COMPLAINT February 27, 2020 (2024)

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Ruling

MIDLAND STATES BANK vs RODRIGUEZ SR. TRUCKING INC.

Aug 27, 2024 |CVRI2301071

MIDLAND STATES BANK vsMotion for Turnover Order by MIDLANDCVRI2301071 RODRIGUEZ SR. TRUCKINGSTATES BANKINC.Tentative Ruling: No tentative ruling.

Ruling

All Pure Pool Service of Central California, Inc. vs. Tavarez Williams

Aug 29, 2024 |21CECG01502

Re: All Pure Pool Service of Central California, Inc. v. Williams, et al. Superior Court Case No. 21CECG01502Hearing Date: August 29, 2024 (Dept. 503)Motion: by Defendants for Leave to File Cross-ComplaintTentative Ruling: To grant Defendants Tavarez L. Williams, Phillip A. Roman, and Tactical Splash Bros.,LLC’s motion for leave to file a cross-complaint. Defendants shall file their proposed cross-complaint within 10 days of the clerk’s service of the minute order.Explanation: Leave to file a cross-complaint is to be liberally granted: The legislative mandate is clear. A policy of liberal construction of [Code of Civil Procedure] section 426.50 to avoid forfeiture of causes of action is imposed on the trial court. A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result. Factors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion unless accompanied by bad faith.(Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98–99; see Code Civ. Proc.§426.50; see Bewley v. Riggs (1968) 262 Cal.App.2d 188, 190 [law abhors multiplicity ofactions; intent of Legislature in enacting counterclaim statutes was to settle all claimsbetween parties in one action].) The compulsory cross-complaint statute was designed to prevent a multiplicity ofactions and achieve resolution in single lawsuit of all disputes arising out of commonmatters. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 965; see §426.30(a)[cross-complaint compulsory if defendant’s claims are related to subject matter ofcomplaint; where not raised by cross-complaint, defendant barred from asserting in lateraction].) Causes of action arise out of the “same transaction or occurrence” if the factualor legal issues are logically related, they do not need to be identical. (ZF Micro Devices,Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5th 69, 82-83.) In the case at bench, the claims in the cross-complaint arise out of the samenucleus of facts alleged in the complaint. Specifically, plaintiff All Pure Pool Service ofCentral California, Inc. (“Pure Pool”) is alleging causes of action premised on the allegedmisappropriation of trade secrets by its former employees, defendants Williams andRoman, who have formed a competing pool service business, Tactical Splash Bros., LLC.The cross-complaint alleges causes of action premised on the alleged unlawfulenforcement of non-competition agreements by Pure Pool against its former employees.Both the complaint and cross-complaint allege the other business is interfering with itsrespective contracts to service their customers. It does not appear that the cross-complaint is being filed in bad faith or thatallowing the cross-complaint would cause any undue delay. The cross-complaint seeksto enforce regulations of non-competition agreements that only became effective as ofJanuary 2024 and it does not appear that the scope of discovery is significantly widened.The parties stipulated to close discovery as of April 5, 2024 and defendants at that timeintended to seek leave to file the cross-complaint. Presumably all parties understood thatthere would be no further discovery upon the filing of the cross-complaint, consistent withthe stipulation. Plaintiff Pure Pool has asserted objections to attestations of Mr. Ashley regardingthe merits of the cross-complaint as hearsay, improper legal conclusions, andinadmissible opinion. The objections are sustained but have no bearing on the outcomeof this motion. The court intends to grant defendants’ motion for leave to file the cross-complaint. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: jyh on 8/26/24 . (Judge’s initials) (Date)

Ruling

KENT TRAN VS UTOMO TANI, ET AL.

