This case was last updated from Los Angeles County Superior Courts on 06/10/2019 at 07:04:24 (UTC).

TRICOAST BUILDERS INC VS STACY BARNHISEL ET AL

Case Summary

On 01/23/2017 TRICOAST BUILDERS INC filed a Contract - Other Contract lawsuit against STACY BARNHISEL. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MALCOLM MACKEY. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7811

  • Filing Date:

    01/23/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MALCOLM MACKEY

 

Party Details

Plaintiff

TRICOAST BUILDERS INC

Defendants

HABER JOSHUA

MUFG UNION BANK N.A.

TRAVELERS PROPERTY CASUALTY INSURANCE

BARNHISEL STACY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

CONNETTE MICHAEL T. ESQ.

CONNETTE MICHAEL THOMAS ESQ.

Defendant Attorneys

DOGARU CIPRIAN ESQ.

MURPHY EDWARD PATRICK

FORAN GLENNON PALANDECH PONZI & RUDLOFF

SESTAY JOSEPH S.

MARCUS DAVID MORRIS ESQ.

 

Court Documents

SUBSTITUTION OF ATTORNEY

3/9/2018: SUBSTITUTION OF ATTORNEY

SUBSTITUTION OF ATTORNEY

3/9/2018: SUBSTITUTION OF ATTORNEY

JOINT STIPULATION TO CONTINUE POST ARBITRATION STATUS CONFERENCE ORDER

3/15/2018: JOINT STIPULATION TO CONTINUE POST ARBITRATION STATUS CONFERENCE ORDER

NOTICE OF ENTRY OF ORDER CONTINUING POST-ARBITRATION STATUS CONFERENCE

3/23/2018: NOTICE OF ENTRY OF ORDER CONTINUING POST-ARBITRATION STATUS CONFERENCE

Minute Order

3/27/2018: Minute Order

Minute Order

5/15/2018: Minute Order

Minute Order

5/25/2018: Minute Order

DEFENDANTS' NOTICE OF UNAVAILABILITY AND OBJECTIONS TO EX PARTE MOTION

5/25/2018: DEFENDANTS' NOTICE OF UNAVAILABILITY AND OBJECTIONS TO EX PARTE MOTION

Minute Order

5/25/2018: Minute Order

PLAINTIFF'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICED MOTION TO LIFT STAY ON DISCOVERY; ETC.

5/25/2018: PLAINTIFF'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICED MOTION TO LIFT STAY ON DISCOVERY; ETC.

DEFENDANT TRAVELERS COMMERCIAL INSURANCE COMPANY'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

7/12/2018: DEFENDANT TRAVELERS COMMERCIAL INSURANCE COMPANY'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT TRAVELERS COMMERCIAL INSURANCE COMPANY'S MOTION FOR PROTECTIVE ORDER

7/12/2018: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT TRAVELERS COMMERCIAL INSURANCE COMPANY'S MOTION FOR PROTECTIVE ORDER

DEFENDANT TRAVELERS COMMERCIAL INSURANCE COMPANY'S NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER

7/12/2018: DEFENDANT TRAVELERS COMMERCIAL INSURANCE COMPANY'S NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER

NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION

7/12/2018: NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION

JOINDER OF DEFENDANTS STACY BARNHISEL AND JOSHUA HABER TO DEFENDANT TRAVELERS COMMERCIAL INSURANCE COMPANY'S MOTION FOR PROTECTIVE ORDER

7/20/2018: JOINDER OF DEFENDANTS STACY BARNHISEL AND JOSHUA HABER TO DEFENDANT TRAVELERS COMMERCIAL INSURANCE COMPANY'S MOTION FOR PROTECTIVE ORDER

