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This case was last updated from Los Angeles County Superior Courts on 06/03/2019 at 01:53:17 (UTC).

SAMUEL & GALIA COHEN VS MARC & RISA DAUER ET AL

Case Summary

On 06/06/2016 SAMUEL GALIA COHEN filed a Personal Injury - Other Personal Injury lawsuit against MARC RISA DAUER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CRAIG D. KARLAN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2869

  • Filing Date:

    06/06/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

CRAIG D. KARLAN

 

Party Details

Plaintiffs and Petitioners

COHEN SAMUEL & GALIA

COHEN GALIA

COHEN SAMUEL

Defendants, Respondents and Cross Plaintiffs

DAUER MARC & RISA

NEW CENTURY BUILDERS & DEVELOPERS INC.

DOES 1-1000

DAUER RISA

ARBIB CONSTRUCTION INC.

HILLSIDE ENGINEERING INC.

HILMOR DEVELOPMENT CORPORATION

DAUER MARC

EDEN JOSEPH T.

THREE DIMENSIONAL BUILDERS

Defendants and Cross Defendants

ARBIB CONSTRUCTION INC.

HILMOR DEVELOPMENT CORPORATION

ORO ENGINEERING CORPORATION

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MILSTEIN ADELMAN JACKSON FAIRCHILD &

JACKSON LEE

MAKARCZYK MAYO LAWRENCE

MILSTEIN JACKSON FAIRCHILD & WADE

Defendant and Cross Plaintiff Attorneys

DANIELS FINE ISRAEL SCHONBUCH & LEBOVITS

CHRISTOPHER R. SHUBECK PE ESQ.

CARNEGIE ALAN J.

SCHIMMEL ALAN IRWIN

TOREM YIGAL JOSHUA

PARKS MICHAEL W.

TOREM & ASSOCIATES

KLIER-ERLICH RINAT

SCHIMMEL ALAN I.

FINE PAUL RONALD

ORLAND JAMES JOHN

STEVEN A. WOLVEK

POPOVICH SHANNON MARIE

RHODES ARYA

Defendant and Cross Defendant Attorneys

CHRISTOPHER R. SHUBECK PE ESQ.

SHUBECK CHRISTOPHER R.

3 More Attorneys Available

 

Court Documents

Unknown

3/9/2018: Unknown

Opposition

7/25/2018: Opposition

Notice

7/25/2018: Notice

Notice of Ruling

8/8/2018: Notice of Ruling

Opposition

9/6/2018: Opposition

Opposition

9/6/2018: Opposition

Reply

9/26/2018: Reply

Minute Order

10/2/2018: Minute Order

Other -

11/9/2018: Other -

Answer

3/18/2019: Answer

Amendment to Complaint (Fictitious/Incorrect Name)

4/17/2019: Amendment to Complaint (Fictitious/Incorrect Name)

SUMMONS

6/6/2016: SUMMONS

PROOF OF SERVICE OF SUMMONS

6/21/2016: PROOF OF SERVICE OF SUMMONS

DEFENDANTS MARC AND RISA DAUER'S ANSWER TO PLAINTIFFS' FIRST AMENDED COMPLAINT; DEMAND FOR JURY TRIAL

8/15/2016: DEFENDANTS MARC AND RISA DAUER'S ANSWER TO PLAINTIFFS' FIRST AMENDED COMPLAINT; DEMAND FOR JURY TRIAL

STPULATION AND ORDER TO FILE A SECOND AMENDED COMPLAINT

4/3/2017: STPULATION AND ORDER TO FILE A SECOND AMENDED COMPLAINT

STIPULATION TO TRANSFER COMPLICATED PERSONAL INJURY CASE TO INDEPENDENT CALENDAR COURT AND ORDER

10/27/2017: STIPULATION TO TRANSFER COMPLICATED PERSONAL INJURY CASE TO INDEPENDENT CALENDAR COURT AND ORDER

Unknown

12/14/2017: Unknown

47 More Documents Available

 

Docket Entries

  • 05/30/2019
  • Brief (HRG 7/11/19 Supplemental Brief); Filed by Hilmor Development Corporation (Defendant)

