This case was last updated from Los Angeles County Superior Courts on 04/05/2019 at 22:23:29 (UTC).

LEE LIPSCOMB VS THOMAS GIRARDI ET AL

Case Summary

On 06/02/2014 LEE LIPSCOMB filed a Property - Other Real Property lawsuit against THOMAS GIRARDI. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ERNEST HIROSHIGE, VICTOR E. CHAVEZ and SAMANTHA JESSNER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7290

  • Filing Date:

    06/02/2014

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ERNEST HIROSHIGE

VICTOR E. CHAVEZ

SAMANTHA JESSNER

 

Party Details

Plaintiffs and Cross Defendants

LIPSCOMB LEE

DOES 51-70

LAURA LIPCOMB

LIPCOMB LAURA

Defendants and Cross Plaintiffs

1122 WILSHIRE PARTNERSHIP

1126 WILSHIRE PARTNERSHIP

DOES 1 THROUGH 50

G&L AVIATION

GIRARDI & KEESE

GIRARDI THOMAS

Defendant and Respondent

DOES 1 THROUGH 50

Attorney/Law Firm Details

Plaintiff Attorneys

LURIE ZEPEDA SCHMALZ & HOGAN A.P.C.

ZEPEDA ANDREW WILLIAM

Defendant and Respondent Attorneys

GIRARDI THOMAS V. ESQ.

FINNERTY ROBERT WILLIAM

BAKER ROBERT CRAIG

BAKER PHILLIP ALDEN

 

Court Documents

Minute Order

3/1/2019: Minute Order

DEFENDANTS THOMAS GIRARDI, G&L AVIATION, 1122 WILSHIRE PARTNERSHIP, 1126 WILSHIRE PARTNERSHIP, AND GIRARDI & KEESE'S OPPOSITION TO PLAINTIFF LEE LIPSCOMB'S MOTION IN LIMINE NO. 1 FOR DETERMINATION THA

9/27/2018: DEFENDANTS THOMAS GIRARDI, G&L AVIATION, 1122 WILSHIRE PARTNERSHIP, 1126 WILSHIRE PARTNERSHIP, AND GIRARDI & KEESE'S OPPOSITION TO PLAINTIFF LEE LIPSCOMB'S MOTION IN LIMINE NO. 1 FOR DETERMINATION THA

Reply

10/26/2018: Reply

Statement of the Case

11/8/2018: Statement of the Case

Minute Order

12/3/2018: Minute Order

SUMMONS

6/2/2014: SUMMONS

PROOF OF SERVICE OF SUMMONS

6/12/2014: PROOF OF SERVICE OF SUMMONS

STIPULATION AND [PROPOSED] PROTECTIVE ORDER

1/26/2015: STIPULATION AND [PROPOSED] PROTECTIVE ORDER

PLAINTIFF LEE LIPSCOMB'S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION PROPOUNDED BY PLAINTIFF LEE LIPSCOMB AND REQUESTED FOR MONETARY SANCTIONS IN THE AMOUNT OF $4

4/1/2015: PLAINTIFF LEE LIPSCOMB'S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION PROPOUNDED BY PLAINTIFF LEE LIPSCOMB AND REQUESTED FOR MONETARY SANCTIONS IN THE AMOUNT OF $4

DECLARATION OF MARINA R. PACHECO FILED IN SUPPORT OF DEFENDANT'S EX PARTE APPLICATION FOR AN ORDER SHORTENING THE TIME TO HEAR DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

8/19/2015: DECLARATION OF MARINA R. PACHECO FILED IN SUPPORT OF DEFENDANT'S EX PARTE APPLICATION FOR AN ORDER SHORTENING THE TIME TO HEAR DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

PLAINTIFF LEE LIPSCOMB'S EVIDENTIARY OBJECTIONS TO DECLARATIONS OF MARINA R. PACHECO IN SUPPORT OF DEFENDANTS' OPPOSITION TO: PLAINTIFF'S MOTION FOR: 1. ISSUE AND EVIDENCE SANCTIONS AGAINST GIRARDI &

