On 06/05/2020 ERINA GILERMAN filed a Property - Other Real Property lawsuit against REDWOOD MORTGAGE INVESTORS VIII, A CALIFORNIA LIMITED PARTNERSHIP. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SAMANTHA JESSNER, MICHAEL L. STERN and DAVID J. COWAN. The case status is Disposed - Dismissed.
Disposed - Dismissed
MICHAEL L. STERN
DAVID J. COWAN
PLM LOAN MANAGEMENT SERVICES INC.
REDWOOD MORTGAGE INVESTORS VIII A CALIFORNIA LIMITED PARTNERSHIP
FIRST AMERICAN TITLE INSURANCE COMPANY
PACIFIC COAST TITLE COMPANY
SANDS THOMAS D
REED ZSHONETTE LORDEN
LEVINSON BENJAMIN RAFAEL
5/7/2021: Exhibit List - EXHIBIT LIST MINUTES AND THE RECORD IN SUPPORT OF MOTION FOR A NEW TRIAL
3/15/2021: Case Management Statement
2/1/2021: Request for Entry of Default / Judgment - REQUEST FOR ENTRY OF DEFAULT / JUDGMENT \DEFAULT REJECTED
2/10/2021: Notice of Rejection Default/Clerk's Judgment
1/15/2021: Exhibit List
12/29/2020: Challenge To Judicial Officer - Peremptory (170.6)
12/28/2020: Request for Judicial Notice
12/28/2020: Declaration - DECLARATION DECLARATION OF DEMURRING OR MOVING PARTY IN SUPPORT OF AUTOMATIC EXTENSION
11/13/2020: Request for Entry of Default / Judgment
10/20/2020: Proof of Service (not Summons and Complaint)
8/13/2020: Proof of Service - No Service
8/5/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 08/05/2020
7/27/2020: Notice of Motion
7/27/2020: Proof of Service (not Summons and Complaint)
7/20/2020: Declaration - DECLARATION PLM LOAN MANAGEMENT SERVICES, INC.'S DECLARATION OF NON-MONETARY STATUS OF DEFENDANT CIVIL CODE 2924L
6/8/2020: Opposition - MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND OSC RE PRELIMINARY INJUNCTION
6/8/2020: Declaration - DECLARATION SUPPLEMENTAL DECLARATION OF BENJAMIN R. LEVINSON RE LACK OF SERVICE IN OPPOSITION TO EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND OSC RE PRELIMINARY INJUNCTION
6/9/2020: Minute Order - MINUTE ORDER (EX PARTE APPLICATION OF PLAINTIFF, ERINA GILERMAN, FOR TEMPOR...)
Hearing06/24/2021 at 08:30 AM in Department 1 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Judgment Notwithstanding the VerdictRead MoreRead Less
Hearing06/24/2021 at 08:30 AM in Department 1 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for New TrialRead MoreRead Less
Docketat 08:30 AM in Department 1, David J. Cowan, Presiding; Non-Appearance Case Review (Re Receipt of Proposed Order of Dismissal) - HeldRead MoreRead Less
DocketCertificate of Mailing; Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Non-Appearance Case Review Re Receipt of Proposed Order of Di...)); Filed by ClerkRead MoreRead Less
DocketReply (Reply to Plaintiff's Objection to Propposed Order of Dismissal Filed on May 21, 2021); Filed by PLM LOAN MANAGEMENT SERVICES, INC. (Defendant)Read MoreRead Less
DocketOrder (of Dismissal); Filed by PLM LOAN MANAGEMENT SERVICES, INC. (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department 19; Hearing on Demurrer - without Motion to Strike - Not Held - Taken Off Calendar by PartyRead MoreRead Less
DocketMotion for Judgment Notwithstanding the Verdict; Filed by Erina Gilerman (Plaintiff)Read MoreRead Less
DocketObjection (to Proposed Order re Dismissal); Filed by Erina Gilerman (Plaintiff)Read MoreRead Less
DocketMEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND OSC RE PRELIMINARY INJUNCTION; Filed by REDWOOD MORTGAGE INVESTORS VIII, a California limited partnership (Defendant)Read MoreRead Less
