This case was last updated from Los Angeles County Superior Courts on 06/11/2019 at 01:01:34 (UTC).

SOCORRO GUTIERREZ ET AL VS EDWARD KIM ET AL

Case Summary

On 03/30/2016 SOCORRO GUTIERREZ filed a Contract - Other Contract lawsuit against EDWARD KIM. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DANIEL S. MURPHY and YOLANDA OROZCO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5547

  • Filing Date:

    03/30/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DANIEL S. MURPHY

YOLANDA OROZCO

 

Party Details

Petitioners, Plaintiffs and Cross Defendants

GUTIERREZ CYNTHIA Y

OROZCO MELANIE S

GUTIERREZ SOCORRO

GUTIERREZ KARINA

GUTIERREZ DANIEL

GUTIERREZ FREDDY

VELASQUEZ JORGE LUIS

DE LA CRUZ TOMAS

FRAUSTO ARACELY

ISLAS MONESERRAT

RAMOS SANDRA MARITZA

MARTINEZ OSMANY SALVADOR VALENCIA

Respondents, Defendants, Cross Defendants and Cross Plaintiffs

KANG SEUNG

CHO GINNIE

KIM EDWARD

GUTIERREZ SOCORRO

GUTIERREZ DANIEL

GUTIERREZ FREDDY

BEHREND DAVID

PARTIDA ISRRAEL

ANDRES ROBERTO

KIM RAY

FUENTES XOCHITL

107 More Parties Available

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

STARK FRIEDMAN & CHAPMAN LLP

STARK PATRICK J.

Defendant Attorneys

MORTENSEN JAMES D.

BAKER JOHN H.

PLANTE BRIAN C.

Cross Plaintiff Attorney

BULLOCK DONNA

Cross Defendant Attorneys

LIN PAUL P.

LIM S. YOUNG

 

Court Documents

EX PARTE APPLICATION FOR AN ORDER ADVANCING THE FEBRUARY 8, 2018 HEARING ON DEFENDANTS' UNOPPOSED MOTION TO CONSOLIDATE CASES, TO CONTINUE TRIAL, TO EXTEND DISCOVERY AND OTHER TRIAL RELATED DATES

2/2/2018: EX PARTE APPLICATION FOR AN ORDER ADVANCING THE FEBRUARY 8, 2018 HEARING ON DEFENDANTS' UNOPPOSED MOTION TO CONSOLIDATE CASES, TO CONTINUE TRIAL, TO EXTEND DISCOVERY AND OTHER TRIAL RELATED DATES

Minute Order

2/8/2018: Minute Order

NOTICE OF RULING

6/6/2018: NOTICE OF RULING

DEMURRER TO SECOND AMENDED COMPLAINT IN VARGAS, ET AL. V. KIM, ET AL. (BC667835)

7/13/2018: DEMURRER TO SECOND AMENDED COMPLAINT IN VARGAS, ET AL. V. KIM, ET AL. (BC667835)

PROOF OF SERVICE SUMMONS

9/12/2018: PROOF OF SERVICE SUMMONS

Notice and Acknowledgment of Receipt

12/20/2018: Notice and Acknowledgment of Receipt

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL

6/10/2016: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL

6/10/2016: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL

6/10/2016: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL

CASE MANAGEMENT ORDER

10/17/2016: CASE MANAGEMENT ORDER

PROOF OF SERVICE SUMMONS

12/23/2016: PROOF OF SERVICE SUMMONS

DECLARATION RE CROSS-COMPLAINANTS' NOTICE OF SETTLEMENT WITH CROSS-DEFENDANT VPMI

4/24/2017: DECLARATION RE CROSS-COMPLAINANTS' NOTICE OF SETTLEMENT WITH CROSS-DEFENDANT VPMI

REQUEST FOR DISMISSAL

5/3/2017: REQUEST FOR DISMISSAL

REQUEST FOR ENTRY OF DEFAULT

5/11/2017: REQUEST FOR ENTRY OF DEFAULT

CROSS-DEFENDANTS JEANNE F. SALAMON AND ADVANCED PESION INC.'S REPLY TO THE OPPOSITION OF DEFENDANTS AND CROSS-COMPLAINTS YOUNG HEE KIM AND HELEN LEE TO MOTION FOR GOOD FAITH SETTLEMENT

12/4/2017: CROSS-DEFENDANTS JEANNE F. SALAMON AND ADVANCED PESION INC.'S REPLY TO THE OPPOSITION OF DEFENDANTS AND CROSS-COMPLAINTS YOUNG HEE KIM AND HELEN LEE TO MOTION FOR GOOD FAITH SETTLEMENT

DECLARATION OF PATRICK STARK; ETC.

