DEPARTMENT P LAW AND MOTION RULINGS
Case Number: 22AHCV01340 Hearing Date: March 7, 2025 Dept: P
[TENTATIVE] ORDER DENYING PLAINTIFF’S
MOTION TO COMPEL COMPLIANCE WITH COURT’S DEPOSITION ORDER and MONETARY
SANCTIONS I. INTRODUCTION This is a lemon
law case. Plaintiff Andy Meraz (“Plaintiff”) commenced this action against
Defendant American Honda Motor Co. (“Defendant”) following Plaintiff’s purchase
of a new Honda Accord in 2022. The complaint alleges three causes of action:
(1) violation of the Song-Beverly Act for breach of express warranty, (2)
violation of the Song-Beverly Act for breach of implied warranty, and (3)
fraudulent inducement by concealment. On October 25, 2024, Plaintiff
filed a motion to compel compliance. Defendant filed an opposition on November
12, 2024. Plaintiff has not filed a reply. II. LEGAL STANDARD “If a
deponent fails to answer any question or to produce any document,
electronically stored information,or tangible thing under the deponent's
control that is specified in the deposition notice or a deposition subpoena,
the party seeking discovery may move the court for an order compelling that
answer or production.” (Code Civ. Proc., section 2025.480(a); see Stewart v.
Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015 n. 3 [the
only proper basis to instruct a deponent to not answer a question is an
objection based upon a privilege or manifestly irrelevant questions or
questions designed only to harass.]) “If the court determines that the answer
or production sought is subject to discovery, it shall order that the answer be
given, or the production be made on the resumption of the deposition.” (Code
Civ. Proc., section 2025.480(i).)Failure to obey an order may be considered
contempt of court and could subject a party to the action to issue,
evidentiary, or terminating sanctions as well as monetary sanctions. (Code Civ.
Proc., section 2025.480(k).) “This motion shall be made no later than 60 days
after the completion of the record of the deposition and shall be accompanied
by a meet and confer declaration.”(Code Civ. Proc., section 2025.480(b).) III. ANALYSIS Plaintiff moves to compel the
deposition of Defendant’s PMQ to address deposition topics Nos. 1-9, 11-12,
17-19, 21-26, 51, 53, and 54, arguing that Defendant failed to comply with the
Court’s May 3, 2024, order. Plaintiff contends that the Court expressly
overruled Defendant’s substantive objections to the deposition notice and
granted the motion to compel without limitation. Plaintiff asserts that
Defendant’s refusal to produce a PMQ to testify on key topics violates the
clear terms of the order and obstructs Plaintiff’s ability to investigate
claims and prepare for trial. (Motion, pp. 2-3; Nandivada Decl., ¶ 5, Ex. B.) Specifically, Plaintiff highlights
that Ms. Pacheco was explicitly designated to testify on significant topics
central to Plaintiff’s claims under the Song-Beverly Act and fraudulent
inducement causes of action. These topics include information about the
defective Honda sensing system (Nos. 1-9, 11-12, 17-19, 21-26) and Defendant’s
discovery responses and warranty databases (Nos. 51, 53, and 54). (Motion, p.
5) Plaintiff argues that Defendant’s selective compliance undermines the
Court’s prior ruling, which granted Plaintiff the right to depose Defendant’s
PMQ on all topics identified in the deposition notice. (Nandivada Decl., ¶ 5,
Ex. B.) Plaintiff further asserts that
Defendant’s objections to the amended deposition notice were improper, as the
Court had already addressed and rejected these objections when ruling on the
initial motion to compel. Plaintiff contends that Defendant’s actions amount to
a unilateral attempt to limit the scope of discovery in defiance of the Court’s
order. (Motion, p. 6.) Plaintiff argues that this obstruction has prejudiced
Plaintiff’s ability to obtain evidence necessary to lay a foundation for
admissibility at trial, particularly regarding Defendant’s production of
documents and internal knowledge of defects in the Honda Sensing System.
(Motion, pp. 7-8.) Defendant opposes the motion,
arguing it fully complied with the Court’s May 3, 2024, order by producing Ms.
Jennifer Pacheco as its PMQ and scheduling the deposition within the 30-day
timeframe. Defendant asserts that it raised valid objections to certain topics
in Plaintiff’s amended deposition notice, identifying them as overbroad,
irrelevant, or beyond the scope of discovery. Defendant further contends that
Plaintiff failed to respond to these objections or raise concerns during or
immediately after the deposition, undermining Plaintiff’s claim that Defendant
failed to comply with the Court’s order. (Opposition, pp. 3, 6) Defendant also
argues that Plaintiff’s motion is untimely under Code of Civil Procedure
section 2025.480(b), as it was filed nearly five months after the May 31, 2024,
deposition—well beyond the 60-day statutory deadline. The Court finds that Plaintiff’s
motion to compel is untimely under Code of Civil Procedure section 2025.480(b),
which requires motions to compel further deposition testimony to be filed
within 60 days of the completion of the deposition record. The deposition of
Defendant’s PMQ, Jennifer Pacheco, was conducted on May 31, 2024. Plaintiff
filed the motion to compel on October 25, 2024, nearly five months after the
deposition and well beyond the statutory 60-day deadline. Courts have
consistently enforced this deadline to ensure the prompt resolution of
discovery disputes and to prevent undue delays in litigation. (Sexton v.
Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The deadline for filing a motion to
compel compliance expired on July 30, 2024. Furthermore, Plaintiff’s failure to
submit a reply in response to Defendant’s opposition reinforces the conclusion
that Plaintiff has not diligently pursued compliance with discovery
obligations. Based on the foregoing, the Court
DENIES Plaintiff’s motion to compel compliance as untimely. Sanctions Plaintiff seeks $2, 872.50 in
monetary sanctions, alleging that Defendant’s failure to comply with its
discovery obligations and refusal to produce a competent PMQ on specified
deposition topics constitute misuse of the discovery process under Code of
Civil Procedure section 2023.010. However, since the motion to compel
compliance is denied as untimely under Code of Civil Procedure section
2025.480(b), the underlying motion fails on procedural grounds. As a result,
Plaintiff’s request for monetary sanctions is likewise improper. Therefore, the
Court denies Plaintiff’s request for monetary sanctions. IV. CONCLUSION The Court DENIES Plaintiff’s motion
to compel compliance and request for monetary sanctions. Plaintiff
is to give notice. Dated: March 7, 2025 JARED D. MOSES Case Number: 23AHCV00045 Hearing Date: March 7, 2025 Dept: P
I.
Background This action arises from a breach of contract and
intentional interference with contractual relations lawsuit filed by Plaintiff
Navigators Real Estate, Inc. dba Pinnacle Real Estate Group (“Plaintiff”)
against Defendants Liping Huang, Jack Wei Chao, and Lina Ta (collectively,
“Defendants”). Plaintiff filed the complaint on January 6, 2023, asserting
causes of action for: (1) Breach of Contract and (2) Intentional Interference
with Contractual Relations. On February 10, 2025, Peter S. Deng, counsel for
Defendant Liping Huang, filed an unopposed motion to be relieved as counsel. II.
Legal
Standard The Court may issue an order allowing an attorney to
withdraw from representation after notice to the client. (CCP § 284.) The
attorney may withdraw from representation if the withdrawal would not result in
undue prejudice to the client's interest—i.e., counsel cannot withdraw at a
critical point in the litigation. (Ramirez v. Sturdevant (1994) 21 Cal.
App. 4th 904, 915; see California Rule of Professional Conduct 3-700.) The Court has discretion to grant or deny a motion
to be relieved as counsel, particularly when granting such a motion would cause
undue prejudice to the client's interests or result in “an unreasonable
disruption of the orderly processes of justice.” (People v. Ortiz (1990)
51 Cal. 3d 975, 979.) Furthermore, the Court may deny an attorney’s request to
withdraw “where such withdrawal would work an injustice or cause undue delay in
the proceeding.” (Mandell v. Superior Court (1977) 67 Cal. App. 3d 1,
4.) However, this discretion must be exercised reasonably, balancing the
client’s right to choose representation with the court’s duty to maintain the
orderly administration of justice. (Ibid.) In making a motion to be relieved as counsel, the
attorney must comply with procedures set forth in Cal. Rules of Court, rule
3.1362. The motion must be made using mandatory forms: 1.
Notice of Motion and Motion to be Relieved as Counsel directed to the client –
(MC-051). 2.
Declaration “stating in general terms and without compromising the
confidentiality of the attorney-client relationship” the reasons that the
motion was brought (MC-052). 3. Proposed Order (MC-053). The forms must be timely filed and served on all
parties who have appeared in the case. If these documents are served on the
client by mail, there must be a declaration stating either that the address
where client was served is “the current residence or business address of the
client” or “the last known residence or business address of the client and the
attorney has been unable to locate a more current address after making
reasonable efforts to do so within 30 days before the filing of the motion to
be relieved.” (Cal. Rules of Court, rule 3.1362(d)(1).) III.
Discussion Attorney
for Defendant Liping Huang, seeks to withdraw as counsel of record, citing
persistent and undue interference from Client’s son, Brian, who has engaged in
repeated unsanctioned communications with Counsel, issued directives
contradicting legal advice, and threatened unwarranted disciplinary actions.
Counsel asserts that these actions have compromised the effectiveness of the
litigation strategy and created an untenable working environment. (MC-052, p.1) The
motion complies with procedural requirements under California Rules of Court,
rule 3.1362. Counsel has submitted the required MC-051 (Notice of Motion),
MC-052 (Declaration), and MC-053 (Proposed Order). Mr.
Deng states that he served the client by mail at the client’s last known
address and that Ms. Liping Huang is residing in China. The only individuals
who can be contacted for this matter are her son and daughter-in-law. However,
her son is still in China, and the only person who can be reached is her
daughter-in-law via email at linaxx520@gmail.com. Counsel has already submitted
the motion to her. (MC-052, p.1.) The
next scheduled hearing in this case is a motion for attorney’s fees set for
April 4, 2025. Given these circumstances, the Court must balance the potential
prejudice to Defendant with Counsel’s justification for withdrawal. The Court
finds that Counsel has demonstrated sufficient cause for withdrawal and that
Defendant has adequate time to secure new representation before the upcoming
hearing. Therefore,
the Court GRANTS counsel’s motion to be relieved as counsel. IV.
Conclusion
and Order The
motion is GRANTED, effective upon the filing of proof of service of the signed
order on Defendant. Counsel
ordered to give notice. Dated: March 7, 2025 JARED
D. MOSES Case Number: 23AHCV00201 Hearing Date: March 7, 2025 Dept: P
I.
Background This action arises from a breach of contract and
intentional interference with contractual relations lawsuit filed by Plaintiff
Jing Shao (“Plaintiff”) against Defendants Liping Huang, Jack Wei Chao, and
Lina Ta (collectively, “Defendants”). Plaintiff filed the complaint on January
27, 2023, asserting causes of action for: (1) Breach of Contract and (2)
Intentional Interference with Contractual Relations. Plaintiff also seeks
specific performance under California Civil Code section 3387. On February 10, 2025, Peter S. Deng, counsel for
Defendant Liping Huang, filed an unopposed motion to be relieved as counsel. II.
Legal
Standard The Court may issue an order allowing an attorney to
withdraw from representation after notice to the client. (CCP § 284.) The
attorney may withdraw from representation if the withdrawal would not result in
undue prejudice to the client's interest—i.e., counsel cannot withdraw at a
critical point in the litigation. (Ramirez v. Sturdevant (1994) 21 Cal.
App. 4th 904, 915; see California Rule of Professional Conduct 3-700.) The Court has discretion to grant or deny a motion
to be relieved as counsel, particularly when granting such a motion would cause
undue prejudice to the client's interests or result in “an unreasonable
disruption of the orderly processes of justice.” (People v. Ortiz (1990)
51 Cal. 3d 975, 979.) Furthermore, the Court may deny an attorney’s request to
withdraw “where such withdrawal would work an injustice or cause undue delay in
the proceeding.” (Mandell v. Superior Court (1977) 67 Cal. App. 3d 1,
4.) However, this discretion must be exercised reasonably, balancing the
client’s right to choose representation with the court’s duty to maintain the
orderly administration of justice. (Ibid.) In making a motion to be relieved as counsel, the
attorney must comply with procedures set forth in Cal. Rules of Court, rule
3.1362. The motion must be made using mandatory forms: 1.
Notice of Motion and Motion to be Relieved as Counsel directed to the client –
(MC-051). 2.
Declaration “stating in general terms and without compromising the
confidentiality of the attorney-client relationship” the reasons that the
motion was brought (MC-052). 3. Proposed Order (MC-053). The forms must be timely filed and served on all
parties who have appeared in the case. If these documents are served on the
client by mail, there must be a declaration stating either that the address where
client was served is “the current residence or business address of the client”
or “the last known residence or business address of the client and the attorney
has been unable to locate a more current address after making reasonable
efforts to do so within 30 days before the filing of the motion to be
relieved.” (Cal. Rules of Court, rule 3.1362(d)(1).) III.
Discussion Attorney
for Defendant Liping Huang, seeks to withdraw as counsel of record, citing
persistent and undue interference from Client’s son, Brian, who has engaged in
repeated unsanctioned communications with Counsel, issued directives
contradicting legal advice, and threatened unwarranted disciplinary actions.
Counsel asserts that these actions have compromised the effectiveness of the
litigation strategy and created an untenable working environment. (MC-052, p.1) The
motion complies with procedural requirements under California Rules of Court,
rule 3.1362. Counsel has submitted the required MC-051 (Notice of Motion),
MC-052 (Declaration), and MC-053 (Proposed Order). Mr.
Deng states that he served the client by mail at the client’s last known
address and that Ms. Liping Huang is residing in China. The only individuals
who can be contacted for this matter are her son and daughter-in-law. However,
her son is still in China, and the only person who can be reached is her
daughter-in-law via email at linaxx520@gmail.com. Counsel has already submitted
the motion to her. (MC-052, p.1.) No
hearings are currently scheduled in this case. Therefore,
the Court GRANTS counsel’s motion to be relieved as counsel. IV.
Conclusion
and Order The
motion is GRANTED, effective upon the filing of proof of service of the signed
order on Defendant. Counsel
ordered to give notice. Dated: March 7, 2025 Case Number: 23AHCV02265 Hearing Date: March 7, 2025 Dept: P
[TENTATIVE] ORDER SUSTAINING IN
PART AND OVERRULING IN PART DEFENDANT’S DEMURRER AND GRANTING IN PART
DEFENDANT’S MOTION TO STRIKE I. INTRODUCTION On September 29, 2024, Plaintiff Damon
Brown, by and through his Guardian Ad Litem, Bettye Brown (hereinafter
“Plaintiff”) initiated instant action against Defendant Gem Healthcare, LLC
(“Defendant”) alleging 1) dependent adult neglect, 2) negligence and 3)
violation of patients’ rights. The lawsuit arises from the care provided to
Plaintiff Damon Brown during his stay at Defendant’s nursing facility. On October 23, 2024, Defendant
filed a demurrer with a motion to strike. Plaintiff filed a consolidated
opposition on February 24, 2025, and Defendant filed a reply on February 28,
2025. Meet and confer Pursuant to Code of Civil Procedure
section 430.41, subdivision (a), the demurring party is required to meet and
confer with the party who filed the pleading at least five days before the
responsive pleading is due. This must occur in person, telephone or by video
conference with the aim of resolving any objections raised in the demurrer.
Additionally, the demurring party must file and serve a declaration detailing
the meet and confer efforts. It should be noted, however, that the failure to
meet and confer is not itself grounds for sustaining or overruling a demurrer
or granting or denying a motion to strike. (Code Civ. Proc., §§ 430.41, subd.
(a)(4), 435.5, subd. (a)(4).) Here, Defendant did not satisfy the
meet and confer requirement. On October 15, 2024, Defendant’s counsel sent
written correspondence to Plaintiff’s counsel outlining the legal and factual
bases for the Demurrer and Motion to Strike and requested a discussion.
(Exhibit A.) On October 22, 2024, Defendant sent additional correspondence
regarding the Demurrer and Motion to Strike. However, there is no indication
that a meet and confer discussion occurred via telephone, in person, or by
video conference, as required by statute. (Lee Decl., ¶¶ 2-3.) II. LEGAL STANDARD A demurrer tests the legal
sufficiency of a complaint. Donabedian v. Mercury Ins. Co. (2004) 116
Cal.App.4th 968, 994. A plaintiff’s allegations must be accepted as true for
purposes of demurrer, no matter how “improbable” they are. (Del E. Webb
Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 (Del E.
