Preview
INDEX NO. 452564/2022
NYSCEF BOC. NO. 1621 RECEIVED NYSCEF: 10/30/2023
In The Matter Of:
PEOPLE OF THE STATE OF NEW YORK v.
DONALD J. TRUMP, et al.
SHERI DILLON
October 27, 2023
NICOLE C. ROBINSON
So Ord ared
ofS 6 1023
HON. ARTHUR F. ENGORON
OCT 30 2023
Original File 102723TRUMP.txt
Min-U-Script® with Word Index
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= INDEX NO. 452564/2022
NYSCEF DOC. NO. 1621 RECEIVED NYSCEF: 10/30/2023
PEOPLE OF THE STATE OF NEW YORK vy. SHERI DILLON
DONALD J. TRUMP, et al. October 27, 2023
Page 2640 | PROCEEDINGS Page 2642
» SOUR ORM CORRE EMAL BRO BARTS 1 THE COURT OFFICER: All rise. Part 37 is now in
= ETE
A gi ONE 8
2 session. Honorable Judge Arthur Engoron presiding. Make
3 sure all cellphones are on silent. Laptops and cellphones
will be permitted, but only to members of the press.
Plaintiff,
There's absolutely no recording or photography of any kind
allowed in the courtroom. Now, be seated and come to order.
Donati tRuMp: vowed RUMP, JR.; ERIC
RaNex TRUM PEN WEISSELBERG, JEFFREYM
TRUMP; THE COURT: Okay. So why are we here at 9:30
instead of 10:00? Because we're going to hear oral argument
SRG ANZA ONAN. TH ENS
VOC,
PROM
UST TRUI
RGANIZAT! IN, LL
INGS. MANAG! | MEMBER: on a motion by Ivanka Trump to quash a subpoena, trial
Rp |20
fenTARE
SORT iat Le cor subpoena issued against her.
10 Re geCe Ee 40 WALL STREE
11 Tread the papers, so, please, don't be too
11
12 repetitive. I'm hoping that we can finish by 10:00. If we
12 an = X
'p 13 can't, then by 10:30. We want to try to finish with the
13 14 current witness, Sheri Dillon, today. And without further
ew Vor Se.
| York
14 October 15 ado, who would like to speak on behalf of the motion?
15
16 BONGRABLE AR THU F, ENG RON, 16 MR. MOSKOWITZ: Good morning, Your Honor. Bennet
Justice, jupreme 17 Moskowitz on behalf of non-party witness Ivanka Trump
18
19 pele
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Fa HOOP (A JAMES
18 First, let me say thank you everyone here, especially Your
Honor, Ms. Greenfield and the parties for giving us the time
19
20 ne
20 for this in the middle of a very busy trial
21 Ag
lew York 1
21 I heard you loud and clear. I have no intention to
22 iets 22 just rehash what's in my moving papers. As Your Honor
23
24
e 23
24
knows, I wasn't afforded a reply opportunity, so I'll take
this opportunity to address things mostly that the AG
25 INKELSTEIN. 25 raised. What I will say just to level set here and I don't
Page 2641 PROCEEDINGS Page 2643
want to get lost in the shuffle with all the papers flying
Ae or. Defen back and forth on thi We're not here about technical
roe, Sti to puite 750
service defects. Thi: is about fundamental issues of
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JESUS M. gerne
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THE COURT: Good. That makes things a lot simpler.
ROBERT SprisetendaT; mu MR. MOSKOWITZ: Right, and hearing only facts that
mes
matter for purposes of the jurisdiction. Ms. Trump does not
We Fes VALE B50. live in New York. She's not domiciled here and despite the
fact that the AG concludes otherwise and doesn't present
HABBA sfobe
M: lO dasASSOCIATES, LLP
10 ee 10 evidence supporting that conclusion, she does not transact
ae
ay - Sie 240
business here. Let me say it again, she does not transact
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11
12 business here. That has a very specific meaning under New
Ky lewDetendats
MORIAN 13 York law.
13
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he 14 Weinstein, Korn & Miller, no offense to Professor
14 N
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as? 16 of Weinstein, Korn & Miller, so that section of Weinstein,
E,eR UMP.
seggonsiaro
16
oH ee
N Arh 10022
17 Korn & Miller provides, Your Honor, that actual place of
17 business under New York law means where that person is
is Po
TR rat ee PEAS TON SANDERS, LLP 19 regularly, physically present and regularly transacts
19
Ah BEYER
20 business.
875SKAIr Aven
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10022
20 Beet WITZ, ESQ.
21
22
Ivanka Trump does not regularly transact business
and does not regularly at any of the addresses where they
22 23 served these subpoenas to these entities at most since 2017
23
enior f ‘ourt Reporters
24
25
TAREE SLORBON AME ERR 24 and if they want an affidavit for that business, that's
fine. By the way, side note, they didn't put in an
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INDEX NO. 452564/2022
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PEOPLE OF THE STATE OF NEW YORK v. SHERI DILLON
DONALD J. TRUMP, et al. October 27, 2023
PROCEEDINGS Page 2644 | PROCEEDINGS Page 2646
affidavit because I urge the Court, and you read the papers, months leading up to this. So if that's the best case they
if you revisit it, maybe you don't need to, the can do, I'm happy with it. It doesn't help them. It helps
correspondence attached to my affirmation, the AG's position me.
on this motion has been like a moving target. There are other cases. The Court doesn't have to
First they said, "Oh, it is a subpoena to these take my word for it. A lot of cases have cited that Gibson
entities." No, it is a subpoena to her. Now I'm hearing in Dunn case and what they rely upon such as this Napoli vs.
their papers for the first time that she transacts business Bern which is 2021 Westlaw 5458747 at page three, 2021 case
at Trump Tower. She does not. Since 2017, she's been there with the line of cases that I found talking about the Gibson
once or twice a year, never for business, to say hello, Dunn case. They'll hook on to that inducement. This guy
10 people including family members for 15 minutes, 30 minutes, 10 had the legal fees sent there, represented that's where he
11 things like that. So there is no basis to say a service on 11 worked, and then he turned around and said ha-ha, fee over
12 an entity at Trump Tower is service on her individually. 12 legal dispute, can't get me there.
13 That's just wrong. 13 Now, there is another new argument and, you know,
4 Let's look at the case law here and I'll address 14 Your Honor, | always tell younger associates there comes a
15 mostly the case law that was cited by my friends across on 15 time in trial where parties go a bridge too far and try not
16 the other side. First, they don't deal with the fact that 16 to do it. Here is the AG's bridge way too far. How they
17 Justice Fried’s decision just as an example, Amelius is 17 assert for the first time and they are getting a little
18 decisive. A non-party, non-domiciliary is not subject to 18 desperate here, respectfully, that Ms. Trump consented to
19 the subpoena power of the court, That's 64 New York State 19 this jurisdiction in this case because she's a party in the
20 3d 855 at 866. Again, that was Justice Fried. 20 special proceedings.
21 When we had the ongoing discussions leading up to 21 They must take us all for fools. I'm looking
22 this motion and still today, perhaps the AG relied on cases 22 around. This is not the special proceedings. They didn't
23 like 2323 Communications Corp. Those cases stand for a 23 issue the subpoenas in the special proceedings. There was
24 principle that's very different which is that where an 24 no trial in the special proceedings, so that's just false on
25 entity is a party, it can be compelled to appear through a 25 its face. And in any event, we could cite case law that
PROCEEDINGS Page 2645 PROCEEDINGS Page 2647
specific person. The entities they subpoenaed are not stands for the proposition, including First Department case
parties, so those cases are not applicable. law and this is pretty basic, that even consent in one
They also talk about this Gibson Dunn case. Let's action does not mean that there's jurisdiction over a person
take a close look at that case, Your Honor. It is a First who consents even in a related action. Here is not what we
Department case, doesn't help them. Maybe they didn't find are dealing with. They're saying we had this years-long
anything better. In that case, you could tell that -- it's social proceeding. She was subject to jurisdiction in that
a Gibson Dunn case, is a dispute over legal fees and the proceeding. Therefore, in this trial, under separate index
person trying to evade service, Your Honor, had the legal number, which we issued subpoenas, she must come today. Not
fees sent to a specific Madison Avenue address. In the few how it works and there's a reason we didn't hear that
10 months leading up to -- 10 argument previously. It doesn't fly.
11 THE COURT: Wait. Wait, you don't mean that the 11 So let's talk about the entities. Again, I urge
12 legal fee was sent. How the bills were sent. 12 Your Honor to revisit the fact that the AG kind of spoke
13 MR. MOSKOWITZ: The bill, excuse me, for the legal 13 from both sides of the mouth about what these subpoenas
4 fees. Invoice me here kind of thing. Then there is a suit 14 were. Itis pretty simple. We all know what happened here.
15 over legal fees. The person trying to say service didn't 15 They had easy jurisdiction over Ivanka Trump. They could
16 apply, jurisdiction didn't apply had been to that address 16 have served her at her house. Much different. We probably
17 for work multiple times leading up to the legal proceedings 17 wouldn't be here today. What appears to happen is they task
18 and leading up to the service. And what the court found 18 ‘one someone in their office for saying let's go to the
19 there was this guy induced Gibson Dunn to rely on this place 19 transcript let's look at documents let's find some entities
20 where he does go to work sometimes. He can't now turn to 20 that have something to do with her and let's fire off
21 the court and say that "I'm actually not really there that 21 subpoenas. That's what they did.
22 much." That's not this case. 22 THE COURT: Wait. Wai Entities that had
23 Ivanka Trump didn't induce anyone to go to Trump 23 something to do with her? Didn't she own some of them and
24 Tower. She hasn't been there working since 2017 and she did 24 didn't some of them own parts of others?
25 not go to work there since then, certainly not in the three 25 MR. MOSKOWITZ: I'll get to that. It is not clear.
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INDEX NO. 452564/2022
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PEOPLE OF THE STATE OF NEW YORK v. SHERI DILLON
DONALD J. TRUMP, et al. October 27, 2023
PROCEEDINGS Page 2648 | PROCEEDINGS. Page 2650
The TTT and OPO entity, she absolutely has an affiliation person.
with those entities as do other people who can competently MR. MOSKOWITZ: That's exactly right. At the end
testify for those entities, but let me stop there. Again, of the day, Your Honor, they just don't have jurisdiction
as non-parties, you don't get to subpoena those entities and over her. They tried with this transient business again
say you must appear via specific person X rather, I'll get articulated to me for the first time in their papers that
to it in a minute, it's black letter law an entity can they submitted to Your Honor and I just addressed it. It's
provide anyone who's competent to testify which goes back to just wrong and if they want an affidavit saying what I just
my point. represented to the Court as an officer and I'll say it again
Iasked them why TTT? Why this OPO entity? Why that she does not transact business at any of those places
10 502 Park? I never got an answer because what they were very 10 they served, I will be happy to do it.
il honest about, and I appreciate, is that they want her to 11 THE COURT: Did she ever transact business?
