This case was last updated from Los Angeles County Superior Courts on 11/03/2022 at 13:14:49 (UTC).

J. VLADIMIR CALDERON VS 5633 MAYWOOD, LLC

Case Summary

On 11/01/2017 J VLADIMIR CALDERON filed a Property - Other Real Property lawsuit against 5633 MAYWOOD, LLC. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The Judges overseeing this case are PATRICK T. MEYERS, RAUL A. SAHAGUN, OLIVIA ROSALES, JOHN A. TORRIBIO, LORI ANN FOURNIER and MARGARET MILLER BERNAL. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6680

  • Filing Date:

    11/01/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

PATRICK T. MEYERS

RAUL A. SAHAGUN

OLIVIA ROSALES

JOHN A. TORRIBIO

LORI ANN FOURNIER

MARGARET MILLER BERNAL

 

Party Details

Plaintiffs and Cross Defendants

J. VLADIMIR CALDERON AS TRUSTEE OF THE

J. VLADIMIR CALDERON INDIVIDUALLY AND

CALDERON J. VLADIMIR

COMMERCE ESCROW

J.J. LITTLE CO. INC.

LITTLE REINE D.

PACIFIC PREMIER BANK

RODRIGUEZ AUGUSTIN ALEJANDRO AKA ALEX RODRIGUEZ

RODRIGUEZ DIMAS

COMMERCE ESCROW A DIVISION OF PACIFIC PREMIER BANK

J. J. LITTLE CO. INC. A CALIFORNIA CORPORATION

PACIFIC PREMIER BANK A CALIFORNIA CORPORATION

Cross Plaintiffs and Defendants

5633 MAYWOOD LLC A CALIFORNIA LIMITED

ALVARENGA JOSE

DIMAS WILLIAM

HERNANDEZ JUAN

5 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorneys

KAZEMI KATAYOUN CATHY

MASHIAN BAHMAN B.

MOORE WALTER WHITMAN

MASHIAN LAW GROUP

Defendant Attorneys

BUNNETT JOHN ALLEN

BUNNETT JOHN A. LAW OFFICES

Cross Plaintiff Attorney

BECKMAN JOEL JAMES

Cross Defendant Attorneys

PRINCE DAVID LOUIS

DAVIS MATTHEW STEPHEN

 

Court Documents

Request for Judicial Notice - REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER OF CROSS DEFENDANT PACIFIC PREMIER BANK/COMMERCE ESCROW,A DIVISION OF PACIFIC PREMIER BANK TO CROSS-COMPLAINT

10/28/2022: Request for Judicial Notice - REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER OF CROSS DEFENDANT PACIFIC PREMIER BANK/COMMERCE ESCROW,A DIVISION OF PACIFIC PREMIER BANK TO CROSS-COMPLAINT

Demurrer - without Motion to Strike - DEMURRER - WITHOUT MOTION TO STRIKE OF CROSS-DEFENDANT PACIFIC PREMIER BANK/COMMERCE ESCROW,A DIVISION OF PACIFIC PREMIER BANK TO FIRST-AMENDED CROSS-COMPLAINT

10/28/2022: Demurrer - without Motion to Strike - DEMURRER - WITHOUT MOTION TO STRIKE OF CROSS-DEFENDANT PACIFIC PREMIER BANK/COMMERCE ESCROW,A DIVISION OF PACIFIC PREMIER BANK TO FIRST-AMENDED CROSS-COMPLAINT

Summons - SUMMONS ON CROSS COMPLAINT (2ND)

10/21/2022: Summons - SUMMONS ON CROSS COMPLAINT (2ND)

Amended Complaint - AMENDED COMPLAINT (3RD)

10/21/2022: Amended Complaint - AMENDED COMPLAINT (3RD)

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE)

10/11/2022: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE)

Order - COURT ORDER/RULING (HEARING 10-11-22)

10/11/2022: Order - COURT ORDER/RULING (HEARING 10-11-22)

Notice of Ruling

10/11/2022: Notice of Ruling

Unknown - DECLARATION OF DEMURRING PARTY IN SUPPORT OF AUTOMATIC EXTENSION

10/4/2022: Unknown - DECLARATION OF DEMURRING PARTY IN SUPPORT OF AUTOMATIC EXTENSION

Notice - NOTICE THAT CROSS-DEFENDANT PACIFIC PREMIR BANK/COMMERCE ESCROW'S DEMURRER ONLY TO CROSS-COMPLAINT OF JOSE ALVARENGA, WILLIAM DIMAS AND JUAN HERNANDEZ IS OFF CALENDAR UNDER CCP 472

10/4/2022: Notice - NOTICE THAT CROSS-DEFENDANT PACIFIC PREMIR BANK/COMMERCE ESCROW'S DEMURRER ONLY TO CROSS-COMPLAINT OF JOSE ALVARENGA, WILLIAM DIMAS AND JUAN HERNANDEZ IS OFF CALENDAR UNDER CCP 472

Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES OF 5633 MAYWOOD, LLC IN OPPOSITION TO PACIFIC PREMIER BANK AND COMMERCE ESCROWS DEMURRER TO 5633 MAYWOOD, LLCS SECOND AMENDED

9/27/2022: Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES OF 5633 MAYWOOD, LLC IN OPPOSITION TO PACIFIC PREMIER BANK AND COMMERCE ESCROWS DEMURRER TO 5633 MAYWOOD, LLCS SECOND AMENDED

Summons - SUMMONS ON FIRST AMENDED CROSS COMPLAINT

9/28/2022: Summons - SUMMONS ON FIRST AMENDED CROSS COMPLAINT

Proof of Service by Mail

9/29/2022: Proof of Service by Mail

Proof of Personal Service

9/6/2022: Proof of Personal Service

Proof of Personal Service

9/6/2022: Proof of Personal Service

Proof of Personal Service

9/6/2022: Proof of Personal Service

Proof of Personal Service

9/6/2022: Proof of Personal Service

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: AS TO THE CROSS COMPLAINT FILED ON 12...)

9/6/2022: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: AS TO THE CROSS COMPLAINT FILED ON 12...)

Notice of Ruling

9/7/2022: Notice of Ruling

163 More Documents Available

 

Docket Entries

  • 03/09/2023
  • Hearing03/09/2023 at 10:30 AM in Department C at 12720 Norwalk Blvd., Norwalk, CA 90650; Hearing on Demurrer - without Motion to Strike

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  • 11/10/2022
  • Hearing11/10/2022 at 10:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Trial Setting Conference

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  • 11/10/2022
  • Hearing11/10/2022 at 10:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Order to Show Cause Re: as to the Cross Complaint filed on 12/21/2021

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  • 10/31/2022
  • Docketat 09:30 AM in Department F; Non-Jury Trial ((time estimate for trial is 4-5 days)(MSC Judge Meyers 12/03/2019)) - Not Held - Advanced and Vacated

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  • 10/28/2022
  • DocketRequest for Judicial Notice (IN SUPPORT OF DEMURRER OF CROSS DEFENDANT PACIFIC PREMIER BANK/COMMERCE ESCROW,A DIVISION OF PACIFIC PREMIER BANK TO CROSS-COMPLAINT); Filed by Pacific Premier Bank (Cross-Defendant)

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  • 10/28/2022
  • DocketDemurrer - without Motion to Strike (OF CROSS-DEFENDANT PACIFIC PREMIER BANK/COMMERCE ESCROW,A DIVISION OF PACIFIC PREMIER BANK TO FIRST-AMENDED CROSS-COMPLAINT); Filed by Pacific Premier Bank (Cross-Defendant)

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  • 10/21/2022
  • DocketSummons (on Cross Complaint (2nd)); Filed by 5633 MAYWOOD LLC, a california limited (Cross-Complainant)

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  • 10/21/2022
  • DocketAmended Complaint ( (3rd)); Filed by 5633 MAYWOOD LLC, a california limited (Cross-Complainant)

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  • 10/11/2022
  • Docketat 10:30 AM in Department C; Hearing on Demurrer - without Motion to Strike - Not Held - Taken Off Calendar by Party

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  • 10/11/2022
  • Docketat 10:30 AM in Department C, Olivia Rosales, Presiding; Hearing on Demurrer - without Motion to Strike - Held

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243 More Docket Entries
  • 11/27/2017
  • DocketRtn of Service of Summons & Compl; Filed by J. VLADIMIR CALDERON, as Trustee of the (Plaintiff)

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  • 11/27/2017
  • DocketRtn of Service of Summons & Compl (BY PERSONAL SERVICE ON 11/03/17 ); Filed by Attorney for Plaintiff

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  • 11/06/2017
  • DocketNotice-Pending Action; Filed by J. VLADIMIR CALDERON, as Trustee of the (Plaintiff)

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  • 11/06/2017
  • DocketNotice-Pending Action; Filed by Attorney for Plaintiff

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  • 11/01/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 11/01/2017
  • DocketComplaint filed-Summons Issued; Filed by J. VLADIMIR CALDERON, as Trustee of the (Plaintiff)

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  • 11/01/2017
  • DocketSummons; Filed by J. VLADIMIR CALDERON, as Trustee of the (Plaintiff)

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  • 11/01/2017
  • DocketNotice-Case Management Conference; Filed by Clerk

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  • 11/01/2017
  • DocketSummons Filed; Filed by Attorney for Plaintiff

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  • 11/01/2017
  • DocketComplaint filed-Summons Issued; Filed by Attorney for Plaintiff

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Tentative Rulings

Case Number: ****6680 Hearing Date: October 11, 2022 Dept: SEC

CALDERON v. 5633 MAYWOOD, LLC

CASE NO.: ****6680

HEARING: 10/11/22 @ 10:30 AM

#4

TENTATIVE RULING

Cross-Defendant Pacific Premier Bank/Commerce Escrow’s demurrer to second amended cross-complaint of 5633 Maywood, LLC is SUSTAINED with 10 days leave to amend.

