Search

Attributes

This case was last updated from Los Angeles County Superior Courts on 07/10/2019 at 01:52:00 (UTC).

ANNIE PING JIANG ET AL VS DOCTORS BEST HOSPICE ET AL

Case Summary

On 02/27/2015 ANNIE PING JIANG filed a Contract - Other Contract lawsuit against DOCTORS BEST HOSPICE. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GREGORY W. ALARCON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3979

  • Filing Date:

    02/27/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GREGORY W. ALARCON

 

Party Details

Plaintiffs and Petitioners

JIANG ANNIE PING

NEW HOME FOR ME INC.

Defendants and Respondents

AJAGU UGOCHUKWU CHRISTOPHER

BERG TIA

DOCTORS BEST HOSPICE

DOES 1 THROUGH 50

FERREIRA INIS

HOME FOR ME LLC

JUDAH MICHAEL

MANTIS REALTORS

MOHAMMAD BIDI

BERG TIA; AKA

AJAGU CHRISTOPHER UGOCHUKWU

HOSPICE DOCTORS BEST

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

LAW OFFICE OF EUGENE ALKANA

Defendant and Respondent Attorneys

SHAFIE BEHROUZ ESQ.

TREYZON BORIS ESQ.

Other Attorneys

ALKANA EUGENE STEVEN ESQ.

MACIAS RICHARD MARK

 

Court Documents

Declaration

11/30/2018: Declaration

Notice Re: Continuance of Hearing and Order

7/2/2019: Notice Re: Continuance of Hearing and Order

DECLARATION OF BORIS TREYZON TO ASCERTAIN DATE OF SERVICE FOR DEFENDANTS

5/12/2015: DECLARATION OF BORIS TREYZON TO ASCERTAIN DATE OF SERVICE FOR DEFENDANTS

SUMMONS ON FIRST AMENDED COMPLAINT

6/11/2015: SUMMONS ON FIRST AMENDED COMPLAINT

REQUEST FOR ENTRY OF DEFAULT

9/4/2015: REQUEST FOR ENTRY OF DEFAULT

NOTICE OF POSTING JURY FEES

9/10/2015: NOTICE OF POSTING JURY FEES

REQUEST FOR ENTRY OF DEFAULT

11/5/2015: REQUEST FOR ENTRY OF DEFAULT

DEFENDANTS' EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL ARBITRATION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BEIIROUZ SHAFIE IN SUPPORT

3/11/2016: DEFENDANTS' EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR MOTION TO COMPEL ARBITRATION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BEIIROUZ SHAFIE IN SUPPORT

DEFENDANTS' EX PARTE APPLICATION FOR AN ORDER CONTINUING THE TRIAL DATE PURSUANT TO STIPULATION OF THE PARTIES; ETC.

3/14/2016: DEFENDANTS' EX PARTE APPLICATION FOR AN ORDER CONTINUING THE TRIAL DATE PURSUANT TO STIPULATION OF THE PARTIES; ETC.

DECLARATION OF EUGENE S. ALKANA RE: UNILATERAL FILING OF PLAINTIFFS' TRIAL EXHIBITS

5/31/2016: DECLARATION OF EUGENE S. ALKANA RE: UNILATERAL FILING OF PLAINTIFFS' TRIAL EXHIBITS

Minute Order

6/2/2016: Minute Order

REQUEST FOR DISMISSAL

6/7/2016: REQUEST FOR DISMISSAL

Minute Order

6/13/2016: Minute Order

NOTICE AND MOTION FOR LEAVE TO AMEND CROSS-COMPLAINT AND CONTINUE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF JOHN J. MENDOZA AND TIA BERG

8/2/2016: NOTICE AND MOTION FOR LEAVE TO AMEND CROSS-COMPLAINT AND CONTINUE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF JOHN J. MENDOZA AND TIA BERG

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION FOR LEAVE TO FILE FIRST (SIC) AMENDED CROSS-COMPLAINT AND CONTINUE TRIAL; ETC.

8/10/2016: PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION FOR LEAVE TO FILE FIRST (SIC) AMENDED CROSS-COMPLAINT AND CONTINUE TRIAL; ETC.

NOTICE AND MOTION TO COMPEL ATTENDANCE AND PRODUCTION OF DOCUMENTS AT DEPOSITION, AND CONTINUE TRIAL; REQUEST FOR SANCTIONS; ETC.

10/18/2016: NOTICE AND MOTION TO COMPEL ATTENDANCE AND PRODUCTION OF DOCUMENTS AT DEPOSITION, AND CONTINUE TRIAL; REQUEST FOR SANCTIONS; ETC.

SUBSTITUTION OF ATTORNEY

7/27/2017: SUBSTITUTION OF ATTORNEY

ANSWER OF PLAINTIFF AND CROSS-DEFENDANT ANNIE PING JIANG TO DEFENDANTS AND CROSS-COMPLAINANTS' FIRST AMENDED CROSS-COMPLAINT

12/5/2017: ANSWER OF PLAINTIFF AND CROSS-DEFENDANT ANNIE PING JIANG TO DEFENDANTS AND CROSS-COMPLAINANTS' FIRST AMENDED CROSS-COMPLAINT

153 More Documents Available

 

Docket Entries

  • 07/02/2019
  • Notice Re: Continuance of Hearing and Order; Filed by Clerk

    Read MoreRead Less
  • 05/29/2019
  • at 08:30 AM in Department 36, Gregory W. Alarcon, Presiding; Order to Show Cause Re: Dismissal - Held - Continued

    Read MoreRead Less
  • 05/29/2019
  • Minute Order ( (Order to Show Cause Re: Dismissal Matter is called for hearing.)); Filed by Clerk

    Read MoreRead Less
  • 05/15/2019
  • Declaration (of Eugene S. Alkana re OSC re Dismissal); Filed by Annie Ping Jiang (Legacy Party)

    Read MoreRead Less
  • 04/10/2019
  • Proof of Service by Mail; Filed by Doctors Best Hospice (Defendant); Inis Ferreira (Defendant); Tia; aka Berg (Defendant)

    Read MoreRead Less
  • 04/10/2019
  • Request for Judicial Notice; Filed by Doctors Best Hospice (Defendant); Inis Ferreira (Defendant); Tia; aka Berg (Defendant)

    Read MoreRead Less
  • 03/11/2019
  • at 08:30 AM in Department 36, Gregory W. Alarcon, Presiding; Order to Show Cause Re: Dismissal - Held - Continued

    Read MoreRead Less
  • 03/11/2019
  • Minute Order ( (Order to Show Cause Re: Dismissal Matter is called for hearing.)); Filed by Clerk

    Read MoreRead Less
  • 03/04/2019
  • Declaration (of Eugene S. Alkana in Response to Court Ordered OSC); Filed by Annie Ping Jiang (Legacy Party); New Home For Me, Inc. (Legacy Party)

    Read MoreRead Less
  • 02/22/2019
  • Notice of Status Conference and Order; Filed by Clerk

