Judge: Peter A. Hernandez, Case: 19STCV32597, Date: 2024-09-03 Tentative Ruling
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Case Number: 19STCV32597 Hearing Date: September 3, 2024 Dept: 34
Santopietro v. Harden, et al. (19STCV32597)
The Lil Baby Touring Motion to Quash is DENIED.
An order to show cause is ISSUED
for _______, 2024
as to why Lil Baby and Lil Baby Touring, LLC should not be dismissed from this
matter for failure to timely serve them.
The George Kahwaji and Rodeo Realty Motion to Quash is
GRANTED. The Proof of Service regarding George Kahwaji and Rodeo Realty is
QUASHED. George Kahwaji and Rodeo Realty are DISMISSED WITH PREJUDICE from the
Santopietro FAC.
The Wiseman MSJ, Michael MSJ,
and Harden MSJ are GRANTED in part:
Summary
adjudication is GRANTED in favor of Jeff Wiseman, Solimar Management LLC, Patrick
Michael, LA Estate Rentals LLC, and James Harden and against George Santopietro
as to the fifth cause of action in George Santopietro’s First Amended Complaint
for violation of Penal Code section 496.
The
Wiseman MSJ, Michael MSJ, and Harden MSJ are DENIED as to all else.
The Motion to Bifurcate is DENIED.
The Motion to Compel Deposition
is GRANTED. The HOA shall make Shari Glazer available for deposition within 72
hours of the issuance of this Order.
The
HOA’s Request for monetary sanctions is DENIED.
The Motion to Continue Trial is
DENIED as moot.
Background
On September 12, 2019, George Santopietro
filed his Complaint against James Harden, Jeff Wiseman, Patrick Michael, Lia
Vasdekis, LA Estate Rentals LLC, and Solimar Management LLC. The causes of
action arise from damage that allegedly occurred after these individuals and
corporate entities rented George Santopietro’s real property.
On February 20, 2020, Jeff Wiseman and
Solimar Management LLC filed their Cross-Complaint against George Santopietro.
On April 13, 2020, LA Real Estate Rentals LLC
filed: (1) Answer to the Complaint; and (2) Joinder to the Cross-Complaint.
On July 20, 2020, the Court granted summary
adjudication in favor of Solimar Management LLC and against George Santopietro as
to the second cause of action (breach of the covenant of good faith and fair
dealing) in the Complaint.
On April 13, 2021, Jeff Wiseman (now without
Solimar Management LLC) filed his First Amended Cross-Complaint (“Wiseman
FACC”).
On May 5, 2021, George Santopietro filed his
Answer to the Wiseman FACC.
On June 30, 2023, by request of George
Santopietro, the Clerk’s Office dismissed without prejudice Lia Vasdekis from
the Complaint.
On January 19, 2024, James Harden filed: (1)
Answer to the Complaint; and (2) Cross-Complaint against “Beverly Park North
Homeowners Association” and “Vmw Trust.”
On January 22, 2024, James Harden filed his
First Amended Cross-Complaint (“Harden FACC”) against “North Beverly Park
Homeowners Association” and “V.M. Rosich.”
On January 26, 2024, George
Santopietro filed his First Amended Complaint (“Santopietro FAC”).
On February 5, 2024, Patrick Michael
filed his First Amended Answer to the Santopietro FAC.
On February 5, 2024, Capital
Investment Realty Group, LLC filed its First Amended Answer to the Santopietro FAC.
On February 6, 2024, James Harden
filed his First Amended Answer to the Santopietro FAC.
On February 6, 2024, Jeff Wiseman
and Solimar Management LLC filed their First Amended Answer to the Santopietro FAC.
On February 20, 2024, the Court
found related cases 19STCV32597 and 23STCV19315, and designated 19STCV32597 as
the lead case.
On April 5, 2024, the Court
sustained V.M. Rosich’s Demurrer to the Harden FACC and dismissed with
prejudice V.M. Rosich from the Harden FACC.
On April 4, 2024, George Santopietro
filed his Motion to Bifurcate. In support of his Motion to Bifurcate, George
Santopietro concurrently filed Declaration of Robert H. Bisno.
On April 10, 2024, Jeff Wiseman and
Solimar Management LLC filed their Motion for Summary Adjudication (“Wiseman
MSJ”) as to the Santopietro FAC. In support of the Wiseman MSJ, Jeff Wiseman
and Solimar Management LLC concurrently filed: (1) Exhibit Binder; and (2)
Separate Statement.
On April 11, 2024, Patrick Michael
and LA Estate Rentals LLC filed their Motion for Summary Judgment or Summary
Adjudication (“Michael MSJ”) as to the Santopietro FAC. In support of the
Michael MSJ, Patrick Michael and LA Estate Rentals LLC concurrently filed: (1)
Exhibit Binder; and (2) Separate Statement.
On April 11, 2024, James Harden
filed his Motion for Summary Judgment or Summary Adjudication (“Harden MSJ”) as
to the Santopietro FAC. In support of the Harden FAC, James Harden concurrently
filed: (1) Exhibit Binder; and (2) Separate Statement.
On April 16, 2024, George
Santopietro filed “Notice of Naming 2 Doe Defendants.” George Santopietro
substituted Does 1 and 2 with “Lil Baby” and “Lil Baby Touring”, respectively.
