This case was last updated from Los Angeles County Superior Courts on 07/02/2019 at 01:17:25 (UTC).

A.G. PPROPERTIES, INC. VS. GREGORY M. LINZNER; NICOLE PEARLMAN

Case Summary

On 02/27/2018 A G PPROPERTIES, INC filed a Contract - Other Contract lawsuit against GREGORY M LINZNER NICOLE PEARLMAN. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judge overseeing this case is SHIRLEY K. WATKINS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6932

  • Filing Date:

    02/27/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

SHIRLEY K. WATKINS

 

Party Details

Plaintiffs and Cross Defendants

A.G. PROPERTIES INC.

A.G. PROPERTIES INC. A CALIFORNIA CORPORATION

SILVER JONATHAN

ROES 1 THROUGH 20 INCLUSIVE

1 THROUGH 20 INCLUSIVE ROES

Defendants and Cross Plaintiffs

DOES 1 TO 20

LINZNER GREGORY M.

PEARLMAN NICOLE D.

BOFI FEDERAL BANK A FEDERALLY CHARTERED

PLATTE RIVER INSURANCE COMPANY A NEBRASK

BOFI FEDERAL BANK

PLATTE RIVER INSURANCE COMPANY A NEBRASKA CORPORATION

BOFI FEDERAL BANK A FEDERALLY CHARTERED SAVINGS BANK DOE 1

Attorney/Law Firm Details

Plaintiff Attorney

ORTMANN DALE ALAN

Defendant Attorneys

MACKPRANG TRISTAN F.

COLEMAN DERRICK FIELDS

Cross Plaintiff Attorney

MACKPRANG TRISTAN FRANCIS

Cross Defendant Attorney

NEWFIELD SIMON E.

 

Court Documents

Complaint

2/27/2018: Complaint

Notice of Case Management Conference

2/27/2018: Notice of Case Management Conference

Civil Case Cover Sheet

2/27/2018: Civil Case Cover Sheet

Legacy Document

2/27/2018: Legacy Document

Legacy Document

3/8/2018: Legacy Document

Notice of Case Reassignment and Order for Plaintiff to Give Notice

3/9/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Amendment to Complaint (Fictitious/Incorrect Name)

4/5/2018: Amendment to Complaint (Fictitious/Incorrect Name)

Proof of Service of Summons and Complaint

4/9/2018: Proof of Service of Summons and Complaint

Proof of Service of Summons and Complaint

4/9/2018: Proof of Service of Summons and Complaint

Proof of Service of Summons and Complaint

4/20/2018: Proof of Service of Summons and Complaint

Answer

5/9/2018: Answer

Cross-Complaint

5/9/2018: Cross-Complaint

Legacy Document

6/4/2018: Legacy Document

Legacy Document

6/13/2018: Legacy Document

Legacy Document

6/13/2018: Legacy Document

Answer

6/13/2018: Answer

Proof of Service of Summons and Complaint

6/20/2018: Proof of Service of Summons and Complaint

Case Management Statement

7/18/2018: Case Management Statement

32 More Documents Available

 

Docket Entries

  • 05/06/2019
  • at 10:00 AM in Department T, Shirley K. Watkins, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 04/26/2019
  • at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Final Status Conference - Not Held - Advanced and Vacated

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  • 04/24/2019
  • at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Case Management Conference - Not Held - Advanced and Vacated

    Read MoreRead Less
  • 04/22/2019
  • at 1:30 PM in Department T, Shirley K. Watkins, Presiding; Non-Appearance Case Review

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  • 04/22/2019
  • Certificate of Mailing for (Minute Order (Non-Appearance Case Review) of 04/22/2019 and a copy of the Stipulation to Set Trial and Final Status Conference; Order Thereon filed 4-22-2019 and a copy of the Court's FSC and Trial Order printed on green paper); Filed by Clerk

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  • 04/22/2019
  • Stipulation and Order (To Set Trial and Final Status Conference); Filed by A.G. Properties, Inc., a California corporation (Plaintiff)

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  • 04/22/2019
  • Minute Order ( (Non-Appearance Case Review)); Filed by Clerk

