This case was last updated from Los Angeles County Superior Courts on 10/27/2018 at 10:32:19 (UTC).

ROSEMARY PERERA ET AL VS JAMES O CONAWAY ET AL

Case Summary

On 08/09/2016 ROSEMARY PERERA filed a Contract - Other Contract lawsuit against JAMES O CONAWAY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are BARBARA A. MEIERS and TERESA A. BEAUDET. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7323

  • Filing Date:

    08/09/2016

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

BARBARA A. MEIERS

TERESA A. BEAUDET

 

Party Details

Plaintiffs

PERERA RAMESH

GRR CAPITAL LLC

PERERA GIHAN

PERERA ROSEMARY

Defendants and Cross Plaintiffs

CONAWAY JAMES O.

DPW ASSOCIATES OF CA. LLC

ST. LOUIS REDEVELOPMENT COMPANY LLC

I.C.S. CONSTRUCTION SERVICES LLC

CONAWAY LORRAINE A.

D.W.P. ASSOCIATES OF CA LLC

DOES 1 THROUGH 100

KATSIMBRAKIS GIRO

TYCON PROPERTIES INC.

CONAWAY & CONAWAY INC.

TITLE EXPERTS LLC

BANTA TYLER

Attorney/Law Firm Details

Plaintiff Attorneys

ZUBER LAWLER & DEL DUCA LLP

DAVIDSON ZACHARY STEPHENS

Defendant Attorneys

BATH DANIEL G. ESQ.

PAULA E. MEYER & ASSOCIATES APC

STEPHANIE SCHNEIDER

MANNING & KASS ELLROD RAMIREZ TRESTER LLP

LEWIS BRISBOIS BISGAARD & SMITH LLP

SCHNEIDER STEPHANIE

MEYER PAULA ELAINE

 

Court Documents

COMPLAINT FOR: (1) NEGLIGENCE, ETC

8/9/2016: COMPLAINT FOR: (1) NEGLIGENCE, ETC

Unknown

9/6/2016: Unknown

CIVIL DEPOSIT

9/29/2016: CIVIL DEPOSIT

REPLY BRIEF OF DEFENDANTS JAMES 0. CONAWAY, LORRAINE A. CONAWAY, CONAWAY & CONAWAY, INC., TYCON PROPERTIES, INC., AND TYLER BANTA TO THE OPPOSITION OF PLAINTIFFS ROSEMARY PERERA, RAMESH PERERA, GIHAN

3/13/2017: REPLY BRIEF OF DEFENDANTS JAMES 0. CONAWAY, LORRAINE A. CONAWAY, CONAWAY & CONAWAY, INC., TYCON PROPERTIES, INC., AND TYLER BANTA TO THE OPPOSITION OF PLAINTIFFS ROSEMARY PERERA, RAMESH PERERA, GIHAN

PLAINTIFFS ROSEMARY PERERA, RAMESH PERERA, GIHAN PERERA, AND GRR CAPITAL, LLC'S SURREPLY IN OPPOSITION TO DEFENDANTS JAMES O. CONAWAY, LORRAINE A. CONAWAY, CONAWAY & CONAWAY, INC., TYCON PROPERTIES, I

4/11/2017: PLAINTIFFS ROSEMARY PERERA, RAMESH PERERA, GIHAN PERERA, AND GRR CAPITAL, LLC'S SURREPLY IN OPPOSITION TO DEFENDANTS JAMES O. CONAWAY, LORRAINE A. CONAWAY, CONAWAY & CONAWAY, INC., TYCON PROPERTIES, I

NOTICE OF HEARING ON DEMURRER AND DEMURRER OF DEFENDANT TITLE EXPERTS, LLC TO COMPLAINT OF PLAINTIFFS ROSEMARY PERERA, RAMESH PERERA, C THAN PERERA AND GRR CAPITAL, LCC; MEMORANDUM OF POINTS AND AUTHO

4/24/2017: NOTICE OF HEARING ON DEMURRER AND DEMURRER OF DEFENDANT TITLE EXPERTS, LLC TO COMPLAINT OF PLAINTIFFS ROSEMARY PERERA, RAMESH PERERA, C THAN PERERA AND GRR CAPITAL, LCC; MEMORANDUM OF POINTS AND AUTHO

RESPONSE OF DEMURRING DEFENDANTS JAMES O. CONAWAY, LORRAINE A. CONAWAY, CONAWAY & CONAWAY, INC., TYCON PROPERTIES, INC., AND TYLER BANTA TO THE PLAINTIFFS'' "SURREPLY"

