Judge: John J. Kralik, Case: 21BBCV00971, Date: 2023-08-18 Tentative Ruling
Case Number: 21BBCV00971 Hearing Date: December 15, 2023 Dept: NCB
North
Central District
|
amy r. amira, Trustee of The
Cynthia L. Amira Family Trust, Plaintiff, v. CMM, LLP, et al., Defendants. |
Case
No.: 21BBCV00971 Hearing Date: December 15, 2023 [TENTATIVE]
order RE: motions to compel compliance |
BACKGROUND
A.
Allegations
Plaintiff Amy R.
Amira (“Ms. Amira”), Trustee of The Cynthia L. Amira Family Trust (“Plaintiff”
or “Amira Trust”) alleges that it entrusted professional business management,
financial planning, and tax services to Defendant CMM, LLP (“CMM”) and its
partner Defendant Gregory A. Mogab (“Mogab”), but that they breached the
fiduciary duty they owed to the Amira Trust by conspiring with other Defendants
to fraudulently induce the Amira Trust to enter into a limited partnership
investment controlled by Defendants as the general partner. The deal involved the real estate development
at a property located at 6142-6144 Hazelhurst Place in North Hollywood. The Hazelhurst L.P. Agreement’s terms were
that Defendant Hazelhurst Place Properties, L.P. (“Hazelhurst LP”) would
acquire the property with the following limited partners: (1) $100 contribution
by Defendant OMG Construction Management, LLC (“OMG”) for 1% ownership; (2)
$100 contribution by Mogab for 20% ownership; (3) $100 contribution by
Defendant Anthony Olmedo (“Olmedo”) for 20% ownership; (4) $100 contribution by
Defendant Agustin Gonzalez (“Gonzalez”) for 20% ownership; and (5) $1,400,000
contribution by Amira Trust for 39% ownership.
Ms. Amira
executed the Hazelhurst L.P. Agreement and the Amira Trust provided all the
capital. Plaintiff alleges that
Defendants engaged in self-dealing through fraud, undue influence, and
deception, and wrongfully converted millions of dollars from the Amira Trust for
their sole financial gain.
The
First Amended Complaint (“FAC”), filed April 14, 2022, alleges causes of action
for: (1) breach of
fiduciary duty; (2) fraud; (3) conversion; (4) negligence; (5) accounting; (6)
quiet title; (7) breach of contract; and (8) professional negligence. The 1st, 2nd, 3rd,
and 5th causes of action are alleged against CMM, Mogab, Gonzalez,
Olmedo, OMG, HTD, and Hazelhurst LP. The
4th cause of action is alleged against Mogab, Olmedo, Gonzalez, OMG,
HTD, and Hazelhurst LP. The 6th cause
of action is alleged Mogab, Olmedo, Gonzalez, OMG, Ira J. Boren, and Hazelhurst
LP. The 7th cause of action
is alleged against CMM and Mogab. The 8th
cause of action is alleged against CMM and Mogab.
On February 2, 2023, Plaintiffs
filed an Amendment to Complaint naming Robert L. Schreiber as Doe 1 (as to the
1st, 2nd, 3rd, 4th, and 7th
causes of action).
B.
Motion on Calendar
On September 21, 2022, Plaintiff filed a
motion to compel compliance with the demand for production of inspection of
documents, set one (“DPD”) against CMM, pursuant to CCP § 2031.320. On December 4,
2023, CMM filed opposition papers. On
December 8, 2023, Plaintiff filed reply papers.
DISCUSSION RE MOTION TO COMPEL CMM’S COMPLIANCE WITH DPD
In the
initial motion papers, Plaintiff moved to compel CMM’s compliance with DPD Nos.
1, 4-10, 28, and 35. In the reply
papers, Plaintiff’s counsel Loren Cohen states that the parties have been
meeting and conferring and that the main concern is CMM’s response to DPD Nos.
9 and 10 regarding Stephanie Green’s emails, but that Plaintiff still seeks an
order granting the discovery requests for Nos. 1, 4-10, 28, and 35. Plaintiff also seeks an order that the
supplemental responses are not code compliant and that CMM be ordered to make
their IT PMK available via phone call to Plaintiff’s IT person concerning the
loss of Ms. Green’s emails.
DPD No. 1
asks for CMM’s entire file regarding Plaintiff from 2013 to the present. CMM objected that the DPD was overbroad and
unduly burdensome as to time and scope, was duplicative of DPD Nos. 2-52, the
terms were vague, seeks irrelevant information, and seeks documents protected
by the attorney-client and work product privilege. Without waiving objections, CMM states that
it incorporates its responses to DPD Nos. 2-52.
