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, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is NANCY L. NEWMAN. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
NANCY L. NEWMAN
GOTTLIEB DAVID K.
MCDOW ASHLEY M.
MCDOW ASHLEY MARIE
ATALLAH JOHN J.
LEONARD RICHARD C.
LANDSBERG IAN SCOTT
8/23/2019: Other - - OTHER - REQUEST FOR EXEMPTION FROM ELECTRONIC FILING SERVICE
1/9/2020: Declaration in Support of Ex Parte Application
1/13/2020: Minute Order - MINUTE ORDER (PLAINTIFF DAVID GOTTLIEB'S EX PARTE APPLICATION FOR AN ORDER ...)
2/4/2020: Motion to Compel - MOTION TO COMPEL DISCOVERY (NOT FURTHER DISCOVERY) - 1 MOVING PARTY, 1 MOTION RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET ONE
2/4/2020: Motion to Compel - MOTION TO COMPEL DISCOVERY (NOT FURTHER DISCOVERY) - 1 MOVING PARTY, 1 MOTION DEFENDANT'S RESOPNSES TO PLAINTIFF'S FORM INTERROGATORIES, SET ONE
9/18/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED...)
9/29/2020: Substitution of Attorney
9/29/2020: Motion for Leave to Amend - MOTION FOR LEAVE TO AMEND TO FILE AMENDED ANSWER
10/1/2020: Notice - NOTICE OF ERRATA RE CORRECTED HEARING DATE
10/8/2020: Reply - REPLY IN SUPPORT OF PLAINTIFF DAVID K. GOTTLIEBS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
10/20/2020: Notice - NOTICE NOTICE OF CONTINUANCE OF HEARING ON MOTION FOR SUMMARY JUDGMENT, MOTION FOR LEAVE TO AMEND ANSWER AND TRIAL SETTING CONFERENCE
11/19/2020: Notice of Ruling
11/30/2020: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DEFENDANT'S FAILURE TO APPEAR ON 11/1...)
7/20/2017: Case Management Statement
1/31/2018: Substitution of Attorney
2/27/2018: Minute Order - Minute order entered: 2018-02-27 00:00:00
11/16/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice
Hearing06/21/2021 at 09:00 AM in Department P at 1725 Main Street, Santa Monica, CA 90401; Jury TrialRead MoreRead Less
Hearing06/11/2021 at 09:00 AM in Department P at 1725 Main Street, Santa Monica, CA 90401; Final Status ConferenceRead MoreRead Less
Docketat 08:30 AM in Department P; Trial Setting Conference - HeldRead MoreRead Less
Docketat 08:30 AM in Department P; Case Management Conference - HeldRead MoreRead Less
Docketat 08:30 AM in Department P; Order to Show Cause Re: (defendant's failure to appear on 11/16/20) - HeldRead MoreRead Less
DocketMinute Order ( (Order to Show Cause Re: defendant's failure to appear on 11/1...)); Filed by ClerkRead MoreRead Less
DocketNotice of Ruling; Filed by David K. Gottlieb (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department P; Trial Setting Conference - Held - ContinuedRead MoreRead Less
DocketMinute Order ( (Trial Setting Conference)); Filed by ClerkRead MoreRead Less
Docketat 09:00 AM in Department P; Non-Jury Trial - Not Held - Advanced and VacatedRead MoreRead Less
DocketMiscellaneous-Other (CIVIL DEPOSIT ); Filed by Attorney for PlaintiffRead MoreRead Less
DocketCase Management Statement; Filed by David K. Gottlieb (Plaintiff)Read MoreRead Less
DocketStatement-Case Management; Filed by Attorney for PlaintiffRead MoreRead Less
DocketMotion to Compel; Filed by Lou Alexander (Defendant)Read MoreRead Less
DocketMotion to Compel (ARBITRATION ); Filed by Attorney for DefendantRead MoreRead Less
DocketComplaint; Filed by David K. Gottlieb (Plaintiff)Read MoreRead Less
DocketSummons Filed; Filed by Attorney for PlaintiffRead MoreRead Less
DocketComplaint FiledRead MoreRead Less
DocketCivil Case Cover SheetRead MoreRead Less
DocketSummons; Filed by PlaintiffRead MoreRead Less
Case Number: SC127359 Hearing Date: May 5, 2021 Dept: P
Gottlieb v. Alexander, Case No. SC127359
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.
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: SC127359 Hearing Date: October 29, 2020 Dept: P
Gottlieb v. Alexander, Case No. SC127359
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: SC127359 Hearing Date: February 28, 2020 Dept: P
David K. Gottlieb v. Lou Alexander Case No. SC127359
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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