Project No 33 LLC vs Fiore Management Inc et al

Case Number

23CV03719

Case Type

Hearing Date / Time

Fri, 12/06/2024 - 10:00

Nature of Proceedings

Motion for Leave; Motion for Order; Motion for Approval

Tentative Ruling

(1) For all reasons discussed herein, the motion of receiver Ryan C. Baker for an order approving the rejection, effective as of September 5, 2023, of certain leases of non-residential real property and of a certain equipment lease with Raymond Handling Concepts Corp. dba Raymond Leasing Corporation, approving the abandonment of remaining personal property, if any, and for related relief, is granted.

(2) For all reasons discussed herein, the motion of intervenor Jason Welsh for leave to intervene is granted. Intervenor Jason Welsh shall, on or before December 13, 2024, separately file with the Court his complaint in intervention in the form attached to the motion as exhibit 2, and shall serve notice of the Court’s ruling herein and the complaint in intervention in accordance with Code of Civil Procedure section 387, subdivision (e).

(3) For all reasons discussed herein, the motion of receiver Ryan C. Baker for an order modifying the Court’s September 5, 2023, order is continued to January 17, 2024. Any response to the motion of the receiver for an order modifying the Court’s September 5, 2023, order that may be made by intervenor Jason Welsh shall be filed and served on or before January 6, 2024.

Background: 

On August 25, 2023, plaintiff Project No. 33 LLC, filed a verified complaint against defendants Fiore Management Inc. (Fiore) and Light Effect Apparel (Light Effect), which is alleged to be a wholly owned subsidiary of Fiore created solely for the purpose of holding the intellectual property rights associated with Fiore’s “Canndescent” brand of cannabis products. (See Compl., ¶¶ 10-11.) As alleged in the complaint:

On February 21, 2023, plaintiff, Fiore, and Light Effect entered into a promissory note under which plaintiff agreed to provide a loan in the amount of up to $1 million, plus 10 percent interest, with the outstanding amount to be repaid either within 15 days of plaintiff’s demand, upon the occurrence of an “Event of Default” as defined in the promissory note, or by February 21, 2025. (Compl., ¶¶ 13-14 & Exh. 1.) In exchange, Fiore and Light Effect (collectively, defendants) agreed to, among other things, pledge certain collateral to secure their obligations to plaintiff which includes a first priority, senior security interest in the intellectual property rights of Light Effect. (Id. at ¶ 15.)

Between March 14 and June 15, 2023, plaintiff wired the total of $975,985.62 to Fiore pursuant to the terms of the promissory note, and on June 15, 2023, plaintiff filed a UCC-1 financing statement with the Wyoming Secretary of State. (Compl., ¶¶ 16-17 & Exh. 2.)

On July 20, 2023, the managing member of plaintiff attended a meeting of defendants’ board of directors during which the President and CEO of Fiore concluded that Fiore was insolvent. (Compl., ¶¶ 3, 18.) The insolvency of Fiore constitutes an “Event of Default” under the promissory note entitling plaintiff to immediate payment of the outstanding principal balance of the promissory note plus costs. (Id. at ¶¶ 4, 19-20.) Plaintiff asserts that it holds a significant portion of the secured and unsecured debt that comprises Fiore’s long-term liabilities which currently exceed $8 million including the promissory note. (Id. at ¶ 2.) Because Fiore is insolvent or in immediate danger of insolvency, plaintiff is entitled to the appointment of a receiver under Code of Civil Procedure section 564, to which Fiore and other significant secured creditors have agreed. (Id. at ¶ 6.)

The complaint alleges three causes of action: (1) breach of contract (against Fiore and Light Effect); (2) appointment of receiver (against Fiore); and (3) claim and delivery (against Light Effect).

On August 31, 2023, plaintiff filed an unopposed ex parte application for an order appointing a general equity receiver under Code of Civil Procedure section 564, asserting that Fiore has consented and stipulated to the appointment of a receiver. On September 1, 2023, a joint stipulation for the appointment and nomination of Ryan C. Baker (the joint appointment stipulation), executed by counsel for the parties, was filed with the Court by plaintiff.