DocketDeclaration (of Benjamin R. Levinson re Lack of Service in Opposition to Ex Parte Application for TRO); Filed by REDWOOD MORTGAGE INVESTORS VIII, a California limited partnership (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by Erina Gilerman (Plaintiff)Read MoreRead Less
DocketNotice of Related Case; Filed by Erina Gilerman (Plaintiff)Read MoreRead Less
Docket1st Amended Complaint; Filed by Erina Gilerman (Plaintiff)Read MoreRead Less
DocketEx Parte Application (FOR TRO AND OSC RE PRELIMINARY INJUNCTION TO ENJOIN THE EXECUTION, DELIVERY AND RECORDING OF THE TRUSTEE DEEDS AND ALL FORECLOSURE ACTIVITY); Filed by Erina Gilerman (Plaintiff)Read MoreRead Less
DocketExhibit List (EXHIBIT COVER SHEET AND EXHIBITS TO DECLARATION OF MICHAEL BURWELL IN OPPOSITION TO EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND OSC RE PRELIMINARY INJUNCTION); Filed by REDWOOD MORTGAGE INVESTORS VIII, a California limited partnership (Defendant)Read MoreRead Less
DocketSummons (on Complaint); Filed by Erina Gilerman (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by Erina Gilerman (Plaintiff)Read MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by ClerkRead MoreRead Less
Case Number: 20STCV21196 Hearing Date: April 15, 2021 Dept: 1
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
ERINA GILERMAN, ) CASE NUMBER: 20STCV21196
REDWOOD MORTGAGE INVESTORS, ) ERINA GILLERMAN AGAINST JUDGE
et al., ) DAVID J. COWAN AND OSC RE:
____________________________________) Dept.: 1
. (a)(4); Frisk v. Superior Court (2011) 200 Cal.App.4th 402, 410; see also Jacobs v. Superior Court (1959) 53 Cal.2d 187, 190 [assessing whether challenge timely].)
Statement of Facts
On December 20, 2019, Redwood Mortgage Investors (“RMI”) filed a complaint for judicial foreclosure against Erina Gilerman (“Gilerman”), Case No. 19STCV46014 (“the earlier case”), which case was assigned to Judge Bowick.
On February 20, 2020, Gilerman filed a cross-complaint in the earlier case against RMI related to various issues as to the loan that was the basis for the foreclosure.
On June 2, 2020, the undersigned (who was covering for Judge Bowick when the Civil courts were closed due to the pandemic) issued a written decision in the earlier case denying a TRO and OSC for preliminary injunction against a proposed trustee’s sale.
On June 4, 2020, a trustee’s sale concerning the same loan was held, at which RMI made a successful credit bid for the subject property.
On June 5, 2020, Gilerman filed a complaint in this case against RMI and PLM Management Services (“PLM”) pertaining to issues with the foreclosure and loan and seeking to set aside the trustee’s sale.
On August 5, 2020, Judge Bowick deemed this case and the earlier case related.
On November 3, 2020, in a ten-page ruling, Judge Bowick sustained a demurrer to Gilerman’s first amended complaint in this case, with leave to amend. The Court found there was insufficient allegation of tender of amounts due or, alternatively, of some basis for an exception to the tender requirement. Further, the Court found Gilerman had insufficiently alleged damage by reason of the sale.
On November 17 and 24, 2020, Judge Bowick denied ex parte applications related to the scheduling of a proposed motion for reconsideration of the order sustaining the demurrer.
On December 29, 2020, new defendant Behrend filed a peremptory challenge against Judge Bowick in this case.
On January 4, 2021, Judge Bowick accepted the challenge.