Webb).) Allegations need not be accepted as true if they are contradicted
by judicially noticeable facts. (Cansino v. Bank of America (2014) 224
Cal.App.4th 1462, 1474.) Pleadings are to be broadly
construed (Code Civ. Proc., § 452) and demurrers are to be overruled where the
facts are sufficient to state any cause of action. (Quelimane Co. v. Stewart
Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) Code of Civil Procedure section
430.10, subdivision (f) provides for a demurrer where a pleading is uncertain.
Demurrers for uncertainty are disfavored and are only sustained where a
pleading is so incomprehensible a defendant cannot reasonably respond. (A.J.
Fistes v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695;
Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) III. ANALYSIS Defendant
demurs to Plaintiff’s Complaint specifically the first and third causes of
action for Dependent Adult Abuse & Neglect, and Violation of Patients
Rights for failure to state facts sufficient for the cause of action and
defendant is uncertain as it is vague and ambiguous. (Motion, p2) First cause of action - Dependent Adult Neglect Defendant demurs to the first cause
of action for Dependent Adult Neglect, arguing that Plaintiff fails to allege
facts demonstrating egregious neglect or reckless conduct, as required under
the Elder Abuse Act (Welf. & Inst. Code, § 15657). (Demurrer, p.4)
Defendant contends that Plaintiff’s allegations amount to mere negligence
rather than a conscious or willful disregard for Plaintiff’s safety. (Delaney
v. Baker (1999) 20 Cal.4th 23, 31; Carter v. Prime Healthcare Paradise
Valley (2011) 198 Cal.App.4th 396, 407-410.) Defendant asserts that Plaintiff’s
own allegations contradict claims of neglect. While Plaintiff claims Defendant
failed to notify a physician of changes in Plaintiff’s condition, the Complaint
admits that Plaintiff was transferred to a hospital for a higher level of care
on multiple occasions. (Comp. ¶¶ 6-7, 12.) Defendant argues that these
allegations demonstrate that Plaintiff received medical attention rather than
being subjected to neglect. Defendant further argues that
Plaintiff fails to allege the involvement of an officer, director, or managing
agent of a corporate defendant. (Demurrer, p. 9) Plaintiff’s Complaint contains
no specific facts showing that an officer, director, or managing agent
authorized, ratified, or had advance knowledge of the alleged wrongful conduct.
Defendant maintains that while the Complaint generally references understaffing
at the facility, it fails to identify any officer, director, or managing agent
who played a role in the alleged wrongdoing. (Demurrer, p. 10) Plaintiff argues that the Complaint
sufficiently pleads a cause of action for Dependent Adult Neglect. Plaintiff
cites Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 84, 87,
asserting that some care does not absolve a healthcare facility from liability
for neglect. (Opposition, p.3) Plaintiff alleges that Defendant
repeatedly failed to provide psychotropic medication as prescribed, administer
behavior monitoring and management interventions and ensure Mr. Brown was free
from significant medication errors. (Complaint, ¶ 5) Plaintiff further alleges
that Defendant failed to establish a system for acquiring, receiving,
dispensing, and administering medications, leading to delays and omissions in
Mr. Brown’s psychotropic medication. As a result, he suffered psychotic
episodes, became a danger to himself and others, was unable to eat or drink,
and required hospitalization for intravenous hydration and nutrition.
(Complaint, ¶ 6) Plaintiff contends that after
hospitalization, Defendant continued to withhold proper care, including failing
to administer medication and implement behavior monitoring, resulting in
further hospitalizations. (Complaint, ¶ 7) Plaintiff asserts that these
failures demonstrate a pattern of withholding care, establishing recklessness. Additionally, Plaintiff alleges
Defendant’s corporate officers ratified the neglect by knowingly understaffing
the facility and failing to provide adequate training and resources despite
being aware of the resulting harm to residents. Plaintiff contends this pattern
of neglect was intentional and profit-driven, supporting corporate liability
under Welfare & Institutions Code § 15657(c) and Civil Code § 3294(b).
(Complaint, ¶¶ 13, 15, 17) Therefore, Plaintiff argues that
the Complaint adequately pleads recklessness and ratification, warranting
denial of the Demurrer. (Opposition, p.6) To distinguish Dependent Adult Neglect
from Professional Negligence, there must be a showing of recklessness, fraud,
malice, or oppression. (See Covenant Care, Inc., supra, 32 Cal.4th at
783.) “Oppression, fraud, and malice involve intentional, willful, or conscious
wrongdoing of a despicable or injurious nature.” (Carter v. Prime Healthcare
Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405 (internal quotation
marks omitted).) Recklessness requires deliberate disregard of a high degree of
probability an injury will occur. (Id.) The enhanced remedies for Elder
Abuse are only available for “acts of egregious abuse against elder and
dependent adults.” (Id.) There must be an allegation of authorization or
ratification on the part of a managing agent in order to recover damages for
dependent adult abuse against corporate defendants. (See Civ. Code, § 3294;
Cal. Welf. & Inst. Code, § 15657(c).) To plead elder abuse, the plaintiff
must allege “facts establishing that the defendant: (1) had responsibility for
meeting the basic needs of the elder or dependent adult, such as nutrition,
hydration, hygiene or medical care [citations]; (2) knew of conditions that
made the elder or dependent adult unable to provide for his or her own basic
needs [citations]; and (3) denied or withheld goods or services necessary to
meet the elder or dependent adult’s basic needs, either with knowledge that
injury was substantially certain to befall the elder or dependent adult (if the
plaintiff alleges oppression, fraud or malice) or with conscious disregard of
the high probability of such injury (if the plaintiff alleges recklessness)
[citations].” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198
Cal.App.4th 396, 406-07.) “The plaintiff must also allege . . . that the
neglect caused the elder or dependent adult to suffer physical harm, pain or
mental suffering.” (Id. at 407.) “[T]he facts constituting the neglect
and establishing the causal link between the neglect and the injury ‘must be
pleaded with particularity,’ in accordance with the pleading rules governing
statutory claims.” (Id. (quoting Covenant Care, Inc. v. Superior
Court (2004) 32 Cal.4th 771, 790).) The Court agrees with Defendant
that Plaintiff’s allegations do not meet this heightened pleading standard.
Plaintiff fails to allege with particularity that Defendant was aware of
conditions rendering Plaintiff unable to care for himself and consciously
disregarded a known risk of harm. While Plaintiff asserts that Defendant failed
to administer medication, implement behavioral monitoring, and prevent
medication errors, these allegations describe negligent care—not recklessness
or intentional misconduct. Moreover, Plaintiff does not plead
any facts identifying a managing agent of Defendant or explaining how they
knowingly withheld necessary services with the awareness that serious injury
was substantially certain to occur. General allegations of understaffing and
cost-cutting, without specific facts showing corporate ratification or
authorization of egregious neglect, are insufficient to state a claim for
dependent adult abuse. Allegations of a failure to maintain specific
staff-to-patient ratios to address the needs of patients and ensure compliance
with state and federal law, understaffing, and inadequate training of staff is
generally indicative of negligent undertaking of medical services and not elder
abuse. (Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331,
337-38.) Based on the foregoing, the Court
SUSTAINS Defendant’s demurrer to the first cause of action with 20 days leave
to amend. Third cause of action - Violation of Patient’s Rights Health and Safety Code section 1430
provides that “[a] current or former resident or patient of a skilled nursing
facility . . . may bring a civil action against the licensee of a facility who
violates any rights of the resident or patient as set forth in the Patients
Bill of Rights in Section 72527 of Title 22 of the California Code of
Regulations, or any other right provided for by federal or state law or
regulation.” (Health & Safety Code, § 1430(b).) “The licensee shall be
liable for the acts of the licensee’s employees.” (Id.) Defendant demurs, arguing that
Plaintiff fails to identify any specific right violated or plead facts showing
how Defendant’s conduct constituted a statutory violation. (Demurrer, pp.
10-11.) Defendant contends that general allegations of deficient care do not
establish a claim under section 1430(b). Plaintiff opposes, asserting that
Defendant violated Mr. Brown’s rights by failing to administer medication,
provide behavioral monitoring, and ensure proper medication management.
(Opposition, p.8) Plaintiff argues these failures deprived Mr. Brown of rights
under Title 22, section 72527 of the California Code of Regulations and
resulted in significant harm. Plaintiff further contends that Defendant, as the
facility’s licensee, is liable for its employees’ actions. (Opposition, p. 7.) Here, the Court finds that although
Plaintiff has not specifically identified which rights under Title 22, section
72527, or other federal or state laws were violated, Plaintiff has alleged that
Defendant failed to provide medication, behavioral monitoring, and proper
medication management. These failures could constitute a violation of patient
rights under section 72527. Given that Plaintiff’s allegations support a
potential statutory violation, even if not explicitly stated, the Court finds
that Plaintiff has pleaded sufficient facts to survive demurrer. Thus, the Court OVERRULES the
demurrer as to this cause of action. Motion to strike The court may, upon a motion, or at
any time in its discretion, and upon terms it deems proper, strike any
irrelevant, false, or improper matter inserted in any pleading. (Code Civ.
Proc., § 436(a).) The court may also strike all or any part of any pleading not
drawn or filed in conformity with the laws of this state, a court rule, or an
order of the court. (Id., § 436(b).) The grounds for a motion to strike are
that the pleading has irrelevant, false, or improper matter, or has not been
drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to
strike must appear on the face of the pleading or by way of judicial notice.
(Id. § 437.) Defendant
moves to strike portions of Plaintiff’s Complaint, specifically:
Given that the Court has sustained
the demurrer in part as to the cause of action for Dependent Adult Abuse, the
motion to strike is GRANTED as to the request for punitive and exemplary
damages. However, because the Court OVERRULED the demurrer as to the third
cause of action for Violation of Patient’s Rights, the motion to strike is
DENIED as to references to remedies under Health and Safety Code section 1430. IV. CONCLUSION AND ORDER The Court
SUSTAINS Defendant’s demurrer to the first cause of action for Dependent Adult Neglect,
with 20 days leave to amend. The Court OVERRULES the demurrer as to the third
cause of action for Violation of Patient’s Rights. The Court further GRANTS in part
Defendant’s motion to strike, striking the request for punitive and exemplary
damages and attorney’s fees. Defendant is to give notice. Dated: March 7, 2025 JARED D. MOSES Case Number: 24NNCV01651 Hearing Date: March 7, 2025 Dept: P
[TENTATIVE] ORDER GRANTING
PLAINTIFF’S MOTION TO COMPEL THE DEPOSITION OF DEFENDANT’S EMPLOYEE KURT
WESTRICH and MONETARY SANCTIONS I. INTRODUCTION On May 16,
2024, Plaintiff Jenny Han ("Plaintiff") filed a complaint against
Defendant BMW of North America, LLC ("BMW") and Century West. LLC
d/b/a Century West BMW (“Century West”) alleging violations of the Song-Beverly
Warranty Act. Plaintiff contends that the 2023 BMW X6 she purchased exhibited
multiple defects and that BMW failed to either properly repair the vehicle or
repurchase it as required under the warranty. On February 10, 2025, Plaintiff
filed a motion to compel the deposition of BMW’s employee, Kurt Westrich. On
February 24, 2025, BMW filed an opposition. On February 28, 2025, Plaintiff
filed a reply. II. LEGAL STANDARD Code Civ.
Proc. §2025.450 provides relief where a party fails to appear for deposition
without having served a valid objection. It provides as follows: (a) If, after service of a
deposition notice, a party to the action or an officer, director, managing
agent, or employee of a party, or a person designated by an organization that
is a party under Section 2025.230, without having served a valid objection
under Section 2025.410, fails to appear for examination, or to proceed with it,
or to produce for inspection any document, electronically stored information,
or tangible thing described in the deposition notice, the party giving the
notice may move for an order compelling the deponent’s attendance and
testimony, and the production for inspection of any document, electronically
stored information, or tangible thing described in the deposition notice. (b) A motion under subdivision (a) shall comply with both of
the following: (1) [omitted] (2) The motion shall be accompanied by a meet and confer
declaration under Section 2016.040, or, when the deponent fails to attend the
deposition and produce the documents, electronically stored information, or
things described in the deposition notice, by a declaration stating that the
petitioner has contacted the deponent to inquire about the nonappearance. . . . (g)(1) If a
motion under subdivision (a) is granted, the court shall impose a monetary
sanction under Chapter 7 (commencing with Section 2023.010) in favor of the
party who noticed the deposition and against the deponent or the party with
whom the deponent is affiliated, unless the court finds that the one subject to
the sanction acted with substantial justification or that other circumstances
make the imposition of the sanction unjust. (2) On motion of any other party who, in person or by
attorney, attended at the time and place specified in the deposition notice in
the expectation that the deponent's testimony would be taken, the court shall
impose a monetary sanction under Chapter 7 (commencing with Section 2023.010)
in favor of that party and against the deponent or the party with whom the
deponent is affiliated, unless the court finds that the one subject to the
sanction acted with substantial justification or that other circumstances make
the imposition of the sanction unjust.. III. ANALYSIS Plaintiff
moves to compel the deposition of BMW of North America’s employee, Kurt
Westrich, asserting that despite repeated efforts to schedule the deposition,
BMW has failed to produce the witness. On November 15, 2024, Plaintiff served a
notice of deposition for Westrich, scheduling the deposition for December 5,
2024. (Wisniewski Decl., Exh. A.) BMW objected on November 26, 2024, refusing
to produce Westrich. (Wisniewski Decl., Exh. B.) Plaintiff subsequently sent a
meet-and-confer letter on December 5, 2024, and a follow-up email on January
28, 2025, but received no response. (Wisniewski Decl., Exhs. C, D.) BMW argues that Plaintiff’s motion
is unnecessary because, on February 21, 2025, it met and conferred with
Plaintiff’s counsel and offered an alternative witness, Daniel Mark, whom BMW
asserts is better suited to testify regarding the vehicle’s repurchase
decision. (Opposition, p. 2.) BMW contends that Plaintiff’s motion is intended
to harass and circumvent the meet-and-confer process, suggesting that Plaintiff
filed the motion despite BMW’s willingness to engage in discussions. (Id.) BMW
also asserts that Westrich was not directly involved in the repurchase decision
and that Plaintiff’s insistence on deposing him is unwarranted. (Opposition,
pp. 2-3.) Plaintiff responds that BMW only
engaged in meet-and-confer efforts after the motion was filed and that
documents produced in discovery indicate that Westrich was involved in BMW’s
customer service process regarding the vehicle at issue. (Reply, p.2) Plaintiff
further asserts that BMW cannot unilaterally determine which witnesses
Plaintiff may depose and that Plaintiff is entitled to depose both Westrich and
Mark. (Reply, p.3) Plaintiff asserts that Westrich’s
deposition is necessary, citing documents produced by BMW that identify him as
“Executive Customer Care, Customer Relations and Services” and show his
involvement in the decision to deny Plaintiff’s repurchase request. (Reply, p.
3.) The Court finds that Plaintiff has
demonstrated good cause to compel Westrich’s deposition, as the records
indicate his role in BMW’s handling of the repurchase decision. Additionally,
Plaintiff has established that the requested documents are relevant and
necessary for discovery. Therefore, the Court GRANTS
Plaintiff’s motion to compel the deposition of Kurt Westrich and the production
of documents. Sanctions Code of Civil Procedure section
2023.030, subdivision (a), authorizes the Court to impose a monetary sanction
for misuse of the discovery process, requiring the offending party, or their
attorney, to pay the reasonable expenses incurred by the opposing party,
including attorney’s fees. If a monetary sanction is authorized by any
provision of this title, the Court must impose that sanction unless it finds
that the offending party acted with substantial justification or that the
imposition of the sanction would be unjust. When a motion to compel under
Section 2025.450(a) is granted, the Court is required to impose monetary
sanctions in favor of the party who noticed the deposition and against the
deponent or the party with whom the deponent is affiliated, unless the Court
finds that the subject of the sanction acted with substantial justification or
that the circumstances render the imposition of the sanction unjust. (C.C.P. §
2025.450(c)(1)). The purpose of discovery sanctions is to prevent abuse of the
discovery process and to correct the problem presented. Do v. Superior Court
(2003) 109 Cal. App. 4th 1210, 1213. Plaintiff requests monetary
sanctions in the amount of $1,400.00, arguing that BMW’s refusal to produce
Westrich necessitated the filing of this motion. Plaintiff's counsel states
that preparing the motion took 1.5 hours, and they anticipate expending an
additional 2 hours to review the opposition, draft the reply, and attend the
hearing, totaling 3.5 hours at an hourly rate of $400.00. (Wisniewski Decl., ¶
8.) The Court finds that BMW’s failure
to engage in meaningful meet-and-confer efforts before Plaintiff filed this
motion constitutes a misuse of the discovery process under Code of Civil
Procedure section 2023.010. BMW did not offer an alternative witness until
after the motion was filed. Given these circumstances, the Court determines
that sanctions are warranted IV. CONCLUSION AND ORDER The Court
GRANTS Plaintiff’s motion to compel deposition of Kurt Westrich and production
of documents. Plaintiff’s request for monetary
sanctions is GRANTED in the amount of $1, 400.00, payable within 30 days of
this order. The parties are urged to meet and
confer in person or otherwise and agree on a date for the deposition, which
must occur within 45 days of this order. Plaintiff is ordered to give notice.
