This case was last updated from Los Angeles County Superior Courts on 03/23/2021 at 21:42:13 (UTC).

RAKESH KOTHARI VS GOVIND R. VAGHASHIA ET AL

Case Summary

On 11/22/2017 RAKESH KOTHARI filed a Contract - Other Contract lawsuit against GOVIND R VAGHASHIA. This case was filed in Los Angeles County Superior Courts, Glendale Courthouse located in Los Angeles, California. The Judge overseeing this case is RALPH C. HOFER. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7612

  • Filing Date:

    11/22/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RALPH C. HOFER

 

Party Details

Plaintiff

KOTHARI RAKESH

Defendants

VAGHASHIA MITA AN INDIVIDUAL

TRAVELODGE BURBANK

VAGHASHIA PRASHANT T. AN INDIVIDUAL

QUALITY INN BURBANK AIRPORT

QUALITY INN AND SUITES CAMARILLO

VAGHASHIA SONAL AN INDIVIDUAL

VAGHASHIA FAMILY PARTNERSHIP LIMITED

VAGHASHIA GOVIND R. AN INDIVIDUAL

VAGHASHIA MITA

VAGHASHIA PRASHANT

VAGHASHIA SONAL

VAGHASHIA GOVIND

Attorney/Law Firm Details

Plaintiff Attorney

USUDE JOVI GERALD

Defendant Attorneys

JOVI G. USUDE LAW OFFICE OF

ALFRED O. ANYIA LAW OFFICES OF

ENENSTEIN PHAM & GLASS

PHAM TERI THUY

ANYIA ALFRED OSHIOMELE

 

Court Documents

Minute Order - MINUTE ORDER ENTERED: 2018-06-07 00:00:00

6/7/2018: Minute Order - MINUTE ORDER ENTERED: 2018-06-07 00:00:00

Minute Order - MINUTE ORDER ENTERED: 2018-06-22 00:00:00

6/22/2018: Minute Order - MINUTE ORDER ENTERED: 2018-06-22 00:00:00

Minute Order - MINUTE ORDER ENTERED: 2018-09-28 00:00:00

9/28/2018: Minute Order - MINUTE ORDER ENTERED: 2018-09-28 00:00:00

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE ANTI-SLAPP APPEAL; TRIAL SETTING CONFERENCE)

3/11/2020: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE ANTI-SLAPP APPEAL; TRIAL SETTING CONFERENCE)

Writ - Return

4/17/2020: Writ - Return

Appeal - Remittitur - Affirmed - APPEAL - REMITTITUR - AFFIRMED B292209

7/15/2020: Appeal - Remittitur - Affirmed - APPEAL - REMITTITUR - AFFIRMED B292209

Writ of Execution - WRIT OF EXECUTION (LOS ANGELES)

7/16/2020: Writ of Execution - WRIT OF EXECUTION (LOS ANGELES)

Minute Order - MINUTE ORDER (COURT ORDER SETTING A STATUS CONFERENCE RE: REMITTITUR;)

8/17/2020: Minute Order - MINUTE ORDER (COURT ORDER SETTING A STATUS CONFERENCE RE: REMITTITUR;)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER SETTING A STATUS CONFERENCE RE: REMITTITUR;) OF 08/17/2020

8/17/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER SETTING A STATUS CONFERENCE RE: REMITTITUR;) OF 08/17/2020

Application and Order for Appearance and Examination

10/7/2020: Application and Order for Appearance and Examination

Declaration - DECLARATION OF JOVI USUDE IN SUPPORT OF MOTION FOR ATTORNEY'S FEES & COSTS AFTER APPEAL

10/28/2020: Declaration - DECLARATION OF JOVI USUDE IN SUPPORT OF MOTION FOR ATTORNEY'S FEES & COSTS AFTER APPEAL

Notice - NOTICE OF MOTION AND MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS PURSUANT TO ORDERAFTER APPEAL; MEMORANDUM OF POINTS AND AUTHORITIES ; [P]ROPOSED ORDER.

10/28/2020: Notice - NOTICE OF MOTION AND MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS PURSUANT TO ORDERAFTER APPEAL; MEMORANDUM OF POINTS AND AUTHORITIES ; [P]ROPOSED ORDER.

Notice - NOTICE OF ERRATA TO PLIANTIFF'S MOTION FOR ATTORNEY'S FEES

11/2/2020: Notice - NOTICE OF ERRATA TO PLIANTIFF'S MOTION FOR ATTORNEY'S FEES

Proof of Service (not Summons and Complaint)

11/16/2020: Proof of Service (not Summons and Complaint)

Ex Parte Application - EX PARTE APPLICATION PLAINTIFF'S EX-PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR HEARING PLAINTIFFS MOTION FOR A VS. PROTECTIVE ORDER; MEMORANDUM OF POINTS & AUTHORIT

11/18/2020: Ex Parte Application - EX PARTE APPLICATION PLAINTIFF'S EX-PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR HEARING PLAINTIFFS MOTION FOR A VS. PROTECTIVE ORDER; MEMORANDUM OF POINTS & AUTHORIT

Declaration - DECLARATION DECLARATION OF JOVI USUDE IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

11/18/2020: Declaration - DECLARATION DECLARATION OF JOVI USUDE IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

Motion for Protective Order

11/18/2020: Motion for Protective Order

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME ...)

11/23/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME ...)

134 More Documents Available

 

Docket Entries

  • 06/02/2021
  • Hearing06/02/2021 at 08:30 AM in Department D at 600 East Broadway, Glendale, CA 91206; Status Conference

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  • 03/05/2021
  • Docketat 09:00 AM in Department D; Hearing on Motion - Other (for Award of Attorneys' Fees and Costs pursuant to Order after Appeal filed on behalf of Plaintiff Rakesh Kothari) - Held - Motion Denied

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  • 03/05/2021
  • DocketMinute Order ( (Hearing on Motion for Award of Attorneys' Fees and Costs purs...)); Filed by Clerk

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  • 03/01/2021
  • DocketReply (PLAINTIFF?S REPLY TO DEFENDANTS? OPPOSITION TO MOTION FOR AWARD FOR ATTORNEYS? FEES AND COSTS AFTER APPEAL; MEMORANDUM OF POINTS AND AUTHORITIES;); Filed by RAKESH KOTHARI (Plaintiff)

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  • 02/26/2021
  • Docketat 09:00 AM in Department D; Hearing on Application for Order for Appearance and Examination (and Enforcement of Judgment as to Judgment Debtor Rakesh Kothari filed on behalf of Govind R. Vaghashia, et al.) - Not Held - Vacated by Court

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  • 02/26/2021
  • Docketat 09:00 AM in Department D; Hearing on Motion for Protective Order (to Defendants' Request for Production of Documents, Set Two filed on behalf of Plaintiff Rakesh Kothari) - Held - Motion Denied

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  • 02/26/2021
  • Docketat 09:00 AM in Department D; Hearing on Motion to Compel (Further Responses by Plaintiff Rakesh Kothari to Request for Production of Documents, Sets One and Two and Request for Sanctions of $5,890.50) - Held

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  • 02/26/2021
  • DocketMinute Order ( (Hearing on Motion for Protective Order to Defendants' Request...)); Filed by Clerk

