This case was last updated from Los Angeles County Superior Courts on 10/27/2022 at 22:12:18 (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 YOLANDA OROZCO, FREDERICK C. SHALLER, DENNIS J. LANDIN, CHRISTOPHER K. LUI, EDWARD B. MORETON, JR., JAMES E. BLANCARTE, MEL RED RECANA, DAVID J. COWAN and RAFAEL A. ONGKEKO. 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

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

YOLANDA OROZCO

FREDERICK C. SHALLER

DENNIS J. LANDIN

CHRISTOPHER K. LUI

EDWARD B. MORETON, JR.

JAMES E. BLANCARTE

MEL RED RECANA

DAVID J. COWAN

RAFAEL A. ONGKEKO

 

Party Details

Respondents, Cross Defendants and Plaintiffs

TAYLOR ELIZABETH

JONES CHASITY

HOLOGRAM USA INC

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

NAMED ALEXANDER KRAKOW + GLICK LLP NOT

Defendants, Appellants and Respondents

HOLOGRAM USA INC

DAVID ALKIVIADES

FILMON.TV INC.

ANAKANDO MEDIA GROUP USA

FILMON.TV NETWORKS INC.

ALKI DAVID PRODUCTIONS INC.

FILMON MEDIA HOLDINGS INC.

HOLOGRAM USA ENTERTAINMENT INC.

FILMON.TV UK LIMITED

Appellant, Cross Plaintiff and Defendant

DAVID ALKIVIADES

Not Classified By Court

CLEAVER GEORGE SAMUEL

27 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorneys

BLOOM LISA ESQ

GOLDSTEIN ALAN

Defendant Attorneys

DABAIE ELIAS M.

COLE DANA MICHAEL

HEATHER FRED

KALTGRAD AMIR

Respondent Attorney

CHORA JOSEPH

Not Classified By Court Attorneys

BROPHY MICHAEL SCOTT

YEE STEVEN R. ESQ.

 

Court Documents

Response - RESPONSE RESPONSE TO HARMONIA MALIBU LLCS EVIDENTIARY OBJECTIONS TO JUDGMENT CREDITORS REPLY IN SUPPORT OF MOTION TO AMEND JUDGMENT TO ADD HARMONIA MALIBU LLC, A CALIFORNIA LIMITED LIABILIT

10/26/2022: Response - RESPONSE RESPONSE TO HARMONIA MALIBU LLCS EVIDENTIARY OBJECTIONS TO JUDGMENT CREDITORS REPLY IN SUPPORT OF MOTION TO AMEND JUDGMENT TO ADD HARMONIA MALIBU LLC, A CALIFORNIA LIMITED LIABILIT

Declaration - DECLARATION SUPPLEMENTAL DECLARATION OF JOSEPH CHORA IN SUPPORT OF MOTION TO AMEND JUDGMENT TO ADD HARMONIA MALIBU LLC, A CALIFORNIA LIMITED LIABILITY COMPANY AS A JUDGMENT DEBTOR

10/26/2022: Declaration - DECLARATION SUPPLEMENTAL DECLARATION OF JOSEPH CHORA IN SUPPORT OF MOTION TO AMEND JUDGMENT TO ADD HARMONIA MALIBU LLC, A CALIFORNIA LIMITED LIABILITY COMPANY AS A JUDGMENT DEBTOR

Reply - REPLY JUDGMENT CREDITORS REPLY IN SUPPORT OF MOTION TO AMEND JUDGMENT TO ADD HARMONIA MALIBU LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AS A JUDGMENT DEBTOR

10/26/2022: Reply - REPLY JUDGMENT CREDITORS REPLY IN SUPPORT OF MOTION TO AMEND JUDGMENT TO ADD HARMONIA MALIBU LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AS A JUDGMENT DEBTOR

Minute Order - MINUTE ORDER (HEARING - OTHER EVIDENTIARY HEARING (TIME ESTIMATE 4 HRS))

10/21/2022: Minute Order - MINUTE ORDER (HEARING - OTHER EVIDENTIARY HEARING (TIME ESTIMATE 4 HRS))

Stipulation and Order to use Certified Shorthand Reporter - STIPULATION AND ORDER TO USE CERTIFIED SHORTHAND REPORTER SERENA WONG, CSR #10250

10/21/2022: Stipulation and Order to use Certified Shorthand Reporter - STIPULATION AND ORDER TO USE CERTIFIED SHORTHAND REPORTER SERENA WONG, CSR #10250

Minute Order - MINUTE ORDER (HEARING ON APPLICATION FOR ORDER FOR APPEARANCE AND EXAMINATI...)

10/20/2022: Minute Order - MINUTE ORDER (HEARING ON APPLICATION FOR ORDER FOR APPEARANCE AND EXAMINATI...)

Declaration - DECLARATION OF DOUGLAS A. MIKKONEN IN SUPPORT OF OPPOSITION TO JUDGMENT CREDITOR CHASITY C. JONES'S MOTION TO AMEND JUDGMENT TO ADD HARMONIA MALIBU LLC, A CALIFORNIA LIMITED LIABILITY CO

10/20/2022: Declaration - DECLARATION OF DOUGLAS A. MIKKONEN IN SUPPORT OF OPPOSITION TO JUDGMENT CREDITOR CHASITY C. JONES'S MOTION TO AMEND JUDGMENT TO ADD HARMONIA MALIBU LLC, A CALIFORNIA LIMITED LIABILITY CO

Proof of Service (not Summons and Complaint)

10/20/2022: Proof of Service (not Summons and Complaint)

Objection - OBJECTION HARMONIA MALIBU LLC'S EVIDENTIARY OBJECTIONS TO DECLARATION OF JOSEPH CHORA IN SUPPORT OF MOTION TO AMEND JUDGMENT TO ADD HARMONIA MALIBU LLC, A CALIFORNIA LIMITED LIABILITY COMP

10/20/2022: Objection - OBJECTION HARMONIA MALIBU LLC'S EVIDENTIARY OBJECTIONS TO DECLARATION OF JOSEPH CHORA IN SUPPORT OF MOTION TO AMEND JUDGMENT TO ADD HARMONIA MALIBU LLC, A CALIFORNIA LIMITED LIABILITY COMP

Opposition - OPPOSITION HARMONIA MALIBU LLC'S OPPOSITION TO JUDGMENT CREDITOR CHASITY C. JONES'S MOTION TO AMEND JUDGMENT TO ADD HARMONIA MALIBU LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AS A JUDGM

10/20/2022: Opposition - OPPOSITION HARMONIA MALIBU LLC'S OPPOSITION TO JUDGMENT CREDITOR CHASITY C. JONES'S MOTION TO AMEND JUDGMENT TO ADD HARMONIA MALIBU LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AS A JUDGM

Order - ORDER TO SHOW CAUSE WHY AN ORDER FOR SALE OF DWELLING COMMONLY KNOWN AS 23768 MALIBU ROAD, MALIBU, CALIFORNIA 90265 SHOULD NOT ISSUE

10/14/2022: Order - ORDER TO SHOW CAUSE WHY AN ORDER FOR SALE OF DWELLING COMMONLY KNOWN AS 23768 MALIBU ROAD, MALIBU, CALIFORNIA 90265 SHOULD NOT ISSUE

Order To Show Cause Re: Order For Sale of Dwelling

10/14/2022: Order To Show Cause Re: Order For Sale of Dwelling

Application for Order of Sale of Dwelling

10/7/2022: Application for Order of Sale of Dwelling

Request for Judicial Notice

10/7/2022: Request for Judicial Notice

Memorandum of Points & Authorities

10/7/2022: Memorandum of Points & Authorities

Proof of Service (not Summons and Complaint) - PROOF OF SERVICE (NOT SUMMONS AND COMPLAINT) AMENDED

10/6/2022: Proof of Service (not Summons and Complaint) - PROOF OF SERVICE (NOT SUMMONS AND COMPLAINT) AMENDED

Proof of Service (not Summons and Complaint)

10/6/2022: Proof of Service (not Summons and Complaint)

Declaration - DECLARATION OF JOSEPH CHORA IN SUPPORT OF MOTION TO AMEND JUDGMENT TO ADD HARMONIA MALIBU LLC, A CALIFORNIA LIMITED LIABILITY COMPANY AS A JUDGMENT DEBTOR

9/29/2022: Declaration - DECLARATION OF JOSEPH CHORA IN SUPPORT OF MOTION TO AMEND JUDGMENT TO ADD HARMONIA MALIBU LLC, A CALIFORNIA LIMITED LIABILITY COMPANY AS A JUDGMENT DEBTOR

1,060 More Documents Available

 

Docket Entries

  • 05/01/2023
  • Hearing05/01/2023 at 10:00 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

    [+] Read More [-] Read Less
  • 04/18/2023
  • Hearing04/18/2023 at 09:00 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

    [+] Read More [-] Read Less
  • 02/28/2023
  • Hearing02/28/2023 at 09:00 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

    [+] Read More [-] Read Less
  • 01/27/2023
  • Hearing01/27/2023 at 1:30 PM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Hearing - Other Evidentiary Hearing (time estimate 4 hrs)