Dated: March 7, 2025 JARED D. MOSES Case Number: 24NNCV01900 Hearing Date: March 7, 2025 Dept: P
[TENTATIVE] ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL FURTHER REQUEST FOR PRODUCTION OF DOCUMENTS – SET ONE I. INTRODUCTION This is a lemon law action arising under the Song-Beverly Consumer
Warranty Act. Plaintiff Fernando Valencia Sosa (“Plaintiff”) filed this action
against Nissan North America, Inc. (“NNA”) and Glendale Nissan/Infiniti, Inc.
(“Glendale”) on May 29, 2024, alleging that NNA failed to repair defects in
Plaintiff’s 2019 Infiniti QX60 within a reasonable number of attempts and
refused to repurchase the vehicle as required under the Act. On January 17, 2025, Plaintiff filed a Motion to Compel Further Responses
to Plaintiff’s Request for Production (RFP), Set One, Nos. 8, 30, and 31. On
February 24, 2025, NNA filed its opposition and on February 28, 2025, Plaintiff
filed a reply. Meet and confer A motion to compel further discovery responses must be accompanied by a
meet and confer declaration stating, “facts showing a reasonable and good faith
attempt at an informal resolution of each issue presented by the motion.” (Code
Civ. Proc. §§ 2031.310, subd. (b)(2); 2016.040.) Here, On December 27, 2024, Plaintiff’s counsel and NNA’s counsel
discussed the outstanding discovery issues by phone, during which Plaintiff
explained their position. This call was followed by an email summarizing the
discussion. On January 14, 2025, Plaintiff sent a follow-up email, but no
response has been received (Motion, pp. 4-5). Thus, Plaintiff has met the meet and confer requirement in good faith. II. LEGAL STANDARD A motion to compel further
responses to a demand for inspection or production of documents (“RFP”) may be
brought based on: (1) incomplete statements of compliance; (2) inadequate,
evasive or incomplete claims of inability to comply; or (3) unmerited or overly
generalized objections. (Code Civ. Proc., § 2031.310(c).) A motion to compel a further
response to interrogatories or production of documents must be noticed within
45 days of the service of the verified response, or any supplemental verified
response, or on or before any specific later date to which the propounding
party and the responding party have agreed in writing. (Cal. Code of Civ. Proc.
§§ 2030.300(c), 2031.310(c); see also Sexton v. Superior Court (1997) 58
Cal.App.4th 1403, 1409; Vidal Sassoon, Inc. v. Superior Court (1983) 147
Cal.App.3d 681, 685).) Otherwise, the propounding party waives any right to
compel further responses. (Id.) The 45-day time limit is mandatory and
jurisdictional. (Sexton, supra,58 Cal. App. 4th at 1410.) An unverified response is
tantamount to no response at all. (See Appleton v. Superior Court (1988)
206 Cal.App.3d 632, 636.) However, objections to interrogatories and requests
for production are not required to be verified because “objections are legal
conclusions interposed by counsel, not factual assertions by a party.” (Blue
Ridge Insurance Co. v. Superior Court (1988) 202 Cal.App.3d 339, 345.) III. ANALYSIS Plaintiff moves the Court to compel
NNA to provide further responses to Plaintiff’s RFP Set One, specifically Nos.
8, 30, and 31. RFP No.8 This request seeks information
regarding recalls, technical service bulletins (TSBs), and dealer advisories
related to the subject vehicle, requiring the production of complete documents
rather than summaries or titles (SS, p.14). Plaintiff argues that these
materials are relevant to establishing NNA’s knowledge of defects in the
vehicle and its repair history under the Song-Beverly Consumer Warranty Act
(SS, p.3). NNA objects to this request on
several grounds, arguing that it has already conducted a diligent search and
produced all relevant documents, including the vehicle’s service history,
warranty information, and applicable TSBs (Opposition, p.4). NNA further
contends that Plaintiff is already in possession of the requested information
and that Plaintiff’s request is overbroad and seeks documents unrelated to the
actual complaints made about the vehicle (D SS, p.3) The Court finds that this request
is relevant and not overly broad as to the documents sought. Plaintiff seeks
further responses regarding TSBs applicable to the Subject Vehicle and its
defects (SS, p.15). The requested TSBs were created in response to defects
identified by NNA, and the documents leading to their creation may contain
relevant information regarding NNA’s awareness and investigation of those
defects. Such information is directly related to Plaintiff’s claims and may
bear on the issue of whether the Subject Vehicle experienced a defect covered
under warranty. As NNA has not fully produced the
requested documentation, the Court compels NNA to provide further responses and
produce the relevant documents. RFP No. 30 and 31 These requests seek documents
regarding similar customer complaints in vehicles of the same year, make, and
model as Plaintiff’s vehicle (Motion, p.3). Plaintiff contends that this
information is crucial to demonstrating NNA’s prior knowledge of the defect and
its failure to repurchase vehicles with known issues, which supports
Plaintiff’s claim for civil penalties under the Song-Beverly Act (SS, p.3). NNA objects to these requests,
arguing that they amount to improper "class-action style" discovery,
seeking information on vehicles and customers unrelated to Plaintiff’s specific
claim (Opposition, p.4). NNA also argues that customer complaints are not
necessarily indicative of actual defects and that such information is
irrelevant to whether Plaintiff’s vehicle suffered from a defect that was not
repaired within a reasonable number of attempts (D SS, p.4). Further, NNA
asserts that producing these documents would be unduly burdensome, as it would
require reviewing vast amounts of electronically stored information.
(Opposition, p.5). Plaintiff argues in reply that
California courts have routinely held that discovery of similar defects in
other vehicles is relevant in warranty cases, as it helps establish a
manufacturer’s knowledge of defects and potential willful violations (Reply, p.4).
Plaintiff cites case law supporting the admissibility of such evidence, including
Bowser v. Ford Motor Co. (2022) 78 Cal.App.5th 587 and Donlen v. Ford
Motor Co. (2013) 217 Cal.App.4th 138, which recognized that internal
manufacturer documents regarding other vehicles with similar issues can be used
to establish liability under the Song-Beverly Act (SS, p.4). Plaintiff further
asserts that NNA has failed to demonstrate a legitimate burden, as it has not
provided specifics regarding the difficulty of retrieving the requested
documents (Reply, p.4). The Court finds that Plaintiff is
entitled to discovery regarding other customer complaints involving similar
defects, as such information is relevant to NNA’s knowledge and potential
liability under the Song-Beverly Act (Motion, p.3). Plaintiff cites precedent
where similar discovery requests were deemed permissible, and the Court
recognizes that the Act is a remedial statute intended to protect consumers and
should be construed accordingly. The requested information may help establish a
pattern of defects and NNA’s awareness of such defects, which is relevant to
Plaintiff’s claims. Therefore, the Court GRANTS
Plaintiff’s motion to compel further responses to RFP Nos. 30 and 31. IV. CONCLUSION AND ORDER The Court
GRANTS Plaintiffs’ motion to compel further responses and orders NNA to provide
further responses to RFP Nos. 8, 30 and 31. Plaintiff
to give notice. Dated: March 7, 2025 JARED D. MOSES
|
DEPARTMENT P LAW AND MOTION RULINGS
Case Number: 23AHCV00740 Hearing Date: March 6, 2025 Dept: P
[TENTATIVE] ORDER GRANTING
DEFENDANT CITY OF SOUTH PASADENA’S MOTION TO COMPEL NEUROPSYCHOLOGICAL
EXAMINATION I. INTRODUCTION Plaintiff John Patrick Knighton (“Plaintiff”) brings this action against
Defendant City of South Pasadena and Defendant County of Los Angeles, asserting
claims for dangerous condition of public property under Government Code § 835
and negligence. On December 10, 2024, Plaintiff filed a First Amended Complaint
(FAC), adding Doe 1 Defendant West Coast Arborist, Inc. Plaintiff alleges that on May 10, 2022, while riding a scooter on Glendon
Way in South Pasadena, he lost control and fell due to an uneven and
deteriorated roadway, resulting in severe physical and mental injuries. On February 6, 2025, Defendant City of South Pasadena (“City”) filed the
present motion to compel a neuropsychological examination of Plaintiff.
Plaintiff opposed the motion on February 21, 2025, and City filed a reply on
February 27, 2025. II. LEGAL STANDARD California Code of Civil Procedure
section 2032.310 provides that a party shall obtain leave of court if the party
desires to obtain discovery by a mental examination. (See Code Civ. Proc. §
2032.310(a).) The motion must specify the time, place, manner, conditions,
scope, and nature of the examination. (Id., 2032.310(b).) The motion
must also specify the identity and specialty of the person who will be
performing the examination. (Id.) A meet and confer declaration must
accompany the motion. (Id.) III. ANALYSIS City moves
to compel Plaintiff to submit to a neuropsychological examination conducted by
City’s retained expert, Dr. Robert Bilder, Ph.D. (Motion, p.2). On January 15,
2025, City’s counsel requested that Plaintiff stipulate to a neuropsychological
examination. Plaintiff’s counsel sought clarification on the scope of the exam
and demanded raw test data and audio recordings. On January 22, 2025, defense
counsel sent a draft stipulation but refused to provide raw data directly to
Plaintiff’s counsel. The parties agreed Plaintiff would undergo the exam but
remained in dispute over raw data disclosure and recording. After further
unsuccessful meet-and-confer efforts, City filed this motion. There is no dispute that Plaintiff
will submit to the neuropsychological examination. The issue before the Court
is whether Plaintiff’s counsel is entitled to receive raw test data and whether
Plaintiff may audio record the entirety of the examination (Opposition, p. 2). Plaintiff relies on Randy’s
Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818, arguing that
the disclosure of raw test data falls within the broad discretion of the trial
court (Opposition, p.3). Plaintiff argues that under CCP §§ 2032.610 and
2032.620, he is entitled to all results of tests made, which should be
interpreted broadly to include raw neuropsychological data (Opposition, p.4). Plaintiff argues that without
access to raw test data and an audio recording, he cannot effectively
cross-examine City’s expert or adequately prepare for trial. He also asserts
that access under a protective order would minimize the risk of improper
distribution to third parties. (Motion, p.7). Plaintiff requests that all raw
data and findings be subject to a protective order, with instructions to
destroy the data at the conclusion of the case. (Opposition, p.4). City opposes the disclosure of raw
test data and full audio recordings, asserting that a protective order is
insufficient to safeguard test integrity (Reply, p.6). City’s expert, Dr.
Bilder, declares that the APA Ethical Principles prohibit releasing raw test
data to unqualified individuals, including attorneys, and cites APA Ethical
Standard 9.11, which requires maintaining the security and integrity of test
materials (Bilder Decl., ¶4). City argues that multiple courts have ruled that
test security outweighs broad discovery rights, supporting a limitation of
disclosure to Plaintiff’s retained neuropsychologist only (Reply, p. 7). City
further contends that disclosing raw data to attorneys creates a risk of
misuse, improper coaching of future plaintiffs, and manipulation of test
responses, ultimately undermining the reliability of neuropsychological testing
(Reply, p. 6). City further argues that If the
Court orders such disclosure, Dr. Bilder will withdraw from the case, leaving City
prejudiced with trial only four months away and making it nearly impossible to
find another licensed neuropsychologist willing to violate ethical standards. City
further asserts that a majority of neuropsychologists in California have
publicly stated they will not conduct exams under such conditions, reinforcing
the risk of expert unavailability. (Reply. p.7) In Randy’s Trucking, the
trial court granted the defendants’ motion to compel a mental examination and
ordered the defendants’ neuropsychologist to transfer raw data and an audio
recording of the examination to plaintiff’s counsel, subject to a protective
order (Randy’s Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th
818, 824). The Court of Appeal recognized that while no statute mandates the
disclosure of test materials in a mental examination, there is also no
statutory authority prohibiting a trial court from exercising its discretion to
bar disclosure of written test questions and answers (Id. at p. 834 [citing Carpenter
v. Superior Court (2006) 141 Cal.App.4th 249]). Randy’s Trucking declined to
establish a bright-line rule restricting the disclosure of neuropsychological
testing materials, raw test data, and audio recordings exclusively to licensed
neuropsychologists or psychologists. Instead, the court noted that concerns
regarding test security and expert non-compliance with disclosure orders are
policy issues best addressed by the Legislature, which has the authority to
create evidentiary rules governing the transmission of discovery materials (Randy’s
Trucking, supra, at p. 848). Here, City submits the Collective
Statement on the Importance of Protecting Psychological Test Materials
(Valencia Decl., ¶5; Exh. A), which underscores the critical need for test
security and the ethical prohibitions against disclosing raw test data and
materials to non-psychologists. The statement, endorsed by numerous licensed
neuropsychologists, warns that disclosure to attorney’s risks test
manipulation, undermines validity, and facilitates improper coaching of future
plaintiffs, ultimately compromising the scientific reliability of
neuropsychological assessments. More persuasively, City argues that
finding a replacement expert before the July 1, 2025, trial would be
exceedingly difficult, as many neuropsychologists refuse to release protected
test information and would likely recuse themselves rather than comply with
such an order (Valencia Decl., ¶¶4-7, 18, Exh. A). Given the Court’s broad
discretion in discovery matters and City’s demonstrated prejudice in
potentially losing Dr. Bilder and struggling to secure another expert, the
Court denies Plaintiff’s request for raw data disclosure. However, to ensure fairness in
discovery while upholding test security, the Court permits disclosure of all testing,
raw test data and audio recording only to a licensed psychologist retained by
Plaintiff. IV. CONCLUSION AND ORDER The Court
GRANTS City’s motion to compel and orders Plaintiff to attend the
neuropsychological examination conducted by Dr. Bilder on March 10, 2025. The
Court DENIES Plaintiff’s request for the raw test data and audio recordings to
be provided to Plaintiff’s counsel but permits disclosure to a licensed
psychologist retained by Plaintiff. City to
give notice. Dated: March 6, 2025
Case Number: 23AHCV01014 Hearing Date: March 6, 2025 Dept: P
[TENTATIVE] ORDER GRANTING
PLAINTIFF’S MOTION TO BIFURCATE I. INTRODUCTION On May 4, 2023, Plaintiff Perla Mageno (“Plaintiff”) filed this action
against Defendant Flavor of India Enterprises, Inc. (“Defendant”) for
violations of the Unruh Civil Rights Act, California Civil Code § 51. On February 10, 2025, Plaintiff filed a motion to bifurcate trial into
two phases. Defendant has not filed an opposition. II. LEGAL STANDARD Upon a properly noticed motion of a
party made no later than the close of pretrial conference, a court may
bifurcate a trial into separate issues when the convenience of witnesses, the
ends of justice, or the economy and efficiency of handling the litigation would
be promoted thereby. (CCP § 598.) The court, in furtherance of convenience or
to avoid prejudice, or when separate trials will be conducive to expedition and
economy, may order a separate trial of any cause of action, or of any separate
issue of any number of causes of action, preserving the right of trial by jury
as required by the Constitution or a statute of this state or of the United
States. (CCP §1048(b). III. ANALYSIS Plaintiff
moves to bifurcate trial into two phases, arguing that addressing the equitable
issues first—standing, declaratory relief, and injunctive relief—will
streamline the subsequent jury trial on statutory damages. Plaintiff asserts
that resolving standing and determining entitlement to declaratory relief in
the first phase will provide the jury with necessary legal guidance on whether
Defendant’s website violates the ADA. (Motion, p.8) Plaintiff further contends that
bifurcation promotes judicial efficiency and is consistent with case law
favoring the resolution of equitable claims before legal claims. (Motion, p. 5,
citing Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1244; Bate v.
