This case was last updated from Los Angeles County Superior Courts on 06/04/2019 at 06:24:54 (UTC).

EVERETT CAIN ET AL VS RENOVATE AMERICA INC ET AL

Case Summary

On 05/30/2017 EVERETT CAIN filed a Contract - Business lawsuit against RENOVATE AMERICA INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is TERESA A. BEAUDET. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3146

  • Filing Date:

    05/30/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Business

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

TERESA A. BEAUDET

 

Party Details

Plaintiffs and Petitioners

CAIN EVERETT

STEWART CLAUDIA

HILLARD JOHN

Defendants and Respondents

CALIFRONIA GREEN ENERGY CENTER

RENOVATE AMERICA INC

GO GREEN ENERY CENTER

NATIONAL RENEWABLE ENERGY CENTER

WESTERN RIVERSIDE COUNCIL OF GOVERNMENTS

ENERGY ENTERPRISES USA INC

BISMOOT LIRON

HASSIDIM BENYAMIN

ATTAL OFIR SHLOMO

COUNTY OF SAN DIEGO

COUNTY OF KERN

VILDORF RAMI

TOP DESIGN INC.

NATIONSTAR MORTGAGE LLC

COUNTY OF RIVERSIDE

BENISTY ILAN

ENERGY REMODELING INC.

9 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

HILLER DAVID

HILLER DAVID WESLEY

Defendant and Respondent Attorneys

AKERMAN LLP

REED SMITH LLP

HINSHAW & CULBERTSON LLP

ABDULAZIZ GROSSBART & RUDMAN

BEST BEST & KRIEGER LLP

DAVID R. SOCHER

HALL GRIFFIN LLP

MILLER JESSE LUKE

WITCHER RACHEL CHRISTINE

MAROOTIAN SHARICE BABOUMIAN

SANCHEZ-BEHAR DANIEL

WANG WILLIE

YAEGER JACQUELINE COLLETTE

SOCHER DAVID ROBERT

 

Court Documents

Answer

3/11/2019: Answer

Order - Dismissal

5/7/2019: Order - Dismissal

PROOF OF SERVICE RE: OPPOSITION TO TOINT MOTION TO COMPEL ARBITRATION

11/30/2017: PROOF OF SERVICE RE: OPPOSITION TO TOINT MOTION TO COMPEL ARBITRATION

Minute Order

11/20/2017: Minute Order

PROOF OF SERVICE RE DEFENDANTS' AMENDED NOTICE OF JOINT 1) MOTION TO COMPEL ARBITRATION OF PLAINTIFFS' COMPLAINT AND 2) MOTION FOR STAY PENDING ARBITRATION

11/13/2017: PROOF OF SERVICE RE DEFENDANTS' AMENDED NOTICE OF JOINT 1) MOTION TO COMPEL ARBITRATION OF PLAINTIFFS' COMPLAINT AND 2) MOTION FOR STAY PENDING ARBITRATION

NOTICE OF RULING RE DEFENDANT OCWEN LOAN SERVICING, LLC?S DEMURRER TO COMPLAINT

11/1/2017: NOTICE OF RULING RE DEFENDANT OCWEN LOAN SERVICING, LLC?S DEMURRER TO COMPLAINT

NOTICE RE ORDER FOLLOWING CASE MANAGEMENT CONFERENCE

11/2/2017: NOTICE RE ORDER FOLLOWING CASE MANAGEMENT CONFERENCE

DECLARATION OF JACQUELINE C. YAEGER RE MEET AND CONFER PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41(A)(3)

10/10/2017: DECLARATION OF JACQUELINE C. YAEGER RE MEET AND CONFER PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41(A)(3)

DEFENDANTS COUNTY OF KERN, COUNTY OF RIVERSIDE AND COUNTY OF SAN DIEGO'S NOTICE OF DEMURRER; DEMURRER; ETC

10/10/2017: DEFENDANTS COUNTY OF KERN, COUNTY OF RIVERSIDE AND COUNTY OF SAN DIEGO'S NOTICE OF DEMURRER; DEMURRER; ETC

Unknown

10/17/2017: Unknown

NOTICE OF CASE MANAGEMENT CONFERENCE

6/22/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

PROOF OF SERVICE SUMMONS & COMPLAINT

7/5/2017: PROOF OF SERVICE SUMMONS & COMPLAINT

PROOF OF SERVICE SUMMONS & COMPLAINT

7/5/2017: PROOF OF SERVICE SUMMONS & COMPLAINT

NOTICE OF CASE MANAGEMENT CONFERENCE

7/17/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

Unknown

9/5/2017: Unknown

REQUEST FOR DISMISSAL

9/12/2017: REQUEST FOR DISMISSAL

DECLARATION OF ZACKARY WEBER IN SUPPORT OF DEFENDANT RENOVATE AMERICA, INC.'S 1) MOTION TO COMPEL ARBITRATION OF PLAINTIFFS' COMPLAINT AND 2) MOTION FOR STAY PENDING ARBITRATION

