Joint Stipulation Regarding Notice And Filing Of Summary Judgment/Adjudication Motions; Order

TENTATIVE RULINGS

 

DEPT C-13

 

Judge John C. Gastelum

The court will hear oral argument on all matters at the time noticed for the hearing, unless the Court has stated that the matter is off calendar. Do not call the department to verify if you should appear or not. Please read below for the information.  If you would prefer to submit to the Court’s tentative without oral argument, advise all counsel first and then moving party is to telephone the clerk at (657)622-5213. If the moving party has submitted the matter and there are no appearances by any party at the hearing, the tentative ruling will be the final ruling. Rulings are normally posted on the Internet by 4:30 p.m. on the day before the hearing.  Generally, motions will not be continued or taken off calendar after the tentative has been posted. The moving party shall give notice of the ruling.

 

April 26, 2016

2:00 P.M.

 

 

#

Case Name

Tentative

 

 

 

 

1

Aliso Viejo Investments, Inc. vs Specialized Loan Services

Demurrer to First Amended Complaint (FAC)  

 

Tentative Ruling:   Defendant Law Offices of Les Zieve’s (“LOLZ”) Demurrer is OVERRULED as follows.

 

As to Plaintiff’s 2nd COA (negligence), it is not barred as a matter of law by lack of duty. Residential Capital v. Cal-Western Reconveyance Corp. (2003) 108 Cal.App.4th 807 declined to recognize a negligence cause of action by the unsuccessful high bidder at a mandatorily postponed trustee sale against a trustee before the trustee’s deed was issued reasoning that to do so “would be grafting a tort remedy onto a comprehensive statutory scheme in the absence of a compelling justification for doing so. (§§ 2924-2924k.)” (Id. at 827.) Residential Capital did not issue a blanket holding that there can never be a duty by a trustee to a bidder at a trustee sale. Here, unlike in Residential Capital, the FAC alleges LOLZ executed and conveyed the Trustee’s Deed Upon Sale to Plaintiff and that said deed was recorded in the official records of the County of Orange. (See FAC, ¶¶ 12 and 13.)

 

And, “mere existence of a comprehensive statutory scheme does not necessarily eliminate all further remedies without the consideration of the relevant policy concerns. Indeed, California courts have repeatedly allowed parties to pursue additional remedies for misconduct arising out of a nonjudicial foreclosure sale when not inconsistent with the policies behind the statutes.” (California Golf, LLC v. Cooper (2008) 163 Cal.App.4th 1053, 1070.)  To allow a remedy in this case would not undermine the policy behind Civil Code sections 2924-2924k, one of which is “to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser”. (Id.) Plaintiff alleges it is a BFP since it purchased the property without notice of the pending court action (see FAC, ¶12) and the Trustee’s Deed Upon Sale was recorded “before the Masons issued or posted the undertaking required for a preliminary injunction to issue.” (See FAC, ¶ 14.)

 

The cause of action is also not barred by the trustee’s privilege. The trustee’s privilege can be defeated by a showing of malice. (See Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 340.)

The FAC alleges LOLZ “negligently and maliciously breached its duty to Plaintiff”. (See FAC, ¶ 26.)

 

RFJN:  The Court GRANTS Defendant Law Offices of Les Zieve’s Request for Judicial Notice of Exhibits 1 through 11 pursuant to Evidence Code sections 452(d) and (h).

 

Moving Party is to give notice.

 

 

           

 

 


 

 

2

Barragan vs Robert’s Waste & Recycling

Motion to Compel Production   

 

Ruling:   Off Calendar – no hearing will be held.   Case reassigned to C11.

 

 

3

Comerica Bank vs Bermuda Triangle Ventures, Inc.

(1) Application for Contribution (2) Motion for Attorney Fees

                                             

Tentative Ruling:   (1) Application for Contribution filed by Gordon Runyon is DENIED, as the Application failed to demonstrate is was timely filed, as required by Code of Civil Procedure section 883.

 

At best, the evidence attached to the Application demonstrates the Judgment balance was $0.00 as of September 9, 2015, which was more than 30-days prior to the filing of this Application on December 29, 2016.  (See Exhibit “1” of Application.)

