This case was last updated from Los Angeles County Superior Courts on 01/13/2021 at 18:08:53 (UTC).

JOE KLEIN ET AL VS ALBERT MALKA ET AL

Case Summary

On 01/08/2013 JOE KLEIN filed a Contract - Other Contract lawsuit against ALBERT MALKA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are GREGORY KEOSIAN, MICHELLE R. ROSENBLATT, MARY ANN MURPHY and EDWARD B. MORETON. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8733

  • Filing Date:

    01/08/2013

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

GREGORY KEOSIAN

MICHELLE R. ROSENBLATT

MARY ANN MURPHY

EDWARD B. MORETON

 

Party Details

Plaintiffs and Cross Defendants

KLEIN JOE

MJK 18 LLC

Defendants and Cross Plaintiffs

ADY PROPERTY LLC

DOES 1 THROUGH 100

MALKA ALBERT

SAFYARI BEN

SAYFARI BEN

Defendant and Respondent

DOES 1 THROUGH 100

Not Classified By Court

SAFYARI ZAHERA N.

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorneys

LAVAEE LAW GROUP

LAW OFFICES OF RODNEY T. LEWIN APC

DAVIDOVICH NIV VLADIMIR

Defendant and Respondent Attorneys

ABRAMS HERBERT ESQ.

DANESHRAD JOSEPH ESQ.

FREUND BENNI H. ESQ.

MORRIS STEVEN A. ESQ.

DANESHRAD JOSEPH

Defendant and Cross Plaintiff Attorneys

DANESHRAD JOSEPH ESQ.

MORRIS STEVEN A. ESQ.

 

Court Documents

Objection - OBJECTION TO PLAINTIFF JOE KLEIN'S PROPOSED ORDER RE: SALE OF DWELLING

11/20/2020: Objection - OBJECTION TO PLAINTIFF JOE KLEIN'S PROPOSED ORDER RE: SALE OF DWELLING

OPPOSITION TO EX PARTE TO CONTINUE HEARING DATE; OR IN THE ALTERNATIVE TO EXTEND DEADLINE TO OPPOSE JUDGMENT CREDITOR JOE KLEIN'S APPLICATION FOR SALE OF DWELLING PURSUANT TO CCP 704.750(A); ETC

2/8/2018: OPPOSITION TO EX PARTE TO CONTINUE HEARING DATE; OR IN THE ALTERNATIVE TO EXTEND DEADLINE TO OPPOSE JUDGMENT CREDITOR JOE KLEIN'S APPLICATION FOR SALE OF DWELLING PURSUANT TO CCP 704.750(A); ETC

REQUEST TO TAKE JUDICIAL NOTICE IN SUPPORT OF DEFENDANT, BEN B. SAFYARI?S OPPOSITION TO PLAINTIFFS' OSC RE: APPLICATION FOR SALE OF DWELLING

3/29/2018: REQUEST TO TAKE JUDICIAL NOTICE IN SUPPORT OF DEFENDANT, BEN B. SAFYARI?S OPPOSITION TO PLAINTIFFS' OSC RE: APPLICATION FOR SALE OF DWELLING

SUPPLEMENTAL DECLARATION OF DEFENDANT, BEN B. SAFYARI, IN FURTHER OPPOSITION TO PLAINTIFFS OSC RE SALE OF THE DWELLING

4/3/2018: SUPPLEMENTAL DECLARATION OF DEFENDANT, BEN B. SAFYARI, IN FURTHER OPPOSITION TO PLAINTIFFS OSC RE SALE OF THE DWELLING

NOTICE OF CASE MANAGEMENT CONFERENCE

4/2/2013: NOTICE OF CASE MANAGEMENT CONFERENCE

NOTICE RE: CONTINIJANCE OF HEARING

2/7/2014: NOTICE RE: CONTINIJANCE OF HEARING

NOTICE REGARDING CHANGE IN HEARING DATE FOR DEFENDANT BEN SAFYARI'S MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT

5/8/2014: NOTICE REGARDING CHANGE IN HEARING DATE FOR DEFENDANT BEN SAFYARI'S MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT

BEN SAFYARI'S OPPOSITION TO JOE KLEIN AND MJK 18, LLC'S DEMURRER TO BEN SAFYARI'S FIRST AMENDED CROSS-COMPLAINT

2/9/2015: BEN SAFYARI'S OPPOSITION TO JOE KLEIN AND MJK 18, LLC'S DEMURRER TO BEN SAFYARI'S FIRST AMENDED CROSS-COMPLAINT

