This case was last updated from Los Angeles County Superior Courts on 08/03/2020 at 16:19:42 (UTC).

JOEL JOHNSTON ET AL VS ELYSSE JOHNSTON ET AL

Case Summary

On 06/12/2018 JOEL JOHNSTON filed a Contract - Other Contract lawsuit against ELYSSE JOHNSTON. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RICHARD FRUIN, RICHARD L. FRUIN, WILLIAM F. FAHEY and CHRISTOPHER K. LUI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9816

  • Filing Date:

    06/12/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RICHARD FRUIN

RICHARD L. FRUIN

WILLIAM F. FAHEY

CHRISTOPHER K. LUI

 

Party Details

Plaintiffs, Petitioners and Cross Defendants

JOHNSTON JOEL

JOHNSTON TREE & LANDSCAPING INC.

JOHNSTON TREE AND LANDSCAPING

Defendants, Respondents and Cross Plaintiffs

DOES 1-20

JOHNSTON DALE

JOHNSTON ELYSSE

Plaintiff, Petitioner and Not Classified By Court

JOHNSTON TREE & LANDSCAPING INC.

Attorney/Law Firm Details

Plaintiff, Petitioner and Cross Defendant Attorneys

LAW OFFICES OF CHODOS & ASSOCIATES

CHODOS DAVID MANNING ESQ.

CHODOS DAVID MANNING

Defendant and Respondent Attorneys

MILLER ADAM M. ESQ

MILLER ADAM M. ESQ.

MILLER ADAM M.

Defendant and Cross Plaintiff Attorneys

MILLER ADAM M. ESQ.

MILLER ADAM M.

 

Court Documents

Minute Order - MINUTE ORDER (COURT ORDER RE: ADVANCING AND VACATING THE FINAL STATUS CONFE...)

4/3/2020: Minute Order - MINUTE ORDER (COURT ORDER RE: ADVANCING AND VACATING THE FINAL STATUS CONFE...)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: ADVANCING AND VACATING THE FINAL STATUS CONFE...) OF 04/03/2020

4/3/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: ADVANCING AND VACATING THE FINAL STATUS CONFE...) OF 04/03/2020

Minute Order - MINUTE ORDER (HEARING ON MOTION TO EXTEND DISCOVERY CUT-OFF DATE AN COMPEL ...)

2/27/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION TO EXTEND DISCOVERY CUT-OFF DATE AN COMPEL ...)

Opposition - OPPOSITION MOTION TO REOPEN DISCOVERY

2/5/2020: Opposition - OPPOSITION MOTION TO REOPEN DISCOVERY

Motion to Extend Discovery Cut-Off Date - MOTION TO EXTEND DISCOVERY CUT-OFF DATE AND (PROPOSED) ORDER TO REOPEN DISCOVERY AND COMPEL MEETING OF EXPERTS

1/9/2020: Motion to Extend Discovery Cut-Off Date - MOTION TO EXTEND DISCOVERY CUT-OFF DATE AND (PROPOSED) ORDER TO REOPEN DISCOVERY AND COMPEL MEETING OF EXPERTS

Proof of Service (not Summons and Complaint)

1/15/2020: Proof of Service (not Summons and Complaint)

Ex Parte Application - EX PARTE APPLICATION AND PROPOSED ORDER TO CONTINUE FINAL STATUS CONFERENCE AND TRIAL DATE AND ALL TRIAL RELATED DEADLINES AND TO COMPEL A MEETING BETWEEN COUNSEL FOR THE PARTIE

10/30/2019: Ex Parte Application - EX PARTE APPLICATION AND PROPOSED ORDER TO CONTINUE FINAL STATUS CONFERENCE AND TRIAL DATE AND ALL TRIAL RELATED DEADLINES AND TO COMPEL A MEETING BETWEEN COUNSEL FOR THE PARTIE

Minute Order - MINUTE ORDER (EX PARTE APPL OF PLFFS TO CONT TRIAL/RELATED DATES AND COMPEL...)

11/1/2019: Minute Order - MINUTE ORDER (EX PARTE APPL OF PLFFS TO CONT TRIAL/RELATED DATES AND COMPEL...)

