McCoy Electric Corporation vs Annette Rubin et al

Case Number

16CV03591

Case Type

Hearing Date / Time

Mon, 09/30/2024 - 10:00

Nature of Proceedings

CMC; Motion for an Order Directing the Rubins to Transfer Possession of Share Certificates in ASR Development Co. to the Los Angeles County Sheriff's Dept

Tentative Ruling

McCoy Electric v. Anette Rubin and Stuart Rubin 

Case No. 16CV03591          

Hearing Date: September 30, 2024                                      

HEARING:              Motion of The Las Canoas Co. dba Construction Plumbing and McCoy Electric Corporation’s for Order Directing Judgment Debtors A. Stuart Rubin and Annette Rubin to Transfer to the Los Angeles County Sheriff’s Department Possession of the Share Certificates Evidencing Ownership of ASR Development Company

                                     

ATTORNEYS:        For Plaintiff McCoy Electric.: Daniel E. Engel

                                    For Defendants Annette Rubin and A. Stuart Rubin: Self-Represented

                                    For Cross Defendant/Cross Complainant The Las Canoas Co. dba Construction Plumbing: Daniel E. Engel

                                    For Intervening Party U.S. Real Estate Credit Holdings III-A, LP: Marsha A. Houston, Christopher O. Rivas    

                                    [For additional appearances see list.]

                                

TENTATIVE RULING:

The motion is taken off-calendar, without prejudice.

Background:

This action arises out of a remodeling project at residential property located at 4347 Marina Drive, Santa Barbara, California 93110. The Property was owned by defendants and cross-complainants Annette Rubin and A. Stuart Rubin (“Rubins”).

Plaintiff and cross-defendant McCoy Electric Corporation, an electrical contractor, commenced the action on August 15, 2016, claiming that it was still owed sums for labor and materials furnished at the Property. In response, the Rubins cross-complained against McCoy Electric (“McCoy”) and its principal, Richard McCoy, for breach of contract, negligent construction, overcharging, conversion of materials, and accounting. The Rubins cross-complained against The Las Canoas Co. dba Construction Plumbing (“CP”), as well as several other parties, on September 19, 2019, asserting causes of action for negligence, products liability, and breach of contract.

CP filed an answer to the Rubin’s cross-complaint on October 25, 2019, asserting a general denial and several affirmative defenses. On October 25, 2019, CP also cross-complained against the Rubins, alleging a claim for breach of written settlement agreement.

The Rubins dismissed their cross-complaint against CP on March 11, 2022.

On November 2, 2022, following a court trial, judgment was entered in favor of McCoy in the amount of $355,279.10.

CP moved for contractual attorneys’ fees for defending the tort cause of action that was brought by the Rubins. On November 14, 2022, the motion was granted in the amount of $574,799.75 as damages and $65,878.70 in attorney fees and costs. This amount has subsequently been increased by the court granting motions for post-judgment attorney fees.

CP and McCoy now seek a turnover order directing the Rubins to transfer possession of share certificates in ASR Development Company to the Los Angeles County Sheriff’s Department.

CP and McCoy originally brought the motion as an ex parte application for order. The proof of service of the ex parte application indicates that it was served on the Rubins via email only.

On August 22, 2024, the court denied the ex parte and instructed counsel for CP and McCoy to file a motion to be heard on the Civil Law and Motion calendar. Responses were to be per code, and a hearing date was set for September 30, 2024.

Counsel for CP and McCoy did not file the motion as instructed. The court assumes that counsel incorrectly believed the ex parte papers would serve as the motion because on September 20, 2024, counsel filed a notice of non-opposition.

However, the original ex parte, which contained the moving papers, was not effectively served on the Rubins. Pursuant to Code of Civil Procedure section 684.020, in an enforcement of judgment proceeding, a judgment debtor, rather than the attorney for the judgment debtor, must be served with any writ, notice, order, or other paper. CP and McCoy appear to understand this because they served the Rubins directly. However, as noted above, they served the Rubins by email. Absent consent, a self-represented party may not be served via email. (Cal. Rules of Court, rules 1010.6(c); 8.78(a).) The court has no evidence that the Rubins consented to be served via email or that the Rubins were ever properly served with the moving papers. Although the Rubins were obviously aware of the motion, because they hired counsel for the limited purpose of attending the ex parte hearing, CP and McCoy are not excused from properly effectuating service on the Rubins.

The court also notes that the notice of non-opposition was not properly served on the Rubins. The notice of limited scope representation filed by attorney Albert Hughes III, on August 22, 2024, states that the Rubins mailing address is: 269 S. Beverly Drive, Suite # 1455, Beverly Hills, CA 90212. The proof of service attached to the notice of non-opposition does not list the Suite Number.

Because the documents were not properly served, the motion will be taken off-calendar.