Judge: Virginia Keeny, Case: 20VECV01388, Date: 2023-05-03 Tentative Ruling
Case Number: 20VECV01388 Hearing Date: May 3, 2023 Dept: W
MARK A. LIKER
v. ELIEZER APPEL, et al.
CROSS-DEFENDANT MARK A. LIKER’S MOTION TO COMPEL OSCAR
BROEDERLOW AND LOCKHART DEVELOPMENT INC. TO RESPOND TO REQUESTS FOR PRODUCTION
OF DOCUMENTS and request for sanctions
Date
of Hearing: April
2, 2023 Trial
Date: None
set.
Department: W Case No.: 20VECV01388
Moving
Party: Plaintiff/Cross-Defendant
Mark A. Liker
Responding
Party: Defendants Oscar Broederlow and
Lockhart Development, Inc.
BACKGROUND
Plaintiff Mark A. Liker alleges
Defendant Eliezer Appel, in his capacity as a California licensed attorney,
instructed Plaintiff to purchase certain real property for $250,000.00 for Defendant
Cochran Inc. and promised Plaintiff a return on his investment as well as plaintiff
would take ownership of the property or that the property would secure Plaintiff’s
investment. Plaintiff further alleges Eliezer Appel concealed from Plaintiff
the fact that plaintiff did not own the property or the company that took title
to the property that is, the Defendant Lockhart Development, Inc., and that
Eliezer Appel took Plaintiff’s investment for his own gain.
On November 24, 2020, Plaintiff Mark A.
Liker filed a complaint against Defendants Eliezer Appel, Lockhart Development,
Inc., and Cochran Inc. asserting a single cause of action for fraud. Plaintiff
filed a First Amended Complaint on October 20, 2022, asserting new causes of
action – breach of contract, negligent misrepresentation, intentional
misrepresentation, and breach of attorney fiduciary duty/duty of loyalty.
On February 11, 2021, Lockhart
Development, Inc. filed a cross-complaint against Mark A. Liker asserting
causes of action for (1) Breach of Written Contract; (2) Intentional or
Negligent Interference with Contractual Relations; (3) Interference with
Prospective Economic Advantage; (4) Breach of Fiduciary Duty; (5) Declaratory
Relief; (6) Implied Contractual Indemnity; and (7) Slander of Title.
On October 20, 2022, Appel filed a
cross-complaint against Liker, the California Neurological Institute, and Avi
Marciano asserting causes of action for (1) Violation of Physician’s Medical
Practice Act (MPA); (2) Undue Influence (CA Welfare & Institutions Code
15610.70); (3) Negligent Infliction of Extreme Emotional Distress (NIED); (4) Intentional
Infliction of Extreme Emotional Distress (IIED); (5) Intentional Interference with
Prospective Economic Advantage; and (6) Civil Extortion.
Liker filed a Special Motion to Strike
against the Lockhart cross-complaint, which was granted in its entirety on July
30, 2021. Thereafter, Liker brought a
motion for attorney fees also pursuant to CCP § 425.16 (c), requesting the
amount of $24,985.00 and costs in the amount of $387.31 totaling $25,372.31
which was granted on November 10, 2021.
Around that same time Lockhart filed an
appeal of the judgment on the antiSLAPP motion and thereafter filed a motion
for a stay of all further proceedings in the case pending the outcome of that
appeal which was granted. Thereafter
Liker brought a motion pursuant to CCP § 917.1 to require Lockhart to post an
appeal bond in the amount of the judgment which was granted by the Court on
February 14, 2022 requiring Lockhart to post a bond. Lockhart did not post the
required bond and the Court lifted the stay on the case.
This action is related to Marc A.
Larocque v. Christine Larocque Franz, et al. (LC105233).
