Judge James C. Chalfant, Case 22STCV10072 2022-09-27 Tentative Ruling

Shenzhen Deji Air Agency Ltd. v. Elyakim Eldad Lieberman, and Golden Wings Jet Holding LLC, 22STCV10072

Tentative decision on motion to reconsider application for right to attach order: denied

Defendant Golden Wings Jet Holding LLC (“Golden Wings”) moves for reconsideration of the court’s order granting Plaintiff Shenzhen Deji Air Agency Ltd. (“Shenzhen”)’s application for a right to attach order in the amount of $1,121,000.

The court has read and considered the moving papers, opposition,[1] and reply declaration (not accompanied by a memorandum), and renders the following tentative decision.

Plaintiff Shenzhen filed this Complaint against Defendant Golden Wings and its manager Defendant Elyakim Eidad Lieberman (“Lieberman”) on March 23, 2022, alleging causes of action for (1) breach of contract, (2) breach of the covenant of good faith and fair dealing, (3) unjust enrichment, and (4) fraud/misrepresentation. The Complaint alleges as follows.

On May 19, 2021, the parties entered into an Air Cargo Jet Leasing Agreement and supplemental agreement (collectively “Agreement”), whereby Golden Wings would provide a cargo jet with two flights per week between Shenzhen Bao'an Airport and Los Angeles International Airport (“LAX”), starting June 20, 2021. The parties later changed the Chinese departure point to Hong Kong International Airport. Pursuant to the Agreement, Shenzhen paid $540,000 on May 23, 2021.

On July 28, 2021, Golden Wings signed a Confirmation that it would arrange for four cargo jet flights on August 12, 15, 22, and 29, 2021. Golden Wings was to refund payments made if the flights were cancelled; this included the $540,000 made before and $581,000 paid in September 2021.

Golden Wings has not made any of the required flights and demands for refunds have failed. Shenzhen seeks $1,121,000 in compensatory damages, interest at the legal rate, punitive damages, restitution, equitable relief, and attorney’s fees and costs.

On April 7, 2022, Plaintiff Shenzhen served Defendant Golden Wings with the Complaint and Summons by substitute service, effective April 17, 2022.

On April 13, 2022, Plaintiff Shenzhen served Defendant Lieberman with the Complaint and Summons by substitute service, effective April 23, 2022.

On June 13, 2022, Shenzhen filed a declaration of intent to file a demurrer to both Answers.

On June 17, 2022, Shenzhen served Defendant Golden Wings with the application for right to attach papers.

On July 28, 2022, the court granted Shenzhen’s application for a right to attach order against Defendant Golden Wings in the amount of $1,121,000, requiring a $10,000 bond .

On August 29, 2022, Plaintiff Shenzhen’s counsel, James Cai, Esq., filed a motion to be relieved as counsel. Dept. 20 (Hon. Kevin C. Brazile) will hear that motion the same day as this court hears this motion.

Code of Civil Procedure section 1008(a) (“section 1008(a)”) provides for reconsideration of court orders. Section 1008(a)’s motion to reconsider is broad in scope and allows any party affected by the order to seek reconsideration and modification, amendment or vacation of prior orders. Relief under section 1008(a) is strictly limited; motions to reconsider must be brought within 10 days of service of written notice of the original order.

A motion for reconsideration constitutes the exclusive means for a party seeking modification, amendment or revocation of an order. Morite of Calif. v. Superior Court, (1993) 19 Cal.App.4th 485, 490. To be entitled to reconsideration, a party must show (1) new or different facts, and (2) a satisfactory explanation for failing to produce such evidence earlier. Kalivas v. Barry Controls Corp., (“Kalivas”) (1996) 49 Cal.App.4th 1152, 1160-61. The requirement of satisfactory explanation for failing to provide the evidence earlier can only be described as a strict requirement of diligence. Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690. A motion for reconsideration cannot be granted on the ground that the court misapplied the law in its initial ruling. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500. A mistake based on ignorance of law is not a proper basis for reconsideration. Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 670.

Relief under CCP section 1008(a) is strictly limited. A motion to reconsider must be brought within ten days of service of written notice of the original order. Kalivas, supra, 49 Cal.App.4th at 1160.

