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This case was last updated from Los Angeles County Superior Courts on 06/19/2019 at 00:23:39 (UTC).

THE SEMLER COMPANIES/MALIBU VS COLETTE PELISSIER

Case Summary

On 11/29/2017 THE SEMLER COMPANIES/MALIBU filed a Contract - Other Contract lawsuit against COLETTE PELISSIER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MITCHELL L. BECKLOFF. The case status is Disposed - Judgment Entered.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    ****8428

  • Filing Date:

    11/29/2017

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MITCHELL L. BECKLOFF

 

Party Details

Plaintiff and Respondent

THE SEMLER COMPANIES/MALIBU

Defendant and Appellant

PELISSIER COLETTE

Attorney/Law Firm Details

Plaintiff Attorneys

BARDO EVAN L.

EVAN L. BARDO

BARDO EVAN LEE

Appellant Attorney

ROSEN DAVID ERIC

Defendant Attorney

GARFINKEL GREGG S.

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 05/29/2019
  • at 10:30 AM in Department M; Hearing on Application for Order for Appearance and Examination - Held - Continued

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  • 05/29/2019
  • Order Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by THE SEMLER COMPANIES/MALIBU (Plaintiff)

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  • 05/29/2019
  • Minute Order ( (Hearing on Application for Order for Appearance and Examination)); Filed by Clerk

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  • 05/24/2019
  • Separate Statement; Filed by COLETTE PELISSIER (Defendant)

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  • 05/24/2019
  • Motion to Quash; Filed by COLETTE PELISSIER (Defendant)

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  • 05/24/2019
  • Motion to Quash; Filed by COLETTE PELISSIER (Defendant)

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  • 05/24/2019
  • Separate Statement; Filed by COLETTE PELISSIER (Defendant)

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  • 05/24/2019
  • Motion to Quash; Filed by COLETTE PELISSIER (Defendant)

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  • 05/24/2019
  • Separate Statement; Filed by COLETTE PELISSIER (Defendant)

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  • 05/24/2019
  • Motion to Quash; Filed by COLETTE PELISSIER (Defendant)

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64 More Docket Entries
  • 02/28/2018
  • Default Entered; Filed by THE SEMLER COMPANIES/MALIBU (Plaintiff)

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  • 02/28/2018
  • Request for Entry of Default / Judgment; Filed by THE SEMLER COMPANIES/MALIBU (Plaintiff)

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  • 02/28/2018
  • Default Entered (AS TO: COLETTE PELISSIER-ENTERED ); Filed by Attorney for Plaintiff

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  • 01/19/2018
  • Proof-Service/Summons; Filed by Attorney for Plaintiff

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  • 01/19/2018
  • Proof-Service/Summons; Filed by THE SEMLER COMPANIES/MALIBU (Plaintiff)

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  • 11/29/2017
  • Complaint; Filed by THE SEMLER COMPANIES/MALIBU (Plaintiff)

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  • 11/29/2017
  • Civil Case Cover Sheet

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  • 11/29/2017
  • Complaint Filed

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  • 11/29/2017
  • Summons; Filed by Plaintiff

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  • 11/29/2017
  • Summons Filed; Filed by Attorney for Plaintiff

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Tentative Rulings

Case Number: SC128428    Hearing Date: March 12, 2021    Dept: M

CASE NAME: The Semler Companies/Malibu v. Colette Pelissier

CASE NO.: SC128428

MOTION: Motion to Amend Judgment

HEARING DATE: 03/12/2021

BACKGROUND

On November 29, 2017, Plaintiff The Semler Companies/Malibu, a California Limited Partnership (“Semler” or “Plaintiff”) filed a complaint against Colette Peliessier and Does 1 -20 for breach of contract. Plaintiff alleged that Defendant breached a commercial lease which resulted in damages. Plaintiff also alleged that Defendant breached a tractor lease contract. On May 1, 2018, the Court entered default judgment against Defendant in the amount of 548,644.92. (See 05/0/2018 Default Judgment and 05/01/2018 Order.) Peliessier sought to set aside the default and default judgment, however, the Court denied the motion, and the Court of Appeal affirmed.

On January 12, 2021, the Court entered a temporary restraining order based upon Plaintiff’s ex parte application. (See 1/12/2021 Order.) Plaintiff’s application and supporting papers filed on January 6, 2021 were deemed the moving papers for this motion. Plaintiff seeks to amend the judgment to include nine entities as judgment debtors/defendants.

LEGAL STANDARD

“When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.” (Code Civ. Proc., § 187.)

