Preview
- CM 181 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY John T. Maxwell, Esq. (S.B. #106826) - DUMMIT, BUCHHOLZ & TRAPP 11755 Wilshire Blvd., 15th Floor Los Angeles, California 90025 TELEPHONE NO.: (3 I 0) 4 79-0944 FAXNO.(OpUooal)(3]0) 3]2-3836 E-MAIL ADDRESS (Optional): ATTORNEY FOR (Name):Defendant, Halsen Healthcare, LLC SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CRUZ STREET ADDRESS· 70 I Ocean Street, Room 110 MAILING ADDRESS: Santa Cruz, 95060 CITY AND ZIP CODE· BRANCH NAME- SANTA CRUZ BRANCH CASE NUMBER: PLAINTIFF/PETITIONER: VRC,LLC 21CV0l 783 DEFENDANT/RESPONDENT: HALSEN HEAL THCARE, LLC DEPT.: 5 JUDICIAL OFFICER: NOTICE OF TERMINATION OR MODIFICATION OF STAY Timothy Volkrnarm To the court and all parties: 1. A Notice of Stay of Proceedings was filed in this matter on (date): 2. Declarant named below is a. D the party W the attorney for the partywho requested or caused the stay. Please see Attachments 1, 2 & 3. b. D other (describe): 3. W The stay described in the above referenced Notice of Stay of Proceedings a. [ZJ has been vacated by an order of another court. (Attach a copy of the court order.) b. D is no longer in effect. 4. D The stay has been modified (describe): 5. The stay has been vacated, is no longer in effecl, or has been modified a. W with regard to all parties. b. D with regard to the following parties (specify by name and party designation): I declare under penalty of perjury under the laws of the State of California that the foregoing is r'ue and cor'.e,cJ,/"-) Date: September 27, 2022 John T. Maxwell, Esq. (TYPE OR PRINT NAME OF DECLARANT) ► Pae1of2 Form Adopted for Mandatory Use Cal. Rules of Court, rule 3.650 NOTICE OF TERMINATION OR MODIFICATION OF STAY Judicial Council of California www.courtinfo.ca.gov CM-181[Rev. January 1, 2007] ATTACHMENT #1 Notice of the Occurrence of the Effective Date 1 Debra I. Grassgreen (CA Bar No. 169978) Maxim B. Litvak (CA Bar No. 215852) 2 Steven W. Golden (admitted pro hac vice) PACHULSKI STANG ZIEHL & JONES LLP 3 One Market Plaza, Spear Tower, 40th Floor San Francisco, CA 94105-1020 4 Telephone: 415.263.7000 Facsimile: 415.263.7010 5 E-mail: dgrassgreen@pszjlaw.com mlitvak@pszjlaw.com 6 sgolden@pszjlaw.com Attorneys for Debtors and Debtors in Possession 7 8 UNITED STATES BANKRUPTCY COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION In re: Case No. 21-51477 11 P ACHULSKI S TANG Z IEHL & J O NES LLP WATSONVILLE HOSPITAL Chapter 11 12 CORPORATION, et al., (Jointly Administered) SAN F RA NCISCO , CAL IFOR NI A 13 Debtors.1 NOTICE OF THE OCCURRENCE OF THE ATTOR NE YS A T L AW EFFECTIVE DATE FOR MODIFIED FIRST 14 AMENDED PLAN OF LIQUIDATION 15 PROPOSED BY THE DEBTORS AND OFFICIAL COMMITTEE OF UNSECURED 16 CREDITORS 17 Judge: Honorable M. Elaine Hammond 18 Ref. Docket Nos. 616, 647 19 20 PLEASE TAKE NOTICE OF THE FOLLOWING: 21 1. On July 28, 2022, the Honorable M. Elaine Hammond, United States Bankruptcy Judge 22 of the United States Bankruptcy Court for the Northern District of California (the “Court”) entered the 23 Order Confirming Modified First Amended Plan of Liquidation Proposed by the Debtors and Official 24 Committee of Unsecured Creditors [Docket No. 647] (the “Confirmation Order”), confirming the 25 Modified First Amended Plan of Liquidation Proposed by the Debtors and Official Committee of 26 27 1 The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identificationnumber, are: Watsonville Hospital Corporation (4113); Watsonville Healthcare Management, LLC (4168); Watsonville Hospital Holdings, Inc. (1118); and Halsen Healthcare, LLC. The Debtors’ business address is 75 Nielson Street, Watsonville, CA 28 95076. Case:DOCS_DE:240484.1 21-51477 92381/002 Doc# 746 Filed: 09/09/22 Entered: 09/09/22 10:29:55 Page 1 of 3 1 Unsecured Creditors [Docket No. 616] (the “Plan”)2 of Watsonville Hospital Corporation and its 2 debtor affiliates, as debtors and debtors in possession (collectively, the “Debtors”). 3 2. Each of the terms and conditions to consummate the Plan, including those set forth in 4 Article IX(A) of the Plan, have been satisfied. Accordingly, the Effective Date of the Plan occurred 5 on September 9, 2022. 6 3. In accordance with the Confirmation Order, the Plan and its provisions, including, 7 without limitation, all of the settlement, release, exculpation, injunction, and related provisions set 8 forth in Articles X and XI of the Plan, are effective and binding on the Debtors, any holder of a Claim 9 or Interest in the Debtors, and such holder’s respective successors and assigns, whether or not the 10 Claim or the Interest of such holder is Impaired under the Plan, and whether or not such holder voted 11 to accept the Plan. P ACHULSKI S TANG Z IEHL & J O NES LLP 12 4. Unless otherwise provided for in the Plan, the Confirmation Order, or any other SAN F RA NCISCO , CAL IFOR NI A 13 applicable order of the Court, all Administrative Expense Claims must be Filed on or before October ATTOR NE YS A T L AW 14 24, 2022 (the “Administrative Claims Bar Date”), which is forty-five days after the Effective Date, 15 and served on the Liquidation Trustee and such other Entities who are designated by the Bankruptcy 16 Rules, the Confirmation Order, or other order of the Court. The failure to File a request for payment 17 of an Administrative Expense Claim on or before the Administrative Claims Bar Date shall 18 result in such Administrative Expense Claim being forever Disallowed, barred, and expunged 19 in its entirety without further notice to any party, or action, approval or order of the Court. 20 5. Notwithstanding the entry of the Confirmation Order, the occurrence of the Effective 21 Date, or the closing of any Chapter 11 Case, and without limiting any other retention of jurisdiction 22 set forth in the Confirmation Order, pursuant to sections 105 and 1142 of the Bankruptcy Code, the 23 Court, except as otherwise explicitly provided in the Plan or Confirmation Order, shall retain 24 jurisdiction over all matters arising out of, and related to, the Chapter 11 Cases to the fullest extent 25 permitted by law, including, but not limited to, jurisdiction over the matters set forth in Article XIII 26 of the Plan. 27 28 2 Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Plan. Case:DOCS_DE:240484.1 21-51477 92381/002 Doc# 746 Filed: 09/09/22 Entered: 09/09/22 10:29:55 Page 2 of 3 1 6. Copies of the Confirmation Order, the Plan, and all documents filed in the Chapter 11 2 Cases can be viewed and/or obtained (i) by accessing the Court’s website at 3 https://www.canb.uscourts.gov; or (ii) free of charge from the Debtors’ notice and claims agent, 4 Stretto, at https://cases.stretto.com/WatsonvilleHospital. 