JUDGMENT entered in the office of the County Clerk on May 31, 2023 May 31, 2023 (2024)

Case

Mountain Side Funding v. Olma Iv Inv D/B/A Olma Food, Lev Mashkovich

Aug 16, 2024 |Other Matters - Contract - Other |Other Matters - Contract - Other |522126/2024

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Aug 21, 2024 |Other Matters - Contract - Other |Other Matters - Contract - Other |522504/2024

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Juniper Capital Funding, Llc v. Lcm Holdings Enterprise Inc /Dba Auto Transport Groupe/Lcm Holdings Enterprise, Lcm Investments Llc, Luis Carlos Molina

Aug 21, 2024 |Commercial - Contract |Commercial - Contract |522564/2024

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Elixir Capital, Llc v. W. Lewis Construction Llc D/B/A W. Lewis Construction, William W Lewis Jr

Aug 21, 2024 |Commercial - Contract |Commercial - Contract |522557/2024

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Velocity Capital Group Llc v. Sit And Sleep, Llc d/b/a Mattresses and Furniture, Cody Neal Cosgrave

Aug 22, 2024 |Commercial - Contract |Commercial - Contract |522754/2024

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Coolidge Capital Llc v. Ap Institute Of America Llc, Ap Tax And Multiservices Llc, Alba Yissel Perez Belliard Aka Alba Yissel Belliard Perez

Dec 13, 2022 |Anne Swern |Commercial - Contract |Commercial - Contract |536228/2022

Case

Mar 23, 2024 |Aaron Maslow |Other Matters - Contract - Other |Other Matters - Contract - Other |508390/2024

Case

Itria Ventures Llc v. Gustavo Francisco Rosas Dba Absolute-Machining, Gustavo Francisco Rosas

Aug 19, 2024 |Commercial - Contract |Commercial - Contract |522330/2024

Case

Llsv v. Educ8 Dba Okin Educate, Christopher Thomas Nebel

Aug 19, 2024 |Commercial - Contract |Commercial - Contract |522237/2024

Ruling

PW Fund B, LP, a California limited partnership vs Saadia Group LLC, a New York limited liability company

Aug 22, 2024 |STK-CV-UBC-2023-0002483

Please use Case Management Search for Tenative Ruling(s).

Ruling

Cen-Cal Refrigeration, Inc vs. Maple Venture, LLC. / LEAD

Aug 21, 2024 |20CECG01342

Re: Cen-Cal Refrigeration, Inc. v. Maple Venture, LLC et al. Superior Court Case No. 20CECG01342Hearing Date: August 21, 2024 (Dept. 403)Motion: By Defendant Maple Venture, LLC, for Judgment on the PleadingsTentative Ruling: To deny. (Code Civ. Proc., § 438.) Within 10 days of service of the order by theclerk, Maple Venture, LLC, shall file its answer to the Fourth Amended Complaint.Explanation: At issue in this motion is the fifth cause of action of plaintiffs’ Fourth AmendedComplaint (“4AC”). In this cause of action plaintiff Cen-Cal Refrigeration, Inc. (“Cen-Cal”), a subcontractor on a construction project, seeks to recover damages by way ofquantum meruit from defendant property owner Maple Venture, LLC (“Maple”). Cen-Cal had no direct contractual relationship with Maple. Maple’s contract was withgeneral contractor Engineered Structures, Inc. (“ESI”), who subcontracted the HVACportion of the construction to plaintiff Cen-Cal. Maple contends that as a subcontractor, Cen-Cal's legal remedies are limited toexercising its mechanic's lien rights against the property (which it abandoned with thesecond amended complaint) or pursuing a claim against the general contractor, ESI,with whom it stood in contractual privity. In support of its contention that quantum meruit is unavailable to a subcontractor,Maple relies primarily on two decisions: Truestone, Inc. v. Simi West Industrial Park II (1984)163 Cal.App.3d 715 and Rogers v. Whitson (1964) 228 Cal.App.2d 662. While this is thegeneral rule, case law cited by Maple shows that it can be a fact-based inquiry. Forexample, in R.D. Reeder Lathing Co. v. Allen (1967) 66 Cal.2d 373, 376, the court stated,“Although the complaint states that plaintiff performed its work at the request ofdefendant, it appears from plaintiff’s own affidavits that the request came, not fromdefendant directly, but from his prime contractor.” Maple does not address in its motion allegations of the 4AC that (a) Maple andESI were agents, joint venturers and employees of one another; (b) each defendantratified or authorized the acts of their agents; (c) defendants conspired with one anotherand planned to defraud plaintiff in committing the alleged acts; and defendants(including Maple) requested that Cen-Cal perform its construction services forimprovement of the property, and Cen-Cal performed as requested by defendants. (See4AC ¶¶ 9-13, 48, 49.) Though Maple specifically highlighted these allegations in theopposition, Cen-Cal ignored them in the reply. To recover in quantum meruit, the “plaintiff must establish both that he or she was acting pursuant to either an express or implied request for such services from the defendant and that the services rendered were intended to and did benefit the defendant"; further, the defendant must have “ ‘retained [the] benefit with full appreciation of the facts....’ “(Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 248.) The 4AC sufficientlyalleges facts amounting to an express or implied request by Maple for the servicesrendered by Cen-Cal, to the benefit of Maple, and for which Cen-Cal was not paid. It may be that Cen-Cal overstates the actual facts in its pleading in order to avoidapplication of the general rule that privity of contract is required, but in ruling on a motionfor judgment on the pleadings, the court accepts as true the allegations of the complaintunder attack and gives them a liberal construction. (Code Civ. Proc., § 438, subd. (d);Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516; Cloud v. NorthropGrumman Corp. (1998) 67 Cal.App.4th 995, 999.) The question of plaintiff's ability to proveunlikely allegations, or possible difficulties in making such proof, is of no concern in rulingon a demurrer or motion for judgment on the pleadings. (Committee on Children'sTelevision, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.) The court finds theallegations sufficient at the pleading stage to state a cause of action for quantum meruitagainst Maple. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: JS on 8/16/2024 . (Judge’s initials) (Date)

Ruling

Paladin Holdings vs Culture Cannabis

Aug 26, 2024 |24CV-00233

24CV-00233 Paladin Holdings v. Culture CannabisCase Management ConferenceAppearance required. Remote appearances are permitted. Parties who wish to appearremotely must contact the clerk of the court at (209) 725-4111 to arrange for a remoteappearance. Complaint filed January 12, 2024, and proof of service filed March 13, 2024,yet no response or default taken as of this date. Counsel for Plaintiff indicated at the July29, 2024, Case Management Conference that a settlement was being circulated forsignature to resolve the case. Appear to discuss status of the case.

