On 06/30/2015 AMIR MOSTAFAVI filed a Contract - Other Contract lawsuit against ERIC KINGSLEY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ELIZABETH ALLEN WHITE. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
ELIZABETH ALLEN WHITE
DOES 1 TO 10
DOES 11 TO 20
DOES 21 TO 30
KINGSLEY & KINGSLEY APC
MOSTAFAVI LAW GROUP APC
LIANG JASON L
1/16/2018: PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR AN ORDER TO STAY THE ENFORCEMENT OF ORDER AWARDING DEFENDANTS ATTORNEYS' FEES; ETC.
2/7/2018: NOTICE OF HEARING RE: PLAINTIFF?S MOTION TO STAY ENFORCEMENT OF ORDER TO PAY ATTORNEY'S FEES PENDING APPEAL
7/27/2018: Minute Order
10/10/2018: Minute Order
1/14/2019: Minute Order
8/20/2015: PROOF OF SERVICE
8/20/2015: DEFENDANTS' NOTICE OF MOTION AND MOTION TO STRIKE; MEMORANDUM OF POINTS AND AUTHORITIES FILED IN SUPPORT THEREOF
10/14/2015: DEFENDANTS' REPLY IN SUPPORT OF THE DEMURRER TO PLAINTIFF'S COMPLAINT
8/15/2016: Minute Order
5/16/2017: PLAINTIFF AMIR MOSTAFAVI'S OBJECTION TO THE DECLARATION OF JASON LIANG IN SUPPORT OF DEFENDANT'S MOTION FOR ATTORNEY'S FEES; AND [PROPOSED] ORDER
5/16/2017: PLAINTIFF AMIR MOSTAFAVI'S OPPOSITION TO DEFENDANTS' MOTION FOR ATTORNEY'S FEES, MEMORANDIJM OF POINTS AND AUTHORITIES
8/9/2017: NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION
10/17/2017: Minute Order
10/17/2017: Minute Order
11/1/2017: NOTICE OF APPEAL
11/2/2017: NOTICE OF FILING OF NOTICE OF APPEAL
at 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Hearing on Motion for Attorney Fees (on Appeal) - Held - Motion GrantedRead MoreRead Less
Ruling: Motion for Attorney's Fees on Appeal; Filed by ClerkRead MoreRead Less
Minute Order ( (Hearing on Defendants Eric Kingsley and Kingsley & Kingsley, ...)); Filed by ClerkRead MoreRead Less
Reply (In Support Of Motion For Attorneys Fees On Appeal); Filed by Eric Kingsley (Defendant); Kingsley & Kingsley, APC (Defendant)Read MoreRead Less
Opposition (to Defendants' Motion for Attorney's Fees on Appeal); Filed by Amir Mostafavi (Plaintiff)Read MoreRead Less
Motion for Attorney Fees; Filed by Eric Kingsley (Defendant); Kingsley & Kingsley, APC (Defendant)Read MoreRead Less
at 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Status Conference (Re Arbitration) - HeldRead MoreRead Less
Minute Order ( (Status Conference Re Arbitration)); Filed by ClerkRead MoreRead Less
Stipulation - No Order (Stipulation Extending Time To File Defendants Motion For Attorneys Fees On Appeal); Filed by Eric Kingsley (Defendant); Kingsley & Kingsley, APC (Defendant)Read MoreRead Less
Memorandum (MEMORANDUM OF COSTS ON APPEAL); Filed by Eric Kingsley (Defendant)Read MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
at 10:00 AM in Department 48; (Order ReRelated Cases; Court makes order) -Read MoreRead Less
Minute order entered: 2015-07-20 00:00:00; Filed by ClerkRead MoreRead Less
Minute OrderRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
Complaint; Filed by Amir Mostafavi (Plaintiff)Read MoreRead Less
PLAINTIFF'S COMPLAINT FOR: 1. FRAUD OR DECEIT IN VIOLATION OF CIV. CODE 1709, 171O, AND 1572; ETCRead MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC586706 Hearing Date: July 29, 2020 Dept: 48
[TENTATIVE] ORDER RE: DEMURRER AND MOTION TO STRIKE
On June 30, 2015, Plaintiff Amir Mostafavi filed this action against Defendants Eric Kingsley and Kingsley & Kingsley, APC (collectively, “Defendants”), alleging that Defendants as co-counsel improperly caused Plaintiff’s clients to settle a claim for less than Plaintiff believes the amount should have been, and that Defendants are withholding Plaintiff’s share of fees. The complaint alleged seven causes of action: (1) fraud; (2) breach of contract; (3) breach of the covenant of good faith and fair dealing; (4) conversion; (5) declaratory relief; (6) fraudulent inducement; and (7) intentional infliction of emotional distress.
