This case was last updated from Los Angeles County Superior Courts on 06/13/2019 at 09:53:18 (UTC).

PEDRO A ORTIZ VS PERFORMANCE FOOD GROUP INC ET AL

Case Summary

On 11/20/2017 PEDRO A ORTIZ filed a Personal Injury - Other Personal Injury lawsuit against PERFORMANCE FOOD GROUP INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Other.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4304

  • Filing Date:

    11/20/2017

  • Case Status:

    Other

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JON R. TAKASUGI

 

Party Details

Plaintiff and Petitioner

ORTIZ PEDRO A.

Defendants, Respondents and Cross Plaintiffs

PERFORMANCE FOOD GROUP INCORPORATION

DOES 1 TO 50

MAYA MOTOR CARRIERS INCORPORATION

Defendant, Respondent and Cross Defendant

MAYA MOTOR CARRIERS INCORPORATION

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

MARINOS DIONISIOS ESQ.

Defendant, Respondent and Cross Plaintiff Attorneys

HAIGHT BROWN & BONESTEEL LLP

DUBRAWSKI PETER ANDREW

 

Court Documents

Request for Dismissal

5/20/2019: Request for Dismissal

Minute Order

5/20/2019: Minute Order

Unknown

5/6/2019: Unknown

Minute Order

5/6/2019: Minute Order

Motion for Determination of Good Faith Settlement

3/14/2019: Motion for Determination of Good Faith Settlement

Proof of Personal Service

3/25/2019: Proof of Personal Service

Notice

4/8/2019: Notice

Minute Order

5/1/2019: Minute Order

Order

5/1/2019: Order

Notice of Ruling

5/2/2019: Notice of Ruling

Request for Dismissal

5/3/2019: Request for Dismissal

Notice

5/6/2019: Notice

Request for Dismissal

5/6/2019: Request for Dismissal

Unknown

9/27/2018: Unknown

CROSS-COMPLAINT OF PERFORMANCE FOOD GROUP, INC. FOR: (1) EXPRESS CONTRACTUAL INDEMNITY; (2) IMPLIED INDEMNITY; (3) CONTRIBUTION; (4) COMPARATIVE FAULT; AND (5) DECLARATORY RELIEF

5/23/2018: CROSS-COMPLAINT OF PERFORMANCE FOOD GROUP, INC. FOR: (1) EXPRESS CONTRACTUAL INDEMNITY; (2) IMPLIED INDEMNITY; (3) CONTRIBUTION; (4) COMPARATIVE FAULT; AND (5) DECLARATORY RELIEF

SUMMONS

5/23/2018: SUMMONS

RESPONSE OF DEFENDANT, PERFORMANCE FOOD GROUP, INC. TO COMPLAINT FOR DAMAGES

5/23/2018: RESPONSE OF DEFENDANT, PERFORMANCE FOOD GROUP, INC. TO COMPLAINT FOR DAMAGES

STIPULATION TO STRIKE EXEMPLARY DAMAGES ALLEGATIONS AND PRAYER FROM PLAINTIFF'S COMPLAINT AS TO DEFENDANT, PERFORMANCE FOOD GROUP, INC., ONLY; (PROPOSED) ORDER

6/5/2018: STIPULATION TO STRIKE EXEMPLARY DAMAGES ALLEGATIONS AND PRAYER FROM PLAINTIFF'S COMPLAINT AS TO DEFENDANT, PERFORMANCE FOOD GROUP, INC., ONLY; (PROPOSED) ORDER

10 More Documents Available

 

Docket Entries

  • 05/20/2019
  • Docketat 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Order to Show Cause Re: Dismissal (of Cross-Complaint filed by Performance Food Group) - Held - Continued

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  • 05/20/2019
  • Docketat 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Vacated by Court

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  • 05/20/2019
  • Docketat 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Jury Trial - Not Held - Vacated by Court

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  • 05/20/2019
  • Docketat 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Order to Show Cause Re: Dismissal (of Defendant Performance Food Group) - Held

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  • 05/20/2019
  • DocketRequest for Dismissal; Filed by PERFORMANCE FOOD GROUP, INCORPORATION (Cross-Complainant)

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  • 05/20/2019
  • DocketMinute Order ( (Jury Trial; Order to Show Cause Re: Dismissal of Defendant Pe...)); Filed by Clerk

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  • 05/06/2019
  • Docketat 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Continued - Court's Motion

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  • 05/06/2019
  • DocketCertificate of Mailing for (Minute Order (Final Status Conference) of 05/06/2019); Filed by Clerk

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  • 05/06/2019
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 05/06/2019
  • DocketNotice (Notice of OSC re Dismissal); Filed by PERFORMANCE FOOD GROUP, INCORPORATION (Cross-Complainant); PERFORMANCE FOOD GROUP, INCORPORATION (Defendant)

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16 More Docket Entries
  • 05/23/2018
  • DocketCross-Complaint; Filed by PERFORMANCE FOOD GROUP, INCORPORATION (Defendant)

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  • 05/23/2018
  • DocketSummons Issued; Filed by PERFORMANCE FOOD GROUP, INCORPORATION (Defendant)

