Case Number: BC469496 Hearing Date: May 02, 2014 Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
________________________________________
Hearing Date: Friday, May 2, 2014
Calendar No: 6
Case Name: Bank of America, N.A. v. Torkan, et al.
Case No.: BC469496
Motion: (1)-(3) Demurrers and Motions to Strike
(4) Motion to Quash or Modify Deposition Subpoena
(5) Motion to Set Aside Right to Attach Orders and Writs of Attachment
Moving Party: (1) Cross-Defendants Pauline Timario and Arya Saleh (joinder by Azriel, LLC)
(2) Cross-Defendants Bruce Torkan and Nereus Holdings, LP
(3) Azriel, LLC
(4)-(5) Defendants Ronnie Yona; Caroline Yona; Caroline Yona Inc.; and First Merchant Services, Inc
Responding Party: (1)-(3) Cross-Complainant Ronnie Yona, individually and as trustee of the Yona Trust
(4)-(5) Real Party in Interest Azriel, LLC
Notice: OK

Tentative Ruling: (1) Demurrer is sustained based on uncertainty as to whether Ronnie Yona is bringing claims on behalf of Avenue J8, and is otherwise overruled. 10 days leave to amend is granted. Motion to strike is denied.

(2) Demurrer is overruled. Motion to strike is denied.

(3) Demurrer and motion to strike (and joinder) are moot. Alternatively, the demurrer and motion to strike are ruled on in the same manner as in (1) above.

(4) Motion to set aside right to attach orders and writs of attachment is granted. No attorney fees are awarded.

(5) Motion to quash second deposition subpoena is moot. No sanctions are awarded.
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I. Background
On 9/13/11, Plaintiff Bank of America, N.A. filed this action for breach of guaranty and money lent arising out of an allegedly defaulted loan made to Avenue J8, LLC that was guaranteed by various defendants.

On 10/17/12, in response but prior to the hearing on a demurrer and motion to strike, Cross-Complainants Avenue J8 and Ronnie Yona filed a First Amended Cross-Complaint against Cross-Defendants Bruce Torkan; Nereus Holdings LP; Azriel, LLC; Pauline Timario aka Pauline Timario Saleh; and Arya Saleh for (1) usurpation of corporate opportunity, (2) breach of fiduciary duty, (3) violation of Corp. Code § 390(a), (4) civil conspiracy, (5) concealment, and (6) spoliation of evidence.

After the Court ruled on demurrers to the FACC , Cross-Complainants filed a Second Amended Cross-Complaint on 2/20/13 which asserted causes of action for (1) usurpation of corporate opportunity, (2) breach of fiduciary duty, (3) violation of Corp. Code § 390(a), (4) civil conspiracy, and (5) concealment.

After the Court ruled on a demurrer to the SACC , Cross-Complainants filed a Third Amended Cross-Complaint on 10/28/13 which asserts causes of action for (1) breach of fiduciary duty, (2) aiding and abetting, (3) civil conspiracy, and (4) fraudulent concealment.

On 4/10/13, Avenue J8, LLC filed a notice of removal due to its bankruptcy filing. This action was remanded on 7/2/13. On 11/13/13, a substitution of attorney form was filed in which Avenue J8’s counsel withdrew from representation and Avenue J8 is now self-represented. Trial is set for 8/4/14; FSC for 7/24/14; and mediation completion for 6/24/14.

II. Factual Allegations of the TACC
Nereus, the Yona Family Trust, and Regency Properties, LLC are equal members of Avenue J8. ¶ 5. Torkan is the managing partner of Nereus (¶ 4); and Ronnie Yona is the trustee of the Yona Family Trust (¶ 2).

Avenue J8 entered into a loan with Bank of America for $2.8 million which was secured by a deed of trust on a medical building owned by Avenue J8. ¶¶ 17-18. Torkan and Nereus actively managed and controlled the business and operations of Avenue J8. ¶ 15. Torkan; Ronnie Yona, individually and as trustee of the Yona Family Trust; Caroline Yona; Caroline Yona, Inc.; and First Merchants Services, Inc. guaranteed the loan. ¶ 19. After Bank of America sued the guarantors for Avenue J8’s default on the loan on 9/13/11 (¶ 20), Avenue J8 entered into negotiations to settle the loan with the Bank for $1.5 million (¶ 21) and agreed to locate a third-party to purchase the note who would agree to re-amortize the note using the discounted amount as the new principal balance (¶ 22).

