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Filing # 180333826 E-Filed 08/23/2023 12:50:12 PM
IN THE CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
ZASKIA MERCADO, CASE NO: 2019-CA-001939 ON
Plaintiff,
vs.
CHEDDAR'S CASUAL CAFE, INC.,
Defendant.
/
MOTION TO COMPEL DEPOSITION OF
DEFENDANT’S CORPORATE REPRESENTATIVE
Plaintiff, ZASKIA MERCADO, by and through her undersigned counsel, files her Motion to
Compel the Deposition of Defendant’s Corporate Representative and as grounds thereof states as
Pursuant to Florida Rule of Civil Procedure 1.310, Plaintiffis seeking to take the deposition of the
corporate representative for Cheddar’s casual Café, Inc., and in support thereof states as follows:
1 This is a claim for personal injuries against the Defendant, Cheddar’s Casual Café,
Inc., as the result of a slip and fall on June 2, 2017 wherein the Plaintiff, ZASKIA MERCADO,
was injured.
2 Plaintiffs counsel has made a good faith attempt to set the deposition of Defendant
Cheddar Casual Café, Inc.’s corporate representative and provided the areas of inquiry. (Exhibit
“A”)
3 Counsel for Defendant has objected to Plaintiff's Proposed Notice of Taking
Deposition of Defendant’s Corporate Representative and filed a Motion for Protective Order.
(Exhibit B)
4 Defendant Cheddar Casual Café Inc., cites the Court Order dated August 18, 2021
( Exhibit C) as the basis for their objections.
5 On August 18, 2021, the Court ordered that the Corporate Representative
Deposition in this case as well as the Corporate Representative Deposition for this case styled
Piedrahita, Zulayv. Cheddar's Casual Café, Inc., (Case No. 19-CA-01012-ON venued in Osceola
County) were to be consolidated and to take place on the same date.
6 Pursuant to the August 18, 2021 Court’s Order, it was agreed that the consolidated
deposition of the corporate representative for both cases was scheduled to take place on October
19, 2022.
7 The deposition of Joseph Brooks, the Corporate Representative of Defendant
Cheddar Casual Café, Inc. did indeed take place on October 19, 2022, however, was suspended by
Plaintiff's counsel due to the fact that defendant’s counsel failed to allow the corporate
representative to answer any questions on topics delineated in Exhibit A of the Deposition Notice
dated October 18, 2022. (Exhibit D)
8 Counsel for Defendant Cheddars Casual Café, Inc., Melissa Woodward, Esq.,
objected to the line of questioning at the deposition of corporate representative Joseph Brooks
because, she argued, the Order date June 13, 2022 sustained her objections as to Duces Tecum no.
20, 22, 26, 27 and 28, item listed on Exhibit B of the Deposition Notice date October 18, 2022
(Exhibit E). Ms. Woodward repeatedly directed the witness not to answer any of my questions
regarding prior incidents as delineated in Exhibit A.
9 However, the Orders dated August 18, 2021 and June 13, 2022 make no reference
to Exhibit A of the Deposition Notice dated October 18, 2022 and as such, Ms. Woodward
erroneously directed the corporate representative not to answer.
10. Plaintiff respectfully requests that this Honorable Court issue an Order Compelling
the Deposition of the Defendant’s Corporate representative.
WHEREFORE, Plaintiff, ZASKIA MERCADO, respectfully moves this Honorable
Court for an Order compelling Defendant to coordinate the requested deposition within ten (10)
days of the Order granting Plaintiff's Motion to Compel and any other remedies the Court find
necessary.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 23, 2023, I electronically filed the foregoing with
the Clerk of the Courts by using the Florida Courts eFiling Portal which will send a notice of
electronic filing to the following: Kurt M. Spengler, Esq. and Melissa T. Woodward, Esq., Wicker
Smith O'Hara McCoy & Ford, P.A., 390 N. Orange Ave., Suite 1000, Orlando, FL 32801, via
email at ORLcrtpleadings@wickersmith.com.
/s/ Manuel Stefan, Esq.
Manuel “Manny” Stefan, Esq.
Florida Bar No.: 0103389
MORGAN & MORGAN, P.
4495 South Semoran Blvd.
Orlando, FL 32822
Telephone No.: (407) 452-6982
Facsimile No.: (407) 572-0124
Primary email: MStefan@forthepeople.com
Secondary email: cvictor@forthepeople.com
Attorney for Plaintiff
Christine Victor x7233
From Christine Victor x7233
Sent: Wednesday, August 16, 2023 9:37 AM
To: Ahiramar Moreno x5907; PNorris@wickersmith.com; 'MWoodward@wickersmith.com’
'
Cc: Manuel Stefan x7208; Karina Ortiz Muniz x30447
Subject: RE: 2nd request Mercado, Zaskia v. Cheddar's Casual Café, Inc. (92358-5)
Attachments: P's Notice of Taking Deposition for corporate representative_ (002).docx
Attached please find the areas of inquiry
Christine Victor
Litigation Paralegal
P: (407) 572-0137
F: (407) 572-0112
A: 198 Broadway, Kissimmee, FL 34741
MORGAN & MORGAN
FOR THE PEOPLE.COM
PRACTICE AREAS | LOCATIONS | ATTORNEYS | VERDICT MAGAZINE
A referral is the best compliment. If you know anyone that needs our help, please have them call our office 24/7.
From: Ahiramar Moreno x5907
Sent: Wednesday, August 16, 2023 9:26 AM
To: PNorris@wickersmith.com; 'MWoodward@wickersmith.com'
Ce: Christine Victor x7233 ; Manuel Stefan x7208 ; Karina
Ortiz Muniz x30447
Subject: 2nd request Mercado, Zaskia v. Cheddar's Casual Café, Inc. (92358-5)
Good Morning,
We would like to set the corporate representative deposition Please send open dates. Thanks
Ahiramar Moreno
Legal Assistant
P: (407) 533-6974
F: (407) 452-1631
A: 4495 S Semoran Blvd, Orlando, FL 32822
MORGAN & MORGAN
FOR THE PEOPLE.COM
PRACTICE AREAS | LOCATIONS | ATTORNEYS | VERDICT MAGAZINE
A referral is the best compliment. If you know anyone that needs our help, please have them call our office 24,
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO: 2019-CA-001939-AN
ZASKIA MERCADO,
Plaintiff,
vs.
CHEDDAR'S CASUAL CAFE, INC.,
Defendant.
/
PLAINTIFF’S NOTICE OF DEPOSITION DUCES TECUM
PLEASE TAKE NOTICE that Plaintiff, ZASKIA MERCADO by and through the
undersigned attorneys will take the following Deposition:
LAN 7 OAD 8 1D) ODT
Ohi a iRoter.Wu tens
T/B/D T/B/D
VIA ZOOM
(Information to be provided)
Milestone Reporting
(407) 423-9900
Topic: Zaskia Mercado v. Cheddar's Casual Cafe, Inc.
* *Please advise, no less than seventy-two (72) hours prior to the above scheduled
deposition, if an interpreter is required.
upon oral examination before Milestone Reporting, Court Reporters, or a Notary Public
in and for the State of Florida at Large, or some other officer duly authorized by law to take
depositions and videotaped by Milestone Reporting for the purposes of discovery, for use at trial,
or both of the foregoing, or for such other purposes as permitted under the applicable and
governing rules.
Deponent is to bring:
1. Driver’s license.
2. A true and correct copy of any and all written inspection, maintenance procedures or
policies in place on the date of the subject accident, at Defendant's premises.
3. A true and correct copy of any and all safety manuals or videos, inspection manuals
or videos or training manuals or videos that any employee who was working on the date of
the subject accident, with responsibilities for inspecting the premises for dangerous
Filing # 180154586 E-Filed 08/21/2023 04:29:25 PM
vevuo-y
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND FOR
OSCEOLA COUNTY, FLORIDA
ZASKIA MERCADO, CIRCUIT CIVIL DIVISION
Plaintiff, CASE NO. 2019-CA-001939-ON
vs.
CHEDDAR'S CASUAL CAFE, INC.,
Defendant.
/
DEFENDANT’S OBJECTIONS TO PLAINTIFF’S PROPOSED AUGUST 16, 2023 NOTICE OF
TAKING DEPOSITION OF DEFENDANT’S CORPORATE REPRESENTATIVE
AND MOTION FOR PROTECTIVE ORDER
Defendant, CHEDDAR'S CASUAL CAFE, INC, by and through the undersigned attorneys,
and pursuant to Florida Rules of Civil Procedure 1.280, 1.330, and 1.350, hereby files its
Objections to and Motion for Protective Order in Response to Plaintiff's Notice of Taking Proposed
August 16, 2023 Deposition Topic and Duces Tecum of Defendant's Corporate Representative,
and states as follows:
1 This is a premises liability lawsuit arising from an incident that occurred on June 2,
2017, at the Cheddar’s Casual Café located at 875 W. Osceola Parkway, Kissimmee, FL 34741,
attached hereto as Exhibit A is Plaintiff's Complaint.
2 On August 18, 2021, the Court ordered that the Corporate Representative
Deposition in this case as well as the Corporate Representative Deposition for this case styled
Piedrahita, Zulayv. Cheddar's Casual Café, Inc., (Case No. 19-CA-01012-ON venued in Osceola
County) were to be consolidated and to take place on the same date. Attached hereto as Exhibit
B is a true and accurate copy of the August 18, 2021 Order.
3 Pursuant to the August 18, 2021 Court’s Order, it was agreed that the consolidated
deposition of the corporate representative for both cases was scheduled to take place on October
19, 2022; however, forty minutes into the deposition, Plaintiff's counsel unilaterally suspended the
deposition and refrained from going forward with any of the questions as it related to either the
CASE NO. 2019-CA-001939-ON
myriad of deposition topics set forth in either the Notice of Taking Deposition for the Corporate
Representative in the Mercado and/or Piedrahita case. Attached hereto as Exhibit C is the
October 19, 2022 Deposition Transcript for Defendant's Corporate representative.
UNDEFINED AND UNSPECIFIED DEPOSITION TOPIC
4 Plaintiff's counsel now attempts to request the deposition of the corporate
representative (even after he suspended the October 19, 2022 Deposition) without identifying any
delineated and specific deposition topic(s). Instead, the proposed deposition topic requests that
the proposed corporate representative designee have a knowledge of the following wide reaching
and sweeping deposition topic of this case. See below.
ey Naat 13) Fe) Motey-ile)\ i
T/B/D TIBID
VIA ZOOM
(Information to be provided)
Milestone Reportin
(407) 423-9900
Topic: Zaskia Mercado v. Cheddar's Casual Cafe, Inc.
5 The proposed deposition topic as it relates to an 2017 incident filed in 2020 is.
overly broad, unduly burdensome, vague, ambiguous and seeks documentation/information that
is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence,
especially since it is neither limited in scope nor time. Defendant further objects to this Request,
as phrased, it may seek documentation/information that was created and prepared in anticipation
of litigation and are therefore protected from disclosure by the attorney-client and work product
doctrine.
6. Furthermore, Defendant takes issue with the request to depose Defendant's
corporate representative a second time especially since it was Plaintiffs counsel that suspended
oe
CASE NO. 2019-CA-001939-ON
the deposition after only 40 minutes and elected not to continue the deposition without asking any
questions on any of the 26 deposition topics outlined in Plaintiff's October 18, 2022 Notice of
Taking Deposition of the Corporate Representative and Duces Tecum for either the Mercado or
Piedrahita cases, attached hereto as Exhibit D.
PROPOSED DUCES TECUM NO. 5 IS DUPLICATIVE OF A DUCES TECUM_NO. 22
WHICH WAS IS THE SUBJECT OF THE JUNE 13, 2022 AGREED ORDER
7. Defendant also takes issue with Plaintiff's proposed Duces Tecum No. 5 which
seeks “Defendant's file pertaining to any and all prior incidents involving customer slip and falls
at, near, or on the path/corridor to the bathroom at the subject store for the three year period of
time immediately preceding the subject incident. This same duces tecum request was previously
resolved by this Court as memorialized in the Court’s June 13, 2022 executed Agreed Order
attached hereto as Exhibit E, where the Court sustained our objection and granted Defendant's
Motion for Protective Order.
8 In accordance with the Court’s June 13, 2022 Agreed Order, Defendant's
Objections to Duces Tecum No. 22, which sought “[a] true and correct copy of any and all written
complaints or documents showing claims or complaints made as to employees and/or customers
falling or slipping on substances on Defendant's premises within the last three (3) years in a
manner substantially similar to that alleged in the Complaint” was sustained and Defendant's
Motion for Protective Order was granted with respect to this duces tecum.
9 Plaintiff's counsel now seeking to ignore the Court's June 13, 2022 Order by
attempting to request the same duces tecum in its August 16, 2023 proposed duces tecum. As
this same issue was already subject of the Court's Agreed Order, dated June 13, 2022, Plaintiff
should be estopped from circumventing the prior ruling and Agreed Order should remain in effect.
-3-
Filing # 159465605 E-Filed 10/18/2022 04:15:17 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO: 2019-CA-001939
ZASKIA MERCADO,
Plaintiff,
vs.
CHEDDAR'S CASUAL CAFE, INC.,
Defendant.
