Judge Thomas D. Long, Case Number: 20STCV45494, Date: 2024-01-25 Tentative Ruling

On November 25, 2020, Plaintiffs WC Insurance Agency LLC, Omni Safe Insurance Agency LLC, and Joshua Sawicki filed this action against Defendants James S. Bekhor Insurance Services Inc., JSB Holdings LLC, and James S. Bekhor. Plaintiffs dismissed and James S. Bekhor on October 20, 2021.

On December 12, 2023, Plaintiff Joshua Sawicki filed a motion for summary adjudication of Defendants’ contractual duties and the second cause of action for specific performance.[1]

Sawicki seeks an order requiring Defendants to satisfy their contractual obligations to (1) account for and pay to Sawicki his share of all Net Profits received by Defendants and their Affiliates to date in connection with the operation of all four Acquired Agencies as required by Section 11.01 of the JV Agreement; (2) permit an audit of Defendants’ books and records relating to all four Acquired Agencies as required by Section 11.01 of the JV Agreement; (3) cooperate in the valuation of the parties’ respective interests in the joint venture as of the date of termination of the JV Agreement as required by Section 10.01(c)(ii) of the JV Agreement, and (4) pay to Sawicki the value of his share of the joint venture as of the date of termination of the JV Agreement, as required by Section 10.01(c)(ii) of the JV Agreement. (Motion at p. 12.)

In opposition, Defendants contend that “[t]he agencies which allegedly earned profits which are the subject of this Motion . . . never came within the contours of JV Agreement,” and “Jeremy was not ‘controlled’ by JSB (nor were Jeremy and JBEK subsidiaries of JSB), no separate joint venture agreement was entered into by Jeremy and JSB, and JSB did not receive any profits from Jeremy.” Therefore, the motion should be denied “light of the inherently factual disputes presented.”

“Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are undisputed.” ((United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335 (United Community Church).) “The separate statement ‘provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (Nazir).) “[I]t is no answer to say the facts set out in the supporting evidence and memorandum of points and authorities are sufficient. ‘Such an argument does not aid the trial court at all since it then has to cull through often discursive argument to determine what is admitted, what is contested, and where the evidence on each side of the issue is located.’” (United Community Church, supra, 231 Cal.App.3d at p. 335.) “The due process aspect of the separate statement requirement is self-evident—to inform the opposing party of the evidence to be disputed to defeat the motion.” (Id. at p. 337.)

“The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” (California Rules of Court, rule 3.1350(d)(2).) The parties should not “include in the separate statement every fact they intend to include in their motion, regardless of its materiality.” (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 875.) “The paragraphs in a separate statement should be limited to facts that address the elements of a cause of action or an affirmative defense. (See Code Civ. Proc., § 437c, subd. (b)(1); rule 3.1350(a)(2), (d)(2).) The statute and Rules of Court do not preclude litigants from including background, nonmaterial information in their papers as long as they include a cite to the evidence, but nonmaterial facts should not be included in the separate statement. The point of the separate statement is not to craft a narrative, but to be a concise list of the material facts and the evidence that supports them.” (Ibid.)

Despite the parties’ lengthy separate statements, is not clear to the Court what, if any, material facts are undisputed or disputed. The parties frequently set forth evidentiary facts rather than ultimate facts, which bury the actual undisputed (or disputed) issues that are material to this motion. The separate statements must be revised to include only material facts pertinent to the disposition of the motion.

Plaintiff is ordered to send his revised separate statement to Defendants no later than March 29, 2024.

Defendants are ordered to send their response to Plaintiff’s separate statement, along with Defendants’ revised separate statement of disputed facts, to Plaintiff no later than April 12, 2024.

The parties are ordered to jointly file the revised separate statements and responses no later than April 26, 2024.

The Hearing on Motion for Summary Adjudication is CONTINUED to May 6, 2024 at 8:30 a.m.

During the review of Plaintiff’s motion and proposed order, the Court was concerned about additional issues, for which it orders supplemental briefing:

· Does Plaintiff’s motion for summary adjudication constitute an election of remedy?

· What, if any, issues remain for a jury trial? If the motion is denied, should this action proceed as a bench trial in whole or in part?

· Plaintiff’s proposed order granting the motion includes an order that Defendants “cooperate in the valuation of the parties’ respective interests in the joint venture and its Acquired Agencies as of the date of termination of the JV Agreement.” If the Court grants specific performance, how will that be executed? Would the parties both select appraisers pursuant to JV Agreement § 10.01(c)? Does Plaintiff have the sole right to select an appraiser due to Defendants’ failure to comply with this term before a court order?

· Does JV Agreement § 10.01(c) constitute an arbitration agreement? Could/should the Court order the parties to arbitrate the issues of valuation and the striking of a balance between the parties pursuant to the JV Agreement? What issues in the case (if any) would not be referred to arbitration and how and when would those issues be decided?

· If the Court appoints an accounting referee, how should the referee be instructed? How should questions by the referee be answered? Will a jury and/or the Court need to decide any issues before the Court gives instructions to the referee?

· Should this action be stayed during the any referral to arbitration or accounting?

Simultaneous briefs addressing these issues shall be filed no later than April 19, 2024.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court

[1] The motion states that Plaintiffs WC Insurance and Omni Safe “are no longer pursuing any of the claims in this case, as they are no longer active entities,” and “[t]he only remaining plaintiff pursuing the claims asserted in the complaint is Sawicki.” (Motion at p. 2, fn. 1.) No Notice of Dismissal has been filed.