9/15/2017: DECLARATION OF ZACKARY WEBER IN SUPPORT OF DEFENDANT RENOVATE AMERICA, INC.'S 1) MOTION TO COMPEL ARBITRATION OF PLAINTIFFS' COMPLAINT AND 2) MOTION FOR STAY PENDING ARBITRATION

REQUEST FOR DISMISSAL

9/21/2017: REQUEST FOR DISMISSAL

119 More Documents Available

 

Docket Entries

  • 05/07/2019
  • at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Status Conference (re 1) Dismissal of Stewart arbitration parties, 2) status of petition to confirm Cain arbitration award, 3) status of brining in Western Riverside Council of Governments, 4) Trial Setting Conference) - Held

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  • 05/07/2019
  • Minute Order ( (Status Conference re 1) Dismissal of Stewart arbitration part...)); Filed by Clerk

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  • 05/07/2019
  • Order - Dismissal; Filed by Court

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  • 05/07/2019
  • Notice (Amended Notice of Hearing on Petition); Filed by Everett Cain (Plaintiff)

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  • 04/30/2019
  • Notice of Hearing on Petition; Filed by Everett Cain (Plaintiff)

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  • 04/30/2019
  • Memorandum of Points & Authorities; Filed by Everett Cain (Plaintiff); Claudia Stewart (Plaintiff)

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  • 04/30/2019
  • Declaration (In Support of Motion); Filed by Everett Cain (Plaintiff); Claudia Stewart (Plaintiff)

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  • 04/30/2019
  • Motion for Leave to Amend (First Amended Complaint); Filed by Everett Cain (Plaintiff)

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  • 04/30/2019
  • Petition to Confirm Arbitration Award; Filed by Everett Cain (Plaintiff)

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  • 04/30/2019
  • Notice (of Association of Counsel); Filed by Everett Cain (Plaintiff); Claudia Stewart (Plaintiff)

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273 More Docket Entries
  • 07/05/2017
  • PROOF OF SERVICE SUMMONS & COMPLAINT

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  • 07/05/2017
  • PROOF OF SERVICE SUMMONS & COMPLAINT

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  • 07/05/2017
  • PROOF OF SERVICE SUMMONS & COMPLAINT

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  • 07/05/2017
  • PROOF OF SERVICE SUMMONS & COMPLAINT

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  • 07/05/2017
  • PROOF OF SERVICE SUMMONS & COMPLAINT

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  • 06/22/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 06/22/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 05/30/2017
  • COMPLAINT FOR DAMAGES; CAUSES OF ACTION, FRAUD - INTENTIONAL MISREPRESENTATION; ETC

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  • 05/30/2017
  • Complaint; Filed by Everett Cain (Plaintiff); Claudia Stewart (Plaintiff); John Hillard (Plaintiff)

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  • 05/30/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC663146    Hearing Date: January 31, 2020    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

EVERETT CAIN, et al.,

Plaintiffs,

v.

RENOVATE AMERICA, INC., et al.,

Defendants.

Case No.: BC 663146

Hearing Date: January 31, 2020

Hearing Time: 8:30 a.m.

[tentative] order RE:

motion to quash service of summons on doe amendment to complaint

Background

Plaintiffs Everett Cain and Claudia Stewart (jointly, “Plaintiffs”) filed this action on May 30, 2017, asserting 20 causes of action against 20 defendants. Plaintiffs are homeowners over 65 who allege that they were victims of the “HERO Program,” a form of public-private financing for clean energy home improvements paid through the homeowner’s property taxes. Plaintiffs allege that while they were promised that the program would allow them to save money on energy costs, after they entered the program, their energy costs remained the same but their property tax bills increased. When Plaintiffs were unable to pay those assessments, mortgage companies stepped in to pay those taxes, and then began demanding reimbursement and threatening foreclosure as a result. Plaintiffs also allege that the various defendants were all involved in signing Plaintiffs up for the program and sought damages and injunctive relief to prevent collection on the underlying loans.

