SUMMIT BRIDGE NATIONAL IVESTMENTS IV VS GENTLECARE TRANSPORT

Tentative Rulings

Case Number: EC065055 Hearing Date: September 17, 2021 Dept: E

Hearing Date: 09/17/2021 – (2:00pm)\r\nCase No: EC065055\r\nTrial Date: 10/18/2021\r\nCase Name: Summit Bridge National Investments IV LLC, a Delaware limited\r\nliability company v. Gentlecare Transport, Inc., a California Corporation;\r\nMeguerditch Panossian, aka Mike Panossian, an indiv, Eddie Avakian, an indiv,\r\nand Does 1 through 50

Cross-Complaint: Meguerditch Panossian, an indiv,\r\nv. Gentlecare Transport Inc., a California Corporation dba Phoenix Ambulance\r\nand Medcoast Ambulance Service; JPMorgan Chase Bank, NA, a New York\r\nCorporation; Artine Safarian, an indiv.; Robert Douglas Spiro Jr., an indiv;\r\nand Roes 1 through 50

TENTATIVE\r\nRULING ON CROSS-DEFENDANT ROBERT DOUGLAS SPIRO’S MOTION FOR SUMMARY JUDGMENT,\r\nOR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Moving Party: Cross-Defendant, Robert Douglas Spiro\r\nJr. (“Spiro”)

Responding Party: Cross-Complainant, Meguerditch\r\nPanossian (“Panossian” also known as “Mike Panossian”)

RELIEF REQUESTED\r\nCross-Defendant\r\nSpiro moves for summary judgment, or in the alternative summary adjudication,\r\nas to the following causes of action in Panossian’s Cross-Complaint: 4)\r\nIntentional Misrepresentation, 5) Negligent Misrepresentation, 6) Conversion,\r\n8) Declaratory Relief.

BACKGROUND\r\nPer\r\nCross-Complainant’s\r\n(Panossian’s) Cross-Complaint, Gentlecare Transport, Inc. (“GCTI”) is a\r\nmedical transport company that was incorporated by Panossian on September 21,\r\n2007, at which time he was the sole shareholder of the company.\r\n(Cross-Complaint filed Aug. 3, 2016 (“CC), p.2.) On or about January 5, 2008,\r\nPanossian’s friend Idak Avakian (“Avakian” or “Eddie”) invested in GCTI and\r\nbecame a shareholder and its Chief Financial Officer. (Id.) At the time,\r\nAvakian was in a serious relationship with Artine Safarian (“Safarian”) (Id.)\r\nPanossian and Avakian hired Safarian, Safarian then became GCTI’s operations\r\nmanager and with Avakian she handled GCTI’s financials. (Id.) Over the years, Avakian and Safarian\r\ngained Panossian’s trust. (Id.)

In or about November or\r\nDecember of 2013, Safarian convinced Panossian and Avakian to move their\r\nvehicle loan to Chase, from BBCN bank, because Safarian alleged her friends at\r\nChase could get GCTI a better rate. (Id. at 6.) Safarian handled the loan process on\r\nGCTI’s behalf and Panossian alleges that only the signature pages of the loan\r\ndocuments were presented to him and that a Chase employee and Safarian informed\r\nhim he would not be personally liable for the debt. (Id. at 6.) On or about July of 2014, GCTI needed to do a line of credit\r\nincrease and Safarian allegedly requested Panossian and Avakian to allow her to\r\nhandle the line of credit increase. (Id. at 7.) Panossian alleges that once again he was\r\nonly presented with signature pages and informed that there was no personal\r\nliability for this increasing line of credit. (Id. at 7.)

By September 2014 after\r\nbeing unable to secure additional credit or collect GCTI’s outstanding accounts\r\nreceivables, Panossian and Avakian were concerned with the way business was\r\ngoing and considered winding down since at the time GCTI could have paid off\r\nall its debts and still allowed Panossian and Avakian to walk away with several\r\nmillion dollars each in profit. (Id. at 3.) Safarian expressed her disapproval of\r\nwinding down GCTI and expressed her ability to re-habilitate GCTI’s situation\r\nby re-negotiating the debt, collecting the accounts receivables, and bringing\r\nin additional business. (Id. at 8.) However, to do so, Safarian asked\r\nPanossian and Avakian to step away from the company until May 31, 2015.\r\nPanossian agreed to let Safarian run GCTI until May 31, 2015, in an agreement\r\nmemorialized by attorney Mr. Feffer on September 23, 2014. (Id. at 3.) A few weeks after September 23, 2014, Avakian and Safarian\r\nasked Panossian to give his 95% ownership in GCTI to Safarian so Safarian could\r\nre-negotiate GCTI’s debt as the owner. (Id. at 8.) Panossian declined, but after several\r\nrequests Panossian agreed to transfer 50% of his shares in GCTI to Safarian in\r\nlate October so Safarian could re-negotiate the debt (later Panossian alleges\r\nhe discovered Safarian had changed the paperwork to reflect September 15, 2014\r\nas the transfer date, which was a week prior to their meeting with attorney\r\nFeffer wherein the parties agreed to let Safarian run GCTI). (Id. at 9.) Panossian alleges he made it clear to Safarian and Avakian that\r\nupon completion of her task, the shares would be transferred to Avakian and\r\nprior loans that Avakian made to GCTI would be satisfied. (Id. at 9.)

By the end of October,\r\nbeginning of November of 2014, Safarian allegedly contacted Panossian and said\r\nGCTI was in a position much worse than anticipated and that the only real\r\noption was to sell GCTI. (Id. at 9.) Safarian told Panossian that unknown to her,\r\nthe employee at Chase tricked them, and Panossian and Avakian were personally\r\nliable for $825,00.00 to Chase. (Id. at 9.)

Around this time, Safarian\r\ninformed Panossian that she had been contacted by Cross-Defendant/Moving Party\r\nRobert Spiro (“Spiro”) who claimed he had been trying to contact Panossian for\r\nthe last six months. (Id. at 9.) Panossian agreed to allow\r\nSafarian to engage in discussion with Spiro regarding the sale of GCTI. (Id.)\r\n

On or about December 2, 2014, Panossian was presented\r\nwith a letter offer of intent from Spiro wherein Spiro was to purchase certain\r\nGCTI assets and pay the $825,000.00 loan to Chase, $325,000.00 to Safarian (on\r\nbehalf of Avakian for $225,000.00 Avakian previously took by way of loan from\r\nhis home he shared with Safarian and for an additional $100,000.00 Safarian\r\nclaimed she had loaned the company during the previous months), $200,000.00 to\r\nPanossian’s brother, and $50,000.00 directly to Panossian. (Id. at 10.)\r\nSpiro was also to refinance the remaining debt of GCTI to his new company or\r\npay it off completely within 90 days and inject $400,000.00 in working capital\r\nto keep GCTI operating until the deal was consummated. (Id. at 10.)