Ruling

E-COMMERCE LIGHTING INC vs E-COMMERCE TRADE LLC

Aug 22, 2024 |PSC1701019

Motion for Summary Judgment or in theE-COMMERCE LIGHTING INC vs Alternative Summary Adjudication onPSC1701019E-COMMERCE TRADE LLC Complaint of WHITE FIELD EQUITIES-FUND ITentative Ruling: Denied.Responding party to provide notice pursuant to CCP 1019.5.Plaintiff, E-Commerce Lighting, Inc. (“ECL”), alleges that on 7/31/15, as part of the purchase price ofECL’s assets, it and Defendant, E-Commerce Trade, LLC (“ECT”) entered into a Promissory Notewherein ECT agreed to pay ECL the principal amount of $2,500,000 at 7% interest annually, with thefirst monthly payment of $29,661.98 due on 9/15/15, and continuing on the 15th of each successivemonth for ten years when all principal, and interest would be due.In December of 2016, ECL notified ECT in writing that it was in default under the ECL Note. Thefailure to cure the default triggered increased interest to 10% on the unpaid principal balance, and allsums became immediately due and payable. As of 3/15/17, the principal and interest due and owningon the ECL Note is $2,339,825.27. ECL filed its Complaint on 2/24/17 against ECT alleging a singlecause of action for breach of promissory note.Banc of California (“Banc”) sought and received permission to file a Complaint of Intervention. Theoperative pleading is the First Amended Complaint, which is asserted against ECL, Frank Halcovich(“Halcovich”), (ECL’s CEO), Wendy Hertz (“Hertz”) (ECL’s CFO and Halcovich’s wife), ECT, and BrianSawyer (a personal guarantee of a loan entered into by Banc and ECT). It asserts that it providedECT with a loan to purchase ECL’s assets and ECT has breached said agreement, which wasguaranteed by Brian Sawyer. It also alleges that ECL made false representations to ECT andfraudulently concealed facts regarding the assets it was selling.The operative pleading asserts the following claims: (1) fraudulent concealment, (2) negligentmisrepresentation, (3) breach of subordination agreement, (4) breach of contracts/loan documents,(5) breach of guarantees, and (6) unfair competition.A Complaint was filed by White Field Equities-Fund I (“WFE”) on 12/23/19 (Case No. PSC 1909378)against ECL, Halcovich and Hertz, which was consolidated with the breach of promissory note actiondescribed above and the complaint in intervention.The Complaint alleges two causes of action: (1) fraud/fraudulent inducement/fraudulent concealment;and, (2) negligent misrepresentation. The WFE Complaint alleges that under an Asset PurchaseAgreement (“APA”), ECT agreed to pay $11.5 million for the purchase of ECL including assets, andgoodwill, of which $9 million was to be in cash. The remaining $2.5 million was paid using aPromissory Note (ECL Note described above). ECT borrowed $2.7 million of the cash paymentportion of the purchase price of ECL from WFE and executed a promissory note on 7/16/15 for thatamount.After the purchase, and without knowledge of certain concealed facts and misrepresentations aboutthe condition of ECL, WFE loaned an addition $1,939,603 to ECT for operating shortfalls caused bythe concealed facts and misrepresentations. For instance, WFE alleges that ECL, Halovich, andHertz, failed to disclose that numerous vendors had suspended or terminated their relationships dueto ECL selling vendors’ products on the internet below Internet Minimum Advertised Price (IMAP) inviolation of their distributor agreements. In any event, ECT executed a second promissory note for theadditional amount on 4/12/19. ECL agreed that the ECL Note ($2.5 million) and all payments due fromECT under the ECL Note were subordinate to the amount that ECT borrowed from WFE.ECL, Halcovich, and Hertz bring this motion for summary judgment in their own favor on WFE’scomplaint. They argue that WFE’s claims are barred by the applicable statute of limitations.In opposition, WFE contends that its claims are not barred by the statute of limitations because it didnot sustain damages until after the date used by ELC, Halcovich, and Hertz to calculate the statute oflimitations. It also asserts that equity mandates that the statute of limitations be tolled during thependency of WFE’s Motion to Intervene in the ECL Action, which would extend the statute oflimitations period.In reply, the Moving Parties argue that WFE is trying to change the allegations of its pleading, which isimproper. It argues that a fraud cause of action requires harm not damages for the statute oflimitations to start running and the running of the statute or limitations is not postponed by the fact thatthe actual or substantial damages do not occur until a later date. They assert that the statute oflimitations should not be equitably tolled because there was a delay in filing the Motion to Interveneand then filing the Complaint when the Motion to Intervene was denied. They argue that the did nothave notice of the claims until WFE’s lawsuit was filed.Motion for Summary JudgmentA motion for summary judgment attacks the entire pleading. To grant a motion for summary judgment,the moving party must be entitled to judgment in its favor. (CCP § 437c(c).) A defendant meets herburden in a motion for summary judgment by doing one of the following: (1) presenting affirmativeevidence negating an essential element of plaintiff’s cause of action; (2) showing a complete defense;or (3) showing that plaintiff does not possess and cannot reasonably obtain needed evidence. CCP§437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. When a defendant has met herburden, it then shifts to plaintiff to show that a triable issue of fact exists.Procedural History on MSJIt should be noted that this is the second motion for summary judgment brought by Moving Parties onthis Complaint. This issue is not raised or discussed by any of the parties. This motion is brought on acompletely different theory than the original motion. As such, it does not appear to be areconsideration of the prior motion. The prior motion was for summary judgment. As such, this motionalso does not appear to violate CCP § 437c(f)(2), which applies when a motion for summaryadjudication is denied.Request for Judicial Notice (RJN)Moving parties request 10 exhibits be judicially noticed. Granted as to Exhibit 1 (Complaint)Responding party request 12 exhibits be judicially noticed. Granted as to Exhibits 2, 4, 8, and 9.Statute of LimitationsIn the instant motion, moving Parties argue that WFE’s