DEFENDANT JOSEPH DANESHRAD'S NOTICE OF MOTION AND MOTION FOR AN ORDER ESTABLISHING ADMISSIONS AND REQUEST FOR MONETARY SANCTIONS OF $4,380.00 AGAINST DEFENDANT ALBERT MALKA AND HIS ATTORNEY OF RECORD,

6/17/2015: DEFENDANT JOSEPH DANESHRAD'S NOTICE OF MOTION AND MOTION FOR AN ORDER ESTABLISHING ADMISSIONS AND REQUEST FOR MONETARY SANCTIONS OF $4,380.00 AGAINST DEFENDANT ALBERT MALKA AND HIS ATTORNEY OF RECORD,

DEFENDANT JOSEPH DANESHRAD'S NOTICE OF MOTION AND MOTION FOR AN ORDER ESTABLISHING ADMISSIONS AND REQUEST FOR MONETARY SANCTIONS OF $4,380.00 AGAINST DEFENDANT ADY PROPERTY, LLC AND ITS ATTORNEY OF RE

6/17/2015: DEFENDANT JOSEPH DANESHRAD'S NOTICE OF MOTION AND MOTION FOR AN ORDER ESTABLISHING ADMISSIONS AND REQUEST FOR MONETARY SANCTIONS OF $4,380.00 AGAINST DEFENDANT ADY PROPERTY, LLC AND ITS ATTORNEY OF RE

BEN SAFYARI'S THIRD AMENDED CROSS-COMPLAINT FOR: 1. FRAUD BY FALSE PROMISE; 2. CONSTRUCTIVE FRAUD; 3. BREACH OF FIDUCIARY DUTY; 4. DECLARATORY RELIEF; 5. QUIET TITLE

7/23/2015: BEN SAFYARI'S THIRD AMENDED CROSS-COMPLAINT FOR: 1. FRAUD BY FALSE PROMISE; 2. CONSTRUCTIVE FRAUD; 3. BREACH OF FIDUCIARY DUTY; 4. DECLARATORY RELIEF; 5. QUIET TITLE

PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE

8/3/2016: PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE

ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

12/5/2016: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

Minute Order -

12/16/2016: Minute Order -

NOTICE OF ERRA TA RE EXHIBIT "A" TO NOTICE OF MOTION AND MOTION TO AMEND JUDGMENT BY PLAINTIFF JOE KLEIN TO ADD BEN SAFYARI, TRUSTEE OF TILE SAFYARI FAMILY TRUST DATED JUNE 6, 2006 ET.AL;

5/2/2017: NOTICE OF ERRA TA RE EXHIBIT "A" TO NOTICE OF MOTION AND MOTION TO AMEND JUDGMENT BY PLAINTIFF JOE KLEIN TO ADD BEN SAFYARI, TRUSTEE OF TILE SAFYARI FAMILY TRUST DATED JUNE 6, 2006 ET.AL;

APPLICATION AND ORDER FOR APPEARANCE AND EXAMINATION

5/19/2017: APPLICATION AND ORDER FOR APPEARANCE AND EXAMINATION

DEFENDANT BEN SAFYARI'S REPLY IN SUPPORT OF MOTION TO STAY ENFORCEMENT OF JUDGMENT; ETC.

10/19/2017: DEFENDANT BEN SAFYARI'S REPLY IN SUPPORT OF MOTION TO STAY ENFORCEMENT OF JUDGMENT; ETC.

NOTICE OF SURRENDER BY JUDGMENT DEBTOR BEN SAFYARI AND THIRD PARTY NUSHIN SAFYART IN RESPONSE TO BENCH WARRANT ISSUED 10/27/17; AND; ETC.

12/11/2017: NOTICE OF SURRENDER BY JUDGMENT DEBTOR BEN SAFYARI AND THIRD PARTY NUSHIN SAFYART IN RESPONSE TO BENCH WARRANT ISSUED 10/27/17; AND; ETC.