Moving Party to give NOTICE.

Cross-Defendant Pacific Premier Bank/Commerce Escrow (“Commerce”) demurs to the 2nd – 4th causes of action on the ground that they fail to state facts sufficient to constitute a cause of action.

The action was filed by Plaintiff J. Vladimir Calderon on November 1, 2017. The operative First Amended Complaint (“FAC”) alleges that Defendant 5633 Maywood, LLC entered into a contract with Plaintiff on September 19, 2017, whereby Plaintiff agreed to buy and Defendant agreed to sell its Property for $3,400,000. (FAC, 13.) Defendant did not proceed with the sale. (Id., 15.) Based thereon, the Complaint asserts causes of action for:

1. Breach of Contract

2. Breach of the Covenant of Good Faith and Fair Dealing

3. Voidable Transfer – Fraud

4. Voidable Transfer – Constructive Fraud

5. Violation of Corp. Code 17704.05 and 17704.06

5633 Maywood, LLC’s operative Second Amended Cross-Complaint (“SAXC”) asserts causes of action for:

1. Breach of Contract (v. Calderon)

2. Partial Indemnity on a Comparative Fault Basis (v. Pacific Premier, Commerce Escrow, JJ Little Co., Little, and Rodriguez)

3. Total Equitable Indemnity on a Comparative Fault Basis (v. Pacific Premier, Commerce Escrow, JJ Little Co., Little, and Rodriguez)

4. Declaratory Relief (v. all Cross-Defendants)

2nd – 4th CAUSES OF ACTION

Cross-Defendant demurs to the causes of action because the pleadings do not allege any factual basis for which Cross-Defendant may be held comparatively at fault for the underlying Breach of Contract.

In opposition, Cross-Complainant agrees that the arguments in the demurrer are well taken, and that additional facts need to be alleged. Cross-Complainant requests leave to amend.

Accordingly, the demurrer is SUSTAINED with 10 days leave to amend.



Case Number: ****6680 Hearing Date: March 3, 2022 Dept: C

CALDERON v., 5633 MAYWOOD, LLC

CASE NO.: ****6680

HEARING: 03/03/22

#10

TENTATIVE ORDER

Cross-Complainant 5633 MAYWOOD, LLC’s unopposed Motion for Leave to File a Second Amended Cross-Complaint is GRANTED.

The Proposed Second Amended Cross-Complaint attached as Exhibit 1 to the Moving Papers is not deemed served and filed as of the date of this hearing. The Moving Party is ORDERED to FILE and SERVE the Second Amended Cross-Complaint by no later than 5 court days from the Court’s issuance of this Order.

Moving Party to give Notice.

No Opposition filed as of March 2, 2022.

This real property action was filed on November 1, 2017. The 5 year statute is approaching.

California recognizes “a general rule of…liberal allowance of amendments…” (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.) It has also long been recognized that “even if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) In light of great liberality employed when ruling on a motion for leave to amend, the court will not normally consider the validity of the proposed amended pleading since grounds for demurrer or motion to strike are premature. Thus, absent prejudice to the opposing party, courts are bound to apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial.” (emphasis added.) (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.)

In light of the liberality associated with granting motions for leave to amend up to and including the time of trial, and in light of the lack of Opposition, the Court finds that Cross-Complainant should be afforded the opportunity to make the proposed amendments. Opposing parties maintain their right to demur, move to strike, or for summary judgment. The Motion is GRANTED.



b'

Case Number: ****6680 Hearing Date: October 14, 2021 Dept: C

CALDERON v. 5633 MAYWOOD, LLC

CASE NO.: ****6680

HEARING: 10/14/21

#2

TENTATIVE ORDER

I. Plaintiff’s Motion for Leave to file a First Amended Complaint is GRANTED.

II. Defendant’s Motion for Summary Judgment/Summary Adjudication is MOOT.

The Proposed First Amended Complaint, attached as Exhibit 2 to the Reply Declaration of Bryan Mashian is not deemed served and filed as of the date of this hearing. Plaintiff is ORDERED to FILE and SERVE its First Amended Complaint by no later than 5 court days from the Court’s issuance of this Order.

Plaintiff to give Notice.

This action was filed on November 1, 2017. On June 19, 2020, Defendant filed a Motion for Summary Judgment/Adjudication. On October 14, 2020, Plaintiff filed the instant Motion for Leave to File a First Amended Complaint.

Plaintiff’s proposed amendments are as follows: (1) strike the first cause of action for Specific Performance; (2) add three member-managers of Defendant 5633 Maywood, LLC: Jose Alvarenga, William Dimas, and Juan Hernandez as defendants; (3) add alter ego allegations; (4) amend the second cause of action for breach of contract and third cause of action for breach of the covenant of good faith and fair dealing; (5) add a third cause of action for voidable transfer – actual fraud; (6) add a fourth cause of action for constructive fraudulent transfer; and (7) add a fifth cause of action for Violation of Corporations Code ;;11704.05 and 11704.06.

