Tentative Rulings
Case Number: BC630062 Hearing Date: July 23, 2020 Dept: 50
Superior Court of California
County of Los Angeles
Department 50
fraser ross, et al.,
Plaintiffs,
vs.
salus capital partners, llc, et al.,
Defendants.
|
Case No.:
|
BC 630062
|
Hearing Date:
|
July 23, 2020
|
Hearing Time:
|
2:00 p.m.
|
[TENTATIVE] ORDER
RE:
JOINT MOTION FOR STAY OF THE PROCEEDINGS BY PLAINTIFFS AND
CROSS-DEFENDANTS FRASER ROSS, A-LIST, INC., AND H-LIST, INC., DEFENDANTS AND
CROSS COMPLAINANTS SALUS CAPITAL PARTNERS, LLC AND HGI ASSET MANAGEMENT
HOLDINGS, INC., AND CROSS-DEFENDANT AND THIRD-PARTY DEFENDANT CHRISTOPHER LEE
|
AND RELATED
CROSS-ACTIONS
|
|
Background
Plaintiffs
and Cross-Defendants Fraser Ross (“Ross”), A-List, Inc. (“A-List”), and H-List,
Inc. (“H-List”) (A-List and H-List to be referred to jointly as “Kitson” and
Ross and Kitson collectively to be referred to as “Plaintiffs”), Defendants and
Cross-Complainants Salus Capital Partners, LLC (“Salus”) and HGI Asset
Management Holdings, LLC (“HGI”), and Cross-Defendant and Third-Party Defendant
Christopher Lee (“Lee”) (collectively, the Moving Parties”) move pursuant to \r\n \r\n Full.StateStatuteCite\r\n Cal. Civ. Proc. Code section 128\r\n","ParentCiteID":null,"Processed":true,"Citation":{"current_string":"Code of Civil Procedure section 128, subdivision (a)(3)","original_string":"Code of Civil Procedure section 128, subdivision (a)(3)","error":null,"fullText":"Code of Civil Procedure section 128, subdivision (a)(3)","refers_to_cite":null,"shortText":"Cal. Civ. Proc. Code section 128","isParallel":false,"parallel":"","start":1056,"end":1111,"pattern":"Full.StateStatuteCite","readOrderIndex":1056,"index":476,"citeType":1,"CiteShepSignal":11,"CiteShepSignalLink":"https://advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:805C-5930-Y87G-D3TH-00000-00","story":"wdMainTextStory","PinPage":"","name":"CITRUS_BOOKMARK1","foundBy":"","FullTextParen":null,"ParentheticalType":null,"IntermediateCite":false,"TOAHeading":null,"ts":{"$id":"1","End":558,"Offset":580,"Start":0,"nref":0,"nind":0,"story":"wdMainTextStory","namedRanges":[{"$id":"2","Name":"CITRUS_BOOKMARK1","Range":{"$id":"3","ts":{"$ref":"1"},"_Start":476,"_End":531,"_Text":"Plaintiffs and Cross-Defendants Fraser Ross (“Ross”), A-List, Inc. (“A-List”), and H-List, Inc. (“H-List”) (A-List and H-List to be referred to jointly as “Kitson” and Ross and Kitson collectively to be referred to as “Plaintiffs”), Defendants and Cross-Complainants Salus Capital Partners, LLC (“Salus”) and HGI Asset Management Holdings, LLC (“HGI”), and Cross-Defendant and Third-Party Defendant Christopher Lee (“Lee”) (collectively, the Moving Parties”) move pursuant to Code of Civil Procedure section 128, subdivision (a)(3) for the following relief:\r"},"foundBy":"","pattern":"Full.StateStatuteCite","tabName":"Cal. Civ. Proc. Code section 128"}],"Range":{"$id":"4","ts":{"$ref":"1"},"_Start":0,"_End":558,"_Text":"Plaintiffs and Cross-Defendants Fraser Ross (“Ross”), A-List, Inc. (“A-List”), and H-List, Inc. (“H-List”) (A-List and H-List to be referred to jointly as “Kitson” and Ross and Kitson collectively to be referred to as “Plaintiffs”), Defendants and Cross-Complainants Salus Capital Partners, LLC (“Salus”) and HGI Asset Management Holdings, LLC (“HGI”), and Cross-Defendant and Third-Party Defendant Christopher Lee (“Lee”) (collectively, the Moving Parties”) move pursuant to Code of Civil Procedure section 128, subdivision (a)(3) for the following relief:\r"}},"master":"___RESULTS_1","kernel_data":"Code of Civil Procedure section 128, subdivision (a)(3)Code of Civil Procedure section 128, subdivision (a)(3)Code of Civil Procedure section 128, subdivision (a)(3)Full.StateStatuteCitecite__AfterStatutoryCite__AfterStatutoryCite._PatternAfterStatutoryCite.AfterStatutoryCite__AfterStatutoryCite.StatutoryCodeEditionCite()__AfterStatutoryCite.StatutoryCodeEditionCite.((__AfterStatutoryCite.StatutoryCodeEditionCite.))__AfterStatutoryCite.StatutoryCodeEditionCite._PatternStatutoryCodeEditionCite.StatutoryCodeEditionCite__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition._PatternStatutoryCodeEdition.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.PublisherDeering __AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year._PatternYear.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year.YearJURISDICTIONYESPUBLISHERDeeringStateStatuteCode of Civil Procedure section 128, subdivision (a)(3)StateStatute.__SectionOrSections section 128, subdivision (a)(3)StateStatute.__SectionOrSections.,,StateStatute.__SectionOrSections._PatternX1.X1StateStatute.__SectionOrSections.RequiredSectionSymbol section StateStatute.__SectionOrSections.RequiredSectionSymbol._PatternRequiredSectionSymbol.RequiredSectionSymbolStateStatute.__SectionOrSections.RequiredSectionSymbol.SectionSymbol§StateStatute.__SectionOrSections.Subdsubdivision (a)(3)StateStatute.__SectionOrSections.Subd._PatternSubdsList.SubdsListStateStatute.__SectionOrSections.Subd.First(a)(3)StateStatute.__SectionOrSections.Subd.First._PatternSubdScalarOrRangeCal.SubdScalarOrRangeCalStateStatute.__SectionOrSections.Subd.First.First(a)(3)StateStatute.__SectionOrSections.Subd.subdivisionssubdivisionStateStatute.__SectionOrSections.X1128StateStatute._PatternStateStatutes.StateStatutesStateStatute.CalCal.StateStatute.CaliforniaCodeSubjectCiv. Proc. CodeStateStatute.Sectionsectionmaster_name___RESULTS_1"},"IconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"Display":"Code of Civil Procedure section 128, subdivision (a)(3)","CitationRichText":"Code of Civil Procedure section 128, subdivision (a)(3)","IconShepardSignal":{"Id":11,"Title":"Positive treatment - statutes","IconType":0,"ImagePath":"/Content/Images/IconSignalPositive.gif","Description":null},"ShepardSignalLink":"https://advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:805C-5930-Y87G-D3TH-00000-00","ShowShepardSignal":true,"ShowParentLink":false,"ParentCitation":null,"SuggestionsForCitation":[],"SuggestionsForCite":[],"SelectedSuggestion":null,"IsSuggestionEnabled":false,"UseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"UseSuggestionIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"OriginalUseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"CitationMarkupText":"Code of Civil Procedure section 128, subdivision (a)(3)","ShortText":"Cal. Civ. Proc. Code section 128","IsParentCorrect":true,"IsParentCorrectableConfirmed":false,"IsParentUnknownConfirmed":false,"IsParentCorrectable":false,"IsParentUnknown":false,"CitationOriginalText":"Code of Civil Procedure section 128, subdivision (a)(3)","ModifiedCiteText":null,"MarkUp":null,"IsCheckCurrent":false,"PreviousCitationRetain":"Code of Civil Procedure section 128, subdivision (a)(3)"},"CQ":"","TOA":"","html":"\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n
Code of Civil Procedure section 128,\r\nsubdivision (a)(3)
\r\n\r\n
\r\n\r\n\r\n\r\n\r\n"}" docpart="A3289A6B26A34DABBB4D405B27CCB3B9">Code of Civil Procedure section 128, subdivision (a)(3)Code of Civil Procedure section 128, subdivision (a)(3)Code of Civil Procedure section 128, subdivision (a)(3)Full.StateStatuteCitecite__AfterStatutoryCite__AfterStatutoryCite._PatternAfterStatutoryCite.AfterStatutoryCite__AfterStatutoryCite.StatutoryCodeEditionCite()__AfterStatutoryCite.StatutoryCodeEditionCite.((__AfterStatutoryCite.StatutoryCodeEditionCite.))__AfterStatutoryCite.StatutoryCodeEditionCite._PatternStatutoryCodeEditionCite.StatutoryCodeEditionCite__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition._PatternStatutoryCodeEdition.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.PublisherDeering __AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year._PatternYear.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year.YearJURISDICTIONYESPUBLISHERDeeringStateStatuteCode of Civil Procedure section 128, subdivision (a)(3)StateStatute.__SectionOrSections section 128, subdivision (a)(3)StateStatute.__SectionOrSections.,,StateStatute.__SectionOrSections._PatternX1.X1StateStatute.__SectionOrSections.RequiredSectionSymbol section StateStatute.__SectionOrSections.RequiredSectionSymbol._PatternRequiredSectionSymbol.RequiredSectionSymbolStateStatute.__SectionOrSections.RequiredSectionSymbol.SectionSymbol§StateStatute.__SectionOrSections.Subdsubdivision (a)(3)StateStatute.__SectionOrSections.Subd._PatternSubdsList.SubdsListStateStatute.__SectionOrSections.Subd.First(a)(3)StateStatute.__SectionOrSections.Subd.First._PatternSubdScalarOrRangeCal.SubdScalarOrRangeCalStateStatute.__SectionOrSections.Subd.First.First(a)(3)StateStatute.__SectionOrSections.Subd.subdivisionssubdivisionStateStatute.__SectionOrSections.X1128StateStatute._PatternStateStatutes.StateStatutesStateStatute.CalCal.StateStatute.CaliforniaCodeSubjectCiv. Proc. CodeStateStatute.Sectionsectionmaster_name___RESULTS_1","Markup":"Code of Civil Procedure section 128, subdivision (a)(3)","Master":"___RESULTS_1","name":"CITRUS_BOOKMARK1","Original_string":"Code of Civil Procedure section 128, subdivision (a)(3)","Page":null,"Parallel":"","Pattern":"Full.StateStatuteCite","PinPage":"","ReadOrderIndex":1056,"Refers_To":null,"ShortText":"Cal. Civ. Proc. Code section 128","Start":1056,"Story":"wdMainTextStory"},"TOA":"","html":"\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n
Code\r\nof Civil Procedure section 128, subdivision (a)(3)
\r\n\r\n
\r\n\r\n\r\n\r\n\r\n"}" docpart="A3289A6B26A34DABBB4D405B27CCB3B9">Code of Civil
Procedure section 128, subdivision (a)(3) for the
following relief:
Entry of judgment
concerning all of Salus’s cross-claims against Kitson, pursuant to the
stipulation and stipulated form of judgment filed concurrently with the instant
motion; and
an order staying this
action until there is resolution on Kitson’s appeal from the Court’s August 29,
2019 summary adjudication order (the “August 29 Order”).
On
August 29, 2019, the Court granted the motion for summary judgment by Defendant
Spencer Spirit Holdings, Inc. (“Spencer”) as to Plaintiffs’ operative Third
Amended Complaint (“TAC”) and also granted the motion for summary adjudication
by Spencer, BHK Investments, LLC (“BHK”), Salus, and HGI (collectively, the
“Lender Defendants”) on the third, fourth, and fifth causes of action of the
TAC. As a result of that order, the only claims remaining in the TAC to be
tried were Ross’s cause of action for violation of \r\n \r\n Full.StateStatuteCite\r\n Cal. Bus. & Prof. Code section 17200\r\n","ParentCiteID":null,"Processed":true,"Citation":{"current_string":"Business and Professions Code section 17200","original_string":"Business and Professions Code section 17200","error":null,"fullText":"Business and Professions Code section 17200","refers_to_cite":null,"shortText":"Cal. Bus. & Prof. Code section 17200","isParallel":false,"parallel":"","start":1996,"end":2039,"pattern":"Full.StateStatuteCite","readOrderIndex":1996,"index":517,"citeType":1,"CiteShepSignal":13,"CiteShepSignalLink":"https://advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:805B-HVP1-2NSD-N4VY-00000-00","story":"wdMainTextStory","PinPage":"","name":"CITRUS_BOOKMARK2","foundBy":"","FullTextParen":null,"ParentheticalType":null,"IntermediateCite":false,"TOAHeading":null,"ts":{"$id":"5","End":1011,"Offset":1479,"Start":0,"nref":0,"nind":0,"story":"wdMainTextStory","namedRanges":[{"$id":"6","Name":"CITRUS_BOOKMARK2","Range":{"$id":"7","ts":{"$ref":"5"},"_Start":517,"_End":560,"_Text":"On August 29, 2019, the Court granted the motion for summary judgment by Defendant Spencer Spirit Holdings, Inc. (“Spencer”) as to Plaintiffs’ operative Third Amended Complaint (“TAC”) and also granted the motion for summary adjudication by Spencer, BHK Investments, LLC (“BHK”), Salus, and HGI (collectively, the “Lender Defendants”) on the third, fourth, and fifth causes of action of the TAC. As a result of that order, the only claims remaining in the TAC to be tried were Ross’s cause of action for violation of Business and Professions Code section 17200 against the Lender Defendants (except for Spencer) and Ross’s cause of action for unjust enrichment/constructive trust against Salus and HGI. On December 26, 2019, Plaintiffs filed a request for dismissal of the TAC as to Salus and HGI. The dismissal was entered as requested on December 27, 2019. On July 2, 2020, the Court entered final judgment in favor of Salus on the TAC. Therefore, all of Plaintiffs’ claims against Salus have been resolved. \r"},"foundBy":"","pattern":"Full.StateStatuteCite","tabName":"Cal. Bus. & Prof. Code section 17200"}],"Range":{"$id":"8","ts":{"$ref":"5"},"_Start":0,"_End":1011,"_Text":"On August 29, 2019, the Court granted the motion for summary judgment by Defendant Spencer Spirit Holdings, Inc. (“Spencer”) as to Plaintiffs’ operative Third Amended Complaint (“TAC”) and also granted the motion for summary adjudication by Spencer, BHK Investments, LLC (“BHK”), Salus, and HGI (collectively, the “Lender Defendants”) on the third, fourth, and fifth causes of action of the TAC. As a result of that order, the only claims remaining in the TAC to be tried were Ross’s cause of action for violation of Business and Professions Code section 17200 against the Lender Defendants (except for Spencer) and Ross’s cause of action for unjust enrichment/constructive trust against Salus and HGI. On December 26, 2019, Plaintiffs filed a request for dismissal of the TAC as to Salus and HGI. The dismissal was entered as requested on December 27, 2019. On July 2, 2020, the Court entered final judgment in favor of Salus on the TAC. Therefore, all of Plaintiffs’ claims against Salus have been resolved. \r"}},"master":"___RESULTS_2","kernel_data":"Business and Professions Code section 17200Business and Professions Code section 17200Business and Professions Code section 17200Full.StateStatuteCitecite__AfterStatutoryCite__AfterStatutoryCite._PatternAfterStatutoryCite.AfterStatutoryCite__AfterStatutoryCite.StatutoryCodeEditionCite()__AfterStatutoryCite.StatutoryCodeEditionCite.((__AfterStatutoryCite.StatutoryCodeEditionCite.))__AfterStatutoryCite.StatutoryCodeEditionCite._PatternStatutoryCodeEditionCite.StatutoryCodeEditionCite__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition._PatternStatutoryCodeEdition.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.PublisherDeering __AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year._PatternYear.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year.YearJURISDICTIONYESPUBLISHERDeeringStateStatuteBusiness and Professions Code section 17200 StateStatute.__SectionOrSections section 17200 StateStatute.__SectionOrSections._PatternX1.X1StateStatute.__SectionOrSections.RequiredSectionSymbol section StateStatute.__SectionOrSections.RequiredSectionSymbol._PatternRequiredSectionSymbol.RequiredSectionSymbolStateStatute.__SectionOrSections.RequiredSectionSymbol.SectionSymbol§StateStatute.__SectionOrSections.X117200StateStatute._PatternStateStatutes.StateStatutesStateStatute.CalCal.StateStatute.CaliforniaCodeSubjectBus. & Prof. CodeStateStatute.Sectionsectionmaster_name___RESULTS_2"},"IconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"Display":"Business and Professions Code section 17200","CitationRichText":"Business and Professions Code section 17200","IconShepardSignal":{"Id":13,"Title":"Negative treatment - statutes","IconType":0,"ImagePath":"/Content/Images/IconSignalAlert.png","Description":null},"ShepardSignalLink":"https://advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:805B-HVP1-2NSD-N4VY-00000-00","ShowShepardSignal":true,"ShowParentLink":false,"ParentCitation":null,"SuggestionsForCitation":[],"SuggestionsForCite":[],"SelectedSuggestion":null,"IsSuggestionEnabled":false,"UseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"UseSuggestionIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"OriginalUseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"CitationMarkupText":"Business and Professions Code section 17200","ShortText":"Cal. Bus. & Prof. Code section 17200","IsParentCorrect":true,"IsParentCorrectableConfirmed":false,"IsParentUnknownConfirmed":false,"IsParentCorrectable":false,"IsParentUnknown":false,"CitationOriginalText":"Business and Professions Code section 17200","ModifiedCiteText":null,"MarkUp":null,"IsCheckCurrent":false,"PreviousCitationRetain":"Business and Professions Code section 17200"},"CQ":"","TOA":"","html":"\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n
Business and Professions Code section\r\n17200
\r\n\r\n
\r\n\r\n\r\n\r\n\r\n"}" docpart="A3289A6B26A34DABBB4D405B27CCB3B9">Business and Professions Code section 17200Business and Professions Code section 17200Business and Professions Code section 17200Full.StateStatuteCitecite__AfterStatutoryCite__AfterStatutoryCite._PatternAfterStatutoryCite.AfterStatutoryCite__AfterStatutoryCite.StatutoryCodeEditionCite()__AfterStatutoryCite.StatutoryCodeEditionCite.((__AfterStatutoryCite.StatutoryCodeEditionCite.))__AfterStatutoryCite.StatutoryCodeEditionCite._PatternStatutoryCodeEditionCite.StatutoryCodeEditionCite__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition._PatternStatutoryCodeEdition.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.PublisherDeering __AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year._PatternYear.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year.YearJURISDICTIONYESPUBLISHERDeeringStateStatuteBusiness and Professions Code section 17200 StateStatute.__SectionOrSections section 17200 StateStatute.__SectionOrSections._PatternX1.X1StateStatute.__SectionOrSections.RequiredSectionSymbol section StateStatute.__SectionOrSections.RequiredSectionSymbol._PatternRequiredSectionSymbol.RequiredSectionSymbolStateStatute.__SectionOrSections.RequiredSectionSymbol.SectionSymbol§StateStatute.__SectionOrSections.X117200StateStatute._PatternStateStatutes.StateStatutesStateStatute.CalCal.StateStatute.CaliforniaCodeSubjectBus. & Prof. CodeStateStatute.Sectionsectionmaster_name___RESULTS_2","Markup":"Business and Professions Code section 17200","Master":"___RESULTS_2","name":"CITRUS_BOOKMARK2","Original_string":"Business and Professions Code section 17200","Page":null,"Parallel":"","Pattern":"Full.StateStatuteCite","PinPage":"","ReadOrderIndex":1996,"Refers_To":null,"ShortText":"Cal. Bus. & Prof. Code section 17200","Start":1996,"Story":"wdMainTextStory"},"TOA":"","html":"\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n
Business\r\nand Professions Code section 17200
\r\n\r\n
\r\n\r\n\r\n\r\n\r\n"}" docpart="A3289A6B26A34DABBB4D405B27CCB3B9">Business and
Professions Code section 17200 against the Lender
Defendants (except for Spencer) and Ross’s cause of action for unjust
enrichment/constructive trust against Salus and HGI. On December 26, 2019,
Plaintiffs filed a request for dismissal of the TAC as to Salus and HGI. The
dismissal was entered as requested on December 27, 2019. On July 2, 2020, the
Court entered final judgment in favor of Salus on the TAC. Therefore, all of
Plaintiffs’ claims against Salus have been resolved.