DEFENDANT TRAVELERS COMMERCIAL INSURANCE COMPANY'S NOTICE OF MOTION AND MOTION FOR PROTFCTIVE ORDER

8/8/2018: DEFENDANT TRAVELERS COMMERCIAL INSURANCE COMPANY'S NOTICE OF MOTION AND MOTION FOR PROTFCTIVE ORDER

DEFENDANT TRAVELERS COMMERCIAL INSURANCE COMPANY'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

8/8/2018: DEFENDANT TRAVELERS COMMERCIAL INSURANCE COMPANY'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

DECLARATION OF EDWARD P. MURPHY IN SUPPORT OF DEFENDANT TRAVELERS COMMERCIAL INSURANCE COMPANY'S MOTION FOR PROTECTIVE ORDER

8/8/2018: DECLARATION OF EDWARD P. MURPHY IN SUPPORT OF DEFENDANT TRAVELERS COMMERCIAL INSURANCE COMPANY'S MOTION FOR PROTECTIVE ORDER

66 More Documents Available

 

Docket Entries

  • 05/07/2019
  • DocketNotice (of Entry of Judgment); Filed by Stacy Barnhisel (Defendant); Joshua Haber (Defendant)

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  • 05/02/2019
  • DocketJudgment ([PROPOSED] JUDGMENT IN CONFORMITY WITH ARBITRATION AWARD); Filed by Stacy Barnhisel (Defendant); Joshua Haber (Defendant)

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  • 04/08/2019
  • DocketMotion for Reconsideration; Filed by Tricoast Builders, Inc (Plaintiff)

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  • 04/03/2019
  • DocketNotice (of Entry of Order Confirming Arbitration Award); Filed by Stacy Barnhisel (Defendant); Joshua Haber (Defendant)

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  • 04/03/2019
  • DocketJudgment ([PROPOSED] JUDGMENT IN CONFORMITY WITH ARBITRATION AWARD); Filed by Stacy Barnhisel (Defendant); Joshua Haber (Defendant)

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  • 03/28/2019
  • Docketat 08:30 AM in Department 55, Malcolm Mackey, Presiding; Hearing on Motion to Vacate (Arbitration Award)

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  • 03/28/2019
  • Docketat 08:30 AM in Department 55, Malcolm Mackey, Presiding; Hearing on Motion for Order (RePetition to Confirm Arbitration Award) - Held

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  • 03/28/2019
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore (RE LaWanna Walters-Corson, CSR #7135); Filed by Tricoast Builders, Inc (Plaintiff)

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  • 03/28/2019
  • DocketMinute Order ( (Hearing on Motion for Order Re: Petition to Confirm Arbitrati...)); Filed by Clerk

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  • 03/21/2019
  • DocketDeclaration (In Support of Defendants' Petition to Confirm Arbitration Award); Filed by Stacy Barnhisel (Defendant); Joshua Haber (Defendant)

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134 More Docket Entries
  • 02/07/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 02/02/2017
  • DocketProof-Service/Summons; Filed by Tricoast Builders, Inc (Plaintiff)

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  • 02/02/2017
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 01/31/2017
  • DocketProof-Service/Summons; Filed by Tricoast Builders, Inc (Plaintiff)

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  • 01/31/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 01/27/2017
  • DocketNotice of Lis Pendens; Filed by Tricoast Builders, Inc (Plaintiff)

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  • 01/27/2017
  • DocketNOTICE OF PENDENCY OF ACTION

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  • 01/23/2017
  • DocketCOMPLAINT FOR DAMAGES: (1) BREACH OF OBLIGATION TO PAY MONEY ;ETC

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  • 01/23/2017
  • DocketComplaint; Filed by Tricoast Builders, Inc (Plaintiff)

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  • 01/23/2017
  • DocketSUMMONS

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Tentative Rulings

b"

Case Number: ****7811 Hearing Date: August 4, 2021 Dept: 55

TRICOAST BUILDERS, INC. v. BARNHISEL ****7811

Hearing Date: 8/4/21, Dept. 55

#7: MOTION TO AMEND JUDGMENT TO ADD MICHAEL CONNETTE AS A JUDGMENT DEBTOR.

Notice: Okay

Opposition

MP: Defendants/Judgment Creditors STACY BARNHISEL and JOSHUA HABER.

RP: Plaintiff TRICOAST BUILDERS, INC.