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  • 04/03/2019
  • Notice (of Case Reassignment); Filed by A.G. Properties, Inc., a California corporation (Plaintiff)

    Read MoreRead Less
  • 04/02/2019
  • RETURNED MAIL (of Order for Plaintiff to give notice of Case Reassignment/Notice of Continuance of CMC)

    Read MoreRead Less
  • 03/27/2019
  • at 08:30 AM in Department T, Shirley K. Watkins, Presiding; Case Management Conference - Not Held - Advanced and Continued - by Court

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48 More Docket Entries
  • 04/09/2018
  • Proof of Service of Summons and Complaint; Filed by A.G. Properties, Inc., a California corporation (Plaintiff)

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  • 04/09/2018
  • Proof of Service of Summons and Complaint; Filed by A.G. Properties, Inc., a California corporation (Plaintiff)

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  • 04/05/2018
  • Amendment to Complaint (Fictitious/Incorrect Name); Filed by A.G. Properties, Inc., a California corporation (Plaintiff)

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  • 03/09/2018
  • at 00:00 AM in Department T; Unknown Event Type

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  • 03/09/2018
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

    Read MoreRead Less
  • 03/09/2018
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

    Read MoreRead Less
  • 03/08/2018
  • Miscellaneous; Filed by A.G. Properties, Inc., a California corporation (Plaintiff)

    Read MoreRead Less
  • 02/27/2018
  • Summons Filed

    Read MoreRead Less
  • 02/27/2018
  • Notice of Case Management Conference; Filed by null

    Read MoreRead Less
  • 02/27/2018
  • Civil Case Cover Sheet; Filed by A.G. Properties, Inc., a California corporation (Plaintiff)

    Read MoreRead Less

Tentative Rulings

Case Number: LC106932    Hearing Date: May 27, 2021    Dept: T

A.G. PROPERTIES, INC., CASE NO: LC106932

Plaintiff,

vs.

GREG M. LINZNER; et. al.

Defendants.

Dept. T

8:30 a.m.

Hearing: May 27, 2021

________________________________________________________________________

[TENTATIVE] ORDER RE:

MOTION FOR SUMMARY ADJUDICATION FILED 3/9/2021 BY CROSS-DEFENDANTS A.G. PROPERTIES AND JONATHAN SILVER AGAINST CROSS-COMPLAINANTS GREG LINZNER AND NICOLE PEARLMAN ON THE SECOND AND FIFTH CAUSES OF ACTION OF THE LINZNER'S FIRST AMENDED CROSS-COMPLAINT FILED 1/23/2020

The Motion for Summary Adjudication is DENIED as to both the Second and Fifth Causes of Action.

1. INTRODUCTION

Cross-Defendants A.G. Properties, Inc. ("AGP") and Jonathan Silver ("Silver") (collectively Cross-Defendants move for summary adjudication ("MSA") against the First Amended Cross-Complaint ("FACC") filed by Greg Linzner ("Linzner") and Nicole Pearlman ("Pearlman") (collectively "Linzners.") The motion places into issue the Second cause of action ("COA") for statutory disgorgement (BPC sec. 7031(b)) alleged only against Silver (identified in the Notice as Issue No. 2) and the Fifth COA for statutory disgorgement (BPC sec. 7031(b)) alleged only against AGP (identified in the Notice as Issue No. 1.)

2. DISCUSSION

Preliminarily, it is noted that the citations to the FACC are not cited for evidentiary purposes due to the lack of verifications attached to the FACC. The FACC citations are used to show and determine the scope of the relevant issues. Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal. App. 4th 60, 74.

As to the Second COA against Silver (i.e.: MSA Issue no. 2), Silver argues that there is no triable issue of material fact as to disgorgement because Silver was licensed by the Contractors State License Board ("CSLB") as AGP's CEO, president, Responsible Managing Officer ("RMO") and qualifying individual. The court has sustained objections to his evidence. However, Silver has misconstrued the allegations levied against him in the Second COA of the FACC. The Second COA alleges disgorgement for his alleged work performed on the construction project, as an individual, and not in his capacity as the CEO/President/RMO/qualifying individual of AGP. The FACC expressly alleges that it was Silver, individually, that performed the construction services (See FACC pars. 1 thru 32.) The Linzners expressly allege that they contracted with Silver, individually, but if it is proven at trial that the Linzners contracted with AGP, then the Linzners have pled the breach of oral contract and statutory disgorgement against AGP in the alternative. (See FACC pars. 40 and 45 of the Fourth and Fifth COA.) On this defect alone, there is sufficient grounds to deny the motion as to Issue No. 2.

