County of Orange
DEPT C14 TENTATIVE RULINGS
The Honorable Richard Oberholzer
for Judge Nico Dourbetas
Civil Court Reporters: The Court does not provide court reporters for law and motion hearings. Please see the Court’s website for rules and procedures for court reporters obtained by the Parties.
Tentative Rulings: The Court will endeavor to post tentative rulings on the Court’s website by 12 p.m. on Thursday. Do NOT call the Department for a tentative ruling if none is posted. The Court will NOT entertain a request for continuance or the filing of further documents once a tentative ruling has been posted.
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Non-Appearances: If no one appears for the hearing and the Court has not been notified that all parties submit on the tentative ruling, the Court shall determine whether the matter is taken off calendar or whether the tentative ruling shall become the final ruling.
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Date: May 20, 2022
Associated Third Party Administrators, Inc. vs. Payroll Tax Specialists, LLC
1. Motion to Strike (Off Calendar at request of
2. Defendant PTS and Tin Vo’s (collectively, defendants) Motion to Strike or Tax Costs
The following amounts are taxed from the 1/21/22 memorandum of costs filed by Richard K. Diamond, duly appointed chapter 7 trustee of the bankruptcy estate of plaintiff Associated Third Party Administrators, Inc. (hereinafter, ATPA):
$2,344.95 – This amount reflects the reduction in the expert fees from the claimed $13,159.08 down to $10,814.13, as agreed to by ATPA (see Hall Decl. ¶ 6, Ex. 5; Opp. at p. 2, fn. 1).
$105.35 – This amount reflects the reduction of what appear to be excessive e-filing costs totaling $175 ($25 each) claimed on 7/16/19, 10/9/19, 10/25/19, 3/5/21, 4/26/21, 5/12/21 and 7/9/21, down to the more reasonable amount $9.95 each.
$1,535.25 – This amount reflects those costs claimed for certain unspecified “filing fees and costs” on 8/6/19, 9/17/19, 4/24/20, 3/17/21 (x2), 3/23/21 (x2), 3/30/21 (x2), 4/15/21, 4/19/21 (x2), 4/20/21, 5/4/21,
7/12/21, and 7/29/21, of which the record supports only $9.95 (for the e-filing of a document on 3/30/21), and the remainder of which do not appear proper on their face, and which ATPA has failed to substantiate. To be clear, defendants have challenged the subject costs in the total amount of $1,545.20 (see Hall Decl. ¶ 10), and the court is granting the motion with respect to these costs in the amount of $1,535.25, and allowing the recovery of $9.95.
The grand total of these unrecoverable amounts comes out to $3,985.55
Tentative Ruling: ATPA’s memorandum of costs is hereby taxed in the amount of $3,985.55. All other costs claimed by ATPA are allowed.
3. ATPA’s Motion to Strike or Tax Costs:
Defendant/cross-complainant Tin Vo is the “prevailing party” in this action with respect to plaintiff/cross-defendant ATPA. (Code Civ. Proc., § 1032, subd. (a)(4) [“prevailing party” includes “a defendant where neither plaintiff nor defendant obtains any relief”]; McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn. (1991) 231 Cal.App.3d 1450, 1454 [“when neither the plaintiff nor the defendant who has filed a cross-complaint prevails, the defendant is the prevailing party entitled to costs”]; accord, Cussler v. Crusader Entertainment, LLC (2012) 212 Cal.App.4th 356, 371-372.)
Vo is therefore entitled to his costs as a matter of right. (See Code Civ. Proc., § 1032, subd. (b); Charton v. Harkey (2016) 247 Cal.App.4th 730, 739-742 [court lacks discretion to deny prevailing party status to a prevailing defendant within the meaning of section 1032 as a matter of law]; v. Crusader Entertainment, LLC, supra, 212 Cal.App.4th at p. 372 [same].)
“Costs are allowable if incurred, whether or not paid.” (Code Civ. Proc., § 1033.5, subd. (c)(1).)
Further, where, as here, all of the costs claimed in Vo’s memorandum of costs appear to consist of only his portion of the costs incurred in defending this action, and also appear proper on their face, the verified memorandum of costs is prima facie evidence of their propriety and the burden is on the party seeking to tax costs to show they were not reasonable or necessary. (See ROA Nos. 573, 575 [costs memo. summary and worksheet]; see also ROA No. 496; Code Civ. Proc., § 1033.5, subds. (a)(1), (a)(8), (c); Ladas v. California State Auto. Ass’n. (1993) 19 Cal.App.4th 761, 774-776; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266 [mere statements in points and authorities and declaration of counsel insufficient to rebut prima facie showing].) ATPA has entirely failed to demonstrate the impropriety of any of Vo’s costs, and has therefore failed to meet this burden.
