Preview
FILED: QUEENS COUNTY CLERK 08/25/2022 10:55 AM INDEX NO. 719600/2019
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/25/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
------------------------------------- x
:
:
MICHAEL LI, individually and derivatively on : ORDER WITH NOTICE OF ENTRY
behalf of FLUSHING ENDOSCOPY CENTER., :
LLC, :
: Index No. 719600/2019
:
Plaintiff, :
:
:
-against- :
:
:
KING-CHEN HON, ALAN C. YAO, JACKSON :
:
KUAN, LANA CHOY, FLUSHING ENDOSCOPY
:
CENTER, LLC, :
:
Defendants.
------------------------------------- X
PLEASE TAKE NOTICE that annexed hereto is a true and correct copy of the Short Form
Order of the Honorable Sally E. Unger, Justice of the Supreme Court of the State of New York,
County of Queens, signed on August 22, 2022, and entered in the Office of the Queens County
Clerk on August 24, 2022.
Dated: Great Neck, New York GARFUNKEL WILD, P.C.
August 25, 2022 Attorneys for Defendants
By: /s/ Andrew L. Zwerling
Andrew L. Zwerling
Jason Y. Hsi
Marky A. Suazo
111 Great Neck Road
Great Neck, New York 11021
(516) 393-2200
6573391v.2
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FILED:
FILED: QUEENS
QUEENS COUNTY
COUNTY CLERK
CLERK 08/24/2022
08/25/2022 04:39
10:55 PM
AM INDEX
INDEX NO.
NO. 719600/2019
719600/2019
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 85
86 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 08/24/2022
08/25/2022
Short Form Order
NEW YORK SUPREME COURT - QUEENS COUNTY
FILED
8/24/2022
Present: Hon. Sally E. Unger IA Part 24 COUNTY CLERK
A.J.S.C. QUEENS COUNTY
----------------------------------------------------------------x
MICHAEL LI, individually and derivatively on Index Number: 719600/2019
behalf of FLUSHING ENDOSCOPY CENTER,
LLC., Motion Date: March 31, 2022
Plaintiff,
Motion Seq. No. 3
-against-
KING-CHEN HON, ALAN C. YAO, JACKSON
KUAN, LANA CHOY and FLUSHING
ENDOSCOPY CENTER, LLC.,
Defendants.
----------------------------------------------------------------x
The following numbered papers were read on this motion by the plaintiff for partial
summary judgment on his second cause of action and on his first and sixth causes of
action with respect to liability only.
Papers Numbered
Notice of Motion - Affidavits - Exhibits......... .............................. EF 48-65
Answering Affidavits - Exhibits.................. ................................. EF 69-80
Reply Affidavits................................. ......................................... EF 81-84
Upon the foregoing papers it is ordered that the motion is determined as follows:
The plaintiff, Michael Li (hereinafter “Li”), individually and derivatively on behalf of
Flushing Endoscopy Center, LLC, (hereinafter “Flushing Endoscopy”) commenced the
instant action, among other things, to recover damages for an alleged breach of contract.
Flushing Endoscopy is a manager managed limited liability company pursuant to an
operating agreement (hereinafter “Agreement”). The founding members of Flushing
Endoscopy are Li, King-Chen Hon (hereinafter “Hon”), Alan C. Yao (hereinafter “Yao”),
Jackson Kuan (hereinafter “Kuan”), Sing Chan (hereinafter “Chan”), Che-Nan Chuang
(hereinafter “Chuang”), and Frontier Healthcare Associates (hereinafter “Frontier”).
Pursuant to the original Agreement, the board of managers (hereinafter “Board”) consists
of the founding members. To terminate a member of the Board, a supermajority is
required. Pursuant to the company’s Third Amendment to its Agreement, dated June 1,
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2017, a supermajority of the Board is defined as the lesser of (a) the holders of at least
71% of issued and outstanding membership interests of the company, or (b) 6 out of 7
members of the Board.
At a special meeting held on July 15, 2019, a vote was held regarding the expulsion of Li.
Hon, Yao, Chuang, and Frontier’s successor Physicians Endoscopy Healthcare
Associates (hereinafter “PE”) attended in person and voted to expel Li. Kuan appeared
at the meeting virtually, his wife Lana Choy (hereinafter “Choy”) attended in person, and
the defendants contend that Choy voted by proxy on behalf of Kuan for Li’s expulsion. Li
attended in person and voted against his expulsion. Chan did not attend and did not vote.
Li contends that he was improperly expelled from the company insofar as the terms of the
Agreement were not met to terminate him. Specifically, he argues that the holders of at
least 71% of membership interests did not vote for his expulsion as required. And since
he holds 34% of the outstanding shares, the largest membership interest, this could not
occur without his vote. Nor did 6 out of 7 members of the board properly vote, i.e. another
alternative, since Chan was a member at the time of the meeting and was not present.
