Preview
MMO
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jun-23-2014 3:24 pm
Case Number: CGC-13-532434
Filing Date: Jun-23-2014 3:23
Filed by: ROSSALY DELAVEGA
Juke Box: 001 Image: 04528020
DECLARATION OF
SEMEYON GOFMAN VS. WHITTIER ENTERPRISE LLC, et al
001004528020
Instructions:
Please place this sheet on top of the document to be scanned.
‘seCo won aA wn FF YW NY =
yw Ny YR NY NY KR Se eB Be ewe Be ee eB ee
aA A B Yb NY —§ FS © OAK DH FF Ww NY KF S&S
© 3°
Qe,
Svetlana M. Shirinova (SBN 236411) AN Fp Rtkae
LAW OFFICES OF SVETLANA M. SHIRINOVA Supe ISCO C
785 Market Street, 16th Floor ORC puny
San Francisco, California 94103
Telephone: (415) 947-0703
Facsimile: (415) 947-0733
Email: Svetlana@svetlaw.com
Attorney for Plaintiff
Semeyon Gofman
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
SEMEYON GOFMAN, an individual, Case No: CGC-13-532434
Plaintiff, DECLARATION OF SVETLANA M.
SHIRINOVA RE: OSC
v. 1
Date: July 8, 2014 '
WHITTIER ENTERPRISE, LLC. Time: 10:30 AM
Dept.: 610
Defendant.
Page 1
Declaration of Svetlana M. Shirinova re OSCwu F&F Ww NY =
Co ont DN
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
I, Svetlana M. Shirinova, declare:
1. I am the attorney for Plaintiff Semeyon Gofman. I make this Declaration in
response to the Court’s Order to Show Cause. The following facts are true, to the best of
my personal knowledge. If called as a witness, I could and would testify to the truth of the
matters stated herein.
2. On August 12, 2013, Plaintiff timely accepted Defendant Whittier Enterprise,
LLC’s (“Whittier”) C.C.P. §998 Offer to Compromise this case by entry of judgment in
favor Plaintiff against Whittier for $10,000.
3. October 17, 2013, Plaintiff filed its acceptance of Whittier’s C.C.P. §998
Offer.
4, On February 3, 2014, the Court granted Plaintiff's Motion for Attorneys Fees
as Prevailing Party in the amount of $5,000 as against Whittier.
5. On or about May 12, 2014, Plaintiff lodged with the court for filing a Request
for Default Judgment against Whittier. On May 12, 2014, the Default Clerk rejected this
request because “[t]he Offer to Compromise Judgment Must Match the Amount in the
Offer to Compromise.”
6. On May 29, 2014, Plaintiff filed a “Notice of Entry of Order” regarding the
court’s order denying defendant’s motion for attorneys’ fees as prevailing party.
7. Plaintiff, via his counsel, has communicated an offer to Whittier’s counsel to
resolve the $5,000 still owed to Plaintiff for attorneys’ fees and costs as prevailing party,
whereby Whittier would pay Plaintiff an amount less than the $5,000 in attorneys’ fees and
costs ordered by the Court on February 3, 2014. Whittier’s counsel refused the offer and
has further demonstrated a lack of cooperation to resolve this case. (Exhibit A, email from
attorney Gentino re: resolution of this matter)
8. I sent attorney Gentino another email to reason with him to finalize this
matter (Exhibit B).
9. Accordingly, Plaintiff is filing herewith a Request for Entry of Judgment,
Page 2
Declaration of Svetlana M. Shirinova re OSCoO oN KD HW FF Ww Nn
yw N YR RN DY Be ee Be Be Be Be Be Se
a a F FBS F&F SF CHA BDAA BF wWw NH SK SC
© °
requesting that the Court enter Judgment in favor of Plaintiff for $10,000 pursuant to the
accepted C.C.P. §998 offer, plus $5,000 to Plaintiff for attorneys’ fees and costs as the
prevailing party as ordered by the Court on February 3, 2014.