    Read MoreRead Less
329 More Docket Entries
  • 05/19/2015
  • Request for Judicial Notice; Filed by Michael Judah (Legacy Party); Tia; aka Berg (Defendant)

    Read MoreRead Less
  • 05/18/2015
  • Proof-Service/Summons; Filed by Annie Ping Jiang (Legacy Party); New Home For Me, Inc. (Legacy Party)

    Read MoreRead Less
  • 05/18/2015
  • FILING OF ORIGINAL PROOFS OF SERVICE OF SUMMONS, COMPLAINT, ET AL., RE: I. HOME FOR ME, LLC 2. DOCIORS BEST HOSPICE 3. MICHAEL JUDAH 4. INIS FERREIRA

    Read MoreRead Less
  • 05/12/2015
  • DECLARATION OF BORIS TREYZON TO ASCERTAIN DATE OF SERVICE FOR DEFENDANTS

    Read MoreRead Less
  • 05/12/2015
  • Declaration; Filed by Michael Judah (Legacy Party); Doctors Best Hospice (Defendant); Home For Me, LLC (Defendant)

    Read MoreRead Less
  • 03/16/2015
  • NOTICE OF PENDENCY OF ACTION

    Read MoreRead Less
  • 03/16/2015
  • Notice; Filed by Plaintiff/Petitioner

    Read MoreRead Less
  • 02/27/2015
  • COMPLAINT FOR: 1 RESCISSION BASED UPON FRAUD; ETC

    Read MoreRead Less
  • 02/27/2015
  • SUMMONS

    Read MoreRead Less
  • 02/27/2015
  • Complaint; Filed by Annie Ping Jiang (Legacy Party); New Home For Me, Inc. (Legacy Party)

    Read MoreRead Less

Tentative Rulings

Case Number: BC573979    Hearing Date: May 20, 2021    Dept: 36

 

*COUNSEL – YOU CANNOT SUBMIT ON THE TENTATIVE PRIOR TO THE HEARING* 

 

Superior Court of California

County of Los Angeles

Department 36

ANNIE PING JIANG, et al.,

Plaintiffs,

v.

DOCTORS BEST HOSPICE, et al.,

Defendants.

Case No.: BC573979

Hearing Date: 5/20/2021

[TENTATIVE] RULING RE: Proposed Settled Statement on Appeal of Appellant Michael Judah

Appellant Michael Judah’s Proposed Settled Statement on Appeal is approved.

 

Eligibility to Use Settled Statement

“An appellant may either elect . . . to use a settled statement as the record of the oral proceedings in the superior court, instead of a reporter's transcript.” (Cal. Rules of Court, Rule 8.137(a).)

An appellant may elect to use a settled statement as the record of the oral proceedings in the superior court without filing a motion if the designated oral proceedings in the superior court were not reported by a court reporter. (Id. at (b)(1).)

Defendant/Appellant Michael Judah (“Appellant”) filed a Notice of Designating Record on Appeal on May 19, 2020. After objections to the proposed settled statement of Michael Judah were sustained, Appellant filed an Amended Proposed Settled Statement on January 27, 2021.

Appellant’s Notice Designating Record on Appeal does not request to proceed by using a settled statement under Rule 8.137 for a record of oral proceedings in the superior court. (See Notice Designating Record on Appeal (filed May 19, 2020), ¶ 2(b)(3).) However, the Notice of Designating Record on Appeal for a separate Appeal filed December 9, 2020 requests to use a settled statement for the oral proceedings on October 28, 2016 for a motion to compel arbitration. (See Notice Designating Record on Appeal (filed March 3, 2020).) Appellant indicates these are the same proceedings to be included in Appellant’s settled statement. (See Notice Designating Record on Appeal (filed May 19, 2020), ¶ 6.) The amended proposed settled statement concerns the proceedings on October 28, 2016, which the Settled Statement and Notice Designating Record on Appeal filed by Defendants/Cross-Defendants and Appellants Ines Ferreira aka Tia Berg and Doctors Best Hospice, Inc. have indicated were not reported by a reporter. (See Notice Designating Record on Appeal (filed March 3, 2020); Proposed Settled Statement (filed May 22, 2020).) Based on the foregoing, the grounds are proper.

Contents of Proposed Settled Statement

California Rules of Court, Rule 8.137(d) provides a proposed settled statement must:

(1)  Contain a statement of the points the appellant is raising on appeal. If the condensed narrative under (2) covers only a portion of the oral proceedings, the appeal is then limited to the points identified in the statement unless the reviewing court determines that the record permits the full consideration of another point or, on motion, the reviewing court permits otherwise.

(2)  Contain a condensed narrative of the oral proceedings that the appellant specified under [Cal. Rules of Court, Rule 8.137](b)(3).

(A)  The condensed narrative must include a concise factual summary of the evidence and the testimony of each witness relevant to the points that the appellant states under (1) are being raised on appeal. Subject to the court's approval in settling the statement, the appellant may present some or all of the evidence by question and answer. Any evidence or portion of a proceeding not included will be presumed to support the judgment or order appealed from. . . .

There are no objections to the proposed settled statement on appeal, which mirrors that filed by Defendants/Cross-Defendants and Appellants Ines Ferreira aka Tia Berg and Doctors Best Hospice, Inc. Plaintiffs/Respondents Annie Ping Jiang and New Home for Me, Inc. have noted a small typographical error on page 3, line 25, in omission of the word “court” in the sentence “Mr. Shafie stated the court should adopt the tentative ruling.” The omission is noted and does not render the proposed settled statement unclear.

The proposed settled statement contains a statement of the points that the Moving Defendants are raising on appeal. (Proposed Settled Statement, at p. 2.)

The proposed settled statement contains a condensed narrative of the oral proceedings on October 28, 2016. (Proposed Settled Statement, at pp. 3-4.)

Last, a copy of the judgment being appealed is attached. (Proposed Settled Statement, Exh. A.)

Based on the foregoing, Appellant’s Proposed Settled Statement is approved.

Dated: ____________________________

Gregory Alarcon

Superior Court Judge

Case Number: BC573979    Hearing Date: January 25, 2021    Dept: 36

 

 

Superior Court of California

County of Los Angeles

Department 36

ANNIE PING JIANG, et al.,

Plaintiffs,

v.

DOCTORS BEST HOSPICE, et al.,

Defendants.

Case No.: BC573979

Hearing Date: 1/25/2021

[TENTATIVE] RULING RE: Motion to Tax Costs

The motion is denied.

Requests for Judicial Notice

Moving Defendant requests the court take judicial notice of the Judgment entered on November 21, 2019 in this action; and the first and Amended Memoranda of Costs after Judgment filed July 21, 2020 and August 10, 2020. The requests are granted. (CEC § 452(d).)

