This case was last updated from Los Angeles County Superior Courts on 09/16/2021 at 06:16:22 (UTC).

SOUTHERN GLAZER'S WINE & SPIRITS, LLC, A LIMITED LIABILITY COMPANY VS MESKO RESTAURANT GROUP II, INC., A CALIFORNIA CORPORATION, ET AL.

Case Summary

On 03/17/2020 SOUTHERN GLAZER'S WINE SPIRITS, LLC, A LIMITED LIABILITY COMPANY filed a Contract - Other Contract lawsuit against MESKO RESTAURANT GROUP II, INC , A CALIFORNIA CORPORATION. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2570

  • Filing Date:

    03/17/2020

  • Case Status:

    Other

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Judge

SERENA R. MURILLO

 

Party Details

Plaintiff

SOUTHERN GLAZER'S WINE & SPIRITS LLC A LIMITED LIABILITY COMPANY FKA SOUTHERN WINE & SPIRITS OF AMERICA INC. A CORPORATION

Defendants

MESKO JONATHAN

WINKEL SHERI

MESKO RESTAURANT GROUP II INC. A CALIFORNIA CORPORATION DBA ROCK & BREWS BUENA PARK

Attorney/Law Firm Details

Plaintiff Attorney

GARWACKI JR. RAY

 

Court Documents

Proof of Service by Mail - Proof of Service by Mail

12/1/2020: Proof of Service by Mail - Proof of Service by Mail

Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

12/16/2020: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Proof of Service by Mail - Proof of Service by Mail

12/16/2020: Proof of Service by Mail - Proof of Service by Mail

Notice (name extension) - Notice Of Hearing on General Demurrer to Fifth Cause of ACtion of Verified Complaint

12/16/2020: Notice (name extension) - Notice Of Hearing on General Demurrer to Fifth Cause of ACtion of Verified Complaint

Opposition (name extension) - Opposition to Demurrer to Complaint Filed by Defendant Sheri Winkel; Supporting Declaration of Yuri Voronin

2/24/2021: Opposition (name extension) - Opposition to Demurrer to Complaint Filed by Defendant Sheri Winkel; Supporting Declaration of Yuri Voronin

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

3/1/2021: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Certificate of Mailing for - Certificate of Mailing for (Hearing on Demurrer - without Motion to Strike) of 03/01/2021

3/1/2021: Certificate of Mailing for - Certificate of Mailing for (Hearing on Demurrer - without Motion to Strike) of 03/01/2021

Declaration (name extension) - Declaration of Meet and Confer in support of General Demurrer

3/22/2021: Declaration (name extension) - Declaration of Meet and Confer in support of General Demurrer

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

5/3/2021: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Request for Dismissal - Request for Dismissal

5/26/2021: Request for Dismissal - Request for Dismissal

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

3/17/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

First Amended Standing Order - First Amended Standing Order

3/17/2020: First Amended Standing Order - First Amended Standing Order

Civil Case Cover Sheet - Civil Case Cover Sheet

3/17/2020: Civil Case Cover Sheet - Civil Case Cover Sheet

Complaint - Complaint

3/17/2020: Complaint - Complaint

Summons - Summons on Complaint

3/17/2020: Summons - Summons on Complaint

3 More Documents Available

 

Docket Entries

  • 06/01/2021
  • DocketNon-Jury Trial scheduled for 09/14/2021 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 06/01/2021

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  • 06/01/2021
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/21/2023 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 06/01/2021

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  • 05/27/2021
  • DocketAddress for Ray Garwacki, Jr. (Attorney) null

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  • 05/26/2021
  • DocketOn the Complaint filed by Southern Glazer's Wine & Spirits, LLC, a Limited Liability Company on 03/17/2020, entered Request for Dismissal without prejudice filed by Southern Glazer's Wine & Spirits, LLC, a Limited Liability Company as to the entire action

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  • 05/03/2021
  • DocketMinute Order (Hearing on Demurrer - without Motion to Strike)

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  • 05/03/2021
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 05/03/2021 at 10:30 AM in Spring Street Courthouse at Department 26 updated: Result Date to 05/03/2021; Result Type to Held

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  • 03/22/2021
  • DocketDeclaration of Meet and Confer in support of General Demurrer; Filed by: Sheri Winkel (Defendant)

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  • 03/01/2021
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 05/03/2021 at 10:30 AM in Spring Street Courthouse at Department 26

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  • 03/01/2021
  • DocketMinute Order (Hearing on Demurrer - without Motion to Strike)

