Recreation Centers Of Sun City Inc Vs. Wambold

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. DISCUSSION MOTION 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 circumstances 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 circumstances, 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 circumstances 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 circumstances 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

Case Number: 24TRCV01439 Hearing Date: July 10, 2024 Dept: B Superior Court of California County of Los Angeles Southwest District Torrance Dept. B DONALD L. CRAWFORD SR., Plaintiff, Case No.: 24TRCV01439 vs. RULING VERIZON COMMUNICATIONS, INC., et al., Defendant. Hearing Date: July 10, 2024 Moving Parties: Defendant Cellco Partnership dba Verizon Wireless (joinder by Walmart Inc.) Responding Party: Plaintiff Donald L. Crawford Sr. Motion to Compel Arbitration The Court considered the moving papers and joinder, late-filed opposition, and reply papers that was filed before the late-filed opposition. RULING The motion is GRANTED and the case is STAYED. Request for judicial notice by Defendant Cellco Partnership is DENIED. BACKGROUND On August 30, 2024, plaintiff Donald L. Crawford Sr. (self-represented) filed a complaint against defendants Verizon Communications, Inc., Walmart, Inc., and Samsung Electronics of America, Inc. for breach of contract, products liability, and intentional tort. LEGAL AUTHORITY Under CCP § 1281, a written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and revocable, save upon such grounds as exist for the revocation of any contract. Under CCP § 1281.2, On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: . . . (b) Grounds exist for rescission of the agreement. . . . [W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcementeither fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation (see §1281.2(a), (b))that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense. Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal. 4th 394, 413. Petitions to compel arbitration are summary proceedings in which the court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence. Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal. 4th 951, 972. Unlike a ruling on a motion for summary judgment, the Court is charged with resolving any factually disputed issues unless there is no evidentiary support for the claims of the party opposing the petition. Id. at 973. DISCUSSION Defendant Cellco Parnership dba Verizon Wireless (erroneously sued as Verizon Communications, Inc.) requests an order compelling plaintiff to binding arbitration and to stay the proceeding. Defendant Walmart Inc. filed a joinder. In the complaint, plaintiff alleges that on March 15, 2024, plaintiff and defendant Verizon entered into a written contract. Plaintiff transferred his cell phone from Consumer Cellular to Verizon and received a supposedly new Samsung A-15 phone for signing up for the service. The monthly service charge was $65 to be deducted from plaintiffs checking account. Verizon billed plaintiff $287 the first month. The phone was not brand new. It was refurbished from a prior defect. The service was to come with complete customer service. The phone began to malfunction almost immediately. Voicemail could not be set up; the phone jumped to mute or airplane mode without plaintiffs knowledge; and it would shut down for hours citing overheating. It took hours and sometimes days before the phone would come back online. Verizon techs could not fix it and recommended a replacement device. Plaintiff has stilnot received the replacement phone. Plaintiff suffered damages because he had no working phone and was forced to purchase a Tracphone with a different phone number. Plaintiffs business line is disabled as well. Plaintiff was forced to go to a third carrier, Metro PCS by T Mobile. Plaintiff paid for service beginning April 20, 2024, but cannot use the service because Verizon locked the network despite warning from the FCC to release the line to Metro. Existence of an agreement to arbitrate As stated in Cione v. Foresters Equity Services, Inc. (1997) 58 Cal. App. 4th 625, 634 The right to arbitration depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract. There is no public policy favoring arbitration of disputes that the parties have not agreed to arbitrate. Lopez v. Charles Schwab & Co., Inc. (2004) 118 Cal. App. 4th 1224, 1229. Defendant Verizon Wireless argues that plaintiff agreed to resolve this dispute with Verizon Wireless through binding arbitration. Defendant explains that on March 15, 2024, plaintiff opened a Verizon Wireless cellular service account for a mobile phone number ending in -8792. In connection with opening the account, plaintiff executed a Service Summary. Joseph Ninete decl., Exh. A. The Service Summary, which references the Verizon Wireless Customer Agreement, states, in part in bold: I agree to the VZW Customer Agreement (CA), including settlement of disputes by arbitration instead of jury trial, as well as the terms of the plan and optional services I have chosen. I am aware that I can view the CA anytime at verizonwireless.com. It also states on another page: I have read and agree to the Verizon Customer agreement (CA) including settlement of dispute by arbitration instead of a jury trial . . . . Defendant further contends that plaintiff executed an Installment Loan Agreement/Security Agreement (Payment Agreement) with Verizon Wireless for the purchase of a Galaxy A15. Ninete decl., Exh. B. The Payment Agreement incorporates the Customer Agreement by reference, including its arbitration provision. The Payment Agreement also states: Additionally, any disputes under this device payment agreement (including, without limitation, any disputes against the Seller and/or Verizon Wireless) shall be resolved in accordance with the dispute resolution provisions in your Customer Service Agreement . . . which terms are incorporated by reference. Specifically, you and Verizon Wireless (and/or the Seller) both agree to resolve all disputes under this device payment agreement only