This case was last updated from Los Angeles County Superior Courts on 10/14/2020 at 04:34:52 (UTC).

VIRGINA ASSET PARTNERS, LLC VS USM INVESTMENTS, INC.

Case Summary

On 02/08/2018 VIRGINA ASSET PARTNERS, LLC filed a Contract - Other Contract lawsuit against USM INVESTMENTS, INC. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The Judges overseeing this case are OKI, DAN THOMAS, DAN THOMAS OKI and GLORIA WHITE-BROWN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0029

  • Filing Date:

    02/08/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Pomona Courthouse South

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

OKI, DAN THOMAS

DAN THOMAS OKI

GLORIA WHITE-BROWN

 

Party Details

Plaintiffs and Not Classified By Court

VIRGINA ASSETS LLC

VIRGINIA ASSET PARTNERS LLC

VIRGINIA ASSET PARTNERS LLC DBA VIRGINIA ASSETS LLC

USM INVESTMENTS INC.

ULLOA SERGIO M.

Defendants, Cross Plaintiffs and Not Classified By Court

USM INVESTMENTS INC.

ULLOA SERGIO M.

CARRILLO AN INDIVIDUAL HERMAN

CARRILLO AN INDIVIDUAL ROSEMARY

Plaintiffs and Cross Defendants

VIRGINIA ASSET PARTNERS LLC DBA VIRGINIA ASSETS LLC

JADE ESCROW INC. A CALIFORNIA CORPORATION

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorneys

BACON THEODORE E. ATTORNEY AT LAW

BACON THEODORE EMERY

CHANG CANDIE Y

Defendant and Cross Plaintiff Attorneys

KOZICH ESQ. D. DAVID

KOZICH S. DAVID

MEZA JORGE ALBERTO

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR LEAVE TO AMEND MOTION FOR LEAVE TO FILE...)

8/31/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR LEAVE TO AMEND MOTION FOR LEAVE TO FILE...)

Declaration - DECLARATION DECLARATION OF LINDA ECHEGARAY IN SUPPORT OF VIRGINIA ASSET PARTNERS, LLC'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

9/2/2020: Declaration - DECLARATION DECLARATION OF LINDA ECHEGARAY IN SUPPORT OF VIRGINIA ASSET PARTNERS, LLC'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Memorandum of Points & Authorities

8/11/2020: Memorandum of Points & Authorities

Objection - OBJECTION VIRGINIA ASSET PARTNERS, LLC OBJECTIONS TO THE FEBRUARY 6, 2020 DECLARATION OF FREDDIE V. VEGA RE: MOTION TO QUASH

3/10/2020: Objection - OBJECTION VIRGINIA ASSET PARTNERS, LLC OBJECTIONS TO THE FEBRUARY 6, 2020 DECLARATION OF FREDDIE V. VEGA RE: MOTION TO QUASH

Response - RESPONSE RESPONSE OF VIRGINIA ASSET PARTNERS, LLC TO THE FEBRUARY 6, 2020 DECLARATION OF FREDDIE V. VEGA RE: MOTION TO QUASH: DECLARATION OF CHARLES G. GOMEZ IN SUPPORT THEREOF

3/10/2020: Response - RESPONSE RESPONSE OF VIRGINIA ASSET PARTNERS, LLC TO THE FEBRUARY 6, 2020 DECLARATION OF FREDDIE V. VEGA RE: MOTION TO QUASH: DECLARATION OF CHARLES G. GOMEZ IN SUPPORT THEREOF

Case Management Statement

6/19/2018: Case Management Statement

Declaration - DECLARATION DECLARATION OF ASHLEY CABRAL REGARDING THE DECEMBER 23,2019 MAIL SERVICE OF PLAINTIFF AND CROSS DEFENDANT VIRGINIA ASSET PARTNERS, LLC'S RESPONSES TO SPECIAL INTERROGATORIES,

1/27/2020: Declaration - DECLARATION DECLARATION OF ASHLEY CABRAL REGARDING THE DECEMBER 23,2019 MAIL SERVICE OF PLAINTIFF AND CROSS DEFENDANT VIRGINIA ASSET PARTNERS, LLC'S RESPONSES TO SPECIAL INTERROGATORIES,

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL DISCOVERY (NOT "FURTHER DISCOVERY"))

1/28/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL DISCOVERY (NOT "FURTHER DISCOVERY"))

Reply - REPLY REPLY BRIEF TO OPPOSITION TO MOTION TO COMPEL ALL VERIFIED DISCOVERY RESPONSES WITHOUT OBJECTIONS TO SPECIAL INTERROGATORIES, SET TWO

1/14/2020: Reply - REPLY REPLY BRIEF TO OPPOSITION TO MOTION TO COMPEL ALL VERIFIED DISCOVERY RESPONSES WITHOUT OBJECTIONS TO SPECIAL INTERROGATORIES, SET TWO

Proof of Service by Mail

1/17/2020: Proof of Service by Mail

Motion to Quash

11/4/2019: Motion to Quash

Declaration - DECLARATION DECLARATION OF C. GOMEZ IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

10/18/2019: Declaration - DECLARATION DECLARATION OF C. GOMEZ IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Proof of Service by Mail

8/16/2019: Proof of Service by Mail

Notice - Notice of Continued Trial Setting Conference

12/14/2018: Notice - Notice of Continued Trial Setting Conference

Minute Order - Minute Order (Trial Setting Conference)

12/14/2018: Minute Order - Minute Order (Trial Setting Conference)

Minute Order - Minute Order (Trial Setting Conference)

11/13/2018: Minute Order - Minute Order (Trial Setting Conference)

Case Management Statement -

9/21/2018: Case Management Statement -

107 More Documents Available

 

Docket Entries

  • 11/06/2020
  • Hearing11/06/2020 at 10:00 AM in Department J at 400 Civic Center Plaza, Pomona, CA 91766; Hearing on Motion to Compel Further Discovery Responses

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  • 11/06/2020
  • Hearing11/06/2020 at 10:00 AM in Department J at 400 Civic Center Plaza, Pomona, CA 91766; Trial Setting Conference

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  • 11/06/2020
  • Hearing11/06/2020 at 10:00 AM in Department J at 400 Civic Center Plaza, Pomona, CA 91766; Hearing on Motion for Leave to Amend Motion for Leave to File Second Amended Complaint

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  • 09/21/2020
  • Docketat 10:00 AM in Department J, Gloria White-Brown, Presiding; Hearing on Motion to Quash (Motion to Quash the Subpoena Submitted to JP Morgan Chase Bank, N.A.) - Not Held - Continued - Court's Motion

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  • 09/21/2020
  • Docketat 10:00 AM in Department J, Gloria White-Brown, Presiding; Trial Setting Conference - Not Held - Continued - Court's Motion

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  • 09/21/2020
  • Docketat 10:00 AM in Department J, Gloria White-Brown, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Continued - Court's Motion

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  • 09/21/2020
  • Docketat 10:00 AM in Department J, Gloria White-Brown, Presiding; Hearing on Motion for Leave to Amend (Motion for Leave to File Second Amended Complaint) - Not Held - Continued - Court's Motion

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  • 09/04/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by Clerk

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  • 09/02/2020
  • DocketDeclaration (Declaration of Linda Echegaray In Support of Virginia Asset Partners, LLC's Motion for Leave to File Second Amended Complaint); Filed by Virginia Asset Partners, LLC (Plaintiff)

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  • 08/31/2020
  • Docketat 10:00 AM in Department J, Gloria White-Brown, Presiding; Hearing on Motion for Leave to Amend (Motion for Leave to File Second Amended Complaint) - Held - Continued

