This case was last updated from Los Angeles County Superior Courts on 09/27/2020 at 18:30:02 (UTC).

SPEEDY FUEL INC VS GILBARCO INC ET AL

Case Summary

On 01/26/2017 SPEEDY FUEL INC filed a Contract - Debt Collection lawsuit against GILBARCO 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 DANIEL S. MURPHY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8304

  • Filing Date:

    01/26/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Debt Collection

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DANIEL S. MURPHY

 

Party Details

Plaintiff, Petitioner, Cross Plaintiff and Cross Defendant

SPEEDY FUEL INC

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

BANK OF AMERICA MERCHANT SERVICES LLC

ARROWHEAD CREDIT UNION

PANTOJA JOSE J.

CITIBANK NA

CORONA FRANCISCO

JPMORGAN CHASE

GILBARCO INC

WELLS FARGO BANK N.A.

LARA MARIO

ORTIZ FERNANDO

ESCALANTE TRUCKING

OSORIO-BRETON CARLOS F

GUTIERREZ MONICA

VILLALVAZO RIGOBERTO AKA RIGOBERT VILLALVAZO

GALVEZ SYLVIA [DOE 1206]

CORONADO ROGELIO M

MARTINEZ LOURDES

TREJO JOSE

SPEEDY FUEL INC

FH INTERNATIONAL SERVICE STATION MAINTENANCE INC.

Attorney/Law Firm Details

Defendant and Plaintiff Attorneys

REYNA DEHART KRISTIN NELL

REES SAMUEL T.

REES SAMUEL TASKER

Plaintiff and Petitioner Attorney

REES SAMUEL T.

Defendant and Cross Plaintiff Attorneys

STRICKLAND JULIA B. ESQ.

BEEBE TOD V. ESQ.

EIDEL MICHAEL LEE

GROTZINGER JORDAN D. ESQ.

FETTERLY JONATHAN

GRANT JEFFREY ESQ.

GREENBERG TRAURIG LLP

DURAN MANUEL ESQ.

TOLMAS EDWIN

MEYEN VICTOR B.

STOLL LAURA A.

VU ROMAN CHRISTIAN

MANSUKHANI ROGER M. ESQ.

DEZIEL COLLEEN A. ESQ.

MANSUKHANI ROGER M.

DEZIEL COLLEEN ANN ESQ.

REYNA DEHART KRISTIN NELL

REYNA DEHART KRISTIN N.

 

Court Documents

STATUS CONFERENCE REPORT OF JPMORGAN CHASE BANK, N.A.

1/19/2018: STATUS CONFERENCE REPORT OF JPMORGAN CHASE BANK, N.A.

ORDER ON COURT FEE WAIVER -

8/22/2018: ORDER ON COURT FEE WAIVER -

OBJECTION AND NOTICE OF COUNTER-RULINGS AT AUGUST 6 STATUS CONFERENCE

8/23/2018: OBJECTION AND NOTICE OF COUNTER-RULINGS AT AUGUST 6 STATUS CONFERENCE

Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE; HEARING ON MOTION TO BIFURCATE; HEA...)

8/17/2020: Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE; HEARING ON MOTION TO BIFURCATE; HEA...)

Supplemental Declaration - SUPPLEMENTAL DECLARATION OF MICHAEL EIDEL IN SUPPORT OF THE BAMS PARTIES' REPLY IN SUPPORT OF THEIR MOTION FOR SANCTIONS AGAINST PLAINTIFF SPEEDY FUEL, INC.

11/5/2019: Supplemental Declaration - SUPPLEMENTAL DECLARATION OF MICHAEL EIDEL IN SUPPORT OF THE BAMS PARTIES' REPLY IN SUPPORT OF THEIR MOTION FOR SANCTIONS AGAINST PLAINTIFF SPEEDY FUEL, INC.

