On 03/15/2017 JOSEPHINE LIVINGSTON filed a Personal Injury - Other Product Liability lawsuit against FRANCES JONES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are GEORGINA T. RIZK, MARK A. BORENSTEIN and KRISTIN S. ESCALANTE. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
GEORGINA T. RIZK
MARK A. BORENSTEIN
KRISTIN S. ESCALANTE
DOES 1 TO 100
JONES FRANCES DBA MCDONALDS
JONES MANAGEMENT - LA TIJERA INC.
DEFENDANT-IN-INTERVENTION JONES MANAGEMENT - LA TIJERA INC.
PERLSTEIN JOHN J. ESQ.
YOUNG DARREN S.
EKPENISI MACAULEY ISIOMA ESQ.
RICHARDSON MICHAEL DANTON ESQ.
AMIRKHANYAN TATEVIK TINA ESQ.
ZIMMERMAN BRIAN F. ESQ.
KAHANOWITCH RICHARD MICHAEL ESQ.
BUEHLER MARK BERNARD ESQ.
BUEHLER MARK BERNARD ESQ.
10/21/2020: Association of Attorney
10/9/2020: Separate Statement
10/9/2020: Declaration - DECLARATION IN OPPOSITION TO MSJ
6/19/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: COVID-19;) OF 06/19/2020
6/19/2020: Reply - REPLY REPLY AS TO OPPOSITION TO OUR MSJ
6/11/2020: Opposition - OPPOSITION MEMORANDUM IN SUPPORT OF OPPOSITION TO MSJ
6/12/2020: Declaration - DECLARATION IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MSJ
6/15/2020: Declaration - DECLARATION TINA AMIRKHANYAN IN SUPPORT OF RESPONSE
6/15/2020: Objection - OBJECTION IN SUPPORT OF RESPONSE
11/14/2019: Notice - NOTICE OF RULING RE: DEFENDANT, JONES MANAGEMENT - LA TIJERA, INC.'S MOTION TO ENFORCE SETTLEMENT
2/26/2020: Motion for Summary Judgment
8/8/2019: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT))
6/26/2019: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT))
3/27/2019: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT))
11/5/2018: Notice of Posting of Jury Fees
3/12/2018: SUBSTITUTION OF ATTORNEY-CIVIL
4/11/2017: JONES MANAGEMENT-LA TIJERA, INC.'S ANSWER TO COMPLAINT
Docketat 1:30 PM in Department 29, Kristin S. Escalante, Presiding; Order to Show Cause Re: (Entry of Judgment Pursuant to Granting of Defendants Frances Jones and Jones Management-LA Tijera, Inc. 's Motion for Summary Judgment on 10/26/2020) - Not Held - Vacated by CourtRead MoreRead Less
DocketJudgment (Re: Defendants' Motion for Summary Judgment, or IN The Alternative, Summary Adjudication); Filed by Frances Jones (Defendant); Jones Management - La Tijera, Inc. (Defendant in Intervention)Read MoreRead Less
Docketat 10:30 AM in Department 29, Kristin S. Escalante, Presiding; Trial Setting Conference - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 3:28 PM in Department 29, Kristin S. Escalante, Presiding; Ruling on Submitted MatterRead MoreRead Less
DocketCertificate of Mailing for ((Court order on Submitted Matter Re: Defendants, Fances Jones ...) of 10/30/2020); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Court order on Submitted Matter Re: Defendants, Fances Jones ...)); Filed by ClerkRead MoreRead Less
DocketDeclaration (of Mark B. Buehler re Motion for Summary Judgment); Filed by Frances Jones (Defendant); Jones Management - La Tijera, Inc. (Defendant in Intervention)Read MoreRead Less
Docketat 1:30 PM in Department 29, Kristin S. Escalante, Presiding; Hearing on Motion for Summary Judgment (Or In The Alternative, Summary Adjudication, Filed by Defendants, Fances Jones and Jones Management-La Tijera, Inc.) - Held - Taken under SubmissionRead MoreRead Less
DocketMinute Order ( (Hearing on Motion for Summary Judgment Or In The Alternative,...)); Filed by ClerkRead MoreRead Less
DocketAssociation of Attorney; Filed by Josephine Livingston (Plaintiff)Read MoreRead Less
DocketSUBSTITUTION OF ATTORNEY-CIVILRead MoreRead Less
DocketREQUEST FOR DISMISSALRead MoreRead Less
DocketPartial Dismissal (w/o Prejudice); Filed by Josephine Livingston (Plaintiff)Read MoreRead Less
DocketJONES MANAGEMENT-LA TIJERA, INC.'S ANSWER TO COMPLAINTRead MoreRead Less
DocketAnswer; Filed by Frances Jones (Defendant); McDonald's (Defendant)Read MoreRead Less
DocketProof-Service/Summons; Filed by Josephine Livingston (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketComplaint; Filed by Josephine Livingston (Plaintiff)Read MoreRead Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
Case Number: BC654153 Hearing Date: October 26, 2020 Dept: 29
The Court does not intend to issue a tentative ruling. The parties should be prepared to address the following issues (among others):
A. CONDITION PRECEDENT
The agreement provides in relevant part: “The Plaintiff(s) shall hold the Defendant(s) harmless for any and all liens that may exist in the litigation . . . . [¶] The settlement is contingent upon . . . the satisfaction by Plaintiff of any claims for attorneys’ fees and costs by John Perlstein and B&D Law Group.”
