This case was last updated from Los Angeles County Superior Courts on 05/23/2019 at 10:09:39 (UTC).

LIEBA CHANIN ET AL VS RODEO REALTY INC ET AL

Case Summary

On 03/01/2017 LIEBA CHANIN filed a Contract - Other Contract lawsuit against RODEO REALTY INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2405

  • Filing Date:

    03/01/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiffs

CHANIN SHMUEL

CHANIN LIEBA

Defendants

RODEO REALTY INC

RODEO REALTY

RODEO REALTY FINE ESTATES

AMERICAN CONTRACTORS INDEMNITY COMPANY

HEBNER GREG

GIRONDA JACK

COMMUNITY REBUILD PARTNERS

DUKE DEVELOPMENT INC.

HIRSCH MICHELLE

PREFERRED HOME INSPECTIONS LLC

COMMUNITY REBUILD ASSET HOLDINGS

SURETEC INSURANCE COMPANY

LABRANCHE EMMANUEL

Attorney/Law Firm Details

Plaintiff Attorney

ZELIG STEVEN

Defendant Attorneys

KIM AMBER NICOLE

LEFF ANDREW LINCOLN

COHEN BARUCH C

MADARIAGA DAVID BERRY

GASCOU CHRISTIAN JEAN ESQ.

GROSFELD ROBERT

 

Court Documents

DEFENDANTS' BRIEFING RE ARBITRATION STATUS

9/12/2018: DEFENDANTS' BRIEFING RE ARBITRATION STATUS

NOTICE OF PENDENCY OF ACTION

9/13/2018: NOTICE OF PENDENCY OF ACTION

NOTICE OF WITHDRAWAL OF NOTICE OF PENDENCY OF ACTION

9/13/2018: NOTICE OF WITHDRAWAL OF NOTICE OF PENDENCY OF ACTION

Ex Parte Application

3/1/2019: Ex Parte Application

Minute Order

3/4/2019: Minute Order

Opposition

3/4/2019: Opposition

Opposition

3/4/2019: Opposition

Motion re:

3/14/2019: Motion re:

Declaration

4/18/2019: Declaration

Opposition

4/18/2019: Opposition

Declaration

4/24/2019: Declaration

Opposition

4/24/2019: Opposition

Declaration

4/25/2019: Declaration

Memorandum of Points & Authorities

4/25/2019: Memorandum of Points & Authorities

Minute Order

5/1/2019: Minute Order

Reply

5/3/2019: Reply

Notice of Ruling

5/7/2019: Notice of Ruling

Reply

5/8/2019: Reply

124 More Documents Available

 

Docket Entries

  • 05/20/2019
  • DocketOpposition (Supplemental Opposition to Petition for Order Confirming Arbitrator's Order Granting Preliminary Injunction); Filed by Lieba Chanin (Plaintiff); Shmuel Chanin (Plaintiff); Esther Chanin (Plaintiff) et al.

    [+] Read More [-] Read Less
  • 05/10/2019
  • Docketat 09:30 AM in Department 58; Hearing on Motion for Order (CONFIRMING ARBITRATOR'S ORDER GRANTING PRELIMINARY INJUNCTION FOR PLAINTIFF/CROSS-DEFENDANT LIEBA CHANIN TO DEPOSIT PAST DUE AND CURRENT RENT INTO ESCROW ACCOUNT PENDING ENTRY OF ARBITRATOR'S FINAL ORDER) - Held - Continued

    [+] Read More [-] Read Less
  • 05/10/2019
  • DocketNotice (DEFENDANTS'/CROSS-PLAINTIFFS' NOTICE OF ADVANCEMENT OF: (1) ALL PURPOSE STATUS CONFERENCE & (2) POST-ARBITRATION STATUS CONFERENCE); Filed by Community Rebuild Partners (Defendant); Community Rebuild Asset Holdings (Defendant); Greg Hebner (Defendant)

    [+] Read More [-] Read Less
  • 05/10/2019
  • DocketDeclaration ( of Andrew Leff in Support of Rodeos Motion for Joint Sanctions); Filed by Rodeo Realty, Inc (Defendant); Michelle Hirsch (Defendant)

    [+] Read More [-] Read Less
  • 05/10/2019
  • DocketMinute Order ( (Hearing on Defendants Community Rebuild Partners, Community R...)); Filed by Clerk

    [+] Read More [-] Read Less
  • 05/10/2019
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore (Veronica Rodriguez, CSR #12215); Filed by Lieba Chanin (Plaintiff); Shmuel Chanin (Plaintiff); Esther Chanin (Plaintiff) et al.

