This case was last updated from Los Angeles County Superior Courts on 07/18/2019 at 01:01:56 (UTC).

AWI BUILDERS INC ET AL VS ALLIANT CONSULTING INC ET AL

Case Summary

On 03/08/2018 AWI BUILDERS INC filed a Personal Injury - Other Personal Injury lawsuit against ALLIANT CONSULTING INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are PATRICIA D. NIETO, ROBERT L. HESS and ROBERT B. BROADBELT. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6666

  • Filing Date:

    03/08/2018

  • 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 Judges

PATRICIA D. NIETO

ROBERT L. HESS

ROBERT B. BROADBELT

 

Party Details

Plaintiffs, Petitioners and Appellants

MEKIKYAN ANNA

AWI BUILDERS INC.

CONSTRUCTION CONTRACTORS CORPORATION

MEKIKYAN ZHIRAYR "ROBERT"

Defendants and Respondents

GKK WORKS

RODRIGUEZ PETE

DOES 1 TO 100

ALLIANT CONSULTING INC.

CARPENTERS-CONTRACTORS COOPERATION

KERSH DAVID

SCHOTT CHRISTA

COUNTY OF ORANGE

RACKAUCKAS ANTHONY "TONY"

DOES 1 THROUGH 100

MCCAMENT DONDE

CARPENTERS-CONTRACTORS COOP. COMM. INC.

SANDOVAL MARIA

STATE OF CALIFORNIA

NOCE ELAINE

Not Classified By Court

SAMPLES ROSA

17 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

FELDMAN MARK A. ESQ.

PACHECO RODERIC

FELDMAN & ASSOCIATES INC.

PACHECO & NEACH PC

FELDMAN MARK A

PACHECO ROD

Defendant and Respondent Attorneys

MANNING & KASS ELLROD RAMIREZ TRESTER LLP

XAVIER BECERRA ATTORNEY GENERAL

KOELLER NEBEKER CARLSON & HALUCK LLP

DECARLO & SHANLEY APC

LEE DESMOND C.

COLLINS COLLINS MUIR + STEWART LLP

MIRZOYAN YULIYA S.

DE LA CRUZ ALFRED M.

HALUCK WILLIAM L.

SULLINGER SHIRLEY R.

ROSEN JESSICA WYNETTE

SULLINGER SHIRLEY RATSAMY

MCDONALD MICHAEL B

MUIR SAMUEL J.

 

Court Documents

CASE MANAGEMENT STATEMENT

7/26/2018: CASE MANAGEMENT STATEMENT

THIRD NOTICE OF CHANGE IN HEARING DATE ON DEFENDANTS CARPENTERS-CONTRACTORS COOPERATION COMMITTEE, INC., PETE RODRIGUEZ, AND DAVID KERSH?S ANTI-SLAPP MOTION

7/31/2018: THIRD NOTICE OF CHANGE IN HEARING DATE ON DEFENDANTS CARPENTERS-CONTRACTORS COOPERATION COMMITTEE, INC., PETE RODRIGUEZ, AND DAVID KERSH?S ANTI-SLAPP MOTION

CASE MANAGEMENT STATEMENT

8/14/2018: CASE MANAGEMENT STATEMENT

DEFENDANT GKK WORKS' SPECIAL MOTION TO STRIKE (C.C.P. 425.16, "ANTI-SLAPP") PLAINTIFFS' SECOND AMENDED COMPLAINT

8/22/2018: DEFENDANT GKK WORKS' SPECIAL MOTION TO STRIKE (C.C.P. 425.16, "ANTI-SLAPP") PLAINTIFFS' SECOND AMENDED COMPLAINT

Proof of Service (not Summons and Complaint)

10/5/2018: Proof of Service (not Summons and Complaint)

Objection

10/31/2018: Objection

Notice of Ruling

11/5/2018: Notice of Ruling

Appeal - Notice of Appeal/Cross Appeal Filed

12/20/2018: Appeal - Notice of Appeal/Cross Appeal Filed

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

2/28/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Notice

3/12/2019: Notice

Proof of Service by Mail

3/25/2019: Proof of Service by Mail

Certificate of Mailing for

4/23/2019: Certificate of Mailing for

Appeal - Notice of Filing of Notice of Appeal

5/9/2019: Appeal - Notice of Filing of Notice of Appeal

DEFENDANTS COUNTY OF ORANGE, ANTHONY RACKAUCKAS, DONDE MCCAMENT, AND ELAINE NOCE'S OBJECTIONS TO THE DECLARATIONS OF ZHIRAYR "ROBERT" MEKIKYAN FILED OPPOSITION TO ANTI-SLAPP MOTION

