This case was last updated from Los Angeles County Superior Courts on 06/03/2022 at 10:44:43 (UTC).

DAVID K. GOTTLIEB VS LOU ALEXANDER

Case Summary

On 04/11/2017 DAVID K GOTTLIEB filed a Contract - Other Contract lawsuit against LOU ALEXANDER. This case was filed in Los Angeles County Superior Courts, Beverly Hills Courthouse located in Los Angeles, California. The Judges overseeing this case are HELEN ZUKIN and NANCY L. NEWMAN. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7359

  • Filing Date:

    04/11/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

HELEN ZUKIN

NANCY L. NEWMAN

 

Party Details

Plaintiff

GOTTLIEB DAVID K.

Defendants

ALEXANDER LOU

LOU ALEXANDER

Attorney/Law Firm Details

Plaintiff Attorneys

MCDOW ASHLEY M.

MCDOW ASHLEY MARIE

ATALLAH JOHN J.

Defendant Attorneys

LEONARD RICHARD C.

WADDINGTON MICHAEL

MICHAEL WADDINGTON

LANDSBERG IAN SCOTT

 

Court Documents

Declaration - DECLARATION MONAGAS ISO MSJ MTN

2/19/2021: Declaration - DECLARATION MONAGAS ISO MSJ MTN

Motion for Summary Judgment

2/19/2021: Motion for Summary Judgment

Declaration - DECLARATION ALEXANDER ISO MSJ MTN

2/19/2021: Declaration - DECLARATION ALEXANDER ISO MSJ MTN

Proof of Service (not Summons and Complaint)

2/19/2021: Proof of Service (not Summons and Complaint)

Separate Statement

2/19/2021: Separate Statement

Motion for Leave to Amend - MOTION FOR LEAVE TO AMEND PLAINTIFF DAVID K. GOTTLIEBS NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND ADMISSIONS

3/29/2021: Motion for Leave to Amend - MOTION FOR LEAVE TO AMEND PLAINTIFF DAVID K. GOTTLIEBS NOTICE OF MOTION AND MOTION FOR LEAVE TO AMEND ADMISSIONS

Declaration - DECLARATION DECLARATION OF GERALD ABES

3/29/2021: Declaration - DECLARATION DECLARATION OF GERALD ABES

Proof of Service (not Summons and Complaint)

3/29/2021: Proof of Service (not Summons and Complaint)

Declaration - DECLARATION DECLARATION OF JOHN J. ATALLAH IN SUPPORT OF PLAINTIFF DAVID K. GOTTLIEBS MOTION TO AMEND ADMISSIONS

3/29/2021: Declaration - DECLARATION DECLARATION OF JOHN J. ATALLAH IN SUPPORT OF PLAINTIFF DAVID K. GOTTLIEBS MOTION TO AMEND ADMISSIONS

Declaration - DECLARATION DECLARATION OF THOMAS R. DARCO

3/29/2021: Declaration - DECLARATION DECLARATION OF THOMAS R. DARCO

Declaration - DECLARATION OF IAN S. LANDSBERG

4/8/2021: Declaration - DECLARATION OF IAN S. LANDSBERG

Opposition - OPPOSITION TO MOTION FOR LEAVE TO AMEND

4/8/2021: Opposition - OPPOSITION TO MOTION FOR LEAVE TO AMEND

Reply - REPLY PLAINTIFF DAVID K. GOTTLIEBS REPLY IN SUPPORT OF MOTION FOR LEAVE TO AMEND ADMISSIONS

4/14/2021: Reply - REPLY PLAINTIFF DAVID K. GOTTLIEBS REPLY IN SUPPORT OF MOTION FOR LEAVE TO AMEND ADMISSIONS

Separate Statement

4/21/2021: Separate Statement

Memorandum of Points & Authorities

4/21/2021: Memorandum of Points & Authorities

Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER MOTION TO AMEND ADMISSIONS)

4/21/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER MOTION TO AMEND ADMISSIONS)

Proof of Service (not Summons and Complaint)

4/21/2021: Proof of Service (not Summons and Complaint)

Declaration - DECLARATION OF THOMAS R. D'ARCO

4/21/2021: Declaration - DECLARATION OF THOMAS R. D'ARCO

107 More Documents Available

 

Docket Entries

  • 12/10/2021
  • Docketat 08:30 AM in Department 207, Helen Zukin, Presiding; Case Management Conference - Not Held - Vacated by Court

