Preview
ELECTRONICALLY FILED
Superior Court of California
County of Santa Barbara
Daniel E. Engel, Esq. (167231) Darrel E. Parker, Executive Officer
dan@danielengel.law 1/4/2023 5:11 PM
By: Terri Chavez , Deputy
6845 Amestoy Avenue
Lake Balboa, CA 91406-4445
Tel: (818) 312-0637
Attorney for Cross-Defendant
The Las Canoas Co. dba Construction Plumbing
SANTA BARBARA COUNTY SUPERIOR COURT
ANACAPA DIVISION
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Case No. 16CV03591
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Hearing: Jan 6, 2023, 8:30 a.m. Dept. 5
12 MCCOY ELECTRIC,
Trial Date: N/A
13 Complaint Filed: Sept. 19, 2019
14 Plaintiff,
THE LAS CANOAS CO. DBA
15 CONSTRUCTION PLUMBING’S EX
vs.
PARTE APPLICATION FOR AN
ORDER REQUIRING AN
ANNETTE RUBIN ET AL.
17 UNDERTAKING UNDER CAL. CODE
CIV. PROC. § 917.9, OR,
18 ALTERNATIVELY, FOR AN ORDER
Defendants.
19 SHORTENING TIME;
DECLARATION OF DANIEL E.
20 ENGEL, ESQ.
21 (And related cross action(s)...)
22 (Hon. Colleen K. Sterne, Dept. 5)
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24
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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PLEASE TAKE NOTICE that on Friday, January 6, 2023, at 8:30
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a.m., or as soon thereafter as the matter may be heard in Department 5 of
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CONSTRUCTION PLUMBING’S EX PARTE APPLICATION TO REQUIRE AN UNDERTAKING
the Superior Court of the State of California for the County of Santa Barbara
located at 1100 Anacapa Street, Santa Barbara, CA 93101, cross-defendant
and judgment creditor The Las Canoas Co. Dba Construction Plumbing (CP)
will, and does hereby apply, ex parte, for an order requiring cross-
complainants and judgment debtors Annette Rubin and A. Stuart Rubin to
post an undertaking pursuant to California Code of Civil Procedure section
917.9. Alternatively, CP applies for an order shortening time to hear this
request for relief as noticed motion. For the reasons discussed below, good
cause exists for the Court to grant this Application and order that the Rubins
10 provide an undertaking equal to 1.2 times the amount of the judgment
11 entered on November 23, 2022 in favor of CP in order to stay enforcement
12 thereof.
13 This Application is made pursuant to Cal. Code Civ. Proc. § 917.9,
14 subd. (a)(3) on the grounds that the Court, in the interests of justice, should
15 require the Rubins to post an undertaking equal to 1.2 times the amount of
16 the Judgment as condition of having a stay of enforcement of the judgment
17 entered on November 23, 2022.
18 This Application is based upon this Application, the attached
19 memorandum of points and authorities, and the declaration of Daniel E.
20 Engel, Esq., served and filed concurrently herewith, along with all other
21 matters of which the Court may take judicial notice, the oral argument of
22 counsel, pleadings and declarations already on file with the Court, and all
23 other evidence that may be presented at the hearing on this matter.
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Daniel E’Engel
28 Attorney for Construction Plumbing
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CONSTRUCTION PLUMBING’S EX PARTE APPLICATION TO REQUIRE AN UNDERTAKING
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION
This Court treat the Rubins’ appeal of the judgment entered in favor of
CP (the “Judgment”) for what it is: A tactic deployed solely to stay
enforcement of the Judgment pending appeal without having to post an
undertaking. The Rubins did not file the appeal because they think the
appellate court will find that the Court abused its discretion or that its orders
awarding costs attorney’s fees were clearly wrong. In reality, the Rubins
10 appealed the Judgment for the sole purpose of frustrating, hindering and
11 delaying CP’s efforts to enforce the Judgment. The Court need not go along
12 with their latest bad faith litigation tactic. The Court can, and respectfully,
13 should exercise its discretion and require the Rubins to provide an
14 undertaking in amount 1.2 times the amount of the Judgment in order to
15 stay enforcement thereof.
16
17 I. BACKGROUND FACTS
18
19 A. The Judgment
Annette Rubin and A. Stuart Rubin (Rubins) sued The Las Canoas Co.
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dba Construction Plumbing (CP) for $10,000,000 based on the assertion that
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CP was obligated, but failed to install temperature sensors (Slab Sensors)
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together the PEX tubing component of a engineered hydronic radiant space
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heating system (RHS) at their remodel project on Marina Drive in Santa
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Barbara (Project). Seeing this lawsuit for the fraudulent shakedown scheme it
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has now been proven to be, CP elected not to tender this lawsuit to its
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liability insurer. Instead, CP stood its ground and vowed to defeat the
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Rubins’ sham No Slab Sensor Claim. And, after enduring two and a half
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CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING
years of the Rubins’ deceptions, evasions, and sharp tactics, CP prevailed.
Facing certain defeat after their bluff had been called and their blatant fraud
exposed, the Rubins voluntarily dismissed their claims against CP. CP then
obtained an award and subsequent judgment for attorney’s fees and costs in
the amount of $577,424.75. The Rubins appealed the Judgment.
B. The Rubins’ history of vexatious litigation and bad faith tactics
in Santa Barbara County.
The Rubins, and in particular, Annette Rubin, have an extensive track
record of bad faith litigation conduct in Santa Barbara County. Much of it
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related to the remodel of the property that was the subject of this lawsuit
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(Marina Drive). The Rubins’ bad faith conduct resulted in massive harm to
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many parties. (Declaration of Daniel E. Engel, Esq. attached hereto at J 15.)
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(hereinafter “Engel Decl.”) And it resulted in a huge drain on valuable
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judicial resources best devoted elsewhere. This Court is aware of a large
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portion of it.
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This Court presided over Annette Rubin vs Frederick A Aspenlieter
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(15CV02057.) There, a jury did not believe a word of Annette Rubin’s
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testimony, and found that she stiffed the contractor for $30,615.32. And,
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after the verdict, the Court found that Annette Rubin had acted in bad faith,
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and imposed penalties and attorney’s fees against her. The Rubins appealed
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that Judgment, asserting a litany of meritless arguments that the Court of
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Appeals soundly rejected. (Engel Decl. {| 7 & Exhibit 2)
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This Court presided over Hope Ranch Park Homes Association vs A.
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Stuart Rubin et al. (17CV02874) There, the Court acting as the trier of fact,
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found that the penalty assessed against the Rubins was reasonable,
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warranted and enforceable and entered judgment for the HOA for $26,600.
