Judge: Shirley K. Watkins, Case: 20VECV00195, Date: 2023-05-02 Tentative Ruling
If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.
Case Number: 20VECV00195 Hearing Date: May 2, 2023 Dept: T
20VECV00195 TAVISTOCK FREEBIRDS, LLC, A... vs PEOPLE'S PARTY LLC
TENTATIVE RULINGS:
1. MOTION TO ENFORCE SETTLEMENT
[TENTATIVE] ORDER: Cross-Defendant Tilana Toney’s Motion to Enforce Settlement Agreement is DENIED.
Introduction
Cross-Defendant Tilana Toney (Toney) moved to enforce the settlement agreement against Cross-Complainants People’s Party LLC and Gloria Govan (collectively, People’s Party.) The instant “motion” was originally filed as an ex parte application on March 7, 2023. Although moving party was directed to give notice, no notice was filed. Despite this, the matter was briefed by both sides on the merits. The ex parte application is being heard as a noticed motion. People’s Party filed their opposition and Ms. Toney filed a reply.
Discussion
Ms. Toney’s motion requested that People’s Party’s Cross-Complaint be dismissed as to Ms. Toney based upon the settlement agreement entered between People’s Party and 805Escrow, Inc. (805Escrow.) In pertinent part, the Full Release of All Claims (Release) executed by People’s Party required People’s Party to dismiss their Cross-Complaint against 805Escrow and its employees, under which Ms. Toney is argued to be a part. (Swinford Decl., Exh. B, first full paragraph.) It is undisputable that People’s Party alleged that Ms. Toney was an employee/escrow officer at 805Escrow; however, she is also alleged to be an individual. (Cross-Complaint par. 6.) The plain language of the Release showed that People’s Party was releasing its claims against 805Escrow and its employees. Arguably, this should include Ms. Toney for her actions while performing her work duties in her employment by 805Escrow. However, the scope of the Release only addressed a part of the claims alleged against Ms. Toney in the Cross-Complaint. 805Escrow was alleged to be both directly liable for its own breaches and vicariously liable for breaches through its employee (i.e., Ms. Toney.) However, Ms. Toney, as an individual, was alleged to be liable for her own breaches of duty independent from those arising from her employment with 805Escrow. Each cause of action was alleged against Ms. Toney, as an individual. Because the scope of the Release did not identify People’s Party’s claims against Ms. Toney, as an individual, and only identified 805Escrow’s employees, the Release cannot be grounds to dismiss People’s Party’s Cross-Complaint against Ms. Toney, as an individual. The request to dismiss the entire Cross-Complaint as to Ms. Toney is an overreach and not proper based upon the Release as to 805Escrow.
The Motion to Enforce Settlement is DENIED.
2. MOTION TO QUASH SERVICE OF SUMMONS
Cross-defendant Precision Escrow, Inc. moves to quash service of the summons
and cross-complaint filed by People's Party, LLC. According to moving party, Precision is a California corporation which lists its principal place of business and agent for service of process as being 9221 Corbin Ave., Suite 230, Northridge, CA 91324.
The proof of service shows service on 12/17/2020 on Mr. Bhatia for Precision at 5030 E. 2nd St., Suite 206-G, Long Beach, CA 90803.
Mr. Bhatia, who identifies as the agent for service and the CEO of Precision states that Precision has never had an office in Long Beach and that, instead, the address in Long Beach is for Precision Escrow II Inc., a separate entity. He attaches a copy of a Statement for Information for Precision filed 2/9/2022 as evidence that the address for service is not in Long Beach.
The declaration of the registered agent for service of process states that Mr. Bhatia was served by personal delivery at the Long Beach address on 12/17/2020 at 2:07 p.m. This declaration is accorded a rebuttable presumption that it is true.
Ms. Bhatia declares that he was not at the Long Beach address on 12/17/2020 and was not served with the papers. However, he does not state how he recalls this over 2 years ago, what he relies on for that testimony, any documentary evidence in support, any witnesses in support, and evidence of where he purports to have been at the time.
The opposition to the motion states that (a) Precision has already made a general appearance in the action, (2) Precision was properly served. The opposition also attaches a Statement of Information for Precision Escrow, Inc. filed 2/14/2018 showing Mr. Bhatia' s address as agent for service of process for Precision Escrow, Inc. at 5030 E. 2nd St., Suite 206-G, Long Beach, CA 90803.
The motion to quash is denied on this ground.
Concerning the general appearance, other than filing the motion to quash, the court does not see any appearances or documents filed by Precision as a cross-defendant in the People's Party cross-complaint. That ground is overruled.
Therefore, the court finds that there has been proper service of Mr. Bhatia at the address for the agent for service of process, and Precision has failed to provide evidence which rebuts the presumption that the process server's declaration is true.
The motion is denied. Cross-defendant is to respond to the cross-complaint within 30 days.
ORDER TO SHOW CAUSE
The court sets an Order to Show Cause on ______________ AT 8:30 A.M. in Dept. T why monetary sanctions should not issue against Sutesh Bhatia for filing a false declaration pursuant to CCP section 128.5 in the sum of $500, and for attempting to mislead the court . The court will consider whether this tactic was made in bad faith and was frivolous or solely intended to cause unnecessary delay. . Among other things, the 2018 Statement of Information identifies him as the agent at the Long Beach address, his declaration denies any contact with the address., and he presented the 2022 Statement of Information as evidence despite the fact that service occurred in 2020.
A written response to the OSC shall be filed by Mr. Bhatia no later than 5 court days prior to the OSC hearing.
Clerk of the court to give separate notice of the OSC.
3. MOTION TO BE RELIEVED AS COUNSEL
Chad Wilcox and Wilcox Dunakin Chrisopoulos LLP move to withdraw as counsel for Cross-defendant Tilana Toney, aka Lana Toney, aka Tilana J. Toney.
The motion is granted subject to filing proof of service of the conformed order on the client.
The court will modify and signed the order to reflect future hearing dates.