This case was last updated from Los Angeles County Superior Courts on 09/30/2022 at 19:09:05 (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 Judges overseeing this case are DANIEL S. MURPHY, TIMOTHY PATRICK DILLON and JAMES C. CHALFANT. 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

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DANIEL S. MURPHY

TIMOTHY PATRICK DILLON

JAMES C. CHALFANT

 

Party Details

Cross Plaintiff, Plaintiff and Cross Defendant

SPEEDY FUEL INC

Defendant, Cross Plaintiff and Appellant

GILBARCO INC

Cross Defendant and Respondent

FH INTERNATIONAL SERVICE STATION MAINTENANCE INC.

Cross Defendants, Cross Plaintiffs and Appellants

BANK OF AMERICA MERCHANT SERVICES LLC

SPEEDY FUEL INC

GILBARCO INC

Cross Defendants and Cross Plaintiffs

BANK OF AMERICA MERCHANT SERVICES LLC

SPEEDY FUEL INC

FH INTERNATIONAL SERVICE STATION MAINTENANCE INC.

27 More Parties Available

Attorney/Law Firm Details

Defendant and Plaintiff Attorneys

REYNA DEHART KRISTIN NELL

REES SAMUEL TASKER

REES SAMUEL T.

Petitioner and Plaintiff 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

REES SAMUEL TASKER

REYNA DEHART KRISTIN N.

 

Court Documents

Reply - REPLY SPEEDYS REPLY MEMORANDUM IN SUPPORT OF ITS MOTION IN LIMINE AND DECLARATION OF SAMUEL T. REES

3/7/2022: Reply - REPLY SPEEDYS REPLY MEMORANDUM IN SUPPORT OF ITS MOTION IN LIMINE AND DECLARATION OF SAMUEL T. REES

Proof of Service by Mail

6/13/2022: Proof of Service by Mail

Proof of Service by Mail

6/13/2022: Proof of Service by Mail

Objection - OBJECTION DEFENDANT GILBARCO INC.S OBJETION TO PLAINTIFFS UNTIMELY REPLY BRIEF IN SUPPORT OF MOTION FOR NEW TRIAL TO INCLUDE PREJUDGMENT INTEREST IN THE JUDGMENT ON SPECIAL VERDICT

6/13/2022: Objection - OBJECTION DEFENDANT GILBARCO INC.S OBJETION TO PLAINTIFFS UNTIMELY REPLY BRIEF IN SUPPORT OF MOTION FOR NEW TRIAL TO INCLUDE PREJUDGMENT INTEREST IN THE JUDGMENT ON SPECIAL VERDICT

Reply - REPLY BRIEF IN SUPPORT OF DEFENDANT GILBARCO, INC.S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

6/13/2022: Reply - REPLY BRIEF IN SUPPORT OF DEFENDANT GILBARCO, INC.S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

Reply - REPLY OF L&S MAINTENANCE IN SUPPORT OF MOTION FOR ATTORNEYS FEES AND COSTS UNDER CONTRACT AND CIVIL SECTION CODE SECTION 3344

6/13/2022: Reply - REPLY OF L&S MAINTENANCE IN SUPPORT OF MOTION FOR ATTORNEYS FEES AND COSTS UNDER CONTRACT AND CIVIL SECTION CODE SECTION 3344

Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER MOTION FOR DETERMINATION OF PRE-JUD...)

6/17/2022: Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER MOTION FOR DETERMINATION OF PRE-JUD...)

