Balt USA, LLC vs. Treadstone Medical LLC

Court “did not thereafter affect a tolling of the Statute of Limitations regarding this claim.”

Thus, the arbitration award shows that, contrary to plaintiff’s contention, the arbitrator did consider his individual claims.

Also, to the extent that plaintiff contends that he was not aware that defendant had submitted evidence and a separate statement because these documents were not referenced in the submission with the moving papers and was not given an opportunity to refute or rebut them, the record shows that plaintiff filed a written opposition to the motion for summary judgment (plaintiff’s Exhibit N and defendant’s Exhibit 5). Also, as previously noted, the arbitrator’s award states that a hearing was held on the motion for summary judgment and counsel for both parties were present at that hearing.

The remainder of plaintiff’s arguments appear to be complaints that the arbitrator made errors of law in his ruling. However, an arbitrator's decision generally cannot be reviewed for errors of fact or law. Moncharsh v. Heily & Blase (1993) 3 Cal.4th 1, 11.

Accordingly, the motion to vacate is denied.

The Court sets a CMC for August 6, 2026 at 9:30AM to discuss the status of further proceedings including (1) lifting the stay; (2) Defendant’s plans regarding confirming the arbitration award; (3) the effect of the arbitration award on the representative PAGA case; and (4) ongoing case management and trial setting. The parties shall submit a joint CMC statement at least 10 days in advance of the hearing addressing these along with any other relevant matters.

Defendant to give notice. 112 Balt USA, LLC vs. Treadstone Medical LLC

2021-01237081

1.Motion for Summary Judgment and/or Adjudication re: Liquid Embolic Kit (ROA 1582) 2. Motion for Summary Judgment and/or Adjudication re: Tinnitus (ROA 1666) 3. Motion for Summary Judgment and/or Adjudication re: Electrocautery (ROA 1670)

Liquid Embolic

Defendants Randall Takahashi, David Ferrera, Dawson Le, Treadstone Medical LLC, M4D LLC, Infinity Neuro LLC, Vtail Medical, LLC, Sonorous Neurovascular, Inc., and RC Medical, LLC move for summary adjudication against plaintiff Balt USA, LLC as to the following issues: (1) The liquid embolic kit for peripheral veins had been conceived by Dr. Satoshi Tateshima, and it was not a corporate opportunity that the Defendants had a duty to disclose to Balt (Fourth Cause of Action); (2) The liquid embolic kit for peripheral veins had not been conceived by the Individual Defendants while they were employed by Balt, and had been abandoned, and as a result the Defendants were not contractually obligated to disclose and assign their rights and interests in the liquid embolic kit for peripheral veins to Balt pursuant to their employment agreements (Seventh Cause of Action); and (3) Since Balt does not have a lawful claim to liquid embolic kit for peripheral veins there is no merit to the other causes of action which relate to the liquid embolic glue, i.e., nos. 5- 6, 8-10.

For the following reasons, defendants’ motion is GRANTED in part and DENIED in part.

Legal Authority

A defendant seeking summary judgment bears its burden of showing that a cause of action has no merit if the defendant shows that one or more elements of the cause of action cannot be established, or that the defendant has a complete defense to the cause of action. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.

If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840. If the defendant meets this initial burden, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar, 25 Cal.4th at 850-51.

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends the cause of action has no merit, there is no affirmative defense to the cause of action, there is no merit to an affirmative defense as to any cause of action, there is no merit to a claim for damages, as specified in Civil Code section 3294, or that one or more defendants either owed or did not owe a duty to the plaintiff.

Civ. Proc. Code § 437c(f)(l). A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. Id. A motion for summary adjudication proceeds in all procedural respects as a motion for summary judgment. Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 453.

The moving party’s evidence is to be strictly construed, while the opposing party’s evidence is to be liberally construed. Johnson v. Super. Ct. (2006) 143 Cal.App.4th 297, 308; see also Los Angeles Unified School Dist. v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 492 (declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party). The trial court may not weigh the evidence or evaluate credibility. Binder v. Aetna Life Insurance Co. (1999) 75 Cal.App.4th 832, 840. “The court must consider not only the bare evidence, but also the reasonable inferences deducible from the evidence, and determine whether the evidence is sufficient to support a potential judgment in favor of the opposing party.” Id.

Procedural Dispute

The parties initially dispute whether the motion is procedurally proper because it does not purport to “completely dispose[] of a cause of action.” C.C.P. § 437c, sub. (f)(1). Defendants argue a party may move for summary adjudication challenging separate and distinct wrongful acts even though they are, as here, combined with other wrongful acts alleged in the same cause of action. Specifically, defendants’ aim the motion at the alleged misconduct related to the liquid embolic kit and cause of action nos. 4-10, to the extent those claims rely upon the

alleged misconduct related to the “Liquid Embolic Kit for Peripheral Veins (StoneWall)” (the “liquid embolic kit”). See TAC ¶¶ 94-95.

Among other things, plaintiff’s breach of fiduciary duty claim (cause of action no. 4) concerns the corporate opportunities allegedly usurped by defendants. TAC ¶¶ 137-141. Among those opportunities are several “undisclosed inventions,” which include the liquid embolic kit. Id. ¶¶ 87- 119. While the court understands plaintiff’s argument the product development projects were related and concern some common facts, they appear sufficiently distinct such that they can be considered separate wrongful acts for which summary adjudication is available despite their inclusion in the same cause of action.

As explained in Lilienthal & Fowler v. Superior Ct. (1993), the court finds the interpretation of the code that would permit such motions best serves the legislative purpose of achieving time and cost savings. 12 Cal. App. 4th 1848, 1854 (“To rule otherwise would defeat the time and cost saving purposes of the amendment and allow a cause of action in its entirety to proceed to trial even where, as here, a separate and distinct alleged obligation or claim may be summarily defeated by summary adjudication.)" In other words, each of the allegedly usurped corporate opportunities carried with it a corresponding obligation such that the court may treat them separately for purposes of summary adjudication.

