On 04/14/2010 SAMUEL NEVARREZ filed a Personal Injury - Elder/Dependant Adult Abuse lawsuit against SAN MARINO SKILLED NURSING AND WELLNESS. This case was filed in Los Angeles County Superior Courts, Glendale Courthouse located in Los Angeles, California. The Judges overseeing this case are C. EDWARD SIMPSON, LAURA A. MATZ and SAMANTHA P. JESSNER. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Los Angeles, California
C. EDWARD SIMPSON
LAURA A. MATZ
SAMANTHA P. JESSNER
SCHROEDER NEVARREZ SUSAN
COUNTRY VILLA SERVICE CORP
COUNTRY VILLA SERVICE CORPORATION
SAN MARINO SKILLED NURSING AND WELLNESS
COUNTRY VILLA HEALTH SERVICES
RECHNITZ SHLOMO DOE 4
GARRET LOUBE AN INDIVIDUAL DOE 3
PARK MARINO CONVALESCENT CENTER INC.
SMSN HOLDINGS LLC DOE 2
SAN MARINO SKILLED NURSING
SAN MARINO SKILLED NURSING AND WELLNESS
ESTATE OF SUSAN SCHROEDER
JEFFER MANGELS BUTLER & MITCHELL LLP
ALBRECHT SCOTT R.
SAMUELS GREEN & STEEL LLP
MORAN MICHAEL F.
YEE JAMES E.
DEUTSCH JOEL D.
NEIL DYMOTT FRANK MCFALL TREXLER
WILSON WILLIAM C.
JEFFERS MANGEL BUTLER & MARMARO
NEIL DYMOTT FRANK MCFALL & TREXLER
GARCIA ARTIGLIERE & SCHADRACK
EISENBERG JOSEPH A.
WILSON GETTY LLP
JEFFER MANGELS BUTLER & MITCHELL LLP
3/13/2014: Minute Order
3/13/2014: ORDER TRANSFERRING CASE TO IC COURT AND VACATING ALL FUTURE DATES CALENDARED IN PERSONAL INJURY HUB COURT
3/25/2014: SUBSTITUTION OF ATTORNEY
Notice (OF CONTINUANCE OF MOTION FOR SUMMARY ASJUDICATION HEARING ) Filed by Attorney for DefendantRead MoreRead Less
Declaration (OF JOEL D. DEUTSCH IN SUPPORT OF DEFENDANTS MOTION FOR SUMMARY ADJUDICATION ) Filed by Attorney for DefendantRead MoreRead Less
Mtn for Summary Adjud of Issues Filed by Attorney for DefendantRead MoreRead Less
Order (APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE ) Filed by Attorney for DefendantRead MoreRead Less
Miscellaneous-Other (EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION ) Filed by Attorney for DefendantRead MoreRead Less
Declaration (OF GARRETT LOUBE IN SUPPORT ) Filed by Attorney for DefendantRead MoreRead Less
Declaration (OF SHLOMO RECHNITZ IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION ) Filed by Attorney for DefendantRead MoreRead Less
Reply to Opposition (TO DEFENDANTS' MOTION FOR PROTECT- IVE ORDER ) Filed by Attorney for DefendantRead MoreRead Less
Opposition (TO MOTION FOR PROTECTIVE ORDER ) Filed by Attorney for PlaintiffRead MoreRead Less
Motion (FOR PROTECTIVE ORDER ) Filed by Attorney for DefendantRead MoreRead Less
Opposition (motion ) Filed by Attorney for DefendantRead MoreRead Less
Motion for Preference Filed by Attorney for PlaintiffRead MoreRead Less
Order (TO CONTINUE CMC ) Filed by Attorney for PlaintiffRead MoreRead Less
Stipulation (TO CONTINUE CMC ) Filed by Attorney for PlaintiffRead MoreRead Less
Answer to Complaint Filed Filed by Attorney for DefendantRead MoreRead Less
Proof of Service (by mail on 5/3/10 ) Filed by Attorney for PlaintiffRead MoreRead Less
Proof-Service/Summons (Substituted service ) Filed by Attorney for PlaintiffRead MoreRead Less
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Proof of Service (summons/complaint by mail ) Filed by Attorney for PlaintiffRead MoreRead Less
Complaint FiledRead MoreRead Less
Case Number: GC045033 Hearing Date: May 14, 2021 Dept: E
MOTION TO DISMISS
[CCP §§ 583.310, 583.320(a)(3), 583.410]
Date: 5/14/21 (8:30 AM)
Case: Nevarrez v. San Marino Skilled Nursing 7 Wellness Centre, et al. (GC045033)
Defendants San Marino Skilled Nursing and Wellness Centre, LLC dba San Marino Skilled Nursing and Wellness Centre; SMSN Holdings, LLC; and Shlomo Rechnitz’s Motion to Dismiss Complaint for Failure to Bring Action to Trial is DENIED.
