Judge Gail Killefer, Case Number: 20STCV04930, Date: 2024-12-12 Tentative Ruling

TENTATIVE: Defendant Molayem’s motion to quash the deposition notice and stay the deposition is denied.

This action arises out of the purchase of several pieces of jewelry (the “Jewelry”) through an online action. Plaintiff, Wolfgang Ziegler (“Plaintiff”), a German national, purchased the Jewelry sold by Defendants, Federal Government Liquidation, Multi-Auction Services, and Hill Street Jewelers USA, Inc., as well as its chief executive, George Molayem (collectively “Defendants”). Between February 6 through 10, 2017, Plaintiff bid, and subsequently purchased, the Jewelry from Defendants through an internet auction site operated by a third party. On March 7, 2017, Plaintiff received the Jewelry and allegedly suspected they were not of the advertised quality. Plaintiff alleges he had the Jewelry appraised in Germany, and further alleges the appraiser found the Jewelry to be of lower quality than represented. On March 20, 2017, Plaintiff alleges he telephonically communicated with Defendants regarding the allegedly deficient Jewelry, and return several items of the Jewelry for a refund. However, Plaintiff alleges the Defendants refused to refund Plaintiff for the two largest items of the Jewelry, and Plaintiff suffered damages as a result.

On February 20, 2020, Plaintiff filed a Complaint alleging the following causes of action: (1) violation of Business & Professions Code § 17200, et seq.; (2) violation of Consumer Legal Remedies Act, Civil Code, § 1750, et seq.; (3) breach of express warranty; and (4) fraud.

On July 13, 2022, Plaintiff filed an amendment to complaint, naming George Molayem (“Molayem”) as Doe 1. Proof of personal service on Defendant Molayem was filed on August 15, 2022. Defendant Molayem filed an Answer on February 8, 2023.

Defendant Molayem now moves to quash his deposition notice and has filed a motion for judgment on the pleadings. Plaintiff opposes both Motions. The matter was continued to allow for supplemental briefing.

motion to quash deposition notice[1]

Plaintiff’s Objections Nos. 1, 2, and 3 as to the Declaration of Stanley H. Kimmel are sustained due lack of personal knowledge. Defendant Molayem must file a declaration attesting to his medical condition and health impairments.

Defendant Molayem moves to quash service of the deposition notice under CCP § 425.410 on the basis that it was emailed rather than served by mail.

Defendant Molayem does not dispute that CCP §§ 1010.6(a), 1011(c), and 1013(g) permit service of deposition notice by email. (See also CRC, rules 2.250 et seq.) While Defendant Molayem asserts that no rule of court or local rule mandates acceptance by email, Defendant Molayem fails to show that he can reject service on the basis that the deposition notice was served by email. CCP § 1010.6(2) prohibits electronic service only “[i]f a document is required to be served by certified or registered mail.”

Section 1010.6(b)(2) further states: “A person represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.” Pursuant to section 1010.6(b)(2), the deposition notice sent by email was valid because Defendant Molayem is represented by counsel.

While Defendant Molayem asserts that he never consented to electronic service, he expressed affirmative consent “through electronic means with the court or the court's electronic filing service provider, and concurrently providing the party’s electronic address with that consent for the purpose of receiving electronic service.” (CCP § 1010.16(c)(3)(ii).) The record before the court reflects that Defendant Molayem has accepted electronic service on five prior occasions. (See Proof of Service of Notice filed 07/14/2023; Proof of Service of Notice filed 10/13/2023; Proof of Service of Notice filed 04/22/2024; Proof of Service of Notice filed 04/24/2024; Proof of Service of Notice filed 07/18/2024.)

Accordingly, Defendant Molayem fails to show that service by mail of his deposition notice was required.

Moreover, Defendant Molayem does not dispute that he served his objections to the deposition notice by email. (Kimmel Decl., ¶ 15, Ex. 3; Diecke Decl., ¶ 4, Ex. 3.) CCP § 2025.410 states: “If an objection is made three calendar days before the deposition date, the objecting party shall make personal service of that objection pursuant to Section 1011 on the party who gave notice of the deposition.” As Defendant Molayem was required to serve his objections to the deposition notice on Plaintiff by personal service rather than by email, he waived any objections based on any error or irregularity in the deposition notice. (CCP § 2025.410(a).)

Finally, Defendant Molayem asserts that the deposition notice should be quashed because discovery is closed, and Plaintiff has not moved to reopen discovery. The court disagrees.