Complaint, which sets forth claims for fraudand negligent misrepresentation, fail because they are barred by the applicable statute of limitations.Negligent misrepresentation is a form of fraud. (Fox v. Pollack (1986) 181 Cal.App.3d 954, 962.) Athree-year statute of limitations applies to a fraud cause of action. (CCP § 338(d).) The general rule isthat a cause of action accrues on the date of injury. (Vaca v. Wachovia Mortgage Corp. (2011) 198Cal.App.4th 737, 743.) A fraud cause of action “is not deemed to have accrued until the discovery, bythe aggrieved party, of the facts constituting the fraud or mistake.” (CCP § 338(d).) “The courtsinterpret discovery in this context to mean not whether the plaintiff became aware of the specificwrong alleged, but when the plaintiff suspected or should have suspected that an injury was causedby wrongdoing.” (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1374.)As our Supreme Court has long held, under Code of Ciivl Procedure section 338, subdivision(d), a ‘plaintiff must affirmatively excuse his [or her] failure to discover the fraud within threeyears after it took place, by establishing facts showing that he [or she] was not negligent infailing to make the discovery sooner or that he [or she] had no actual or presumptiveknowledge of fatcs sufficient to put him [or her] on inquiry.(Krolikowski v. San Diego City Employees’ Retirement System (2018) 24 Cal.App.5th 537, 561-562.)Based on the evidence provided with the moving papers, Mark Sawyer was the president of ECT(Declaration of Mark Sawyer in Opposition to Application for Writ of Attachment, ¶ 1) an investor inWFE, managing partner of WFE (Mark Sawyer’s Deposition, 68:10-24) and the managing partner ofWFE’s managing agent - White Field Capital Partners, LLC (“WFCP”) (Declaration of Mark Sawyer inSupport of WFE’s Opposition to E-Commerce Lighting, Frank Halcovich, and Wendy Hertz’ Motion forSummary Judgment, ¶¶ 8 and 11; Deposition of Brandon Smith, 100:1-13.) Mr. Sawyer was aware byNovember 2016 that some of the outstanding receivables that was part of the sale to ECT wereuncollectable, Home Depot was asserting a large deduction on the amounts it owed due to a largenumber of returns, and there were a number of vendor relationships that had been recently terminatedor threatened to be terminated due to violations in the vendor agreements, which were allegedmisrepresentations made during ECT’s purchase of ECL’s assets. (Declaration of Mark Swayer inopposition to Application for Writ of Attachment, ¶¶ 9-15.) These are the same grounds of fraudasserted in the Complaint.Notice to an officer or authorized agent of a corporation is notice to the corporation. (Moore v. Phillips(1959) 176 Cal.App.2d 702, 709.) An entity can only have knowledge through its officers and agents.(Snyder v. Security-First Nat’l Bank (1939) 31 Cal.App.2d 660, 664.) “A principal is deemed to havenotice of whatever its agent has notice of and should reasonably communicate to the principal.”(Baxter v. State Teachers’ Retirement System (2017) 18 Cal.App.5th 340. 366.) A principal is boundby the knowledge of its agent that it received while agent acting within the scope of its authority. (Ibid.)“Included among the types of information that may be imputed from agent to principal are facts usedto determine the date of accrual of a statute of limitations.” (Id. at 367.) Due to Mr. Sawyer’s role in allof these businesses, it appears that WFE had notice of these facts in November 2016.WFE does not argue that Sawyer was not aware of this information. It does not dispute that Sawyerheld the positions identified by Moving Parties. Instead, it argues that a letter sent by counsel in 2016addressing the claims of fraud was sent by ECT on ECT’s behalf and not on WFE or WCFP’s behalf.While this may be true, WFE points to no authority that this has any impact on the facts known bySawyer. They point to no authority that Sawyer’s knowledge is not imputed on it. As such, thisargument by WFE appears to have no merit.WFE also contends that the statute of limitations could not have accrued in November 2016 becauseit did not incur damages until sometime later. Based on the allegations in the Complaint, WFE wouldnot have made the loans to ECT, had it known the false representations and concealed facts and thatsaid misrepresentations/concealments harmed WFE. (Complaint, ¶¶ 27, 29, 36, and 37.) Based onthese allegations, WFE incurred damages as soon as they loaned ECT the initial funds because theywould not have done so except for the fraud. In Vera v. REL-BC, LLC (2021) 66 Cal.App.5th 57, theplaintiff alleged that the seller of property made false representations and fraudulently concealeddefects to real property. The plaintiff argued that the fraud cause of action did not accrue until she wasinjured by the defects in the home. (Id. at 72.) However, the Court found that injury occurred at thetime of sell because she paid more for the property than it was worth. (Id.) The Court stated “[t]hemere fact that some damages continued to occur or be discovered that might have increased theamount of damages to which she was entitled did not prevent the accrual of [her] claim.” (Id.) Thismatter is similar to Vera. Like in Vera, WFE provided more funds than it would have, had they knownabout the defect at the time the transaction occurred. As such, it appears that injury occurred in thismatter when the initial loan payment was made. It appears that the claims are barred by theapplicable statute of limitations.WFE argues that this matter is similar to Cleveland v. Internet Specialist West, Inc. (2009) 171Cal.App.4th 24. It argues that under Cleveland, where installment payments are at issue, fraud doesnot accrue until a payment is missed. First, it should be noted, there is no installment contractbetween WFE and the Moving Parties. This lawsuit asserts fraud not against the entity that WFE lentmoney to but against the seller of assets to the entity it lent money to. Second, Cleveland is notapplicable because the fraud at issue in Cleveland did not occur until after the investment agreementwas entered into and when funds were not paid out. (Id. at 32.) As such, Cleveland does not appearapplicable. WFE also relies on City of Vista v. Robert Thomas Sec. (2000) 84 Cal.App.4th 882, 886-887. This case also does not appear applicable because it was based on fraud pertaining to thepayout of the security investment, which would not have