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This case was last updated from Los Angeles County Superior Courts on 02/27/2021 at 03:03:29 (UTC).

EXCELSIOR AT THE AMERICANA AT BRAND HOMEOWNERS ASSOCIATION V

Case Summary

On 11/15/2017 EXCELSIOR AT THE AMERICANA AT BRAND HOMEOWNERS ASSOCIATION V was filed as a Property - Construction Defect lawsuit. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ANN I. JONES. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3584

  • Filing Date:

    11/15/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Construction Defect

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

ANN I. JONES

 

Party Details

Plaintiffs and Petitioners

EXCELSIOR AT THE AMERICANA AT BRAND

EXCELSIOR AT THE AMERICANA AT BRAND HOMEOWNERS' ASSOCIATION

Defendants and Respondents

DOES 1 TO 200

THE AMERICANA AT BRAND LLC

CARUSO MANAGEMENT COMPANY LTD.

CARUSO AFFILIATED HOLDINGS LLC

AMERICANA HOMES LLC

AMERICANA HOUSING L.P.

FOREFRONT BUILDERS CORPORATION

AMERICANA HOMES II LLC

CITY OF GLENDALE

Not Classified By Court

SUNDVOLD STEPHEN J.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LEVINE D. SCOTT

LEVINE SCOTT DAVID

Defendant Attorneys

GREENFIELD JOYIA ZAPANTIS

AU PATRICK

CLINTON DAVID ALLEN

VANMUYDEN GILLIAN

 

Court Documents

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO BE RELIEVED AS COUNSEL; FURTHER STATUS C...) OF 03/10/2020, RULING RE MOTION TO BE RELIEVED AS COUNSEL

3/10/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO BE RELIEVED AS COUNSEL; FURTHER STATUS C...) OF 03/10/2020, RULING RE MOTION TO BE RELIEVED AS COUNSEL

Other - - OTHER - SUPPLEMENTAL DISCLOSURES

6/19/2020: Other - - OTHER - SUPPLEMENTAL DISCLOSURES

Order - RULING RE MOTION TO BE RELIEVED AS COUNSEL

7/13/2020: Order - RULING RE MOTION TO BE RELIEVED AS COUNSEL

Other - - STIPULATION TO PERMIT THE INSURANCE COMPANY OF THE STATE PENNSYLVANIA TO FILE A COMPLAINT-IN-INTERVENTION ON BEHALF OF ITS INSURED, FOREFRONT BUILDERS CORPORATION, A SUSPENDED CALIFORNIA COR

7/14/2020: Other - - STIPULATION TO PERMIT THE INSURANCE COMPANY OF THE STATE PENNSYLVANIA TO FILE A COMPLAINT-IN-INTERVENTION ON BEHALF OF ITS INSURED, FOREFRONT BUILDERS CORPORATION, A SUSPENDED CALIFORNIA COR

Proof of Service (not Summons and Complaint)

11/2/2020: Proof of Service (not Summons and Complaint)

Declaration - DECLARATION OF SERVICE

12/22/2020: Declaration - DECLARATION OF SERVICE

Clerks Certificate of Service By Electronic Service

12/31/2020: Clerks Certificate of Service By Electronic Service

Notice - PLAINTIFF'S NOTICE OF FILING OF OBJECTION

2/10/2021: Notice - PLAINTIFF'S NOTICE OF FILING OF OBJECTION

Declaration - DECLARATION OF LESLEY IRWIN IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT

2/10/2021: Declaration - DECLARATION OF LESLEY IRWIN IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT

Clerks Certificate of Service By Electronic Service - -

3/9/2018: Clerks Certificate of Service By Electronic Service - -

Proof of Service of Summons and Complaint - -

4/9/2018: Proof of Service of Summons and Complaint - -

Minute Order -

4/17/2018: Minute Order -

Other - - DECLARATION OF HEATHER FRIMMER IN SUPPORT OF MOTION TO COMPEL JUDICIAL REFERENCE

5/17/2018: Other - - DECLARATION OF HEATHER FRIMMER IN SUPPORT OF MOTION TO COMPEL JUDICIAL REFERENCE

Motion to Compel - MOTION TO COMPEL JUDICIAL REFERENCE

7/24/2018: Motion to Compel - MOTION TO COMPEL JUDICIAL REFERENCE

Minute Order - Minute Order (Court Order Re Notice of Related Case)

