Preview
Filing # 132965650 E-Filed 08/18/2021 05:15:39 PM
IN THE CIRCUIT COURT FOR THEISTH
JUDICIAL CIRCUIT, IN AND FOR
PALM BEACH COUNTY, FLORIDA
CASE NO.: 2021-CA-002979-XXXX-MB
DIVISION: AA
JUSTIN FORER, an individual, and
MORGAN FORER, an individual
Plaintiffs,
Vv.
M&S JASMINE PROPERTIES, LLC,
a New York limited liability company, and
SAMY KHALIL, an individual
Defendants.
/
DEFENDANT JASMINE’S MOTION TO COMPEL AND OVERRULE OBJECTIONS
OF PLAINTIFF TO JASM! °S DISCOVERY
Defendant M&S JASMINE PROPERTIES, LLC (“Jasmine”), by and through their
undersigned counsel, pursuant to Florida Rules of Civil Procedure 1.351(d) and 1.380, hereby files
its Motion to Compel against and to Overrule the Objections of Plaintiff JUSTIN FORER’s and
MORGAN FORER’s (“the Forers”) to Jasmine’s Notice of Production from Non-Party for a
Subpoena Duces Tecum without Deposition to the Forer’s lender (Old Republic National
Insurance Co.) and the Forer’s underwriter (“Better Mortgage Corporation”) filed on May 4, 2021,
based upon the following grounds:
1. Pending before this Court is the Forer’s Amended Complaint, filed on April 16,
2021. The Forer’s claims against Jasmine allege, amongst other things, breach of an “As Is”
Residential Contract for Sale and Purchase (“Sale Contract) pursuant to which the Forers (as
*** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 08/18/2021 05:15:39 PM ***buyers) were to purchase the property from Jasmine (as seller). The Forers are seeking damages
and specific performance.
2. The Sale Contract was terminated because the Forers failed to satisfy the financing
contingency.
3. Even had the Sale Contract not been terminated, it was void because it was not
approved by a majority of Jasmine’s members, as required by the applicable LLC statute.
4. Jasmine, nevertheless, exhausted all efforts to try to sell the property to the Forers.
There were extensive negotiations, literally over 1,000 emails between the parties’ respective
counsel, and mediation. Unfortunately, the Forers were not able to close on the property because
their underwriter has refused to insure title, upon information and belief. Because the Forers have
objected to the subject Subpoenas to the Forers’ underwriter and lender (as discussed below),
Jasmine has been unable to further assess what occurred.
5. On May 4, 2021, Jasmine filed a Notice of Production from Non-Party for a
Subpoena Duces Tecum without Deposition to the Forer’s lender (Old Republic National
Insurance Co.) and the Forer’s underwriter (“Better Mortgage Corporation”). These Subpoenas
get to the heart of the matter — the Forer’s failure to satisfy their financing contingency with their
lender and their inability to close because their underwriter would not insure title. A true and
correct copy of said Notices are attached hereto as Composite Exhibit “A”.
6. On May 14, 2021, the Forers filed an Objection to the foregoing Subpoenas Duces
Tecum without Deposition to the Forer’s lender and underwriter. A true and correct copy of the
Forers Objection is attached hereto as Exhibit “B”.7. The Forers allege in their Objection that the Subpoenas are not relevant.' However,
as made clear herein, the Subpoenas go to the very crux of the matter — the Forer’s failure to satisfy
their financing contingency with their lender and their inability to close because their underwriter
would not insure title. If the Forers cannot carry their burden as to the former or the later, than
their requested relief for specific performance and damages would have to be denied.
8. The hearing on the Forer’s Objection to the discovery was previously set on July
14, 2021, and was canceled because the parties were trying to resolve the subject discovery
Objections. Unfortunately, the parties have been unable to reach an agreement on the discovery.
9. Jasmine has retained the undersigned counsel to represent it in this action and is
responsible for paying reasonable attorneys’ fees and costs incurred in connection therewith, and
requests an award of such fees incurred in connection with the instant Motion.
GOOD FAITH CERTIFICATION
10. The undersigned has, in good faith, conferred or attempted to confer with the
Forer’s counsel in an effort to resolve the Forer’s objections to the discovery without court action.
WHEREFORE, Defendant M&S JASMINE PROPERTIES, LLC, respectfully requests the
entry of an Order overruling the Forer’s Objection, together with an award of attorneys’ fees and
costs pursuant to Florida Rules of Civil Procedure 1.380(a)(4), and for such other and further relief
as this Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed and
served via the Florida Courts E-Filing Portal on August 18, 2021, to Michael S. Perse, Esq. and
1 Plaintiff's other objection that the request is premature because Jasmine had not responded to the Complaint is
moot as Jasmine has filed a Motion to Dismiss. Regardless, said objection has no merit.
3Michael T. Landen, Esq., Kluger, Kaplan, Silverman, Katzen & Levine, P.L. 201 South Biscayne
Blvd, Miami, Florida 33131, Email: mperse@klugerkaplan.com and mlanden@klugerkaplan.com.
THE HALLE LAW FIRM, P.A.
Counsel for M&J Jasmine Properties, LLC
2929 E. Commercial Blvd., Suite 300
Fort Lauderdale, FL 33308
(954) 537-0466 telephone
Primary Email: ahalle@hallelawfirm.com
Secondary Email: admin@hallelawfirm.com
/s/ April 1. Halle :
APRIL I. HALLE
Florida Bar No. 0059145Filing # 126111247 E-Filed 05/04/2021 11:29:04 AM Exhibit "A"
IN THE CIRCUIT COURT OF THE 15"
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA.
CASE NO.: 2021-CA-002979-XXXX-MB
JUSTIN FORER, an individual, and
MORGAN FORER, an individual
Plaintiffs,
v.
M&S JASMINE PROPERTIES, LLC,
a New York limited liability company, and
SAMY KHALIL, an individual
Defendants.
NOTICE OF PRODUCTION FROM NON-PARTY
TO: Michael Landen, Esq. (Mlanden@klugerkaplan.com)
YOU ARE HEREBY NOTIFIED, pursuant to Florida Rules of Civil Procedure
1.351, that after ten (10) days from the date of service of this Notice, the undersigned
will issue the attached Subpoena directed to Better Mortgage Corporation, a non-party,
requiring the production of the specified items set forth in the Subpoena Duces Tecum
(Without Deposition).
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
filed and served via the Florida Courts E-Filing Portal on May 4, 2021, to Michael S.
Perse, Esq. and Michael T, Landen, Esq., Kluger, Kaplan, Silverman, Katzen & Levine,
P.L. 201 South Biscayne Blvd, Miami, Florida 33131, Email: mperse@klugerkaplan.com
and mlanden@klugerkaplan.com.
Page 1 of 2THE HALLE LAW FIRM, P.A.
Counsel for M&S Jasmine Properties, LLC
3101 N, Federal Highway, Suite 401
Fort Lauderdale, FL 33306
(954) 537-0466 telephone
(954) 537-0467 facsimile
Primary Email: ahalle@hallelawfirm.com
Secondary Email: admin@hallelawfirm.com
/s/ April J. Halle 7
APRIL I. HALLE
Florida Bar No. 0059145
Page 2 of 2IN THE CIRCUIT COURT OF THE 15%
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO.: 2021-CA-002979-XXXX-MB
JUSTIN FORER, an individual, and
MORGAN FORER, an individual
Plaintiffs,
v.
M&S JASMINE PROPERTIES, LLC,
a New York limited liability company, and
SAMY KHALIL, an individual
Defendants.
/
DI C 01 POSITI
TO: Better Mortgage Corporation
Business Filings Incorporated, Registered Agent
1200 South Pine Island Road
Plantation, FL 33324
YOU ARE COMMANDED to deliver to Law Offices of April 1. Halle, Esq., within ten
(10) days of service or delivery of this subpoena, the items on the attached Exhibit "A" along
with the completed Declaration of Custodian of Records. You may comply with this subpoena
by providing legible copies of the items to be produced to the attorney whose name appears on
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i
i
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this subpoena by mail or delivery. You may condition the preparation of the copies upon
payment, in advance, of the reasonable cost of preparing the copies. You have the right to object
i to the production pursuant to this subpoena at any time before production, by giving written
notice to the attorney whose name appears on this subpoena. You will not be required to
surrender any of the documents or things requested.
| Ifyou fail to furnish the records as provided above or timely objectto this subpoena you
i may be in contempt of court. You are subpoenaed by the attorney whose name appears below
and unless excused from the subpoena by the attorney or by the Court, you shall respond to the
subpoena as directed.
Page | of 3NO TESTIMONY WILL BE TAKEN
Gril I Halle
April I. Halle, Esq.
FBN:0059145
Page 2 of 3DEFINITIONS
For purposes of this Subpoena, the following definitions apply:
A. The term “you” or “your” refers to the entity to which this Subpoena is directed and any
and all of its representatives (as defined herein).
B. The term “representative” means any and all present and former agents, employees,
servants, officers, directors, attorneys, or other persons acting or purporting to act on behalf of the person
question.
Cc. The term “person” means all individuals, entities, firms, organizations, groups,
committees, regulatory agencies, governmental entities, business entities, corporations, partnerships, trusts,
and estates.
D. The term “Contract” shall mean the “AS IS” Residential Contract for Sale and Purchase
between M&S Jasmine Properties, LLC (“Seller”) and Justin and Morgan Forer (“Buyer”) for the
transaction located at 920 Jasmine Drive, Delray Beach, FL 33483.
E. The term “Buyer” shall mean Justin Forer and Morgan Forer and any and all of its
representatives.
F. The term “Seller” shall mean M&S Jasmine Properties, LLC and any and all of its
representatives.
G. The term "document" shall have the broadest meaning permitted by the Florida Rules of
Civil Procedure and shall include, without limitation, all written, graphic, electronically stored information
or otherwise recorded material, no matter how produced or reproduced, of any nature whatsoever, and all
copies thereof in your possession, custody or control, regardless of where located. The items requested,
include without limitation, any and all documents and electronically stored information to be produced in
printed form.
H. The term “communication(s)” shall mean every manner or method of disclosure, exchange
of information, statement, or discussion between or among two or more persons, including but not limited
to, face-to-face and telephone conversations, correspondence, memoranda, telegrams, facsimiles, emails
messages, transcribed voice-mail messages, text messages, meeting, discussions, releases, statements,
reports, publications, or any recording or reproductions thereof.
IL The connectives “and” and “or” shall be construed either disjunctively or conjunctively as
necessary to bring within the scope of the discovery request all responses which might otherwise be
construed to be outside of its scope.
J The term “relating to” means in any way directly or indirectly, concerning, referring to,
disclosing, describing, confirming, constituting, discussing, supporting, evidencing, or representing
information bearing upon the matter.SCHEDULE “A”
Your entire file relating to the transaction between Seller and Buyer for the sale
and purchase of the property located at 920 Jasmine Drive, Delray Beach, FL
33483.
All documents relating to the Contract,
All documents relating to you providing financing to Buyer under the Contract.
All communications between you and Buyer.
All documents exchanged between you and Buyer.
All documents reflecting your approval of any and all loans to Buyer for the
property located at 920 Jasmine Drive, Delray Beach, FL 33483, including, but
not limited, your emails and other communications transmitting your loan
approval to Buyer.
For ali documents, provide date and timestamp details.
Page | of 2DECLARATION OF CUSTODIAN OF RECORDS
MADE PURSUANT TO FLA. STAT. §90,803(6)
J, (name). declare that I am a designated
duly authorized Custodian of Records for documents and/or information produced by
(Organization)
reserves its right to designate another
Custodian, as it deems appropriate in the event an actual appearance is required concerning the
records or information produced herein. I verify that the records produced herewith were:
A. Madeat or near the time of the occurrence, condition or event of the matters set
forth by, or from information transmitted by, a person with knowledge of those matters.
B. Kept in the course of regularly conducted activity; and
on Made as a regular practice in the course of the regularly conducted activity by
the personnel of the business.
The enclosed records are true copies of records made and kept by
, as described in the subpoena or other legal order.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on this day of. 7 , inthe City of, , State of
Page 2 of 2Filing # 126111247 E-Filed 05/04/2021 11:29:04 AM
IN THE CIRCUIT COURT OF THE 15"
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO.: 2021-CA-002979-XXXX-MB
JUSTIN FORER, an individual, and
MORGAN FORER, an individual
Plaintiffs,
v.
M&S JASMINE PROPERTIES, LLC,
a New York limited liability company, and
SAMY KHALIL, an individual
Defendants.
NOTICE OF PRODUCTION FROM NON-PARTY
TO: Michael Landen, Esq. (Mlanden@klugerkaplan.com)
YOU ARE HEREBY NOTIFIED, pursuant to Florida Rules of Civil Procedure
1,351, that after ten (10) days from the date of service of this Notice, the undersigned
will issue the attached Subpoena directed to Old Republic National Title Insurance
Co., a non-party, requiring the production of the specified items set forth in the Subpoena
Duces Tecum (Without Deposition).
