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Darryl Genis et al v Daniel Genis et al

Case Number

22CV03483

Case Type

Unlimited Fraud (16)

Hearing Date / Time

Wed, 10/18/2023 - 08:30

Nature of Proceedings

Motions

Tentative Ruling

            This case was transferred from South County on August 11, 2023 and assigned to this court August 14, 2023. The following motions are on this court’s October 18, 2023, law and motion calendar:

  • Petition: Compel Arbitration (filed April 14, 2023) [Defendants];
  • Motion: Stay Pending Arbitration (filed April 14, 2023) [Defendants];
  • Motion: for Priority Trial Setting (filed May 25, 2023) [Plaintiffs];
  • Motion: for Court Authorization to Request Prod of Docs and Things re: Late Stipulated Interpleader (filed May 25, 2023) [Plaintiffs];
  • Motion: to Set Aside and/or Vacate and/or Correct Erroneous Entry of Order Granting Stupin’s 170.6 against Anderle (filed May 25, 2023) [Plaintiffs];
  • Motion: Bifurcate Certain Issues/Motion to Declare Confidentiality (filed June 2, 2023) [Plaintiffs];
  • Motion: Sanctions, Attorney Fees and Costs (filed June 2, 2023) [Plaintiffs];
  • Motion: Amend Second Amended Complaint (filed July 20, 2023) [Plaintiffs];
  • Motion: Compel Requests for Prod of Docs Set One (filed July 20, 2023) [Plaintiffs];
  • Motion: Issuance OSC re Contempt (filed August 21, 2023) [Plaintiffs]
  • Motion: Order Suggesting Order to Hear Pending Contested Pretrial Matters (filed September 5, 2023) [Plaintiffs]
  • Motion: Set Aside “Void” Order of May 2, 2023 Purporting to Disqualify Anderle (filed September 18, 2023) [Plaintiffs]

            This court has fully reviewed the case. The court’s tentative rulings are below.

Motion: to Set Aside and/or Vacate and/or Correct Erroneous Entry of Order Granting Stupin’s 170.6 against Anderle

            This motion is denied. On June 27, 2023, Darryl Genis filed a writ of mandate to the Second District Court of Appeal (Case No. B329887) pursuant to Code of Civil Procedure section 170.3(d) requesting reversal of the trial court order granting Andrew Stupin’s peremptory challenge against Judge Thomas Anderle. The Court of Appeal summarily denied the writ on June 29, 2023. Darryl Genis filed a petition for review with the California Supreme Court (S280844) on July 6, 2023. On August 23, 2023, the California Supreme Court denied the petition for review.

            To the extent this motion remains operative for this court’s review, it is denied. Procedurally, the motion fails. A motion pursuant to Code of Civil Procedure section 473 may not be based on the court’s “mistake, inadvertence, surprise, or excusable neglect.” To the extent the motion is based on Code of Civil Procedure section 1008, it is untimely. A motion for reconsideration must be filed within 10 days of the notice of entry of order. Even allowing for service by mail, the motion was untimely.

Motion: Set Aside “Void” Order of May 2, 2023 Purporting to Disqualify Anderle

            On September 18, 2023, the Genis plaintiffs filed a writ to the California Court of Appeal District 2, Division 6 requesting the following orders: (1) Grant a Peremptory Writ in the First Instance, ordering Respondent Court to shorten time for hearing; (2) Grant a Peremptory Writ in the First Instance, declaring the May 2, 2023, ‘Order’ disqualifying Judge Thomas P. Anderle a Void order the case returned to Judge Anderle for all purposes; (3) Order the Respondent Court to issue an Order to Show Cause re Direct Contempt as against attorney Marc Cohen (SBN 262707) and indirect contempt as against attorney Ashley Fickel (SBN 237111); (4) Report attorneys Marc Cohen and Ashley Fickel to the California State Bar, Office of Chief Trial Counsel, for filing false affidavits, abusing court process, committing a fraud upon the court and obstructing justice; (5) Declare that all actions taken as a direct and proximate result of the ‘void’ May 2, 2023, ‘Order’ are themselves void. On October 3, 2023 the California Court of Appeal summarily denied the writ.