On April 22, 2024, Plaintiff filed an ex parte application seeking “a six-month continuance of the trial date currently set for May 21, 2024, all related deadlines, and the Final Status Conference currently set for May 14, 2024.” Despite receiving notice of the ex parte hearing by email, Defendant Molayem did not oppose the ex parte and appeared at the April 23, 2024 hearing wherein this court granted the ex parte:

Pursuant to the request of plaintiff, the Jury Trial (5 days) scheduled for 05/21/2024 is advanced to this date and continued to 01/07/2025 at 10:00 AM in Department 37 at Stanley Mosk Courthouse.

Defendant Molayem now asserts that because prior requests for trial continuance orders expressly stated “Discovery is reopened to correspond with the new trial date” the fact that the court extended all deadlines did not mean that discovery was reopened. (Supp. Opp. Exs. 1-2.)

(a) Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.

(b) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.

Defendant Molayem asserts that discovery is closed and the deposition notice should be quashed

because the court did not expressly state the discovery was reopened and Plaintiff did not cite Section 2024.050 in his ex parte application,

In Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, the appellate court found that the trial court erred in hearing Pelton-Shepard’s motion to compel because “the motion was not heard before the discovery motion cutoff date and Pelton–Shepherd never moved to reopen discovery.” (Id. at p. 1571.) Here, the discovery cutoff date was Monday, April 22, 2024, since April 21, 2024 was a Sunday. (CCP § 12a, 12b; see also SCT, (U.S.A.), Inc. v. Mitsui Manufacturers Bank (1984) 155 Cal.App.3d 1059, 1062, fn. 4.) Moreover, 15 days had not yet passed when the court heard the ex parte on April, 23, 2024. Accordingly, discovery had not yet closed when the court extended all deadlines.

Even if Plaintiff was required to file a motion pursuant to Section 2024.050, Defendant Molayem fails to show that the court did not consider the relevant factors outlined in Section 2024.050. “Because the trial court here did not require Pelton–Shepherd to file a motion to reopen discovery under section 2024.050 before, or simultaneously with, filing its motion to compel, there is no indication in the record that the court considered any of the relevant factors.”

Plaintiff’s ex parte application explained that continuing the trial date and related deadlines was required because Defendant delayed in responding to discovery requests and Plaintiff was unable to participate in the set trial date due to injuries. (Ex Parte dated 04/22/2024 at p. 3.) In February 2024, Plaintiff learned that Defendant Molayem’s counsel was suspended from practicing law and efforts to ascertain who was representing Molayem went unanswered. (Id. at p. 4) On April 18, 2024, Plaintiff learned that Defendant’s counsel was again eligible to practice law, but Defendant’s counsel remained unresponsive to Plaintiff’s request for discovery. (Ibid.) These facts were sufficient for the court to determine that Plaintiff was diligent in seeking discovery, moving for a new trial date, and extending the related deadlines. The court also found that continuing the trial date and related deadlines, including discovery, would not interfere with the trial calendar or prejudice any party. (Id. at p. 6) Moreover, a six-month extension would be sufficient for Plaintiff to recover and attend trial. (Ibid.)

Thus, although Plaintiff’s ex parte application did not specifically cite Section 2024.050, the findings before the court support the finding that discovery should be extended to coincide with the new trial date. (See Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 [“An omission in the notice may be overlooked if the supporting papers make clear the grounds for the relief sought.”]; Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193 [“‘The nature of a motion is determined by the nature of the relief sought, not by the label attached to it. The law is not a mere game of words.’”]; O&C Creditors Group, LLC v. Stephens & Stephens XII, LLC (2019) 42 Cal.App.5th 546, 560 [“we do not find labels to be dispositive and instead look at the substance of the motion . . .”].)

Plaintiff also cites various cases wherein the discovery cutoff date was extended due to a request for a new trial date: Diaz v. Professional Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1197 [ex parte application to continue trial granted; discovery cutoff and trial-related deadlines extended based on new trial date]; Polibrid Coatings, Inc. v. Superior Court (2003) 112 Cal.App.4th 920, 922 [same]; and Freedman v. Superior Court (2008) 166 Cal.App.4th 198, 206 [court continued trial date and ex parte cutoff on its own motion].)

Despite being present at the ex parte hearing, Defendant Molayem did not oppose the ex parte application. Consequently, the court granted the ex parte and extended the discovery cutoff date. Defendant Molayem fails to show that the court erred in extending the discovery cutoff date. (CCP § 128.)

motion for judgment on the pleadings[2]

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) When considering demurrers and judgment on the pleadings, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) A motion for judgment on the pleadings does not lie as to a portion of a cause of action. (Id.) “In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action.” (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.)¿¿

Defendant Molayem has filed this Motion for judgment on the pleadings on the basis that Plaintiff’s action is time barred as the Complaint was filed on February 20, 2020, the Doe 1 amendment was not made until July 13, 2022 but Plaintiff had knowledge about Defendant Molayem’s identity since February 2018 when the arbitrator noted that documents filed in arbitration showed that payment was made c/o George Molayem. (Motion at p. 2:6-7.)