Sep 03, 2024 |23STCV08305

Case Number: 23STCV08305 Hearing Date: September 3, 2024 Dept: 73 09/03/2024 Dept. 73 Hon. Rolf Treu, Judge presiding KENT TRAN v. UTOMO TANI, et al. (23STCV08305) Counsel for Plaintiff/Cross-Defendants/moving party: Sally Chan (West Themis Law, PC) Counsel for Defendants/Cross-Complainant/ opposing party: T. Randolph Catanese (Catanese and Wells) (1) PLAINTIFF KENT TRANS MOTION FOR SUMMARY ADJUDICATION (filed 05/23/2024) (2) PLAINTIFF KENT TRANS MOTION FOR ORDER FOR APPOINTMENT OF DISCOVERY REFEREE (filed 06/14/2024) (3) CROSS-DEFENDANTS Demurrer TO FIRST CROSS-complaint (filed 07/29/2024) TENTATIVE RULING Plaintiffs Motion for Summary Adjudication is DENIED without prejudice. Plaintiffs Motion for an Order for Appointment of Discovery Referee is DENIED. Cross-Defendants Demurrer to the First Amended Cross-Complaints first, second and third causes of action is SUSTAINED with 20 days leave to amend. I. BACKGROUND On April 13, 2023, Plaintiff Kent Tran (Plaintiff) filed his Complaint against Defendants Utomi Tani aka Jimmy Tani (Jimmy); Yong Sook Kim; Jimmy Tani, Jr.; Lan Sam; Goodland Global Farm Inc.; JT and KT Development LLC; Maie JT & KT Development LLC; True Garlic, Inc.; Goodland Global Mining, Inc.; and nominal Defendant Golden Partner Global Investment, Inc. dba NBC Seafood Restaurant (collectively Defendants). On January 19, 2024, Plaintiff filed a Second Amended Complaint alleging the following causes of action: 1) Intentional misrepresentation/fraud 2) Conversion/embezzlement 3) Declaratory relief 4) Partition by sale 5) Violation of Welfare and Institutions Code § 15600 et seq Financial Elder Abuse 6) Intentional infliction of emotional distress 7) Breach of fiduciary duty 8) Conspiracy 9) Fraudulent transfer/constructive fraud 10) Negligent misrepresentation/fraud 11) Fraud by concealment 12) Breach of written contract 13) Breach of oral contract 14) Inspection of records 15) Accounting 16) Unjust enrichment 17) Involuntary dissolution of corporations 18) Fraudulent transfer 19) CA Penal Code Section § 496(A) 20) Cancellation of instrument pursuant to Civ. Code § 3412 The Complaint alleges the following. In or about 2008, Plaintiff and Jimmy formed several companies, including Goodland Global Farm Inc., (Goodland), JT and KT Development LLC, and Maie JT and KT Development LLC. Plaintiff and Jimmy had agreed to own the companies equally as partners. Plaintiff and Jimmy also decided to jointly invest in another company, NBC Seafood Restaurant (NBC) with Kam Choi Lin, Chang Ho Chen, Wei Lin Zheng and Wai Hung Szeto. Plaintiff alleges that Jimmy engaged in fraud and falsely misrepresented to Plaintiff, among other things, that Plaintiff owned 50% of the Companies when he actually did not, that the Companies were in need of loans and not profitable in order to induce Plaintiff to obtain personal loans, for Plaintiff to sign documents that were related to taking out loans in 2021, and that Plaintiff needed to vacate and sell his home to save the Companies. On February 15, 2024, Defendants (Cross-Complainants) filed a Cross-Complaint against Kam Choi Lin, Chang Ho Chen, Wei Lin Zheng and Wai Hung Szeto (collectively Cross-Defendants). Cross-Complainants filed a First Amended Cross-Complaint (FACC) alleging the following causes of action: 1) Equitable Indemnity and Contribution 2) Indemnity 3) Declaratory relief Cross-Complainants, Cross-Defendants and Plaintiff are shareholders of NBC Seafood Restaurant. The FACC alleges that that any liability held against them pertaining to Plaintiffs allegations, is due to the negligence, carelessness, acts, or omissions of Cross-Defendants. Cross-Complainants are seeking indemnification and contribution for any loss suffered and damages awarded to Plaintiff. Cross-Complainants also seek a declaration that Jimmy has not violated the Bylaws of Golden Partner Global Investment, Inc., and that his actions or omissions were ratified and consented to by Cross-Defendants. A. Parties Motions On May 23, 2024, Plaintiff Kent Tran filed a Motion for Summary Adjudication: · Plaintiff Kent Tran moves for summary adjudication of the SACs first, second, third, fifth, seventh, eighth, ninth, tenth, eleventh, sixteenth, eighteenth, nineteenth and twentieth causes of action. Defendants filed an opposition, arguing: · Defendants did not address the merits of Plaintiff Kent Trans motion. Instead, Defendants argue that under CCP section 437c(h), the Court should deny the motion or continue the hearing to allow Defendants and Cross-Complainants an opportunity to obtain essential evidence from the Plaintiff necessary to oppose the Motion. · Defendants submit their counsels declaration stating that essential evidence exists, specifically oral testimony and documents of Plaintiff and the Cross-Defendants, but cannot be presented in opposition to Plaintiffs Motion due to intervening acts of Plaintiffs counsel and Plaintiffs refusal to make himself available for deposition or to make the Cross-Defendants available for deposition. Plaintiff did not file a reply. On June 14, 2024, Plaintiff filed a Motion for Appointment of Discovery Referee, arguing: · Plaintiff moves for an order referring this action to a qualified discovery referee to hear and determine all discovery motions and disputes relevant to discovery herein, including, but not limited to, disputes pertaining to imposition of sanctions, and to report findings and make recommendations thereon. This motion will be made based on the authority of Cal. Code Civ. Proc. §639(a)(5) and (d)(2) on the grounds that exceptional circ*mstances require the reference. · Plaintiffs counsels have made numerous attempts through meet and confer to arrange Defendants deposition for over a year. Defendants have not acted in good faith and evaded discovery by intentionally filing meritless Motions for Protective orders, objecting to dates, ignoring attempts to request dates and never replying with any alternative dates. · Trial is November 25th, 2024, about 5 months away, with discovery cut-off in less than 4 months. · Plaintiff requests the appointment for a discovery referee at Defendants cost to oversee the deposition process. Plaintiff requests that the court order the Defendants to bear the costs associated with the appointment of the referee and to cover the full costs incurred in bringing this motion. Defendants filed an opposition, arguing: · Defendants have acted in good faith to try to schedule deposition dates and resolve discovery disputes. Defendants have tried to schedule the deposition of Plaintiff Kent Tran, but Plaintiff has been unwilling to provide deposition dates. Moreover, Defendants had agreed to participate in an IDC, but Plaintiff instead filed the instant Motion. · Should the Court appoint a discovery referee, Defendants want any costs associated with the discovery referee to be shared equally between the Plaintiff and the Defendants. Defendants also request that the scope of the referees services be limited to the scheduling of depositions and resolution of any other discovery disputes mutually submitted by the parties to the discovery referee. On July 29, 2024, Cross-Defendants filed a Demurrer to the First Amended Cross-Complaint (FACC), arguing: · The FACC fails to state sufficient facts as to the first and second causes of action for indemnity, and the third cause of action for declaratory relief. The FACC is also uncertain. Cross-Complainants filed an opposition, arguing: · The FACC contains new specific factual allegations to address the Courts previous order sustaining the prior Cross-Complaint. · The FACC contains new and revised paragraphs 19, 20, 21, 22, 23, and 24 (as well as new attached Exhibits "A," "B," and "C") which allege facts showing how and on what basis Cross-Defendants ratified the actions of Cross-Complainants to support the First, Second and Third Causes of Action. Cross-Defendants filed a reply, arguing: · The FACC fails to state valid causes of action for equitable relief. · The FACC lacks specific allegations of fault by the Cross-Defendants, fails to establish joint legal obligation or resulting damages attributable to Cross-Defendants. II. DISCUSSION A. Plaintiffs Motion for Summary Adjudication a. Legal Standard A party may move for summary judgment if it is contended that the action has no merit or that there is no defense to the action or proceeding. (Cal. Civ. Proc. Code § 437c(a).) Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact. (Id., § 437c, subd. (c).) A defendant moving for summary judgment must show that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); see also, Code Civ. Proc., § 437c, subd. (o).) The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidenceas through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing. But& the defendant must indeed present evidence." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855 [italics in original].) In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action--for example, that the plaintiff cannot prove element¿X. (Id., at 853.) The court in Aguilar distilled summary judgment to a single proposition: If a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment. In such a case . . . the court should grant the motion and avoid a . . . trial rendered useless by nonsuit or directed verdict or similar device. (Id. at 855.) As noted in Aguilar, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at 850.) Thus, courts usually follow a three-step analysis: First, we identify the issues framed by the pleadings . . . . [¶] Secondly, we determine whether the moving partys showing has established facts which negate the opponents claim and justify a judgment in movants favor. . . . [¶] When a . . . motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Ojavan Investors, Inc. v. Cal. Coastal Comm. (1997) 54 Cal.App.4th 373, 385 [citation and footnote omitted].) Opposing parties must present substantial evidence in order to avoid summary judgment. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) In some instances&, evidence may be so lacking in probative value that it fails to raise any triable issue. (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083-1084.) A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. (Hunter v. Pacific Mechanical Corp (1995) 37 Cal.App.4th 1282, 1286, disapproved on other grounds by Aguilar, supra, at 865; accord Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780 [If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.].) Courts construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the¿propriety¿of granting the motion in favor of the party opposing it. (Unilab Corp.v. Angeles-IPA (2016) 244 Cal.App.4th 622, 636; internal citation omitted.) The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact. (Johnson v. United Cerebral Palsy, etc. (2009) 173 Cal.App.4th 740, 754; internal citation omitted.) "[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference... (Rosas v. BASF Corp.¿(2015) 236 Cal.App.4th 1378, 1392.) b. Request for Judicial Notice Plaintiff requests the Court grant judicial notice of the following: NBC 2023 Statement of Information from CA Secretary of State. Defendants request the Court grant judicial notice of the following: 1. Defendants' Ex Parte Application to Deny Plaintiffs Motion for Summary Adjudication (Summary Judgment) or Alternatively Continue the Motion for a Reasonable Period to Allow Defendants' Deposition Discovery filed by Defendants on August 8, 2024; 2. Declaration of T. Randolph Catanese, Esq. in support of Defendants' Ex Parte Application to Deny Plaintiffs Motion for Summary Adjudication (Summary Judgment) or Alternatively Continue the Motion for a Reasonable Period to Allow Defendants' Deposition Discovery filed by Defendants on August 8, 2024; and 3. This Court's Minute Order of August 9, 2024, pertaining to the Court's ruling on Defendants' Ex Parte Application to Deny Plaintiffs Motion for Summary Adjudication (Summary Judgment) or Alternatively Continue the Motion for a Reasonable Period to Allow Defendants' Deposition Discovery. The court may take judicial notice of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States, [r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States, and [f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid. Code § 452, subds. (c), (d), and (h).) The Court grants all of the parties requests for judicial notice. c. Denial or Continuance of Motion Pursuant to CCP section 437c(h) As an initial matter, the Court addresses whether Plaintiffs Motion for Summary Adjudication should be denied or continued pursuant to CCP section 437c(h). Under CCP section 437c(h), the Court may continue or deny a motion for summary judgment, summary adjudication, or both when a party submits facts in a declaration to demonstrate that essential evidence may exist but cannot then be presented to oppose the motion. (Code Civ. Proc., § 437c(h).) Where the opposing party submits an adequate affidavit showing that essential facts may exist but cannot be presented in a timely manner, the Court must either deny the motion or grant a continuance. (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34-35.) Defendants argue that essential evidence exists but cannot be presented to oppose the instant Motion. Defendants assert in a declaration by their counsel, Randolph Catanese, that they have not been able to take the deposition of Plaintiff or Cross-Defendants. (Catanese Decl., ¶ 11.) Plaintiffs Motion for Summary Adjudication references multiple declarations made by Plaintiff and Cross-Defendants. (Catanese Decl., ¶ 10.) Mr. Catanese states that he believes essential evidence may or will be obtained from the Plaintiff and the Cross-Defendants which may or will establish the existence of triable issues of fact, once he has had the opportunity to examine them regarding their recollection, knowledge and information related to documents produced in this case. (Catanese Decl., ¶ 11.) Defendants contend that they issued deposition notices for Plaintiff and Cross-Defendants on April 30, 2024. (Catanese Decl., ¶ 3.) Plaintiff and Cross-Defendants objected to the notices, the parties attempted to meet and confer, but Defendants contend they were not provided alternative deposition dates. (Catanese Decl., ¶¶ 4-6.) Thereafter, on June 14, 2024, Plaintiff filed his Motion for the Appointment of a Discovery Referee, which is schedule for hearing on September 3, 2024, the same day as the hearing for Plaintiffs Motion for Summary Adjudication. (Catanese Decl., ¶ 7.) Plaintiff did not file a reply addressing Defendants argument. Based on the foregoing, the Court finds that Defendants have sufficiently demonstrated the need for additional discovery. Therefore, the Court denies Plaintiffs Motion for Summary Adjudication to allow Defendants and Cross-Complainants an opportunity to obtain essential evidence necessary to oppose the Motion pursuant to CCP section 437c(h). Accordingly, Plaintiffs Motion for Summary Adjudication is DENIED without prejudice. B. Plaintiffs Motion for Appointment of Discovery Referee a. Legal Standard When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.¿¿(Code Civ. Proc., § 639, subd. (a)(5).)¿¿Appointment requires a court finding of exceptional circ*mstances.¿¿(Code Civ. Proc., § 639, subd. (d)(2).)¿¿¿ ¿¿ Absent agreement of all parties,¿courts may not make blanket referrals, except in the unusual case where a majority of factors favor reference, including: (1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming.¿(Taggeres v. Superior Court¿(1998) 62 Cal.App.4th¿94, 105.¿ Where one or more of the above factors unduly impact the courts time and/or limited resources, the court is clearly within its discretion to make an appropriate reference.¿¿(Id. at¿106.)¿¿¿ ¿¿¿ All appointments of referees pursuant to¿Code Civ. Proc., § 639,¿subd. (a)(5),¿must be by written order and must¿include the following:¿¿¿¿ ¿¿¿ [1]¿the exceptional circ*mstances requiring the reference, which must be specific to the circ*mstances of the particular case.¿[2]¿The subject matter or matters included in the reference.¿[3]¿The name, business address, and telephone number of the referee.¿[4]¿The maximum hourly rate the referee may charge and, at the request of any party, the maximum number of hours for which the referee may charge. Upon the written application of any party or the referee, the court may, for good cause shown, modify the maximum number of hours subject to any findings as set forth in paragraph (6)¿[of¿Code Civ. Proc., § 639].¿[5]¿Either a finding that no party has established an economic inability to pay a pro rata share of the referee's fee or a finding that one or more parties has established an economic inability to pay a pro rata share of the referee's fees and that another party has agreed voluntarily to pay that additional share of the referees fee. A court shall not appoint a referee at a cost to the parties if neither of these findings is made.¿(Code Civ. Proc., § 639,¿subd. (d).)¿¿ b. Discussion Plaintiff moves for the Court to appoint a Discovery Referee. Plaintiff argues that pursuant to CCP § 639(a)(5), appointing a discovery referee is appropriate and warranted. Plaintiff contends that he has attempted to schedule depositions for Defendants for over a year. Plaintiff further contends that Defendants objected to the deposition notices and have not proposed alternative dates. Thus, Plaintiff asserts that without a referee, this Court and Plaintiffs resources will be exhausted and drained with over 10-15 motions to compel for the deposition of each Defendant that will need to be completed by the November 25, 2024 trial deadline. (Motion, p. 3.) In opposition, Defendants assert that they have attempted to schedule deposition dates and resolve discovery disputes in good faith. Defendants contend they have attempted to engage in meet and confer efforts to schedule the deposition of Plaintiff and Cross-Defendants but their counsel has failed to provide alternate dates. Moreover, Defendants assert that they had agreed to participate in an Informal Discovery Conference, but instead Plaintiff filed the instant Motion. Defendants argue the Court should deny Plaintiffs motion in its entirety, or in the alternative, should the Court appoint a discovery referee, Defendants request the costs of the discovery referee be borne equally by the parties and the discovery referee have a limited scope of authority. The Court finds that Plaintiff has failed establish that a referee is required. CCP § 639 provides when a discovery referee can be appointed. Subsection (d) provides that When the referee is appointed pursuant to paragraph (5) of subdivision (a), the exceptional circ*mstances requiring the reference, which must be specific to the circ*mstances of the particular case, is applicable here. Plaintiff has failed to indicate any exceptional reason as to why a discovery referee is required other than there are many pending motions. Notwithstanding a party's objection, subdivision (e) of section 639 authorizes the appointment of a discovery referee when the court determines in its discretion that such an appointment is necessary. (Hood v. Superior Court (1999) 72 Cal.App.4th 446, 449.) Further, the Court in Taggares provide various factors that courts utilize to determine if appointing a referee is appropriate. Unless both parties have agreed to a