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This case was last updated from Los Angeles County Superior Courts on 06/22/2019 at 00:24:30 (UTC).

3123 SMB LLC ET AL VS STEVEN J HORN

Case Summary

On 11/03/2017 3123 SMB LLC filed an Other lawsuit against STEVEN J HORN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are GREGORY KEOSIAN and DAVID SOTELO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2318

  • Filing Date:

    11/03/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

GREGORY KEOSIAN

DAVID SOTELO

 

Party Details

Plaintiffs, Petitioners and Cross Plaintiffs

KLING CORPORATION

3123 SMB LLC

KLING MARY J.

KLING ANTHONY N.

LINCOLN ONE CORPORATION A MISSOURI CORP.

CLIFFWOOD LLC A MISSOURI LLC

LINCOLN ONE CORPORATION

HORN STEVEN J.

KLING ANTHONY M. AND HIS SUCCESSORS IN INTEREST

KLING MARY J. AND HER SUCCESSORS IN INTEREST

3123 SMB LLC A MISSOURI LIMITED LIABILITY COMPANY

Defendants, Respondents and Cross Defendants

HORN STEVEN J

LINCOLN ONE CORPORATION A MISSOURI CORPORATION

KLING ANTHONY M. AND HIS SUCCESSORS IN INTEREST

KLING MARY J. AND HER SUCCESSORS IN INTEREST

3123 SMB LLC A MISSOURI LIMITED LIABILITY COMPANY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

KLING LAW FIRM

KLING ANTHONY N

HORN VALERIE FAITH

HORN STEVEN JEFFRY

BELAGA JONATHAN JEREMY

Petitioner and Defendant Attorneys

HORN STEVEN JEFFRY

BELAGA JONATHAN JEREMY

WILCOX WENDY L. ESQ.

Plaintiff and Respondent Attorney

KLING ANTHONY N

 

Court Documents

DECLARATION OF DAVID KNIERIEM

2/21/2018: DECLARATION OF DAVID KNIERIEM

DECLARATION OF ANTHONY KLING

2/21/2018: DECLARATION OF ANTHONY KLING

PLAINTIFFS' OPPOSITION & OBJECTION TO DEFENDANTS' IMPROPER REQUEST FOR JUDICIAL NOTICE ("RNJ") OF EXHIBITS 3 & 4,

2/26/2018: PLAINTIFFS' OPPOSITION & OBJECTION TO DEFENDANTS' IMPROPER REQUEST FOR JUDICIAL NOTICE ("RNJ") OF EXHIBITS 3 & 4,

NOTICE OF RELATED CASE (AMENDED)

7/16/2018: NOTICE OF RELATED CASE (AMENDED)

PLAINTIFFS? OPPOSITION TO DEFENDANT STEVEN J HORN?S IMPROPER REPEAT MOTION TO STRIKE NON-A MEJ1FD CAUSF.S OF ACTIONS, AS CROSS-NOTICED WITH I) PLAINTIFFS? MOTION TO STRIKE REPEAT DEMURRER AS A PLEADIN

9/6/2018: PLAINTIFFS? OPPOSITION TO DEFENDANT STEVEN J HORN?S IMPROPER REPEAT MOTION TO STRIKE NON-A MEJ1FD CAUSF.S OF ACTIONS, AS CROSS-NOTICED WITH I) PLAINTIFFS? MOTION TO STRIKE REPEAT DEMURRER AS A PLEADIN

Unknown

9/6/2018: Unknown

DEFENDANT STEVEN J. HORN'S REPLY BRIEF IN SUPPORT OF HIS MOTION TO STRIKE THE ENTIRE SECOND AMENDED COMPLAINT; ETC.

9/12/2018: DEFENDANT STEVEN J. HORN'S REPLY BRIEF IN SUPPORT OF HIS MOTION TO STRIKE THE ENTIRE SECOND AMENDED COMPLAINT; ETC.