by arbitration . . . . The Customer Agreement states in part, in bold capitalized letters, You and Verizon both agree to resolve disputes only by arbitration. . . . Ninete decl., Exh. C. In the joinder, defendant Walmart argues that as discussed in length in the moving papers, plaintiffs signed contractual agreement with Verizon Wireless mandates that this claim be resolved in arbitration, and that the agreement clearly states that the seller (in this case Walmart) is equally entitled to arbitration of the agreement and for the state court action to be stayed while arbitration proceeds. See Ninete decl., Exh. B at page 2 (Specifically, you and Verizon Wireless (and/or the Seller) both agree to resolve all disputes under this device payment agreement only by arbitration . . . .). In a late-filed opposition, plaintiff contends that no contract exists between plaintiff and defendants because the documents are false, inaccurate, fraudulent in that said documents have [been] altered and/or photoshopped to appear that plaintiff executed the attached false and fraudulent contract. He does acknowledge finger signing at the store. The Court finds that defendants have met their burden of proving the existence of an arbitration agreement and that there is no evidence that the above agreements are false, inaccurate, fraudulent. Scope Defendants contend that the arbitration provision in the Customer Agreement is broadly worded (Any dispute that in any way relates to or arises out of this Agreement . . . .) and covers plaintiffs claims. The Court agrees. Enforceability Defendant argues that the validity and enforceability of the arbitration provision in the Customer Agreement must be decided by the arbitrator, not the Court, because the arbitration provision contains an express delegation clause. To be enforceable, the delegation clause itself must be clear and unmistakable, and not revocable under state contract defenses such as fraud, duress, or unconscionability. Tiri v. Luck Chances, Inc. (2014) 226 Cal. App. 4 th 231, 242. See also B.D. v. Blizzard Ent., Inc. (2022) 76 Cal. App. 5 th 931, 957 (arbitration agreement clearly and unmistakably delegates question of arbitration to arbitrator by statement that the arbitration has authority to decide all issues of arbitrability). The Court finds that the delegation clause is clear and unmistakable. Plaintiff does not address the delegation clause or dispute it in the opposition. The motion is GRANTED as to the claims against defendants Cellco Partnership dba Verizon Wireless and Walmart Inc. . ORDER The motion is GRANTED. The claims asserted against defendants Cellco Partnership dba Verizon Wireless and Walmart Inc are ordered to arbitration. The case is STAYED. Moving defendant is ordered to give notice of this ruling.

Case Number: 21STCV12444 Hearing Date: July 10, 2024 Dept: 78 Superior Court of California ¿ County of Los Angeles ¿ Department 78 ¿ ¿ ENCINO NEWCASTLE HOMEOWNERS ASSOCIATION , Plaintiff (s) , vs. DEL SOL PROPERTY MANAGEMENT, INC. , et al., Defendant ( s ) . Case No.:¿ 21STCV12444 Hearing Date:¿ July 10 , 2024 [TENTATIVE] ORDER CONTINUING MOTION FOR OSC RE: CONTEMPT On May 15, 2024, defendant/cross-complainant D el Sol Property Management, Inc. ( D el Sol ) filed the instant motion for an OSC Re: Contempt based on non-party HOA Management Professionals, Inc.s (HMP) purported failure to produce business records pursuant to a subpoena issued on December 29, 2023 . T he hearing date is set for July 10, 2024. On May 28, 2024, HMP filed a motion to quash the December 29, 2023 deposition subpoena for production of business records issued by Del Sol . The hearing date is set for August 13, 2024. Considering the relationship between Del Sols motion for contempt, and HMPs motion to quash its underlying basis, the Court finds it in the interest of judicial efficiency and economy to continue Del Sols motion to be heard at the same time as HMPs related motion. Therefore, on its own motion, the Court CONTINUES Del Sols Hearing on Motion for an Order to Show Cause Re: Contempt (CCP 1209) to August 13, 2024 at 8 :30 a .m. in Department 78 of Stanley Mosk Courthouse. Moving Party is ordered to give notice . DATED: July 9 , 2024 __________________________ Hon. Michelle C. Kim Judge of the Superior Court PLEASE TAKE NOTICE: " Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. " If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line SUBMIT followed by the case number. The body of the email must include the hearing date and time, counsels contact information, and the identity of the party submitting . " Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. " If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Case Number: 23AHCV00560 Hearing Date: August 7, 2024 Dept: 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT EBF HOLDINGS, LLC dba EVEREST BUSINESS FUNDING , Plaintiff(s), vs. CORINTHIAN HOSPICE, INC., et al. , Defendant(s). ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 23AHCV00560 [TENTATIVE] ORDER RE: MOTION FOR AN ORDER THAT THE GENUINENESS OF DOCUMENTS AND THE TRUTH OF MATTERS SPECIFIED IN REQUESTS FOR ADMISSION BE DEEMED ADMITTED, AND FOR SANCTIONS AGAINST DEFENDANT CORINTHIAN HOSPICE, INC. Dept. 3 8:30 a.m. July 8, 2024 Plaintiff EBF Holdings, LLC dba Everest Business Funding (Plaintiff) moves for an order deeming admitted the genuineness of documents and truth of matters specified in its First Set of Requests for Admission served on defendant Corinthian Hospice, Inc. (Defendant) on October 16, 2023. The motion is unopposed. Where a party fails to timely respond to a request for admission, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).) The court shall grant a motion to deem admitted requests for admissions, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. (Code Civ. Proc., § 2033.280, subd. (c).) Where a party fails to provide a timely response to requests for admission, [i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion. (Code Civ. Proc., § 2033.280, subd. (c).) The motion is unopposed and there is no dispute that Defendant failed to serve responses to Plaintiffs discovery requests. It also does not appear that Defendant has served substantially compliant proposed responses. Accordingly, the motion is GRANTED. Sanctions are imposed against Defendant in the reduced amount of $385, consisting of .5 hours at Plaintiffs counsels hourly rate and a $60 filing fee, payable within 20 days of the date of this Order. Moving party to give notice. Dated this 9th day of July 2024 William A. Crowfoot Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