I. Five-Year Rule (CCP § 583.310)
Defendants bring this motion to dismiss this action on the ground that more than five years have elapsed since the commencement of this action. Plaintiff commenced this action on April 14, 2010. Without any exclusions of time, the time to bring this action to trial would be April 14, 2015. (CCP § 583.310.) However, due to Emergency Rule 10 of the California Rules of Court, that date was extended by six months to October 14, 2015. (Cal. R. app. I Emergency Rule 10(a).) As discussed below, due to various time periods excluded from the calculation of the so-called Five Year Rule, the time to bring this matter to trial in accordance with CCP § 583.310 has not yet expired.
A. Pending Appeal of Judgment (919 Days)
After judgment was entered, defendants filed a notice of appeal on August 17, 2011. (Reyna Decl. ¶ 7 & Ex. B.) The remittitur was issued on February 21, 2014. (Reyna Decl. ¶ 9 & Ex. C.) From the filing of the notice of appeal to the issuance of the remittitur, the Court’s jurisdiction to try the action was suspended. (Bergin v. Portman (1983) 141 Cal.App.3d 23, 25-26.) Accordingly, pursuant to CCP § 583.340(a), the period from August 17, 2011 to February 21, 2014 is excluded for purposes of calculating the five-year deadline. No party disputes this 919-day period of exclusion. (Opp. at 6-7; Reply at 4.)
B. Administration of Estate of Susan Schroeder (223 Days)
On March 7, 2014, Susan Schroeder, successor-in-interest to plaintiff Samuel Nevarrez, passed away. (Flint Decl. ¶ 8.) On October 16, 2014, the Probate Court appointed Adam Nevarrez as administrator of the Estate of Susan Schroeder. (Flint Decl. ¶ 11 & Ex. 5.) The period between a plaintiff’s death and the substitution of another plaintiff is excluded from the calculation of the five-year deadline due to the Court’s lack of jurisdiction. (Pham v. Wagner Litho Machinery Co. (1985) 172 Cal.App.3d 966, 969-72.) Although the parties erroneously calculate this period to constitute 233 days, neither party disputes that this period of time (which is actually 223 days) should be excluded from the calculation. (Opp. at 13-14; Reply at 4.)
C. Pending Probate Matter (1,158 Days)
Plaintiff contends that a total of 1,158 days, starting from June 30, 2017, when the Court granted proposed intervenor Hussam Khatib’s Motion for Stay, to August 31, 2020, when the Court lifted the stay due to the resolution of the appeal in Probate Case No. BP155518, should also be included in the calculation of the five-year deadline. (Reyna Decl. ¶ 18 & Ex. J; Flint Decl. ¶ 31 & Ex. 25.)
Defendants contend that this was not a true stay because the parties were still filing documents with the Court and the Court held a trial setting conference. “A complete stay will operate to automatically toll the five-year period. A partial stay will not do so unless it results in a circumstance of impossibility, impracticability, or futility.” (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1087.) “The long-standing judicial understanding of the term stay in the context of the five-year statute is that it refers to those postponements that freeze a proceeding for an indefinite period, until the occurrence of an event that is usually extrinsic to the litigation and beyond the plaintiff's control.” (Gaines, 62 Cal.4th at 1092.)
Here, Khatib’s petition in the Probate Court to be appointed the administrator of the Estate of Susan Schroeder was an extrinsic matter outside of the parties’ control that served to completely stay this action. In the Probate Court, Khatib filed a petition seeking the removal of Adam Nevarrez as Administrator of Schroeder’s Estate on the basis that Adam Nevarrez and his counsel fraudulently induced Khatib to assign and disclaim his interest in this action. (Flint Decl. ¶ 21 & Ex. 16 at ¶¶ 5-7.) Only after the Court of Appeal found that Khatib’s assignment of his interest in this action was valid and affirmed the Probate Court’s denial of Khatib’s fraud claims could the prosecution of this action continue. (Flint Decl. ¶ 29 & Ex. 23 at 15-18.) If the Court of Appeal found that the assignment was invalid, then Khatib would have been the proper plaintiff in this action.