2/22/2019: Minute Order - Minute Order (Court Order Re Notice of Related Case)

Opposition - OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION FOR PERMISSION TO FILE A MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT

4/8/2019: Opposition - OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION FOR PERMISSION TO FILE A MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT

Order - RULING RE MOTION FOR RELIEF FROM COURT-ORDERED STAY AND FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

5/29/2019: Order - RULING RE MOTION FOR RELIEF FROM COURT-ORDERED STAY AND FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

161 More Documents Available

 

Docket Entries

  • 03/10/2021
  • Hearing03/10/2021 at 13:45 PM in Department 11 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Final Approval of Settlement

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  • 02/23/2021
  • Docketat 10:00 AM in Department 11, Ann I. Jones, Presiding; Hearing on Motion for Determination of Good Faith Settlement (CCP 877.6) - Not Held - Rescheduled by Court

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  • 02/23/2021
  • Docketat 10:00 AM in Department 11, Ann I. Jones, Presiding; Hearing on Motion for Preliminary Approval of Settlement - Not Held - Rescheduled by Court

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  • 02/10/2021
  • DocketPlaintiff's Notice of Filing of Objection; Filed by Excelsior At The Americana At Brand Homeowners' Association (Plaintiff)

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  • 02/10/2021
  • DocketMotion for Final Approval of Settlement; Filed by Excelsior At The Americana At Brand Homeowners' Association (Plaintiff)

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  • 02/10/2021
  • DocketProof of Service; Filed by Excelsior At The Americana At Brand Homeowners' Association (Plaintiff)

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  • 02/10/2021
  • DocketDeclaration of Scott D. Levine in Support of Motion for Final Approval of Class Settlement; Filed by Excelsior At The Americana At Brand Homeowners' Association (Plaintiff)

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  • 02/10/2021
  • DocketDeclaration of Lesley Irwin in Support of Motion for Final Approval of Class Settlement; Filed by Excelsior At The Americana At Brand Homeowners' Association (Plaintiff)

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  • 02/10/2021
  • DocketPlaintiff's Notice of Lodgment in Support of Final Approval of Class Action Settlement; Filed by Excelsior At The Americana At Brand Homeowners' Association (Plaintiff)

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  • 02/10/2021
  • DocketMemorandum of Points and Authorities in Support of Final Approval of Class Action Settlement; Filed by Excelsior At The Americana At Brand Homeowners' Association (Plaintiff)

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231 More Docket Entries
  • 01/11/2018
  • DocketNotice and Acknowledgment of Receipt; Filed by Excelsior At The Americana At Brand (Plaintiff)

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  • 12/12/2017
  • Docketat 09:00 AM in Department 308; (Order-Complex Determination; Case Determined to be Complex) -

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  • 12/12/2017
  • DocketMinute Order -

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  • 12/12/2017
  • DocketMinute order entered: 2017-12-12 00:00:00; Filed by Clerk

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  • 12/12/2017
  • DocketOrder -INITIAL STATUS CONFERENCE ORDER (COMPLEX LITIGATION PROGRAM)

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  • 12/12/2017
  • DocketOrder; Filed by Court

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  • 11/15/2017
  • DocketComplaint ( (2nd)); Filed by Excelsior At The Americana At Brand Homeowners' Association (Plaintiff)

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  • 11/15/2017
  • DocketSUMMONS

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  • 11/15/2017
  • DocketCLASS ACTION COMPLAINT FOR JUDICIAL REFERENCE FOR: (1) VIOLATIONS OF STANDARDS ENUMERATED UNDER CALIFORNIA CIVIL CODE 895 ET SEQ.; ETC

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  • 11/15/2017
  • DocketComplaint; Filed by Excelsior At The Americana At Brand (Plaintiff)

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Tentative Rulings

Case Number: BC683584    Hearing Date: March 10, 2021    Dept: 11

MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

Excelsior At The Americana At Brand Homeowners' Association v. Americana Housing, L.P., et al.