630 More Documents Available

 

Docket Entries

  • 03/01/2021
  • Hearing03/01/2021 at 10:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Reconsideration

    Read MoreRead Less
  • 02/23/2021
  • Hearing02/23/2021 at 10:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Reconsideration

    Read MoreRead Less
  • 01/21/2021
  • Hearing01/21/2021 at 10:00 AM in Department 61 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion - Other Renewed Motion for Additional Offset Post-Appeal

    Read MoreRead Less
  • 01/07/2021
  • DocketOpposition (PLAINTIFF JOE KLEIN?S OPPOSITION TO DEFENDANT?S FOURTH MOTION FOR OFFSET; DECLARATION OF NIV V. DAVIDOVICH); Filed by Joe Klein (Plaintiff)

    Read MoreRead Less
  • 01/07/2021
  • DocketRequest for Judicial Notice; Filed by Joe Klein (Plaintiff)

    Read MoreRead Less
  • 01/07/2021
  • DocketObjection (EVIDENTIARY OBJECTIONS TO THE DECLARATION OF BEN SAFYARI); Filed by Joe Klein (Plaintiff)

    Read MoreRead Less
  • 12/18/2020
  • DocketMotion re: (for Addition Offset Post Remittitur); Filed by Ben Sayfari (Defendant)

    Read MoreRead Less
  • 12/18/2020
  • DocketDeclaration (of Ben Safyari ISO Motion for Additional Offset); Filed by Ben Sayfari (Defendant)

    Read MoreRead Less
  • 12/18/2020
  • DocketDeclaration (of Joseph Daneshrad ISO Motion for Additional Offset); Filed by Ben Sayfari (Defendant)

    Read MoreRead Less
  • 12/10/2020
  • DocketAppeal - Remittitur - Affirmed (B280661 & B282572); Filed by Clerk

    Read MoreRead Less
1,283 More Docket Entries
  • 01/22/2013
  • DocketNotice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 01/22/2013
  • DocketORDER TO SHOW CAUSE HEARING

    Read MoreRead Less
  • 01/22/2013
  • DocketORDER TO SHOW CAUSE HEARING

    Read MoreRead Less
  • 01/22/2013
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 01/22/2013
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

    Read MoreRead Less
  • 01/22/2013
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 01/08/2013
  • DocketComplaint; Filed by null

    Read MoreRead Less
  • 01/08/2013
  • DocketSUMMONS

    Read MoreRead Less
  • 01/08/2013
  • DocketCOMPLAINT FOR: 1. FRAUD; ETC

    Read MoreRead Less
  • 08/01/1961
  • DocketStatement of the Case; Filed by Plaintiff/Petitioner

    Read MoreRead Less

Tentative Rulings

Case Number: BC498733    Hearing Date: July 07, 2020    Dept: 61

Defendant Ben Safyari’s Motion for Additional Offset is DENIED.

  1. MOTION FOR OFFSET

“Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, or to one or more other co-obligors mutually subject to contribution rights, it shall have the following effect: (a) It shall not discharge any other such party from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it, whichever is the greater.” (Code Civ. Proc., § 877.)

“The offset provided for in section 877 assures that a plaintiff will not be enriched unjustly by a double recovery, collecting part of his total claim from one joint tortfeasor and all of his claim from another.” (Reed v. Wilson (1999) 73 Cal.App.4th 439, 444.) It is “proper to exclude evidence of the pretrial settlement by one joint tortfeasor from the jury's consideration, leaving it to the court to apply Code of Civil Procedure section 877 to reduce the verdict.” (Knox v. County of Los Angeles (“Knox”) (1980) 109 Cal.App.3d 825, 834–35.)

Section 877 “does not require any defendant to prove that settling codefendants were in fact liable, only that they were ‘claimed to be liable’ for the same tort.” (Knox, supra, 109 Cal.App.3d at p. 833.) In Know, the Complaint alleges that the settling codefendant engaged in a conspiracy and joint venture with nonsettling defendants and that they were agents of the nonsettling defendants relating to the allegations at hand. (Id. at pp. 832–833.)

The burden of establishing the value of a settlement is properly placed on plaintiffs. (See Garcia v. Duro Dyne Corp. (2007) 156 Cal.App.4th 92, 106.) “[T]he amount of the setoff is, in the absence of a stipulation, ‘the amount of the consideration paid for [the release or dismissal].’ But the amount of consideration paid within the meaning of section 877, subdivision (a) is not necessarily the amount of money paid. Often ‘the amount of the offset is clouded by injection of noncash consideration into the settlement.’ [Citations.] ‘In a situation where the cash amount of the settlement does not dictate the amount of the offset, the settling parties must include an allocation or a valuation in their agreement.’ [Citation.]” (Franklin Mint Co. v. Superior Court (2005) 130 Cal.App.4th 1550, 1557.)

