This case was last updated from Los Angeles County Superior Courts on 01/06/2021 at 12:33:27 (UTC).

ANA VACA ET AL VS NEIL M HOWARD ET AL

Case Summary

On 02/15/2012 ANA VACA filed a Property - Other Eviction lawsuit against NEIL M HOWARD. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are JOANNE O'DONNELL, CAROLYN B. KUHL, DEIRDRE HILL, DEBRE K. WEINTRAUB and RANDOLPH M. HAMMOCK. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9045

  • Filing Date:

    02/15/2012

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Eviction

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JOANNE O'DONNELL

CAROLYN B. KUHL

DEIRDRE HILL

DEBRE K. WEINTRAUB

RANDOLPH M. HAMMOCK

 

Party Details

Petitioners and Plaintiffs

VACA ANA

VALERA GERMAN

Defendants and Respondents

HOWARD NEIL M.

LEWENFUS SHELDON

DOES 1 THROUGH 20

LOS ANGELES COUNTY SHERIFF DEPARTMENT

TIFFANY GARRARD - DOE 2

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

ALDEN NICK A. ESQ.

ALDEN NICK A ESQ.

Defendant and Respondent Attorneys

DAPEER PHILIP D. ESQ.

NELSON HENRY PATRICK ESQ.

NEUFELD TIMOTHY L. ESQ.

NELSON HENRY PATRICK

NEUFELD TIMOTHY LEE ESQ.

 

Court Documents

Legacy Document - LEGACY DOCUMENT TYPE: OPPOSITION DOCUMENT

2/22/2013: Legacy Document - LEGACY DOCUMENT TYPE: OPPOSITION DOCUMENT

Legacy Document - LEGACY DOCUMENT TYPE: OBJECTION DOCUMENT

2/22/2013: Legacy Document - LEGACY DOCUMENT TYPE: OBJECTION DOCUMENT

Minute Order - MINUTE ORDER ENTERED: 2016-07-01 00:00:00

7/1/2016: Minute Order - MINUTE ORDER ENTERED: 2016-07-01 00:00:00

Exhibit List

7/1/2016: Exhibit List

Motion to Be Relieved as Counsel

6/11/2019: Motion to Be Relieved as Counsel

Declaration - DECLARATION IN SUPPORT OF ATTORNEY'S MOTION TO BE RELIEVED AS COUNSEL

6/11/2019: Declaration - DECLARATION IN SUPPORT OF ATTORNEY'S MOTION TO BE RELIEVED AS COUNSEL

Ex Parte Application - EX PARTE APPLICATION RE: FOR ORDER GRANTING MOTION TO BE RELIEVED AS COUNSEL

7/1/2019: Ex Parte Application - EX PARTE APPLICATION RE: FOR ORDER GRANTING MOTION TO BE RELIEVED AS COUNSEL

Order - ORDER GRANTING ATTORNEY'S MOTION TO BE RELIEVED AS COUNSEL

7/2/2019: Order - ORDER GRANTING ATTORNEY'S MOTION TO BE RELIEVED AS COUNSEL

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION RE: FOR ORDER GRANTING MOTION...)

7/2/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION RE: FOR ORDER GRANTING MOTION...)

Substitution of Attorney

7/3/2019: Substitution of Attorney

Notice of Ruling - NOTICE OF RULING ON EX PARTE APPLICATION

7/8/2019: Notice of Ruling - NOTICE OF RULING ON EX PARTE APPLICATION

Status Report

9/10/2019: Status Report

Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE; STATUS CONFERENCE RE: LIFTING THE S...)

9/16/2019: Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE; STATUS CONFERENCE RE: LIFTING THE S...)

Notice of Ruling

9/18/2019: Notice of Ruling

Status Report

1/8/2020: Status Report

Proof of Service (not Summons and Complaint)

7/15/2020: Proof of Service (not Summons and Complaint)

Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE; ORDER TO SHOW CAUSE RE: MONETARY SA...)

7/22/2020: Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE; ORDER TO SHOW CAUSE RE: MONETARY SA...)