10/5/2015: PLAINTIFF LEE LIPSCOMB'S EVIDENTIARY OBJECTIONS TO DECLARATIONS OF MARINA R. PACHECO IN SUPPORT OF DEFENDANTS' OPPOSITION TO: PLAINTIFF'S MOTION FOR: 1. ISSUE AND EVIDENCE SANCTIONS AGAINST GIRARDI &

NOTICE OF STATEMENT OF NON-OPPOSITION TO MOTION TO SEVER TRIAL OF EQUITABLE CLAIMS AND ETC.

11/23/2015: NOTICE OF STATEMENT OF NON-OPPOSITION TO MOTION TO SEVER TRIAL OF EQUITABLE CLAIMS AND ETC.

DEFENDANTS' RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION

1/26/2016: DEFENDANTS' RESPONSE TO PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION

DEFENDANTS AND CROSSCLAIMANTS' NOTICE OF LODGING DEPOSITION TRANSCRIPTS FOR TRIAL

3/9/2016: DEFENDANTS AND CROSSCLAIMANTS' NOTICE OF LODGING DEPOSITION TRANSCRIPTS FOR TRIAL

PLAINTIFF'S MOTION TO EXCLUDE CERTAIN NEWLY IDENTIFIED EXHIBITS TE 369 - 379, SUMMARIES THEREOF (TE 383 AND COURT'S EX. 1), CALCULATIONS BASED THEREON (TE 384) AND TESTIMONY BY ANY RETAINED EXPERTS RE

3/30/2016: PLAINTIFF'S MOTION TO EXCLUDE CERTAIN NEWLY IDENTIFIED EXHIBITS TE 369 - 379, SUMMARIES THEREOF (TE 383 AND COURT'S EX. 1), CALCULATIONS BASED THEREON (TE 384) AND TESTIMONY BY ANY RETAINED EXPERTS RE

PROOF OF SERVICE BY PERSONAL SERVICE RE: (1) NOTICE OF RULING RE PLAINTIFF LEE LIPSCOMB'S MOTION TO EXCLUDE CERTAIN NEWLY IDENTIFIED EXHIBITS TE 369 - 379, SUMMARIES THEREOF (TE 383 AND COURT'S EX. 1)

4/26/2016: PROOF OF SERVICE BY PERSONAL SERVICE RE: (1) NOTICE OF RULING RE PLAINTIFF LEE LIPSCOMB'S MOTION TO EXCLUDE CERTAIN NEWLY IDENTIFIED EXHIBITS TE 369 - 379, SUMMARIES THEREOF (TE 383 AND COURT'S EX. 1)

NOTICE OF AUTOMATIC STAY PENDING APPEAL

12/20/2016: NOTICE OF AUTOMATIC STAY PENDING APPEAL

Minute Order

1/3/2017: Minute Order

269 More Documents Available

 

Docket Entries

  • 03/01/2019
  • at 08:30 AM in Department 58; Status Conference - Held - Continued

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  • 03/01/2019
  • Minute Order ( (Status Conference)); Filed by Clerk

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  • 02/05/2019
  • at 08:30 AM in Department 58; Status Conference - Held - Continued

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  • 02/05/2019
  • Minute Order ( (Status Conference)); Filed by Clerk

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  • 01/28/2019
  • at 08:30 AM in Department 58; Hearing on Motion - Other (name extension) (Motion to Exclude Defendants' Expert Andrew Safir from Testifying at Trial and From Introducing Any of His Reports) - Not Held - Rescheduled by Party

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  • 01/22/2019
  • Notice (of Continued Hearing re Defendants' Motion to Exclude Expert Andrew Safir); Filed by Lee Lipscomb (Plaintiff)

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  • 01/17/2019
  • at 09:00 AM in Department 58; Jury Trial - Not Held - Advanced and Vacated