On September 5, 2023, the Court entered an order (the September 5 Order) approving and granting the joint appointment stipulation, granting the unopposed ex parte application of plaintiff, appointing Ryan C. Baker (Baker) as a general equity receiver over the operations and assets of Fiore subject to conditions, and setting forth the duties, powers, and responsibilities of the receiver and the obligations of Fiore as well as the compensation which Baker is authorized to receive.

Having received no objections, on September 18, 2023, the Court entered an order (the September 18 Order) confirming the appointment of Baker, the posting by Baker of a security bond, the filing of the oath required under Code of Civil Procedure section 566, subdivision (a), and modifying the September 5 Order to require the Court’s approval for Baker to sell receivership assets in excess of $150,000 as requested by the parties. On the same date, the court entered a separate order authorizing Baker to employ counsel of record effective September 5, 2023.

The motion of intervenor Jason Welsh for leave to intervene:

On August 23, 2024, Jason Welsh (Welsh) filed a motion for leave to intervene in the action under Code of Civil Procedure section 387 (the motion to intervene). Attached as exhibit 2 to the motion to intervene is a copy of a complaint in intervention which Welsh proposes to file in this action.

The memorandum submitted in support of the motion to intervene includes a statement setting forth facts which do not appear in any declaration. These facts include that Welsh became a shareholder of Fiore in August 2017. (Memo. at p. 3.) Welsh further asserts that on July 15, 2021, Fiore notified its shareholders of its intent to recapitalize and restructure, converting Fiore from a California limited liability company to a Delaware corporation, and of their right to exercise dissenters’ rights which Welsh validly executed on July 16, 2021, by demanding that his shares be purchased for cash at their fair market value. (Ibid.)

Welsh also asserts in the supporting memorandum that on September 21, 2021, Fiore notified its shareholders that it had “reorganized” into a Delaware “C” corporation as of August 26, 2021. (Memo. at p. 3.) Welsh contends that Fiore failed to comply with its obligations under California Corporations Code section 17711.03, subdivision (a). (Id. at pp. 3-4.) On February 15, 2022, Welsh filed a petition pursuant to Corporations Code section 17711.06 to determine the fair value of his membership interest, and on May 23, 2022, filed as Santa Barbara Superior Court case no. 22CV00597 entitled Jason Welsh v Fiore Management Inc. (the Welsh Action), a complaint asserting a cause of action for breach of contract and for violation of dissenter’s rights. (Id. at p. 4.)

Welsh further asserts that a mandatory settlement conference was held in the Welsh Action. (Memo. at p. 4.) Attached to the motion as exhibit 1 is a Minute Order entered in the Welsh Action on August 9, 2024, setting forth on the record the terms of a judicially supervised settlement (the settlement) under which the parties in that action agreed: (1) that Fiore owes Welsh the sum of $216,497 (the settlement sum); (2) that Welsh is entitled to judgment in the amount of the settlement sum; (3) that the parties disagree as to whether Welsh must file a creditor’s claim in order to be paid the settlement sum or whether the settlement sum should be paid immediately upon entry of judgment; (4) that Welsh shall intervene in the present action and thereafter file a motion requesting that the Court issue an order instructing Baker to place the settlement sum in an escrow account and determining whether Welsh must file a creditor’s claim; (5) that while Baker does not contest the amount of the judgment, Baker may oppose the request of Welsh to be paid without filing a creditor’s claim; and (6) that Welsh agrees not to take any additional action that would encumber the assets of Fiore or to otherwise enforce the judgment. (Motion, Exh. 1.)

Welsh also submits in support of the motion to intervene a declaration of his counsel, Karine F. Wegrzynowicz (Wegrzynowicz), who states that she knows of no prejudice to any party as a result of the granting of the motion to intervene, and that the motion to intervene is made in good faith and not for purposes of delay. (Wegrzynowicz Decl., ¶¶ 3-4.)

Baker has filed an opposition to the motion to intervene in which Baker asserts that he does not oppose or object to Welsh intervening in this action by filing the proposed complaint in intervention, but that Baker reserves the right to dispute or contest facts alleged or relief prayed for in the complaint in intervention to the extent either the facts or relief alleged by Welsh are not memorialized in the terms of the settlement attached to the motion to intervene.

No other party has filed an opposition to the motion to intervene.