    [+] Read More [-] Read Less
  • 05/10/2019
  • DocketNotice of Motion; Filed by Rodeo Realty, Inc (Defendant); Michelle Hirsch (Defendant)

    [+] Read More [-] Read Less
  • 05/10/2019
  • DocketNotice (of Verified Petition and Verified Petition for Order); Filed by Community Rebuild Partners (Defendant)

    [+] Read More [-] Read Less
  • 05/08/2019
  • DocketReply (SUR-REPLY IN OPPOSITION TO PETITION CONFIRMING ARBITRATION ORDER GRANTING PRELIMINARY MANDATORY INJUNCTION); Filed by Lieba Chanin (Plaintiff)

    [+] Read More [-] Read Less
  • 05/07/2019
  • DocketNotice of Ruling; Filed by Rodeo Realty, Inc (Defendant); Michelle Hirsch (Defendant)

    [+] Read More [-] Read Less
191 More Docket Entries
  • 03/16/2017
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

    [+] Read More [-] Read Less
  • 03/14/2017
  • DocketNOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

    [+] Read More [-] Read Less
  • 03/09/2017
  • DocketApplication ; Filed by Plaintiff/Petitioner

    [+] Read More [-] Read Less
  • 03/09/2017
  • DocketApplication ; Filed by Plaintiff/Petitioner

    [+] Read More [-] Read Less
  • 03/09/2017
  • DocketApplication ; Filed by Plaintiff/Petitioner

    [+] Read More [-] Read Less
  • 03/06/2017
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM - CIVIL EX PARTE

    [+] Read More [-] Read Less
  • 03/06/2017
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM - CIVIL EX PARTE

    [+] Read More [-] Read Less
  • 03/06/2017
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM - CIVIL EX PARTE

    [+] Read More [-] Read Less
  • 03/01/2017
  • DocketComplaint; Filed by Lieba Chanin (Plaintiff); Shmuel Chanin (Plaintiff)

    [+] Read More [-] Read Less
  • 03/01/2017
  • DocketCOMPLAINT FOR COMPENSATORY, TREBLE AND PUNITIVE DAMAGES, SPECIFIC PERFORMANCE, TO QUIET TITLE, AND OTHER RELIEF; AND REQUEST FOR TRIAL BY JURY

    [+] Read More [-] Read Less

Tentative Rulings

Case Number: ****2405 Hearing Date: November 10, 2022 Dept: 58

Judge Bruce G. Iwasaki

Department 58


Hearing Date: November 10, 2022

Case Name: Lieba Chanin, et al. v. Rodeo Realty. et al.

Case No.: ****2405

Motion: Motion to Vacate Judgment

Moving Party: Plaintiff/Cross-defendants (minors) Esther Chanin, Yita Chanin, and Freeda Chanin

Responding Party: Defendant/Cross-complainant Community Rebuild Partners, Community Rebuild Asset Holdings, Greg Hebner

Tentative Ruling: The motion to vacate judgment is denied.

Background

Community Rebuild Partners and Community Rebuild Asset Holdings (Community or Cross-complainant) filed an unlawful detainer action against Sam and Lieba Chanin (Lieba) in Case No. LC105136 on January 23, 2017. In response, the Chanins sued in this Court on March 1, 2017, alleging multiple causes of action including fraud, negligence, trespass, and invasion of privacy. The parties were ordered to arbitration, where Community filed its Cross-complaint for ejectment and rental damages.

After the arbitrator remanded the case, this Court dismissed the Chanins’ Complaint with prejudice as a terminating sanction. However, the case remained open because of Community’s Cross-complaint.

Community then moved for summary judgment on its Cross-complaint for rental damages. The Chanins did not oppose, and the motion was granted. After the hearing on the motion, but before judgment was entered, Esther Chanin, Yita Chanin, and Freeda Chanin (collectively, minors) objected on the basis that the Cross-complaint did not assert any causes of action against them. The Court overruled the objection and entered judgment on September 2, 2022. Twelve days later, Community filed a “Notice of Entry of Judgment.”

On September 29, 2022, the minors filed a “Notice of Intent to Set Aside and Vacate Judgment, per CCP Section 663.” On October 13, 2022, they filed a “Notice of Off Calendaring and Withdrawal of: 1. Notice of Intent to Move for New Trial per CCP Sections 656 and 657; 2. Notice of Intent to Set Aside and Vacate Judgment per CCP Sections 662, 663 and 663a.”