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  • 01/15/2019
  • Objection (to December 28, 2018 Statement of Decision); Filed by Lee Lipscomb (Plaintiff)

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  • 01/10/2019
  • Opposition (DEFENDANTS THOMAS GIRARDI, G&L AVIATION, 1122 WILSHIRE PARTNERSHIP, 1126 WILSHIRE PARTNERSHIP, AND GIRARDI & KEESE'S OPPOSITION TO PLAINTIF LEE LIPSCOMB'S MOTION TO EXCLUDE DEFENDANTS' EXPERT); Filed by Thomas Girardi (Defendant); G&L Aviation (Defendant); 1122 Wilshire Partnership (Defendant) et al.

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  • 01/08/2019
  • Notice (of Further Status Conference); Filed by Lee Lipscomb (Plaintiff)

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547 More Docket Entries
  • 06/12/2014
  • Proof-Service/Summons; Filed by Lee Lipscomb (Plaintiff)

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  • 06/12/2014
  • Proof-Service/Summons; Filed by Plaintiff/Petitioner

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  • 06/12/2014
  • Proof-Service/Summons; Filed by Lee Lipscomb (Plaintiff)

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  • 06/12/2014
  • PROOF OF SERVICE OF SUMMONS

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  • 06/12/2014
  • Proof-Service/Summons; Filed by Lee Lipscomb (Plaintiff)

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  • 06/05/2014
  • NOTICE OF PENDENCY OF ACTION RE: REAL PROPERTY LOCATED AT 1122 WILSHIRE BOULEVARD, LOS ANGELES, CALIFORNIA 90017

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  • 06/05/2014
  • Notice; Filed by Plaintiff/Petitioner

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  • 06/02/2014
  • Complaint; Filed by null

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  • 06/02/2014
  • SUMMONS

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  • 06/02/2014
  • COMPLAINT FOR: 1. PARTITION; ETC

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Tentative Rulings

Case Number: BC547290    Hearing Date: December 16, 2020    Dept: 58

Judge John P. Doyle

Department 58


Hearing Date: December 16, 2020

Case Name: Lipscomb v. Girardi, et al.

Case No.: BC547290

Matter: Motion for Mistrial

Moving Party: Plaintiff/Cross-Defendant Lee Lipscomb

Responding Party: Cross-Complainants Thomas Girardi, G&L Aviation, 1122

Wilshire Partnership, 1126 Wilshire Partnership, and Girardi & Keese


Tentative Ruling: The Motion for Mistrial is granted.


Between November 27, 2018, and December 5, 2018, Judge Joseph Kalin tried the issue of whether Plaintiff/Cross-Defendant Lee Lipscomb waived the right to partition.

On December 28, 2018, the Court entered a statement of decision finding that Lipscomb had waived such right.

On January 15, 2019, Lipscomb filed objections to the Court’s statement of decision.

Lipscomb seeks a mistrial because Judge Kalin never ruled upon Lipscomb’s objections and, therefore, did not submit a final statement of decision.

On October 7, 2020, the Court tentatively granted Lipscomb’s Motion for a Mistrial. This was because Judge Kalin became unavailable prior to completing the entire process contemplated by Code Civ. Proc. § 632 and Cal Rules of Court, Rule 3.1590. (Raville v. Singh (1994) 25 Cal.App.4th 1127.)

The Court, however, continued the Motion for supplemental briefing. Cross-Complainants have submitted briefing arguing that there was no obligation to rule on the objections because a statement of decision was never requested. That is, the process under Code Civ. Proc. § 632 and Cal Rules of Court, Rule 3.1590 was never invoked. For this reason, Cross-Complainants urge the Court to follow Leiserson v. City of San Diego (1986) 184 Cal.App.3d 41.