 

Moreover, while Defendant attempts to correct this error through additional argument and evidence, submitted with his Reply: “It is elementary that points raised for the first time in a reply brief are not considered by the court.” (Magic Kitchen LLC v. Good Things Intern. Ltd. (2007) 153 Cal.App.4th 1144, 1161.)

 

Further, “[t]he general rule of motion practice…is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.)  Similarly, where Declarations have been filed with a Reply, “[s]uch declarations…should not have addressed the substantive issues in the first instance, but only filled gaps in the evidence created by the…opposition.” (Id. at 1538.)

 

Based on the above, the Court declines to consider Defendant’s new argument and evidence, submitted with his Replies.

(2) Motion for Attorney Fees is DENIED, as Gordon Runyon is not the “prevailing party” on any contract, entitled to fees under Civil Code section 1717.  Additionally, the Motion is DENIED, as the moving party failed to properly notice a Motion under Code of Civil Procedure section 724.050 or Code of Civil Procedure section 724.080 and failed to demonstrate that either provision applies, here.

                                                                     

Plaintiff’s Request for Judicial Notice is GRANTED.

 

Defendant’s first Request for Judicial Notice is GRANTED, with the limitation that the Court notices, only, that the Declaration was filed and included certain statements.  The Court does not take notice of the truth of the statements therein.

 

Defendant’s second Request for Judicial Notice is DENIED, as untimely.

 

 

 

 

4

Davis vs Hotwire Media Group, Inc.

(1) Motion to Compel Answers to Form Irogs (2) Motion to Compel Answers to Special Irogs (3) Motion to Compel Further Responses to Form Irogs (4) Motion to Compel Further Responses to Special Irogs (5) Motion to Compel Production (6) Motion to Compel Production

                                                             

Tentative Ruling:   Defendants Hotwire Media Group, Inc. and Dominic Nolan’s Motion to Compel Plaintiff Ershad Estahbanati to Provide Further Responses to Defendants’ First Set of General Form Interrogatories, First Set of Employment Form Interrogatories, and First Set of Special Interrogatories:

The motion to compel a further response, without objections, to General Form Interrogatories Nos. 2.5, 2.6, 8.4, and 12.1 is GRANTED.  Although the opposition papers state that supplemental responses have been served and the issue is therefore MOOT, there is no evidence showing that supplemental responses have been served.  In addition, the responses provided are untimely and any objections have therefore been waived. (Code Civ. Proc., § 2030.290(a).)  Plaintiff is compelled to provide a response as to all subpart questions and to provide a further response that complies with Code.  The response provided must be as complete and straightforward as the information reasonably available to the responding party permits. (Code Civ. Proc., § 2030.200(a),(b).)

 

The motion to compel a further response, without objections, to General Form Interrogatory No. 8.7 is DENIED.  The response provided sufficiently complies with Code.

 

The motion to compel a further response, without objections, to Employment Form Interrogatories Nos. 200.1 and 200.2 is GRANTED.  The response provided fails to comply with Code.  In addition, the objection based on relevancy has been waived. (See supra.)  Further, the determination of “relevancy” for discovery purposes is whether the information sought might reasonably lead to the discovery of other evidence that would be admissible. (Code Civ. Proc., § 2017.010.)  Here, the discovery request is “relevant” for discovery purposes.  Plaintiff is compelled to provide a further response that complies with Code.

The motion to compel a further response, without objections, to Employment Form Interrogatories No. 210.2 is DENIED.  The analysis is the same as that set forth above for General Form Interrogatory No. 8.7.

 

The motion to compel a further response, without objections, to Special Form Interrogatories Nos. 1, 4, and 7 is GRANTED.  Although the opposition papers state that supplemental responses have been served and the issue is therefore MOOT, there is no evidence showing that supplemental responses have been served.  Plaintiff should be compelled to provide a response as to all subpart questions, and provide a further response that complies with Code.  The response provided must be as complete and straightforward as the information reasonably available to the responding party permits. (Code Civ. Proc., § 2030.200(a),(b).) 

 

The motion to compel a further response, without objections, to Special Form Interrogatories Nos. 3 and 6 is GRANTED.  In the opposition papers, Plaintiff states that the documents are in Defendant Hotwire Media Group, Inc.’s possession and therefore the response provided sufficiently complies with Code.  The response technically does not comply with Code. (Code Civ. Proc., § 2030.220(a),(b) [Each answer must be as complete and straightforward as the information reasonably available to the responding party permits.  If an interrogatory cannot be answered completely, it shall be answered to the extent possible.]; Code Civ. Proc., § 2030.220(c) [“If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state….”].)