California recognizes “a general rule of…liberal allowance of amendments…” (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.) It has also long been recognized that “even if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) In light of great liberality employed when ruling on a motion for leave to amend, the court will not normally consider the validity of the proposed amended pleading since grounds for demurrer or motion to strike are premature. Thus, absent prejudice to the opposing party, courts are bound to apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.)

Here, the Court finds that Plaintiff should be afforded the opportunity to add/delete causes of action; add defendants to this action; correct defects in the general allegations pled in the original Complaint; and allege additional facts stemming from those alleged in the original pleading. Counsel for Plaintiff adequately explains that Plaintiff was not aware of certain facts/defendants until after certain causes of action became moot, and after discovery had occurred in July and August 2020. (Mashian Decl, ¶10.) Plaintiff merely wishes to amend the allegations so that they conform to proof. The Court does not find that Plaintiff’s delay in seeking leave to amend was unwarranted. Defendant (s) maintain their right to demur, file a motion to strike, or move for summary judgment, if necessary. Plaintiff’s Motion for Leave to File a First Amended Complaint is GRANTED.

Consequently, the FAC moots the Motion for Summary Judgment/Adjudication directed towards the original Complaint. “It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884.) Thus, an amended complaint supersedes all prior complaints. (Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300, 1307.) “The amended complaint furnishes the sole basis for the cause of action and the original complaint ceases to have any effect either as a pleading or as a basis for judgment. [Cite]” (State Compensation Ins. Fund. v. Superior Court (2010) 184 Cal.App.4th 1124, 1130-1131.) “Because there is but one complaint in a civil action, the filing of an amended complaint moots a motion directed to a prior complaint. Thus, once an amended complaint is filed, it is error to grant summary adjudication on a cause of action contained in a previous complaint. [Internal Citations Omitted.]” (Id.)

'


Case Number: ****6680    Hearing Date: April 8, 2021    Dept: C

CALDERON v. 5633 MAYWOOD, LLC

CASE NO.: ****6680

HEARING: 04/08/21

JUDGE: RAUL A. SAHAGUN

#3

TENTATIVE ORDER

Plaintiff’s Motion to Compel Compliance with Deposition Subpoena for Personal Appearance of the Persons Most Qualified to Testify on Behalf of Non-Party J.J. Little Co., Inc. and for Production of Electronically Stored Information is GRANTED in part, and DENIED in part.

Moving Party to give Notice.

Plaintiff moves to compel non-party J.J. Little Co., Inc. (“JJ Little”) to: (1) produce Alex Rodriguez and Dimas Rodriguez, persons identified by JJ Little as the persons most qualified to testify regarding the categories listed in the deposition subpoena on behalf of JJ Little to appear for deposition; and (2) for production of documents identified in the deposition subpoena in their original electronically stored format. Plaintiff maintains that Alex and Dimas Rodriguez are agents of JJ Little, and that JJ Little is statutorily obligated to produce them as “agents who are most qualified to testify….” (CCP ;2025.230.)

In Opposition, JJ Little argues that there is nothing to compel—JJ Little has already designated and produced its PMQ and produced paper copies of all of the documents at issue. JJ Little maintains that it does not employ Alex Rodriguez and Dimas Rodriguez. Rather, Alex and Dimas Rodriguez are independent contractors who lack access to information about JJ Little and JJ Little’s documents. Consequently, JJ Little is unable to produce non-employee/non-agents Alex and Dimas Rodriguez. JJ Little further argues that it has already produced over 1,400 pages of documents in paper form and Plaintiff fails to show why the same documents must be produced in electronic form.

Motion to Compel Production of Alex and Dimas Rodriguez

“If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (CCP ;2025.230.) An agent is defined as “[s]omeone who is authorized to act for or in place of another; a representative.” (AGENT, Black’s Law Dictionary (11th ed. 2019.).)

It is undisputed that Alex and Dimas Rodriguez are not parties to this action, and are not employed by JJ Little. However, Alex and Dimas Rodriguez were identified by JJ Little as those who are most familiar with the topics listed in the Deposition Subpoena. Notwithstanding, Plaintiff has failed to proffer any authority which stands for the proposition that non-party JJ Little should be compelled to produce its independent contractors where they are not alleged to be joint tortfeasors. Outside the realm of joint tortfeasor liability, real estate sales persons are not “agents” of their brokers. Therefore, JJ Little cannot compel its independent contractors to sit for depositions. The Motion to Compel is DENIED as to the production of Alex and Dimas Rodriguez. Plaintiff is not foreclosed from serving deposition subpoenas directly upon Alex and/or Dimas Rodriguez.

Motion to Compel ESI

The Motion is GRANTED as to the production of documents identified in the deposition subpoena in their native (electronic) format. “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.” (CCP ;2025.450)

Here, the deposition subpoena at issue states that, “If any ESI is responsive and non-privileged ,it is required to be produced in native format together with all metadata, attachments, and other related ESI unmodified and intact. Any other non-privileged responsive DOCUMENTS maintained in electronic form must also be produced.” (Moore Dec., ¶6, Ex. 3.) It is unclear why JJ Little chose to produce paper copies of electronically stored information— in direct contravention of the terms of the subpoena. Moreover, in Opposition, JJ Little concedes that it has the ability to produce the documents at issue in their native format. (Opp. 7:15-22.) Within 30 days of this Order, JJ Little is ORDERED to produce electronic copies of the documents at issue, which have not already been electronically produced, that are in its possession, custody, and/or control to Plaintiff.