In Leiserson it was said, “We recognize that the fact that a party may file objections to a proposed statement of decision pursuant to California Rules of Court, rule 232(d) necessarily implies that the statement may be modified, perhaps even to the point of changing the result. We are presented here, however, with a situation in which there is no indication such modification was contemplated or ever considered. Judge Carter's ‘Intended Decision’-in reality a proposed statement of decision-provides a complete and adequate basis for appellate review. In such circumstances, we hold a presiding judge is empowered by section 635 to sign and enter the judgment.” (Leiserson, supra, 184 Cal.App.3d at p. 49.)

Leiserson and Raville are not distinguishable based on whether a request for a statement of decision was made. Like in Raville, a request was also made in Leiserson. (Leiserson, supra, 184 Cal.App.3d at p. 46 [“Based on Leiserson's earlier request for a statement of decision, Judge Carter filed an ‘Intended Decision’ in which he explained his conclusion . . . .”].)

Rather, the difference between these cases seems to be that in Raville the trial judge issued a conclusory minute order indicating his findings whereas in Leiserson a detailed ruling was provided. (Raville v. Singh (1994) 25 Cal.App.4th at p. 1131 n.3 [“[T]he minute order in this case is not comparable to the detailed tentative decision in Leiserson because it does not ‘explain[ ] the factual and legal basis for its [court's] decision as to each of the principal controverted issues....’ (Code Civ. Proc., § 632.) Rather, it merely states conclusions.”].) Further, in Leiserson the trial judge had indicated at an initial hearing relating to objections that it was likely that the statement of decision would be unaltered. That is, it was communicated that the intended statement of decision was substantively finalized.

There are, however, cases recognizing that Code Civ. Proc. § 635[1] “authorizes the signing of a formal judgment by the presiding judge only where (1) no statement of decision has been requested or (2) the judge who has heard the evidence has already provided the parties with a statement of decision upon their request for it.” (Armstrong v. Picquelle (1984) 157 Cal.App.3d 122, 127.)

Cross-Complainants’ argument that a statement of decision was never requested is not particularly persuasive. Code Civ. Proc. § 632 indicates that a statement of decision is to be requested “within 10 days after the court announces a tentative decision . . . .” Here, there is no indication of any conclusory, tentative decision that would trigger the time to request a statement of decision. Rather, Judge Kalin immediately issued what appears to be a proposed statement of decision. To the extent Code Civ. Proc. § 632 allows a request for a statement of decision, but one was provided without an opportunity to make a request, then the statute must also logically allow a party to make objections once such statement is provided. (Cal Rules of Court, Rule 3.1590.)

Cross-Complainants again argue that there was no obligation to rule on objections to the extent there was a stipulated, alternative method for issuing a statement of decision. They cite Bay World Trading, Ltd. v. Nebraska Beef, Inc. (2002) 101 Cal.App.4th 135.

However, it is not apparent there is evidence of any alternative, stipulated method. Judge Kalin simply requested “each counsel to present to the Court in writing what issues are going to be decided by the court, and the proposed findings to those issues.”

The remaining issue is apparently whether Judge Kalin made it known that the statement of decision at issue was final or essentially final. There is no evidence of this on the record, only speculation that Judge Kalin intended for his statement to be final because the words “proposed” or “tentative” were not used. Without a clear indication that the statement was final as in Leiserson, it seems Raville should be followed.

Thus, the Court again concludes that because Judge Kalin became unavailable prior to completing the entire process contemplated by Code Civ. Proc. § 632 and Cal Rules of Court, Rule 3.1590, the Motion for Mistrial is granted.


[1] Code Civ. Proc. § 635 provides, “In all cases where the decision of the court has been entered in its minutes, and when the judge who heard or tried the case is unavailable, the formal judgment or order conforming to the minutes may be signed by the presiding judge of the court or by a judge designated by the presiding judge.”

Case Number: BC547290    Hearing Date: October 07, 2020    Dept: 58

Judge John P. Doyle

Department 58


Hearing Date: October 7, 2020

Case Name: Lipscomb v. Girardi, et al.