 

The motion to compel a further response, without objections, to Special Form Interrogatories No. 44 is DENIED.  The response provided sufficiently complies with Code.

 

The motion to compel a further response, without objections, to Special Form Interrogatories No. 50 is DENIED.  The analysis the same as that set forth above for General Form Interrogatory No. 8.7.

 

Sanctions are issued against Plaintiff Estahbanati in the amount of $3,210.00. 

 

Further responses are due within 5-days, and sanctions are due within 30-days.

 

Prevailing party is to give notice.

 

Defendants Hotwire Media Group, Inc. and Dominic Nolan’s Motion to Compel Plaintiff Amanda Davis to Provide Further Responses to Defendants’ First Set of General Form Interrogatories, First Set of Employment Form Interrogatories, and First Set of Special Interrogatories:

 

The motion to compel a further response, without objections, to General Form Interrogatories Nos. 2.5, 2.6, 8.4, and 12.1 is GRANTED.  The analysis is the same as that set forth above for Defendants’ Motion to Compel Plaintiff Estahbanati to Provide Further Responses for the same interrogatories. 

 

The motion to compel a further response, without objections, to General Form Interrogatories Nos. 8.5, 8.6, 8.7 is GRANTED.  Although the opposition papers state that supplemental responses have been served and the issue is therefore MOOT, there is no evidence showing that supplemental responses have been served.  Plaintiff is compelled to provide a further response that complies with Code.  The response provided must be as complete and straightforward as the information reasonably available to the responding party permits. (Code Civ. Proc., § 2030.200(a),(b).) 

 

The motion to compel a further response, without objections, to General Form Interrogatories No 9.1 is GRANTED.  Plaintiff has failed to sufficiently answer subparts (c) and (d).  Plaintiff is compelled to provide a response as to all subpart questions and to provide a further response that complies with Code.  The response provided must be as complete and straightforward as the information reasonably available to the responding party permits. (Code Civ. Proc., § 2030.200(a),(b).)  In addition, the responding party has the duty to make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations. (Code Civ. Proc., § 2030.220(c).)

 

The motion to compel a further response, without objections, to Employment Form Interrogatories Nos. 200.1 and 200.2 is GRANTED. The analysis is the same as that set forth above for Defendants’ Motion to Compel Plaintiff Estahbanati to Provide Further Responses for the same interrogatories. 

 

The motion to compel a further response, without objections, to Employment Form Interrogatories Nos. 207.2, 210.2, 210.6 is GRANTED.  Although the opposition papers state that supplemental responses have been served and the issue is therefore MOOT, there is no evidence showing that supplemental responses have been served.  Plaintiff is compelled to provide a further response that complies with Code.  The response provided must be as complete and straightforward as the information reasonably available to the responding party permits. (Code Civ. Proc., § 2030.200(a),(b).) 

 

The motion to compel a further response, without objections, to Employment Form Interrogatories No. 213.1 is GRANTED.  The analysis is the same as that set forth above for Defendant’s Motion to Compel Plaintiff Davis to Provide a Further Response to General Form Interrogatories No 9.1.

 

The motion to compel a further response, without objections, to Special Form Interrogatories Nos. 1, 4, and 7 is GRANTED.  The analysis is the same as that set forth above for Defendants’ Motion to Compel Plaintiff Estahbanati to Provide Further Responses for the same interrogatories. 

 

The motion to compel a further response, without objections, to Special Form Interrogatories Nos. 3 and 6 is GRANTED.  The analysis is the same as that set forth above for Defendants’ Motion to Compel Plaintiff Estahbanati to Provide Further Responses for the same interrogatories. 

 

The motion to compel a further response, without objections, to Special Form Interrogatories Nos. 63 and 69 is GRANTED.  Although the opposition papers state that supplemental responses have been served and the issue is therefore MOOT, there is no evidence showing that supplemental responses have been served.  Plaintiff is compelled to provide a further response that complies with Code.  The response provided must be as complete and straightforward as the information reasonably available to the responding party permits. (Code Civ. Proc., § 2030.200(a),(b).) 

 

Sanctions are issued against Plaintiff Davis in the amount of $3,210.00. 

