Diyar Irvine, LLC vs. Elzoheiry

forfeiting important rights through non-representation, such as having its responsive pleading stricken and default entered. (See Rogers v. Sonoma County Municipal Court, supra, 197 Cal.App.3d at p. 1318; Ferruzzo v. Superior Court (1980) 104 Cal.App.3d 501, 504.)

Defendant is ordered to obtain counsel and file evidence thereof with the court by September 30, 2026.

The Clerk is ordered to update the proposed order to reflect the following:

- Check the box in section 5(a); - In section 7, strike the outdated information; and - In section 13, add Defendant is ordered to obtain representation and file evidence thereof with the court by September 30, 2026.

This order shall become effective upon the filing of the proof of service of the signed order on the Client.

Moving Counsel shall give notice of this ruling.

6 Diyar Irvine, TENTATIVE RULING: LLC vs. Elzoheiry Objections to Referee’s Reports and Recommendations

Cross-Defendant Toorak Capital Partners LLC (Toorak) objects in part to Report and Recommendation Nos. 212 and 213 issued by Discovery Referee, Judge Lina S. Marks (Ret.). For the following reasons, the objections are OVERRULED.

On January 12, 2024, at an Order to Show Cause re Appointment of Discovery Referee, the Court appointed Honorable Gail Andler as a Discovery Referee. (ROA 515.) Judge Andler was not able to take this matter, so on February 9, 2024, the Court appointed Judge Linda Marks (Ret.) as Discovery Referee. (ROA 554.)

The Report and Recommendation of the Referee is advisory. (Code Civ. Proc., § 644.) “The court has broad discretion to determine the best method for considering a party’s challenges to the referee’s findings, and the court is not required to hold a hearing or conduct a de novo analysis of the underlying arguments. [Citations.] In its review, the court should give the referee’s findings ‘ “great weight” ’ and focus on the parties’ objections to those findings. [Citation.] We examine the trial court’s decision to accept the referee’s

recommendation for an abuse of discretion. [Citation.]” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 589.) “Absent a contrary indication on the record, we are required to accept the court’s statements and presume the court complied with its statutory duties.” (Id. at p. 590; accord, Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 799.)

“ ‘Although the scope of civil discovery is broad, it is not limitless.’ [Citation.] Discovery devices must ‘be used as tools to facilitate litigation rather than as weapons to wage litigation.’ [Citation.] A party seeking to compel discovery must therefore ‘set forth specific facts showing good cause justifying the discovery sought.’ [Citations.] To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” (Digital Music News LLC v.

Superior Court (2014) 226 Cal.App.4th 216, 224, disapproved, on other grounds, as discussed in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8 [disapproving line of cases, including Digital Music, to the extent they held a party seeking discovery of private information must always establish compelling interest or compelling need without regard to other considerations as stated in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 34-35].)

Report and Recommendation 212 (ROA 1948) concerns Toorak’s motion for sanctions as to Plaintiffs Diyar Irvine, LLC (“Diyar”), Green City Development, LLC (“Green City”), Sadek El Sewedy and Ahmed El Sewedy (collectively “Plaintiffs”) for alleged violation of Report and Recommendation Nos. 203 and 211 for failure to provide specific facts supporting Plaintiffs’ Privilege Log. Toorak sought evidentiary sanctions that Plaintiffs be precluded from introducing any evidence regarding Rutan at trial or pretrial proceedings, including any attempt to rebut the presumption that Plaintiffs knew what their counsel knew. The Discovery Referee recommended that Toorak’s motion be denied.

By way of background, on August 21, 2024, Toorak moved to compel Plaintiffs to (1) produce documents listed on their July 2024 privilege log, and/or (2) provide another privilege log providing more factual information to establish the claims to privilege. (ROA 711.) The Discovery Referee granted that motion in part in Report & Recommendation No. 203, and the Court adopted that Report & Recommendation on October 30, 2025. (ROAs 1082, 1499.)

Plaintiffs produced a supplemental privilege log on April 18, 2025, and a second supplemental privilege log on June 16, 2025.

On July 21, 2025, Toorak moved to compel a further supplemental privilege log (ROA 1354) and also moved in the alternative for evidentiary sanctions (ROA 1364). The Discovery Referee filed Report & Recommendation Nos. 210 and 211 on November 19, 2025, granting in part Toorak’s motion for a supplemental privilege log but denying Toorak’s alternative request for a discovery sanction or compelling Plaintiffs to produce all Rutan emails. (ROA 1543, 1544.)

Plaintiffs produced another supplemental privilege log on December 15, 2025. On January 16, 2026, Toorak filed two motions to compel: 1) a motion to preclude Plaintiffs from introducing certain evidence or compelling Plaintiffs to produce all Rutan emails, and 2) a motion for sanctions for violation of Report and Recommendation Nos. 203 and 211. . The Discovery Referee filed Report & Recommendation Nos. 212 and 213. (ROAs 1948 and 1949.)