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

6/17/2022: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Notice of Rejection - Post Judgment

6/20/2022: Notice of Rejection - Post Judgment

Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

6/21/2022: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RULING ON SUBMITTED MATTER) OF 06/21/2022

6/21/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RULING ON SUBMITTED MATTER) OF 06/21/2022

Order - ORDER RE PLAINTIFF'S MOTION FOR NEW TRIAL TO INCLUDE PREJUDGMENT INTEREST

6/21/2022: Order - ORDER RE PLAINTIFF'S MOTION FOR NEW TRIAL TO INCLUDE PREJUDGMENT INTEREST

Notice - NOTICE OF ERRATA TO DEFENDANT GILBARCO, INC.S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

6/22/2022: Notice - NOTICE OF ERRATA TO DEFENDANT GILBARCO, INC.S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

Proof of Service by Mail

6/22/2022: Proof of Service by Mail

Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER FOR NEW TRIAL; HEARING ON MOTION FO...)

6/27/2022: Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER FOR NEW TRIAL; HEARING ON MOTION FO...)

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

6/27/2022: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

6/27/2022: Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

Writ of Execution - WRIT OF EXECUTION (LOS ANGELES )

6/28/2022: Writ of Execution - WRIT OF EXECUTION (LOS ANGELES )

1,745 More Documents Available

 

Docket Entries

  • 07/11/2023
  • Hearing07/11/2023 at 08:30 AM in Department 32 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 06/29/2023
  • Hearing06/29/2023 at 08:30 AM in Department 32 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 01/19/2023
  • Hearing01/19/2023 at 08:30 AM in Department 32 at 111 North Hill Street, Los Angeles, CA 90012; Trial Setting Conference

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  • 12/05/2022
  • Hearing12/05/2022 at 08:30 AM in Department 32 at 111 North Hill Street, Los Angeles, CA 90012; Status Conference

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  • 10/10/2022
  • Hearing10/10/2022 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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  • 09/16/2022
  • DocketCertificate of Mailing; Filed by Clerk

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  • 09/12/2022
  • Docketat 07:46 AM in Department 32, Daniel S. Murphy, Presiding; Court Order

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  • 09/12/2022
  • DocketMinute Order ( (Court Order Notice of settlement filed)); Filed by Clerk

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  • 09/12/2022
  • DocketNotice of Settlement; Filed by Bank of America, N. A. (Cross-Complainant)

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  • 09/12/2022
  • DocketCertificate of Mailing for ((Court Order Notice of settlement filed) of 09/12/2022); Filed by Clerk

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1,991 More Docket Entries
  • 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
  • DocketChallenge To Judicial Officer - Peremptory (170.6); 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
  • 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
  • DocketSUMMONS

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

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

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Tentative Rulings

Case Number: ****8304 Hearing Date: June 27, 2022 Dept: 32

speedy fuel, inc.

Plaintiff,

v.

GILBARCO, INC., et. al.

Defendants.

Case No.: ****8304

Hearing Date: June 27, 2022

[Tentative] ORDER RE:

Cr0ss-defendant L&S Maintenance and Cross-Defendant FH International motions for attorney fees

BACKGROUND

Plaintiff Speedy Fuel, Inc. (Speedy) operates two fuel service stations in the Los Angeles area. This action arises out of the credit card and debit card transaction systems at its stations. Plaintiff alleges that although various defendant banks approved certain credit card and debit card transactions, the defendant banks ultimately failed to transfer the approved amounts to plaintiff.

Speedy sued Gilbarco, Inc. (Gilbarco), among others, and Gilbarco filed a cross complaint against FH International Service Station Maintenance, Inc. (FHI) and L& S Maintenance (LSM) for contractual indemnity.

The jury found in favor of FHI and LSM and against Gilbarco on the claim for contractual indemnity.

LEGAL STANDARD

The prevailing party in “any action on a contract” shall be awarded reasonable attorney’s fees incurred to enforce that contract where the contract specifically provides for attorney’s fees. (Cal. Civ. Code 1717(a).) “When a party obtains a simple, unqualified victory by completely prevailing on or defeating all contract claims in the action and the contract contains a provision for attorney fees, section 1717 entitles the successful party to recover reasonable attorney fees incurred in prosecution or defense of those claims. (Scott Co. of California v. Blount, Inc. (1999) 20 Cal. 4th 1103, 1109.) “[I]n deciding whether there is a ‘party prevailing on the contract,’ the trial court is to compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources.” (Hsu v. Abbara (1995) 9 Cal. 4th 863, 876.)