Salus
(and HGI) filed a Cross-Complaint against Kitson and Lee on October 16, 2018. As
part of a settlement agreement, on June 15, 2020, Salus (and HGI), on the one
hand, and Plaintiffs, on the other hand, filed a re-submitted stipulation for
entry of judgment in favor of Salus and against Kitson on the Salus/HGI Cross-Complaint.
The Stipulated Judgment was entered on June 16, 2020. Therefore, all of Salus’s
cross-claims against Plaintiffs have now been resolved.
On
October 23, 2018, Spencer and BHK filed a Cross-Complaint against Plaintiffs,
and on October 24, 2018, Spencer and BHK filed a third-party complaint against
Lee. On March 11, 2020, the Court issued an order granting in party and denying
in part Plaintiffs’ motion for summary adjudication as to certain causes of
action asserted in Spencer and BHK’s Cross-Complaint. As a result of that
order, the remaining claims asserted by Spencer and BHK against Plaintiffs are
a claim for breach of contract and a claim for fraud.
Kitson
has filed an appeal of the August 29 Order. In light of the appeal, and in
light of the resolution of all claims between Kitson and Salus, the Moving
Parties now request that the Court impose a stay of the instant action pending
the outcome of the appeal. Spencer and BHK oppose.
Discussion
“. ( 3 ) To provide for the orderly conduct of proceedings before it , or its officers .","QuotationType":"SentenceQuote","EditedQuotationText":"Every court shall have the power to do all of the following: . . . . (3) To provide for the orderly conduct of proceedings before it, or its officers.","MarkedQuotationText":"Every court shall have the power to do all of the following: . . . . (3)To provide for the orderly conduct of proceedings before it, or its officers.","CCMarkedQuotationText":" Every court shall have the power to do all of the following : . . . . ( 3 ) To provide for the orderly conduct of proceedings before it , or its officers .","SuggestionForQuote":"Correct quotation (No suggestions)","CCSuggestionForQuote":"Correct quotation (No suggestions)","CitationText":"Code Civ. Proc., § 128, subd. (a)(3)","ModifiedCitationText":"Code Civ. Proc., § 128, subd. (a)(3)","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":[],"IconIndicator":8,"UseCurrentIconIndicator":8,"UseCurrentMarkQuoteIconIndicator":0,"UseSuggestionIconIndicator":8,"IsEnabled":false,"IsUserConfirmed":false,"SuggestionCount":0,"IsManagedCite":true,"PinpointPageText":"Reassign pinpoint page","IsViewPinpointPage":false,"IsCorrect":true,"ShowPinPointPage":false,"SuggestionVisibility":false,"SuggestedDocUri":"Every%20court%20shall%20have%20the%20power%20to%20do%20all%20of%20the%20following:%20.%20.%20.%20.%20(3)%20To%20provide%20for%20the%20orderly%20conduct%20of%20proceedings%20before%20it,%20or%20its%20officers."}}}' docpart="A3289A6B26A34DABBB4D405B27CCB3B9">Every court shall have the power to do all of the following: .
. . . (3) To provide for the orderly conduct of proceedings before it, or its
officers.” (\r\n \r\n Full.StateStatuteCite\r\n Cal. Civ. Proc. Code §128\r\n","ParentCiteID":null,"Processed":true,"Citation":{"current_string":"Code Civ. Proc., § 128, subd. (a)(3)","original_string":"Code Civ. Proc., § 128, subd. (a)(3)","error":null,"fullText":"Code Civ. Proc., § 128, subd. (a)(3)","refers_to_cite":null,"shortText":"Cal. Civ. Proc. Code §128","isParallel":false,"parallel":"","start":3934,"end":3970,"pattern":"Full.StateStatuteCite","readOrderIndex":3934,"index":154,"citeType":1,"CiteShepSignal":0,"CiteShepSignalLink":null,"story":"wdMainTextStory","PinPage":"","name":"CITRUS_BOOKMARK3","foundBy":"","FullTextParen":null,"ParentheticalType":null,"IntermediateCite":false,"TOAHeading":null,"ts":{"$id":"9","End":405,"Offset":3780,"Start":0,"nref":0,"nind":0,"story":"wdMainTextStory","namedRanges":[{"$id":"10","Name":"CITRUS_BOOKMARK3","Range":{"$id":"11","ts":{"$ref":"9"},"_Start":154,"_End":190,"_Text":"“Every court shall have the power to do all of the following: . . . . (3) To provide for the orderly conduct of proceedings before it, or its officers.” (Code Civ. Proc., § 128, subd. (a)(3).) The “case management tools available to trial courts” include “the inherent authority to stay an action when appropriate.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758.) \r"},"foundBy":"","pattern":"Full.StateStatuteCite","tabName":"Cal. Civ. Proc. Code §128"},{"$id":"12","Name":"CITRUS_BOOKMARK4","Range":{"$id":"13","ts":{"$ref":"9"},"_Start":317,"_End":401,"_Text":"“Every court shall have the power to do all of the following: . . . . (3) To provide for the orderly conduct of proceedings before it, or its officers.” (Code Civ. Proc., § 128, subd. (a)(3).) The “case management tools available to trial courts” include “the inherent authority to stay an action when appropriate.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758.) \r"},"foundBy":"","pattern":"Full.CaseCitation","tabName":"18 Cal. 4th 739"}],"Range":{"$id":"14","ts":{"$ref":"9"},"_Start":0,"_End":405,"_Text":"“Every court shall have the power to do all of the following: . . . . (3) To provide for the orderly conduct of proceedings before it, or its officers.” (Code Civ. Proc., § 128, subd. (a)(3).) The “case management tools available to trial courts” include “the inherent authority to stay an action when appropriate.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758.) \r"}},"master":"___RESULTS_3","kernel_data":"Code Civ. Proc., § 128, subd. (a)(3)Code Civ. Proc., § 128, subd. (a)(3)Code Civ. Proc., § 128, subd. (a)(3)Full.StateStatuteCitecite__AfterStatutoryCite__AfterStatutoryCite._PatternAfterStatutoryCite.AfterStatutoryCite__AfterStatutoryCite.StatutoryCodeEditionCite()__AfterStatutoryCite.StatutoryCodeEditionCite.((__AfterStatutoryCite.StatutoryCodeEditionCite.))__AfterStatutoryCite.StatutoryCodeEditionCite._PatternStatutoryCodeEditionCite.StatutoryCodeEditionCite__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition._PatternStatutoryCodeEdition.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.PublisherDeering __AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year._PatternYear.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year.YearJURISDICTIONYESPUBLISHERDeeringStateStatuteCode Civ. Proc., §128, subd. (a)(3)StateStatute.,,StateStatute.__SectionOrSections §128, subd. (a)(3)StateStatute.__SectionOrSections.,,StateStatute.__SectionOrSections._PatternX1.X1StateStatute.__SectionOrSections.RequiredSectionSymbol §StateStatute.__SectionOrSections.RequiredSectionSymbol._PatternRequiredSectionSymbol.RequiredSectionSymbolStateStatute.__SectionOrSections.RequiredSectionSymbol.SectionSymbol§StateStatute.__SectionOrSections.Subdsubd. (a)(3)StateStatute.__SectionOrSections.Subd._PatternSubdsList.SubdsListStateStatute.__SectionOrSections.Subd.First(a)(3)StateStatute.__SectionOrSections.Subd.First._PatternSubdScalarOrRangeCal.SubdScalarOrRangeCalStateStatute.__SectionOrSections.Subd.First.First(a)(3)StateStatute.__SectionOrSections.Subd.subdivisionssubdivisionStateStatute.__SectionOrSections.X1128StateStatute._PatternStateStatutes.StateStatutesStateStatute.CalCal.StateStatute.CaliforniaCodeSubjectCiv. Proc. CodeStateStatute.Sectionsectionmaster_name___RESULTS_3"},"IconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"Display":"Code Civ. Proc., § 128, subd. (a)(3)","CitationRichText":"Code Civ. Proc., § 128, subd. (a)(3)","IconShepardSignal":{"Id":-1,"Title":"No Analysis","IconType":0,"ImagePath":"/Content/Images/blank.jpg","Description":null},"ShepardSignalLink":null,"ShowShepardSignal":false,"ShowParentLink":false,"ParentCitation":null,"SuggestionsForCitation":[],"SuggestionsForCite":[],"SelectedSuggestion":null,"IsSuggestionEnabled":false,"UseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"UseSuggestionIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"OriginalUseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"CitationMarkupText":"Code Civ. Proc., § 128, subd. (a)(3)","ShortText":"Cal. Civ. Proc. Code §128","IsParentCorrect":true,"IsParentCorrectableConfirmed":false,"IsParentUnknownConfirmed":false,"IsParentCorrectable":false,"IsParentUnknown":false,"CitationOriginalText":"Code Civ. Proc., § 128, subd. (a)(3)","ModifiedCiteText":null,"MarkUp":null,"IsCheckCurrent":false,"PreviousCitationRetain":"Code Civ. Proc., § 128, subd. (a)(3)"},"CQ":"","TOA":"","html":"\r\n\r\n
\r\n
\r\n
\r\n\r\n\r\n\r\n\r\n\r\n\r\n
\r\n\r\n
Code Civ. Proc., § 128, subd. (a)(3)
\r\n\r\n
\r\n\r\n\r\n\r\n\r\n"}" docpart="A3289A6B26A34DABBB4D405B27CCB3B9">
Code Civ. Proc., § 128, subd. (a)(3)Code Civ. Proc., § 128, subd. (a)(3)Code Civ. Proc., § 128, subd. (a)(3)Full.StateStatuteCitecite__AfterStatutoryCite__AfterStatutoryCite._PatternAfterStatutoryCite.AfterStatutoryCite__AfterStatutoryCite.StatutoryCodeEditionCite()__AfterStatutoryCite.StatutoryCodeEditionCite.((__AfterStatutoryCite.StatutoryCodeEditionCite.))__AfterStatutoryCite.StatutoryCodeEditionCite._PatternStatutoryCodeEditionCite.StatutoryCodeEditionCite__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition._PatternStatutoryCodeEdition.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.PublisherDeering __AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year._PatternYear.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year.YearJURISDICTIONYESPUBLISHERDeeringStateStatuteCode Civ. Proc., §128, subd. (a)(3)StateStatute.,,StateStatute.__SectionOrSections §128, subd. (a)(3)StateStatute.__SectionOrSections.,,StateStatute.__SectionOrSections._PatternX1.X1StateStatute.__SectionOrSections.RequiredSectionSymbol §StateStatute.__SectionOrSections.RequiredSectionSymbol._PatternRequiredSectionSymbol.RequiredSectionSymbolStateStatute.__SectionOrSections.RequiredSectionSymbol.SectionSymbol§StateStatute.__SectionOrSections.Subdsubd. (a)(3)StateStatute.__SectionOrSections.Subd._PatternSubdsList.SubdsListStateStatute.__SectionOrSections.Subd.First(a)(3)StateStatute.__SectionOrSections.Subd.First._PatternSubdScalarOrRangeCal.SubdScalarOrRangeCalStateStatute.__SectionOrSections.Subd.First.First(a)(3)StateStatute.__SectionOrSections.Subd.subdivisionssubdivisionStateStatute.__SectionOrSections.X1128StateStatute._PatternStateStatutes.StateStatutesStateStatute.CalCal.StateStatute.CaliforniaCodeSubjectCiv. Proc. CodeStateStatute.Sectionsectionmaster_name___RESULTS_3","Markup":"Code Civ. Proc., § 128, subd. (a)(3)","Master":"___RESULTS_3","name":"CITRUS_BOOKMARK3","Original_string":"Code Civ. Proc., § 128, subd. (a)(3)","Page":null,"Parallel":"","Pattern":"Full.StateStatuteCite","PinPage":"","ReadOrderIndex":3934,"Refers_To":null,"ShortText":"Cal. Civ. Proc. Code §128","Start":3934,"Story":"wdMainTextStory"},"TOA":"","html":"\r\n\r\n\r\n
\r\n
\r\n\r\n\r\n\r\n\r\n\r\n\r\n
\r\n\r\n
Code\r\nCiv. Proc., § 128, subd. (a)(3)
\r\n\r\n
\r\n\r\n\r\n\r\n\r\n"}" docpart="A3289A6B26A34DABBB4D405B27CCB3B9">
Code Civ. Proc., § 128, subd. (a)(3).)
“The case management tools available to trial courts[]
includ[e] Correct quotation (No suggestions)","CitationText":"Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758","ModifiedCitationText":"Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":[],"IconIndicator":8,"UseCurrentIconIndicator":8,"UseCurrentMarkQuoteIconIndicator":0,"UseSuggestionIconIndicator":8,"IsEnabled":false,"IsUserConfirmed":false,"SuggestionCount":0,"IsManagedCite":true,"PinpointPageText":"Reassign pinpoint page","IsViewPinpointPage":false,"IsCorrect":true,"ShowPinPointPage":false,"SuggestionVisibility":false,"SuggestedDocUri":"the%20inherent%20authority%20to%20stay%20an%20action%20when%20appropriate."}}}' docpart="A3289A6B26A34DABBB4D405B27CCB3B9">the inherent authority to stay an action when appropriate.”
(\r\n
\r\n
Full.CaseCitation\r\n
18 Cal. 4th 739\r\n","ParentCiteID":null,"Processed":true,"Citation":{"current_string":"Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758","original_string":"Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758","error":null,"fullText":"Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758","refers_to_cite":null,"shortText":"18 Cal. 4th 739","isParallel":false,"parallel":"","start":4097,"end":4181,"pattern":"Full.CaseCitation","readOrderIndex":4097,"index":317,"citeType":1,"CiteShepSignal":2,"CiteShepSignalLink":"https://advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:7XWN-84F1-2NSD-R0NM-00000-00","story":"wdMainTextStory","PinPage":"758","name":"CITRUS_BOOKMARK4","foundBy":"","FullTextParen":null,"ParentheticalType":null,"IntermediateCite":false,"TOAHeading":null,"ts":{"$ref":"9"},"master":"___RESULTS_4","kernel_data":"
Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758Full.CaseCitationciteCaseNameXYZZY v. KamalaCaseName.FirstPartyJordache Enterprises, Inc.CaseName.FirstParty._PatternParty.PartyCaseName.FirstParty.PartyJordache Enterprises, Inc.CaseName.SecondPartyBrobeck, Phleger & HarrisonCaseName.SecondParty._PatternParty.PartyCaseName.SecondParty.PartyBrobeck, Phleger & HarrisonCaseName.vv.CourtParenthetical (1998) CourtParenthetical._PatternCourtParenthetical.CourtParentheticalCourtParenthetical.Date1998 CourtParenthetical.Date._PatternCourtParenthetical.Date.DateCourtParenthetical.Date.Year1998CourtParenthetical.Date.Year._PatternCourtParenthetical.Date.Year.YearCourtParenthetical.Date.Year.Year1998CourtParenthetical.ForbiddenComma._PatternForbiddenComma.ForbiddenCommaCourtParenthetical.Switch ( [ L (CourtParenthetical.Switch ( [ L.((CourtParenthetical.Switch ( [ L._PatternSwitch ( [ L.Switch ( [ LCourtParenthetical.Switch ) ] R) CourtParenthetical.Switch ) ] R.))CourtParenthetical.Switch ) ] R._PatternSwitch ) ] R.Switch ) ] RFirstPartyJordache Enterprises, Inc. HAS_AUTHORITATIVE_DATAYESNY L Paren(NY R Paren)Reporter18 Cal.4th 739, 758Reporter.[[Reporter.]]Reporter.__PinPages758Reporter.__PinPages._PatternPinPages.PinPagesReporter.__PinPages.First758Reporter.__PinPages.First.__PageNumber758Reporter.__PinPages.First._PatternFirstPageInRange.FirstPageInRangeReporter._PatternReporter.ReporterReporter.FirstPage739Reporter.NameCal. 4thReporter.pagepageReporter.Reporter.pagepageReporter.RequiredComma, Reporter.RequiredComma._PatternRequiredComma.RequiredCommaReporter.RequiredComma.Comma,Reporter.Volume18RequiredComma, RequiredComma._PatternRequiredComma.RequiredCommaSecondPartyBrobeck, Phleger & Harrison suprasupra, supra.,, supra._PatternShortCaseSupra.ShortCaseSuprasupra.suprasupramaster_name___RESULTS_4"},"IconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"Display":"Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758","CitationRichText":"Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758","IconShepardSignal":{"Id":2,"Title":"Possible negative treatment - cases","IconType":0,"ImagePath":"/Content/Images/IconSignalPossibleNegative.gif","Description":null},"ShepardSignalLink":"https://advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:7XWN-84F1-2NSD-R0NM-00000-00","ShowShepardSignal":true,"ShowParentLink":false,"ParentCitation":null,"SuggestionsForCitation":[],"SuggestionsForCite":[],"SelectedSuggestion":null,"IsSuggestionEnabled":false,"UseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"UseSuggestionIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"OriginalUseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"CitationMarkupText":"Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758","ShortText":"18 Cal. 4th 739","IsParentCorrect":true,"IsParentCorrectableConfirmed":false,"IsParentUnknownConfirmed":false,"IsParentCorrectable":false,"IsParentUnknown":false,"CitationOriginalText":"Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758","ModifiedCiteText":null,"MarkUp":null,"IsCheckCurrent":false,"PreviousCitationRetain":"Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758"},"CQ":"","TOA":"","html":"\r\n\r\n\r\n
\r\n
\r\n\r\n\r\n\r\n\r\n\r\n\r\n
\r\n\r\n
Jordache Enterprises, Inc. v. Brobeck,\r\nPhleger & Harrison (1998) 18 Cal.4th 739, 758
\r\n\r\n
\r\n\r\n\r\n\r\n\r\n"}" docpart="A3289A6B26A34DABBB4D405B27CCB3B9">
Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758Full.CaseCitationciteCaseNameXYZZY v. KamalaCaseName.FirstPartyJordache Enterprises, Inc.CaseName.FirstParty._PatternParty.PartyCaseName.FirstParty.PartyJordache Enterprises, Inc.CaseName.SecondPartyBrobeck, Phleger & HarrisonCaseName.SecondParty._PatternParty.PartyCaseName.SecondParty.PartyBrobeck, Phleger & HarrisonCaseName.vv.CourtParenthetical (1998) CourtParenthetical._PatternCourtParenthetical.CourtParentheticalCourtParenthetical.Date1998 CourtParenthetical.Date._PatternCourtParenthetical.Date.DateCourtParenthetical.Date.Year1998CourtParenthetical.Date.Year._PatternCourtParenthetical.Date.Year.YearCourtParenthetical.Date.Year.Year1998CourtParenthetical.ForbiddenComma._PatternForbiddenComma.ForbiddenCommaCourtParenthetical.Switch ( [ L (CourtParenthetical.Switch ( [ L.((CourtParenthetical.Switch ( [ L._PatternSwitch ( [ L.Switch ( [ LCourtParenthetical.Switch ) ] R) CourtParenthetical.Switch ) ] R.))CourtParenthetical.Switch ) ] R._PatternSwitch ) ] R.Switch ) ] RFirstPartyJordache Enterprises, Inc. HAS_AUTHORITATIVE_DATAYESNY L Paren(NY R Paren)Reporter18 Cal.4th 739, 758Reporter.[[Reporter.]]Reporter.__PinPages758Reporter.__PinPages._PatternPinPages.PinPagesReporter.__PinPages.First758Reporter.__PinPages.First.__PageNumber758Reporter.__PinPages.First._PatternFirstPageInRange.FirstPageInRangeReporter._PatternReporter.ReporterReporter.FirstPage739Reporter.NameCal. 4thReporter.pagepageReporter.Reporter.pagepageReporter.RequiredComma, Reporter.RequiredComma._PatternRequiredComma.RequiredCommaReporter.RequiredComma.Comma,Reporter.Volume18RequiredComma, RequiredComma._PatternRequiredComma.RequiredCommaSecondPartyBrobeck, Phleger & Harrison suprasupra, supra.,, supra._PatternShortCaseSupra.ShortCaseSuprasupra.suprasupramaster_name___RESULTS_4","Markup":"Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758","Master":"___RESULTS_4","name":"CITRUS_BOOKMARK4","Original_string":"Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758","Page":null,"Parallel":"","Pattern":"Full.CaseCitation","PinPage":"758","ReadOrderIndex":4097,"Refers_To":null,"ShortText":"18 Cal. 4th 739","Start":4097,"Story":"wdMainTextStory"},"TOA":"","html":"\r\n\r\n\r\n
\r\n
\r\n\r\n\r\n\r\n\r\n\r\n\r\n
\r\n\r\n
Jordache\r\nEnterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 758
\r\n\r\n
\r\n\r\n\r\n\r\n\r\n"}" docpart="A3289A6B26A34DABBB4D405B27CCB3B9">
Jordache Enterprises, Inc. v. Brobeck, Phleger &
Harrison (1998) 18 Cal.4th 739, 758.)
