Plaintiffs_motion_to_tax_costs_claimed_by_defendant_food_management_partners_42418_9_am_d13_atty_baileyMotionCal. Super. - 6th Dist.December 14, 2016A N G L I N F L E W E L L I N G R A S M U S S E N C A M P B E L L & T R Y T T E N LL P EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16CV303987 Santa Clara - Civil Robert A. Bailey (SBN 214688) rbailey@afrct.com ANGLIN FLEWELLING RASMUSSEN CAMPBELL & TRYTTEN, LLP 301 N. Lake Ave., Ste. 1100 Pasadena, California 91101-4158 Telephone: (626) 535-1900 Facsimile: (626) 577-7764 Attorneys for Plaintiff LEGACY GOLDEN STATE, LLC Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/26/2018 1:09 PM Reviewed By: A. Hwang Case #16CV303987 Envelope: 1348508 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA LEGACY GOLDEN STATE, LLC, Plaintiff, V. COCO’S RESTAURANTS, INC,, et al, Defendants. AND RELATED CROSS-ACTION Case No.: 16-CV-303987 PLAINTIFF’S MOTION TO TAX COSTS CLAIMED BY DEFENDANT FOOD MANAGEMENT PARTNERS Date: April 24, 2018 Time: 9:00 a.m. Dept: 13 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: . Hw PLEASE TAKE NOTICE that on April 24, 2018 at 9:00 a.m. in Dept. 13 of this Court Located as 191 N. First Street, San Jose, California Plaintiff, Legacy Golden State, LLC (“Legacy”) will and hereby does move for an order taxing Defendant Food Management Partners’ (“FMP”) memorandum of costs in the amount of $2,933.06. Specifically, Plaintiff requests the court tax and disallow items 4 (Deposition Costs of $2,443.06) and Item 16 (Court Reporter for 9/13/17 Hearing for $530.00) in the Memorandum of Costs filed on or about March 6, 2018. 40770/000003/02009636-1 ang NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS A N G L I N F L E W E L L I N G R A S M U S S E N C A M P B E L L & T R Y T T E N LL P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 This motion is based on the accompanying memorandum of points and authorities, the supporting Request for Judicial Notice, the declaration of Robert A. Bailey, documents on file in this action, and such other evidence that may be presented at the hearing on this matter. Respectfully submitted, Dated: March 26, 2018 ANGLIN, FLEWELLING, RASMUSSEN, CAMPBELL & TRYTTEN LLP vy, TCL) 7 ae K Robert A. Bailey Attorneys for Plaintiff LEGACY GOLDEN STATE, LLC 40770/000003/02009636-1 2 NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS A N G L I N F L E W E L L I N G R A S M U S S E N C A M P B E L L & T R Y T T E N LL P EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION Plaintiff Legacy Golden State, LLC (“Legacy”) brought this action against its former tenant, Coco’s Restaurants, Inc. (“Coco’s”) for damage done to its real property located in Sunnyvale, California (the “Property”). Legacy regained possession of its Property through an unlawful detainer action brought in this Court. During that UD Action, it became clear that Coco’s was controlled by and mingled its assets with other entities. Coco’s designated person most knowledgeable was employed by Food Management Partners (“FMP”) and admitted that FMP and its affiliate, Catalina Restaurant Group, Inc. (“Catalina”), made Coco’s management decisions and controlled its assets. As such, Legacy named both FMP and Catalina as defendants in this action. During discovery in this action, FMP insisted that it is not Coco’s alter ego and actually has no ownership interest in Coco’s. Upon receipt of verified statements confirming these facts, Legacy agreed to dismiss FMP from the action. It did so in a Request for Dismissal that was filed and entered by the clerk on February 15, 2018. (Bailey Ex. 1). Despite service of this Request on FMP on February 15, 2018, FMP is seeking Costs for a deposition taken February 21,2018. It also seeks costs for a court reporter for a motion in which it had no interest and did not file an opposition. These costs are not only unreasonable, they are also invalid and overreaching. 2. STANDARDS FOR RECOVERY OF COSTS The recovery of costs is purely a function of statute. Costs statutes are to be strictly construed. Sequoia Vacuum Systems v. Stransky, 229 Cal. App.2d 281, 289 (1964). As such, only those items specifically enumerated are recoverable. Id. If the items are properly objected to, however, then the party seeking costs bears that burden. Ladas v. California State Auto. Assn., 19 Cal. App.4th 761, 774 (1993). A court has no discretion to award costs which are not statutorily authorized. Id. Code of Civil Procedure §1032 permits the recovery of costs to the prevailing party, but limits that recovery to those costs that are both reasonable in amount and reasonably necessary to 40770/000003/02009636-1 1 MEMORANDUM OF POINTS AND AUTHORITIES A N G L I N F L E W E L L I N G R A S M U S S E N C A M P B E L L & T R Y T T E N LL P EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the conduct of the litigation. Thus, costs that are merely convenient or beneficial to the preparation of the case are disallowed. CCP §1032.5(c)(2); Nelson v. Anderson, 72 Cal.App.4th 111,129 (1999). The court also has the power to reduce the amount of any cost item to an amount that is reasonable. Perko’s Enterprises, Inc. v. RRNS Enterprises, 4 Cal.App.4th 238, 245 (1992). 