reference, the court should not make blanket orders directing all discovery motions to a discovery referee except in the unusual case where a majority of factors favoring reference are present. These include: (1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming. In making its decision, the trial courts need consider the statutory scheme is designed only to permit reference over the parties' objections where that procedure is necessary, not merely convenient. (Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 105106.) Here, Plaintiff contends that there will be multiple motions to compel depositions to be heard. However, Plaintiff has failed to establish exceptional circ*mstances. Moreover, the Court notes that Plaintiff has not participated in an Informal Discovery Conference before filing this motion. Further, while Plaintiff argues that a referee is necessary to ensure that discovery is complete before the November 25, 2024 trial deadline, the Court notes that the original complaint was filed in April 2023. Thus, even if the trial is delayed, it would not be a significant delay as this matter would still be less than two years old, not a significant length of time. The Court finds Plaintiff has failed to establish exceptional circ*mstances such that a discovery referee is warranted at this time. Accordingly, Plaintiffs Motion for an Order for Appointment of Discovery Referee is DENIED. C. Cross-Defendants Demurrer to First Amended Cross-Complaint c. Legal Standard for Demurrer A demurrer tests the sufficiency of whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in contextany defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleading alone, and not the evidence or facts alleged. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaints properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn, supra, 147 Cal.App.4th at p. 747.) d. Meet and Confer Requirement Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41, subd. (a).) Here, counsel for Cross-Defendants submitted a declaration stating that she and Plaintiffs counsel exchanged emails regarding the allegations of the First Amended Cross-Complaint and the possibility of filing a demurrer by Cross-Defendants. (Chen Decl., ¶ 3.) Counsel for Cross-Defendants state they attempted to schedule a call to discuss the issues, but the parties did not end up discussing the issues by telephone. (Ibid.) Since the parties did not meet and confer telephonically or in person, the court does not find the moving party has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a). However, failure to meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ. Proc. § 430.41, subd. (a)(4).) Thus, the Court continues its analysis of the papers on the merits. e. First and Second Causes of Action for Equitable Indemnity and Indemnity Cross-Defendants argue that the FACC fails to allege sufficient facts to constitute the equitable indemnity and indemnity causes of action. To state a claim for equitable indemnity, a defendant must allege the same harm for which he may be held liable is properly attributableat least in partto the cross-defendant. (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1445, fn.7.) The Cross-Complaint states: Cross-Complainants herein deny any wrongdoing, negligence or other liability in connection with the matters complained of in the SAC; however, in the event Cross-Complainants are held liable to Plaintiff TRAN for any amounts set forth in the SAC, such liability will be the result of and caused by the negligence, carelessness, acts or omissions or other fault of the Cross-Defendants, and each of them. (FACC, ¶ 26.) Cross-Defendants argue the FACC lacks specific allegations of fault, contractual duty and resulting damages. A valid claim of indemnity requires that there must be a showing of fault on the part of the indemnitor and resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible. (Bailey v. Safeway, Inc., (2011) 199 Cal. App. 4th 206.) In opposition, Cross-Complainants assert that the FACC sufficiently alleges Cross-Defendants ratified, consented to, and did not object to the transfer of Plaintiff KENTs shares and the payment of dividend payout to TANI. Specifically, the FACC alleges the following: [T]he SAC allege that TANI wrongfully acquired TRAN's 19.4% equity interest in GOLDEN PARTNER. (FACC, ¶ 19.) The transfer of TRAN's 19.4% equity interest in GOLDEN PARTNER to TANI and TANI' s acquisition of those shares was consented to and ratified by the Cross-Defendants by means of Cross-Defendants' execution of GOLDEN PARTNER corporate minutes dated January 1, 2021, which approved the transfer of TRAN's 19.4% ownership of GOLDEN PARTNER to TANI. (FACC, ¶ 20.) [T]he SAC alleges that TANI embezzled KENT's expected 2021 shareholder dividend payout of $552,900 by creating fake corporate meetings claiming that KENT, LIN, CHEN, SZETO and ZHENG approved of JIMMY taking KENT's entire 19.4% of NBC in a non-existent NBC meeting on January 1st, 2021." (FACC, ¶ 21.) The payment of a shareholder dividend payout of $1,168,500 to TANI for year 2021 was consented to and ratified by the Cross-Defendants by means of Cross-Defendants' execution of GOLDEN PARTNER corporate minutes dated January 1, 2021, approving the transfer of TRAN's 19.4% ownership of GOLDEN PARTNER to TANI. (FACC, ¶ 22.) In addition to the above, all Cross-Defendants received K-1s from GOLDEN PARTNER's certified public accountants and bookkeepers reflecting their relative equity holdings in GOLDEN PARTNER based upon the transfer of TRAN's 19.4% equity interest to TANI and consented to and ratified this activity as they accepted financial compensation based upon these equity holdings and did not object at any time. Cross-Defendants knew of, consented to and ratified the information in GOLDEN PARTNER tax reporting documents such as K-1s which identified the payments to TANI from GOLDEN PARTNER identified in the SAC by TRAN as illegal. (FACC, ¶ 23.) Here, the Court agrees that the FACC fails to allege sufficient facts. First, while the FACC alleges Cross-Defendants consented and ratified the actions pertaining to Golden Partner and NBC, the FACC does not specify the other Cross-Complainants standing to sue Cross-Defendants. In addition, Cross-Complainants allegations do not explain how Cross-Defendants ratified TANIs fraud against Plaintiff Kent Tran. For example, the FACC states in a vague manner that Cross-Defendants consented to and ratified Trans conduct by the execution of corporate minutes. Further, the FACC does not specify a contractual duty owed by Cross-Defendants that would warrant indemnification or how Cross-Defendants specific actions caused the damages claimed. Accordingly, the demurrer is SUSTAINED with leave to amend as to the first and second causes of action. f. Third Cause of Action for Declaratory Relief An action for declaratory relief lies when there is an actual bona fide dispute between parties as to a legal obligation arising under the circ*mstances specified in CCP §1060 and, in addition, the controversy must be justiciable - i.e., presents a question as to which there is more than one answer. (Western Motors Servicing Corp. v. Land Development & Inv. Co. (1957) 152 Cal.App.2d 509.). Actual controversy is a controversy which admits of definitive and conclusive relief by judgment within the field of judicial administration, as distinguished from an advisory opinion on a particular or hypothetical state of facts. The judgment must decree, not suggest, what the parties may or may not do. (Selby Realty Co. v. San Buenaventura (1973) 10 Cal.3d 110.) A mere difference of opinion is not an actual controversy within §1060. The summary judgment procedure is appropriate in declaratory relief actions since The propriety of the application of declaratory relief lies in the trial court's function to render such a judgment when only legal issues are presented for its determination. (Spencer v. Hibernia Bank, 186 Cal.App.2d 702, 712.) The FACC states: An actual controversy has arisen and now exists between Cross-Complainant TANI and Cross-Defendants concerning their respective rights and duties under the Bylaws of GOLDEN PARTNER. Plaintiff TRAN has alleged in the SAC that TANI has violated various provisions of the Bylaws of GOLDEN PARTNER. TANI is informed and believes, and based thereon alleges that all acts or omissions by him were ratified and consented to by the Cross-Defendants in their role as directors, officers and shareholders of GOLDEN PARTNER. (FACC, ¶ 34.) Cross-Complainant TANI desires a judicial determination of his rights and obligations under the Bylaws of GOLDEN PARTNER and a judicial declaration that TANI has not violated the Bylaws of GOLDEN PARTNER and that that all acts or omissions by him were ratified and consented to by the Cross-Defendants in their role as directors, officers and shareholders of GOLDEN PARTNER. (FACC, ¶ 35.) However, the Court finds that the third cause of action is also not sufficiently set forth. As stated above, the FACC lacks specific allegations that the actions taken by Cross-Complainants as alleged in the SAC were consented to, ratified, and taken with the knowledge and consent of the Cross-Defendants. Thus, the FACC does not allege facts that would give rise to Cross-Defendants liability. Cross-Defendants demurrer to the third cause of action is SUSTAINED with leave to amend. III. DISPOSITION Plaintiffs Motion for Summary Adjudication is DENIED without prejudice. Plaintiffs Motion for an Order for Appointment of Discovery Referee is DENIED. Cross-Defendants Demurrer to the First Amended Cross-Complaints first, second and third causes of action is SUSTAINED with 20 days leave to amend.

