KG MULLEN INC., A CALIFORNIA CORPORATION VS FAWAZ, AN INDIVIDUAL

2. CASE # CASE NAME HEARING NAME KG MULLEN INC., A HEARING RE: MOTION TO COMPEL CALIFORNIA DEPOSITION OF KEVIN G MULLEN BY

CORPORATION VS FAWAZ, REBECCA POLAK, AN INDIVIDUAL, AN INDIVIDUAL JONATHAN POLAK, AN INDIVIDUAL Tentative Ruling:

This is a mechanic’s lien case. On February 22, 2022, Plaintiff KG Mullen, Inc. (“Plaintiff”) entered into a written contract with Defendant Isabella and Moet Fawaz (“Fawaz”) whereby Plaintiff agreed to provide specified construction-related services including labor and materials necessary for the substantial improvements to a residential property in Palm Desert, California (“Subject Property”). Over the course of the construction project, the scope of the work was modified through written and verbal change orders that increased the cost of the project.

Plaintiff alleges that Fawaz failed to make all payments. As a result, Plaintiff was unable to complete all work on the project. On December 17, 2024, Plaintiff recorded a mechanic’s lien against the Subject Property. On December 23, 2024, Fawaz transferred titled to the Subject Property to Defendants Rebecca and Jonathan Polaks (“Defendants” or “Polaks”).

Plaintiff filed it Complaint on March 14, 2025, and the operative Second Amended Complaint (“SAC”) on August 1, 2026. The SAC includes six causes of action for: (1) Breach of Contract; (2) Foreclosure of Mechanic’ Lien; (3) Quantum Meruit and Quantum Valebant; (4) Account Stated; (5) Open Book Account; and (6) Unjust Enrichment. On September 29, 2025, the Polaks filed a Cross-Complaint against the Fawaz for: (1) Equitable Indemnification; (2) Contribution; and (3) Fraud.

On March 4, 2026, Defendants served a deposition subpoena on non-party Kevin Mullen (“Mullen”) with a deposition date of March 26, 2026. Mullen failed to appear.

Defendants now move to compel the deposition of Mullen. Defendants argues that the deposition is necessary because Mullen signed the mechanic’s lien and other important documents and is the CEO of ACL. Defendants argue that the failure to appear or contact counsel is part of a pattern of delay and refusal to participate in discovery and litigation. Defendants request $6,000 in sanctions.

Mullen argues that his failure to appear for deposition was substantially justified because he underwent an out patient surgery under general anesthesia the day before and was not capable of testifying under oath. Mullen asserts that he attempted to contact defense counsel prior to the deposition start time. Mullen argues that Defendants failed to meet and confer. Mullen states that he does not oppose the deposition, but argues that sanctions are not warranted.

In their Reply, Defendants argue that the Court should order Mullen to appear for deposition on September 10, 2026. Defendants argue that Mullen and his counsel received their meet and confer letter but failed to respond. Defendants argue that Mullen’s failure to appear and respond to meet and confer efforts were not substantially justified.

Motion to Compel Deposition

Any party may obtain discovery by taking the deposition of any person, including a party to the action. (CCP § 2025.010.) Personal service of a deposition subpoena obligates any California resident to appear, testify and produce the requested documents, and to appear in any proceedings to enforce the discovery. (CCP §2020.220(c).) If a non-party refuses to comply with

a subpoena, the subpoenaing party may seek an order compelling compliance under CCP § 1987.1(a). This section does not contain a meet and confer requirement. (See CCP § 1987.1.)

Here, Counsel for Defendant asserts that on March 4, 2026, after several unsuccessful attempts, Mullen was personally served the Deposition Subpoena for Personal Appearance and Production of Documents and Things (“Subpoena”). (Decl. of Akinmurele, ¶ 3; Ex. 1.) The deposition was scheduled for March 26, 206 at 9:00 a.m. (Id.) Mullen did not appear for the deposition. (Decl. of Akinmurele, ¶ 4.) At 9:31 a.m., Mullen’s non-appearance was taken on the record. (Id; Ex. 2.) It is undisputed that Mullen did not appear. In support of the Opposition, Mullen provided alternative dates for the deposition, including September 10, 2026. Defendants agree to this date. Thus, Mullen is ordered to appear for deposition at 9:00 a.m. on September 10, 2026.

Sanctions

“Except as specified in subdivision (c), in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (CCP §1987.2(a).) The concept of substantial justification “has been understood to mean that a justification is clearly reasonable because it is well-grounded in both law and fact.” (Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.)