ANALYSIS

LSM moves for an award of attorney fees in the amount of $50,957.56 and costs in the amount of $1,990.55.

FHI moves for an award of attorney fees in the amount of $54,600.00 and costs in the amount of $875.00.

A. Entitlement to Attorney Fees

LSM and FHI contend that they are the prevailing party in this action because the court entered judgment in their favor. The Court agrees. As such, Plaintiff is the prevailing party in this action entitled to a reasonable amount of attorney fees.

It is undisputed that the jury found in favor of FHI and LSM and against Gilbarco on the cross-complaint for contractual indemnity. It is also undisputed that the contract in question authorized attorney fees to the prevailing party at Paragraph 18(E) of the Customer-Specified Contractor Agreement. (See, Ex. A of Henderson’s Declaration and Ex. A of Ungar’s Declaration.) As such, pursuant to Civil Code 1717, plaintiff is entitled to recover its attorney fees.

B. Reasonableness of Fees

1. Reasonable Hourly Rates

LSM attorney Uleses Henderson billed $450.00 per hour for his work on this matter. FHI attorney Michael Ungar billed $350 per hour for his work on this matter.

“In determining hourly rates, the court must look to the ‘prevailing market rates in the relevant community.’” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 100.) In making this determination, “[t]he court may rely on its own knowledge and familiarity with the legal market.” (Ibid.)

The Court finds that the $450 billed by LSM attorney Uleses Henderson was a reasonable hourly rate in this case. The court finds that the $350 billed by FHI attorney Michael Ungar was a reasonable hourly rate in this case.

2. Hours Reasonably Expended

The total number of billable hours claimed by LSM attorney Uleses Henderson is 111.20. The total number of billable hours claimed by FHI attorney Michael Ungar is 140 hours.

Defendant claims that the number of hours billed is unreasonable and concerned unrelated matters.

The Court finds that the reasonable hours spent by LSM attorney Uleses Henderson in this matter is 111.20 hours. The Court finds that the reasonable hours spent by FHI attorney Michael Ungar is 120 hours. (The court notes that some of FHI’s billing was excessive, especially for an attorney as experienced as FHI’s counsel. (i.e., 15 hours of telephone calls with attorneys and client, 5 hours of emails; etc.)

C. Entitlement and Reasonableness of Costs

FHI requests a total of $875.00 in costs. Gilbarco does not dispute these costs and expenses.

LSM requests a total of $1,990.55 in costs. Gilbarco objects to $1,369.50 in deposition costs. The court finds that deposition costs are recoverable, and as such, LSM is awarded $1,990.55 in costs.

CONCLUSION

Based on the foregoing reasons, FHI’s motion for attorney fees and costs are GRANTED. The Court awards $42,000.00 in attorney fees and $875 in costs.

Based on the foregoing reasons, LSM’s motion for attorney fees and costs are GRANTED. The Court awards $50,040.00 in attorney fees and $1,990.55 in costs.

SPEEDY FUEL, INC.,

Plaintiff,

v.

GILBARCO, INC., et al.,

Defendants.

Case No.: ****8304

Hearing Date: June 27, 2022

[TENTATIVE] order RE:

defendant gilbarco, inc.’s motions for new trial and judgment notwithstanding verdict

BACKGROUND

This action was initiated in January 2017 by Plaintiff Speedy Fuel, Inc., and it arises from losses Plaintiff suffered due to unpaid fuel. Defendant Gilbarco, Inc. allegedly distributed faulty merchant software that caused payments to be rejected, resulting in no payment from Plaintiff’s customers. A judgment on special verdict was entered April 28, 2022, resulting in a judgment for Plaintiff Speedy Fuel against Defendant Gilbarco in the amount of $777,054.41.