5 Dated: September 9, 2022 PACHULSKI STANG ZIEHL & JONES LLP 6 By: /s/ Debra I. Grassgreen 7 Debra I. Grassgreen Maxim B. Litvak 8 Steven W. Golden 9 Attorneys for Debtors and Debtors in Possession 10 11 P ACHULSKI S TANG Z IEHL & J O NES LLP 12 SAN F RA NCISCO , CAL IFOR NI A 13 ATTOR NE YS A T L AW 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case:DOCS_DE:240484.1 21-51477 92381/002 Doc# 746 Filed: 09/09/22 Entered: 09/09/22 10:29:55 Page 3 of 3 ATTACHMENT #2 Order Confirming Entered on Docket July 28, 2022 EDWARD J. EMMONS, CLERK U.S. BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA 1 Debra I. Grassgreen (CA Bar No. 169978) Maxim B. Litvak (CA Bar No. 215852) 2 Steven W. Golden (admitted pro hac vice) The following constitutes the order of the Court. PACHULSKI STANG ZIEHL & JONES LLP Signed: July 28, 2022 3 One Market Plaza, Spear Tower, 40th Floor San Francisco, CA 94105-1020 4 Telephone: 415.263.7000 Facsimile: 415.263.7010 5 E-mail: dgrassgreen@pszjlaw.com _________________________________________________ mlitvak@pszjlaw.com M. Elaine Hammond 6 sgolden@pszjlaw.com U.S. Bankruptcy Judge Attorneys for Debtors and Debtors in 7 Possession 8 UNITED STATES BANKRUPTCY COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 In re: Case No. 21-51477 P ACHULSKI S TANG Z IEHL & J O NES LLP 12 WATSONVILLE HOSPITAL Chapter 11 ATTOR NE YS A T L AW SAN F RA NCISCO , CAL IFOR NI A 13 CORPORATION, et al., (Jointly Administered) 14 Debtors.1 ORDER CONFIRMING MODIFIED FIRST AMENDED JOINT CHAPTER 11 15 PLAN OF LIQUIDATION PROPOSED BY THE DEBTORS AND OFFICIAL 16 COMMITTEE OF UNSECURED CREDITORS 17 Re: Docket No. 616 18 Date: 07/27/22 19 Time: 10:00 a.m. Judge: Hon. M. Elaine Hammond 20 The above-captioned debtors and debtors-in-possession (collectively, the “Debtors”) and the 21 Official Committee of Unsecured Creditors (the “Committee” and, together with the Debtors, the 22 “Plan Proponents”) having proposed the Modified First Amended Joint Chapter 11 Plan of Liquidation 23 Proposed by the Debtors and Official Committee of Unsecured Creditors [Docket No. 616] (together 24 with all exhibits thereto, as may be amended, modified, or supplemented, the “Plan”);2 the Court 25 26 1 The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identificationnumber, are: Watsonville Hospital Corporation (4113); Watsonville Healthcare Management, LLC (4168); Watsonville Hospital 27 Holdings, Inc. (1118); and Halsen Healthcare, LLC. The Debtors’ business address is 75 Nielson Street, Watsonville, CA 95076. 28 2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Plan. Case: 21-51477 Doc# 647 Filed: 07/28/22 Entered: 07/28/22 16:19:30 Page 1 of 29 1 having conducted a hearing to consider confirmation (“Confirmation”) of the Plan on July 27, 2022 2 (the “Confirmation Hearing”) and having considered (i) the (a) Tabulation Declaration in Connection 3 with Confirmation of Modified First Amended Joint Chapter 11 Plan of Liquidation Proposed by the 4 Debtors and Official Committee of Unsecured Creditors [Docket No. 618] (the “Voting Declaration”); 5 (b) Declaration of Jeremy Rosenthal in Support of Confirmation of the Modified First Amended Joint 6 Chapter 11 Plan of Liquidation Proposed by the Debtors and Official Committee of Unsecured 7 Creditors [Docket No. 619] (the “Rosenthal Declaration”); and (c) Declaration of Cecilia Montalvo 8 in Support of Confirmation of the Modified First Amended Joint Chapter 11 Plan of Liquidation 9 Proposed by the Debtors and Official Committee of Unsecured Creditors [Docket No. 624] (the 10 “Montalvo Declaration”); (ii) the Plan Proponents’ Memorandum of Law in Support of Order 11 Confirming the First Amended Joint Chapter 11 Plan of Liquidation Proposed by the Debtors and P ACHULSKI S TANG Z IEHL & J O NES LLP 12 Official Committee of Unsecured Creditors [Docket No. 623] (the “Confirmation Brief”); (iii) the ATTOR NE YS A T L AW SAN F RA NCISCO , CAL IFOR NI A 13 Objection and Reservation of Rights of the United States Trustee to Confirmation of Joint Plan of 14 Reorganization [Docket No. 611] (the “UST Objection”); and (iv) the arguments of counsel presented 15 at the Confirmation Hearing; it appearing to the Court that notice of the Confirmation Hearing having 16 been adequate and appropriate as to all parties affected or to be affected by the Plan and the 17 transactions contemplated thereby, and the legal and factual bases set forth in the documents filed in 18 support of Confirmation and other evidence presented at the Confirmation Hearing having established 19 just cause for the relief granted herein; and the Court having considered any and all objections to the 20 Plan and its Confirmation and all such objections being consensually resolved or withdrawn, or 21 otherwise addressed as set forth herein and on the record at the Confirmation Hearing; and after due 22 deliberation thereon and good cause appearing therefor, the Court makes and issues the following 23 findings of fact and conclusions of law, and orders: 24 FINDINGS OF FACT AND CONCLUSIONS OF LAW 25 IT IS DETERMINED, FOUND, ADJUDGED, DECREED, AND ORDERED THAT: 26 A. Findings and Conclusions. 27 1. The findings and conclusions set forth herein, in the recitals, and in the record of the 28 Confirmation Hearing constitute the Court’s findings of fact and conclusions of law under Rule 52 of 2 Case: 21-51477 Doc# 647 Filed: 07/28/22 Entered: 07/28/22 16:19:30 Page 2 of 29 1 the Federal Rules of Civil Procedure, as made applicable herein by Bankruptcy Rules 7052 and 9014. 2 To the extent any of the following conclusions of law constitute findings of fact, or vice versa, they 3 are adopted as such. 4 B. Jurisdiction, Venue, and Core Proceeding. 5 2. The Court has jurisdiction over the Debtors’ Chapter 11 Cases pursuant to section 1334 6 of title 28 of the United States Code. The Court has exclusive jurisdiction to determine whether the 7 Plan complies with the applicable provisions of the Bankruptcy Code and should be confirmed. Venue 8 is proper in this district pursuant to sections 1408 and 1409 of title 28 of the United States Code. 9 Confirmation of the Plan is a core proceeding within the meaning of section 157(b)(2) of title 28 of 10 the United States Code. 11 C. Eligibility for Relief. P ACHULSKI S TANG Z IEHL & J O NES LLP 12 3. The Debtors were and are entities eligible for relief under section 109 of the Bankruptcy ATTOR NE YS A T L AW SAN F RA NCISCO , CAL IFOR NI A 13 Code. 14 D. Commencement and Administration of the Debtors’ Chapter 11 Cases. 15 4. On the Petition Date, the Debtors each commenced a voluntary case under chapter 11 16 of the Bankruptcy Code. The cases have been jointly administered pursuant to order entered on 17 December 6, 2021 [Docket No. 24]. Since the Petition Date, the Debtors have operated their 18 businesses and managed their properties as debtors in possession pursuant to sections 1107(a) and 19 1108 of the Bankruptcy Code. No trustee has been appointed in these Chapter 11 Cases. 20 5. On December 22, 2021, the Office of the United States Trustee appointed the 21 Committee pursuant to section 1102 of the Bankruptcy Code [Docket No. 97]. 22 E. Burden of Proof – Confirmation of the Plan. 23 6. The Debtors and the Committee, as co-proponents of the Plan, have met their burden 24 of proving the applicable elements of sections 1129(a) and 1129(b) of the Bankruptcy Code by a 25 preponderance of the evidence, which is the applicable evidentiary standard for Confirmation. In 26 addition, and to the extent applicable, the Plan is confirmable under the clear and convincing 27 evidentiary standard. 28 3 Case: 21-51477 Doc# 647 Filed: 07/28/22 Entered: 07/28/22 16:19:30 Page 3 of 29 1 F. Notice. 2 7. Due, adequate, and sufficient notice of the Plan and the Confirmation Hearing, together 3 with all deadlines for voting to accept or reject the Plan as well as objecting to the Plan and all other 4 materials distributed by the Plan Proponents in connection with the Confirmation in compliance with 5 the Bankruptcy Rules, has been provided to all necessary parties. See Docket Nos. 564, 594, and 604. 6 Such notice was adequate and sufficient under the facts and circ*mstances of these Chapter 11 Cases 7 pursuant to section 1128 of the Bankruptcy Code, Bankruptcy Rules 2002 and 3020, and other 8 applicable law and rules, and no other or further notice is or shall be required. 9 G. Ballots. 