Preview
Filing # 159638705 E-Filed 10/20/2022 01:26:44 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO: 2019 CA 001939
ZASKIA MERCADO,
Plaintiff,
vs.
CHEDDAR'S CASUAL CAFE, INC.,
Defendant.
/
PLAINTIFF’S MOTION TO COMPEL BETTER
RESPONSES TO REQUEST TO PRODUCE
Plaintiff, ZASKIA MERCADO, by and through the undersigned attorney, moves this Court
for the entry of an Order pursuant to Rule 1.380, Florida Rules of Civil Procedure, compelling the
Defendant, CHEDDAR’S CASUAL CAFE, INC., to provide better answers to Plaintiff’s
Supplemental Interrogatories and Supplemental Request to Produce dated August 4, 2021. As
grounds for the motion, the Plaintiff states as follows:
1. Plaintiff, ZASKIA MERCADO, propounded the Supplemental Interrogatories and
Supplemental Request to Produce to Defendant, CHEDDAR’S CASUAL CAFE, INC., on August 4,
2021. (Exhibit A)
2. Defendant CHEDDAR’S CASUAL CAFÉ, INC. responded to the Supplemental
Interrogatories on September 3, 2021 but failed to provide complete answers (Exhibit B).
3. Defendant CHEDDAR’S CASUAL CAFÉ, INC. responded to the Supplemental Request
to Produce on September 3, 2021 but failed to provide complete responses (Exhibit C).
4. Rule 1.380(a)(2), Fla. R. Civ. P. allows for a party to request an order from the
court compelling production of documents and answers to interrogatories. The Plaintiff is asking
the Court in this case to order the Defendant, CHEDDAR CASUAL CAFÉ, INC., to provide a
better answer to Interrogatory #1 which reads as follows:
Please state whether or not you have experienced any other incidents involving slip
and falls, at, near or on the path/corridor to the bathroom within three (3) years prior to the
date of incident.
The Plaintiff is asking the Court in this case to order the Defendant, CHEDDAR CASUAL
CAFÉ, INC., to provide a better response to Request to Produce #2 which reads as follows:
A list of prior incidents involving customer slip and falls at, near, or on the
path/corridor to the bathroom at the subject store for the three (3) year period of time
immediately preceding the subject incident. (NOTE: please include date of
incident, location in store where incident occurred and description of incident
sufficient for the Court to determine substantial similarity to the subject incident).
5. The documentation requested by Plaintiff’ is material and reasonably calculated to
lead to the discovery of admissible evidence. Moreover, the Plaintiff has a need of the aforementioned
documentation in the preparation of its case and is unable to obtain the substantial equivalent of the
aforementioned documentation by other means without undue hardship.
6. Defendant’s failure to provide these documents has resulted in substantial prejudice
to Plaintiff’s case, and is severely inhibiting Plaintiff’s ability to present all of the relevant information
to the trier of fact.
7. Prior to the court hearing this Motion, the undersigned hereby certifies that he has made
a good faith effort to resolve this issue with the Defendant’s counsel in order to attempt to avoid the
necessity of judicial intervention into this matter, and the undersigned hereby certifies that he will
continue to do the same.
8. Plaintiff certifies this Motion is brought in good faith, and not for the purpose of
harassment or undue delay.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 20, 2022, I electronically filed the foregoing with
the Clerk of Court by using the Florida Courts e-Filing Portal which will send notification of
electronic filing to: Kurt M. Spengler, Esq. and Melissa T. Woodward, Esq., Wicker Smith O'Hara
McCoy & Ford, P.A., 390 N. Orange Ave., Suite 1000, Orlando, FL 32801, via email at
ORLcrtpleadings@wickersmith.com; mwoodward@wickersmith.com;
kspigle@wickersmith.com; pnorris@wickersmith.com.
/s/ Manuel Stefan, Esq.
Manuel “Manny” Stefan, Esq.
Florida Bar No.: 0103389
MORGAN & MORGAN, P.A.
4495 South Semoran Blvd.
Orlando, FL 32822
Telephone No.: (407) 452-6982
Facsimile No.: (407) 572-0124
Primary email: MStefan@forthepeople.com
Secondary email: cvictor@forthepeople.com
Attorney for Plaintiff
Filing # 132011595 E-Filed 08/04/2021 11:29:46 AM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO: 2019 CA 001939 ON
HON. ROBERT J. EGAN
ZASKIA MERCADO,
Plaintiff,
VS.
CHEDDAR'S CASUAL CAFE, INC.,
Defendant.
/
PLAINTIFF’S SUPPLEMENTAL INTERROGATORIES TO DEFENDANT
COMES NOW the Plaintiff, ZASKIA MERCADO, by and through the undersigned
counsel and hereby propounds upon Defendant, CHEDDAR’S CASUAL CAFE, INC.,
supplemental interrogatory, pursuant to Florida Rule of Civil Procedure 1.340, answers to which
will be due within thirty (30) days from the date of service.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 4, 2021, I electronically filed the foregoing with
the Clerk of Court by using the Florida Courts e-Filing Portal which will send notification of
electronic filing to: Kurt M. Spengler, Esq. and Melissa T. Woodward, Esq., Wicker Smith
O'Hara McCoy & Ford, P.A., 390 N. Orange Ave., Suite 1000, Orlando, FL 32801, via email at
ORLertpleadings@wickersmith.com.
/s/ Manuel Stefan, Esq.
Manuel “Manny” Stefan, Esq.
Florida Bar No.: 0103389
MORGAN & MORGAN, P.A.
4495 South Semoran Blvd.
Orlando, FL 32822
Telephone No.: (407) 452-6982
Facsimile No.: (407) 572-0124
Primary email: MStefan@forthepeople.com
Secondary email: cvictor@forthepeople.com
Attorneyfor Plaintiff
PLAINTIFF'S
}a.
EXHIBIT
PLAINTIFF’S SUPPLEMENTAL INTERROGATORIES TO DEFENDANT
1. Please state whether or not you have experienced any other incidents involving slip and
falls at, near, or on the path/corridor to the bathroom within three (3) years prior to the date
of incident.
ANSWER:
2. If your answer to the preceding question is yes, please provide the date of the incident,
location in store where incident occurred and description of the incident such that the Court
can determine substantial similarity to the subject incident.
ANSWER:
SIGNATURE PAGE
Defendant, CHEDDAR’S CASUAL CAFE, INC.
(Signature on behalf of Defendant.)
Print Name
Title
STATE OF
COUNTY OF
BEFORE ME, the undersigned authority, duly licensed to administer oaths and take
acknowledgments, personally appeared as
of Defendant, , being first duly sworn,
deposes and says that he/she read the Answers to the foregoing Supplemental Interrogatories, and
that they are true and correct to the best of his/her knowledge.
SWORN TO AND _ SUBSCRIBED before me, _ this day of
, 2021.
Notary Public (signature)
Notary Public (type, print stamp commission)
My Commission Expires:
Q Personally Known OR
Q Produced Identification
Type of Identification Produced:
Filing # 132011595 E-Filed 08/04/2021 11:29:46 AM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO. 2019 CA 001939 ON
HON. ROBERT J. EGAN
ZASKIA MERCADO,
Plaintiff
VS.
CHEDDAR'S CASUAL CAFE, INC.,
Defendant.
PLAINITFF'S SUPPLEMENTAL REQUEST TO PRODUCE
COMES NOW, the Plaintiff, ZASKIA MERCADO, by and through her undersigned
attorneys and pursuant to Rule 1.350 of the Florida Rules of Civil Procedure, requests
Defendant, CHEDDAR’S CASUAL CAFE, INC., produce the following documents and things
to Manuel F. Stefan, Esquire, at the Law Office of Morgan & Morgan, P.A., 4495 South
Semoran Blvd., Orlando, FL 32822, within thirty (30) days from the service hereof:
1. A true and correct copy of any and all accident investigation/reporting/risk
management manuals and/or videos and/or modules relevant to the accident
investigation and reporting for the accident at issue or for any accident on the
premises.
2. A list of prior incidents involving customer slip and falls at, near, or on the path/corridor to
the bathroom at the subject store for the three (3) year period of time
immediately preceding the subject incident. (NOTE: please include date of
incident, location in store where incident occurred and description of incident
sufficient for the Court to determine substantial similarity to the subject incident).
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 4, 2021, I electronically filed the foregoing with
the Clerk of Court by using the Florida Courts e-Filing Portal which will send notification of
electronic filing to: Kurt M. Spengler, Esq. and Melissa T. Woodward, Esq., Wicker Smith
O'Hara McCoy & Ford, P.A., 390 N. Orange Ave., Suite 1000, Orlando, FL 32801, via email at
ORLertpleadings@wickersmith.com.
