Original civil complaint filed. December 21, 2018 (2024)

Case

St. Germain, Paul T. vs. Dusombre, Kristin M.

Aug 19, 2024 |Black, Hon. Mary |Paternity Managed |Custody/Support/Parenting Time |ES24W1203WD

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In the matter of: Lindsay, Joyce

Aug 20, 2024 |Jennifer M.R |Probate Abuse / Conservator Managed |Conservatorship |ES24P2532PM

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In the matter of: Manning, Theodore L

Aug 22, 2024 |Yee, Hon. Michelle A |Estates and Administration |Formal Probate of Will with Appointment of Personal Representative |ES24P2547EA

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In the matter of: Beliveau, Cameron Michael

Aug 20, 2024 |Sauer, Hon. Nan M. |Guardianship Managed |Guardianship of Minor |ES24P2524GD

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In the matter of: Deleon, John

Aug 19, 2024 |Probate Abuse / Conservator Managed |Conservatorship |ES24P2515PM

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In the matter of: Alquinta, Hugo A

Aug 16, 2024 |Black, Hon. Mary |Estates and Administration |Informal Appointment of Personal Representative |ES24P2476EA

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In the matter of: Sullivan, Vincent Richard

Aug 20, 2024 |Estates and Administration |Voluntary Statement |ES24P2529EA

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In the matter of:

Aug 16, 2024 |Giordano, Hon. Frances M. |Probate Abuse / Conservator Managed |Conservatorship |ES24P2490PM

Ruling

23CV-0203159

Aug 25, 2024 |23CV-0203159

BELTRAN VS. M.K. & A., LLCCase Number: 23CV-0203159This matter is on calendar for a trial setting conference. The Court notes that Plaintiff filed a Motion for Leave toFile a First Amended Complaint that is calendared for hearing on September 16, 2024. The matter is continuedto Monday, September 16, 2024 at 9:00 a.m. in Department 63 for status of the case. No appearance isnecessary on today’s calendar.

Ruling

FCS059237 - SUNDT CONSTRUCTION INC V N. CALIFORNIA OFFICE (DMS

Aug 19, 2024 |FCS059237

FCS059237Motion to Compel ArbitrationTENTATIVE RULINGThe Court (Department Seven) self recuses pursuant to CCP Section 170.1(b)(6)(iii).Pursuant to the direction of Judge Stephen Gizzi, Supervising Judge of the CivilDivision, the matter is reassigned and continued to August 1, 2024 at 9:30 a.m.,Department Three.

Ruling

EVELYN CRISTINA RIVAS GONZALEZ, ET AL. VS 7934 LAUREL CANYON BLVD, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.

Aug 21, 2024 |19STCV28803

Case Number: 19STCV28803 Hearing Date: August 21, 2024 Dept: 68 Dept. 68 Date: 8-21-24 Case #19STCV28803 Trial Date: 10-17-24 ADMISSIONS MOVING PARTY: Plaintiff, Marina Mendoza RESPONDING PARTY: Defendant, Geeta Mehta, Executor of the Estate of Anil Mehta RELIEF REQUESTED Motions to Deem Requests for Admissions Admitted SUMMARY OF ACTION Plaintiffs allege substandard habitability conditions in an apartment building owned and/or managed by Defendants. On August 14, 20219, Plaintiffs filed a complaint for Violation of Civil Code section 1942.4, Tortious Breach of Warranty of Habitability, Private Nuisance, Business and Professions Code section 17200, and Negligence. RULING: Denied. Plaintiff Marina Mendoza (the notice of motion identifies Evelyn Gonzalez, but the attached exhibit lists Mendoza as the propounding party) moves to deem Requests for Admissions Admitted based on the failure to serve a verification with the responses. Plaintiff alternatively moves to compel further responses. The court electronic filing system shows no opposition or reply at the time of the tentative ruling publication cutoff. The motion was only reserved as a motion to deem responses to admissions admitted. The court will not consider any motion to compel further responses, due to the improper reservation of such a motion. The motion to deem admissions admitted relies on the lack of verification. Unverified responses constitute no response. (Appleton v. Sup. Ct. (1988) 206 Cal.App.3d 632, 635-636.) Pure objections however need not contain a verification. [Declaration of Shilpa Anand.] (Code Civ. Proc., § 2033.240, subd. (a).) Plaintiff otherwise concedes the objections were timely served, thereby precluding any finding of a waiver of objections. The motion is therefore DENIED on this basis. Even if the court considered the improperly reserved and noticed motion to compel further responses, the motion lacks sufficient support. The motion was timely filed after service of the objections, and also includes a separate statement. The court however finds an insufficient meet and confer effort supporting such a motion. The meet and confer only addresses the lack of verification without any address on the merits of the objections. The motion is therefore denied either way. A second motion on admissions for September 16, 2024, a motion for protective order and third motion to deem admissions admitted on September 18, two motions to compel deposition on October 9, and 16, 204, and five (5) scheduled motions to compel further responses in January 2025. The latter five items are scheduled well after the October 17, 2024, trial date. Any and all efforts to advance any of the numerous hearings via stipulation or ex parte motion to a date before the trial date may lead to the sua sponte setting of an expedited OSC re: Discovery Referee. The court encourages the parties to meet and confer. Plaintiff to give notice.

Ruling

ALPINE BLUE VS. HURLEY, ET AL

Aug 22, 2024 |CVCV21-0198057

ALPINE BLUE VS. HURLEY, ET ALCase Number: CVCV21-0198057This matter is on calendar for review regarding status of service and trial setting. This Court has previouslyrecused in this matter. The matter is continued to Monday, September 30, 2024 at 9:00 a.m. in Department 63for review regarding status of service and trial setting. No appearance is necessary on today’s calendar.

Ruling

JAY HOOPER, AN INDIVIDUAL, ET AL. VS JOHN ALEXANDER GIANOUTSOS RIGAS, AN INDIVIDUAL, ET AL.