While the court is aware Lilienthal has been questioned and distinguished, the court finds no basis to do so here as none of the authorities appear analogous. See, e.g., Bagley v. TRW, Inc. (1999) 73 Cal. App. 4th 1092, 1095 n.2 (dicta in case concerning substantively duplicative summary adjudication motions); Catalano v. Superior Ct. (2000) 82 Cal. App. 4th 91, 93-94 (summary adjudication of four of five issues supporting punitive damages was prohibited).

Merits

ISSUE NO. 1: “The liquid embolic kit for peripheral veins had been conceived by Dr. Satoshi Tateshima, and it was not a corporate opportunity that the Defendants had a duty to disclose to Balt (Fourth Cause of Action).” ROA 1582.

Under Delaware law, which the parties agree applies, a fiduciary cannot take a business opportunity for himself if: (1) the corporation is financially able to exploit the opportunity; (2) the opportunity is within the corporation’s line of business; (3) the corporation has an interest or expectancy in the opportunity; and (4) by taking the opportunity for his own, the corporate fiduciary will thereby be place in a position inimical to his duties to the corporation. Broz v. Cellular Information Systems (Del. 1996) 673 A.2d 148, 155.

Conversely, “a director or officer may take a corporate opportunity if: (1) the opportunity is presented to the director or officer in his individual and not his corporate capacity; (2) the opportunity is not essential to the corporation; (3) the corporation holds no interest or expectancy in the opportunity; and (4) the director or officer has not wrongfully employed the resources of the corporation in pursuing or exploiting the opportunity.” Id. Defendants’ facts in support of this issue include, among others, Statement of Undisputed Material Fact (“SUF”) 4-13, which are largely undisputed.

ROA 1928. Those facts establish that prior to his departure from Balt on May 29, 2020, David Ferrera, Chief Technology Officer of Balt Inc. at the time, met with Dr. Satoshi Tateshima to discuss Tateshima’s idea to use an embolic glue manufactured by Johnson &

Johnson (sold as “TruFill”) to stop bleeding in parts of the body other than the brain, which was the only use of Trufill approved by the FDA. SUF 4-13. Because the TruFill patent was set to expire, Tateshima’s idea was to develop a low-cost, TruFill derivative that could be used for general surgical procedures, i.e., outside the brain. Id. Defendants argue the facts related to Ferrera’s development of Tateshima’s idea establish development occurred after Ferrera’s departure from Balt. SUF 15-25.

Defendants further argue the facts establish that defendants Randall Takahashi, Dawson Le, and Charles Yang all resigned from Balt in 2019, and were not working at Balt in the Spring of 2020 when Tateshima disclosed his idea to Ferrara. SUF 26-27, 36. The evidence is sufficient to shift the burden to plaintiff to show that a triable issue of material fact exists. Plaintiff disputes the facts above regarding development of Tateshima’s idea. Plaintiff relies primarily on the evidence cited in response to SUF 15.

See ROA 1928 SUF 15, 25-27, 36. However, none of the evidence plaintiff cites concerns the Tateshima idea. Instead, the evidence plaintiff relies upon expressly concerns Balt’s liquid embolic product “Squid,” which plaintiff argues defendants attempted to “knock off” to produce a Squid competitor using Balt’s confidential files. SUF 15. Notably, plaintiff argues the plan to develop this knockoff was first hatched in September 2019, i.e., before Tateshima ever disclosed his idea to Ferrera. SUF 4-13.

Additionally, plaintiff does not dispute that its two embolic glue products, “Magic Glue” and Squid, were designed “to treat neurovascular bleeding involving the veins or arteries of the brain.” Accordingly, in addition to the lack of any evidentiary connection, there is no logical inference connecting Tateshima’s idea, which concerned use of embolic glue to treat areas other than the brain, to a Balt or Balt competitive product. SUF 28, 30; see also TAC ¶¶ 94-95 (alleging formation of Stonewall to exploit 2020 intellectual property).

Defendants also argue Tateshima’s idea was not sufficiently “concrete” to constitute a corporate opportunity requiring disclosure to Balt prior to Ferrera’s departure. However, a legal distinction between “abstract” and “concrete” ideas is not found in Delaware law and the court does not find the court of appeals case from Arizona, which appears to make that distinction, persuasive. Taser International Inc. v. Ward (2010) 224 Ariz. 389. Additionally, to the extent Taser equates abandonment of development prior to production with a lack of liability for breach of the duty of loyalty, the court disagrees with it.

However, even assuming the court were to accept defendants’ abstract/concrete framework, the evidence presented does not require the trier of fact to find in defendants’ favor. Aguilar, supra, 25 Cal.4th at 845. While it is undisputed that Ferrera left Balt on May 29, 2020 (SUF 10), and did not create the “Stonewall” pitch deck concerning Tateshima’s idea until the “summer” of 2020 (SUF 15-16), neither Ferrera nor Tateshima state that any additional discussions regarding Tateshima’s idea occurred after the initial discussion (while Ferrera was employed by Balt) and before Ferrera began to “develop” the idea.

In other words, viewing the evidence in the light most favorable to the party opposing summary adjudication, it is reasonable to conclude Tateshima’s idea was sufficiently “concrete” at the time of the initial discussion to permit Ferrera to undertake a viability analysis almost immediately. Moreover, Taser demonstrates that inquiries concerning idea development are factintensive questions reserved for the jury. Taser, supra, 224 Ariz. at 396;

see also Binder v. Aetna Life Insurance Co. (1999) 75 Cal.App.4th 832, 840 (weighing evidence is a task reserved for the jury). That development of the embolic kit was ultimately abandoned and never produced for sale is immaterial. Relatedly, to the extent defendants argue nothing was invented and there was thus no property to assign, the contention incorrectly assumes all property is tangible. Defendants further argue that, among other things, because Tateshima’s idea was presented to Ferrera in his individual capacity and Balt had no expectancy interest in the opportunity, Ferrera was free to take the corporate opportunity as his own.

SUF 35. This argument fails. Johnston v. Greene (Del. 1956) 121 A.2d 919, 924 (company has an interest or expectancy in an opportunity when there is “some tie” between the opportunity and “the nature of the corporate business”). Here, as discussed above, the undisputed facts show Tateshima’s idea concerned the use of embolic glue to stop bleeding in parts of the body other than the brain, i.e., outside the application of Balt’s two glue products. Additionally, Ujwal Jalgaonkar, Vice President of Research and Development for Balt USA, testified that liquid embolics were squarely within Balt’s line of business.