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  • 02/24/2021
  • DocketNotice (of Withdrawal of Debtor Exam and Request to Recall Warrant); Filed by GOVIND VAGHASHIA (Defendant)

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  • 02/22/2021
  • DocketOpposition (DEFENDANTS? OPPOSITION TO PLAINTIFF?S NOTICE OF MOTION AND MOTION FOR AWARD OF ATTORNEYS? FEES AND COSTS PURSUANT TO ORDER AFTER APPEAL; AND DECLARATION OF TERI T. PHAM IN SUPPORT THEREOF); Filed by GOVIND VAGHASHIA (Defendant); SONAL, VAGHASHIA (Defendant); VAGHASHIA FAMILY PARTNERSHIP LIMITED (Defendant)

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234 More Docket Entries
  • 12/01/2017
  • DocketRequest (FOR COPIES OF COMPLAINT & CIVIL CASE COVER SHEET ); Filed by Interested Party

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  • 12/01/2017
  • DocketRequest; Filed by Interested Party

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  • 11/22/2017
  • DocketComplaint filed-Summons Issued; Filed by null

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  • 11/22/2017
  • DocketNotice of Case Assignment - Unlimited Civil Case

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  • 11/22/2017
  • DocketCivil Case Cover Sheet

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  • 11/22/2017
  • DocketNotice (OF OSC)

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  • 11/22/2017
  • DocketNotice of Case Management Conference

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  • 11/22/2017
  • DocketSummons Filed

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  • 11/22/2017
  • DocketComplaint filed-Summons Issued

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  • 11/22/2017
  • DocketSummons; Filed by null