GRAVES VS. GENERAL MOTORS, LLC Case Number: 24CV-0203994 Tentative Ruling on Motion to Compel Deposition of General Motors, LLC’s Person(s) Most Qualified with Production of Documents: Plaintiff Jessica Graves (“Plaintiff”) moves to compel Defendant General Motors, LLC (“Defendant” or “GM”) to produce a Person Most Qualified (“PMQ”) in various categories along with document production at a deposition. Meet and Confer. A motion brought under this section must include a declaration describing efforts to meet and confer in good faith. Plaintiff has provided evidence that Plaintiff attempted multiple times to meet and confer to resolve the issues. GM was largely nonresponsive. The Court finds that Plaintiff has made sufficient efforts to meet and confer. Plaintiff’s Evidentiary Objections. Plaintiff makes four objections to the Declaration of Cameron Major filed in support of GM’s Opposition. Each of these objections is overruled. Merits. The scope of discovery is broad. Any matter that is admissible evidence or appears reasonably calculated to lead to the discovery of admissible evidence is relevant and subject to discovery. CCP § 2017.010. Any doubts as to the relevance should generally be resolved in favor of permitting discovery. Colonial Life & Acc. Ins. Co. v. Sup. Ct. (1982) 31 Cal. 3d 785, 790. Boilerplate objections are not proper objections and cannot be used indiscriminately to evade discovery obligations. Korea Data Sys. Co. v. Sup. Ct. (1997) 51 Cal. App. 4th 1513, 1516. This is an action brought under the Song-Beverly Act. Civil Code § 1790 et seq. To succeed on a claim, a plaintiff bears the burden of proving nonconformity of a vehicle that substantially impaired its use, value or safety, the presentation of the vehicle for repair and the failure to repair the nonconformity after a reasonable number of attempts. Ibrahim v. Ford Motor Co. (1989) 214 Cal. App. 3d 878, 886-87. The Act also provides a right of action for a buyer to recover damages and other relief for a breach of the implied warranty of merchantability if the vehicle was sold with a known defect. Civil Code § 1794(a). Further, a buyer may be entitled to a civil penalty of up to two times the actual damages upon a showing that the manufacturer willfully failed to abide by its obligations under Civil Code § 1794(c). Willfulness has been alleged by Plaintiff. If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. CCP § 2025.450(a). Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served. CCP § 2025.410(a). Article 2 consists of CCP §§ 2025.210-2025.290. These sections cover procedural issues within the notice and deposition process such as where, when, how, and under what manner a deposition can be conducted. None refer to objections regarding the substance of the information sought. None of the objections made by GM relate to the procedural aspects of the deposition notice. While GM objects that the deposition was set unilaterally, it does not actually state that GM or its counsel was unavailable and GM did not suggest any other date for the deposition. In order to address the substance of the deposition notice, GM should have moved for a protective order instead of serving objections and not appearing at the deposition. The objections made by GM do not constitute valid objections under CCP § 2025.410(a). Therefore, GM failed to appear for examination and failed to produce for inspection a document. Plaintiffs are thus able to bring this motion pursuant to CCP § 2025.450. A motion under subdivision (a) shall comply with both of the following: (1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. CCP § 2025.450(b) . Categories 1-4 and 6. Each of these relate specifically to the Subject Vehicle. Categories 1 and 2 seek a PMQ to testify regarding why GM did not repurchase or replace the Subject Vehicle and why the subject vehicle has yet to be repaired or replaced. GM’s reasoning for not repairing or repurchasing the subject vehicle is clearly relevant and discoverable. In Categories 3 and 4, Plaintiff is also seeking a PMQ to testify regarding the nature and extent of all the service history, warranty history, and repairs relating to the Subject Vehicle and communications GM has with anyone other than counsel regarding the Subject Vehicle. Again, this information is clearly relevant and subject to discovery. Category 6 seeks a PMQ for any investigation conducted by GM to determine if the Subject Vehicle qualified for repurchase or replacement prior to the date Plaintiffs filed the lawsuit. This is again clearly relevant. Plaintiff has alleged a willful violation, thereby making relevant GM’s investigation and reason for denying a repair or replacement. None of the objections raised by GM are meritorious. All objections to these categories are overruled and GM shall produce a PMQ for Categories 1-4 and 6. Category 5. This category seeks a PMQ to answer questions regarding GM’s policies and procedures for complying with the lemon law. This category does not seek confidential, proprietary or trade secret information. The steps that GM takes to comply with the Song-Beverly Consumer Warranty Act are discoverable, especially in a case such as this, where Plaintiff has alleged that GM was willful in its violation. All objections are overruled and GM shall produce a PMQ for Category 5. Category 7. This category seeks a PMQ to answer questions relating to warranty nonconformities complained of by Plaintiff or made on behalf by Plaintiff. Warranty nonconformities complained of by Plaintiff are the nonconformities specifically relating to the Subject Vehicle. With this understanding, all