Proof of Service by Mail

8/2/2019: Proof of Service by Mail

Proof of Service by Substituted Service - AMENDED PROOF OF SERVICE SUMMONS

4/5/2019: Proof of Service by Substituted Service - AMENDED PROOF OF SERVICE SUMMONS

Proof of Service by Substituted Service - AMENDED PROOF OF SERVICE SUMMONS

4/5/2019: Proof of Service by Substituted Service - AMENDED PROOF OF SERVICE SUMMONS

Request for Entry of Default / Judgment

4/19/2019: Request for Entry of Default / Judgment

Request for Entry of Default / Judgment

5/7/2019: Request for Entry of Default / Judgment

Proof of Service by Substituted Service

2/6/2019: Proof of Service by Substituted Service

Proof of Personal Service

2/6/2019: Proof of Personal Service

Proof of Service by Substituted Service

2/6/2019: Proof of Service by Substituted Service

Declaration re: Due Diligence

1/8/2019: Declaration re: Due Diligence

PEREMPTORY CHALLENGE TO JUDICIAL OFFICER (CODE CIV. PROC., 170.6)

2/27/2017: PEREMPTORY CHALLENGE TO JUDICIAL OFFICER (CODE CIV. PROC., 170.6)

ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANT CITIBANK, N.A. TO PLAINTIFF'S FIRST AMENDED COMPLAINT FOR DAMAGES

11/9/2017: ANSWER AND AFFIRMATIVE DEFENSES OF DEFENDANT CITIBANK, N.A. TO PLAINTIFF'S FIRST AMENDED COMPLAINT FOR DAMAGES

1,457 More Documents Available

 

Docket Entries

  • 12/03/2020
  • Hearing12/03/2020 at 08:30 AM in Department 32 at 111 North Hill Street, Los Angeles, CA 90012; Trial Setting Conference

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  • 12/03/2020
  • Hearing12/03/2020 at 08:30 AM in Department 32 at 111 North Hill Street, Los Angeles, CA 90012; Trial Setting Conference

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  • 10/28/2020
  • Hearing10/28/2020 at 08:30 AM in Department 32 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 08/17/2020
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Rescheduled by Party

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  • 08/17/2020
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Hearing on Motion to Bifurcate - Not Held - Taken Off Calendar by Party

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  • 08/17/2020
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Hearing on Motion for an Order to Show Cause Re: Contempt (CCP 1209) - Not Held - Taken Off Calendar by Party

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  • 08/17/2020
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Status Conference (as to the Remaining Banks) - Held

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  • 08/17/2020
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Status Conference (of All Parties) - Held

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  • 08/17/2020
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Hearing on Motion to Compel Further Discovery Responses - Held - Motion Denied

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  • 08/17/2020
  • Docketat 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Hearing on Motion - Other (Notice of Motion and Motion to Alter Trial Plan and Lift Discovery Stay as to Bank of America N.A. and Memorandum of Points and Authorities in Support) - Held

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1,632 More Docket Entries
  • 02/27/2017
  • DocketProof-Service/Summons; Filed by Speedy Fuel, Inc (Plaintiff)

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  • 02/27/2017
  • DocketProof-Service/Summons; Filed by Speedy Fuel, Inc (Plaintiff)

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  • 02/27/2017
  • DocketPEREMPTORY CHALLENGE TO JUDICIAL OFFICER (CODE CIV. PROC., 170.6)

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  • 02/27/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 02/27/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 02/10/2017
  • Docketat 00:00 AM in Department 309; (Order-Complex Determination; Case Determined to be non-Complex) -

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  • 02/10/2017
  • DocketMinute order entered: 2017-02-10 00:00:00; Filed by Clerk

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  • 01/26/2017
  • DocketCOMPLAINT FOR DAMAGES (JURY TRIAL DEMANDED)

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  • 01/26/2017
  • DocketSUMMONS

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  • 01/26/2017
  • DocketComplaint; Filed by Speedy Fuel, Inc (Plaintiff)

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Tentative Rulings

Case Number: BC648304    Hearing Date: October 28, 2020    Dept: 32

SPEEDY FUEL, INC.,

Plaintiff,

v.

GILBARCO, INC, et. al.

Defendants.

Case No.: BC648304

Hearing Date: October 28, 2020

[TENTATIVE] order RE:

bams’s motion to compel speedy’s further responses to special interrogatories, set two, nos. 32-35

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.

Discussion

BAMS moves to compel Speedy to provide further responses to BAMS’s Special Interrogatories (SI), Set Two, Nos. 32-35.

SI Nos. 32-34 ask Speedy to “[s]et forth all contact information for” Anne Termendzhyan (Anne), Anush Babajanyan (Anush), and Emma Matevosyan (Emma), “including but not limited to all past and present telephone numbers, email addresses, residence addresses, business addresses, employers, Facebook, and other social media names and/or addresses.” Anne, Anush, and Emma are Speedy’s former employees. (Eidel Decl. Exs. C, S, X, Y, AA.)