12/7/2017: DECLARATION OF PATRICK STARK; ETC.

EX PARTE APPLICATION FOR AN ORDER: 1. CONTINUING TRIAL AND FINAL STATUS CONFERENCE; 2. TO EXTEND ALL STATUTORY TRIAL RELATED DATES AND DISCOVERY CUT-OFF AND EXPERT WITNESS DESIGNATION PER CODE; ETC.

12/11/2017: EX PARTE APPLICATION FOR AN ORDER: 1. CONTINUING TRIAL AND FINAL STATUS CONFERENCE; 2. TO EXTEND ALL STATUTORY TRIAL RELATED DATES AND DISCOVERY CUT-OFF AND EXPERT WITNESS DESIGNATION PER CODE; ETC.

DEFENDANTS JEANNE F. SALAMON AND ADVANCED PENSION PROGRAMS, INC.'S NOTICE OF MOTION AND MOTION FOR GOOD FAITH SETTLEMENT

12/12/2017: DEFENDANTS JEANNE F. SALAMON AND ADVANCED PENSION PROGRAMS, INC.'S NOTICE OF MOTION AND MOTION FOR GOOD FAITH SETTLEMENT

306 More Documents Available

 

Docket Entries

  • 04/22/2019
  • at 09:00 AM in Department 31, Yolanda Orozco, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 04/19/2019
  • Answer; Filed by Helen Lee (Cross-Complainant); Young Hee Kim (Defendant)

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  • 04/19/2019
  • Cross-Complaint; Filed by Young Hee Kim (Cross-Complainant); Helen Lee (Cross-Complainant)

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  • 04/19/2019
  • Answer; Filed by Helen Lee (Cross-Complainant); Young Hee Kim (Cross-Defendant)

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  • 04/12/2019
  • at 08:30 AM in Department 31, Yolanda Orozco, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 04/12/2019
  • Minute Order ( (Final Status Conference)); Filed by Clerk

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  • 04/09/2019
  • at 08:30 AM in Department 31, Yolanda Orozco, Presiding; Ruling on Submitted Matter

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  • 04/09/2019
  • Certificate of Mailing for (Minute Order (Ruling on Submitted Matter) of 04/09/2019); Filed by Clerk

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  • 04/09/2019
  • Minute Order ( (Ruling on Submitted Matter)); Filed by Clerk

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  • 04/03/2019
  • at 08:30 AM in Department 31, Yolanda Orozco, Presiding; Hearing on Motion for Summary Judgment - Held - Taken under Submission

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691 More Docket Entries
  • 06/08/2016
  • CASE MANAGEMENT STATEMENT

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  • 06/08/2016
  • Minute order entered: 2016-06-08 00:00:00; Filed by Clerk

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  • 06/08/2016
  • Case Management Statement; Filed by Plaintiff/Petitioner

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  • 06/08/2016
  • CIVIL DEPOSIT

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  • 04/18/2016
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 04/18/2016
  • ORDER TO SHOW CAUSE HEARING

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  • 04/18/2016
  • OSC-Failure to File Proof of Serv; Filed by Clerk

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  • 04/18/2016
  • Notice of Case Management Conference; Filed by Clerk

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  • 03/30/2016
  • COMPLAINT FOR: 1) BREACH OF IMPLIED WARRANTY OF HABITABILITY; ETC

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  • 03/30/2016
  • Complaint; Filed by Cynthia Y Gutierrez (Plaintiff); Melanie S Orozco (Plaintiff); Karen L. Orozco (Plaintiff) et al.

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Tentative Rulings

b"

Case Number: BC615547 Hearing Date: August 31, 2021 Dept: 31

PLAINTIFFS' MOTION TO ENFORCE SETTLEMENT IS DENIED.

