ARINA BUILDERS VS 1999 SYCAMORE LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.

Tentative Rulings

Case Number: *******0039 Hearing Date: November 30, 2022 Dept: 54

Hearing Date: November 30, 2022

Department 54, Judge Maurice A. Leiter

Motion Compel Arbitration

Moving Party: Defendant 1999 Sycamore LLC

Responding Party: Plaintiff Arina Builders

T/R: DEFENDANT’S MOTION TO COMPEL ARBITRATION IS DENIED.

DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

Plaintiff filed this action on August 7, 2020. Plaintiff alleges Defendants hired Plaintiff to perform construction on the property; Defendant breached their contract and defrauded Plaintiff.

ANALYSIS

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate a controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists….” (CCP 1281.2.) The right to compel arbitration exists unless the court finds that the right has been waived by a party’s conduct, other grounds exist for revocation of the agreement, or where a pending court action arising out of the same transaction creates the possibility of conflicting rulings on a common issue of law or fact. (CCP 1281.2(a)-(c).) “The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.)

A. Existence of Arbitration Agreement

Defendant moves to compel arbitration based on the arbitration agreement in the five agreements titled “Contract Between Owner and Contractor,” executed by the parties between May 16, 2016 and December 20, 2017. (Decl. Snyder, Exhs. A-E.) The agreements provide,

SECTION 15. ARBITRATION. Any controversy or claim arising out of or relating to this Contract or its alleged breach, which can not be resolved by mutual agreement, shall be settled by arbitration in accordance with JAMS Rules in effect on the date of the Contract, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. Owner and Contractor agree that, should Contractor be potentially or actually a party to a lawsuit or arbitration arising out of or connected to this Contract, Owner shall appear in, and be bound by the decision in, that lawsuit or arbitration. The prevailing party in any action or proceeding to enforce this Contract shall recover its reasonable attorney's fees and costs (including expert witnesses) in that action or proceeding.

(Id.) This action arises from the owner-contractor agreements and their alleged breaches. Defendant has met its burden to establish the existence of an agreement to arbitrate. Defendant represents that the non-signatory Defendants have agreed to arbitrate. The burden shifts to Plaintiff to establish any defenses to enforcement.

B. Enforceability of Agreement

Plaintiff asserts that Defendant has waived its right to arbitration.

“In determining waiver, a court can consider (1) whether the party's actions are inconsistent with the right to arbitrate; (2) whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place; and (6) whether the delay affected, misled, or prejudiced” the opposing party.” (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1198, internal quotations omitted.) “Answering a complaint and participating in litigation, on their own, do not waive the right to arbitrate.” (Gloster v. Sonic Automotive, Inc. (2014) 226 Cal.App.4th 438, 449.) As arbitration is a favored method of dispute resolution, “waivers are not to be lightly inferred and the party seeking to establish a waiver bears a heavy burden of proof.” (Id. at 447.)

Plaintiff contends that Defendants have waived their right to arbitrate because they delayed in seeking arbitration and the litigation machinery has been invoked. The Court agrees. As noted, the case was filed in August 2020. Defendants waited more than two years – to October 2022 -- to bring this motion, Defendants did not seek arbitration in their answers or case management statements; Defendant 1999 Sycamore filed a cross-complaint against Plaintiff in October 2020. The parties have engaged in extensive litigation. There have been three case management conferences; Defendants opposed six discovery motions brought by Plaintiff; Defendants brought two motions to quash, Defendants participated in an informal discovery conference; and Defendants have responded to or objected to 40 sets of written discovery. Trial had been set for August 2022. In May 2022 the parties stipulated to continue the trial; it is now set for January 9, 2023.

In opposition, Defendant asserts that the delay in bringing this motion was due to continued efforts to settle. Defendant also argues that prejudice is not a factor in determining waiver under the FAA, citing to Morgan v. Sundance, 142 S. Ct. 1708 (2022). Under the FAA, it is the moving party’s conduct that matters. (Id. at 1714.) The Court has considered the St. Agnes Medical Center factors set forth above. Defendants’ conduct has established waiver.