/s/ Manuel Stefan, Esq.
Manuel “Manny” Stefan, Esq.
Florida Bar No.: 0103389
MORGAN & MORGAN, P.A.
4495 South Semoran Blvd.
Orlando, FL 32822
Telephone No.: (407) 452-6982
Facsimile No.: (407) 572-0124
Primary email: MStefan@forthepeople.com
Secondary email: cvictor@forthepeople.com
Attorneyfor Plaintiff
2
Filing # 134023762 E-Filed 09/03/2021 01:27:14 PM
92358-5/PVN/12444316
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND FOR
OSCEOLA COUNTY, FLORIDA
ZASKIA MERCADO,
Plaintiff, CASE NO. 19CA1939-ON
vs.
CHEDDAR'S CASUAL CAFE, INC.,
Defendant.
/
NOTICE OF SERVING ANSWERS TO SUPPLEMENTAL INTERROGATORIES
NOTICE IS HEREBY GIVEN that Answers to the Supplemental Interrogatories
propounded to, Defendant, Cheddar's Casual Café, Inc., by Plaintiff, Zaskia Mercado, on August
4, 2021, have been furnished via e-mail to: all counsel of record on date shown below.
WE HEREBY CERTIFY that a copy hereof has been electronically served via Florida
ePortal to: Manuel! Stefan, Esquire, mstefan@forthepeople.com, cvictor@forthepeople.com,
ahiramarmoreno@forthepeople.com; on this 3rd day of September, 2021.
/s/ Kurt M. Spengler
Kurt M. Spengler, Esquire
Florida Bar No. 717665
Melissa T. Woodward, Esquire
Florida Bar No. 022143
WICKER SMITH O'HARA MCCOY & FORD, P.A.
Attorneys for Cheddar's Casual Café, Inc.
390 N. Orange Ave., Suite 1000
Orlando, FL 32801
Phone: (407) 843-3939
Fax: (407) 649-8118
ORLcrtpleadings@wickersmith.com
PLAINTIFF’S
j3 —_—nal
92358-5/MTW/12444316
DEFENDANT’S ANSWERS TO PLAINTIFF’S SUPPLEMENTAL INTERROGATORIES
1. Please state whether or not you have experienced any other incidents involving
slip and falls at, near, or on the path/corridor to the bathroom within three (3) years prior to the
date of incident.
ANSWER: Defendant objects to this Supplemental Interrogatory on the grounds that it
is vague and ambiguous and seeks documentation that is neither relevant
nor reasonably calculated to lead to the discovery of admissible evidence,
especially since other “incidents” rarely arise from the same and/or
substantially similar circumstances and therefore such documentation is
neither relevant to the issues in this lawsuit nor reasonably calculated to
lead to the discovery of admissible evidence.
Subject to and without waiving the foregoing objections and preserving the
same, and based upona diligent and reasonable investigation conducted,
Defendant has been able to identify the following incidents that fall within
the parameters of this supplemental request:
eS8/23/2015
Provided
Guest claims to
have slipped on the
way to the restroom.
Floor was inspected
and observed to be
clean and dry.
Believed to be
caused by
claimant’s sling
back shoes
a
2/17/2016 Guest claims to
way to the restroom.
2/22/2016 Guest claims to
have slipped on the
way to the restroom.
Believed to be
caused by the
presence of wet
substance on the
floor
2/28/2016 Guest claims to
have slipped on the
way to the restroom.
2
92358-5/MTW/12444316
2. If your answer to the preceding question is yes, please provide the date of the
incident, location in store where incident occurred and description of the incident such that the
Court can determine substantial similarity to the subject incident.
ANSWER: Defendant refers Plaintiff to its Answer to Interrogatory No. 1 as set forth
above.
Filing # 134023762 E-Filed 09/03/2021 01:27:14 PM
92358-5/MTW/12444332
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND FOR
OSCEOLA COUNTY, FLORIDA
ZASKIA MERCADO, .
Plaintiff, CASE NO. 19CA1939-ON
vs.
CHEDDAR'S CASUAL CAFE, INC.,
Defendant.
/
DEFENDANT’S RESPONSE TO SUPPLEMENTAL REQUEST TO PRODUCE
Defendant, Cheddar's Casual Café, Inc., by and through the undersigned attorneys, and
pursuant to the applicable Fla. R. Civ. P., responds to Plaintiff's Supplemental Request to Produce
dated August 4, 2021, as follows:
1. A true and correct copy of any and all accident investigation/reporting/risk
management manuals and/or videos and/or modules relevant to the accident investigation and
reporting for the accident at issue or for any accident on the premises.
RESPONSE: Defendant refers Plaintiff to the attached Cheddar’s Restaurant Manager
Handbook attached hereto as Exhibit A, which was previously provided to
Plaintiff's counsel on or about on September 1, 2021.
2. A list of prior incidents involving customer slip and falls at, near, or on the
path/corridor to the bathroom at the subject store for the three (3) year period of time immediately
preceding the subject incident. (NOTE: please include date of incident, location in store where
incident occurred and description of incident sufficient for the Court to determine substantial
similarity to the subject incident).
RESPONSE: Defendant objects to this Supplemental Request on the grounds that it is
vague and ambiguous and seeks documentation that is neither relevant nor
reasonably calculated to lead to the discovery of admissible evidence,
especially since other “incidents” rarely arise from the same and/or
substantially similar circumstances and therefore such documentation is
neither relevant to the issues in this lawsuit nor reasonably calculated to
lead to the discovery of admissible evidence.
Subject to and without waiving the foregoing objections and preserving the
same, and based upon a diligent and reasonable investigation conducted,
Defendant has been able to identify the following incidents that fall within
the parameters of this supplemental request:
PLAINTIFF'S
} EXHIBIT
ee Se
DE
CASE NO. 19CA1939-ON
| Date —=——s||
~—SséDeescrription
Provided _—_—|
8/23/2015 Guest claims to have slipped on the
way to the restroom. Floor was
inspected and observed to be clean
and dry. Believed to be caused by
claimant’s sling back shoes
way to the restroom.
2/22/2016 Guest claims to have slipped on the
way to the restroom. Believed to be
caused by the presence of wet
substance on the floor
way to the restroom.
WE HEREBY CERTIFY that a copy hereof has been electronically served via Florida
ePortal to: Manuel Stefan, Esquire, mstefan@forthepeople.com, cvictor@forthepeople.com,
ahiramarmoreno@forthepeople.com; on this 3rd day of September, 2021.
/s/ Kurt M. Spengler
Kurt M. Spengler, Esquire
Florida Bar No. 717665
Melissa T. Woodward, Esquire
Florida Bar No. 022143
WICKER SMITH O'HARA MCCOY & FORD, P.A.
Attorneys for Cheddar's Casual Café, Inc.
390 N. Orange Ave., Suite 1000
Orlando, FL 32801
Phone: (407) 843-3939
Fax: (407) 649-8118
ORLertpleadings@wickersmith.com
2
Related Content
in Osceola County
Ruling
PATRICK GRAHAM VS MACARIA BELTRAN, ET AL.
Jul 10, 2024 |
22CHCV00784
Case Number:
22CHCV00784
Hearing Date:
July 10, 2024
Dept:
F49
Dept. F49
Date: 7/10/24
Case Name:
Patrick Graham v. Macaria Beltran, individual and trustee of The MCB Trust; and Does 1-10
Case No. 22CHCV00784
LOS ANGELES SUPERIOR COURT
NORTH VALLEY DISTRICT
DEPARTMENT F49
JULY 10, 2024
MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF SPECIAL INTERROGATORIES; REQUEST FOR SANCTIONS
Los Angeles Superior Court Case No. 22CHCV00784
Motion filed:
5/10/24
MOVING PARTY:
Defendants Macaria Beltran, an individual, and Macaria Beltran, Trustee of The MCB Trust (collectively, Defendants)
RESPONDING PARTY:
None.
NOTICE:
NOT OK (see analysis below).
RELIEF REQUESTED:
An order compelling Plaintiff to produce supplemental responses to Defendants first set of Special Interrogatories and imposing monetary sanctions against Plaintiff and his attorney of record for $1,635.00
TENTATIVE RULING:
The motion is DENIED. The request for monetary sanctions is DENIED.
BACKGROUND
Plaintiff initiated this action on September 26, 2022. Subsequently, on December 12, 2022, Plaintiff filed his operative First Amended Complaint (FAC) against Defendants and Does 1 to 10, alleging the following causes of action: (1) Fraud; (2) Negligent Misrepresentation; and (3) Specific Performance. Following this, Defendants filed their Answer to the FAC on January 11, 2023.