12 appear and there's no limitation in their mind of what they 12 MR. MOSKOWITZ: Yes.
13 could ask her about because it is really not about these 13 THE COURT: When was the last time she transacted
14 entities. That's just the way that they're trying to get 14 business?
15 jurisdiction over her. 502 Park, I said to them, “Guys, I'm 15 MR. MOSKOWITZ: Before 2017.
16 having trouble here. I can't find anything on my end that 16 THE COURT: Okay. So what?
17 shows what she has to do with this entity. What did you 17 MR. MOSKOWITZ: You have to have jurisdiction over
18 have before you served the subpoena." | didn't get an 18 her now. If someone worked in New York 50 years ago and
19 answer. You don't get to - subpoena powers are awesome ~ 19 leaves, you don't get to say, "Hey, you once worked at this
20 THE COURT: You might get an answer today if there 20 address. Come to trial." That's not how it works. It has
21 is an answer. 21 to be jurisdiction now, transact business here now.
22 MR. MOSKOWITZ: Yeah, I would like to know the 22 THE COURT: How are we going to define now? What
23 answer because | haven't found it. I said, "Please, share 23 if somebody transacts business here, leaves on a vacation or
24 it because if there is something "-- I'll note I spent a 24 a business trip or is away?
25 lot of time. I don't even know that that entity was used 25 MR. MOSKOWITZ: Again --
PROCEEDINGS Page 2649 PROCEEDINGS Page 2651
for anything. It exists, I grant you that. I could THE COURT: A week later, they're not still --
speculate at what it might have been. I have no document MR. MOSKOWITZ: No. The Weinstein, Korn & Miller
that says that like the other two that she was an officer or basic principle addresses that, Your Honor. If it is a
anything like that. She doesn't know what it is and the AG place you regularly return to work such as like I work on
doesn't know what Third Avenue where my law firm offices are. If I leave for
So they weren't served on Ivanka Trump. They were a week and they serve me there, I can't turn around and say,
served at best on these entities. And, by the way, not all "Oh, I was gone that week." Here, you have someone who
cleanly, but again, I'm not here about service stands or didn't work at the place for many, many years. They no
what. If they insist they need those entities, those longer return there for work.
10 entities can appear. | think they should articulate with 10 THE COURT: Let me ask you a question. Did Ivanka
ili why they need those entities, but I understand the 11 submit any sworn statement?
12 defendants will speak for themselves. They offered -- for 12 MR. MOSKOWITZ: On this motion, no, because again,
13 the two that we concern that they offer, they offered for 13 I didn't hear this argument and didn't get a reply for it.
14 someone who has lived here appear and testify for those 14 I'm happy to submit one now. I would have done it ina
15 entities, which you are allowed to do. 15 reply brief.
16 New York law again, I pulled out Weinstein, Korn & 16 THE COURT: Now is too late. I'm hoping to decide
17 Miller. You can look at Section 230504, "If a subpoena to 17 this today and if she testifies, it will be fairly soon.
18 testify is served on and is addressed to an entity, that 18 MR. MOSKOWITZ: I wasn't put on notice that that
19 entity may choose the person who will be deposed," period. 19 was their argument because they kept changi it. How could
20 So they cite -- 20 I respond to something they didn't articulate? I can't
21 THE COURT: I'm very familiar with that concept 21 guess what their position is.
22 that the entity has the right in the first instance to 22 THE COURT: Well, it's standard practice in New
23 decide who to produce. I think we are in a different 23 York Jaw that you need to have an affidavit from someone
24 situation than the normal one here. As we all recognize, we 24 with personal knowledge if you're going to start spouting
25 are not looking for the entities. They're looking for the 25 facts, but --
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PEOPLE OF THE STATE OF NEW YORK v. SHERI DILLON
DONALD J. TRUMP, et al. October 27, 2023
PROCEEDINGS Page 2652 | PROCEEDINGS Page 2654
MR, MOSKOWITZ: I agree, and they don't have one sorry. She is and that changes things fundamentally.
either showing the opposite, but I'm happy to put one in You're no longer in the case. You're not a resident. You
tod: don't work here. You don't have jurisdiction over that
THE COURT: I'm not sure that they can prove a person. That's the breaks.
negative. Ivanka would be the person best able to say when THE COURT: The expression is "that is the breaks."
she ever -- when was the last time she worked in New York MR. MOSKOWITZ: I'm referring in the singular
or whether she still works in New York, what she owns here, situation, but I appreciate Your Honor’s.
et cetera, et cetera, but -- THE COURT: All right. Anything else on your
MR. MOSKOWITZ: I could get it to the Court ASAP. initial -- I don't know whether we will have time for a
10 THE COURT: I promise you I'm not a "Ha-ha, I got 10 reply, but was that it for now?
1i you" judge. I'm not trying to say, "Ha-ha, you didn't have 11 MR. MOSKOWITZ: Yes, Your Honor. J mean, I
12 an affidavit from her," but it does weaken your argument 12 appreciate the possibility if 1 hear something new, to
13 because you keep talking about what she does and doesn't do. 13 address it.
14 She would know better than you. 4 THE COURT: Probably. Probably.
15 MR. MOSKOWITZ: I agree, and if { had been afforded 15 MR. MOSKOWITZ: Yeah.
16 an opportunity to reply, I would have submitted it. I did 16 THE COURT: Okay. It is my understanding that the
17 not want to disregard what the Court advised me which was no 17 defendants themselves do not have standing to contest this,
18 reply afforded, which was the e-mail I received. 18 but I'll let them talk if they want to.
19 THE COURT: Whether you should have needed a reply, 19 MR. KISE: Thank you, Your Honor. I don't know
20 waited for a reply, a reply is to respond to their 20 that I would say we don't have standing since it affects the
21 arguments, but if you don't make out a prima facie case by 21 impact of the trial and it affects the course of the trial,
22 an affidavit from Ivanka saying "I don't do these things. I 22 but in all events, | appreciate the opportunity to address.
23 don't live there,” et cetera, I don't think that should have 23 THE COURT: We always like to hear your mellifluous
24 been in the reply. That should have been in moving papers, 24 voice.
25 but that’s just my opinion. All right, continue. 25 MR. KISE: That's good. At least there's something
PROCEEDINGS, Page 2653 PROCEEDINGS Page 2655
MR. MOSKOWITZ: Thank you, Your Honor. So going positive that may happen here. I will try not to go over as
back to the idea that corporations can designate their own you suggested, Your Honor. I'm not going to belabor the
witnesses, they cite the Standard Fruit case, totally papers. I know you've read them and you've seen in our
different. In that case -- by the way, it was from papers that we view the subpoena truly as just continued
1977 -- the court did allow a party to subpoena an harassment of President Trump's children. They were all
out-of-state witness. It was after the witness provided by named and included in this case as leverage. There's no
the subpoenaed corporation was unable to testify to the serious evidence that any of them had any involvement in the
relevant facts. And even then, the court allowed the Statement of Financial Condition preparation.
corporate entity to select between two different Ms. Trump was dismissed from the lawsuit by the
10 individuals. 10 First Department and now despite having a year to depose Ms.
11 THE COURT: When I said, I read all the papers, I 11 Trump in this case, several months post-dismissal to depose
12 didn't read all the cases, but that case, I did read. 12 her, now all of a sudden in the trial, the Attorney General
13 MR. MOSKOWITZ: Right. Right. So again, that's 13 claims that her testimony is somehow essential. I thought
14 our point. The corporation gets to put someone up and it 14 Mr. Wallace was going to object when he stood up. I'm just
15 has to be someone who can speak to the facts, again, which 15 so used to it. No. No.
16 is why my first question to them when we got notice that 16 THE COURT: Obviously, testimony does not have to
17 they were trying to serve these subpoenas, "Hey, what 17 be “essential.”
18 testimony are you going for" and we quoted this and it is in 18 MR. KISE: Even if it were relevant then, then they
19 the exhibits to my affirmation, They were honest about it. 19 should have done it during discovery. They'te claiming now
20 I appreciate that. It was basically limited. It was, "She 20 that only she can provide this information and if it was so
21 knows this, she knows that, but I can't really limit it," so 21 essential, then why are we here in the middle of trial?
22 they want her here. They want it to be unlimited. They 22 There was no even attempt to do a de benne esse deposition
23 didn't depose her. They could have. They didn't de benne 23 which was done with other witnesses who may or may not be
24 esse, you know, subpoena her. They could have done that. I 24 available for trial.
25 guess they didn't think she'd be out of the case. I'm 25 The exhibits attached to their motion demonstrate
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PEOPLE OF THE STATE OF NEW YORK v. SHERI DILLON
DONALD J. TRUMP, et al. October 27, 2023
PROCEEDINGS Page 2656 | PROCEEDINGS Page 2658
that this is an inexcusable delay. All of the documents 1 information about that entity, about Standard F1 about
that I saw that were attached as exhibits were all things 2 that specific entity. They produced, as was their right,
they had in their possession for at least a year, if not 3 the first witness, the corporate designee to testify about
more. The Attorney General certified in their NOI, their 4 relevant facts. Only after that witness testified and there
note of issue, that all discovery was complete and the 5 was a demonstration that that witness could not -- could
service of that prohibits reopening. I'll cite the Court to 6 not testify did the court order another witness.
the Melcher case, 38 AD3d 376. It is a First Department 7 The Amelius case, which we also cite 64 NY Supp. 3d
case that stands for that proposition that their 8 855, draws the distinction further bearing out, Standard
certification meant that they've completed their 9 Fruit draws the distinction between a non-party corporation
10 investigative efforts for trial, their discovery efforts for 10 and a corporation under investigation. Here, you have three
11 trial and yet, this is tantamount to a discovery subpoena. 11 non-parties, none of which are under investigation, none of
12 Nothing was done. 12 which have any association heretofore with this case.
13 To us, again, our answer is obvious they want to 13 So, the subpoenas were not served. They were
14 put Ms. Trump on the stand, create another media event while 14 served all on Ms. Trump. They were served on the non-party
15 I'm always certainly happy to have the Attorney General in 15 entities. Those non-party entities are entitled to
16 the courtroom. her presence today demonstrates that that's 16 designate a corporate representative and the Attorney
17 what this is about. 1 doubt she came here to hear Ms. 17 General has the burden in the first instance to demonstrate
18 Dillon. I doubt she came here to hear Mr. Flores. 18 that that designation was inadequate. The Barone case, 260
19 Although, I'm sure the testimony will be riveting. Really 19 AD2d 417 and the other cases we cite stands for that
20 the purpose here is to focus on another one of Mr. Trump's 20 proposition that there must be some demonstration that the
21 children who has been dismissed from the lawsuit. 21 initial witness that is designated by the entity is
22 To the jurisdictional point that Mr. Moskowitz 22 inadequate.
23 raised, there's just no legal authority for the Court to 23 There's no showing that the individual that's been
24 require a non-party, non-domiciliary to appear at trial as a 24 designated here by the corporate entities, Eric Trump is
25 representative of a non-party entity. It's non, non, non. 25 inadequate. In fact, the Attorney General herself alleged
PROCEEDINGS Page 2657 PROCEEDINGS Page 2659 |
And the Court itself could not compel her attendance under in the complaint that Eric Trump is responsible for all
these circumstances. aspects of management. I mean, that's their allegation. So
The service issue, I'll just touch on briefly. The I don't see how they can claim without any explanation
service on -- and the cases -- I'm not citing all the that -- or any proof that Eric Trump is now somehow an.
papers. They're in their papers, Your Honor. The service inadequate corporate designee, and they're not entitled to
on a non-party entity registered agent is not service. It raise that issue unless and until they make that -- make
is not service on Ms. Trump in her individual capacity and a that showing and that has been established by the court.
non-party, non-domiciliary not subject to the court's Finally, and just briefly, the subpoena itself
subpoena power does not constitute service on Ms. Trump. revealing what this is all about is truly overly broad.