On October 21, 2015, the Court granted Defendants’ anti-SLAPP motion as to the first, second, third, and sixth causes of action; denied Defendants’ anti-SLAPP motion as to the fourth, fifth, and seventh causes of action; and sustained Defendants’ demurrer with 10 days’ leave to amend as to the fourth and seventh causes of action. Therefore, only Plaintiff’s fifth cause of action (declaratory relief) remained, absent Plaintiff amending the fourth and seventh causes of action. The Court stayed the action pending the arbitration of a related action involving Plaintiff and his former clients.
On November 1, 2017, Plaintiff appealed the anti-SLAPP ruling. The Court of Appeal dismissed the appeal because Plaintiff filed the notice of appeal more than two years after the order on the anti-SLAPP motion, and remittitur issued on February 19, 2019.
Defendants filed their answer to the complaint on August 15, 2019. At a status conference on September 11, 2019, the Court lifted the stay and scheduled a non-jury trial for January 22, 2020.
On December 19, 2019, Plaintiff filed a first amended complaint (“FAC”) alleging four causes of action: (1) conversion; (2) declaratory relief; (3) intentional infliction of emotional distress; and (4) unfair business practices.
On January 17, 2020, Defendants filed a demurrer and motion to strike to Plaintiff’s FAC. Defendants move to strike the FAC in its entirety because it was filed without leave of Court and only one month before the January 22, 2020 trial date. In the alternative, Defendants moved to strike the fourth cause of action, allegations against Eric Kingsley in his personal capacity, and allegations relating to the prayer for punitive damages. Defendants demurred to the entire FAC on the grounds that the litigation privilege bars the claims and alternatively for insufficient facts.
On January 22, 2020, the day of trial. Plaintiff reported that he was not ready for trial. The Court noted Plaintiff had never posted jury fees. The Court continued the non-jury trial to June 1, 2020, with the discovery and motion cutoff dates governed by the original trial date.
On March 4, 2020, Plaintiff filed a motion for leave to amend his complaint, for relief from waiver of the right to jury trial, to reopen discovery, and to vacate the trial date.
REQUEST FOR JUDICIAL NOTICE
Defendants request the Court to take judicial notice of ten court records. The unopposed request is granted. (Evid. Code, § 452, subd. (d).)
Defendants move to strike the FAC because it was untimely filed without leave of court. A court may, upon a motion or at any time in its discretion: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds.(a)-(b).)
Plaintiff failed to amend his complaint within ten days of the September 11, 2019 order lifting the stay. Because Plaintiff missed this deadline, Plaintiff needed to file a noticed motion for leave to file his FAC. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613 [“After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court.”].) Plaintiff eventually moved for leave to file an amended complaint on March 4, 2020, the same day Plaintiff filed his oppositions to the motion to strike and demurrer. Plaintiff’s opposition acknowledges that his FAC was untimely filed.
Accordingly, the motion to strike the FAC is GRANTED. Defendants’ demurrer is therefore MOOT.
[TENTATIVE] ORDER RE: MOTION FOR LEAVE TO FILE AMENDED COMPLAINT AND FOR RELIEF FROM WAIVER OF THE RIGHT TO JURY TRIAL, REOPENING DISCOVERY, VACATING THE TRIAL DATE
REQUEST FOR JUDICIAL NOTICE
Defendants request the Court to take judicial notice of the Court’s January 22, 2020 minute order. The unopposed request is granted. (Evid. Code, § 452, subd. (d).)
Leave to Amend
The court may, in its discretion and after notice to the adverse party, allow an amendment to any pleading. (Code Civ. Proc., § 473, subd. (a)(1).) A motion to amend a pleading must include a copy of the proposed amendment or amended pleading which must be serially numbered to differentiate it from previous pleadings or amendments and must state what allegations in the previous pleading are proposed to be deleted or added, if any, and where, by page, paragraph, and line number, the allegations are located. (California Rules of Court, rule 3.1324(a).) The motion shall also be accompanied by a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier. (California Rules of Court, rule 3.1324(b).)
