Judge: Teresa A. Beaudet, Case: 22STCV30789, Date: 2023-05-25 Tentative Ruling

Case Number: 22STCV30789    Hearing Date: March 21, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

            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 (“FAC”) on November 14, 2022 against Defendants Marci Clapkin Weiser, Andrew Clapkin, Dina Marshall, Sheila Clapkin, and Nominal Defendant JLR. The FAC alleges 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.

            In the FAC, Plaintiffs allege that “[t]his is a case about the gross mismanagement of the JosLevin Realty Corp. of L.A…committed over a number of years by the individual defendants Sheila Clapkin…and her children Marci Clapkin Weiser…Dina Marshall…and Andrew Clapkin…who together with Sheila’s other children, are the Company’s majority shareholders, directors and officers.” (FAC, ¶ 1.) Plaintiffs allege that “these majority shareholders operated this long-standing, family-run real estate business as their personal piggy bank for years to benefit themselves at the expense of Plaintiffs, who are the minority shareholders.” (FAC, ¶ 1.)  

            Andrew Clapkin now moves for an order “(a) appointing a guardian ad litem for Defendant Sheila Clapkin…without a conservator; (b) directing that [Andrew Clapkin]…be so appointed as guardian ad litem; but, if not [Andrew Clapkin] due to some sort of purported conflict, then (c) to the appointment of Marci Clapkin Weiser (‘Marci’) or Dina Marshall (‘Dina’) in that order…and, if not [Andrew Clapkin], Marci or Dina because of some sort of alleged conflict, then (d) Karen Callan…” (Notice of Mot. at p. 2:5-17.) Plaintiffs oppose.

            Requests for Judicial Notice

            The Court grants Plaintiffs’ request for judicial notice as to Exhibits A, B, D, E, F, G, H, I, J, and K. The Court denies Plaintiffs’ request for judicial notice as to Exhibit C.  

            The Court denies Andrew Clapkin’s untimely request for judicial notice filed in support of the instant motion on February 27, 2024.[1]

            Evidentiary Objections

            The Court rules on the parties’ “Joint Statement of Evidentiary Objections to the Amended Motion for Appointment of a Guardian Ad Litem for Defendant Sheila Clapkin Without a Conservator” as follows:

            Plaintiffs’ Objections:

            Objection No. 1: sustained as to “March 4, 2021,” overruled as to the remainder.

            Objection No. 2: sustained as to “April 21, 2021,” overruled as to the remainder.

            Objection No. 3: sustained

            Objection No. 4: overruled

            Andrew Clapkin’s Objections:

            Objection No. 5: sustained as to “based on, among other things, the Clapkins’ removal of over $550,000 of cash from existing bank accounts in the name of nominal defendant, JosLevin Realty Corp. of L.A. (JLR),” overruled as to the remainder.

            Objection No. 6: sustained

            Objection No. 7: sustained as to “based on the Clapkins’ sworn declarations denying any use of JLR’s monies,” overruled as to the remainder.

            Objection No. 8: sustained as to the second sentence, overruled as to the first sentence.

            Objection No. 9: sustained

            Objection No. 10: sustained as to “enjoining the Clapkins from using any of JLR’s funds after finding the Clapkins’ declarations that denied any use of JLR’s funds appeared to be false,” overruled as to the remainder.

            Objection No. 11: sustained

            Objection No. 12: sustained

Discussion

            Andrew Clapkin states that the instant motion is “made pursuant to Sections 372(a)(1)-(2)(A) of the California Code of Civil Procedure.” (Notice of Mot. at p. 3:23-24.)

Pursuant to Code of Civil Procedure section 372, subdivision (a)(1), “[w]hen a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case.” Code of Civil Procedure section 372, subdivision (a)(2) provides as follows:

“(A) A guardian ad litem may be appointed in any case when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to appoint a guardian ad litem to represent the minor, person who lacks legal capacity to make decisions, or person for whom a conservator has been appointed, notwithstanding that the person may have a guardian or conservator of the estate and may have appeared by the guardian or conservator of the estate.

(B) If application is made for appointment of a guardian ad litem for a person described in paragraph (1), and that person has a guardian or conservator of the estate, the application may be granted only if all of the following occur:

(i) The applicant gives notice and a copy of the application to the guardian or conservator of the estate upon filing the application.

(ii) The application discloses the existence of a guardian or conservator of the estate.

(iii) The application sets forth the reasons why the guardian or conservator of the estate is inadequate to represent the interests of the proposed ward in the action.

(C) The guardian or conservator of the estate shall have five court days from receiving notice of the application to file any opposition to the application.”

Pursuant to Code of Civil Procedure section 372, subdivision (a)(3), “[t]he guardian or conservator of the estate or guardian ad litem so appearing for any minor, person who lacks legal capacity to make decisions, or person for whom a conservator has been appointed shall have power, with the approval of the court in which the action or proceeding is pending, to compromise the same, to agree to the order or judgment to be entered therein for or against the ward or conservatee, and to satisfy any judgment or order in favor of the ward or conservatee or release or discharge any claim of the ward or conservatee pursuant to that compromise.”

