Andrea Vicars v. Marborg Industries, et al.

Izkina opposes Key Zone's motion for leave to file the SAC on the grounds that (1) Izkina would be prejudiced due to Key Zone's unreasonable delay and (2) the proposed fraud COA is futile because it is based on the same facts as the breach of contract COA.

Analysis "The Court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect ...." (Code Civ. Proc., Sec. 473.) Leave to file an amended pleading is routinely granted absent unusual circumstances so that cases may be heard on their merits. (See Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) "Indeed, it is a rare case in which a Court will be justified in refusing a party leave to amend his pleading so that he may properly present his case. [Citation.] [A]bsent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail." (S.C. v. Doe 1 (2025) 115 Cal.App.5th 365, 376, internal quotation marks omitted.)

As to Izkina's prejudice argument, the parties do not dispute that the proposed fraud COA largely arises out of the same transactions already at issue in this action. Izkina argues that Key Zone was aware of the facts pertaining to the proposed amendments in November or December 2025, but delayed filing a formal motion to amend until February 18, 2026. The Court finds these circumstances do not support a finding of unfair prejudice. This action is set for trial on November 4, 2026, and it appears that Key Zone acted with reasonable diligence. (Thai Decl., P.P. 2-7.) Izkina will not be deprived of a fair opportunity to defend itself in this action.

As to the futility argument raised by Izkina, "when one party commits a fraud during the contract formation or performance, the injured party may recover in contract and tort." (Harris v. Atlantic Richfield Co. (1993) 14 Cal.App.4th 70, 78.) "A Plaintiff may assert a fraudulent concealment cause of action based on conduct occurring in the course of a contractual relationship if the elements of the claim can be established independently of the parties' contractual rights and obligations, and the tortious conduct exposes the Plaintiff to a risk of harm beyond the reasonable contemplation of the parties when they entered into the contract."

Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 38.) "The guiding and distinguishing principle is this. If the alleged breach is based on a failure to perform as the contract provides, and the parties reasonably anticipated and allocated the risks associated with the breach, the cause of action will generally sound only in contract because a breach deprives an injured party of a benefit it bargained for. However, if the contract reveals the consequences were not reasonably contemplated when the contract was entered and the duty to avoid causing such a harm has an independent statutory or public policy basis, exclusive of the contract, tort liability may lie." (Id. at p. 27.)

Here, the proposed SAC alleges that Defendants committed multiple instances of fraud by way of forgery during the performance of the contract, absconding with the funds from the lender by forging Key Zone's signature on payment forms. The Court does not find that the proposed amendments are futile on their face in the context of the liberal standard favoring amendment. Izkina can raise its defenses regarding its futility arguments in a responsive pleading or as otherwise allowed under the Code of Civil Procedure. This will allow these issues to be addressed on their merits. For all these reasons, the Court will grant Key Zone's motion for leave to file the SAC.

Tentative Ruling: Andrea Vicars v. Marborg Industries, et al. Tentative Ruling: Andrea Vicars v. Marborg Industries, et al. Case Number

Case Type Civil Law & Motion Hearing Date / Time Wed, 04/08/2026 - 10:00 Nature of Proceedings Motions to Compel (3); Motion for Protective Order

Tentative Ruling For Plaintiff Andrea Vicars: R. Chris Kroes, McCarthy & Kroes For Defendants Marborg Industries and Homero Vences: Maryam Danishwar, Jonathan Semerjian, Clark Hill LLP RULING (1) For the reasons set forth herein, the motion of Plaintiff for a protective order re special interrogatories and request for production of documents propounded by Defendant Marborg Industries is continued to May 13, 2026. The parties shall meet and confer in accordance with this ruling and, on or before April 29, 2026, submit a joint report, or file and serve individual status reports if necessary, setting forth, on a point-by-point basis as to each discovery request at issue, the matters described herein including which, if any, disputes have been resolved and which, if any, disputes remain.

(2) For the reasons stated herein, the motion of Plaintiff to compel Defendant Marborg Industries to provide further responses to set one form interrogatories is granted. Defendant's objections to Plaintiff's set one form interrogatory nos. 1.1, 2.11, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 4.1, 4.2, 12.1, 12.2, 12.3, 12.6, 12.7, 13.1, 14.1, 15.1, 16.1, 16.2, 16.7, 16.8, 17.1, 20.1, 20.2, 20.3, 20.4, 20.5, 20.8, 20.9, 20.10, and 20.11, are overruled except as to those based on privilege. On or before April 22, 2026, Defendant shall serve verified, code compliant further responses to Plaintiff's set one form interrogatory nos. 1.1, 2.11, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 4.1, 4.2, 12.1, 12.2, 12.3, 12.6, 12.7, 13.1, 14.1, 15.1, 16.1, 16.2, 16.7, 16.8, 17.1, 20.1, 20.2, 20.3, 20.4, 20.5, 20.8, 20.9, 20.10, and 20.11, without the objections overruled herein.