Pursuant
to \r\n PsychStateSubjectCode\r\n Full.StateStatuteCite\r\n Cal. Civ. Proc. Code § 916\r\n","ParentCiteID":null,"Processed":true,"Citation":{"current_string":"Code of Civil Procedure section 916, subdivision (a)","original_string":"Code of Civil Procedure section 916, subdivision (a)","error":null,"fullText":"Code of Civil Procedure section 916, subdivision (a)","refers_to_cite":null,"shortText":"Cal. Civ. Proc. Code § 916","isParallel":false,"parallel":null,"start":4197,"end":4249,"pattern":"Full.StateStatuteCite","readOrderIndex":4197,"index":4197,"citeType":1,"CiteShepSignal":0,"CiteShepSignalLink":null,"story":"wdMainTextStory","PinPage":null,"name":"CITRUS_BOOKMARK5","foundBy":"PsychStateSubjectCode","FullTextParen":"Code of Civil Procedure section 916, subdivision (a)","ParentheticalType":null,"IntermediateCite":false,"TOAHeading":null,"ts":{"$id":"15","End":400,"Offset":4185,"Start":0,"nref":0,"nind":0,"story":"wdMainTextStory","namedRanges":[{"$id":"16","Name":"Psych_Cite_5","Range":{"$id":"17","ts":{"$ref":"15"},"_Start":12,"_End":64,"_Text":"Pursuant to Code of Civil Procedure section 916, subdivision (a), “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”\r"},"foundBy":null,"pattern":null,"tabName":null}],"Range":{"$id":"18","ts":{"$ref":"15"},"_Start":0,"_End":400,"_Text":"Pursuant to Code of Civil Procedure section 916, subdivision (a), “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”\r"}},"master":"___RESULTS_9","kernel_data":"Code of Civil Procedure section 916, subdivision (a)Code of Civil Procedure section 916, subdivision (a)Code of Civil Procedure section 916, subdivision (a)Full.StateStatuteCitecite__AfterStatutoryCite__AfterStatutoryCite._PatternAfterStatutoryCite.AfterStatutoryCite__AfterStatutoryCite.StatutoryCodeEditionCite()__AfterStatutoryCite.StatutoryCodeEditionCite.((__AfterStatutoryCite.StatutoryCodeEditionCite.))__AfterStatutoryCite.StatutoryCodeEditionCite._PatternStatutoryCodeEditionCite.StatutoryCodeEditionCite__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition._PatternStatutoryCodeEdition.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.PublisherDeering __AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year._PatternYear.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year.YearJURISDICTIONYESPUBLISHERDeeringStateStatuteCode of Civil Procedure section 916, subdivision (a)StateStatute.__SectionOrSections section 916, subdivision (a)StateStatute.__SectionOrSections.,,StateStatute.__SectionOrSections._PatternX1.X1StateStatute.__SectionOrSections.RequiredSectionSymbol section StateStatute.__SectionOrSections.RequiredSectionSymbol._PatternRequiredSectionSymbol.RequiredSectionSymbolStateStatute.__SectionOrSections.RequiredSectionSymbol.SectionSymbol§StateStatute.__SectionOrSections.Subdsubdivision (a)StateStatute.__SectionOrSections.Subd._PatternSubdsList.SubdsListStateStatute.__SectionOrSections.Subd.First(a)StateStatute.__SectionOrSections.Subd.First._PatternSubdScalarOrRangeCal.SubdScalarOrRangeCalStateStatute.__SectionOrSections.Subd.First.First(a)StateStatute.__SectionOrSections.Subd.subdivisionssubdivisionStateStatute.__SectionOrSections.X1916StateStatute._PatternStateStatutes.StateStatutesStateStatute.CalCal.StateStatute.CaliforniaCodeSubjectCiv. Proc. CodeStateStatute.Sectionsectionmaster_name___RESULTS_9"},"IconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"Display":"Code of Civil Procedure section 916, subdivision (a)","CitationRichText":"Code of Civil Procedure section 916, subdivision (a)","IconShepardSignal":{"Id":-1,"Title":"No Analysis","IconType":0,"ImagePath":"/Content/Images/blank.jpg","Description":null},"ShepardSignalLink":null,"ShowShepardSignal":false,"ShowParentLink":false,"ParentCitation":null,"SuggestionsForCitation":[],"SuggestionsForCite":[],"SelectedSuggestion":null,"IsSuggestionEnabled":false,"UseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"UseSuggestionIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"OriginalUseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"CitationMarkupText":"Code of Civil Procedure section 916, subdivision (a)","ShortText":"Cal. Civ. Proc. Code § 916","IsParentCorrect":true,"IsParentCorrectableConfirmed":false,"IsParentUnknownConfirmed":false,"IsParentCorrectable":false,"IsParentUnknown":false,"CitationOriginalText":"Code of Civil Procedure section 916, subdivision (a)","ModifiedCiteText":null,"MarkUp":null,"IsCheckCurrent":false,"PreviousCitationRetain":"Code of Civil Procedure section 916, subdivision (a)"},"CQ":"","TOA":"","html":"\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n
Code\r\nof Civil Procedure section 916, subdivision (a)
\r\n\r\n
\r\n\r\n\r\n\r\n\r\n"}" docpart="A3289A6B26A34DABBB4D405B27CCB3B9">Code of Civil Procedure section 916, subdivision (a)Code of Civil Procedure section 916, subdivision (a)Code of Civil Procedure section 916, subdivision (a)Full.StateStatuteCitecite__AfterStatutoryCite__AfterStatutoryCite._PatternAfterStatutoryCite.AfterStatutoryCite__AfterStatutoryCite.StatutoryCodeEditionCite()__AfterStatutoryCite.StatutoryCodeEditionCite.((__AfterStatutoryCite.StatutoryCodeEditionCite.))__AfterStatutoryCite.StatutoryCodeEditionCite._PatternStatutoryCodeEditionCite.StatutoryCodeEditionCite__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition._PatternStatutoryCodeEdition.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.PublisherDeering __AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year._PatternYear.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year.YearJURISDICTIONYESPUBLISHERDeeringStateStatuteCode of Civil Procedure section 916, subdivision (a)StateStatute.__SectionOrSections section 916, subdivision (a)StateStatute.__SectionOrSections.,,StateStatute.__SectionOrSections._PatternX1.X1StateStatute.__SectionOrSections.RequiredSectionSymbol section StateStatute.__SectionOrSections.RequiredSectionSymbol._PatternRequiredSectionSymbol.RequiredSectionSymbolStateStatute.__SectionOrSections.RequiredSectionSymbol.SectionSymbol§StateStatute.__SectionOrSections.Subdsubdivision (a)StateStatute.__SectionOrSections.Subd._PatternSubdsList.SubdsListStateStatute.__SectionOrSections.Subd.First(a)StateStatute.__SectionOrSections.Subd.First._PatternSubdScalarOrRangeCal.SubdScalarOrRangeCalStateStatute.__SectionOrSections.Subd.First.First(a)StateStatute.__SectionOrSections.Subd.subdivisionssubdivisionStateStatute.__SectionOrSections.X1916StateStatute._PatternStateStatutes.StateStatutesStateStatute.CalCal.StateStatute.CaliforniaCodeSubjectCiv. Proc. CodeStateStatute.Sectionsectionmaster_name___RESULTS_9","Markup":"Code of Civil Procedure section 916, subdivision (a)","Master":"___RESULTS_9","name":"CITRUS_BOOKMARK5","Original_string":"Code of Civil Procedure section 916, subdivision (a)","Page":null,"Parallel":"","Pattern":"Full.StateStatuteCite","PinPage":"","ReadOrderIndex":4197,"Refers_To":null,"ShortText":"Cal. Civ. Proc. Code section 916","Start":4197,"Story":"wdMainTextStory"},"TOA":"","html":"\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n
Code\r\nof Civil Procedure section 916, subdivision (a)
\r\n\r\n
\r\n\r\n\r\n\r\n\r\n"}" docpart="A3289A6B26A34DABBB4D405B27CCB3B9">Code of Civil
Procedure section 916, subdivision (a), “Correct quotation (No suggestions)","CitationText":"Code of Civil Procedure section 916, subdivision (a)","ModifiedCitationText":"Code of Civil Procedure section 916, subdivision (a)","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":[],"IconIndicator":8,"UseCurrentIconIndicator":8,"UseCurrentMarkQuoteIconIndicator":0,"UseSuggestionIconIndicator":8,"IsEnabled":false,"IsUserConfirmed":false,"SuggestionCount":0,"IsManagedCite":true,"PinpointPageText":"Reassign pinpoint page","IsViewPinpointPage":false,"IsCorrect":true,"ShowPinPointPage":false,"SuggestionVisibility":false,"SuggestedDocUri":"the%20perfecting%20of%20an%20appeal%20stays%20proceedings%20in%20the%20trial%20court%20upon%20the%20judgment%20or%20order%20appealed%20from%20or%20upon%20the%20matters%20embraced%20therein%20or%20affected%20thereby,%20including%20enforcement%20of%20the%20judgment%20or%20order,%20but%20the%20trial%20court%20may%20proceed%20upon%20any%20other%20matter%20embraced%20in%20the%20action%20and%20not%20affected%20by%20the%20judgment%20or%20order."}}}' docpart="A3289A6B26A34DABBB4D405B27CCB3B9">the perfecting of an appeal stays proceedings in the trial
court upon the judgment or order appealed from or upon the matters embraced
therein or affected thereby, including enforcement of the judgment or order,
but the trial court may proceed upon any other matter embraced in the action
and not affected by the judgment or order.”
Here, the question is whether Spencer and
BHK’s remaining causes of action in their Cross-Complaint are matters
“embraced” or “affected” by those asserted in the TAC. According to the
California Supreme Court, the ultimate determinant is “Correct quotation (No suggestions)","CitationText":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189","ModifiedCitationText":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":[],"IconIndicator":8,"UseCurrentIconIndicator":8,"UseCurrentMarkQuoteIconIndicator":0,"UseSuggestionIconIndicator":8,"IsEnabled":false,"IsUserConfirmed":false,"SuggestionCount":0,"IsManagedCite":true,"PinpointPageText":"Reassign pinpoint page","IsViewPinpointPage":false,"IsCorrect":true,"ShowPinPointPage":false,"SuggestionVisibility":false,"SuggestedDocUri":"whether%20postjudgment%20[or%20postorder]%20proceedings%20on%20the%20matter%20would%20have%20any%20effect%20on%20the%20%e2%80%98effectiveness%e2%80%99%20of%20the%20appeal."}}}' docpart="A3289A6B26A34DABBB4D405B27CCB3B9">whether postjudgment [or postorder] proceedings on the matter
would have any effect on the ‘effectiveness’ of the appeal.” (\r\n PsychCase\r\n Full.CaseCitation\r\n 35 Cal. 4th 180\r\n","ParentCiteID":null,"Processed":true,"Citation":{"current_string":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189","original_string":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189","error":null,"fullText":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189","refers_to_cite":null,"shortText":"35 Cal. 4th 180","isParallel":false,"parallel":"","start":4948,"end":5014,"pattern":"Full.CaseCitation","readOrderIndex":4995,"index":4948,"citeType":1,"CiteShepSignal":2,"CiteShepSignalLink":"https://advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:7XWN-03B1-2NSF-C0T8-00000-00","story":"wdMainTextStory","PinPage":"189","name":"CITRUS_BOOKMARK7","foundBy":"PsychCase","FullTextParen":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180","ParentheticalType":null,"IntermediateCite":false,"TOAHeading":null,"ts":{"$id":"19","End":992,"Offset":4585,"Start":0,"nref":0,"nind":0,"story":"wdMainTextStory","namedRanges":[{"$id":"20","Name":"Psych_Cite_6","Range":{"$id":"21","ts":{"$ref":"19"},"_Start":970,"_End":988,"_Text":"Here, the question is whether Spencer and BHK’s remaining causes of action in their Cross-Complaint are matters “embraced” or “affected” by those asserted in the TAC. According to the California Supreme Court, the ultimate determinant is “whether postjudgment [or postorder] proceedings on the matter would have any effect on the ‘effectiveness’ of the appeal.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.) Circumstances that affect the “effectiveness” of an appeal include (1) a trial court proceeding that “directly or indirectly seek[s] to ‘enforce, vacate or modify [the] appealed judgment or order,” (2) a proceeding that “substantially interfere[s] with the appellate court’s ability to conduct the appeal,” (3) a situation where “the possible outcomes on appeal and the actual or possible results of the proceeding are irreconcilable,” and (4) a situation where “the very purpose of the appeal is to avoid the need for that proceeding.” (Id. at pp. 189-190.) \r"},"foundBy":null,"pattern":null,"tabName":null},{"$id":"22","Name":"Psych_Cite_7","Range":{"$id":"23","ts":{"$ref":"19"},"_Start":363,"_End":429,"_Text":"Here, the question is whether Spencer and BHK’s remaining causes of action in their Cross-Complaint are matters “embraced” or “affected” by those asserted in the TAC. According to the California Supreme Court, the ultimate determinant is “whether postjudgment [or postorder] proceedings on the matter would have any effect on the ‘effectiveness’ of the appeal.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.) Circumstances that affect the “effectiveness” of an appeal include (1) a trial court proceeding that “directly or indirectly seek[s] to ‘enforce, vacate or modify [the] appealed judgment or order,” (2) a proceeding that “substantially interfere[s] with the appellate court’s ability to conduct the appeal,” (3) a situation where “the possible outcomes on appeal and the actual or possible results of the proceeding are irreconcilable,” and (4) a situation where “the very purpose of the appeal is to avoid the need for that proceeding.” (Id. at pp. 189-190.) \r"},"foundBy":null,"pattern":null,"tabName":null}],"Range":{"$id":"24","ts":{"$ref":"19"},"_Start":0,"_End":992,"_Text":"Here, the question is whether Spencer and BHK’s remaining causes of action in their Cross-Complaint are matters “embraced” or “affected” by those asserted in the TAC. According to the California Supreme Court, the ultimate determinant is “whether postjudgment [or postorder] proceedings on the matter would have any effect on the ‘effectiveness’ of the appeal.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.) Circumstances that affect the “effectiveness” of an appeal include (1) a trial court proceeding that “directly or indirectly seek[s] to ‘enforce, vacate or modify [the] appealed judgment or order,” (2) a proceeding that “substantially interfere[s] with the appellate court’s ability to conduct the appeal,” (3) a situation where “the possible outcomes on appeal and the actual or possible results of the proceeding are irreconcilable,” and (4) a situation where “the very purpose of the appeal is to avoid the need for that proceeding.” (Id. at pp. 189-190.) \r"}},"master":"___RESULTS_10","kernel_data":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189Full.CaseCitationciteCaseNameXYZZY v. KamalaCaseName.FirstPartyVarian Medical Systems, Inc.CaseName.FirstParty._PatternParty.PartyCaseName.FirstParty.PartyVarian Medical Systems, Inc.CaseName.SecondPartyDelfinoCaseName.SecondParty._PatternParty.PartyCaseName.SecondParty.PartyDelfinoCaseName.vv.CourtParenthetical (2005) CourtParenthetical._PatternCourtParenthetical.CourtParentheticalCourtParenthetical.Date2005 CourtParenthetical.Date._PatternCourtParenthetical.Date.DateCourtParenthetical.Date.Year2005CourtParenthetical.Date.Year._PatternCourtParenthetical.Date.Year.YearCourtParenthetical.Date.Year.Year2005CourtParenthetical.ForbiddenComma._PatternForbiddenComma.ForbiddenCommaCourtParenthetical.Switch ( [ L (CourtParenthetical.Switch ( [ L.((CourtParenthetical.Switch ( [ L._PatternSwitch ( [ L.Switch ( [ LCourtParenthetical.Switch ) ] R) CourtParenthetical.Switch ) ] R.))CourtParenthetical.Switch ) ] R._PatternSwitch ) ] R.Switch ) ] RFirstPartyVarian Medical Systems, Inc. HAS_AUTHORITATIVE_DATAYESNY L Paren(NY R Paren)Reporter35 Cal.4th 180, 189Reporter.[[Reporter.]]Reporter.__PinPages189Reporter.__PinPages._PatternPinPages.PinPagesReporter.__PinPages.First189Reporter.__PinPages.First.__PageNumber189Reporter.__PinPages.First._PatternFirstPageInRange.FirstPageInRangeReporter._PatternReporter.ReporterReporter.FirstPage180Reporter.NameCal. 4thReporter.pagepageReporter.Reporter.pagepageReporter.RequiredComma, Reporter.RequiredComma._PatternRequiredComma.RequiredCommaReporter.RequiredComma.Comma,Reporter.Volume35RequiredComma, RequiredComma._PatternRequiredComma.RequiredCommaSecondPartyDelfino suprasupra, supra.,, supra._PatternShortCaseSupra.ShortCaseSuprasupra.suprasupramaster_name___RESULTS_10"},"IconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"Display":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189","CitationRichText":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189","IconShepardSignal":{"Id":2,"Title":"Possible negative treatment - cases","IconType":0,"ImagePath":"/Content/Images/IconSignalPossibleNegative.gif","Description":null},"ShepardSignalLink":"https://advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:7XWN-03B1-2NSF-C0T8-00000-00","ShowShepardSignal":true,"ShowParentLink":false,"ParentCitation":null,"SuggestionsForCitation":[],"SuggestionsForCite":[],"SelectedSuggestion":null,"IsSuggestionEnabled":false,"UseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"UseSuggestionIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"OriginalUseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"CitationMarkupText":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189","ShortText":"35 Cal. 4th 180","IsParentCorrect":true,"IsParentCorrectableConfirmed":false,"IsParentUnknownConfirmed":false,"IsParentCorrectable":false,"IsParentUnknown":false,"CitationOriginalText":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189","ModifiedCiteText":null,"MarkUp":null,"IsCheckCurrent":false,"PreviousCitationRetain":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189"},"CQ":"","TOA":"","html":"\r\n\r\n