/
PLAINTIFF’S NOTICE OF DEPOSITION DUCES TECUM
PLEASE TAKE NOTICE that Plaintiff, ZASKIA MERCADO, by and through the
undersigned attorneys will take the following Deposition:
LDA Wr WI 1b) tO 3 Olen. i Oe
Noe ae
October Corporate
VIA ZOOM Milestone Reporting:
19, 2022 Representa
EST 11:00 tive
Time: Oct 19, 2022 11:00 AM Eastern Time (US and Canada)
AM (Produced
Join Zoom Meeting
b: https://usO6web.zoom.us/j/82652276139?pwd=NFA2WUJtUUdOc25F
Counsel)
ZOZoMjZQa0RxUT09
Meeting ID: 826 5227 6139
Passcode: 133984
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| Exhibit D
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Find your local number: https://us06web.zoom.us/u/keEcrOBLWr
*Please advise, no less than seventy-two (72) hours prior to the above scheduled deposition,
if an interpreter is required.
upon oral examination before Milestone Reporting, Court Reporters, or a Notary Public in and for
the State of Florida at Large, or some other officer duly authorized by law to take depositions and
videotaped by Milestone Reporting for the purposes of discovery, for use at trial, or both of the
foregoing, or for such other purposes as permitted under the applicable and governing rules. You
are to have with you at the time of the deposition, all documents and tangible things listed on the
attached Exhibit “B,” pursuant to Rules 1.350 and 1.410(c), Florida Rules of Civil Procedure. The
oral examination will continue from day to day until completed.
YOU ARE REQUESTED TO PROVIDE TO THE UNDERSIGNED, AT
LEAST SEVEN (7) BUSINESS DAYS PRIOR TO THE TIME OF THE
DEPOSITION, ALL DOCUMENTS AND TANGIBLE THINGS LISTED
ON THE ATTACHED EXHIBIT "B".
Any documents or tangible things responsive to this request which, nonetheless, are not
produced by reason of a claim of privilege work product or for any other reason shall be
identified in writing by (1) date; (2) author; (3) recipient; (4) general subject matter; (5)
identity of person or persons to whom the contents of the document have already been
revealed; (6) the identity of the person or entity now in possession or control of the
document or tangible thing; and (7) the basis upon which it is being withheld.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 18, 2022, I electronically filed the foregoing with the Clerk
of Court by using the Florida Court e-Filing Portal. I further certify that Pursuant to Rule
2.516(b)(1) I forwarded the foregoing this same day via Email to: Kurt M. Spengler, Esq. and
Melissa T. Woodward, Esq., Wicker Smith O'Hara McCoy & Ford, P.A., 390 N. Orange Ave.,
Suite 1000, Orlando, FL 32801, via email at ORLcrtpleadings@wickersmith.com.
/s/ Manuel Stefan, Esq.
Manuel “Manny” Stefan, Esq.
Florida Bar No.: 0103389
MORGAN & MORGAN, P.A.
4495 South Semoran Blvd.
Orlando, FL 32822
Telephone No.: (407) 452-6982
Facsimile No.: (407) 572-0124
Primary email: MStefan@forthepeople.com
Secondary email: CVictor@ForThePeople.com
Attorney for Plaintiff
DEFINITIONS AND INSTRUCTIONS
Unless the context indicates otherwise, the following definitions apply to each
category of documents and tangible things listed below and are incorporated by reference into each
specific request for documents and tangible things:
The word "DOCUMENT" shall mean all materials within the scope of Rule 1.350(a),
including but not limited to, all writings and recordings, (including originals and all nonidentical
copies, whether different from the original by reason of any notation made on such copies or
otherwise) emails and attachments, correspondence, memoranda, reports, notes, diaries,
statements, (written or electronically recorded) summaries, inter-office and intra-office
communications, notations of any sort of conversations; and graphic or electronic representations
of any kind including without limitation, photographs, charts, microfiche, microfilm, video tape,
DVD, DVR, recordings, motion pictures, plans, drawings, blueprints and surveys.
A The words "SUBJECT INCIDENT," "SUBJECT ACCIDENT," “INCIDENT”
and "ACCIDENT," shall be deemed to mean the incident alleged in the Plaintiff's Complaint on
the date and location as alleged in Plaintiff's Complaint.
B. The word "STATEMENT" shall be deemed to mean any oral, written or
electronically recorded description, recitation, version or explanation of the SUBJECT
INCIDENT, given by any person at any time whatsoever, pertaining to the SUBJECT
INCIDENT.
C. The word "PLAINTIFF" shall mean Zaskia Mercado.
D. Any request for production of documents or tangible things shall be deemed to
require production of each and every such thing executed, created, prepared, received or in
effect at any time to the present, or during any other indicated time period.
E. Whenever appropriate, the conjunctive ‘and" should be interpreted in the
disjunctive to include the term "and vice versa.
F. Whenever appropriate, the singular form of a word should be interpreted in
the plural and vice versa.
G. Any documents or tangible things responsive to this request which,
nonetheless, are not produced by reason of a claim of privilege work product or for any other
reason shall be identified in writing by (1) date; (2) author; (3) recipient; (4) general subject
matter; (5) identity of person or persons to whom the contents of the document have already been
revealed, (6) the identity of the person or entity now in possession or control of the document or
tangible thing; (7) the basis upon which it is being withheld.
EXHIBIT "A"
Defendant, CHEDDAR’S CASUAL CAFE, INC.’s Corporate Representative will need
consent to testify on its behalf about the following areas of inquiry:
1. The name of the person/entity that possessed/owned/controlled the premises as alleged in
Plaintiff's Complaint on the date of the incident alleged in the Complaint.
2. The condition of the flooring at the time and location of the incident when Plaintiff was
injured.
3. Any and all facts leading up to, concerning, or surrounding any substances or
objects on the floor of the subject premises, specifically as identified by the Plaintiff at her
deposition, including the substance which is the subject of this action.
4. Any and all facts/information related to inspections of the flooring where the incident
occurred for twelve (12) hours prior to the subject incident.
5. Any and all facts/information related to inspections of the flooring where the incident
occurred for twelve (12) hours after to the subject incident.
6. Any and all facts/information related to what, if any, caution cones or warning signs were
present at the time and location of the subject incident.
7. The name of the person/contractor/entity that was responsible for inspecting the subject premises
as alleged in Plaintiff's Complaint for any defects and/or dangerous conditions at the time of the
incident described in the Complaint.
8. The name of the person/contractor/entity that was responsible for floor of the subject premises
as alleged in Plaintiff's Complaint at the time of the incident described in the Complaint.
9. The name of the person/contractor/entity that was responsible for cleaning the
floor of the subject premises as alleged in Plaintiffs Complaint at the time of the incident described
in the Complaint.
10. The job responsibilities for employees who had responsibilities for maintenance, cleaning, and
inspection of the floor and working at the premises on the date of the incident described in the
Complaint.
11. The facts and circumstances surrounding the incident described in the Complaint.
12. Defendant’s Answers to Plaintiff's Interrogatories.
13. The Defendant’s position and opinion as to how the incident described in the Complaint
occurred.
14. The factual basis for all affirmative defenses asserted in the Defendant’s Answer to the
Plaintiff's Complaint.
15. The identity of all persons, known by the Defendant, who witnessed and/or has knowledge
regarding the incident described in the Plaintiff's Complaint.
5
16. The Defendant’s policies and procedures for training new employees regarding
maintenance, cleaning, and inspections in effect at the time of the subject incident.
17. Any and all computer based training provided to employees/agents in the year preceding
the subject incident that relates to maintenance, cleaning, and inspections in effect at the
time of the subject incident.
18. Any and all video based training provided to employees/agents in the year preceding the
subject incident that relates to maintenance, cleaning, and inspections in effect at the time
of the subject incident.
19. Any and all written materials provided to employees/agents in the year preceding the
subject incident that relates to maintenance, cleaning, and inspections in effect at the time
of the subject incident.
20. The Defendant’s policies and procedures, written or otherwise, that relates to maintenance,
cleaning, and inspections in effect at the time of the subject incident.
21. Any and all written materials provided to employees in the year preceding the subject
incident that relates to employee duties, policies and procedures that relates to
maintenance, cleaning, and inspections in effect at the time of the subject incident.
22. Facts related to any individual falling or slipping in Defendant’s premises within the three (3)
years prior to the present matter in a manner substantially similar to that
alleged in the Complaint.
23. How often there had been a transitory foreign substance on the floor of the subject premises
within the three (3) years prior to the present matter.
24. Knowledge about any and all policies of insurance and excess policies of insurance that
cover this incident.
25. Knowledge as to policies and procedures of employee conduct, proper grooming, and dress
code while working in the premises.
26. The existence of items and areas identified below in the Exhibit “B” section of this Notice,
and if said items do not exists, the steps taken to make that determination.
EXHIBIT "B"
Defendant, CHEDDAR’S CASUAL
CAFE, INC.’S, Corporate Representative Shall Bring
These Items To The Deposition Pursuant to Fla. R. Civ. P. 1.350 and 1.410(c):
1. All statements made by any witnesses to the subject accident at the subject premises as alleged
in Plaintiff's Complaint.
2. All statements made by the Plaintiff pertaining to or concerning the subject matter.
3. All photographs of Plaintiff depicting injuries received in the subject incident.
4. All photographs of the incident scene and surrounding areas.
5. All photographs of the dangerous condition as alleged in Plaintiff's Complaint.
6. All surveillance video/pictures of Plaintiff taken during or following the subject
incident.
7. All written documents received by Defendant prior to or on the date of this incident
relating to or discussing the condition which Plaintiff alleges to be a dangerous condition in
Plaintiff's Complaint.
8. All surveillance/security/CCTV video footage of the subject incident and of the
walkway in which Plaintiff slipped and fell in during the 4 hour period of time immediately
preceding the subject incident and immediately following the subject incident.
9. A copy of any and all insurance agreements, insurance policies or agreements of
any kind of nature under which any person or company carrying on an insurance business may be
liable to satisfy part of all of a judgment that may be entered in this action or to indemnify or
reimburse any payments made to satisfy any such judgment or settlement, including but not limited
to a certified copy of the declarations sheet as to each such policy.
10. A copy of any incident/accident/witness report or other documents done in the
ordinary course of business containing information about the incident alleged in the Complaint,
completed by you, or your agents, representatives, or employees surrounding the subject accident.
11. Any and all inspection or check-off sheets or other documents showing who
performed inspections, what kind of inspections were performed, the times of the inspections or
other information about the inspections that might have been done on the date of the subject
accident, as well as the five (5) days before that date in the area where the Plaintiff fell.
12. Any and all documents relating to any inspections that may have been done on the
date of the subject accident, the five (5) days before that date and the five (5) days after that date
on Defendant's premises.
13. Time sheets, clock cards or any other documents showing the hours and time
worked by any employees working on the date of the subject accident, with responsibilities for
inspecting the premises for dangerous conditions, cleaning up dangerous conditions or maintaining
the premises.
14. Inspection sheets and/or and other documents for inspections that were used on the
date of the subject accident, or that are now used by employees at Defendant's premises, for
inspections.
15. A true and correct copy of any contracts or agreement with any entity used by
Defendant with any responsibilities for inspecting the subject premises for dangerous conditions
or for training your employees about such.
16. A true and correct copy of any and all written inspection, maintenance procedures or
policies in place on the date of the subject accident, at Defendant's premises.
17. A true and correct copy of any and all safety manuals or videos, inspection manuals
or videos or training manuals or videos that any employee who was working on the date of the
subject accident, with responsibilities for inspecting the premises for dangerous conditions,
cleaning up dangerous conditions or maintaining the premises may have received from Defendant.
18. All Defendant's _ policies and/or procedures, manuals or documents regarding:
a) Inspection of the premises by employees or other individuals;
b) Discovery of any dangerous condition on Defendant’s premises by employees;
c) Correcting of any dangerous conditions on Defendant’s premises by employees; and
d) Reporting or documenting of accidents on Defendant’s premises.
19. A true and correct copy of any and all documents provided to the employees of the
Defendant who were on duty on the date of the subject accident, explaining maintenance, cleaning,
inspection, and safety precautions at Defendant's premises.
20. A true and correct copy of any and all written complaints or documents showing
claims or complaints made as to employees and/or customers falling or slipping on substances on
Defendant's premises within the last two (2) years in a manner substantially similar to that alleged
in the Complaint.
21. Meeting minutes for any safety, committee, or other meetings in which the foreign
substances on the floor at the subject premises was discussed for three years before the subject
incident.
22. All correspondence (e-mail, text messages, etc.) regarding the foreign
letters,
substances and/or potential safety concerns the foreign substances on the floor of the subject
premises.
23. List of other slip or falls on the flooring of the subject premises for the three (3) year period
prior to the subject incident.
24. All personnel files for any employees with knowledge of the subject claim or facts
related to the claim and/or incident investigation/reporting and/or store security system. This
request is not intended to disclose any confidential and/or private information and should exclude
any and all social security numbers, payment information, protected health information and
8
personal addresses. This request only asks for all training documentation, disciplinary information,
and job applications or resumes contained within the requested personnel files.
25. A layout of all active surveillance/security/CCTV cameras for the subject area within the
premises.
26. A true and correct copy of any and all photographs taken of the accident scene.
27. Any and all video images that depict the events alleged in the complaint.
28. Any and all video images of Plaintiff.
29. Any and all video images of the incident.
30. Any and all video images of the scene where the incident occurred for the period
of time beginning 60 minutes before the incident and ending 60 minutes after the incident.
CASE NO. 2019-CA-001939-ON
WHEREFORE, Defendant, CHEDDAR'S CASUAL CAFE, INC, respectfully requests that
this Court enter a Protective Order with regards to the foregoing and any other relief the Court
deems just and proper.
WE HEREBY CERTIFY that a copy hereof has been electronically served via Florida
ePortal to: Manuel Stefan, Esquire, mstefan@forthepeople.com, cvictor@forthepeople.com; on
this 21% day of August, 2023.
/s/ Melissa T. Woodward
Melissa T. Woodward, Esquire
Florida Bar No. 022143
WICKER SMITH O'HARA MCCOY & FORD, P.A.
Attorneys for Cheddar's Casual Café, Inc.
390 N. Orange Ave., Suite 1000
Orlando, FL 32801
Phone: (407) 843-3939
Fax: (407) 649-8118
ORLcrtpleadings@wickersmith.com
=4=
Filing # 91256677 E-Filed 06/18/2019 11:01:45 AM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO:
ZASKIA MERCADO,
Plaintiff,
vs.
CHEDDAR’S CASUAL CAFE, INC.,
Defendant.