been known until the last interest paymentwas made to the investors. (Id.) This fact pattern is not like the issue in this lawsuit. As such, thesecases are not persuasive.WFE argues that this motion should also not be granted due to equitable tolling. Equitable tolling is ajudge made doctrine that extends or suspends the statute of limitations for fairness and to ensurefundamental practicality. (Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370.) Equitable tolling ofthe statute of limitations has been recognized in California only where (1) the plaintiff is pursuing analternative remedy in another forum; (2) under narrow circ*mstances, while plaintiff is pursuing thesame remedy in the same forum; (3) where a defendant fraudulently conceals the cause of action;and (4) in certain actions against an insurer. (Reid v. City of San Diego (2018) 24 Cal.App.5th 343,360.) It applies where a party has several legal remedies and in good faith reasonably pursues one.(Saint Francis Memorial Hospital v. State Dept. of Public Health (2020) 9 Cal.5th 710, 725.) Equitabletolling can only be applied when the following elements are present: (1) timely notice to the otherparty, (2) lack of prejudice, and (3) reasonable and good faith conduct by plaintiff. (Id. at 724.) Theseelements are designed to balance the injustices to the plaintiff that will occur if their claims are barredagainst the effect upon the important policy policies expressed by the statute of limitations. (Ibid.)WFE argues that the statute of limitations should be tolled during the time period that it filed and theCourt heard its motion to intervene in ECL’s lawsuit. It argues that the Motion to Intervene gave theMoving Parties timely notice of its claims. It asserts that there has been no prejudice considering thatequitable tolling only tolls the statute of limitations 62 days. It contends that its actions werereasonable and made in good faith. Moving Parties contend that equitable tolling should not beapplied because WFE does not indicate why it did not file a Motion to Intervene sooner and why itwaited until three months after the Motion to Intervene was denied before filing its Complaint. Whileequitable tolling is rarely applied and it is probably unlikely that it will be found ultimately applicable,there appears to be a triable issue of material fact as to this issue.The first element of equitable tolling is timely notice. “When considering whether a plaintiff providedtimely notice, courts focus on whether the party’s action caused the defendant to be ‘fully notifiedwithin the [statute of limitations] of plaintiff’s claims and their intent to litigate.’” (Saint FrancisMemorial Hospital, supra, 9 Cal.5th at 726.) Moving Parties argue that a motion to intervene cannotprovide said notice because it is not the actual filing of a complaint or claim. However, in Saint FrancisMemorial Hospital, the Court found that filing a motion for reconsideration met the first requirement ofequitable tolling because it could possibly give the party the legal relief they sought. (Id. at 726-727.)As such, the legal remedy does not appear to be limited to the filing of a pleading or claim and thisargument is not persuasive. The Motion to intervene attached a Complaint in Intervention, whichincludes the same causes of action set forth in WFE’s current complaint. This motion was filed on7/27/19, months before the statute of limitations ran on WFE’s claims. As such, it appears that MovingParties were provided with notice of WFE’s claims.The second issue for equitable tolling is whether there has been prejudice to the defendant. The corefocus of the second element is “whether application of equitable tolling would prevent the defendantfrom defending a claim on the merits.” (Saint Francis Memorial Hospital, supra, 9 Cal.5th at 728.)WFE points to the fact that its complaint was filed less than two months after the statute of limitationsran on this matter. This is a limited amount of time after the statute of limitations ran and appears toindicate lack of prejudice. Moving Parties have failed to identify any prejudice, except for the fact thatthey must defend this lawsuit. Due to this, it appears that there is evidence to support the secondelement of equitable tolling.The third element requires that the actions by the plaintiff be reasonable and taken in good faith. MarkSawyer has provided a declaration indicating that WFE’s decision to file the Motion to Intervene wasdone because they felt it was the easiest way to assert their claims and believed their request wouldbe granted based on the Court’s granting of Banc’s similar motion to intervene. (Declaration of MarkSawyer, ¶¶ 27-31). Based on this, it appears that WFE has provided evidence to support thesubjective test of good faith. “When it comes to reasonableness, the ‘ultimate test’ is ‘objective.’ Ananalysis of reasonableness focuses not on a party’s intentions or the motives behind a party’s actions,but instead on whether that party’s actions were fair, proper, and sensible in light of thecirc*mstances.” (Saint Francis Memorial Hospital, supra, 9 Cal.5th at 729.)The Complaint in Intervention that the Court allowed Banc to file is similar to WFE’s complaint. Itasserts fraud, negligent misrepresentation and other claims based on false representations made byECL via the APA with ECT. As such, it does not appear unreasonable for WFE to believe that theirsimilar complaint would be granted. As for the timing, it does not appear improper for WFE to waituntil 7/26/19 to file its motion. This is only three months after Banc’s motion was granted, which is notan excessive amount of time and months before the statute of limitations ran. Moving Parties arguethat the three months between the denial of the Motion to intervene and the filing of the Complaint inthis lawsuit was not reasonable or in good faith. While WFE did have time between this period to filetheir Complaint but did not take advantage of this, the purpose of equitable tolling is to pause thestatute of limitations during the time period that alternative relief is sought. When applying this pause,the Complaint was filed during the appropriate statute of limitations period. Moving Defendantsprovide no authority that this type of conduct makes WFE’s conduct unreasonable. As such, thereappears to be a triable issue of material fact as to equitable tolling. Due to this, the motion forsummary judgment must be denied.