Background

\r\n\r\n

This action arises from a landlord-tenant dispute,\r\nwherein plaintiffs Socorro Gutierrez, et al. (collectively, the “Plaintiffs”), alleged\r\nvarious inhabitable conditions within their rental units at 716 S. Westlake\r\nAvenue, Los Angeles, California, against the defendant-owners of the latter\r\napartment building.

\r\n\r\n

On March 30, 2016, the Plaintiffs filed this action’s\r\ncomplaint, and subsequently filed the Second Amended Complaint (“SAC”) against\r\nDefendants Edward Kim, Ginnie Cho, Seung Kang, Jung J. Kang, Young Hee Kim,\r\nHelen Lee, and Does 1 through 100 on June 4, 2018. The operative complaint\r\nasserts causes of action for:

\r\n\r\n

(1) Breach\r\nof Implied Warranty of Habitability;

\r\n\r\n

(2) Breach\r\nof Statutory Warranty of Habitability;

\r\n\r\n

(3) Breach\r\nof Covenant of Quiet Enjoyment;

\r\n\r\n

(4) Negligence;\r\n

\r\n\r\n

(5) Violation\r\nof Civil Code sections 1942.4 and 1942.5;

\r\n\r\n

(6) Nuisance;\r\nand

\r\n\r\n

(7) Violations\r\nof Unfair Competition Law.

\r\n\r\n

On March 3, 2021, the Plaintiffs and defendants Edward\r\nKim, Ginnie Cho, and Seung Kang (collectively, the “Defendants”) settled the underlying\r\naction/matter through mediator Judge Richard Stone, Ret. (the “Settlement\r\nAgreement”).

\r\n\r\n

However, on July 22, 2021, the Plaintiffs filed the\r\npending Motion To Enforce Settlement And For Judgment Against Defendants\r\nPursuant To Code Of Civil Procedure § 664.6. The Plaintiffs allege\r\nthat, pursuant to the Settlement Agreement, they are entitled to receive\r\npayment of $1,720,000 from the Defendants in exchange for a dismissal and\r\nrelease. Plaintiffs allege they timely and fully performed under the Settlement\r\nAgreement. Further, the Plaintiffs allege that the Defendants each breached the\r\nSettlement Agreement by failing to pay the settlement when the Settlement Agreement\r\nwas fully executed by the Plaintiffs.

\r\n\r\n

To date, the Defendants have not filed any opposition\r\npapers to the pending motion.

\r\n\r\n

Legal Standard

\r\n\r\n

California Code of Civil Procedure (“Code Civ. Proc.”),\r\nsection 664.6, provides a summary procedure that enables judges to enforce a\r\nsettlement agreement by entering a judgment pursuant to the terms of the\r\nparties’ settlement. In particular the statute provides:

\r\n\r\n

(a) If\r\nparties to pending litigation stipulate, in a writing signed by the parties\r\noutside of the presence of the court or orally before the court, for settlement\r\nof the case, or part thereof, the court, upon motion, may enter judgment\r\npursuant to the terms of the settlement. If requested by the parties, the court\r\nmay retain jurisdiction over the parties to enforce the settlement until\r\nperformance in full of the terms of the settlement.

\r\n\r\n

(b) For\r\npurposes of this section, a writing is signed by a party if it is signed by any\r\nof the following:

\r\n\r\n

(1) The\r\nparty.

\r\n\r\n

(2) An\r\nattorney who represents the party.

\r\n\r\n

(3) If the\r\nparty is an insurer, an agent who is authorized in writing by the insurer to\r\nsign on the insurer's behalf.[1]\r\n

\r\n\r\n

Strict compliance with the statutory\r\nrequirements is necessary before a court can enforce a settlement agreement\r\nunder this statute. (Sully-Miller Contracting Co. v. Gledson/Cashman\r\nConstruction, Inc. (2002) 103 Cal.App.4th 30, 37.)

\r\n\r\n

“If parties to pending\r\nlitigation stipulate, in a writing signed by the parties outside the\r\npresence of the court or orally before the court, for settlement of the case,\r\nor part thereof, the court, upon motion, may enter judgment pursuant to\r\nthe terms of the settlement.” (Code Civ. Proc., § 664.6.) The trial court\r\nmay enter judgment pursuant to a stipulated agreement to settle in one of two\r\nways: (1) in a writing signed by the parties; or (2) by oral agreement made\r\n“before the court.” (Murphy v. Padilla (1996) 42 Cal.App.4th\r\n707, 711-12.) If, however, there are disputed facts on a motion to enforce a\r\nsettlement agreement pursuant to section 664.6, the trial court has the\r\nauthority to determine whether the parties have entered into a valid and\r\nbinding settlement of all or part of the case. (In re Marriage of\r\nHasso (1991) 229 Cal.App.3d 1174; Corkland v. Boscoe (1984)\r\n156 Cal.App.3d 989.)