Li now moves for summary judgment on his first cause of action individually against Hon,
Yao, and Kuan (hereinafter “member defendants”) for breach of contract upon his claim
that he was improperly expelled pursuant to the terms of the Third Amendment to the
Agreement; on his second cause of action individually against the member defendants
for a declaratory judgment that he was not properly expelled and remains a member and
a manager; and on his sixth cause of action individually against the member defendants
for conversion of his membership interests.
To succeed on his motion for summary judgment on the abovementioned causes of
action, Li “must make a prima facie showing of entitlement to judgment as a matter of law,
tendering sufficient evidence to demonstrate the absence of any material issues of fact
from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316
[1985]). Here, the plaintiff fails to do so. Plaintiff’s submissions regarding when Chan
ceased to be a member of the company raise issues of fact.
Initially, Li maintains that he was not properly expelled from Flushing Endoscopy on the
ground that, at the time of the vote, Chan was still a member of Flushing Endoscopy. He
relies upon the provision of the Third Amendment to the Agreement that requires a vote
of 6 out of 7 members. However, numerous questions of fact exist as to when Chan’s
membership terminated. By correspondence dated December 7, 2018, Chan’s counsel
advised Flushing Endoscopy and the existing members of Chan’s withdrawal. Thereafter,
Chan and Flushing Endoscopy entered into a redemption agreement dated March 13,
2019 (hereinafter “Redemption Agreement”), which states, in relevant part:
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FILED: QUEENS
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1. Purchase of Sale Of Membership Interests
(a) The parties hereto agree that, upon execution of this Agreement, Seller
shall sell, and Company shall purchase, the Purchased Interests in
consideration of Three Hundred Eighty-One Thousand Nine Hundred Fifty-
Seven Dollars ($381,957).
(b) Upon consummation of the Transactions on the Effective Date, the
Company’s ownership shall be as follows:
MEMBER PERCENTAGE INTEREST
KING-CHEN HON, M.D. .............................................. 13%
ALAN C. YAO, M.D. .............................................. 29%
MICHAEL LI, M.D. .............................................. 34%
JACKSON KUAN, M.D. ................................................ 9%
SING CHAN, M.D. ................................................ 0%
CHE-NAN CHUANG, M.D. .............................................. 10%
PE HEALTHCARE ASSOCIATES, LLC............................. 5%
In his supporting affidavit, Li argues that the “Effective Date” was not defined in the
Redemption Agreement. Rather, he maintains that the terms of the Redemption
Agreement require that it be interpreted in accordance with New York Public Health Law
§2801-a(4)(b)(iii). This provision of the New York Public Health Law provides that:
With respect to a transfer...of an interest...in such limited liability company
to any remaining partner or member, which transaction involves the
withdrawal of the transferor from the partnership or limited liability
company...no such transaction shall be effective unless at least ninety days
prior to the intended effective date thereof,...the limited liability company
fully completes and files with the public health and health planning council
notice on a form...which shall disclose such information as may be
reasonably necessary for the public health and health planning council to
determine whether it should bar the transaction...Within ninety days from
the date of receipt of such notice, the public health and health planning
council may bar the transaction under this subparagraph if the equity
position of the...limited liability company...would be reduced as a result of
the transfer, assignment or disposition.
The plaintiff contends that Flushing Endoscopy did not submit a transfer notice to New
York State in accordance with New York Public Health Law §2801-a(4)(b)(iii) until June
6, 2019 and received an approval letter dated September 18, 2019. In an affidavit
submitted by Chan, he maintains that the redemption of his membership interests and his
withdrawal as a manager became final in September 2019. Further, the plaintiff contends
that, based upon certain filings with the Internal Revenue Service, Chan remained a
member of Flushing Endoscopy and the Board until November 23, 2019.
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FILED: QUEENS
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Based upon Li’s own submissions in his moving papers, questions of fact exist as to
whether Chan was still a member of Flushing Endoscopy at the time of the July 15, 2019,
meeting, and whether Chan’s vote was required pursuant to the terms of the Third
Amendment to the Agreement. Summary judgment must be denied where a plaintiff has
not eliminated all questions of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 508
NYS2d 923 [1986]; Winegrad at 853). In light of the foregoing, the court cannot yet fully
address the parties’ contractual arguments.
Accordingly, the plaintiff’s motion is denied.
Dated: August 22, 2022
FILED
8/24/2022 _______________________
COUNTY CLERK SALLY E. UNGER, A.J.S.C.
QUEENS COUNTY
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ENCINO NEWCASTLE HOMEOWNERS ASSOCIATION VS DEL SOL PROPERTY MANAGEMENT, INC., ET AL.
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Hearing Date:
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Dept:
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Superior Court of California
¿
County of Los Angeles
¿
Department 78
¿
¿
ENCINO NEWCASTLE HOMEOWNERS ASSOCIATION
,
Plaintiff
(s)
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s
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10
, 2024
[TENTATIVE]
ORDER
CONTINUING MOTION FOR
OSC RE:
CONTEMPT
On May 15, 2024, defendant/cross-complainant D
el Sol Property Management, Inc.