The Court awards sanctions in favor of Plaintiff Andrea Vicars, and against Defendant Marborg Industries and its counsel, Maryam Danishwar and Jonathan Semerjian, in the amount of $5,747.50, payable to Plaintiff's counsel. Payment of sanctions is due by May 8, 2026.

(3) For the reasons stated herein, the motion of Plaintiff to compel Defendant Marborg Industries to provide further responses to set one request for admissions is granted. Defendant's objections to Plaintiff's set one request for admissions nos. 1 through 12 are overruled, except as to those based on privilege. On or before April 22, 2026, Defendant shall serve verified, code compliant further responses to Plaintiff's set one request for admissions nos. 1 through 12, without the objections overruled herein. The Court awards sanctions in favor of Plaintiff Andrea Vicars, and against Defendant Marborg Industries and its counsel, Maryam Danishwar and Jonathan Semerjian, in the amount of $4,872.50, payable to Plaintiff's counsel. Payment of sanctions is due by May 8, 2026.

(4) For the reasons stated herein, the motion of Plaintiff to compel Defendant Marborg Industries to provide further responses to set one requests for production of documents is granted. Defendant's objections to Plaintiff's set one request for production of documents and other things nos. 1 through 13 are overruled, except as to those based on privilege. On or before April 22, 2026, Defendant shall serve verified, code compliant further responses to Plaintiff's set one request for production of documents and other things nos. 1 through 13, without the objections overruled herein. The Court awards sanctions in favor of Plaintiff Andrea Vicars, and against Defendant Marborg Industries and its counsel, Maryam Danishwar, in the amount of $5,310, payable to Plaintiff's counsel. Payment of sanctions is due by May 8, 2026.

Background

As alleged in the complaint of Plaintiff Andrea Vicars: On April 17, 2025, Marborg Industries (Marborg) came to 850 Clark Road in Santa Barbara, California, to pick up a full 40-yard dumpster. (Compl., P.P. MV-1, MV-2(f) & GN-1.) During the pickup, the 10,000 pound steel dumpster came off the hook, rolled down the driveway, and crashed into Plaintiff's Mercedes Sprinter van, which then was pushed back and into Plaintiff's Lexus, causing significant damage to both vehicles. (Compl., P. MV-2(f) & GN-1.)

On July 24, 2025, Plaintiff filed their complaint against Defendants Marborg and Homero Vences, alleging two causes of action: (1) motor vehicle; and (2) general negligence. On November 26, 2025, Marborg filed an answer to the complaint, generally denying its allegations and asserting thirty-five affirmative defenses. On December 23, Plaintiff filed a motion for a protective order (the protective order motion) in regard to Marborg's special interrogatories and requests for production of documents.

That motion also seeks an order limiting Defendant's special interrogatories to the statutorily permitted number, and requiring Marborg to withdraw the declarations attached to the special interrogatories. The protective order motion also includes a request for an award of monetary sanctions against Marborg and its counsel of record. Marborg opposes the protective order motion, which was calendared for hearing on March 18, 2026.

On February 17, 2026, Plaintiff filed a motion (the FI Motion) for an order compelling Marborg to provide further responses to Plaintiff's set one form interrogatories (the FI), and imposing monetary sanctions against Marborg and its counsel. On February 18, Plaintiff filed a motion (the RFA Motion) for an order compelling Marborg to provide further responses to Plaintiff's set one request for admissions (the RFA), and imposing monetary sanctions against Marborg and its counsel. On February 19, Plaintiff filed a motion (the RFP Motion) for an order compelling Marborg to provide further responses to Plaintiff's set one requests for production of documents (the RFP), and imposing monetary sanctions against Marborg and its counsel. The RFA Motion was calendared for hearing on March 18, 2026. The FI Motion and the RFP Motion were each calendared for hearing on April 8, 2026.

