Case Information

19-CIV-01274 | ROBERT BRANZUELA vs. FREDERICK P. KOO, et al

Case Number
19-CIV-01274

Court
Civil Unlimited

File Date
03/08/2019

Case Type
(26) Unlimited Other Real Property

Case Status
Active

Party
Plaintiff
BRANZUELA, ROBERT

Active Attorneys

Lead Attorney
SHAPERO, SARAH
Retained

Defendant
KOO, FREDERICK P.

Active Attorneys

Lead Attorney
MCSWEENEY, BRIAN J
Retained

Defendant
KOO, SHERRY W.

Active Attorneys

Lead Attorney
MCSWEENEY, BRIAN J
Retained

Defendant
DOES 1-50, INCLUSIVE

Cause of Action

File Date
Cause of Action
Type
Filed By
Filed Against
03/08/2019 Complaint Action BRANZUELA, ROBERT
KOO, FREDERICK P.
KOO, SHERRY W.
DOES 1-50, INCLUSIVE
Events and Hearings

03/08/2019 New Filed Case

03/08/2019 Civil Case Cover Sheet

Civil Case Cover Sheet

03/08/2019 Complaint

Complaint

03/08/2019 Summons Issued / Filed

Summons Issued / Filed

03/08/2019 Notice of Case Management Conference

Notice of Case Management Conference

03/08/2019 Cause Of Action

Action
ComplaintFile Date
03/08/2019
04/08/2019 Proof of Service by PERSONAL SERVICE of

Proof of Service by PERSONAL SERVICE of SUMMONS, COMPLAINT, CIVIL CASE COVER SHEET, NOTICE OF CMC, A

Comment
SUMMONS, COMPLAINT, CIVIL CASE COVER SHEET, NOTICE OF CMC, ADR IN CIVIL CASES, NONREFUNDABLE JURY FEE FAQ
04/08/2019 Proof of Service by SUBSTITUTED SERVICE of

Proof of Service by SUBSTITUTED SERVICE of SUMMONS, COMPLAINT, CIVIL CASE COVER SHEET, NOTICE OF CMC

Comment
SUMMONS, COMPLAINT, CIVIL CASE COVER SHEET, NOTICE OF CMC, ADR IN CIVIL CASES, NONREFUNDABLE JURY FEE FAQ SERVED ON FREDERICK KOO, CO-OCCUPANT
05/03/2019 Demurrer and First Appearance Fee to

Demurrer and First Appearance Fee to DEMURRER BY FREDERICK P KOO AND SHERRY W KOO TO COMPLAINT FILED

Comment
DEMURRER BY FREDERICK P KOO AND SHERRY W KOO TO COMPLAINT FILED BY ROBERT BRANZUELA
05/03/2019 First Paper Fee Paid (Unlimited)

05/03/2019 Request for Judicial Notice

Request for Judicial Notice IN SUPPORT OF DEMURRER BY FREDERICK P KOO AND SHERRY W KOO TO COMPLAINT

Comment
IN SUPPORT OF DEMURRER BY FREDERICK P KOO AND SHERRY W KOO TO COMPLAINT FILED BY ROBERT BRANZUELA
05/03/2019 Declaration in Support

Declaration in Support OF BRIAN J MCSWEENEY IN SUPPORT OF DEMURRER BY FREDERICK P KOO AND SHERRY W K

Comment
OF BRIAN J MCSWEENEY IN SUPPORT OF DEMURRER BY FREDERICK P KOO AND SHERRY W KOO TO COMPLAINT FILED BY ROBERT BRANZUELA
05/03/2019 Memorandum of Points and Authorities in Support

Memorandum of Points and Authorities in Support IN SUPPORT OF DEMURRER BY FREDERICK P KOO AND SHERRY

Comment
IN SUPPORT OF DEMURRER BY FREDERICK P KOO AND SHERRY W KOO TO COMPLAINT FILED BY ROBERT BRANZUELA
05/03/2019 Notice of Hearing re