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filed the instant motion for an OSC Re: Contempt based on
non-party
HOA Management Professionals, Inc.s
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purported failure to produce business records
pursuant
to
a subpoena issued on December 29, 2023
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he hearing date
is set
for July 10, 2024.
On May 28, 2024,
HMP
filed a motion to quash the
December 29,
2023
deposition subpoena for production of business records
issued by Del Sol
. The hearing date is set for August 13, 2024.
Considering the relationship between Del Sols motion for contempt, and HMPs motion to quash its underlying basis, the Court
finds it in the interest of judicial efficiency and economy to continue Del Sols motion to be heard at the same time as HMPs related motion.
Therefore, on its own motion, the Court
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Del Sols
Hearing on Motion for an Order to Show Cause Re: Contempt (CCP 1209)
to
August 13,
2024
at
8
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a
.m. in Department 78 of Stanley Mosk Courthouse.
Moving Party is ordered to give notice
.
DATED:
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9
, 2024
__________________________
Hon.
Michelle C. Kim
Judge of the Superior Court
PLEASE TAKE NOTICE:
"
Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
"
If a party intends to
submit
on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line SUBMIT followed by the case number. The body of the email must include the hearing date and time, counsels contact information, and the identity of the party
submitting
.
"
Unless all parties
submit
by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.
"
If the parties neither
submit
nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.
Ruling
JUSTIN SMITH VS ALLA ZORIKOVA, ET AL.
Jul 12, 2024 |
24STCV04100
Case Number:
24STCV04100
Hearing Date:
July 12, 2024
Dept:
32
JUSTIN SMITH,
Plaintiff,
v.
ALLA ZORIKOVA, et al.,
Defendants.
Case No.:
24STCV04100
Hearing Date:
July 12, 2024
[
TENTATIVE] order RE:
defendant alla zorikovas demurrer to complaint
BACKGROUND
On February 20, 2024, Plaintiff Justin Smith filed this action against Defendants Alla Zorikova, Olivia Jeong, and Joycelyn Yew. The complaint asserts causes of action for (1) violation of the Consumer Legal Remedies Act (CLRA), (2) violation of the Unfair Competition Law (UCL), and (3) fraud.
Plaintiff alleges that Defendants run an illegal dog breeding operation and operate out of Defendant Lews home in Los Angeles. Plaintiff alleges that Defendants falsely advertise their dogs as healthy, trained, and top quality. Plaintiff allegedly purchased a puppy from Defendants that turned out to be sick, dirty, and not properly socialized. Plaintiff allegedly contacted Defendant Zorikova for a refund, and Defendant Zorkova allegedly refused, instead instructing Plaintiff to sell the dog to another buyer himself.
On June 20, 2024, Defendant Zorikova filed the instant demurrer to the complaint. Plaintiff has not filed an opposition.
DISCUSSION
Proof of electronic service shall include
all
of the following:
(1) The electronic service address and the residence or business address of the person making the electronic service.
(2) The date of electronic service.
(3) The name and electronic service address of the person served.
(4) A statement that the document was served electronically.
(Code Civ. Proc., § 1013b(b).)
The proof of service accompanying Defendants demurrer does not include the electronic service address of the person making the electronic service,
i.e.
, Defendant Zorikova. (See Code Civ. Proc., § 1013b(b)(1).) Furthermore, the proof of service is ambiguous as to whether the documents were served by mail or email. The proof attests that the documents were served on counsel for all parties who have appeared in this action as follows, on 06/18/2024 via email, but simultaneously states that documents were SENT VIA U.S. MAIL/EMAIL. If the documents were mailed, it would be improper for Defendant Zorikova to execute the service because she is a party to the action. (See Code Civ. Proc., § 1013a(a) [person executing mail service must be over the age of 18 years and
not a party to the cause
].)
The demurrer is overruled for lack of proper service.
CONCLUSION
Defendant Alla Zorikovas demurrer is OVERRULED.
JUSTIN SMITH,
Plaintiff,
v.
ALLA ZORIKOVA, et al.,
Defendants.
Case No.: 24STCV04100
Hearing Date: July 12, 2024
[
TENTATIVE]
order RE:
defendant alla zorikovas motion to
quash service of summons
BACKGROUND
On February 20, 2024, Plaintiff
Justin Smith filed this action against Defendants Alla Zorikova, Olivia Jeong,
and Joycelyn Yew. The complaint asserts causes of action for (1) violation of
the Consumer Legal Remedies Act (CLRA), (2) violation of the Unfair Competition
Law (UCL), and (3) fraud.