“Under Code of Civil Procedure section 187, the court had the authority to amend the judgment to add a judgment debtor. (NEC Electronics Inc. v. Hurt (1989) 208 Cal.App.3d 772, 778, 256 Cal.Rptr. 441.) . . . The decision to grant an amendment in such circumstances lies in the sound discretion of the trial court.” (Carr v. Barnabey's Hotel Corp. In addition:

[n]o statute of limitations applies to a section 187 motion to amend a judgment to add a judgment debtor. To the contrary, the motion may be made “ ‘ “ ‘at any time so that the judgment will properly designate the real defendants.’ ” ’ [Citation.]” (Wells Fargo, supra, 227 Cal.App.4th at p. 7, 173 Cal.Rptr.3d 113.) “Simply put, section 187 recognizes ‘the inherent authority of a court to make its records speak the truth.’ [Citation.]” (Greenspan, supra, 191 Cal.App.4th at p. 509, 121 Cal.Rptr.3d 118, quoting Mirabito v. San Francisco Dairy Co. (1935) 8 Cal.App.2d 54, 57, 47 P.2d 530.

(Highland Springs Conference & Training Center v. City of Banning (2016) 244 Cal.App.4th 267, 287.)

REQUEST FOR JUDICIAL NOTICE

Exhibits 1 – 3, 6 – 12 are judicially noticeable documents since they are documents showing the creation of corporations or limited liability companies in California or Nevada.

Exhibit 4 and exhibit 13 are court records in a bankruptcy case and are judicially noticeable, however, the Court does not take judicial notice of the truth of the statements made therein.

Finally, Exhibit 5 is judicially noticeable as a court record showing the docket in the bankruptcy case. As such, Plaintiff’s requests for judicial notice are GRANTED.

ANALYSIS

Plaintiff seeks to amend the judgment to include the following entities as judgment debtors/ defendants: (1) Colette Production, Inc., a California Corporation (“Colette Production”); (2) Malibu Media, LLC, a California Limited Liability Company (“Malibu Media CA”); (3) Malibu Media Holdings LLC, a Nevada Limited Liability Company (“Malibu Media NV”); (4) Malibu 88, LLC, a California Limited Liability Company (“Malibu 88”); (5) Colette Properties, LLC, a California Limited Liability Company (“Colette Properties CA”); (6) Collette Properties LLC, a Nevada Limited Liability Company (“Collette Properties NV”) (7) ZO Digital LLC, a Nevada Limited Liability Company (“ZO Digital NV”); (8) Click Here LLC, a Nevada Limited Liability Company (“Click Here NV”); and (9) Unicorn Lights LLC, a Nevada Limited Liability Company (“Unicorn NV”). Plaintiff/Judgement Creditor argues that these entities are the alter egos of Pelissier and argues that reverse corporate veil piercing is appropriate in this matter. Plaintiff obtained a Judgment against Pelissier on May 1, 2018 in the amount of $548,644.92

“Rather than seeking to hold an individual responsible for the acts of an entity, reverse veil piercing seeks to satisfy the debt of an individual through the assets of an entity of which the individual is an insider.” (Curci Investments, LLC v. Baldwin (2017) 14 Cal.App.5th 214, 221.). “Reverse veil piercing is a means of reaching the LLC's assets, not the debtor's transferable interest in the LLC.” (Id. at 223 [emphasis added].) In deciding whether reverse veil piercing is appropriate, “the trial court should, at minimum, evaluate the same factors as are employed in a traditional veil piercing case, as well as whether [Plaintiff] has any plain, speedy, and adequate remedy at law.” (Id. at 224 [citing Sonora Diamond Corp. v. Superior Court The Court of Appeal in Curci Investments, LLC, remanded the case to the trial court “with directions to the trial court to consider whether the circumstances of this case justify piercing the veil of JPBI and adding it as a judgment debtor to the judgment against Baldwin.” (Curci Investments, LLC v. Baldwin (2017) 14 Cal.App.5th 214, 224–225.)

In considering whether to pierce the veil, the factors cited in Sonora Diamond and relied upon by the court are: (1) commingling of funds and other assets of the two entities, (2) the holding out by one entity that it is liable for the debts of the other, (3) identical equitable ownership in the two entities (4) use of the same offices and employees, (5) use of one as a mere shell or conduit for the affairs of the other, (6) inadequate capitalization, (7) disregard of corporate formalities (8) lack of segregation of corporate records, (9) identical directors and officers. (See Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 539.) Therefore, it is Plaintiff’s burden to provide evidence of all of the relevant factors mentioned in Sonora Diamond Corp. or explain why certain factors do not apply for each entity. In addition, there are two general requirements: “(1) that there be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow.” (Mesler v. Bragg Management Co. ].)