7/3/2018: DEFENDANTS COUNTY OF ORANGE, ANTHONY RACKAUCKAS, DONDE MCCAMENT, AND ELAINE NOCE'S OBJECTIONS TO THE DECLARATIONS OF ZHIRAYR "ROBERT" MEKIKYAN FILED OPPOSITION TO ANTI-SLAPP MOTION

NOTICE RE: CONTINUANCE OF HEARING

7/3/2018: NOTICE RE: CONTINUANCE OF HEARING

NOTICE RE: CONTINUANCE OF HEARING

7/3/2018: NOTICE RE: CONTINUANCE OF HEARING

PLAINTIFFS? OPPOSITION TO ANTI-SLAPP MOTION OF CARPENTERS COOPERATION COMMITTEE, INC., PETE RODRIGUEZ, AND DAVID KERSH

6/25/2018: PLAINTIFFS? OPPOSITION TO ANTI-SLAPP MOTION OF CARPENTERS COOPERATION COMMITTEE, INC., PETE RODRIGUEZ, AND DAVID KERSH

SUMMONS

3/8/2018: SUMMONS

274 More Documents Available

 

Docket Entries

  • 07/16/2019
  • Appeal - Notice Court Reporter to Prepare Appeal Transcript (;B297189, NOA 4/25/19 & 4/25/19;); Filed by Clerk

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  • 07/11/2019
  • at 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Case Management Conference - Not Held - Continued - Court's Motion

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  • 07/11/2019
  • Minute Order ( (Case Management Conference;)); Filed by Clerk

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  • 07/11/2019
  • Notice ( of Continuance of Case Management Conference); Filed by AWI Builders, Inc. (Plaintiff); Construction Contractors Corporation (Plaintiff); Zhirayr "Robert" Mekikyan (Plaintiff) et al.

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  • 07/10/2019
  • Appeal - Reporter Appeal Transcript Process Fee Paid; Filed by AWI Builders, Inc. (Plaintiff); L.A. DEPOSITIONS, INC. (Plaintiff)

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  • 07/02/2019
  • Appeal - Ntc Designating Record of Appeal APP-003/010/103 ("U2"); Filed by AWI Builders, Inc. (Appellant); Construction Contractors Corporation (Appellant)

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  • 06/26/2019
  • Appeal - Notice of Filing of Notice of Appeal ("U2"); Filed by Clerk

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  • 06/26/2019
  • Case Management Statement; Filed by Maria Sandoval (Defendant)

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  • 06/26/2019
  • Proof of Service by Mail; Filed by Maria Sandoval (Defendant)

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  • 06/24/2019
  • at 08:29 AM in Department 53, Robert B. Broadbelt, Presiding; Hearing on Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion) - Not Held - Advanced and Continued - by Court

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440 More Docket Entries
  • 04/20/2018
  • SECOND AMENDED COMPLAINT FOR: 1. VIOLATION OF CIVIL RIGHTS (42 U.S.C. SECTION 1983)

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  • 04/20/2018
  • Second Amended Complaint; Filed by AWI Builders, Inc. (Plaintiff); Construction Contractors Corporation (Plaintiff); Zhirayr "Robert" Mekikyan (Plaintiff) et al.

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  • 04/20/2018
  • SUMMONS

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  • 04/20/2018
  • Summons; Filed by AWI Builders, Inc. (Plaintiff); Construction Contractors Corporation (Plaintiff); Zhirayr "Robert" Mekikyan (Plaintiff) et al.

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  • 03/29/2018
  • FIRST AMENDED COMPLAINT FOR: 1. VIOLATION OF CIVIL RIGHTS (42 U.S.C. 1983) 2. NEGLIGENT INTERFERENCE WITH CONTRACT 3. NEGLIGENT INTERFERENCE WITH ECONOMIC OPPORTUNITY; ETC

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  • 03/29/2018
  • First Amended Complaint; Filed by AWI Builders, Inc. (Plaintiff); Construction Contractors Corporation (Plaintiff); Zhirayr "Robert" Mekikyan (Plaintiff) et al.