Stay Pending Resolution of Appeals

The court previously requested briefing from both parties on whether the instant hearing on the motion to tax costs is to be stayed pending resolution of the appeals in this action. Both parties filed supplemental responses asserting that it does not, on different grounds. Plaintiffs assert it does not pursuant to this court’s denial of Defendant’s motion for an order waiving security. Defendant asserts that the motion should not be stayed because a stay would have negative consequences by causing the amount of the judgment to be uncertain while pending the stay. Considering the foregoing, the court proceeds to address the merits.

Legal Standard

A prevailing party is entitled as a matter of right to recover costs in any action or proceeding, unless otherwise expressly provided by statute. (CCP § 1032(b).) Recoverable costs are limited to those both “reasonably necessary to the conduct of the litigation” and “reasonable in amount.” (CCP §§ 1033.5(c)(2), (3).)

If the items in a cost bill appear to be proper charges on their face, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) 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. (Id.) Supporting documentation must be submitted by the prevailing party only if costs are put in issue by a motion to tax costs. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.)

Discussion

Defendant Ines Ferreira aka Tia Berg (“Moving Defendant”) originally moved pursuant to Code of Civil Procedure section 685.070 to strike and tax costs claimed by Plaintiffs in a Memorandum of Costs filed August 4, 2020. Plaintiffs filed an Amended Memorandum of Costs on August 10, 2020. Moving Defendant then filed a supplemental memorandum contesting the Amended Memorandum of Costs, effectively an amended motion to tax costs. Plaintiffs have filed an opposition. Moving Defendant has filed a reply.

As an initial matter, the parties do not dispute that Plaintiffs are prevailing parties in this action. “Prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. (CCP § 1032 (a)(4).) Plaintiffs obtained Judgment in this action on November 21, 2019, confirming the Second Amended Arbitration Award, and awarding rescission, and attorney’s fees and costs.

Moving Defendant argues that the original Memorandum of Costs included costs of attorneys’ fees incurred before the entry of judgment in this matter of November 21, 2019. This argument was mooted in the filing of Plaintiffs’ Amended Memorandum of Costs, which changed the date range of costs claimed to December 9, 2019 through July 11, 2020. Moving Defendant have filed a supplemental memorandum contesting the Amended Memorandum of Costs, recognizing that the Plaintiffs’ claim has been restricted to fees incurred after entry of judgment and no longer contesting on this ground. (Supplement to Motion to Tax, at p. 2.)

Moving Defendant next argues Plaintiffs have not submitted sufficient evidence by time records or declarations to substantiate the claim for attorneys’ fees listed in Item 1(a)(7). Plaintiffs’ Opposition provides an itemization of the attorney’s fees requested. (Alkana Decl. ¶ 4, Exh. C.) The exhibit is redacted to exclude matters unrelated to the claim between Plaintiffs and these Defendants and any appellate work. (Id. ¶ 8.)

On reply Moving Defendant raises, without legal authority, general objections to the evidence raised in Plaintiffs’ opposition, asserting that certain evidence is vague or block-billed, though not explicitly listing the entries to which Moving Defendant objects. The objections primarily assert that certain entries are not sufficiently detailed, such as by not delineating, for an entry marked “Review transcripts – Prepare exhibits”, which particular exhibits this was meant to indicate, and how many pages of exhibits and transcripts there were. However, such details do not prevent the court from discerning which tasks were compensable. Nor do the allegedly block-billed entries prevent it from doing the same. (See also Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1325 (block billing not objectionable per se but may exacerbate vagueness).) As the argument fails to discern the entries and is made without legal authority or persuasive argument in support, Defendant does not carry the burden to show that the costs were not reasonably necessary or reasonable in cost on these grounds.

Last, the court requested the parties to brief to the issue of recoverable fees under Code of Civil Procedure, section 685.040. Defendant provided citation to Conservatorship of McQueen (2014) 59 Cal.4th 602, for the proposition that fees related to opposing Defendant’s motion to waive security were not listed as enforcement; however, the opinion does not relate to such motion. Plaintiffs provide citation to In re Gilman (B.A.P. 9th Cir. 2019) 603 B.R. 437, 443, aff'd sub nom. Phillips v. Gilman (9th Cir., Nov. 25, 2020, No. 19-60056), for the proposition that defensive action such as opposition of the motion to waive security constitutes enforcement. While neither case is directly on point, Plaintiffs’ case provides support that fees incurred to collect the judgment are recoverable, where Plaintiffs here opposed the motion to waive security in an attempt to collect on the judgment. (See generally id. at 442.) Next, the underlying Judgment awarded Plaintiffs’ attorney fees and costs.

Based on the foregoing, Defendant’s motion to tax costs is denied.

 

Dated: ____________________________

Gregory Alarcon

Superior Court Judge

Case Number: BC573979    Hearing Date: January 13, 2021    Dept: 36

 

Superior Court of California

County of Los Angeles

Department 36

ANNIE PING JIANG, et al.,

Plaintiffs,

v.

DOCTORS BEST HOSPICE, et al.,

Defendants.

Case No.: BC573979

Hearing Date: 1/13/2021

[TENTATIVE] RULING RE: Proposed Settled Statement on Appeal of Appellant Michael Judah

Respondents Annie Ping Jiang and New Home for Me, Inc.’s objection to the Proposed Settled Statement of Appellant Michael Judah is sustained.

Appellant Michael Judah is ordered to file and serve (1) a corrected Notice Designating Record on Appeal within ten days of this order; and (2) a corrected Proposed Settled Statement within fifteen days of this order.

Respondents may file and serve proposed amendments as provided under Rule 8.137 within thirty-five days of this order.

Eligibility to Use Settled Statement

“An appellant may either elect . . . to use a settled statement as the record of the oral proceedings in the superior court, instead of a reporter's transcript.” (Cal. Rules of Court, Rule 8.137(a).)

An appellant may elect to use a settled statement as the record of the oral proceedings in the superior court without filing a motion if the designated oral proceedings in the superior court were not reported by a court reporter. (Id. at (b)(1).)

Defendant/Appellant Michael Judah (“Appellant”) filed a Notice of Designating Record on Appeal on May 19, 2020, and a Proposed Settled Statement on Appeal on August 12, 2020.

Appellant’s Notice Designating Record on Appeal does not request to proceed by using a settled statement under Rule 8.137 for a record of oral proceedings in the superior court. (See Notice Designating Record on Appeal (filed May 19, 2020), ¶ 2(b)(3).)

The court nonetheless notes that in the Notice of Designating Record on Appeal for a separate Appeal filed December 9, 2020 requests to use a settled statement for the oral proceedings on October 28, 2016 for a motion to compel arbitration. (See Notice Designating Record on Appeal (filed March 3, 2020).) Appellant indicates these are the same proceedings to be included in Appellant’s settled statement. (See Notice Designating Record on Appeal (filed May 19, 2020), ¶ 6.)

Based on the foregoing, Appellant is to file an amended Notice Designating Record on Appeal indicating the proceedings for which Appellant intends to provide a settled statement on appeal.