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Tentative Rulings

Case Number: ****7612 Hearing Date: March 18, 2022 Dept: D

TENTATIVE RULING
Calendar: 8
Date: 3/18/2022
Case No: EC 067612 Trial Date: April 18, 2022
Case Name: Kothari v. Vaghashia, et al.
MOTION TO BIFURCATE
Moving Party: Cross-Defendants Govind R. Vaghashia and Vaghashia Limited Partnership
Responding Party: Defendants and Cross-Complainants Prashant Vaghashia and Mita Vaghashia
RELIEF REQUESTED:
Order bifurcating the cross-claims for indemnity by defendants and cross-complainants Prashant and Mita Vaghashia to be tried after plaintiff Rakesh Kothari’s claims alleged in the First Amended Complaint
FACTUAL AND PROCEDURAL BACKGROUND:
Plaintiff Rakesh Kothari alleges that in July of 2014 he entered a written agreement with defendants Govind Vaghashia dba Quality Inn and Suites, Sonal Vaghashia dba Travelodge Burbank, Prashant Vaghashia dba Quality Inn Burbank Airport, Mita Vaghashia and Vaghasia Family Partnership Limited, the owners of hotels/motels in Southern California, wherein it was agreed that plaintiff would be responsible for the management of defendants’ Quality Inn hotel/motel in Burbank, and their Quality Inn and Suites hotel/motel located in Camarillo. Plaintiff alleges that under the agreement he was entitled to an hourly wage and a 10% commission of gross revenue for each hotel/motel, to be paid three years after entering the contract. It is also alleged that plaintiff would be allowed to move with his family to defendants’ real property located close to the Quality Inn Burbank, with plaintiff to take possession of the rented property for the seven-year duration of the contract without payment of rent and utilities. The parties agreed that plaintiff could live at the rented property until he ceased to work under the contract or was terminated for any justifiable reason, and that if terminated, plaintiff would be entitled to twelve months’ notice to vacate the rented property.
Plaintiff alleges that plaintiff performed under the contract, significantly increasing the gross revenues of the hotels/motels, and in January of 2015 entered into a separate agreement for plaintiff to take over and manage defendants’ Travelodge Burbank, which also included an agreement for paying a commission.
Plaintiff alleges that defendants would pay plaintiff late or not pay the monthly agreed upon stipends, and did not pay plaintiff overtime, or the required minimum wage.
It is also alleged that defendant Govind ordered plaintiff to obtain workers’ compensation insurance coverage in his own name, and when plaintiff declined began to harass plaintiff by threatening to terminate him and calling him names in the presence of other employees. Plaintiff alleges that he was made to sign papers in blank at the beginning of his employment, as Govind had a practice of taking signatures of new employees and later using those signatures on agreements drafted by Govind. Plaintiff alleges that defendant instructed plaintiff to commit acts that violated the law such as preparing false statements to be submitted in workers compensation claims or forging documents in civil cases. Plaintiff alleges that when he refused to commit the illegal acts, defendants decided to terminate his employment, and have otherwise breached the contract by failing to pay the commissions due.
Plaintiff alleges that after he filed the initial complaint in this action, he was inundated with numerous requests by defendants that plaintiff dismiss his lawsuit, and on March 8, 2018, plaintiff received a letter terminating his employment without justifiable reasons, but because plaintiff was about to testify regarding defendant Govind’s fraud in forging documents and signatures of employees who sued defendants for violation of various wage laws. On the same day plaintiff’s employment was terminated, defendant Govind posted a thirty-day notice for plaintiff and his family to vacate and quit the rented property.
Plaintiff also alleges that in a further effort to harass plaintiff, defendant Govind filed a request for restraining order seeking to restrain plaintiff from his place of residence, but the court denied the request for a temporary restraining order until the day of the hearing, and before the hearing Govind dismissed the case, because it was baseless.
Defendants Prashant Vaghashia and Mita Vaghashia have filed a cross-complaint for equitable indemnity and declaratory relief against cross-defendants Govind Vaghashia and the Vaghashia Family Partnership Limited, alleging that cross-complainants were in no way connected with the termination of plaintiff’s employment or of any of the acts or conduct complained of in the complaint, but that any injuries or damages alleged will be founded on the fault of cross-defendants. Specifically, the cross-complaint alleges that cross-complainants and cross-defendants were partners in the motel business, and decided to employ a motel consultant, Kothari, but that in October of 2017, defendant Govind requested that cross-complainant Prashant terminate the employment of Kothari, because plaintiff had refused to divulge his hotel marketing formula to Govind and because plaintiff was asking for his commission under the agreement. The cross-complaint alleges that cross-complainant refused to carry out the order to terminate plaintiff’s employment, informing cross-defendant it would be improper to do so since plaintiff had performed his part of the agreement, but Govind informed cross-complainant that he was going to deny the existence of the employment agreement with plaintiff.
Defendants Vaghashia Family Limited Partnership, Govind Vaghashia and Sonal Vaghasia filed a special motion to strike the fifth and tenth causes of action of the first amended complaint (anti-SLAPP), which was heard on June 22, 2018. The motion was granted as to the fifth cause of action for Injunction Relief and denied as to the tenth cause of action for Harassment. The motion was also denied with respect to a request to strike specific allegations in the pleading in connection with the harassment claim.
Defendants appealed the denial of the special motion to strike. Remittitur was received by this court on July 15, 2020. The court of appeal, in an unpublished decision, affirmed the trial court’s order.
The matter is now set for trial on April 18, 2022.
ANALYSIS:
Defendants and Cross-defendants Govind Vaghashia and Vaghashia Family Limited Partnership S&C seek an order bifurcating the cross-claims for indemnity brought against them by defendants and cross-complainants Prashant Vaghashia and Mita Vaghashia, so that those claims are tried after plaintiff Kothari’s claims alleged in the First Amended Complaint. Relief is sought under CCP 598 and 1048.
CCP 598 provides:
“The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order... that the trial of any issue or any part thereof shall precede the trial of any other issue or part thereof in the case.”
Section 598 was adopted in 1963 as the result of Judicial Council recommendations and “its objective is avoidance of waste of time and money caused by unnecessary trial of damage questions in cases where the liability issue is resolved against the plaintiff.” Trickey v. Superior Court (1967) 252 Cal.App.2d 650. 653.
CCP 1048 provides, in pertinent part:
“(b) 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, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.”
The determination of whether to bifurcate the trial of issues in a single action “is a matter within the discretion of the trial court, whose ruling will not be disturbed on appeal absent a manifest abuse of discretion.” Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co. (2nd Dist. 1987) 189 Cal.App.3d 1072, 1086 (noted to have been superseded by statute on another issue in Yang v. Peoples Benefit Ins. Co. (2007) 2007 U.S.Dist Lexis 41331), citing McArthur v. Schaffer (1943) 58 Cal.App.2d 724, 727.
The federal courts have developed more specific standards and burdens with respect to bifurcation under Federal Rule 42(b), which serves similar purposes as the California statute.
The federal courts have set forth the following factors to be considered in bifurcation determinations:
1) There will be little overlapping testimony and evidence between the two proceedings;
2) Where issues to be decided are complex and the factfinder is likely to become confused;
3) Where bifurcation will promote settlement; and
4) Where a single trial will cause unnecessary delay.
Rodin Properties-Shore Mall, N.V. v. Cushman & Wakefield, of Pennsylvania, Inc. (D.C. NJ 1999) 49 F.Supp.2d 709, 721.
The District Court in Rodin observed: “None of these factors are determinative. To the contrary, ‘a court must take into account the ‘overall equities’ of the case in ruling on a motion to bifurcate.’” Rodin, at 721, quotation citation omitted.
