This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:54:41 (UTC).

NIGEL HUDSON VS JOHN ELY BACHSIAN ET AL

Case Summary

On 04/26/2017 NIGEL HUDSON filed a Contract - Other Contract lawsuit against JOHN ELY BACHSIAN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GAIL FEUER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9102

  • Filing Date:

    04/26/2017

  • 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 Judge

GAIL FEUER

 

Party Details

Plaintiff and Petitioner

HUDSON NIGEL

Defendants and Respondents

UNIVERSAL GROUP INC

GLOBAL GUNITE AND SHOTCRET

BACHSIAN JOHN ELY

UNIVERSAL CONSTRUCTION GROUP INC

GLOBAL PREMIER INSURANCE SERVICES

BACHSIAN JOHN

DOES 1 THROUGH 50

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

HOROWITZ MARTIN L. ESQ.

HORWITZ MARTIN L.

Defendant and Respondent Attorneys

GORDON GREGORY H. ESQ.

FREDERICK J. ALAN ESQ.

FREDERICK J. ALAN

GORDON GREGORY H.

JENNINGS MAR J.

LYNCH ROBERT J.

LAGMAN-LEGASPI CATHERINE

 

Court Documents

Trial Brief

7/2/2019: Trial Brief

Motion in Limine

7/3/2019: Motion in Limine

Jury Instructions

7/8/2019: Jury Instructions

Minute Order

7/11/2019: Minute Order

Minute Order

5/10/2018: Minute Order

Motion in Limine

10/15/2018: Motion in Limine

Special Verdict

10/19/2018: Special Verdict

Opposition

10/24/2018: Opposition

Opposition

10/24/2018: Opposition

Reply

10/29/2018: Reply

Reply

11/7/2018: Reply

Minute Order

11/8/2018: Minute Order

Notice

5/23/2019: Notice

SUMMONS

4/26/2017: SUMMONS

PROOF OF SERVICE OF SUMMONS

5/15/2017: PROOF OF SERVICE OF SUMMONS

GLOBAL PREMIER INSURANCE SERVICES' NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

7/17/2017: GLOBAL PREMIER INSURANCE SERVICES' NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

DECLARATION OF PAUL J. WHITEHEAD IN SUPPORT OF GLOBAL PREMIER INSURANCE SERVICES DEMURRER TO COMPLAINT

7/17/2017: DECLARATION OF PAUL J. WHITEHEAD IN SUPPORT OF GLOBAL PREMIER INSURANCE SERVICES DEMURRER TO COMPLAINT

Minute Order

8/28/2017: Minute Order

138 More Documents Available

 

Docket Entries

  • 10/16/2019
  • Hearingat 09:30 AM in Department 78 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury Trial

    Read MoreRead Less
  • 07/19/2019
  • Docketat 09:30 AM in Department 78; Jury Trial - Held

    Read MoreRead Less
  • 07/19/2019
  • DocketMinute Order ( (Jury Trial)); Filed by Clerk

    Read MoreRead Less
  • 07/19/2019
  • DocketJury Instructions; Filed by Clerk

    Read MoreRead Less
  • 07/19/2019
  • DocketOther - (General Verdict); Filed by Clerk

    Read MoreRead Less
  • 07/19/2019
  • DocketJury Question; Filed by Clerk

    Read MoreRead Less
  • 07/18/2019
  • Docketat 09:30 AM in Department 78; Jury Trial - Held - Continued

    Read MoreRead Less
  • 07/18/2019
  • DocketMinute Order ( (Jury Trial)); Filed by Clerk

    Read MoreRead Less
  • 07/17/2019
  • Docketat 09:30 AM in Department 78; Jury Trial - Held - Continued

    Read MoreRead Less
  • 07/17/2019
  • DocketMinute Order ( (Jury Trial)); Filed by Clerk

    Read MoreRead Less
228 More Docket Entries
  • 05/09/2017
  • DocketProof-Service/Summons

    Read MoreRead Less
  • 05/08/2017
  • DocketPROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 05/08/2017
  • DocketProof-Service/Summons; Filed by Nigel Hudson (Plaintiff)

    Read MoreRead Less
  • 05/04/2017
  • DocketProof-Service/Summons

    Read MoreRead Less
  • 05/04/2017
  • DocketPROOF OF SERVICE OF SUMMONS

    Read MoreRead Less
  • 05/04/2017
  • DocketProof-Service/Summons

    Read MoreRead Less
  • 05/04/2017
  • DocketPROOF OF SERVICE OF SUMMONS

    Read MoreRead Less
  • 04/26/2017
  • DocketComplaint; Filed by Nigel Hudson (Plaintiff)

    Read MoreRead Less
  • 04/26/2017
  • DocketSUMMONS

    Read MoreRead Less
  • 04/26/2017
  • DocketCOMPLAINT FOR DAMAGES FOR (1) BREACH OF CONTRACT; (2) NEGLIGENCE; ETC

    Read MoreRead Less

Tentative Rulings

Case Number: BC659102    Hearing Date: March 03, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Nigel hudson;

Plaintiff,

vs.

john bachsian, et al.;

Defendants.