\r\n
\r\n
\r\n\r\n\r\n\r\n\r\n\r\n\r\n
\r\n\r\n
Varian\r\nMedical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189
\r\n\r\n
\r\n\r\n\r\n\r\n\r\n"}" docpart="A3289A6B26A34DABBB4D405B27CCB3B9">
Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189Full.CaseCitationciteCaseNameXYZZY v. KamalaCaseName.FirstPartyVarian Medical Systems, Inc.CaseName.FirstParty._PatternParty.PartyCaseName.FirstParty.PartyVarian Medical Systems, Inc.CaseName.SecondPartyDelfinoCaseName.SecondParty._PatternParty.PartyCaseName.SecondParty.PartyDelfinoCaseName.vv.CourtParenthetical (2005) CourtParenthetical._PatternCourtParenthetical.CourtParentheticalCourtParenthetical.Date2005 CourtParenthetical.Date._PatternCourtParenthetical.Date.DateCourtParenthetical.Date.Year2005CourtParenthetical.Date.Year._PatternCourtParenthetical.Date.Year.YearCourtParenthetical.Date.Year.Year2005CourtParenthetical.ForbiddenComma._PatternForbiddenComma.ForbiddenCommaCourtParenthetical.Switch ( [ L (CourtParenthetical.Switch ( [ L.((CourtParenthetical.Switch ( [ L._PatternSwitch ( [ L.Switch ( [ LCourtParenthetical.Switch ) ] R) CourtParenthetical.Switch ) ] R.))CourtParenthetical.Switch ) ] R._PatternSwitch ) ] R.Switch ) ] RFirstPartyVarian Medical Systems, Inc. HAS_AUTHORITATIVE_DATAYESNY L Paren(NY R Paren)Reporter35 Cal.4th 180, 189Reporter.[[Reporter.]]Reporter.__PinPages189Reporter.__PinPages._PatternPinPages.PinPagesReporter.__PinPages.First189Reporter.__PinPages.First.__PageNumber189Reporter.__PinPages.First._PatternFirstPageInRange.FirstPageInRangeReporter._PatternReporter.ReporterReporter.FirstPage180Reporter.NameCal. 4thReporter.pagepageReporter.Reporter.pagepageReporter.RequiredComma, Reporter.RequiredComma._PatternRequiredComma.RequiredCommaReporter.RequiredComma.Comma,Reporter.Volume35RequiredComma, RequiredComma._PatternRequiredComma.RequiredCommaSecondPartyDelfino suprasupra, supra.,, supra._PatternShortCaseSupra.ShortCaseSuprasupra.suprasupramaster_name___RESULTS_10","Markup":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189","Master":"___RESULTS_10","name":"CITRUS_BOOKMARK7","Original_string":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189","Page":null,"Parallel":"","Pattern":"Full.CaseCitation","PinPage":"189","ReadOrderIndex":4948,"Refers_To":null,"ShortText":"35 Cal. 4th 180","Start":4948,"Story":"wdMainTextStory"},"TOA":"","html":"\r\n\r\n\r\n
\r\n
\r\n\r\n\r\n\r\n\r\n\r\n\r\n
\r\n\r\n
Varian\r\nMedical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189
\r\n\r\n
\r\n\r\n\r\n\r\n\r\n"}" docpart="A3289A6B26A34DABBB4D405B27CCB3B9">
Varian Medical
Systems, Inc. v. Delfino (2005)
35 Cal.4th 180, 189.) Circumstances that affect the
“effectiveness” of an appeal include (1) a trial court proceeding that “Correct quotation (No suggestions)","CitationText":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189","ModifiedCitationText":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":[],"IconIndicator":8,"UseCurrentIconIndicator":8,"UseCurrentMarkQuoteIconIndicator":0,"UseSuggestionIconIndicator":8,"IsEnabled":false,"IsUserConfirmed":false,"SuggestionCount":0,"IsManagedCite":true,"PinpointPageText":"Reassign pinpoint page","IsViewPinpointPage":false,"IsCorrect":true,"ShowPinPointPage":false,"SuggestionVisibility":false,"SuggestedDocUri":"directly%20or%20indirectly%20seek[s]%20to%20%e2%80%98enforce,%20vacate%20or%20modify%20[the]%20appealed%20judgment%20or%20order,"}}}' docpart="A3289A6B26A34DABBB4D405B27CCB3B9">directly or indirectly seek[s] to ‘enforce, vacate or modify
[the] appealed judgment or order,” (2) a proceeding that “Correct quotation (No suggestions)","CitationText":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189","ModifiedCitationText":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":["Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 190"],"IconIndicator":9,"UseCurrentIconIndicator":9,"UseCurrentMarkQuoteIconIndicator":9,"UseSuggestionIconIndicator":9,"IsEnabled":false,"IsUserConfirmed":false,"SuggestionCount":1,"IsManagedCite":true,"PinpointPageText":"Reassign pinpoint page","IsViewPinpointPage":false,"IsCorrect":false,"ShowPinPointPage":true,"SuggestionVisibility":false,"SuggestedDocUri":"substantially%20interfere[s]%20with%20the%20appellate%20court%e2%80%99s%20ability%20to%20conduct%20the%20appeal,"}}}" docpart="A3289A6B26A34DABBB4D405B27CCB3B9">substantially interfere[s] with the appellate court’s ability
to conduct the appeal,” (3) a situation where “Correct quotation (No suggestions)","CitationText":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189","ModifiedCitationText":"Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":["Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 190"],"IconIndicator":9,"UseCurrentIconIndicator":9,"UseCurrentMarkQuoteIconIndicator":9,"UseSuggestionIconIndicator":9,"IsEnabled":false,"IsUserConfirmed":false,"SuggestionCount":1,"IsManagedCite":true,"PinpointPageText":"Reassign pinpoint page","IsViewPinpointPage":false,"IsCorrect":false,"ShowPinPointPage":true,"SuggestionVisibility":false,"SuggestedDocUri":"the%20possible%20outcomes%20on%20appeal%20and%20the%20actual%20or%20possible%20results%20of%20the%20proceeding%20are%20irreconcilable,"}}}' docpart="A3289A6B26A34DABBB4D405B27CCB3B9">the possible outcomes on appeal and the actual or possible
results of the proceeding are irreconcilable,” and (4) a situation
where “Correct quotation (No suggestions)","CitationText":"Id. at pp. 189-190","ModifiedCitationText":"Id. at pp. 189-190","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":[],"IconIndicator":8,"UseCurrentIconIndicator":8,"UseCurrentMarkQuoteIconIndicator":0,"UseSuggestionIconIndicator":8,"IsEnabled":false,"IsUserConfirmed":false,"SuggestionCount":0,"IsManagedCite":true,"PinpointPageText":"Reassign pinpoint page","IsViewPinpointPage":false,"IsCorrect":true,"ShowPinPointPage":false,"SuggestionVisibility":false,"SuggestedDocUri":"the%20very%20purpose%20of%20the%20appeal%20is%20to%20avoid%20the%20need%20for%20that%20proceeding."}}}' docpart="A3289A6B26A34DABBB4D405B27CCB3B9">the very purpose of the appeal is to avoid the need for that
proceeding.” (\r\n
PsychId\r\n
Id\r\n
35 Cal. 4th 180\r\n","ParentCiteID":"CITRUS_BOOKMARK7","Processed":true,"Citation":{"current_string":"Id. at pp. 189-190","original_string":"Id. at pp. 189-190","error":null,"fullText":"Id. at pp. 189-190","refers_to_cite":null,"shortText":"35 Cal. 4th 180","isParallel":false,"parallel":null,"start":5555,"end":5573,"pattern":"Id","readOrderIndex":5554,"index":5555,"citeType":1,"CiteShepSignal":2,"CiteShepSignalLink":"https://advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:7XWN-03B1-2NSF-C0T8-00000-00","story":"wdMainTextStory","PinPage":"189","name":"CITRUS_BOOKMARK6","foundBy":"PsychId","FullTextParen":"Id. at pp. 189-190","ParentheticalType":null,"IntermediateCite":false,"TOAHeading":null,"ts":{"$ref":"19"},"master":"___RESULTS_10","kernel_data":"
Id. at pp. 189-190Id. at pp. 189-190Id. at pp. 189-190Id.CaseIdciteCaseNameXYZZY v. KamalaCaseName.FirstPartyVarian Medical Systems, Inc.CaseName.FirstParty._PatternParty.PartyCaseName.FirstParty.PartyVarian Medical Systems, Inc.CaseName.SecondPartyDelfinoCaseName.SecondParty._PatternParty.PartyCaseName.SecondParty.PartyDelfinoCaseName.vv.CourtParenthetical (2005) CourtParenthetical._PatternCourtParenthetical.CourtParentheticalCourtParenthetical.Date2005 CourtParenthetical.Date._PatternCourtParenthetical.Date.DateCourtParenthetical.Date.Year2005CourtParenthetical.Date.Year._PatternCourtParenthetical.Date.Year.YearCourtParenthetical.Date.Year.Year2005CourtParenthetical.ForbiddenComma._PatternForbiddenComma.ForbiddenCommaCourtParenthetical.Switch ( [ L (CourtParenthetical.Switch ( [ L.((CourtParenthetical.Switch ( [ L._PatternSwitch ( [ L.Switch ( [ LCourtParenthetical.Switch ) ] R) CourtParenthetical.Switch ) ] R.))CourtParenthetical.Switch ) ] R._PatternSwitch ) ] R.Switch ) ] RFirstPartyVarian Medical Systems, Inc. HAS_AUTHORITATIVE_DATAYESIdIbid.Id._PatternIbidGraph.IbidGraphId.ForbiddenComma._PatternForbiddenComma.ForbiddenCommaId.IdIbid.master_name___RESULTS_10NY L Paren(NY R Paren)pagepagesReporterat pp. 189-190 Reporter.[[Reporter.]]Reporter.__PinPages189-190 Reporter.__PinPages._PatternPinPagesFirst.PinPagesFirstReporter.__PinPages.First189Reporter.__PinPages.First.__PageNumber189Reporter.__PinPages.First._PatternFirstPageInRangeSupp.FirstPageInRangeSuppReporter.__PinPages.Last190 Reporter.__PinPages.Last._PatternLastPageNumber.LastPageNumberReporter.__PinPages.Last.PageNumber90Reporter.__PinPages.Last.PageNumber_Full190Reporter.__PinPages.RangeDash-Reporter._PatternIdAtReporter.IdAtReporterReporter.atatReporter.FirstPage180Reporter.NameCal. 4thReporter.pagepagesReporter.Reporter.pagepageReporter.RequiredComma, Reporter.RequiredComma._PatternRequiredComma.RequiredCommaReporter.RequiredComma.Comma,Reporter.Volume35RequiredComma, RequiredComma._PatternRequiredComma.RequiredCommaSecondPartyDelfino suprasupra, supra.,, supra._PatternShortCaseSupra.ShortCaseSuprasupra.suprasupra"},"IconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"Display":"Id. at pp. 189-190","CitationRichText":"
Id. at pp. 189-190","IconShepardSignal":{"Id":2,"Title":"Possible negative treatment - cases","IconType":0,"ImagePath":"/Content/Images/IconSignalPossibleNegative.gif","Description":null},"ShepardSignalLink":"https://advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:7XWN-03B1-2NSF-C0T8-00000-00","ShowShepardSignal":true,"ShowParentLink":true,"ParentCitation":null,"SuggestionsForCitation":[],"SuggestionsForCite":[],"SelectedSuggestion":null,"IsSuggestionEnabled":false,"UseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"UseSuggestionIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"OriginalUseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"CitationMarkupText":"
Id. at pp. 189-190","ShortText":"35 Cal. 4th 180","IsParentCorrect":true,"IsParentCorrectableConfirmed":false,"IsParentUnknownConfirmed":false,"IsParentCorrectable":false,"IsParentUnknown":false,"CitationOriginalText":"Id. at pp. 189-190","ModifiedCiteText":null,"MarkUp":null,"IsCheckCurrent":false,"PreviousCitationRetain":"Id. at pp. 189-190"},"CQ":"","TOA":"","html":"\r\n\r\n\r\n
\r\n
\r\n\r\n\r\n\r\n\r\n\r\n\r\n
\r\n\r\n
Id.\r\nat\r\npp. 189-190
\r\n\r\n
\r\n\r\n\r\n\r\n\r\n"}" docpart="A3289A6B26A34DABBB4D405B27CCB3B9">
Id. at pp. 189-190Id. at pp. 189-190Id. at pp. 189-190citeCaseNameXYZZY v. KamalaCaseName.FirstPartyVarian Medical Systems, Inc.CaseName.FirstParty._PatternParty.PartyCaseName.FirstParty.PartyVarian Medical Systems, Inc.CaseName.SecondPartyDelfinoCaseName.SecondParty._PatternParty.PartyCaseName.SecondParty.PartyDelfinoCaseName.vv.CourtParenthetical (2005) CourtParenthetical._PatternCourtParenthetical.CourtParentheticalCourtParenthetical.Date2005 CourtParenthetical.Date._PatternCourtParenthetical.Date.DateCourtParenthetical.Date.Year2005CourtParenthetical.Date.Year._PatternCourtParenthetical.Date.Year.YearCourtParenthetical.Date.Year.Year2005CourtParenthetical.ForbiddenComma._PatternForbiddenComma.ForbiddenCommaCourtParenthetical.Switch ( [ L (CourtParenthetical.Switch ( [ L.((CourtParenthetical.Switch ( [ L._PatternSwitch ( [ L.Switch ( [ LCourtParenthetical.Switch ) ] R) CourtParenthetical.Switch ) ] R.))CourtParenthetical.Switch ) ] R._PatternSwitch ) ] R.Switch ) ] RFirstPartyVarian Medical Systems, Inc. HAS_AUTHORITATIVE_DATAYESIdIbid.Id._PatternIbidGraph.IbidGraphId.ForbiddenComma._PatternForbiddenComma.ForbiddenCommaId.IdIbid.master_name___RESULTS_10NY L Paren(NY R Paren)pagepagesReporterat pp. 189-190 Reporter.[[Reporter.]]Reporter.__PinPages189-190 Reporter.__PinPages._PatternPinPagesFirst.PinPagesFirstReporter.__PinPages.First189Reporter.__PinPages.First.__PageNumber189Reporter.__PinPages.First._PatternFirstPageInRangeSupp.FirstPageInRangeSuppReporter.__PinPages.Last190 Reporter.__PinPages.Last._PatternLastPageNumber.LastPageNumberReporter.__PinPages.Last.PageNumber90Reporter.__PinPages.Last.PageNumber_Full190Reporter.__PinPages.RangeDash-Reporter._PatternIdAtReporter.IdAtReporterReporter.atatReporter.FirstPage180Reporter.NameCal. 4thReporter.pagepagesReporter.Reporter.pagepageReporter.RequiredComma, Reporter.RequiredComma._PatternRequiredComma.RequiredCommaReporter.RequiredComma.Comma,Reporter.Volume35RequiredComma, RequiredComma._PatternRequiredComma.RequiredCommaSecondPartyDelfino suprasupra, supra.,, supra._PatternShortCaseSupra.ShortCaseSuprasupra.suprasupra","Markup":"Id. at pp. 189-190","Master":"___RESULTS_10","name":"CITRUS_BOOKMARK6","Original_string":"Id. at pp. 189-190","Page":null,"Parallel":"","Pattern":"Id.CaseId","PinPage":"189","ReadOrderIndex":5555,"Refers_To":null,"ShortText":"35 Cal. 4th 180","Start":5555,"Story":"wdMainTextStory"},"TOA":"","html":"\r\n\r\n\r\n
\r\n
\r\n\r\n\r\n\r\n\r\n\r\n\r\n
\r\n\r\n
Id.\r\nat\r\npp. 189-190
\r\n\r\n
\r\n\r\n\r\n\r\n\r\n"}" docpart="A3289A6B26A34DABBB4D405B27CCB3B9">
Id. at pp. 189-190.)
