On 07/25/2019 VIDEO SYMPHONY, LLC filed a Contract - Debt Collection lawsuit against JASON WHITTON. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is ROBERT SCHUIT. The case status is Pending - Other Pending.
*******8878
07/25/2019
Pending - Other Pending
Los Angeles County Superior Courts
Spring Street Courthouse
Los Angeles, California
ROBERT SCHUIT
VIDEO SYMPHONY LLC
FLANAGAN MICHAEL GERARD
WHITTON JASON
FLANAGAN MICHAEL
FLANAGAN MICHAEL GERARD
BUTLER AIDAN WOODWARD
Court documents are not available for this case.
Hearing04/15/2021 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial
DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by: Clerk
DocketCase reassigned to Spring Street Courthouse in Department 25 - Hon. James E. Blancarte; Reason: Challenge / Recusal, by Defendant
DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by: Jason Whitton (Defendant); Judge Name: Serena R. Murillo
DocketUpdated -- Challenge To Judicial Officer - Peremptory (170.6): Filed By: Jason Whitton (Defendant); Result: Granted; Result Date: 12/07/2020; As To Parties: removed
DocketCertificate of Mailing for (Court Order Re: Peremptory Challenge to Judicial Officer) of 12/07/2020; Filed by: Clerk
DocketMinute Order (Court Order Re: Peremptory Challenge to Judicial Officer)
DocketUpdated -- 04/15/2021 Non-Jury Trial: Location changed from Department 26 to Department 25
DocketAnswer; Filed by: Michael Gerard Flanagan (Cross-Defendant); As to: Jason Whitton (Cross-Complainant)
DocketNotice of Ruling; Filed by: Video Symphony, LLC (Cross-Defendant)
DocketUpdated -- Event scheduled for 07/30/2020 at 08:30 AM in Chatsworth Courthouse at Department F43 Type changed from Order to Show Cause Re: Failure to File Proof of Service and Failure to File Default Judgment Pursuant to CRC 3.740 to Non-Jury Trial
DocketAnswer; Filed by: Jason Whitton (Defendant); As to: Video Symphony, LLC (Plaintiff)
DocketOrder to Show Cause Re: Failure to File Proof of Service and Failure to File Default Judgment Pursuant to CRC 3.740 scheduled for 07/30/2020 at 08:30 AM in Chatsworth Courthouse at Department F43
DocketCase assigned to Hon. Robert Schuit in Department F43 Chatsworth Courthouse
DocketComplaint; Filed by: Video Symphony, LLC (Plaintiff); As to: Jason Whitton (Defendant)
DocketSummons on Complaint; Issued and Filed by: Video Symphony, LLC (Plaintiff); As to: Jason Whitton (Defendant)
DocketCivil Case Cover Sheet; Filed by: Video Symphony, LLC (Plaintiff); As to: Jason Whitton (Defendant)
DocketOrder to Show Cause Hearing/Trial Date (Cal. Rules of Court, rule 3.740); Filed by: Clerk
DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk
DocketThe case is placed in special status of: Collections Case (CCP 3.740)
Case Number: 19CHLC28878 Hearing Date: November 05, 2020 Dept: 26
Video Symphony, LLC v.
Whitton, et al. DEMURRER (CCP §§ 430.31,
et seq.) TENTATIVE RULING: Cross-Defendants Video Symphony, LLC and Michael Gerard
Flanagan’s Demurrer to the Cross-Complaint is OVERRULED AS TO THE FIRST CAUSE
OF ACTION AND SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE SECOND AND THIRD CAUSE
OF ACTION. ANALYSIS: On July 25, 2019,
Plaintiff Video Symphony, LLC (“VSLLC”) filed the instant action for breach of
loan agreement against Defendant Jason Whitton (“Whitton”). On December 19,
2019, Whitton filed the Cross-Complaint against Cross-Defendants VSLLC and Michael
Gerard Flanagan (“Flanagan”) (collectively “Cross-Defendants”) for (1) violation
of the Fair Debt Collection Practices Act; (2) unfair business practices; and
(3) declaratory relief. On February 21,
2020, Cross-Defendants filed the instant Demurrer to the Cross-Complaint. On
September 9, 2020, Whitton filed an opposition and Cross-Defendants replied on
October 15, 2020. Discussion The Demurrer demonstrates compliance with the requirements of Code of
Civil Procedure section 430.41. The demurring party is required to meet and
confer in person or telephonically at least five days before the responsive
pleading is due. (Code Civ. Proc., § 430.41, subd. (a).) The Demurrer is
accompanied by a declaration demonstrating a prior meet and confer effort. (Meet
and Confer Decl., filed 1/21/20.) Allegations in the Pleadings VSLLC’s Complaint alleges that it is an assignee of Video Symphony
EnterTraining, Inc., which was a TV, film and audio vocational college.