Even without the misapplication of the allegations in the FACC, the Court notes that Silver's declaration is insufficient to present an undisputed fact regarding his capacity as AGP's employee at the time the contract was entered. (Material Fact ("MF") 4 - 6.) Silver's declaration attests that the "Linzners asked me for assistance making improvements to the Property (the "Project"). I agreed. At my direction, AGP thereafter performed various renovation work…" (italics added.) (Silver Decl. par. 7.) The testimony of Silver is silent as to his capacity when he entered the contract. It merely shows that it was he and the Linzners that were the contracting parties. Silver does not testify that he was acting as AGP's employee/president/RMO when he entered the agreement with the Linzners. Further, Silver attests that he directed AGP to perform the work. There is no testimony showing that the Linzners entered a contract with AGP. Without any specific and express testimony showing Silver's capacity at the time of entry, Silver's declaration is insufficient to dispute the allegation that the contracting parties were the Linzners and Silver, individually.

Even if Silver's declaration were to show that he was acting as an AGP employee when the contract was entered, the Linzners present their own testimony showing that they entered into the contract with Silver, as an individual, paid Silver in cash and checks (and not AGP.) These facts support the Linzners' contention that there is a triable issue of fact as to whether they contracted with Silver and not AGP (MF 4-5, 32-39: Pearlman Decl. pars. 4-5.) The evidence regarding payment to Silver presents a triable issue of fact as to the identity of the contracting party/contractor.

But even this evidence presented by the Linzners is disputed by Silver and thus shows additional disputed material facts. Silver's response to Linzners' additional evidence shows that Pearlman filed a claim against AGP's bond. (MF 32-33: Supp. Silver Decl.Exh. D, Pearlman letter.) With Pearlman's claim filed against AGP's bond, there is evidence, after entry into the contract, showing that the Linzners believed their contract was with AGP or at minimum made claims contrary to their position in the second COA. There are multiple facts to show that the issue of Silver's capacity at the time the contract was entered is triable and/or disputed.

As to the Fifth COA alleged against AGP (i.e.: MSA Issue No. 1), it is noted that the above factual dispute is relevant to this issue. The review of Silver's declaration shows that AGP has not established facts to show that they are the contracting party. Silver's testimony only shows that it was Silver (without any testimony as to his status) that directed AGP to perform the work. Without facts showing Silver's status at entry of the contract there is insufficient facts to show that the Linzners contracted with AGP. The issue of AGP's licensure is premature because AGP has not presented evidence to show their status as a contracting party. The MSA as to the Fifth COA requests the Court to presume that AGP is the contracting party. The Court does not make rulings based on presumptions, especially on MSAs, and does not issue advisory opinions. Once the issue of the actual contracting party is resolved by the trier of fact, the issue of whether AGP lacked a CSLB license can be addressed.

It is noted that the opinion in Wright v Issak (2007) 149 Cal. App. 4th 1116 expressly shows that the contractor did not dispute that he was contracted to perform construction work requiring a license. Id. at 1120. There was no issue as to who the contracting party was. In this case, there is a dispute as to the identity of the contracting party.

3. RULING ON REQUEST FOR JUDICIAL NOTICE

Moving Parties' Request for Judicial Notice is GRANTED but not as to any hearsay or matters in dispute.