Case No.:

BC659102

Hearing Date:

March 3, 2020

[TENTATIVE] RULING RE:

PLAINTIFF’S MOTION FOR ATTORNEY’S FEES

Factual Background

The factual background relating to this motion is fully set forth in the Final Statement of Decision issued by the court on August 2, 2020. This Ruling addresses the issue of attorney’s fees referred to in that Statement.

DISCUSSION

Plaintiff is requesting an attorney’s fee award of $212,702.80, calculated at an hourly rate of $425 per hour for his counsel. Defendant does not contest the reasonableness of this hourly rate and any event the Court finds the rate well within appropriate guidelines for an attorney of plaintiff’s counsel’s experience and proficiency. While defendant does claim that some of the hours included in the calculation were not appropriately included, defendant has not provided the court with a sufficient basis to reduce the award based on these calculations.

Defendant also does not contest the fact that there is a provision in the operative contract providing for an award of attorney’s fees to the “prevailing party” in any action based on a breach of the contract. Defendant does assert, however, that plaintiff did not fully achieve his “litigation objectives,” and therefore the Court should exercise its discretion to not award plaintiff’s attorney’s fees in this action despite the fact that plaintiff receive a net monetary recovery.

The Court understands that it has discretion to find that a plaintiff did not fully achieve his “litigation objectives” and therefore is not be entitled to an award of attorney’s fees. Based on the same analysis set forth in Regency Midland Construction, Inc. v. Legendary Structures, Inc. (2019) 41 Cal of 5th 94, 1000, however, the Court does not believe exercising that discretion to deny plaintiff the attorney’s fees he was required to incur in this action would be just or appropriate.

Plaintiff trusted defendant to build a backyard and swimming pool that complied with the drawings defendant provided. What plaintiff is left with is a backyard in total disarray and a jury verdict for $96,800 to allow him to attempt to repair the damage and build what he was promised defendant would build. To require him, in addition, to pay the attorney’s fees he was required to incur to achieve this result would be unconscionable. While plaintiff did not succeed in all of his litigation objectives, he did receive the “net monetary recovery” in the action and the Court is exercising its discretion to award him the attorney’s fees he incurred to achieve this result which are in the amount of $212,702.30.

Plaintiff to give notice.

DATED: March 3, 2020

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC659102    Hearing Date: March 02, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

Nigel hudson;

Plaintiff,

vs.

john bachsian, et al.;

Defendants.

Case No.:

BC659102

Hearing Date:

October 16, 2019

FINAL STATEMENT OF DECISION RE:PHASE ii OF TRIAL

Factual Background

This is an action for breach of contract. The complaint alleges that on April 27, 2015, Plaintiff Nigel Hudson (“Hudson”) entered into a written construction contract with Defendant John Bachsian (“Bachsian”) and his companies, Defendants Universal Group Inc. (“Universal Group”) and Universal Construction Group, Inc. (“Universal Construction Group”) , for the installation of a swimming pool, deck, retaining walls, and associated work for Hudson’s residence. (FAC ¶¶ 10, 11.) The contract contained a warranty that the work would be free from defects for three years. (FAC ¶ 12.) The work, however, was defective, substandard, and not performed in a workmanlike manner, and caused Hudson damages in excess of $313,000.00. (FAC ¶¶ 15, 21.). The actual written contract is between plaintiff and Universal Group, Inc.

On November 8, 2018 the court heard testimony on the preliminary issue of whether defendants Universal Group Inc. and Universal Construction Group, Inc. are the alter egos of defendant Bachsian, making Bachsian personally liable for any judgment entered against them in this action. This is an equitable issue which must be resolved by the court. On November 14, 2018 the Court held that Universal Group Inc. and Universal Construction Group, Inc. are not the alter egos of defendant Bachsian. In connection with the same hearing counsel for defendants stipulated that Universal Group Inc. and Universal Construction Group, Inc. are the alter egos of each other.

The case was tried to a jury from July 9, 2019 to July 19, 2019. On July 19, 2019 the jury returned a verdict in favor of Hudson and against Universal Construction and Universal Construction Group [1]in the amount of $96,800.

The jury verdict left three issues to be decided in Phase II of the trial: (1) Is Hudson Entitled to the disgorgement of all monies paid by him on the project because Universal Group did not have worker’s compensation insurance covering it employees, (2) Is Hudson entitled to an award of attorneys’ fees incurred in proving issues as to which Defendants denied requests for admission? And, (3) is any ultimate award to Hudson in this case, including attorneys’ fees, limited to the amount of the contract price? The parties submitted supplemental briefs on these issues and on October 16, 2019 additional testimony was offered, Exhibits received and arguments heard on these subjects. On October 31, 2019, after receipt of the binders containing the Exhibits received in Phase II, the matter was submitted for decision.

