GT MADISON REALTY, LLC, A DELAWARE LIMITED LIABILITY COMPANY, ET AL. VS MADISON REALTY EQUITIES, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.
Case Summary
Case Details
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Case Number:
*******1056
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Filing Date:
12/07/2020
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Case Status:
Pending - Other Pending
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Case Type:
Personal Injury - Other Personal Injury
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Courthouse:
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County, State:
Los Angeles, California
Judge Details
Presiding Judges
DAVID A. ROSEN
CURTIS A. KIN
COLIN P. LEIS
Party Details
Plaintiffs and Cross Defendants
GTM U.S. SENIOR HOUSING REIT L.P. A DELAWARE LIMITED PARTNERSHIP
GRANDTAG BUSINESS CONSULTANTS LTD. A HONG KONG-BASED COMPANY
GT MADISON REALTY LLC A DELAWARE LIMITED LIABILITY COMPANY
GTM U.S. SENIOR HOUSING REIT INC. A DELAWARE CORPORATION
LEUNG AN INDIVIDUAL JAMESON
LEUNG AN INDIVIDUAL RENE
Defendants
MCCARTHY LUKE
MADISON REALTY EQUITIES LLC A CALIFORNIA LIMITED LIABILITY COMPANY
D.R.I.V.E. MANAGEMENT INC. A SOUTH DAKOTA CORPORATION
MADISON REALTY SENIOR CARE FUND LLC A DELAWARE LIMITED LIABILITY COMPANY
LANGENDOEN GARY
Cross Plaintiffs and Defendants
MADISON REALTY EQUITIES LLC A CALIFORNIA LIMITED LIABILITY COMPANY
MADISON REALTY SENIOR CARE FUND LLC A DELAWARE LIMITED LIABILITY COMPANY
LANGENDOEN GARY
Not Classified By Court
HERSHTIK LLP
KEEGAN LINSCOTT & ASSOCIATES PC
SUNWEST BANK
Attorney/Law Firm Details
Plaintiff Attorneys
SERGENIAN DAVID A.
SMITH SCOTT O.
Defendant Attorney
ANDERSON ALLAN E
Cross Defendant Attorney
CHAN CAMILLA Y.
Court Documents
2/8/2023: Notice of Lien
1/26/2023: Substitution of Attorney
1/26/2023: Substitution of Attorney
1/10/2023: Notice - NOTICE PLAINTIFFS NOTICE OF CASE REASSIGNMENT
1/10/2023: Proof of Service (not Summons and Complaint)
1/6/2023: Notice of Case Reassignment and Order for Plaintiff to Give Notice
12/20/2022: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: MEDIATION AND DISCOVERY)
11/16/2022: Stipulation and Order - STIPULATION AND ORDER AND PROPOSED ORDER TO CONTINUE TRIAL DATE
11/9/2022: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))
10/26/2022: Notice of Continuance
10/26/2022: Response - RESPONSE ANSWER TO REQUEST FOR INFORMAL DISCOVERY CONFERENCE
10/24/2022: Informal Discovery Conference
8/24/2022: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: MANDATORY SETTLEMENT CONFERENCE)
8/25/2022: Notice of Ruling - NOTICE OF RULING ON ORDER TO SHOW CAUSE RE: MANDATORY SETTLEMENT CONFERENCE
8/22/2022: Notice - NOTICE OF REMOTE APPEARANCE OF COUNSEL CHRISTOPHER L. DACUS
4/11/2022: Opposition - OPPOSITION TO MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS AND REQUEST FOR SANCTIONS OF $7,130 AGAINST KEEGAN AND ITS COUNSEL, ANDREW WAXLER; DE
4/12/2022: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))
4/14/2022: Declaration - DECLARATION DECLARATION OF CAMILLA Y. CHAN IN SUPPORT OF MOTION TO COMPEL HERSHTIK, LLPS COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS AND REQUEST FOR MONETARY S
Docket Entries
- 08/07/2023
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Hearing08/07/2023 at 08:30 AM in Department 3 at 150 West Commonwealth, Alhambra, CA 91801; Jury Trial
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- 07/27/2023
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Hearing07/27/2023 at 09:00 AM in Department 3 at 150 West Commonwealth, Alhambra, CA 91801; Final Status Conference
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- 04/04/2023
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Hearing04/04/2023 at 08:30 AM in Department 3 at 150 West Commonwealth, Alhambra, CA 91801; Status Conference
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- 02/09/2023
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DocketUpdated -- Notice of Lien: As To Parties:
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- 02/08/2023
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DocketNotice of Lien; Filed by: GRANDTAG BUSINESS CONSULTANTS LTD., a Hong Kong-based company (Plaintiff); SunWest Bank (Non-Party)
