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in Sevier County
Ruling
202100556158CUBT GI Industries vs. Arakelian Enterprises
Jul 25, 2024 |
Matthew P. Guasco
|
Motion to Stay the Taking of Depositions and Quash The Deposition Notices of Michael Arakelian and Ron Arakelian Jr and for a Protective Order |
202100556158CUBT
SUPERIOR COURT OF CALIFORNIA
COUNTY OF VENTURA
Tentative Ruling
202100556158CUBT: GI Industries vs. Arakelian Enterprises
07/25/2024 in Department 20
Motion to Stay the Taking of Depositions and Quash The Deposition Notices of Michael
Arakelian and Ron Arakelian Jr and for a Protective Order
Notice Regarding Courtroom 20 Law & Motion Procedures: The law and motion calendar in
Courtroom 20 before Judge Matthew P. Guasco starts between 8:30 and 8:45 a.m. Ex parte
applications will be heard at the same time as matters on the law and motion calendar. Parties
appearing by Court Call must check in with the Judicial Assistant by 8:10 a.m. No notice of
intent to appear is required. Parties wishing to submit on the tentative decision must so notify
the Court by e-mail at Courtroom20@ventura.courts.ca.gov. Do not call in lieu of sending an
e-mail. If a party submits on the tentative decision without appearing, but another party appears,
the hearing will be conducted in the absence of the non-appearing party. Effective February 13,
2018, all cases assigned to Courtroom 20 are assigned for all purposes (including trial) to Judge
Guasco.
REMOTE APPEARANCES: Judge Guasco invites attorneys, self-represented parties, and
parties to appear remotely via Court Call or Zoom for all law and motion, case management
conference, trial setting conferences, and status hearings. You may contact Court Call as
follows: www.courtcall.com or call 888-882-6878. It is the Court’s understanding that Court
Call will waive its fee as to parties who have obtained a fee waiver from the Court. The Court
will not accept any Court Call reservations submitted later than 4:00 p.m. the court day before
the scheduled hearing. Court Call reservations are not accepted on Court Furlough Days or Court
Holidays. Judge Guasco’s instructions and rules, as well as the link, for Zoom appearances are
located at
http://www.ventura.courts.ca.gov/covid19/Courtroom20_Zoom-Appearance_Flyer_2022.pdf.
PLEASE NOTE: All those appearing by Zoom must follow Judge Guasco’s conduct orders
which can be found at http://www.ventura.courts.ca.gov/Courtroom/C20.
The following is the Court’s tentative decision concerning the motion of defendant, Arakelian
Enterprises, Inc., d/b/a Athens Enterprises (“Athens”), to stay the taking of depositions an quash
the deposition notices of Michael Arakelian and Ron Arakelian, Jr., and for a protective order, in
this action by plaintiff, G.I. Industries d/b/a Waste Management (“WM”):
For the following reasons, the Court DENIES Athens’s motion:
(1) “California law provides parties with expansive discovery rights.” (Lopez v. Watchtower
Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 590.) “Unless otherwise
limited” by a court order, “any party may obtain discovery regarding any matter, not privileged,
that is relevant to the subject matter involved in the pending action ... , if the matter either is
itself admissible in evidence or appears reasonably calculated to lead to the discovery of
admissible evidence.” (CCP § 2017.010.)
202100556158CUBT: GI Industries vs. Arakelian Enterprises
(2) Athens brings this motion pursuant to Code of Civil Procedure section 2025.410, which
provides in pertinent part as follows:
“(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.
“(b) If an objection is made three calendar days before the deposition date, the
objecting party shall make personal service of that objection pursuant to Section
1011 on the party who gave notice of the deposition. Any deposition taken after
the service of a written objection shall not be used against the objecting party
under Section 2025.620 if the party did not attend the deposition and if the court
determines that the objection was a valid one.
“(c) In addition to serving this written objection, a party may also move for an
order staying the taking of the deposition and quashing the deposition notice. This
motion shall be accompanied by a meet and confer declaration under Section
2016.040. The taking of the deposition is stayed pending the determination of this
motion.”
(3) Athens also moves for a protective order pursuant to Code of Civil Procedure section
2025.420, which provides in pertinent part as follows:
“(a) 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.
“(b) 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. This protective order may include, but is not limited to, one or more of
the following directions:
(1) That the deposition not be taken at all. ...
(5) That the deposition be taken only on certain specified terms and conditions.
...