10 8. The only classes of Claims entitled to vote to accept or reject the Plan are Class 3 (Other 11 MPT Obligations) and Class 4 (General Unsecured Claims) (collectively, the “Voting Classes”). P ACHULSKI S TANG Z IEHL & J O NES LLP 12 9. As approved by the Order (I) Approving Disclosure Statement; (II) Establishing ATTOR NE YS A T L AW SAN F RA NCISCO , CAL IFOR NI A 13 Procedures for the Solicitation and Tabulation of Votes on Plan; (III) Scheduling Hearing on 14 Confirmation of Plan; and (IV) Approving Related Matters [Docket No. 557] (the “Solicitation 15 Procedures Order”), the ballots that the Plan Proponents used to solicit votes to accept or reject the 16 Plan from Holders of Claims in the Voting Classes adequately addressed the particular needs of these 17 Chapter 11 Cases and were appropriate for Holders of Claims in the Voting Classes to vote to accept 18 or reject the Plan. 19 H. Solicitation. 20 10. As described in the Voting Declaration, the solicitation of votes on the Plan complied 21 with the solicitation procedures set forth in the Solicitation Procedures Order (the “Solicitation 22 Procedures”), was appropriate and satisfactory based upon the circ*mstances of these Chapter 11 23 Cases, and was in compliance with the provisions of the Bankruptcy Code, the Bankruptcy Rules, the 24 Bankruptcy Local Rules for the Northern District of California (the “Bankruptcy Local Rules”), and 25 any other applicable rules, laws, and regulations, including any applicable registration requirements 26 and exemptions from the registration requirements under the Securities Act, and any exemptions from 27 registration under “Blue Sky” requirements. 28 4 Case: 21-51477 Doc# 647 Filed: 07/28/22 Entered: 07/28/22 16:19:30 Page 4 of 29 1 11. Following entry of the Solicitation Procedures Order, the Plan (in the form at docket 2 no. 543), the Disclosure Statement, the Confirmation Hearing Notice, and the ballots (collectively with 3 such other materials identified in the Joint Motion for an Order (I) Approving Disclosure Statement; 4 (II) Establishing Procedures for the Solicitation and Tabulation of Votes on Plan; (III) Scheduling 5 Hearing on Confirmation of Plan; and (IV) Approving Related Matters [Docket No. 474], the 6 “Solicitation Packages”) were transmitted and served, including to all Holders of Claims in the Voting 7 Classes, in compliance with the Bankruptcy Code, including sections 1125 and 1126 thereof; the 8 Bankruptcy Rules, including Bankruptcy Rules 3017 and 3018; the Bankruptcy Local Rules, including 9 Bankruptcy Local Rule 3017-1; the Solicitation Procedures Order; and any applicable nonbankruptcy 10 law. Transmission and service of the Solicitation Packages and the Confirmation Hearing Notice were 11 timely, adequate, and sufficient under the facts and circ*mstances of these Chapter 11 Cases. No P ACHULSKI S TANG Z IEHL & J O NES LLP 12 further notice is required. ATTOR NE YS A T L AW SAN F RA NCISCO , CAL IFOR NI A 13 12. As set forth in the Voting Declaration, the Solicitation Packages were distributed to 14 Holders of Claims in the Voting Classes that held a Claim as of the Voting Record Date of June 14, 15 2022. 16 13. As approved by the Solicitation Procedures Order, the period during which the Plan 17 Proponents solicited acceptances or rejections to the Plan was a reasonable and sufficient period of 18 time for Holders of Claims in the Voting Classes to make an informed decision to accept or reject the 19 Plan. 20 14. Under section 1126(f) of the Bankruptcy Code, Holders of Claims in Class 1 (Other 21 Priority Claims) and Class 2 (Other Secured Claims), are Unimpaired and conclusively presumed to 22 have accepted the Plan. 23 15. Pursuant to Bankruptcy Rule 3017(d), the Plan Proponents are not required to transmit 24 a Solicitation Package to the non-voting Classes. Holders of Claims in Class 5 (Intercompany Claims) 25 and Class 6 (Equity Interests in the Debtors) are deemed to reject the Plan. 26 I. Voting. 27 16. As evidenced by the Voting Declaration and approved by the Solicitation Procedures 28 Order, votes to accept or reject the Plan have been solicited and tabulated fairly, in good faith, and in 5 Case: 21-51477 Doc# 647 Filed: 07/28/22 Entered: 07/28/22 16:19:30 Page 5 of 29 1 compliance with the Bankruptcy Code, the Bankruptcy Rules, the Bankruptcy Local Rules, the 2 Disclosure Statement, and any applicable nonbankruptcy law, rule, or regulation. 3 J. Plan Supplement. 4 17. On July 8, 2022, the Debtors filed the Plan Supplement with the Court. The Plan 5 Supplement complies with the Bankruptcy Code and the terms of the Plan, and the filing and notice 6 of such documents was good and proper in accordance with the Solicitation Procedures Order, the 7 Bankruptcy Code, the Bankruptcy Rules, and the Bankruptcy Local Rules, and no other or further 8 notice is required. All documents included in the Plan Supplement are integral to, part of, and 9 incorporated by reference into the Plan. Subject to the terms of the Plan and the Bankruptcy Code, 10 and only consistent therewith, the Plan Proponents reserve the right to alter, amend, update, or modify 11 the documents included in the Plan Supplement before the Effective Date, provided that no such P ACHULSKI S TANG Z IEHL & J O NES LLP 12 alteration, amendment, update, or modification of such documents has a materially adverse effect on ATTOR NE YS A T L AW SAN F RA NCISCO , CAL IFOR NI A 13 any of the Debtors’ creditors or interest holders, except as to any such creditor or interest holder who 14 affirmatively agrees to the same or except as approved by the Court. All creditors and parties in 15 interest were provided due, adequate, and sufficient notice of the Plan Supplement. No other or further 16 notice is or will be required with respect to the Plan Supplement. 17 K. Compliance with Bankruptcy Rule 3016. 18 18. In accordance with Bankruptcy Rule 3016(a), the Plan is dated and identifies the 19 Debtors and the Committee as co-proponents of the Plan. The Plan Proponents appropriately filed the 20 Disclosure Statement and the Plan with this Court, thereby satisfying Bankruptcy Rule 3016(b). The 21 injunction provisions of the Plan are set forth in bold and with specific and conspicuous language, 22 thereby complying with Bankruptcy Rule 3016(c). 23 L. Objections Overruled. 24 19. Any resolutions of objections to Confirmation explained on the record at the 25 Confirmation Hearing are hereby incorporated by reference. All remaining unresolved objections 26 (including the UST Objection), statements, informal objections, and reservations of rights, if any, 27 related to the Plan, are overruled on the merits, with prejudice. 28 6 Case: 21-51477 Doc# 647 Filed: 07/28/22 Entered: 07/28/22 16:19:30 Page 6 of 29 1 M. Compliance with Bankruptcy Code Requirements—Section 1129(a)(1). 2 20. The Plan complies with all applicable provisions of the Bankruptcy Code as required 3 by section 1129(a)(1) of the Bankruptcy Code. 4 Proper Classification—Sections 1122 and 1123. 5 21. The Plan satisfies the requirements of sections 1122(a) and 1123(a)(1) of the 6 Bankruptcy Code. Article III of the Plan provides for the separate classification of Claims and Equity 7 Interests into six (6) Classes. Valid business, factual, and legal reasons exist for the separate 8 classification of such Classes of Claims and Equity Interests. The classifications reflect no improper 9 purpose and do not unfairly discriminate between, or among, Holders of Claims or Equity Interests. 