Appellate Cases

Published Cases

Katzir's Floor and Home Design, Inc., v. M-MLS.com
(2004) 394 F.3d 1143

United States Court of Appeals for The Ninth Circuit

M-MLS, Inc., a Canadian corporation wholly owned by Peter Sommer, sold an end matcher machine (a woodworking machine) to Katzir's Floor for $ 87,200 in an "as is" condition. According to Katzir's Floor, the machine never worked properly. Katzir's Floor sued M-MLS, Inc. in California state court on July 29, 1999, seeking special damages of not less than $ 87,200, as well as general, incidental, consequential, and punitive damages. The action was removed to federal court on the basis of diversity.

M-MLS, Inc. initially answered and defended the lawsuit. Faced with financial difficulties, M-MLS, Inc. borrowed $ 50,000 from its former accountant, Elliott Fromstein, on August 28, 2000, giving Fromstein a secured interest in all of M-MLS, Inc.'s assets. M-MLS, Inc. discharged its attorneys in December 2000 and ceased defending the lawsuit. Default was entered against M-MLS, Inc. on March 9, 2001, for failing to secure new counsel, and a default judgment of $ 1,638,884 was entered on June 18, 2001, based on an affidavit submitted by Katzir's Floor's owner relating the lost sales Katzir's Floor suffered from its inability to meet orders requiring use of the machine.

Meanwhile, M-MLS, Inc. failed to make payments to Fromstein, and Fromstein initiated private involuntary receivership proceedings under Canadian law in June 2001. As provided under Canadian law, Fromstein appointed Sklar Receivers and Consultants, Inc. (Sklar) as the receiver. Sklar received three appraisals on M-MLS, Inc.'s assets that ranged between $ 11,000 and $ 14,000. The appraised assets included office furniture, machine brochures, and computers, but did not value any intangible assets, including a website used by M-MLS, Inc.

On July 9, 2001, Sklar sold all of the assets of M-MLS, Inc. to Scamper Enterprises, Inc., a separate corporation wholly owned by Sommer's wife, for $ 25,000. The proceeds, less a $ 5,000 receivership fee retained by Sklar, were paid to Fromstein as the secured creditor. The receiver's bill of sale to Scamper included the right to use the name "M-MLS" and all company software, telephone numbers, and intellectual property associated with the name M-MLS. Katzir's Floor was given notice and was aware of the receivership proceedings in Canada but did not challenge the valuation or the sale to Scamper of all of M-MLS, Inc.'s assets.

Around the time that M-MLS, Inc. discharged its attorneys in December 2000, Sommer formed another Canadian corporation called M-MLS.com, an online brokerage company for new and used woodworking machinery. After Scamper bought the assets of M-MLS, Inc., Scamper allowed M-MLS.com to use the M-MLS website that Scamper had acquired as part of the receiver's sale.

In May 2002, Katzir's Floor moved to modify the federal court default judgment to reflect the true names of the debtor by adding Sommer as an individual and M-MLS.com. The district court granted the motion on the bases that Sommer was the alter ego of M-MLS, Inc. and M-MLS.com was the successor corporation of M-MLS, Inc. Accordingly, the court entered an amended judgment on December 19, 2002. Sommer and M-MLS.com filed a notice of appeal from the December 19, 2002, order on January 10, 2003. They also filed a Rule 60(b) motion and a motion on March 10, 2003, challenging the underlying default judgment as it applied to them. The district court denied the motions, and Sommer and M-MLS.com appealed that order on April 21, 2003. Reversed. [Mr. Horwitz represented Respondent Katzir]

Epstein v Abrams
(1997) 57 Cal. App. 4th 1159

Court of Appeal of California, Second Appellate District, Division Four

Appellant Lawrence M. Lebowsky was the attorney of record for defendants and cross-complainants Steven G. Abrams, Alan Abrams (Steven's son), and Abrams Veterinary Corporation, in the present action brought by plaintiffs and respondents Alan Epstein, and Devonshire Veterinary Clinic, Inc. Appellant was successful in obtaining summary judgment on behalf of Alan Abrams and in securing an award of attorney fees in Alan Abrams's favor; Alan Abrams was dismissed from the lawsuit. The action proceeded between the remaining Abrams defendants and the plaintiffs. After appellant filed and served notice of his contractual attorney's lien, the remaining litigants and Alan Abrams attempted to enter into a global settlement agreement, a necessary component of which was Alan Abrams's agreement to execute a satisfaction of the judgment in his favor for attorney fees and costs.