Notice Re: Continuance of Hearing and Order

11/12/2020: Notice Re: Continuance of Hearing and Order

512 More Documents Available

 

Docket Entries

  • 01/11/2021
  • Hearing01/11/2021 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Monetary Sanctions against Plaintiff's counsel for failure to appear for the hearing on 9/16/2019

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  • 01/11/2021
  • Hearing01/11/2021 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Status Conference

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  • 01/11/2021
  • Hearing01/11/2021 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012; Trial Setting Conference

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  • 12/28/2020
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Order to Show Cause Re: (Monetary Sanctions against Plaintiff's counsel for failure to appear for the hearing on 9/16/2019) - Not Held - Rescheduled by Court

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  • 12/28/2020
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Trial Setting Conference - Not Held - Rescheduled by Court

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  • 12/28/2020
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Status Conference (Re Lifting the Stay) - Not Held - Rescheduled by Court

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  • 11/12/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by Clerk

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  • 11/12/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by Clerk

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  • 11/12/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by Clerk

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  • 07/22/2020
  • Docketat 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Trial Setting Conference - Held - Continued

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1,150 More Docket Entries
  • 03/07/2012
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 03/01/2012
  • DocketFIRST AMENDED COMPLAINT: 1. CONVERSION, ETC

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  • 03/01/2012
  • DocketFirst Amended Complaint; Filed by Ana Vaca (Plaintiff); German Valera (Plaintiff)

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  • 02/21/2012
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 02/21/2012
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 02/21/2012
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 02/21/2012
  • DocketProof-Service/Summons; Filed by Plaintiff/Petitioner

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  • 02/15/2012
  • DocketComplaint; Filed by Ana Vaca (Plaintiff); German Valera (Plaintiff)

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  • 02/15/2012
  • DocketCOMPLAINT FOR: 1. CONVERSION; ETC

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  • 02/15/2012
  • DocketSUMMONS

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Complaint Information

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

ANA VACA and GERMAN VALERA, as Husband | Case No.: BC 479045

and Wife,

DEFENDANT HOWARD'S REPLY IN

Plaintiffs, SUPPORT OF MOTION FOR

| JUDGMENT ON THE PLEADINGS WITH

V. RESPECT TO THE THIRD AMENDED

COMPLAINT

NEIL M. HOWARD, an individual; SHELDON

LEWENFUS, an individual; and DOES 1-50, Date: February 27, 2017

inclusive, Time: 8:30 a.m. Dept.. 47

Defendants.

Defendant Neil M. Howard submits the following Reply in Support of his Motion for Judgment on the Pleadings with respect to the Third Amended Complaint: L. STATEMENT OF THE CASE

‘The file will reflect that the Third Amended Complaint was filed on October 7, 2013. Thereafter, Defendant Howard filed a General Demurrer to each of the Causes of Action of the Third Amended Complaint. The Court sustained Defendant Howard's Demurrer to the Second, Third and Fourth Causes of Action of the Third Amended Complaint without leave to amend. With respect to the First Cause of Action of the Third Amended Complaint, Defendant Howard's Demurrer was overruled.

On September 15, 2016, this Court reconsidered its prior ruling sustaining Defendant Howard's Demurrer to the Second Cause of Action of the Third Amended Complaint without leave

REPLY IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS

Tentative Rulings

Case Number: ****9045 Hearing Date: July 5, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: July 5, 2022 TRIAL DATE: VACATED

CASE: Ana Vaca et al v. Neil M. Howard, et al.

CASE NO.: ****9045

MOTION TO TAX COSTS AND/OR STRIKE THE MEMORANDUM OF COSTS

MOVING PARTY: Plaintiffs Ana Vaca and German Valera

RESPONDING PARTY(S): Defendant Sheldon Lewenfus

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This was an action for wrongful eviction. Plaintiff Ana Vaca and her husband German Valera alleged that Defendants Howard, Lewenfus and Garrard conspired to deprive Plaintiffs of their property by selling it at public auction to Lewenfus for $10,000. Judgment was entered for Defendant Lewenfus against Plaintiffs.

Plaintiffs move to tax Defendant Lewenfus’s memorandum of costs, or, in the alternative, strike the memorandum.

TENTATIVE RULING:

Plaintiffs’ motion to strike and/or tax costs is DENIED.

DISCUSSION:

Plaintiffs move to tax costs or strike the memorandum of costs.

