On 12/23/2015 ALBERT BARRIOS filed a Property - Other Real Property lawsuit against JOEL LEEBOVE. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RANDOLPH M. HAMMOCK. The case status is Pending - Other Pending.
****5281
12/23/2015
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
RANDOLPH M. HAMMOCK
BARRIOS ALBERT
123 LOS ROBLES LLC
DOES 1 THROUGH 50
CHRAGHCHIAN PATRICK
LEEBOVE JOEL
105 LR LLC
105 LR LLC [DOE 41 AND DOE 44]
YOUNGER ERIC
LAW OFFICES OF BRUCE ALTSCHULD
ALTSCHULD BRUCE EDWARD
ALTSCHULD BRUCE ESQ.
MACNAUGHTON BARRY JOHN
SCHREIBER EDWIN CORDELL
4/16/2018: Minute Order
5/11/2018: PLAINTIFF'S RESPONSE TO DEFENDANT PATRICK CHRAGHCHIAN'S LIMITED OBJECTION TO STATEMENT OF RULING BY REFEREE; DECLARATION OF BRUCE ALTSCHULD
6/28/2018: PLAINTIFF'S OPPOSITION TO DEFENDANT CHRAGHCHIAN'S MOTION TO ADOPT REFEREE'S FINDINGS AND FOR ENTRY OF JUDGMENT; DECLARATION OF BRUCE ALTSCHULD;
3/7/2019: Memorandum
3/8/2019: Minute Order
3/15/2019: Notice of Ruling
4/30/2019: Separate Statement
5/9/2019: Declaration
1/19/2016: NOTICE OF CASE MANAGEMENT CONFERENCE
4/5/2016: TRIAL PREPARATION ORDER
5/11/2016: EVIDENTIARY OBJECTIONS TO DECLARATION OF JAKE METZLER
5/11/2016: PROOF OF SERVICE RE: REPLY BRIEF AND RELATED DOCUMENTS
9/6/2016: PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR ORDER TO COMPEL THE PRODUCTION OF THE "123 LOS ROBLES LLC" DOCUMENTS; ETC.
12/9/2016: Minute Order
12/30/2016: PLAINTIFF'S EVIDENCE OBJECTIONS IN SUPPORT OF HIS REPLY BRIEF
2/16/2017: EX PARTE APPLICATION FOR ORDER TO COMPEL THE PARTIES TO PROCEED TO A JUDICIAL REFERENCE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURES SECTION 639; ETC.
11/27/2017: CIVIL DEPOSIT
12/22/2017: Notice of Related Cases
at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion to Compel (Compliance with subpoena attorney records) - Not Held - Taken Off Calendar by Party
at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Trial Setting Conference - Held
at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Not Held - Taken Off Calendar by Party
at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Not Held - Taken Off Calendar by Party
Minute Order ( (Trial Setting Conference)); Filed by Clerk
Declaration (Declaration in Support of Opposition to Motion to Overrule Objections to Subpoenas Served on Third Party Attorneys; For an Order to Compel Production; For an Issue Preclusion Order; For Monetary Sanctions); Filed by 123 Los Robles, LLC (Defendant)
Opposition (Opposition to Motion to Overrule Objections to Subpoenas Served on Third Party Attorneys; For an Order to Compel Production; For an Issue Preclusion Order; For Monetary Sanctions; and Request For Monetary Sanctions); Filed by 123 Los Robles, LLC (Defendant)
Opposition (Opposition to Separate Statement in Support of Motion to Overrule Objections and to Compel Production); Filed by 123 Los Robles, LLC (Defendant)
Notice (filing signed declaration of Altschuld); Filed by Albert Barrios (Plaintiff)
Separate Statement; Filed by Albert Barrios (Plaintiff)
Notice of Case Management Conference; Filed by Albert Barrios (Plaintiff)
Receipt; Filed by Albert Barrios (Plaintiff)
NOTICE OF POSTING OF JURY FEES
NOTICE OF CASE MANAGEMENT CONFERENCE
CIVIL DEPOSIT
Notice of Case Management Conference; Filed by Clerk
NOTICE OF CASE MANAGEMENT CONFERENCE
SUMMONS
Complaint; Filed by Albert Barrios (Plaintiff)
COMPLAINT FOR: 1. BREACH OF FIDUCIARY DUTY; ETC
Case Number: BC605281 Hearing Date: February 10, 2020 Dept: 47
Albert Barrios, et al. v. Joel Leebove, et al.