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147 More Docket Entries
  • 04/04/2018
  • DocketRtn of Service of Summons & Compl

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  • 03/07/2018
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 02/22/2018
  • DocketFirst Amended Complaint; Filed by Virginia Asset Partners, LLC (Plaintiff)

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  • 02/22/2018
  • DocketSummons Issued; Filed by Virginia Asset Partners, LLC (Plaintiff)

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  • 02/13/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 02/08/2018
  • DocketNotice of Lis Pendens; Filed by Virginia Asset Partners, LLC (Plaintiff)

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  • 02/08/2018
  • DocketSummons (on Complaint)

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  • 02/08/2018
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 02/08/2018
  • DocketComplaint; Filed by Virginia Asset Partners, LLC (Plaintiff)

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  • 02/08/2018
  • DocketCivil Case Cover Sheet; Filed by Clerk

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Tentative Rulings

Case Number: KC070029    Hearing Date: August 31, 2020    Dept: J

HEARING DATE: Monday, August 31, 2020

NOTICE: OK[1]

RE: Virginia Asset Partners, LLC v. USM Investments, Inc., et al. (KC070029)

______________________________________________________________________________

1. Defendant Sergio Ulloa’s MOTION TO QUASH THE DEPOSITION SUBPOENA FOR

BUSINESS RECORDS SUBMITTED TO JPMORGAN CHASE BANK, N.A.

Responding Party: Plaintiff, Virginia Asset Partners, LLC

2. Defendant/Cross-Complainant USM Investment, Inc.’s MOTION TO COMPEL FURTHER VERIFIED DISCOVERY RESPONSES WITHOUT OBJECTIONS TO PLAINTIFF/CROSS-DEFENDANT VIRGINIA ASSET PARTNERS, LLCS’ FORM INTERROGATORIES (GENERAL), SET ONE, SPECIAL INTERROGATORIES, SET ONE, AND DEMAND FOR IDENTIFICATION AND INSPECTION OF DOCUMENTS AND OTHER TANGIBLE THINGS, SET ONE

Responding Party: Plaintiff/Cross-Defendant, Virginia Asset Partners, LLC

3. Plaintiff/Cross-Defendant Virginia Asset Partners, LLC’s MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Responding Party: Defendants, USM Investments, Inc. and Sergio Ulloa[2]

Tentative Ruling

1. Defendant Sergio Ulloa’s Motion to Quash the Deposition Subpoena for Business

Records Submitted to JPMorgan Chase Bank, N.A. is DENIED.

2. Defendant/Cross-Complainant USM Investment, Inc.’s Motion to Compel Further Verified Discovery Responses Without Objections to Plaintiff/Cross-Defendant Virginia Asset Partners, LLC’s Form Interrogatories (General), Set One, Special Interrogatories, Set One, and Demand for Identification and Inspection of Documents and Other Tangible Things, Set One is DENIED as MOOT. USM is ordered to pay an additional $120.00 in filing fees prior to the hearing of the motion. The court is inclined to grant Plaintiff’s request for sanctions against USM and Vega, jointly and severally, in the reduced amount of $900.00.

3. The hearing on Plaintiff/Cross-Defendant Virginia Asset Partners, LLC’s Motion for Leave to File Second Amended Complaint is CONTINUED to ________________________.

Background

This lawsuit involves a dispute over the sale of the real property located at 20560 E. Holt Avenue in Covina (“subject property”). On February 22, 2018, Plaintiff Virginia Asset Partners, LLC dba Virginia Assets LLC (“Plaintiff”) filed a First Amended Complaint, asserting causes of action against Defendants USM Investments, Inc. (“USM”), Sergio M. Ulloa, individually and as President of USM Investments, Inc. and Does 1-20 for:

  1. Specific Performance

  2. Declaratory Relief

  3. Declaratory Relief

  4. Breach of Contract

  5. Temporary Restraining Order, Preliminary and Permanent Injunction

On May 3, 2018, USM filed a cross-complaint, asserting causes of action against Plaintiff, Cross-Defendant Jade Escrow, Inc. (“Jade”) and Roes 1-20 for:

  1. Breach of Contract

  2. Fraud

  3. Breach of the Covenant of Good Faith and Fair Dealing

  4. Rescission

  5. Breach of Fiduciary Duty

  6. Breach of Contract

  7. Professional Negligence

On October 10, 2019, Plaintiff filed two “Amendment[s] to Complaint,” wherein Herman Carrillo was named in lieu of Doe 1 and Rosemary Carrillo was named in lieu of Doe 2.

A Trial Setting Conference is set for August 31, 2020.

1. Motion to Quash Deposition Subpoena

Legal Standard

If a subpoena requires the attendance of a witness or the production of documents, the court may, upon motion reasonably made, make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms of conditions as the court shall declare, including protective orders. (CCP § 1987.1(a).)

In making an order pursuant to CCP § 1987.1, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (CCP § 1987.2(a).)

Discussion

Ulloa moves to quash Plaintiff’s deposition subpoena for business records to JPMorgan Chase Bank, N.A. (“Bank”).

Separate Statement

A motion to quash production of documents at a deposition must be accompanied by a separate statement setting forth the particular documents. (See California Rules of Court Rule 3.1345(a)(5).) Failure to do so is grounds for denial in the court’s discretion. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 891-94.) Here, Ulloa did not file a separate statement as required. However, given the relative simplicity of the issues, the court will dispose of this requirement in this instance. Counsel for Ulloa is admonished and instructed to comply with all Rules of Court in any future filings.

Request for Judicial Notice

Plaintiff’s Request for Judicial Notice (“RJN”) is ruled on as follows: Granted as to Request No. 1 (i.e., FAC filed on February 22, 2018); Granted as to Request No. 2 (i.e., cross-complaint filed on or about May 3, 2018); Granted as to Request No. 3 (i.e., Plaintiff’s “Notice of Errata” filed September 24, 2019 regarding missing Exhibit A from FAC); Granted as to Request No. 4 (i.e., USM’s opposition to motion for preliminary injunction filed November 22, 2019) and Granted as to Exhibit 5 (i.e., Corporation Grant Deed recorded December 14, 2017.)

Evidentiary Objections

Plaintiff’s evidentiary objections are overruled.

Service

The motion was originally heard on January 29, 2020; at that time, the court noted in its tentative ruling that Ulloa had failed to attach the deposition subpoena at issue, such that it was unclear what precisely Ulloa was moving to quash, aside from nonspecific “personal banking records.” The court, at that time, continued the hearing on the motion and instructed Ulloa to file a supplemental declaration attaching the entirety of the deposition subpoena forthwith.

On February 6, 2020, Ulloa’s counsel Freddie Vega (“Vega”) submitted a declaration, advising of the following: On or about October 23, 2019, he received from an email from Ulloa which indicated that Bank caused to be served a letter which indicated that his personal banking records were being subpoenaed; that he caused a formal objection to be submitted to Bank and opposing counsel; that he filed the instant motion on or about November 4, 2019; that, while his office is in possession of 19 deposition subpoenas, it does not have the subject subpoena; that on or about February 5, 2020, his office requested a copy of the subject subpoena from opposing counsel, but did not receive same; and that he obtained a copy of the subject subpoena directly from Bank’s National Subpoena Processing Center. (Vega Decl., ¶¶3-8 and 15-19, Exhs. 1-3 and 6.)