Plaintiff alleges that Defendants
run an illegal dog breeding operation and operate out of Defendant Lews home
in Los Angeles. Plaintiff alleges that Defendants falsely advertise their dogs
as healthy, trained, and top quality. Plaintiff allegedly purchased a puppy
from Defendants that turned out to be sick, dirty, and not properly socialized.
Plaintiff allegedly contacted Defendant Zorikova for a refund, and Defendant
Zorkova allegedly refused, instead instructing Plaintiff to sell the dog to
another buyer himself.
On June 21, 2024, Defendant Zorikova
filed the instant motion to quash based on defective service of the summons and
complaint. Plaintiff has not filed an opposition.
LEGAL STANDARD
[T]he court in which an action is pending
has jurisdiction over a party from the time summons is served on him as
provided by Chapter 4 (commencing with Section 413.10). (Code Civ. Proc, §
410.50(a).) [A] court acquires jurisdiction over a party by proper service of
process or by that party's general appearance. (
In re Jennifer O.
(2010) 184 Cal.App.4th 539, 547.) Actual notice of a lawsuit is not a
substitute for proper service of process. (
Abers v. Rohrs
(2013) 217
Cal.App.4th 1199, 1206.) A defendant may serve and file a notice of motion to
quash service of summons on the ground that the court lacks jurisdiction. (Code
Civ. Proc., § 418.10(a).)
DISCUSSION
Even without proper service, a
defendant who makes a general appearance submits to the jurisdiction of the
court and waives any challenge to personal jurisdiction. (See
In re Jennifer
O., supra,
184 Cal.App.4th at p. 547;
ViaView, Inc. v. Retzlaff
(2016) 1 Cal.App.5th 198, 210.)
Code of Civil Procedure section 1014 lists
the acts which constitute a general appearance. (
Air Machine Com SRL v.
Superior Court
(2010) 186 Cal.App.4th 414, 425;
Humphrey v. Bewley
(2021) 69 Cal.App.5th 571, 580.) Section 1014 provides as follows: A defendant
appears in an action when the defendant answers,
demurs
, files a
notice of motion to strike, files a notice of motion to transfer pursuant to
Section 396b, moves for reclassification pursuant to Section 403.040, gives the
plaintiff written notice of appearance, or when an attorney gives notice of
appearance for the defendant. (Code Civ. Proc., § 1014.)
Defendant Zorikova filed a demurrer
on June 20, 2024, thus making a general appearance and consenting to the
Courts jurisdiction. As a result, the motion to quash is moot.
CONCLUSION
Defendant Alla Zorikovas motion to
quash service of summons is DENIED.
Ruling
Tpine Leasing Capital L.P. vs. Jarnail Multani
Jul 10, 2024 |
23CECG03197
Re: Tpine Leasing Capital L.P. v. Jarnail Multani
Superior Court Case No. 23CECG03197
Hearing Date: July 10, 2024 (Dept. 501)
Motion: by Defendant to Set Aside Default and Default Judgment
Tentative Ruling:
To deny the motion to set aside default and default judgment without prejudice.
(Code Civ. Proc., § 473, subd. (b).)
Explanation:
No Copy of Proposed Pleading
Application for relief from a judgment or court order must be filed timely (within six
months of the judgment or order) and must be accompanied by a copy of the answer
or other proposed pleading to be filed. (Code Civ. Proc., § 473 subd. (b).)
Here, defendant’s default was taken October 19, 2023, and judgment was
entered against him on March 21, 2024. Defendant filed this motion on April 22, 2024.
Defendant’s application was timely. However, defendant did not provide a proposed
responsive pleading pursuant to code.
No Mistake, Inadvertence, Surprise or Excusable Neglect
A judgment may be vacated and so may the entry of default that preceded it.
(Code Civ. Proc., § 473 subd. (b).) The court is empowered to relieve a party “upon any
terms as may be just … from a judgment, dismissal, order, or other proceeding taken
against him or her through his or her mistake, inadvertence, surprise, or excusable
neglect.” (Id.) This decision lies in the discretion of the court, and can only be exercised
if the moving party establishes a proper ground for relief, by the proper procedure, and
within the time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.)
Here, defendant did not demonstrate that his failure to respond was due to
mistake, inadvertence, surprise or excusable neglect. He stated that he learned of the
default entered against him but “was not aware of the nature of any pending litigation.”
(Multani Decl., ¶ 4.) Defendant incorrectly stated that the default should be “set aside
due to his mistake…in not responding to the lawsuit.” (Id.) He described no specific
mistake, inadvertence, surprise or excusable neglect that led to him not responding.
Defendant briefly stated that he was improperly served, however did not establish it as a
valid reason for not responding to the Complaint.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: DTT on 7/9/2024 .
(Judge’s initials) (Date)
Ruling
Richard Bartel vs Chicago Title Insurance Company
Jul 10, 2024 |
16CV02814
16CV02814
BARTEL v. CHICAGO TITLE INSURANCE COMPANY
(UNOPPOSED) PLAINTIFF BARTEL’S MOTION TO TAX COSTS
Given the parties representation that they are finalizing a stipulation, no tentative will be
posted.