On April 18, 2024, George
Santopietro filed another “Notice of Naming 2 Doe Defendants.” George
Santopietro substituted Does 3 and 4 with “George Kahwaji” and “Rodeo Realty
Inc.”, respectively.
On April 24, 2024, James Harden,
Patrick Michael, LA Estate Rentals LLC, Jeff Wiseman, and Solimar Management
filed their Response to the Motion to Bifurcate.
On May 2, 2024, the Court sustained North
Beverly Park Homeowners’ Association (“the HOA”) Demurrer to the second cause
of action for (contract liability of indemnity) in the Harden FACC.
On May 8, 2024, the Court granted
James Harden’s ex parte application for a court order regarding proof of
service and ordered George Santopietro to notify James Harden within five days
of serving any new parties.
On May 8, 2024, George Santopietro
filed two proofs of service: (1) a proof of service regarding George Kahwaji
and Rodeo Realty; and (2) a proof of service regarding Lil Baby Touring.
On May 20, 2024, George Kahwaji and
Rodeo Realty specially appeared to file their Motion to Quash Service of
Summons (“Kahwaji and Rodeo Realty Motion to Quash”).
On May 21, 2024, Lil Baby Touring
specially appeared to file its Motion to Quash Service of Summons (“Lil Baby
Touring Motion to Quash”).
On May 22, 2024, the HOA filed its
Answer to the Harden FACC.
On May 28, 2024, James Harden filed
his Motion to Compel Attendance of Glaser at the Deposition of Cross Defendant
North Beverly Park (“Motion to Compel Deposition”). In support of his Motion to
Compel Deposition, James Harden concurrently filed Declaration of Raymond
Bekeris.
On June 3, 2024, George Santopietro
filed his Oppositions to both the Kahwaji and Rodeo Realty Motion to Quash and
the Lil Baby Touring Motion to Quash. In support of each opposition, George
Santopietro concurrently filed: (1) Declaration of George Santopietro; and (2)
Declaration of Robert H. Bisno.
On June 7, 2024, George Kahwaji and
Rodeo Realty filed their Reply in support of the Kahwaji and Rodeo Realty
Motion to Quash.
On June 7, 2024, Lil Baby Touring
filed its Reply in support of the Lil Baby Touring Motion to Quash.
On June 7, 2024, the HOA filed its
Opposition to the Motion to Compel Deposition. The HOA concurrently filed: (1)
Declaration of Shari Glazer; (2) Declaration of Sydney L. Preston; and (3)
Proposed Order. The Opposition to the Motion to Compel Deposition includes a
Request for Sanctions.
On June 10, 2024, George Santopietro
filed three separate oppositions to each of the Wiseman MSJ, Michael MSJ, and
Harden MSJ. In support of each of his three oppositions, George Santopietro
concurrently filed: (1) Declaration of George Santopietro; (2) Declaration of
Destiny Reed; (3) Declaration of Robert H. Bisno; and (4) Separate Statement.
On June 10, 2024, James Harden filed
his Reply in support of his Motion to Compel Deposition.
On July 1, 2024, James Harden,
Patrick Michael, LA Estate Rentals LLC, Jeff Wiseman, and Solimar Management
filed their Motion to Extend the Trial Date to at Least September 3, 2024
(“Motion to Continue Trial”).
On July 8, 2024, James Harden filed
his Reply in support of the Harden MSJ. James Harden concurrently filed: (1)
Reply Exhibit Binder; and (2) Reply Separate Statement.
The Motions to Quash
A. Legal
Standard
“A
summons may be served by personal delivery of a copy of the summons and of the
complaint to the person to be served. Service of a summons in this manner is
deemed complete at the time of such delivery. The date upon which personal
delivery is made shall be entered on or affixed to the face of the copy of the
summons at the time of its delivery. However, service of a summons without such
date shall be valid and effective.” (Code Civ. Proc., § 415.10.)
“A defendant, on or before the last day
of his or her time to plead or within any further time that the court may for
good cause allow, may serve and file a notice of motion for one or more of the
following purposes: (1) To quash service of summons on the ground of lack of
jurisdiction of the court over him or her.” (Code Civ. Proc., §
418.10, subd. (a)(1).)
“When the plaintiff is ignorant of
the name of a defendant, he must state that fact in the complaint, or the
affidavit if the action is commenced by affidavit, and such defendant may be
designated in any pleading or proceeding by any name, and when his true name is
discovered, the pleading or proceeding must be amended accordingly; . . . The
certificate or affidavit of service must state the fictitious name under which
such defendant was served and the fact that notice of identity was given by
endorsement upon the document served as required by this section. . . .” (Code
Civ. Proc., § 474.)
“When a complaint sets forth a cause of action against a
defendant designated by a fictitious name and his true name thereafter is
discovered and substituted by amendment, he is considered a party to the action
from its commencement so that the statute of limitations stops running as of
the date the original complaint was filed. For this rule to apply, it is necessary
that the plaintiff actually be ignorant of the name or identity of the
fictitiously named defendant at the time the complaint is filed. The phrase
‘when the plaintiff is ignorant of the name of a defendant’ in section 474 has
not been interpreted literally. It includes situations where the plaintiff
‘knew the identity of the person but was ignorant of the facts giving him a
cause of action against the person, or knew the name and all the facts but was
unaware that the law gave him a cause of action against the fictitiously named
defendant and discovered that right by reason of decisions rendered after the
commencement of the action.’ ‘The lack of knowledge of the true name of a defendant, however, must be ‘real and
not feigned.’ A plaintiff must actually be ignorant of the facts giving him a
cause of action against a defendant. ‘Ignorance of the facts is the critical
issue.’ ‘The pivotal question in this regard is ‘did plaintiff know facts?’ not ‘did plaintiff know or believe that [he] had a cause
of action based on those facts?’’ The question of the plaintiff's good
faith in this regard is for the determination of the trial court.” (Hazel v.