/
COMPLAINT
COMES NOW Plaintiff, ZASKIA MERCADO, and sues Defendant, CHEDDAR’S
CASUAL CAFE, INC., and alleges:
!
1 This is an action for damages that exceeds Fifteen Thousand Dollars
'
($15,000.00), exclusive of interest, costs and attorney’s fees, |
2. Plaintiff is a natural person residing in Osceola County, Florida.
3 At all times material to this action, CHEDDAR’S CASUAL CAFE, Ne is a
Foreign Profit corporation licensed to do business and was doing business in Osceola County,
Kissimmee, Florida.
4 At all times material hereto, Defendant was in possession and control of that
business Cheddar’s Scratch Kitchen located at 875 West Osceola Parkway, Osceola County,
Kissimmee, Florida, said business being that of a restaurant, open to the general public, inci ling
the Plaintiff herein.
EXHIBIT A
{|
5 At all times material hereto, Defendant was in charge of the maintenance of the
|
subject property referred to in paragraph #4,
6. At all times martial hereto, Defendant had possession and control of the premises
t
located at 875 West Osceola Parkway, Osceola County, Kissimmee, Florida. |
7. On or about June 2, 2017, Plaintiff visited Defendant’s premises located at 875
West Osceola Parkway, Osceola County, Kissimmee, Florida.
8 On or about June 2, 2017, Plaintiff was a business invitee lawfully present upon
the premises of the Defendant at the restaurant referred to in paragraph #4.
9 At said time and place, Plaintiff was on her way to the restroom when she slipped
ona liquid/greasy like substance at or near the restrooms, causing the Plaintiff to suffer injuries.
10. At all times material hereto, Defendant negligently allowed a dangerous condition
to exist on their said premises. This dangerous condition consisted of a greasy/liquid, like
substance on the floor approaching the restrooms, or near the restrooms, which caused the
Plaintiff to slip and fall, sustaining injuries. |
1h. At all times material hereto, Defendant owed Plaintiff a non-delegable chity to
maintain the premises in a reasonably safe condition and to correct any dangerous condition which
it either knew of or should have known by the use of reasonable care to avoid injuries to its
customers, including the Plaintiff. |t
12. Further, Defendant owed Plaintiff a non-delegable duty to warn of any latent
conditions about which it had, or should have had, knowledge greater than Plaintiff and which
created an unreasonable risk of harm to Plaintiff. '
|
13. Also, Defendarit owed Plaintiff a non-delegable duty to remedy the dang
condition or otherwise remove it and/or eliminate it. 1
14. Importantly, Defendant owed Plaintiff a duty not to create any dangerois or
'
hazardous conditions. {
|
15. Lastly, Defendant owed Plaintiff a duty to inspect or adequately inset for
dangerous conditions, specifically the slippery/greasy floors at or near the restrooms which are used
|
daily by customers, including the Plaintiff.
16. The Defendant failed to act reasonably under all circumstances. I
17, At said time and place, Defendant negligently breached the aforementioned duties
1
owed to Plaintiff. !
|
18. At all times material to the subject incident, Defendant had actual knowlege f the
dangerous condition created by the liquid/greasy like substance on the floor on the way, at, of near
the restrooms; and failed to take proper action to remedy this condition.
19. At all times material to the subject incident, Defendant had constructive know ledge
of the dangerous condition created by the liquid/greasy like substance on the floors on the way, at,
or near the restrooms, because the dangerous condition existed for such a length of time that, in the
exercise of ordinary care, the business establishment should have known of the condition; and/or the
1
condition occurred with regularity and was therefore foreseeable,
{
20. Asa direct and proximate result of the negligence of the Defendant, the Plaintiff was
injured in and about her body and extremities; suffered pain there from, resulting in pain and
suffering; disability; disfigurement; permanent and significant scarring; mental anguish; incurred
medical expenses for the treatment of said injuries; incurred pain and suffering of both a Phiysical
and mental nature; and suffered physical handicap; incurred loss of ability to lead and eniey a
normal life; aggravation or activation of previously existing or latent conditions; incurred fobs of
wages and a loss of wage earning capacity, all of which are either permanent or continuing in nature
|
and the Plaintiff will sustain said losses and impairment in the future. l
WHEREFORE, the Plaintiff, ZASKIA MERCADO, sues the Defendant, CHEDDAR’.
CASUAL CAFE, INC., for damages and demands judgment in excess of Fifteen Thousand
Dollars ($15,000.00), plus interest and costs, and demands trial by jury of all issues so triable
RESPECTFULLY submitted this 18" day of June, 2019
Ni
/s/ Manuel Stefan, Esq.
Manuel “Manay” Stefan, Esq.
Florida Bar No.: 0103389
MORGAN & MORGAN, P.A.
198 Broadway Avenue
Kissimmee, FL 34741
Telephone No.: (407) 452-6982 |
1
Facsimile No.: (407) 572-0124
Primary email: MStefan@forthepeople.com
Secondary email: EDiaz@forthepeople.com
Attorney for Plaintiff
Filing # 132932583 E-Filed 08/18/2021 01:51:35 PM
'92358-5/mtw/12465972
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND FOR
OSCEOLA COUNTY, FLORIDA
ZASKIA MERCADO,
Plaintiff, CASE NO. 19CA1939-ON
vs.
CHEDDAR'S CASUAL CAFE, INC.,
Defendant.
/
ORDER GRANTING IN PART DEFENDANT'S MOTION TO
CONSOLIDATE FOR PURPOSES OF DISCOVERY
THIS MATTER came on for consideration/hearing on August 17, 2021, on the above
motion, and the Court having reviewed the pleadings, having heard argument of counsel, and
being duly advised in the premises, states it is hereby:
ORDERED AND ADJUDGED as follows:
Defendant's Motion to Consolidate Plaintiffs Request to Depose Defendant's Corporate
Representative in the above referenced case and in the case styled Zulay Piedrahita v. Cheddars
Casual Café, Case No. 19-CA-01012 ON, also currently venued in Osceola County, is GRANTED
IN PART.
The deposition of Defendant's designated Corporate Representative for both referenced
lawsuits shall take place on the same day. Plaintiffis only permitted to ask Defendant's Corporate
Representative questions regarding his background, i.e. education, pre-Darden job experience
and current Darden employment experience, including but not limited to, training, policies and
protocols only once. Duplicative questions concerning these topics shall not be permitted in the
second corporate representative deposition to take place the same date.
DONE AND ORDERED at Kissimmee, Osceola County, Florida, this day of
2021.
KRebut (Gan CBb/1B/202/
Honorable Robert J. Egan
COPIES FURNISHED TO:
Manuel Stefan, Esquire Kurt M. Spengler, Esquire
Morgan & Morgan, P.A. Melissa T. Woodward, Esquire
Attorneys for Plaintiff Attorneys for Defendant
198 Broadway Avenue WICKER SMITH O
Related Content
in Osceola County
Ruling
PATRICK GRAHAM VS MACARIA BELTRAN, ET AL.
Jul 10, 2024 |
22CHCV00784
Case Number:
22CHCV00784
Hearing Date:
July 10, 2024
Dept:
F49
Dept. F49
Date: 7/10/24
Case Name:
Patrick Graham v. Macaria Beltran, individual and trustee of The MCB Trust; and Does 1-10
Case No. 22CHCV00784
LOS ANGELES SUPERIOR COURT
NORTH VALLEY DISTRICT
DEPARTMENT F49
JULY 10, 2024
MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF SPECIAL INTERROGATORIES; REQUEST FOR SANCTIONS
Los Angeles Superior Court Case No. 22CHCV00784
Motion filed:
5/10/24
MOVING PARTY:
Defendants Macaria Beltran, an individual, and Macaria Beltran, Trustee of The MCB Trust (collectively, Defendants)
RESPONDING PARTY:
None.
NOTICE:
NOT OK (see analysis below).
RELIEF REQUESTED:
An order compelling Plaintiff to produce supplemental responses to Defendants first set of Special Interrogatories and imposing monetary sanctions against Plaintiff and his attorney of record for $1,635.00
TENTATIVE RULING:
The motion is DENIED. The request for monetary sanctions is DENIED.
BACKGROUND
Plaintiff initiated this action on September 26, 2022. Subsequently, on December 12, 2022, Plaintiff filed his operative First Amended Complaint (FAC) against Defendants and Does 1 to 10, alleging the following causes of action: (1) Fraud; (2) Negligent Misrepresentation; and (3) Specific Performance. Following this, Defendants filed their Answer to the FAC on January 11, 2023.
On May 10, 2024, Plaintiff filed a Substitution of Attorney with the Court, substituting himself for his former counsel.
Subsequently, on the same day, May 10, 2024, Defendants filed the instant Motion to Compel Further Responses to Special Interrogatories (SROG), Set One (the Motion).
No Opposition or Reply papers have been received by the Court.
ANALYSIS
On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).)
A.
Procedural Requirements
1.
Timeliness
Pursuant to Code of Civil Procedure section 2030.300, subdivision (c), notice of this motion must be given within 45 days following the service of the verified response, or any supplemental verified response, or by a later date agreed-upon in writing, failing which the propounding party waives any right to compel a further response to the interrogatories. (Code Civ. Proc., § 2030.300, subd. (c)
; but see
Golf & Tennis Pro Shop, Inc. v. Superior Court
(2022) 84 Cal.App.5th 127, 134-136 [suggesting that the 45-day deadline does not apply to (i.e., it does not begin to run with service of) objections-only responses; it only applies to responses that are required to be verified].)
The 45-day deadline is jurisdictional in the sense that it renders the court without authority to rule on motions to compel other than to deny them. (
Sexton v. Superior Court
(1997) 58 Cal.App.4th 1403, 1410.)
Any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days[.] (Code Civ. Proc., §
1010.6, subd. (a)(3)(B).)
Here,
Plaintiff served written responses by email to Defendants first set of SROG on February 14, 2024, (Block Decl. ¶ 4, Ex. B.) The service of written responses establishes the deadline for Defendants to file a motion to compel further as April 4, 2024, calculated based on a 45-day period with an extension of two court days per Code of Civil Procedure section 1010.6, subdivision (a)(3)(B), accounting for the method of electronic service.
Therefore, the Court finds the Motion is filed timely as it was filed prior to the established deadline.
2.
Meet and Confer
A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2030.300, subd. (b)(1).)
A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Code Civ. Proc., § 2016.040.)
Here, the Court finds Defendants meet and confer efforts to be sufficient. (Block Decl. ¶ 5, Ex. C and D.)
3.
Separate Statement
The California Rules of Court rule 3.1345 (a)(2) explicitly states that Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: ... (2) To compel further responses to interrogatories.
A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. (Cal. Rules of Court, rule 3.1345(c).)
Here, Defendants have fulfilled the requirement by concurrently filing a separate statement with the Motion.
4.
Proof of Service
For noticed motions, [u]nless otherwise ordered or specifically provided by law, all moving and supporting papers must be served and filed in accordance with Code of Civil Procedure section 1005 and, when applicable, the statutes and rules providing for electronic filing and service. (Cal. Rules of Court, rule 3.1300(a).)
Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. (Code Civ. Proc., § 1005, subd. (b).)
Furthermore, [i]f a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of that document is deemed complete at the time of the electronic transmission of the document or at the time that the electronic notification of service of the document is sent. (Code Civ. Proc., § 1010.6, subd. (a)(3)(A).)
Here, Defendants submit Proof of Service, indicating that on May 10, 2024, papers associated with the Motion were served upon Plaintiffs former counsels, Adam Grant and David Almaraz, by emailing the documents to the former counsels email addresses.
However, the Proof of Service was filed with the Court at 4:25 p.m. concurrently with the Motion, subsequent to Plaintiffs filing of Substitution of Attorney at 3:36 p.m. on the same day.
According to Code of Civil Procedure section 284, which provides that [t]he
attorney in an action or special proceeding may be changed at any time before or after judgment or final determination ... [u]pon the consent of both client and attorney, filed with the clerk, or entered upon the minutes, Plaintiffs former counsels ceased to represent Plaintiff upon the filing of the Substitution of Attorney, i.e., at 3:36 p.m. on May 10, 2024, and are no longer authorized to accept service on Plaintiffs behalf. Moreover, Defendants have not submitted any evidence of service upon the self-representing Plaintiff.
Therefore, Defendants have failed to demonstrate effective service of the moving papers either on Plaintiffs former counsels or on Plaintiff, in pro per, pursuant to applicable Code of Civil Procedure sections.
Based on the above records, the Court determines that Defendants Motion does not comply with Code of Civil Procedure section 1005 and California Rules of Court rule 3.1300(a).
Therefore, the Court DENIES the Motion.
B.
Monetary Sanctions
As the Court has denied the Motion, the request for monetary sanctions, reserved for a prevailing party under Code of Civil Procedure section 2030.300, subdivision (d), is also DENIED.
CONCLUSION
Defendants Motion to Compel Further Responses to Special Interrogatories, Set One, is DENIED.
Defendants Request for Monetary Sanctions is DENIED.
Moving party to give notice.
Ruling
FILIPIAK vs GENESIS MOTOR AMERICA LLC, a California Limited Liability Company
Jul 10, 2024 |
SCV-273614
SCV-273614, Filipiak v. Genesis Motor America LLC, a California Limited
Liability Company
Plaintiff Filipiak moves for attorneys’ fees in the total amount of $48,063.52 for attorney fees per
Civil Code section 1794(d). The motion is GRANTED for the reduced amount of $24,300 plus
costs of $573.52.
PROCEDURAL HISTORY
Plaintiff filed this action against Genesis Motor America LLC (“Genesis”) asserting breach of
warranty under the Song-Beverly Act regarding a vehicle Plaintiff bought from Genesis.
Ultimately, the parties settled their claims on February 1, 2024. The parties agreed as part of
their settlement that Plaintiff’s attorney’s fees would be decided by noticed motion. Plaintiff, as
the prevailing party, now brings this motion for attorney’s fees. Genesis opposes the motion.
