Preview
FILED: WESTCHESTER COUNTY CLERK 09/06/2018 04:43 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 09/06/2018
EXHIBIT A
FILED: WESTCHESTER COUNTY CLERK 09/06/2018 04:43 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 09/06/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
___________________________ -------------------X
PAMELA GOLDSTEIN, on behalf of herself and all
others similarly situated, AFFIDAVIT IN SUPPORT
Plaintiff, Index No. 60767/2018
-against-
Hon. Linda S. Jamieson
HOULIHAN/LAWRENCE INC.,
Defendant.
----------- ¬--------------------------------X
STATE OF NEW YORK )
) SS:
COUNTY OF WESTCHESTER )
Robert D. MacGill, being duly sworn, hereby deposes and says as follows:
1. I am a partner with the law firm of Barnes & Thornburg LLP.
2. I submit this affidavit in support of my motion for admission to practice pro hac
vice in the above-captioned matter.
3. As shown in the Certificate of Good Standing annexed hereto, I am a member in
good standing of the Bar of the State of Indiana and have been practicing law since 1981.
4. There are no pending disciplinary proceedings against me in any state or federal
court.
5. I have never been denied admission to practice in any court.
6. I have previously been admitted to practice pro hac vice in the State of New York
and have never been subject to discipline in relation thereto.
7. I will be associated with Philip M. Halpern of the law firm Collier Halpern &
Newberg, LLP, a New York attorney who will be the attorney of record in this matter.
FILED: WESTCHESTER COUNTY CLERK 09/06/2018 04:43 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 09/06/2018
8. I am familiar with and agree to comply with the standards of professional conduct
imposed upon members of the New York bar, including the rules of court governing the conduct
of attorneys and the Rules of Professional Conduct. I have read the Civil Practice Law and Rules
of the State of New York and the Uniform Rules for the New York State Trial Courts, including
the Rules of the Commercial Division of the Supreme Court, and I agree to comply with those
Rules.
9. I have read the duties set forth at 22 NYCRR § 520.11, containing the conditions
imposed on my appearance in this action pro hac vice, and shall abide thereby.
Wherefore your affiant respectfully requests that he be admitted to appear as counsel and
advocate pro hac vice in this case for defendant Houlihan/Lawrence Inc.
Robert D. MacGill
BARNES & THORNBURG LLP
11 South Meridian Street
Indianapolis, IN 46204
Email: rmacgill@btlaw.com
Telephone: (317) 231-7223
Facsimile: (317) 231-7433
SWORN to and subscribed before me
this of Qp¼tvv4er, 2018.
l(ot Public
SHARI BETH HOCHBERG
Public, State of New York
Notary
No. 02HO6339555
Qualified in Queens County
Commission Expires April 4, 20
FILED: WESTCHESTER COUNTY CLERK 09/06/2018 04:43 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 09/06/2018
EXHIBIT 1
FILED: WESTCHESTER COUNTY CLERK 09/06/2018 04:43 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 09/06/2018
SUPREME COURTOF
THE STATE OF INDIANA
Certification
STATE OF INDIANA, SS:
I, Gregory
R. Pachmayr, Clerk of the Supreme Court
of Indiana, do hereby certify
that
ROBERT DEAN MACGILL
is a member of the bar of said Court since admission on
May 29, 1981
, and is in good therein.
standing
Given under
my hand and the seal of said Court at
Indianapolis, Indiana, this 1st of August 2018 .
day ,
GREGORY R. PACHMAYR
CLERK, SUPREME COURT OF INDIANA
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Motion: Petition to Approve Compromise of Disputed Claim of Minor
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DALILAH VILLALOBOS, ET AL. VS FINAL TOUCH CONSTRUCTION & DESIGN, ET AL.
Jul 10, 2024 |
20STCV40002
Case Number:
20STCV40002
Hearing Date:
July 10, 2024
Dept:
28
Having set an order to show cause re: dismissal (settlement), the Court rules as follows.