On or about December 23, 2014, Safarian approached\r\nPanossian and said in order for the sale of the assets to proceed, time was\r\nessential and Panossian needed to sign a stock transfer agreement to Spiro. (Id.)\r\nPanossian, not reading the paperwork, asked Safarian if anything had changed in\r\nthe terms of the letter offer of intent and Safarian reassured Panossian\r\nnothing changed and to sign so she could deliver Panossian his $50,000.00 check\r\nas Spiro’s good-faith commitment to the transaction. (Id.)

By May of 2015, Spiro had not performed a majority of\r\nhis obligations under the letter of intent. (Id.) Safarian claimed that\r\nChase was unwilling to refinance the loans with the company and that GCTI was\r\ninvolved in litigation that was stalling the transaction. On or around May 5,\r\n2015, Safarian contacted Panossian and told him she only had a few hours to\r\nfile the paperwork with the County to transfer the licensing from GCTI to\r\nPhoenix Ambulance. (Id.) Panossian told Safarian to email it to\r\nhim, but Safarian refused stating she needed to meet immediately because the\r\ndeadline was that day. (Id.) Safarian allegedly presented Panossian with signature\r\npages and rushed him through signing so she could have enough time to file the\r\npaperwork. (Id.) Within 30 minutes, Panossian told Safarian not\r\nto submit the paperwork so he could review the documents, but Safarian told\r\nPanossian it had already been filed. (Id at 11.) Upon receiving the finalized copies,\r\nPanossian noticed he signed another Stock Transfer Agreement, this time to a\r\ndifferent limited liability company. (Id.)

Panossian alleges that Spiro assured Panossian that\r\nnothing had changed from the terms of the letter of intent and Panossian would\r\nreceive everything he was promised. (Id.) In addition, Panossian confronted Spiro\r\nand Safarian about Safarian’s unauthorized increases of Panossian’s personal\r\nDiscover card limit and unauthorized use of about $22,000.00 of his credit.\r\nSpiro agreed he would pay his Discover bill and told Panossian that Safarian\r\nhad not been paid since she began running GCTI since the end of September 2014.\r\n(Id.)

Over the next year,\r\nPanossian communicated with Safarian and Spiro both verbally and in writing,\r\nasking when the sale would be finalized. (Id.) Each time there was something preventing the\r\ndeal from closing and each time Spiro assured Panossian that the sale of GCTI\r\nwould be finalized and he would be compensated as promised. (Id.)

On or about May 18, 2016, Panossian received a cryptic\r\ntext message from Safarian telling him not to sign anything on GCTI’s behalf\r\nand avoid any registered mail until we clear the Chase loan. (Id.)\r\nPanossian later discovered this was the lawsuit filed by Plaintiff in the\r\nunderlying action.

Since than Panossian has not\r\nhad communication with Safarian or Spiro and discovered that Safarian and Spiro\r\nwere having an affair which ended Avakian and Safarian’s relationship. (Id.) Panossian believes GCTI actually bought out Medcoast Ambulance from\r\ncollected accounts receivables that Safarian and Spiro told Panossian they were\r\nunable to collect. (Id. at 12.)

Cross-Complainant Panossian\r\nfiled a lawsuit and alleged causes of action against the moving party Spiro for\r\nIntentional Misrepresentation, Negligent Misrepresentation, Conversion, and\r\nDeclaratory Relief.

Spiro now files a Motion\r\nfor Summary Judgment, or in the alternative, summary adjudication.

PROCEDURAL

As a preliminary matter,\r\nthe Court notes that the moving party did not follow the Court’s Orders of\r\n08/20/2021, wherein the Court allowed the moving party to amend its Separate\r\nStatement of Issues and conform their testimonial statements only. Moving party\r\nadded additional information in its Separate Statement to facts that were\r\npreviously undisputed but are now disputed by the non-moving party because of\r\nthis additional information.

Additionally, although the\r\nCourt had moving party amend its Separate Statement for the sake of clarity,\r\nthe moving party now submits a separate statement for 4 separate causes of\r\naction – intentional misrepresentation, negligent misrepresentation,\r\nconversion, and declaratory relief. All four of those causes of actions contain\r\ndifferent elements to support a claim for each cause of action, and the moving\r\nparty unfortunately chose to include the same material facts copy-pasted\r\nfor all four issues to support each issue.

SUMMARY JUDGMENT LEGAL STANDARD\r\nThe function of a motion for summary judgment\r\nor adjudication is to allow a determination as to whether an opposing party cannot\r\nshow evidentiary support for a pleading or claim and to enable an order of\r\nsummary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP\r\n§ 437c(c) “requires the trial judge to grant summary judgment if all the\r\nevidence submitted, and ‘all inferences reasonably deducible from the evidence’\r\nand uncontradicted by other inferences or evidence, show that there is no\r\ntriable issue as to any material fact and that the moving party is entitled to\r\njudgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7\r\nCal.App.4th 1110, 1119.) “The function\r\nof the pleadings in a motion for summary judgment is to delimit the scope of\r\nthe issues; the function of the affidavits or declarations is to disclose whether\r\nthere is any triable issue of fact within the issues delimited by the\r\npleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima\r\n(1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as\r\nframed by the complaint, the defendant moving for summary judgment must satisfy\r\nthe initial burden of proof by presenting facts to negate an essential element,\r\nor to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) The\r\nplaintiff or cross-complainant shall not rely upon the allegations or denials\r\nof its pleadings to show that a triable issue of material fact exists, but\r\ninstead, shall set forth the specific facts showing that a triable issue of\r\nmaterial fact exists as to the cause of action or a defense thereto. (CCP\r\n§437c(p)(2).) Courts “liberally construe the evidence in support of the party\r\nopposing summary judgment and resolve doubts concerning the evidence in favor\r\nof that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has\r\nmet that burden, the burden shifts to the plaintiff to show that a triable\r\nissue of one or more material facts exists as to that cause of action or a\r\ndefense thereto.