Aug 20, 2024 |21STCV22508

Case Number: 21STCV22508 Hearing Date: August 20, 2024 Dept: 72 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 72 TENTATIVE RULING JAY HOOPER, et al., Plaintiffs, v. JOHN ALEXANDER GIANOUTSOS RIGAS, et al., Defendants. Case No: 21STCV22508 Hearing Date: August 20, 2024 Calendar Number: 6 (Add-On) Defendant Xenofon Ted Stavropoulos (Stavropoulos) moves for summary judgment or, in the alternative, summary adjudication, on the causes of action in the First Amended Complaint (FAC) filed by Plaintiffs Jay Hooper (Hooper), UW International Corp. (UW), and Crown Estate Holding LLC (CEH) (collectively, Plaintiffs) The Court GRANTS the motion for summary judgment. The release signed by Hooper bars the Plaintiffs claims. Background This case relates to a business venture whereby Stavropoulos, John Alexander Rigas (Rigas), and Hooper, (collectively, the Principals) formed Mission n95 Holdings, LLC (Defendant Mission) in the spring of 2020 to procure and provide personal protective equipment during the Covid-19 pandemic. Plaintiffs subsequently filed this lawsuit against Defendants Rigas and Mission (collectively, the Rigas Defendants), and Stavropoulos (collectively with Rigas and Mission, Defendants). On May 6, 2020, the Principals executed Missions Operating Agreement. (Undisputed Fact (UF) 6; Rigas Decl., Ex. 1 (Operating Agreement).) The Operating Agreement provided that each of the Principals (Stavropoulos, Rigas and Hooper) would be members of Mission. (UF 7.) Rigas also served as Missions Chief Executive Officer (UF 8.) Mission was formed as a manager-managed LLC with more than one manager. (Rigas Decl., Ex. 1 at p. 11.) Missions largest deal in 2020 was a purchase order from the State of California. On June 11, 2020, the Principals executed an agreement (the General Agreement) which set forth the terms by which UW and Mission would cooperate regarding the California order. (UF 9; Rigas Decl., Ex. 2 (General Agreement).) At the time of the California order, Mission had not yet been fully established as a business entity. Because an entity was required to do business with the State of California, the Principals utilized the bank account of UW, Hoopers company, for Missions transactions with the State of California. (Plaintiffs Additional Fact (AF) 9.) The $93 million in revenue was deposited into UWs bank account. (AF 26.) The parties also used Hoopers warehouse, owned by CEH, to store certain goods, which storage Plaintiffs allege Defendants did not pay for. According to Defendants, Hooper failed to contribute to the business by failing to source suppliers for the necessary product or secure financing that he had committed to provide. Defendants also contend that Hooper had misappropriated funds that were to be used in connection with fulfilling the California order. Hooper asserts that the other two principals were improperly withholding Mission profits that were owed to him. Near the end of December 2020, the Principals executed several agreements (collectively, the December Agreements): 1. The Mutual General Release Agreement (Mutual General Release), dated December 29, 2020, signed by Hooper, his wife Rebecca Hooper (consenting to her husbands execution of the agreement), Stavropoulos, and Rigas individually and on Missions behalf; 2. The Rescission Agreement, dated December 29, 2020, signed by the same four people in their same capacities as the Mutual General Release; 3. The First Amendment to General Agreement (Amended General Agreement), dated December 29, 2020, signed by Hooper on behalf of UW and Rigas on behalf of Mission; and 4. The Employment Agreement, which was dated as of May 6, 2020, signed by Rigas on behalf of Mission and Hooper as an Employee of Mission. (UMF 10.) The December Agreements rescinded Missions Operating Agreement (thereby eliminating Hooper and Stavropouloss interests in Mission and share in the companys profits), wound down the General Agreement between Mission and UW to confirm that they no longer had any obligations to each other, memorialized Hooper and Stavropouloss roles as employees of Mission and provided for their compensation (including a payment to Hooper of more than $5.5 million), and had the parties release each other from any past, existing, or future claims connected in any way with their business. (UMF 10.) The Mutual General Release contained a provision whereby each of the parties released the others from any and all past, present, or future claims, lawsuits, or other liabilities, whether known or unknown and whether suspected or unsuspected, based on any actions or omissions taken prior to its effective date. (Rigas Decl., Ex. 3 (Mutual General Release) at pp. 1-2.) The Mutual General Release contained a clause waiving Civil Code, section 1542, under which parties cannot ordinarily waive unsuspected claims that would have materially affected the settlement. (Rigas Decl., Ex. 3 at p. 2.) Each of the Mutual General Release, Rescission Agreement, and Employment Agreement contained a provision whereby the parties acknowledged that they had the opportunity to be represented by independent legal counsel in the negotiation and execution of the agreement and were entering into the agreement voluntarily, freely, and with full consent. (UMF 11.) Plaintiffs filed this action on June 16, 2021. The operative complaint is now the FAC, which raises claims for (1) breach of partnership agreement; (2) breach of contract; (3) fraud intentional misrepresentation; (4) fraud concealment; (5) conversion; (6) theft under Penal Code sections 496, 484(a), and 532; (7) breach of fiduciary duties; (8) breach of fiduciary duty by attorney; (9) breach of contract; (10) fraud intentional misrepresentation; (11) conversion; (12) theft under Penal Code sections 496, 484(a), and 532; (13) breach of fiduciary duties; (14) breach of fiduciary duty by attorney; (15) breach of contract; (16) fraud intentional misrepresentation; (17) conversion; (18) heft under Penal Code sections 496, 484(a), and 532; (19) breach of fiduciary duties; and (20) declaratory relief. Claims 1-8 are alleged by Hooper against Defendants. Claims 9-14 are alleged by UW against Defendants. Claims 15-19 are alleged by CEH against Defendants. Claim 20 is alleged by all Plaintiffs against Defendants. The Rigas Defendants moved for summary judgment on February 15, 2024 (the Prior Motion). On June 21, 2024, the Court issued an order (the Prior Order) granted the Rigas Defendants motion for summary judgment on the grounds that the General Release in the December Agreements fully covered Plaintiffs claims. The Court rejected Plaintiffs arguments that the December Agreements were procured through undue influence and economic duress. Stavropoulos filed this motion on June 3, 2024. Plaintiffs filed an opposition on July 30, 2024. Stavropoulos filed a reply on August 8, 2024. Request for Judicial Notice The Court grants Stavropouloss request for judicial notice and takes notice of the requested materials as public records. Evidentiary Objections The Court sustains the following of Stavropouloss evidentiary objections: 1 (lack of foundation); 3 (contradicts prior sworn deposition testimony); 6 (lack of foundation); 7 (contradicts prior sworn deposition testimony); 8 (contradicts prior sworn deposition testimony); 9 (contradicts prior sworn deposition testimony); 10 (contradicts prior sworn deposition testimony); 11 (contradicts prior sworn deposition testimony); 12 (contradicts prior sworn deposition testimony); 13 (contradicts prior sworn deposition testimony); 14 (contradicts prior sworn deposition testimony); 15 (lack of foundation; speculation; hearsay); 16 (hearsay). When the Court sustains the objection on the grounds that a statement contradicts prior sworn deposition testimony it means that the Court is applying the established rule that where a declaration submitted in opposition to a motion for summary judgment clearly contradicts the declarants earlier deposition testimony or discovery responses, the trial court may fairly disregard the declaration and conclude there is no substantial evidence of the existence of a triable issue of fact. (Whitmire v. Intersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087.) The Court overrules the remaining objections for purposes of summary judgment. Legal Standard The purpose of a motion for summary judgment or summary adjudication is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom [citation] and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party. (Aguilar, supra, at pp. 844-845 [quotation marks omitted].) On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) If the plaintiff cannot do so, summary judgment should be granted. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) Discussion General Release A valid release of claims bars an action on a claim that is the subject of the release. (San Diego Hospice v. County of San Diego (1995) 31 Cal.App.4th 1048, 1053.) Further, a general release that explicitly covers known and unknown claims and specifically waives Civil Code, section 1542 is enforceable and acts as a complete bar to all claims. (Ibid.) A general release will support summary judgment of claims falling within its scope. (Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, 588.) Plaintiffs do not dispute that their claims fall within the scope of release in the December Agreements. The release by its explicit terms bars Plaintiffs claims against Stavropoulos, entitling Stavropoulos to summary judgment. Stavropoulos therefore has met his initial burden on summary judgment, shifting the burden to Plaintiffs. In attempting to avoid summary judgment, Plaintiffs argue that they should be able to reach a jury notwithstanding the release because there are triable issues of fact on the validity of the release under three doctrines: undue influence, economic coercion, and constructive fraud. The Court examined, and rejected, Plaintiffs undue influence and economic coercion theories in the Prior Order granting summary judgment to the Rigas Defendants. Plaintiff asserts even fewer facts specific to Stavropoulos himself. Nevertheless, the Court considers the specific arguments raised by Plaintiffs in this later briefing and provides its analysis, where applicable, even when the reasoning also appears in the Prior Order. Undue Influence Plaintiffs argue that Defendants (including the Rigas Defendants, who have already obtained summary judgment, and Stavropoulos, who is the moving party on this motion) obtained Hoopers signatures on the December Agreements which contained the release through undue influence. Plaintiffs argue that the December Agreements are therefore voidable. Undue influence consists: 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; 2. In taking an unfair advantage of another's weakness of mind; or, 3. In taking a grossly oppressive and unfair advantage of another's necessities or distress. (Civil Code, § 1575.) [T]here are no fixed definitions or inflexible formulas. Rather, [courts] are concerned with whether from the entire context it appears that one's will was overborne and he was induced to do or forbear to do an act which he would not do, or would do, if left to act freely. (Keithley v. Civil Service Bd. (1970) 11 Cal.App.3d 443, 451.) Undue influence, is a shorthand legal phrase used to describe persuasion which tends to be coercive in nature, persuasion which overcomes the will without convincing the judgment. The hallmark of such persuasion is high pressure, a pressure which works on mental, moral, or emotional weakness to such an extent that it approaches the boundaries of coercion. (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 130 [citations omitted].) However, [u]ndue influence cannot be used as a pretext to avoid bad bargains or escape from bargains[.] (Id. at p. 132.) The party asserting undue influence must show undue susceptibility in the servient person, which need not be long-lasting nor wholly incapacitating, but may be merely a lack of full vigor due to age, physical condition, emotional anguish, or a combination of such factors. The reported cases have usually involved elderly, sick, senile persons alleged to have executed wills or deeds under pressure. (Id. at p. 131 [citations omitted].) Here, Plaintiffs discovery admissions show that his execution of the December Agreements was not the result of undue influence by the Defendants. Judicial admissions are conclusive concessions of the truth of a matter and have the effect of removing it from the issues. (Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425, 1433.) A party can therefore rely on judicial admissions when moving for summary judgment. (Ibid.) A judicial admission is a party's unequivocal concession of the truth of a matter, and removes the matter as an issue in the case. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 48.) This principle has particular force when the admission hurts the conceder's case. An express concession against one's interest is regarded as highly competent, credible evidence. (Ibid.) [W]hen discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried, certain of those stern requirements applicable in a normal case are relaxed or altered in their operation. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) Where & there is a clear and unequivocal admission by the plaintiff, himself, in his deposition ... we are forced to conclude there is no substantial evidence of the existence of a triable issue of fact. (Ibid [internal citation and quotation marks omitted].) Where a declaration submitted in opposition to a motion for summary judgment motion clearly contradicts the declarant's earlier deposition testimony or discovery responses, the trial court may fairly disregard the declaration and conclude there is no substantial evidence of the existence of a triable issue of fact. (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087 [internal citation and quotation marks omitted].) However, this rule does not apply where there is a reasonable explanation for the discrepancy[,] [nor does it] countenance ignoring other credible evidence that contradicts or explains that party's answers or otherwise demonstrates there are genuine issues of factual dispute. (Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 658 [citation omitted].) Hooper testified in his deposition that he did not want to sign the December Agreements and was planning to sue Rigas at the time when he signed the agreements. (Ardebili Decl., Ex. 11 at p. 473:19-474:4.) Hooper testified that [he] was forced by [his] wife to sign the agreement. Thats the reason why [he] sign[ed]. (Ardebili Decl., Ex. 11 at p. 474:10-22.) Hooper testified that it did not matter to him what was in the agreements, because he did not agree. (Ardebili Decl., Ex. 11 at p. 474: 19-22.) Hooper testified that, although he understood that when one signs an agreement, one commits to fulfill any duties they have under the agreement, he nevertheless signed the December Agreements with no intention to be bound by them. (Ardebili Decl., Ex. 11 at p. 475:1-14.) When asked if he wanted to get the money and then sue afterwards for more money, Hooper testified: Yes. (Ardebili Decl., Ex. 11 at p. 47:15-17.) Hooper testified that at the time when he signed the December Agreements, he did not care whether they were enforceable. (Ardebili Decl., Ex. 11 at p. 488:16-19.) In response to the question [y]ou testified earlier that you were forced to sign these four December 29, 2020 agreements. Who forced you to sign them?, Hooper answered Rebecca Hooper, my wife. (Ardebili Decl., Ex. 11 at p. 476:18-21.) Hooper testified that his wife forced him to sign the agreements by saying that they needed the money. (Brown Decl., Ex. 11 at p. 477:7-9.) Although Hooper initially testified that Rigas forced him to sign the agreements as well (Ardebili Decl., Ex. 11 at p. 476:22-24), Plaintiff later admitted that Rigas did not say anything to Hooper to coerce him to sign the agreements. (Brown., Ex. 11 at p. 477:21-24.) Hoopers testimony reads as follows: Q. So Mr. Rigas did not say anything to you to coerce you to sign these four agreements; is that correct? A. Yes. (Id.) Hooper testified that, other than his wife pressuring him to sign the documents as quickly as possible, there was no time pressure on him in terms of reviewing or signing the December Agreements. (Brown Decl., Ex. 11 at p. 478-7-11.) Plaintiffs contend that Hooper testified as such because he believed that the time period being discussed was only the morning of December 29, 