objections are overruled and GM shall produce a PMQ for questions relating to warranty nonconformities alleged as to the subject vehicle. Requests 1-2, 4, 7-8, and 10. These requests relate specifically to the Subject Vehicle including the specific repairs made or attempted and who was involved in these repairs or repair attempts. Good cause exists for each of these requests and GM shall produce records responsive to these requests. Requests 3, 5, and 9. These requests seek GM’s California lemon law policy and procedure manual(s) used by GM dealers or authorized customer service representatives, GM’s lemon law policy and procedure manual, and writings provided to GM customer service representatives which refer, reflect or relate to rules, policies or procedures concerning the issuance of vehicle purchase refunds or replacements pursuant to Song-Beverly. This is all relevant information. No showing has been made that this production would be unduly burdensome. This is not trade secret information. GM stated that they would be filing a motion for a protective order. No such motion has been filed. Good cause exists for each of these requests and GM shall produce records responsive to these requests. Request 6. This request seeks records of GM’s TSB Index and any TSBs that relate to the warranty conformity alleges in this case. Good cause exists for each of these requests and GM shall produce records responsive to these requests. Sanctions. Plaintiffs move for monetary sanctions in the amount of $2,625. If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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 circumstances make the imposition of the sanction unjust. CCP § 2025.450(g)(1). The Court does not find that GM acted with substantial justification or that other circumstances make the imposition of a sanction unjust. Plaintiffs have presented evidence that seven hours of attorney time were incurred, and that Plaintiff’s counsel bills at $375.00 per hour. The Court finds monetary sanctions in the amount of $2,625.00 to be reasonable. The motion is GRANTED as outline above. Monetary sanctions are awarded to Plaintiff in the amount of $2,625.00. The parties are ordered to meet and confer regarding a mutually agreeable date for deposition(s). The deposition(s) shall take place within thirty (30) days of service of the Notice of Entry of Order. Sanctions shall be paid within (30) days of service of the Notice of Entry of Order. Plaintiff provided a proposed Order that will be modified to reflect the Court’s ruling.

Case Number: 22STCV02823 Hearing Date: July 10, 2024 Dept: 52 Plaintiff Maneesh Bansals Motion to Disqualify Counsel Plaintiff Maneesh Bansal, M.D. moves to disqualify Michael W. Caspino and Forward Counsel LLP from representing defendants Arunpal Sehgal, M.D. and Paramjot Mann, M.D. Plaintiff contends Forward Counsel LLP must be automatically disqualified due to simultaneous adverse representation. Generally, there is a per se rule requiring disqualification of an attorney or a law firm when there is a conflict of interest based upon concurrent representation of multiple clients. [Citations.] This is the case irrespective of whether the representation of one client has anything to do with the representation of the other client. ( MGuinness v. Johnson (2015) 243 Cal.App.4th 602, 625.) Plaintiff does not show Forward Counsel simultaneously represents adverse clients. Forward Counsel currently represents Shelby Hospitality, LLC (Shelby) in another action (the Shelby Litigation). (Bansal Decl., ¶ 6.) Plaintiff is one of three managing members of Shelby. ( Id. , ¶¶ 3-4.) Shelby has nine members: one LLC and eight individuals, including plaintiff. ( Id. , ¶ 4.) Shelbys operating agreement provides that, when it was executed in 2018, the LLC and five of the eight individuals had 10% membership interests, Bansal and two other individuals had an 11.1% interest, and the final member had a 16.67% interest. ( Id. , Ex. A, p. 13.) Representing Shelby does not mean Forward Counsel represents plaintiff himself. Generally, when representing a corporation, an attorneys client is the corporate entity, not individual shareholders or directors, and the individual shareholders or directors cannot presume that corporate counsel is protecting their interests. [Citation.] An attorney representing a corporation does not become the representative of its stockholders merely because the attorneys actions on behalf of the corporation also benefit the stockholders; as attorney for the corporation, counsels first duty is to the corporation. ( Sprengel v. Zbylut (2019) 40 Cal.App.5th 1028, 1042 ( Sprengel ).) Representing an entity, however, may create an implied attorney-client relationship with its individual owners. ( Sprengel, supra , 40 Cal.App.5th at p. 1043.) When assessing the existence of an implied attorney-client relationship between a corporate attorney and the entitys individual members, the key inquiry is whether the totality of the circumstances implies an agreement that the corporate attorney will not act adversely to the individual shareholders interests with respect to the issues in dispute. ( Id. at p. 1047 .) The court must assess whether the parties conducted themselves in a way that would reasonably cause a shareholder to believe the attorney would protect the shareholders individual interests. ( Ibid. ) When determining this issue, courts consider factors including [t]he type and size of the entity, the nature and scope of the attorneys engagement, [t]he kind and extent of contacts, if any, between the attorney and the individual owner, and the attorneys access to information (e.g., partnership financial information) relating to the individual. ( Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1733 ( Responsible Citizens ).) The evidence in the record does not show that, under the totality of the circumstances, plaintiff reasonably believed Forward Counsel would protect his individual interests. The type and size of Shelby Hospitality, LLC do not support that conclusion. One primary purpose of a limited liability company is to limit the