Marsteller (1965) 232 Cal.App.2d 605, 617.) Defendant has not filed an
opposition. The Court finds that Plaintiff has demonstrated that bifurcation is
appropriate under Code of Civil Procedure sections 598 and 1048. Resolving the
issues of standing, declaratory relief, and injunctive relief in a bench trial
before proceeding to a jury trial on statutory damages will clarify key legal
questions and may narrow or eliminate factual disputes for the jury. Therefore, the Court GRANTS
Plaintiff’s motion to bifurcate trial. IV. CONCLUSION AND ORDER The Court GRANTS Plaintiff’s motion
to bifurcate trial. Plaintiff to give notice. Dated: March 6, 2025
JARED D. MOSES
Case Number: 24NNCV00869 Hearing Date: March 6, 2025 Dept: P
[TENTATIVE] ORDER GRANTING DEFENDANT
QUIXOTE STUDIOS LLC’S MOTION TO COMPEL THE PLAINTIFF'S DEPOSITION AND MONETARY
SANCTIONS I. INTRODUCTION This is a
personal injury action. On April 10, 2024, Plaintiff Crystal Del Toro
(“Plaintiff”) filed this lawsuit against Defendants Shawn Garcia, Tool of North
America, LLC, and Quixote Studios, LLC (“Quixote”) (collectively,
“Defendants”), alleging negligence arising from a motor vehicle collision on
April 26, 2022. Defendant Quixote noticed
Plaintiff’s deposition for September 19, 2024. Plaintiff appeared and provided
over three hours of testimony before leaving, asserting that defense counsel’s
questioning became harassing. On January 30, 2025, Quixote filed
this motion to compel Plaintiff’s continued deposition. Plaintiff opposed the
motion on February 24, 2025, arguing that she fully participated in the
deposition and that defense counsel’s questioning was improper. Quixote filed
its reply on February 27, 2025. II. LEGAL STANDARD C.C.P.
§2025.480 provides, in pertinent part, as follows: (a)If a deponent fails to answer any question or to produce
any document, electronically stored information, or tangible thing under the
deponent’s control that is specified in the deposition notice or a deposition
subpoena, the party seeking discovery may move the court for an order
compelling that answer or production. (b)This motion shall be made no later than 60 days after
the completion of the record of the deposition, and shall be accompanied by a
meet and confer declaration under
Section 2016.040. (c)Notice of this motion shall be given to all parties and
to the deponent either orally at the examination, or by subsequent service in
writing. If the notice of the motion is given orally, the deposition officer
shall direct the deponent to attend a session of the court at the time
specified in the notice. *** (j)The court shall impose a monetary sanction under Chapter
7 (commencing with
Section 2023.010) against any party, person, or attorney who unsuccessfully
makes or opposes a motion to compel an answer or production, unless it finds
that the one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust. commencing
with Section 2023.010) in favor of that party and against the deponent or the
party with whom the deponent is affiliated, unless the court finds that the one
subject to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust. III. ANALYSIS Quixote
moves to compel Plaintiff’s continued deposition, arguing that Plaintiff failed
to complete her deposition on September 19, 2024, when she and her attorney
abruptly left after Quixote’s counsel began questioning her about her medical
records. (Motion, p.3) Quixote asserts that Plaintiff’s deposition remains
incomplete, and, despite multiple requests, Plaintiff failed to provide timely
availability, necessitating court intervention. (Motion, p.4) In opposition, Plaintiff argues
that she sat for over three hours and answered more than 50 questions regarding
her alleged drug use before the deposition ended. (Opposition, p.3) Plaintiff
contends that Quixote’s counsel engaged in repetitive and harassing
questioning, prompting her attorney to end the deposition. (Opposition, p.4)
Plaintiff further argues that Quixote’s motion is untimely under CCP §
2025.480(b), which requires motions to compel deposition answers to be filed
within 60 days after the completion of the deposition record. (Opposition, p.4) However, Plaintiff has since
provided two alternative dates (March 27 and March 28, 2025) for the continued
deposition. (Opposition, p.3.) Quixote rejected these dates, insisting that the
deposition be completed before the hearing on this motion and that Plaintiff
pay Quixote’s costs. (Lewis Decl., ¶ 2; Exh. A.) The Court finds that Plaintiff has
already agreed to appear for the continued deposition and has provided two
available dates. There is no dispute as to whether the deposition should occur.
However, because the parties have not reached an agreement on the date, the
Court compels Plaintiff’s deposition and orders the parties to meet and confer
in good faith to select a mutually agreeable date. Sanctions Code of Civil Procedure section
2023.030, subdivision (a), authorizes the Court to impose a monetary sanction
for misuse of the discovery process, requiring the offending party, or their
attorney, to pay the reasonable expenses incurred by the opposing party,
including attorney’s fees. If a monetary sanction is authorized by any
provision of this title, the Court must impose that sanction unless it finds
that the offending party acted with substantial justification or that the
imposition of the sanction would be unjust. Quixote’s request Quixote seeks $6,583.10 in
sanctions, including attorney’s fees for drafting and litigating this motion
and court reporter costs from Plaintiff’s prior deposition. (Lewis Dec. ¶10,
Exh. H.) Quixote’s counsel bills $350 per hour and claims $2,625.00
in fees for preparing the motion, reviewing the opposition, drafting the reply,
and attending the hearing. Quixote also incurred $1,979.05 in deposition costs
and anticipates the same amount for the continued deposition. (Lewis Dec., Exh.
H.) The Court finds the hourly rate
reasonable but reduces compensable attorney time to 3 hours given the motion’s
straightforward nature, awarding $1,050 in attorney’s fees ($350 x 3 hours).
The Court declines to award deposition costs, as Plaintiff answered numerous
questions and the nature of the questioning provided substantial justification
for ending the deposition. Thus, the Court awards $1,050 in
monetary sanctions payable by Plaintiff and her counsel within 20 days of this
order. Plaintiff’s request Plaintiff seeks $1,500 in sanctions
against Quixote and its counsel for allegedly misusing the discovery process by
filing an unnecessary and untimely motion. (Opposition, p.7) The Court declines
to award sanctions against Quixote, as Plaintiff’s delay in providing
deposition dates contributed to this motion being filed. IV. CONCLUSION AND ORDER Motion to
compel Plaintiff’s deposition is GRANTED Quixote’s request for monetary
sanctions is GRANTED in the amount of $1,050. The parties are urged to meet and
confer and agree on a date for the deposition. However, the Court orders that
the deposition go forward within 30 days 0f this order. Likewise, Plaintiff is to pay sanctions
within 30 days of this order. Quixote is to give notice. Dated: March 6, 2025 JARED D. MOSES
|
DEPARTMENT P LAW AND MOTION RULINGS
Case Number: 23AHCV02126 Hearing Date: March 14, 2025 Dept: P
Case
Name: James
P. Pollerana, et al. v. City of Pasadena, et al. Case
Number: 23AHCV02126 Motion: Motion
by Michael J. Yepp, Esq., Gary A. Dordick, Esq., and Robert B. Reagan, Esq. to be Relieved as Counsel for Plaintiffs Hearing
Date: March
14, 2025 I.
Background In this wrongful death action, Plaintiffs James P.
Pollerana, Deanna Pollerana and James D. Pollerana (collectively, “Plaintiffs”)
allege that decedent Anna Pollerana was struck and killed by a speeding car on
September 8, 2022, while she was crossing the street. The complaint contains
three causes of action: (1) wrongful death, dangerous condition of public
property; (2) negligence-failure to warn and (3) negligent entrustment. On April 29,
2024, the Court sustained Defendants’ demurrer to the first cause of
action with 20 days leave to amend. II.
Legal
Standard Motions to be relieved as
counsel must be made on mandatory judicial council forms MC-051, MC-051, and
MC-053. III.
Discussion On February
21, 2025, Counsel Michael J. Yepp, Esq., Gary A. Dordick, Esq., and Robert B.
Reagan, Esq. moved the Court to be relieved as attorney of record for Plaintiffs.
Counsel filed a Notice of Motion and Motion (MC-051). Counsel also filed a
Declaration in Support of the Motion (MC-052) explaining that “Plaintiffs
counsel and clients have had a breakdown in communications. Plaintiffs counsel
has tried diligently to resolve various issues and has otherwise provided
zealous advocacy but continued, effective, meaningful representation is no
longer possible for reasons that cannot be disclosed without divulging
attorney-client confidences.” (MC-052, ¶ 2.) This is a valid reason for
withdrawal. (See Rules Prof. Conduct, rule 1.16.) Counsel has also
filed a Proposed Order, Form MC-053. All forms were served on Plaintiffs. (MC-052 ¶ 3a)Counsel
confirmed Plaintiffs’ address within the past 30 days by running a search
confirming their address.(MC-052 ¶ 3b.)All forms were served on Defendants
per the attached proofs of service. Finally, there is no showing that
withdrawal would cause injustice or undue delay in the proceedings. Counsel’s Motion is GRANTED. Case Number: 24AHCV00017 Hearing Date: March 14, 2025 Dept: P
[TENTATIVE]
ORDER GRANTING PLAINTIFF’S MOTIONS TO DEEM REQUEST FOR ADMISSIONS ADMITTED AND
MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES AND AWARDING SANCTIONS I. INTRODUCTION On January 3, 2024,
Plaintiffs Geoffrey Hanes Wall (Wall) and Kang Seung Lee (Lee) filed a
complaint against Defendants Maria Manuela Florez (Maria) and Gustavo Adolfo
Florez (Gustavo).[1] On July 18, 2024,
Plaintiffs filed a first amended complaint (FAC), alleging causes of action for
Nuisance, Trespass, Violation of the Ralph Civil Rights Act, Violation of the
Tom Bane Civil Rights Act, Assault, Battery, Intentional Infliction of Emotional
Distress, and Negligence. The FAC claims that Defendant Gustavo, the son of
Defendant Maria, has a well-documented history of violent and threatening
behavior towards his family and neighbors, predating Plaintiffs’ move into the
neighborhood. Gustavo is alleged to have a reputation for using his large dogs
to follow, chase, threaten, and intimidate neighbors, prompting multiple police
reports and complaints to city representatives. Further, the FAC alleges that upon
moving into their property, Plaintiffs immediately noticed multiple dogs in
Defendants' backyard, which allegedly barked, howled, and yelped excessively
for several hours at all times of day. The FAC claims that animal control
visited Defendants’ property multiple times and removed dogs for being
unlicensed or exceeding the allowable limit of four dogs as per L.A. County
Code § 10.20.038, subd. (A). Despite these actions and notices from Plaintiffs,
the dog noise reportedly persists. Additionally, the FAC alleges that
Defendants threw rocks and other objects at Plaintiffs' property and shouted
derogatory epithets at Plaintiffs, who are gay men. Furthermore, Plaintiffs
allege that on May 26, 2024, Defendants sprayed them with water while shouting,
“You’re not getting a dime out of me!” Plaintiff Wall filed the motions to
deem requests for admission admitted as to both Defendants Maria and Gustavo
and the motion to compel responses from Defendant Gustavo to special
interrogatories on February 18, 2025. No opposition to any of the three motions
has been filed. Before the Court is Plaintiff Wall’s motions
to deem requests for admission admitted as to both Defendants Maria and Gustavo
and motion to compel responses from Defendant Gustavo to special
interrogatories. Because Defendants have not responded to the discovery
requests, the motions are granted, and sanctions are warranted. II. LEGAL
STANDARD Code
Civ. Proc. Section 2030.290 provides that when a party to whom interrogatories
has been propounded fails to serve a timely response, that party waives any
objection to the interrogatories; it further provides that the propounding
party may move for an order compelling a response to the interrogatory.
Subdivision (c) provides for monetary sanctions in connection with such motion.
(CCP § 2030.290.) “If a party to whom requests for admission are
directed fails to serve a timely response, the following rules apply: (b) The
requesting party may move for an order that the genuineness of any documents
and the truth of any matters specified in the requests be deemed admitted…. The
Court, on motion, may relieve that party from this waiver on its determination
that both of the following conditions are satisfied: (1) The party has subsequently
served a response that is in substantial compliance with Sections 2033.210,
2033.220, and 2033.230. (2) the party’s failure to serve a timely response was
the result of mistake, inadvertence, or excusable neglect…. (c) The court shall
make this order, unless it finds that the party to whom the requests for
admission have been directed has served, before the hearing on the motion, a
proposed response to the requests for admission that is in substantial
compliance with Section 2033.220. It is mandatory that the court impose a
monetary sanction under Chapter 7…on the party or attorney, or both, whose
failure to serve a timely response to requests for admission necessitated this
motion.” (CCP § 2033.280.) “The court may impose a monetary sanction ordering
that one engaging in the misuse of the discovery process, or any attorney
advising that conduct, or both pay the reasonable expenses, including
attorney’s fees, incurred by anyone as a result of that conduct.” (CCP §
2023.030(a).) Misuse of the discovery process includes: “(d) failing to respond
or to submit to an authorized method of discovery.” (CCP § 2023.010(d).)
Reasonable expenses under CCP section 2023.030(a) include the time spent in
researching and preparing the motion, as well as court time and travel time
spent in connection with the motion. (Ghanooni
v. Super Shuttle (1993) 20
Cal.App.4th 256, 262.) III. ANALYSIS Plaintiff served Gustavo with Request for Admissions, Set
One, and Request for Special Interrogatories, Set One on December 17, 2024 by
electronic service to counsel of record. Responses were originally due January
21, 2025. Pursuant to a request from Gustavo’s counsel, he was granted an
extension to respond by February 4, 2025. However, no response to the discovery
was received. On February 6, 2025, Plaintiff’s counsel sent an email to defense
counsel in an effort to meet and confer as relating to the failure to respond,
but no responses were received as of the date of the filing of the motions. (Dicecca
Decls. ¶¶ 5-6.) Further, Plaintiff served Maria with Request for
Admissions, Set One, on January 3, 2025 by electronic service to Defendant’s
counsel of record. Responses were originally due February 5, 2025. However, no
response to the discovery was received. On February 6, 2025, Plaintiff’s
counsel sent an email to defense counsel in an effort to meet and confer as
relating to the failure to respond, but no responses were received. (Dicecca
Decls., ¶¶5-6.) No oppositions to the motions have been filed. As Plaintiff Wall properly served requests for discovery,
and Defendants failed to respond, the motions are granted. Sanctions Plaintiff
Wall requests $610 in sanctions for each motion. This request is supported by
the declaration of Plaintiff’s attorney, who declares that his hourly rate is $550
and he spent 1 hour to draft each motion, and paid a $60 filing fee for each
motion. (Dicecca Decls. ¶ 9.) The
Court finds the hourly rate and amount of time expended reasonable. Defendants
provide no justification for not responding, and there is nothing to otherwise
show that the imposition of sanctions is unjust. Accordingly,
the Court awards sanctions in the amount requested in each motion. IV. CONCLUSION
AND ORDER Plaintiff Wall’s
motions to deem requests for admission admitted as to both Defendants Maria and
Gustavo and motion to compel responses from Defendant Gusatvo to special
interrogatories, sets one, are granted. Defendant Gustavo is ordered to pay monetary sanctions of $1,220
to Plaintiff Wall for both motions against him within 30 days’ notice of this
order. Defendant Maria is ordered to pay monetary sanctions of $610
to Plaintiff Wall within 30 days’ notice of this order. Plaintiff to give notice. Dated: March 14, 2025 JARED D. MOSES
[1]
The Court refers to Defendants by their first name not out of disrespect but
for simplicity and efficiency, given that both Defendants have the same
surname. Case Number: 24NNCV00946 Hearing Date: March 14, 2025 Dept: P
[TENTATIVE]
ORDER ON DEFENDANT’S MOTION FOR TERMINATING SANCTIONS I.
INTRODUCTION Plaintiff Gulf Harbour
Investments Corporation filed this action against defendants Tom Larsen,
Allison Murao, and IndyMac Bank, F.S.B. on April 15, 2024, and filed its first
amended complaint (“FAC”) on October 1, 2024. Defendant Larsen
(“Defendant”) now moves for terminating sanctions against Plaintiff based on
Plaintiff’s alleged failure to comply with the Court’s January 8, 2025, order
compelling Plaintiff to further respond to certain discovery. II. LEGAL
STANDARD If
a party fails to obey an order compelling answers to interrogatories or
requests for production, the court may make orders that are just, including the
imposition of an issue, evidence, or terminating sanctions under Chapter 7 of
the Civil Discovery Act. (Code Civ. Proc., §§
2030.290, subd. (c) and 2031.300, subd. (c).) “Discovery sanctions are intended to
remedy discovery abuse, not to punish the offending party.Accordingly,
sanctions should be tailored to serve that remedial purpose, should not put the
moving party in a better position than he would otherwise have been had he
obtained the requested discovery, and should be proportionate to the offending
party's misconduct.[Citation.]”(Williams
v. Russ (2008) 167 Cal.App.4th 1215, 1223.) III.
