This case was last updated from Los Angeles County Superior Courts on 07/11/2019 at 00:52:02 (UTC).

LAPCHIH FAN VS DOUGLAS ELLIMAN OF CALIFORNIA INC ET AL

Case Summary

On 03/13/2018 a Contract - Other Contract case was filed by LAPCHIH FAN against DOUGLAS ELLIMAN OF CALIFORNIA INC in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7957

  • Filing Date:

    03/13/2018

  • 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

MICHELLE WILLIAMS COURT

 

Party Details

Petitioner

FAN LAPCHIH

Respondents and Defendants

SCULLY TAMI

DOES 1-25

JACOBSON JAMES

DOUGLAS ELLIMAN OF CALIFORNIA INC.

WEISS COREY

GREENLAND US HOLDING INC.

KEENAN COLIN

 

Court Documents

Minute Order

6/6/2018: Minute Order

NOTICE RE: CONTINUANCE OF HEARING

6/22/2018: NOTICE RE: CONTINUANCE OF HEARING

Notice

10/23/2018: Notice

Minute Order

3/13/2019: Minute Order

Separate Statement

3/15/2019: Separate Statement

Declaration

3/19/2019: Declaration

Motion to Compel Further Discovery Responses

3/19/2019: Motion to Compel Further Discovery Responses

Supplemental Declaration

3/22/2019: Supplemental Declaration

Notice

4/2/2019: Notice

Declaration

4/12/2019: Declaration

Notice of Rejection - Pleadings

4/16/2019: Notice of Rejection - Pleadings

Reply

4/18/2019: Reply

Certificate of Mailing for

4/19/2019: Certificate of Mailing for

Minute Order

4/29/2019: Minute Order

NOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

5/18/2018: NOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

REQUEST FOR DISMISSAL

4/23/2018: REQUEST FOR DISMISSAL

ORDER TO SHOW CAUSE HEARING

4/4/2018: ORDER TO SHOW CAUSE HEARING

SUMMONS

3/13/2018: SUMMONS

78 More Documents Available

 

Docket Entries

  • 07/09/2019
  • at 08:31 AM in Department 74; Final Status Conference - Held - Continued

    Read MoreRead Less
  • 06/25/2019
  • Order ([Proposed] Order Approving Stipulation to Extend Time to Report on Discovery Referee); Filed by Lapchih Fan (Plaintiff)

    Read MoreRead Less
  • 06/25/2019
  • Stipulation and Order ( to Extend Time to Report on Discovery Referee); Filed by Lapchih Fan (Plaintiff); Douglas Elliman Of California, Inc. (Defendant); James Jacobson (Defendant) et al.

    Read MoreRead Less
  • 06/12/2019
  • at 08:30 AM in Department 74; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Party

    Read MoreRead Less
  • 05/28/2019
  • at 08:30 AM in Department 74; Hearing on Motion to Compel (Motion to Compel Most Qualified Def to Comply with Notice of Deposition) - Not Held - Taken Off Calendar by Party

    Read MoreRead Less
  • 05/23/2019
  • Stipulation - No Order ( to Extend Time to Report on Discovery Referee); Filed by Lapchih Fan (Plaintiff)

    Read MoreRead Less
  • 05/23/2019
  • Order ([Proposed] Order Approving Stipulation to Extend Time to Report on Discovery Referee); Filed by Lapchih Fan (Plaintiff)

    Read MoreRead Less
  • 05/10/2019
  • Order ([Proposed] Order Approving Stipulation to Extend Tim to Report on Discovery Referee); Filed by Lapchih Fan (Plaintiff)

    Read MoreRead Less
  • 05/09/2019
  • Stipulation - No Order (Stipulation to Extend Time to Report on Discovery Referee); Filed by Lapchih Fan (Plaintiff)

    Read MoreRead Less
  • 05/08/2019
  • Answer; Filed by Douglas Elliman Of California, Inc. (Defendant); James Jacobson (Defendant); Colin Keenan (Defendant) et al.

    Read MoreRead Less
114 More Docket Entries
  • 04/23/2018
  • Partial Dismissal (w/o Prejudice); Filed by Lapchih Fan (Plaintiff)

    Read MoreRead Less
  • 04/12/2018
  • Partial Dismissal (w/o Prejudice); Filed by Lapchih Fan (Plaintiff)

    Read MoreRead Less
  • 04/12/2018
  • REQUEST FOR DISMISSAL

    Read MoreRead Less
  • 04/04/2018
  • Notice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 04/04/2018
  • OSC-Failure to File Proof of Serv; Filed by Clerk

    Read MoreRead Less
  • 04/04/2018
  • ORDER TO SHOW CAUSE HEARING

    Read MoreRead Less
  • 04/04/2018
  • NOTICE OF CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 03/13/2018
  • Complaint; Filed by Lapchih Fan (Plaintiff)

