Pending - Other Pending
Personal Injury - Other Personal Injury
MARK H. EPSTEIN
LEEVERS GARRETT D.
NETWORK DEPOSITION SERVICES INC.
FRIEDMAN MICHAEL ELLIOT
FRIEDMAN STEVEN RICHARD
FRIEDMAN STEVEN R.
FISHER HOWARD S. LAW OFFICES OF
BEHLE JR ROGER N
5/4/2018: Legacy Document - LEGACY DOCUMENT TYPE: NOTICE OF MOTION
11/19/2018: Complaint - THIRD AMENDED COMPLAINT (AMENDED)
6/24/2019: Notice of Ruling
6/26/2019: Proof of Service (not Summons and Complaint)
8/5/2019: Status Report
8/6/2019: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))
8/7/2019: Notice - NOTICE OF CHANGE IN HEARING DATE FOR MOTION BY DEFENDANT NETWORK DEPOSITION SERVICES, INC.
8/7/2019: Notice - NOTICE OF CHANGE IN MOTION HEARING DATE
8/16/2019: Motion for Order - MOTION FOR ORDER DEFENDANTS URIEL AND NURIEL YOSSEFIS NTC OF MOTION -MOTION FOR A STAY TO INV DISSO PROCS , APPOINT APPRAISERS TO FIX THE VALUE, AND ISSUE A DECREE PER CORP CODE
8/27/2019: Request for Dismissal - REQUEST FOR DISMISSAL WITHOUT PREJUDICE AS TO THE FOURTH CAUSE OF ACTION FOR INVOLUNTARY DISSOLUTION - ONLY
9/9/2019: Status Report
9/11/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO TH...)
10/16/2019: Opposition - OPPOSITION DEFS-XCOMPL OPPOSITION TO PL - X-DEFS MOTION TO STRIKE CROSS-COMPLAINT; DECL OF HSF
10/16/2019: Opposition - DEFENDANT'S/CROSS-COMPLAINANTS NETWORK DEPOSITION SERVICES', URIEL YOSSEFI AND NURIEL YOSSEFI'S OPPOSITION TO PLAINTIFF/CROSS-DEFENDANTS DEMURRER
10/21/2019: Reply - REPLY REPLY IN SUPPORT OF MOTION TO STRIKE CROSS-COMPLAINT
10/21/2019: Reply - REPLY REPLY IN SUPPORT OF DEMURRER TO CROSS-COMPLAINT
10/23/2019: Status Report
10/29/2019: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10))
Hearing06/14/2021 at 09:30 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Jury Trial[+] Read More [-] Read Less
Hearing06/07/2021 at 09:00 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Final Status Conference[+] Read More [-] Read Less
Hearing03/03/2021 at 08:30 AM in Department M at 1725 Main Street, Santa Monica, CA 90401; Hearing on Motion for Preliminary Injunction[+] Read More [-] Read Less
DocketDeclaration (DECLARATION OF URIEL YOSSEFI); Filed by NETWORK DEPOSITION SERVICES, INC. (Defendant)[+] Read More [-] Read Less
DocketDeclaration (DECLARATION OF NURIEL YOSSEFI ON BEHALF OF HIMSELF AND ON BEHALF OF NETWORK DEPOSITION SERVICES, INC.); Filed by NETWORK DEPOSITION SERVICES, INC. (Defendant)[+] Read More [-] Read Less
Docketat 08:30 AM in Department M; Hearing on Ex Parte Application (FOR (A) CLARIFICATION, OR IN THE ALTERNATIVE, RECONSIDERATION OF PARAGRAPH 7 THE COURT?S DECEMBER 9, 2020 ORDER AND (B) FOR AN ORDER) - Held[+] Read More [-] Read Less
DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Garrett D. Leevers (Plaintiff)[+] Read More [-] Read Less
DocketMinute Order ( (Hearing on Ex Parte Application FOR (A) CLARIFICATION, OR IN ...)); Filed by Clerk[+] Read More [-] Read Less
DocketDEFENDANT NETWORK DEPOSITION SERVICES, INC.?S EX PARTE APPLICATION FOR (A) CLARIFICATION, OR IN THE ALTERNATIVE, RECONSIDERATION OF PARAGRAPH 7 THE COURT?S DECEMBER 9, 2020 ORDER AND (B) FOR AN ORDER; Filed by NETWORK DEPOSITION SERVICES, INC. (Defendant)[+] Read More [-] Read Less