ANALYSIS
Legal Standard
Under Code of Civil Procedure section 1032, attorney's fees are an allowable cost when
authorized by contract, statute, or law. (C.C.P. § 1033.5(a)(10)(B).) In general, the “prevailing
party” is entitled as a matter of right to recover costs of suit in any action or proceeding.
(Santisas v. Goodin (1998) 17 Cal.4th 599, 606.)
The Song-Beverly Act allows for additional recovery by a buyer who prevails in an action per
Civil Code section 1794(d), for reasonably incurred costs including attorney’s fees based on
actual time expended expenses and other costs in connection with the commencement and
prosecution of such action.
Moving Papers
Plaintiff argues that he incurred $29,160.00 in fees legal representation and $573.52 in costs.
Plaintiff requests an approval of a total of 48.6 hours of worked. Counsel is requesting an hourly
rate of $600 per hour for two attorneys that have 15 and 16 years of experience, respectively.
Counsel has been previously rates of $500 and $550 in other matters in Sonoma County.
Counsels also request a multiplier of 1.5 to the lodestar fees requested so that the total attorney’s
fees amount requested is $43,740. They represented their client on a contingent basis.
Genesis argues that Plaintiff has already obtained the relief demanded under the Song-Beverly
Consumer Warranty Act, so Plaintiff’s attorney’s fees should be reduced significantly to only
28.9 hours of legal representation and a maximum rate of $375 per hour. Genesis argues that a
multiplier should not be applied.
Application
Based on the moving papers, the Court finds Plaintiff is entitled to costs and attorney’s fees per
Civil Code section 1794(d). The Court finds the hours worked by counsels to be reasonable. The
Court will reduce counsels’ requested rates to the amounts reasonable in the local area. The
Court also does not find that a multiplier of 1.5 is warranted in this matter as counsel has not
shown sufficient justification for the enhancement. As such, the Court will award fees in the
amount of $24,300 at a rate of $500 per hour plus costs of $573.52.
CONCLUSION
Based on the foregoing, Plaintiff’s motion for attorneys’ fees is GRANTED for the total amount
of $24,300 plus costs of $573.52. Plaintiff shall submit a written order to the Court consistent
with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).
Ruling
YANG RIM CO., LTD, A KOREAN CORPORATION VS A & Y INTERNATIONAL GLOBAL INC., A CALIFORNIA CORPORATION, ET AL.
Jul 09, 2024 |
23STCV04534
Case Number:
23STCV04534
Hearing Date:
July 9, 2024
Dept:
54
Superior Court of California
County of Los Angeles
Yang Rim Co., Ltd.,
Plaintiff,
Case
No.:
23STCV04534
v.
Tentative Ruling
A & Y International Global Inc., MIQBA, Inc., Adrian Nasimi, David Kim, Fred Kim, et al.,
Defendants.
Hearing Date: July 9, 2024
Department 54, Judge Maurice A. Leiter
Motion for Leave to File a Cross-Complaint
Moving Party
: Defendants A & Y International Global Inc., Adrian Nasimi
Responding Party
: Plaintiff Yang Rim Co., Ltd.
T/R
:
DEFENDANTS MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT IS GRANTED.
DEFENDANTS to notice.
If the parties wish to submit on the tentative, please email the courtroom at
SMCdept54@lacourt.org
with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing.
The Court considers the moving papers, opposition, and reply.
BACKGROUND
Plaintiff brought the present action for (1) breach of contract(s), (2) account stated, (3) open book account, (4) common count for services performed, (5) fraud/false promise, and (6) negligent misrepresentation, based on an alleged series of purchase order contracts entered into by Plaintiff and Defendants.
Defendants David Kim, Fred Kim, and MIQBA, Inc. are in default.
ANALYSIS
A party who fails to plead a cause of action.¿.¿. whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action.
The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith.
This subdivision shall be liberally construed to avoid forfeiture of causes of action.
(CCP § 426.50.)
Causes of action involving the same transaction or occurrence as the claims in the plaintiffs complaint are compulsory and are forfeited if not pleaded in the same action.
(CCP § 426.30(a); 426.10(c).)
The Court has no discretion to deny a motion for leave to file a compulsory cross-complaint absent substantial evidence of bad faith.
(
Silver Organizations Ltd. v. Frank
(1990) 217 Cal.App.3d 94, 98-99.)
Permission to file a permissive cross-complaint may be granted in the interest of justice at any time during the course of the action.
(CCP § 428.50(c).
Defendants A & Y International Global Inc. and Adrian Nasimi move for leave to file a cross-complaint against Plaintiff Yang Rim Co., Ltd. and Co-Defendants MIQBA, Inc., Fred Kim, David Kim, and new party Alex Kim for (1) intentional fraud, (2) conspiracy to commit intentional fraud, (3) conversion, and (4) conspiracy to commit conversion.
The proposed cross-complaint, attached as Exhibit A, arises from the same transaction or occurrence as the underlying complaint.
Defendants argue that their first attorney, Andrew Ritholz, withdrew as attorney of record prior to the beginning of discovery and failed to file a timely cross-complaint due to neglect, inadvertence, or oversight.
Defendants newly retained counsel has learned new facts from documents produced during discovery on March 28, 2024, which support the filing of this cross-complaint.
Defendants also ask for the matter to be abated on the basis that Plaintiff is not qualified to do business in California and, thus, cannot maintain the instant lawsuit.
In opposition, Plaintiff argues that the motion is supported only by conclusions based on hearsay regarding recently discovered documents.
Plaintiff contends that the declaration of Defendants attorney is insufficient.
As noted, the Court must allow leave to file a compulsory cross-complaint absent substantial evidence of bad faith.
The Court does not find evidence of bad faith.
Defendants may move to abate the action through a separately filed motion.
Defendants Motion is GRANTED.
Ruling
FRANKIE LOYAL VS COTI WILLIAMS, ET AL.
Jul 09, 2024 |
6/18/2022 |
23SMCV00723
Case Number:
23SMCV00723
Hearing Date:
July 9, 2024
Dept:
I The motion to set aside the default is DENIED.
This is a fraud case.
Defendant was properly served with the complaint and demurred to it.
On September 14, 2023, the demurrer was overruled.
Defendant Coti Williams participated in the hearing remotely.
At the time the demurrer was overruled, the court specifically informed defendanteardrum to eardrumthat she had 30 days to answer the complaint.
Plaintiff waited about 60 days before seeking a default and later a default judgment.
The default was entered as against the two individual defendants, but not the entity defendant, which had not been served properly.
The court docket clearly and unambiguously reflects that dichotomy.
On December 8, 2023, Williams contacted plaintiff and stated that she had a lawyer for herself, but not the entity.
On January 18, 2024, plaintiff served defendants with
ex parte
notice relating to the entity defendant.
Defendants did not appear at the
ex parte
.
On January 31, 2024, defendants filed an answer.
The answer was filed as to the entity defendantwhich was not in default but it was not accepted as to the individual defendants, as the default precluded them from answering.
On June 7, 2024, the court held a hearing.
A person appeared who stated that he was a lawyer but did not actually say he represented defendants.
He did say that defendants intended to litigate the case.
The court advised that person that if a motion to vacate was going to be filed, it should be done quickly.
Ten days later, on June 17, 2024, the instant motion was filed.
Given the situation, the answer filed on January 31, 2024, is ineffective as to the individual defendants.
They were already in default and therefore could not answer.
It was effective as to the entity, although it appears that the entity is not a real entity.
Williams was served with the default on November 20, 2023, which was long after the time that an answer was due.
Williams asserts mistake or excusable neglect.
There is neither.
The court specifically told Williams on September 14, 2023, that she had to file an answer within 30 days or she could be defaulted.
There was no ambiguity in the courts instruction and Williams certainly did not seem confused by it.
Nothing in the moving papers suggest any basis for any confusion on that score.
Plaintiff could have sought a default 31 days after that hearing, but in an abundance of caution plaintiff waited 60 days.
And after obtaining default, plaintiff served defendants with notice of it on November 20, 2023.
Again, there could be no confusion and the courts docket is clear that the default was entered as against the individuals.
Further, even if defendants truly and honestly believed that they had filed an answer on January 31, 2024, at most it might give rise to an explanation for the delay between then and June, although given the actual docket the court does not think so.
But defendants offer no justification for the failure to file an answer as specifically instructed by the court or not moving to vacate the default in the over two months after notice of default was given.
Defendants were not misled and there was no mistake.
The court finds that the delay was deliberate and tactical.
Accordingly, the motion to set aside is DENIED.
The court also notes that the motion was not filed within 180 days of entry of the default, which makes it untimely under CCP section 473(b).
Given that, the court will enter the default judgment.
The court finds the judgment to be proper other than the punitive damages.
The amount of punitive damages is not set forth in the complaint (which is propersetting a precise amount is not allowed), and no Statement of Damages was served prior to entry of the default.
Plaintiff notes that the various defaults all included the amount sought, but that is not enough.
By the time defendants got those documents, the default had already been entered.
Further, the court is not satisfied that there has been an adequate showing of defendants financial state.
Plaintiff did find some internet evidence that one of the defendants (Pep) is a photographer who has offered pictures for sale at very significant prices.
But there is no evidence that any of the pictures actually sold for those amounts or what assets the defendants (or either of them) actually has, or any evidence as to what liabilities they have.
There is simply not enough information to justify a punitive damages award.
Therefore, plaintiff has a choice.
It can accept a default judgment in the amount sought except for punitive damages or it can vacate the default, file a statement of damages, and litigate.
If plaintiffs choose the former option, they should submit a revised proposed default judgment promptly, such as within 20 days.
Ruling
SECOND SITE LLC VS PAUL SCOTT ET AL
Jul 11, 2024 |
BC723513
Case Number:
BC723513
Hearing Date:
July 11, 2024
Dept:
68 Dept. 68
Date: 7-11-24
Case BC723513
Trial Date: 8-12-24
SUMMARY JUDGMENT
MOVING PARTY: Defendants, Erba, Inc., et al.
RESPONDING PARTY: Plaintiff, Second Site, LLC
RELIEF REQUESTED
Motion for Summary Judgment
SUMMARY OF ACTION
Plaintiff Second Site, LLC alleges entry into a partnership agreement with defendant Los Angeles Wellness Center (LAWC), whereby the parties would operate as a partnership from September 26, 2016, through September 26, 2019, with two three year options to renew. The agreement required Plaintiff a right of first refusal for the purchase of the marijuana dispensary license held by Los Angeles Wellness Center during any option period for fair market value.
On a date after July 30, 2017, LAWC opened a facility on 4665 Melrose Ave., then moved the facility to 4881 Topanga Canyon Blvd. Meanwhile, a facility operated by defendant Erba, Inc. operated a facility on Pico, acquired LAWC rights in alleged violation of the partnership agreement.
On September 26, 2018, Plaintiff filed a complaint against a number of parties, including Erba, Inc., for Breach of Partnership Agreement; Breach of Implied Covenant of Good Faith And Fair Dealing; Breach Of Fiduciary Duty; Fraud; Unfair Competition; Tortious Interference With Prospective Economic Advantage; Conversion; Conspiracy; Money Had And Received; Negligence; Declaratory Relief; and, Injunctive Relief. On October 15, 2018, Plaintiff filed a 170.6 challenge and the action was reassigned. On December 21, 2018, Plaintiff dismissed the City of Los Angeles without prejudice.
On February 1, 2019, Plaintiff filed a first amended complaint for Breach of Partnership Agreement; Breach of Implied Covenant of Good Faith and Fair Dealing; Breach of Fiduciary Duty; Fraud; Unfair Competition; Tortious Interference With Prospective Economic Advantage; Conversion; Conspiracy; Money Had And Received; Negligence; and, Declaratory Relief. On April 18, 2019, the court sustained the demurrer in part and overruled the demurrer in part.
On March 4, 2022, defendant Paul Scott filed a cross-complaint for Breach of Contract; Breach of Fiduciary Duty; Negligent Misrepresentation; and, Fraud. On August 12, 2020, the court sustained the demurrer to the cross-complaint with leave to amend. On September 14, 2020, Scott filed a first amended cross-complaint.
On November 20, 2020, the court granted Plaintiff leave to file a second amended complaint. On December 9, 2020, Plaintiff filed the second amended complaint for Breach of Partnership Agreement; Breach of Implied Covenant of Good Faith and Fair Dealing; Fraud; Unfair Competition; Tortious Interference With Prospective Economic Advantage; Conversion; Conspiracy; Money Had And Received; Declaratory Relief; Aiding and Abetting, and Accounting. The second amended complaint added in new defendants as well.
On January 14, 2021, the court sustained the demurrer to the first amended cross-complaint with leave to amend. On February 22, 2021, Scott filed a second amended cross-complaint.
On April 1, 2021, and April 22, 2021, new defendants filed 170.6 challenges, which were rejected.
On April 22, 2021, the court overruled the demurrer to the Second Amended Cross-Complaint.
RULING
: Denied
Request for Judicial Notice: Granted in Part/Denied in Part.
·
The court takes judicial notice of the second amended complaint, but not for the truth of the content.
·
The court takes judicial notice of the existence of Proposition D and California Health & Safety Code section 11379.6(a) only. Any consideration of the sections should be addressed in the points and authorities.
·
The court cannot take judicial notice of the articles of incorporation downloaded from the California Secretary of State website in that the mere filing of said items in no way constitutes an official act of the Secretary of State.
Defendants Erba, Inc., Jay Handal, Devon Wheeler, and Gabriel Dezio, move for summary judgment on the second amended complaint. Defendants move on grounds that the partnership agreement regarding marijuana licensing rights in an and of itself constituted an illegal agreement, thereby preventing enforcement of the agreement. Plaintiff Second Site, LLC in opposition maintains no illegality in the contract exists. Any additional operations were separately licensed and therefore never in violation of Proposition D. Defendants in reply reiterate the illegal nature at the core of the agreement and illegal cultivation operations. Defendants also challenge Plaintiffs failure to meet their burden of proof establishing triable issues of material fact.