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  • 05/23/2018
  • DocketCROSS-COMPLAINT OF PERFORMANCE FOOD GROUP, INC. FOR: (1) EXPRESS CONTRACTUAL INDEMNITY; (2) IMPLIED INDEMNITY; (3) CONTRIBUTION; (4) COMPARATIVE FAULT; AND (5) DECLARATORY RELIEF

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  • 05/23/2018
  • DocketRESPONSE OF DEFENDANT, PERFORMANCE FOOD GROUP, INC. TO COMPLAINT FOR DAMAGES

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  • 05/23/2018
  • DocketCross-Complaint (of Performance Food Group, Inc. for: (1) Express Contractual Indemnity; (2) Implied Indemnity; (3) Contribution; (4) Comparative Fault; and (5) Declaratory Relief); Filed by PERFORMANCE FOOD GROUP, INCORPORATION (Cross-Complainant)

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  • 05/23/2018
  • DocketSUMMONS

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  • 11/20/2017
  • DocketCOMPLAINT FOR DAMAGES 1) NEGLIGENCE ;ETC

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  • 11/20/2017
  • DocketSUMMONS

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  • 11/20/2017
  • DocketORDER ON COURT FEE WAIVER

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  • 11/20/2017
  • DocketComplaint; Filed by PEDRO A. ORTIZ (Plaintiff)

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Tentative Rulings

Case Number: ****4304    Hearing Date: August 17, 2020    Dept: 32

SPEEDY FUEL, INC.,

Plaintiff,

v.

GILBARCO, INC, et. al.

Defendants.

Case No.: BC648304

Hearing Date: August 17, 2020

[TENTATIVE] order RE:

(1) speedy’s motion to alter trial plan and lift discovery stay as to bana

(2) speedy’s motion to amend responses to gilbarco’s requests for admission

(3) gilarco’s motion to compel FH’s further responses to form interrogatories

Background

This action arises out of failed credit card and debit card transactions at two fuel service stations operated by Plaintiff Speedy Fuel, Inc. (Speedy). The defendants in this action include (1) the software developer for the transaction systems, Gilbarco, Inc. (Gilbarco), (2) several financial institutions including Bank of America, N.A. (BANA), JPMorgan Chase Bank, N.A. (Chase), Citibank, N.A. (Citibank), Wells Fargo Bank, N.A. (Wells Fargo), U.S. Bank, N.A. (US Bank), East West Bank (East West), and San Diego County Credit Union (SDCCU) (collectively, Banks), (3) businesses that process credit and debit card transactions including Banc of America Merchant Services, LLC (BAMS), Bank of America Corporation (BAC), First Data Corporation (First Data), and Interlink Network Inc. (Interlink) (collectively, Processor Defendants), and (4) numerous customers that bought fuel from Speedy.

The operative pleading is the First Amended Complaint (FAC) filed on August 30, 2017. The FAC asserts causes of action for (1) breach of contract against all Defendants except Gilbarco and Interlink, (2) goods sold and delivered against all Defendants except Gilbarco and Interlink, (3-20) fraud against various Defendant Customers, (21) breach of implied warranty of fitness for a particular purpose against Gilbarco, (22) inducing breach of contract against Gilbarco, (23) negligent interference with prospective economic relations against Gilbarco, (24) inducing breach of contract against BAMS, BAC, First Data and Interlink, (25) intentional interference with contractual relations against BAMS, BAC, First Data and Interlink, (26) negligent misrepresentation against BANA, BAMS, BAC, and First Data, and (27) breach of fiduciary duty against BANA. BANA’s demurrer to Speedy’s twenty-seventh cause of action was sustained without leave to amend.

Gilbarco has commenced a cross-action against FH International Service Station Maintenance, Inc. (FH) and L&S Maintenance (L&S). Gilbarco’s operative pleading in the cross-action is the First Amended Cross-Complaint (FAXC) filed on December 12, 2019. The FAXC asserts causes of action for (1) express indemnity against FH, (2) equitable indemnity and contribution against FH and L&S, and (3) declaratory relief against FH and L&S.

Motion to Alter Trial Plan and Lift Discovery Stay

Speedy moves for a court order modifying the current trial plan and partially lifting the discovery stay. Specifically, Speedy moves for a court order (1) including BANA as a trial defendant in the third phase of trial to defend against Speedy’s twenty-sixth cause of action and (2) lifting the discovery stay as to BANA with respect to issues raised in that cause of action. Speedy states that it does not seek to advance the trial or open discovery on other causes of action asserted against BANA.

In its twenty-sixth cause of action for negligent misrepresentation, Speedy alleges that Tayo Okusanya (Okusanya) is a BANA officer and BAMS agent. (FAC ¶¶ 280-81.) Speedy alleges that Okusanya managed Speedy’s business relationship with BANA and that Speedy developed “extreme trust and confidence” in Okusanya over their many years of dealing. (FAC ¶ 282.) Speedy alleges that Speedy informed Okusanya of its dissatisfaction with the merchant services provided to Speedy by Chase and, in response, Okusanya commenced efforts to convince Speedy to switch to BANA for those services. (FAC ¶ 283.) Okusanya allegedly represented that, inter alia, BANA would process all of Speedy’s debit and credit card transactions and BANA would provide Speedy with a full accounting report of all transactions processed by BANA on a periodic basis. (FAC ¶ 285.) Speedy alleges that it signed paperwork presented by Okusanya and Mariam Alajajyan (Alajajyan), a BANA officer, based on these representations. (FAC ¶ 286.) Speedy alleges that these representations were false because, inter alia, the contracts signed by Speedy were with BAMS, not BANA, and did not obligate BANA to provide any of the processing or accounting services mentioned by Okusanya. (FAC ¶ 287.) Speedy further alleges that Okusanya and Alajajyan negligently failed to disclose these facts to Speedy. (FAC ¶ 289.) Speedy alleges that it would not have signed the contracts had these facts been disclosed. (FAC ¶¶ 292-93.)

