JUDGMENT [128]
DAVID O. CARTER, District Judge.
Judgment is hereby entered in this matter as to the Fourth Interim Arbitral Award as follows:
NOW THEREFORE JUDGMENT IS ENTERED:
1. IT IS ORDERED AND ADJUDGED THAT: In the course of a fiduciary relationship Respondent Stead Martin committed constructive fraud against Claimant, Christopher Hellmich. Claimant proved this constructive fraud by clear and convincing evidence. Claimant is the prevailing party.
2. IT IS FURTHER ORDERED AND ADJUDGED THAT: Respondent Stead Martin's actions directed against Claimant were willful and malicious. In re Bammer, 131 F.3d 788, 791 (9th Cir. 1997).
3. IT IS FURTHER ORDERED AND ADJUDGED THAT: Respondent Stead Martin is a Mastiff alter ego and therefore all four Respondents, including Respondent Stead Martin, are jointly and severally liable with one another for all of the monetary awards issued in the Third Interim Arbitral Award, paragraphs 40 through 43 and as separately established by Claimant's instant motion for summary judgment. In re Kay, 60 B.R. 174, 177 (Bankr. C.D. Cal. 1986); see also, Rhino Linings of Poway, Inc. v. Rhino Linings USA, Inc. (Cal. Ct. App., June 19, 2002, D036619) 2002 WL 1340879 *9 (holding alter egos jointly and severally liable for contractually agreed attorneys fees and costs).
For the avoidance of doubt, those monetary awards contained in the Third Interim Arbitral Award, and as separately established by Claimant's instant motion, and now made jointly and severally liable as to Respondent Stead Martin along with the Respondent Mastiff Contracting, LLC, Respondent Martin, and Respondent Holley are:
a. As a direct and proximate result of the four Respondents' constructive fraud; the Respondents are jointly and severally liable with one another to Claimant for the loans in the principal amount of $123,000 and for pre and post judgment interest on the principal amount of the loans at the contractually agreed 9% interest rate. Third Interim Arbitral Award ¶40; see, Table 1.
b. As a direct and proximate result of the four Respondents' constructive fraud the Respondents are jointly and severally liable with one another to Claimant for his proven lost and future profits in the principal amount of $499,999, as plead in the Verified Complaint, for prejudgment interest applied to the lost and future profits in accordance with CAL. CIV. CODE §3287 and post-judgment interest in accordance with CAL. CIV. CODE §685.010. Id. ¶41; see, Table 1.
c. The four Respondents are jointly and severally liable to Claimant for attorneys' fees as provided for in the arbitration agreement. Claimant's reasonable attorneys fees are $150,000. The attorneys fees were incurred through January 29, 2015, and Claimant will not seek any other attorneys fees related to this arbitration that may have been incurred prior to January 29, 2015. Claimant is awarded post-judgment interest on this sum in accordance with CAL. CIV. CODE §685.010. Id. ¶42; see, Table 1.
d. The four Respondents are jointly and severally liable to Claimant for the expenses of the arbitration as provided for in the arbitration agreement. As of the date of the Third Interim Arbitral Award those expenses total $39,371.10. Claimant is awarded post-judgment interest on this sum in accordance with CAL. CIV. CODE §685.010. Id. ¶43; see, Table 1.
Claimant is not seeking attorneys fees or arbitration expenses for his motion for summary judgment.
4. IT IS FURTHER ORDERED AND ADJUDGED THAT: A constructive trust is awarded to Claimant and against Respondent Stead Martin as to her real, tangible and/or intangible property, including but not limited to all Mastiff Intellectual Property. The constructive trust is awarded to Claimant in the amount of $851,826.85. See, Table 1 for calculations. CAL. CIV. CODE §§ 2223 and 2224; see also, Martin v. Kehl (1983) 145 Cal.App.3d 228, 236-238.
5. IT IS FURTHER ORDERED AND ADJUDGED THAT: Pursuant to the arbitration agreement Claimant is entitled to, and is hereby awarded, against all four Respondents, all costs incurred in "enforcing, perfecting or executing" on this award or subsequent judgment. The arbitration agreement defines such costs as "include[ing] without limitation, attorneys' fees, costs and expenses incurred in the following: (i) post-judgment motions; (ii) contempt proceedings; (iii) garnishment, levy and debtor and third-party examinations; (iv) discovery, and (v) bankruptcy litigation."
IT IS SO ORDERED AND ADJUDGED.
Hellmich v. Mastiff Contracting, LLC, et al.
AAA: 01-14-0000-8830
TABLE 1
Mastiff Arbitration Monetary Award Breakdown
Principal Loan $ 123,000.00
Contractual Pre-judgment interest through January 29, 2015 at 9% $ 19,799.26
Total $ 142, 799.26
Lost Profits $ 499,999.00
Pre-judgment interest july 9, 2014-jan 29, 2015 at 7% (Cal. Civ. Code $ 3287) $ 19,657.49
Total $ 519,656.49
Arbitration Expenses $ 39,371.10
Attorneys Fees $ 150,000.00
Cumulative Total $ 851,826.85
Notes:
1. Principal loan and prejudgment interest will continue to accure contractual post-judgment interest unitl fully paid
2. Lost Profits, Arbitration Expenses and Attorneys fee will continue to accure post-judgment interest in accordance with Cal.Civ.Code $ 685.010 until fully paid