Notice of Hearing re NOTICE OF HEARING ON DEMURRER BY FREDERICK P KOO AND SHERRY W KOO TO COMPLAINT

Comment
NOTICE OF HEARING ON DEMURRER BY FREDERICK P KOO AND SHERRY W KOO TO COMPLAINT FILED BY ROBERT BRANZUELA
05/09/2019 Stipulation and Proposed Order received & forwarded to Dept

Stipulation and Proposed Order received & forwarded to Dept #3 TO CONTINUE HEARING REGARDING DEMURRE

Comment
#3 TO CONTINUE HEARING REGARDING DEMURRER DATE AND RESET PREHEARING DEADLINES
05/13/2019 Stipulation & Order

Stipulation & Order Type: TO CONTINUE HEARING REGARDING DEMURRER DATE AND RESET PREHEARING DEADLINE

Comment
Type: TO CONTINUE HEARING REGARDING DEMURRER DATE AND RESET PREHEARING DEADLINE Signed by: JUDGE GRANDSAERT Date Signed: 5/10/19
05/15/2019 Notice of Motion and Motion to Quash

Notice of Motion and Motion to Quash PLAINTIFF’S NOTICE OF MOTION AND MOTION TO QUASH/MODIFY DEPOSIT

Comment
PLAINTIFF’S NOTICE OF MOTION AND MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS
05/15/2019 Memorandum of Points and Authorities in Support

Memorandum of Points and Authorities in Support OF PLAINTIFF’S MOTION TO QUASH/MODIFY DEPOSITION SUB

Comment
OF PLAINTIFF’S MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS
05/15/2019 Declaration in Support

Declaration in Support OD SARAH SHAPERO IN SUPPORT OF PLAINTIFF’S MOTION TO QUASH/MODIFY DEPOSITION

Comment
OD SARAH SHAPERO IN SUPPORT OF PLAINTIFF’S MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS
05/15/2019 Separate Statement

Separate Statement UNDER CRC 3.1345 IN SUPPORT OF PLAINTIFF’S MOTION TO QUASH/MODIFY

Comment
UNDER CRC 3.1345 IN SUPPORT OF PLAINTIFF’S MOTION TO QUASH/MODIFY
05/15/2019 Proposed Order Received

Proposed Order Received GRANTING PLAINTIFF’S MOTION

Comment
GRANTING PLAINTIFF’S MOTION
05/15/2019 Proof of Service by MAIL of

Proof of Service by MAIL of PLAINTIFF’S NOTICE OF MOTION AND MOTION TO QUASH/MODIFY DEPOSITION SUBPO

Comment
PLAINTIFF’S NOTICE OF MOTION AND MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS; ETC served on SEE SERVICE LIST
05/21/2019 Amended Notice of Motion and Motion to

Amended Notice of Motion and Motion to QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS R

Comment
QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS.
05/21/2019 Proof of Service by MAIL of

Proof of Service by MAIL of PLAINTIFFS’ AMENDED NOTICE OF MOTION AND MOTION TO QUASH/MODIFY DEPOSITI

Comment
PLAINTIFFS’ AMENDED NOTICE OF MOTION AND MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS served on SEE SERVICE LIST
06/13/2019 First Amended Complaint

First Amended Complaint

06/13/2019 Proof of Service by MAIL of

Proof of Service by MAIL of FIRST AMENDED COMPLAINT SERVED ON BRIAN MCSWEENEY

Comment
FIRST AMENDED COMPLAINT SERVED ON BRIAN MCSWEENEY
06/18/2019 Declaration in Opposition

Declaration in Opposition TO MOTION TO QUASH SUBPOENA; ETC…

Comment
TO MOTION TO QUASH SUBPOENA; ETC…
06/18/2019 Memorandum of Points and Authorities in Opposition

Memorandum of Points and Authorities in Opposition TO MOTION TO QUASH SUBPOENA

Comment
TO MOTION TO QUASH SUBPOENA
06/18/2019 Proof of Service – ELECTRONIC of

Proof of Service – ELECTRONIC of DECLARATION OF BRIAN J. MCSWEENEY IN SUPPORT OF OPPOSITION BY FEDER

Comment
DECLARATION OF BRIAN J. MCSWEENEY IN SUPPORT OF OPPOSITION BY FEDERICK P. KOO AND SHERRY W. KOO TO MOTION TO QUASH ETC… served on SARAH SHAPERO
06/24/2019 Case Management Statement