Ruling

BRUCE FISHMAN, M.D., ET AL. VS PATRICK NAZEMI, ET AL.

Aug 30, 2024 |20STCV34289

Case Number: 20STCV34289 Hearing Date: August 30, 2024 Dept: 56 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT BRUCE E. FISHMAN, M.D., et al., Plaintiffs, vs. PATRICK NAZEMI, et al., Defendants. CASE NO.: 20STCV34289 [TENTATIVE] ORDER RE: MOTION FOR ORDER TO REQUIRE POSTING OF BOND PURSUANT TO CCP § 917.9(a)(3) Date: August 30, 2024 Time: 8:30 a.m. Dept. 56 MOVING PARTY: Defendants MLA DEFINED BENEFIT PENSION PLAN and MLA MONEY PURCHASE PENSION PLAN (Judgment Creditors) RESPONDING PARTY: None The Court has considered the moving papers. No opposition has been filed. Any opposition was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).) On September 9, 2020, Plaintiffs filed a complaint (Complaint) against Judgment Creditors and other defendants, asserting the following causes of action: (1) intentional fraudulent transfer; (2) fraudulent transfer; (3) transfer resulting in debtors insolvency; (4) common law fraudulent transfer; (5) aiding and abetting fraudulent transfer; (6) declaratory relief; and (7) unjust enrichment. On May 31, 2023, MLA Defined Benefit Pension Plan filed a cross-complaint (Cross-Complaint) against Plaintiffs seeking a declaratory judgment. On the same date, Judgment Creditors filed a Motion for Summary Judgment relating to the Complaint and relating to the Cross-Complaint. On September 27, 2023, summary judgment was granted in favor of Judgment Creditors as to the Complaint and in favor of MLA Defined Benefit Pension Plan as to the Cross-Complaint. On November 2, 2023, the Court issued a Judgment in favor of Judgment Creditors and against Plaintiffs. On November 3, 2023, a Notice of Judgment was served on counsel for Plaintiffs. On February 2, 2024 (more than 60 days after Notice of the original Judgment against Plaintiffs and in favor of Judgment Creditors was served), Plaintiffs filed a Notice of Appeal. On April 4, 2024, this Court issued an Amended Judgment amending the original Judgment to assess attorneys fees in the amount of $68,835. On July 26, 2024, Judgment Creditors filed the instant Motion for Order to Require Posting of Bond Pursuant to CCP § 917.9(a)(3) (the Motion). On August 16, 2024, the Court of Appeal (Second District) issued an order dismissing Plaintiffs appeal due to default. On the Courts own motion, the hearing for the Motion is continued until October 23, 2024. Moving party is ordered to give notice of this ruling. Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. Dated this 30th day of August 2024 Hon. Holly J. Fujie Judge of the Superior Court

Ruling

TJG/Summitt Development Corporation vs. North State Grocery, Inc.

Aug 28, 2024 |22CV-0200775

TJG/SUMMITT DEVELOPMENT CORPORATION VS. NORTH STATE GROCERY, INC.Case Number: 22CV-0200775This matter is on calendar for review regarding trial re-setting. The litigation is at issue. The Court designatesthis matter as EXEMPT from the case disposition time standards. The matter is ready to be re-set for a court trial.An appearance is necessary on today’s calendar to provide the Court with available trial dates.

Ruling

DOWNARD VS. GOLDMAN

Aug 30, 2024 |CVCV20-0195408

DOWNARD VS. GOLDMANCase Number: CVCV20-0195408This matter is on calendar for review regarding status of sale. The Court notes that Defendant filed a Motion forEntry of Final Judgment on Accounting and for Distribution of Proceeds of Sale that was denied without prejudiceon August 5, 2024 due to a lack of notice. The Court is therefore aware that the property has sold. Defendanthas not refiled the motion with proper notice, but it appears from the Petitioner’s Status Report filed August 22,2024 that a stipulation for entry of judgment is being considered by the parties. The matter is continued toMonday, October 28, 2024 at 9:00 a.m. in Department 63 for status of the case. No appearance is necessaryon today’s calendar.