    [+] Read More [-] Read Less
  • 11/18/2022
  • Hearing11/18/2022 at 09:00 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Application for Order for Appearance and Examination

    [+] Read More [-] Read Less
  • 11/17/2022
  • Hearing11/17/2022 at 09:30 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Order for Sale of Dwelling

    [+] Read More [-] Read Less
  • 11/04/2022
  • Hearing11/04/2022 at 10:00 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Application for Order for Appearance and Examination

    [+] Read More [-] Read Less
  • 11/02/2022
  • Hearing11/02/2022 at 08:30 AM in Department 31 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Amend Judgment

    [+] Read More [-] Read Less
  • 10/26/2022
  • DocketReply (JUDGMENT CREDITORS REPLY IN SUPPORT OF MOTION TO AMEND JUDGMENT TO ADD HARMONIA MALIBU LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AS A JUDGMENT DEBTOR); Filed by Chasity Jones (Plaintiff)

    [+] Read More [-] Read Less
  • 10/26/2022
  • DocketDeclaration (SUPPLEMENTAL DECLARATION OF JOSEPH CHORA IN SUPPORT OF MOTION TO AMEND JUDGMENT TO ADD HARMONIA MALIBU LLC, A CALIFORNIA LIMITED LIABILITY COMPANY AS A JUDGMENT DEBTOR); Filed by Chasity Jones (Plaintiff)

    [+] Read More [-] Read Less
1,634 More Docket Entries
  • 03/15/2017
  • DocketCROSS-COMPLAINT FOR DAMAGES FOR: 1. CIVIL EXTORTION; AND 2. INTINTIONAL INFLICTION OF EMOTIONAL DISTRESS.

    [+] Read More [-] Read Less
  • 03/15/2017
  • DocketCross-Complaint; Filed by Alkiviades David (Defendant)

    [+] Read More [-] Read Less
  • 03/15/2017
  • DocketSummons; Filed by Alkiviades David (Defendant)

    [+] Read More [-] Read Less
  • 03/01/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

    [+] Read More [-] Read Less
  • 03/01/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

    [+] Read More [-] Read Less
  • 02/17/2017
  • DocketProof of Service (not Summons and Complaint); Filed by Chasity Jones (Plaintiff); Elizabeth Taylor (Plaintiff)

    [+] Read More [-] Read Less
  • 02/17/2017
  • DocketAMENDED PROOF OF SERVICE

    [+] Read More [-] Read Less
  • 02/02/2017
  • DocketSUMMONS

    [+] Read More [-] Read Less
  • 02/02/2017
  • DocketCOMPLAINT FOR DAMAGES 1. EMPLOYMENT DISCRIMINATION SEXUAL HARASSMENT IN VIOLATION OF FEHA; ETC.

    [+] Read More [-] Read Less
  • 02/02/2017
  • DocketComplaint; Filed by Chasity Jones (Plaintiff)

    [+] Read More [-] Read Less

Tentative Rulings

Case Number: ****9025 Hearing Date: November 9, 2022 Dept: 31

MOTION TO AMEND JUDGMENT IS GRANTED

Background

On February 2, 2017, Elizabeth Taylor and Chasity Jones (“Plaintiffs”) filed a Complaint against Alkiviades David, Hologram USA, Inc., Hologram USA Entertainment, Inc., Filmon Media Holdings, Inc., Filmon.TV Networks, Inc., Alki David Productions, Inc., and Anakando Media Group USA (collectively, “Defendants”). The Plaintiffs’ Complaint alleges eleven (11) causes of action against Defendants.

Of the eleven (11) causes of action, two causes of action are asserted by Plaintiff Elizabeth Taylor, and the nine (9) remaining causes of action are asserted by Plaintiff Chasity Jones. Plaintiff Elizabeth Taylor asserts the following causes of action against Defendants: (1) Discrimination Based Upon Disability in Violation of FEHA, and (2) Failure to Accommodate Disability in Violation of FEHA.

Plaintiff Chasity Jones asserted the following causes of action against Defendants: (1) Employment Discrimination Sexual Harassment in Violation of FEHA, (2) Wrongful Termination in Violation of FEHA, (3) Wrongful Termination in Violation of Public Policy, (4) Retaliation in Violation of FEHA, (5) Retaliation in Violation of Gov. Code 12653, (6) Sexual Battery in Violation of Civ. Code 1708.5, (7) Common Law Battery, (8) Sexual Assault, and (9) Intentional Infliction of Emotional Distress. On September 14, 2017, Plaintiffs filed a First Amended Complaint, adding a single cause of action for Gender Violence in Violation of Civ. Code 52.4, which would be asserted by Plaintiff Chasity Jones.

On June 15, 2017, Defendants filed a Motion for Separate Trials, seeking an order from the Court requiring the claims of each Plaintiff to be tried in separate proceedings. That motion was granted.

On June 12, 2019, a judgment based on the jury’s special verdict was entered in favor of Plaintiff Chasity Jones and against Defendants (the “Judgment”). The Judgment includes punitive damages entered against Defendant David, individually, for his actions against Plaintiff Jones which included gender violence, sexual battery, hostile work environment harassment, and intentional infliction of emotional distress.

Chastity Jones (“Judgment Creditor”) now moves to add Harmonia Malibu LLC as a Judgment Debtor.

Legal Standard

Pursuant to CCP section 187, a trial court has jurisdiction to modify a judgment to add additional Judgment Debtors. Section 187 grants every court the power to use all means to carry its jurisdiction into effect, even if those processes are not set out in the code. Section 187 states: “When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.” (Code. Civ. Proc., 187.)

Utilizing section 187, judgments are typically “amended to add additional Judgment Debtors on the grounds that a person or entity is the alter ego of the original Judgment Debtor. This is an equitable procedure based on the theory that the court is not amending the judgment to add a new defendant but is merely inserting the correct name of the real defendant. ‘Such a procedure is an appropriate and complete method by which to bind new individual defendants where it can be demonstrated that in their capacity as alter ego of the corporation they in fact had control of the previous litigation, and thus were virtually represented in the lawsuit.’” (See NEC Electronics Inc. v. Hurt (1989) 208 Cal.App.3d 772, 778; see also Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 508.)

Request for Judicial Notice

The Court may take judicial notice of “facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code 452(h).) The Court may take judicial notice of records of any court of record of the United States. (Id. at 452(d)(2).) However, the court may only judicially notice the existence of the record, not necessarily that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

Judgment Creditor requests Judicial Notice of the following:

1) Exhibit A: Statement of Information for Harmonia Malibu LLC, filed with the California Secretary of State on February 27, 2019.

2) Exhibit B: Articles of Organization for Harmonia Malibu LLC, filed with the California Secretary of State on February 19, 2019.

3) Exhibit C: Deed of Trust for real property commonly known as 23768 Malibu Road, Malibu, California 90265, recorded on April 26, 2019, in Los Angeles County with the County Recorder’s Office as Instrument No. 20190375317.

4) Exhibit D: Amended Judgment in Los Angeles Superior Court Case No. ****9025.

5) Exhibit E: DOCUMENT NO. 22: Amended Complaint and Jury Demand filed by the Securities and Exchange Commission against Alkiviades David and Hologram USA Networks Inc., in the U.S. District Court, Southern District of New York, Case No. 1:19-cv09013-JSR on December 12, 2019.

6) Exhibit F: DOCUMENT NO. 35: Final Judgment entered against Alkiviades David and Hologram USA Networks Inc., in the U.S. District Court, Southern District of New York, Case No. 1:19-cv-09013- JSR on March 19, 2020.

7) Exhibit G: Grant Deed for real property commonly known as 23768 Malibu Road, Malibu, California 90265, recorded on April 26, 2019, in Los Angeles County with the County Recorder’s Office as Instrument No. 20190375316.

8) Exhibit H: Statement and Designation by Foreign Corporation for Hologram USA Inc., filed with the California Secretary of State on January 3, 2020.

Judgment Creditor’s request for Judicial Notice is GRANTED pursuant to Evidence Code section 452 subdivision (d) and (h).

Evidentiary Objections

Non-party Malibu Harmonia LLC filed Evidentiary Objections to the Declaration of Joseph Chora filed in Support of this Instant Motion. The Judgment Creditor filed a reply.

Contrary to Harmonia Malibu LLC’s contention, deposition testimony is admissible evidence. (See Cal. R. of Crt., rule 3.116; see also Greenspan, supra, 191 Cal.App.4th at 523.) Accordingly, objections 1-8, 10-36, and 40-50 are OVERRULED, and objections 9, 36, 37, 39, and 51 are SUSTAINED.

Discussion

Judgment Creditor seeks to add Harmonia Malibu LLC (“Harmonia Malibu”) as a Judgment Debtor on the grounds that Judgment Debtor Alkiviades David (“David”) has intentionally tried to make himself “judgment proof” through an asset protection scheme resulting in his corporate alter ego, Harmonia Malibu, holding title to David’s home located at 23768 Malibu Road, Malibu, California 90265 (the “Malibu Residence”).