Case Management Statement

06/24/2019 Proof of Service by MAIL of

Proof of Service by MAIL of CASE MANAGEMENT STATEMENT

Comment
CASE MANAGEMENT STATEMENT
06/25/2019 Memorandum of Points and Authorities in Reply

Memorandum of Points and Authorities in Reply IN SUPPORT OF PLAINTIFFS’ MOTION TO QUASH/MODIFY DEPOS

Comment
IN SUPPORT OF PLAINTIFFS’ MOTION TO QUASH/MODIFY DEPOSITION FOR PRODUCTION OF BUSINESS RECORDS
06/25/2019 Declaration in Support

Declaration in Support OF REPLY TO PLAINTIFFS’ MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUC

Comment
OF REPLY TO PLAINTIFFS’ MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS
06/25/2019 Proof of Service by OVERNIGHT DELIVERY of

Proof of Service by OVERNIGHT DELIVERY of DECLARATION OF SARAH SHAPERO IN SUPPORT OF REPLY TO PLAINT

Comment
DECLARATION OF SARAH SHAPERO IN SUPPORT OF REPLY TO PLAINTIFFS’ MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS; ETC… served on SEE SERVICE LIST

06/26/2019 Hearing on Demurrer

~CIV Minute Order – Hearing on Demurrer 06/26/2019

Judicial Officer
Greenberg, Susan

Hearing Time
9:00 AM

Result
Held

Comment
DEMURRER BY FREDERICK P KOO AND SHERRY W KOO TO COMPLAINT FILED BY ROBERT BRANZUELA

06/26/2019 Tentative ruling adopted and becomes order:

Comment
DEMURRER This motion is dropped from calendar as moot. A First Amended Complaint was filed 6-13-19. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.
06/26/2019 Case Management Statement

Case Management Statement


07/01/2019 Motion to Quash

~CIV Minute Order – Motion to Quash 07/01/2019

Judicial Officer
Davis, III, Leland

Hearing Time
9:00 AM

Result
Held

Comment
PLAINTIFF’S NOTICE OF MOTION AND MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS

07/01/2019 Tentative ruling adopted and becomes order:

07/02/2019 Order

Order Type: ON MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDSSigned

Comment
Type: ON MOTION TO QUASH/MODIFY DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS Signed by: JUDGE DAVIS Date Signed: 7-2-19
07/02/2019 Notice of Entry of Order

Notice of Entry of Order Notice of Entry of Order on Motion to Quash-Modify Deposition Subpoena for

Comment
Notice of Entry of Order on Motion to Quash-Modify Deposition Subpoena for Production of Business Records

07/11/2019 Case Management Conference

~CIV Minute Order – Case Management Conference 07/11/2019

Judicial Officer
Grandsaert, John L.

Hearing Time
9:00 AM

Result
Held

07/11/2019 Demurrer to

Demurrer to FIRST AMENDED COMPLAINT FILED BY ROBERT BRANZUELA

Comment
FIRST AMENDED COMPLAINT FILED BY ROBERT BRANZUELA
07/11/2019 Notice

Notice OF HEARING ON DEMURRER BY FREDERICK P. KOO AND SHERRY W. KOO TO FIRST AMENDED COMPLAINT FILLE

Comment
OF HEARING ON DEMURRER BY FREDERICK P. KOO AND SHERRY W. KOO TO FIRST AMENDED COMPLAINT FILLED BY ROBERT BRANZUELA
07/11/2019 Memorandum of Points and Authorities in Support

Memorandum of Points and Authorities in Support OF DEMURRER BY FREDERICK P. KOO AND SHERRY W. KOO TO

Comment
OF DEMURRER BY FREDERICK P. KOO AND SHERRY W. KOO TO FIRST AMENDED COMPLAINT FILED BY ROBERT BRANZUELA
07/11/2019 Declaration in Support

Declaration in Support OF DEMURRER BY FREDERICK P. KOO AND SHERRY W. KOO TO FIRST AMENDED COMPLAINT