Speedy’s primary justification for modification of the trial plan is to avoid inconsistent jury verdicts. (Mot. at 8.) “If two separate trials are ordered, there is a substantial risk that the jury in the first trial against BAMS would find that the misrepresentations were made by Mr. Okusanya [i.e., a BANA employee] and BAMS is not responsible. BAMS will undoubtedly seek this factual finding. However, the jury in the second trial against BANA may well find that the misrepresentations were made by Ms. Alajajyan [i.e., a BAMS employee according to BANA] and, as a result, BANA is not liable. BANA will undoubtedly seek this factual finding. The result is a major inconsistency. While it would be clear from looking at both trials that material misrepresentations were made to Speedy and it should prevail, the inconsistent jury verdicts would reach an unjust result.” (Reply at 3.)

Speedy claims that this court order is also justified for purposes of judicial efficiency. “[I]t would be highly inefficient for both this Court and the parties to essentially try the same issues twice in two different trials.” (Mot. at 8.)

Speedy also claims that altering the trial plan would not cause BANA to suffer prejudice. Speedy states that discovery on phase three issues against the Processor Defendants, like BAMS, is still in its “embryonic stage.” Speedy notes that it has taken Okusanya’s deposition but that efforts to take the depositions of BAMS, First Data, and Interlink have been stalled based on objections. Speedy also points out that BANA has sat in on all or most the relevant depositions that have taken place. Speedy maintains that BANA has more than sufficient time to conduct any discovery it believes will be necessary and to make any necessary motions.

In opposition, BANA contends that the current trial plan imposes no actual discovery limitations upon Speedy. BANA notes that Speedy has already deposed Okusanya and that, consistent with the court order permitting Speedy to take limited discovery from BANA in connection with Speedy’s claims against BAMS, BANA has responded to two sets of document requests from Speedy and produced over 1,400 pages of documents. (Stoll Decl. ¶¶ 10-11.)

BANA contends that Speedy’s inconsistent jury verdict point misses the mark. “[T]he factfinder in each trial will need to determine some of the same issues — for example, whether Plaintiff knew or should have known about the unpaid transactions, whether Plaintiff received payment for the subject transactions, and the reasons that the funds for certain transactions were not deposited into Plaintiff’s account, among others.” (Opp. at 7.) BANA stresses that this overlap is warranted because of the complexity of this multi-party litigation. BANA also notes that this phased-trial approach could obviate the need for a trial against BANA for Speedy’s negligent misrepresentation claim because the factfinder could find that no misrepresentations were made at all in the trial against the processor defendants.

Finally, BANA maintains that altering the trial plan will cause BANA to suffer prejudice. BANA states that such a modification would require BANA to prepare witnesses and counsel for two separate trials on Speedy’s claims and, in total, would force BANA to prepare for three trials because of the parties’ cross-claims. BANA also claims that this modification would deny BANA a full and fair opportunity to conduct relevant discovery. BANA notes that it has not had an opportunity to propound its own discovery on Speedy, other defendants, or third parties relevant to Speedy’s claims and BANA’s defenses.

The Court finds BANA’s position more persuasive.

“The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action.” (CCP ; 1048(b).) “[T]he court may make such orders as may appear just to prevent any [joined defendants] from being embarrassed, delayed, or put to undue expense, and may order separate trials or make such other order as the interests of justice may require.” (CCP ; 379.5.) Under these statutes, trial courts have broad discretion to order separate trials as to certain defendants. (See Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 504.)

In this motion, Speedy has underscored the fact that the trial plan is not perfect. Ideally, Speedy could try its negligent misrepresentation claim against BAMS, First Data, and BANA at the same time in order to obtain a jury verdict which completely resolves the claim. Notwithstanding this, the Court concludes that the benefits of sticking with the trial plan outweigh the costs of deviating from it. First, sticking to the current trial plan saves BANA from unnecessary and undue expense. If the trial plan is modified as Speedy requests, BANA would have to participate in, at least, two trials involving duplicative presentations of evidence and witnesses. BANA should not have to suffer this undue expense simply because Speedy brought several different types of claims against numerous defendants. Second, sticking to the current trial plan saves BANA from suffering prejudice. As BANA notes, it has not had the “opportunity to seek information, documents, or testimony of its own from Plaintiff, other defendants, or any third parties who may be relevant to [Speedy’s] claims and BANA’s defenses.” (Opp. at 9.) More importantly, BANA will suffer prejudice because it agreed to stipulate to Speedy’s request to add BANA as a defendant to Speedy’s negligent misrepresentation claim based on Speedy’s representation that “BofA will not be one of the trial defendants in [BAMS’] trial. Speedy agrees that this Court may bifurcate claims asserted in a single cause of action.” (Stoll Decl. ¶ 9.) Had Speedy not made this representation, BANA could have engaged in greater efforts to preclude Speedy from making this amendment to its negligent misrepresentation claim. Third, sticking to the trial plan promotes judicial efficiency. As BANA notes, the jury could find that no misrepresentations were made to Speedy at all, and this finding would collaterally estop Speedy from asserting a negligent misrepresentation claim against BANA. Moreover, including BANA as a trial defendant in the third phase might overly complicate the trial by presenting issues apart from those exclusively involving the processor defendants.