The September 16, 2024, motions of Baker:

On September 16, 2024, Baker filed a motion for an order (the approval motion) approving the rejection, effective as of September 5, 2023, of leases of non-residential real properties (the property leases) located at 1237 S. Gene Autry Trail in Desert Hot Springs, California (the Gene Autry Property),  3000 S. Robertson Blvd., Suite 245, in Los Angeles, California (the Robertson Property), and 13310 Little Morongo Road, Bldg. 2, Suite A, in Desert Hot Springs, California (the Little Morongo Property) (collectively, the subject properties), the abandonment of any personal property remaining at the subject properties, and the rejection of an equipment lease (the equipment lease) with Raymond Handling Concepts Corp. dba Raymond Leasing Corporation (Raymond Forklift).

In support of the approval motion, Baker declares that, after the Court entered its October 31, 2023, order approving a Management Services Agreement (the MSA) between Fiore and Culture Desert Hot Springs, Inc. (Culture), Baker and Culture signed the MSA. (Baker Decl., ¶ 4.) Baker further notes that on February 13, 2024, the Court issued its order authorizing Baker to enter into an Asset Purchase Agreement (the APA) which Baker negotiated with Culture, a copy of which is attached as exhibit 1 to the Baker declaration filed on February 2, 2024, which authorizes Baker to sell certain “Acquired Assets” described in the APA. (Id. at ¶ 5 & Exh. 7 [Feb. 13, 2024, Ex Parte Order].)

Baker further declares that Fiore vacated and turned over possession of the Little Morongo Property, the Robertson Property, and the Gene Autry Property in, respectively, September and early October of 2022, and November of 2023, and that Fiore has ceased conducting business at each of the subject properties. (Baker Decl., ¶¶ 6, 9-11 & 13.) In addition, Fiore turned over the equipment lease to the lessor, and turned over possession of the Raymond Forklift equipment on November 9, 2023. (Id. at ¶¶ 6 & 12-13.) Culture has advised Baker that it is not interested in the property leases, the subject properties, the Raymond Forklift equipment lease or any Raymond Forklift equipment. (Id. at ¶¶ 6 & 13.)

Because Fiore has ceased conducting business at each of the subject properties, has turned over the Raymond Forklift equipment lease and equipment, and Culture is uninterested in these matters, Baker has determined that retaining the subject properties, the property leases, and the Raymond Forklift equipment and equipment lease would cause an unnecessary drain on the assets of the receivership estate. (Baker Decl., ¶ 13.) For this reason, Baker has elected to reject the property leases and the Raymond Forklift equipment lease effective as of September 5, 2023, the date the receivership commenced, in order to avoid or minimize potential administrative rent or other claims against the receivership estate arising from or related to these leases. (Id. at ¶¶ 6 & 13.)

Baker further states that he has caused all personal property of Fiore to be removed from the subject properties, and that to the extent there remains any personal property of Fiore at any of the subject properties, it would consist of “miscellaneous odds and ends” which will burden the receivership estate due to the cost of moving and storing such personal property, which would outstrip the value the receivership might realize from marketing and selling such property. (Baker Decl., ¶ 14.) For this reason, Baker has elected to abandon any such personal property. (Ibid.)

Also on September 16, 2024, Baker separately filed a motion for an order modifying September 5 Order (the modification motion) to include a preliminary injunction precluding the commencement, prosecution, or enforcement of any action against Fiore with respect to property of the receivership absent the approval of the Court, among other things.

In support of the modification motion, Baker asserts that paragraph 6 of the September 5 Order establishes the procedure for creditors of the receivership to assert claims. (Baker Decl., ¶ 6.) Once Baker determines the assets of and resolves any outstanding issues with the receivership estate, the September 5 Order also requires Baker to notify all potential claimants to the estate to submit completed claim forms which will be reviewed for validity, and either accepted or rejected by Baker. (Ibid.) To the extent a claim is rejected, the claimant may file a challenge of that rejection with the Court. (Ibid.) Once all the claims submitted by creditors of the receivership have been resolved, Baker states that he will seek approval of a plan for distribution of the assets of the receivership in accordance with the September 5 Order. (Ibid.) Baker states that the claims procedure set forth in the September 5 Order will assist Baker to determine the validity of potential claims and manage the total assets and liabilities of the receivership, and will ensure that legitimate creditors obtain a proportionate share of assets upon distribution. (Id. at ¶ 8.)