In October 2011, Torkan, Nereus, Saleh, and Timario entered into an agreement whereby Saleh and Timario agreed to negotiate for the acquisition of the note: Torkan and Nereus provided Saleh and Timario with Avenue J8’s confidential information and did not disclose this arrangement to Avenue J8. ¶ 23. In negotiations with Saleh and Timario, Bank of America indicated a willingness to sell the note for $1.6 million. ¶ 24. Torkan, Nereus, Saleh, and Timario formed Azriel to overbid the then-pending negotiations and Azriel purchased the loan for $1.8 million. ¶ 26. Torkan, Nereus, Saleh, and Timario (through Azriel) have proceeded to enforce the note at full value against all guarantors except for Torkan (¶ 29) and to foreclose on Avenue J8’s property (¶ 28).

The TACC asserts causes of action for (1) breach of fiduciary duty, (2) aiding and abetting, (3) civil conspiracy, and (4) fraudulent concealment. The 1st COA is asserted against Torkan and Nereus; the 2nd COA is asserted against Saleh and Timario; and the 3rd and 4th COAs are asserted against Torkan, Nereus, Saleh, and Timario.

III. Timario and Saleh (joinder by Azriel)

A. JOINDER
Azriel joins in the demurrer and the motion to strike filed by Timario and Saleh. See Joinder filed 2/27/14. Ronnie Yona appears to assert that Azriel is a party to the TACC. See Opp’n [Dem. by Timario and Saleh] p. 3:3-4; see also TACC ¶ 12 (alleging that Azriel is the alter-ego of Torkan, Nereus, Saleh, and Timario).

However, Azriel is not alleged to be a cross-defendant to the TACC (see TACC ¶ 6) and none of the COAs in the TACC are asserted against Azriel. Therefore, the Court is inclined to find that Azriel’s joinder is moot because Azriel is not a party to the TACC. However, if Yona intended otherwise, the Court would accept Azriel’s joinder in light of the uncertainty of the TACC.

B. DEMURRER
Timario and Saleh demur to the TACC.

1. Request for Judicial Notice
Timario and Saleh request judicial notice of the pleadings in this action (Exs. 1, 4-5, 7); the Court’s previous rulings as to the pleadings in this action (Exs. 6, 10); certain filings in this action (Exs. 2-3, 11); the docket and remand order in Avenue J8’s bankruptcy case and the docket of Menashi Cohen’s bankruptcy case (Exs. 8-9, 12); and portions of the depositions of Ronnie Yona and Menashi Cohen (Exs. 13-14).

Judicial notice is granted as to the pleadings and the Court’s previous rulings thereto in this action; as to other filings in this action, judicial notice is granted only as to the fact of their filing. Judicial notice is granted as to the docket and orders in the bankruptcy cases of Avenue J8 and Menashi Cohen. Judicial notice is denied as to the depositions of Ronnie Yona and Menashi Cohen, as they are offered to dispute the factual allegations of the TACC.

2. Standing
Timario and Saleh argue that Ronnie Yona has failed to allege facts to establish standing because Avenue J8’s bankruptcy filing raises the issue as to whether Ronnie Yona has authority to proceed on the derivative claims of Avenue J8. See Thornton v. Bernard Technologies, Inc. (Del. Chanc. 2009) 2009 WL 426179 *4. However, the Court notes that Avenue J8’s bankruptcy case has been dismissed. Opp’n [Dem. by Timario and Saleh] Ex. A.

Nevertheless, the Court notes that the TACC is uncertain as to the basis of Ronnie Yona’s claims. Notably, the TACC is brought only by Ronnie Yona (individually as guarantor of the loan and as trustee of the Yona Family Trust as a member of Avenue J8) and is based on the usurpation and misappropriation of a business opportunity that belonged to Avenue J8 and its members and guarantors. See TACC ¶ 33. While Ronnie Yona is not asserting a shareholder’s individual action against Avenue J8, it is uncertain whether Ronnie Yona is also asserting a shareholder’s derivative action on behalf of Avenue J8. See Jara v. Suprema Meats, Inc. (2004) 121 Cal.App.4th 1238, 1253-59.