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  • 03/01/2021
  • DocketCertificate of Mailing for (Hearing on Demurrer - without Motion to Strike) of 03/01/2021; Filed by: Clerk

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5 More Docket Entries
  • 12/16/2020
  • DocketNotice Of Hearing on General Demurrer to Fifth Cause of ACtion of Verified Complaint; Filed by: Sheri Winkel (Defendant); As to: Southern Glazer's Wine & Spirits, LLC, a Limited Liability Company (Plaintiff)

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  • 12/01/2020
  • DocketProof of Service by Mail; Filed by: Southern Glazer's Wine & Spirits, LLC, a Limited Liability Company (Plaintiff); As to: Sheri Winkel (Defendant)

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  • 03/18/2020
  • DocketNon-Jury Trial scheduled for 09/14/2021 at 08:30 AM in Spring Street Courthouse at Department 26

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  • 03/18/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/21/2023 at 08:30 AM in Spring Street Courthouse at Department 26

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  • 03/18/2020
  • DocketCase assigned to Hon. Serena R. Murillo in Department 26 Spring Street Courthouse

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  • 03/17/2020
  • DocketComplaint; Filed by: Southern Glazer's Wine & Spirits, LLC, a Limited Liability Company (Plaintiff); As to: Mesko Restaurant Group II, INC., a California Corporation (Defendant); Sheri Winkel (Defendant); Jonathan Mesko (Defendant)

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  • 03/17/2020
  • DocketCivil Case Cover Sheet; Filed by: Southern Glazer's Wine & Spirits, LLC, a Limited Liability Company (Plaintiff); As to: Mesko Restaurant Group II, INC., a California Corporation (Defendant); Sheri Winkel (Defendant); Jonathan Mesko (Defendant)

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  • 03/17/2020
  • DocketSummons on Complaint; Issued and Filed by: Southern Glazer's Wine & Spirits, LLC, a Limited Liability Company (Plaintiff); As to: Mesko Restaurant Group II, INC., a California Corporation (Defendant); Sheri Winkel (Defendant); Jonathan Mesko (Defendant)

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  • 03/17/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 03/17/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

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Tentative Rulings

Case Number: 20STLC02570    Hearing Date: May 3, 2021    Dept: 26

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant Sheri Winkel’s Demurrer to the Complaint is SUSTAINED AS TO THE FIFTH CAUSE OF ACTION WITH 20 DAYS’ LEAVE TO AMEND. PLAINTIFF IS FILE A FIRST AMENDED COMPLAINT WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

On March 17, 2020, Plaintiff Southern Glazer’s Wine & Spirit, LLC fka Southern Wine & Spirits of America, Inc. (“Plaintiff”) filed the Complaint in this action for breach of contract, common counts, and breach of personal guaranty against Defendants Mesko Restaurant Group II, Inc. dba Rock & Brews Buena Park (“Defendant Rock & Brews”), Sheri Winkel (“Defendant Winkel”) and Jonathan Mesko (“Defendant Mesko”). Defendant Winkel was served with the Summons and Complaint by mail in November 2020. (Proof of Service by Mail, filed 12/01/20, ¶5.)

Defendant Winklel filed the instant Demurrer to the Complaint on December 16, 2020. Plaintiff filed an untimely opposition on February 24, 2021. The Demurrer was initially set for hearing on March 1, 2021 and continued to May 3, 2021 to allow for a meet and confer effort. A meet and confer declaration was filed by Defendant Winkel on March 22, 2021.

Discussion

The Demurrer is now accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Steur Decl., filed 3/22/21.) Defendant Winkel demurs to the fifth cause of action for breach of personal guaranty for failure to allege facts sufficient to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

The Complaint alleges that on July 22, 2015, Defendant Rock & Brews executed a credit application pursuant to which it became indebted to Plaintiff in the amount of $9,189.89. (Compl., ¶¶10-12 and Exh. 1.) Defendants Winkel and Mesko allegedly personally guaranteed payment under the application. (Id. at ¶26 and Exh. 2.) Upon Defendant Rock & Brews’ default, all Defendants allegedly became liable for the full amount due under the application but have refused to pay despite Plaintiff’s demands. (Id. at ¶27.)

Defendant Winkel demurs to the fifth cause of action on the grounds that she is not named as the guarantor and did not sign the personal guaranty in her individual capacity. Rather, Defendant Winkel argues she signed as Defendant Rock & Brews’ managing member as demonstrated by the handwritten note on the personal guaranty.