In response, Plaintiff submitted a declaration from its counsel, Charles Gomez (“Gomez”), advising of the following: On October 4, 2019, Plaintiff mail served a Notice to Consumer (“Notice”) on Ulloa, which attached the subject subpoena; that said Notice was served simultaneously with three other Notices to Consumer and two Deposition Subpoenas for Production of Business Records to other entities (i.e., Los Angeles County Assessor’s Office [subpoena], Los Angeles County Department of Regional Planning [subpoena], Orange Coast Title Company [two notices to consumer with attached subpoenas] and Jade Escrow [notice to consumer with attached subpoena]); that he personally checked the mail service package before it was sealed for delivery to Vega; and when Ulloa requested another copy of the subpoena on February 5, 2019, his colleague Candie Chang was in trial and he was in the middle of several days of depositions. (Gomez Decl., ¶¶2-4, Exhs. A and B)

The court determines that proper service of the subject subpoena was effectuated.

Merits

The subject subpoena seeks the following categories of documents:

1. YOUR entire file, including but not limited to loan origination, loan servicing; mortgage statements to the borrower(s); payments received by YOU; transaction history reports, notes, or memos; customer service logs and/or comments; and foreclosure file, pertaining to USM Investments, Inc.

2. YOUR entire file, including but not limited to loan origination, loan servicing; mortgage statements to the borrower(s); payments received by YOU; transaction history reports, notes, or memos; customer service logs and/or comments; and foreclosure file, pertaining to Sergio Ulloa;

3. YOUR entire file, including but not limited to loan origination, loan servicing; mortgage statements to the borrower(s); payments received by YOU; transaction history reports, notes, or memos; customer service logs and/or comments; and foreclosure file, pertaining to real property commonly known as 20560 East Holt Street, Covina, CA 91724.

4. YOUR entire file, including but not limited to loan origination, loan servicing; mortgage statements to the borrower(s); payments received by YOU; transaction history reports, notes, or memos; customer service logs and/or comments; and foreclosure file, pertaining to real property commonly known as 20554 East Holt Street, Covina, CA 91724.

5. YOUR entire file, including but not limited to loan origination, loan servicing; mortgage statements to the borrower(s); payments received by YOU; transaction history reports, notes, or memos; customer service logs and/or comments; and foreclosure file, pertaining to real property commonly known as 20556 East Holt Street, Covina, CA 91724.

6. All DOCUMENTS that constitute, reflect, refer or relate to any COMMUNICATIONS between YOU and USM Investments, Inc. concerning real property commonly known as 20560 East Holt Street, Covina, CA 91724.

7. All DOCUMENTS that constitute, reflect, refer or relate to any COMMUNICATIONS between YOU and USM Investments, Inc. concerning real property commonly known as 20554 East Holt Street, Covina, CA 91724.

8. All DOCUMENTS that constitute, reflect, refer or relate to any COMMUNICATIONS between YOU and USM Investments, Inc. concerning real property commonly known as 20556 East Holt Street, Covina, CA 91724.

9. All DOCUMENTS that constitute, reflect, refer or relate to any COMMUNICATIONS between YOU and Sergio Ulloa concerning real property commonly known as 20560 East Holt Street, Covina, CA 91724.

10. All DOCUMENTS that constitute, reflect, refer or relate to any COMMUNICATIONS between YOU and Sergio Ulloa concerning real property commonly known as 20554 East Holt Street, Covina, CA 91724.

11. All DOCUMENTS that constitute, reflect, refer or relate to any COMMUNICATIONS between YOU and Sergio Ulloa concerning real property commonly known as 20556 East Holt Street, Covina, CA 91724.

Ulloa objects to the subject subpoena on privacy grounds. It is noted that USM has not objected or joined in the motion. As an initial matter, the court notes that for discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) Admissibility is not the test, and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. (Id.) These rules are applied liberally in favor of discovery and, contrary to popular belief, fishing expeditions are permissible in some cases. (Id.) CCP section 1987.1 empowers this Court to quash the subpoenas outright in order to protect Defendants "from unreasonable or oppressive demands including unreasonable violations of a witness's or consumer's right of privacy." The right to privacy is guaranteed by the U.S. Constitution. (Griswold v. State of Connecticut (1965) 381 U.S. 479,484.)

Personal financial information comes within the zone of privacy protected by the California Constitution, Article 1, Section 1. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 655-656; Fortunato v. Superior Court (2003) 114 Cal.App.4th 475, 480-481; see also Schnabel v. Superior Court (1993) 5 Cal.4th 704, 712-713 [finding a right to privacy in confidential customer information in whatever form it takes, including tax returns, checks, statements, or other account information].)

Ulloa argues that the instant subpoena seeks his personal banking records and, as such, violates his privacy rights. Plaintiff, however, argues that it is entitled to investigate and conduct discovery regarding the purported purchase and sale of a portion of the subject property to the Carrillos and, to that end, served the subject subpoena on Bank to assess and verify the completion of a real estate purchase transaction between USM and the Carrillos. Ulloa has placed his banking records in issue. Plaintiff points out that, in opposition to Plaintiff’s motion for preliminary injunction, USM and Ulloa advised that “[t]he DEFENDANTS sold PARCEL 2 and 3 to the CARRILLOS on August 15, 2015, which was long before they ever entered into an Agreement with the PLAINTIFF” (RJN, Exh. 4, p. 2) and that on or about October 7, 2019, USM/Ulloa subsequently produced copies of various checks purporting to be payments by the Carrillos for the purchase of a portion of the subject property (Gomez Decl., ¶2, Exh. 1.) None of the checks are made payable to USM. (Id.) While a majority of the checks are payable to Ulloa individually, it cannot be established or verified that these checks are authentic. Even if the produced copies are in fact true copies of checks from the Carrillos, it also cannot be established that the checks were cashed, bounced, or that Ulloa returned the money to the Carrillos after initially depositing the funds. Plaintiff is entitled to determine whether consideration was actually paid by the Carrillos and received and retained by USM, especially in light of the fact that the Corporation Grant Deed recorded December 14, 2017 indicates that the conveyance to the Carrillos was a “bona fide gift.” (Id., ¶3, Exh. 2.)

Ulloa’s motion is denied.

2. Motion to Compel Furthers Re: Form and Special Interrogatories and Document Production, Sets One

Legal Standard

Interrogatories

A party may move to compel further responses to interrogatories if the propounding party deems that (1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (Code Civ. Proc., §§ 2016.040, 2030.300, subd. (b)(1).) In lieu of a separate statement required under the California Rules of Court (“CRC”), the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute. (Code Civ. Proc., § 2030.300, subd. (b)(2).)

Notice of the motion must be provided within 45 days of service of the verified response, or any supplemental verified response, or on or before any specific later date to which the parties have agreed in writing. (Code Civ. Proc., § 2030.300, subd. (c).) The responding party has the burden of justifying the objections to the requests. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to interrogatories or requests for admissions, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make it unjust to impose sanctions. (Code Civ. Proc., § 2030.300, subd. (d).)

Document Production

A motion to compel further responses to a demand for inspection or production of documents may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive or incomplete representations of inability to comply; or (3) unmerited or overly generalized objections. (Code Civ. Proc., § 2031.310, subd. (a).)

A motion to compel further responses to a demand for inspection or production of documents must set forth specific facts showing “good cause” justifying the discovery sought by the demand. (Code Civ. Proc., § 2031.310, subd. (b)(1).) If the moving party has shown good cause for the production of documents, the burden is on the objecting party to justify the objections. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

The moving party must also demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute. (Code Civ. Proc., § 2031.310, subd. (b)(3).)

Notice of the motion must be provided within 45 days of service of the verified response, or any supplemental verified response, or on or before any specific later date to which the parties have agreed in writing. (Code Civ. Proc., § 2030.310, subd. (c).)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to a demand for inspection or production of documents, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make it unjust to impose sanctions. (Code Civ. Proc., § 2031.310, subd. (h).)