Given the mixed ruling, sanctions are DENIED.



Case Number: ****6680    Hearing Date: November 05, 2020    Dept: C

CALDERON v. 5633 MAYWOOD, LLC

CASE NO.: ****6680

HEARING: 11/05/2020

JUDGE: JOHN A. TORRIBIO

#4

TENTATIVE ORDER

Plaintiff’s motion for leave to file a First Amended Complaint is GRANTED. CCP ;576.

The Proposed First Amended Complaint, attached as Exhibit 1 to the declaration of Bryan Mashian is not deemed served and filed as of the date of this hearing. Plaintiff is ORDERED to FILE and SERVE its First Amended Complaint by no later than 5 court days from the Court’s issuance of this Order.

Moving Party to give Notice.

This action was filed on November 1, 2017. On October 14, 2020, Plaintiff filed the instant Motion for Leave to File a First Amended Complaint. Plaintiff’s proposed amendments are as follows: (1) strike the first cause of action for Specific Performance; (2) add three member-managers of Defendant 5633 Maywood, LLC: Jose Alvarenga, William Dimas, and Juan Hernandez as defendants; (3) add alter ego allegations; (4) amend the second cause of action for breach of contract and third cause of action for breach of the covenant of good faith and fair dealing; (5) add a third cause of action for voidable transfer – actual fraud; (6) add a fourth cause of action for constructive fraudulent transfer; and (7) add a fifth cause of action for Violation of Corporations Cod e;;11704.05 and 11704.06.

California recognizes “a general rule of…liberal allowance of amendments…” (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.) It has also long been recognized that “even if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) In light of great liberality employed when ruling on a motion for leave to amend, the court will not normally consider the validity of the proposed amended pleading since grounds for demurrer or motion to strike are premature. Thus, absent prejudice to the opposing party, courts are bound to apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.)

Here, the Court finds that Plaintiff should be afforded the opportunity to add/delete causes of action; add defendants to this action; correct defects in the general allegations pled in the original Complaint; and allege additional facts stemming from those alleged in the original pleading. Counsel for Plaintiff adequately explains that Plaintiff was not aware of certain facts/defendants until after discovery had occurred in July and August 2020. (Mashian Decl, ¶10.) Defendant (s) maintain their right to demur, file a motion to strike, or move for summary judgment, if necessary. Plaintiff’s Motion is GRANTED.



Case Number: ****6680    Hearing Date: January 09, 2020    Dept: SEC

CALDERON, as Trustee of the J. Vladimir Calderon Trust v. 5633 MAYWOOD, LLC, et al.

CASE NO.: ****6680

HEARING:  01/09/20

JUDGE: OLIVIA ROSALES

#5

TENTATIVE ORDER

Plaintiff J. Vladimir Calderon’s motion for summary adjudication is DENIED in its entirety.

Moving Party to give NOTICE.

BACKGROUND

On November 1, 2017, Plaintiff J. Vladimir Calderon, as Trustee of the J. Vladimir Calderon Trust (“Calderon”) filed a breach of contract action against Defendant 5633 Maywood, LLC (“Maywood”).

The Complaint alleges that on September 19, 2017 Maywood and Calderon entered into a Standard Offer, Agreement and Escrow Instructions for Purchase of Real Estate (the “Agreement”) whereby Calderon agreed to buy and Maywood agreed to sell the property located at 5633 Maywood Avenue, Maywood, California, 90270 (the “Property”). (Compl. ¶¶ 2, 9.) Calderon further alleges that after he deposited $90,000 with the Escrow Holder according to the parties’ agreement, Maywood informed Calderon that it no longer intended to proceed with the sale of the Property. (Compl. ¶¶ 10-11.) Calderon alleges that Maywood has not taken any action to provide Calderon with the necessary documents, materials, or information to purchase the Property or otherwise uphold its side of the agreement. (Compl. ¶ 13.) Based on these facts, the Complaint asserts causes of action for:

1. Specific Performance

2. Breach of Contract

3. Breach of the Covenant of Good Faith and Fair Dealing

On May 11, 2018, Maywood filed a demurrer to the Complaint.

On July 2, 2018, Maywood filed a Cross-Complaint against Calderon for breach of written contract alleging that it performed all conditions of the purchase agreement and Calderon failed to deposit the purchase money in escrow and remove a lis pendens on the Property to enable to transaction to close.

On July 3, 2018, Maywood took its demurrer to the Complaint off calendar.

On September 17, 2018, Calderon filed a demurrer to Maywood’s Cross-Complaint on the grounds that its breach of contract claim was insufficiently pled.

