Mid-Wilshire Property, L.P. vs. Dr. Leevil, LLC

Reply Other

Cal. Super. - 4th Dist.July 28, 2015

© 0 9 O N wn Bb 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 TERI T. PHAM (SBN 193383) Email: tpham @ enensteinlaw.com Email: tcheng @enensteinlaw.com Superior Court of California, ENENSTEIN RIBAKOFF LAVINA & PHAM County of Orange 650 Town Center Dr., Suite 840 05/08/2047 at 05:15:00 Pil Costa Mesa, CA 92627 Clerk of the Superior Court Phone: (714) 292-0262 By fngelina Mguyen-Do, Deputy Clark Fax: (714) 464-4770 Attorneys for Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER MID-WILSHIRE PROPERTY, L.P., a Case No. 30-2015-00801555-CU-OR-CJC California Limited Partnership; MID- WILSHIRE HEALTH CARE CENTER, a | pp A INTIFFS MID-WILSHIRE Califomia Corporation, PROPERTY, L.P. AND MID-WILSHIRE Plaintiff, HEALTH CARE CENTER’S REPLY TO OPPOSITION TO MOTION TO COMPEL v. DEFENDANT DR. LEEVIL, LLC TO PROVIDE FURTHER RESPONSES TO PLAINTIFFS’ SPECIAL DR. LEEVIL, LLC, a California Limited Liability Company: LIDO HOLDING INTEEEOS TORIES; SEL LINE INT) COMPANY, LLC, a Nevada Limited TWO AND REQUESTS FOR SANCTIONS Liability Company; and DOES 1 through 50, | IN THE AMOUNT OF $9,000.00 AGAINST inclusive LEEVIL AND ITS COUNSEL OF RECORD Defendants. Date: May 15, 2017 Time: 9:00 a.m. Dept.: CX-103 Reservation No.: No Reservation Required Complaint filed: July 28, 2015 REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES FROM LEEVIL-SPECIAL INTERROGATORIES © © uN a wn A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IL. INTRODUCTION Contrary to its arguments, Defendant Dr. Leevil, LLC (“Leevil”) is still unable to provide any legal or factual support for its refusal to provide responses to interrogatories relating to issues that are relevant and material to this action. As argued in the Motion and reiterated below, Plaintiffs Mid-Wilshire Property, L.P. (“Mid-Wilshire LP”) and Mid-Wilshire Health Care Center (“Mid-Wilshire Corp.”)(collectively, “Plaintiffs”) are justified in seeking information 1) relating to Leevil’s business history/purpose, its business affiliations, and its members/officers/directors and 2) relating to Westlake Property, Westlake Loan, and the related foreclosure. Leevil’s continual and unjustified refusal to provide such information created the need for Plaintiffs to file the Motion and to incur substantial fees and costs to enforce their discovery rights. The Court should not allow Leevil to dictate the scope of discovery in this matter and grant the Motion in its entirety. A. PLAINTIFFS ARE ENTITLED TO DISCOVERY RELATED TO THE WESTLAKE LOAN AND RELATED FORECLOSURE. To justify its failure to satisfy its discovery duties, Leevil now contends that discovery relating to the Westlake Loan and the related foreclosure has nothing to do with this current action. Such a contention lacks merit as Plaintiffs are entitled to “discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” C.C.P. § 2017.010. Furthermore, “[d]iscovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” Id. In this case, the loans and foreclosure relating to Westlake and Tustin properties are inexorably intertwined. First, it is undisputed that the Westlake property served as an additional collateral for the Mid-Wilshire Loan via the Second Westlake DOT. It is also undisputed that Leevil contended that it was hold of the both Westlake Note and the Mid-Wilshire Note as well as the beneficiaries for the First Westlake DOT and Mid-Wilshire DOT at the relevant times as it relates to the foreclosure of the two properties. As noted in the FAC and in Leevil’s Verified 1 REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES FROM LEEVIL-SPECIAL INTERROGATORIES © © uN a wn A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Answer, there is significant and material dispute as to 1) amounts owed under the Westlake and Mid-Wilshire Notes, 2) whether the two notes were satisfied as a result of the Westlake Sale, 3) whether Leevil had any authority to proceed with the Tustin Sale, and 4) the properness of calculation of the amounts owed under the two notes. See First Amended Complaint, {] 8-32 and Leevil’s Verified Answer. Thus, discovery relating to such issues were well within the scope of discovery for this action. Additionally, since the beginning of the this action, one of Plaintiffs’ key contentions is that Leevil improperly calculated the amounts owed under both the Westlake and Mid-Wilshire Notes and that Leevil wrongfully foreclosed on the Tustin Property despite having full knowledge of Plaintiffs’ objections and the Ventura Court’s ruling that there was a triable issue of material fact as to the amount collectively owed under both the Westlake and Mid-Wilshire Notes. Such a contention was prominently set forth in both Plaintiffs’ November 2016 Motion for Summary Judgment/Adjudication as well as Plaintiffs’ January 2017 Oppositions to Leevil’s Motion for Summary Judgment/Adjudication. See Docket. Nowhere