2020, when Hooper signed the agreements. Plaintiffs cite to page 470 of the Hooper deposition (Brown Decl., Ex. 11 at p. 470) to indicate that the time period being discussed was the morning of December 29, 2020 only. Nothing on page 470 supports this interpretation. Hooper is asked whether he signed the December Agreements on December 29, 2020, and is then asked follow-up questions relating to the events leading up to his execution of the agreements. At no point does the questioning attorney indicate that Hooper is to constrain his responses to the questions about pressure and influence to the morning of December 29, 2020 only. Hoopers deposition testimony by its terms relates to the full time leading up to his execution of the December Agreements. The Court is therefore unpersuaded by Plaintiffs attempts to introduce new evidence in Hoopers declaration that Rigas attempted to bully and coerce him into signing the December Agreements or that anyone other than his wife forced him to sign them. Plaintiffs argue that Hooper had limited time to consult an attorney because the December Agreements were presented to him at the beginning of a holiday weekend, and he was asked to sign the following Monday. However, when asked why Hooper did not consult with an attorney prior to December 29, 2020, Hooper testified that he did not have time, and that the only reason he was under time pressure was because his wife was pressuring him to sign the agreements due to how much money they would receive. (Brown Decl., Ex. 11 at p. 499:1-10.) Plaintiffs contend that Hooper offered all of this testimony at the end of four days of depositions, leaving unclear the implication of that assertion. In any event, the fourth session of his deposition, when he offered the foregoing testimony, was on December 11, 2023 long after the third day on May 5, 2023. (Compare Lee Decl. ¶¶ 5-7 with Brown Decl., Ex. 11 and Brown Decl., Ex. 13.) It appears that Hooper had ample time to recover from any stresses of the first three days before going into the fourth. Hoopers deposition thus demonstrates clear, unequivocal, and repeated admissions that Rigas did not coerce him into signing the December Agreements, and that the pressure on Hooper came from his wife. Plaintiffs have not shown that Rigas or any of the other Defendants engaged in any persuasion which overcomes the will. (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 130 [citation omitted].) Much less have Plaintiffs shown that Rigas exerted any pressure which works on mental, moral, or emotional weakness to such an extent that it approaches the boundaries of coercion. (Id.) Plaintiffs argue undue influence based on a message sent by Rigas to Hoopers wife prior to the execution of the December Agreements. Exhibit 22 to Rebecca Hoopers declaration, the text message in question, reads as follows: 2020-12-28 21:46:33 to Rebecca Hooper As a courtesy to you, I want you to know that I am fed up with all of your [husbands] words. I have tried very hard to make him understand. I have a 12pm appointment with my lawyers to do what now must be done without concern for the consequences to Jay. Nothing short of receiving, in my hand, the executed agreements that I left with him, will reverse what will become irreversible. (Rebecca Hooper Decl., Ex. 22.) Such a pre-litigation demand by Rigasespecially coupled with Hoopers repeated concessions in his depositiondoes not create a triable issue of fact concerning undue influence. The text by its terms is a last-ditch effort to seek an agreement and prevent legal action, not evidence of undue influence. The Court similarly rejects Plaintiffs argument that his new declarations provide reasonable explanations for his deposition testimony in the form of statements that when Hooper testified that his wife pressured him to sign the agreements, what he actually meant was that she was conveying the contents of Rigass text message. Plaintiffs proposed explanation is not reasonable. Plaintiff repeatedly testified that his wife forced him to sign the agreements, that the only time pressure was from his wife, and that Rigas did not say anything to coerce Hooper into signing. No reasonable reading of Hoopers deposition transcript could lead a jury to conclude that Hooper actually meant that his wife was acting as a vehicle for Rigass pressure, rather than of her own volition, and that Hooper simply forgot to mention that fact at any point during his deposition. Furthermore, even if Rigas had sent the text message directly to Hooper, it would not constitute undue influence. Plaintiffs argue that there is a presumption of undue influence here. [A] presumption of undue influence arises when there is a concurrence of the following elements: (1) the existence of a confidential or fiduciary relationship between the testator and the person alleged to have exerted undue influence; (2) active participation by such person in preparation or execution of the [instrument]; and (3) an undue benefit to such person or another person under the [instrument] thus procured. (Estate of Gelonese (1974) 36 Cal.App.3d 854, 861862 [citations and quotation marks omitted].) The presumption of undue influence, when established, is a rebuttable presumption. (Id. at p. 862.) The effect of a presumption affecting the burden of proof is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact. (Id. at p. 863 [citation and quotation marks omitted].) Even assuming for the sake of argument that a presumption of undue influence exists, Defendants have rebutted it. Plaintiffs discovery admissions show that any strong influence on him to sign the December Agreements came not from Rigasand certainly not from Stavropoulosbut from Hoopers wife. Constructive Fraud Plaintiffs argue that the releases they provided are void under the doctrine of constructive fraud. Constructive fraud consists: 1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or, 2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud. (Civ. Code, § 1573.) [D]uring the existence of such fiduciary relationship any transaction by which one of the co-adventurers secures an advantage over the other or others is presumptively fraudulent and casts a burden on such party gaining the advantage to show fairness and good faith in all respects. (Boyd v. Bevilacqua (1966) 247 Cal.App.2d 272, 290.) As an initial matter, Plaintiffs have not introduced evidence that Stavropoulos was a manager of Mission. They cite paragraphs 9-10 and Ex. 4 page 7 of the Hooper Declaration, but nothing in that evidence states he was a manager. If Stavropolous was only a member and not a manager, he did not owe Hooper any fiduciary duties aside from the general duty of good faith and fair dealing. (Corp. Code, § 17704.09, subds. (d), (f).) Moreover, Plaintiffs have not introduced evidence that either Stavropoulos or Rigas acted to deceive Hooper. Plaintiffs contend that Stavropoulos admitted in his deposition that he conspired with Rigas to deprive Hooper of Hoopers share of Missions profits. Plaintiffs do not provide a specific citation for this claim, instead pointing generally at a large collection of excerpts from Stavropouloss deposition, which comprise Exhibit 26 to the declaration of Edward Lee. Exhibit 26 consists of more than fifty pages of deposition excerpts. Riffling through them does not reveal any facts that assist Plaintiffs on this motion. Nor is it appropriate to ask the Court to root through the record to find what Plaintiffs claim are disputed facts. Pointing to a large number of pages without sufficient explanation does not meet Plaintiffs burden. Plaintiffs also cite to an assertion in their separate statement (AF 77) that Rigas admitted that he never intended to follow the operating agreement, which in turn cites Declaration of Edward Lee, Ex. 39 at pp. 120:11 122:2.) There is no Exhibit 39 to the Lee declaration. Rather, the record shows that the parties had a dispute that they eventually resolved. As discussed above, the December Agreements functioned as an omnibus settlement agreement to resolve, among other things, the parties potential claims against each other along with their remaining obligations to each other relating to Mission. The December Agreements were not a simple resolution of the profit share owed to Hooper they were a