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(Engel Decl. J 8 & Exhibit 3)
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CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING
And, of course, the Court has presided over this case. The Court will
recall that twice the Rubins deployed bad faith tactics designed to impose a
stay that would have required an indefinite continuance of the trial. First was
their dubious motion to disqualify CP’s counsel on the eve of trial, a tactic
obviously intended to force CP to retain new counsel, and necessarily require
a continuance. When that did not work, the Rubins appealed the order
denying their motion to disqualify and then tried to argue that the appeal
stayed the action, when it clearly did not. But, when this stunt not achieve
the desired result— to blow up the trial date — the Rubins dismissed the
10 appeal, thus proving that they had no intention of actually having the denial
11 of their disqualification motion reviewed. The other bad faith tactic designed
12 to cause the trial to be indefinitely delayed was the Rubins’ bad faith filing of
13 a Notice of Automatic Stay due to their having put their entity DLJJ &
14 Associates, LLC into Chapter 11 bankruptcy. That was another meritless
15 stunt designed to blow up the impending trial date. When their bankruptcy
16 counsel was confronted with potential repercussions, he withdrew the Notice
17 of Stay. All this was designed to put off the trial, and postpone their
18 inevitable defeat at trial. (Engel Decl. | 9 & Exhibit 4)
19 And, there were the two related cases involving Preferred Bank and its
20 efforts to foreclose on Marina Drive. These cases illustrate the lengths the
21 Rubins will go to thwart a creditor’s legitimate and meritorious efforts to
22 enforce their legal rights. In the first case, A Stuart Rubin et al vs Preferred
23 Bank et al. (20CV03206) the Rubins retained famed lender liability attorney
24 A. Barry Capello to sue Preferred Bank for a litany of alleged misconduct,
25 and to seek a TRO and Preliminary Injunction to prevent the forestall the
26 imminent foreclose of Marina Drive!. While a TRO was issued, the matter
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‘In keeping with their pattern, the Rubins stiffed Mr. Cappello and his firm for over $400,000 in
28 attorneys’ fees incurred in that case. An action to confirm an arbitration award is now pending: Cappello &
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CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING
settled after Judge Anderle issued his tentative to deny the preliminary
injunction. (Engel Decl. | 10 & Exhibit 5) There, Preferred Bank entered
into a forbearance agreement with the Rubins that resolved the litigation.
(Engel Decl. J 11 & Exhibit 6)
But when, as expected, the Rubins defaulted on the forbearance
agreement, Preferred Bank once again began foreclosure proceedings. As
before, the Rubins hired local counsel, Jared Katz, Esq. of Mullen and
Henzell, LLP? to file a second lawsuit against Preferred Bank alleging
another litany of meritless claims. (Engel Decl. J 12 & Exhibit 7) As before,
10 the Rubins sought a TRO and preliminary injunction which was denied.
11 (Engel Decl. {13 & Exhibit 8) The Rubins then appealed that ruling. And,
12 then they applied ex parte for a stay of the foreclosure, which Judge Anderle
13 denied. Then, the Rubins applied to the Court of Appeal for a stay and a
14 writ of supersedeas which were also denied. The Rubins never filed a brief,
15 and the appeal was dismissed.’ This second state court action against
16 Preferred Bank failed to stop the foreclosure.
17 After losing in state court, the Rubins’ effort to use legal process to
18 frustrate, hinder and delay Preferred Bank’s legitimate efforts to foreclose on
19 Marina Drive continued with their filing multiple bankruptcy cases. While
20 those were effective to cause delay and dramatically drive up the cost to
21 Preferred Bank, they did not prevent the foreclosure of Marina Drive. In fact,
22 the Bankruptcy Court dismissed the case after finding that the petition had
23 been filed in bad faith. (Engel Decl. J 14 & Exhibit 9)
24 This is just a sampling of the bad faith litigation tactics the Rubins
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26 Noel LLP vs Stuart Rubin et al (22CV04486.)
? True to form, the Rubins stiffed Mr. Katz and his firm for fees, leading him to file a motion to
27 withdraw that was heard on January 4, 2023.
* Since then, the Rubins have refused to respond to any of Preferred Bank’s discovery, leading to the
28 filing of numerous motions to compel and requests for sanctions.
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CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING
have habitually deployed. The full scope of their bad faith litigation tactics is
much greater.
Il. ARGUMENT
A. This Court has the power to order the Rubins to post an
undertaking in order to stay enforcement of the Judgment
pending appeal.
The Court has the power to order the Rubins to post an undertaking in
order to obtain a stay of enforcing the Judgment pending their appeal.
10 (Quiles v. Parent? (2017) 10 Cal. App. Sth 130, 148 [“California law
11 provides for a discretionary undertaking (§ 917.9, subd. (a)(3)) for litigants
12 [...] who have recovered substantial attorney fee awards in state court.”; Cal.
13 Code Civ. Proc. § 917.9, subd. (a)(3) ["The perfecting of an appeal shall not
14 stay enforcement of the judgment or order in cases not provided for in
15 Sections 917.1 to 917.8, inclusive, if the trial court, in its discretion, requires
16 an undertaking and the undertaking is not given, in any of the following
17 cases: ... (3) The judgment against appellant is solely for costs awarded to
18 the respondent by the trial court ...”].) Section 917.9 reflects “a legislative
19 intent to broaden the trial court's authority to require an undertaking as a
20 condition for a stay.”
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22 B.The Court should require the Rubins to post an undertaking in
order to stay enforcement of the Judgment pending appeal.
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1. The likelihood of reversal on appeal is nil.
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There is little chance that the Court’s awards of costs and attorney’s
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27 4 After the trial court required an undertaking to be provided, the judgment debtor appealed that
order. In an unpublished opinion, the very same court of appeals affirmed that order requiring a
28 discretionary undertaking.
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CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING
fees to CP will be reversed on appeal. Those orders will be reviewed for
abuse of discretion. (Ketchum v. Moses (2001) 24 Cal.4th 1122. "While the
concept "abuse of discretion" is not easily susceptible to precise definition,
the appropriate test has been enunciated in terms of whether or not the trial
court exceeded "the bounds of reason, all of the circumstances before it
being considered..." A decision will not be reversed merely because
reasonable people might disagree. An appellate tribunal is neither authorized
nor warranted in substituting its judgment for the judgment of the trial
judge. In the absence of a clear showing that its decision was arbitrary or
10 irrational, a trial court should be presumed to have acted to achieve
11 legitimate objectives and, accordingly, its discretionary determinations ought
12 not be set aside on review. " (Gouskos v. Aptos Village Garage, Inc. (2001)
13 94 Cal. App.4th 754, 762 (internal citations and quotations omitted))
14 Accordingly, an abuse of discretion transpires if "the trial court exceeded the
15 bounds of reason" in making its award of attorney fees. (Dove Audio, Inc. v.
16 Rosenfeld, Meyer & Susman (1996) 47 Cal. App.4th 777, 785.)
17 Because an award of attorneys' fees is governed by equitable principles,
18 "the trial court has broad authority to determine the amount of a reasonable
19 fee." (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The
20 trial judge "is the best judge of the value of professional services rendered in
21 his [or her] court, and while his [or her] judgment is of course subject to
22 review, it will not be disturbed unless the appellate court is convinced that it
23 is clearly wrong.” (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) A trial court's
24 attorney fee award will not be set aside "absent a showing that it is
25 manifestly excessive in the circumstances." (Lunada Biomedical v. Nunez
26 (2014) 230 Cal.App.4th 459, 487.)
27 Based on the foregoing deferential standard, it is highly unlikely that
28 the Court of Appeals will reverse the Judgment. The Court made no errors of
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CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING
law. And, it most certainly did not abuse its discretion. As experienced as
they are with litigation, it’s a safe bet that the Rubins know full well that the
chance that the Court of Appeals will find that this Court’s order granting
CP’s motion for attorney’s fees or taxing cost was arbitrary, irrational, or
beyond the bounds of reason is next to nil. Thus, the Rubins’ motivation
could not be to actually win on appeal. Rather, it is solely to delay and
ultimately thwart CP’s collection of the Judgment.
2. The Court should require an undertaking to avoid prejudice
to CP.
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CP respectfully requests that the Court protect it by requiring the
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Rubins to provide an undertaking in order to stay enforcement of the
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Judgment. The Rubins have been gaming the legal system for years,
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deploying every tactic, trick and scheme they can to frustrate, hinder and
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delay their creditors’ efforts to collect from them the sums they are duly
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owed. The Rubins’ record of filing meritless lawsuits, motions, appeals and
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bankruptcy cases solely to cause delay and drive up the cost to their
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opponents is as extensive as it is oppressive. The instant appeal is just
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another such tactic. The Court can and, respectfully, should protect CP from
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this prejudice and oppression by ordering the Rubins to provide an
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undertaking in order to stay enforcement of the Judgment.
