Superior Court of California 

County of Los Angeles 

Department 78 

 

SUSAN HANNAFORD, et al.,

Plaintiffs, 

vs. 

KEVIN RYAN BEHRENDT, et al., 

Defendants. Case No.: 19STCV11008

MOTION TO DISMISS FILED BY KEVIN RYAN BEHRENDT AND OTHERS

The motion to dismiss filed by Defendants Behrendt, Jeremy Shepherd, and Hisano Shepherd is GRANTED without prejudice as to Plaintiffs Emanuel M.H., Jr. and Bella M.H.

Hence, Defendants Kevin Ryan Behrendt, Jeremy Shepherd and Hisano Shepherd are dismissed without prejudice.

The Court sets an OSC Re: Dismissal of Defendant Google LLC (served on 2/6/2020) for Failure to Request Entry of Default Pursuant to CCP Section 581(g), 583.410 and California Rule of Court 3.110(g) for December 12, 2023 at 8:30 a.m.

The Court sets a Status Conference for December 12, 2023 at 8:30 a.m. Defendant Scott Lambourne and Plaintiffs are ordered to appear remotely or in person.   

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order. Notice should be provided to Defendant Scott Lambourne and Google LLC, as well as to Plaintiffs.

FACTUAL BACKGROUND

On October 30, 2019, Plaintiffs Susan Hannaford, Marquessa Margolin, Bella M.H., a minor, and Emmanuel M.H., Jr., a minor, filed the First Amended Complaint (“FAC”) for (1) child endangerment, (2) libel per se, (3) slander per se, (4) libel per quod, (5) slander per quod, (6) false light, (7) statutory violation of right of publicity, (8) common law violation of right of publicity, (9) stalking, (10) aggravated stalking, (11) civil extortion, (12) attempted extortion, and (13) conspiracy.   

 

The allegations of the FAC are as follows.  Plaintiff Susan Hannaford is “an award-winning renowned luxury real estate developer and award nominated actress best known for playing Kitty Sullivan in the long-running television drama ‘The Sullivans’ which was viewed in over 70 countries worldwide and featured actors such as Sam Neill, Kylie Minogue and Mel Gibson.”  (FAC ¶ 12.)  Hannaford’s daughter, Plaintiff Marquessa Margolin, is “a luxury real estate developer, luxury event producer, entrepreneur and founder of the luxury diamond jewelry brand, Marquessa Fine Diamonds™. . . . In addition, Ms. Margolin is an accomplished law academic scholar, having graduated in the Bachelor of Laws (LL.B) with Distinction from Central Queensland University and having provisionally completed the Master of Laws (LL.M) degree from the prestigious Bond University and is currently completing her PhD (Law) in the field of defamation law. ”  (FAC ¶¶ 18-19.)  Plaintiffs Bella M.H. and Emmanuel M.H., Jr. are Hannaford’s grandchildren.   

 

Defendants Jeremy Shepherd and Hisano Shepherd rented the Palazzo Beverly Hills (“Palazzo”) via Airbnb for a commercial event.  The Palazzo is suggested to be a “family home” for Plaintiffs.  (FAC ¶ 66.)  Because of damage to a piano at the Palazzo, the Shepherds' $10,000 security deposit was not returned.  (See FAC ¶ 22.)  The Shepherds and their attorney, Defendant Kevin Behrendt, then engaged in an extortion scheme to obtain their security deposit.  A component of the scheme was the threat of defamation followed by actual statements suggesting, among other things, that Plaintiffs are scammers with respect to the Palazzo and that Hannaford and/or Margolin are or were subject to various criminal proceedings.  (FAC ¶ 65.)  Such statements were circulated for months to millions of readers on various online platforms, websites, media outlets, and tabloid magazines.  (See, e.g., FAC ¶¶ 4, 60-61, 90, 116.)  Defendants also hired “thugs” and paparazzi to threaten, intimate, stalk, and harass Plaintiffs.  Additionally, Defendants threatened to file and did in fact file a class action lawsuit against Plaintiffs Hannaford and Margolin relating to the Palazzo.  (FAC ¶¶ 244, 255.)    