On October 17, 2022, the minors then filed a “Notice of and Motion to Vacate Judgment, per CCP Section 1710.30 entered against Esther Chanin, a minor; Yita Chanin, a minor; and Freed Chanin, a minor.” They argue that the minors’ names were not mentioned in Community’s Cross-complaint nor in the motion for summary judgment. Community opposes on procedural grounds. The minors replied, reiterating its motion is proper.

Discussion

Code of Civil Procedure section 663 states that “A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: [ ] 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. [ ] 2. A judgment or decree not consistent with or not supported by the special verdict.”

Procedurally, a motion under section 663 is governed under section 663a. That section requires that a party seeking to file such a motion “shall file with the clerk and serve upon the adverse party a notice of his or her intention, designating the grounds upon which the motion will be made, and specifying the particulars in which the legal basis for the decision is not consistent with or supported by the facts, or in which the judgment or decree is not consistent with the special verdict.” The notice shall be filed either: “(1) After the decision is rendered and before the entry of judgment. [ ] (2) Within 15 days of the date of mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest.” (Code Civ. Proc., 663a, subds. (a)(1)(2).)

Here, the minors’ motion is procedurally defective. The minors withdrew the notice of intention on October 13, 2022; therefore, they have not complied with Code of Civil Procedure section 663a, subdivision (a) because they failed to file a notice of intent as a prerequisite to the instant motion to vacate the judgment.

The notice of intent was also filed late. The clerk of the court issued a certificate of mailing on September 2, 2022; thus, the minors must have filed their notice of intent by September 17. Instead, they filed on September 29. Community served the Notice of Entry of Judgment on September 14 and so the minors’ notice of intent may be timely when evaluated under that date; however, the issue is moot because the minors ultimately withdrew their notice of intent. Any notice they file now would be untimely. (Conservatorship of Townsend (2015) 231 Cal.App.4th 691, 702 [time to file a motion to vacate under section 663 is jurisdictional].)

Finally, the motion relies on inapposite statutes for the motion to vacate. The minors cite to Code of Civil Procedure section 1710.30 that the “judgment debtor has 30 days within which to make a motion to vacate the judgment.” However, this section is embedded within Part 3 of the Code of Civil Procedure for “Special Proceedings of a Civil Nature” and under Title 11 for “Money Judgments of Other Jurisdictions.” More specifically, the Chapter in which that statute is based is for “Sister State Money–Judgments.” This section has no applicability when there is no allegation or evidence that the creditor is attempting to enforce an out-of-state judgment.

The minors cite to no other appropriate statute for their motion. They briefly cite to Code of Civil Procedure section 473, but do not explain how that provision permits the relief they seek, particularly when they failed to oppose the motion for summary judgment. Because the minors fail to provide a proper basis upon which the Court may vacate or amend the Judgment, the motion is accordingly denied.

Community’s request for sanctions is denied for failure to comply with the procedural requirements of Code of Civil Procedure section 128.5, including filing a separate motion and compliance with the “safe harbor” requirements. (Code Civ. Proc., 128.5, subds. (f)(1)(A), (B).)



Case Number: ****2405 Hearing Date: July 26, 2022 Dept: 58

Judge Bruce G. Iwasaki

Department 58


Hearing Date: July 26, 2022

Case Name: Lieba Chanin, et al. v. Rodeo Realty. et al.

Case No.: ****2405

Motion: Motion for Summary Judgment/Adjudication

Moving Party: Defendant/Cross-complainant Community Rebuild Partners; Community Rebuild Asset Holdings; and Greg Hebner

Responding Party: Unopposed / Plaintiff/Cross-defendant Lieba Chanin

Tentative Ruling: The Motion for Summary Judgment is granted, and Cross-complainant Community is awarded possession of the Property and $221,200.39 in damages.

The Court sets an Order to Show Cause re: Entry of Judgment for at 8:30 AM in Department 58.

The owners of a property in Sherman Oaks, California sued the tenants for unlawful detainer in a different department of this court. The tenants then sued the owners in this department for contractual fraud. This Court ordered the parties to arbitration, wherein the owners filed a cross-complaint against the tenants for ejectment. In October 2021, this Court dismissed the tenants’ complaint due to their litigation misconduct. The property owners now seek summary judgment or adjudication on its cross-complaint as to the unpaid rent owed by the tenants.