Respondents brought a motion in the trial court seeking court approval of the settlement, and the trial court issued an order granting the motion. The trial court later denied appellant's motion for reconsideration of the order. Appellant appeals from these orders, contending that the trial court acted in excess of its jurisdiction in approving the settlement. We agree that the trial court's orders were in error and reverse. [Mr. Horwitz represented Mr. Lebowsky, appellant]


Unpublished Cases

Corlin v MacInnis (2012) [B232763]

Court of Appeal, Second Appellate District

Mr. Horwitz represented Carl MacInnis (“Carl”) and his daughter, Rosalie MacInnis Corlin (“Rosalie”) in an action filed against them by Rosalie’s soon-to-be ex-spouse, Adam Corlin (“Adam”).

Rosalie’s mother, Irene MacInnis, owned and resided in a small single-family bungalow with a small guest house (the Steiner property). Upon Irene’s death, the property passed to Carl. Rosalie is Carl’s only living child. In late 2002 or early 2003 Carl is alleged to have made an oral gift of the Steiner home to Rosalie and her then husband, Adam. The couple moved in and spent more than $164,000 improving the residence and grounds. In 2002, Adam demanded that Carl convey title to the property and was refused. Between 2002 and 2005, Adam and Rosalie continued to discuss the transfer of title. Carl refused to transfer title.

In April 2008, due to a marital dispute, Adam was locked out of the property. At that time the marriage effectively ended, and Adam and Rosalie dissolved their marriage. According to a spreadsheet submitted by Adam, he spent a total of $164,171.71 on improvements to the Steiner property between 2002 and 2007. He filed suit against Rosalie and Carl seeking relief based on (1) imposition of equitable lien and constructive trust, (2) unjust enrichment, (3) common count for money due and owing, (4) common count for quantum meruit, (5) declaratory relief, and (6) partition.

Mr. Horwitz filed a successful Motion for Summary Adjudication on the equitable lien, constructive trust, declaratory relief and partition causes of action. After a bench trial, Mr. Horwitz obtained a defense verdict in favor of Rosalie, and had the $164,171.71 claim reduced to an award of $52,416.

Anton v Pantoja (2009) [F054054]

Court of Appeal, Fifth Appellate District

Plaintiff appeals from an order awarding defendants their attorney's fees incurred in presenting their successful special motion to strike the complaint ( Code Civ. Proc., § 425.16, subd. (c)) 1. Plaintiff contends the trial court incorrectly determined it had no discretion to reduce the fees claimed by defendants below the amount set out in defendants' supporting declarations, and therefore it awarded defendants the full amount requested without exercising its discretion to reduce the fees sought, which plaintiff contends are excessive. We find no abuse of discretion and affirm. [Mr. Horwitz represented the defendant / respondent.]

Bander v Shiepe (2007) [B196467]

Court of Appeal of California, Second Appellate District, Division Four

Plaintiff Douglas Shiepe (Shiepe) appeals the dismissal of his complaint pursuant to the "anti-SLAPP" statute ( Code Civ. Proc., § 425.16) and the award of attorney fees against him and his counsel. 1 We find no error, and we affirm. [Mr. Horwitz represented the defendant / respondent.]

Roy Al Finance and Loan Company v Rastegar & Matern (2005) [B156726]

Court of Appeal of California, Second Appellate District, Division Three

Plaintiffs and appellants Roy-Al Finance & Loan Company (Royal) and John Tonoyan (Tonoyan) (collectively, Royal) appeal an order granting in part an attorney fee motion brought by defendants and appellants Matthew J. Matern (Matern), Paul J. Weiner (Weiner), Julia Vaynerov (Vaynerov) and the law firm of Rastegar & Matern (R&M) (collectively, the attorney defendants), after the attorney defendants prevailed on a special motion to strike under the anti-SLAPP statute. ( Code Civ. Proc., § 425.16.) The attorney defendants cross-appeal from the attorney fee order, contending the attorney fee award was inadequate. The issue presented is whether, and to what extent, the attorney defendants are entitled to recover reasonable attorney fees related to their anti-SLAPP motion. To the extent the attorney defendants retained outside counsel to represent them in connection with the anti-SLAPP motion, they were entitled to recover reasonable attorney fees pursuant to section 425.16. However, to the extent the attorney defendants represented themselves in the matter, recovery of attorney fees is barred. The order is affirmed. [Mr. Horwitz represented the defendant / respondents]

Romeo v Katzir Floor & Home Design, Inc., (2004) [G033439]

Court of Appeal of California, Fourth Appellate District, Division Three

Mark Romeo purchased hardwood flooring for his house from Katzir's Floor and Home Design, Inc., doing business as National Hardwood Flooring and Moulding (National). National recommended a contractor to install the flooring. When parts of the flooring buckled, Romeo sued National and its president Omer Katzir (collectively defendants) under the Consumer Legal Remedies Act (CLRA) ( Civ. Code, § 1750 et seq.), and for violation of the unfair competition law ( Bus. & Prof. Code, § 17200). Shortly before trial, Romeo requested a dismissal without prejudice of all claims against defendants; the trial court dismissed Romeo's case without prejudice. Defendants filed a motion for statutory and contractual attorney fees. The trial court denied the motion and defendants appealed. Affirmed. [Mr. Horwitz represented the appellant / defendants].

