Judge Teresa A. Beaudet, Case 22STCV30789 2023-05-18 Tentative Ruling

Plaintiffs Shana Levin and Tamara Levin, an individual and as Trustee of The Michael Arnold Levin Irrevocable Trust, Dated February 13, 2007 (jointly, “Plaintiffs”) filed this action on September 20, 2022 against Defendants JosLevin Realty Corp. of L.A. (“JLR”), Marci Clapkin Weiser, Andrew Clapkin, and Dina Marshall.

Plaintiffs filed the operative First Amended Complaint on November 14, 2022, asserting causes of action for (1) derivative claim for conversion, (2) derivative claim for breach of fiduciary duty, (3) derivative claim to invalidate interested director transactions, (4) direct claim for removal of directors, and (5) derivative claim for accounting.

JLR now moves “for an order affirming that counsel of record for JosLevin shall be Valensi Rose, PLC, and to strike improperly filed pleadings.” No opposition to the motion was filed.

In its notice of motion, JLR states that the instant motion is made pursuant to Code of Civil Procedure section 128 and Code of Civil Procedure section 436. (Mot. at p. ii:10-11.)

JLR cites to Code of Civil Procedure section 128, subdivisions (a)(1)-(3), which provide that “[e]very court shall have the power to do all of the following: (1) To preserve and enforce order in its immediate presence. (2) To enforce order in the proceedings before it, or before a person or persons empowered to conduct a judicial investigation under its authority. (3) To provide for the orderly conduct of proceedings before it, or its officers.”

JLR asserts Valensi Rose, PLC was retained to represent JLR by a majority vote of the Board of Directors of JLR on October 26, 2022. JLR also asserts that “[t]he prior law firms formerly representing [JLR] were terminated at this same duly-noticed special meeting of the board of directors on October 26, 2022.” (Mot. at p. 9:17-19.) In support of the motion, JLR provides a copy of the October 26, 2022 “Minutes of Special Meeting of Board of Directors JosLevin Realty Corp. of L.A” (herein, the “October 26, 2022 Minutes”). (Weiser Decl., ¶ 6, Ex. 6.)

The October 26, 2022 Minutes provide, inter alia, that “Marci Weiser reported that the Company has several different attorneys representing or claiming to represent the Company in various pending litigation matters involving the Company, its directors and officers or otherwise providing the Company with legal, accounting and/or other services. Those attorneys include (i) Jason Stone, Esq. of Stone & Sallus, LLP; (ii) Noel S. Cohen, Esq. of Polsinelli LLP; (iii) Steven M. Kroll, Esq. of Bent, Caryl & Kroll, LLP; (iv) Natalya Attestatova, Esq./CPA of the Law Offices of Natalya Attestatova; and (v) Jeffrey Cohen, Esq. of Cohen Business Law Group, APC.” (Weiser Decl., ¶ 6, Ex. 6, p. 2.)

In the instant motion, JLR seeks an order “affirming Valensi Rose, PLC as its counsel of record, and striking all post-termination pleadings submitted by the Polsinelli Law Firm…and Bent, Caryl & Kroll, LLP on behalf of the corporation.” (Mot. at p. 1:3-5.)

The subject October 26, 2022 Minutes provide, inter alia, that “Marci Weiser moved to terminate Noel S. Cohen, Esq. and his law firm, Polsinelli LLP, from representing the Company in any pending litigation matters or in any other matters as to which such counsel currently may be providing legal services to the Company…The motion having carried, Noel S. Cohen, Esq. and Polsinelli LLP are terminated from representing the Company in any and all pending legal matters including, without limitation, as the Company’s counsel of record in LASC Case Nos. 22STCP02372, 22STCV26492 and 22STCV30789.” (Weiser Decl., ¶ 6, Ex. 6, p. 4.)

The October 26, 2022 Minutes further provide, inter alia, that “Marci Weiser moved to terminate Steven M. Kroll, Esq. and his law firm, Bent, Caryl & Kroll, LLP, from representing the Company in any pending litigation matters or in any other matters as to which such counsel currently may be providing legal services to the Company…The motion having carried, with the exception of the legal work identified in subdivision (a) below, Steven M. Kroll, Esq. and Bent, Caryl & Kroll, LLP are terminated from representing the Company in any and all pending legal matters including, without limitation, as the Company’s counsel in LASC Case No: 22STCP02372.” (Weiser Decl., ¶ 6, Ex. 6, p. 5.)[1]

In addition, the October 26, 2022 Minutes provide, inter alia, that “Marci Weiser then moved to engage Laurie Murphy, Esq. and her law firm, Valensi Rose, to represent the Company in connection with any and all legal matters including, without limitation, representing the Company in LASC Case Nos. 22STCP02372, 22STCV26492 and 22STCV30789…The motion having carried, the Company will retain Laurie Murphy, Esq. and her law firm, Valensi Rose, to represent the Company in connection with any and all legal matters including, but not limited, representing the Company in LASC Case Nos. 22STCP02372, 22STCV26492 and 22STCV30789.” (Weiser Decl., ¶ 6, Ex. 6, p. 7.)

Based on the foregoing, and in light of the lack of any opposition, the Court finds that JLR has demonstrated good cause for an order affirming that counsel of record for JLR shall be Valensi Rose, PLC. As set forth above, pursuant to Code of Civil Procedure section 128, subdivisions (a)(2)-(3), “[e]very court shall have the power to…enforce order in the proceedings before it,” and “[t]o provide for the orderly conduct of proceedings before it, or its officers.”

Next, JLR moves to “[s]trike all improperly filed post-termination pleadings of Polsinelli and Bent, Caryl, & Kroll.” (Mot. at p. 9:22-23.)

Code of Civil Procedure section 436 provides that “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” JLR asserts that “[p]ost-termination pleadings are improper pursuant to Code of Civil Procedure Section 436(b) because these law firms, by majority vote of the Board of Directors, were terminated.” (Mot. at p. 10:2-3.)

As an initial matter, the Court notes that JLR does not specify in the motion which pleadings it seeks to strike. Thus, it is unclear what pleadings any order would be directed to.

Based on the foregoing, the Court grants JLR’s motion for an order affirming that counsel of record for JLR shall be Valensi Rose, PLC. The Court denies JLR’s motion “to strike improperly filed pleadings,” without prejudice. JLR is ordered to give notice of this ruling.

[1]Subdivision (a) provides that “[t]he Company will instruct Steven M. Kroll, Esq. and Bent, Caryl & Kroll, LLP to immediately withdraw any and all Subpoenas they have issued and/or caused to be served on behalf of the Company in LASC Case No. 22STCP02372 including, without limitation, the Subpoenas directed to Bank of America, Bank of Hope, CIT Bank, a division of First-Citizens Bank, and Merrill Lynch Pierce Fenner, and to notify the Company in writing as soon as all such Subpoenas have been withdrawn…” (Weiser Decl., ¶ 6, Ex. 6, p. 5.)

Superior Court of California

County of Los Angeles

Department 50