Contract Complaint Filed (Jury Demand) May 11, 2022 (2024)

Case

Capital One, N.A.-vs-Melanie Brauer

Jun 28, 2024 |Courtroom, 1106 |Breach of Contract - Non-Jury |20241116800

Case

ALLIED WASTE TRANSPORTATION INC., d/b/a REPUBLIC SERVICES OF CHICAGO-vs-DORCHESTER FOUR LLC d/b/a SAFE HARBOR

Jun 28, 2024 |Courtroom, 1106 |Breach of Contract - Non-Jury |20241116765

Case

Alden Poplar Creek Rehabilitation and Health Care Center, Inc.-vs-Sue Gottschalk

Jul 11, 2024 |Patrick J. Sherlock |Breach of Contract - Non-Jury |2024-L-007656

Case

Auxilior Capital Partners, Inc. ,Ranko Stankovic-vs-Freight Solution Services, Inc.

Jul 10, 2024 |Calendar, U |Breach of Contract - Non-Jury |2024-L-007621

Case

People of the State of Illinois ex rel Illinois Department of Human Services-vs-Gwenevere Spencer

Jun 27, 2024 |Courtroom, 1102 |Breach of Contract - Non-Jury |20241116708

Case

ODK Capital, LLC-vs-NICHOLAS KINPORTS

Jul 09, 2024 |Jerry A. Esrig |Breach of Contract - Non-Jury |2024-L-007563

Case

BRAINTECH INC., a California corporation-vs-DATA CONSULTANTS CORPORATION, a New York corporation

Jul 01, 2024 |Courtroom, 1112 |Breach of Contract - Non-Jury |20241116917

Case

EUROMOLD CORPORATION D/B/A HVAC TECHNICAL INSTITUTE -vs- MALIK PAYNE

Jul 03, 2024 |Courtroom, 1110 |Breach of Contract - Small Claims - Non-Jury |20241117059

Case

LVNV Funding LLC-vs-Matthew Deneen

Jul 03, 2024 |Courtroom, 1108 |Breach of Contract - Non-Jury |20241117252

Ruling

Ruben Perez vs. Adrian Perez

Jul 10, 2024 |23CECG01147

Re: Ruben Perez v. Adrian Perez Superior Court Case No. 23CECG01147Hearing Date: July 10, 2024 (Dept. 501)Motion: by Defendant to Dismiss and Expunge Lis PendensTentative Ruling: To continue the matter to Tuesday, August 6, 2024, at 3:30 p.m. in Department 501in order for defendant to perfect proof of service. Defendant is to file an amended proofof service no later than July 15, 2024, demonstrating that plaintiff has been properlyserved. The court intends to order plaintiff, plaintiff’s counsel, and defendant to appear atthe continued hearing date.Explanation: The Proof of Service of the motion is defective. A proof of service shall include thename and address of the person making the service. (Cal. Code Regs. Tit. 1, § 1008,subd. (a).) It shall also identify the name and address where service was accomplishedand the method of service. (Ibid.) The proof of service does not state the method ofservice or where service was made. It may be that the motion was properly served, butthat cannot be determined on the face of the proof of service. The court is thereforecontinuing the matter so that defendant can address the proof of service issue. (CodeCiv. Proc., § 1005, subd. (b).) 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: DTT on 7/9/2024 . (Judge’s initials) (Date)

Ruling

Richard Bartel vs Chicago Title Insurance Company

Jul 11, 2024 |16CV02814

16CV02814BARTEL v. CHICAGO TITLE INSURANCE COMPANY (UNOPPOSED) PLAINTIFF BARTEL’S MOTION TO TAX COSTS Given the parties representation that they are finalizing a stipulation, no tentative will beposted. Page 3 of 3

Ruling

WILMINGTON TRUST, NATIONAL ASSOCIATION, AS ET AL VS. EMPORIUM MALL LLC, A DELAWARE LIMITED LIABILTY ET AL

Jul 11, 2024 |CGC23609424

Real Property/Housing Court Law and Motion Calendar for July 11, 2024 line 3. DEFENDANT EMPORIUM MALL LLC, A DELAWARE LIMITED LIABILTY COMPANY, S.F. CENTRE LIMITED PARTNERSHIP, A DELAWARE MOTION OF DEFENDANTS EMPORIUM MALL LLC AND S.F. CENTRE LIMITED PARTNERSHIP FOR ORDER STAYING LITIGATION; MEMORANDUM OF POINTS AND AUTHORITIES is continued to July 15, 2024 per July 10, 2024 ex-parte order. =(501/HEK) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.

Ruling

ASHTEL STUDIOS, INC., A CALIFORNIA CORPORATION VS MATTHEW JOHN SANDVIG, ET AL.