(9) That certain matters not be inquired into.
(10) That the scope of the examination be limited to certain matters. ...
202100556158CUBT: GI Industries vs. Arakelian Enterprises
(g) If the motion for a protective order is denied in whole or in part, the court may
order that the deponent provide or permit the discovery against which protection
was sought on those terms and conditions that are just.”
(4) Here, Athens objected and has moved for an order staying the taking of the depositions and
quashing the deposition notices directed to Micheal Arakelian and Ron Arakelian, Jr., as well as
for a protective order. The parties fulfilled their duties to meet and confer in good faith to avoid
this motion. The Court finds the parties have a legitimate disagreement about whether the
depositions of these two board members and officers of Athens should be deposed.
(5) The depositions at issue here clearly involve “apex” corporate officers: Michael Arakelian
and Ron Arakelian, Jr. As such, the following sets forth the law governing resolution of the
instant motion:
“Consistent with these federal decisions, we hold that when a plaintiff seeks to
depose a corporate president or other official at the highest level of corporate
management, and that official moves for a protective order to prohibit the
deposition, the trial court should first determine whether the plaintiff has shown
good cause that the official has unique or superior personal knowledge of
discoverable information. If not, as will presumably often be the case in the
instance of a large national or international corporation, the trial court should
issue the protective order and first require the plaintiff to obtain the necessary
discovery through less intrusive methods. These would include interrogatories
directed to the high-level official to explore the state of his or her knowledge or
involvement in plaintiff's case; the deposition of lower level employees with
appropriate knowledge and involvement in the subject matter of the litigation; and
the organizational deposition of the corporation itself, which will require the
corporation to produce for deposition the most qualified officer or employee to
testify on its behalf as to the specified matters to be raised at the deposition. (§
2025, subd. (d)(6).) Should these avenues be exhausted, and the plaintiff make a
colorable showing of good cause that the high-level official possesses necessary
information to the case, the trial court may then lift the protective order and allow
the deposition to proceed.”
(Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1289.)
(6) “A protective order prohibiting the deposition of a corporate president may be granted where
it is shown the corporate president lacks knowledge or involvement in the litigation, and such
deposition is being sought prior to plaintiff's exhaustion of less intrusive means of discovery.
Such “high level” (or “apex”) depositions “raise a tremendous potential for discovery abuse and
harassment.” (Id., 10 Cal. App.4th at pp. 1287-1288.) Thus, in order to show good cause for the
deposition of an apex officer, a plaintiff must show: (1) that the officer has unique or superior
personal knowledge of discoverable information; and (2) that plaintiff has exhausted all
less-intrusive avenues of discovery.
(7) The Court finds that WM has provided a reasonable factual basis to conclude that board
members and officers Micheal Arakelian and Ron Arakelian, Jr. have the requisite personal
202100556158CUBT: GI Industries vs. Arakelian Enterprises
knowledge of relevant discoverable information and that WM exhausted less intrusive discovery
methods. The depositions appear warranted based upon the direct personal factual information
these two board members/officers likely possess concerning the primary material issue in this
action: the alleged improper purpose of Athens in approving the below-cost bid which secured
the Franchise Agreement for waste disposal services in the City of Thousand Oaks.
(8) Athens is not a large national or multi-national corporation. It is a closely-held corporation
with only four board members and officers, all of whom are members of the Arakelian family. It
is true, as Athens points out, that it has responded to an enormous volume of discovery
propounded by WM thus far in this litigation initiated by WM. The Court finds, however, that
given the small size of Athens and the concentration of decision making authority in four
individuals, two of whom are the deponents, there is more than sufficient good cause for the
depositions to get at the root of the bidding decisions and motives at issue in this case. As
acknowledged by Athens, the case boils down to whether Athens’s successful bid to the City of
Thousand Oaks was (1) below-cost, and (2) if so, whether Athens made the below-cost bid with
the prohibited purpose or intent. (Cel-Tech Communications v. L.A. Cellular Tel. Co., (1999) 20
Cal.4th 163, 173-175.) That improper intent or purpose is described as a “conscious objective”
and “positive desire” to injure competitors or destroy competition. (Ibid.) The proposed
deponents have unique and superior personal knowledge of relevant facts concerning the purpose
and intent of the bid because they were two of the four members of the board who voted to
approve the Thousand Oaks bid after hearing and receiving all information presented to the
board. They are the most knowledgeable witnesses to provide the actual intent and purpose of
Athens in presenting the bid.