Date of Hearing: March 10, 2021

Department: SSC-11

Case No. BC683584 r/t 18STCV02432

TENTATIVE

Grant Final Approval. The Court rules as follows:(1) The Court overrules the objections of Mr. Von Richter;(2) Adopts and affirms the referee’s grant of class certification;(3) Adopts and affirms the referee’s appointment of Scott D. Levine, APC as Class Counsel;(4) Adopts and affirms the referee’s appointment of Plaintiff Excelsior at the Americana at Brand Homeowners’ Association as Class Representative; and(5) Plaintiffs’ counsel shall file a proposed Order and Judgement, consistent with this ruling the class definition and full release language by _____________________, 2021. 

FINAL APPROVAL OF CLASS ACTION SETTLEMENT

California Rules of Court, rule 3.769(g), provides for an inquiry into the fairness of the proposed settlement prior to the final approval hearing. After this, the court must make and enter judgment, including a provision for the retention of the court's jurisdiction over the parties to enforce the terms of the judgment. (See California Rules of Court, rule 3.769(h).) The class action may not be dismissed once judgment is entered. (See California Rules of Court, rule 3.770.) All class settlements are subject to a settlement hearing and court approval before entry of judgment or final order.

The trial court has broad powers to determine whether a proposed settlement is fair. (Mallick v. Superior Court (1979) 89 Cal.App.3d 434, 438.) The California standard for approval of class settlements is similar to the federal requirement that the settlement be fair, reasonable, and adequate for class members overall. (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801.)

Class Notice and Class Response

1. How was notice given? On January 8, 2021, Excelsior had Southland, a mailing house mail a physical copy of the Notice to all of its Members at the address that was contained in the Association's official membership records. (Motion ISO Final, 4:7-9; Exhibit 8 to Notice of Lodgment ISO Final Approval.) On or about January 8, 2021, the Class Notice was sent out to the members of Excelsior at the Americana at Brand Homeowners Associations, as members of the Class. The Class Notice was emailed and mailed to all class members. (Declaration of Lesley Irwin (“Irwin Decl.”), ¶2.) There have been no failure to deliver of the Class Notices. (Id. at ¶4.) Since September 24, 2020, the date that the first Class Notice was sent out, there was one (1) attempted opt-out or exclusion. (Motion, 4:19-20.) [1] On January 9, 2021, Paul Abramson, who is legally known as Paul Van Richter (“Van Richter”), a homeowner of one unit of the condominium has submitted an objection and a request to opt out. (See Exhibits 9 and 13 to Notice of Objection)

a. Opt out: Van Richter’s opt-out request states that he requests “to opt out of the class action shower claim and request that the $25,000 allocated per unit for this repair be paid to me out of the settlement funds once received so that I can effectuate repairs as necessary” due to having “zero confidence” that the “reconstruction will be executed properly or in a fair manner.” (Exhibit 13 to Notice of Objection) Counsel contends that Van Richter previously attempted to opt-out of the Settlement during the Judicial Reference Class Notice demanding instead that he be given a portion of the funds because he did not trust the Association to make proper repairs. He was informed that this was not an option. (Motion, 10:7-10.) Whether or not previously informed, Van Richter’s opt out request is invalid. The options presented were that he either opts out and receives no monies from this settlement or proceeds as a class member. Therefore, his opt-out request is invalid, he has not exercised the right to opt out as of this date, and remains a member of the class.

b. Objection: Van Richter’s objection is that the settlement of “the board of directors and their counsel was not entered into in the best interest of the membership.” Van Richter makes a conclusory statement that the settlement is unfair, yet has neither offered evidence nor articulated any reasons as to why he believes that the settlement is not in the best interest of the membership. (Exhibit 9 to Notice of Objection) Settlements constitute a compromise position and rarely give rise to the recovery of 100% of the damages. If Van Richter disagreed with the recovery options provided under this Settlement, he had the option of opting out of this settlement and pursuing an independent action, which is not an option he chose. Therefore, Van Richter’s objection is overruled.