DISCUSSION Defendant moves for
terminating sanctions based on Plaintiff’s alleged violation of a single
discovery order. He refers to prejudice only in passing as a conclusion in his
moving papers. (Mot., 5:3 [“irreparable prejudice” mentioned in section
heading], 5:8 [“prejudice to Defendants” mentioned without explanation].) Based
on the current record, Defendant prematurely seeks to punish Plaintiff for
failure to comply, not to correct any prejudice wrought by Plaintiff’s
noncompliance. (The Court notes there is no trial date in this case, nor any
motions pending on the Court’s calendar, which might be adversely affected by
Plaintiff’s delay.) Plaintiff also attests in
its opposition and accompanying declaration that it complied with the Court’s
order, albeit belatedly, around March 3, 2025. (Opp., 3:3-8, citing Serrao
Decl., ¶¶ 2-3.) Defendant argues the responses remain insufficient, but this
matter has only been addressed via opposition and reply. Without full briefing,
the Court cannot evaluate the propriety of sanctions. Either way, Plaintiff did
not demonstrate prejudice. Defendant also proposes
lesser sanctions in the body of his moving papers. (Mot., 5:20-26.) He did not
give notice of this request in his Notice of Motion. And because Defendant
demonstrated no prejudice that needs correcting, he also did not demonstrate
any need for lesser sanctions. Also, his proposed “lesser” sanctions –
prohibiting Plaintiff from producing any evidence or witnesses on a matter
dispositive to its case – are simply terminating sanctions under a different
name. (See Puritan Ins. Co. v. Superior
Court (1985) 171 Cal.App.3d 877, 885
[construing lesser sanctions as terminating where the effect is identical].) The Court declines to award monetary sanctions. Although
Plaintiff was delinquent in its obligations, Defendant made no persuasive
argument in his memorandum. Defendant did not prevail on this motion, and
Plaintiff is substantially justified in opposing his claim for punitive relief. IV.
CONCLUSION The motion is denied. The
Court declines to award sanctions.
Case Number: 24NNCV01390 Hearing Date: March 14, 2025 Dept: P
[TENTATIVE]
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT PURSUANT TO CCP 437C I. INTRODUCTION In this money lending case, Plaintiff BriteCap Financial,
LLC (“BriteCap”) alleges that there is a dispute regarding the failure of Defendants
Mountain Lion Retail Development, LLC, a California Limited Liability Company
dba Steve’s Pet Shop (“Steve’s Pet Shop”) and Navpreet Singh (“Singh”) to repay
$186,998.21 owed to Plaintiff under a loan agreement. The complaint contains five causes of action: (1) Open Book
Account; (2) Account Stated; (3) Money Lent; (4) Breach of Contract (Steve’s
Pet Shop); and (5) Breach of Contract (Navpreet Singh). Plaintiff BriteCap moved for summary judgment on December
11, 2024. The motion is unopposed. BriteCap
seeks summary judgment on the grounds that each element of each cause of action
contained in Plaintiff’s complaint has been met, that there is no triable issue
of material fact, and that judgment should be entered as a matter of law. The motion
for summary judgment is granted. The Court directs BriteCap to submit a
proposed judgment for the Court’s review and signature. II. SUMMARY
JUDGMENT A. Legal Standard The purpose
of a motion for summary judgment or summary adjudication “is to provide courts
with a mechanism to cut through the parties’ pleadings in order to determine
whether, despite their allegations, trial is in fact necessary to resolve their
dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843
(“Aguilar”).) “Code of Civil Procedure section 437c, subdivision (c), requires
the trial judge to grant summary judgment if all the evidence submitted, and
‘all inferences reasonably deducible from the evidence’ and uncontradicted by
other inferences or evidence, show that there is no triable issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119,
italics in original and quoting Code Civ. Proc., § 437c, subd. (c).) “The
function of the pleadings in a motion for summary judgment is to delimit the
scope of the issues; the function of the affidavits or declarations is to
disclose whether there is any triable issue of fact within the issues delimited
by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th
59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d
367, 381-382.) “On a motion for summary judgment,
the initial burden is always on the moving party to make a prima facie showing
that there are no triable issues of material fact.” (Scalf v. D.B. Log
Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A plaintiff moving for
summary judgment or summary adjudication “has met his or her burden of showing
that there is no defense to a cause of action if that party has proved each
element of the cause of action entitling the party to judgment on the cause of
action. Once the plaintiff ... has met that burden,
the burden shifts to the defendant ... to show that a triable issue of one or
more material facts exists as to the cause of action or a defense thereto. The
defendant … shall not rely upon the allegations or denials of its pleadings to
show that a triable issue of material fact exists but, instead, shall set forth
the specific facts showing that a triable issue of material fact exists as to the
cause of action or a defense thereto.” (Code Civ.
Proc., § 437c, subd. (p)(1).) “[A]
plaintiff bears the burden of persuasion that ‘each element of’ the ‘cause of
action’ in question has been ‘proved,’ and hence that ‘there is no defense’
thereto.” (Aguilar, supra, 25 Cal.4th at p. 850, citing Code Civ. Proc.,
§ 437c, subd. (o)(1).)” Courts
“liberally construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of that party.” (Dore
v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 (“Dore”).) B.
Discussion a. First Cause of Action – Open
Book Account “The term ‘book
account’ means a detailed statement which constitutes the principal record of
one or more transactions between a debtor and a creditor arising out of a
contract or some fiduciary relation, and shows the debits and credits in
connection therewith, and against whom and in favor of whom entries are made,
is entered in the regular course of business as conducted by such creditor or
fiduciary, and is kept in a reasonably permanent form and manner and is (1) in
a bound book, or (2) on a sheet or sheets fastened in a book or to backing but
detachable therefrom, or (3) on a card or cards of a permanent character, or is
kept in any other reasonably permanent form and manner. A ‘book account’ does not include consumer debt.” (Code Civ.
Proc., § 337a(a).) Plaintiff BriteCap contends it and Defendant Steve’s Shop
had an open book account arising out of a contract. (UMF 1.) BriteCap contends it
kept a detailed account of all the debits and credits in a permanent form. (UMF
2-3.) BriteCap contends the consideration between the parties was for a
principal sum of money with a repayment and fixed interest. (UMF 4.) BriteCap
contends Steve’s Pet Shop did not repay the agreed amount, and therefore owes
Plaintiff $186,998.21. (UMF 5.) The Court finds BriteCap has met its initial burden of
establishing the absence of a triable issue of material fact. BriteCap lent
money to Steve’s Pet Shop, which it promised to repay. (UMF 1-2.) BriteCap kept
a detailed record of the transactions between the parties in documentary form.
(UMF 3.) BriteCap sent this record to Steve’s Pet Shop, and Steve’s Pet Shop did
not object after having received it. (UMF 3-5; Coleman Decl., ¶¶ 13-15.)
Steve’s Pet Shop stopped making payments and owes BriteCap $186,998.21. (UMF
5.) The burden now shifts to Steve’s Pet Shop to establish the existence of a
triable issue of material fact. Steve’s Pet Shop did not oppose the motion and has
therefore failed to establish the existence of a triable issue of material fact
as to this cause of action. b. Second Cause of Action – Account Stated “The essential
elements of an account
stated are: (1) previous
transactions between the parties establishing
the relationship of debtor
and creditor; (2) an agreement between the parties, express
or implied, on the amount due from the debtor
to the creditor; (3) a promise
by the debtor, express
or implied, to pay the
amount due.” (Leighton v. Forster (2017) 8 Cal.App.5th 467, 491.) Plaintiff
BriteCap contends it and Defendant Steve’s Pet Shop had an account arising out
of a signed contract, in which there was an express promise to repay the amount
in the agreement and any balance recorded on the statement of account. (UMF 7.)
BriteCap contends it kept an account of the debits and credits involved in the
transactions and recorded them in permanent form. (UMF 8.) BriteCap contends a
debtor and creditor relationship was established by the contract and between
the parties. (UMF 8.) BriteCap contends Steve’s Pet Shop never objected to the
statement of account, and is therefore responsible to Plaintiff in the sum of $186,998.21.
(UMF 9.) The
Court finds BriteCap has met its initial burden. The evidence shows BriteCap
lent money to Steve’s Pet Shop, who promised to repay that money and later
failed to repay it. (UMF 6-9; Coleman Decl., ¶¶ 7-16, Ex. 1.) The evidence
shows that BriteCap provided Steve’s Pet Shop an “Account Statement,” which
listed the series of transactions between the parties. (Coleman Decl., ¶¶
13-15, Ex. 3.) The evidence shows Steve’s Pet Shop did not object to the
Account Statement after BriteCap sent it. (Coleman Decl., ¶ 15.) The burden now
shifts to Steve’s Pet Shop to establish the existence of a triable issue of
material fact. Steve’s Pet Shop did not oppose the motion and
has therefore failed to establish the existence of a triable issue of material
fact as to this cause of action. c. Third Cause of Action – Money Lent The law implies an obligation to repay money that was lent.
(See Pleasant v. Samuels (1896) 114 Cal. 34, 37-38.) BriteCap contends
that it had an open book account arising out of a signed contract, which
contained an express promise to repay
the amount specified in the agreement. (UMF 10-11.) BriteCap contends
Steve’s Pet Shop failed to repay, which caused BriteCap to suffer $186,998.21
in damages. (UMF 13.) BriteCap then contends the funds were lent per the loan
agreement and were not a gift. (UMF 14.) The Court finds
BriteCap has met its initial burden. The evidence shows that BriteCap lent
money Steve’s Pete Shop, who agreed to repay and for which Singh agreed to guaranty,
and that Defendants failed to repay. (UMF 10-19; Coleman Decl., Exs. 1-5.) The
burden now shifts to Defendants to establish the existence of a triable issue
of material fact. Defendants did not oppose the motion and have therefore
failed to establish the existence of a triable issue of material fact as to
this cause of action. d. Fourth Cause of Action – Breach of Contract (Steve’s
Pet Shop) “To prevail on a cause of action for breach of
contract, the plaintiff must prove (1) the contract, (2) the plaintiff's
performance of the contract or excuse for nonperformance, (3) the defendant's
breach, and (4) the resulting damage to the plaintiff. [Citation.]” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) BriteCap
contends the undisputed facts show that Steve’s Pet Shop executed a written
contract to borrow $187,500.00 from Plaintiff and repay Plaintiff $241,406.25
in weekly payments of $3,713.94. (UMF 21.) BriteCap contends it performed as
required by sending the funds, but that less than four months later on March
27, 2024, Steve’s Pet Shop failed to make any further payments. (UMF 22-23.) BriteCap
contends it notified Defendants of the breach on April 12, 2024. (UMF 25.) BriteCap
contends it has suffered damages in the amount of $186,998.21. (UMF 26.) The
Court finds BriteCap has met its initial burden. The undisputed evidence shows
BriteCap lent Steve’s Pet Shop $187,500.00 per a written loan agreement,
Steve’s Pet Shop stopped making payments, and BriteCap has suffered damages in
the amount of $186,998.21. (UMF 20-26.) The burden now shifts to Steve’s Pet
Shop to establish the existence of a triable issue of material fact. Steve’s Pet Shop did not oppose the motion and has
therefore failed to establish the existence of a triable issue of material fact
as to this cause of action. e. Fifth Cause of Action – Breach of Contract
(Navpreet Singh) BriteCap indicates that Singh executed a written personal
guaranty regarding the aforementioned loan to Steve’s Pet Shop, wherein Singh
would unconditionally guaranty the prompt payment of any money owed to
BriteCap. (UMF 27-28.) BriteCap indicates that in exchange for the personal
guaranty, it wired the loan funds to Singh’s corporate account. (UMF 29.)
BriteCap contends that four months after entering into the written loan
agreement, Steve’s Pet Shop failed to make any further payments. (UMF 30.)
BriteCap indicates that it emailed a notice of breach of the written loan
agreement to Defendants on April 12, 2024, but that no response or further
payments were received. (UMF 31.) BriteCap indicates it has suffered damages in
the amount of $186,998.21. (UMF 33.) The Court finds BriteCap has met its initial burden. The
undisputed evidence shows that Singh executed a personal guaranty for the money
Steve’s Pet Shop borrowed from BriteCap, that Singh failed to honor the
personal guaranty when Steve’s Pet Shop stopped making payments, and that
BriteCap has suffered damages in the amount of $186,998.21. (UMF 27-33.) The burden now shifts to Singh to
establish the existence of a triable issue of material fact. Singh did not oppose the motion and has therefore failed to
establish the existence of a triable issue of material fact as to this cause of
action. Based on the foregoing, the Court finds that Defendants
have no defenses to BriteCap’s claims, and that BriteCap is entitled to
judgment as a matter of law. The Court therefore grants BriteCap’s motion for
summary judgment. IV. CONCLUSION
AND ORDER Plaintiff
BriteCap Financial, LLC’s motion for summary judgment is granted. The Court
directs BriteCap to submit a proposed judgment for the Court’s review and
signature. Counsel for Plaintiff to give notice of this order.
Dated:
March 14, 2025
_______________________________ JARED D. MOSES
|
DEPARTMENT P LAW AND MOTION RULINGS
Case Number: 21GDCV00936 Hearing Date: March 13, 2025 Dept: P
[TENTATIVE]
ORDER DENYING PLAINTIFF’S MOTION FOR COURT TO ORDER DEFENDANTS TO PAY COSTS OF
DEPOSITIONS NOTICED BY PLAINTIFF I. INTRODUCTION Plaintiff
Haoxiao Liu (“Plaintiff”) filed the Complaint against Defendants Goldengate Bus
Inc. and Gang Guo (collectively, “Defendants”) on July 16, 2021. The Complaint
alleges two causes of action for breach of contract and intentional tort. However,
only the Breach of Contract cause of action remains as of June 17, 2022, when
the Court sustained a demurrer without leave to amend as to the intentional
tort action. According to the Complaint, on July 22, 2019, Plaintiff sustained
injuries while riding on a bus from Montebello to a casino in Indio.
(Complaint, III BC-4, IT-1.) The Complaint alleges that Plaintiff was exposed
to extreme cold temperature on the bus and became ill. (Complaint, ¶ IT-1.)
Despite his alleged requests to the bus driver to increase the temperature on
the bus or to stop the bus so he could buy clothes at Walmart, his requests were
ignored by the bus driver. (Id.) As a result, Plaintiff allegedly went
to the hospital overnight and went home by Uber. (Id.) Finally, Plaintiff
alleges that both he and Jason were employees of Goldengate and Mr. Guo at the
time of the alleged injury. (Complaint, ¶ IT-1.) On March 5,
20245, Defendants filed their opposition. On March 7,
2025, Plaintiff filed his reply titled as an opposition. II. LEGAL STANDARD As a
general rule, the party requesting a deposition is responsible for paying all
costs and fees related to the deposition, including the hiring a court
reporter, transcribing the reporter's stenography, paying witness fees and
travel expenses, etc. See, e.g., Code Civ. Proc., §2025.510(h)(1). Code of
Civil Procedure section 2025.450, section (g)(1) provides: “If a
motion under subdivision (a) is granted, the court shall impose a monetary
sanction under Chapter 7 (commencing with Section 2023.010) in favor of the
party who noticed the deposition and against the deponent or the party with
whom the deponent is affiliated, unless the court finds that the one subject to
the sanction acted with substantial justification or that other circumstances
make the imposition of the sanction unjust.” Code of
Civil Procedure section 2023.030, section (a) provides: “The court
may impose a monetary sanction ordering that one engaging in the misuse of the
discovery process, or any attorney advising that conduct, or both pay the
reasonable expenses, including attorney's fees, incurred by anyone as a result
of that conduct. The court may also impose this sanction on one unsuccessfully
asserting that another has engaged in the misuse of the discovery process, or
on any attorney who advised that assertion, or on both. If a monetary sanction
is authorized by any provision of this title, the court shall impose that
sanction unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the imposition of
the sanction unjust.” III. ANALYSIS Plaintiff
seeks a court order requiring Defendants to pay all costs of his noticed
depositions (e.g., court reporter, transcription, witness fees, etc.). In
support of his motion, Plaintiff argues that the principles of fairness,
equity, and legal precedent support his request. (Plaintiff’s Opp. at p.5.) In opposition, Defendants argue that there is no factual or
legal basis for the relief sought because Plaintiff relies on inapplicable law
and Plaintiff has not noticed any depositions. (Opp. at pp. 3-6.) The Court denies
Plaintiff’s request. The Court is unaware of any authority that would require
Defendants to pay for Plaintiff’s noticed depositions. Plaintiff’s reliance on case
law, Code of Civil Procedure §2023.030 and §2025.450 is misplaced as these are
inapplicable. First, Plaintiff has not noticed any deposition and therefore has
not established any misuse of discovery. Second, Greyhound Corp. v. Superior Court 56
Cal.2d 355 (1961) and Williams v. Superior Court 3 Cal. 5th
531 (2017) do not address whether Defendants are required to pay for
Plaintiff’s noticed depositions. Therefore, the Court denies Plaintiff’s
request. IV. CONCLUSION AND ORDER The Court
denies Plaintiff’s request. Defendants
to give notice. Dated: March 13, 2025 JARED
D. MOSES
Case Number: 22BBCV00516 Hearing Date: March 13, 2025 Dept: P
[TENTATIVE]
ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL FURTHER DEPOSITION TESTIMONY OF
DEFENDANT BRIAN HARTSTEIN AND GRANTING IN PART PLAINTIFF’S REQUEST FOR
SANCTIONS I. INTRODUCTION This is a breach of contract action
initiated on July 15, 2022, by Plaintiff HCMC Legal Inc. ("HCMC" or
“Plaintiff”) against Defendants Brian Hartstein (“Hartstein”) and, later, Epiq
Systems Inc., Epiq Systems Solutions Inc., and Epiq Systems Acquisition Inc.