            As set forth above, Andrew Clapkin seeks an order “(a) appointing a guardian ad litem for Defendant Sheila Clapkin…without a conservator; (b) directing that [Andrew Clapkin]…be so appointed as guardian ad litem; but, if not [Andrew Clapkin] due to some sort of purported conflict, then (c) to the appointment of Marci Clapkin Weiser (‘Marci’) or Dina Marshall (‘Dina’) in that order…and, if not [Andrew Clapkin], Marci or Dina because of some sort of alleged conflict, then (d) Karen Callan…” (Notice of Mot. at p. 2:5-17.)

            As an initial matter, Plaintiffs assert in the opposition that the Court should deny the instant motion as procedurally defective, because Andew Clapkin “fails to comply with the mandatory procedures to appoint a [guardian ad litem].” (Opp’n at p. 5:3.)

            Plaintiffs cite to the Local Rules of the Los Angeles County Superior Court, specifically Local Rule 2.8, which provides, inter alia, that “[s]ubject to the authority of the Presiding Judge to apportion the work of the court, the following actions, proceedings, and procedures are assigned in the CENTRAL DISTRICT (Stanley Mosk Courthouse) as follows. These assignments do not apply to matters heard in the other districts or in the Complex Litigation departments…” (Super. Ct. L.A. County, Local Rules, rule 2.8.) Local Rule 2.8(e) provides that “Guardian ad litem appointment” is assigned to “Department 25 or 26, Spring Street Courthouse, except for complex cases, which are handled by the Complex Department where case is assigned.” (Super. Ct. L.A. County, Local Rules, rule 2.8(e).)

Plaintiffs assert that Local Rule 2.8(e) accordingly requires Andrew Clapkin to file an application to appoint a guardian ad litem for Sheila Clapkin in Department 25 or 26 of the Spring Street Courthouse.

In the motion, Andrew Clapkin asserts that Local Rule 2.8(e) is inapplicable. He asserts that that “[w]hile Local Court Rule 2.8(e) indicates that guardian ad litem appointments with respect to only the Stanley Mosk Courthouse are ordinarily relegated to Departments 25 and 26 of the Spring Street Courthouse…that reference… by definition…must apply only to ‘applications’ for such appointment when litigation is not already pending…” (Mot. at p. 13:9-13.) But Andrew Clapkin does not appear to cite any legal authority supporting such proposition.

Andrew Clapkin also notes that “[a] trial court is without authority to adopt local rules or procedures that conflict with statutes or with rules of court adopted by the Judicial Council, or that are inconsistent with the California Constitution or case law.” (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1351, superseded by statute on other grounds as stated in In re Marriage of Swain (2018) 21 Cal.App.5th 830, 840.) But the Cout does not find that Andrew Clapkin has shown that Local Rule 2.8(e) conflicts with Code of Civil Procedure section 372, to the extent that is what Andrew Clapkin is arguing. As noted by Plaintiffs, Andrew Clapkin appears to “misconstrue[] CCP § 372, which provides a [guardian ad litem] may be appointed ‘by the court in which the action or proceeding is pending,’ to mean instead the ‘department’ where the action is pending.” (Opp’n at p. 5:19-21; Code Civ. Proc., § 372.) Plaintiffs note that “[t]here is but one superior court in the County of Los Angeles, and all actions brought in that county are within the same jurisdiction.” (Mobil Oil Corp. v. Superior Court (1978) 79 Cal.App.3d 486, 492; see also Super. Ct. L.A. County, Local Rules, rule 2.1(a), “[a]ll departments within the court designated by the Presiding Judge to hear civil cases constitute the Civil Division of the Los Angeles Superior Court…”)

As further noted by Plaintiffs, Local Rule 2.8 provides that certain specified actions and proceedings are assigned to the “Department where case is assigned.” (See, e.g., Super. Ct. L.A. County, Local Rules, rule 2.8(a), “Application for post-judgment writ of attachment and writ of possession matter” assigned to “Department where case is assigned.”) As Plaintiffs note, a “Guardian ad litem appointment” is not assigned to the “Department where case is assigned,” rather, it is assigned to “Department 25 or 26, Spring Street Courthouse, except for complex cases…” (Super. Ct. L.A. County, Local Rules, rule 2.8(e).)

In light of the foregoing procedural issue, the Court denies Andrew Clapkin’s instant motion.

Conclusion

Based on the foregoing, the Court denies Andrew Clapkin’s motion without prejudice to seeking appointment of a guardian ad litem in accordance with Local Rule 2.8(e).

Plaintiffs are ordered to give notice of this ruling.

DATED:  March 21, 2024                              ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court