Baker contends that creditors of the estate have indicated that they do not intend to follow the plan for distribution of the assets of the receivership set forth in the September 5 Order. (Baker Decl., ¶ 8.) Specifically, Baker contends that Welsh has stated that, once a stipulated judgment is entered in his favor in the Welsh Action, he will take all steps necessary to satisfy that judgment, including by levying on the assets of the receivership. (Ibid.) Baker asserts that if Welsh or other creditors are permitted to execute or levy on assets of the receivership, Baker’s ability to operate and manage the receivership estate will be hampered, and legitimate creditors will not receive their proportionate share of estate assets. (Ibid.)

By way of example, Baker states that as of July 1, 2024, the cash on hand of the receivership estate totaled $44,041.24. (Baker Decl., ¶ 9.) Pursuant to an agreement reached with Southern California Edison (SCE), the receivership estate is paying to SCE monthly installments of $22,035 in repayment of unpaid sums due to SCE from Fiore. (Ibid.) Baker asserts that if Welsh or any other creditor levies receivership assets, the receivership will not have sufficient cash to pay SCE or other normal operating expenses, which could result in, among other things, power loss at locations where operations are being conducted. (Ibid.) For these and all reasons described above and in the Baker declaration, Baker contends that creditors of the receivership should be enjoined from taking any action against the receivership estate which would detrimentally affect Baker’s ability to manage the receivership and protect its assets for distribution to legitimate creditors. (Id. at ¶ 10.)

Baker also submits the declaration of his counsel, Michael J. Gomez (Gomez), who declares that Welsh filed the Welsh Action before the appointment of Baker as receiver in this action, and that Welsh alleges he is owed certain sums from Fiore. (Gomez Decl., ¶ 3.) Baker made the decision to settle with Welsh rather than continue with the Welsh Action. (Id. at ¶ 3.)

Gomez further that he is in the process of memorializing a stipulated judgment with Welsh’s counsel, Wegrzynowicz, the terms of which were placed on the record in the Welsh Action. (Gomez Decl., ¶ 3.) Though Gomez anticipated that, once judgment is entered in the Welsh Action pursuant to the terms of a stipulated judgment, Welsh would follow the claims procedure set forth in paragraph 6 of the September 5 Order, Wegrzynowicz has advised Gomez that Welsh intends to execute on assets of the receivership to satisfy any judgment. (Id. at ¶¶ 3-4 & Exh. 1 [email from Wegrzynowicz].) Gomez also contends that, while Baker has been successful in keeping certain creditors “at bay” by informally discussing their claims and the September 5 Order, other claimants may also try to seize assets of the receivership in the future or refuse to follow the claims process set forth in the September 5 Order. (Id. at ¶ 5.) Gomez further states that at least one party has refused to turn over assets to Baker. (Ibid.)

The Court has no record of the filing of any opposition to the approval motion or the modification motion.

Analysis:

(1) The Approval Motion

A “receiver’s functions and powers are controlled by statute, by the order appointing him, and by the court’s subsequent orders. [Citations.] Code of Civil Procedure sections 568 and 568.5 authorize the receiver to perform such acts respecting the property as the court may authorize, including the sale of real and personal property upon notice and subject to court confirmation. …. The proper exercise of discretion requires the court to consider all material facts and evidence and to apply legal principles essential to an informed, intelligent, and just decision.” (Cal-American Income Property Fund VII v. Brown Development Corp. (1982) 138 Cal.App.3d 268, 273-274, footnotes omitted; see also Code Civ. Proc., §§ 568 & 568.5 [setting forth the receiver’s powers].) “It is well settled that a trial court has broad discretion in its directions and approvals given to a receiver in respect to management of the property.” (Hillman v. Stults (1968) 263 Cal.App.2d 848, 876.)

Under Code of Civil Procedure section 568 and the September 5 Order, Baker is authorized to “generally to do such acts respecting the property as the Court may authorize” and to take any action that Baker “deems necessary” to “safeguard, preserve, protect, and maximize the value of”, transfer, or wind down the business. (Code Civ. Proc., § 568; September 5 Order, ¶ 4(e).) The actions that Baker may undertake include “terminating any and all contracts and agreements relating to the business ….” (Sept. 5 Order, ¶ 4(e).) A court may also, upon the filing of an appropriate petition, authorize the abandonment of assets or property determined to be worthless or burdensome by the receiver. (Helvey v. U.S. Bldg. & Loan Ass’n of Los Angeles (1947) 81 Cal.App.2d 647, 650.)