Defendant’s motion to compel arbitration is DENIED.

Case Number: *******0039 Hearing Date: November 14, 2022 Dept: 54

Hearing Date: November 14, 2022

Department 54, Judge Maurice A. Leiter

(2) Motions to Compel Further Responses to Discovery

Moving Party: Plaintiff Arina Builders

Responding Party: Defendant Robert Haro

T/R: PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS IS GRANTED.

PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES IS DENIED.

PLAINTIFF’S REQUESTS FOR SANCTIONS ARE DENIED.

DEFENDANT IS ORDERED TO SERVE FURTHER RESPONSE TO REQUESTS FOR PRODUCTION OF DOCUMENTS WITHIN 15 DAYS OF NOTICE OF RULING.

PLAINTIFF TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that an objection to an interrogatory is without merit or too general. (CCP 2030.300(a)(3).) The responding party has the burden of justifying the objections to the form interrogatories (“FIs”) and special interrogatories (“SIs”). (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-221.)

The moving party on a motion to compel further responses to requests for production of documents (“RPDs”) must submit “specific facts showing good cause justifying the discovery sought by the inspection demand.” (CCP 2031.310(b)(1).) If the moving party has shown good cause for the RPDs, the burden is on the objecting party to justify the objections. (Kirkland v. Sup.Ct (2002) 95 Cal. App.4th 92, 98.)

Plaintiff moves to compel further response to RPDs, set one, and FIs, set one, from Defendant Haro. Defendant served supplemental responses to RPDs on September 14, 2022 and FIs on September 12, 2022.

Plaintiff asserts that Defendant’s responses are unverified, evasive, and incomplete. In response to the RPDs, Defendant refers generally to “all documents produced in response to related case of JE Group v. CSM Sycamore, Case No. 20STCV48660.” This is not a code-compliant response. Defendant must identify the documents that are responsive to each request. Further response is required.

Plaintiff’s motion to compel further responses to RPDs is GRANTED. Plaintiff requests $3,024.00 in attorney’s fees and costs in the motion. Plaintiff’s counsel, however, declares that only $511.00 in fees have been incurred to bring this motion. (Decl. Samofalova 11.) Plaintiff has provided insufficient notice of sanctions. The request for sanctions is DENIED.

In response to FIs, Defendant appears to have provided as much information as Defendant has in his possession. Plaintiff asserts that further responses are necessary because Defendant does not respond to each subpart of certain questions, such as the address of every school Defendant has attended. The Court will not order further responses because Defendant has not answered every subpart to inconsequential interrogatories. Defendant has provided substantive responses to each interrogatory. Further response is not necessary.

Plaintiff’s motion to compel further responses to FIs is DENIED.

Case Number: *******0039 Hearing Date: October 26, 2022 Dept: 54

Hearing Date: October 26, 2022

Department 54, Judge Maurice A. Leiter

(2) Motions to Compel Further Responses to Discovery

Moving Party: Plaintiff Arina Builders

Responding Party: Defendant Robert Haro

T/R: PLAINTIFF’S MOTIONS ARE GRANTED IN PART AND DENIED IN PART. THE REQUEST FOR SANCTIONS IS DENIED.

PLAINTIFF TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that an objection to an interrogatory is without merit or too general. (CCP 2030.300(a)(3).) The responding party has the burden of justifying the objections to the form interrogatories (“FIs”) and special interrogatories (“SIs”). (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-221.)

On receipt of a response to requests for admission (“RFAs”) the propounding party may move for an order compelling a further response if the propounding party deems that an objection to an RFA is without merit or too general. (CCP 2033.290(a)(2).)

Plaintiff moves to compel further response to RFAs, set two, and FIs, set two, no. 17.1, from Defendant Haro. Defendant served objections to the RFAs and the FI on March 29, 2022. After much back and forth over email, the parties attended an informal discovery conference. Plaintiff asserts Defendant agreed to serve further responses by September 12, 2022. Plaintiff represents that it did not receive further responses.