Aside
from \r\n PsychStateSubjectCode\r\n Full.StateStatuteCite\r\n Cal. Civ. Proc. Code § 916\r\n","ParentCiteID":null,"Processed":true,"Citation":{"current_string":"Code of Civil Procedure section 916","original_string":"Code of Civil Procedure section 916","error":null,"fullText":"Code of Civil Procedure section 916","refers_to_cite":null,"shortText":"Cal. Civ. Proc. Code § 916","isParallel":false,"parallel":null,"start":5588,"end":5623,"pattern":"Full.StateStatuteCite","readOrderIndex":5588,"index":5588,"citeType":1,"CiteShepSignal":0,"CiteShepSignalLink":null,"story":"wdMainTextStory","PinPage":null,"name":"CITRUS_BOOKMARK8","foundBy":"PsychStateSubjectCode","FullTextParen":"Code of Civil Procedure section 916","ParentheticalType":null,"IntermediateCite":false,"TOAHeading":null,"ts":{"$id":"25","End":4310,"Offset":5577,"Start":0,"nref":0,"nind":0,"story":"wdMainTextStory","namedRanges":[{"$id":"26","Name":"Psych_Cite_8","Range":{"$id":"27","ts":{"$ref":"25"},"_Start":11,"_End":46,"_Text":"Aside from Code of Civil Procedure section 916, the Court also has discretion to stay this entire case pending the outcome of the appeal. (See URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 883 [in the case of an appeal of a denial of a disqualification motion, which is not subject to an automatic stay, the appealing party may “seek relief from the trial court or appellate court to stay proceedings ‘to maintain the status quo pending the appeal’”]; see also Reed v. Superior Court (2001) 92 Cal.App.4th 448, 455 [“If the moving party desires that the trial be stayed pending appeal, the party may first ask the trial court in its discretion to continue or stay the underlying proceedings until the appeal is decided.”].) \rThe Moving Parties contend that there is substantial overlap in the facts and legal theories underlying Kitson’s claims against Spencer and Spencer’s cross-claims against Kitson. Plaintiffs allege that the Lender Defendants induced Ross into loaning Kitson $2 million of his personal funds and then tricked him into entering into an agreement which waived his right to be repaid on that loan. Plaintiffs then allege that the Lender Defendants took operational control of Kitson and began a fraudulent scheme to “pump and dump” – stockpiling excess inventory weeks before shutting down the company, refusing to pay vendors, and then liquidating the inventory for profit. Spencer and BHK’s cross-claims are based on the allegation that Ross and Lee induced BHK into infusing capital (totaling $6.5 million) into Kitson without disclosing certain material facts that contributed to their mismanagement of the company. Spencer and BHK allege that Ross and Lee did not intend to use their loans for the benefit of Kitson but instead intended to benefit themselves personally. The Moving Parties argue that the common nucleus across these various claims are statements, representations, and conduct of the parties leading up to the credit arrangement between Spencer and Kitson. The Moving Parties contend that these facts will determine whether fraudulent statements were made, whether such fraudulent statements provide a defense to contract formation or enforcement, and other similar issues. Consequently, the Moving Parties argue that a trial on Spencer’s claim for breach of contract against Kitson will necessarily include the full extent of Kitson’s theories regarding Spencer’s alleged wrongdoing. Moreover, the Moving Parties argue that Kitson’s affirmative claims challenge the underlying credit transaction, which challenge will also form the basis of Kitson’s defense of Spencer’s fraud claim. Finally, the Moving Parties argue that there is a potential for irreconcilable outcomes if Spencer’s claims proceed to trial. In the event that Spencer loses at trial but the August 29 Order is affirmed, Spencer would be in a position to challenge the adverse verdict on the ground that Kitson never had standing to defend itself during the trial of Spencer’s cross-claims. \rSpencer and BHK counter that there can be no stay because there is no final judgment with regard to Spencer and BHK. But the pertinent question in determining whether to impose a stay based on the perfecting of an appeal is not whether there is a final judgment but whether the matters that remain are embraced or affected by the matters on appeal. The appeal has already been filed, so the issue of whether it was appropriate to enter judgment and to take up an appeal is not within this Court’s purview. Accordingly, the Court finds that, in light of the complex procedural posture of this case, and in light of Kitson’s appeal, it would be appropriate and prudent to issue a stay of the proceedings to maintain the status quo and to avoid potentially conflicting appellate outcomes. \rConclusion\r\tBased on the foregoing, the Court grants the Moving Parties’ motion for a stay of proceedings. \rThe Court orders that all proceedings in the instant action are stayed pending the outcome of Kitson’s appeal. \r\tThe Court sets a status conference re status of appeal for _______________, at _______, in Dept. 50. \rThe Court orders Plaintiffs to give notice of this ruling.\r\rDATED: July 23, 2020 \t\t\t_______________________________\rHon. Teresa A. Beaudet\rJudge, Los Angeles Superior Court\r"},"foundBy":null,"pattern":null,"tabName":null},{"$id":"28","Name":"Psych_Cite_9","Range":{"$id":"29","ts":{"$ref":"25"},"_Start":139,"_End":473,"_Text":"Aside from Code of Civil Procedure section 916, the Court also has discretion to stay this entire case pending the outcome of the appeal. (See URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 883 [in the case of an appeal of a denial of a disqualification motion, which is not subject to an automatic stay, the appealing party may “seek relief from the trial court or appellate court to stay proceedings ‘to maintain the status quo pending the appeal’”]; see also Reed v. Superior Court (2001) 92 Cal.App.4th 448, 455 [“If the moving party desires that the trial be stayed pending appeal, the party may first ask the trial court in its discretion to continue or stay the underlying proceedings until the appeal is decided.”].) \rThe Moving Parties contend that there is substantial overlap in the facts and legal theories underlying Kitson’s claims against Spencer and Spencer’s cross-claims against Kitson. Plaintiffs allege that the Lender Defendants induced Ross into loaning Kitson $2 million of his personal funds and then tricked him into entering into an agreement which waived his right to be repaid on that loan. Plaintiffs then allege that the Lender Defendants took operational control of Kitson and began a fraudulent scheme to “pump and dump” – stockpiling excess inventory weeks before shutting down the company, refusing to pay vendors, and then liquidating the inventory for profit. Spencer and BHK’s cross-claims are based on the allegation that Ross and Lee induced BHK into infusing capital (totaling $6.5 million) into Kitson without disclosing certain material facts that contributed to their mismanagement of the company. Spencer and BHK allege that Ross and Lee did not intend to use their loans for the benefit of Kitson but instead intended to benefit themselves personally. The Moving Parties argue that the common nucleus across these various claims are statements, representations, and conduct of the parties leading up to the credit arrangement between Spencer and Kitson. The Moving Parties contend that these facts will determine whether fraudulent statements were made, whether such fraudulent statements provide a defense to contract formation or enforcement, and other similar issues. Consequently, the Moving Parties argue that a trial on Spencer’s claim for breach of contract against Kitson will necessarily include the full extent of Kitson’s theories regarding Spencer’s alleged wrongdoing. Moreover, the Moving Parties argue that Kitson’s affirmative claims challenge the underlying credit transaction, which challenge will also form the basis of Kitson’s defense of Spencer’s fraud claim. Finally, the Moving Parties argue that there is a potential for irreconcilable outcomes if Spencer’s claims proceed to trial. In the event that Spencer loses at trial but the August 29 Order is affirmed, Spencer would be in a position to challenge the adverse verdict on the ground that Kitson never had standing to defend itself during the trial of Spencer’s cross-claims. \rSpencer and BHK counter that there can be no stay because there is no final judgment with regard to Spencer and BHK. But the pertinent question in determining whether to impose a stay based on the perfecting of an appeal is not whether there is a final judgment but whether the matters that remain are embraced or affected by the matters on appeal. The appeal has already been filed, so the issue of whether it was appropriate to enter judgment and to take up an appeal is not within this Court’s purview. Accordingly, the Court finds that, in light of the complex procedural posture of this case, and in light of Kitson’s appeal, it would be appropriate and prudent to issue a stay of the proceedings to maintain the status quo and to avoid potentially conflicting appellate outcomes. \rConclusion\r\tBased on the foregoing, the Court grants the Moving Parties’ motion for a stay of proceedings. \rThe Court orders that all proceedings in the instant action are stayed pending the outcome of Kitson’s appeal. \r\tThe Court sets a status conference re status of appeal for _______________, at _______, in Dept. 50. \rThe Court orders Plaintiffs to give notice of this ruling.\r\rDATED: July 23, 2020 \t\t\t_______________________________\rHon. Teresa A. Beaudet\rJudge, Los Angeles Superior Court\r"},"foundBy":null,"pattern":null,"tabName":null},{"$id":"30","Name":"Psych_Cite_10","Range":{"$id":"31","ts":{"$ref":"25"},"_Start":475,"_End":744,"_Text":"Aside from Code of Civil Procedure section 916, the Court also has discretion to stay this entire case pending the outcome of the appeal. (See URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 883 [in the case of an appeal of a denial of a disqualification motion, which is not subject to an automatic stay, the appealing party may “seek relief from the trial court or appellate court to stay proceedings ‘to maintain the status quo pending the appeal’”]; see also Reed v. Superior Court (2001) 92 Cal.App.4th 448, 455 [“If the moving party desires that the trial be stayed pending appeal, the party may first ask the trial court in its discretion to continue or stay the underlying proceedings until the appeal is decided.”].) \rThe Moving Parties contend that there is substantial overlap in the facts and legal theories underlying Kitson’s claims against Spencer and Spencer’s cross-claims against Kitson. Plaintiffs allege that the Lender Defendants induced Ross into loaning Kitson $2 million of his personal funds and then tricked him into entering into an agreement which waived his right to be repaid on that loan. Plaintiffs then allege that the Lender Defendants took operational control of Kitson and began a fraudulent scheme to “pump and dump” – stockpiling excess inventory weeks before shutting down the company, refusing to pay vendors, and then liquidating the inventory for profit. Spencer and BHK’s cross-claims are based on the allegation that Ross and Lee induced BHK into infusing capital (totaling $6.5 million) into Kitson without disclosing certain material facts that contributed to their mismanagement of the company. Spencer and BHK allege that Ross and Lee did not intend to use their loans for the benefit of Kitson but instead intended to benefit themselves personally. The Moving Parties argue that the common nucleus across these various claims are statements, representations, and conduct of the parties leading up to the credit arrangement between Spencer and Kitson. The Moving Parties contend that these facts will determine whether fraudulent statements were made, whether such fraudulent statements provide a defense to contract formation or enforcement, and other similar issues. Consequently, the Moving Parties argue that a trial on Spencer’s claim for breach of contract against Kitson will necessarily include the full extent of Kitson’s theories regarding Spencer’s alleged wrongdoing. Moreover, the Moving Parties argue that Kitson’s affirmative claims challenge the underlying credit transaction, which challenge will also form the basis of Kitson’s defense of Spencer’s fraud claim. Finally, the Moving Parties argue that there is a potential for irreconcilable outcomes if Spencer’s claims proceed to trial. In the event that Spencer loses at trial but the August 29 Order is affirmed, Spencer would be in a position to challenge the adverse verdict on the ground that Kitson never had standing to defend itself during the trial of Spencer’s cross-claims. \rSpencer and BHK counter that there can be no stay because there is no final judgment with regard to Spencer and BHK. But the pertinent question in determining whether to impose a stay based on the perfecting of an appeal is not whether there is a final judgment but whether the matters that remain are embraced or affected by the matters on appeal. The appeal has already been filed, so the issue of whether it was appropriate to enter judgment and to take up an appeal is not within this Court’s purview. Accordingly, the Court finds that, in light of the complex procedural posture of this case, and in light of Kitson’s appeal, it would be appropriate and prudent to issue a stay of the proceedings to maintain the status quo and to avoid potentially conflicting appellate outcomes. \rConclusion\r\tBased on the foregoing, the Court grants the Moving Parties’ motion for a stay of proceedings. \rThe Court orders that all proceedings in the instant action are stayed pending the outcome of Kitson’s appeal. \r\tThe Court sets a status conference re status of appeal for _______________, at _______, in Dept. 50. \rThe Court orders Plaintiffs to give notice of this ruling.\r\rDATED: July 23, 2020 \t\t\t_______________________________\rHon. Teresa A. Beaudet\rJudge, Los Angeles Superior Court\r"},"foundBy":null,"pattern":null,"tabName":null}],"Range":{"$id":"32","ts":{"$ref":"25"},"_Start":0,"_End":4310,"_Text":"Aside from Code of Civil Procedure section 916, the Court also has discretion to stay this entire case pending the outcome of the appeal. (See URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 883 [in the case of an appeal of a denial of a disqualification motion, which is not subject to an automatic stay, the appealing party may “seek relief from the trial court or appellate court to stay proceedings ‘to maintain the status quo pending the appeal’”]; see also Reed v. Superior Court (2001) 92 Cal.App.4th 448, 455 [“If the moving party desires that the trial be stayed pending appeal, the party may first ask the trial court in its discretion to continue or stay the underlying proceedings until the appeal is decided.”].) \rThe Moving Parties contend that there is substantial overlap in the facts and legal theories underlying Kitson’s claims against Spencer and Spencer’s cross-claims against Kitson. Plaintiffs allege that the Lender Defendants induced Ross into loaning Kitson $2 million of his personal funds and then tricked him into entering into an agreement which waived his right to be repaid on that loan. Plaintiffs then allege that the Lender Defendants took operational control of Kitson and began a fraudulent scheme to “pump and dump” – stockpiling excess inventory weeks before shutting down the company, refusing to pay vendors, and then liquidating the inventory for profit. Spencer and BHK’s cross-claims are based on the allegation that Ross and Lee induced BHK into infusing capital (totaling $6.5 million) into Kitson without disclosing certain material facts that contributed to their mismanagement of the company. Spencer and BHK allege that Ross and Lee did not intend to use their loans for the benefit of Kitson but instead intended to benefit themselves personally. The Moving Parties argue that the common nucleus across these various claims are statements, representations, and conduct of the parties leading up to the credit arrangement between Spencer and Kitson. The Moving Parties contend that these facts will determine whether fraudulent statements were made, whether such fraudulent statements provide a defense to contract formation or enforcement, and other similar issues. Consequently, the Moving Parties argue that a trial on Spencer’s claim for breach of contract against Kitson will necessarily include the full extent of Kitson’s theories regarding Spencer’s alleged wrongdoing. Moreover, the Moving Parties argue that Kitson’s affirmative claims challenge the underlying credit transaction, which challenge will also form the basis of Kitson’s defense of Spencer’s fraud claim. Finally, the Moving Parties argue that there is a potential for irreconcilable outcomes if Spencer’s claims proceed to trial. In the event that Spencer loses at trial but the August 29 Order is affirmed, Spencer would be in a position to challenge the adverse verdict on the ground that Kitson never had standing to defend itself during the trial of Spencer’s cross-claims. \rSpencer and BHK counter that there can be no stay because there is no final judgment with regard to Spencer and BHK. But the pertinent question in determining whether to impose a stay based on the perfecting of an appeal is not whether there is a final judgment but whether the matters that remain are embraced or affected by the matters on appeal. The appeal has already been filed, so the issue of whether it was appropriate to enter judgment and to take up an appeal is not within this Court’s purview. Accordingly, the Court finds that, in light of the complex procedural posture of this case, and in light of Kitson’s appeal, it would be appropriate and prudent to issue a stay of the proceedings to maintain the status quo and to avoid potentially conflicting appellate outcomes. \rConclusion\r\tBased on the foregoing, the Court grants the Moving Parties’ motion for a stay of proceedings. \rThe Court orders that all proceedings in the instant action are stayed pending the outcome of Kitson’s appeal. \r\tThe Court sets a status conference re status of appeal for _______________, at _______, in Dept. 50. \rThe Court orders Plaintiffs to give notice of this ruling.\r\rDATED: July 23, 2020 \t\t\t_______________________________\rHon. Teresa A. Beaudet\rJudge, Los Angeles Superior Court\r"}},"master":"___RESULTS_12","kernel_data":"Code of Civil Procedure section 916Code of Civil Procedure section 916Code of Civil Procedure section 916Full.StateStatuteCitecite__AfterStatutoryCite__AfterStatutoryCite._PatternAfterStatutoryCite.AfterStatutoryCite__AfterStatutoryCite.StatutoryCodeEditionCite()__AfterStatutoryCite.StatutoryCodeEditionCite.((__AfterStatutoryCite.StatutoryCodeEditionCite.))__AfterStatutoryCite.StatutoryCodeEditionCite._PatternStatutoryCodeEditionCite.StatutoryCodeEditionCite__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition._PatternStatutoryCodeEdition.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.PublisherDeering __AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year._PatternYear.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year.YearJURISDICTIONYESPUBLISHERDeeringStateStatuteCode of Civil Procedure section 916 StateStatute.__SectionOrSections section 916 StateStatute.__SectionOrSections._PatternX1.X1StateStatute.__SectionOrSections.RequiredSectionSymbol section StateStatute.__SectionOrSections.RequiredSectionSymbol._PatternRequiredSectionSymbol.RequiredSectionSymbolStateStatute.__SectionOrSections.RequiredSectionSymbol.SectionSymbol§StateStatute.__SectionOrSections.X1916StateStatute._PatternStateStatutes.StateStatutesStateStatute.CalCal.StateStatute.CaliforniaCodeSubjectCiv. Proc. CodeStateStatute.Sectionsectionmaster_name___RESULTS_12"},"IconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"Display":"Code of Civil Procedure section 916","CitationRichText":"Code of Civil Procedure section 916","IconShepardSignal":{"Id":-1,"Title":"No Analysis","IconType":0,"ImagePath":"/Content/Images/blank.jpg","Description":null},"ShepardSignalLink":null,"ShowShepardSignal":false,"ShowParentLink":false,"ParentCitation":null,"SuggestionsForCitation":[],"SuggestionsForCite":[],"SelectedSuggestion":null,"IsSuggestionEnabled":false,"UseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"UseSuggestionIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"OriginalUseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"CitationMarkupText":"Code of Civil Procedure section 916","ShortText":"Cal. Civ. Proc. Code § 916","IsParentCorrect":true,"IsParentCorrectableConfirmed":false,"IsParentUnknownConfirmed":false,"IsParentCorrectable":false,"IsParentUnknown":false,"CitationOriginalText":"Code of Civil Procedure section 916","ModifiedCiteText":null,"MarkUp":null,"IsCheckCurrent":false,"PreviousCitationRetain":"Code of Civil Procedure section 916"},"CQ":"","TOA":"","html":"\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n
Code\r\nof Civil Procedure section 916
\r\n\r\n
\r\n\r\n\r\n\r\n\r\n"}" docpart="A3289A6B26A34DABBB4D405B27CCB3B9">Code of Civil Procedure section 916Code of Civil Procedure section 916Code of Civil Procedure section 916Full.StateStatuteCitecite__AfterStatutoryCite__AfterStatutoryCite._PatternAfterStatutoryCite.AfterStatutoryCite__AfterStatutoryCite.StatutoryCodeEditionCite()__AfterStatutoryCite.StatutoryCodeEditionCite.((__AfterStatutoryCite.StatutoryCodeEditionCite.))__AfterStatutoryCite.StatutoryCodeEditionCite._PatternStatutoryCodeEditionCite.StatutoryCodeEditionCite__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition._PatternStatutoryCodeEdition.StatutoryCodeEdition__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.PublisherDeering __AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year._PatternYear.Year__AfterStatutoryCite.StatutoryCodeEditionCite.StatutoryCodeEdition.Year.YearJURISDICTIONYESPUBLISHERDeeringStateStatuteCode of Civil Procedure section 916 StateStatute.__SectionOrSections section 916 StateStatute.__SectionOrSections._PatternX1.X1StateStatute.__SectionOrSections.RequiredSectionSymbol section StateStatute.__SectionOrSections.RequiredSectionSymbol._PatternRequiredSectionSymbol.RequiredSectionSymbolStateStatute.__SectionOrSections.RequiredSectionSymbol.SectionSymbol§StateStatute.__SectionOrSections.X1916StateStatute._PatternStateStatutes.StateStatutesStateStatute.CalCal.StateStatute.CaliforniaCodeSubjectCiv. Proc. CodeStateStatute.Sectionsectionmaster_name___RESULTS_12","Markup":"Code of Civil Procedure section 916","Master":"___RESULTS_12","name":"CITRUS_BOOKMARK8","Original_string":"Code of Civil Procedure section 916","Page":null,"Parallel":"","Pattern":"Full.StateStatuteCite","PinPage":"","ReadOrderIndex":5588,"Refers_To":null,"ShortText":"Cal. Civ. Proc. Code section 916","Start":5588,"Story":"wdMainTextStory"},"TOA":"","html":"\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n
Code\r\nof Civil Procedure section 916
\r\n\r\n
\r\n\r\n\r\n\r\n\r\n"}" docpart="A3289A6B26A34DABBB4D405B27CCB3B9">Code of Civil
Procedure section 916, the Court also has discretion
to stay this entire case pending the outcome of the appeal. (See URS Corp.
v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 883 [in the case
of an appeal of a denial of a disqualification motion, which is not subject to
an automatic stay, the appealing party may “seek relief from the trial court or
appellate court to stay proceedings ‘to maintain the status quo pending the
appeal’”]; see also Reed v. Superior Court (2001) 92 Cal.App.4th 448,
455 [“If the moving party desires that the trial be stayed pending appeal, the
party may first ask the trial court in its discretion to continue or stay the
underlying proceedings until the appeal is decided.”].)
