Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cole v. Hammond

California Court of Appeals, Second District, Fourth Division

July 24, 2019

GREGORY A. COLE, Plaintiff and Respondent,
v.
BETTY HAMMOND et al., Defendants and Appellants.

         CERTIFIED FOR PARTIAL PUBLICATION [*]

          APPEAL from an order of the Superior Court of Los Angeles County No. BC466925, Maria E. Stratton, Judge. Reversed and remanded with instructions.

          Solomon T. Harris for Defendants and Appellants.

          Gieleghem Law Office and Neil Gieleghem for Plaintiff and Respondent

          COLLINS, J.

         INTRODUCTION

         In a prior action, Neil Gieleghem and respondent Gregory Cole, both attorneys, obtained a $500, 000 judgment against Anthony Sheen, a landlord, based on unpaid fees for legal services they rendered to Sheen. In satisfaction of that judgment, Cole and Gieleghem obtained an assignment of rent from Sheen for a residential property.

         Appellants Betty and Ruth Hammond (the Hammonds) were Sheen's tenants. Cole and Gieleghem demanded that the Hammonds pay their rent directly to them pursuant to the assignment. The Hammonds refused, and Cole sued, alleging breach of contract and related claims. Gieleghem appeared as Cole's attorney in the lawsuit.

         A few months after the initiation of the lawsuit in 2011, the Hammonds began paying their rent to Cole and Gieleghem. After the parties conducted some initial discovery, the case languished for several years. In January 2018, the Hammonds moved for mandatory dismissal of the action for failure to bring the case to trial within five years, pursuant to Code of Civil Procedure section 583.360.[1] A mandatory dismissal would be considered a determination on the merits entitling the prevailing party to attorney fees under Civil Code, section 1717. However, at the hearing on the motion, Cole sought to voluntarily dismiss the case without prejudice pursuant to section 581, subdivision (b)(1). The court granted Cole's oral motion and dismissed the case. The court subsequently denied the Hammonds' motion to vacate the dismissal. This appeal followed.

         The parties dispute whether this appeal is timely. We conclude that it is. Substantively, the Hammonds contend the trial court erred in granting Cole's motion for voluntary dismissal, arguing that they had the right to a mandatory dismissal and the resulting attorney fees. We agree and therefore reverse and remand for further proceedings.

         FACTUAL AND PROCEDURAL HISTORY

         I. Underlying Dispute

         The Hammonds are elderly sisters who rented a residence on South Spaulding Avenue in Los Angeles, California (the Spaulding property). They originally signed a monthly rental agreement in 2001 with owner Dolores Quinlock Sheen. After she died, the Spaulding property became an asset of a trust (the Sheen trust), for which Anthony Sheen served as the trustee.

         As trustee, Sheen was involved in multiple probate lawsuits that arose out of disputes related to the trust estate. Cole and Gieleghem provided legal services to Sheen in connection with the probate litigation. In January 2009, Cole and Gieleghem sued Sheen for unpaid attorney fees. That matter, Cole v. Sheen (LASC Case No. LC084204) (the fees action), resulted in a judgment against Sheen and in favor of Cole and Gieleghem for almost $500, 000.

         On July 26, 2011, the court in the fees action granted an ex parte application submitted by Cole and Gieleghem ordering Sheen to “assign immediately to Judgment Creditors any and all interest the Judgment Debtor has in, and any payments made in connection with, the following assets of the Sheen Trust to the extent necessary to satisfy” the judgment against Sheen (the assignment order). As relevant here, the court ordered Sheen to assign “[a]ll rents from the tenants” of the Spaulding property, starting July 1, 2011.

         Gieleghem notified the Hammonds of the assignment order in a letter dated July 26, 2011. He further stated that under the assignment order, the Hammonds were “legally required to pay all rents... to Judgment Creditors, rather than to the Trustee/landlord.” The Hammonds contend they responded by asking Cole and Gieleghem for verification of their right to receive the rent, but that request was refused. The Hammonds also contacted Sheen and his attorney for instructions on how to proceed.

         The parties do not dispute that at the end of July 2011, the Hammonds paid their August rent of $1, 400 to Wells Fargo (as a purported superior lienholder) at the direction of Sheen's attorney. The following two months, the Hammonds paid their rent to the Sheen trust, at Sheen's direction. From November 2011 onward, they paid their rent to Cole and Gieleghem.

         II. Cole's Lawsuit Against the Hammonds

         After the Hammonds failed to pay their August 2011 rent to Cole and Gieleghem, Cole filed the instant lawsuit on August 4, 2011, alleging claims against the Hammonds for breach of contract and common counts. Gieleghem appeared on the complaint as the attorney of record for Cole, not as a party.[2] In the complaint, Cole alleged that the rents on the Spaulding property were assigned to him pursuant to the assignment order, that the Hammonds were given notice of that order at the time, but they “failed and refused to pay said rents to Cole.” He alleged damages of $495, 025, the full amount of the judgment against Sheen in the fees action.

         The Hammonds, in propria persona, filed a general denial, contending that their “contract is with the landlord, ” and “[u]nless Court tells us otherwise payment goes to landlord.”

         In September 2011, Cole filed a notice of related case, listing the fees action as potentially related to the instant case. The court issued a minute order relating the cases on November 3, 2011. The court noted that the fees action was previously related to the probate case, with the latter designated as the lead case. The court found that the current case against the Hammonds was “an action to enforce the same order” at issue in the fees action. Thus, the court concluded that the cases were related within the meaning of California Rules of Court, rule 3.300, [3] “since the claims arise out of an order issued by the probate court and concern the same claim against Trust property.”

         The parties began discovery. Cole deposed the Hammonds in late 2011 and conducted a physical inspection of their unit in April 2012.[4] In January 2013, Cole filed a substitution of attorney, stating that he would represent himself. Cole took no further action in this matter until 2018, after the Hammonds filed the motion giving rise to the instant appeal.

         III. Motion to Dismiss

         In January 2018, the Hammonds filed a motion to dismiss for failure to bring the matter to trial within five years, pursuant to section 583.360. They pointed out that the case had been pending since August 2011, no actions had been taken since early 2013, and no trial date was set. They also declared that the parties had not stipulated to extend the five-year deadline, and the case had never been stayed. The Hammonds therefore argued that dismissal was mandatory under section 583.360. The motion was set for hearing on March 28, 2018.

         On March 15, 2018, Cole filed an opposition to the motion to dismiss, with Gieleghem purporting to act as Cole's attorney. In the opposition, Cole argued that appeals filed in the related cases operated to stay all of the cases related to the Sheen trust, including this case. Cole's motion included a list of nine appeals, “at least four (4)” of which “were pending during part of the time period at issue on Defendants' Motion.” The four purportedly relevant appeals listed by Cole included one from the fees action and three from the probate litigation. Cole asserted that stays in those cases operated to toll the expiration of the five-year period in this case.

         The Hammonds filed their reply on March 21, 2018. They objected that the opposition was untimely and that Gieleghem was no longer counsel of record. They also argued that none of the appeals operated to stay their case. Moreover, they noted that only one of the listed appeals was even “superficially related” to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.