For these reasons, Speedy’s motion to alter the trial plan is denied. Speedy may continue to propound discovery on BANA only to the extent that the discovery relates to Speedy’s causes of action against BAMS.

Motion to Amend RFA Responses[1]

Speedy moves for leave to amend its responses to Gilbarco’s requests for admission (RFAs). Specifically, Speedy seeks to amend its responses to RFA Nos. 1-3, 5-6, 8, 15, 17, 19-20, 23-31, 34, 37, 41-42, and 45. Gilbarco opposes Speedy’s motion with respect to RFA Nos. 1, 2, 8, 15, 17, 20, 23-25, 29-31, 37, and 42.

“A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties.” (CCP ; 2033.300(a).) “The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits.” (CCP ; 2033.300(b).)

“The court may impose conditions on the granting of the motion that are just, including … (1) An order that the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission. [¶] (2) An order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission.” (CCP ; 2033.300(c).)

A. RFA Nos. 1, 2, 23 and 24

RFA No. 1: “Admit that you obtained the Gilbarco Passport system which you used at Speedy 1 from September 2014 to August 2015, from FH on or about September 2014.” RFA No. 2: “Admit that FH sold you the Gilbarco Passport system which you used at Speedy 1 from September 2014 to August 2015, on or about September 2014.”

In its original response to RFA No. 1, Speedy admitted that “it obtained certain equipment and software commonly called ‘Passport’ which was continuously in use from early September 2014 through August 2015 and thereafter at [Speedy 1] directly from Frank Contreras and [FH].” In its original response to RFA No. 2, Speedy admitted that “FH directly contracted to sell to Speedy [the Passport] which was continuously in use … at its station located at Speedy 1.”

In its amended responses to RFA Nos. 1-2, Speedy denies the requests.

RFA No. 23: “Admit that you obtained the Gilbarco Passport system which you used at Speedy 2 from September 2014 to August 2015 from FH on or about September 2014.” RFA No. 24: “Admit that FH sold you the Gilbarco Passport system which you used at Speedy 2 from September 2014 to August 2015, on or about September 2014.”

In its original response to RFA No. 23, Speedy admitted that “it obtained certain equipment and software commonly called ‘Passport’ which was continuously in use from early September 2014 through August 2015 and thereafter at [Speedy 2] directly from FH.” In its original response to RFA No. 24, Speedy admitted that “FH directly contracted to sell to Speedy [the Passport] which was continuously in use … at its station located at Speedy 2.”

In its amended responses to RFA Nos. 23-24, Speedy denies these requests.

Termendjian, Speedy’s President and CEO, avers that these amendments are necessary because (1) the Passport System server used at Speedy 1 during the relevant time was purchased used directly from a third party and not from Contreras and (2) the Passport System served used at Speedy 2 during the relevant time was purchased new in 2013 from Source, Gilbarco’s authorized distributor, and not from Contreras. (Termendjian Decl. ¶ 5.)

Termendjian indicates that Speedy’s prior admissions were the result of his mistake, inadvertence, or excusable neglect. Termendjian, who served as Speedy’s verifying agent (CCP ; 2033.240(b)), explains that the original responses had been primarily based upon his own personal knowledge because (1) the manager who Termendjian tasked with overseeing the installation of the Passport Systems at Speedy 1 and Speedy 2 passed away, (2) the Department of Homeland Security seized Speedy’s paper business records and office computers and returned them in disarray making the search for relevant documents difficult, and (3) Speedy’s office accountant, whom Termendjian relied upon to manage the business, left his employ and was not available to provide Termendjian with information. (Termendjian Decl. ¶ 4.) Termendjian states that he learned the original responses were in error “[b]ased upon [his] refreshed recollection and the discovery taken in this action.” (Termendjian Decl. ¶¶ 4-5.) Since the responses were served, Speedy has deposed the PMKs of Gilbarco, Source, and FH and received hundreds of pages of documents from those same companies. (Rees Decl. ¶ 6.) This discovery has included invoices for the Passport systems and software for the Passport systems. (See RJN Ex. 2, Termendjian MSJ Decl. ¶ 14, Ex. 1.)

The Court accepts Speedy’s showing of mistake, inadvertence, and excusable neglect.