To establish a triable\r\nissue of material fact, the party opposing the motion must produce substantial\r\nresponsive evidence. (Sangster v. Paetkau\r\n(1998) 68 Cal.App.4th 151, 166.)

ANALYSIS\r\n4^th Cause of Action – Intentional Misrepresentation (commonly\r\nknown as fraud)

The elements of fraud, which give rise to the tort\r\naction for deceit, are: 1) Misrepresentation (false representation,\r\nconcealment, or nondisclosure), 2) Knowledge of falsity, 3) Intent to defraud\r\nto induce 4) Justifiable Reliance, and 5) Resulting damage. (Golden Eagle\r\nLand Investment, L.P. v. Rancho Santa Fe Assn. (2018) 227 Cal.App.5th 399,\r\n428 citing Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1059-160.)

One of the primary disputes in this case is whether a\r\nStock Transfer Agreement or a prior Letter of Intent controls the liabilities of\r\nthe parties in the instant action. The moving party hopes the Stock Transfer\r\nAgreement controls because then it agues it does not have to pay back the Chase\r\nbank loan. The non-moving party hopes the Letter of Intent controls because\r\nthen the moving party would have to pay back the Chase bank loan.

Whether the letter of intent or the Stock Transfer Agreement\r\nis controlling, the Court need not determine in order to determine the ruling\r\non the instant motion for summary judgment, as this Court’s ruling can be made\r\non other grounds.

Moving Party, Cross-Defendant Spiro, argues he should\r\nprevail on summary judgment as to intentional misrepresentation because Spiro\r\nnever made any representations to Panossian which could be relied upon\r\ntherefore the essential element of a representation is wholly absent in this\r\ncase. (Motion Summary Judgment Spiro “MSJ Spiro”, p. 6.) Spiro argues that\r\nPanossian admits that he never met, spoke with, or communicated with Spiro. (Id.)\r\nSpiro also argues that Panossian admitted that when he signed the Stock\r\nTransfer Agreement he had been dealing only with Artine Safarian.

In attempts to prove its point, Spiro attempts to make\r\nseveral arguments. These include: 1) All communications with Panossian were\r\nthrough Safarian and Safarian is not an agent of Spiro; 2) Panossian signed the\r\nStock Transfer Agreement and governing law states that even if he didn’t read\r\nthe contract he is still bound by its terms; 3) The Stock Transfer Agreement\r\ncontains an integration clause that states it supersedes all prior agreements\r\nand no amendment can be binding unless executed in writing; and 4) The Parol\r\nEvidence Rule bars Panossian from presenting oral testimony or extrinsic\r\nevidence contrary to the Stock Transfer Agreement.

The problem with Spiro’s arguments is that they are\r\nall focused on the premise that Spiro did not communicate with Panossian before\r\nsigning the Stock Transfer Agreement and all communications before signing the\r\nStock Transfer Agreement were with Safarian, not Spiro. Therefore, Spiro argues\r\nhe cannot be liable for Intentional Misrepresentation if he made no\r\nrepresentations to Panossian. Even if the Court were to assume that Spiro is\r\ncorrect and Safarian is not an agent of Spiro, Spiro ignores the fact that\r\nSpiro made representations to Panossian after the execution of\r\nthe Stock Transfer Agreement, and further ignores the reasonable inference that\r\nSafarian and Spiro were indeed acting as agents of each other vis a vi’\r\nPanossian.

Panossian argues that after the Stock Transfer\r\nAgreement was signed, Spiro made representations that Spiro would pay the Chase\r\nloan, despite the fact that the Stock Transfer Agreement makes no mention of\r\nSpiro paying back the Chase loan. In Cross-Complainant’s Compendium of Evidence\r\nin Exhibit O, Panossian submitted text messages that are alleged to be from\r\nSpiro. (Panossian Compendium of Evidence, Ex. O & Panossian Decl. ¶24.) Panossian’s\r\nDeclaration states that the text messages from Spiro are true and correct\r\ncopies of text messages from Spiro regarding the Chase loan. (Panossian Decl. ¶24.)\r\nOn June 10, 2015, which would be after the date that Spiro alleges the Stock\r\nTransfer Agreement was signed, (Spiro alleges it was signed March 3, 2015\r\naccording to his Declaration, see Spiro Decl. ¶16) Spiro states, “In the\r\nmeantime, we’re going to make the payment. I hope this is acceptable.” (Panossian\r\nCompendium of Evidence, Ex. O.)

In Spiro’s Reply, Spiro continues to emphasize that he\r\nnever had or made any communications/representations with or to Panossian. Spiro further urges that the Letter of Intent\r\nis not controlling and rather the Stock Transfer Agreement is controlling because\r\nthe Stock Transfer Agreement contained a fully integrated clause; therefore,\r\neven if the letter of intent might have been binding, it was fully superseded\r\nby the Stock Transfer Agreement. (Spiro Reply, p. 9.)

Spiro has the burden to establish that Panossian can\r\nnot establish an essential element of his claim, yet there remains dispute as\r\nto a material fact since it appears Spiro did in fact make a representation to\r\nPanossian after the Stock Transfer Agreement was signed.

Further, in Spiro’s Reply, Spiro does not address the\r\nstatement made after the Stock Transfer Agreement was signed, but rather objects\r\nto Panossian’s evidence arguing that there is no foundation and the text\r\nmessages have not been properly authenticated to indicate when these text\r\nmessages were sent, the phone numbers of the people to whom they were sent, or facts\r\nthat could confirm the party responding to the text was in fact Spiro. (Spiro\r\nEvidentiary Objections p. 7-8.) Spiro also alleges the text messages don’t\r\nsatisfy the requirements of Evidence Code §§1400 and 1401 for authentication. (Id.)\r\nHowever, Spiro does not indicate why these texts don’t comply with the Evidence\r\nCode. Since Panossian included a declaration that these are the true and\r\ncorrect copies of the text messages he received from and sent to Spiro, the\r\nCourt overrules Spiro’s objection to the text messages.

The Court finds that there is a dispute to a material\r\nfact. Panossian presented a text message wherein, after the Stock Transfer\r\nAgreement was signed, Spiro stated, “In the meantime, we’re going to make the\r\npayment. I hope this is acceptable.” (Panossian Compendium of Evidence Ex. O.)