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
filed and served via the Florida Courts E-Filing Portal on May 4, 2021, to Michael S.
Perse, Esq. and Michael T. Landen, Esq., Kluger, Kaplan, Silverman, Katzen & Levine,
P.L. 201 South Biscayne Blvd, Miami, Florida 33131, Email: mperse@klugerkaplan.com
and mlanden@klugerkaplan.com.
Page 1 of 2THE HALLE LAW FIRM, P.A.
Counsel! for M&S Jasmine Properties, LLC
3101 N. Federal Highway, Suite 401
Fort Lauderdale, FL 33306
(954) 537-0466 telephone
(954) 537-0467 facsimile
Primary Email: ahalle@hallelawfirm.com
Secondary Email: admin@hallelawfirm.com
/s/ April 1. Halle :
APRIL I. HALLE
Florida Bar No. 0059145
Page 2 of 2IN THE CIRCUIT COURT OF THE 15"
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO.: 2021-CA-002979-XXXX-MB
JUSTIN FORER, an individual, and
MORGAN FORER, an individual
Plaintiffs,
v.
M&S JASMINE PROPERTIES, LLC,
a New York limited liability company, and
SAMY KHALIL, an individual
Defendants.
/
DUCE HO)
TO: Old Republic National Title Insurance Co.
Chief Financial Officer, Registered Agent
200 E. Gaines Street
P.O. Box 6200
Tallahassee, FL 32399
YOU ARE COMMANDED to deliver to Law Offices of April I. Halle, Esq., within ten
(10) days of service or delivery of this subpoena, the items on the attached Exhibit "A" along
with the completed Declaration of Custodian of Records. You may comply with this subpoena
by providing legible copies of the items to be produced to the attorney whose name appears on
this subpoena by mail or delivery. You may condition the preparation of the copies upon
payment, in advance, of the reasonable cost of preparing the copies. You have the right to object
to the production pursuant to this subpoena at any time before production, by giving written
notice to the attorney whose name appears on this subpoena. You will not be required to
surrender any of the documents or things requested.
If you fail to furnish the records as provided above or timely object to this subpoena you
may be in contempt of court. You are subpoenaed by the attorney whose name appears below
and unless excused from the subpoena by the attorney or by the Court, you shall respond to the
subpoena as directed.
Page 1 of 4NO TESTIMONY WILL BE TAKEN
Gril I Hale
April I. Halle, Esq.
FBN:0059145
Page 2 of 4DEFINITIO}
For purposes of this Subpoena, the following definitions apply:
A. The term “you” or “your” refers to the entity to which this Subpoena is directed and any
and all of its representatives (as defined herein).
B. The term “representative” means any and all present and former agents, employees,
servants, officers, directors, attorneys, or other persons acting or purporting to act on behalf of the person
question.
Cc The term “person” means all individuals, entities, firms, organizations, groups,
committees, regulatory agencies, governmental entities, business entities, corporations, partnerships, trusts,
and estates.
D, The term “Contract” shall mean the “AS IS” Residential Contract for Sale and Purchase
between M&S Jasmine Properties, LLC (“Seller”) and Justin and Morgan Forer (“Buyer”) for the
transaction located at 920 Jasmine Drive, Delray Beach, FL 33483.
E. The term “Buyer” shall mean Justin Forer and Morgan Forer and any and all of its
representatives.
F. The term “Seller” shall mean M&S Jasmine Properties, LLC and any and all of its
representatives.
G. The term "document" shall have the broadest meaning permitted by the Florida Rules of
Civil Procedure and shall include, without limitation, all written, graphic, electronically stored information
or otherwise recorded material, no matter how produced or reproduced, of any nature whatsoever, and all
copies thereof in your possession, custody or control, regardless of where located. The items requested,
include without limitation, any and all documents and electronically stored information to be produced in
printed form.
H. The term “communication(s)” shall mean every manner or method of disclosure, exchange
of information, statement, or discussion between or among two or more persons, including but not limited
to, face-to-face and telephone conversations, correspondence, memoranda, telegrams, facsimiles, emails
messages, transcribed voice-mail messages, text messages, meeting, discussions, releases, statements,
reports, publications, or any recording or reproductions thereof.
L The connectives “and” and “or” shall be construed either disjunctively or conjunctively as
necessary to bring within the scope of the discovery request all responses which might otherwise be
construed to be outside of its scope.
J The term “relating to” means in any way directly or indirectly, concerning, referring to,
disclosing, describing, confirming, constituting, discussing, supporting, evidencing, or representing
information bearing upon the matter.SCHEDULE “A”
Your entire file relating to the transaction between Seller and Buyer for the sale
and purchase of the property located at 920 Jasmine Drive, Delray Beach, FL
33483.
All documents relating to the Contract.
All documents relating to you providing title insurance to Buyer under the
Contract.
All communications between you and Buyer.
All documents exchanged between you and Buyer.
All documents reflecting your requirements to insure title to the Buyer for the
property located at 920 Jasmine Drive, Delray Beach, FL 33483, including, but
not limited, your emails and other communications transmitting your loan
approval to Buyer.
For all documents, provide date and timestamp details.
Page 1 of 2DECLARATION OF CUSTODIAN OF RECORDS
MADE PURSUANT TO FLA. STAT. §90,803(6)
I, (name). declare that I am a designated
duly authorized Custodian of Records for documents and/or information produced by
(Organization)
reserves its right to designate another
Custodian, as it deems appropriate in the event an actual appearance is required concerning the
records or information produced herein. I verify that the records produced herewith were:
A. Made at or near the time of the occurrence, condition or event of the matters set
forth by, or from information transmitted by, a person with knowledge of those matters.
B. Kept in the course of regularly conducted activity; and
Cc. Made as a regular practice in the course of the regularly conducted activity by
the personnel of the business.
The enclosed records are true copies of records made and kept by
as described in the subpoena or other legal order.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on this day of. 7 , inthe City of. , State of
Page 2 of 2Filing # 126852573 E-Filed 05/14/2021 03:06:06 PM Ee
IN THE CIRCUIT COURT OF THE 15"!
JUDICIAL CIRCUIT, IN AND FOR PALM
BEACH COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.: 2021-CA-002979XXXX-MB
JUSTIN FORER, an individual, and
MORGAN FORER, an individual,
Plaintiffs,
Vv.
M&S JASMINE PROPERTIES, LLC,
a New York limited liability company, and
SAMY KHALIL, an individual,
Defendant.
/
DEFENDANT’S OBJECTIONS TO SUBPOENA
DUCES TECUM WITHOUT DEPOSITION
Plaintiffs, JUSTIN FORER and MORGAN FORER, by and through undersigned counsel,
files this Objection to Defendant, M&S’, Subpoena Duces Tecum Without Deposition, and state
as follows:
1. Defendant’s counsel served its notice of Production from Non-Party Subpoena
Duces Tecum without Deposition (the “Notice”) on May 4, 2021 to seek to issue subpoenas duces
tecum to Old Republic National Title Insurance Co. and Better Mortgage Corporation. A copy of
the Notice is attached hereto as Exhibit “A.”
2. In accordance with the Florida Rules of Civil Procedure, 1.351, Plaintiffs object to
the issuance of these subpoenas and seek a protective Order from the issuance of the subpoenas as
they are premature, and seek information that is not currently relevant to the issues in question.
KEUGER, KAPLAN, SILVERMAN, KATZEN & LEVINE, P.L., 201 So. BISCAYNE BLYD., 27" FLOOR, MIAMI, FL,33131 305.379.9000CASE NO.: 2021-CA-002979XXXX-MB
3. Indeed, as of the date of filing the instant Motion, Defendants have not responded
to the Complaint. Thus, Defendant has not set forth a proper basis for attempting to obtain records
from Plaintiffs/Buyers’ lender and title insurance underwriter, other than to burden and harass
Plaintiffs.
4. For these reasons, and until Defendant has made any showing as to the necessity of
such third party discovery, Plaintiffs object to the subpoenas.
WHEREFORE, Plaintiffs object to the subpoenas duces tecum and respectfully request
that this Court strike the subpoenas, and order such other and further relief as this Court deems
just and proper.
Respectfully submitted,
KLUGER, KAPLAN, SILVERMAN,
KATZEN & LEVINE, P.L.
Counsel for Defendants
Miami Center, 27" Floor
201 South Biscayne
Boulevard Miami, Florida
33131
Telephone: (305) 379-9000
Facsimile: (305) 379-3428
By: s/ Michael S. Perse
Michael S. Perse
Fla. Bar No. 603619
mperse@klugerkaplan.com
Michael T. Landen
Fla. Bar No. 161144
mlanden@klugerkaplan.com
2
KEUGER, KAPLAN, SILVERMAN, KATZEN & LEVINE, P.L., 201 So. BISCAYNE BLYD., 27" FLOOR, MIAMI, FL,33131 305.379.9000CASE NO.: 2021-CA-002979XXXX-MB
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing documents was served
via the Court’s E-Filing portal on this 14 day of May, 2021 on: April Halle, Esq.
(ahalle@halleelawfirm.com), Halle Law Firm P.A., 3101 N. Federal Highway, Suite 401, Fort
Lauderdale, FL 33306.
By: /s/Michael T. Landen
Michael T. Landen
3
KEUGER, KAPLAN, SILVERMAN, KATZEN & LEVINE, P.L., 201 So. BISCAYNE BLYD., 27" FLOOR, MIAMI, FL,33131 305.379.9000EXHIBIT AFiling # 126111247 E-Filed 05/04/2021 11:29:04 AM
IN THE CIRCUIT COURT OF THE 15"
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO.: 2021-CA-002979-XXXX-MB
JUSTIN FORER, an individual, and
MORGAN FORER, an individual
Plaintiffs,
v.
M&S JASMINE PROPERTIES, LLC,
a New York limited liability company, and
SAMY KHALIL, an individual
Defendants.
NOTICE OF PRODUCTION FROM NON-PARTY
TO: Michael Landen, Esq. (Mlanden@klugerkaplan.com)
YOU ARE HEREBY NOTIFIED, pursuant to Florida Rules of Civil Procedure
1,351, that after ten (10) days from the date of service of this Notice, the undersigned
will issue the attached Subpoena directed to Old Republic National Title Insurance
Co., a non-party, requiring the production of the specified items set forth in the Subpoena
Duces Tecum (Without Deposition).
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
filed and served via the Florida Courts E-Filing Portal on May 4, 2021, to Michael S.
Perse, Esq. and Michael T. Landen, Esq., Kluger, Kaplan, Silverman, Katzen & Levine,
P.L. 201 South Biscayne Blvd, Miami, Florida 33131, Email: mperse@klugerkaplan.com
and mlanden@klugerkaplan.com.
Page 1 of 2THE HALLE LAW FIRM, P.A.
Counsel! for M&S Jasmine Properties, LLC
3101 N. Federal Highway, Suite 401
Fort Lauderdale, FL 33306
(954) 537-0466 telephone
(954) 537-0467 facsimile
Primary Email: ahalle@hallelawfirm.com
Secondary Email: admin@hallelawfirm.com
/s/ April 1. Halle :
APRIL I. HALLE
Florida Bar No. 0059145
Page 2 of 2IN THE CIRCUIT COURT OF THE 15"
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO.: 2021-CA-002979-XXXX-MB
JUSTIN FORER, an individual, and
MORGAN FORER, an individual
Plaintiffs,
v.
M&S JASMINE PROPERTIES, LLC,
a New York limited liability company, and
SAMY KHALIL, an individual
Defendants.
/
DUCE HO)
TO: Old Republic National Title Insurance Co.
Chief Financial Officer, Registered Agent
200 E. Gaines Street
P.O. Box 6200
Tallahassee, FL 32399
YOU ARE COMMANDED to deliver to Law Offices of April I. Halle, Esq., within ten
(10) days of service or delivery of this subpoena, the items on the attached Exhibit "A" along
with the completed Declaration of Custodian of Records. You may comply with this subpoena
by providing legible copies of the items to be produced to the attorney whose name appears on
this subpoena by mail or delivery. You may condition the preparation of the copies upon
payment, in advance, of the reasonable cost of preparing the copies. You have the right to object
to the production pursuant to this subpoena at any time before production, by giving written
notice to the attorney whose name appears on this subpoena. You will not be required to
surrender any of the documents or things requested.
If you fail to furnish the records as provided above or timely object to this subpoena you
may be in contempt of court. You are subpoenaed by the attorney whose name appears below
and unless excused from the subpoena by the attorney or by the Court, you shall respond to the
subpoena as directed.
Page 1 of 4NO TESTIMONY WILL BE TAKEN
Gril I Hale
April I. Halle, Esq.
FBN:0059145
Page 2 of 4DEFINITIO}
For purposes of this Subpoena, the following definitions apply:
A. The term “you” or “your” refers to the entity to which this Subpoena is directed and any
and all of its representatives (as defined herein).
B. The term “representative” means any and all present and former agents, employees,
servants, officers, directors, attorneys, or other persons acting or purporting to act on behalf of the person
question.