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  • 05/21/2019
  • Answer; Filed by ORO ENGINEERING CORPORATION (Cross-Defendant)

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  • 05/01/2019
  • Notice of Ruling; Filed by MARC DAUER (Defendant); RISA DAUER (Defendant)

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  • 04/30/2019
  • at 08:30 AM in Department N, Craig D. Karlan, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

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  • 04/30/2019
  • at 08:30 AM in Department N, Craig D. Karlan, Presiding; Hearing on Demurrer - without Motion to Strike - Held

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  • 04/30/2019
  • at 08:30 AM in Department N, Craig D. Karlan, Presiding; Hearing on Demurrer - without Motion to Strike - Held

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  • 04/30/2019
  • Minute Order ( (Hearing on Demurrer - without Motion to Strike; Hearing on De...)); Filed by Clerk

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  • 04/17/2019
  • Amendment to Complaint (Fictitious/Incorrect Name); Filed by GALIA COHEN (Plaintiff); SAMUEL COHEN (Plaintiff)

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  • 04/12/2019
  • Reply (Cross Defendant Oro Engineering's Response to Cross Complainant New Century Builders' Opposition to Demurrer to First Amended Cross Complaint); Filed by ORO ENGINEERING CORPORATION (Cross-Defendant)

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  • 03/18/2019
  • CROSS-DEFENDANT ARBIB CONSTRUCTION INC.'S ANSWER TO CROSS-COMPLAINT OF MARC AND RISA DAUER; Filed by Arbib Construction, Inc. (Cross-Defendant)

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227 More Docket Entries
  • 06/21/2016
  • PROOF OF SERVICE OF SUMMONS

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  • 06/21/2016
  • Proof of Service (not Summons and Complaint); Filed by Cohen, Samuel & Galia (Plaintiff)

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  • 06/14/2016
  • FIRST AMENDED COMPLALNT FOR DAMAGES: 1. TRESPASS 2. REMOVAL OF LATERAL & SUBJACENT SUPPORT OF LAND 3. NUISANCE

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  • 06/14/2016
  • Summons Issued; Filed by Cohen, Samuel & Galia (Plaintiff)

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  • 06/14/2016
  • First Amended Complaint; Filed by Cohen, Samuel & Galia (Plaintiff)

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  • 06/14/2016
  • SUMMONS ON FIRST AMENDED COMPLAINT

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  • 06/06/2016
  • Complaint Filed

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  • 06/06/2016
  • Complaint; Filed by SAMUEL COHEN (Plaintiff); Cohen, Samuel & Galia (Plaintiff); GALIA COHEN (Plaintiff)

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  • 06/06/2016
  • SUMMONS

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  • 06/06/2016
  • COMPLAINT FOR DAMAGES: 1. TRESPASS; ETC

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Tentative Rulings

Case Number: BC622869    Hearing Date: September 10, 2020    Dept: N

TENTATIVE RULING

Alan I. Schimmel of Schimmel & Parks APLC’s Motion to Be Relieved as Counsel is GRANTED. A Status Conference re: New Counsel is set for December 16, 2020, at 8:30 AM.

Plaintiffs Samuel Cohen and Galia Cohen’s Motion to File Fifth Amended Complaint is DENIED.

Defendant Hilmor Development Corporation’s Motion for Summary Judgment is DENIED.

Moving parties to give notice.

REASONING

Alan I. Schimmel of Schimmel & Parks APLC’s Motion to Be Relieved as Counsel

Alan I. Schimmel of Schimmel & Parks APLC moves to be relieved as counsel for Defendant/Cross-Complainant New Century Builders & Developers, Inc. 

Counsel asserts a valid reason for withdrawal, i.e., there has been a breakdown in the attorney-client relationship between counsel and Defendant/Cross-Complainant New Century Builders & Developers, Inc., such that counsel cannot carry out the representation effectively, and the client has breached a material term of the agreement and obligations to counsel. (Rules Prof. Conduct, rules 1.16(b)(4), (b)(5).) Counsel provides the required forms under rule 3.1362 of the California Rules of Court and has served the client and the opposing parties with the same. 