(9) The Court finds that, at this juncture of the pre-trial discovery process in this action, WM is
not required to propound additional written discovery or take more employee and lesser officer
depositions prior to taking the two apex officer/board member depositions at issue. It is sufficient
that WM has demonstrated good cause to take these two apex officer/board member depositions.
The Court finds that Athens has failed to demonstrate that WM has noticed these two depositions
for any improper purpose, including but not limited to unduly burdening, oppressing or harassing
the deponents or Athens.
(10) For all of the above reasons, the Court DENIES the motion.
Counsel for Athens shall serve and file a notice of ruling consistent with the above. A copy of
this Tentative Decision (if adopted by the Court as its final ruling without modification) or of the
Clerk’s Minutes may be attached to and incorporated by reference in any such notice in lieu of
quoting same verbatim in the body of the notice.
Ruling
Metzger, Sr. vs. Metzger, Jr., et al.
Jul 25, 2024 |
22CV-0201077
METZGER, SR. VS. METZGER, JR., ET AL.
Case Number: 22CV-0201077
Tentative Ruling on Order to Show Cause Re Dismissal: An Order to Show Cause Re
Dismissal (“OSC”) issued on May 28, 2024 by Judge Boeckman, pursuant to Gov’t Code §
68608(b) to Plaintiff and Counsel for failure to cure the defects noted by the Court on February
20, 2024. Plaintiff has not filed a response to the OSC. However, proof of service has been filed
indicating that the Second Amended Complaint has been served on all parties. The OSC is
DISCHARGED. No appearance is necessary on the 8:30 a.m. calendar. The Court confirms
today’s 9:00 a.m. review hearing.
Ruling
In re J.G. Wentworth Originations, LLC
Jul 27, 2024 |
24CV-0205373
IN RE J.G. WENTWORTH ORIGINATIONS, LLC
Case Number: 24CV-0205373
Tentative Ruling on Petition for Approval for Transfer of Payment Rights: Petitioner J.G.
Wentworth Originations, LLC seeks Court approval to transfer a portion of Payee Brenda Hart’s
annuity payment to Petitioner. The Petition seeks to transfer Payee’s structured settlement annuity
comprising: A) 60 monthly payments of $328 each, beginning September 1, 2024, and ending
August 1, 2029, and B) 1 payment of $75,000 on June 1, 2032. In exchange, the Payee will receive
$44,000.00.
Insurance Code §10134 et seq sets forth the various requirements for the transfer of a structured
settlement. Ins. Code §10136 requires specific language in the form of a disclosure and further
provides requirements related to the transfer agreement. A disclosure in compliance with Ins.
Code §10136 has been provided as Exhibit B to the Petition. The California Purchase Contract
(Exhibit A to Petition) contains the contractual provisions required by Ins. Code §10136. Ins.
Code §10138 prohibits certain provisions from being included in the transfer agreement. The
California Purchase Contract does not contain any of the provisions expressly prohibited by Ins.
Code §10138. The Notice of Hearing was timely served on all interested parties. The procedural
requirements have been satisfied.
The Court must determine whether the transfer is “fair and reasonable and in the best interest of
the payee, taking into account the welfare and support of his or her dependents.” Ins. Code
§10137(a). The Petition lacks a supporting Declaration. The Petition states at page 4, ln. 10-15
that Payee would file a Declaration setting forth Payee’s basis for entering into this transaction,
including an explanation why Payee feels it is in their best interest. As of the date of the
preparation of this tentative ruling, no such declaration has been filed. This matter is continued to
Monday, August 12, 2024, at 8:30 a.m. in Department 64 for further proceedings on the Petition.
The Court also notes that Petitioner did not provide a proposed Order as required by Local Rule
of Court 5.17(D). No appearance is necessary on today’s calendar.
Ruling
In re: Cervantes, Martin Gaona
Jul 24, 2024 |
24CV01802
24CV01802 In re: Cervantes, Martin Gaona
EVENT: Change of name (minor)
There is no proof of service on the biological parents as required by CCP § 1277(f)(1).
Unless Petitioner can provide legal authority to the contrary, there is no language in CCP
§ 1277 indicating termination of parental rights is an exception to the requirement that the
biological parents be served. The Court will hear from Petitioner.
1
4-||5. 20CV00578 Holman, Ryan v. County of Butte et al.