ROA 1812 Ex. 3 at 138:19-25 (“Earlier today, you testified about general product categories that are within Balt's line of business. And so we talked about embolization coils, aspiration catheters, stents, stent retrievers, flow diverters, access devices, which was microcatheters, guide wires, and balloons, and then liquid embolics.”). Furthermore, Fred Gunderman, Balt’s Vice President of Clinical and Medical Affairs explained Balt’s main focus was ”neurovascular diseases and adjacent disease states,” which are “diseases that would be accessed along the way to the head or around peripheral vascular locations.”

ROA 1812 Ex. 6 at 34:7-35:15. Accordingly, the evidence does not require the finder of fact to conclude that Balt did not have an expectancy interest in a third embolic glue product based on Tateshima’s idea, i.e., that had a different application than its existing products. The court thus finds there exists a triable issue of fact regarding Ferrera’s usurpation of a corporate opportunity based on Tateshima’s idea presented to him while employed by Balt and summary adjudication of this issue is thus denied.

However, this finding does not apply to defendants Randall Takahashi, Dawson Le, and Charles Yang, who all resigned from Balt in 2019, and were not working at Balt in 2020 when Ferrera was presented with Tateshima’s idea. SUF 27. As discussed above, defendants have failed to show these defendants’ activities while employed by Balt are factually or logically connected to Tateshima’s idea, so no triable issue of fact exists as to them based on Tateshima’s idea and summary adjudication of this issue as to them is granted.

ISSUE NO. 2: “The liquid embolic kit for peripheral veins had not been conceived by the Individual Defendants while they were employed by Balt, and had been abandoned, and as a result the Defendants were not contractually obligated to disclose and assign their rights and interests in the liquid embolic kit for peripheral veins to Balt pursuant to their employment agreements (Seventh Cause of Action).” ROA 1582.

For the same reasons above, the court finds there exists a triable issue of fact regarding Ferrera’s failure to disclose Tateshima’s idea to Balt and summary adjudication of this issue is denied. For the same reasons above, plaintiff has failed to show a triable issue of fact exists as to defendants Randall Takahashi, Dawson Le, and Charles Yang, who all resigned from Balt in 2019, and were not working at Balt in 2020 when Ferrera was presented with Tateshima’s idea. SUF 27. As discussed above, defendants have failed to show these defendants’ activities while employed by Balt are factually or logically connected to Tateshima’s idea, so no triable issue of fact exists as to them based on Tateshima’s idea and summary adjudication of this issue as to them is granted.

ISSUE NO. 3: “Since Balt does not have a lawful claim to liquid embolic kit for peripheral veins there is no merit to the other causes of action which relate to the liquid embolic glue, i.e., the Fifth Cause of Action, alleging aiding and abetting; the Sixth Cause of Action, alleging tortious interference of contract; the Eighth Cause of Action, alleging breach of contract; the Ninth Cause of Action, alleging breach of competitive conduct against the Individual Defendants; and the Tenth Cause of Action, alleging unfair competition.

None of those causes of action can support a claim based upon the liquid embolic kit for peripheral veins and they are meritless as to that medical device.” ROA 1582.

For the same reasons above, the court finds there exists a triable issue of fact regarding Ferrera’s failure to disclose Tateshima’s idea to Balt and summary adjudication of this issue based on Ferrera is denied. For the same reasons above, plaintiff has failed to show a triable issue of fact exists as to defendants Randall Takahashi, Dawson Le, and Charles Yang, who all resigned from Balt in 2019, and were not working at Balt in 2020 when Ferrera was presented with Tateshima’s idea. SUF 27. As discussed above, defendants have failed to show these defendants’ activities while employed by Balt are factually or logically connected to Tateshima’s idea, so no triable issue of fact exists as to them based on Tateshima’s idea and summary adjudication of this issue as to them is granted. Request for Judicial Notice

To the extent a request for judicial notice is contained within a declaration (ROA 1566 ¶ 6), that request is improper and is denied. “Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).” CRC, Rule 3.1113(l).

Evidentiary Objections

Plaintiff’s Objection No. 1, as to Tateshima Decl. ¶ 18, is overruled; foundation and personal knowledge is based on his relationship with Ferrera (¶¶ 13-14). Plaintiff’s Objection No. 2, as to Ferrera Decl. ¶¶ 9, 11, and 29-30, is overruled; Ferrera’s personal understanding is not a legal conclusion and he has adequate foundation and personal knowledge to speak to the scope of Balt USA’s business, limited by his understanding during the time he was employed. The remainder of plaintiff’s Objection No. 2 was not material to the disposition of the motion. Civ. Proc. Code § 437c(q). Plaintiff’s Objection No. 3, as to Takahashi Decl. ¶ 5, is overruled; he has adequate foundation and

personal knowledge to speak to the scope of Balt USA’s business, limited by his understanding during the time he was employed. The remainder of plaintiff’s Objection No. 3 was not material to the disposition of the motion. Civ. Proc. Code § 437c(q).

Defendants’ Objection No. 1, as to Exhibit 87, is overruled; the document includes sufficient information to identify the participants and Takahashi testified as to its authenticity. ROA 1819 Ex. 34 at 164:7-166:16. Defendants’ Objection No. 2, as to Exhibit 88, was not material to the disposition of the motion. Civ. Proc. Code § 437c(q). Defendants’ Objection No. 3, as to Exhibit 146 is sustained as plaintiff has failed to authenticate it. See Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 855 (documents obtained in discovery and used to support or oppose a motion for summary judgment must be authenticated, admissible, and nonhearsay); Cal. Evid. Code, § 1401 (to be received in evidence, a writing must be authenticated).

Plaintiff to give notice.