Page 3 of 3
Ruling
KAREN BANG, ET AL. VS DILL VETERINARY HOSPITAL, INC., ET AL.
Jul 10, 2024 |
22STCV28025
Case Number:
22STCV28025
Hearing Date:
July 10, 2024
Dept:
53
Superior Court of California
County of Los Angeles Central District
Department 53
karen bang
, et al.;
Plaintiffs,
vs.
dill veterinary hospital, inc.
, et al.;
Defendants
.
Case No.:
22STCV28025
Hearing Date:
July 10, 2024
Time:
10:00 a.m.
[tentative] Order
RE:
plaintiffs motion to continue trial
MOVING PARTIES:
Plaintiffs Karen Bang and Linda Agajanian Otey
RESPONDING PARTIES:
Defendants Dill Veterinary Hospital, Inc., and Amber Oliver
Motion to Continue Trial
The court considered the moving, opposition, and reply papers filed in connection with this motion.
DISCUSSION
Plaintiffs Karen Bang and Linda Agajanian Otey (Plaintiffs) move the court for an order continuing trial in this action, currently scheduled to begin on August 14, 2024, and all related deadlines.
Defendants Dill Veterinary Hospital, Inc., and Amber Oliver (Defendants) have filed an opposition to Plaintiffs motion, stating that, while they do not oppose a brief trial continuance of 30-60 days, they oppose Plaintiffs request to continue all discovery and trial-related deadlines.
The court finds that Plaintiffs have shown good cause to continue the trial and all related deadlines based on (1) the unavailability of Plaintiffs lead counsel on August 14, 2024, (2) Plaintiffs counsels representation that the parties are in the process of scheduling various depositions, and (3) the courts consideration of the factors set forth in California Rules of Court, rule 3.1332, subdivision (d), including that (i) there have not been any prior continuances of trial, (ii) Defendants will not be unduly prejudiced by the continuance of trial and related deadlines, (iii) Plaintiffs lead counsel will be engaged in another multi-week trial, and (iv) the interests of justice favor the continuance.
(Cal. Rules of Ct., rule 3.1332, subds. (c)(3), (c)(6), (d)(2), (d)(5), (d)(8), (d)(10); Lipps Decl., ¶¶ 1, 2-3.)
The court therefore grants Plaintiffs motion and makes the orders set forth below.
ORDER
The court grants plaintiffs Karen Bang and Linda Agajanian Oteys motion to continue trial.
The court orders:
1.
The trial in this action is continued from August 14, 2024, to March 12, 2025, at 11:00 a.m., in Department 53.
2.
The Final Status Conference is continued from August 2, 2024, to February 27, 2025, at 8:30 a.m., in Department 53.
3.
All
discovery cut-off and discovery motion cut-off dates, and deadlines for the exchange of information concerning expert trial witnesses shall be based on the new trial date.¿
4.
The parties and their counsel shall hold a meeting, conference call, or videoconference to discuss and try to settle all issues in the case no later than January 17, 2025.
The court orders plaintiffs Karen Bang and Linda Agajanian Otey to give notice of this ruling.
IT IS SO ORDERED.
DATED:
July 10, 2024
_____________________________
Robert B. Broadbelt III
Judge of the Superior Court
Ruling
CALIFORNIA CREDITS GROUP, LLC, A DELAWARE LIMITED LIABILITY COMPANY VS FOSTER POULTRY FARMS, LLC, ET AL.
Jul 10, 2024 |
23STCV09536
Case Number:
23STCV09536
Hearing Date:
July 10, 2024
Dept:
54
Superior Court of California
County of Los Angeles
California Credits Group, LLC,
Plaintiff,
Case No.:
23STCV09536
vs.
Tentative Ruling
Foster Poultry Farms, LLC f/k/a Foster Poultry Farms, et al.,
Defendants.
Hearing Date: July 10, 2024
Department 54, Judge Maurice Leiter
Motion To Compel Further Responses to Requests for Production of Documents
Moving Party
: Plaintiff California Credits Group, LLC
Responding Party
: Defendant Foster Poultry Farms, LLC
T/R
:
THE MOTION IS GRANTED IN PART.
PLAINTIFF TO GIVE 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 California Credits Group, LLC sued defendants Foster Poultry Farms, LLC and Foster Farms, LLC on April 28, 2023 for breach of contract and breach of the covenant of good faith and fair dealing.
As alleged in its complaint, Plaintiff provides tax credit services with a primary focus on California Enterprise Zone credits. (Compl., ¶ 9.) Defendant Foster Poultry was one of Plaintiffs clients; Defendant Foster Farms acquired Foster Poultry in June 2022. (
Id.
, ¶¶ 11-13.) Under the contract, Plaintiff would locate employees for Foster Poultry who, once employed, would generate tax credits for Foster Poultry based on Enterprise Zone economic incentives. (
Ibid.