Minute Order

9/20/2018: Minute Order

Notice of Related Case

10/16/2018: Notice of Related Case

Opposition

11/9/2018: Opposition

Unknown

12/13/2018: Unknown

Unknown

12/14/2018: Unknown

Notice

1/30/2019: Notice

Notice

2/22/2019: Notice

Unknown

5/7/2019: Unknown

Notice

6/5/2019: Notice

DECLARATION OF ANTHONY KLING IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

1/19/2018: DECLARATION OF ANTHONY KLING IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

NOTICE OF MOTION & MOTION TO GRANT ADMISSION PRO HAC VICE OF DAVID KNIERIEM; ETC.

12/4/2017: NOTICE OF MOTION & MOTION TO GRANT ADMISSION PRO HAC VICE OF DAVID KNIERIEM; ETC.

227 More Documents Available

 

Docket Entries

  • 06/18/2019
  • Proof of Personal Service; Filed by Steven J. Horn (Petitioner)

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  • 06/07/2019
  • Response to Petition; Filed by Steven J Horn (Defendant)

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  • 06/07/2019
  • Response to Petition; Filed by Steven J Horn (Cross-Defendant)

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  • 06/06/2019
  • General Denial; Filed by Steven J Horn (Cross-Defendant)

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  • 06/05/2019
  • Notice (PLAINTIFFS' [NOTICE OF] RULING DENYING DEFENDANT STEVEN HORN'S EX PARTE APPLICATION OF JUNE 3); Filed by Anthony N. Kling (Plaintiff)

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  • 06/05/2019
  • Notice (PLAINTIFFS' [NOTICE OF] HEARING DATE SCHEDULED FOR AUGUST 15); Filed by Anthony N. Kling (Plaintiff)

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  • 06/03/2019
  • at 08:30 AM in Department 40; Hearing on Petition (to confirm binding arbitration) - Not Held - Advanced and Continued - by Court

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  • 06/03/2019
  • at 08:30 AM in Department 40; Hearing on Ex Parte Application ( for Orders Striking Respondents' Cross-Complaint, etc.) - Held

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  • 06/03/2019
  • Minute Order ( (Hearing on Ex Parte Application for Orders Striking Responde...)); Filed by Clerk

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  • 06/03/2019
  • Ex Parte Application (Ex Parte Application for Orders Striking Respondents' Cross-Complaint, etc.); Filed by Steven J. Horn (Petitioner)

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422 More Docket Entries
  • 11/16/2017
  • ORDER TO SHOW CAUSE HEARING

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  • 11/13/2017
  • at 2:00 PM in Department 61; Unknown Event Type - Held - Motion Granted

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  • 11/13/2017
  • Minute Order

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  • 11/13/2017
  • Minute order entered: 2017-11-13 00:00:00; Filed by Clerk

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  • 11/09/2017
  • Challenge To Judicial Officer - Peremptory (170.6); Filed by Plaintiff/Petitioner

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  • 11/09/2017
  • PEREMPTORY CHALLENGE TO JUDICIAL OFFICER (CODE CIV. PROC., 170.6)

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  • 11/09/2017
  • PLAINTIFF 3123 SMB LLC'S NOTICE OF CHALLENGE AND PEREMPTORY CHALLENGE [CCP 170.6]

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  • 11/03/2017
  • Complaint; Filed by 3123 SMB LLC (Plaintiff); KLING CORPORATION (Plaintiff); ANTHONY N. KLING (Plaintiff) et al.

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  • 11/03/2017
  • COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF 1. RETURN OF CLIENT FEES AND REQUEST FOR TRIAL DE NOVO [BUSINESS & PROFESSIONS CODE 6200 ET SEQ.]; ETC

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  • 11/03/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC682318    Hearing Date: September 15, 2020    Dept: 40

MOVING PARTY: Defendant Steven J. Horn

OPPOSITION: Plaintiffs Anthony Kling and Mary Kling

On March 20, 2020, Defendant propounded four discovery sets on Plaintiffs. On May 7, 2020, Defendants filed motions to compel Plaintiffs’ responses to special interrogatories and demand for production of documents.