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- 01/26/2023
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DocketSubstitution of Attorney; Filed by: Rene Leung, an individual (Cross-Defendant)
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- 01/26/2023
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DocketSubstitution of Attorney; Filed by: GRANDTAG BUSINESS CONSULTANTS LTD., a Hong Kong-based company (Plaintiff)
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- 01/17/2023
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DocketCase reassigned to Alhambra Courthouse in Department 3 - Hon. William A. Crowfooteffective 01/17/2023; Reason: Inventory Transfer
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- 01/10/2023
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DocketProof of Service (not Summons and Complaint); Filed by: GT MADISON REALTY, LLC, a Delaware limited liability company (Plaintiff); As to: MADISON REALTY EQUITIES, LLC, a California limited liability company (Defendant)
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- 01/10/2023
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DocketNotice PLAINTIFFS NOTICE OF CASE REASSIGNMENT; Filed by: GT MADISON REALTY, LLC, a Delaware limited liability company (Plaintiff); GTM U.S. SENIOR HOUSING REIT, L.P., a Delaware limited partnership (Plaintiff); GTM U.S. SENIOR HOUSING REIT, INC., a Delaware corporation (Plaintiff); As to: MADISON REALTY EQUITIES, LLC, a California limited liability company (Defendant); Rene Leung, an individual (Cross-Defendant); GARY LANGENDOEN (Defendant) et al.
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- 12/08/2020
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DocketCase assigned to Hon. Curtis A. Kin in Department E Glendale Courthouse
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- 12/08/2020
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DocketOrder to Show Cause Re: Failure to File Proof of Service Re: Failure to Comply with Trial Court Delay Reduction Act scheduled for 05/10/2021 at 08:30 AM in Glendale Courthouse at Department E
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- 12/08/2020
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DocketOrder to Show Cause Failure to File Proof of Service; Filed by: Clerk
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- 12/08/2020
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DocketOrder to Show Cause Re: Failure to File Proof of Service Re: Failure to Comply with Trial Court Delay Reduction Act scheduled for 02/23/2021 at 08:30 AM in Glendale Courthouse at Department E
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- 12/08/2020
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DocketNotice of Case Management Conference; Filed by: Clerk
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- 12/08/2020
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DocketCase Management Conference scheduled for 05/10/2021 at 08:30 AM in Glendale Courthouse at Department E
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- 12/07/2020
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DocketComplaint; Filed by: GT MADISON REALTY, LLC, a Delaware limited liability company (Plaintiff); GRANDTAG BUSINESS CONSULTANTS LTD., a Hong Kong-based company (Plaintiff); GTM U.S. SENIOR HOUSING REIT, L.P., a Delaware limited partnership (Plaintiff); GTM U.S. SENIOR HOUSING REIT, INC., a Delaware corporation (Plaintiff); As to: MADISON REALTY EQUITIES, LLC, a California limited liability company (Defendant); GARY LANGENDOEN (Defendant); LUKE MCCARTHY (Defendant) et al.
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- 12/07/2020
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DocketSummons on Complaint; Issued and Filed by: GT MADISON REALTY, LLC, a Delaware limited liability company (Plaintiff); GRANDTAG BUSINESS CONSULTANTS LTD., a Hong Kong-based company (Plaintiff); GTM U.S. SENIOR HOUSING REIT, L.P., a Delaware limited partnership (Plaintiff); GTM U.S. SENIOR HOUSING REIT, INC., a Delaware corporation (Plaintiff); As to: MADISON REALTY EQUITIES, LLC, a California limited liability company (Defendant); GARY LANGENDOEN (Defendant); LUKE MCCARTHY (Defendant) et al.