4. RULING ON EVIDENTIARY OBECTIONS:

A. Objections to the Supplemental Declaration of Jonathan Silver:

1. Sustained on lack of foundation and speculation.

2. Sustained on lack of foundation and speculation.

3. Sustained on lack of foundation and speculation.

4. Sustained on lack of foundation and speculation.

5. Sustained on lack of foundation and speculation, and hearsay.

6. Sustained on lack of foundation and speculation.

7. Overruled as to the Pearlman letter only. Otherwise sustained on lack of foundation and speculation, and hearsay.

8. Sustained on lack of foundation and speculation.

9. Sustained on lack of foundation and speculation.

10. Sustained on lack of foundation and speculation.

11. Sustained on lack of foundation and speculation.

B. Objections to the Declaration of Tristan Mackprang:

1. Sustained on lack of foundation, hearsay.

2. Sustained on lack of foundation, hearsay.

3. Sustained on lack of foundation, hearsay.

4. Sustained on lack of foundation, hearsay.

5. Sustained as hearsay.

6. Sustained on lack of foundation and speculation, hearsay.

C. Objection to the Declaration of Frank Zeigon:

The court is inclined to grant the objection to the entirety as to Mr. Zeigon's declaration because lack of relevant training and experience in workers' compensation insurance claims.

D. Objection to the Declaration of Nicole Pearlman:

1. Sustained, lack of foundation.

2. Sustained, lack of foundation.

3. Sustained, lack of foundation.

4. Sustained, lack of foundation.

5. Sustained, lack of foundation.

6. Overruled.

7. Overruled.

8. Overruled.

9. Overruled.

Case Number: LC106932    Hearing Date: April 27, 2021    Dept: T

A.G. PROPERTIES, INC.,

Plaintiff,

vs.

GREGORY M. LINSNER; NICOLE D. PEARLMAN; et. al.

Defendants.

CASE NO: LC106932

[TENTATIVE] ORDER RE:

MOTION FOR ISSUE AND EVIDENTIARY SANCTIONS CONCERNING A.G. PROPERTIES, INC.’S COURT-ORDERED RESPONSES TO REQUESTS FOR PRODUCTION SET TWO AND FORM INTERROGATORIES SET TWO; REQUEST FOR MONETARY SANCTIONS OF $4,997.50 AGAINST A.G. PROPERTIES, INC. AND COUNSELS

Dept. T

8:30 a.m.

April 27, 2021

[TENTATIVE] ORDER: The Motion for Issue and Evidentiary Sanctions is GRANTED IN PART AND DENIED IN PART.

The motion is GRANTED as to the issue/evidentiary sanctions so as to state: “It is deemed proven and established for the purposes of this action that AGP underreported its payroll to its workers’ compensation insurer during the period from 2016 to 2019; and AGP is prohibited from introducing evidence contradicting the afore-mentioned issue sanction.” It is expressly noted that the word “vastly” is stricken from the Proposed Order.

The motion is DENIED as to the issue/evidentiary sanction that is stated as: “It deemed proven and established for the purposes of this action that at all relevant times Plaintiff and Cross-Defendant A.G. Properties, Inc. (“AGP”) acted as a general contractor in furnishing labor, services, equipment, and materials to the Linzners.”

The Request for Monetary Sanctions is GRANTED in the sum of $4,997.50 pursuant to 2030.300(e), 2031.310(i), 2023.010, 2023.020, 2023.030(a), and 2023.040 against Plaintiff/Cross-Defendant A.G. Properties, Michael A. Lloyd, the Fowler Law Group, John J. Walker and Walker & Kirkpatrick, jointly and severally, payable forthwith to Client Trust Account of Coleman Frost LLP at its address of record.

1. INTRODUCTION

Defendants and Cross-Complainants Gregory Linzner and Nicole Pearlman (collectively “Defendants”) request issue, evidentiary and monetary sanctions against Plaintiff and Cross-Defendant A.G. Properties, Inc. (“AGP”) and/or its attorneys of record, Michael A. Lloyd and the Fowler Law Group and John J. Walker of Walker & Kirkpatrick. Defendants assert several violations of this Court’s August 12, 2020 discovery order regarding Request for Production Set 2 (“RFP”) nos. 1, 3, 5, 7, and 9 and Form Interrogatory Set 2 (“FI”) no. 17.1 as it relates to Request for Admission Set 2 (“RFA”) nos. 14-17.

