Judge: John J. Kralik, Case: 21GDCV01353, Date: 2024-11-08 Tentative Ruling
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Case Number: 21GDCV01353 Hearing Date: November 8, 2024 Dept: NCB
North
Central District
|
andrew bergman, et al.,
Plaintiffs, v. isaac blocher, et al., Defendants. |
Case
No.: 21GDCV01353 Hearing Date: November 8, 2024 [TENTATIVE]
order RE: motions to compel further responses |
BACKGROUND
A. Allegations
Plaintiffs
Andrew Bergman, Andrew Bondarczuk, Edward Bondarczuk, Matthew Bondarczuk, Steve
Bondarczuk, Cain Hernandez, Joshua Miller, Aaron Mullenix, Christopher Nuesa,
Jane Park, William Marc Salsberry, Trevor Schmidt, Aaron Stogner, Brian
Walters, and Carlos Zoller (“Plaintiffs”) commenced this action against
Defendant Isaac Blocher, Kristie Blocher, Aneaka English, Blocher Holdings LLC,
Consortium Title, LLC, Wholesale Listings Ltd. Co., LLC, Wholesale Real Estate,
LLC, WSRE South Carolina, LLC aka WSRE S. Carolina, LLC, WSRE Georgia, LLC,
Selling N. Atlanta, LLC, Selling Real Estate, LLC, Selling N. Charleston, LLC,
Selling N. Richmond, LLC, WSRE Florida, LLC, and E.S. Real Estate Consortium
Corp. Shepherds, LLC is named as a
nominal defendant.
Plaintiffs
allege that they are members and investors of Shepherds LLC. Isaac and Kristie Blocher are alleged to be
the members of Blocher Holdings LLC (now dissolved) and Blocher Holdings LLC
served as the manager for Shepherds LLC.
Isaac Blocher is also alleged to be the manager of Shepherds LLC.
Plaintiffs
allege that Isaac Blocher made false promises to Plaintiffs to induce their
investment into Shepherds LLC, such as promising he would generate income for
Plaintiffs, be a professional investment mortgage broker and private lender, be
a good steward to Plaintiffs’ investment, etc.
(SAC, ¶42.) In reliance on Isaac
Blocher’s representations, Plaintiffs invested a total of $2,437,488 into
Shepherds LLC. Plaintiffs allege that Isaac Blocher invested
nearly all of Plaintiffs’ funds with Aneaka English and transferred nearly $2.1
million from the company’ bank account into Aneaka English’s bank account. Plaintiffs allege that Aneaka English
subsequently stole the money. Plaintiffs
allege that this and other conduct by Isaac Blocher amounted to grossly
negligence and/or reckless investing and behavior.
The second
amended complaint (“SAC”), filed September 5, 2023, alleges causes of action
for: (1) breach of fiduciary
duty – count one – direct cause of action; (2) breach of fiduciary duty – count
two – derivative cause of action; (3) conversion – count one – direct cause of
action; (4) conversion – count two – derivative cause of action; (5) fraud –
count one – direct cause of action; (6) negligence – count one – direct cause
of action; (7) negligence – count two – derivative cause of action; (8) breach
of written contract – count one – direct cause of action; (9) breach of written
contract – count two – derivative cause of action; (10) breach of the covenant
of good faith and fair dealing – direct cause of action; (11) violation of Bus.
& Profs. Code, §§ 17200 et seq. – count one – direct cause of
action; (12) violation of Bus. & Profs. Code, §§ 17200 et seq. –
count two – derivative cause of action; (13) accounting – count one – direct
cause of action; and (14) accounting – count two – derivative cause of action.
B. Cross-Complaint
On
October 20, 2023, Defendants/Cross-Complainants Aneaka English aka Aneaka Ukah,
Selling N. Atlanta, LLC, Selling N. Charleston, LLC, Selling N. Richmond, LLC,
WSRE Florida, LLC, WSRE Georgia, LLC, and WSRE South Carolina LLC
(“Cross-Complainants”) filed a cross-complaint against Cross-Defendants Andrew
Bergman, Andrew Bondarczuk, Edward Bondarczuk, Matthew Bondarczuk, Steve
Bondarczuk, Cain Hernandez, Joshua Miller, Aaron Mullenix, Christopher Nuesa,
Jane Park, William Marc Salsberry, Trevor Schmidt, Aaron Stogner, Brian
Walters, Carlos Zoller, Isaac Blocher, Kristie Blocher, Blocher Holdings, LLC,
and Shepherds, LLC. The cross-complaint
alleges causes of action for: (1) accounting; (2) declaratory relief; (3)
violation of Business & Professions Code, § 17200 et seq.; and (4)
interpleader.