The pleadings frame the issues for motions, since
it is those allegations to which the motion must respond. (
Citation.
)
(
Scolinos v. Kolts
(1995) 37 Cal. App. 4th 635, 640-641;
FPI Development, Inc. v. Nakashima
(1991) 231 Cal.App.3d 367, 382-383;
Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp.
(1994) 29 Cal.App.4th 1459, 1472.
) The purpose of a motion for summary judgment or summary adjudication is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (
Aguilar v. Atl. Richfield Co.
(2001) 25 Cal.4th 826, 843.)
Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
(
Adler v. Manor Healthcare Corp.
(1992) 7 Cal.App.4th 1110, 1119.)
On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact. (
Scalf v. D.B. Log Homes, Inc.
(2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.
(Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (
Ibid
.)
When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment. (
Avivi v. Centro Medico Urgente Medical Center
(2008) 159 Cal.App.4th 463,
467; see also Code Civ. Proc., § 437c, subd. (c).) An issue of fact can only be created by a conflict in the evidence.
It is not created by speculation, conjecture, imagination or guesswork.
(
Lyons v. Security Pacific National Bank
(1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)
Defendants argument for illegality in the purpose of the contract relies on a finding that Plaintiff sought to operate multiple growth and/or dispensary facilities under a single license. According to Defendants, the licensing requirements governed by the City of Los Angeles only allow for single site operations per license. The agreement regarding the operation for multiple sites under a single license therefore constituted a statutory violation and therefore an illegal agreement.
Malum
prohibitum
means prohibited by statute
malum
prohibitum
contracts are illegal as contrary to a statute. (
Russell City Energy Co., LLC v. City of Hayward
(2017) 14 Cal.App.5th 54, 71.) If any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void. (Civ. Code, § 1608.) [T]he doctrine of
illegality
considers whether the
object
of the
contract
is
illegal
. It does not turn on whether the
illegality
applies to the
party
seeking to enforce the agreement. (
McIntosh v. Mills
(2004) 121 Cal.App.4th 333, 346.) [M]alum prohibitum contracts may be enforceable despite their illegality if the parties were not in pari delicto. (
Id
. at p. 344 (footnote 10).)
The court reviews certain material terms of the agreement.
In addition to the partnership and options agreement, paragraph 14 of the operative complaint alleges a profit sharing agreement with reference to operations (e.g. facilities in more than one location). The next paragraph continues that the agreement itself was based on a City of Los Angeles Measure D compliant dispensary for the sale of marijuana products in accordance with requirements regulations of the City of Los Angeles and Department of Cannabis Regulations. The partnership agreement identifies three separate locations for intended operations: 8010-8012 Remmet Ave in Canoga Park; 7027-7029 Eton Ave in Canoga Park; and, 4665 Melrose Ave in Los Angeles. [Declaration of Arthur Hodge, Ex. 1-2.]
Defendants cite to Proposition D for support of the argument regarding a prohibition of operations in more than one location per license. Notwithstanding the provision, and lack of challenge from Plaintiff on the specific subject, the Los Angeles Municipal Code indicates a repeal of Proposition D:
The voters of the City of Los Angeles adopted Article 5.1 of Chapter IV of the Los Angeles Municipal Code regarding medical marijuana (Sections 45.19.6 through 45.19.6.9) as part of Proposition D, a referendum submitted to the voters by the City Council at the election held on May 21, 2013. The Council shall adopt an ordinance repealing these provisions of Proposition D (Sections 45.19.6 through 45.19.6.9) effective January 1, 2018, unless the Council adopts a Resolution, by majority vote, specifying another date for the repeal. The Council retains and possesses authority to amend, by ordinance, these provisions of Proposition D prior to its repeal.
Sections 45.19.6 through 45.19.6.9 no longer appear operative. While the alleged breach appears to have occurred sometime after 2017, the argument in support of the motion for summary judgment in no way addresses the impact of the repeal of the operative statute. The court declines to make the arguments for moving parties, as it is their burden to establish the lack of a valid claim through the affirmative defense of illegal contract. The City of Los Angeles apparently now regulates cannabis operations via the guidelines of Proposition M, as presented under Los Angeles Municipal Code section 104.00, et seq.
Plaintiff tacitly acknowledges the superseding of Proposition M for Proposition D based on a position that immunity conveyed to any licensee under Proposition D automatically extended under Proposition M, as long as compliance by the licensed operator was previously established. Defendants in reply offer no counter argument or even acknowledgment of Proposition M, and instead continues to reiterate Proposition D. The court accepts Proposition M as the governing statute given the lack of sufficient clarification, as is the burden of moving parties.
Even under Proposition M, however, Plaintiff acknowledges the single site location restriction. Thus, the argument for statutory illegality remains a consideration. On the other locations identified in the parties agreement, Plaintiff contends the additional sites constituted separate assets in existence prior to the agreement. Furthermore, the cultivators at said second sites obtained separate licenses under Proposition M/LAMC 104, et seq. guidelines. Plaintiff also denies any violation of processor laws.
Plaintiff alternatively maintains reformation and severability prevent any declaration of a void contract. Plaintiff concludes with a suggestion of waiver and estoppel in that Defendants waived said defense or are estopped. The court declines to consider the severability, waiver and estoppel arguments, in that the said counter arguments constitute new argument beyond the scope of the framed issues from the pleadings and as presented in the motion. Furthermore, as discussed below, the court finds the merits of the argument do not warrant further consideration into these potential issues at the time of the instant motion.
More perfunctory, Defendants rely on an assumption that the agreement itself assumes multiple, licensed required operations under a single license without actually providing a copy of the entire agreement, or actually particularly addressing the meaning and context of the terms of the agreement. The court cites to fundamental contract interpretation rules.
A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful. (Civ. Code, § 1636.) The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity. (Civ. Code, § 1638.) When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible; subject, however, to the other provisions of this Title. (Civ. Code, § 1639.) The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other. (Civ. Code, § 1641.) A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties. (Civ. Code, § 1643.) The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed. (Civ. Code, § 1644.) However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract. (Civ. Code, § 1648.) Repugnancy in a contract must be reconciled, if possible, by such an interpretation as will give some effect to the repugnant clauses, subordinate to the general intent and purpose of the whole contract. (Civ. Code, § 1652.) Stipulations which are necessary to make a contract reasonable, or conformable to usage, are implied, in respect to matters concerning which the contract manifests no contrary intention. (Civ. Code, § 1655.) (
Siligo v. Castellucci
(1994) 21 Cal.App.4th 873, 880881.)
A contract term should not be construed to render some of its provisions meaningless or irrelevant. (
Estate of Petersen
(1994) 28 Cal.App.4th 1742, 1754 (footnote 4).) A well-settled maxim states the general rule that ambiguities in a form contract are resolved against the drafter. (Citations.) But that is a general rule; it does not operate to the exclusion of all other rules of contract interpretation. It is used when none of the canons of construction succeed in dispelling the uncertainty. (
Oceanside 84, Ltd. v. Fidelity Federal Bank
(1997) 56 Cal.App.4th 1441, 1448.)
The plain language of the agreement only references a relocation of the Dispensary to Melrose, with future operations contemplated at two additional locations on Remmet Ave. and Eton Ave. for 120 lights + extraction and 80 lights
+ Dispensary operations. Defendants cite pages and pages of deposition testimony regarding operations without actually addressing the parties understanding of the execution of the terms of the agreement, such as reliance on a single license (under Proposition D), intent to obtain additional licenses, or other forms of business operations (and potential, required growth licenses). [Hode Decl., Ex. 3: Deposition of Ronald Glantz.] One witness in fact even admits to an uncertainty as to business operations for dispensary operations, but also references a separate cultivation operation for the Remmet facility without any necessity of a dispensary license. [Hode Decl., Ex. 4: Deposition of Michael Sapir.]
The court finds no support for improper intended illegal operation of a second dispensary under a single license. At the core of the agreement regarding the Remmet facility, the unchallenged testimony from Sapir regarding the lack of any need for a BTRC license for a non-dispensary operation in and of itself undermines any argument for said license violation. As for Eton, Defendants reference testimony from Sapir regarding operations, and undisputed material fact number seven (7) in the separate statement directly cites to the Sapir deposition 71:3-15, but no such pages are incorporated into the actual Hodge Declaration. Even relying on the purported copied portions of the deposition transcript incorporated into the points and authorities, however, it only appears Eton was for cultivation. There is no indication of any distribution requirement or licensing requirements. [See
Declaration of Michael Sapir.]
Thus, given the intended relocation of the single dispensary from Topanga to Melrose under the Proposition M license requirement, Defendants fail to establish any actual violation of the statute for purposes of the subject motion. Defendants anticipated this potential, and alternatively argue that said cultivation operations violate Cali
fornia Health and Safety Code section 11379(a).
The statute states in relevant part:
Except as otherwise provided ...
every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport any controlled substance ... unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment... (Health & Saf. Code, § 11379.)
Defendants cite to language regarding extraction activities, but the plain language of the statute appears to address transpiration and distribution rather than extraction or other forms of cannabis processing activity. The correct section is
Cali
fornia Health and Safety Code section 11379.6, subdivision (a):
Except as otherwise provided by law, every person who manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance ... shall be punished by imprisonment ... and by a fine not exceeding fifty thousand dollars ($50,000).
(Health & Saf. Code, § 11379.6.)
Defendants again cite back to unattached deposition testimony from Sapir. [Undisputed Material Fact 15, Sapir Depo, 251.2-22.] The court considers the represented testimony from the points and authorities, whereby Sapir purportedly testified to extraction operations at an unspecified location. Under this assumption, Defendants conclude said extraction operation constituted an illegal activity, thereby again voiding the agreement.
The broad scope of the terms of the agreement renders some validity to the argument as to the partnership agreement for a potential illegal extraction operation constituting a void term by statute. Plaintiff acknowledges the meth lab penalty statute identified as
Cali
fornia Health and Safety Code section 11379.6, but maintains an exemption to the statute exists for operations utilizing non-flammable carbon dioxide extraction processes. [Sapir Decl.] (See Health & Saf. Code, § 11362.3, subd. (a)(3) [
Volatile
solvent means
a solvent that is or produces a flammable gas or vapor that, when present in the air in sufficient quantities, will create explosive or ignitable mixtures
].)
Defendants in reply maintain the exemption was not applicable as the relied upon at the time were not in existence. Thus, the violation occurred at the time of formation. Defendants state the new regulations were adopted in 2018, and the contract was in fact formed prior to 2018.
[L]egislative enactments are generally presumed to operate prospectively and not retroactively unless the Legislature expresses a different intention (
Evangelatos v. Superior Court
(1988) 44 Cal.3d 1188, 1208.) A distinction arises however when a statutory change merely clarifies, rather than changes, existing law. A change that clarifies existing law properly applies to all transactions predating its enactment, where if an action substantially changes the legal consequences of past actions or upsets expectations based in prior law, the proactive presumption applies.
(
Carter v. California Dept. of Veterans Affairs
(2006) 38 Cal.4th 914, 922.)
The conclusive argument in reply regarding a prospective application of the statute without address of potential clarification for non meth lab related activities renders the argument incomplete. The court again declines to make the argument for Defendants. For purposes of the subject motion, the court therefore finds no illegal conduct based on the operation of a carbon dioxide based extraction facility also presents no basis for the determination of an illegal extraction operation thereby voiding the partnership agreement in regards to said operations.
Finally, given the claimed wrongful conduct by Defendants in transferring the license in violation of the agreement, Defendants fail to dispel a potential in pari delicto challenge to the application of the defense of
malum
prohibitum. In other words, the court declines to find the illegal contract provision applicable in favor of parties summonsed to the court due to their own allegedly wrongful conduct.
The court therefore finds triable issues of material fact arising from the parties partnership agreement based on the lack of any evidence of any actual statutory violation under the operative regulation as passed Proposition M and reflected in Los Angeles Municipal Code 104, et seq., California Health and Safety Code section 11397.6, subdivision (a). To the extent Defendants depend on said argument for relief against all claims, and the court cannot accord on any of the presented argument, the motion for summary judgement is DENIED in its entirety.
Trial remains set for August 12, 2024.
Moving Defendants to give notice to all parties.
Ruling
Maria Castilo vs. Fairfield Investor 1, LLC, a limited liability company et al
Jul 10, 2024 |
CU23-03783
CU23-03783
Plaintiff’s Motion to be Relieved as Counsel
TENTATIVE RULING
The Parties are to appear. Plaintiff’s Counsel is to update the Court on whether each of
the Plaintiffs have been provided notice of the hearing date on July 12, 2024 for
Defendant’s Motions to Compel Discovery. If notice has been provided, Plaintiffs’
Counsel is to submit proof to the Court. (The Court notes that in Plaintiffs Counsel’s
declaration in support of motion the be relieved, Plaintiffs were only provided notice of
the Case Management Conference date of June 26, 2024.)
Ruling
THE WINDMILL CO. INC. VS FAYEK SEDRAK, ET AL.
Jul 09, 2024 |
21NWCV00400
Case Number:
21NWCV00400
Hearing Date:
July 9, 2024
Dept:
C
The Windmill Co. Inc. vs. Fayek Sedrak, et al.
Case No.: 21NWCV00400
Hearing Date: July 9, 2024
#1
Tentative Ruling
I.
Defendant O&C Hillsides Motion for Sanctions is MOOT.
II.
Defendant Sedraks Motin for Sanctions is DENIED.
Plaintiff to give notice.