Although Ronnie Yona asserts that Avenue J8 remains a cross-complainant (Opp’n [Dem. by Timario and Saleh] p. 5:17-18), the Court notes that the allegations of the TACC do not reveal this to be the case. Therefore, the demurrer is sustained as to the TACC based on uncertainty as to Ronnie Yona’s standing.

3. Avenue J8 and Regency Properties
Timario and Saleh argue that Avenue J8 and Regency Properties are necessary and indispensable parties who have not been joined (see CCP § 389) which results in a defect of parties (see CCP § 430.10(d)). An indispensable party is one whose rights must necessarily be affected by the judgment in the action. Washington Mut. Bank v. Blechman (2007) 157 Cal.App.4th 662, 667-69.

Based on the uncertainty as to whether Ronnie Yona is bringing claims on behalf of Avenue J8, it is uncertain whether Avenue J8 is an indispensable party. Additionally, Timario and Saleh fail to address the three distinct bases for an indispensable party. See TG Oceanside, L.P. v. City of Oceanside (2007) 156 Cal.App.4th 1355, 1365. Notably, the TACC only reveals that Regency Property’s interest is derivative of Avenue J8 as a member thereof. Timario and Saleh fail to cite to any authority that requires all members or shareholders be joined to an action by Avenue J8 or a shareholder’s derivation action on behalf of Avenue J8. Therefore, Timario and Saleh fail to establish that there has been a defect of parties based on the failure to join indispensable parties.

4. Breach of Fiduciary Duty
Timario and Saleh argue that Ronnie Yona cannot establish that Torkan owed a fiduciary duty to Ronnie Yona. This argument is also repeated as to the fraudulent concealment claim which requires a duty to disclose. See, e.g., LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.

The TACC alleges that Torkan’s fiduciary duty is based on Nereus (for which Torkan is the managing partner (TACC ¶ 4)) being a member of Avenue J8 and on Torkan being the de facto manager of Avenue J8 (TACC ¶¶ 14-16) as well as Torkan guarantying the loan (id. ¶ 19). At the pleading stage, this is sufficient to support the existence of a fiduciary duty. See, e.g., BT-I v. Equitable Life Assurance Society of the United States (1999) 75 Cal.App.4th 1406, 1410-12 (concerning partners).

Timario and Saleh argue that there was no breach by Torkan because he was permitted to act in his own interest. See, e.g., Corp. Code § 17704.09(e). However, this improperly attempts to dispute the factual allegations of the TACC which alleges that Torkan – along with Timario and Saleh – improperly purchased the loan at a discount during negotiations and sought to enforce it at full face value against all other guarantors except Torkan. TACC ¶¶ 26, 28-29. At the pleading stage, this supports Torkan taking advantage of other guarantors including Ronnie Yona. See Jones v. Wagner (2001) 90 Cal.App.4th 466, 473-74 (addressing the “equal opportunity” of a foreclosure sale).

To the extent Timario and Saleh argue that Torkan’s fiduciary duty ended when the guarantors were sued by Bank of America, no authority is cited to support this argument. Therefore, Timario and Saleh fail to establish that the TACC insufficiently alleges breach of fiduciary duty by Torkan.

5. Aiding & Abetting and Civil Conspiracy
Timario and Saleh argue that aiding and abetting and civil conspiracy are not causes of action. However, the Court has previously permitted the conspiracy theory (see Everest Investors 8 v. Whitehall Real Estate Limited Partnership XI (2002) 100 Cal.App.4th 1102, 1109) to be separated into a separate “cause of action” due to benefits in streamlining this action. See Berg & Berg Enter., LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823. This applies equally to the closely related theory of aiding and abetting (see Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 574) as asserting against Azriel, Timario, and Saleh (see Neilson v. Union Bank of Cal., N.A. (C.D. Cal. 2003) 290 F.Supp.2d 1101, 1118). Therefore, Timario and Saleh fail to establish that the aiding and abetting and civil conspiracy theories are improperly separated into separate “causes of action.”