 

Further responses are due within 5-days, and sanctions are due within 30-days.

 

Prevailing party is to give notice.

 

Defendants Hotwire Media Group, Inc. and Dominic Nolan’s Motion to Compel Plaintiff Ershad Estahbanati to Provide Further Responses to Defendants’ First Set of Requests for Production of Documents:

 

 

The motion to compel a further response, without objections, to Requests for Production of Documents Nos. 1, 2, 10, 23, 26-29, 33, 43, 87 is MOOT.  Supplemental responses were served. (Decl. of Estahbanati, at ¶ 2 and Exhibit B.)  The court notes, however, that the supplemental responses with respect to nos. 10, 26 and 43 are deficient for the reasons set forth below.

 

The motion to compel a further response, without objections, to Requests for Production of Documents Nos. 3-9, 11-19, 21-22, 24-25, 42, 44, 59, 62, 63, 77, 78, 83, 84, 86, 90 and 93 is GRANTED.  An agreement to comply must state: (1) that the production and inspection demanded will be allowed (in whole or in part); and (2) that the documents or things in the demanded category that are in the responding party’s possession, custody or control will be produced. (Code Civ. Proc., § 2031.220.)  Here, the “agreement to comply” response provided fails to sufficiently comply with Code.

 

The motion to compel a further response, without objections, to Requests for Production of Documents Nos. 76 is GRANTED.  Plaintiff’s response (i.e., “See the Complaint filed in this action”) does not comply with Code.  (Code Civ. Proc., §§ 2031.010, 2031.220.)  

 

Sanctions are issued against Plaintiff Estahbanati in the amount of $3,560.00. 

 

Further responses are due within 5-days, and sanctions are due within 30-days.

 

Prevailing party is to give notice.

 

Defendants Hotwire Media Group, Inc. and Dominic Nolan’s Motion to Compel Plaintiff Amanda Davis to Provide Further Responses to Defendants’ First Set of Requests for Production of Documents:

 

The motion to compel a further response, without objections, to Requests for Production of Documents Nos. 1, 2, 4-6, 14, 16, 18-24, 26-29, 32, 52, 54, 69, 72, 73, 83, 85, 86, 89, 93, 94, 96, 100, and 103 is GRANTED.  An agreement to comply must state: (1) that the production and inspection demanded will be allowed (in whole or in part); and (2) that the documents or things in the demanded category that are in the responding party’s possession, custody or control will be produced. (Code Civ. Proc., § 2031.220.)  Here, the “agreement to comply” response provided fails to sufficiently comply with Code.

 

The motion to compel a further response, without objections, to Requests for Production of Documents No. 53 is GRANTED.  The need for the information sought to determine Plaintiff’s damages appear to outweigh Plaintiff’s privacy interest.  In addition, with respect to the substantive response provided, it fails to comply with Code. (Code Civ. Proc., § 2031.220.)  Plaintiff cannot limit her production from the date of termination through 12-14 because she has not timely objected to this request on the basis that the scope is overbroad. 

 

The motion to compel a further response, without objections, to Requests for Production of Documents Nos. 30, 35-40, 43, 44, and 97 is MOOT.  Supplemental responses were served. (Decl. of Davis, at ¶ 2 and Exhibit B.)  The court notes, however, that the supplemental responses with respect to nos. 35-38, 43-44 and 97 are deficient for the reasons set forth below.

 

Sanctions are issued against Plaintiff Davis in the amount of $3,560.00. 

 

Further responses are due within 5-days, and sanctions are due within 30-days.

 

Prevailing party is to give notice.

 

 

 

5

Extended Stay America vs Bruce

 (1) Demurrer to Cross-Complaint (2) CMC

 

Ruling:   (1-2) Off Calendar – no hearing will be held.  Plaintiff’s unopposed Demurrer to Defendant’s Cross-Complaint, while not styled as a motion for reclassification, raises the issue of whether this case should be reclassified as limited civil.  The Court continues the Demurrer and CMC to 5-24-16, at

2 pm, in Dept. C13, and sets on the same date a hearing on the issue of whether this case should be reclassified as limited civil pursuant to Code of Civil Procedure section 403.040.  (See Walker v. Superior Court (1991) 53 Cal.3d 257.)

 

Briefing on the motion to reclassify the action shall be pursuant to Code of Civil Procedure section 1005.  