Roy Al Finance and Loan Company v Rastegar & Matern (2003) [150292]

Court of Appeal of California, Second Appellate District, Division Three

Plaintiffs and appellants Roy Al Finance & Loan Company, formerly known as Royal Thrift & Loan Company (hereafter, Royal), and John Tonoyan (Tonoyan) appeal an order granting a motion by defendants and respondents to strike their malicious prosecution complaint pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP [*2] statute. The essential issue presented is whether Royal and Tonoyan made an adequate showing that their malicious prosecution action against the attorney defendants has merit. We conclude Royal and Tonoyan failed to make a sufficient prima facie showing that the attorney defendants initiated the underlying action with malice. Therefore, the trial court properly granted the attorney defendants' special motion to strike the instant complaint. The order granting the motion to strike the malicious prosecution complaint is affirmed. [Mr. Horwitz represented the defendant / respondents]

In re Dylan Apple Trust (2003) [B164076]

Court of Appeal of California, Second Appellate District, Division One

Dylan Apple suffered severe and permanent injuries at the time of his birth in 1995. Dylan's parents, Heidi Hutchinson Apple and Jeffrey Apple, attributed the injuries to medical malpractice, and a lawsuit against the attending physician and the hospital was filed by Dylan (for his injuries), and by Heidi and Jeffrey (for negligent infliction of emotional distress), with Heidi designated as Dylan's guardian ad litem. In June 1999, the malpractice suit was resolved by a court-approved settlement in the amount of $ 4.75 million, which was allocated $ 250,000 to Heidi, $ 250,000 to Jeffrey, and $ 4.25 million to Dylan, with a reimbursement to Jeffrey from Dylan's share of $ 191,026 for the medical expenses Jeffrey had paid between the time of Dylan's birth and the settlement. A trust was created for Dylan's benefit, and (as requested by Heidi as Dylan's guardian ad litem) Northern Trust Bank of California, N.A., was appointed Trustee of the Dylan Apple Trust. Among other things, the Trustee has the power to "commence or defend, at the expense of the trust, any litigation with respect to the trust that the Trustee deems advisable . . . ." More than three years later, in August 2002 -- by which time Heidi and Jeffrey were embroiled in a bitter divorce -- Heidi, purportedly acting as Dylan's guardian ad litem, initiated the present proceedings by filing a petition in probate in which she asked for orders requiring Jeffrey to account for the $ 191,026 reimbursed to him at the time the medical malpractice action was settled. The gist of Heidi's petition was that Jeffrey had not incurred the expenses for which he was reimbursed, and that Jeffrey knew his claim "was grossly inflated, fraudulent, and incorrect when he made it." Jeffrey demurred to the petition on numerous grounds, including a challenge to Heidi's standing. Over Heidi's opposition, the demurrer was sustained without leave to amend, and Heidi's petition was dismissed. Heidi's appeal is from the order of dismissal. The dismissal was affirmed. [Mr. Horwitz represented Jeffrey Apple]

Pastor v ERI (1998) [98-55552]

United States Court of Appeal for the Ninth Circuit

Robert Bradley Pastor, a federal prisoner, appeals pro se the district court's dismissal of his action alleging that defendants conspired to drive South Sea Imports, Inc., a California corporation, out of business by monopolizing the coral rock importation business and driving down prices. The district court properly dismissed Pastor's action because the complaint alleged direct injuries to South Sea Imports, Inc., and only indirect injuries to Pastor himself. See id. (stating that a shareholder may not sue as an individual if his or her injuries are merely incidental to or an indirect result of injuries to the corporation); The district court properly rejected Pastor's attempt to represent South Sea Imports, Inc. Affirmed. [Mr. Horwitz represented the defendant / respondent].

Logudice v Continental C. Express (1998) [F028132]

Court of Appeal of California, Fifth Appellate District

After a jury trial, Joseph Logudice was awarded in excess of $125,000 arising out of an automobile accident. The defendants claimed that they had subrosa video tapes which controverted Logudice’s injury claims, but were not allowed to present the tapes as, despite request therefore, they had not turned them over in discovery. The Court of Appeal affirmed the trial court’s ruling. [Mr. Horwitz represented plaintiff, Joseph Logudice]




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