Jul 09, 2024 |22LBCV00191

Case Number: 22LBCV00191 Hearing Date: July 9, 2024 Dept: S25 Procedural Background On April 28, 2022, Plaintiff filed a complaint against Defendants Matthew John Sandvig (Sandvig), Oak Sourcing & Logistics, LLC (OSL) and Oak Insurance Group, LLC (Oak Insurance) (collectively Defendants), alleging breach of contract, fraudulent inducement, open book account and quantum meruit. On December 21, 2022, Plaintiff filed a first amended complaint. On June 24, 2023, Defendants filed an answer to Plaintiffs first amended complaint; that same day, Defendant OSL filed a cross-complaint against Plaintiff Ashtel Studios, Inc. On July 27, 2023, OSL filed a first amended cross-complaint (FAXC). On August 9, 2023, Plaintiff and Cross-Defendant Ashtel Studios, Inc. filed an answer to the FAXC of OSL. On August 15, 2023, the Court, with the Honorable Judge Mark C. Kim presiding, ordered a discovery referee appointed pursuant to Code of Civil Procedure section 639, subdivision (a)(5). (August 15, 2023 Order Appointing Referee.) The Court appointed Peter L. Weinberger as the referee. The Order specifies that the referee was appointed for All discovery purposes in this action. (Id., p.2.) On March 26, 2024, Plaintiff filed a motion to compel Defendant Sandvigs further responses to Plaintiffs Request for Production of Documents, Set Two. On April 2, 2024, Defendant Sandvig filed an opposition. On April 16, 2024, Plaintiff filed a reply. This discovery dispute was to be heard by Referee Weinberger. On April 23, 2024, Referee Weinberger heard the instant discovery motion filed by Plaintiff, seeking to compel further Defendant Sandvigs further responses to Plaintiffs Request for Production of Documents, Set Two. On May 15, 2024, Referee Weinberger issued a report and recommendation regarding the instant motion. (May 15, 2024 Report of Referee.) On May 28, 2024, Plaintiff filed an objection to Discovery Referees Recommendation re motion to compel further responses to Plaintiffs Request for Production of Documents, Set Two, from Defendant Sandvig. As of July 3, 2024, Defendant Sandvig has not filed any response to the filed objection. Legal Standards Reviewing Orders of a Discovery Referee When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640: & When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon. (Code Civ. Proc., § 639, subd. (a)(5).) A referee must report their decision to the Court within 20 days after the hearing, unless the Court otherwise provides. (Code Civ. Proc., § 643, subd. (a).) Any party may file an objection to the referees report or recommendations within 10 days after the referee serves and files the report, or within another time as the court may direct. (Code Civ. Proc., § 643, subd. (c).) Responses to the objections shall be filed with the court and served on the referee and all other parties within 10 days after the objection is served. (Id.) The court shall review any objections to the report and any responses submitted to those objections and shall thereafter enter appropriate orders. (Id.) A discovery referees report is advisory, not determinative, and the trial court must independently consider the referees findings before acting upon the referees recommendations. (Marathon Nat. Bank v. Superior Court (1993) 19 Cal.App.4th 1256, 1261.) [T]he referee's recommendations are entitled to great weight. (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 176.) Motion to Compel Further Responses to Request for Production of Documents On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete; (2) A representation of inability to comply is inadequate, incomplete, or evasive; (3) An objection in the response is without merit or too general. (Code Civ. Proc., 2031.310, subd. (a).) Next, the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.310, subd. (h).) A court has discretion to fix the amount of reasonable monetary sanctions. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771.) Analysis Plaintiff objects to Discovery Referees Recommendation as to Request Nos. 84, 85, 87-90, 96-99 and 103-106. Plaintiff argues that it is entitled to the above-mentioned requests as they are relevant to establish alter-ego status between Defendants Sandvig, OSL, Oak Insurance and the Sandvig entities (USIG, LLC, VPayPro, LLC, 454 Deer Road LLC, Oak Capital Company Holdings, LLC, and Oak Processing Group, LLC). (See Ganesan Decl. ISO Motion to Compel Further Responses, ¶ 13, Exh. E [December 1, 2023 Deposition of Defendant Sandvig] at 12:17-24, 13:1-3, 14:8-12, 16:1-10, 17:12-22, 22:1-10, 26:18-12, 33:13-22, 44:11-23, 45:1:10, 52:12-53:22, 54:2-18 [these deposition excerpts refer to the various entities owned by or affiliated with Defendant Sandvig and his wife as well as money transfer between companies that are or are related to Defendant Sandvigs entities.) Plaintiff counsel further states being prevented from asking Defendant Sandvig about the alter ego relationship with any entity during the December 1, 2023 Defendant Sandvig deposition. (Id. at 23:25-25:24.) Request Nos. 84, 87, 90, 96 seek all documents, including bank statements, relating to USIG, LLC, VPayPro, LLC, 454 Deer Road LLC and Oak Capital Company Holdings LLCs bank accounts, respectively. The Discovery Referee recommends Defendant Sandvig produce the above-listed entities bank statements but allow redaction of the documents from the respective entities for transactions less than $5,000 as well as transactions with anyone other than Sandvig entities or Defendants OSL and/or Oak Insurance. Plaintiffs objection to the Discovery Referees recommendation as to these requests is OVERRULED. Discovery of every transaction of the Sandvig entities unrelated to Defendant Sandvig, OSL and Oak Insurance is overbroad and irrelevant. The Court agrees with the Discovery Referee that a $5,000 threshold is reasonable as Plaintiff has not expressed a specific need to identify transactions below that number. Request Nos. 85, 88, 97 seek all documents sufficient to identify each person having an interest in VPayPro, LLC, 454 Deer Road LLC and Oak Processing Group LLC, respectively. The Discovery Referee recommends Defendant Sandvig produce portions of the operating agreements of the above-listed entities that reflect the members of each entity and the percentage interest of each member. Plaintiff objects, arguing that there is no stated basis, privacy or otherwise, why the operating agreements should not be fully produced. Further, Plaintiff contends redactions create greater burden and expense for Defendant Sandvig. Plaintiffs objection to the Discovery Referees recommendation as to these requests is OVERRULED. Allowing the unredacted