Background

The precursor to this case began when Community Rebuild Partners and Community Rebuild Asset Holdings (Community) initially filed an unlawful detainer action against Sam and Lieba Chanin (Lieba) in Case No. LC105136 on January 23, 2017. In response, the Chanins sued in this Court on March 1, 2017, alleging twenty causes of action, which included fraud, negligence, breach of fiduciary duty, trespass, and invasion of privacy.

The basis for the lawsuit centers on the “Residential Purchase Agreement,” which the parties entered into on May 18, 2016, and in which the Chanins agreed to purchase the Property. As part of the agreement, the Chanins would first lease the Property under an “Interim Occupancy Agreement” pending the close of escrow, six months later in December 2016. The Chanins failed to pay the purchase price but continued living on the Property.

After the Chanins filed suit in this Department, this Court ordered all parties to arbitration. Community filed a Cross-complaint in the arbitration on November 30, 2017. In August 2018, the Arbitrator granted a preliminary injunction that ordered the Chanins to deposit into escrow the amount equal to the reasonable rental value (determined to be $7,000.00 per month) from January 1, 2017, to the present. This Court confirmed that Order on June 20, 2019, and the Chanins made incremental payments of $167,299.61.

On September 24, 2019, the Court in the unlawful detainer action granted summary judgment in favor of Community, finding it entitled to possession of the Property.

On October 28, 2021, this Court dismissed the Chanins’ Complaint with prejudice as a terminating sanction. However, the case remained open because of Community’s Cross-complaint.

Community now moves for summary judgment or adjudication as to rental damages on its Cross-complaint filed in arbitration against Defendant Lieba for the ejectment cause of action. Community attached the Cross-Complaint as part of a “Notice of Ruling” on March 1, 2022. It contends that all causes of action have already been ruled on and the only remaining issue is damages, which is now certain and ascertainable. The Chanins failed to submit any opposition to the motion.

Community requests that the Court take judicial notice of three documents. The request is granted as to the two court documents: an unlawful detainer judgment in Case No. LC105136, and this Court’s Order Confirming Arbitrator’s Order Granting Preliminary Injunction. (Evid. Code 452, subd. (d).) The request is denied as to the arbitrator’s ruling.

Legal Standard

“A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., 437c, subd. (c).) The moving party has the initial burden to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc., 437c, subd. (p)(2).) Here, the Chanins submitted no evidence raising an issue of fact.

Discussion

In the unlawful detainer judgement, the parties “stipulated that the issue of damages is reserved for determination in the pending civil action, without prejudice to either parties’ rights with respect to such damages and/or offsets.” (Cohen Decl., 9, Ex. 11, p. 7.)

Plaintiffs move for summary judgment of rental damages on its Cross-complaint, which alleged causes of action for ejectment and injunctive relief.

In its injunctive relief claim, Community requested that the Chanins “post the past due and accruing monthly rent into an escrow account.” Because Community now seeks a judgment on the total amount of rent owed, this claim is moot.

Community also acknowledged that the possessory aspect of the ejectment claim is moot because the Chanins have abandoned the Property and the unlawful detainer judgment awarded it possession. (Motion, p. 5:7-10.) However, the Cross-complaint pled for unpaid rental damages under the ejectment claim for $18,000.00 per month. (Notice of Ruling, Ex. 1, 1.) Therefore, the Court evaluates the motion under the ejectment cause of action.

Ejectment cause of action

A landlord who seeks to remove a tenant may bring the common law action of ejectment. The claim requires plaintiff’s allegations of “ownership disclosing a right to possession, the defendant’s possession and the withholding thereof from the plaintiff.” (Baugh v. Consumers Associates, Limited (1966) 241 Cal.App.2d 672, 675 superseded by statute on other grounds as stated in WDT-Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526.) The complaint may also seek damages for value of rents and profits. (Nathan v. Dierssen (1913) 164 Cal. 607, 611; McCaffrey v. Wiley (1951) 103 Cal.App.2d 621, 623.)

Here, the Chanins had legal possession of the Property up until December 2016, when the lease expired under the Interim Occupancy Agreement. (Cohen Decl., at 7, Ex. 2.) Community was then entitled to possession pursuant to the unlawful detainer judgment. (Id. at 9, Ex. 11.)