    Read MoreRead Less
  • 03/13/2018
  • SUMMONS

    Read MoreRead Less
  • 03/13/2018
  • COMPLARNT FOR: 1. BREACH OF CONTRACT ;ETC

    Read MoreRead Less

Tentative Rulings

Case Number: BC697957    Hearing Date: March 03, 2020    Dept: 74

BC697957 LAPCHIH FAN VS DOUGLAS ELLIMAN OF CALIFORNIA INC

Defendant Douglas Elliman of California’s Motion for Summary Adjudication

TENTATIVE RULING: Summary adjudication is denied as to issues 1 through 9 as there are triable issues of fact as to the amounts of time plaintiff spent performing exempt tasks as opposed to non-exempt tasks, for example translating at meetings instead of participating in discussion and decision-making at meeting, and whether tasks, such as completing sales reports, or making recommendations as to other employees, were done as exempt or non-exempt tasks, and the extent to which plaintiff has discretion and independence to make judgment, or whether there was a collaboration on issues with the ultimate discretion and judgment exercised by another after listening to all opinions, including plaintiff’s, and whether a real estate broker’s license and master’s degree were prerequisites for plaintiff’s job. Issue 10 is taken off calendar as moot.

Plaintiff’s objections to Defendant’s evidence and Defendant’s objections to Plaintiff’s evidence are overruled.

ISSUE 1: Plaintiffs third cause of action for failure to pay overtime fails as a matter of law because, irrespective of whether Plaintiff was or was not an independent contractor, Plaintiff was exempt from California Labor Code §§ 510 and 1194 pursuant to the "Executive Exemption" under IWC Wage Order No. 4-2001 and California Labor Code § 515(a). I

ISSUE 2: Plaintiffs third cause of action for failure to pay overtime fails as a matter of law because, irrespective of whether Plaintiff was or was not an independent contractor, Plaintiff was exempt from California Labor Code §§ 510 and 1194 pursuant to the "Professional Exemption" under IWC Wage Order No. 4-2001 and California Labor Code § 515(a).

ISSUE 3: Defendant's Tenth Affirmative Defense succeeds as a matter of law because Plaintiff meets the (a) "Executive Exemption" or (b) "Professional Exemption."

ISSUE 4: Plaintiffs fourth cause of action for failure to provide meal periods fails as a matter of law because, irrespective of whether Plaintiff was or was not an independent contractor, Plaintiff was exempt from California Labor Code § 226.7 pursuant to the "Executive Exemption" under IWC Wage Order No. 4-2001 and California Labor Code § 515(a).

ISSUE 5: Plaintiffs fourth cause of action for failure to provide meal periods fails as a matter of law because, irrespective of whether Plaintiff was or was not an independent contractor, Plaintiff was exempt from California Labor Code § 226.7 pursuant to the "Professional Exemption" under IWC Wage Order No. 4-2001 and California Labor Code § 515(a).

ISSUE 6: Defendant's Tenth Affirmative Defense succeeds as a matter of law because Plaintiff meets the (a) "Executive Exemption," or (b) "Professional Exemption."

ISSUE 7: Plaintiffs fifth cause of action for failure to provide rest periods fails as a matter of law because, irrespective of whether Plaintiff was or was not an independent contractor, Plaintiff was exempt from California Labor Code § 226.7 pursuant to the "Executive Exemption" under IWC Wage Order No. 4-2001 and California Labor Code § 515(a).

ISSUE 8: Plaintiffs fifth cause of action for failure to provide rest periods fails as a matter of law because, irrespective of whether Plaintiff was or was not an independent contractor, Plaintiff was exempt from California Labor Code § 226.7 pursuant to the "Professional Exemption" under IWC Wage Order No. 4-2001 and California Labor Code § 515(a).

ISSUE 9: Defendant's Tenth Affirmative Defense succeeds as a matter of law because Plaintiff meets the (a) "Executive Exemption," or (b) "Professional Exemption."

There are triable issues of fact as to the amounts of time plaintiff spent performing exempt tasks as opposed to non-exempt tasks, for example translating at meetings instead of participating in discussion and decision-making at meeting, and whether tasks, such as completing sales reports, or making recommendations as to other employees, were done as exempt or non-exempt tasks, and the extent to which plaintiff has discretion and independence to make judgment, or whether there was a collaboration on issues with the ultimate discretion and judgment exercised by another after listening to all opinions, including plaintiff’s.

Summary adjudication is denied.

ISSUE 10: Plaintiffs twelfth cause of action for penalties under the Private Attorney General's Act, fails as a matter of law because Plaintiff failed to provide proper notice of facts and theories to support a claim as to anyone other than himself, since all of the "aggrieved employees" are exempt from the California Labor Code because they are all properly classified as independent contractors pursuant to California Labor Code § 2750.3(d) and California Business & Professions Code § 10032(b).

The issue is taken off calendar as moot.

Case Number: BC697957    Hearing Date: November 04, 2019    Dept: 74

BC697957 LAPCHIH FAN VS DOUGLAS ELLIMAN OF CALIFORNIA INC ET AL

Defendant Douglas Elliman of California’s Motion for Protective Order

TENTATIVE RULING: The motion is DENIED. Defendant failed to carry its burden of proving through admissible evidence good cause for the order sought.

