Case Number: BC538444    Hearing Date: July 22, 2014    Dept: 73

Dept. 73
Rafael Ongkeko, Judge presiding

FELDMAN, etc. vs. KASNETSIS, etc., et al. (BC538444)

Counsel for defendants/demurring/moving parties: Roy Jimenez (Tredway, etc.)
Counsel for plaintiff/opposing party: James Fedalen (HFL, etc.)

Matter #1: Defendants’ demurrer (filed 4/28/14) to complaint
Matter #2: Defendants’ motion for protective order, etc. (filed 6/2/14)
Additional matters: Case Management Conference and Defendants’ Notice of related case

TENTATIVE RULINGS:
Matter #1: Defendants’ demurrer (filed 4/28/14) to complaint is overruled in part; sustained in part:

First cause of action for breach of contract against Ted Kasnetsis: The demurrer to the first cause of action is OVERRULED. Defendant demurs on the ground that plaintiff lacks standing to sue on behalf of JPF because defendants contend plaintiff states a derivative, not a direct, action that resulted in damage to JPF. The court disagrees. While there may be other facts that might somehow lead to an invalidation of this oral agreement, plaintiff has stated sufficient facts to allege an individual, direct claim against Ted Kasnetsis for breach of contract.

Second cause of action for breach of fiduciary duty against all defendants: The demurrer to the second cause of action is SUSTAINED with leave to amend as to defendant BFP; OVERRULED as to the individual Kasnetsis defendants. Plaintiff has standing to bring this claim in his derivative capacity and reasonable inferences drawn from the complaint as a whole show a demand on behalf of the corporation would be futile. Actions alleged to have been taken by the Kasnetsis defendants in breach of their fiduciary duty to JPF are sufficient. However, as against defendant BFP, even assuming that there is a landlord-tenant or creditor-debtor relationship between BFP and JPF, the allegations are not clear and are at this point insufficient to show BFP is independently liable to JPF under a fiduciary duty theory. Any attempt to tie in BFP as an alter ego of the Kasnetsis, a “reverse” alter ego theory, is invalid. See Postal Instant Press, Inc. v. Kaswa Corp. (2008) 162 Cal.App.4th 1510, 1523.

Plaintiff is granted leave either to file and serve a writing by August 1, 2014 indicating no intent to amend the complaint or to file and serve a first amended complaint by that date. If plaintiff elects the latter, a red-line copy of the amended complaint showing the changes from the previous complaint is to be concurrently provided to defendant. If defendant intends to file a demurrer to the amended complaint, defendant must lodge directly in Dept. 73 the red-line copy of the amended complaint with its demurrer.
MATTER #2: Defendants’ motion for protective order, etc. (filed 6/2/14).
Preliminary ruling re filing fees for motion: Defendants’ motion seeks a protective order involving five (5) discovery requests: special interrogatories propounded to defendant Ted Katsenakis (Ex. A, 330 items); request for production of documents to defendants Ted and Traci Katsenakis (Ex. B, 174 categories to each defendant); special interrogatories to defendant BFP (Ex. C, 92 items); and request for production of documents to defendant BFP (Ex. D, 115 categories). However, only one motion filing fee was paid. Moving parties shall present a receipt at the time of the hearing showing payment of a filing fee for four additional motions.
Ruling re plaintiff’s objection (#1) to Hellbusch declaration: Sustained.
Tentative rulings:
1. Special interrogatories propounded to defendant Ted Katsenakis (Ex. A, 330 items):
2. Request for production of documents to defendants Ted and Traci Katsenakis (Ex. B, 174 categories to each defendant):
3. Special interrogatories to defendant BFP (Ex. C, 92 items):
4. Request for production of documents to defendant BFP (Ex. D, 115 categories)
In light of the court’s ruling on the demurrer, with respect to discovery propounded against the Katsenakis defendants, the parties have not engaged in an adequate meet and confer. They are ordered to do so and, thereafter, submit a joint statement regarding remaining disputed items. The court will continue the motion and set a further briefing schedule, including any new requests for sanctions, if any, by any party. Sanctions are denied at this time.
With respect to discovery propounded against defendant BFP, discovery is stayed pending plaintiff’s service of a first amended complaint. As with the above ruling concerning discovery against the Katsenakis defendants, plaintiff and BFP are ordered to meet and confer thereafter regarding remaining disputed items, including stipulating to a protective order concerning confidential information.
RELATED CASE: Defendants’ notice of related case (Scott Feldman vs. JPF, etc., BC541808). The court intends to find these cases are related and will order the case transferred from Dept. 14. The parties’ CMC statements indicate a stipulation to consolidate the two matters has been reached.
Case Management Conference: Set FSC and jury trial dates.
Defendants to give notice of rulings.