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This case was last updated from Los Angeles County Superior Courts on 06/02/2019 at 00:53:23 (UTC).

JAMES E MOORE VS EDWARD P HAYES

Case Summary

On 02/16/2016 JAMES E MOORE filed a Contract - Other Contract lawsuit against EDWARD P HAYES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0221

  • Filing Date:

    02/16/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Petitioner and Plaintiff

MOORE JAMES E.

Respondents and Defendants

DOES 1-20

HAYES EDWARD P.

Attorney/Law Firm Details

Petitioner and Plaintiff Attorney

LAW OFFICES OF JAMES P. GRIFFITH

Defendant Attorney

SLOAN DAVID MARK ESQ.

 

Court Documents

NOTICE OF CHANGE OF ADDRESS FOR ATTORNEY FOR DEFENDANTS

7/16/2018: NOTICE OF CHANGE OF ADDRESS FOR ATTORNEY FOR DEFENDANTS

Minute Order

7/16/2018: Minute Order

Minute Order

10/3/2018: Minute Order

PROOF OF SERVICE SUMMONS

3/9/2016: PROOF OF SERVICE SUMMONS

DECLARATION OF DAVID M. SLOAN, ESQ. TN SUPPORT OF MOTION FOR CHANGE OF VENUE AND MOTION FOR EXPENSES AND ATTORNEY'S FEES AGAINST PLAINTIFF'S COUNSEL (CCP ? 397, 396B)

4/1/2016: DECLARATION OF DAVID M. SLOAN, ESQ. TN SUPPORT OF MOTION FOR CHANGE OF VENUE AND MOTION FOR EXPENSES AND ATTORNEY'S FEES AGAINST PLAINTIFF'S COUNSEL (CCP ? 397, 396B)

Unknown

5/31/2016: Unknown

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS MOTION TO CHANGE VENUE; ETC

7/18/2016: PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS MOTION TO CHANGE VENUE; ETC

Minute Order

7/29/2016: Minute Order

NOTICE OF RELATED CASE

8/10/2016: NOTICE OF RELATED CASE

RULING RE: DEFENDANTS' MOTION FOR CHANGE OF VENUE AND FOR EXPENSES AND ATTORNEY'S FEES AGAINST PLAINTIFF' S COUNSEL.

8/12/2016: RULING RE: DEFENDANTS' MOTION FOR CHANGE OF VENUE AND FOR EXPENSES AND ATTORNEY'S FEES AGAINST PLAINTIFF' S COUNSEL.

NOTICE OF RELATED CASE

9/7/2016: NOTICE OF RELATED CASE

NOTICE OF MANDATORY SETFLEMENT CONFERENCE

1/20/2017: NOTICE OF MANDATORY SETFLEMENT CONFERENCE

NOTICE OF ENTRY OF ORDER TO SET TRIAL DATE, SET FINAL STATUS CONFERENCE, AND SET STATUS CONFERENCE RE SETTLEMENT

3/10/2017: NOTICE OF ENTRY OF ORDER TO SET TRIAL DATE, SET FINAL STATUS CONFERENCE, AND SET STATUS CONFERENCE RE SETTLEMENT

Minute Order

4/14/2017: Minute Order

NOTICE OF APPEAL/CROSS-APPEAL (UNLIMITED CIVIL CASE) (APPELLATE)

6/12/2017: NOTICE OF APPEAL/CROSS-APPEAL (UNLIMITED CIVIL CASE) (APPELLATE)

Minute Order

6/22/2017: Minute Order

NOTICE OF DEFAULT (UNLIMITED CIVIL APPEALS)

6/29/2017: NOTICE OF DEFAULT (UNLIMITED CIVIL APPEALS)

Unknown

6/30/2017: Unknown

57 More Documents Available

 

Docket Entries

  • 04/04/2019
  • at 08:30 AM in Department 78; Status Conference - Held

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  • 04/04/2019
  • Case Management Order; Filed by Clerk

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  • 04/04/2019
  • Minute Order ( (Status Conference)); Filed by Clerk

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  • 01/28/2019
  • at 08:30 AM in Department 78; Trial Setting Conference - Held

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  • 01/28/2019
  • Minute Order ( (Trial Setting Conference)); Filed by Clerk