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  • 03/08/2018
  • Summons; Filed by AWI Builders, Inc. (Plaintiff); Construction Contractors Corporation (Plaintiff); Zhirayr "Robert" Mekikyan (Plaintiff) et al.

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  • 03/08/2018
  • SUMMONS

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  • 03/06/2018
  • Complaint; Filed by AWI Builders, Inc. (Plaintiff); Construction Contractors Corporation (Plaintiff); Zhirayr "Robert" Mekikyan (Plaintiff) et al.

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  • 03/06/2018
  • COMPLAINT OF AWL BUILDERS, INC. FOR: 1. VIOLATION OF CIVIL RIGHTS (42 U.S.C. 1983) ;ETC

    Read MoreRead Less

Tentative Rulings

Case Number: BC696666    Hearing Date: December 22, 2020    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

awi builders, inc. , et al.;

Plaintiffs,

vs.

alliant consulting, inc. , et al.,

Defendants.

Case No.:

BC696666

Hearing Date:

December 22, 2020

Time:

10:00 a.m.

[Tentative] Order RE:

motion by the division of labor standards enforcement for order awarding attorney’s fees

MOVING PARTY: Defendant Division of Labor Standards Enforcement

RESPONDING PARTY: Plaintiffs AWI Builders, Inc., Construction Contractors

Corporation, Zhirayr “Robert” Mekikyan, and Anna Mekikyan

Motion by The Division of Labor Standards Enforcement for Order Awarding Attorney’s Fees

The court considered the moving, opposition, and reply papers.

Background

On May 23, 2019, the court issued an order granting in part the special motion by defendants Maria Sandoval, individually and as a non-sworn investigator for the Division of Labor Standards Enforcement (“DLSE”), and the State of California to strike the operative Second Amended Complaint of plaintiffs AWI Builders, Inc., Construction Contractors Corporation, Zhirayr “Robert” Mekikyan, and Anna Mekikyan (collectively, “Plaintiffs”) pursuant to Code of Civil Procedure section 425.16. The court’s May 23, 2019 order granted the special motion to strike as to all causes of action alleged against defendant State of California. The court’s May 23, 2019 order granted the special motion to strike as to the causes of action against defendant Maria Sandoval, except the court denied the special motion to strike as to the first cause of action alleged against defendant Maria Sandoval. DLSE[1] now moves for attorney’s fees as the prevailing defendant on the special motion to strike, pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1). Plaintiffs oppose the motion.

DISCUSSION

Code of Civil Procedure section 425.16, subdivision (c)(1), provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” “Thus, under Code of Civil Procedure section 425.16, subdivision (c), any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) An award of attorney’s fees may also include “the fees incurred in enforcing the right to mandatory fees under Code of Civil Procedure section 425.16.” (Id. at p. 1141.) “It is well established that ‘[t]he amount of an attorney fee award under the anti-SLAPP statute is computed by the trial court in accordance with the familiar “lodestar” method. Under that method, the court “tabulates the attorney fee touchstone, or lodestar, by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work.”’” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 432 [citations omitted].)

In support of its motion, DLSE submits the Declaration of David D. Cross and the Declaration of William Arthur Snyder to establish the reasonable amount of attorney’s fees incurred by DLSE in bringing its special motion to strike.

With regard to the number of hours reasonably expended, “the verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) In determining the reasonable hourly rate, the “burden is on the successful party to prove the appropriate market rate to be used in calculating the lodestar.” (MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th Supp. 1, 13.) The trial court may reduce the award where the fee request appears unreasonably inflated, such as where the attorneys’ efforts are unorganized or duplicative. (Serrano v. Unruh (1982) 32 Cal.3d 621, 635, fn. 21.)

Counsel for DLSE, David Cross (“Cross”) and William Arthur Snyder (“Snyder”), submit a time sheet which shows that Cross billed a total of 22.9 hours at a rate of $375 per hour, and Snyder billed a total of 5 hours at a rate of $500 per hour, in connection with preparing the anti-SLAPP motion and the attorney’s fees motion. (Cross Decl., filed November 11, 2019, Ex. A.) Cross and Snyder each attest to his own qualifications, skills, and experience. (Cross Decl., ¶¶ 2, 4; Snyder Decl., filed November 11, 2019, ¶¶ 2-5.)