DocketDECLARATION OF JORDAN LIEBMAN IN SUPPORT OF DEFENDANTS? EX PARTE APPLICATION FOR (A) CLARIFICATION, OR IN THE ALTERNATIVE, RECONSIDERATION OF PARAGRAPH 7 THE COURT?S DECEMBER 9, 2020 ORDER AND (B) FOR; Filed by NETWORK DEPOSITION SERVICES, INC. (Defendant)[+] Read More [-] Read Less
DocketSubstitution of Attorney; Filed by Attorney for Plaintiff[+] Read More [-] Read Less
DocketStatement-Case Management; Filed by Attorney for Plaintiff[+] Read More [-] Read Less
DocketCase Management Statement; Filed by GARRETT D. LEEVERS (Plaintiff)[+] Read More [-] Read Less
DocketProof-Service/Summons; Filed by Attorney for Plaintiff[+] Read More [-] Read Less
DocketProof-Service/Summons; Filed by GARRETT D. LEEVERS (Plaintiff)[+] Read More [-] Read Less
DocketComplaint; Filed by GARRETT D. LEEVERS (Plaintiff)[+] Read More [-] Read Less
DocketSummons; Filed by Plaintiff[+] Read More [-] Read Less
DocketSummons Filed; Filed by Attorney for Plaintiff[+] Read More [-] Read Less
DocketComplaint Filed[+] Read More [-] Read Less
DocketCivil Case Cover Sheet; Filed by Clerk[+] Read More [-] Read Less
Case Number: ****8570 Hearing Date: May 20, 2021 Dept: M
CASE NAME: Garrett D. Leevers v. Network Deposition Services, Inc.
CASE NO.: ****8570
MOTION: Defendants Motion for an Order Permitting Network Deposition Services, Inc.’s Directors to Evaluate, Vote On and Approve Potential Increases to Executive Salaries
HEARING DATE: 05/20/2021
“In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.” (Code Civ. Proc., ; 533)
“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., ; 1008(a).)
Defendants Network Deposition Services Inc. (“NDS”), Nuriel Yossefi and Uriel Yossefi (collectively “Defendants”) request judicial notice of the Court’s preliminary injunction order. The request for judicial notice is GRANTED. On March 11, 2021, the Court entered its order granting Plaintiff’s motion for a preliminary injunction.
Defendants request an order permitting Defendants to request, and for the NDS Board of Directors to evaluate, vote on, and approve any salary determined by the Board of Directors to be necessary to retain Defendants as executive employees of NDS. (See 04/15/2021 Notice of Motion.) Plaintiff argues that the notice of motion is defective. Here, the Court agrees that Defendants’ notice of motion is defective. A party cannot simply state in their notice of motion that they want something without providing the Court a legal basis as to why they are entitled to that thing. The Court of Appeal has explained:
A basic principle of motion practice is that the moving party must specify for the court and the opposing party the grounds upon which that party seeks relief. Code of Civil Procedure section 1010 requires that a notice of motion must state “the grounds upon which it will be made.” California Rules of Court, rule 311 requires a notice of motion to state in its opening paragraph “the nature of the order being sought and the grounds for issuance of the order.” As a general rule, the trial court may consider only the grounds stated in the notice of motion. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545, 235 Cal.Rptr. 106; Silva v. Holland (1888) 74 Cal. 530, 531, 16 P. 385.)”
(Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.) “An omission in the notice may be overlooked if the supporting papers make clear the grounds for the relief sought. (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 807–808, 210 Cal.Rptr. 599; 366–386 Geary St., L.P. v. Superior Court (1990) 219 Cal.App.3d 1186, 1200, 268 Cal.Rptr. 678.) The purpose of these requirements is to cause the moving party to “sufficiently define the issues for the information and attention of the adverse party and the court.” (Hernandez v. National Dairy Products (1954) 126 Cal.App.2d 490, 493, 272 P.2d 799.) (Ibid. [double emphasis added].) Here, Defendants’ supporting papers do not clarify the legal grounds on which Defendants seeks relief from the preliminary injunction. There is no legal argument and no law cited in the supporting memorandum. As a result, Defendants have failed to show why the Court should granted their motion.
Plaintiff also argues that this motion is in essence a motion for reconsideration of the Courts preliminary injunction ruling. To the extent that Defendants seek reconsideration, this motion does not comply with Code of Civil Procedure section 1008. This motion was brought more than 10 days after the Court’s ruling on the preliminary injunction as well as more than 10 days after the Court’s entry of the preliminary injunction. The motion also does not contain an affidavit under section 1008. Finally, Defendants makes the same arguments as to the justification for a salary increase that the Court has already rejected.
2. Motion for Leave to Intervene
For mandatory intervention, Code of Civil Procedure section 387(d) provides that a court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied:
(A) A provision of law confers an unconditional right to intervene.
(B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.
(Code Civ. Proc., ; 387(d)(1).)
Section 387(d)(2) allows permissive intervention “upon timely application, [to] permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.” (Code Civ. Proc., ; 387(d)(2).) Here, Thomas Leevers requests leave to intervene pursuant to Section 387(d)(2).
Whether the petitioner has an interest in the matter in litigation is a question of fact that must be determined by the court before leave to file is granted. (Muller v. Robinson (1959) 174 Cal.App.2d 511, 515 (Muller); In re Yokohama Special Bank (1948) 86 Cal.App.2d 545.) The burden rests on the one seeking to intervene to show that this is a proper case for intervention. (Muller, supra, 174 Cal.App.2d at 515.)
Proposed Intervenor Thomas Leevers argues that it is entitled to intervention on the ground that Thomas' fiduciary duty and claims as a director on behalf and in the best interests of Network Deposition Services, Inc. ("NDS") are not being adequately represented by the existing parties in this action, and that there is a substantial probability such interests will be directly impacted by any judgment rendered in this matter. Leevers, however, is not a shareholder of NDS and does not have an interest in the litigation as a member of the board. To the extent that Leevers is concerned about his own personal liability, his votes on board matters will make his positions clear. Otherwise, the request appears to be a thinly veiled attempt to disqualify defendant’s counsel on the eve of trial.
The Court further concludes that Leevers has failed to adequately demonstrate that his interest is "of such a direct and immediate nature that . . . [he] will either gain or lose by the direct legal operation and effect of the judgment." (City & County of San Francisco v. State of Cal., (2005) 128 Cal.App.4th 1030, 1037. "A person has a direct interest justifying intervention in litigation where the judgment in the action of itself adds to or detracts from his legal rights without reference to rights and duties not involved in the litigation." (Continental Vinyl Products v. Mead Corp., (1972) 27 Cal.App.3d 543, 549.) "An interest is consequential and thus insufficient for intervention when the action in which intervention is sought does not directly affect it although the results of the action may indirectly benefit or harm its owner." (Id. at p. 550.) Leevers has failed to establish that he has a sufficient interest to intervene under under Section 387(d)(2).
The request is also untimely. The Court has no intention of continuing the trial date in this matter based upon the parties’ stipulation. The matter is almost four years old, and any trial continuance will push the matter into mid to late 2022.
For these reasons, the Court concludes that there is not a substantial probability that Thomas Leevers’ interests will be affected by the judgment. As such, the motion is denied.
