Korchemny v. Piterman

• Decision Date: 27 August 2021
• Docket Number: A155483, A157716
• Citation: 68 Cal.App.5th 1032,284 Cal.Rptr.3d 104
• Parties: Remi KORCHEMNY, Plaintiff and Appellant, v. Dmitry PITERMAN et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

68 Cal.App.5th 1032

284 Cal.Rptr.3d 104

Remi KORCHEMNY, Plaintiff and Appellant,

v.Dmitry PITERMAN et al., Defendants and Respondents.

A155483, A157716

Court of Appeal, First District, Division 2, California.

Filed August 27, 2021

Kevin M Sullivan, San Francisco, Law Offices of Kevin M. Sullivan; Bradley Bayan, Redwood City, Law Offices of Bradley Bayan, for Plaintiff and Appellant Remi Korchemny

Jeffrey T. Makoff, Patrick T. Freeman, San Francisco, Roxanne E. Makoff, Valle Makoff LLP, for Defendants and Respondents Milanendra Piterman and The Milan's Freedom Trust

Wallace C. Doolittle, Hayward, James P. Downs, San Francisco, Law Offices of Wallace C. Doolittle, for Defendant and Cross-Appellant Dmitry Piterman

Richman, J.

This opinion primarily addresses two consolidated appeals by Remi Korchemny, the payee on two promissory notes, who sued Milanendra (Milan) Piterman, her trust, and her ex-husband Dmitry Piterman on those notes. The first appeal is from a summary judgment obtained by Milan and her trust, who demonstrated that the notes were usurious, and that the payments made on them showed they had been paid in full. The second is from an order awarding Milan and the trust over $318,000 in attorney fees.

Dmitry, who was one of the obligors on the notes, filed a cross-complaint against Milan and the trust, on which Milan and the trust obtained judgment on the pleadings against Dmitry. Dmitry has filed what he calls a "cross-appellant's brief" in support of his appeal from that judgment.

We conclude that neither of Korchemny's appeals has merit, nor does Dmitry's "cross-appeal," and we affirm both judgments and the attorney fee order.

BACKGROUND

The General Setting, the Parties, and the Participants

Milan and Dmitry Piterman were married in 1990. In December 2013, Milan filed a petition for legal separation, beginning a proceeding that respondents’ brief calls a "highly-contentious marital dissolution action," a highly contentious action that has generated a 17-page register of actions—an action as best we understand it that continues to this day.

Remi Korchemny (Korchemny), a close friend of Dmitry's, filed a lawsuit against Dmitry, Milan, and Milan's Freedom Trust (the trust) based on two promissory notes. Dmitry filed a cross-complaint against Milan and the trust. After years of extensive litigation, Milan and the trust obtained summary judgment against Korchemny based on their affirmative defense of usury. They were later awarded attorney fees. Korchemny appealed both the judgment and the attorney fee order and is the primary appellant in both appeals here. Milan and the trust are the respondents and when referred to collectively will sometimes be called respondents.

Following their summary judgment, respondents obtained judgment on the pleadings against Dmitry on his cross-complaint. Dmitry appealed, and has filed what he calls a "cross-appellant's brief."

Another party below is Svetlana Avelicheva (Avelicheva), Dmitry's mother, who also sued respondents and Dmitry.¹

And as to other "participants" below, it might be said they include the attorneys for Dmitry, Avelicheva, and Korchemny, which attorneys became the subject of discovery, an unusual occurrence to be sure, and whose conduct became relevant to the issues below, particularly the attorney fee award.

The Lawsuits

On December 15, 2015, Korchemny filed a complaint naming three defendants, Milan, the trust, and Dmitry. It alleged three causes of action: (1) breach of written contract, specifically the non-payment of two promissory notes; (2) common counts; and (3) fraudulent conveyance under Civil Code section 3439.04. Korchemny was represented by attorney Lawrence D. Murray.

On the same day, December 15, Dmitry's mother Avelicheva filed a complaint against Milan, the trust, and Dmitry. It alleged various causes of action arising out of a claimed investment she made in real property owned by defendants. Avelicheva was also represented by Mr. Murray. Within months, Murray was replaced in both cases by attorney Kevin Sullivan of Griffin & Sullivan.

In January 2016, Milan and the trust filed an answer to Korchemny's complaint, which answer included various affirmative defenses, the fourth of which was usury. They were represented by Valle Makoff, LLP.

In April, Dmitry filed his answer to the complaint, represented by the Law Offices of Wallace Doolittle, and James Downs of that office.