Tentative Ruling: ATPA’s motion to strike/tax costs is DENIED.
Defendants to give notice of all of the above.
Shi vs. Li
Motion to Strike or Tax Costs
Tentative Ruling: Plaintiff Yuhong Shi’s motion to strike and/or tax costs sought by defendants Shunze Li, Tiantian Li, Xiaoping Li, Yilin Li, Ke Wu, and Xue Gong is DENIED as MOOT. There is nothing in the court’s records indicating that any Memorandum of Costs has been filed by these defendants. Plaintiff to give notice.
Tran vs. Abuzaid
Motion to Set Aside/Vacate Default and Judgment
A motion for relief under CCP § 473(b) must be filed within six months of the entry of default. Defendant’s default was entered on 11/05/21 and a motion had to be filed by 05/05/22. This motion was filed on 02/14/22 and it is timely. A motion for relief under CCP 473.5 must be filed within the shorter of: (i) two years after entry of default judgment; or (ii) 180 days after service of notice of entry of judgment. The motion was filed within six months of entry of default and notice of entry of judgment, so the motion for relief under section 473.5 is timely.
Relief Under CCP § 473(b). CCP § 473(b) provides, in pertinent part: “[Discretionary relief provision.] “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. … No affidavit or declaration of merits shall be required of the moving party.”
The law favors judgments on the merits. Thus, on a motion for relief from default, “doubts must be resolved in favor of relief, with an order denying relief scrutinized [on appeal] more carefully than an order granting it.” (See Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.)
If a motion to vacate default is not based upon an attorney affidavit of fault, relief under CCP § 473(b) is discretionary. CCP § 473(b); see Lorenz v. Commercial Accept. Ins. Co. (1995) 40 Cal.App.4th 981, 989. Thus, the Defendant must show that entry of default against him was the result of mistake, inadvertence, surprise, or excusable neglect.
Mistake: A mistake may be one of fact or law, but in either case, it must be material. An attorney's mistake of law is charged to the client and is not a ground for relief when the “mistake” is “simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law.” Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206. Here, the facts in defendant’s declaration do not establish mistake.
Excusable Neglect: Excusable neglect simply requires the moving party to show a reasonable excuse for the default. Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1141-42. In this case, defendant establishes that he had relocated to his family home in Saudi Arabia to quarantine for the COVID 19 pandemic rather than do so alone in the US between 03/14/20 and 05/21/21. (Abuzaid Dec. ¶¶ 7 & 11.) Defendant relocated to a different college (Cal. State Long Beach) upon his return to the US. (Id ¶ 7.) Plaintiff was not aware of the existence of the litigation until he was contacted by defense counsel retained by his insurance carrier on 01/24/22. (Id. ¶ 12.) This appears to be a reasonable excuse for the entry of default and default judgment against defendant. Plaintiff argues that because they dealt extensively with defendant’s insurance carrier, that he somehow had constructive knowledge of the litigation. This argument is belied by the fact that the insurance carrier had to retain a private investigatory to ascertain defendant’s whereabouts to file this motion.
Surprise: This term refers to “some condition or situation in which a party … is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” Credit Managers Ass'n of Southern Calif. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206. The evidence cited supports a finding that the entry of default and default judgment was the result of surprise.
Relief Under CCP § 473.5: Where service of summons has not resulted in actual notice to a party in time to defend the action, the court is empowered to grant relief from a default or default judgment. CCP § 473.5. This section is designed to provide relief where there has been proper service of summons (e.g., by substitute service or by publication) but defendant nevertheless did not find out about the action in time to defend. Typically, these are cases in which service was made by publication. See Randall v. Randall (1928) 203 C 462, 464-65; Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.
A party challenging service under CCP § 473.5 must show: (1) he received no actual notice of the action in time to appear and defend; (2) a default or default judgment has been entered against him by the court; and (3) the lack of notice was not caused by his/her avoidance of service or inexcusable neglect. CCP § 473.5; Goya v. P.E.R.U. Enterprises (1978) 87 Cal.App.3d 886, 890–91.
Additionally, “Section 473.5 requires that the motion to set aside the default judgment be accompanied by “a copy of the answer, motion, or other pleading proposed to be filed in the action.” Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 861.