10 And I'll cite, as in our papers, the Genger case, 10 There is no attempt to narrow the issues. They just want
11 50 Misc.2d 361. The Attorney General argues that Ms. Trump 11 another free-for-all on one of President Trump's children.
12 did not contest jurisdiction in the special proceeding, but 12 There's no real relevanceto the proceeding. It's more in
13 that's frankly a complete non sequitur. The Coutts case 13 the nature of a subpoena for a deposition where we're going
14 they cite is completely in opposite. That's a judgment 14 to spend seven hours. "What do you know about this?” "What
15 debtor who fled the jurisdiction after judgment that then 15 do you know about that"?
16 filed a parallel action against the creditor ina New York 16 THE COURT: She was deposed already in a different
17 court. 17 case related, if you pardon the expression, so it is not
18 There was no dispute that the court could obtain 18 like they're not -- it is not like a total shot in the
19 the jurisdiction over the debtor in the very case at issue, 19 dark.
20 but here, you have Ms. Trump is not a party. She was 20 MR. KISE: It may not be a total shot in the dark,
21 dismissed by the First Department. She's not a judgment 21 but the subpoena is pretty close. The lights are on dimly
22 debtor and she's not actively litigating any affirmative 22 and they're shooting off to the right when there's someone
23 case in New York. 23 over on the left that's their target. So yeah, maybe it is
24 The Standard Fruit case that they cite is also in 24 in the same room, but the lights are dim and they're going
25 opposite. There, an investigative subpoena sought 25 in the wrong direction. So there's -- if they had a
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PEOPLE OF THE STATE OF NEW YORK v. SHERI DILLON
DONALD J. TRUMP, et al. October 27, 2023
PROCEEDINGS Page 2660 Page 2662
specific focus, then they would have put that in the this case. She was dismissed in the case the end of June.
subpoena. If they had a specific purpose, they would have There was still time to do the de benne esse deposition and
put that in the subpoena. they did not and instead of coming before this Court
And frankly, had they had such specific focus and forthright and saying, "Listen, we want Ivanka Trump and
specific purpose, we wouldn't be here because they would these are the reasons why," they come up with this Ruth
have either deposed Ms. Trump during the long course of Goldberg, coming up with these three companies that have
discovery in this case. They had ample opportunity to nothing to do with it. We want them.
depose anyone they wanted, She was certainly available for Mr. Moskowitz in consultation with my client says,
that while she was a party. And then after she wasn't a you know what, for the two companies that have something to
10 party as of June of this year, they still had several months 10 do with Trump, Eric Trump is willing to be the corporate
11 to conduct a de benne esse deposition. 11 representative because he's going to be testifying anyway
12 They haven't even deposed -- made any showing to 12 and they said, "Well, no, no, not so fast." They were
13 the Court as to why that wouldn't suffice or wouldn't have 13 smoked out as Your Honor pointed out. They want Ivanka
14 sufficed. Even after the commencement of trial, they 14 Trump. If they want Ivanka Trump, there is a mechanism to
15 haven't even proposed that. And I'm not going to agree to 15 do it. If they do it in the appropriate way and even if
16 that on behalf of Mr. Moskowitz’ client. I'm just showing 16 there is still an objection by Mr. Moskowitz, that becomes a
17 that it just shows the real purpose here is to drag her into 17 motion that's before Your Honor. But right now, all there
18 court. It is bad faith and it is harassment of another one 18 are are three subpoenas, three subpoenas in our view in
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CVCV21-0197638
FOULKE, ET AL. VS. FORD MOTOR COMPANY
Case Number: CVCV21-0197638
This matter is on calendar for review regarding status of dismissal. At the hearing on April 8, 2024, counsel for
Plaintiff informed the Court that the only issue that remains pending in Federal Court is attorney fees. No status
report was filied informing the Court of the status of attorney fees and no Request for Dismissal has been filed.
An appearance is necessary on today’s calendar.
Ruling
NAIR, et al. vs GENERAL MOTORS, LLC, A LIMITED LIABILITY COMP...
Jul 18, 2024 |
Civil Unlimited (Other Breach of Contract/Warr...) |
23CV051739
23CV051739: NAIR, et al. vs GENERAL MOTORS, LLC, A LIMITED LIABILITY
COMPANY, et al.
07/18/2024 Hearing on Demurrer Demurrer to the Plaintiff's First Amended Complaint;
MPA, Declaration and Request for Judicial Notice; filed by GENERAL MOTORS, LLC, a
limited liability company (Defendant) in Department 24
Tentative Ruling - 07/10/2024 Rebekah Evenson
The Hearing on Demurrer Demurrer to the Plaintiff's First Amended Complaint; MPA,
Declaration and Request for Judicial Notice; filed by GENERAL MOTORS, LLC, a limited
liability company (Defendant) scheduled for 07/18/2024 is continued to 10/03/2024 at 09:00 AM
in Department 24 at Rene C. Davidson Courthouse .
The Demurrer to, and Motion to Strike Portions of, Plaintiffs’ First Amended Complaint by
Defendant General Motors LLC are CONTINUED to October 3, 2024 at 9:00 a.m. in
Department 24.
Defendant demurrers to Plaintiffs’ Fourth Cause of Action for Fraud and Fifth Cause of Action
for Violation of Business & Professions Code section 17200 et seq. based, inter alia, on the
economic loss rule.
In opposition, Plaintiffs cite Dhital v. Nissan North America Inc. (2022) 84 Cal.App.5th 828,
840-841, which held that concealment-based claims for fraudulent inducement to enter a contract
(the same type of claim alleged in this case) are not barred by the economic loss rule.
The Dhital case has been accepted for review by the California Supreme Court (Case No.
S277568). The California Supreme Court has stayed its consideration of the appeal in the Dhital
case pending its resolution of a similar issue (whether claims for fraudulent concealment are
barred by the economic loss rule) in Rattagan v. Uber Technologies, Case No. S272113. Oral
arguments in the Rattagan case were held on June 4, 2024.
For the sake of judicial economy, the Court continues Defendant’s demurrer in this case pending
the decision in the Rattagan case.
By no later than September 19, 2024, the parties may file and serve supplemental briefs of no
more than five double spaced pages addressing the effect, if any, of the decision in the Rattagan
case on this demurrer.
The Initial Case Management Conference scheduled for August 6, 2024 is CONTINUED to
November 19, 2024 at 09:00 AM in Department 24.
The Initial Case Management Conference scheduled for 08/06/2024 is continued to 11/19/2024
at 09:00 AM in Department 24 at Rene C. Davidson Courthouse .
Ruling
Rodolfo Macedo et al. vs American Honda Motor Co., Inc.
Jul 15, 2024 |
STK-CV-UBC-2023-0008324
Parties to appear in person or remotely. Department 10C is open for in person appearances. Should counsel/parties prefer to appear remotely, follow the instructions below. There is a dedicated conference bridge lines for Dept 10C. Call into dedicated conference bridge line at the time set for the hearing. To attend the remote hearing in Dept 10C: Call into (209) 992-5590, then follow the prompts and use the Bridge # 6937 and Pin # 6822.
Ruling
PEOPLE OF THE STATE OF CALIFORNIA, EX REL., ALLSTATE INSURANCE COMPANY VS ADAM AVELARDO PEREZ, ET AL.
Jul 16, 2024 |
21STCV45088
Case Number:
21STCV45088
Hearing Date:
July 16, 2024
Dept:
71
Superior Court of California
County of Los Angeles
DEPARTMENT 71
TENTATIVE RULING
PEOPLE OF THE STATE OF CALIFORNIA, ex rel., ALLSTATE INSURANCE COMPANY,
vs.
ADAM AVELARDO PEREZ, et al.
Case No.:
21STCV45088
Hearing Date:
July 16, 2024
Plaintiff-Relator Allstate Insurance Companys motion to compel the deposition of Nonparty ProCare Funding, LLC for business records is granted.
ProCare is
ordered to appear for deposition and produce documents within 30 days of this ruling.
Plaintiff-Relators Allstate Insurance Companys (Allstate) (Plaintiff) moves to
compel the deposition of Non-party ProCare Funding LLC (ProCare) to appear for deposition to produce business records issued on November 29, 2023.
(Notice of Motion, pg. 2
; C.C.P. §2025.480(a).)
Plaintiff moves on the basis ProCare failed to produce any responsive documents in compliance with the lawfully issued subpoena without justification.
(Notice of Motion, pg. 2.)
Meet and Confer
A motion to compel a deposition must be accompanied by a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.
(C.C.P. §§
2016.040
,
2025.480
(b).)
Plaintiffs counsel declares that on March 19, 2024, she sent Defendants counsel Reed a detailed meet and confer letter explaining the deficiencies in ProCares purported objections to the subpoena.
(Decl. of Stassi ¶6, Exh. D.)
Plaintiffs counsels declaration substantially complies with the requirements of C.C.P. §2016.040.
Background
On December 1, 2023, Plaintiff served a notice for the deposition for production of business records to ProCare set for December 19, 2023.
(Decl. of
Stassi
¶3, Exh. A.)
On January 19, 2024, ProCares counsel set forth ProCares purported objections to the subpoena in a letter.
(Decl. of
Stassi
¶5, Exh. C.)
Plaintiff filed the instant motion on March 22, 2024.
ProCare filed its opposition on July 3, 2024.
Plaintiff filed its reply on July 8, 2024.
Discussion
Where a deponent fails to produce any document, the subpoenaing party may move the court for an order compelling the production of documents, upon a showing of good cause.
(C.C.P. §
2025.480
(a);
see also Thai v. Richmond City Ctr., L.P.