On January 15, 2021, PLM filed a motion for reconsideration of the order accepting the challenge. PLM contended that Behrend was a sham defendant used by Gilerman for purposes of “judge shopping.” PLM submitted a Declaration of Elizabeth Knight that Behrend had no involvement in the underlying facts and is not as Gilerman alleged an employee of PLM. According to evidence PLM presented, Behrend is a former client of Gilerman’s lawyer, Gina Lisita. Therefore, PLM contends that Judge Bowick should not have accepted the challenge. In view of Judge Bowick’s unavailability to hear the motion (due to accepting the challenge), however, the motion was transferred to Dept. 1 for determination.
On February 26, 2021, Gilerman filed a peremptory challenge against the undersigned sitting in Dept. 1.
On March 1, 2021, Behrend, representing herself, filed a pleading indicating that she was improperly sued and should be dismissed.
On March 2, 2021, PLM, filed an objection to the peremptory challenge against the undersigned. PLM contended that because Behrend was a proxy for Gilerman and Behrend had already challenged Judge Bowick, Gilerman could not now challenge the undersigned.
On March 4, 2021, the undersigned set a hearing on the objection to the challenge.
On March 11, 2021, Gilerman filed a Reply to the Objection. The Reply contains no evidence or argument to show why Behrend is not a sham defendant.
On March 18, 2021, the Court held a hearing on the Objection to the challenge and continued the hearing to April 15, 2021 for consideration of briefing related to whether this case is a continuation of the earlier case. At the hearing, Gilerman’s counsel had “no comment” in response to the Court’s inquiry whether Behrend was an employee of PLM. Counsel also declined to answer whether her former client, Behrend, had waived any conflict in counsel suing her on behalf of Gilerman. As a result, and to ensure there was no fraud on the Court, the Court issued an OSC re: dismissal and scheduled same for hearing on April 15, 2021 with any response to be filed beforehand.
On March 25, 2021, RMI filed a brief as to whether this case was a continuation of the earlier case.
On March 26, 2021, Gilerman filed a brief as to whether this case was a continuation of the earlier case.
On April 2, 2021, Gilerman filed a response to the OSC re: dismissal. Gilerman provided no evidence to support her having added Behrend as a party to this case. Likewise, counsel Lisita provided no information related to whether this matter – which is materially adverse to Behrend in seeking to hold her responsible for alleged wrongdoing - was related to the prior matters in which she represented Behrend and if so whether she had obtained her former client’s informed written consent.
On April 8, 2021, PLM filed a reply in support of the OSC.
On April 9, 2021, RMI filed a declaration pertaining to whether its attorney, Benjamin Levinson, was in fact preparing its pleadings.
1. Whether the challenge to the undersigned is an impermissible
second peremptory challenge
Assuming for purposes of the challenge to the undersigned that Gilerman was the real party in interest in Behrend challenging Judge Bowick and Behrend had no independent interest in doing so, it appears likely that either Behrend’s challenge would be stricken or the motion for reconsideration of the order accepting the challenge would be granted. In either event the case would then still be with Judge Bowick. Therefore, the second challenge to the undersigned would be moot since Department 1 would not be assigned the case. Under those scenarios, the Court would not need to address whether there was a second impermissible challenge.
The Court discusses Behrend’s challenge to Judge Bowick further below, but first needs to determine whether it will accept the instant challenge before it is able to reach other issues. Therefore, the Court first turns to whether this is a second impermissible challenge – as PLM asserts in its objection. The Court instead applies the continuation of the case doctrine in ruling on PLM’s objection; in ruling under this doctrine, the Court does not need to reach the factual issues of the scope of Gilerman’s involvement in Behrend’s challenge (as assumed above and discussed below).
2. Continuation of the case
The Court has reviewed the Responses of Gilerman and PLM regarding whether this case is a continuation of the earlier case. Gilerman acknowledges that this case is related to the earlier case, consistent with the ruling of Judge Bowick, who deemed the two cases related on August 5, 2020. There is no question that the factual and legal issues in the earlier case and this case overlap and that this case is a continuation of the earlier case (this case was seemingly filed as an attempt to avoid an adverse ruling in the earlier case that would have impacted her cross-complaint therein.) The subject matter of the two cases is not merely related; one case flows from the other.