Tinnitus

Defendants Randall Takahashi, David Ferrera, Dawson Le, Treadstone Medical LLC, M4D LLC, Infinity Neuro LLC, Vtail Medical, LLC, Sonorous Neurovascular, Inc., and RC Medical, LLC move for summary adjudication against plaintiff Balt USA, LLC as to the following issues: (1) The tinnitus treatment that Dr. Stout shared with David Ferrera, nor Sonorous’ BosSTENT, are corporate opportunities, because they are not in Balt USA, LLC’s line of business and Balt USA, LLC did not have interest or expectancy therein, and therefore Balt’s Fourth Cause of Action for breach of fiduciary duty fails as a matter of law as to the tinnitus treatment; (2) The BosSTENT was conceived, created, and invented after the Individual Defendants left Balt and as a result, the Individual Defendants did not have a duty to disclose or assign such corporate opportunity, and therefore Balt’s Fourth Cause of Action fails as a matter of law as to the tinnitus treatment; (3) Since Balt USA does not have a lawful claim to Dr.

Stout’s tinnitus treatment or the BosSTENT, Balt’s Fifth Cause of Action for aiding and abetting a breach of fiduciary duty fails as a matter of law as to the tinnitus opportunity; (4) Since Balt USA does not have a lawful claim to the tinnitus opportunity, Balt’s Sixth Cause of Action for tortious interference with contract fails as a matter of law as to the tinnitus opportunity; (5) Since Balt USA does not have a lawful claim to the tinnitus opportunity, Balt’s Seventh Cause of Action for declaratory judgment fails as a matter of law as to the tinnitus opportunity; (6) Since Balt USA does not have a lawful claim to the tinnitus opportunity, Balt’s Ninth Cause of Action for breach of contract for competitive conduct fails as a matter of law as to the tinnitus opportunity; (7) Since Balt USA does not have a lawful claim to the tinnitus opportunity, Balt’s Tenth Cause of Action for unfair competition fails as a matter of law as to the tinnitus opportunity.

For the following reasons, defendants’ motion is DENIED.

Legal Authority

A defendant seeking summary judgment bears its burden of showing that a cause of action has no merit if the defendant shows that one or more elements of the cause of action cannot be established, or that the defendant has a complete defense to the cause of action. Cal. Civ. Proc.

Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.

If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840. If the defendant meets this initial burden, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar, 25 Cal.4th at 850-51.

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends the cause of action has no merit, there is no affirmative defense to the cause of action, there is no merit to an affirmative defense as to any cause of action, there is no merit to a claim for damages, as specified in Civil Code section 3294, or that one or more defendants either owed or did not owe a duty to the plaintiff.

Civ. Proc. Code § 437c(f)(l). A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. Id. A motion for summary adjudication proceeds in all procedural respects as a motion for summary judgment. Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 453.

The moving party’s evidence is to be strictly construed, while the opposing party’s evidence is to be liberally construed. Johnson v. Super. Ct. (2006) 143 Cal.App.4th 297, 308; see also Los Angeles Unified School Dist. v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 492 (declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party). The trial court may not weigh the evidence or evaluate credibility. Binder v. Aetna Life Insurance Co. (1999) 75 Cal.App.4th 832, 840. “The court must consider not only the bare evidence, but also the reasonable inferences deducible from the evidence, and determine whether the evidence is sufficient to support a potential judgment in favor of the opposing party.” Id.

Procedural Dispute

The parties initially dispute whether the motion is procedurally proper because it does not purport to “completely dispose[] of a cause of action.” C.C.P. § 437c, sub. (f)(1). Defendants argue a party may move for summary adjudication challenging separate and distinct wrongful acts even though they are, as here, combined with other wrongful acts alleged in the same cause of action. Specifically, defendants’ aim the motion at the alleged misconduct related to the “tinnitus opportunity” and cause of action nos. 4-7, 9-10 to the extent those claims rely upon the alleged misconduct related to the tinnitus opportunity. See TAC ¶¶ 87-93.

Among other things, plaintiff’s breach of fiduciary duty claim (cause of action no. 4) concerns the corporate opportunities allegedly usurped by defendants. TAC ¶¶ 137-141. Among those opportunities are several “undisclosed inventions,” which include the tinnitus treatment. Id. ¶¶ 87- 119. While the court understands plaintiff’s argument the product development projects were related and concern some common facts, they appear sufficiently distinct such that they can be considered separate wrongful acts for which summary adjudication is available

despite their inclusion in the same cause of action. As explained in Lilienthal & Fowler v. Superior Ct. (1993), the court finds the interpretation of the code that would permit such motions best serves the legislative purpose of achieving time and cost savings. 12 Cal. App. 4th 1848, 1854 (“To rule otherwise would defeat the time and cost saving purposes of the amendment and allow a cause of action in its entirety to proceed to trial even where, as here, a separate and distinct alleged obligation or claim may be summarily defeated by summary adjudication.)" In other words, each of the allegedly usurped corporate opportunities carried with it a corresponding obligation such that the court may treat them separately for purposes of summary adjudication.

While the court is aware Lilienthal has been questioned and distinguished, the court finds no basis to do so here as none of the authorities appear analogous. See, e.g., Bagley v. TRW, Inc. (1999) 73 Cal. App. 4th 1092, 1095 n.2 (dicta in case concerning substantively duplicative summary adjudication motions); Catalano v. Superior Ct. (2000) 82 Cal. App. 4th 91, 93-94 (summary adjudication of four of five issues supporting punitive damages was prohibited).

Merits

ISSUE NO. 1: “The tinnitus treatment that Dr. Stout shared with David Ferrera, nor Sonorous’ BosSTENT, are corporate opportunities, because they are not in Balt USA, LLC’s line of business and Balt USA, LLC did not have interest or expectancy therein, and therefore Balt’s Fourth Cause of Action for breach of fiduciary duty fails as a matter of law as to the tinnitus treatment.” ROA 1666.

Under Delaware law, which the parties agree applies, a fiduciary cannot take a business opportunity for himself if: (1) the corporation is financially able to exploit the opportunity; (2) the opportunity is within the corporation’s line of business; (3) the corporation has an interest or expectancy in the opportunity; and (4) by taking the opportunity for his own, the corporate fiduciary will thereby be place in a position inimical to his duties to the corporation. Broz v. Cellular Information Systems (Del. 1996) 673 A.2d 148, 154-55. “No one factor is dispositive, and all factors must be taken into account insofar as they are applicable.”