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  • 11/05/2018
  • Appeal - Remittitur - Affirmed (B283112.); Filed by Clerk

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  • 10/03/2018
  • at 08:30 AM in Department 78; Unknown Event Type - Held

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  • 10/03/2018
  • Minute order entered: 2018-10-03 00:00:00; Filed by Clerk

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  • 07/16/2018
  • at 08:30 AM in Department 78; Unknown Event Type - Held

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  • 07/16/2018
  • at 08:30 AM in Department 78; Unknown Event Type

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146 More Docket Entries
  • 04/01/2016
  • DECLARATION OF EDWARD P. HAYES IN SUPPORT OF MOTION FOR CHANGE OF VENUE

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  • 03/16/2016
  • Notice; Filed by James E. Moore (Plaintiff)

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  • 03/16/2016
  • NOTICE OF RECORDATION OF LIS PENDENS

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  • 03/09/2016
  • Proof-Service/Summons; Filed by Plaintiff/Petitioner

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  • 03/09/2016
  • PROOF OF SERVICE SUMMONS

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  • 02/25/2016
  • Notice of Case Management Conference; Filed by Clerk

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  • 02/25/2016
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 02/16/2016
  • SUMMONS

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  • 02/16/2016
  • Complaint; Filed by James E. Moore (Plaintiff)

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  • 02/16/2016
  • VERIFIED COMPLAINT FOR: (1) BREACH OF FIDUCIARY DUTY; ETC

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Tentative Rulings

Case Number: BC610221    Hearing Date: March 02, 2021    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

JAMES MOORE;

Plaintiff,

vs.

edward hayes aka PHIL HAYES, et al.;

Defendants.

Case No.:

BC610221

Hearing Date:

March 1, 2021

[TENTATIVE] RULING RE: MOTIONS IN LIMINE

The facts and procedural status of this action has been set forth in prior orders of the Court. The purpose of this order is to rule on two Motions in Limine filed by defendant Edward P. Hayes (“Hayes).

MOTION IN LIMINE FOR TRIAL PREFERENCE

Hayes requests a preferential trial setting under Code of Civil Procedure section 36(a). Under section 36(a) a party over 70 years old may request a preferential trial setting when he or she meets two criteria: (1) the party has a substantial interest in the action as a whole, and (2) The health of the party is such that preference is necessary to prevent prejudicing the party’s interest in the litigation.

Hayes has introduced evidence that he is 89 years old and Hayes obviously has a substantial interest in the action. The only evidence Hayes has introduced on the issue of his health, however, is his attorneys’ declaration on information and belief that it would be difficult for Hayes to travel from Santa Cruz to Los Angeles for the trial. This is not a sufficient basis for a trial preference, however, because there is no reason to believe that the difficulty would be different today than it would be in the future. Accordingly, the Motion in Limine for a Trial Preference is DENIED

MOTION IN LIMINE FOR A BENCH TRIAL

Hayes moves for an order striking the jury trial demand and ordering that this action proceed as a bench trial. In determining whether a party has a right to a jury trial, the Courts look to the “gist” of the action. C&K Engineering Contractors v. Superior Court (1978) 23 Cal. 3rd. 1, 9. As the court held, “If the action is essentially one in equity and the relief sought “depends on the application of equitable doctrines, the parties are not entitled to a jury trial.” (id).

Plaintiff James Moore claims that this rule does not apply here because the complaint alleges causes of action based upon breach of contract and breach of fiduciary duty which are legal doctrines. As the Court held in Hodges the Superior Court (2006) 145 Cal. App 4th 278, 285, however:

“The fact that contract issues may be implicated does not transform an equitable action into one of law.(Walton v. Walton 31 Cal. App. 4th 277,287) [”There is no constitutional right to a jury trial in an action for specific performance, even though such action implicates legal issues regarding contract formation”]. As our Supreme Court explained, there is no right to jury trial in an action for damages for breach of contract where the sole basis for the action is the equitable theory of promissory estoppel.”

The Courts have also consistently held that actions for imposition of a constructive trust (Tibbits v. Fife (1958) 102 Cal. App. 2d 558, 572) or actions claiming the doctrine of promissory estoppel precludes the use of the Statute of Frauds as a defense (Jaffe v. Albertson Co. (1966) 243 Cal. App. 2d 592, 607-8) are also actions in equity for which there is no right to a jury trial, even though they also involve legal issues such as the interpretation of a contract.