\r\n\r\n

The ultimate issue whether\r\nthe parties formed an enforceable contract, since a settlement\r\nagreement is a contract, and the legal principles which apply to contracts\r\ngenerally apply to settlement contracts. (Weddington Productions, Inc.\r\nv. Flick (1998) 60 Cal.App.4th 793, 815 [Rev. Denied 4/22/98].) \r\nThe essential element of any contract is “consent,” which must be mutual, and\r\nwhose existence is determined by objective rather than subjective criteria,\r\ni.e., what the outward manifestations of consent would lead a reasonable person\r\nto believe. (Id. at 811.)

\r\n\r\n

Discussion

\r\n\r\n

The Settlement\r\nAgreement Has Not Been Signed by Defendants

\r\n\r\n

Here, the\r\nPlaintiffs move the Court for an order enforcing the Settlement Agreement and\r\nfor judgment against the Defendants for their failure to comply with the terms\r\nof the Settlement Agreement, etc. (Code Civ. Proc., § 664.6.)

\r\n\r\n

To begin\r\nwith, the Plaintiffs allege that on March 3, 2021, they settled the underlying\r\naction/matter with the Defendants per the notice of settlement provided by the\r\nmediation Judge Richard Stone, Ret. (Plaintiffs’ Motion, Declaration of\r\nChristofer R. Chapman (“Chapman Decl.”), ¶ 3; Id. Exh. A (for e-mail\r\nconfirming settlement).)

\r\n\r\n

Next,\r\nPlaintiff’s attorney of record, Christofer R. Chapman (“Chapman”), provides in\r\nhis declaration that the parties signed the Settlement Agreement, such that it\r\nis a valid contract enforceable against the Defendants. (Chapman Decl., Exh. B,\r\npp. 12–20 ; Id., Exh. C, pp. 12–20.)

\r\n\r\n

However,\r\nthe Exhibits attached to the Chapman Decl. reflect that the Settlement\r\nAgreement has been signed only by the Plaintiffs, individually, and Plaintiffs’\r\nattorney(s) of record. (Id.) The Settlement Agreement, though, has not\r\nbeen signed by any of the individual Defendants and/or their attorney(s) of\r\nrecord, as required under Code Civ. Proc., section 664.6(b). Hence, the record reflects\r\nthat the parties did not form an enforceable contract, since the\r\nDefendants did not sign/consent to the Settlement Agreement. In effect,\r\nthe Settlement Agreement cannot be enforced against the Defendants. (Code Civ.\r\nProc., § 664.6(a).)

\r\n\r\n

Accordingly,\r\nthe Court denies the Plaintiffs Motion To Enforce Settlement And For\r\nJudgment Against Defendants Pursuant To Code Of Civil Procedure § 664.6.

\r\n\r\n

Conclusion

\r\n\r\n

Therefore, the Court DENIES Plaintiffs Socorro Gutierrez,\r\net al.’s Motion To Enforce Settlement And For Judgment Against Defendants\r\nPursuant To Code Of Civil Procedure § 664.6. The parties are ordered to appear at the\r\nhearing on this Motion to discuss the setting of a trial date.

\r\n\r\n

Moving party to give notice.

\r\n\r\n

The parties are strongly encouraged to attend all\r\nscheduled hearings virtually or by audio. Effective July 20, 2020, all matters\r\nwill be scheduled virtually and/or with audio through the Court’s\r\nLACourtConnect technology. The parties are strongly encouraged to use\r\nLACourtConnect for all their matters. All masking protocols will be observed at\r\nthe Courthouse and in the courtrooms.

\r\n\r\n

\r\n\r\n
\r\n\r\n
\r\n\r\n\r\n\r\n
\r\n\r\n

[1] Code\r\nCiv. Proc., § 664.6(a)–(b).

