This case was last updated from Los Angeles County Superior Courts on 01/22/2021 at 07:14:58 (UTC).

ELIZABETH TAYLOR ET AL VS ALKIVIADES DAVID ET AL

Case Summary

On 02/02/2017 ELIZABETH TAYLOR filed a Labor - Wrongful Termination lawsuit against ALKIVIADES DAVID. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ANN I. JONES, BARBARA R. JOHNSON and EDWARD B. MORETON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9025

  • Filing Date:

    02/02/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ANN I. JONES

BARBARA R. JOHNSON

EDWARD B. MORETON

 

Party Details

Plaintiffs, Petitioners, Respondents and Cross Defendants

TAYLOR ELIZABETH

JONES CHASITY

ROES 1 THROUGH 25 INCLUSIVE

CLEAVER GEORGE SAMUEL

NAMED ALEXANDER KRAKOW + GLICK LLP NOT

Defendants, Respondents and Appellants

HOLOGRAM USA INC

DAVID ALKIVIADES

FILMON.TV INC.

HOLOGRAM USA ENTERTAINMENT INC

FILMON.TV NETWORKS INC

FILMON MEDIA HOLDINGS INC

FILMON.TV INC

ALKI DAVID PRODUCTIONS INC

DOES 1 THROUGH 25 INCLUSIVE

ANAKANDO MEDIA GROUP USA

FILMON.TV NETWORKS INC.

ALKI DAVID PRODUCTIONS INC.

FILMON MEDIA HOLDINGS INC.

HOLOGRAM USA ENTERTAINMENT INC.

FILMON.TV UK LIMITED

Defendants, Respondents, Cross Defendants and Appellants

HOLOGRAM USA ENTERTAINMENT INC

TAYLOR ELIZABETH

FILMON.TV NETWORKS INC

FILMON MEDIA HOLDINGS INC

FILMON.TV INC

ALKI DAVID PRODUCTIONS INC

HOLOGRAM USA INC

DAVID ALKIVIADES

JONES CHASITY

DOES 1 THROUGH 25 INCLUSIVE

ANAKANDO MEDIA GROUP USA

FILMON.TV NETWORKS INC.

ALKI DAVID PRODUCTIONS INC.

FILMON MEDIA HOLDINGS INC.

HOLOGRAM USA ENTERTAINMENT INC.

FILMON.TV INC.

FILMON.TV UK LIMITED

Defendant, Respondent, Cross Plaintiff and Appellant

DAVID ALKIVIADES

Cross Defendant and Not Classified By Court

CLEAVER GEORGE SAMUEL

19 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

BLOOM LISA ESQ

GOLDSTEIN ALAN

CHORA JOSEPH

Defendant, Respondent and Cross Plaintiff Attorneys

ROTHMAN BARRY K. ESQ.

GAROFALO ELLYN S ESQ.

KALTGRAD AMIR

Not Classified By Court Attorney

YEE STEVEN R. ESQ.

 

Court Documents

Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

12/17/2020: Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

Objection - OBJECTION JUDGMENT CREDITOR'S OBJECTION TO REQUEST FOR JUDICIAL NOTICE IN CONNECTION WITH PENDING MOTION FOR CHARGING ORDERECLARATION OF STEPHEN F. BIEGENZAHN

1/5/2021: Objection - OBJECTION JUDGMENT CREDITOR'S OBJECTION TO REQUEST FOR JUDICIAL NOTICE IN CONNECTION WITH PENDING MOTION FOR CHARGING ORDERECLARATION OF STEPHEN F. BIEGENZAHN

Reply - REPLY PLAINTIFF'S REPLY TO THE ENTITY DEFENDANTS' RESPONSE TO PLAINTIFF'S PROFFER OF SAMUEL CLEAVER

8/20/2019: Reply - REPLY PLAINTIFF'S REPLY TO THE ENTITY DEFENDANTS' RESPONSE TO PLAINTIFF'S PROFFER OF SAMUEL CLEAVER

Application and Order for Appearance and Examination

8/29/2019: Application and Order for Appearance and Examination

Proof of Personal Service

12/30/2019: Proof of Personal Service

Reply - REPLY PLAINTIFF ELIZABETH TAYLORS REPLY TO MOTION FOR LEAVE TO FILE A SUPPLEMENTAL PLEADING OR, IN THE ALTERNATIVE, FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT

2/10/2020: Reply - REPLY PLAINTIFF ELIZABETH TAYLORS REPLY TO MOTION FOR LEAVE TO FILE A SUPPLEMENTAL PLEADING OR, IN THE ALTERNATIVE, FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RESCHEDULED HEARING ON APPLICATION FOR ORDER FOR APPEARANCE A...) OF 03/23/2020

3/23/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RESCHEDULED HEARING ON APPLICATION FOR ORDER FOR APPEARANCE A...) OF 03/23/2020

Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE; HEARING - OTHER JOINDER TO DEFENDAN...)

9/4/2020: Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE; HEARING - OTHER JOINDER TO DEFENDAN...)