Comment
OF DEMURRER BY FREDERICK P. KOO AND SHERRY W. KOO TO FIRST AMENDED COMPLAINT FILED BY ROBERT BRANZUELA
07/11/2019 Request for Judicial Notice

Request for Judicial Notice IN SUPPORT OF DEMURRER BY DEFENDANTS’ TO FIRST AMENDED COMPLAINT

Comment
IN SUPPORT OF DEMURRER BY DEFENDANTS’ TO FIRST AMENDED COMPLAINT
07/22/2019 Notice of Case Management Conference

Notice of Case Management Conference CMC 10/31/19

Comment
CMC 10/31/19
07/22/2019 Notice of Motion and Motion to Compel Further Responses

Notice of Motion and Motion to Compel Further Responses DEFENDANTS’ NOTICE OF MOTION AND MOTION TO C

Comment
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE
07/22/2019 Declaration in Support

Declaration in Support DECLARATION OF ZACHARY R. SCRIBNER IN SUPPORT OF DEFENDANTS’ OF MOTION TO COM

Comment
DECLARATION OF ZACHARY R. SCRIBNER IN SUPPORT OF DEFENDANTS’ OF MOTION TO COMPEL ROBERT BRANZUELA
07/22/2019 Memorandum of Points and Authorities in Support

Memorandum of Points and Authorities in Support OF MOTION TO COMPEL

Comment
OF MOTION TO COMPEL
07/22/2019 Separate Statement

Separate Statement DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL ROBERT BRANZUELA TO

Comment
DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE
07/22/2019 Proof of Service by MAIL of

Proof of Service by MAIL of DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL ROBERT BRA

Comment
DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE;ETC served on SEE SERVICE LIST
08/15/2019 Memorandum of Points and Authorities in Opposition

Memorandum of Points and Authorities in Opposition TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMEN

Comment
TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT
08/15/2019 Proof of Service by PERSONAL SERVICE of

Proof of Service by PERSONAL SERVICE of PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’

Comment
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT served on SEE SERVICE LIST
08/21/2019 Declaration in Support

Declaration in Support SUPPLEMENTAL DECLARATION OF ZACHARY SCRIBNER

Comment
SUPPLEMENTAL DECLARATION OF ZACHARY SCRIBNER
08/21/2019 Proof of Service by MAIL of

Proof of Service by MAIL of SUPPLEMENTAL DECLARATION OF ZACHARY SCRIBNER ;ETC served on SEE SERVICE

Comment
SUPPLEMENTAL DECLARATION OF ZACHARY SCRIBNER ;ETC served on SEE SERVICE LIST
08/21/2019 Proof of Service by OVERNIGHT DELIVERY of

Proof of Service by OVERNIGHT DELIVERY of SUPPLEMENTAL DECLARATION OF ZACHARY SCRIBNER ;ETC served o

Comment
SUPPLEMENTAL DECLARATION OF ZACHARY SCRIBNER ;ETC served on SEE SERVICE LIST
08/21/2019 Request for Judicial Notice

Request for Judicial Notice Supplemental Request for Judicial Notice in Support of Demurrer by Frede

Comment
Supplemental Request for Judicial Notice in Support of Demurrer by Frederick P. Koo and Sherry W. Koo to First Amendment Complaint
08/21/2019 Memorandum of Points and Authorities in Reply

Memorandum of Points and Authorities in Reply Reply Brief in Support of Demurrer by Frederick P. Koo

Comment
Reply Brief in Support of Demurrer by Frederick P. Koo and Sherry W. Koo to First Amended Complaint
08/21/2019 Proof of Service by PERSONAL SERVICE of

Proof of Service by PERSONAL SERVICE of PLAINTIFF’S OPPOSITION TO DEFENDANT’S DEMURRER;ETC served on

Comment
PLAINTIFF’S OPPOSITION TO DEFENDANT’S DEMURRER;ETC served on SEE SERVICE LIST
08/22/2019 Notice of Unavailability of Counsel

Notice of Unavailability of Counsel

08/22/2019 Proof of Service by MAIL of

Proof of Service by MAIL of NOTICE OF UNAVAILABILITY served on SEE SERVICE LIST

Comment
NOTICE OF UNAVAILABILITY served on SEE SERVICE LIST
08/27/2019 Memorandum of Points and Authorities in Support