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If the Judgment were an ordinary money judgment, like, for example,
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the one entered in favor of McCoy Electric Corporation in this action, then
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the Rubins would be automatically required to provide an undertaking in
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order to stay enforcement. Here, while the Judgment is for costs only, it is
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still for a very large amount. Therefore, there is no practical or equitable
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reason to treat the McCoy judgment any differently than the Judgment. It
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would be highly prejudicial to CP if McCoy got the benefit of the
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CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING
undertaking requirement, while it did not. It is telling that the Rubins did not
appeal the judgment in favor McCoy. Granting this Application will merely
put CP on an equal footing with McCoy and other similarly situated
judgment creditors. Conversely, denying this Application will put CP in
seriously disadvantaged position, potentially making it impossible to collect
the Judgment.
If the Rubins truly believe that their appeal has merit and will result in
the Judgment being vacated, then they should have no problem providing an
undertaking. But, given their proven track record, it is extremely unlikely
10 that the Rubins will continue to pursue their appeal if the Court requires an
11 undertaking in order to stay enforcement of the Judgment. That is because
12 their primary purpose — to stay enforcement — would be thwarted. And, it
13 would require them to reveal their financial condition and disclose their
14 assets.
15 CP has no illusions about how long it will take and how hard it will be
16 to enforce the Judgment against the Rubins. It is prepared to put in the time
17 and effort. The only thing standing it its way is the stay imposed by the
18 Rubins’ appeal.
19 The delay occasioned by the stay could prove extremely prejudicial to
20 CP. The Rubins have many creditors that CP has to compete with in order to
21 collect the sums owed to it. The stay imposed puts CP at a severe
22 disadvantage. Granting this application and requiring the Rubins to provide
23 an undertaking will protect CP from this unfair prejudice, and put it in the
24 same position as other creditors with regular money judgments.
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26 3. The undertaking should be for 1.25 times the amount of the
Judgment.
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CP requests that the Court order the Rubins to provide an undertaking
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CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING
equal to 1.2 times the amount of the Judgment as this is the amount
necessary to cover the interest that will accrue and the attorney’s fees and
costs that will be reasonably incurred litigating the appeal. One year’s
interest will be approximately $57,000. And, CP anticipates incurring
$50,000 in fees on the appeal.
IV. CONCLUSION
For the foregoing reasons, CP requests that the Court grant this
Application and protect it from the Rubins’ oppressive bad faith delay tactics
10 by requiring them to prove an undertaking equal to 1.2 times the amount of
11 the Judgment in order to stay enforcement thereof pending the appeal.
12 Alternatively, CP requests that this matter be heard as a noticed motion on
13 shortened time.
14
15 DATED: January 4, 2023
16 (
17
{
+ C
18 Daniel E. Engel, Esq.
Attorney for Construction Plumbing
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CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING
DECLARATION OF DANIEL E. ENGEL, ESQ.
Declaration of Daniel E. Engel, Esq.
I, Daniel Eric Engel, state and declare as follows:
1) Iam an active member of the State Bar of California.
2) Irepresent The Las Canoas Co. dba Construction Plumbing (CP) in this
action.
3) I make this declaration in support of CP’s EX PARTE APPLICATION
FOR AN ORDER REQUIRING AN UNDERTAKING UNDER CAL.
10
CODE CIV. PROC. § 917.9
11
4) The matters set forth herein are of my own personal knowledge, and if
12
called as a witness herein, I could and would testify competently thereto
13
5) As to matters stated on information and belief, a sincerely believe them to
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be true.
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6) Attached hereto as Exhibit 1 is a true and correct copy of a printout I
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made from the Court’s website showing the number of lawsuits the
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Rubins have been a party to in Santa Barbara County.
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7) Attached hereto as Exhibit 2 is a true and correct copy of unpublished
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opinion of the Court of Appeals that affirmed the judgment in the Rubin
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v. Aspenleiter case.
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8) Attached hereto as Exhibit 3 is a true and correct copy of the Statement of
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Decision in the Hope Ranch Park Owners Association v. Rubin case.
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9) Attached hereto as Exhibit 4 is a true and correct copy of the Statement of
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Decision in from the trial held in this case McCoy v. Rubin.
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10) Attached hereto as Exhibit 5 is a true and correct copy of Judge
Anderle’s tentative ruling to deny the motion for preliminary injunction in
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the first Rubin v. Preferred Bank lawsuit.
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10
CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING
11) Attached hereto as Exhibit 6 is a true and correct copy of the
Forbearance Agreement that the Rubins entered into with Preferred Bank
and which was the basis for the settlement of their first lawsuit against
Preferred Bank.
12) Attached hereto as Exhibit 7 is a true and correct copy of a printout I
made from the Court’s website showing the docket from the second
lawsuit the Rubins filed against Preferred Bank in their unsuccessful effort
to prevent the foreclosure of Marina Drive.
13) Attached hereto as Exhibit 8 is a true and correct copy of the order
10 denying the Rubins’ motion for preliminary injunction in their second
11 lawsuit against Preferred Bank to prevent the foreclosure of Marina Drive
12 14) Attached hereto as Exhibit 9 is a true and correct copy of the order
13 dismissing the bankruptcy case filed by DLJJ & Associates, LLC. The
14 Rubins used this bankruptcy case to wrongfully file a Notice of Stay in
15 this case, hoping to derail the pending trial.
16 15) There are many parties that the Rubins cheated that decided it was not
17 worth it to sue the Rubins over. For example, I personally interviewed the
18 contractor that installed the marble floors at Marina Drive. He told me
19 that the Rubins stiffed him for over $130,000.
20 16)Prior to the Rubins filing their appeal, I began efforts to collect the
21 Judgment. The stay imposed by the appeal is extremely prejudicial to CP.
22 CP has to compete with numerous creditors who are also attempting to
23 enforce judgments or otherwise collect debts from the Rubins. CP will
24 suffer severe prejudice and irreparable harm if it is prevented from
25 enforcing the Judgment now. The Rubins are likely to use the delay
26 flowing from a stay pending appeal to dissipate their assets, hide them or
27 otherwise move them out of CP’s reach. Hence, the decision to present
28 this matter on an ex parte basis. I truly feel that time is of the essence, and
11
CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING
that this matter cannot wait to be heard on the normal calendar.
17)If the Court does not feel the matter is suitable for adjudication on an ex
parte basis, then CP asks that the Court set the matter for hearing as a
noticed motion on shortened time.
18) Attached hereto as Exhibit 10 is a true and correct copy of the email I
sent to Patrick McGarrigle giving him notice of this ex parte application.
I declare under the laws of the State of California that the foregoing is true
and correct.