Id. Whether or not a fiduciary has appropriated for himself something that in fairness should belong to his corporation is a question of fact “to be determined from the facts and surrounding circumstances existing at the time the opportunity arises.” Id. at 158-59. Defendants initially argued that plaintiff was unable to exploit the tinnitus opportunity due to financial constraints, but plaintiff has disputed that contention and defendants have abandoned it. Reply at 10 n.6. Instead, the parties chief dispute is whether the tinnitus opportunity is within plaintiff’s line of business.

Defendants argue undisputed facts establish that at the time of tinnitus opportunity, plaintiff’s line of business did not include stents, and it had no desire to develop or manufacture a tinnitus stent, as shown by its contemporaneous knowledge it could have done so and its failure to do so to date. SUF 16-17, 22, 34-36. David Ferrera, Chief Technology Officer of Balt Inc. at the time of his departure in May 2020 and former President and COO of Balt USA beginning in August 2016, declares he understood “Balt USA was not developing, manufacturing, or selling a stent to treat pulsatile tinnitus.” Ferrera Decl. (ROA 1652) ¶ 9. Ferrera further declares that during the same time, he “understood that Balt USA was focused on three priorities:

(i) lowering the manufacturing costs of the Optima Coil, (ii) improving and expanding its ischemic stroke portfolio, and (iii) customer service.” Id. ¶ 8. As an initial matter, the latter (¶ 8) does not establish SUF 22, i.e., “thus, Dr. Ferrera did not think Balt USA would pursue Dr. Stout’s idea.” Additionally, his declaration does not establish that Balt USA had no desire to develop such a stent, nor does it establish that none of the Balt entities were developing or manufacturing stents. Furthermore, Ferrera contradicted these statements during deposition in which he testified he thought Balt would have interest in Dr.

Stout’s tinnitus idea in January 2019 because it was an innovation he had “never heard of [] before.” ROA 1832 Ex. 93 at 29:12-30:2. Additionally, Ferrera admitted he “knew Balt made stents.” Id. at 25:19-24. Defendants also rely upon the testimony of Pascal Girin, Balt’s Chief Executive Officer, who testified that Balt USA was making two “coil” products during the first quarter of 2019. ROA 1637 Ex. 8 at 56:18-23. However, plaintiff’s manufacturing activities during a three-month period does not establish that stents, including a tinnitus stent, are outside plaintiff’s line of business.

Defendants also rely on the testimony of Ujwal Jalgaonkar, Vice President of Research and Development for Balt USA, who agreed that “Balt's medical devices are generally intended to treat hemorrhagic strokes, ischemic strokes, brain aneurysms, and peripheral vascular conditions[.]” ROA 1637 Ex. 7 at 128:17-23. However, this deposition excerpt lacks context and does not establish stents, including a tinnitus stent, are outside plaintiff’s line of business. Furthermore, in the same deposition, defendants’ attorney Mr.

Emory acknowledged that Mr. Jalgaonkar testified that stents were in Balt’s line of business. Id. at 138:19-25 (“Earlier today, you testified about general product categories that are within Balt's line of business. And so we talked about embolization coils, aspiration catheters, stents, stent retrievers, flow diverters, access devices, which was microcatheters, guide wires, and balloons, and then liquid embolics.”). Based on the above, the court finds the evidence presented by defendants insufficient to find the tinnitus treatment was not a Balt corporate opportunity at the time of Dr.

Stout’s disclosure. See Aguilar, supra, 25 Cal.4th at 845 (defendant moving for summary judgment must present evidence that would require a trier of fact not to find any underlying material fact more likely than not); Johnston v. Greene (Del. 1956) 121 A.2d 919, 924 (company has an interest or expectancy in an opportunity when there is “some tie” between the opportunity and “the nature of the corporate business”). The evidentiary burden does not shift to plaintiff, and the motion is denied as to Issue No.

1. ISSUE NO. 2: “The BosSTENT was conceived, created, and invented after the Individual Defendants left Balt and as a result, the Individual Defendants did not have a duty to disclose or assign such corporate opportunity, and therefore Balt’s Fourth Cause of Action fails as a matter of law as to the tinnitus treatment.” ROA 1666. As an initial matter, defendants argue undisputed facts establish the BosSTENT device is not based on any contribution of Dr. Stout. SUF 13- 15. Upon examination of the evidence supporting these factual assertions, the court finds defendants have met their initial burden and the burden thus shifts to plaintiff to produce evidence demonstrating the

existence of a triable issue of material fact. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar, supra, 25 Cal.4th at 850-51. Among other evidence plaintiff offers to dispute this issue, it points to email correspondence between Stout and Ferrera beginning in October 2018 in which Ferrera, then President and COO of Balt USA, reached out to follow up on Stout’s “questions and concerns [he had] for novel product ideas.” ROA 1831 Ex.

90. In December 2018, Ferrera reached out again seeking to “reconnect” to discuss a “a project.” Id. Stout replied that he was “interested in [Ferrera’s] thoughts on a device [Stout] thought of.” Id. In January 2019, during a “VIP Visit” to Balt, Stout disclosed his tinnitus treatment idea to Ferrera. ROA 1832 Ex. 91; SUF 4. Stout’s February 2019 tinnitus treatment with stent was among the “physician ideas presented to Balt in 2019” as reflected in a company slide deck. ROA 1832 Ex. 93 at 28:9-30:2. In December 2019, before Ferrera had left Balt, he continued discussions with Stout regarding the tinnitus stent treatment, stating his desire to “bring this idea to market” to which Stout provided further details, including the use of a “detachable stent.” ROA 1832 Ex.

97. In March 2020, Ferrera and Stout discussed building prototypes for the tinnitus opportunity Id. Ex. 93 at 81:8-82:1. In March 2020 email correspondence which included, among others, defendant Randall Takahashi, Balt’s Vice President of Manufacturing between August 2016 and March 2019 and defendants Dawson Le, Charles Yang, and Ferrera, a proposal to Stout was discussed as part of a “Tinnitus Op Plan.” Id. Ex.

