- MOTION TO APPOINT RECEIVER
- MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES
- MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES
- MOTION TO COMPEL PRODUCTION
- MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES
- MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES
- MOTION TO COMPEL PRODUCTION
- MOTION TO COMPEL PRODUCTION
9 MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES????????????????????????????????????????? 10. MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES??????????????????????????????????????? 11. MOTION TO COMPEL PRODUCTION OF DOCUMENTS
Denied without prejudice.
Defendant Jerry Earl Miller asks the Court to appoint a Receiver to take possession of the Irvine Market and manage it pending trial of this partnership dispute.? Miller alleges numerous instances of mismanagement and illegal activity by Plaintiffs Hoa Kim ?Karen? Ngo and Mary Ngo.? (Motion at p. 1.)
However, appointment of a Receiver is a drastic and expensive remedy that is generally disfavored unless absolutely necessary.?? In support of his motion, Miller submits only his self-serving declaration to prove up his allegations.? He fails to submit declarations from an independent accountant or unbiased third-party witnesses.
In Opposition, Plaintiffs submit the declaration of Karen Ngo who denies the truth of Miller?s allegations.? Given these dueling declarations, the Court is unable to conclude more likely than not that Plaintiffs have committed the alleged misconduct.? The Court makes no formal finding that no misconduct has occurred, but only at the present time Miller has presented insufficient evidence to carry his burden to show more likely than not that misconduct has occurred.
Accordingly, the motion for appointment of a Receiver is Denied without prejudice.
However, the Court finds it troubling that Plaintiffs have still not provided an accounting, although the Court recommended such course of action and although Plaintiffs admit that Miller has at least a 26.8% interest in the business.? Furthermore, Plaintiffs themselves are demanding an accounting from Miller regarding his alleged financial mismanagement. Because it appears that all of the partners are entitled to a mutual accounting as a matter of law, the Court deems it in the best interests of justice to expedite the matter of an independent and unbiased accounting.? This accounting must commence forthwith without any further delay.
The parties and their counsel shall appear in person prepared to nominate up to 3 independent accountants and also up to 3 potential Receivers.? Counsel shall provide curriculum vitae and other supporting information and declarations from the candidates.? The parties shall meet and confer at the hearing and if they are unable to agree the Court shall select an accountant to start reviewing the financial history of the partnership and the management of the business.
If Plaintiffs and Defendant continue to delay the process of appointing an accountant, the Court reserves the right to appoint a Receiver, which will increase the financial burden on all parties, but which may be necessary if the parties are unable to negotiate and cooperate in good faith.
In his Reply brief, Miller alleges that Plaintiffs have been responsible for the delays in appointing an accountant.? The Court makes no formal ruling at this time as to which party or parties are at fault for the unnecessary delay.? However, moving forward the Court shall require the parties to adhere to strict deadlines.? And any failure to meet these deadlines may result in appointment of a Receiver.
The Court reserves the right to reject all nominees put forward by the parties and to select its own accountant or Receiver, if the nominees are unacceptable to the parties or the Court.
10 Discovery Motions
Regarding the 10 discovery motions on calendar, on its own motion, the Court is inclined to appoint a discovery referee to review the motions and make recommendations regarding their disposition.? (CCP 639 (a)(5).)
Plaintiffs shall serve notice of this ruling.