Summary

On 1/23/17, Plaintiff TRICOAST BUILDERS, INC. filed a Complaint alleging that it has not been fully paid for a work authorization agreement and home improvement agreement, after fire damage caused to the individual owner defendants’ home.

The causes of action are:

1. BREACH OF OBLIGATION TO PAY MONEY

2. BREACH OF WRITTEN CONTRACT

3. FORECLOSURE OF MECHANIC'S LIEN

4. REASONABLE VALUE OF LABOR AND MATERIALS FURNISHED.

On 5/2/19, the Court entered judgment in favor of Defendants STACY BARNHISEL and JOSHUA HABER and against Plaintiff TRICOAST BUILDERS, INC.

The Judgment was affirmed by unpublished appellate opinion filed 2/2/21, and the Remittitur was filed 4/20/21.

MP Positions

Judgment Creditors Stacy Barnhisel and Joshua Haber request that the Court grant the motion to add Michael Connette as a judgment debtor to the judgment against Tricoast Builders, Inc.

Grounds for the motion include the following:

· Even if Tricoast Builders, Inc. is not dissolved, the motion can be granted. There is no authority to the contrary.

· The basis for the motion is that Tricoast has no existence separate from Connette. Connette uses Tricoast as a liability shield; it serves no other purpose.

· Tricoast is not a viable entity; it only exists for protection for Michael Connette. The fact he keeps it a corporation, or lists others, who are not involved, as supposed legal officers, is irrelevant.

· Tricoast’s pending appeals did not cause any stay.

· Connette’s evidence, which consists solely of his own declaration, is inadmissible. Notably, there is no declaration or other evidence from Tricoast’s other supposed officers.

RP Positions

Plaintiff TRICOAST advocates denying the motion, for reasons including the following:

· TRICOAST did not stop doing business. As of the year 2016, TRICOAST as a corporate entity has been awarded about $500,000.

· Connette did not own and operative TRICOAST, but instead others have participated, including Mr. Vincent, who is the President, director, 20% shareholder, Responsible Managing Officer, and a licensed contractor. TriCoast from its inception to the present has officers.

· Connette did not use TRICOAST to pursue lawsuits or to be a liability shield.

· Tricoast has ability to pay the judgment because it has assets. TriCoast has an award of about $184,103.83 in the Smith matter protected by a lien on the property which has been assigned to Barnhisel. (Connette Decl.¶8). In addition, Barnhisel has recently been paid by TriCoast about $31,000 arising from Frederick. And, there was another $1,600 arising from Fonnegra. (Connette Decl.¶12).

· Connette does not make all the decisions on legal matters. All decisions are discussed with Mr. Combs, Mr. Vincent as Presidents and directors of TriCoast.

· The motion improperly relies upon some cases on appeal, as to which automatic stays apply. CCP ; 916(a).

· Distinguishably, the cited opinion, Carolina Casualty Ins. Co. v. L.M. Ross Law Group, LLP, (2012) 212 Cal.App.4th 1181, involved an attorney who continued to represent a law group that was dissolved with no funds, whereas the subject entity is not dissolved, and it does have funds.

· Barnhisel waited over 4.5 years to add Connette. A motion to amend a judgment to add a party on an alter ego theory may be denied where the additional party affirmatively establishes it has been prejudiced by the delay in seeking to amend the judgment. Highland Springs Conference & Training Ctr. v. City of Banning (2016) 244 CA4th 267, 282-284.

Tentative Ruling

The motion is denied.

The Court finds that the evidence attached to the motion and reply fails to be sufficiently competent and substantial in order to support a finding that the proposed judgment debtor is the alter ego of the judgment debtor.

Further, because of being provided with only partial, random samplings of TRICOAST BUILDERS, INC.’s financial conditions, the Court cannot soundly reason that the proposed judgment debtor is using corporate funds for personal use, or that inequity would resolve because of financial inability to satisfy the creditors’ judgment. Cf. Vasey v. California Dance Co. (1977) 70 Cal. App. 3d 742, 749 n.3 (“The evidence consisted of a financial statement … that at most raised some questions about the company's capitalization.”); Claremont Press Pub. Co. v. Barksdale (1960) 187 Cal. App. 2d 813, 817 (sufficiently, “a balance sheet showed a net worth of minus $1,800….”).