On May 10, 2024, Plaintiff filed a Substitution of Attorney with the Court, substituting himself for his former counsel.
Subsequently, on the same day, May 10, 2024, Defendants filed the instant Motion to Compel Further Responses to Special Interrogatories (SROG), Set One (the Motion).
No Opposition or Reply papers have been received by the Court.
ANALYSIS
On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).)
A.
Procedural Requirements
1.
Timeliness
Pursuant to Code of Civil Procedure section 2030.300, subdivision (c), notice of this motion must be given within 45 days following the service of the verified response, or any supplemental verified response, or by a later date agreed-upon in writing, failing which the propounding party waives any right to compel a further response to the interrogatories. (Code Civ. Proc., § 2030.300, subd. (c)
; but see
Golf & Tennis Pro Shop, Inc. v. Superior Court
(2022) 84 Cal.App.5th 127, 134-136 [suggesting that the 45-day deadline does not apply to (i.e., it does not begin to run with service of) objections-only responses; it only applies to responses that are required to be verified].)
The 45-day deadline is jurisdictional in the sense that it renders the court without authority to rule on motions to compel other than to deny them. (
Sexton v. Superior Court
(1997) 58 Cal.App.4th 1403, 1410.)
Any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days[.] (Code Civ. Proc., §
1010.6, subd. (a)(3)(B).)
Here,
Plaintiff served written responses by email to Defendants first set of SROG on February 14, 2024, (Block Decl. ¶ 4, Ex. B.) The service of written responses establishes the deadline for Defendants to file a motion to compel further as April 4, 2024, calculated based on a 45-day period with an extension of two court days per Code of Civil Procedure section 1010.6, subdivision (a)(3)(B), accounting for the method of electronic service.
Therefore, the Court finds the Motion is filed timely as it was filed prior to the established deadline.
2.
Meet and Confer
A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2030.300, subd. (b)(1).)
A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Code Civ. Proc., § 2016.040.)
Here, the Court finds Defendants meet and confer efforts to be sufficient. (Block Decl. ¶ 5, Ex. C and D.)
3.
Separate Statement
The California Rules of Court rule 3.1345 (a)(2) explicitly states that Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: ... (2) To compel further responses to interrogatories.
A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. (Cal. Rules of Court, rule 3.1345(c).)
Here, Defendants have fulfilled the requirement by concurrently filing a separate statement with the Motion.
4.
Proof of Service
For noticed motions, [u]nless otherwise ordered or specifically provided by law, all moving and supporting papers must be served and filed in accordance with Code of Civil Procedure section 1005 and, when applicable, the statutes and rules providing for electronic filing and service. (Cal. Rules of Court, rule 3.1300(a).)
Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. (Code Civ. Proc., § 1005, subd. (b).)
Furthermore, [i]f a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of that document is deemed complete at the time of the electronic transmission of the document or at the time that the electronic notification of service of the document is sent. (Code Civ. Proc., § 1010.6, subd. (a)(3)(A).)
Here, Defendants submit Proof of Service, indicating that on May 10, 2024, papers associated with the Motion were served upon Plaintiffs former counsels, Adam Grant and David Almaraz, by emailing the documents to the former counsels email addresses.
However, the Proof of Service was filed with the Court at 4:25 p.m. concurrently with the Motion, subsequent to Plaintiffs filing of Substitution of Attorney at 3:36 p.m. on the same day.
According to Code of Civil Procedure section 284, which provides that [t]he
attorney in an action or special proceeding may be changed at any time before or after judgment or final determination ... [u]pon the consent of both client and attorney, filed with the clerk, or entered upon the minutes, Plaintiffs former counsels ceased to represent Plaintiff upon the filing of the Substitution of Attorney, i.e., at 3:36 p.m. on May 10, 2024, and are no longer authorized to accept service on Plaintiffs behalf. Moreover, Defendants have not submitted any evidence of service upon the self-representing Plaintiff.
Therefore, Defendants have failed to demonstrate effective service of the moving papers either on Plaintiffs former counsels or on Plaintiff, in pro per, pursuant to applicable Code of Civil Procedure sections.
Based on the above records, the Court determines that Defendants Motion does not comply with Code of Civil Procedure section 1005 and California Rules of Court rule 3.1300(a).
Therefore, the Court DENIES the Motion.
B.
Monetary Sanctions
As the Court has denied the Motion, the request for monetary sanctions, reserved for a prevailing party under Code of Civil Procedure section 2030.300, subdivision (d), is also DENIED.
CONCLUSION
Defendants Motion to Compel Further Responses to Special Interrogatories, Set One, is DENIED.
Defendants Request for Monetary Sanctions is DENIED.
Moving party to give notice.
Ruling
FILIPIAK vs GENESIS MOTOR AMERICA LLC, a California Limited Liability Company
Jul 10, 2024 |
SCV-273614
SCV-273614, Filipiak v. Genesis Motor America LLC, a California Limited
Liability Company
Plaintiff Filipiak moves for attorneys’ fees in the total amount of $48,063.52 for attorney fees per
Civil Code section 1794(d). The motion is GRANTED for the reduced amount of $24,300 plus
costs of $573.52.
PROCEDURAL HISTORY
Plaintiff filed this action against Genesis Motor America LLC (“Genesis”) asserting breach of
warranty under the Song-Beverly Act regarding a vehicle Plaintiff bought from Genesis.
Ultimately, the parties settled their claims on February 1, 2024. The parties agreed as part of
their settlement that Plaintiff’s attorney’s fees would be decided by noticed motion. Plaintiff, as
the prevailing party, now brings this motion for attorney’s fees. Genesis opposes the motion.
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 argues that he incurred $29,160.00 in fees legal representation and $573.52 in costs.
Plaintiff requests an approval of a total of 48.6 hours of worked. Counsel is requesting an hourly
rate of $600 per hour for two attorneys that have 15 and 16 years of experience, respectively.
Counsel has been previously rates of $500 and $550 in other matters in Sonoma County.
Counsels also request a multiplier of 1.5 to the lodestar fees requested so that the total attorney’s
fees amount requested is $43,740. They represented their client on a contingent basis.
Genesis argues that Plaintiff has already obtained the relief demanded under the Song-Beverly
Consumer Warranty Act, so Plaintiff’s attorney’s fees should be reduced significantly to only
28.9 hours of legal representation and a maximum rate of $375 per hour. Genesis argues that a
multiplier should not be applied.
Application
Based on the moving papers, the Court finds Plaintiff is entitled to costs and attorney’s fees per
Civil Code section 1794(d). The Court finds the hours worked by counsels to be reasonable. The
Court will reduce counsels’ requested rates to the amounts reasonable in the local area. 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. As such, the Court will award fees in the
amount of $24,300 at a rate of $500 per hour plus costs of $573.52.
CONCLUSION
Based on the foregoing, Plaintiff’s motion for attorneys’ fees is GRANTED for the total amount
of $24,300 plus costs of $573.52. 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
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
FRANKIE LOYAL VS COTI WILLIAMS, ET AL.
Jul 09, 2024 |
6/18/2022 |
23SMCV00723
Case Number:
23SMCV00723
Hearing Date:
July 9, 2024
Dept:
I The motion to set aside the default is DENIED.
This is a fraud case.
Defendant was properly served with the complaint and demurred to it.
On September 14, 2023, the demurrer was overruled.
Defendant Coti Williams participated in the hearing remotely.
At the time the demurrer was overruled, the court specifically informed defendanteardrum to eardrumthat she had 30 days to answer the complaint.
Plaintiff waited about 60 days before seeking a default and later a default judgment.
The default was entered as against the two individual defendants, but not the entity defendant, which had not been served properly.
The court docket clearly and unambiguously reflects that dichotomy.
On December 8, 2023, Williams contacted plaintiff and stated that she had a lawyer for herself, but not the entity.
On January 18, 2024, plaintiff served defendants with
ex parte
notice relating to the entity defendant.
Defendants did not appear at the
ex parte
.
On January 31, 2024, defendants filed an answer.
The answer was filed as to the entity defendantwhich was not in default but it was not accepted as to the individual defendants, as the default precluded them from answering.
On June 7, 2024, the court held a hearing.
A person appeared who stated that he was a lawyer but did not actually say he represented defendants.
He did say that defendants intended to litigate the case.
The court advised that person that if a motion to vacate was going to be filed, it should be done quickly.
Ten days later, on June 17, 2024, the instant motion was filed.
Given the situation, the answer filed on January 31, 2024, is ineffective as to the individual defendants.
They were already in default and therefore could not answer.
It was effective as to the entity, although it appears that the entity is not a real entity.
