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.
Disposed - Dismissed
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
BARBARA A. MEIERS
TERESA A. BEAUDET
GRR CAPITAL LLC
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
TYCON PROPERTIES INC.
CONAWAY & CONAWAY INC.
TITLE EXPERTS LLC
ZUBER LAWLER & DEL DUCA LLP
DAVIDSON ZACHARY STEPHENS
BATH DANIEL G. ESQ.
PAULA E. MEYER & ASSOCIATES APC
MANNING & KASS ELLROD RAMIREZ TRESTER LLP
LEWIS BRISBOIS BISGAARD & SMITH LLP
MEYER PAULA ELAINE
8/9/2016: COMPLAINT FOR: (1) NEGLIGENCE, ETC
9/29/2016: CIVIL DEPOSIT
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
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
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
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"
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
8/28/2017: Minute Order
9/29/2017: ORDER RE: DEFENDANT TITLE EXPERT, LLC'S DEMURRER TO COMPLAINT
10/30/2017: NOTICE OF NO OPPOSITION RECEIVED TO MOTION OF LEWIS BRISBOIS BISGAARD & SMITH LLP TO BE RELIEVED AS COUNSEL
11/7/2017: CIVIL DEPOSIT
12/5/2017: ORDER RE: MOTION FOR LEAVE TO AMEND COMPLAINT
3/1/2018: NOTICE OF SETTLEMENT OF ENTIRE CASE
3/15/2018: NOTICE OF STATUS CONFERENCE RE DISMISSAL AFTER SETTLEMENT
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
3/22/2018: NOTICE OF RULING ON EX PARTE APPLICATION TO SHORTEN TIME ON MOTION TO ENFORCE FORUM SELECTION CLAUSE
Notice (name extension) (of ruling Re: Osc Dismissal); Filed by Title Experts, LLC (Defendant)Read MoreRead Less
at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Status Conference - HeldRead MoreRead Less
Minute Order ( (Status Conference)); Filed by ClerkRead MoreRead Less
Declaration (name extension) (Of Zachary S. Davidson in Response to Declaration of Paula E. Meyer)Read MoreRead Less
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:)Read MoreRead Less
at 09:30 AM in Department 50, Teresa A. Beaudet, Presiding; Unknown Event TypeRead MoreRead Less
NOTICE OF ERRATARead MoreRead Less
Notice; Filed by Defendant/RespondentRead MoreRead Less
at 09:30 AM in Department 50, Teresa A. Beaudet, Presiding; Final Status ConferenceRead MoreRead Less
Notice of Change of Address or Other Contact Information; Filed by James O. Conaway (Defendant)Read MoreRead Less
Proof-Service/Summons; Filed by GRR Capital, LLC (Plaintiff); Gihan Perera (Plaintiff); Ramesh Perera (Plaintiff) et al.Read MoreRead Less
Notice and Acknowledgment of Receipt; Filed by GRR Capital, LLC (Plaintiff); Gihan Perera (Plaintiff); Ramesh Perera (Plaintiff) et al.Read MoreRead Less
at 00:00 AM in Department 12, Barbara A. Meiers, Presiding; Unknown Event Type - Held - Motion GrantedRead MoreRead Less
Minute OrderRead MoreRead Less
Challenge To Judicial Officer - Peremptory (170.6); Filed by GRR Capital, LLC (Plaintiff); Gihan Perera (Plaintiff); Ramesh Perera (Plaintiff) et al.Read MoreRead Less
PEREMPTORY CHALLENGE TO JUDICIAL OFFICER (CODE CIV. PROC. 170.6)Read MoreRead Less
Summons; Filed by Plaintiff/PetitionerRead MoreRead Less
Complaint; Filed by GRR Capital, LLC (Plaintiff); Gihan Perera (Plaintiff); Ramesh Perera (Plaintiff) et al.Read MoreRead Less
COMPLAINT FOR: (1) NEGLIGENCE, ETCRead MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC627323 Hearing Date: January 29, 2020 Dept: 50
rosemary perera, et al.,
james o. conaway, et al.,
January 29, 2020
[TENTATIVE] ORDER RE:
PLAINTIFFS’ MOTION PURSUANT TO CRC 3.1385 TO SHOW CAUSE WHY THIS CASE SHOULD NOT BE DISMISSED
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.
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.
“[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.
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.
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