Nov 11, 2019

 TENTATIVE RULINGS                                            

LAW & MOTION CALENDAR                                
Wednesday, November 6, 2019, 3:00 p.m.      
Courtroom 17 – Hon. Arthur A. Wick
3035 Cleveland Avenue, Santa Rosa
 
 
The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, YOU MUST notify Judge Wick’s Judicial Assistant by telephone at (707) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. on Tuesday, November 5th. Parties in small claims cases and motion for claims of exemption are exempt from this requirement.
 
CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.   Please contact CourtCall directly at (888) 882-6878.
 
PLEASE NOTE:  The Court WILL provide a Court Reporter for this calendar.  If there are any concerns, please contact the Court at the number provided above.

 
 

 

 

TENTATIVE RULINGS FOR OCTOBER 30, 2019 HEARINGS:

1.         MCV-241353, Connor v. Seitz:
Plaintiffs Donel Connor and Randolin Livingstone move this court for relief from the dismissal of their case under CCP §473(b), and CCP 583.130.
 
Plaintiff’s complaint for property damage and personal injury against defendants Victoria Kate Seitz and The Hertz Corporation was filed on February 27, 2017. The first case management conference was scheduled for September 14, 2017. Plaintiff failed to appear and the court continued the hearing to November 16, 2017, and issued an Order to Show Cause RE Dismissal for that date. On November 16, 2017, the court ordered sanctions and again continued the hearing, this time to March 7, 2019. Plaintiff again failed to appear at the March 7, 2019 hearing and the case was dismissed for failure to pay sanctions and failure to file a case management statement.
 
“The court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any resulting dismissal entered against his or her client.” (CCP section 473(b).)
 
Plaintiffs’ counsel, Norman Gregory Fernandez, states that he had been having difficulty serving the defendant in this case because she is out of state. (Fernandez decl. ¶¶ 2, 3.) Then on February 7, 2019, Mr. Fernandez tore his distal bicep tendon, lost the use of his left arm, and was in severe pain. (Id. at ¶ 6.) Surgery was done on March 19, 2019. (Ibid.) Mr. Fernandez was in physical therapy until approximately July 2019, and returned to work on approximately May 1, 2019. (Ibid.) During the time he was not at work, he relied upon his assistant, an appearance attorney, to handle his calendar. (Id. at ¶ 7.) Mr. Fernandez’s assistant failed to calendar the March 7, 2019, hearing and thus that hearing date was missed. (Id. at ¶¶7-9.)
 
While the declaration does not explain why the first two hearings were missed, Mr. Fernandez does have an explanation for the final hearing at which the case was dismissed. Accordingly, the court will grant the requested relief.
 
As a condition of granting this motion, counsel is directed to pay sanctions in the amount of $200.00 to the State Bar Client Security Fund within 30 days of this order. (CCP § 473(c)(1)(B).)
 

Plaintiffs’ counsel is directed to submit an order consistent with this tentative ruling.

 
 
 
2.         MCV-247918, Wells Fargo Bank, N.A. v. Doughty:
Plaintiff Wells Fargo Bank, N.A., moves for an order granting plaintiff judgment on the pleadings against Daniel R. Doughty and to enter judgment in the amount of $18,156.66 in principal, plus costs, and reasonable attorney fees.
 
The court grants plaintiff’s request to take judicial notice of defendant’s answer.
 
Judgment on the pleadings is appropriate when an answer does not state facts sufficient to constitute a defense, CCP §438(c)(l)(A). Defendant’s answer admits that the statements in the complaint are true. The complaint states that Defendant owes plaintiff $18,156.66, plus costs and attorney fees. Accordingly, the motion for judgment on the pleadings is GRANTED.
 
Plaintiff’s counsel requests $750 in attorney fees and $507 in costs. The court approves these amounts. Judgment shall be entered forthwith in the amount of $19,413.66. (CCP section 438(h)(3).)
 

Plaintiffs’ counsel is directed to submit an order consistent with this tentative ruling.

 
 
 
3.         SCV-262172, Green League Ventures, LLC v. Privateer Holdings, Inc:
I. Defendants’ Motion for Summary Adjudication
There are three motions on calendar in this case. The first is the summary adjudication motion of Defendants Privateer Holdings, Inc. (“Privateer”) and Christian Groh (together “Defendants”). Defendants seek summary adjudication of the first, second, fourth, and fifth causes of action asserted in the Complaint by Plaintiffs Green League Ventures, LLC, dba “Master P’s Trees” (“GLV”) and Percy Miller, aka Master P (together “Plaintiffs”). For the reasons discussed below, the motion for summary adjudication is DENIED.
 