bargained for exchange of multiple material benefits. Plaintiffs have not introduced evidence to show that the resulting settlement was unfair to Hooper. Plaintiffs contend that Rigas transferred $93 million from UWs bank account to Missions bank account. (AF 42, 78.) This is not evidence of wrongdoing the General Agreement between Mission and UW provided that UW would act as an intermediary and use its bank account to receive from the State of California the revenue owed to Mission which was $93 million. (UF 9; AF 9, 26.) Plaintiff therefore has not established a presumption of constructive fraud. Economic Duress Economic duress may come into play upon the doing of a wrongful act which is sufficiently coercive to cause a reasonably prudent person faced with no reasonable alternative to succumb to the perpetrators pressure. (Perez v. Uline, Inc. (2007) 157 Cal.App.4th 953, 959 [citation omitted].) But courts are reluctant to set aside settlements and will apply economic duress only in limited circ*mstances and as a last resort. (Id. [citations and internal quotation marks omitted].) Plaintiffs argue that Rigas exerted economic duress on Hooper in the formation of the December Agreements. Plaintiffs argue that Hoopers family was short on money to meet their financial obligations, that Rigas knew this, and that Rigas used that fact to pressure Hooper into accepting the December Agreements. As discussed above, Hooper has admitted that the immediate pressure on him to sign the agreements came from his wife, and not from Rigas. Moreover, Hooper had reasonable alternative to accepting the December 2020 Agreements he could negotiate further, contact a lawyer as he planned to do, or bring a legal action, as he also planned to do. Hooper did not take any of those options. Instead, Hooper testified that he decided on a plan to take the money, and then to ignore the settlement agreements and sue for more money. (Ardebili Decl., Ex. 11 at p. 47:15-17.) This case is not like Rich & Whillock, Inc. v. Ashton Development, Inc. (1984) 157 Cal.App.3d 1154 (Rich & Whillock), on which Plaintiffs rely. In Rich & Whillock, the defendant, after encouraging the plaintiff to complete its work on a project, refused to pay the balance of plaintiffs bill at a time plaintiff faced financial collapse. This led the plaintiffs vice-president to protest at the time he signed the release that he considered the proposal blackmail and that he was signing it only to survive. (Id. at p. 1157.) In finding economic coercion, Rich & Whillock considered defendants own creation of plaintiffs financial problems by encouraging plaintiffs expenditures, and plaintiffs strenuous protest at the time of signing. (Id. at pp. 1156, 1160-1161.) Neither of these factors is present here. (See Chan v. Lund (2010) 188 Cal.App.4th 1159, 1175 [distinguishing Rich & Whillock because defendant did not cause plaintiffs financial problems and because defendants were not aware of any claim at the time that plaintiff felt coerced].) Moreover, Rich & Whillock involved imminent bankruptcy for plaintiff if it did not sign the release. (Rich & Whillock, 157 Cal.App.3d at p. 1160.) Here, Plaintiffs claim that Hooper had several substantial debts which were coming due but do not provide evidence of imminent bankruptcy or financial ruin. In addition, in Rich & Whillock the defendants refusal was sudden and inconsistent with its earlier lack of complaints about the invoices. (Rich & Whillock, 157 Cal.App.3d at pp. 1156-1157.) Here, Plaintiffs asserted in oral argument that Defendants had stopped paying a month or two before the parties signed the release. Rich & Whillock is a far differentand strongercase than the current one for a showing of economic coercion. Moreover, the Court is unaware of other California cases decided in the forty years since Rich & Whillock that concluded that a release of claims may be set aside for economic coercion on grounds similar to those at issue here. Plaintiffs economic coercion claim attempts to stretch Rich & Whillock beyond the breaking point. If accepted, Plaintiffs argument would allow a party who has settled and released a claim to nevertheless go to a jury on the released claim by attempting to prove that plaintiff was in a difficult financial situation and defendant was unwilling to pay him money unless he would compromise his claim. Such a rule would undo the efficacy of many settlement agreements. The Court notes that it has sustained the objections to a number of statements in Hoopers declaration on the ground that they are inconsistent with the admissions he made in his deposition. But even if the Court considered the statements in the declaration to be admissible, they do not defeat summary judgment. These statements are (1) Defendant Stavropolous [sic] also said that if I didnt sign I would not get a penny and could sue (Hooper Decl. ¶ 34); (2) [a]lthough Rigas and Stavropolous [sic] pressured me to sign [&] (Hooper Decl. ¶ 35); (3) [&] Rigas attempted to force me into receiving less money in late December, 2020 (Hooper Decl. ¶ 42); (4) I would not have signed the December documents if Rigas did not withhold my rightful payment and threaten to give me nothing if I didnt sign them (Hooper Decl. ¶ 43); (5) [o]n or about December 24, 2020, Rigas and Stavropolous [sic] told me for the first time that he did not intend to abide by the Operating Agreement and pay me 33% of the profits from the California Deal. Rigas received approximately 78% of the profits from the California Deal (Hooper Decl. ¶ 45); (6) Rigas failed to disclose to me his contention that I did not have a right to 33 1/3% of the proceeds as stated in Mission N95s Operating Agreement until he attempted to force me to take less. (Hooper Decl. ¶ 49.) To the extent these paragraphs are meant to imply that Rigas made specific threats directly to Hooper, they conflict with his testimony that Rigas made no such statements to Hooper. (Ardebili Decl., Ex. 11 at p. 477:21-24.) If they are simply a restatement of Hoopers deposition testimony that he signed because he did not think Rigas or Stavropolous would otherwise give him any money, that is not sufficient to create a triable issue of fact on economic coercion for the reasons discussed above. For example, just before admitting at deposition that Rigas made no statements to him that coerced him to sign, Hooper testified: Q. You also testified a moment ago that Mr. Rigas somehow forced you to sign these four agreements. How so? A. Its not from his mouth, but I felt that if I didnt take those money, any money from them in the future would be very remotely possible. (Ardebili Decl., Ex. 11 at p. 477:15-20, emphasis added.) Hoopers concern that he would not get money from Rigas in the future, and Hoopers decision to take the $5.5 million and sue afterward (Ardebili Decl., Ex. 11 at p. 500:3-5) do not bring this case within Rich & Hillock or other principles of economic coercion. CEHs Claims Stavropoulos argues that CEH is bound by the releases in the December Agreements because it is an alter ego of Hooper and UW. The Mutual General Release binds the parties agents, assignees, and anyone else claiming by or through them, and applies broadly to the subject matter surrounding Mission. In addressing CEHs claim for unpaid storage fees and to explain why he changed invoices such that they would be issued by CEH rather than UW, Hooper testified that UW and CEH were both his companies. (UMF 35; Ardebili Decl., Ex. 13 at p. 331:3-7.) Hooper is the sole member, manager, and registered agent for service of process for CEH. (UMF 1.) Both CEH and UW use the exact same address. (UMF 2, 7.) Plaintiffs make no attempt in their opposition to address the argument that UW and CEH are bound by Hoopers releases. The Court therefore concludes that UW and CEH are bound by the general release in the December Agreements. Plaintiffs argue that CEHs claims survive because Stavropoulos personally leased a portion of CEHs warehouse space. That is not the basis of CEHs claims in this action, which involves storage of Missions merchandise, and therefore cannot not save CEHs claims. Because all of the claims in this case are covered by the general release in the December Agreements, the Court grants the Stavropouloss motion for summary judgment.