Defendant contends that the RFAs are compound. Defendant also argues that many improperly request that Defendant state the genuineness of documents. In reply, Plaintiff asserts that these objections are boilerplate and argues that Defendant already agreed to provide further responses.

The RFAs that ask only for Defendant to admit that an attached document is a true and correct copy of a particular document are appropriate and must be answered. The remaining RFAs and requests are compound and vague. They ask Defendant to admit or deny broad, general statements, and they contain more than one statement of fact. That Defendant “agreed” to provide further response does not change the analysis of this motion. The Court will not compel responses to improper discovery requests.

The Court declines to award sanctions.

Plaintiff’s motions are GRANTED IN PART AND DENIED IN PART.

Case Number: *******0039 Hearing Date: October 20, 2022 Dept: 54

Hearing Date: October 20, 2022

Department 54, Judge Maurice A. Leiter

Motion to Quash Subpoenas for Financial Records

Moving Party: Cross-Complainant/Defendant 1999 Sycamore, LLC, and Defendants Robert Haro, R. Douglas Spiro, Jr., Cole Harris, CSM Sycamore, LLC, and Capital Stone Management, Inc.

Responding Party: Plaintiff Arina Builders

T/R: DEFENDANTS’ MOTION TO QUASH IS DENIED.

DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (CCP 1987.1(a).) A motion to quash subpoena must be accompanied by a separate statement. (CRC Rule 3.1345(a)(5).)

Defendants move to quash 10 subpoenas for business and financial records. Defendants assert the subpoenas are overbroad and have no bearing on this simple case for mechanic’s lien. Defendants contend that Plaintiff is not entitled to Defendants’ private financial and business information.

In opposition, Plaintiff states that the requested documents are relevant to Plaintiff’s fraud claims. Plaintiff asserts that Defendants produced altered checks in discovery. Plaintiff alleges Defendants mispresented that Defendants would pay Plaintiff as Plaintiff continued work on the property and used forged documents showing payments to Plaintiff to obtain financing.

These subpoenas seek relevant, discoverable information. Any privacy interests are outweighed by the need for discovery.

Defendants’ motion to quash is DENIED.

Case Number: *******0039 Hearing Date: February 15, 2022 Dept: 54

Hearing Date: February 15, 2022

Department 54, Judge Maurice A. Leiter

Motion for Order Setting OSC Re: Contempt

Moving Party: Plaintiff Arina Builders

Responding Party: Defendants 1999 Sycamore LLC, et al.

T/R: PLAINTIFF’S MOTION IS DENIED.

PLAINTIFF TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing.

The Court considers the moving papers, opposition and reply.

Plaintiff moves for an order setting an OSC re: contempt under CCP 1211 et seq. and for monetary sanctions on the grounds that Defendants failed to comply with the Court’s discovery order. On November 15, 2021, the Court granted Plaintiff’s motion to compel responses to discovery and ordered Defendants pay monetary sanctions and produce discovery responses by December 3, 2021. Plaintiff asserts that as of the filing of this motion, Defendants have not produced responses or paid monetary sanctions. In opposition, Defendants assert that it is counsel’s error that responses have not been served and counsel is working to have responses served by the hearing date on this motion.

As Defendants represent responses will be served, the Court declines to set an OSC re: contempt or to award additional sanctions. If Defendants fail to serve responses by the hearing date, the Court may award additional sanctions.

The motion is DENIED without prejudice.

Case Number: *******0039 Hearing Date: January 26, 2022 Dept: 54

Hearing Date: January 26, 2022

Department 54, Judge Maurice A. Leiter

Motion to Enforce Subpoena for Business Records

Moving Party: Plaintiff Arina Builders

Responding Party: Third-party J.E. Group, LLC

T/R: PLAINTIFF’S MOTION TO ENFORCE SUBPOENA IS GRANTED.