California courts have recognized that bifurcation is proper where liability is a simple matter while damages require testimony from multiple witnesses (Trickey, supra), or where only a small fraction of the evidence would be repeated, and the trial court had determined the ends of justice would be served by bifurcation. Kaiser Steel Corp. v. Westinghouse Elec. Corp. (2nd Dist., 1976) 55 Cal.App.3d 737.
Cross-defendants Govind Vaghashia and the Family Trust argue that this is an appropriate case to bifurcate because any liability to plaintiff with respect to plaintiff’s employment claims must necessarily be determined before any determination of contribution or damages attributable to the cross-complainants and cross-defendants, and that bifurcation will streamline, expedite and economize the proceedings and avoid prejudice to Govind Vaghashia. It is argued that cross-complainants allege they are partners and co-owners with Govind Vaghashia, but that his actions alone are responsible for any liability owed to plaintiff, which Govind Vaghashia denies.
The argument does not seem to be any different from any other cross-complaint for indemnity where a cross-defendant is denying liability to plaintiff. There is no indication that there would be any efficiencies from proceeding in this fashion, such as that certain witnesses would not be called, or certain evidence would not have to be introduced. The argument seems to confusingly be that there would be no need to establish damages if there is no liability to plaintiff, but in the posture of this motion, at best there would be no need to apportion liability for those damages between the parties if no liability is found. This is not a motion to bifurcate liability from damages in connection with the FAC, however, but to bifurcate the entire action on the FAC from the cross-complaint, so that the issue of damages in connection with the FAC would still necessarily be decided in the main action, including the apportionment of those damages between the various defendants.
The argument also seems to be that a determination that there is no liability to plaintiff would moot the indemnity claims against cross-defendants in their entirety. However, there is no attempt to show that this is a case in which it is highly likely that there will be no finding of liability, and no facts submitted in support of the broad argument that the indemnity cross-claims are factually and legally unrelated to plaintiff’s claims. At best, the argument appears to be that the indemnity claims require exploration of the issue of whether the cross-parties were partners.
However, as noted above, the cross-complaint here raises issues which are also necessary to be resolved as defenses in the main action, as cross-complainants are essentially conceding that plaintiff was subject to wrongful employment conduct by cross-defendant Govid Vaghashia, but that cross-complainants refused to participate in that conduct.
Specifically, the cross-complaint alleges that cross-complainants and cross-defendants were partners in the motel business, and decided to employ a motel consultant, Kothari, but that in October of 2017, defendant Govind requested that cross-complainant Prashant terminate the employment of Kothari, because plaintiff had refused to divulge his hotel marketing formula to Govind and because plaintiff was asking for his commission under the agreement. The cross-complaint alleges that cross-complainant refused to carry out the order to terminate plaintiff’s employment, informing cross-defendant it would be improper to do so since plaintiff had performed his part of the agreement, but Govind informed cross-complainant that he was going to deny the existence of the employment agreement with plaintiff. [Cross-Complaint, paras. 10-12].
Evidence in support of these allegations will likely also be relied upon and introduced by cross-complainants in the main action to defend against any liability on the part of those cross-complainants as defendants. Cross-complainants in the opposition indicate that to absolve themselves from liability, they will testify as witnesses to the allegations in these paragraphs of the cross-complaint.
To the extent Govind Vaghashia intends to argue that cross-complainants are responsible for any misconduct found on the part of Govind Vaghashia, he will evidently argue that liability is shared due to the status of the parties as partners in the business, as noted in the motion. Plaintiff may also be making such an argument to extend liability to the cross-complainants. Such an argument and evidence accordingly will necessarily be presented in the main action, regardless of any cross-complaint for indemnity, so it is difficult to understand how efficiency or economy would be served.
The motion also argues that there will be extensive expert testimony on a complicated partnership issue which would likely confuse the jury. As noted above, this evidence would have to be presented in the main action on the issue of the liability of each named defendant, and a separate trial of the complaint would not result in this evidence not having to be presented at all, but, if liability is found, having to be presented twice. As argued in the opposition, having separate trials on the complaint and the indemnity claims substantially would waste the parties’ and court’s resources, requiring the presentation of evidence of damages, including witness testimony and expert analysis and opinion in two phases, when the whole case will have been presented in connection with the first trial on liability to plaintiff.
Cross-defendants also argue somewhat vaguely that there is already an action pending between the two brothers on the partnership issue which is currently set for trial on March 28, 2022, and which will likely prevent further litigation on the indemnification issues under the doctrines of res judicata and collateral estoppel. There is no specific argument regarding the impact of this other proceeding on this matter, or explanation why a determination in that case would prevent the presentation of evidence on the part of cross-complainants in the main action that cross-defendant was not acting on behalf of or with the permission of the partnership when engaging in the conduct plaintiff is alleging. The argument improperly assumes that these issues will only be pertinent to the indemnity action to be conducted at a later date, which, as discussed above, is not the case.
In any case, the argument appears to be best made in connection with a motion to continue the trial date pending the determination in the other case, if cross-defendants have a meritorious argument that the determination in the other case have a possibility of substantively affecting the proceedings in this matter. The motion does provide, in a footnote, the case number of the other case, BC 696133. The docket for that case shows that a trial date is scheduled for March 28, 2022 for a non-jury trial [Phase1] with a 14 day estimate.
The case evidently involves that case, as well as three consolidated cases and one related case between the Vaghashias and various entities. Without a clear explanation of what those cases involve, and how they would impact this matter, the court cannot issue a bifurcation order based on this vague argument. The other case has not been deemed related or consolidated with this action. The file in this action shows a Notice of Related Case was filed in this action on December 3, 2021, in connection with a case, 21 BBCV00872, filed in September of 2021. That case is not a case which is a consolidated or related case in BC 696133. There has evidently been no order deeming the 21 BBCV00872 case related to this case.
In any case, the moving parties have failed to meet their burden to show how the other matter would support the relief requested here, which is an order bifurcating the trial of the complaint from the trial of the cross-complaint.
The moving parties have failed to meet their burden under CCP 598 and 1048 (b) of demonstrating separate trials would further convenience, avoid prejudice, or be conducive to expedition and economy. The motion accordingly is denied.
RULING:
Cross-Defendants Govind R. Vaghashia and Vaghashia Family Limited Partnership’s Motion to Bifurcate Cross-Claims for Indemnity is DENIED.
GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES
Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear. Anyone who appears in person for the hearing, regardless of vaccination status, must wear a face mask over both the nose and mouth. If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.