To understand the “gist” of the action here one need only look at the complaint. In paragraph 6 Moore states “the gravamen of the action is for imposition of a constructive trust over specific property in favor of MOORE.” Paragraph 30 asserts that “A constructive trust over the property should be imposed under principles of fairness and equity” to avoid unjust enrichment. And paragraph 31 asserts that Hayes “Should be estopped by principles of fairness and equity from asserting the statute of frauds as a defense.”

The fact is that without applying the principles of equity, this trial would be a very short trial. Legally the holder of record title to property is presumed to be the owner of the property. What must be determined here is whether equitable principles override this presumption. And that is a decision that must be made by this Court, not by a jury.

Accordingly, Hayes’ Motion for a Bench Trial is GRANTED.

DATED: March 1, 2021

____________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC610221    Hearing Date: March 01, 2021    Dept: 78


Case Number: BC658420    Hearing Date: March 01, 2021    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

BOGHOS BABADJANIAN, et al.,

Plaintiffs,

vs.

ANDRE WEGNER, et al.;

Defendants.

Case No.:

Hearing Date:

BC658420

March 1, 2021

[TENTATIVE] RULING RE:

Defendant Joseph Sully’s Motion for dismissal of action for failure to amend pursuant to Cal. rules of court, rule 3.120(h) and ccp § 581(f)(2)

Unless Plaintiffs file an amended complaint prior to the hearing on this Motion, the Court will GRANT Defendant Joseph Sully’s Motion for Dismissal of Action. The Third Amended Complaint against Sully will be DISMISSED WITH PREJUDICE.

Factual Background

This is a conversion case. Plaintiff Boghos Babadjanian (“Babadjanian”) is a mechanic who would frequently enlist Defendant Andre Wegner (“Wegner”) to sell vehicles. (Third Amended Complaint (“TAC”) ¶¶ 10–13.) On January 15, 2012, Wegner told Babadjanian that he could sell Babadjanian’s red Ferrari. (TAC ¶ 14.) Babadjanian alleges that Wegner sold the Ferrari to Defendants Ben Jewelry, Inc. (“BJI”) and/or Yossi Dina (“Dina”) on March 15, 2012. (TAC ¶ 18.) Wegner did not present any indicia of legal ownership for the sale, and BJI and Dina knew that Wegner did not have the right to sell the vehicle. (TAC ¶ 20.)

Babadjanian visited BJI and Dina on April 1, 2012, and asked them if they knew that Wegner had sold a Ferrari. (TAC ¶ 22.) BJI and Dina did not tell Babadjanian that they had possession of the Ferrari. (TAC ¶ 26.) BJI and Dina sold the Ferrari to Defendant Ben Zicron on May 9, 2015. (TAC ¶ 34.) Zicron then sold the vehicle to Defendant Sully in October 2015. (TAC ¶ 44.) Sully repeatedly requested, but was not given, any certificate of title or ownership record for the Ferrari. (TAC ¶ 45.) Although Sully initially contacted Zicron through eBay, the sale was not completed through eBay. (TAC ¶ 44.) Babadjanian learned the Ferrari was registered to Sully in December 2015. (TAC ¶ 48.) Babadjanian first learned that BJI and Dina had sold the Ferrari to Zicron from Sully on August 1, 2017. (TAC ¶ 50.)

RELEVANT PROCEDURAL HISTORY

Plaintiffs filed their Complaint on April 19, 2017. They filed their First Amended Complaint (“FAC”) on May 30, 2017, alleging six causes of action:

  1. Unjust Enrichment

  2. Fraud

  3. Violation of Civil Code 1709-1710

  4. Conversion

  5. Common Counts: Money Had and Received

  6. Common Counts: ‘Services Rendered

On August 8, 2017, Babadjanian added BJI and Zicron as Doe defendants.

On November 14, 2017, this court overruled Sully’s Demurrer to the FAC and granted his Motion to Strike the punitive damages allegations, with leave to amend.

On November 29, 2017, Babadjanian filed the Second Amended Complaint.

On March 27, 2018, Babadjanian filed the TAC, alleging the same six cause of action.

On November 1, 2018, this Court denied Sully’s Motion to Strike.

