On 06/16/2016 JEFFREY C BERSIN filed an Other - Injunction lawsuit against GREENCOURT EAST HOMEOWNERS ASSOCIATION I. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Disposed - Dismissed.
Disposed - Dismissed
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
BERSIN JEFFREY C.
DOES 1 THROUGH 25
GREENCOURT EAST HOMEOWNERS ASSOCIATION
BERSIN JEFFREY C. ESQ.
BERSIN JEFFREY CARSON
MAZAREI MAZYAR HASSAN
BABAIAN PIERRO H.
SAFARIAN AROUTUN HARRY
12/28/2017: OPPOSITION BY PLAINTIFF TO DEMURRER BY DEFENDANT TO SECOND AMENDED COMPLAINT; ETC.
2/6/2018: VERIFIED ANSWER TO VERIFIED SECOND AMENDED COMPLAINT
11/7/2018: Notice of Ruling
11/27/2018: Notice of Posting of Jury Fees
4/2/2019: Minute Order
11/9/2016: PROOF OF SERVICE SUMMONS
4/10/2017: REQUEST FOR ENTRY OF DELAULT/ COURT JUDGMENT
5/5/2017: OPPOSITION BY PLAINTIFF TO EX PARTE APPLICATION FOR RELIEF FROM DEFAULT, ETC.; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT
5/25/2017: Minute Order
6/9/2017: REQUEST FOR JUDICIAL NOTICE BY PLAINTIFF
6/15/2017: DEFENDANT GREEN COURT EAST HOMEOWNERS ASSOCIATION, INC.'S REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO SET ASIDE ENTRY OF DEFAULT AND; ETC.
6/23/2017: NOTICE OF RULING REGARDING: (1) DEFENDANT GREEN COURT EAST HOMEOWNERS ASSOCIATION, INC.'S MOTION TO SET ASIDE ENTRY OF DEFAULT AND TO QUASH SERVICE OF SUMMONS, AND (2) CASE MANAGEMENT CONFERENCE
Notice of Ruling; Filed by Greencourt East Homeowners Association, (Defendant)Read MoreRead Less
at 08:45 AM in Department 39; Order to Show Cause Re: Dismissal (After Settlement Pursuant to CRC 3.1385) - HeldRead MoreRead Less
Minute Order ( (Order to Show Cause Re: Dismissal After Settlement Pursuant t...)); Filed by ClerkRead MoreRead Less
at 09:30 AM in Department 39; Non-Jury Trial - Not Held - Vacated by CourtRead MoreRead Less
at 09:00 AM in Department 39; Final Status Conference - HeldRead MoreRead Less
Minute Order ( (Final Status Conference)); Filed by ClerkRead MoreRead Less
Notice of Ruling; Filed by Jeffrey C. Bersin (Plaintiff)Read MoreRead Less
Notice of Association of Counsel for Plaintiff; Filed by Jeffrey Carson Bersin (Attorney)Read MoreRead Less
Answer (to Third Amended Complaint); Filed by Greencourt East Homeowners Association, (Defendant)Read MoreRead Less
Notice of Posting of Jury Fees; Filed by Greencourt East Homeowners Association, (Defendant)Read MoreRead Less
Case Management Statement; Filed by Jeffrey C. Bersin (Plaintiff)Read MoreRead Less
OSC-Failure to File Proof of Serv; Filed by ClerkRead MoreRead Less
ORDER TO SHOW CAUSE HEARINGRead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Complaint; Filed by Jeffrey C. Bersin (Plaintiff)Read MoreRead Less
Summons; Filed by Plaintiff/PetitionerRead MoreRead Less
SUMMONSRead MoreRead Less
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND TO ENFORCE ORDER OF THE LOS ANGELES DEPARTMENT OF BUILDING & SAFETY REQUIRING DEFENDANT TO COMPLETE ITS PERMIT TO REBUILD CONDOMINIUM OF PLAINTIFFRead MoreRead Less
at 08:32 AM in Department Legacy; Unknown eventRead MoreRead Less
Case Number: BC624166 Hearing Date: October 14, 2020 Dept: 39
The court DENIES the motion and awards attorney’s fees in the amount of $3,000.
Defendant to give notice.
This action arises from Defendant Green Court East Homeowners Association, Inc.’s (“Green Court”) alleged failure to rebuild Plaintiff Jeffrey C. Bersin’s (“Bersin”) condominium unit, which is located at 1888 Greenfield Avenue, Unit 101, Los Angeles, California. According to Plaintiff, Green Court agreed to rebuild his unit after performing mold remediation, but failed to meet its obligations as required by the Declaration of Covenants, Conditions & Restrictions (“CC&R”) that was recorded in the Office of the County Recorder of Los Angeles County on July 8, 1974, in Book M4730, beginning at page 705.