Case No.: BC547290

Matter: Motion for Mistrial

Moving Party: Plaintiff/Cross-Defendant Lee Lipscomb

Responding Party: Cross-Complainants Thomas Girardi, G&L Aviation, 1122

Wilshire Partnership, 1126 Wilshire Partnership, and Girardi & Keese


Tentative Ruling: The Motion for Mistrial is granted.


Between November 27, 2018, and December 5, 2018, Judge Joseph Kalin tried the issue of whether Plaintiff/Cross-Defendant Lee Lipscomb waived the right to partition.

On December 28, 2018, the Court entered a statement of decision finding that Lipscomb had waived such right.

On January 15, 2019, Lipscomb filed objections to the Court’s statement of decision.

Lipscomb now seeks a mistrial because Judge Kalin never ruled upon Lipscomb’s objections and, therefore, did not submit a final statement of decision.

Cross-Complainants Thomas Girardi, G&L Aviation, 1122 Wilshire Partnership, 1126 Wilshire Partnership, and Girardi & Keese argue Judge Kalin implicitly overruled such objections by not having amended his statement of decision.

Cal Rules of Court, Rule 3.1590(g), states, “Any party may, within 15 days after the proposed statement of decision and judgment have been served, serve and file objections to the proposed statement of decision or judgment.” Further, Code Civ. Proc. § 632 contemplates amendment of an initial statement of decision.

“When the trial judge becomes unavailable before the entire process contemplated in [Code of Civil Procedure] section 632, and California Rules of Court, rule [3.1590] has been completed, the parties have been deprived of a full and fair trial.” (Swift v. Daniels (1980) 103 Cal.App.3d 263, 265.)

Here, there is nothing indicating Judge Kalin ever read, considered, or ruled upon Lipscomb’s January 15, 2019, objections. Lipscomb was entitled to a ruling on such objections, but Judge Kalin presided over a different department of the Stanley Mosk Courthouse by January 2, 2019, and his temporary assignment apparently ended altogether in March 2019. Because Judge Kalin became unavailable before ruling upon Lipscomb’s objections, Lipscomb is entitled to a mistrial.

Raville v. Singh (1994) 25 Cal.App.4th 1127 is instructive. There, Judge Fainer issued a proposed statement of decision; the parties objected; Judge Fainer sadly passed away before ruling on the objections; and the supervising judge thereafter entered the proposed statement of decision as the court’s final decision. The court of appeal reversed the resulting judgement because Judge Fainer—the judge who had presided over trial—did not follow the entire process required by Code Civ. Proc. § 632 and Cal Rules of Court, Rule 3.1590. That is, Judge Fainer did not rule on the objections so as to enter a final statement of decision.

Importantly, the issuance of an intended statement of decision is not sufficient to meet the requirements of Code Civ. Proc. § 632. (Id. at p. 1132.) “ '[A] court is not bound by its statement of intended decision and may enter a wholly different judgment than that announced.' [Citation.] 'Neither an oral expression nor a written opinion can restrict the power of the judge to declare his [or her] final conclusion in his [or her] findings of fact and conclusions of law. [Citation.] The findings and conclusions constitute the final decision of the court and an oral or written opinion cannot be resorted to for the purpose of impeaching or gainsaying the findings and judgment. [Citation.]' ... [¶] A statement of decision allows the trial court to review its memorandum of intended decision and 'to make ... corrections, additions, or deletions it deems necessary or appropriate.' [Citation.] Such statement thus enables a reviewing court 'to determine what [law] the trial court employed....' [Citation.] It is the statement of decision which allows the court to place upon the record its view of facts and law of the case. [Citation.]” (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646-647.)

Further, no judge other than Judge Kalin can rule on the subject objections as such “would wrest from the parties the right to have 'the judge who hears the evidence ... decide the case' [citation], depriving them of their right to a full and fair trial.” (Raville, supra, 25 Cal.App.4th at p. 1133.)

The only case cited by Cross-Complainants in opposition to the Motion is Bay World Trading, Ltd. v. Nebraska Beef, Inc. (2002) 101 Cal.App.4th 135 which is unhelpful because (1) it involves a stipulated, alternative process relating to statements of decisions and (2) there, the objections at issue were actually considered by the trial judge.