On April 6, Milan and the trust filed a motion to consolidate the two cases. The trial court granted the motion, consolidating the cases for all purposes, and they were assigned to the Honorable Robert McGuiness, a most experienced superior court judge.

On April 26, Dmitry filed a cross-complaint against Milan and the trust, asserting claims for indemnification and contribution.

On May 31, Milan and the trust filed their answer to Dmitry's cross-complaint. They also filed their own cross-complaint against Dmitry.

Milan and the trust filed a motion for leave to file amended answers to allege additional defenses, what might be called a pro forma motion. Korchemny and Avelicheva jointly opposed the motion. Judge McGuiness granted the motion, and on September 15, Milan and the trust filed their amended answer.

On November 22, 2017—as Korchemny describes it, "pursuant to court order"—Korchemny filed a first amended complaint. It omitted the cause of action for fraudulent conveyance, and realleged the causes of action for breach of contract and common counts. The amended complaint added Korchemny as trustee of a 2002 trust as plaintiff and real party in interest, and attached the $600,000 promissory note. One thing about that complaint pertinent here is that, as Korchemny's opening brief describes it, his "two causes of action are based upon two alleged promissory notes—one dated January 2, 2000 ... and the other December 26, 2001."

The Discovery

The discovery in the consolidated cases was extensive, much of it directed at Milan and the trust. But Milan and the trust also engaged in discovery, some of which might be termed unusual, inquiring into the conduct of the attorneys for Dmitry, Korchemny, and Avelicheva—discovery that was enlightening indeed. Specifically:

Milan served subpoenas on the attorneys seeking records as to the communications between and among them and/or Dmitry. Dmitry filed a motion for protective order to quash the subpoenas. Judge McGuiness denied the motion, allowing Milan to proceed with her subpoenas, revealing what can only be called cooperation, if not collusion, between and among them.

Later, Milan filed a motion to enforce a deposition subpoena to the former e-mail provider to Dmitry's attorney Doolittle, seeking records of communications between him and counsel for Korchemny and Avelicheva. The motion was granted, and the result of that discovery yielded evidence of what respondents’ brief describes this way: "a joint campaign of blatantly oppressive discovery conduct, including serving over 3,000+ written discovery requests to respondents, but none to Dmitry... [to which] ... respondents responded efficiently to 1,247 special interrogatories, 317 requests for production of documents, 279 requests for admissions, and four sets of form interrogatories." Not only that, the discovery revealed that Dmitry's attorney Doolittle was working for Korchemny, among other things preparing papers on his behalf. And, it would develop, Dmitry was paying all the attorneys’ bills.

The Motion for Summary Judgment

On January 16, 2018, Milan and the trust filed a motion for summary judgment on Korchemny's amended complaint. The motion was simple and straightforward, based on their affirmative defense of usury, arguing that application of California usury law to the undisputed facts demonstrated that Korchemny could not show any balance due on either alleged note because they were fully paid under the law. In short, as Dmitry's opening brief accurately describes it, the motion was based on the "4th affirmative defense," usury.

As described in detail below, the moving papers were extensive, over 250 pages of material that included detailed schedules and summaries of over 17 years of payments made to Korchemny on the notes.

On March 22, Korchemny filed his opposition to the motion, which opposition made three arguments: the motion was procedurally "defective"; the interest rate was not usurious; and the evidence supporting the motion was inadmissible. Korchemny also filed objections to evidence.

Milan and the trust filed a reply, and the motion came on for hearing on April 5, where, among other things, Judge McGuiness asked counsel for Korchemny if there was in fact "any real dispute" as to the payments made on the notes as reflected in the moving papers. Counsel replied he was "not disputing the actual numbers."

Following the hearing, Judge McGuiness ordered the parties to submit additional briefing on the evidentiary objections. Both parties filed supplemental briefs, and also responses to the supplemental briefs.

Judge McGuiness held a further hearing on August 14, and the next day filed his order granting summary judgment. It was a comprehensive seven-page, single spaced order that explained in detail the reasons for his ruling.

Judgment was entered on August 24, from which Korchemny filed an appeal.

The Motion for Judgment on the Pleadings

Days after the judgment was entered, Milan and the trust filed a motion for judgment on the pleadings as to Dmitry's cross-complaint. They argued that their summary judgment demonstrated they were not liable for either of Korchemny's claims and therefore could not be found liable for Dmitry's claims in the cross-complaint for indemnification and contribution.

Dmitry filed opposition to the motion arguing that it was not timely and that the summary judgment did not dismiss him from Korchemny's complaint nor from his cross-complaint for indemnification and contribution.

Respondents filed a reply and, following a hearing, on September 25, Judge McGuiness...