To prevail on the motion, the Judgment Creditor must show, by a preponderance of the evidence, that: “(1) the parties to be added as Judgment Debtors had control of the underlying litigation and were virtually represented in that proceeding; (2) there is such a unity of interest and ownership that the separate personalities of the entity and the owners no longer exist; and (3) an inequitable result will follow if the acts are treated as those of the entity alone.” (Relentless Air Racing, LLC v. Airborne Turbine Ltd. Partnership (2013) 222 Cal.App.4th 811, 815–816.) The decision to grant or deny the motion lies within the sound discretion of the trial court and will not be disturbed on appeal if there is a legal basis for the decision and substantial evidence supports the same. (Id., at p. 815; see People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1552.)

Timeline of Events Regarding David’s Asset Protection Scheme

Judgment Creditor asserts that after various lawsuits were filed against David, he created a scheme to protect his assets from creditors. The following is a timeline of the scheme according to Judgment Creditor.

On June 14, 2018, AD Advisers LLC, a manager-managed South Dakota LLC, was organized by its sole member, the AD Advisers LLC Ownership Trust, dated June 14, 2018 (“AD Advisers Trust”). (Chora Decl. 30–31, Ex. 2 1.1; 3, 4.) Bridgeford signs the operating agreement as trustee of its sole member, AD Advisers Trust. (Chora Decl. Ex. 2, at 64–65.) David elects “all Managers” and Bridgeford is the initial manager. (Ex. 2 3.1–3.3(a).)

On November 9, 2018, David’s realtor, Joran Wright, initiates contact with Bridgeford and a mortgage broker for a loan application for Harmonia Trust after David toured the Malibu Residence. (Chora Decl. 24–26, Ex. 5; Ex. 1 at 21:10–12.) On December 5, 2018, David contacts Bridgeford and his realtor with his intention to proceed with the purchase of the Malibu Residence. (Id. Ex. 6, at p. 83.)

Judgment Creditor attaches emails from Jordan Wright and other various individuals working for Judgment Debtor David related to seeking the loan and making the purchase of the Malibu Residence. (Chora Decl. 28, Ex. 1.) Included are emails showing David’s intent to control the Harmonia Trust. (Ex. 5, at 75; Ex. 6, at 82.) Harmonia Trust D is created on February 5, 2019, by its trustee, Bridgeford. (Chora Decl. 27, Ex. 8.) David has the authority to direct and control investments made by Harmonia Trust D. (Ex. 4.) Harmonia Trust D holds a single LLC—Harmonia Malibu. (Ex. 8; see also Ex. 9, at 130–31.)

On February 12, 2019, Harmonia Trust was created by its trustee, Bridgeford. (Ex. 10, at 138, 167.) AD Advisers LLC is appointed as Investment Adviser. (Chora Decl, Ex. 10 4.04.) “[Bridgeford] shall entrust to the investment adviser full control of real estate and its associated tangible personal property comprising trust property[.]” (Id. Ex. 10 4.05(d).)

On February 15, 2019, Bridgeford, as manager of AD Advisers LLC, issues Writings in Lieu of Initial Meetings and appoints David to the Investment Committee for Harmonia Trust. (Chora Decl. 31, Exs. 11, 12.) David acknowledges and agrees to his appointment. (Ex. 12.) Other than Bridgeford and David, no other members appear to have been appointed to the Investment Committee. (Id. Ex. 12 at p. 174.)

On February 19, 2019, Harmonia Malibu is organized by Bridgeford, as trustee of its sole member, Harmonia Trust D. (RJN Ex. B.) According to its Operating Agreement, the purpose of Harmonia Malibu is:

“(a) to acquire, own, manage and sell or otherwise dispose of property, whether real or personal, tangible or intangible, for investment purposes; (b) to consolidate management and ownership of investments; (c) to provide protection of family assets from claims of future creditors of the Members; (d) to prevent the transfer of family assets to persons with outside and possible adverse interests; (e) to promote the Members’4 knowledge of and communication about family assets.” (emphasis added.)

(Chora Decl. 31, Ex. 9 1.05 [emphasis added].) Harmonia Malibu’s Operating Agreement does not define “Family assets” but does define “Family Member” to mean “Alkiviades David; (ii) a descendant of Alkiviades David; (iii) any estate, trust, guardianship, custodianship or other fiduciary arrangement for the primary benefit of any one or more individuals described in (i) or (ii).” (Ex. 9, at 126– 27 (Definitions).)

Harmonia Malibu’s principal office is the same as AD Advisors LLC and Bridgeford’s office: 330 South Poplar Avenue, Suite 103-1, Pierre, South Dakota. (Chora Decl. Ex. 2 at p. 2; 9 at p. 112; RJN Ex. B.)

On February 27, 2019, Bridgeford filed a statement of information for Harmonia Malibu. (RJN Ex. A.) Bridgeford requests David’s authorization to “review, sign, and submit all documents related to the purchase of the Malibu [Residence].” (Chora Decl. 26, Ex. 15.)

On February 20, 2019, David is required to make a written directive instructing Bridgeford to release documents to the mortgage broker. (Chora Decl. 26, Ex. 6.) On February 21, 2019, David’s lawyers need him to sign a directive, “as Investment Adviser of the Trust, to [Bridgeford], as Trustee,” to proceed with obtaining a mortgage for the Malibu Residence. (Id. Ex. 13.) On March 13, 2019, Bridgeford acknowledges that David must sign the disclosures as he is the true purchaser of the Malibu Residence. (Id. Ex. 16.) On March 17, 2019, Bridgeford required David’s authorization to execute and deliver a contingency removal document to the seller of the Malibu Residence. (Id. Ex. 17.) On March 20, 2019, David authorizes Bridgeford and his realtor to proceed with submitting a response to the seller of the Malibu Residence. (Id. Ex. 18.) David also signs a loan application indicating that the Malibu Residence is being purchased as his primary residence and title will be held by him, via trust. (Chora Decl. 31, Ex. 19.)

On April 4, 2019, David directs his realtor to remove the loan contingency before the “bank gives us loan approval,” authorizing the purchase with cash, if necessary. (Id. 26, Ex. 20.) On April 10, 2019, David approves the terms of the mortgage loan and chooses property insurance to proceed with purchasing the Malibu Residence. (Id. Ex. 21.)

On April 11, 2019, David executes a letter addressed to the mortgage lender, AXOS Financial, Inc. dba Axos Bank (“AXOS”), stating that the closing funds for the purchase of the Malibu Residence are coming from his account. (Chora Decl. 31, Ex. 22.) On April 19, 2019, AXOS indicates it needs David’s signature, in his individual capacity, on the final loan documents. (Id. Ex. 24.)

On April 15, 2019, Bridgeford executes an Affidavit of the Manager of AD Advisers LLC, declaring that David is the company’s investment advisor with authority and control over Harmonia Trust D. (Chora Decl. 31, Ex. 4.) Trial in this lawsuit begins. (Chora Decl. 6.)

On April 17, 2019, Bridgeford, as trustee of Harmonia Malibu’s sole member, executes resolutions to ratify a mortgage loan for the Malibu Residence in David’s name and individual capacity by pledging company assets. (Chora Decl. 31, Ex. 23, at 219–20.) David, in his capacity as Investment Committee member, approves and signs the resolutions on behalf of AD Advisers LLC, as Investment Adviser for the managing (and only) member of Harmonia Malibu. (Id. Ex. 23, at 221.)

On April 23, 2019, David, in his individual capacity, is insured with Harmonia Malibu on the property insurance. (Chora Decl. 31, Ex. 25.) The same day, David in his individual capacity, executes the final loan application and other closing documents, all reflecting that title will be held by Harmonia Malibu. (Id. Ex. 26–28.)

On April 26, 2019, the purchase of the Malibu Residence is finalized. (RJN Ex. C.) The jury returns a verdict which includes punitive damages against David, individually, the same day. (Chora Decl. 7.)

On September 10, 2019, the Malibu Residence’s utilities are set up in David’s name, as an individual. (Chora Decl. 26, Ex. 29.)

On June 6, 2022, an article restates that “[David’s] home in Malibu was broken into.” (Chrora Decl. 54, 56, Ex. 33.) On July 29, 2022, the Malibu Residence is listed for sale at $28.5 million. (Id. 50, Ex. 34.)

As of September 29, 2022, the Judgment against David totals more than $19,415,466.57 and remains wholly unpaid. (Chora Decl. 11.)

A. Control of Litigation and Virtual Representation

To add Harmonia Malibu as a Judgment Debtor, the Judgment Creditor must show that Harmonia Malibu is an alter ego of Judgment Debtor David and was virtually represented or controlled by David. There is no dispute that David directed and controlled the litigation, as he was a named Defendant in this action.

“’[I]t is generally stated that in order to prevail on an alter-ego theory, the plaintiff must show that “(1) there is such a unity of interest that the separate personalities of the corporations no longer exist; and (2) inequitable results will follow if the corporate separateness is respected.’ (Citation.)” (Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 811.) The alter ego test encompasses a variety of factors including:

(1) Commingling of funds and other assets, failure to segregate funds of the separate entities, and the unauthorized diversion of corporate funds or assets to other than corporate uses.

(2) The treatment by an individual of the assets of the corporation as his own.

(3) The failure to obtain authority to issue stock or to subscribe to or issue the same.