Plaintiff filed the Third Amended Complaint (“TAC”) on November 7, 2018, alleging nine causes of action including the first, third, fifth, and seventh causes of action for injunctive relief; the second, fourth, sixth, and eighth causes of action for declaratory relief; and the ninth cause of action to specifically enforce the Order by the Los Angeles Department of Building and Safety. On April 2, 2019, Plaintiff filed a request for dismissal and the court ordered the TAC dismissed without prejudice, while retaining jurisdiction to make orders to enforce any and all terms of settlement, including judgment, pursuant to Code of Civil Procedure, section 664.6.
Plaintiff now moves for the court to enforce the terms of the Settlement Agreement. Defendant opposes the motion. All subsequent statutory references will be to the Code of Civil Procedure unless otherwise specified.
This motion came to hearing on July 28, 2020, at which time the court ordered the parties to meet and confer regarding the building permits that needed to be obtained for each party to perform its respective obligations under the Settlement Agreement and the party that will be obtaining the particular permits. The court further ordered that any building permits that were to be obtained were to list the property owner of the relevant portion of the property that was the subject of the work that was to be performed.
The parties submitted a joint report on October 5, 2020, stating they had met and conferred but were unable to reach agreement. This matter now comes again to hearing.
Given the parties’ inability to reach consensus, the court rules on the motion.
Plaintiff’s Objection to the Declaration of John H. Horwitz (“Horwitz Decl.”)
Objection 1: Sustained. Lack of personal knowledge.
Objection 2: Overruled. Party admission. Evid. Code § 1220; see Resp. to Obj. to Horwitz Decl. Ex. 5, at 1.
Objection 3: Overruled in-part and sustained in-part. Sustained as to the statement “Because of this and as a general precaution” for lack of personal knowledge. The objection is otherwise overruled. Declarant can establish personal knowledge that Apex requested another walkthrough.
Objection 4: Overruled in-part and sustained in-part. Overruled as to whether Bersin sent a letter to Apex and whether Apex and Bersin have obtained building permits. Declarant can establish knowledge as to whether Defendant’s contractor is willing to obtain the requested building permits and whether Plaintiff has obtained the permits. Sustained as to the statements regarding whether the permits are within the scope of Bersin’s scope of work under the Settlement Agreement.
Objection 5: Sustained. The statement goes to the truth of Apex’s alleged assertion, namely whether Apex would be willing to proceed with its work and constitutes inadmissible hearsay.
Objection 6: Overruled in-part and sustained in part. Sustained as to the first sentence for lack of foundation and to the statement “Inspector Cirstoiu clearly indicated that the Correction Notice was adverse to Bersin because he needed to obtain remodel permits” as inadmissible hearsay. The objection otherwise is overruled as to whether the statements were made. These statements are not admissible for the truth of the alleged statements by the building inspector.
Objection 7: Sustained. Lack of foundation or personal knowledge.
Plaintiff’s Objection to the Declaration of Stephen Robles (“Robles Decl.”)
Objection 1: Overruled. Declarant avers that he is the project manager for Apex and establishes personal knowledge. The statement is asserted as evidence that Plaintiff demanded that Apex obtain a permit for the interior remodeling of the kitchen and bathroom of the residence. This letter appears to have been attached as Exhibit B to Plaintiff’s declaration in support of the motion. The contents of the document are, thus, a party admission. Evid. Code § 1220.
Objection 2: Overruled. The statements are admissible as evidence Cirstoiu made the statements, but are not admitted for the truth of the assertions.
Objection 3: Sustained. Argumentative and speculative.
A. Legal Standard
Pursuant to Code of Civil Procedure section 664.6, “if parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” Code Civ. Proc. § 664.6. The court must determine whether the settlement agreement is valid and binding. Kohn v. Jaymar-Ruby, 23 Cal. App. 4th 1530, 1533 (1994).
“In order to be enforceable pursuant to the summary procedures of section 664.6, a settlement agreement must either be entered into orally before a court … or must be in writing and signed by the parties.” Weddington Prods., Inc. v. Flick, 60 Cal. App. 4th 793, 810 (1998). Courts will not set aside a valid settlement agreement absent fraud, undue influence, or excusable neglect. Zamora v. Clayborn Contracting Group, Inc., 28 Cal. 4th 249, 260 (2002); see also Hulsey v. Elsinore Parachute Center, 168 Cal. App. 3d 333, 339 (1985); Fraters Glass & Paint Co. v. Southwestern Const. Co., 107 Cal. App. 1, 6 (1930).