On November 29, 2018, the court sustained Calderon’s demurrer to the Cross-Complaint with leave to amend.

On December 12, 2018, Defendant and Cross-Complainant filed a First Amended Cross-Complaint.

On April 26, 2019, Calderon filed a motion for judgment on the pleadings to the Cross-Complaint.

On May 21, 2019, the court denied Calderon’s motion.

On October 11, 2019, Calderon filed a motion for summary adjudication against Maywood.

On December 11, 2019, Maywood filed its opposition papers.

On December 20, 2019, Calderon filed his reply and the parties filed a joint stipulation to continue the hearing on Calderon’s motion for summary adjudication to January 9, 2020. The court ordered a continuance in accordance with the parties’ stipulation.

On January 2, 2020, Maywood filed and served evidentiary objections in opposition to Calderon’s motion.

On January 3, 2020, Calderon objected to Maywood’s objections as late-filed.

Trial is set for February 10, 2020.

Calderon moves for summary adjudication on the following issues:

1. Calderon’s Cause of Action for Breach of Contract

2. Calderon’s recovery of expenses incurred for having to secure alternate storage space to avoid interruption of his business operations and mitigate damages occasioned by Maywood’s wrongful conduct

3. Calderon’s recovery of lost interest of Calderon’s funds tied up in escrow for six months

4. Maywood’s Cross-Complaint for breach of contract because it involves the same issues raised in Calderon’s breach of contract claim

5. Calderon’s recovery from Maywood of attorney’s fees and costs incurred in prosecuting his Complaint pursuant to the Attorney’s Fees Clause on page 5, paragraph 16, of the Agreement

ANALYSIS

I. Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) In analyzing such motions, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) Thus, summary judgment or summary adjudication is granted when, after the court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist, and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., ; 437c, subd. (c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.)

As to each claim as framed by the complaint, the party moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to negate or establish an essential element. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) A plaintiff has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. (Code Civ. Proc., ; 437c, subd. (p)(1).)

Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) A motion for summary judgment or summary adjudication must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition or where the opposition is weak. (Leyva v. Superior Court (1985) 164 Cal.App.3d 462, 475; Salesguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387.)

Once the moving party has met its initial burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. (Code Civ. Proc., ; 437c, subd. (o)(1)-(2).) When a party cannot establish an essential element or defense, a court must grant a motion for summary adjudication. (Code Civ. Proc., ; 437c, subd. (o)(1)-(2).)

A. Evidentiary Objections

Objections to evidence in support of, or in opposition to, motions for summary adjudication must be made pursuant to the provisions of California Rules of Court, rule 3.1354. (Cal. Rules of Court, rule 3.1352.)

California Rules of Court, rule 3.1354(a) provides, that “[u]nless otherwise excused by the court on a showing of good cause, all written objections to evidence in support of or in opposition to a motion for summary judgment or summary adjudication must be served and filed at the same time as the objecting party's opposition or reply papers are served and filed.” Rule 3.1354(b) provides that “[a]ll written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion [and] must not be restated or reargued in the separate statement.”

On January 2, 2020, Maywood filed several objections to the declarations of Bryan Mashian (“Mashian”) and J. Vladimir Calderon as well as documentary evidence submitted by Calderon in support of his Motion for Summary Adjudication on October 11, 2019. Maywood also filed objections to Calderon’s supplemental declaration filed with his reply on December 20, 2019. The court finds that Maywood’s evidentiary objections to the documentary evidence and declarations of Calderon and Mashian filed on October 11, 2019 are untimely.

Maywood also made two objections to Calderon’s material facts in its response to Calderon’s separate statement. (Opp. Separate Statement ¶¶ 35, 54.) Such objections were not filed in compliance with Rule 3.1354(b).

For the purposes of this motion, the court will only consider those evidentiary objections filed in compliance with Rule 3.1354.

1) MAYWOOD’S OBJECTIONS TO THE SUPPLEMENTAL DECLARATION OF J. VLADIMIR CALDERON

Objections 21-24: Overruled.

2) CALDERON’S OBJECTIONS TO THE DECLARATION OF EXPERT WITNESS, ALAN D. WALLACE, ESQ.

Objections 1-7: Overruled.

3) CALDERON’S OBJECTIONS TO THE DECLARATION OF MAYWOOD MEMBER, WILLIAM DIMAS

Objections 1-5: Overruled.

Objections 6-7: Sustained. Secondary Evidence Rule. (Evid. Code, ;; 1500, et seq.)

Objections 8-14: Overruled.

Objection 15: Sustained. Secondary Evidence Rule. (Evid. Code, ;; 1500, et seq.)

Objections 16-25: Overruled.

4) CALDERON’S OBJECTIONS TO THE DECLARATION OF MAYWOOD’S COUNSEL, JOHN A. BUNNETT, ESQ.

Objection 1: Sustained. Secondary Evidence Rule. (Evid. Code, ;; 1500, et seq.)

Objection 2: Overruled.