(2022) 86 Cal.App.5th 282, 289.)
Good cause may be established where the request is made in good faith and that the documents sought are relevant to the subject matter and material to the issues in the litigation.
(
Associated Brewers Distributing Co. v. Superior Court
(1967)
65 Cal.2d 583, 58
6-587.)
Documents are discoverable from third parties where they are reasonably likely to lead to the discoverable information or aid in evaluation of the claims. In the context of discovery, evidence is relevant if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement.
(
Moore v. Mercer
(2016) 4 Cal. App. 5th 424, 447.)
The broad scope of permissible discovery is equally applicable to discovery of information from a nonparty as it is to parties in the pending suit.
(
Johnson v. Superior Court
(2000) 80 Cal.App.4th 1050, 1062.)
At this stage, relevance is construed broadly and [a]dmissibility is not the test, information unless privileged, is discoverable if it might reasonably lead to admissible evidence.
(
Stewart v. Colonial W. Agency, Inc
. (2001) 87 Cal.App. 1006, 1013.)
Here, good cause exists to compel compliance with Plaintiffs deposition subpoena.
The only documents Plaintiff has requested from ProCare are related to the transactions that form the fraudulent scheme alleged in the operative pleading.
(SAC ¶¶75-92.)
Plaintiff has pursued party discovery, including written interrogatories and requests for production of documents served on New Hope, which has revealed that ProCares arrangement with New Hope is similar to the arrangement New Hope has with Healthcare Financial Solutions, LLC (HFS).
(Decl. of Stassi ¶8.)
Specifically, like HFS, ProCare agreed to (and did) purchase patient accounts from New Hope prior to any patient services (MRIs) having been rendered and paid New Hope up front for the accounts, as set forth in the Accounts Receivable Purchase Agreement Between ProCare Funding, LLC (Buyer) and Adam Avelardo Perez d/b/a New Hope Imaging Services (Seller) dated March 10, 2021 that Defendants produced in discovery.
(Decl. of Stassi ¶8.)
The agreement was subsequently amended in 2019, and Defendants produced the amendment and a bill of sale from 2021 relating to ProCares purchase of New Hope patient accounts.
New Hopes bank account records that Plaintiff subpoenaed from the banks show that ProCare paid New Hope at least $65,710.00 pursuant to this arrangement.
(Decl. of Stassi ¶8; Supp-Decl. of Stassi ¶4, Exh. G.)
Plaintiffs deposition subpoena does not seek documents that would disclose patient information, and to the extent that some patient information may be identified in responsive documents, HIPAA allows such disclosure under an appropriate protective order such as the one that exists in the instant matter.
ProCare claims it need not comply with the subpoena because it requires production of confidential and sensitive business information.
ProCare fails to meet its burden to demonstrate exactly what confidential and sensitive information it would be forced to produce and why the protective order does not provide sufficient protection for that material.
If an objection is based on a claim of privilege or a claim that the information sought is protected . . . the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log. (C.C.P. §2031.240(c)(1);
see also HLC Properties, Limited v. Superior Court
(2005) 35 Cal.4th 54, 59 [The objecting party has the burden to file evidence of the preliminary facts establishing a privilege exists.].)
Here, ProCare has not demonstrated that any such privilege or protection it claims in its objections applies.
ProCares objections do not describe any of these purportedly confidential and sensitive documents with particularity, nor has it produced any privilege log.
Further, any concern ProCare may have is outweighed by Plaintiffs need for the documents and the protections available under the existing protective order.
(
See
Supp.-Decl. of Stassi ¶3, Exh. F.)
ProCares objections that the subpoena is overly broad and oppressive are unavailing because it fails to make a showing of undue burden.
(C.C.P. §2020.220(e) [subpoenaed person bears the burden of demonstrating that the information is from a source that is not reasonably accessible because of undue burden or expense];
Vasquez v. California School of Culinary Arts, Inc.
(2014) 230 Cal.App.4th 35, 42 [stating subpoenaed entity may only oppose production of electronically stored information on the basis that the information is from a source that is not reasonably accessible because of undue burden or expense].)
ProCares conclusory statements do not satisfy its burden to demonstrate undue burden and expense.
The Court grants Plaintiffs motion pursuant to C.C.P. §2025.480 and orders ProCare to
appear for deposition and produce documents and things within thirty (30) days of this Courts ruling
.
Accordingly, Plaintiffs motion is granted.
Conclusion
Plaintiffs motion to compel ProCares compliance with Plaintiffs deposition subpoena for production of business records is granted.
ProCare to appear for deposition and produce the requested documents with 30 days of this ruling.
Moving Party is to give notice of this ruling.
Dated:
July _____, 2024
Hon. Daniel M. Crowley
Judge of the Superior Court
Ruling
KATHRYN BURDGE vs AIRSTREAM, INC.
Jul 18, 2024 |
24CV00800
24CV00800
BURDGE v. AIRSTREAM INC.
AIRSTREAM’S MOTION TO STAY
The motion to stay is denied.
I. BACKGROUND
Kathryn Burdge’s (“Burdge’) amended complaint, filed on March 26, 2024, alleges a
violation of the Song-Beverly Consumer Warranty Act in relation to her purchase of a 2023
Airstream Atlas RV. She purchased the Airstream in Temecula, California and she resided in
Page 6 of 9
Santa Cruz County at the time of the purchase. Burdge asserts various deficiencies/defects with
the RV.
In connection with the purchase of the Airstream, Burdge signed a Limited Warranty
which stated, in part, the following: “LEGAL REMEDIES: EXCLUSIVE JURISDICTION FOR
DECIDING LEGAL DISPUTES RELATING TO THE ALLEGED BREACH OF EXPRESS
WARRANTY AND BREACH OF THE IMPLIED WARRANTIES ARISING BY
OPERATION OF LAW AS WELL AS THOSE RELATING TO REPRESENTATIONS OF
ANY NATURE RESTS IN THE COURTS WITHIN THE STATE OF MANUFACTURE,
WHICH IS OHIO.” (Ex. B to Dec. of March.)
This language is found on the second page of the Limited Warranty and is the second
paragraph before the signature line for the purchaser. The sales contract is 6 pages long and
signatures were required on each page and, on some pages, multiple signatures on each page.
II. MOTION
Airstream seeks to stay this action to allow Burdge to re-file the case in Ohio, the forum
selection state. Airstream bases its motion on the above-referenced forum selection clause
contained in the signed limited warranty. Airstream contends a motion to enforce a forum
selection clause is a motion to stay (or dismiss) the action to allow a plaintiff to file in the proper
court.
Airstream argues the forum selection provision is mandatory and reasonable. Further,
Airstream acknowledges Burdge cannot be compelled to waive her rights under Song-Beverly,
and thus, it will stipulate to have the Ohio courts apply Song-Beverly in this case. Airstream
contends a stay would allow for time to determine if the Ohio courts would apply Song-Beverly.
If they will not, then Burdge could bring the case back to Santa Cruz.
Burdge opposes the stay. She argues Airstream failed to provide evidence demonstrating
she freely and voluntarily agreed to the forum selection clause. Even though Burdge signed the
limited warranty “she had to sign the document even if she did not understand the importance of
the forum selection clause.” (Opp at pg. 3.) That is, Burdge was required to sign the
acknowledgment of document and that does not prove she waived her rights under Song-Beverly
freely and voluntarily.
Burdge asserts Airstream failed to provide evidence that the designated forum will not
diminish her rights afforded under California law. Specifically, she argues, even if the court finds
she freely and voluntarily agreed to the forum selection clause, Airstream cannot show that Ohio
law will not diminish her substantive rights. Burdge contends Airstream’s offer to stipulate to
have the Song-Beverly apply in Ohio is insufficient because the choice of law in the Limited
Page 7 of 9
Warranty states that Ohio law will govern procedural issues and how the express warranty is
construed and interpreted.
III. DISCUSSION
“Trial courts generally have the inherent power to stay proceedings in the interests of
justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33
Cal.App.4th 1484, 1489; see also Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1376-79;
CCP § 128(a)(3) [“Every court shall have the power to do all of the following: To provide for the
orderly conduct of proceedings before it, or its officers.”].)
"The procedure for enforcing a forum selection clause is a motion to stay or dismiss for
forum non conveniens." (Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1294.)
“California law is ‘in accord with the modern trend which favors enforceability of such
[mandatory] forum selection clauses. [Citations.] No satisfying reason of public policy has been
suggested why enforcement should be denied a forum selection clause appearing in a contract
entered into freely and voluntarily by parties who have negotiated at arm's length. For the
foregoing reasons, we conclude that forum selection clauses are valid and may be given effect, in
the court's discretion and in the absence of a showing that enforcement of such a clause would be
unreasonable.’ [Citation.]” (Quanta Computer Inc. v. Japan Communications Inc. (2018) 21
Cal.App.5th 438, 444-445.)
“‘California courts will refuse to defer to the selected forum if to do so would
substantially diminish the rights of California residents in a way that violates our state's public
policy.’ [Citation.]” (Verdugo v. Alliantgroup, L.P. (2015) 237 Cal.App.4th 141, 147.) “The party
opposing enforcement of a forum selection clause ordinarily ‘bears the substantial burden of
proving why it should not be enforced.’ [Citations.] That burden, however, is reversed when the
claims at issue are based on unwaivable rights created by California statutes. In that situation,
the party seeking to enforce the forum selection clause bears the burden to show litigating
the claims in the contractually designated forum ‘will not diminish in any way the
substantive rights afforded … under California law.’ [Citations.]” (Id.) (Emphasis added.)
In this case, while she did sign the limited warranty, the court agrees with Burdge that the
warranty was not signed knowingly as to the forum selection clause and that application of the
clause would be unreasonable and/or unfair. The clause is buried in the second to the last
paragraph and is written in legalese such that a reasonable consumer could not be expected to
understand they were acquiescing to file a lawsuit in Ohio. The exclusive jurisdiction section
does not adequately inform the consumer that they would need to file suit in Ohio for warranty
issues, especially given that Burdge lives in California and purchased the Airstream in
Page 8 of 9
California. The court also notes the length of the sales contract and number of signatures
required as factors which balance in Burdge’s favor.
The court does not find Airstream has carried its burden in demonstrating that Burdge’s
substantive rights will not be diminished in any way if the case is brought in Ohio. Despite the
offer of Airstream’s counsel to stipulate to apply California law in Ohio, there is no guarantee
the Ohio courts will agree to this arrangement; that is, what is the effect of the stipulation in the
Ohio courts? Second, Airstream’s proposal would create two pending actions, which does not
promote judicial economy. Third, having California courts apply California law simply makes
more sense in terms of protecting Burdge’s rights under the Song-Beverly Act and for efficient
case management.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Page 9 of 9
Ruling
CLEMENTS, BOBBY vs ODAY, JEFF
Jul 19, 2024 |
CV-21-002417
CV-21-002417 – CLEMENTS, BOBBY vs ODAY, JEFF – Defendants’ Motion for Terminating and Monetary Sanctions and in the Alternative Evidentiary Sanctions – GRANTED, in part, Denied in part, unopposed.