Ruling

RICHARD SWEET, ET AL. VS ARCHIBUILDZ, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY

Aug 28, 2024 |23STCV12448

Case Number: 23STCV12448 Hearing Date: August 28, 2024 Dept: 31 Tentative Ruling Judge Kerry Bensinger, Department 31 HEARING DATE: August 28, 2024 TRIAL DATE: September 16, 2024 CASE: Richard Sweet, et al. v. Archibuildz, LLC CASE NO.: 23STCV12448 MOTION TO DEEM REQUESTS FOR ADMISSION, SET ONE, ADMITTED MOVING PARTY: Plaintiffs Richard Sweet, et al. RESPONDING PARTY: No opposition I. FACTUAL AND PROCEDURAL BACKGROUND On July 12, 2024, Plaintiffs Richard Sweet, Lori Sweet, individually and as Co-Trustees of the Sweet Living Trust, filed this motion to deem Plaintiffs Requests for Admissions, Set One, admitted (the Motion) against Defendant Archibuildz, LLC. Plaintiffs seek sanctions against Defendant and its counsel. On July 16, 2024, Plaintiffs filed an ex parte application to specially set the hearing on Plaintiffs Motion. The application was heard by Judge Escalante in Department 24 due to unavailability of this department. Judge Escalante granted the application and specially set the hearing for August 28, 2024. The Motion is unopposed. II. LEGAL STANDARD If a party to whom requests for admission are directed fails to serve a timely response, the propounding party may move for an order that the truth of the matters specified in the requests be deemed admitted.¿ (Code Civ. Proc., § 2033.280, subd. (b).)¿ Failure to timely serve responses waives objections to the requests. ¿(Code Civ. Proc., § 2033.280, subd. (a).)¿ ¿ ¿ Monetary Sanctions¿¿ ¿¿ Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for misuse of the discovery process, which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿¿¿¿ ¿¿¿ If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿¿¿ ¿¿¿ In the context of a motion to deem requests for admission admitted, it is mandatory that the court impose monetary sanctions on the party or attorney, or both, whose failure to serve a timely response to the request necessitated the motion.¿ (Code Civ. Proc., § 2033.280, subd. (c).)¿ Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿¿¿¿¿¿¿ ¿¿¿¿¿ By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a partys attorney unless the court finds that the attorney advised the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ Unlike monetary sanctions against a party, which are based on the party's misuse of the discovery process, monetary sanctions against the party's attorney require a finding the attorney advis[ed] that conduct. (Ibid.) It is not enough that the attorney's actions were in some way improper. (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney's advice to a client is peculiarly within [his or her] knowledge, the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿¿ III. DISCUSSION It is undisputed that Plaintiffs properly served Defendant with Requests for Admissions, Set One, on May 30, 2024. To date, Defendant has not responded. (See Declaration of Rebecca D. Wester, ¶¶ 3-4.) Accordingly, Plaintiffs are entitled to an order deeming Plaintiffs Requests for Admissions admitted against Defendant. Monetary Sanctions Plaintiffs request sanctions against Defendant. Given the courts ruling, sanctions are mandatory.¿ (Code Civ. Proc., § 2033.280, subd. (c).)¿ Pursuant to Hennings, supra, imposition of monetary sanctions against counsel is also proper unless counsel shows that he or she did not counsel the discovery abuse.¿ (Hennings, 58 Cal.App.5th at p. 81.)¿ Defense counsel does not meet their burden.¿ Accordingly, sanctions are imposed against Defendant and its counsel of record in the amount of $1,350, consisting of two hours at defense counsels hourly rate. Accordingly, sanctions are imposed against Defendant and its counsel in the sum of $675, consisting of one and a half hours at Plaintiffs counsels hourly rate. IV. CONCLUSION The unopposed motion is GRANTED. Plaintiffs Requests for Admissions, Set One, is deemed admitted against Defendant Archibuildz, Inc.¿¿¿ ¿ The request for sanctions is granted.¿ Defendant and its counsel are ordered to pay, jointly and severally, sanctions in the amount of $675 to Plaintiffs, by and through their counsel, within 30 days of this order. Plaintiffs to give notice. Dated: August 28, 2024 ¿ ¿¿¿ ¿ ¿ Kerry Bensinger¿¿ ¿ Judge of the Superior Court¿

Ruling

MYRIAD PICTURES, INC. VS INFINITY FILMS HOLDINGS, LLC, ET AL.