Here, Defendant received no actual notice of the action in time to appear and defend. This is established by defendant’s declaration that he was living out of the country between did between 03/14/20 and 05/21/21, and that he was not aware of the action until he was contacted by an agent of his insurance carrier on 01/24/22. (Abuzaid Dec. ¶¶ 7, 11, & 12.)
Plaintiff argues that because they contacted defendant’s insurance carrier before entering default, that defendant cannot claim that he lacked actual knowledge of the action. The problem is that the carrier advised plaintiff’s counsel that they could not accepts service on behalf of the defendant, and the fact that the carrier had to retain a private investigator to determine defendant’s whereabouts.
Lack of actual notice includes the setting where the defendant's attorney received a copy of the summons, but the defendant did not learn of it before expiration of the time to respond. (See Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 191; Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077.) If notice of the litigation given to a party’s legal counsel is insufficient to show “actual knowledge of the action” for purposes of section 473.5, the insurance carrier’s knowledge certainly should not demonstrate “actual knowledge” of the litigation by defendant. Thus, the knowledge of defendant’s insurance carrier is not imputed to defendant.
Defendants’ lack of notice was not caused by his or her avoidance of service or inexcusable neglect.” CCP § 473.5(b).
This is established by defendant’s declaration that his lack of actual notice was not due to his avoidance of service or inexcusable neglect. (Id. ¶ 14.)
Defendant also testified that he first became aware of the action on 01/24/22, and this motion was filed three or so weeks later. This would appear to constitute reasonable diligence, and the opposition fails to address this issue.
Defendant’s evidence establishes grounds for relief under Calif. Code of Civil Procedure, sections 473, subdivision (b) and 473.5. CCP § 473.5(c) allows the court to set aside the default on whatever terms as may be just. Based upon the foregoing, the Defendant has presented adequate evidence as to his right to relief under both CCP §§ 473(b) and 473.5.
Attorney’s Fees. An award of fees and costs is mandatory if relief is based upon an attorney’s declaration of fault. CCP § 473(b). If relief is not based upon an attorney affidavit of fault, the court may impose a penalty not greater than $1,000.00, or grant other relief as appropriate. CCP § 473(c)(1) Requiring counsel to pay a penalty to the State Bar is not appropriate in this case and under these facts. In this case, neither party seems to be at fault. Therefore, an award a $1,000.00 penalty per CCP § 473(c)(1) is appropriate rather than the excessive figure sought by plaintiff.
Tentative Ruling: Defendant Abdullah Abuzaid’s Motion to Vacate Default and Default Judgment is GRANTED. (See Code Civ. Proc. §§ 473, subd. (b) and 473.5.). The court exercises its discretion and awards plaintiff a penalty of $1,000.00 payable by defendant to counsel for plaintiff within thirty days. (See Code Civ. Proc. § 473, subd. (c)(1)(A).) Any further requests for attorney’s fees or costs are denied.
Defendant is to separately file an answer to the complaint in the form attached to the motion to ensure that it is correctly indexed in the court’s electronic filing system.
Defendant is ordered to give notice.
Cook vs. Cook
Motion to Set Aside/Vacate Default and Judgment
Continued to 09/09/2022
Litrinium, Inc. vs. Adas
Plaintiff’s (MP) Motion to Compel Production
On a motion to compel further responses to a document production demand, asking party bears the initial burden of showing “good cause” for production of the requested records. (CCP 2031.310(b)(1).) The “good cause” requirement is met by a showing of relevance to the subject matter and specific facts justifying discovery, unless attorney work-product is asserted, in which case the asking party must show injustice or unfair prejudice if the documents are not disclosed. (Rutter Group, Civil Procedure Before Trial, Sections 8:1495.3 and 8:1495.6.) Once a showing of good cause is met, it is then the responding party’s burden to justify the objections asserted. (Rutter Group, Civil Procedure Before Trial, Section 8:1496, citing Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)
MP’s initial burden of good cause must be supported by admissible evidence, such as declarations. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223-224.) Declarations in support of the good cause requirement “must contain ‘specific facts’ rather than mere conclusions.” (Rutter Group, Civil Procedure Before Trial, Chapter 8H-8, Section 8:1495.7, citing Fireman's Fund Ins. Co. v. Superior Court (1991) 233 Cal.App.3d 1138, 1141.)