The court relies on its own knowledge and familiarity with the legal market in Los Angeles County to determine the reasonable hourly rates for each of DLSE’s attorneys. “The courts repeatedly have stated that the trial court is in the best position to value the services rendered by the attorneys in his or her courtroom, and this includes the determination of the hourly rate that will be used in the lodestar calculus.” (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 436-437 [internal citations omitted].) “In making its calculation, the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees . . . .” (Id. at p. 437.) “There is no requirement that the reasonable market rate mirror the actual rate billed.” (Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 701.) Here, the court finds that, based on their respective qualifications, skills, and experience, DLSE’s attorney’s requested hourly rates ($375 per hour for Cross and $500 per hour for Snyder) are reasonable hourly rates for their work performed on this case and in connection with the anti-SLAPP motion.

Plaintiffs object to DLSE’s attorney’s fees request on a number of grounds.

First, Plaintiffs contend that DLSE’s attorney’s fees request includes work unrelated to the anti-SLAPP motion. The attorney’s fees provision under the anti-SLAPP statute “applies only to the motion to strike, and not to the entire action.” (S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 381.) Plaintiffs object to Cross’s billing entries as follows: (1) “Receipt and review of second amended complaint” on June 15, 2018 for 0.3 hours; (2) “E-mail to Assistant Chief Counsel Hsu re second amended complaint” on June 15, 2018 for 0.2 hours; (3) “Telephone conference with Maria Sandoval re allegations of second amended complaint” on June 15, 2018 for 0.3 hours; (4) Preparation of case management statement” on June 24, 2018 for 0.3 hours; (5) “Attend case management conference and motion” on August 29, 2018 for 2.8 hours; (6) “Preparation of case management statement” on July 25, 2018 for 0.3 hours; and (7) “Attend anti-SLAPP motion by the County of Orange Defendants” on October 29, 2018 for 3.1 hours. Plaintiffs contend that DLSE fails to show how these tasks were reasonably related to the preparation of the anti-SLAPP motion, as opposed to preparing more generally for the entire litigation.

In reply, DLSE states that its anti-SLAPP motion was originally set for hearing on August 20, 2018, and that the hearing was continued by the court several times. DLSE argues that attendance by counsel for DLSE at the status conferences was necessary to track the rulings of the court in connection with the other anti-SLAPP motions, and their attendance was necessary to ensure that the requested relief was in compliance with the rulings by the court on the other four anti-SLAPP motions in this action.

The court finds the following number of hours were not reasonably expended by Cross in connection with DLSE’s anti-SLAPP motion or the instant motion for attorney’s fees: (1) “Telephone conference with Maria Sandoval re allegations of second amended complaint” on June 15, 2018 for 0.3 hours; (2) Preparation of case management statement” on June 24, 2018 for 0.3 hours; (3) “Attend case management conference and motion” on August 29, 2018 for 2.8 hours; (4) “Preparation of case management statement” on July 25, 2018 for 0.3 hours; and (5) “Attend anti-SLAPP motion by the County of Orange Defendants” on October 29, 2018 for 3.1 hours. Therefore, the court reduces the number of hours billed by Cross by 6.8 hours, and finds that DLSE is entitled to recover its reasonable attorney’s fees incurred by Cross in connection with its anti-SLAPP motion and the instant motion for attorney’s fees in the total amount of $6,037.50 (22.9 hours - 6.8 hours = 16.1 hours for Cross. 16.1 hours x $375 per hour = $6,037.50).

Plaintiffs also object to all of Snyder’s billing entries, which are (1) “Attendance by William Snyder at case management conference” on July 26, 2018 for 1.5 hours, and (2) “Attendance by William Snyder at case management conference and hearing on anti-SLAPP motion by CCC” on February 28, 2019 for 3.5 hours. The court finds that these hours were not reasonably expended by Snyder in connection with DLSE’s anti-SLAPP motion or the instant motion for attorney’s fees.