(4) The holding out by an individual that he is personally liable for the debts of the corporation; the failure to maintain minutes or adequate corporate records, and the confusion of the records of the separate entities.

(5) The identical equitable ownership in the two entities; the identification of the equitable owners thereof with the domination and control of the two entities; identification of the directors and officers of the two entities in the responsible supervision and management; sole ownership of all the stock in a corporation by one individual or the members of a family.

(6) The use of the same office or business location; the employment of the same employees and/or attorney.

(7) The failure to adequately capitalize a corporation, the total absence of corporate assets, and undercapitalization.

(8) The use of a corporation as a mere shell, instrumentality or conduit for a single venture or the business of an individual or another corporation.

(9) The concealment and misrepresentation of the identity of the responsible ownership, management and financial interest, or concealment of personal business activities.

(10) The disregard of legal formalities and the failure to maintain arm's length relationships among related entities.

(11) The use of the corporate entity to procure labor, services or merchandise for another person or entity.

(12) The diversion of assets from a corporation by or to a stockholder or other person or entity, to the detriment of creditors, or the manipulation of assets and liabilities between entities to concentrate the assets in one and the liabilities in another.

(13) The contracting with another with intent to avoid performance by use of a corporate entity as a shield against personal liability, or the use of a corporation as a subterfuge of illegal transactions.

(14) The formation and use of a corporation to transfer to it the existing liability of another person or entity.

(See Greenspan, supra, 191 Cal.App.4th at 512–513.)

“This long list of factors is not exhaustive. The enumerated factors may be considered among others under the particular circumstances of each case. No single factor is determinative, and instead a court must examine all the circumstances to determine whether to apply the doctrine.” (Zoran Corp., supra, 185 Cal.App.4th at 812 [internal citations and quotations omitted].)

Factors 8, 9, 10, 14, and 13 weigh in favor of finding alter ego liability because Judgment Creditor presented sufficient evidence that Harmonia Malibu was created for the express purpose of isolating David’s liabilities from creditors by placing the title of the Malibu Residence in his alter ego entity, Harmonia Malibu. The Operating Agreement of Harmonia Malibu expressly states that its purpose is to protect David’s assets. (Chora Decl. 31, Ex. 9.)

Communications with various individuals support the inference that David controlled the alter-ego entities including Harmonia Malibu and AD Advisors, that Harmonia Malibu was created to hold legal title to the Malibu Residence and that David controlled and directed the purchase of the Malibu Residence. (See Chora Decl. 26, Ex. 5, 6, 13-18, 20, 21, 24, 38.) David’s agents refer to David, Harmonia Malibu, and the Harmonia Trust interchangeably as their “client.” (Ex. 1, at 29:13–16, 29:25–30:7, 34:21–35:11; Ex. 5, 38, 39.) There are no meetings of members held by Harmonia Malibu nor are there any minutes. (Chora Decl. 37.) Harmonia Malibu does not have a board of directors, a budget, or any separate interest; and appears to exist solely to hold the title of the Malibu Residence for David. (Chora Decl. 58–61, e.g., Exs. 23, 49; Ex. 5, at 77; Ex. 36, at 52:1–4.)

The chain of control is as follows:

i. The Malibu Residence is titled in Harmonia Malibu. (RJN Ex. C.)

ii. Harmonia Malibu has one member, Harmonia Trust D. (E.g., Exs. 8, 9, at 130; Ex. 23.)

iii. Harmonia Trust D takes instruction from its appointed Investment Advisor, AD Advisers LLC. (E.g., Ex. 4.)

iv. Harmonia Trust takes instruction from its appointed Investment Advisor, AD Advisers LLC. (E.g., Ex. 10 4.04–05; Ex. 12.)

v. AD Advisers LLC’s sole member is the AD Advisers Trust, but the company is controlled by its Investment Committee. (E.g., Ex. 2, at 64; Ex. 4.)

vi. David is appointed as the sole member of AD Advisers LLC’s Investment Committee. (E.g., Exs. 4, 12, 23.)

vii. David’s appointment grants him the authority to exert control over any trust AD Advisers LLC acts as an Investment Adviser for including Harmonia Trust and Harmonia Trust D. (See, e.g., Ex. 2 5.3; Exs. 4, 10 4.04–05; Ex. 12.)

Factors 5 and 6 weigh in favor of finding alter ego liability because Harmonia Malibu, AD Advisors, and Bridgeford share the same principal office in South, Dakota. (Chora Decl. Ex. 2 at p. 2; 9 at p. 112; RJN Ex. B.) At David’s direction, trusts and LLCs were set up that he would control. (Ex. 2, 4, 8–10, 12, 23.) David’s approval was sought in many of the transactions relating to the purchase and acquisition of the Malibu Residence. (Ex. 4, 12, 13, 15, 21, 23, 45; see also Ex. 6, 17, 18, 20.)

Bridgeford, as trustee of Harmonia Malibu’s sole member, executed resolutions to ratify a mortgage loan for the Malibu Residence in David’s name and individual capacity by pledging company assets. (Chora Decl. 31, Ex. 23, at 219–20.) David, in his capacity as sole member of the Investment Committee, approved and signed the resolutions on behalf of AD Advisers LLC, as Investment Adviser for the managing (and only) member of Harmonia Malibu. (Id. Ex. 23, at 221.) David exercised control over Bridgeford, who is a member, manager, and/or trustee in this asset protection scheme. (Ex. 3, 4, 8, 12, 23.)

Factor 7 weighs in favor of finding alter ego liability because Harmonia Malibu does not pay rent, a mortgage, or have any other business expenses and its only asset is the Malibu Residence. (Ex. 35, at 11:1–13:11; Ex. 36 at 111:5–11, 111:16–25.)

Factors 1, 2, and 4 weigh in favor of finding alter ego liability because AXOS Bank looked to David, as an individual, to secure the mortgage on the Malibu Residence. (Chora Decl. 31, Ex. 23, 27, 28.) David used his personal credit to obtain the mortgage. (Ex. 19, 26, 27-41.) David represented to AXOS that the money held in Harmonia Trust’s bank account was his personal money—which he pledged as collateral and used to cover closing costs. (Ex. 22, 40–41, 43.) David continues to live in the Malibu Residence with his girlfriend, but neither pays the mortgage, rent, nor utility bills. (Ex. 35, at 11:1–13:11; Ex. 36, at 111:16–25; Ex. 46, at 9:22–10:5, 11:12–13, 14:19–15:9; Ex. 47, at 11:21–12:7.)

For all these reasons, the Court finds there is more than sufficient evidence to conclude that Harmonia Malibu was and is controlled by David and was virtually represented in the litigation through its alter ego, David.

B. Unity of Interest and Ownership

“Before a corporation's obligations can be recognized as those of a particular person, the requisite unity of interest and inequitable result must be shown.” (Leek v. Cooper (2011) 194 Cal.App.4th 399, 411.) As shown above, Judgment Creditor has presented sufficient evidence that a unity of interest and ownership exists between Harmonia Malibu and Judgment Debtor David because the factors set out in the alter ego test weigh in favor of finding that Harmonia Malibu is the alter ego of David and that David controlled and directed the actions of Harmonia Malibu and controls its only asset, the Malibu Residence. (See Blizzard Energy, Inc. v. Schaefers (2021) 71 Cal.App.5th 832, 884.)

Therefore, the Court finds that the second element for amending the Judgment under Code of Civil Procedure section 187 has been amply. (See Restless Air Racing, LLC, supra, 222 Cal.App.4th at 815-816.)

C. Inequitable Result

“‘The alter ego doctrine prevents individuals or other corporations from misusing the corporate laws by the device of a sham corporate entity formed for the purpose of committing fraud or other misdeeds.’ (Citation.) As an equitable doctrine, its ‘essence ... is that justice be done.’ (Citation.)” (Curci Investments, LLC v. Baldwin (2017) 14 Cal.App.5th 214, 221.)

Judgment Creditor presents sufficient evidence that if Harmonia Malibu is treated as a separate entity, David’s scheme to defraud creditors and protect his assets will lead to an inequitable result. Harmonia Malibu was created for the express purpose of protecting the Malibu Residence from creditors. “As the separate personality of the corporation is a statutory privilege, it must be used for legitimate business purposes and must not be perverted. When it is abused, it will be disregarded and the corporation looked at as a collection or association of individuals, so that the corporation will be liable for acts of the stockholders or the stockholders liable for acts done in the name of the corporation.” (Greenspan, supra, 191 Cal.App.4th at 510–511.)

To date, David and the other Judgment Debtors have not paid any amount toward satisfaction of the Judgment. (Chora Decl. 11.) If the Judgment is not amended, David will continue to frustrate the efforts of Judgment Creditor to collect on her Judgment.

The Court finds that Judgment Creditor has shown an inequitable result will follow if the Judgment is not amended to add Harmonia Malibu as a Judgment Debtor.

Opposition

Harmonia Malibu opposes this motion on the basis that David does not own Harmonia Malibu and is not the settlor, trustee, or beneficiary of the Harmonia Trusts. Harmonia Malibu asserts it has no interest in this action.