Memorandum of Points and Authorities in Support OF MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMP

Comment
OF MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, NON-EVASIVE RESPONSES TO (1) REQUESTS FOR PRODUCTION OF DOCUMENTS; ETC…
08/27/2019 Declaration in Opposition

Declaration in Opposition TO MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, ETC…

Comment
TO MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, ETC…
08/27/2019 Memorandum of Points and Authorities in Reply

Memorandum of Points and Authorities in Reply TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION

Comment
TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, ETC…
08/27/2019 Proof of Service by PERSONAL SERVICE of

Proof of Service by PERSONAL SERVICE of MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION

Comment
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, ETC… served on BRIAN J. MCSWEENEY

08/28/2019 Hearing on Demurrer

~CIV Minute Order – Hearing on Demurrer 08/28/2019

Judicial Officer
Davis, III, Leland

Hearing Time
9:00 AM

Result
Held

Comment
TO FIRST AMENDED COMPLAINT FILED BY ROBERT BRANZUELA

08/28/2019 Tentative ruling adopted and becomes order:

Comment
THE DEMURRER OF DEFENDANTS FREDERICK KOO AND SHERRY W. KOO TO FIRST AMENDED COMPLAINT OF PLAINTIFF ROBERT BRANZUELA. The Demurrer of Defendants Frederick Koo and Sherry W. Koo (“Defendants”) to First Amended Complaint (“FAC”) of Plaintiff Robert Branzuela (“Plaintiff”), is ruled on as follows: (1) Defendants’ Request for Judicial Notice is DENIED as to the Notice of Rescission because it was not provided with the request. Defendants’ Request for Judicial Notice of the Complaint in this action is GRANTED. (2) Demurrer to the First Cause of Action for Rescission is OVERRULED. Defendants demur to the First Cause of Action based on failure to allege facts sufficient to constitute a cause of action on the following grounds: (a) Plaintiff accepted the benefits of the contract and therefore rescission is not available as a matter of law; (b) Plaintiff repeatedly ratified the agreement and therefore rescission is not available as a matter of law; (3) Plaintiff is in breach of the contract and therefore is not entitled to rescission as a matter of law; and (4) Plaintiff fails to allege that he returned all benefits under the contract. The first three grounds raised by Defendants raise factual issues that the court may not resolve on the face of the FAC or from matters of which the court may take judicial notice. Defendants claim that Plaintiff accepted the benefits of the contract and lost the right to rescind, and also that Plaintiff ratified the agreement and lost the right to rescind. Defendants cite to Eustace v. Lynch (1941) 43 Cal.App.2d 486 in support. Eustace involved a trial, not a demurrer, in which evidence was presented as to whether rescission applied. The Court of Appeal looked to Civil Code section 1691, which provided that the party rescinding must rescind promptly upon discovering the facts which entitled him to rescind, if he is free from duress, menace, undue influence, or disability, and is aware of his right to rescind. (Id. at 489-490.) The Court of Appeal found that the appellant waived the right to assert the invalidity of the release and his conduct constituted a ratification of its terms. (Id. at 491.) The court finds that it cannot determine these grounds raised by Defendants on demurrer. Similarly, Defendants contend that Plaintiff cannot seek rescission because Plaintiff is in breach of the contract. However, Plaintiff seeks rescission of the 2018 Forbearance Agreement and Amendments based on undue influence and duress. (See FAC 31-35.) Defendants have not provided any authority that Plaintiff must first comply with the agreement for which it is seeking rescission based on undue influence and duress. Moreover, Plaintiff alleges he complied with the agreements by paying Defendants $1,000,0000 and paying $4,500 per month since October 2018, yet Defendants caused a Notice of Trustee’s Sale to be recorded on the property on or about October 30, 2018. (FAC 25.) Thus, based on Plaintiff’s allegations, Plaintiff does not appear to have been in breach at the time Defendants recorded the Notice of Trustee’s Sale. Lastly, Defendants argue that Plaintiff must restore everything of value received under the contract in order to bring this claim for rescission. Defendants claim that this benefit was a yearlong forbearance of Defendant’s right to foreclose. It is unclear how such value may be alleged by Plaintiff. Moreover, Defendant has not established that failure to allege such value bars Plaintiff’s claim. (3) Demurrer to the Second Cause of Action for Declaratory Relief is OVERRULED. Defendants demur that the Second Cause of Action fails to state facts sufficient to constitute a cause of action because: (a) Plaintiff fails to allege any dispute requiring a determination of rights; (b) the Notice of Default has been rescinded and therefore the stated basis for a declaration of rights is moot; (c) the claims are precluded by the