operating agreements of the various entities is overbroad and not reasonably calculated in terms identifying the individuals having an interest in the various entities. Request No. 89 seeks all official corporate records of 454 Deer Road LLC. The Discovery Referee recommends denying without prejudice Plaintiffs request for the above-listed entities corporate documents because Plaintiff has not currently shown the documents to be relevant or could lead to the discovery of admissible evidence. Plaintiff argues this request is relevant because Defendant Sandvig co-owned 454 Deer Road LLC through one of his entities, Defendant Oak Insurance purportedly transferred $20,000 to 454 Deer Road and 454 Deer Road LLC owned a property that was the Oak Insurance headquarters. (See Ganesan Decl. ISO Motion to Compel Further Responses, ¶ 13, Exh. E at 53:10-22, 54:2-18). Plaintiffs objection to the Discovery Referees recommendation as to this request is OVERRULED. The Court finds that requesting for all official corporate records of 454 Deer Road LLC is overbroad and unduly burdensome. Request No. 98 asks for all official corporate records of Oak Processing Group LLC. The Discovery Referee recommends denying without prejudice Plaintiffs request without specific justification. Plaintiff argues this request is relevant because Defendant Sandvig co-owned Oak Processing Group LLC through one of his entities. (See id.at 44:11-23.) Plaintiffs objection to the Discovery Referees recommendation as to this request is OVERRULED. The Court finds that requesting for all official corporate records of Oak Processing Group LLC is overbroad, irrelevant and unduly burdensome. Request No. 99 asks for all documents relating to OSLs deposits or withdrawals at Wells Fargo Bank branches in the form of case or cashiers checks for amounts greater than $4,000. The Discovery Referee recommends denying without prejudice Plaintiffs request but does not provide any specific justification. Plaintiff argues this request is relevant because Defendant Sandvig controls the bank account of OSL. (See id. at 22:1-10.) Plaintiffs objection to the Discovery Referees recommendation as to this request is SUSTAINED. The Court finds this request relevant to determining Plaintiffs alter ego theory (e.g. Plaintiffs claim that large withdrawals and deposits to/from Defendant OSL and Oak Insurances bank accounts and that USIG loaned money to Defendant OSL to pay legal bills). (See Ganesan Decl. ISO Motion to Compel Further Responses, ¶ 8.) Request No. 103 asks for all documents supporting loans made to OSL by any entity Defendant Sandvig has a direct or indirect interest. The Discovery Referee recommends Defendant Sandvig produce the requested loan documents, but only loans for amounts $10,000 or higher. The Discovery Referee also limited the request to the period to November 1, 2020 to the present. Plaintiff objects to the extent that the loan documents must reach a threshold of $10,000 and argues that any loans between Defendants and/or the Sandvig entities are equally relevant, regardless of the $10,000 minimum threshold. Plaintiffs objection to the Discovery Referees recommendation as to this request is OVERRULED, in part. Defendant Sandvig is ordered to produce the requested loan documents, but only loans for amounts $5,000 or higher. Request No. 104 asks for all documents supporting loans made to Oak Insurance by any entity Defendant Sandvig has a direct or indirect interest. The Discovery Referee recommends Defendant Sandvig produce the requested loan documents, but only loans for amounts $10,000 or higher. The Discovery Referee also limited the request to the period to November 1, 2020 to the present. Plaintiff objects to the extent that the loan documents must reach a threshold of $10,000 and argues that any loans between Defendants and/or the Sandvig entities are equally relevant, regardless of the $10,000 minimum threshold. Plaintiffs objection to the Discovery Referees recommendation as to this request is OVERRULED, in part. Defendant Sandvig is ordered to produce the requested loan documents, but only loans for amounts $5,000 or higher. Request No. 105 asks for all documents supporting loans made by OSL to any entity Defendant Sandvig has a direct or indirect interest. The Discovery Referee recommends Defendant Sandvig produce the requested loan documents, but only loans for amounts $10,000 or higher. The Discovery Referee also limited the request to the period to November 1, 2020 to the present. Plaintiff objects to the extent that the loan documents must reach a threshold of $10,000 and argues that any loans between Defendants and/or the Sandvig entities are equally relevant, regardless of the $10,000 minimum threshold. Plaintiffs objection to the Discovery Referees recommendation as to this request is SUSTAINED, in part Defendant Sandvig produce the requested loan documents, but only loans for amounts $5,000 or higher. Request No. 106 asks for all documents supporting loans made by Oak Insurance to any entity Defendant Sandvig has a direct or indirect interest. The Discovery Referee recommends Defendant Sandvig produce the requested loan documents, but only loans for amounts $10,000 or higher. The Discovery Referee also limited the request to the period to November 1, 2020 to the present. Plaintiff objects to the extent that the loan documents must reach a threshold of $10,000 and argues that any loans between Defendants and/or the Sandvig entities are equally relevant, regardless of the $10,000 minimum threshold. Plaintiffs objection to the Discovery Referees recommendation as to this request is SUSTAINED, in part. Defendant Sandvig is ordered to produce the requested loan documents, but only loans for amounts $5,000 or higher. The Discovery Referee recommended that no sanctions be awarded as the parties had a good faith discovery dispute. (See May 15, 2024 Report of Referee, p. 18.) In its objection, Plaintiff requests the Court award monetary sanctions in the amount of $20,060.00, arguing that Defendant Sandvig asserted unmeritorious objections, refused to serve further responses, and refused to even search for the existence of responsive documents without substantial justification. (See Ganesan Decl. ISO Motion to Compel Further Responses, ¶¶ 20-22 [breakdown of attorney fees and costs incurred for the relevant discovery motion.]) Ruling Plaintiffs Objections to the Discovery Referees Recommendations are sustained, in part. Defendant Sandvig is ordered to produce further verified responses to Plaintiffs Request for Production of Documents Nos. 99, 103-106 as modified by the Court within 20 days of this order. Plaintiffs sanctions request is overruled.