PROCEDURAL HISTORY 

On April 17, 2019 Plaintiffs filed their original complaint in this action alleging four causes of action:  

 

1. Fraud  

2. Violation of Penal Code §473  

3. Defamation  

4. False Light  

 

On October 30, 2019 Plaintiffs filed their First Amended Complaint (“FAC”), adding as defendants, inter alia, News Corporation and various individuals and entities associated with News Corporation. The FAC alleged the following 18 causes of action:  

 

1. Fraud – Intentional Misrepresentation  

2. Fraud – Concealment  

3. Defamation per se (Libel)  

4. Defamation per se (Slander)  

5. Defamation (libel)  

6. Defamation (slander)  

7. False Light  

8. Intentional Interference with Prospective Economic Advantage 

9. Forgery  

10. Violation of the Statutory Right to Publicity  

11. Violation of the Common Law to Publicity  

12. Sexual Harassment  

13. Negligent Supervision  

14. Civil Conspiracy  

15. Unjust Enrichment  

16. Intentional And interference with Personal Property  

17. Declaratory Relief  

18. Injunctive Relief 

On January 31, 2020, Kevin Behrendt, Hisano Shepherd, and Jeremy Shepherd answered.

On July 2, 2020, the Court granted the Anti-SLAPP filed by Hisano Shepherd, Kevin Behrendt, and Jeremy Shepherd as to the second through sixth causes of action asserted by Hannaford.

On August 19, 2020, the Court granted the Motion for Judgment on the Pleadings filed by Kevin Behrendt, Jeremy Shepherd, and Hisano Shepherd in part as to the ninth through thirteenth causes of action.

On January 6, 2022, the Court granted Defendants’ motion for summary judgment as to the claims asserted by Hannaford and Margolin. The court also granted the motion as to the fourth and fifth causes of action asserted by the minor Plaintiffs.

On March 11, 2022, Plaintiff’s counsel, Micheal Hartman’s, application for appointment as guardian ad litem for Plaintiff Emmanuel M.H. was granted.

On July 25, 2023, Defendants Behrendt, Jeremy Shepherd, and Hisano Shepherd (“Movants”) filed the instant motion to dismiss.

The remaining Defendants in this action are Scott Lambourne, Google LLC, Kevin Ryan Behrendt, Jeremy Shepherd, and Hisano Shepherd. 

DISCUSSION 

Movants move to dismiss the remaining causes of action against them on the grounds that the minor Plaintiffs have not appeared in this case, secured counsel, or appointed a guardian ad litem since the action began in 2019.

Legal Standard 

“The court may in its discretion dismiss an action for delay in prosecution. . ..”  (Code Civ. Proc. section 583.410.)  However, a court must first find either: (1) service has not been effectuated within two years since commencement of the action, (2) an action is not brought to trial within three years after it is commenced against a defendant, or (3) a new trial is granted and the action is not brought to trial within a certain time.  (Code Civ. Proc. section 583.420, subd. (a).) 

After California Code of Civil Procedure section 583.420, subdivision (a) is satisfied, the Court analyzes a variety of relevant factors, including those prescribed in California Rules of Court, rule 3.1342, subdivision (e). Those factors include:  

(1) The court’s file in the case and the declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process; 

(2) The diligence in seeking to effect service of process; 

(3) The extent to which the parties engaged in any settlement negotiations or discussions; 

(4) The diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party; 

(5) The nature and complexity of the case; 

(6) The law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case; 

(7) The nature of any extensions of time or other delay attributable to either party; 

(8) The condition of the court’s calendar and the availability of an earlier trial date if the matter was ready for trial; 

(9) Whether the interests of justice are best served by dismissal or trial of the case; and 

(10) Any other fact or circumstance relevant to a fair determination of the issue.

Courts must determine the credibility of the plaintiff’s explanation and, if not satisfied that the plaintiff has met the burden of showing an excusable delay, may dismiss the action without considering whether the defendant was prejudiced by the delay. (Dubois v Corroon & Black Corp. (1993) 12 CA4th 1689, 1695–1696.) Where the court finds that the plaintiff has an excusable delay, the judge should then consider the prejudice the defendant has suffered from the delay. (Lopez v State (1996) 49 CA4th 1292, 1295.) A court may not dismiss a case when a trial date has been set and the case is ready for trial. (Corrinet v Bardy (2019) 35 CA5th 69, 77–78.)

Analysis

Movants move  to dismiss this action, arguing that this case is more than four years old and the two remaining Plaintiffs have not been diligent in prosecuting this action. 

This matter commenced on October 30, 2019 with four Plaintiffs, Susana Hannaford, Marquessa Margolin (Hannaford’s daughter), and minors Bella M.H. and Emmanuel M.G. Jr. (Margolin’s children). Movants’ motion for summary judgment was granted as to Hannaford and Margolin on January 6, 2022 and entered in August 2022. Although summary judgment was granted in favor of movants as to Hannaford and Margolin, Plaintiffs’ claims against Defendants Google and Lambourne remain, as well as the minor Plaintiffs’ claims as to the Movants here.