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  • 12/10/2021
  • Docketat 08:30 AM in Department 207, Helen Zukin, Presiding; Order to Show Cause Re: (Settlement) - Not Held - Vacated by Court

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  • 12/08/2021
  • DocketRequest for Dismissal; Filed by David K. Gottlieb (Plaintiff)

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  • 12/03/2021
  • Docketat 08:30 AM in Department 207, Helen Zukin, Presiding; Case Management Conference - Not Held - Advanced and Continued - by Court

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  • 12/03/2021
  • Docketat 08:30 AM in Department 207, Helen Zukin, Presiding; Order to Show Cause Re: (Settlement) - Not Held - Advanced and Continued - by Court

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  • 11/18/2021
  • Docketat 4:24 PM in Department 207, Helen Zukin, Presiding; Court Order

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  • 11/18/2021
  • DocketMinute Order ( (Court Order Re: Continuance of Hearing)); Filed by Clerk

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  • 11/18/2021
  • DocketCertificate of Mailing for ((Court Order Re: Continuance of Hearing) of 11/18/2021); Filed by Clerk

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  • 10/19/2021
  • Docketat 08:30 AM in Department 207, Helen Zukin, Presiding; Order to Show Cause Re: (Settlement) - Not Held - Continued - Stipulation

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  • 10/19/2021
  • Docketat 08:30 AM in Department 207, Helen Zukin, Presiding; Case Management Conference - Not Held - Continued - Stipulation

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186 More Docket Entries
  • 07/21/2017
  • DocketMiscellaneous-Other (CIVIL DEPOSIT ); Filed by Attorney for Plaintiff

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  • 07/20/2017
  • DocketCase Management Statement; Filed by David K. Gottlieb (Plaintiff)

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  • 07/20/2017
  • DocketStatement-Case Management; Filed by Attorney for Plaintiff

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  • 05/15/2017
  • DocketMotion to Compel; Filed by Lou Alexander (Defendant)

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  • 05/15/2017
  • DocketMotion to Compel (ARBITRATION ); Filed by Attorney for Defendant

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  • 04/11/2017
  • DocketComplaint; Filed by David K. Gottlieb (Plaintiff)

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  • 04/11/2017
  • DocketSummons Filed; Filed by Attorney for Plaintiff

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  • 04/11/2017
  • DocketCivil Case Cover Sheet

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  • 04/11/2017
  • DocketSummons; Filed by Plaintiff

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  • 04/11/2017
  • DocketComplaint Filed

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Tentative Rulings

Case Number: ****7359    Hearing Date: May 5, 2021    Dept: P

Tentative Ruling

Gottlieb v. Alexander, Case No. ****7359

Hearing Date May 5, 2021

Defendant Alexander’s Motion for Summary Judgment/Adjudication

Defendant Alexander hired Thomas D’Arco to help modify a loan secured by a deed of trust on Alexander’s home. Defendant alleges D’Arco sold the home under unfair and unreasonable terms pursuant to a 2012 listing agreement with Alexander. Plaintiff Gottlieb, D’Arco’s chapter 7 bankruptcy trustee, seeks to recover commission allegedly owed under a real estate listing agreement with Alexander. Defendant Alexander moves for summary judgment, arguing the listing agreement was unfair and impermissible under the rules of professional conduct.

Evidentiary Objections

Plaintiff’s Objection 1 OVERRULED, Objection 2 SUSTAINED (hearsay)

Defendant’s Objection 1 OVERRULED, Objection 2 SUSTAINED (lack of personal knowledge)

California Rules of Professional Conduct 1.8.1(formerly rule 3-300) states a lawyer shall not enter into a business transaction with a client or acquire an interest adverse to a client unless the transaction’s terms are fair and reasonable to the client, the terms are fully disclosed in writing to the client in a manner that should have been reasonably understood by the client, the client is represented by independent counsel or is advised in writing to seek the advice of an independent lawyer, and the client provides informed written consent.

Defendant argues the listing agreement did not comply with rule 1.8.1 because (1) D’Arco’s role in the listing was not transmitted in writing, (2) Alexander was not represented by independent counsel or (3) advised in writing that he should seek the advice of independent counsel and (4) D’Arco did not provide written consent to the terms of the listing. Defendant’s Separate Statement of Undisputed Material Facts (DUMF) 3-7. Defendant argues D’Arco was required to comply with these rules before entering into a listing agreement.