First, adding a Judgment Debtor is not a determination of liability, but a procedure to avoid sanctioning fraud and promoting an injustice by allowing the prevailing party at a trial to collect the judgment. (See Favila v. Pasquarella (2021) 65 Cal.App.5th 934, 944.)

Second, Harmonia Malibu has failed to rebut evidence that David controlled the Harmonia Trust, Harmonia Malibu, and the purchase and acquisition of Harmonia Malibu’s only asset, the Malibu Residence. Harmonia Malibu also fails to rebut the presumption that it is not the alter ego of David because it failed to show that David did not create the trusts and had no control over the trusts’ assets. AD Advisors LLC’s Operating Agreement states that its exclusive purpose is to act as an Advisor or Protector of the Harmonia Trust. (Chora Decl. Ex. 2.) In fact, David is authorized to elect all managers for AD Advisors until his death, and thereafter by his descendants. (Id.) “[Bridgeford] shall entrust to the investment adviser full control of real estate and its associated tangible personal property comprising trust property[.]” (Chora Decl. Ex. 10 4.05(d).)

Despite Harmonia Malibu’s claims that its asset is owned by an irrevocable trust, emails regarding the purchase and acquisition of the Malibu Residence demonstrate that the entire transaction was done at David’s sole direction. Moreover, neither the existence or creation of AD Advisors, LLC, the Harmonia Trust or Harmonia Malibu predate this action. The evidence presented shows that they were created after this lawsuit was filed for the purpose of protecting David’s assets from creditors in the event of an adverse judgment.

Harmonia Malibu also admits that the balance of the purchase price for the Malibu Residence came from a loan from Axos Bank and that David applied for the loan in his individual capacity. (Mikkonen Decl. 18, 19.) Harmonia Malibu fails to provide the names of other Bridgeford trustees who could have applied for the loan, or the name of the prior trustee who provided the funds for the Harmonia Trusts to make the down payment for the purchase of the Malibu Residence. (Id). Harmonia Malibu also fails to explain why it holds no other assets for the benefit of the purported true beneficiaries of the trust, David’s descendants.

Despite assertions that the Malibu Residence serves the Harmonia Trusts’ purpose of finding high-end real estate for the benefit of beneficiaries, Harmonia Malibu admits that David and his girlfriend reside in the residence and does not rebut the presumption that David has used the residence as his primary home rather than treating the Malibu Residence as an investment asset. (Mikkonen Decl. 21; Chora Decl. Ex. 46, 50.)

Lastly, Judgment Creditor also presents evidence that David has received over $2.5 million in distributions. from the Bridgeford Trust Company acting as trustee for the Harmonia Trusts. (Chora Supp. Decl. 5-9, Ex. B.)

Alternative Remedies

Harmonia Malibu asserts that alternatives exist that preclude veil piercing such as a charging order against the Judgment Debtor’s interest under Code of Civil Procedure section 708.310. The argument is unavailing because David has failed to pay any portion of the Judgment, denies ownership of Harmonia Malibu, and Harmonia Malibu has failed to explain how a charging order will ensure that the Judgment is satisfied. (See Blizzard Energy, Inc., supra, 71 Cal.App.5th at 848 [finding that reverse veil piercing pursuant to CCP section 187 is permissible in the context of a limited liability company because, unlike a corporation, a limited liability company does not issue shares on which a creditor may levy, and creditors do not have sufficient alternative remedies at law.].)

The Court finds Judgment Creditor has presented sufficient evidence that Harmonia Malibu and the trusts that purport to control it, failed to observe corporate formalities and allowed David to use Harmonia Malibu to purchase and acquire the Malibu Residence for his own benefit such that it would not be unjust to add Harmonia Malibu as a Judgment Debtor because it is the alter ego of David.

For the reasons stated, the Court finds that Judgment Creditor has satisfied all the requirements under Restless Air Racing, LLC, supra, 222 Cal.App.4th at 815-816 and the therefore the Motion is GRANTED.

Conclusion

Judgment Creditor’s Motion to Amend Judgment to add Harmonia Malibu LLC as a Judgment Debtor is GRANTED.

Moving Party to give notice.



Case Number: ****9025 Hearing Date: March 30, 2022 Dept: 31

Motion to Expand February 26, 2021 Order Directing Turnover of Documents is GRANTED

Background

On February 26, 2021, this Court issues its Order Directing Turnover of Documents, directed at Judgment Debtor Alkiviades David (“Judgment Debtor”), to turn over his personal tax records from all foreign and domestic jurisdiction as well as a multitude of other financial documents evidencing his personal and corporate finances. He has refused or failed to comply with the Court’s Order. Now, Judgment Creditor Chasity Jones (“Judgment Creditor”) seeks to expand the scope of the Court’s Order to (1) update and expand the dates in the order, (2) to include third parties reasonably believed to be in possession (including constructive possession) of the records and documents enumerated in the Order, and (3) to clarify and expand the documents subject to the Order.

Legal Standard

“Detailed statutory provisions govern the manner and extent to which civil judgments are enforceable . . . Examination proceedings (also called proceedings in aid of execution or supplementary proceedings) are one of several special procedures designed to aid judgment creditors. They permit the judgment creditor to examine the judgment debtor, or third persons who have property of or are indebted to the judgment debtor, in order to discover property and apply it toward the satisfaction of the money judgment.” (Imperial Bank v. Pim Electric (1995) 33 Cal.App.4th 540, 546-547.) A judgment creditor can move for an order to require the judgment debtor to appear at such an examination to furnish information that aids in the enforcement of the money judgment. (Code Civ. Proc., 708.110(a).)

“In a Code of Civil Procedure section 708.110 [ ] hearing, the examination is intended to be summary and factual, according to the widest scope for inquiry concerning property and business affairs of the debtor; the object of the proceedings being to compel the judgment debtor to give information concerning his property. (8 Witkin, Cal.Proc.3d Enforcement of Judgment, 274, p. 238, citing Coleman v. Galvin (1947) 78 Cal.App.2d 313, [ ].) Public policy does not support a judgment debtor's attempt to be less than candid about his assets and ability to pay the judgment especially when a definite legislative policy has established a procedure for aiding judgment creditors collection of their judgments.” (Young v. Keele (1987) 188 Cal.App.3d 1090, 1093.) “. . . [T]he purpose of a judgment debtor examination is to leave no stone unturned in the search for assets which might be used to satisfy the judgment.” (Troy v. Superior Court (1986) 186 Cal.App.3d 1006, 1014.) “There is no policy favoring the concealment of the judgment debtor’s assets from the judgment creditor.” (Yolanda’s, Inc. v. Kahl & Goveia Commercial Real Estate (2017) 11 Cal.App.5th 509, 515.)

California courts have inherent authority to modify and compel compliance with their orders. (Code Civ. Proc., 128(a)(4), (8).) Additionally, “[w]hen jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.” (Code Civ. Proc., 187.) This inherent authority of the court was codified to prevent the abuse of lawfully issued orders. (Blueberry Props., LLC v. Chow (2014) 230 Cal.App.4th 1017, 1021 [holding Section 128 authorizes the trial court to appoint elisor where failure to comply with valid judgment is found].)

Discussion

Judgment Creditor seeks expansion of this Court’s previous order to Judgment Debtor to turn over personal tax records from all foreign and domestic jurisdiction as well as a multitude of other financial documents evidencing his personal and corporate finances. Judgment Creditor seeks this expansion because of Judgment Debtor’s noncompliance with this Court’s Order.

Modification of Court Order

Recognizing that Judgment Debtor has repeatedly and willfully refused to comply with this Court’s Order, this Court will use its inherent authority to modify and compel compliance. (Code Civ. Proc., 128(a)(4), (8); 187.) Judgment Debtor’s behavior has gone against this Court’s Order and applicable law and policy.

The Court recognizes that multiple attempts have been made to conduct a judgment debtor examination in compliance with this Court’s Order and applicable law. Judgment Debtor has acted in a recalcitrant and noncompliant manner at these hearings. (Chora Decl. 7–9 & Exh. B, at 40:2–6, 40:10–41:8, 41:13–17, 41:22– 42:25.) This Court appointed a referee to oversee the examination. At the examination of February 9, 2022, Judgment Debtor accused the referee of being a “corrupt judge” and participant in what Judgment debtor described as “trafficking him” through the California court system. (Affidavit of Hon. Gerald Rosenberg (Ret.), filed in support of Facts Constituting Contempt by Judgement Debtor, 8.) Judgment Debtor “continued to yell, slam his hands on the table, and caused one of the transparent plastic dividers set up for COVID protection to be knocked over. [Judgment Debtor] refused to listen whenever [the referee] attempted to speak with him . . . [Judgment Debtor] began filming [the referee] in the examination room without [the referee’s] consent.” (Rosenberg Affidavit, 8.) Judgment Debtor abruptly left the premises without being excused by the referee. (Rosenberg Affidavit, 10.) At another attempt to conduct the examination on a later date, Judgment Debtor again failed to conduct himself in a civil manner, responded to questions in a manner abusive to Judgment Creditor’s counsel and did not give any responsive information. (Rosenberg Affidavit, 16-17.)