The declarations by MP attorneys to authenticate MP’s meet and confer letters, largely address good cause [with the exception of RPD No. 14, further discussed below], pointing out that the requested documents are reasonably calculated to lead to the discovery of admissible evidence regarding MP plaintiff’s claims. (Mayer Decl., Paras. 4 and 7, and Exs. A and C thereto; Katz Decl., Para. 36 and Ex. R thereto.) While the Defendant (RP) argues that MP has not shown good cause, the RP does not dispute that the disputed devices contain relevant documents, but rather takes issue with the extent of access necessary, not the fact of access itself. Thus, except for RPD No. 14, RP’s arguments as to lack of good cause are not persuasive.
RPD Nos. 2, 3, 4:
RPD No. 2 requested “[a] forensic copy of the LITRINIUM COMPUTERS,” which was defined as “all computers that YOU used in connection with YOUR work for LITRINIUM, including without limitation the Dell laptop and the ThinkPad laptop referred to in the July 16, 2021 letter from Jonathan Hersey to Michael Katz dated July 16, 2021.”
RPD No. 3 requested “[a] forensic copy of all STORAGE MEDIA in YOUR possession as of July 2, 2021 on which any documents or information RELATED TO LITRINIUM were stored.” “STORAGE MEDIA” was defined as all storage media used to place, keep and retrieve electronic data, including cloud-based storage services, on which YOU stored any DOCUMENTS any time from July 27, 2018 through July 2, 2021, including without limitation the naser.zip zip file.”
RPD No. 4 requested “A forensic copy of the USB DRIVES.” The “USB DRIVES” were defined as “the following USB drives: (1) the two USB flash drives and microSD memory card referred to in the letter from Jonathan Hersey to Michael Katz dated July 16, 2021, (2) any and all other drives attached to the LITRINIUM COMPUTERS, including, without limitation: (a) a Kingston DataTraveler 3.0 USB device, (b) SDXC USB (c) a SanDisk Ultra USB, (d) a Lexar USB, and (e) SMI USB.”
RP initially responded with objections, then stated: “Adas will produce all Litrinium business records previously identified (with the assistance of digital forensic specialist Geoffrey Brown of Berkley Research Group, LLC) through a diligent and good-faith search of electronic storage devices and cloud storage in Adas’ possession, custody, or control. Adas will also produce a Certification of Identification and Removal of Litrinium, Inc. Business Records, certified by Adas on September 10, 2021. A supplemental response qualified the previous response.
MP has shown good cause, RP has the burden of justifying his objections. (Kirkland v. Superior Court, supra at 98.) RP contends that his response of submitting the information sought to a ‘third party forensic investigator’ is proper because the disputed devices contained both Litrinium and personal information, including personal information subject to privacy rights, attorney-client privilege, and tax returns; RP also contends that his proffered discovery protocols are more appropriate than MP’s unfettered demands. (Opp at 8:8-9:7, 11:24-13:22.)
RP’s arguments fail in the face of his execution of the “Employee Proprietary Information and Inventions Agreement” [EPIIA], which required RP to return company property without alterations, as well as allow access to other devices. (Bajwa Decl., Para. 5 and Ex. B thereto.) RP does not dispute that he executed the EPIIA, or any of its terms. Specifically, Section 5 of the EPIIA provides for the return of property, including the company computer without copying, deleting or altering information. (Ex. A to Bajwa Decl., Section 5)
MP’s employee handbook, which RP reviewed and acknowledged, also contained similar provisions requiring return of company property, as well as notices that company property was not to be used for personal business, that “information created, sent, received, or stored on the company’s electronic resources” is company property, and that employees had no expectation of privacy therein. (Bajwa Decl., Paras. 7-9; Ex. D thereto at pp. 11, 12, 15, 18.)
RP does not dispute that MP provided him a Dell laptop for company use. (Bajwa Decl., Para. 6; Adas Decl. Paras. 18-20.) RP also does not dispute that he did not return the Dell laptop in an unaltered state, as required by Section 5 of the EPIIA; rather, his forensic expert “took full images of the computers, external drives, cloud storage platforms, and email accounts,” “removed … personal information, reset the user accounts, and left in place Litrinium information and installed software.” (Adas Decl., Paras. 26, 27; Brown Decl., Para. Para. 11 [“In order to remove all personal data from the Dell laptop, while keeping the operating system in working order, a new user account was setup on the Dell laptop …[t]he old user profile associated with Adas was wiped clean and the previously identified Litrinium business files were restored from the image back to the new user profile”].) The original, unaltered images were and are maintained by RP’s expert. (Adas Decl., Para. 26; Brown Decl., Para. 7.) RP contends he did so because his “personal and other affairs became substantially intermingled with my Litrinium work Records,” including such personal matters as “investments (like real estate), tax matters, family photos, communications with friends, family, and professional acquaintances, as well as outside legal advice I had sought over time related to my personal or professional matters, including as to my rights with respect to Litrinium.” (Adas Decl., Paras, 18 and 19.) RP similarly contends that he is not required to provide the forensic image demanded by RPD No. 2, due to the fact that they contain private and privileged information. (Opp at 8:8-9:7, 11:24-13:22.)