Second, Plaintiffs contend that DLSE’s attorney’s fees request fails to account for DLSE’s co-representation of defendant Maria Sandoval (“Sandoval”), whose anti-SLAPP motion was granted in part, and denied in part. Plaintiffs argue that DLSE’s motion fails to provide any guidance as to what amount of its fees and costs were incurred on behalf of DLSE, as opposed to on behalf of Sandoval, and requests that the court reduce DLSE’s requested award by 50% to account for a reasonable amount of time allocated to Sandoval’s partially unsuccessful motion. In reply, DLSE acknowledges its co-representation of Sandoval and states that it has already discounted the amount of attorney’s fees requested to account for DLSE’s co-representation of Sandoval. The court denies Plaintiffs’ request to reduce DLSE’s attorney’s fees award to account for time allocated to Sandoval’s anti-SLAPP motion. There is nothing to indicate that the time DLSE’s attorneys spent in connection with the anti-SLAPP motion as reflected in the billing entries that the court has found to have been reasonably incurred were not incurred on behalf of DLSE.

Finally, Plaintiffs request that the court stay enforcement of any fee award until disposition of their appeal of the underlying anti-SLAPP motion. The court denies Plaintiffs’ request.

With respect to costs, DLSE is seeking reimbursement for filing and motion fees totaling $555. Plaintiffs do not object to DLSE’s request for reimbursement for filing and motion fees, and the court finds that DLSE is entitled to a cost award in the amount of $555 ($435 first appearance fee + $60 filing fee for the anti-SLAPP motion + $60 filing fee for the instant motion = $555).

ORDER

For the reasons set forth above, the court grants defendant Division of Labor Standards Enforcement’s motion for attorney’s fees and costs. The court orders that defendant Division of Labor Standards Enforcement shall recover $6,037.50 in attorney’s fees and $555 in costs from plaintiffs AWI Builders, Inc., Construction Contractors Corporation, Zhirayr “Robert” Mekikyan, and Anna Mekikyan pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1).

The court denies Plaintiffs’ request to stay enforcement of this order until disposition of their appeal.

The court sets a Case Management Conference in this case on ________________, 2021, at 8:30 a.m., in Department 53.

The court orders defendant DLSE to give notice of this order.

IT IS SO ORDERED.

DATED: December 22, 2020

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court


[1] Although the DLSE referred to itself as the State of California in its special motion to strike, it refers to itself as the DLSE in its motion for attorney’s fees and costs.

Case Number: BC696666    Hearing Date: October 09, 2020    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

awi builders, inc., et al. ,

Plaintiffs,

vs.

alliant consulting, inc. , et al.,

Defendants.

Case No.:

BC696666

Hearing Date:

October 9, 2020

Time:

10:00 a.m.

[Tentative] Order RE:

motion for leave to file third amended complaint

MOVING PARTIES: Plaintiffs AWI Builders Inc., Construction Contractors Corporation, Zhirayr “Robert” Mekikyan, and Anna Mekikyan

RESPONDING PARTIES: Defendants State of California, Maria Sandoval, individually and as a non-sworn investigator for the Department of Labor Standards and Enforcement, Carpenters-Contractors Cooperation Committee, Inc., Pete Rodriguez, David Kersh, and GKK Works

The court considered the moving, opposition, and reply papers. Defendants State of California and Maria Sandoval, individually and as a non-sworn investigator for the Department of Labor Standards and Enforcement, filed an opposition to the motion. Defendants Carpenters-Contractors Cooperation Committee, Inc., Pete Rodriguez and David Kersh filed an opposition to the motion. Defendant GKK Works filed an opposition to the motion. Defendants County of Orange, Anthony “Tony” Rackauckas, Donde McCament, and Elaine Noce filed a notice of joinder to defendant GKK Works’s opposition to the motion.

Background

Plaintiffs AWI Builders, Inc., Construction Contractors Corporation, Zhirayr “Robert” Mekikyan, and Anna Mekikyan (collectively, “Plaintiffs”) filed this action against, among others, defendants State of California, Maria Sandoval (“Sandoval”), individually and as a non-sworn investigator for the Department of Labor Standards and Enforcement, Carpenters-Contractors Cooperation Committee, Inc., Pete Rodriguez, and David Kersh (collectively, the “Quad-C Defendants”), County of Orange, Anthony “Tony” Rackauckas, Donde McCament, and Elaine Noce (collectively, the “County Defendants”) and GKK Works (“GKK”) (collectively, “Defendants”). The operative Second Amended Complaint (“SAC”) was filed on April 20, 2018.

