Tentative Rulings
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Case Number: ****8108 Hearing Date: August 30, 2021 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: August 30, 2021 JUDGMENT: January 14, 2021
CASE: Jim Goudarzi dba Universal Collection Co. v. Duk Hwan Kim, et al.
CASE NO.: ****8108
MOTION FOR A SETTLED STATEMENT
MOVING PARTY: Plaintiff Jim Goudarzi dba Universal Collection Co.
RESPONDING PARTY(S): Defendants Duk Hwan Kim, Gyu Ha Choi, and Adeline LA, Inc.
CASE HISTORY:
• 12/22/17: Complaint filed.
• 08/06/18: Case dismissed.
• 12/18/18: Dismissal set aside.
• 01/14/21: Judgment for Defendants.
• 02/17/21: Judgment entered.
• 03/24/21: Amended judgment entered.
• 06/04/21: Second amended judgment entered.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an action for breach of a textile and clothing credit account and continuing personal guaranty thereof. Demurrer was sustained with leave to amend the breach of contract claim and an unjust enrichment claim, but Plaintiff did not amend the Complaint. The remaining causes of action are open book account; account stated; unfair competition; and a claim for work, labor, and materials.
Plaintiff moves for a settled statement.
TENTATIVE RULING:
Plaintiff’s motion for a settled statement is CONTINUED to September 28, 2021, at 9:00 a.m. The parties are to meet and confer no later than September 10, 2021, in an attempt to draft a mutually acceptable settled statement. If the parties are unable to agree, Plaintiff is to file his revised settled statement and provide the other missing information outlined in this Order no later than September 15, 2021. Defendants may file proposed amendments to Plaintiff’s statement, if any, no later than September 22, 2021. The proposed statement, whether drafted by all parties or Plaintiff alone, is to be submitted on Form APP-014 (Proposed Statement on Appeal (Unlimited Civil Case). (CRC 8.137(c)(2).)
DISCUSSION:
Pursuant to CRC Rule 8.137, Plaintiff Jim Goudarzi dba Universal Collection Co. moves to use a settled statement for his appeal filed on April 22, 2021.
On June 25, 2021, Plaintiff’s appeal was placed in default for failure to designate the record on appeal (a deficiency directly related to this motion) and for failure to pay certain fees. However, because the Court has not received a remittitur dismissing the appeal, which would render this motion moot, it will consider the motion.
A settled statement is a “summary of the superior court proceedings approved by the superior court.” (CRC 8.137(a).) Under certain circumstances, an appellant may elect to “use a settled statement as the record of the oral proceedings in the superior court, instead of a reporter's transcript.” (Ibid.) A settled statement may be used without filing a motion under circumstances not present here. (CRC 8.137(b)(1).) Otherwise, an appellant who moves to use a settled statement must meet the following requirements:
(A) The motion must be supported by a showing that:
(i) A substantial cost saving will result and the statement can be settled without significantly burdening opposing parties or the court;
(ii) The designated oral proceedings cannot be transcribed; or
(iii) Although the appellant does not have a fee waiver, he or she is unable to pay for a reporter's transcript and funds are not available from the Transcript Reimbursement Fund (see rule 8.130(c)).
(CRC 8.137(b)(2)(A).) Here, Plaintiff has not made this required showing, having not made any argument or offered any evidence as to these three alternatives.
Additionally, an appellant’s motion must meet the following requirements:
(A) Specify the date of each oral proceeding to be included in the settled statement;
(B) Identify whether each proceeding designated under (A) was reported by a court reporter and, if so, for each such proceeding:
(i) Provide the name of the court reporter, if known; and
(ii) Identify whether a certified transcript has previously been prepared by checking the appropriate box on Appellant's Notice Designating Record on Appeal (Unlimited Civil Case) (form APP-003) or, if that form is not used, placing an asterisk before that proceeding in the notice.
(CRC 8.137(b)(3).)