This court on December 6, 2016, granted in part Safyari’s motion for an offset. The court declined to grant Safyari a $757,000 offset based on value that Klein purportedly received from the settlement for “Klein’s pre-joint venture investment expenses.” (12/6/2016 Order at p. 10.) Safyari justified the value of the claimed offset by citing the “final waterfall repayment of the funds from the sale of the Multiview properties, which are split 50/50 between ADY and Klein ‘as a return of their capital investment in the project and the Property and a return thereon.’” (Ibid.) The court, however, declined to award this offset, as it was grounded on “anticipated future recovery,” particularly the “future sale of the property, plus four separate repayments through the ‘waterfall’ before any funds would go to Klein to repay his capital investment.” (Id. at p. 11.) The court nonetheless “retain[ed] jurisdiction to further amend the Judgment upon sale of the properties.” (Id. at p. 11.)

Safyari now moves for a total of $428,000 in additional offsets, representing $127,000 in offsets purportedly resulting from Klein’s settlement with ADY and the sale of the properties since the court’s December 2016 order, and $301,000 in equitable offsets resulting from Klein’s purported refusal to honor the promissory notes that Safyari holds against him. (Motion at p. 6.)

The parties dispute whether this court has jurisdiction to order the requested offsets, based on the appeal that Safyari now seeks against the judgment he now seeks to amend. “[T]he 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.” (Code Civ. Proc. § 916, subd. (a).)

The purpose of the automatic stay provision of section 916, subdivision (a) is to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.

To accomplish this purpose, section 916, subdivision (a) stays all further trial court proceedings upon the matters embraced in or affected by the appeal. In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results. Whether a matter is ‘embraced’ in or ‘affected’ by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the ‘effectiveness' of the appeal. If so, the proceedings are stayed; if not, the proceedings are permitted.

The fact that the postjudgment or postorder proceeding may render the appeal moot is not, by itself, enough to establish that the proceeding affects the effectiveness of the appeal and should be stayed under section 916. Rather, something more is needed. For example, the trial court proceeding must directly or indirectly seek to enforce, vacate or modify [the] appealed judgment or order. Or the proceeding must substantially interfere with the appellate court's ability to conduct the appeal.

(Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189–90, internal quotation marks and citations omitted.)

Safyari argues that this court possesses jurisdiction to grant his offsets because the motion concerns a matter collateral to the judgment that does not compromise the effectiveness of the pending appeal, and alternatively because the present motion is in reality one to enforce the judgment, not alter it. (Motion at pp. 9–13.)

This court lacks jurisdiction to hear the motion, and both arguments fail. Safyari relies on cases holding that a court may rule on collateral matters, like attorney fees and costs, while an appeal is pending. (See Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368–69) But Safyari here does not seek a post-judgment award of fees, but rather to amend the judgment currently on appeal to reflect certain desired offsets. This is something that the court lacks jurisdiction to do. (See Laidlaw Waste Systems, Inc. v. Bay Cities Services, Inc. (1996) 43 Cal.App.4th 630, 641 [“After perfection of an appeal, the trial court may not vacate or amend a judgment or order valid on its face, or do any other act which would affect the rights of the parties or the condition of the subject matter.”] internal quotation marks omitted.) This court may not even “cure any purported defect in the judgment or order appealed from.” (Varian Medical Systems, Inc., supra, 35 Cal.4th at p. 197.) Although Safyari purports to rely upon this court’s order of December 2016 (entered before the appeal was filed) in which the court retained jurisdiction to hear further arguments as to offsets after the relevant properties were sold, the court expressly characterized its jurisdiction as being “to further amend the Judgment upon sale of the properties.” (12/6/2016 Order at p. 11, italics added.) The court previously recognized that the claimed offsets were amendments to the judgment, and the court may not amend the judgment that is currently on appeal, especially when the damage items to be off-set (such as the $300,000 promissory notes) are those very same items for which Safyari seeks relief on appeal.

Nor may Safyari characterize the present matter as one to enforce the judgment. The reason this matter concerns “enforcement” under Safyari’s argument is because the amount of the judgment determines the amount that Klein may seek to collect from Safyari in enforcement proceedings. (Motion at pp. 12–13.)[1] But it is generally true that substantive amendments to a judgment may mitigate a party’s ability to enforce it; that does not make proceedings to amend the judgment into enforcement proceedings.

Accordingly, Safyari’s Motion for Offsets is DENIED.


[1] Although an appellant may stay enforcement of a judgment on appeal by filing an undertaking (See Code Civ. Proc. § 917.1), Safyari represents that he cannot afford the requisite undertaking here. (Motion at p. 12.)