In Birts v. Superior Court (2018) 22 Cal.App.5th 53, the Court of Appeal concluded a Section 170.6 challenge in a later-filed criminal action “virtually identical to [a] dismissed [criminal] case” was untimely under the continuation of the case doctrine, finding the later-filed action “involve[d] the same charges as before, and that the decision to dismiss the first case was motivated solely by [the assigned judge's] pretrial rulings” in the original case. (Id. at 58-59.) As the Birts court stated: “the dismissal and refiling simply erased the effect of [the assigned judge's] evidentiary rulings [in the original case]. Under section 170.6 and the cases interpreting it, we cannot allow such gamesmanship.” (Ibid.)) The same is true here.
Given this case is a continuance of the earlier case, and that the challenge was filed after the undersigned made its ruling on the TRO and OSC re: preliminary injunction, the challenge is untimely:
“Section 170.6 provides ‘[t]he fact that a judge . . . has presided at or acted in connection with a pretrial conference or other hearing, proceeding or motion prior to trial and not involving a determination of contested fact issues relating to the merits shall not preclude the later making of the motion. . . .’ (Italics added.) By negative implication, if a judge presides at or acts in connection with a pretrial motion involving a determination of contested fact issues relating to the merits, a later making of a section 170.6 motion is precluded. The hearing on the motion for preliminary injunction, involving as it does an assessment of the likelihood that plaintiffs would prevail at trial (see, e.g., Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528), requires a determination of such issues and thus precludes a later section 170.6 motion.” (Pacific etc Conference v. Superior Court (1978) 82 Cal.App.3d 72, 79.)
Hence, Gilerman’s reliance on Pacific Conf., supra, to support her argument is misplaced. In fact, it supports PLM’s.
By contrast, the other authority Gilerman relies upon, Landmark Holding Group v. Superior Court (1987) 193 Cal.App.3d 525 requires greater analysis: In that case, the Court held that a judge having heard a TRO request was not a hearing that would result in a challenge thereafter to the bench officer being untimely. The Landmark Court states: “The issuance of a TRO is not a determination of the merits of the controversy. [Cite.] All that is determined is whether the TRO is necessary to maintain the status quo pending the noticed hearing on the application for preliminary injunction.” (Id. at 528 (citing Biasca v. Superior Court (1924) 194 Cal. 366, 367.))
In the earlier case, however, the undersigned did more than just deny the request for a TRO. It also denied the application for an OSC re: preliminary injunction. (See 6/2/20 Order, p. 7.) Thus, unlike in Landmark, the Court also analyzed the parties’ likelihood of prevailing on the merits. Indeed, Landmark notes: “In contrast to the ex parte proceeding, the hearing on the preliminary injunction is a full evidentiary hearing giving all parties the opportunity to present arguments and evidence.” Though in the earlier case, there was not a hearing on the preliminary injunction, and instead the Court was just deciding whether to issue an OSC, more than just maintaining the status quo was involved. Indeed, were it not a dispositive order, presumably Gilerman could not now be pursuing an appeal from it.
In Gilerman’s response, she argues also that the undersigned is disqualified under CCP sec. 170.1 as a witness to the claims she is making in this case by virtue of the hearing held on June 2, 2020. Gilerman, however, has not filed a formal motion under Section 170.1. Unless and until she does so, the Court will not now rule on any such motion. However, it should be noted that a judge cannot be called a witness based on having presided over a case (see Evidence Code sec. 703.5) and therefore this claim of alleged disqualification may not be well taken. (See Liteky v. U.S. (1994) 510 U.S. 540, 555 (claims of disqualification may not ordinarily be based on a judge’s rulings); Mayes v. Leipzinger (9th Cir. 1984) 729 F.2d 605, 607 (affirming denial of recusal from case after having presided over underlying case).)
For these reasons, the challenge to the undersigned is untimely. The Court therefore reaches the OSC.