BACKGROUND
On October 19, 2020, Plaintiffs Dalilah Villalobos, by and through her guardian ad litem Laura Eggleston, and Catalina Villalobos, by and through her guardian ad litem Maria Dominguez, filed this action against Defendants Final Touch Construction & Design, Luis Anthony Echeverria, Luis M. Echeverria, Chantra Sun, Lorraine Garcia, Gus Garcia, and Does 1-50 for wrongful death (motor vehicle negligence).
On October 20, 2020, the Court appointed Laura Eggleston to serve as guardian ad litem for Plaintiff Dalilah Villalobos.
On October 29, 2020, the Court appointed Maria Dominguez to serve as guardian ad litem for Catalina Villalobos.
On May 6, 2022, Defendants and Cross-Complainants
Final Touch Construction & Design, Luis Anthony Echeverria, and Luis M. Echeverria
filed an answer and a cross-complaint against Cross-Defendants Roes 1-25 for equitable/implied indemnity, apportionment and contribution, and declaratory relief.
On May 31, 2022, Defendant Chantra Sun filed an answer.
In addition, Cross-Complainant Chantra Sun, individually and as successor-in-interest to the Estate of Katrina Ariana Wilkins-Sun, filed a cross-complaint against Cross-Defendants
Final Touch Construction & Design, Luis Anthony Echeverria, Luis M. Echeverria, and Roes 1-100 for
negligence, wrongful death and survival action damages, equitable/implied indemnity, comparative contribution, apportionment, and tort of another.
On November 29, 2022 and January 4, 2023, the Court dismissed Defendants Lorraine Garcia and Gus Garcia without prejudice at Plaintiffs request.
On June 14, 2023, Cross-Complainant Chantra Sun filed a notice of unconditional settlement of the entire case on June 5, 2023.
On August 28, 2023, Plaintiffs counsel asked the Court for additional time to submit petitions for approval of minors compromises.
In response, the Court set an order to show cause re: dismissal (settlement) and a status conference re: filing of a petition to approve minors compromise for November 28, 2023.
On November 28, 2023, Plaintiffs counsel asked the Court for a continuance to finish negotiations on the Medi-Cal lien and to file petitions to approve minors compromises.
The Court continued the order to show cause re: dismissal (settlement) and the status conference re: filing of a petition to approve minor's compromise to March 8, 2024.
On March 8, 2024, Plaintiffs counsel did not appear, contact the Court to explain the non-appearance, file a petition to approve minors compromise, or submit a declaration showing good cause.
The Court continued the order to show cause re: dismissal (settlement) and status conference re: filing of a petition to approve minor's compromise to April 24, 2024 and ordered counsel to file a declaration at least two court days before April 24, 2024 regarding the status of the petitions and counsel's failure to appear.
On April 22, 2024, Plaintiffs counsel filed a declaration stating his failure to appear at the March 8, 2024 hearing was due to mistake, inadvertence and/or excusable neglect.
Counsel stated: (1) the matter had settled, (2) he was filing petitions to approve minors compromises, and (3) he had reserved hearings on the petitions for May 21, 2024.
Counsel asked the Court to continue the order to show cause re: dismissal (settlement) and status conference re: filing of a petition to approve minor's compromise for 90 days.
On April 24, 2024, the Court continued the order to show cause re: dismissal (settlement) and status conference re: filing of a petition to approve minor's compromise to May 28, 2024.
The Court ordered that the hearings on petitions to confirm minors compromise reserved for May 28, 2024 were to go forward and moving papers were to be filed timely.
On May 24, 2024, Plaintiffs counsel filed a declaration stating that he did not file the petitions to approve minors compromise timely because
"the guardian ad litems were still selecting the annuity structure for the respective claimants" and counsel was still waiting for fully executed annuity documents.
On
May 28, 2024
, the Court continued the order to show cause re: dismissal (settlement) and status conference re: filing of a petition to approve minor's compromise to July 10, 2024.
Plaintiffs have not filed petitions to approve minors compromises and have not submitted a new declaration showing good cause why the Court should not dismiss the action.
LEGAL STANDARD
Code of Civil Procedure section 583.410 provides:
(a) The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.
(b) Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.
(Code Civ. Proc., § 583.410.)
A discretionary dismissal under [Code of Civil Procedure section 583.410] (or for other delay in prosecution) is without prejudice to renewed litigation.