Ruling

SWEET ADELINE INC vs. TASTYWINGS INC

Aug 16, 2024 |C23-01054

C23-01054CASE NAME: SWEET ADELINE INC VS. TASTYWINGS INC*HEARING ON MOTION FOR DISCOVERY MOTION TO COMPEL DEFENDANT AND CROSS-COMPLAINANT TASTYWINGS INC.S RESPONSES TO INTERROGATORIES AND REQUESTS FORPRODUCTIONFILED BY:*TENTATIVE RULING:*Plaintiff/Cross-Defendants’ motion to compel responses to interrogatories and requests forproduction of documents is deemed moot; responses to the requested discovery have been served.Deficiencies in the newly served responses are not within the purview of the current motion and willnot be considered. While the court under circ*mstances such as these (where responses were servedafter the motion was filed) may award sanctions to the moving party, the court declines to do so inlight of counsel’s lack of candor in its 8/9/24 Reply to the court that responses were served bydefendant on August 5, 2024, four days prior to the date the Reply was submitted.

Ruling

WEICHOU HUANG VS XIANGJIE ZHOU, ET AL.

Aug 20, 2024 |18STCV05750

Case Number: 18STCV05750 Hearing Date: August 20, 2024 Dept: 54 Superior Court of California County of Los Angeles WEICHOU HUANG, derivatively on behalf of KANSAN INTERNATIONAL, INC., Plaintiff, Case No.: 18STCV05750 v. Tentative Ruling XIANGJIE ZHOU aka JOHNNY ZHOU, et al., Defendants. Hearing Date: August 20, 2024 Department 54, Judge Maurice Leiter Motion for New Trial Moving Party: Defendant Xiangjie Zhou Responding Party: Plaintiff Weichou Huang T/R: The Motion for New Trial is Denied. DEFENDANT TO NOTICE. If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. The Court considers the moving papers, opposition, and reply. Plaintiff Weichou Huang, suing derivatively on behalf of Kansan International, Inc., first sued Defendants on November 20, 2018. The operative second amended complaint was filed on November 9, 2021; it contains causes of action for breach of fiduciary duty, abuse of control, conversion, accounting, and aiding and abetting breach of fiduciary duty. The operative first amended cross complaint was filed by Xiangjie Zhou on March 4, 2019, and contains causes of action for breach of contract, negligent misrepresentation, intentional misrepresentation, and breach of fiduciary duty. The case proceeded to a bench trial on March 18, 2024, concluding on March 20, 2024. The parties opted not to have the trial recorded by a court reporter, and instead filed a joint settled witness statement. After receiving closing argument briefs, the Court issued its proposed statement of decision on May 9, 2024. It set forth the Courts determination as to the ultimate facts and material issues in dispute. Antelope Valley Groundwater Cases (2020) 59 Cal. App. 5th 241, 265-66. No party submitted objections under CRC 3.1590(g). The Court adopted its proposed statement of decision as its final statement of decision on May 30, 2024. Defendant Xiangjie Zhou moves for a new trial. A motion for new trial may be granted on any of the grounds in Code of Civil Procedure § 657. The Court in reviewing a motion for a new trial must be guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. Ryan v. Crown Castle NG Networks Inc. (2016) 6 Cal. App. 5th 775, 785. Defendant first argues that the damages awarded were excessive, speculative, and unsupported by the evidence. As Defendant states, to justify reversal a damages award must be so disproportionate to the injuries suffered that the result reached may be said to shock the conscience. (Daggett v. Atchison, Topeka & Santa Fe Railway Co. (1957) 48 Cal.2d 655, 666.) As set forth in the statement of decision, the evidence showed that Defendant breached his fiduciary duty to Kansan by diverting Kansans business customers to his own companies. The damages awarded are based on the amount of profit lost to Kansan from the diverted sales, and the $30,000 payment from Kansan to Z. Zhou. Plaintiff established that Defendants company Chinese International, Inc. (CII) sold $4,290,246.08 in seafood orders to Kansans business customers. The evidence showed a customary 20% profit margin in the wholesale seafood market, making the lost profits $858,049.20. The damages awarded were reasonable and based on the evidence in the case. Defendant next argues that the Court erred in not vacating the trial date, and that the Court failed to adjudicate Defendants cross complaint in Case No. 21STCV24309. These arguments are without merit. Prior to trial, after an inquiry from the Court, Defendant stated that they would proceed only on the cross complaint in Case No. 18STCV05750. Defendant is bound by that decision and may not make a different decision after the trial did not go his way. Nor did the Court err in declining to continue the trial until after Zhous criminal matter in China was concluded and Zhou could return to the United States. A party does not have an absolute right to attend a civil trial. (Province v. Center for Women's Health & Family Birth (1993) 20 Cal.App.4th 1673, 1686. A partys due process rights may be sufficiently protected where, as here, the party is represented by counsel. (Id., citing Helminski v. Ayerst Lab., A Div. of A.H.P.C. (6th Cir. 1985) 766 F.2d 208, 213.) Defendants other arguments are similarly unpersuasive, and largely reargue points raised earlier. As discussed in the statement of decision, the Court has subject matter jurisdiction. The agreements at issue were entered into in California; Kansan is a California corporation. CII conducted its business operations from Z. Zhous home in Fontana, California. The evidence showed that Z. Zhou is liable as an aider and abettor. And the evidence supports the derivative nature of the lawsuit. The motion is DENIED.

Ruling

DONGSOO CHANG VS ERIC FULLILOVE, ET AL.