EVENT: (1) Plaintiff’s Motion for Change of Venue
(2) Plaintiff’s Motion for a New Trial
MOTION FOR CHANGE OF VENUE
On the Court’s motion, Plaintiff’s Motion for Change of Venue is continued to December
4, 2024 at 9:00am. Per CCP § 916, an appeal stays trial proceedings including
proceedings which are affected by the judgment. The motion is premature at this stage in
light of the appeal filed by Plaintiff. Should the appeal be resolved sooner, Plaintiff may
file a request to advance the hearing to an earlier time.
MOTION FOR A NEW TRIAL
Plaintiff’s Motion for a New Trial is DENIED. After careful consideration of the moving
papers, the Court finds no grounds under CCP § 657.
The Court will prepare the order.
Ruling
In Re: Ragulsky
Jul 27, 2024 |
24CV-0204772
IN RE: RAGULSKY
Case Number: 24CV-0204772
Tentative Ruling on Petition for Change of Name: Petitioner Leslie Lorraine Ragulsky seeks to change her
name to Leslie Lorraine Armenta. No proof of publication has been submitted. The Court requires a Certificate
of Publication from the publishing newspaper before the Petition may be granted. If the Certificate of Publication
is provided, the Court intends to grant the Petition, vacate all future dates, and close the file.
Ruling
AGUAYO-MARTINEZ VS ZARAGOZA
Jul 24, 2024 |
FL-24-000399
FL-24-000399 – AGUAYO-MARTINEZ VS ZARAGOZA Respondent’s Request for Order re Discovery—HEARING REQUIRED.
After review of the papers and pleadings, the Court finds that a discovery dispute has arisen that appears amenable to resolution without a contested hearing. Accordingly, the Court is inclined to set an Informal Discovery Conference (IDC) under the auspices of a Family Centered Case Resolution Plan, and to stay determination of the present motion and any other pending discovery disputes until completion of the IDC. (Fam. Code, §§ 2450(a), 2451(a)(3); Cal. Rules of Ct., rule 5.83(c)(6)(D),(E).) The parties shall appear and may be heard on the IDC and, if ordered, to schedule the IDC at the earliest mutual availability of counsel and the IDC officer.
The following are the tentative ruling cases calendared before Judge J. Richard Distaso in Department #13:
THERE ARE NO TENTATIVES.
The following are the tentative ruling cases calendared before Judge Sweena Pannu in Department #14:
Ruling
AMANDA BABCOCK vs. NICOLAS BABCOCK
Jul 24, 2024 |
22FC08043
Parties, and counsel if represented, are ordered to appear personally or remotely for settlement conference and CMC in Dept. 2. You must notify the court and all other parties that you intend to appear remotely using form RA-010. In addition to providing notice, a Zoom link must be requested no later than one (1) court day before the hearing and shall be submitted to the Court through the Court’s website at https://www.amadorcourt.org/gi-zoomRequestForm.aspx.
Ruling
SIERRA PACIFIC WAGE AND HOUR CASES
Jul 24, 2024 |
5235
SIERRA PACIFIC WAGE AND HOUR CASES
Case Number: 5235
Tentative Ruling on Case Management Conference: This coordinated proceeding is on calendar for a Case
Management Conference. The Court has reviewed the Case Management Conference Statements filed by Plaintiff
Smith and Defendant Sierra Pacific Industries.
STAY. The McDonald matter remains stayed pending appeal.
CLASS NOTICE. The Court appreciates the efforts made by SPI in identifying employees placed at SPI by
staffing agencies and is in agreement with SPI’s suggestions regarding the employees at SPI placed by Sonora
Employment Agency. The Court invites Plaintiff McDonald to discuss the proposals made by SPI.
MOTIONS. There are currently no motions pending in the Smith matter. Pending in McDonald are SPI’s
Motion for Extension of Time to Comply with Court Order Due to Impossibility that was filed on August 31,
2023 and SPI’s Motion for Protective Order Regarding Preservation and Production of Video Camera Footage
that was filed on September 1, 2023. Both motions are stayed.
TRIAL DATES. McDonald is not presently set for trial. The Court notes that Plaintiffs in Smith filed their Third
Amended Complaint on February 28, 2024. SPI filed an Answer on April 2, 2024. As the matter is now at issue,
the parties should be ready to discuss a timeline for a Motion for Class Certification.
FURTHER CASE MANAGEMENT CONFERENCE DATE. The Court intends to set a further Case
Management Conference and will discuss available dates with counsel.