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- 12/07/2020
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DocketCivil Case Cover Sheet; Filed by: GT MADISON REALTY, LLC, a Delaware limited liability company (Plaintiff); GRANDTAG BUSINESS CONSULTANTS LTD., a Hong Kong-based company (Plaintiff); GTM U.S. SENIOR HOUSING REIT, L.P., a Delaware limited partnership (Plaintiff); GTM U.S. SENIOR HOUSING REIT, INC., a Delaware corporation (Plaintiff); As to: MADISON REALTY EQUITIES, LLC, a California limited liability company (Defendant); GARY LANGENDOEN (Defendant); LUKE MCCARTHY (Defendant) et al.
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- 12/07/2020
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DocketNotice of Case Assignment - Unlimited Civil Case; Filed by: Clerk
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Tentative Rulings
Case Number: *******1056 Hearing Date: May 25, 2022 Dept: 3
Superior Court of California
County of Los Angeles – NORTHEAST District
Department 3
| gt madison realty, llc
vs.
madison realty equities, llc
| Case No.: | *******1056 |
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| Hearing Date: | May 25, 2022 | |
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[Tentative] Order RE:
madison realty equities, llc and gary langedoen’s motion for protective order
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| AND RELATED CROSS-ACTION |
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MOVING PARTIES: Defendants Madison Realty Equities, LLC and Gary Langendoen
RESPONDING PARTY: Plaintiffs GT Madison Realty, LLC; GTM U.S. Senior Housing REIT, L.P.; and GTM U.S. Senior Housing REIT, Inc.
Madison Realty Equities, LLC and Gary Langendoen’s Motion for Protective Order
The court considered the moving and opposition papers filed in connection with this motion. No reply was filed.
BACKGROUND
This dispute relates to business records subpoenas served by Plaintiffs GT Madison Realty, LLC (“GTM Realty”), GTM U.S. Senior Housing REIT, L.P., and GTM U.S. Senior Housing REIT, Inc. (collectively, “Plaintiffs”) on East West Bank, City National Bank, and Bank of America. The subpoenas seek bank statements, checks, wire transfers, and account withdrawals/deposits for accounts belonging to entities owned by and/or affiliated with Defendants Madison Realty Equities, LLC and Gary Langendoen (jointly, “Defendants”). Defendants objected to the subpoenas, and the parties participated in an informal discovery conference on April 12, 2022 regarding those objections.
During the meet and confer process, the parties could not agree to allowing the production of the bank records subject to a “Highly Confidential” designation as set forth in the parties’ stipulated protective order. A “Highly Confidential” designation would limit disclosure of the documents to outside trial counsel, outside experts or expert consultants, court reporters, and the court.
Defendants now move for a protective order designating all bank records produced by the subpoenaed banks as “Highly Confidential.”
DISCUSSION
Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713
The court notes that Defendants’ meet and confer correspondence ends with an email from Defendants’ counsel to Plaintiffs’ counsel on April 21, 2022. (Leung Decl., 8.) The motion was thereafter filed on April 25, 2022. Based on Plaintiffs’ opposition, Plaintiffs’ counsel responded to the April 21, 2022 email on April 25, 2022, indicating that Plaintiffs were willing to continue to meet and confer regarding the “Highly Confidential” designation. Thus, it appears that the parties have not finished meeting and conferring on this issue. Moreover, at the time the motion was filed, the banks had yet to produce any documents. Based on Plaintiffs’ representations, however, all banks have now responded. (Chan Decl., 8-11.) In light of these facts, the court finds that continued meeting and conferring is the appropriate course of action.
CONCLUSION
Based on the foregoing, the court continues Defendants’ motion for protective order to , at 8:30 a.m., in Dept. 3.
The court orders Plaintiffs and Defendants to meet and confer regarding the documents that have been produced pursuant to the subpoenas and to determine whether any or all or none of the documents should be designated “Highly Confidential.” If the parties are unable to reach a resolution, the court orders the parties to file a joint declaration setting forth their efforts to meet and confer 5 court days prior to the date of the continued hearing.
Defendants are ordered to give notice of this ruling.
IT IS SO ORDERED.
DATED: May 25, 2022
Colin Leis
Judge of the Superior Court
Case Number: *******1056 Hearing Date: May 16, 2022 Dept: 3
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTHEAST DISTRICT
DEPARTMENT 3
GT MADISON REALTY, LLC
vs.
