Judge: Stephen P. Pfahler, Case: 22STCV08051, Date: 2025-01-28 Tentative Ruling

Case Number: 22STCV08051    Hearing Date: January 28, 2025    Dept: 68

Dept. 68

Date: 1-28-25

Case #: 22STCV08051

Trial Date: 4-7-25

ADMISSIONS

MOVING PARTY: Plaintiff, Gavrielli Brands, LLC 

RESPONDING PARTY: Unopposed/Defendant, Empire Container Freight Station, Inc.

RELIEF REQUESTED

Motion to Deem Requests for Admissions Admitted

SUMMARY OF ACTION

Plaintiff Gavrielli Brands, LLC imported certain footwear for sale in the United stated under the “Tieks” brand. Third party Catrone Freight Logistics coordinated the importation of the shipment(s) from the Port of Long Beach and storage of the merchandise from the with defendant Empire Container Freight Station, Inc. While Plaintiff utilized the services of Defendant, beginning in 2017, Plaintiff began to discover missing merchandise appearing for sale on eBay. When Plaintiff confronted Defendant, a counter demand for $732,915.50 in storage charges was presented, and denial of access to the property without payment. Plaintiff contends Defendant “stole” at least 21,528 pairs of shoes from the shipments at a retail value of $4.3 million.

On March 7, 2022, plaintiff filed its complaint for Possession of Personal Property, Conversion, Negligence, Promissory Fraud, and Unfair Competition. A 170.6 challenge led to reassignment from Department 51 to 68. On June 14, 2022, Defendant answered and filed a cross-complaint for Breach of Contract, Open Account, and Unfair Business Practices. On December 7, 2022, a first amended cross-complaint was filed. The court sustained the demurrer to the first amended cross-complaint with 20 days leave to amend on February 6, 2023. The second amended cross-complaint was filed on March 2, 2023. On May 16, 2023, the court sustained the demurrer to the second amended cross-complaint without leave to amend.

On January 30, 2024, Empire Container Freight Station, Inc. filed a 170.6 peremptory challenge to the court. The challenge was accepted and the case reassigned. On February 23, 2024, the court (Department 1) entered a subsequent stipulation rescinding the second filed 170.6 peremptory challenge brought by Empire Container Freight Station, Inc., and restoring previously vacated hearings and the trial.

On April 23, 2024, the court granted Plaintiff leave to file a first amended complaint. On April 30, 2024, Plaintiff filed a first amended complaint for Possession of Personal Property, Conversion, Negligence, Promissory Fraud, and Unfair Competition.

RULING: Denied.

Plaintiff Gavrielli Brands, LLC moves to deem Requests for Admissions (set two), number 53, 54 and 60, served on Empire Container Freight Station, Inc., admitted. Plaintiff presents the motion as one to deem admissions admitted, yet provides a separate statement and relies on reference to a prior order of the court deeming said admissions insufficient.

The relied upon responses were served on July 24, 2024. [Declaration of Gilbert Mikalian, Ex. 3.] On September 24, 2024, following the September 19, 2024, hearing, the court deemed the motion to deem admissions admitted moot due to service of said responses. On October 22, 2024, Plaintiff filed the instant motion apparently further challenging the sufficiency of the responses.

To the extent the motion again moves to deem requests for admissions admitted, the motion is denied. The court already deemed the request for admissions moot and denied the motion in the September 24, 2024, order. To the extent Plaintiff now seeks to present an improperly noticed motion to compel further responses admissions, the motion is untimely, as it was filed more than 45 days from the date of the July 24, 2024, responses. (Code Civ. Proc., § 2033.290, subd. (c).) The court otherwise declines to follow the encouraged guidelines found by Judge Stern in the October 25, 2022, minute regarding the inadequacy of the responses and compelling further responses. Again, any such motion deadline lapsed, and the court finds no basis for a de facto unnoticed motion for reconsideration to modify the prior order.

Plaintiff’s Motion for Protective Order scheduled for March 25, 2025. Trial set for April 7, 2025. Any efforts to advance the four ex parte motions to compel further responses currently reserved for July 21, 24, 31, and August 5, 2025, may result in the setting of an OSC re: Appointment of Referee before ANY consideration of the growing list of (attrition purposed) discovery motions presented on this case for the last two+ years.

Plaintiff to give notice.