b"

Case Number: ****7612 Hearing Date: December 3, 2021 Dept: D

TENTATIVE RULING
Calendar: 2
Date: 12/3/2021
Case No: ****7612 Trial Date: April 18, 2021
Case Name: Kotharti v. Vaghashia, et al.
MOTION TO COMPEL FURTHER RESPONSES TO INTERROGATORIES
Moving Party: Plaintiff Rakesh Kothari
Responding Party: Defendant Govind R. Vaghashia
RELIEF REQUESTED:
Further Responses to Special Interrogatories, Set One, Nos. 17 through 31
DECLARATION SUPPORTING MOTION:
Reasonable and good faith attempt to resolve informally: Yes, Ukeje Decl., paras. 6-10, Exs. 3-6
FACTUAL BACKGROUND
Plaintiff Rakesh Kothari alleges that in July of 2014 he entered a written agreement with defendants Govind Vaghashia dba Quality Inn and Suites, Sonal Vaghashia dba Travelodge Burbank, Prashant Vaghashia dba Quality Inn Burbank Airport, Mita Vaghashia and Vaghasia Family Partnership Limited, the owners of hotels/motels in Southern California, wherein it was agreed that plaintiff would be responsible for the management of defendants’ Quality Inn hotel/motel in Burbank, and their Quality Inn and Suites hotel/motel located in Camarillo. Plaintiff alleges that under the agreement he was entitled to an hourly wage and a 10% commission of gross revenue for each hotel/motel, to be paid three years after entering the contract. It is also alleged that plaintiff would be allowed to move with his family to defendants’ real property located close to the Quality Inn Burbank, with plaintiff to take possession of the rented property for the seven-year duration of the contract without payment of rent and utilities. The parties agreed that plaintiff could live at the rented property until he ceased to work under the contract or was terminated for any justifiable reason, and that if terminated, plaintiff would be entitled to twelve months’ notice to vacate the rented property.
Plaintiff alleges that plaintiff performed under the contract, significantly increasing the gross revenues of the hotels/motels, and in January of 2015 entered into a separate agreement for plaintiff to take over and manage defendants’ Travelodge Burbank, which also included an agreement for paying a commission.
Plaintiff alleges that defendants would pay plaintiff late or not pay the monthly agreed upon stipends, and did not pay plaintiff overtime, or the required minimum wage.
It is also alleged that defendant Govind ordered plaintiff to obtain workers’ compensation insurance coverage in his own name, and when plaintiff declined began to harass plaintiff by threatening to terminate him and calling him names in the presence of other employees. Plaintiff alleges that he was made to sign papers in blank at the beginning of his employment, as Govind had a practice of taking signatures of new employees and later using those signatures on agreements drafted by Govind. Plaintiff alleges that defendant instructed plaintiff to commit acts that violated the law such as preparing false statements to be submitted in workers compensation claims, or forging documents in civil cases. Plaintiff alleges that when he refused to commit the illegal acts, defendants decided to terminate his employment, and have otherwise breached the contract by failing to pay the commissions due.
Plaintiff alleges that after he filed the initial complaint in this action he was inundated with numerous requests by defendants that plaintiff dismiss his lawsuit, and on March 8, 2018, plaintiff received a letter terminating his employment without justifiable reasons, but because plaintiff was about to testify regarding defendant Govind’s fraud in forging documents and signatures of employees who sued defendants for violation of various wage laws. On the same day plaintiff’s employment was terminated, defendant Govind posted a thirty-day notice for plaintiff and his family to vacate and quit the rented property.
Plaintiff also alleges that in a further effort to harass plaintiff, defendant Govind filed a request for restraining order seeking to restrain plaintiff from his place of residence, but the court denied the request for a temporary restraining order until the day of the hearing, and before the hearing Govind dismissed the case, because it was baseless.
Defendants Prashant Vaghashia and Mita Vaghashia have filed a cross-complaint for equitable indemnity and declaratory relief against cross-defendants Govind Vaghashia and the Vaghashia Family Partnership Limited, alleging that cross-complainants were in no way connected with the termination of plaintiff’s employment or of any of the acts or conduct complained of in the complaint, but that any injuries or damages alleged will be founded on the fault of cross-defendants.
Defendants Vaghashia Family Limited Partnership, Govind Vaghashia and Sonal Vaghasia filed a special motion to strike the fifth and tenth causes of action of the first amended complaint (anti-SLAPP), which was heard on June 22, 2018. The motion was granted as to the fifth cause of action for Injunction Relief and denied as to the tenth cause of action for Harassment. The motion was also denied with respect to a request to strike specific allegations in the pleading in connection with the harassment claim.
Defendants appealed the denial of the special motion to strike. Remittitur was received by this court on July 15, 2020. The court of appeal, in an unpublished decision, affirmed the trial court’s order.
ANALYSIS:
Under CCP ; 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action...if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The section specifically provides that “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action,” and that discovery may be obtained “of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any document, electronically stored information, tangible thing, or land or other property.”
Under CCP ; 2030.300:
“(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:…
(3) An objection to an interrogatory is without merit or too general.”
If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully respond to discovery. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. The granting or denial of a motion to compel is in the discretion of the trial court. Coy, at 221-222. A court should generally consider the following factors:
The relationship of the information sought to the issues framed in the pleadings;
The likelihood that disclosure will be of practical benefit to the party seeking discovery;
The burden or expense likely to be encountered by the responding party in furnishing the information sought.
Columbia Broadcast System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19.
The motion concerns special interrogatories Nos. 17-31, which request, “What was the gross revenue of Quality Inn Hotel/Motel, Burbank in the year 2014?” and successive years through 2018, for each of three hotels/motels.
The responses are
“Responding Party objects to this Interrogatory on the grounds that, and to the extent that, it is vague, ambiguous, and unintelligible; and it is unduly burdensome, oppressive, and designed solely to harass. Responding Party also objects on the grounds that, and to the extent that it seeks disclosure of taxpayer privileged information and records. (See IRS Code, ;; 7216, 6713, and 7525; Treas. Regs., ; 301.726; 15 U.S.C. ; 6802; Cal. Rev. & T. Code ;; 7056 and 19542; Webb v. Standard Oil (1957) 49 Cal.2d 509; Aday v. Superior Court (1961) 55 Cal.2d 789.) Responding Party further objects to this Interrogatory on the grounds that it violates Responding Party’s financial privacy.”
Plaintiff argues that a key issue in this action is whether plaintiff increased the financial revenue of certain of defendants’ motels and was therefore entitled to a 10% commission from the revenue, which defendants have refused to pay, and that the discovery seeks evidence of gross revenues to show that plaintiff did increase the motels’ revenue as agreed. Plaintiff also argues that the discovery requests are clear and not unintelligible, and there is nothing private about the information sought in the discovery requests. Plaintiff also argues that the cited codes and case law are not on point and bear no relation to this case.
Defendant in opposition does not attempt to justify the objections other than the objection based on financial privacy. Defendant has accordingly failed to justify any of the other objections, and they will be overruled. Defendant also seems to argue that the discovery should not be ordered produced because the existence of the alleged employment agreement is highly disputed in this case, as defendants deny that there was ever such an agreement, and plaintiff in response to discovery has produced only a questionable photocopy of such an agreement, which defendants’ expert has analyzed and believes is a forgery. Defendants accordingly suggest that the court bifurcate the issues of whether such an agreement exists from the issue of damages, and only permit discovery of the financial information once liability has been established. This is not an objection which was asserted to the special interrogatories at issue and instead is an objection based on the discoverability of the information, which is clearly without merit, as the gross revenues of each business in the year just before and during the alleged agreement would clearly be relevant not only to damages, but to whether liability has arisen under the agreement, if such an agreement is found to exist. There is no bifurcation order in this matter, and none has been sought, and it would appear highly unlikely that a bifurcation order would be appropriate which bifurcated only one aspect of liability from the remainder of the action. This matter appears no different from any breach of contract action in which the existence or enforceability of the contract is disputed. This argument is not a ground for denying discovery of discoverable material.
To the extent the argument seems to be that plaintiff and defendants are competitors in the hotel/motel industry, and the information sought constitutes trade secrets, defendant again did not make this objection to the interrogatories, so it has been waived, and, in any case, defendant has not met the burden to establish the existence of a trade secret. The party claiming a trade secret privilege has the burden of establishing its existence, in effect, that the information involved is a trade secret and that the party is its owner. Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1348, 1390.
The court will hear argument with respect to whether the parties will enter into a stipulated protective order, which would limit the use of the information, if truly confidential, to this action.
With respect to financial privacy, the financial information being sought is the information concerning hotel businesses owned and run by the responding party, so it not the private financial information of a natural person.
It is held that personal financial information comes within the zone of privacy protected by article I, section 1 of the California Constitution. Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656.
This privacy protection is not absolute but may be abridged to accommodate a compelling state interest, which has been held to include “the historically important state interest of facilitating the ascertainment of truth in connection with legal proceedings.” Britt v. Superior Court (1978) 20 Cal.3d 844, 859.
Plaintiff cites Moskowitz v. Superior Court (1982) 137 Cal.App.3d 313, in which the court of appeal held:
“When an individual’s right of privacy in his financial affairs conflicts with the public need for discovery in litigation, the competing interests must be carefully balanced. Even where the balance weighs in favor of disclosure of private information, the scope of the discovery will be narrowly circumscribed; such an invasion of the right of privacy must be drawn with narrow specificity and is permitted only to the extent necessary for a fair resolution of the lawsuit.”Moskowitz, at 316.
This privacy protection may also apply to corporate entities. H&M Associates v. City of El Centro (1980) 109 Cal.App.3d 399, 409. However, it is held that this privacy right is lesser than that afforded individuals. In Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770, the court of appeal observed:
“Although corporations have a lesser right to privacy than human beings and are not entitled to claim a right to privacy in terms of a fundamental right, some right to privacy exists. Privacy rights accorded artificial entities are not stagnant but depend on the circumstances.”
Roberts, at 796
The court of appeal in Roberts further noted:
“Corporations can claim no equality with individuals in the enjoyment of a right to privacy. There is no need for the meticulous and careful scrutiny that is accorded more fundamental interests. Accordingly, the compelling state interest test is not appropriate.”
Roberts, at 796-797.
The court must determine whether the privacy right of a business entity is outweighed by the relevance of the information sought to the subject matter in the pending action, and “doubts as to relevance should generally be resolved in favor of permitting discovery.” Hecht, Solberg, Robinson, Goldberg & Bagley v. Superior Court (2006) 137 Cal.App.4th 579. Where the trial court has conducted this balancing, its determination with respect to protection of financial information is reviewed for abuse of discretion. Hecht, at 600.
Defendant in opposition urges that the court apply the framework established in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1.
First, a claimant must possess a “legally protected privacy interest.” Hill, at 35. Second, the claimant must have a reasonable expectation of privacy under the particular circumstances, including the customs, practices, and physical settings surrounding particular activities. Hill, at 36-37. Third, the invasion of privacy must be serious in nature, scope, and actual or potential impact. Hill, at 37. If there is a reasonable expectation of privacy and the invasion of privacy is serious, then the court must balance the privacy interest at stake against other competing or countervailing interests. Hill, at 37-40.
The California Supreme Court, in Williams v. Superior Court (2017) 3 Cal.5th 531, reiterated that the Hill analysis is to be applied in determining the scope of discovery of private information, and that the burden to establish a privacy interest remains initially with the party asserting such an interest:
“The state Constitution expressly grants Californians a right of privacy. (Cal. Const., art. I, ; 1.) Protection of informational privacy is the provision's central concern. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35, 26 Cal.Rptr.2d 834, 865 P.2d 633.) In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. (Id. at pp. 35–37, 26 Cal.Rptr.2d 834, 865 P.2d 633.) The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. (Id. at pp. 37–40, 26 Cal.Rptr.2d 834, 865 P.2d 633.).”
Williams, at 552.
The Court rejected case law, relied upon by defendant here, which requires a party seeking discovery of private information to establish a compelling interest, placing the initial burden on the party asserting a privacy objection:
“Marshalls argues Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633 did not overrule the compelling interest/compelling need test, but only concluded such an interest need not be shown in every case. This is correct so far as it goes. A threatened invasion of privacy can, to be sure, be extremely grave, and to the extent it is, to conclude in a given case that only a compelling countervailing interest and an absence of alternatives will suffice to justify the intrusion may be right. (See, e.g., American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 340–342, 66 Cal.Rptr.2d 210, 940 P.2d 797.) But the flaw in the Court of Appeal's legal analysis, and in the cases it relied upon, is the de facto starting assumption that such an egregious invasion is involved in every request for discovery of private information. Courts must instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires. What suffices to justify an invasion will, as Marshalls recognizes, vary according to the context. Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest. (Hill, at p. 34, 26 Cal.Rptr.2d 834, 865 P.2d 633.) To the extent prior cases require a party seeking discovery of private information to always establish a compelling interest or compelling need, without regard to the other considerations articulated in Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, they are disapproved.”
Williams, at 557.
Here, the opposition argues that the interrogatories seek financial information and are intrusive, seeking sensitive information protected by the California Constitution, and also argues that disclosure of such would be a serious invasion of that right.
As noted above, since the financial information is of business entities and not a natural person, the privacy concerns are less weighty here, and it is not clear how disclosure of the particular narrow financial information called for would constitute a serious invasion of the rights of those business entities, particularly if a protective order is implemented. In any case, even assuming that the business entities would have an objectively reasonable expectation of privacy in their gross revenues for particular years, it appears that the requests seek narrowly tailored information concerning an issue necessary to establish liability under the contract, which is the subject of this action, and do not present a serious intrusion into the limited expectation of privacy on the part of the business entities.
The plaintiff has also shown how the requests serve an important countervailing interest of determining not just damages, but the central issue of whether plaintiff is entitled to commissions at all based on increasing the gross revenues of the businesses. It does not appear that there is any less intrusive means for obtaining this information, as obtaining it directly from the principal of the entities, rather than from bank records or tax records, appears to be the appropriate first step.
The balance here favors disclosure, perhaps subject to a protective order limiting the disclosure of the information, and the motion is granted. The parties are ordered to meet and confer with respect to entering a protective order, and to use the Stipulated Confidentiality Order Form provided by the Los Angeles Superior Court as a model. The parties are ordered to provide to the Court within five days a redlined or compare copy of the proposed order as compared to the Stipulated Confidentiality Order Form, as required by the model, and the order will be entered by the Court as appropriate.
The court notes that Special Interrogatory No. 31 is identical to Special Interrogatory No. 30, as both ask, “What was the gross revenue of Travel Lodge, Burbank in the year 2017.” The motion accordingly is denied as to Special Interrogatory to 31.
The opposition also notes that the moving papers indicate that the requests are limited to the years 2015 to 2017. [See Memorandum, p. 8:4-6]. The court will discuss at the hearing if plaintiff intends to so limit the discovery, in which case the motion will be denied to the Special Interrogatories pertaining to the years 2014 and 2018, Special Interrogatories Nos. 17, 21, 22, 26, and 27.
Sanctions
This leaves the issue of monetary sanctions, which are sought by plaintiff.
With respect to interrogatories, CCP ; 2030.300 (d) provides that the court “shall impose a monetary sanction...against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”
Under CCP ; 2023.010, misuse of the discovery process includes “(e) making, without substantial justification, an unmeritorious objection to discovery”; and “(f) making an evasive response to discovery.” Where there has been a misuse of the discovery process, under Section 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”
The burden is on the party subject to sanctions to show substantial justification or injustice. Mattco Forge, Inc. v. Arthur Young & Co. (1990, 2nd Dist.) 223 Cal.App.3d 1429, 1436.
Here, the responses served included objections which responding party has failed to justify, and responding party made these motions necessary. The opposition argues that plaintiff is a competitor of defendant, and plaintiff failed to provide alternatives to address defendant’s recognized privacy right and refused the proposal to address the issue of the existence of the alleged agreement prior to engaging in the discovery. Defendant argues that there is a good faith dispute here, and that defendant acted with substantial justification in resisting this discovery.
The discovery appears to seek material directly relevant to this matter, and defendant has not justified the rather irregular proposal that discovery into such matters be postponed until one aspect of liability is determined. Defendant in resisting the discovery assumed the risk that this motion would be resolved in favor of the discovery being ordered to be produced. Sanctions are awarded to compensate plaintiff for the expense of having to bring this motion.
The sanctions sought are $4,501.25. These appear reasonable and are awarded as requested.
RULING:
Motion of Plaintiff, Rakesh Kothari for an Order Compelling Further Responses To Special Interrogatories, Set One, Nos. 17-31 is DENIED as to Special Interrogatory No. 31, which is duplicative of Special Interrogatory No. 30. Motion is otherwise GRANTED.
(Or, at the concession of plaintiff in the moving memorandum, the Interrogatories at issue are limited to the years 2015 to 2017, so the motion as to the Special Interrogatories concerning the years 2014 and 2018, Nos. 17, 21, 22, 26, and 27, is DENIED, as those Interrogatories have been withdrawn. Motion is otherwise GRANTED.)
Defendant Vaghashia is ordered to serve further verified responses to Special Interrogatories, Set One, Nos. 17-30, without objection.
(Or, Defendant Vaghashia is ordered to serve further verified responses to Special Interrogatories, Set One, Nos. 18, 19, 29, 23, 24, 24, 28, 29 and 30, without objection).
The Court has reviewed the objections asserted, and finds they are without merit, and objections are OVERRULED. Defendant has not met the burden to establish a threatened intrusion into private information on the part of the entity defendants that is serious. Even if such a showing had been made, plaintiff has established a legitimate and important interest in pursuing relevant information in connection with the claims in this action that plaintiff’s efforts resulted in an increase in gross revenue entitling him to a commission, and it appears that direct responses to the requests are the least intrusive means to discover the information. The requests are narrow, and the Court finds the need for this information outweighs any privacy invasion argued by defendant, particularly once the parties enter into a stipulated protective order, limiting disclosure of the information to those involved in this action, and given that corporate entities have reduced privacy interests.
Further responses will include all information requested, and fully comply with the Discovery Act.
The parties are ordered to meet and confer with respect to entering a protective order, and to use the Stipulated Confidentiality Order Form provided by the Los Angeles Superior Court as a model. The parties are ordered to provide to the court within five business days a redlined or compare copy of the proposed order as compared to the Stipulated Confidentiality Order Form, as required by the model, and the order will be entered by the court as appropriate.
Further responses to be served within ten business days of the entry by the court of the Stipulated Confidentiality Order.
Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $4,441.25 (10.45 hours @ $425/hour) (10.45 hours requested) plus costs of $60 filing fee [Amount Requested $4,501.25], which sum is to be awarded in favor of plaintiff Rakesh Kothari and against defendant Govind R. Vaghasia, payable within 30 days. CCP ;; 2030.300(c), 2023.010 (e) and (f), and 2023.030(a).
GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES
Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear. Anyone who appears in person for the hearing, regardless of vaccination status, must wear a face mask over both the nose and mouth. If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.
"