4/24/2017: RESPONSE OF DEMURRING DEFENDANTS JAMES O. CONAWAY, LORRAINE A. CONAWAY, CONAWAY & CONAWAY, INC., TYCON PROPERTIES, INC., AND TYLER BANTA TO THE PLAINTIFFS'' "SURREPLY"

REPLY OF DEFENDANT TITLE EXPERTS, LLC TO OPPOSITION TO DEMURRER TO COMPLAINT OF PLAINTIFFS ROSEMARY PERERA, RAMESH PERERA, GIHAN PERERA AND GRR CAPITAL, LCC; ETC

7/26/2017: REPLY OF DEFENDANT TITLE EXPERTS, LLC TO OPPOSITION TO DEMURRER TO COMPLAINT OF PLAINTIFFS ROSEMARY PERERA, RAMESH PERERA, GIHAN PERERA AND GRR CAPITAL, LCC; ETC

Minute Order

8/28/2017: Minute Order

ORDER RE: DEFENDANT TITLE EXPERT, LLC'S DEMURRER TO COMPLAINT

9/29/2017: ORDER RE: DEFENDANT TITLE EXPERT, LLC'S DEMURRER TO COMPLAINT

Unknown

10/23/2017: Unknown

NOTICE OF NO OPPOSITION RECEIVED TO MOTION OF LEWIS BRISBOIS BISGAARD & SMITH LLP TO BE RELIEVED AS COUNSEL

10/30/2017: NOTICE OF NO OPPOSITION RECEIVED TO MOTION OF LEWIS BRISBOIS BISGAARD & SMITH LLP TO BE RELIEVED AS COUNSEL

CIVIL DEPOSIT

11/7/2017: CIVIL DEPOSIT

ORDER RE: MOTION FOR LEAVE TO AMEND COMPLAINT

12/5/2017: ORDER RE: MOTION FOR LEAVE TO AMEND COMPLAINT

NOTICE OF SETTLEMENT OF ENTIRE CASE

3/1/2018: NOTICE OF SETTLEMENT OF ENTIRE CASE

NOTICE OF STATUS CONFERENCE RE DISMISSAL AFTER SETTLEMENT

3/15/2018: NOTICE OF STATUS CONFERENCE RE DISMISSAL AFTER SETTLEMENT

DEFENDANTS' GLOBAL FINANCIAL DISTRIBUTORS, ALLIED MARKETING PARTNERS, AND ALAN HARRINGTON'S MOTION TO ENFORCE FORUM SELECTION CLAUSE; DECLARATIONS OF JAMES E. GIBBONS AND JONATHAN D. ROSEN

3/15/2018: DEFENDANTS' GLOBAL FINANCIAL DISTRIBUTORS, ALLIED MARKETING PARTNERS, AND ALAN HARRINGTON'S MOTION TO ENFORCE FORUM SELECTION CLAUSE; DECLARATIONS OF JAMES E. GIBBONS AND JONATHAN D. ROSEN

NOTICE OF RULING ON EX PARTE APPLICATION TO SHORTEN TIME ON MOTION TO ENFORCE FORUM SELECTION CLAUSE

3/22/2018: NOTICE OF RULING ON EX PARTE APPLICATION TO SHORTEN TIME ON MOTION TO ENFORCE FORUM SELECTION CLAUSE

96 More Documents Available

 

Docket Entries

  • 10/19/2018
  • Notice (name extension) (of ruling Re: Osc Dismissal); Filed by Title Experts, LLC (Defendant)

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  • 10/18/2018
  • at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Status Conference - Held

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  • 10/18/2018
  • Minute Order ( (Status Conference)); Filed by Clerk

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  • 10/16/2018
  • Declaration (name extension) (Of Zachary S. Davidson in Response to Declaration of Paula E. Meyer)

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  • 10/09/2018
  • Declaration (name extension) (of Paula El Meyer on Behalf of Defendants James O. Conaway, Lorraine A. Conaway, Conaway and Conaway, INC., Tycon Properties, INC., and Tyler Banta Re:)

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  • 09/26/2018
  • at 09:30 AM in Department 50, Teresa A. Beaudet, Presiding; Unknown Event Type

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  • 09/17/2018
  • NOTICE OF ERRATA

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  • 09/17/2018
  • Notice; Filed by Defendant/Respondent

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  • 09/14/2018
  • at 09:30 AM in Department 50, Teresa A. Beaudet, Presiding; Final Status Conference

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  • 08/08/2018
  • Notice of Change of Address or Other Contact Information; Filed by James O. Conaway (Defendant)

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202 More Docket Entries
  • 09/01/2016
  • Proof-Service/Summons; Filed by GRR Capital, LLC (Plaintiff); Gihan Perera (Plaintiff); Ramesh Perera (Plaintiff) et al.