MADISON REALTY EQUITIES, LLC
| Case No.: | *******1056 |
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Hearing Date: | May 16, 2022 | |
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[TENTATIVE] ORDER RE:
GT MADISON REALTY, LLC; GTM U.S. SENIOR HOUSING REIT, L.P.; AND GTM U.S. SENIOR HOUSING REIT, INC.’S MOTION TO COMPEL HERSHTIK, LLP’S COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS AND REQUEST FOR MONETARY SANCTIONS OF $7,660 AGAINST HERSHTIK, LLP AND ITS COUNSEL, FREEMAN MATHIS & GARY, LLP
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AND RELATED CROSS-ACTION |
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MOVING PARTIES: Plaintiffs and Cross-Defendants GT Madison Realty, LLC, GTM U.S. Senior Housing REIT, L.P., and GTM U.S. Senior Housing REIT, Inc.
RESPONDING PARTY: Non-party Hershtik, LLP
GT Madison Realty, LLC; GTM U.S. Senior Housing REIT, L.P.; and GTM U.S. Senior Housing REIT, Inc.’s Motion to Compel Hershtik, LLP’s Compliance with Deposition Subpoena for Production of Business Records and Request for Monetary Sanctions of $7,660 against Hershtik, LLP and Its Counsel, Freeman Mathis & Gary, LLP
The court considered the moving, opposition, and reply papers filed in connection with this motion.
BACKGROUND
On December 29, 2021, Plaintiffs GT Madison Realty, LLC (“GTM Realty”), GTM U.S. Senior Housing REIT, L.P., and GTM U.S. Senior Housing REIT, Inc. (collectively, “Plaintiffs”) served a deposition subpoena for production of business records to their former accounting firm, Hershtik, LLP (“Hershtik”). (Chan Decl., 2, Ex. A.) Plaintiffs served notice to all parties of the subpoena on January 3, 2022. (Chan Decl., 3, Ex. 2.) By way of the subpoena, Plaintiffs seek (1) the tax returns of entities that are currently owned by and/or affiliated with Plaintiffs; (2) the accounting records of entities that are currently owned by and/or affiliated with Plaintiffs, and (3) communications about Plaintiffs between Hershtik and Defendants.
Hershtik served objections in response to the subpoena on February 11, 2022. (Chan Decl., 6, Ex. C.) Plaintiffs’ counsel then attempted to meet and confer with Hershtik regarding the objections. (Chan Decl., 7-15.) To date, Hershtik has failed to produce any documents responsive to the subpoena. (Chan Decl., 16-17.)
Plaintiffs now move to compel Hershtik to produce documents responsive to the subpoena.
EVIDENTIARY OBJECTIONS
The court overrules Plaintiffs’ objections to the Declaration of Elizabeth Lowery. The court overrules Plaintiffs’ objections to the Declaration of Alex Hershtik.
DISCUSSION
Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713
Code of Civil Procedure section 1987.1, subdivision (a) provides:
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.
“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., 2025.480, subd. (a).)
Plaintiffs contend that Hershtik’s objections are without merit. The court agrees.
With regard to the tax returns, none of the statutes and regulations cited by Hershtik prevent Hershtik from producing responsive documents, even in the absence of written consent from the taxpayer. (See Bus. & Prof. Code, 5063.3, subd. (a)(1).) Hershtik objects that the tax returns are its work product not subject to subpoena, but the court finds the Business and Professions Code says otherwise. (Bus. & Prof. Code, 5037, subd. (b).) Hershtik also objects that it has not been fully compensated for its work, but Hershtik offers no binding legal authority, and the court is unaware of any, in which a fee dispute between a tax preparer and the taxpayer overrides a lawfully issued subpoena. The court also finds that Hershtik has not shown that complying with requests for tax returns is unduly burdensome or harassing. To the extent that Hershtik now argues that the documents have been returned and are no longer in its possession, Hershtik failed to make that argument in its written response to the subpoena or during the meet and confer process.
With regard to the accounting records sought by Plaintiffs, the court does not find that these requests are vague or ambiguous or unduly burdensome or harassing. As described by Plaintiffs, these records include the QuickBook files for various entities owned by and/or affiliated with Plaintiffs, and Plaintiffs have been unable to access those records in order to determine the extent of the malfeasance by Plaintiffs’ managers.