Plaintiff argues that Defendant confirmed in a July 8, 2019 sworn declaration that she is the only member of the “pass-through” entities Malibu Media CA and Colette Production, which are the first two entities listed above. (See Bardo Decl., ¶¶ 6-7, Ex. B [ Pelissier Decl. ¶¶ 2-3].) Plaintiff also points to the judicially noticeable documents showing Pelissier as sole manager and sole officer/director of Malibu Media CA and Colette Production. (See RJN Exs. 1 -2.) Collete Production is a corporation and Malibu Media CA is an LLC. Plaintiff argues that the Court in Postal Instant Press, Inc. v. Kaswa Corp. did not foreclose the possibility that reverse corporate veil piercing could be used in the appropriate case. Defendant opposes, arguing that plaintiff has not established that the court can reverse pierce the corporate veil of the first entity, a California Corporation. The Court of Appeal was clear in Postal Instant Press, Inc. that reverse piercing was flawed with respect to corporations, and “[t]o ameliorate the flaws in outside reverse piercing, courts recognizing the doctrine have imposed qualifications and requirements which, in their totality, essentially eliminate the outside reverse piercing doctrine as a practical matter. Indeed, if all the requirements of outside reverse piercing are met, its application would be unnecessary to protect the judgment creditor.” (Postal Instant Press, Inc. v. Kaswa Corp. (2008) 162 Cal.App.4th 1510, 1524.) Here, Plaintiff has failed to show that the Court can reverse pierce the corporate veil for (1) Colette Production, Inc., a California Corporation under California law. Therefore, the motion is denied as to Colette Productions, Inc.

Plaintiff makes generalized arguments as to why the Court should disregard the corporate forms of the remaining entities. The remaining entities are limited liability companies formed in either California or Nevada, some formed in March of 2020. Plaintiff argues that given the totality of the circumstances, the Court should reverse pierce the corporate veil. In opposition, Defendant argues that Plaintiff has failed to apply the multiple factors used for determining alter ego liability to each of the entities on an individual basis. The Court agrees that Plaintiff has failed to apply the factors to each of the individual LLCs. At best, on reply, Plaintiff has potentially shown “use of one as a mere shell or conduit for the affairs of the other” but has not shown or specified which particular entities are being used as shells or has provide the Court with the analysis required for reverse piercing the corporate veil. Therefore, the motion is denied without prejudice as to the remaining LLC entities.

Case Number: SC128428    Hearing Date: October 29, 2020    Dept: M

Case Name: The Semler Companies/Malibu v. Colette Pelissier

Case No. SC128428

Motion: Pelissier’s Motion to Disqualify Counsel

Hearing Date: 10/29/2020

Background

Defendant Colette Pelissier brings a motion to disqualify counsel pursuant to California Rule of Professional Conduct Rule 1.9. Pelissier seeks to disqualify Laura Bell arguing that Ms. Bell was her attorney. Pelissier also argues that Ms. Bell has shared confidential information to Semler’s in-house counsel, Evan Bardo. Pelissier argues that Semler’s in-house counsel must be vicariously disqualified from acting as counsel in this matter pursuant to Rule 1.9(c).

On July 11, 2019, the Court denied Defendant Colette Pelissier’s ex parte motion specially set a hearing for the motion to disqualify counsel.

Legal Standard

“ ‘A trial court’s authority to disqualify an attorney derives from the power inherent in every court “[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” ’ ” (Ontiveros v. Constable (2016) 245 Cal.App.4th 686, 694 (quoting People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (quoting Code Civ. Proc., § 128(a)(5))).) “ ‘[D]isqualification motions involve a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility.’ ” (Id. at 694-95.) “ ‘The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar.’ ” (Id. at 695.) “‘The important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process.’” (Id.) In exercising its discretion to disqualify an attorney, the Court is required to make a reasoned judgment which complies with the legal principles and policies applicable to the issue at hand. (Henriksen v. Great Am. Sav. & Loan (1992) 11 Cal.App.4th 109, 113.)

The protection of the attorney-client privilege is not the only ground for a motion to disqualify an attorney. (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1204 to 1205.) The Court has an independent interest in ensuring trials are conducted within ethical standards of the profession and that legal proceedings appear fair to all that observe them. (Id.) The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. (Id.) Accordingly, when an attorney’s continued representation threatens an opposing litigant with cognizable injury or would undermine the integrity of the judicial process, the trial court may grant a motion for disqualification, regardless of whether a motion is brought by a present or former client of recused counsel. (Id.)