It is reasonably deducible that Spiro could have been\r\nreferring to paying the Chase loan that is in dispute considering the context\r\nof: the other text messages in Exhibit O; from the letter of intent that Panossian\r\nsubmitted in Exhibit B of its compendium that Spiro signed wherein Spiro’s\r\ncompany would pay the Chase loan; and from Panossian’s Declaration in paragraph\r\n21 where he refers to an email (Exhibit L of Panossian Compendium) that\r\nSafarian sent wherein Safarian says on May 19, 2015 that they “have been\r\nlooking for options to refinance the entire $1.6 million even though on the\r\nL.O.I. there was only an agreement for the term loan and not for the line of\r\ncredit.”

TENTATIVE RULING: Motion\r\nfor summary judgment as to the fourth cause of action is DENIED.

5^th Cause of Action – Negligent\r\nMisrepresentation

Moving Party uses the same argument for summary\r\njudgment/adjudication for negligent misrepresentation that it used for\r\nintentional misrepresentation. Thus, the Court likewise DENIES moving\r\nparty’s motion with respect to negligent misrepresentation.

6^th Cause of Action – Conversion

Conversion is the wrongful exercise of dominion over\r\nthe property of another. The elements of a conversion claim are: 1) the\r\nplaintiff’s ownership or right to possession of the property, 2) the\r\ndefendant’s conversion by a wrongful act or disposition of property rights; and\r\n3) damages. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.)

Spiro argues that: 1) Panossian voluntarily delivered\r\nhis shares of GCTI to Nena for consideration; 2) the conversion cause of action\r\nis directed at Spiro, not Nena; and 3) the facts are not disputed that Nena\r\n(who is not a party to this action) received Panossian’s shares as a bona fide\r\npurchaser for value. (Spiro MSJ, p. 10.) Spiro then argues that since Nena gave\r\nvalue and took delivery of the ownership interest, Panossian would have to\r\nprove that Nena obtained its shares in the company by fraud and therefore was\r\nnot a bona fide purchaser. (Id.) \r\n\r\nAs a preliminary matter, the Court notes that the burden is not on Panossian to\r\nprove that Nena obtained its shares in GCTI by fraud. Spiro, the moving party,\r\nhas the burden to show that Panossian can not meet an essential element of a\r\nconversion claim or that Spiro has a defense to conversion.

Spiro argues Panossian voluntarily delivered his\r\nshares of GCTI stock to Nena for consideration received and Spiro cites Facts\r\n15, 16, 42, and 43. However, there is a dispute as to this material fact.

Panossian argues that a check was issued by RDS\r\nVentures and not Nena Holdings. (Panossian Compendium of Evidence, Ex.\r\nC.)

However, this check issued to Panossian on 12/23/2014\r\nfor $50,000.00 is problematic for several reasons.

First, it presents a dispute that Nena did not provide\r\nconsideration, but RDS Ventures provided consideration, and moving party has\r\nnot shown that there is no dispute as to a material fact since Nena did provide\r\nconsideration as moving party alleges and Nena may not be a bona fide purchaser\r\nas moving party alleges. [This is if we assume this check from RDS was actually\r\nfor the GCTI stock. Since Panossian submitted this check, and the memo of the\r\ncheck doesn’t state what it is for, in theory there is no telling what this\r\ncheck was actually offered for in consideration.]

Second, in Spiro’s Declaration, Spiro states in\r\nparagraph 16 that Panossian and Avakian agreed to sell their interest in GCTI\r\nto Nena for the amount of $100,000.00 ($50,000 each for Panossian and Avakian).\r\nFurther in paragraph 16 of his Declaration, Spiro states that Exhibit C is a\r\ntrue and correct copy of the fully executed Stock Transfer Agreement dated\r\nMarch 3, 2015 whereby Panossian and Avakian sold all their stock interest in\r\nGCTI to Nena.

If the court assumes Spiro’s Declaration to be true,\r\nit notes that Spiro has offered no evidence to establish that Nena\r\nprovided consideration for shares of GCTI because Spiro provides no proof of\r\nconsideration. The only potential proof of consideration before the Court is a\r\ncheck offered by Panossian, the nonmoving party, dated in December of 2014. However,\r\nif this check from RDS Ventures to Panossian is for the consideration of GCTI\r\nstock, it wouldn’t make sense when one considers Spiro’s declaration.

Spiro’s declaration states that Exhibit C is a true\r\nand correct copy of the fully executed Stock Transfer Agreement dated March 3,\r\n2015. If this is true, the aforementioned agreement states on page 1,\r\n“Panossian hereby assigns, transfers, conveys, grants, bargains, sets over,\r\nreleases, delivers, and confirms unto to Nena all his right, title and interest\r\nin the Company, such that each of Panossian shall no longer have any interest\r\nin the Company.” It would not make any sense for a check that was issued on\r\nDecember 23, 2014 to be in consideration for a Stock Transfer Agreement that did\r\nnot even occur until the future in March 3, 2015. While moving party makes the\r\nargument it is a bona fide purchaser, it provides no evidence to support this\r\ncontention.

Nor is the Court persuaded by moving party’s second\r\nargument wherein it argues that the conversion cause of action is directed\r\nagainst Spiro and not Nena, and therefore since Nena is a non-party Spiro\r\ncannot be liable for conversion. On one hand, Spiro is asserting it cannot be\r\nliable for conversion for a non-party’s actions, but on the other, Spiro is\r\narguing the non-party Nena’s actions as a bona fide purchaser are currently\r\nshielding Spiro from liability for conversion. These propositions seem to be in\r\ndirect contradiction of each other in that in one instance Nena’s actions are inapplicable\r\nto Spiro but in the other instance they are applicable to Spiro.

The Court finds that there is dispute as to a material\r\nfact and therefore it DENIES moving party’s motion with respect to\r\nconversion. Moving party did not meet its burden in showing there is no dispute\r\nas to a material fact. Moving party argued it was a bona fide purchaser of\r\nvalue but did not present evidence that it was a bona fide purchaser.\r\nAdditionally, opposing party disputes that Nena was a bona fide purchaser by\r\nsubmitting evidence of a check issued by RDS and not Nena.

8th Cause of Action – Declaratory Relief\r\nMoving\r\nparty’s motion with respect to declaratory relief is DENIED.