Even though the Court held proceedings while Khatib’s probate matter was pending, the Court only continued the trial setting conference and Khatib’s motion to intervene. (Reyna Decl. ¶¶ 19-27 & Exs. K-Q.) The parties were still prevented from advancing the resolution of this case until the validity of Khatib’s assignment of his interest in this action was determined. The proper plaintiff was not determined until Khatib’s probate matter was resolved. Accordingly, the action was completely stayed from June 30, 2017 to August 31, 2020. Under CCP § 583.340(b), this 1,158-day period is excluded from the calculation of the five-year deadline.
D. October 16, 2020 to December 11, 2020 Stay (55 Days)
Plaintiff also contends that the action was stayed from October 16, 2020 to December 11, 2020, as reflected in the Court’s October 16, 2020 minute order, while Khatib’s motion to intervene was pending. (Flint Decl. ¶¶ 32, 34 & Exs. 26, 28.) The Court agrees. To begin with, this Court explicitly referred to that period of time as a stay of the action. But, more to the point, it was not possible for plaintiff to prosecute the action and bring the matter to trial because the Court declined to set a trial date or let the action proceed further until the matter of Khatib’s motion to intervene was resolved. Cognizant that the five-year deadline might be looming, the Court explicitly stayed the action while awaiting supplemental briefing from the parties and immediately lifted the stay on December 11, 2020, after denying the motion to intervene and setting a trial date.
E. Calculation of Total Excluded Time
For the foregoing reasons, the five-year deadline to bring this action to trial was extended by 2,355 days – 919 days while the appeal of the judgment in this action was pending, 223 days while the Estate of Susan Schroeder was being administered, 1,158 days while Khatib’s probate matter to be appointed as administrator of the Estate of Susan Schroeder was pending, and 55 days while the Court stayed the action and declined to set a trial date while Khatib’s motion to intervene remained unresolved. 2,355 days from October 14, 2015, the original five-year trial deadline (extended per Emergency Rule 10), is Monday, March 28, 2022. Accordingly, the five-year time to bring this action to trial has not expired.
II. Three-Year Rule (CCP § 583.320(a)(3))
Defendants also maintain that this action is barred by the three-year rule under CCP § 583.320(a)(3). Under CCP § 583.320(a)(3), if a judgment is reversed, plaintiff has three years after the remittitur is filed in the trial court to bring this action to trial.
As stated above, the remittitur was filed on February 21, 2014. (Reyna Decl. ¶ 9 & Ex. C.) Accordingly, under CCP § 583.320(a)(3), without any extensions of time, plaintiff had until February 21, 2017 to bring this action to trial. However, due to Emergency Rule 10 of the California Rules of Court, that date was extended by six months to August 21, 2017. (Cal. R. app. I Emergency Rule 10(b).)
For the reasons discussed above, the following time-periods should also be excluded from the three-year deadline to bring this action to trial after filing of the remittitur: (1) 223 days when the Estate of Susan Schroeder was being administered; (2) 1,158 days when Khatib’s probate matter was pending; and (3) 55 days while the Court stayed the action pending Khatib’s motion to intervene. Thus, a total of 1,436 should be excluded from the calculation. 1,436 days from August 21, 2017, is Tuesday, July 27, 2021. Accordingly, the three-year deadline to bring this action to trial has not expired.
Further, under CCP § 583.320(b), the five-year deadline of March 28, 2022 supersedes the three-year deadline July 27, 2021. (CCP § 583.320(b) [“Nothing in this section requires that an action again be brought to trial before expiration of the time prescribed in Section 583.310”].) Accordingly, so long as trial occurs prior to March 28, 2022 (assuming no further periods of exclusion), dismissal under the three-year deadline in CCP § 583.320(a)(3) would not be required.
III. Discretionary Power to Dismiss (CCP § 583.410)
Defendants also contend that the Court should dismiss this action pursuant to the discretion allowed under CCP § 583.410(a). The Court may not exercise its discretion unless two years after the commencement of the action have passed or, if judgment has been reversed and remanded for a new trial, two years after the filing of the remittitur have passed. (CCP §§ 583.420(a)(2)(B) [pursuant to Cal. Rule of Court 3.1340(a)], (a)(3)(B).)