The Court finds that Plaintiff’s failure to comply with the Court’s order of February 16, 2023, compelling Plaintiff’s responses to Defendant’s properly propounded discovery within fourteen (14) days, as well as Plaintiff’s failure to comply with the Court’s verbal admonishment in that regard at the Case Management Conference of October 30, 2023, constitutes a willful failure to comply with the Court’s orders that warrant the imposition of terminating sanctions against Plaintiff. (Code of Civil Procedure §§2023.010 and 2023.030; Department of Forestry & Fire Protection v. Howell (2017) 226 Cal.Rptr.3d 727, rehearing denied, review denied; Parker v. Wolters Kluwer United States, Inc. (2007), 149 Cal.App.4th 285; Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th 913; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 6050.
Monetary Sanctions of attorney’s fees and costs in the sum of $1560.00 are hereby awarded against Plaintiff payable to Defendant’s Counsel, Aleshia M. White within thirty (30) days of service of this order on Plaintiff.
Ruling
Verdin vs. Nissan North America, Inc.
Jul 16, 2024 |
23CV-0202892
VERDIN VS. NISSAN NORTH AMERICA, INC.
Case Number: 23CV-0202892
This matter is on calendar for review regarding status of mediation. No status report has been filed.
An appearance is necessary on today’s calendar.
Ruling
OREN BEN ELISHA, ET AL. VS CHRISTINA YING DONG, ET AL.
Jul 18, 2024 |
24STCV08602
Case Number:
24STCV08602
Hearing Date:
July 18, 2024
Dept:
72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE RULING
OREN BEN ELISHA, et al.,
Plaintiffs,
v.
CHRISTINA YING DONG, et al.,
Defendants.
Case No:
24STCV08602
Hearing Date:
July 18, 2024
Calendar Number:
5
Defendants Christina Ying Dong (Dong) and Sylmar Calvert LLC (Sylmar) (collectively, Defendants) move to expunge the notice of lis pendens currently recorded on the property located at 14401 Calvert Street, Van Nuys, California 91311 (the Property). Defendants additionally move for an award of attorneys fees.
The Court GRANTS Defendants motion and ORDERS the expungement of Plaintiffs lis pendens on the Property.
Background
This case relates to failed negotiations between Plaintiffs Oren Ben Elisha and Yosef Ben Elisha (Plaintiffs) and Defendant Dong to purchase real property located at 14401 Calvert Street, Van Nuys, California 91311 (the Property) through Defendant Sylmar.
On July 27, 2023, Dong entered into a purchase agreement to purchase the Property and opened escrow. (Dong Decl. ¶ 5.)
In August of 2023, Dong offered Plaintiffs an opportunity to invest in an entity that would take title to the Property. (Dong Decl. 6.) On August 9, 2023, Dong filed the Articles of Organization for Sylmar for this purpose. (Dong Decl. ¶ 7, Ex. A.) The parties were scheduled to close escrow by February 28, 2024. (Dong Decl. ¶ 8.)
Plaintiffs filed this action on April 5, 2024, raising claims for (1) resulting trust; (2) constructive trust; (3) specific performance; (4) quiet title; (5) accounting; (6) breach of contract; (7) breach of fiduciary duty; and (8) dissolution of partnership.
Request for Judicial Notice
The Court takes judicial notice of Exhibits 1 and 3 to Plaintiffs opposition as public records. The Court does not take notice of the truth of their contents.
Evidentiary Objections
The Court overrules Plaintiffs evidentiary objections.
Legal Standard
A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged. The notice may be recorded in the office of the recorder of each county in which all or part of the real property is situated. The notice shall contain the names of all parties to the action and a description of the property affected by the action. (Code Civ. Proc., § 405.20.)
Except in actions subject to Section 405.6, the claimant shall, prior to recordation of the notice, cause a copy of the notice to be mailed, by registered or certified mail, return receipt requested, to all known addresses of the parties to whom the real property claim is adverse and to all owners of record of the real property affected by the real property claim as shown by the latest county assessment roll. &. Immediately following recordation, a copy of the notice shall also be filed with the court in which the action is pending. Service shall also be made immediately and in the same manner upon each adverse party later joined in the action. (Code Civ. Proc., § 405.22.)
At any time after a notice of pendency of action has been recorded, any party. . . with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice. (Code Civ. Proc., §405.30.)
A lis pendens may be expunged either (1) if the pleadings do not contain a real property claim, or (2) if the court finds that the party claiming the lis pendens has not established by a preponderance of the evidence the probable validity of the real property claim. (Code Civ. Proc., §§ 405.31, 405.32.)
The party asserting the lis pendens has the burden of proof under Section 405.31 and Section 405.32.¿(Code Civ. Proc., § 405.30) The burden is to demonstrate that their pleadings contain a real property claim and that the probable validity of their real property claim can be established by a preponderance of the evidence. (Code Civ. Proc., §405.31; see also McKnight v. Superior Court (1985) 170 Cal. App. 3d 291, 298 [the burden is upon the recording party to demonstrate by a preponderance of the evidence that the action was commenced and prosecuted for a proper purpose and in good faith] .) Probable validity exists when it is more likely than not that the claimant will obtain a judgment on the claim. (Code Civ. Proc., § 405.3.)¿
Any time after a notice of pendency of action has been recorded the court may also upon motion by any person with an interest in the property, require the claimant to give the moving party an undertaking as a condition of maintain the notice in the record title. (Code Civ. Proc., § 405.34)
Discussion
Procedural Defects
Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content specified in Section 1013a has been recorded with the notice of pendency of action. (Code Civ. Proc., § 405.23.)
Defendants contend that the lis pendens is subject to expungement under Code of Civil Procedure, section 405.23 because Plaintiffs did not immediately serve the notice on Defendants or file it with the Court. (Dong Decl., ¶¶ 20-21.)
On July 9, following Defendants filing of this motion, Plaintiffs filed a notice of lis pendens with this Court and served the notice on Plaintiffs counsel.
The notice requirement is intended to assure that property owners receive prompt notice of the recording of a lis pendens. (
Biddle v. Superior Court
(1985) 170 Cal.App.3d 135, 137.) However, where a plaintiff substantially complies with the notice statute and promptly conveys actual notice to the affected party, the purpose of the statute is satisfied. (
Ibid
.) In
Biddle
, the plaintiff filed a notice of lis pendens and mailed a copy to the defendant simultaneously, sent it to the wrong location and did not request a return receipt as required. (
Id
. at pp. 136-137.) The court found that the plaintiff had substantially complied with the notice statute. (
Id
. at p. 137.)
Here, the delay was longer. Plaintiffs served the notice roughly three months after filing it. However, Defendants had actual notice, and the method of Plaintiffs eventual service was otherwise proper. The Court therefore finds that Plaintiffs substantially complied with the notice statute.
Substantive Defects
A lis pendens may be expunged either (1) if the pleadings do not contain a real property claim, or (2) if the court finds that the party claiming the lis pendens has not established by a preponderance of the evidence the probable validity of the real property claim. (Code Civ. Proc., §§ 405.31, 405.32.)
Defendants contend that Plaintiffs claims for breach of contract, breach of fiduciary duty, accounting, and dissolution of partnership are not real property claims. Plaintiffs do not contest this. Plaintiffs rather contend that their claims for resulting trust, constructive trust, specific performance, and quiet title are real property claims that satisfy the test of probable validity.
The Court first notes that Plaintiffs Complaint is exceedingly short, with the factual allegations comprising slightly over one page. The factual allegations themselves only contain general statements that the parties had worked together on real estate opportunities as partners in the past, and that Dong owed Plaintiffs fiduciary duties as a result; that Dong and Plaintiffs agreed to form a partnership to purchase the Property; that Plaintiffs were involved in the negotiation and diligence process; and that Dong then purchased the Property herself under Sylmars name. The Complaint alleges that this purchase breached the parties agreement, as well as Dongs alleged fiduciary duties to Plaintiffs. The Complaint does not expand on the terms of the parties agreement, what performance was obligated of each party, or whether it was oral or in writing. Further, the Complaint does not contain any allegations specific to each of the eight causes of action. Nor have Plaintiffs amended the Complaint in the three months since it was filed to fill out these allegations.
Plaintiffs attempt to expand on the allegations of the Complaint in their opposition brief, stating that the reason the Complaint is so threadbare is because Plaintiffs were in a rush to file the lis pendens and thereby prevent Defendants from selling the Property. (Opposition at p. 12:10-12.) While that may be so, Plaintiffs are certainly not still in a rush three months later.
Specific Performance
To state a cause of action for breach of contract, a plaintiff must be able to establish (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendants breach, and (4) the resulting damages to the plaintiff. (
Oasis West Realty, LLC v. Goldman
(2011) 51 Cal.4th 811, 821.)
If a breach of contract claim is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference. (
Harris v. Rudin, Richman & Appel
(1999) 74 Cal.App.4th 299, 307.) In some circumstances, a plaintiff may also plead the legal effect of the contract rather than its precise language. (
Construction Protective Services, Inc. v. TIG Specialty Ins. Co.
(2002) 29 Cal.4th 189, 198-199.)
To obtain specific performance after a breach of contract, a plaintiff must generally show: (1) the inadequacy of his legal remedy; (2) an underlying contract that is both reasonable and supported by adequate consideration; (3) the existence of a mutuality of remedies; (4) contractual terms which are sufficiently definite to enable the court to know what it is to enforce; and (5) a substantial similarity of the requested performance to that promised in the contract. (
Real Estate Analytics, LLC v. Vallas
(2008) 160 Cal.App.4th 463, 472 [citation and quotation marks omitted].)
Defendants argue that Plaintiffs cannot satisfy the statute of frauds with respect to the alleged contract.
A contract coming within the statute of frauds is invalid unless it is memorialized by a writing subscribed by the party to be charged or by the party's agent. (
Secrest v. Security National Mortgage Loan Trust 2002-2
(2008) 167 Cal.App.4th 544, 552, citing Civ. Code, § 1624.) An agreement for the sale of real property or an interest in real property comes within the statute of frauds. (
Ibid
, citing Civ. Code, § 1624, subd. (a)(3).)
Although the parties dispute whether the alleged agreement was for the purchase of land, the Court assumes for the sake of the statute of frauds analysis that it is because the alternative would render Plaintiffs contract claims inappropriate for a lis pendens in any event.
Here, Plaintiffs have not provided evidence of a writing memorializing the contract. Plaintiffs contend that a series of text messages sent between Dong and Yosef Ben Elisha memorialize the contract. Yosef Ben Elisha declares that the text messages state as follows:
Dong:
Hi Yossi, hope all is well. I made an appointment with Armin today to go to his office at 2pm. Thank you for introducing him and his firm. If you are still interested in the project. You are welcome to join me.