Since there is no dispute that MP plaintiff owns the Dell laptop, as well as the relevant terms of the EPIIA and employee handbook noted above, RP’s arguments fail. As to privacy, TBG Ins. Servs. Corp. v. Superior Court, supra, is directly on point. There, the employer provided a computer for the employee’s home use, which the employee refused to produce in response to the employer’s discovery request. (Id. at 445-446.) The employee had signed the employer’s “’electronic and telephone equipment policy statement’ in which he agreed, among other things, that he would use the computers ‘for business purposes only and not for personal benefit or non-Company purposes, unless such use [was] expressly approved,” and further consented to have his computer “use monitored by authorized company personnel” on an “as needed” basis, and that his “communications transmitted by computer were not private.” (Id. at 446.) The trial court denied the employer’s motion to compel, in part on privacy grounds. (Id. at 447-448.) The Court of Appeal reversed, finding that “TBG's advance notice to Zieminski (the company's policy statement) gave Zieminski the opportunity to consent to or reject the very thing that he now complains about, and that notice, combined with his written consent to the policy, defeats his claim that he had a reasonable expectation of privacy.” (Id. at 452.) Likewise, here, as RP executed documents acknowledging he was required to return the Dell laptop unaltered, as well as lack of privacy in company property, RP’s privacy argument lacks merit.
As to privilege, the same rationale applies: “[W]hen the electronic means used belongs to the defendant … the defendant has advised the plaintiff that communications using electronic means are not private, may be monitored, and may be used only for business purposes; and … the plaintiff is aware of and agrees to these conditions … communication under these circumstances is not a ‘confidential communication between client and lawyer’ within the meaning of [Evidence Code] section 952 because it is not transmitted ‘by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation (Ibid.).” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1068 [upholding trial court admission of emails between employee and counsel sent using company email account].)
Moreover, as MP points out, the protective order previously entered in this action (ROA 201) includes a clawback provision at Para. 14, allowing a party to request the return of privileged or confidential information upon production of a privilege log; in fact, RP himself required MP to do so regarding some of the documents RP already produced. (Mayer Decl., Paras. 5-13.)
The Dell laptop itself has already been returned, but given its altered status, does not provide sufficient information as to the full extent of documents that were originally on it, or what has been deleted. (Vaughn Decl., Paras. 7-19.) Accordingly, based on the foregoing, the forensic image should be produced instead.
Finally, and for the same reasons, RP can produce the “Storage Media” and “USB drives,” which are specifically limited to storage accounts and devices containing Litrinium material. RP agreed in the EPIIA that he would “provide the Company with a computer-useable copy of all such Confidential Information” contained on external devices or accounts, as well as “to provide the Company access to my system as reasonably requested to verify that the necessary copying and/or deletion is completed.” RP failed to do either. As he contractually agreed that such information was not private regardless of the means of storage, and to provide access to same for MP’s inspection, RP similarly waived his privacy rights in storage media that also contain MP’s information.
Tentative Ruling: The Motion to Compel Production of RPD Nos. 2,3 and 4 is GRANTED.
RPD No. 5:
RPD No. 5 requested: “All DOCUMENTS RELATED TO OTHER COMPANIES from February 22, 2016 through July 2, 2021.” “OTHER COMPANIES” was defined as: “any company, partnership, consultancy or business of any kind, other than INTEL, with which you engaged in any discussion or communication regarding YOUR acting, or potentially acting, as an employee, officer, director, investor, consultant, or service provider to that business, from February 22, 2016 through July 2, 2021. OTHER COMPANIES include, but are not limited to, Palmiye California, Inc., DeepVu, Xcelerium, Inc., and Celestial AI.”