Ruling

FIRST TECHNOLOGY FEDERAL CREDIT UNION VS MATTHEW CHRISTOPHER THOMAS, ET AL.

Jul 10, 2024 |24STCV06346

Case Number: 24STCV06346 Hearing Date: July 10, 2024 Dept: 82 First Technology Federal Credit Union v. Matthew Christopher Thomas, et al. Case No. 24STCV06346 Order Denying Application for Writ of Possession INTRODUCTION Plaintiff First Technology Federal Credit Union (Plaintiff) moves for a writ of possession against Defendant Matthew Christopher Thomas (Defendant) over the following property: 2022 Tesla Model X, Vehicle Identification Number 7SAXCBE69NF333811 (the Vehicle). Plaintiff has not shown probable cause to believe that the Vehicle is located at the address specified in the application, as required by statute. (See Code Civ. Proc. §§ 512.010(b)(4), 512.080.) Accordingly, the application is denied without prejudice. LEGAL STANDARD Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought. (Code Civ. Proc. § 512.010(a).) Pursuant to Code of Civil Procedure section 512.010(b), the application must be submitted under oath and include: (1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiff's claim is a written instrument, a copy of the instrument shall be attached. (2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention. (3) A particular description of the property and a statement of its value. (4) A statement, according to the best knowledge, information, and belief of the plaintiff, of the location of the property and, if the property, or some part of it, is within a private place which may have to be entered to take possession, a showing that there is probable cause to believe that such property is located there. (5) A statement that the property has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure. Before the hearing on the Writ of Possession, the Defendant must be served with (1) a copy of the summons and complaint; (2) a Notice of Application and Hearing; and (3) a copy of the application and any affidavit in support thereof. (Code Civ. Proc. § 512.030.) The writ will be issued if the court finds that the plaintiff's claim is probably valid and the other requirements for issuing the writ are established. (Code Civ. Proc. § 512.040(b).) A claim has probable validity where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim. (Code Civ. Proc. § 511.090.) DISCUSSION A. Probable Validity of Plaintiffs Claim Plaintiff seeks a writ of possession based on its claims for breach of contract and money lent. On or about November 29, 2022, Defendant entered into Loan and Security Agreements (the Contract) with Plaintiff to finance the purchase of the Vehicle. In consideration for an auto loan in the amount of $154,310.78, Defendant granted Plaintiff a security interest in the Vehicle and agreed to pay interest of 12.0300% per year. (Dexheimer Decl. ¶¶ 5-6, Exh. 1 and 2.) Defendant defaulted on the Contract by failing to make payments when due, and there is presently a balance due of $153,981.28, plus interest. (Id. ¶ 8, Exh. 3.) Therefore, Plaintiff has satisfied this requirement. B. Wrongful Detention Pursuant to Code of Civil Procedure section 512.010(b)(2), the application must include a showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention. Under the Contract, Plaintiff has the right to repossess the Vehicle in the event of default. (Dexheimer Decl. Exh. 1.) Plaintiff has demanded that Defendant surrender the Vehicle, and Defendant has refused to do so. (Id. ¶ 11.) Therefore, Plaintiff has satisfied this requirement. C. Description and Value of Property Pursuant to Code of Civil Procedure section 512.010(b)(3), the application must include a particular description of the property and a statement of its value. Plaintiff has provided a particular description of the property, by make, and VIN number. Plaintiff has also given a statement as to value. Therefore, Plaintiff has satisfied this requirement. D. Probable Location of the Vehicle The court denies this application without prejudice because Plaintiff does not include sufficient evidence of the location of the property and, if the property, or some part of it, is within a private place which may have to be entered to take possession, a showing that there is probable cause to believe that such property is located there, as required by Code of Civil Procedure section 512.010(b)(4). Plaintiffs application seeks a writ of possession directing the levying officer to take the Vehicle from Defendants last known residence address, which is a private place located at 4216 W. 59th Place, Los Angeles, CA 90043. (Appl. ¶ 6.) However, the declaration of Shaun Dexheimer is not sufficient to establish probable cause to believe the vehicle is located at that address. The declaration merely states: I am informed and believe that the Vehicle is currently in the possession of [Defendant] at his last known residence address and that Plaintiff is informed and believes that Defendant is concealing the Vehicle at his residence so Plaintiff cannot gain access to it. (Dexheimer Decl. ¶ 10.) The declaration provides no attribution for this information and appears to be based upon hearsay. Of equal concern, the record suggests that Plaintiff does not, in fact, reside at that address. Although Defendant listed the 59th Place address on his contract, Plaintiff has been personally serving Defendant at a different address: 3988 East Hardy Street, Apartment 132, in Inglewood, California 90303. The record does not clarify this inconsistency. Accordingly, Plaintiff does not establish sufficient probable cause to believe the vehicle is located at the address on the application. E. Turnover Order Plaintiff requests a turnover order. (See Memorandum 4:6-14.) Section 512.070 states: If a writ of possession is issued, the court may also issue an order directing the defendant to transfer possession of the property to the plaintiff. Such order shall contain a notice to the defendant that failure to turn over possession of such property to plaintiff may subject the defendant to being held in contempt of court. Thus a turnover order, issued pursuant to section 512.070, is not a separate remedy but rather an alternative means of enforcing a writ of possession. (Edwards v. Sup.Ct. (1991) 230 Cal.App.3d 173, 178.) Because the court is denying the application for a writ of possession, the court cannot issue a turnover order. CONCLUSION AND ORDER Based upon the foregoing, the court denies the application for a writ of possession without prejudice. Plaintiffs counsel shall provide notice and file proof of service with the court.