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  • 09/01/2016
  • Notice and Acknowledgment of Receipt; Filed by GRR Capital, LLC (Plaintiff); Gihan Perera (Plaintiff); Ramesh Perera (Plaintiff) et al.

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  • 08/10/2016
  • at 00:00 AM in Department 12, Barbara A. Meiers, Presiding; Unknown Event Type - Held - Motion Granted

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  • 08/10/2016
  • Minute Order

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  • 08/10/2016
  • Challenge To Judicial Officer - Peremptory (170.6); Filed by GRR Capital, LLC (Plaintiff); Gihan Perera (Plaintiff); Ramesh Perera (Plaintiff) et al.

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  • 08/10/2016
  • PEREMPTORY CHALLENGE TO JUDICIAL OFFICER (CODE CIV. PROC. 170.6)

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  • 08/09/2016
  • Summons; Filed by Plaintiff/Petitioner

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  • 08/09/2016
  • Complaint; Filed by GRR Capital, LLC (Plaintiff); Gihan Perera (Plaintiff); Ramesh Perera (Plaintiff) et al.

    Read MoreRead Less
  • 08/09/2016
  • COMPLAINT FOR: (1) NEGLIGENCE, ETC

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  • 08/09/2016
  • SUMMONS

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Tentative Rulings

Case Number: BC627323    Hearing Date: January 29, 2020    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

rosemary perera, et al.,

Plaintiffs,

vs.

james o. conaway, et al.,

Defendants.

Case No.:

BC 627323

Hearing Date:

January 29, 2020

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

PLAINTIFFS’ MOTION PURSUANT TO CRC 3.1385 TO SHOW CAUSE WHY THIS CASE SHOULD NOT BE DISMISSED

Background

On August 9, 2016, Plaintiffs Rosemary Perera, Ramesh Perera, Gihan Perera, and GRR Capital, LLC (collectively, “Plaintiffs”) filed this action against, inter alia, Defendants James O. Conaway, Lorraine A. Conaway, Conaway & Conaway, Inc., Tycon Properties, Inc., and Tyler Banta (collectively, the “Conaway Defendants”). The operative First Amended Complaint was filed on December 5, 2017.

Plaintiffs allege that Defendants advised on, marketed, and sold certain investment properties in St. Louis, Missouri to Plaintiffs, claiming that the properties would be rehabilitated by Defendants, rented out to provide cash flow to Plaintiffs, and/or flipped at a substantial profit to Plaintiffs. Plaintiffs allege that Defendants’ claims were misrepresentations, resulting in Plaintiffs’ investing more than $600,000 in properties that have significantly depreciated in value and fallen into disrepair.

On March 1, 2018, Plaintiffs filed a Notice of Conditional Settlement, indicating that the parties had entered into a settlement agreement that conditioned dismissal of this matter on the satisfactory completion of specified terms that are not to be performed within 45 days of the date of the settlement. The Notice of Conditional Settlement also stated that a request for dismissal would be filed no later than August 27, 2018. On October 16, 2018, counsel for Plaintiffs filed a declaration stating that “Defendants failed to perform their obligations under the conditional agreement and refused to cooperate with Plaintiffs’ efforts to salvage a compromise agreement.” (10/16/18 Davidson Decl., ¶ 6.)

On July 31, 2019, Plaintiffs filed an action to rescind the settlement agreement (Case No. 19STCV26666) (the “Rescission Action”). On August 9, 2019, the Rescission Action was related to the instant case. Plaintiffs asserted two causes of action in the Rescission Action: (1) rescission based on fraud and deceit, and (2) rescission based on failure of consideration. On October 23, 2019, Plaintiffs filed a request for dismissal as to the first cause of action. The dismissal was entered as requested on October 24, 2019.

Pursuant to California Rules of Court, rule 3.1385(b) and (c), because 45 days have elapsed since the dismissal date specified in the Notice of Conditional Settlement, the instant case must be dismissed unless good cause is shown why the case should not be dismissed. Plaintiffs now move to prevent the dismissal of this case. The Conaway Defendants oppose. Defendant Title Experts, LLC (“Title Experts”) also opposes.

Request for Judicial Notice

The Court grants the Conaway Defendants’ request for judicial notice as to Exhibits A and B.