\r\n\r\n

\r\n\r\n
\r\n\r\n
"b'

Case Number: BC615547 Hearing Date: July 8, 2021 Dept: 31

PETITIONS FOR MINORS COMPROMISE ARE GRANTED.Background

Plaintiffs Socorro Gutierrez, et. al. filed the instant action on March 30, 2016, and filed the Second Amended Complaint against Defendants Edward Kim, Ginnie Cho, Seung Kang, Jung J. Kang, Young Hee Kim, Helen Lee and DOES 1 through 100 on June 4, 2018. The operative complaint asserts causes of action for:

(1) Breach of Implied Warranty of Habitability;

(2) Breach of Statutory Warranty of Habitability;

(3) Breach of Covenant of Quiet Enjoyment;

(4) Negligence;

(5) Violation of Civil Code sections 1942.4 and 1942.5;

(6) Nuisance; and

(7) Violations of Unfair Competition Law.

Defendants were the owners of the subject apartment building, which was constructed before 1978 and contains more than two dwelling units, and therefore is subject to the Los Angeles Rent Stabilization Ordinance. (SAC ¶ 4.) The complaint alleges that Defendants failed to correct substandard conditions concerning electrical and plumbing deficiencies, and failed to maintain the building free from cockroaches, flea, mite, bedbug and other vermin infestation. (SAC ¶¶ 11-12(c).) Their injuries consisted of bedbug bites, lack of sleep, and allergies.

The two Petitions to Approve Minors’ Compromises were filed on June 14, 2021, and June 17, 2021. The Petitions concern 24 minors.

Two Petitions were filed, and appear to have the same information. The June 14, 2021 filing contains illegible pages, due to a number of letters not showing up in many words on the attachments. The June 17, 2021 filing appears to have corrected those errors and presents legible attachments. The Court reviews the June 17, 2021 filing of the Petition.

Legal Standard

“When a minor…is a party, that person shall appear by either a guardian or conservator of the estate or by guardian ad litem…in which the action or proceeding is pending.” (Code Civ. Proc. § 372.)

“The guardian ad litem shall have power, with the approval of the court…to compromise the same, to agree to the order or judgment entered therein for or against the persons for whom the guardian ad litem was appointed.” (Code Civ. Proc. § 373.5)

The following forms must be submitted: Petition (MC-350); Proposed Order (MC-351); required supporting documents as indicated on the Petition; and the Order to Deposit Money into Blocked Account if Petitioner so proposes to deposit funds into a blocked account.

Discussion

Settlement for Minor Claimants

The settlement for each of the minor claimants is as follows: the settlement amount is $5,000.01, less case costs ($163.22) and attorney’s fees at 25 percent ($1,209.20), such that the balance amounts to $3,627.59, which will be deposited in a blocked account with JP Morgan Chase Bank. (MC-350 ¶ 11.)

The net balance of $3,627.59 will be deposited in insured accounts subject to withdrawal only upon the authorization of the Court.

The Petition was signed by Karina Fuentes, Guadalupe Mendez, Sarai Diaz, Monica Aceves, Karen Orozco, Claudia Arita, Amalia Andres, Elena Francisco, Jesus Isla Vargas, Jocelyn Sandoval, Maria Perez Serrano, Adan Reyes Diaz and Humberta Lozano.

Each of the Petitioners is Guardian ad Litem for 24 minors as follows:

· Karina Fuentes is the Guardian ad Litem for:

o (1) Xochitl Fuentes

o (2) Xiomara Fuentes

· Guadalupe Mendez is the Guardian ad Litem for:

o (3) Monserrat Islas

· Saria Diaz is the Guardian ad Litem for:

o (4) Daphne Islas

o (5) Ricky Zayn Islas

· Monica Aceves is the Guardian ad Litem for:

o (6) Diane Paredes

o (7) Geraldine Paredes

o (8) Jared Paredes

o (9) Jimena Partida

· Karen Orozco is the Guardian ad Litem for:

o (10) Jayden Orozco

· Claudia Arita is the Guardian ad Litem for:

o (11) Cesar Antonio Portillo

o (12) Henry Alexander Portillo

· Amalia Andres is the Guardian ad Litem for:

o (13) Matthew Juan

o (14) Ashley Andres

o (15) Henry Paxtor Andres

· Elena Jose Francisco is the Guardian ad Litem for:

o (16) Miguel Tomas Jose

· Jesus Isla Vargas is the Guardian ad Litem for:

o (17) Brianna Islas

· Jocelyn Sandoval is the Guardian ad Litem for:

o (18) Jesus Dylan Islas

· Maria Perez Serrano is the Guardian ad Litem for:

o (19) Alondra Velasquez

o (20) Denise Camila Velasquez

· Adan Reyes Diaz is the Guardian ad Litem for:

o (21) Nathaly Reyes

o (22) Angeline Reyes

o (23) Diana Reyes

· Humberta Lozano is the Guardian ad Litem for:

o Flor Ramos Lozano

All Guardians ad Litem have verified the Petition for the minor claimants.

There are no medical expenses to be reimbursed. (MC-350 ¶ 13.)

The total amount of settlement offered by all defendants to persons other than claimant to settle claims arising out of the same incident or accident is $1,889,999.99. (MC-350 ¶ 12.) Each minor will receive a gross settlement of $5,0001.01 each. The adult petitioners will receive a gross settlement of $28,548.38 each. (MC-350, Attachment 12c.)

This settlement appears to be reasonable. The injuries described were treated with over-the-counter ointments and creams, non-prescription allergy and cough medications, and did not require treatment by a medical doctor. (MC-350 ¶ 8.)

The Petitions, Proposed Orders, and Orders to Deposit Money into Blocked Account were filed as to all minor claimants.

Attorney Fees

Because this Petition requests attorney’s fees, the fee agreement must be attached.

Attachment 18a provides a legal services contract in Spanish, that was signed, and an English version of same. The last pages are provided as attachments. The pages were signed by Guardian ad Litems Guadalupe Mendez, Monica Aveces, Karen Orozco, Claudia Arita, Amalia Andres, Elena Francisco, Jesus Islas Vargas, Jocelyn Sandoval, Adan Reyes, Humbera Lozano, Maria Perez Serrano, Saria Diaz, and Karina Fuentes. These consist of all the Guardians ad Litem listed above. (MC-350 Attachment 18a.)

Under California Rules of Court, Rule 7.955(c), a Petition requesting court approval and allowance of an attorney’s fee must include a declaration from the attorney that addresses the factors listed in Cal. Rules of Court, rule 7.955(b). The Petition itself also instructs attorneys to attach a declaration explaining the basis for the request. (MC-350, ¶ 14(a).) Counsel has submitted a sworn declaration which the Court finds adequately addresses the factors enumerated in Cal. Rules of Court, rule 7.955(b).

The fee agreement here provides that the attorney will receive a fee constituting 33 1/3 percent of the net recovery, if recovery is obtained before the filing of a lawsuit and 40 percent of the net recovery if the recovery is obtained after the filing of a lawsuit. (MC-350, Attachment 18a.) As to the minor claimants, the Petition provides that attorney’s fees will be 25% of the net recovery. The Court finds that the attorney’s fees are reasonable under all the circumstances.

The Court finds that all requirements have been satisfied, and therefore GRANTS the Petition.

Conclusion

The Petitions for approval of Minors’ Compromise are GRANTED.

Petitioners are to give notice.

'

Case Number: BC615547    Hearing Date: February 25, 2021    Dept: 31


Case Number: BC658702    Hearing Date: February 25, 2021    Dept: 31

PLAINTIFF'S MOTION TO DISQUALIFY ARBITRATOR IS DENIED.

Background

On April 20, 2017, Plaintiff Ocean Towers Housing Corporation filed the instant action against Defendants Enenstein, Ribakoff, Lavina & Pham LLP; David Ribakoff; Ryan Wegner; Darren Enenstein; and Does 1 through 100. On August 3, 2017, Plaintiff filed the First Amended Complaint (“FAC”). The FAC asserts causes of action for:

  1. Negligence;

  2. Breach of Fiduciary Duty;

  3. Breach of Contract; and

  4. Declaratory Relief.

On September 27, 2017, pursuant to a Stipulation to Submit Matter to Binding Arbitration and to Stay Action, the Court ordered the matter to arbitration and stayed the case.

Plaintiff now moves to disqualify the arbitrator pursuant to the Arbitrator Order referring the issue to the Court.