Report & Recommendation 212 concerned Toorak’s motion for order for evidentiary sanctions precluding Plaintiffs from introducing certain evidence. The Discovery Referee reviewed Plaintiffs’ operative privilege log containing almost 500 entries and Toorak’s argument that Plaintiffs have consistently added no specific facts and instead repeat the same boilerplate. The Discovery Referee noted that the operative log provided the names and their capacities and agency relationships, whereas prior logs identified some people only broadly as “tax professionals” such they “could have been arms-length third parties whose inclusions rendered a communication nonconfidential.” (ROA 1948.)

The Discovery Referee concluded that the current log clearly specifies that senders or recipients were agents of Plaintiffs or Rutan and provided more detail as to the subject matter of each communication. The Discovery Referee also reviewed and disagreed with Toorak’s argument that Plaintiffs violated the prior Report & Recommendations by adding no specific facts as to how the communications reflect a legal opinion, noting that the log provided additional context for each communication and enabled assessment of whether a communication was confidential.

The Discovery Referee disagreed with Toorak’s arguments that Plaintiffs did not provide facts to explain how disclosure to a third party did not destroy the privilege and that Plaintiffs failed to explain how certain conduct like obtaining real estate records is privileged. The Discovery Referee “closely assessed each challenged entry listed

in Toorak’s Separate Statement” and addressed each of Toorak’s challenges.

Toorak objects to Report & Recommendation 212 in that the Discovery Referee found that Plaintiffs could claim privilege over communications with third parties including Kaz Investments Management, Shady Elzoheiry, and/or Vanessa Bastian.

The Discovery Referee found that Plaintiffs complied with Report & Recommendation No. 211 by confirming that Shady Elzoheiry was Plaintiffs’ agent during the period around September 5, 2016, and have confirmed the scope of Shady’s agency relationship. Thus, the Discovery Referee found that Plaintiffs have shown that including Shady on the communications at issue was reasonably necessary for accomplishing a purpose of the lawyer’s retention.

Toorak challenges these findings for lack of evidence and contend that Plaintiffs’ claim of agency are illogical. However, the Discovery Referee’s Report & Recommendation on this issue is sufficiently supported by a reasoned factual and legal basis.

Report and Recommendation 213 (ROA 1949) concerns Toorak’s motion to preclude Plaintiffs from introducing any evidence at trial regarding Rutan or compelling Plaintiffs to produce all Rutan emails. The referee recommended denying Toorak’s motion.

Toorak first objects to the “Discovery Referee’s conclusions in R&R 213 section II, in particular at footnote 3 (referring to and incorporating prior findings in R&R 210), section IV.2.i.b. including footnote 12, and section V.2) and 3).” (Objections at 4:9-11.) Toorak contends that the Discovery Referee erred in not finding that Plaintiffs had impliedly waived the attorney-client privilege in the withheld documents by putting squarely at issue in this lawsuit whether Sadek Elsewedy (and thus Rutan & Tucker) knew about Shady Elzoheiry’s allegedly unauthorized activities. According to Toorak, Plaintiffs have expressly pleaded that Sadek knew nothing and was unable to discover any alleged fraud because of Elzoheiry’s concealment. Thus, Toorak contends it is entitled to all withheld emails.

The Court finds that the Discovery Referee thoroughly and correctly addressed Toorak’s arguments regarding implied waiver and meaningfully discussed two relevant cases - Solin v. O’Melveny & Myers, LLP (2001) 89 Cal.App.4th 451 and Chicago Title Ins. Co. v. Super. Ct. (1985) 174 Cal.App.3d 1142 – in connection with those arguments.

Toorak also argues that the Discovery Referee incorrectly found that Plaintiffs did not waive privilege by disclosing a significant part of communications. The Discovery Referee construed the term “the communication” to refer to each individual email, whereas Toorak contends that “the communication” should be construed to mean the entire email chain, taken together. (ROA 1949 at 16:11-20.) The Court finds the Discovery Referee’s analysis to be well reasoned.

Finally, Toorak contends that the Discovery Referee incorrectly found that any challenge to the documents listed in entries 1-80 of Plaintiffs’ privilege log to be time-barred. However, the Discovery Referee noted that “Toorak’s reply did not address the arguments that certain challenges are time-barred.” The Court has reviewed Toorak’s reply and confirmed the same.

Toorak’s objections are overruled.

Toorak shall give notice of this ruling.

7 Irvine TENTATIVE RULING: Westpark Plaza LLC vs. Counsel Constantine Panagotacos and James Higgins of Dunn & Diesel 1 LLC Panagotacos LLP move to be relieved as counsel for the following Defendants: Diesel 1 LLC, 100 Percent Health Management, LLC, Nigel Stobart, Kim Stobart, Brandon Livingood, and Rebecca Livingood.

The court GRANTS each motion.

The court finds that Moving Counsel has complied with the requirements of California Rules of Court, rule 3.1362, and has complied with the requirements of this court’s 6/17/26 order continuing the instant motions.

The court sets an order to show cause for October 27, 2026, at 9:00 a.m. in this department for Defendants 100 Percent Health Management, LLC and Diesel 1, LLC regarding their status as unrepresented entities.

Within 15 days of receiving the signed Form MC-053 back from the court, Moving Counsel shall serve Defendants with the signed Form MC-053 and notice of this ruling, in the manner described in Rules of Court rule 3.1362(d).