With regard to the communications between Hershtik and the defendant managers, the court does not find that Hershtik’s objections have merit for the same reasons as discussed above. The requests are not vague or ambiguous, and Hershtik has failed to demonstrate that producing these documents will be unduly burdensome or expensive.
Lastly, the court finds that monetary sanctions are warranted in this instance, and that the amount of attorney’s fees requested by Plaintiffs is reasonable. (Chan Decl., 19; Suchard Decl., 6-8.)
CONCLUSION
Based on the foregoing, the court grants Plaintiffs’ motion to compel.
The court orders Hershtik to produce all documents in its possession, custody, or control that are responsive to Plaintiffs’ December 29, 2021 deposition subpoena for the production of business records within 10 days of the date of this order.
The court orders Hershtik to pay $7,660 to Plaintiffs within 30 days of the date of this order.
Plaintiffs are ordered to give notice of this ruling.
IT IS SO ORDERED.
DATED: May 16, 2022
Colin Leis
Judge of the Superior Court
Case Number: *******1056 Hearing Date: April 21, 2022 Dept: 3
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTHEAST DISTRICT
DEPARTMENT 3
GT MADISON REALTY, LLC
vs.
MADISON REALTY EQUITIES, LLC
| Case No.: | *******1056 |
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Hearing Date: | April 21, 2022 | |
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[TENTATIVE] ORDER RE:
MOTION TO COMPEL KEEGAN LINSCOTT & ASSOCIATES, PC’S COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS AND REQUEST FOR SANCTIONS OF $7,130 AGAINST KEEGAN AND ITS COUNSEL, ANDREW WAXLER
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MOVING PARTIES: Plaintiffs GT Madison Realty, LLC, GTM U.S. Senior Housing REIT, L.P., and GTM U.S. Senior Housing REIT, Inc.
RESPONDING PARTY: Non-party Keegan Linscott & Associates, PC
Motion to Compel Keegan Linscott & Associates, PC’s Compliance with Deposition Subpoena for Production of Business Records and Request for Sanctions of $7,130 against Keegan and Its Counsel, Andrew Waxler
The court considered the moving, opposition, and reply papers filed in connection with this motion.
BACKGROUND
On December 29, 2021, Plaintiffs GT Madison Realty, LLC (“GTM Realty”), GTM U.S. Senior Housing REIT, L.P., and GTM U.S. Senior Housing REIT, Inc. (collectively, “Plaintiffs”) served a deposition subpoena for production of business records to their former accounting firm, Keegan Linscott & Associates, PC (“Keegan”). (Chan Decl., 2, Ex. 1.) Plaintiffs served notice to all parties of the subpoena on January 3, 2022. (Chan Decl., 3, Ex. 2.) By way of the subpoena, Plaintiffs seek (1) the tax returns of entities that are currently owned and/or controlled by Plaintiffs; (2) the accounting records for various entities managed by Defendants Madison Realty Equities, LLC (“MRE”) and Gary Langendoen, MRE’s managing member during their tenure as the manager of Plaintiff GTM Realty , and (3) communications about Plaintiffs between Keegan and Defendants.
Keegan did not object to the subpoena or produce responsive documents by the January 21, 2022 deadline. (Chan Decl., 6.) Plaintiffs’ counsel then attempted to meet and confer with Keegan to determine whether Keegan would be complying with the subpoena. (Chan Decl., 4, Ex. 3.) Keegan’s president, Carla Keegan, stated that documents would be produced the following day. (Chan Decl., 4, Ex. 3.) However, Plaintiffs never received any documents. (Chan Decl., 6.) On February 15, 2022, Keegan’s counsel represented that Plaintiffs should expect a response to the subpoena shortly, but no response was provided. (Chan Decl., 5, 8, Ex. 4.) On March 16, 2022, Plaintiffs again inquired about Keegan’s document production, but Keegan produced no documents in response. (Chan Decl., 6, Ex. 5.)
Plaintiffs now move to compel Keegan to produce documents responsive to the subpoena.
DISCUSSION
Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713
Code of Civil Procedure section 1987.1, subdivision (a) provides:
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.