To support the existence of an attorney-client relationship with D’Arco, defendant points to plaintiff’s response to defendant’s requests for admission. In those initial responses, plaintiff admitted D’Arco and Alexander had an attorney-client relationship when the listing agreement was formed. DUMF 1. Alexander states D’Arco was his attorney from 2011 through 2013, supported by excerpts from the attorney-client engagement agreement and correspondence between the parties referencing an attorney-client relationship. Alexander Decl. ¶¶8-10, defendant’s exhibits 6-9. Defendant states that, even if D’Arco no longer represented him when the listing agreement was executed, Rule 1.8.1 applies to agreements between attorneys and former clients. Hunniecutt v. State Bar (1988) 44 Cal.3d 362, 370-371.

All plaintiff’s claims arise out of the listing agreement. Defendant’s evidence shows an attorney-client relationship between the parties, as well as showing the listing agreement did not comply with Rule 1.8.1. Defendant carried his initial summary judgment burden, which then shifts to plaintiff.

Plaintiff argues he never had an attorney-client relationship with defendant, and that even if such relationship existed, the listing complied with the Rules of Professional Conduct. Plaintiff notes that on April 21, 2021 the court granted plaintiff’s motion for leave to amend admissions, so plaintiff’s admission of an attorney-client relationship in response to RFAs is no longer effective. See 4/21/2021 minute order.

Plaintiff argues Abes provided the original loan modification services to defendant, and while Abes operated out of D’Arco’s office, he was not an attorney and did not hold himself out as one to defendant. Abes Decl. ¶7, D’Arco Decl. ¶¶2-5. Plaintiff argues neither D’Arco nor Abes had an attorney-client relationship with Alexander when the listing agreement was formed, but only acted as seller’s agents. D’Arco Decl. ¶8. Defendant argues the engagement agreement plaintiff cites is incomplete, missing the first two pages, and the parties’ relationship did not involve providing legal services. D’Arco Decl. ¶8. Plaintiff states Alexander was represented by attorney Steven Rein in his elder abuse lawsuit and loan modification settlement with the original lender, and Rein had no affiliation with D’Arco. Abes Decl. ¶9, 10.

D’Arco also argues that, even if he had an attorney-client relationship with Alexander, the listing agreement complied with the requirements of Rule 1.8.1. Plaintiff argues the listing terms are fair and reasonable and within the range of market rates. Plaintiff’s Exh. 2 at pg. 21. Further, D’Arco argues the listing’s terms were fully disclosed in writing, and the written agreement stated defendant should “consult an appropriate professional” if he required legal advice. Complaint Exh. B. Finally, plaintiff states defendant provided written consent to the listing agreement by signing it. Plaintiff’s Exh. 2, at pg. 21.

The engagement between the Law Offices of Thomas D’Arco and Alexander, presented as evidence by defendant, is between “law firm” and a “client.” Defendant’s Exh. 6. The engagement states “client understands and agrees that law firm is not a ‘foreclosure consultant’ and that the client has retained legal representation.’” Id. at ¶7. Plaintiff argues the version attached is incomplete and misleading but does not provide a complete copy or state how the portions cited are misleading. A written agreement between a “law firm” and a “client” stating “client has retained legal representation” establishes an attorney-client relationship. Plaintiff cannot rebut these written terms with D’Arco’s conclusory declaration. The engagement agreement is undisputed evidence that an an attorney-client relationship existed between D’Arco and Alexander.

Additionally, plaintiff failed to show the listing complied with the Rules. The disclosure language states “if you desire legal or tax advice, consult an appropriate professional,” but does not clearly advise defendant to seek independent counsel, as required by Rules 1.8.1 and predecessor Rule 3-300. Plaintiff admits Alexander signed the agreement the day it was presented to him. As a matter of law, this means defendant was not given a “reasonable opportunity to seek the advice of independent counsel.” See Ritter v. State Bar (1985) 40 Cal.3d 595, 602.

The written engagement agreement establishes an attorney-client relationship between D’Arco and Alexander. The listing agreement did not advise the client to seek independent counsel, nor was the client given reasonable opportunity to seek advice of independent counsel. The listing violates the Rules for business agreements between attorneys and clients. The listing is unenforceable, and summary judgment is GRANTED.