) Foster Poultry agreed to pay Plaintiff a portion of the credits generated when the credits were utilized, that is, when they were actually applied to reduce Foster Poultrys tax obligations. (
Id.
, ¶ 14-15, Exhs. A-B [initial 2005 and amended 2007 contracts].)
The Contract anticipated the possibility that Foster Poultry might be acquired, and there may be tax credits that had been
generated
by Plaintiffs recommended hires, but not yet
utilized
. (
Id.
, ¶ 20.) Those credits utility might be cut off by an acquisition. (
Id.
, ¶¶ 21-22.)
In that case, the contract required that all pending credits be deemed utilized, and Plaintiff paid for their use, upon Foster Poultrys acquisition. (
Id.
, ¶ 22.)
The private equity firm Atlas Holdings, Inc. acquired Foster Poultry in June 2022. (
Id.
, ¶¶ 4-5.) The transaction was structured so that Foster Poultrys co-defendant, Foster Farms, acquired Foster Poultry, and Atlas in turn acquired Foster Farms. (
Id.
, ¶ 5.) Plaintiff alleges that when Atlas acquired Foster Poultry, it cut off $70 million in outstanding, unutilized tax credits generated by Plaintiff. (
Id.
, ¶ 30.)
On May 17, 2024, Plaintiff filed the instant motion to compel further responses to its Requests for Production (Set One) propounded on Foster Poultry.
ANALYSIS
Plaintiff moves for further responses to its Requests for Production (RPDs) Nos. 9-11 and 40. Plaintiff frames these as requests for communications relating to the June 2022 reorganizing transactions that suspended the tax credits allocated by [Plaintiff]. (MPA, 4:22-23.) Plaintiff contends these documents must be produced because they are critical to understanding the scope and significance of the June 2022 transactions and determining whether they constitute a Reorganization under the parties Agreements. (
Id.
, 26-28.)
Defendant argues that communications involving the June 2022 transactions are irrelevant to whether the transaction was a Reorganization for purposes of the parties contract. Defendant contends that all Plaintiff needs are the documents governing the transactions namely, the June 2022 Purchase Agreement (2022 Agreement). Defendant already has produced the 2022 Agreement. Defendant also objects that the requests are unduly burdensome, Plaintiff has not properly met and conferred about them, and, to the extent some portion of the materials might be relevant, Plaintiffs Requests should be narrowed after Plaintiff obtains its still-outstanding, more reasonable discovery.
Defendant has produced to Plaintiff excerpts of the 2022 Agreement that Plaintiff contends triggered the reorganization provisions of the Contract. Defendant contends this satisfies Plaintiffs asserted need to evaluate whether Defendants reorganization triggered the Contract.
Defendant cannot unilaterally identify what evidence Plaintiff needs. For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. [Citation.] ... [T]he scope of discovery extends to any information that reasonably might lead to other evidence that would be admissible at trial. Thus, the scope of permissible discovery is one of reason, logic and common sense. (
Lipton v. Superior Court
(1996) 48 Cal.App.4th 1599, 16111612, 56 Cal.Rptr.2d 341.)
Communications surrounding the execution of the 2022 Agreement may lead to admissible evidence about how its execution was expected to impact the terms of the Contract. Plaintiff may explore evidence of how the 2022 Agreement was executed, and whether those facts are relevant to the alleged breach.
Defendants have not shown undue burden.
Some of the phrasing of Plaintiffs requests is overbroad; the Court will sustain Defendants objections in part:
The Court grants Plaintiffs motion and orders Defendant to provide Code-compliant responses to all the disputed requests within thirty (30) days of this ruling, except:
1. Defendant need only produce documents created between June 1, 2021 and the filing of the complaint, and
2. The terms in connection with and in connection with or following are narrowed to as a result of for purposes of this order.
The Court finds Defendant was substantially justified in opposing Plaintiffs motion. The Court awards no sanctions.
Ruling
VALLEY FRESH PRODUCE, INC. vs JOSE BARRAGAN, et al
Jul 10, 2024 |
20CV01416
20CV01416
VALLEY FRESH PRODUCE, INC. v. BARRAGAN
(UNOPPOSED) MOTIONS TO BE RELIEVED AS COUNSEL
The unopposed motions to be relieved as counsel filed by Dianna L. Albini are granted as
they comply with California Rules of Court, Rule, 3.1362. The court will sign the proposed
orders.
Page 1 of 3
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.
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.