“Section 474 allows a plaintiff who is ignorant of a defendant's identity to designate the defendant in a complaint by a fictitious name (typically, as a “Doe”), and to amend the pleading to state the defendant's true name when the plaintiff subsequently discovers it.” (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371.) If a plaintiff unreasonably delays in filing a doe amendment, they are barred from making the amendment. (See A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1066.) If the Doe amendment is improper, the amendment cannot relate back to the filing of the original complaint. (Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1143.)

Defendant Molayem provides no evidence to support the assertion that Plaintiff was made aware of Molayem’s identity at the arbitration hearing in 2017. (Kimmel, ¶ 4.) However, the court agrees that Paragraph 18 of the Complaint states that Plaintiff conducted an “independent investigation” that revealed that Defendants “Federal Government Liquidation, Multi-Auction Services, and Hill Street Jewelers” were “operated by George Molayem from the same address(es) at 2057 and 2067 S. Atlantic Boulevard, Commerce, California 90040-1348.” (Compl., ¶ 18.) Knowledge of these facts lends credence to the fact Plaintiff was aware of Doe 1’s identity and his connection to the other three Defendant entities at the time the Complaint was filed.

Plaintiff asserts that his reference to Molayem was based only on “information and belief” as alleged in Paragraph 18 and that the Doe 1 amendment was proper pursuant to CCP § 474. (Compl., ¶ 18; Dieke Decl., ¶ 3.) Plaintiff fails to cite legal authority showing that naming facts on information and belief negates any knowledge about the defendant’s true identity and the facts giving rise to liability. While affidavits cannot be based on “information and belief”, pleadings can be. (Star Motor Imports, Inc. v. Superior Court (1979) 88 Cal.App.3d 201, 203 [“An affidavit based on ‘information and belief’ is hearsay and must be disregarded”].) A “ ‘[p]laintiff may allege on information and belief any matters that are not within his personal knowledge if he has information leading him to believe that the allegations are true.’” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550 citing Pridonoff v. Balokovich (1951) 36 Cal.2d 788, 792.)

“The phrase ‘ignorant of the name of a defendant’ is broadly interpreted to mean not only ignorant of the defendant's identity, but also ignorant of the facts giving rise to a cause of action against that defendant.” (San Diego Navy Broadway Complex Coalition v. California Coastal Com. (2019) 40 Cal.App.5th 563, 579 citing Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1170.) “[T]he correct test [is]whether ‘the plaintiff is actually ignorant of the facts establishing a cause of action.’” (Hahn v. New York Air Brake LLC (2022) 77 Cal.App.5th 895, 900 citing McClatchy, supra, 247 Cal.App.4th at p. 372.)

Paragraph 18 of the Complaint asserts that “further independent investigation reveals that these three entities are all, upon information and belief, operated by George Molayem from the same address(es) at 2057 and 2067 S. Atlantic Boulevard, Commerce, California 90040-1348 (adjacent properties).” (Compl., ¶ 18.) Accordingly, by pleading on “information and belief” Plaintiff had information leading him to believe that Molayem was the operator of the Defendant entities and was not ignorant of these facts.

The next question is whether the fact Plaintiff Molayem was the operator of the three Defendant entities is sufficient to have alleged a cause of action against Molayem at the time the Complaint was filed. As Defendant Molayem is moving for judgment on the pleadings, Molayem bears the burden of showing of that these two facts are sufficient to assert a cause of action against him at the time the original Complaint was filed such that the Section 474 amendment was improper. Defendant Molayem fails to show how the fact that Plaintiff knew of Molayem’s existence and the fact he operated the three Defendant entities was sufficient to state a cause of action and name him as a Defendant at the time the Complaint was filed.

Defendant Molayem fails to meet this burden. Therefore, the motion for judgment on the pleadings is denied.

Defendant Molayem’s motion to quash the deposition notice and stay the deposition is denied. The motion for judgment on the pleadings is denied.

[1] Pursuant to CCP § 2025.410(c) meet and confer requirement has been meet. (Kimmel Decl., ¶¶ 14-15.)

[2] CCP § 439 requires the moving party to meet and confer in person or by telephone with the party who filed the pleading before filing a motion for judgment on the pleadings. The meet and confer requirement has been met. (Kimmel Decl., ¶ 29.)