The personal guaranty is made in consideration of the credit granted to Defendant Rock & Brews by Plaintiff and is signed by both Defendants Winkel and Mesko. (Compl., Exh. 2.) It expressly states that the “undersigned guarantor(s) hereby unconditionally guarantee prompt repayment, when due, of all any such indebtedness, guarantor(s) will pay to Southern on its order or demand the amount due.” (Id. at Exh. 2, ¶1.) Additionally, following Defendants Mesko’s and Winkel’s signatures, a handwritten note states: “No personal guarantee. Signing as a managing member of Mesko Restaurant Group II, Inc. dba Buena Park & not as an individual. Guarantor is Mesko Restaurant Group II, Inc. dba Rock & Brews Buena Park.” (Id. at Exh. 2.)

“The rules governing the role of the court in interpreting a written instrument are well established. The interpretation of a contract is a judicial function. [Citation.] In engaging in this function, the trial court ‘give[s] effect to the mutual intention

of the parties as it existed’ at the time the contract was executed. [Citation.] Ordinarily, the objective intent of the contracting parties is a legal question determined solely by reference to the contract's terms. [Citation.]” (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1125-1126, 76 Cal.Rptr.3d 585 (Wolf).)

“The court generally may not consider extrinsic evidence of any prior agreement or contemporaneous oral agreement to vary or contradict the clear and unambiguous terms of a written, integrated contract. [Citations.] Extrinsic evidence is admissible, however, to interpret an agreement when a material term is ambiguous. [Citations.]”

(Brown v. Goldstein (2019) 34 Cal.App.5th 418, 432.) Furthermore, “[o]n a demurrer, the court must consider the sufficiency of the allegations, including any parol evidence allegations, to determine whether the contract is reasonably susceptible to plaintiff’s alleged interpretation.

(George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1128.)

To the extent the handwritten note on the personal guaranty appears to contradict the terms of the personal guaranty set forth in paragraph 1, the Court finds the personal guaranty is not reasonably susceptible to Plaintiff’s interpretation. No allegations in the Complaint explain the meaning of the handwritten note which appears to expressly disclaim any personal guarantee, whether by Defendant Mesko or Defendant Winkel. No parol evidence allegations are included in the Complaint to demonstrate the nature of the personal guaranty under which Defendant Winkel would be liable.

Therefore, the Court sustains the demurrer to the fifth cause of action with leave to amend.

Conclusion

Defendant Sheri Winkel’s Demurrer to the Complaint is SUSTAINED AS TO THE FIFTH CAUSE OF ACTION WITH 20 DAYS’ LEAVE TO AMEND. PLAINTIFF IS FILE A FIRST AMENDED COMPLAINT WITHIN 20 DAYS’ SERVICE OF THIS ORDER.

Moving party to give notice.

Case Number: 20STLC02570    Hearing Date: March 01, 2021    Dept: 26

Southern Glazer’s Wine & Spirits, LLC v. Mesko Restaurant Group, II, Inc., et al.

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant Sheri Winkel’s Demurrer to the Complaint is CONTINUED TO MAY 3, 2021 AT 10:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On March 17, 2020, Plaintiff Southern Glazer’s Wine & Spirit, LLC fka Southern Wine & Spirits of America, Inc. (“Plaintiff”) filed the Complaint in this action for breach of contract, common counts, and breach of personal guaranty against Defendants Mesko Restaurant Group II, Inc. dba Rock & Brews Buena Park, Sheri Winkel (“Defendant Winkel”) and Jonathan Mesko (“Defendant Mesko”).

Defendant Winklel filed the instant Demurrer to the Complaint on December 16, 2020. Plaintiff filed an untimely opposition on February 24, 2021.

Discussion

The Demurrer is not accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. The statute requires that “[b]efore 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).)

Based on Defendant Winkel’s failure to demonstrate that a pre-condition to bringing the instant Demurrer has been satisfied and the late-filed opposition, the Court continues the hearing to allow for completion of the meet and confer requirement.

Conclusion

Defendant Sheri Winkel’s Demurrer to the Complaint is CONTINUED TO MAY 3, 2021 AT 10:30AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. AT LEAST 16 COURT DAYS PRIOR TO THE NEW HEARING DATE, DEFENDANT SHERI WINKLE IS TO FILE AND SERVE A MEET AND CONFER DECLARATION IN COMPLIANCE WITH CODE OF CIVIL PROCEDURE SECTION 430.41. FAILURE TO DO SO MAY RESULT IN THE DEMURRER BEING PLACED OFF CALENDAR. ANY REPLY TO THE OPPOSITION IS TO BE FILED IN ACCORDANCE WITH THE CODE OF CIVIL PROCEDURE.

Court clerk to give notice.

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