6. Alter Ego
Timario and Saleh argue that the alter ego allegations are insufficient. This argument depends on whether Azriel is a party to the TACC, which the Court has discussed in relation to Azriel’s joinder. Because the Court is inclined to find that Azriel is not a party, the Court finds that the argument as to alter ego liability is moot.

However, assuming that Yona intended Azriel to be a party to the TACC, the Court concludes that the alter ego allegations are sufficient. The TACC alleges that Azriel is the alter ego of Torkan, Nereus, Timario, and Saleh; that Azriel was used as the instrumentality to carry out their scheme to acquire the loan; that Azriel was dominated and controlled by Torkan, Nereus, Timario, and Saleh; and that Azriel was inadequately capitalized for its stated business purpose. TACC ¶ 12. At the pleading stage, this is sufficient to allege facts to support alter ego liability. See Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1285; First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910, 914-15.

7. Ruling
The demurrer by Timario and Saleh is sustained only on the ground of uncertainty as to whether Ronnie Yona is bringing claims on behalf of Avenue J8, and is otherwise overruled. Leave to amend is granted.

C. MOTION TO STRIKE
Timario and Saleh move to strike the TACC on the grounds that Yona lacks standing, that Avenue J8 and Regency are indispensable parties, and that there are insufficient facts alleged to support punitive damages (Civil Code § 3294(a)). The Court’s ruling on the demurrer rejects the standing and indispensable party arguments, and the fraudulent concealment claim survives. Therefore, the motion to strike by Timario and Saleh is denied.

IV. Torkan and Nereus

A. DEMURRER
Torkan and Nereus demur to the TACC.

1. Corporate Opportunity
Torkan and Nereus argue that the TACC does not allege facts to support usurpation of a corporate opportunity. A corporate opportunity has been summarized as follows:
Under any test, a corporate opportunity exists when a proposed activity is reasonably incident to the corporation’s present or prospective business and is one in which the corporation has the capacity to engage. Whether or not a given opportunity meets the requisite relationship is largely a question of fact to be determined from the objective facts and surrounding circumstances existing at the time the opportunity arises. Whether or not an officer has misappropriated a corporate opportunity does not depend on any single factor.
Kelegian v. Mgrdichian (1995) 33 Cal.App.4th 982, 988-89 (citation omitted and original italics)

Torkan and Nereus argue that there is no allegation that Avenue J8 (or the guarantors) was able to purchase the note such that no corporate opportunity existed. See Rankin v. Frebank Co. (1975) 47 Cal.App.3d 75, 88. Torkan and Nereus note that Avenue J8’s operating agreement permits members to become creditors. See TACC Ex. A ¶¶ 4.2(iii), 8.5(ii).

However, whether “a corporate opportunity exists is primarily a factual question.” Kelegian, 33 Cal.App.4th at 989. Notably, whether a corporation has the financial resources to take advantage of a particular business opportunity is a factor that may be considered: it is not a required element. See id. at 990. While the TACC alleges that Avenue J8 defaulted on the loan (TACC ¶ 20), Avenue J8 is also alleged to have entered into negotiations with Bank of America to settle the loan at a discount (id. ¶ 21) and agreed to locate a third-party to purchase the note who would agree to re-amortize the note using the discounted amount as the new principal balance (id. ¶ 22). However, Torkan and Nereus are alleged to have used Avenue J8’s confidential information (id. ¶ 23) to form Azriel to overbid the then-pending negotiations (id. ¶ 26) and has proceeded to enforce the note at full value and foreclose (id. ¶¶ 28-29). At the pleading stage, this is sufficient to allege usurpation of a corporate opportunity.

2. Alter Ego
Torkan and Nereus argue that the alter ego allegations are insufficient. The Court incorporates its discussion on this issue in the demurrer by Timario and Saleh.

3. Fraudulent Concealment
Torkan and Nereus argue that the TACC fails to allege facts with particularity as to the fraudulent concealment claim. However, the Court notes that these specificity pleading requirements are intended to apply to affirmative misrepresentations. Alfaro v. Community Housing Improvement System & Planning Ass’n, Inc. (2009) 171 Cal.App.4th 1356, 1384. At the pleading stage, the TACC alleges sufficient facts to support nondisclosure or concealment by Torkan and Nereus (see TACC ¶ 23) based on either exclusive knowledge or active concealment. See LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.