The
Moving Parties contend that there is substantial overlap in the facts and legal
theories underlying Kitson’s claims against Spencer and Spencer’s cross-claims
against Kitson. Plaintiffs allege that the Lender Defendants induced Ross into loaning
Kitson $2 million of his personal funds and then tricked him into entering into
an agreement which waived his right to be repaid on that loan. Plaintiffs then
allege that the Lender Defendants took operational control of Kitson and began
a fraudulent scheme to “pump and dump” – stockpiling excess inventory weeks
before shutting down the company, refusing to pay vendors, and then liquidating
the inventory for profit. Spencer and BHK’s cross-claims are based on the
allegation that Ross and Lee induced BHK into infusing capital (totaling $6.5
million) into Kitson without disclosing certain material facts that contributed
to their mismanagement of the company. Spencer and BHK allege that Ross and Lee
did not intend to use their loans for the benefit of Kitson but instead
intended to benefit themselves personally. The Moving Parties argue that the
common nucleus across these various claims are statements, representations, and
conduct of the parties leading up to the credit arrangement between Spencer and
Kitson. The Moving Parties contend that these facts will determine whether
fraudulent statements were made, whether such fraudulent statements provide a
defense to contract formation or enforcement, and other similar issues. Consequently,
the Moving Parties argue that a trial on Spencer’s claim for breach of contract
against Kitson will necessarily include the full extent of Kitson’s theories
regarding Spencer’s alleged wrongdoing. Moreover, the Moving Parties argue that
Kitson’s affirmative claims challenge the underlying credit transaction, which
challenge will also form the basis of Kitson’s defense of Spencer’s fraud
claim. Finally, the Moving Parties argue that there is a potential for irreconcilable
outcomes if Spencer’s claims proceed to trial. In the event that Spencer loses
at trial but the August 29 Order is affirmed, Spencer would be in a position to
challenge the adverse verdict on the ground that Kitson never had standing to
defend itself during the trial of Spencer’s cross-claims.
Spencer
and BHK counter that there can be no stay because there is no final judgment
with regard to Spencer and BHK. But the pertinent question in determining
whether to impose a stay based on the perfecting of an appeal is not whether
there is a final judgment but whether the matters that remain are embraced or
affected by the matters on appeal. The appeal has already been filed, so the
issue of whether it was appropriate to enter judgment and to take up an appeal
is not within this Court’s purview. Accordingly, the Court finds that, in light
of the complex procedural posture of this case, and in light of Kitson’s
appeal, it would be appropriate and prudent to issue a stay of the proceedings
to maintain the status quo and to avoid potentially conflicting appellate
outcomes.
Conclusion
Based on the foregoing, the Court grants
the Moving Parties’ motion for a stay of proceedings.
The Court orders that all proceedings in the
instant action are stayed pending the outcome of Kitson’s appeal.
The Court sets a status conference
re status of appeal for _______________, at _______, in Dept. 50.
The
Court orders Plaintiffs to give notice of this ruling.
DATED:
July 23, 2020 _______________________________
Hon.
Teresa A. Beaudet
Judge,
Los Angeles Superior Court
Case Number: BC630062 Hearing Date: February 14, 2020 Dept: 50
THE COURT NEEDS ADDITIONAL TIME TO COMPLETE ITS REVIEW OF THE ISSUES RAISED AT THE LAST HEARING. THE TWO MOTIONS AND THE TRIAL SETTING CONFERENCE ARE CONTINUED TO MARCH 11, 2020 AT 8:30 A.M. IN DEPT. 50. PLAINTIFFS ARE ORDERED TO GIVE NOTICE..
Case Number: BC630062 Hearing Date: January 28, 2020 Dept: 50
THERE ARE TWO TENTATIVES POSTED:
Superior Court of California
County of Los Angeles
Department 50
fraser ross, et al.,
Plaintiffs,
vs.
salus capital partners, llc, et al.,
Defendants.
|
Case No.:
|
BC 630062
|
Hearing Date:
|
January 28, 2020
|
Hearing Time:
|
8:30 a.m.
|
[TENTATIVE] ORDER
RE:
JOINT MOTION OF PLAINTIFFS AND CROSS-DEFENDANTS FRASER ROSS, A-LIST,
INC. AND H-LIST, INC. AND THIRD PARTY DEFENDANT CHRISTOPHER LEE FOR SUMMARY
ADJUDICATION
|
AND RELATED
CROSS-ACTIONS
|
|
Background
This
action was filed on August 9, 2016 by Plaintiff Fraser Ross (“Ross”) against
Christopher Lee (“Lee”). Defendants Spencer Spirit Holdings Inc. (“Spencer”),
BHK Investments, LLC (“BHK”), Salus Capital Partners, LLC (“Salus”), and HGI
Asset Management Holdings, LLC (“HGI”) (collectively, the “Lenders”) were later
added as defendants, and A-List, Inc. (“A-List”) and H-List, Inc. (“H-List”)
were later added as plaintiffs. Lee was dismissed from the case on September 4,
2018. Plaintiffs’ operative Third Amended Complaint (“TAC”) was filed on August
31, 2018.
Ross is the founder and creator of the
Kitson-brand boutiques. (TAC ¶ 1.) In 2012, Ross suffered a life-threatening
illness that left him in a coma and required years of recovery. (TAC, ¶ 1.) Ross alleges that Kitson’s lenders,
Salus and BHK, seized upon his illness to steal his money and ruin his
business. (TAC, ¶ 1) Ross alleges that he was induced by Kitson’s lenders into
loaning Kitson $2 million of his personal funds to pay down Kitson’s line of credit
with Salus. (TAC, ¶ 2.) Then, they tricked him into entering into an agreement
which waived his right to be repaid on that loan. (TAC, ¶ 2.) Next, despite a
clear conflict of interest, the lenders took operational control of Kitson, and
began a fraudulent scheme to “pump and dump;” namely, they stockpiled excess
inventory just weeks before closing the company down, refused to pay the
vendors who sold them the inventory, and liquidated the inventory, making a
profit. (TAC, ¶¶ 3-4.)
On
October 16, 2018, Salus and HGI filed a cross-complaint against A-List, H-List,
and Lee (“Salus XC”). On October 23, 2018, Spencer and BHK filed a
cross-complaint against Ross, A-List, and H-List (“BHK XC”). On October 24,
2018, Spencer and BHK filed a third-party complaint against Lee (“BHK 3PC”).
Ross,
A-List, H-List, and Lee (collectively, the “Kitson Parties”) now move for
summary adjudication of the following causes of action:
In the Salus XC: the
first cause of action for breach of contract against A-List and H-List;
In the BHK XC, the
first cause of action for breach of contract against A-List and H-List, the
second cause of action for conversion against Ross, A-List, and H-List, the
third cause of action for fraud against Ross, A-List, and H-List, and the
fourth cause of action for unjust enrichment against Ross;
In the BHK 3PC,
the first cause of action for breach of contract against Lee, the second cause
of action for fraud against Lee, and the third cause of action for unjust
enrichment against Lee.
Salus,
HGI, BHK, and Spencer oppose.[1]
Evidence
The
Court rules on the Kitson Parties’ evidentiary objections as follows:
Objections
1-5, 8-17, 20, and 22 are overruled
Objections
6-7, 18-19, 21, 23-27 are sustained
The
Kitson Parties also object to the Lenders’ raising unpleaded theories or facts
in their opposition to the motion for summary adjudication. The Court declines
to rule on these objections as they are not based on evidence, but the Court
will address them to the extent that these objections are relevant or material
to the parties’ substantive arguments below.
Legal
Standard
“[A] motion for summary judgment shall be
granted if all the papers submitted show that there is no triable issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law.” ((Code Civ. Proc., § 437c, subd. (c).)
The moving party bears the initial burden of production to make a prima facie showing that there are no
triable issues of material fact. ((Aguilar v.
Atlantic Richfield Co. (2001) 25
Cal.4th 826, 850.) If the moving party carries this burden, the
burden shifts to the opposing party to make a prima facie showing that a
triable issue of material fact exists. (Ibid.) 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.)
When
a defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot
be established; or (2) that
there is a complete defense to that cause of action. ((Code
Civ. Proc., § 437c, subd. (p)(2).)
Discussion
Authority
to File MSA for Kitson
As
a threshold matter, the Lenders contend that neither Ross nor Lee have the
authority to direct Kitson to file this motion, and therefore, summary
adjudication as to Kitson must be denied. But the Lenders have offered no
evidence of either Ross or Lee’s purported lack of authority, and citing to the
Court’s August 29, 2019 order on the Lenders’ motion for summary
judgment/adjudication does not suffice as evidence. Further, the Lenders have
presented no controlling authority for the proposition that a motion for
summary adjudication that is not authorized by a “duly authorized
representative” of a company is a ground for denial.
Allegations
of the Salus XC
Ross
founded Kitson in 2000. (Salus XC, ¶ 9.) Ross hired Lee to serve as Kitson’s
CEO in August 2011. (Salus XC, ¶ 9.) In 2013, Lee approached Salus to finance
Kitson’s growth initiative. (Salus XC, ¶ 10.) On May 13, 2013, Salus entered
into a credit agreement with Kitson, under the terms of which Salus established
a senior secured credit facility in the maximum principal amount of $15
million, including a $10 million revolving line of credit and a $5 million term
loan (the “Credit Agreement”). (Salus XC, ¶ 11, Ex. A.) The Credit Agreement
was secured by, among other things, a first priority security interest in all
or substantially all of Kitson’s assets, including its inventory (the “Security
Agreement”). (Salus XC, ¶ 12, Ex. B.)
Through
2015, Kitson’s business continued to falter, so Salus allowed Kitson to borrow
additional amounts under the Credit Agreement. (Salus XC, ¶ 14.) The Credit
Agreement was amended seven times between February 24, 2014 and August 7, 2015.
(Salus XC, ¶ 14.) Unknown to Salus and in violation of the terms of the Credit
Agreement, on January 5, 2015, Lee executed a promissory note on behalf of
Kitson to evidence a $2 million loan from Ross to Kitson (the “$2 Million
Loan”). (Salus XC, ¶ 15, Ex. D.) The loan was funded in February 2015. (Salus
XC, ¶ 15.) In early spring 2015, Salus discovered that Kitson was $1.3 million
past due with regard to the payment of sales taxes in California and Nevada.
(Salus XC, ¶ 16.) On or about April 1, 2015, Salus learned of the $2 Million
Loan. (Salus XC, ¶ 16.) On April 2, 2015, Salus delivered to Kitson a Notice of
Default. (Salus XC, ¶ 17, Ex. E.) The Notice of Default was based on Kitson’s
failure to pay taxes, the incursion of additional debt, and Kitson’s failure to
inform Salus that Kitson had been sued by third parties. (Salus XC, ¶ 17.) To
remedy the default, Salus demanded that Kitson execute a subordination
agreement with respect to the $2 Million Loan, and a Subordination Agreement
was subsequently signed by Kitson and Ross as of April 14, 2015. (Salus XC, ¶
18, Ex. F.)
Also,
in April 2015, Ross and Lee reached an agreement under which Ross agreed to
sell certain shares of Kitson to Lee, and thereafter, to resign as an officer
and director of the company. Ross signed the documents necessary to effectuate
the transaction and resigned as an officer and director of Kitson. (Salus XC, ¶
19.) In early 2015, because of Kitson’s continued poor performance, Salus
informed Kitson that it would need to raise a minimum of $4 million of
incremental capital while also commencing to prepare for a potential bankruptcy
filing. (Salus XC, ¶ 20.) Spencer emerged as a strategic investor and offered
$4 million of incremental capital to Kitson. (Salus XC, ¶ 20.) While
negotiations with Spencer were proceeding, Kitson prepared for a possible
Chapter 11 bankruptcy filing. (Salus XC, ¶ 21.) Kitson initiated a warehouse
sale to liquidate aged inventory and to generate cash. Kitson also began to
increase its new inventory so that it could draw more under the Salus line of
credit. (Salus XC, ¶ 21.)
The
bankruptcy was staved off when an agreement was reached with Spencer. (Salus
XC, ¶ 22.) On May 15, 2015, Kitson (acting through Lee), Salus, and BHK (a
special purpose entity formed by Spencer) entered into a Waiver, Joinder and
Sixth Amendment to Credit Agreement under which BHK joined the Credit Agreement
by providing a $4 million advance to Kitson (the “Sixth Amendment”). (Salus XC,
¶ 22.) On November 6, 2015, Kitson hired James Wong as Chief Restructuring
Officer. (Salus XC, ¶ 23.) Mr. Wong engaged liquidators to conduct store
closing and other sales at various Kitson stores. (Salus XC, ¶ 24.) Kitson
ultimately opted to enter into an Assignment for the Benefit of Creditors
(“ABC”) in December 2015. (Salus XC, ¶¶ 26-27.) Winter Harbor, LLC (“Winter
Harbor”) was designated the assignee to take title to the assets of the company,
liquidate those assets, and oversee all matters relating to the wind-down of
Kitson’s business. (Salus XC, ¶ 27.) The ABC was executed by Mr. Wong on behalf
of A-List and H-List, and became effective on December 12, 2015. (Salus XC, ¶
28.) Contemporaneously with the assignment, Winter Harbor and Salus entered
into a Funding Agreement pursuant to which Salus agreed to advance funds to
Winter Harbor in order to fund the wind-down. (Salus XC, ¶ 30.) After the
wind-down, Salus was still owed $3.5 million. (Salus XC, ¶ 31.)
On
October 20, 2016, Winter Harbor, as assignee, filed a lawsuit against Salus
alleging that Salus breached the Funding Agreement. (Salus XC, ¶ 32.) The case
was settled on February 16, 2017. (Salus XC, ¶ 32.) The settlement included a
general release. (Salus XC, ¶ 32.)
Allegations
of the BHK XC and BHK 3PC
The
basic background facts of BHK’s Cross-Complaint and Third Party Complaint are essentially
the same as those alleged in Salus’s Cross-Complaint. Additionally, BHK alleges
that as a condition of BHK’s agreement to infuse capital into Kitson, on or
about May 15, 2015, Ross entered into a Consulting Agreement with A-List
agreeing to provide full-time merchandising, marketing, and store design
services to A-List. (BHK XC, ¶ 36.) Ross also agreed not to compete with Kitson
or to accept any employment or engagements that would create a conflict of
interest for Ross. (BHK XC, ¶ 36.) As another condition of BHK’s agreement to
infuse capital into Kitson, on or about May 15, 2015, Lee entered into a
Stockholders Agreement, pursuant to which Lee agreed that he would be divested
of all shares of common stock held by Lee in the event of Lee’s termination
from A-List. (BHK XC, ¶ 38; BHK 3PC, ¶ 27.) BHK infused an additional $1
million into Kitson on or about August 17, 2015 and an additional $1.5 million
on or about September 25, 2015 (jointly, the “Last Out Advance Notes”). (BHK
XC, ¶ 43, Exs. B, C.) The $6.5 million (and its accrued and capitalized
interest) have not been repaid. (BHK XC, ¶ 45.)
BHK’s
Fraud Causes of Action
BHK’s
causes of action for fraud against the Kitson Parties are based on two theories
of fraud—the first is one based on concealment, with allegations that the
Kitson Parties fraudulently concealed material information from BHK, and the
second is one based on false promise, with allegations that the Kitson Parties
fraudulently induced BHK into loaning Kitson money.
First,
in support of the “fraudulent concealment” theory, BHK alleges that neither
Ross nor Lee disclosed to BHK or Spencer “the fraud scheme as outlined in the
prior iterations of Ross’ Complaints filed in this action, including but not
limited to the Second Amended Complaint, before BHK infused [] additional
capital into Kitson.” (BHK XC, ¶ 66 and BHK 3PC, ¶ 47; see also BHK XC, ¶ 16 and BHK 3PC, ¶ 14 [“. . . during Lee’s and
Ross’ control of Kitson, each intentionally concealed his actions from BHK so
as to induce BHK to infuse capital into Kitson . . . .”]; BHK 3PC, ¶ 65 [alleging
that Lee and Ross failed to disclose “any of their actions which drove, and
continued to drive, Kitson into financial ruin and place Kitson at the dire
financial position it was in at the time that BHK infused capital into Kitson”].)
BHK alleges that Ross and Lee conspired to use the capital infused by BHK for
their personal benefit “to free Kitson from the massive debt they had incurred
for Kitson” (BHK XC, ¶ 13 and BHK 3PC, ¶ 11; BHK XC, ¶ 13; see also BHK XC, ¶ 24 and BHK 3PC, ¶ 21 [“…to avoid personal
liability and bankruptcy for the sales tax obligations of Kitson, and the
massive debt of Kitson created by Ross and Lee, and to avoid defaulting on
Salus’ line of credit, Lee, with Ross’ consent, knowledge and approval and
ratification, convinced BHK . . . to infuse an initial $4 million into
Kitson”].)
The elements of an action for fraud based on
concealment are: “(1) the defendant must have concealed or suppressed a
material fact, (2) the defendant must have been under a duty to disclose the
fact to the plaintiff, (3) the defendant must have intentionally concealed or
suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff
must have been unaware of the fact and would not have acted as he did if he had
known of the concealed or suppressed fact, and (5) as a result of the
concealment or suppression of the fact, the plaintiff must have sustained
damage.” ((Marketing
West, Inc. v. Sanyo Fisher Corp. (1992) 6 Cal.App.4th 603, 612-613.)
The
Kitson Parties contend that the concealment claim is without merit because (1)
some of the allegedly concealed facts were not concealed, (2) some of the
allegedly concealed facts are not facts that Ross or Lee had a duty to
disclose, and (3) none of the allegedly concealed facts could have been the
immediate cause of BHK’s decision to lend money to Kitson.
As
set forth in BHK’s responses to A-List’s Special Interrogatories, BHK contends
that the Kitson Parties (namely, Lee and Ross[2])
concealed the following facts both in advance of BHK makings its initial loan
in May 2015 and in advance of BHK making additional loans in August 2015 and
September 2015:
Ross suffered from
physical, physiological or emotional issues that impacted his ability to
properly and appropriately participate in the management and operation of
Kitson, or that impacted his ability to properly and appropriately understand
contracts and other agreements entered into by Kitson or by him, including the
Sixth Amendment and the Consulting Agreement.
Lee manipulated
and was manipulating Ross into believing that Kitson could grow, or that Lee
had represented to Ross that Lee could grow Kitson.