Contents of Proposed Settled Statement

California Rules of Court, Rule 8.137(d) provides a proposed settled statement must:

(1)  Contain a statement of the points the appellant is raising on appeal. If the condensed narrative under (2) covers only a portion of the oral proceedings, the appeal is then limited to the points identified in the statement unless the reviewing court determines that the record permits the full consideration of another point or, on motion, the reviewing court permits otherwise.

(2)  Contain a condensed narrative of the oral proceedings that the appellant specified under [Cal. Rules of Court, Rule 8.137](b)(3).

(A)  The condensed narrative must include a concise factual summary of the evidence and the testimony of each witness relevant to the points that the appellant states under (1) are being raised on appeal. Subject to the court's approval in settling the statement, the appellant may present some or all of the evidence by question and answer. Any evidence or portion of a proceeding not included will be presumed to support the judgment or order appealed from. . . .

Plaintiffs Annie Ping Jiang and New Home for Me have objected to the settled statement on grounds that the settled statement filed by Appellant does not contain a condensed narrative of the oral proceedings, and is instead a summary of the Appellant’s arguments.

The court agrees. The portion of the proposed settled statement entitled “Condensed Narrative of Proceedings” provides information of the entire case rather than on the particular oral proceedings Appellant wishes to have established by the settled statement, and generally does not provide a “narrative of the oral proceedings that the appellant specified” or a “concise factual summary of the evidence and the testimony of each witness relevant to the points that the appellant states under (1) are being raised on appeal.”

Based on the foregoing, the objection to the proposed settled statement is sustained.

Appellant Michael Judah is ordered to file and serve (1) a corrected Notice Designating Record on Appeal within ten days of this order; and (2) a corrected Proposed Settled Statement within fifteen days of this order.

Respondents may file and serve proposed amendments as provided under Rule 8.137 within thirty-five days of this order.

Dated: ____________________________

Gregory Alarcon

Superior Court Judge

Case Number: BC573979    Hearing Date: October 20, 2020    Dept: 36

 

 

 *COUNSEL – YOU CANNOT SUBMIT ON THE TENTATIVE PRIOR TO THE HEARING*

 

Superior Court of California

County of Los Angeles

Department 36

ANNIE PING JIANG, et al.,

Plaintiffs,

v.

DOCTORS BEST HOSPICE, et al.,

Defendants.

Case No.: BC573979

Hearing Date: 10/20/2020

[TENTATIVE] RULING RE: Motion to Tax Costs

Hearing on the motion is continued for 30 days.

Both parties are to submit briefing on the following issues within 15 days: (a) whether the hearing on the motion is to be stayed pending resolution of the appeals in this action and (b) entitlement to attorneys’ fees pursuant to CCP § 685.040.

Plaintiffs may file a response on the following issues within 15 days: (a) the necessity of a motion pursuant to CCP § 685.080; and (b) Moving Defendant’s specific arguments regarding Plaintiffs’ evidence made on reply.

 

Procedural Considerations

Timely Filing of Memorandum of Costs

Respecting the costs to enforce a judgment, Code Civ. Proc., § 685.070 provides:

Before the judgment is fully satisfied but not later than two years after the costs have been incurred, the judgment creditor claiming costs under this section shall file a memorandum of costs with the court clerk and serve a copy on the judgment debtor. Service shall be made personally or by mail. The memorandum of costs shall be executed under oath by a person who has knowledge of the facts and shall state that to the person's best knowledge and belief the costs are correct, are reasonable and necessary, and have not been satisfied.

Defendant Ines Ferreira aka Tia Berg originally moved pursuant to Code of Civil Procedure section 685.070 to strike and tax costs on August 4, 2020. Plaintiffs filed an Amended Memorandum of Costs on August 10, 2020. Defendant then filed a supplemental memorandum contesting the Amended Memorandum of Costs.

The proof of service for the original Memorandum of Costs indicates service of the original Memorandum of Costs occurred by mail on Defendants Ines Ferreira and Doctors Best Hospice, Inc.; Bibi Mohammed; and Michael Judah; and by email only on Law Offices of Robert S. Robinson. The proof of service does not indicate the date of mailing. It is dated July 21, 2020.

The proof of service for the original Memorandum of Costs indicates service of the original Memorandum of Costs occurred by mail on Defendants Ines Ferreira and Doctors Best Hospice, Inc.; Bibi Mohammed; and Michael Judah; and by email only on Law Offices of Robert S. Robinson. The proof of service does not indicate the date of mailing. It is dated August 10, 2020.

Based on the foregoing, the date of service for each Memorandum of Costs is unclear. Plaintiffs are to brief the court at the hearing on the motion as to the date of service for each Memorandum of costs.

Timely Filing of Motion, Opposition, Reply

As noted above, the dates of service for the filing of the original and Amended Memorandum of Costs are unclear.

“Within 10 days after the memorandum of costs is served on the judgment debtor, the judgment debtor may apply to the court on noticed motion to have the costs taxed by the court. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. The court shall make an order allowing or disallowing the costs to the extent justified under the circumstances of the case.” (CCP § 685.070(c).) The ten-day period is extended under CCP § 1013 when the memorandum of costs was served by mail. (Id. at (f).)

Provided that the original Memorandum of Costs was served on July 21, 2020 by mail on the moving Defendant, the motion to tax costs was timely filed on August 4, 2020. (CCP § 685.070.) Next, provided that the Amended Memorandum of Costs was served on August 10, 2020 by mail on the moving Defendant, the supplemental filing, in effect a second motion to tax costs, was timely filed on August 24, 2020. (Id.)

Plaintiffs’ opposition was filed on October 8, 2020, and is two days untimely pursuant to CCP § 1005(b). Plaintiffs’ counsel has filed a declaration attesting that the late filing is due to counsel’s illness. (Alkana Decl. ¶ 4.) Defendant has not objected on timeliness grounds to the late filing and has submitted a reply. Based on the foregoing, the court will consider the late-filed opposition.

Defendant’s reply was timely filed on October 13, 2020.

Requests for Judicial Notice

Moving Defendant requests the court take judicial notice of the Judgment entered on November 21, 2019 in this action; and the first and Amended Memoranda of Costs after Judgment filed July 21, 2020 and August 10, 2020. The requests are granted. (CEC § 452(d).)

Stay Pending Resolution of Appeals

The court additionally requests briefing from both parties on whether the instant hearing is to be stayed pending resolution of the appeals in this action.

Legal Standard

Respecting costs and attorney’s fees to enforce a judgment, Code Civ. Proc., § 685.040 provides:

The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.

Recoverable costs are limited to those both “reasonably necessary to the conduct of the litigation” and “reasonable in amount.” (CCP §§ 1033.5(c)(2), (3).)