4. Statute of Frauds
Torkan and Nereus argue that the agreement to re-amortize the note is not enforceable because it does not comply with the statute of frauds. However, the TACC does not seek enforcement of the agreement to re-amortize the note and instead asserts tort COAs which is permitted (see Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 29).

5. Damages
Torkan and Nereus argue that the TACC fails to allege damages citing to the out-of-pocket rule for fraud (see Civil Code § 3343). However, this is not properly the subject of a demurrer. See, e.g., Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 385. Additionally, while the TACC alleges that Avenue J8 was in a debt, it also alleges that Avenue J8 was going to settle it at a discount but Torkan and Nereus instead improperly acquired the debt and proceeded to enforce it a full value. See TACC ¶¶ 21-23, 26, 28-29. At the pleading stage, this is sufficient to allege damages.

6. Ruling
The demurrer by Torkan and Nereus is overruled.

B. MOTION TO STRIKE
Torkan and Nereus move to strike the TACC on the ground that there are insufficient facts alleged to support punitive damages (Civil Code § 3294(a)). Because the fraudulent concealment claim survives, the motion to strike is denied.

The Court’s ruling on the demurrer rejects the standing and indispensable party arguments, and Yona’s fraudulent concealment claim survives. Therefore, the motion to strike by Timario and Saleh is denied.

V. Renewed Motion to Set Aside Right to Attach Orders and Writs of Attachment

1. Procedural History
On 3/26/12, Azriel obtained rights to attach orders against all defendants to the Complaint in this action. On 12/14/12, Azriel obtained writs of attachment against Defendants Ronnie Yona; Caroline Yona; Caroline Yona Inc.; and First Merchant Services, Inc. (“Moving Defendants”). On 1/24/13, Moving Defendants filed a motion to set aside the right to attach orders and writs of attachment. On 2/15/13, Moving Defendants’ motion to set aside was denied without prejudice as being brought under an inapplicable code section and/or as an untimely motion for reconsideration. On 11/21/13, Moving Defendants filed this renewed motion. On 1/15/14, the parties stipulated that this Court may hear the renewed motion.

2. Requests for Judicial Notice
Moving Defendants request judicial notice of portions of the declaration of Torkan taken on 10/5/12 in Case No. BC483896. Azriel requests judicial notice of the filings and orders with respect to the right to attach orders and writs of attachment (Exs. 1-12, 26), the docket and remand order in bankruptcy cases of Avenue J8, Ronnie Yona, and Menashi Cohen (Exs. 13-17, 25), the trustee’s deed upon sale (Ex. 18), the filings related to the demurrer and motion to strike as to the TACC (Exs. 19-22), and portions of the depositions of Saleh and H. Sean Dayani (Exs. 23-24). The RJNs are granted.

3. Objections
Azriel objects to portions of the declaration of Ronnie Yona. Moving Defendants object to portions of Azriel’s opposition memorandum and to certain exhibits of Azriel’s RJN; and to the joinder by Torkan which included Torkan’s declaration. All objections are overruled.

4. CCP § 485.240
This renewed motion is governed by CCP § 485.240 which provides in pertinent part:
(a) Any defendant whose property has been attached pursuant to a writ issued under this chapter may apply for an order (1) that the right to attach order be set aside, the writ of attachment quashed, and any property levied upon pursuant to the writ be released, or (2) that the amount to be secured by the attachment be reduced as provided in Section 483.015. . . .

(b) The notice of motion shall state the grounds on which the motion is based and shall be accompanied by an affidavit supporting any factual issues raised and points and authorities supporting any legal issues raised. . . .

(c) At the hearing on the motion, the court shall determine whether the plaintiff is entitled to the right to attach order or whether the amount to be secured by the attachment should be reduced. If the court finds that the plaintiff is not entitled to the right to attach order, it shall order the right to attach order set aside, the writ of attachment quashed, and any property levied on pursuant to the writ released. . . .

(d) The court’s determinations shall be made upon the basis of the pleadings and other papers in the record; but, upon good cause shown, the court may receive and consider at the hearing additional evidence, oral or documentary, and additional points and authorities, or it may continue the hearing for the production of such additional evidence or points and authorities. . . .