10
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Daniel E/Engel
12 Attorney for Construction Plumbing
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CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING
Exhibit
To Declaration of Daniel Engel in support of Ex Parte Application for
Order Requiring an Undertaking per CCP 917.9, subd. (a)(3)
12/29/22, 5:15 AM Search Results
Party Search Results
Name Y Date of Birth
Rubin, Annette
Cases (3)
Cases
16CV03591
McCoy Electric Corporation vs Annette Rubin et al
File Date Type Location
08/15/2016 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa
15CV02057
Annette Rubin vs Frederick A Aspenlieter et al
File Date Type Location
07/21/2015 Unlimited Other Real Property (26) Santa Barbara - Anacapa
1402235
Annette Rubin vs AJ Precision Concrete Inc
File Date Type Location
06/11/2012 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
1402235
Annette Rubin vs AJ Precision Concrete Inc
File Date Type Location
06/11/2012 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
https://portal.sbcourts. org/CASBPORTAL/Home/WorkspaceMode?p=0 118
12/29/22, 5:15 AM Search Results
1402235
Annette Rubin vs AJ Precision Concrete Inc
File Date Type Location
06/11/2012 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
1402235
Annette Rubin vs AJ Precision Concrete Inc
File Date Type Location
06/11/2012 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
1413763
Homer T Hayward Lumber CO vs Lindsey Adams etc et al
File Date Type Location
10/09/2012 06-Contract - Breach Cont/Warranty - Civil (Limited) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
1415472
Annette Rubin vs Leonard Unander Associates Inc
File Date Type Location
01/29/2013 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
1415473
Annette Rubin vs Leonard Unander Associates Inc
https://portal.sbcourts. org/CASBPORTAL/Home/WorkspaceMode?p=0 2/8
12/29/22, 5:15 AM Search Results
File Date Type Location
01/29/2013 Unlimited Other Real Property (26) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
1415687
Annette Rubin vs Lindsey Adams Construction Inc
File Date Type Location
02/13/2013 Unlimited Other Real Property (26) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
1438944
Annette Rubin vs Montebaro Masonry Inc
File Date Type Location
11/22/2013 06-Contract - Breach Cont/Warranty - Civil (Limited) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
1439695
Monteabaro Masonry Inc vs Annette Rubin et al
File Date Type Location
01/21/2014 06-Contract - Breach Cont/Warranty - Civil (Limited) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
1486984
Annette Rubin vs Thomas Drywall Inc
File Date Type Location
02/11/2015 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa
https://portal.sbcourts. org/CASBPORTAL/Home/WorkspaceMode?p=0 3/8
12/29/22, 5:15 AM Search Results
Rubin, Annette
Cases (1)
Cases
15CV02057
Annette Rubin vs Frederick
A Aspenlieter et al
File Date Type Location
07/21/2015 Unlimited Other Real Property (26) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
16CV03591
McCoy Electric Corporation vs Annette Rubin et al
File Date Type Location
08/15/2016 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
16CV03591
McCoy Electric Corporation vs Annette Rubin et al
File Date Type Location
08/15/2016 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
16CV03591
McCoy Electric Corporation vs Annette Rubin et al
File Date Type Location
08/15/2016 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa
Rubin, Annette
https://portal.sbcourts. org/CASBPORTAL/Home/WorkspaceMode?p=0 48
12/29/22, 5:15 AM Search Results
Cases (1)
Cases
16CV03591
McCoy Electric Corporation vs Annette Rubin et al
File Date Type Location
08/15/2016 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
17CV02874
Hope Ranch Park Homes Association vs A Stuart Rubin et al
File Date Type Location
06/29/2017 Unlimited Other Real Property (26) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
18CV03254
Ernesto Vancini Molina vs Annette Rubin et al
File Date Type Location
06/28/2018 Unlimited Civil Appeal Labor Commission Award Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
19CV05494
Down to Earth Landscapes Inc vs Annette Rubin
File Date Type Location
10/15/2019 Limited Breach of Contract/Warranty (06) - under 10,000 Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
https://portal.sbcourts. org/CASBPORTAL/Home/WorkspaceMode?p=0 5/8
12/29/22, 5:15 AM Search Results
19CV06203
Ernesto Guadarrama vs Annette Rubin et al
File Date Type Location
11/21/2019 Unlimited Civil Appeal Labor Commission Award Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
20CV03206
A Stuart Rubin et al vs Preferred Bank et al
File Date Type Location
10/02/2020 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
20CV03206
A Stuart Rubin et al vs Preferred Bank et al
File Date Type Location
10/02/2020 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
21CV03982
A Stuart Rubin et al vs Preferred Bank
File Date Type Location
10/06/2021 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
21CV03982
A Stuart Rubin et al vs Preferred Bank
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File Date Type Location
10/06/2021 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
21CV03982
AStuart Rubin et al vs Preferred Bank
File Date Type Location
10/06/2021 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
22CV00891
Ira Cornell Electric Inc vs Daniel Wallace et al
File Date Type Location
03/03/2022 Unlimited Other Complaint (Not Spec) (42) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
22CV00965
Cruz & Cruz Electrical Inc vs Annette Rubin et al
File Date Type Location
03/10/2022 Unlimited Construction Defect (10) Santa Barbara - Anacapa
Rubin, Annette
Cases (1)
Cases
22CV04486
Cappello & Noel LLP vs Stuart Rubin et al
File Date Type Location
11/14/2022 Unlimited Petition re:Arbitration Award (11) Santa Barbara - Anacapa
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Rubin, Annette M
Cases (1)
Cases
21CV02121
Brandon Ruiz vs DLJJ & Associates LLC et al
File Date Type Location
05/28/2021 Limited Other Contract (37) - 10,000 - 25,000 Santa Barbara - Anacapa
Rubin, Annette M
Cases (1)
Cases
21CV02121
Brandon Ruiz vs DLJJ & Associates LLC et al
File Date Type Location
05/28/2021 Limited Other Contract (37) - 10,000 - 25,000 Santa Barbara - Anacapa
Rubin, Annette Maxine XX/XX/XXXX
Cases (1)
Cases
JA91510
Rubin, Annette Maxine
File Date Type Location
07/08/2019 Infraction (Vehicle Code) Santa Barbara - Figueroa - Traffic
Rubin, Annette
Cases (1)
Cases
22CV04486
Cappello & Noel LLP vs Stuart Rubin et al
File Date Type Location
11/14/2022 Unlimited Petition re:Arbitration Award (11) Santa Barbara - Anacapa
1 - 32 of 32 items
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Exhibit
To Declaration of Daniel Engel in support of Ex Parte Application for
Order Requiring an Undertaking per CCP 917.9, subd. (a)(3)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ing or re‘lying on opinions
{ 33
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citii
not certified for publication or ordered published, except as specified by rule Batis is opinion
as not been cettified for publication or ordered published for purposes of rule 8.1
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
ANNETTE RUBIN, 2d Civ. No. B295455
(Super. Ct. No. 15CV02057)
Plaintiff, Cross-defendant (Santa Barbara County)
and Appellant,
COURT OF APPEAL = SECOND DIST.
v
FREDERICK A.
FILED
ASPENLEITER, Feb 04, 2020
DANIEL P. POTTER, Clerk
Nhalhoul Deputy Clerk
Defendant and Respondent;
ASPEN CUSTOM
WOODWORKING, INC.,
Defendant, Cross-
complainant and Respondent.
A homeowner sued a corporate contractor and its principal
alleging breach of a construction contract. The corporate
contractor cross-complained for damages for breach. A jury found
against the homeowner on the complaint, and awarded damages
to the contractor on the cross-complaint. The judgment on the
cross-complaint states that it is in favor of both the contractor
and the principal. We correct the error by removing the principal
from the judgment as not a party to the cross-complaint. In all
other respects, we affirm.
FACTS
Annette Rubin hired Aspen Custom Interior Woodworking,
Inc. (Aspen) pursuant to an oral contract to furnish and install
interior finish work in her home on a time and materials basis.
Aspen is owned by Frederick Aspenleiter. Aspenleiter hired
subcontractors to help with the work. Rubin agreed to pay Aspen
weekly for the services provided at $65 per hour.