Evidentiary Objections

The Court previously ordered the parties to meet and confer regarding the evidentiary objections that were originally filed in connection with the parties’ respective papers. The Court is informed that the parties have since waived all of their evidentiary objections.

Discussion

“[A] party’s allegations that no enforceable settlement has been reached constitutes good cause under California Rules of Court, rule 3.1385(b), [and] preclud[es] the trial court from dismissing the action.” ((Irvine v. Regents of University of California (2007) 149 Cal.App.4th 994, 1000.) In Irvine, the plaintiff contended that she agreed to the settlement “only under duress” and that her consent to the settlement agreement was “obtained by the Defendants fraudulently withholding material information.” ((Id. at p. 999.) The Court of Appeal reversed the trial court’s order dismissing the case, holding that “[t]he only decision before the court at a rule 3.1385 hearing is whether to dismiss the case or restore it to the civil active list.” ((Id. at p. 1001.) Thus, because rule 3.1385 is simply a “case management tool for delay reduction” and “not intended as a means to enforce settlements,” “[b]y alleging a dispute over whether the parties reached a binding settlement, plaintiff demonstrated good cause to restore the case to the civil active list.” ((Id. at pp. 1001-1002.) In other words, a case may not be dismissed if there is a dispute as to whether the case actually settled and was ready to be dismissed.

Plaintiffs argue that good cause exists not to dismiss this case because Defendants failed to satisfy the terms of the settlement agreement. According to Plaintiffs, Defendant Giro Katsimbrakis (“Katsimbrakis”) agreed to purchase the subject properties back from Plaintiffs through his corporate alter ego Defendant St. Louis Redevelopment Company, LLC (“SLRC”), and escrow was to close by June 30, 2018. (Perera Decl., ¶ 4, Ex. 1.) However, escrow did not close by June 30, 2018. (Perera Decl., ¶ 5.) Escrow had not even been opened by that date. (Perera Decl., ¶ 5.) Plaintiffs assert that notwithstanding this failure, Plaintiffs attempted to salvage the settlement until May 10, 2019, when counsel for the Conaway Defendants stated that SLRC “cannot take title to the properties which are the subject of the case.” (Osher Decl., ¶ 10, Ex. 5.) Instead, Defendants suggested that a related entity would be able to acquire the properties “and pay the agreed consideration, in tranches.” (Osher Decl., ¶ 10, Ex. 5.)

Plaintiffs contend that the settlement agreement is unenforceable because Defendants have failed to perform the terms of the settlement agreement. The Court notes that the Conaway Defendants and Title Experts both disagree with Plaintiffs’ characterization of the events. Even accepting as true Plaintiffs’ argument that Defendants have failed to perform under the settlement agreement and that Defendants cannot perform, this merely amounts to a breach of the settlement agreement. In other words, a purported breach of a settlement agreement does not necessarily make the settlement agreement unenforceable. (See Taliaferro v. Davis (1963) 216 Cal.App.2d 398, 410-411 [“Failure of consideration is the failure to execute a promise, the performance of which has been exchanged for performance by the other party. . . . . Failure of consideration does not, however, vitiate the contract from the beginning; until rescinded or terminated a contract once in effect remains in effect.”].) However, as noted in Taliaferro, a failure of consideration may result in rescission. The parties have not adequately addressed whether such a rescission, if granted, will fully resuscitate Plaintiffs’ causes of action without risk of dismissal based upon any applicable statute of limitations defense. If Plaintiffs causes of action will be susceptible to a statute of limitations defense once rescission is granted, then it would seem to be improper to dismiss this action at this time rather than staying it and letting the rescission action run its course. Of course, if the Defendants stipulate that they will not raise any such bar, then this matter can be dismissed. The Court will discuss this issue with the parties at the hearing.

The Court notes that Plaintiffs also assert that Defendants made a number of material misrepresentations at the February 2018 mediation to induce Plaintiffs to enter into the settlement agreement (presumably because a fraudulently induced settlement is unenforceable). But as noted by Defendants in their supplemental opposition, Plaintiffs have since dismissed their rescission claim based on fraud.

Conclusion

Alternatives:

  1. Based on the foregoing, the Court finds that Plaintiffs have shown good cause why the case should not be dismissed. The Court thus orders that the case is not dismissed.

  1. Based on the foregoing, the Court finds that Plaintiffs have not shown good cause why the case should not be dismissed. The Court thus orders the case dismissed.

Defendants are ordered to give notice of this ruling.

DATED: January 29, 2020

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court