3. FMP CANNOT RECOVER FOR COSTS INCURRED BY OTHER DEFENDANTS OR AFTER IT WAS DISMISSED Legacy challenges the following specific items of costs in FMP’s overreaching memorandum. Item 16 - Court Reporter Fees for 9/13/2017 Hearing. - $530.00 FMP seeks costs for a court reporter hired to cover a short hearing on Legacy’s motion for a prejudgment right to attach order. That motion, however, was not directed at FMP. (See Bailey Decl., Ex. 2). Legacy sought only to attach the assets of defendants Coco’s. and Catalina. (Id). FMP is not the subject of the motion. Indeed the response to the motion was filed solely by Coco’s and Catalina. (Bailey Decl., Ex. 3). Only one of these two entities would have any reason to hire a court reporter for that hearing. FMP did not incur this cost, Catalina or Coco’s did. If FMP did incur the cost, it was unreasonably taking on the debts of the other defendants.’ Additionally, the amount claimed, $530, is excessive and unreasonable for a hearing that lasted less than 30 minutes. Item 4 - Deposition Costs - $2.443.06 FMP is apparently seeking to recover the entire cost of the deposition of Legacy’s person most knowledgeable, Walter Scott, taken February 21, 2018. There are several problems with this request. First, by February 21, 2018, FMP had been dismissed from the case. (Bailey Decl., Ex. 1). It cannot claim to have necessarily and reasonably incurred fees to take a deposition after it had already been dismissed. " Given FMP’s strident assertion that it is not the alter ego of Coco’s or Catalina, paying the obligations of either of them would be patently unreasonable. 40770/000003/02009636-1 2 MEMORANDUM OF POINTS AND AUTHORITIES A N G L I N F L E W E L L I N G R A S M U S S E N C A M P B E L L & T R Y T T E N LL P $5 ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 2] 22 23 24 2) 26 27 28 Second, during the deposition, counsel for FMP acknowledged based on the request for dismissal, there was no need for him to inquire about any claims involving FMP. (Bailey Decl, Ex. 5). As such, there could not have been any valid reason for FMP to order copies of the transcript or video recording. Third, FMP is again, apparently seeking to recover costs incurred by Catalina and Coco’s. The deposition notice said it would be taken on behalf of Catalina, Coco’s and FMP. (Bailey Decl., Ex. 4). Even if FMP had a reason to take the deposition six days after it had been dismissed, its share of the cost could not exceed 1/3 of the total incurred by these three parties. Fourth, the costs claimed are excessive. CCP § 1032(a)(3)(A) allows for the cost of the original and one copy of transcripts taken by the claimant. As noted above, this deposition was not taken by the FMP. But even if it was, the amount claimed suggests FMP obtained more than one copy of the transcript or video recording. 4. CONCLUSION For the foregoing reasons, the Court should tax and disallow the costs awardable to FMP’s by $2,933.06. Respectfully submitted, Dated: March 26, 2018 ANGLIN, FLEWELLING, RASMUSSEN, CAMPBELL & TRYTTEN LLP By: rl 7 haa “Robert A. Bailey hs Attorneys for Plaintiff LEGACY GOLDEN STATE, LLC 40770/000003/02009636-1 3 MEMORANDUM OF POINTS AND AUTHORITIES A N G L I N F L E W E L L I N G R A S M U S S E N C A M P B E L L & T R Y T T E N LL P OO 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 37 28 DECLARATION OF ROBERT A. BAILEY I, Robert A. Bailey, declare: 1. I am a partner with the law firm of Anglin, Flewelling, Rasmussen, Campbell & Trytten, LLP, counsel of record for Plaintiff, Legacy Golden State, LLC (“Legacy”) in this matter. I was also counsel for Legacy in the companion unlawful detainer action entitled Legacy Golden State, LLC v. Coco's Restaurants, Inc., et al, Case No. 16-CV-294425 (the “UD Action”). As such, I have personal knowledge of the matters stated herein. 2 On February 15, 2018, I filed and served a Request for Dismissal of Food Management Partners (“FMP”). The clerk apparently entered the dismissal the same day. Attached as Exhibit 1 is a true and correct copy of the Request for Entry of Dismissal as entered by the clerk, as well as the proof of service of the Request on counsel for FMP. 3. On March 30, 2017, I filed a Motion for Right to Attach Order as to the assets of defendants Coco’s Restaurants, Inc. (“Coco’s™) and Catalina Restaurant Group, Inc. (“Catalina”). That motion was not directed at FMP. Attached as Exhibit 2 is a true and correct copy of the Notice of Motion for that motion. Attached as Exhibit 3 is a true and correct copy of the Notice of Opposition to the motion I received from Coco’s and Catalina. I received no such notice and no opposition from FMP. 4. On or about January 11, 2018, I received a notice of deposition for Legacy’s Person Most Knowledgeable. The deposition was noticed jointly by FMP, Coco’s and Catalina. Attached as Exhibit 4 is a true and correct copy of that notice. The deposition took place on February 21, 2018, after FMP had been dismissed from the action. Attached as Exhibit 5 is a true and correct copy of a portion of the deposition transcript in which counsel for Coco’s, Catalina and FMP indicates he has no questions on behalf of FMP based on the Request for Dismissal. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed March 26, ez 8 ire o> Robert A. Bailey 40770/000003/02009636-1 1 BAILEY DECLARATION EXHIBIT 1 CIV-110 ATTCRNEY CR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address). Robert A. Bailey (#214688) 301 N. Lake Ave, Suite 1100 Pasadena, California 91106 teterrone no: (626) 535-1900 E-MAIL ADDRESS (Optionar: Dailey @ afrct.com attorney FoR (vme) Legacy Golden State, LLC Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP FAX NO. (optional; (B26) 577-7764 FOR COURT USE ONLY E-FILED 2/15/2018 3:38 PM Clerk of Court Superior Court of CA, County of Santa Clara 16CV303987 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA STREET ADDRESS 191 North First Street MAILING ADDRESS: CITY AND ZIP CODE; San Jose, California 95113-1090 erancriname: SANTA CLARA Reviewed By: R. Aragon Envelope:1226355 PLAINTIFF/PETITIONER: Legacy Golden State, LLC DEFENDANT/RESPONDENT: Coco's Restaurants, Inc ; Mizu Sushi Bar & Grill, Inc REQUEST FOR DISMISSAL CASE NUMBER: 16cv303987 A conformed copy will not be returned by the clerk unless a method of return is provided with the document. class action. (Cal. Rules of Court, rules 3.760 and 3.770.) This form may not be used for dismissal of a derivative action or a class action or of any party or cause of action in a 1. TO THE CLERK: Please dismiss this action as follows: a. (1) 0 with prejudice (2) [XJ Without prejudice b. (1) ZA Complaint (2) [3 Petition (3) (Ld Cross-complaint filed by (name): 4) (3 Cross-complaint filed by (name): (5) [LJ Entire action of all parties and all causes of action (6) XX Other (specify):* 2. (Complete in all cases except family law cases.) on (date): on (date): as to defendant Food Management Partners, a Texas corporation, only The court [_Bdid [}did not waive court fees and costs for a party in this case. (This information may be obtained from the clerk. If court fees and costs were waived, the declaration on the back of this form must be completed). Date: February 14, 2018 Raber A.Baley...ummismmimnnmnsimmssismssssss {TYPE OR PRINT NAME OF xa ATTORNEY J PARTY WITHOUT ATTORNEY) If dismissai requested is of specified panies only, of specified causes of action only, or of specified cross-complaints only, so state and identity the parties, causes of aclion, or cross-complaints to be dismissed. 3. TO THE CLERK: Consent to the above dismissal is hereby given.” Date: {Type OR PRINT NAME OF (J) ATTORNEY [LD PARTY WITHOUT ATTORNEY) * If a cross-complaint - or Response (Family Law) seeking affirmative relief - is on file, the atiorney for the cross-complainant {respondent) must Son this consent if required by Code of Civil Procedure section 581(i) or {j). (To be completed by clerk) vTap 7 [fn red - ed Eo po (SIGNATURE) ~nere Attorney or party without attorney for: Legacy Golde n State. LLC XA Piaintitf/Petitioner 3} Cross-Complainant 1) Defendant/Respondent > (SIGNATURE) Attorney or party without attorney for: 1) Puaintiff/Petitioner (1) Defendant/Respondent [1] Cross-Complainant Dismissal entered as requested on (date): 2/15/2018 3:38 PM a. KJ 5. Ql Dismissal entered on (date): 6. (0 as to only (name): Dismissal not entered as requested for the following reasons (specify): 7. a. KX} Attorney or party without attorney notified on (date): 2/15/2018 3:38 PM b. [CL] Attorney or party without attorney not notified. Filing party failed to provide J acopytobecontormed [_] means to return conformed copy Clerk, by Date:2/15/2018 3:38 PM Form Adopted for Mandatory Use < % (IR Essential Judicial Council of California CiV-110 |Rev. Jan. 1, 2013] cebcom LET Forms: R. Aragon Deputy REQUEST FOR DISMISSAL “Page 10f2 Codo of Civil Procedure, § 581 el seq; Gov. Cove, § 68637(c); Cal. Rules of Court, rule 3.1390 WWW. Courts.ca.gov Civ-110 PLAINTIFF/PETITIONER: Legacy Golden State, LLC CASE NUMBER: ; ; y 16cv303987 DEFENDANT/RESPONDENT: Coco's Restaurants, Inc.; Mizu Sushi Bar & Grill, Inc. COURT'S RECOVERY OF WAIVED COURT FEES AND COSTS If a party whose court fees and costs were initially waived has recovered or will recover $10,000 or more in value by way of settlement, compromise, arbitration award, mediation settlement, or other means, the court has a statutory lien on that recovery. The court may refuse to dismiss the case until the lien is satisfied. (Gov. Code, § 68637.) Declaration Concerning Waived Court Fees 1. The court waived fees and costs in this action for (name). 2. The person in item 1 is (check one below): a. [1 not recovering anything of value by this action. b. [J recovering less than $10,000 in value by this action. c. IA recovering $10,000 or more in value by this action. (If item 2c is checked, item 3 must be completed.) 