On January 17, 2019, this Court granted Defendants BJI and Dina’s Motion for Judgment on the Pleadings based on Babadjanian’s bankruptcy filings.

On March 28, 2019, David Seror, Chapter 7 Trustee for the Bankruptcy Estate of Boghos Babadjanian, filed a Notice of Appearance and Substitution on March 28, 2019.

On April 22, 2019, the Court granted Sully’s Motion for Judgment on the Pleadings with leave to amend such that David Seror may be named as Plaintiff.

On November 9, 2020, this case was partially stayed as to Defendant Ben Zicron, but proceeded against Sully.

On January 19, 2021, Sully filed the instant Motion to Dismiss.

On February 10, 2021, Non-Party Seror (“Seror”) filed an Opposition.

On February 11, 2021, this Court continued the hearing on this motion.

On February 16, 2021, Seror filed a Supplemental Opposition.

On February 22, 2021, Sully filed a Reply.

DISCUSSION

  1. MOTION FOR DISMISSAL OF ACTION

The background in this case is that Plaintiff Babadjanian filed for bankruptcy in January 2016, prior to filing this action, but did not list the claims in this action in his bankruptcy petition. (Order, 4/22/19.) The Court found in its April 22, 2019 order that that Babadjanian lacks standing to prosecute the claims. (Order 4/22/19, p. 3.) Shortly before the Order, on March 28, 2019, David Seror (“Seror”) filed a Notice of Appearance and Substitution as Chapter 7 Trustee for the Bankruptcy Estate of Boghos Babadjanian. However, in the Court’s April 22, 2019 Order, the Court found that the filing of this Notice, without amending the complaint to add Seror as a Plaintiff, was insufficient and granted Sully’s Motion for Judgment on Pleadings “with leave to amend such that Seror may be named as Plaintiff in the pleading objected to.” (Order April 22, 2019.) Court granted Sully’s Motion for Judgment on the Pleadings with leave to amend such that Seror may be named as Plaintiff. (Order April 22, 2019.)

In the instant Motion to Dismiss, Sully reiterates the argument that Babadjanian lacks standing, and contends that because Plaintiffs have failed to amend the complaint following the granting of the Motion for Judgment on the Pleadings, the complaint should be dismissed against Sully. (Motion at pp. 7-8.)

Under Civil Procedure section 581, subdivision (f):

“(f) The court may dismiss the complaint as to that defendant when:

[…]

(2) Except where Section 597 applies, after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.” (Code Civ. Proc., § 581.)

Here, Plaintiffs have not filed an amended complaint since the order granting the Motion for Judgment on the Pleadings on April 22, 2019, nearly two years ago. “A motion for judgment on the pleadings is analogous to a general demurrer.” (Westly v. California Public Employees' Retirement System Bd. of Administration (2003) 105 Cal.App.4th 1095, 1114, as modified on denial of reh'g (Feb. 25, 2003).)

In Opposition, Seror argues that this Court “directed Plaintiff to file a formal motion to substitute the plaintiff.” (Oppo. at p. 1.) The Court’s ruling on January 14, 2021, to which the Court assumes Seror is referring, was a ruling on an Ex Parte Application filed by Sully for Dismissal for Failure to Amend. The Court granted the parties leave to file motions on this issue rather than decide the issue ex parte. Sully has accordingly filed the instant Motion to Dismiss. The Court’s January 14, 2021 ex parte order did not replace its own April 22, 2019 order, which granted Sully’s Motion for Judgment on the Pleadings with leave to amend such that Seror may be named as Plaintiff.

In his Supplemental Opposition, Seror makes various arguments regarding bankruptcy and estoppel and concludes that the “case must proceed to trial on the merits.” (Suppl. Oppo. at pp. 1-3.) However, these arguments fail to the correct the primary issue in this Motion, which is the fact that Seror has not been named as a plaintiff in this action and may not proceed as a plaintiff in this action per this Court’s April 22, 2019 requiring Plaintiffs to file an amended complaint naming Seror as a plaintiff.

Accordingly, unless Plaintiffs file an amended complaint prior to the hearing on this Motion, the Court will GRANT Sully’s Motion for Dismissal of Action. The Third Amended Complaint against Sully will be DISMISSED WITH PREJUDICE.

DATED: March 1, 2021

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

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