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Document
Ana Morcodeanu, Rose Markov, Igor Pinkhasov, Leonid Ilyayev v. Park City 3 And 4 Apartments, Inc., Robert Cohen, Maurice Peress, Louis Kramberg, Rajendra Jain, Vivek Malhotra, Zhanna Balkhiyeva, Mikhail Borukhov, Jonathan Tse, Deesha Tikamdas, Chandra Jain
Jun 22, 2021 |
Carmen R Velasquez
|
Other Matters - Contract - Other |
Other Matters - Contract - Other |
714151/2021
Preview
FILED: QUEENS COUNTY CLERK 08/25/2022 10:55 AM INDEX NO. 719600/2019 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 08/25/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------- x : : MICHAEL LI, individually and derivatively on : ORDER WITH NOTICE OF ENTRY behalf of FLUSHING ENDOSCOPY CENTER., : LLC, : : Index No. 719600/2019 : Plaintiff, : : : -against- : : : KING-CHEN HON, ALAN C. YAO, JACKSON : : KUAN, LANA CHOY, FLUSHING ENDOSCOPY : CENTER, LLC, : : Defendants. ------------------------------------- X PLEASE TAKE NOTICE that annexed hereto is a true and correct copy of the Short Form Order of the Honorable Sally E. Unger, Justice of the Supreme Court of the State of New York, County of Queens, signed on August 22, 2022, and entered in the Office of the Queens County Clerk on August 24, 2022. Dated: Great Neck, New York GARFUNKEL WILD, P.C. August 25, 2022 Attorneys for Defendants By: /s/ Andrew L. Zwerling Andrew L. Zwerling Jason Y. Hsi Marky A. Suazo 111 Great Neck Road Great Neck, New York 11021 (516) 393-2200 6573391v.2 1 of 5 FILED: FILED: QUEENS QUEENS COUNTY COUNTY CLERK CLERK 08/24/2022 08/25/2022 04:39 10:55 PM AM INDEX INDEX NO. NO. 719600/2019 719600/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 85 86 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/24/2022 08/25/2022 Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY FILED 8/24/2022 Present: Hon. Sally E. Unger IA Part 24 COUNTY CLERK A.J.S.C. QUEENS COUNTY ----------------------------------------------------------------x MICHAEL LI, individually and derivatively on Index Number: 719600/2019 behalf of FLUSHING ENDOSCOPY CENTER, LLC., Motion Date: March 31, 2022 Plaintiff, Motion Seq. No. 3 -against- KING-CHEN HON, ALAN C. YAO, JACKSON KUAN, LANA CHOY and FLUSHING ENDOSCOPY CENTER, LLC., Defendants. ----------------------------------------------------------------x The following numbered papers were read on this motion by the plaintiff for partial summary judgment on his second cause of action and on his first and sixth causes of action with respect to liability only. Papers Numbered Notice of Motion - Affidavits - Exhibits......... .............................. EF 48-65 Answering Affidavits - Exhibits.................. ................................. EF 69-80 Reply Affidavits................................. ......................................... EF 81-84 Upon the foregoing papers it is ordered that the motion is determined as follows: The plaintiff, Michael Li (hereinafter “Li”), individually and derivatively on behalf of Flushing Endoscopy Center, LLC, (hereinafter “Flushing Endoscopy”) commenced the instant action, among other things, to recover damages for an alleged breach of contract. Flushing Endoscopy is a manager managed limited liability company pursuant to an operating agreement (hereinafter “Agreement”). The founding members of Flushing Endoscopy are Li, King-Chen Hon (hereinafter “Hon”), Alan C. Yao (hereinafter “Yao”), Jackson Kuan (hereinafter “Kuan”), Sing Chan (hereinafter “Chan”), Che-Nan Chuang (hereinafter “Chuang”), and Frontier Healthcare Associates (hereinafter “Frontier”). Pursuant to the original Agreement, the board of managers (hereinafter “Board”) consists of the founding members. To terminate a member of the Board, a supermajority is required. Pursuant to the company’s Third Amendment to its Agreement, dated June 1, 1 2 of of 4 5 FILED: FILED: QUEENS QUEENS COUNTY COUNTY CLERK CLERK 08/24/2022 08/25/2022 04:39 10:55 PM AM INDEX INDEX NO. NO. 719600/2019 719600/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 85 86 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/24/2022 08/25/2022 2017, a supermajority of the Board is defined as the lesser of (a) the holders of at least 71% of issued and outstanding membership interests of the company, or (b) 6 out of 7 members of the Board. At a special meeting held on July 15, 2019, a vote was held regarding the expulsion of Li. Hon, Yao, Chuang, and Frontier’s successor Physicians Endoscopy Healthcare Associates (hereinafter “PE”) attended in person and voted to expel Li. Kuan appeared at the meeting virtually, his wife Lana Choy (hereinafter “Choy”) attended in person, and the defendants contend that Choy voted by proxy on behalf of Kuan for Li’s expulsion. Li attended in person and voted against his expulsion. Chan did not attend and did not vote. Li contends that he was improperly expelled from the company insofar as the terms of the Agreement were not met to terminate him. Specifically, he argues that the holders of at least 71% of membership interests did not vote for his expulsion as required. And since he holds 34% of the outstanding shares, the largest membership interest, this could not occur without his vote. Nor did 6 out of 7 members of the board properly vote, i.e. another alternative, since Chan was a member at the time of the meeting and was not present. Li now moves for summary judgment on his first cause of action