On June 17, 2022, Shenzhen applied for a right to attach order against Defendant Golden Wings for $1,121,000. Lieberman Decl., ¶1, Ex. A. Shenzhen filed its reply on July 21, 2022, accompanied by a Declaration of Shengjie Li (“Li”). Lieberman Decl., ¶¶ 2-3, Exs. B-C. This reply declaration included evidence that Golden Wings was supposed to arrange for flights on July 15 and September 6, 2021 but failed to do so. Ex. C (Li Reply Decl., ¶¶ 3-4, Exs. B-C). The declaration asserted that, pursuant to its obligations under the Agreement, Shenzhen paid $540,000 on May 23 and $581,000 on September 8, 2021. Ex. C (Li Reply Decl., ¶7). Finally, the declaration attached a November 6, 2021 email in which Liberman apologized for repeated delay of the September 6 flight, stating that a refund was in process. Ex. C (Li Reply Decl., ¶5, Ex. D).

On July 28, 2022, the court granted Shenzhen’s right to attach application against Defendant Golden Wing. Lieberman Decl., ¶5, Ex. D; Lieberman Reply Decl., ¶5. The court cited Li’s reply declaration in its determination that Shenzhen had demonstrated a probability of success on its claim. Lieberman Decl., ¶¶ 5-6, Ex. D.

In granting the right to attach order, the court stated that no writ could issue until Shenzhen posted a $10,000 bond. Ex. D. To date, Shenzhen has not done so. Liberman Reply Decl., ¶5.

Due to the number of texts and other documents the parties have exchanged, both as to the Agreement and other transactions, Golden Wings was unable to review all documents until after the hearing. Lieberman Decl., ¶7. Aggravation of an old knee injury has also reduced the amount of time Golden Wings’ manager Lieberman can spend on this case, as he has undergone treatment at UCLA several times per week. Lieberman Reply Decl., ¶2.

On July 4, 2021, Shenzhen asked for the landing number for the next flight, on July 15, 2021. Lieberman Decl., ¶8, Ex. E. Lieberman warned Shenzhen that Golden Wings would not issue the number until it received payment. Otherwise, the flight would have to be “concealed.” Lieberman Decl., ¶8, Ex. E. On July 6, 2021, Shenzhen explained that it was “in the most troubles business Friday of settlement,” so it had only remitted the first half of the payment with the second to come soon. Lieberman Decl., ¶8, Ex. F. Lieberman replied that the July 15 flight would be cancelled because Golden Wings had not received payment. Lieberman Decl., ¶8, Ex. F.

On July 27, 2021, Golden Wings assented that Shenzhen could try to pay within the next two days. Lieberman Decl., ¶8, Ex. G. Shenzhen asked if Golden Wings would share information about the Hong Kong Airlines flight if Shenzhen paid the next day. Lieberman Decl., ¶8, Ex. G.

On July 28, 2021, Shenzhen informed Golden Wings that because the Bank of China’s exchange time was two days, Shenzhen had cancelled the first flight on August 5 and rescheduled it for August 8. Lieberman Decl., ¶8, Ex. H. On July 29, Shenzhen again asked for the landing number and again Lieberman insisted Golden Wings did not have payment and would not release the number until it did. Lieberman Decl., ¶8, Ex. H.

These text messages demonstrate that Golden Wings only cancelled its July 15 flight because Shenzhen had not paid under the Agreement until September 2021. Lieberman Reply Decl., ¶3. While Shenzhen paid $540,000 in September 2021, Lieberman had to front costs for reservations, communicate with contacts, and pay penalties when Shenzhen cancelled and rescheduled flights. Lieberman Reply Decl., ¶3. During July, Shenzhen did not ask for a refund until after Golden Wings fronted those costs, and the text messages between the parties show that Shenzhen knew that. Lieberman Reply Decl., ¶3.

On November 4, 2021, Shenzhen asked Lieberman to write apology letters to send to its clients for the delays in the flights. Lieberman Decl., ¶9, Exs. I-J. These letters were never an admission of fault from Golden Wings like Shenzhen later claimed. Lieberman Decl., ¶9.

Defendant Golden Wings moves for reconsideration of the right to attach order based on multiple texts that show it cancelled flights only because it had not received payment from Shenzhen under the Agreement. Lieberman Decl., ¶8, Exs. E-H. Golden Wings also submits evidence that Liberman’s email that the court construed as an admission by Golden Wings was authored only after Shenzhen asked for it so that Shenzhen could apologize to its own clients. Lieberman Decl., ¶9, Exs. I-J.