Plaintiff’s motion includes a copy of the proposed amended complaint and states what allegations have been added, modified, or reordered. (Motion at pp. 4-5.) Plaintiff contends that the interests of justice require amendment, there is no prejudice to Defendants because the new causes of action are based upon the same general set of facts, and “Plaintiff has always alleged that Defendants’ conducts were [sic] tortious, improper, and unfair.” (Id. at pp. 6-7.) However, Plaintiff’s declaration does not attest to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why he did not make the request for amendment earlier. Indeed, the contention that Plaintiff has always alleged Defendants’ conduct was tortious indicates that Plaintiff knew the facts giving rise to the amended allegations a long time ago.
In addition, the new conversion cause of action does not address the deficiencies described by the Court in sustaining the demurrer to the original cause of action. The Court explained that Plaintiff had not pled entitlement to any specific sum of money or that he was seeking to enforce a lien, and that entitlement to funds based on breach of an agreement to pay does not support a conversion cause of action. The new conversion cause of action does not allege Plaintiff is entitled to a specific sum. Rather it alleges he “is entitled to the return of the attorneys’ fees and costs converted by Defendants in an amount according to proof at the time of trial which exceeds $200,000.” (FAC, ¶ 88.) The FAC does not allege a lien. Instead, the allegations are based on a breach of contract to pay the fees and costs. (See, e.g., FAC, ¶¶ 77, 79, 80, 82 [alleging Defendants owed sums due to him pursuant to a co-counseling agreement between Plaintiff and Defendants].) No legal authority allows the transformation of a contract claim into a tort claim by alleging that the defendant converted the money due under a contract by failing to pay it.
Likewise, the new cause of action for intentional infliction of emotional distress does not remedy the deficiency identified by the Court in sustaining the demurrer – that allegations about a dispute over attorney fees do not present extreme and outrageous conduct. That continues to hold true for the FAC.
Plaintiff further contends that the Court is required to grant mandatory relief under Code of Civil Procedure section 473, subdivision (b) due to attorney mistake, inadvertence, surprise, or neglect. (Motion at 6.) But that section’s mandatory provision applies only to defaults, default judgments, and dismissals entered due to attorney error—not to all attorney errors. (Shayan v. Spine Care & Orthopedic Physicians (2020) 44 Cal.App.5th 167, 170-171.) Here, the Court did not enter judgment or an order of dismissal. Moreover, the purpose of Code of Civil Procedure section 473 is “‘“to relieve the innocent client of the burden of the attorney's fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits.” [Citations.]’” (Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027, 1036.) Plaintiff is an attorney representing himself, and so those policy concerns are not present.
In addition, Plaintiff bases his mistake in failing to file a timely FAC on the incorrect assertion that “[a]t no time the Court . . . gave him a deadline for amending the causes of action for Conversion and Intentional Infliction of Emotional Distress.” (Mostafavi Decl. ¶ 30.) The October 21, 2015 order expressly gave Plaintiff 10 days’ leave to amend as to the fourth and seventh causes of action.
Accordingly, Plaintiff’s request to file an amended complaint is DENIED.
Relief from Jury Trial Waiver
Under Code of Civil Procedure section 631, subdivision (c), the jury fee is due on or before the date scheduled for the initial case management conference in the action. A party waives a trial by jury by failing to timely pay this fee. (Code Civ. Proc., § 631, subd. (f)(5).) “The court may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury.” (Code Civ. Proc., § 631, subd. (g).) When exercising discretion to grant relief from jury waiver, courts consider diverse factors such as delay in rescheduling the trial for jury, lack of funds, timeliness of the request and prejudice to all the litigants, prejudice to the court or its calendar, the reason for the demand (i.e., whether it is merely a pretext to obtain continuances and thus trifle with justice),¿whether the parties seeking the jury trial will be prejudiced by the Court’s denial of relief,¿and whether the other parties to the action desire a jury trial. (Day v. Rosenthal¿(1985) 170 Cal.App.3d 1125, 1176.)
Plaintiff demanded a jury trial in his complaint and on his case management statement. (Mostafavi Decl. ¶¶ 3, 7 & Exs. A, D.) On September 11, 2019, the Court lifted the stay and set a non-jury trial for January 22, 2020. Plaintiff contends that this was “merely an unintentional and inadvertent overlook by the Court,” which the Court should now correct. (Motion at pp. 7-8.) Plaintiff also states that “[a]t no time the Court ordered Plaintiff to post the jury trial,” and as “a typical norm and procedure in [his] practice,” he posts the jury fee when directed by the Court during the case management conference. (Mostafavi Decl. ¶¶ 30, 32.)