Legal Standard

A proposed arbitrator must disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial. (Code Civ. Proc. § 1281.9, subd. (a).) This includes the existence of any ground listed in Code of Civil Procedure section 170.1. (Ibid.) Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii) requires disqualification where “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” A party who agrees to arbitration before a private body does not waive their statutory rights to disqualify an arbitrator, and the private body is required to resolve objections to proposed arbitrators in accordance with Code of Civil Procedure sections 1281.9 and 1281.91. (Azteca Construction, Inc. v. ADR Consulting, Inc. (2004) 121 Cal.App.4th 1156, 1168 (Azteca).)

If a party timely objects after receiving a proposed neutral arbitrator’s disclosures, “the arbitrator shall be disqualified on the basis of the disclosure statement.” (Code Civ. Proc. § 1281.91, subd. (b)(1).) “If any ground specified in Section 170.1 exists, a neutral arbitrator shall disqualify himself or herself upon the demand of any party made before the conclusion of the arbitration proceeding. (Code Civ. Proc., § 1281.91, subd. (d).)

Discussion

Plaintiff moves to disqualify the arbitrator pursuant to the Arbitrator Order referring the issue to the Court. 

On November 4, 2020, the Arbitrator, the Honorable Jacqueline A Connor, issued an Order re: Request for Disqualification of Arbitrator. (Wittenberg Decl., Exh. 1.) The Order states that the parties’ arbitration is governed by ADR Service, Inc. Arbitration Rules. (Wittenberg Decl., Exh. 1.) Rule 12 of the ADR Services, Inc. Arbitration rules provides, in relevant part: “Upon objection of a party to the continued service of a neutral arbitrator, ADR Services shall refer the matter to the Court for determination, which shall be conclusive.” (Wittenberg Decl., Exh. 1.) The Order further states: “I believe, therefore, that in view of Respondent’s/ Cross-Claimant’s objection to my continued service as the Arbitrator in this matter, the Court would be the proper venue to determine whether the arbitration should proceed before the undersigned arbitrator, or whether a new arbitrator should be selected. [¶] Either Claimant or Respondent in this action, shall Petition the Court for an Order determining whether the arbitration should proceed before the undersigned arbitrator, or whether a new arbitrator should be selected.” (Wittenberg Decl., Exh. 1.)

The Court finds that Plaintiff has not identified a legal basis for bringing the instant motion. Under the great weight of modern authorities, trial courts lack authority to rule, intervene in, or dismiss, pending contractual arbitrations. (MKJA, Inc. v. 123 Fit Franchising, LLC (2011) 191 Cal.App.4th 643, 662 ["After a petition to compel arbitration has been granted and a lawsuit stayed, 'the arbitrator takes over. It is the job of the arbitrator, not the court, to resolve all questions needed to determine the controversy.'”].) “[A]n arbitration has a life of its own outside the judicial system.” (Byerly v. Sale (1988) 204 Cal.App.3d 1312, 1316.) “The trial court may not step into a case submitted to arbitration and tell the arbitrator what to do and when to do it: it may not resolve procedural questions, order discovery, determine the status of claims before the arbitrator or set the case for trial because of a party's alleged dilatory conduct. It is for the arbitrator, and not the court, to resolve such questions.” (Titan/Value Equities Group, Inc. v. Superior Court (1994) 29 Cal.App.4th 482, 489.)   

The court has authority to vacate an arbitration award on grounds that the “arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required...”  (Code Civ. Proc., § 1286.2(a)(6); Hayden v. Robertson Stephens, Inc. (2007) 150 Cal.App.4th 360, 366.) Thus, the proper means of enforcing Code of Civil Procedure Section 1281.91 is after the arbitration has been completed, through a motion to vacate arbitration award brought pursuant to CCP § 1286.2. (See Azteca Construction, Inc. v. ADR Consulting, Inc. (2004) 121 Cal.App.4th 1156, 1169.)

Here, arbitration is still pending and no final award has been entered. Plaintiff has failed to cite to any authority that expressly provides that the Court has authority to rule or intervene in the pending contractual arbitration based on the Arbitrator’s Order referring the matter to the Court.

Based on the foregoing, Plaintiff’s motion to disqualify the arbitrator is DENIED.

Conclusion

Plaintiff’s motion to disqualify the arbitrator is DENIED.

Plaintiff is to give notice.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All social distancing protocols will be observed at the Courthouse and in the courtrooms.

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