LAW FIRM OF HAROLD GREENBERG VS DAVID SHENKY

Tentative Rulings

Case Number: 20STLC00338    Hearing Date: April 15, 2021    Dept: 25

HEARING DATE: Thu., April 15, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Law Firm of Harold Greenberg v. Shenky COMPL. FILED: 01-13-20

CASE NUMBER: 20STLC00338 DEFAULT: 04-27-20

PROCEEDINGS: MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT AND TO QUASH SERVICE OF SUMMONS

MOVING PARTY: Defendant David Shenky

RESP. PARTY: Plaintiff The Law Firm of Harold Greenberg

MOTION TO SET ASIDE/VACATE DEFAULT

(CCP § 473 (b), (d); 473.5)

TENTATIVE RULING:

Defendant David Shenky’s Motion to Set Aside Default and Default Judgment is CONTINUED TO JUNE 3, 2021 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must file a proof of service demonstrating Plaintiff was given adequate notice of the continued hearing. Failure to do so will result in the Motion being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on December 28, 2020 [ ] Late [ ] None

REPLY: None filed as of April 12, 2021 [ ] Late [X] None

ANALYSIS:

1. Background & Discussion

On January 13, 2020, Plaintiff Law Firm of Harold Greenberg (“Plaintiff”) filed an action for breach of contract and common counts against Defendant David Shenky (“Defendant”). Following Defendant’s failure to respond to the Complaint, default was entered against him on April 27, 2020. Defendant attempted to file an Answer, in pro per, despite being in default, on May 5, 2020. A default judgment of $14,099.43 was entered against Defendant on May 27, 2020.

On August 18, 2020, Defendant filed the instant Motion to Set Aside Default and Default Judgment and to Quash Service of Summons (the “Motion”).

On August 24, 2020, Defendant filed an ex parte application to advance the hearing date for the Motion. On August 25, the Court denied Defendant’s ex parte application, finding he had failed to provide any evidence that he would suffer irreparable harm or immediate danger if the application was not granted. (8/25/20 Minute Order.)

Defendant filed a second ex parte application to advance the hearing on the Motion on August 28, 2020. Defendant argued, in part, that he urgently needed to refinance his properties to avoid bankruptcy and that he could not refinance his properties with the default judgment in place. (8/28/20 Ex Parte App., p. 4.) The Court denied the second ex parte application, finding it to be “less than credible” on September 9, 2020. (9/9/20 Minute Order.) A hearing on an Order to Show Cause re Why Sanctions Should not be Imposed on Defendant was scheduled for October 14, 2020. (Id.) After hearing oral argument from both parties at the October 14 hearing, the Court took the matter under submission. On November 10, 2020, the Court issued a ruling ordering Defendant to pay Plaintiff sanctions of $3,736.26. (11/10/20 Minute Order; 11/20/20 Nunc Pro Tunc Order.)

On December 28, 2020, Plaintiff filed an opposition to this Motion. No reply brief was filed.

The hearing on the Motion was scheduled for February 16, 2021. On February 15, pursuant to Defendant’s request, the hearing on the motion was rescheduled to April 15, 2021 at 10:00 a.m.

To date, Defendant has not filed a proof of service demonstrating Plaintiff was given notice of the continued hearing. The Court cannot issue a ruling until Plaintiff has been given appropriate notice. Thus, Defendant is ordered to file a proof of service demonstrating proper notice of the next scheduled hearing on Plaintiff.

1. Conclusion & Order

For the foregoing reasons, Defendant David Shenky’s Motion to Set Aside Default and Default Judgment is CONTINUED TO JUNE 3, 2021 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant must file a proof of service demonstrating Plaintiff was given adequate notice of the continued hearing. Failure to do so will result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.

Case Number: 20STLC00338    Hearing Date: February 16, 2021    Dept: 25

Case Number: 20STLC05229    Hearing Date: February 16, 2021    Dept: 25

HEARING DATE: Tue., February 16, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Susan Barilich PC v. Duffy, et al. COMPL. FILED: 06-22-20

CASE NUMBER: 20STLC05229 DISC. C/O: 11-20-21

PROCEEDINGS: MOTION FOR CHANGE OF VENUE AND TRANSFER OF ACTION

MOVING PARTY: Defendants Anthony C. Duffy and Law Offices of Anthony C. Duffy, Inc.

RESP. PARTY: Plaintiff Susan Barilich, P.C.

MOTION FOR CHANGE OF VENUE

(CCP §§ 395, 396)

TENTATIVE RULING:

Defendants Anthony C. Duffy and Law Offices of Anthony C. Duffy, Inc.’s Motion for Change of Venue is DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on February 1, 2021 [ ] Late [ ] None

REPLY: None filed as of February 9, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On June 22, 2020, Plaintiff Susan Barilich, P.C. (“Plaintiff”) filed an action for breach of contract, account stated, open book account, quantum meruit, fraud, and unjust enrichment against Defendants Anthony Duffy (“Duffy”) and Law Offices of Anthony Duffy (“Law Offices”) (collectively, “Defendants”).