Discussion

Defendant Ines Ferreira aka Tia Berg (“Moving Defendant”) originally moved pursuant to Code of Civil Procedure section 685.070 to strike and tax costs claimed by Plaintiffs in a Memorandum of Costs filed August 4, 2020. Plaintiffs filed an Amended Memorandum of Costs on August 10, 2020. Moving Defendant then filed a supplemental memorandum contesting the Amended Memorandum of Costs, effectively an amended motion to tax costs. Plaintiffs have filed an opposition. Moving Defendant has filed a reply.

Moving Defendant argues that the original Memorandum of Costs included costs of attorneys’ fees incurred before the entry of judgment in this matter of November 21, 2019. This argument was mooted in the filing of Plaintiffs’ Amended Memorandum of Costs, which changed the date range of costs claimed to December 9, 2019 through July 11, 2020. Moving Defendant then filed a supplemental memorandum contesting the Amended Memorandum of Costs, recognizing that the Plaintiffs’ claim has been restricted to fees incurred after entry of judgment. (Supplement to Motion to Tax, at p. 2.) The Amended Memorandum of Costs did not change the amounts claimed for fees. (See Amended Memorandum of Costs,

Moving Defendant next argues that the Plaintiffs have not submitted sufficient evidence by time records or declarations to substantiate the claim for attorneys’ fees listed in Item 1(a)(7), and assert that Plaintiffs should have instead filed a motion for post-judgment costs and fees pursuant to Code of Civil Procedure, section 685.080. Plaintiffs have not addressed the Moving Defendant’s second contention.

Next, on reply Moving Defendant raises for the first time specific objections to the evidence raised in Plaintiffs’ opposition, asserting that certain evidence is vague or block-billed. In light that the arguments are directed to the evidence on opposition, but raise specific issues not included in the motion thus not permitting Plaintiffs an opportunity to respond, hearing on the motion is continued. (See In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.) Plaintiffs may file a response.

Entitlement to Attorney’s Fees

Respecting costs and attorney’s fees to enforce a judgment, Code Civ. Proc., § 685.040 provides:

The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5.

Neither party has briefed the issue of whether attorney’s fees may be recovered as post-judgment costs in this matter pursuant to Code of Civil Procedure, section 685.040. The court requests briefing on this issue from both parties and will consider the issue at the continued hearing.

 

 

Dated: ____________________________

Gregory Alarcon

Superior Court Judge

Case Number: BC573979    Hearing Date: October 14, 2020    Dept: 36

 

Superior Court of California

County of Los Angeles

Department 36

ANNIE PING JIANG, et al.,

Plaintiffs,

v.

DOCTORS BEST HOSPICE, et al.,

Defendants.

Case No.: BC573979

Hearing Date: 9/29/2020

[TENTATIVE] RULING RE: Proposed Settled Statement on Appeal of Appellants Ines Ferreira aka Tia Berg and Doctors Best Hospice, Inc.

The hearing on Defendants/Cross-Complainants and Appellants Ines Ferreira aka Tia Berg and Doctors Best Hospice, Inc.’s Proposed Settled Statement is continued for Plaintiffs to provide notice thereof.

 

Notice of Hearing

On May 22, 2020 Defendants/Cross-Complainants and Appellants Ines Ferreira aka Tia Berg and Doctors Best Hospice, Inc. (“Moving Defendants”) filed a proposed settled statement on appeal with the court, with proof of service by mail on Samuel and Samuel; Eugene S. Alkana; Michael Judah; Robert S. Robinson; and Deborah Morin, CSR. The proposed settled statement did not contain a hearing date. The court on August 25, 2020 set the hearing on the settled statement for September 29, 2020, directing Plaintiff to give notice to any interested parties in the Certificate of Mailing. The parties in the Certificate of Mailing are Eugene S. Alkana, attorney for Plaintiffs; and Randall A. Spencer, attorney for Defendant/Cross-Complainants Ines Ferreira aka Tia Berg and Doctors Best Hospice, Inc.

There are no further filings before the court indicating that other parties in this action received notice of the hearing date on September 29, 2020.

At the hearing on September 29, 2020, counsel for Plaintiffs and for Moving Defendants appeared. The motion was continued to October 14, 2020 and notice waived.

Based on the foregoing, the recommendation is to continue the hearing on the instant motion is continued for Plaintiffs to provide proper service of the hearing on the interested parties in the action.

Dated: ____________________________

Gregory Alarcon

Superior Court Judge

Case Number: BC573979    Hearing Date: October 05, 2020    Dept: 36

 

 

 

 

Superior Court of California

County of Los Angeles

Department 36

ANNIE PING JIANG, et al.,

Plaintiffs,

v.

DOCTORS BEST HOSPICE, et al.,

Defendants.

Case No.: BC573979

Hearing Date: 9/29/2020

[TENTATIVE] RULING RE: Proposed Settled Statement on Appeal of Appellant Michael Judah

No Stay Pending Appeal

As an initial matter, CCP § 917.4 provides:

The perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order appealed from directs the sale, conveyance or delivery of possession of real property which is in the possession or control of the appellant or the party ordered to sell, convey or deliver possession of the property, unless an undertaking in a sum fixed by the trial court is given . . . .

Accordingly, there is no stay of enforcement on the Judgment dated November 21, 2019, by the appeal dated December 9, 2019 filed by Ines Ferreira a/k/a Tia Berg and Doctors Best Choice f/k/a Doctors Best Hospice, Inc., appealing the Judgment Confirming Second Amended Arbitration Award.

 

Appointment of Elisor

To enforce a judgment for sale of real property, the court may use its discretionary powers to appoint the court clerk as an elisor to sign a recalcitrant seller's name to all documents necessary to transfer the property to the buyer. (See CCP § 128(a)(4); Blueberry Properties, LLC v. Chow (2014) 230 Cal.App.4th 1017, 1020-1021; see also Venice Canals Resident Home Owners Assn. v. Superior Court (1977) 72 Cal.App.3d 675, 679 (“The inherent power of the trial court to exercise reasonable control over litigation before it, as well as the inherent and equitable power to achieve justice and prevent misuse of processes lawfully issued is well established.”).)

On November 21, 2019, this court confirmed the Second Amended Arbitration Award. As part of the Judgment, the court ordered Respondents Michael Judah and/or Doctors Best Choice, Inc. f/d/b/a Doctors Best Hospice, and/or Home For Me, LLC, and/or Tia Berg, aka Inis Ferreira to convey to Plaintiffs title to the real property at 401 through 403 East Mission Road, San Gabriel, CA, legally described as:

All that certain real property situated in the County of Los Angeles, State of California, described as follows:

Parcel 1: (Assessor's Parcel No: 5368-019-031)

Those portions of Lots 25, 26, 27 and 28 In Block 14 of San Gabriel, in the City of San Gabriel, County of Los Angeles, State of California, as per map recorded in Book 16, Pages 31 and 32 of Miscellaneous Records, in the Office of the County Recorder of said County; lying- Northeasterly of —Mission-Drive, as described in deed to the County of Los Angeles, recorded September 30, 1912, in Book 5200, Page 166 of Deeds of said County.