As for evidentiary objections filed by both sides, the Court generally agrees that most of the evidence from both sides is incompetent and subject to the objections. The evidence is in equipoise, and not convincing. The respective evidentiary showings are poor.

Even considering all evidence with the moving papers, the Court readily observes that the extensive papers are mostly irrelevant, or unreasonable in inferences, as to alter ego factors, such as an individual using a corporation to perpetrate fraud, commingling of funds, disregarding corporate formalities, using as a shell for the other’s affairs, unity of interest and ownership, individual domination and control, and resulting inequity.

Although moving parties’ proof addresses that TRICOAST BUILDERS, INC. has had some financial struggles, various liability determinations by judicial or administrative officers, a temporary corporate suspension, nevertheless, the totality of proof indicates that the entity continues to function, somewhat, as a viable corporation, gaining and losing funds, and being operated to do business, by officers and directors, beyond just self-serving control of the proposed judgment debtor.

A request for a judgment to be amended to add a judgment debtor as being the same party, an alter ego, or a successor corporation, must be supported by substantial evidence. McClellan v. Northridge Park Townhome Owners Ass'n (2001) 89 Cal. App. 4th 746, 751; Baize v. Eastridge Companies, LLC (2006) 142 Cal. App. 4th 293, 302; Carr v. Barnabey's Hotel Corp. (1994) 23 Cal. App. 4th 14, 21.

“The ability under [Code of Civil Procedure] section 187 to amend a judgment to add a defendant, thereby imposing liability on the new defendant without trial, requires both (1) that the new party be the alter ego of the old party and (2) that the new party had controlled the litigation, thereby having had the opportunity to litigate, in order to satisfy due process concerns.” Triplett v. Farmers Ins. Exchange (1994) 24 Cal. App. 4th 1415, 1421. Regarding amending judgments to add debtors, Code of Civil Procedure “section 187 applies only if the parties to be added as judgment debtors had control of the underlying litigation and were virtually represented…. By definition, then, section 187 mandates that at least one alter ego individual or entity be a party to the earlier litigation. “ Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 517. As to a motion to amend a judgment to name an additional judgment debtor, there must be sufficient evidence to show that proposed defendant had an opportunity to litigate the underlying action, and controlled the defense of that action. Nec Electronics v. Hurt (1989) 208 Cal. App. 3d 772, 781-82.

“Cases addressing amendment of a judgment to change or add the name of a judgment debtor demonstrate the need for notice to the affected defendant and a hearing regarding the propriety of the amendment.” Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 45.

No one test controls as to the alter ego doctrine which involves considering all of the circumstances, which may include: The commingling of funds; identical equitable ownership; the same offices; identical officers, directors and employees; disregarding of corporate formalities; and use of one as a mere shell or conduit for the other’s affairs. Morrison Knudsen Corp. v. Hancock, Rothert & Bunshoft, LLP (1999) 69 Cal.App.4th 223, 250. The factors for determining an alter ego relationship are not exhaustive, but may be considered with the particular circumstances of the case. Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 511-13.

“‘Ordinarily, a corporation is regarded as a legal entity separate and distinct from its stockholders, officers and directors. Under the alter ego doctrine, however, where a corporation is used by an individual or individuals, or by another corporation, to perpetrate fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose, a court may disregard the corporate entity and treat the corporation's acts as if they were done by the persons actually controlling the corporation.’” Robbins v. Blecher (1997) 52 Cal.App.4th 886, 892. “Under the alter ego doctrine…, when the corporate form is used to perpetrate a fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose, the courts will ignore the corporate entity and deem the corporation's acts to be those of the persons or organizations actually controlling the corporation, in most instances the equitable owners.” Sonora Diamond Corp. v. Sup. Ct. (2000) 83 Cal. App. 4th 523, 538.