B. Settlement Agreement
Plaintiff contends Paragraph 5 of the Settlement Agreement obligates Defendant to hire a licensed, insured contractor to make repairs to, among other things, Common Area framing, Common Area rough plumbing, Common Area electrical work, and Common Area mechanical work before he is required to proceed with his portion of the repairs. Mot. at 12. Plaintiff further contends Defendant is required to obtain all necessary permits to complete this work in Defendant’s name. Id.
Defendant responds it is only responsible for repairing the water damaged wall and any damage within the wall as part of the Common Area repairs required by the Settlement Agreement, and that it cannot proceed with its obligations until Plaintiff obtains building permits for the “kitchen and bathroom” remodeling work inside his unit. Opp. at 5.
Paragraph 5 of the Settlement Agreement establishes Defendant’s repair responsibilities under the agreement and states:
5. RECONSTRUCTION RESPONSIBILITY OF GREEN COURT. Green Court is responsible for making any and all repairs to the Common Area perimeter of the Bersin Property (including Common Area perimeter walls, Common Area perimeter ceilings, and Common Area perimeter floors) and to Common Area interior weight-bearing walls, which includes Common Area framing, Common Area rough plumbing, Common Area rough electrical, Common Area fire suppression, Common Area seismic, and any other element of the Common Area within the perimeter surrounding plaintiff’s unit or within interior weight-bearing walls, excluding insulation and drywall, if required by the Los Angeles Department of Building & Safety, or if recommended by Green Court’s licensed contractor. Defendant is responsible for effectuating any maintenance or repairs designated as the HOA’s responsibilities pursuant to the currently recorded CC&Rs, if and to the extent they are enforceable. Irrespective of the previous sentence, it is expressly understood and agreed by the Parties that: (a) Green Court will perform all of the work described above in this paragraph; (b) Green Court will pay for all of the work described above in this paragraph; (c) Green Court will provide Plaintiff with final lien releases from all contractors and materialmen providing labor and/or materials in connection with the work described above in this paragraph (as provided in paragraph 16 below); (d) Green Court will not bill plaintiff for any portion of the work described above in this paragraph; and (e) Green Court will not levy any Special Assessment against Plaintiff or the Bersin Property in connection with the work described above in this paragraph.
Horwitz Decl. Ex 1, at 5, ¶ 5.
The 2016 Amended and Restated CC&Rs (the “Amended CC&Rs”) define “Common Area” to include: “bearing walls, columns, vertical supports, floors, roofs, foundations, beams, patio walls, fences, pipes, ducts, conduits, wires and other utility installations, wherever located, except the outlets thereof when located within the Unit” as well as “any common utility lines and fixtures, except communication lines.” Horwitz Decl. Ex. 2, at 11, § 2.8.
Paragraph 4 of the Settlement Agreement establishes Plaintiff’s repair responsibilities under the agreement and states:
4. RECONSTRUCTION RESPONSIBILITIES OF BERSIN. With the settlement proceeds, Bersin is responsible for making any and all repairs to insulation, drywall, and all finish fixtures and finishes within the Bersin Property, including but not limited to: paint, stain, wallpaper, linoleum, indoor and outdoor carpet, hardwood floors, ceramic tile, marble tile, acoustic tile, granite, kitchen and bathroom cabinets, kitchen and bathroom counter tops and back splash, kitchen appliances, laundry appliances, kitchen and bathroom sinks, bathtub and toilet, … bathroom and closet shelves, … finish electrical fixtures …, outlets, switches, and dimmers, finish plumbing fixtures, … and low-voltage wiring/outlets for telephone, cable TV, and IR repeater for audio/video. Plaintiff is responsible for effectuating any maintenance or repairs designated as the owner’s responsibilities pursuant to the currently recorded CC&Rs, if and to the extent they are enforceable.
Horwitz Decl. Ex. 1, at 4, ¶ 4.
As for the necessary permits, the Settlement Agreement provides that “[e]ach party shall obtain all construction permits for its reconstruction work, as described in paragraphs 4 and 5 above, as are legally required.” Horwitz Decl. Ex. 1, at 5, ¶ 7.
