Judge: Maurice A. Leiter, Case: 21STCV43430, Date: 2023-10-30 Tentative Ruling

Case Number: 21STCV43430    Hearing Date: April 17, 2024    Dept: 54

Hearing Date: April 17, 2024

Department 54, Judge Maurice Leiter

(3) Motions to Compel Further Responses to Requests for Production of Documents

Moving Party: Plaintiffs Joel Bernknopf and John Lamorte

Responding Party: None

T/R:     PLAINTIFFS' MOTIONS TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS ARE CONTINUED.

PLAINTIFFS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers. No opposition was filed.

BACKGROUND

On November 24, 2021, Plaintiffs Joel Bernknopf and John Lamorte sued Defendants Brian M. Cronin, Natalie Gonzalez Cronin, ARC-IV, LLC, ARC-V, Inc., and Orthopros, asserting causes of action for (1) securities fraud; (2) fraud by concealment; (3) intentional misrepresentation; (4) negligent misrepresentation; (5) breach of buyer note; (6) breach of debt assumption agreement; (7) breach of employment agreement; and (8) financial elder abuse.

Plaintiffs founded Orthopros, an orthotics and prosthetics company in 1982. Plaintiffs allege they sold Orthopros to Defendants via a stock purchase agreement in 2020 for $1,193,756. Joel and John each received a Buyer Note from Orthopros for $471,886. ARC-IV agreed to assume certain “contingent liabilities” that Orthopros owed to Joel and John in an amount not to exceed $249,984. Plaintiffs continued to work for Orthopros until November 2021. Plaintiff alleges Orthopros defaulted on the buyer notes by obtaining a $500,000 small business loan.

On February 28, 2022, Brian M. Cronin, ARC-IV, LLC, ARC-V, Inc., and Orthopros filed a cross-complaint against Joel Bernknopf and John Lamorte, asserting causes of action for (1) breach of employment agreement; (2) breach of the implied covenant of good faith and fair dealing; (3) fraud – concealment; and (4) fraud – intentional misrepresentation.

ANALYSIS

The moving party on a motion to compel further responses to requests for production of documents (“RPDs”) must submit “specific facts showing good cause justifying the discovery sought by the inspection demand.”  (CCP § 2031.310(b)(1).)  If the moving party has shown good cause for the RPDs, the burden is on the objecting party to justify the objections.  (Kirkland v. Sup.Ct (2002) 95 Cal. App.4th 92, 98.)

Plaintiffs move to compel further responses to RPDs, sets two, three and four, from Defendant ARC-IV and to RPDs, sets three and four from Defendant Orthopros. On March 21, 2024, the Court relieved Defendants’ counsel. The Court record reflects that Defendants have not yet retained counsel. As Defendants Orthopros and ARC-IV are entities, they cannot proceed in this action without counsel. The motions are CONTINUED. The Court will set a date at the hearing.

Hearing Date: April 17, 2024

Department 54, Judge Maurice Leiter

Motion for Summary Adjudication

Moving Party: Defendant Natalie Gonzalez Cronin

Responding Party: Plaintiffs Joel Bernknopf and John Lamorte

T/R:     DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION IS DENIED.

DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers and opposition.

BACKGROUND

On November 24, 2021, Plaintiffs Joel Bernknopf and John Lamorte sued Defendants Brian M. Cronin, Natalie Gonzalez Cronin, ARC-IV, LLC, ARC-V, Inc., and Orthopros, asserting causes of action for (1) securities fraud; (2) fraud by concealment; (3) intentional misrepresentation; (4) negligent misrepresentation; (5) breach of buyer note; (6) breach of debt assumption agreement; (7) breach of employment agreement; and (8) financial elder abuse.

Plaintiffs founded Orthopros, an orthotics and prosthetics company in 1982. Plaintiffs allege they sold Orthopros to Defendants via a stock purchase agreement in 2020 for $1,193,756. Joel and John each received a Buyer Note from Orthopros for $471,886. ARC-IV agreed to assume certain “contingent liabilities” that Orthopros owed to Joel and John in an amount not to exceed $249,984. Plaintiffs continued to work for Orthopros until November 2021. Plaintiff alleges Orthopros defaulted on the buyer notes by obtaining a $500,000 small business loan.

On February 28, 2022, Brian M. Cronin, ARC-IV, LLC, ARC-V, Inc., and Orthopros filed a cross-complaint against Joel Bernknopf and John Lamorte, asserting causes of action for (1) breach of employment agreement; (2) breach of the implied covenant of good faith and fair dealing; (3) fraud – concealment; and (4) fraud – intentional misrepresentation.

ANALYSIS

Defendant Natalie Gonzalez-Cronin moves for summary adjudication of seventh, eleventh, thirteenth and fourteenth the causes of action. In opposition, Plaintiffs argue that the motion must be denied because it was untimely served. Defendant served the motion by electronic service on Friday, February 2, 2024, 75 days before the hearing date of April 17, 2024. Plaintiff asserts that motion must have been served no later than Wednesday January 31, 2024.

Defendant’s motion is untimely. CCP § 437c(a)(2) provides that “[n]otice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing.” (CCP § 437c(a)(2); see Cuff v. Grossmont Union High School Dist. (2013) 221 Cal.App.4th 582, 596.) If the notice is served by electronic mail, the 75-day period is increased by 2 days. (CCP, § 437c(a)(2).) The Court lacks power to change the notice and filing periods of section 437c. (See McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 115-18; see also Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 765-66 (discussing McMahon and reversing judgment for failure to provide notice by the statutorily required minimum time); Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 299.)

Defendant’s motion is DENIED.