On August 5, 2020, Defendants filed the instant Motion for Change of Venue and Transfer of Action (the “Motion”). Plaintiff filed an Opposition on February 1, 2021. No reply brief has been filed.

1. Evidentiary Objections

Plaintiff’s objections to Defendant Duffy’s declaration are OVERRULED as to Objections 1-10 and 12, and SUSTAINED as to Objection No. 11.

1. Legal Standard & Discussion

This action arises from Defendants’ alleged failure to compensate Plaintiff for legal services provided in February and March 2020 in McKinley v. McKinley, a case pending in Orange County Superior Court. (Compl., ¶¶ 8, 17, 20.) Defendants seek to transfer this action to Orange County. (Mot., p. 4:10-26.)

“Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action…Subject to subdivision (b), if a defendant has contracted to perform an obligation in a particular county, the superior court in the county where the obligation is to be performed, where the contract in fact was entered into, or where the defendant or any defendant resides at the commencement of the action is a proper court for the trial of an action founded on that obligation, and the county where the obligation is incurred is the county where it is to be performed unless there is a special contract in writing to the contrary.” (Code Civ. Proc., § 395, subd. (a).)

A defendant “corporation or association may be sued in the county where the contact is made or is to be performed, or where the obligation or liability arises, or the breach occurs, or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases.” (Code Civ. Proc., § 395.5.)

“[I]f an action or proceeding is commenced in a court having jurisdiction over the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers…or at his or her option, without answering…and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with a proof of service, upon the adverse party, or a copy of those papers.” (Code Civ. Proc., § 396b, subd. (a).) If, at the hearing, it appears that the action was not brought in the proper court, the action will be transferred to the proper court. (Id.) “[I]t is the moving defendant’s burden to demonstrate that the plaintiff’s venue selection is not proper under any of the statutory grounds.” (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.)

Defendants seek to transfer this action to Orange County because Defendant Duffy is now and has always been a resident of orange county and because Defendant Law Offices has always been located in Orange County. (Mot., p. 4:10-26, p. 5:5-13, Duffy Decl., ¶¶ 3, 4.) Defendants argue (1) that Plaintiff appeared and performed as trial co-counsel in Orange County; (2) that Defendants agreed to the co-counsel arrangement with Plaintiff at Defendants’ Huntington Beach offices; and (3) that Defendant Duffy, as an individual defendant, “has the right to change the venue to the county of his or her residence even if the action [is] brought in a county in which the corporate defendants may be sued.” (Mot., pp. 5:21-24, 6:10-11; p. 9:17-21.)

“Generally (but with numerous exceptions) when the main relief sought in a case does not relate to rights in real property, ‘the superior court where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action.’ (§ 395, subd. (a).) When a case is founded on a contractual obligation, venue is also proper ‘where the contract was in fact entered into.’ [Citation.]” (K.R.L Partnership v. Superior Court (2004) 120 Cal.App.4th 490, 496-97.) “The place of making a contract is where the last act necessary to the validity and binding effect thereof is performed. This “last act” is usually acceptance of the offer.” (Mitchell v. Superior Court (1986) 186 Cal.App.3d 1040, 1045; See also Wilson v. Scannavino (1958) 159 Cal.App.2d 369, 370-71.)

Here, Plaintiff presents evidence that on January 24, 2020, Defendant sent Plaintiff an email stating Defendant’s firm was seeking the assistance of an attorney in handling three matters, including the McKinley case. (Oppo., Barilich Decl., ¶ 5, Exh.C.) In that email, Defendant Duffy informed Plaintiff he would enjoy working with her and appreciated her skills and experience. (Id.) Defendant then asked Plaintiff for a response so they could discuss and arrange the financial terms. (Id.) Plaintiff contacted Defendant Duffy later that day via telephone from her Los Angeles office to accept the offer to collaborate and agreed on payment terms. (Id., p. 8:21-24, Barilich Decl., ¶ 5, Exh. C.) Thus, because acceptance occurred in Los Angeles, Defendants entered into a contract in Los Angeles County, making it a proper county for this action under Code of Civil Procedure section 395, subdivision (a).

Defendant argues that when a plaintiff sues both an individual and a corporate defendant, the individual has the right to change venue to his or her county of residence even if the action was brought in a county where the corporate defendants may be sued. (Mot., p. 9:17-21.) However, because Defendant Duffy, as an individual, entered into a contract that was accepted by Plaintiff in Los Angeles, venue is proper in Los Angeles. As noted above, Code of Civil Procedure section 395, subdivision (a) expressly provides that, in actions involving a contract, the county in which the Defendant resides or where the contract was entered into is proper.

Very briefly, Defendants argue that the Court may order an action transferred “when the convenience of witnesses and the ends of justice would be promoted by the change.” (Mot., p. 10: 19-21.) However, Defendants’ brief discussion does not demonstrate how ends of justice would be promoted by transferring this action, which has been brought in a proper venue under Section 395, subdivision (a).

1. Conclusion & Order

For the foregoing reasons, Defendants Anthony C. Duffy and Law Offices of Anthony C. Duffy, Inc.’s Motion for Change of Venue is DENIED.

Moving party is ordered to give notice.