The parties first dispute whether Plaintiffs have delayed appointing a guardian ad litem for the minor Plaintiffs. Movants also argue that the Emmanuel and Bella have not been subject to discovery, cannot proceed with trial, and do not have a service address due to the failure to appoint a guardian ad litem. 

Litigation on behalf of a minor must be conducted by a guardian, conservator of their estate, or a guardian ad litem appointed by the judge of the court in which the action is pending because minors lack legal capacity to make decisions. (Code Civ. Proc., section 372(a).) A court may appoint a guardian ad litem on an ex parte application or on its own motion. (Sarracino v Superior Court (1974) 13 C3d 1, 12; Marriage of Caballero (1994) 27 CA4th 1139, 1148–1149.) A non-attorney guardian ad litem may not appear in properia persona on behalf of a minor and to do so would constitute the unauthorized practice of law. (J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 969.)

Movants’ counsel, Jeffrey Dermer, testifies that in January 2020, he received an email from Madeline Leibreich stating Plaintiffs filed their Complaint using her name, papers, and address without her consent and that she never represented them. (Dermer Decl., ¶3.) Dermer also began raising the issue of whether the minor plaintiffs were properly before the Court ever since the first status conference before Judge Doyle. (Id., ¶¶4-5.) The minor Plaintiffs never signed the pleadings through a guardian ad litem or through counsel, never secured counsel or a guardian ad litem, do not have a service address, and have not been subject to discovery. (Id., ¶8.) Although he would like to serve them with discovery, counsel has been unable to do so because they have not appeared and have no service address. (Id.)

Margolin and Hannaford opposed this motion for and on behalf of the minor Plaintiffs. Although Margolin and Hannaford remain as Plaintiffs in this matter because their claims against Defendants Google and Lambourne remain, they may not act on behalf of any minor Plaintiffs because they have not been appointed as the minors’ guardians ad litem. Even if they were appointed as guardians ad litem, they would not be able to proceed without counsel because they are not attorneys. Although they may appear in pro per in their individual capacity, Margolin and Hannaford’s opposition filed on behalf of the minor plaintiffs constitutes the unauthorized practice of law. 

Margolin testifies that Emmanuel M.H. is no longer a minor because he turned 18 in October 2023. (Margolin Decl., ¶6.) Margolin also testifies that Emmanuel’s date of birth is incorrect on the guardian ad litem application filed by her former counsel. (Id., ¶¶3-5.) 

Emmanuel M.H., Jr., if he is no longer a minor, needs to appear and represent himself or have an attorney represent him. Plaintiffs Margolin and Hannaford may not file pleadings on his behalf or make arguments to the Court on his behalf.

According to Court records, a guardian ad litem, Michael Hartman, Esq., was appointed for Emanual M.H., Jr. on March 11, 2022. Apparently, Hartman died some time ago although neither party states when he passed away. Movants suggest that it was shortly after the date of this filing.

The application and order contained in the court records does not contain a proof of service. Movants’ Counsel contends that service was not effectuated and that Mr. Hartman never communicated with Counsel or made any appearances for Emmanuel M.H., Jr. or filed any documents in the case save for a 170.6 challenge filed on March 10, 2022, one day before Hartman was appointed as guardian ad litem.

With respect to Plaintiff Emmanuel M.H., Jr. the action was pending for multiple years before a guardian ad litem was appointed. Apparently, shortly thereafter the guardian ad litem died and did not litigate the case in any way. Indeed, Movants were not aware that a guardian ad litem had ever been appointed as they were not served.

With respect to Plaintiff Bella M.H. a guardian ad litem has never been appointed.

Movants have been prejudiced by the lack of diligence in the prosecution of this matter. They have not been able to serve discovery on these Plaintiffs and because of this lack of discovery they are unable to prepare for the trial set for March 25, 2024 at 9:30 a.m.  

Even considering this opposition, which should really be disregarded as it constitutes the unauthorized practice of law, no explanation is provided for the extreme lack of diligence in prosecuting this case. The matter has not been brought to trial within three years and hence qualifies for dismissal under the statute.

The Court exercises its discretion and dismisses the action as to Emmanuel M.H., Jr.’s and Bella M.H.’s claims against Movants. The dismissal is without prejudice pursuant to California Code of Civil Procedure Section 581(g).

DATED:  October 30, 2023 

_______________________

Hon. Jill Feeney  

Judge of the Superior Court