10. In light of the foregoing, Plaintiff requests that the Court: (1) take the OSC
hearing off calendar and (2) not dismiss this case until a final judgment can be entered for
$10,000 in favor of Plaintiff against Whittier plus the $5,000 to Plaintiff for attorneys’ fees
and costs as the prevailing party as ordered by the Court on February 3, 2014 or until the
parties can reach a final settlement agreement.
I declare under the penalty of perjury under the laws of California that the foregoing
is true and correct.
Dated: uno? 2014 LAW OFFICES OF SVETLANA M.
SHIRINOVA
Atte, Le,
Svetlana M. Shirinova
Attorneys for Plaintiff
Page 3
Declaration of Svetlana M. Shirinova re OSC
TesEXHIBIT A© 3°
Svetlana Shirinova
From: Robert Gentino
Sent: Monday, May 26, 2014 6:35 PM
To: Svetlana Shirinova; Eric Lightman
Subject: Gofman v. Whittier
Svetlana:
I appreciate your call last week trying to resolve this. As you know, the Court granted Alex $570 in costs as
prevailing party, but erroneously denied his motion for atty fees, ruling that Alex failed to demonstrate the
action was filed "in bad faith" - a requirement that only took effect on Jan. 1, 2014, five months after Alex
prevailed by dismissal in Aug. 2013. Because Alex received a cost award, he was obviously the prevailing
party, and Labor Code 218.5 in effect throughout 2013 mandates atty fees to prevailing party.
Thus, we intend to appeal the erroneous denial of mandatory atty fees to Alex in effect upon dismissal. If we
prevail on appeal, Alex's appellate costs and fees will also be recoverable which may dwarf the $10,000
windfall Gofman already received. Before we appeal, we offer to settle this entire matter by mutual release and
full satisfaction. This offer shall expire in 10 days.
By now, you know that I don't bluff and will appeal this, if necessary, to recover mandatory fees. If you want
to risk substantial appellate fees and costs against Gofman, I will respect that.
Robert Gentino, Esq.
Panasonic Building
3330 Cahuenga Blvd. West #303
Los Angeles, CA 90068
818.509.7272
Confidentiality Notice: This e-mail may be privileged and confidential for the sole use of the intended
recipient. Any other use, distribution, or disclosure is prohibited. If you are not the intended recipient,
kindly notify me and delete this e-mail. Thank you.EXHIBIT B© °
SVETLANA M. SHIRINOVA
Attorney at Law
785 Market Street, 16th Floor
San Francisco, CA 94103
Tel.: (415) 947-0703
Fax: (415) 947-0733
E-mail: svetlana@svetlaw.com
June 5, 2014
Via Electronic Mail
Re: Gofman v. Whittier Enterprises, LLC, et al.
Mr. Gentino:
You informed me you would appeal the court’s denial of attorney’s fees to
the defendant - individual employer under California Labor Code section 218.5. I
do not believe that you will prevail on appeal and here is why.
Plaintiff filed his complaint alleging causes of action under FEHA and wage
and hour law against the LLC and its individual owner as an alter ego. Such
complaint was warranted on information and belief. Both defendants filed a
demurrer. The LLC (contemporaneously with filing of the demurrer) presented a
998 offer for a judgment in plaintiff's favor.
The plaintiff accepted the offer and dismissed the individual owner without
prejudice. The individual owner never filed an answer with a prayer requesting
attorney’s’ fees. There was never a hearing on the demurrer. The court could have
overruled your demurrer or could have granted leave to amend and the plaintiff
could have amended the complaint.
After accepting the 998 offer, plaintiff moved for attorney’s fees; the court
granted his motion ruling he was the prevailing party. You failed to pay the fees
and moved to ask for attorney’s allegedly incurred defending the individual owner
under the labor Code of 218.5. The court denied your motion. Now are planning
to appeal the decision.© 3°
The standard of review on issues of attorney's fees and costs is abuse of
discretion, and the decision of the trial court will only be disturbed when there is
no substantial evidence to support the trial court's findings or when there has been
a miscarriage of justice. (Ellis v. Toshiba America Information Systems, Inc. (2013)
218 Cal.App.4th 853, 882.)To prevail on your appeal you will need to convince the
appellate court of:
1) Individual Defendant were entitled to attorney’s fees under 218.5
2) Individual Defendant was the prevailing party
3) Cal Labor Code 218.5 as amended is not applicable to your case
Individual Defendant is not entitled to attorney’s fees because you Never
requested the attorney’s fees on behalf of the individual defendant in the
prayer of your Answer. You never filed an Answer, never submitted a prayer.