Since the complaint was filed, many of the defendants have been dismissed, settled out, or have judgments against them. Many of the causes of action have also been dismissed. Plaintiffs have since indicated their intent to simplify this action by focusing on one cause of action for injunctive relief and on one defendant, Wilmington Bank, NA, as Trustee of Hero Funding Trusts 2014-1, 2014-2, 2015-1, 2015-2, 2015-3, 2016-1, 2016-2 (“Wilmington”). Plaintiffs assert that as part of their participation in the Hero Program, they signed contracts agreeing to they would pay back the loan on the home improvements (such as solar panels) via additional assessments on their property tax bills, thus creating a security interest in Plaintiffs’ properties. Plaintiffs allege that prior to the filing of this lawsuit but after the underlying loans were funded, Wilmington was assigned the security interests created by the other defendants, and in particular Renovate America, Inc. (“Renovate”). Plaintiffs contend that the security interests held by Wilmington are void pursuant to Civil Code section 1804.1, subdivision (j). Plaintiffs had never before asserted a claim for injunctive relief based on Civil Code section 1804.1, subdivision (j), and so on April 30, 2019, Plaintiffs moved for leave to amend their complaint to seek injunctive relief on a class basis on behalf of other homeowners over 65 similarly situated based on the Civil Code section 1804.1, subdivision (j) claim.

On July 2, 2019, Plaintiffs filed an Amendment to Complaint naming Wilmington in place of a Doe defendant. On August 1, 2019, Plaintiffs filed an Update to Court re Case Status, in which Plaintiffs state that they elected to serve Wilmington so that it could respond directly to the proposed class allegations, to the motion for leave to amend, and to all other outstanding issues in the case. Plaintiffs assert that on July 8, 2019, Plaintiffs served on Wilmington by personal service the Doe amendment, the summons, and a copy of the operative non-class action First Amended Complaint in this action.

Wilmington now moves to quash service of the summons and the Doe amendment. Plaintiffs oppose.

Request for Judicial Notice

The Court grants Wilmington’s request for judicial notice as to Exhibits A and B.

Discussion

“When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly[.]” ((Code Civ. Proc., § 474.) “Section 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until he has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.” ((McOwen v. Grossman (2007) 153 Cal.App.4th 937, 943); (see also Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170 [“The phrase ‘ignorant of the name of a defendant’ is broadly interpreted to mean not only ignorant of the defendant’s identity, but also ignorant of the facts giving rise to a cause of action against that defendant.”].) “The fact that the plaintiff had the means to obtain knowledge is irrelevant.” ((McOwen v. Grossman, supra, at pp. 943-944); (see also Mishalow v. Horwald (1964) 231 Cal.App.2d 517, 523-524 [“However, whether plaintiffs could or could not have ascertained the [names of Doe defendants] before suit was filed is immaterial to the issue here, for ignorance of the facts is the critical issue, and whether it be due to misfortune or negligence is not relevant.”].) Nevertheless, a defendant named by a Doe amendment may challenge the amendment “by way of an evidence-based motion, which argues that the plaintiff ‘unreasonabl[y] delayed’ his or her filing of the challenged amendment.” ((A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1067.) A Doe amendment can be successfully challenged if the defendant establishes that the plaintiff unreasonably delayed his or her filing of the Doe amendment after learning a defendant’s identity and that the delay was prejudicial to the defendant. ((Id. at pp. 1066-1067); (see also Id. at p. 1068 [discussing plaintiff’s counsel’s declaration and stating that “we see no express statement explaining the dates upon which A.N.'s counsel learned the names of the Doe Defendants, nor do we see any explanation of whether and why their identities could not have been learned before August 2007”].)

Wilmington argues that Plaintiffs’ attempt to substitute Wilmington as a Doe defendant at this late stage is the result of unreasonable delay and would result in undue prejudice.

Plaintiffs present evidence that their counsel did not learn of Wilmington’s involvement and the legal theory under which Wilmington could be charged until March 2019. (Hiller Decl., ¶ 15; Swiderski Decl., ¶ 2.) Civil Code section 1804.1, subdivision (j) provides that “[n]o contract or obligation shall contain any provision by which: The seller takes a security interest, other than a mechanics’ lien, in the buyer’s real property which is the buyer’s primary residence where the buyer is a person who is 65 years of age or older and the contract is for a home improvement, as defined in Section 7151.2 of the Business and Professions Code.” Plaintiffs’ theory is that Wilmington was assigned the security interests originally granted to the “sellers” (Renovate) of The Hero Program loans, and as such, the security interests that Wilmington now holds in Plaintiffs’ properties are void. ((Civ. Code, § 1804.2); Hiller Decl., ¶ 15.) The Court notes that Wilmington does not offer any evidence that Plaintiffs (or their counsel) had knowledge of either Wilmington’s involvement or the basis for the Civil Code section 1804.1, subdivision (j) claim prior to March 2019. The only relevant inquiry when determining whether to allow a Doe amendment is whether the plaintiff unreasonably delayed after discovering either the identity of the Doe defendant or the facts supporting liability against the Doe defendant.[1] Prejudice to the Doe defendant is not a consideration until this first element is met. (See Mishalow v. Horwald, supra, 231 Cal.App.2d at pp. 524-525 (discussing the Doe defendant’s unmeritorious argument that he will suffer prejudice if brought in as a defendant almost three years after plaintiff’s counsel knew his identity and his involvement in the surgery at issue in the medical malpractice case).) Here, it appears to be undisputed that Plaintiffs did not delay filing the Doe Amendment after discovering the basis for liability against Wilmington.