Cc The term “person” means all individuals, entities, firms, organizations, groups,
committees, regulatory agencies, governmental entities, business entities, corporations, partnerships, trusts,
and estates.
D, The term “Contract” shall mean the “AS IS” Residential Contract for Sale and Purchase
between M&S Jasmine Properties, LLC (“Seller”) and Justin and Morgan Forer (“Buyer”) for the
transaction located at 920 Jasmine Drive, Delray Beach, FL 33483.
E. The term “Buyer” shall mean Justin Forer and Morgan Forer and any and all of its
representatives.
F. The term “Seller” shall mean M&S Jasmine Properties, LLC and any and all of its
representatives.
G. The term "document" shall have the broadest meaning permitted by the Florida Rules of
Civil Procedure and shall include, without limitation, all written, graphic, electronically stored information
or otherwise recorded material, no matter how produced or reproduced, of any nature whatsoever, and all
copies thereof in your possession, custody or control, regardless of where located. The items requested,
include without limitation, any and all documents and electronically stored information to be produced in
printed form.
H. The term “communication(s)” shall mean every manner or method of disclosure, exchange
of information, statement, or discussion between or among two or more persons, including but not limited
to, face-to-face and telephone conversations, correspondence, memoranda, telegrams, facsimiles, emails
messages, transcribed voice-mail messages, text messages, meeting, discussions, releases, statements,
reports, publications, or any recording or reproductions thereof.
L The connectives “and” and “or” shall be construed either disjunctively or conjunctively as
necessary to bring within the scope of the discovery request all responses which might otherwise be
construed to be outside of its scope.
J The term “relating to” means in any way directly or indirectly, concerning, referring to,
disclosing, describing, confirming, constituting, discussing, supporting, evidencing, or representing
information bearing upon the matter.SCHEDULE “A”
Your entire file relating to the transaction between Seller and Buyer for the sale
and purchase of the property located at 920 Jasmine Drive, Delray Beach, FL
33483.
All documents relating to the Contract.
All documents relating to you providing title insurance to Buyer under the
Contract.
All communications between you and Buyer.
All documents exchanged between you and Buyer.
All documents reflecting your requirements to insure title to the Buyer for the
property located at 920 Jasmine Drive, Delray Beach, FL 33483, including, but
not limited, your emails and other communications transmitting your loan
approval to Buyer.
For all documents, provide date and timestamp details.
Page 1 of 2DECLARATION OF CUSTODIAN OF RECORDS
MADE PURSUANT TO FLA. STAT. §90,803(6)
I, (name). declare that I am a designated
duly authorized Custodian of Records for documents and/or information produced by
(Organization)
reserves its right to designate another
Custodian, as it deems appropriate in the event an actual appearance is required concerning the
records or information produced herein. I verify that the records produced herewith were:
A. Made at or near the time of the occurrence, condition or event of the matters set
forth by, or from information transmitted by, a person with knowledge of those matters.
B. Kept in the course of regularly conducted activity; and
Cc. Made as a regular practice in the course of the regularly conducted activity by
the personnel of the business.
The enclosed records are true copies of records made and kept by
as described in the subpoena or other legal order.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on this day of. 7 , inthe City of. , State of
Page 2 of 2Filing # 126111247 E-Filed 05/04/2021 11:29:04 AM
IN THE CIRCUIT COURT OF THE 15"
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA.
CASE NO.: 2021-CA-002979-XXXX-MB
JUSTIN FORER, an individual, and
MORGAN FORER, an individual
Plaintiffs,
v.
M&S JASMINE PROPERTIES, LLC,
a New York limited liability company, and
SAMY KHALIL, an individual
Defendants.
NOTICE OF PRODUCTION FROM NON-PARTY
TO: Michael Landen, Esq. (Mlanden@klugerkaplan.com)
YOU ARE HEREBY NOTIFIED, pursuant to Florida Rules of Civil Procedure
1.351, that after ten (10) days from the date of service of this Notice, the undersigned
will issue the attached Subpoena directed to Better Mortgage Corporation, a non-party,
requiring the production of the specified items set forth in the Subpoena Duces Tecum
(Without Deposition).
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
filed and served via the Florida Courts E-Filing Portal on May 4, 2021, to Michael S.
Perse, Esq. and Michael T, Landen, Esq., Kluger, Kaplan, Silverman, Katzen & Levine,
P.L. 201 South Biscayne Blvd, Miami, Florida 33131, Email: mperse@klugerkaplan.com
and mlanden@klugerkaplan.com.
Page 1 of 2THE HALLE LAW FIRM, P.A.
Counsel for M&S Jasmine Properties, LLC
3101 N, Federal Highway, Suite 401
Fort Lauderdale, FL 33306
(954) 537-0466 telephone
(954) 537-0467 facsimile
Primary Email: ahalle@hallelawfirm.com
Secondary Email: admin@hallelawfirm.com
/s/ April J. Halle 7
APRIL I. HALLE
Florida Bar No. 0059145
Page 2 of 2IN THE CIRCUIT COURT OF THE 15%
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO.: 2021-CA-002979-XXXX-MB
JUSTIN FORER, an individual, and
MORGAN FORER, an individual
Plaintiffs,
v.
M&S JASMINE PROPERTIES, LLC,
a New York limited liability company, and
SAMY KHALIL, an individual
Defendants.
/
DI C 01 POSITI
TO: Better Mortgage Corporation
Business Filings Incorporated, Registered Agent
1200 South Pine Island Road
Plantation, FL 33324
YOU ARE COMMANDED to deliver to Law Offices of April 1. Halle, Esq., within ten
(10) days of service or delivery of this subpoena, the items on the attached Exhibit "A" along
with the completed Declaration of Custodian of Records. You may comply with this subpoena
by providing legible copies of the items to be produced to the attorney whose name appears on
|
'
i
i
\
i
this subpoena by mail or delivery. You may condition the preparation of the copies upon
payment, in advance, of the reasonable cost of preparing the copies. You have the right to object
i to the production pursuant to this subpoena at any time before production, by giving written
notice to the attorney whose name appears on this subpoena. You will not be required to
surrender any of the documents or things requested.
| Ifyou fail to furnish the records as provided above or timely objectto this subpoena you
i may be in contempt of court. You are subpoenaed by the attorney whose name appears below
and unless excused from the subpoena by the attorney or by the Court, you shall respond to the
subpoena as directed.
Page | of 3NO TESTIMONY WILL BE TAKEN
Gril I Halle
April I. Halle, Esq.
FBN:0059145
Page 2 of 3DEFINITIONS
For purposes of this Subpoena, the following definitions apply:
A. The term “you” or “your” refers to the entity to which this Subpoena is directed and any
and all of its representatives (as defined herein).
B. The term “representative” means any and all present and former agents, employees,
servants, officers, directors, attorneys, or other persons acting or purporting to act on behalf of the person
question.
Cc. The term “person” means all individuals, entities, firms, organizations, groups,
committees, regulatory agencies, governmental entities, business entities, corporations, partnerships, trusts,
and estates.
D. The term “Contract” shall mean the “AS IS” Residential Contract for Sale and Purchase
between M&S Jasmine Properties, LLC (“Seller”) and Justin and Morgan Forer (“Buyer”) for the
transaction located at 920 Jasmine Drive, Delray Beach, FL 33483.
E. The term “Buyer” shall mean Justin Forer and Morgan Forer and any and all of its
representatives.
F. The term “Seller” shall mean M&S Jasmine Properties, LLC and any and all of its
representatives.
G. The term "document" shall have the broadest meaning permitted by the Florida Rules of
Civil Procedure and shall include, without limitation, all written, graphic, electronically stored information
or otherwise recorded material, no matter how produced or reproduced, of any nature whatsoever, and all
copies thereof in your possession, custody or control, regardless of where located. The items requested,
include without limitation, any and all documents and electronically stored information to be produced in
printed form.
H. The term “communication(s)” shall mean every manner or method of disclosure, exchange
of information, statement, or discussion between or among two or more persons, including but not limited
to, face-to-face and telephone conversations, correspondence, memoranda, telegrams, facsimiles, emails
messages, transcribed voice-mail messages, text messages, meeting, discussions, releases, statements,
reports, publications, or any recording or reproductions thereof.
IL The connectives “and” and “or” shall be construed either disjunctively or conjunctively as
necessary to bring within the scope of the discovery request all responses which might otherwise be
construed to be outside of its scope.
J The term “relating to” means in any way directly or indirectly, concerning, referring to,
disclosing, describing, confirming, constituting, discussing, supporting, evidencing, or representing
information bearing upon the matter.SCHEDULE “A”
Your entire file relating to the transaction between Seller and Buyer for the sale
and purchase of the property located at 920 Jasmine Drive, Delray Beach, FL
33483.
All documents relating to the Contract,
All documents relating to you providing financing to Buyer under the Contract.
All communications between you and Buyer.
All documents exchanged between you and Buyer.
All documents reflecting your approval of any and all loans to Buyer for the
property located at 920 Jasmine Drive, Delray Beach, FL 33483, including, but
not limited, your emails and other communications transmitting your loan
approval to Buyer.
For ali documents, provide date and timestamp details.
Page | of 2DECLARATION OF CUSTODIAN OF RECORDS
MADE PURSUANT TO FLA. STAT. §90,803(6)
J, (name). declare that I am a designated
duly authorized Custodian of Records for documents and/or information produced by
(Organization)
reserves its right to designate another
Custodian, as it deems appropriate in the event an actual appearance is required concerning the
records or information produced herein. I verify that the records produced herewith were:
A. Madeat or near the time of the occurrence, condition or event of the matters set
forth by, or from information transmitted by, a person with knowledge of those matters.
B. Kept in the course of regularly conducted activity; and
on Made as a regular practice in the course of the regularly conducted activity by
the personnel of the business.
The enclosed records are true copies of records made and kept by
, as described in the subpoena or other legal order.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on this day of. 7 , inthe City of, , State of
Page 2 of 2
Related Content
in Palm Beach County
Ruling
YANG RIM CO., LTD, A KOREAN CORPORATION VS A & Y INTERNATIONAL GLOBAL INC., A CALIFORNIA CORPORATION, ET AL.
Jul 09, 2024 |
23STCV04534
Case Number:
23STCV04534
Hearing Date:
July 9, 2024
Dept:
54
Superior Court of California
County of Los Angeles
Yang Rim Co., Ltd.,
Plaintiff,
Case
No.:
23STCV04534
v.
Tentative Ruling
A & Y International Global Inc., MIQBA, Inc., Adrian Nasimi, David Kim, Fred Kim, et al.,
Defendants.
Hearing Date: July 9, 2024
Department 54, Judge Maurice A. Leiter
Motion for Leave to File a Cross-Complaint
Moving Party
: Defendants A & Y International Global Inc., Adrian Nasimi
Responding Party
: Plaintiff Yang Rim Co., Ltd.
T/R
:
DEFENDANTS MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT IS GRANTED.
DEFENDANTS to notice.
If the parties wish to submit on the tentative, please email the courtroom at
SMCdept54@lacourt.org
with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing.
The Court considers the moving papers, opposition, and reply.
BACKGROUND
Plaintiff brought the present action for (1) breach of contract(s), (2) account stated, (3) open book account, (4) common count for services performed, (5) fraud/false promise, and (6) negligent misrepresentation, based on an alleged series of purchase order contracts entered into by Plaintiff and Defendants.
Defendants David Kim, Fred Kim, and MIQBA, Inc. are in default.
ANALYSIS
A party who fails to plead a cause of action.¿.¿. whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action.
The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith.
This subdivision shall be liberally construed to avoid forfeiture of causes of action.
(CCP § 426.50.)
Causes of action involving the same transaction or occurrence as the claims in the plaintiffs complaint are compulsory and are forfeited if not pleaded in the same action.
(CCP § 426.30(a); 426.10(c).)
The Court has no discretion to deny a motion for leave to file a compulsory cross-complaint absent substantial evidence of bad faith.
(
Silver Organizations Ltd. v. Frank
(1990) 217 Cal.App.3d 94, 98-99.)
Permission to file a permissive cross-complaint may be granted in the interest of justice at any time during the course of the action.
(CCP § 428.50(c).
Defendants A & Y International Global Inc. and Adrian Nasimi move for leave to file a cross-complaint against Plaintiff Yang Rim Co., Ltd. and Co-Defendants MIQBA, Inc., Fred Kim, David Kim, and new party Alex Kim for (1) intentional fraud, (2) conspiracy to commit intentional fraud, (3) conversion, and (4) conspiracy to commit conversion.
The proposed cross-complaint, attached as Exhibit A, arises from the same transaction or occurrence as the underlying complaint.
Defendants argue that their first attorney, Andrew Ritholz, withdrew as attorney of record prior to the beginning of discovery and failed to file a timely cross-complaint due to neglect, inadvertence, or oversight.
Defendants newly retained counsel has learned new facts from documents produced during discovery on March 28, 2024, which support the filing of this cross-complaint.