Based on the language of the Settlement Agreement and the Amended CC&Rs, the rough plumbing and electrical are included within the scope of the Common Area of the building, and Defendant is obligated to repair and obtain all legally required construction permits for this work. See Horwitz Decl. Ex. 1, at 5, ¶ 5; id., Ex. 2, at 11, § 2.8. Plaintiff, in turn, is responsible for repairing and obtaining all legally required construction permits for the insulation, drywall, and all finish fixtures and finishes within his unit, the Bersin Property, including repairs to the kitchen and bathroom floors, finish electrical fixtures, and finish plumbing fixtures. Horwitz Decl. Ex. 1, at 4, ¶ 4.
The parties’ communications indicate that Los Angeles Department of Building and Safety (“LADBS”) Inspector Sorin Cirstoiu (“Cirstoiu”) stated at the pre-inspection meeting that the parties needed to obtain building permits including a kitchen remodeling permit, a bathroom remodeling permit, and mechanical, plumbing, and electrical permits for the kitchen and bathroom remodeling before work could be started on the property. Declaration of Jeffrey C. Bersin (“Bersin Decl.”) Ex. B, at 1; Ex. C, at 1; Ex. D. Based on each party’s responsibilities under the Settlement Agreement, Defendant is obligated to repair and obtain building permits to repair the rough plumbing and electrical within the walls of the Common Area of the property, while Plaintiff is obligated to repair and obtain building permits for the interior, fixtures, and finish fixtures for the kitchen and bathroom within the Bersin Property.
Plaintiff contends he cannot begin his repairs “to insulation, drywall, and all finish fixtures and finishes within the Bersin Property” before the repair work to the Common Areas is finished and has been approved by the LADBS. Mot. at 14-15. Plaintiff, thus, argues Defendant is responsible for obtaining all permits and for the delay in the repairs. Plaintiff, however, does not cite to any provision of the Settlement Agreement that requires Defendant to secure permits to the Bersin Property or provide any explanation for why Defendant’s work must be finished before he can obtain the required permits for the kitchen and bathroom remodeling identified by Building Inspector Cirstoiu.
Plaintiff argues LADBS notified the initial contractor, Apex, of its obligation to obtain the required permits. Mot. at 15, Reply at 2. The submitted evidence, however, only demonstrates LADBS stated that all permits were necessary before the scope of work could be approved. LADBS did not and cannot make any finding or determination as to which party is legally obligated to obtain particular permits under the Settlement Agreement. See Bersin Decl. Ex. D. Thus, Plaintiff’s submitted evidence is insufficient to establish Defendant bears the responsibility for obtaining all necessary building permits identified by LADBS.
Defendant, in turn, contends it has met its obligations under the Settlement Agreement by retaining and paying structural engineer Steve Ekmekji to prepare plans for the repair for the structural wall and by hiring Apex Contracting & Restoration (“Apex”) to obtain the building permit and to perform the work to the Common Area. Opp. at 6. The building permit Defendant obtained, however, was limited to “REPAIR WATER DAMAGED WALL AT UNIT #101” and incorrectly listed Plaintiff as the owner of the portion of the property where the work was to be performed. Bersin Decl. Ex. A. The LADBS Correction Notice indicates the parties were ordered to obtain “required Mechanical, Plumbing and Electrical permits for kitchen and bathroom remodeling.” Bersin Decl. Ex. D. Under the Settlement Agreement and Amended CC&Rs, Defendant is required to obtain any necessary permits for rough plumbing and electrical work to the Common Area in its own name. See Horwitz Decl. Ex. 1, at 5, ¶ 5; Ex. 2, at 11, § 2.8.
Stephen Robles, who is the project manager for Apex, attests that Apex will not know the full extent of electrical or plumbing work, if any, that may be necessary until the work is underway. Robles Decl. Ex. 4. Defendant, however, has not presented any evidence to establish that the building permit it previously obtained in Plaintiff’s name was sufficient to encompass any rough plumbing or rough electrical work that may need to be performed in connection with the wall repairs to the Common Area. The LADBS Correction Notice and the statements by Building Inspector Cirstoiu (that were identified by both parties) suggests it was not. See Bersin Decl. Ex. B, at 1; Ex. C, at 1; Ex. D.