Perhaps recognizing that the cases interpreting Code of Civil Procedure section 474 militate in favor of allowing Plaintiffs’ Doe amendment, Wilmington argues that the specific facts of this case support preventing Plaintiffs from proceeding with their lawsuit against Wilmington.[2] First, Wilmington points out that Plaintiffs have completed an arbitration since filing this action and that Wilmington was, for obvious reasons, unable to participate. Wilmington contends that the claims adjudicated in arbitration involve the claims Plaintiffs seeks to assert against Wilmington, and so it would be unjust to bind Wilmington to the findings in the arbitration award. But, as noted by Plaintiffs, there is no basis for finding that Wilmington will be bound by the judgment or the findings made in the arbitration. Plaintiffs propose to proceed against Wilmington on a novel theory—that the security interests held by Wilmington are void pursuant to Civil Code section 1804.1, subdivision (j). Further, Plaintiffs do not take the position that Wilmington’s liability on the section 1804.1, subdivision (j) claim is tied to any of the claims already adjudicated against Renovate. Indeed, Plaintiffs argue that at the time the lawsuit was filed, liability under section 1804.1, subdivision (j) did not lie against Renovate (or any other party) because by that time, the security interests had already been assigned to Wilmington.

Second, and related to the above, Wilmington argues that any claims against Wilmington should be dismissed because it is being sued as the alleged assignee of interests held by a party previously dismissed with prejudice (i.e., Renovate). Wilmington argues that, as an assignee of the Hero Program-related security interests, its involvement in this case is directly tied to that of Renovate. Because Renovate has since been dismissed with prejudice, Wilmington argues that Plaintiffs are barred from attempting to bring any claims against it. However, as noted by Plaintiffs, there is no suggestion that Wilmington has been assigned all of Renovate’s rights, and in particular, any defenses Renovate may have had against this lawsuit. The assignment at issue is simply those of the Hero Program security interests.

Finally, Wilmington argues that the proposed claim for violation of Civil Code section 1804.1, subdivision (j) is arbitrable. Even assuming that Wilmington is correct, the fact that the proposed claim is arbitrable does not weigh against allowing the lawsuit to go forward against Wilmington.

Conclusion

Based on the foregoing, the Court denies Wilmington’s motion to quash. At the hearing, the Court will discuss with the parties the time to respond to the complaint, the proposed motion to amend the complaint and the status of the pending motion for stay pending petition for coordination.

Plaintiffs are ordered to provide notice of this Order.

DATED: January 31, 2020

___________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court


[1] The Court also notes that, to the extent that the parties have raised statute of limitations concerns, the inquiry for Code of Civil Procedure section 474 purposes is limited only to whether “the requirements of section 474 are met.” (McOwen v. Grossman, supra, 153 Cal.App.4th at p. 943.) In McOwen, as in this case, the original complaint was filed within the statute of limitations but the Doe amendment was filed after the applicable statute of limitations had run. (Ibid. .) In identifying where the trial court erred, the Court of Appeal stated: “The error in this case . . . is in identifying the issue in terms of the statute of limitations. The issue, however, is not when the cause of action against the newly named defendant accrued, i.e., whether the statute of limitations bars the action against respondent. This cannot be the issue since the complaint was filed within the statute of limitations and because the complaint, as filed, named Doe defendants. The statute of limitations is not at issue under these circumstances. . . . . ‘In such situations, Code of Civil Procedure section 474 permits plaintiffs to bring in defendants if the requirements of section 474 are met. If so, that defendant is considered a party to the action from its commencement.’” (Ibid., quoting Fuller v. Tucker, supra, 84 Cal.App.4th at pp. 1169-1170.)

[2] The Court also notes that these arguments are better characterized as arguments against granting Plaintiffs leave to amend their complaint to add the Civil Code section 1804.1, subdivision (j) claim against Wilmington and against granting Plaintiffs leave to add class allegations. Though Plaintiffs’ motion for leave to amend is not technically being heard at the same time, the Court acknowledges that many of the arguments do or will overlap.