Ruling

RAYMOND GHERMEZIAN, ET AL. VS ALMA NUNEZ, ET AL.

Jul 09, 2024 |23STCV13104

Case Number: 23STCV13104 Hearing Date: July 9, 2024 Dept: 61 RAYMOND GHERMEZIAN, et al. vs ALMA NUNEZ, et al. TENTATIVE Plaintiffs Raymond Ghermezian and Raymond Ghermezian, APCs Motion for Protective Order is DENIED. No sanctions are awarded. Plaintiffs Raymond Ghermezian and Raymond Ghermezian, APCs Motion to Compel Deposition of Defendant Joseph H. Low IV is GRANTED. No sanctions are awarded. Defendant Joseph H. Low IVs Motion to Compel Deposition of Plaintiff Raymond Ghermezian is GRANTED. No sanctions are awarded. Plaintiffs to give notice. DISCUSSIONMOTION FOR PROTECTIVE ORDER Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc. 2025.420, subd. (a).) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (Code Civ. Proc., § 2025.420, subd. (b).) Plaintiff Raymond Ghermezian (Plaintiff) moves for an order preventing Defendants Alma Nunez and Joseph H. Low, IV (Defendants) from using an audio recording made by Nunez in the presence of Plaintiff without his consent in discovery, hearings, mediation, or any other purpose in this matter. (Motion at p. 2.) Plaintiff states that Nunez made an audio recording of him speaking to her regarding the underlying case, a fact revealed to him on May 28, 2024, during mediation in this matter.. (Ghermezian Decl. ¶ 3.) Plaintiff states the recording was played for the mediator and partially for himself. (Ibid.) Plaintiff contends that he did not consent to be recorded. (Ghermezian Decl. ¶ 4.) He argues that Defendants likely intend to present the recording at his deposition, in order to elicit testimony that may contradict its contents. (Ghermezian Decl. ¶ 5.) Defendants have no produced the recording in discovery. (Ghermezian Decl. ¶ 5.) Plaintiff relies on Penal Code § 632, which makes guilty of a misdemeanor any person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio. (Penal Code § 632, subd. (a).) This same statute states: Except as proof in an action or prosecution for violation of this section, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding. (Penal Code § 632, subd. (d).) Defendants argue that Penal Code § 632s prohibition does not apply here, because the presence of a third person during the recorded conversation evidenced by a third voice on the recording renders the conversation not confidential. (Opposition at pp. 89.) But Defendants cite no authority for this argument, and it is contradicted by the statutory text. The statute prohibits a persons recording of a confidential communication without the consent of all parties, and does not indicate a limitation to bilateral communications between two persons. (Penal Code § 632, subd. (a), italics added.) The statute defines confidential communication to mean any communication carried on in circ*mstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, once more indicating no limitation of confidentiality to two persons. (Penal Code § 632, subd. (c).) Defendants further argue that Penal Code § 632 is not applicable to civil proceedings(Opposition at p. 8), but this argument is contradicted by the statutory language itself, which prescribes inadmissibility in any judicial . . . proceedings, naturally including civil cases. (Penal Code § 632, subd. (d).) It is also contradicted by case authority, which has gone on to apply the provision to civil proceedings. (See Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1492 [Neither the tainted recordings nor the notes derived from them can be read in evidence.].) Defendants arguments for the inapplicability of Penal Code § 632 is therefore unpersuasive. But regardless of whether or not Penal Code § 632 is applicable, Plaintiff has not shown good cause for the protective order he seeks here. Plaintiff seeks a total prohibition on the use of the recording, a sweeping order finding no basis in the operative statute. The legislature has defined the remedy appropriate for illicit recordings, which include criminal penalties and direction that such evidence be not admissible in judicial proceedings. (Penal Code § 632, subd. (d).) Plaintiff in fact misquotes the statute in his motion, stating that it prohibits the use of any illegal recording in any judicial, administrative, legislative, or other proceeding. (Motion at p. 5, italics added.) But the statute does not prohibit the recordings use; it renders the recording not admissible. (Penal Code § 632, subd. (d).) Such a recording therefore may not be admitted into evidence but it may be used for other purposes, such as, refreshing the recollection of the parties to the conversation. (See Frio, supra, 203 Cal.app.3d at p. 1494 [[W]e are unaware of any decision holding that a witness may not testify after simply refreshing recollection with tainted evidence.].) Plaintiff is therefore not entitled to a protective order. The motion for protective order is therefore DENIED. II. MOTION TO COMPEL DEPOSITION A party may make a motion compelling a witnesss deposition after service of a deposition notice if that witness fails to appear for examination, or to proceed with it. (Code Civ. Proc. § 2025.450, subd. (a).) The motion must include a meet-and-confer declaration and show good cause for the discovery sought. (Code Civ. Proc. § 2025.450, subd. (b)(1), (2).) In competing motions, Plaintiff