 

Plaintiff is to give notice.

 

 

6

Future DB International, Inc. vs City of Irvine


 

Motion to Be Relieved as Counsel of Record

                                                    

Ruling:   Off Calendar – no hearing will be held.

 

 

7

James Haefner, in the Right of and for the Benefit of Northwest Surgical Development Company, Inc. vs Frisk

(1) Motion to Compel Production (2) TSC

 

Tentative Ruling:   Motion to Compel Production is GRANTED in part and DENIED in part.  The Motion is GRANTED, as to Requests Nos. 5, 7-13, 15-17, 19-42 and 48-54.

 

As to the majority of the Requests, Plaintiff objected on the basis the same were burdensome and harassing, as the requests sought to require Plaintiff “to reproduce a document that has already been produced in this case.” 

 

Notably, however, Plaintiff failed to demonstrate the documents were previously produced.  Similarly, Plaintiff did not identify the documents by bates number.  Additionally, prior production is not an appropriate objection, to avoid production at trial.

 

As to Requests Nos. 48 through 54, Plaintiff objected on the basis the requests were irrelevant and constituted an invasion of privacy; however, the Opposition indicates, with respect to Requests Nos. 48 through 54:  “At the time of the request in January 2016, these records were not available.  If they have now been prepared, they will be produced.” (Opposition: 5:13-17.)  Thus, any privacy right appears to have been waived.

 

Last, however, the Motion is DENIED, with respect to Requests Nos. 56 and 57, as Defendant’s general statement of relevancy fails to meet his burden of establishing “good cause” and “materiality of the items to the issues.” (Code Civ. Proc., §1987(c).)

 

 

 


 

 

 

8

MacDonald vs Verni

Demurrer to Answer

 

Ruling:   Off Calendar – no hearing will be held.

 

 

9

Murray Auto Sales Inc vs Barrus

(1) Motion to Be Relieved As Counsel of Record (2) Motion to Be Relieved As Counsel of Record (3) CMC

 

Ruling:   (1-3) Off Calendar – no hearing will be held. 

(1) Gregory E. Robinson’s unopposed Motion to Be Relieved as Counsel of Record for Defendant Alex Barrus is GRANTED. The Motion is unopposed, service is proper, and moving attorney has stated there is a basis for permissive withdrawal under Rules of Professional Conduct, Rule 3-700.  The order will take effect upon filing of proof of service of the order on the client. 

Moving attorney is to give notice.

(2) Gregory E. Robinson’s unopposed Motion to Be Relieved as Counsel of Record for Defendant Mark White is GRANTED. The Motion is unopposed, service is proper, and moving attorney has stated there is a basis for permissive withdrawal under Rules of Professional Conduct, Rule 3-700.  The order will take effect upon filing of proof of service of the order on the client. 

Moving attorney is to give notice.

(3) CMC is continued to 6-8-16, Dept. C13, at 8:45 am. 

 

 

10

Nathan vs Mason

(1) Demurrer to Answer (2) Demurrer to Cross-Complaint

 

Ruling:   Off Calendar as MOOT – no hearing will be held.  Amended pleadings filed. 

 

 

11

National Collegiate Student Loan Trust 2007-1

Claim of Exemption/Wage Garnishment

 

Tentative Ruling:   The debtor’s claim of exemption for “all earnings” is denied.  75 percent of the Debtor’s earnings ($3,072.00) are automatically exempt from garnishment pursuant to Section 706.050 of the Code of Civil Procedure.  The Debtor has failed to meet his burden of showing that the remaining 25 percent of his monthly earnings ($1,024.00) is necessary to support Debtor or his family. (Code Civ. Proc., § 706.051; Code Civ. Proc. § 703.580(b).) 

 

Pursuant to his financial statement, the Debtor and his spouse have combined monthly net income of $5,905.18.  Specifically, Debtor’s net income is $3,885.18 (Debtor’s withholdings total $210.82, not $843.28 as stated on the financial statement) and his spouse receives $2,020.00 in SSDI.  Debtor’s monthly expenses total $4,529.95, which is $1,375.23 less than his combined net income.  In addition, one of the expenses listed by the debtor is a monthly payment to Sallie Mae in the amount of $228.56 owed by “Michael Smallwood,” who is not the debtor or his spouse, so this amount does not appear to be an expense necessary for support of the Debtor or his spouse.  