Legal Standard

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (Code Civ. Proc. 1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.) A defendant who is dismissed from the action is the “prevailing party.” (Code Civ. Proc. 1032(a)(4).) This is so whether the dismissal is voluntary or involuntary. (Santisas, 17 Cal.4th at 606.)

Allowable costs under Section 1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount. An item not specifically allowable under Section 1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ibid.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (Ibid.) However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Id.) Discretion is abused only when, in its exercise, the court “exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.)

Timeliness of Motion

“Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013.” (Cal. Rules of Court, rule 3.1700(b)(1).) Here, Defendant served his memorandum of costs on Plaintiffs by mail on email on May 13, 2022. Plaintiffs timely filed their motion on May 20, 2022.

Timeliness of Memorandum of Costs

Plaintiffs contend that the memorandum should be stricken in its entirety because it is untimely.

Rule 3.1700(a)(1) states that ““A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.”

Here, judgment was entered on April 21, 2022. Defendant contends that Plaintiffs were served with the notice of ruling by mail and email on April 26, 2022. (Declaration of Yuriko Shikai ISO Opp. 3.) The memorandum of costs was served and filed on all parties by mail and email on May 13, 2022, 15 days plus 2 court days after the date of service of the notice of ruling. (Id. 4.) Plaintiffs argue that the memorandum of costs is untimely because it was served 22 days after entry of judgment. Plaintiffs are wrong. The rule states that the memorandum of costs must be served 15 days after the date of service of the notice of entry of judgment, plus any additional days for the manner of service as required by statute. Defendant has done so. Therefore, the memorandum of costs is timely.

Reasonableness of Costs

Plaintiffs also contend that certain requested costs should be taxed or stricken.

Rule 3.1700(b)(2) states that “[u]nless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable.” Here, Plaintiffs do not identify which costs should be taxed or stricken either in the notice of motion or within the memorandum of points and authorities. Plaintiffs have not properly objected to any requested costs in the memorandum of costs.

CONCLUSION:

Accordingly, Plaintiffs’ motion to strike and/or tax costs is DENIED.

Moving party to give notice.

IT IS SO ORDERED.

Dated: July 5, 2022

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.