Background
On June 21, 2021, Plaintiff, The Windmill Co., Inc., (Plaintiff) filed an action against Defendants Fayez Sedrak (Sedrak) and O&C Hillside Resources Management Co. (O&C Hillside), alleging Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, and Declaratory Relief. In a First Amended Complaint filed on February 6, 2023 (FAC) Plaintiff alleged that on January 3, 2020, Plaintiff entered into a Sale of Business agreement with O&C Hillside to purchase the business known as ARCO AM PM 6545 located at 13550 Beach Blvd, La Mirada, CA, for $1,590,000.00. The parties opened an Escrow at Ace Escrow where they each signed mutual escrow instructions and Plaintiff deposited $30,000 into Escrow. (Id., ¶¶ 8-9; Benge Decl. in support of MSJ, Exhibit 1.) Escrow was to close in 90 days. (Benge Decl. in support of MSJ, Exhibit 2.)
The original escrow for the purchase of the Arco AM/PM was signed on January 3, 2020. The original purchase price was $1,590,000.00. (Benge Decl. in support of MSJ ¶¶ 3-4; Exhibits 1-2.) However, during the first escrow period several problems arose, including the necessity by Tesoro (the franchisor) to elect not to exercise their right of first refusal, the Landlords unwillingness to sign the assignment and assumption of ground lease, and problems with a Hydrogen facility. (Sedrak Decl. in Support of MSJ ¶¶ 9, 14, 24; Benge Decl. in support of MSJ ¶¶ 10, 17.) During this period, Plaintiff obtained a loan approval note dated October 1, 2020, for $1,110,000.00. (Mashney Decl. in Opposition of MSJ, Exhibit 9.) For those reasons an amended escrow agreement was signed on January 21, 2021. Those instructions stated that escrow was to close within ninety days. (Benge Decl. in Support of MSJ, Exhibit 3.) The amended agreement called for a promissory note for $150,000.00 with an interest rate of 0% per annum for eight years. In addition, the Escrow Amendment changed the purchase price to $1,940,000.00. (Benge Decl. in Support of MSJ, Exhibit 3.)
During this time, Plaintiff did not deposit funds into escrow as required by the amended escrow agreement or obtain a loan. However, on March 22, 2021, Defendant Sedrak emailed an Ace Escrow account for an agent named Debbie to cancel escrow. (Mashney Decl. in Opposition of MSJ, Ex. 16.) This cancellation occurred 30 days prior to the close of 90-day window. On May 25, 2021, Plaintiff sent a demand for specific performance as to all Defendants, which went unanswered. (Mashney Decl. in Opposition of MSJ, Exhibit 17.) On June 21, 2021, Plaintiff, the Windmill Co., Inc., filed an action against Fayez Sedrak and O&C Hillside Resources Management Co., alleging Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, and Declaratory Relief. (See Complaint.) On August 1, 2021, Defendants emailed a Notice of Default and Second Demand and Notice to Perform Escrow, which gave only five days to deposit the funds. (Mashney Decl. in Opposition of MSJ, Exhibit 18.) On August 4, 2021, Plaintiff sent the second demand for specific performance. (Mashney Decl. in Opposition of MSJ, Exhibit 20.)
On October 7, 2021, Plaintiff obtained a second loan approval note for $1,940,000.00. (Mashney Decl. in Opposition of MSJ, Exhibit 21.) Plaintiff claims that Defendant O&C Hillside did not sign a 4506T form that Defendant claims is necessary for the loan to be processed.
On January 8, 2024, Defendants filed the two instant Motions for Sanctions based on CCP § 128.5 and 128.7.
Discussion
Code of Civil Procedure section 128.5, subdivision (a), provides that [a] trial court may order a party, the partys attorney, or both, to pay the reasonable expenses, including attorneys fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.
Frivolous refers to an action that is totally and complete without merit or for the sole purpose of harassing an opposing party. (Code Civ. Proc., § 128.5, subd. (b)(2).) Whether an action is frivolous is governed by an objective standard; a suit indisputably has no merit only where any reasonable attorney would agree that the action is totally and completely without merit. (
Finnie v. Town of Tiburon
(1988) 199 Cal.App.3d 1, 12, quotation marks omitted.) There must also be a showing of subjective bad faith on the part of the attorney or party to be sanctioned. (
Campbell v. Cal-Gard Surety Services, Inc.
(1998) 62 Cal.App.4th 563, 574 (
Campbell
).)
Section 128.7 states that [b]y presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. (Code of Civ. Proc., § 128.7, subds. (b)(1)-(4).)
Defendant O&C Hillside
Defendant O&C Hillside concedes that the Courts finding of the presence of a material issue of fact precludes sanctions under sections 128.5 and 128.7. As a result, the Motion for Sanctions filed by O&C Hillside has become moot. (Reply in Support of Sanctions, filed on May 15, 2024, p. 1:22-24.)
Accordingly, the Motion for Sanctions filed by Defendant O&C Hillside is MOOT.
Defendant Sedrak
Sedrak contends that P
laintiff and its Counsel have knowingly maintained an action which does not exist against Sedrak, and which has no basis in fact or law.
The Court disagrees.
In Opposition to
Sedraks motion for summary judgment, Plaintiff presented evidence from Sedraks deposition that he is everything at O&C Hillside, he holds all corporate titles, and makes all the major decisions. (1/29/24 Order Granting Sedraks Motion for Summary Judgment.)
The Court ruled in favor of Sedrak because Plaintiff failed to produce evidence of fraudulent behavior, commingling of funds, or any other conduct that establishes alter ego liability.
However, failure to produce evidence does not mean such evidence does not exist.
At the hearing, Plaintiff requested a continuance because O&C Hillside had not provided financial documents that could establish commingling.
The Court denied the request because it was untimely, not because evidence of commingling did not exist.
Under these circumstances, the Court cannot determine that Plaintiff maintained its lawsuit against Sedrak in bad faith.
Sedrak contends that a reasonable investigation would have revealed the absence of any cause of action for violation of the Covenant of Good Faith and Fair Dealing and the non-existence of a Declaratory Relief claim. Sedrak further maintains that the Breach of Contract claim is objectively frivolous because Plaintiff had no loan commitment, signed an escrow on January 21, 2021, waiving all prior claims of any default, and it failed to perform the Escrow Contract within 90 days as provided for in the Escrow.
As to the second cause of action for Violation of the Covenant of Good Faith and Fair Dealing, the Court finds that this cause of action was not alleged in bad faith because Plaintiff presented evidence in Opposition to the Motion for Summary Judgment that, among other things, Sedrak emailed Ace Escrow to cancel escrow 30 days prior to the end of the 90-day escrow period closing. (Opposition to MSJ, Mashney Decl., Ex. 16.)
The Court found that Plaintiff had raised a triable issue of material fact as to whether this prevented Plaintiff from satisfying its obligations. (1/29/24 Order denying O&C Hillsides Motion for Summary Adjudication of the second cause of action.)
As to the third cause of action for Declaratory Relief, the Court denied the motion for summary adjudication, reasoning that it had denied relief as to the breach of contract cause of action and if, after a trial, the court decides to uphold the agreement and order specific performance, there will be a future relationship between the parties. Since an actual controversy has been established, declaratory relief would be required to preserve the rights and obligations of both parties.
(1/29/24 Order denying O&C Hillsides Motion for Summary Adjudication of the first and third causes of action.)
Accordingly, Defendant Sedraks Motion for Sanctions under CCP §§ 128.5 and 128.7 is DENIED.
Ruling
JAI SHRI RAM HOSPITALITY GROUP OF CHICO, LLC V. GREEN WORLD
Jul 10, 2024 |
22CV03057
22CV03057 JAI SHRI RAM HOSPITALITY GROUP OF CHICO, LLC V. GREEN WORLD
HUB ET AL
EVENT: Plaintiff’s Motion to Compel Defendant Green World Hub’s Discovery Responses
and for Monetary Sanctions
The Proof of Service shows that the Motion was served electronically on June 20, 2024,
13 Court days prior to the noticed hearing date. Pursuant to Code of Civil Procedure
§1005(b) and 1010.6(a)(3)(B), 5 additional Court days’ notice is required. Notice is
therefore insufficient, and the Motion is continued to July 30, 2024 at 9:00 a.m. to allow
for proper notice.
Preview
Filing # 180333826 E-Filed 08/23/2023 12:50:12 PM IN THE CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA ZASKIA MERCADO, CASE NO: 2019-CA-001939 ON Plaintiff, vs. CHEDDAR'S CASUAL CAFE, INC., Defendant. / MOTION TO COMPEL DEPOSITION OF DEFENDANT’S CORPORATE REPRESENTATIVE Plaintiff, ZASKIA MERCADO, by and through her undersigned counsel, files her Motion to Compel the Deposition of Defendant’s Corporate Representative and as grounds thereof states as Pursuant to Florida Rule of Civil Procedure 1.310, Plaintiffis seeking to take the deposition of the corporate representative for Cheddar’s casual Café, Inc., and in support thereof states as follows: 1 This is a claim for personal injuries against the Defendant, Cheddar’s Casual Café, Inc., as the result of a slip and fall on June 2, 2017 wherein the Plaintiff, ZASKIA MERCADO, was injured. 2 Plaintiffs counsel has made a good faith attempt to set the deposition of Defendant Cheddar Casual Café, Inc.’s corporate representative and provided the areas of inquiry. (Exhibit “A”) 3 Counsel for Defendant has objected to Plaintiff's Proposed Notice of Taking Deposition of Defendant’s Corporate Representative and filed a Motion for Protective Order. (Exhibit B) 4 Defendant Cheddar Casual Café Inc., cites the Court Order dated August 18, 2021 ( Exhibit C) as the basis for their objections. 5 On August 18, 2021, the Court ordered that the Corporate Representative Deposition in this case as well as the Corporate Representative Deposition for this case styled Piedrahita, Zulayv. Cheddar's Casual Café, Inc., (Case No. 19-CA-01012-ON venued in Osceola County) were to be consolidated and to take place on the same date. 6 Pursuant to the August 18, 2021 Court’s Order, it was agreed that the consolidated deposition of the corporate representative for both cases was scheduled to take place on October 19, 2022. 7 The deposition of Joseph Brooks, the Corporate Representative of Defendant Cheddar Casual Café, Inc. did indeed take place on October 19, 2022, however, was suspended by Plaintiff's counsel due to the fact that defendant’s counsel failed to allow the corporate representative to answer any questions on topics delineated in Exhibit A of the Deposition Notice dated October 18, 2022. (Exhibit D) 8 Counsel for Defendant Cheddars Casual Café, Inc., Melissa Woodward, Esq., objected to the line of questioning at the deposition of corporate representative Joseph Brooks because, she argued, the Order date June 13, 2022 sustained her objections as to Duces Tecum no. 20, 22, 26, 27 and 28, item listed on Exhibit B of the Deposition Notice date October 18, 2022 (Exhibit E). Ms. Woodward repeatedly directed the witness not to answer any of my questions regarding prior incidents as delineated in Exhibit A. 9 However, the Orders dated August 18, 2021 and June 13, 2022 make no reference to Exhibit A of the Deposition Notice dated October 18, 2022 and as such, Ms. Woodward erroneously directed the corporate representative not to answer. 10. Plaintiff respectfully requests that this Honorable Court issue an Order Compelling the Deposition of the Defendant’s Corporate representative. WHEREFORE, Plaintiff, ZASKIA MERCADO, respectfully moves this Honorable Court for an Order compelling Defendant to coordinate the requested deposition within ten (10) days of the Order granting Plaintiff's Motion to Compel and any other remedies the Court find necessary. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 23, 2023, I electronically filed the foregoing with the Clerk of the Courts by using the Florida Courts eFiling Portal which will send a notice of electronic filing to the following: Kurt M. Spengler, Esq. and Melissa T. Woodward, Esq., Wicker Smith O'Hara McCoy & Ford, P.A., 390 N. Orange Ave., Suite 1000, Orlando, FL 32801, via email at ORLcrtpleadings@wickersmith.com. /s/ Manuel Stefan, Esq. Manuel “Manny” Stefan, Esq. Florida Bar No.: 0103389 MORGAN & MORGAN, P. 4495 South Semoran Blvd. Orlando, FL 32822 Telephone No.: (407) 452-6982 Facsimile No.: (407) 572-0124 Primary email: MStefan@forthepeople.com Secondary email: cvictor@forthepeople.com Attorney for Plaintiff Christine Victor x7233 From Christine Victor x7233 Sent: Wednesday, August 16, 2023 9:37 AM To: Ahiramar Moreno x5907; PNorris@wickersmith.com; 'MWoodward@wickersmith.com’ ' Cc: Manuel Stefan x7208; Karina Ortiz Muniz x30447 Subject: RE: 2nd request Mercado, Zaskia v. Cheddar's Casual Café, Inc. (92358-5) Attachments: P's Notice of Taking Deposition for corporate representative_ (002).docx Attached please find the areas of inquiry Christine Victor Litigation Paralegal P: (407) 572-0137 F: (407) 572-0112 A: 198 Broadway, Kissimmee, FL 34741 MORGAN & MORGAN FOR THE PEOPLE.COM PRACTICE AREAS | LOCATIONS | ATTORNEYS | VERDICT MAGAZINE A referral is the best compliment. If you know anyone that needs our help, please have them call our office 24/7. From: Ahiramar Moreno x5907 Sent: Wednesday, August 16, 2023 9:26 AM To: PNorris@wickersmith.com; 'MWoodward@wickersmith.com' Ce: Christine Victor x7233 ; Manuel Stefan x7208 ; Karina Ortiz Muniz x30447 Subject: 2nd request Mercado, Zaskia v. Cheddar's Casual Café, Inc. (92358-5) Good Morning, We would like to set the corporate representative deposition Please send open dates. Thanks Ahiramar Moreno Legal Assistant P: (407) 533-6974 F: (407) 452-1631 A: 4495 S Semoran Blvd, Orlando, FL 32822 MORGAN & MORGAN FOR THE PEOPLE.COM PRACTICE AREAS | LOCATIONS | ATTORNEYS | VERDICT MAGAZINE A referral is the best compliment. If you know anyone that needs our help, please have them call our office 24, IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO: 2019-CA-001939-AN ZASKIA MERCADO, Plaintiff, vs. CHEDDAR'S CASUAL CAFE, INC., Defendant. / PLAINTIFF’S NOTICE OF DEPOSITION DUCES TECUM PLEASE TAKE NOTICE that Plaintiff, ZASKIA MERCADO by and through the undersigned attorneys will take the following Deposition: LAN 7 OAD 8 1D) ODT Ohi a iRoter.Wu tens T/B/D T/B/D VIA ZOOM (Information to be provided) Milestone Reporting (407) 423-9900 Topic: Zaskia Mercado v. Cheddar's Casual Cafe, Inc. * *Please advise, no less than seventy-two (72) hours prior to the above scheduled deposition, if an interpreter is required. upon oral examination before Milestone Reporting, Court Reporters, or a Notary Public in and for the State of Florida at Large, or some other officer duly authorized by law to take depositions and videotaped by Milestone Reporting for the purposes of discovery, for use at trial, or both of the foregoing, or for such other purposes as permitted under the applicable and governing rules. Deponent is to bring: 1. Driver’s license. 