Ruling

JONATHAN BOTACH VS ATERET DIVEROLI

Aug 26, 2024 |22STCV16593

Case Number: 22STCV16593 Hearing Date: August 26, 2024 Dept: 52 Tentative Ruling: Defendant Ateret DiVerolis Motion for Protective Order Limiting Discovery Defendant Ateret DiVeroli moves for a protective order that she is not required to answer plaintiff Jonathan Botachs requests for admission, set two. When requests for admission have been made, the responding party may promptly move for a protective order. (CCP § 2033.080(a).) The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. (Id., subd. (b).) The court may order [t]hat the set of admission requests, or particular requests in the set, need not be answered at all. (Id., subd. (b)(1).) DiVeroli shows good cause for a protective order. Plaintiffs requests for admission of the genuineness of documents, set two, begins, You are requested to admit within 30 days the genuineness of each of the enclosed documents, numbered 19 462, and for your convenience divided into 11 categories. (Apanius Decl., Ex. 1.) It then gives four instructions. The first purported instruction describes why plaintiff selected, out of over 500,000 documents the 432 pages of documents attached. (Ibid.) Second, plaintiff states, If you claim that you dont know any of these documents, you are requested & to do due diligence and consult with these people, followed by a list of 14 people. (Ibid.) The third instruction states, If your response to any document is not an unqualified admission that it is genuine, you must state all facts upon which you base your response, name all PERSONS with whom you have consulted, and specify THEIR reaction to these documents. (Ibid.) Finally, the fourth purported instruction is a warning that Plaintiff will not hesitate to file a motion to compel full and honest responses. (Ibid.) The 11 categories of documents are labeled Exhibits A through K. (Apanius Decl., Ex. 1.) In addition to identifying a letter for each category, plaintiff listed people or law firms. (Ibid.) Each category includes many separate documents. For example. Exhibit A (pages 20 to 39) includes 13 different documents. A protective order is appropriate to protect DiVeroli from unwarranted annoyance, oppression, and undue burden. Code of Civil Procedure 2033.060(c) provides, Each request for admission in a set shall be separately set forth and identified by letter or number. Plaintiff designated these requests as set two but did not separately number any of them. Dividing the documents into 11 categories, each including many documents, makes it impossible to respond without making DiVeroli do the work of properly separating the documents or separately answering as to every one of the over 400 pages. Plaintiff must do the work of asking separately numbered requests for each distinct document. Shifting that work to DiVeroli causes unwarranted annoyance, oppression, and undue burden. Plaintiffs instructions also violate the provisions governing requests for admission. Code of Civil Procedure section 2033.060(d) provides, Each request for admission shall be full and complete in and of itself. No preface or instruction shall be included with a set of admission requests, except for those included on Judicial Council form DISC-020. Moreover, though a responding party has a duty to make a reasonable investigation of the facts before answering items which do not fall within his [or her] personal knowledge (Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 752), the Civil Discovery Act does not require him or her to consult with people selected by the requesting party. Nor does it require the responding party to give a sworn statement detailing the investigation done, as plaintiffs third instruction demands. Sanctions DiVeroli moves for $10,110 in sanctions against plaintiff. Plaintiff engaged in two misuses of the discovery process subject to monetary sanctions. First, he used a discovery method in a manner that does not comply with its specified procedures. (CCP § 2023.010(b).) Second, he employed a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (Id., subd. (c).) Plaintiff did not act with substantial justification. Sanctions are just under the circ*mstances. DiVeroli did not, however, reasonably incur $10,110 in expenses making this motion. DiVerolis counsel claims 13.9 hours preparing the motion and 3 hours incurred reviewing the opposition and preparing for and attending the hearing. (Apanius Decl., ¶ 5.) Working 13.9 hours on this motion was excessive. Plaintiff did not file an opposition. The motion was relatively simple. The defects in plaintiffs requests for admission were glaring. The court finds DiVerolis counsel reasonably incurred 6.0 hours of attorney fees at $600 per hour, plus the $60 filing fee, for a total of $3,660 in expenses. Disposition Defendant Ateret DiVerolis motion for protective order limiting discovery is granted. The court hereby issues a protective order that DiVeroli need not answer plaintiffs requests for admission, set two, at all. Plaintiff Jonathan Botach is ordered to pay defendant Ateret DiVeroli $3,660 in sanctions within 30 days.

Ruling

DYNATRANS, INC, A CALIFORNIA CORPORATION, ET AL. VS YUNING SU, AN INDIVIDUAL, ET AL.