Case Number: ****9045 Hearing Date: May 2, 2022 Dept: 47

Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: May 2, 2022 TRIAL DATE: None
CASE: Ana Vaca et al v. Neil M. Howard, et al.
CASE NO.: ****9045
(1) MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, SET ONE, FROM PLAINTIFF German Valera;
REQUEST FOR MONETARY SANCTIONS
(2) MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION, SET ONE; REQUEST FOR MONETARY SANCTIONS
MOVING PARTY: Defendant Neil M. Howard
RESPONDING PARTY(S): None (no opposition on eCourt as of 4/26/2022)
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiffs Ana Vaca and her husband, German Valera, allege that in a case entitled Vaca v. Vaca, the court awarded Vaca’s brother, Enrique Vaca, a judgment against her in the sum of $158,565.89. Enrique Vaca represented to his attorney Howard that he did not want to sell his mother’s house to satisfy the judgment. It is alleged that, despite Enrique Vaca’s position, defendant Howard falsely represented to the Court that he needed a court order to sell the house to satisfy the judgment. It is also alleged that Defendants Howard, Lewenfus and Garrard conspired to deprive Plaintiffs of their property by selling it at public auction to Lewenfus for $10,000.
Defendant Howard secured a judgment in his favor on November 16, 2021. As part of his post-judgment enforcement efforts, Howard has propounded written discovery to Plaintiff German Valera, who has provided no responses.
Defendant Howard moves to compel responses to special interrogatories and requests for production of documents and for sanctions.
TENTATIVE RULING:
Defendant Howard’s motions to compel responses to special interrogatories and requests for production, both sets one, are GRANTED.
Defendant’s requests for sanctions are GRANTED IN PART.
DISCUSSION:
Motion To Compel Responses to Special Interrogatories
When a party to whom interrogatories are directed fails to respond, a party propounding the interrogatories may move for an order compelling a response. (CCP 2030.290(b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (CCP 2030.290(a).) For a motion to compel initial responses, no meet and confer is required. All that must be shown is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response has been served. (Leach v. Sup. Ct. (1980) 111 Cal.App.3d 902, 905-06.)
Defendant Howard has demonstrated that the first set of special interrogatories was properly served on Plaintiff and his attorney of record, but Plaintiff never responded. (Howard Decl. re Mtn to Compel Responses to Special Interrogatories, 5-6, 8-9; Exh. 1.) Based on this showing, Defendant Howard’s motion to compel is GRANTED. Plaintiff is to provide code-compliant answers to Howard’s first set of special interrogatories, without objections, by May 27, 2022.
Motion to Compel Responses to Requests for Production of Documents
When a party to whom an inspection demand is directed fails to respond under CCP 2031.300(b), a party making the demand may move for an order compelling a response to the inspection demand. A party who fails to provide timely responses waives any objection, including one based on privilege or work product. (CCP 2031.300(a).)
Here, as with the interrogatories discussed above, the demand for production of documents was properly served on Plaintiff, who never provided any response. (Howard Decl. re Mtn to Compel Responses to Document Requests, 5-6, 8-9; Exh. 1.) Based on this showing, Defendant Howard’s motion to compel is GRANTED. Plaintiff is to provide code-compliant answers to Howard’s first set of production demands, without objections, by May 27, 2022.
Requests for Sanctions
Howard requests monetary sanctions against Plaintiff and his attorney, Nick Alden. For each motion, the amount requested is $2337.50, including a total of 5 hours for each with one hour for research and preparation of exhibits, two hours for drafting the motion and supporting papers, one-and one-half hours for reviewing the opposition and drafting a reply, and one hour for the hearing. An attorney representing himself is not entitled to recover attorney’s fees as a discovery sanction, although he may be entitled to recover reasonable expenses actually incurred, if reasonably identifiable and allocable. (Kravitz v. Superior Court (2001) 91 Cal.App.4th 1015, 1020.) Defendant has only identified costs of $61.65 in filing fees for each motion, and has otherwise not identified any other expenses, reasonable or otherwise. Accordingly, as Defendant is entitled to costs, but not attorney’s fees, the Court grants monetary sanctions in the amount of $123.30, accounting for $61.65 in filing fees for each of the two motions to compel.
For the reasons above, Defendant Howard’s motions to compel responses to special interrogatories and requests for production, both sets one, are GRANTED. Plaintiff is to provide code-compliant answers to Howard’s first sets of special interrogatories and requests for production, without objections, by May 27, 2022.
Defendant’s requests for sanctions are GRANTED IN PART. Plaintiff and Nick Alden are jointly and severally responsible for paying to defense counsel a total of $123.30 in monetary sanctions by May 27, 2022.
Moving Party to give notice.
IT IS SO ORDERED.
Dated: May 2, 2022
Theresa M. Traber
Judge of the Superior Court