(“Epiq”) (collectively, “Defendants”) HCMC alleges that Hartstein breached his
employment agreement and fiduciary duties by resigning without notice and
subsequently joining Epiq, a direct competitor. HCMC further contends that
Hartstein solicited HCMC’s clients and former employees, thereby causing
significant harm to its business operations. On January 27, 2023, HCMC filed a
separate action against Epiq Systems, Inc. (“HCMC EPIQ Action”). (Id. ¶
3.) On July 31, 2023, HCMC filed its amended complaint against Epiq alleging
claims for (1) aiding and abetting breach of fiduciary duty, (2) intentional
interference with contractual relations, (3) intentional interference with
prospective economic relations, (4) negligent interference with prospective
economic relations, (5) inducing breach of contract, and (6) unfair business
practices. (Wulffson Decl. ¶ 4, Ex. B.) On August 22, 2023, HCMC named Doe 1 as
Epiq eDiscovery Solutions, Inc. and Doe 2 as Epiq Systems Acquisition, Inc. (Id.
¶ 4.) From November 2023 to January 2024, Hartstein produced documents in
response to HCMC’s first set of written discovery, which contained numerous
improper redactions. (Id. ¶¶ 6- 7.) On March 12, 2024, HCMC produced
over 2000 documents in response to Defendants’ discovery requests and noticed
Hartstein’s continued deposition for April 10, 2024. (Id. ¶ 8.) On March
15, 2024, Epiq filed a motion to consolidate HCMC’s lawsuit against Hartstein
and its lawsuit against Epiq. (Id. ¶ 10.) On April 11, 2024, the Court
ordered the actions consolidated, at which time this Court stated “one would
expect Hartstein to testify at length in both matters[,]” brought by HCMC. (Id.
¶ 10, Ex. D.) On April 4, 2024, Hartstein served objections to HCMC’s notice of
deposition, which stated, in relevant part, that Hartstein’s deposition would
not go forward until after the hearing on the Motion to Consolidate, to avoid
the risk of duplicative depositions. (Id. ¶ 11.) On May 15,
2024, HCMC took Hartstein’s deposition for approximately five and half hours. (Id.
¶ 12.) On September 23, 2024, HCMC noticed
Hartstein’s continued deposition for October 8, 2023. (Id. ¶ 13.) On
September 27, 2024, HCMC received documents from Epiq in response to its
written discovery requests propounded on Epiq related to Hartstein. (Id.
¶ 14.) On October 3, 2024, more than two years after this case began, Hartstein
filed a motion for leave to file a Cross-Complaint against HCMC (“Motion for
Leave”) alleging claims for (1) unlawful non-compete agreement, (2)
failure to pay earned wages, (3) intentional interferences with contract, (4)
intentional or negligent interference with prospective advantage, and (5)
unfair business practices. (Id. ¶ 15.) On December 2, 2024, Hartstein filed
his Cross-Complaint against HCMC and HC2, Inc. dba Hire Counsel. (Id. ¶
23, Ex. H.) On February 14, 2025, Plaintiff
filed the instant motion. On February 28, 2025, Defendant
Brian Hartstein filed his opposition. On March 6, 2025, Plaintiff filed
its reply. II. LEGAL
STANDARD The Code of
Civil Procedure section 2017.010 states: A party may obtain discovery regarding
any matter, not privileged, that is relevant to the subject matter involved in
the pending action or to the determination of any motion made in that action,
if the matter either is itself admissible in evidence or appears reasonably
calculated to lead to the discovery of admissible evidence. Discovery may
relate to the claim or defense of the party seeking discovery or any other
party to the action. (Code Civ. Proc. § 2017.010; Perkins v. Sup. Ct.
118 Cal.App.3d 761, 765 (1981).) Code of Civil Procedure section
2025.290 states: “(a) Except as provided in subdivision (b), or by any court
order, including a case management order, a deposition examination of the
witness by all counsel, other than the witness' counsel of record, shall be
limited to seven hours of total testimony. The court shall allow additional
time, beyond any limits imposed by this section, if needed to fairly examine
the deponent or if the deponent, another person, or any other circumstance
impedes or delays the examination. (b) This section shall not apply under any
of the following circumstances: . . . (4) To any case brought by an
employee or applicant for employment against an employer for acts or omissions
arising out of or relating to the employment relationship . . .” (Code
Civ. Proc § 2025.290.)(emphasis added.) III. ANALYSIS Plaintiff HCMC LEGAL, INC. (“Plaintiff” or “HCMC”)
moves the Court for an order compelling Defendant Brian Hartstein (“Hartstein”)
to appear for his continued deposition pursuant to Code of Civil Procedure
section 2025.450 after Mr. Hartstein’s counsel unilaterally ended Mr. Hartstein’s
deposition on February 6, 2025, claiming the 7-hour rule applied under
2025.290. HCMC argues that it will be
prejudiced if Mr. Hartstein is not ordered to complete his deposition. HCMC
also requests that Mr. Hartstein and/or his attorney pay HCMC $20,750.00 in
sanctions. (Mot. at p. 2.) Plaintiff’s
position is that Mr. Hartstein’s cross-complaint renders this action an
employment case within the meaning of CCP 2025.290(b)(4). In opposition, Defendant argues that the
question of whether Plaintiff may depose Mr. Hartstein past the seven-hour mark
due to Mr. Hartstein’s cross-complaint is a question of first impression since Defendant
did not initially bring the case. (Opp. at p. 3.) Defendant argues that the Plaintiff has failed
to cite any legal authority supporting its position. (Id.) Defendant
also argues that Mr. Hartstein’s Cross-Complaint has little to do with his
employment relationship with Plaintiff and to the extent it does, Plaintiff has
already conducted discovery of it. (Id. at pp.5-6.) In reply, Plaintiff
argues that the exception in subsection (b)(4) applies to employment cases,
such as this action, not to specific claims. (Reply at p.3.) Specifically,
Defendant Hartstein chose to file a Cross-Complaint which alleges claims
“against an employer for acts or omissions arising out of or relating to the
employment relationship[,]” deeming this matter an employment case. (See CCP
2025.290(b)(4).) (Id. at p.4.) The Court
agrees with Plaintiff. This case has
always been about the employment relationship between Mr. Hartstein and HCMC
and the circumstances surrounding his departure and subsequent employment with
Epiq. It is this Court’s view that the
causes of action alleged by Plaintiff do not fall within the carve out
contained in section 2025.290(b)(4). However,
that changed once Mr. Hartstein filed his cross-complaint. The second cause of action is a claim for
unpaid wages by Mr. Hartstein against his former employer, HCMC. This is a claim brought by an employee, (albeit
a former one) alleging a willful failure by HCMC, his former employer, to pay wages
due to Mr. Hartstein, which could be either an act (i.e. willful nonpayment) or
an omission (i.e. failure to pay) by HCMC.
Therefore, this case falls under section 2025.290(b)(4) and the seven-hour
deposition limit does not apply. Mr.
Hartstein advances a well-reasoned argument about the proper interpretation of
subsection (b)(4), i.e. that it “is obviously intended to allow for thorough
examination of the employment relationship and relevant details related to
alleged wrongful acts by the employer. In other words, it must be intended to
allow an employer to defend itself. It could not have been intended to allow
limitless examination of an employee concerning matters not arising out of the
employment relationship or relating to other parties.” The Court
agrees that there is no authority or legislative history addressing this precise
issue. Addressing Mr. Hartstein’s
arguments, no party has suggested that Mr. Hartstein’s deposition should be
limitless. All counsel likely have other
matters to attend to and a limitless deposition may present some logistical
concerns. Plaintiff’s motion
persuasively suggests that the parties covered insufficient substantive ground
during the deposition. The Court
takes a broader view of 2025.290(b)(4) than Mr. Hartstein. The essence of Mr.
Hartstein’s argument, in this Court’s view, is that 2025.290(b)(4) should not
apply because (1) Mr. Hartstein’s employment claims are contained in a
cross-complaint; and (2) this is not exclusively a case about Mr. Hartstein’s allegations
of wrongful acts by his former employer related to the employment relationship,
but a more complex matter involving multiple parties and multiple claims that
are not, strictly speaking, employment related claims. While this is true, the additional claims and
parties, and the fact that the employment claims are contained in a cross-complaint,
are not disqualifying facts. It is
unquestionable that one aspect of this case is an action “against an employer
for acts or omissions arising out of or relating to the employment relationship.” Therefore, the 2025.290(b)(4) carve out applies and Mr. Hartstein’s continued deposition must forge ahead.[1] Sanctions Plaintiff
seeks sanctions in the amount of $ 20,750.00 to be paid by Hartstein and/or
Hartstein’s counsel. (Mot. at p. 22.) Defendant argues that Plaintiff’s request
for sanctions is based on grievances that go back several years and that are
unrelated to anything that occurred during the second session of Mr.
Hartstein’s deposition. (Opp. at p.8.) In reply, Plaintiff argues that
Hartstein’s arguments against sanctions are unavailing and provide no
justification for Hartstein’s obstructionist actions. (Reply at p. 10.) Civil
Procedure Code section 2025.480 subsection (j) states, “The Court shall impose
a monetary sanction … against any party, person, or attorney who unsuccessfully
makes or opposes a motion to compel an answer or production, unless it finds
that the one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust. (Code Civ.
Proc § 2025.480(j).) Although
sanctions are warranted, the amount sought is excessive because the motion is
simple. Counsel requests $20,750.00 for an associate’s 30 hours researching, 15
hours reviewing the opposition and drafting the reply at a rate of $400.00, and
a partner’s total time reviewing and preparing the motion of 5 hours at a rate
of $550.00. Therefore, the Court reduces the amount to $1,600.00 (2.5 hours
drafting and preparing the motion at a rate of $400 and 1.5 hours revising and
drafting the reply at a rate of $550). IV. CONCLUSION
AND ORDER The Court
GRANTS the Motion to Compel Further Defendant’s Deposition. The Court GRANTS IN
PART sanctions in the amount of $1,600.00.
Defendant Hartstein
and his counsel are jointly or severally ordered to pay $1,600.00 in sanctions
to Plaintiff within 30 days of this order.
Counsel are ordered to meet and confer to select a date for the
continued deposition, which must occur within 45 days of this order. Plaintiff
is to give notice. Dated: March 13, 2025 JARED
D. MOSES
[1]
Had this Court determined that section 2025.290(b)(4) did not apply, the Court
would still have ordered the continued deposition to go forward under
subsection (a): “The court shall allow additional time, beyond any limits
imposed by this section, if needed to fairly examine the deponent or if the
deponent, another person, or any other circumstance impedes or delays the
examination.” Given the complexity of
this case, the range of disputes, and way Mr. Hartstein's deposition unfolded, the Court finds that seven hours is
insufficient to complete Mr. Hartstein’s deposition. Case Number: 24AHCV00027 Hearing Date: March 13, 2025 Dept: P
[TENTATIVE]
ORDER GRANTING IN PART PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO FORM
INTERROGATORIES FROM SALVADOR HUIZAR & REQUEST FOR SANCTIONS I. INTRODUCTION This is an action arising from an alleged slip and fall
which occurred on February 20, 2022, at 157 North Allen, Pasadena, CA 91106
(“Subject Property”). (Compl., ¶¶ 2, 13.) Plaintiff Vardine Adamyan
(“Plaintiff”) alleges that she sustained severe injuries, including
extra-articular fractures in the distal shafts of the left tibia and fibula, as
she was utilizing the staircase located at the exterior of the Subject
Property. (Compl., ¶ 13.) On January
5, 2024, Plaintiff filed a complaint against Defendants Salvador Huizar as
Trustee of Huizar Family Trust, Bertha Huizar as Trustee of the Huizar Family
Trust (collectively, “Defendants”), and Does 1 through 50, inclusive alleging
causes of action for: (1) Premises Liability; and (2) Negligence. On March 7, 2024, Defendants filed a joint answer to the
complaint. On March 26, 2024, this action was reassigned from the
Honorable Margaret L. Oldendorf to the Honorable Jared D. Moses sitting in
Department P at Pasadena Courthouse effective April 2, 2024. On December 5, 2024, Plaintiff filed and served the instant
motion to compel Defendant Salvador Huizar’s further responses to set one of
Plaintiff’s form interrogatories, no. 17.1, and monetary sanctions in the sum
of $3,150.00 against Defendant Salvador Huizar and his counsel of record (the
“Motion”). On February 13, 2025, Plaintiff filed the operative First
Amended Complaint (“FAC”) alleging causes of action for: (1) Premises
Liability; and (2) Negligence. As of March 10, 2025, the Motion is unopposed. Any
opposition to the Motion was required to have been filed and served at least
nine court days before the hearing. (Code Civ. Proc., § 1005, subd. (b).) II. LEGAL
STANDARD Code Civ. Proc. §2030.300
governs motions to compel further responses to interrogatories. It provides as
follows: “(a) On receipt of a
response to interrogatories, the propounding party may move for an order
compelling a further response if the propounding party deems that any of the
following apply: (1) An answer to a
particular interrogatory is evasive or incomplete. (2) An exercise of the
option to produce documents under Section 2030.230 is unwarranted or the
required specification of those documents is inadequate. (3) An objection to an
interrogatory is without merit or too general.” Motions must be made
within 45 days of any response or supplemental response (Subdivision (c)) and
must be accompanied by a declaration demonstrating the parties met and
conferred to attempt informal resolution; they must also be accompanied by a
separate statement or concise outline. (Subdivision (b).) Subdivision (d) provides
for the issuance of monetary sanctions against any party, person, or attorney
who unsuccessfully makes or opposes a motion to compel further responses,
unless the court finds the party who would be subject to sanctions acted with
substantial justification or that other circumstances make sanctions
unjust. A court has discretion to fix the amount of reasonable monetary
sanctions. (Cornerstone Realty Advisors, LLC v. Summit Healthcare
Reit, Inc. (2020) 56 Cal.App.5th 771, 791.) III. ANALYSIS A.
Evidence
in Support of the Motion Counsel for Plaintiff, Ilia Borisov (“Borisov”),
declares that, on June 24, 2024, Plaintiff propounded set one of Plaintiff’s
form interrogatories on Defendant Salvador Huizar (“Defendant”). (Borisov
Decl., ¶ 4; Exh. A.) On August 13, 2024, Defendant served responses to set one
of Plaintiff’s form interrogatories. (Borisov Decl., Exh. B.) On August 19,
2024, Plaintiff’s counsel sent a meet and confer letter to defense counsel as
to the purported deficient responses and sent a follow up on August 29, 2024 regarding
Defendant’s further discovery responses. (Borisov Decl., ¶¶ 5-6; Exh. C.)
Plaintiff granted numerous extensions to Defendant to provide a further
response to Form Interrogatory No. 17.1, the last of which was October 11,
2024. (Borisov Decl., ¶¶ 7-9.) To date, Plaintiff has not received the further
discovery responses from Defendant. Plaintiff’s counsel indicates that Defendant’s
responses to Form Interrogatory No. 17.1 are insufficient and fail to comply
with the requirements of the Code of Civil Procedure. (Borisov Decl., ¶ 11.)
While Defendant claims to have made a reasonable inquiry, Plaintiff’s counsel
states that Defendant’s responses do not describe the efforts made to obtain
the requested information, nor do they adequately state why certain information
is unavailable. (Borisov Decl., ¶ 11.) Counsel has an hourly rate of $350.00 per hour. (Borisov
Decl., ¶ 13.) Two (2) hours were spent on meet and confer efforts and two (2)
hours were spent preparing the instant motion. (Borisov Decl., ¶ 14.) Two (2)
hours were spent preparing the separate statement in support of the motion.