Case Number: ****8570 Hearing Date: November 03, 2020 Dept: M
CASE NAME: Garrett D. Leevers v. Network Deposition Services, Inc.
CASE NO. ****8570
MOTION: Plaintiff and Cross-Defendants’ Demurrer to First Amended Cross-Complaint with Motion to Strike
On November 18, 2019 Network Deposition Services, Inc., Uriel Yossefi and Nuriel Yossefi (“Defendants and Cross-Complainants”) filed their first amended cross-complaint against Garrett D. Leevers and LitiCourt Corp and Roes 1 through 50 (“Cross-Defendants”). The first amended cross-complaint (FACC) alleges ten causes of action against Garrett D. Leevers and LitiCourt Corp for: (1) breach of oral contract; (2) conversion; (3) negligence; (4) intentional interference with prospective economic relationship; (5) negligent interference with contractual relationship; (6) breach of fiduciary duty; (7) extortion; (8) misappropriation of trade secrets; (9) trade libel; and (10) unfair business practices
On September 4, 2020, Cross-Defendants filed a demurrer with a motion to strike. On October 21, 2020, Cross-Complaints filed an opposition to the motion to strike but did not file an opposition to the demurrer. On October 27, 2020, Cross-Defendants filed a notice of a non-opposition to the demurrer as well as a reply in support of the motion to strike.
“Before filing a demurrer . . . the demurring party shall meet and confer in person or by telephone with the party who filed the pleading . . . for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., ; 430.41.)
A demurrer for sufficiency tests whether the complaint alleges facts sufficient to constitute a cause of action. (CCP ; 430.10(e); Young v. Gannon (2002) 97 Cal.App.4th 209, 220. The court “may consider all material facts pleaded in the complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of fact or law. (Id. [citing Moore v. Conliffe (1994) 7 Cal.4th 634, 638; Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.)) The court treats all facts alleged in the complaint to be true. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 732.) The court can also “consider the facts appearing in exhibits attached to the complaint.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733 [citing Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1627].)
When considering demurrers, courts “are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733 [citing Rogoff v. Grabowski (1988) 200 Cal.App.3d 624, 628].)
A demurrer on a complaint or cross-complaint may be filed within 30 days of service of the complaint or cross-complaint. (CCP 430.40(a).) An untimely demurrer may be considered by the court in its discretion. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.)
Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (See CCP ;; 435, 436 & 437.) A motion to strike must be filed within the time allowed to respond (e.g., 30 days after service of the complaint or cross-complaint) unless extended by court order. Where there are grounds for a demurrer and a motion to strike, they must be filed together and noticed for hearing at the same time. (CCP ; 435(b)(3) and CRC Rule 329.) A motion to strike can be made to strike irrelevant, false or improper matter inserted in any pleading or to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of the court. (CCP ; 436.) Allegations barred by the statute of limitations are properly subject to a motion to strike.
A. Meet and Confer
The Court finds that the parties satisfied the meet and confer requirements. (See generally Friedman Decl.)
The demurrer is timely. Cross-Defendants note in their declaration that Cross-Complainants extended Cross-Defendants time to file a demurrer to the FACC.
Cross-Defendants demur to all of the causes of action in the complaint. Cross-Defendants demur to the fourth, sixth and tenth causes of action because Cross-Complainants added these causes of action without leave of the court. The Court addresses the sixth and tenth causes of action in the motion to strike below.
Cross-Defendants also argue that the third cause of action as to the Yossefis should be sustained because no cause of action is stated by the Yossefis. Finally, Cross-Defendants demurrer to the fourth, fifth, seventh, ninth and tenth causes of action for failure to state facts sufficient to constitute a legally recognized cause of action.
COA 3: Negligence
Cross-Defendants argue that Cross-Complainants have still failed to state sufficient facts to state a negligence cause of action. The Court previously sustained the demurrer to this cause of action because Cross-Complainants had not alleged any facts to show that Cross-Defendants owed a duty of care to the Youssefi individual Cross-Complainants. Cross-Complainants have failed to file an opposition to the demurrer.