Available information indicates that should Baker retain the property leases for the subject properties, personal property remaining at the subject properties, or the equipment lease with Raymond Forklift, all of which have been effectively turned over or abandoned by Fiore, the receivership will incur expenses to the detriment of other stakeholders and creditors of Fiore, as well as the receivership. It also appears that the rejection and abandonment of the property leases, personal property remaining at the subject properties, and the Raymond Forklift equipment lease proposed by Baker will minimize or eliminate administrative rent or other claims against the assets of the receivership, and will be in the best interests of the receivership and its stakeholders and creditors. Available evidence and information also indicates that no other person or entity has asserted an interest in the property leases, the equipment lease with Raymond Forklift, or any personal property which remains at the subject properties. The Court also has no record of the filing of any opposition to the approval motion by any party to this action.

The Court has reviewed the evidence and information offered by Baker in the approval motion and considered the arguments presented therein. Considering the evidence, information, and arguments presented, as well as the status of this action, it appears to the Court that the rejection of the property leases and the equipment lease with Raymond Forklift, and the abandonment of any personal property remaining at the subject properties, would preserve receivership assets for the benefit of the receivership and its creditors and stakeholders, and thereby improve the position of the receivership and its creditors and stakeholders. Therefore, and for all reasons discussed above, in the interests of fairness, justice, and the rights of the respective parties, the Court will grant the approval motion, and authorize Baker to reject the property leases, to reject the equipment lease with Raymond Forklift, and to abandon any personal property remaining at the subject properties. The Court will enter the order as requested in the motion. The Court has reviewed the proposed order submitted by Baker and intends to sign it.

(2) The Motion To Intervene

The right to intervene in a pending action is either as of right or permissive. (Code Civ. Proc., § 387, subd. (d)(1) & (2); Carlsbad Police Officers Association v. City of Carlsbad (2020) 49 Cal.App.5th 135, 148.) Upon a timely application and notwithstanding whether the intervention will expand the issues or impinge on the rights of the original parties to the action, a court must permit a nonparty to intervene in a pending action under circumstances where “[a] provision of law confers an unconditional right to intervene” or “[t]he person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.” (Code Civ. Proc., § 387, subd. (d)(1).) A nonparty may also intervene in a pending action if that person “has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.” (Code Civ. Proc., § 387, subd. (d)(2).)

“The purpose of allowing intervention is to promote fairness by involving all parties potentially affected by a judgment. [Citations.] The right to intervene granted by section 387, subdivision (a), is not absolute, however; intervention is properly permitted only if the requirements of the statute have been satisfied. [Citation.] The trial court is vested with discretion to determine whether the standards for intervention have been met. [Citations.]” (Simpson Redwood Co. v. State of California (1987) 196 Cal.App.3d 1192, 1199.) Further, “[i]t is well settled that the intervener’s interest in the matter in litigation must be direct, not consequential, and that it must be an interest which is proper to be determined in the action in which intervention is sought.” (Id. at pp. 1199-1200.)

Under circumstances where intervention is proper, a court may permit the nonparty to join the plaintiff in “claiming what is sought by the complaint[]”, to unite with a defendant to resist the plaintiff’s claims, or to demand anything which is adverse to both a plaintiff and a defendant. (Code Civ. Proc., § 387, subd. (b)(1)-(3).) The nonparty, who is deemed an intervenor, must “petition the court for leave to intervene by noticed motion or ex parte application. The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests.” (Code Civ. Proc., § 387, subd. (c).)