The interrogatories at issue address the classification of the employees, their time of employment and job duties, and the reasons for their classifications. To prevail on the PAGA claim, plaintiff must establish the classification of the employees. The declaration supporting the interrogatories is proper.

The issue of nearness to the trial date is moot, as the trial has been continued at defendant’s request. Defendant has ample time to respond without interfering with trial preparation.

“A party is permitted to use multiple methods of obtaining discovery and the fact that information was disclosed under one method is not, standing alone, a proper basis for refusing to provide discovery under another method.” (Irvington-Moore, Inc. v. Sup. Ct. (1993)14 Cal. App. 4th 733, 739, Bunnell v. Sup. Ct. (1967) 254 Cal. App. 2d 720, 723.)

There are only 35 interrogatories, and the subject is proper for discovery. If, as defendant maintains, there are only four employees at issue, the responses should not be burdensome. The motion is denied.

Case Number: BC697957    Hearing Date: October 25, 2019    Dept: 74

BC697957 LAPCHIH FAN VS DOUGLAS ELLIMAN OF CALIFORNIA INC ET AL

Defendant Douglas Elliman of California, Inc.’s Motion for Summary Adjudication

TENTATIVE RULING: Summary adjudication is denied as to issues 1 and 2 as adjudication of the issue would not wholly dispose of an entire cause of action. Summary adjudication is denied as to issue 3 as the contract language is ambiguous and defendant failed to meet its burden in submitted evidence in support of its interpretation. Summary adjudication is denied as to issue 4 as there is a triable issue of fact as to whether defendant was required to inform plaintiff that if he chose to disassociate the license himself it would enforce the reduction in plaintiff’s pending commissions.

Objections to Plaintiff’s Evidence

The objections are overruled.

Reply

Courts cannot consider moving parties’ new evidence filed for the first time after the opposition to a summary judgment or adjudication motion has been filed, without first considering opposing parties’ due-process rights, or allowing a continuance for a supplemental opposition. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1183.) Evidence submitted with the reply was not considered.

Issue 1. Plaintiff’s first cause of action for breach of contract, breach of the Metropolis Agreement, fails as a matter of law because defendant propertly reduced plaintiff’s additional commission by 50% because it is undisputed that plaintiff resigned and disassociated his license from defendant.

Legislative intent is that an issue shall be worded so as to dispose of an entire cause of action or defense (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249, or primary right (Lillianthal & Fowler v. Sup. Ct. (1993) 12 Cal.App.4th 1848, 1853).

Adjudication of this issue would not dispose of the entire cause of action. Summary adjudication is denied.

Issue 2: Plaintiff’s first cause of acton for breach of contract, breach of the Metropolis Agreement, fails as a matter of law because the Metropolis Agreement does not entitle plaintiff to an accounting of additional commissions.

Adjudication of this issue would not dispose of the entire cause of action. Summary adjudication is denied.

Issue 3. Plaintiff’s thirteenth cause of action for breach of fiduciary duty fails as a matter of law because the express language of section 12 of the Metropolis Agreement does not support plaintiff’s claim because it does not establish defendant owed a fiduciary duty to plaintiff.

There is a triable issue of fact as to whether section 12 provided that defendant owed a fiduciary duty to plaintiff, as the language is ambiguous. The first sentence states that they “each” acknowledge the fiduciary duty, which in ordinary language would mean that each party is acknowledging it has a duty.

“‘Where a word or a phrase used in a contract can reasonably be understood in more than one way, the court must admit and consider extrinsic evidence to determine what the parties actually intended the word or phrase to mean.’” (Steller v. Sears, Roebuck and Co. (2010) 189 Cal.App.4th 175, 183.) Where contract interpretation is an issue, and parol evidence is admissible and in conflict, summary judgment must be denied. (Wolf v. Sup. Ct. (2004) 114 Cal.App.4th 1343, 1359 n. 27; Fischer v. First Internat. Bank (2003) 109 Cal.App.4th 1433, 1443.)

Defendant failed to submit evidence establishing that it had no fiduciary duty to plaintiff. That only plaintiff’s fiduciary obligations are defined in the agreement raises a triable issue of fact.

Summary adjudication is denied.

Issue 4. Plaintiff’s thirteenth cause of action for breach of fiduciary duty fails as a matter of law because, assuming arguendo section 12 of the Metropolis Agreement establishes a fiduciary obligation on defendant, it did not breach its obligation to plaintiff because: (1) the Metropolis Agreement expressly provides that Greenland could demand plaintiff’s removal and (2) plaintiff was fully aware that section 3(b) of the Metropolis Agreement reduced pending commissions by 50% if he disassociated his license from defendant.

Plaintiff submitted evidence that he had a choice of defendant disassociating his license or disassociating it himself, and that defendant failed to inform him that if he disassociated it himself defendant would consider that to trigger section 5(b) of the Metropolis agreement and would reduce his pending commissions.

Summary adjudication is denied.