For the first six months of the job, Rubin paid Aspen
weekly as agreed and Aspen paid its subcontractors. Thereafter,
Rubin stopped paying Aspen, claiming that she lost the invoices
or that her bookkeeper needed m
Preview
ELECTRONICALLY FILED Superior Court of California County of Santa Barbara Daniel E. Engel, Esq. (167231) Darrel E. Parker, Executive Officer dan@danielengel.law 1/4/2023 5:11 PM By: Terri Chavez , Deputy 6845 Amestoy Avenue Lake Balboa, CA 91406-4445 Tel: (818) 312-0637 Attorney for Cross-Defendant The Las Canoas Co. dba Construction Plumbing SANTA BARBARA COUNTY SUPERIOR COURT ANACAPA DIVISION 10 Case No. 16CV03591 11 Hearing: Jan 6, 2023, 8:30 a.m. Dept. 5 12 MCCOY ELECTRIC, Trial Date: N/A 13 Complaint Filed: Sept. 19, 2019 14 Plaintiff, THE LAS CANOAS CO. DBA 15 CONSTRUCTION PLUMBING’S EX vs. PARTE APPLICATION FOR AN ORDER REQUIRING AN ANNETTE RUBIN ET AL. 17 UNDERTAKING UNDER CAL. CODE CIV. PROC. § 917.9, OR, 18 ALTERNATIVELY, FOR AN ORDER Defendants. 19 SHORTENING TIME; DECLARATION OF DANIEL E. 20 ENGEL, ESQ. 21 (And related cross action(s)...) 22 (Hon. Colleen K. Sterne, Dept. 5) 23 24 25 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 26 PLEASE TAKE NOTICE that on Friday, January 6, 2023, at 8:30 27 a.m., or as soon thereafter as the matter may be heard in Department 5 of 28 1 CONSTRUCTION PLUMBING’S EX PARTE APPLICATION TO REQUIRE AN UNDERTAKING the Superior Court of the State of California for the County of Santa Barbara located at 1100 Anacapa Street, Santa Barbara, CA 93101, cross-defendant and judgment creditor The Las Canoas Co. Dba Construction Plumbing (CP) will, and does hereby apply, ex parte, for an order requiring cross- complainants and judgment debtors Annette Rubin and A. Stuart Rubin to post an undertaking pursuant to California Code of Civil Procedure section 917.9. Alternatively, CP applies for an order shortening time to hear this request for relief as noticed motion. For the reasons discussed below, good cause exists for the Court to grant this Application and order that the Rubins 10 provide an undertaking equal to 1.2 times the amount of the judgment 11 entered on November 23, 2022 in favor of CP in order to stay enforcement 12 thereof. 13 This Application is made pursuant to Cal. Code Civ. Proc. § 917.9, 14 subd. (a)(3) on the grounds that the Court, in the interests of justice, should 15 require the Rubins to post an undertaking equal to 1.2 times the amount of 16 the Judgment as condition of having a stay of enforcement of the judgment 17 entered on November 23, 2022. 18 This Application is based upon this Application, the attached 19 memorandum of points and authorities, and the declaration of Daniel E. 20 Engel, Esq., served and filed concurrently herewith, along with all other 21 matters of which the Court may take judicial notice, the oral argument of 22 counsel, pleadings and declarations already on file with the Court, and all 23 other evidence that may be presented at the hearing on this matter. 24 25 26 27 Daniel E’Engel 28 Attorney for Construction Plumbing ii CONSTRUCTION PLUMBING’S EX PARTE APPLICATION TO REQUIRE AN UNDERTAKING MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION This Court treat the Rubins’ appeal of the judgment entered in favor of CP (the “Judgment”) for what it is: A tactic deployed solely to stay enforcement of the Judgment pending appeal without having to post an undertaking. The Rubins did not file the appeal because they think the appellate court will find that the Court abused its discretion or that its orders awarding costs attorney’s fees were clearly wrong. In reality, the Rubins 10 appealed the Judgment for the sole purpose of frustrating, hindering and 11 delaying CP’s efforts to enforce the Judgment. The Court need not go along 12 with their latest bad faith litigation tactic. The Court can, and respectfully, 13 should exercise its discretion and require the Rubins to provide an 14 undertaking in amount 1.2 times the amount of the Judgment in order to 15 stay enforcement thereof. 16 17 I. BACKGROUND FACTS 18 19 A. The Judgment Annette Rubin and A. Stuart Rubin (Rubins) sued The Las Canoas Co. 20 dba Construction Plumbing (CP) for $10,000,000 based on the assertion that 21 CP was obligated, but failed to install temperature sensors (Slab Sensors) 22 together the PEX tubing component of a engineered hydronic radiant space 23 heating system (RHS) at their remodel project on Marina Drive in Santa 24 Barbara (Project). Seeing this lawsuit for the fraudulent shakedown scheme it 25 has now been proven to be, CP elected not to tender this lawsuit to its 26 liability insurer. Instead, CP stood its ground and vowed to defeat the 27 Rubins’ sham No Slab Sensor Claim. And, after enduring two and a half 28 1 CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING years of the Rubins’ deceptions, evasions, and sharp tactics, CP prevailed. Facing certain defeat after their bluff had been called and their blatant fraud exposed, the Rubins voluntarily dismissed their claims against CP. CP then obtained an award and subsequent judgment for attorney’s fees and costs in the amount of $577,424.75. The Rubins appealed the Judgment. B. The Rubins’ history of vexatious litigation and bad faith tactics in Santa Barbara County. The Rubins, and in particular, Annette Rubin, have an extensive track record of bad faith litigation conduct in Santa Barbara County. Much of it 10 related to the remodel of the property that was the subject of this lawsuit 11 (Marina Drive). The Rubins’ bad faith conduct resulted in massive harm to 12 many parties. (Declaration of Daniel E. Engel, Esq. attached hereto at J 15.) 13 (hereinafter “Engel Decl.”) And it resulted in a huge drain on valuable 14 judicial resources best devoted elsewhere. This Court is aware of a large 15 portion of it. 16 This Court presided over Annette Rubin vs Frederick A Aspenlieter 17 (15CV02057.) There, a jury did not believe a word of Annette Rubin’s 18 testimony, and found that she stiffed the contractor for $30,615.32. And, 19 after the verdict, the Court found that Annette Rubin had acted in bad faith, 20 and imposed penalties and attorney’s fees against her. The Rubins appealed 21 that Judgment, asserting a litany of meritless arguments that the Court of 22 Appeals soundly rejected. (Engel Decl. {| 7 & Exhibit 2) 23 This Court presided over Hope Ranch Park Homes Association vs A. 24 Stuart Rubin et al. (17CV02874) There, the Court acting as the trier of fact, 25 found that the penalty assessed against the Rubins was reasonable, 26 warranted and enforceable and entered judgment for the HOA for $26,600. 27 (Engel Decl. J 8 & Exhibit 3) 28 2 CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING And, of course, the Court has presided over this case. The Court will recall that twice the Rubins deployed bad faith tactics designed to impose a stay that would have required an indefinite continuance of the trial. First was their dubious motion to disqualify CP’s counsel on the eve of trial, a tactic obviously intended to force CP to retain new counsel, and necessarily require a continuance. When that did not work, the Rubins appealed the order denying their motion to disqualify and then tried to argue that the appeal stayed the action, when it clearly did not. But, when this stunt not achieve the desired result— to blow up the trial date — the Rubins dismissed the 10 appeal, thus proving that they had no intention of actually having the denial 11 of their disqualification motion reviewed. The other bad faith tactic designed 12 to cause the trial to be indefinitely delayed was the Rubins’ bad faith filing of 13 a Notice of Automatic Stay due to their having put their entity DLJJ & 14 Associates, LLC into Chapter 11 bankruptcy. That was another meritless 15 stunt designed to blow up the impending trial date. When their bankruptcy 16 counsel was confronted with potential repercussions, he withdrew the Notice 17 of Stay. All this was designed to put off the trial, and postpone their 18 inevitable defeat at trial. (Engel Decl. | 9 & Exhibit 4) 19 And, there were the two related cases