Minute Order - MINUTE ORDER (COURT ORDER RE: ORDER OF DISMISSAL)

9/24/2020: Minute Order - MINUTE ORDER (COURT ORDER RE: ORDER OF DISMISSAL)

Motion in Limine - MOTION IN LIMINE NO 1 TO EXCLUDE OF ALL EVIDENCE

7/19/2019: Motion in Limine - MOTION IN LIMINE NO 1 TO EXCLUDE OF ALL EVIDENCE

Request for Judicial Notice

7/25/2019: Request for Judicial Notice

Opposition - OPPOSITION TO MOTION IN LIMINE NO. 3

7/30/2019: Opposition - OPPOSITION TO MOTION IN LIMINE NO. 3

Reply - REPLY TO OPPOSITION TO MOTION IN LIMINE NO. 6

8/5/2019: Reply - REPLY TO OPPOSITION TO MOTION IN LIMINE NO. 6

PLAINTIFFS' OPPOSITION TO ALKIVIADES DAVID'S MOTION FOR LEAVE TO FILE COMPULSORY CROSS-COMPLAINT AND PLAINTIFFS' REQUEST FOR SANCTIONS; DECLARATION OF ALAN GOLDSTEIN

2/27/2018: PLAINTIFFS' OPPOSITION TO ALKIVIADES DAVID'S MOTION FOR LEAVE TO FILE COMPULSORY CROSS-COMPLAINT AND PLAINTIFFS' REQUEST FOR SANCTIONS; DECLARATION OF ALAN GOLDSTEIN

Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION FOR HEARING ON PRO HAV VICE APPLICATION; AND ORDER THERON

4/2/2019: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION FOR HEARING ON PRO HAV VICE APPLICATION; AND ORDER THERON

Notice - NOTICE OF MAY 28, 2019 MINUTE ORDER

5/31/2019: Notice - NOTICE OF MAY 28, 2019 MINUTE ORDER

PLAINTIFFS' FIRST AMENDED COMPLAINT FOR DAMAGES 1. EMPLOYMENT DISCRIMINATION- SEXUAL HARASSMENT IN VIOLATION OF FEHA; ETC.

9/14/2017: PLAINTIFFS' FIRST AMENDED COMPLAINT FOR DAMAGES 1. EMPLOYMENT DISCRIMINATION- SEXUAL HARASSMENT IN VIOLATION OF FEHA; ETC.

PLAINTIFFS' NOTICE OF MOTION AND MOTION TO COMPEL MARY RIZZO'S TESTIMONY AND PRODUCTION OF DOCUMENTS AT ORAL DEPOSITION; DECLARATION OF ALAN GOLDSTEIN

10/3/2017: PLAINTIFFS' NOTICE OF MOTION AND MOTION TO COMPEL MARY RIZZO'S TESTIMONY AND PRODUCTION OF DOCUMENTS AT ORAL DEPOSITION; DECLARATION OF ALAN GOLDSTEIN

760 More Documents Available

 

Docket Entries

  • 09/09/2021
  • Hearing09/09/2021 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Trial Setting Conference

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  • 03/09/2021
  • Hearing03/09/2021 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Application for Order for Appearance and Examination

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  • 03/09/2021
  • Hearing03/09/2021 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion - Other Appointment of a Limited Receiver (Res ID: 9716)

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  • 03/09/2021
  • Hearing03/09/2021 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Application for Order for Appearance and Examination

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  • 02/10/2021
  • Hearing02/10/2021 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Application for Order for Appearance and Examination

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  • 02/10/2021
  • Hearing02/10/2021 at 08:30 AM in Department 73 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Application for Order for Appearance and Examination

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  • 01/20/2021
  • DocketNotice (of Ruling on Order to Appear for Examination and Notice of Continuance of Examination (McDougall)); Filed by Chasity Jones (Plaintiff)

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  • 01/20/2021
  • DocketNotice (of Ruling on Order to Appear for Examination and Notice of Continuance of Examination (Beckham)); Filed by Chasity Jones (Plaintiff)

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  • 01/19/2021
  • Docketat 08:30 AM in Department 73; Hearing on Application for Order for Appearance and Examination ( Mindy Beckham on behalf of Stewart Title (Res ID 9063)) - Held - Continued

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  • 01/19/2021
  • Docketat 08:30 AM in Department 73; Hearing on Application for Order for Appearance and Examination (Megan Dougall on behalf of AXOS Bank (Res ID 1878)) - Held - Continued

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1,194 More Docket Entries
  • 03/15/2017
  • DocketCROSS-COMPLAINT FOR DAMAGES FOR: 1. CIVIL EXTORTION; AND 2. INTINTIONAL INFLICTION OF EMOTIONAL DISTRESS.

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  • 03/15/2017
  • DocketCross-Complaint; Filed by Alkiviades David (Defendant)

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  • 03/15/2017
  • DocketSummons; Filed by Alkiviades David (Defendant)

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  • 03/01/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 03/01/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 02/17/2017
  • DocketProof of Service (not Summons and Complaint); Filed by Chasity Jones (Plaintiff); Elizabeth Taylor (Plaintiff)

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  • 02/17/2017
  • DocketAMENDED PROOF OF SERVICE

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  • 02/02/2017
  • DocketCOMPLAINT FOR DAMAGES 1. EMPLOYMENT DISCRIMINATION SEXUAL HARASSMENT IN VIOLATION OF FEHA; ETC.

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  • 02/02/2017
  • DocketSUMMONS

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  • 02/02/2017
  • DocketComplaint; Filed by Chasity Jones (Plaintiff)

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Tentative Rulings

Case Number: BC649025    Hearing Date: January 12, 2021    Dept: 73

1/12/2021

Dept. 73

Rafael Ongkeko, Judge presiding

CHASITY JONES v. ALKIVIADES DAVID, et al.  (BC649025; lead plaintiff is Elizabeth Taylor)

Counsel for Judgment Creditor Chasity Jones: Joseph Chora, Stephen Biegenzahn (Chora Young)

Counsel for Judgment Debtors: Fred Heather, Elias Dabaie (Glaser Weil Fink Howard Avchen & Shapiro LLP)

matterS:

Judgment Creditor’s motions for (all filed 10/30/2020):

TENTATIVE RULING

Motion for Assignment Order: The court grants the motion. Alternatively, the court will deny the motion on the condition that Judgment Debtors bond the appeal for double the judgment amount under CCP § 917.1(b).