Aug 21, 2024 |Echo Dawn Ryan |21STCV18508

Case Number: 21STCV18508 Hearing Date: August 21, 2024 Dept: 26 08/21/24 Dept. 26 Rolf Treu, Judge presiding DONGSOO CHANG v. ERIC FULLILOVE, et al. (21STCV18508) Counsel for Plaintiff/opposing party: Chad Biggins (Biggins Law Group) Counsel for Defendant/moving party: Lee T. Dicker (Leonard, Dicker & Schreiber LLP) MOTION FOR ATTORNEYS FEES (filed 07/03/24) TENTATIVE RULING The Court DENIES the Motion for Attorneys Fees filed by Defendant Eric Fullilove. I. BACKGROUND This action arises from the alleged the alleged breach of an agreement for the purchase and sale of a laundromat. On May 17, 2021, Plaintiff Dongsoo Chang (Plaintiff) filed a Complaint against Defendants Eric Fullilove, Yumi Ryoo, Rick Juarez, PWS, Inc., and Does 1 to 100, alleging causes of action for: (1) breach of contract; (2) breach of fiduciary duty; (3) negligence; and (4) fraud. On September 29, 2021, Plaintiff filed the operative First Amended Complaint (FAC) against Defendants alleging causes of action for: (1) breach of written contract; (2) breach of fiduciary duty; and (3) negligence. Only the first and fourth causes of action in the FAC were asserted against Defendant Eric Fullilove. The bench trial commenced on October 9, 2023. All parties rested on October 17, 2023. After the parties rested, Plaintiff moved to dismiss Defendant Yumi Ryoo from the fourth cause of action for fraud. All parties submitted closing briefs in lieu of closing arguments. The last brief, Plaintiffs reply brief, was filed and served on December 18, 2023. On February 26, 2024, after non-jury trial and taking the matter under submission, the Court issued a tentative statement of decision indicating that Plaintiff failed to carry his burden of proof on all claims and that judgment shall be entered in favor of Defendants and against Plaintiff. (02/26/24 Minute Order.) On May 21, 2024, the Court issued a final statement of decision and found that Plaintiff failed to carry his burden of proof on all claims and that judgment was to be entered in favor of Defendants. On June 24, 2024, judgment was entered in favor of Defendants and against Plaintiff. (06/24/24 Judgment.) Defendants were deemed the prevailing parties and the Court indicated that each is entitled to recover its costs, including possible attorneys fees, in an amount to be determined upon the filing of a memorandum of costs and/or post-trial motions. (06/24/24 Judgment.) On July 3, 2024, Defendant Eric Fullilove (Defendant) filed the instant Motion for Attorneys Fees, arguing that: · He is a prevailing party and is entitled to recover reasonable attorneys fees pursuant to the term of the contract and Civ. Code § 1717. · He was willing to, and did, participate in a mediation after litigation commenced. · Defendants attorneys fees are reasonable in amount and were necessary to the conduct defense of this litigation. · The number of hours extended by Defendants counsel is reasonable and were incurred due to Plaintiffs actions. · The hourly rates charged by Defendants counsel are reasonable and well within the range of prevailing rates. · Reasonable attorneys fees incurred in preparing the motion for attorneys fees are recoverable. In opposition, Plaintiff argues that: · Defendant does not have a right to recover attorneys fees because he failed to engage in pre-litigation mediation as he neither timely participated nor acted in good faith in selecting a mediator or the mediation process. · The claimed time spent is too vague to be adequately opposed. · There is no apportionment for the different claims. · Discovery and supplemental briefing is appropriate if the Court is inclined to grant the motion. On reply, Defendant argues that: · Defendant did not reject or fail to participate in a validly requested mediation. · Attorneys time spent is accurate and compensable. · There is no need to apportion between the contract and tort claims. · If additional time is needed and the billing statements are desired, Defendant is willing to provide them and to delay the decision on the instant motion. II. ANALYSIS A. Legal Standard for Motion for Attorneys Fees In any action on a contract, where the contract specifically provides that attorneys fees and costs, which are incurred to enforce that contract, shall be awarded to either one of the parties or to the prevailing party, then the party who is determined to be the prevailing party on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorneys fees in addition to other costs. (Civ. Code, § 1717, subd. (a).) The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract . . . whether or not the suit proceeds to final judgment. (Civ. Code, § 1717, subd. (b)(1).) [T]he party prevailing on the contract shall be the party who received a greater relief in the action on the contract. (Civ. Code, § 1717, subd. (b)(1).) A prevailing party is defined as a defendant as against those plaintiffs who do not recover any relief against that defendant. (Code Civ. Proc., § 1032, subd. (a)(4).) An award of attorneys fees should compensate for all time spent, including time spent on fee-related issues. (Downey Cares v. Downey Community Development Com. (1987) 196 Cal.App.3d 983, 997.) It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion. (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623.) The fee setting inquiry in California ordinarily begins with the lodestar [method], i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) The reasonable hourly rate is that prevailing in the community for similar work. (Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004.) [A] computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys fee award. (Margolin v. Regional Planning Com. (1982) 134 Cal.App.3d 999, 1004.) The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided. (See Serrano v. Priest (1977) 20 Cal.3d 25, 49 [discussing factors relevant to proper attorneys fees award].) Such an approach anchors the trial courts analysis to an objective determination of the value of the attorneys services, ensuring that the amount awarded is not arbitrary. (Id. at p. 48, fn. 23.) The factors considered in determining the modification of the lodestar include (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award. (Mountjoy v. Bank of Am. (2016) 245 Cal.App.4th 266, 271.) [T]he burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 98.) [A]n award of attorney fees may be based on counsels declarations, without production of detailed time records. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1365.) Where a party is challenging the reasonableness of attorneys fees as excessive that party must attack itemized billing with evidence that the fees claimed were not appropriate or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 563-564.) [I]t is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence and arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. (Id. at p. 564.) It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096.) A court should defer to the winning lawyers professional judgment as to the tasks completed in an action because he won, and might not have, had he been more of a slacker. (Moreno v. City of Sacramento (9th Cir. 2008) 534 F.3d 1106, 1111.) A losing party cannot litigate tenaciously then be heard to complain about the time spent or tasks performed by the prevailing party in response. (City of Riverside v. Rivera (1986) 477 U.S. 561, 580, fn.11.) Where a defendant does not produce evidence contradicting the reasonableness of counsels hourly rates, the Court will deem an attorneys hourly rate as reasonable. (Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 473.) B. Evidentiary Objections The Court SUSTAINS Plaintiffs evidentiary objection number 1 (hearsay and mediation privilege) to the declaration of Lee Dicker in support of the motion and OVERRULES Plaintiffs evidentiary objections numbers 2, 3, and 4 thereto. C. The Right to Recover Attorneys Fees Initially, the Court notes that Plaintiff does not dispute that Defendant is