1. First Cause of action for Breach of Oral Contract; Second Cause of action for Breach of Implied Contract
Defendants argue Privateer is entitled to summary adjudication on GLV’s causes of action for breach of an oral and implied contract because the alleged contract is invalid under the statute of frauds. They argue that the undisputed facts show that the alleged oral or implied contract could not have been performed within one year from the date of formation, March 31, 2017. Defendants argue the undisputed facts also show that the alleged contract does not meet the writing requirement of the statute of frauds. As such, they urge the court to find that the alleged oral or implied contract is unenforceable as a matter of law.
 
a. Statute of Frauds
The statute of frauds applies to “[a]n agreement that by its terms is not to be performed within a year from the making thereof.” (Civ. Code § 1624(a)(1).) “In a bilateral contract, if the promise of either party cannot be performed within one year, the entire contract falls within the statute of frauds.” (Winburn v. All Am. Sportswear Co. (1963) 215 Cal.App.2d 380, 382.)
 
During the car ride from SFO to Santa Rosa on March 31, 2017, Privateer and GLV (together “the Parties”) entered into an oral or implied contract, requiring performance for more than one year thereafter. (SS at 1, 9.) One of the contract terms was that the Parties would work together for one year after the product was first distributed in stores. (Ibid.) The product was to be in stores by July 3, 2017. (Ibid.) As Miller’s business associate, Alex Yaghoub, testified at his deposition, the oral contract was formed on “March 31st, 2017” and, on that date, he and Miller “made very clear in [their] meeting that the one year would commence from the time that the initial product got to the stores.” (SS at 2, 10.) Similarly, Miller testified that the oral contract was formed on March 31, and that the one-year product distribution term would not expire until “a year from July [2017],” when he planned to launch his product at the Essence Music Festival. (SS at 3, 11.) Based upon these facts, Defendants have met their burden to establish that the statute of frauds applies.
 
In response, Plaintiffs argue that distribution of the product to dispensaries would only occur if the proposed product was approved by Percy Miller or his authorized representative. Mr. Miller testified that “either me or somebody from my team was gonna approve it.” (Plaintiffs’ Additional Undisputed Material Facts (“PUMF”) 13.) In context, the statement appears to indicate that Mr. Miller planned to move forward with the agreement regardless, relying on Defendants’ expertise. (See ibid.) However, construing the evidence in the light most favorable to the opposing party, Plaintiffs’ evidence could support finding that Plaintiffs did not have to go forward with the agreement if defendant Miller did not approve of the product developed by Defendants.
 
The “one year” provision of the statute of frauds has been interpreted very narrowly. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 548.)  The cases indicate that there must not be the slightest possibility that it can be fully performed within one year. (Ibid. [citations omitted.]) A provision in the contract that allows it to be terminated within a year’s time brings it out of the statute of limitations. (Ibid.) Accordingly, if Mr. Miller did not approve the proposed product, the contract could be terminated within a year’s time so that the statute of frauds does not apply. Accordingly, a triable issue of material fact exists regarding whether the statute of frauds applies.
 
b. Estoppel
Plaintiffs also argue that Defendants are estopped from raising the Statute of Frauds defense because Plaintiffs were induced to seriously change their position in reliance on the contract and that they would suffer unconscionable injury if the contract were not enforced.
 
Plaintiffs argue that they changed their position in many ways as a result of the agreement with Defendants. They gave up other opportunities for marketing cannabis products under the Master P's Trees brand and logo that they had been discussing with other companies. (PUMF Nos. 10- 12.) They produced artwork for the product packaging based on box design specifications that Privateer provided. (PUMF Nos. 14-17.) Miller made arrangements with celebrity Snoop Dogg to do some cross-marketing at the Essence Music Festival, and flew him in for that purpose at significant cost. (PUMF Nos. 18-21.) Miller also scheduled other marketing events and spent money on graphics for product packaging, marketing, and promotional items in advance of the Essence Music Festival, including T-shirts, lighters, key chains, billboards, advertising on taxicabs, email marketing, and radio and social media advertisements, all of which cost hundreds of thousands of dollars. (PUMF Nos. 21, 22.) He received an invoice for $389,186 for just the advertising alone. (PUMF No. 22.) 
 