Discussion

USM moves the court for an order compelling Plaintiff to provide further responses to USM’s Form Interrogatories, Set No. One (i.e., Nos. 1.1, 3.1-3.7, 4.1, 4.2, 8.1-8.8, 9.1, 9.2, 11.1, 11.2, 12.1-12.8, 13.1, 13.2, 14.1, 14.2, 15.1 and 50.1-50.6), Special Interrogatories, Set No. One (i.e., Nos. 1-123) and Demand for Identification and Inspection of Documents and Other Tangible Things, Set No. One (i.e., Nos. 1-14). USM also seeks sanctions against Plaintiff and its counsel of record, Charles S. Gomez, in the amount of $7,000.00.

Filing Fees

At the outset, the court notes that counsel for USM has improperly combined three discovery motions into one, but has only paid one filing fee and made a reservation for one motion. USM is ordered to pay an additional $120.00 in filing fees prior to the hearing of the motion. Counsel for USM is cautioned that the court may elect to take any future improperly combined motions off-calendar.

Separate Statement

USM’s separate statements regarding the Form and Special Interrogatories, Sets One, fail to comply with CRC Rule 3.1345(c)(1), in that USM has failed to set forth the text of the interrogatories in issue.

Merits

On or about November 4, 2019, USM served the subject discovery. (Vega Decl., ¶3, Exhs. A-C.) On or about December 9, 2019, Plaintiff served objection-only responses. (Id., ¶4, Exhs. D-F.) On December 12, 2019, USM’s counsel Freddie Vega (“Vega”) sent two meet and confer letters regarding the subject discovery to Plaintiff’s counsel Charles Gomez (“Gomez”), requesting further responses by December 17, 2019. (Id., ¶5, Exhs. G and H.) The motion was filed on December 18, 2019.

A review of Plaintiff’s opposition reflects that the motion is moot, inasmuch as Plaintiff served amended responses on January 30, 2020. (Gomez Decl., ¶8, Exhs. 2-4.) Additionally, it is evident that USM did not conduct a sufficient meet and confer. Gomez explains that Plaintiff’s sole representative was out of the country during the first half of December 2019, such that it was necessary to serve straight objections that did not require verification, but preserved Plaintiff’s privileges and right to object in the anticipated amended responses. (Id., ¶2.) Gomez advised Vega, in a letter dated December 9, 2019, as follows:

“I called your office this afternoon to request an extension of the Virginia Asset Partners’ deadline to respond to USM Investment’s first set of discovery. The reason for the request is that we have learned our client is out of the country and will not be back until December 15, 2019 at the earliest.

We had intended to request a two-week extension of the deadline to respond to USM’s first set of discovery requests. Unfortunately, your paralegal, Chantel Pineda, informed us that you are in trial today and unavailable to address this issue.

We are therefore serving straight objections today to preserve Virginia Asset Partners’ rights and privileges, but will promptly serve more substantive verified responses upon our client’s return.

Again, there is no intent to delay or obstruct USM’s efforts to conduct discovery against VAP. To that end, and as a demonstration of VAPs’ good faith, enclosed herewith are VAP’s production of documents with bates number range: VAP_0001 to VAP_0271 . . .” (Id., ¶3, Exh. 1 [emphasis added].)

USM filed the instant motion 9 days after Gomez’s letter and Plaintiff’s responses were mail-served. A motion to compel further responses must be filed with 45 days of service of the responses, with an additional 5 days given in the event the responses were mail-served. It is unclear to the court why counsel for USM felt the need to immediately file the instant motion, particularly in light of Gomez’s December 9, 2019 letter.

The motion is denied as moot.

Sanctions

The court declines USM’s sanctions request, on the basis that USM failed to conduct a good faith meet and confer. The court is inclined to grant Plaintiff’s request for sanctions against USM and Vega, jointly and severally. Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $900.00 (i.e., 3 hours preparing opposition and attending hearing at $300.00/hour.)

3. Motion for Leave to File Second Amended Complaint

Legal Standard

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading…” (Code Civ. Proc., § 473, subd. (a)(1); and see § 576 [“Any judge, at any time before or after commencement or trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order”].)

“[T]he trial court has wide discretion in allowing the amendment of any pleading.” (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135.) “[I]t is irrelevant that new legal theories are introduced as long as the proposed amendments ‘relate to the same general set of facts.’” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048, quoting Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 489.) “[E]ven if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer motion for judgment on the pleadings or other appropriate proceedings.’” (Id., quoting California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.)

Courts must apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, when no prejudice is shown to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) However, “even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial. . . denial may rest upon the lack of diligence in offering the amendment after knowledge of the facts, or the effect of the delay on the adverse party.” (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 940.)

Also, “[a] motion to amend a pleading before trial must: (1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.” (California Rules of Court (“CRC”) Rule 3.1324(a).)

Additionally, “[a] separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.” (CRC Rule 3.1324(b).)

Discussion

Plaintiff moves the court for an order granting leave to file a Second Amended Complaint; more specifically, Plaintiff proposes adding new claims for fraud (against USM/Ulloa), aiding and abetting (against Herman and Rosemary Carrillo), constructive trust and cancellation of instruments (against all Defendants) and amending the prayer to request the relief sought by the proposed additional causes of action.

The declaration of Charles Gomez fails to comply with CRC Rule 3.1324(b); accordingly, the hearing on the motion is continued to ________________________________. Plaintiff is instructed to file and serve a CRC Rule 3.1324(b)-compliant declaration no later than nine court days prior to the continued hearing date.


[1] Motion #1 was filed and mail/email-served on November 4, 2019 and originally set for hearing on February 6, 2020. On December 3, 2019, the court rescheduled the February 6, 2020 hearing for Motion #1 to January 29, 2020. Motion #2 was filed and mail/email-served on December 18, 2019 and originally set for hearing on March 2, 2020. Motion #3 was filed and email-served on January 29, 2020 and originally set for hearing on March 23, 2020. On January 29, 2020, the court continued the hearing on Motion #1 to March 26, 2020 and rescheduled the March 2, 2020 hearing for Motion #2 to March 26, 2020. On January 29, 2020, Plaintiff filed and email-served a “Notice of Continuance of Case Management Conference, Trial Setting Conference, and Hearings on Plaintiff’s Motion for Leave; Defendant Sergio Ulloa’s Motion to Quash, and Defendant USM Investment, Inc.’s Motions to Compel,” advising therein that Motions #1-#3 were scheduled for hearing on March 26, 2020. On March 17, 2020, a “Notice Re: Continuance of Hearing and Order” was filed, in which the court, on its own motion, continued the March 26, 2020 hearing on Motions #1-#3 to June 4, 2020; notice was given to all counsel. On April 23, 2020, the court continued the June 4, 2020 hearing on Motions #1-#3 to September 21, 2020 at 10:00 a.m.; notice was given to all counsel. On June 29, 2020, a “Notice Re: Continuance of Hearing and Order” was filed, in which the court, on its own motion, advanced the September 21, 2020 hearing on Motions #1-#3 to August 31, 2020 at 10:00 a.m.; notice was given to all counsel. On July 2, 2020, Plaintiff filed and email-served a “Notice of Continuance of Hearings,” advising of the August 31, 2020, 10:00 a.m. hearing.

[2] The court considers the opposition filed on March 12, 2020 and not the opposition filed on August 11, 2020 (i.e., based on the initial rescheduled March 26, 2020 hearing date).