In addition to his disruptive behavior at the examinations, Judgment Debtor has refused to comply with subpoenas compelling him to produce documents prior to his first judgment debtor examination in 2019. (Chora Decl. 9, 13 & Exh. B at 9:3–19.) Finally, Judgment Debtor’s tax preparers and accountants refuse to comply unless they are provided with a court order compelling production of the documents that Judgment Debtor fails to produce. (Chora Decl. 17–21 & Exh. G [Correspondence from Citrin Cooperman].)

Judgment Debtor’s actions have gone against this Court’s Order and applicable law and policy such as that stated in Troy, supra, 186 Cal.App.3d at 1014 [reasoning “[t]he purpose of a judgment debtor examination is to leave no stone unturned in the search for assets which might be used to satisfy the judgment.”] and (Yolanda’s, Inc., supra, 11 Cal.App.5th at 515 [reasoning “[t]here is no policy favoring the concealment of the judgment debtor’s assets from the judgment creditor.”].

A judgment creditor’s attempt to obtain information to enforce a valid judgment should not be impeded by behavior such as the kind in which Judgment Debtor has engaged. Judgment Creditor should be able to investigate and acquire this information, even from Judgment Debtor’s domestic tax preparers and accountants. (See Yolanda’s, Inc., supra, 11 Cal.App.5th at 514 [holding judgment creditor may seek documents and testimony from anyone with information leading to enforcement of judgment]; Shrewsbury Mgmt., Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1225-26 [reasoning the “wide scope of inquiry into the judgment debtor’s finances” applied to third parties “must be similarly broad”].)

For the reasons stat3ed, Judgment Debtor’s production of his tax returns as requested by Judgment Creditor must be made part of the Court’s turnover orders. The tax privilege “will not be upheld in three situations: when (1) the circumstances indicate an intentional waiver of the privilege; (2) the gravamen of the lawsuit is inconsistent with the privilege; or (3) a public policy greater than that of confidentiality of tax returns is involved.” (Li v. Yan (2016) 247 Cal.App.4th 56, 67.) Judgment Debtor has waived this privilege by voluntarily producing his personal tax returns for 2017 and 2018. Further this Court previously ordered Judgment Debtor to produce his 2018 and 2019 tax records.

No Opposition Filed by Judgment Debtor

Judgment Debtor has not filed an opposition to Judgment Creditor’s instant Motion. California Rules of Court, Rule 8.54(c) provides that “[a] failure to oppose a motion may be deemed a consent to the granting of the motion.”

Conclusion

Judgment Creditor’s Motion to Expand February 26, 2021 Order Directing Turnover of Documents is GRANTED.

Judgment Creditor to give notice.



b'

Case Number: ****9025 Hearing Date: August 18, 2021 Dept: 31

DEFENDANTS\' MOTION FOR SANCTIONS IS DENIED.Background

On February 2, 2017, Elizabeth Taylor and Chasity Jones (“Plaintiffs”) filed a Complaint against Alkiviades David, Hologram USA, Inc., Hologram USA Entertainment, Inc., Filmon Media Holdings, Inc., Filmon.TV Networks, Inc., Alki David Productions, Inc., and Anakando Media Group USA (collectively, “Defendants”). Plaintiffs’ Complaint alleges eleven (11) causes of action against Defendants. Of the eleven (11) causes of action, two causes of action are asserted by Plaintiff Elizabeth Taylor, and the nine (9) remaining causes of action are asserted by Plaintiff Chasity Jones.

Plaintiff Elizabeth Taylor asserts the following causes of action against Defendants: (1) Discrimination Based Upon Disability in Violation of FEHA, and (2) Failure to Accommodate Disability in Violation of FEHA. Plaintiff Chasity Jones asserts the following causes of action against Defendants: (1) Employment Discrimination Sexual Harassment in Violation of FEHA, (2) Wrongful Termination in Violation of FEHA, (3) Wrongful Termination in Violation of Public Policy, (4) Retaliation in Violation of FEHA, (5) Retaliation in Violation of Gov. Code ; 12653, (6) Sexual Battery in Violation of Civ. Code ; 1708.5, (7) Common Law Battery, (8) Sexual Assault, and (9) Intentional Infliction of Emotional Distress.

On September 14, 2017, Plaintiffs filed a First Amended Complaint, adding a single cause of action for Gender Violence in Violation of Civ. Code ; 52.4, which would be asserted by Plaintiff Chasity Jones.

On June 15, 2017, Defendants filed a Motion for Separate Trials, seeking an order from the Court requiring the claims of each Plaintiff to be tried in separate proceedings.

On June 27, 2018, Defendant Alkivades David filed the operative First Amended Cross-Complaint against Plaintiffs Elizabeth Taylor and Chasity Jones. The First Amended Cross-Complaint asserts two (2) causes of action for (1) Sexual Battery, and (2) Battery.

On July 11, 2017, the Court granted Defendants’ Motion for Separate Trials. The Court ordered that the claims of each Plaintiff be tried in separate proceedings. Plaintiff Chasity Jones’s claims were to be tried before Judge Rafael A. Ongkeko, while Plaintiff Elizabeth Taylor’s claims were to be tried, thereafter, before Judge Christopher K. Lui.

On April 25, 2019, a jury returned a verdict in favor of Plaintiff Chasity Jones.

On September 3, 2019, the trial regarding Plaintiff Elizabeth Taylor’s claims ended in a hung jury.

On February 21, 2020, Plaintiff Elizabeth Taylor filed a Supplemental Complaint for Damages, based upon Defendants’ alleged retaliatory and abusive conduct during litigation.

On April 6, 2020, Defendants filed a Special Motion to Strike, seeking to strike Plaintiff Elizabeth Taylor’s Supplemental Complaint.

On September 14, 2020, the Court denied Defendant’s Special Motion to Strike.

On September 25, 2020, Defendants appealed the Court’s denial of their Special Motion to Strike. This appeal is now pending.

On April 29, 2021, Defendants filed a Motion for Sanctions, seeking sanctions against Plaintiff Chasity Jones and her counsel based upon Plaintiff’s conduct during trial.

On May 28, 2021, the Court ordered supplemental briefing on the issue of whether Defendant’s appeal of the Court’s Order Denying Defendants’ Special Motion to Strike stays the Court’s determination of Defendants’ Motion for Sanctions.

On August 5, 2021, Plaintiff Chasity Jones filed an Opposition to Defendants’ Motion for Sanctions. On August 6, 2021, Plaintiff filed supplemental briefing on the issue regarding the stay.

On August 11, 2021, Defendants filed a Reply in support of their Motion for Sanctions. On August 6, 2021, Defendants filed supplemental briefing on the issue regarding the stay.

Legal Standard

“Every court shall have the power to . . . control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceedings before it, in every matter pertaining thereto.” (Code Civ. Proc., ; 128, subd. (a)(5).) The Court may impose “an appropriate sanction” upon any party, the party’s attorney, or both, for an action or tactic which serves as the basis for a Court Order pursuant to Code of Civil Procedure ; 128, subdivision (a). (Id., ; 128, subdivision (f).)

Request for Judicial Notice

A. Defendants’ Request for Judicial Notice

Defendants request judicial notice of the following documents: (1) “Amended Judgment and Probation/Commitment” Order, filed in the United States District Court, Central District of California, Docket No. CR 02-1229 ER, entered on March 19, 2004; and (2) “Petition on Probation and Supervised Release” filed in the United States District Court, Central District of California, Docket No. CR-02-1229 ER, entered on July 31, 2006.

The Court hereby GRANTS Defendants’ Request for Judicial Notice pursuant to Evidence Code ; 452, subdivision (d). (Evid. Code, ; 452, subd. (d) [“[j]udicial notice may be taken of . . . records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States”].)

B. Plaintiff’s Request for Judicial Notice

Plaintiff Chasity Jones requests judicial notice of the following documents: (1) Minute Order: Jury Trial (Phase 2 Taylor’s Case), entered on August 27, 2019, in the current action; and (2) Request for Dismissal, dated December 30, 2020, filed in Los Angeles Superior Court, Case No. BC677954.

The Court hereby GRANTS Plaintiff’s Request for Judicial Notice pursuant to Evidence Code ; 452, subdivision (d). (Evid. Code, ; 452, subd. (d) [“[j]udicial notice may be taken of . . . records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States”].)

Discussion

Defendants seek an Order from this Court requiring Plaintiff Chasity Jones’s payment of Defendants’ counsel’s attorney’s fees and costs as a form of monetary sanction on the basis of Plaintiff’s conduct at trial. Defendants argue monetary sanctions in the amount of Defendants’ attorney’s fees and costs are warranted because: (1) Plaintiff Jones’s counsel mistakenly informed the Court that Plaintiff’s First Amended Complaint contained a cause of action for gender violence, for which Defendant was found liable at trial, however this cause of action was in fact stricken from the Complaint, and (2) Plaintiff Jones submitted a declaration which misrepresented her compliance with the conditions of her probation. In opposition, Plaintiff argues that Defendants’ Motion for Sanctions must be denied as Defendants have failed to cite any authority which permits the Court to award attorney’s fees as sanctions. The Court agrees.