Defendants also ask for the matter to be abated on the basis that Plaintiff is not qualified to do business in California and, thus, cannot maintain the instant lawsuit.
In opposition, Plaintiff argues that the motion is supported only by conclusions based on hearsay regarding recently discovered documents.
Plaintiff contends that the declaration of Defendants attorney is insufficient.
As noted, the Court must allow leave to file a compulsory cross-complaint absent substantial evidence of bad faith.
The Court does not find evidence of bad faith.
Defendants may move to abate the action through a separately filed motion.
Defendants Motion is GRANTED.
Ruling
JOHNSON, ET AL VS. PARENT, ETAL
Jul 10, 2024 |
CVCV21-0197618
JOHNSON, ET AL VS. PARENT, ETAL
Case Number: CVCV21-0197618
This matter is on calendar for review regarding status of arbitration. The Court ordered this matter to arbitration
on February 5, 2024. Neither side appeared for the prior hearing on May 3, 2024. The Court notes that
Substitutions of Attorney have been filed on behalf of Plaintiffs. An appearance is necessary on today’s
calendar to discuss the status of arbitration.
Ruling
Mariam Diarra vs Carson Kelly, et al
Jul 10, 2024 |
23CV02998
23CV02998
DIARRA v. KELLY et al
MOTION FOR AN ORDER DECLARING CARSON KELLEY’S JUDGMENT
DEBT TO MARIAM DIARRA TO BE A COMMUNITY PROPERTY DEBT
The motion is denied without prejudice.
Diarra obtained a default judgment against Carson Kelly and Humanize Global, US, Inc.
in the amount of $40,718.24. The underlying complaint alleged Labor Code violations, breach of
contract, promise without intent to perform, and violations of Business and Professions Code
section 17200. Carson Kelly is alleged to be the managing agent of Humanize Global. Diarra
worked for or was contracted by Carson Kelly and Humanize Global.
Diarra, now as judgment creditor, moves the court to declare that the debt of Carson
Kelly is a debt of the marital community of Carson Kelly and his wife Shannon Kelly, to declare
the wages of Shannon Kelly be subject to garnishment to satisfy Diarra’s judgment against
Carson Kelly, and to authorize that a writ of execution issue in her name.
Family Code section 902 defines debt as “an obligation incurred by a married person
before or during marriage, whether based on contract, tort, or otherwise.” Family Code section
910, subdivision (a) states that “[e]xcept as expressly provided by statute, the community estate
is liable for a debt incurred by either spouse before or during marriage, regardless of which
spouse has the management and control of the property and regardless of whether one or both
spouses are parties to the debt or the judgment for debt.”
Page 3 of 4
Diarra has not made a sufficient showing in this motion as follows:
1. Evidence of a marriage between Shannon and Carson Kelly, including the date
Carson and Shannon married. The only evidence are the vague statements from
counsel and Diarra in their declarations.
2. Evidence that Humanize Global US, Inc. was community property, rather than the
separate property of Carson Kelly.
In light of the above deficiencies, the court need not reach the merits of the motion.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Page 4 of 4
Ruling
FISCUS vs. PATTERSON, et al.
Jul 10, 2024 |
CVCV22-0199210
FISCUS VS. PATTERSON, ET AL.
Case Number: CVCV22-0199210
Tentative Ruling on Motion to Continue Trial Date: This matter involves multiple parties and Cross-
Complaints. Plaintiff is Paula Fiscus. Defendant/Cross-Defendants/Cross-Complainants Gregory G. Gonzales
and Marcia J. Gonzales, Trustees of the Greg and Marcia Gonzales Family 2014 Revocable Trust will be referred
to as the Gonzales Defendants. James Patterson and Patterson Landscape/Yard Manicurist Agency will be
referred to as the Patterson Defendants. The Gonzales Defendants have filed a Motion to Continue the presently
set August 20, 2024, trial date. The Patterson Defendants have joined the motion. Plaintiff has opposed the
motion. Defendant American Contractors Indemnity Company has not filed anything related to the motion and
did not attend the ex parte hearing on June 27, 2024, at which time was shortened to hear the motion today instead
of July 22, 2024, as originally noticed. There is no evidence that the Gonzales Defendants provided notice of
today’s hearing to Defendant American Contractors Indemnity Company. Cross-Defendant Mark Behnke
Construction has also not filed anything related to the motion but did attend the ex parte hearing and is therefore
aware of today’s hearing.
Merits. “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and
their counsel must regard the date set for trial as certain.” CRC 3.1332(a). “Although continuances of trials are
disfavored, each request for a continuance must be considered on its own merits. The court may grant a
continuance only on an affirmative showing of good cause requiring the continuance.” CRC 3.1332(c).
Circumstances that may indicate good cause are:
(1) The unavailability of an essential lay or expert witness because of death, illness, or other
excusable circumstances;
(2) The unavailability of a party because of death, illness, or other excusable circumstances;
(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;
(4) The substitution of trial counsel, but only where there is an affirmative showing that the
substitution is required in the interests of justice;
(5) The addition of a new party if:
(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial;
or
(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for
trial in regard to the new party's involvement in the case;
(6) A party's excused inability to obtain essential testimony, documents, or other material evidence
despite diligent efforts; or
(7) A significant, unanticipated change in the status of the case as a result of which the case is not
ready for trial.
CRC 3.1332(c).
When considering whether to grant a motion to continue, there are several factors that the Court must consider
including:
(1) The proximity of the trial date;
(2) Whether there was any previous continuance, extension of time, or delay of trial due to any
party;
(3) The length of the continuance requested;
(4) The availability of alternative means to address the problem that gave rise to the motion or
application for a continuance;
(5) The prejudice that parties or witnesses will suffer as a result of the continuance;
(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the
need for a continuance outweighs the need to avoid delay;
(7) The court's calendar and the impact of granting a continuance on other pending trials;
(8) Whether trial counsel is engaged in another trial;
(9) Whether all parties have stipulated to a continuance;
(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or
by imposing conditions on the continuance; and
(11) Any other fact or circumstance relevant to the fair determination of the motion or application.
CRC 3.1332(d).
The reasons presented by the Gonzales Defendants to continue the trial are that trial counsel has a conflicting trial
schedule and because Marcia Gonzales’s son is getting married the week of trial. In the moving papers, the
Gonzales Defendants note that the wedding date was set prior to the Court setting the Augst 20, 2024 trial date.
The reasons for the Patterson Defendants joining the motion are because counsel has a conflicting trial schedule,
counsel is moving homes in late August, and because the Pattersons have a prepaid vacation from August 26-
September 6, 2024. It is not clear whether the Pattersons’ vacation was set and prepaid when the Court set the
trial date of if the Pattersons planned it after the trial date was set. Plaintiff opposes the continuance on the grounds
that Defendants have failed to show good cause for the continuance, and because Plaintiff will be prejudiced by
a continuance. The prejudice alleged is that a later trial would not allow time for necessary remediation of the
landscaping issues before the next rainy reason. These issues have resulted in significant erosion and flooding.
Plaintiff also argues that the parties stipulated to the August 20, 2024, trial date and all agreed that no further
continuances would be granted absent stipulation. While this agreement did not make it into the Court’s Order
dated April 10, 2024 (which was submitted by the Patterson Defendants), it is clear from the Stipulation that the
parties did reach such a stipulation.
Conflicting trial schedules do not automatically create good cause to continue a trial. Trial counsel regularly have
multiple trials set for the same week. Any attorney who practices in civil law is well aware that not every trial set
actually goes forward as scheduled. No good cause has been presented in that regard. As to the wedding, it
appears the counsel for the Gonzales Defendants did not check with their client prior to agreeing to a trial date.
Had they checked, surely Ms. Gonzales would have pointed out that her son was getting married that week. The
unavailability of Ms. Gonzales due to her son’s wedding may constitute an excusable circumstance under CRC
3.1332(c)(2). Similarly, the Patterson’s vacation could also be such a circumstance, depending on when it was
scheduled.
Regarding the CRC 3.1332(d) factors, the trial date is one month and twelve days away. Trial has been continued
twice before. The first was by stipulation on October 13, 2022. The second was by stipulation on April 9, 2024,
as discussed above. The Gonzales Defendants have requested a continuance to November of 2024 while the
Patterson Defendants have requested 45-60 days. The only alternative means to address the problem that gave
rise to the motion or application for a continuance would be potentially taking witnesses out of order at trial.
Plaintiff may be prejudiced by the continuance. The matter is not entitled to preferential trial setting. Regarding
the Court’s calendar, one of the two civil trial courts will be dark on the currently set date of August 20, 2024,
which reduces the chance that this matter will be assigned to a courtroom for trial. Counsel is not currently
engaged in another trial that causes a conflict and only provides evidence that there are other trials that might
affect counsel’s availability. There is no stipulation for a continuance. The parties previously agreed that no
further continuances would occur absent a stipulation.
Regarding the interests of justice, the Court is in a position of having to weigh how much counsel’s failure to
consult with their clients regarding their schedules should be permitted to affect their client on a personal level.
It is clear that counsel should have done a better job to make sure that the agreed upon trial date worked for all
parties, and not just counsel. This is particularly so when the parties explicitly stipulated that no further
continuances would take place. However, the Court does not feel that it is in the interest of justice to punish Ms.
Gonzales by potentially preventing her from participating in her son’s wedding based on counsel’s failure to
communicate properly. As to the Patterson vacation, it is unclear whether this vacation was set at the time the
trial was set or if the Pattersons scheduled their vacation later. However, the Court does understand the need for
the Pattersons to be present for the trial to present their testimony.
On balance, the Court finds that granting of a short continuance would be in the interest of justice. The Pattersons’
vacation lasts until September 6, 2024. Therefore, the Court intends to continue the trial to Tuesday, September
10, 2024. If this trial date does not work for Plaintiff, the Court will entertain the first available date for Plaintiff.
Should the trial be continued, all discovery deadlines will flow from the new trial date.
However, the Court notes that Defendant American Contractors Indemnity Company was not provided with
notice of today’s hearing. Absent an appearance by Defendant American Contractors Indemnity Company, the
Court will continue today’s hearing to July 22, 2024, at 8:30 a.m. in Department 63 as that is the date that was
originally noticed.
Ruling
Barton vs General Motors LLC
Jul 10, 2024 |
SCV-270482
SCV-270482, Barton v. General Motors LLC
Plaintiff Barton moves for attorneys’ fees in the total amount of $147,967.50 for attorney fees
per Civil Code section 1794(d). The motion is GRANTED for the reduced amount of
$82,000.00.
PROCEDURAL HISTORY
Plaintiff filed this action against GM asserting three causes of action under the Song-Beverly Act
regarding a vehicle Plaintiff bought from GM. Ultimately, the parties settled their claims.
Plaintiff filed two memorandum of costs to support their motion for fees after the settlement. GM
requested the Court to strike or tax a majority of the costs requested by Wirtz Law. The Court
entered an order striking a portion of the fees and costs requested in counsel Wirtz Law’s
memorandum of costs so that the total award of costs was $8,816.22. Plaintiff now brings this
motion for attorney’s fees for representation by Plaintiff’s two counsels, Wirtz Law (“WL”) and
Quill and Arrow LLP (“QA”). GM opposes the motion.
EVIDENTIARY OBJECTIONS
The Court rules as follows to Plaintiff’s objection to the Declaration of Kyle Roybal:
1. Objection to Paragraph 4 as inadmissible hearsay, argumentative, inadmissible opinion,
lacking foundation, and irrelevant is OVERRULED.
2. Objection to Paragraph 5 as inadmissible hearsay, inadmissible opinion, lacking
foundation, and irrelevant is SUSTAINED.
3. Objection to Paragraph 6 as inadmissible hearsay, inadmissible opinion, lacking
foundation, and irrelevant is SUSTAINED.
4. Objection to Paragraph 8 as inadmissible hearsay, inadmissible opinion, lacking
foundation, and irrelevant is SUSTAINED.
5. Objection to Paragraph 9 as inadmissible hearsay, inadmissible opinion, lacking
foundation, and irrelevant is SUSTAINED.
6. Objection to Paragraph 15 as inadmissible hearsay, inadmissible opinion, lacking
foundation, and irrelevant is SUSTAINED.
7. Objection to Paragraph 21 as in inadmissible hearsay, inadmissible opinion, lacking
foundation, and irrelevant is SUSTAINED.
8. Objection to Paragraph 22 as inadmissible hearsay, inadmissible opinion, lacking
foundation, and irrelevant is OVERRULED.
9. Objection to Paragraph 23 as inadmissible hearsay, inadmissible opinion, lacking
foundation, and irrelevant is OVERRULED.
ANALYSIS
Legal Standard
Under Code of Civil Procedure section 1032, attorney's fees are an allowable cost when
authorized by contract, statute, or law. (C.C.P. § 1033.5(a)(10)(B).) In general, the “prevailing
party” is entitled as a matter of right to recover costs of suit in any action or proceeding.
(Santisas v. Goodin (1998) 17 Cal.4th 599, 606.)