Moving party does not explain the legal standard for\r\ndeclaratory relief. Moving party thus fails to meet its burden in establishing\r\nhow the arguments it asserts is either proving that Plaintiff cannot establish\r\nan essential element of its claim or how it is establishing a defense to the\r\ncause of action for declaratory relief. Moving party cites no case law or statutes\r\nto support the argument that it asserts.\r\nTENTATIVE RULING: Motion\r\nfor summary judgment, or in the alternative summary adjudication, is DENIED.

**The Court notes that the Opposition to the Motion for\r\nSummary Judgment by Cross Complainants refers to an “Amended Cross Complaint.” However, the “Amended Cross Complaint” was\r\nnever filed with the Court. The Court thus makes this tentative ruling based on\r\nthe Complaint that it has before it. (Cross-Defendant Spiro\r\nrequested judicial notice of the cross-complaint that the Court already has on\r\nfile and upon which this ruling is based.)

**Cross-Defendant Artine Safarian joined in\r\nCross-Defendant Robert Douglas Spiro Jr.’s ex parte application to advance and\r\nspecially set hearing on motion for summary judgment or, in the alternative,\r\nsummary adjudication on 4/30/2021. However, Cross-Defendant Artine Safarian\r\nneither filed its own Motion, nor a joinder to Spiro’s Motion. Further,\r\nSafarian is involved in causes of action that Spiro is not involved in. Thus, no Motion is here granted as to\r\nSafarian.

Case Number: EC065055 Hearing Date: August 20, 2021 Dept: E

Case Number: EC065055    Hearing Date: May 28, 2021    Dept: E

MOTIONS TO COMPEL RESPONSES TO

(1) FORM INTERROGATORIES, SET ONE AND

(2) REQUESTS FOR DOCUMENTS, SET ONE

Date: 5/28/21 (8:30 a.m.)

Case: Summit Bridge Natl. Investments v. Gentlecare Transport, et al. (EC065055)

TENTATIVE RULING:

Cross-complainant Meguerditch Panossian’s Motions to Compel Initial Responses to Form Interrogatories, Set One and Requests for Production of Documents, Set One are GRANTED.

On January 13 and 14, 2021, cross-complainant Panossian served the first sets of Form Interrogatories and Requests for Production of Documents, respectively, on cross-defendant Robert Douglas Spiro, Jr. by email. (Jamison Decls. ¶ 4 & Ex. 1.) The deadline to serve responses to the discovery was February 16, 2021. (CCP §§ 2030.260(a), 2031.260(a) [discovery responses due 30 days after service]; 1010.6(a)(4)(B) [two court days added for electronic service].) Cross-defendant Spiro failed to serve responses prior to the filing of these motions. (Jamison Decls. ¶ 5.) Accordingly, all objections are waived. (CCP §§ 2030.290(a); 2031.300(a).)

The motions are GRANTED. Within fifteen (15) days of this ruling, cross-defendant Robert Douglas Spiro, Jr. is ordered to serve written verified responses, without objection, to Form Interrogatories, Set One and Requests for Production of Documents, Set One propounded by cross-complainant Meguerditch Panossian and produce documents that are responsive to Requests for Production of Documents, Set One.

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though . . . the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rule of Court 3.1348(a).) Although Spiro apparently intends to serve responses (see Snyder Decls. ¶ 3), there is no indication he responded as of the date of his response to the motions (i.e.., May 20, 2021), and, in any event, any such response would only have come months after these motions were filed. Accordingly, monetary sanctions against Spiro are warranted.

For failing to comply with discovery obligations and thereby forcing cross-complainant to file these two (2) motions, the Court imposes a total of $1,268 in monetary sanctions on cross-defendant Robert Douglas Spiro, Jr. and counsel of record, jointly and severally, based on three (3) hours of work (instead of the 11.4 hours claimed) at an hourly rate of $375, plus $23 for the video appearance fee and $120 for motion filing fees. Monetary sanctions shall be paid to cross-complainant Panossian’s attorney within 30 days hereof.

Case Number: EC065055    Hearing Date: May 21, 2021    Dept: E

MOTION TO COMPEL FURTHER RESPONSES

TO REQUEST FOR PRODUCTION OF

DOCUMENTS, SET ONE

Case:            Summit Bridge Natl. Investments v. Gentlecare Transport, et al. (EC065055)  

TENTATIVE RULING:

Cross-complainant Meguerditch Panossian’s Motion to Compel Further Responses to Requests for Production, Set One from Cross-Defendant Artine Safarian is GRANTED IN PART.

I. GENERAL OBJECTIONS

With respect to the General Objections, “[I]f a timely motion to compel has been filed, the burden is on responding party to justify any objection.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citing Coy v. Superior Court (1962) 58 Cal.2d 210, 220-21.) Cross-defendant Artine Safarian does not attempt to justify general objections. (Opp. at 6:7-8 [“Safarian does not object to serving amended responses removing reference to general objections, if that resolves the issue”].) Accordingly, Safarian is ordered to withdraw the general objections in further responses.

II. REQUEST NOS. 1, 2, 7, 14, AND 15 (Corporate and Financial Records)

With respect to Request Nos. 1, 2, 7, 14, and 15, the Court finds that Safarian’s objections are without merit. Unlike for interrogatories, there is no statute that prohibits document requests from being compound. (See CCP § 2030.060.) Further, Safarian does not state any authority for the proposition that cross-complainant Meguerditch Panossian is required to seek documents directly from GentleCare Transport, Inc. (“GentleCare”) or Medcoast Ambulance (“Medcoast”).

Safarian’s objection based on burden is without merit because she does not provide any evidence of the level of work that would be required to comply with the requests. (See West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 417 [“The objection based upon burden must be sustained by evidence showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought”].) Safarian only asserts in unverified argument that the requests encompass “potentially hundreds of thousands of pages, paper and electronic.” (Opp. at 6:25-7:2.) “An attorney's argument in pleadings is not evidence.” (Hebberd-Kulow Enterprises, Inc. v. Kelomar, Inc. (2013) 218 Cal.App.4th 272, 283.)