99. A tinnitus stent product is also reflected in a cost modeling document distributed in May 2020 to, among others, Takahashi. Id. Ex.

98. It is undisputed that after defendant Sonorous was formed in 2012, Stout transferred his tinnitus patents to that entity in exchange for equity. Balt’s Statement of Additional Facts (“SAF”) 37; ROA 1832 Ex. 96 (“My conversation with Peter [Ferrera] a few weeks ago was to request the Assignment document [of the Stout patents] to allow for transfer/assignment of the first device to another entity.”). Additionally, Takahashi believed the braided stent, about which plaintiff has raised a triable issue (ROA 1939), “was part of” the development of “and helpful to make” the BosSTENT.

ROA 1819 Ex. 34 at 143:8-13; accord id. at 152:6-153:3. Viewing the evidence in the light most favorable to the party opposing summary adjudication, as the court must, plaintiff has raised a triable issue of fact, and it is for a jury to decide to what extent defendants were involved in the development of the BosSTENT while employed by Balt. Accordingly, summary adjudication of Issue No. 2 is denied.

ISSUE NOS. 3-7: As resolution of each of these issues in defendants’ favor is dependent upon defendants’ successful adjudication of Issue Nos 1-2, i.e., plaintiff has no lawful claim as to Stout’s tinnitus treatment or the BosSTENT, summary adjudication of all remaining issues must be denied.

Request for Judicial Notice

Defendants’ unopposed request for judicial notice of Exhibits A-L (ROA 1645) is granted. Cal. Evid. Code §§ 452(c), (h), 453.

Evidentiary Objections

Plaintiff’s Objection No. 1 is overruled; the court finds the evidence relevant. Plaintiff’s Objection No. 2 is overruled; Ferrera has adequate foundation and personal knowledge to speak to the scope of Balt USA’s business, expressly limited by his understanding during the time he was employed. Objection No. 3 was not material to the disposition of the motion. Civ. Proc. Code § 437c(q).

Plaintiff to give notice.

Electrocautery

Defendants Randall Takahashi, David Ferrera, Dawson Le, Treadstone Medical LLC, M4D LLC, Infinity Neuro LLC, Vtail Medical, LLC, Sonorous Neurovascular, Inc., and RC Medical, LLC move for summary adjudication against plaintiff Balt USA, LLC as to the following issues: (No. 1) The electrocautery device invented by third-party physicians Drs. Sunenshine and Hirsch of First Pass LLC cannot constitute a corporate opportunity, because the device is not within Balt USA, LLC’s line of business and Balt USA, LLC did not have interest or expectancy in the electrocautery device, and therefore the Fourth Cause of Action for breach of fiduciary duty fails as a matter of law as to the electrocautery device; (No. 2) The electrocautery device invented by third-party physicians Drs.

Sunenshine and Hirsch of First Pass LLC was disclosed after the Individual Defendants left Balt USA, LLC, and therefore the Fourth Cause of Action fails as a matter of law as to the electrocautery device because the Individual Defendants did not have a duty to disclose or assign this corporate opportunity to Balt USA LLC; and (Nos. 3-7) Since Balt USA does not have a lawful claim to electrocautery device, the Fifth, Sixth, Seventh, Ninth, and Tenth Causes of Action fail as a matter of law as to the electrocautery device.

For the following reasons, defendants’ motion is GRANTED.

Legal Authority

A defendant seeking summary judgment bears its burden of showing that a cause of action has no merit if the defendant shows that one or more elements of the cause of action cannot be established, or that the defendant has a complete defense to the cause of action. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.

If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840. If the defendant meets this initial burden, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar, supra, 25 Cal.4th at 850-51.

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends the cause of action has no merit, there is no affirmative defense to the cause of action, there is no merit to an affirmative defense as to any cause of action, there is no merit to a claim for damages, as specified in Civil Code section 3294, or that one or more defendants either owed or did not owe a duty to the plaintiff. Civ. Proc. Code § 437c(f)(l). A motion for summary adjudication shall be granted only if it completely disposes

of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. Id. A motion for summary adjudication proceeds in all procedural respects as a motion for summary judgment. Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 453.

The moving party’s evidence is to be strictly construed, while the opposing party’s evidence is to be liberally construed. Johnson v. Super. Ct. (2006) 143 Cal.App.4th 297, 308; see also Los Angeles Unified School Dist. v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 492 (declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party). The trial court may not weigh the evidence or evaluate credibility. Binder v. Aetna Life Insurance Co. (1999) 75 Cal.App.4th 832, 840. “The court must consider not only the bare evidence, but also the reasonable inferences deducible from the evidence, and determine whether the evidence is sufficient to support a potential judgment in favor of the opposing party.” Id.

Procedural Dispute

The parties initially dispute whether the motion is procedurally proper because it does not purport to “completely dispose[] of a cause of action.” C.C.P. § 437c, sub. (f)(1). Defendants argue a party may move for summary adjudication challenging separate and distinct wrongful acts even though they are, as here, combined with other wrongful acts alleged in the same cause of action. Specifically, defendants’ aim the motion at the alleged misconduct related to the electrocautery device and cause of action nos. 4-7 and 9-10, to the extent those claims rely upon the alleged misconduct related to the electrocautery device. See TAC ¶¶ 94-95.

Among other things, plaintiff’s breach of fiduciary duty claim (cause of action no. 4) concerns the corporate opportunities allegedly usurped by defendants. TAC ¶¶ 137-141. Among those opportunities are several “undisclosed inventions,” which include the electrocautery device. Id. ¶¶ 112-114. While the court understands plaintiff’s argument the product development projects were related and concern some common facts, they appear sufficiently distinct such that they can be considered separate wrongful acts for which summary adjudication is available despite their inclusion in the same cause of action.

As explained in Lilienthal & Fowler v. Superior Ct. (1993), the court finds the interpretation of the code that would permit such motions best serves the legislative purpose of achieving time and cost savings. 12 Cal. App. 4th 1848, 1854 (“To rule otherwise would defeat the time and cost saving purposes of the amendment and allow a cause of action in its entirety to proceed to trial even where, as here, a separate and distinct alleged obligation or claim may be summarily defeated by summary adjudication.)" In other words, each of the allegedly usurped corporate opportunities carried with it a corresponding obligation such that the court may treat them separately for purposes of summary adjudication.