Case Number: KC070029    Hearing Date: January 28, 2020    Dept: J

HEARING DATE: Tuesday, January 28, 2020

NOTICE: OK

RE: Virginia Asset Partners, LLC v. USM Investments, Inc., et al. (KC070029)

______________________________________________________________________________

Defendant/Cross-Complainant USM Investments, Inc.’s MOTION TO COMPEL ALL

VERIFIED DISCOVERY RESPONSES WITHOUT OBJECTIONS TO THE SPECIAL

INTERROGATORIES, SET TWO PROPOUNDED TO THE PLAINTIFF/CROSS-

DEFENDANT VIRGINIA ASSET PARTNERS, LLC

Responding Party: Plaintiff/Cross-Defendant, Virginia Asset Partners, LLC

Tentative Ruling

See below.

 

Background

This lawsuit involves a dispute over the sale of the real property located at 20560 E. Holt Avenue in Covina (“subject property”). On February 22, 2018, Plaintiff Virginia Asset Partners, LLC dba Virginia Assets LLC (“Plaintiff”) filed a First Amended Complaint, asserting causes of action against Defendants USM Investments, Inc. (“USM”), Sergio M. Ulloa, individually and as President of USM Investments, Inc. and Does 1-20 for:

  1. Specific Performance

  2. Declaratory Relief

  3. Declaratory Relief

  4. Breach of Contract

  5. Temporary Restraining Order, Preliminary and Permanent Injunction

On May 3, 2018, USM filed a cross-complaint, asserting causes of action against Plaintiff, Cross-Defendant Jade Escrow, Inc. (“Jade”) and Roes 1-20 for:

  1. Breach of Contract

  2. Fraud

  3. Breach of the Covenant of Good Faith and Fair Dealing

  4. Rescission

  5. Breach of Fiduciary Duty

  6. Breach of Contract

  7. Professional Negligence

On October 10, 2019, Plaintiff filed two “Amendment[s] to Complaint,” wherein Herman Carrillo was named in lieu of Doe 1 and Rosemary Carrillo was named in lieu of Doe 2. On October 10, 2019, Plaintiff filed a “Notice of Pendency of Action.”

On November 12, 2019, Plaintiff filed a “Recorded Notice of Pendency of Action.”

A Case Management Conference and Trial Setting Conference are set for January 29, 2020.

Legal Standard

A response to interrogatories is due 30 days after service. (CCP § 2030.260(a).) If a party to

whom the interrogatories are directed fails to serve a timely response to it, the party propounding

the interrogatories may move for an order compelling response to the interrogatories. (CCP §

2030.290(b).) The court shall impose a monetary sanction against any party, person, or attorney

who unsuccessfully makes or opposes such a motion to compel, unless it finds that the one

subject to the sanction acted with substantial justification or that other circumstances make the

imposition of the sanction unjust.” (CCP § 2030.290(c).)

Discussion

USM moves the court for an order compelling Plaintiff to provide verified responses, without

objections, to USM’s Special Interrogatories, Set No. Two. USM also seeks monetary sanctions

in the amount of $3,000.00 against Plaintiff and its attorney of record [calculated as follows: 4

hours preparing motion, plus 6 hours reviewing opposition and preparing any reply, plus 2 hours

appearance time at $250.00/hour].

On or about November 18, 2019, USM served the subject discovery. (Vega Decl., ¶3, Exh. A.) Responses thereto were due on December 23, 2019. (Id., ¶7.) On or about December 19, 2019, at Ulloa’s deposition, USM’s counsel and Plaintiff’s counsel met and conferred in person wherein USM’s counsel acknowledged that USM had some discovery responses that were due; however, USM’s counsel did not secure any extension of time to respond to the subject discovery. (Id., ¶6.) Plaintiff did not receive responses to the subject discovery as of the December 27, 2019 filing of the motion. (Id., ¶4.)

Plaintiff’s counsel Charles Gomez (“Gomez”), in opposition, advises that Plaintiff had been on an extended stay out of the country, returning December 18, 2019. (Gomez Decl., ¶3.) At Ulloa’s December 19, 2019 deposition, Gomez requested a two-week extension of the discovery deadline. (Id.) USM’s counsel Freddie Vega (“Vega”) advised that he would have to confer with his fellow attorneys before granting any request and that he would let Gomez know by 5:00 p.m. that day if USM would grant the extension. (Id.) Vega did not get back to Gomez that day. (Id.) On December 23, 2019, Gomez called Vega’s office to inquire about the requested extension and spoke with Vega’s paralegal, Chantel Pineda, who advised that she would forward Gomez’s message to Vega. (Id., ¶4.) Vega did not call Gomez back. On December 23, 2019, Plaintiff mail-served responses. (Id., ¶6, Exh. 1.) On January 14, 2020, Plaintiff served amended responses. (Id., ¶10, Exh. 2.)

USM, in reply, argues that the first time USM ever received a physical or email copy of Plaintiff’s objections to its discovery requests was on January 14, 2020 via email and that amended responses were also served via email on that date. (Vega Decl., ¶¶6-8.)

Based on the foregoing, the court requests that Plaintiff submit a declaration, at or before the time of the hearing, from legal assistant Ashley Cabral confirming service of the discovery responses on December 23, 2019. The court is inclined to DENY the motion as MOOT and to decline both parties’ sanctions requests.

Case Number: KC070029    Hearing Date: December 03, 2019    Dept: J

HEARING DATE: Tuesday, December 3, 2019

NOTICE: See below

RE: Virginia Asset Partners, LLC v. USM Investments, Inc., et al. (KC070029)

______________________________________________________________________________

Plaintiff Virginia Asset Partners, LLC dba Virginia Assets LLC’s MOTION FOR

PRELIMINARY INJUNCTION

Responding Party: None (unopposed, as of 11/26/19, 11:43 a.m.; due 11/12/19)

Tentative Ruling

The ruling on Plaintiff Virginia Asset Partners, LLC dba Virginia Assets LLC’s unopposed Motion for Preliminary Injunction is contingent upon Plaintiff’s counsel’s filing of a proof of service at or before the time of the hearing reflecting that the motion was served on H. Carrillo and R. Carrillo in compliance with the court’s September 24, 2019, “Temporary Restraining Order and Order to Show Cause Hearing Re Preliminary Injunction:” The motion is DENIED.

 

Background

This lawsuit involves a dispute over the sale of the real property located at 20560 E. Holt Avenue in Covina (“subject property”). On February 22, 2018, Plaintiff Virginia Asset Partners, LLC dba Virginia Assets LLC (“Plaintiff”) filed a First Amended Complaint, asserting causes of action against Defendants USM Investments, Inc. (“USM Inc.”), Sergio M. Ulloa, individually and as President of USM Investments, Inc. and Does 1-20 for:

  1. Specific Performance

  2. Declaratory Relief

  3. Declaratory Relief

  4. Breach of Contract

  5. Temporary Restraining Order, Preliminary and Permanent Injunction

On May 3, 2018, USM Inc. filed a cross-complaint, asserting causes of action against Plaintiff, Cross-Defendant Jade Escrow, Inc. (“Jade”) and Roes 1-20 for:

  1. Breach of Contract

  2. Fraud

  3. Breach of the Covenant of Good Faith and Fair Dealing

  4. Rescission

  5. Breach of Fiduciary Duty

  6. Breach of Contract

  7. Professional Negligence

On October 10, 2019, Plaintiff filed two “Amendment[s] to Complaint,” wherein Herman Carrillo was named in lieu of Doe 1 and Rosemary Carrillo was named in lieu of Doe 2. On October 10, 2019, Plaintiff filed a “Notice of Pendency of Action.”

On November 12, 2019, Plaintiff filed a “Recorded Notice of Pendency of Action.”

A Case Management Conference is set for January 29, 2020.

Legal Standard

“The purpose of a preliminary injunction is the preservation of the status quo until a final determination of the merits of the action.” (Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827, 832.) “To issue an injunction is the exercise of a delicate power, requiring great caution and sound discretion, and rarely, if ever, should be exercised in a doubtful case.” (Willis v. Lauridson (1911) 161 Cal. 106, 117.)