Gilbarco contends that Speedy has not shown that its original admissions were the result of mistake, inadvertence, or excusable neglect because Termendjian’s declaration is not credible. Gilbarco contends that Termendjian’s averments are inconsistent with his deposition testimony in which he testified that he was not present when either of the Passport systems were installed and did not know whom Speedy purchased the Speedy 2 Passport system from. The Court disagrees. While this deposition testimony certainly raises doubts about Termendjian’s credibility with respect to these averments, this deposition testimony does not directly contradict Termendjian because he avers that these amended responses are based upon his “refreshed recollection and discovery taken in this action.” Doubts in assessing Termendjian’s credibility must be resolved in Speedy’s favor. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420.) Moreover, Gilbarco places too much emphasis on Termendjian’s personal knowledge in this motion. Because discovery serves, among other things, to help the parties “ascertain[] the truth” (McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 95), it must follow that information gleaned through discovery can satisfy a party’s showing that its original responses were the result of mistake, inadvertence, or excusable neglect. This holds true regardless of whether the party has personal knowledge of the facts underlying that information.

Gilbarco also contends that invoices produced by Source contradict Termendjian’s averment that Speedy purchased the Passport System at Speedy 2 from that company. The Court again disagrees. While it is true that the invoices from Source do not show that Speedy purchased the Passport systems from that company (RJN Ex. 2, Termendjian MSJ Decl. Ex. 1), the invoices do reflect that Speedy purchased other Passport systems from Source and software for the Passport system in question from Source. Because of Speedy’s record-keeping problems mentioned ante, a reasonable inference can be drawn that Speedy purchased the Passport systems from Source.

Gilbarco concedes that Termendjian’s deposition testimony is consistent with his declaration to the extent that Termendjian has testified in both instances that the Passport system at Speedy 1 was purchased from a third party gasoline station. Gilbarco contends that Plaintiff’s prior admission about the level of Contreras’s / FH’s involvement should stand because Termendjian testified extensively about the same. This argument has no merit. Speedy admitted in its original responses that it purchased the Passport systems at issue from FH. Speedy no longer believes this is true and has substantiated a mistake of fact. As such, Speedy’s original admissions should no longer stand.

B. RFA No. 8

RFA No. 8: “Admit that you do not know from where FH obtained the used Gilbarco Passport system which you used at Speedy 1 from September 2014 to August 2015.” In its original response, Speedy admitted that “it does not know where FH obtained the equipment and software which it installed at Speedy 1.” In its amended response, Speedy denies this request.

Gilbarco argues that there is no explanation for why Termendjian could not recall where FH obtained the used Passport installed at Speedy 1 but could recall this information at deposition and now in his declaration. There is an explanation. Termendjian states that his memory was refreshed by discovery in this case, including Speedy’s records. Termendjian’s descriptive testimony about purchasing the Passport from another gasoline station supports the conclusion that Termendjian is basing this testimony on personal knowledge. (See DeHart Decl. Ex. B, pp. 95-98.)

C. RFA Nos. 15, 17, 37

RFA No. 15: “Admit that on or about August 2015, you contacted FH to request that FH return to Speedy 1 to evaluate the used/rebuilt Gilbarco Passport system and software it had installed in September 2014, after you realized a loss of revenue.” In its original response, Speedy admitted that “on or about July 7, 2015 it contacted FH because it was not being paid on certain debit card transactions processed through the equipment and software which FH had installed at Speedy 1.” In its amended response, Speedy “admits on or about August 24, 2015 it contacted FH to reprogram the software Version 10.00.23.01D Concord and that on that date he removed the $.50 Debit Sales Fee” and denies the remainder of this request.

RFA No. 17: “Admit that on or about August 2015, FH reprogrammed the used Gilbarco Passport system at Speedy 1.” In its original response, Speedy admitted that “in July 2015, FH solved the problem which had resulted in certain debit card transaction not being paid” and asserted a lack of information to answer the balance of the request. In its amended response, Speedy “admits on or about August 24, 2015, FH removed the $.50 Debit Sales Fee from software Version 10.00.23.01D Concord which had resulted in certain debit card transaction not being paid” and asserted a lack of information to answer the balance of the request.

RFA No. 37: “Admit that on or about August 2015, you contacted FH to request that FH return to Speedy 2 to evaluate the used/rebuilt Gilbarco Passport system and software it had installed in September 2014, after you realized a loss of revenue.” In its original response, Speedy admitted that “in July 2015 it contacted FH because it was not being paid on certain debit card transactions processed through the equipment and software which FH installed at Speedy 2.” In its amended response, Speedy “admits that on or about August 24, 2015 it contacted FH to reprogram the software Version 10.00.23.01D Concord and that on that date he removed the $.50 Debit Sales Fee” and denies remainder of this request.

Gilbarco does not object to these amended responses in their entirety. Gilbarco objects only to Plaintiff’s insertion of “Version 10.00.23.01D Concord” into these responses. Gilbarco contends that Termendjian lacks person knowledge to support an assertion to this effect. The Court finds this objection to be without merit. The Court is not evaluating the merits of Speedy’s responses but whether it should grant leave to amend. In any event, Gilbarco’s technical records and Source invoices suggest that this Concord software may have been installed on these Passport systems in August 2015. The validity of these amended responses do not rest exclusively on Termendjian’s personal knowledge. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 8:1023 (noting that “information and belief” is often “the only realistic way to verify answers on behalf of” a corporation because a corporation’s officer or agent is required to sign the response under oath on behalf of the entire corporation).)