On May 23, 2022, Defendant Gilbarco filed the instant motions for new trial and judgment notwithstanding verdict on the grounds that the jury verdict is unsupported by the evidence. Specifically, Defendant argues that Plaintiff failed to mitigate its damages and failed to prove the elements of breach of implied warranty. Defendant also argues that the verdict in favor of FHI on Defendant’s cross-claim for indemnity is erroneous because Plaintiff’s injuries resulted from the service contractors’ faulty installation rather than a defect in Defendant’s software.

LEGAL STANDARD

“The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days’ notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.” (Code Civ. Proc., 629, subd. (a).) “A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.” (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.)

A motion for new trial may be made on the grounds of, inter alia, excessive or inadequate damages and insufficiency of the evidence to justify the verdict. (Code Civ. Proc., 657.) “A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (Ibid.)

DISCUSSION

I. Mitigation of Damages

Defendant first argues that “Speedy could have avoided its damages with reasonable efforts or expenditures by performing industry-standard reconciliation processes,” which would have quickly revealed the uncollected transactions. (Def.’s Mtn. for Judgment Notwithstanding Verdict (“JNOV Mtn.”) 8:6-9.) Defendant points to evidence that Plaintiff had the reports and documentation on hand that would have exposed the subject transactions. (Id. at 8:9-9:16.) Defendant’s expert testified that Plaintiff could have compared the deposits reflected in bank statements with sales receipts or store close reports to determine if they matched. (Def.’s Ex. D, pp. 111-115, 126-134.) Plaintiff’s service contractors testified that they discuss uncollected transaction reports with their clients and emphasize the importance of the reports. (Def.’s Ex. C at 36:18-37:2, 102:12-14; Ex. D at 20:10-21:8.)

On the other hand, Plaintiff presented evidence that Speedy employees did perform reconciliation procedures. (Plntf.’s Ex. A at 129:21-25; Def.’s Ex. B at 52:28-54:13.) When Defendant’s expert was asked to compare a shift close report, a Bank of America account statement, and a BAMS statement, he was unable to identify any rejected transactions. (Plntf.’s Ex. H at 157:5-27.) One of the service contractors testified that he could not recall any customer asking for the uncollected transactions report to be programmed. (Def.’s Ex. C at 102:15-17.) Defendant’s software notified cashiers of “overrun” transactions. (Plntf.’s Ex. C at pp. 102-04.) Plaintiff was assured by BAMS that they would oversee the transactions. (Def.’s Ex. A at 135:1-11.)

Viewing the evidence in the light most favorable to Plaintiff, the jury was entitled to find that Plaintiff did not fail to mitigate its damages. (See Sweatman, supra, 25 Cal.4th at p. 68.) There is enough evidence for the jury to infer that Plaintiff did not fail to exercise reasonable diligence and reasonably relied on BAMS and Defendant’s software to alert over suspect transactions. The jury was entitled to not credit the entirety of Defendant’s expert’s testimony regarding reconciliation procedures. In other words, it cannot be said that the “jury clearly should have reached a different verdict or decision.” (See Code Civ. Proc., 657.)

II. Breach of Implied Warranty

Defendant next argues that Plaintiff failed to prove the elements of its claim for breach of the implied warranty of fitness for a particular purpose. First, Defendant argues that that there is no privity of contract between Plaintiff and Defendant because Plaintiff purchased the software from a third-party distributor. (JNOV Mtn. 11:6-28.) Next, Defendant argues that a newer version of the software without the defect had already been released but not installed by the service contractors, meaning Plaintiff’s damages were caused by faulty installation rather than faulty software. (Id., 12:24-15:10.)