“In considering whether to issue a preliminary injunction, a court evaluates two interrelated factors: the likelihood plaintiff will prevail on the merits at trial and the interim harm to plaintiff or defendant if the court denies or grants the preliminary injunction. Plaintiff carries the burden of proof and persuasion on these issues.” (Drakes Bay Oyster Co. v. California Coastal Com. (2016) 4 Cal.App.5th 1165, 1171.)

“The trial court’s determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support an injunction.” (Butt v. State of California (1992) 4 Cal.4th 668, 678.) “[A]n injunction should not issue where there is no possibility of success even though its issuance might prevent irreparable harm. . . Where there is indeed no likelihood that the plaintiff will prevail, an injunction favoring the plaintiff serves no valid purpose and can only cause needless harm.” (American Academy of Pediatrics v. Van de Camp (1989) 214 Cal.App.3d 831, 838.)

Discussion

Plaintiff moves the court for an order issuing a preliminary and/or permanent injunction enjoining USM Inc., Sergio Ulloa (“Ulloa”), Herman Carrillo (“H. Carrillo”) and Rosemary Carrillo (“R. Carrillo”) (collectively, “Defendants”), their agents, employees, representatives, attorneys and all persons acting in concert or participating with them from subdividing, selling, encumbering or altering the physical condition of the subject property. Plaintiff also requests that the court order Defendants to maintain insurance and keep current on any mortgage payments and property taxes during the pendency of this action.

Notice

 

On September 23, 2019, Plaintiff filed an “Ex Parte Application for Order to Show Cause and Temporary Restraining Order to Stop Subdivision and Sale of Property and Physical Alteration of Condition of Land” (“Ex Parte Application”). The Ex Parte Application sought to “enjoin[ ] defendants USM Investments, Inc. and Sergio Ulloa, their agents, employees, representatives, attorneys and all persons acting in concert or participating with them (collectively, ‘USM/Ulloa’) from subdividing, selling or altering the physical condition of the real property that is the subject of this litigation” and requested that the court also order USM/Ulloa to maintain insurance and keep current on any mortgage payments or property taxes during the pendency of the action.” (Application, 2:5-10.)

On September 24, 2019, a “Temporary Restraining Order and Order to Show Cause Hearing Re Preliminary Injunction” was filed; the order specified that the OSC and TRO and supporting papers were to be served on defendants no later than October 18, 2018 by overnight mail (with the proof of service filed at least 10 court days prior to the hearing date), that the opposition was to be filed and served on Plaintiff by overnight mail by November 12, 2019 that any reply was to be filed and served on defendants by overnight mail by November 22, 2019 and that an Order to Show Cause Re: Preliminary Injunction hearing was set for December 3, 2019.

On September 24, 2019, Plaintiff filed a “Notice of Issuance of Temporary Restraining Order to Stop Defendants USM Investments, Inc. and Sergio Ulloa from Subdividing, Selling or Altering the Physical Condition of the Land” and mail/email served same that day on counsel for Ulloa and USM, Eduardo Villarruel of Landevelopment Engineering, Inc., Office of the County Counsel, Los Angeles County Dept. of Regional Planning, and Los Angeles County Dept. of Public Works.

Again, on October 10, 2019, Plaintiff filed two “Amendment[s] to Complaint,” wherein H. Carrillo was named in lieu of Doe 1 and R. Carrillo was named in lieu of Doe 2. On October 10, 2019, Plaintiff filed and email-served a “Notice of Hearing on Plaintiff’s Motion for Preliminary Injunction” on counsel for USM Inc. and Ulloa.

On October 17, 2019, Plaintiff filed a proof of service, which reflected that H. Carrillo had been personally served on October 15, 2019 and that R. Carrillo had been substitute-served on October 16, 2019 with the following documents:

“1. Deposition Subpoena for Production of Business Records (with Attachment 3)

2. First Amended Summons

3. Amendment to Complaint (First Amended) (Fictitious/Incorrect Name)—Doe 1

4. First Amended Complaint

5. Notice of Errata

6. First Amended Summons

7. Amendment to Complaint (First Amended) (Fictitious/Incorrect Name) – Doe 2

8. First Amended Complaint

9. Notice of Errata

10. Notice of Hearing on Plaintiff’s Motion for Preliminary Injunction

11. Notice of Issuance of Temporary Restraining Order

12. Notice of Pendency of Action

13. Complaint

14. Cross-Complaint”

On October 18, 2019, this instant motion was filed; the accompanying proof of service reflects that it was served, via email, that day on counsel for Ulloa and USM Inc. On October 21, 2019, Plaintiff filed a “Proof of Service by Federal Express of: (1) Plaintiff Virginia Asset Partners, LLC’s Notice of Motion and Motion for Preliminary Injunction; Memorandum of Points and Authorities; Declaration of Charles G. Gomez in Support Thereof; (2) Request for Judicial Notice in Support Motion for Preliminary Injunction; (3) Declaration of Charles G. Gomez in Support of Motion for Preliminary Injunction; and (4) [Proposed] Order Granting Preliminary Injunction;” the attached page, however, merely reflects that a “PROOF OF SERVICE” was served on Defendants via FedEx on October 18, 2019.

The court determines, based on the above, that Plaintiff has not made an adequate showing that H. Carrillo and R. Carrillo received the motion itself. The following ruling, then, is contingent upon Plaintiff’s counsel’s filing of a proof of service at or before the time of the hearing reflecting that the motion was served on H. Carrillo and R. Carrillo in compliance with the court’s September 24, 2019, “Temporary Restraining Order and Order to Show Cause Hearing Re Preliminary Injunction.”

Request for Judicial Notice

Plaintiff’s Request for Judicial Notice (“RJN”) is ruled on as follows: GRANTED as to Request No. 1 (i.e., complaint filed February 8, 2018); GRANTED as to Request No. 2 (i.e., First Amended Complaint filed February 22, 2018); (3) GRANTED as to Request No. 3 (i.e., cross-complaint filed on or about May 3, 2018); GRANTED as to Exhibit “A” (i.e., Notice of Errata Regarding Missing Exhibit “A” from Plaintiff’s First Amended Complaint); GRANTED as to Request No. 5 (i.e., Notice of Issuance of Temporary Restraining Order filed September 24, 2019); GRANTED as to Exhibit P (i.e., Amendment to Complaint filed October 10, 2019, substituting H. Carrillo in lieu of Doe 1); GRANTED as to Exhibit Q (i.e., Amendment to Complaint filed October 10, 2019, substituting R. Carrillo in lieu of Doe 2); GRANTED as to Exhibit R (i.e., proof of service on H. Carrillo and R. Carrillo filed on October 18, 2019); GRANTED as to Exhibit L (i.e., Certificate of Amendment of Articles of Incorporation for USM Inc. filed October 5, 2015); GRANTED as to Exhibit O (i.e., grant deed recorded October 23, 2008); GRANTED as to Exhibit S (i.e., Corporation Grant Deed recorded December 14, 2017);GRANTED as to Exhibit T (i.e., Corporation Grant Deed recorded on July 26, 2018); GRANTED as to Exhibit U (i.e., grant deed recorded January 29, 2019) and DENIED as to Exhibit V (i.e., Los Angeles County Assessor’s Book 8448, Sheet 18).

Merits

Likelihood of Prevailing on the Merits

The burden upon Plaintiff is to show that there is a reasonable likelihood that Plaintiff will prevail on the merits at the time of trial. The court determines that Plaintiff has not met its burden.