3. Whether this case should be dismissed
Whether or not Gilerman herself prompted Behrend to file a challenge against Judge Bowick, the weight of the evidence shows Gilerman’s lawyer had to have engineered that maneuver: Gilerman’s counsel only added Behrend as a defendant on the second amended complaint, contending falsely that Behrend was employed by PLM (when she was not), after adverse rulings by Judge Bowick against Gilerman.
Gilerman was given an opportunity to prove that adding Behrend as a defendant was not a sham. She made no meaningful attempt to to do so. No evidence was offered in response to the OSC that Behrend was employed by PLM; a verified allegation in a complaint is not evidence. PLM, by contrast, offered a declaration of one of its officers in support of its motion for reconsideration wherein she stated Behrend was not employed by PLM. Gilerman offered no evidence in rebuttal. Further, Behrend herself submitted a declaration that she had not done anything to justify being sued (from which can be inferred that she was not employed by PLM). Behrend’s statement likewise was not refuted. Indeed, when the Court sought further information at the March 18, 2021 hearing, counsel declined to answer the Court’s questions regarding Behrend.
Erroneously adding a party is not necessarily in itself a fraud on the Court so as to warrant dismissal if it turns out some belief was mistaken. Here, however, Gilerman has not offered any explanation how this additional unsubstantiated allegation (that proved to be false) was not part of an improper attempt at forum shopping to avoid the effect of Judge Bowick’s adverse rulings just prior to the amendment (where Behrend then immediately filed the challenge against Judge Bowick.) Nothing is offered to refute the initial impression of this Court – in issuing the OSC - that something may have been amiss when Gilerman’s counsel could not explain why Behrend had been named and declined to say whether any conflict waivers had been obtained. Consistent therewith, Gilerman does not explain why Behrend was not named as a party from the outset if she had any involvement (Behrend alleged she did not, as noted).
Gilerman’s work product argument fails where the pleading in question was filed and thus is subject to permissible inquiry. Similarly, claiming attorney client privilege fails where there is no evidence there was any communication with Gilerman on the issue. The Court will take action to stop a fraud on itself where there is ample undisputed circumstantial evidence of sham pleading, even if there may not be direct evidence.
Courts have broad inherent powers – not dependent on statute - to regulate practice before the Court and to prevent abuse of its process, including by way of dismissal of an action that is fraudulent where no other remedy can restore fairness to the proceeding. (Slesinger v. Disney (2008) 155 Cal.App.4th 736, 757-764.) A court’s exercise of that power “need not be preceded by violation of a court order.” (Id., 155 Cal.App.4th at 764) In determining whether another lesser remedy might instead satisfy the Court’s concern that its processes are fair and not abused, the Court looked to the reasoning of the Ninth Circuit in Hernandez v. City of El Monte (9th Cir. 1998) 138 F.3d 393, which set out a five-factor test to determine whether a court properly exercised its discretion in dismissing a case as a sanction for improper judge-shopping: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” (Id. at 399.)
Applying those factors here, first, the judge shopping herein has delayed this case since November when Behrend was added as a defendant – thereby defeating expeditious resolution of the case. This factor thus weighs in favor of dismissal. Second, adding Behrend impeded the Court’s ability to manage its docket by requiring a second judge to review this complex history and hold two hearings related to this issue. This factor also then weighs in favor of dismissal. Third, defendants have been prejudiced by the likely significant fees for multiple extra proceedings. This factor weighs in favor of dismissal also. The fourth factor, the policy favoring determination on the merits, does not weigh in favor of dismissal. Fifth, the lack of availability of a lesser sanction also weighs in favor of dismissal: Monetary sanctions would still leave the seemingly improper situation where counsel for Gilerman is seeking a default judgment against her former client, Behrend, without having shown, as requested, whether this was consistent with her duties under Rule 1.9(b) of the California Rules of Professional Conduct. This is more than merely extra fees and delay. Only by dismissal will the Court ensure that its process is not abused – as is the purpose of this power. In sum, these factors together weigh strongly in favor of dismissal.