The Court has read, reviewed and considered all of the above. The Court has also read and reviewed Plaintiff’s Objections to Tentative Statement of Decision filed December 19, 2019 and, based thereon rules as follows: (1) Plaintiffs’ Objections are overruled, and(2) This Final Statement of Decision is of the decision of the Court on Phase II of the trial.

DISCUSSION

Disgorgement of All Monies Paid

Hudson’s request for disgorgement is based on the assertion that because Universal group did not have Worker’s compensation insurance covering employees who worked on the Hudson project, its contracting license was suspended as a matter of law, and it therefore did not have a valid contractor’s license. It is the alleged absence of this contractor’s license that Hudson claims entitles him to disgorgement of all funds he paid on the project. There are a number of problems with this claim.

First, there was a significant amount of testimony about the order of the Contractors’ State License Board, of which the Court took judicial notice, suspending Universal Construction’s license to contract. But in issuing this order well after the contract at issue here was entered into and terminated (by Hudson), the Contractor’s State License Board expressly found that during this entire contract period, both Universal Construction and Universal Construction Group had valid and existing state contractor’s licenses. And even the post contract order was suspended, leaving both companies free to validly enter into contracts even after that order.

Second, while the evidence showed some confusion between Mr. Bachsian, who oversaw the construction, and his wife, who handled the bookkeeping and reporting to the State Contractor’s License Board, over which entity (Universal Construction or Universal Construction Group, which was its successor) was employing the workers on Hudson’s project, this was in a sense irrelevant because in fact they were the same people, whether employed by Universal Group or Universal Construction Group. The evidence was uncontradicted that they were covered by Worker’s Compensation Insurance at all times when they were performing work on Hudson’s property.

Hudson’s request for a declaratory judgment requiring disgorgement of all funds paid to Universal construction is denied.

Requests for Admission

Hudson requests an award of attorneys fees under CCP§2033.420(a) for defendants’ refusal to admit requests such as “Admit you performed defective work on the project” and “Admit you breached your contract with Hudson.” Section 2033.420(b)(3) provides that attorneys’ fees will not be awarded when “the party failing to make the admission had reasonable grounds to believe that that party would prevail in the matter.” The Court finds that defendants did have such grounds to deny the requests at issue and therefore decline to issue an attorney’s fee award on this basis.

Limitation on Hudson’s Award to the Amount of the Contract

The final issue in Phase II is whether the limitation of Defendants’ liability contained in Universal Group’s contract is valid. The clause containing this limitation states that Universal Group’s cumulative liability to Hudson and to “all contractors and subcontractors” on the project for damages “including but not limited to lawyer’s fees” is limited to “the contract amount or to a lesser amount.[i]” Hudson claims that this limitation violates Civil Code Section 1717 which requires an award of reasonable attorneys to either prevailing party in a contract action even if the contract authorizes an award of such fees to only one of the parties. The Court agrees.

As the authorities cited by plaintiff hold, the whole purpose of Section 1717 is to make the right to contractual attorneys’ fees reciprocal, whether this is stated in the contract or not. The contract does explicitly state that Reasonable attorneys fees shall be awarded to the prevailing party in any action brought under this Contract.[ii]” Nothing in the contract limits the damages or attorneys’ fees Defendants could recover from Hudson if Hudson breached the contract. Conceptually Defendants argument would justify a contract provision that each party would be entitled to attorneys fees in the event of a breach but the amount Defendants to recover are unlimited but Hudsons recovery would be limited to $1. This is not what either reciprocal or reasonable mean.

The Court also believes that the limitation Defendants are attempting to invoke also violates the prohibition against liquidated damages contained in Code of Civil Procedure, section 1671. This is true whether the issue is analyzed under Code of Civil Procedure section 1671(b) or(d). There was nothing impractical or extremely difficult about calculating the damages that would flow from a breach of the contract at the time the contract was entered into and the court believes it was unreasonable, under the circumstances existing at that time, to limit Hudsons but not Defendants’ recovery for such a breach. The Court therefore finds that Section 3j of the contract is not a valid limitation on the damages or attorneys fees Hudson can recover in this action.

Both parties have briefed to an extent the question of who the prevailing party in this action and is therefore entitled to an award of attorneys’ fees and costs. That was not the subject of the trial on Phase II and will not be decided in this Statement of Decision. Instead that issue will be addressed in the court separate ruling in connection with the March 3, 2020 hearing on that subject.

Plaintiff to give notice.

DATED: March 2, 2020

________________________________

Hon. Robert S. Draper

Judge of the Superior Court


[1] Because there was a stipulation that Universal Group and Universal Construction Group are alter egos of each other, the jury verdict form referred only to "Universal."


[i] Exhibit 39, Section 3J of the Terms and Conditions.

[ii] Id, Section 10.