Moving parties must show a unity of interest and ownership such that the separate personalities of the corporation and individuals do not exist, and that an inequity will result if the corporate entity is treated as the sole actor. Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal. App. 4th 1269, 1285; Vasey v. Cal. Dance Co. (1977) 70 Cal.App.3d 742, 749; Minifie v. Rowley (1921) 187 Cal. 481, 487.

"


Case Number: ****7811    Hearing Date: May 6, 2021    Dept: 55

TRICOAST BUILDERS, INC. v. BARNHISEL ****7811

Hearing Date: 5/6/21, Dept. 55

#12: MOTION TO RECONSIDER, OR ALTERNATIVELY, FOR RELIEF FROM THE MARCH 30, 2021 ORDER THAT PROCEEDS IN TRUST ACCOUNT ARE TO BE PAID TO JUDGMENT CREDITORS FREE AND CLEAR OF CONNETTE LAW OFFICE`S CLAIM OF ATTORNEYS LIEN.

Notice: Okay

Opposition

MP: Judgment debtor TRICOAST BUILDERS, INC.

RP: Judgment Creditors STACY BARNHISEL AND JOSHUA HABER.

Summary

On 1/23/17, Plaintiff TRICOAST BUILDERS, INC. filed a Complaint alleging that it has not been fully paid for a work authorization agreement and home improvement agreement, after fire damage caused to the individual owner defendants’ home.

The causes of action are:

1. BREACH OF OBLIGATION TO PAY MONEY

2. BREACH OF WRITTEN CONTRACT

3. FORECLOSURE OF MECHANIC'S LIEN

4. REASONABLE VALUE OF LABOR AND MATERIALS FURNISHED.

On 5/2/19, the Court entered judgment in favor of Defendants STACY BARNHISEL and JOSHUA HABER and against Plaintiff TRICOAST BUILDERS, INC.

The Judgment was affirmed by unpublished appellate opinion filed 2/2/21, and the Remittitur was filed 4/20/21.

MP Positions

Moving party requests the Court to enter an order reconsidering order of March 30, 2021, in effect rejecting an attorney’s lien on money paid to Tricoast in a Ventura County Superior Court case.

The motion is made on bases including the following:

· On March 31, 2021, the suspension was lifted, and Plaintiff TriCoast Builders, Inc. as a corporate entity is now active. (Connette Decl. ¶10). This is a new fact or circumstance which was unavailable at the time of the hearing on March 24, 2021.

· Plaintiff TriCoast Builders, Inc. represents that it did and does not have an attorney fee lien in any matter. Plaintiff TriCoast Builders, Inc. represents that Connette Law Office did and does have an attorney fee lien in the matters of Fonnegra and Frederick. Fonnegra and Frederick are the matters from which Defendants are requesting funds to be transferred to Defendants despite Connette Law Office`s attorney fee lien. (Connette Decl. ¶11).

· As stated in Plaintiff TriCoast Builders, Inc.`s opposition to Defendants` Motion, neither Michael Connette nor Connette Law office are neither Plaintiff TriCoast Builders, Inc. nor represented by Plaintiff TriCoast Builders, Inc. (Connette Decl. ¶12).

· Plaintiff TriCoast Builders, Inc. represents that Michael Connette is not the owner of Plaintiff TriCoast Builders, Inc. (Connette Decl. ¶14).

· Plaintiff TriCoast Builders, Inc represents that Michael Connette made some decisions with respect to finance and legal matters, but Mr. Larry Combs and Mr. Robert Vincent, with respect to Plaintiff TriCoast Builders, Inc., were the only Presidents and Responsible Managing Officers and holders of licenses from the Contractors State Licensing Board. (Connette Decl. ¶15).

RP Positions

Opposing parties advocate denying, and an award of sanctions ($3,936), for reasons including the following:

· Rather than present new facts, or new law, moving party re-argues the same arguments that the Court previously rejected in related rulings of March 24 and 30.

· Notice of ruling was filed and served on March 24, 2021. Ten days after that order date is April 3, 2021. As to that earlier order date, Tricoast untimely filed the motion on April 9th. CCP ; 1008.