The Song-Beverly Act allows for additional recovery by a buyer who prevails in an action per
Civil Code section 1794(d), for reasonably incurred costs including attorney’s fees based on
actual time expended expenses and other costs in connection with the commencement and
prosecution of such action.
Moving Papers
Plaintiff broke down the fees incurred for each counsel in the motion.
Plaintiff incurred $21,600.00 for QA’s legal representation. QA requests approval of rates of
$500.00 for managing attorney and $350 to $425 for associate attorneys.
Plaintiff incurred $77,045.00 for WL’s legal representation. WL’s fees are broken down based
on various attorney, paralegal, and “non-attorney” rates on page 16 of Exhibit 1 to the
Declaration of Richard Wirtz. WL requests approval of an increased rate of $750.00 for the
managing attorney, $550.00 for senior attorneys, $450.00 for associate attorneys, and $250.00 to
$300.00 for paralegal rates.
Counsels also request a multiplier of 1.5 to the lodestar fees requested so that the total attorney’s
fees amount requested is $147,967.50.
GM argues that Counsel’s work in the matter warrants a fee award of only one quarter of the
$147,967.50 requested. GM argues that the billing was excessive and requests that the multiplier
be denied because this is a routine Song-Beverly matter of many that counsels work on regularly.
Application
Based on the moving papers, the Court finds Plaintiff is entitled to attorney’s fees per Civil Code
section 1794(d). The Court finds the hours worked by counsels to be reasonable, with multiple
attorneys assisting at the two separate firms. The Court will reduce WL’s rates to the amounts
reasonable in the local area. As WL did not sufficiently show that Plaintiff attempted to find
local counsel, but were unsuccessful, the Court will not award rates acceptable in the Los
Angeles area. The Court will award QA’s requested rates as reasonable per local standards. The
Court also does not find that a multiplier of 1.5 is warranted in this matter as counsel has not
shown sufficient justification for the enhancement.
Accordingly, the Court will award fees as follows:
Name Position & Experience Hours Hourly Rate Fees
Wirtz Law
Alana Mellgren Associate Attorney 12.9 350.00 $4,515.00
Amy Rotman Senior Attorney 18.1 450.00 $8,145.00
Jessica Underwood Senior Attorney 50.6 450.00 $22,770.00
Richard Wirtz Managing Attorney 37.1 550.00 $20,405.00
Rebecca Evans Managing Paralegal 3.8 250.00 $950.00
Florence Goldson Senior Paralegal 2.3 250.00 $575.00
Andrea Lizarraga Paralegal 4.0 200.00 $800.00
Amanda Vitanatchi Paralegal 11.2 200.00 $2,240.00
TOTAL WL: $60,400.00
TOTAL QA: $21,600.00
TOTAL FEES: $82,000.00
CONCLUSION
Based on the foregoing, Plaintiff’s motion for attorneys’ fees is GRANTED in the amount of
$82,000.00. Plaintiff shall submit a written order to the Court consistent with this tentative ruling
and in compliance with Rule of Court 3.1312(a) and (b).
Ruling
AMY A. MAXWELL VS BMW OF NORTH AMERICA, LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |
24LBCV00120
Case Number:
24LBCV00120
Hearing Date:
July 9, 2024
Dept:
S27 Plaintiff has discovery motions scheduled for 7/09/24, 7/18/24, and 7/23/24.
There is also a status conference re: appointment of a discovery referee scheduled for 7/09/24.
In the interest of efficiency, the Court continues the 7/09/24 and 7/18/24 motions to 7/23/24, to be heard concurrently with the currently scheduled motion to deem RFAs admitted.
The Court takes off calendar the status conference re: appointment of discovery referee.
Upon further review, all pending motions are related motions to compel responses to initial discovery (and deem RFAs admitted), based on the contention that Defendant has not served any timely responses to outstanding discovery.
The Court finds this is not the type of discovery dispute that warrants appointment of a referee.
Plaintiff is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at
gdcdepts27@lacourt.org
indicating intention to submit on the tentative as directed by the instructions provided on the court website at
www.lacourt.org
.
If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar
.
If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative.
If the parties do not submit on the tentative, they should arrange to appear remotely.
Ruling
FIDEL HERNANDEZ MEDINA, ET AL. VS TOYOTA MOTOR SALES, U.S.A., INC.
Jul 10, 2024 |
22STCV11303
Case Number:
22STCV11303
Hearing Date:
July 10, 2024
Dept:
40
Superior Court of California
County of Los Angeles
Department 40
FIDEL HERNANDEZ MEDINA, an individual and PATRICIA HERNANDEZ, an individual,
Plaintiff,
v.
TOYOTA MOTOR SALES, U.S.A., INC., a California Corporation, and DOES 1 through 10, inclusive,
Defendants
.
Case No.:
22STCV11303
Hearing Date:
7/10/24
Trial Date:
N/A
[TENTATIVE] RULING RE:
Plaintiffs Fidel Hernandez Medina and Patricia Hernandezs Motion to Tax Costs
Background
Pleadings
Plaintiffs Fidel Hernandez Medina and Patricia Hernandez (Plaintiffs) sue Defendant Toyota Motor Sales, U.S.A., Inc. (Toyota USA) pursuant to an October 14, 2022 Third Amended Complaint (TAC) alleging claims of (1) Violation of Song-Beverly Act Breach of Express Warranty, (2) Violation of Song-Beverly Act Breach of Implied Warranty, and (3) Violation of the Song-Beverly Act Section 1793.2(b).
The claims arise from allegations that Toyota USA has breached express and implied warranties in favor of Plaintiffs by failing to repair, replace, or repurchase a used Toyota vehicle purchased by the Hernandez Plaintiffs subject to express warranties through which Toyota USA undertook to preserve or maintain the utility or performance of Plaintiffs vehicle or to provide compensation if there was a failure in such utility or performance.
Relevant Procedural History
On February 20, 2024, trial commenced in this action before concluding on February 26, 2024.
On February 24, 2024, the jury issued its verdict in favor of Toyota USA.
On March 8, 2024, judgment was entered in Toyota USAs favor.
On March 21, 2024, Toyota USA filed its Memorandum of Costs, seeking to recover $22,309.48 in costs.
On April 9, 2024, Plaintiffs filed the instant Motion to Tax Costs.
On June 26, 2024, Toyota USA filed its opposition to the instant motion.
On July 2, 2024, Plaintiffs filed their reply papers.
Motion to Tax Costs
Legal Standard
:
In general, the prevailing party is entitled as a matter of right to recover costs for suit in any action or proceeding. (Code Civ. Proc., § 1032, subd. (b);
Santisas v. Goodin
(1998) 17 Cal.4th 599, 606;
Scott Co. Of Calif. v. Blount, Inc.
(1999) 20 Cal.4th 1103, 1108.) Assuming the prevailing party requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. (
Michell v. Olick
(1996) 49 Cal.App.4th 1194, 1198;
Nelson v. Anderson
(1999) 72 Cal.App.4th 111, 129.) The term prevailing party for costs purposes is defined by statute to include: ¿
(1) The party with a net monetary recovery; ¿
(2) A defendant who is dismissed from the action; ¿
(3) A defendant where neither plaintiff nor defendant recovers anything; and ¿
(4) A defendant as against those plaintiffs who do not recover any relief against that defendant.
(Code Civ. Proc., § 1032, subd. (a)(4).)
If the party does not fall within one of these four express categories, the court may exercise its discretion to award or deny costs. (See
Lincoln v. Schurgin
(1995) 39 Cal.App.4th 100, 105.)
If any party recovers other than monetary relief and in situations other than as specified, the prevailing party shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034. (Code Civ. Proc., § 1032, subd. (a)(4).) For example, even if a plaintiff maintains a net monetary recovery, in determining the prevailing party in the litigation, the trial court should also consider, if applicable, the defendants success on its declaratory relief claims and exercise its discretion to allow costs or not and, if allowed, to apportion them as appropriate. (
Wolf v. Walt Disney Pictures & Television
(2008) 162 Cal.App.4th 1107, 1142; see, e.g.,
Lincoln v. Schurgin
,
supra
, 39 Cal.App.4th at pp. 104-105 [when plaintiff wins net monetary recovery but defendant prevails in its cross-action for declaratory relief, case presents circumstance not otherwise specified; in that case, determination of prevailing party is matter within courts discretion].)
¿Allowable costs under Code of Civil Procedure section 1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount. An item not specifically allowable under Section 1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (
Ladas v. California State Automotive Assoc.
(1993) 19 Cal.App.4th 761, 773-774.)
A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred. (
Rappenecker v. Sea-Land Serv., Inc
. (1979) 93 Cal.App.3d 256, 266.) A party seeking to tax costs must provide evidence to rebut this prima facie showing. (
Jones v. Dumrichob
(1998) 63 Cal.App.4th 1258, 1266, superseded by statute on other grounds in Code Civ. Proc., § 998, subd. (c)(1) [whether costs permissible from filing of complaint or from date of 998 offer].) Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred. (
Jones v. Dumrichob
,
supra
, at p. 1266.)¿On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (
Ibid
.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (
Ladas v. California State Automotive Assoc.
,
supra
, 19 Cal.App.4th at p. 774.) However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (
Ibid
.) Discretion is abused only when, in its exercise, the court exceeds the bounds of reason, all of the circumstances being considered. (
Lincoln v. Schurgin
,
supra
, 39 Cal.App.4th at p. 105.)¿
Order Striking or Taxing Costs
: GRANTED IN PART
As a preliminary matter, it is undisputed that Toyota USA is not seeking to recover costs pursuant to Code of Civil Procedure § 1794(d) because that statute is limited to buyers of consumer goods. Rather, as the prevailing party in this action, Toyota USA is entitled to recover costs pursuant to Code of Civil Procedure § 1032(a)(4) and 1033.5. Nevertheless, Plaintiffs appear to argue the opposite. (See Reply at pp. 3-4, relying on
Wohlgemuth v. Caterpillar, Inc.
(2012) 207 Cal.App.4th 1252, 1264.) However, this argument is not persuasive. Code of Civil Procedure § 1794(d) does not explicitly preclude a seller of consumer goods from recovering their costs under Code of Civil Procedure § 1032. Indeed, in
Murillo v. Fleetwood Enterprises, Inc.
(1998) 17 Cal.4th 985, the Court rejected this argument. (
Id.
at p. 988 [In this case, plaintiff filed suit under the Song-Beverly Act, but defendants prevailed. Defendants sought to recover their costs and expert witness fees under sections 1032, subdivision (b) and 998, subdivision (c), whereas plaintiff argued the more specific provisions of the Act prohibited prevailing defendants from any such recovery.
We conclude defendants are entitled to their costs and expert witness
fees].) Thus, in determining whether an award of costs should be issued, the Court will rely on the guideline set forth under Code of Civil Procedure § 1033.5(c).
Here, Toyota USA seeks $22,309.48 pursuant to Code of Civil Procedure §§ 1032 and 1033.5. By way of its motion, Plaintiffs seek to tax these costs in the following categories: (1) motion and filing fees in its entirety or alternatively $181.08; (2) deposition costs in the amount of $4,351.70; (3) court reporter fees in their entirety; and (4) other costs and fees in the amount of $2,338.49.
First, Plaintiffs argue that Toyota USAs requested costs of $1,447.72 for motion and filing fees should be stricken because they include attorney service fees, and Toyota USA has failed to correctly identify the actual court motion and filing fees incurred. (Motion at pg. 5.) However, this ignores the numerous invoices enclosed and referenced by Toyota USAs Memorandum of Costs at Attachment 1g that identify the court motion and filing fees incurred.
Furthermore, [i]f the items in a cost memorandum appear proper, the verified memorandum is prima facie evidence the expenses were necessarily incurred by the prevailing party. (Citation.) To controvert this evidence, the burden is on the objecting party to present evidence showing the contrary. (Citation) (
Whatley-Miller v. Cooper
(2013) 212 Cal.App.4th 1103, 1115.) Filing fees and electronic filing fees are recoverable costs (See Code Civ. Proc. § 1033.5(a)(1), (14).) Thus, it is Plaintiffs burden to present evidence to show why these costs should not be awarded. In this regard, Plaintiffs identify $181.08 worth of filing fee costs that should be taxed. (Motion at pp. 6-7.) Of these costs, the Court finds that the filing fees associated with Toyota USAs Motions in Limine were not reasonably necessary to the conduct of the litigation because they had been untimely filed. Therefore, these costs are taxed in the amount of $65.34. As to the costs associated with unsuccessful motions, the Court finds that these costs were not prepared merely out of convenience and are recoverable as a result. (Code Civ. Proc. § 1033.5(c).)
Second, Plaintiffs argues the claimed deposition costs should be taxed in the amount of $4,351.70 because the amounts are excessive and unnecessary. Recovery of deposition costs is allowed.