While the court is aware Lilienthal has been questioned and distinguished, the court finds no basis to do so here as none of the authorities appear analogous. See, e.g., Bagley v. TRW, Inc. (1999) 73 Cal. App. 4th 1092, 1095 n.2 (dicta in case concerning substantively duplicative summary adjudication motions); Catalano v. Superior Ct. (2000) 82 Cal. App. 4th 91, 93-94 (summary adjudication of four of five issues supporting punitive damages was prohibited).

Merits

The court finds the corporate opportunity timing issue dispositive and therefore addresses it first. ISSUE NO. 2: “The electrocautery device invented by third-party physicians Drs. Sunenshine and Hirsch of First Pass LLC was disclosed after the Individual Defendants left Balt USA, LLC, and therefore the Fourth Cause of Action fails as a matter of law as to the electrocautery device because the Individual Defendants did not have a duty to disclose or assign this corporate opportunity to Balt USA LLC.”

ROA 1670. It is undisputed the electrocautery device was conceived of and was patented beginning in 2007 through 2021 by third parties, Drs. Kevin Hirsch and Peter J. Sunenshine, through their company First Pass, LLC. Defendants’ Statement of Undisputed Material Fact (“SUF”) (ROA 1897) 1-8. In 2020, defendant David Ferrera, Chief Technology Officer of Balt Inc. at the time, partnered with third party William Colone to form a venture fund for medical devices later registered as the “Quantum Fund.”

SUF 11-12. It is undisputed that in February 2020, Drs. Sunenshine and Hirsch discussed with Mr. Colone two devices the doctors had been developing, i.e., the electrocautery device, and an IVC filter removal device. SUF 14-15. At that time, Colone informed the doctors he was not interested in developing the electrocautery device. SUF 16. Colone did not disclose his February 2020 conversation with the doctors to Ferrera, including the two devices discussed, or any related information. SUF 17. Colone and the doctors did not discuss the electrocautery device again until June 1, 2020, when Colone proposed his potential involvement and the parties set a call for the next day to discuss it.

SUF 26-28. After Colone signed an NDA, the doctors referred him to their design company to obtain additional information, which Colone thereafter obtained. SUF 29-30. On July 14, 2020, after completing his due diligence, Colone advised the doctors that he wished to add their company to the Quantum Fund portfolio. SUF 31. At some point during Colone’s due diligence, he informed Ferrera of the electrocautery device. Id. At no point prior to or while Colone conducted his due diligence did Ferrera have any written or oral communications with Dr.

Sunenshine about the electrocautery device or otherwise. SUF 32. It is undisputed that Ferrera’s employment with Balt ceased on May 29, 2020. SUF 10. It is also undisputed the employment with Balt of the other individual defendants, i.e., Dawson Le, Charles Yang, and Randall Takahashi ended no later than October 2019. SUF 9.

Based on the above, the court finds defendants have met their initial burden to show no triable issue of material fact exists as to the electrocautery device and the burden shifts to plaintiff to produce admissible evidence demonstrating the existence of a triable issue of material fact as to the electrocautery device. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar, supra, 25 Cal.4th at 850-51.

As an initial matter, while plaintiff purports to dispute that the Quantum Fund was not established until 2020, that Colone rejected the electrocautery device in February 2020, and that he and the doctors did not discuss it again until June 2020, plaintiff’s evidence does not show any such factual disputes exist. SUF 12, 26-28.

As to the all-important timing issue, plaintiff argues “[d]ocuments from Ferrera’s files indicate that he was aware of the electrocautery device as early as February 2020.” SUF 16. Plaintiff’s Statement of Additional Material Fact (“SAF”) (ROA 1897) 45-46 are relied upon for support. SAF 45 states “To pitch their idea to Colone, Drs. Sunenshine and Hirsch sent Colone a presentation about First Pass and the device, which they called the HemoStop Rx [sic] at the time.” SAF 46 states “Colone forwarded this presentation to Ferrera in February 2020.

Ferrera had multiple copies of this presentation in his possession, all dated February 2020.” Both SAF 45 and 46 rely on the same three documents, i.e., Exs. 136- 138. Per the Kohan Declaration, Ex. 136 “is a true and correct copy of a PowerPoint presentation titled ‘HemoStop Bx,’ which was created on February 6, 2020, and which was produced in this action on October 25, 2024 pursuant to the Court’s October 16, 2024 Order requiring production of Dave Ferrera’s laptops (ROA 855).” ROA 1879 ¶ 21.

Exhibits 137-138 are identified as true and correct cop[ies] of the documents produced in the action bearing Bates number[s] M4D- 0074695” and “RCM1272865,” respectively. Id. ¶¶ 22-23.

Exhibits 136-138 each contain the same presentation created by the doctors that was sent to Colone and each are preceded by a single page, which contains substantially similar information to the following:

Starting Bates RCM1272865 Custodians Colone, Bill;Ferrera, Dave;RC Medical Document Type EDoc File created date 2/6/2020 File created time 3:23:41 PM File last modified date 6/3/2020 File last modified time 10:30:03 AM

Ex. 136.

Defendants have objected to these documents, including the initial “metadata” pages, which precede the actual documents that were produced in the action. ROA 1909 (Objection No. 1).The court observes the metadata pages do not bear the bates numbers plaintiff has identified and plaintiff offers no explanation as to how these pages came to exist and how these “exhibits,” which are, notably, unattached to any communications to or from anyone, came to be compiled. Accordingly, the court will sustain defendants’ Objection No. 1 on foundation and hearsay grounds.

The court further finds the exhibits inadmissible because no attempt has been made to authenticate them. See, e.g., Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 855 (documents obtained in discovery and used to support or oppose a motion for summary judgment must be authenticated, admissible, and nonhearsay); Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144–1145 (“a party cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact’”); Guz v.