Because Judge Kalin became unavailable prior to completing the entire process contemplated by Code Civ. Proc. § 632 and Cal Rules of Court, Rule 3.1590, the Motion for Mistrial is granted.

Case Number: BC547290    Hearing Date: August 19, 2020    Dept: 58


Hearing Date: August 19, 2020

Case Name: Lipscomb v. Girardi, et al.

Case No.: BC547290

Matter: Motion for Trial Preference

Moving Party: Plaintiff/Cross-Defendant Lee Lipscomb

Responding Party: Cross-Complainants Thomas Girardi, G&L Aviation, 1122

Wilshire Partnership, 1126 Wilshire Partnership, and Girardi & Keese


Tentative Ruling: The Motion for Trial Preference is granted.


Plaintiff Lee Lipscomb seeks a trial preference because “(a) Lipscomb is over 80-years-old, has a substantial interest in this action, and has a deteriorating health condition such that preference is necessary to prevent prejudicing his interest in the litigation; and (b) Defendant and Cross-Defendant Thomas Girardi (“Girardi”), who purports to act on behalf of all other Cross-Defendants, is at least 80 years old and also has a substantial interest in this action.” (Notice of Motion.)

Code Civ. Proc. § 36 represents the Legislature’s determination that as a matter of public policy trial preference should be afforded to litigants who meet the statutory criteria. (Greenblatt v. Kaplan’s Restaurant (1985) 171 Cal.App.3d 991, 994 [“The obvious intent of the Legislature in enacting section 36 was to ensure that elderly persons not be denied their rights in civil litigation because of the current lengthy delays in having cases set for trial”].) Subdivision (a) sets forth the criteria as follows:

(a) A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings:

(1) The party has a substantial interest in the action as a whole.

(2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.

(Code Civ. Proc. § 36(a).) In the event a plaintiff carries his or her burden to show trial preference is warranted, trial must be set within 120 days, even if opposing parties have not completed discovery or pretrial preparations. (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085-1086 [“The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations”].)

Here, there is no dispute that Lipscomb (1) is over 70 and (2) has a substantial interest in this litigation. (Opposition at p. 2.) Thus, the issue is whether Lipscomb’s health is “such that a preference is necessary to prevent prejudicing [Lipscomb’s] interest in the litigation.” (Code Civ. Proc. § 36(a)(2).)

The Court believes Lipscomb’s evidence on this issue is sufficient: “I am in an advanced stage of Parkinson's (Stage 3) and it now precludes me from driving. My ability to maintain my balance has deteriorated over time. My mobility has deteriorated over time. With the passage of time, my condition will deteriorate further.” (Lipscomb Decl. ¶ 3.)

Thus, the Motion for Trial Preference is granted. The Court is required to set a trial date within 120 days. (Code Civ. Proc. § 36(f).) This would mean that trial must be set no later than December 17, 2020. However, as a result of the COVID-19 pandemic, Judge Brazile issued a general order which states, “the Court will not set any Civil jury trials to commence before January 2021.” The Court is unfortunately in a difficult position given the mandates of Code Civ. Proc. § 36 and the Court’s general order. The Court is inclined to set trial for January 2021. This will be further discussed with counsel at the Motion hearing.

Case Number: BC547290    Hearing Date: July 15, 2020    Dept: 58

Judge John P. Doyle

Department 58


Hearing Date: July 15, 2020

Case Name: Lipscomb v. Girardi, et al.

Case No.: BC547290

Matter: Motion to Compel Further Responses

Moving Party: Lee Lipscomb

Responding Party: Girardi & Keese, Thomas Girardi, G&L Aviation, 1122 Wilshire

Partnership, and 1126 Wilshire Partnership


Tentative Ruling: The Motion to Compel is denied without prejudice.