representations, warranties, agreements, and releases made by Plaintiff in the Forbearance Agreement; and (d) Plaintiff represented and warranted in the Forbearance Agreement that he would not file any further lawsuits and released Defendants from all claims in the FAC. All four of Defendants’ arguments fail. Plaintiff alleges facts sufficient to support a claim for declaratory relief. (See FAC 36-45.) Also, Defendants have not established that the declaration of rights sought is moot. Lastly, Defendants have not established that the representations in the Forbearance Agreement and Amendments that Plaintiff claims were entered into under undue influence and duress, bar Plaintiff from seeking declaratory relief. This argument regarding the representations seems to ignore the declaration that Plaintiff seeks regarding his rights and obligations under the Second Conditional Amendment. (4) Demurrer to the Third Cause of Action for Injunctive Relief is SUSTAINED WITHOUT LEAVE TO AMEND. Injunctive relief is a remedy, not a cause of action. (Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168.) Plaintiff also concedes that this claim may be dismissed. (5) Demurrer to the Fourth Cause of Action for Specific Performance is OVERRULED. Defendants demur that this claim fails to allege facts sufficient to state a cause of action because: (a) the FAC fails to establish any performance to compel from Defendants; and (b) Plaintiff failed to perform the agreement which he seeks to have specifically performed and therefore as a matter of law is not entitled to the relief sought. Both of these arguments are based on Defendants’ contention that the Forbearance Agreement expired as of March 1, 2019. First, Defendants contend that the term of the Forbearance Agreement expired March 1, 2019, and therefore Defendants cannot be compelled to perform under the expired contract. Second, Defendants assert that Plaintiff failed to make the payment due on March 1, 2019 and therefore Plaintiff failed to perform under the terms of the Forbearance Agreement that he seeks to have specifically performed. (See Defendants’ Memorandum of Points and Authorities, pp. 13-14.) In opposition, Plaintiff points out that he is not compelling terms of the agreement that expired, but rather that Defendants accept the $4,500 monthly payments contemplated under the Second Amendment in perpetuity. (See FAC 66-73.) In this claim, Plaintiff asks that if the court does not rescind the 2018 Forbearance Agreement and Amendments, that the court compel specific performance of the Second Conditional Amendment. The FAC alleges that Plaintiff paid Defendants $1,000,000 within the stated deadline and paid $4,500 per month since October 2018. (FAC 68.) Despite Plaintiff’s compliance, Defendants caused a Notice of Trustee’s Sale to be recorded on the property on or about October 30, 2018, in breach of the Forbearance Agreement and Amendments. (FAC 69.) Plaintiff’s property is scheduled for foreclosure on March 12, 2019. (FAC 70.) Plaintiff seeks specific performance of the Second Conditional Amendment to Forbearance Agreement. (FAC 71.) Plaintiff has no adequate remedy at law for the injury he will suffer otherwise because Defendants will foreclose on the property. (FAC 73.) The March 1, 2019 payment upon which Defendants rely for their arguments, appears to be the balloon payment pursuant to paragraph 4.3 of the Forbearance Agreement. (See Defendants’ Request for Judicial Notice, Original Complaint, Exh. B, Forbearance Agreement.) The balloon payment requires Plaintiff to pay Defendants the remaining principal balance by March 1, 2019. (Ibid.) Since this date has now passed, Defendants seem to be contending that specific performance may no longer be compelled and that Plaintiff is required to allege the balloon payment was made. However, the FAC alleges that Defendants recorded the Notice of Trustee’s Sale on or about October 30, 2018 in breach of the Forbearance Agreement and Second Conditional Amendment to Forbearance Agreement. (See FAC 69.) As of that date, Plaintiff claims he paid $1,000,000 as required by paragraph 4.2 of the Forbearance Agreement, and further that he paid $4,500 monthly payments since October 2018. (See FAC 53-55.) The balloon payment for March 1, 2019 was not due at the time of Defendants’ alleged breach for which Plaintiff seeks specific performance though. As such, Defendants fail to show that Plaintiff has not stated a claim for specific performance. Defendants cite to Bekins Moving & Storage Co. v. Prudential Ins. Co. (1985) 176 Cal.App.3d 245, to support that specific performance cannot be compelled with respect to an expired contract. Bekins however, involved the time for exercising an option under a contract, in which an option to renew a lease was not timely exercised. It also involved cross-motions for summary judgment. (Id. at 250.) (6) Defendants are to file and serve an Answer to the First, Second and Fourth Causes of Action within 20 days of the date of the court’s order. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.
08/30/2019 Declaration in Opposition