3. | All court fees and costs that were waived in this action have been paid to the court (check one): 3 ves | No | declare under penalty of perjury under the laws of the State of California that the information above is true and correct. Date: b (TvPE OR PRINT NAME OF LJ) ArTorney [LJ] PARTY MAKING DECLARATION) (SIGNATURE) Civ-110 [Rev. January 1, 2013) Page 2 of 2 (LR Essential REQUEST FOR DISMISSAL whom ,% Forms: A N G L I N F L E W E L L I N G R A S M U S S E N C A M P B E L L & T R Y T T E N LL P O e 93 4 E-FILED 2/15/2018 3:38 PM Clerk of Court i does Bo . Superior Court of CA PROOF OF SERVICE : County of Santa Clara STATE OF CALIFORNIA ) 16CV303987 ) ss. : : COUNTY OF LOS ANGELES j Reviewed By:R. Aragon I am employed in the County of Los Angeles, State of California. | am over the age of 18 years and not a party to the within action. My business address is 301 N. Lake Ave, Suite 1100 Pasadena, CA 91101-4158. On the date below, I served the foregoing document(s) described as: REQUEST FOR DISMISSAL on the interested parties in this action by placing a true and correct copy enclosed in a sealed envelope as follows: Attorneys for Defendant and Cross- Attorneys for Defendant and Cross- Complainant Coco's Restaurant, Inc. and Complainant Mizu Sushi Bar & Grill, Inc. Food Management Partners and Cross- Defendant Catalina Restaurant Group, Inc. Christian E. Piccone, Esq. Michael J. Cheng, Esq. Brendan F. Macaulay, Esq. BERLINER COHEN LLP Catherine F. Ngo, Esq. Ten Almaden Blvd., 11" Floor NOSSAMAN LLP San Jose, CA 95113-2233 50 California St., 34™ Fl. Tel: 408.286.5800 San Francisco, CA 94111 Fax: 408.998.5388 Tel: 415.398.2600 Fax: 415.398.2438 & BY MAIL: I am readily familiar with the firm's practice of collection and processing correspondence by mailing. Under that same practice it would be deposited with U.S, Postal Service on that same day with postage fully prepaid at Pasadena, California in the ordinary course of business. 1 am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [ declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 15, 2018, in Pasadena, California. a, 1 | Dionne Harvey NA KYund AL o_ (Type or Print Name) (Signature of Declarant) PROOF OF SERVICE EXHIBIT 2 A N G L I N F L E W E L L I N G R A S M U S S E N C A M P B E L L & T R Y T T E N LL P 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Robert A. Bailey (SBN 214688) ANGLIN FLEWELLING RASMUSSEN CAMPBELL & TRYTTEN, LLP 301 North Lake Avenue, Suite 1100 Pasadena, California 91101-4158 Telephone: (626) 535-1900 Facsimile: (626) 577-7764 Attorneys for Plaintiff LEGACY GOLDEN STATE, LLC (ENDORSED) JUL -3 2017 Court Clerk of the & of Santa Clard superior Court of CA DEPUTY A. Ramirez SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA LEGACY GOLDEN STATE, LLC, Plaintiff, Vv. COCO’S RESTAURANTS, INC., a California corporation; FOOD MANAGEMENT PARTNERS, a Texas corporation, MIZU SUSHI BAR & GRILL, INC., a California corporation, and DOES 1 through 15, Defendants. AND RELATED CROSS-ACTION Case No.: 16-CV-303987 [Assigned to Hon. William J. Elfving, Dept. 3] NOTICE OF MOTION AND MOTION FOR RIGHT TO ATTACH ORDER AND WRIT OF ATTACHMENT [Filed with Memorandum of Points and Authorities, etc., Declaration of Walter Scott and Robert A. Bailey in support of Motion] Date: August 8, 2017 Time: 9:00 a.m. Dept. 3 Action Filed: December 14, 2016 Trial Date: None Set TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Please take notice that on August 8, 2017 at 9:00 a.m. in Dept. 3 of the above entitled court located at191 N. First St., San Jose, California, 95113, Plaintiff, Legacy Golden State, LLC (“Legacy”) will and hereby does move for a right to attach order and prejudgment writs of - attachment against all corporate assets of defendants Coco’s Restaurants, Inc. and Catalina / e, 40770/000003/01784891-1 NOTICE OF MOTION FOR RIGHT TO ATTACH ORDER AND WRITS OF ATTACHMENT A N G L I N F L E W E L L I N G R A S M U S S E N C A M P B E L L & T R Y T T E N LL P (5 ) wh Restaurant Group, Inc. (“Defendants”) subject to attachment under CCP § 487.010 or ower | applicable law. By this motion, Legacy seeks an order allowing it to attach Defendants” assets in the amount of $635,050.97. Legacy is has no information or belief that its claims have been discharged in bankruptcy or are stayed by any bankruptcy proceedings. Grounds for the motion are that Legacy is likely to prevail on its claim for money arising out of a contract and that the amount to be secured is readily ascertainable. Legacy commits to posting the required undertaking prior to the issuance of writs of attachment. The motion will be based on this notice, the accompanying memorandum of points and authorities, the declarations of Robert A. Bailey and Walter Scott filed herewith, the pleadings and papers on file with the court and Legacy’s argument at the hearing, if any. Respectfully submitted. Dated: June 30, 2017 ANGLIN, FLEWELLING, RASMUSSEN, CAMPBELL & TRYTTEN LLP we Zbl Q. Lok” Robert A. Bailey Attorneys for Plaintiff LEGACY GOLDEN STATE, LLC 40770/000003/01784891-1 9 NOTICE OF MOTION FOR RIGHT TO ATTACH ORDER AND WRITS OF ATTACHMENT A N G L I N F L E W E L L I N G R A S M U S S E N C A M P B E L L & T R Y T T E N LL P to PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to the within action. My business address is 301 N. Lake Ave, Suite 1100 Pasadena, CA 91101-4158. On the date below, I served the foregoing document(s) described as: NOTICE OF MOTION AND MOTION FOR RIGHT TO ATTACH ORDER AND WRIT OF ATTACHMENT on the interested parties in this action by placing a true and correct copy enclosed in a sealed envelope as follows: Attorneys for Defendant and Cross- Attorneys for Defendant and Cross- Complainant Coco's Restaurant, Inc. and Complainant Mizu Sushi Bar & Grill, Inc. Food Management Partners Christian E. Piccone, Esq. Brendan F. Macaulay, Esq. Michael J. Cheng, Esq. Catherine F. Ngo, Esq. BERLINER COHEN LLP NOSSAMAN LLP Ten Almaden Blvd., 11" Floor 50 California St., 34M Fl, San Jose, CA 95113-2233 San Francisco, CA 94111 Tel: 408.286.5800 Tel: 415.398.2600 Fax: 408.998.5388 Fax: 415.398.2438 x BY MAIL: | am readily familiar with the firm’s practice of collection and processing correspondence by mailing. Under that same practice it would be deposited with U.S. Postal Service on that same day with postage fully prepaid at Pasadena, California in the ordinary course of business. | am aware that on motion of the party served. service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [ declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 30, 2017, in Pasadena, California. \ 74 ” Dionne Harvey MAIN Aan (Type or Print Name) (Signature of Declagant) 40770/000003/01784891-1 3 NOTICE OF MOTION FOR RIGHT TO ATTACH ORDER AND WRITS OF ATTACHMENT EXHIBIT 3 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name and Address): TELEPHONE NO.: FOR COURT USE ONLY Carl L. Blumenstein (SBN 124158) (415) 398-3600 Brendan F. Macaulay (SBN 162313 Nossaman LLP, 50 California Street, 34" Floor San Francisco, CA 94111 ATTORNEY FOR (Name): COCO’S RESTAURANT, INC, et al. name OF courT: Superior Court of the State of California,County of Santa Clara STREET ADDRESS: 191 N. First Street MAILING ADDRESS: ciry AND ZIP CODE: San Jose 95113-1090 BRANCH NAME: PLAINTIFF: DEFENDANT: COCQO'S RESTAURANTS, INC, et al. Legacy Golden State, LLC CASE NUMBER: NOTICE OF [XI OPPOSITION TO APPLICATION FOR RIGHT TO ATTACH ORDER [J] CLAIM OF EXEMPTION [Cl] MOTION (AFTER ISSUANCE OF WRIT) FOR CLAIM OF EXEMPTION [CJ] AND MOTION FOR CLAIM OF EXEMPTION 16-CV-3039887 1. To plaintiff (name): Legacy Golden State, LLC 2. You are notified that a hearing will be held in this court as follows: date: August 22, 2017 time: 9:00 a.m. IX dept.: 3 [1] div.: Om. 3. This opposition or claim of exemption is filed by a. XX b. [] defendant (specify name): Coco's Restaurant, Inc. and Catalina Restaurant Group nondefendant (specify name and mailing address where service of opposition may be made). (name and last known address of defendant). 4. Opposing party a. will oppose the issuance of a right to attach order upon the following grounds (specify grounds of opposition). As to Coco's and Catalina, Plaintiff failed to submit an application executed under oath as required by C.C.P. § 484.020. Further, Plaintiff has failed to show the probable validity of its claim because there are no damages after rent from re-letting the Property is considered. As to Coco's, Plaintiff has not shown there are assets subject to attachment. As to Catalina, there is no basis for a claim upon which an attachment may issue under C.C.P. § 484.020, subdivision (a), as Catalina was not a named party to the Lease. (See Defendants’ Opposition memorandum.) b. XJ objects to the amount sought to be secured by the attachment upon the following grounds (specify grounds of opposition): As to Coco's, under Civil Code § 1951.2, Plaintiff is unable to recover any lost rent, as the amount it could have reasonably avoided by re-letting the property exceeds Plaintiff's claimed damages. (Continued on reverse) Form Agprovec by the NOTICE OF OPPOSITION TO RIGHT TO ATTACH O RDER Judicial Council of California AND CLAIM OF EXEMPTION AT-155 [Rev July 1.1983) (Attachment) CCP 482.030 American LegalNet, inc www. Forms Workflow. com SHORT TITLE: CASE NUMBER: Legacy Golden State, LLC v. Coco's Restaurant, Inc., et al. 16CV303987 4.c. [J will claim exemption. BX will move the court for an exemption from attachment of the following property: 1) Od Property exempt from execution under CCP 703.010 et seq. (specify code section and describe property). (a) [J Property exempt under CCP 704.010 [motor vehicles] or 704.080 [tools of a trade] (describe all other property of the same type, including exempt proceeds of property of the same type, owned by defendant alone or in combination with others on the date of levy and identify the