2. DISCUSSION

Per the Stipulation and Order dated August 12, 2020 (“August Court Order”), the parties, through their current counsels, agreed to provide responses to RFP nos. 1, 3, 5, 7, and 9 (amongst others but not at issue here) in compliance with CCP §§2031.210, 2031.220, and 2031.230. (Mackprang Decl. ¿3, Exh. 1.) AGP provided its supplemental responses on September 15, 2020 (Mackprang Decl. ¿15, Exh. 10.) AGP’s responses to the RFPs at issue are shown to be an agreement to produce and makes references to a production of AGP’s W-2 forms issued to all employees. AGP’s response further asserts that a request was made to third-parties and further production would be forthcoming upon the third-parties’ response. With the opposition to the instant sanctions motion (served upon Defendants on April 14, 2021,) AGP then produced a declaration from Ariella Silver, AGP’s CFO, to attest that no cash payments were issued to AGP’s employees and payroll checks are maintained by Applied Underwriters (“AU.”) (Ariella Silver Decl. ¿¿8-11.) On April 21, 2021, AGP then produced “summaries” from AU, AGP’s payroll contractor, which contained a “weekly report of each of AGP’s employees’ name, hourly rate, weekly work hours, gross earnings, tax withholding and net income.” (AGP’s Proposed Joint Statement, ¿5.) However, it is noted that the RFPs at issue sought the “payroll checks and documents relating to cash payments” made to AGP’s employees. The RFPs did not seek AGP’s W-2 forms or summaries. Despite agreeing to produce on September 15, 2020, it is shown that AGP has not produced payroll checks and appears to be responding to some other RFP demand when producing W-2s or summaries thereof. Further, the declaration by Mrs. Silver is not in compliance with CCP §2031.230 which requires statements of an inability to comply to include a statement that a diligent search and reasonable inquiry has been made in an effort to locate the item demanded; and the reason the party is unable to comply (i.e.: never existed.) Mrs. Silver’s declaration only shows a partial compliance with the statute and fails to show any search was made and fails to identify where the documents may be found and whether they are in AGP’s control. In fact, Mrs. Silver’s declaration is in direct contradiction to AGP’s September 15, 2020 agreement to produce responsive documents. Lastly, AGP’s opposition fails to recognize that AGP is in control of AU and under the August Court Order, as well as CCP §2031.220, AGP was required to obtain/produce the responsive documents in AU’s possession. Based upon these facts, the Court finds that AGP has violated the August Court Order as related to the RFPs without substantial justification.

The August Court Order further required AGP to provide supplemental responses to FI no. 17.1 as related to RFA nos. 14-17 (among others but not at issue in this motion.) AGP’s response to the RFAs was to deny that they underreported their payroll to their workers’ compensation (“WC”) insurer. As such, the FI sought the facts to support AGP’s denial. The supplemental response was required to comply with CCP §2030.220. AGP provided its supplemental responses on September 15, 2020 (Mackprang Decl. ¿18, Exh. 11.) AGP response to subsection (b) of FI no. 17.1 was merely to re-assert the denial of the RFA. There were no facts identified in the response. However, in response to subsection (d), AGP cites to the documents produced in response to the RFPs at issue in the instant motion (i.e.: the W-2 forms reference in AGP’s response to the RFPs.) Further, attached to the opposition to the instant motion, AGP submits the declaration of Mrs. Silver to assert that AGP had WC insurance at all relevant times pertaining to this action. (Mrs. Silver Decl. ¿¿4-6.) However, the declaration of Mrs. Silver is not responsive to the FI/RFA. The fact that AGP maintained WC insurance does not address the RFA relating to “underreporting” of payroll to AGP’s WC insurer. The fact that AGP’s WC insurer issued a policy to AGP only supports the contention that AGP had WC insurance and does not speak to whether payroll was properly submitted to the WC insurer. It is further noted that Mrs. Silver’s declaration does not speak to whether AU is responsible for applying for AGP’s WC insurance wherein it is presumed AGP would report to the insurer its payroll to determine policy coverage. Based upon these facts, the Court finds that AGP has violated the August Court Order as related to the FI/RFA without substantial justification.