Based upon the above facts, if the statute of frauds applies, a triable issue of material fact exists regarding whether Plaintiffs changed their position to their detriment as a result of the agreement with Defendants so that Defendants are estopped from raising the Statute of Frauds defense.
 
The motion for summary adjudication of the first cause of action for breach of an oral contract and second cause of action for breach of an implied contract is DENIED.
 
2. Fourth Cause of Action for Fraud; Fifth Cause of Action for Negligent Misrepresentation
Defendants argue that Plaintiffs’ causes of action for intentional or negligent misrepresentation fail because the alleged misstatements are not actionable. They argue that all of the alleged misstatements are promises to do something in the future and that because a false promise cannot give rise to a negligent misrepresentation claim, they urge the Court to grant summary adjudication of Plaintiffs’ fifth cause of action for negligent misrepresentation. They also argue that while a false promise can give rise to a claim for intentional misrepresentation, a claim for “promissory fraud” requires Plaintiffs to prove Defendants made the promises without any intent to perform and that such proof requires evidence of something more than nonperformance of the promise, which is all Plaintiffs allege. Thus, they urge the Court to also grant summary adjudication of Plaintiffs’ fourth cause of action for fraud.
 
a. Intention Misrepresentation/Fraud
“To avoid summary adjudication of [their intentional misrepresentation claim], [Plaintiffs must] produce evidence of (1) a misrepresentation, (2) knowledge of falsity , (3) intent to defraud , (4) justifiable reliance, and (5) resulting damage.” (Unterberger v Red Bull N Am., Inc. (2008) 162 Cal.App.4th 414, 423.) “It is hornbook law that an actionable misrepresentation must be made about past or existing facts.” (SF Design Ctr. Assocs. v. Portman Cos. (1995) 41 Cal.App.4th 29, 43-44; Cansino v. Bank of Am. (2014) 224 Cal.App.4th 1462, 1469 (“The law is well established that actionable misrepresentations must pertain to past or existing material facts.”).) This is because “[s]tatements or predictions regarding future events are deemed to be mere opinions which are not actionable.” (Cansino, supra, at 1469.)
 
While a false promise can, in rare cases, amount to an actionable misrepresentation, “promissory fraud is not easily established.” (Riverisland Cold Storage, Inc. v. Fresno-Madera Prod. Credit Ass’n (2013) 55 Cal.4th 1169, 1183 (quoting Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30).) “[I]n order to support a claim of fraud based upon the alleged failure to perform a promise, it must be shown that the promisor did not intend to perform at the time the promise was made.” (Conrad v. Bank of Am. (1996) 45 Cal.App.4th 133, 157.) “Promissory fraud thus consists of making a promise without the present intention to perform it, i.e., misrepresenting the speaker’s then-present intentions.” (Yield Dynamics, Inc. v. TEA Sys. Corp. (2007) 154 Cal.App.4th 547, 575 (emphasis in original).) However, “[m]ere nonperformance of a promise does not establish that the promise was fraudulent when made.” (Yield Dynamics, supra, at 576.)
 
The alleged promises are that Privateer intended to produce and distribute the Master P’s Trees brand of cannabis for Plaintiffs; that Defendant Groh would engage his publication company, Leafly, to work with Mr. Miller to serve as the face and active brand ambassador for the Master P’s Trees brand; and that Privateer would distribute the Master P’s Trees cannabis products to dispensaries in the State of California through their direct distribution channel which utilized Leafly and direct affiliations with said dispensaries. (Complaint, ¶¶ 60-64, 100.) Thereafter, on April 25, 2017, Defendant Groh allegedly falsely stated in a text message to Plaintiff Miller that he was working on product formulations and that the product’s flavor profiles would be presented for Mr. Miller’s approval soon, that he was in agreement with the cross marketing plan involving the Snoop Dogg brand of cannabis, and that Leafly would promote the launch of the brand at the Essence Music Festival. (See UMF 19-26.)
 
While most of these are promises to perform in the future, in addition to the above promises, Plaintiffs argue that Defendant falsely stated that the product formulation for the brand was being worked on, that the product was “on track,” and that Snoop Dogg was set to promote Plaintiffs’ brand at the Essence Music Festival. (PUMF 18-20.) As these are representations of existing facts, a triable issue of material fact exists with respect to these allegations.
 