Case Number: ****7612    Hearing Date: March 05, 2021    Dept: D

TENTATIVE RULING
Calendar:    14  
Date:          3/5/2021  
Case No: ****7612 Trial Date:  None Set
Case Name: Kothari v. Vaghashia, et al.
MOTION FOR ATTORNEYS’ FEES ON APPEAL
Moving Party:          Plaintiff Rakeshi Kothari    
Responding Party: Defendants Govind Vaghashia, Sonal Vaghashia and Vaghashia 
Family Limited Partnership 
RELIEF REQUESTED:
Order awarding plaintiff attorney’s fees as prevailing party following appeal 
SUMMARY OF FACTS:
Plaintiff Rakesh Kothari alleges that in July of 2014 he entered a written agreement with defendants Govind Vaghashia dba Quality Inn and Suites, Sonal Vaghashia dba Travelodge Burbank, Prashant Vaghashia dba Quality Inn Burbank Airport, Mita Vaghashia and Vaghasia Family Partnership Limited, the owners of hotels/motels in Southern California, wherein it was agreed that plaintiff would be responsible for the management of defendants’ Quality Inn hotel/motel in Burbank, and their Quality Inn and Suites hotel/motel located in Camarillo.  Plaintiff alleges that under the agreement he was entitled to an hourly wage and a 10% commission of gross revenue for each hotel/motel, to be paid three years after entering the contract.   It is also alleged that plaintiff would be allowed to move with his family to defendants’ real property located close to the Quality Inn Burbank, with plaintiff to take possession of the rented property for the seven-year duration of the contract without payment of rent and utilities.  The parties agreed that plaintiff could live at the rented property until he ceased to work under the contract or was terminated for any justifiable reason, and that if terminated, plaintiff would be entitled to twelve months’ notice to vacate the rented property.  
Plaintiff alleges that plaintiff performed under the contract, significantly increasing the gross revenues of the hotels/motels, and in January of 2015 entered into a separate agreement for plaintiff to take over and manage defendants’ Travelodge Burbank, which also included an agreement for paying a commission.  
Plaintiff alleges that defendants would pay plaintiff late or not pay the monthly agreed upon stipends, and did not pay plaintiff overtime, or the required minimum wage.
It is also alleged that defendant Govind ordered plaintiff to obtain workers’ compensation insurance coverage in his own name, and when plaintiff declined began to harass plaintiff by threatening to terminate him and calling him names in the presence of other employees.   Plaintiff alleges that he was made to sign papers in blank at the beginning of his employment, as Govind had a practice of taking signatures of new employees and later using those signatures on agreements drafted by Govind.   Plaintiff alleges that defendant instructed plaintiff to commit acts that violated the law such as preparing false statements to be submitted in workers compensation claims, or forging documents in civil cases.   Plaintiff alleges that when he refused to commit the illegal acts, defendants decided to terminate his employment, and have otherwise breached the contract by failing to pay the commissions due.   
Plaintiff alleges that after he filed the initial complaint in this action he was inundated with numerous requests by defendants that plaintiff dismiss his lawsuit, and on March 8, 2018, plaintiff received a letter terminating his employment without justifiable reasons, but because plaintiff was about to testify regarding defendant Govind’s fraud in forging documents and signatures of employees who sued defendants for violation of various wage laws.  On the same day plaintiff’s employment was terminated, defendant Govind posted a thirty-day notice for plaintiff and his family to vacate and quit the rented property.   
Plaintiff also alleges that in a further effort to harass plaintiff, defendant Govind filed a request for restraining order seeking to restrain plaintiff from his place of residence, but the court denied the request for a temporary restraining order until the day of the hearing, and before the hearing Govind dismissed the case, because it was baseless.  
Defendants Prashant Vaghashia and Mita Vaghashia have filed a cross-complaint for equitable indemnity and declaratory relief against cross-defendants Govind Vaghashia and the Vaghashia Family Partnership Limited, alleging that cross-complainants were in no way connected with the termination of plaintiff’s employment or of any of the acts or conduct complained of in the complaint, but that any injuries or damages alleged will be founded on the fault of cross-defendants.  
Defendants Vaghashia Family Limited Partnership, Govind Vaghashia and Sonal Vaghasia filed a special motion to strike the fifth and tenth causes of action of the first amended complaint (anti-SLAPP), which was heard on June 22, 2018.  The motion was granted as to the fifth cause of action for Injunction Relief and denied as to the tenth cause of action for Harassment. The motion was also denied with respect to a request to strike specific allegations in the pleading in connection with the harassment claim.  
Defendants appealed the denial of the special motion to strike.  Remittitur was received by this court on July 15, 2020.  The court of appeal, in an unpublished decision, affirmed the trial court’s order.  The disposition states, “The order is affirmed. Rakesh Kothari is awarded his costs on appeal.”   
ANALYSIS:
Plaintiff Kothari seeks attorneys’ fees for the expense of defending against the appeal, as well as for bringing this motion for fees. 
With respect to attorneys’ fees as costs, CRC Rule 8.278(d)(2) states: “Unless the court orders otherwise, an award of costs neither includes attorney’s fees on appeal nor precludes a party from seeking them under rule 3.1702.”   
Under CCP ; 1032, a prevailing party in an action is entitled to allowable costs.    
Under CPC section 1032(b), “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”  Section 1033.5 (a) provides that an allowable cost under ;1032 includes:
“(10) Attorney’s fees, when authorized by any of the following:
(A) Contract
(B) Statute 
(C) Law.”    
Here, the motion curiously does not indicate how attorney’s fees are authorized in this case.  No contract, statute, or law is specified in the moving papers pursuant to which fees, as opposed to costs, would be authorized.  The motion merely argues that the appellate court entered a ruling that plaintiff is the prevailing party.  This is not sufficient alone to give rise to grounds for an award of attorney’s fees as costs. 
The moving papers do not reference the statute under which fees could be available, CCP ; 425.16, pertaining to special motions to strike, which provides, in pertinent part:
“(c)(1) Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.  If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.”
[Emphasis added].
 A prevailing plaintiff must therefore show the motion is frivolous or solely intended to cause delay to be entitled to fees.  The court of appeal in Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, in determining whether the anti-SLAPP statutory scheme provides for reciprocal fee awards, noted:
“A plaintiff who prevails by defeating the motion to strike is not entitled to recover fees and costs under the anti-SLAPP statute simply by prevailing on the motion. Under section 425.16, subdivision (c) the plaintiff may recover fees and costs only by showing that the defendant's special motion to strike was frivolous or solely intended to cause unnecessary delay within the meaning of section 128.5.”
Dowling, at 1432.  
At a minimum, the burden should be fairly high for a prevailing plaintiff or cross-complainant, since such a party does not enjoy the status of a prevailing defendant in protecting public policy. 
The moving papers here merely argue that plaintiff is entitled to fees by prevailing on the motion and the appeal of that motion, which is not a sufficient ground for an award of fees to a prevailing plaintiff.  The motion accordingly fails to meet plaintiff’s burden on this motion to show entitlement to fees under statute, or to support a trial court finding that the motion to strike or even the appeal of that motion was frivolous or solely intended to cause unnecessary delay.  The motion accordingly is denied. 
The opposition also argues that the motion should be denied as untimely.  The argument is based on CRC Rule 3.1702, which provides, in pertinent part:
“(b) Attorney's fees before trial court judgment
(1) Time for motion
A notice of motion to claim attorney's fees for services up to and including the rendition of judgment in the trial court--including attorney's fees on an appeal before the rendition of judgment in the trial court--must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case or under rules 8.822 and 8.823 in a limited civil case….
(c) Attorney's fees on appeal
(1) Time for motion
A notice of motion to claim attorney's fees on appeal--other than the attorney's fees on appeal claimed under (b)--under a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1) in an unlimited civil case or under rule 8.891(c)(1) in a limited civil case.”
The argument is based on subdivision (c) of the statute, when the fees sought here appear to be sought as “attorney's fees on an appeal before the rendition of judgment in the trial court,” under subdivision (b).    
CRC Rule 8.104, pertaining to unlimited civil actions, provides that an appeal must be filed 60 days after the superior court clerk serves on the party a Notice of Entry of judgment, or the party serves or is served by a party with a document entitled Notice of Entry of judgment, or within 180 days after entry of judgment.  CRC Rule 8.108 expands the deadlines in certain instances not applicable here, such as where a motion for new trial, to vacate the judgment, for JNOV or for reconsideration are filed.  
There were no notices served here with respect to the appeal, and it would appear that the 180-day time limit applies.  
Here, the remittitur was issued July 15, 2020.  
Any motion for fees was accordingly to be filed within 180 days, by January 11, 2021.   
This motion was filed on October 28, 2020, with a proof of service showing it was served on that date as well.  Evidently the motion was not served that date, but plaintiff agreed to continue the hearing due to improper service.  [Pham Decl., para. 5].  There is no indication of when service was actually made, but no showing that it was not before January 15, 2021.  The court under the circumstances will not deny the motion as untimely but will deny it on its merits. 
The opposition also requests that the court set an OSC hearing to determine whether plaintiff and counsel should be sanctioned for bringing this frivolous motion in violation of CCP section 128.7.  If defendants are interested in such relief, such relief should have been sought under the statutory provisions of CCP section 128.7.  The court will not issue an OSC here. 
RULING:
Motion for Award of Attorneys’ Fees and Costs Pursuant to Order After Appeal is DENIED. 
The motion fails to establish the entitlement to fees, as opposed to costs, as the prevailing party on the subject appeal. Specifically, no contract, statute or law authorizing such fees is cited or discussed in the moving papers.  To the extent fees are sought under the statutory provisions governing special motions to strike, plaintiff has failed to address this statute, and has failed to submit any legal argument or analysis to support a trial court finding that the special motion to strike was frivolous or was solely intended to cause unnecessary delay, as required under CCP section 425.16.
Request in the opposition for OSC is DENIED.
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES 
Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance.  Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00.   Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court.  Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff.  If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative. 