Defendants argue that Plaintiff waived trial by jury by failing to timely pay the jury fee, and waiting for direction from the Court before posting the fee is an unreasonable mistake of law. (Opposition at p. 12.) Defendants also contend that they will be prejudiced because a jury trial would deprive them of the benefit from the work they have already done to prepare for the bench trial, including filing motions in limine, a trial brief, witness lists, and exhibit lists. (Ibid.)
Plaintiff does not adequately explain why he did not post jury fees or seek relief before the prior trial date. Plaintiff states only that because the Court did not order him to do so on September 11, 2019, he failed to post the jury fee. (Mostafavi Decl. ¶ 32.) Plaintiff does not explain why he did not seek relief shortly after September 11, 2019 when the Court set a non-jury trial or on January 22, 2020 when he appeared on the trial date unprepared for trial. Plaintiff does not state he was unable or could not afford to post the jury fee. Waiting for the Court to ask whether a jury fee has been posted is not a excusable neglect because a party has the affirmative duty to timely post the fee, whether or not the Court inquires if it has been done. In addition, Defendants prepared for a non-jury trial and apparently were ready for January 22, 2020, having filed a trial brief, witness list and exhibit list. They would be prejudiced by a switch to a jury trial after being prepared on the day of trial for a non-jury trial.
Accordingly, the request for relief from the waiver is DENIED.
Trial was originally scheduled for January 22, 2020. The parties therefore had until December 23, 2019 to complete discovery and until January 7, 2020 to file discovery motions. (Code Civ. Proc., §§ 2024.020, 2024.030.) When the Court continued the trial to June 1, 2020, it stated that “[t]he discovery and Motion Cut-Off deadlines are governed by the original trial date.”
Plaintiff moves to reopen discovery. “On motion of any party, the court may grant leave to complete discovery proceedings . . . or to reopen discovery after a new trial date has been set.” (Code Civ. Proc., § 2024.050, subd. (a).) In considering whether to grant discretionary relief, the Court should consider the necessity and reasons for the discovery, the diligence or lack of diligence of the party seeking discovery, the reasons that discovery was not completed earlier, any likelihood that permitting discovery will prevent the case from going to trial or otherwise interfere with the trial calendar, the likelihood that permitting discovery would prejudice any party, and the length of time that has elapsed between any previous trial date and the current trial date. (Code Civ. Proc., § 2024.050, subd. (b).)
Plaintiff contends that, due to the action being stayed from October 21, 2015 to September 11, 2019, he had no ability to conduct discovery. (Motion at p. 7.) According to Plaintiff, “no discovery has been conducted by parties.” (Ibid.) Plaintiff does not explain why he did not conduct any discovery between September 11, 2019 and January 8, 2020, when he served a deposition notice after the close of discovery. When the Court set the January 22, 2020 trial date, diligence required serving discovery expeditiously. Plaintiff seems to argue that he could not serve discovery because he had not yet filed the FAC. But no law prohibits discovery when a demurrer has been sustained with leave to amend, and Plaintiff’s failure to timely file the FAC cannot be an excuse for Plaintiff’s failure to serve any discovery before the cutoff date. In sum, Plaintiff was not diligent in seeking discovery and did not sufficiently explain why he was not able to complete discovery before the cutoff date.
Plaintiff also does not explain why he did not move to reopen discovery much earlier, such as immediately after Defendant objected to the untimely January 8, 2020 deposition notice.
In light of the Court’s inability to hold non-jury trials before November 16, 2020 and jury trials before January 2021 due to the pandemic, reopening discovery would not interfere with the trial calendar or cause a delay in the trial. (See Presiding Judge’s Gen. Order No. 2020-GEN-019-00 (July 10, 2020).) However, reopening discovery will prejudice Defendants who were prepared to start trial on January 22, 2020, and would then be forced, in effect, to start this litigation all over. Therefore the motion to reopen discovery is DENIED.
The Court DENIES the motion for leave to file an amended complaint, the request for relief from waiver of jury trial, and the request to reopen discovery. The request to vacate the trial date of June 1, 2020 is MOOT.
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.