Additionally, Defendants have not provided evidence establishing that Plaintiffs cannot prove that Defendants did not intend to perform at the time the promises of future events were made. Plaintiffs argue that two emails between Defendant Groh and Groh’s employee, Anton Albrand, give rise to the inference that Defendants never intended to perform. In one email Albrand stated "I'm going to slow this thing down since we don't even have a deal structure and we don't need any competitive celebrity deals ... if they want to distribute finished goods that's fine but we can't source materials and do product development for these guys." (PUMF Nos. 26-27.) On May 30, 2017, Groh sent an email to Albrand asking him to get a copy of Privateer's "marketing plan so we know that we are up against?" (PUMF No. 38.) In considering the evidence in the light most favorable to the opposing party, these two emails can give rise to an inference that Privateer is disavowing the existence of the deal structure that had been agreed because it never wanted a competing celebrity deal and never intended to source materials and develop products for Plaintiffs; that Privateer merely wanted to know, for purposes of marketing its Bob Marley brand, what marketing the celebrity competition was doing.
 
Accordingly, the motion for summary adjudication of Plaintiffs’ cause of action for intentional misrepresentation is DENIED.
 
b. Negligent Misrepresentation
To avoid summary adjudication on their negligent misrepresentation claim, Plaintiffs must establish five elements: (1) a “misrepresentation of a past or existing material fact”; (2) “without reasonable ground for believing it to be true”; (3) “with intent to induce another’s reliance on the fact misrepresented”; (4) “ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed”; and (5) “resulting damage.” (Shamsian v. Atl. Richfield Co. (2003) 107 Cal.App.4th 967, 983, 985.)
 
Unlike intentional misrepresentation, a false promise is not actionable in a claim for negligent misrepresentation. (Stockton Mortg, Inc. v. Tope (2014) 233 Cal.App.4th 437, 458 (“Although a false promise to perform in the future can support an intentional misrepresentation claim, it does not support a claim for negligent misrepresentation”) (emphasis in original).)
 
Defendants argue that Plaintiffs’ cause of action for negligent misrepresentation rests on the same statements underlying their intentional misrepresentation cause of action and that all such allegations are based upon a promise to perform. However, as stated above, there are claimed misrepresentations that relate to present or existing facts rather than promises related to future events. Accordingly, the motion for summary adjudication of Plaintiffs’ cause of action for negligent misrepresentation is DENIED.
 
Plaintiffs’ counsel is directed to submit an order consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).
 
 
II. Defendants’ Motion to Compel the Production of Documents in response to Request for Production Nos 22, 44, and 51.
The second motion on calendar in this case is Defendants’ motion to compel compliance with their discovery requests. Defendants Privateer Holdings, Inc. (“Privateer”) and Christian Groh (together “Defendants”) move this Court for an order compelling Plaintiffs Green League Ventures, LLC, dba “Master P’s Trees” (“GLV”) and Percy Miller, aka Master P (together “Plaintiffs”) to produce documents in response to Requests for Production (“RFP”) Nos. 22, 44, and 51. The motion is GRANTED as to RFP Nos. 22 and 44 and DENIED as to RFP No. 51. Sanctions are GRANTED in the amount of $8,500.
 
Defendants’ objection to plaintiffs’ day-late opposition is OVERRULED. As Defendants have had an opportunity to respond, the court will consider Plaintiffs’ opposition.
 
a. Defendants’ RFP Nos. 22, 44
Defendants argue that this Court should compel Plaintiffs to produce documents in response to RFP Nos. 22 and 44 because Plaintiffs agreed to produce all text messages relevant to the allegations in the complaint, yet they have not produced a single text message from Miller’s mobile device. Nor have Plaintiffs produced any texts forwarded by Miller to his business associate, Alex Yaghoub, for production in this case. (Goldmark Decl.¶ 5.)
 
Defendants’ RFP number 22 requested Plaintiffs “Produce all text messages concerning the allegations in the Complaint.”
 
Plaintiffs responded:
 
Plaintiff objects to this request on the grounds that the request is vague, ambiguous, unintelligible, overly broad, unduly burdensome and oppressive. Subject to and without waiving the foregoing objections, and responding as it reasonably interprets this request, Plaintiff responds as follows: After a diligent search and reasonable inquiry, all responsive, non-privileged documents in Plaintiff s possession, custody, and control and to which no objection is being made will be produced. Investigation and discovery is still continuing. Plaintiff reserves the right to amend and/or supplement this response as additional documents are discovered.
 