Motions to disqualify counsel present competing policy considerations. (Zador Corp. v. Kwan (1995) 31 Cal.App.4th 1285, 1302.) On the one hand, a court must not hesitate to disqualify an attorney when it is satisfactorily established that the attorney wrongfully acquired an unfair advantage that undermines the integrity of the judicial process and will have a continuing effect on the proceedings before the Court. (Id.) On the other hand, it must be kept in mind that disqualification usually imposes a substantial hardship on the disqualified attorney’s innocent client, who must bear the monetary and other costs of finding a replacement. (Id.) This policy consideration is particularly important because it is widely understood that attorneys now commonly use disqualification motions for purely strategic purposes, e.g., to delay the litigation or to intimidate an adversary into accepting settlement on terms that would not otherwise be acceptable. (Id.)

Analysis

“Conflicts of interest commonly arise in one of two factual contexts: (1) in cases of successive representation, where an attorney seeks to represent a client with interests that are potentially adverse to a former client of the attorney; and (2) in cases of simultaneous representation, where an attorney seeks to represent in a single action multiple parties with potentially adverse interests.” (In re Charlisse C. (2008) 45 Cal.4th 145, 159.)

“An attorney-client relationship can be formed though no retainer is signed or no fees are paid. (Miller v. Metzinger (1979) 91 Cal.App.3d 31, 39–40, 154 Cal.Rptr. 22.)” (Gulf Ins. Co. v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2000) 79 Cal.App.4th 114, 126, as modified (Mar. 17, 2000).)

“‘When a party seeking legal advice consults an attorney at law and secures that advice, the relation of attorney and client is established prima facie.’ The absence of an agreement with respect to the fee to be charged does not prevent the relationship from arising.” Contractual formality is not required. [citation omitted.]

(Ibid.)

Defendant states that she hired Ms. Bell around December 2015 to act as her attorney. (See Pelissier Decl. ¶ 3.) Defendant also states that Ms. Bell advised her and her husband as to the purchase of the Malibu property located at 11824 Ellice Street, Malibu, CA 90265. (Id. ¶ 8.) However, this was in November of 2015. Defendant also provides evidence that Semler recommended Ms. Bell to Plaintiff. (See Ex. 1 to Pelissier Decl.)

Defendant argues that this is a case of successive representations. Defendant argues that under Rule 1.9(b), Ms. Bell must be disqualified. Rule 1.9(b) is inapplicable as it deals with lawyers were part of “a firm* with which the lawyer formerly was associated had previously represented a client” (CA ST RPC Rule 1.9 [asterisk in original].) Defendant may have been referring to Rule 1.9(a), which provides, “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person* in the same or a substantially related matter in which that person's* interests are materially adverse to the interests of the former client unless the former client gives informed written consent.*” (CA ST RPC Rule 1.9.)

Defendant argues that Ms. Bell attended the debtor’s examination as an attorney for Plaintiff. However, Plaintiff presents evidence that Ms. Bell does not represent Plaintiff in this matter. (See Semler Decl. ¶ 10.) Plaintiff also provide evidence that he obtained all of the information on Defendant over the years through his personal relationship with Defendant. (See Semler Decl. ¶¶ 4, 6 – 9.) Plaintiff also states that he knew about Defendant’s various banking accounts because Defendant had paid Plaintiff with checks. (See Ex. 1 to Semler Decl. ¶ 9.) Moreover, Plaintiff’s counsel, Evan Bardo, provides a declaration stating that he does not employ anyone else, including support staff. (See Bardo Decl. ¶ 15.) Plaintiff’s counsel states that Ms. Bell was at the judgment debtor’s examination to simply provide assistance as a personal favor. Mr. Bardo also declares that Ms. Bell has never communicated any information about Defendant. (See Bardo Decl. ¶ 13.) Mr. Semler also declares that he has never obtained any information about Defendant or her assets from Ms. Bell and that all of the information obtained in this case was through his own research and his client. (Semler Decl. ¶ 11.)

While Defendant presents evidence that she may have been in an attorney-client relationship with Ms. Bell, Defendant has not presented evidence that Ms. Bell divulged any information obtained from Defendant or that Ms. Bell is currently representing Plaintiff in this matter. Therefore, the motion to disqualify counsel is DENIED.

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