Judge: Walter P. Schwarm, Case: 30-2022-01289850, Date: 2023-08-08 Tentative Ruling
Motion No. 1:
Defendants’ (Rad Motorworks LLC and Anthony Rumeo) Demurrer to Plaintiffs’ Complaint (Demurrer), filed on 2-21-23 under ROA No. 253, is SUSTAINED in part and OVERRULED in part.
“A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]” C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 (C.A.), provides, “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. [Citation.]”
The Demurrer challenges the first, fifth, sixth, seventh, eighth, ninth, tenth, and eleventh causes of action contained in Plaintiff’s (Essan Sahel) Complaint, filed on 11-1-22 under ROA No. 2, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f). (Demurrer; 9:1-17:9.)
First Cause of Action—Quiet Title:
The Demurrer states, “Plaintiff does not have legal title to the property, the Vehicle, and thus cannot bring a cause of action to quiet title.” (Demurrer; 26:1-2.)
Code of Civil Procedure section 761.020 states, “The complaint shall be verified and shall include all of the following: [¶] (a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any. [¶] (b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession. [¶] (c) The adverse claims to the title of the plaintiff against which a determination is sought. [¶] (d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought. [¶] (e) A prayer for the determination of the title of the plaintiff against the adverse claims.”
Deutsche Bank National Trust Co. v. Pyle (2017) 13 Cal.App.5th 513, 524 (Deutsche), states, “The purpose of a quiet title action ‘is to finally settle and determine, as between the parties, all conflicting claims to the property in controversy, and to decree to each such interest or estate therein as he [or she] may be entitled to.’ [Citation.] Actions to quiet title are governed by section 761.010 et seq. The quiet title plaintiff must file a verified complaint including a description of the property, the basis for the plaintiff's claim of title, the adverse claims the plaintiff seeks to adjudicate, the date as of which the plaintiff seeks to adjudicate those claims, and a prayer for the determination of the plaintiff's title against the adverse claims. (§ 761.020.) A quiet title plaintiff must name as defendants “the persons having adverse claims that are of record or known to the plaintiff or reasonably apparent from an inspection of the property.” (§ 762.060, subd. (b).) Any person who has a claim to the property may appear as a defendant, whether or not they are named in the complaint. (§ 762.050.) ‘Immediately upon commencement of the action’ a quiet title plaintiff must record a lis pendens. (§ 761.010, subd. (b).) [¶] Before entering a judgment quieting title, ‘The court shall examine into and determine the plaintiff's title against the claims of all the defendants. The court shall not enter judgment by default but shall in all cases require evidence of plaintiff's title and hear such evidence as may be offered respecting the claims of any of the defendants, other than claims the validity of which is admitted by the plaintiff in the complaint. The court shall render judgment in accordance with the evidence and the law.’ (§ 764.010, italics added.)”
Here, paragraphs 35-37 of the Complaint sufficiently allege title under Code of Civil Procedure section 761.020, subdivision (b). Therefore, the court OVERRULES the Demurrer as to the first cause of action.
Fifth Cause of Action—Conspiracy to Defraud against Defendants Palladium Auto Leasing, LLC, Wholesale Exotics, Inc, and Michael Simon:
Stueve Brothers Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 323 (Stueve) explains, “ ‘Although conspiracy to commit a tort is not a separate cause of action from the tort itself, alleging a conspiracy fastens liability on those who agree to the plan to commit the wrong as well as those who actually carry it out. [Citation.] The elements of a civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act done in furtherance of the common design. [Citation.]’ [Citations.]” City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 212 (City of Industry) provides, “The elements of a civil conspiracy are (1) the formation of a group of two or more persons who agreed to a common plan or design to commit a tortious act; (2) a wrongful act committed pursuant to the agreement; and (3) resulting damages. [Citation.]”
The Demurrer states, “Plaintiff must allege when and how Defendants, as a third-party bona fide purchaser, became part of the conspiracy and that Defendants had specific knowledge of acts committed by the other defendants (WE/Simon and Coasthills).” (Demurrer; 26:23-26.)