Aug 22, 2024 |24PSCV01221

Case Number: 24PSCV01221 Hearing Date: August 22, 2024 Dept: G Defendants Yuning Su and Plus & Beyond Express, LLCs Demurrer to Plaintiffs Complaint Respondent: Plaintiffs Dynatrans, Inc, and Shaoyue Li TENTATIVE RULING Defendants Yuning Su and Plus & Beyond Express, LLCs Demurrer to Plaintiffs Complaint is CONTINUED to a date to be determined at the hearing in Department G (Pomona). Defendants counsel is also ordered to meet and confer with Plaintiffs counsel regarding the Demurrer and to file a supplemental declaration describing such meet and confer efforts at least nine (9) court days before the next scheduled hearing on the Demurrer. BACKGROUND This is an action for fraud and conversion. In 2017, Plaintiff Dynatrans, Inc, (Dynatrans) hired Defendant Yuning Su. From 2022 to 2023, Dynatrans alleges Su mishandled and embezzled Dynatranss funds. After Su quit in November 2023, Su allegedly attempted to steal Dynatranss business for Defendant Plus & Beyond Express, LLC (P&B). On April 16, 2024, Dynatrans and Shaoyue Li filed a complaint against Su, P&B, and Does 1-100, alleging the following causes of action: (1) actual interference with contractual relations, (2) intentional interference with prospective economic advantage, (3) negligent interference with prospective economic relations, (4) conversion, (5) Penal Code section 496, (6) breach of loyalty pursuant to Labor Code sections 2860 and 2863, (7) intentional misrepresentation, (8) concealment, (9) false promise, (10) negligent misrepresentation, and (11) cancellation of instrument. On July 12, 2024, the Su and P&B filed the present demurrer. A hearing on the present demurrer is set for August 22, 2024, along with a case management conference and OSC Re: Failure to File Proof of Service. ANALYSIS Su and P&B demur to Dynatrans and Lis first, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and eleventh causes of action. For the following reasons, the court finds parties did not adequately meet and confer. Legal Standard Pursuant to Code of Civil Procedure section 430.41, subdivision (a), prior to filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. This section further provides that the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. (Code Civ. Proc., § 430.41, subd. (a)(1).) While Code of Civil Procedure section 430.41, subdivision (a)(4) makes clear failing to meet and confer is not grounds to overrule a demurrer, courts are not required to ignore defects in the meet and confer process and if the court determines no meet and confer has taken place, or concludes further conferences between counsel would likely be productive, it retains discretion to order counsel to meaningfully discuss the pleadings with an eye toward reducing the number of issues or eliminating the need for a demurrer, and to continue the hearing date to facilitate that effort. (Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 355 & fn. 3.) Discussion Here, Su and P&Bs counsel attempted to meet and confer by sending an email to Dynatrans and Lis counsel on May 28, 2024. (Gross Decl., ¶ 3.) Because email communications are not code-compliant means of meeting and conferring and counsels declaration does not state if counsel held telephonic discussions, the court finds the parties have failed to adequately meet and confer. Thus, a continuance of the hearing on their demurrer is appropriate. CONCLUSION Based on the foregoing, the Su and P&Bs demurrer is CONTINUED to a date to be determined at the hearing in Department G (Pomona). The Su and P&Bs counsel is also ordered to meet and confer with Dynatrans and Lis counsel regarding the demurrer and to file a supplemental declaration describing such meet and confer efforts at least nine (9) court days before the next scheduled hearing on the demurrer.

Ruling

JEFF FULLER VS JAMIE MCCOURT, ET AL.

Aug 23, 2024 |6/18/2022 |21SMCV01145

Case Number: 21SMCV01145 Hearing Date: August 23, 2024 Dept: I The court has seen the application. Although the court has not yet seen it, the court is pretty convinced that there will be an opposition. Without having seen the opposition, and subject to change based on that opposition or oral argument, the courts views are as follows. A few things. The court still lacks a substitution of counsel. The court allowed counsel to appear at the last hearing on the promise that it would be coming forthwith and because there was a request to continue the motions. The order to continue was granted, but the court warned counsel at that time that he had a lot to do and not much time to do it. The court gave a three week continuance, but here we are again. The court also set a deadline of August 15, 2024, for Fullers new counsel to file a formal substitution of attorney. None has been filed. Second, the court is concerned about trial continuances. The courts calendar is such that it will not likely be just a little while, and it is prejudicial to the defense to have a long continuance. The court notes that when it granted the last continuance, it stated that Assuming that defendants are forthcoming in discovery, including the McCourt deposition, the court does not anticipate any further motions to continue, and such a motion will be looked at by the court with some not insignificant degree of skepticism. Third, Mr. Georges letter is not an inappropriate tirade. The court would have preferred a more civil tone, but the point is that plaintiffs counsel must choose to be in the case or not. That decision has consequences. First off, if plaintiffs counsel is not counsel of record, then the notices are nullities. Mr. George is right about that. Second, given that there is a motion for sanctions under 128.5 and a likely malicious prosecution action to come if that motion is denied (or maybe even if it is granted), being counsel of record has more meaning than it might otherwise have. McCourts counsel indicated as much to Fullers counsel at the last hearing. Mr. George was within his rights to point that out and, under the circ*mstances, insist that counsel is either in or