Motion for Charging Order: Judgment Debtors’ request for a judicial notice in their opposition is denied. Judgment Creditor’s motion for a charging order is denied for failing to serve all interested entities. That denial is without prejudice to Jones’ filing another motion for a charging order, which cures all procedural defects.

Motion for Receiver: The court denies the motion without prejudice to Jones' refiling another motion to appoint a receiver with specific, detailed evidence that Jones has exhausted post-judgment remedies to no avail.

DISCUSSION

Judgment

On June 12, 2019, after a jury trial, the court entered judgment in favor of Plaintiff and Judgment Creditor Chasity Jones and against:

The court amended the judgment on September 26, 2019 to add costs and attorneys’ fees. On February 11, 2020 the court issued a writ of execution against Judgment Debtors in the total amount of $15,556,407.66, apportioning $12,727,679.47 of the judgment to David and the remaining $2,828,714.75 to Film On and Hologram, jointly and severally. Judgment Debtors have not voluntarily paid any amounts due on the judgment.

Pending Motions[1]

DISCUSSION

  1. Motion for Assignment Order

Code of Civil Procedure section 708.510(a) states, in relevant part:

(a) Except as otherwise provided by law, upon application of the judgment creditor on noticed motion, the court may order the judgment debtor to assign to the judgment creditor or to a receiver appointed pursuant to Article 7 (commencing with Section 708.610) all or part of a right to payment due or to become due, whether or not the right is conditioned on future developments, including but not limited to the following types of payments:

(1) Wages dues from the federal government that are not subject to withholding under an earnings withholding order.

(2) Rents.

(3) Commissions. 

(4) Royalties.

(5) Payments due from a patent or copyright.

(6) Insurance policy loan value. 

The legislative comments to § 708.510 state:

Section 708.510 provides a new procedure for reaching certain forms of property that cannot be reached by levy under a writ of execution, such as the nonexempt loan value of an unmatured life insurance, endowment, or annuity policy. See Sections 699.720(a) (6), 704.100. It also provides an optional procedure for reaching assignable forms of property that are subject to levy, such as accounts receivable, general intangibles, judgments, and instruments. This section does not make any property assignable that is not already assignable. This remedy may be used alone or in conjunction with other remedies provided in this title for reaching rights to payment, such as execution, orders in examination proceedings, creditors' suits, and receivership. The use of this remedy is subject to limitations on the time for enforcement of judgments. See Sections 683.010-683.220.

Cal. Civ. Proc. Code § 708.510 (Legislative Committee Comments re 1982 Addition)

California Code of Civil Procedure section 708.510(c), further provides: 

[I]n determining whether to order an assignment or the amount of an assignment pursuant to subdivision (a), the court may take into consideration all relevant factors, including the following:

(1) The reasonable requirements of a judgment debtor who is a natural person and of persons supported in whole or in part by the judgment debtor.

(2) Payments the judgment debtor is required to make or that are deducted in satisfaction of other judgments and wage assignments, including earnings assignment orders for support.

(3) The amount remaining due on the money judgment.

(4) The amount being or to be received in satisfaction of the right to payment that may be assigned.

The Court may order the assignment of property only to the extent necessary to satisfy the money judgment. (Cal. Civ. Proc. Code § 708.510(d)).¿ The motion must include sufficient facts to permit the Court to make a determination that the payment is assignable to the judgment creditor.¿ (Kracht ¿(1990) 219 Cal. App. 3d 1019, 1023.)¿

Jones seeks an order assigning to Jones all Judgment Debtors’ payment rights from various entities. (See Notice at 2:17-3:5 for list of 17 entities).[2] In support of this application, Jones argues:

  1. Motion for Charging Order

  1. Opposition RJN

Judgment Debtors’ request for judicial notice in their opposition is denied as irrelevant to the issues in the motion.

  1. Merits

A judgment creditor may move for a charging order, which allows a court to transfer the judgment debtors’ interests in partnerships and other entities to the judgment creditor. (Cal. Corp. Code § 17705.03(a); Cal. Civ Proc. Code § 708.310). “If a money judgment is rendered against a partner or member but not against the partnership or limited liability company, the judgment debtor’s interest in the partnership or limited liability company may be applied toward the satisfaction of the judgment by an order charging the judgment debtor's interest pursuant to Section 15907.3, 16504, or 17705.03 of the Corporations Code.” (Cal. Civ. Proc. Code § 708.310).

Further, pursuant to California Corporations Code section 17705.03:

“(a) On application by a judgment creditor of a member or transferee, a court may enter a charging order against the transferable interest of the judgment debtor for the unsatisfied amount of the judgment. A charging order constitutes a lien on a judgment debtor's transferable interest and requires the limited liability company to pay over to the person to which the charging order was issued any distribution that would otherwise be paid to the judgment debtor.

(b) To the extent necessary to effectuate the collection of distributions pursuant to a charging order in effect under subdivision (a), the court may do any of the following:

(1) Appoint a receiver of the distributions subject to the charging order, with the power to make all inquiries the judgment debtor might have made.

(2) Make all other orders necessary to give effect to the charging order.

(3) Upon a showing that distributions under a charging order will not pay the judgment debt within a reasonable time, foreclose the lien and order the sale of the transferable interest. The purchaser at the foreclosure sale obtains only the transferable interest, does not thereby become a member, and is subject to Section 17705.02.