SI No. 35 asks Speedy to “[s]tate the full names and all known contact information including but not limited to all past and present telephone numbers, email addresses, residence addresses, business addresses, employers, Facebook, and other social media names and/or addresses, for every cashier who worked at any time at Speedy locations 1 (Lorena) and 2 (Indiana) from January 2013 to December 2015.”

In response, Speedy interposed several objections, most notably privacy. Speedy bears the burden of justifying these objections. (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-21.)

In opposing this motion, Speedy “does not dispute that BAMS has a right to discovery of a potential witness’ contact information, usually limited [to] the witness’ last known address and perhaps telephone number.” Speedy “disputes that BAMS is entitled in this case to an employee’s past telephone numbers, past or present email addresses, past residence addresses, past or present business addresses, past or present employers, or past or present Facebook or other social media names and/or addresses.”

A party asserting a right to privacy must establish three elements: (1) a legally protected privacy interest, (2) an objectively reasonable expectation of privacy in the given circumstances, and (3) a threatened intrusion that is serious. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-40).) If these three elements are met, the court must balance the parties’ competing considerations for and against disclosure of the privacy-protected information. (Id. at 552.) Under this balancing test, a compelling interest is required to justify an obvious invasion of an interest fundamental to personal autonomy. (Id. at 556.) However, whenever lesser interests are at stake, “the strength of the countervailing interest sufficient to warrant disclosure of private information var[ies] according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” (Ibid.)

Speedy’s privacy objection fails because it does not meet two of the three Hill prongs.

As Speedy notes, there is a legally protected privacy interest in the contact information sought by these interrogatories. (Williams, supra, 3 Cal.5th at 554 (“While less sensitive than one’s medical history or financial data, ‘home contact information is generally considered private.’ ”).)

However, the employees do not have an objectively reasonable expectation of privacy in this contact information in the given circumstances. “Central to the discovery process is the identification of potential witnesses. ‘The disclosure of the names and addresses of potential witnesses is a routine and essential part of pretrial discovery.’ ” (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1250-51.) This is particularly true of percipient witnesses who will likely be deposed. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 8:299.5.)

In this case, BAMS has submitted substantial evidence showing that the employees were involved in the incidents at issue in this lawsuit and have probative testimony about the same.

Anne: Anne began working for Speedy in September 2007. (Eidel Decl. Ex. C.) Anne performed accounting and administrative functions for Speedy. (Eidel Decl. Ex. S, p. 261.) A search for the word “Anne” in Speedy’s document production resulted in hits on 611 documents. (Eidel Decl. ¶ 8.) Anne communicated with BAMS during the setup of the Passport System at Speedy #1. (See Eidel Decl. Ex. E.) BAMS informed Anne via email in November 2014 that Speedy was not permitted to charge a fee on debit transactions. (Eidel Decl. Ex. F.) Anne forwarded this email to Grigor Termendjian (Grigor) in September 2015. (Ibid.) Anne informed BAMS to use only the email address “anne@speedyfuel.com” to communicate with Speedy. (Eidel Decl. Ex. G.) Anne reviewed the “Shift Forms” that listed the tally of credit and debit card transactions. (Eidel Decl. Ex. T, pp. 17-18.) Anne communicated with BAMS after the alleged banking problem was discovered in August 2015 and internally at Speedy regarding those issues. (See, e.g., Eidel Decl. Exs. I-J.) Anne forwarded emails to herself and others at Speedy after August 24, 2015 that related to BAMS and specifically the issue with the allegedly unpaid debit transactions. (Eidel Decl. Exs. F, L.) In opposing this motion, Speedy states that Anne worked in Speedy’s office and “authored or received potentially relevant emails.” (Opp. at 6.)