involving Preferred Bank and its 20 efforts to foreclose on Marina Drive. These cases illustrate the lengths the 21 Rubins will go to thwart a creditor’s legitimate and meritorious efforts to 22 enforce their legal rights. In the first case, A Stuart Rubin et al vs Preferred 23 Bank et al. (20CV03206) the Rubins retained famed lender liability attorney 24 A. Barry Capello to sue Preferred Bank for a litany of alleged misconduct, 25 and to seek a TRO and Preliminary Injunction to prevent the forestall the 26 imminent foreclose of Marina Drive!. While a TRO was issued, the matter 27 ‘In keeping with their pattern, the Rubins stiffed Mr. Cappello and his firm for over $400,000 in 28 attorneys’ fees incurred in that case. An action to confirm an arbitration award is now pending: Cappello & 3 CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING settled after Judge Anderle issued his tentative to deny the preliminary injunction. (Engel Decl. | 10 & Exhibit 5) There, Preferred Bank entered into a forbearance agreement with the Rubins that resolved the litigation. (Engel Decl. J 11 & Exhibit 6) But when, as expected, the Rubins defaulted on the forbearance agreement, Preferred Bank once again began foreclosure proceedings. As before, the Rubins hired local counsel, Jared Katz, Esq. of Mullen and Henzell, LLP? to file a second lawsuit against Preferred Bank alleging another litany of meritless claims. (Engel Decl. J 12 & Exhibit 7) As before, 10 the Rubins sought a TRO and preliminary injunction which was denied. 11 (Engel Decl. {13 & Exhibit 8) The Rubins then appealed that ruling. And, 12 then they applied ex parte for a stay of the foreclosure, which Judge Anderle 13 denied. Then, the Rubins applied to the Court of Appeal for a stay and a 14 writ of supersedeas which were also denied. The Rubins never filed a brief, 15 and the appeal was dismissed.’ This second state court action against 16 Preferred Bank failed to stop the foreclosure. 17 After losing in state court, the Rubins’ effort to use legal process to 18 frustrate, hinder and delay Preferred Bank’s legitimate efforts to foreclose on 19 Marina Drive continued with their filing multiple bankruptcy cases. While 20 those were effective to cause delay and dramatically drive up the cost to 21 Preferred Bank, they did not prevent the foreclosure of Marina Drive. In fact, 22 the Bankruptcy Court dismissed the case after finding that the petition had 23 been filed in bad faith. (Engel Decl. J 14 & Exhibit 9) 24 This is just a sampling of the bad faith litigation tactics the Rubins 25 26 Noel LLP vs Stuart Rubin et al (22CV04486.) ? True to form, the Rubins stiffed Mr. Katz and his firm for fees, leading him to file a motion to 27 withdraw that was heard on January 4, 2023. * Since then, the Rubins have refused to respond to any of Preferred Bank’s discovery, leading to the 28 filing of numerous motions to compel and requests for sanctions. 4 CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING have habitually deployed. The full scope of their bad faith litigation tactics is much greater. Il. ARGUMENT A. This Court has the power to order the Rubins to post an undertaking in order to stay enforcement of the Judgment pending appeal. The Court has the power to order the Rubins to post an undertaking in order to obtain a stay of enforcing the Judgment pending their appeal. 10 (Quiles v. Parent? (2017) 10 Cal. App. Sth 130, 148 [“California law 11 provides for a discretionary undertaking (§ 917.9, subd. (a)(3)) for litigants 12 [...] who have recovered substantial attorney fee awards in state court.”; Cal. 13 Code Civ. Proc. § 917.9, subd. (a)(3) ["The perfecting of an appeal shall not 14 stay enforcement of the judgment or order in cases not provided for in 15 Sections 917.1 to 917.8, inclusive, if the trial court, in its discretion, requires 16 an undertaking and the undertaking is not given, in any of the following 17 cases: ... (3) The judgment against appellant is solely for costs awarded to 18 the respondent by the trial court ...”].) Section 917.9 reflects “a legislative 19 intent to broaden the trial court's authority to require an undertaking as a 20 condition for a stay.” 21 22 B.The Court should require the Rubins to post an undertaking in order to stay enforcement of the Judgment pending appeal. 23 24 1. The likelihood of reversal on appeal is nil. 25 There is little chance that the Court’s awards of costs and attorney’s 26 27 4 After the trial court required an undertaking to be provided, the judgment debtor appealed that order. In an unpublished opinion, the very same court of appeals affirmed that order requiring a 28 discretionary undertaking. 5 CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING fees to CP will be reversed on appeal. Those orders will be reviewed for abuse of discretion. (Ketchum v. Moses (2001) 24 Cal.4th 1122. "While the concept "abuse of discretion" is not easily susceptible to precise definition, the appropriate test has been enunciated in terms of whether or not the trial court exceeded "the bounds of reason, all of the circumstances before it being considered..." A decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. In the absence of a clear showing that its decision was arbitrary or 10 irrational, a trial court should be presumed to have acted to achieve 11 legitimate objectives and, accordingly, its discretionary determinations ought 12 not be set aside on review. " (Gouskos v. Aptos Village Garage, Inc. (2001) 13 94 Cal. App.4th 754, 762 (internal citations and quotations omitted)) 14 Accordingly, an abuse of discretion transpires if "the trial court exceeded the 15 bounds of reason" in making its award of attorney fees. (Dove Audio, Inc. v. 16 Rosenfeld, Meyer & Susman (1996) 47 Cal. App.4th 777, 785.) 17 Because an award of attorneys' fees is governed by equitable principles, 18 "the trial court has broad authority to determine the amount of a reasonable 19 fee." (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The 20 trial judge "is the best judge of the value of professional services rendered in 21 his [or her] court, and while his [or her] judgment is of course subject to 22 review, it will not be disturbed unless the appellate court is convinced that it 23 is clearly wrong.” (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) A trial court's 24 attorney fee award will not be set aside "absent a showing that it is 25 manifestly excessive in the circumstances." (Lunada Biomedical v. Nunez 26 (2014) 230 Cal.App.4th 459, 487.) 27 Based on the foregoing deferential standard, it is highly unlikely that 28 the Court of Appeals will reverse the Judgment. The Court made no errors of 6 CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING law. And, it most certainly did not abuse its discretion. As experienced as they are with litigation, it’s a safe bet that the Rubins know full well that the chance that the Court of Appeals will find that this Court’s order granting CP’s motion for attorney’s fees or taxing cost was arbitrary, irrational, or beyond the bounds of reason is next to nil. Thus, the Rubins’ motivation could not be to actually win on appeal. Rather, it is solely to delay and ultimately thwart CP’s collection of the Judgment. 2. The Court should require an undertaking to avoid prejudice to CP. 10 CP respectfully requests that the Court protect it by requiring the 11 Rubins to provide an undertaking in order to stay enforcement of the 12 Judgment. The Rubins have been gaming the legal system for years, 13 deploying every tactic, trick and scheme they can to frustrate, hinder and 14 delay their creditors’ efforts to collect from them the sums they are duly 15 owed. The Rubins’ record of filing meritless lawsuits, motions, appeals and 16 bankruptcy cases solely to cause delay and drive up the cost to their 17 opponents is as extensive as it is oppressive. The instant appeal is just 18 another such tactic. The Court can and, respectfully, should protect CP from 19 this prejudice and oppression by ordering the Rubins to provide an 20 undertaking in order to stay enforcement of the Judgment. 