10 Each Class of Claims and Equity Interests contains only Claims or Equity Interests that are 11 substantially similar to the other Claims or Equity Interests within that Class. P ACHULSKI S TANG Z IEHL & J O NES LLP 12 Specified Unimpaired Classes—Section 1123(a)(2). ATTOR NE YS A T L AW SAN F RA NCISCO , CAL IFOR NI A 13 22. The Plan satisfies the requirements of section 1123(a)(2) of the Bankruptcy Code. 14 Article III of the Plan specifies that Claims and Equity Interests, as applicable, in the following Classes 15 (the “Unimpaired Classes”) are Unimpaired under the Plan within the meaning of section 1124 of the 16 Bankruptcy Code: 17 Class Designation 18 1 Other Priority Claims 2 Other Secured Claims 19 20 23. Additionally, Article II of the Plan specifies that Allowed Administrative Expense 21 Claims, Professional Fee Claims, Priority Tax Claims, and DIP Obligations will be satisfied in 22 accordance with the terms of the Plan (unless otherwise agreed by the Debtors and the relevant 23 Holder(s) in accordance with the terms of the Plan), although these Claims are not classified under the 24 Plan. The DIP Obligations of the DIP Lender and any and all Liens and security interests of the DIP 25 Lender shall automatically be deemed satisfied and released upon the Effective Date in accordance 26 with the terms of the DIP Order and Sale Approval Order, including, for the avoidance of doubt, upon 27 (i) receipt of the Direct MPT Payment and (ii) payment of the MPT Excess Sale Proceeds (if any) and 28 the MPT Post-Closing Excess Cash (if any) consistent with the terms of this Plan; provided, however, 7 Case: 21-51477 Doc# 647 Filed: 07/28/22 Entered: 07/28/22 16:19:30 Page 7 of 29 1 that the DIP Lender shall be entitled to retain and apply as it determines any Cash security or other 2 deposit held by the MPT Parties on account of the MPT Prepetition Obligations. 3 Specified Treatment of Impaired Classes—Section 1123(a)(3). 4 24. The Plan satisfies the requirements of section 1123(a)(3) of the Bankruptcy Code. 5 Article III of the Plan specifies that Claims and Equity Interests, as applicable, in the following four 6 Classes (the “Impaired Classes”) are Impaired under the Plan within the meaning of section 1124 of 7 the Bankruptcy Code, and describes the treatment of such Classes: 8 Class Designation 9 3 Other MPT Obligations 4 General Unsecured Claims 10 5 Intercompany Claims 11 6 Equity Interests in the Debtors P ACHULSKI S TANG Z IEHL & J O NES LLP 12 No Discrimination—Section 1123(a)(4). ATTOR NE YS A T L AW SAN F RA NCISCO , CAL IFOR NI A 13 25. The Plan satisfies the requirements of section 1123(a)(4) of the Bankruptcy Code. The 14 Plan provides for the same treatment for each Claim or Equity Interest in each respective Class unless 15 the holder of a particular Claim or Equity Interest has agreed to a less favorable treatment of such 16 Claim or Equity Interest. 17 Adequate Means for Plan Implementation—Section 1123(a)(5). 18 26. The Plan satisfies the requirements of section 1123(a)(5) of the Bankruptcy Code. The 19 provisions in Article V and elsewhere in the Plan, and in the exhibits and attachments to the Plan and 20 the Disclosure Statement, provide, in detail, adequate and proper means for the Plan’s implementation, 21 including the creation of a Liquidation Trust to liquidate or otherwise dispose of the remaining assets 22 of the Estates, to the extent such assets were not previously monetized to Cash or otherwise transferred 23 by the Debtors prior to the Effective Date. 24 Voting Power of Equity Securities—Section 1123(a)(6). 25 27. The Plan satisfies the requirements of section 1123(a)(6) of the Bankruptcy Code, as 26 no party is authorized to issue nonvoting equity securities under the Plan and Article V.D of the Plan 27 provides that each of the Debtors’ operating agreements or articles of incorporation, as applicable, 28 8 Case: 21-51477 Doc# 647 Filed: 07/28/22 Entered: 07/28/22 16:19:30 Page 8 of 29 1 shall be deemed to include a provision prohibiting the issuance of nonvoting equity securities and such 2 other provisions as may be required pursuant to section 1123(a)(6) of the Bankruptcy Code. 3 Directors and Officers—Section 1123(a)(7). 4 28. The Plan satisfies the requirements of section 1123(a)(7) of the Bankruptcy Code. In 5 accordance with Article V.G and V.I of the Plan, the identities of the Liquidation Trustee and members 6 of the Liquidation Trust Oversight Committee have been disclosed as part of the Plan Supplement. 7 The selection of the foregoing parties is consistent with the interests of Holders of Claims and Equity 8 Interests and public policy. From and after the Effective Date, the Liquidation Trustee shall be deemed 9 the sole manager, director, officer, and representative of the Debtors to exercise the rights, power, and 10 authority of the Debtors under applicable provisions of this Plan and bankruptcy and non-bankruptcy 11 law. P ACHULSKI S TANG Z IEHL & J O NES LLP 12 Impairment/Unimpairment of Classes—Section 1123(b)(1). ATTOR NE YS A T L AW SAN F RA NCISCO , CAL IFOR NI A 13 29. The Plan is consistent with section 1123(b)(1) of the Bankruptcy Code. Article III of 14 the Plan impairs or leaves Unimpaired each Class of Claims and Equity Interests. 15 Assumption and Rejection—Section 1123(b)(2). 16 30. The Plan is consistent with section 1123(b)(2) of the Bankruptcy Code. Article VI of 17 the Plan provides for the rejection, effective as of the Effective Date, of the Debtors’ Executory 18 Contracts and Unexpired Leases except for those that (1) have previously expired or terminated 19 pursuant to their own terms or by agreement of the parties thereto, (2) have been assumed by order of 20 the Bankruptcy Court, (3) are Transferred Contracts under the Purchase Agreement; (4) are the subject 21 of a motion to assume or motion to reject pending on the Effective Date; (5) are identified on a schedule 22 of assumed contracts in the Plan Supplement; or (6) are explicitly assumed pursuant to the terms of 23 this Plan. 24 Compromise, Settlement, Release, Exculpation and Injunction—Section 1123(b)(3). 25 31. The Plan is consistent with section 1123(b)(3) of the Bankruptcy Code. Pursuant to 26 section 1123 of the Bankruptcy Code, and in consideration for the classification, distributions, 27 releases, and other benefits provided under the Plan, upon the Effective Date, the provisions of the 28 9 Case: 21-51477 Doc# 647 Filed: 07/28/22 Entered: 07/28/22 16:19:30 Page 9 of 29 1 Plan will constitute a good-faith compromise and settlement of all Claims and Equity Interests and 2 controversies resolved pursuant to the Plan. The compromise and settlement of such Claims and 3 Equity Interests embodied in the Plan and unimpairment of other Classes identified in the Plan are in 4 the best interests of the Debtors, the Estates, and all Holders of Claims and Equity Interests, and are 5 fair, equitable, and reasonable. 6 32. Article X of the Plan describes certain releases granted by the Debtors (the “Debtor 7 Releases”). The Confirmation Hearing Notice sent to Holders of Claims and Equity Interests, and the 8 Non-Voting Class Notice, unambiguously and prominently stated that the Plan contains the Debtor 9 Releases and provided therein a copy of the Debtor Releases excerpted from the Plan. The Plan 10 Proponents have satisfied the applicable standard with respect to the propriety of the Debtor Releases. 11 Such releases are a necessary and integral element of the Plan, and are fair, reasonable, and in the best P ACHULSKI S TANG Z IEHL & J O NES LLP 12 interests of the Debtors, the Estates, and Holders of Claims and Equity Interests. Also, the Debtor ATTOR NE YS A T L AW SAN F RA NCISCO , CAL IFOR NI A 13 Releases are: (a) in exchange for the good and valuable consideration provided by the Released Parties; 14 (b) a good faith settlement and compromise of the Claims released by the Debtors under the Plan; and 15 (c) given, and made, after due notice and opportunity for hearing. Creditors have voted in favor of the 16 Plan, including the Debtor Releases. The Plan, including the Debtor Releases, was negotiated by 17 sophisticated parti
Related Contentin Santa Cruz County
Case
Lu Yin vs Hsiau-Wei Lee