On August 31, 2020, Plaintiffs filed documents with the court indicating that they provided the requested discovery rendering the instant motions moot.

Judicial Notice: Plaintiffs request judicial notice of various COVID-19 court closure orders and stay-at-home orders is GRANTED pursuant to Evidence Code section 452(h).

Analysis: The motions to compel are MOOT as Plaintiffs have provided responses to the discovery requests.

Sanctions: Defendant requests $2,060 in sanctions for three motions to compel. Defendant also requests $4,060 in sanctions for the motion to compel Anthony Kling’s responses to demand for production of documents. Defendant’s counsel’s hourly rate is $500, with each motion’s $60 filing fee.

Plaintiffs’ position is that they did not have to serve discovery responses because of the various COVID-19 orders closing down attorneys’ offices and the courts. Plaintiffs states that their physical offices were closed, and that they were unable to access files located therein to respond to the discovery requests. Finally, Plaintiffs state that when Defendant served their final meet and confer email, on April 30, 2020, Plaintiffs had already filed a notice of unavailability till May 15, 2020.

The Court finds that the imposition of sanctions is not justified at this time. However, there has been no blanket stay on discovery during the pandemic but the Court accepts Plaintiffs’ representation that the international pandemic and the various pandemic-related orders (of the State Supreme Court Justice and of Los Angeles Superior Court) made propounding responses difficult.

Considering that Plaintiffs promptly served responses once the court system reopened, the Court will not impose sanctions.

Conclusion: Defendant’s motions to compel are MOOT and Defendant’s request for sanctions is DENIED--at this time.

Case Number: BC682318    Hearing Date: July 14, 2020    Dept: 40

MOVING PARTY: Petitioner Steven J. Horn

OPPOSITION: Respondents Anthony Kling and Mary Kling

On March 16, 2020, Horn filed the instant motion to amend the judgment. Horn requests that (1) 3123 SMB, LLC, a Missouri Limited Liability Company; (2) Lincoln One Corporation, a Missouri corporation; and (3) Kling Corporation, a California corporation, be added to the Judgment. Horn also requests that the Court correct the March 6, 2020 Judgment regarding the denial of attorneys’ fees and costs.

On May 28, 2020, the Klings filed a motion to take Horn’s motion off calendar on the ground that the matter was stayed after the filing of an appeal.

CCP § 187 states: “[w]hen jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.”

“The court may exercise its authority to impose liability upon an alter ego who had control of the litigation and was therefore represented in it. [Citation.] The addition of a new party as judgment debtor stems from the concept of the alter ego doctrine, which is that an identity exists between the new party and the original party, whose participation in the trial leading to the judgment represented the newly added party. [Citation.] Therefore, amending a judgment to add an alter ego does not add a new defendant but instead inserts the correct name of the real defendant. [Citation.] In order to see that justice is done, great liberality is encouraged in the allowance of amendments brought pursuant to Code of Civil Procedure section 187.” Misik v. D’Arco (2011) 197 Cal.App.4th 1065, 1072-1073.

  1. Judgment Debtors: Horn requests that (1) 3123 SMB, LLC, a Missouri Limited Liability Company; (2) Lincoln One Corporation, a Missouri corporation; and (3) Kling Corporation, a California corporation, be added to the Judgment. Horn also requests that the Court correct the March 6, 2020 Judgment regarding the denial of prevailing party contractual attorneys’ fees and costs.

The Court’s October ruling removed the above three entities because they were nonsignatories to the retainer agreement. (October 1, 2019 Minute Order, pgs. 5-6.)

Horn raises several arguments in his moving papers for why the entities should not have been removed: they waived their objections by participating in the arbitration, they were third party beneficiaries, and they were agents of the Klings.