Hewlett (1988) 201 Cal.App.3d 1458, 1464–1465, italics in original,
quotations and other citations omitted.)
“If the terms of Code of Civil Procedure section 474 have not
been complied with, the purported defendant has not been named as such in the
complaint. A service upon one not named in a complaint does not confer
jurisdiction to proceed upon the complaint against him, and a motion to quash
is proper. If such a proper motion is not granted, he is entitled to mandamus.”
(Maier Brewing Co. v. Flora Crane Serv., Inc. (1969) 270 Cal.App.2d 873,
875, citations omitted.)
B. Discussion
1. The Parties’
Arguments
George Kahwaji, Rodeo Realty, and Lil Baby Touring move the Court to
quash the proofs of service of summons filed against each of them. (Lil Baby
Touring Motion to Quash, p. 9:4; Kahwaji and Rodeo Realty Motion to Quash, p.
5:25.)
They all make the same arguments: (1) that a motion to quash can be used
to enforce the statute of limitations; (2) that Santopietro should have sued
and served these Doe Defendants at the time he filed his Complaint; (3) that
the evidence shows George Santopietro knew about the music video prior to
filing his Complaint; and (4) that there is authority for the use of affidavits
or declarations on a motion to quash service. (Lil Baby Touring Motion to
Quash, pp. 4:14–15, 5:20–25, 7:11–16, 7:17–22, 8:25–27; Kahwaji and Rodeo
Realty Motion to Quash, pp. 4:18–19, 5:26–6:3, 7:22–8:2, 9:9–11.)
George Santopietro disagrees,
arguing: (1) that naming a doe defendant is straightforward as it relates back
to the filing of the lawsuit; (2) that George Santopietro did not have
sufficient facts to name George Kahwaji, Rodeo Realty, or Lil Baby Touring as
named defendants when the Complaint was originally filed; (3) that the standard
in naming a doe defendant is what the complaining party knew at the time the
pleading was filed; (4) that the moving parties do not carry their burden to
quash the proofs of service of summons; and (5) that the moving parties do not
offer any evidence to support legally cognizable prejudice. (Opposition to Lil
Baby Touring Motion to Quash, pp. 4:25–27, 6:12–16, 8:16–17, 9:22–23;
Opposition to Kahwaji and Rodeo Realty Motion to Quash, pp. 5:7, 7:11–14,
10:4–5, 11:22–23.)
George Kahwaji, Rodeo Realty, and
Lil Baby Touring reply: (1) that George Santopietro is misguiding the Court;
(2) that George Santopietro did not contradict the evidence and is presenting
“a mirage of arguments”; and (3) that George Santopietro’s other arguments are
duplicative or irrelevant. (Reply re: Lil Baby Touring Motion to Quash, pp.
1:23, 3:3, 4:11; Reply re: Kahwaji and Rodeo Realty Motion to Quash, pp. 1:23, 3:3,
5:14.)
2.
Lil Baby
Touring Motion to Quash
Lil Baby Touring submits evidence that suggests George Santopietro was
aware at and before the time the Complaint was filed that a “photography shoot”,
“unauthorized music video” and/or “rock video” had taken place on the property
“in clear violation of the lease.” (Lil Baby Touring Motion to Quash, Exh. 1,
p. 5:11–12 [actual page 17 of 38]; Exh. 2, p. 2 [actual page 24 of 38]; Exh. 3,
p. 3:3 [actual page 29 of 38].)
However, Lil Baby Touring does not submit any evidence that indicates
George Santopietro knew the name or identity of Lil Baby Touring at or before
the time the Complaint was filed.
Further, George Santopietro declares under penalty of perjury that at the
time the Complaint was filed he “did not know the identity of Defendant Lil
Baby Touring, or defendant Lil Baby, a rap musician who on information and
belief, owns Lil Baby Touring, LLC. I did not know that Defendant was a
participant or related to a participant who filmed or caused a video to be
filmed when the original Complaint was filed.” (Decl. Santopietro in support of
Opposition to Lil Baby Touring Motion to Quash, ¶ 2.)
Based on the evidence submitted to the Court at this time, it appears
that, at the time the Complaint was filed, George Santopietro was actually
ignorant of the name and identity of Lil Baby Touring (as well as of Lil Baby).
Thus, the requirements of Code of Civil Procedure section 474 have been met as
to Lil Baby Touring and this amendment relates back to the filing of the
Complaint for statutes of limitations purposes.
For that reason, the Court DENIES the Lil Baby Touring Motion to Quash.
However, the Court is concerned that the mandatory service provisions in
Code of Civil Procedure sections 583.210 through 583.250 are at issue here. The
Court ISSUES an order to show cause for _______, 2024 as to why Lil Baby and Lil Baby
Touring should not be dismissed from this matter for failure to timely serve
them.