Plaintiff has asserted causes of action for Specific Performance, Declaratory Relief, Declaratory Relief, Breach of Contract and Temporary Restraining Order, Preliminary and Permanent Injunction. Plaintiff has alleged as follows: On or about December 12, 2017, USM Inc. entered into a Residential Purchase Agreement and Joint Escrow Instructions (“PSA”) with Plaintiff for the sale of the real property located at 20560 E. Holt Avenue in Covina (“subject property”). (FAC, ¶7, Exh. A.) USM Inc. is the owner of the fee simple interest in the property. (Id., ¶7.)

The PSA provided for a purchase price of $3,350,000.00, with an initial deposit of $50,000.00 with Jade, the escrow holder, and escrow was slated to close on January 8, 2018. (Id., ¶8.) USM Inc. has not complied with its obligation under Section 7.C(1)(c) of the PSA to sign the escrow instructions prepared by Jade, nor has USM Inc. provided Jade with the required documents or information needed to close escrow. (Id., ¶¶9-10.) On information and belief, Defendants have made efforts to subdivide the subject property with the intent of selling only a portion of the subject property to Plaintiff, while retaining the remainder for Defendants, which actions contravene the terms of the PSA and constitute a breach of Defendants’ duties and obligations thereunder. (Id., ¶11.) Plaintiff seeks a judgment wherein Defendants and each of them are ordered to comply with the PSA and when acted upon, to execute and deliver to Plaintiff a sufficient conveyance of the Property. (Id., ¶23.) Plaintiff seeks a judgment or declaration that the written agreements set forth above are in full force and effect and that Plaintiff is entitled to purchase Defendants’ fee interest to the subject property pursuant to the PSA, and that Defendants are prevented from subdividing the property. (Id., ¶¶29 and 36.) Plaintiff seeks the issuance of a temporary restraining order, preliminary and permanent injunction restraining and enjoining Defendants from proceeding with any sale or subdivision of Defendants’ interest. (Id., ¶30.)

USM Inc., in turn, has asserted causes of action for Breach of Contract, Fraud, Breach of the Covenant of Good Faith and Fair Dealing, Rescission, Breach of Fiduciary Duty, Breach of Contract and Professional Negligence. USM Inc. has alleged as follows: Until about August 30, 2016, USM Inc. was the owner in fee simple absolute of real property commonly known as 20560 East Holt Street in Covina (the “Property”), which was assigned assessor’s parcel number (“APN”) 8448-018-053. (Cross-Complaint, ¶13.) The Property consisted of approximately 3.65 acres net area. (Id.) On or about August 30, 2016, USM Inc. undertook to divide the Property into three parcels: (1) Parcel 1 is commonly known as 20560 East Holt Street in Covina, is assigned APN 8448-018-053 and consists of 1.727 acres net area, as shown on Tentative Parcel Map No. 74476 (Id., ¶15); (2) Parcel 2 is commonly known as 20544 East Holt Avenue in Covina, is assigned APN 8448-018-054 and consists of 0.998 acres net area, as shown on Tentative Parcel Map No. 74476 (Id., ¶16) and (3) Parcel 3 is commonly known as 20544 East Holt Avenue in Covina, is assigned APN 84480018-055 and consists of 0.918 acres, as shown on Tentative Parcel Map No. 74476 (Id., ¶17.) On or about December 12, 2017, USM Inc. entered into a contract with Plaintiff for the sale and purchase of Parcel 1 for $3,350,000.00; however, documents subsequently prepared by Jade included an incorrect legal description of Parcel 1. (Id., ¶¶18 & 20.) Plaintiff has demanded to take possession of Parcel 1 and Parcel 2; however, a genuine mistake of fact has occurred in that the legal description of Parcel 1 is in error. (Id., ¶¶ 24-25.) Plaintiff intended to deceive USM Inc. by concealing the fact that the legal description to Parcel 1 was in error. (Id., ¶32). USM Inc. seeks to rescind its contract with Plaintiff. (Id., ¶47.)

Plaintiff herein submits as follows: On October 25, 2008, Ulloa conveyed the real property described in Exhibit A thereto (i.e., as follows: Parcel 1 That portion of Lot 6, Tract No. 13648, located in the unincorporated area of the County of Los Angeles, State of California, as shown on the map thereof, recorded in Book 281, Pages 12 through 15 inclusive, in the office of the county recorder of said county, described as follows: Beginning at the most northeasterly corner or said Lot 6; Thence southerly along the easterly line of said Lot 6, South 06’ 29’ 30”East, 485.13 feet; Thence North 87’ 32’ 00”West, 237.67 feet; Thence North 02’ 28’ 00” East 12.00 feet; Thence North 87’ 32’ 00” West; 180.03 feet to a point on a line that is parallel to and 40 feet easterly, measured at right angles to the west line of said Lot 6; Thence northerly along said parallel line, North 02’ 28’ 00” East, 324.99 feet, to a point on the northerly line of said Lot 6; Thence easterly along said north line North 66’ 39’ 25” East, 259.87 feet to the beginning of a tangent curve, concave to the south and having a radius of 300.00 feet; thence easterly along said curve through a central angle of 21’ 31’ 42”, an arc length of 112.72 feet to the point of beginning. The above described parcel contains 157,998 square feet or 3.63 acres, more or less.”)

to USM Inc. via a grant deed recorded October 23, 2008; Parcel No. 8448-018-52 is referenced on the first page. (Gomez Decl., ¶16, Exh. O.)

On August 15, 2015, Ulloa entered into a Residential Purchase Agreement with H. Carrillo and R. Carrillo for the purchase and sale of “20554 & 56 E. Holt Ave.” in Covina. (Id., ¶24, Exh. W.) Plaintiff asserts that “20554 and 20556 Holt Avenue are proposed addresses for proposed legal parcels.” (Motion, 5:11-13). On October 5, 2015, a “Certificate of Amendment of Articles of Incorporation” was filed with the California Secretary of State, wherein Article First of the Articles of Incorporation of USM Investment was amended to reads as follows: “The name of the corporation is U.S.M. Properties Inc.” (Id., ¶13, Exh. L.) On March 10, 2016, Ulloa and Landevelopment Engineering Inc. entered into an agreement for “Jobsite: 20560 E. Holt Ave Covina CA 91724[,] A.P.N.: 8448-018-053 and 8448-018-055.” (Id., ¶4, Exh. C.) On November 10, 2016, the Los Angeles County Subdivision Committee denied PM 74476 (Initial Tentative Parcel Map), which intended to create three single-family lots on the 3.6 net acre parcel. (Id., ¶¶11-12, Exhs. J & K.)