The Complaint sufficiently alleges that Defendants engaged in a conspiracy to defraud Plaintiffs regarding the Vehicle at paragraphs 58-64. The Complaint seeks to impose conspiracy liability on Defendants for conspiring with Defendants—Wholesale Exotics, Inc. and Michael Simon as to the fraud alleged in the second cause of action. Paragraphs 58-64 of the Complaint sufficiently plead the fifth cause of action against Defendants. Therefore, the court OVERRULES the Demurrer as to the fifth cause of action.
Sixth Cause of Action—Conversion:
PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395 (PCO), states, “ ‘A cause of action for conversion requires allegations of plaintiff's ownership or right to possession of property; defendant's wrongful act toward or disposition of the property, interfering with plaintiff's possession; and damage to plaintiff. [Citation.] Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment. [Citation.]’ [Citations.] A ‘generalized claim for money [is] not actionable as conversion.’ [Citations.]” (See also, CACI No. 2100.)
The Demurrer states, “The Vehicle was never converted as Plaintiff never had ownership of the Vehicle.” (Demurrer: 27:14.) Paragraphs 22-31 and 65-70 of the Complaint sufficiently allege ownership. Therefore, the court OVERRULES the Demurrer to the sixth cause of action.
Seventh Cause of Action—Violation of Penal Code section 496:
The Demurrer asserts, “For the same reasons that Plaintiff’s cause of action for conversion fails, Plaintiff thus cannot sustain a claim that Defendants are in violation of Pen. Code § 496 as Defendants have bona fide purchaser status.” (Demurrer; 28:11-14.) Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333, 361 (Siry), states, “Viewing the issue independently as a matter of law, we endorse the analysis of Bell and Switzer — even though, at the same time, we acknowledge that some of the policy considerations highlighted in those cases, and elaborated upon by the appellate court below, give pause. Fundamentally, we agree with the conclusions of Bell and Switzer that section 496(c) is unambiguous, and that read together with sections 496(a) and 484, and in conformity with our standard approach to interpretation [citation], section 496(c) must be understood as yielding the understanding attributed to it in those decisions: A plaintiff may recover treble damages and attorney's fees under section 496(c) when property has been obtained in any manner constituting theft.”
Paragraphs 71-74 adequately plead the seventh cause of action. Therefore, the court OVERRULES the Demurrer to the seventh caused of action.
Eighth Cause of Action—Unfair Competition:
The Demurrer states that Plaintiff “. . . cannot succeed on his other claims, and thus has not predicate claim to establish standing for his claim of unfair competition and violation of Business and Professions Code § 17200.” (Demurrer; 29:5-8.)
Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 351-352 (Bernardo), states, “An ‘unlawful’ business practice or act within the meaning of the UCL ‘is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law. [Citation.]’ [Citation.] The California Supreme Court has explained that ‘[b]y proscribing “any unlawful” business practice, “[Business and Professions Code] section 17200 ‘borrows’ violations of other laws and treats them as unlawful practices” that the unfair competition law makes independently actionable. [Citation.]’ [Citation.]” (Italics in Bernardo.)
McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1473 (McKell), provides, “A business practice is unfair within the meaning of the UCL if it violates established public policy or if it is immoral, unethical, oppressive or unscrupulous and causes injury to consumers which outweighs its benefits. [Citations.] The determination whether a business practice is unfair ‘ “ ‘involves an examination of [that practice's] impact on its alleged victim, balanced against the reasons, justifications and motives of the alleged wrongdoer. In brief, the court must weigh the utility of the defendant's conduct against the gravity of the harm to the alleged victim. . . . [Citations.]’ [Citation.]” ’ [Citation.]”
The court has found that the Complaint adequately pleads causes of action for conspiracy to defraud, conversion, and Penal Code section 496. The allegations that the support these causes of action also are sufficient to plead an unlawful or unfair business practice under Bernardo and McKell. (Complaint, ¶¶ 75-81.) Therefore, the court OVERRULES the Demurrer to the eighth cause of action.