Here, Plaintiff has specified the date of each proceeding but has not indicated whether either proceeding was reported by a court reporter, as required by CRC 8.137(b)(3)(B). Thus, it is unclear whether Plaintiff also needed to provide the information required in this subsection and whether the option available under CRC 8.137(b)(4) for Defendants to provide a reporter’s transcript may apply. Given that Defendants did not mention this in their opposition as an option they would elect to exercise, the Court assumes, at this time, that neither proceeding was reported. If that assumption is incorrect, however, Plaintiff would have to comply with the requirements for reported matters in any future settled statement.
As for the contents of the proposed statement itself, the following requirements must be met:
The proposed statement must:
(1) Contain a statement of the points the appellant is raising on appeal. If the condensed narrative under (2) covers only a portion of the oral proceedings, the appeal is then limited to the points identified in the statement unless the reviewing court determines that the record permits the full consideration of another point or, on motion, the reviewing court permits otherwise.
(2) Contain a condensed narrative of the oral proceedings that the appellant specified under (b)(3).
(A) The condensed narrative must include a concise factual summary of the evidence and the testimony of each witness relevant to the points that the appellant states under (1) are being raised on appeal. Subject to the court's approval in settling the statement, the appellant may present some or all of the evidence by question and answer. Any evidence or portion of a proceeding not included will be presumed to support the judgment or order appealed from.
(B) If one of the points that the appellant states will be raised on appeal is a challenge to the giving, refusal, or modification of a jury instruction, the condensed narrative must include any instructions submitted orally and not in writing and must identify the party that requested the instruction and any modification.
(3) Have attached to it a copy of the judgment or order being appealed.
(CRC 8.137(d).)
Here, Plaintiff has not included the statement of points he is raising on appeal as required by CRC 8.137(d)(1).) Nor has Plaintiff attached a copy of the judgment and the order being appealed from as required by CRC 8.137(d)(3).
Plaintiff did include a condensed narrative as required by CRC 8.137(d)(2), but Defendants have pointed to some inaccuracies in Plaintiff’s description of the testimony, such as Plaintiff’s characterization of the testimony of Defendant Kim as stating that he “did not recall” particular wording, when this Court found that Kim “denied” that the wording was there when he signed it. (Oppo., at p. 3.)
The Court notes that Defendants could have followed the procedure outlined in CRC 8.137(e) and served proposed amendments to Plaintiff’s statement, which might have obviated the need for their offer to meet and confer with Plaintiff to draft a revised version of the settled statement. However, given the other deficiencies in the motion outlined above, the motion still would not have been successful.
Nevertheless, given Defendants’ offer to meet and confer with Plaintiff to draft a mutually agreeable settled statement, the Court CONTINUES the motion to September 28, 2021, at 9:00 a.m. The parties are to meet and confer no later than September 10, 2021, in an attempt to draft a mutually acceptable settled statement. If the parties are unable to agree, Plaintiff is to file his revised settled statement and provide the other missing information outlined above no later than September 15, 2021. Defendants may file proposed amendments to Plaintiff’s statement no later than September 22, 2021. The proposed statement, whether drafted by both parties or Plaintiff alone, is to be submitted on Form APP-014 (Proposed Statement on Appeal (Unlimited Civil Case). (CRC 8.137(c)(2).)
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated: August 30, 2021 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
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Case Number: ****8108 Hearing Date: July 12, 2021 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: July 12, 2021 JUDGMENT: January 14, 2021
CASE: Jim Goudarzi dba Universal Collection Co. v. Duk Hwan Kim, et al.
CASE NO.: ****8108
MOTION TO CORRECT THE NAME OF PLAINTIFF ON THE AMENDED JUDGMENT ENTERED MARCH 21, 2021
MOVING PARTY: Defendants Duk Hwan Kim, Gyu Ha Choi, and Adeline LA, Inc.
RESPONDING PARTY(S): No opposition on eCourt as of July 7, 2021.
CASE HISTORY:
• 12/22/17: Complaint filed.
• 08/06/18: Case dismissed.
• 12/18/18: Dismissal set aside.
• 01/14/21: Judgment for Defendants.
• 02/17/21: Judgment entered.
• 03/24/21: Amended judgment entered.