seeks to compel the deposition of Defendant Joseph R. Low, IV (Low), and Defendants seek to compel the deposition of Plaintiff. Defendants served Plaintiff with a deposition notice on April 30, 2024, with the deposition set for May 17, 2024, for which Plaintiff failed to appear after serving objections based on his lack of availability. (Lewis Decl. ¶¶ 34, Exhs. A, B.) Plaintiff stated in informal correspondence that he has priority for his deposition because he had noticed Lows deposition to take place first. (Lewis Decl. Exh. E.) Plaintiff, meanwhile, served Low with a deposition notice on February 1, 2024, with the deposition noticed for February 16, 2024. (Ghermezian Decl. ¶ 3, Exh. A.) Low objected to the date and to the requests for production on February 8, 2024. (Ghermezian Decl. ¶ 4, Exh. B.) Plaintiff sent an email on February 8, 2024, seeking alternative dates to depose Mr. Low in my office in February. (Ghermezian Decl. Exh. C.) Defendants evidently provided no dates. In a March 7, 2024 email, Defendants counsel told Plaintiff that Lows trial calendar one lasting six to eight weeks, another expected to last ten days would prevent his attendance at a mediation any earlier than the May 28 date offered by the mediator, (Ghermezian Decl. Exh. E.) But Defendants declined to offer dates for Lows deposition, even after noticing Plaintiffs deposition for May 17. (Ghermezian Decl. Exh. D.) Both parties motions shall be granted, and both Ghermezian and Low compelled to attend deposition. Both parties object on the basis of availability, yet neither have provided any dates of availability for the depositions to proceed. Plaintiff argues that he is entitled to take the deposition of Low first because he noticed the deposition first. (Opposition at pp. 23.) Plaintiff was not so entitled, because the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party. (Code Civ. Proc., § 2019.020, subd. (a).) Plaintiff relies on State Bar civility guidelines stating, When another party notices a deposition for the near future, absent unusual circ*mstances, an attorney should not schedule another deposition in the same case for an earlier date without opposing counsels agreement. (Cal. Attorney Guidelines of Civility and Professionalism, § 9, subd. (a)(1).) But the taking of Lows deposition during the time allotted by Plaintiff was prevented by Lows trial schedule. And in any event, these guidelines do not excuse either partys refusal to offer dates, in light of an express statutory directive against Plaintiffs argument limiting discovery based on priority. In addition to compelling Lows attendance at deposition, Plaintiff also seeks an order directing him to produce documents responsive to three requests for production contained in the deposition notice, which seek documents related to the settlement and Nunezs client file. (Motion at p. 5; Ghermezian Decl. Exh. A.) Although Defendants argue that they have already responded to similar requests offered as inspection demands (Opposition at pp. 34), Plaintiff may seek the same discovery by deposition notice that they earlier sought by written discovery, if they are dissatisfied with the earlier responses. (See Carter v. Superior Court (1990) 218 Cal.App.3d 994, 997 [[T]he inspection of documents procedure is quite different from a deposition at which a party is required to bring documents. Nothing in either section 2025 or section 2031 suggests that seeking documents under one statutory procedure bars a litigant from seeking the same documents under the other.].) The documents sought here relate to the subject matter of the action, and good cause for the production has been shown, subject to a privilege log under Code of Civil Procedure § 2031.240. The motions to compel deposition are therefore GRANTED. III. SANCTIONS If a motion to compel deposition is granted, the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2025.450, subd. (g)(1).) Plaintiff seeks $2,400.00 in sanctions against Defendants and their counsel, representing six hours of attorney work at $400 per hour. (Ghermezian Decl. ¶ 11.) Defendant Low seeks $3,660.00 in sanctions against Plaintiff, representing six hours of attorney work at $600 per hour plus a $60 filing fee. (Lewis Decl. ¶¶ 1315.) No sanctions are awarded on either motion, as the parties have obtained relief against each other. Sanctions are also mandatory against the party who unsuccessfully makes or opposes a motion for a protective order, absent substantial justification or other circ*mstances that make the award of the sanctions unjust. (Code Civ. Proc. § 2025.420, subd. (h). Plaintiff seeks $2,100.00 in sanctions, representing a miscalculation of seven hours of attorney work at $400, which should yield a total of $2,800.00. (Ghermezian Decl. ¶ 7.) Defendants in turn seek $2,880.00 in sanctions on the same motion, representing a miscalculation of 4.5 hours of attorney work at $600 per hour, which should yield a sanctions request of $2,700.00. (Lewis Decl. ¶ 13.) No sanctions under the protective order motion are appropriate, as Plaintiff sought the order based on a misinterpretation of the reach of Penal Code § 632, subd. (d), and Defendants opposed it based on a misinterpretation of Penal Code § 632, subd. (c). It would therefore be unjust to award sanctions to either party