· The corporate suspension was within Tricoast’s control. Thus, this is not really a new fact. Despite being suspended, the Court previously considered Tricoast’s argument on its merits.

· Tricoast and Connette cannot maintain their continuous efforts to litigate and re-litigate claims in this case without a valid contractor license. B&P Code Section 7031(a); Buzgheia v. Leasco Sierra Grove, (1997) 60 Cal.App.4th 374.

· On April 6, 2021, Tricoast had sought a shortened time hearing for a stay pending reconsideration or appeal; in response, the Court set a hearing for May 6, 2021. But Tricoast never filed anything for a stay for May 6, but instead, it filed the motion for reconsideration, with a hearing date of June 28, 2021. At Tricoast’s request, the Court advanced that motion to May 6.

Tentative Ruling

The motion for reconsideration is denied.

The opposing request for sanctions is granted.

Within 30 days, moving party TRICOAST BUILDERS, INC. shall pay to opposing parties STACY BARNHISEL AND JOSHUA HABER sanctions in the sum of $3,936.00.

The Court has already considered these issues, and the only new one that could not have been raised earlier, about subsequent corporate reinstatement, is not material, because the prior matter was denied on other merits.

"A motion for reconsideration may only be brought if the party moving for reconsideration can offer 'new or different facts, circumstances, or law' which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion.... A motion for reconsideration will be denied absent a strong showing of diligence." Forrest v. State Of Cal. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 202, disapproved on other grounds by Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1172. See also Baldwin v. Home Sav. of Am. (1997) 59 Cal. App. 4th 1192, 1199 (noting that 1992 amendment to CCP ;1008 tightened diligence requirements).

“[M]otions to reconsider allow the trial court to consider new facts or law relevant to its order….” Morton v. Wagner (2007) 156 Cal. App. 4th 963, 973. [Emphasis added.] Cf. also Wiz Tech., Inc. v. Coopers & Lybrand (2003) 106 Cal. App. 4th 1, 17-18 (no relevant basis for reconsideration shown).

Disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500. Issues of judicial error do not support motions for relief under Code of Civil Procedure Section 473, or reconsideration, but instead the prescribed remedy is to file a notice of appeal. Lavrischeff v. Blumer (1978) 77 Cal. App. 3d 406, 411.

After entry of a final judgment, courts lack jurisdiction to rule upon a motion for reconsideration. E.g., Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 859; Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal. App. 4th 187, 192.

Motions for reconsideration must be made within 10 days after service of written notice of entry of the order, extended under Code of Civil Procedure Section 1013(c) where service was by mail, fax or overnight delivery. Forrest v. State Of Cal. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 203, disapproved on other grounds by Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1172. Thus, the motion is timely as to the 3/30 order, although not the prior one.

Court orders denying requests for reconsideration are reviewed for abuse of discretion. E.g., Monroy v. City of L. A. (2008) 164 Cal. App. 4th 248, 265; County of L. A. v. James (2007) 152 Cal.App.4th 253, 256; Forrest v. Dept. of Corps. (2007) 150 Cal. App. 4th 183, 204 (court did not abuse its discretion in denying … motion for reconsideration….”), disapproved on other grounds by Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1172; White v. Lieberman (2002) 103 Cal. App. 4th 210, 219-20 (court did not abuse its discretion in denying a motion for reconsider that was entirely devoid of new or different facts, circumstances or law, and simply reiterated arguments made in a prior opposition.).

“Subdivision (d) of section 1008 provides that: ‘(d) A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7.’”In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1314 n.12.

Finally, Code of Civil Procedure Section 473 is not grounds for modifying, amending or revoking an order, and the requirements of Section 1008 must be satisfied. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500-01; Even Zohar Constr. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal. 4th 830, 844.



Case Number: ****7811    Hearing Date: March 24, 2021    Dept: 55

TRICOAST BUILDERS, INC. v. BARNHISEL ****7811

Hearing Date: 3/24/21, Dept. 55

#8: MOTION FOR ORDER THAT PROCEEDS IN TRUST ACCOUNT ARE TO BE PAID TO JUDGMENT CREDITORS FREE AND CLEAR OF TRICOAST’S OWNER AND SHAREHOLDER MICHAEL CONNETTER’S BOGUS CLAIM OF ATTORNEYS LIEN.

