Judge: Nathan R. Scott, Case: Jaiswal v. Del Franco, Date: 2022-11-18 Tentative Ruling

Case Management Conference

The CMC shall proceed today.  Our next available trial date is 4/26/24.

Applications for RTAO/Writ of Attachment re

·         Ellipsis Consulting LLC

·         Focal Point LLC

·         Jennifer Bigger

·         Tiffany Ray

Plaintiffs Sanjeev Jaiswal and iFiber Optix Inc.’s applications for right to attach orders and writs of attachment against defendants Ellipsis Consulting, LLC, Focal Point, LLC, Jennifer Bigger, and Tiffany Ray, are denied.

There is no proof of service of the moving papers.  (See Code Civ. Proc., §§ 1005 [requiring service], 1014 [requiring notice of hearings]; Cal. Rules of Court, rule 3.1300(c) [requiring filed proof of service]; Weil & Brown, Cal. Practice Guide:  Civil Procedure Before Trial (The Rutter Group 2022) ¶ 9:15.1 [“Failure to comply may result in the court ordering your motion off calendar”].

Applications for RTAO/Writ of Attachment re

·         David A. Lahar

·         DMA Holding (MA) LLC

·         Ellipsis Water LLC

·         Elysium Cardinal, LLC

Plaintiffs’ applications for RTAOs/writs of attachment against defendants David A. Lahar, DMA Holding (MA) LLC, Ellipsis Water LLC, and Elysium Cardinal LLC, are denied.  (Code Civ. Proc., § 484.090.) 

Plaintiffs have not shown any contract with these defendants.  (See Code Civ. Proc., § 483.010, subd. (a); Jaiswal decl., ¶¶ 10, 11, 16-21 [alleging purported oral agreement with Lahar (and Del Franco) only, not any of these entity defendants]; Lahar decl., ¶¶ 4-10, 14, 15 [denying any agreements with plaintiffs at all] & Ex. A ¶¶ 3-7 [explaining $128K payment from Del Franco as repayment of separate loan].)

Further, plaintiffs without explanation rely on new facts not raised in their prior applications.  (See Code Civ. Proc., § 1008, subd. (b) [authorizing subsequent application for relief previously sought, based upon “new or different facts, circumstances, or law”]; Film Packages, Inc. v. Brandywine Film Productions, Ltd. (1981) 193 Cal.App.3d 824, 829-830 [diligence requirement applies to renewed motions].) 

Previously, plaintiff alleged an oral and written agreement with defendant Del Franco to purchase iFiberOptix in its entirety.  (See Def. RFJN (ROA #685) Ex. 2 ¶¶ 9, 14-17, 33.) 

Plaintiffs now allege an oral contract with defendants Del Franco and Lahar to purchase 49% of iFiberOptix (see Jaiswal decl., ¶¶ 11, 16-21), as well as a potential “water deal” and other investments by plaintiffs in companies owned or affiliated with Del Franco and Lahar.  (Id. ¶¶ 10-11, 21). 

As to defendant Ellipsis Water, plaintiff fails to show any new facts at all.  The bank records obtained in September 2013 do not show any transfers to this defendant.  (Jaiswal decl., Exs. A and B)

While the court has considered plaintiff’s entire 28-page brief in the absence of objection, it retains discretion to disregard future overlong briefs.  (See Cal. Rules of Court, rule 3.1113(d), (e), (g).)

Defendants’ request for judicial notice is granted.  (See Evid. Code, § 452, subd. (d).)

Defendants’ objections to the Jaiswal decl. are overruled. 

Applications for RTAO/Writ of Attachment re

·         Paul A. Garcia

Plaintiffs’ applications for RTAO/writ of attachment against defendant Paul A. Garcia is denied.  (Code Civ. Proc., § 484.090.) 

Defendant made a general appearance and waived any service defects by filing a written opposition on the merits.  (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 698; Factor Health Management, LLC v. Superior Court (2005) 132 Cal.App.4th 246, 250; Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52.) 

Plaintiffs fail to show any contract with Garcia in his individual capacity.  (Code Civ. Proc., § 483.010.) Plaintiffs’ declaration instead avers Garcia was the “money manager” for Montecristo.  (Jaiswal Decl. ¶¶ 12-14, 20-22, 24, 32, 34, 35.)  But it does not show a contract with Garcia or payment of money to Garcia.  (See First Interstate Bank v. State of California (1987) 197 Cal.App.3d 627, 635 [no “money had and received” claim against defendant who never had or received the money].)

Even with regard to the offer of a credit line with convertible rights to acquire a 49% share of Focal Point, (Jaiswal decl. ¶¶ 20-22), plaintiffs did not show any transaction with Garcia personally.  Further, plaintiffs do not show the credit line was ever established or converted to Focal Point shares. 

Finally, the court notes this transaction was not raised in plaintiffs’ prior application (see ROA #685, Ex. 2); plaintiffs do not explain why they raise it now.

Motion for Protective Order

Defendants David Lahar and Ellipsis Water LLC’s motion for protective order is granted in part.  (See Code Civ. Proc., § 2025.420, subds. (b)(1), (5), (10), (11).)

The motion is granted as to the request to limit production of documents.  As to these requests, defendants’ privacy objections have merit.  (See Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [balancing test].)  

Defendants Lahar and Ellipsis Water shall produce documents responsive to Category #1 and 11-19 of plaintiffs’ Third Amended Deposition Notice (Maralan decl. Ex. A.)  Defendants shall also produce documents responsive to Category #2-5 and 8, limited to the time period of October 2020 to present, and limited to transactions involving any party to this action, with appropriate redactions if necessary. 

If either defendant withholds any document for attorney-client privilege or work-product protection (see Maralan Decl., Ex. C), that defendant shall serve a privilege log at the time of production.

Defendants need not produce documents responsive to Category #6-7 [privacy] or 9-10 [taxpayer’s return privilege].

The motion is denied without prejudice as to the scope of the depositions.  Plaintiffs allege claims (conspiracy, fraudulent conveyance, etc.) that may reasonable require discovery of information beyond transactions between plaintiffs and defendants – or among defendants.  (See Code Civ. Proc., § 2017.010 [broad scope of discovery].) 

Thus, ascertaining the proper scope of the deposition will require a record showing specific objections to individual questions.  (Cf. Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 305 [“Only after the party claiming the privilege objects with specificity to the information sought can the court make a determination about whether the privilege may be invoked”].) 

All sanctions requests are denied.  (See Mattco Valley Forge v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1437 [court’s discretion to deny sanctions upon mixed results].)

Plaintiffs shall give notice of all rulings.