(c) At any time before foreclosure under paragraph (3) of subdivision (b), the member or transferee whose transferable interest is subject to a charging order under subdivision (a) may extinguish the charging order by satisfying the judgment and filing a certified copy of the satisfaction with the court that issued the charging order.

(d) At any time before foreclosure under paragraph (3) of subdivision (b), a limited liability company or one or more members whose transferable interests are not subject to the charging order may pay to the judgment creditor the full amount due under the judgment and thereby succeed to the rights of the judgment creditor, including the charging order.

(e) This title does not deprive any member or transferee of the benefit of any exemption laws applicable to the member's or transferee's transferable interest.

(f) This section provides the exclusive remedy by which a person seeking to enforce a judgment against a member or transferee may, in the capacity of judgment creditor, satisfy the judgment from the judgment debtor's transferable interest.”

(Cal. Corp. Code § 17705.03.) A lien on a judgment debtor’s interest in a partnership or LLC is created by service of a notice of motion for a charging order on the judgment debtor and either (1) all or the partnership, or (2) all members or the LLC.   (Cal. Civ. Proc. Code § 708.320(a)).   (Cal. Civ. Proc. Code § 416.40(a)).

Jones has provided the court with the statutory authority for a charging order. In turn, the court addresses each of the Judgment Debtors’ arguments in opposition:

First, the Judgment Debtors argue that Jones has not showed that David has any transferable interest in the entities. In the Moving Declaration of Stephen Biegenzahn, however, Judgment Creditor provided a copy of Judgment Debtors’ 2017 tax return in which the Judgment Debtors report interests in various entities. [See Mvg. Biegenzahn Decl., Ex. D]. Further Jones’ counsel attaches bank statements that show payments transferred from other entities to David. [See Id., Exs. E and F]. The court finds that this is sufficient evidence to establish the Judgment Debtors’ interest in these entities. In their opposition, although Judgment Debtors “question” the sufficiency of this evidence, notably, Judgment Debtors do not contest or offer any evidence that they do not have any interests in any of these entities, let along provide the court of evidence of such.

Second, Judgment Debtors argue that the motion should be denied because Jones failed to serve the entities. Judgment Debtors are correct that a charging lien cannot be created until the entities at issue are served. Jones argues that an ORAP lien was created, which reaches every asset of a judgment debtor. However, in so arguing, Jones is conflating remedies. To whatever extent the ORAP lien was created, that lien is created under §708.110. Jones can attempt to enforce that lien in any means that §708.110 and its related sections allows. Here, however, Jones is seeking to create a different lien—a lien under §708.320, which expressly requires service on the various entities. Because Jones has failed to do so, the motion is procedurally defective for lack of notice. The motion is denied on this ground without prejudice to Jones’ filing another motion for a charging order, which cures any procedural defects.[3]

  1. Motion for Appointment of Limited Receiver[4]

  1. Legal Standard

Receivers are agents of the court and may be appointed only where authorized by statute. (Marsch v. Williams (1994) 23 Cal.App.4th 238, 246). The appointment of a receiver is a drastic remedy to be utilized only in “exceptional cases.” As such, a receiver should not be appointed unless absolutely essential and because no other remedy will serve its purpose. (City & County of San Francisco v. Daley (1993) 16 Cal.App.4th 734, 744). A plaintiff who seeks appointment of a receiver of certain property has the burden to establish by a preponderance of the evidence that the appropriate factual predicates are present. (See, by analogy, Alhambra-Shumway Mines, Inc. v. Alhambra Gold Mine Corp. (1953) 116 Cal.App.2d 869, 873).

A receiver may be appointed if the court finds that “considering the interests of both the judgment creditor and the judgment debtor, the appointment of a receiver is a reasonable method to obtain the fair and orderly satisfaction of the judgment.” (Cal. Civ. Proc. Code § 708.620). Although an enforcement-of-judgment receiver is specifically contemplated by statute, general receivership law appointments, qualifications, powers, rights, and duties applies. (Cal. Civ. Proc. Code § 708.610). Accordingly, receivers appointed after a judgment may (1) carry the judgment into effect; (2) dispose of property pursuant to the judgment; or (3) preserve property while the judgment is on appeal. (Cal. Civ. Proc. Code §§ 564(b)(3)-(4); see also Gold v. Gold Realty Co. (2003) 114 Cal.App.4th 791, 804). Where appropriate, “[a] court may appoint a ‘limited purpose receiver,’ leaving the parties to operate remaining aspects of a business.” (Gold, supra, at 802.)  Further, the court may appoint a receiver of the share of the distributions due or to become due to the judgment debtor in respect to the limited liability company and may make all other orders, directions, accounts, and inquiries that the judgment debtor might have made or that the circumstances of the case may require.  (Cal. Corp. Code §1.7302(a)).

Courts have found cause to appoint a receiver in the face of a recalcitrant judgment debtor. (See e.g., Sibert v. Shaver (1952) 113 Cal.App.2d 19, 21 (affirming an appointment when debtor announces an intention to “go bankrupt” instead of “pay[ing] either of plaintiffs a nickel.”); see also Olsan v. Comora (1977) 73 Cal.App.3d 642, 644-645 (affirming the appointment of a receiver when there is some evidence that the judgment debtor has structured his assets to preclude easy levy); Crocker National Bank v. O'Donnell (1981) 115 Cal. App. 3d 264, 266 (appointing a receiver to aid in the execution of a money judgment against a doctor whose conduct made it impossible for the judgment creditor to reach his assets without the aid of a court-appointed receiver was proper).