Cal Labor Code 218.5 states:
“(a) In any action brought for the nonpayment of wages, fringe benefits, or
health and welfare or pension fund contributions, the court shall award reasonable
attorney's fees and costs to the prevailing party if any party to the action requests
attorney's fees and costs UPON THE INITIATION OF THE ACTION.
However, if the prevailing party in the court action is not an employee, attorney's
Sees and costs shall be awarded pursuant to this section only if the court finds that
the employee brought the court action in bad faith. This section shall not apply to
an action brought by the Labor Commissioner. This section shall not apply to a
surety issuing a bond pursuant to Chapter 9 (commencing with Section 7000) of
Division 3 of the Business and Professions Code or to an action to enforce a
mechanics lien brought under Chapter 4 (commencing with Section 8400) of Title
2 of Part 6 of Division 4 of the Civil Code (b) This section does not apply to any
cause of action for which attorney's fees are recoverable under Section 1194.
Cal. Lab. Code § 218.5 (West)
Because there is no prayer and no pleading requesting attorney’s for the
individual defendant, the court of appeal may not uphold your request. I have
checked the appellate courts’ decisions on this issue and on other statutory
attorneys’ fees awards. The courts get technical and most likely will deny your |
appeal by saying that the sufficiency of the pleading was never tested by the court
2© °
and your demurrer was never heard and you did not property enter a prayer
specifically under 218.5 on behalf of Mezeonchik for attomey’s fees. I have seen
the appeals denied for lack of request in the initial pleadings.
2) Individual Defendant was NOT the prevailing party, because he was
dismissed without prejudice and because no final judgment was issued in his
favor. Here, in Gofiman, you will have a hard time proving that the individual
defendant was the prevailing party, as explained before. First, no final judgment
was entered, the dismissal was without prejudice and you, yourself, have argued in
your Reply to the Opposition that your attorneys’ fees motion was “timely because
no notice of entry of dismissal was ever filed”. The appellate court will read your
argument and will notice the contradiction.
Prevailing party is defined as follows under the Cal.C.C.P. § 1032(b).
“When a plaintiff voluntarily dismisses an action with prejudice, the defendant is
ordinarily one in whose favor a dismissal has been entered, and therefore qualifies
as a “prevailing party” who is entitled as a matter of right to recover costs unless
another statute expressly provides otherwise. West's Ann.Cal.C.C.P. § 1032(b).
Carver v. Chevron U.S.A., Inc., 97 Cal. App. 4th 132, 118 Cal. Rptr. 2d 569
(2002)”
During the oral argument the judge addressed dismissal without
prejudice v. dismissal with prejudice and this went into his analysis in denying
your motion. The appellate courts know the difference and you are unlikely to
prevail.
3) Cal Labor Code 2189.5 as amended applies to the ruling. Here is
why. You filed you motion after the statute was amended. You had a choice
of filing your motion while the amendment was still pending, but you waited.
The appellate court will note this.
The California Supreme Court has established a two-step analysis to
determine whether an amended statute should apply to actions that occurred before
its enactment. First, courts must determine whether the amendment changes or
merely clarifies the law. Id. If the amendment merely clarifies existing law, it is not
retrospective “because the true meaning of the statute remains the same.” quoting
Western Sec. Bank v. Superior Court, 15 Cal. 4th 232, 243 (1997).© 3
If you check the legislative intent for the amendment of Labor Code 218.5
(as I did), you will see that the legislature enacted this amendment to clarify the
law rather that change it. Finally, you filed your motion for attorneys’ fees after
the enactment of the amendment.
Finally, there are enough authorities to show that the appellate courts are
unlikely to grant your appeal since they will see the big picture that the plaintiff
ended the litigation and dismissed the individual employer when he obtained a
favorable result, i.e. judgment and a ruling holding him the prevailing party and
granting his attorney’s fees.