out. And, as stated above, Fullers counsel was ordered to file a substitution of counsel no later than August 15, 2024. Extra time was given so that new counsel could decide whether to undertake the representation in light defendants contentions and the amount of work that had to be done. It is now past August 15, 2024, and no substitution was filed. The court can only assume that counsel has elected not to file. If that is the case, then this application will be denied as improper. That said, the court will overlook that problem if counsel now and unequivocally substitutes in for all purposes. Otherwise, all papers by new counsel are stricken as unauthorized. Fourth, as to the documents. The court agrees a bit and disagrees a bit. To the extent that there are documents that McCourt agreed to produce but has not yet produced, they are long overdue and there is nothing improper about demanding them and demanding them now. They should have been produced long, long ago. But that is only documents McCourt agreed to produce or that the court ordered produced. Documents to which objections were made but not challenged are outside the scope of that. Further, if plaintiff has particular documents in mind, plaintiff must specify them so that defendant can ascertain what to do. By way of example, if defendant had agreed to provide bank statements for a particular period and it was discovered that there was a missing month, it is proper for plaintiff to point out the missing month and for defendant to produce that statement forthwith. Given that the assertion is that prior counsel discovered particular missing documents, that ought not be too much of a burden. But a demand that defendant re-produce a broadside of documents on minimal notice is not reasonable. As to the dates of the McCourt deposition, neither side covered itself in glory here. McCourt was not terribly responsive early on. There were major battles about that deposition with McCourt taking unilateral positions not well-founded in law. All of that said, the deposition was eventually set for a date certain, but when Fullers counsel withdrew, it became an untenable date. That is hardly McCourts fault. She agreed to a date and, so far as the court knows, she was willing to keep to that date; it was plaintiff who cancelled the party. Since then, it does not appear that McCourt has offered other dates for deposition. The court would have expected a bit more from McCourt. This is one where McCourt is quite right to insist on Fullers counsel stepping in, but once in, the court would expect that dates be given. That is because the simple fact is that on this record, there is a reasonable likelihood that neither the MSJ nor the sanctions motion can be granted absent allowing that discovery. The court could, in the teeth of an objection by McCourt to moving the MSJ date, draw an inference that McCourt does not want to be deposed because her testimony would undermine the two motions, and the court is prepared to draw that inference. That might have been a silver bullet for Fuller but for the fact that his lawyer is not authorized to set a deposition date, let alone take the deposition, because he wont substitute in as counsel, and now it is past the opposition date. Finally, the court is aware of the trial conflict with Judge Hammond. However, the dates in this case were all on the calendar when counsel (kind of) took the case, and counsel was warned about them. The court has very little sympathy for that conflict. In short, the court, all things being weighed and with an effort to do justice and issue orders that are consistent with the exercise of discretion with an eye toward adjudications on the merits rather than adjudications for procedural foot faults, will consider issuing the following order assuming Fullers counsel substitutes in here and now for all purposes: (1) the motions will be continued for four weeks; (2) the McCourt deposition will go forward within the next 8 court days and a rough transcript can be used rather than a final subject to lodging the final when it becomes available if counsel declares that the rough transcript is substantially accurate; (3) the opposition to the motions and optional replies will be filed per code; (4) McCourt will produce any documents she has agreed to produce or that have been ordered produced, but that have not yet been produced, within 2 court days of today; (5) the trial date stands; (6) the discovery cut-offs all stand; (7) the FSC and trial court rules all stand; (8) Fullers counsel is admonished that given the proximity of the trial and these motions, it might be harder than usual to withdraw by way of court order; (9) there will be no further continuances of the summary judgment motion or the motion for sanctions other than by reason of very extraordinary circ*mstances, such as hospitalization. The court assumes that defense counsel at the McCourt deposition give a fair deposition and are not obstreperous. If McCourts counsel violates the rules or impedes the deposition (and we all know how it is donethe court will know it when the court sees it), the court will need to continue the MSJ, and that will mean continuing the trial. The court makes no guarantees as to the next trial date other than to say that Fullers counsel will no longer need to be worried about adequate time to prepare, nor will it make guarantees as to whether it will keep the discovery cut offs in place. The McCourt deposition, once started, will go day to day until complete, weekends and court holidays excepted. Given that Fuller was deposed for four days (more or less), the court doubts that the 7 hour rule will be enforced as to McCourt. That said, if the deposition is terminated due to misconduct by Fullers counsel, and if the court agrees that misconduct occurred, the deposition will be deemed concluded for all purposes. Had McCourt offered a date certain for the deposition (on condition that counsel substitute in before the deposition) on the days Fullers counsel had suggested, the court might have denied the request outright.