2. A true and correct copy of any and all written inspection, maintenance procedures or policies in place on the date of the subject accident, at Defendant's premises. 3. A true and correct copy of any and all safety manuals or videos, inspection manuals or videos or training manuals or videos that any employee who was working on the date of the subject accident, with responsibilities for inspecting the premises for dangerous Filing # 180154586 E-Filed 08/21/2023 04:29:25 PM vevuo-y IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA ZASKIA MERCADO, CIRCUIT CIVIL DIVISION Plaintiff, CASE NO. 2019-CA-001939-ON vs. CHEDDAR'S CASUAL CAFE, INC., Defendant. / DEFENDANT’S OBJECTIONS TO PLAINTIFF’S PROPOSED AUGUST 16, 2023 NOTICE OF TAKING DEPOSITION OF DEFENDANT’S CORPORATE REPRESENTATIVE AND MOTION FOR PROTECTIVE ORDER Defendant, CHEDDAR'S CASUAL CAFE, INC, by and through the undersigned attorneys, and pursuant to Florida Rules of Civil Procedure 1.280, 1.330, and 1.350, hereby files its Objections to and Motion for Protective Order in Response to Plaintiff's Notice of Taking Proposed August 16, 2023 Deposition Topic and Duces Tecum of Defendant's Corporate Representative, and states as follows: 1 This is a premises liability lawsuit arising from an incident that occurred on June 2, 2017, at the Cheddar’s Casual Café located at 875 W. Osceola Parkway, Kissimmee, FL 34741, attached hereto as Exhibit A is Plaintiff's Complaint. 2 On August 18, 2021, the Court ordered that the Corporate Representative Deposition in this case as well as the Corporate Representative Deposition for this case styled Piedrahita, Zulayv. Cheddar's Casual Café, Inc., (Case No. 19-CA-01012-ON venued in Osceola County) were to be consolidated and to take place on the same date. Attached hereto as Exhibit B is a true and accurate copy of the August 18, 2021 Order. 3 Pursuant to the August 18, 2021 Court’s Order, it was agreed that the consolidated deposition of the corporate representative for both cases was scheduled to take place on October 19, 2022; however, forty minutes into the deposition, Plaintiff's counsel unilaterally suspended the deposition and refrained from going forward with any of the questions as it related to either the CASE NO. 2019-CA-001939-ON myriad of deposition topics set forth in either the Notice of Taking Deposition for the Corporate Representative in the Mercado and/or Piedrahita case. Attached hereto as Exhibit C is the October 19, 2022 Deposition Transcript for Defendant's Corporate representative. UNDEFINED AND UNSPECIFIED DEPOSITION TOPIC 4 Plaintiff's counsel now attempts to request the deposition of the corporate representative (even after he suspended the October 19, 2022 Deposition) without identifying any delineated and specific deposition topic(s). Instead, the proposed deposition topic requests that the proposed corporate representative designee have a knowledge of the following wide reaching and sweeping deposition topic of this case. See below. ey Naat 13) Fe) Motey-ile)\ i T/B/D TIBID VIA ZOOM (Information to be provided) Milestone Reportin (407) 423-9900 Topic: Zaskia Mercado v. Cheddar's Casual Cafe, Inc. 5 The proposed deposition topic as it relates to an 2017 incident filed in 2020 is. overly broad, unduly burdensome, vague, ambiguous and seeks documentation/information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, especially since it is neither limited in scope nor time. Defendant further objects to this Request, as phrased, it may seek documentation/information that was created and prepared in anticipation of litigation and are therefore protected from disclosure by the attorney-client and work product doctrine. 6. Furthermore, Defendant takes issue with the request to depose Defendant's corporate representative a second time especially since it was Plaintiffs counsel that suspended oe CASE NO. 2019-CA-001939-ON the deposition after only 40 minutes and elected not to continue the deposition without asking any questions on any of the 26 deposition topics outlined in Plaintiff's October 18, 2022 Notice of Taking Deposition of the Corporate Representative and Duces Tecum for either the Mercado or Piedrahita cases, attached hereto as Exhibit D. PROPOSED DUCES TECUM NO. 5 IS DUPLICATIVE OF A DUCES TECUM_NO. 22 WHICH WAS IS THE SUBJECT OF THE JUNE 13, 2022 AGREED ORDER 7. Defendant also takes issue with Plaintiff's proposed Duces Tecum No. 5 which seeks “Defendant's file pertaining to any and all prior incidents involving customer slip and falls at, near, or on the path/corridor to the bathroom at the subject store for the three year period of time immediately preceding the subject incident. This same duces tecum request was previously resolved by this Court as memorialized in the Court’s June 13, 2022 executed Agreed Order attached hereto as Exhibit E, where the Court sustained our objection and granted Defendant's Motion for Protective Order. 8 In accordance with the Court’s June 13, 2022 Agreed Order, Defendant's Objections to Duces Tecum No. 22, which sought “[a] true and correct copy of any and all written complaints or documents showing claims or complaints made as to employees and/or customers falling or slipping on substances on Defendant's premises within the last three (3) years in a manner substantially similar to that alleged in the Complaint” was sustained and Defendant's Motion for Protective Order was granted with respect to this duces tecum. 9 Plaintiff's counsel now seeking to ignore the Court's June 13, 2022 Order by attempting to request the same duces tecum in its August 16, 2023 proposed duces tecum. As this same issue was already subject of the Court's Agreed Order, dated June 13, 2022, Plaintiff should be estopped from circumventing the prior ruling and Agreed Order should remain in effect. -3- Filing # 159465605 E-Filed 10/18/2022 04:15:17 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO: 2019-CA-001939 ZASKIA MERCADO, Plaintiff, vs. CHEDDAR'S CASUAL CAFE, INC., Defendant. / PLAINTIFF’S NOTICE OF DEPOSITION DUCES TECUM PLEASE TAKE NOTICE that Plaintiff, ZASKIA MERCADO, by and through the undersigned attorneys will take the following Deposition: LDA Wr WI 1b) tO 3 Olen. i Oe Noe ae October Corporate VIA ZOOM Milestone Reporting: 19, 2022 Representa EST 11:00 tive Time: Oct 19, 2022 11:00 AM Eastern Time (US and Canada) AM (Produced Join Zoom Meeting b: https://usO6web.zoom.us/j/82652276139?pwd=NFA2WUJtUUdOc25F Counsel) ZOZoMjZQa0RxUT09 Meeting ID: 826 5227 6139 Passcode: 133984 One tap mobile +13092053325,,82652276139# US +13126266799,,82652276139# US (Chicago) Dial by your location +1 309 205 3325 US +1 312 626 6799 US (Chicago) +1 646 931 3860 US +1 929 205 6099 US (New York) +1 301 715 8592 US (Washington DC) +1 346 248 7799 US (Houston) +1 386 347 5053 US +1 564 217 2000 US | Exhibit D +1 669 444 9171 US +1 669 900 6833 US (San Jose) +1 719 359 4580 US +1 253 215 8782 US (Tacoma) Meeting ID: 826 5227 6139 Find your local number: https://us06web.zoom.us/u/keEcrOBLWr *Please advise, no less than seventy-two (72) hours prior to the above scheduled deposition, if an interpreter is required. upon oral examination before Milestone Reporting, Court Reporters, or a Notary Public in and for the State of Florida at Large, or some other officer duly authorized by law to take depositions and videotaped by Milestone Reporting for the purposes of discovery, for use at trial, or both of the foregoing, or for such other purposes as permitted under the applicable and governing rules. You are to have with you at the time of the deposition, all documents and tangible things listed on the attached Exhibit “B,” pursuant to Rules 1.350 and 1.410(c), Florida Rules of Civil Procedure. The oral examination will continue from day to day until completed. YOU ARE REQUESTED TO PROVIDE TO THE UNDERSIGNED, AT LEAST SEVEN (7) BUSINESS DAYS PRIOR TO THE TIME OF THE DEPOSITION, ALL DOCUMENTS AND TANGIBLE THINGS LISTED ON THE ATTACHED EXHIBIT "B". Any documents or tangible things responsive to this request which, nonetheless, are not produced by reason of a claim of privilege work product or for any other reason shall be identified in writing by (1) date; (2) author; (3) recipient; (4) general subject matter; (5) identity of person or persons to whom the contents of the document have already been revealed; (6) the identity of the person or entity now in possession or control of the document or tangible thing; and (7) the basis upon which it is being withheld. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 18, 2022, I electronically filed the foregoing with the Clerk of Court by using the Florida Court e-Filing Portal. I further certify that Pursuant to Rule 2.516(b)(1) I forwarded the foregoing this same day via Email to: Kurt M. Spengler, Esq. and Melissa T. Woodward, Esq., Wicker Smith O'Hara McCoy & Ford, P.A., 390 N. Orange Ave., Suite 1000, Orlando, FL 32801, via email at ORLcrtpleadings@wickersmith.com. /s/ Manuel Stefan, Esq. Manuel “Manny” Stefan, Esq. Florida Bar No.: 0103389 MORGAN & MORGAN, P.A. 4495 South Semoran Blvd. Orlando, FL 32822 Telephone No.: (407) 452-6982 Facsimile No.: (407) 572-0124 Primary email: MStefan@forthepeople.com Secondary email: CVictor@ForThePeople.com Attorney for Plaintiff DEFINITIONS AND INSTRUCTIONS Unless the context indicates otherwise, the following definitions apply to each category of documents and tangible things listed below and are incorporated by reference into each specific request for documents and tangible things: The word "DOCUMENT" shall mean all materials within the scope of Rule 1.350(a), including but not limited to, all writings and recordings, (including originals and all nonidentical copies, whether different from the original by reason of any notation made on such copies or otherwise) emails and attachments, correspondence, memoranda, reports, notes, diaries, statements, (written or electronically recorded) summaries, inter-office and intra-office communications, notations of any sort of conversations; and graphic or electronic representations of any kind including without limitation, photographs, charts, microfiche, microfilm, video tape, DVD, DVR, recordings, motion pictures, plans, drawings, blueprints and surveys. A The words "SUBJECT INCIDENT," "SUBJECT ACCIDENT," “INCIDENT” and "ACCIDENT," shall be deemed to mean the incident alleged in the Plaintiff's Complaint on the date and location as alleged in Plaintiff's Complaint. B. The word "STATEMENT" shall be deemed to mean any oral, written or electronically recorded description, recitation, version or explanation of the SUBJECT INCIDENT, given by any person at any time whatsoever, pertaining to the SUBJECT INCIDENT. C. The word "PLAINTIFF" shall mean Zaskia Mercado. D. Any request for production of documents or tangible things shall be deemed to require production of each and every such thing executed, created, prepared, received or in effect at any time to the present, or during any other indicated time period. E. Whenever appropriate, the conjunctive ‘and" should be interpreted in the disjunctive to include the term "and vice versa. F. Whenever appropriate, the singular form of a word should be interpreted in the plural and vice versa. G. Any documents or tangible things responsive to this request which, nonetheless, are not produced by reason of a claim of privilege work product or for any other reason shall be identified in writing by (1) date; (2) author; (3) recipient; (4) general subject matter; (5) identity of person or persons to whom the contents of the document have already been revealed, (6) the identity of the person or entity now in possession or control of the document or tangible thing; (7) the basis upon which it is being withheld. EXHIBIT "A" Defendant, CHEDDAR’S CASUAL CAFE, INC.’s Corporate Representative will need consent to testify on its behalf about the following areas of inquiry: 1. The name of the person/entity that possessed/owned/controlled the premises as alleged in Plaintiff's Complaint on the date of the incident alleged in the Complaint. 2. The condition of the flooring at the time and location of the incident when Plaintiff was injured. 3. Any and all facts leading up to, concerning, or surrounding any substances or objects on the floor of the subject premises, specifically as identified by the Plaintiff at her deposition, including the substance which is the subject of this action. 4. Any and all facts/information related to inspections of the flooring where the incident occurred for twelve (12) hours prior to the subject incident. 5. Any and all facts/information related to inspections of the flooring where the incident occurred for twelve (12) hours after to the subject incident. 6. Any and all facts/information related to what, if any, caution cones or warning signs were present at the time and location of the subject incident. 7. The name of the person/contractor/entity that was responsible for inspecting the subject premises as alleged in Plaintiff's Complaint for any defects and/or dangerous conditions at the time of the incident described in the Complaint. 8. The name of the person/contractor/entity that was responsible for floor of the subject premises as alleged in Plaintiff's Complaint at the time of the incident described in the Complaint. 9. The name of the person/contractor/entity that was responsible for cleaning the floor of the subject premises as alleged in Plaintiffs Complaint at the time of the incident described in the Complaint. 10. The job responsibilities for employees who had responsibilities for maintenance, cleaning, and inspection of the floor and working at the premises on the date of the incident described in the Complaint. 11. The facts and circumstances surrounding the incident described in the Complaint. 12. Defendant’s Answers to Plaintiff's Interrogatories. 13. The Defendant’s position and opinion as to how the incident described in the Complaint occurred. 14. The factual basis for all affirmative defenses asserted in the Defendant’s Answer to the Plaintiff's Complaint. 15. The identity of all persons, known by the Defendant, who witnessed and/or has knowledge regarding the incident described in the Plaintiff's Complaint. 5 16. The Defendant’s policies and procedures for training new employees regarding maintenance, cleaning, and inspections in effect at the time of the subject incident. 17. Any and all computer based training provided to employees/agents in the year preceding the subject incident that relates to maintenance, cleaning, and inspections in effect at the time of the subject incident. 18. Any and all video based training provided to employees/agents in the year preceding the subject incident that relates to maintenance, cleaning, and inspections in effect at the time of the subject incident. 19. Any and all written materials provided to employees/agents in the year preceding the subject incident that relates to maintenance, cleaning, and inspections in effect at the time of the subject incident. 