Lipscomb seeks to compel further responses to his request for production, set two, propounded upon Girardi & Keese, Thomas Girardi, G&L Aviation, 1122 Wilshire Partnership, and 1126 Wilshire Partnership. Lipscomb contends Defendants asserted meritless objections.

Plaintiff explains that the meet and confer process stalled due to illness of Defendants’ agents. Further, Defendants provide they are willing to further meet and confer and provide supplemental responses.

As the parties have not fully met and conferred, they are to do so now. Therefore, at the moment, the Motion to Compel Further Responses is denied without prejudice.

Case Number: BC547290    Hearing Date: July 14, 2020    Dept: 58

Judge John P. Doyle

Department 58


Hearing Date: July 14, 2020

Case Name: Lipscomb v. Girardi, et al.

Case No.: BC547290

Matter: (1) Motion for Summary Judgment/Adjudication

and Form Interrogatory no. 17.1

Set Three

Moving Party: (1) (3) (4) Cross-Defendant Lee Lipscomb

Wilshire Partnership, and Girardi & Keese

Responding Party: (1) Cross-Complainants Thomas Girardi, G&L Aviation, and 1122

Wilshire Partnership

(2) Lee Lipscomb

(3) Thomas Girardi, G&L Aviation, 1122 Wilshire Partnership, Girardi &

Keese

(4) G&L Aviation and Girardi & Keese


Tentative Ruling:      The Motion for Summary Adjudication is granted as to the fourth

cause of action but is otherwise denied.

The Motion for Attorneys’ Fees is denied.

Admissions and Form Interrogatory no 17.1 is granted in part.

Production, Set Three, is denied without prejudice.


On July 24, 2014, Thomas Girardi, G&L Aviation, 1122 Wilshire Partnership, 1126 Wilshire Partnership, and Girardi & Keese filed a Cross-Complaint alleging causes of action for (1) breach of contract, (2) breach of fiduciary duty, (3) bad faith, (4) declaratory relief, (5) quiet title, (6) remove cloud on title, and (7) an accounting.  The Cross-Complaint relates to Cross-Defendant Lee Lipscomb’s alleged failure to pay his pro-rata share of renovation and maintenance costs incurred by 1122 Wilshire Partnership.

(1) Motion for Summary Judgment/Adjudication

Cross-Defendant Lee Lipscomb seeks summary judgment or, alternatively, summary adjudication as to the first, second, fourth, and seventh causes of action in the Cross-Complaint.  The central premise of the Motion is that, assuming there exists a valid partnership agreement between the parties, Lipscomb cannot be liable for any renovation/maintenance costs because no other partner of 1122 Wilshire Partnership performed by paying these costs themself.  Lipscomb contends that the only entity which paid such costs was Girardi & Keese which was not a partner of 1122 Wilshire Partnership.

However, consistent with Department 54’s October 13, 2015, ruling on a prior motion for summary adjudication as well as Judge Kalin’s December 18, 2018, statement of decision following a bench trial in this action, it could be seen that Girardi & Keese paid renovation costs on behalf of Thomas Girardi, individually or as a partner of G&L Aviation.  (See also Cross-Complainants’ Statement of Additional Fact no. 9; Civ. Code § 1473.)  Lipscomb’s arguments to the contrary merely go to the weight of the evidence. 

Lipscomb also argues that he cannot be sued for renovation costs; rather, 1122 Wilshire Partnership must reimburse partners.  (Corp. Code § 16401.)  However, a partnership can sue a partner for breach of partnership agreement, and a partner can sue another partner to enforce her rights under the partnership agreement.  (Corp. Code § 16405(a)-(b).) 

Lipscomb also argues the fourth cause of action for declaratory relief fails because it is merely duplicative of the remaining claims within the Cross-Complaint. 

On this point the Court agrees.  Cross-Complainants’ declaratory relief claim is improper to the extent the first and second causes of action would provide adequate relief.  (See General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 471.)

In sum, the Motion for Summary Adjudication is granted as to the fourth cause of action but is otherwise denied.  The objections are overruled.  (Code Civ. Proc. § 437c(q).)