Bechtel National, Inc. (2000) 24 Cal.4th 317, 356 (once defendant meets initial burden on summary judgment, plaintiff must respond with admissible evidence raising a triable issue of material fact); Cal. Evid. Code, § 1401 (to be received in evidence, writing must be authenticated). However, even if the exhibits were admissible, and the court accepted the metadata content as true, the exhibits do not create a triable issue of fact regarding corporate opportunity as to the electrocautery device.

As plaintiff admits, the presentation contained in Exs 136-138 was sent by Drs. Sunenshine and Hirsch to Colone. SAF 45. As discussed above, the undisputed evidence shows Colone was first sent the presentation in June 2020. SUF 28-30. Indeed, Colone identifies the same presentation contained in Exs. 136-138 as part of “the detailed information about the electrocautery device (also referred to as the HemoStop Rx device at that time), including, among other things, an overview presentation of the device and market opportunity, a prototype presentation, technical drawings, as well as the design history file” that he received in June 2020. ROA 1662 ¶ 8 Exs. 3-5.

Plaintiff provides zero evidence that “metadata,” and especially metadata of unknown origin, that reflects a “file created date” of February 6, 2020, relates in any way to when Ferrera or anyone else received, or “forwarded” the document and there is no evidence to support such an inference. Per Merriam Webster, “create” means “to bring into existence.” See https://www.merriam-webster.com/dictionary/create. Based on the evidence presented, no reasonable trier of fact could find the “file created date” of the presentation reflects the date that document was transmitted, especially considering that each of the metadata pages also include a “last modified date” of June 3, 2020.

Exs. 136-138. Furthermore, there is no evidence Ferrera was ever included at any stage of the months-long discussion between the doctors and Colone regarding the electrocautery device, even after Ferrera left Balt. See ROA 1660 Exs. G-N. Plaintiff’s argument that defendants’ apparent success at creating an ethical wall between the electrocautery device discussion and Ferrera prior to his departure at Balt is evidence of his liability is counter intuitive and not persuasive. SAF 43. Additionally, that Ferrera and Sunenshine had a “longstanding relationship” (SAF 39) is irrelevant and immaterial to any corporate opportunity as to the electrocautery device, as are most of the facts offered in the SAF.

Accordingly, plaintiff has failed to show a triable issue of fact exists as to this issue. SUF 31-32. Summary adjudication of this issue as to individual defendants Dawson Le, Charles Yang, and Randall Takahashi is granted as plaintiff fails to even argue that the corporate opportunity was disclosed prior to February 2020, i.e. after each of these defendants ceased their employment with Balt. SUF 9; GAB Business Services, Inc. v. Lindsey & Newsom Claim Services, Inc. (2000) 83 Cal.App.4th 409, 421 (disapproved on other grounds by Reeves v.

Hanlon (2004) 33 Cal.4th 1140, 1154 (fiduciary duties end when employment ends). As to Ferrera, summary adjudication of this issue is granted as plaintiff has failed to show the corporate opportunity was disclosed to him prior to his departure from Balt. In other words, there was no Balt corporate opportunity as to the electrocautery device that Ferrera could usurp. GAB Business Services, Inc., supra, 83 Cal.App.4th at 421.

ISSUE NO. 1: “The electrocautery device invented by third-party physicians Drs. Sunenshine and Hirsch of First Pass LLC cannot constitute a corporate opportunity, because the device is not within Balt USA, LLC’s line of business and Balt USA, LLC did not have interest or expectancy in the electrocautery device, and therefore the Fourth Cause of Action for breach of fiduciary duty fails as a matter of law as to the electrocautery device.” ROA 1670.

For the reasons discussed in Issue No. 2, supra, this issue is moot. There was no Balt corporate opportunity as to the electrocautery device that

defendants could usurp. GAB Business Services, Inc., supra, 83 Cal.App.4th at 421.

ISSUE NOS. 3-7: Since Balt USA does not have a lawful claim to the electrocautery device, the Fifth, Sixth, Seventh, Ninth, and Tenth Causes of Action fail as a matter of law as to the electrocautery device. ROA 1670.

For the reasons discussed in Issue No. 2, supra, summary adjudication of these issues is granted; Balt USA has no lawful claim which can support these claims. Request for Judicial Notice Defendants’ unopposed request for judicial notice of Exhibits 1, 6-8, and A-F (ROA 1664) is granted. Cal. Evid. Code §§ 452(c), (h), 453.

Evidentiary Objections

Plaintiff’s Objection No. 3, as to Sunenshine Decl. ¶ 11 is overruled. ROA 1874, 1903. Objection Nos. 1-2 pertain to the tinnitus stent device only and are part of the court’s ruling on that motion.

For the reasons discussed above, defendants’ Objection No. 1 as to exhibits 136-138 is sustained on foundation and hearsay grounds. The court also finds the exhibits have not been authenticated are thus inadmissible.

Defendants to give notice. 113 David Goldman v. LBG Real Estate Companies, LLC

2025-01498037 1. Motion - Petition to Determine Validity of Third- Party Claim of LBG Medford, LLC (ROA#154) 2. Motion - Petition to Determine Validity of Third- Party Claim of LBG Medford DN, LLC (ROA#155) 3. Motion - Petition to Determine Validity of Third- Party Claim of LBG Chula WM, LLC (ROA#157) 4. Motion to Seal (ROA#141)

THIRD PARTY CLAIMS:

Plaintiff/Judgment Creditor David Goldman’s Petitions for Hearing to Determine the Validity of Third-Party Claims filed by (1) LBG Chula WM, LLC; (2) LBG Medford, LLC; and (3) LBG Medford DN, LLC are DENIED as untimely filed. Accordingly, the Court is without jurisdiction to hear the Petitions.

Under the Enforcement of Judgments Law (EJL) (Code Civ. Proc. [CCP] §§ 680-010-724.726), “[w]here personal property has been levied upon under . . . a writ of execution,” “[a] third person claiming ownership or the right to possession of property may make a third-party claim under this chapter . . . if the interest claimed is superior to the creditor’s lien on the property.” (CCP, § 720.110, subd. (b).)

“[E]ither the creditor or third person may petition the court for a hearing to determine the validity of the third-party claim and the proper disposition of the property that is the subject of the claim,” so long as the petition is filed