Said land is shown on a Record of Survey filed in Book 6, Page 31 of Record of Surveys, in the Office of the County Recorder of said County.

Parcel 2: (Assessor's Parcel No: 5368-019-003)

The West 30 feet of those portions of Lots 1 and 2 in Block 14 of San Gabriel, in the City of San Gabriel, County of Los Angeles, State of California, as per map recorded in Book 16, Pages 31 and 32 of Miscellaneous Records, in the Office of the County Recorder of said County, lying Northerly of El Monte Road, as said Road existed August 16, 1905.

Except that portion of said land within the lines of Mission Drive, as described in the deed to said County, recorded In Book 5200, Page 166 of Deeds.

On December 9, 2019, an Abstract of Judgment was issued.

Plaintiffs’ counsel Eugene Alkana attests to having made written demand on Defendants to transfer title, and attaches the demand letter sent to Randall Spencer demanding that Doctors Best Choice convey title to the same property, and noting that if the conveyance was not signed within two weeks, Plaintiffs’ counsel would move forward with the instant motion for the court to appoint an elisor to sign the ordered conveyance. (Alkana Decl. ¶ 3, Exh. B.) Plaintiffs’ Counsel attests that as of the date of filing the declaration on August 24, 2020, Defendants have refused to do so. (Id. ¶ 3.) Plaintiff elsewhere states only that Plaintiff has not received a response to that email. (See Mot. at p. 3.)

There is no opposition or objection to the instant motion.

Nonetheless, the court notes the different statements as to whether Defense counsel has affirmatively refused to sign the grant deed, or has failed to respond to the demand letter, raising issues of proper receipt of the demand. The court will hear the parties at the hearing on this point, at which point the court will take the motion under submission.

Dated: ____________________________

Gregory Alarcon

Case Number: BC573979    Hearing Date: June 29, 2020    Dept: 36

 

Superior Court of California

County of Los Angeles

Department 36

ANNIE PING JIANG, et al.,

Plaintiffs,

v.

DOCTORS BEST HOSPICE, et al.

Defendants.

Case No.: BC573979

Hearing Date: 6/29/2020

[TENTATIVE] RULING RE: Motion to Waive Security

Defendant/Cross-Complainant Ines Ferreira a/k/a Tia Van Berg and Doctors Best Hospice, Inc.’s Motion to Waive Security is denied.

 

Legal Standard

Code of Civil Procedure, Section 995.240 provides:

The court may, in its discretion, waive a provision for a bond in an action or proceeding and make such orders as may be appropriate as if the bond were given, if the court determines that the principal is unable to give the bond because the principal is indigent and is unable to obtain sufficient sureties, whether personal or admitted surety insurers. In exercising its discretion the court shall take into consideration all factors it deems relevant, including but not limited to the character of the action or proceeding, the nature of the beneficiary, whether public or private, and the potential harm to the beneficiary if the provision for the bond is waived.

The party seeking relief from the requirement of posting a bond or undertaking has the burden of proof to show entitlement to such relief. (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 432; Williams v. Freedomcard, Inc. (2004) 123 Cal.App.4th 609, 614.) If supported by adequate evidence, the trial court may exercise its discretion by waiving the requirement of a security; but a weak and incomplete showing of indigency supports on appeal that the trial court did not act arbitrarily, capriciously, or absurdly in denying a motion for relief from the undertaking. (Williams, 123 Cal.App.4th at 609.)

A party seeking waiver must, in addition to showing indigency, also show an inability to obtain sufficient sureties, such showing an unsuccessful attempt to obtain a bond or surety. (Id. at 615.) Evidence that it would have been extremely difficult to obtain a bond is not sufficient for relief under CCP § 995.240. (See Markley v. Superior Court (1992) 5 Cal.App.4th 738, 749.)

Discussion

Evidentiary Objections

Ms. Berg’s Evidentiary Objections filed on February 6, 2020, to the Declaration of Eugene Alkana are ruled on as follows: (1) Sustained; (2) Sustained; (3) Overruled.

Ms. Berg’s Evidentiary Objections filed on February 6, 2020, to the Declaration of Carl Samuel are ruled on as follows: (1)-(2): Overruled.

Ms. Berg’s Evidentiary Objections filed on February 13, 2020, to the Declaration of Annie Jiang, in relation to the hearing on February 14, 2020, are ruled on as follows: (1), (3), (5): Overruled; (2), (4), (6): Sustained.

Plaintiffs’ Evidentiary Objections filed on March 11, 2020, to the Second Supplemental Declaration of Ines Ferreira, aka Tia Berg, are ruled on as follows: (1) Three objections on page 2: Sustained. (2) First objection on page 3: Sustained. (3) Subsequent three objections on page 3: Overruled. (4) Three objections on page 4: Sustained. (5) First objection on page 5: Overruled. (6) Second, third, and fourth objections on page 5: Sustained.

Ms. Berg’s Evidentiary Objections filed on March 12, 2020, to the Declaration of Annie Jiang are ruled on as follows: (1) Overruled; (2)-(3): Sustained; (4) Sustained in part as to the quoted language: “Tia Berg has not fully and completely disclosed her financial assets to the court. She owns and/or completely controls Studio City Care, LLC. She owns or controls Laurelwood Villa.”

Ms. Berg’s Evidentiary Objections filed on March 12, 2020, to the Declaration of Eugene Alkana in Support of Plaintiff’s Supplemental Opposition are ruled on as follows: (1) Sustained; (2) Overruled.

Ms. Berg’s Evidentiary Objections filed on March 13, 2020, to the Supplemental Declaration of Eugene S. Alkana are sustained.

Requests for Judicial Notice

Plaintiffs’ Requests for Judicial Notice filed March 11, 2020, are ruled on as follows:

(N)-(R): Granted. (S)-(DD): Denied.

Plaintiffs’ Requests for Judicial Notice filed February 3, 2020 are ruled on as follows:

(A), (J): Granted. (B)-(I), (K)-M): Denied.

Ms. Berg’s Requests for Judicial Notice filed December 17, 2019, are granted.

Defendant Bibi Mohammad’s Requests for Judicial Notice filed on January 31, 2020 ­are ruled on as follows: Exhibit A: Denied. Exhibit B: Granted.

Motion to Waive Security

Defendant/Cross-Complainant Ines Ferreira, a/k/a Tia Berg (“Defendant”) and Doctors Best Hospice, Inc. (together “Moving Defendants”), move the court to waive the requirement of security under CCP § 917.1(a)(1) for an appeal bond, so that enforcement of the judgment entered on November 21, 2019, will be stayed while an appeal filed on December 9, 2019, is pending.