Case Number: ****7612    Hearing Date: February 26, 2021    Dept: D


Case Number: EC068454    Hearing Date: February 26, 2021    Dept: D

TENTATIVE RULING
Calendar:    20
Date:       2/26/2021
Case No:      EC068454 Trial Date: July 26, 2021
Case Name: Artisan Cheese Gallery, LLC v. Artisan Cheese Gallery, Inc.  
MOTIONS TO COMPEL COMPLIANCE WITH REQUEST FOR PRODUCTION OF DOCUMENTS (2)
(CCP ; 2031.320, 2023.010 et seq)
Moving Party: Plaintiff Artisan Cheese Gallery, LLC 
Responding Party: Defendant Shelley Janson 
Defendant Artisan Cheese Gallery, Inc. 
RELIEF REQUESTED:
Orders compelling compliance with document production by producing documents 
FACTUAL BACKGROUND:
Plaintiff Artisan Cheese Gallery, LLC alleges that in April 2015 plaintiff entered into an agreement to sell to defendant Artisan Cheese Gallery, Inc. a retail wine and cheese specialty store in Studio City.  The purchase, promissory note and security agreement were guaranteed by defendant’s Artisan’s principal, defendant Shelley Janson.   
Plaintiff alleges that Artisan failed to make payments on the original note, as well as for perishable inventory and other charges, disputing the amounts then due and owing, as the result of which the parties submitted the dispute to mediation.  The mediation resulted in a Stipulation for Settlement, which modified that repayment and interest terms in a second note, and a new security agreement, and another personal guaranty.   Plaintiff alleges that defendants have breached the settlement agreement by again defaulting in their obligations under the original and second notes. 
ANALYSIS:
These motions are brought by plaintiff to compel each of the defendants to produce documents pursuant to their written representations that they would produce for inspection certain documents and things.   The motions are brought under CCP section 2031.320, which provides, in pertinent part:
“If a party filing a response to a demand for inspection, copying…thereafter fails to permit the inspection, copying…in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.”
The motions indicate that in response to requests for production with respect to gift certificates, defendants represented that they would not release custody or original documents but would make documents available for in-person inspection by plaintiff and its counsel, but despite this promise, have failed to produce the responsive records.   [Manning Decl. para. 3, Ex. C].  
This appears sufficient to show that the parties filing responses to the demands for inspection thereafter failed to permit inspection in accordance with the statements of compliance. 
There has been no timely opposition to the motions, and plaintiff has filed Notice of No Oppositions indicating defendants have not filed or served timely written oppositions to the two motions.   The relief appears appropriately sought and the motions accordingly are granted. 
Sanctions 
Plaintiff seeks sanctions.  CCP ; 2031.320 (b) provides that the court “shall impose a monetary sanction...against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” 
Under CCP ; 2023.010, misuse of the discovery process includes “(d) failing to respond or to submit to an authorized method of discovery.”  Where there has been a misuse of the discovery process, under Section 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”  
Under CRC Rule 3.1348(a): “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”  (Emphasis added). 
The burden is on the party subject to sanctions to show substantial justification or injustice.  Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1436.  
Here, defendants failed to comply with their obligations to produce documents as promised, and have not opposed the motions, so have not met their burden of showing that conduct was justified.   Defendants should be responsible for reimbursing the cost of having to bring these motions.   Sanctions are awarded to plaintiff.  The sanctions requested are $4,320 for two motions, which is $2,160 for each motion.   This amount is high given the duplicative nature of the motions, and the lack of opposition, and the brief notice concerning that circumstance in lieu of replies.  The court awards total attorney time for the one motion by defendant Artisan Cheese Gallery, Inc. in the amount of 4 hours at $400.00 per hour for total attorneys’ fees of $1,600.00 plus costs.  
RULING:
[No Opposition]
UNOPPOSED Motion to Compel Compliance with Demand for Production of Documents, Set One, to Defendant Artisan Cheese Gallery, Inc. is GRANTED. 
Defendant Artisan Cheese Gallery, Inc. is ordered to produce documents or permit the promised inspection and copying in response to Plaintiff’s Request for Production of Documents, Set No. One, Demands Nos. 1 and 2.  Production or Inspection is to occur within five days at a site designated by plaintiff.   
Monetary sanctions requested by moving party:  Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motions is $1,600.00 (4.0 hours @ $400/hour) (5.25 hours requested) plus costs of $60 filing fee for each motion [Amount Requested $2,160], which sum is to be awarded in favor of plaintiff Artisan Cheese Gallery, LLC, and against defendant Artisan Cheese Gallery, Inc., payable within 30 days.  CCP sections 2031.320 (b), 2023.010(d), 2023.030(a), and CRC Rule 3.1030(a).
The Court notes that after the deadline for filing opposition and after the Court had considered the two discovery motions unopposed, defendant Shelley Janson filed with the Court a Notice of Stay of Proceedings, indicating that a bankruptcy case filing has been made by defendant Shelley Marlene Janson on February 19, 2021.  No such bankruptcy stay evidently applies to defendant Artisan Cheese Gallery, Inc. 
The Motion to Compel Compliance with Demand for Production of Documents, Set One, to Defendant Shelley Janson ONLY is STAYED.  
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES 
Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance.  Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00.   Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court.  Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff.  If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative. 


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