Testimony revealed that when Plaintiff purchased the Passport systems, it did not deal directly with Defendant but instead purchased them from Source NA. (Def.’s Ex. B at 7:11-11:11, 88:3-12.) The invoice was issued by Source to Plaintiff. (Def.’s Ex. H.) However, the jury was entitled to find that Source is merely Defendant’s selling agent. Defendant does not deny manufacturing and selling the software at issue. The service contractors testified that the software came from Defendant. (Plntf.’s Ex. G at 104:16-21.) Defendant provided the activation code for the software to ensure payment and provided the help desk for any further assistance that was needed. (Plntf.’s Ex. B at 142:1-11, 143:9-12; Ex. C at 87:20-88:17, 44:1-13.) From this, the jury was entitled to find that Defendant sold the software to Plaintiff.

The jury could also reasonably find that Defendant was responsible for Plaintiff’s damages. The software installed at the time of delivery to Plaintiff was the defective Version 10D. (Plntf.’s Ex. C at 93:22-94:3.) The new Version 10J was not part of the shipment from Defendant. (Id. at 94:4-8.) Defendant’s customer service did not tell the contractors that Version 10D was defective. (Id. at 96:5-14; Ex. G at 59:2-3.) Defendant does not dispute that Version 10D was defective. Therefore, the jury was entitled to find that Defendant sold a defective product that caused Plaintiff’s damages. It cannot be said that the “jury clearly should have reached a different verdict or decision” with regards to the breach of warranty claim. (See Code Civ. Proc., 657.)

III. Defendant’s Cross-Claim Against FHI

Defendant argues that the verdict in favor of FHI on the cross-claim for indemnity is erroneous because FHI contracted to install Gilbarco equipment in proper working order and to indemnify Defendant. (JNOV Mtn. 15:13-25.) Defendant contends that the uncollected transactions were caused by FHI’s failure to install the updated Version 10J. Defendant sent out a service bulletin notifying service contractors of the new software and provided the direct link for doing so, before the installation at Speedy 1. (Id. at 15:26-16:16.) Defendant argues that FHI’s failure to install the updated software violates the agreement to install Gilbarco equipment in proper working order. (Id. at 16:13-16.) Defendant argues that this means FHI is responsible and must indemnify Defendant under the agreement.

However, the contract between Defendant and FHI contains an exception to the indemnity clause if a claim arises from a product defect for which Defendant is responsible. (Def.’s Ex. K, 11(a).) Defendant argues the exception does not apply because the product was not defective due to the updated Version 10J. (JNOV Mtn. 16:17-28.) However, as discussed above, the software installed at the time was the defective Version 10D from Defendant. Defendant did not include the new Version 10J in the shipment package or notify the contractors that Version 10D was defective. The fact that a newer version existed at the time does not preclude a jury from finding that Defendant nonetheless sold a defective product which precludes it from obtaining indemnity from FHI.

CONCLUSION

Defendant’s motions for new trial and judgment notwithstanding verdict are DENIED.



Case Number: ****8304 Hearing Date: June 17, 2022 Dept: 32

SPEEDY FUEL, INC.,

Plaintiff,

v.

GILBARCO, INC., et al.,

Defendants.

Case No.: ****8304

Hearing Date: June 17, 2022

[TENTATIVE] order RE:

plaintiff’s motion for new trial to include prejudgment interest

BACKGROUND

This action was initiated in January 2017 by Plaintiff Speedy Fuel, Inc., and it arises from losses Plaintiff suffered due to unpaid fuel. Defendant Gilbarco, Inc. allegedly distributed faulty merchant software that caused payments to be rejected, resulting in no payment from Plaintiff’s customers. A judgment on special verdict was entered April 28, 2022, resulting in a judgment for Plaintiff Speedy Fuel against Defendant Gilbarco in the amount of $777,054.41.

On May 10, 2022, Plaintiff filed the instant motion for new trial to include prejudgment interest in the amount of $569,129.

LEGAL STANDARD

Civil Code section 3287, subdivision (a) sets forth the right to recover prejudgment interest. The statute provides, in pertinent part: “A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day . . . .” (Civ. Code, 3287, subd. (a).)