Ruling

FCS059449 - SAUVAGEAU, DAN, ET AL V ADAMS, SETH, ET AL (DMS)

Aug 20, 2024 |FCS059449

FCS059449The ADAMS’ Motion to Compel SAUVAGEAU’s Further Responses to Form andSpecial Interrogatories, Requests for Admission, and Requests for ProductionTENTATIVE RULINGDefendants SETH ADAMS and JESSICA ADAMS (the “ADAMS”) move to compelPlaintiff DAN SAUVAGEAU (“SAUVAGEAU”) to further respond to Defendants’requests for production, requests for admission, and form and special interrogatoriesserved October 11, 2023.The court has not received opposition to the motion.Meet and Confer Efforts. The court first considers the adequacy of the parties’ effortsto meet and confer to work these issues out before resorting to a motion to compelfurther responses. The trial court has discretion in determining whether adequate meetand confer efforts preceded the filing of the motion. (Obregon v. Superior Court (1998)67 Cal.App.4th 424 [factors include complexity of discovery issues, history of counsel inprior disputes, judge's gut feeling; sending one brief letter 13 days prior to deadline tofile motion was not sufficient attempt].)Code of Civil Procedure section 2016.040 requires a declaration “showing a reasonableand good faith attempt at an informal resolution of each issue presented by the motion”to compel. The ADAMS’ counsel’s declaration accompanying the motion to compelstates that counsel sent the discovery requests at issue on October 11, 2023, receivedobjection-only responses on December 4, 2023, and received material responses onFebruary 2, 2024. (Declaration of Leslee Carroll in Support of Motion at ¶¶ 2-3, 5-8,Exhibits A-E.) The ADAMS sent a meet and confer letter on March 1, 2024. (Id. at ¶10, Exhibit F.) SAUVAGEAU responded and the parties engaged in some discussionthat resulted in SAUVAGEAU providing amended responses on March 22, 2024. (Id. at¶ 13.) The ADAMS considered the amended responses still unsatisfactory and sentSAUVAGEAU another meet and confer letter on April 12, 2024. (Id. at ¶ 19, Exhibit H.)SAUVAGEAU’s counsel responded but no material discussions took place; the ADAMSsent another meet and confer letter on May 17, 2024. (Id. at ¶¶ 20-26, Exhibits I-L.)SAUVAGEAU’s counsel again did not materially respond and expressed that he felt theresponses were adequate. (Id. at ¶ 27, Exhibit M.) The instant motion was filed on May20, 2024.The court finds that Defendants’ efforts to meet and confer were adequate as theparties appear to have reached an impasse.Special Interrogatories. Special Interrogatories #1, 4, 7, 10, 13, 16, 19, 21-22, 24-25,27, 37, 40, 43, 47, 73, 89, and 93. SAUVAGEAU’s several-page narrative laying out hisperception of all that transpired between the parties and his theory of the case, with alist of witnesses at the end, is not a straightforward answer to the ADAMS’ variouscontention interrogatories seeking facts supporting particular aspects of the case.SAUVAGEAU must further respond.Special Interrogatories #2, 5, 8, 11, 14, 17, 41, 44, 48, 51, 55, 58, 61, 74, and 113.SAUVAGEAU’s witness list mentioned above is vague, including an unnamed “buildinginspector.” SAUVAGEAU must further respond.Special Interrogatory #38. SAUVAGEAU’s statement that he, the ADAMS, Cross-Defendant MARC PASQUINI, and “all the workers on site” and “building inspector” arewitnesses to harm is too vague. SAUVAGEAU must further respond.Special Interrogatories #3, 6, 9, 12, 15, 18, 39, 42, 45, 49, 52, 56, 59, 62, 75, 80, 82, 84,86, 88, and 114. SAUVAGEAU “identifies all documents produced to Defendantspreviously and concurrently herewith” in response to these requests for documentssupporting various other responses, each concerning particular topics. This isunacceptably vague and lacking particularity. SAUVAGEAU must further respond.Special Interrogatories #28-30. SAUVAGEAU is not clear about what substantiallyperformed work was paid or unpaid and gives a list “including but not limited to” someparticular items that were “changed and/or unpaid.” This is too vague. SAUVAGEAUmust further respond.Special Interrogatories #31-33. SAUVAGEAU’s response that the ADAMS hiredworkers without his authorization is not responsive to these questions about the workershe employed. SAUVAGEAU must further respond.Special Interrogatories #34-36. SAUVAGEAU does not give intelligible responses. Tothe interrogatory asking for vendors and costs he states he cannot identify persons; tothe one asking for persons he states he cannot identify documents. He again directsthe ADAMS to every document produced, with no particularity. SAUVAGEAU mustfurther respond.Special Interrogatories #46, 50, 53-54, 57, 60. SAUVAGEAU’s reference to alldocuments produced is vague. SAUVAGEAU must further respond.Special Interrogatory #72. SAUVAGEAU’s response that he requires an attorney tounderstand the phrase “work outside the contract” is unresponsive. SAUVAGEAU mustfurther respond.Special Interrogatories #76-78. SAUVAGEAU’s statement that he did not performdefective work suffices to answer these questions contingent on the existence ofdefective work. He need not further respond.Special Interrogatory #90. The ADAMS ask SAUVAGEAU how much profit he expectedto make off particularly named items allegedly taken out of the scope of work. He stateshe generally gets 10% of the contract price and says the ADAMS removed $75,000 ofwork. This is vague. SAUVAGEAU must further respond.Special Interrogatories #96-98. SAUVAGEAU’s narrative and reference to alldocuments are again vague. He must further respond.Special Interrogatories #99, 101-104, 106-108. The ADAMS ask SAUVAGEAU forevery employee and subcontractor that worked on the project, and for thesubcontractors’ scopes of work and outstanding pay owed, with supporting witnessesand documents. He refers them to his narrative and witness list, which is notresponsive. He must further respond.Special Interrogatory #109. The ADAMS ask SAUVAGEAU to tell them how hedetermined the project was worth $750,000 in county planning documents. He says itwas an estimate. That is a responsive statement. SAUVAGEAU need not furtherrespond.Form Interrogatories. Form Interrogatory #309.1. SAUVAGEAU’s response to thisinterrogatory asking after additional damages is not specific enough. He must furtherrespond.Form Interrogatory #314.1. SAUVAGEAU’s reference to the contracts attached to hiscomplaint is not responsive. SAUVAGEAU must further respond.Form Interrogatories #314.2-314.3. SAUVAGEAU’s narrative does not answerparticulars about when alleged breaches occurred. He must further respond.Form Interrogatories #314.5-314.6. SAUVAGEAU says he does not know ifa*greements were unenforceable or unambiguous because he is not a lawyer. This isnot responsive. SAUVAGEAU must further respond.Form Interrogatory #314.7. SAUVAGEAU’s reference to attached contracts isinsufficiently particular and unresponsive. SAUVAGEAU must further respond.Form Interrogatory #321.1. SAUVAGEAU’s statement that he had no supervisingemployees is responsive to this interrogatory. He need not further respond.Form Interrogatory #321.2. SAUVAGEAU’s witness list is not responsive to thisinterrogatory. He must further respond.Form Interrogatories #321.3-321.4. SAUVAGEAU’s reference to all produceddocuments is not responsive. He must further respond.Form Interrogatory #321.5-321.6. SAUVAGEAU’s reference to his complaint andattached contracts, his narrative, and “all documents” is vague. He must furtherrespond.Form Interrogatory #321.9. SAUVAGEAU’s reference to “all plan specs producedherewith” is vague. He must further respond.Form Interrogatory #324.1, 325.1-352.4. SAUVAGEAU’s narrative is not specificenough to respond to these interrogatories and does not identify witnesses anddocuments as requested. SAUVAGEAU must further respond.Form Interrogatory #326.1. SAUVAGEAU’s narrative is unresponsive to thisinterrogatory concerning qualifications on admissions. He must further respond.Requests for Admission #7. The ADAMS ask SAUVAGEAU to admit the contractbetween them was “fixed-price.” He says he cannot understand the question but thenalso says it was “clearly” not a fixed-price contract. He must further respond to clarifyhis position.Requests for Production. SAUVAGEAU must further respond to Requests #8, 9, 14,and 17 produce responsive documents in his possession if any remain. However, withregard to #10 and 15 SAUVAGEAU states no responsive documents have ever existed,which is a sufficient response and he need not further respond.Sanctions. Code of Civil Procedure sections 2030.300, subdivision (d)[interrogatories], 2031.310, subdivision (h) [inspection demands], and 2033.290,subdivision (d) [requests for admissions] require sanctions against a party thatunsuccessfully makes or opposes a motion to compel further responses tointerrogatories, unless the court finds that the losing party acted with substantialjustification or that other circ*mstances weigh against the imposition of sanctions.SAUVAGEAU’s responses were frequently vague and unresponsive. Sanctions areimposed in the sum of $3,000.Conclusion. The ADAMS’ motion to compel further responses is granted with regardto all form interrogatories at issue except #321.1.The motion is granted with regard to the sole request for admission at issue, #7.The motion is granted with regard to all special interrogatories at issue except #76-78and 109.The motion is granted with regard to requests for production #8, 9, 14, and 17.The motion is otherwise denied.SAUVAGEAU is ordered to pay sanctions in the sum of $3,000 within thirty days of thedate of this order.Join ZoomGov Meetinghttps://www.zoomgov.com/j/1602210102?pwd=emlhR29SczExam56NFFqWHFvSitmZz09Meeting ID: 160 221 0102Passcode: 650928One tap mobile+16692545252,,1602210102#,,,,*650928# US (San Jose)+16692161590,,1602210102#,,,,*650928# US (San Jose)

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