There being good cause to grant counsel’s request to withdraw, Alan I. Schimmel of Schimmel & Parks APLC’s Motion to Be Relieved as Counsel is GRANTED. This ruling granting counsel’s motion to withdraw, however, shall become effective only upon filing of proof service of this ruling upon Defendant/Cross-Complainant New Century Builders & Developers, Inc. 

Defendant/Cross-Complainant New Century Builders & Developers, Inc., is reminded that a corporation cannot represent itself in litigation and must be represented by licensed counsel. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.) As such, a Status Conference re: New Counsel is set for December 16, 2020, at 8:30 AM. If Defendant/ Cross-Complainant does not obtain new counsel, an OSC re: Striking of the Answer and Cross-Complaint will be set by the Court.

Plaintiffs Samuel Cohen and Galia Cohen’s Motion to File Fifth Amended Complaint

Plaintiffs Samuel Cohen and Galia Cohen (“Plaintiffs”) move the Court for an order granting them leave to file a Fifth Amended Complaint to add a new defendant, Three Dimensional Builders, and to state a new cause of action for negligence against Defendants Hilmor Development, Oro Engineering, Airbib Construction and Three Dimensional Builders.

Request for Judicial Notice

Defendant Hilmor Development Corporation (“Hilmor”) requests judicial notice of Plaintiffs’ Certificate of Occupancy for the residence and the Third Amended Complaint. Hilmor’s request is DENIED, as to the Certificate of Occupancy, as Hilmor has not provided a copy of the same (see Cal. Rules of Court, rule 3.1306(c)); Hilmor’s request is GRANTED, as to the Third Amended Complaint, pursuant to Evidence Code section 452, subdivision (d).

Legal Standard

The court may grant leave to amend the pleadings at any stage of the action. (Code Civ. Proc., § 473, subd. (a).) A party may discover the need to amend after all pleadings are completed (the case is “at issue”) and new information requires a change in the nature of the claims or defenses previously pleaded. (See Dye v. Caterpillar, Inc. (2011) 195 Cal.App.4th 1366, 1380.)

“The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. Leave to amend should be denied only where the facts are not in dispute, and the nature of the plaintiff’s claim is clear, but under substantive law, no liability exists and no amendment would change the result.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428, internal quotation marks and citations omitted.) Courts apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial,” absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, added costs of preparation, or an increased burden of discovery. (See Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488 [trial court’s denial of leave to amend was proper where those factors were present].) If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. (See Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565 [describing same].)

A motion for leave to amend must: 

(1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

(Cal. Rules of Court, rule 3.1324(a).) 

Further, a separate declaration must accompany the motion and must specify the following:

(1) The effect of the amendment;

(2) Why the amendment is necessary and proper;

(3) When the facts giving rise to the amended allegations were discovered; and

(4) The reasons why the request for amendment was not made earlier.

(Cal. Rules of Court, rule 3.1324(b).)

Here, Plaintiffs provide a copy of the proposed Fifth Amended Complaint and identify the proposed additions to the pleading. (See Mot., pp. 4-7; see also Mot., Makarczyk Decl. ¶ 17, Ex. F.) Plaintiffs also provide a separate declaration describing as an issue whether they could bring an action for violation of the building standards at Civil Code section 896, which they describe as “the SB800 building standards,” that is has been an issue since they first filed their unauthorized Third Amended Complaint, and that the issue was noted by the Court as early as August 7, 2018. (Mot., Makarczyk Decl. ¶¶ 4-5.) In fact, on October 2, 2018, the Court stated it was unclear whether Plaintiffs purchased their home from a “builder as defined in the statute.” Plaintiffs now seek to add a cause of action for negligence because there is a dispute as to whether they may bring a claim under this theory. (Mot., Makarczyk Decl. ¶¶ 8, 17.)

Counsel provides only a conclusory statement that “it was not until later that Plaintiffs’ counsel determined that there existed a need to amend,” despite the Court’s identification of this issue in 2018, and the fact that destructive testing occurred at the property on October 22, 2019. (Mot., Makarczyk Decl. ¶¶ 15, 19.) Unfortunately, there is no explanation as to why the request for amendment was not made earlier as required under rule 3.1324(b) of the California Rules of Court. Given that this case is more than four years old, it is easy for the Court to find prejudice to the opposing parties, as they will be forced to conduct discovery, prepare dispositive motions and/or prepare for trial on a claim that was known to Plaintiffs more than two years ago, but not alleged.