This Court entered Judgment confirming a Second Amended Arbitration Award on November 21, 2019. (Defendant’s Request for Judicial Notice, Exh. F.) The Judgment confirmed the following: (1) Respondents including Ms. Berg are ordered to convey to Claimant Annie P. Jiang and/or her designated entity title to 401-403 East Mission Road, San Gabriel, California; (2) Respondents are ordered to pay certain sums of money no later than thirty days after the final award is confirmed by the Superior Court; and if so paid, Claimant would convey title of Wilshire Vista Manor back to Michael Judah and/or his designated entity, or if not paid, Petitioners are authorized to sell the business known as Wilshire Vista Manor and apply the proceeds first to the amount awarded to Petitioner; and (3) Claimants are entitled to costs of suit. (See id.)

Moving Defendants hope for Ms. Berg to recover the business known as Wilshire Vista Manor, which is at risk of sale if Respondents do not pay the sums owed, but asserts Ms. Berg’s indigency and inability to afford a bond or undertaking to stay enforcement of the judgment while the matter is on appeal, and inability to obtain sufficient sureties. (Motion pp. 3-4.) Ms. Berg also states that loss of the real estate located on Mission Road in San Gabriel will exacerbate her precarious financial condition. (Motion, p. 5.)

Relevant Law

CCP § 917.1 provides:

(a) Unless an undertaking is given, the perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order is for any of the following:

(1) Money or the payment of money, whether consisting of a special fund or not, and whether payable by the appellant or another party to the action. . . .

CCP § 917.4 provides:

The perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order appealed from directs the sale, conveyance or delivery of possession of real property which is in the possession or control of the appellant or the party ordered to sell, convey or deliver possession of the property, unless an undertaking in a sum fixed by the trial court is given . . . .

CCP § 995.240 provides:

The court may, in its discretion, waive a provision for a bond in an action or proceeding and make such orders as may be appropriate as if the bond were given, if the court determines that the principal is unable to give the bond because the principal is indigent and is unable to obtain sufficient sureties, whether personal or admitted surety insurers. In exercising its discretion the court shall take into consideration all factors it deems relevant, including but not limited to the character of the action or proceeding, the nature of the beneficiary, whether public or private, and the potential harm to the beneficiary if the provision for the bond is waived.

(1) Evidence of Indigency

The party seeking relief from the requirement of posting a bond or undertaking has the burden of proof to show entitlement to such relief. (Williams v. Freedomcard, Inc. (2004) 123 Cal.App.4th 609, 614.) “It is by no means certain, however, what the nature of that showing must be.” (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 432.) “[M]ere inconvenience or hardship alone is not a basis for having an undertaking requirement waived.” (Markley v. Superior Court (1992) 5 Cal.App.4th 738, 749.)

“If adequate evidence supports relief from the requirement of posting a bond or undertaking, the trial court may then exercise its discretion by waiving the requirement of a security.” (Williams, supra, at 614.) A “weak and incomplete showing of indigency” is sufficient to support a conclusion that “the trial court did not act arbitrarily, capriciously, or absurdly in denying [a] motion for relief from the undertaking.” (See id.)

Ms. Berg’s Declaration filed on December 17, 2019, attests to her income and assets. (Berg Decl., ¶ 3.) Defendant attests to a gross monthly income of $1,500; deductions and expenses of $1,500; no assets; and a bank account under $1,000. (Berg Decl. ¶ 3; Supplemental Berg Decl. ¶ 7.) Defendant attests Defendant has no jewelry, stocks or bonds, and no credit cards. (Id. ¶ 6.) Defendant attests to being self-employed, with all income based on received commissions, and normally paid in cash. (Supplemental Berg Decl. ¶ 8.) Defendant attests Judgment was entered against her in Los Angeles Superior Court Case No. 19GDCV0055 for approximately $50,000. (Berg Decl. ¶ 6.) Defendant attests she has a son, whose support expenses are paid by his father, and does not own real estate or a car. (Decl. Berg, ¶ 5, 6.)

On the court’s request, Defendant has filed supplemental evidence in support of indigency. Defendant filed evidence of a checking account with Wells Fargo, which Defendant opened on September 26, 2019. (Supplemental Berg Decl. ¶ 6.) The statements show balances of $20 on October 24, 2019; $4,244.26 on November 26, 2019; and $4,109.26 on December 24, 2019. (See id. Exh. N.) The amounts in the Wells Fargo account generally accord with Plaintiff’s financial declarations. (See Supplemental Berg Decl. ¶ 7, Exh. P.)

Plaintiffs assert Defendant is in possession of further assets and income than disclosed. Plaintiffs assert (1) Defendant has been employed by Laurelwood Villa since 2016 and is entitled to income from it (Opposition, p. 7); that (2) Defendant is the sole manager of Studio City Care, LLC, which owns the property where Laurelwood Villa is located, at 3034 Dona Nenita Place, Studio City, CA, worth over $2 million with $800,000 in equity in the property (Opposition, p. 7) and Defendant has executed various owner affidavits on behalf of Studio City Care, LLC for construction and improvements at 3034 Dona Nenita Place in 2016, 2018, and 2019, and received a Certificate of Occupancy for improvements on February 20, 2020 (Supplemental Opposition, p. 8). Plaintiffs’ supplemental opposition further asserts that (3) Defendant is in possession of another bank account, in which Defendant made deposits and paid expenses prior to November 2019; and (4) Defendant has personally received rent checks on the San Gabriel property that should have been Doctors’ as the owner of the San Gabriel Property; and other contentions.

In support of Plaintiffs’ assertion that Defendant has been employed by Laurelwood Villa and is entitled to income from it, Defendants have provided the Statement of Information for Laurelwood Villa, LLC, in which Ms. Berg is listed as Secretary as of October 4, 2019. (Alkana Decl. in Support of Supplemental Opposition, Exhibit CC.)

In support of Plaintiffs’ assertion of Studio City Care owning the property at 3034 Dona Nenita Place, Plaintiffs introduce evidence of (1) a Deed of Trust on the property between Studio City Care, LLC signed by Defendant as Agent for Studio City Care, LLC, and Comet Hyesung, LLC as beneficiary, dated July 20, 2018; (2) Los Angeles Department of Building & Safety Applications for Building Permits showing Studio City Care LLC as owner of the property, and signed by Ms. Berg as Ines Ferreira, issued on February 12, 2019; February 21, 2019; March 12, 2019; December 16, 2016; and November 9, 2018 (See Alkana Decl. Exhs. S, T, U, V, W, X.), as well as one allegedly initialed by Defendant on March 17, 2010 (See id. Exh. Y); and (3) a City of Los Angeles Certificate of Occupancy dated February 20, 2020, showing Studio City Care LLC as owner of the property (See id. Exh. Z).

In support of Plaintiffs’ assertion that Defendant is sole manager of Studio City Care, LLC, Defendants provide (1) the Articles of Organization of Studio City Care, LLC dated January 13, 2010, with Defendant as the Agent for Service of Process, stating the LLC would be managed by one manager, and showing Defendant’s name and signature as organizer (See id. Exh. AA); and (2) the Statement of Information of Studio City Care, LLC dated October 13, 2017, showing Defendant as the sole manager or member (See id. Exh. BB).