The Court declines to exercise its discretion to dismiss this action. Prosecution of this action was delayed by 2,355 days, i.e., nearly six and one half years, due to the appeal of the judgment in this action, the administration of the Estate of Susan Schroeder, and third-party Hussam Khatib efforts to intervene in this action. These factors were beyond plaintiff’s control. To the extent that plaintiff may have acquiesced to the continuance of trial or that plaintiff did not promptly add SMSN Holdings, LLC and Shlomo Rechnitz as defendants, such delay was outweighed by the other factors outside of plaintiff’s control. Moreover, even though more than a decade has passed since the filing of this action, discovery in this action is complete, and a trial transcript can serve to refresh the memories of witnesses or potentially be admitted in lieu of testimony from an unavailable witness. Accordingly, any delay in bringing this action to a second trial does not unduly prejudice defendants.
The motion is DENIED.
Case Number: GC045033 Hearing Date: December 11, 2020 Dept: E
MOTION FOR LEAVE TO INTERVENE
[CCP § 387]
Date: 12/11/20 (2:00 PM)
Case: Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC (GC045033)
Proposed Intervenor Hussam M. Khatib’s Motion to Intervene and for Leave to File Complaint in Intervention is DENIED.
Plaintiff Adam Nevarrez’s requests for judicial notice (“RJN”) as to Exhibits 1, 3, 4, 6, 7, and 9 and supplemental requests for judicial notice as to Exhibits 2, 3, 4, 6, and 7 are GRANTED, pursuant to Evidence Code § 452(d).
Plaintiff’s requests for judicial notice as to Exhibits 2, 5, and 8 and supplemental requests for judicial notice as to Exhibits 1 and 5 are GRANTED, but only for the existence of the documents, not the truth of the matters asserted therein. (Evid. Code § 452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.)
On March 13, 2017, third party Hussam M. Khatib filed this motion seeking leave to intervene in this action. Khatib argued that, under prior successor in interest Susan Schroeder’s Will, he is the designated executor and majority beneficiary of her Estate, the primary asset of which was and is this lawsuit, and that through a series of misrepresentations, the attorneys representing plaintiff in this matter, who previously represented decedent, convinced Khatib to refuse executorship and disclaim his interest in the Estate of Susan Schroeder (“Estate”). Khatib also requested a stay in this matter pending determination of Khatib’s petition in a probate matter for an order appointing Khatib the executor and administrator of the Estate and recognizing him as a beneficiary.
This motion has been continued several times since April 2017 to permit Khatib to pursue such relief in the Probate Court.
On October 5, 2018, after a trial, the Probate Court determined that Khatib’s disclaimer of all rights under Schroeder’s Will was valid and that Adam Nevarrez would remain as administrator of the Estate. (RJN Ex. 9.) On June 1, 2020, the Court of Appeal reversed, finding that the declaration disclaiming all rights under Schroeder’s Will was invalid, but that Khatib’s “Authorization,” wherein he assigned his right to recover money in this action in exchange for a percentage of the recovery in this action remains valid. (RJN Ex. 1 [“Opinion”] at 14-15.) The Court of Appeal declined to reinstate Khatib as executor, leaving it to the Probate Court to decide. (Opinion at 14-16.)
This motion was re-set for hearing on October 16, 2020. On that date, the Court continued the hearing to allow plaintiff Adam Nevarrez and Khatib to present supplemental briefing regarding whether Adam Nevarrez is entitled to continue prosecuting this action either as the assignee of this “chose in action” or as the Administrator of the Estate, regardless of whether Khatib is reinstated by the Probate Court as the executor of the Estate. The Court ordered simultaneous supplemental briefing to be filed and served no later than November 6, 2020. The Court ordered simultaneous responses to be filed and served no later than November 20, 2020.
Based on the supplemental briefing, plaintiff and Khatib agree that the Court of Appeal found that Khatib assigned his interest in this “chose in action,” i.e. any monetary recovery in this action under Civil Code § 953, to the Nevarrez family. (Opinion at 14-15; Flint Decl. ¶ 10 & Ex. B.) However, plaintiff and Khatib dispute whether the Estate owns the chose in action after Khatib’s assignment.
The Court of Appeal held that “invalidation of the disclaimer [will not] return the retirement home chose in action to the estate, as Khatib assigned that chose in action to the Nevarrez family.” (Opinion at 14-15.) In another part of the opinion, the Court of Appeal made note of “Khatib’s decision to assign the Schroeder estate’s chose in action to the Nevarrez family.” (Opinion at 15.) Such language from the opinion could be read to suggest the Court of Appeal concluded that Khatib, as both the beneficiary and administrator of the Estate, assigned or transferred the chose in action from the estate to the Nevarrez family. If that is the case, the strength of Khatib’s request for intervention here would seem to be weaker, as the right to this suit would belong to the Nevarrez family and Khatib’s only interest in the suit would be his right to a percentage of the Nevarrez family’s recovery pursuant to the Authorization.