Jul 31, 2024 |Connolly, Rebecca |Dissolution w/ Minor Children |24FL00812
Case
In the Matter of Santa Cruz Memorial Cemetery
Aug 01, 2024 |Schmal, Timothy |Other Probate With At Least One Hearing |24PR00366
Case
Velocity Investments LLC vs Jocelyn Tellez
Aug 02, 2024 |Cogliati, Syda Kosofsky |(09) Limited Other Collections: 10,000 to 35,000 |24CV02198
Case
Cavalry SPV I, LLC As Assignee Of Synchrony Bank vs Jaclyn Housner
Aug 02, 2024 |Schmal, Timothy |(09) Limited Other Collections: Under 10,000 |24CV02202
Case
Crown Asset Management LLC vs Mayra Castillo
Jul 31, 2024 |Schmal, Timothy |(09) Limited Other Collections with Reduced Filing Fee |24CV02151
Case
Midland Credit Management Inc. vs Joshua Auble
Jul 31, 2024 |Schmal, Timothy |(09) Limited Other Collections with Reduced Filing Fee |24CV02152
Case
Citibank N.a. vs Jose Rocha-rocha
Jul 30, 2024 |Cogliati, Syda Kosofsky |(09) Limited Other Collections: Under 10,000 |24CV02140
Case
Petition of Dillon Hollinger
Jul 29, 2024 |Sheinbaum, Jordan |Summary Dissolution |24FL00802
Case
Clifford Galper vs Cherie Galper
Jul 30, 2024 |Connolly, Rebecca |Dissolution w/ Minor Children |24FL00807
Ruling
Nick Nguyen vs GENERAL MOTORS LLC
Aug 03, 2024 |23CV01562
23CV01562NGUYEN v. GENERAL MOTORS, LLC PLAINTIFF NGUYEN’S MOTIONS TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET ONE) AND REQUEST FOR PRODUCTION (SET ONE) The motion to compel further responses to special interrogatories, set one, is granted.Plaintiff is entitled to the requested witness information and defendant failed to adequatelyidentify documents from which that information could be derived. CCP §§ 2017.010, 2030.230.Defendant shall provide code-compliant further verified responses to special interrogatories, setone, nos. 14, 20, 23, 25, 26, 39, 41, and 43 within 21 days of the hearing. The motion to compel further responses to request for production, set one, is granted inpart. Defendant shall provide code-compliant further verified responses and responsivedocuments for request nos. 16-17, 28, 29, 37-64, 67-70, 73-73, 77-86 within 21 days of thehearing pursuant to the terms of the parties’ Stipulated Protective Order. As to nos. 16-17, ifpropriety documents exist, can be produced pursuant to a protective order, and have not alreadybeen produced, then defendant should provide further responsive documents. For request nos. Page 1 of 237-58, 59-64, 67-70, 73-74, 78-86, documents shall only be produced related to plaintiff’svehicle or those of the same make, model and year. Defendant’s further responses shall identifywhich documents are responsive to which requests. If any documents are withheld pursuant toany privilege, defendant shall also serve a privilege log.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 2 of 2
Ruling
Schwartz Foundation, a California corporation, et al vs Donald Schwartz, et al
Aug 03, 2024 |21CV00416
21CV00416SCHWARTZ FOUNDATION v. SCHWARTZ PLAINTIFFS’ MOTION TO DEEM REQUEST FOR ADMISSIONS AS ADMITTED PLAINTIFFS’ MOTION FOR TERMINATING SANCTIONS AND/OR ISSUE AND EVIDENTIARY SANCTIONS These unopposed motions are granted. This discovery dispute concerns written discovery propounded on defendants in 2021 and2022. Page 3 of 6 I. DISCOVERY BACKGROUND Plaintiffs served a first set of written discovery on April 6, 2021, which consisted of formand special interrogatories, requests for production of documents, and requests for admissions,on defendants. Due to inadequate responses, plaintiffs filed a motion to compel furtherresponses, which this court granted on January 10, 2022, and ordered the payment of sanctions.(Ex. 1 to Dec. of Schum.) Defendants did not comply with the January 10, 2022 order to servefurther, verified responses and never paid the sanctions ordered. (Dec. of Schum at ¶ 6.) On December 22, 2022, defendant Donald Schwartz served supplemental responses tosome of the discovery at issue, to which plaintiffs followed up with continued meet and conferefforts as they found the responses to lack compliance with the court’s prior order. (Dec. ofSchum at ¶¶ 12-13.) The other defendants, Charles P. Schwartz, III, David R. Schwartz, MichaelOsterberg, Paul D. Schwartz, and Stevon Schwartz failed to serve any supplemental responses asrequired by the January 10, 2022 court order. (Dec. of Schum at ¶ 12.) On March 21, 2023, plaintiffs filed a second motion to compel and requested sanctions.After the February 27, 2024, hearing on this motion, the court ordered defendants to serve code-compliant responses by March 29, 2024. The order stated, in part, that should defendants fail tocomply with the court’s order “the court may issue evidentiary sanctions in the form ofprohibiting the introduction of evidence not earlier produced in discovery, deeming mattersadmitted, and/or other appropriate terminating sanction(s).” (See Order dated March 11, 2024.)Plaintiffs assert they have not received the required discovery responses, documents production,or sanctions, as per the court’s March 11, 2024 order. (Dec. of Schum at ¶ 21.) Plaintiffs propounded a second set of written discovery on defendants Donald Schwartzand Michael Osterberg on January 4, 2022, which consisted of special interrogatories andrequests for production of documents. (Dec of Schum, Exs. 13-18.) Defendants Schwartz andOsterberg have never responded to these requests. (Dec. of Schum at ¶ 23.) After meet andconfer efforts, plaintiffs filed a motion to compel on March 22, 2023. The court granted thismotion to compel and ordered sanctions to be paid. (See Order dated March 11, 2024.) Plaintiffsassert defendants have ignored this order, have not served responses as required, and have notpaid the ordered sanctions. II. MOTIONS There are two motions before the court. Requests for admission deemed admitted Page 4 of 6 Plaintiffs request the truth of all matters specified in plaintiffs’ request for admissions, setone be deemed admitted, a confirmation that objections have been waived, and award sanctions.Plaintiffs contend as to Donald Schwartz, the January 10, 2022 and March 11, 2024 ordersrequired him to provide code-compliant responses to requests for admissions Nos. 25, 26, 27, 42,49, and 50 and as to the other defendants, the January 10 and March 11 orders required them toprovide verified responses to all requests. As noted above, plaintiffs served written discovery, including the requests for admissionsat issue in this motion on all defendants, on April 6, 2021. (Dec. of Takano at ¶ 3.) DonaldSchwartz served responses on May 17, 2021. (Dec. of Takano at ¶ 4.) On May 17, 2021 the otherdefendants served unverified responses. (Dec. of Takano at ¶ 5.) A motion to compel followedand the court granted plaintiffs’ motion and request for sanctions on January 10, 2022. (Dec. ofTakano, Ex. A.) Defendants did not comply with this order and plaintiffs filed a second motionto compel on March 21, 2023 which was not heard until February 27, 2024. (Dec. of Takano at¶¶ 11-12.) The court granted this second motion to compel and gave defendants until March 29,2024 to comply. Defendants have not complied with either order. (Dec. of Takano at ¶¶ 14-16.)Plaintiffs assert the March 11, 2024 order specifically warned defendants that their failure tocomply may result in the court deeming the matters admitted. Defendants did not oppose this motion. Code of Civil Procedure section 2033.290, subdivision (e) states that “[i]f a party thenfails to obey an order compelling further response to requests for admission, the court may orderthat the matters involved in the requests be deemed admitted. In lieu of, or in addition to, thisorder, the court may impose a monetary sanction under Chapter 7 (commencing with Section2023.010).” Plaintiffs demonstrated they served requests for