Community also provides evidence that Defendant Lieba had possession of the Property between January 1, 2017, and August 15, 2021. (Cohen Decl., 12(a), Ex. 3, p. 53:8-11; Exs. 10, 14.) The January 1, 2017 date is supported by the Arbitrator’s finding in the Preliminary Injunction requiring the Chanins to deposit past due rent into an escrow account. (Cohen Dec., 15, Ex. 8, p. 22:9-10.) The Chanins’ counsel confirmed via e-mail that his clients left the Property on August 15, 2021. (Cohen Decl., Exs. 10, 14.) Plaintiff Chanin does not dispute the authenticity of the e-mails, nor has she filed any opposition.

A cross-complainant must also establish that the amount of damages are free from factual disputes to summarily decide the cause of action in its favor. (See Code Civ. Proc., 437c, subd. (p)(1); Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1106, 1110; Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 243 [“summary judgment or adjudication improper where amount of damages raises factual issue”].)

The Arbitrator made findings in the Preliminary Injunction that $7,000.00 per month is the reasonable rental value of the Property, which was admitted by the Chanins. (Cohen Dec., 15, Ex. 8, p. 22:9-10; Ex. 5, Shmuel Chanin Depo., at pp. 62:14 to 63:21, Lieba Chanin Depo., at pp. 25:18 to 27:15; Ex. 13.) Thus, the total amount of damages is $7,000.00 multiplied by 55.5 months, or $388,500.00. (Ibid.) Community further submits the declaration of its counsel, Baruch Cohen, who averred that the Chanins made incremental payments totaling $167,299.61 between August 27, 2019, through July 5, 2021. (Cohen Decl., 17.) Therefore, the remaining outstanding balance is $221,200.39.

Accordingly, the undisputed facts show that Community is the owner of the Property and the Chanins were holdover tenants after January 1, 2017, when the Interim Occupancy Agreement expired. (See generally Statement of Undisputed Material Facts, 3-8.)

Community has met its initial burden for damages under the ejectment claim and the burden shifts to Plaintiff Lieba Chanin. Because she has failed to submit any opposition, she has failed to meet that burden despite receiving notice and previously filing an Answer to the Cross-complaint in the Arbitration. (Notice of Ruling, Ex. 2.)

The Court grants summary judgment in favor of Community for possession of the Property and $221,200.39 for holdover damages between January 1, 2017, and August 15, 2021.

The Court sets an Order to Show Cause re: Entry of Judgment for at 8:30 AM in Department 58.



b'

Case Number: ****2405 Hearing Date: October 28, 2021 Dept: 58

Judge John P. Doyle

Department 58


Hearing Date: October 28, 2021

Case Name: Chanin, et al v. Rodeo Realty, Inc., et al.

Case No.: ****2405

Matter: (1) Motion for Attorneys’ Fees and Costs

(2) Motion to Tax Costs

(3) OSC Re: Terminating Sanctions

Moving Party: (1) Defendants Community Rebuild Partners, Community Rebuild Asset

Holdings, and Greg Hebner

(2) Plaintiffs Lieba Chanin, Sam Chanin, Esther Chanin, Yita Chanin, and

Freeda Chanin

Responding Party: (1) Plaintiffs Lieba Chanin, Sam Chanin, Esther Chanin, Yita Chanin, and

Freeda Chanin

(2) Unopposed


Tentative Ruling: The Motion for Attorneys’ Fees and Costs is denied as to fees. The

Court awards $388 in costs.

The Motion to Tax Costs is granted.

The Court dismisses Plaintiffs’ Complaint.


  1. Motion for Attorneys’ Fees and Costs

Because they were the prevailing parties on appeal, Defendants Community Rebuild Partners, Community Rebuild Asset Holdings, and Greg Hebner move for $27,375.00 in attorneys’ fees and $4,410.48 in costs. Defendants’ request for fees is premised on the purchase and interim lease agreements for the subject property, which both contain an attorneys’ fee provision. (Civ. Code ; 1717.)

The agreements at issue provide for fees to the prevailing party except that “The parties agree to mediate any dispute or claim arising between them out of this agreement, or any resulting transaction, before resorting to arbitration or court action through (ADR provider)… If, for any dispute or claim to which this paragraph applies, any party (i) commences an action without first attempting to resolve the matter through mediation, or (ii) before commencement of an action refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action.”

Plaintiffs argue that fees are not proper because Plaintiffs offered to mediate before filing suit, but Defendants did not agree.