MOTION FOR ORDER OF RECONSIDERATION
MOVING PARTY: Plaintiff Albert Barrios, an individual, on behalf of other stakeholders, and derivatively on behalf of 123 Los Robles, LLC
RESPONDING PARTY(S): Defendant Patrick Chraghchian
STATEMENT OF FACTS
Plaintiff alleges that Defendants breached their fiduciary duties to a limited liability company by giving an easement to an entity Defendants owned which benefited Defendants.
Plaintiff moves for reconsideration of the Court’s order adopting the Judicial Referee’s finding that the Reciprocal Easement Agreement entered into by the derivative party and 105 LR, LLC, an entity owned and controlled by the derivative defendants, was “fair and reasonable” to the member investors of 123 Robles LLC.
TENTATIVE RULING:
Plaintiff’s motion for reconsideration is DENIED.
DISCUSSION:
Motion for Reconsideration
Plaintiff moves for reconsideration of a September 2018 order of the Court adopting the Judicial Referee’s finding that the Reciprocal Easement Agreement entered into by the derivative party and 105 LR, LLC, an entity owned and controlled by the derivative defendants, was “fair and reasonable” to the member investors of 123 Los Robles LLC.
Plaintiff cites no statutory basis for this motion in his opening brief and devotes no space to explaining the criteria for a motion for consideration, and it is therefore perhaps not surprising that Defendant assumed that it was brought under CCP § 1008(a). In reply, for the first time, Plaintiff indicates that he intended to bring the motion under CCP § 1008(b) and (c). CCP § 1008(c) provides only that the Court may reconsider its prior orders “on its own motion,” and therefore that subsection is inapplicable where, as here, a party has brought a motion for reconsideration.
CCP § 1008 provides, in relevant part:
(b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.
(CCP § 1008(b) (bold emphasis added).)
In connection with a motion for reconsideration, there must be “a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; see also Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658 [“With regard to new facts, ‘the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.’”].)
Here, Plaintiff argues that the “new or different . . . circumstances” justifying reconsideration arose in December 2019, when Defendant “designated several expert witnesses on the propriety of the Reciprocal Easement Agreement.” (Motion, at p. 2.) Plaintiff argues that he should be able to argue that the Reciprocal Easement Agreement was not “fair and reasonable” if Defendant plans to “defend the Breach of Fiduciary Duty – Lot Tie Agreement with facts that can only be attributed to the Reciprocal Easement Agreement.” (Ibid.) This is not, however, a “changed circumstance” that would have led the Court to reach a different decision regarding the Reciprocal Easement Agreement. Moreover, Defendant has indicated that its designated expert, Keith Strohl, would be testifying regarding the Lot-Tie Agreement, not the Reciprocal Easement Agreement. The Court’s 2018 ruling is clear in adopting the Referee’s finding on the Reciprocal Easement Agreement. (Final Ruling, 9/17/18, at p. 5.) It is also clear regarding which issues will be tried in Court, including whether the Lot-Tie Agreement was fair and reasonable. (Ibid.) The Court does not intend to retry issues that have already been decided.
Other than Defendant’s expert witness designation, Plaintiff points to no “new or different facts, circumstances, or law” that would justify reconsideration. Plaintiff’s other arguments either were raised or could have been raised back in 2018. For example, Plaintiff argues that the “Judicial Referee’s finding that the garages under the Burton and the Campbell building were ‘spacious and elegant’ misunderstands the ‘reciprocal’ part of the Reciprocal Easement Agreement in that the Campbell tenants must access the underground parking garage of the Burton to exit while the Burton tenants have no legal access to the Campbell garage; and if the Burton garage is spacious and elegant then defendants must ‘reciprocate’ with something of value that is equal to a 2 level spacious and elegant garage – defendants didn’t even come close to this required proof.” (Motion, at p. 2.) This is not new information, and Plaintiff either raised or could have raised this argument in 2018. (See, e.g., Plaintiff’s Bench Brief Re: Tentative Ruling, 09/04/18, at p. 8 [“The Burton tenants had no right (and no need) to go under The Campbell; only The Campbell tenants had the right to go under The Burton.”].)
In addition, as Defendant notes, Plaintiff did not comply with the procedural requirements of CCP § 1008. The subsection on which Plaintiff purports to rely requires the moving party to show “by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (CCP § 1008(b) (bold emphasis added).) The Declaration of Bruce Altschuld submitted with this motion addresses none of those required issues.
Thus, Plaintiff has not presented any new or different facts, law or circumstances which were not previously considered by the Court in issuing its September 17, 2018 ruling. Accordingly, the motion for reconsideration is DENIED.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated: February 10, 2020 ___________________________________
Randolph M. Hammock
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org