Ninth Cause of Action—Unjust Enrichment:
Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370 (Durell), states, “ ‘[T]here is no cause of action in California for unjust enrichment.’ [Citations.] Unjust enrichment is synonymous with restitution. [Citation.] [¶] ‘There are several potential bases for a cause of action seeking restitution. For example, restitution may be awarded in lieu of breach of contract damages when the parties had an express contract, but it was procured by fraud or is unenforceable or ineffective for some reason. [Citations.] Alternatively, restitution may be awarded where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct. In such cases, the plaintiff may choose not to sue in tort, but instead to seek restitution on a quasi-contract theory. . . . [Citations.] In such cases, where appropriate, the law will imply a contract (or rather, a quasi-contract), without regard to the parties' intent, in order to avoid unjust enrichment.’ [Citation.] [¶] ‘Under the law of restitution, “[a]n individual is required to make restitution if he or she is unjustly enriched at the expense of another. [Citations.] A person is enriched if the person receives a benefit at another's expense. [Citation.]” [Citation.] However, “[t]he fact that one person benefits another is not, by itself, sufficient to require restitution. The person receiving the benefit is required to make restitution only if the circumstances are such that, as between the two individuals, it is unjust for the person to retain it. [Citation.]” ’ [Citation.] As a matter of law, an unjust enrichment claim does not lie where the parties have an enforceable express contract. [Citation.]” (Italics in Durell.) “The elements of an unjust enrichment claim are the ‘receipt of a benefit and [the] unjust retention of the benefit at the expense of another.’ [Citation.]” (Peterson v. Cellco Partnership (Peterson) (2008) 164 Cal.App.4th 1583, 1593.)
Although unjust enrichment may not be a cause of action, Plaintiff has not provided the court with any authority that it is improper to plead a claim for unjust enrichment as a remedy for the purpose of placing Defendants on notice that Plaintiff is seeking restitution. Therefore, the court OVERRULES the Demurrer to the ninth cause of action.
Tenth Cause of Action—Constructive Trust:
Optional Capital, Inc. v. DAS Corp. (2014) 222 Cal.App.4th 1388, 1402 (Optional), provides, “ ‘One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he or she has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.’ (Civ.Code, § 2224.) ‘The case law explains that in order to create a constructive trust as defined in section 2224, three conditions must be satisfied: the existence of a res (property or some interest in the property); the plaintiff's right to that res; and the defendant's acquisition of the res by some wrongful act. [Citations.]’ [Citation.] A constructive trust ‘may be imposed in practically any case where there has been a wrongful acquisition or detention of property to which another is entitled, but the party attempting to establish the constructive trust must establish the claim by clear and convincing evidence.’ [Citation.] Funds may be recoverable under a constructive trust theory where the plaintiff can trace the funds to monies in the defendant's possession. [Citation.]”
The Demurrer asserts, “Here, Plaintiff alleges conversion, conspiracy to defraud, and a quiet title claim to the Vehicle as the wrongdoing that gives rise to a constructive trust. The failure to uphold such allegations of wrongdoings mentioned above makes a claim for equity insufficient. California Civil Code § 2224.” (Demurrer; 30:13-16.)
The court has found that the Complaint adequately pleads causes of action for quiet title, conspiracy to defraud, and conversion. The allegations that the support these causes of action also are sufficient to plead the constructive trust cause of action. Therefore, the court OVERRULES the Demurrer to the tenth cause of action.
Eleventh Cause of Action—Declaratory Relief:
Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 605 (Ludgate), states, “The existence of an ‘actual controversy relating to the legal rights and duties of the respective parties,’ suffices to maintain an action for declaratory relief. (Code Civ. Proc., § 1060.) Code of Civil Procedure section 1060 is clear: ‘Any person interested under a written instrument, . . . or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court ... for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.’ ”
“ ‘The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.’ [Citation.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79 (Cotati); Italics in Cotati.) “ ‘To qualify for declaratory relief, [a party] would have to demonstrate its action presented two essential elements: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [the party’s] rights or obligations.” ’ [Citation.] (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.)
The Complaint does not allege a written agreement or contract between Defendants and Plaintiff. The Complaint’s second cause of action alleges breach of contract against Defendants—Wholesale Exotics, Inc. Since the Complaint does not allege a written agreement or contract between Defendants and Plaintiff, the Complaint does not sufficiently allege a declaratory relief cause of action. Therefore, the court SUSTAINS the Demurrer to the eleventh cause of action.
To the extent the Demurrer relies on Code of Civil Procedure section 430.10, subdivision (f), to challenge the above causes of action, the court OVERRULES the Demurrer. The FAC is not so uncertain as to prevent Defendant from providing an informed response. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695 (Fistes.)