individual members liability for the companys debts. An LLCs debts or liabilities are solely the debts, obligations, or other liabilities of the limited liability company (Corp. Code, § 17703.04(a)(1)) and do not become the debts, obligations, or other liabilities of a member or manager solely by reason of the member acting as a member or manager acting as a manager for the limited liability company ( id. , subd. (a)(2)). Shelby has nine members. (Bansal Decl., ¶ 4.) Plaintiff does not identify his current membership interest in Shelby, but he owned 11.1% of the company when it was formed. ( Id. , Ex. A, p. 13.) In contrast, in Responsible Citizens , the individual moving for disqualification was one of two partners in a general partnership. ( Responsible Citizens, supra, 16 Cal.App.4th at p. 1722 [remanding issue to trial court]) In Sprengel , the individual was one of two members who each owned 50 percent of a limited liability company. ( Sprengel, supra, 40 Cal.App.5th at p. 1033 [affirming summary judgment of malpractice action].) Plaintiffs interest in Shelby is far smaller. The nature and scope of the engagement also do not support the finding that Forward Counsel represents Bansal. Shelby operates a hotel. (Bansal Decl., ¶ 3.) Forward Counsel is defending Shelby in an action by a corporation that unsuccessfully tried to purchase the hotel property before Shelby purchased 83.33% of it. ( Id. , Ex. B, Complaint in Bhuvneshwari Corp. v. Ken Pansurai, et al. , ¶¶ 16-31.) The retainer agreement between Forward Counsel and Shelby states the Engagement is only for the persons or entities identified in the incorporated Letter Agreement which only lists Shelby (along with nonparties Fine Hospitality and Eurocan) and does not mention Bansal. (Caspino Decl., ¶ 9.) It further provides, Unless expressly agreed in writing, the Firm is not undertaking the representation of any related or affiliated person or entity& nor any of your or their officers, directors, shareholders, managers, members, agents, partners, or employees. ( Ibid. ) Nothing about the nature and scope of the representation involves plaintiffs individual interests. It only impacts him incidentally as a member of the LLC. Plaintiff largely relies on the fact that Forward Counsel planned to prepare him for his deposition in the action against Shelby (before the deposition was postponed). (Bansal Decl., ¶¶ 12-14.) Preparing a witness for a deposition does not constitute personally representing the witness. Moreover, the email asking to prepare Bansal for his deposition was sent to five individual members of Shelby about their depositions. ( Id. , Ex. D.) Each deposition was scheduled for two hours. ( Ibid. ) Forward Counsel asked to have a short call with each witness only one to three days before their depositions and stated [e]ach call should not take more than 15-20 minutes. ( Ibid .) This email shows Forward Counsels plan to prepare plaintiff to testify at deposition was no different from how it treated four other members. A brief phone call to prepare for an unusually short deposition does not demonstrate any personal attorney-client relationship. Nothing in the circumstances would cause a reasonable person in plaintiffs shoes to believe Forward Counsel represents his personal interests. The only factor supporting a finding of concurrent adverse representation is the kind and extent of contacts between plaintiff and Forward Counsel. Plaintiff states he had at least four phone calls and videoconferences with Mr. Caspino (Bansal Decl., ¶ 9), and he exchanged at least 68 emails with Forward Counsel ( id. , ¶ 11). Plaintiff, however, explains the reason for having extensive communication with Forward Counsel. He states, I was elected by the non-interested members of Shelby (i.e., those without a personal interest in the Shelby Litigation) to represent their interests and deal with Forward Counsel and Mr. Caspino on their behalf. I am currently the only manager of Shelby that can make decisions for the entity without consideration of the needs and desires of the other two defendants, given that Gaurang Patel owns one of the named defendants and Nishant Karod is the business partner of another named defendant. I am the only manager or member of Shelby who has interacted with Forward Counsel on behalf of the non-interested members. ( Id. , ¶ 7.) He thus acknowledges he does not have a personal interest in the Shelby Litigation and interacts with Forward Counsel in his capacity as Shelbys managing member on behalf of Shelby and, in particular, the other non-interested members of Shelby. Except for being one of the three managing members, his relationship with Forward Counsel is the same as all the other individuals who own Shelby. None of these individuals, including Bansal, are parties in the Shelby Litigation and Forward Counsel does not represent them. Plaintiff also states he asked Caspino a personal legal question and requested advice on an issue personal to me in January 2023. (Bansal Decl., ¶ 12.) He did not explain the nature of the legal issue. Defendants show it was not personal. After the opposing counsel cancelled plaintiffs deposition, plaintiff wrote, Can we seek sanctions for this behavior. Scheduling a deposition takes time and planning. I have to reschedule my patients in clinic and cant switch schedules so capriciously. (Caspino Decl., ¶ 3, Ex. 1.) Caspino replied, Absolutely. I am setting him up for this right now. ( Ibid. ) These emails involve at most a modicum of legal advice. The issue was plaintiffs frustration about how the litigation impacted his schedule as a practicing physician. Any witness, regardless of their relationship with Shelby or Forward Counsel, in plaintiffs shoes might share such frustration. And, as defendants argue, any sanctions would be paid to Shelby, not plaintiff, who is not a party to that action. Plaintiff does not identify any information relating to his individual interests that Forward Counsel can access. Under the circumstances, any information Forward Counsel has about Shelby only incidentally relates to plaintiff based on his status as one