Ruling

ANTON MISSION GROVE, LLC vs MISSION GROVE PLAZA, L.P.

Jul 10, 2024 |CVRI2401500

Demurrer on Complaint for Breach ofANTON MISSION GROVE, Contract/Warranty (Over $35,000) ofCVRI2401500 LLC vs MISSION GROVE ANTON MISSION GROVE, LLC byPLAZA, L.P. MISSION GROVE PLAZA, L.P.,MISSION GROVE 2013, INC.Tentative Ruling:Plaintiff, Anton Mission Grove, LLC, alleges that pursuant to a Purchase and Sale Agreement andEscrow Instructions dated 11/8/21 (Agreement or PSA) and six Amendments, it purchased realproperty located at 375 Alessandro Blvd. in Riverside consisting of 9.97 acres of land andapproximately 104,231 square feet of commercial improvements for $19,000,000. Plaintiff (Buyer)deposited $240,570 with the City of Riverside as advanced, anticipated costs to prepare anEnvironmental Impact Report (EIR) by a third-party consultant. The Agreement allegedlyterminated after execution of the Sixth Amendment at which time, Buyer was required to assignto Seller (Mission Grove Plaza, LP) all rights, title, and interest in Buyer’s work product includingall permit fees, EIR payments, etc., but it does not include the remainder of the deposit. Plaintiffalleges it is a breach of the Agreement for Defendant (Seller) to keep the remainder of the depositor to refuse to reimburse Plaintiff when the Agreement terminated. Plaintiff demanded paymentof the unused balance of the deposit ($145,370), but Defendant refused, and the City will notrelease the funds without consent by the Defendant.Plaintiff filed its Complaint on 3/19/24 alleging a single cause of action for breach of contract.***Counsel for Defendant, Mission Grove Plaza, LP, Theodore K. Stream, filed a form meet andconfer declaration pursuant to CCP § 430.41. (6/12/24 Dec.Stream.) Specifically, Defendantspoke with Plaintiff’s counsel by phone five days before a responsive pleading was due. (Id. ¶2.a.)Defendant, Mission Grove Plaza, LP (Mission Grove), brings this demurrer to Plaintiff’s Complaintfor failure to state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) Mission Groveargues that there is only one reasonable interpretation of the Agreement; that there is no disputethe $240,570 was earmarked for preparation of the EIR, and once the money was used, it wouldbe considered Entitlement Work Product, which was automatically assigned to Mission Groveunder the Sixth Amendment; that Plaintiff’s interpretation of the amount as a “deposit” of whichunused portions had to be returned is an unwarranted interpretation; that there is no way to curethe defect without creating a sham pleading; and, that the demurrer should also be sustained asto Defendant, Mission Grove 2013, Inc.Plaintiff, Anton Mission Grove, LLC, opposes the demurrer arguing that its breach of contractaction seeking the unused portion of a deposit for a now defunct project is properly alleged; thatMission Grove’s position that there is only one reasonable interpretation of the Agreement, whichis that it must be an “EIR Payment” rather than an “EIR Deposit” for an unfinished and nowterminated EIR report, is wrong; that the Sixth Amendment does not state that the deposit is a“fee” that must be returned to Defendant; that Plaintiff has alleged that the EIR Deposit is notincluded in the definition of Buyer Entitlement Work Product in the Sixth Amendment; and, at aminimum, whether the EIR Deposit is a deposit and not an EIR Payment is ambiguous.The Reply asserts that the Opposition shows there cannot be a breach of contract cause of action;and re-asserts prior arguments including that there are no allegations as to Defendant, MissionGrove 2013, Inc.Analysis:DEMURRERIn evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it asa whole and all of its parts in their context. (Moore v. Regents of University of California (1990)51 Cal. 3d 120, 125). The court assumes the truth of all material facts which have been properlypleaded, of facts which may be inferred from those expressly pleaded, and of any material factsof which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8Cal. 4th 666, 672). However, a demurrer does not admit contentions, deductions or conclusionsof fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal. 2d 695, 713). Facts appearing inexhibits attached to the complaint will also be accepted as true and, if contrary allegations appearin the complaint, will be given precedence. (Del E. Webb Corp. v. Structural Materials Co. (1981)123 Cal. App. 3d 593, 606). If the complaint fails to state a cause of action, the court must grantthe plaintiff leave to amend if there is a reasonable possibility that the defect can be cured byamendment. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318).1st Cause of Action for Breach of ContractThe elements of a breach of contract are “the contract, plaintiff’s performance or excuse fornonperformance, defendant’s breach, and the resulting damages to plaintiff.” (San Mateo UnionHigh Sch. Dist. v. Cnty. of San Mateo (2013) 213 Cal.4th 418, 439.)Here, the Complaint alleges a contract between Plaintiff/Buyer and Defendant/Seller, MissionGrove Plaza, LP, including the Sixth Amendment. (Compl. ¶¶ 1-2, 9.) Plaintiff/Buyer remitted a$240,570 EIR Deposit to advance anticipated costs for preparation of the EIR by a third-partyconsultant. (Id. ¶ 10.) It is alleged that the remaining balance of the deposition that is not used isrefundable on request. (Ibid.) The deposit was not included in the definition of Buyer EntitlementWork Product in section 6 of the Sixth Amendment. (Id. ¶ 11.) The Complaint alleges that it is abreach of the Agreement for Defendant/Seller to keep the unused portion of the deposit. (Ibid.)Plaintiff alleges it fully performed under the Agreement. (Ibid.) Despite Plaintiff’s demand,Defendant/Seller refused to return the unused portion of the deposit ($145,370) in breach of theAgreement. (Id. ¶¶ 12-13.) Plaintiff seeks damages including attorneys’ fees. (Id. ¶¶ 13-14.)With these factual allegations, Plaintiff has sufficiently alleged the elements of a breach of contractaction. “The sole issue raised by general demurrer is whether the facts pleaded state a validcause of action – not whether they are true. Thus, no matter how unlikely or improbable, plaintiff’sallegations must be accepted as true for the purpose of ruling on the demurrer.” (Weil & Brown,CPG: Civ. Proc. Before Trial (TRG 2024) § 7:44 citing Hacker v. Homeward Residential, Inc.(2018) 26 Cal.App.5th 270, 280.) “If an exhibit is ambiguous and can be construed in the mannerstated in the complaint, the court must accept the construction offered by plaintiff.” (Id. at §7:47.4citing SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 819, 823.)Mission Grove argues that there is only one reasonable interpretation of the Agreement relatingto the purported “deposit” and/or the “EIR Payment” set forth in the Sixth Amendment. It isaccurate that if there is only one reasonable interpretation, the court may sustain the demurrerwithout leave to amend. (Id. at § 7:48.27 citing Baldwin v. AAA Northern Calif., Nevada & UtahIns. Exch. (2016) 1 Cal.App.5th 545, 553.) However, Plaintiff argues that its interpretation isplausible. “If a contract set out in the complaint (or attached as an exhibit) is ambiguous, plaintiff’sinterpretation must be accepted as correct in testing the sufficiently of the complaint: “[A] generaldemurrer to the complaint admits not only the contents of the instrument but also any pleadedmeaning to which the instrument is reasonably susceptible.”” (Id. at § 7:48.25 citing Aragon-Haasv. Family Security Ins. Svcs., Inc. (1991) 231 Cal.App.3d 232, 239 (emphasis added); RutherfordHoldings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 229 [plaintiff who failed to allege itsown “reasonable interpretation” should be given opportunity to amend complaint to do so.])Plaintiff’s interpretation at this stage is a reasonable one. Thus, the demurrer on behalf ofDefendant, Mission Grove Plaza, LP, is overruled.As to Defendant, Mission Grove 2013, Inc., the demurrer correctly points out that the Complaintdoes not allege any conduct by this defendant, which is described only as “GP.” (Compl. ¶ 3.)This Defendant is not specifically referenced in any of the factual allegations. Thus, as to thisDefendant, the demurrer is sustained, but with 21 days leave to amend.Summary: Overrule the demurrer as to Defendant, Mission Grove Plaza, LP. Sustain thedemurrer as to Defendant, Mission Grove 2013, Inc., with 21 days leave to amend.