On March 11, Defendant Vences filed an answer to the complaint, generally denying its allegations and asserting thirty-five affirmative defenses. Also on March 11, Plaintiff filed a reply in support of its RFA Motion, stating that Marborg failed to file any opposition to that motion by the deadline prescribed in California Rules of Court, rule 3.1300(b). On March 18, the Court issued an order continuing the protective order motion and the RFA Motion to April 8, to be heard with the FI Motion and the RFP Motion. On April 1, Plaintiff separately filed a reply in support of the RFP Motion and the FI Motion, stating that Marborg failed to file any oppositions to those motions. As of this writing, Court records reflect that Marborg has not filed any opposition to the RFA Motion, the FI Motion, or the RFP Motion.

Analysis (1) The Protective Order Motion The protective order motion is supported by a declaration of Plaintiff's counsel, R. Chris Kroes (attorney Kroes), who states that on November 26, 2025, Marborg served form interrogatories; twenty-five requests for admissions; fifty-two requests for production of documents seeking financial records, loss of earnings, medical reports, and Plaintiff's cell phone, social media, and personal injury data; and sixty-six special interrogatories seeking those same categories of information. (Kroes Dec., P. 4, exhibits B1 [special interrogatories] & B2 [requests for production of documents].)

A declaration attached to the special interrogatories of Marborg states that the number of interrogatories is warranted because Plaintiff claims multiple physical and emotional injuries in these proceedings. (Kroes Dec., P. 5 & exhibit B1 at p. 13 [declaration for additional discovery].)

On December 1, attorney Kroes asserted in written correspondence with Marborg's counsel, that discovery concerning personal injuries was inappropriate for a property damage case, and that opposing counsel's affirmation justifying the additional interrogatories was false. (Kroes Dec., P. 6 & exhibit C [attorney Kroes' December 1 correspondence].) In that correspondence, attorney Kroes requested that Marborg amend the special interrogatories and request for admissions. (Ibid.) On December 3, attorney Kroes contacted Marborg's counsel by telephone and pointed counsel to Plaintiff's Judicial Council form complaint containing the claims made by Plaintiff. (Kroes Dec., P. 7.)

Marborg's counsel agreed that their declaration for additional discovery was in error, and stated that Marborg would amend the discovery to cover matters related to property damage and loss of use only, and remove the requests regarding personal injuries, hospital expenses, medical bills, financial data, and emotional distress. (Ibid.)

On December 3, Marborg's counsel served amended discovery requests consisting of form interrogatories; twenty five admission requests; forty-one amended requests for production which also sought financial data, loss of earnings, and medical reports; and fifty-four amended special interrogatories seeking that same information. (Kroes Dec., P. 8 & exhibits D1-D2.) The amended special interrogatories included a declaration stating that the number of interrogatories was warranted because this lawsuit involves "'multiple allegations and multiple categories of damages....'" (Kroes Dec., P. 9 & exhibit D1 at p. 11.)

On December 4, attorney Kroes sent a meet and confer letter asserting that Marborg had repeated the same conduct, and listing the factual and legal reasons why each interrogatory and each request for production of documents were improper. (Kroes Dec., P. 10 & exhibit E.) In its response letter on the same date, Marborg's counsel acknowledged that Plaintiff was not making a personal injury claim, and stated: "If you wish to object to our discovery request, you may do so through the formal response process." (Kroes Dec., P. 11 & exhibit F.)

Attorney Kroes has not received any further communications from Marborg's counsel or any redactions or modifications to the discovery propounded by Marborg. (Kroes Dec., P. 11.)

The Kroes declaration includes examples of the text of Marborg's special interrogatory nos. 1, 4, 7, 9 through 14, 16, 17, 19 through 22, and 24 through 29, and the text of Marborg's request for production nos. 3, 4, 6, 11 through 13, 15 through 17, 19, 29, 31, 32, 36, 37, 42, and 43, which attorney Kroes asserts is improper. (Kroes Dec., P.P. 12-13.)

The opposition of Marborg to the protective order motion is supported by a declaration of its counsel, Jonathan Semerjian (attorney Semerjian), who states that, following the incident at issue in these proceedings where Plaintiff's parked vehicles were struck, Marborg attempted to resolve the property claim directly with Plaintiff. (Semerjian Dec., P. 4.) According to attorney Semerjian, Plaintiff's Sprinter van was transported to a repair facility where it was believed that its estimated damages included unrelated or pre-existing damage. (Ibid.)