You may lose your appeal and be stuck with plaintiff's costs over a small
amount you are trying to win now. Technically, you should not have received the
costs, and I will appeal the grant of costs as a cross appeal.
Svetlana Shirinova
PS. I will be seeing an appellate attorney next week. I will let you know ifI
change my position after that visit.
Preview
MMO SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jun-23-2014 3:24 pm Case Number: CGC-13-532434 Filing Date: Jun-23-2014 3:23 Filed by: ROSSALY DELAVEGA Juke Box: 001 Image: 04528020 DECLARATION OF SEMEYON GOFMAN VS. WHITTIER ENTERPRISE LLC, et al 001004528020 Instructions: Please place this sheet on top of the document to be scanned. ‘seCo won aA wn FF YW NY = yw Ny YR NY NY KR Se eB Be ewe Be ee eB ee aA A B Yb NY —§ FS © OAK DH FF Ww NY KF S&S © 3° Qe, Svetlana M. Shirinova (SBN 236411) AN Fp Rtkae LAW OFFICES OF SVETLANA M. SHIRINOVA Supe ISCO C 785 Market Street, 16th Floor ORC puny San Francisco, California 94103 Telephone: (415) 947-0703 Facsimile: (415) 947-0733 Email: Svetlana@svetlaw.com Attorney for Plaintiff Semeyon Gofman SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO SEMEYON GOFMAN, an individual, Case No: CGC-13-532434 Plaintiff, DECLARATION OF SVETLANA M. SHIRINOVA RE: OSC v. 1 Date: July 8, 2014 ' WHITTIER ENTERPRISE, LLC. Time: 10:30 AM Dept.: 610 Defendant. Page 1 Declaration of Svetlana M. Shirinova re OSCwu F&F Ww NY = Co ont DN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I, Svetlana M. Shirinova, declare: 1. I am the attorney for Plaintiff Semeyon Gofman. I make this Declaration in response to the Court’s Order to Show Cause. The following facts are true, to the best of my personal knowledge. If called as a witness, I could and would testify to the truth of the matters stated herein. 2. On August 12, 2013, Plaintiff timely accepted Defendant Whittier Enterprise, LLC’s (“Whittier”) C.C.P. §998 Offer to Compromise this case by entry of judgment in favor Plaintiff against Whittier for $10,000. 3. October 17, 2013, Plaintiff filed its acceptance of Whittier’s C.C.P. §998 Offer. 4, On February 3, 2014, the Court granted Plaintiff's Motion for Attorneys Fees as Prevailing Party in the amount of $5,000 as against Whittier. 5. On or about May 12, 2014, Plaintiff lodged with the court for filing a Request for Default Judgment against Whittier. On May 12, 2014, the Default Clerk rejected this request because “[t]he Offer to Compromise Judgment Must Match the Amount in the Offer to Compromise.” 6. On May 29, 2014, Plaintiff filed a “Notice of Entry of Order” regarding the court’s order denying defendant’s motion for attorneys’ fees as prevailing party. 7. Plaintiff, via his counsel, has communicated an offer to Whittier’s counsel to resolve the $5,000 still owed to Plaintiff for attorneys’ fees and costs as prevailing party, whereby Whittier would pay Plaintiff an amount less than the $5,000 in attorneys’ fees and costs ordered by the Court on February 3, 2014. Whittier’s counsel refused the offer and has further demonstrated a lack of cooperation to resolve this case. (Exhibit A, email from attorney Gentino re: resolution of this matter) 8. I sent attorney Gentino another email to reason with him to finalize this matter (Exhibit B). 9. Accordingly, Plaintiff is filing herewith a Request for Entry of Judgment, Page 2 Declaration of Svetlana M. Shirinova re OSCoO oN KD HW FF Ww Nn yw N YR RN DY Be ee Be Be Be Be Be Se a a F FBS F&F SF CHA BDAA BF wWw NH SK SC © ° requesting that the Court enter Judgment in favor of Plaintiff for $10,000 pursuant to the accepted C.C.P. §998 offer, plus $5,000 to Plaintiff for attorneys’ fees and costs as the prevailing party as ordered by the Court on February 3, 2014. 