of its nine members. The totality of the circumstances does not imply an agreement that Forward Counsel would not act adversely to plaintiffs individual interests. Plaintiff states, I viewed Forward Counsel as my trusted lawyers. Forward Counsel has never communicated to me that it does not represent me or my interests. (Bansal Decl., ¶ 17.) His view was not reasonable under the totality of the circumstances. And Forward Counsel did expressly communicate that it does not represent him or his interests. It did so via the retainer agreement that serves as the basis for its relationship with Shelby (and therefore any resulting relationship with plaintiff). (Caspino Decl., ¶ 9.) That Bansal purportedly never saw a copy of the agreement until recently (Bansal Decl., ¶ 8) does not excuse him. An objectively reasonable member of Shelby Hospitality LLC would expect that the written contract between Shelby and Forward Counsel governs their relationship. Disposition Plaintiff Maneesh Bansal, M.D.s motion to disqualify counsel is denied . Defendants Arunpal Sehgal and Paramjot Manns Motion to Compel Arbitration Defendants/cross-complainants Arunpal Sehgal, M.D. and Paramjot Mann, M.D. move to compel arbitration of the entire action. A court may deny a motion to compel arbitration when [t]he right to compel arbitration has been waived. (CCP § 1281.2(a).) Defendants waived any right to compel arbitration of this action. [M]erely participating in litigation, by itself, does not result in a waiver. ( St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1203 ( St. Agnes ).) When determining waiver, courts consider factors including (1) whether the partys actions are inconsistent with the right to arbitrate; (2) whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place. ( Id. at p. 1196, internal quotes omitted.) Defendants actions have been wholly inconsistent with the right to arbitrate. Before plaintiff filed this action, Bansal brought a demand for arbitration with JAMS against Sehgal in September 2021. (Beatty Decl., ¶ 2, Ex. A.) Rather than pursuing his counterclaims before JAMS, Sehgal demurred to the demand for arbitration on the basis that Bansals claim was not subject to arbitration. ( Id. , ¶ 3, Ex. B.) Before a ruling on the demurrer, the parties met and conferred and reached an agreement whereby Bansal agreed to voluntarily dismiss his Demand for Arbitration without prejudice and refile his claims in state court. ( Id. , ¶ 4.) Resisting arbitration and agreeing to proceed in court is a paradigmatic example of acts inconsistent with the right to arbitrate. Defendants conduct in this litigation has also been inconsistent with arbitration. They first appeared in this action by filing a case management statement on April 5, 2022. Defendants offer no explanation for not seeking to compel arbitration of this action until December 2023. Until filing this motion, defendants never indicated an intent to arbitrate. In their initial case management statement, defendants did not check the box indicating they were willing to arbitrate. (Apr. 5, 2022 Case Management Statement, ¶ 10.c(5).) Neither their demurrer to the initial complaint (Beatty Decl., Ex. E), answer to the first amended complaint ( id. , Ex. F), initial cross-complaint ( id. Ex. G), first amended cross-complaint ( id. , Ex. H), nor second amended cross-complaint ( id. , Ex. I) assert any demand to arbitrate. Defendants now argue, for the first time, the action is subject to arbitration. They seek to justify their change in position by arguing that plaintiffs initial demand for arbitration was different than plaintiffs operative complaint. But defendants initial cross-complaint alleges, Bansal initially filed a demand for arbitration asserting similar claims against Cross-Defendants as he alleges in this action. Cross-Complainant objected to arbitration. (Beatty Decl. . , Ex. G, ¶ 20.) Defendants substantially invoked the litigation machinery. Together, the two defendants have served three sets of Requests for Production of Documents (totaling 190 requests), two sets of Special Interrogatories (totaling 81 special interrogatories), two sets of Form Interrogatories, and two sets of Requests for Admission (totaling 43 requests). (Beatty Decl., ¶ 10, Exs. J-R.) They filed three motions to compel compliance with requests for production. ( Id. , ¶ 11, Exs. S & T.) In response to defendants requests for production, Bansal produced almost one million pages of documents. ( Id. , ¶ 12.) Furthermore, plaintiffs counsel states, Bansal has incurred more than $300,000 in attorneys fees in litigating this matter. ( Id. , ¶ 15.) The parties are well into preparation for the trial scheduled for July 28, 2025. Defendants also filed a cross-complaint (and two amended cross-complaints) without asking to stay this action. Plaintiff demonstrates that defendants delay has substantially prejudiced him. [C]ourts assess prejudice with the recognition that Californias arbitration statutes reflect a strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution and are intended to encourage persons who wish to avoid delays incident to a civil action to obtain an adjustment of their differences by a tribunal of their own choosing. [Citation.] Prejudice typically is found only where the petitioning partys conduct has substantially undermined this important public policy or substantially impaired the other sides ability to take advantage of the benefits and efficiencies of arbitration. ( St. Agnes, supra, 31 Cal.4th at p. 1204.) Such prejudice has occurred here. Beginning arbitration over two years after this action has been at issue and after extensive discovery, multiple discovery motions, and several demurrers would not be speedy or inexpensive. After considering all relevant factors, the court finds defendants waived any right to compel arbitration of this action. Plaintiff also argues defendants are judicially estopped from moving to compel arbitration. The court does not reach the issue. Disposition Defendants/cross-complainants Arunpal Sehgal, M.D. and Paramjot Mann, M.D.s motion to compel arbitration is denied .