Aug 27, 2024 |21SMCV00498

Case Number: 21SMCV00498 Hearing Date: August 27, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE August 27, 2024 CASE NUMBER 21SMCV00498 MOTION Demurrer MOVING PARTIES Defendants David Fannon and Seth Needle OPPOSING PARTY Plaintiff Myriad Pictures, Inc. MOTION This case arises from a dispute concerning the production and distribution of the fourth movie in the Jeepers Creepers movie franchise. On June 18, 2024, Plaintiff Myriad Pictures, Inc. (Plaintiff) filed the Third Amended Complaint (TAC) against Defendants Infinity Films Holdings, LLC; Michael Ohoven; Brandon Farm, LLC; Jake Seal; Screen Media Ventures, LLC (SMV); Chicken Soup for the Soul Entertainment, Inc.;[1] Independent Frame, LLC; Orwo Film Distribution, LLC; PVS Studios, LLC; David Fannon; Seth Needle; and the Estate Mark Damon, alleging five causes of action for (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) intentional interference with contractual relations; (4) fraudulent concealment; and (5) declaratory relief. Defendants David Fannon (Fannon) and Seth Needle (Needle) (together, Moving Defendants) now demur to the third, fourth, and fifth causes of action on the grounds that they fail to state facts sufficient to constitute a cause of action, pursuant to California Code of Civil Procedure section 430.10, subdivision (e). The first two causes of action are not alleged as to Moving Defendants. Plaintiff opposes the demurrer. ANALYSIS 1. DEMURRER It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint. (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In testing the sufficiency of a cause of action, a court accepts [a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law. [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [in considering the merits of a demurrer, however, the facts alleged in the pleading are deemed to be true, however improbable they may be].) Further, in ruling on a demurrer, a court must liberally construe the allegations of the complaint with a view to substantial justice between the parties. (See Code Civ. Proc., § 452.) This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) In summary, [d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged. (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) A. FAILURE TO STATE A CAUSE OF ACTION Moving Defendants demur to all three causes of action alleged against them on the grounds that the statute of limitations has passed. The statute of limitations for fraud and causes of action arising out of fraud is three years. (Code Civ. Proc., § 338, subd. (d); see also Romano v. Wilbur Ellis & Co. (1947) 82 Cal.App.2d 670, 674.) Here, the conduct is alleged to have occurred in 2019. (TAC ¶ 33.) Yet, the Third Amended Complaint that names Moving Defendants was not filed until June 18, 2024, more than three years later. Plaintiff argues that the demurrer should be overruled because (1) Plaintiff did not discover the facts giving rise to the causes of action against moving defendants until SMVs production of foreign distribution agreements on October 16, 2023; and (2) the TAC relates back to the original complaint, which was filed on March 16, 2021. Discovery Rule An important exception to the general rule of accrual is the discovery rule, which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 (hereafter Fox).) A plaintiff has reason to discover a cause of action when he or she has reason at least to suspect a factual basis for its elements. (Ibid.) However, the discovery rule allows accrual of the cause of action even if the plaintiff does not have reason to suspect the defendants identity. (Ibid.) The discovery rule does not delay accrual in that situation because the identity of the defendant is not an element of a cause of action. (Ibid.) Plaintiff contends in opposition[2] that although it was aware of Moving Defendants names and identities generally, it did not discover the facts giving rise to the causes of action against Moving Defendants until October 16, 2023, when SMV produced (1) foreign distribution agreements signed by Fannon demonstrating Fannons acquisition of foreign distribution rights for SMV and Fannons approval of foreign distribution agreements; and (2) Needles production services on Jeepers Creepers: Reborn. However, the TAC does not allege any facts about the October 16, 2023 discovery of facts to overcome the apparent statute of limitations problem on the face of the complaint. In order to rely on the discovery rule for delayed accrual of a cause of action, [a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. (Fox, supra, 35 Cal.4th at p. 808.) Therefore, the Court finds that Discovery Rule does not save the Plaintiff from demurrer. Relation Back When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly[.] (Code Civ. Proc., § 474.) A plaintiff's ignorance must be genuine and based on a lack of knowledge of the defendant's connection with the case. (Organizacion Comunidad De Alviso v. City of San Jose (2021) 60 Cal.App.5th 783, 794.) An amended complaint relates back to the original complaint, and thus avoids the statute of limitations as a bar, if it (1) rests on the same general set of facts as the original complaint and (2) refers to the same accident and the same injuries as the original complaint. (San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1549.) The relation-back doctrine typically applies where an amendment identifies a defendant previously named as a Doe defendant or adds a new cause of action asserted by the same plaintiff on the same general set of facts. (Id. at pp. 1549-1550 [cleaned up].) The original complaint, filed March 16, 2021, alleges four causes of action for (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) intentional interference with contractual relations; and (4) fraudulent concealment. Although the original complaint does not name Moving Defendants as defendants, it does include the following allegations: 26. Knowing that Myriad controlled distribution rights to all sequels, and given that Screen Media had profited over $1 million from its distribution of Jeepers Creepers III, in April 2018, David Fannon, President, and Seth Needle, the Senior Vice President of Acquisitions for Screen Media, made an offer to Myriad/Infinity to distribute Jeepers Creepers IV in the United States. The terms of the offer from Screen Media included a $900,000 up-front advance payment (the deal with Screen Media for Jeepers Creepers III did not include an advance). Screen Media was very eager to distribute Jeepers Creepers IV and followed up with Myriad and Infinity several times regarding its offer. Ohoven advised Needle that they could not commit to any distribution deal with Screen Media at that time given irregularities with Screen Medias accountings on Jeepers Creepers III. Ohoven said that he was unwilling to discuss any deal with Screen Media until the accounting gets sorted because he wanted to see that the equity investors on Jeepers Creepers III would be paid. These issues with Screen Media were not timely resolved and Myriad/Infinity were eventually forced to audit Screen Media on Jeepers Creepers III. [&] 59. Screen Media was fully aware of Myriads rights. Among other things, Myriad negotiated a license of certain U.S. rights to Jeepers Creepers III to Screen Media in or about February 2017. Further, in 2018, while Myriad was attempting to develop Jeepers Creepers IV with Ohoven/Infinity, Seth Needle, on behalf of Screen Media engaged in discussions with Kirk DAmico, on behalf of Myriad, to distribute Jeepers Creepers IV in the United States. On or about April 3, 2018, Screen Media presented a written offer to Myriad and Infinity to distribute Jeepers Creepers IV in the United States. Thereafter, Seth Needle continued to follow up with DAmico concerning Screen Medias offer and to express Screen Medias continued interest in distributing the picture in the United States. DAmico sent a script treatment to Seth Needle of Screen Media in November 2018. Even beyond that, on or about November 22, 2019, DAmico expressly informed Mark Damon of Screen Media that Myriad still held worldwide distribution rights for Jeepers Creepers sequels and warned him to ensure that Screen Media did not interfere with such rights. DAmico was clear that Myriads exclusive rights were subject to a right of first negotiation and last refusal, which rights had not yet been triggered. 