(L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 11:190.2, p. 11-83.)
California Rules of Court, rule 3.1385, provides in part:
(b) Dismissal of case
Except as provided in (c) or (d), each plaintiff or other party seeking affirmative relief must serve and file a request for dismissal of the entire case within 45 days after the date of settlement of the case. If the plaintiff or other party required to serve and file the request for dismissal does not do so, the court must dismiss the entire case 45 days after it receives notice of settlement unless good cause is shown why the case should not be dismissed.
* * *
(d) Compromise of claims of a minor or disabled person
If the settlement of the case involves the compromise of the claim of a minor or person with a disability, the court must not hold an order to show cause hearing under (b) before the court has held a hearing to approve the settlement, provided the parties have filed appropriate papers to seek court approval of the settlement.
(e) Request for additional time to complete settlement
If a party who has served and filed a notice of settlement under (a) determines that the case cannot be dismissed within the prescribed 45 days, that party must serve and file a notice and a supporting declaration advising the court of that party's inability to dismiss the case within the prescribed time, showing good cause for its inability to do so, and proposing an alternative date for dismissal. The notice and a supporting declaration must be served and filed at least 5 court days before the time for requesting dismissal has elapsed. If good cause is shown, the court must continue the matter to allow additional time to complete the settlement. The court may take such other actions as may be appropriate for the proper management and disposition of the case.
(Cal. Rules of Court, rule 3.1385, subds. (b), (d), (e).)
DISCUSSION
As noted, on June 14, 2023, Cross-Complainant Chantra Sun filed a notice of unconditional settlement of the entire case.
On August 28, 2023, Plaintiffs counsel confirmed the settlement by asking the Court for additional time to submit petitions to approve minors compromises.
The Court granted the continuance request and granted counsels subsequent continuance requests on November 28, 2023, April 24, 2024, and May 28, 2024.
It is now more than one year after the parties settled the case.
Under California Rules of Court, rule 3.1385(b), except as provided in subdivisions (c) or (d), the Court must dismiss the entire case 45 days after it receives notice of settlement unless good cause is shown why the case should not be dismissed.
(Cal. Rules of Court, rule 3.1385(b).)
Subdivision (c) of California Rules of Court, rule 3.1385, applies only to conditional settlements.
The notice of settlement here states the settlement was unconditional.
Therefore, subdivision (c) does not apply here.
Subdivision (d) of California Rules of Court, rule 3.1385, states that [i]f the settlement of the case involves the compromise of the claim of a minor or person with a disability, the court must not hold an order to show cause hearing under (b) before the court has held a hearing to approve the settlement,
provided the parties have filed appropriate papers to seek court approval of the settlement
.
(Cal. Rules of Court, rule 3.1385(d), emphasis added.)
Here, Plaintiffs have not filed appropriate papers to seek Court approval of the settlement.
Therefore, subdivision (d) does not prevent the Court from holding an order to show cause hearing.
The Court set the July 10, 2024 order to show cause hearing on May 28, 2024.
Plaintiffs have submitted no papers since May 28, 2024 demonstrating good cause why the case should not be dismissed.
The Court dismisses the case
under
Code of Civil Procedure section 583.410 and California Rules of Court, rule 3.1385(b).
CONCLUSION
Having issued an order to show cause re: dismissal (settlement) on May 28, 2024, and no good cause having been shown, the Court dismisses the case without prejudice
under Code of Civil Procedure section 583.410 and California Rules of Court, rule 3.1385(b).
The Court will give notice of this ruling.
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DEMURRER ON COMPLAINT FOR
OTHER NON-PERSONAL
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(OVER $35,000) OF STEVE
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forth the different theories into separate counts to facilitate the adjudication of their validity.