Williams was served with the default on November 20, 2023, which was long after the time that an answer was due.
Williams asserts mistake or excusable neglect.
There is neither.
The court specifically told Williams on September 14, 2023, that she had to file an answer within 30 days or she could be defaulted.
There was no ambiguity in the courts instruction and Williams certainly did not seem confused by it.
Nothing in the moving papers suggest any basis for any confusion on that score.
Plaintiff could have sought a default 31 days after that hearing, but in an abundance of caution plaintiff waited 60 days.
And after obtaining default, plaintiff served defendants with notice of it on November 20, 2023.
Again, there could be no confusion and the courts docket is clear that the default was entered as against the individuals.
Further, even if defendants truly and honestly believed that they had filed an answer on January 31, 2024, at most it might give rise to an explanation for the delay between then and June, although given the actual docket the court does not think so.
But defendants offer no justification for the failure to file an answer as specifically instructed by the court or not moving to vacate the default in the over two months after notice of default was given.
Defendants were not misled and there was no mistake.
The court finds that the delay was deliberate and tactical.
Accordingly, the motion to set aside is DENIED.
The court also notes that the motion was not filed within 180 days of entry of the default, which makes it untimely under CCP section 473(b).
Given that, the court will enter the default judgment.
The court finds the judgment to be proper other than the punitive damages.
The amount of punitive damages is not set forth in the complaint (which is propersetting a precise amount is not allowed), and no Statement of Damages was served prior to entry of the default.
Plaintiff notes that the various defaults all included the amount sought, but that is not enough.
By the time defendants got those documents, the default had already been entered.
Further, the court is not satisfied that there has been an adequate showing of defendants financial state.
Plaintiff did find some internet evidence that one of the defendants (Pep) is a photographer who has offered pictures for sale at very significant prices.
But there is no evidence that any of the pictures actually sold for those amounts or what assets the defendants (or either of them) actually has, or any evidence as to what liabilities they have.
There is simply not enough information to justify a punitive damages award.
Therefore, plaintiff has a choice.
It can accept a default judgment in the amount sought except for punitive damages or it can vacate the default, file a statement of damages, and litigate.
If plaintiffs choose the former option, they should submit a revised proposed default judgment promptly, such as within 20 days.
Ruling
SECOND SITE LLC VS PAUL SCOTT ET AL
Jul 11, 2024 |
BC723513
Case Number:
BC723513
Hearing Date:
July 11, 2024
Dept:
68 Dept. 68
Date: 7-11-24
Case BC723513
Trial Date: 8-12-24
SUMMARY JUDGMENT
MOVING PARTY: Defendants, Erba, Inc., et al.
RESPONDING PARTY: Plaintiff, Second Site, LLC
RELIEF REQUESTED
Motion for Summary Judgment
SUMMARY OF ACTION
Plaintiff Second Site, LLC alleges entry into a partnership agreement with defendant Los Angeles Wellness Center (LAWC), whereby the parties would operate as a partnership from September 26, 2016, through September 26, 2019, with two three year options to renew. The agreement required Plaintiff a right of first refusal for the purchase of the marijuana dispensary license held by Los Angeles Wellness Center during any option period for fair market value.
On a date after July 30, 2017, LAWC opened a facility on 4665 Melrose Ave., then moved the facility to 4881 Topanga Canyon Blvd. Meanwhile, a facility operated by defendant Erba, Inc. operated a facility on Pico, acquired LAWC rights in alleged violation of the partnership agreement.
On September 26, 2018, Plaintiff filed a complaint against a number of parties, including Erba, Inc., for Breach of Partnership Agreement; Breach of Implied Covenant of Good Faith And Fair Dealing; Breach Of Fiduciary Duty; Fraud; Unfair Competition; Tortious Interference With Prospective Economic Advantage; Conversion; Conspiracy; Money Had And Received; Negligence; Declaratory Relief; and, Injunctive Relief. On October 15, 2018, Plaintiff filed a 170.6 challenge and the action was reassigned. On December 21, 2018, Plaintiff dismissed the City of Los Angeles without prejudice.
On February 1, 2019, Plaintiff filed a first amended complaint for Breach of Partnership Agreement; Breach of Implied Covenant of Good Faith and Fair Dealing; Breach of Fiduciary Duty; Fraud; Unfair Competition; Tortious Interference With Prospective Economic Advantage; Conversion; Conspiracy; Money Had And Received; Negligence; and, Declaratory Relief. On April 18, 2019, the court sustained the demurrer in part and overruled the demurrer in part.
On March 4, 2022, defendant Paul Scott filed a cross-complaint for Breach of Contract; Breach of Fiduciary Duty; Negligent Misrepresentation; and, Fraud. On August 12, 2020, the court sustained the demurrer to the cross-complaint with leave to amend. On September 14, 2020, Scott filed a first amended cross-complaint.
On November 20, 2020, the court granted Plaintiff leave to file a second amended complaint. On December 9, 2020, Plaintiff filed the second amended complaint for Breach of Partnership Agreement; Breach of Implied Covenant of Good Faith and Fair Dealing; Fraud; Unfair Competition; Tortious Interference With Prospective Economic Advantage; Conversion; Conspiracy; Money Had And Received; Declaratory Relief; Aiding and Abetting, and Accounting. The second amended complaint added in new defendants as well.
On January 14, 2021, the court sustained the demurrer to the first amended cross-complaint with leave to amend. On February 22, 2021, Scott filed a second amended cross-complaint.
On April 1, 2021, and April 22, 2021, new defendants filed 170.6 challenges, which were rejected.
On April 22, 2021, the court overruled the demurrer to the Second Amended Cross-Complaint.
RULING
: Denied
Request for Judicial Notice: Granted in Part/Denied in Part.
·
The court takes judicial notice of the second amended complaint, but not for the truth of the content.
·
The court takes judicial notice of the existence of Proposition D and California Health & Safety Code section 11379.6(a) only. Any consideration of the sections should be addressed in the points and authorities.
·
The court cannot take judicial notice of the articles of incorporation downloaded from the California Secretary of State website in that the mere filing of said items in no way constitutes an official act of the Secretary of State.
Defendants Erba, Inc., Jay Handal, Devon Wheeler, and Gabriel Dezio, move for summary judgment on the second amended complaint. Defendants move on grounds that the partnership agreement regarding marijuana licensing rights in an and of itself constituted an illegal agreement, thereby preventing enforcement of the agreement. Plaintiff Second Site, LLC in opposition maintains no illegality in the contract exists. Any additional operations were separately licensed and therefore never in violation of Proposition D. Defendants in reply reiterate the illegal nature at the core of the agreement and illegal cultivation operations. Defendants also challenge Plaintiffs failure to meet their burden of proof establishing triable issues of material fact.
The pleadings frame the issues for motions, since
it is those allegations to which the motion must respond. (
Citation.
)
(
Scolinos v. Kolts
(1995) 37 Cal. App. 4th 635, 640-641;
FPI Development, Inc. v. Nakashima
(1991) 231 Cal.App.3d 367, 382-383;
Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp.
(1994) 29 Cal.App.4th 1459, 1472.
) The purpose of a motion for summary judgment or summary adjudication is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (
Aguilar v. Atl. Richfield Co.
(2001) 25 Cal.4th 826, 843.)
Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
(
Adler v. Manor Healthcare Corp.
(1992) 7 Cal.App.4th 1110, 1119.)
On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact. (
Scalf v. D.B. Log Homes, Inc.
(2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.
(Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (
Ibid
.)
When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment. (
Avivi v. Centro Medico Urgente Medical Center
(2008) 159 Cal.App.4th 463,
467; see also Code Civ. Proc., § 437c, subd. (c).) An issue of fact can only be created by a conflict in the evidence.
It is not created by speculation, conjecture, imagination or guesswork.
(
Lyons v. Security Pacific National Bank
(1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)
Defendants argument for illegality in the purpose of the contract relies on a finding that Plaintiff sought to operate multiple growth and/or dispensary facilities under a single license. According to Defendants, the licensing requirements governed by the City of Los Angeles only allow for single site operations per license. The agreement regarding the operation for multiple sites under a single license therefore constituted a statutory violation and therefore an illegal agreement.
Malum
prohibitum
means prohibited by statute
malum
prohibitum
contracts are illegal as contrary to a statute. (
Russell City Energy Co., LLC v. City of Hayward
(2017) 14 Cal.App.5th 54, 71.) If any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void. (Civ. Code, § 1608.) [T]he doctrine of
illegality
considers whether the
object
of the
contract
is
illegal
. It does not turn on whether the
illegality
applies to the
party
seeking to enforce the agreement. (
McIntosh v. Mills
(2004) 121 Cal.App.4th 333, 346.) [M]alum prohibitum contracts may be enforceable despite their illegality if the parties were not in pari delicto. (
Id
. at p. 344 (footnote 10).)
