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 LORI ANN FOURNIER, MARGARET MILLER BERNAL and PATRICK T. MEYERS. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Los Angeles, California
LORI ANN FOURNIER
MARGARET MILLER BERNAL
PATRICK T. MEYERS
J. VLADIMIR CALDERON AS TRUSTEE OF THE
5633 MAYWOOD LLC A CALIFORNIA LIMITED
J. VLADIMIR CALDERON INDIVIDUALLY AND
J. J. LITTLE CO. INC.
MASHIAN LAW GROUP
MASHIAN BAHMAN B.
KAZEMI KATAYOUN CATHY
MOORE WALTER WHITMAN
BUNNETT JOHN A. LAW OFFICES
BUNNETT JOHN ALLEN
7/23/2020: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION TO CONTINUE TRIAL
7/23/2020: Order - ORDER ORDER ON EX PARTE APPLICATION TO CONTINUE TRIAL
7/13/2020: Minute Order - MINUTE ORDER (COURT ORDER RE: ADVANCEMENT AND CONTINUANCE OF NON-JURY TRIAL...)
5/5/2020: Minute Order - MINUTE ORDER (COURT ORDER)
1/3/2020: Objection - OBJECTION PLAINTIFF'S OBJECTION TO DEFENDANT'S EVIDENTIARY OBJECTIONS RE SUMMARY JUDGMENT MOTION
1/9/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
12/20/2019: Notice of Change of Address or Other Contact Information
12/11/2019: Separate Statement - SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS RE MOTION FOR SUMMARY ADJUDICATION OF ISSUES FILED BY J. VLADIMIR CALDERON
12/3/2019: Minute Order - MINUTE ORDER (MANDATORY SETTLEMENT CONFERENCE (MSC))
10/11/2019: Declaration - DECLARATION PART 2 (PG. 339-666) DECLARATION OF J. VLADIMIR CALDERON IN SUPPORT OF PLAINTIFF J. VLADIMIR CALDERON, AS AN INDIVIDUAL, AND AS TRUSTEE OF THE J. VLADIMIR CALDERON TRUSTS M
10/11/2019: Separate Statement - SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION
10/11/2019: Declaration - DECLARATION OF BRYAN MASHIAN, ESQ. IN SUPPORT OF PLAINTIFF J. VLADIMIR CALDERON, AS AN INDIVIDUAL, AND AS TRUSTEE OF THE J. VLADIMIR CALDERON TRUSTS MOTION FOR SUMMARY ADJUDICATION
5/21/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR MINUTE ORDER (HEARING ON MOTION FOR JUDGMENT ON THE PLEADINGS) OF 05/21/2019
11/27/2017: Legacy Document - LEGACY DOCUMENT TYPE: Rtn of Service of Summons & Compl
4/18/2018: Minute Order - Minute order entered: 2018-04-18 00:00:00
12/21/2018: Civil Case Cover Sheet
11/13/2018: Memorandum of Points & Authorities - Memorandum of Points & Authorities in Opposition to Plaintiff and Cross-Defendant's Demurrer to 5633 Maywood, LLC's Cross-Complaint
11/20/2018: Reply - Reply to 5633 Maywood, LLC's Opposition Re: Demurrer to Cross Complaint
Hearing08/25/2021 at 09:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Non-Jury TrialRead MoreRead Less
Hearing07/22/2021 at 13:30 PM in Department C at 12720 Norwalk Blvd., Norwalk, CA 90650; Hearing on Motion for Leave Motion for Leave to File a Supplemental ComplaintRead MoreRead Less
Hearing07/08/2021 at 13:30 PM in Department C at 12720 Norwalk Blvd., Norwalk, CA 90650; Hearing on Motion for Summary JudgmentRead MoreRead Less
Docketat 09:30 AM in Department C; Hearing on Motion to Compel Discovery (not "Further Discovery") (Compliance With Deposition Subpoena For Personal Appearance of The Person Most Qualified to Testify) - Not Held - Continued - Court's MotionRead MoreRead Less
Docketat 2:30 PM in Department C; Hearing on Motion to Compel Discovery (not "Further Discovery") (Compliance With Deposition Subpoena For Personal Appearance of The Person Most Qualified to Testify) - Held - Taken under SubmissionRead MoreRead Less
DocketMinute Order ( (Hearing on Motion to Compel Discovery (not "Further Discovery...)); Filed by ClerkRead MoreRead Less
Docketat 2:15 PM in Department C; Court OrderRead MoreRead Less
DocketMinute Order ( (Court Order)); Filed by ClerkRead MoreRead Less
DocketReply (PLAINTIFF?S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 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); Filed by J. VLADIMIR CALDERON, as Trustee of the (Plaintiff)Read MoreRead Less
DocketOpposition (OF NONPARTY DEPONET TO PLAINTIFF'S MOTION TO COMPEL COMPLIANCE WITH SUBPOENA); Filed by J. J. Little Co., Inc. (Non-Party)Read MoreRead Less
DocketRtn of Service of Summons & Compl; Filed by J. VLADIMIR CALDERON, as Trustee of the (Plaintiff)Read MoreRead Less
DocketRtn of Service of Summons & Compl (BY PERSONAL SERVICE ON 11/03/17 ); Filed by Attorney for PlaintiffRead MoreRead Less
DocketNotice-Pending Action; Filed by J. VLADIMIR CALDERON, as Trustee of the (Plaintiff)Read MoreRead Less
DocketNotice-Pending Action; Filed by Attorney for PlaintiffRead MoreRead Less
DocketNotice-Case Management Conference; Filed by ClerkRead MoreRead Less
DocketSummons Filed; Filed by Attorney for PlaintiffRead MoreRead Less
DocketComplaint filed-Summons Issued; Filed by Attorney for PlaintiffRead MoreRead Less
DocketComplaint filed-Summons Issued; Filed by J. VLADIMIR CALDERON, as Trustee of the (Plaintiff)Read MoreRead Less
DocketSummons; Filed by J. VLADIMIR CALDERON, as Trustee of the (Plaintiff)Read MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
Case Number: VC066680 Hearing Date: April 8, 2021 Dept: C
CALDERON v. 5633 MAYWOOD, LLC
CASE NO.: VC066680
JUDGE: RAUL A. SAHAGUN
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: VC066680 Hearing Date: November 05, 2020 Dept: C
CALDERON v. 5633 MAYWOOD, LLC
CASE NO.: VC066680
JUDGE: JOHN A. TORRIBIO
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: VC066680 Hearing Date: January 09, 2020 Dept: SEC
CALDERON, as Trustee of the J. Vladimir Calderon Trust v. 5633 MAYWOOD, LLC, et al.
CASE NO.: VC066680
JUDGE: OLIVIA ROSALES
Plaintiff J. Vladimir Calderon’s motion for summary adjudication is DENIED in its entirety.
Moving Party to give NOTICE.
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
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: VC066680 Hearing Date: December 26, 2019 Dept: SEC
CALDERON v. 5633 MAYWOOD, LLC
CASE NO.: VC066680
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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