Carmona vs. Gersten

strikes $16,752.02 from the Memorandum of Costs.

Plaintiffs are ordered to serve notice.

B. Motion to Strike re: Zogob Memorandum of Costs

The Court denies Plaintiffs Michael P. Farah, individually and doing business as Farah Advisory Services of Newport Beach and The Eric Wyser Charitable Trust (hereinafter collectively referred to as Plaintiffs”) Motion to strike portions of Defendant Mitchell Zogob’s Memorandum of Costs at ROA 1293.

At issue is expert witness fees.

Expert witness fees are generally not allowable. (See Olson v. Automobile Club of Southern Calif. (2008) 42 Cal.4th 1142, 1149-1150, 1156-1157.)

However, if a section 998 Offer is made and rejected, the Court has discretion to award expert witness costs.

The award of expert witness expenses where there is a failure to accept a pretrial CCP § 998 offer is discretionary, not automatic. (See Santantonio v. Westinghouse Broadcasting Co., Inc. (1994) 25 Cal.App.4th 102, 121-124; Rouland v. Pacific Specialty Ins. Co. (2013) 220 Cal.App.4th 280, 289.)

The court has discretion to award reasonable fees for time reasonably spent in preparation for trial as well as on the witness stand. (Santantonio v. Westinghouse Broadcasting Co., Inc. (1994) 25 Cal.App.4th 102, 123-124; Michelson v. Camp (1999) 72 Cal.App.4th 955, 974.)

The expert witness fee recovery under CCP § 998 is limited to the “reasonable and customary hourly or daily fee for the actual time consumed in the examination of that witness by any party attending the action or proceeding.” (Gov. Code § 68092.5(a); Michelson v. Camp (1999) 72 Cal.App.4th 955, 975.)

Here, in opposition, Mr. Lee provides a declaration indicating that he charges $770 per hour for deposition and $710 for trial. (Mr. Lee Decl., ¶3, Ex. A.) He includes invoices. (Id.)

Plaintiffs fail to file a reply and do not dispute the validity/reasonableness of the 998 Offer; nor have they challenged the fees after learning the hourly rate and activities undertaken.

The Court in its discretion finds that the expert witness fees requested are reasonable and necessary.

Therefore, the Motion is denied.

Defendants shall jointly prepare a proposed amended judgment to include the costs.

Plaintiffs are ordered to serve notice.

107 2025-01497783 1. Motion for Summary Judgment and/or Adjudication 2. Case Management Conference 3. Order to Show Cause re: Failure to Comply re:CCRC 3.110b

Carmona vs. The motion by Plaintiff Benjamin Carmona (“Plaintiff”), individually, and as Trustee of the Gersten Benjamin Carmona and Lindsay Carmona Revocable Trust, for summary adjudication on the first cause of action for involuntary dissolution, is granted.

Procedural Issues Plaintiff’s request for judicial notice (ROA 56) is granted. (Evid. Code § 452, subd. (d).)

Defendant Ehud Gersten’s (“Defendant”) objection no. 6 is sustained to the extent the declarant’s testimony consists of an improper legal conclusion. (See People v. Clay (1964) 227 Cal.App.2d 87, 98.) The remainder of Defendant’s objections are overruled. Plaintiff’s objections are overruled.

Merits Plaintiff moves for summary adjudication on the first cause of action for involuntary dissolution of nominal defendant, Perch Financial, LLC (“Perch”).

Legal Standard “A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) “Summary adjudication is properly granted when there is no triable issue of material fact as to a cause of action and the moving party is entitled to judgment as a matter of law.” (Barnes v. Black (1999) 71 Cal.App.4th 1473, 1477.) The motion for summary adjudication must completely “dispose” of “a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

Where a plaintiff seeks summary adjudication, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. (Code Civ. Proc. § 437c, subd. (p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal. App. 4th 383, 388.) This means that a plaintiff who bears the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. (LLP Morg. v. Bizar (2005) 126 Cal. App. 4th 773, 776.) If plaintiff meets this burden, the burden then shifts to the defendant “to show that a triable issue of one or more material facts exists as to that cause of action.” (Code Civ. Proc. § 437c, subd. (p)(1).)

Involuntary Dissolution (Corp. Code § 17707.03) Corporations Code section 17707.03 provides, in relevant part, pursuant to an action brought by “any manager” or “any member or members” of a LLC, “a court of competent jurisdiction may decree the dissolution of a limited liability company whenever any of the events specified in subdivision (b) occurs.” (Corp. Code, § 17707.03, subd. (a).) Subdivision (b), in turn, specifies various events, including, “[t]he management of the limited liability company is deadlocked or subject to internal dissension.” (Corp. Code, § 17707.03, subd. (b)(4).) A suit for judicial dissolution may be avoided by “the other members” by “purchasing the membership interests owned by the members so initiating the proceeding...” (Corp. Code, § 17707.03, subd. (c)(1).)

Here, the Court find there is no triable issue of material fact on (b)(4), that the “management of the limited liability company is deadlocked or subject to internal dissension.” Although the statute does not define “internal dissension,” courts have found it exists (in the context of corporations) where “there were several substantial areas of disagreement existent between the factions in [the corporation],” and “discord” over assets, hiring and firing, and interference with access to corporate assets. (See Fuimaono v.