Mullen states that on March 25, 2026, the day before the scheduled deposition, he underwent a medical procedure under general anesthesia at Providence Saint John's Health Center in Santa Monica, California. (Decl. of Mullen, ¶ 2; Ex. A.) He was discharged at 5:16 p.m. the same day. (Id.) On March 26, 2026, he woke feeling unwell as a result of the procedure. (Id at ¶ 4.) Mullen asked his business partner, Rahim Multani, to contact both Plaintiff's counsel and defense counsel to request that the deposition be taken off calendar and rescheduled. (Id.) However, it appears that Mr. Multani contacted only Plaintiff’s counsel, but did not contact defense counsel prior to the deposition start time. (Decl. of Multani, ¶ 3.) He did not contact defense counsel until 9:52. (Id at ¶ 4.) There is no evidence that Plaintiff’s counsel contacted defense counsel after receiving notice from Multani.

Although sympathetic to Mr. Mullen’s medical circumstances, the Court must impose sanctions because Mullen’s overall conduct was not substantially justified. While Mullens indicates that he did not reschedule the deposition because he was advised that the procedure was a routine outpatient procedure with same-day discharge (Decl. of Mullens, ¶ 3), a prudent person would have either postponed the deposition or set up a means of ensuring that defense counsel would be notified of the ability to appear prior to the deposition start time. Instead of contacting defense counsel directly on the morning of the deposition, Mullens contacted Multani who also failed to notify defense counsel until nearly an hour later. Moreover, there is no evidence that Mullens provided alternative deposition dates prior to those provided in his Declaration, thus necessitating the present Motion to Compel.

Defendants request $6,000 in sanctions, which is excessive for a simple, largely unopposed motion to compel. Defendants are granted $750.00 in sanctions ($350/hour x 2 hours) payable within 30 days.

3. CASE # CASE NAME HEARING NAME HEARING RE: DEMURRER ON 2ND AMENDED COMPLAINT FOR BREACH REDSTAR VS ABOVE ALL CVPS2506804 OF CONTRACT/WARRANTY (OVER SERVICES $35,000) OF REDSTAR BY DS STRATEGIES LLC Tentative Ruling: Sustained without leave to amend.

Moving Defendant to file their answer to operative 2nd Amended Complaint within 20 days of this order becoming final.

Moving Defendant to provide notice pursuant to CCP 1019.5.

Plaintiff Redstar alleges it entered into a contract with co-defendants Above All Services, dba “BT Construction Co.” and its principal Brett Tobin to perform “construction work” on commercial property that moving party, defendant DS Strategies LLC (“DS Strategies”), owns in Palm Desert California. (First Amended Complaint (“FAC”), ¶¶ 12, 18-19.) DS Strategies in fact hired BT Construction as the general contractor on the build, and BT Construction hired Plaintiff as a subcontractor. (See generally, FAC, ¶¶ 12, 19.) In its breach of contract claim, pled only as to BT Construction and Mr. Tobin, Redstar claims BT Construction paid only $250,000 of the $378,000 contract price, leaving $128,000 due and owing. (FAC, ¶ 28)

The operative pleading is the Second Amended Complaint, filed on June 18, 2026, alleging: (1) Breach of contract; (2) Account stated; (3) Quantum meruit/unjust enrichment; (4) Prompt payment statute; and (5) Foreclosure on mechanic’s lien.

Defendant now demurrers to the third cause of action in the SAC for Quantum Meruit / Unjust Enrichment, on grounds that it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

Defendant claims that, as made clear in its Demurrer to the First Amended Complaint, which the Court sustained on June 11, 2025, there is no California authority allowing a subcontractor like Plaintiff to pursue such claims against the landowner. The authority in fact holds to the contrary and states that the subcontractor’s remedies are limited to pursuing contract claims against the direct contractor with whom it stands in privity, and enforcing its mechanic’s lien against the property owner, both of which it is doing. While the Court understandably exercised caution and granted Plaintiff leave to amend its First Amended Complaint, it noted the uphill battle Plaintiff faced with this cause of action. to Plaintiff’s attorney from the bench at the end of oral argument that, as to stating a claim through an amendment, “It doesn’t look good for you.”

In Opposition, Plaintiff contends that: (1) The holdings of R.D. Reeder Lathing Co. v. Allen (1967) 66 Cal.2d 373, 376 and Rogers v. Whitson (1964) 228 Cal.App.2d 662 and Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715 support the legal principle that, while a subcontractor who has no direct contractual relationship with a property owner ordinarily may not recover on a quantum meruit or unjust enrichment theory, there may be circumstances where the extent of the parties' dealings can give rise to a cause of action for equitable relief.

In Reply, Defendant contend that (1) Plaintiff ignore the “widely accepted” and “long and well established” rule precluding a subcontractor’s quasi-contract claims against the property owner; (2) the demurrer should be sustained without leave to amend.