10. In light of the foregoing, Plaintiff requests that the Court: (1) take the OSC hearing off calendar and (2) not dismiss this case until a final judgment can be entered for $10,000 in favor of Plaintiff against Whittier plus the $5,000 to Plaintiff for attorneys’ fees and costs as the prevailing party as ordered by the Court on February 3, 2014 or until the parties can reach a final settlement agreement. I declare under the penalty of perjury under the laws of California that the foregoing is true and correct. Dated: uno? 2014 LAW OFFICES OF SVETLANA M. SHIRINOVA Atte, Le, Svetlana M. Shirinova Attorneys for Plaintiff Page 3 Declaration of Svetlana M. Shirinova re OSC TesEXHIBIT A© 3° Svetlana Shirinova From: Robert Gentino Sent: Monday, May 26, 2014 6:35 PM To: Svetlana Shirinova; Eric Lightman Subject: Gofman v. Whittier Svetlana: I appreciate your call last week trying to resolve this. As you know, the Court granted Alex $570 in costs as prevailing party, but erroneously denied his motion for atty fees, ruling that Alex failed to demonstrate the action was filed "in bad faith" - a requirement that only took effect on Jan. 1, 2014, five months after Alex prevailed by dismissal in Aug. 2013. Because Alex received a cost award, he was obviously the prevailing party, and Labor Code 218.5 in effect throughout 2013 mandates atty fees to prevailing party. Thus, we intend to appeal the erroneous denial of mandatory atty fees to Alex in effect upon dismissal. If we prevail on appeal, Alex's appellate costs and fees will also be recoverable which may dwarf the $10,000 windfall Gofman already received. Before we appeal, we offer to settle this entire matter by mutual release and full satisfaction. This offer shall expire in 10 days. By now, you know that I don't bluff and will appeal this, if necessary, to recover mandatory fees. If you want to risk substantial appellate fees and costs against Gofman, I will respect that. Robert Gentino, Esq. Panasonic Building 3330 Cahuenga Blvd. West #303 Los Angeles, CA 90068 818.509.7272 Confidentiality Notice: This e-mail may be privileged and confidential for the sole use of the intended recipient. Any other use, distribution, or disclosure is prohibited. If you are not the intended recipient, kindly notify me and delete this e-mail. Thank you.EXHIBIT B© ° SVETLANA M. SHIRINOVA Attorney at Law 785 Market Street, 16th Floor San Francisco, CA 94103 Tel.: (415) 947-0703 Fax: (415) 947-0733 E-mail: svetlana@svetlaw.com June 5, 2014 Via Electronic Mail Re: Gofman v. Whittier Enterprises, LLC, et al. Mr. Gentino: You informed me you would appeal the court’s denial of attorney’s fees to the defendant - individual employer under California Labor Code section 218.5. I do not believe that you will prevail on appeal and here is why. Plaintiff filed his complaint alleging causes of action under FEHA and wage and hour law against the LLC and its individual owner as an alter ego. Such complaint was warranted on information and belief. Both defendants filed a demurrer. The LLC (contemporaneously with filing of the demurrer) presented a 998 offer for a judgment in plaintiff's favor. The plaintiff accepted the offer and dismissed the individual owner without prejudice. The individual owner never filed an answer with a prayer requesting attorney’s’ fees. There was never a hearing on the demurrer. The court could have overruled your demurrer or could have granted leave to amend and the plaintiff could have amended the complaint. After accepting the 998 offer, plaintiff moved for attorney’s fees; the court granted his motion ruling he was the prevailing party. You failed to pay the fees and moved to ask for attorney’s allegedly incurred defending the individual owner under the labor Code of 218.5. The court denied your motion. Now are planning to appeal the decision.© 3° The standard of review on issues of attorney's fees and costs is abuse of discretion, and the decision of the trial court will only be disturbed when there is no substantial evidence to support the trial court's findings or when there has been a miscarriage of justice. (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 882.)To prevail on your appeal you will need to convince the appellate court of: 1) Individual Defendant were entitled to attorney’s fees under 218.5 2) Individual Defendant was the prevailing party 3) Cal Labor Code 218.5 as amended is not applicable to your case Individual Defendant is not entitled to attorney’s fees because you Never requested the attorney’s fees on behalf of the individual defendant in the prayer of your Answer. You never filed an Answer, never submitted a prayer. Cal Labor Code 218.5 states: “(a) In any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorney's fees and costs to the prevailing party if any party to the action requests attorney's fees and costs UPON THE INITIATION OF THE ACTION. However, if