5. Merits
“[A]lthough in a motion under section 485.240 the defendant is the moving party, the plaintiff nevertheless continues to have the burden of proving (1) that his claim is one upon which an attachment may be issued and (2) the probable validity of such claim.” Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1116.

Moving Defendants’ motion relies on previous facts and evidence raised or submitted in opposition to the Azriel’s applications for the right to attach orders and writs of attachment. Moving Defendants’ motion is supported by the declaration of Ronnie Yona, which substantiates the allegations of the TACC. See Ronnie Yona Decl. ¶¶ 5-11.

However, Moving Defendants submit that Azriel, although obtaining right to attach orders against Torkan, has only sought discovery against Moving Defendants even though Torkan is also a guarantor of the loan giving rise to the Complaint in this action. Ronnie Yona Decl. ¶ 13. The Court notes that writs of attachment were only obtained against Moving Defendants.

Moving Defendants also submit the deposition testimony of Saleh taken on 10/15/13. Lewin Decl. ¶ 12, Ex. R. In this deposition testimony, Saleh testified that when speaking to Torkan about acquiring the loan, Torkan said that he and his partners would make payments based on the discounted rate which was Saleh’s understanding of the terms under which he was acquiring the loan. Saleh Depo. p. 37:15-21, 50:22-51:15. Notably, there is evidence that Torkan is related to Saleh through Torkan’s marriage to Saleh’s sister Roya Saleh Torkan (also of note is that Timario is Saleh’s husband and is Azriel’s principal). See, e.g., Torkan Decl. ¶ 3. Saleh testified that he acquired the loan by borrowing funds from Roya, which was discussed in front of Torkan. Saleh Depo. p. 37:9-24, 139:6-9.

Saleh’s deposition raises “many subtle nuances and subjective impressions” which could not have been read from the earlier evidence. Film Packages, Inc. v. Brandywine Film Productions, Ltd. (1987) 193 Cal.App.3d 824, 827 n.3. This renders the renewed motion proper and not an untimely motion for reconsideration. The Court concludes that Moving Defendants’ evidence establishes a clear dispute as to the validity of the claims asserted in the Complaint and the TACC. Because it is Azriel’s burden to establish that it is more likely than not to obtain a judgment against Moving Defendants on its Complaint (see CCP § 481.190), the Court finds that Azriel is not entitled to the right to attach orders.

The Court notes that Torkan’s declaration asserts that Roya owns separate property which secured the money lent to Saleh and that Torkan had nothing to do with this decision. Torkan Decl. ¶¶ 7-9. This only adds to the disputed issues in this action. Azriel has also argued that the merits of the TACC’s has been litigated and rejected by various courts: however, Azriel’s evidence does not support this assertion.

6. Attorney Fees
The Court notes that Moving Defendants have requested attorney fees pursuant to CCP §§ 490.010(a) and 490.020(a)(2). However, sanctions are permitted only upon a showing of a “wrongful attachment” which is defined as an unauthorized attachment. CCP § 490.010(a). Moving Defendants do not establish that Azriel’s attachment orders and writs were unauthorized: Moving Defendants’ motion is granted only on the ground that subsequent evidence supports the finding that the attachment orders and writs should be set aside. Therefore, no attorney fees are awarded.

7. Ruling
The renewed motion to set aside the right to attach orders and writs of attachment is granted. No attorney fees are awarded.

VI. Motion to Quash Second Deposition Subpoena
On 1/10/14, the Court granted Moving Defendants’ motion to quash a deposition subpoena propounded by Azriel seeking the production of business records of Pacific Western Bank for Moving Defendants as being deficient as to form as to the designation of a proper deposition officer. The Court noted that Azriel subsequently propounded a second deposition subpoena to which Moving Defendants’ have filed a motion to quash. On 1/15/14, the Court noted that the documents subject to the second subpoena are subject to disclosure depending on the ruling on the renewed motion to set aside. See M.O. dated 1/15/14.

The Court notes that the parties’ arguments as to this second deposition subpoena concerned solely the procedural propriety of propounding the second deposition subpoena. Consistent with the Court’s ruling on the renewed motion to set aside, the Court finds that there is no good cause for the deposition subpoena (see CCP § 485.230). Therefore, the motion to quash second deposition subpoena is moot. No sanctions are awarded.