As the present Motion involves a preliminary issue regarding whether the Court’s consideration of the Motion is stayed pursuant to Defendants’ pending appeal, the Court will first consider this preliminary issue and, thereafter, discuss the merits of the Motion.

A. Stay

On May 28, 2021, the Court ordered supplemental briefing on the issue of whether Defendants’ appeal of the Court’s Order Denying Defendants’ Special Motion to Strike (“Anti-SLAPP Motion”) stays the Court’s determination of Defendants’ Motion for Sanctions. Following a review of the supplemental briefing filed by both parties, the Court finds that the Court’s determination of Defendants’ Motion for Sanctions is not stayed pursuant to Defendants’ appeal.

Code of Civil Procedure ; 916 states, “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., ; 916, subd. (a).) An appeal from an order denying an anti-SLAPP motion divests the trial court of jurisdiction to conduct any “further trial court proceedings on the merits upon the causes of action affected by the motion.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 186.) Further, when determining whether a proceeding is embraced in or affected by the appeal, the trial court proceeding must directly or indirectly seek to enforce, vacate or modify the appealed judgment or order or the proceeding must substantially interfere with the appellate court’s ability to conduct the appeal. (Id. at 189-190.)

Here, the Court finds that Defendants’ appeal of the Court’s Order Denying Defendants’ Anti-SLAPP Motion does not stay the Court’s consideration of the present Motion for Sanctions. As noted previously, this case has effectively been divided into two, as the Court ordered Plaintiff Jones’s claims to be litigated in one trial, and Plaintiff Taylor’s claims to be litigated in a separate trial. The subject Anti-SLAPP Motion was filed by Defendants in the litigation encompassing Plaintiff Taylor’s claims only. Through the Anti-SLAPP Motion, Defendants sought to strike Plaintiff Taylor’s Supplemental Complaint, which was filed following the trial on Plaintiff Taylor’s claims. Conversely, the present Motion for Sanctions was filed by Defendants in the litigation encompassing Plaintiff Jones’s claims only. Defendants’ Motion for Sanctions seeks to sanction Plaintiff Jones and her counsel only and does not seek to sanction Plaintiff Taylor. Accordingly, the Court’s determination on Defendants’ Motion for Sanctions against Plaintiff Jones will not modify, vacate, or enforce the Court’s Order on Defendants’ Anti-SLAPP Motion as each Motion involves two different trials, which occurred on different days, before different judicial officers, before different juries, and involved the litigation of different claims. Further, the Court’s decision on Defendants’ Motion for Sanctions will not substantially interfere with the Court of Appeal’s ability to conduct the appeal, especially where, as discussed further below, the Motion for Sanctions should be denied for lack of any authority supporting Defendants’ requested relief.

Accordingly, the Court finds that Defendants’ appeal of the Court’s Order Denying Defendants’ Anti-SLAPP Motion does not stay the Court’s consideration of Defendants’ Motion for Sanctions.

B. Defendants’ Motion for Sanctions Against Plaintiff Chasity Jones and Counsel

Defendants seek an Order requiring the payment of Defendants’ attorney’s fees by Plaintiff Jones as a form of monetary sanction based upon the conduct of Plaintiff at trial. The Court refuses to issue such an Order because Defendants have failed to cite any statutory authority in support of their requested relief.

"Trial courts may not award attorney fees as a sanction for misconduct unless they do so pursuant to statutory authority or an agreement of the parties. (Bauguess v. Paine (1978) 22 Cal.3d 626, 634-639.) Although trial courts possess inherent powers to supervise judicial proceedings, there are limits on these powers to avoid the “serious due process problems” that would arise if trial courts had unfettered authority to award fees as sanctions. (Id. at 637-638.) As a result, a trial court may not impose sanctions to punish misconduct unless the Legislature, or the parties, authorized the court to impose fees as a sanction. (Ibid.)

Here, Defendants have failed to identify an express statute which would permit the award of attorney’s fees as sanctions. Defendants have merely cited to case law which states that the trial court has the inherent power to regulate the proceedings before it. (Mot., at pp. 4-5.) Defendants have identified no expressed authority which would permit an award of attorney’s fees as sanctions under the facts of this case. Accordingly, Defendants’ Motion for Sanctions must be denied.

Conclusion

Defendants’ Motion for Sanctions is DENIED.

Moving party to provide notice.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking distancing protocols will be observed at the Courthouse and in the courtrooms.

'


b'

Case Number: ****9025 Hearing Date: August 16, 2021 Dept: 31

DEFENDANTS\' MOTION FOR SANCTIONS IS DENIED.Background

On February 2, 2017, Elizabeth Taylor and Chasity Jones (“Plaintiffs”) filed a Complaint against Alkiviades David, Hologram USA, Inc., Hologram USA Entertainment, Inc., Filmon Media Holdings, Inc., Filmon.TV Networks, Inc., Alki David Productions, Inc., and Anakando Media Group USA (collectively, “Defendants”). Plaintiffs’ Complaint alleges eleven (11) causes of action against Defendants. Of the eleven (11) causes of action, two causes of action are asserted by Plaintiff Elizabeth Taylor, and the nine (9) remaining causes of action are asserted by Plaintiff Chasity Jones.

Plaintiff Elizabeth Taylor asserts the following causes of action against Defendants: (1) Discrimination Based Upon Disability in Violation of FEHA, and (2) Failure to Accommodate Disability in Violation of FEHA. Plaintiff Chasity Jones asserts the following causes of action against Defendants: (1) Employment Discrimination Sexual Harassment in Violation of FEHA, (2) Wrongful Termination in Violation of FEHA, (3) Wrongful Termination in Violation of Public Policy, (4) Retaliation in Violation of FEHA, (5) Retaliation in Violation of Gov. Code ; 12653, (6) Sexual Battery in Violation of Civ. Code ; 1708.5, (7) Common Law Battery, (8) Sexual Assault, and (9) Intentional Infliction of Emotional Distress.

On September 14, 2017, Plaintiffs filed a First Amended Complaint, adding a single cause of action for Gender Violence in Violation of Civ. Code ; 52.4, which would be asserted by Plaintiff Chasity Jones.

On June 15, 2017, Defendants filed a Motion for Separate Trials, seeking an order from the Court requiring the claims of each Plaintiff to be tried in separate proceedings.

On June 27, 2018, Defendant Alkivades David filed the operative First Amended Cross-Complaint against Plaintiffs Elizabeth Taylor and Chasity Jones. The First Amended Cross-Complaint asserts two (2) causes of action for (1) Sexual Battery, and (2) Battery.

On July 11, 2017, the Court granted Defendants’ Motion for Separate Trials. The Court ordered that the claims of each Plaintiff be tried in separate proceedings. Plaintiff Chasity Jones’s claims were to be tried before Judge Rafael A. Ongkeko, while Plaintiff Elizabeth Taylor’s claims were to be tried, thereafter, before Judge Christopher K. Lui.

On April 25, 2019, a jury returned a verdict in favor of Plaintiff Chasity Jones.

On September 3, 2019, the trial regarding Plaintiff Elizabeth Taylor’s claims ended in a hung jury.

On February 21, 2020, Plaintiff Elizabeth Taylor filed a Supplemental Complaint for Damages, based upon Defendants’ alleged retaliatory and abusive conduct during litigation.

On April 6, 2020, Defendants filed a Special Motion to Strike, seeking to strike Plaintiff Elizabeth Taylor’s Supplemental Complaint.

On September 14, 2020, the Court denied Defendant’s Special Motion to Strike.

On September 25, 2020, Defendants appealed the Court’s denial of their Special Motion to Strike. This appeal is now pending.

On April 29, 2021, Defendants filed a Motion for Sanctions, seeking sanctions against Plaintiff Chasity Jones and her counsel based upon Plaintiff’s conduct during trial.

On May 28, 2021, the Court ordered supplemental briefing on the issue of whether Defendant’s appeal of the Court’s Order Denying Defendants’ Special Motion to Strike stays the Court’s determination of Defendants’ Motion for Sanctions.

On August 5, 2021, Plaintiff Chasity Jones filed an Opposition to Defendants’ Motion for Sanctions. On August 6, 2021, Plaintiff filed supplemental briefing on the issue regarding the stay.

On August 11, 2021, Defendants filed a Reply in support of their Motion for Sanctions. On August 6, 2021, Defendants filed supplemental briefing on the issue regarding the stay.

Legal Standard

“Every court shall have the power to . . . control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceedings before it, in every matter pertaining thereto.” (Code Civ. Proc., ; 128, subd. (a)(5).) The Court may impose “an appropriate sanction” upon any party, the party’s attorney, or both, for an action or tactic which serves as the basis for a Court Order pursuant to Code of Civil Procedure ; 128, subdivision (a). (Id., ; 128, subdivision (f).)

Request for Judicial Notice

A. Defendants’ Request for Judicial Notice

Defendants request judicial notice of the following documents: (1) “Amended Judgment and Probation/Commitment” Order, filed in the United States District Court, Central District of California, Docket No. CR 02-1229 ER, entered on March 19, 2004; and (2) “Petition on Probation and Supervised Release” filed in the United States District Court, Central District of California, Docket No. CR-02-1229 ER, entered on July 31, 2006.