Case Number: ****9045 Hearing Date: April 27, 2022 Dept: 47

Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: April 27, 2022 TRIAL DATE: None
CASE: Ana Vaca et al v. Neil M. Howard, et al.
CASE NO.: ****9045
(1) MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, SET ONE, FROM PLAINTIFF ANA VACA;
REQUEST FOR MONETARY SANCTIONS
(2) MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION, SET ONE; REQUEST FOR MONETARY SANCTIONS
MOVING PARTY: Defendant Neil M. Howard
RESPONDING PARTY(S): None (no opposition on eCourt as of 4/26/2022)
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiff Ana Vaca and her husband, German Valera, allege that in a case entitled Vaca v. Vaca, the court awarded Vaca’s brother, Enrique Vaca, a judgment against her in the sum of $158,565.89. Enrique Vaca represented to his attorney Howard that he did not want to sell his mother’s house to satisfy the judgment. It is alleged that, despite Enrique Vaca’s position, defendant Howard falsely represented to the Court that he needed a court order to sell the house to satisfy the judgment. It is also alleged that Defendants Howard, Lewenfus and Garrard conspired to deprive Plaintiffs of their property by selling it at public auction to Lewenfus for $10,000.
Defendant Howard secured a judgment in his favor on November 16, 2022. As part of his post-judgment enforcement efforts, Howard has propounded written discovery to Plaintiff Ana Vaca, who has provided no responses.
Defendant Howard moves to compel responses to special interrogatories and requests for production of documents and for sanctions.
TENTATIVE RULING:
Defendant Howard’s motions to compel responses to special interrogatories and requests for production, both sets one, are GRANTED.
Defendant’s requests for sanctions are GRANTED IN PART.
DISCUSSION:
Motion To Compel Responses to Special Interrogatories
When a party to whom interrogatories are directed fails to respond, a party propounding the interrogatories may move for an order compelling a response. (CCP 2030.290(b).) A party who fails to provide a timely response waives any objection, including one based on privilege or work product. (CCP 2030.290(a).) For a motion to compel initial responses, no meet and confer is required. All that must be shown is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response has been served. (Leach v. Sup. Ct. (1980) 111 Cal.App.3d 902, 905-06.)
Defendant Howard has demonstrated that the first set of special interrogatories was properly served on Plaintiff and her attorney of record, but Plaintiff never responded. (Howard Decl. re Mtn to Compel Responses to Special Interrogatories, 5-6, 8-9; Exh. 1.) Based on this showing, Defendant Howard’s motion to compel is GRANTED. Plaintiff is to provide code-compliant answers to Howard’s first set of special interrogatories, without objections, by May 27, 2022.
Motion to Compel Responses to Requests for Production of Documents
When a party to whom an inspection demand is directed fails to respond under CCP 2031.300(b), a party making the demand may move for an order compelling a response to the inspection demand. A party who fails to provide timely responses waives any objection, including one based on privilege or work product. (CCP 2031.300(a).)
Here, as with the interrogatories discussed above, the demand for production of documents was properly served on Plaintiff, who never provided any response. (Howard Decl. re Mtn to Compel Responses to Document Requests, 5-6, 8-9; Exh. 1.) Based on this showing, Defendant Howard’s motion to compel is GRANTED. Plaintiff is to provide code-compliant answers to Howard’s first set of production demands, without objections, by May 27, 2022.
Requests for Sanctions
Howard requests monetary sanctions against Plaintiff and her attorney, Nick Alden. For each motion, the amount requested is $2337.50, including a total of 5 hours for each with one hour for research and preparation of exhibits, two hours for drafting the motion and supporting papers, one-and one-half hours for reviewing the opposition and drafting a reply, and one hour for the hearing. An attorney representing himself is not entitled to recover attorney’s fees as a discovery sanction, although he may be entitled to recover reasonable expenses actually incurred, if reasonably identifiable and allocable. (Kravitz v. Superior Court (2001) 91 Cal.App.4th 1015, 1020.) Defendant has only identified costs of $61.65 in filing fees for each motion, and has otherwise not identified any other expenses, reasonable or otherwise. Accordingly, as Defendant is entitled to costs, but not attorney’s fees, the Court grants monetary sanctions in the amount of $123.30, accounting for $61.65 in filing fees for each of the two motions to compel.
For the reasons above, Defendant Howard’s motions to compel responses to special interrogatories and requests for production, both sets one, are GRANTED. Plaintiff is to provide code-compliant answers to Howard’s first sets of special interrogatories and requests for production, without objections, by May 27, 2022.
Defendant’s requests for sanctions are GRANTED IN PART. Plaintiff and Nick Alden are jointly and severally responsible for paying to defense counsel a total of $123.30 in monetary sanctions by May 27, 2022.
Moving Party to give notice.
IT IS SO ORDERED.
Dated: April 27, 2022
Theresa M. Traber
Judge of the Superior Court