An attorney is an agent of the client. (Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 403 (the “attorney-client relationship . . . is governed by the principles of agency.”)) An attorney’s actions in handling a case must necessarily be imputed to the client, with certain exceptions such as waiver of a right to a jury. (Id. (“the client as principal is bound by the acts of the attorney-agent within the scope of [her] actual authority (express or implied) or [her] apparent or ostensible authority; or by unauthorized acts ratified by the client.”)) However, making the tactical decision of adding a defendant to thereby challenge a judge is something for which the client will be responsible. (Id. at 404 (an attorney has implied actual authority to make “tactical decisions” in litigation without express client consent); Pioneer Inv. Services co. v. Brunswick Associates Ltd. Partnership (1993) 507 U.S. 380, 396 (“clients must be held accountable for the acts and omissions of their attorneys.”))
Here, Gilerman “voluntarily chose this attorney as [her] representative in the action, and [s]he cannot now avoid the consequences of the acts or omissions of this freely selected agent,” at least in tactical matters. (Link v. Wabash R.R. Co. (1962) 370 U.S. 626, 633-34.) “Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and considered to have notice of all facts, notice of which can be charged upon the attorney.” (Ibid.) There is also no evidence here in response to the OSC that Gilerman herself did not approve or ratify her attorneys’ actions. (But see Blanton, supra, 38 Cal.3d at 404 (finding “the court and opposing counsel must be able to rely on the [tactical] decisions [made by counsel] even when the client voices opposition in open court.”)) Indeed, Gilerman verified the second amended complaint.
Therefore, without resolving the factual issue of whether Gilerman was herself involved in the decision to add Behrend for purposes of filing a peremptory challenge to Judge Bowick, the Court finds the weight of unrebutted evidence shows that tactical decision was in any event carried out by Gilerman’s counsel and is therefore attributable to her under well-established authority, whether or not she ratified those acts.
For the foregoing reasons, the Court dismisses the second amended complaint.
1 An appeal is pending from that order.
 Unlike the issue below as between Gilerman and her attorney as to who bears responsibility for adding Behrend as a defendant, this issue does not depend upon a legitimate inference but rather what communications there may have been between Gilerman’s lawyers and Behrend — who was representing herself.
 The Court does not address whether this case is related to certain unlawful detainer cases between the parties concerning the subject property; that issue is not material here.
 Gilerman may in fact have had some personal involvement where she after all verified the complaint falsely alleging Behrend was employed by PLM.
 That concern appears now justified where collaterally the Court has since learned Lisita was previously ordered to disgorge significant money belonging to Behrend in connection with Behrend’s ex-husband’s bankruptcy. The nature of the relationship between Lisita and Behrend is beyond what the Court needs to now rule upon.
 One of the several attorneys for Gilerman, Michael Shemtoub, seems to be arguing it was his idea (and hence not Lisita’s) to add Behrend; however, Lisita executed the second amended complaint naming Behrend -- who was her client. What responsibility Shemtoub may also have is not an issue that the Court needs to now address.
 Even as to this factor, it does not weigh significantly in the other direction. Addressing the merits may not be necessary where the Court already sustained a demurrer to the first amended complaint.
 Dismissal of this case still leaves Gilerman with her cross-complaint in the earlier case. Whether she can supplement her cross-complaint therein to address the allegations relating to the trustee’s sale is not now before the Court.
 Gilerman asserts as a defense that RMI’s attorney, Levinson, is also acting improperly and cannot be heard to complain about her tactics. First, improper action by another party would not justify Gilerman’s conduct. Second, the issue Gilerman asserts - that the work for RMI is allegedly being performed by a different lawyer – Rusty Reinhart - turns out to be without basis. It appears that some years ago Levinson used a pleading format from that other lawyer when they used to have adjoining offices. This format still showed on Levinson’s subsequent pleadings. There is no wrongdoing here by RMI or its attorney.
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