3.
Kahwaji
and Rodeo Realty Motion to Quash
Among other things, George Kahwaji and Rodeo Realty submit multiple
emails from August 17 and 18, 2019 that include George Kahwaji and George
Santopietro. (Kahwaji and Rodeo Realty Motion to Quash, Exh. 3, pp. 5–6 [actual
pages 32–33 of 54]; Exh. 4, pp. 1–3 [actual pages 35–37 of 54]; Exh. 5, pp. 3,
5 [actual pages 41, 43 of 54].) Notably, these communications: (1) reference
the alleged underlying conduct at issue (that more people were present and more
acts under done on the property than were allowed under the lease); (2)
specifically reference George Kahwaji at his Rodeo Realty email address; and
(3) pre-date the September 12, 2019 filing of the Complaint.
In addition, George Kahwaji and Rodeo Realty submit emails between George
Santopietro and his lawyer that document a phone conversation that occurred on
or around August 26, 2019 between George Santopietro and George Kahwaji.
(Kahwaji and Rodeo Realty Motion to Quash, Exh. 2, pp. 1–4 [actual pages 23–26
of 54].) These emails indicate that George Santopietro communicated with George
Kahwaji (as well as Rodeo Realty via George Kahwaji) about the alleged
underlying conduct prior to George Santopietro filing his Complaint.
George Santopietro declares under penalty of perjury that when he filed
the Complaint in September 2019:
“I
did not know Kahwaji took actions and failed to take actions that were either
adverse to my interests or did not further my interests or were not in
compliance with my directions. This includes [Kahwaji] failing to personally
tell James Harden (‘Harden’) of the limitations and restrictions of renting my
property . . . . At the time of the filing of the original complaint Kahwaji
lead [sic] me to believe he had personally met with Harden, as I asked him to
do. It was not until I read the Deposition of Jef [sic] Wiseman, the Deposition
of Harden and further discussions with my attorney that I realized that Kahwaji
did not followed [sic] my directions, had mis represented [sic] to me and
should be named as a Defendant. If I had sufficient facts when I caused the
original complaint to be filed I would have named Kahwaji and Rodeo Realty, but
based on what I knew at the time I didn’t possess sufficient facts and didn’t
want to name them without having sufficient facts.”
(Decl. Santopietro
in support of Opposition to Kahwaji and Rodeo Realty Motion to Quash, ¶ 3.)
The Court considers the evidence presented, including matters of
credibility and relevancy.
First, the Court is concerned that it has not been presented with all of
the evidence regarding this matter. However, the Court does not have any reason
to believe that the emails presented are not authentic and from the time
periods stated.
Second, the Court has serious concerns about the credibility of George
Santopietro’s current declaratory statement. This is because none of the emails
from the period between when the alleged underlying conduct occurred and when
the Complaint was filed indicate that George Santopietro actually instructed
George Kahwaji to personally meet with James Harden. Rather, the emails
indicate: (1) that George Santopietro and George Kahwaji had been in contact
regarding the lease prior to the alleged underlying conduct occurring; (2) that
George Santopietro and George Kahwaji had been in contract regarding the
alleged underlying conduct after it occurred but before the Complaint was
filed; and (3) that George Santopietro and George Kahwaji had a conversation on
or around August 26, 2019 that involved George Santopietro’s questions and
instructions about what George Kahwaji should do or did do with Lia Vasdekis,
not directly with James Harden.
Third, George Santopietro and Counsel Bisno do not provide the Court with
any evidence regarding the depositions of James Harden, Jeff Wiseman, or
further conversations between Santopietro and Bisno (which presumably would
involve a waiver of attorney-client privilege). These are items that George
Santopietro specifically points to for why he now has facts that he did not
previously have. As the Court has not been provided with these items, the Court
cannot further consider them in connection with the claim that George
Santopietro has actually discovered new facts for the purposes of relating back
newly-named defendants to overcome any lapsed statutes of limitations.
Finally, to recap, the instant issue
is whether it is too late for George Santopietro to sue George Kahwaji and
Rodeo Realty. For the purposes of this issue, it is irrelevant whether George
Kahwaji told James Harden personally about the limitations and restrictions of
the property or whether George Kahwaji told James Harden’s representative(s)
about the limitations and restrictions of the property. This is because emails
presented to the Court show: (1) that George Santopietro knew the name and
identity of George Kahwaji and Rodeo Realty before the Complaint was filed; (2)
that George Santopietro not only knew the name and identity of George Kahwaji
and Rodeo Realty before the Complaint was filed but also had an established
business relationship with them, as they had all previously worked together on
leasing the property “to DJ Kalhed [sic] for $150,000”; and (3) that George
Santopietro talked with George Kahwaji about the underlying conduct and other
facts at issue prior to filing his Complaint. Thus, regardless of whether
George Santopietro instructed George Kahwaji to directly tell James Harden
about the restrictions on the property, and regardless of whether George
Kahwaji actually did so, George Santopietro had more than enough information about
George Kahwaji, Rodeo Realty, and their role (or lack of a role, as it might
be) in the alleged underlying conduct to decide whether to sue them before
filing the Complaint.