Objection 3: Sustained as to “Apparently escrow had not obtain [sic] the demands from CIT Bank, N.A. in a timely fashion so.” Overruled as to the balance.

Objections 4-7: Overruled.

B. Calderon’s Motion for Summary Adjudication

The parties agree on the following facts:

(1) Escrow was opened on September 19, 2017 (UMF 2); (2) Calderon, through his counsel, Bryan Mashian (“Mashian”), informed Maywood of outstanding documents, materials, information, and actions that Maywood was responsible for completing pursuant to the parties’ Agreement (UMF 3); (3) On November 1, 2017, Calderon filed a Lis Pendens and the Complaint initiating this action (UMF 17); (4) On May 18, 2018, Maywood, through its counsel John Bunnett (“Bunnett”), emailed Mashian a “Demand to Close Escrow” within five business days (UMF 5); (5) On May 22, 2018, Mashian responded to Bunnett stating that Maywood’s demand was void because Maywood still had outstanding requirements to satisfy before it would be in compliance with the Agreement (UMF 6); (6) On June 7, 2018, Calderon and Mashian provided Maywood and Bunnett with a draft lease and addendum pursuant to Maywood’s request for a lease-back (UMF 12); (7) On June 14, 2018, Mashian confirmed that the changes to the lease-back addendum were acceptable, that Calderon would fund the escrow in full, but that he could not close the escrow on June 14, 2018 (UMF 16); (8) On June 14, 2018, Bunnett emailed the escrow company and Mashian stating that because Calderon failed to deposit the funds necessary to close escrow earlier that day, Maywood would deem the escrow “terminated without further notice and instruction” and instructed the escrow company to “refrain from any acts in furtherance of closing the escrow as the escrow by the terms of the contract [had] been terminated” (UMF 21); (9) Calderon fully funded the escrow on June 15, 2018; (10) Paragraph 8.8 of the parties’ Agreement provides that “The Closing shall occur on the Expected Closing Date, or as soon thereafter as the Escrow is in condition for Closing; provided, however, that if the Closing does not occur by the Expected Closing Date and said Date is not extended by mutual instructions of the Parties, a Party not then in default under this Agreement may notify the other Party, Escrow Holder, and Brokers, in writing that, unless the Closing occurs within 5 business days following said notice, the Escrow shall be deemed terminated without further notice or instructions” (UMF 25); (11) Dimas is the Secretary for Maywood and one of the primary decision-makers for Maywood (UMF 46); (12) Dimas stated that Maywood only started to actively seek a replacement property after it was served with Calderon’s complaint in November 2017 (UMF 47). The remaining facts are in dispute.

Calderon moves for summary adjudication on the issues that Maywood breached the Agreement between the parties for the sale of the Property, Maywood owes Calderon money for damages incurred from disruption to his business and lost interest for money held in escrow for six months, and Calderon is entitled to attorney’s fees pursuant to the Agreement.

1) ISSUE ONE: BREACH OF CONTRACT

The elements of an action for breach of contract are (1) the existence of a contract, (2) performance or excuse for nonperformance by plaintiff, (3) breach by defendant, and (4) damages. (Oasis West Realty LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Calderon argues that Maywood rescinded the Agreement and failed to provide it with the necessary documents and take the necessary steps to close escrow in accordance with the parties’ Agreement and that Maywood’s subsequent demands to close escrow were untimely and improper because Maywood failed to tender performance as required. In support of this argument, Calderon provides his own declaration and the declaration of his attorney, Mashian. Specifically, Calderon declares that in late September 2017, one of Maywood’s representatives, Dimas Rodriguez, informed him that Maywood no longer intended to proceed with the sale of the Property. (Calderon Decl., ¶ 7.) Calderon also declares that “Maywood consistently ignored [his] requests, as well as those of Commerce Escrow, to provide the due diligence documents necessary for escrow to close, including but not limited to inter alia documents, materials, and information required by Maywood pursuant to the Agreement [Paragraph] 9.1.” (Calderon Decl., ¶ 8.) Paragraph 9.1 of the Agreement states:

The Closing of this transaction is contingent upon the satisfaction

or waiver of the following contingencies. IF BUYER FAILS TO

NOTIFY ESCROW HOLDER, 1111 WRITING, OF THE

DISAPPROVAL OF ANY OF SAID CONTINGENCIES WITHIN THE

TIME SPECIFIED THEREIN, IT SHALL BE CONCLUSIVELY

PRESUMED THAT BUYER HAS APPROVED SUCH ITEM, MATTER

OR DOCUMENT. Buyer’s conditional approval shall constitute

disapproval, unless provision is made by the Seller within the time

specified therefore by the Buyer in such conditional approval or by this

Agreement, whichever is later, for the satisfaction of the condition imposed

by the Buyer. Escrow Holder shall promptly provide all Parties with copies

of any written disapproval or conditional approval which it receives.

(Calderon Decl., ¶ 5, Exh. B.)