The court reviews certain material terms of the agreement.
In addition to the partnership and options agreement, paragraph 14 of the operative complaint alleges a profit sharing agreement with reference to operations (e.g. facilities in more than one location). The next paragraph continues that the agreement itself was based on a City of Los Angeles Measure D compliant dispensary for the sale of marijuana products in accordance with requirements regulations of the City of Los Angeles and Department of Cannabis Regulations. The partnership agreement identifies three separate locations for intended operations: 8010-8012 Remmet Ave in Canoga Park; 7027-7029 Eton Ave in Canoga Park; and, 4665 Melrose Ave in Los Angeles. [Declaration of Arthur Hodge, Ex. 1-2.]
Defendants cite to Proposition D for support of the argument regarding a prohibition of operations in more than one location per license. Notwithstanding the provision, and lack of challenge from Plaintiff on the specific subject, the Los Angeles Municipal Code indicates a repeal of Proposition D:
The voters of the City of Los Angeles adopted Article 5.1 of Chapter IV of the Los Angeles Municipal Code regarding medical marijuana (Sections 45.19.6 through 45.19.6.9) as part of Proposition D, a referendum submitted to the voters by the City Council at the election held on May 21, 2013. The Council shall adopt an ordinance repealing these provisions of Proposition D (Sections 45.19.6 through 45.19.6.9) effective January 1, 2018, unless the Council adopts a Resolution, by majority vote, specifying another date for the repeal. The Council retains and possesses authority to amend, by ordinance, these provisions of Proposition D prior to its repeal.
Sections 45.19.6 through 45.19.6.9 no longer appear operative. While the alleged breach appears to have occurred sometime after 2017, the argument in support of the motion for summary judgment in no way addresses the impact of the repeal of the operative statute. The court declines to make the arguments for moving parties, as it is their burden to establish the lack of a valid claim through the affirmative defense of illegal contract. The City of Los Angeles apparently now regulates cannabis operations via the guidelines of Proposition M, as presented under Los Angeles Municipal Code section 104.00, et seq.
Plaintiff tacitly acknowledges the superseding of Proposition M for Proposition D based on a position that immunity conveyed to any licensee under Proposition D automatically extended under Proposition M, as long as compliance by the licensed operator was previously established. Defendants in reply offer no counter argument or even acknowledgment of Proposition M, and instead continues to reiterate Proposition D. The court accepts Proposition M as the governing statute given the lack of sufficient clarification, as is the burden of moving parties.
Even under Proposition M, however, Plaintiff acknowledges the single site location restriction. Thus, the argument for statutory illegality remains a consideration. On the other locations identified in the parties agreement, Plaintiff contends the additional sites constituted separate assets in existence prior to the agreement. Furthermore, the cultivators at said second sites obtained separate licenses under Proposition M/LAMC 104, et seq. guidelines. Plaintiff also denies any violation of processor laws.
Plaintiff alternatively maintains reformation and severability prevent any declaration of a void contract. Plaintiff concludes with a suggestion of waiver and estoppel in that Defendants waived said defense or are estopped. The court declines to consider the severability, waiver and estoppel arguments, in that the said counter arguments constitute new argument beyond the scope of the framed issues from the pleadings and as presented in the motion. Furthermore, as discussed below, the court finds the merits of the argument do not warrant further consideration into these potential issues at the time of the instant motion.
More perfunctory, Defendants rely on an assumption that the agreement itself assumes multiple, licensed required operations under a single license without actually providing a copy of the entire agreement, or actually particularly addressing the meaning and context of the terms of the agreement. The court cites to fundamental contract interpretation rules.
A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful. (Civ. Code, § 1636.) The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity. (Civ. Code, § 1638.) When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible; subject, however, to the other provisions of this Title. (Civ. Code, § 1639.) The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other. (Civ. Code, § 1641.) A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties. (Civ. Code, § 1643.) The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed. (Civ. Code, § 1644.) However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract. (Civ. Code, § 1648.) Repugnancy in a contract must be reconciled, if possible, by such an interpretation as will give some effect to the repugnant clauses, subordinate to the general intent and purpose of the whole contract. (Civ. Code, § 1652.) Stipulations which are necessary to make a contract reasonable, or conformable to usage, are implied, in respect to matters concerning which the contract manifests no contrary intention. (Civ. Code, § 1655.) (
Siligo v. Castellucci
(1994) 21 Cal.App.4th 873, 880881.)
A contract term should not be construed to render some of its provisions meaningless or irrelevant. (
Estate of Petersen
(1994) 28 Cal.App.4th 1742, 1754 (footnote 4).) A well-settled maxim states the general rule that ambiguities in a form contract are resolved against the drafter. (Citations.) But that is a general rule; it does not operate to the exclusion of all other rules of contract interpretation. It is used when none of the canons of construction succeed in dispelling the uncertainty. (
Oceanside 84, Ltd. v. Fidelity Federal Bank
(1997) 56 Cal.App.4th 1441, 1448.)
The plain language of the agreement only references a relocation of the Dispensary to Melrose, with future operations contemplated at two additional locations on Remmet Ave. and Eton Ave. for 120 lights + extraction and 80 lights
+ Dispensary operations. Defendants cite pages and pages of deposition testimony regarding operations without actually addressing the parties understanding of the execution of the terms of the agreement, such as reliance on a single license (under Proposition D), intent to obtain additional licenses, or other forms of business operations (and potential, required growth licenses). [Hode Decl., Ex. 3: Deposition of Ronald Glantz.] One witness in fact even admits to an uncertainty as to business operations for dispensary operations, but also references a separate cultivation operation for the Remmet facility without any necessity of a dispensary license. [Hode Decl., Ex. 4: Deposition of Michael Sapir.]
The court finds no support for improper intended illegal operation of a second dispensary under a single license. At the core of the agreement regarding the Remmet facility, the unchallenged testimony from Sapir regarding the lack of any need for a BTRC license for a non-dispensary operation in and of itself undermines any argument for said license violation. As for Eton, Defendants reference testimony from Sapir regarding operations, and undisputed material fact number seven (7) in the separate statement directly cites to the Sapir deposition 71:3-15, but no such pages are incorporated into the actual Hodge Declaration. Even relying on the purported copied portions of the deposition transcript incorporated into the points and authorities, however, it only appears Eton was for cultivation. There is no indication of any distribution requirement or licensing requirements. [See
Declaration of Michael Sapir.]
Thus, given the intended relocation of the single dispensary from Topanga to Melrose under the Proposition M license requirement, Defendants fail to establish any actual violation of the statute for purposes of the subject motion. Defendants anticipated this potential, and alternatively argue that said cultivation operations violate Cali
fornia Health and Safety Code section 11379(a).
The statute states in relevant part:
Except as otherwise provided ...
every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance ... unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment... (Health & Saf. Code, § 11379.)
Defendants cite to language regarding extraction activities, but the plain language of the statute appears to address transpiration and distribution rather than extraction or other forms of cannabis processing activity. The correct section is
Cali
fornia Health and Safety Code section 11379.6, subdivision (a):
Except as otherwise provided by law, every person who manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance ... shall be punished by imprisonment ... and by a fine not exceeding fifty thousand dollars ($50,000).
(Health & Saf. Code, § 11379.6.)
Defendants again cite back to unattached deposition testimony from Sapir. [Undisputed Material Fact 15, Sapir Depo, 251.2-22.] The court considers the represented testimony from the points and authorities, whereby Sapir purportedly testified to extraction operations at an unspecified location. Under this assumption, Defendants conclude said extraction operation constituted an illegal activity, thereby again voiding the agreement.
The broad scope of the terms of the agreement renders some validity to the argument as to the partnership agreement for a potential illegal extraction operation constituting a void term by statute. Plaintiff acknowledges the meth lab penalty statute identified as
Cali
fornia Health and Safety Code section 11379.6, but maintains an exemption to the statute exists for operations utilizing non-flammable carbon dioxide extraction processes. [Sapir Decl.] (See Health & Saf. Code, § 11362.3, subd. (a)(3) [
Volatile
solvent means
a solvent that is or produces a flammable gas or vapor that, when present in the air in sufficient quantities, will create explosive or ignitable mixtures
].)
Defendants in reply maintain the exemption was not applicable as the relied upon at the time were not in existence. Thus, the violation occurred at the time of formation. Defendants state the new regulations were adopted in 2018, and the contract was in fact formed prior to 2018.