This evidentiary showing supports that Defendant is the sole manager or member of Studio City Care, LLC, and that Studio City Care, LLC, owns the property at 3034 Dona Nenita Place. The foregoing information was not provided on Plaintiff’s Declaration in support of indigency.

Defendant has filed a Declaration of Isabel Maria Ferreira da Costa, Defendant’s mother, who attests that Ms. Ferreira da Costa is the sole manager of Studio City Care, LLC. (Ferreira da Costa Decl. ¶¶ 2-3.) A copy of the Operating Agreement for Studio City Care, LLC dated January 13, 2010, is attached, showing that as of that date Ms. Ferreira da Costa was to be the sole member of Studio City Care, LLC. (See id. Exh. 1.) This status is not reflected in the public documents cited by Defendants, and there is accordingly a conflict in evidence.

Next, in support of Plaintiffs’ assertion that Defendant is in possession of another bank account not disclosed to the court, Plaintiffs provide in support the Declaration of Kevin Wang, a tenant at the property located at 403 E. Mission Street, San Gabriel, CA. (Wang Decl. ¶ 2.) Mr. Wang was a tenant at the property when transferred from Annie Jiang to Doctors Best Hospice. (Id.) Mr. Wang attests that in August 2019, Ms. Berg instructed him to make out payments to Laurel Wood and give payments to Defendant each month. (Wang Decl. ¶ 3.) Mr. Wang did so for August, September, and October 2019 by checks. (Id.) However, there is no record of such deposits in Defendant’s Wells Fargo bank account, which may be interpreted variously. (See Supplemental Berg Decl. ¶ 6, Exh. O.) Plaintiff has inconsistently addressed whether Plaintiff received rental income from the San Gabriel property. (See Berg Decl. ¶ 12; Motion, p. 3; Reply to Opposition by Bidi Mohammad, p. 3.)

The foregoing evidentiary showing by Ms. Berg, taken alone, would support a showing of indigency. However, the court is troubled by the conflicts in evidence and Defendant’s provision of limited evidence in support of the motion. On the whole, the Wells Fargo statements provide apparently limited information for a limited period. The limited information of three months of bank statements fail to provide a whole picture of Defendant’s financial condition to support a showing of indigency, in light of Plaintiffs’ significant evidence that Defendant’s showing of her financial condition is incomplete. The foregoing supports a reasonable inference that Defendant’s statements in support of indigency are incomplete. Accordingly, Ms. Berg does not carry the initial burden to establish sufficient evidence of indigency.

Though such finding is not relied upon by this court, the court is bolstered in its conclusion of Ms. Berg’s lack of forthrightness by the Second Amended Arbitration Award, in which the Honorable Michael C. Solner assessed Defendant’s credibility during arbitration and noted Defendants Berg and Judah were “not above taking liberties with the truth when it suited them.” (Defendant’s Request for Judicial Notice, Exh. H, at p. 8.)

The court next considers the factors under CCP § 995.240. Ms. Berg is a private defendant. If not waived, Defendant faces the potential loss of the business known as Wilshire Vista Manor, which is at risk of sale if Respondents do not pay the sums owed. (See Motion at pp. 3-4.) If waived, Plaintiffs would be harmed by incurring significant expenses on the property during the pendency of appeal, and by continued lien on the San Gabriel Property in favor of Mr. Counts, Defendant’s former lawyer. (See Jiang Decl. ¶¶ 6, 8.) In addition, Plaintiffs have been obligated to cure a threatened tax sale by paying over $100,000 to the Tax Collector’s Office on July 18, 2019. (Jiang Decl. ¶ 4.) As such, the balance of equities leans in Plaintiffs’ favor.

(2) Inability to Obtain Sureties

A party seeking a waiver must, in addition to showing indigency, also show an inability to obtain sufficient sureties, such as showing an unsuccessful attempt to obtain a bond or surety. (CCP § 995.240; Williams v. Freedomcard, Inc. (2004) 123 Cal.App.4th 609, 615.) However, by analogy to undertakings imposed on out-of-state plaintiffs, “if it is apparent from the plaintiff's declaration and financial information that obtaining an undertaking would be impossible, the law does not require the futile act of attempting to do so.” (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 436.)

On the court’s request, Defendant has filed further information on Defendant’s ability to obtain sufficient sureties. Defendant has provided two emails from the companies Court Surety and Bond Agency, and Bond Services of California, LLC. (Supplemental Berg Decl. ¶¶ 3, 4, Exhs. L, M.) Each requires for the appeal bond to be supported by 100% collateral, in the amount of $1,050,000. (See id.) The email from Court Surety Bond Agency provides methods of collateralization including cash, an irrevocable letter of credit from a bank, real estate, or marketable securities. (See id. Exh. L.) The email from Bond Services of California, LLC provides for methods of collateralization including cash, an irrevocable letter of credit from a bank, or real estate. (See id. Exh. M.)

Defendant attests to being unable to furnish any collateral of the type required because Defendant does not have $1,050,000 in cash, and does not own securities or real estate. (Id. ¶ 3.) Defendant further attests to not having friends or relatives with assets to serve as personal sureties, and that Defendant’s mother has declined to assist in satisfying the Judgment in this matter or serving as a personal surety. (Id. ¶ 9.)

While the foregoing does not show that Defendant has been actually declined from a bond, the evidence as a whole shows that Defendant as an individual would be unable to obtain a bond in the requisite amount, and has insufficient sureties of the requisite amount.

As with the above analysis, however, the court notes that Defendant’s evidentiary support for this portion appears to be incomplete. Defendant has not provided, for example, the financial statements provided to either surety group as part of the bond application. (See Supplemental Berg Decl. ¶¶ 3, 4, Exhs. L, M.) As such, the court is unable to ascertain whether Defendant has disclosed any involvement, for example, with Studio City Care, LLC.

 

(3) Conclusion

Accordingly, based on the foregoing, Ms. Berg’s request to waive security for a bond pursuant to CCP § 995.240 is denied.

Arbitrator’s Authority to Authorize Sale of Business

Ms. Berg’s motion secondarily asserts that the provision in the Arbitrator’s Award that authorizes the sale of the business, Wilshire Vista Manor, is unauthorized as a sanction. Defendant provides citation to Luster v. Collins, in which an arbitrator was found to have exceeded the arbitrator’s authority by ordering economic sanctions, when the parties had not so stipulated. (See (1993) 15 Cal.App.4th 1338, 1347.) However, Defendant has not shown how the ordered sale of Wilshire Vista Manor exceeds the arbitrator’s authority in the present circumstances beyond such conclusory allegation that it is a sanction. The court therefore declines to exercise judicial review of the Arbitrator’s Award on this basis. (See Marsch v. Williams (1994) 23 Cal.App.4th 238.)

Dated: ____________________________

Gregory Alarcon

Superior Court Judge

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases represented by Lawyer MACIAS RICHARD MARK

Latest cases represented by Lawyer ALKANA EUGENE STEVEN