  1. Analysis

Here, Jones argues that Judgment Debtors have been evasive during the judgment enforcement process, that David has thwarted the process in ORAP proceedings, that the entity Judgment Debtors have not complied with Earnings Withholding Orders, and that David has commingled assets.

Judgment Debtors make the following arguments, which the court addresses:

First, the Judgment Debtors argue that a receiver should not be appointed because the judgment is on appeal. Contrary to the Judgment Debtors’ argument, an appeal does not halt the enforcement of a judgment. (Cal .Civ. Proc. Code § 917.1(b)). Further, the courts have expressly contemplated the use of a receiver to preserve property on appeal. (Cal. Civ. Proc. Code §564(b)(3),(4); Gold, supra, 114 Cal.App.4th at 804).

Second, the Judgment Debtors argue that their interests are not being considered. They contend that various entities in which David has an interest have been suffering financial hardship for several years, and Covid-19 has made it worse. They argue that they will suffer prejudice because the judgment should be overturned. In so arguing, however, Judgment Debtors have not considered the interests of the Judgment Creditor. While they may be suffering financial hardship, they have not made any showing that they are completely unable to pay any portion of the judgment to Jones. Simply because they are making less money does not mean that they do not have any money to pay any portion of the judgment. While they do not dispute that David owns interests in various companies and real property in Malibu, there is no evidence that the Judgment Debtors have made any good-faith efforts to satisfy even $1 of the judgment or what actual hardship they are suffering by paying any portion. Further, Judgment Debtors may simply bond the appeal to preserve all parties’ interest if they would like to stop the enforcement of the judgment if they believe the judgment is invalid. The court finds that the equities weigh in favor of Judgment Creditor.

Finally, Judgment Debtors argue that Judgment Creditor has not offered sufficient evidence to appoint a Receiver. The court notes that the court has witnessed David’s obstructionist answers and general refusal to cooperate in ORAP proceedings. Given that the circumstantial evidence shows that assets do exist from which to satisfy part of the judgment, and given the Judgment Debtors’ obstructionist conduct at hearings to date, the court finds that there may be grounds to appoint a limited receiver. However, as Judgment Debtors point out, the evidence on which Jones relies is insufficient to establish that Jones has sufficiently exhausted less drastic remedies:

The record, therefore, is insufficient to establish that Jones has exhausted remedies to warrant the appointment of a receiver at this time.[5] The court denies the motion without prejudice to Jones' refiling another motion to appoint a receiver with specific, detailed evidence that Jones has exhausted post-judgment remedies to no avail.[6]

Unless waived, notice of rulings by moving parties.


[1]The court notes that Judgment Creditor cites legal authority in footnotes, rather than the body of the memorandum. The court admonishes Judgment Creditor that, in the future, Judgment Creditor should cite legal authority in the body of the memorandum of points and authorities, rather than footnotes to ensure the court that Judgment Creditor is not circumventing the page-limit rules.

[2] The court notes that in the motion for an assignment order, Jones does not provide an evidentiary basis for these 17 entities. However, in the evidence for the concurrently filed motion for a charging order, Jones attaches evidence that Judgment Debtors had an interest in these entities. The court, having full discretion to consider the court’s record, therefore, considers that evidence for this motion. The court notes that Judgment Debtors do not object to this in their opposition and, therefore, have waived any objections to the court’s considering this evidence. Further, Judgment Debtors have incorporated their evidence from their opposition to the charging order into their opposition to this motion, which the court has considered.

[3] As for Judgment Debtors’ remaining arguments, the court does not find those arguments persuasive. Judgment Debtors again argue that the judgment should be void due to perjury, fraud, etc. Further, Judgment Debtors argue that granting the charging order would be inequitable. However, as the court discussed above, Judgment Debtors’ bonding the appeal would alleviate Judgment Debtors’ concerns. The merits of the judgment are not at issue now. Further, the court finds that the equities weigh in favor of a judgment creditor being able to have her judgment satisfied and that property be preserved pending an appeal. As stated above, bonding the appeal would alleviate Judgment Debtors’ concerns and stop the enforcement of the judgment.

[4]The court admonishes Judgment Creditor that, in future filings, every sentence in the statement of facts must be cited to the evidentiary record in the body of the brief. There are multiple facts without any evidentiary citation whatsoever, while others have citations in footnotes, forcing the court to scour the record to trace the evidentiary basis of Judgment Creditor’s factual contentions.

[5] The court notes that Judgment Debtors argue that Plaintiff overstates the testimony of Liudmyla “Lusi” Kutova and Mykola “Nick” Kutovyy. The court, however, considers that testimony circumstantial evidence of instances in which David did not adhere to the corporate form.

[6]For future reference, to the extent that Jones refiles a motion to appoint a receiver, the court notes that the current proposed receivership order is unclear regarding (1) the receiver’s ability to collect/enforce certain post-judgment orders/liens and what the Receiver will be collecting (i.e., what is the scope of the receivership estate), (2) how the Receiver shall be paid (from receivership estate first or only after final accounting, etc.), and/or (3) the receiver’s duties to the court, including inventories and accounting under Cal. R. Ct. 3.1181 and 3.1182. The proposed order does not parallel the language of the motion, in which Jones represents to the court that Jones merely wants a limited receiver to “collect and receive the earnings, income, imputed income or other amounts subject the concurrently filed Motion for Assignment Order and Motion for Charging Order.” (Motion, 14:12-15). Later in the motion, Jones states that the receiver shall also help enforce the EWO, as well. (Motion, 16:19-20). These “duties” are not made clear in the proposed order.