A motion to reconsider must be filed within ten days of service of written notice of the original order. Kalivas, supra, 49 Cal.App.4th at 1160. The court granted the right to attach order on July 28, 2022. As Golden Wings acknowledges, the parties waived notice. Mot. at 5, n. 1. Thus, Golden Wings had until August 8, 2022 within which to file its motion to reconsider. The motion filed on August 8 is timely.

To be entitled to reconsideration, a party must show (1) new or different facts, and (2) a satisfactory explanation for failing to produce such evidence earlier. Kalivas v. Barry Controls Corp., (“Kalivas”) (1996) 49 Cal.App.4th 1152, 1160-61. The requirement of satisfactory explanation for failing to provide the evidence earlier can only be described as a strict requirement of diligence. Garcia v. Hejmadi (“Garcia”) (1997) 58 Cal.App.4th 674, 690.

Golden Wings has provided new evidence and the issue is whether it exercised due diligence by providing a satisfactory explanation for its inability to find and present the text messages at the hearing. Golden Wings asserts that it was unable to provide these messages sooner because Lieberman had to sort through many irrelevant communications while nursing a chronic knee injury. Lieberman Decl., ¶7; Lieberman Reply Decl., ¶2.

Golden Wings’ argument is an explanation why its principal and/or counsel could not review the evidence it had on hand in time for the right to attach hearing. Golden Wings had from July 21, when the reply declaration was filed and served, until the July 28 hearing to review the Li declaration. As Shenzhen asserts in opposition, if evidence is available and easily obtainable, the failure to present it lacks satisfactory explanation. New York Times Co. v. Superior Court (2005), 37 Cal. Rptr. 3d 338, 343. Golden Wings admits that it found these messages after the hearing just by searching its own communications. Lieberman Decl., ¶7. Golden Wings should have made these efforts before the hearing or else noted that fact to the court at the hearing and perhaps asking for a continuance.[3]

If, arguendo, the court is obligated to reconsider, the motion would be denied. Golden Wings presents new evidence concerning the text messages between the parties. For the July 15^th flight, Golden Wings presents evidence of a July 4, 2021 request by Shenzhen for the landing number for the next flight, Lieberman’s warning that Golden Wings would not issue the number until it received payment, Shenzhen’s July 6, 2021 statement that it was “in the most troubles” and only remitted the first half of the payment with the second to come soon, and Lieberman’s cancelation of the July 15 flight because Golden Wings had not received payment. Lieberman Decl., ¶8, Ex. F.

Golden Wings presents additional evidence that on July 28, 2021 Shenzhen canceled an August 5 flight and reset it for August 8, on July 29 asked for the landing number and again Lieberman insisted Golden Wings would not release the number until it received payment. Lieberman Decl., ¶8, Ex. H.

While these text messages support Golden Wings’ position about the July 15 flight, Golden Wings admits that Shenzhen paid $540,000 in September 2021. Golden Wings argues that it to front costs for reservations and pay penalties when Shenzhen cancelled and rescheduled flights, but it presents no details and no documentary evidence supporting this position. Thus, its implicit contention that it “used up” the $540,000 is unsupported.

Additionally, Golden Wings’ explanation for the November 6, 2021 apology email – that Shenzhen asked for it to send to its clients to explain the delays – does not explain why Golden Wings was willing to send it. See Lieberman Decl., ¶9, Exs. I-J. Contrary to Golden Wings’ argument, the email is an admission of fault by Golden Wings.

Ultimately, neither party has presented detailed evidence concerning the number of flights, the payments by Shenzhen, and cancelation of flights. The amount of the right to attach order may well be wrong, but Golden Wings’ new text messages do not compel a finding that the court ruled in error. Finally, it is worth noting that the issue may be moot because Shenzhen has not posted a $10,000 bond to obtain a writ and there is no reason to believe that it will do so.

[1] Plaintiff failed to lodge a courtesy copy of the opposition brief in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Its counsel is admonished to provide courtesy copies for all future filings in this case.

[2] In its motion, Golden Wings cites to Motiva Grp., Inc. v. Global Impact Group., Inc. (2019), 2019 WL 322738 an unpublished opinion that cannot be cited uner CRC 8.1115(a). Mot. at 5.

[3] Golden Wings alternatively asks that the court sua sponte to reconsider the right to attach order. Mot. at 6. The Supreme Court has acknowledged that if a court believes one of its prior interim orders was erroneous, whether by flash of inspiration or suggestion of a party, it should be able to correct that error no matter how it came to acquire that belief. Le Francois v. Goel (2005), 35 Cal. 4th 1094, 1108. The court declines to do so.