On December 12, 2017, Plaintiff and USM Properties, Inc. executed a Residential Purchase Agreement for the purchase and sale of the real property located at “20560 E. Holt Ave, Covina, CA 91724-3708.” (Id., ¶14, Exh. M.) On December 14, 2017, a “Corporation Grant Deed” was recorded, wherein USM Properties, Inc. purported to grant to H. Carrillo and R. Carrillo the following property described in Exhibit A thereto (i.e., as follows: Parcel 3 of Tentative Parcel Map No. 73803[,] Parcel A[,] That portion of Lot 6, Tract No. 13648, located in the unincorporated area of the County of Los Angeles, State of California, as shown on the map thereof, recorded in Book 281, Pages 12 through 15 inclusive, in the office of the county recorder of said country, described as follows: Commencing at the most northeasterly corner of said Lot 6; Thence southerly along the easterly line of said Lot 6, South 06’ 29’ 30” East, 485.13 feet; Thence North 87’ 32’ 00” West, 237.67 feet; Thence North 02’ 28’ 00” East, 12.00 feet; Thence North 87’ 32’ 00” West, 28.54 feet to the Point of Beginning Thence North 09’ 54’ 15” West, 191.69 feet; Thence North 06’ 29’ 30” West, 179.80 feet, to a point on the northerly line of said Lot 6; Thence westerly along said north line South 66’ 39’ 25” West, 91.57 feet; Thence parallel to the west line of said Lot 6, South 02’ 20’ 00” West, 324.98 feet; Thence South 87’ 32’ 00” East, 180.04 feet to the Point of Beginning. The above described parcel contains 40,006 square feet of 0.918 acres, more or less. Parcel B[,] A sanitary septic sewer easement over Parcel 2 as shown on the Map of the Tentative Parcel Map No.: 74476 and described as follows: Commencing at the most northeasterly corner of said Lot 6; Thence southerly along the easterly line of said Lot 6, South 06’ 29’ 30” East, 485.13 feet; Thence North 87’ 32’ 00” West, 202.67 feet to the Point of Beginning; Thence continuing North 87’32’ 00” West, 35.00 feet Thence North 02’ 28’ 00” East, 12.00 feet; Thence North 87’ 32’ 00” West, 28.54 feet; Thence North 09’ 54’ 15” West, 10.24 feet; Thence South 87’ 32’ 00” East, 25.80 feet; Thence North 02’ 28’ 00” East 33.00 feet; Thence South 87’ 32’ 00” East, 39.93 feet; Thence South 02’ 28’ 00” West, 55.00 feet to the Point of Beginning.”); Parcel No. 8448-018-055 is referenced on the first page. (Id., ¶20, Exh. S.)

On July 26, 2018, a Correction Grant Deed was recorded, wherein USM Inc. purported to remise, release, and quitclaim to H. Carrillo and R. Carrillo the following property described in Exhibit A thereto (i.e., as follows: Parcel 3 of Tentative Parcel Map No. 73803[,] Parcel A[,] That portion of Lot 6, Tract No. 13648, located in the unincorporated area of the County of Los Angeles, State of California, as shown on the map thereof, recorded in Book 281, Pages 12 through 15 inclusive, in the office of the county recorder of said county, described as follows: Commencing at the most northeasterly corner of said Lot 6; Thence southerly along the easterly line of said Lot 6, South 06’ 29’ 30” East, 485.13 feet; Thence North 87’ 32’ 00” West, 237.67 feet; Thence North 02’ 28’ 00” East, 12.00 feet; Thence North 87’ 32’ 00” West, 28.54 feet to the Point of Beginning Thence North 09’ 54’ 15” West, 191.69 feet; Thence North 06’ 29’ 30” West, 179.80 feet, to a point on the northerly line of said Lot 6; Thence westerly along said north line South 66’ 39’ 25” West, 91.57 feet; Thence parallel to the west line of said Lot 6, South 02’ 20’ 00” West, 324.98 feet; Thence South 87’ 32’ 00” East, 180.04 feet to the Point of Beginning. The above described parcel contains 40,0006 square feet of 0.918 acres, more or less. Parcel B[,] A sanitary septic sewer easement over Parcel 2 as shown on the Map of the Tentative Parcel Map No.: 74476 and described as follows: Commencing at the most northeasterly corner or said Lot 6; Thence southerly along the easterly line of said Lot 6, South 06’ 29’ 30” East, 485.13 feet; Thence North 87’ 32’ 00” West, 202.67 feet to the Point of Beginning; Thence continuing North 87’ 32’ 00” West, 35.00 feet Thence North 02’ 28’ 00” East, 12.00 feet; Thence North 87’ 32’ 00” West, 28.54 feet; Thence North 09’ 54’ 15” West, 10.24 feet; Thence South 87’ 32’ 00” East, 25.80 feet; Thence North 02’ 28’ 00” East 33.00 feet; Thence South 87’ 32’ 00” East, 39.93 feet; Thence South 02’ 28’ 00” West, 55.00 feet to the Point of Beginning;” Parcel No. 8448-018-066 is referenced thereon. (Id., ¶21, Exh. T.)

On January 29, 2019, a grant deed was recorded, wherein USM Properties, Inc. purported to grant to Ulloa the following property described in Exhibit A thereto (i.e., as follows: Parcel 1 of Tentative Parcel Map No. 73803[,] That portion of Lot 6, Tract No. 13648 located in the unincorporated area of the County of Los Angeles, State of California, as shown on the map thereof, recorded in Book 281, Pages 12 through 15 inclusive, in the office of the county recorder of said county, described as follows: Beginning at the most northeasterly corner of said Lot 6; Thence southerly along the easterly line of said Lot 6, South 6’ 29’ 30” East, 485.13 feet; Thence North 87’ 32’ 00” West, 237.67 feet; Thence North 02’ 28’ 00” East, 12.00 feet; Thence North 87’ 32’ 00” West, 28.54 feet; Thence North 09’ 54’ 15”West, 191.69 feet; Thence North 06’ 29’ 30” West, 179.80 feet, to a point on the northerly line of said Lot 6; Thence easterly along said north line North 66’ 39’ 25” East, 168.30 feet to the beginning of a tangent curve, concave to the south and having a radius of 300.00 feet; thence easterly along said curve through a central angle of 21’ 31’ 42”, an arc length of 112.72 feet to the Point of Beginning. Reserving a 25-foot wide sanitary septic sewer easement for Parcel 2 as shown on the Map of the Tentative Parcel Map No.: 74476[.] The above described parcel contains 118,686 square feet or 2.725 acres, more or less”); Parcel No. 8448-018-065 is referenced thereon. (Id., ¶22, Exh. U.) With respect to 20560 Holt, the subdivision into separate, smaller legal parcels has not occurred, as of September 9, 2019. (Id., ¶2, Exh. A, 64:20-23.)

Plaintiff argues that USM does not have a preexisting obligation to sell a portion of the Property to the Carrillos, on the basis that 20554 and 20556 Holt Avenue in Covina did not and do not exist as subdivided legal parcels approved by the Los Angeles Department of Regional Planning and that a real estate contract cannot convey property that does not exist or is described in a manner that is too vague to establish an enforceable contract. (Motion, 10:20-28.) Plaintiff’s citations, however, appear unavailing, as the evidence suggests that the Carrillos were involved in the subdivision process and as reference to 20554 and 20556 Holt Avenue in Covina obviously corresponds to how it was anticipated the property would be subdivided. Plaintiff’s citations, moreover, pertain to parties to a real estate contract raising the ground of insufficient description of the property as a basis to avoid specific performance or damages, rather than by a third party raising same.

Moreover, no declaration has been submitted by anyone from Plaintiff; rather, the motion is supported entirely by Plaintiff’s counsel’s declaration, as well as allegations contained in Plaintiff’s unverified FAC. Accordingly, Plaintiff has not submitted any evidence that Plaintiff, at the time of entering into the December 12, 2017 transaction, was never informed by USM Inc. and/or Ulloa that USM Inc. and/or Ulloa were in the process of obtaining a subdivision of the 3.6 acres and that the property that was the subject of the December 12, 2017 transaction consisted, in fact, only of Parcel 1 consisting of 1.727 acres net area, as shown on Tentative Parcel Map No. 74476 (Id., ¶15). Exhibits A and D-G suggest that the subdivision process remained, and remains, ongoing. Plaintiff has not submitted any evidence refuting USM Inc.’s assertions of fraud and mistake. Plaintiff has not submitted any admissible evidence that Plaintiff stands ready, willing and able to consummate the transaction.

The court concludes that Plaintiff has not carried its burden of showing that it is “reasonably probable” that it will prevail on the merits at trial. Accordingly, the court determines that it need not evaluate the factor of interim harm. The motion is DENIED.