(Compl., ¶¶2-3.) Whitton allegedly entered into an educational services
contract and promissory note (“the Enrollment Agreement”) with VSE on March 10,
2011. (Id. at ¶¶4-5 and Exh. A.) VSE allegedly performed all obligations
required under the Enrollment Agreement until Whitton’s graduation in May 2012.
(Id. at ¶¶7-8 and Exh. B.) Whitton allegedly ordered optional equipment
from VSE that was not included with the program and agreed to authorize VSE to
apply his Federal Student Aid (“FSA”) funds toward payment for the items. (Id.
at ¶9 and Exh. C.) In order to cover the balance of the program cost that was
not covered by FSA and a down payment, Whitton allegedly signed two promissory
notes. (Id. at ¶¶10-13 and Exhs. D-F.) Following VSE’s receipt of FSA
and non-FSA payments, Whitton allegedly had an unpaid balance remaining on his
student account. (Id. at ¶¶15-19 and Exhs. G-H.) VSLLC brings a single
cause of action for breach of promissory note against Whitton and alleges the statute
of limitations is six years under Civil Code section 3118. (Id. at
¶¶21-28.) The Cross-Complaint alleges Whitton
was persuaded to sign the two loan documents that falsely created the illusion
that VSE had loaned him money for the program. (Cross-Compl., ¶¶8-9.) Whitton
alleges that the false loan documents were to cover up a tuition credit from
VSE and that in 2013, the Department of Education’s review of VSE reported
systematic non-compliance with applicable Title IV regulations. (Id. at ¶¶10-12.)
Despite being given an opportunity by the Department of Education to respond to
the report, VSE and Flanagan never did so. (Id. at ¶¶13-15.) VSE was then compelled to involuntary
bankruptcy. (Id. at ¶16.) Whitton brings claims for (1) violation of the
Fair Debt Collection Practices Act (“FDCPA”); (2) unfair business practices;
and (3) declaratory relief against Cross-Defendants. Demurrer to Cross-Complaint Insofar as Whitton’s opposition
does not address the second and third causes of action, the Court sustains the
Demurrer to the those causes of action without leave to amend. The first cause
of action for violation of the FDCPA is brought only against Flanagan. (Cross-Compl.,
p. 5:6-8.) Flanagan demurs to the first cause of action for failure to allege
facts sufficient to state any cause of action. (Code Civ. Proc., §430.10, subd.
(e).) The first cause of action broadly alleges that Flanagan violated the
FDCPA by, including, but are not limited to, using false representations and
deceptive, unfair and/or unconscionable means to collect a debt. (Cross-Compl.,
¶19.) The Cross-Complaint goes on to specify that these debt collection means
were violations of the FDCPA because the Complaint in this action was filed
after the four-year statute of limitations for breach of promissory notes had
run. (Id. at ¶20.) According to the Cross-Complaint, “Whitton’s breach
well preceded four years before the July, 2019, filing of [VSLLC]’s lawsuit.” (Ibid.)
The Complaint, on the other hand,
makes different allegations regarding the statute of limitations. Specifically,
that Whitton was to make payments from May 20, 2012 to May 20, 2016 pursuant to
the schedule in the loan documents. (Compl., Exh. D.) The date of breach,
therefore, is alleged by the Complaint to be May 20, 2016 as of which Whitton
had an outstanding balance on his student account. (Id. at ¶28.) The
Demurrer reiterates the allegation in the Complaint that the cause of action
for breach of promissory note is subject to a six-year statute of limitations
under Civil Code section 3118. (See ibid.) Due
to the fact that the pleadings make contradictory allegations regarding the
applicable statute of limitations, the Court cannot find that the Complaint is
not barred by the statute of limitations without making a factual
determination, which would inappropriate on demurrer. Resolution of the statute
of limitations requires a determination of the date of Whitton’s alleged breach
of the loan agreement, which is more suited to a motion for summary judgment. Conclusion Based on the foregoing, Cross-Defendants Video Symphony, LLC
and Michael Gerard Flanagan’s Demurrer to the Cross-Complaint is OVERRULED AS
TO THE FIRST CAUSE OF ACTION AND SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE
SECOND AND THIRD CAUSE OF ACTION. Moving party to give notice.
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