Based on the above, the court SUSTAINS Defendants’ (Rad Motorworks LLC and Anthony Rumeo) Demurrer to Plaintiffs’ Complaint (Demurrer), filed on 2-21-23 under ROA No. 253, as to the eleventh cause of action with 14 days leave to amend from the date of service of the notice of the court’s ruling. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.) The court OVERRULES the Demurrer as to the other causes of action challenged by the Demurrer.
Defendants are to give notice.
Motion No. 2:
Defendants’ (Rad Motorworks LLC and Anthony Rumeo) Motion to Strike Plaintiff’s Complaint (Motion), filed on 2-21-23 under ROA No. 254, is DENIED.
The court DENIES Defendants’ Request for Judicial Notice (RJN), filed on 2-21-23 under ROA No. 244, as immaterial to the court’s decision. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18 (Silverado.)
Code of Civil Procedure section 436, states, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Code of Civil Procedure section 435, subdivision (b)(1), states, “Any party, within the time allowed to respond to a pleading may serve and file, a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342, explains, “Preliminarily, we note a motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer. [Citation.]”
Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, states, “ ‘In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.’ [Citation.] [¶] In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. [Citation.] These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) ‘ “Malice” ’ is defined in the statute as conduct ‘intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.’ [Citations.] ‘ “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.’ [Citation.] ‘ “Fraud” ’ is ‘an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.’ [Citation.]”
“Punitive damages are recoverable in those fraud actions involving intentional, but not negligent, misrepresentations. [Citations.]” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1241 (Alliance).) “If the deception was intentional, then punitive damages are available. [Citation.]” (Benson v. Southern California Auto Sales, Inc. (2015) 239 Cal.App.4th 1198, 1208-1209 (Benson).)
“There is no requirement that a party plead that it is seeking attorney fees, and there is no requirement that the ground for a fee award be specified in the pleadings. [Citations.]” (Yassin v. Solis (2010) 184 Cal.App.4th 524, 533.) Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 497 (Snatchko), explains, “ ‘There is no requirement that the intent to seek attorney fees under section 1021.5 must be pleaded in the underlying action. [Citation.] Such fees are not part of the underlying cause of action, but are incidents to the cause and are properly awarded after entry of a ... judgment[.]’ [Citation.] As there was no requirement they be pled at all, the trial court erred in striking Snatchko's prayer for attorney fees based on a failure to adequately plead their basis and Snatchko's failure to reallege his request for fees in his first amended complaint does not waive or forfeit his ability to seek them at the conclusion of this case.” (Italics in Snatchko.)
With a few exceptions, the Motion seeks to strike significant portions paragraphs 8-92 of Plaintiff’s (Essan Sahel) Complaint filed on 11-1-22 under ROA No. 2. Under Pierson, a motion to strike is not the proper procedure to challenge the defects in a pleading that are subject to a demurrer. The court ruled on Defendants’ Demurrer as discussed above in Motion No. 1. Thus, the court DENIES the Motion to the extent it requests the court to find that the Complaint does not sufficiently plead aiding and abetting (Motion; 13:1-14:9) and conspiracy to defraud (Motion: 14:10-15:26.) Defendants’ Demurrer addressed the conspiracy to defraud cause of action, and did not raise the sufficiency of the aiding and abetting allegations. The court will address the punitive damages allegations.
The Motion states, “Based on the above, the Court must strike Plaintiffs' punitive damages prayer and any reference thereto. Nowhere in the Complaint are there specific details or facts that would support a claim of oppression, fraud, or malice. Similarly, Defendants request that Plaintiff’s request for an award of attorney’s fees in the prayer portion of the Complaint should also be stricken because there are no allegations regarding under any agreement, statute or other law in the Complaint that support an award of attorney’s fees.” (Motion; 12:21-27.)
As discussed above, the court has found that the Complaint sufficiently pleads a cause of action for conspiracy to defraud. Thus, punitive damages are available based on, at a minimum, the conspiracy to defraud cause of action.