J.E. GROUP IS ORDERED TO COMPLY WITH THE SUBPOENA WITHIN 20 DAYS OF NOTICE OF RULING.

PLAINTIFF TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing.

The Court considers the moving papers, opposition and reply.

CCP 1987.1 provides, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.”

Plaintiff moves to enforce a subpoena served on third-party J.E. Group, LLC on August 30, 2021. The subpoena seeks information relating to property relevant to this action. Plaintiff alleges Defendants hired Plaintiff to perform construction on the property. Plaintiff alleges Defendants, including 1999 Sycamore LLC, breached their contract and defrauded Plaintiff. The subpoenas request documents between Defendants and J.E. concerning the property and/or Plaintiff.

In response to the subpoena, J.E. provided various objections and/or statements that responsive documents do not exist. Plaintiff contends that J.E. has not served any responsive documents. Plaintiff says the information sought is relevant because J.E. is the majority member of Defendant 1999 Sycamore LLC. In opposition, J.E. asserts the requests are overbroad and the information sought could be obtained from Defendants.

The requests are not overbroad. They seek documents relating to the subject property and to Plaintiff. They are sufficiently narrow in time in scope. J.E. must comply with the subpoena to the extent it has responsive documents in its possession. If responsive documents do not exist, J.E. may so state.

The motion to enforce subpoena is GRANTED. The Court declines to award sanctions. (CCP 1987.2(a).)

b'

Case Number: *******0039 Hearing Date: November 15, 2021 Dept: 54

Hearing Date: November 15, 2021

Department 54, Judge Maurice A. Leiter

Motions to Compel Responses to Discovery and Deem Requests for Admissions Admitted

Moving Party: Plaintiff Arina Builders

Responding Party: Defendants 1999 Sycamore LLC, Robert Haro, R. Douglas Spiro, jr., Cole Harris, CSM Sycamore LLC, and Capital Stone Management, Inc.

T/R: PLAINTIFF’S MOTION TO DEEM RFAS ADMITTED IS GRANTED.

PLAINTIFF’S REQUESTS FOR ADMISSIONS ARE DEEMED ADMITTED AGAINST DEFENDANTS.

PLAINTIFF’S MOTIONS TO COMPEL RESPONSES TO DISCOVERY ARE GRANTED.

DEFENDANTS TO SERVE VERIFIED RESPONSES TO DISCOVERY, WITHOUT OBJECTION, WITHIN 15 DAYS OF NOTICE OF RULING.

PLAINTIFF’S REQUESTS FOR SANCTIONS ARE GRANTED IN THE REDUCED AMOINT OF $2,605.50 TOTAL.

PLAINTIFF TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing.

The Court considers the moving papers, opposition and reply.

“If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it. . . [t]he party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product. . . . The party making the demand may move for an order compelling response to the demand.” (CCP ; 2031.300(a)–(b).) When timely responses to interrogatories are not received, “[t]he party propounding the interrogatories may move for an order compelling response to the interrogatories.” (CCP ; 2030.290(b).) If a party fails to provide a timely response to a request for admission (“RFAs”), the party waives any objection to the requests. (C.C.P. ; 2033.280(a).) Moreover, “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction….” (C.C.P. ; 2033.280(b).)

Plaintiff moves to compel responses to FIs, RPDs and to deem RFAs admitted against Defendants. Plaintiff served this discovery on August 19, 2021. Responses were due on September 23, 2021. In opposition, Defendants ask the Court to deny the motions because responses will be served before the hearing. Defendants do not provide a date certain for when responses will be served, nor do they explain why responses were not served by September 23, 2021. As responses have yet to be served, the motions are GRANTED.

Plaintiff seeks sanctions in the amount of $5,475.00 for the motion to compel and $2,545.50 for the motion to deem RFAs admitted. The Court finds these fees excessive and will allow a total of $2,605.50 in sanctions for both motions.