“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., 2025.480, subd. (a).)
Keegan contends that because it is an Arizona resident, the court has no jurisdiction to enforce a subpoena against it. Ordinarily, Keegan would be correct to the extent that the subpoena seeks business records held outside California. (I-CA Enters., Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th 257, 279-282; Amoco Chem. Co. v. Certain Underwriters at Lloyd’s of London (1995) 34 Cal.App.4th 554, 559; and, Coopman v. Superior Court (1965) 237 Cal.App.2d 656, 661-662.) Limiting the subpoena’s reach to only business records without a personal appearance (see Code of Civ. Proc., 1987.3) would not ordinarily cure this court’s lack of jurisdiction over an Arizona resident because authority over the records presupposes authority over the person. (Accord Amoco Chemical Co., supra, at p. 560; Coopman, supra, at pp. 660-661.) Here, however, Keegan waived its jurisdictional objection to production of records by failing to object. (Monarch Healthcare v Superior Court (2000) 78 Cal.App.4th 1282, 1284 [sufficient for non-party to object instead of filing motion to quash, but still must object].)
Keegan also contends that the motion to compel was brought too early. The court disagrees. After several rounds of meeting and conferring between January 21, 2022, when a response was due, and March 16, 2022, there was no indication that further meeting and conferring would produce compliance with the subpoena. This motion was then filed on March 22, 2022. Plaintiffs were not required to wait until the 60-day deadline to bring a motion to compel had elapsed. This is especially true in a situation where no objections or responses were served, rendering the 60-day deadline arguably moot.
Next, Keegan contends that it cannot produce the tax returns without consent from all parties pursuant to IRS regulations and AICPA professional standards. First, the court notes that the subpoena seeks documents in addition to tax returns, and Keegan has not produced any non-tax return documents. Second, while tax returns are privileged from disclosure (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 720), no objections based on that privilege were made by Keegan or any of the individuals and entities to whom notice of the subpoena was given. Therefore, the privilege is waived. (Fortunato v. Superior Court (2003) 114 Cal.App.4th 475, 479; Code Civ. Proc., 2025.460, subd. (a).) According to Keegan, it is exercising an abundance of caution to get necessary consents from Rene Leung, Gary Langendoen, Brad McCarthy as the personal representative for Luke McCarthy, D.R.I.V.E. Management, Inc., and Madison Realty Senior Care Fund, LLC before producing tax return documents. (Borowski Decl., 6-10.) But as noted by Plaintiffs, the subpoena is not seeking tax returns involving any of these individuals or entities, and so it is unclear for what reason Keegan is seeking their consent before disclosure of the subpoenaed tax returns.
Finally, the court declines to impose monetary sanctions because, absent the court’s finding of waiver, Keegan’s opposition raised a substantial jurisdictional issue.
CONCLUSION
Based on the foregoing, the court grants Plaintiffs’ motion to compel.
The court orders Keegan to produce all documents in its possession, custody, or control that are responsive to Plaintiffs’ December 29, 2021 deposition subpoena for the production of business records within 10 days of the date of this order.
Plaintiffs are ordered to give notice of this ruling.
IT IS SO ORDERED.
DATED: April 21, 2022
Colin Leis
Judge of the Superior Court
b'
Case Number: *******1056 Hearing Date: November 19, 2021 Dept: 3
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTHEAST DISTRICT
DEPARTMENT 3
GT MADISON REALTY, LLC
vs.
MADISON REALTY EQUITIES, LLC
| Case No.: | *******1056 |
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Hearing Date: | November 19, 2021 | |
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[TENTATIVE] ORDER RE:
PLAINTIFFS GRANDTAG BUSINESS CONSULTANTS LTD.; GT MADISON REALTY, LLC; GTM U.S. SENIOR HOUSING REIT, L.P.; AND GTM U.S. SENIOR HOUSING REIT, INC.’S JOINT MOTION TO SUBSTITUTE BRADFORD P. MCCARTHY, PERSONAL REPRESENTATIVE OF THE ESTATE OF LUKE V. MCCARTHY, FOR DEFENDANT LUKE MCCARTHY
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MOVING PARTIES: Plaintiffs Grandtag Business Consultants Ltd., GT Madison Realty, LLC, GTM U.S. Senior Housing REIT, L.P., and GTM U.S. Senior Housing REIT, Inc.