The Court hereby GRANTS Defendants’ Request for Judicial Notice pursuant to Evidence Code ; 452, subdivision (d). (Evid. Code, ; 452, subd. (d) [“[j]udicial notice may be taken of . . . records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States”].)

B. Plaintiff’s Request for Judicial Notice

Plaintiff Chasity Jones requests judicial notice of the following documents: (1) Minute Order: Jury Trial (Phase 2 Taylor’s Case), entered on August 27, 2019, in the current action; and (2) Request for Dismissal, dated December 30, 2020, filed in Los Angeles Superior Court, Case No. BC677954.

The Court hereby GRANTS Plaintiff’s Request for Judicial Notice pursuant to Evidence Code ; 452, subdivision (d). (Evid. Code, ; 452, subd. (d) [“[j]udicial notice may be taken of . . . records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States”].)

Discussion

Defendants seek an Order from this Court requiring Plaintiff Chasity Jones’s payment of Defendants’ counsel’s attorney’s fees and costs as a form of monetary sanction on the basis of Plaintiff’s conduct at trial. Defendants argue monetary sanctions in the amount of Defendants’ attorney’s fees and costs are warranted because: (1) Plaintiff Jones’s counsel mistakenly informed the Court that Plaintiff’s First Amended Complaint contained a cause of action for gender violence, for which Defendant was found liable at trial, however this cause of action was in fact stricken from the Complaint, and (2) Plaintiff Jones submitted a declaration which misrepresented her compliance with the conditions of her probation. In opposition, Plaintiff argues that Defendants’ Motion for Sanctions must be denied as Defendants have failed to cite any authority which permits the Court to award attorney’s fees as sanctions. The Court agrees.

As the present Motion involves a preliminary issue regarding whether the Court’s consideration of the Motion is stayed pursuant to Defendants’ pending appeal, the Court will first consider this preliminary issue and, thereafter, discuss the merits of the Motion.

A. Stay

On May 28, 2021, the Court ordered supplemental briefing on the issue of whether Defendants’ appeal of the Court’s Order Denying Defendants’ Special Motion to Strike (“Anti-SLAPP Motion”) stays the Court’s determination of Defendants’ Motion for Sanctions. Following a review of the supplemental briefing filed by both parties, the Court finds that the Court’s determination of Defendants’ Motion for Sanctions is not stayed pursuant to Defendants’ appeal.

Code of Civil Procedure ; 916 states, “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., ; 916, subd. (a).) An appeal from an order denying an anti-SLAPP motion divests the trial court of jurisdiction to conduct any “further trial court proceedings on the merits upon the causes of action affected by the motion.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 186.) Further, when determining whether a proceeding is embraced in or affected by the appeal, the trial court proceeding must directly or indirectly seek to enforce, vacate or modify the appealed judgment or order or the proceeding must substantially interfere with the appellate court’s ability to conduct the appeal. (Id. at 189-190.)

Here, the Court finds that Defendants’ appeal of the Court’s Order Denying Defendants’ Anti-SLAPP Motion does not stay the Court’s consideration of the present Motion for Sanctions. As noted previously, this case has effectively been divided into two, as the Court ordered Plaintiff Jones’s claims to be litigated in one trial, and Plaintiff Taylor’s claims to be litigated in a separate trial. The subject Anti-SLAPP Motion was filed by Defendants in the litigation encompassing Plaintiff Taylor’s claims only. Through the Anti-SLAPP Motion, Defendants sought to strike Plaintiff Taylor’s Supplemental Complaint, which was filed following the trial on Plaintiff Taylor’s claims. Conversely, the present Motion for Sanctions was filed by Defendants in the litigation encompassing Plaintiff Jones’s claims only. Defendants’ Motion for Sanctions seeks to sanction Plaintiff Jones and her counsel only and does not seek to sanction Plaintiff Taylor. Accordingly, the Court’s determination on Defendants’ Motion for Sanctions against Plaintiff Jones will not modify, vacate, or enforce the Court’s Order on Defendants’ Anti-SLAPP Motion as each Motion involves two different trials, which occurred on different days, before different judicial officers, before different juries, and involved the litigation of different claims. Further, the Court’s decision on Defendants’ Motion for Sanctions will not substantially interfere with the Court of Appeal’s ability to conduct the appeal, especially where, as discussed further below, the Motion for Sanctions should be denied for lack of any authority supporting Defendants’ requested relief.

Accordingly, the Court finds that Defendants’ appeal of the Court’s Order Denying Defendants’ Anti-SLAPP Motion does not stay the Court’s consideration of Defendants’ Motion for Sanctions.

B. Defendants’ Motion for Sanctions Against Plaintiff Chasity Jones and Counsel

Defendants seek an Order requiring the payment of Defendants’ attorney’s fees by Plaintiff Jones as a form of monetary sanction based upon the conduct of Plaintiff at trial. The Court refuses to issue such an Order because Defendants have failed to cite any statutory authority in support of their requested relief.

"Trial courts may not award attorney fees as a sanction for misconduct unless they do so pursuant to statutory authority or an agreement of the parties. (Bauguess v. Paine (1978) 22 Cal.3d 626, 634-639.) Although trial courts possess inherent powers to supervise judicial proceedings, there are limits on these powers to avoid the “serious due process problems” that would arise if trial courts had unfettered authority to award fees as sanctions. (Id. at 637-638.) As a result, a trial court may not impose sanctions to punish misconduct unless the Legislature, or the parties, authorized the court to impose fees as a sanction. (Ibid.)

Here, Defendants have failed to identify an express statute which would permit the award of attorney’s fees as sanctions. Defendants have merely cited to case law which states that the trial court has the inherent power to regulate the proceedings before it. (Mot., at pp. 4-5.) Defendants have identified no expressed authority which would permit an award of attorney’s fees as sanctions under the facts of this case. Accordingly, Defendants’ Motion for Sanctions must be denied.

Conclusion

Defendants’ Motion for Sanctions is DENIED.

Moving party to provide

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking distancing protocols will be observed at the Courthouse and in the courtrooms.

'


Case Number: ****9025    Hearing Date: June 2, 2021    Dept: 31

MOTIONS TO BE RELIEVED AS COUNSEL BY VENABLE LLP ARE GRANTED.Ellyn S. Garofalo of Venable, LLP, attorney of record for Judgment Debtors, FilmOn.TV, Inc. and Hologram USA Entertainment, Inc. (“Judgment Debtors”), seeks to be relieved as counsel for Judgment Debtors asserting that counsel has become aware that Judgment Debtors have been forfeited by the Franchise Tax Board precluding its “exercise of the corporate powers, rights and privileges.” (Cal. Rev. & Tax Code ; 23301.) Counsel contends that she is thus unable to continue representation of Judgment Debtors.

Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.) The Court notes that the next substantive motion in this matter is scheduled for August 18, 2021. Accordingly, no prejudice will result in granting this motion.

The motions to be relieved are GRANTED. Counsel is not relieved as attorney of record until a proof of service is filed with this Court evidencing that the Order granting the motion to be relieved was served on the clients, FilmOn.TV, Inc. and Hologram USA Entertainment, Inc. and all other parties.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All social distancing protocols will be observed at the Courthouse and in the courtrooms.



Case Number: ****9025    Hearing Date: May 28, 2021    Dept: 31

MOTION TO BE RELIEVED BY COUNSEL FOR HOLOGRAM IS GRANTED.            Ellyn S. Garofalo of Venable, LLP, attorney of record for Judgment Debtor, Hologram USA, Inc. (“Judgment Debtor”), seeks to be relieved as counsel for Judgment Debtor asserting that withdrawal is required as Veneable is now adverse to Judgment Debtor and there has been a complete and irreparable breakdown in the attorney-client relationship. Counsel contends that Judgment Debtor will not be prejudiced by the withdrawal as it has apparently retained new counsel that has filed pleadings on its behalf since at least April 1, 2021.

Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.) The Court notes that the next substantive motion in this matter is scheduled for August 18, 2021. Moreover, as pointed out by counsel, it appears Judgment Debtor may have already retained new counsel. Accordingly, no prejudice will result in granting this motion.

Hologram USA, Inc. may not appear without counsel. (CLD Const., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145 (“under a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record.”).) The Court sets an OSC Re: Hologram USA, Inc.’s retention of counsel for August 18, 2021 at 8:30 am.

The motion to be relieved is GRANTED. Counsel is not relieved as attorney of record until a proof of service is filed with this Court evidencing that the Order granting the motion to be relieved was served on the client, Hologram USA, Inc. Counsel must give notice of the scheduled OSC hearing on August 18, 2021 at 8:30 am. to the client and all parties.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All social distancing protocols will be observed at the Courthouse and in the courtrooms.



Case Number: ****9025    Hearing Date: January 12, 2021    Dept: 73

1/12/2021

Dept. 73

Rafael Ongkeko, Judge presiding

CHASITY JONES v. ALKIVIADES DAVID, et al.  (****9025; 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: ****9025    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.  (****9025)

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: ****9025    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. (****9025)

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: ****9025    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. (****9025)

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.



related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where ANAKANDO MEDIA GROUP USA is a litigant

Latest cases where FILMON MEDIA HOLDINGS INC is a litigant