[L]egislative enactments are generally presumed to operate prospectively and not retroactively unless the Legislature expresses a different intention (
Evangelatos v. Superior Court
(1988) 44 Cal.3d 1188, 1208.) A distinction arises however when a statutory change merely clarifies, rather than changes, existing law. A change that clarifies existing law properly applies to all transactions predating its enactment, where if an action substantially changes the legal consequences of past actions or upsets expectations based in prior law, the proactive presumption applies.
(
Carter v. California Dept. of Veterans Affairs
(2006) 38 Cal.4th 914, 922.)
The conclusive argument in reply regarding a prospective application of the statute without address of potential clarification for non meth lab related activities renders the argument incomplete. The court again declines to make the argument for Defendants. For purposes of the subject motion, the court therefore finds no illegal conduct based on the operation of a carbon dioxide based extraction facility also presents no basis for the determination of an illegal extraction operation thereby voiding the partnership agreement in regards to said operations.
Finally, given the claimed wrongful conduct by Defendants in transferring the license in violation of the agreement, Defendants fail to dispel a potential in pari delicto challenge to the application of the defense of
malum
prohibitum. In other words, the court declines to find the illegal contract provision applicable in favor of parties summonsed to the court due to their own allegedly wrongful conduct.
The court therefore finds triable issues of material fact arising from the parties partnership agreement based on the lack of any evidence of any actual statutory violation under the operative regulation as passed Proposition M and reflected in Los Angeles Municipal Code 104, et seq., California Health and Safety Code section 11397.6, subdivision (a). To the extent Defendants depend on said argument for relief against all claims, and the court cannot accord on any of the presented argument, the motion for summary judgement is DENIED in its entirety.
Trial remains set for August 12, 2024.
Moving Defendants to give notice to all parties.
Ruling
Maria Castilo vs. Fairfield Investor 1, LLC, a limited liability company et al
Jul 10, 2024 |
CU23-03783
CU23-03783
Plaintiff’s Motion to be Relieved as Counsel
TENTATIVE RULING
The Parties are to appear. Plaintiff’s Counsel is to update the Court on whether each of
the Plaintiffs have been provided notice of the hearing date on July 12, 2024 for
Defendant’s Motions to Compel Discovery. If notice has been provided, Plaintiffs’
Counsel is to submit proof to the Court. (The Court notes that in Plaintiffs Counsel’s
declaration in support of motion the be relieved, Plaintiffs were only provided notice of
the Case Management Conference date of June 26, 2024.)
Ruling
THE WINDMILL CO. INC. VS FAYEK SEDRAK, ET AL.
Jul 09, 2024 |
21NWCV00400
Case Number:
21NWCV00400
Hearing Date:
July 9, 2024
Dept:
C
The Windmill Co. Inc. vs. Fayek Sedrak, et al.
Case No.: 21NWCV00400
Hearing Date: July 9, 2024
#1
Tentative Ruling
I.
Defendant O&C Hillsides Motion for Sanctions is MOOT.
II.
Defendant Sedraks Motin for Sanctions is DENIED.
Plaintiff to give notice.
Background
On June 21, 2021, Plaintiff, The Windmill Co., Inc., (Plaintiff) filed an action against Defendants Fayez Sedrak (Sedrak) and O&C Hillside Resources Management Co. (O&C Hillside), alleging Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, and Declaratory Relief. In a First Amended Complaint filed on February 6, 2023 (FAC) Plaintiff alleged that on January 3, 2020, Plaintiff entered into a Sale of Business agreement with O&C Hillside to purchase the business known as ARCO AM PM 6545 located at 13550 Beach Blvd, La Mirada, CA, for $1,590,000.00. The parties opened an Escrow at Ace Escrow where they each signed mutual escrow instructions and Plaintiff deposited $30,000 into Escrow. (Id., ¶¶ 8-9; Benge Decl. in support of MSJ, Exhibit 1.) Escrow was to close in 90 days. (Benge Decl. in support of MSJ, Exhibit 2.)
The original escrow for the purchase of the Arco AM/PM was signed on January 3, 2020. The original purchase price was $1,590,000.00. (Benge Decl. in support of MSJ ¶¶ 3-4; Exhibits 1-2.) However, during the first escrow period several problems arose, including the necessity by Tesoro (the franchisor) to elect not to exercise their right of first refusal, the Landlords unwillingness to sign the assignment and assumption of ground lease, and problems with a Hydrogen facility. (Sedrak Decl. in Support of MSJ ¶¶ 9, 14, 24; Benge Decl. in support of MSJ ¶¶ 10, 17.) During this period, Plaintiff obtained a loan approval note dated October 1, 2020, for $1,110,000.00. (Mashney Decl. in Opposition of MSJ, Exhibit 9.) For those reasons an amended escrow agreement was signed on January 21, 2021. Those instructions stated that escrow was to close within ninety days. (Benge Decl. in Support of MSJ, Exhibit 3.) The amended agreement called for a promissory note for $150,000.00 with an interest rate of 0% per annum for eight years. In addition, the Escrow Amendment changed the purchase price to $1,940,000.00. (Benge Decl. in Support of MSJ, Exhibit 3.)
During this time, Plaintiff did not deposit funds into escrow as required by the amended escrow agreement or obtain a loan. However, on March 22, 2021, Defendant Sedrak emailed an Ace Escrow account for an agent named Debbie to cancel escrow. (Mashney Decl. in Opposition of MSJ, Ex. 16.) This cancellation occurred 30 days prior to the close of 90-day window. On May 25, 2021, Plaintiff sent a demand for specific performance as to all Defendants, which went unanswered. (Mashney Decl. in Opposition of MSJ, Exhibit 17.) On June 21, 2021, Plaintiff, the Windmill Co., Inc., filed an action against Fayez Sedrak and O&C Hillside Resources Management Co., alleging Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, and Declaratory Relief. (See Complaint.) On August 1, 2021, Defendants emailed a Notice of Default and Second Demand and Notice to Perform Escrow, which gave only five days to deposit the funds. (Mashney Decl. in Opposition of MSJ, Exhibit 18.) On August 4, 2021, Plaintiff sent the second demand for specific performance. (Mashney Decl. in Opposition of MSJ, Exhibit 20.)
On October 7, 2021, Plaintiff obtained a second loan approval note for $1,940,000.00. (Mashney Decl. in Opposition of MSJ, Exhibit 21.) Plaintiff claims that Defendant O&C Hillside did not sign a 4506T form that Defendant claims is necessary for the loan to be processed.
On January 8, 2024, Defendants filed the two instant Motions for Sanctions based on CCP § 128.5 and 128.7.
Discussion
Code of Civil Procedure section 128.5, subdivision (a), provides that [a] trial court may order a party, the partys attorney, or both, to pay the reasonable expenses, including attorneys fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.
Frivolous refers to an action that is totally and complete without merit or for the sole purpose of harassing an opposing party. (Code Civ. Proc., § 128.5, subd. (b)(2).) Whether an action is frivolous is governed by an objective standard; a suit indisputably has no merit only where any reasonable attorney would agree that the action is totally and completely without merit. (
Finnie v. Town of Tiburon
(1988) 199 Cal.App.3d 1, 12, quotation marks omitted.) There must also be a showing of subjective bad faith on the part of the attorney or party to be sanctioned. (
Campbell v. Cal-Gard Surety Services, Inc.
(1998) 62 Cal.App.4th 563, 574 (
Campbell
).)
Section 128.7 states that [b]y presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. (Code of Civ. Proc., § 128.7, subds. (b)(1)-(4).)
Defendant O&C Hillside
Defendant O&C Hillside concedes that the Courts finding of the presence of a material issue of fact precludes sanctions under sections 128.5 and 128.7. As a result, the Motion for Sanctions filed by O&C Hillside has become moot. (Reply in Support of Sanctions, filed on May 15, 2024, p. 1:22-24.)
Accordingly, the Motion for Sanctions filed by Defendant O&C Hillside is MOOT.
Defendant Sedrak
Sedrak contends that P
laintiff and its Counsel have knowingly maintained an action which does not exist against Sedrak, and which has no basis in fact or law.
The Court disagrees.
In Opposition to
Sedraks motion for summary judgment, Plaintiff presented evidence from Sedraks deposition that he is everything at O&C Hillside, he holds all corporate titles, and makes all the major decisions. (1/29/24 Order Granting Sedraks Motion for Summary Judgment.)
The Court ruled in favor of Sedrak because Plaintiff failed to produce evidence of fraudulent behavior, commingling of funds, or any other conduct that establishes alter ego liability.
However, failure to produce evidence does not mean such evidence does not exist.