(Code Civ. Proc. § 1033.5(a)(3).) Defendants point out that multiple deposition dates for the plaintiffs had to be scheduled and rescheduled. In this instance, Plaintiffs have failed to meet their burden to undermine the prima facie evidence that the expenses were necessarily incurred by Toyota USA. (
Whatley-Miller, supra,
212 Cal.App.4th at 1115.)
Third, Plaintiffs contend that Toyota USAs claimed court reporter fees should be taxed because they are not recoverable pursuant to Code of Civil Procedure § 1033 subd. (b)(5). (Motion at pg. 8.) This argument is not persuasive. The Court has discretion to allow additional costs that are reasonable in amount. (Code Civ. Proc. § 1033.5 subd. (c)(4). Based on the invoices submitted with its Memorandum of Costs, Toyota USA has shown that these claimed costs were for court reporting fees during the trial. Such expenses are reasonable in light of the understandable prudence of preserving a record for appeal. Notably, Plaintiff has failed to submit any evidence to suggest that the amount of these fees is unreasonable. Therefore, the Court declines to tax this category of costs.
Fourth, Plaintiffs argue that the claim for other costs and expenses that include meals, copying charges, travel, and lodging. (Motion at pp. 8-12.) The Court largely agrees that many of these costs are either not allowed or not reasonably necessary to the conduct of the litigation. For instance, Toyota USA seeks to recover $50.37 in FedEx charges of trial documents and the final status conference. Courier and messenger fees are recoverable, at the discretion of the trial court, if they are reasonably necessary to the conduct of the litigation. (
Dept. of Children & Family Services
(2019) 37 Cal.App.5th 675, 696, as modified (July 18, 2019), rehg denied (Aug. 9, 2019), review denied (Oct. 23, 2019).) Because these costs are not expressly allowed under Code of Civil Procedure § 1033.5, it is Toyota USAs burden to establish why these costs were necessary. (
Ladas v. California State Auto. Assn.
(1993) 19 Cal.App.4th 761, 774.) However, the opposition fails to articulate such a necessity. Thus, the Court taxes these courier costs as not reasonable.
Also, Toyota USA seeks to recover $19.98 associated with a CARFAX report for trial, but Code of Civil Procedure § 1033.5(b)(2) excludes investigation costs. Moreover, Toyota USA seeks to recover a combined amount of $2,095.49 for meals, lodging, and travel. While it is in the Courts discretion to award these costs pursuant to Code of Civil Procedure § 1033.5(c)(4), they have been properly objected to, and Toyota USA has failed to meet its burden in establishing why these costs were not merely convenient and reasonable in amount.
In terms of the $196.90 in costs spent for additional copies of trial exhibits, these costs are allowed under Code of Civil Procedure § 1033.5(a)(13) and appear to be reasonable in amount. Thus, the Court declines to tax these amounts.
Based on the foregoing, Plaintiffs motion to tax costs is granted in part in the amount of $2,231.18. Consequently, Toyota USA shall be entitled to recover $20,078.30 in costs.
Conclusion
Plaintiffs Fidel Hernandez Medina and Patricia Hernandezs Motion to Tax Costs is GRANTED in part in the amount of $2,231.18. Consequently, Toyota USA shall be entitled to recover $20,078.30 in costs.
Ruling
ENCORE AUTOMOTIVE, INC. VS ROBERT Y. LEE, ET AL.
Jul 10, 2024 |
22AHCV00604
Case Number:
22AHCV00604
Hearing Date:
July 10, 2024
Dept:
3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT
ENCORE AUTOMOTIVE, INC.
,
Plaintiff(s),
vs.
ROBERT Y. LEE, et al.
,
Defendant(s).
)
)
)
)
)
)
)
)
)
)
)
)
)
CASE NO.:
22AHCV00604
[TENTATIVE] ORDER RE:
PLAINTIFF ENCORE AUTOMOTIVE, INC.S MOTION TO COMPEL ROBERT Y. LEES RESPONSE TO FORM INTERROGATORIES
Dept. 3
8:30 a.m.
July 10
, 2024
On
August 24, 2022
, plaintiff
Encore Automotive, Inc.
(Plaintiff) filed this action against defendant
Robert Y. Lee
(Defendant). On March 21, 2024, Plaintiff filed this motion for an order compelling Defendants responses to First Set of Form Interrogatories. On June 26, 2024, Defendant filed a response to this motion stating that responses without objections had been served. On July 2, 2024, Plaintiff filed a reply brief stating that Defendant failed to serve responses to Form Interrogatory Nos. 50.2, 50.3, 50.4, 50.5, and 50.6. In light of Defendants apparent failure to serve responses to these interrogatories, the Court GRANTS Plaintiffs motion in part and orders Defendant to serve verified responses, without objections, to Form Interrogatory Nos. 50.2, 50.3, 50.4, 50.5, and 50.6 from Plaintiffs First Set of Form Interrogatories, within 15 days of the date of this order.
Moving party to give notice.
Dated this
10th
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.
Preview
Filing # 132965650 E-Filed 08/18/2021 05:15:39 PM IN THE CIRCUIT COURT FOR THEISTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 2021-CA-002979-XXXX-MB DIVISION: AA JUSTIN FORER, an individual, and MORGAN FORER, an individual Plaintiffs, Vv. M&S JASMINE PROPERTIES, LLC, a New York limited liability company, and SAMY KHALIL, an individual Defendants. / DEFENDANT JASMINE’S MOTION TO COMPEL AND OVERRULE OBJECTIONS OF PLAINTIFF TO JASM! °S DISCOVERY Defendant M&S JASMINE PROPERTIES, LLC (“Jasmine”), by and through their undersigned counsel, pursuant to Florida Rules of Civil Procedure 1.351(d) and 1.380, hereby files its Motion to Compel against and to Overrule the Objections of Plaintiff JUSTIN FORER’s and MORGAN FORER’s (“the Forers”) to Jasmine’s Notice of Production from Non-Party for a Subpoena Duces Tecum without Deposition to the Forer’s lender (Old Republic National Insurance Co.) and the Forer’s underwriter (“Better Mortgage Corporation”) filed on May 4, 2021, based upon the following grounds: 1. Pending before this Court is the Forer’s Amended Complaint, filed on April 16, 2021. The Forer’s claims against Jasmine allege, amongst other things, breach of an “As Is” Residential Contract for Sale and Purchase (“Sale Contract) pursuant to which the Forers (as *** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 08/18/2021 05:15:39 PM ***buyers) were to purchase the property from Jasmine (as seller). The Forers are seeking damages and specific performance. 2. The Sale Contract was terminated because the Forers failed to satisfy the financing contingency. 3. Even had the Sale Contract not been terminated, it was void because it was not approved by a majority of Jasmine’s members, as required by the applicable LLC statute. 4. Jasmine, nevertheless, exhausted all efforts to try to sell the property to the Forers. There were extensive negotiations, literally over 1,000 emails between the parties’ respective counsel, and mediation. Unfortunately, the Forers were not able to close on the property because their underwriter has refused to insure title, upon information and belief. Because the Forers have objected to the subject Subpoenas to the Forers’ underwriter and lender (as discussed below), Jasmine has been unable to further assess what occurred. 5. On May 4, 2021, Jasmine filed a Notice of Production from Non-Party for a Subpoena Duces Tecum without Deposition to the Forer’s lender (Old Republic National Insurance Co.) and the Forer’s underwriter (“Better Mortgage Corporation”). These Subpoenas get to the heart of the matter — the Forer’s failure to satisfy their financing contingency with their lender and their inability to close because their underwriter would not insure title. A true and correct copy of said Notices are attached hereto as Composite Exhibit “A”. 6. On May 14, 2021, the Forers filed an Objection to the foregoing Subpoenas Duces Tecum without Deposition to the Forer’s lender and underwriter. A true and correct copy of the Forers Objection is attached hereto as Exhibit “B”.7. The Forers allege in their Objection that the Subpoenas are not relevant.' However, as made clear herein, the Subpoenas go to the very crux of the matter — the Forer’s failure to satisfy their financing contingency with their lender and their inability to close because their underwriter would not insure title. If the Forers cannot carry their burden as to the former or the later, than their requested relief for specific performance and damages would have to be denied. 8. The hearing on the Forer’s Objection to the discovery was previously set on July 14, 2021, and was canceled because the parties were trying to resolve the subject discovery Objections. Unfortunately, the parties have been unable to reach an agreement on the discovery. 9. Jasmine has retained the undersigned counsel to represent it in this action and is responsible for paying reasonable attorneys’ fees and costs incurred in connection therewith, and requests an award of such fees incurred in connection with the instant Motion. GOOD FAITH CERTIFICATION 10. The undersigned has, in good faith, conferred or attempted to confer with the Forer’s counsel in an effort to resolve the Forer’s objections to the discovery without court action. WHEREFORE, Defendant M&S JASMINE PROPERTIES, LLC, respectfully requests the entry of an Order overruling the Forer’s Objection, together with an award of attorneys’ fees and costs pursuant to Florida Rules of Civil Procedure 1.380(a)(4), and for such other and further relief as this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed and served via the Florida Courts E-Filing Portal on August 18, 2021, to Michael S. Perse, Esq. and 1 Plaintiff's other objection that the request is premature because Jasmine had not responded to the Complaint is moot as Jasmine has filed a Motion to Dismiss. Regardless, said objection has no merit. 3Michael T. Landen, Esq., Kluger, Kaplan, Silverman, Katzen & Levine, P.L. 201 South Biscayne Blvd, Miami, Florida 33131, Email: mperse@klugerkaplan.com and mlanden@klugerkaplan.com. THE HALLE LAW FIRM, P.A. Counsel for M&J Jasmine Properties, LLC 2929 E. Commercial Blvd., Suite 300 Fort Lauderdale, FL 33308 (954) 537-0466 telephone Primary Email: ahalle@hallelawfirm.com Secondary Email: admin@hallelawfirm.com /s/ April 1. Halle : APRIL I. HALLE Florida Bar No. 0059145Filing # 126111247 E-Filed 05/04/2021 11:29:04 AM Exhibit "A" IN THE CIRCUIT COURT OF THE 15" JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA. CASE NO.: 2021-CA-002979-XXXX-MB JUSTIN FORER, an individual, and MORGAN FORER, an individual Plaintiffs, v. M&S JASMINE PROPERTIES, LLC, a New York limited liability company, and SAMY KHALIL, an individual Defendants. NOTICE OF PRODUCTION FROM NON-PARTY TO: Michael Landen, Esq. (Mlanden@klugerkaplan.com) YOU ARE HEREBY NOTIFIED, pursuant to Florida Rules of Civil Procedure 1.351, that after ten (10) days from the date of service of this Notice, the undersigned will issue the attached Subpoena directed to Better Mortgage Corporation, a non-party, requiring the production of the specified items set forth in the Subpoena Duces Tecum (Without Deposition). CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed and served via the Florida Courts E-Filing Portal on May 4, 2021, to Michael S. Perse, Esq. and Michael T, Landen, Esq., Kluger, Kaplan, Silverman, Katzen & Levine, P.L. 201 South Biscayne Blvd, Miami, Florida 33131, Email: mperse@klugerkaplan.com and mlanden@klugerkaplan.com. Page 1 of 2THE HALLE LAW FIRM, P.A. Counsel for M&S Jasmine Properties, LLC 3101 N, Federal Highway, Suite 401 Fort Lauderdale, FL 33306 (954) 537-0466 telephone (954) 537-0467 facsimile Primary Email: ahalle@hallelawfirm.com Secondary Email: admin@hallelawfirm.com /s/ April J. Halle 7 APRIL I. HALLE Florida Bar No. 0059145 Page 2 of 2IN THE CIRCUIT COURT OF THE 15% JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 2021-CA-002979-XXXX-MB JUSTIN FORER, an individual, and MORGAN FORER, an individual Plaintiffs, v. M&S JASMINE PROPERTIES, LLC, a New York limited liability company, and SAMY KHALIL, an individual Defendants. / DI C 01 POSITI TO: Better Mortgage Corporation Business Filings Incorporated, Registered Agent 1200 South Pine Island Road Plantation, FL 33324 YOU ARE COMMANDED to deliver to Law Offices of April 1. Halle, Esq., within ten (10) days of service or delivery of this subpoena, the items on the attached Exhibit "A" along with the completed Declaration of Custodian of Records. You may comply with this subpoena by providing legible copies of the items to be produced to the attorney whose name appears on | ' i i \ i this subpoena by mail or delivery. You may condition the preparation of the copies upon payment, in advance, of the reasonable cost of preparing the copies. You have the right to object i to the production pursuant to this subpoena at any time before production, by giving written notice to the attorney whose name appears on this subpoena. You will not be required to surrender any of the documents or things requested. | Ifyou fail to furnish the records as provided above or timely objectto this subpoena you i may be in contempt of court. You are subpoenaed by the attorney whose name appears below and unless excused from the subpoena by the attorney or by the Court, you shall respond to the subpoena as directed. Page | of 3NO TESTIMONY WILL BE TAKEN Gril I Halle April I. Halle, Esq. FBN:0059145 Page 2 of 3DEFINITIONS For purposes of this Subpoena, the following definitions apply: A. The term “you” or “your” refers to the entity to which this Subpoena is directed and any and all of its representatives (as defined herein). B. The term “representative” means any and all present and former agents, employees, servants, officers, directors, attorneys, or other persons acting or purporting to act on behalf of the person question. Cc. The term “person” means all individuals, entities, firms, organizations, groups, committees, regulatory agencies, governmental entities, business entities, corporations, partnerships, trusts, and estates. D. The term “Contract” shall mean the “AS IS” Residential Contract for Sale and Purchase between M&S Jasmine Properties, LLC (“Seller”) and Justin and Morgan Forer (“Buyer”) for the