Case Number: 21NWCV00400 Hearing Date: July 9, 2024 Dept: C The Windmill Co. Inc. vs. Fayek Sedrak, et al. Case No.: 21NWCV00400 Hearing Date: July 9, 2024 #1 Tentative Ruling I. Defendant O&C Hillsides Motion for Sanctions is MOOT. II. Defendant Sedraks Motin for Sanctions is DENIED. Plaintiff to give notice. Background On June 21, 2021, Plaintiff, The Windmill Co., Inc., (Plaintiff) filed an action against Defendants Fayez Sedrak (Sedrak) and O&C Hillside Resources Management Co. (O&C Hillside), alleging Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, and Declaratory Relief. In a First Amended Complaint filed on February 6, 2023 (FAC) Plaintiff alleged that on January 3, 2020, Plaintiff entered into a Sale of Business agreement with O&C Hillside to purchase the business known as ARCO AM PM 6545 located at 13550 Beach Blvd, La Mirada, CA, for $1,590,000.00. The parties opened an Escrow at Ace Escrow where they each signed mutual escrow instructions and Plaintiff deposited $30,000 into Escrow. (Id., ¶¶ 8-9; Benge Decl. in support of MSJ, Exhibit 1.) Escrow was to close in 90 days. (Benge Decl. in support of MSJ, Exhibit 2.) The original escrow for the purchase of the Arco AM/PM was signed on January 3, 2020. The original purchase price was $1,590,000.00. (Benge Decl. in support of MSJ ¶¶ 3-4; Exhibits 1-2.) However, during the first escrow period several problems arose, including the necessity by Tesoro (the franchisor) to elect not to exercise their right of first refusal, the Landlords unwillingness to sign the assignment and assumption of ground lease, and problems with a Hydrogen facility. (Sedrak Decl. in Support of MSJ ¶¶ 9, 14, 24; Benge Decl. in support of MSJ ¶¶ 10, 17.) During this period, Plaintiff obtained a loan approval note dated October 1, 2020, for $1,110,000.00. (Mashney Decl. in Opposition of MSJ, Exhibit 9.) For those reasons an amended escrow agreement was signed on January 21, 2021. Those instructions stated that escrow was to close within ninety days. (Benge Decl. in Support of MSJ, Exhibit 3.) The amended agreement called for a promissory note for $150,000.00 with an interest rate of 0% per annum for eight years. In addition, the Escrow Amendment changed the purchase price to $1,940,000.00. (Benge Decl. in Support of MSJ, Exhibit 3.) During this time, Plaintiff did not deposit funds into escrow as required by the amended escrow agreement or obtain a loan. However, on March 22, 2021, Defendant Sedrak emailed an Ace Escrow account for an agent named Debbie to cancel escrow. (Mashney Decl. in Opposition of MSJ, Ex. 16.) This cancellation occurred 30 days prior to the close of 90-day window. On May 25, 2021, Plaintiff sent a demand for specific performance as to all Defendants, which went unanswered. (Mashney Decl. in Opposition of MSJ, Exhibit 17.) On June 21, 2021, Plaintiff, the Windmill Co., Inc., filed an action against Fayez Sedrak and O&C Hillside Resources Management Co., alleging Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, and Declaratory Relief. (See Complaint.) On August 1, 2021, Defendants emailed a Notice of Default and Second Demand and Notice to Perform Escrow, which gave only five days to deposit the funds. (Mashney Decl. in Opposition of MSJ, Exhibit 18.) On August 4, 2021, Plaintiff sent the second demand for specific performance. (Mashney Decl. in Opposition of MSJ, Exhibit 20.) On October 7, 2021, Plaintiff obtained a second loan approval note for $1,940,000.00. (Mashney Decl. in Opposition of MSJ, Exhibit 21.) Plaintiff claims that Defendant O&C Hillside did not sign a 4506T form that Defendant claims is necessary for the loan to be processed. On January 8, 2024, Defendants filed the two instant Motions for Sanctions based on CCP § 128.5 and 128.7. Discussion Code of Civil Procedure section 128.5, subdivision (a), provides that [a] trial court may order a party, the partys attorney, or both, to pay the reasonable expenses, including attorneys fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. Frivolous refers to an action that is totally and complete without merit or for the sole purpose of harassing an opposing party. (Code Civ. Proc., § 128.5, subd. (b)(2).) Whether an action is frivolous is governed by an objective standard; a suit indisputably has no merit only where any reasonable attorney would agree that the action is totally and completely without merit. ( Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 12, quotation marks omitted.) There must also be a showing of subjective bad faith on the part of the attorney or party to be sanctioned. ( Campbell v. Cal-Gard Surety Services, Inc. (1998) 62 Cal.App.4th 563, 574 ( Campbell ).) Section 128.7 states that [b]y presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. (Code of Civ. Proc., § 128.7, subds. (b)(1)-(4).) Defendant O&C Hillside Defendant O&C Hillside concedes that the Courts finding of the presence of a material issue of fact precludes sanctions under sections 128.5 and 128.7. As a result, the Motion for Sanctions filed by O&C Hillside has become moot. (Reply in Support of Sanctions, filed on May 15, 2024, p. 1:22-24.) Accordingly, the Motion for Sanctions filed by Defendant O&C Hillside is MOOT. Defendant Sedrak Sedrak contends that P laintiff and its Counsel have knowingly maintained an action which does not exist against Sedrak, and which has no basis in fact or law. The Court disagrees. In Opposition to Sedraks motion for summary judgment, Plaintiff presented evidence from Sedraks deposition that he is everything at O&C Hillside, he holds all corporate titles, and makes all the major decisions. (1/29/24 Order Granting Sedraks Motion for Summary Judgment.) The Court ruled in favor of Sedrak because Plaintiff failed to produce evidence of fraudulent behavior, commingling