Though Marborg, through its insurance, offered to cover repairs arising from the incident, Plaintiff declined that offer and insisted that all damage to the vehicle be repaired. (Ibid.) Attorney Semerjian further states that on June 17, 2025, Plaintiff's counsel issued a pre-litigation demand seeking estimated damages to the Sprinter van which included unrelated and pre-existing damage; seeking property damage to Plaintiff's Lexus; and alleging the loss of use of the Sprinter van and Lexus since April 17, 2023. (Semerjian Dec., P. 5.)

Marborg disputes the extent of the property damage and Plaintiff's loss of use claim. (Ibid.)

On November 26, Marborg's counsel propounded discovery addressing the incident. (Semerjian Dec., P. 7.) On December 1, Plaintiff clarified their claims and Marborg's counsel promptly amended that discovery to eliminate all requests exclusively related to any personal injury claims. (Ibid.) On December 4, Marborg's counsel attempted to further meet and confer to address Plaintiff's concerns regarding the amended discovery, but Plaintiff's counsel refused to continue discussions telephonically or in writing without hostility. (Ibid.)

The arguments advanced in the memorandum submitted in support of the protective order motion can be distilled to the following points: this case is limited in its scope to claims for property damage to and the loss of use of Plaintiff's vehicles; Marborg's discovery requests seek private and confidential information relating to Plaintiff's medical records, emotional distress damages, lost wages, and other information regarding Plaintiff's employment, finances, and cell phone and social media which is not relevant to the claims or subject matter of this litigation; the discovery sought by Marborg intrudes on Plaintiff's privacy rights; Marborg's declarations for additional discovery describe claims which are not alleged or raised in Plaintiff's complaint, are false, constitute a misuse of the discovery process, and show that Marborg's special interrogatories improperly exceed statutory limits; and the volume and nature of the discovery sought by Marborg shows or suggests an attempt to harass and unduly burden Plaintiff with unnecessary complexity and expense.

The opposition of Marborg raises or effectively raises the following points to support Marborg's contention that the protective order motion should be denied in all respects: Marborg may inquire about the extent of Plaintiff's claims beyond those alleged in the complaint; Plaintiff has reportedly admitted that both vehicles at issue in this litigation were inoperable for at least four months before the subject incident occurred; when Marborg's insurance carrier attempted to resolve Plaintiff's property damage claim, Plaintiff insisted that all damage to the Sprinter van, including unrelated and pre-existing damage, be repaired; discovery related to Plaintiff's employment and income is relevant because Plaintiff's claim for loss of use of the Sprinter van is tied to Plaintiff's work related activities; Marborg disputes the amount of Plaintiff's property damage claim including the calculations and extent of the claims included in Plaintiff's June 17, 2025, pre-litigation demand; Marborg served the discovery requests to understand both the existing and potential theories and damages claimed by Plaintiff such that Marborg's declarations for additional discovery were made in good faith; and Marborg's amended special interrogatories and requests for production of documents moot the present motion because those amended requests are reasonable, narrowly tailored, and appropriate.

The undisputed available information and evidence shows that on November 26, 2025, Marborg served Plaintiff with special interrogatories which are numbered set one and begin with special interrogatory no. 1, and with requests for production of documents and other things which are numbered set one and begin with request for production no. 1. (Kroes Dec., exhibits B1-B2.) The undisputed present record also shows that on December 3, 2025, Marborg served Plaintiff with amended special interrogatories (the Marborg SI) which are also numbered set one and begin with special interrogatory no. 1, and an amended request for production of documents and other things (the Marborg RFP) which is numbered set one and begins with request for production no. 1. (Kroes Dec., exhibits D1-D2.)

As a threshold matter, and absent a dispute by Marborg, the Court deems the service by Marborg of the Marborg SI and the Marborg RFP, as a withdrawal of the special interrogatories and requests for production of documents and other things served by Marborg on November 26, 2025. (See Code Civ. Proc., Sec. 2030.060, subds. (a), (c) [requiring that each set of interrogatories be numbered consecutively and each interrogatory be identified by number]; Code Civ. Proc., Sec. 2031.030, subds. (a)(1), (c) [same re inspection demands].)

As the Marborg SI and the Marborg RFP are, for all reasons discussed above, the ostensibly operative discovery to which the protective order motion is directed, to the extent that motion addresses, is directed to, or seeks any orders in regard to the special interrogatories or requests for production of documents and other things served by Marborg on November 26, 2025, that motion is, for all reasons discussed above, moot and will be denied on that basis.