Ross contended
that Lee defrauded Ross into making a $2 million loan to Kitson.
Lee caused Kitson
and Ross to reject an offer allegedly received from Tengram.
In or about April
2015, Ross was suffering from a life-threatening illness, Ross did not have the
capacity to work, and Ross should not be placed under stress.
On or about April
13, 2015, Ross was advised by a physician as to that fact that he was suffering
from a life-threatening illness, that he did not have the capacity to work, and
that he should not be placed under stress.
On or about April
13, 2015, at the time Ross was presented with documents to sign, including the
assignment by Ross to Lee of his shares in Kitson and Ross’ resignation as an
officer and director of Kitson, Ross was heavily medicated, lacked the capacity
to enter into binding agreements, and did not have independent counsel to
review the documents and represent his interests.
Ross claimed that
Lee presented to Ross only the signature page to the Consulting Agreement, and
only did so after providing Ross with sleep medication.
Ross claimed he
signed the Consulting Agreement in an inebriated condition, and without access
to the actual terms of the Consulting Agreement.
Ross contends that
Lee defrauded Ross into waiving his right to repayment of his $2 million loan
to Kitson.
Lee had engaged in
conduct such as foregoing opportunities and benefits to Kitson, hiring
unqualified employees, hiring employees with personal affiliations to Lee,
engaging in self-dealing transactions, providing himself with improper and
unauthorized salary and personal expenses.
Ross and Lee knew
about the above conduct and/or Ross suspected that Lee had engaged in such
conduct. (A. Khan Decl., Ex. 806, Response to Interrogatory No. 15.)
As
to Statements 3, 7, 8, 9, and 10, the Kitson Parties argue that these are not actionable
because Lee did not know of these claims and contentions until well after he
had resigned from Kitson in September 2015. (Kitson Parties’ Undisputed
Material Fact (“UMF”) 40-44.) In other words, Lee could not have concealed
facts from BHK if he was unaware of those same facts at the material times. In
response, BHK argues that Lee’s knowledge is immaterial. (Responses to UMF
40-44.) But it is unclear why Lee’s knowledge is immaterial when (a) the
fraudulent concealment claim is asserted against him (see BHK 3PC, ¶¶ 59-67) and (b) BHK does not dispute that its
responses to the Special Interrogatories comprise “all of its contentions
regarding Lee and Ross’s alleged fraud” (see
UMF 39). BHK does not otherwise offer any evidence that Lee did, in fact,
have knowledge about Ross’s state of mind as set forth in Statements 3, 8, 9,
and 10.
As
to Statement 7, the Court notes that it is not a fact about Ross’s state of
mind but a fact about Ross’s “state of being” (i.e., he was heavily medicated, lacked the capacity to enter into
binding agreements, and did not have independent counsel to review the
documents and represent his interests). Therefore, the fact that Lee did not
know that Ross “suspected or claimed” that he was heavily medicated, that he
lacked the capacity to enter into binding agreements, and that he did not have
independent counsel does not answer the question of what Lee knew at the material times so that he
could disclose those facts to BHK. (UMF 41.)
As
to Ross, the Kitson Parties argue that Statements 3, 7, 8, 9, and 10 are merely
allegations he made against Lee in the original unverified complaint filed in
this case. (UMF 45-48.) Although not explicitly argued in these terms, the
implication is that the nature of Ross’s claims means that Ross could not have
known of his contentions about Lee’s conduct at the time they were occurring.
For example, if Lee had been improperly medicating Ross, Ross could not have
known that (and thus, could not have disclosed that to BHK) precisely because
Ross was inebriated as a result. While BHK is correct in arguing that Ross’s
allegations in his original complaint are binding as to him, Ross does not allege in his original complaint
that he knew at the time he signed the Consulting Agreement that he had been
given sleep medication. (See Compl.,
¶ 17.) ((Hearn
Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4th
117, 131-132 [“…a pleading party may be bound by the factual allegations it
makes in a complaint, even if the complaint is not verified” (emphasis in
original)].) Furthermore, that Ross alleged that Lee had defrauded him in
the past does not mean that Ross now admits that he knew of the alleged fraud at the time the fraud was committed.
Next,
the Kitson Parties contend that Statements 2, 11, and 12 are merely allegations
from Ross’s unverified Second Amended Complaint, and that BHK has no evidence
to support that these statements were concealed by Ross or Lee. (UMF 46-48.) However,
the Court notes that the only evidence cited by the Kitson Parties in support
of their contention is the Second Amended Complaint itself. (UMF 46-48.) It is
worth reiterating here that a defendant moving for summary judgment or
adjudication has the initial burden
to show that there are no triable issues of material fact. While a defendant
can meet this burden by presenting evidence “that the plaintiff does not
possess, and cannot reasonably obtain, needed evidence,” actual evidence is
still required, typically in the form of “admissions by the plaintiff following
extensive discovery to the effect that he has discovered nothing.” (Aguilar v. Atlantic
Richfield Co., supra, 25 Cal.4th at pp. 854-855.)
In other words, a defendant cannot meet its initial burden by “simply
point[ing] out that the plaintiff does not possess, and cannot reasonably
obtain, needed evidence.” ((Ibid. .) Here, the Second Amended Complaint does not suffice as
evidence showing that BHK does not possess and cannot reasonably obtain
evidence that Ross or Lee concealed Statements 2, 11, and 12 from BHK. Therefore,
a question of fact exists as to whether some of the allegedly concealed facts
were, in fact, concealed from BHK. Because summary adjudication may only be
granted if it completely disposes of a cause of action (Code
of Civil Procedure section 437c, subdivision (f)(1)), it is not necessary
for the Court to consider the Kitson Parties’ arguments as to immateriality or
the existence of a duty to disclose because those arguments only concern a
subset of the twelve statements.
The
Kitson Parties do argue that for all twelve statements, BHK cannot establish
the justifiable reliance element of the fraudulent concealment claim. ((See Alliance
Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239 [“Reliance exists
when the misrepresentation or nondisclosure was an immediate cause of the
plaintiff’s conduct which altered his or her legal relations, and when without
such misrepresentation or nondisclosure he or she would not, in all reasonable
probability, have entered into the contract or other transaction.”].) The
Kitson Parties submit evidence that BHK chose to enter into the Sixth Amendment
with only a limited due diligence period. (UMF 28-30.) The Kitson Parties also
argue that it was not possible that BHK acted in reliance on the alleged
concealments in advancing the second and third loans because BHK had
comprehensive oversight into Kitson’s operations from the moment it funded the
initial loan. (UMF 32.) BHK appointed a director to Kitson’s board of
directors. (UMF 33.) BHK also appointed an “oversight party” who was involved
in the day-to-day operations of Kitson and whose purpose was to resolve any
problems that could not have been identified during the due diligence period.
(UMF 31, 34.) The Kitson Parties argue that none of the twelve concealed facts
could have been the immediate cause of BHK’s decision to loan money to Kitson.
But as the Kitson Parties themselves note, “[e]xcept in the rare case where the
undisputed facts leave no room for a reasonable difference of opinion, the
question of whether a plaintiff’s reliance is reasonable is a question of
fact.” (Ibid.)
Here, not only are most of the Kitson Parties’ facts disputed (see Response to UMF 28-32, 34), the
Court does not find that this is a rare case where there is no room for a
reasonable difference of opinion. Indeed, that there was a shortened due
diligence period suggests that BHK made its lending decision based on
representations and omissions by Ross and Lee. The Kitson Parties have not
demonstrated that there is no room for a reasonable difference of opinion as to
whether BHK’s reliance on Ross and Lee’s omissions was reasonable.
Second,
in support of the “fraudulent inducement” theory, BHK alleges that the Kitson
Parties fraudulently induced BHK into loaning money to Kitson by representing
that they intended to honor and perform under the Consulting Agreement and the
Stockholders Agreement and that the capital infusion from BHK would be used for
the benefit of Kitson and not the personal benefit of Ross or Lee. (BHK XC, ¶
64; BHK 3PC, ¶ 61.) With respect to Ross and the Consulting Agreement, BHK
alleges that Ross had no intention of honoring or performing under the
Consulting Agreement, and instead intended to engage in actions that would
violate the conflict of interest provisions. (BHK XC, ¶ 37.) With respect to
Lee and the Stockholders Agreement, BHK alleges that Lee did not intend to
honor or perform under the Stockholders Agreement because Lee purported to
improperly transfer Kitson common stock to Ross on or about July 29, 2018. (BHK
3PC, ¶¶ 44, 61.)
Among
other things, the Kitson Parties argue that the fraudulent inducement claim is
without merit because it is nothing more than a breach of contract claim.
“[C]onduct amounting to a breach of contract becomes tortious only when it also
violates a duty independent of the contract arising from principles of tort
law.” ((Erlich v.
Menezes (1999) 21 Cal.4th 543, 551.) “An omission to perform a contract
obligation is never a tort, unless that omission is also an omission of a legal
duty.” ((Ibid. .) While a contract that is fraudulently
induced may support an award of tort damages, “something more than
nonperformance is required to prove the defendant’s intent not to perform his
promise.” ((Las
Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d
1220, 1239.)
The
Kitson Parties submit evidence that both Ross and Lee intended to perform under
the Consulting Agreement and the Stockholders Agreement, respectively. (Lee
Decl., ¶ 17; Ross Decl., ¶ 6.) BHK counters that Ross and Lee’s subsequent
actions show that they did not have the intent to perform pursuant to the
agreements. (Las Palmas Associates v. Las
Palmas Center Associations, supra, 235 Cal.App.3d
at p. 1239 [“…the subsequent conduct of a defendant, such as his failure to
immediately carry out his pledge has some evidentiary value to show that a
defendant made the promise without the intent to keep the obligation.”]; Tenzer v. Superscope
(1985) 39 Cal.3d 18, 30 [noting that “fraudulent intent must often be
established by circumstantial evidence” such as “defendant’s insolvency, his
hasty repudiation of the promise, his failure even to attempt performance, or
his continued assurances after it was clear he would not perform”].) BHK
offers as evidence of Lee’s “hasty repudiation” of the Stockholders Agreement
the fact that Lee failed to honor the “right of first refusal” provision therein
when he purported to transfer his shares to Ross in July 2018. (Response to UMF
36.) The Stockholders Agreement prevented Lee from transferring any shares of
his stock without BHK’s prior approval. (BHK 3PC, ¶ 31.) But as noted by the
Kitson Parties, Lee’s purported “repudiation” can hardly be characterized as
“hasty,” since the Stockholders Agreement was executed in 2015, and the
attempted transfer took place in 2018. As far as Ross’s intent, the Kitson
Parties argue that Ross could not have intended to deceive or induce BHK to
loan Kitson money because his execution of the Consulting Agreement was a
condition of BHK’s agreement to loan Kitson money. (BHK XC, ¶ 36.) The Kitson
Parties submit evidence that Ross was not involved in the BHK transaction
negotiations, and his only understanding was that he had to sign the Consulting
Agreement in order for the loan to close. (UMF 24-25.) BHK counters that
because Ross subsequently left his position at Kitson in October 2015, an
inference can be made that he never intended to perform under the Consulting
Agreement. But the Court notes that it is undisputed that Ross acted consistent
with the role of consultant defined in the Consulting Agreement. (UMF 27.)
As
far as the third misrepresentation at issue (that Lee and Ross would use the
capital infusion for the benefit of Kitson and not for their own personal
benefit), the Kitson Parties argue that the promissory fraud claim is not
actionable because BHK itself alleges that the funds were used for Kitson’s
benefit. (BHK XC, ¶ 35 [alleging that BHK’s money was used to pay “outstanding
amounts due to vendors, rents, utilities and professional fees for debts
incurred by Kitson”].) That payment of these amounts also benefited Ross and
Lee personally (who are alleged to have personal liability for Kitson’s sales
tax obligations) does not imply an intent to deceive. In any event, the Kitson
Parties submit evidence that BHK was aware of Kitson’s tax liabilities before
it executed the Sixth Amendment. (UMF 13, 16-19.) BHK does not offer any
evidence in response that raises a triable issue as to the element of Ross and
Lee’s intent to use BHK’s money to
benefit themselves rather than Kitson. (Response to UMF 13, 16-19.) Therefore,
the Court finds that BHK has not offered any evidence that raises a triable
issue of fact as to Lee or Ross’s intent to perform under the contracts at
issue, and accordingly, BHK has not raised a triable issue of material fact as
to whether the fraudulent inducement claim is nothing more than a breach of
contract claim.
The
Court notes that a motion for summary adjudication may only be granted “if it
completely disposes of a cause of action . . . .” ((Code
Civ. Proc., § 437c, subd. (f)(1).) Here, the fraud causes of action
asserted by BHK against the Kitson Parties are pleaded as one “cause of action”
for “fraud/deceit, promissory fraud.” (BHK XC, p. 14:20; BHK 3PC, p. 15:2.) “Whether
a complaint in fact asserts one or more causes of action for pleading purposes
depends on whether it alleges invasion of one or more primary rights.” ((Hindin v. Rust (2004)
118 Cal.App.4th 1247, 1257.) A plaintiff’s primary right is “simply the
plaintiff’s right to be free from the particular injury suffered,” and “must
therefore be distinguished from the legal
theory on which liability for that injury is premised.” (Ibid. [emphasis
in original].) “[U]nder the primary rights theory, the determinative factor
is the harm suffered. When two actions involving the same parties seek
compensation for the same harm, they generally involve the same primary right.”
((Boeken v.
Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798.) Here, BHK’s
“primary right” can be construed as the right to be free from fraudulent
conduct in connection with the loan transaction. And while BHK alleges multiple
legal theories under which recovery for fraud can be predicated, BHK alleges
only a single injury suffered—loaning $6.5 million to Kitson under false
pretenses. Therefore, the Court finds that, even though BHK has failed to raise
a triable issue of fact as to the fraudulent inducement theory, summary
adjudication of that portion of the cause of action is improper.
Salus
and BHK’s Contract Causes of Action
Salus’s
first cause of action for breach of contract against A-List and H-List is based
on the $3.5 million deficiency due and owing under the Credit Agreement. (Salus
XC, ¶ 40.)
In
support of BHK’s causes of action for breach of contract, BHK alleges that
Ross, A-List, and H-List breached the Sixth Amendment (1) by failing to pay BHK
the amounts due to be repaid by no later than the maturity date, (2) by
misrepresentations made on their behalves, with respect to the insolvency of
Kitson, and (3) by failing to repay the Last Out Advance Notes. (BHK XC, ¶¶
52-54.) BHK alleges that Lee breached the Stockholders Agreement by failing to
provide BHK with the right of first refusal of his 1,000 shares of Common Stock
and by improperly transferring shares of common stock to Ross in or about late
July 2018. (BHK 3PC, ¶¶ 56-57.)
The
Kitson Parties argue that Salus and BHK failed to submit a verified statement
of claim or “proof of claim” and have thus waived their right to recover under
the Credit Agreement and Sixth Amendment. Pursuant to section 5(e) of the ABC, Winter Harbor had
the power to “require all of [Kitson’s] creditors to whom any balance is owing
to submit verified statements to [Winter Harbor] of said claim(s), pursuant to California Code of Civil Procedure § 1802.”
(A. Khan Decl., Ex. 803 at Ex. G, § 5(e).)
Section 1802 provides the procedure for
creditors to submit claims “to be able to share in the distribution of proceeds
of the liquidation of the assignor’s assets” after receiving notice of the ABC.
((Code Civ. Proc., § 1802, subd. (b).)
It
is undisputed that Salus and BHK had notice of the ABC, and it is further
undisputed that neither Salus nor BHK filed a statement of claim with Winter
Harbor. (UMF 54-56.) However, BHK and Salus contend that their failure to file
a statement of claim is immaterial because neither the ABC nor Code of Civil Procedure section 1802 provide that
failure to submit a claim results in waiver of the claim. The Court notes that
although the Kitson Parties argue in reply that the ABC requires proofs of
claim “as a condition for recovery,” the Kitson Parties do not cite to any
section of the ABC where this requirement is set forth. (Reply, p. 8:19-20.)
The only section of the ABC cited by the Kitson Parties is section 5(e), and that section merely
states that Winter Harbor has the power
to require submission of statements of claims. Similarly, there is nothing
in section 1802 that provides that
failure to comply with the claims filing deadline bars later recovery by
creditors.
The
Kitson Parties next argue that Salus’s breach of contract cause of action is
barred because Salus cannot claim a security interest in Kitson’s future tort
recovery against Salus. The Kitson Parties point out that the Credit Agreement
is secured by a first priority security interest in Kitson’s assets arising
from the Security Agreement dated May 13, 2013. (UMF 2.) The Security Agreement
provides that Kitson grants Salus “a lien on and security interest in[,] . . .
whether not existing or hereafter arising or acquired from time to time,” “all
Commercial Tort Claims . . . .” (UMF 2; Lee Decl., Ex. 146, § 2.1.) Based on this, the Kitson Parties
argue that Salus is attempting to claim a secured interest in any recovery
Kitson is awarded against Salus, and that such an attempt is impermissible. But
as noted by Salus, even if the Kitson Parties were correct, this would not
dispose of the entire breach of contract cause of action because Salus’s breach
of contract claim is primarily based on Kitson’s alleged failure to repay the
loans extended by Salus under the Credit Agreement. (Salus XC, ¶ 43.) Whether
Salus may be barred from recovering some portion
of its breach of contract claim does not render the entire breach of contract claim meritless.
Accordingly,
the Court finds that the Kitson Parties have failed to meet their initial
burden of showing that Salus and BHK’s breach of contract causes of action are without
merit.
BHK’s
Conversion Cause of Action
In
support of BHK’s cause of action for conversion against Ross, A-List, and
H-List, BHK alleges that Ross, A-List, and H-List came into possession of $6.5
million and wrongfully exercised control over the $6.5 million that was to be
repaid to BHK by using that money “for the benefit of Ross’ personal
liabilities.” (BHK XC, ¶ 59.)
The
Kitson Parties argue that the conversion claim must fail as a matter of law
because (1) the conversion claim is a disguised breach of contract claim, (2) the
allegedly converted sum is not specific or identifiable sum, and (3) Salus had
control of the funds loaned to Kitson by BHK. For the same reasons discussed in
support of the promissory fraud “claim,” the Court finds that the Kitson
Parties have demonstrated that BHK cannot show that Kitson (or Ross) owed BHK
an independent duty separate from the duty already existing under the relevant
loan contracts. Therefore, the Court finds it unnecessary to discuss the Kitson
Parties’ other bases for summary adjudication of the conversion cause of action.
Summary adjudication is granted on the conversion cause of action.
BHK’s
Unjust Enrichment Causes of Action
In
support of BHK’s unjust enrichment causes of action against Ross and Lee, BHK
alleges that Ross and Lee unjustly benefitted from the payment of taxes for
which they were personally liable. (BHK XC, ¶ 74; BHK 3PC, ¶ 70.)
The
Kitson Parties contend that the unjust enrichment cause of action is without
merit because there exists an express, enforceable contract covering the
subject of the use of BHK’s loan funds. ((Durell v. Sharp Healthcare (2010) 183
Cal.App.4th 1350, 1370 [“As a matter of law, an unjust enrichment claim does
not lie where the parties have an enforceable express contract.”].) BHK
counters that the unjust enrichment claim is not based on Ross or Lee’s conduct
under their respective contracts with BHK but rather on Ross and Lee’s
allegedly fraudulent conduct, namely that Ross and Lee concealed material
information from BHK prior to BHK entering into the loan transaction.