Defendants’ RFP No. 44 requests Plaintiffs “Produce all text messages stored on or sent from the mobile device of Percy Miller concerning (a) the allegations in the Complaint, (b) the Master P's Trees brand, (c) Privateer or its agents, or (d) the development or production of the Master P's Trees brand by other cannabis companies.”
 
Plaintiffs responded:
Objection. Invades attorney-client privilege and calls for work product. Also may invade one or both plaintiffs' right to privacy. Without waiving those objections, Plaintiff responds: All documents in the demanded category that are in the possession, custody, or control of Plaintiff and to which no objection is being made have already been produced in that they were either copied to or forwarded to Alex Yaghoub for production previously.
 
Plaintiffs now state that they would comply and turn over Miller’s text messages except that he no longer has any relevant text messages on his phone. Plaintiffs’ opposition states: “Miller does not often text and routinely deletes texts every so often. His recollection, as stated in his deposition testimony cited on the motion, is that he forwarded whatever he had to Yaghoub for production, but in any event, he does not have any to produce. As of this writing, plaintiffs' counsel has prepared further responses to Request Nos. 22 and 44 stating the inability to produce in accordance with statutory requirements, and those further responses are out for verification.”
 
As the texts have allegedly been deleted, Defendants argue that this court should compel Mr. Miller to make his mobile device available for a search by a forensics expert.
 
“If the responding party claims the demanded ESI [electronically-stored information] does not exist or has been destroyed, the demanding party may, on a showing of ‘good cause’, seek an order for a search of the responding party’s computer and backup systems.” (Weil & Brown ¶ 8:1490.5; see also CCP section 2031.310(e).) Defendants offer to pay for the costs of an expert, stipulate to reasonable search restrictions to protect confidential or irrelevant information, and agree that any information recovered from the search will be reviewed initially by Miller’s attorney for the opportunity to assert any legitimate privilege claim.
 
As any responsive texts are relevant and Plaintiff initially agreed to produce them, the court will grant the motion as to RFP numbers 22 and 44. The court finds good cause exists to grant Defendants’ request to have a forensic expert examine Plaintiff Miller’s phone. It appears that Mr. Miller deleted texts during the course of this litigation. Plaintiffs’ counsel represents that Miller “does not keep texts on his phone,” but that claim is contradicted by Miller’s verified discovery response stating he “forwarded [his texts] to Alex Yaghoub for production previously,” (Goldmark Compel. Decl. Ex. D [RFP No. 44]), and by Miller’s deposition testimony stating the same thing. (Goldmark Compel Decl. Ex. B at 300: 16-25.) In light of the fact that Mr. Miller caused the problem, any burden to him is outweighed by Defendants’ need for the evidence.
 
The court orders that Defendants pay all costs associated with the information recovery and any information recovered must be reviewed initially by Plaintiff Miller’s attorney, with an opportunity to object to the release of the text messages to Defendants.
 
c. RFP No. 51 (Pre-August 2017 Communications Between Yaghoub and His Brother):
Defendants argue that the Court should compel Plaintiffs to produce all relevant pre-August 2017 communications between Alex Yaghoub (Miller’s business associate) and Yaghoub’s brother, Andrew Jacobson (co-counsel for Plaintiffs), because Plaintiffs cannot carry their burden to establish that those communications are privileged.
 
Defendants’ RFP No. 51 requested that Plaintiffs “Produce all communications between Alex Yaghoub and his brother Andrew Jacobson prior to August 2017 when Plaintiffs engaged the law firm of Engstrom, Lipscomb & Lack, P.C. to represent them in connection with this lawsuit, including all emails, text messages, and the communications identified on the privilege log that Plaintiffs sent to Defendants on March 22, 2019.”
 
Plaintiffs responded to RFP number 51 with a series of objections stating that the information contains privileged, confidential attorney-client communications; that the request seeks disclosure of matter which is protected by the attorney work-product doctrine; that the request seeks information that invades responding party's right of privacy; and that the request is overly broad, burdensome and oppressive.
 
First, pre-August 2017 communications between Yaghoub and his brother about the Master P's Trees brand, GLV, or Privateer are relevant because they might reasonably assist Defendants in defending against this lawsuit or lead to the discovery or other admissible evidence.
 