Based on the evidence submitted to the Court at this time, it appears
that, at the time the Complaint was filed, George Santopietro knew the name and
identity of George Kahwaji and Rodeo Realty, as well as sufficient facts to
know whether to sue them. Thus, the requirements of Code of Civil Procedure
section 474 have not been met as to George Kahwaji and Rodeo Realty, and the
amendments naming them as defendants do not relate back to the filing of the
Complaint for statutes of limitations purposes.
It has been nearly five years since
the Complaint was filed in this matter. The Parties do not make arguments about
whether the applicable statutes of limitations, all of which are four years or
less, would be extended, tolled, or affected for any other reason. The Parties
have thus waived any such arguments.
As
it appears all the statutes of limitations in the relevant pleading have
elapsed, George Santopietro is time barred from suing George Kahwaji and Rodeo
Realty in this matter. Service cannot be maintained on an improper suit.
C. Conclusion
The Lil Baby Touring Motion to Quash is DENIED.
An order to show cause is ISSUED for _______, 2024 as to why Lil Baby and Lil Baby
Touring should not be dismissed from this matter for failure to timely serve
them.
The George Kahwaji and Rodeo Realty Motion to Quash is
GRANTED. The Proof of Service regarding George Kahwaji and Rodeo Realty is
QUASHED. George Kahwaji and Rodeo Realty are DISMISSED WITH PREJUDICE from the Santopietro
FAC.
The Motions for
Summary Judgment or Adjudication
A.
Legal
Standard
“A party may move for summary
judgment in an action or proceeding if it is contended that the action has no
merit or that there is no defense to the action or proceeding. The motion may
be made at any time after 60 days have elapsed since the general appearance in
the action or proceeding of each party against whom the motion is directed or
at any earlier time after the general appearance that the court, with or
without notice and upon good cause shown, may direct.” (Code Civ. Proc., §
437c, subd. (1)(a).)
“[T]he party moving for summary
judgment bears the burden of persuasion that there is no triable issue of fact
and that he is entitled to judgment as a matter of law. That is because of the
general principle that a party who seeks a court’s action in his favor bears
the burden of persuasion thereon. There is a triable issue of material fact if,
and only if, the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in accordance with
the applicable standard of proof.” (Aguilar v. Atl. Richfield Co. (2001)
25 Cal.4th 826, 850, citation omitted.)
“[T]he party moving for summary
judgment bears an initial burden of production to make a prima facie showing of
the nonexistence of any triable issue of material fact; if he carries his
burden of production, he causes a shift, and the opposing party is then
subjected to a burden of production of his own to make a prima facie showing of
the existence of a triable issue of material fact.” (Aguilar, supra, at p. 850; Smith v. Wells Fargo
Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474, [applying the summary judgment
standards in Aguilar to motions for summary adjudication].)
“On a summary judgment motion, the court
must therefore consider what inferences favoring the opposing party a
factfinder could reasonably draw from the evidence. While viewing the evidence
in this manner, the court must bear in mind that its primary function is to
identify issues rather than to determine issues. Only when the inferences are
indisputable may the court decide the issues as a matter of law. If the
evidence is in conflict, the factual issues must be resolved by trial.” (Binder
v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839, citation omitted.)
“The trial court may not weigh the
evidence in the manner of a fact finder to determine whose version is more
likely true. Nor may the trial court grant summary judgment based on the
court's evaluation of credibility.” (Binder, supra, at p. 840,
citations omitted; see also Weiss v. People ex rel. Dep’t of Transp.
(2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or
summary adjudication may not weigh the evidence but must instead view it in the
light most favorable to the opposing party and draw all reasonable inferences
in favor of that party”].)
“On a motion for summary
adjudication, the trial court has no discretion to exercise. If a triable issue
of material fact exists as to the challenged causes of action, the motion must
be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's
Wharf Bay Cruise Corp. v. Super. Ct. (2003) 114 Cal.App.4th 309, 320,
citation omitted.)
B.
Discussion
1.
The
Parties’ Arguments
Jeff Wiseman, Solimar Management LLC, Patrick Michael, LA Estate Rentals
LLC, and James Harden move for summary judgment as to the Santopietro FAC.
(Wiseman MSJ, p. 2; Michael MSJ, p. 2; Harden MSJ, p. 2.)
Jeff Wiseman and Solimar Management LLC make the following arguments: (1)
that the five parties did not do
anything to damage or mislead George Santopietro; (2) that George Santopietro
allowed all the visitors; (3) that the evidence proves there was no intent to
defraud; (4) that there was no evidence of another rate for more than fifteen
people at the real property; (5) that the allegations in the Santopietro FAC
are either general, conclusory, or entirely based on information and belief;
(6) that George Santopietro admitted he did not give James Harden the HOA Rules
or written notice of any rule violation; (7) that the contract was not breached
because no more than seven people “resided” at the real property; (8) that it
is not fraud to have a different understanding of terms and conditions of a contract;
(9) that there is no support for the unfair business practices claim because
there is no support for the fraud claim; (10) that in regards to Penal Code
section 496, the Legislature could not have intended to apply the treble
damages remedy to wrongful conduct committed in the context of a joint venture
or preexisting business relationship where ordinary fraud and breach of
contract remedies would be available; and (11) that there is no evidence that
property was stolen or that such property was received. (Wiseman MSJ, 4:7,
4:11–12, 6:1–2, 6:14–15, 7:12–16, 8:22–9:2, 9:5–9:8, 10:5–8, 11:16–20.)