Anush: Anush did Speedy’s office work and ran its accounting department. (Eidel Decl. Ex. S, pp. 28, 229-30.) Anush’s name appears on 1,300 documents produced by Speedy in this action. (Eidel Decl. ¶ 34.) Anush was one of the accounting people in the Speedy office who received the cashiers’ tallies of receipts for debit and credit transactions at Speedy #1 and #2 and was one of the two people who may have been responsible for reviewing and reconciling them. (Eidel Decl. Ex. S, pp. 122, 157, 190, 256-57.) Anush was involved in attempting to determine why Speedy’s bank accounts were so low in August 2015. (Eidel Decl. Ex. E.) Anush was involved in, and communicated with BAMS about, attempting to recover money for the unsuccessful debit transactions after they were discovered in August 2015. (Eidel Decl. Exs. S, pp. 117-18, 156-57; T, pp. 45-46; EE.) In opposing this motion, Speedy states that Anush “was responsible for securing and reviewing financial information from the stations, primarily the End of Shift reports generated by the Passport System.” (Opp. at 8.) Speedy also states that Anush “was responsible for accounting for the financial results of station operations although some of this work was delegated to other staff members.” (Ibid.) Speedy acknowledges that Anush can testify “as to her role in [the discovery of the rejected transactions] and why she did not learn of these rejected transactions sooner.” (Ibid.)

Emma: Emma is a former Speedy employee who worked in accounting and was the Speedy contact person designated in the Merchant Services Agreements with BAMS. (Eidel Decl. Exs. S, p. 93; Y; Z.) Emma communicated directly with BAMS about the paperwork for the Merchant Services Agreements before their execution. (Eidel Decl. Ex. BB.) Emma’s name appears on over 800 documents produced by Speedy in this case. (Eidel Decl. ¶ 35.) In opposing this motion, Speedy states that Emma “has relevant information on the contract formation and the fraud perpetrated on Speedy.” (Opp. at 8.)

Cashiers: Speedy expressly alleges that Speedy’s cashiers were involved in making the purported contracts underlying its claims. (FAC ¶¶ 40, 43.) In its opposition brief, Speedy states that the cashiers “have information as to their interface with debit card customers, the reports which the Passport system could and did generate and whether or not they were aware of any rejected transactions.” (Opp. at 9.)

Because these employees likely possess important testimony to this lawsuit, BAMS is entitled to discover their contact information so that BAMS can depose them. In light of their involvement in these transactions, the employees cannot reasonably expect their contact information not to be disclosed.

Furthermore, the threatened intrusion — disclosure of contact information — is not serious in light of the parties’ protective order. (See Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 38 (“[I]f intrusion is limited and confidential information is carefully shielded from disclosure except to those who have a legitimate need to know, privacy concerns are assuaged.”).)

Assuming arguendo that Speedy could satisfy Hill’s three prongs, the balancing test also favors disclosure of the contact information. BAMS’s interest in this contact information outweighs the employees’ privacy interests in the same because this information is highly relevant to this case, the privacy invasion is minimal with the protective order, and there is no reasonable alternative to disclosure of this information.

The Court rejects Speedy’s argument that BAMS is not entitled to contact information beyond the employees’ addresses and telephone numbers. The other contact information sought by BAMS — email addresses, business addresses, and identity of social media accounts — is not meaningfully different than the employees’ address and telephone information. All of this information enables BAMS to contact the employees and investigate their relationship to Speedy.

Speedy anticipates that BAMS will eventually depose Anne about her father (and Grigor’s brother) Levon Termendzhyan (Levon). Levon was convicted for money laundering in a massive biofuel tax scheme in March 2020. (Eidel Decl. Exs. O, P.) The indictment in the criminal case against Levon alleges that Levon “had an interest in or controlled several fuel-related companies in the United States,” including Speedy. (Eidel Decl. Ex. Q, ¶ 7.) The indictment further alleges that Levon’s share of the proceeds from the scheme were transferred to him personally or to entities that he controlled, such as “Speedy Lion Renewal Investments LLC,” an entity located at the Speedy Fuel #1 address. (Eidel Decl. Exs. Q, ¶ 34; V.)

Speedy asks the Court to preclude BAMS from asking Anne questions about Levon or his companies. BAMS responds, and the Court agrees, that Anne may properly be asked about facts pertaining to the criminal biofuel fraud scheme because those facts may pertain directly to the claims and defenses in this case. For example, Speedy’s involvement in and assistance with this criminal enterprise might support BAMS’s unclean hands defense.

Speedy must provide further responses to BAMS’s SI, Set Two, Nos. 32-35.

BAMS requests monetary sanctions against Plaintiff in the total amount of $4,450.24. BAMS is entitled to an award of monetary sanctions because Speedy unsuccessfully opposed this motion. (CCP § 2030.300(d).) Speedy’s opposition to this motion was not substantially justified because, among other things, Speedy conceded that (1) these employees have relevant testimony and (2) it is obligated to produce, at minimum, the employees’ phone numbers and addresses. In light of the thorough evidentiary showing made by BAMS in support of this motion, the amount of monetary sanctions requested is reasonable.