Khatib thus characterizes such quoted language from the Court of Appeal’s opinion as dicta. (Khatib Supp. Brief at 3:24-26.) Khatib may very well be right on this point. To begin with, deciding whether the chose in action remained property of the Estate or was assigned to the Nevararez family would not have mattered to the Court of Appeal’s conclusion that Khatib validly assigned his interest in the lawsuit in exchange for a percentage of any recovery pursuant to the Authorization. (See Wishnev v. The Northwestern Mut. Life Ins. Co. (2019) [“It is, of course, ‘axiomatic that a decision does not stand for a proposition not considered by the court’”].) Indeed, other language from the opinion demonstrates the Court of Appeal understood Khatib, as a beneficiary of the Estate, merely assigned his interest as a beneficiary of the Estate’s chose in action to the Nevarrez family, stating: “The agreement by which Khatib assigned (and thus accepted) his interest in the Schroeder estate was negotiated over the course of several months, and went into effect before any party signed the Authorization and before Khatib disclaimed the interest.” (Opinion at 14.) Indeed, Adam Nevarrez’s conduct thus far—namely, seeking appointment as Administrator of the Estate and litigating this matter in his capacity as administrator—surely reflects his belief that this chose in action remains part of the Estate (notwithstanding his sudden about-face when this Court posited during the October 16, 2020 hearing whether the Court of Appeal found otherwise).
Ultimately, the question of whether the Estate or the Nevarrez family is the proper plaintiff is not before this Court. More to the point, resolution of that issue does not affect the outcome of the motion here. Whether the chose in action was assigned to the Nevarrez family or remains part of the Estate, Khatib’s interest in this litigation remains the same pursuant to the Authorization, i.e., the right to a percentage of any recovery. As such, Khatib’s interests in this action are adequately represented by plaintiff Adam Nevarrez. Both Khatib and plaintiff share the same interest – to obtain a monetary recovery against the defendants in this action. Plaintiff has an interest to maximize the monetary recovery in this action, which would increase Khatib’s share of the recovery. (Flint Supp. Decl. ¶ 10 & Ex. B.) Accordingly, given the nature of Khatib’s interest in this action, the Court finds that intervention is not warranted because his interests are adequately represented by plaintiff. (CCP § 387(d)(1)(B).)
The Court also notes that, in the proposed Complaint in Intervention, Khatib contends that he is the proper plaintiff because Adam Nevarrez and his counsel fraudulently induced him to relinquish his interest in this action by misrepresenting the value of the assets in the Estate. (Proposed Complaint in Intervention ¶¶ 23-33.) This issue was litigated in the Probate Court. (Pls. RJN Ex. 9.) The Probate Court found no basis to remove plaintiff as administrator of the Estate, award Khatib damages, or invalidate the disclaimer based on fraud. (Pls. RJN Ex. 9.) The Court of Appeal affirmed the Probate Court’s denial of Khatib’s fraud claims. (Opinion at 16-18.) Khatib’s intervention would thus unnecessarily enlarge the issues and tread on plaintiff’s right to conduct the lawsuit, which the Court in its discretion declines to allow. (Bame v. City of Del Mar (2001) 86 Cal.App.4th 1346, 1364.)
The Court further notes that Khatib has brought a motion in the Probate Court to be reinstated as executor of the Estate, which is set for hearing on March 25, 2021. (Khatib Ex. C.) However, the results of that motion are not dispositive of whether intervention is warranted. Based on the October 14, 2014 appointment of Adam Nevarrez as the Administrator of the Estate of Susan Schroeder by the Probate Court, Adam Nevarrez is currently the personal representative of decedent Schroeder in this action. (12/5/14 Minute Order; Flint Supp. Decl. ¶ 7.) As noted above, Adam Nevarrez shares Khatib’s interest in maximizing recovery in this litigation and will continue to share that interest if the Probate Court denies Khatib’s motion and allows Adam Nevarrez to remain as the Administrator. Likewise, if the Probate Court grants Khatib’s motion and reinstates him, then, as the new Administrator of the Estate, Khatib will simply continue to pursue that same shared interest of maximizing recovery in this litigation.
For all the foregoing reasons, the Court declines to permit Khatib’s intervention in this action. The motion is DENIED.
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