RESPONDING PARTY: N/A
Plaintiffs Grandtag Business Consultants Ltd.; GT Madison Realty, LLC; GTM U.S. Senior Housing REIT, L.P.; and GTM U.S. Senior Housing REIT, Inc.’s Joint Motion to Substitute Bradford P. McCarthy, Personal Representative of the Estate of Luke V. McCarthy, for Defendant Luke McCarthy
The court considered the moving papers filed in connection with this motion. No opposition to the motion was filed.
BACKGROUND
Plaintiffs Grandtag Business Consultants Ltd., GT Madison Realty, LLC, GTM U.S. Senior Housing REIT, L.P., and GTM U.S. Senior Housing REIT, Inc. (collectively, “Plaintiffs”) filed this action on December 7, 2020 against, among others, Defendant Luke McCarthy (“Decedent”).
Decedent passed away on November 22, 2020, and on February 5, 2021, Bradford P. McCarthy was appointed the personal representative of Decedent’s estate. (Chan Decl., ¶ 3, Ex. A.) The appointment became effective on March 2, 2021, when letters were first issued to Mr. McCarthy. (Chan Decl., ¶ 4, Ex. B.) On April 9, 2021, Plaintiffs were served with Notice of Administration of Decedent’s estate. (Chan Decl., ¶ 5, Ex. C.)
On April 19, 2021, GT Madison Realty, LLC, GTM U.S. Senior Housing REIT, L.P., and GTM U.S. Senior Housing REIT, Inc. filed their respective creditors’ claims with Decedent’s estate, which seek recovery based on the conduct alleged in the complaint in the instant action. (Chan Decl., ¶ 6, Ex. D.) On April 20, 2021, Grandtag Business Consultants Ltd. filed its creditor’s claim with Decedent’s estate. (Sarkozi Decl., ¶ 3, Ex. A.) On May 20, 2021, counsel for Mr. McCarthy requested a 30-day extension of the deadline to respond to the creditors’ claims, which request was granted by Plaintiffs. (Chan Decl., ¶ 7, Ex. E; Sarkozi Decl., ¶¶ 4-5, Exs. B, C.) Since then, neither Mr. McCarthy nor the probate court have acted on or rejected Plaintiffs’ claims. (Chan Decl., ¶¶ 8-9; Sarkozi Decl., ¶¶ 6-7.)
DISCUSSION
Code of Civil Procedure section 377.41 provides: “On motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest, except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims is first made.”
Probate Code section 9370 sets forth the requirements for an action to be able to proceed against a decedent’s personal representative as follows:
(1) A claim is first filed as provided in this part.
(2) The claim is rejected in whole or in part.
(3) Within three months after the notice of rejection is given, the plaintiff applies to the court in which the action or proceeding is pending for an order to substitute the personal representative in the action or proceeding. This paragraph applies only if the notice of rejection contains a statement that the plaintiff has three months within which to apply for an order for substitution.
(Prob. Code, ; 9370, subd. (a).)
First, creditors’ claims must be filed and served on the personal representative within the later of 60 days after the creditors are served with a Notice of Administration or four months after letters are first issued to the personal representative. (Prob. Code, ; 9100.) The court finds that Plaintiffs’ creditors’ claims were timely filed and served.
Second, Plaintiffs have elected to treat their claims as rejected as of June 21, 2021. (Prob. Code, ; 9256 [“If within 30 days after a claim is filed the personal representative or the court or judge has refused or neglected to act on the claim, the refusal or neglect may, at the option of the creditor, be deemed equivalent to giving a notice of rejection on the 30th day.”].)
Third, the court finds that the instant motion was timely filed within three months after the claims were deemed rejected.
CONCLUSION
Based on the foregoing, the court grants Plaintiffs’ motion to substitute Bradford P. McCarthy, personal representative of Luke V. McCarthy’s estate, as a defendant in this action in place of Defendant Luke McCarthy.
Plaintiffs are ordered to give notice of this ruling.
IT IS SO ORDERED.
DATED: November 19, 2021
_____________________________
Colin Leis
Judge of the Superior Court
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