Declaration in Opposition OF SARAH SHAPERO IN OPPOSITION TO MOTION TO COMPEL ROBERT BRANZUELA TO PRO

Comment
OF SARAH SHAPERO IN OPPOSITION TO MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, NON EVASIVE RESPONSES
08/30/2019 Memorandum of Points and Authorities in Opposition

Memorandum of Points and Authorities in Opposition TO MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE C

Comment
TO MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, NON EVASIVE RESPONSES
08/30/2019 Proof of Service by PERSONAL SERVICE of

Proof of Service by PERSONAL SERVICE of DECLARATION OF SARAH SHAPERO IN OPPOSITION TO MOTION TO COMP

Comment
DECLARATION OF SARAH SHAPERO IN OPPOSITION TO MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, NON EVASIVE RESPONSES;ETC served on SEE SERVICE LIST
08/30/2019 Memorandum of Points and Authorities in Reply

Memorandum of Points and Authorities in Reply TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION

Comment
TO DEFENDANTS’ SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, NON EVASIVE RESPONSES
09/03/2019 Memorandum of Points and Authorities in Reply

Memorandum of Points and Authorities in Reply BRIEF IN SUPPORT OF MOTION TO COMPEL ROBERT BRANZUELA

Comment
BRIEF IN SUPPORT OF MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, ETC…
09/03/2019 Proof of Service by MAIL of

Proof of Service by MAIL of DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION TO COMPEL; ETC… served on

Comment
DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION TO COMPEL; ETC… served on SEE SERVICE LIST

09/10/2019 Motion to Compel

~CIV Minute Order – Motion to Compel 09/10/2019

Judicial Officer
Davis, III, Leland

Hearing Time
9:00 AM

Result
Held

Comment
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE

09/10/2019 Tentative ruling modified and becomes order:

Comment
MOTION TO COMPEL ROBERT BRANZUELA TO PROVIDE COMPLETE, NON-EVASIVE RESPONSES TO (1) REQUESTS FOR PRODUCTION OF DOCUMENTS; (2) REQUESTS FOR ADMISSIONS; (3) FORM INTERROGATORIES; AND (4) PRODUCE ADDITIONAL DOCUMENTS; AND REQUEST FOR SANCTIONS BY FREDERICK P. KOO AND SHERRY W. KOO. Defendants’ motion to compel responses to (1) requests for production of documents, (2) requests for admissions, (3) form interrogatories, and (4) to produce additional documents is DENIED. The court finds Defendants have failed to meet and confer in good faith as required by CCP 2016.040. On July 10, Defendants’ counsel sent a letter to Plaintiff’s counsel “to confirm our discussion of the various issues raised during our telephonic meet and confer meeting of July 8, 2019.” The letter stated, in pertinent part, as follows: Given that we have previously agreed to extend the deadline on a motion to compel your client’s discovery production and responses to July 19, 2019, please provide your client’s revised responses no later than July 19, 2019 with the understanding that your client grants my clients a new deadline on filing a motion to compel on Mr. Branzuela’s Supplemental Responses up to and including August 31, 2019. Please immediately advise if you do not agree. Shapero Decl., Ex. A (emphasis in original). Plaintiff sent supplemental responses via email on July 19. Plaintiff served the responses by mail on the following Monday, July 22. Defendants’ counsel acknowledges he received the supplemental responses at 3;35 p.m. on Friday, July 19. Scribner Decl. 6. Notwithstanding counsel’s receipt of the supplemental responses on July 19, and notwithstanding the parties’ agreement to an August 31 deadline for filing a motion to compel, Defendants filed the present motion to compel on July 22. In light of these facts, the court finds that Defendants did not meet and confer in good faith. Defendants assert the deadline for filing their motion to compel was July 19. Scribner Supp. Decl., 6. This assertion, however, is contrary to defense counsel’s July 10 letter, in which counsel stated that the new deadline for filing a motion to compel supplemental responses was August 31, 2019. The letter instructed Plaintiff’s counsel to “Please immediately advise if you do not agree.” Plaintiff’s counsel did not indicate any disagreement with the new deadlines. Defendants also contend they did not agree to electronic service of the supplemental responses and that service was therefore untimely. Notably, however, in an email sent on May 16, Defendants’ counsel demanded electronic service of prior supplemental discovery responses as follows: “Your client sued my clients and have made outrageous and unsustainable allegations, thus I expect your client to have responsive Discovery documents within the 2 week period you requested, ie no later than May 24, 2019, you will deliver to me electronically code compliant responses.” Scribner Decl., Exhibit B, 5. Notwithstanding this correspondence demanding electronic service of discovery responses, Defendants now contend that Plaintiff’s supplemental responses were not timely served because the parties had no agreement to accept electronic service pursuant to CRC 2.251. Further, notwithstanding the fact that the May 16 email correspondence was sent from Brian McSweeney to Sarah Shapero, and that no other parties were copied on that correspondence, and notwithstanding the fact that both Mr. McSweeney and Mr. Scribner received the supplemental responses on July 19, Defendants assert that Plaintiff’s paralegal “attempted to ‘hide the ball’ by only including Mr. McSweeney in the email attempting to serve the Second Supplemental Responses[.]” Scribner Supp. Decl., 9. Considering Defendants’ prior demand for electronic service and counsel’s actual notice of the supplemental responses, Defendant’s claim that the supplemental responses were not timely served has dubious merit. In any event, however, the court need not reach the issue, because the court finds that Defendants have not met and conferred in good faith. Plaintiff’s request for sanctions is GRANTED in the amount of $2,180, pursuant to CCP 2023.020. Defendants shall pay this amount within 21 days of this order. Counsel ordered to meet and confer within 2 weeks. Counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.
09/12/2019 Order

Order Type: ON DEMURRER OF DEFENDANTS AMENDED COMPLAINT OF PLAINTIFF Signed by: JUDGE DAVIS Date Sig

Comment
Type: ON DEMURRER OF DEFENDANTS AMENDED COMPLAINT OF PLAINTIFF Signed by: JUDGE DAVIS Date Signed: 9-11-19
09/16/2019 Answer

Answer TO UNVERIFIED FIRST AMENDED COMPLAINT

Comment
TO UNVERIFIED FIRST AMENDED COMPLAINT
09/24/2019 Proposed Order Received

Proposed Order Received AFTER 09/10/19 HEARING. FWD TO DEPT. #1

Comment
AFTER 09/10/19 HEARING. FWD TO DEPT. #1
09/30/2019 Order

Order Type: AFTER 9/10/19 HEARING Signed by: JUDGE DAVIS Date Signed: 9/27/19

Comment
Type: AFTER 9/10/19 HEARING Signed by: JUDGE DAVIS Date Signed: 9/27/19
10/09/2019 Case Management Statement

Case Management Statement

10/09/2019 Proof of Service by MAIL of

Proof of Service by MAIL of CASE MANAGEMENT STATEMENT

Comment
CASE MANAGEMENT STATEMENT
10/09/2019 Case Management Statement

Case Management Statement


10/31/2019 Case Management Conference

Judicial Officer
Grandsaert, John L.

Hearing Time
9:00 AM