D. RFA Nos. 20, 42

RFA No. 20: “Admit that after FH’s visit in August 2015, the used/rebuilt Gilbarco Passport system at Speedy 1 has worked well and without incident.” RFA No. 42: “Admit that after FH’s visit in August 2015, the used/rebuilt Gilbarco Passport system at Speedy 2 worked well and without incident until you replaced it.”

In its original responses, Speedy admitted that “in July 2015 FH corrected the problem which had resulted in Speedy not being paid on certain debit card transactions processed through the equipment and software which FH installed at [Speedy 1 and Speedy 2] and that thereafter the equipment and software worked well and without any similar problem that Speedy is aware.”

In its amended responses to these requests, Speedy “admits that after August 24, 2015 Speedy is not aware of any debit card transactions being rejected because the Passport System sought payment for more than had been approved and otherwise, Speedy denies this request.”

Gilbarco contends that Speedy has presented no justification for changing these responses. The Court finds the justification to be plain: Speedy overstated its position that the Passport systems worked well and without incident after FH’s visit in August 2015. Speedy is correcting that position. The Court will allow this amended response to correct this minor discrepancy.

E. RFA No. 25

RFA No. 25: “Admit that the Gilbarco Passport system which you used at Speedy 2 from September 2014 to August 2015, was used rebuilt/refurbished equipment.” In its original response, Speedy asserted a lack of sufficient knowledge to respond. In its amended response, Speedy admits “that most of the Passport System hardware used at Speedy 1 from September 2014 to August 2015 was used equipment,” asserts a lack of sufficient knowledge to answer whether the equipment was rebuilt or refurbished, and denies the remainder.

Gilbarco contends that leave to amend this request should be denied because the proposed amended response does not respond to the request. The amended response refers to Speedy 1, not Speedy 2. This argument is unavailing. The Court is evaluating whether to grant Plaintiff leave to amend, not whether further responses are required. Moreover, Speedy is not withdrawing or amending an admission in this instance so the requirements of CCP section 2033.300 do not apply.

F. RFA Nos. 29-31

RFA No. 29: “Admit that FH installed the used/rebuilt Gilbarco Passport system which you used at Speedy 2 from September 2014 to August 2015, on or about September 2014.” RFA No. 30: “Admit that you do not know from where FH obtained the used Gilbarco Passport system which you used at Speedy 2 from September 2014 to August 2015.” RFA No. 31: “Admit that you do not know exactly what FH did to the used/rebuilt Gilbarco Passport system which you used at Speedy 2 from September 2014 to August 2015, in rebuilding or refurbishing it prior to providing it to you.”

In its original response to RFA No. 29, Speedy admitted “that the equipment and software was installed by FH but otherwise denies this request.” In its original response to RFA No. 30, Speedy admitted “that it does not know where FH obtained the equipment and software which it installed at Speedy 2” and denied the remainder of the request. In its original response to RFA No. 31, Speedy admitted “that it does not know ‘exactly’ what FH did to install the equipment and software but otherwise denies this request.”

In its amended responses, Speedy denies these requests. Termendjian explains that Leo Smith of L&S installed the Passport system and software at Speedy 2. (Termendjian Decl. ¶ 5E.)

Gilbarco contends that Speedy has demonstrated a mistake because Termendjian’s averment about Leo Smith is not credible. Gilbarco cites Termendjian’s deposition testimony which reflects that he was not involved in the Passport’s installation at Speedy 2. In pointing out Termendjian’s lack of personal knowledge, Gilbarco is underscoring the point that Speedy should not have admitted that FH installed the Passport system at Speedy 2. This validates the need for Speedy to amend its mistaken response to RFA No. 29. As noted ante, there is documentary evidence in the form of service records and Source invoices which make plausible Speedy’s amended responses to RFA Nos. 30-31. The Court will allow these amended responses.

G. RFA No. 34

RFA No. 34: “Admit that you do not know how FH reprogrammed the used/rebuilt Gilbarco Passport system which you used at Speedy 2 from September 2014 to August 2015, when FH first installed this equipment at Speedy 2 in September 2014.” In its original and amended responses, Speedy denies this request. (Rees Decl. Exs. A-B.)

Gilbarco argues that leave to amend this request should be denied because it is unclear how Plaintiff is proposing to amend this response. The Court agrees. Speedy’s redline copy of its amended responses shows that no changes were made to this response. (Rees Decl. Ex. B.)

H. RFA Nos. 3, 5-6, 19, 26-28, 34, 41, and 45

Gilbarco has not opposed Speedy’s request to amend RFA Nos. 3, 5-6, 19, 26-28, 34, 41, and 45. Accordingly, Speedy’s motion with respect to these RFAs is well-taken.

Motion to Compel FH’s Further Discovery Responses

Gilbarco moves to compel FH to provide further responses to Gilbarco’s Form Interrogatories (FI) Nos. 12.1, 15.1, and 17.1 and RFA Nos. 13 and 14. FH has not opposed.

A. Form Interrogatories

FI No. 12.1: “State the name, ADDRESS, and telephone number of each individual: (a) who witnessed the INCIDENT or the events occurring immediately before or after the INCIDENT; (b) who made any statement at the scene of the INCIDENT; (c) who heard any statements made about the INCIDENT by any individual at the scene; and (d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034).” FH responded: “(a)-(d) Koko, Ivan and Karo of Speedy fuel and Frank Contreras.”