Case Number: BC649025    Hearing Date: August 26, 2020    Dept: 73

8/26/2020

Dept. 73

Rafael Ongkeko, Judge presiding

ELIZABETH TAYLOR, et al. v. ALKIVIADES DAVID, et al.  (BC649025)

Counsel for plaintiff/opposing party Elizabeth Taylor: Lisa Bloom; Alan Goldstein (The Bloom Firm)

Counsel for entity defendants/moving parties Hologram USA, Inc., et al.: Ellyn Garofalo; Amir Kaltgrad (Venable)

Counsel for defendant Alkiviades David/joining party re anti-SLAPP: None (self-represented)

matters:

DeFendants’ SPECIAL MOTION TO STRIKE PLAINTIFF TAYLOR’S SUPPLEMENTAL COMPLAINT (filed 4/6/2020); defendant david’s joinder thereto (FILED 4/7/2020)

DEFENDANTS’ DEMURRER TO PLAINTIFF’S SUPPLEMENTAL COMPLAINT (filed 4/6/2020)

TENTATIVE RULINGS

Defendants’ anti-SLAPP motion: NO TENTATIVE AT THIS TIME. HEAR ARGUMENT.

Defendant David’s joinder to the entity defendants’ anti-SLAPP motion is granted.

Defendants’ evidentiary objections to Taylor declaration: rulings deferred.

Demurring defendants’ request for judicial notice is granted.

The demurrer of defendants FilmOn Media Holdings, Inc.; FilmOn.TV Networks, Inc., Alki David Productions, Inc., and Anakando Media Group USA to the sixth cause of action in the supplemental complaint is SUSTAINED WITHOUT LEAVE TO AMEND as to these demurring defendants only. The court will inquire about dismissals of all other defendants except David and the Hologram entities.

Discussion

Taylor’s Supplemental Complaint

Plaintiff Taylor’s supplemental complaint (filed 2/21/20), alleges that Defendants persisted in retaliatory and abusive conduct against her after she filed her original complaint on 2/2/17. The supplemental complaint adds post-complaint facts to Taylor’s Sixth Cause of Action (Retaliation in Violation of FEHA) and Eleventh Cause of Action (Intentional Infliction of Emotional Distress).

Anti-SLAPP Motion

On April 6, 2020 entity Defendants Hologram USA, Inc., Filmon Media Holdings, Inc., Filmon.TV Networks, Inc., Alki David Productions, Inc., and Anakando Media Group USA filed a special motion to strike Taylor’s supplemental complaint pursuant to California Code of Civil Procedure section 425.16. On April 7, 2020 Defendant Alkiviades David filed a joinder to the motion. On April 29, 2020 Taylor filed an opposition. On May 5, 2020, Defendants filed a reply and evidentiary objections to Taylor’s declaration.

The court defers any further discussion of the anti-SLAPP motion at this time.

Demurrer

On April 6, 2020 four entity Defendants--FilmOn Media Holdings, Inc., Filmon.TV Networks, Inc., Alki David Productions, Inc., and Anakando Media Group USA (the “Dismissed Defendants”)-- demur to the sixth cause of action in the Taylor’s supplemental complaint on the grounds that they were all previously dismissed with prejudice from this action, which now precludes Plaintiff from pursuing any claims against them in her Supplemental Complaint. On May 1, 2020 Plaintiff filed an opposition. On May 7, 2020 the Dismissed Defendants filed a reply.

ANALYSIS—DEMURRER

The only issue on demurrer is whether or not Plaintiff can assert the sixth cause of action in the supplemental complaint against the Dismissed Defendants. The Dismissed Defendants argue no—a dismissal with prejudice acts as a final judgment on the merits, which precludes Plaintiff from pursuing these claims against them. Plaintiff argues that a new trial is similar to a retrial and, therefore, Plaintiff can relitigate these claims against the Dismissed Defendants. The court agrees with the Dismissed Defendants.

On August 27, 2019, during the Taylor trial, the court issued a minute order that stated, among other things:

Defendants' objections to the production of documents relating to Filmon.TV Networks, Inc. and Filmon Media Holdings, Inc. on the grounds that these parties have been dismissed with prejudice are SUSTAINED and all document requests relating to those parties are DENIED on relevance grounds.

The following trial day, on August 28, 2019, the court issued a minute order that stated, among other things:

OUT OF THE PRESENCE OF THE TWO JURORS AND ALKIVIADES DAVID:

Defendants' motion for non-suit is heard, argued and granted as to Alki David Productions, Inc., Anakando Media Group USA and FOTV Media Networks Inc.

The Court orders Alki David Productions, Inc., Anakando Media Group, USA and FOTV Media Networks Inc. in Complaint filed by ELIZABETH TAYLOR ET AL on 02/02/2017 dismissed with prejudice. (Emphasis added.)

On the final trial day, on August 29, 2019, the parties stipulated that “the only remaining defendants at issue are Alkiviades David, Hologram USA, Inc. and Hologram USA Entertainment, Inc…”

There is no dispute between the parties that during trial proceedings all of the Dismissed Defendants were dismissed with prejudice. As a matter of law, a dismissal with prejudice is equivalent of a final judgment on the merits, barring re-litigation of the cause of action under res judicata/collateral estoppel principles. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal. 4th 788, 793 (“The statutory term ‘with prejudice’ clearly means the plaintiff's right of action is terminated and may not be revived.... [A] dismissal with prejudice ... bars any future action on the same subject matter.”); Torrey Pines Bank v. Superior Court (1989) 216 Cal. App. 3d 813, 820) (“A retraxit is equivalent to a judgment on the merits and as such bars further litigation on the same subject matter between the parties”).