20. The Defendant’s policies and procedures, written or otherwise, that relates to maintenance, cleaning, and inspections in effect at the time of the subject incident. 21. Any and all written materials provided to employees in the year preceding the subject incident that relates to employee duties, policies and procedures that relates to maintenance, cleaning, and inspections in effect at the time of the subject incident. 22. Facts related to any individual falling or slipping in Defendant’s premises within the three (3) years prior to the present matter in a manner substantially similar to that alleged in the Complaint. 23. How often there had been a transitory foreign substance on the floor of the subject premises within the three (3) years prior to the present matter. 24. Knowledge about any and all policies of insurance and excess policies of insurance that cover this incident. 25. Knowledge as to policies and procedures of employee conduct, proper grooming, and dress code while working in the premises. 26. The existence of items and areas identified below in the Exhibit “B” section of this Notice, and if said items do not exists, the steps taken to make that determination. EXHIBIT "B" Defendant, CHEDDAR’S CASUAL CAFE, INC.’S, Corporate Representative Shall Bring These Items To The Deposition Pursuant to Fla. R. Civ. P. 1.350 and 1.410(c): 1. All statements made by any witnesses to the subject accident at the subject premises as alleged in Plaintiff's Complaint. 2. All statements made by the Plaintiff pertaining to or concerning the subject matter. 3. All photographs of Plaintiff depicting injuries received in the subject incident. 4. All photographs of the incident scene and surrounding areas. 5. All photographs of the dangerous condition as alleged in Plaintiff's Complaint. 6. All surveillance video/pictures of Plaintiff taken during or following the subject incident. 7. All written documents received by Defendant prior to or on the date of this incident relating to or discussing the condition which Plaintiff alleges to be a dangerous condition in Plaintiff's Complaint. 8. All surveillance/security/CCTV video footage of the subject incident and of the walkway in which Plaintiff slipped and fell in during the 4 hour period of time immediately preceding the subject incident and immediately following the subject incident. 9. A copy of any and all insurance agreements, insurance policies or agreements of any kind of nature under which any person or company carrying on an insurance business may be liable to satisfy part of all of a judgment that may be entered in this action or to indemnify or reimburse any payments made to satisfy any such judgment or settlement, including but not limited to a certified copy of the declarations sheet as to each such policy. 10. A copy of any incident/accident/witness report or other documents done in the ordinary course of business containing information about the incident alleged in the Complaint, completed by you, or your agents, representatives, or employees surrounding the subject accident. 11. Any and all inspection or check-off sheets or other documents showing who performed inspections, what kind of inspections were performed, the times of the inspections or other information about the inspections that might have been done on the date of the subject accident, as well as the five (5) days before that date in the area where the Plaintiff fell. 12. Any and all documents relating to any inspections that may have been done on the date of the subject accident, the five (5) days before that date and the five (5) days after that date on Defendant's premises. 13. Time sheets, clock cards or any other documents showing the hours and time worked by any employees working on the date of the subject accident, with responsibilities for inspecting the premises for dangerous conditions, cleaning up dangerous conditions or maintaining the premises. 14. Inspection sheets and/or and other documents for inspections that were used on the date of the subject accident, or that are now used by employees at Defendant's premises, for inspections. 15. A true and correct copy of any contracts or agreement with any entity used by Defendant with any responsibilities for inspecting the subject premises for dangerous conditions or for training your employees about such. 16. A true and correct copy of any and all written inspection, maintenance procedures or policies in place on the date of the subject accident, at Defendant's premises. 17. A true and correct copy of any and all safety manuals or videos, inspection manuals or videos or training manuals or videos that any employee who was working on the date of the subject accident, with responsibilities for inspecting the premises for dangerous conditions, cleaning up dangerous conditions or maintaining the premises may have received from Defendant. 18. All Defendant's _ policies and/or procedures, manuals or documents regarding: a) Inspection of the premises by employees or other individuals; b) Discovery of any dangerous condition on Defendant’s premises by employees; c) Correcting of any dangerous conditions on Defendant’s premises by employees; and d) Reporting or documenting of accidents on Defendant’s premises. 19. A true and correct copy of any and all documents provided to the employees of the Defendant who were on duty on the date of the subject accident, explaining maintenance, cleaning, inspection, and safety precautions at Defendant's premises. 20. A true and correct copy of any and all written complaints or documents showing claims or complaints made as to employees and/or customers falling or slipping on substances on Defendant's premises within the last two (2) years in a manner substantially similar to that alleged in the Complaint. 21. Meeting minutes for any safety, committee, or other meetings in which the foreign substances on the floor at the subject premises was discussed for three years before the subject incident. 22. All correspondence (e-mail, text messages, etc.) regarding the foreign letters, substances and/or potential safety concerns the foreign substances on the floor of the subject premises. 23. List of other slip or falls on the flooring of the subject premises for the three (3) year period prior to the subject incident. 24. All personnel files for any employees with knowledge of the subject claim or facts related to the claim and/or incident investigation/reporting and/or store security system. This request is not intended to disclose any confidential and/or private information and should exclude any and all social security numbers, payment information, protected health information and 8 personal addresses. This request only asks for all training documentation, disciplinary information, and job applications or resumes contained within the requested personnel files. 25. A layout of all active surveillance/security/CCTV cameras for the subject area within the premises. 26. A true and correct copy of any and all photographs taken of the accident scene. 27. Any and all video images that depict the events alleged in the complaint. 28. Any and all video images of Plaintiff. 29. Any and all video images of the incident. 30. Any and all video images of the scene where the incident occurred for the period of time beginning 60 minutes before the incident and ending 60 minutes after the incident. CASE NO. 2019-CA-001939-ON WHEREFORE, Defendant, CHEDDAR'S CASUAL CAFE, INC, respectfully requests that this Court enter a Protective Order with regards to the foregoing and any other relief the Court deems just and proper. WE HEREBY CERTIFY that a copy hereof has been electronically served via Florida ePortal to: Manuel Stefan, Esquire, mstefan@forthepeople.com, cvictor@forthepeople.com; on this 21% day of August, 2023. /s/ Melissa T. Woodward Melissa T. Woodward, Esquire Florida Bar No. 022143 WICKER SMITH O'HARA MCCOY & FORD, P.A. Attorneys for Cheddar's Casual Café, Inc. 390 N. Orange Ave., Suite 1000 Orlando, FL 32801 Phone: (407) 843-3939 Fax: (407) 649-8118 ORLcrtpleadings@wickersmith.com =4= Filing # 91256677 E-Filed 06/18/2019 11:01:45 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO: ZASKIA MERCADO, Plaintiff, vs. CHEDDAR’S CASUAL CAFE, INC., Defendant. / COMPLAINT COMES NOW Plaintiff, ZASKIA MERCADO, and sues Defendant, CHEDDAR’S CASUAL CAFE, INC., and alleges: ! 1 This is an action for damages that exceeds Fifteen Thousand Dollars ' ($15,000.00), exclusive of interest, costs and attorney’s fees, | 2. Plaintiff is a natural person residing in Osceola County, Florida. 3 At all times material to this action, CHEDDAR’S CASUAL CAFE, Ne is a Foreign Profit corporation licensed to do business and was doing business in Osceola County, Kissimmee, Florida. 4 At all times material hereto, Defendant was in possession and control of that business Cheddar’s Scratch Kitchen located at 875 West Osceola Parkway, Osceola County, Kissimmee, Florida, said business being that of a restaurant, open to the general public, inci ling the Plaintiff herein. EXHIBIT A {| 5 At all times material hereto, Defendant was in charge of the maintenance of the | subject property referred to in paragraph #4, 6. At all times martial hereto, Defendant had possession and control of the premises t located at 875 West Osceola Parkway, Osceola County, Kissimmee, Florida. | 7. On or about June 2, 2017, Plaintiff visited Defendant’s premises located at 875 West Osceola Parkway, Osceola County, Kissimmee, Florida. 8 On or about June 2, 2017, Plaintiff was a business invitee lawfully present upon the premises of the Defendant at the restaurant referred to in paragraph #4. 9 At said time and place, Plaintiff was on her way to the restroom when she slipped ona liquid/greasy like substance at or near the restrooms, causing the Plaintiff to suffer injuries. 10. At all times material hereto, Defendant negligently allowed a dangerous condition to exist on their said premises. This dangerous condition consisted of a greasy/liquid, like substance on the floor approaching the restrooms, or near the restrooms, which caused the Plaintiff to slip and fall, sustaining injuries. | 1h. At all times material hereto, Defendant owed Plaintiff a non-delegable chity to maintain the premises in a reasonably safe condition and to correct any dangerous condition which it either knew of or should have known by the use of reasonable care to avoid injuries to its customers, including the Plaintiff. |t 12. Further, Defendant owed Plaintiff a non-delegable duty to warn of any latent conditions about which it had, or should have had, knowledge greater than Plaintiff and which created an unreasonable risk of harm to Plaintiff. ' | 13. Also, Defendarit owed Plaintiff a non-delegable duty to remedy the dang condition or otherwise remove it and/or eliminate it. 1 14. Importantly, Defendant owed Plaintiff a duty not to create any dangerois or ' hazardous conditions. { | 15. Lastly, Defendant owed Plaintiff a duty to inspect or adequately inset for dangerous conditions, specifically the slippery/greasy floors at or near the restrooms which are used | daily by customers, including the Plaintiff. 16. The Defendant failed to act reasonably under all circumstances. I 17, At said time and place, Defendant negligently breached the aforementioned duties 1 owed to Plaintiff. ! | 18. At all times material to the subject incident, Defendant had actual knowlege f the dangerous condition created by the liquid/greasy like substance on the floor on the way, at, of near the restrooms; and failed to take proper action to remedy this condition. 19. At all times material to the subject incident, Defendant had constructive know ledge of the dangerous condition created by the liquid/greasy like substance on the floors on the way, at, or near the restrooms, because the dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; and/or the 1 condition occurred with regularity and was therefore foreseeable, { 20. Asa direct and proximate result of the negligence of the Defendant, the Plaintiff was injured in and about her body and extremities; suffered pain there from, resulting in pain and suffering; disability; disfigurement; permanent and significant scarring; mental anguish; incurred medical expenses for the treatment of said injuries; incurred pain and suffering of both a Phiysical and mental nature; and suffered physical handicap; incurred loss of ability to lead and eniey a normal life; aggravation or activation of previously existing or latent conditions; incurred fobs of wages and a loss of wage earning capacity, all of which are either permanent or continuing in nature | and the Plaintiff will sustain said losses and impairment in the future. l WHEREFORE, the Plaintiff, ZASKIA MERCADO, sues the Defendant, CHEDDAR’. CASUAL CAFE, INC., for damages and demands judgment in excess of Fifteen Thousand Dollars ($15,000.00), plus interest and costs, and demands trial by jury of all issues so triable RESPECTFULLY submitted this 18" day of June, 2019 Ni /s/ Manuel Stefan, Esq. Manuel “Manay” Stefan, Esq. Florida Bar No.: 0103389 MORGAN & MORGAN, P.A. 198 Broadway Avenue Kissimmee, FL 34741 Telephone No.: (407) 452-6982 | 1 Facsimile No.: (407) 572-0124 Primary email: MStefan@forthepeople.com Secondary email: EDiaz@forthepeople.com Attorney for Plaintiff Filing # 132932583 E-Filed 08/18/2021 01:51:35 PM '92358-5/mtw/12465972 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA ZASKIA MERCADO, Plaintiff, CASE NO. 19CA1939-ON vs. CHEDDAR'S CASUAL CAFE, INC., Defendant. / ORDER GRANTING IN PART DEFENDANT'S MOTION TO CONSOLIDATE FOR PURPOSES OF DISCOVERY THIS MATTER came on for consideration/hearing on August 17, 2021, on the above motion, and the Court having reviewed the pleadings, having heard argument of counsel, and being duly advised in the premises, states it is hereby: ORDERED AND ADJUDGED as follows: Defendant's Motion to Consolidate Plaintiffs Request to Depose Defendant's Corporate Representative in the above referenced case and in the case styled Zulay Piedrahita v. Cheddars Casual Café, Case No. 19-CA-01012 ON, also currently venued in Osceola County, is GRANTED IN PART. The deposition of Defendant's designated Corporate Representative for both referenced lawsuits shall take place on the same day. Plaintiffis only permitted to ask Defendant's Corporate Representative questions regarding his background, i.e. education, pre-Darden job experience and current Darden employment experience, including but not limited to, training, policies and protocols only once. Duplicative questions concerning these topics shall not be permitted in the second corporate representative deposition to take place the same date. DONE AND ORDERED at Kissimmee, Osceola County, Florida, this day of 2021. KRebut (Gan CBb/1B/202/ Honorable Robert J. Egan COPIES FURNISHED TO: Manuel Stefan, Esquire Kurt M. Spengler, Esquire Morgan & Morgan, P.A. Melissa T. Woodward, Esquire Attorneys for Plaintiff Attorneys for Defendant 198 Broadway Avenue WICKER SMITH O