On
February 16, 2024, the Court sustained without leave to amend Cross-Defendants
Andrew Bergman, Andrew Bondarczuk, Edward Bondarczuk, Matthew Bondarczuk, Steve
Bondarczuk, Cain Hernandez, Joshua Miller, Aaron Mullenix, Christopher Nuesa,
Jane Park, William Marc Salsberry, Trevor Schmidt, Aaron Stogner, Brian Walters,
and Carlos Zoller’s demurrer to and granted without leave to amend the motion
to strike the cross-complaint filed on October 20, 2023. That same day, the Court dismissed without prejudice
the cross-complaint as to these Cross-Defendants.
On
October 25, 2024, the Court granted without leave to amend Shepherds’ motion
for judgment on the pleadings. The same
day, the Court dismissed with prejudice the cross-complaint as to Shepherds.
Thus, the only
remaining Cross-Defendants are Isaac Blocher, Kristie Blocher, and Blocher
Holdings, LLC.
C. Relevant
Background re: Bankruptcy
On
September 23, 2024, Defendants Isaac Blocher and Kristie Blocher filed a Notice
of Bankruptcy (Chapter 7).
On October 3,
2024, Defendants WSRE S. Carolina LLC, WSRE Georgia LLC, and WSRE Florida LLC
each filed a Notice of Bankruptcy (Chapter 7).
On October 18,
2024, Defendant Aneaka Ukah aka Aneaka English filed a Notice of Bankruptcy
(Chapter 11).
According to 11 U.S.C. § 362(a), the
filing of a bankruptcy petition operates as a stay in actions against the
debtor, enforcement of judgment against a debtor, any acts to obtain possession
of property, any act to create/perfect/enforce a lien against property of the
estate or against the property of the debtor, to collect assets against the
debtor, to setoff any debt owing to the debtor, or commencing or continuing a
proceeding before the United States Tax Court.
D. Motions
on Calendar
On October 14,
2024, Plaintiff Matthew Bondarczuk filed a motion to compel Defendant Selling
N. Atlanta, LLC’s (“SNA”) further responses to Requests for Admissions – set
one (“RFA”). On October 28, 2024, SNA
filed an opposition brief.
On October 14,
2024, Plaintiff Matthew Bondarczuk filed a motion to compel Defendant Selling
N. Charleston, LLC’s (“SNC”) further responses to RFA. On October 28, 2024, SNC filed an opposition
brief.
On October 14,
2024, Plaintiff Matthew Bondarczuk filed a motion to compel Defendant Selling
N. Richmond, LLC’s (“SNR”) further responses to RFA. On October 28, 2024, SNR filed an opposition
brief.
On October 30,
2024, Plaintiff Matthew Bondarczuk filed a combined reply brief fr the three
motions.
DISCUSSION
A.
SNA
Plaintiff moves
to compel SNA’s further response to RFA Nos. 1-32.
In opposition,
SNA argues that its counsel, Na’il Benjamin, is unable to address the merits of
the motion due to a conflict of interest and that he has filed motions to be
relieved as counsel. SNA states that it
anticipates that it, as well as the remaining defense entities, will file for
bankruptcy.
There is no
substantive opposition by SNA. There is
also no notice of bankruptcy filed as to SNA.
As such, the Court will consider the substantive merits of the motion to
compel further responses.
The Court has
reviewed Plaintiff’s separate statement.
To each of the 32 RFAs, SNA objected on the grounds that the RFAs were
vague and ambiguous. For example, RFA
No. 1 asks SNA to admit the authenticity of Exhibit 1. SNA objected that the RFA was vague and
ambiguous, and called for speculation, but responded with a denial. RFA No. 2 asks SNA to admit that it entered
the March 5, 2018 Note with Shepherds.