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Case Number:
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Hearing Date:
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Dept:
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On January 12, 2023, Lido re-filed its demurrer to the SAC in Department S27. On June 27, 2023, the Court continued the hearing on the demurrer, finding the parties had not adequately met and conferred prior to filing their papers. On July 27, 2023, the Court sustained the demurrer with leave to amend. On September 20, 2023, rather than amending the SAC, Plaintiffs dismissed Lido from the case. On December 21, 2023, Defendants Ivory Holdings and Vollero filed a demurrer with the motion to strike portions of the SAC. On January 23, 2024, the Court sustained the demurrer with leave to 20 days amend as to the NIED cause of action and alter ego liability cause of action and overruled the strict liability for ultrahazardous activity cause of action, the violation of Health and Safety Code, § 25359.7, cause of action and the IIED cause of action; the Court also granted the motion to strike without leave to amend as to punitive damages and related allegations. (January 23, 2024 Minute Order.) On April 24, 2024, Plaintiffs filed a Third Amended Complaint (TAC) more than two months after the Courts January 23 order. Meet and Confer Defendant Volleros counsel states that he sent a meet and confer letter to Plaintiffs counsel on May 17, 2024 detailing issues with the TAC and his availability for a telephonic meet and confer at least 5 days prior to filing the instant motions. (Rasmussen Decl.1, ¶ 5, Exh. B.) Defendant Volleros counsel states that Plaintiffs counsel did not respond to the meet and confer attempt. (Id., at ¶ 6.) In opposition, Plaintiffs counsel argues Defendant Volleros counsel failed to meet and confer because the issues were not discussed in person or by telephone as required under Code Civ. Proc., §§ 430.41, 435.5. Notwithstanding the parties conflicting ideas of meet and confer, it is very likely an informal attempt to resolve the matter would have been unsuccessful. Analysis 1. Delay in Filing of Third Amended Complaint Code Civ. Proc., § 472b, states that: [w] hen a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) ¶ 7:145; Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.) After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court. (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 613.) While a court has discretion to require a noticed motion before permitting a plaintiff to file an amended complaint late, a court also has the discretion to accept a filing without a noticed motion. (Harlan v. Dep't of Transportation (2005) 132 Cal. App. 4th 868, 873.) The Court exercises its discretion and accepts Plaintiffs untimely filed Third Amended Complaint without a noticed motion. 2. Second Amended Complaint Holding (Alter Ego) On January 23, 2024, Judge Mark Kim sustained Defendant Volleros Demurrer to the Second Amended Complaint with leave to amend. Judge Kim ruled: All claims against Volero are plead on an alter ego theory. Plaintiffs alter ego allegations are found at ¶6 of the SAC, and merely allege that each defendant was acting as the alter ego of each other defendant. Relying on Rutherford Holdings, LLC v. Playa del Rey (2014) 223 Cal.App. 221, 236, Judge Kim held: Plaintiffs herein failed to allege any of the ultimate facts showing alter ego liability. They failed to allege unity of interest, domination and control, inadequate capitalization, etc. Voleros demurrer is therefore sustained with leave to amend. Plaintiffs must allege ultimate facts showing imposition of liability against Volero would be proper. (See January 23, 2024 Minute Order, Legal Standard on Demurrer, Alter Ego Liability, 3(h)). 3. Demurrer to the Third Amended Complaint (Alter Ego) A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing partys pleading. It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment. California Logistics, Inc. v. State of California (2008) 161 Cal. App. 4th 242, 247. The burden is on the complainant to show in what manner and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiffs allegations of alter ego in the TAC are found at ¶ 3 and 6. These allegations are identical to the alter ego allegations found at ¶ 3 and ¶6 of the SAC. No additional facts or allegations have been added by Plaintiffs. As discussed, Judge Kim found those allegations deficient as Plaintiff failed to allege any of the ultimate facts showing alter ego liability and failed to allege unity of interest, domination and control, inadequate capitalization. (January 23, 2024 Minute Order). In sum, Plaintiffs completely failed to amend or modify their operative pleading in any manner or in compliance with Judge Kims ruling. In Plaintiffs opposition, Plaintiffs request leave to amend by suggesting three new facts, previously unknown, support the theory of alter ego between Vollero and Ivory Holdings. These facts are: (1) and (2) on August 16, 2016, two separate Deeds of Trust were recorded against the subject premises with Vollero as the Beneficiary and (3) Vollero, as an individual, performed the alleged remediation of the toxic chemicals which are alleged to have harmed Plaintiffs. Assuming the new facts found in Plaintiffs Opposition are true, Plaintiffs have not met their burden demonstrating how or in what manner these new allegations support of finding that a reasonable possibility exist for Plaintiffs to cure the defects and successfully pled a theory of alter ego. (Reeder v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795, 805.) These additional facts show no connection between Vollero and Ivory Holdings. Even with the inclusion of those three allegations, Plaintiffs operative pleading would fail to allege any of the ultimate facts showing an alter ego theory as set forth in Rutherford (e.g. allegations of unity of interest, domination and control, inadequate capitalization). 4. Ruling The Court sustains Defendant Volleros Demurrer without leave to amend. Defendant Volleros motion to strike is now moot.