Under Snatchko, it is not improper to plead requests for attorneys’ fees. Thus, the court DENIES the Motion to strike the request for attorney’s fees in the prayer portion of the Complaint. The parties should not construe the court’s denial as a finding that Plaintiff can demonstrate a legal basis for the recovery of attorney fees. Any determination as to whether any party is entitled to attorney’s fees shall be determined by properly noticed motions requesting attorney’s fees. The court is merely finding that the request for attorney’s fees is not improper from a pleading standpoint.
Based on the above, the court DENIES Defendants’ (Rad Motorworks LLC and Anthony Rumeo) Motion to Strike Plaintiff’s Complaint filed on 2-21-23 under ROA No. 254.
Plaintiff is to give notice.
Motion No. 3:
Plaintiff’s (Essan Sahel) Motion to Compel Further Responses By Defendant Palladium Auto Leasing, LLC to Plaintiff Essan Sahel’s Inspection Demand, Set Two (Motion) is CONTINUED to 10-10-23 at 9:00 a.m. in Dept C32.
Code of Civil Procedure section 2031.310 provides, “(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: [¶] (1) A statement of compliance with the demand is incomplete. [¶] (2) A representation of inability to comply is inadequate, incomplete, or evasive. [¶] (3) An objection in the response is without merit or too general. [¶] (b) A motion under subdivision (a) shall comply with each of the following: [¶] (1) the motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. [¶] (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040. . . [¶] (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”
Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293 (Clement), states, “ ‘The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain “an informal resolution of each issue.” [Citations.] This rule is designed “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order. . . .” [Citation.] This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes. [Citations.]’ [Citation.]”
As to the meet and confer efforts, the declaration in support of the Motion states, “Our office drafted and served a meet and confer letter voicing the Plaintiff’s dissatisfaction with many of Defendant’s responses to their Demands for Inspections, Set Two. The letter was sent on February 16, 2023, and requested further responses to Demands 13, 15, 17-19, 29-20-33, and 46-47. With the understanding that there was not much time for the Defendant to evaluate the letter and their responses and provide supplemental responses and documents, we offered to extend the timeline, if the Defendant would also agree to extend our deadline to file a motion to compel. This was done in an effort to meaningfully meet and confer on the at-issue responses. A true and correct copy of this meet and confer letter is attached hereto as Exhibit 11. [¶] On February 17, 2023, an email exchange took place between my office and Defendant PALLADIUM’s counsel of record, Omid Shirazi of K&S Law Group, PC. Mr. Shirazi stated that he could not provide responses by the deadline imposed by Plaintiff, but he would not agree to extend the due date for the filing of this motion, and did not respond to our indication that, without an extension, the due date to provide the requested responses was necessary to give Plaintiff time to file the instant Motion to Compel. . . .” (Vanderpool Decl., ¶¶ 14 and 15; Uppercase in Declration.) Plaintiff filed this Motion 2-22-23 which was only six days after Plaintiff initiate a meet and confer with Defendant (Pallaidum Auto Leasing, LLC). (Vanderpool Decl., ¶¶ 14 and 15.)
In response to the meet and confer attempt, Defendant’s attorney wrote, “Moreover, Mr. Shiraizi’s response to this letter only consisted of the following: “Good afternoon, Ms. Peach: [¶] In your Meet and Confer letter sent last night, you provided one day to review the facts and cases you cited and to respond in one day. [¶] I will not be available to meet and confer regarding the issues you raised until after next Wednesday as I have an arbitration evidentiary hearing I am preparing for. Please let me know which time works best for a teleconference on the following dates: February 23‐24, or 27, 2023 to meet and confer in good faith?” (Vanderpool Decl., ¶ 15 and Exhibit 12.)
The parties have not engaged in sufficient attempts to meet and confer regarding this Motion under Clement. The court orders the parties are ordered to engage in additional attempts to meet and confer that include a telephonic or in-person conference no later than 8-31-23. If Defendant agrees to provide further responses or produce additional materials, they shall provide verified further responses and produce such materials no later than 9-15-23. The parties shall file a joint statement no later than 9-22-23, not to exceed five pages, that (1) describes the parties’ attempts to meet and confer pursuant to this order, (2) identifies each discovery request that remains in dispute, and (3) lists all documents, by category, that have been produced. Any further responses served by 9-15-23 shall be attached to the joint statement.
Plaintiff is to give notice.