Conclusion

BAMS’s motion to compel Speedy’s further responses to SI, Set Two, Nos. 32-35 is granted. Speedy must serve further responses within 30 days.

BAMS’s request for monetary sanctions against Speedy is granted in the total amount of $4,450.24. Speedy must pay the monetary sanctions within 30 days.

Case Number: BC648304    Hearing Date: January 27, 2020    Dept: 32

SPEEDY FUEL, INC.,

Plaintiff,

v.

GILBARCO, INC, et. al.

Defendants.

Case No.: BC648304

Hearing Date: January 27, 2020

[TENTATIVE] order RE:

motion to set aside default judgment against (1) Samuel Juarez & pablo mejia trucking and (2) pablo mejia

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.

According to a proof filed on February 6, 2019, a registered process server sub-served process on Defendant Samuel Juarez & Pablo Mejia Trucking (“Mejia Trucking”) on January 20, 2019 by leaving the documents with Samuel Juarez, a person authorized to accept service on the company’s behalf. (Martin Decl. Ex. A.) On March 12, 2019, default was entered against Mejia Trucking. (Martin Decl. Ex. B.)

According to a proof filed on April 5, 2019, a registered process server sub-served process on Defendant Pablo Mejia (“Mejia”) on January 12, 2019 by leaving the documents with Jose Angel, a co-occupant of Mejia’s home. (Martin Decl. Ex. C.) On April 19, 2019, default was entered against Mejia. (Martin Decl. Ex. D.)

On August 22, 2019, default judgment was entered against (1) Mejia Trucking in the amount of $1,916.38, plus interest, and (2) Mejia in the amount of $5,866.90, plus interest.

DISCUSSION

Defendants Mejia and Mejia Trucking move pursuant to CCP section 473.5 to set aside the default judgments entered against them in this case.

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” of the action. (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).)

In support of this motion, Mejia and Samuel Juarez (“Juarez”) submit declarations. Mejia avers that he received the First Amended Summons (“FAS”) and FAC in the mail with a Notice of Acknowledgment of Receipt. (Mejia Decl. ¶ 2.) Mejia states that he showed the documents to his legal advisor who informed him to wait for Plaintiff’s agent to hand the documents to him personally or to someone at his business. (Ibid.) Mejia states that process was never personally served upon him in this action nor did anyone from his business deliver those documents to him. (Mejia Decl. ¶ 3.) Juarez acknowledges that he received service of the FAS and FAC in this action. (Juarez Decl. ¶ 2.) Juarez states that he could not access the proof of service filed in this action so he does not know “what kind of service has been filed against” him. (Juarez Decl. ¶ 3.)

Mejia and Mejia Trucking have not met their burden of proof in this motion. The critical question in assessing a motion brought under CCP section 473.5 is whether the defendant in default received “actual notice” of the action in time to defend the action. Both Mejia and Juarez implicitly acknowledge that they received actual notice of the action when they received the FAS and FAC in this action. (Mejia Decl. ¶ 2; Juarez Decl. ¶ 2.) Mejia’s and Juarez’s failure to disclose when they received these documents is a dispositive evidentiary defect. (See CCP § 473.5(b).) In any event, proofs of service of process fill in the gaps. (Evid. Code § 647 (establishing presumption that process server’s return is valid).) According to the Mejia and Mejia Trucking proofs, the process server mailed Mejia the documents after effectuating sub-service but before their defaults were entered. (Martin Decl. Exs. A, C.) These mailings explain why Mejia received the FAS and FAC in the mail. (See Mejia Decl. ¶ 2.) According to the Mejia Trucking proof, the process server left the FAS and FAC with Juarez before Mejia Trucking’s default was entered. (Martin Decl. Ex. A.) This explains why Juarez received the FAS and FAC. (See Juarez Decl. ¶ 2.) These proofs reflect that Mejia and Mejia Trucking received “actual notice” of this action with sufficient time to defend themselves.

CONCLUSION

Mejia’s and Mejia Trucking’s motion to set aside the default judgment is DENIED.