Proof of Service by Mail

11/5/2019: Proof of Service by Mail

Objection - OBJECTION PLAINTIFF'S NOTICE OF RULING ON PLAINTIFF'S EX PARTE APPLICATION AND PROPOSED ORDER TO CONTINUE FINAL STATUS CONFERENCE AND TRIAL DATE AND ALL TRIAL RELATED DEADLINES AND TO COMP

11/5/2019: Objection - OBJECTION PLAINTIFF'S NOTICE OF RULING ON PLAINTIFF'S EX PARTE APPLICATION AND PROPOSED ORDER TO CONTINUE FINAL STATUS CONFERENCE AND TRIAL DATE AND ALL TRIAL RELATED DEADLINES AND TO COMP

Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION FOR TARDY FILING OF EXPERT WITNESS INFORMATION CCP 2034.720

4/15/2019: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION FOR TARDY FILING OF EXPERT WITNESS INFORMATION CCP 2034.720

Opposition - OPPOSITION TO PLFF EX PARTE APPL FOR TARDY FILING OF EXPERT WITNESS INFO

4/15/2019: Opposition - OPPOSITION TO PLFF EX PARTE APPL FOR TARDY FILING OF EXPERT WITNESS INFO

Notice of Ruling

3/20/2019: Notice of Ruling

Notice of Ruling

1/25/2019: Notice of Ruling

Minute Order - Minute Order (Order to Show Cause Re: Lack of Accounting re Business Losses...)

1/16/2019: Minute Order - Minute Order (Order to Show Cause Re: Lack of Accounting re Business Losses...)

Answer - Answer to Complaint; Demand for Jury Trial

9/26/2018: Answer - Answer to Complaint; Demand for Jury Trial

AMENDMENT TO COMPLAINT -

8/28/2018: AMENDMENT TO COMPLAINT -

NOTICE OF CASE MANAGEMENT CONFERENCE

7/12/2018: NOTICE OF CASE MANAGEMENT CONFERENCE

42 More Documents Available

 

Docket Entries

  • 03/15/2021
  • Hearing03/15/2021 at 08:30 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 03/01/2021
  • Hearing03/01/2021 at 08:30 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 12/15/2020
  • Hearing12/15/2020 at 09:00 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Status Conference

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  • 06/26/2020
  • Docketat 10:30 AM in Department 76, Christopher K. Lui, Presiding; Trial Setting Conference - Held

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  • 06/26/2020
  • Docketat 08:30 AM in Department 76, Christopher K. Lui, Presiding; Trial Setting Conference - Not Held - Advanced and Continued - by Court

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  • 06/26/2020
  • DocketMinute Order ( (Trial Setting Conference)); Filed by Clerk

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  • 05/11/2020
  • Docketat 09:30 AM in Department 76, Christopher K. Lui, Presiding; Jury Trial ((3-4 days)) - Not Held - Advanced and Vacated

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  • 05/05/2020
  • Docketat 08:30 AM in Department 76, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Advanced and Vacated

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  • 05/01/2020
  • Docketat 08:30 AM in Department 76, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Rescheduled by Court

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  • 04/29/2020
  • Docketat 3:45 PM in Department 76, Christopher K. Lui, Presiding; Court Order

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75 More Docket Entries
  • 06/22/2018
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 06/22/2018
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 06/22/2018
  • DocketProof of Service of Summons; Filed by Joel Johnston (Plaintiff); Johnston Tree & Landscaping, Inc. (Legacy Party)

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  • 06/22/2018
  • DocketProof of Service of Summons; Filed by Joel Johnston (Plaintiff); Johnston Tree & Landscaping, Inc. (Legacy Party)

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  • 06/15/2018
  • DocketSummons (on Complaint); Filed by Joel Johnston (Plaintiff); Johnston Tree & Landscaping, Inc. (Legacy Party)

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  • 06/15/2018
  • DocketAMENDED SUMMONS

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  • 06/12/2018
  • DocketCOMPLAINT FOR 1. BREACH OF FIDUCIARY DUTY (ELYSSE JOHNSON)

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  • 06/12/2018
  • DocketSUMMONS

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  • 06/12/2018
  • DocketComplaint; Filed by Joel Johnston (Plaintiff); Johnston Tree & Landscaping, Inc. (Legacy Party); Johnston Tree & Landscaping, Inc. (Plaintiff)

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  • 06/12/2018
  • DocketSummons (on Complaint); Filed by Joel Johnston (Plaintiff); Johnston Tree & Landscaping, Inc. (Legacy Party)

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Tentative Rulings

Case Number: BC709816    Hearing Date: February 27, 2020    Dept: 76

Plaintiffs allege that Defendant Elysse Johnston (Plaintiff Joel’s sister-in-law), as Secretary and CFO of the partnership business, has embezzled partnership funds for her own use unrelated to the partnership business. Plaintiffs allege that Defendant Dale Johnston, as partner of the business, negligently supervised Elysse’s activities.