Case Number: ****9045 Hearing Date: February 24, 2022 Dept: 47

Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: February 24, 2022 TRIAL DATE: July 11, 2022
CASE: Ana Vaca et al v. Neil M. Howard, et al.
CASE NO.: ****9045
MOTION FOR SUMMARY JUDGMENT
MOVING PARTY: Defendant Sheldon Lewenfus
RESPONDING PARTY(S): None (no opposition on eCourt as of 2/22/2022)
PROOF OF SERVICE:
Correct Address: Yes.
75/77/80 (CCP 437c): OK. Served by mail and email on December 6, 2021. (80 days from hearing date)
CASE HISTORY:
02/15/12: Complaint filed.
03/01/12: First Amended Complaint filed.
08/29/12: Los Angeles County Sheriff’s Department substituted in as Doe 1.
02/27/13: Second Amended Complaint filed.
03/28/13: Order granting motion to expunge lis pendens entered.
07/01/13: Notice of appeal filed.
10/07/13: Third Amended Complaint filed.
04/21/15: Remittitur filed.
03/16/16: Tiffany Garrard substituted in as Doe 2.
06/15/16: Order sustaining demurrer of Tiffany Gerrard without leave to amend entered.
10/06/16: Fourth Amended Complaint filed.
08/16/16: Defendant Sheldon Lewenfus’ motion for summary adjudication GRANTED as to the first cause of action for wrongful sale of real property in violation of statutes, third cause of action for conspiracy to wrongfully sell real property in violation of statutes, and the fourth cause of action for wrongful eviction.
09/15/16: Court reconsiders May 12, 2014 ruling on Defendant Neil M. Howard’s demurrer to 3AC and overrules his demurrer to the second cause of action, thereby reinstating that cause of action.
09/13/16: Order granting summary adjudication as to Defendant Sheldon Lewenfus entered.
09/28/16: Defendant Tiffany Garrard’s demurrer sustained with leave to amend as to first through fourth causes of action.
10/06/16: Fourth Amended Complaint filed.
10/06/16: Sheriff’s Department In and For the County of Los Angeles removed as Defendants
09/08/17: Tiffany Garrard dismissed with prejudice.
11/02/17: Judgment dismissing action as to Defendant Neil M. Howard Following Granting of Motion For Summary Judgment entered.
02/27/18: Notice of Appeal filed by Plaintiffs
04/03/18: Joint stipulation by parties to stay action
11/16/21: Amended Judgment dismissing action as to Defendant Neil M. Howard following Granting of Motion for Summary Judgment entered.
11/17/21: Stay of action lifted
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiff Ana Vaca and her husband German Valera allege that in a case entitled Vaca v. Vaca, the court awarded Vaca’s brother, Enrique Vaca, a judgment against her in the sum of $158,565.89. Enrique Vaca represented to his attorney, Defendant Neil Howard, that he did not want to force the sale of his sister’s house to satisfy the judgment. Defendant Howard allegedly filed a motion falsely representing to the Court that Enrique Vaca wanted a court order to sell the house to satisfy the judgment. Defendants Howard, Lewenfus and Garrard allegedly conspired to deprive Plaintiffs of their property by selling it at public auction to Lewenfus for $10,000.
Defendant Sheldon Lewenfus moves for summary judgment.
TENTATIVE RULING:
Defendant’s motion for summary judgment is DENIED.
Moving Party to give notice.
DISCUSSION:
Motion for Summary Judgment
Request For Judicial Notice
Defendant’s request that the Court take judicial notice of court documents regarding Enrique Vaca, et al. v. Ana Vaca, LASC Case NO. GC041483; Ana Vaca v. Neil M. Howard, et al., LASC BC436404; Sheldon Lewenfus v. Ana Vaca, LASC Case No. 10U02037; In re Ana Vaca, U.S. Bankruptcy Court, Central District of California, Case No. 2:10-bk-0490-RN; this action, Vaca, et al. v. Howard, et al., LASC Case No. ****9045; and the Second District Court of Appeal Opinion, Appellate Case No. B286663 is GRANTED per Evidence Code section 452 subdivision (d) (court records).
Analysis
Defendant Sheldon Lewenfus (“Lewenfus”) moves for summary judgment as to the 4AC, which asserts a single remaining cause of action for conspiracy to defraud against Defendant.
1. Propriety of the Motion for Summary Judgment.
Code of Civil Procedure section 437c subdivision (f)(2) states that:
A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.
(Code Civ. Proc. 437c, subdivision (f)(2).)
Code of Civil Procedure section also 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.
(Code Civ. Proc. 1008(b) (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.’”).)
Lewenfus previously brought a motion for summary judgment or, in the alternative, for summary adjudication as to the operative Fourth Amended Complaint. That motion contended that Plaintiffs’ cause of action against Lewenfus for conspiracy to defraud was barred by collateral estoppel. Lewenfus now brings another motion for summary judgment on the same grounds, that is, that Plaintiffs’ cause of action against Lewenfus for conspiracy to defraud is barred by collateral estoppel. Because Lewenfus is seeking the same relief on the same grounds as the previous motion, he must establish to the Court’s satisfaction that there are newly discovered facts, circumstances, or law.