Plaintiff Yosef Ben Elisha:
Good morning Christina,
I can follow up with you around 12pm to try to show up. I do have meeting that I will need to schedule to make it happen. I will let you know around 12pm.
Dong:
Thanks so much Yossi. Sorry for the late notice. Just decided to meet with him for final DD before closing :)
Plaintiff Yosef Ben Elisha:
Yes
I will be there 2pm
(Decl. Yosef Ben Elish ¶ 29 [emphasis in original].)
There are two problems with Plaintiffs argument. First, these text messages hardly set forth the key terms of an agreement to purchase the Property. Second, [a]n electronic message of an ephemeral nature that is not designed to be retained or to create a permanent record, including, but not limited to,
a text message
or instant message format communication, is insufficient under this title to constitute a contract to convey real property, in the absence of a written confirmation& (Civ. Code, § 1624, subd. (d) [emphasis added].) The Court therefore concludes that the text messages that Plaintiff provides do not satisfy the statute of frauds.
[F]ull performance takes a contract out of the statute of frauds has been limited to the situation where performance consisted of conveying property, rendering personal services, or doing something other than payment of money. (
Secrest
,
supra
, 167 Cal.App.4th at p. 556.)
Plaintiffs argue that the contract does not fall under the statute of frauds because they substantially performed. (Opposition at p. 14:5-10.) Plaintiffs contend that this substantial performance consisted of completing due diligence, meeting and communicating with the prior agent of the Property, communicating with the Propertys prior owner, communicating with the contamination specialist, communicating with prospective investors, retaining an architect, putting together cost estimates, and putting together a timeline of development. The problem with Plaintiffs argument is that
full
performance, not
substantial
performance, is required. Plaintiffs do not provide any allegations in the Complaint or arguments in their brief indicating what performance was actually required of them. The Court is not prepared to jump to the conclusion that the list of actions Plaintiffs provide constituted the full performance of Plaintiffs obligations under the alleged contract.
The Court therefore finds that the statute of frauds is not satisfied. As a result, there Plaintiffs have not shown the probable validity of their claims for specific performance or breach of contract.
Resulting Trust
There are two problems with Plaintiffs resulting trust claim.
First, [a] resulting trust does not arise from any oral agreement between the parties, but only as a result of the advancement of at least part of the consideration by the one claiming to be the beneficiary. (
Laing v. Laubach
(1965) 233 Cal.App.2d 511, 517.) Plaintiffs have failed to allege or provide a written agreement.
Second, [a] resulting trust cannot be enforced in favor of a person who has paid part of the consideration for the transfer of property unless it is possible to clearly establish the amount of money contributed by him [or her] or the proportion of his [or her] contribution to the whole purchase price &. One who claims a resulting trust in land must establish clearly, convincingly and unambiguously, the precise amount or proportion of the consideration furnished by him [or her] &. If the claimant does not, then the presumption of ownership arising from the legal title is not overcome and a resulting trust will not be declared. (
Lloyds Bank California v. Wells Fargo Bank
(1986) 187 Cal.App.3d 1038, 10441045 [citations and quotation marks omitted].) Here, Plaintiffs do not allege that they paid any of the consideration for the Property, let alone part of it.
For both of these reasons, Plaintiffs have not shown the probable validity of their claim for resulting trust.
Constructive Trust
[A] constructive trust may only be imposed where the following three conditions are satisfied: (1) the existence of a res (property or some interest in property); (2) the right of a complaining party to that res; and (3) some wrongful acquisition or detention of the res by another party who is not entitled to it. (
Communist Party v. 522 Valencia, Inc.
(1995) 35 Cal.App.4th 980, 990.)
As discussed above, Plaintiffs have not provided evidence of a contract giving them a right to the Property. Plaintiffs have not pled or argued a different basis for such a right, either. As a result, Plaintiffs have not shown that they can satisfy the second element, and therefore have not shown the probable validity of this claim.
Quiet Title
Code of Civil Procedure, section 761.020 sets forth the requirements for an action for quiet title:
The complaint shall be verified and shall include all of the following:
(a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any.
(b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession.
(c) The adverse claims to the title of the plaintiff against which a determination is sought.
(d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought.
(e) A prayer for the determination of the title of the plaintiff against the adverse claims.
(Code Civ. Proc., § 761.020.)
There are several problems. First, the Complaint is not verified. Second, at its most generous reading, the Complaint alleges that the parties formed a contract to purchase the Property together but as discussed above, Plaintiffs have not satisfied the statute of frauds with respect to this contract, and therefore cannot show the basis for their title to the Property. For both of these reasons, the Court finds that Plaintiffs have not established the probable validity of their quiet title claim.
Conclusion
Plaintiffs have failed to show the probable validity of any of their claims sounding in real property. The Court therefore grants Defendants motion and orders the expungement of Plaintiffs lis pendens on the Property.
Preview
INDEX NO. 452564/2022 NYSCEF BOC. NO. 1621 RECEIVED NYSCEF: 10/30/2023 In The Matter Of: PEOPLE OF THE STATE OF NEW YORK v. DONALD J. TRUMP, et al. SHERI DILLON October 27, 2023 NICOLE C. ROBINSON So Ord ared ofS 6 1023 HON. ARTHUR F. ENGORON OCT 30 2023 Original File 102723TRUMP.txt Min-U-Script® with Word Index 1 of 13 = INDEX NO. 452564/2022 NYSCEF DOC. NO. 1621 RECEIVED NYSCEF: 10/30/2023 PEOPLE OF THE STATE OF NEW YORK vy. SHERI DILLON DONALD J. TRUMP, et al. October 27, 2023 Page 2640 | PROCEEDINGS Page 2642 » SOUR ORM CORRE EMAL BRO BARTS 1 THE COURT OFFICER: All rise. Part 37 is now in = ETE A gi ONE 8 2 session. Honorable Judge Arthur Engoron presiding. Make 3 sure all cellphones are on silent. Laptops and cellphones will be permitted, but only to members of the press. Plaintiff, There's absolutely no recording or photography of any kind allowed in the courtroom. Now, be seated and come to order. Donati tRuMp: vowed RUMP, JR.; ERIC RaNex TRUM PEN WEISSELBERG, JEFFREYM TRUMP; THE COURT: Okay. So why are we here at 9:30 instead of 10:00? Because we're going to hear oral argument SRG ANZA ONAN. TH ENS VOC, PROM UST TRUI RGANIZAT! IN, LL INGS. MANAG! | MEMBER: on a motion by Ivanka Trump to quash a subpoena, trial Rp |20 fenTARE SORT iat Le cor subpoena issued against her. 10 Re geCe Ee 40 WALL STREE 11 Tread the papers, so, please, don't be too 11 12 repetitive. I'm hoping that we can finish by 10:00. If we 12 an = X 'p 13 can't, then by 10:30. We want to try to finish with the 13 14 current witness, Sheri Dillon, today. And without further ew Vor Se. | York 14 October 15 ado, who would like to speak on behalf of the motion? 15 16 BONGRABLE AR THU F, ENG RON, 16 MR. MOSKOWITZ: Good morning, Your Honor. Bennet Justice, jupreme 17 Moskowitz on behalf of non-party witness Ivanka Trump 18 19 pele F “Kk Fa HOOP (A JAMES 18 First, let me say thank you everyone here, especially Your Honor, Ms. Greenfield and the parties for giving us the time 19 20 ne 20 for this in the middle of a very busy trial 21 Ag lew York 1 21 I heard you loud and clear. I have no intention to 22 iets 22 just rehash what's in my moving papers. As Your Honor 23 24 e 23 24 knows, I wasn't afforded a reply opportunity, so I'll take this opportunity to address things mostly that the AG 25 INKELSTEIN. 25 raised. What I will say just to level set here and I don't Page 2641 PROCEEDINGS Page 2643 want to get lost in the shuffle with all the papers flying Ae or. Defen back and forth on thi We're not here about technical roe, Sti to puite 750 service defects. Thi: is about fundamental issues of we Keres JESUS M. gerne BS jurisdiction. THE COURT: Good. That makes things a lot simpler. ROBERT SprisetendaT; mu MR. MOSKOWITZ: Right, and hearing only facts that mes matter for purposes of the jurisdiction. Ms. Trump does not We Fes VALE B50. live in New York. She's not domiciled here and despite the fact that the AG concludes otherwise and doesn't present HABBA sfobe M: lO dasASSOCIATES, LLP 10 ee 10 evidence supporting that conclusion, she does not transact ae ay - Sie 240 business here. Let me say it again, she does not transact ug ae en Tse! $677! A, 11 12 business here. That has a very specific meaning under New Ky lewDetendats MORIAN 13 York law. 13 Beit ite 4600 iN RoelNrESO. l he 14 Weinstein, Korn & Miller, no offense to Professor 14 N 1s Siegal. He's great, too. I picked it up and Section 30809 as? 16 of Weinstein, Korn & Miller, so that section of Weinstein, E,eR UMP. seggonsiaro 16 oH ee N Arh 10022 17 Korn & Miller provides, Your Honor, that actual place of 17 business under New York law means where that person is is Po TR rat ee PEAS TON SANDERS, LLP 19 regularly, physically present and regularly transacts 19 Ah BEYER 20 business. 875SKAIr Aven Ne 10022 20 Beet WITZ, ESQ. 21 22 Ivanka Trump does not regularly transact business and does not regularly at any of the addresses where they 22 23 served these subpoenas to these entities at most since 2017 23 enior f ‘ourt Reporters 24 25 TAREE SLORBON AME ERR 24 and if they want an affidavit for that business, that's fine. By the way, side note, they didn't put in an Min-U-Seript® NICOLE C. ROBINSON, SCR, & JANELLE LONDON, RMR, CRR (1) Pages 2640 - 2643 2 of 13 INDEX NO. 452564/2022 NYSCEF DOC. NO. 1621 RECEIVED NYSCEF: 10/30/2023 PEOPLE OF THE STATE OF NEW YORK v. SHERI DILLON DONALD J. TRUMP, et al. October 27, 2023 PROCEEDINGS Page 2644 | PROCEEDINGS Page 2646 affidavit because I urge the Court, and you read the papers, months leading up to this. So if that's the best case they if you revisit it, maybe you don't need to, the can do, I'm happy with it. It doesn't help them. It helps correspondence attached to my affirmation, the AG's position me. on this motion has been like a moving target. There are other cases. The Court doesn't have to First they said, "Oh, it is a subpoena to these take my word for it. A lot of cases have cited that Gibson entities." No, it is a subpoena to her. Now I'm hearing in Dunn case and what they rely upon such as this Napoli vs. their papers for the first time that she transacts business Bern which is 2021 Westlaw 5458747 at page three, 2021 case at Trump Tower. She does not. Since 2017, she's been there with the line of cases that I found talking about the Gibson once or twice a year, never for business, to say hello, Dunn case. They'll hook on to that inducement. This guy 10 people including family members for 15 minutes, 30 minutes, 10 had the legal fees sent there, represented that's where he 11 things like that. So there is no basis to say a service on 11 worked, and then he turned around and said ha-ha, fee over 12 an entity at Trump Tower is service on her individually. 12 legal dispute, can't get me there. 