The Court finds that Cross-Complainants have failed to allege facts that show that Cross-Defendant Leevers owed a duty of care to Cross-Complainant Uriel and Nuriel Yossefi. Therefore, the demurrer on the third cause of action is sustained as to the Yossefi Cross-Complainants. Since there is no opposition to the demurrer, it is sustained without leave to amend.
COA 4 & 5: Interference Causes of Action
The fourth cause of action is labeled as intentional interference with prospective economic relationship. The fifth cause of action is labeled as negligent interference with prospective economic relationship.
Cross-Defendants first argue that the court did not grant leave to assert an intentional interference with prospective economic relationship. Comparing the presently alleged fourth cause of action with the previous fourth cause of action, the court finds that Cross-Complainants did not allege a new cause of action but merely changed the label of the cause of action and added allegations to support intentional interference with prospective economic relationship. The Court finds that Cross-Complainants have remedied the defect identified by the Court in its prior order as to the fourth cause of action.
However, the Court finds that Cross-Complainants did change their fifth cause of action. Previously, Cross-Complainants’ fifth cause of action was for intentional interference with contractual relations. Now, Cross-Complainants have changed their fifth cause of action to negligent interference with prospective economic relationship. The Court did not grant leave to change causes of action. The Court strikes this cause of action from the amended cross-complaint.
COA 7: Extortion
The Court previously sustained the demurrer to the extortion cause of action with leave to amend. The Court previously found that Cross-Complainants had not alleged facts that Cross-Defendants threatened criminal or civil prosecution. Cross-Defendants argue that this defect has not been cured. The Court agrees. Cross-Defendants have failed to allege facts that show that Cross-Defendants threatened criminal or civil prosecution. Therefore, the Court sustains the demurrer without leave to amend.
COA 9: Trade Libel
The Court previously sustained the demurrer to the trade libel cause of action with leave to amend. The trade libel claim was originally the tenth and last cause of action in the cross-complaint. The Court finds that Cross-Defendants have alleged sufficient facts to state a cause of action for trade libel. Therefore, the demurrer is overruled as to the ninth cause of action.
Motion to Strike
A. New causes of action added after the demurrer without first obtaining leave to amend
Cross-Defendants noticed two items in their notice of motion for motion to strike. Cross-Defendants seek to strike paragraph 100. Paragraph 100 is within the tenth cause of action. As to Item 2, Cross-Defendants seek to strike the fourth, sixth, and tenth causes of action as well as the associated prayers of relief in paragraphs 9, 10 and 15.
The motion to strike item 2 is granted in part and denied in part.
Here, Cross-Complainants added a new cause of action for breach of fiduciary duty (6th cause of action) and a new cause of action for unfair business practices (10th cause of action). The Court previously sustained without leave to amend the 6th cause of action for disgorgement and the 10th cause of action for injunctive relief. Plaintiffs or Cross-Complainants “may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. (See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015, 84 Cal.Rptr.3d 642 [acknowledging rule but finding it inapplicable where new cause of action “directly responds” to trial court's reason for sustaining the demurrer].)” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)
Cross-Complainants argue that the new causes of action respond directly to the Court’s reasoning in the first demurrer and thus come within the exception. However, these causes of action are not within the scope of the order because the Court did not grant leave to amend the sixth and tenth causes of action in the original cross-complaint because they were not causes of action. Despite this, Cross-Complainants added these two causes of action. Since the Court did not grant leave to amend new causes of action when ruling on the prior demurrer, the Court strikes the newly added causes of action in the cross-complaint. The motion to strike item 2 is granted as to all of the requested prayers of relief. The court did not grant leave to amend the prayer of relief to the fourth cause of action. The motion to strike item 2 is denied as to the fourth cause of action only. Since the motion to strike item 1 is related to the tenth cause of action, the motion to strike item 1 is MOOT.
Get Deeper Insights on Court Cases