However, the instant motion to add the entities as judgment debtors is not the appropriate procedural vehicle to raise these claims of legal error. The Court believes that its ruling was correct because an arbitrator has no power to determine the rights and obligations of nonparties. Hall, Goodhue, Haisley & Barker, Inc. v. Marconi Conf. Center Bd. (1996) 41 Cal.App.4th 1551, 1555. The three entities were nonsignatories to the retainer agreement and thus nonparties. Regardless, the Court upon confirming the arbitration award may amend the judgment to add additional judgment debtors pursuant to Code of Civil Procedure §187. (Id. at pp. 1554-1555.)

The authority granted by section187 to amend a judgment to add a defendant and impose liability on the new defendant without trial, requires both of the following: 1) the new party was an alter ego of the old party; and 2) the new party had controlled the litigation, thereby having had the opportunity to litigate, in order to satisfy due process concerns. Triplett v. Farmers Ins. Exchange (1994) 24 Cal. App. 4th 1415, 1421.The judgment creditor should establish by a preponderance of the evidence that the alter ego controlled the litigation. Wollersheim v. Church of Scientology Int’l (1999) 69 Cal.App.4th 1012, 1017.

As noted by Horn, the United States District Court, Central District of California found that there was strong evidence that 3123 SMB LLC, the Klings, and Lincoln One were alter egos of each other. (Pet., Ex 3., pg. 4.) Kling Corporation is owned by the Klings and Horn represented it in the underlying action along with 3123 SMB, LLC and the Klings. Therefore, the first prong is satisfied, and the Court finds that the entities are alter egos of the Klings. The Court also finds that the second prong is met. The entities, as noted by the District Court in respect to Lincoln One, appear to have no meaningful existence separate from the Klings. The entities, via the Klings had the opportunity to “litigate” the matter.

The Klings have filed a request for the court to take this matter off calendar, stating that the court lost jurisdiction when Horn filed a cross-appeal on May 14, 2020.

Horn responds that the Klings failed to post an undertaking and therefore their May 5th notice of appeal does not stay enforcement of the judgment. Under Code of Civil Procedure section 916, an appeal “stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby.” (Code Civ. Proc., § 916, subd. (a).) An exception to this rule is section § 917.1, enforcement of a judgment or order for “[m]oney or the payment of money” is not stayed by an appeal “[u]less an undertaking is given.” (CCP., § 917.1, subd. (a)(1).) Since no undertaking has been posted, the Court finds that the Klings’ notice of appeal does not stay enforcement of the judgment.

  1. Attorneys’ Fees and Costs: Horn argues that he is entitled to fees and costs pursuant to Civil Code § 1717, the statute awarding attorneys’ fees for parties who prevail on a contract with an attorneys’ fees provision. The Court’s judgment states that both sides shall bear their own fees and costs. Horn states that he prevailed on his petition to confirm the arbitration award and that paragraph 20 of the retainer agreement contains an attorneys’ fees provision. Paragraph 20 in relevant part states: “The prevailing party in any action or proceeding arising under or related to this Agreement or any transaction thereto shall be awarded reasonable attorney fees and costs.” (Pet. Opp’n, Ex. 1.)

Section 1717, subdivision (a)(1), provides that attorney’s fees must be awarded to the prevailing party in an action on a contract that contains an attorney’s fee clause. Section 1717, subdivision (b)(1) provides:

“The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.” (italics added.)

Here, no motion was filed by Horn requesting attorneys’ fees and therefore no determination was made as to who was the prevailing party. Instead, Horn merely listed that fees would be awarded in his proposed judgment, which the Court properly struck out.

It appears to the Court that Horn is entitled to fees and costs based on the retainer agreement. However, Horn never filed the right motion to request said fees.

Conclusion: Horn’s motion to amend the judgment is GRANTED IN PART. 3123 SMB, LLC, Lincoln One Corporation, and Kling Corporation are added as judgment debtors. Fees will be granted after the appropriate motion is filed.

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