Lewenfus has provided a verified declaration stating that he filed a motion for summary judgment or, in the alternative, for summary adjudication to the Third Amended Complaint, which was granted in part and denied in part. (Shikai Decl. 3, RJN Exh. 15), and a second similar motion as to the Fourth Amended Complaint, which was denied. (Shikai Decl. 3, RJN Exh. 18). Lewenfus asserts new law in the form of the Court of Appeal’s May 15, 2021 opinion in this matter. (Howard Decl. 2). Lewenfus also asserts the discovery of new facts, namely a First Amended Complaint in the related action Vaca v. Howard et al, LASC Case No. BC436404 filed on January 27, 2011 (Howard Decl 2, Shikai Decl. 4).
The allegations in the First Amended Complaint filed in 2011 in BC436404 cannot present new facts that justify an additional summary judgment motion. That action and this lawsuit are matters of public record, not under seal. Further, the Court determined that the two cases were related on April 12, 2012, almost a decade ago. Notice of that determination was served on all parties, including counsel for Lewenfus, via United States mail that same day. Lewenfus has had an entire decade to review the BC436404 case file and examine the First Amended Complaint he now considers to be significant. That pleading was certainly available to Lewenfus at the time the previous motion was argued, six years later. Lewenfus may not now ask the Court to go back on its prior ruling because Lewenfus did not conduct due diligence.
A different conclusion arises from Lewenfus’s argument that there is new law that must be considered. As the Court of Appeal Opinion was issued on May 15, 2021, after the previous motion for summary judgment was denied, Lewenfus has provided a satisfactory explanation for having not brought this matter to the Court’s attention in connection with the prior summary judgment motion, which was heard on February 8, 2018 – more than three years before the issuance of the Opinion.
Accordingly, the Court will consider Lewenfus’s renewed motion only with respect to the new law highlighted in the renewed motion.
2. Effect of the Court of Appeal’s Opinion.
Any principle or rule of law stated in an appellate court opinion that is necessary to the court's decision must be followed in all subsequent proceedings in the action. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491; Sargon Enterprises, Inc. v. Univ. of Southern Calif. (2013) 215 Cal.App.4th 1495, 1505-1506 (under doctrine of law of the case, "the case may not go over ground [on a remand] that has been covered before in an appellate court" (emphasis in original)).) The effect of an appellate opinion extends "to questions that were implicitly determined because they were essential to the prior decision." (Sargon Enterprises, Inc., 215 Cal.App.4th at 1505.) "The doctrine is one of procedure that prevents parties from seeking reconsideration of an issue already decided absent some significant change in circumstances." (Id. (internal citations and quotation marks omitted).) Law of the case applies when the issues and facts found remain substantially the same. (Nelson v. Tucker Ellis, LLP (2020) 48 Cal.App.5th 827, 837.)
Lewenfus identifies five relevant rulings in the Court of Appeal’s Opinion.
1. That the Court of Appeal has no jurisdiction to review the validity of the sheriff’s sale of Vaca’s residence to Lewenfus on November 3, 2010.
2. That all of Vaca’s claims against Howard in this action were known before the discharge of her bankruptcy because all claims were premised on the allegation that Howard conspired with Lewenfus and Garrard to suppress bids at the sheriff’s sale of Ana’s residence, and thus those claims, had they survived demurrer, would not have survived summary judgment on the basis of collateral estoppel.
3. That Valera was in privity with Vaca for the purposes of collateral estoppel.
4. That Plaintiffs failed to carry their burden to demonstrate that a “gross injustice” would occur in applying the collateral estoppel doctrine; as merely relying on suspicion, speculation, and conjecture does not raise a triable issue of material fact.
5. That judgments for Howard and Garrard and against Plaintiffs are affirmed.
Lewenfus argues that Plaintiffs’ second cause of action for conspiracy to defraud against him is barred by the doctrine of collateral estoppel. A review of the opinion of the Court of Appeal reveals that the Opinion, in relevant part, concerns whether Plaintiffs’ claims against Howard were barred by the doctrine of collateral estoppel. (RJN Exh. 19 p. 13). The Court of Appeal found that Plaintiffs’ claims were barred because Plaintiffs had knowledge of those claims prior to the discharge of Vaca’s bankruptcy action. (Id. at 17-19.) The Court of Appeal’s analysis hinged on the observation that,