individually against Hon, Yao, and Kuan (hereinafter “member defendants”) for breach of contract upon his claim that he was improperly expelled pursuant to the terms of the Third Amendment to the Agreement; on his second cause of action individually against the member defendants for a declaratory judgment that he was not properly expelled and remains a member and a manager; and on his sixth cause of action individually against the member defendants for conversion of his membership interests. To succeed on his motion for summary judgment on the abovementioned causes of action, Li “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). Here, the plaintiff fails to do so. Plaintiff’s submissions regarding when Chan ceased to be a member of the company raise issues of fact. Initially, Li maintains that he was not properly expelled from Flushing Endoscopy on the ground that, at the time of the vote, Chan was still a member of Flushing Endoscopy. He relies upon the provision of the Third Amendment to the Agreement that requires a vote of 6 out of 7 members. However, numerous questions of fact exist as to when Chan’s membership terminated. By correspondence dated December 7, 2018, Chan’s counsel advised Flushing Endoscopy and the existing members of Chan’s withdrawal. Thereafter, Chan and Flushing Endoscopy entered into a redemption agreement dated March 13, 2019 (hereinafter “Redemption Agreement”), which states, in relevant part: 2 2 3 of of 4 5 FILED: FILED: QUEENS QUEENS COUNTY COUNTY CLERK CLERK 08/24/2022 08/25/2022 04:39 10:55 PM AM INDEX INDEX NO. NO. 719600/2019 719600/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 85 86 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/24/2022 08/25/2022 1. Purchase of Sale Of Membership Interests (a) The parties hereto agree that, upon execution of this Agreement, Seller shall sell, and Company shall purchase, the Purchased Interests in consideration of Three Hundred Eighty-One Thousand Nine Hundred Fifty- Seven Dollars ($381,957). (b) Upon consummation of the Transactions on the Effective Date, the Company’s ownership shall be as follows: MEMBER PERCENTAGE INTEREST KING-CHEN HON, M.D. .............................................. 13% ALAN C. YAO, M.D. .............................................. 29% MICHAEL LI, M.D. .............................................. 34% JACKSON KUAN, M.D. ................................................ 9% SING CHAN, M.D. ................................................ 0% CHE-NAN CHUANG, M.D. .............................................. 10% PE HEALTHCARE ASSOCIATES, LLC............................. 5% In his supporting affidavit, Li argues that the “Effective Date” was not defined in the Redemption Agreement. Rather, he maintains that the terms of the Redemption Agreement require that it be interpreted in accordance with New York Public Health Law §2801-a(4)(b)(iii). This provision of the New York Public Health Law provides that: With respect to a transfer...of an interest...in such limited liability company to any remaining partner or member, which transaction involves the withdrawal of the transferor from the partnership or limited liability company...no such transaction shall be effective unless at least ninety days prior to the intended effective date thereof,...the limited liability company fully completes and files with the public health and health planning council notice on a form...which shall disclose such information as may be reasonably necessary for the public health and health planning council to determine whether it should bar the transaction...Within ninety days from the date of receipt of such notice, the public health and health planning council may bar the transaction under this subparagraph if the equity position of the...limited liability company...would be reduced as a result of the transfer, assignment or disposition. The plaintiff contends that Flushing Endoscopy did not submit a transfer notice to New York State in accordance with New York Public Health Law §2801-a(4)(b)(iii) until June 6, 2019 and received an approval letter dated September 18, 2019. In an affidavit submitted by Chan, he maintains that the redemption of his membership interests and his withdrawal as a manager became final in September 2019. Further, the plaintiff contends that, based upon certain filings with the Internal Revenue Service, Chan remained a member of Flushing Endoscopy and the Board until November 23, 2019. 3 3 4 of of 4 5 FILED: FILED: QUEENS QUEENS COUNTY COUNTY CLERK CLERK 08/24/2022 08/25/2022 04:39 10:55 PM AM INDEX INDEX NO. NO. 719600/2019 719600/2019 NYSCEF NYSCEF DOC. DOC. NO. NO. 85 86 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/24/2022 08/25/2022 Based upon Li’s own submissions in his moving papers, questions of fact exist as to whether Chan was still a member of Flushing Endoscopy at the time of the July 15, 2019, meeting, and whether Chan’s vote was required pursuant to the terms of the Third Amendment to the Agreement. Summary judgment must be denied where a plaintiff has not eliminated all questions of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad at 853). In light of the foregoing, the court cannot yet fully address the parties’ contractual arguments. Accordingly, the plaintiff’s motion is denied. Dated: August 22, 2022 FILED 8/24/2022 _______________________ COUNTY CLERK SALLY E. UNGER, A.J.S.C. QUEENS COUNTY 4 4 5 of of 4 5