13 That's just wrong. 13 Now, there is another new argument and, you know, 4 Let's look at the case law here and I'll address 14 Your Honor, | always tell younger associates there comes a 15 mostly the case law that was cited by my friends across on 15 time in trial where parties go a bridge too far and try not 16 the other side. First, they don't deal with the fact that 16 to do it. Here is the AG's bridge way too far. How they 17 Justice Fried’s decision just as an example, Amelius is 17 assert for the first time and they are getting a little 18 decisive. A non-party, non-domiciliary is not subject to 18 desperate here, respectfully, that Ms. Trump consented to 19 the subpoena power of the court, That's 64 New York State 19 this jurisdiction in this case because she's a party in the 20 3d 855 at 866. Again, that was Justice Fried. 20 special proceedings. 21 When we had the ongoing discussions leading up to 21 They must take us all for fools. I'm looking 22 this motion and still today, perhaps the AG relied on cases 22 around. This is not the special proceedings. They didn't 23 like 2323 Communications Corp. Those cases stand for a 23 issue the subpoenas in the special proceedings. There was 24 principle that's very different which is that where an 24 no trial in the special proceedings, so that's just false on 25 entity is a party, it can be compelled to appear through a 25 its face. And in any event, we could cite case law that PROCEEDINGS Page 2645 PROCEEDINGS Page 2647 specific person. The entities they subpoenaed are not stands for the proposition, including First Department case parties, so those cases are not applicable. law and this is pretty basic, that even consent in one They also talk about this Gibson Dunn case. Let's action does not mean that there's jurisdiction over a person take a close look at that case, Your Honor. It is a First who consents even in a related action. Here is not what we Department case, doesn't help them. Maybe they didn't find are dealing with. They're saying we had this years-long anything better. In that case, you could tell that -- it's social proceeding. She was subject to jurisdiction in that a Gibson Dunn case, is a dispute over legal fees and the proceeding. Therefore, in this trial, under separate index person trying to evade service, Your Honor, had the legal number, which we issued subpoenas, she must come today. Not fees sent to a specific Madison Avenue address. In the few how it works and there's a reason we didn't hear that 10 months leading up to -- 10 argument previously. It doesn't fly. 11 THE COURT: Wait. Wait, you don't mean that the 11 So let's talk about the entities. Again, I urge 12 legal fee was sent. How the bills were sent. 12 Your Honor to revisit the fact that the AG kind of spoke 13 MR. MOSKOWITZ: The bill, excuse me, for the legal 13 from both sides of the mouth about what these subpoenas 4 fees. Invoice me here kind of thing. Then there is a suit 14 were. Itis pretty simple. We all know what happened here. 15 over legal fees. The person trying to say service didn't 15 They had easy jurisdiction over Ivanka Trump. They could 16 apply, jurisdiction didn't apply had been to that address 16 have served her at her house. Much different. We probably 17 for work multiple times leading up to the legal proceedings 17 wouldn't be here today. What appears to happen is they task 18 and leading up to the service. And what the court found 18 ‘one someone in their office for saying let's go to the 19 there was this guy induced Gibson Dunn to rely on this place 19 transcript let's look at documents let's find some entities 20 where he does go to work sometimes. He can't now turn to 20 that have something to do with her and let's fire off 21 the court and say that "I'm actually not really there that 21 subpoenas. That's what they did. 22 much." That's not this case. 22 THE COURT: Wait. Wai Entities that had 23 Ivanka Trump didn't induce anyone to go to Trump 23 something to do with her? Didn't she own some of them and 24 Tower. She hasn't been there working since 2017 and she did 24 didn't some of them own parts of others? 25 not go to work there since then, certainly not in the three 25 MR. MOSKOWITZ: I'll get to that. It is not clear. Min- U-Seript NICOLE C. ROBINSON, SCR, & JANELLE LONDON, RMR, CRR (2) Pages 2644 - 2647 3 of 13 INDEX NO. 452564/2022 NYSCEF DOC. NO. 1621 RECEIVED NYSCEF: 10/30/2023 PEOPLE OF THE STATE OF NEW YORK v. SHERI DILLON DONALD J. TRUMP, et al. October 27, 2023 PROCEEDINGS Page 2648 | PROCEEDINGS. Page 2650 The TTT and OPO entity, she absolutely has an affiliation person. with those entities as do other people who can competently MR. MOSKOWITZ: That's exactly right. At the end testify for those entities, but let me stop there. Again, of the day, Your Honor, they just don't have jurisdiction as non-parties, you don't get to subpoena those entities and over her. They tried with this transient business again say you must appear via specific person X rather, I'll get articulated to me for the first time in their papers that to it in a minute, it's black letter law an entity can they submitted to Your Honor and I just addressed it. It's provide anyone who's competent to testify which goes back to just wrong and if they want an affidavit saying what I just my point. represented to the Court as an officer and I'll say it again Iasked them why TTT? Why this OPO entity? Why that she does not transact business at any of those places 10 502 Park? I never got an answer because what they were very 10 they served, I will be happy to do it. il honest about, and I appreciate, is that they want her to 11 THE COURT: Did she ever transact business? 12 appear and there's no limitation in their mind of what they 12 MR. MOSKOWITZ: Yes. 13 could ask her about because it is really not about these 13 THE COURT: When was the last time she transacted 14 entities. That's just the way that they're trying to get 14 business? 15 jurisdiction over her. 502 Park, I said to them, “Guys, I'm 15 MR. MOSKOWITZ: Before 2017. 16 having trouble here. I can't find anything on my end that 16 THE COURT: Okay. So what? 17 shows what she has to do with this entity. What did you 17 MR. MOSKOWITZ: You have to have jurisdiction over 18 have before you served the subpoena." | didn't get an 18 her now. If someone worked in New York 50 years ago and 19 answer. You don't get to - subpoena powers are awesome ~ 19 leaves, you don't get to say, "Hey, you once worked at this 20 THE COURT: You might get an answer today if there 20 address. Come to trial." That's not how it works. It has 21 is an answer. 21 to be jurisdiction now, transact business here now. 22 MR. MOSKOWITZ: Yeah, I would like to know the 22 THE COURT: How are we going to define now? What 23 answer because | haven't found it. I said, "Please, share 23 if somebody transacts business here, leaves on a vacation or 24 it because if there is something "-- I'll note I spent a 24 a business trip or is away? 25 lot of time. I don't even know that that entity was used 25 MR. MOSKOWITZ: Again -- PROCEEDINGS Page 2649 PROCEEDINGS Page 2651 for anything. It exists, I grant you that. I could THE COURT: A week later, they're not still -- speculate at what it might have been. I have no document MR. MOSKOWITZ: No. The Weinstein, Korn & Miller that says that like the other two that she was an officer or basic principle addresses that, Your Honor. If it is a anything like that. She doesn't know what it is and the AG place you regularly return to work such as like I work on doesn't know what Third Avenue where my law firm offices are. If I leave for So they weren't served on Ivanka Trump. They were a week and they serve me there, I can't turn around and say, served at best on these entities. And, by the way, not all "Oh, I was gone that week." Here, you have someone who cleanly, but again, I'm not here about service stands or didn't work at the place for many, many years. They no what. If they insist they need those entities, those longer return there for work. 10 entities can appear. | think they should articulate with 10 THE COURT: Let me ask you a question. Did Ivanka ili why they need those entities, but I understand the 11 submit any sworn statement? 12 defendants will speak for themselves. They offered -- for 12 MR. MOSKOWITZ: On this motion, no, because again, 13 the two that we concern that they offer, they offered for 13 I didn't hear this argument and didn't get a reply for it. 14 someone who has lived here appear and testify for those 14 I'm happy to submit one now. I would have done it ina 15 entities, which you are allowed to do. 15 reply brief. 16 New York law again, I pulled out Weinstein, Korn & 16 THE COURT: Now is too late. I'm hoping to decide 17 Miller. You can look at Section 230504, "If a subpoena to 17 this today and if she testifies, it will be fairly soon. 18 testify is served on and is addressed to an entity, that 18 MR. MOSKOWITZ: I wasn't put on notice that that 19 entity may choose the person who will be deposed," period. 19 was their argument because they kept changi it. How could 20 So they cite -- 20 I respond to something they didn't articulate? I can't 21 THE COURT: I'm very familiar with that concept 21 guess what their position is. 22 that the entity has the right in the first instance to 22 THE COURT: Well, it's standard practice in New 23 decide who to produce. I think we are in a different 23 York Jaw that you need to have an affidavit from someone 24 situation than the normal one here. As we all recognize, we 24 with personal knowledge if you're going to start spouting 25 are not looking for the entities. They're looking for the 25 facts, but -- Min-U-Seript® NICOLE C. ROBINSON, SCR, & JANELLE LONDON, RMR, CRR (3) Pages 2648 - 2651 4 of 13 INDEX NO. 452564/2022 NYSCEF DOC. NO. 1621 RECEIVED NYSCEF: 10/30/2023 PEOPLE OF THE STATE OF NEW YORK v. SHERI DILLON DONALD J. TRUMP, et al. October 27, 2023 PROCEEDINGS Page 2652 | PROCEEDINGS Page 2654 MR, MOSKOWITZ: I agree, and they don't have one sorry. She is and that changes things fundamentally. either showing the opposite, but I'm happy to put one in You're no longer in the case. You're not a resident. You tod: don't work here. You don't have jurisdiction over that THE COURT: I'm not sure that they can prove a person. That's the breaks. negative. Ivanka would be the person best able to say when THE COURT: The expression is "that is the breaks." she ever -- when was the last time she worked in New York MR. MOSKOWITZ: I'm referring in the singular or whether she still works in New York, what she owns here, situation, but I appreciate Your Honor’s. et cetera, et cetera, but -- THE COURT: All right. Anything else on your MR. MOSKOWITZ: I could get it to the Court ASAP. initial -- I don't know whether we will have time for a 10 THE COURT: I promise you I'm not a "Ha-ha, I got 10 reply, but was that it for now? 1i you" judge. I'm not trying to say, "Ha-ha, you didn't have 11 MR. MOSKOWITZ: Yes, Your Honor. J mean, I 12 an affidavit from her," but it does weaken your argument 12 appreciate the possibility if 1 hear something new, to 13 because you keep talking about what she does and doesn't do. 13 address it. 14 She would know better than you. 4 THE COURT: Probably. Probably. 15 MR. MOSKOWITZ: I agree, and if { had been afforded 15 MR. MOSKOWITZ: Yeah. 16 an opportunity to reply, I would have submitted it. I did 16 THE COURT: Okay. It is my understanding that the 17 not want to disregard what the Court advised me which was no 17 defendants themselves do not have standing to contest this, 18 reply afforded, which was the e-mail I received. 