Safarian’s objection based on financial privacy is outweighed by Panossian’s need for the discovery. Corporations only have a limited right to privacy.” (SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 755.) Here, the requested documents pertain to Panossian’s allegation that Safarian used GentleCare’s funds for illegitimate, non-business purposes. (Cross-Compl. ¶¶ 59(a), (c).) Panossian also alleges that Safarian and cross-defendant Robert Douglas Spiro, Jr. induced him into transferring his shares to them by misrepresenting that the irreparable financial condition of GentleCare required the selling of the company (Cross-Compl. ¶ 44) and Spiro would be liable for the loans provided by Summit Bridge’s predecessor (Cross-Compl. ¶ 19). Based on these allegations, any right to privacy that GentleCare or Medcoast have is overcome by Panossian’s allegation that GentleCare’s financial condition prior to Panossian’s transfer of his shares did not necessitate the selling of the company and that Safarian and Spiro converted/wrongfully disposed of GentleCare funds, in which Panossian has an interest, for non-business purposes.

Panossian has standing because he is not suing to recover on behalf of the corporation but for his own loss as a former shareholder of GentleCare who Safarian purportedly fraudulently induced to transfer his shares. “‘[A] direct action [is one] filed by the shareholder individually (or on behalf of a class of shareholders to which he or she belongs) for injury to his or her interest as a shareholder.” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 650, quoting Friedman, Cal. Practice Guide: Corporations (The Rutter Group 2005) ¶ 6:598, p. 6–127, emphasis in original.) Accordingly, Panossian was not required to initiate a derivative action on behalf of any corporation.

Safarian also contends that documents about Medcoast are irrelevant due to bankruptcy. In the order addressing Panossian’s claim, the Bankruptcy Court stated: “While this Order precludes the Claimant from making a claim against the Debtor, it is entered without prejudice to the ability of Panossian to file a proof of interest, if and when the Court sets a bar date for the filing of such documents.” (Spiro Decl. ¶ 15 & Ex. J attached to Motion to Quash Subpoena filed on April 12, 2021.) Accordingly, the issue of whether Medcoast can be held liable for Panossian’s claims have not been finally resolved.

For the foregoing reasons, the motion is GRANTED as to Request Nos. 1, 2, 7, 14, and 15.

III. REQUEST NOS. 3 AND 6 (Agreements Re: Sale of GentleCare Transport)

With respect to Request Nos. 3 and 6, Safarian does not attempt to justify her objections. Accordingly, the motion is GRANTED as to Request Nos. 3 and 6. To the extent that Panossian maintains that documents other than those already produced exist, Safarian’s response complies with CCP § 2031.220 because she states in a verified response that she produced all responsive documents of which she is aware. The veracity of the discovery response can be addressed in further discovery and/or at trial. Accordingly, Safarian is only ordered to serve further responses without objections. No further production of documents is required.

IV. REQUEST NOS. 4 AND 5 (Safarian’s Communications with Avakian or Panossian)

As phrased, Request Nos. 4 and 5 are overbroad because they are not limited by subject. While Panossian maintains that he has “no interest in communications which are not reasonably related to the claims in this Action” (Reply at 8:4-5), the requests are not limited to the claims in this action as phrased. Panossian offers no modification to the requests. The Court is under no obligation to redraft the interrogatories. (Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 851.)

The motion is DENIED as to Request Nos. 4 and 5.

V. REQUEST NOS. 8-10 AND 12 (Communications with Bank Employees)

With respect to Request Nos. 8-10 and 12, the objection regarding financial privacy is unavailing for the reasons stated above. The objections regarding overbreadth and burden are without merit because the requests are limited to Safarian’s communications with bank representatives. Accordingly, the requests are narrowly tailored to the allegations concerning loans to the corporate cross-defendants.

The motion as to Request Nos. 8-10 and 12 is GRANTED. Safarian is ordered to withdraw her objections in further responses.

VI. REQUEST NO. 11  (Communications with Spiro)

Safarian maintains that any documents generated after Panossian’s transfer of shares in March 2015 are irrelevant. However, the request is appropriately limited to the subject of “the sale of the business of GentleCare Transport or the sale of shares from Meguerditch Panossian.” Even if the communications occurred after the execution of the Stock Transfer Agreement, they are still relevant to Panossian’s claims and are therefore discoverable.

The motion as to Request No. 11 is GRANTED. To the extent that Safarian maintains that certain responsive documents are privileged under a joint defense agreement with co-defendant Spiro, Safarian may serve a privilege log, pursuant to CCP § 2031.240(c)(1). (See

OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 890 [joint defense agreement may product documents containing “information shared in confidence by a client with his or her attorney, a legal opinion formed and advice given by the lawyer in the course of the attorney-client relationship, or a writing reflecting an attorney's impressions, conclusions, or theories”].) However, communications between Safarian and Spiro where no attorney-client or work product privilege applies are discoverable. (OXY Resources, 115 Cal.App.4^th at 893.)

VII. REQUEST NO. 13 (Communications with Employees)

Safarian maintains that this request implicates the right to privacy of perhaps over one hundred employees. However, as phrased, Panossian seeks communications, such as emails, in the scope of employment. The right to privacy does not prevent discovery of employees’ emails.

(TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 452 [“[T]he use of computers in the employment context carries with it social norms that effectively diminish the employee's reasonable expectation of privacy with regard to his use of his employer's computers”].)

However, the request is overbroad because it is not limited by subject matter. (See Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 221 [“Courts must insist discovery devices be used as tools to facilitate litigation rather than as weapons to wage litigation. These tools should be well calibrated; the lancet is to be preferred over the sledge hammer”].) As phrased, the request seeks emails that pertain not only to the financial condition and ownership status of the corporate cross-defendants, but also to the operation of the businesses.

The motion as to Request No. 13 is DENIED.

VIII. REQUEST NOS. 16-21 (Documents Re: Affirmative Defenses)

Safarian contends that the word “support” is vague. This assertion is without merit. “A party may not deliberately misconstrue a question for the purpose of supplying an evasive answer. [Citation.] Indeed, where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) “Discovery necessarily serves the function of ‘testing the pleadings,’ i.e., enabling a party to determine what his opponent's contentions are and what facts he relies upon to support his contentions.” (Burke v. Sup. Ct. (1969) 71 Cal.2d 276, 281, citing Singer v. Sup. Ct. (1960) 54 Cal.2d 318, 323-25.)

Accordingly, the motion as Request Nos. 16-21 is GRANTED. Safarian is ordered to withdraw her objections in further responses.