in its papers in connection with the competing summary judgment/adjudication motions did Leevil ever contend that the Westlake Property, the Westlake Loan, and the foreclosure of the Westlake Property were irrelevant. Id. Furthermore, in its February 12, 2017 order denying Leevil’s Motion for Summary Judgment/Adjudication, the Court expressly stated that: Plaintiffs provided sufficient evidence to dispute the amount, if any, was still owed to Dr. Leevil after distribution of the surplus proceeds from the Westlake property sale was made to D-Day Capital, LLC. Thus, Leevil’s sudden and unsupported objections to the relevancy of the Westlake Property, Westlake Loan, and the related foreclosure ring hollow and cannot serve as a proper basis to deny Plaintiffs’ right to discovery on such subjects. B. LEEVIL FAILS TO JUSTIFY ITS PRIVACY OBJECTIONS AS TO SPECIAL INTERROGATORIES NOS 1, 2, AND 4 TO 7. Leevil next contends that it should not have to provide responses to interrogatories relating itself, more specifically as to corporate history, its members, its mission/purpose, and general 2 REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES FROM LEEVIL-SPECIAL INTERROGATORIES © © uN a wn A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 business practices. In defense of its refusal to provide responses, Leevil contends that With respect to Special Interrogatory Nos. 1, 2, 4 and 5, Leevil fails to identify any law to support its assertion of privacy rights as a corporate entity. As noted in the Motion, corporate entities such as Leevil do not have a right to privacy. Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770, 791; Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 878. On the contrary, discovery relating to a company’s members and officers are relevant and not generally protected by the right to privacy. See, e.g., SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 755. Interestingly enough, Leevil itself concedes in the Opposition that it withheld information responsive the interrogatories at issue but that its refusal to provide such information was unnecessary because it was found in its response to Plaintiffs’ form interrogatories and/or Plaintiffs already informally knew the information. Opposition, 6:2-7. Such a refusal to provide responsive information already violates the spirit and language of the Discovery Act. As to the rights of potential third parties, Leevil contends that the requested discovery violates the rights of its members. Such a contention, however, is unsupported by law. First, Leevil’s citation of Valley Bank of Nevada v. Superior Court (1975) 15 Cal. 3d 652 is unavailing as the case involved the rights of a bank’s customers and a “‘reasonable expectation of privacy’ which a bank customer entertains with respect to financial information disclosed to his bank...” Id at 656.! No such rights or considerations are at issue in this case. Furthermore, the interrogatories at issue are narrowly tailored and only seeks the identities of Leevil’s members, officers, and directors as well as any businesses/entities it owns or with which it is affiliated between January 1, 2013 and the present. There are no detailed records or sensitive financial information being sought by the interrogatories at issue. Conversely, discovery of the identities of Leevil’s members, officers, and directors as well as affiliated business/entities could be important for Plaintiffs to identify potential witnesses and information regarding Leevil’s 1 Leevil also cites to Valdez v. Travelers Indem. Co. 2013 U.S. Dist. Lexis 109154, *17 (N.D. Cal. 2013). Such a case has little or no relevance to this motion as 1) it is a federal district court decision that was determining a discovery dispute under federal rules of civil procedure, 2) the discovery sought in Valdez was substantially more intrusive in trying to obtain tax records and personal financial records, neither one which is sought in this matter. 3 REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES FROM LEEVIL-SPECIAL INTERROGATORIES © © uN a wn A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 decision to proceed with a clearly improper/wrongful foreclosure and any connections between Leevil and other parties that may have benefited from such conduct, including D-Day. Thus, the Court should grant the Motion and compel Defendants to provide further responses to Special Interrogatories Nos. 1, 2, and 4 through 7. C. SANCTIONS ARE APPOPRIATE AGAINST LEEVIL AND ITS COUNSELS OF RECORD. Finally, Leevil contends that no sanctions should be awarded because 1) it was justified in refusing to provide responses to the interrogatories at issues and 2) it acted in good faith during the meet and confer process. Such contentions are without legal or factual basis. First, Leevil’s contention that it acted with substantial justification in refusing to provide discovery responses is without legal or factual basis. As noted above, none