AGP’s opposition argument relying upon an October 8, 2020 Minute Order (“October Minute Order”) is unpersuasive in that AGP’s citations to the October Minute Order are taken out of context and misconstrues the issues resolved by the Court. AGP’s references to the October Minute Order presumes that AGP’s September 15, 2020 supplemental response was reviewed by the Court. However, it was not submitted to the Court and thus could not have been reviewed. The issue ruled upon by the Court at the September 24, 2020 hearing and subsequent October Minute Order was the issue of monetary sanctions against AGP’s former counsel, the Buchwalter Firm.

AGP argues that Defendants previously had knowledge of AGP’s lack of general contractor status and Defendants previously had knowledge of AGP’s proper reporting of payroll. However, Defendants’ alleged knowledge, or lack thereof, of these issues is of no consequence to the instant motion. Defendants’ alleged knowledge or even different sources to obtain admissible evidence is not a substitute for their right to discovery and/or right to seek admissible evidence from AGP.

AGP argues the inapplicability of Wright v Issak (2007) 149 Cal. App. 4h 1115. However, the applicability of the case is inconsequential to the instant motion, especially in light of the Court’s denial of Defendants’ request for an issue/evidentiary sanction deeming that AGP holds general contractor status in this action. As discussed below, the requested issue/evidentiary sanction of general contractor status is an overreach by Defendants.

The issue regarding the failure to provide a privilege log is not seen to be a violation of the August Court Order in that AGP was taking the stance that no documents were withheld under such a privilege.

Defendants argue that AGP added additional objections in its September 15, 2020 Supplemental Response that was not made in its original responses. The original response to the RFP and RFA shows that AGP objected on the grounds of both attorney client privilege and the work product doctrine. (Mackprang Decl. ¿11, Exh. 7: General Objections ¿¿C, D (Response to FI 17.1 & RFA, served January 17, 2020); Lloyd Decl. ¿14, Exh. F: General Objection ¿1 (Response to RFP, served January 17, 2020).) At issue is the fact that AGP’s September 15, 2020 response added a citation to Nacht & Lewis Architects Inc. v Sup. Ct. (1996) 47 Cal. App. 4th 214, 217. Although the case citation was not found in AGP’s responses, the case law does not deviate from the objection based upon attorney work product doctrine. There is no new objection asserted due to the citation to the case law. Because no new objection is asserted by AGP, this is not seen as a violation of the August Court Order.

3. CONCLUSION

With the above violations of the August Court Order, the Court finds that issue/evidentiary sanctions are in order. However, the proposed order submitted by Defendants is seen to be overreaching in that deeming AGP a general contractor herein would place Defendants in a better position than had AGP complied with the August Court Order. Defendants would merely have obtained facts that could have either been supportive or detrimental in their argument to show general contractor status. The paychecks alone would not be a dispositive fact as to general contractor status. The paychecks would have only potentially shown either underreporting to the WC insurer or proper reporting of payroll to the WC insurer. In that deeming AGP a general contractor an overreach, Defendants’ proposed order as deeming AGP a general contractor in these transactions is denied. For these same reasons, Defendants request to determine AGP “vastly” underreported payroll would also be an overreach. The adverb “vastly” would place Defendants in a position better than it would have been in had AGP complied with the August Court Order. The request that AGP underreported is all that Defendants would be entitled to. The “underreporting” cannot be qualified in Defendants’ favor. Thus, the adverb “vastly” is stricken from the Proposed Order.

For the above violations of the August Court Order without substantial justification, the Court finds that monetary sanctions are warranted against AGP and its Counsels of record on the grounds of discovery abuse. The request for $4,997.50 is reasonable in light of the amount of work put into these discovery issues since the August 12, 2020 Court Order.

IT IS SO ORDERED, ____________________ TO GIVE NOTICE.

Case Number: LC106932    Hearing Date: December 14, 2020    Dept: T

A.G. PROPERTIES, INC.,

Plaintiff,

vs.

GREGORY M. LINZNER; et. al.

Defendants.