On October 10, 2017, attorney Mashian sent a letter to Maywood’s members, Dwayne Butler, Juan Hernandez, and Dimas Rodriguez regarding the sale of the Property demanding that “Seller perform Seller’s obligation to complete the transaction.” (Mashian Decl., ¶ 3, Exh. 1.) Calderon attests that despite these efforts, Maywood was unwilling to comply with the Agreement, necessitating his filing of this Action. (Calderon Decl., ¶ 8.)

Although Maywood made demands in May and June of 2018 to close escrow, Calderon argues that Maywood’s failure to provide the necessary documents until May 2018 and abruptly canceling escrow following its demands to close was in breach of Paragraph 8.8 of the Agreement. (Calderon Decl., ¶¶ 9-17.) Calderon provides his declaration and the Agreement in support of his argument. (Calderon Decl., ¶ 5, Exh. B.) Paragraph 8.8 of the Agreement states that:

The Closing shall occur on the Expected Closing Date, or as soon

thereafter as the Escrow is in condition for Closing; provided, however,

that if the Closing does not occur by the Expected Closing Date and

said Date is not extended by mutual instructions of the Parties, a Party not

then in default under this Agreement may notify the other Party, Escrow

Holder, and Brokers, in writing that, unless the Closing occurs within 5

business days following said notice, the Escrow shall be deemed

terminated without further notice or instructions.

This evidence is sufficient to shift the burden to Maywood to demonstrate a triable issue of fact as to whether they breached the Agreement.

In opposition, Maywood argues that Calderon was in breach of Paragraph 8.8 of the Agreement because it provided written notice to Calderon prior to terminating the Escrow.

Maywood argues that when Calderon made no effort to deposit the escrow funds in May 2018, despite adequate time to do so, the escrow terminated without further notice or instruction pursuant to Section 8.8 of the purchase agreement. (Dimas ¶ 13.)

Maywood provides evidence that it gave Calderon written notice that it would deem the escrow terminated without further notice unless the closing occurred within five days of delivery of said notice on May 18, 2018 and again on June 7, 2018. (Dimas Decl., ¶¶ 10-11; Bunnett Decl., ¶ 5, Exh. E, ¶ 9, Exh. J.) During this time the parties were also negotiating a leaseback agreement to allow Maywood to remain on the Property as lessees after closing. (Bunnett Decl., ¶¶ 6-10.) Maywood asserts that Paragraph 13 of the Agreement provided that the Property would be transferred to Calderon “subject to the rights of tenants under Existing Leases” and that the tenant Two Star Trucking had an existing lease on the Property that would not expire until April 15, 2044. (Bunnett Decl., ¶ 6, Dimas Decl., ¶ 2, Exh. 1 (the “Agreement”), ¶ 13.)

Maywood establishes a triable issue of material fact as to whether it was Maywood or Calderon that was in breach of the Agreement, thereby allowing Maywood to terminate the escrow pursuant Paragraph 8.8 of the Agreement. Accordingly, Calderon’s motion for summary adjudication is DENIED.

2) ISSUES TWO-FIVE: CONTRACT DAMAGES, MAYWOOD’S BREACH OF CONTRACT CLAIM, AND ATTORNEY’S FEES

As noted by the Court of Appeal in Paramount Petroleum Corporation v. Superior Court (2014) 227 Cal.App.4th 226, “the governing statute provides that a plaintiff can only obtain summary adjudication of a cause of action if the plaintiff establishes each element of the cause of action entitling it to judgment on that cause of action.” (Paramount Petroleum Corporation v. Superior Court (2014) 227 Cal.App.4th 226, 243.) The Court of Appeal thus found that summary adjudication would be improper on an issue of liability until the issue of damages is resolved. (Ibid.) Following the same reasoning, summary adjudication of damages cannot be granted where the existence of a breach of the contract on which that damages claim is predicated is in dispute.

Calderon’s remaining issues are derivative of his motion for summary adjudication regarding his breach of contract cause of action because they are either related to a determination of damages arising from a breach of the contract or arise from Maywood’s competing breach of contract claim. More specifically, there are remaining triable issues of material fact as to (1) the amount due and owing to Calderon for his mitigation of damages, (2) interest for funds held in escrow for six months, (3) the breach of contract claim asserted in Maywood’s Cross-Complaint, and (4) Calderon’s entitlement to attorney’s fees according to the Agreement.

Accordingly, Calderon’s motion for summary adjudication of issues two through five are DENIED.

Conclusion and Order

Plaintiff and Cross-Defendant J. Vladimir Calderon’s motion for summary adjudication is DENIED in its entirety.

Moving Party to give NOTICE.



Case Number: ****6680    Hearing Date: December 26, 2019    Dept: SEC

CALDERON v. 5633 MAYWOOD, LLC

CASE NO.: ****6680

HEARING: 12/26/19

#5

TENTATIVE ORDER

Plaintiff/Cross-Defendant J. VLADIMIR CALDERON, individually, and as Trustee of the J. Vladimir Calderon Trust’s Motion for Summary Adjudication is CONTINUED to Thursday, January 9, 2020 at 1:30 p.m. in Dept. SE-C.

Moving Party to give notice.



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