Defendants do not dispute that they did not agree to mediate, but instead argue, “However, Community did not initiate this lawsuit - Chanin did. There is no requirement that a wrongfully sued defendant - first attempt mediation prior to defending an action. Therefore, a straightforward interpretation of the two contracts grants reasonable fees to the attorney who prevails in a action (even if they did not first attempt mediation).”

This lacks merit. There is no contractual language providing that “wrongfully sued defendants[s]” need not mediate. To the contrary, the contracts are clear that there will be no fees for a party that “before commencement of an action refuses to mediate after a request has been made . . . .”

Because Defendants failed to mediate, they are not entitled to fees under contract. The Motion for attorneys’ fees is denied. The objections are overruled.

As to the request for costs, the court will award $388 in costs as the remainder of Defendants’ costs are stricken pursuant to Plaintiffs’ Motion to Tax Costs. (See infra.)

  1. Motion to Tax Costs

On July 6, 2021, Defendants Community Rebuild Partners, Community Rebuild Asset Holdings, and Greg Hebner filed a memorandum of costs in the amount of $4,798.48.

Plaintiffs seek to strike $4,410.48 in “other costs” listed within Defendants’ memorandum of costs.

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion.” (Ladas v. Cal. State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)

Plaintiffs have properly objected to the costs at issue by providing that there is no description for such costs other than that they are “comprised of charges of court filings and motions. Community’s costs were necessary to defend against Chanins baseless appeal.”

Because Defendants failed to file an opposition, they have not carried their burden.

The Court strikes $4,410.48 in costs. The Motion to Tax Costs is granted.

  1. OSC Re: Terminating Sanctions

On August 26, 2021, the Court ruled as follows,

On August 11, 2021, the parties were ordered to return on October 6, 2021, at 10:30 a.m. for a hearing on the pending attorneys’ fees motion, the pending motion to tax costs, and for an Order to Show Cause re: Terminating Sanctions as against the plaintiff Chanins for failure to comply with the Court’s Order dated June 20, 2019. The October 6, 2021 Order to Show Cause will also relate to the plaintiff Chanins’ alleged failure to abide by the Court’s Arbitration Order by failing to pay the $203,000 which the above-referenced June 20, 2019 Order required be paid into an escrow account as more fully set forth in defendants’ and cross-complainants’ (the “Community” parties) August 4, 2021 renewed request to set for hearing the proposed Order to Show Cause re: Contempt and Sanctions. This failure to pay, it is alleged, essentially comprises a refusal to arbitrate, as a willingness to arbitrate must be accompanied by abiding by the arbitration rules and the Orders of the Arbitrator. The subject Order to Show Cause will also be predicated in part on the Court of Appeal’s June 25, 2021 Remittitur in which the Disentitlement Doctrine was invoked as one basis for the dismissal of the plaintiff Chanins’ appeal.

The previously set October 6, 2021 hearing on the subject Order to Show Cause is hereby continued on the Court’s own motion to October 28, 2021, at 10:30 a.m. The Chanin parties’ opposition memorandum, 25 pages or less, shall be e-filed and e-served before the close of business on September 23, 2021. The Community parties’ response to the subject opposition memorandum, also 25 pages or less, shall be e-filed and e-served before the close of business on October 14, 2021.

Plaintiffs have submitted an opposition, arguing (1) the Court has only “vestigial jurisdiction” such that the instant issue should be before an arbitrator; (2) the Court cannot terminate this action as to Plaintiffs Sam Chanin, Esther Chanin, Yita Chanin, and Freeda Chanin who were not parties to the injunction/confirmation order; (3) because the injunction/confirmation order only benefitted Defendants Community Rebuild Partners, Community Rebuild Asset Holdings, and Greg Hebner, the Court cannot terminate Plaintiffs’ claims against the other Defendants; (4) because the injunction was issued without a bond, Plaintiffs cannot be held in contempt; (5) Defendants dismissed their only cross-claim such that the “injunction is not tied to a viable cause of action [and] the injunction [] becomes inoperative as a matter of law”; and (6) disentitlement in the appellate proceedings does not negate any of the foregoing.

“[A] trial court may, under certain circumstances, invoke its limited, inherent discretionary power to dismiss claims with prejudice. (See 6 Witkin, Cal.Procedure (3d ed. 1985) Proceedings Without Trial, ; 212, pp. 517–518.)” (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915.)