Because Plaintiff previously dismissed the Dismissed Defendants with prejudice, or so stipulated, and dismissals were ordered by the court, those dismissals act as a judgment on the merits barring re-litigation of the same claims against the Dismissed Defendants. Those dismissals have not been overturned, vacated, reversed, or nullified by motion or on appeal. Plaintiff, therefore, is barred from re-litigating the same sixth cause of action against the Dismissed Defendants.

Each of Plaintiff’s arguments in opposition fail:

First, Plaintiff attempts to liken a dismissal with prejudice to a new trial. Plaintiff has not cited one case that holds that the effect of a dismissal with prejudice is like a new trial and/or that a mistrial somehow vacates or nullifies the effect of a dismissal with prejudice. Instead, each of the cases that Plaintiff cites either involves a trial court’s grant of a motion for a new trial and or a reversal of a judgment after an appeal. While the effect of a new trial and/or a reversal of a judgment on appeal is to vacate the effect a prior judgment, no such legal order is in effect that vacates or nullifies the dismissals with prejudice. Plaintiff has not identified one proceeding or order that has the effect of vacating the dismissals, let alone cite any authority that so holds.

Second, Plaintiff argues that the Dismissed Defendants only demurred to the sixth cause of action, so, “at the very least,” Taylor’s supplemental eleventh cause of action for intentional infliction of emotional distress “remains operative as to all Defendants,” including the Dismissed Defendants. As the Dismissed Defendants correctly point out, however, Plaintiff’s argument ignores Plaintiff’s own pleadings. In both the complaint and the supplemental complaint, Plaintiff only alleges the eleventh cause of action for IIED against David—not the Dismissing Defendants. The Dismissed Defendants need not demur against a cause of action that was not alleged against them.

Finally, Plaintiff argues that the supplemental complaint alleges new claims. The supplemental complaint merely adds additional allegations to provide context to Plaintiff’s primary right claim against viable defendants—a claim for retaliation under FEHA. Plaintiff’s supplemental complaint for retaliation does not allege a separate claim or a separate wrong that would resurrect her claims against otherwise dismissed parties. Plaintiff’s additional allegations merely add further circumstantial evidence of retaliatory motive.

Given the earlier dismissals with prejudice against the Dismissed Defendants, the demurrer is sustained without leave to amend as to such Defendants.

Case Number: BC649025    Hearing Date: February 19, 2020    Dept: 73

2/19/20

Dept. 73

Rafael Ongkeko, Judge presiding

ELIZABETH TAYLOR, et al. v. ALKIVIADES DAVID, et al. (BC649025)

Counsel for plaintiff Elizabeth Taylor (moving party): Lisa Bloom; Alan Goldstein (The Bloom Firm)

Counsel for defendant Alkiviades David: None (self-represented)

Counsel for defendants Hologram USA, Inc., et al. (opposing): Ellyn Garofalo; Amir Kaltgrad (Venable)

PLAINTIFF’S MOTION FOR LEAVE TO FILE A SUPPLEMENTAL PLEADING OR, IN THE ALTERNATIVE, FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT (filed 1/22/20)

TENTATIVE RULING

Defendants’ request for judicial notice is granted.

Plaintiff’s motion for leave to file a supplemental complaint is GRANTED, with one condition, noted below. The proposed pleading filed as Exhibit A to the Goldstein moving declaration is deemed served this date on all parties who were served with the motion. Such parties’ responsive pleading shall be filed and served within 15 days unless the parties stipulate that the answers on file shall be deemed the responsive pleading. Plaintiff is ordered to file a stand-alone original of the supplemental complaint forthwith.

Because this change in the pleadings comes less than three months before trial, the court conditions the grant of this motion on the court’s vacating the current trial date (5/11/20), unless all parties confirm at this hearing that they will be ready for trial on that date without any delays. Should the trial date be vacated, the court will set a trial setting conference and set a trial date consistent with the time remaining to commence the re-trial. The parties shall meet and confer and advise the court of the stipulated last day within which the re-trial must commence.

Plaintiff’s motion for leave to file a Second Amended Complaint is DENIED.

Notice of ruling by Plaintiff.

Case Number: BC649025    Hearing Date: January 22, 2020    Dept: 73

1/22/20

Dept. 73

Rafael Ongkeko, Judge presiding

ELIZABETH TAYLOR, et al. v. ALKIVIADES DAVID, et al. (BC649025)

Counsel for plaintiff Elizabeth Taylor (moving party): Lisa Bloom; Alan Goldstein (The Bloom Firm)

Counsel for defendant/cross-complainant Alkiviades David (opposing): None (self-represented) Counsel for defendants Hologram USA, et al. (opposing): Ellyn Garofalo; Amir Kaltgrad (Venable)

PLAINTIFF TAYLOR’S MOTION FOR TERMINATING SANCTIONS (filed 12/24/19)

TENTATIVE RULING

Plaintiff’s request for judicial notice is GRANTED.

Defendants’ objections and motion to strike portions of declarations and the RJN is DENIED.

Defendant David’s joinder to codefendants’ opposition is GRANTED.

Plaintiff’s motion for terminating sanctions is DENIED.

Defendant’s request for monetary sanctions is DENIED.

Discussion

Before the court is Plaintiff Taylor’s motion for terminating sanctions and request for judicial notice. Defendants Hologram USA Inc, Hologram USA Entertain Inc, and FilmOn.TV Inc. (Entity Defendants) filed an opposition. Defendant David filed a joinder notice to the opposition. Plaintiff filed a reply.