 

Plaintiff is to give notice.


 

 

 

12

TK Global Partners, LP vs Wilder

(1) Motion for Attorney Fees (2) CMC

 

Tentative Ruling:   Motion for Attorney Fees brought by Defendants David Wilder and Carolyn Wilder is GRANTED, pursuant to Civil Code section 1717, in the amount of $94,938.75.

 

Initially, it appears undisputed a single strategy was the focus of Defendants’ efforts against all claims, namely, the assertion the Agreements were forged.   As this issue is common to claims concerning chargebacks and those concerning other matters, apportionment does not appear to be required. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129.)  Additionally, “[a]pportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney’s time into compensable and noncompensable units.” (Bell v. Vista Unified School Distr. (2000) 82 Cal.App.4th 672, 687.)

 

Further, the Court finds Defendants may recover fees, for the period of time in which they lacked a counsel of record. As the Court in Mix v. Tumanjan Development Corp. (2002) 102 Cal.App.4th 1318 stated: “There is no authority or reason to require a formal association on the record in order for attorney fees to be recoverable.” (Id. at 1325.)

 

The Court, however, reduces the award by $17,922.00, as a significant portion of the billing records reflect work completed for Thanolarp Wilder, an individual who is not a prevailing party in this action, and not entitled to fees.   Notably, many of these references are included within block-billings; however, the Court has discretion to strike the entire entries:  “Trial courts retain discretion to penalize block billing when the practice prevents them from discerning which tasks are compensable and which are not.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1010.)

 

Additionally, Plaintiff is correct in arguing that Defendants’ billing includes numerous references to what appear to be separate actions (i.e. ARC case, bankruptcy case, “Virginia case” and “Rolex case”).  Based on the same, the award is further reduced by $10,744.00.

 

Additionally, given the existence of references to separate actions and individuals, the Court shall reduce the award by an additional $7,647.00, which reflects vague entries.  As asserted by Plaintiff, given that Defendants’ Counsel has included services provided to Thanolarp Wilder and services connected to other litigation, within its billing, a vague entry is impossible to identify.

 

Finally, the Court awards $980.00, in connection with the instant Motion, (See ¶8 of Reinis Declaration), which results in a total award of $94,938.75.

 

Evidentiary Objections:  Plaintiff submits objections to the Declaration of Mitchell Reinis.  The Court SUSTAINS Objection No. 1, as the testimony lacks personal knowledge.   The Court OVERRULES Objections Nos. 2-3, as Counsel appropriately provides testimony concerning the proceedings in this action (although the same is slightly argumentative).  The Court notes, however, that this testimony has no effect on the merits of this Motion.

 

 

 


 

 

 

 

13

Tseng vs State of California

(1) Motion for Summary Judgment and/or SAI (2) Motion for Summary Judgment and/or SAI (3) Joinder (4) CMC

                                                                                 

Ruling:   (1-4) Off Calendar – no hearing will be held.   Continued to 5-10-16, Dept. C13 at 2 pm.  

 

 

14

Kyle vs Genter V

Motion to Appoint Neutral Third Party

 

Tentative Ruling:   Motion for Appointment of a Neutral Third Party  brought by Plaintiffs Bobby Allen Griffith, Brian Kyle and Cindy Kay Atkinson appears MOOT, based on the testimony of Defense Counsel Joseph Schuchert. (See ¶4 of Schuchert Declaration.)

 

To any extent, however, the LLC’s books and records have not been delivered to Mr. Sharestan, assuming proper service, the Court is prepared to order Defendant Gentner to deliver the above, within 10-days of this order.

 

The Court finds that Mr. Sharestan has adequately established he is a neutral third-party. (See ¶3 of Sharestan Declaration.)

 

Additionally, the Court notes Defendant does not dispute that Mr. Sharestan is a neutral third-party.  At most, Defendant asserts that Mr. Sharestan does not want to be the depository for the LLC records; however, the evidence offered in support of this statement constitutes hearsay and, regardless, does not support the position articulated. (See ¶6(a) of Schuchert Declaration.)

 

Last, to any extent Plaintiffs are seeking the appointment of Mr. Sharestan to complete specific tasks, the Motion is DENIED, as the November 25, 2015 Judgment provided only for delivery of the referenced records.