1. Does the undisputed evidence establish that this language imposes not only a condition to Defendants’ performance, but also imposes an affirmative obligation on Plaintiff to satisfy Perlstein’s and B&D Law Group’s claims?
(See Witkin, Summary of California Law, Contracts, § 801 [failure of a condition to happen, alone, merely excuses the other party's performance; breach of covenant, alone, merely gives the other party a right of action for damages [or specific performance]; but the same fact or act may be both a condition and a promise, resulting in both an excuse of counterperformance and a right of action for damages [or specific performance].”].)
2. Alternatively, can the language be fairly read as making the settlement contingent on Plaintiff’s negotiation of a satisfactory resolution to the claims for attorneys’ fees? If so, does this preclude summary judgment?
(Please note that the court’s tentative view is that there is at least a triable issue as to whether counsels’ agreement regarding the allocation of settlement proceeds to pay attorneys’ fees is binding on Plaintiff. Plaintiff presents evidence that she did not agree to the allocation and did not give her attorney the authority to resolve the claims for attorneys' fees on her behalf. (See Levy v. Superior Court (1995) 10 Cal. 4th 578, 583 [the “law is settled that an attorney must be specifically authorized” by the client “to settle and compromise a claim”]). Thus, the court is not persuaded by the argument that the condition precedent was met.)
3. If the language is ambiguous, can the court nonetheless determine the contract interpretation issue on summary judgment? Or is there a triable issue of fact?
4. Would any issue regarding the purported condition precedent be resolved if Defendants paid the fees to Perlstein and B&D in the amounts to which they agreed, thus waiving the condition precedent and thus precluding any argument that those claims have not been satisfied?
Case Number: BC654153 Hearing Date: June 26, 2020 Dept: 29
Livingston v. Frances Jones dba McDonald’s Corporation BC654153
MOTION TO INTERVENE
Motion by Jones Management-LA Tijera, Inc. (“JM”) to File an Answer-In-Intervention is GRANTED. Intervenor is ordered to file its Answer-in-Intervention forthwith.
Intervention is proper where the intervenor shows an interest relating to the property or transaction which is the subject of the action and disposition of that action may as a practical matter impair or impede that person’s ability to protect the interest. Cal Code Civil Procedure § 387(b).
Intervenor has an interest in this litigation in that it contends it owns the premises where the accident occurred and which is the subject of this action. Exhibit 4, Response to Special Interrogatory #1. Plaintiff alleges that Defendants were responsible for the maintenance, care and condition of the premises, wherein Plaintiff was allegedly sold food containing a foreign object. Complaint, page 4.
Intervention may take place where the nonparty intervenor becomes a party to the action between other persons by “[u]niting with a Defendant in resisting the claims of a plaintiff.” Cal Code Civ Procedure § 397(b).
Contrary to Plaintiff’s argument, the motion does not seek dismissal of Defendant Frances Jones dba McDonald’s. Whether or not she is a proper party to this action or liable for any of the alleged misconduct is an issue of fact that cannot be determined by way of this motion.
Plaintiff’s request to reopen discovery is improperly sought by way of opposition. Such a request would be considered only upon a proper motion demonstrating the relevant factors necessary to warrant that order. Cal Code Civ Procedure § 2024.050.
Intervenor must give sufficient statutory notice to join in the motion for summary judgment, as set forth below. At the time the motion was filed on 2/26/20, JM was not appropriately joined as a defendant in this action.
Moving party is ordered to give notice.
MOTION FOR SUMMARY JUDGMENT
Motion by Defendants Frances Jones and Jones Management-LA Tijera, Inc. (“JM”), for Summary Judgment or in the Alternative for Summary Adjudication, is continued to 10/26/2020 at 1:30 p.m. to permit JM to file an Answer-in-Intervention. JM is ordered to timely file a joinder and separate statement of facts with sufficient statutory notice to Plaintiff if it intends to join in the Motion for Summary Judgment/Adjudication filed by Defendant, Frances Jones. (See Frazee v. Seely (2002) 95 Cal. App. 4th 627, 636 (in a different factual context, stating that a defendant joining a summary judgment motion must have its own separate statement)). Plaintiff’s opposition and Defendant’s reply thereto shall be filed according to statutory deadlines.
The Answer filed on 4/11/17 by Defendant Jones Management-LA Tijera, Inc. “(erroneously sued as Frances Jones dba McDonald’s)” is stricken as it improperly attempts to join a party. Cal Code Civ Procedure § 436(b).
Moving party is ordered to give notice.