“The
elements of an unjust enrichment claim are the receipt of a benefit and [the]
unjust retention of the benefit at the expense of another.” ((Peterson v. Cellco
Partnership (2008) 164 Cal.App.4th 1583, 1593 [internal quotations omitted;
brackets in original].) The Kitson Parties next argue that the unjust
enrichment claim fails because Ross and Lee did not receive a benefit or
unjustly retain a benefit because the tax liabilities paid by BHK’s funds were
Kitson’s liabilities. Here, it is undisputed that one of the purposes of BHK
lending money to Kitson was to allow Kitson to pay its taxes. (UMF 18-19.) BHK
contends that unjust enrichment may be claimed if the benefit conferred also
“saves the other from expense or loss.” ((Ghirardo v. Antonioli (1996) 14 Cal.4th
39, 51.) BHK argues that Lee and Ross were saved from an expense in the
form of having to pay Kitson’s tax bill out of their own pockets. But “[t]he
mere fact that a person benefits another is not of itself sufficient to require
the other to make restitution therefor.” (Peterson
v. Cellco Partnership, supra, 164 Cal.App.4th at p. 1593 (internal
quotation omitted).) “There is no equitable reason for invoking restitution
when the plaintiff gets the exchange which he expected.” (Ibid.) Here,
the evidence shows that payment of Kitson’s tax liabilities was within BHK’s
expectations for how its loan funds were to be used. Therefore, the fact that Ross
and/or Lee may have concealed information from BHK does not render the payment of those tax liabilities an unjust benefit to Ross
and/or Lee. Summary adjudication is granted on the unjust enrichment causes of
action.
Conclusion
Based on the foregoing, the Court grants
the Kitson Parties’ motion for summary adjudication as to BHK and Spencer’s
second cause of action for conversion asserted in BHK and Spencer’s
Cross-Complaint and BHK and Spencer’s fourth cause of action for unjust
enrichment asserted in BHK and Spencer’s Cross-Complaint and BHK and Spencer’s
third cause of action for unjust enrichment asserted in BHK and Spencer’s Third
Party Complaint. The Court denies the Kitson Parties’ motion for summary
adjudication as to BHK and Spencer’s first cause of action for breach of contract
asserted in BHK and Spencer’s Cross-Complaint, BHK and Spencer’s first cause of
action for breach of shareholders agreement asserted in BHK and Spencer’s Third
Party Complaint, and Salus and HGI’s first cause of action for breach of
contract asserted in Salus and HGI’s Cross-Complaint. The Court denies the
Kitson Parties’ motion for summary adjudication as to BHK and Spencer’s third
cause of action for fraud asserted in BHK and Spencer’s Cross-Complaint and BHK
and Spencer’s second cause of action for fraud asserted in BHK and Spencer’s
Third Party Complaint.
The
Court orders the Kitson Parties to give notice of this ruling.
DATED:
January 28, 2020 _______________________________
Hon.
Teresa A. Beaudet
Judge,
Los Angeles Superior Court
[1] For ease of
reference, the Court will refer to Salus and HGI as just “Salus” and BHK and
Spencer as just “BHK” unless there is a specific reason to separately refer to
the defendant and cross-complainant entities.
[2] BHK alleges that
Ross was acting on behalf of A-List and H-List at all relevant times. (BHK XC,
¶ 63.)
Superior Court of California
County of Los Angeles
Department 50
fraser ross, et al.,
Plaintiffs,
vs.
salus capital partners, llc, et al.,
Defendants.
|
Case No.:
|
BC 630062
|
Hearing Date:
|
January 28, 2020
|
Hearing Time:
|
8:30 a.m.
|
[TENTATIVE] ORDER
RE:
PLAINTIFFS AND CROSS-DEFENDANTS FRASER ROSS, A-LIST, INC., AND H-LIST,
INC.’S MOTION FOR STAY OF THE PROCEEDINGS
|
AND RELATED
CROSS-ACTIONS
|
|
Background
Plaintiffs
and Cross-Defendants Fraser Ross (“Ross”), A-List, Inc. (“A-List”), and H-List,
Inc. (“H-List”) (A-List and H-List to be jointly referred to as “Kitson” and
Ross and Kitson to be collectively referred to as “Plaintiffs”) move pursuant
to Code of Civil Procedure section 128, subdivision
(a)(3) for an order staying all proceedings and for an order entering final
judgment dismissing all claims as to Defendant Spencer Spirit Holdings Inc.
(“Spencer”) so that Plaintiffs may proceed with an appeal of the Court’s August
29, 2019 order granting summary judgment in Spencer’s favor.
Plaintiffs’
Third Amended Complaint (“TAC”) was filed on August 31, 2018 against Spencer,
BHK Investments, LLC (“BHK”), Salus Capital Partners, LLC (“Salus”), and HGI
Asset Management Holdings, LLC (“HGI”) (collectively, the “Lender Defendants”).
On October 16, 2018, Salus and HGI filed a cross-complaint against Kitson and
Christopher Lee (“Lee”). On October 23, 2018, Spencer and BHK filed a
cross-complaint against Kitson and Ross for, among other things, breach of
contract, conversion, and fraud.
The
Lender Defendants subsequently moved for summary judgment or, in the
alternative, summary adjudication of the TAC. On August 29, 2019, the Court
granted the motion for summary judgment as to Spencer and granted the motion
for summary adjudication on the third, fourth, and fifth causes of action as to
the Lender Defendants. As a result of that order, the only claims remaining to
be tried (at the time this motion was filed) were Ross’s cause of action for
violation of Business and Professions Code section
17200 against the Lender Defendants (except for Spencer) and Ross’s cause
of action for unjust enrichment/constructive trust against Salus and HGI. On
December 26, 2019 (after the filing of this motion), Plaintiffs filed a request
for dismissal of the TAC as to Salus and HGI. The dismissal was entered as
requested on December 27, 2019.
The
Court originally heard oral argument on this motion on January 8, 2020. The
Court continued the hearing on this motion to January 28, 2020, pending the
outcome of Plaintiffs and Lee’s motion for summary adjudication on certain of
the cross-claims asserted by the Lender Defendants against Plaintiffs and Lee.
Discussion
“Every court shall have the power to do all of
the following: . . . . (3) To provide for the orderly conduct of proceedings
before it, or its officers.” ((Code Civ. Proc., § 128,
subd. (a)(3).) The “case management tools available to trial courts”
include “the inherent authority to stay an action when appropriate.” ((Jordache
Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739,
758.)
Pursuant to the one final judgment rule, the
Court declined to enter judgment in favor of Spencer following the August 29,
2019 order granting Spencer’s motion for summary judgment because of Spencer’s
pending cross-claims against Plaintiffs. ((Maier Brewing Co. v. Pacific Nat. Fire Ins.
Co. (1961) 194 Cal.App.2d 494, 497 [“There can be but one final judgment in
an action, and that is one which in effect ends the suit in the court in which
it is entered, and finally determines the rights of the parties in relation to
the matter in controversy.”].) Notwithstanding this rule and
notwithstanding Plaintiffs’ assertion that the “presence of remaining cross-claims
between the same parties typically prevents entry of a final judgment,”
Plaintiffs now request that the Court enter judgment against Spencer based on
the “unique circumstances” of this case so that Plaintiffs may proceed with an
appeal of the August 29, 2019 order. (Mot., p. 4:24-25.) Spencer and BHK oppose
the motion.
Plaintiffs argue that the Court’s August 29,
2019 summary judgment order was based on a finding that Ross lacked standing to
pursue the claims asserted by Kitson against the Lender Defendants, and that
this finding “effectively forecloses” Spencer’s ability to litigate its own
claims against Kitson. (Mot., p. 4:27-28.) As a threshold matter, the Court
notes that in connection with the Court’s summary judgment order, the Lender
Defendants merely demonstrated that the pertinent causes of action had no merit
because an element of the causes of action (i.e.,
standing) was missing, and therefore, the Court found that summary adjudication
of those causes of action was appropriate. The Court made no order regarding
whether Ross’s lack of standing “effectively forecloses” any defendant’s
ability to prosecute cross-claims against any plaintiff. Plaintiffs contend
that Spencer, in essence, now has no cross-claim against Kitson that may to be
litigated, but Plaintiffs fail to cite to any order making this so. Further,
there is no evidence that Spencer’s cross-claim is the mirror image of
Plaintiffs’ claims against Spencer such that disposing of one actually disposes
of the other. ((See
Swain v. California Casualty Ins. Co. (2002) 99 Cal.App.4th 1, 5-6 [in
insurance coverage denial action, finding that trial court’s order granting
defendant insurer’s motion for summary judgment “effectively disposed of”
defendant insurer’s cross-claims for declaratory relief as to coverage
obligations].)
Plaintiffs
separately argue that judgment may be entered against Spencer because
Plaintiffs’ claims against Spencer are entirely distinct and separable from
Spencer’s claims against Kitson. However, this only lends further support to
the conclusion that the rights of the parties have not been conclusively
established. ((Ram
v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 9 [noting that the one final
judgment rule does not apply “when the case involves multiple parties and a
judgment is entered which leaves no issue to be determined as to one party”]);
(Horton v. Jones (1972)
26 Cal.App.3d 952, 958 [“A trial court has no authority to enter multiple final
judgments determining multiple issues between the same parties to an action.”].)
Alternatively,
as set forth in Plaintiffs’ reply, and in light of the dismissal of Plaintiffs’
claims against Salus and HGI, Plaintiffs request that judgment be entered
against Salus and HGI because there are no further claims or issues to be
decided between Plaintiffs and Salus/HGI except
a single cross-claim of Salus/HGI against Kitson. Plaintiffs contend that
this “single” cross-claim (a breach of contract cause of action against Kitson)
depends on whether Ross has standing to pursue Kitson’s affirmative claims. But
it is unclear why this must be so. First, no final judgment has been entered
regarding the standing issue. Until there is such judgment entered and it becomes
final, there is no preclusive effect. Second, as Spencer and BHK argue with
respect to Spencer’s cross-claim, there is a difference between lack of
standing to sue and lack of capacity to be sued. Plaintiffs offer no binding
authority for the proposition that if Kitson lacks standing to sue the Lender
Defendants, Kitson necessarily lacks the ability to be sued by the Lender Defendants.
Finally,
in light of the fact that the Court is denying the motion for summary
adjudication as to the breach of contract cause of action asserted by Salus and
HGI against Plaintiffs, and in light of the fact that the Court is denying the
motion for summary adjudication as to the breach of contract and fraud claims
asserted by Spencer (and BHK) against Plaintiffs, the Court finds that the one
final judgment rule prevents entry of judgment in Spencer or in Salus and HGI’s
favor because there are pending claims involving the same parties. The Court
further notes that, after reviewing the motion for summary adjudication and all
the complaints and cross-complaints at issue, the Court does not find that
Spencer (and BHK’s) remaining claims against Plaintiffs are mirror images of Plaintiffs’
claims against Spencer (and BHK). Accordingly, because entry of judgment is inappropriate,
the Court finds that there is no basis to issue a stay of proceedings.
Conclusion
Based on the foregoing, the Court denies
Plaintiff’s motion for a stay.
The
Court orders Spencer to give notice of this ruling.
DATED:
January 28, 2020 _______________________________
Hon.
Teresa A. Beaudet
Judge,
Los Angeles Superior Court
Case Number: BC630062 Hearing Date: January 08, 2020 Dept: 50
Superior Court of California
County of Los Angeles
Department 50
fraser ross, et al.,
Plaintiffs,
vs.
salus capital partners, llc, et al.,
Defendants.
|
Case No.:
|
BC 630062
|
Hearing Date:
|
January 8, 2020
|
Hearing Time:
|
8:30 a.m.
|
[TENTATIVE] ORDER
RE:
PLAINTIFFS AND CROSS-DEFENDANTS FRASER ROSS, A-LIST, INC., AND H-LIST,
INC.’S MOTION FOR STAY OF THE PROCEEDINGS
|
AND RELATED
CROSS-ACTIONS
|
|
Background
Plaintiffs
and Cross-Defendants Fraser Ross (“Ross”), A-List, Inc. (“A-List”), and H-List,
Inc. (“H-List”) (A-List and H-List to be jointly referred to as “Kitson” and
Ross and Kitson to be collectively referred to as “Plaintiffs”) move pursuant
to Code of Civil Procedure section 128, subdivision
(a)(3) for an order staying all proceedings and for an order entering final
judgment dismissing all claims as to Defendant Spencer Spirit Holdings Inc.
(“Spencer”) so that Plaintiffs may proceed with an appeal of the Court’s August
29, 2019 order granting summary judgment in Spencer’s favor.
Plaintiffs’
Third Amended Complaint (“TAC”) was filed on August 31, 2018 against Spencer,
BHK Investments, LLC (“BHK”), Salus Capital Partners, LLC (“Salus”), and HGI
Asset Management Holdings, LLC (“HGI”) (collectively, the “Lender Defendants”).
On October 16, 2018, Salus and HGI filed a cross-complaint against Kitson and
Christopher Lee (“Lee”). On October 23, 2018, Spencer and BHK filed a
cross-complaint against Kitson and Ross for, among other things, breach of
contract, conversion, and fraud.
The
Lender Defendants subsequently moved for summary judgment or, in the
alternative, summary adjudication of the TAC. On August 29, 2019, the Court
granted the motion for summary judgment as to Spencer and granted the motion
for summary adjudication on the third, fourth, and fifth causes of action as to
the Lender Defendants. As a result of that order, the only claims remaining to
be tried (at the time this motion was filed) were Ross’s cause of action for
violation of Business and Professions Code section
17200 against the Lender Defendants (except for Spencer) and Ross’s cause
of action for unjust enrichment/constructive trust against Salus and HGI. On
December 26, 2019 (after the filing of this motion), Plaintiffs filed a request
for dismissal of the TAC as to Salus and HGI. The dismissal was entered as
requested on December 27, 2019.
Currently,
Plaintiffs and Lee have a pending joint motion for summary adjudication of
certain of the Lender Defendants’ cross-claims, which is set for hearing on
January 28, 2020.
Discussion
“Every court shall have the power to do all of
the following: . . . . (3) To provide for the orderly conduct of proceedings
before it, or its officers.” ((Code Civ. Proc., § 128,
subd. (a)(3).) The “case management tools available to trial courts”
include “the inherent authority to stay an action when appropriate.” ((Jordache
Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739,
758.)
Pursuant to the one final judgment rule, the
Court declined to enter judgment in favor of Spencer following the August 29,
2019 order granting Spencer’s motion for summary judgment because of Spencer’s
pending cross-claims against Plaintiffs. ((Maier Brewing Co. v. Pacific Nat. Fire Ins.
Co. (1961) 194 Cal.App.2d 494, 497 [“There can be but one final judgment in
an action, and that is one which in effect ends the suit in the court in which
it is entered, and finally determines the rights of the parties in relation to
the matter in controversy.”].) Notwithstanding this rule and
notwithstanding Plaintiffs’ assertion that the “presence of remaining
cross-claims between the same parties typically prevents entry of a final
judgment,” Plaintiffs now request that the Court enter judgment against Spencer
based on the “unique circumstances” of this case so that Plaintiffs may proceed
with an appeal of the August 29, 2019 order. (Mot., p. 4:24-25.) Spencer and
BHK oppose the motion.
Plaintiffs argue that the Court’s August 29,
2019 summary judgment order was based on a finding that Ross lacked standing to
pursue the claims asserted by Kitson against the Lender Defendants, and that
this finding “effectively forecloses” Spencer’s ability to litigate its own
claims against Kitson. (Mot., p. 4:27-28.) As a threshold matter, the Court
notes that in connection with the Court’s summary judgment order, the Lender
Defendants merely demonstrated that the pertinent causes of action had no merit
because an element of the causes of action (i.e.,
standing) was missing, and therefore, the Court found that summary adjudication
of those causes of action was appropriate. The Court made no order regarding
whether Ross’s lack of standing “effectively forecloses” any defendant’s
ability to prosecute cross-claims against any plaintiff. Plaintiffs contend
that Spencer, in essence, now has no cross-claim against Kitson that may to be
litigated, but Plaintiffs fail to cite to any order making this so. Further,
there is no evidence that Spencer’s cross-claim is the mirror image of
Plaintiffs’ claims against Spencer such that disposing of one actually disposes
of the other. ((See
Swain v. California Casualty Ins. Co. (2002) 99 Cal.App.4th 1, 5-6 [in
insurance coverage denial action, finding that trial court’s order granting
defendant insurer’s motion for summary judgment “effectively disposed of”
defendant insurer’s cross-claims for declaratory relief as to coverage
obligations].)
Plaintiffs
separately argue that judgment may be entered against Spencer because
Plaintiffs’ claims against Spencer are entirely distinct and separable from
Spencer’s claims against Kitson. However, this only lends further support to
the conclusion that the rights of the parties have not been conclusively
established. ((Ram
v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 9 [noting that the one final
judgment rule does not apply “when the case involves multiple parties and a
judgment is entered which leaves no issue to be determined as to one party”]);
(Horton v. Jones (1972)
26 Cal.App.3d 952, 958 [“A trial court has no authority to enter multiple final
judgments determining multiple issues between the same parties to an action.”].)
Alternatively,
as set forth in Plaintiffs’ reply, and in light of the dismissal of Plaintiffs’
claims against Salus and HGI, Plaintiffs request that judgment be entered
against Salus and HGI because there are no further claims or issues to be
decided between Plaintiffs and Salus/HGI except
a single cross-claim of Salus/HGI against Kitson. Plaintiffs contend that
this “single” cross-claim (a breach of contract cause of action against Kitson)
depends on whether Ross has standing to pursue Kitson’s affirmative claims. But
it is unclear why this must be so. First, no final judgment has been entered
regarding the standing issue. Until there is such judgment entered and it
becomes final, there is no preclusive effect. Second, as Spencer and BHK argue
with respect to Spencer’s cross-claim, there is a difference between lack of
standing to sue and lack of capacity to be sued. Plaintiffs offer no binding
authority for the proposition that if Kitson lacks standing to sue the Lender
Defendants, Kitson necessarily lacks the ability to be sued by the Lender Defendants. Thus, the Court finds that the
one final judgment rule prevents entry of judgment in Spencer’s favor or in
Salus and HGI’s favor because there are pending claims involving the same
parties. Because entry of judgment is inappropriate, the
Court finds that there is no basis to issue a stay of proceedings.
Conclusion
Based on the foregoing, the Court denies
Plaintiff’s motion for a stay.
The
Court orders Spencer to give notice of this ruling.
DATED:
January 8, 2020 _______________________________
Hon.
Teresa A. Beaudet
Judge,
Los Angeles Superior Court
Case Number: BC630062 Hearing Date: November 07, 2019 Dept: 50
SATISFACTORY PROOF OF PAYMENT OF PRO HAC VICE FEES WAS FILED. NO APPEARANCE NECESSARY RE THE PRO HAC VICE ISSUE. THE STATUS CONFERENCE WILL BE HELD.