By way of example, CMM’s response to DPD Nos. 2-3 (all retention
agreements and documents concerning ascertainment of investment risk level)
makes similar objections but also states that CMM has made a diligent search
and reasonable inquiry in an effort to comply with the DPD and will produce
responsive documents within its possession, custody, and control. In its response to DPD No. 4 (communications
between CMM and Plaintiff), CMM objected but also offered to comply with the
DPD by permitting Plaintiff to inspect each document at its own expense at a
location designated by CMM.
Plaintiff moves
to compel CMM’s compliance pursuant to CCP § 2031.320. Section 2031.320 states that if a party
filing a response to a DPD thereafter fails to permit the inspection, copying,
testing, or sampling according to its statement of compliance, the demanding
party may move to compel compliance.
Plaintiff argues that CMM confirmed it would make its files available in
their June 13, 2022 meet and confer letter and that Plaintiff’s counsel
attempted to facilitate a more efficient and less intrusive means of discovery,
but CMM’s counsel has been unavailable due to personal reasons. Plaintiff states that it is bringing this
motion as a precautionary measure.
Based on CMM’s
response that it would comply with the discovery request and that it would
either produce documents or allow Plaintiff to inspect the documents at its own
expense at a location designated by CMM, the Court grants Plaintiff’s motion to
compel CMM’s compliance with DPD No. 1.
DPD Nos. 4-5
seek all communications between (4) CMM and Plaintiff and (5) CMM and Mogab,
from 2013 through the present. DPD
No. 6 seeks all communications between CMM and Mogab from 2013 through the
present concerning Hazelhurst Place Properties.
DPD Nos. 7-8 seek all communications between CMM and Robyn Brems
from 2013 to the present concerning (7) Plaintiff and (8) Hazelhurst Place
Properties. DPD Nos. 9-10 seek
all communications between CMM and Stephanie Green from 2013 to the present
concerning (9) Plaintiff and (10) Hazelhurst Place Properties. DPD No. 28 seeks all documents
evidencing any payment CMM received from Morgan Stanley on account of Plaintiff
from 2013 through the present. DPD
No. 35 seek all documents evidencing any payment CMM received from UBS
Financial Services or any affiliated entity on account of Plaintiff from 2013
through the present.
As discussed
above, CMM objected to these DPDs, but stated that it would comply with the
DPDs by permitting Plaintiff to inspect the documents at its own expense at a
location designated by CMM. As such, the
motion will be granted as to DPD Nos. 4-10, 28, and 35.
for the reasons discussed
above.
Further, with
respect to DPD Nos. 9-10 regarding the communications between CMM and Ms.
Green, the Court will also grant the motion.
Plaintiff’s counsel states that CMM admitted that it lost all of
Stephanie Green’s emails and that prior counsel Joel Kibre had agreed to
provide further search parameters to obtain Ms. Green’s emails and request that
Plaintiff’s IT consultant talk with CMM’s consultant, but that agreement has
since been reneged by David Crochetiere (current counsel). (Cohen Reply Decl., ¶¶4-7, Ex. 8.) Based on this loss of evidence, the Court
finds Plaintiff’s suggestion that the IT personnel of Plaintiff and CMM
communicate and engage in good faith meet and confer efforts to ascertain when
and how the documents went missing and whether they can be recovered. If such efforts fail, then Plaintiff may
bring an appropriate motion regarding the emails between CMM and Ms.
Green.
Plaintiff seeks
$2,665 in sanctions against CMM and CMM’s counsel (=3 hours on the motion + 1
anticipated hour for the reply at $650/hour, plus $65 filing fee). The Court will award $1,065 in sanctions on
this motion.
CONCLUSION
AND ORDER
Plaintiff
Amy R. Amira, Trustee of The Cynthia L. Amira Family Trust’s motion to compel
Defendant CMM, LLP’s compliance with the Demand for Production of Documents
Nos. 1, 4-10, 28, and 35 is granted. Defendant
is ordered to provide responses within 20 days of notice of this order. With respect to DPD Nos. 9 and 10, the
parties and their IT departments are ordered to meet and confer in good faith
to determine when and how the emails between CMM and Stephanie Green were lost,
misplaced, or destroyed and whether they can be recovered.
Defendant and its counsel of record, jointly and severally, are ordered to
pay monetary sanctions in the amount of $1,065 to Plaintiff, by and through
counsel within 20 days of notice of this order.
Plaintiff shall provide notice of this
order.
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DATED: December 15, 2023 ___________________________
John
J. Kralik
Judge
of the Superior Court