Case Number: GC049079    Hearing Date: August 01, 2014    Dept: NCE

Motion to compel further responses from defendant/cross-complainant The Square Group, LLC to Document Requests is off calendar as stayed in light of its bankruptcy filing.

Motion of plaintiff and cross-defendant Pak to compel further responses from defendants and cross-complainants Mack Lee and The Square Group, LLC to Special Interrogatories is off calendar as to The Square Group, LLC due to its bankruptcy filing. The motion is granted as to defendant and cross-complainant Mack Lee. Lee is ordered to provide further responses, consistent with his obligations under the Code of Civil Procedure, within 10 days.

The objections stated are overruled. The court overrules the relevancy objection, finding the interrogatories seek information that may lead to the discovery of admissible evidence. The court notes and overrules the argument that a deposition and document demands should be utilized instead. Depositions, interrogatories and document demands all serve different purposes (see Coy v. Superior Court (1962) 58 Cal.2d 210, 217-219), and each party may choose how he or she desires to proceed with discovery. The court also notes and overrules the overbreadth, burdensome and oppressive objections for failure to set forth specific facts which establish those objections. (See West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417-418.) Last, the court notes no argument is made justifying the attorney-client privilege objection which is asserted, no privilege appears as a matter of law and the objection is therefore overruled. See Coy v. Superior Court, supra, 58 Cal.2d at p. 220-221 (holding, the burden is on the responding party to justify any objection or failure to fully respond to discovery.)

Monetary sanctions are denied for failure to submit a declaration supporting the amount sought. CCP section 2023.040.

Motion to compel further responses from defendants/cross-complainants Category 82, Inc., Ixzibit, Inc. and Square 44 Corp. to plaintiff Pak’s Special Interrogatories is granted. Further written responses shall be served which provide all information requested, within 10 days. Objections are overruled for the same reasons set forth above. Monetary sanctions are denied. The Notice of Motion seeks sanctions against defendant Lee, but Lee is not a party to this motion, and there is no declaration supporting the amount of sanctions sought. CCP section 2023.040.

Motion for summary judgment is denied. The court cannot determine whether each cause of action cannot be established against all defendants on various grounds given that the action is stayed as against defendant The Square Group, LLC.

Motion for summary adjudication is stayed or denied as follows:

Issue No. 1: Plaintiff’s First Cause of Action for Breach of Contract Against Defendants Ixzibit, Category 82, Square 44 and Lee Fails as a Matter of Law Because These Defendants Were Not Parties to the Agreement.

Motion is denied. Plaintiff has submitted evidence, which if credited by the trier of fact, supports a reasonable inference that one or more of the moving defendants treated The Square Group, LLC as an alter ego. There is evidence that defendant Lee intermingles his assets with those of each of the entities, as well as the assets of the entities with each other, that the entities do not have contracts with each other to address repayment of loans or the taking of funds, goods, and personnel from each other, and that Lee treats the assets of all of the entities as his own. [Additional Facts Nos. 96-122, and evidence cited.]

Issue No. 2: Plaintiff’s Second Cause of Action for Breach of Contract Against All Defendants Fails as a Matter of Law Because the Agreement Entered into Between Plaintiff and The Square Group as Alleged in the Complaint was Substituted by a Subsequent Agreement by Reason of Novation.

This issue is stayed by the bankruptcy filing of The Square Group because the motion seeks adjudication as to all defendants.

Issue No. 3: Plaintiff’s Second Cause of Action for Fraud Against Defendants Ixzibit, Category 82, Square 44 and Lee Fails as a Matte of Law Because the Alleged Misrepresentations Upon Which These Allegations Are Based Were Not Made on Behalf Of, Nor Otherwise Attributed To, These Defendants.

Motion is denied. Plaintiff has submitted evidence, which if credited by the trier of fact, supports a reasonable inference that one or more of the moving defendants treated The Square Group, LLC as an alter ego. There is evidence that defendant Lee intermingles his assets with those of each of the entities, as well as the assets of the entities with each other. that the entities do not have contracts with each other to address repayment of loans or the taking of funds, goods, and personnel from each other, and that Lee treats the assets of all of the entities as his own. [Additional Facts Nos. 96-122, and evidence cited.]