property to which the exemption is to be applied, regardless of whether it was levied upon): (0) [J] Property exempt under CCP 704.100 life insurance policies] (state the nature and amount of all other property of the same type owned by defendant or defendant's spouse alone or in combination with others on the date of levy): 2) Property which is necessary for the support of a defendant who is a natural person and the family of the defendant supported in whole or in part by the defendant (CCP 487.020(b) (describe the property and attach a financial statement executed under oath as required in CCP 703.530): (3) Compensation paid or payable to a defendant employee by an employer for personal services performed by the employee whether denominated as wages, salary, commission, bonus, or otherwise (CCP 487.020(c)) (describe compensation): (4) XX Property not subject to attachment pursuant to CCP 487.010 (describe property): Any deposit account owned by Catalina as provided by C.C.P. § 700.160. (6) [1 Other (describe property and specify grounds for exemption): 5. Defendant's affidavit supporting any factual issues and points and authorities supporting any legal issues is attached. 6. Total number of pages attached: See Opposition memorandum and Declaration of Mark Biagini filed concurently. Date: August 15, 2017 Carl L. Blumenstein a > {TYPE OR PRINT NAME) (SIGNATURE OF DEFENDANT OR ATTORNEY) By NOTICE OF OPPOSITION TO RIGHT TO ATTACH ORDER AT-155 [Rev July 1, 1683] AND CLAIM OF EXEMPTION (Attachment) Page two American LegalNet, Inc. www_FormsWorkflow com (NAME AND EXHIBIT 4 20 NOSSAMAN LLP BRENDAN F. MACAULAY (SBN 162313) bmacaulayfnossaman.com CATHERINE F, NGO (SBN 287874) CHEOIENOSSMAaN, com 50 California Street, 34th Floor San Francisco, CA 94111 Telephone: 415.398.3600 Facsimile: 415.398.2438 Attorneys for Defendants and Cross-Complainant COCO’S RESTAURANT, INC,, FOOD MANAGEMENT PARTNERS, and CATALINA RESTAURANT GROUP INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA LEGACY GOLDEN STATE, LLC, Case No: 16-CV-303987 Plaintiff, Assigned for all purposes to: James L. Stoelker VS. NOTICE OF DEPOSITION OF PERSON COCO’S RESTAURANTS, INC., a California | MOST KNOWLEDGABLE OF corporation; FOOD MANAGEMENT PLAINTIFF LEGACY GOLDEN STATE, PARTNERS, a Texas corporation; MIZU LI.C AND REQUESTS FOR SUSHI BAR & GRILL, INC, a California DOCUMENTS corporation, and DOES 1 through 15, Date: January 24, 2018 Defendants. Time: 10:00 a.m, © Location: Ten Almaden Boulevard Eleventh Floor San Jose, CA 95113-2233 Date Action Filed: December 14, 2016 AND RELATED CROSS-ACTIONS, EXHIBIT NOTICE OF DEPOSITION OF PLAINTIFF 56312661.v2 bo 9 10 ii 12 13 14 TO ALL PARTIES AND THEIR ATTORNEY OF RECORD: PLEASE TAKE NOTICE that pursuant to Code of Civil Procedure Section 2025.010, et seq., Defendants Coco’s Restaurants, Inc., Food Management Partners, and Catalina Restaurant Group Inc. (collectively “Defendants”™) will take the oral deposition of Plaintiff Legacy Golden State, LIC on January 24, 2018, beginning at 10:00 a.m. The deposition will be taken before any notary public or other officer authorized to administer oaths in the State of California who is present at the specified place as follows: PLACE: BERLINER COHEN, LLP Ten Almaden Boulevard Eleventh Floor San Jose, CA 95113-2233 PLEASE TAKE FURTHER NOTICE that pursuant to Code of Civil Procedure section 2025.220, Defendants intend to record the testimony by video technology, in addition to recording the testimony by the stenographic method through the instant visual display of the testimony, and that Defendants reserve the right pursuant to Code of Civil Procedure section 2025.220(a)(6), to use a video recording of the deposition testimony at the time of trial. Such deponent is not a natural person, and is hereby requested, and is required, to designate and produce at the deposition those of its officers, directors, managing agents, employees, and/or agents who are most qualified to testify on its behalf, to the extent of a ny information known or reasonably available to such deponent, as set forth below: a. The property owned by Plaintiff and previously rented by Coco’s located at 1206 or 1209 Oakmead Parkway, Sunnyvale, California (“Property”). b. The Leasc of the Property between Coco's and Plaintiff, including any amendments and extensions thereof (including any claim that the Lease was ever extended beyond 2018); Any demolition or construction on the Property, including contracts, work orders, © plans, and building permits by Plaintiff or Defendants, including Defendant Mizu Sushi Bar & Grill, Inc.; - see b a- w= NOTICE OF DEPOSITION OF PLAINTIFF 56312661.v2 SN wn BA ~3 10 11 12 13 14 15 16 d. Plaintiff’s claimed damages in this action, including damage to the Property and lost rent (or damages based on rental value); e. Plaintiffs efforts (or lack thereof) to mitigate its claimed damages in this action, including but not limited to repairing the Property, renting the Property and/or selling the