[Tentative] Ruling
Cross-Defendant Mark A. Liker’s Motion
to Compel Oscar Broederlow and Lockhart Development Inc. to Respond to Requests
for Production of Documents and Request for Sanctions is GRANTED.
discussion
Plaintiff/Cross-Defendant Mark A. Liker move the court for an
order compelling Defendants Oscar Broederlow and Lockhart Development Inc. to
respond and produce documents requested in the “NOTICE TO APPEAR AND TO PRODUCE
AT JUDGMENT DEBTOR EXAMINATION” pursuant to Code of Civil Procedure sections
708.030 and 2031.010 to 2031.320. They
also request sanctions pursuant to Code of Civil Procedure section 2031.300
(c).
Code of Civil Procedure section 708.030 provides that a “judgment
creditor may demand that any judgment debtor produce and permit the party
making the demand ... to inspect and to copy a document that is in the
possession, custody, or control of the party on whom the demand is made in the
manner provided in Chapter 14 (commencing with Section 2031.010) of Title 4 of
Part 4, if the demand requests information to aid in enforcement of the money
judgment.” (See Li v. Yan (2016) 247 Cal.App.4th 56, 65 n. 3.)
Liker seeks to compel seven sets of documents, including a copy of
the signed settlement agreement entered into on October 6, 2021 by and between
Marc A. Larocque and Cochran Inc., Lockhart Development Inc. and Oscar Peter
Broederlow, in the Los Angeles Superior Court Case No. LC105233.[1]
Liker contends the Settlement Agreement may provide for the payment of money to
Lockhart and therefore is an asset of the company that Liker is entitled to
inquire about as a part of a debtor examination.
In opposition, Broederlow argues when he appeared for the
examination he was no longer employed by Lockhart. However, he produced all the
documents in his possession, custody and control at the time of the examination
in order to show good faith. Moreover, when Broederlow’s counsel reached out to
Lockhart’s previous counsel, Ms. Farber, for the Settlement Agreement,
Broederlow’s counsel contends Ms. Farber declined due to the fact that she did
not represent Lockhart but only Mr. Broederlow. Broederlow also argues the
Settlement Agreement contains a confidentiality provision and Liker failed to
serve or give notice to all of the parties of the Settlement Agreement. In sum, he contends Liker is seeking documents
from the wrong person and Broederlow has fully complied with Code of Civil
Procedure section 708.030.
The court agrees that Broederlow has complied with his obligations
in responding to post-judgment discovery.
He has appeared in person and remotely on several occasions and has now
represented that he has none of the documents sought by Liker. He represents that he does not have the
settlement agreement and is no longer employed by the company.
The court finds the documents requested from Lockhart are
discoverable under Code of Civil Procedure section 708.030. As noted by Liker,
the documents requested would aid Liker in collecting his judgment. The court
notes Broederlow, in his individual capacity, was a party to the Settlement
Agreement. If the Settlement Agreement is not in Broederlow’s possession, he is
not required to produce it, but Lockhart must produce the document. Mbamalu,
counsel for Broederlow, Lockhart & Cochran in a limited scope, was served
with the document requests. As for Marc
Laroque, the court finds his privacy interests outweighed by the judgment
creditor’s need to ascertain the assets of the judgment debtors. For concerns regarding confidentiality, the
parties may enter a protective order.
Sanctions
Liker seeks $2,445.00 in sanctions pursuant to Code of Civil
Procedure section 2031.300(c) for having to bring the instant motion. Liker
contends such award of sanctions is warranted given the fact that the judgment
debtor has made zero effort to locate and produce any of these documents and
appears to refuse to do so.
In opposition, Broederlow argues this motion to compel is
premature and certainly doesn’t warrant imposing sanctions on Mr. Broederlow or
Lockhart. Broederlow’s counsel offered an IDC which Broederlow contends would
have enabled and facilitate other defendants who were part of the agreement to
weigh in, oppose or just be heard, thus possibly rendering the motion to compel
threatened by Mr. Arnold moot.
The court finds sanctions in appropriate given the complexity of
this dispute, and the privacy rights asserted.