transaction located at 920 Jasmine Drive, Delray Beach, FL 33483. E. The term “Buyer” shall mean Justin Forer and Morgan Forer and any and all of its representatives. F. The term “Seller” shall mean M&S Jasmine Properties, LLC and any and all of its representatives. G. The term "document" shall have the broadest meaning permitted by the Florida Rules of Civil Procedure and shall include, without limitation, all written, graphic, electronically stored information or otherwise recorded material, no matter how produced or reproduced, of any nature whatsoever, and all copies thereof in your possession, custody or control, regardless of where located. The items requested, include without limitation, any and all documents and electronically stored information to be produced in printed form. H. The term “communication(s)” shall mean every manner or method of disclosure, exchange of information, statement, or discussion between or among two or more persons, including but not limited to, face-to-face and telephone conversations, correspondence, memoranda, telegrams, facsimiles, emails messages, transcribed voice-mail messages, text messages, meeting, discussions, releases, statements, reports, publications, or any recording or reproductions thereof. IL The connectives “and” and “or” shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses which might otherwise be construed to be outside of its scope. J The term “relating to” means in any way directly or indirectly, concerning, referring to, disclosing, describing, confirming, constituting, discussing, supporting, evidencing, or representing information bearing upon the matter.SCHEDULE “A” Your entire file relating to the transaction between Seller and Buyer for the sale and purchase of the property located at 920 Jasmine Drive, Delray Beach, FL 33483. All documents relating to the Contract, All documents relating to you providing financing to Buyer under the Contract. All communications between you and Buyer. All documents exchanged between you and Buyer. All documents reflecting your approval of any and all loans to Buyer for the property located at 920 Jasmine Drive, Delray Beach, FL 33483, including, but not limited, your emails and other communications transmitting your loan approval to Buyer. For ali documents, provide date and timestamp details. Page | of 2DECLARATION OF CUSTODIAN OF RECORDS MADE PURSUANT TO FLA. STAT. §90,803(6) J, (name). declare that I am a designated duly authorized Custodian of Records for documents and/or information produced by (Organization) reserves its right to designate another Custodian, as it deems appropriate in the event an actual appearance is required concerning the records or information produced herein. I verify that the records produced herewith were: A. Madeat or near the time of the occurrence, condition or event of the matters set forth by, or from information transmitted by, a person with knowledge of those matters. B. Kept in the course of regularly conducted activity; and on Made as a regular practice in the course of the regularly conducted activity by the personnel of the business. The enclosed records are true copies of records made and kept by , as described in the subpoena or other legal order. I declare under penalty of perjury that the foregoing is true and correct. Executed on this day of. 7 , inthe City of, , State of Page 2 of 2Filing # 126111247 E-Filed 05/04/2021 11:29:04 AM IN THE CIRCUIT COURT OF THE 15" JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 2021-CA-002979-XXXX-MB JUSTIN FORER, an individual, and MORGAN FORER, an individual Plaintiffs, v. M&S JASMINE PROPERTIES, LLC, a New York limited liability company, and SAMY KHALIL, an individual Defendants. NOTICE OF PRODUCTION FROM NON-PARTY TO: Michael Landen, Esq. (Mlanden@klugerkaplan.com) YOU ARE HEREBY NOTIFIED, pursuant to Florida Rules of Civil Procedure 1,351, that after ten (10) days from the date of service of this Notice, the undersigned will issue the attached Subpoena directed to Old Republic National Title Insurance Co., a non-party, requiring the production of the specified items set forth in the Subpoena Duces Tecum (Without Deposition). CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed and served via the Florida Courts E-Filing Portal on May 4, 2021, to Michael S. Perse, Esq. and Michael T. Landen, Esq., Kluger, Kaplan, Silverman, Katzen & Levine, P.L. 201 South Biscayne Blvd, Miami, Florida 33131, Email: mperse@klugerkaplan.com and mlanden@klugerkaplan.com. Page 1 of 2THE HALLE LAW FIRM, P.A. Counsel! for M&S Jasmine Properties, LLC 3101 N. Federal Highway, Suite 401 Fort Lauderdale, FL 33306 (954) 537-0466 telephone (954) 537-0467 facsimile Primary Email: ahalle@hallelawfirm.com Secondary Email: admin@hallelawfirm.com /s/ April 1. Halle : APRIL I. HALLE Florida Bar No. 0059145 Page 2 of 2IN THE CIRCUIT COURT OF THE 15" JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 2021-CA-002979-XXXX-MB JUSTIN FORER, an individual, and MORGAN FORER, an individual Plaintiffs, v. M&S JASMINE PROPERTIES, LLC, a New York limited liability company, and SAMY KHALIL, an individual Defendants. / DUCE HO) TO: Old Republic National Title Insurance Co. Chief Financial Officer, Registered Agent 200 E. Gaines Street P.O. Box 6200 Tallahassee, FL 32399 YOU ARE COMMANDED to deliver to Law Offices of April I. Halle, Esq., within ten (10) days of service or delivery of this subpoena, the items on the attached Exhibit "A" along with the completed Declaration of Custodian of Records. You may comply with this subpoena by providing legible copies of the items to be produced to the attorney whose name appears on this subpoena by mail or delivery. You may condition the preparation of the copies upon payment, in advance, of the reasonable cost of preparing the copies. You have the right to object to the production pursuant to this subpoena at any time before production, by giving written notice to the attorney whose name appears on this subpoena. You will not be required to surrender any of the documents or things requested. If you fail to furnish the records as provided above or timely object to this subpoena you may be in contempt of court. You are subpoenaed by the attorney whose name appears below and unless excused from the subpoena by the attorney or by the Court, you shall respond to the subpoena as directed. Page 1 of 4NO TESTIMONY WILL BE TAKEN Gril I Hale April I. Halle, Esq. FBN:0059145 Page 2 of 4DEFINITIO} For purposes of this Subpoena, the following definitions apply: A. The term “you” or “your” refers to the entity to which this Subpoena is directed and any and all of its representatives (as defined herein). B. The term “representative” means any and all present and former agents, employees, servants, officers, directors, attorneys, or other persons acting or purporting to act on behalf of the person question. Cc The term “person” means all individuals, entities, firms, organizations, groups, committees, regulatory agencies, governmental entities, business entities, corporations, partnerships, trusts, and estates. D, The term “Contract” shall mean the “AS IS” Residential Contract for Sale and Purchase between M&S Jasmine Properties, LLC (“Seller”) and Justin and Morgan Forer (“Buyer”) for the transaction located at 920 Jasmine Drive, Delray Beach, FL 33483. E. The term “Buyer” shall mean Justin Forer and Morgan Forer and any and all of its representatives. F. The term “Seller” shall mean M&S Jasmine Properties, LLC and any and all of its representatives. G. The term "document" shall have the broadest meaning permitted by the Florida Rules of Civil Procedure and shall include, without limitation, all written, graphic, electronically stored information or otherwise recorded material, no matter how produced or reproduced, of any nature whatsoever, and all copies thereof in your possession, custody or control, regardless of where located. The items requested, include without limitation, any and all documents and electronically stored information to be produced in printed form. H. The term “communication(s)” shall mean every manner or method of disclosure, exchange of information, statement, or discussion between or among two or more persons, including but not limited to, face-to-face and telephone conversations, correspondence, memoranda, telegrams, facsimiles, emails messages, transcribed voice-mail messages, text messages, meeting, discussions, releases, statements, reports, publications, or any recording or reproductions thereof. L The connectives “and” and “or” shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses which might otherwise be construed to be outside of its scope. J The term “relating to” means in any way directly or indirectly, concerning, referring to, disclosing, describing, confirming, constituting, discussing, supporting, evidencing, or representing information bearing upon the matter.SCHEDULE “A” Your entire file relating to the transaction between Seller and Buyer for the sale and purchase of the property located at 920 Jasmine Drive, Delray Beach, FL 33483. All documents relating to the Contract. All documents relating to you providing title insurance to Buyer under the Contract. All communications between you and Buyer. All documents exchanged between you and Buyer. All documents reflecting your requirements to insure title to the Buyer for the property located at 920 Jasmine Drive, Delray Beach, FL 33483, including, but not limited, your emails and other communications transmitting your loan approval to Buyer. For all documents, provide date and timestamp details. Page 1 of 2DECLARATION OF CUSTODIAN OF RECORDS MADE PURSUANT TO FLA. STAT. §90,803(6) I, (name). declare that I am a designated duly authorized Custodian of Records for documents and/or information produced by (Organization) reserves its right to designate another Custodian, as it deems appropriate in the event an actual appearance is required concerning the records or information produced herein. I verify that the records produced herewith were: A. Made at or near the time of the occurrence, condition or event of the matters set forth by, or from information transmitted by, a person with knowledge of those matters. B. Kept in the course of regularly conducted activity; and Cc. Made as a regular practice in the course of the regularly conducted activity by the personnel of the business. The enclosed records are true copies of records made and kept by as described in the subpoena or other legal order. I declare under penalty of perjury that the foregoing is true and correct. Executed on this day of. 7 , inthe City of. , State of Page 2 of 2Filing # 126852573 E-Filed 05/14/2021 03:06:06 PM Ee IN THE CIRCUIT COURT OF THE 15"! JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO.: 2021-CA-002979XXXX-MB JUSTIN FORER, an individual, and MORGAN FORER, an individual, Plaintiffs, Vv. M&S JASMINE PROPERTIES, LLC, a New York limited liability company, and SAMY KHALIL, an individual, Defendant. / DEFENDANT’S OBJECTIONS TO SUBPOENA DUCES TECUM WITHOUT DEPOSITION Plaintiffs, JUSTIN FORER and MORGAN FORER, by and through undersigned counsel, files this Objection to Defendant, M&S’, Subpoena Duces Tecum Without Deposition, and state as follows: 1. Defendant’s counsel served its notice of Production from Non-Party Subpoena Duces Tecum without Deposition (the “Notice”) on May 4, 2021 to seek to issue subpoenas duces tecum to Old Republic National Title Insurance Co. and Better Mortgage Corporation. A copy of the Notice is attached hereto as Exhibit “A.” 2. In accordance with the Florida Rules of Civil Procedure, 1.351, Plaintiffs object to the issuance of these subpoenas and seek a protective Order from the issuance of the subpoenas as they are premature, and seek information that is not currently relevant to the issues in question. KEUGER, KAPLAN, SILVERMAN, KATZEN & LEVINE, P.L., 201 So. BISCAYNE BLYD., 27" FLOOR, MIAMI, FL,33131 305.379.9000CASE NO.: 2021-CA-002979XXXX-MB 3. Indeed, as of the date of filing the instant Motion, Defendants have not responded to the Complaint. Thus, Defendant has not set forth a proper basis for attempting to obtain records from Plaintiffs/Buyers’ lender and title insurance underwriter, other than to burden and harass Plaintiffs. 