60. Myriad is informed and believes, and based thereon alleges that despite Screen Medias knowledge and understanding that Myriad had agreements with Frame, Infinity, and Brandon Farm regarding exclusive distribution rights to Jeepers Creepers projects, in or about 2019 Screen Media sought and unlawfully obtained Myriads distribution rights to Jeepers Creepers IV and Jeepers Creepers V. Indeed, Variety reported on February 24, 2021 that worldwide distribution rights in the franchise had been sold to Screen Media. During a recent conversation between Seth Needle and Kirk DAmico, Needle admitted that Screen Media already had a distribution agreement in place by February 1, 2021. [&] 89. On information and belief, Seth Needle, Dave Fannon and/or Mark Damon of Screen Media (the Screen Media Employees) formed a conspiracy with Ohoven and/or Seal and their respective companies, Infinity, Brandon Farm, Orwo Distribution and PVS in or about the Fall of 2019 to defraud Myriad out of its worldwide distribution rights to Jeepers Creepers IV and V. (Complaint, ¶¶ 26, 59-60, 89.) The First Amended Complaint (FAC) filed on July 7, 2021 alleges the same four causes of action and contains substantially the same allegations in paragraphs 27, 60-61, and 90. The Second Amended Complaint (SAC) filed on July 26, 2023 adds the fifth cause of action for declaratory relief, and still does not name Moving Defendants as defendants, but contains substantially the same allegations. The Third Amended Complaint (TAC) formally names Needle and Fannon and contains the following allegations: 10. Defendant David Fannon (Fannon) is an individual and on information and belief is a resident of Los Angeles, California. Fannon is CSSEs executive vice president and the president of Screen Media. 11. Defendant Seth Needle (Needle) is an individual and on information and belief is a resident of Los Angeles, California. Needle was an executive producer on the motion picture, Jeepers Creepers: Reborn and was the executive vice president of global acquisitions and co-productions at Screen Media. [&] 30. Knowing that Myriad controlled distribution rights to all sequels, and given that Screen Media/CSSE had profited over $1 million from their distribution of Jeepers Creepers III, in April 2018, Fannon, President, and Needle, the Senior Vice President of Acquisitions for Screen Media, made an offer to Myriad/Infinity to distribute Jeepers Creepers IV in the United States. The terms of the offer from Screen Media included a $900,000 up-front advance payment (the deal with Screen Media for Jeepers Creepers III did not include an advance). Screen Media/CSSE were very eager to distribute Jeepers Creepers IV and followed up with Myriad and Infinity several times regarding Screen Medias offer. Ohoven advised Needle that they could not commit to any distribution deal with Screen Media/CSSE at that time given irregularities with Screen Medias accountings on Jeepers Creepers III. Ohoven said that he was unwilling to discuss any deal with Screen Media/CSSE until the accounting gets sorted because he wanted to see that the equity investors on Jeepers Creepers III would be paid. These issues with Screen Media/CSSE were not timely resolved and Myriad/Infinity were eventually forced to audit Screen Media/CSSE on Jeepers Creepers III. [&] 62. On February 16, 2017, Myriad, Infinity, and Brandon Farm entered into the Term Sheet which granted Myriad the right to act as the exclusive sales agent throughout the world for any subsequent Jeepers Creepers productions, such as sequels, prequels, remakes, etc. 63. Screen Media/CSSE and in particular its officers, employees, and representatives Fannon, Needle, and Damon (collectively, Fannon, Needle, and Damon are the Screen Media Employees) were fully aware of Myriads rights. Among other things, Myriad negotiated a license of certain U.S. rights to Jeepers Creepers III to Screen Media in or about February 2017. Further, in 2018, while Myriad was attempting to develop Jeepers Creepers IV with Ohoven/Infinity, Seth Needle, on behalf of Screen Media engaged in discussions with Kirk DAmico, on behalf of Myriad, to distribute Jeepers Creepers IV in the United States. On or about April 3, 2018, Screen Media presented a written offer to Myriad and Infinity to distribute Jeepers Creepers IV in the United States. Thereafter, Seth Needle continued to follow up with DAmico concerning Screen Medias offer and to express Screen Medias continued interest in distributing the picture in the United States. DAmico sent a script treatment to Seth Needle of Screen Media in November 2018. Even beyond that, on or about November 22, 2019, DAmico expressly informed Mark Damon of Screen Media that Myriad still held worldwide distribution rights for Jeepers Creepers sequels and warned him to ensure that Screen Media did not interfere with such rights. DAmico was clear that Myriads exclusive rights were subject to a right of first negotiation and last refusal, which rights had not yet been triggered. 64. Myriad is informed and believes, and based thereon alleges that despite Screen Media/CSSE and the Screen Media Employees knowledge and understanding that Myriad had agreements with Frame, Infinity, and Brandon Farm regarding exclusive distribution rights to Jeepers Creepers projects, in or about 2019 Screen Media/CSSE with the participation and consent of the Screen Media Employees sought and unlawfully obtained Myriads distribution rights to Jeepers Creepers IV and Jeepers Creepers V. Indeed, Variety reported on February 24, 2021 that worldwide distribution rights in the franchise had been sold to Screen Media. During a recent conversation between Seth Needle and Kirk DAmico, Needle admitted that Screen Media/CSSE already had a distribution agreement in place by February 1, 2021. 65. Screen Media/CSSE and the Screen Media Employees unlawful conduct has prevented Myriad from exercising its exclusive distribution rights to Jeepers Creepers IV and Jeepers Creepers V. 66. Because Screen Media/CSSE and the Screen Media Employees knew that Myriad had exclusive distribution rights to the Jeepers Creepers projects, they took those rights with the intention of disrupting Myriads ability to exercise its rights and to perform under the Term Sheet and the CoFinance Agreement. 67. As a direct and proximate result of Screen Media/CSSE and the Screen Media Employees wrongful conduct, Myriad has been damaged in at least the sum of $2,000,000, with the exact amount to be proven at time of trial. 68. Screen Media/CSSE and the Screen Media Employees conduct was a substantial factor in causing Myriads harm. (TAC ¶¶ 10-11, 30, 62-68.) Paragraph 30 of the TAC is substantially similar to paragraph 26 of the original Complaint, TAC ¶¶ 63-64 are substantially similar to Complaint ¶¶ 56-60. Similarly, TAC ¶ 62 is substantially similar to Complaint ¶ 24, which alleges: 24. On February 16, 2017, Scoundrel on the one hand and Infinity and Brandon Farm on the other hand as Producer executed the Term Sheet. Among other things, the Term Sheet provided that: (i) Scoundrel shall be the sole and exclusive sales representative of the Picture in the Territory [i.e., the world] for the purposes of licensing Distribution Rights in the Picture to third parties. [Term Sheet, ¶1]. And TAC ¶¶ 65-68 are substantially similar to Complaint ¶¶ 61-64. Thus, the complaints rest on the same general set of facts and refer to the same incident and injuries. However, [a]s a general rule, an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. (Hawkins v. Pacific Coast Bldg. Products, Inc. (2004) 124 Cal.App.4th 1497, 1503.) But where an amendment does not add a new defendant, but simply corrects a misnomer by which an old defendant was sued, case law recognizes an exception to the general rule of no relation back. (Ibid.) Here, Moving Defendants were not substituted in place of the originally named Doe defendants. Instead, Moving Defendants were newly named, and the original Doe defendants 1-20 remain in the TAC. Therefore, the Court cannot say that the new addition of Moving Defendants relates back to the original complaint. 2. LEAVE TO AMEND A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend. (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].) Here, Plaintiff contends it can add facts that it did not discover the extent of Moving Defendants involvement in the alleged scheme until October 16, 2023. In the alternative, and on the same basis, Plaintiff could theoretically substitute Moving Defendants in place of the previously named Doe Defendants. Therefore, the Court grants Plaintiff leave to amend. CONCLUSION AND ORDER For the reasons stated, the Court sustains Moving Defendants Demurrer to the Third, Fourth, and Fifth causes of action with leave to amend. Further the Court orders Plaintiff to file and serve a fourth amended complaint in conformance with this ruling on or before September 24, 2024. Moving Defendants shall provide notice of the Courts ruling and file the notice with a proof of service forthwith. DATED: August 27, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court [1] Chicken Soup for the Soul Entertainment, Inc. and Screen Media Ventures, LLC filed a Notice of Stay (Bankruptcy) on July 8, 2024, and as such, the case is stayed as to those defendants. [2] The Court does not consider the Declaration of Robert Paredes in connection with the demurrer, as the Court may not generally consider extrinsic evidence when ruling on a demurrer.

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