“[A]s of the date [Ana] was evicted, she would have known that the property was sold at a sheriff’s sale by attorney Howard—and thus she had a claim against him for dispossessing her of the property. The fact that [Ana] may have subsequently developed the theory that Howard was working in concert with Lewenfus and Garrard does not excuse her failure to list the known claim against Howard.”
(RJN Exh. 19 p. 16 (Emphasis added).)
Therefore, there are no grounds to find that the opinion applies to Lewenfus’s argument because the Court of Appeal did not analyze whether any of Plaintiffs’ claims against Lewenfus were barred by collateral estoppel, and the question of whether there was sufficient evidence to support that finding on a motion for summary judgment was not reached.
3. A Triable Issue of Material Fact Exists.
The function of a motion for summary judgment is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima. (1991) 231 Cal.App.3d 367, 381-82.)
As to each claim framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ Proc. 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) The lack of opposition by a plaintiff is not grounds to grant a motion for summary judgment if a defendant cannot meet their initial burden of proof. (Thatcher v. Lucy Stores, Inc. (2000) 79 Cal.App.4th 1081, 1087.)
Once the defendant has met the initial burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
Lewenfus contends that Plaintiffs’ second cause of action against him is barred by the doctrine of collateral estoppel because, first, the cause of action against Lewenfus arises out of the same facts as the claim against Howard; and second, that Plaintiffs had actual knowledge of Vaca’s claim against Lewenfus when the bankruptcy claim was discharged.
"The doctrine of collateral estoppel precludes relitigation of an issue previously adjudicated if (1) the issue necessarily decided in the previous suit is identical to the issue sought to be relitigated; (2) there was a final judgment on the merits of the previous suit; and (3) the party against whom the plea is asserted was a party, or in privity with a party, to the previous suit." (Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 910; RJN, 22 Exh. 19 at p. 14.) As a matter of law, when a debtor knowingly omits a potential claim from bankruptcy schedules and obtains a discharge in bankruptcy court, the discharged debtor is estopped from later asserting the claim under the doctrine of judicial estoppel. (See, e.g.; Hamilton v. State Farm Fire & Casualty Co. ("Hamilton v. State Farm") (9th Cir. 2001) 270 F.3d 778, 783-84.)
A. Judicial Estoppel Does Not Bar Vaca’s Second Cause of Action Against Defendant
Defendant’s argument rests on the finding of the Court of Appeal that, because Plaintiffs knew of the facts that gave rise to their claim against Howard and did not include that claim in the bankruptcy schedule, the discharge of Vaca’s bankruptcy barred Plaintiffs’ claims against Howard by judicial estoppel. Therefore, it is argued, if Plaintiffs were aware of Lewenfus’s involvement in the scheme such that they knew the facts which gave rise to their claims against him, Plaintiffs’ second cause of action would logically also be barred by the doctrine of judicial estoppel and Defendant would be entitled to summary judgment.
Because Lewenfus cannot explain his failure to use the 2011 First Amended Complaint to support his first summary judgment motion, Lewenfus is left to rely on excerpts from the December 18, 2015 deposition of Ana Vaca to argue his renewed motion. These excerpts contain admissions by Vaca that she signed the bankruptcy papers which were filed with the bankruptcy court under penalty of perjury, and that everything set forth in them was true and correct to the best of her knowledge. (Motion Exh. B). This evidence does not show whether Plaintiffs had any knowledge of Lewenfus’s involvement in the allegedly fraudulent property sale, before Vaca’s bankruptcy was discharged. Defendant therefore has not met his burden of proof to establish the absence of triable issues of fact with respect to Plaintiffs’ cause of action against Lewenfus for conspiracy to defraud.
B. The Parties Against Whom Collateral Estoppel is Asserted Are the Same or in Privity With the Same Parties.
The Court of Appeal determined in its Opinion that German Valera is in privity with Ana Vaca for the purposes of this action. (RJN Exh. 19 p. 18). However, because Defendant cannot establish that no triable issue of fact exists regarding whether Vaca’s cause of action against Defendant for conspiracy to defraud is barred by collateral estoppel, Defendant similarly cannot establish the absence of a triable factual issue as to Valera’s cause of action.
Accordingly, Defendant’s motion for summary judgment is DENIED.
Moving Party to give notice.
IT IS SO ORDERED.
Dated: February 24, 2022
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.


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