admissions on defendants. Only DonaldSchwartz responded but certain of his responses were found to be deficient by the court and hewas ordered to serve compliant responses, which he failed to do on two separate occasions. Theother defendants failed to respond to the requests, even after court order, requiring verification. (1) As to the requests for admissions, set one, directed to Donald Schwartz, the truth of the matters specified in plaintiffs’ request for admissions, set one, nos. 25, 26, 27, 42, 49 and 50 are deemed admitted and objections waived. (2) As to the request for admissions, set one propounded to Paul D. Schwartz, Charles P Schwartz, David R. Schwartz, Stevon S. Schwartz, and Michael Osterberg, all are deemed admitted and objections are waived. Motion for issue and/or terminating sanctions Page 5 of 6 Plaintiffs also seek and order: (1) striking defendants’ answers to the complaint and firstamended complaint and (2) striking Donald Schwartz’s and Micheal Osterberg’s cross-complaintfiled September 23, 2021. In the alternative, plaintiffs request issue or evidentiary sanctions. Themotion to strike is granted. Plaintiffs assert terminating sanctions are warranted pursuant to Code of Civil Proceduresection 2023.010 which outlines the misuse of the discovery process and section 2023.030,subdivision (d) which allows for terminating sanctions. Plaintiffs contend that the incrementalapproach to discovery sanctions has been followed, as defendants failed to comply with twoprior court orders. Defendants have not opposed this motion. The court has the discretion to grant, or not grant, the requested sanctions. (Sauer v. Sup.Ct. (Oak Indus. Inc.(1987) 195 Cal.App.3d, 213, 228.) The court may strike a party’s pleading,stay proceedings, dismiss a party’s action, or enter default against that party pursuant to Code ofCivil Procedure section 2023.202, subdivision (d). (Weil & Brown Civil Procedure Before Trial(TRG 2023) § 8:2185.) Reviewing the voluminous pleadings relating to this discovery dispute, the court’s priororders, and the history of defendants failing to comply with these orders over a lengthy period oftime, the court finds terminating sanctions as requested by plaintiffs are appropriate. Onlyissuing monetary sanctions has not compelled defendants to comply with the court’s orders andthe Discovery Act. Defendants’ answers to the complaint and first amended complaint are stricken. Thecross-complaint filed by Donald Schwartz and Michael Osterberg is stricken. In addition, thecourt awards monetary sanctions in the amount of $4,000.00, jointly and severally againstdefendants and their counsel, payable within 20 days from the date the court’s order on thesemotions are entered.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 6 of 6
Ruling
Ralph Millar vs Paul Meltzer
Jul 29, 2024 |23CV00093
23CV00093MILLAR v. MELTZER (UNOPPOSED) DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION Defendant Paul Meltzer’s unopposed motion for summary judgment/adjudication isgranted. Summary judgment is appropriate since plaintiff failed to demonstrate with admissibleevidence that he can establish the necessary elements of his causes of action or that he incurredany damages from defendant’s alleged misconduct. No triable issues of material fact arepresented. Page 6 of 16 This is an action for breach of contract, common counts, and fraud related to defendant’srepresentation of plaintiff in plaintiff’s criminal trial. Plaintiff is in pro per. I. DEFENDANT’S MOTION Defendant moves for summary judgment on the grounds plaintiff cannot establish actualinnocence and thereby cannot support his claims of legal malpractice and breach of fiduciaryduty. Facts have already been admitted by prior motion, several of which act to negate plaintiff’sclaims: plaintiff admitted that he did not suffer damages as a result of Meltzer withdrawing fromrepresentation, Meltzer did not make any misrepresentations to him during his representation,Meltzer did not breach any fiduciary duty to plaintiff, Meltzer did not cause any damage toplaintiff while representing him, Meltzer was not a substantial factor in causing plaintiff to incurany damages, Meltzer did not breach his legal services agreement with plaintiff, and plaintiff didnot act in reliance on any alleged breach of the legal services agreement. (Undisputed MaterialFacts (“UMF”) 3-4, 18-33; Defendant’s RJN, Exs. O, P.) Further, plaintiff cannot prove that theflat fee of $250,000 paid to Meltzer by plaintiff’s father was not used for plaintiff's benefit forthe purposes of any common counts claim. (UMF 8-10.) Plaintiff filed no opposition. II. SUMMARY JUDGMENT STANDARD In a summary judgment motion, the court must determine from the evidence presentedthat “there is no triable issue as to any material fact and that the moving party is entitled tojudgment as a matter of law…” (CCP §437c(c).) In making this determination, the court mayrely on “affidavits, declarations… and matters of which judicial notice shall or may be taken.”(CCP §437c(b).) “The court’s sole function on a motion for summary judgment is issue-finding,not issue determination. The judge must simply determine whether there is a triable issue as toany material fact… To be material, the fact must relate to some claim or defense in issue underthe pleadings and be in some way essential to the judgment; if proved, it could change theoutcome of the case. There is a triable issue of material fact if, and only if, the evidence wouldallow a reasonable trier of fact to find the underlying fact in favor of the party opposing themotion in accordance with the applicable standard of proof…If there is a single such issue, themotion must be denied. (Weil & Brown, Civil Procedure Before Trial (The Rutter Group 2023)§§10:270-271.) "A party may move for summary judgment in an action or proceeding if it is contendedthat the action has no merit or that there is no defense to the action or proceeding." (CCP §437c(a)(l).) "[T]he party moving for summary judgment bears the burden of persuasion that thereis no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar Page 7 of 16v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 850.) "That is because of the general principle that aparty who seeks a court's action in his favor bears the burden of persuasion thereon." (Ibid.)Further, "the party moving for summary judgment bears an initial burden of production to makea prima facie showing of the nonexistence of any triable issue of material fact; if he carries hisburden of production, he causes a shift, and the opposing party is then subjected to a burden ofproduction of his own to make a prima facie showing of the existence of a triable issue ofmaterial fact." (Ibid.) "[T]he opposing party is then subjected to a burden of production of hisown to make a prima facie showing of the existence of a triable issue of material fact." (Ibid.)"There is a triable issue of material fact if, and only if, the evidence would allow a reasonabletrier of fact to find the underlying fact in favor of the party opposing the motion in accordancewith the applicable standard of proof." (Ibid.) Each material fact must have a citation to supporting evidence. (CCP 437c(b)(1).) “If atriable issue is raised as to any of the facts contained in the separate statement, the motion maybe denied.” (Weil & Brown, Civil Procedure Before Trial, at §10:95.1, citing Nazir v. UnitedAirlines, Inc. (2009) 178 Cal.App.4th 243, 252.) Opposition declarations are to be liberallyconstrued while the moving party’s evidence is strictly scrutinized. (Id. at §10:124.7.) The courtneed only rule on material objections, i.e., those that the Court relies on in making itsdetermination. Evidentiary objections