the prevailing party in the court action is not an employee, attorney's Sees and costs shall be awarded pursuant to this section only if the court finds that the employee brought the court action in bad faith. This section shall not apply to an action brought by the Labor Commissioner. This section shall not apply to a surety issuing a bond pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code or to an action to enforce a mechanics lien brought under Chapter 4 (commencing with Section 8400) of Title 2 of Part 6 of Division 4 of the Civil Code (b) This section does not apply to any cause of action for which attorney's fees are recoverable under Section 1194. Cal. Lab. Code § 218.5 (West) Because there is no prayer and no pleading requesting attorney’s for the individual defendant, the court of appeal may not uphold your request. I have checked the appellate courts’ decisions on this issue and on other statutory attorneys’ fees awards. The courts get technical and most likely will deny your | appeal by saying that the sufficiency of the pleading was never tested by the court 2© ° and your demurrer was never heard and you did not property enter a prayer specifically under 218.5 on behalf of Mezeonchik for attomey’s fees. I have seen the appeals denied for lack of request in the initial pleadings. 2) Individual Defendant was NOT the prevailing party, because he was dismissed without prejudice and because no final judgment was issued in his favor. Here, in Gofiman, you will have a hard time proving that the individual defendant was the prevailing party, as explained before. First, no final judgment was entered, the dismissal was without prejudice and you, yourself, have argued in your Reply to the Opposition that your attorneys’ fees motion was “timely because no notice of entry of dismissal was ever filed”. The appellate court will read your argument and will notice the contradiction. Prevailing party is defined as follows under the Cal.C.C.P. § 1032(b). “When a plaintiff voluntarily dismisses an action with prejudice, the defendant is ordinarily one in whose favor a dismissal has been entered, and therefore qualifies as a “prevailing party” who is entitled as a matter of right to recover costs unless another statute expressly provides otherwise. West's Ann.Cal.C.C.P. § 1032(b). Carver v. Chevron U.S.A., Inc., 97 Cal. App. 4th 132, 118 Cal. Rptr. 2d 569 (2002)” During the oral argument the judge addressed dismissal without prejudice v. dismissal with prejudice and this went into his analysis in denying your motion. The appellate courts know the difference and you are unlikely to prevail. 3) Cal Labor Code 2189.5 as amended applies to the ruling. Here is why. You filed you motion after the statute was amended. You had a choice of filing your motion while the amendment was still pending, but you waited. The appellate court will note this. The California Supreme Court has established a two-step analysis to determine whether an amended statute should apply to actions that occurred before its enactment. First, courts must determine whether the amendment changes or merely clarifies the law. Id. If the amendment merely clarifies existing law, it is not retrospective “because the true meaning of the statute remains the same.” quoting Western Sec. Bank v. Superior Court, 15 Cal. 4th 232, 243 (1997).© 3 If you check the legislative intent for the amendment of Labor Code 218.5 (as I did), you will see that the legislature enacted this amendment to clarify the law rather that change it. Finally, you filed your motion for attorneys’ fees after the enactment of the amendment. Finally, there are enough authorities to show that the appellate courts are unlikely to grant your appeal since they will see the big picture that the plaintiff ended the litigation and dismissed the individual employer when he obtained a favorable result, i.e. judgment and a ruling holding him the prevailing party and granting his attorney’s fees. You may lose your appeal and be stuck with plaintiff's costs over a small amount you are trying to win now. Technically, you should not have received the costs, and I will appeal the grant of costs as a cross appeal. Svetlana Shirinova PS. I will be seeing an appellate attorney next week. I will let you know ifI change my position after that visit.