Pursuant to Code of Civil Procedure §§ 128, 575.2, and 2023.030, Plaintiff Taylor moves for terminating sanctions against David for his egregious and deliberate misconduct at both trials in this action, his violation of local court rules, his repeated discovery abuses, and his continued refusal to pay discovery sanctions awards and attorneys’ fee award. Plaintiff asks the court to dismiss David’s answer and enter his default.

In opposition, the Entity Defendants argue Plaintiff is essentially seeking a reconsideration of her April 23, 2019 motion for terminating sanctions and other prior sanctions order. Defendant requests $19,785 in fees incurred in connection with opposing Plaintiff’s improper motion for reconsideration.

ANALYSIS

Entity Defendants’ Standing / David’s Joinder

As to law and motion proceedings, litigants must assert their own rights, rather those of third parties, except where: “(1) the litigant suffers a distinct and palpable injury in fact, thus giving him or her a concrete interest in the outcome of the dispute; (2) the litigant has a close relationship to the third party such that the two share a common interest; and (3) there is some hindrance to the third party's ability to protect his or her own interests.” (Matrixx Initiatives, Inc. v. Doe (2006) 138 Cal.App.4th 872, 877, 881; see also Chen v. Superior Court (2004). 118 Cal.App.4th 761, 775 [stating “a party who can legitimately and individually claim a ‘beneficial interest’ in the subject matter” has standing to oppose].)

Here, Plaintiff argues the Entity Defendants do not have standing to bring an opposition. However, Plaintiff’s request for the court to strike David’s answer and enter default will necessarily impact the entity Defendants. The Entity Defendants have a close relationship to David such that the entities and David share a common interest. And, because David is currently self-represented, there is some hindrance in his ability to file an opposition like the represented entities. As such, the court concludes that the entity Defendants have standing to oppose Plaintiff’s motion.[1]

Plaintiff’s Motion for Terminating Sanctions Is Denied

Plaintiff’s Motion Is Not for Reconsideration

While Plaintiffs Jones and Taylor filed a motion for terminating sanctions on April 23, 2019, that motion was for sanctions against all Defendants. Here, in contrast, Plaintiff Taylor moves for terminating sanctions against only Defendant David. As such, this is not a motion for reconsideration of the prior terminating sanction motion.

Entity Defendants’ request for $19,785 in attorney fees is DENIED.

Sanctions Under CCP § 128 (Court’s Inherent Authority)

Every court has statutory power to preserve and enforce order in its immediate presence (Code Civ. Proc., § 128(a)(1)), to enforce order in the proceedings before it or before a person or persons empowered to conduct a judicial investigation under its authority (id., § 128(a)(2)), to provide for the orderly conduct of proceedings before it or its officers (id., § 128(a)(3)), and to compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein (id., § 128(a)(4)).

In Taylor’s trial, before whom another judge presided, the court there (Judge Christopher Lui) imposed both monetary and evidentiary sanctions against David by reducing David’s time in examining witnesses, etc. Plaintiff now argues terminating sanctions are warranted because of David’s egregious misconduct in the Taylor trial, as well as misconduct in other trials (Jones, Reeves, and Khan trials) before other judges. However, Plaintiff does not cite any authority that permits this court to sanction David based on his conduct in other trials before different judicial officers. The lack of such authority is not surprising.

Sanctions are not warranted under Code of Civil Procedure § 128.

Sanctions Under CCP § 575.2 (Non-Compliance with Local Rules)

“Although authorized to impose sanctions for violation of local rules [], courts ordinarily should avoid treating a curable violation of local procedural rules as the basis for crippling a litigant's ability to present his or her case.” (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1364; see also Kalivas v. Barry Controls Corp. (1996) 49 Cal.App.4th 1152, 1161 [“An order based upon a curable procedural defect (such as the failure to file a separate statement), which effectively results in a judgment against a party, is an abuse of discretion.”].)

Plaintiff argues sanctions are warranted under Code of Civil Procedure section 575.2(a) because David violated Local Rules 3.120 (policy against indication as to testimony) and 3.130 (communication to jurors). However, Plaintiff fails to recognize that, in response to David’s violation of those local rules, the trial court exercised its discretion and issued both monetary and evidentiary sanctions by reducing David’s time to examine witnesses, present evidence, and argue.

Sanctions are not warranted under Code of Civil Procedure § 575.2.

Sanctions Under CCP § 2023.030 (Discovery)

The court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030(d).) Generally, less drastic sanctions are imposed first. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796, superseded by statute on another ground as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444).

Further, discovery sanctions “cannot go further than is necessary to accomplish the purpose of discovery” (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613) and may not be used as punishment (Rail Services of America v. State Comp. Ins. Fund (2003) 110 Cal.App.4th 323, 331-332). “In other words, discovery sanctions exist ‘not to provide a weapon for punishment for past violations or penalty for past conduct but to secure compliance with orders of the court.’ ” (Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183.)

Here, Plaintiff has not established a violation of a discovery order that might justify more severe discovery sanctions than the previously imposed monetary sanctions or the pervasive discovery conduct necessary to justify terminating sanctions. The evidence presented demonstrates that Plaintiff complied with the court’s orders to appear for his deposition, supplement his discovery responses, and produce additional documents. Plaintiff also fails to cite any authority that permits terminating sanctions for failure to pay sanctions or a fee award. As Defendants properly cite, Code of Civil Procedure § 177.5 provides Plaintiff with a remedy for Defendant’s failure to pay sanctions.

Sanctions are not warranted under Code of Civil Procedure § 2023.030.

Plaintiff’s motion for terminating sanctions is DENIED.

Unless waived, notice of ruling by entity defendants.


[1] The result would be the same even if Defendants somehow lacked standing.

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