a prevailing party. Plaintiff contends that Defendant is prohibited from recovering attorneys fees because he did not comply with Paragraph 24 of the Asset Purchase Agreement (the Contract) between the parties, which governs mediation between the parties. A party must satisfy a contractual condition precedent concerning mediation for the recovery of attorneys fees. (Leamon v. Krajkiewcz (2003) 107 Cal.App.4th 424, 431.) To refuse is to decline the acceptance of something offered, or to fail to comply with some requirement. (Frei v. Davey (2004) 124 Cal.App.4th 1506, 1513.) The words of a contract are to be understood in their ordinary and popular sense. (Id. at p. 1518.) The Mediation Clause in the Contract Paragraph 24 of the Contract, which is attached as Exhibit A to the declaration of Defendants counsel, Lee T. Dicker (Dicker), in support of the motion states as follows: Except as reasonably necessary for a party to seek equitable relief from a Court . . . Buyer and Seller shall mediate any dispute or claim between them arising out of this Agreement or any resulting relationship or transaction between such parties. Either party may demand mediation by notice to the other party, which notice shall state the nature of the dispute to resolved. The parties shall agree upon a mediator not later than the twentieth day after such notice is given. If a mediator cannot be agreed upon, the matter shall be submitted to the American Arbitration Association . . . for the appointment of a mediator . . . [and] [s]hould either party fail to participate timely and in good faith in the selection process for the mediator, or in the mediation process, such party will be deemed to have refused mediation, and that party shall not be entitled to attorney fees that might be otherwise available to it in any subsequent court action or arbitration. (Dicker Decl., ¶ 3; Ex. A at ¶ 24.) The Contract was entered into between Plaintiff and Defendant. (Dicker Decl., ¶ 3; Ex. A.) Plaintiff relies on Exhibit B, which is attached to Mr. Dickers declaration, for the proposition that Defendant refused to engage in mediation. Plaintiffs counsel, Chad Biggins (Biggins), declares that the defense failed to act in good faith. (Biggins Decl., ¶ 3.) Mr. Biggins states that the contract contemplates pre-lawsuit mediation so the participation in mediation two years after the case was filed is irrelevant, and Defendant did not demand mediation at any time. (Biggins Decl., ¶ 3.) On April 26, 2021, Mr. Biggins e-mailed Defendant with a request for mediation concerning Plaintiffs claims that Defendant overstated his income which caused Plaintiff to pay more than the value of the laundromat. (Dicker Decl., Ex. B.) Mr. Biggins informed Defendant that he had been retained by Plaintiff regarding the sale of the laundromat. (Id.) Defendant responded via e-mail on such date stating that it was difficult to respond based on the information in counsels e-mail and that he needed more time to research and talk to Defendant PWS, Inc. before responding, and asked for a May 5th date to respond to which Mr. Biggins agreed. (Id.) Mr. Biggins then e-mailed Defendant asking for evidence supporting the claimed revenues on April 26, 2021. (Id.) On May 6, 2021, Mr. Biggins sent an e-mail to Defendant asking Defendant to advise Mr. Biggins of his position. (Id.) On May 6, 2021, Defendant responded to such e-mail indicating that neither the agent for sale has heard from Plaintiff about the issue and that he had doubts as to whether Mr. Biggins actually represented Plaintiff. (Id.) Defendant then stated that because nothing Mr. Biggins indicated appear[ed] to be true[,] [Defendant] [felt] no need to respond other than what [he] [had] just indicated. (Id.) On May 17, 2021, Mr. Biggins sent an e-mail to Defendant stating that I take it from your response that you are unwilling to mediate so I will proceed accordingly. (Id.) Defendant did not respond to such e-mail. (Biggins Decl., ¶ 2.) Analysis as to the Issue of Defendants Refusal to Engage in Mediation The Court finds that Plaintiffs argument that Defendant failed to engage in mediation efforts is persuasive. Based on the series of e-mails before the Court, it appears that Defendant had doubts as to whether Mr. Biggins represented Plaintiffs interests and therefore had some security concerns as to providing his financial information to an unknown representative. However, here, the e-mails set forth the name, address, and phone number of Mr. Bigginss law firm. Thus, by signing the Contract, Defendant was bound to decide on a mediator with Plaintiff within 20 days notice of a mediation request. Defendant, however, refused to provide an affirmative answer as to Mr. Biggins request to mediate. The Court notes that the request for mediation was clear and unequivocal and set forth a firm deadline for Defendant to provide a response. Thus, Defendant did not timely and in good faith participate in the mediation selection process pursuant to Paragraph 24 of the Contract. Plaintiffs counsel demanded mediation on April 26, 2021, to which Defendant never provided an unequivocal response within 20 days as required by the Contract and, in fact, Defendant indicated that he did not feel the need to respond to such a request. (Dickens, ¶ 3; Ex. B.) The Court reminds Defendant that there is a public policy of promoting mediation as a preferable alternative to judicial proceedings . . . . (Leamon, supra, 107 Cal.App.4th 424, 433.) Given that Defendant failed to comply with a contractual condition precedent, Defendant dispensed with his right to recover contractual attorneys fees. D. Apportionment of Claims While the issue of Defendants failure to comply with a condition precedent is dispositive of the motion, the Court will address Plaintiffs argument as to apportionment of claims. [P]arties may validly agree that the prevailing party will be awarded attorney fees incurred in any litigation between themselves, whether such litigation sounds in tort or in contract. (Santisas v. Goodin (1998) 17 Cal.4th 599, 608.) Had Defendant satisfied the condition precedent concerning mediation, the Court would have rejected Plaintiffs argument as to apportionment of claims and would have found that fees do not need to be apportioned based on the contract and tort claims. Here, the attorneys fee provision in the Contract is broad and indicates that the prevailing party shall be entitled to reasonable attorneys fees and costs [i]n any action, proceeding, or arbitration between [Plaintiff] and [Defendant] arising out of [the [Contract] . . . except as provided in [Paragraph 24]. (Dicker Decl. ¶ 3, Ex. A at ¶ 27.) E. Reasonableness of Fees While it is not necessary to address due to Defendants failure to satisfy the condition precedent necessary to recover fees, the Court will address the reasonableness of Defendants claimed fees. Defendant requests $240,000.00 in fees. (Dickens Decl., ¶ 10.) Counsels hourly rate is $600.00 per hour. (Dickens Decl., ¶ 2.) The parties agree that no invoices are attached to the motion and that the invoices were provided separately to Plaintiffs counsel upon request for proof of payment for depositions and other costs. (Biggins Decl., ¶ 5; Ex. 1.) Such invoices are fully redacted. (Id.) Had Defendant met the condition precedent concerning mediation, the Court would have been unable to grant the motion at the present time due to the lack of unredacted billing records. While billing records are not required, given the substantial amount of attorneys fees requested, the Court would have continued the motion to allow for the presentation of unredacted billing records and supplemental briefing. However, as indicated above, Defendants failure to engage in a timely and good faith initiation of the mediation process precludes his recovery of attorneys fees. Accordingly, the Court DENIES Defendants Motion for Attorneys Fees. III. DISPOSITION Based on the foregoing, the Court DENIES Defendants Motion for Attorneys Fees.

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