(Borisov Decl., ¶ 14.) Counsel anticipates spending at least one (1) additional
hour reviewing any oppositions and preparing a reply. (Borisov Decl., ¶ 14.) An
additional one (1) hour is anticipated attending and preparing statements for
the IDCs. (Borisov Decl., ¶ 14.) An additional one (1) hour is anticipated
preparing a reply, preparing for the hearing, and participating in the hearing
of the instant motion. (Borisov Decl., ¶ 14.) Thus, Plaintiff requests monetary
sanctions in the sum of $3,150.00 for the instant motion. (Borisov Decl., ¶
14.) Initially, the Court notes that the
parties agreed to a mutual extension of November 11, 2024, for Defendant to
provide further responses to the subject interrogatory at issue, with a
corresponding extension of the deadline for Plaintiff to file a motion to
compel further response. (Borisov Decl., Exh. C.) Thus, the motion is timely
pursuant to CCP § 2030.300(c). FROG No. 17.1 states the following: “Is your response to each request for admission
served with these interrogatories an unqualified admission? If not, for each
response that is not an unqualified admission: (a) state the number of the request; (b) state all facts upon which you base your
response; (c) state the names, addresses, and telephone
numbers of all persons who have knowledge of the facts; and (d) identify all documents and other tangible things
that support your response and state the name, address, and telephone number o
the person, who has each document or thing.” (Separate Statement at p. 2:8-17.) In addition to interposing objections, Defendant
identified RFA Nos. 1, 2, 4, 5, 6, 7,
8, 9, 10, 11, 12, 13, 14, 17, 18, 23, 24, and 34 in his response to FROG No. 17
as indicative of such responses not being unqualified admissions. (Separate
Statement at pp. 2-5.) The Court has reviewed Defendant’s
responses and finds that except for his response concerning RFA No. 14,
Defendant has not stated that he made a “reasonable and good faith effort to
obtain the information by inquiry to other natural persons or organizations . .
. .” (Code Civ. Proc., § 2030.220, subd. (c).) As to his response stating that RFA
No. 14 was not an unqualified admission, Defendant did not fully answer the
interrogatory as no address or telephone number was provided for Salvador
Huizar. (Separate Statement at p. 5:3.) Such response does not comply with CCP
§ 2023.220(a) which requires that “[e]ach answer in a response to interrogatories
shall be as complete and straightforward as possible as the information
reasonably available to the responding party permits.” (Code Civ. Proc., §
2030.220, subd. (a).) Moreover, given that the Motion is
unopposed, Defendant has failed to justify any of his objections on the grounds
of vagueness, speculation, the interrogatory being overbroad, or ambiguity.
Defendant has the burden of justifying any objections to discovery. (Fairmont
Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) Due to the lack of opposition, Defendant has
conceded to the arguments raised therein as “[c]ontentions are waived when a
party fails to support them with reasoned argument and citations to authority.”
(Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210,
1215.) Defendant is informed that “[a] failure to oppose a motion may be deemed
a consent to the granting of the motion.” (Cal. Rules of Court, Rule 8.54(c).) The Court therefore GRANTS Plaintiff’s
request to compel Defendant Salvador Huizar’s further responses to Plaintiff’s
form interrogatories, set one, no. 17.1. Defendant Salvador Huizar is ORDERED
to provide further verified, complete, and code-compliant responses, without
objections, to form interrogatory no. 17.1 within 30 days of the date of notice
of this order. D.
Monetary
Sanctions The Court references its recitation of the
declaration of Plaintiff’s counsel from above
and incorporates it herein. Given that the motion is unopposed and
is relatively straightforward, the Court exercises its discretion and GRANTS IN
PART Plaintiff request for monetary sanctions. The Court AWARDS Plaintiff
reasonable monetary sanctions in the sum of $760.00 (representing two (2) hours
of work on the motion at the rate of $350 per hour plus the $60 filing fee).
The Court reduces the hours given the non-complexity of the Motion and the lack
of any opposition. Defendant Salvador Huizar and his
counsel of record, James J. Braze of Law Offices of Scott C. Stratman, are ORDERED
to pay monetary sanctions of $760.00 to Plaintiff, jointly and severally,
within 30 days of the date of notice of this order. IV.
CONCLUSION AND ORDER Based on the foregoing, Plaintiff Vardine
Adamyan’s Motion to Compel Further Responses to Form Interrogatories from
Salvador Huizar and Request for Monetary Sanctions in the Amount of $3,150.00
is GRANTED IN PART. Defendant Salvador Huizar is ORDERED to provide
further verified, complete, and code-compliant responses, without objections,
to form interrogatory no. 17.1 within 30 days of the date of notice of this
order. The request for monetary sanctions is GRANTED IN
PART. Defendant Salvador Huizar and his counsel of record, James J. Braze of
Law Offices of Scott C. Stratman, are ORDERED to pay monetary sanctions of
$760.00 to Plaintiff, jointly and severally, within 30 days of the date of
notice of this order. Plaintiff to give notice of this order. Dated: March 13, 2025 JARED D. MOSES Case Number: 24NNCV02608 Hearing Date: March 13, 2025 Dept: P
[TENTATIVE]
ORDER SUSTAINING THE DEMURRER OF CROSS-DEFENDANT DIANA CHEN TO THE CROSS-COMPLAINT
WITH LEAVE TO AMEND AS TO THE SECOND, THIRD, AND FOURTH CAUSES OF ACTION I. INTRODUCTION This action arises from alleged wrongful actions concerning
a partnership agreement as to a business named VIP Massage and Skin Care, which
is located at 905 E. Valley Blvd., San Gabriel, CA 91776. (Compl., ¶ 3.) On July 1, 2024, Plaintiff Hong Du (“Plaintiff” or “Du”)
filed a complaint against Defendants Ali Hasana Nasab and Does 1-20, inclusive,
alleging causes of action for temporary restraining order, preliminary and
permanent injunction, and damages. On August 21, 2024, Defendant and Cross-Complainant Ali
Hasani Nasab (“Cross-Complainant” or “Nasab”) filed a cross-complaint against
Plaintiff and Diana Chen (“Chen”) alleging causes of action for: (1) breach of
fiduciary duties (against Du only); (2) intentional interference with
prospective economic advantage; (3) declaratory relief; and (4) injunctive
relief. On January 3, 2025, Cross-Defendant Chen filed and served
the instant demurrer to the second, third, and fourth causes of action in the
cross-complaint, which is made on the grounds that the cross-complaint fails to
state facts sufficient to constitute a cause of action against Cross-Defendant
Chen and that the cross-complaint is uncertain.
On January 13, 2025, Du filed a notice of stay of
proceedings, which indicates that Du filed for Chapter 7 Bankruptcy and, as
such, an automatic stay of this action is in place as to Du. On January 17, 2025, the Court entered an order staying
this action as to Plaintiff only. (01/17/25 Minute Order at p. 1.) The Court
advanced the hearing on Chen’s demurrer from May 9, 2025, to March 13, 2025.
(01/17/25 Minute Order at p. 1.) The Court also set a non-appearance case
review for status of bankruptcy for July 14, 2025. (01/17/25 Minute Order at p.
1.) On February 27, 2025, Cross-Complainant filed an opposition
to the demurrer, to which Chen replied on March 6, 2025. A. Legal Standard Code
Civ. Proc. Section 430.10(e) provides for a demurrer on the basis that a cross-complaint
fails to state a cause of action. (CCP § 430.10(e).) A demurrer tests the legal
sufficiency of a cross-complaint. (Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer is treated as “admitting all
material facts properly pleaded,” but not the truth of “contentions, deductions
or conclusions of law.” (Aubry v. Tri-Defendants Hospital Dist. (1992) 2
Cal.4th 962, 966-967.) The general rule on demurrer is that the pleadings are
“deemed to be true, however improbable they may be.” (Del E. Webb Corp. v.
Structural Materials Co. (1981) 123 Cal.App.4th 593, 604.) A demurrer
may also be brought on the grounds that “[t]here is a defect or misjoinder of
parties.” (CCP § 430.10 (d).) A court may draw inferences in assessing a
demurrer. (Robertson v. Saadat (2020) 48 Cal.App.5th 630, 639.) Questions
of cross-complainant’s ability to prove unlikely allegations are of no concern.
(Committee on Children’s Television, Inc. v. General Foods Corp. (1983)
35 Cal.3d 197, 213-214.) Allegations
need not be accepted as true if they are contradicted by judicially noticeable
facts. (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462,
1474.) Where a demurrer is sustained, leave to amend must be allowed where
there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
The burden is on the cross-complainant to show the court that a pleading can be
amended successfully. (Ibid.) “If there is any reasonable possibility
that the [cross-complainant] can state a good cause of action, it is error to
sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation
Dist. (1969) 70 Cal.2d 240, 245.) B. Meet and Confer Requirement
Not Satisfied Before filing a demurrer, the moving party must meet and confer
in person, by telephone, or by video conference with the party who filed the
pleading to attempt to reach an agreement that would resolve the objections to
the pleading. (Code Civ. Proc., § 430.41.) “Any determination by the court that
the meet and confer process was insufficient shall not be grounds to overrule
or sustain a demurrer.”. (Code Civ. Proc., § 430.41, subd. (a)(4).) The Court
finds that the meet and confer requirement has not been met. Counsel for Cross-Defendant
Chen, Jonathan F. Golding (“Golding”), only attests to engaging in e-mail meet
and confer correspondence with counsel for Cross-Complainant. (Golding Decl.,
¶¶ 3-5.) The
Court will still consider the demurrer on the merits. However, the parties are
reminded to comply with the meet and confer requirements of the Code of Civil
Procedure. C.
The Demurrer is Procedurally Proper In
opposition to the demurrer, Cross-Complainant argues that the demurrer violates
Cal. Rules of Court, Rule 3.1320(a) because Cross-Defendant Chen set forth the
grounds for the demurrer to the third and fourth causes of action to the
cross-complaint in a single paragraph. (Opp’n at p. 3:16-21.) “Each
ground of demurrer must be in a separate paragraph and must state whether it
applies to the entire complaint, cross-complaint, or answer, or to specified
causes of action or defenses.” (Cal. Rules of Court, Rule 3.1320(a).) The
Court rejects the argument that the demurrer of Cross-Defendant Chen is
procedurally improper. The Court has reviewed the notice of motion and
Cross-Defendant Chen sets forth each ground of the demurrer and indicates to
which causes of action the demurrer applies. (Not. of Mot. at p. 3.) Here,
Cross-Defendant Chen separately demurs to the second, third, and fourth causes
of action in the cross-complaint on the grounds that such causes of action are
uncertain and fail to state facts sufficient to constitute causes of action
against Cross-Defendant Chen. (Not. of Mot. at p. 3:4-16.) The
Court therefore finds that the demurrer complies with California Rules of
Court, Rule 3.1320(a). D. Pertinent
Allegations of the Cross-Complaint The Court finds it necessary to set forth the pertinent
allegations of the cross-complaint. The cross-complaint alleges the following: in
2022, Cross-Complainant purchased the VIP Massage and Skin Care business
(“VIP”) located at 905 East Valley Boulevard, San Gabriel, California for
$120,000.00. (Cross-Compl., ¶ 10.) Du obtained her esthetician license from the
State of California in or about September or October 2023. (Cross-Compl., ¶ 3.)
Between October 2022 and October 2023, there were two employees of VIP, Yan
Lui, who had a massage therapy license, and Jingli Xu, who had an esthetician
license, which licenses were used to operate VIP. (Cross-Compl., ¶ 4.) Chen
worked as the leasing agent for the business premises located at 905 East
Valley Boulevard, San Gabriel, California. (Cross-Compl., ¶ 6.) Cross-Complainant entered into a new lease for the business
premises. (Cross-Compl., ¶ 11.) Cross-Complainant obtained the business license
from the City of San Gabriel for VIP. (Cross-Compl., ¶ 12.) In or about October
2022, Cross-Complainant also obtained an Establishment License for VIP from the
California Board of Barbering and Cosmetology. (Cross-Compl., ¶ 13.) In or about October 2022, Cross-Complainant offered to make
Du an equal partner or joint venturer for VIP, using the business license
Cross-Complainant had already obtained for VIP, and using the licenses of the
two employees, to conduct the business of VIP, with Du to pay $60,000.00 to
Cross-Complainant to repay half of the $120,000.00 Cross-Complainant had
already paid to purchase VIP. (Cross-Compl., ¶ 16.) Du accepted the offer and,
over the period of one year, Du paid the $60,000.00 with payments complete in
or about the end of October 2023, about the same time Du obtained her own
esthetician license. (Cross-Compl., ¶ 17.) Du and Cross-Complainant agreed they
would share equally the expenses of operating VIP as well as the sharing of the
profits. (Cross-Compl., ¶ 18.) The offer and acceptance were made verbally and
there was no written agreement. (Cross-Compl., ¶ 19.) In early 2024, a dispute arose between Du and
Cross-Complainant over expenses related to the operations of VIP.
(Cross-Compl., ¶ 26.) During spring of 2024 and after Du closed the business,
Cross-Complainant informed Du that she owed $15,450.00 as her share of expenses
of VIP. (Cross-Compl., ¶ 27.) At the end of March 2024, without the consent of
Cross-Complainant, Du closed the business without giving Cross-Complainant
either the keys or the cellphone. (Cross-Compl., ¶ 36.) Cross-Complainant found
another individual, Jing Bian (“Bian”), who was willing to take over and resume
the conduct of VIP even though Du had closed VIP. (Cross-Compl., ¶ 29.) Cross-Complainant informed Du that he found someone, Bian,
to take over and purchase the VIP business, a Du had suggested. (Cross-Compl.,
¶ 41.) Cross-Complainant contacted Chen about transferring the lease for the
VIP business premises to Bian. (Cross-Compl., ¶ 42.) Bian also contacted Chen
about transferring the lease for the VIP business premises from
Cross-Complainant’s name. (Cross-Compl., ¶ 43.) Du conspired with Chen to
refuse to allow the transfer of the lease from Cross-Complainant’s name. (Cross-Compl.,
¶ 44.) Cross-Complainant alleges that Chen has continued to disparage the
business of VIP with information she knows or should know is false.
(Cross-Compl., ¶ 50.) Cross-Complainant alleges that he contacted Chen about the
lease for the business premises and was informed that the lease did not end
until December 31, 2024, and that Chen would not agree for it to be terminated
earlier or transferred to anyone else. (Cross-Compl., ¶ 52.) Cross-Complainant
alleges that the refusal of Chen to allow changes to the lease was made, at
least in part, pursuant to the conspiracy with Du to deprive Cross-Complainant
of the benefits of the operations of VIP or to sell the business.
(Cross-Compl., ¶ 53.) E. Uncertainty Cross-Defendant Chen contends that the cross-complaint is
uncertain as to the second, third, and fourth causes of action. The Court does not find that the cross-complaint
is uncertain because it is not so unclear where Cross-Defendant Chen is not
apprised of the issues that must be met. (Bacon v. Wahrhaftig (1950) 97
Cal.App.2d 599, 605 [“[a] special demurrer should not be sustained when . . .
[the cross-complaint is] sufficiently clear to apprise the [cross-defendant] of
the issues which he is to meet”].) Thus,
the Court OVERRULES the demurrer to the cross-complaint on the grounds of
uncertainty. F.
Sufficiency of the Second Cause of Action Cross-Defendant
Chen argues that the cross-complaint fails to state a cause of action for
intentional interference with prospective economic advantage. Cross-Complainant
contends that such cause of action is sufficiently alleged because a conspiracy
is alleged between Cross-Defendants. (Opp’n at p. 2:9-24.) The
elements of a claim for intentional interference with prospective economic
advantage include “(1) an economic relationship between the plaintiff and some
third party, with the probability of future economic benefit to the plaintiff;
(2) the defendant’s knowledge of the relationship; (3) intentional or negligent
acts on the part of the defendant designed to disrupt the relationship; (4)
actual disruption of the relationship; and (5) economic harm to the plaintiff
proximately caused by the acts of the defendant.” (Crown Imports, LLC v. Superior Court (2014) 223 Cal.App.4th 1395,
1404, citations, brackets, and quotation marks omitted.) Further, “the alleged
interference must have been wrongful by some measure beyond the fact of the
interference itself. For an act to be sufficiently independently wrongful, it
must be unlawful, that is, it is proscribed by some constitutional, statutory,
regulatory, common law, or other determinable legal standard.” (Ibid.,
citation, ellipsis, and quotation marks omitted.) Allegations
of the Second Cause of Action Pursuant
to the second cause of action, Cross-Complainant alleges the following:
Cross-Complainant and Bian were in an economic relationship that would probably
have resulted in an economic benefit to Cross-Complainant. (Cross-Compl., ¶
63.) Cross-Defendants knew of the relationship between Cross-Complainant and
Bian. (Cross-Compl., ¶ 64.) Cross-Defendants engaged in acts “including but not
limited to closing VIP, refusing the (sic) provide [Cross-Defendant] keys or
the phone for VIP, refusing the (sic) change the lease for the business
premises of VIP, threatening the personnel present at VIP, leaving fliers or
leaflets in the parking lot of VIP, and spreading false defamatory information
about the business of VIP.” (Cross-Compl., ¶ 65.) Cross-Defendants
are alleged to have intended to disrupt the relationship between
Cross-Complainant and Bian. (Cross-Compl., ¶ 66.) Cross-Defendants knew that,
by engaging in the alleged conduct, disruption of the relationship between
Cross-Complainant and Bian was certain or substantially certain to occur. (Cross-Compl.,
¶ 67.) The relationship between Cross-Complainant and Bian was disrupted.