of the objections asserted by Leevil have legal merit and Leevil’s refusal to provide any discovery responses relating to Westlake Loans/Property based upon a claim of lack of relevancy is contrary to the allegations of the First Amended Complaints and disputed issues found within the parties’ summary judgment/adjudication motions. In short, Leevil’s refusal to provide discovery responses is based solely upon its unilateral and unjustified determination of what is at issue in this litigation. With respect to the meet and confer process, Plaintiffs made every effort to resolve the disputed issues informally. As conceded by Leevil, Plaintiffs was forced to meet and confer with Leevil more than 60 of Leevil’s initial responses, approximately half of those resulted in the need for amended responses to be provided. With respect to the interrogatories that are at issue in the Motion, Leevil has always refused to materially amend its responses but instead elected to stick with its unfounded objections of invasion of privacy and relevance. It was this refusal to amend that necessitated this Motion and resulted in the incursion of costs and fees by Plaintiffs.’ Finally, Plaintiffs” Motion was also necessitated by Leevil’s repeated delays in provide meet and confer responses and amended responses. As noted in the Motion, Leevil provided its initial responses on February 17, 2017 but did not provide responsive documents until March 3, 2 In addition to the refusal to provide discovery responses relating to the Westlake Property, Westlake Loan, and the related foreclosure, Leevil’s designated person most knowledge, Ronald Richards, has now refused to answer deposition questions on such subjects and forcing Plaintiffs to file another discovery motion to compel responses. 4 REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES FROM LEEVIL-SPECIAL INTERROGATORIES © © uN a wn A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 2017. Leevil also served amended responses to the Special Interrogatories on March 7, 2017. Plaintiffs promptly sent on a meet and confer letter to Leevil on March 24, 2017 as to significant defects within Leevil’s discovery requests. Leevil failed to provide a response to that letter for almost two week. Leevil then promised to provide amended responses and responsive documents shortly thereafter but no amended responses or responsive documents were served prior to the filing of the Motion. In fact, amended responses were not served until May 4, 2017, three (3) days after Leevil had filed and served its Opposition to the Motion.> (Declaration of Tony J. Cheng in Support of Reply, | 3; Exhs. A and B.) Thus, Leevil’s unmeritorious objections, continuous delay in producing amended responses, and unjustified opposition to the Motion all support an issuance of sanctions against Leevil and its counsel. II. CONCLUSION For the above stated reasons, Plaintiffs request that the Court grant their Motion to Compel Further Responses from Leevil as to Plaintiffs’ First and Second Sets of Special Interrogatories and grant their request for sanctions in the amount of $9,000.00. DATED: May 8,2017 ENENSTEIN RIBAKOFF LAVINA & PHAM =P By: Emre Se TERI T. PHAM TONY J. CHENG Attorneys for Plaintiffs 3 Leevil provided amended responses to Special Interrogatory Nos. 18, 20, 42-47, 80, 82, 98-102, 112, 114, 116-118, 120, 122, 124-130, 132, and 133. 5 REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES FROM LEEVIL-SPECIAL INTERROGATORIES ~N O N B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 650 Town Center Drive, Suite 840, Costa Mesa, CA 92626. On May 8, 2017 I served the foregoing documents described as: PLAINTIFFS MID-WILSHIRE PROPERTY, L.P. AND MID-WILSHIRE HEALTH CARE CENTER’S REPLY TO OPPOSITION TO MOTION TO COMPEL DEFENDANT DR. LEEVIL, LLC TO PROVIDE FURTHER RESPONSES TO PLAINTIFFS’ SPECIAL INTERROGATORIES, SETS ONE AND TWO AND REQUESTS FOR SANCTIONS IN THE AMOUNT OF $9,000.00 AGAINST LEEVIL AND ITS COUNSEL OF RECORD DECLARATION ISO PLAINTIFFS MID-WILSHIRE PROPERTY, L.P. AND MID- WILSHIRE HEALTH CARE CENTER’S REPLY TO OPPOSITION TO MOTION TO COMPEL DEFENDANT DR. LEEVIL, LLC TO PROVIDE FURTHER RESPONSES TO PLAINTIFFS’ SPECIAL INTERROGATORIES, SETS ONE AND TWO AND REQUESTS FOR SANCTIONS IN THE AMOUNT OF $9,000.00 AGAINST LEEVIL AND ITS COUNSEL OF RECORD on the interested parties in this action as stated below: Geoffrey Long Attorneys for LAW OFFICES OF GEOFFREY LONG, A.P.C. Dr. Leevil, LLC 1601 N. Sepulveda Blvd., No. 729 Manhattan Beach, CA 90266 Attorneys for Mark J. Mulkerin Lido Holding Company BURKE, WILLIAMS & SORENSEN, LLP 1851 East First Street, Suite 1550 Santa Ana, CA 92705-4067 Attorneys for Ronald N. Richards Dr. Leevil, LLC LAW OFFICES OF RONALD RICHARDS & ASSOCIATES PO Box 11480 Beverly Hills, CA 90213 [X] BY ELECTRONIC SERVICE [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March 8, 2017 in Orange County, California. ) So Selomte Jennifer Schamberger 1 PROOF OF SERVICE