SNA objected that “this request is vague (what is a NOTE?) ambiguous
(how do you enter such a thing?), calls for speculation, and it calls for a
legal conclusion (assuming entered is supposed to be ‘entered into’). Also, it
is unclear what constitutes ‘the MARCH 5, 2018, NOTE.’ Denied.” The RFA requests define “March 5, 2018 Note”
as the promissory note entered into between Shepherds and SNA for $150,000,
attached to the SAC. The remainder of
the RFAs likewise raise the same objections and then deny the RFAs.
The RFAs as
asked are not vague and ambiguous. The
terms are defined at the beginning of the RFAs requests and provide where the
documents are attached for reference.
(Kramer Decl., Ex. 2 [RFA requests].)
To the extent that the objections state that the RFAs call for
speculation, it is unclear what SNA means by this objection and SNA has not
substantiated its objection based on speculation. As such, the motion to compel SNA’s further
responses to the RFAs is granted. SNA is
ordered to provide further responses without objection.
B.
Plaintiff requests $8,520 in
sanctions against SNA and Mr. Benjamin. The
request for sanctions is granted in the total amount of $1,000, plus $60 in
filing fees for this motion, as it does not appear to have been a complicated
motion to compose and is essentially the same as the motions directed against
SNC and SNR. SNC
Plaintiff moves
to compel SNC’s further response to RFA Nos. 1-11. SNC makes similar opposition arguments as
SNA.
The Court has
reviewed Plaintiff’s separate statement. Similar to the motion directed against SNA,
SNC objected on the grounds that the RFAs were vague and ambiguous and called
for speculation; SNC also responded with denials. The same analysis regarding the motion
directed against SNA applies here with respect to the RFAs directed against
SNC. As such, the motion to compel SNC’s
further responses to the RFAs is granted.
SNC is ordered to provide further responses without objection.
Plaintiff
requests $8,520 in sanctions against SNC and Mr. Benjamin. The request for sanctions is granted in the
total amount of $1,000, plus $60 in filing fees for this motion.
C.
SNR
Plaintiff moves
to compel SNR’s further response to RFA Nos. 1-33. SNR makes similar opposition arguments as SNA
and SNC.
The Court has
reviewed Plaintiff’s separate statement.
Similar to the motion directed against SNA and SNC, SNR objected on the
grounds that the RFAs were vague and ambiguous and called for speculation; SNR also
responded with denials, but did not waive the objections, thereby necessitating
these motions. The same analysis
regarding the motion directed against SNA applies here with respect to the RFAs
directed against SNR. As such, the
motion to compel SNR’s further responses to the RFAs is granted. SNR is ordered to provide further responses
without objection.
Plaintiff
requests $8,520 in sanctions against SNR and Mr. Benjamin. The request for sanctions is granted in the
total amount of $1,000, plus $60 in filing fees for this motion.
CONCLUSION AND
ORDER
Plaintiff Matthew Bondarczuk filed a
motion to compel Defendant Selling N. Atlanta, LLC’s further responses to
Requests for Admissions – set one is granted.
Defendant Selling N. Atlanta, LLC and its counsel of record Na’il Benjamin,
jointly and severally, are ordered to pay monetary
sanctions in the amount of $1,060 to Plaintiff, by and through counsel, within 20
days of notice of this order.Plaintiff
Matthew Bondarczuk filed a motion to compel Defendant Selling N. Charleston,
LLC’s further responses to Requests for Admissions – set one is granted. Defendant
Selling N. Charleston, LLC and its counsel of record Na’il Benjamin, jointly and
severally, are ordered to pay monetary sanctions in
the amount of $1,060 to Plaintiff, by and through counsel, within 20 days of
notice of this order.
Plaintiff Matthew Bondarczuk filed a motion to compel
Defendant Selling N. Richmond, LLC’s further responses to Requests for
Admissions – set one is granted. Defendant
Selling N. Richmond, LLC
and its counsel of record Na’il Benjamin, jointly and severally, are ordered to pay monetary sanctions in the amount of $1,060
to Plaintiff, by and through counsel, within 20 days of notice of this order.
Defendants are ordered to provide further responses
within 30 days of notice of this order.
Plaintiff
shall
provide notice of this order.
DATED:
November 8, 2024 ___________________________
John
J. Kralik
Judge
of the Superior Court