Prejudgment interest is an element of damages. (North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 830.) Under Code of Civil Procedure section 657, a verdict may be vacated or modified upon motion of an affected party based on, inter alia, excessive or inadequate damages. Therefore, “a request for prejudgment interest under section 3287 may be sought as part of a motion for new trial pursuant to Code of Civil Procedure section 657, on the grounds of ‘[e]xcessive or inadequate damages.’” (North Oakland Medical Clinic, supra, 65 Cal.App.4th at p. 830.)

DISCUSSION

Prejudgment interest is allowable as a matter of right when damages are fixed or readily ascertainable, but not when there is conflicting evidence over the amount owed which requires a judicial determination to resolve. (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 991.) “The test for determining certainty under section 3287(a) is whether the defendant knew the amount of damages owed to the claimant or could have computed that amount from reasonably available information.” (Howard v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 535.) “It has long been settled that section 3287 should be broadly interpreted to provide just compensation to the injured party for loss of use of money during the prejudgment period.” (Gourley v. State Farm Mut. Auto. Ins. Co. (1991) 53 Cal.3d 121, 132.)

“Damages are not made uncertain by the existence of unliquidated counterclaims or offsets interposed by the defendant.” (Howard, supra, 187 Cal.App.4th at p. 536.) The court in Howard rejected the argument that an amount owed is rendered uncertain by settlement payments constituting partial satisfaction of a judgment. (Ibid.) Reductions stemming from mitigation of damages also do not preclude an award of prejudgment interest. (Coleman Engineering Co. v. North American Aviation, Inc. (1966) 65 Cal.2d 396, 409.) Lastly, “estimates of an expert are appropriate to render the damages certain within the meaning of the statute.” (Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 800.)

Here, damages were made certain on February 26, 2022, when Plaintiff produced the report of its damages expert. (See Hedrick Decl. 7-9.) Plaintiff does not adequately explain how Defendant could have been certain of the amount owed before that date. Plaintiff argues that “[t]he amount of the damages was and is based on reasonably available information, as Gilbarco asserted in support of its motion for new trial on the basis of failure to mitigate.” (Reply 4:12-14.) This vague reference to an unrelated motion without any citation to evidence is insufficient to show that Defendant possessed the certainty required for prejudgment interest prior to February 26, 2022. (See Howard, supra, 187 Cal.App.4th at p. 535.) Plaintiff does not dispute that its expert damages report was not provided until February 26, 2022.

In the case that Plaintiff relies on for the proposition that expert estimates are sufficient to render damages certain, the plaintiff rendered its damages certain by submitting its expert report to the defendant. (Levy-Zentner, supra, 74 Cal.App.3d at p. 801.) Here, there is no indication that Plaintiff did this before February 26, 2022. Therefore, prejudgment interest only accrued beginning February 26, 2022.

CONCLUSION

Plaintiff’s motion for new trial to include prejudgment interest is GRANTED. Prejudgment interest is to be calculated beginning February 26, 2022.



Case Number: ****8304 Hearing Date: January 26, 2022 Dept: 32

SPEEDY FUEL, INC.,

Plaintiff,

v.

GILBARCO, INC., et al.,

Defendants.

Case No.: ****8304

Hearing Date: January 26, 2022

[TENTATIVE] order RE:

(1) DEFENDANT gilbarco, inc.’s motion for leave to augment expert list; and

(2) plaintiff’s motion to strike

Defendant Gilbarco, Inc.’s motion for leave to augment expert list is GRANTED. Plaintiff’s motion to strike is DENIED.



Case Number: ****8304    Hearing Date: May 17, 2021    Dept: 32

Speedy fuel, inc, a California Corporation

Plaintiff,

v.

GILBARCO, INC., a Delaware corporation, et al.

Defendants.

Case No.: ****8304

Hearing Date: May 17, 2021

[TENTATIVE] order RE:

MOTION to compel compliance with Subpoena

BACKGROUND

On January 26, 2017, Plaintiff Speed Fuel Inc (“Plaintiff”) filed the original complaint in this action.