IX. CONCLUSION AND MONETARY SANCTIONS

The motion is GRANTED IN PART. No later than fifteen (15) days hereof, cross-defendant Artine Safarian shall serve further verified responses, without objection, to Request for Production, Set One, Nos. 1-3, 6-10, 12, and 14-21. With respect to Request for Production, Set One, No. 11, Safarian may serve a privilege log for responsive documents. For Request for Production, Set One, Nos. 3, 6-10, 12, and 16-21, no further document production is required.

With respect to Panossian’s request for sanctions, although the motion is granted in part, on balance, Safarian did not oppose this motion with substantial justification. Of note, Safarian’s objections based on financial privacy were without merit. Further, even though certain of Panossian’s requests were overbroad, Safarian did not attempt to justify her other objections.

Safarian maintains that Panossian did not sufficiently meet and confer before filing this motion. However, on March 19, 2021, Panossian served what essentially amounts to a separate statement giving his reasons for requesting further responses. (Jamison Decl. ¶ 6 & Ex. C.) On March 22, 2021, Safarian dismissed Panossian’s detailed arguments in sweeping fashion by stating that she would not dismiss her objections. (Jamison Decl. ¶¶ 7-8 & Ex. D.) Even though Safarian stated that she was willing to discuss the issue further, Panossian had already presented his arguments as reasonably necessary in his March 19, 2021 letter. While Safarian states that she intended to generate a letter to address the issues (Aljian Decl. ¶ 5), given her general rejection of Panossian’s arguments in her March 22, 2021 email, Panossian was not obligated to wait before filing this motion.

Because Safarian did not oppose this motion with substantial justification, the Court imposes monetary sanctions on cross-defendant Artine Safarian based on 5 hours of work (instead of the 9.5 hours claimed) at an hourly rate of $375, plus $60 in filing fees, for a total of $1,935. Such sanctions are ordered to be paid to cross-complainant Meguerditch Panossian’s counsel of record within thirty (30) days hereof.

MOTION FOR LEAVE TO FILE

SECOND AMENDED CROSS-COMPLAINT

Case: Summit Bridge Natl. Investments v. Gentlecare Transport, et al. (EC065055)

TENTATIVE RULING:

Cross-Complainant Meguerditch Panossian’s Motion for Leave to File Second Amended Cross-Complaint is DENIED.

Cross-Complainant Meguerditch Panossian seeks leave to file a Second Amended Cross-Complaint to add a cause of action for Equitable Indemnity. As a preliminary matter, the Court notes that the first and only cross-complaint filed by Panossian is the one filed on August 3, 2016. No First Amended Cross-Complaint appears in the court file. Accordingly, the Court treats this motion as a Motion for Leave to File First Amended Cross-Complaint.

Requests for leave to amend will normally be granted unless (a) the party seeking to amend has been dilatory in bringing the proposed amendment; and (b) the delay in seeking leave to amend will cause prejudice to an opposing party. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.)

Panossian initially filed his Cross-Complaint on August 3, 2016. Based on the five-year rule under CCP § 583.310, plus the additional six months under Emergency Rule of Court 10, the deadline for Panossian to bring his cross-claims to trial is February 3, 2022. (Bright v. American Termite Control Co. (1990) 220 Cal.App.3d 1464, 1468.) Mindful of such deadline, at the January 20, 2021 trial setting conference, the court set the matter for trial on August 2, 2021, which the Court subsequently continued at the request of the parties to October 18, 2021 in order to accommodate their outstanding requests for and disputes concerning discovery.

Even assuming (for purposes of this motion only) that Panossian’s proposed cause of action for Equitable Indemnity did not accrue until December 16, 2020 when judgment was entered against Panossian, the Court finds Panossian did not exercise reasonable diligence in seeking leave to amend under the circumstances. Notably, Panossian made no mention of any contemplated additional cause of action in his January 15, 2021 Trial Setting Conference Statement. Nor did Panossian make any such mention at the January 20, 2021 trial setting conference itself. Instead, Panossian waited until March 23, 2021 to file the instant motion seeking leave to amend – over three months after Panossian contends the cause of action accrued and two months after trial had been set based on Panossian’s representations about that trial would entail. Further, using the Court’s reservation system for motions, Panossian scheduled the hearing on such motion for May 14, 2021 and made no effort to advance the hearing. Under the circumstances, in this aging case with the five-year deadline approaching, the Court finds Pannossian was dilatory in seeking leave to amend his cross complaint.

Further, adding the new cause of action for Equitable Indemnity, wherein Panossian seeks to recover fees that he incurred in defending against the claims of Summit Bridge (Proposed Second Am. Cross-Complaint ¶ 79; Prayer for Relief ¶ 8), would prejudice cross-defendants at this stage of the proceedings. Cross-defendants would have to conduct discovery concerning the basis for and amount of years of fees and costs for which Panossian claims they should be found liable.

Given the imminent arrival of the five-year date to commence trial, the merit of Panossian’s claims of fraudulent inducement and conversion against cross-defendants can be tried on the current trial date of October 18, 2021. If Panossian wishes to proceed with a claim for equitable indemnity against these cross-defendants, he will have to do so by way of a separately filed action. The motion is DENIED.

Finally, the Court finds that Panossian’s operative Cross-Complaint is the one filed on August 3, 2016. The Court notes that, according to the Request for Dismissal filed as to JPMorgan Chase Bank NA on November 30, 2017, Panossian purportedly filed an Amended Cross-Complaint on February 23, 2017. The Court’s docket does not reflect that Panossian filed an Amended Cross-Complaint on February 23, 2017, or at any other time subsequent to filing his initial Cross-Complaint on August 3, 2016. Cross-Defendnat Safarian, however, appears to believe there may have been such an Amended Cross Complaint. (Safarian Opp. at 3 [“On or about February 23, 2017, Panossian filed the FACC . . .”].) Accordingly, the parties may stipulate to the filing of the First Amended Cross-Complaint purportedly filed on February 23, 2017, designate which previously filed answers are deemed responsive to the First Amended Cross-Complaint, and submit a proposed order for the Court’s signature. In the absence of any such stipulation or other finding by the Court upon properly made request by a party to this action, the operative Cross-Complaint shall be the one filed by Panossian on August 3, 2016.