On May 30, 2018, the Quad-C Defendants filed a special motion to strike all causes of action against them pursuant to Code of Civil Procedure section 425.16, also known as the anti-SLAPP (“strategic lawsuit against public participation”) statute. On February 28, 2019, the court issued an order granting the Quad-C Defendants’ anti-SLAPP motion in its entirety. (Order, filed February 28, 2019.) On July 25, 2019, the Quad-C Defendants were dismissed from this action with prejudice.

On June 8, 2018, the County Defendants also filed an anti-SLAPP motion as to all causes of action against them. On November 8, 2018, the court issued an order granting the County Defendants’ anti-SLAPP motion in its entirety. (Order, filed November 8, 2018.) On December 20, 2018, the County Defendants were dismissed from this action with prejudice.

On June 25, 2018, defendants State of California and Sandoval also filed an anti-SLAPP motion as to the first, third, fourth, fifth, and sixth causes of action against them.[1] On May 23, 2019, the court issued an order granting, in part, defendants State of California and Sandoval’s anti-SLAPP motion. The court granted defendants State of California and Sandoval’s anti-SLAPP motion as to the third, fourth, fifth, and sixth causes of action. (Order, filed May 23, 2019, p. 13:13-16.) The court denied Sandoval’s anti-SLAPP motion as to the first cause of action for violation of civil rights under 42 U.S.C. section 1983. (Id. at p. 13:16-18.) On July 25, 2019, defendant State of California was dismissed from this action with prejudice.

On August 22, 2018, GKK also filed an anti-SLAPP motion as to the first, third, fourth, fifth, sixth, and seventh causes of action against it. On November 15, 2018, the court issued an order granting GKK’s anti-SLAPP motion in its entirety. (Order, filed November 15, 2018.) On December 20, 2018, GKK was dismissed from this action with prejudice.[2]

On December 20, 2018, Plaintiffs filed Notices of Appeal from the orders granting the County Defendants’ and GKK’s anti-SLAPP motions. (Notices of Appeal, filed December 20, 2018.) On April 25, 2019, Plaintiffs filed a Notice of Appeal from the order granting the Quad-C Defendants’ anti-SLAPP motion. (Notice of Appeal, filed April 25, 2019.) On July 23, 2019, Plaintiffs filed a Notice of Appeal from the order granting in part and denying in part defendants State of California and Sandoval’s anti-SLAPP motion. (Notice of Appeal, filed July 23, 2019.)

Plaintiffs now seek leave to amend their SAC to add a new party to Plaintiffs’ first cause of action for violation of civil rights under 42 U.S.C. section 1983. Defendants State of California, Sandoval, the Quad C-Defendants, and GKK each oppose the motion. The County Defendants filed a notice of joinder to GKK’s opposition to the motion.

EVIDENCE

The court grants defendants State of California and Sandoval’s request for judicial notice as to Exhibit B to the Declaration of David D. Cross, filed April 9, 2020.

The court grants the Quad-C Defendants’ request for judicial notice in its entirety as to Exhibits 1, 2, 3, and 4.

DISCUSSION

Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “[t]he court may . . . in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” The court may, in furtherance of justice, allow the amendment of any pleading at any time before or after commencement of trial. (Code Civ. Proc., § 576.) “[T]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings. [Citations.] The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend . . . .” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

A motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments. (Cal. Rules of Court, rule 3.1324(a).) The motion must also state what allegations are proposed to be deleted or added, by page, paragraph, and line number. (Ibid.) Finally, rule 3.1324(b) states: “A separate declaration must accompany the motion and must specify: (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.” The court finds that Plaintiffs have substantially complied with rule 3.1324.