FH’s response is incomplete and therefore insufficient. FH has not provided the addresses and telephone numbers of each individual specified in its response. A further response is required.

FI No. 15.1: “Identify each denial of a material allegation and each special or affirmative defense in your pleadings and for each: (a) state all facts upon which you base the denial or special or affirmative defense; (b) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (c) identify all DOCUMENTS and other tangible things that support your denial or special or affirmative defense, and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.” FH responded: “To be provided upon completion of all discovery.”

FH’s response is not code-compliant. The Civil Discovery Act allows the responding party to provide one of three responses: (1) an answer containing the information sought to be discovered, (2) an exercise of the party’s option to produce writings, and (3) an objection to the particular interrogatory. (CCP ; 2030.210(a).) FH’s response does not fall into any of these three categories. The Civil Discovery Act contemplates that the responding party serve amended responses if subsequent discovery reveals new information. (CCP ; 2030.310(a).) A further response is required.

FI No. 17.1: “Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: (a) state the number of the request; (b) state all facts upon which you base your response; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who

have knowledge of those facts; and (d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.”

FH responded:

“(a) All of the Request for Admission referencing a September 14, 2014, date are

denied because there was no activity by the Answering Corporation at Speedy 1 or Speedy 2 at such time.

(b) No. 8 (denied-did activation), No. 9 (denied-was properly commissioned), No. 11 (denied-installed latest system), No. 12 (denied for lack of knowledge), No. 13 (denied-don’t know if new or used), No. 14 (denied-was only one day old), No. 15 (denied-did not improperly program), No. 16 (denied-don’t know if there was a warranty), Nos 18-31 (denied-did not install equipment or software at Speedy 2), No. 32 (denied-id not install a used Passport POS system at Speedy 1. Installed new software in June, 2014), No. 33 (denied-made no installation at Speedy 2), No. 34 (denies-Not used software), No. 35. (denied-not out of date software), No. 36 and 37 (denied-did not install software at Speedy 2), No. 43 and 44 (denied-did not sell equipment), No. 45 (denied-did not install used software at Speedy 1), No. 46 (denied-did not install software at Speedy 2), No. 47 (denied-software was not out of date), No. 48 (denied-did not install software at Speedy 2), No. 49 (denied—did not sell any system for Speedy 1), No. 50 (denied-did not sell an system for Speedy 2).

(c) Fran Contreras, Ivan and Karo of Speedy Fuel

(d) See Exhibits attached to Responses to Form and Special Interrogatories and

Responses to Request For Production.”

FH’s response is incomplete. Part (a) must identify the number of each request for which an unqualified admission has not been given. FH has not provided any request numbers. Part (c) does not provide address or telephone information. A further response is required.

B. Requests for Admission

RFA No. 13: “Admit that the software that YOU installed on the GILBARCO Passport POS equipment that YOU installed at Speedy 1 in or around September 2014 was used.” FH responded: “Denied. Don’t know if new or used. Deny September date.”

RFA No. 34: “Admit that YOU did not inform GILBARCO that YOU installed used software on a used Passport POS system at Speedy 1.” FH responded: “Denied. Not used software — was new.”

Gilbarco correctly asserts that these RFA responses are contradictory. FH claims in response to RFA No. 13 that it did not know if the software was used or new and claims in response to RFA No. 34 that the software was new. Nonetheless, the Court does not believe that further responses are required because a contradictory answer is not an “evasive or incomplete” one. (CCP ; 2033.290(a)(1).)

Gilbarco requests monetary sanctions of $3,360. (Rothbaler Decl. ¶ 8.) Gilbarco’s request for monetary sanctions is denied because Gilbarco failed to make this request in its notice of motion. (CCP ; 2023.040.)

Conclusion

Speedy’s motion to alter the trial plan and lift the discovery stay is denied.

Speedy’s motion to amend its RFA responses is granted in large part. Speedy may amend all of the RFA responses in question with the exception of RFA No. 34. Gilbarco’s request to take the further deposition of Termendjian regarding his amended responses and his most recent declaration at Speedy’s expense is granted. (CCP ; 20333.300(c).)

Gilbarco’s motion to compel FH’s further responses is granted in part. FH must serve further responses to Gilbarco’s Form Interrogatories Nos. 12.1, 15.1, and 17.1 within 30 days’ notice of this court order. Gilbarco’s request for monetary sanctions is denied.


[1] Gilbarco’s requests for judicial notice are granted. (Evid. Code ; 452(d).) Gilbarco’s objections to the Termendjian Declaration are overruled. Termendjian has justified discrepancies between his present declaration and his deposition testimony by averring that his present declaration is based on a refreshed recollection and discovery taken in this case. The latter is probative because new information gleaned in discovery can help demonstrate mistake, inadvertence, or excusable neglect.



Case Number: ****4304    Hearing Date: January 10, 2020    Dept: 32

SPEEDY FUEL, INC.,

Plaintiff,

v.

GILBARCO, INC, et. al.

Defendants.