of funds, or any other conduct that establishes alter ego liability. However, failure to produce evidence does not mean such evidence does not exist. At the hearing, Plaintiff requested a continuance because O&C Hillside had not provided financial documents that could establish commingling. The Court denied the request because it was untimely, not because evidence of commingling did not exist. Under these circumstances, the Court cannot determine that Plaintiff maintained its lawsuit against Sedrak in bad faith. Sedrak contends that a reasonable investigation would have revealed the absence of any cause of action for violation of the Covenant of Good Faith and Fair Dealing and the non-existence of a Declaratory Relief claim. Sedrak further maintains that the Breach of Contract claim is objectively frivolous because Plaintiff had no loan commitment, signed an escrow on January 21, 2021, waiving all prior claims of any default, and it failed to perform the Escrow Contract within 90 days as provided for in the Escrow. As to the second cause of action for Violation of the Covenant of Good Faith and Fair Dealing, the Court finds that this cause of action was not alleged in bad faith because Plaintiff presented evidence in Opposition to the Motion for Summary Judgment that, among other things, Sedrak emailed Ace Escrow to cancel escrow 30 days prior to the end of the 90-day escrow period closing. (Opposition to MSJ, Mashney Decl., Ex. 16.) The Court found that Plaintiff had raised a triable issue of material fact as to whether this prevented Plaintiff from satisfying its obligations. (1/29/24 Order denying O&C Hillsides Motion for Summary Adjudication of the second cause of action.) As to the third cause of action for Declaratory Relief, the Court denied the motion for summary adjudication, reasoning that it had denied relief as to the breach of contract cause of action and if, after a trial, the court decides to uphold the agreement and order specific performance, there will be a future relationship between the parties. Since an actual controversy has been established, declaratory relief would be required to preserve the rights and obligations of both parties. (1/29/24 Order denying O&C Hillsides Motion for Summary Adjudication of the first and third causes of action.) Accordingly, Defendant Sedraks Motion for Sanctions under CCP §§ 128.5 and 128.7 is DENIED.

Case Number: 23STCV28011 Hearing Date: July 11, 2024 Dept: 49 Daniel Im v. Allen Abraham, et al. MOTION TO BE RELIEVED AS COUNSEL FOR DEFENDANTS CRAFTSCAPE CREATIONS, LLC, CRAFTSCAPE CREATIONS, INC., AND CRAFTSCAPE DESIGNS, LLC MOVING PARTY: Jilbert Tahmazian (counsel for Defendants Craftscape Creations, LLC, Craftscape Creations, Inc., and Craftscape Designs, LLC RESPONDING PARTY(S): None STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: Daniel Im alleges he contracted with Defendant Craftscape Creations, Inc., for a landscaping project at his home. Plaintiff alleges Defendants demanded payments yet purposely delayed work. Plaintiff alleges he paid Defendant or related entities approximately $208,919.00 and that Defendants have completed none of the work they contracted to complete. Jilbert Tahmazian now moves to be relieved as counsel for the Craftscape Defendants. No opposition was filed. TENTATIVE RULING: Counsels Motion to be Relieved as Counsel is GRANTED on the condition that Counsel submit an Order (Form MC-053) which indicates that the next hearing will be an OSC re: Striking of Answer on 8/14/24 at 8:30 a.m. IF THE ENTITY DEFENDANTS DO NOT HAVE A NEW ATTORNEY OF RECORD BY THAT DATE, THEIR ANSWERS MAY BE STRICKEN. Moving counsel is ordered to give notice of this Ruling, as well as the mandatory Order. DISCUSSION: Motion to be Relieved as Counsel A. Legal Standard For a motion to be relieved as counsel under CCP section 284, subdivision¿(2), California Rules of Court rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under CCP section 284(2) is brought instead of filing a consent under CCP section¿284(1) (made on the Declaration in Support of Attorneys Motion to Be Relieved as Counsel Civil form (MC-052)); (3) service of the notice of motion and motion, declaration, and proposed order on the client and on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorneys Motion to be Relieved as Counsel Civil form (MC-053)).¿ (Cal. Rules of Court, rule 3.1362.)¿ The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no undue prejudice to the client and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.) B. Analysis Counsel filed Civil forms MC-051, MC-052, and MC-053 on May 15, 2024. Counsel served the moving papers on Defendants Craftscape Creations, LLC, and Craftscape Designs, LLC, by mail at 21800 Oxnard Street, Suite 640, Woodland Hills, CA 91367. (See Proof of Service.) Counsel states that it confirmed by conversation within the last 30 days that the address is current. (See MC-052, ¶ 3.) In support of withdrawal, Counsel attests that the Defendants have failed to make payments for legal fees required under the attorney employment agreement. (MC-052 ¶ 2.) As a result, representation is no longer sustainable and will result in a hardship on the firm. (Id.) Here, there is no opposition to the motion, and there is no evidence Defendants will be unduly prejudiced if Counsel is relieved at this time. IT IS SO ORDERED. Dated: July 11, 2024 ___________________________________ Randolph M. Hammock Judge of the Superior Court FN 1 - Defendant Craftscape Creations, Inc., is not listed on the Proof of Service. However, because the three entities apparently share a common Chief Executive Officer (Allen Abraham), the court considers service on the other two Craftscape entities to have satisfied the service requirements for all three.