D. The Parties’ Meet and Confer After the July 28, 2020 Hearing
After meeting and conferring, Plaintiff’s position remains that Defendant should be ordered to secure all permits demanded by LADBS to complete the rough work on the Common Area first, after which Plaintiff and/or his contractor will cooperate with Defendant’s contractor either to obtain new permits for Plaintiff’s scope of work or transfer the existing permits. 10/5/20 Joint State. 2. Plaintiff continues to argue that LADBS’ January 16, 2020 correction notice instructs Defendant’s then contractor, Apex, to obtain required building, mechanical, plumbing, and electrical permits for the kitchen and bathroom remodeling work to be done inside the Bersin Property regardless of the terms of the Settlement Agreement. Id. The court disagrees for the reasons set forth above.
Defendant also states its contractor Apex has now declined to be involved, since it became concerned about Plaintiff’s intervention with the LABDS. 10/5/20 Joint State. 3. Defendant further states that two other contractors have also declined to accept the work if it includes the condition that they will have to obtain permits for all of the work and then rely on Plaintiff or his yet-to-be-designated contractor to accept a transfer of responsibility for completion of the work. Id. According to Defendant, it is also not willing to apply for the permits itself because Defendant is concerned its scope of work would require the walls to be left open, which would place Defendant at risk of liability for any injuries that could occur to Plaintiff or any third party who might enter the open walls during the intervening time. Id.
Defendant proposes each party retain contractors for their respective scopes of work and then coordinate applications for permits, each in the name of the respective party. 10/5/20 Joint State. 3. Defendant states it has obtained a contractor who is willing to perform the Common Area repairs on this basis, subject to a site inspection and an agreement on an estimate. Id. Plaintiff responds that Defendant’s proposal might be acceptable if the LADBS is willing to issue simultaneous permits, but that Plaintiff needs to confirm whether this is possible. Id. at 4. According to Plaintiff, the appropriate department has not provided confirmation of whether this is possible, as of the date of the joint statement. Id.
Plaintiff, however, does not attest to any efforts before or after the July 28 hearing to confirm this information or present any argument as to why he believes LADBS would not be willing to issue permits to each side’s contractors for the scope of their respective work. Plaintiff, similarly, does not attest to any efforts to retain a contractor to complete his portion of the work.
In sum, the court finds Defendant did not breach the Settlement Agreement and, therefore, DENIES the motion.
E. Prevailing Party and Attorney’s Fees
Each party requests attorney’s fees as the prevailing party on the subject motion, pursuant to Paragraph 18 of the Settlement Agreement. Paragraph 18 of the Settlement Agreement states: “if an action or proceeding is required to enforce the terms of the settlement, the prevailing party shall be entitled to an award of all attorney’s fees and costs incurred in enforcing the settlement.” Horwitz Decl. Ex. 1, at p. 8, ¶ 18.
As the court denies the motion, Defendant is entitled to all attorney’s fees incurred in opposing the motion to enforce the settlement agreement. Defendant’s attorney attests to an hourly rate of $300 on this matter and to spending 8 hours reviewing documents, conducting research, conferring with clients, contractors and experts, and preparing the opposition and declaration for this opposition. Horwitz Decl. ¶ 18. Counsel further attests his partner, Russell Franklin, spent over 10.7 hours conducting file review, analyzing building permit issues and statutes, conferring with experts and consultants, and drafting the opposition to the motion. Id. at ¶ 19. Counsel further anticipates Franklin will spend an additional 3 hours preparing for and attending the hearing of the motion. Id.
The time requested by Defendant appears to include time spent on resolving the permitting issue, and not just the time spent on its opposition to the motion. Accordingly, the court awards attorney’s fees to reflect 10 hours of defense counsel’s time for a total of $3,000. Plaintiff is ordered to pay the fees within 60 days of the court’s final ruling.
Case Number: BC624166 Hearing Date: July 28, 2020 Dept: 39
Jeffrey C. Bersin v. Greencourt East Homeowners Association, Inc., et al., BC624166
Plaintiff Jeffrey Bersin's Motion to Enforce Settlement: the motion is continued to October 14, 2020 at 9:00 a.m..
The parties are ORDERED to meet and confer regarding what building permits need to be obtained for each party to be able to meet its respective responsibilities under the subject Settlement Agreement, and which party will obtain which building permits. Any building permits that are obtained are to list the proper owner of the relevant portion of the specific property that is the subject of the work that is to be performed.
The parties are ORDERED to meet and confer regarding what building permits need to be obtained for each party to be able to meet its respective responsibilities under the subject Settlement Agreement, and which party will obtain which building permits. Any building permits that are obtained are to list the proper owner of the relevant portion of the specific property that is the subject of the work that is to be performed.The requested information is to be submitted in the form of a joint report to the court, not to exceed five pages, and is to be electronically filed by October 5, 2020.
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