Welsh seeks to intervene in this action on the ostensible grounds that, pursuant to the settlement further described above, Welsh is entitled to a judgment against Fiore in the amount of the settlement sum. To the extent Welsh seeks to recover the settlement sum or any judgment to which Welsh may entitled under the terms of the settlement from the assets of Fiore, which are currently under the management of Baker in the receivership, Welsh has demonstrated an interest in the present action which may be impaired or impeded by the ultimate disposition of the property or assets of the receivership. (See Kreling v. Kreling (1897) 118 Cal. 421, 422-423 [general discussion of duties of receiver]; Maggiora v. Palo Alto Inn, Inc. (1967) 249 Cal.App.2d 706, 711-712 [same; also noting that the receiver “represents all persons interested in the property involved”]; Aviation Brake Systems, Ltd. v. Voorhis (1982) 133 Cal.App.3d 230, 234-235 [discussing res judicata effect of order discharging receiver].) There is also no evidence or information showing that the interest of Welsh in the property or assets at issue in the receivership is identical to or represented by any other party to this action. (See, e.g., City of Malibu v. California Coastal Com. (2005) 128 Cal.App.4th 897, 906.)

Furthermore, the undisputed available evidence and information shows that, as a result of the settlement between Fiore and Welsh in the Welsh Action, Welsh has a direct and immediate interest in the outcome of the present action which is capable of determination based on the settlement sum Fiore has agreed it owes to Welsh, as well as any judgment that may be entered in Welsh’s favor in the Welsh Action based on the settlement sum, such that Welsh may gain or lose by the effect of any disposition or distribution of receivership assets or property in this action. (Royal Indemnity Co. v. United Enterprises, Inc. (2008) 162 Cal.App.4th 194, 203-204.) There is also no evidence or information to show that the intervention proposed by Welsh will enlarge the issues, cause delay, or prejudice the rights of other parties to this action. (Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386.) For these and all further reasons discussed above, Welsh has made a sufficient and undisputed showing that he qualifies for intervention in this action whether as of right or on permissive grounds.

Under the totality of the circumstances present here, and considering the present stage of the proceedings, the absence of any evidence or information showing prejudice to any other party to this action, that the motion to intervene includes a copy of the proposed complaint in intervention, and that Welsh has sufficiently set forth the grounds upon which the proposed intervention rests, the Court finds that Welsh has complied with the required procedures for seeking intervention without unnecessary delay. (See Code Civ. Proc., § 387, subd. (c); Crestwood Behavioral Health, Inc. v. Lacy (2021) 70 Cal.App.5th 560, 574.) Therefore, and for all reasons discussed above, the Court will grant the motion to intervene and permit Welsh to intervene in this action. The Court will order Welsh to separately file his complaint in intervention in the form attached to the motion to intervene as exhibit 2, and to serve a copy of the complaint in intervention together with a notice of the Court’s ruling in accordance with the provisions of Code of Civil Procedure section 387, subdivision (e).

The Court’s ruling on the motion to intervene is without prejudice to any future procedurally appropriate pleading or other challenge that may be filed by Baker or any other party to this action.

(3) The Modification Motion

Apart from the general and speculative assertions offered by Baker and his counsel, there exists no evidence or information showing that any other party or creditor has executed upon, or intends to execute upon or attempt to seize, assets or property of the receivership apart from Welsh. In addition, the arguments offered in support of the modification motion indicate to the Court that the modification to the September 5 Order requested by Baker arises from statements made by counsel for Welsh with respect to whether Welsh intends to execute or levy upon assets or property of the receivership to satisfy any judgment that may be entered in the Welsh Action. As the information and evidence presented by Baker is directed specifically to these statements of Welsh’s counsel, the Court construes the modification motion as effectively directed to Welsh and any action that Welsh has indicated he will pursue to enforce any judgment entered in the Welsh Action.

There also presently exists no evidence or information indicating that a judgment has been or will imminently be entered in the Welsh Action, or that there exists an imminent threat of execution on any judgment entered in the Welsh Action. There is also nothing to suggest that Baker is or may be precluded or prevented from requesting, if appropriate, a stay of execution of any judgment that may be entered in the Welsh Action. Further, pending the filing and service of the complaint in intervention further discussed above, Welsh is not a party to this action.

Though the Court intends to exercise its discretion in a manner which ensures that the distribution of any property or assets of the receivership including the payment of creditor claims occurs in a fair, orderly, and efficient manner, without inappropriate or improper interference or conflict, due process concerns require that Welsh be provided with an opportunity to respond to the modification motion upon the filing of the complaint in intervention by Welsh. Therefore, the Court will continue the hearing on the modification motion, and will order that any response by Welsh to that motion be filed and served within the time provided for opposing a motion under Code of Civil Procedure section 1005, subdivision (b).