RP responded with objections, then stated: “Subject to the entry of a stipulated protective order, Adas will produce all non-privileged documents in his possession, custody, or control related to any assistance provided by Adas to the following companies through July 2, 2021: (1) Palmiye California, (2) DeepVu, and (3) Xcelerium. Adas has not provided any assistance to Celestial AI.” RP’s supplemental response stated further conditions.
The requested documents are relevant to MP’s claims that RP breached his fiduciary duties to MP by failing to preserve MP’s confidential and proprietary information, and “by diverting his time, resources, and attention from his duties to assist or otherwise take an active role in other companies and startups,” including the specifically identified companies. (MP Separate Statement at pp. 39-42.)
RP’s response improperly limits his response to documents evidencing his “assistance” to three of the identified companies, and disclaiming any assistance to Celestial AI. However, RPD No. 5 is not so limited; thus, RP’s response is evasive and incomplete. (CCP 2031.310(a)(1).)
Nor has RP justified any of his objections. Rather, RP merely restates his objections that RPD No. 5 is “entirely overbroad and unreasonable,” without any explanation, which is insufficient. Further, to the extent that RP argues that any response should be evaluated in light of a CA employee’s right to work (Opp at 13:24-14:4, citing Labor Code 96(k)), RP did not raise this objection in his responses, and it is thus waived. (CCP 2031.300(a).) Even if RP had timely asserted such objection, the requested documents are relevant to MP’s breach of fiduciary duty claims and the objection would fail.
Tentative Ruling: Plaintiff’s Motion to Compel RPD No. 5 is GRANTED.
RPD No. 7:
RPD No. 7 requested: “To the extent not produced in response to Request No. 5, DOCUMENTS evidencing YOUR ownership interests in OTHER COMPANIES at all times from July 1, 2018 to the present.” As noted above, “OTHER COMPANIES” was defined as: “any company, partnership, consultancy or business of any kind, other than INTEL, with which you engaged in any discussion or communication regarding YOUR acting, or potentially acting, as an employee, officer, director, investor, consultant, or service provider to that business, from February 22, 2016 through July 2, 2021. OTHER COMPANIES include, but are not limited to, Palmiye California, Inc., DeepVu, Xcelerium, Inc., and Celestial AI.”
RP’s initial response asserted objections, then stated: “Subject to the entry of a stipulated protective order, Adas will produce documents sufficient to show Adas’ ownership interest in Palmiye California and Xcelerium. Adas has never held an ownership interest in Celestial Al or DeepVu.” RP’s supplemental response provided further conditions.
Again, RP’s response is incomplete and evasive, as RPD No. 7 is not limited to the three specifically identified companies, nor to companies which RP provided “assistance.”
RP argues that the request as phrased would require him to disclose any stocks owned in any company, “even if he has no active role in such company … [i]f Adas owns shares of Microsoft, he must produce that evidence.” (Opp at 14:16-22.) This argument fails, given that the definition of “OTHER COMPANIES” is limited to companies that “engaged in any discussion or communication regarding YOUR acting, or potentially acting, as an employee, officer, director, investor, consultant, or service provider to that business …” This restricted definition excludes mere stock ownership as RP argues.
Tentative Ruling: Plaintiff’s Motion to Compel Production as to RPD No. 7 is GRANTED.
RPD No. 11:
RPD No. 11 requested “[a]ll COMMUNICATIONS with Preet Virk from February 22, 2016 through the present.”
MP contends the requested documents are relevant because RP and Virk are close friends with whom RP may have discussed his other ventures; “Virk previously was the Manager of a business unit at MACOM which competes with Litrinium directly;” and Virk “left MACOM to start his own company,” and the parties may have discussed RP joining Virk’s company. (MP Separate Statement at 47:19-48:26 and at 48:26-49:10.)
RP has not justified any of his objections [which notably do not include privacy]. RP contends that his objections are proper because “no business relationship exists” between RP and Virk or his company, and the request is motivated by personal animosity on the part of MP’s CEO Bajwa. (Opp at 15:14-25.) Even if RP were correct that there is no “business relationship” between RP and Virk or his company, the requested documents are still reasonably calculated to lead to the discovery of admissible evidence on other relevant issues, such as RP’s alleged diversion of business opportunities, and/or RP’s discussion with Virk about other businesses.
Tentative Ruling: Plaintiff’s Motion to Compel Production as to RPD No. 11 is GRANTED.
RPD No. 14:
RPD No. 14 requested: “To the extent not produced in response to prior requests, all DOCUMENTS that RELATE TO any investment or business plans or proposals that YOU considered any time during YOUR employment with LITRINIUM, INC.”