Ruling

MARTINEZ vs FCA US LLC

Jul 13, 2024 |CVRI2302258

Motion to Compel Further Responses toCVRI2302258 MARTINEZ vs FCA US LLC Request for Production byGUILLERMINA MARTINEZTentative Ruling:Factual / Procedural ContextPlaintiff Guillermina Martinez filed the instant Song-Beverly action regarding a 2021 JeepWrangler that contains engine and transmission defects. The complaint, filed 5/1/23, assertsthree causes of action: (1) violation of Song Beverly Act – breach of express warranty; (2) violationof Song-Beverly Act section 1793.2, and (3) negligent repair. Trial is set for 9/6/24.***Plaintiff now moves to compel further responses to requests for production nos. 28, 30 and 34-35. Plaintiff complains that Defendant served boilerplate objections and the discovery is relevant.Plaintiff requests sanctions of $2,780.Defendants contend they produced all responsive documents for Song-Beverly and there is norelevance. They argue there is no basis for sanctions.Plaintiff contends the information is relevant to determine compliance with Song-Beverly.AnalysisA party may file a motion compelling a further response to requests for production if it finds thatthe responses are inadequate, incomplete, or evasive, or an objection in the response is withoutmerit or too general. (C.C.P., § 2031.310.) Unless notice of the motion is given within 45 daysof the service of the response, or any supplemental response, or on or before any specific laterdate to which the propounding party and the responding party have agreed in writing, thepropounding party waives any right to compel a further response. (C.C.P., § 2030.300(c).)Defendant served verifications on 2/20/24 and the parties agreed to extend the meet and conferdeadline to 4/23/24. (Lopez Decl., Ex. C.) The motion is timely.The parties are required to meet and confer. (C.C.P. § 2030.300(b).) A good faith meet andconfer attempt requires more than just an attempt to persuade the objector of the error of his orher ways, it requires counsel to talk the matter over, compare their views, consult, and deliberate.(Clemente v. Alegre (2009) 177 Cal.App.4th 1277, 1294.) It requires a serious attempt by themoving party to informally resolve each issue with the responses. (Id. at 1293.) Here, the partiessent a letter each. That is insufficient. The meet and confer should be in person, by phone, orsome video format. Mail or email are both inadequate for the meet and confer process.Nevertheless, the court will proceed to the merits.On the merits, in a motion to compel further responses as to document requests, the moving partymust state specific facts demonstrating good cause justifying the discovery sought. (C.C.P., §2031.310(b)(1).) To establish good cause, the moving party must demonstrate relevance andspecific facts justifying discovery. (Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98.) The burdento show good cause for production “is met simply by a fact-specific showing of relevance.” (TbgIns. Servs. Corp. v. Sup. Ct. (2002) 96 Cal.App.4th 443, 448.) Then, the burden shifts for theopposing party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at 98.)No. 28 asks for documents demonstrating policies and procedures regarding requiring aCalifornia consumer to sign a release agreement as part of a pre-litigation repurchase. Plaintiffcontends this is reasonable to determine whether it demonstrates a willful violation of Song-Beverly and cites to Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 471;McKenzie v. Ford Motor Co. (2015) 238 Cal.App.4th 695, 705-708; and Etcheson v. FCA US,LLC (2018) 30 Cal.App.5th 831, 846. All of these cases involve the determination of a rejectionof a C.C.P., § 998 offer was reasonable when there was a release, to determine attorney fees.None of these cases involved whether it was reasonable under the Song-Beverly Act. There isno relevance to these documents. Accordingly, the motion to compel as to No. 28 is denied.No. 30 asks for documents evidencing the rationale of Defendant’s response to the pre-litigationrepurchase request for the subject vehicle, to which Defendant agreed to comply in part toproduce the Customer Assistance Inquiry Records which contained the communications withPlaintiff and otherwise objected. No. 34 asks for the template goodwill pre-litigation repurchaseletter, to which Defendant objected. No. 35 asks for their template pre-litigation repurchase letter.Plaintiff’s arguments merely repeat the same as in no. 28—to demonstrate a release is required.Again, Plaintiff fails to demonstrate a release is improper in a prelitigation repurchase agreement.Since Plaintiff failed to demonstrate good cause, the motion to compel further production ofdocuments No. 30, 34 and 35 is denied.As Plaintiff is not successful on the motion, and Defendant did not request sanctions in opposition,no sanctions should be awarded.

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