Defendants filed a Cross-Complaint alleging that Plaintiff/Cross-Defendant Joel Johnston secretly engaged in landscaping jobs outside of the partnership business which should have been the partnership business’ jobs and income. Cross-Defendant also allegedly pocketed money directly from clients and did not turn the money over to the partnership.

Plaintiffs/Cross-Defendants move for an order reopening discovery and compelling a meeting of experts.  For the reasons discussed below, the motion is DENIED.

ANALYSIS

Motion To Reopen Discovery and Compel Expert Meeting

On November 1, 2019, Judge Fruin granted Plaintiff’s ex parte application to continue the trial date to May 1, 2010, but ordered that “[d]iscovery deadlines stand except as to 2034[1] [sic] demands. Any party may bring motion to reopen as to other discovery.” See November 1, 2019 minute order.

CCP § 2024.050 provides:

(a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. (b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following:  (1) The necessity and the reasons for the discovery.  (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.  (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.  (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action. (c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

Plaintiffs’ counsel did not submit a meet and confer declaration, as required by CCP § 2024.050(a). The Declaration of David Manning Chodos does not address meet and confer efforts. However, the points and authorities address meet and confer efforts at Pages 5 – 7.

Plaintiff's moving papers do not address the factors set forth in CCP § 2024.050(b) for reopening of discovery—indeed, the motion does not even mention § 2024.050. At most, the motion addresses a portion of the factor set forth at ¶ 2024.050(b)(2)—the reason why discovery was not completed (the health of Plaintiffs’ counsel, as to which the Court is certainly sympathetic)—but does not address the diligence or lack of diligence of Plaintiff in seeking discovery throughout this litigation.

Moreover, as Plaintiff’s counsel admits, the motive for conducting further discovery is facilitate a settlement at mediation or to minimize the cost of expert depositions. However, that is an insufficient reason to reopen discovery, at least where moving party has not established the factors set forth in CCP § 2024.050.

Plaintiffs claim that facts have been discovered indicating new instances of embezzlement that occurred after the original action was filed (Ps & As, Page 6:5-6). However, in order for Plaintiffs’ to litigate such claims, they would have to either file a supplemental complaint[2] or, as Plaintiffs recognize, file a separate action. However, as they are not even part of the operative complaint, such new facts do not justify reopening discovery.

Accordingly, the motion to reopen discovery is DENIED without prejudice.

As for ordering an in-person expert meet and confer, Judge Fruin’s April 15, 2019 order reads: “Court notes plaintiff needs accountant expert; each side’s accountants should meet/confer and come up with one number re damages, eliminating the need for trial testimony on issue of damages amount.” April 15, 2019 Minute Order (bold emphasis and underlining added.) Thus, Judge Fruin only suggested (“should”), but did not order the experts to meet and confer. The purpose of this meet and confer would be to eliminate the need for trial testimony on the issue of damages amount, which would merely be for judicial economy, not to effectuate either party’s due process rights. Nor did Judge Fruin mandate an in person meet and confer between the experts. Moving party fails to cite authority whereby the Court can compel experts to conduct an in-person meeting. Although the experts may meet in person if they are able to, they may alternatively videoconference or teleconference. However, the Court is not ordering them to meet and confer, as Judge Fruin did not make his meet and confer suggestion mandatory.

The request to order an in-person meeting is DENIED.

[1] CCP § 2034 was repealed in 2005.

[2] “The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer.” CCP § 464(a).

[T]echnically an amended complaint will supersede the original complaint unless there is something in the former showing that it is to be considered merely an amendment to the complaint and a "supplementary" complaint is supposed to deal only with facts arising subsequently to the filing of the original complaint and has nothing to do with amendment to conform to the proofs,

Nels E. Nelson, Inc. v. Tarman (1958) 163 Cal.App.2d 714, 720.