            To the extent this motion remains operative, the court denies it. Even assuming there was a jurisdictional defect, it was rectified by the Stupin’s subsequent appearance. (Sunrise Financial, LLC v. Superior Court (2019) 32 Cal.App.5th 114, 125.)[1] In any event, finding the order void will not give Darryl Genis the result he seeks; it would merely return the parties to their respective positions prior to the filing of the initial 170.6, leaving the Stupins with the ability to file the same motion to disqualify once they have made an appearance. 

            The motion is denied.

Petition to Compel Arbitration

            The petition is granted. Interpretation of the CRSA is controlled by the provisions of the California Arbitration Act by its express terms. There is no fraud alleged in the inception or execution of the agreement as it relates to the arbitration clause. In other words, the allegations do not suggest that Darryl Genis did not know what he was signing. Instead, the allegations suggest Darryl Genis was induced to enter into the CSAR because of Daniel Genis’s misrepresentations concerning the financial status of Arline Genis’s estate, which is fraud in the inducement. Whether this alleged fraud concerning the concealment of the value of the estate is legally or equitably sufficient to warrant nonenforcement of the CSAR is to be resolved in the arbitral forum. (Larian v. Larian (2004) 123 Cal.App.4th 751, and cases cited therein.)

            Defendants did not waive their arbitration rights when they filed two demurrers before they filed their petition to compel arbitration. There has been no litigation “on the merits.” (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187.)

            Nor is Darryl Genis’s argument that he is prejudiced by the delay convincing; Darryl Genis displayed no concern for priority trial setting until the petition to compel arbitration was filed and more pointedly, he has contributed to the delay by his petitions for mandate/review to the reviewing courts. The court finds there is no waiver.

            The court has reviewed the allegations of the Second Amended Complaint and concludes that it is not precluded from ordering this case to arbitration while staying the action as to the Stupin defendants. (See Code Civ. Proc., § 1281.2 (3).)

Motion to Amend Complaint

            This motion is denied. To support a claim for damages under section 859, a petition for conveyance or transfer of property claimed to belong to decedent must be brought. This petition cannot be brought within a civil action; The implementing code section (section 850) appears in the Probate Code and contemplates the filing of a “petition,” which is a term of art used in probate proceedings.  To be sure, the Probate Code contemplates overlap with civil actions. (See Prob. Code, §§ 855 [authorizing the probate action brought under this part to include claims, causes of action, or matters that are normally raised in a civil action]; 856.5 [prohibiting the court from granting the petition if it determines that the matter should be determined by a civil action].) These code sections demonstrate the intent that a probate action is required to pursue the probate claims. The probate action can be subsequently related to the instant civil proceeding. Genis does not need permission to file that probate action.

            As noted above, the court may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding. (Code Civ. Proc., § 1281.2.) That is precisely what the court intends to do here.

Summary of Rulings

  1. The Motion to Set Aside and/or Vacate and/or Correct Erroneous Entry of Order Granting Stupin’s 170.6 against Anderle is denied.
  2. The Motion to Set Aside “Void” Order of May 2, 2023 Purporting to Disqualify Anderle is denied.
  3. The Motion to Amend the Second Amended Complaint is denied.
  4. The Motion to Compel Arbitration is granted. Darryl Genis is ordered to arbitrate the causes of action in his Second Amended Complaint against Daniel Genis in accordance with the terms of the Confidential Settlement and Release. Those causes of action are hereby stayed as against Daniel Genis pending further order of the court. The causes of action against the Stupin defendants are also stayed pursuant to Code of Civil Procedure section 1281.2 pending further order of the court.
  5. The remaining motions are to be decided by the arbitrator.

Defendants are directed to provide the court with a proposed order reflecting these rulings.

[1] Darryl Genis’s argument that the Stupins have been dismissed out of this case as defendants is thus unsupported by the record. (See Stipulation and Order for Interlocutory Order of Discharge for Interpleader signed May 3, 2023 by Judge Colleen Sterne.)The Stupins arguably remain as named defendants in the first cause of action (Declaratory and Injunctive Relief), the third cause of action (recission of Second Contract Within CSAR To Waive Petition to Probate of Estate of Arline Genis) and the ninth cause of action (Civil Conspiracy). The Order did not dismiss them from the first cause of action and they are named as defendants in the prayer of the third and ninth causes of action. Thus, the record is not clear that the Stupins have been dismissed from this action entirely.

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