Property; f. The hiring of appraisers, listing agents, brokers, or consultants for the Property; g. Rent payments on the Property, including any rent paid by Defendants, and any loss rent Plaintiff claims relating to the Property; h. Plaintift’s claim for waste; i. Plaintiff’s claim for trespass; j. Plaintiffs claim for breach of contract; k. Plaintiff’s claim for negligence; I. The fair market rent for the Property, before and/or after the demolition of the interior by Mizu; m. The fair market value of the Property, before and/or after the demolition of the interior by Mizu; n. The value of any items (including furniture, fixtures and equipment) that was removed from the Property; 0. The basis of Plaintiffs claims against Food Management Partners, including claims of alter ego; and p. The basis of Plaintiff's claims against Catalina Restaurant Group, including claims of alter ego. PLEASE TAKE FURTHER NOTICE that to the extent the following documents have not been previously produced in this action, and to the extent any updated information is now available, the deponent is required to produce the following documents at said deposition for inspection and copying: / I . - . 2 o i . a. NOTICE OF DEPOSITION OF PLAINTIFF 56312661.v2 ro w n o o 3 D Y REQUESTS FOR PRODUCTION i All DOCUMENTS related to Plaintiff’s ownership of the PROPERTY. For purposes of this request and hereafter the terms: (a) “DOCUMENT” or “DOCUMENTS?” shall have the same meaning as the term “writing(s)” as that term is defined in Evidence Code section 250; (b) the term “Plaintiff” shall refer to Plaintiff Legacy Golden State, LLC, and its principals, directors, officers, shareholders, managers, members, agents, representatives, partners, affiliates, subsidiaries, assigns, predecessors, successors, servants, attorneys, agents and employees, and any person acting on its behalf; and (c) the term “PROPERTY?” shall refer to property located at 1206 or 1209 Oakmead Parkway, Sunnyvale, California. 2; All DOCUMENTS related to the Lease, including any exercise of option to extend the Lease by Coco’s. Bi All DOCUMENTS related to Plaintiff's claims for waste. 4, All DOCUMENTS related to Plaintiff’s claims for trespass. i All DOCUMENTS related to Plaintiff’s claims for breach of contract. 6. All DOCUMENTS related to Plaintiff’s claims for negligence. I All DOCUMENTS related to Plaintiff’s damages claimed in this case. 8. All DOCUMENTS related to any demolition or construction on the Property, including contracts, work orders, plans, and building permits by Plaintiff or Defendants, including Defendant Mizu Sushi Bar & Grill, Inc. 9. All DOCUMENTS related to Plaintiffs efforts (or lack thereof) to mitigate its claimed damages in this action, including but not limited to repairing the Property, renting the Property and/or selling the Property. 10. All DOCUMENTS provided to, or received from, any appraisers, listing agents, brokers, consultants for the Property. 11. All DOCUMENTS relating to Jeff Badstubner, including but not limited to emails, consulting agreements, retainer agreement, analyses and payments. “NOTICE OF DEPOSITION OF PLAINTIFF 56312661.v2 12. All DOCUMENTS relating to the value of any items (including furniture, fixtures and equipment) that was removed from the Property; 13. All supplemental DOCUMENTS responsive to Defendant Coco’s Restaurant Inc.’s Requests For Production of Documents to Plaintiff Legacy Golden State, LLC (Set One), dated September 12, 2017. Dated: January 9, 2018 NOSSAMAN LLP BRENDAN F. MACAULAY CATHE ‘RINE F.NGO / 4 fy wh xX “ 4 7. - i 7 = \ | Let] (A Lt Eve By: _) | . a | Brendan F. Macaulay ( x Attorneys for Defendants and Cross-Com plaiy ant COCO’S RI* 'STAURANT, INC., FOOD ~~ MANAGEMENT PARTNERS, and CATALINA RESTAURANT GROUP INC. oy "NOTICE OF DEPOSITION OF PLAINTIFF 56312661.v2 wv B w O N SS O e N Y J PROOF OF SERVICE The undersigned declares: I am employed in the County of San Francisco, State of California. [am over the age of 18 and am not a party to the within action; my business address is ¢/o Nossaman LLP, 50 California Street, 34th Floor, San Francisco, CA 94111. On January 9, 2018, I served the foregoing NOTICE OF DEPOSITION OF PERSON MOST KNOWLEDGABLE OF PLAINTIFF LEGACY GOLDEN STATE, LLC AND REQUESTS FOR DOCUMENTS on parties to the within action as follows: (By U.S. Mail) On the same date, at my said place of business, Copy enclosed in a sealed; envelope, addressed as shown on the attached service list was placed for collection and mailing following the usual business practice of my said employer. Iam readily familiar with my said employer's business practice for collection and processing of correspondence for mailing with the United States Postal Service, and, pursuant to that practice, the correspondence would be deposited with the United States Postal Service, with postage thereon fully prepaid, on the same date at San Francisco, California. (By Facsimile) I served a true and correct copy by facsimile pursuant to C.C.P. 1013(e), to