(2) Motion for Attorneys’ Fees and Costs

Thomas Girardi, G&L Aviation, 1122 Wilshire Partnership, 1126 Wilshire Partnership, and Girardi & Keese seek their attorneys’ fees and costs relating to partition pursuant to Code Civ. Proc. § 874.040.

Code Civ. Proc. § 874.040 provides, “Except as otherwise provided in this article, the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.”

The Court will not award any fees or costs because neither a partition by sale nor partition in kind has been ordered in this matter.  In fact, in December 2018, Judge Kalin ruled that there would be no partition in this action due to waiver.  

Moving parties argue that fees should be awarded out of fairness and equity.  However, “[i]t is elementary that counsel fees are not recoverable in actions either at law or in equity except where expressly allowed by statute.”  (Williams v. Miranda (1958) 159 Cal.App.2d 143, 158.)  The Motion is denied. 

(3) Motion to Compel Further Responses—Requests for Admission and Form Interrogatory no. 17.1

Lipscomb moves to compel further responses to his requests for admissions, sets one and two, and accompanying form interrogatory no. 17.1 propounded upon Thomas Girardi, G&L Aviation, 1122 Wilshire Partnership, and Girardi & Keese.  Lipscomb also seeks to deem request for admission no. 51 admitted because Defendants’ response was that client input was needed; Lipscomb contends this is tantamount to no response at all. 

The instant dispute is mostly procedural.  It appears Defendants’ responses did not properly differentiate set numbers and request numbers between the different entities—rather, a single document was served for all entities.  Further, responses for G&L Aviation and 1122 Wilshire Partnership were verified by Chris Kamon, but Kamon is apparently only an agent for Girardi & Keese. 

Defendants’ Opposition does not make clear that responses were properly served according to set and request number.  Further, the Opposition does not make clear that Chris Kamon can verify responses for G&L Aviation and 1122 Wilshire Partnership.  As to the response to request for admission no. 51, the Court, in the exercise of its discretion, treats this as an inadequate response. 

Thus, further responses to the subject discovery are to be provided within twenty days.  The Court respectfully declines to award sanctions.  The Motion to Compel is granted in part as set forth herein.

(4) Motion to Compel Further Responses—Requests for Production, Set Three

Lipscomb seeks to compel further responses to his request for production, set three, propounded upon G&L Aviation and Girardi & Keese.  Specifically, Lipscomb seeks a further response as to requests nos. 137-145 on the ground that the objections asserted are meritless.

Plaintiff explains that the meet and confer process stalled due to illness of Defendants’ agents.  Further, Defendants provide they are willing to further meet and confer and provide supplemental responses. 

As the parties have not fully met and conferred, they are to do so now.  Therefore, at the moment, the Motion to Compel Further Responses is denied without pre

Case Number: BC547290    Hearing Date: December 03, 2019    Dept: 58

JUDGE JOHN P. DOYLE

DEPARTMENT 58

Hearing Date: December 3, 2019

Case Name: Lipscomb v. Thomas Girardi, et al.

Case No.: BC547290

Motion: Motion to Require Recording of Lis Pendens

Moving Party: Plaintiff Lee Lipscomb

Responding Party: Defendants Thomas Girardi, G&L Aviation, 1122 Wilshire Partnership, 1126 Wilshire Partnership, and Girardi & Keese

Tentative Ruling: The Motion is denied.

Plaintiff seeks an order requiring that Defendants/Cross-Complainants Thomas Girardi, G&L Aviation, 1122 Wilshire Partnership, 1126 Wilshire Partnership, and Girardi & Keese record a lis pendens because they asserted a claim for quiet title in their Cross-Complaint. Plaintiff also notes that he sought partition.

The basis for requiring a lis pendens now is not apparent given that Cross-Complainants’ quiet title claim was summarily adjudicated and the court found that Plaintiff’s partition claim had been waived. The Motion is denied.

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