Plaintiffs seek leave to add a new party, Susan Nakagama (“Nakagama”), as a defendant to Plaintiffs’ first cause of action for violation of civil rights under 42 U.S.C. section 1983. In support of the motion, Plaintiffs have submitted the Declaration of Rod Pacheco, Plaintiffs’ attorney. In his declaration, Pacheco states that he also represents Plaintiffs in another action, The People of the State of California v. AWI Builders, Inc., et al., Orange County Superior Court, Case No. 30-2018-00974579-CU-BT-CJC (the “Orange County Action”). (Pacheco Decl., filed January 9, 2020, ¶ 3.) Pacheco states that, on July 2, 2018, in the Orange County Action, Plaintiffs took the deposition of Sandoval, and she testified that Nakagama was Sandoval’s superior at the Department of Labor Standard Enforcement (“DLSE”) and Nakagama directed Sandoval to withhold documents from Plaintiffs, which forms the basis for Plaintiffs’ first cause of action for violation of the due process rights afforded Plaintiffs in administrative hearings. (Id. at ¶ 3.) Sandoval also testified that Nakagama told Sandoval that the instruction to conceal documents was a directive that came directly from Orange County District Attorney. (Id. at ¶ 3.) Pacheco also states that Plaintiffs took Nakagama’s deposition in the Orange County Action on August 29, 2018, and that Nakagama testified that concealment of discovery in a DLSE administrative investigation from the accused entity or individual was a violation of DLSE regulations and of due process rights under 42 U.S.C. section 1983. (Id. at ¶ 4.) Plaintiffs state that Sandoval and Nakagama’s testimony in the Orange County Action is the basis for Plaintiffs’ proposed amendment to add Nakagama to the first cause of action for violation of 42 U.S.C. section 1983. Plaintiffs contend that there will be no prejudice to defendants as a result of the amended complaint because the trial date has not yet been set and discovery has not yet begun due to the anti-SLAPP motions and related appeals in this action.

Defendants State of California, Sandoval, the Quad-C Defendants, and GKK each oppose the motion on the ground that Plaintiffs unreasonably delayed in seeking leave to add Nakagama to the first cause of action. In reply, Plaintiffs state that, even though Plaintiffs learned of the facts supporting the motion in July and August 2018, Plaintiffs waited until January 2020 to file the motion because several anti-SLAPP motions were pending in this action until July 25, 2019. Plaintiffs contend that their delay was not unreasonable and does not warrant denial of the motion. The court notes that Plaintiffs did not file their motion for leave to amend until 18 months after they learned the facts on which they base their claims against Nakagama. As discussed below, Plaintiffs could have sought leave to add Nakagama to the first cause of action while the anti-SLAPP motions were pending. However, even if a plaintiff has unreasonably delayed moving to amend, “it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment. [Citation.]” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)

Defendants State of California, Sandoval, the Quad-C Defendants, and GKK also oppose the motion on the ground that Plaintiffs’ filing their proposed Third Amended Complaint would prejudice Defendants by vacating the judgments and dismissals entered in favor of Defendants as a result of the court’s granting their anti-SLAPP motions. Defendants contend that Plaintiffs’ proposed Third Amended Complaint, which asserts the exact same allegations and causes of action as alleged in the SAC as to each defendant which opposes the motion, would “restore” the causes of action that have already been stricken as a result of the Defendants’ successful anti-SLAPP motions. Defendants contend that they would be prejudiced by Plaintiffs’ filing their proposed Third Amended Complaint because they would have to respond to the Third Amended Complaint by filing new anti-SLAPP motions and demurrers. The Quad-C Defendants and GKK also note that the orders granting their anti-SLAPP motions are currently on appeal, and GKK contends that it should not be required to respond to the proposed Third Amended Complaint unless it loses on appeal and the matter is remanded to this court for further litigation. In reply, Plaintiffs state that their proposed amendment is limited to adding Nakagama as a new party to the first cause of action, and that Plaintiffs have no intention of requiring Defendants to respond to or otherwise relitigate those causes of action that have been stricken and are currently on appeal.

After considering the arguments presented, the court finds that Plaintiffs’ proposed amendment would not prejudice Defendants because Plaintiffs’ filing their Third Amended Complaint adding a new defendant to the first cause of action would not vacate or affect the orders granting Defendants’ anti-SLAPP motions or the judgments or dismissals that have been entered pursuant to those orders.

GKK cites Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 676, for the proposition that “a plaintiff whose complaint is stricken by a successful anti-SLAPP motion cannot try again with an amended complaint.” However, the Court of Appeal in Dickinson also held that the plaintiff was allowed to amend her complaint in order to name a new defendant, even when the existing defendant had a pending anti-SLAPP motion on the original complaint. (Dickinson, supra, 17 Cal.App.5th at pp. 680-681.) The Court of Appeal explained that the strong policy interests in preventing a plaintiff from avoiding the finality of a successful anti-SLAPP motion by amending the complaint are not implicated when the plaintiff names a new defendant because the existing defendant’s right to adjudication of his or her pending anti-SLAPP motion on the original complaint would not be affected by the amendment. (Id. at p. 679.) The Court of Appeal stated: “There is no reason the new defendant should be able to avoid being added to the complaint simply because an existing defendant has an anti-SLAPP motion pending. On appeal, [the new defendant] argues only that the amendment ‘threatened to moot [the existing defendant’s] anti-SLAPP motion challenging the initial complaint and to trigger the new round of anti-SLAPP litigation the statute is meant to prevent.’ Yet this pertains only to [plaintiff’s] attempt to amend as to [the existing defendant]; it has nothing to do with [the new defendant].” (Id. at p. 680.)