18 but I'll let them talk if they want to. 19 THE COURT: Whether you should have needed a reply, 19 MR. KISE: Thank you, Your Honor. I don't know 20 waited for a reply, a reply is to respond to their 20 that I would say we don't have standing since it affects the 21 arguments, but if you don't make out a prima facie case by 21 impact of the trial and it affects the course of the trial, 22 an affidavit from Ivanka saying "I don't do these things. I 22 but in all events, | appreciate the opportunity to address. 23 don't live there,” et cetera, I don't think that should have 23 THE COURT: We always like to hear your mellifluous 24 been in the reply. That should have been in moving papers, 24 voice. 25 but that’s just my opinion. All right, continue. 25 MR. KISE: That's good. At least there's something PROCEEDINGS, Page 2653 PROCEEDINGS Page 2655 MR. MOSKOWITZ: Thank you, Your Honor. So going positive that may happen here. I will try not to go over as back to the idea that corporations can designate their own you suggested, Your Honor. I'm not going to belabor the witnesses, they cite the Standard Fruit case, totally papers. I know you've read them and you've seen in our different. In that case -- by the way, it was from papers that we view the subpoena truly as just continued 1977 -- the court did allow a party to subpoena an harassment of President Trump's children. They were all out-of-state witness. It was after the witness provided by named and included in this case as leverage. There's no the subpoenaed corporation was unable to testify to the serious evidence that any of them had any involvement in the relevant facts. And even then, the court allowed the Statement of Financial Condition preparation. corporate entity to select between two different Ms. Trump was dismissed from the lawsuit by the 10 individuals. 10 First Department and now despite having a year to depose Ms. 11 THE COURT: When I said, I read all the papers, I 11 Trump in this case, several months post-dismissal to depose 12 didn't read all the cases, but that case, I did read. 12 her, now all of a sudden in the trial, the Attorney General 13 MR. MOSKOWITZ: Right. Right. So again, that's 13 claims that her testimony is somehow essential. I thought 14 our point. The corporation gets to put someone up and it 14 Mr. Wallace was going to object when he stood up. I'm just 15 has to be someone who can speak to the facts, again, which 15 so used to it. No. No. 16 is why my first question to them when we got notice that 16 THE COURT: Obviously, testimony does not have to 17 they were trying to serve these subpoenas, "Hey, what 17 be “essential.” 18 testimony are you going for" and we quoted this and it is in 18 MR. KISE: Even if it were relevant then, then they 19 the exhibits to my affirmation, They were honest about it. 19 should have done it during discovery. They'te claiming now 20 I appreciate that. It was basically limited. It was, "She 20 that only she can provide this information and if it was so 21 knows this, she knows that, but I can't really limit it," so 21 essential, then why are we here in the middle of trial? 22 they want her here. They want it to be unlimited. They 22 There was no even attempt to do a de benne esse deposition 23 didn't depose her. They could have. They didn't de benne 23 which was done with other witnesses who may or may not be 24 esse, you know, subpoena her. They could have done that. I 24 available for trial. 25 guess they didn't think she'd be out of the case. I'm 25 The exhibits attached to their motion demonstrate Min-U-Seript® NICOLE C. ROBINSON, SCR, & JANELLE LONDON, RMR, CRR (4) Pages 2652 - 2655 5 of 13 INDEX NO. 452564/2022 NYSCEF DOC. NO. 1621 RECEIVED NYSCEF: 10/30/2023 PEOPLE OF THE STATE OF NEW YORK v. SHERI DILLON DONALD J. TRUMP, et al. October 27, 2023 PROCEEDINGS Page 2656 | PROCEEDINGS Page 2658 that this is an inexcusable delay. All of the documents 1 information about that entity, about Standard F1 about that I saw that were attached as exhibits were all things 2 that specific entity. They produced, as was their right, they had in their possession for at least a year, if not 3 the first witness, the corporate designee to testify about more. The Attorney General certified in their NOI, their 4 relevant facts. Only after that witness testified and there note of issue, that all discovery was complete and the 5 was a demonstration that that witness could not -- could service of that prohibits reopening. I'll cite the Court to 6 not testify did the court order another witness. the Melcher case, 38 AD3d 376. It is a First Department 7 The Amelius case, which we also cite 64 NY Supp. 3d case that stands for that proposition that their 8 855, draws the distinction further bearing out, Standard certification meant that they've completed their 9 Fruit draws the distinction between a non-party corporation 10 investigative efforts for trial, their discovery efforts for 10 and a corporation under investigation. Here, you have three 11 trial and yet, this is tantamount to a discovery subpoena. 11 non-parties, none of which are under investigation, none of 12 Nothing was done. 12 which have any association heretofore with this case. 13 To us, again, our answer is obvious they want to 13 So, the subpoenas were not served. They were 14 put Ms. Trump on the stand, create another media event while 14 served all on Ms. Trump. They were served on the non-party 15 I'm always certainly happy to have the Attorney General in 15 entities. Those non-party entities are entitled to 16 the courtroom. her presence today demonstrates that that's 16 designate a corporate representative and the Attorney 17 what this is about. 1 doubt she came here to hear Ms. 17 General has the burden in the first instance to demonstrate 18 Dillon. I doubt she came here to hear Mr. Flores. 18 that that designation was inadequate. The Barone case, 260 19 Although, I'm sure the testimony will be riveting. Really 19 AD2d 417 and the other cases we cite stands for that 20 the purpose here is to focus on another one of Mr. Trump's 20 proposition that there must be some demonstration that the 21 children who has been dismissed from the lawsuit. 21 initial witness that is designated by the entity is 22 To the jurisdictional point that Mr. Moskowitz 22 inadequate. 23 raised, there's just no legal authority for the Court to 23 There's no showing that the individual that's been 24 require a non-party, non-domiciliary to appear at trial as a 24 designated here by the corporate entities, Eric Trump is 25 representative of a non-party entity. It's non, non, non. 25 inadequate. In fact, the Attorney General herself alleged PROCEEDINGS Page 2657 PROCEEDINGS Page 2659 | And the Court itself could not compel her attendance under in the complaint that Eric Trump is responsible for all these circumstances. aspects of management. I mean, that's their allegation. So The service issue, I'll just touch on briefly. The I don't see how they can claim without any explanation service on -- and the cases -- I'm not citing all the that -- or any proof that Eric Trump is now somehow an. papers. They're in their papers, Your Honor. The service inadequate corporate designee, and they're not entitled to on a non-party entity registered agent is not service. It raise that issue unless and until they make that -- make is not service on Ms. Trump in her individual capacity and a that showing and that has been established by the court. non-party, non-domiciliary not subject to the court's Finally, and just briefly, the subpoena itself subpoena power does not constitute service on Ms. Trump. revealing what this is all about is truly overly broad. 10 And I'll cite, as in our papers, the Genger case, 10 There is no attempt to narrow the issues. They just want 11 50 Misc.2d 361. The Attorney General argues that Ms. Trump 11 another free-for-all on one of President Trump's children. 12 did not contest jurisdiction in the special proceeding, but 12 There's no real relevanceto the proceeding. It's more in 13 that's frankly a complete non sequitur. The Coutts case 13 the nature of a subpoena for a deposition where we're going 14 they cite is completely in opposite. That's a judgment 14 to spend seven hours. "What do you know about this?” "What 15 debtor who fled the jurisdiction after judgment that then 15 do you know about that"? 16 filed a parallel action against the creditor ina New York 16 THE COURT: She was deposed already in a different 17 court. 17 case related, if you pardon the expression, so it is not 18 There was no dispute that the court could obtain 18 like they're not -- it is not like a total shot in the 19 the jurisdiction over the debtor in the very case at issue, 19 dark. 20 but here, you have Ms. Trump is not a party. She was 20 MR. KISE: It may not be a total shot in the dark, 21 dismissed by the First Department. She's not a judgment 21 but the subpoena is pretty close. The lights are on dimly 22 debtor and she's not actively litigating any affirmative 22 and they're shooting off to the right when there's someone 23 case in New York. 23 over on the left that's their target. So yeah, maybe it is 24 The Standard Fruit case that they cite is also in 24 in the same room, but the lights are dim and they're going 25 opposite. There, an investigative subpoena sought 25 in the wrong direction. So there's -- if they had a Min-U-Seript® NICOLE C. ROBINSON, SCR, & JANELLE LONDON, RMR, CRR (5) Pages 2656 - 2659 6 of 13 INDEX NO. 452564/2022 NYSCEF DOC. NO. 1621 RECEIVED NYSCEF: 10/30/2023 PEOPLE OF THE STATE OF NEW YORK v. SHERI DILLON DONALD J. TRUMP, et al. October 27, 2023 PROCEEDINGS Page 2660 Page 2662 specific focus, then they would have put that in the this case. She was dismissed in the case the end of June. subpoena. If they had a specific purpose, they would have There was still time to do the de benne esse deposition and put that in the subpoena. they did not and instead of coming before this Court And frankly, had they had such specific focus and forthright and saying, "Listen, we want Ivanka Trump and specific purpose, we wouldn't be here because they would these are the reasons why," they come up with this Ruth have either deposed Ms. Trump during the long course of Goldberg, coming up with these three companies that have discovery in this case. They had ample opportunity to nothing to do with it. We want them. depose anyone they wanted, She was certainly available for Mr. Moskowitz in consultation with my client says, that while she was a party. And then after she wasn't a you know what, for the two companies that have something to 10 party as of June of this year, they still had several months 10 do with Trump, Eric Trump is willing to be the corporate 11 to conduct a de benne esse deposition. 11 representative because he's going to be testifying anyway 12 They haven't even deposed -- made any showing to 12 and they said, "Well, no, no, not so fast." They were 13 the Court as to why that wouldn't suffice or wouldn't have 13 smoked out as Your Honor pointed out. They want Ivanka 14 sufficed. Even after the commencement of trial, they 14 Trump. If they want Ivanka Trump, there is a mechanism to 15 haven't even proposed that. And I'm not going to agree to 15 do it. If they do it in the appropriate way and even if 16 that on behalf of Mr. Moskowitz’ client. I'm just showing 16 there is still an objection by Mr. Moskowitz, that becomes a 17 that it just shows the real purpose here is to drag her into 17 motion that's before Your Honor. But right now, all there 18 court. It is bad faith and it is harassment of another one 18 are are three subpoenas, three subpoenas in our view in