4. For these reasons, and until Defendant has made any showing as to the necessity of such third party discovery, Plaintiffs object to the subpoenas. WHEREFORE, Plaintiffs object to the subpoenas duces tecum and respectfully request that this Court strike the subpoenas, and order such other and further relief as this Court deems just and proper. Respectfully submitted, KLUGER, KAPLAN, SILVERMAN, KATZEN & LEVINE, P.L. Counsel for Defendants Miami Center, 27" Floor 201 South Biscayne Boulevard Miami, Florida 33131 Telephone: (305) 379-9000 Facsimile: (305) 379-3428 By: s/ Michael S. Perse Michael S. Perse Fla. Bar No. 603619 mperse@klugerkaplan.com Michael T. Landen Fla. Bar No. 161144 mlanden@klugerkaplan.com 2 KEUGER, KAPLAN, SILVERMAN, KATZEN & LEVINE, P.L., 201 So. BISCAYNE BLYD., 27" FLOOR, MIAMI, FL,33131 305.379.9000CASE NO.: 2021-CA-002979XXXX-MB CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing documents was served via the Court’s E-Filing portal on this 14 day of May, 2021 on: April Halle, Esq. (ahalle@halleelawfirm.com), Halle Law Firm P.A., 3101 N. Federal Highway, Suite 401, Fort Lauderdale, FL 33306. By: /s/Michael T. Landen Michael T. Landen 3 KEUGER, KAPLAN, SILVERMAN, KATZEN & LEVINE, P.L., 201 So. BISCAYNE BLYD., 27" FLOOR, MIAMI, FL,33131 305.379.9000EXHIBIT AFiling # 126111247 E-Filed 05/04/2021 11:29:04 AM IN THE CIRCUIT COURT OF THE 15" JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 2021-CA-002979-XXXX-MB JUSTIN FORER, an individual, and MORGAN FORER, an individual Plaintiffs, v. M&S JASMINE PROPERTIES, LLC, a New York limited liability company, and SAMY KHALIL, an individual Defendants. NOTICE OF PRODUCTION FROM NON-PARTY TO: Michael Landen, Esq. (Mlanden@klugerkaplan.com) YOU ARE HEREBY NOTIFIED, pursuant to Florida Rules of Civil Procedure 1,351, that after ten (10) days from the date of service of this Notice, the undersigned will issue the attached Subpoena directed to Old Republic National Title Insurance Co., a non-party, requiring the production of the specified items set forth in the Subpoena Duces Tecum (Without Deposition). CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed and served via the Florida Courts E-Filing Portal on May 4, 2021, to Michael S. Perse, Esq. and Michael T. Landen, Esq., Kluger, Kaplan, Silverman, Katzen & Levine, P.L. 201 South Biscayne Blvd, Miami, Florida 33131, Email: mperse@klugerkaplan.com and mlanden@klugerkaplan.com. Page 1 of 2THE HALLE LAW FIRM, P.A. Counsel! for M&S Jasmine Properties, LLC 3101 N. Federal Highway, Suite 401 Fort Lauderdale, FL 33306 (954) 537-0466 telephone (954) 537-0467 facsimile Primary Email: ahalle@hallelawfirm.com Secondary Email: admin@hallelawfirm.com /s/ April 1. Halle : APRIL I. HALLE Florida Bar No. 0059145 Page 2 of 2IN THE CIRCUIT COURT OF THE 15" JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 2021-CA-002979-XXXX-MB JUSTIN FORER, an individual, and MORGAN FORER, an individual Plaintiffs, v. M&S JASMINE PROPERTIES, LLC, a New York limited liability company, and SAMY KHALIL, an individual Defendants. / DUCE HO) TO: Old Republic National Title Insurance Co. Chief Financial Officer, Registered Agent 200 E. Gaines Street P.O. Box 6200 Tallahassee, FL 32399 YOU ARE COMMANDED to deliver to Law Offices of April I. Halle, Esq., within ten (10) days of service or delivery of this subpoena, the items on the attached Exhibit "A" along with the completed Declaration of Custodian of Records. You may comply with this subpoena by providing legible copies of the items to be produced to the attorney whose name appears on this subpoena by mail or delivery. You may condition the preparation of the copies upon payment, in advance, of the reasonable cost of preparing the copies. You have the right to object to the production pursuant to this subpoena at any time before production, by giving written notice to the attorney whose name appears on this subpoena. You will not be required to surrender any of the documents or things requested. If you fail to furnish the records as provided above or timely object to this subpoena you may be in contempt of court. You are subpoenaed by the attorney whose name appears below and unless excused from the subpoena by the attorney or by the Court, you shall respond to the subpoena as directed. Page 1 of 4NO TESTIMONY WILL BE TAKEN Gril I Hale April I. Halle, Esq. FBN:0059145 Page 2 of 4DEFINITIO} For purposes of this Subpoena, the following definitions apply: A. The term “you” or “your” refers to the entity to which this Subpoena is directed and any and all of its representatives (as defined herein). B. The term “representative” means any and all present and former agents, employees, servants, officers, directors, attorneys, or other persons acting or purporting to act on behalf of the person question. Cc The term “person” means all individuals, entities, firms, organizations, groups, committees, regulatory agencies, governmental entities, business entities, corporations, partnerships, trusts, and estates. D, The term “Contract” shall mean the “AS IS” Residential Contract for Sale and Purchase between M&S Jasmine Properties, LLC (“Seller”) and Justin and Morgan Forer (“Buyer”) for the transaction located at 920 Jasmine Drive, Delray Beach, FL 33483. E. The term “Buyer” shall mean Justin Forer and Morgan Forer and any and all of its representatives. F. The term “Seller” shall mean M&S Jasmine Properties, LLC and any and all of its representatives. G. The term "document" shall have the broadest meaning permitted by the Florida Rules of Civil Procedure and shall include, without limitation, all written, graphic, electronically stored information or otherwise recorded material, no matter how produced or reproduced, of any nature whatsoever, and all copies thereof in your possession, custody or control, regardless of where located. The items requested, include without limitation, any and all documents and electronically stored information to be produced in printed form. H. The term “communication(s)” shall mean every manner or method of disclosure, exchange of information, statement, or discussion between or among two or more persons, including but not limited to, face-to-face and telephone conversations, correspondence, memoranda, telegrams, facsimiles, emails messages, transcribed voice-mail messages, text messages, meeting, discussions, releases, statements, reports, publications, or any recording or reproductions thereof. L The connectives “and” and “or” shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses which might otherwise be construed to be outside of its scope. J The term “relating to” means in any way directly or indirectly, concerning, referring to, disclosing, describing, confirming, constituting, discussing, supporting, evidencing, or representing information bearing upon the matter.SCHEDULE “A” Your entire file relating to the transaction between Seller and Buyer for the sale and purchase of the property located at 920 Jasmine Drive, Delray Beach, FL 33483. All documents relating to the Contract. All documents relating to you providing title insurance to Buyer under the Contract. All communications between you and Buyer. All documents exchanged between you and Buyer. All documents reflecting your requirements to insure title to the Buyer for the property located at 920 Jasmine Drive, Delray Beach, FL 33483, including, but not limited, your emails and other communications transmitting your loan approval to Buyer. For all documents, provide date and timestamp details. Page 1 of 2DECLARATION OF CUSTODIAN OF RECORDS MADE PURSUANT TO FLA. STAT. §90,803(6) I, (name). declare that I am a designated duly authorized Custodian of Records for documents and/or information produced by (Organization) reserves its right to designate another Custodian, as it deems appropriate in the event an actual appearance is required concerning the records or information produced herein. I verify that the records produced herewith were: A. Made at or near the time of the occurrence, condition or event of the matters set forth by, or from information transmitted by, a person with knowledge of those matters. B. Kept in the course of regularly conducted activity; and Cc. Made as a regular practice in the course of the regularly conducted activity by the personnel of the business. The enclosed records are true copies of records made and kept by as described in the subpoena or other legal order. I declare under penalty of perjury that the foregoing is true and correct. Executed on this day of. 7 , inthe City of. , State of Page 2 of 2Filing # 126111247 E-Filed 05/04/2021 11:29:04 AM IN THE CIRCUIT COURT OF THE 15" JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA. CASE NO.: 2021-CA-002979-XXXX-MB JUSTIN FORER, an individual, and MORGAN FORER, an individual Plaintiffs, v. M&S JASMINE PROPERTIES, LLC, a New York limited liability company, and SAMY KHALIL, an individual Defendants. NOTICE OF PRODUCTION FROM NON-PARTY TO: Michael Landen, Esq. (Mlanden@klugerkaplan.com) YOU ARE HEREBY NOTIFIED, pursuant to Florida Rules of Civil Procedure 1.351, that after ten (10) days from the date of service of this Notice, the undersigned will issue the attached Subpoena directed to Better Mortgage Corporation, a non-party, requiring the production of the specified items set forth in the Subpoena Duces Tecum (Without Deposition). CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed and served via the Florida Courts E-Filing Portal on May 4, 2021, to Michael S. Perse, Esq. and Michael T, Landen, Esq., Kluger, Kaplan, Silverman, Katzen & Levine, P.L. 201 South Biscayne Blvd, Miami, Florida 33131, Email: mperse@klugerkaplan.com and mlanden@klugerkaplan.com. Page 1 of 2THE HALLE LAW FIRM, P.A. Counsel for M&S Jasmine Properties, LLC 3101 N, Federal Highway, Suite 401 Fort Lauderdale, FL 33306 (954) 537-0466 telephone (954) 537-0467 facsimile Primary Email: ahalle@hallelawfirm.com Secondary Email: admin@hallelawfirm.com /s/ April J. Halle 7 APRIL I. HALLE Florida Bar No. 0059145 Page 2 of 2IN THE CIRCUIT COURT OF THE 15% JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 2021-CA-002979-XXXX-MB JUSTIN FORER, an individual, and MORGAN FORER, an individual Plaintiffs, v. M&S JASMINE PROPERTIES, LLC, a New York limited liability company, and SAMY KHALIL, an individual Defendants. / DI C 01 POSITI TO: Better Mortgage Corporation Business Filings Incorporated, Registered Agent 1200 South Pine Island Road Plantation, FL 33324 YOU ARE COMMANDED to deliver to Law Offices of April 1. Halle, Esq., within ten (10) days of service or delivery of this subpoena, the items on the attached Exhibit "A" along with the completed Declaration of Custodian of Records. You may comply with this subpoena by providing legible copies of the items to be produced to the attorney whose name appears on | ' i i \ i this subpoena by mail or delivery. You may condition the preparation of the copies upon payment, in advance, of the reasonable cost of preparing the copies. You have the right to object i to the production pursuant to this subpoena at any time before production, by giving written notice to the attorney whose name appears on this subpoena. You will not be required to surrender any of the documents or things requested. | Ifyou fail to furnish the records as provided above or timely objectto this subpoena you i may be in contempt of court. You are subpoenaed by the attorney whose name appears below and unless excused from the subpoena by the attorney or by the Court, you shall respond to the subpoena as directed. Page | of 3NO TESTIMONY WILL BE TAKEN Gril I Halle April I. Halle, Esq. FBN:0059145 Page 2 of 3DEFINITIONS For purposes of this Subpoena, the following definitions apply: A. The term “you” or “your” refers to the entity to which this Subpoena is directed and any and all of its representatives (as defined herein). B. The term “representative” means any and all present and former agents, employees, servants, officers, directors, attorneys, or other persons acting or purporting to act on behalf of the person question. Cc. The term “person” means all individuals, entities, firms, organizations, groups, committees, regulatory agencies, governmental entities, business entities, corporations, partnerships, trusts, and estates. D. The term “Contract” shall mean the “AS IS” Residential Contract for Sale and Purchase between M&S Jasmine Properties, LLC (“Seller”) and Justin and Morgan Forer (“Buyer”) for the transaction located at 920 Jasmine Drive, Delray Beach, FL 33483. E. The term “Buyer” shall mean Justin Forer and Morgan Forer and any and all of its representatives. F. The term “Seller” shall mean M&S Jasmine Properties, LLC and any and all of its representatives. G. The term "document" shall have the broadest meaning permitted by the Florida Rules of Civil Procedure and shall include, without limitation, all written, graphic, electronically stored information or otherwise recorded material, no matter how produced or reproduced, of any nature whatsoever, and all copies thereof in your possession, custody or control, regardless of where located. The items requested, include without limitation, any and all documents and electronically stored information to be produced in printed form. H. The term “communication(s)” shall mean every manner or method of disclosure, exchange of information, statement, or discussion between or among two or more persons, including but not limited to, face-to-face and telephone conversations, correspondence, memoranda, telegrams, facsimiles, emails messages, transcribed voice-mail messages, text messages, meeting, discussions, releases, statements, reports, publications, or any recording or reproductions thereof. IL The connectives “and” and “or” shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the discovery request all responses which might otherwise be construed to be outside of its scope. J The term “relating to” means in any way directly or indirectly, concerning, referring to, disclosing, describing, confirming, constituting, discussing, supporting, evidencing, or representing information bearing upon the matter.SCHEDULE “A” Your entire file relating to the transaction between Seller and Buyer for the sale and purchase of the property located at 920 Jasmine Drive, Delray Beach, FL 33483. All documents relating to the Contract, All documents relating to you providing financing to Buyer under the Contract. All communications between you and Buyer. All documents exchanged between you and Buyer. All documents reflecting your approval of any and all loans to Buyer for the property located at 920 Jasmine Drive, Delray Beach, FL 33483, including, but not limited, your emails and other communications transmitting your loan approval to Buyer. For ali documents, provide date and timestamp details. Page | of 2DECLARATION OF CUSTODIAN OF RECORDS MADE PURSUANT TO FLA. STAT. §90,803(6) J, (name). declare that I am a designated duly authorized Custodian of Records for documents and/or information produced by (Organization) reserves its right to designate another Custodian, as it deems appropriate in the event an actual appearance is required concerning the records or information produced herein. I verify that the records produced herewith were: A. Madeat or near the time of the occurrence, condition or event of the matters set forth by, or from information transmitted by, a person with knowledge of those matters. B. Kept in the course of regularly conducted activity; and on Made as a regular practice in the course of the regularly conducted activity by the personnel of the business. The enclosed records are true copies of records made and kept by , as described in the subpoena or other legal order. I declare under penalty of perjury that the foregoing is true and correct. Executed on this day of. 7 , inthe City of, , State of Page 2 of 2