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Preview
FILED: WESTCHESTER COUNTY CLERK 09/06/2018 04:43 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 09/06/2018 EXHIBIT A FILED: WESTCHESTER COUNTY CLERK 09/06/2018 04:43 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 09/06/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ___________________________ -------------------X PAMELA GOLDSTEIN, on behalf of herself and all others similarly situated, AFFIDAVIT IN SUPPORT Plaintiff, Index No. 60767/2018 -against- Hon. Linda S. Jamieson HOULIHAN/LAWRENCE INC., Defendant. ----------- ¬--------------------------------X STATE OF NEW YORK ) ) SS: COUNTY OF WESTCHESTER ) Robert D. MacGill, being duly sworn, hereby deposes and says as follows: 1. I am a partner with the law firm of Barnes & Thornburg LLP. 2. I submit this affidavit in support of my motion for admission to practice pro hac vice in the above-captioned matter. 3. As shown in the Certificate of Good Standing annexed hereto, I am a member in good standing of the Bar of the State of Indiana and have been practicing law since 1981. 4. There are no pending disciplinary proceedings against me in any state or federal court. 5. I have never been denied admission to practice in any court. 6. I have previously been admitted to practice pro hac vice in the State of New York and have never been subject to discipline in relation thereto. 7. I will be associated with Philip M. Halpern of the law firm Collier Halpern & Newberg, LLP, a New York attorney who will be the attorney of record in this matter. FILED: WESTCHESTER COUNTY CLERK 09/06/2018 04:43 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 09/06/2018 8. I am familiar with and agree to comply with the standards of professional conduct imposed upon members of the New York bar, including the rules of court governing the conduct of attorneys and the Rules of Professional Conduct. I have read the Civil Practice Law and Rules of the State of New York and the Uniform Rules for the New York State Trial Courts, including the Rules of the Commercial Division of the Supreme Court, and I agree to comply with those Rules. 9. I have read the duties set forth at 22 NYCRR § 520.11, containing the conditions imposed on my appearance in this action pro hac vice, and shall abide thereby. Wherefore your affiant respectfully requests that he be admitted to appear as counsel and advocate pro hac vice in this case for defendant Houlihan/Lawrence Inc. Robert D. MacGill BARNES & THORNBURG LLP 11 South Meridian Street Indianapolis, IN 46204 Email: rmacgill@btlaw.com Telephone: (317) 231-7223 Facsimile: (317) 231-7433 SWORN to and subscribed before me this of Qp¼tvv4er, 2018. l(ot Public SHARI BETH HOCHBERG Public, State of New York Notary No. 02HO6339555 Qualified in Queens County Commission Expires April 4, 20 FILED: WESTCHESTER COUNTY CLERK 09/06/2018 04:43 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 09/06/2018 EXHIBIT 1 FILED: WESTCHESTER COUNTY CLERK 09/06/2018 04:43 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 09/06/2018 SUPREME COURTOF THE STATE OF INDIANA Certification STATE OF INDIANA, SS: I, Gregory R. Pachmayr, Clerk of the Supreme Court of Indiana, do hereby certify that ROBERT DEAN MACGILL is a member of the bar of said Court since admission on May 29, 1981 , and is in good therein. standing Given under my hand and the seal of said Court at Indianapolis, Indiana, this 1st of August 2018 . day , GREGORY R. PACHMAYR CLERK, SUPREME COURT OF INDIANA