“[A] court has inherent power to dismiss an action for misconduct that violates established procedures or a court order. . . . the Lyons majority acknowledges the existence of inherent power to dismiss an action for misconduct violating established procedures or a court order, but limits its exercise to \'extreme circumstances\' of deliberate misconduct when no lesser sanction would be effective to cure the harm. (See 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, ; 252, pp. 670–671 [citing Lyons, supra, 42 Cal.3d at p. 917, 231 Cal.Rptr. 738, 727 P.2d 1019, and observing that the trial court\'s inherent power to dismiss is limited to “extreme circumstances” where “the court\'s authority ‘cannot possibly be otherwise vindicated’ ”].)" (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 760.)

Here, the misconduct is Plaintiffs’ failure to obey the Court’s June 20, 2019, Order which has caused significant delay in this action that has now been pending for over 1,700 days. After refusing to comply with the arbitrator\'s order, plaintiff opposed the motion to confirm it and then refused for over two years after it was confirmed to make any attempt to comply with that presumptively valid order.” (Chanin v. Cmty. Rebuild Partners (Cal. Ct. App. Apr. 23, 2021) 2021 WL 1588935, at *5 .) As stated before, Plaintiffs’ conduct was tantamount to refusing to arbitrate.

The Court also notes that this matter has been in limbo with Plaintiffs failing to take affirmative action to reinitiate arbitration. This is not surprising, as, when withdrawing as arbitrator, the Hon. Hilberman stated, “[t]he level of vitriol between counsel for the Chanin parties and counsel for the Community/Hebner parties, including myriad allegations of dishonesty and impropriety, exceeds anything [he has] experienced in 46 years, either as an attorney, judge or arbitrator.” (Hilberman Letter dated May 20, 2019.)

Plaintiffs’ argument as to vestigial jurisdiction lacks merit because the Court has inherent authority to enforce its orders after entering them. To the same extent the Court could confirm the interim arbitration award, the Court can enforce it. (See, e.g., Pac. Reinsurance Mgmt. Corp. v. Ohio Reinsurance Corp. (9th Cir. 1991) 935 F.2d 1019, 1022-1023 [“a temporary equitable award has an element of finality sufficient to be confirmed and enforced under the FAA. The reasoning of these courts is not inconsistent, as might first appear, with the policy favoring arbitration at the expense of the courts when it is chosen by the parties. Given the potential importance of temporary equitable awards in making the arbitration proceedings meaningful, court enforcement of them, when appropriate, is not an ‘undue intrusion upon the arbitral process,’ Southern Seas, 606 F.Supp. at 694, but is essential to preserve the integrity of that process.”].) To state otherwise would mean that the Court’s ruling was essentially an idle act, and “[t]he law does not require idle acts.” (People v. Haskins (1985) 171 Cal.App. 3d 344, 350.)

Plaintiffs also argue that the claims of Plaintiffs Sam Chanin, Esther Chanin, Yita Chanin, and Freeda Chanin cannot be terminated because these Plaintiffs were not parties to the subject order. However, the Court believes there is a unity of interest between the Plaintiffs.

Further, Plaintiffs’ argument that their claims cannot be terminated with respect to any Defendants other than Defendants Community Rebuild Partners, Community Rebuild Asset Holdings, and Greg Hebner lacks merit. True, the other Defendants did not benefit from the subject order. But, Plaintiffs’ refusal to comply with such order has delayed this matter, causing prejudice to all.

Next, this Court already ruled that Plaintiffs waived their bond argument when the Court entered the subject confirmation order.

Finally, the argument that in August 2019 Defendants dismissed their cross-claim tied to the injunctive relief at issue is not dispositive. Rather, the Court must address Plaintiffs’ prior disobedience of a Court order which prejudiced Defendants.

In sum, the Court finds Plaintiffs’ disobedience of its order to be egregious, requiring dismissal. Plaintiffs’ Complaint is dismissed with prejudice.

'


Case Number: ****2405    Hearing Date: December 21, 2020    Dept: 58

Judge John P. Doyle

Department 58


Hearing Date: December 21, 2020

Case Name: Chanin, et al. v. Rodeo Realty, Inc., et al.

Case No.: ****2405

Matter: Motion to Nullify Arbitration Order

Moving Party: Plaintiffs Lieba Chanin, Sam Chanin, Esther Chanin, Yita Chanin, and

Freeda Chanin

Responding Party: Defendants Community Rebuild Partners, Community Rebuild Asset

Holdings, Greg Hebner, Michelle Hirsch and Rodeo Realty Inc., joined by Duke Development, Inc. and Emmanual Labranche


Tentative Ruling: The Motion is denied.