However, the attorney-client privilege limits disclosure of confidential communications between a lawyer and client. (Evid. Code § 954.) “But not all communications with attorneys are subject to that privilege.” (Caldecott v. Superior Ct. (2015) 243 Ca1.App.4th 212, 227.) The attorney-client privilege follows from the establishment of the professional relationship between client and attorney. (Moeller v. Superior Ct. (1997) 16 Cal.4th 1124, 1130.) Once this relationship is established, the attorney-client privilege attaches to communications made in confidence during the course of the relationship. (Ibid.) As such, “[i]n assessing whether a communication is privileged, the initial focus of the inquiry is on the 'dominant purpose of the relationship’ between attorney and client and not on the purpose served by the individual communication.” (Fiduciary Tr. Int’l v. Klein (2017) 9 Cal.App.5th 1184, 1198 (emphasis in original).) The party claiming the attorney-client privilege as a bar to disclosure has the burden of showing that the communication sought to be suppressed falls within the parameters of the privilege. (Doe 2 v. Superior Ct. (2005) 132 Ca1.App.4th 1504, 1522 (citation & internal quotation marks omitted).) Although the information must have been transmitted, or the advice given, “in the course of that relationship” (Evid. Code, § 952), there is no requirement that the attorney actually be employed in order to create an attorney-client relationship. (Benge v. Superior Court (1982) 131 Cal.App.3d 336, 345.) Evidence Code section 951 states the prevailing view that a person may discuss a potential legal problem with an attorney for the purpose of obtaining advice or representation, and the statements made are privileged whether or not actual employment ensues. (Ibid. [citations omitted.])
 
Defendants argue that the communications between Yaghoub and Jacobson where not in Jacobson’s capacity as an attorney. At his first deposition, Yaghoub testified that he did not seek legal advice from his brother about this matter before August 2017. (See Ex. E, at 165:6-10 ("Q: [W]as he your attorney before August 2017 with respect to your dealings on behalf of GLV? A: No, he was not."); id. at 166:16-23 ("[W]e officially retained them in August, but it could have been a little bit later. I'm not certain about the date exactly. It was sometime around then that their firm became our lawyers, our attorneys."); id. at 110:2-7 ("Q: I just want to make sure I'm crystal clear on this point. Before August 2071, did you ever ask Mr. Jacobson for any input on the discussions with Privateer? A: No, I did not."); id. at 162:25-163:4 ("Q: Before August 2017, had you mentioned to Mr. Jacobson GLV or your discussions with Privateer? A: No. Q: Never? A: No."); id. at 169:22-23 ("I had no previous discussions with him in regards to that.").)
 
Plaintiff argues that even though Yaghoub had not formally retained Jacobson as his attorney before August 2017 with respect to his dealings on behalf of GLV does not mean he did not consult him about legal matters. Yaghoub has clarified his deposition testimony stating that he included his brother in emails in order to see if Jacobson “saw any legal issues.” (Ex. J. to the Declaration of Goldmark.) 
 
Clarification of Yaghoub’s testimony was not made within the required time allowed to correct the deposition transcript as Plaintiffs did not serve it within fifteen days of receiving the finalized transcript, as they stipulated on the record. (Ex. E at 340:24-341:12.) This shortened period is enforceable by statute, which provides that the deponent may change an answer to a question within thirty days of receiving the transcript “unless the attending parties and the deponent agree on the record to a shorter time period.” (Code Civ. Proc. § 2025 .520(b).) Pursuant to their own stipulation, Plaintiffs had until March 1 to serve an errata sheet, but they did not do so until twenty-seven days later on March 28. (Goldmark Decl. ¶¶8, 14; Ex. J.)
 
Additionally, “[i]f the deponent fails or refuses to approve the transcript within the [30-day] allotted period, the deposition shall be given the same effect as though it had been approved, subject to any changes timely made by the deponent.”  (Code Civ. Proc., § 2025.520(f).)
 
However, contrary to Mr. Yaghoub’s deposition testimony, it is clear from the subject descriptions on the privilege log that Yaghoub and Jacobson were discussing Privateer, GLV, and Percy Miller prior to August 2017. (Exhibit H to Goldmark decl.) For example, subject lines refer to “Happy Nation Inc. Joint Venture Agreement, P Miller Trademark License Agreement,” “Joint Venture Agreement,” “Master P’s Trees Launch Distribution,” Master P’s Trees and Gold Oil Marketing Plan,” “Privateer Contract,” and “Final Revision of Privateer Contract and License Agreement.” (Ibid.) These are not general conversations between brothers. There is no indication that Andrew Jacobson was involved in GLV in any other capacity than as an attorney. Therefore, it appears that the dominant purpose of the relationship, as it related to the pre-August 2017 communications between Yaghoub and Jacobson, is Yaghoub’s desire to seek and obtain legal advice. Accordingly, in light of the liberal construction in favor of the exercise of the privilege, this court find that the attorney-client privilege applies. 
 