the number(s) listed on the attached sheet. Said transmission was reported complete and without error. A transmission report was properly issued by the transmitting facsimile machine, which report states the time and date of sending and the telephone number of the sending facsimile machine. A copy of that transmission report is attached hereto. (By Overnight Service) I served a true and correct copy by overnight delivery service tor delivery on the next business day. Each copy was enclosed in an envelope or package designated by the express service carrier; deposited in a facility regularly maintained by the express service carrier or delivered to a courier or driver authorized to receive documents on its behalf: with delivery fees paid or provided for; addressed as shown on the accompanying service list. (By Electronic Service) By emailing true and correct copies to the persons at the electronic notification address(es) shown on the accompanying service list. The document(s) was/were served electronically and the transmission was reported as complete and without error, Executed on January 9, 2018. (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. (FEDERAL) I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, ¢ / | ys ‘ | cil LET Ll ena le a sn Anthony Levintow/ J / PROOF OF SERVICE 47969197 .v1 w o AY 10 11 SERVICE LIST Robert Arthur Bailey ANGLIN FLEWELING RASMUSSEN CAMPBELL & TRYTTEN, LLP 301 North Lake Avenue, Suite 1100 Pasadena, CA 91101-4158 Fax: 626-577-7764 rbailey@afrct.com Attorneys for Plaintiff Legacy Golden State, LLC 47969197 .v1 Christian E. Picone Michael J. Cheng BERLINER COHEN, LLP Ten Almaden Boulevard Eleventh Floor San Jose, CA 95113-2233 Tel: 408-286-5800 Fax: 408-998-5388 christian. picone@berliner.com michael.cheng@berliner.com Attorneys for Defendant Mizu Sushi Bar & Grill, Inc. 2 “PROOF OF SERVICE EXHIBIT 5 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA wwe ERGs LEGACY GOLDEN STATE, LLC, ) ) Plaintiff, Case No. 16-CV-303987 Si. ) ) ) ) COCO'S RESTAURANTS, INC., a) California corporation; ) FOOD MANAGEMENT PARTNERS, a) Texas corporation; MIzZU ) SUSHI BAR & GRILL, INC., a ) California corporation; and) DOES 1 through 154 ) ) Defendants. ) ) Deposition of WALTER SCOTT VOLUME 1 WEDNESDAY, FEBRUARY 21, 2018 Reported by: AMANDA L. JOHNSON, CSR 13922 The Souza Group (800) 230-3376 10 11 12 13 14 1.5 16 1.7 18 132 20 2.1 22 “3 24 25 Walter Scott - February 21, 2018 was removed from the property? A. Yes: Q. Category O, are you the person most knowledgeable regarding the basis of Plaintiff's claims against Food Management Partners? MR. BAILEY: There are no claims against Food | Management Partners, so --- MR. MACAULAY: Well, I did just receive a request for dismissal. Has it been entered? MR. BAILEY: I haven't received it back, but there is no reason it would not be. MR. MACAULAY: Okay. Well -- MR. BAILEY: So we are not --- there are no claims, so there is no one to respond to that. BY MR. MACAULAY: @is Okay. Well, if there are no claims, I am not going to ask about it. Category P, "The basis of Plaintiff's claims against Catalina Restaurant Group," are you the person most knowledgeable about that topic? A. Yes. Ok. What information do you have that Catalina Restaurant Group is one and the same as Coco's? MR. BAILEY: Calls for a legal conclusion. Best asked as a contention interrogatory. The Souza Group (800) 230-3376 1.38 A N G L I N F L E W E L L I N G R A S M U S S E N C A M P B E L L & T R Y T T E N LL P 10 ii 12 13 14 15 16 if 18 19 20 21 70 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA ) 88. COUNTY OF LOS ANGELES ) I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to the within action. My business address is 301 N. Lake Ave, Suite 1100 Pasadena, CA 91101-4158. On the date below, I served the foregoing document(s) described as: PLAINTIFF’S NOTICE OF MOTION AND MOTION TO STRIKE OR TAX COSTS RE: DEFENDANT’S MEMORANDUM OF COSTS FILED FEBRUARY 14, 2018; MEMORANDUM OF POINTS AND AUTHORITIES on the interested parties in this action by placing a true and correct copy enclosed in a sealed envelope as follows: Attorneys for Defendant Coco’s Restaurants, Attorneys for Defendant Mizu Sushi Bar & Inc.: Grill, Inc.: Michael L. Smith, Esq. Michael J. Cheng, Esq. MANNING & KASS, ELLROD, RAMIREZ, BERLINER COHEN, LLP TRESTER LLP Ten Almaden Blvd., 11" Floor 121 Spear St., Suite 200 San Jose, CA 95113 San Francisco, CA 94105 Tel.: (408) 286-5800 | Fax: (408) 998-5388 Tel.: (415) 217-6990 | Fax: (415) 217-6999 michael.cheng@berliner.com mls@manningllp.com BY MAIL: I am readily familiar with the firm’s practice of collection and processing correspondence by mailing. Under that same practice it would be deposited with U.S. Postal Service on that same day with postage fully prepaid at Pasadena, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 26, 2018 in Pasadena, California. of 9 Carol Goodwin L oud N J fe : (Type or Print Name) (Signature of Declarant) 40770/000003/02009636-1 1 PROOF OF SERVICE