Patrick Michael and LA
Estate Rentals LLC make essentially the same arguments as Jeff Wiseman and
Solimar Management. (Michael MSJ, pp. 4:10 (that there is no evidence to
support the claims), 6:14 (that there was no intent to defraud), 8:10–14 (that
the evidence is all general, conclusory, or based on information and belief),
9:12–16 (that George Santopietro admits he did give James Harden the HOA Rules,
tell him that no visitors were allowed, or give him notice of a rule
violation), 9:19–23 (that no more than seven people resided at the property and
that it is not fraud to have different understandings of terms and conditions
of contracts), 10:1–4 (that there is no basis for an unfair business practices
claim because there is no basis for the fraud claim), 11:1–4 (regarding the
Legislature’s intent as to Penal Code section 496), and 12:12–16 (that there is
no evidence of stolen property or receiving such property).)
So does James Harden. (Harden MSJ,
pp. 3–12.)
In each of his oppositions, George
Santopietro makes the following arguments: (1) this is not these parties’ first
attempt at summary judgment/summary adjudication; (2) that summary judgment
must be denied if there are any controverted material issues of fact; (3) that
the elements for breach of contract are present here; (4) that the elements for
fraud and fraud in the inducement are present here; (5) that the elements for
an unfair competition claim are present here; (6) that the elements for a
violation of Penal Code section 496 are present here.
Only James Harden has replied, and
his reply reiterates the same arguments as before.
2.
Discussion
The Court recognizes that there has been a prior motion for summary
judgment or summary adjudication filed in this matter. (See Motion for Summary
Judgment or in the Alternative Summary Adjudication, filed by Solimar
Management LLC on March 9, 2020.) Notably, summary adjudication was granted to
the second cause of action in the Complaint for breach of the covenant of good
faith and fair dealing. (See Minute Order dated July 20, 2020, p. 1; see also
Ruling dated July 20, 2020, p. 5.) Because the relevant pleading has since been
amended and other parties are all making arguments on the same bases, the Court
does not see a procedural issue with any of these motions for summary judgment
or adjudication.
As to the substantive issues, the Court notes that some of the arguments
put forward by the moving parties are meritless.
For example, the moving parties argue about the definition of “reside”
without providing the rest of the paragraph in which it appears.
“4.
AUTHORIZED USE AND GUESTS: The Premises are for the sole use as a
personal vacation residence by not more than 7 adults and children. [] (If checked) In addition to the
Occupant identified in paragraph 1, only the following shall reside at the
Premises: Any more than 15 people on the property constitutes an event
and is subject to HOA and Landlord approval. James Harden & Guests. (“Authorized Guests”). No other guests,
visitors or persons are permitted. If the Premises are used, in any way, by
more or different persons than those identified in this paragraph, (i)
Occupant, Authorized Guests and all others may be required to immediately leave
the Premises or be removed from the Premises; (ii) Occupant is in breach of
this Agreement; and (iii) Occupant forfeits its right to return of any security
deposit.” (FAC, Exh. A, p. 1, ¶ 4.)
Moving parties then argue that it is not fraud to have a different
understanding of a contract’s terms and conditions.
Put kindly, these arguments are red herrings.
There are often many ways to breach a contract. In this situation, the
paragraph above lists many specific restrictions that could have been breached
given the evidence submitted by George Santopietro. (See, for example, Decl.
Santopietro in Opposition to Harden MSJ, ¶ 9 [“James Harden had at least 2
parties and/or special events where more than 30 people attended . . . . This
was not permitted under the Contract and represented a material breach of the
Contract by Defendant.”].)
Moreover, the understanding one actually had of a contract’s terms and
conditions is a triable issue of material fact. That said, some contract terms
are unambiguous. Thus, to the extent one merely was reckless in not knowing
what a contract’s unambiguous term meant, that could still be sufficient to
find that person liable for fraud. (See Yellow Creek Logging Corp. v. Dare (1963)
216 Cal.App.2d 50, 55, citations omitted [“However false representations made
recklessly and without regard for their truth in order to induce action by
another are the equivalent of misrepresentations knowingly and intentionally
uttered.”].) Even if one truly did not believe an unambiguous contract meant
what that contract meant, such a belief would be unreasonable, and that person
could still be liable for negligent misrepresentation. (See Gagne v. Bertran
(1954) 43 Cal.2d 481, 487–488.)
Ultimately, the vast majority of
these issues are not amenable to resolution on a motion for summary judgment or
adjudication because they clearly involve triable issues of material fact. Put
differently, as to the first four causes of action, the five moving parties
meet their initial burden by claiming that there is no evidence that
demonstrates they are liable for the causes of action pleaded against them, but
George Santopietro meets his subsequent burden by showing that there are
multiple triable issues of material fact as to each of these causes of action.
The only item as to which summary
adjudication is appropriate is the fifth cause of action for violation of Penal
Code section 496.
“Every person who buys or receives
any property that has been stolen or that has been obtained in any manner
constituting theft or extortion, knowing the property to be so stolen or
obtained, or who conceals, sells, withholds, or aids in concealing, selling, or
withholding any property from the owner, knowing the property to be so stolen
or obtained, shall be punished by imprisonment in a county jail for not more
than one year, or imprisonment pursuant to subdivision (h) of Section 1170. . .