not ruled on are presumed overruled and preserved forappellate review. (Id. at §9:63.1.) III. MATERIAL FACTS ARE NOT IN DISPUTE As stated, the facts presented in defendant’s Separate Statement establish that plaintiffcannot establish any of the required elements of his causes of action. Based upon theseundisputed facts, defendant has carried its burden of production that plaintiff’s action is notsupported by any admissible evidence. Plaintiff has failed to meet his burden as he has not filed an opposition or raised anytriable issue of disputed fact. “Without a separate statement with references to supportingevidence … it is impossible … to demonstrate the existence of disputed facts.” (CCP§437c(b)(3); Lewis v. County of Sacramento (2001) 93 cal.App.4th 107, 115 (disapproved onother grounds by Kaufman & Broad Communities, Inc. v. Performance Plastering (2005) 133Cal.App.4th 26, 41-42; Blackman v. Burrows (1987) 193 Cal.App.3d 889, 895.) Since plaintiff has failed to meet his burden of producing evidence supporting triableissues of material fact, summary judgment is appropriate. Defendant’s Request for Judicial Notice: Exhibits A, D, E, F, I, J: Various court records from Santa Cruz Superior no. 18CR05106,People v. Ralph Millar: Granted. Page 8 of 16 Exhibits O, P, Q, R: Various court records in this action: Granted.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.
Ruling
Ralph Millar vs Paul Meltzer
Jul 30, 2024 |23CV00093
23CV00093MILLAR v. MELTZER (UNOPPOSED) DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION Defendant Paul Meltzer’s unopposed motion for summary judgment/adjudication isgranted. Summary judgment is appropriate since plaintiff failed to demonstrate with admissibleevidence that he can establish the necessary elements of his causes of action or that he incurredany damages from defendant’s alleged misconduct. No triable issues of material fact arepresented. Page 6 of 16 This is an action for breach of contract, common counts, and fraud related to defendant’srepresentation of plaintiff in plaintiff’s criminal trial. Plaintiff is in pro per. I. DEFENDANT’S MOTION Defendant moves for summary judgment on the grounds plaintiff cannot establish actualinnocence and thereby cannot support his claims of legal malpractice and breach of fiduciaryduty. Facts have already been admitted by prior motion, several of which act to negate plaintiff’sclaims: plaintiff admitted that he did not suffer damages as a result of Meltzer withdrawing fromrepresentation, Meltzer did not make any misrepresentations to him during his representation,Meltzer did not breach any fiduciary duty to plaintiff, Meltzer did not cause any damage toplaintiff while representing him, Meltzer was not a substantial factor in causing plaintiff to incurany damages, Meltzer did not breach his legal services agreement with plaintiff, and plaintiff didnot act in reliance on any alleged breach of the legal services agreement. (Undisputed MaterialFacts (“UMF”) 3-4, 18-33; Defendant’s RJN, Exs. O, P.) Further, plaintiff cannot prove that theflat fee of $250,000 paid to Meltzer by plaintiff’s father was not used for plaintiff's benefit forthe purposes of any common counts claim. (UMF 8-10.) Plaintiff filed no opposition. II. SUMMARY JUDGMENT STANDARD In a summary judgment motion, the court must determine from the evidence presentedthat “there is no triable issue as to any material fact and that the moving party is entitled tojudgment as a matter of law…” (CCP §437c(c).) In making this determination, the court mayrely on “affidavits, declarations… and matters of which judicial notice shall or may be taken.”(CCP §437c(b).) “The court’s sole function on a motion for summary judgment is issue-finding,not issue determination. The judge must simply determine whether there is a triable issue as toany material fact… To be material, the fact must relate to some claim or defense in issue underthe pleadings and be in some way essential to the judgment; if proved, it could change theoutcome of the case. There is a triable issue of material fact if, and only if, the evidence wouldallow a reasonable trier of fact to find the underlying fact in favor of the party opposing themotion in accordance with the applicable standard of proof…If there is a single such issue, themotion must be denied. (Weil & Brown, Civil Procedure Before Trial (The Rutter Group 2023)§§10:270-271.) "A party may move for summary judgment in an action or proceeding if it is contendedthat the action has no merit or that there is no defense to the action or proceeding." (CCP §437c(a)(l).) "[T]he party moving for summary judgment bears the burden of persuasion that thereis no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar Page 7 of 16v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 850.) "That is because of the general principle that aparty who seeks a court's action in his favor bears the burden of persuasion thereon." (Ibid.)Further, "the party moving for summary judgment bears an initial burden of production to makea prima facie showing of the nonexistence of any triable issue of material fact; if he carries hisburden of production, he causes a shift, and the opposing party is then subjected to a burden ofproduction of his own to make a prima facie showing of the existence of a triable issue ofmaterial fact." (Ibid.) "[T]he opposing party is then subjected to a burden of production of hisown to make a prima facie showing of the existence of a triable issue of material fact." (Ibid.)"There is a triable issue of material fact if, and only if, the evidence would allow a reasonabletrier of fact to find the underlying fact in favor of the party opposing the motion in accordancewith the applicable standard of proof." (Ibid.) Each material fact must have a citation to supporting evidence. (CCP 437c(b)(1).) “If atriable issue is raised as to any of the facts contained in the separate statement, the motion maybe denied.” (Weil & Brown, Civil Procedure Before Trial, at §10:95.1, citing Nazir v. UnitedAirlines, Inc. (2009) 178 Cal.App.4th 243, 252.) Opposition declarations are to be liberallyconstrued while the moving party’s evidence is strictly scrutinized. (Id. at §10:124.7.) The courtneed only rule on material objections, i.e., those that the Court relies on in making itsdetermination. Evidentiary objections not ruled on are presumed overruled and preserved forappellate review. (Id. at §9:63.1.) III. MATERIAL FACTS ARE NOT IN DISPUTE As stated, the facts presented in defendant’s Separate Statement establish that plaintiffcannot establish any of the required elements of his causes of action. Based upon theseundisputed facts, defendant has carried its burden of production that plaintiff’s action is notsupported by any admissible evidence. Plaintiff has failed to meet his burden as he has not filed an opposition or raised anytriable issue of disputed fact. “Without a separate statement with references to supportingevidence … it is impossible … to demonstrate the existence of disputed facts.” (CCP§437c(b)(3); Lewis v. County of Sacramento (2001) 93 cal.App.4th 107, 115 (disapproved onother grounds by Kaufman & Broad Communities, Inc. v. Performance Plastering (2005) 133Cal.App.4th 26, 41-42; Blackman v. Burrows (1987) 193 Cal.App.3d 889, 895.) Since plaintiff has failed to meet his burden of producing evidence supporting triableissues of material fact, summary judgment is appropriate. Defendant’s Request for Judicial Notice: Exhibits A, D, E, F, I, J: Various court records from Santa Cruz Superior no. 18CR05106,People v. Ralph Millar: Granted. Page 8 of 16 Exhibits O, P, Q, R: Various court records in this action: Granted.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.