At the hearing, Plaintiff requested a continuance because O&C Hillside had not provided financial documents that could establish commingling.
The Court denied the request because it was untimely, not because evidence of commingling did not exist.
Under these circumstances, the Court cannot determine that Plaintiff maintained its lawsuit against Sedrak in bad faith.
Sedrak contends that a reasonable investigation would have revealed the absence of any cause of action for violation of the Covenant of Good Faith and Fair Dealing and the non-existence of a Declaratory Relief claim. Sedrak further maintains that the Breach of Contract claim is objectively frivolous because Plaintiff had no loan commitment, signed an escrow on January 21, 2021, waiving all prior claims of any default, and it failed to perform the Escrow Contract within 90 days as provided for in the Escrow.
As to the second cause of action for Violation of the Covenant of Good Faith and Fair Dealing, the Court finds that this cause of action was not alleged in bad faith because Plaintiff presented evidence in Opposition to the Motion for Summary Judgment that, among other things, Sedrak emailed Ace Escrow to cancel escrow 30 days prior to the end of the 90-day escrow period closing. (Opposition to MSJ, Mashney Decl., Ex. 16.)
The Court found that Plaintiff had raised a triable issue of material fact as to whether this prevented Plaintiff from satisfying its obligations. (1/29/24 Order denying O&C Hillsides Motion for Summary Adjudication of the second cause of action.)
As to the third cause of action for Declaratory Relief, the Court denied the motion for summary adjudication, reasoning that it had denied relief as to the breach of contract cause of action and if, after a trial, the court decides to uphold the agreement and order specific performance, there will be a future relationship between the parties. Since an actual controversy has been established, declaratory relief would be required to preserve the rights and obligations of both parties.
(1/29/24 Order denying O&C Hillsides Motion for Summary Adjudication of the first and third causes of action.)
Accordingly, Defendant Sedraks Motion for Sanctions under CCP §§ 128.5 and 128.7 is DENIED.
Ruling
JAI SHRI RAM HOSPITALITY GROUP OF CHICO, LLC V. GREEN WORLD
Jul 10, 2024 |
22CV03057
22CV03057 JAI SHRI RAM HOSPITALITY GROUP OF CHICO, LLC V. GREEN WORLD
HUB ET AL
EVENT: Plaintiff’s Motion to Compel Defendant Green World Hub’s Discovery Responses
and for Monetary Sanctions
The Proof of Service shows that the Motion was served electronically on June 20, 2024,
13 Court days prior to the noticed hearing date. Pursuant to Code of Civil Procedure
§1005(b) and 1010.6(a)(3)(B), 5 additional Court days’ notice is required. Notice is
therefore insufficient, and the Motion is continued to July 30, 2024 at 9:00 a.m. to allow
for proper notice.
Preview
Filing # 159638705 E-Filed 10/20/2022 01:26:44 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO: 2019 CA 001939 ZASKIA MERCADO, Plaintiff, vs. CHEDDAR'S CASUAL CAFE, INC., Defendant. / PLAINTIFF’S MOTION TO COMPEL BETTER RESPONSES TO REQUEST TO PRODUCE Plaintiff, ZASKIA MERCADO, by and through the undersigned attorney, moves this Court for the entry of an Order pursuant to Rule 1.380, Florida Rules of Civil Procedure, compelling the Defendant, CHEDDAR’S CASUAL CAFE, INC., to provide better answers to Plaintiff’s Supplemental Interrogatories and Supplemental Request to Produce dated August 4, 2021. As grounds for the motion, the Plaintiff states as follows: 1. Plaintiff, ZASKIA MERCADO, propounded the Supplemental Interrogatories and Supplemental Request to Produce to Defendant, CHEDDAR’S CASUAL CAFE, INC., on August 4, 2021. (Exhibit A) 2. Defendant CHEDDAR’S CASUAL CAFÉ, INC. responded to the Supplemental Interrogatories on September 3, 2021 but failed to provide complete answers (Exhibit B). 3. Defendant CHEDDAR’S CASUAL CAFÉ, INC. responded to the Supplemental Request to Produce on September 3, 2021 but failed to provide complete responses (Exhibit C). 4. Rule 1.380(a)(2), Fla. R. Civ. P. allows for a party to request an order from the court compelling production of documents and answers to interrogatories. The Plaintiff is asking the Court in this case to order the Defendant, CHEDDAR CASUAL CAFÉ, INC., to provide a better answer to Interrogatory #1 which reads as follows: Please state whether or not you have experienced any other incidents involving slip and falls, at, near or on the path/corridor to the bathroom within three (3) years prior to the date of incident. The Plaintiff is asking the Court in this case to order the Defendant, CHEDDAR CASUAL CAFÉ, INC., to provide a better response to Request to Produce #2 which reads as follows: A list of prior incidents involving customer slip and falls at, near, or on the path/corridor to the bathroom at the subject store for the three (3) year period of time immediately preceding the subject incident. (NOTE: please include date of incident, location in store where incident occurred and description of incident sufficient for the Court to determine substantial similarity to the subject incident). 5. The documentation requested by Plaintiff’ is material and reasonably calculated to lead to the discovery of admissible evidence. Moreover, the Plaintiff has a need of the aforementioned documentation in the preparation of its case and is unable to obtain the substantial equivalent of the aforementioned documentation by other means without undue hardship. 6. Defendant’s failure to provide these documents has resulted in substantial prejudice to Plaintiff’s case, and is severely inhibiting Plaintiff’s ability to present all of the relevant information to the trier of fact. 7. Prior to the court hearing this Motion, the undersigned hereby certifies that he has made a good faith effort to resolve this issue with the Defendant’s counsel in order to attempt to avoid the necessity of judicial intervention into this matter, and the undersigned hereby certifies that he will continue to do the same. 8. Plaintiff certifies this Motion is brought in good faith, and not for the purpose of harassment or undue delay. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 20, 2022, I electronically filed the foregoing with the Clerk of Court by using the Florida Courts e-Filing Portal which will send notification of electronic filing to: Kurt M. Spengler, Esq. and Melissa T. Woodward, Esq., Wicker Smith O'Hara McCoy & Ford, P.A., 390 N. Orange Ave., Suite 1000, Orlando, FL 32801, via email at ORLcrtpleadings@wickersmith.com; mwoodward@wickersmith.com; kspigle@wickersmith.com; pnorris@wickersmith.com. /s/ Manuel Stefan, Esq. Manuel “Manny” Stefan, Esq. Florida Bar No.: 0103389 MORGAN & MORGAN, P.A. 4495 South Semoran Blvd. Orlando, FL 32822 Telephone No.: (407) 452-6982 Facsimile No.: (407) 572-0124 Primary email: MStefan@forthepeople.com Secondary email: cvictor@forthepeople.com Attorney for Plaintiff Filing # 132011595 E-Filed 08/04/2021 11:29:46 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO: 2019 CA 001939 ON HON. ROBERT J. EGAN ZASKIA MERCADO, Plaintiff, VS. CHEDDAR'S CASUAL CAFE, INC., Defendant. / PLAINTIFF’S SUPPLEMENTAL INTERROGATORIES TO DEFENDANT COMES NOW the Plaintiff, ZASKIA MERCADO, by and through the undersigned counsel and hereby propounds upon Defendant, CHEDDAR’S CASUAL CAFE, INC., supplemental interrogatory, pursuant to Florida Rule of Civil Procedure 1.340, answers to which will be due within thirty (30) days from the date of service. