23,666.00 pursuant to Civil Code Section 1717. In reviewing the file, the Court previously noted defects withthe pleadings and service which may affect the Court’s jurisdiction and its prior judgment. Accordingly, theCourt requested supplemental briefing on the jurisdictional issue. Plaintiff has submitted Supplemental Briefingwhich has been reviewed by the Court. Both the jurisdictional issue and the motion for attorney’s fees areaddressed below.Jurisdiction: The Complaint in this action was filed on April 14, 2021. It names two separate Defendants, theEstate of Dennis Linwood Smith, and Virginia E. Smith. It does not name the Personal Representative of theEstate of Dennis Linwood Smith as a Defendant. An estate is not a legal entity, it is merely a name to indicatethe sum of assets and liabilities of a decedent. Bright’s Estate v. Western Air Lines (1951) 104 Cal.App.2d 827,828. An estate can neither sue nor be sued. Id. at 829. For these reasons, Plaintiff was required to file suit againstthe Personal Representative of the Estate but did not do so.Additionally, the Estate was purportedly served on May 3, 2021 on Virgina E. Smith as the “Registered Agent”of the Estate. Estates do not have Registered Agents. The Court takes judicial notice of the filing in the Estateof Dennis Linwood Smith (Case No. 30929). Virgina E. Smith was appointed as Personal Representative of theEstate in that proceeding on June 14, 2021, after she was served. Therefore Virgina E. Smith was not the PersonalRepresentative at the time of service and had no authority to act on behalf of the Estate. A fact made clear byVirgina Smith’s answer filed in this action on May 28, 2021, again before her appointment as PersonalRepresentative. The answer was made on behalf of herself as “an individual.” It also pointed out on multipleoccasions that there was a separate Estate proceeding being pursued and that no Personal Representative had yetbeen appointed.Based on the foregoing, the Court had concerns related to whether it obtain personal jurisdiction over Ms. Smithas the Personal Representative of the Estate of Dennis Linwood Smith. If the Court did not have personaljurisdiction, the prior judgment would have been void. See Lee v. An (2008) 168 Cal.App.4th 558 (improperservice of a summons and complaint results in a lack of personal jurisdiction over the defendant, and thus anyensuing default or judgment entered against the defendant is void.). As noted above, the Personal Representativewas never appropriately named in the Complaint and Ms. Smith was never adequately served in her capacity asthe Personal Representative. Ms. Smith did appear at the trial on October 11, 2023 purportedly on her behalf andas the Personal Representative of the Estate. Ms. Smith stipulated to a specific judgment against both herself, asan individual, and as against the Estate. Generally, one who is not named in the complaint is not a properdefendant and not a party to an action. Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114Cal.App.4th 1135, 1145. However, a party may appear in an action even though they are not named in thecomplaint. Id. at 1146. A voluntary appearance is a waiver of any failure to name that party in the complaint.Farmers & Merchants Nat. Bank of Los Angeles v. Peterson (1936) 5 Cal.2d 601, 606. The Court finds that Ms.Smith voluntarily appeared as the Personal Representative at the trial on October 11, 2023, and therefore waivedany defect based on Plaintiff’s failure to properly name the Personal Representative in the Complaint. As for thelack of service, Ms. Smith’s voluntary appearance as Personal Representative on behalf of the estate waived anydefects in service. A general appearance is the equivalent to service of the summons. Dial 800 v. Fesbinder(2004) 118 Cal.App.4th 32, 52. “A general appearance operates as a consent to jurisdiction of the person,dispensing with the requirement of service of process, and curing defects in service.” Id.; citing 2 Witkin, Cal.Procedure (4th ed. 1996) Jurisdiction, § 190, p. 756). “A general appearance occurs when the defendant takespart in the action or in some manner recognizes the authority of the court to proceed.” Dial 800, supra 118Cal.App.4th at 52. “A general appearance occurs where a party, either directly or through counsel, participates inan action in some manner which recognizes the authority of the court to proceed. It does not require any formalor technical act.” Id. Here, Ms. Smith appeared on behalf of the Estate at trial and agreed to the Court’s entry ofa judgment against herself and against the Estate. Ms. Smith undoubtedly recognized the authority of the Courtto proceed and requested affirmative relief in the form of a stipulated judgment. Based on the foregoing, theCourt finds that Ms. Smith appeared as the personal representative and made a general appearance excusing theneed for service. The Court finds that it had personal jurisdiction over Ms. Smith both as an individual and as thePersonal Representative as the Estate. The judgment is valid.Attorney’s Fees: By stipulation of the parties, the Court has already issued a judgment that attorney’s fees arerecoverable by Plaintiff. The attorney’s fees are based on a contract which was executed by the Decedent.Therefore, attorney’s fees will only be awarded against the Estate.Civil Code § 1717 entitles a prevailing party on a contract to “reasonable attorney’s fees” as fixed by the court.Plaintiff bears the burden of establishing the reasonableness of the fees sought. CCP § 1033.5(c)(5). “[T]he feesetting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expendedmultiplied by the reasonable hourly rate.