"A party may propound to another party either or both of the following: "(1) Thirty-five specially prepared interrogatories that are relevant to the subject matter of the pending action. "(2) Any additional number of official form interrogatories, as described in Chapter 17 (commencing with Section 2033.710), that are relevant to the subject matter of the pending action. "(b) Except as provided in Section 2030.070, no party shall, as a matter of right, propound to any other party more than 35 specially prepared interrogatories.

If the initial set of interrogatories does not exhaust this limit, the balance may be propounded in subsequent sets. "(c) Unless a declaration as described in Section 2030.050 has been made, a party need only respond to the first 35 specially prepared interrogatories served, if that party states an objection to the balance, under Section 2030.240, on the ground that the limit has been exceeded." (Code Civ. Proc., Sec. 2030.030, subd. (a), (b), (c).)

Code of Civil Procedure section 2030.040 provides that "[s]ubject to the right of the responding party to seek a protective order under Section 2030.090, any party who attaches a supporting declaration as described in Section 2030.050 may propound a greater number of specially prepared interrogatories to another party if this greater number is warranted because of any of the following: "(1) The complexity or the quantity of the existing and potential issues in the particular case. "(2) The financial burden on a party entailed in conducting the discovery by oral deposition. "(3) The expedience of using this method of discovery to provide to the responding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought. "(b) If the responding party seeks a protective order on the ground that the number of specially prepared interrogatories is unwarranted, the propounding party shall have the burden of justifying the number of these interrogatories." (Code Civ. Proc., Sec. 2030.040, subds. (a), (b).)

The Marborg SI consist of special interrogatories identified as numbers 1 through 54, and include a declaration for additional discovery by attorney Semerjian, which states: "This number of questions is warranted under Section 2030.040 of the Code of Civil Procedure because Plaintiff's lawsuit involves multiple allegations and multiple categories of damages as a result of the subject incident." (Kroes Dec., exhibit D1 at p. 11, P. 7.) Apart from challenging the truth of that statement, the protective order motion does not advance any reasoned argument showing why the declaration for additional discovery attached to the Marborg SI otherwise fails to

Issue Motions to Compel RULING These are two motions to compel compliance with deposition subpoenas issued to Chubb Group of Insurance Companies, and California Managed Imaging Medical Group, respectively. No opposition or other response has been filed. Both motions attach the respective deposition subpoenas. Neither motion attaches a completed or signed proof of service as to a deposition subpoena. Both proofs of service check contradictory boxes as to the person serving, stating that the person serving the subpoena is both a registered California process server and not a registered California process server. In the absence of proof that either deposition subpoena was served on the respective deponent, both motions are denied without prejudice. The Trial Date of 11/4/26 is confirmed.

Tentative Ruling: Andrea Vicars v. Marborg Industries, et al. Tentative Ruling: Andrea Vicars v. Marborg Industries, et al. Case Number

Case Type Civil Law & Motion Hearing Date / Time Wed, 05/13/2026 - 10:00 Nature of Proceedings Plaintiff's Motion for Protective Order Re Special Interrogatories and Request For Production Of Documents Propounded By Defendant Tentative Ruling For Plaintiff Andrea Vicars: R. Chris Kroes, McCarthy & Kroes For Defendants Marborg Industries and Homero Vences: Maryam Danishwar, Jonathan Semerjian, Clark Hill LLP RULING For the reasons stated herein, the motion of Plaintiff for a protective order re special interrogatories and request for production of documents propounded by Defendant Marborg Industries is granted, in part as to Defendant's amended set one special interrogatory nos. 1, 9 through 14, 16 through 29, 49, and 50; and Defendant's amended set one requests for production of documents and other things nos. 6 (in part and in accordance with this ruling), 11 through 17, 19, 21, and 36 through 39.

Except as herein granted, the motion is otherwise denied. Plaintiff shall submit, for the Court's signature, a proposed order that conforms to the ruling herein. The trial date of 11/25/26 is confirmed - again.

Background

As alleged in the complaint of Plaintiff Andrea Vicars: On April 17, 2025, Marborg Industries (Marborg) came to 850 Clark Road in Santa Barbara, California, to pick up a dumpster. (Complaint, P.P. MV-1, MV-2(f) & GN-1.) During the pickup, the 10,000 pound steel dumpster rolled down the driveway and crashed into Plaintiff's Mercedes Sprinter van, which then was pushed back and into Plaintiff's Lexus, causing significant damage to both vehicles. (Complaint, P. MV-2(f) & GN-1.) On July 24, 2025, Plaintiff filed their complaint against Defendants Marborg and Homero Vences, alleging two causes of action: (1) motor vehicle; and (2) general negligence.