.” (Pen. Code, § 496, subd. (a).)
“Any person who has been injured by
a violation of subdivision (a) or (b) may bring an action for three times the
amount of actual damages, if any, sustained by the plaintiff, costs of suit,
and reasonable attorney’s fees.” (Pen. Code, § 496, subd. (c).)
Here, the allegation in the FAC is
that there was a “theft” from George Santopietro by these parties breaching the
contract and defrauding him, which would have entitled him to more money.
Regardless of whether it is true these parties breached the contract and/or
defrauded George Santopietro, such damages are not the proper subject of a
“receiving stolen property” claim pursuant to Penal Code section 496,
subdivision (a). While the statute does contemplate the theft of money as
property, the “money” alleged here did not actually exist, either tangibly or
intangibly. Put differently, this claim is not a proper subject for this cause
of action is because George Santopietro is not suing these parties regarding
some amount that they did in fact contract for and then stole from him;
rather, he is suing them based on arguments that they should have contracted
with him for this amount.
Jeff Wiseman, Solimar
Management LLC, Patrick Michael, LA Estate Rentals LLC, and James Harden meet
their initial burden in arguing as to the fifth cause of action in the
Santopietro FAC by arguing that there is no evidence of stolen property or the
receiving of such property. George Santopietro does not meet his subsequent
burden of demonstrating that there is a triable issue of material fact as to
this cause of action.
C.
Conclusion
The Wiseman
MSJ, Michael MSJ, and Harden MSJ are GRANTED in part.
Summary
adjudication is GRANTED in favor of Jeff Wiseman, Solimar Management LLC, Patrick
Michael, LA Estate Rentals LLC, and James Harden and against George Santopietro
as to the fifth cause of action in George Santopietro’s First Amended Complaint
for violation of Penal Code section 496.
The Wiseman
MSJ, Michael MSJ, and Harden MSJ are DENIED as to all else.
The Motion to Bifurcate
A.
Legal
Standard
“The court may, when the convenience of witnesses, the ends
of justice, or the economy and efficiency of handling the litigation would be
promoted thereby, on motion of a party, after notice and hearing, make an order
. . . that the trial of any issue or any part thereof shall precede the trial
of any other issue or any part thereof in the case
. . . .” (Code Civ. Proc., § 598.)
“The court, in furtherance of convenience or to avoid
prejudice, or when separate trials will be conducive to expedition and economy,
may order a separate trial of any cause of action, including a cause of action
asserted in a cross-complaint, or of any separate issue or of any number of
causes of action or issues . . . .” (Code Civ.
Proc., § 1048, subd. (b).)
“The court shall,
on application of any defendant, preclude the admission of evidence of that
defendant’s profits or financial condition until after the trier of fact
returns a verdict for plaintiff awarding actual damages and finds that a
defendant is guilty of malice, oppression, or fraud in accordance with Section
3294. Evidence of profit and financial condition shall be admissible only as to
the defendant or defendants found to be liable to the plaintiff and to be
guilty of malice, oppression, or fraud. Evidence of profit and financial
condition shall be presented to the same trier of fact that found for the
plaintiff and found one or more defendants guilty of malice, oppression, or
fraud.” (Civ. Code, § 3295, subd. (d).)
B.
Discussion
George Santopietro requests that the Court “bifurcate the trial of
Santopietro’s First Amended Complaint and the Answers and Affirmative defenses
related thereto and the Cross-Complaints against Santopietro, and the Answer
and Affirmative Defenses related thereto, from the Cross-Complaints against the
[HOA] and VM Trust.” (Motion to Bifurcate, p. 5:21–25.)
George Santopietro argues: (1) that the motion is timely; (2) that
bifurcation is appropriate here in a situation where the case does not get to
trial in the statutory time; (3) that the reason the case may not get to trial
on time is because of James Harden; and (4) that bifurcation would aid judicial
efficiency as any indemnity claim would be moot if the opposing parties prevail
against George Santopietro. (Id. at pp. 4:19–20, 5:3–18.)
James Harden, Patrick Michael, LA
Estate Rentals LLC, Jeff Wiseman, and Solimar Management file a “response” that
is also labelled as an “opposition.” (Response, p. 1:15–17.)
They argue that “[b]ifurcation is
appropriate in this case but not for the reasons provided by Santopietro.”
(Response, p. 2:1.) According to these parties, “[t]his case should be
bifurcated to give [James] Harden a chance to get Discovery [sic] from opposing
parties that have been refusing to cooperate.” (Id. at p. 3:7–8.) They
ultimate request that “James Harden and Beverly Park should be Bifurcated [sic]
from the July 29, 2024 trial.” (Id. at p. 3:22.)
The Court disagrees with all of these arguments.
Judicial efficiency would not be served here by holding two trials. This
matter will be resolved in approximately two hours after the Parties submit a
few documents and tender a few witnesses. The indemnity claims will be resolved
at the same time. Bifurcation will only waste more judicial resources.
Furthermore, five years should have been more than enough time to bring
these claims, finish discovery, and try this matter. Even if the Court were to
bifurcate trial, that would only create further issues with the five-year
deadline.