CASE NO: LC106932

[TENTATIVE] ORDER RE:

MOTION FOR LEAVE TO FILE CROSS-COMPLAINT; RULING ON OBJECTIONS

Dept. T

8:30 a.m.

December 14, 2020

The motion by AG Properties and Silver to file cross-complaint against third party contractors for negligence, equitable indemnity, declaratory relief and contribution is denied. Alternatively, the court may grant the motion but could sever the cross-complaint and stay discovery and/or stay the cross-complaint. The court will hear argument on these issues.

DISCUSSION:

A defendant can cross-complain against a codefendant or third person not yet a party to the action only if the cause of action asserted “(1) arises out of the same transaction, occurrence, or series of transactions or occurrences [set forth in the complaint] … or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause [of action] brought against him.” CCP § 428.10(b). “Permission to file a permissive cross-complaint is solely within the trial court’s discretion.” Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864. Factors considered are judicial efficiency, fairness to the parties, the interests of justice, and delay in seeking court’s permission to file the cross-complaint. Id.

The court exercises its discretion to deny the motion because of the delay that will be caused in completing discovery and setting trial that such a ruling would entail, and because it would probably require the plaintiff to engage in/and or participate in extensive discovery and depositions which may not be necessary to prosecute and defend the complaint and cross-complaint by plaintiffs and existing cross-complaint by defendants. Alternatively, the court may grant the motion but could sever and stay discovery and/or stay the cross-complaint.

RULING ON OBJECTIONS:

Ruling on objections to the declarations of Bruce Rudman and Mitchell Cohen: Sustained on all grounds. The declarations are excluded from evidence.

To the extent that the Declaration of Tristan Mackprang makes improper opinions and hearsay statements, the court does not consider those matters in determining the motion.

To the extent that the Declaration of Nicole Pearlman renders expert and lay opinions, the court does not consider those matters in determining the motion.

Case Number: LC106932    Hearing Date: September 24, 2020    Dept: T

A.G.PROPERTIES, etc. Case No. LC106932

Plaintiff,

v.

[TENTATIVE] ORDER ON REQUEST

LINZNER, etc. FOR SANCTIONS RE THREE DISCOVERY

Defendants. MOTIONS

9/24/2020

8:30 A.M.

DEPT. T

[TENTATIVE] ORDER: The request for sanctions is granted in the amounts set forth below. Total sanctions awarded is $3,677 payable by plaintiff to client trust account of defense counsel within 30 days.

In reviewing the papers in support of and in opposition to the motions, the court finds that in terms of special interrogatories, the plaintiff acted without substantial justification in initially failing to give any substantive responses, and then later giving incomplete answers. It is clear that the filing of the motion is what was required to obtain compliance. The court is only required to determine what is reasonable and award sanctions on that basis. The court finds that the hourly rate of $395 is reasonable and that a total of 5 hours for the motion to compel answers to interrogatories (4 hours to prep, 1 hour for reply and 1 hour for appearance) is reasonable on for this motion. Sanctions are awarded against the plaintiff A.G. Properties in the sum of $395 x 5 + $61 = $2,036 pursuant to CCP section 2030.300, 2023.010, 2023.020, 2023.030 and 2023.040 payable by plaintiff to the client trust account of counsel for defendants within 30 days.

In reviewing the papers in support of and in opposition to the motion to compel request for production, plaintiff’s initial responses were merely objections and it is clear that there was not compliance until after the motion was filed. There were no substantial justification for the original objections and failure to produce, requiring this motion. The court awards sanctions. The court finds that the hourly rate of $395 is reasonable and that a total of 4 hours for the motion to compel production (3 hours to prep and 1 hour for reply) is reasonable on this motion. Sanctions are awarded against the plaintiff A.G. Properties in the sum of $395 x 4 + $61 = $1,641 pursuant to CCP section 2031.310, 2031.320(b), 2023.010, 2023.020, 2023.030(a), and 2023.050(a), payable by plaintiff to the client trust account of counsel for defendants within 30 days.

On Form Int. 17.1, the court does not award sanctions as there was a good faith effort at compliance before the motion was filed.

CLERK OF THE COURT TO GIVE NOTICE. IT IS SO ORDERED.

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