Ruling
Cristofer Moreno vs Celestino Martinez Ramirez, et al
Aug 01, 2024 |23CV02553
23CV02553MORENO v. RAMIREZ MOTION TO BE RELIEVED AS COUNSEL The unopposed motion to be relieved as counsel filed by Shaun J. Bauman is granted as itcomplies with California Rules of Court, Rule, 3.1362. The court will sign the proposed order.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.
Ruling
35 requests all documents including any written or oral communications … between
Jul 29, 2024 |35 requests all documents including any written or oral communications … between
35 requests all documents including any written or oral communications … betweenanyone working for Scruggs, Spini & Fulton and Casey Clark relating to the allegations in thecomplaint, from August 1, 2022, to the present. In response, plaintiff objected based upon workproduct privilege. Casey Clark, defendant alleges, has been identified as a witness by plaintiff ashaving knowledge regarding the molestation claim. Defendant seeks communications betweenMr. Clark and plaintiff’s counsel. In opposition, plaintiff argues any statements obtained by hiscounsel from Mr. Clark are “classic attorney work produce, especially where, as here, theDefense will be taking Mr. Clark’s deposition on July 16, 2024.” In this case, the court is not inclined to compel a further response which may potentiallyinvade the attorney-work product privilege. Mr. Scruggs, counsel for plaintiff, represented thatMr. Clark was to be deposed on July 16, 2024. The parties can inform the court at hearing if thedeposition did not go forward and this request to compel a further response can be revisited.
Ruling
KEVIN KOEBEL, et al vs PERFORMANCE TRANSPORTATION, LLC,, et al
Aug 02, 2024 |22CV02018
22CV02018KOEBEL v. PERFORMANCE TRANSPORTATION, LLC PETITION FOR APPROVAL OF COMPROMISE OF CLAIM RELATED TO PERSON WITH A DISABILITY The petition for approval of compromise is granted.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 1 of 16 LAW AND MOTION TENTATIVE RULINGS DATE: JULY 29, 2024 TIME: 8:30 A.M.
Ruling
Tom Ebert vs Ocean Queen USA, Inc., et al
Aug 03, 2024 |19CV03672
19CV03672EBERT v. OCEAN QUEEN USA, et al. DEFENDANTS’ MOTION TO TAX COSTS The motion to tax is granted in part. I. LEGAL STANDARDS Prevailing parties are entitled to recover certain categories of costs as a matter of right.(CCP §1032; Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 800.) Certain items ofcosts are specifically allowable, while others are specifically prohibited under CCP§1033.5(a)(b). The court has discretion to allow costs which are not mentioned (neither allowednor prohibited) in CCP §1033.5. (CCP §1033.5(c)(4).) However, whether awarded as allowable Page 1 of 6costs under the statute, or in the court’s discretion, all costs are subject to the conditions that theyare (1) actually incurred; (2) necessary to the conduct of the litigation rather than merelyconvenient or beneficial to its preparation; and (3) reasonable in amount. (CCP §1033.5(c)(1)-(3).) If items on their face appear to be proper charges, the verified memorandum of costs isprima facie evidence of their propriety, and the burden is on the party seeking to tax costs toshow that they were not reasonable or necessary. The losing party may contest the costs that aprevailing party seeks. (CCP §1034(a).) The challenging party has the burden of demonstratingthat those costs are unreasonable or unnecessary. (Adams v. Ford Motor Co. (2011) 199Cal.App.4th 1475, 1486; South LLC v. Laconic Limited Partnership (2010) 184 Cal.App.4th1270, 1285.) If the costs are properly objected to, they are put in issue and the burden of proof ison the party claiming them as costs. (Witkin, 7 California Procedure, (5th Ed.) “Judgment”,§146, citing Ladas v. Calif. State Auto Assn. (1993) 19 Cal.App.4th 761.) II. DISCUSSION Plaintiff Tom Ebert’s cost memorandum seeks $16,614 (the cost bill itemized $18,701,but plaintiff has withdrawn a portion of the costs from Item 11). The court awards $16,609 asdescribed in Table 1. Cost/item Amount Requested Defendant’s Amount to Rationale/Basis
Document
Citibank N.a. vs Jose Rocha-rocha
Jul 30, 2024 |Cogliati, Syda Kosofsky |(09) Limited Other Collections: Under 10,000 |24CV02140
Document
KC DBW D1, LLC vs WILLIAM SUMP, II, et al
Jun 01, 2022 |Cogliati, Syda Kosofsky |(06) Unlimited Breach of Contract / Warranty |22CV01122
Document
Michael Botill vs Dan Jordan, et al
Jul 26, 2023 |Cogliati, Syda Kosofsky |(15) Unlimited Other Employment |23CV01792
Document
Shane Bell, et al vs Pinky Higgins, et al
Mar 09, 2022 |Cogliati, Syda Kosofsky |(23) Unlimited Other PI / PD / WD |22CV00505
Document
Sergio Alvarez, et al vs Gerard Stascausky, et al
Apr 22, 2021 |Cogliati, Syda Kosofsky |(16) Unlimited Fraud |21CV01051
Document
ALFRED PINARD, III, et al vs SAL SARDINA, et al
Jul 22, 2023 |Cogliati, Syda Kosofsky |(37) Unlimited Other Contract |23CV01746
Document
Amy Bailey vs Fisher Electric Inc., et al
Aug 02, 2022 |Cogliati, Syda Kosofsky |(23) Unlimited Other PI / PD / WD |22CV01666
Document
Jeffery Hamilton, et al vs Burgerim Santa Cruz
Sep 13, 2019 |Cogliati, Syda Kosofsky |(15) Unlimited Other Employment |19CV02786