RP’s initial response asserted numerous objections, including relevance and overbreadth, which objections have merit, as discussed below. RP nonetheless responded: “Adas will produce all documents related to any investment or business plans or proposals that Adas corresponded regarding on Litrinium’s behalf that are in Adas’ possession, custody, or control.” RP also provided a supplemental response stating: “Subject to the terms of the Protective Order entered by the Court on February 24, 2022, Adas will produce all non-privileged documents from February 22, 2016 through July 2, 2021 in his possession, custody, or control related to any companies to which Adas provided assistance (distinguished from any company where Adas is primarily involved as in investor, such as a private real estate investment), without limitation including the following companies: (1) Palmiye California, (2) DeepVu, and (3) Xcelerium.”
MP contends this response is insufficient because it is limited to the specified companies, while MP has “confirmed Adas’ involvement in numerous other companies, including, but not limited to, Ocean Front Investments, LLC, City Center Auto Sales Inc., Garage Door Management Inc., Perelma, Inc., Ambeent, Inc., Oros Investments, LLC, MSC CA, LLC, and Celestial AI.” (MP Separate Statement at 50:11-16.) However, RPD No. 14 is not limited to the companies identified in MP’s Separate Statement, nor does MP clarify what “involvement” RP may have had with the companies identified in its Separate Statement. As currently phrased, RPD No. 14 would include any investment at all, not just investments in businesses competing with, or similar to, MP’s business. (Opp at 14:23-26.)
Tentative Ruling: Plaintiff’s Motion to Compel Production as to RPD No. 14 is DENIED.
Sanctions: Defendant’s actions here, particularly regarding the Dell laptop which he had a specific contractual obligation to return unaltered, are questionable at best, and spoliation at worst. On the other hand, it cannot be said that defendant acted without substantial justification in purportedly attempting to preserve privileged and/or private documents and information. Defendant’s attempts to preserve private and privileged documents may be a breach of his contractual obligations, but within the context of civil discovery, his privacy and privilege assertions are substantially justified.
Further, since the motion as to RPD No. 14 is denied, the results are mixed, which supports denying sanctions. (Mattco Valley Forge v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1437 [court’s discretion to deny sanctions upon mixed results].)
Tentative Ruling: MPs’ sanctions request is denied.
Plaintiff to give notice.
Bednar vs. Los Alamitos Racing Association
1. Demurrer to Complaint
1 & 2 are MOOT since First Amended Complaint has been filed.
Daimler Trust vs. Chen
Application/Request for Writ of Possession
Continued to 09/16/2022
Abwicklungsanstalt vs. Rebeil
Demurrer to Complaint
Defendant demurs to the complaint on the grounds that (1) plaintiff “EAA lacks capacity to sue because it is not qualified or authorized to business in California and thus lacks any ability to maintain this lawsuit” (Dem. P&As at p. 4); and (2) “EAA lacks standing to sue because it is not the real party in interest legally entitled to enforce the [underlying] [j]udgment.” (Ibid.) Defendant argues that contrary to the allegations of the complaint, EAA does not in fact have standing to enforce the judgment as evidenced by a number of declarations and other records that were purportedly filed in the underlying action, and that WestLB is the current and only judgment creditor with standing to enforce the judgment. (Id. at pp. 4, 7-9.)
All of these arguments fail in the first instance. As an initial matter, a demurrer only tests the sufficiency of a complaint. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.... The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action [citation].” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905; accord, Satyadi v. West Contra Costa Healthcare District (2014) 232 Cal.App.4th 1022, 1028.)
With respect to defendant’s first contention that EAA lacks the capacity to sue—except in certain situations not applicable here, “a plaintiff's capacity to sue is not an element of a cause of action,” and a plaintiff “need not allege that it is qualified to do business in California” to maintain an action. (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1605.) “An allegation by a plaintiff that it is a corporation is sufficient to show that it has the general capacity to sue.” (Ibid.) Plaintiff has sufficiently alleged so here. (See Compl. ¶ 1 [plaintiff is “incorporated as a public law entity” in Germany, “operating under the Federal Agency for Financial Market Stabilisation” or “FMSA”].) On demurrer, the court must accept this allegation as true. (See Mathews v. Becerra (2019) 8 Cal.5th 756, 768 [on demurrer, the court accepts as true all facts properly pleaded, as well as those reasonable inferred from the pleading]; New Livable California v. Association of Bay Area Governments (2020) 59 Cal.App.5th 709, 714 [same].)