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “A courtassessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the timespent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.’” (Ketchumv. Moses (2001), 24 Cal.4th 1122, 1131-1132.) The lodestar figure may then be adjusted upward or downward bythe court based on a number of factors. (Ibid.) Roe v. Halbig (2018) 29 Cal.App.5th 286, 310. Adjustment factorsthat may be considered in awarding a multiplier include: 1) the novelty and difficulty of the questions involved,2) the skill displayed in presenting them, 3) the extent to which the litigation precluded other employment, 4) thecontingent nature of the fee award. Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324,348. In determining the amount of attorney's fees to which a litigant is entitled, an experienced trial judge is thebest judge of the value of professional services rendered in his or her court. Granberry v. Islay Investments (1995)9 Cal.4th 738, 752.Here, the Declaration of Laurel Adams provides the evidentiary basis for the attorney’s fees. Ms. Adamsidentifies hourly rates in the range of $290 to $300. The Court finds the hourly rates to be reasonable for thiscommunity and will be awarded. The paralegal rates, however, are excessive. Their rates are from $195 to $250an hour. The Court has not awarded such high paralegal rates in any prior action. The Court finds that areasonable paralegal hour rate is $100 per hour. As for the number of hours, no opposition has been filed and areview appears to show that billing descriptions are reasonable and related to the litigation. Accordingly, theCourt finds the number of hours requested to be reasonable.
Ruling
RICHARD CASTELLANO, ET AL. VS GENERAL MOTORS LLC, A DELAWARE LIMITED LIABILITY COMPANY
Aug 14, 2024 |23STCV02474
Case Number: 23STCV02474 Hearing Date: August 14, 2024 Dept: 32 ALONZO CORNELIUS AVERA, Plaintiff, v. 1645 NW, LLC, et al., Defendants. Case No.: 24STCV02474 Hearing Date: August 14, 2024 [TENTATIVE] order RE: deffendant houston hospitality llcs motion to set aside default BACKGROUND On June 25, 2024, Plaintiff Alonzo Cornelius Avera filed this action for negligence and premises liability against Defendant 1645 NW, LLC and Does 1 through 100. On June 13, 2024, Plaintiff filed a request for entry of default against Defendant Houston Hospitality LLC (Doe 4). The request was rejected on June 14, 2024. On June 25, 2024, Defendant Houston Hospitality LLC filed the instant motion to set aside default. CONCLUSION The motion is moot because no default has been entered against this Defendant. Defendant shall file a responsive pleading within 5 days of this order.
Ruling
ALEN COHEN, ET AL. VS MOSHE ZEMACH, ET AL.
Aug 13, 2024 |22VECV01536
Case Number: 22VECV01536 Hearing Date: August 13, 2024 Dept: W ALEN COHEN, et al. v. MOSHE ZEMACH, et al. PLAINTIFFS MOTION TO COMPEL THE FURTHER DEPOSITION OF DEFENDANT expert decking & waterproofing, inc.s person(s) most qualified and production of documents Date of Hearing: August 13, 2024 Trial Date: September 23, 2024 Department: W Case No.: 22VECV01536 Moving Party: Plaintiff Alen Cohen Responding Party: Defendant Expert Decking & Waterproofing, inc. BACKGROUND On October 11, 2022, Plaintiffs Alen Cohen and Nastran Cohen filed a complaint against Defendants Moshe Zemach, David Zemach, Maya Librush, Oded Zemach, Livinit Up, LLC, UrbinoConstruction Services LLC, IO Lifetime Builders, Inc., Chai Group, LLC, Serrano Demolition, Inc., Expert Decking and Waterproofing Experts, Inc. and The Ohio Casualty Insurance Company asserting causes of action for (1) Breach of Contract; (2) Breach of Contract; (3) Negligence; (4) Negligence; (5) Negligence; (6) Breach of Express Warranty; (7) Breach of Implied Warranty; (8) Violations of Civil Code Sections 895, et seq.; (9) Intentional Misrepresentation; (10) Negligent Misrepresentation; (11) Promissory Fraud; (12) Breach of Contract; (13) Breach of Contract; (14) Recovery on Contractors Bond; (15) Declaratory Relief; and (16) Rescission. Plaintiffs filed a first amended complaint on March 21, 2023. On June 20, 2023, Plaintiffs dismissed their ninth and tenth causes of action against Oded Zemach, UrbinoConstruction Services, LLC, IO Lifetime Builders, Inc., and Chai Group