The attorney-client privilege is absolute and precludes disclosure of confidential communications even though they may be highly relevant to a dispute. (Evid. Code § 954.) Accordingly, Defendants motion to compel RFP number 51 is DENIED.
 
Sanctions
CCP section 2031.320, provides: “Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”
 
CCP section 2031.320(d)(1)provides: “Notwithstanding subdivisions (b) and (c), absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.”
 
This court finds that subsection (d)(1) does not apply in this case where ESI was deleted during the course of the litigation. Additionally, the court finds that Plaintiffs did not have substantial justification to oppose this motion. Accordingly, as Plaintiffs unsuccessfully opposed the motion with respect to RFP numbers 22 and 44, sanctions are GRANTED, in part. Sanctions are also DENIED, in part, because Plaintiffs successfully opposed the motion with respect to RFP number 51. Sanctions are awarded in Defendants’ favor in the amount of $8,500.
 
Defendants’ counsel is directed to submit an order consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).
 
 
III. Defendant’s Motion for Sanctions
The third motion on calendar in this case is Defendants’ motion for sanctions. Defendants Privateer Holdings, Inc. (“Privateer”) and Christian Groh (collectively, “Defendants”) move for an order imposing sanctions against Plaintiff Percy Miller (“Miller”), in the amount of approximately $31,619.04 for the attorneys’ fees and costs incurred in bringing this motion, as well as statutory damages and costs for travel, a court reporter, and a videographer for two properly noticed and confirmed depositions at which Miller failed to appear. This motion is made pursuant to California Rules of Court 2.30, Local Rules of Court 4.5, and Code of Civil Procedure §§ 2023.010, et seq., and § 2025.450.
 
Defendants argue that Miller twice failed to appear at properly noticed and confirmed depositions, and both times, he waited to disclose his nonappearance until after business hours on the eve of his deposition—even though he knew Defendants’ counsel had travelled from Seattle to Los Angeles on each occasion. Defendants state that the first time Miller claimed to have suddenly come down with the flu. The second time, Miller claimed to have undisclosed obligations to the family of a deceased friend. Defendants state that he was actually in Hawaii the day before and spent the day of his deposition promoting a sneaker brand and upcoming concert appearance. Thereafter, when Defendants were finally able to depose Miller, Defendants state that he refused to testify about the reasons he failed to appear for his second properly noticed deposition.
 
Defendants cite CCP section 2025.450(g)(1) for the proposition that this court must impose a monetary sanction against a party who fails to appear for a properly noticed deposition. Section 2025.450(g)(1) provides: “If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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.”
 
However, Defendants have not brought a motion pursuant to CCP section 2025.450(a). Even though the parties stipulated to an order compelling defendant Miller’s deposition, a motion to compel is required for sanctions to issue; Defendants have not provided authority that the court may order sanctions pursuant to CCP section 2025.450 when no section 2025.450 motion has been filed.
 
However, pursuant to Green v. GTE California, Inc. (1994) 29 Cal.App.4th 407, sanctions are warranted for Miller’s failure to comply with Code Civ. Proc. § 2025.330. Miller violated CCP section 2025.330 by bringing a videographer without first giving notice and continuing to record over Defendants’ counsel’s objection.
 
Defendant also brings the motion pursuant to Rules of Court, Rule 2.30 and Local Rule 4.5. Rules of Court, Rule 2.30 applies to the rules in the California Rules of Court. (CRC, Rule 2.30(a).) Defendants have not identified court rules allegedly violated by Plaintiffs. The court declines to award sanctions pursuant to Local Rule 4.5 as the issue is not argued in Defendants’ initial motion.
 
For the reasons stated above, the motion for sanctions is GRANTED, in part, and DENIED, in part. The court awards sanctions in the amount of $950 for Miller’s failure to comply with CCP section 2025.330.
 
Moving party is directed to submit an order consistent with this tentative ruling.
 

If any party wishes to contest the tentative ruling on SCV-262172, oral argument on this matter will be held on November 15, 2019 at 2:30 p.m. in Dept. 17.