Here, Plaintiffs’ proposed amendment to add Nakagama as a new party to the first cause of action would not affect or change the allegations and causes of action asserted against Defendants which have already been dismissed with prejudice. Thus, under Dickinson, Plaintiffs’ filing their proposed Third Amended Complaint would not vacate or affect the court’s orders granting Defendants’ anti-SLAPP motions challenging the SAC, and would not vacate or affect the judgments and dismissals entered pursuant to those orders. As a result, Defendants will not be forced to file new anti-SLAPP motions directed to the Third Amended Complaint.

Moreover, the court notes that Code of Civil Procedure section 916, subdivision (a) stays all further trial court proceedings “upon the matters embraced” in or “affected” by the appeal of the orders on Defendants’ anti-SLAPP motions, and “prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189 (quotations and citations omitted).) However, permitting Plaintiffs to amend their complaint to add Nakagama as a new party to the first cause of action is not a postjudgment or postorder proceeding “upon the matters embraced” in or “affected” by the pending appeal of Defendants’ anti-SLAPP motions. The California Supreme Court explained in Varian: “The fact that the postjudgment or postorder proceeding may render the appeal moot is not, by itself, enough to establish that the proceeding affects the effectiveness of the appeal and should be stayed under section 916. Rather, something more is needed. For example, the trial court proceeding must directly or indirectly seek to ‘enforce, vacate or modify [the] appealed judgment or order.’ [Citation.] Or the proceeding must substantially interfere with the appellate court’s ability to conduct the appeal. [Citation.]” (Id. at pp. 189-190.) As discussed above, under Dickinson, Plaintiffs’ proposed amendment to add Nakagama as a new party to the first cause of action would not vacate or affect the court’s orders granting the Defendants’ anti-SLAPP motions directed to the SAC because the proposed amendment does not relate to the Defendants whose anti-SLAPP motions were granted. Permitting Plaintiffs’ proposed amendment would not affect the appealed judgments and orders, and would not otherwise substantially interfere with the appellate court’s ability to conduct the appeal.

The court finds that Plaintiffs’ proposed amendment is in furtherance of justice and will not unduly prejudice defendants. Therefore, the court exercises its discretion to grant Plaintiffs leave to file their proposed Third Amended Complaint. (Code Civ. Proc., § 473, subd. (a)(1).)

ORDER

For the reasons set forth above, the court grants plaintiffs AWI Builders Inc., Construction Contractors Corporation, Zhirayr “Robert” Mekikyan, and Anna Mekikyan’s motion for leave to file their Third Amended Complaint.

The court orders that Plaintiffs have leave to file their Third Amended Complaint within seven days of the date of this order.

As discussed above, Plaintiffs’ filing their Third Amended Complaint will not vacate or affect the court’s orders granting Defendants’ anti-SLAPP motions, or the judgments and orders of dismissals entered pursuant to those orders. Therefore, Defendants will not be required to file responsive pleadings in response to the Third Amended Complaint unless the judgments of dismissal entered pursuant to the court’s orders granting Defendants’ anti-SLAPP motions are reversed on appeal.

The court orders Plaintiffs to give notice of this order.

IT IS SO ORDERED.

DATED: October 9, 2020

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court


[1] The first cause of action for violation of civil rights under 42 U.S.C. section 1983 was not asserted against defendant State of California.

[2] Defendants Alliant Consulting, Inc. and Christa Schott also prevailed on their anti-SLAPP motion as to all causes of action against them. (Order, filed October 26, 2018.) On February 5, 2019, defendants Alliant Consult, Inc. and Christa Schott were dismissed from this action with prejudice. On December 20, 2018, Plaintiffs filed a Notice of Appeal from the order granting defendants Alliant Consulting, Inc. and Christa Schott’s anti-SLAPP motion.