21 If the Judgment were an ordinary money judgment, like, for example, 22 the one entered in favor of McCoy Electric Corporation in this action, then 23 the Rubins would be automatically required to provide an undertaking in 24 order to stay enforcement. Here, while the Judgment is for costs only, it is 25 still for a very large amount. Therefore, there is no practical or equitable 26 reason to treat the McCoy judgment any differently than the Judgment. It 27 would be highly prejudicial to CP if McCoy got the benefit of the 28 7 CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING undertaking requirement, while it did not. It is telling that the Rubins did not appeal the judgment in favor McCoy. Granting this Application will merely put CP on an equal footing with McCoy and other similarly situated judgment creditors. Conversely, denying this Application will put CP in seriously disadvantaged position, potentially making it impossible to collect the Judgment. If the Rubins truly believe that their appeal has merit and will result in the Judgment being vacated, then they should have no problem providing an undertaking. But, given their proven track record, it is extremely unlikely 10 that the Rubins will continue to pursue their appeal if the Court requires an 11 undertaking in order to stay enforcement of the Judgment. That is because 12 their primary purpose — to stay enforcement — would be thwarted. And, it 13 would require them to reveal their financial condition and disclose their 14 assets. 15 CP has no illusions about how long it will take and how hard it will be 16 to enforce the Judgment against the Rubins. It is prepared to put in the time 17 and effort. The only thing standing it its way is the stay imposed by the 18 Rubins’ appeal. 19 The delay occasioned by the stay could prove extremely prejudicial to 20 CP. The Rubins have many creditors that CP has to compete with in order to 21 collect the sums owed to it. The stay imposed puts CP at a severe 22 disadvantage. Granting this application and requiring the Rubins to provide 23 an undertaking will protect CP from this unfair prejudice, and put it in the 24 same position as other creditors with regular money judgments. 25 26 3. The undertaking should be for 1.25 times the amount of the Judgment. 27 CP requests that the Court order the Rubins to provide an undertaking 28 8 CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING equal to 1.2 times the amount of the Judgment as this is the amount necessary to cover the interest that will accrue and the attorney’s fees and costs that will be reasonably incurred litigating the appeal. One year’s interest will be approximately $57,000. And, CP anticipates incurring $50,000 in fees on the appeal. IV. CONCLUSION For the foregoing reasons, CP requests that the Court grant this Application and protect it from the Rubins’ oppressive bad faith delay tactics 10 by requiring them to prove an undertaking equal to 1.2 times the amount of 11 the Judgment in order to stay enforcement thereof pending the appeal. 12 Alternatively, CP requests that this matter be heard as a noticed motion on 13 shortened time. 14 15 DATED: January 4, 2023 16 ( 17 { + C 18 Daniel E. Engel, Esq. Attorney for Construction Plumbing 19 20 21 22 23 24 25 26 27 28 9 CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING DECLARATION OF DANIEL E. ENGEL, ESQ. Declaration of Daniel E. Engel, Esq. I, Daniel Eric Engel, state and declare as follows: 1) Iam an active member of the State Bar of California. 2) Irepresent The Las Canoas Co. dba Construction Plumbing (CP) in this action. 3) I make this declaration in support of CP’s EX PARTE APPLICATION FOR AN ORDER REQUIRING AN UNDERTAKING UNDER CAL. 10 CODE CIV. PROC. § 917.9 11 4) The matters set forth herein are of my own personal knowledge, and if 12 called as a witness herein, I could and would testify competently thereto 13 5) As to matters stated on information and belief, a sincerely believe them to 14 be true. 15 6) Attached hereto as Exhibit 1 is a true and correct copy of a printout I 16 made from the Court’s website showing the number of lawsuits the 17 Rubins have been a party to in Santa Barbara County. 18 7) Attached hereto as Exhibit 2 is a true and correct copy of unpublished 19 opinion of the Court of Appeals that affirmed the judgment in the Rubin 20 v. Aspenleiter case. 21 8) Attached hereto as Exhibit 3 is a true and correct copy of the Statement of 22 Decision in the Hope Ranch Park Owners Association v. Rubin case. 23 9) Attached hereto as Exhibit 4 is a true and correct copy of the Statement of 24 Decision in from the trial held in this case McCoy v. Rubin. 25 26 10) Attached hereto as Exhibit 5 is a true and correct copy of Judge Anderle’s tentative ruling to deny the motion for preliminary injunction in 27 the first Rubin v. Preferred Bank lawsuit. 28 10 CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING 11) Attached hereto as Exhibit 6 is a true and correct copy of the Forbearance Agreement that the Rubins entered into with Preferred Bank and which was the basis for the settlement of their first lawsuit against Preferred Bank. 12) Attached hereto as Exhibit 7 is a true and correct copy of a printout I made from the Court’s website showing the docket from the second lawsuit the Rubins filed against Preferred Bank in their unsuccessful effort to prevent the foreclosure of Marina Drive. 13) Attached hereto as Exhibit 8 is a true and correct copy of the order 10 denying the Rubins’ motion for preliminary injunction in their second 11 lawsuit against Preferred Bank to prevent the foreclosure of Marina Drive 12 14) Attached hereto as Exhibit 9 is a true and correct copy of the order 13 dismissing the bankruptcy case filed by DLJJ & Associates, LLC. The 14 Rubins used this bankruptcy case to wrongfully file a Notice of Stay in 15 this case, hoping to derail the pending trial. 16 15) There are many parties that the Rubins cheated that decided it was not 17 worth it to sue the Rubins over. For example, I personally interviewed the 18 contractor that installed the marble floors at Marina Drive. He told me 19 that the Rubins stiffed him for over $130,000. 20 16)Prior to the Rubins filing their appeal, I began efforts to collect the 21 Judgment. The stay imposed by the appeal is extremely prejudicial to CP. 22 CP has to compete with numerous creditors who are also attempting to 23 enforce judgments or otherwise collect debts from the Rubins. CP will 24 suffer severe prejudice and irreparable harm if it is prevented from 25 enforcing the Judgment now. The Rubins are likely to use the delay 26 flowing from a stay pending appeal to dissipate their assets, hide them or 27 otherwise move them out of CP’s reach. Hence, the decision to present 28 this matter on an ex parte basis. I truly feel that time is of the essence, and 11 CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING that this matter cannot wait to be heard on the normal calendar. 17)If the Court does not feel the matter is suitable for adjudication on an ex parte basis, then CP asks that the Court set the matter for hearing as a noticed motion on shortened time. 18) Attached hereto as Exhibit 10 is a true and correct copy of the email I sent to Patrick McGarrigle giving him notice of this ex parte application. I declare under the laws of the State of California that the foregoing is true and correct. 