On August 25, 2017, the Court granted motions to compel arbitration filed by (1) Defendants Community Rebuild Partners, Community Rebuild Asset Holdings, and Greg Hebner (“Community Defendants”), and (2) Defendants Jack Gironda and Preferred Home Inspection Service, LLC (“Preferred Defendants”). The action was stayed as to the remaining Defendants, specifically, Defendants Michelle Hirsch, Rodeo Realty Inc., Duke Development, Inc., and Emmanual Labranche.

Plaintiffs Lieba Chanin, Sam Chanin, Esther Chanin, Yita Chanin, and Freeda Chanin seek to nullify the Court’s arbitration order and commence litigation in this Court. Plaintiffs argue that arbitration should be precluded under Code Civ. Proc. ; 1281.2(c) when,

A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. . . .

If the court determines that a party to the arbitration is also a party to litigation in a pending court action or special proceeding with a third party as set forth under subdivision (c), the court (1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding.

Plaintiffs provide that because Defendants Michelle Hirsch, Rodeo Realty Inc., Duke Development, Inc., and Emmanual Labranche are agents of Community Defendants, “if this court continues to insist that the Plaintiffs pursue their claims on two ‘fronts’ (this lawsuit and a separate arbitration), there is a profound possibility, and in fact a probability of conflicting rulings . . . .”

Further, Plaintiffs provide that they learned the following through discovery, which also supports the possibility of inconsistent rulings:

• That LaBranche/Duke was not only a contractor who constructed the subject property, but was the partner of Hebner/Community for the “renovation” and sale of the Subject Property.

• That Hirsch/Rodeo, who represented the sellers (Hebner/Community) and the buyer (Lieba Chanin) in the subject transactions, also participated in construction and design issues and decisions for the renovation of the Subject Property. (Decl. Zelig at paragraph 2.)

Plaintiffs also note the following changed circumstances: (1) Preferred Defendants have settled this matter with Plaintiffs; (2) counsel for Community Defendants admitted during arbitration that there is a risk of inconsistent rulings if this matter is both litigated and arbitrated between the different Defendants; (3) Community Defendants pursued an unlawful detainer action; and (4) “Community defendants refused to participate in the proceeding before Judge Steele.”

Defendants argue that (1) the instant Motion is an untimely motion for reconsideration and (2) the Motion was only brought because Plaintiffs’ case was “torpedoed” after a motion for judgment on the pleadings was granted during arbitration.

The Court agrees that the Motion is an untimely motion for reconsideration. The Court considered and rejected Plaintiffs’ argument based on Code Civ. Proc. ; 1281.2(c) in 2017 when ruling on motions to compel arbitration. This Motion was not brought within ten days. (Code Civ. Proc. ; 1008.)

Further, it is not apparent how Community Defendants’ subjective beliefs at some point during the arbitration proceedings should alter the Court’s ruling, particularly as they have now submitted an opposition to the instant Motion.

Additionally, it is not apparent that there is some unilateral failure by the Community Defendants to participate in arbitration before Judge Steele. Instead, it appears neither party has tendered the necessary arbitration fees. (Community Defendants’ Opposition at p. 5 [“Community contacted Judge Steele and learned that Chanin never participated and never paid Judge Steele’s fees.”]; Reply at p. 4 [“[P]lease find attached to the declaration of Zelig an email from Signature to the effect that no party paid to commence the arbitration.”].)

Finally, to the extent that Plaintiffs contend that Defendants Michelle Hirsch, Rodeo Realty Inc., Duke Development, Inc., and Emmanual Labranche are agents of Community Defendants, it is not apparent how they are “third part[ies]” within the meaning of Code Civ. Proc. ; 1281.2(c). Code Civ. Proc. ; 1281.2(c) “does not apply when all defendants, including a nonsignatory to the arbitration agreement, have the right to enforce the arbitration provision against a signatory plaintiff.” (Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399, 1405.) Indeed, the agent of a signatory may compel arbitration. (See, e.g., Dryer v. Los Angeles Rams (1984) 40 Cal.3d 406, 418.)

In sum, the Motion is denied.



related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where DUKE DEVELOPMENT INC. is a litigant

Latest cases where COMMUNITY REBUILD ASSET HOLDINGS, LLC is a litigant

Latest cases where COMMUNITY REBUILD PARTNERS LLC is a litigant