Samoan Congregational etc. Church of Oceanside (1977) 66 Cal.App.3d 80, 84; Buss v. J. O. Martin Co. (1966) 241 Cal.App.2d 123, 136; Reynolds v. Special Projects, Inc. (1968) 260 Cal.App.2d 496, 501 [affirming interlocutory order for dissolution where record showed “at least two substantial areas of disagreement between the shareholders,” including claim that the defendant “had improperly diverted corporate funds to his own use”].)

Here, it is undisputed that Perch is a manager-managed LLC, of which Plaintiff and Defendant are the only managers of Perch. Perch was founded by Plaintiff and Defendant, and has no passive investors. Perch is governed by the “Amended and Restated Operating Agreement of Perch Financial, LLC.” Plaintiff’s trust and Defendant’s trust are each 50% members of Perch. Perch’s operating income is derived through commissions. Defendant is no longer registered with a FINRA registered Broker-Dealer. Defendant’s “last significant deposit” into Perch’s account occurred in August of 2025, and ceased entirely in October of 2025.

Perch, through Plaintiff, has suspended distributions to Defendant, despite Defendant’s demand that he is still entitled to a 50/50 share of the distributions. (“DF” no. 21.) Several emails have been exchanged between the parties expressing Plaintiff’s belief that his business relationship with Defendant was no longer viable. Defendant has made allegations against Plaintiff and Perch’s COO in a formal FINRA arbitration. Perch’s commission revenue is 50% of what it was a year ago.

Moreover, the pleadings reflect that both Plaintiff and Defendant are accusing each other of breaches of fiduciary duty, self-dealing, and other tortious conduct. Perhaps the parties’ discord is best exemplified by Defendant’s own additional, material facts, in which Defendant makes, among other claims, that: Plaintiff is holding funds belonging to Defendant in his personal bank account; Plaintiff continues to receive commissions to his personal bank account; Plaintiff told Perch’s employees to “strip” Defendant of access to Perch’s email, company website, and client-facing systems; and, Plaintiff has been working with other persons to “develop a plan to remove [Defendant] from Perch.”

In his opposition, Defendant proffers a slew of reasons as to why this motion should be denied, but none of the arguments are persuasive. Defendant claims the “personal hostility” between Plaintiff and Defendant “is insufficient,” because “Perch’s ongoing operations are not untenable.” (Opp’n at pp. 15-16, citing Stumpf v. C.E. Stumpf & Sons, Inc. (1975) 47 Cal.App.3d 230, 235.) However, section 17707.03 does not require any finding of fault, blame, or a showing that someone acted without “unclean hands” in order to decree a judicial dissolution.

Further, involuntary dissolution of an LLC is a remedy provided by statute. Generally, equitable defenses (e.g. unclean hands) cannot defeat statutory claims, even if the court may place equitable limitations on how it fashions the remedy. (See Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d 122, 134 [“Equity follows the law and when the law determines the rights of the respective parties, a court of equity is without power to decree relief which the law denies”]; Trahan v.

Trahan (2002) 99 Cal.App.4th 62, 78 [following motion for corporation dissolution and exercise of option to buy out movants’ interest, trial court could place equitable limitations on the buy-out procedure].)

Defendant’s reliance on Stumpf is wholly misplaced, because Stumpf involved an effort by a minority shareholder to dissolve a corporation with three shareholders. In reaching its holding, Stumpf recognized that, when corporate dissolution is sought by a minority shareholder, “the danger of minority abuse was evidently recognized and dealt with by the Legislature,” such that the “minority must persuade the court that fairness requires drastic relief under section 4651, subdivision (f)...” (Stumpf v. C.E. Stumpf & Sons, Inc. (1975) 47 Cal.App.3d 230, 235.) Stumpf has no application to the facts, here, because Perch is a manager-managed LLC consisting of the two members and two managers; there is no

threat of “minority abuse.”

Nor is there any merit to Defendant’s argument that this motion is “not ripe,” because Perch is a “necessary and indispensable party.” (Opp’n at pp. 17-18.) Defendant fails to cite any authority showing that an LLC—with two members and two managers, all of whom are before the court—must appear in its own capacity, when the procedural reality is that Plaintiff and Defendant are the only two managers and members that have any ownership interest in Perch. In any event, Defendant waived this objection by failing to raise it by demurrer or in his answer. (Code Civ. Proc., § 430.10, subd. (d).)

Finally, the Court finds the discretionary provision of CCP section 437c, subdivision (e), is not applicable. No continuance is warranted because the pending discovery does not describe evidence essential to opposing the motion, given the Court’s reasons for granting the motion. (Code Civ. Proc., § 437c, subd. (h).)

The OSC is discharged. The case management conference is continued to December 14, 2026 at 10:00 a.m. in Department C27.

Plaintiff shall give notice of the ruling.

108 2024-01445758 1. Demurrer to Complaint 2. Motion to Strike Complaint Avesta Aesthetics 3. Case Management Conference Inc. vs. Ford The demurrer of Defendants Laleh Ford, Dr. Kaveh Karandish, and CDM Medical, Inc. to plaintiff Avesta Aesthetics Inc.’s first amended complaint (“FAC”) is overruled. [ROA # 73.]

Defendants motion to strike is granted without leave to amend as to paragraphs 54, 63, and 74; it is granted with 15 days leave to amend as to paragraph 75. [ROA #69.]

The case management conference is continued to December 14, 2026 at 10:00 a.m. in Department C27.

Moving party is ordered to give notice.

109 2024-01445914 1. Case Management Conference

CDM Medical, Inc. The case management conference is continued to December 14, 2026 at 10:00 a.m. in vs. Avesta Department C27. Aesthetics Inc.