• 06/04/21: Second amended judgment entered.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an action for breach of a textile and clothing credit account and continuing personal guaranty thereof. Demurrer was sustained with leave to amend to the breach of contract claim and an unjust enrichment claim, but Plaintiff did not amend the Complaint. The remaining causes of action are open book account; account stated; unfair competition; and a claim for work, labor, and materials.
Defendants move to amend the amended judgment entered March 21, 2021.
TENTATIVE RULING:
Defendants’ motion is DENIED AS MOOT.
DISCUSSION:
Motion to Correct Name of Plaintiff on Amended Judgment
Defendants move to correct Plaintiff’s name as stated in the amended judgment entered on March 21, 2021 to reflect his legal name: Jamsheed Goudarzi aka Jim Goudarzi dba Universal Collection Co. This correction was already made in the Court’s second amended judgment that was entered on June 4, 2021.
Accordingly, Defendants’ motion is DENIED AS MOOT.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated: July 12, 2021 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
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Case Number: ****8108 Hearing Date: November 26, 2019 Dept: 47
Jim Goudarzi dba Universal Collection Co. v. Duk Hwan Kim, et al.
MOTION FOR AN ORDER DEEMING REQUESTS FOR ADMISSIONS ADMITTED (CCP ; 2033.280(b)) AND FOR SANCTIONS AGAINST PLAINTIFF JIM GOUDARZI dba UNIVERSAL COLLECTION CO. IN THE AMOUNT OF $1644.65
MOVING PARTY: Defendant Adeline LA, Inc.
RESPONDING PARTY(S): No opposition on eCourt as of November 21, 2019.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an action for breach of a textile and clothing credit account and continuing personal guaranty thereof. Demurrer was sustained with leave to amend to the breach of contract claim and an unjust enrichment claim, but Plaintiff did not amend the Complaint. The remaining causes of action are open book account; account stated; unfair competition; and a claim for work, labor, and materials.
Defendant Adeline LA, Inc. moves to deem RFAs admitted and for sanctions.
TENTATIVE RULING:
Defendant Adeline LA, Inc.’s motion for an order deeming requests for admission admitted is GRANTED.
Defendant’s request for sanctions is GRANTED in the amount of $769.65 against Plaintiff Jim Goudarzi dba Universal Collection Co. (2 hours @ $350/hr. Plus $69.65 filing fee.) Sanctions are to be paid to Defendant’s counsel within 30 days.
DISCUSSION:
Motion To Deem RFAs Admitted
When a party to whom requests for admission are directed fails to respond, the party propounding the requests may move for an order that the truth of any matters specified in the requests be deemed admitted. (CCP ; 2033.280(b).) “The court shall make this order [deeming the requests admitted], unless it finds that the party to whom the request for admissions have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with section 2033.220.[1]” (CCP ; 2033.280(c).)
Defendant’s requests for admission (set one) were served by mail on March 11, 2019. (Declaration of Steven J. Barkin ¶ 5 & Exh. A.) Plaintiff’s responses were therefore due by April 15, 2019. Defendant gave Plaintiff extensions through September 30, 2019, but Defendant had not received any responses as of October 2, 2019, when this motion was filed. (Barkin Decl. ¶¶ 7-9.) Nor has Defendant indicated that it received responses after this motion was filed.
Accordingly, if not mooted prior to the hearing as a result of service of code-compliant responses, Defendant’s motion for an order deeming the truth of facts admitted in request for admissions, set one, served on Plaintiff Jim Goudarzi is GRANTED.
Defendant’s request for sanctions, which are mandatory (CCP ; 2033.280(c)), is GRANTED in the amount of $769.65 against Plaintiff Jim Goudarzi. (2 hours @ $350/hr. Plus $69.65 filing fee.) Sanctions are to be paid to Defendant’s counsel within 30 days.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated: November 26, 2019 ___________________________________
Randolph M. Hammock
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org
[1] CCP ; 2033.220 requires responses to requests for admission to meet the following requirements:
(a)
(b)
(1)
(2)
(3)
(c)
(CCP ; 2033.220.)