On April 15, 2021 Plaintiff filed a Motion to Compel compliance against nonparty deponent Source North America Corporation (“Source”) alleging that Source did not respond to the Subpoena, did not object to the Subpoena, and did not produce any of the documents requested pursuant to the Subpoena.

In opposition to the motion Source alleges the following: (1) Plaintiff untimely filed the motion (2) Plaintiff failed to meet and confer, and (3) Plaintiff’s Second Subpoena is duplicative of the First Subpoena and unduly burdensome.

Plaintiff also moves for sanctions in the amount of $1,985 for failure to comply with the Subpoena pursuant to CCP ; ;2025.480(j).

DISCUSSION

Plaintiff requests that the Court compel the third party, Source, to comply with a subpoena. CCP section 1987.1 and CCP 2025.480 authorizes the Court to order a party to comply with a subpoena. The Plaintiff provides evidence that it served the subpoena and that the third party did not comply.

However, Source argues that the motion is untimely because it was not made within 60 days of Andrew Corkill’s deposition who was Source’s representative.

Under California Code of Civil Procedure ; ;2025.480(a), “if a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (CCP ; ;2025.480(a).)  This motion shall be made no later than 60 days after the completion of the record of the deposition and shall be accompanied by a meet and confer declaration under Section 2016.040.  (CCP ; ;2025.480(b).) 

Source claims that the Motion to Compel was untimely because the Plaintiff did not comply with the mandatory deadline. Source argues that the Motion was filed five months after the mandatory 60-day deadline and therefore is untimely under CCP ; ;2025.480(b).

Further, the third party, Source, argues that the Plaintiff did not meet and confer under California Code of Civil Procedure ; ;2025.480(b), ; ;2016.040. Under California Code of Civil Procedure ; ;2016.040 “a meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” Source argues that Plaintiff’s counsel made no attempt to resolve the discovery dispute with Source before filing a motion to compel.

Plaintiff argues that Plaintiff served a subpoena only after a failed attempt to meet and confer. Plaintiff alleges that Plaintiff attempted twice to meet and confer. Plaintiff further alleges that Source responded that the requested documents were not readily accessible or available. The court finds that plaintiff attempted a good faith meet and confer.

Source argues that the Second Subpoena is duplicative of prior discovery requests and is meant to annoy, harass, oppress and unduly burden Source in violation of discovery rules. Source argues that the First Subpoena clearly encompassed the identical requests of the Second Subpoena.

The Court finds that the Second Subpoena is duplicative of the prior discovery request, and as such, Plaintiff’s motion is untimely. As set forth above, Plaintiff was required to bring this motion within 60 days of Corkrill’s deposition. Assuming arguendo, that the Second Subpoena is not duplicative of the prior discovery, the Court would still deny Plaintiff’s motion. In his deposition, Corkrill was asked about the information is question, and he made it clear that retrieval of such information would be expensive and unduly burdensome. The court is not inclined to require a nonparty to unnecessary burden and expense.

CONCLUSION

Accordingly, Plaintiff’s motion to compel compliance with the Subpoena is DENIED. Plaintiff’s requests for monetary sanctions is DENIED.



Case Number: ****8304    Hearing Date: October 28, 2020    Dept: 32

SPEEDY FUEL, INC.,

Plaintiff,

v.

GILBARCO, INC, et. al.

Defendants.

Case No.: ****8304

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: ****8304    Hearing Date: January 27, 2020    Dept: 32

SPEEDY FUEL, INC.,

Plaintiff,

v.

GILBARCO, INC, et. al.

Defendants.

Case No.: ****8304

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: ****8304    Hearing Date: January 06, 2020    Dept: 32

SPEEDY FUEL, INC.,

Plaintiff,

v.

GILBARCO, INC, et. al.

Defendants.

Case No.: ****8304

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.



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