Case No.: BC648304

Hearing Date: January 10, 2020

[TENTATIVE] order RE:

motion to set aside default judgment against rey a. alvarado

BACKGROUND

This action arises out of failed credit card and debit card transaction systems at two fuel service stations operated by Plaintiff Speedy Fuel, Inc. (“Plaintiff”). The defendants in this action include (1) the software developer for the transaction systems Gilbarco, Inc. (“Gilbarco”), (2) several banking institutions including Bank of America, N.A. (“BANA”), JPMorgan Chase Bank, N.A. (“Chase”), Citibank, N.A. (“Citibank”), Wells Fargo Bank, N.A. (“Wells Fargo”), U.S. Bank, N.A. (“US Bank”), East West Bank (“East West”), and San Diego County Credit Union (“SDCCU”) (collectively, “Banks”), (3) businesses that process credit and debit card transactions including Banc of America Merchant Services, LLC (“BAMS”), Bank of America Corporation (“BAC”), First Data Corporation (“First Data”), and Interlink Network Inc. (“Interlink”) (collectively, “Processor Defendants”), and (4) numerous customers that bought fuel from Plaintiff.

The operative pleading is the First Amended Complaint (“FAC”) filed on August 30, 2017. The FAC asserts causes of action for (1) breach of contract against all Defendants except Gilbarco and Interlink, (2) goods sold and delivered against all Defendants except Gilbarco and Interlink, (3-20) fraud against various Defendant Customers, (21) breach of implied warranty of fitness for a particular purpose against Gilbarco, (22) inducing breach of contract against Gilbarco, (23) negligent interference with prospective economic relations against Gilbarco, (24) inducing breach of contract against BAMS, BAC, First Data and Interlink, (25) intentional interference with contractual relations against BAMS, BAC, First Data and Interlink, (26) negligent misrepresentation against BAMS, BAC, and First Data, and (27) breach of fiduciary duty against BANA. BANA’s demurrer to Plaintiff’s twenty-seventh cause of action was sustained without leave to amend.

On September 6, 2018, a registered process server sub-served process on Rey A. Alvarado (“Alvarado”) by leaving the documents with Jose Doe, a co-occupant of Alvarado’s home. (Martin Decl. Ex. A.) On March 12, 2019, default was entered against Alvarado. (Martin Decl. Ex. B.) On August 22, 2019, default judgment was entered against Alvarado in the amount of $13,222.64, plus interest.

DISCUSSION

Alvarado moves to set aside the default judgment entered against him in this case pursuant to (1) CCP section 473(b), (2) CCP section 473.5, (3) CCP section 473(d), and (4) the Court’s inherent equity power.

In support, Alvarado declares that he was not personally served in this case. (Alvarado Decl. ¶ 2.) Alvarado states that he received a notice in the mail at his home informing him that he lost this case. (Alvarado Decl. ¶ 4.) Alvarado states that he visited the courthouse and learned that a default had been entered against him. (Alvarado Decl. ¶ 8.) Alvarado states that his excuse for not filing an answer is that he did not know that he needed to do so in writing. (Alvarado Decl. ¶ 9.)

CCP section 473(b) states in pertinent part that a court may “relieve a party … from a judgment … taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” “To determine whether the mistake or neglect was excusable, ‘... the court inquires whether “a reasonably prudent person under the same or similar circumstances” might have made the same error....’ ” (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1399.) “[M]ere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-85.)

Alvarado’s reliance on CCP section 473(b) is unavailing. Failing to answer the FAC based on a misunderstanding that the answer needs to be in writing is inexcusable. A reasonably prudent person would not make this mistake because, inter alia, the Summons expressly states: “You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff.” (Emphasis added.)

CCP section 473.5 states in pertinent part that “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.” “Actual notice” for purposes of this statue means “genuine knowledge.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 547.) A motion under this statute must “be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect.” (CCP ; 473.5(b).)

Alvarado’s reliance on CCP section 473.5 is unavailing because he has not submitted a declaration attesting that he lacked actual notice of this action or attesting that this lack of notice was not caused by his avoidance of service or inexcusable neglect. Indeed, Alvarado’s excuse for not answering the FAC — that he did not know that he needed to respond in writing — indicates that he did have genuine knowledge of this action, just not a correct understanding as to how to respond.

CCP section 473(d) allows a court to “set aside any void judgment or order.” Under CCP section 473(d), a court may set aside a default judgment which is valid on its face but void as a matter of law due to improper service of process. (Ellard, supra, 94 Cal.App.4th at 544.) Alvarado’s request for relief under this state fails because he has not shown that service of process was improper. A process server filed a proof of service which is presumptively valid. “[A] registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390 (citing Evid. Code ; 647).) Corroborating this presumption, the place where substituted service was effected — 652 South Arizona Avenue, East Los Angeles, CA 90022 — is the same place that Alvarado specifies as his address on his memorandum in support of this motion.

Finally, courts do have inherent equity authority to vacate a judgment on equitable grounds such as extrinsic fraud or mistake. (Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97.) However, Alvarado has not substantiated extrinsic fraud or mistake or articulated a theory as to why extrinsic fraud or mistake should be found.

CONCLUSION

Alvarado’s motion to set aside the default judgment is DENIED. The Court is not imposing a monetary penalty upon Alvarado.



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