Case Number: EC065055    Hearing Date: September 04, 2020    Dept: E

MOTION TO ENFORCE SETTLEMENT

REQUEST TO ENTER STIPULATED JUDGMENT

[CCP §664.6]

Date: 9/4/20 (2:00 PM)

Case: Summit Bridge Nat’l Investments v. Gentlecare Transport (EC065055)

TENTATIVE RULING:

The hearing on (1) plaintiff Summit Bridge National Investments IV, LLC’s request for entry of stipulated judgment as to defendant Meguerditch Panossian and (2) defendant Panossian’s Motion to Enforce Settlement is CONTINUED to November 6, 2020, at 2:00 PM, in Department E.

Defendant’s motion seeks to enforce the Settlement Agreement between him and plaintiff Summit Bridge, which was entered into by these parties on October 24, 2018. Specifically, Panossian seeks a determination that his payment of $123,000 to plaintiff satisfied his obligations under the Settlement Agreement, thereby entitling him to dismissal of Summit Bridge’s action against him with prejudice. (See Shuck Decl. ¶ 7 & Ex. 3 [“Settlement Agreement”] at ¶ 9 [“Within ten (10) business days of Lender's acknowledgement of the satisfaction of all of the conditions set forth in this Agreement Lender shall dismiss the Litigation, with prejudice . . . “].)

Paragraph 2.1(b) of the Settlement Agreement provides that, within 18 months from the effective date of the settlement agreement, namely, by April 24, 2020, Panossian must pay to Summit Bridge $123,000, plus 50% of the net proceeds, if any, Panossian recovers from his cross-complaint in this action. Such combined payment obligation of $123,000 plus 50% of the net proceeds is capped at $448,000. It is undisputed Panossian has generated no proceeds from his cross-complaint. It is also undisputed that Panossian timely paid $123,000 on April 15, 2020. (Shuck Decl. ¶ 9 [confirming timely payment to plaintiff].) Panossian thus contends he has paid in accordance with paragraph 2.1(b), satisfied all his obligations under the Settlement Agreement, and is therefore entitled to dismissal of Summit Bridge’s complaint against him.

While acknowledging Panossian timely paid $123,000 in accordance with paragraph 2.1(b), Summit Bridge contends Panossian failed to meet all his obligations under the Settlement Agreement and relatedly seeks entry of a Stipulated Judgment against Panossian in the amount of $1,814,344.67, plus interests and attorney’s fees, pursuant to the Settlement Agreement’s default provision. (See Shuck Decl. Ex. 3 at ¶ 5 [providing for immediate entry of stipulated judgment “should [Panossian] default under the terms of this Agreement”; see also Shuck Decl. Ex. 3 at ¶ 3 [releasing Summit Bridge from agreement to accept an amount less than full payment of total indebtedness of $1,814,344.67 if Panossian “fail[s] to timely perform each and every condition, covenant and obligation set forth in this Agreement”].) The Settlement Agreement defines a default under the agreement as “[f]ailure to perform any covenant, condition or obligation (including, but not limited to, payment obligations) set forth in this Agreement.” (Shuck Decl. Ex. 3 at ¶ 7a.)

The outcome of the parties’ respective claims for relief turns on whether Panossian met his obligations with respect to litigating his cross-complaint for recovery in this action. Specifically, referring to Panossian as “Guarantor,” paragraph 2.1(b) of the Settlement Agreement provides: “Guarantor shall continue to prosecute Guarantor’s Cross-Complaint with due diligence and with dispatch . . . .” (Shuck Decl. Ex. 3 at ¶ 2.1(b).) Summit Bridge takes the position that it is the sole arbiter of whether Panossian has acted with due diligence and dispatch. Characterizing this perceived authority as its “mandatory concurrence” as to Panossian’s diligence (see Opp. at 3, 5), Summit Bridge misreads two provisions of paragraph 2.1(b) as conferring such.

First, immediately after the language requiring Panossian to act “with due diligence and with dispatch” is the caveat “unless and until Guarantor determines by an objective good faith standard, and with Lender’s concurrence, that continued prosecution of Guarantor’s Cross-Complaint would generate no more than a de minimus [sic] financial realization.” (Shuck Decl. Ex. 3 at ¶ 2.1(b).) That language merely provides that, if Panossian had wished to be relieved of his obligation to diligently pursue the cross-complaint, he needed Summit Bridge’s agreement that such prosecution would generate minimal financial gain at best. It says nothing about whether Summit Bridge’s concurrence is required for a determination of whether Panossian actually pursued his cross claims with diligence and dispatch. Second, paragraph 2.1(b) provides that Summit Bridge, in its “sole and absolute discretion,” may give Panossian an extension past March 1, 2020, to continue prosecuting the cross-complaint. (Shuck Decl. Ex. 3 at ¶ 2.1(b).) That provision, however, cannot reasonably be read as giving Summit Bridge the discretion (sole, absolute, or otherwise) to make the determination of whether Panossian has satisfied his obligation to pursue the cross-complaint with diligence and dispatch.

Thus, in addressing the parties’ competing claims for relief, the Court must ultimately determine whether Panossian acted “with due diligence and dispatch” in prosecuting his cross-complaint between October 24, 2018 (the effective date of the Settlement Agreement) and March 1, 2020 (the deadline for attempted recovery set forth in ¶ 2.1(b)). On this record, the Court cannot do so. Merely citing a list of occurrences and the fact that one of the cross-defendants (MedCoast Med Services Inc.) is in bankruptcy, Panossian makes the conclusory assertion that he “diligently prosecuted [his] Cross-Compliant from October 2018 through April 2020. (Reply at 8 [citing Acevedo Decl. ¶¶ 18-50].) Having staked out the position that it alone could decide the issue, Summit Bridge has submitted no evidence whatsoever concerning Panossian’s diligence or lack thereof.

Accordingly, the Court will hold an evidentiary hearing into whether Panossian prosecuted his cross-complaint with due diligence as required. Panossian and Summit Bridge may each simultaneously file and serve supplemental briefs not to exceed 10 pages, plus supporting declarations and evidence, by October 9, 2020. Any responses thereto (limited to 10 pages) shall be filed and served by no later than October 23, 2020. If the Court finds Panossian diligently prosecuted his Cross-Complaint, then Panossian is entitled to dismissal under paragraph 9 of the Settlement Agreement. If the Court finds that he did not, then Summit Bridge is entitled to entry of the stipulated judgment pursuant to paragraph 5 of the Settlement Agreement.