Notice: Okay

Opposition

MP: Judgment Creditors STACY BARNHISEL AND JOSHUA HABER.

RP: Judgment debtor TRICOAST BUILDERS, INC.

Summary

On 1/23/17, Plaintiff TRICOAST BUILDERS, INC. filed a Complaint alleging that it has not been fully paid for a work authorization agreement and home improvement agreement, after fire damage caused to the individual owner defendants’ home.

The causes of action are:

1. BREACH OF OBLIGATION TO PAY MONEY

2. BREACH OF WRITTEN CONTRACT

3. FORECLOSURE OF MECHANIC'S LIEN

4. REASONABLE VALUE OF LABOR AND MATERIALS FURNISHED.

On 5/2/19, the Court entered judgment in favor of Defendants STACY BARNHISEL and JOSHUA HABER and against Plaintiff TRICOAST BUILDERS, INC.

The Judgment was affirmed by unpublished appellate opinion filed 2/2/21.

MP Positions

Moving parties request the Court to enter an order that they can receive the funds in their attorneys Client Trust Account, free and clear of the alleged attorneys lien claim of Michael Connette, the principal of the judgment Debtor Tricoast Builders, Inc.

The motion is made on bases including the following:

· Tricoast Builders, Inc. is a suspended corporation (See Exhibit 2), and so cannot appear in Court.

· Attorney Connette’s inadmissible declaration is accompanied by no retainer agreement, no proof of any attorneys lien, which is the sole issue in this matter. He provides no authority that he doesn’t need to show an attorneys lien, any fees and costs that are owing. There is no proof of compliance with California Rules of Professional Conduct 3-300. He has testified that he is owner and officer of Defendant, which is not being its counsel.

RP Positions

Opposing party advocates denying, for reasons including the following:

· A prior attorney`s lien is superior to Defendants` judgement lien in both the Frederick and Fonnegra cases.

· The motion falsely contends that Connette is the principal of Defendant and not counsel.

· Michael Connette filed attorney lien notices in both Fonnegra and Frederick. (Motion p.5:23-25). The checks issued in the Frederick case to Defendants have Connette Law Office named as a payee as a result of the attorney lien filed in that case. The Court’s assignment order recognizes the attorney lien requiring that all checks are to include Connette Law Office as a payee. (opposition, Rothman Decl., Exhibit 1, p.2:17-21).

· Connette Law Office entered into a representation agreement with Plaintiff in compliance with California Rules of Professional Conduct, Rule 3-300, and filed notice of its attorney lien in both the Fonnegra and Frederick cases. (Connette Decl., ¶7).

Tentative Ruling

The motion is granted, for the reasons stated.

Similar opposing arguments, made in an opposition filed 2/25/20, were already rejected by the order entered 4/15/20.

The Court resolves disputes in the evidence, and finds that opposing party is a suspended corporation, that Michael Connette has acted as corporate representative, and that his declaration is cursory, lacking in evidentiary foundation and best evidence (e.g., the alleged representation agreement), in order to show a valid attorney-client attorneys’ fees lien.

Revenue and Taxation Code "Section 23301 provides, in relevant part, 'the corporate powers, rights and privileges of a domestic taxpayer may be suspended' if it does not pay its taxes. The suspension of the corporate powers, rights, and privileges means a suspended corporation cannot sue or defend a lawsuit while its taxes remain unpaid." Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2006) 136 Cal.App.4th 212, 217-18.

Where evidence is in dispute, trial courts may resolve the conflicts either way and the decision will be upheld if there is substantial evidence to support a trial court's finding. Costco Wholesale Corp. v. Sup. Ct. (2009) 47 Cal.4th 725, 733; Shadow Traffic Network v. Sup. Ct. (1994) 24 Cal.App.4th 1067, 1082; Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819, 842.



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