Case Number: KC070554 Hearing Date: June 18, 2019 Dept: O

ANALYSIS

Plaintiffs’ motion for leave to file third amended complaint is GRANTED. The TAC is deemed filed this date.

Plaintiffs Leodegario Santa Cruz, El Terremoto, Inc. and Last Round Productions, Inc. (collectively, the “Plaintiffs”) move for leave to file a Third Amended Complaint (“TAC”) pursuant to Code of Civil Procedure section 473.

“A court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleadings.” (CCP § 473(a)(1).) Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the court’s discretion will usually be exercised liberally to permit amendments of the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.)

Plaintiffs have discovered that Defendants Rosa Perez and Maggie’s Bookkeeping, Inc. allegedly engaged in a fraudulent sale of Defendant Perez’ home (the “Rialto Property”) a week after Defendants Rosa Perez, Maggie’s Bookkeeping, Inc., Licca Kombative Art, Inc., and Jose Perez Licca (collectively, the “Defendants”) informed Plaintiffs that two checks totaling $365,765.00 from Plaintiffs’ account would be sued to pay a tax debt. Instead the funds were used to repay a prior loan outstanding. Plaintiffs seek to add UVTA causes of action against Defendants and others that participated in the alleged fraudulent transfer of the Rialto Property. Plaintiffs also seek to litigate the speculative investment real estate (the “Arizona Property) in which Defendants allegedly used improper loan funds provided by Plaintiffs to Defendants.

The Court finds that judicial efficiency favors resolving all of the parties’ disputed matters in the same lawsuit. Accordingly, the motion is GRANTED. The TAC is deemed filed this date.

Plaintiffs’ preliminary injunction, right to attach order, and issuance of writ of attachment is conditionally GRANTED on a showing of a valid verification for the Third Amended Complaint by Plaintiffs. The amount of the writ is $428,950.96, and an undertaking of $10,000 is ordered as provided for by statute. (CCP § 489.220.)

At the hearing, a court shall consider the showing made by the parties appearing and shall issue a right to attach order, which shall state the amount to be secured by the attachment determined by the court in accordance with Section 483.015 or 483.020, if it finds all of the following:

1. The claim upon which the attachment is based is one upon which an attachment may be issued;

2. Plaintiffs have established the probable validity of the claim upon which the attachment is based;

3. The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based. (CCP § 484.090(a).)

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 the additional evidence or points and authorities. (CCP § 484.090(d).)

Claim

An attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney’s fees. (CCP § 483.010.) A plaintiff’s claim against a natural person must arise out of the defendant’s conduct of a trade, business or profession. (CCP § 483.010(c); Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson (1987) 197 Cal.App.3d 1, 4.) The court has the power to determine disputed facts on the basis of preponderance of evidence as disclosed in the declarations. (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80.)

Here, the claim is for money, and based upon a written agreement, whose total sum is more than $500. The claim is supported by the declaration of Christopher Hellmich, attorney for Plaintiffs, and a previously amended complaint verified by Plaintiff Leodegario Santa Cruz. The claim arises out of a debt owed by Defendants’ and their business. The claim is proper. However, the Court notes that Applications are submitted based on the second amended complaint, which is no longer operative due to Plaintiffs’ request for leave to amend, which was granted. The court notes that no verification was attached to the proposed TAC. Thus, Plaintiffs are asked to submit a verification of pleading for the TAC before the Court issues its order.

Probable Validity

A claim has “probable validity” where “it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” (CCP § 481.190.)

Plaintiffs have established probable validity of their claim by presenting evidence of the contracts and that Defendants concede they have no documents or other evidence demonstrating they repaid the loan and Plaintiffs have not received such payment.

Purpose of Attachment

As stated on the Application for Right to Attach Order (Judicial Council Form AT-105, No. 4), the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based.

Amount of Writ

The writ will issue for the amount of the claimed indebtedness, plus an amount to cover costs and allowable attorney fees as determined by the court reduced by… any security interest held by plaintiff in defendant’s property. (CCP § 483.015.) A writ of attachment issued without the mandated bond is void. (Vershbow v. Reiner (1991) 231 Cal.App.3d 879, 882.)

The amount of the writ is $428,950.96 against each defendant, and an undertaking of $10,000 per defendant is ordered as provided for by statute. (CCP § 489.220.)

Plaintiff Leodegario Santa Cruz’s motion to compel further responses motion to compel further responses by defendants Rosa Perez and Maggie’s Bookkeeping, Inc. to plaintiff’s request for production of documents (set one) is GRANTED. Monetary sanctions in the amount of $2,125.00.

Plaintiff Leodgario Santa Cruz (“Plaintiff”) moves the court for an order requiring Defendants Rosa Perez and Maggie’s Bookkeeping, Inc. (collectively “Defendants”) to provide further verified responses to his request for production of documents (set one). Plaintiff also seeks monetary sanctions of $2,125.00 in total for the two motions against Defendants and their counsel Randy K. Bell, Esq.

Code of Civil Procedure section 2031.310 allows a party to file a motion compelling further answers to document requests if it finds that the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. (CCP § 2031.310, subds. (a)(2).) The motion shall be accompanied with a meet and confer declaration. (CCP § 2031.310, subds. (b)(2).)

Any documents produced in response to a demand for inspection, copying, testing, or sampling shall either be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand. (CCP § 2031.280, subd. (a).)

Plaintiff contends that Defendants did not produce the responsive documents either as the documents are kept in the usual course of business, or in a manner that is organized and labelled to correspond with the categories in the demand. (CCP § 2031.280, subd. (a).)

While the produced documents seem to be organized and labelled by Defendants through digital folders, the responses themselves do not indicate which folder holds the responsive documents to that particular request.

Thus, the motions are GRANTED. Defendants are to file supplemental response within ten (10) days identifying the categories in the Requests that they respond to and responses must be in compliance with Code of Civil Procedure section 2031.210, et seq.

Sanctions:

Code of Civil Procedure section 2030.310(d) authorizes the court to impose a sanction against any party/attorney who unsuccessfully makes or opposes a motion to compel further responses, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

Here, sanctions are appropriate because Defendants served incomplete and evasive responses to discovery. Furthermore, Defendants’ counsel was unwilling to update or supplement Defendants’ responses after a meet and confer attempt by Plaintiff’s counsel. (See Declaration of Christopher Hellmich, ¶¶ 10-13.) Accordingly, sanctions are imposed against Defendants and their counsel in the sum of $2,125.00, payable within thirty (30) days.