Further, it is not clear whether the proposed negligence claim is time-barred. Code of Civil Procedure section 338, provides a three-year statute of limitations for claims based upon a liability created by statute or a claim for injury to real property. (Code Civ. Proc., § 338, subds. (a), (b).) “A plaintiff whose complaint shows on its face that his or her claim would be barred by the applicable orthodox statute of limitations, and who intends to rely on the discovery rule to toll the orthodox limitation period, must specifically plead facts which show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.” (Camsi IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1536-1537, quotations marks omitted.) Plaintiffs purchased the property in 2003, and Defendants performed the alleged work at issue shortly thereafter, although a specific date is not alleged. The proposed sixth cause of action for negligence includes no facts which would allow the Court to conclude tolling applies here; nor is it the Defendant’s burden to show the claim is not timely, as Plaintiffs suggest. (See Reply, p. 2, lines 17-21.) 

Accordingly, the Court finds amendment is not proper here, as Plaintiffs fail to explain the delay in moving to allege this new cause of action, prejudice to other parties is apparent where a case such as this one is more than four years old, and the Court is not convinced that the proposed amendment is within the applicable statute of limitations. As such, Plaintiffs Samuel Cohen and Galia Cohen’s Motion to File Fifth Amended Complaint is DENIED.

Defendant Hilmor Development Corporation’s Motion for Summary Judgment

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivisupra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

Here, Hilmor moves for summary judgment on the ground it was dissolved on July 5, 2011 and there were no assets to be distributed, nor were any assets distributed to shareholders. Hilmor argues the insurance carrier for Hilmor at the time of the alleged events went under liquidation and was a non-admitted carrier at the time of liquidation; thus, there are no assets upon which Plaintiffs can enforce any judgment they may obtain. 

At the outset, this motion suffers from certain procedural defects which preclude the Court from granting this motion. 

Hilmor refers to a purported request for judicial notice, but no such request was filed with the Court. This is important because Hilmor relies on the documents attached to this request, which have not been provided to the Court, so the Court cannot consider those documents as evidence supporting the motion. (See Cal. Rules of Court, rule 3.1306(c).) The other documents relied upon by Hilmor in support of their motion are attached to the declaration of Joseph Kaplan, a declaration which is unsigned. Though the declaration states a signed version would be lodged on or before May 13, 2019, the Court’s case file shows no such signed version. Thus, none of the evidence included as part of this declaration can be considered by the Court in the context of this motion. (See Cal. Rules of Court, rule 3.1306(a).)

Further, even if the Court had proper evidence before it for this motion, the motion does not address the existence of a triable issue of material fact as to any of the causes of action in the Fourth Amended Complaint. Instead, Hilmor argues it has no recoverable assets to satisfy any damages Plaintiffs claim to have sustained, and that there is no insurance to indemnify Hilmor, so judgment must be entered in Hilmor’s favor. This position is unsupported by legal authority. California Corporations Code § 2011, cited by Hilmor, deals with enforcement of causes of action against dissolved corporations. Interestingly, it does not state a cause of action cannot be maintained as against a dissolved corporation.

A motion for summary judgment or adjudication examines whether liability can be established; it does not examine whether a judgment can be enforced if liability is established. Whether a party can successfully enforce a judgment, or the way they will do so, is not properly considered in the context of a dispositive motion. Finally, “a court has authority to impose liability under a judgment on an alter ego who has control of the litigation,” and the judgment may be amended at any time, regardless of whether an alter ego allegation was made in the underlying lawsuit. (Misik v. D’Arco (2011) 197 Cal.App.4th 1065, 1074-1075.) A defendant’s purported lack of assets or insurance is simply irrelevant when the Court is considering whether liability can be or has been established. 

As such, Defendant Hilmor Development Corporation’s Motion for Summary Judgment is DENIED.

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