 
 
 
4.         SCV-264208, Blakely v. Varenna Assisted Living, LLC:
On calendar is plaintiffs’ motion to disqualify defendants’ counsel, Christian Holland, of Oakmont Management Group; Alexander Giovanniello, Cat Bulaon, and Phuong Nguyen from The Giovanniello Law Group; and Thomas Ingrassia and Jennifer Suberlak from Petit Kohn Ingrassia Lutz & Dolan PC. In addition, plaintiffs seek an order compelling defendants and their counsel to reveal the time, place, and substance of all communications between Nathan Condie and/or defense counsel and Plaintiffs Joan Coke and Helen Straessle; prohibiting Defendants and their current counsel, or any newly appointed counsel, from utilizing at trial or in any other manner any communications from Plaintiffs Joan Coke and/or Helen Straessle; and prohibiting Defendants or their counsel, current or newly appointed, from obtaining or using any testimony from Plaintiff Helen Straessle in any manner whatsoever.
 
On September 10, 2019, this court granted Defendants’ motion to compel arbitration and to stay the litigation. The order specified that all but the eleventh cause of action was set to arbitration and the eleventh cause of action was stayed pending arbitration of the remaining causes of action.
 
Once a court grants the petition to compel arbitration and stays the action at law, the action at law is abated, and vestigial jurisdiction over the action at law consists solely of making the determination, upon conclusion of the arbitration proceedings, of whether there was an award on the merits, in which case the action at law should be dismissed because of the res judicata effects of the arbitration award. (CCP §§ 1281.4, 1292.8, Dial 800 v. Fesbinder (2004) 118 Cal. App. 4th 32.)
 
The motion to disqualify should be directed to the arbitrator. (See Benasra v. Mitchell Silberberg & Knupp (2002) 96 Cal.App.4th 96 [arbitration panel decided disqualification motion], Guseinov v. Burns (2006) 145 Cal.App.4th 944, 949 [arbitrator denied defendant's motion to disqualify plaintiff's counsel].)
 

Accordingly, the motion to disqualify counsel is DROPPED.

 
 
 
 
 
 
 
TENTATIVE RULINGS FOR NOVEMBER 6, 2019 HEARINGS:
 
1.         SCV-258483, Lopez v. Scodel:
The motion to be relieved as counsel is GRANTED.
 

Moving counsel is directed to submit an order consistent with this tentative ruling.

 
 
 
2.         SCV-260050, Bartlett v. Affordable Care, LLC:
Plaintiff’s unopposed motion for leave to file an amended complaint to add causes of action for Violation of Consumer Legal Remedies Act, Negligent Misrepresentation, and Intentional Misrepresentation, and to allege punitive damages is GRANTED. Plaintiff shall file a Proposed First Amended Complaint within five (5) days of this order.
 

Plaintiff is directed to submit an order consistent with this tentative ruling.

 
 
 
3.         SCV-262887, Velasquez v. FCA US LLC:
Due to the impact of the wildfires on the court’s calendar, on the court’s own motion, this matter will be continued to December 11, 2019 at 3:00 p.m. in Dept. 17.
 
 
 
4.         SCV-262980, Cantarutti v. State Farm General Insurance Company, an Illinois Corporation:
The court has reviewed the plaintiffs’ Motion to Compel Documents from National General Insurance Company, along with all its attachments, and has reviewed defendant Cline’s Opposition thereto, along with all its attachments.
 
Additionally, the court has reviewed the relevant Stipulation and Order to Modify Subpoena.
 
Accordingly, Plaintiff’s timely Motion is granted, as limited by the subject Stipulation. The subject request has limited relevance to this action.
 

Plaintiff shall immediately prepare an Order for the court’s signature pursuant to California Rule of Court, Rule 3.1312.

 

 

5.         SCV-263062, Siemsen v. Summers:
Due to the impact of the wildfires on the court’s calendar, on the court’s own motion, this matter will be continued to November 15, 2019 at 2:30 p.m. in Dept. 17.
 
 
 
6.         SCV-263907, Alvarez v. Miller:
Due to the impact of the wildfires on the court’s calendar, on the court’s own motion, this matter will be continued to December 11, 2019 at 3:00 p.m. in Dept. 17.
 
 
 
7.         SCV-264985, Oswald v. Deutsche Bank National Trust:
Due to the impact of the wildfires on the court’s calendar, on the court’s own motion, this matter will be continued to December 18, 2019 at 3:00 p.m. in Dept. 17.
 
 
© 2019 Superior Court of Sonoma County