Issue No. 4: Plaintiff’s Second Cause of Action for Fraud Against All Defendants Fails as a Matter of Law Because Plaintiff Does Not Have Sufficient Facts to Establish Tortious Conduct Independent of an Alleged Breach of Contract by The Square Group.

This issue is stayed by the bankruptcy filing of The Square Group because the motion seeks adjudication as to all defendants.

Issue No. 5: Plaintiff’s Third Cause of Action for Negligent Misrepresentation Against Defendants Ixzibit, Category 82, Square 44 and Lee Fails as a Matter of Law Because the Alleged Misrepresentations upon Which These Allegations Are Based Were Not Made on Behalf Of, Nor Otherwise Attributed To, These Defendants.

Motion is denied. Plaintiff has submitted evidence, which if credited by the trier of fact, supports a reasonable inference that one or more of the moving defendants treated The Square Group, LLC as an alter ego. There is evidence that defendant Lee intermingles his assets with those of each of the entities, as well as the assets of the entities with each other. that the entities do not have contracts with each other to address repayment of loans or the taking of funds, goods, and personnel from each other, and that Lee treats the assets of all of the entities as his own. [Additional Facts Nos. 96-122, and evidence cited.]

Issue No. 6: Plaintiff’s Third Cause of Action for Negligent Misrepresentation Against All Defendants Fails as a Matter of Law Because Plaintiff Does Not Have Sufficient Facts to Establish Tortious Conduct Independent of an Alleged Breach of Contract by the Square Group.

This issue is stayed by the bankruptcy filing of The Square Group because the motion seeks adjudication as to all defendants.

Issue No. 7: Plaintiff’s Fourth Cause of Action for Declaratory Relief Against Defendants Ixzibit, Category 82, Square 44 and Lee Fails as a Matter of Law Because These Defendants Were Not Parties to the Agreement, and Therefore Plaintiff Has No Right to Seek Declaratory Judgment on That Contract.

Motion is denied. Plaintiff has submitted evidence, which if credited by the trier of fact, supports a reasonable inference that one or more of the moving defendants treated The Square Group, LLC as an alter ego. There is evidence that defendant Lee intermingles his assets with those of each of the entities, as well as the assets of the entities with each other, that the entities do not have contracts with each other to address repayment of loans or the taking of funds, goods, and personnel from each other, and that Lee treats the assets of all of the entities as his own. [Additional Facts Nos. 96-122, and evidence cited.]

Issue No. 8: Plaintiff’s fourth cause of action for declaratory relief against all defendants fails as a matter of law because it is not an appropriate remedy in cases where, as here, plaintiff’s claim for declaratory relief seeks a determination of identical issues as his claim or breach of contract.

This issue is stayed by the bankruptcy filing of The Square Group because the motion seeks adjudication as to all defendants.

Issue No. 9: Plaintiff’s Fifth Cause of Action for Accounting Against Defendants Ixzibit, Category 82, Square 44 and Lee Fails as a Matter of Law Because These Defendants Were Not Parties to the Agreement.

Motion is denied. Plaintiff has submitted evidence, which if credited by the trier of fact, supports a reasonable inference that one or more of the moving defendants treated The Square Group, LLC as an alter ego. There is evidence that defendant Lee intermingles his assets with those of each of the entities, as well as the assets of the entities with each other, that the entities do not have contracts with each other to address repayment of loans or the taking of funds, goods, and personnel from each other, and that Lee treats the assets of all of the entities as his own. [Additional Facts Nos. 96-122, and evidence cited.]

Issue No. 10: Plaintiff’s Fifth Cause of Action for an Accounting Against All Defendants Fails as a Matter of Law Because the Agreement Entered into Between Plaintiff and The Square Group as Alleged in the Complaint Was Substituted by a Subsequent Agreement by Reason of Novation.

This issue is stayed by the bankruptcy filing of The Square Group because the motion seeks adjudication as to all defendants.