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 4, 2021, I electronically filed the foregoing with the Clerk of Court by using the Florida Courts e-Filing Portal which will send notification of electronic filing to: Kurt M. Spengler, Esq. and Melissa T. Woodward, Esq., Wicker Smith O'Hara McCoy & Ford, P.A., 390 N. Orange Ave., Suite 1000, Orlando, FL 32801, via email at ORLertpleadings@wickersmith.com. /s/ Manuel Stefan, Esq. Manuel “Manny” Stefan, Esq. Florida Bar No.: 0103389 MORGAN & MORGAN, P.A. 4495 South Semoran Blvd. Orlando, FL 32822 Telephone No.: (407) 452-6982 Facsimile No.: (407) 572-0124 Primary email: MStefan@forthepeople.com Secondary email: cvictor@forthepeople.com Attorneyfor Plaintiff PLAINTIFF'S }a. EXHIBIT PLAINTIFF’S SUPPLEMENTAL INTERROGATORIES TO DEFENDANT 1. Please state whether or not you have experienced any other incidents involving slip and falls at, near, or on the path/corridor to the bathroom within three (3) years prior to the date of incident. ANSWER: 2. If your answer to the preceding question is yes, please provide the date of the incident, location in store where incident occurred and description of the incident such that the Court can determine substantial similarity to the subject incident. ANSWER: SIGNATURE PAGE Defendant, CHEDDAR’S CASUAL CAFE, INC. (Signature on behalf of Defendant.) Print Name Title STATE OF COUNTY OF BEFORE ME, the undersigned authority, duly licensed to administer oaths and take acknowledgments, personally appeared as of Defendant, , being first duly sworn, deposes and says that he/she read the Answers to the foregoing Supplemental Interrogatories, and that they are true and correct to the best of his/her knowledge. SWORN TO AND _ SUBSCRIBED before me, _ this day of , 2021. Notary Public (signature) Notary Public (type, print stamp commission) My Commission Expires: Q Personally Known OR Q Produced Identification Type of Identification Produced: Filing # 132011595 E-Filed 08/04/2021 11:29:46 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO. 2019 CA 001939 ON HON. ROBERT J. EGAN ZASKIA MERCADO, Plaintiff VS. CHEDDAR'S CASUAL CAFE, INC., Defendant. PLAINITFF'S SUPPLEMENTAL REQUEST TO PRODUCE COMES NOW, the Plaintiff, ZASKIA MERCADO, by and through her undersigned attorneys and pursuant to Rule 1.350 of the Florida Rules of Civil Procedure, requests Defendant, CHEDDAR’S CASUAL CAFE, INC., produce the following documents and things to Manuel F. Stefan, Esquire, at the Law Office of Morgan & Morgan, P.A., 4495 South Semoran Blvd., Orlando, FL 32822, within thirty (30) days from the service hereof: 1. A true and correct copy of any and all accident investigation/reporting/risk management manuals and/or videos and/or modules relevant to the accident investigation and reporting for the accident at issue or for any accident on the premises. 2. A list of prior incidents involving customer slip and falls at, near, or on the path/corridor to the bathroom at the subject store for the three (3) year period of time immediately preceding the subject incident. (NOTE: please include date of incident, location in store where incident occurred and description of incident sufficient for the Court to determine substantial similarity to the subject incident). CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 4, 2021, I electronically filed the foregoing with the Clerk of Court by using the Florida Courts e-Filing Portal which will send notification of electronic filing to: Kurt M. Spengler, Esq. and Melissa T. Woodward, Esq., Wicker Smith O'Hara McCoy & Ford, P.A., 390 N. Orange Ave., Suite 1000, Orlando, FL 32801, via email at ORLertpleadings@wickersmith.com. /s/ Manuel Stefan, Esq. Manuel “Manny” Stefan, Esq. Florida Bar No.: 0103389 MORGAN & MORGAN, P.A. 4495 South Semoran Blvd. Orlando, FL 32822 Telephone No.: (407) 452-6982 Facsimile No.: (407) 572-0124 Primary email: MStefan@forthepeople.com Secondary email: cvictor@forthepeople.com Attorneyfor Plaintiff 2 Filing # 134023762 E-Filed 09/03/2021 01:27:14 PM 92358-5/PVN/12444316 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA ZASKIA MERCADO, Plaintiff, CASE NO. 19CA1939-ON vs. CHEDDAR'S CASUAL CAFE, INC., Defendant. / NOTICE OF SERVING ANSWERS TO SUPPLEMENTAL INTERROGATORIES NOTICE IS HEREBY GIVEN that Answers to the Supplemental Interrogatories propounded to, Defendant, Cheddar's Casual Café, Inc., by Plaintiff, Zaskia Mercado, on August 4, 2021, have been furnished via e-mail to: all counsel of record on date shown below. WE HEREBY CERTIFY that a copy hereof has been electronically served via Florida ePortal to: Manuel! Stefan, Esquire, mstefan@forthepeople.com, cvictor@forthepeople.com, ahiramarmoreno@forthepeople.com; on this 3rd day of September, 2021. /s/ Kurt M. Spengler Kurt M. Spengler, Esquire Florida Bar No. 717665 Melissa T. Woodward, Esquire Florida Bar No. 022143 WICKER SMITH O'HARA MCCOY & FORD, P.A. Attorneys for Cheddar's Casual Café, Inc. 390 N. Orange Ave., Suite 1000 Orlando, FL 32801 Phone: (407) 843-3939 Fax: (407) 649-8118 ORLcrtpleadings@wickersmith.com PLAINTIFF’S j3 —_—nal 92358-5/MTW/12444316 DEFENDANT’S ANSWERS TO PLAINTIFF’S SUPPLEMENTAL INTERROGATORIES 1. Please state whether or not you have experienced any other incidents involving slip and falls at, near, or on the path/corridor to the bathroom within three (3) years prior to the date of incident. ANSWER: Defendant objects to this Supplemental Interrogatory on the grounds that it is vague and ambiguous and seeks documentation that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, especially since other “incidents” rarely arise from the same and/or substantially similar circumstances and therefore such documentation is neither relevant to the issues in this lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing objections and preserving the same, and based upona diligent and reasonable investigation conducted, Defendant has been able to identify the following incidents that fall within the parameters of this supplemental request: eS8/23/2015 Provided Guest claims to have slipped on the way to the restroom. Floor was inspected and observed to be clean and dry. Believed to be caused by claimant’s sling back shoes a 2/17/2016 Guest claims to way to the restroom. 2/22/2016 Guest claims to have slipped on the way to the restroom. Believed to be caused by the presence of wet substance on the floor 2/28/2016 Guest claims to have slipped on the way to the restroom. 2 92358-5/MTW/12444316 2. If your answer to the preceding question is yes, please provide the date of the incident, location in store where incident occurred and description of the incident such that the Court can determine substantial similarity to the subject incident. ANSWER: Defendant refers Plaintiff to its Answer to Interrogatory No. 1 as set forth above. Filing # 134023762 E-Filed 09/03/2021 01:27:14 PM 92358-5/MTW/12444332 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA ZASKIA MERCADO, . Plaintiff, CASE NO. 19CA1939-ON vs. CHEDDAR'S CASUAL CAFE, INC., Defendant. / DEFENDANT’S RESPONSE TO SUPPLEMENTAL REQUEST TO PRODUCE Defendant, Cheddar's Casual Café, Inc., by and through the undersigned attorneys, and pursuant to the applicable Fla. R. Civ. P., responds to Plaintiff's Supplemental Request to Produce dated August 4, 2021, as follows: 1. A true and correct copy of any and all accident investigation/reporting/risk management manuals and/or videos and/or modules relevant to the accident investigation and reporting for the accident at issue or for any accident on the premises. RESPONSE: Defendant refers Plaintiff to the attached Cheddar’s Restaurant Manager Handbook attached hereto as Exhibit A, which was previously provided to Plaintiff's counsel on or about on September 1, 2021. 2. A list of prior incidents involving customer slip and falls at, near, or on the path/corridor to the bathroom at the subject store for the three (3) year period of time immediately preceding the subject incident. (NOTE: please include date of incident, location in store where incident occurred and description of incident sufficient for the Court to determine substantial similarity to the subject incident). RESPONSE: Defendant objects to this Supplemental Request on the grounds that it is vague and ambiguous and seeks documentation that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, especially since other “incidents” rarely arise from the same and/or substantially similar circumstances and therefore such documentation is neither relevant to the issues in this lawsuit nor reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the foregoing objections and preserving the same, and based upon a diligent and reasonable investigation conducted, Defendant has been able to identify the following incidents that fall within the parameters of this supplemental request: PLAINTIFF'S } EXHIBIT ee Se DE CASE NO. 19CA1939-ON | Date —=——s|| ~—SséDeescrription Provided _—_—| 8/23/2015 Guest claims to have slipped on the way to the restroom. Floor was inspected and observed to be clean and dry. Believed to be caused by claimant’s sling back shoes way to the restroom. 2/22/2016 Guest claims to have slipped on the way to the restroom. Believed to be caused by the presence of wet substance on the floor way to the restroom. WE HEREBY CERTIFY that a copy hereof has been electronically served via Florida ePortal to: Manuel Stefan, Esquire, mstefan@forthepeople.com, cvictor@forthepeople.com, ahiramarmoreno@forthepeople.com; on this 3rd day of September, 2021. /s/ Kurt M. Spengler Kurt M. Spengler, Esquire Florida Bar No. 717665 Melissa T. Woodward, Esquire Florida Bar No. 022143 WICKER SMITH O'HARA MCCOY & FORD, P.A. Attorneys for Cheddar's Casual Café, Inc. 390 N. Orange Ave., Suite 1000 Orlando, FL 32801 Phone: (407) 843-3939 Fax: (407) 649-8118 ORLertpleadings@wickersmith.com 2