10 11 Daniel E/Engel 12 Attorney for Construction Plumbing 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 CONSTRUCTION PLUMBING’S EX PARTE APPLICATION FOR DISCRETIONARY UNDERTAKING Exhibit To Declaration of Daniel Engel in support of Ex Parte Application for Order Requiring an Undertaking per CCP 917.9, subd. (a)(3) 12/29/22, 5:15 AM Search Results Party Search Results Name Y Date of Birth Rubin, Annette Cases (3) Cases 16CV03591 McCoy Electric Corporation vs Annette Rubin et al File Date Type Location 08/15/2016 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa 15CV02057 Annette Rubin vs Frederick A Aspenlieter et al File Date Type Location 07/21/2015 Unlimited Other Real Property (26) Santa Barbara - Anacapa 1402235 Annette Rubin vs AJ Precision Concrete Inc File Date Type Location 06/11/2012 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 1402235 Annette Rubin vs AJ Precision Concrete Inc File Date Type Location 06/11/2012 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases https://portal.sbcourts. org/CASBPORTAL/Home/WorkspaceMode?p=0 118 12/29/22, 5:15 AM Search Results 1402235 Annette Rubin vs AJ Precision Concrete Inc File Date Type Location 06/11/2012 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 1402235 Annette Rubin vs AJ Precision Concrete Inc File Date Type Location 06/11/2012 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 1413763 Homer T Hayward Lumber CO vs Lindsey Adams etc et al File Date Type Location 10/09/2012 06-Contract - Breach Cont/Warranty - Civil (Limited) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 1415472 Annette Rubin vs Leonard Unander Associates Inc File Date Type Location 01/29/2013 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 1415473 Annette Rubin vs Leonard Unander Associates Inc https://portal.sbcourts. org/CASBPORTAL/Home/WorkspaceMode?p=0 2/8 12/29/22, 5:15 AM Search Results File Date Type Location 01/29/2013 Unlimited Other Real Property (26) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 1415687 Annette Rubin vs Lindsey Adams Construction Inc File Date Type Location 02/13/2013 Unlimited Other Real Property (26) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 1438944 Annette Rubin vs Montebaro Masonry Inc File Date Type Location 11/22/2013 06-Contract - Breach Cont/Warranty - Civil (Limited) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 1439695 Monteabaro Masonry Inc vs Annette Rubin et al File Date Type Location 01/21/2014 06-Contract - Breach Cont/Warranty - Civil (Limited) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 1486984 Annette Rubin vs Thomas Drywall Inc File Date Type Location 02/11/2015 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa https://portal.sbcourts. org/CASBPORTAL/Home/WorkspaceMode?p=0 3/8 12/29/22, 5:15 AM Search Results Rubin, Annette Cases (1) Cases 15CV02057 Annette Rubin vs Frederick A Aspenlieter et al File Date Type Location 07/21/2015 Unlimited Other Real Property (26) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 16CV03591 McCoy Electric Corporation vs Annette Rubin et al File Date Type Location 08/15/2016 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 16CV03591 McCoy Electric Corporation vs Annette Rubin et al File Date Type Location 08/15/2016 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 16CV03591 McCoy Electric Corporation vs Annette Rubin et al File Date Type Location 08/15/2016 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa Rubin, Annette https://portal.sbcourts. org/CASBPORTAL/Home/WorkspaceMode?p=0 48 12/29/22, 5:15 AM Search Results Cases (1) Cases 16CV03591 McCoy Electric Corporation vs Annette Rubin et al File Date Type Location 08/15/2016 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 17CV02874 Hope Ranch Park Homes Association vs A Stuart Rubin et al File Date Type Location 06/29/2017 Unlimited Other Real Property (26) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 18CV03254 Ernesto Vancini Molina vs Annette Rubin et al File Date Type Location 06/28/2018 Unlimited Civil Appeal Labor Commission Award Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 19CV05494 Down to Earth Landscapes Inc vs Annette Rubin File Date Type Location 10/15/2019 Limited Breach of Contract/Warranty (06) - under 10,000 Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases https://portal.sbcourts. org/CASBPORTAL/Home/WorkspaceMode?p=0 5/8 12/29/22, 5:15 AM Search Results 19CV06203 Ernesto Guadarrama vs Annette Rubin et al File Date Type Location 11/21/2019 Unlimited Civil Appeal Labor Commission Award Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 20CV03206 A Stuart Rubin et al vs Preferred Bank et al File Date Type Location 10/02/2020 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 20CV03206 A Stuart Rubin et al vs Preferred Bank et al File Date Type Location 10/02/2020 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 21CV03982 A Stuart Rubin et al vs Preferred Bank File Date Type Location 10/06/2021 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 21CV03982 A Stuart Rubin et al vs Preferred Bank https://portal.sbcourts. org/CASBPORTAL/Home/WorkspaceMode?p=0 6/8 12/29/22, 5:15 AM Search Results File Date Type Location 10/06/2021 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 21CV03982 AStuart Rubin et al vs Preferred Bank File Date Type Location 10/06/2021 Unlimited Breach of Contract/Warranty (06) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 22CV00891 Ira Cornell Electric Inc vs Daniel Wallace et al File Date Type Location 03/03/2022 Unlimited Other Complaint (Not Spec) (42) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 22CV00965 Cruz & Cruz Electrical Inc vs Annette Rubin et al File Date Type Location 03/10/2022 Unlimited Construction Defect (10) Santa Barbara - Anacapa Rubin, Annette Cases (1) Cases 22CV04486 Cappello & Noel LLP vs Stuart Rubin et al File Date Type Location 11/14/2022 Unlimited Petition re:Arbitration Award (11) Santa Barbara - Anacapa https://portal.sbcourts. org/CASBPORTAL/Home/WorkspaceMode?p=0 7/8 12/29/22, 5:15 AM Search Results Rubin, Annette M Cases (1) Cases 21CV02121 Brandon Ruiz vs DLJJ & Associates LLC et al File Date Type Location 05/28/2021 Limited Other Contract (37) - 10,000 - 25,000 Santa Barbara - Anacapa Rubin, Annette M Cases (1) Cases 21CV02121 Brandon Ruiz vs DLJJ & Associates LLC et al File Date Type Location 05/28/2021 Limited Other Contract (37) - 10,000 - 25,000 Santa Barbara - Anacapa Rubin, Annette Maxine XX/XX/XXXX Cases (1) Cases JA91510 Rubin, Annette Maxine File Date Type Location 07/08/2019 Infraction (Vehicle Code) Santa Barbara - Figueroa - Traffic Rubin, Annette Cases (1) Cases 22CV04486 Cappello & Noel LLP vs Stuart Rubin et al File Date Type Location 11/14/2022 Unlimited Petition re:Arbitration Award (11) Santa Barbara - Anacapa 1 - 32 of 32 items https://portal.sbcourts. org/CASBPORTAL/Home/WorkspaceMode?p=0 8/8 Exhibit To Declaration of Daniel Engel in support of Ex Parte Application for Order Requiring an Undertaking per CCP 917.9, subd. (a)(3) NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS ing or re‘lying on opinions { 33 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citii not certified for publication or ordered published, except as specified by rule Batis is opinion as not been cettified for publication or ordered published for purposes of rule 8.1 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX ANNETTE RUBIN, 2d Civ. No. B295455 (Super. Ct. No. 15CV02057) Plaintiff, Cross-defendant (Santa Barbara County) and Appellant, COURT OF APPEAL = SECOND DIST. v FREDERICK A. FILED ASPENLEITER, Feb 04, 2020 DANIEL P. POTTER, Clerk Nhalhoul Deputy Clerk Defendant and Respondent; ASPEN CUSTOM WOODWORKING, INC., Defendant, Cross- complainant and Respondent. A homeowner sued a corporate contractor and its principal alleging breach of a construction contract. The corporate contractor cross-complained for damages for breach. A jury found against the homeowner on the complaint, and awarded damages to the contractor on the cross-complaint. The judgment on the cross-complaint states that it is in favor of both the contractor and the principal. We correct the error by removing the principal from the judgment as not a party to the cross-complaint. In all other respects, we affirm. FACTS Annette Rubin hired Aspen Custom Interior Woodworking, Inc. (Aspen) pursuant to an oral contract to furnish and install interior finish work in her home on a time and materials basis. Aspen is owned by Frederick Aspenleiter. Aspenleiter hired subcontractors to help with the work. Rubin agreed to pay Aspen weekly for the services provided at $65 per hour. For the first six months of the job, Rubin paid Aspen weekly as agreed and Aspen paid its subcontractors. Thereafter, Rubin stopped paying Aspen, claiming that she lost the invoices or that her bookkeeper needed m