American Rag Cie v. Haralambus CA2/8 ( 2021 )

Filed 7/13/21 American Rag Cie v. Haralambus CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
AMERICAN RAG CIE, LLC, B304350
(Los Angeles County
Plaintiff and Respondent.
Super. Ct. No. BC426342)
v.
HARRY HARALAMBUS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of the County
of Los Angeles, Edward B. Moreton, Jr., Judge. Affirmed.
Harry Haralambus, in pro. per., for Defendant and
Appellant.
Russ, August & Kabat and Nathan D. Meyer for Plaintiff
and Respondent.
********
There have been numerous lawsuits, enforcement actions,
and appeals between Harry Haralambus, Laura LaRocca, and
other individuals and their affiliated entities, arising from their
business dealings.1 In this case, Ms. LaRocca assigned a
judgment against Mr. Haralambus to respondent American Rag
Cie, LLC. This appeal is from an order denying
Mr. Haralambus’s request for a protective order to prevent the
taking of a judgment debtor’s examination requested by
American Rag in its efforts to enforce that assigned judgment.
Mr. Haralambus argues the trial court abused its discretion,
arguing that American Rag owed him money from a judgment in
another case, and that pending litigation in yet another case may
have an impact on sums owed between the parties. We find
Mr. Haralambus’s inadequate briefing has waived his right to
appellate review, and there is no merit to his arguments, so we
affirm.
BACKGROUND
We will not delve too deeply into the disputes between
these parties, except as is relevant to the narrow issues presented
by this appeal.
In this case, Ms. LaRocca obtained a judgment of
$1,214,757.95 against Mr. Haralambus, plus costs and interest,
which has been affirmed on appeal. (LaRocca v. LMR Partners,
Inc., supra, B271298.)
1 See, e.g., American Rag Cie, LLC v. Haralambus (Feb. 27,
2015, B246285) [nonpub. opn.]; LaRocca v. Haralambus (June 16,
2016, B257686) [nonpub. opn.]; American Rag Cie, LLC v.
Haralambus (Aug. 15, 2017, B275231) [nonpub. opn.]; LaRocca v.
LMR Partners, Inc. (Feb. 23, 2018, B271298) [nonpub. opn.];
LaRocca v. Haralambus (July 29, 2020, B298435) [nonpub. opn.].
2
In case No. LC093192, Mr. Haralambus obtained a
judgment of $119,310.91 against Ms. LaRocca, plus costs and
interest (the offset case). (Ms. LaRocca prevailed in that action,
but following a partial reversal on appeal, she was required to
return $119,310.91 she had recovered enforcing the judgment
against Mr. Haralambus while the appeal was pending.) (See
LaRocca v. Haralambus, supra, B257686.)
Ms. LaRocca and Mr. Haralambus entered into a
stipulation regarding the payment of these two judgments. The
stipulation provided Mr. Haralambus with an incentive to
quickly pay the judgment against him. If he paid $1 million with
$500,000 due at the signing of the stipulation, and the remaining
$500,000 due within 120 days of signing, then Ms. LaRocca would
file a satisfaction of judgment and release any liens securing the
judgment. Mr. Haralambus also agreed to file a satisfaction of
the judgment against Ms. LaRocca and release any liens. If full
payment was not received in accordance with the stipulation,
then the stipulation would be rendered void.
American Rag owed Mr. Haralambus money under a
judgment in yet another case, BC446588 (the royalty case). In
that case, Mr. Haralambus obtained declaratory relief
interpreting a contract between the parties, finding that
American Rag was to pay Mr. Haralambus certain royalties going
forward, and a money judgment of $279,850.42 for past royalties
due under the parties’ agreement. American Rag appealed and
posted a bond, but did not prevail on appeal. (American Rag Cie,
LLC v. Haralambus, supra, B246285.) Following remittitur, the
surety on the appellate bond paid the entirety of the money
judgment in the royalty case, plus interest, to Mr. Haralambus.
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But Mr. Haralambus only entered a partial satisfaction of
judgment for the money portion of the judgment in the royalty
case. Apparently, the parties disputed their continuing
obligations under the declaratory relief portion of the judgment,
and American Rag had not paid Mr. Haralambus postjudgment
royalties. American Rag and the surety moved to exonerate the
bond on the grounds that “the money [portion of the] judgment
was fully satisfied,” which was granted by the court.
In case No. 18STCV05291 (the settlement enforcement
case), Mr. Haralambus sued Ms. LaRocca, American Rag, and
others, seeking to enforce the stipulation with Ms. LaRocca, and
seeking declaratory relief and damages from American Rag.
According to the complaint, Ms. LaRocca breached the stipulation
because she placed a lien on Mr. Haralambus’s assets, which
prevented him from paying her in accordance with the
stipulation. Moreover, American Rag refused to pay
Mr. Haralambus amounts owing under the declaratory relief
portion of the judgment in the royalty case.
In yet another case, BC605627, which is apparently still
pending in the superior court, Mr. Haralambus sued American
Rag, and other individuals and entities, claiming breach of
contract, among other claims (the breach of contract case).