Case Number: BC648304    Hearing Date: January 06, 2020    Dept: 32

SPEEDY FUEL, INC.,

Plaintiff,

v.

GILBARCO, INC, et. al.

Defendants.

Case No.: BC648304

Hearing Date: January 6, 2020

[TENTATIVE] order RE:

motion to compel BAMS Parties to comply with deposition subpoena

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 various 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.

LEGAL STANDARD

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document … described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document… described in the deposition notice.” (CCP § 2025.450(a).) This motion shall set forth specific facts showing good cause justifying the production for inspection of any document described in the deposition notice. (CCP § 2025.450(b)(1).) This motion shall also be accompanied by a meet and confer declaration. (CCP § 2025.450(b)(2).)

If this motion is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2025.450(g)(1).)

DISCUSSION

Plaintiff moves to compel the compliance of Defendants First Data, BAMS, and Interlink (“BAMS Parties”) with Plaintiff’s deposition notice by producing PMK witnesses in response to 127 areas of inquiry and documents in response to 81 document requests. According to Plaintiff’s counsel, prior to bringing this motion, he engaged in lengthy meet-and-confer sessions with BAMS Parties’ counsel. (Rees Decl. ¶ 5.) These sessions led to an agreement to withdraw discovery related to its alter ego assertions but to no agreement that would avoid this motion. (Ibid.) Plaintiff’s counsel offers no further details about these meet-and-confer efforts and produces no records to substantiate those efforts.

BAMS Parties contend that the Court should deny this motion because Plaintiff’s meet-and-confer efforts were inadequate. BAMS Parties explain that their counsel met and conferred with Plaintiff’s counsel in-person for approximately 1.5 hours on July 18, 2019. (Eidel Decl. ¶ 4.) During this in-person meeting, the BAMS Parties proposed a two-step process whereby each BAMS Party would produce a PMK to testify on numerous topics designated by Plaintiff, and then Plaintiff’s counsel would advise whether he felt any topics remained to be addressed. (Ibid.) If Plaintiff’s counsel was dissatisfied, the parties would continue to meet-and-confer as to what additional depositions were required. (Ibid.) Per this proposed process, BAMS Parties agreed that Plaintiff would retain all rights to bring a motion to compel with respect to these topics and document requests. (Ibid.) In subsequent email correspondence, BAMS Parties noted their willingness to produce a witness to testify on numerous topics enumerated in the deposition notice, albeit with limitations, and to produce documents relating to each area of inquiry on which they had agreed to produce witnesses. (Eidel Decl. ¶ 4, Ex. C.) Plaintiff’s counsel responded with a different understanding of the parties’ meeting and thereafter maintained that Plaintiff is entitled to depose PMK witnesses on each topic and obtain documents for each document request. (Eidel Decl. ¶¶ 5-13.)

BAMS Parties’ contention is well-taken. Plaintiff has not complied with its meet-and-confer obligation. A motion under CCP section 2025.450 “shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2025.450(b)(2).) A meet and confer declaration under CCP section 2016.040 is one that “state[s] facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” “The level of effort at informal resolution which satisfies the ‘reasonable and good faith attempt’ standard depends upon the circumstances. In a larger, more complex discovery context, a greater effort at informal resolution may be warranted.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) Ultimately, “[t]he purpose of the meet and confer requirement is to force lawyers to reexamine their positions, and to narrow their discovery disputes to the irreducible minimum, before calling upon the court to resolve the matter.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 8:1159 (emphasis added).)

As an initial matter, Plaintiff failed to comply with CCP section 2025.450(b)(2) by failing to submit a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in this motion. More important, however, BAMS Parties have shown that Plaintiff failed to comply with the spirit of the statute’s meet-and-confer obligation. BAMS Parties agreed to produce witnesses on several deposition topics without limitation. At minimum, Plaintiff should have acknowledged these concessions and limited the scope of this motion to what is actually at issue. Furthermore, BAMS Parties proposed a two-step deposition process that, insofar as the Court can glean, would greatly reduce the scope of this motion without causing Plaintiff to suffer any prejudice. Plaintiff has not offered a persuasive reason for declining this proposal, and the Court views this proposal as a reasonable means of resolving this discovery dispute.

Given Plaintiff’s failure to comply with its meet-and-confer obligation, this motion is DENIED WITHOUT PREJUDICE. The Court welcomes the parties to schedule an informal discovery conference to resolve these issues.