As for defendant’s second contention that EAA lacks standing to sue—the complaint alleges detailed facts that establish EAA’s standing to sue as the real party in interest with respect to the underlying judgment. Specifically, the complaint alleges that EAA owns and holds all rights and interests in the underlying judgment as the assignee of the prior judgment creditor, Portigon AG fka WestLB, and even attaches, inter alia, certified copies of certificates of authorization showing that Portigon AG is indeed WestLB’s successor-in-interest, and a copy of the notarized assignment of the underlying judgment to EAA. (Compl. ¶¶ 1, 9-11, Exs. 6-9; see Pratali v. Gates (1992) 4 Cal.App.4th 632, 637-638 [action on a judgment].) As noted above, the court must accept such properly pleaded facts as true on demurrer. (Mathews v. Becerra, supra, 8 Cal.5th at p. 768; New Livable California v. Association of Bay Area Governments, supra, 59 Cal.App.5th at p. 714.)
Despite defendant’s arguments and repeated references to multiple documents purportedly filed in the underlying action that supposedly show EAA does not in fact have standing to sue, defendant has only provided and requested judicial notice of a single minute order from the underlying case. And that minute order shows nothing of the sort. (See Dem. P&As at p. 4, fn. 3, Ex. 1.) Specifically, that minute order shows that at some point in time in the underlying action, Portigon AG (Portigon) successfully moved to substitute itself as the judgment creditor in place of WestLB and obtained an amended judgment accordingly, upon which a renewal of judgment was then entered. Rebeil later moved to vacate that amended judgment and renewal of judgment, arguing that he had never received notice of Portigon’s motion for substitution and amended judgment. The subject minute order, issued on 7/16/21, simply reflects the court’s ruling granting Rebeil’s motion to vacate, based on two alternate findings. First, the court found that Rebeil was defectively served with Portigon’s motion, warranting the vacatur of the resulting amended judgment and renewal of judgment. Second, the court alternatively found that there were grounds for equitable relief based on extrinsic mistake, because the defective service of Portigon’s motion prevented Rebeil from presenting a defense/opposition thereto that had “minimal merit,” with that “minimal merit” consisting of the fact that Portigon’s motion was supported by a defective declaration (specifically, a declaration that failed to comply with Code of Civil Procedure section 2015.5). (Id. at Ex. 1.)
Nothing in this minute order suggests, much less conclusively establishes, that plaintiff EAA lacks standing to sue as the real party in interest in this case. As noted above, the court can only consider the allegations of the complaint (which must be taken as true) and judicially noticed matters on a demurrer. And, contrary to defendant’s contentions, the complaint and judicially noticed documents here plainly show EAA’s standing to sue defendant on the judgment as the real party in interest. (See Compl. ¶¶ 1, 9-11, Exs. 6-9; Pltf. RJN at Ex. B.)
Tentative Ruling: Defendant Steven W. Rebeil’s demurrer to complaint is OVERRULED.Defendant shall answer the complaint within 10 days.
Defendant’s request for judicial notice (ROA No. 15–Dem. P&As at p. 4, fn. 3, Ex. 1) is GRANTED. (See Evid. Code, § 452, subds. (c), (d).) Plaintiff’s request for judicial notice (ROA No. 36) is also GRANTED. (See Evid. Code, § 452, subd. (d).)
Defendant to give notice.
Gomez vs. Gomez
Demurrer to Amended Complaint
Compliance With CCP § 430.41: Defendant’s counsel fails to provide evidence of timely compliance with the meet and confer requirements of CCP § 430.41.
The demurrer references a declaration by attorney Nguyen, but the declaration is not before the court. Additionally, the demurrer appears to state that meet and confer occurred by letter, but CCP §430.41(a) requires that meet and confer occur by in person conversation or by telephone.
The court’s records do not include a copy of defendant’s meet and confer declaration as required by Calif. Code of Civil Procedure, section 430.41, and the proof of service for the demurrer does not reflect service of a declaration.
Tentative Ruling: The Hearing on the Demurrer by Defendant Dorian Ignacio Gomez Horta, erroneously sued as “Dorian Gomez” is continued to a date to be determined at the hearing on May 20, 2022. The parties are ordered to meet and confer in person or via telephone, and defendant’s counsel is to file a meet and confer declaration at least nine days before the continued hearing.
Defendant is ordered to give notice.