LLC. Plaintiffs allege Defendants LivinIt Up, LLC, Moshe Zemach, David Zemach, Maya Librush, Oded Zemach, UrbinoConstruction Services, LLC, IO Lifetime Builders, Inc., and Chai Group, LLC (Zemach Defendants) misrepresented the condition of certain real property sold to Plaintiff. The Zemach Defendants purchased the real property in 2015 and had substantially remodeled the property. Plaintiffs further allege Serrano Demolition was not a licensed contractor nor otherwise qualified to perform the required work and caused damaged to the property. Plaintiffs further allege Defendant Expert Decking and Waterproofing not only delayed substantial completion of its scope of work, Defendant Expert Decking also defectively and negligently performed its work causing Plaintiffs to sustain even further damages. On January 3, 2023, Expert Decking and Watering Proofing, Inc. filed a cross-complaint against Roes 1 -100 for (1) equitable indemnity; (2) contribution; (3) comparative fault; and (4) declaratory relief. The Ohio Casualty Insurance Company filed a cross-complaint on February 24, 2023 against Expert Decking, Alen Cohen, and Nastran Cohen for interpleader. Moshe Zemach, David Zemach, and Livinit Up filed a cross-complaint against Serrano Demolition, Inc., Expert Decking and Water Proofing, Inc. and James West on April 21, 2023 for equitable indemnity, contribution, declaratory relief. [Tentative] Ruling Plaintiff Alen Cohens Motion to Compel the Further Deposition of Defendant Expert Decking & Waterproofing, Inc.s Person(s) Most Qualified and Production of Documents is GRANTED, in part. discussion Plaintiff Alen Cohen requests the Court make the following Order: Defendant Expert Decking & Waterproofing, Inc. (Expert Decking) to (1) Produce for oral examination its PMQ, who is adequately prepared to testify on all 54 Topics set forth in Plaintiffs Amended Notice of Taking the Deposition of Defendants PMQ and Request for Production of Documents (Notice); (2) Conduct a diligent search and reasonable inquiry for all documents responsive to the Notices Requests for Production of Documents Nos. 1-23 (Requests); (3) Produce all documents that are responsive to the Requests by August 15, 2024; (4) Produce Jesus Vargas for his continued oral examination on either August 19, 2024 or August 21, 2024; (5) Serve complete, verified code-compliant responses to the Notice, including each of the Requests, without any objections, concurrently with producing all documents responsive to the Requests on August 15, 2024; and (6) Require defense counsel to affirm, under oath and on August 15, 2024, that no documents have been withheld from production and attesting to his and his clients efforts to locate and produce all documents responsive to the Requests. Plaintiff also seeks an order imposing monetary sanctions in the amount of $7,350.00 against Defendant. In opposition, Expert Deckings Counsel submits a limited opposition asserting: (1) It has been working with Expert Decking to comply with the Production of Documents and production of further PMQs to satisfy the Notice; (2) Mr. Vargas was produced on behalf of Expert Decking for Deposition on May 15, 2024 as he is the PMQ for the majority of the topics; (3) on July 23, 2024, Expert Decking served a complete response to the Document Requests in the Deposition Notice along with over 200 pages of responsive documents; (4) upon resignation of Expert Deckings former counsel, current counsel for Expert Decking discovered emails which contained additional documents necessary to respond to the production requests in the PMQ deposition notice, but unfortunately, they were never sent; and (5) the newly discovered documents were sent on July 23, 2024. Expert Decking submitted a supplemental declaration on August 8, 2024 asserting they have now provided Plaintiffs counsel with the identification of the PMQ's from Expert Decking in response to each of their 54 with available dates for those individual's depositions. Based on the record before the Court, it appears Expert Decking must still produce responsive documents to the Requests, namely individual photos and videos of the Project and Property. Expert Decking is ordered to produce such documents within 20 days. Expert Decking must also confirm whether a diligent search and reasonable inquiry has been done for all responsive documents. Expert Decking has now provided who will be the PMQ for what topic and what dates are available. At the time of the hearing, the parties are to inform the Court whether they have now agreed upon date and time for Mr. Vargas and Mr. Hadad to sit for their depositions. As for Plaintiffs request for sanctions, the Court GRANTS Plaintiffs request for monetary sanctions in the reduced amount of $3,900.00 (5 hours preparing the motion and supporting documents at Mr. Geylikmans rate and 1 hour for Mr. Fosters work on the motion at his hourly rate of $900.00).
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