Put simply, the Court has not been presented with any reason that
requires or suggests bifurcation. Rather, there appears to be ample reason to
have one trial in this matter, and to do so before the rapidly approaching
five-year deadline.
C.
Conclusion
The Motion to Bifurcate is DENIED.
The Motion to Compel
Deposition
A.
Legal
Standard
“If, after service of a deposition
notice, a party to the action or an officer, director, managing agent, or
employee of a party, or a person designated by an organization that is a party
under Section 2025.230, without having served a valid objection under Section
2025.410, fails to appear for examination, or to proceed with it, or to produce
for inspection any document, electronically stored information, or tangible
thing described in the deposition notice, the party giving the notice may move
for an order compelling the deponent’s attendance and testimony, and the
production for inspection of any document, electronically stored information,
or tangible thing described in the deposition notice.” (Code Civ. Proc., §
2025.450, subd. (a).)
“If a motion under subdivision (a)
is granted, the court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) in favor of the party who noticed the
deposition and against the deponent or the party with whom the deponent is
affiliated, unless the court finds that the one subject to the sanction acted
with substantial justification or that other circumstances make the imposition
of the sanction unjust.” (Code Civ. Proc., § 2025.450, subd. (g).)
B.
The
Parties’ Arguments
James Harden moves the Court to compel the deposition of Shari Glazer,
who is the President of the HOA. (Motion to Compel Deposition, pp. 4:7–9,
5:2–3.) James Harden
The HOA opposes the Motion to Compel
Deposition, arguing: (1) that Counsel for James Harden did not meet and confer
in good faith regarding the motion; (2) that James Harden is not entitled to
Shari Glazer’s deposition absent a showing of good cause and exhaustion of less
intrusive discovery methods; (3) that James Harden has not exhausted all
available, less intrusive methods of discovery prior to seeking Shari Glazer’s
deposition; (4) that Counsel for James Harden is not entitled to monetary
sanctions; and (5) that the HOA is entitled to monetary sanctions for having to
oppose the motion. (Opp’n to Motion to Compel Deposition, pp. 4:5–6, 5:5–7,
7:2–3, 8:20, 9:9–10.)
In his Reply, James Harden argues:
(1) that his counsel met and conferred regarding the motion; and (2) that the
deponent is not an apex witness. (Reply re: Motion to Compel Deposition, pp.
1:22, 3:21.)
C.
Meet
and Confer
“The motion shall
be accompanied by a meet and confer declaration under Section 2016.040, or,
when the deponent fails to attend the deposition and produce the documents,
electronically stored information, or things described in the deposition
notice, by a declaration stating that the petitioner has contacted the deponent
to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd.
(b)(2).)
Counsel Bekeris, appearing for James
Harden, declares that he repeatedly attempted to meet and confer on this
matter. (Decl. Bekeris, ¶ 2.) He submits evidence of this, and such evidence is
corroborated by multiple emails submitted by Counsel for the HOA. (Decl.
Bekeris, Exh. A; Opp’n to Motion to Compel Deposition, Exh. B–D, F, H–I, J.)
There is a meet and confer
requirement for this motion, and it has been satisfied here.
D.
The
Deposition
The evidence submitted indicates that the deposition for Shari Glazer was
first noticed on April 12, 2024 and to occur on April 28, 2024. (Opp’n to
Motion to Compel Deposition, Exh. A, pp. 1:15, 2:15, 3:4.)
The Motion to Compel Deposition was filed on May 28, 2024—one month after
the deposition did not occur. Thus, the motion was neither untimely nor unripe.
And, as it appears the deposition has yet to occur three months later, the
motion is not moot.
Here, the HOA is “a party to the action”, and thus James Harden is
entitled to the deposition of the HOA’s “officer, director, managing agent, or
employee” “after service of a deposition notice”. (Code Civ. Proc., § 2025.450,
subd. (a).) As to Shari Glazer specifically, there is no indication that this
person—who is “a volunteer officer” for the HOA who “presently serve[s] in the
capacity as board president” and does so “without compensation”—should be
shielded in the manner contemplated by the Court of Appeal in Liberty Mutual
Insurance Company v. Superior Court (1992) 10 Cal.App.4th 1282. (Decl.
Glazer, ¶ 5.) The HOA has not demonstrated that it has any amount of hierarchy,
much less the level of corporate hierarchy that would require the protection of
someone who has enough time that they can volunteer on a board without
compensation. If, in fact, Shari Glazer does not know anything about this
matter, then the deposition will be brief.
E.
Sanctions
The HOA must produce Shari Glazer for a deposition. Thus, monetary
sanctions are not appropriate in favor of the HOA.
James Harden did not request
sanctions in either his motion or his reply. Thus, the Court does not consider
whether such sanctions are appropriate.
F.
Conclusion
The Motion to Compel Deposition is GRANTED. The HOA shall make Shari
Glazer available for deposition within 72 hours of the issuance of this Order.
The HOA’s Request for monetary
sanctions is DENIED.
The Motion to
Continue Trial
James Harden, Patrick Michael, LA
Estate Rentals LLC, Jeff Wiseman, and Solimar Management move the Court to
continue the trial “to September 3, 2024, or to some later date due to the
circumstances that make a trial unfair for Defendants prior to that time.”
(Motion to Continue Trial, p. 2:4–6.)
The court will discuss with the
parties when to schedule this matter for trial.