DUE TO THE ONGOING COVID-19 PANDEMIC PARTIES AND COUNSEL ARE ENCOURAGED TO APPEAR BY LA COURT CONNECT.



Case Number: ****7359    Hearing Date: October 29, 2020    Dept: P

 

Tentative Ruling

Gottlieb v. Alexander, Case No. ****7359

Hearing Date October 29, 2020

Plaintiff Gottlieb’s Motion for Summary Judgment

Third party real estate agent D’Arco had a listing agreement with defendant Alexander whereby D’Arco’s commission would be placed into an escrow account, then distributed. D’Arco alleges defendant failed to escrow the funds. D’Arco filed for Chapters 7 and 11 bankruptcy protection, listing the $225,000 commission as an asset.

Plaintiff, one of D’Arco’s creditors, sues defendant Alexander to recover the commission. The court issued an order deeming admitted plaintiff’s requests for admission on February 28, 2020. Plaintiff moves for summary judgment.

Admissions in response to RFAs are treated as stipulations regarding the truthfulness of the matters admitted; no other evidence is necessary. Cal. Code of Civ. Proc. ;2033.300. Matters deemed admitted are not subject to being contested through contradictory evidence. E.g. Bank of America Nat. Trust & Sav. Ass’n. v. Baker (1965) 238 Cal.App.2d 778, 779.

Unclean hands is an equitable affirmative defense that can be invoked by conduct that violates “conscience, good faith, or other equitable standards of conduct[.]” Kendall-Jackson Winery, Ltd. v. Super. Ct. (1999) 76 Cal.App.4th 970, 979.

Plaintiff argues the matters deemed admitted via the February 28, 2020 order establish every element of his causes of action for breach of the listing agreement and supplemental agreement. Defendant argues an unclean hands defense to both causes of action, alleging plaintiff violated California Rule of Professional Conduct, Rule 18.1 when forming the agreements. Defendant provides evidence the agreements were unreasonable, were not in writing and the terms were not fully disclosed, sufficient to create a triable issue of fact as to a violation of Rule 18.1, all of which could establish an affirmative defense of unclean hands. Alexander Decl. ¶¶ 15-17. Admissions to the RFAs do not defeat this defense, and defendant’s evidence raises an issue of material fact as to the validity of the affirmative defense, which is unrefuted by plaintiff. DENIED.

DUE TO THE ONGOING COVID-19 PANDEMIC, PARTIES AND COUNSEL ARE ENCOURAGED TO APPEAR VIA LA COURT CONNECT.



Case Number: ****7359    Hearing Date: February 28, 2020    Dept: P

 

Tentative Ruling

David K. Gottlieb v. Lou Alexander Case No. ****7359

Hearing Date: February 28, 2020

Plaintiff’s Motions to Compel Discovery (UNOPPOSED)

Plaintiff served form interrogatories, special interrogatories, requests for production of documents and requests for admission on July 24, 2019. Despite multiple extensions, defendant has not responded. Plaintiff moves to compel.

A party may move to compel production if the party in receipt of proper written discovery requests, including interrogatories and requests for production of documents, does not timely respond. Cal. Code Civ. Proc. ;;2030.300, 2031.300. If a party fails to timely respond to a request for admissions, the requesting party may move for an order that the truth of any matters specified in the requests be deemed admitted. Cal. Code Civ. Proc. ;0233.280. A court may impose monetary sanctions (Cal. Code Civ. Proc. ;2023.010) for failure to engage in the discovery process.

Plaintiff provides copies of the propounded discovery, with a proof of service dated July 24, 2019. Plaintiff’s Exhibits A-D. A declaration from counsel states as of February 4, 2020, defendant has not responded. Defendant does not oppose. The motion is GRANTED.

Defendant to respond without objections to the interrogatories and requests for production within 20 days. All matters in the requests for admission are deemed admitted. Sanctions are warranted. Plaintiff requests $4,000.00 in costs and fees, as well as an additional $1,500.00 for anticipated additional briefing. Atallah Decl. at ¶12. As defendant did not oppose the motions, no further briefing was required, and the additional $1,500.00 was not incurred. $4,000.00 is excessive, given the straightforward nature of these motions and plaintiff’s failure to provide justification for his claimed costs and fees. Defendant to pay $2,000.00 in sanctions, within 30 days.



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