Evaluation of the Settlement

The Court must determine if the settlement is fair, adequate, and reasonable. The settlement is entitled to a presumption of fairness where: “ (1) the settlement is reached through arm's-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.” (Dunk v. Ford Motor Company (1996) 48 Cal.App.4th 1794, 1802 (“Dunk”).) As Wershba v. Apple Computer (2001) 91 Cal.App.4th 224, 250, further notes:

A settlement need not obtain 100 percent of the damages sought in order to be fair and reasonable. (See Rebney v. Wells Fargo Bank, supra, 220 Cal.App.3d at p. 1139 [settlements found to be fair and reasonable even though monetary relief provided was "relatively paltry"]; City of Detroit v. Grinnell Corp., supra, 495 F.2d at p. 455 [settlement amounted to only "a fraction of the potential recovery"].) Compromise is inherent and necessary in the settlement process. Thus, even if "the relief afforded by the proposed settlement is substantially narrower than it would be if the suits were to be successfully litigated," this is no bar to a class settlement because "the public interest may indeed be served by a voluntary settlement in which each side gives ground in the interest of avoiding litigation." (Air Line Stewards, etc., Loc. 550 v. American Airlines, Inc. (7th Cir. 1972) 455 F.2d 101, 109.)

The Court finds that the settlement is fair, adequate, and reasonable based on the following:

n The Court preliminarily found in its Order on January 7, 2021 that the presumption of fairness should be applied. No facts have come to the Court’s attention that would alter that preliminary conclusion. Accordingly, the settlement is entitled to a presumption of fairness as set forth in the preliminary approval order.

n The percentage of objectors is small – one homeowner. On January 9, 2021, Paul Abramson, who is legally known as Paul Van Richter (“Van Richter”), a homeowner of one unit of the condominium has submitted an objection and had previously asked to opt out of the Special Master’s process for preliminary approval. (See Exhibits 9 and 13 to Notice of Objection) Van Richter’s objection is that the settlement of “the board of directors and their counsel was not entered into in the best interest of the membership.” Van Richter makes a conclusory statement that the settlement is unfair, yet has neither offered evidence nor articulated any reasons as to why he believes that the settlement is not in the best interest of the membership. (Exhibit 9 to Notice of Objection) Settlements constitute a compromise position and rarely give rise to the recovery of 100% of the damages. Further, what Van Richter appears to be requesting is that he receive directly some proportion of the disposition of the proceeds of the settlement. Where, as here, a party disagrees with the recovery options provided under this Settlement, he had the option of opting out of this settlement and pursuing an independent action. This is not the option he chose. Nor does he establish the wisdom of allowing each homeowner to elect to repair shared defects in the building such that each should be left to recover and independently address the varied and multiple issues in the common areas of the building. Therefore, Van Richter’s objection is overruled.

As noted in Munoz v. BCI Coca-Cola Bottling Co. of Los Angeles (2010) 186 Cal.App.4th 399, 408:

…a trial court's approval of a class action settlement will be vacated if the court “is not provided with basic information about the nature and magnitude of the claims in question and the basis for concluding that the consideration being paid for the release of those claims represents a reasonable compromise.” (Kullar, supra, 168 Cal.App.4th at p. 130.) In short, the trial court may not determine the adequacy of a class action settlement “without independently satisfying itself that the consideration being received for the release of the class members' claims is reasonable in light of the strengths and weaknesses of the claims and the risks of the particular litigation.” (Id. at p. 129.)

The moving papers, declarations and exhibits attached thereto, have provided this Court with “basic information about the nature and magnitude of the claims in question and the basis for concluding that the consideration being paid for the release of those claims represents a reasonable compromise” such that this Court is satisfied “that the consideration being received for the release of the class members' claims is reasonable in light of the strengths and weaknesses of the claims and the risks of the particular litigation.” (See Dunk, supra at p. 1802 [“So long as the record is adequate to reach ‘an intelligent and objective opinion of the probabilities of success should the claim be litigated’ and ‘form’ an educated estimate of the complexity, expense and likely duration of such litigation…it is sufficient.”].)

Final Report:

The Court orders class counsel to file a final report summarizing all distributions made pursuant to the approved settlement, supported by declaration.

The Court will set a non-appearance date for submission of a final report for ______________.


[1] Since September 24, 2020, the date that the first version of Class Notice was sent out as part of the Special Master’s process, there was one individual who sought to alter the settlement through the out or exclusion process. (Motion, 4:19-20.) That same individual did not, however, request to opt out again when the Court required a new Class Notice be sent following preliminary approval by the Court, which occurred on January 8, 2021. In response to that notice, that person now simply objected. (Motion 10:10-11). As for the Class Notice that was sent out on January 8, 2021, there have been no opt outs or exclusions. (Motion 4:21-22).

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