Mr. Haralambus alleged that the individual defendants were
attempting to oust him from his interest in American Rag (in
which he has a partnership interest) by decreasing its net income
and conversion for failure to pay certain dividends to
Mr. Haralambus.
While the settlement enforcement case was pending,
Ms. LaRocca successfully sought to offset the judgment against
her from her judgment against Mr. Haralambus. The
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postjudgment offset order was affirmed on appeal. (LaRocca v.
Haralambus, supra, B298435.)
Ms. LaRocca then assigned the judgment to respondent,
American Rag. At the time of the assignment, the judgment was
worth approximately $1.45 million, after the offset and costs and
interest. American Rag sought an order for Mr. Haralambus to
appear for a judgment debtor examination in its efforts to enforce
the assigned judgment.
Mr. Haralambus filed the motion for a protective order
which is at issue in this appeal, arguing that money owed to him
by American Rag under the declaratory relief portion of the
judgment in the royalty case, as well as sums allegedly owed him
in other litigation, would satisfy the judgment American Rag
sought to enforce by way of the debtor’s examination, rendering
the examination moot.
American Rag opposed the motion, arguing that
Mr. Haralambus had not adduced evidence that he was owed
damages likely to exceed the judgment American Rag was
seeking to enforce. According to the opposition, the then value of
American Rag’s assigned judgment was approximately
$1.3 million. (At the time of the motion, the judgment had been
partially satisfied.)
The parties agreed the motion would be considered at a
nonappearance case review hearing. At that hearing, where no
parties were present, the court considered the motion in
chambers, and took it under submission. The trial court later
issued its ruling denying the motion “for the reasons set forth in
the opposition papers.” Mr. Haralambus timely appealed. While
his appeal was pending, he voluntarily dismissed the pending
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settlement enforcement action against Ms. LaRocca and
American Rag.
DISCUSSION
Mr. Haralambus argues the trial court abused its
discretion when it denied his motion for a protective order. He
argues “[t]he trial court failed to properly review the relevant
facts surrounding the Motion. There was no oral argument, no
evidentiary hearing on the facts, and no reasoning provided by
the trial court on how it had adjudged the facts and made its
decision.”
American Rag contends Mr. Haralambus has not
provided a fair accounting of the facts below, and therefore has
waived appellate review of the trial court’s order. We agree.
The parties agreed the motion would be decided without a
hearing. The court denied the motion based on the evidence
and arguments submitted by American Rag in opposition to
the motion. Mr. Haralambus did not discuss at all American
Rag’s opposition to his motion for a protective order, on which
the trial court rested its decision to deny the motion.
Mr. Haralambus provided a one-sided recitation of facts that
failed to adequately discuss the underlying proceedings, and
only discussed the evidence (or in some instances, mere
allegations) that were favorable to him. Therefore, he has
waived appellate review. (Cal. Rules of Court,
rule 8.204(a)(2)(C) [an appellant must discuss all significant
facts in its brief]; Foreman & Clark Corp. v. Fallon (1971)
3 Cal.3d 875, 881; County of Solano v. Vallejo Redevelopment
Agency (1999) 75 Cal.App.4th 1262, 1274.)
Mr. Haralambus also discussed additional facts in his
reply brief, as well as additional grounds for reversal not
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raised in his opening brief. We will not consider matters
raised for the first time in a reply brief. (REO Broadcasting
Consultants v. Martin (1999) 69 Cal.App.4th 489, 500;
Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.)
In any event, the appeal fails on its merits. The purpose
of a judgment debtor examination is to “furnish information to
aid in enforcement of the money judgment.” (Code Civ. Proc.,
§ 708.110, subd. (a).) “In any proceeding under this article, the
court may, on motion of the person to be examined or on its
own motion, make such protective orders as justice may
require.” (§ 708.200.) We review an order denying a request
for a protective order for abuse of discretion. (People ex rel.
Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1552 [discovery
orders are reviewed for abuse of discretion].)
“The mere fact that a judgment debtor asserts a claim
against the creditor . . . does not of itself mean that he is
entitled to enjoin collection of the judgment, and the trial court
has broad discretion in determining whether to grant the stay
or enjoin collection of the judgment. . . . [¶] In determining
whether to enjoin collection of the judgment pending decision
of the validity of the disputed claim, the court should consider
the likelihood that the judgment debtor will recover upon his
claim, the probability and comparative amount of recovery,
and the ability of the judgment creditor to respond should a
judgment be rendered against him in the action on the
disputed claim.” (Erlich v. Superior Court of Los Angeles
County (1965) 63 Cal.2d 551, 556, citation omitted.)
The record makes clear that any sums owed by American
Rag arising from the declaratory relief judgment in the royalty
case remain in dispute and have not been reduced to a
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monetary judgment that might offset the final judgment that
American Rag seeks to enforce. Mr. Haralambus has not
demonstrated any plausible reason why the pending breach of
contract case provides a basis for a protective order to prevent
American Rag from conducting a judgment debtor exam.
DISPOSITION
The order is affirmed. Respondent is awarded its costs on
appeal.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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