(Cross-Compl., ¶ 68.) Cross-Complaint was harmed and damaged in excess of
$60,000.00. (Cross-Compl., ¶ 69.) Cross-Complainant alleges that the conduct of
Cross-Defendants was a substantial factor in causing the harm and damage to
Cross-Complainant. (Cross-Compl., ¶ 70.) The
Second Cause of Action is Insufficiently Alleged The Court finds that the second cause of action for
intentional interference with prospective economic advantage is insufficiently
alleged. Cross-Defendant has failed to allege the element of proximate cause. Additionally, the basis for the causes of action asserted
against Cross-Defendant Chen is the existence of an alleged conspiracy between
Cross-Defendant Chen and Cross-Defendant Du. (Cross-Compl., ¶ 53.) The Court references its recitation of the
allegations above and incorporates them herein. The Court finds that
Cross-Complainant has not pleaded sufficient facts to impose liability onto
Cross-Defendant Chen based on the purported conspiracy between
Cross-Defendants. “A party seeking to establish a civil conspiracy must show
that each member of the conspiracy acted in concert and came to a mutual
understanding to accomplish a common and unlawful plan, and that one or more of
them committed an overt act to further it. [Citation].” (AREI II Cases (2013)
216 Cal.App.4th 1004, 1022.) Cross-Complaint has only presented insufficient
“[b]are allegations” to support the existence of an alleged conspiracy. (Ibid.,
internal quotations omitted.) As such, the Court SUSTAINS the demurrer of Cross-Defendant
Chen to the second cause of action with leave to amend. Cross-Complainant may
allege facts which, if proven true, state a cause of action for intentional
interference with prospective economic advantage. G.
Sufficiency of the Third and Fourth Causes of Action Cross-Defendant
Chen asserts that declaratory relief and injunctive relief are not independent
causes of action and therefore cannot survive dismissal of the second cause of
action. In the opposition, Cross-Complainant makes no argument as to the
sufficiency of the third and fourth causes of action in the cross-complaint. Initially,
the Court notes that Cross-Defendant Chen has presented no legal authority in
support of the argument that declaratory relief and injunctive relief are not
independent causes of action. “[I]njunctive
and declaratory relief are equitable remedies, not causes of action.” (Faunce
v. Cate (2013) 222 Cal.App.4th 166, 173.) A demurrer to causes of action
for injunctive and declaratory relief will be sustained where such causes of
action are “wholly derivative of other nonviable causes of action.” (Ibid.)
Here,
the third and fourth causes of action against Cross-Defendant Chen are tethered
to the second cause of action, which fails to state facts sufficient to
constitute a cause of action against Cross-Defendant Chen. Under Faunce v.
Cate, supra, 222 Cal.App.4th 166, 173, neither declaratory relief
nor injunctive relief are causes of action. However, Faunce v. Cate, supra,
222 Cal.App.4th 166, 173 also stands for the proposition that such claims may
exist where substantive claims are asserted in relation to such causes of
action. The
demurrer to the third cause of action for declaratory relief and fourth cause
of action for injunctive relief is SUSTAINED with leave to amend. III. CONCLUSION
AND ORDER The demurrer of Cross-Defendant Diana Chen to
the second, third, and fourth causes of action in the Cross-Complaint is
SUSTAINED with leave to amend. Cross-Complainant
Ali Hasani Nasab is given 30 days to file a First Amended Cross-Complaint. Cross-Defendant Diana Chen to give notice. Dated: March 13, 2025 JARED D. MOSES
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DEPARTMENT P LAW AND MOTION RULINGS
Case Number: 24NNCV00326 Hearing Date: March 12, 2025 Dept: P
[Tentative] Order DENYING Benjamin R. Rosichan’s Application
for Pro Hac Vice Admission I.
Background This is a wrongful death
action arising from the fatal shooting of Eric Lynn Thomas III at an apartment
complex in Pasadena, California, on May 2, 2022. Plaintiffs Camea Gholar and
Eric Lynn Thomas Jr. (“Plaintiffs”), the decedent’s parents, bring this action
against Defendants DIBA Management, Inc. and VIP Global Investments, Inc.
(“Defendants”), alleging that Defendants negligently failed to provide adequate
security measures despite knowledge of prior criminal activity in and around
the premises. Plaintiffs assert claims for wrongful death, seeking damages for
loss of companionship, emotional distress, and funeral expenses. On June 20, 2024,
Benjamin R. Rosichan filed an application for admission pro hac vice in this
matter. On February 10, 2025, Mr. Rosichan filed a renewed application, seeking
the Court’s permission to appear pro hac vice pursuant to California Rules of
Court, Rule 9.40. This application is unopposed. II.
Legal
Standard California Rules of Court, Rule 9.40 contains the
requirements for a pro hac vice application. Subdivision (a) mandates that to be eligible for pro
hac vice admission, the applicant must be an attorney of good standing and
eligible to practice in any bar of the United States court or the highest court
of any state, who has been retained to appear in a particular cause pending in
a court of this state. Such person may in the court’s discretion be permitted
to appear pro hac vice upon written application. The applicant must not
be a resident of California, regularly employed in California, or regularly
engaged in substantial business in California. Pursuant to subdivision (c), the applicant must submit
a verified application for pro hac vice admission with notice of hearing
provided to all parties. Pursuant to subdivision (d) the application must
state: · the
applicant’s residence and office address; · the
courts to which the applicant has been admitted to practice and the dates of
admission; · that
the applicant is a licensee in good standing in those courts; · that
the applicant is not currently suspended or disbarred in any court; · the
title of each court and cause of action in which the applicant has filed an
application to appear pro hac vice in this state in the preceding two
years, the date of each application, and whether or not it was granted; · the
name, address, and telephone number of the active licensee of the State Bar of
California who is attorney of record. Pursuant to subdivision (e) the applicant must pay a
reasonable fee not to exceed $500 to the State Bar along with a copy of the
application that is served on the State Bar. III.
Discussion
Attorney Benjamin R. Rosichan, an attorney with Piasta
Walker Hagenbush, LLC, seeks admission to appear pro hac vice in the instant
matter on behalf of Plaintiffs Camea Gholar and Eric Lynn Thomas Jr. Upon
review, the Court finds that while Mr. Rosichan satisfies several requirements
set forth in California Rules of Court, Rule 9.40, certain deficiencies remain.
This
application is framed as a “renewed” application for pro hac vice
admission. There was a prior application,
filed in June 2024, that was apparently never calendared for hearing. In the first application, Mr. Rosichan filed
a declaration. In the renewed application,
Mr. Piasti filed a declaration. Mr.
Rosichan declares that he is not a resident of California, is not regularly
employed in California, and does not engage in substantial business,
professional, or other activities in California, as required by Rule 9.40(a). However, he fails to provide his residential
address. In the renewed application, Mr. Piasti fails to
provide Mr. Rosichan’s residential address. Mr.
Rosichan is admitted to practice law in Georgia and has been a member in good
standing of the State Bar of Georgia since 2017. He is also admitted and in
good standing with the following courts:
He
affirms that he has never been suspended or disbarred from practicing law
before any court. (Rosichan Decl., ¶¶ 3-4) Mr.
Rosichan states that he has not applied for pro hac vice admission in
California within the last two years. If this is incorrect, he must disclose
any prior applications, including those filed in this matter, along with their
outcomes. (Rosichan Decl., ¶ 5) In
compliance with Rule 9.40(d)(6), Mr. Rosichan has identified Edward A. Piasta
(SBN 238035), an active California attorney, as local counsel. Mr. Piasta’s
office address is 3301 Windy Ridge Parkway, Suite 110, Atlanta, Georgia 30339.
(Rosichan Decl., ¶ 6) Pursuant
to Rule 9.40(e), applicants must submit a $50 fee to the State Bar of
California and serve a copy of the application on the State Bar. Mr. Rosichan’s
filing states that the fee was submitted. Thereby meeting this requirement.
(Piasta Decl., ¶ 7) Based
on the foregoing, the application is DENIED without prejudice to allow the
applicant to correct the omission of his residential address. Given that the hearing is two days away, the
Court will grant the application at the time of hearing if Mr. Rosichan files
with the Court a supplemental declaration containing his home address. To avoid delays with the clerk’s office, this
may be filed directly with this department by emailing it to pasdeptp@lacourt.org. Dated: March 12, 2025 JARED D. MOSES
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DEPARTMENT P LAW AND MOTION RULINGS
Case Number: 23AHCV01916 Hearing Date: March 11, 2025 Dept: P
[TENTATIVE] ORDER DENYING MOTION BY DEFENDANT ANTHONY MA TO SET ASIDE/VACATE JUDGMENT AND QUASH ANY WRITS OF EXECUTION I. INTRODUCTION On August 23, 2023, Plaintiff National Commercial Recovery, Inc. ("Plaintiff") filed this action against Defendants TMD Holdings, LLC, Melwood Properties, Inc., Henry Wang, and Anthony Ma (“Ma”) (collectively, "Defendants") asserting claims for open book account, goods sold and delivered, and account stated arising from unpaid trucking and storage services allegedly provided to Defendants. On July 12, 2024, the Court entered default judgment in favor of Plaintiff against all Defendants. On January 23, 2025, Defendant Anthony Ma filed the instant motion to quash service of summons and set aside the default judgment, arguing that he was not properly served. Plaintiff filed an opposition on February 11, 2025, and on March 4, 2025, Ma filed a reply. II. LEGAL STANDARD CCP § 473.5 states: (a) When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered. (b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. (c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action. CCP § 473(d) provides that the “court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” Further, a “default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. Under § 473(d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) Where service is challenged, the burden is on the plaintiff to prove the facts requisite to an effective service. (Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160.) A proof of service containing a declaration from a registered process server invokes a rebuttable presumption of valid service. Similarly, a return of service by a public officer, such as a sheriff, is presumed correct and valid without the need for a sworn affidavit or separate declaration. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Evid. Code, §§ 664, 647.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 (“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”).) Merely denying service took place without more is insufficient to overcome the presumption. (See Yadegar, supra, 194 Cal.App.4th at 1428.) III. DISCUSSION Defendant Anthony Ma brings the instant motion to set aside judgment for invalid service of summons under CCP § 473(d). “‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]’ “(Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) Ma contends that he was not personally served with the summons and complaint in this matter. The Proof of Service states that Ma was served at his residence, 5614 Wellesley Avenue, Pittsburgh, PA, on September 28, 2023, at 12:27 PM. (Opposition Exhibit A). However, Ma asserts that he was attending a mandatory work meeting at 424 Gold Way, Pittsburgh, PA at the alleged time of service. (Ma Decl. ¶¶ 4-5; Motion Exhibit C.) He submits evidence, including meeting notes, text messages, and declarations from himself and Henry Wang, to corroborate his presence at the meeting. (Ma Decl., Exhs B-C.) A proof of service executed by a registered process server or sheriff’s department generally gives rise to a presumption of valid service, requiring the defendant to produce evidence to rebut it. (American Exp. Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.) Plaintiff argues that Ma was personally served by a Pennsylvania Sheriff, not a private process server, and that a sheriff has no motive to falsify service. (Opposition, p.5) Plaintiff contends that Ma’s evidence—consisting of internal company documents and text message screenshots—does not conclusively establish that he was not at home at the time of service. (Id.) Ma alleges that he first became aware of the default judgment in March 2024 and reached out to Plaintiff’s counsel but did not file the motion until January 2025. Plaintiff argues that Ma’s 10-month delay in bringing the motion demonstrates lack of diligence and is grounds for denying relief. (Opposition, p.5) However, the Court notes that subdivision (d) of section 473 contains no time limits in which a party must move to vacate a judgment or order that is void. The Court finds that Ma has failed to rebut the presumption of valid service under Evidence Code section 647. While Ma submits sworn declarations, meeting notes, and text messages, this evidence does not directly contradict the process server’s return or establish that Ma was not at home at the time of service. (Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419.) The meeting notes are internally generated company documents that do not independently verify Ma’s physical presence at 424 Gold Way at 12:27 PM on the date of service. Similarly, the text message screenshot showing a drink on a table was taken at 6:53 PM, hours after the alleged service, and does not confirm Ma’s whereabouts earlier in the day. (Opposition, p.5.) Moreover, Ma relies on his own declaration and that of co-defendant Henry Wang, both of whom have a vested interest in the outcome. Courts have repeatedly held that self-serving statements, without corroborating evidence, are insufficient to rebut the presumption of proper service. (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) Because Ma has not provided independent, verifiable evidence contradicting the process server’s proof of service, the Court finds that he has not met his burden to rebut the presumption of valid service. Therefore, the motion to set aside the default judgment under Code of Civil Procedure section 473, subdivision (d), is denied. IV. CONCLUSION AND ORDER Defendant Ma’s motion to set aside/vacate judgment is DENIED. Ma is to give notice. Dated: March 11, 2025 JARED D. MOSES
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DEPARTMENT P LAW AND MOTION RULINGS
Case Number: 24AHCV00316 Hearing Date: March 10, 2025 Dept: P
[TENTATIVE] ORDER GRANTING
DEFENDANT’S MOTION TO RECLASSIFY TO LIMITED JURISDICTION I. INTRODUCTION This is a personal injury action
arising from a motor vehicle accident that occurred on September 1, 2023, in
San Gabriel, California. Plaintiff Kien Vuong (“Plaintiff”) alleges that
Defendant Jason Chan (“Defendant”) negligently operated a vehicle, causing
injuries to Plaintiff. Defendant filed an instant motion
to reclassify from unlimited civil to limited civil on February 11,2025. The
motion is unopposed. II. LEGAL STANDARD Code of
Civil Procedure section 403.040 allows a plaintiff to file a motion for
reclassification of an action within the time allowed for that party to amend
the initial pleading. (Code Civ. Proc., § 403.040, subd. (a).) If the motion is
made after the time for the plaintiff to amend the pleading, the motion may
only be granted if (1) the case is incorrectly classified; and (2) the
plaintiff shows good cause for not seeking reclassification earlier. (Code Civ.
Proc., § 403.040, subd. (b).) “[A]n action or special proceeding
shall be treated as a limited civil case only if…(a) the amount in controversy
does not exceed thirty-five thousand dollars ($35,000)…(b) the relief sought is
a type that may be granted in a limited civil case…[and] the relief sought,
whether in the complaint, a cross-complaint, or otherwise, is exclusively of a
type described in one or more laws that classify an action or special
proceeding as a limited civil case or that provide that an action or special
proceeding is within the original jurisdiction of the superior court.” (Code
Civ. Proc., § 85.) “To reclassify an action because it
does not meet the jurisdictional amount involves evaluation of the amount
fairly in controversy, not an evaluation of the merits of the claim. The trial
court must reasonably determine that the verdict will “necessarily” fall short
of the (amount) required for an unlimited civil case.” (Stern v. Superior
Ct. (2003) 105 Cal.App.4th 223, 233.) Essentially, “the trial court looks
to the possibility of a jurisdictionally appropriate verdict not probability.”
(Id.) The “‘amount in controversy’ means the amount of demand, or
recovery sought, or the value of the property, or the amount of the lien, that
is in controversy in the action, exclusive of attorneys’ fees, interest, and
costs.” (Code Civ. Proc., § 85(a).) III. ANALYSIS Defendant moves the Court to
reclassify this case from unlimited to limited jurisdiction, arguing that
Plaintiff’s alleged injuries and damages do not support unlimited jurisdiction.
(Motion, p.3) Specifically, Defendant asserts that Plaintiff sustained only
soft tissue orthopedic injuries to his spine (Exhibit A) and is not claiming
lost income, loss of earning capacity, or property damage as a result of the
accident (Exhibit A). Plaintiff’s total medical expenses amount to $4,525.00,
as evidenced by Exhibit B – Premier Integrative Health Center’s billing
statement. Defendant asserts that discovery
confirms Plaintiff’s damages will necessarily fall below the $35,000
jurisdictional threshold. In support, Defendant submits Exhibit A—an
excerpt from Plaintiff’s verified responses to Form Interrogatories, Set One. Based on this record, the Court
finds that Defendant has submitted evidence supporting reclassifying the case
from unlimited to limited civil case. Further, Plaintiff has not opposed the
motion or presented any evidence suggesting a jurisdictionally appropriate
verdict. Therefore, the Court GRANTS Defendant’s motion to reclassify from
unlimited civil to limited civil. IV. CONCLUSION The Court GRANTS Defendant’s motion
to reclassify action to limited civil case and is transferred to the reclassification/transfer
desk. Defendant
is to give notice. Dated: March 10, 2025 JARED D. MOSES Case Number: 24NNCV04000 Hearing Date: March 10, 2025 Dept: P
[TENTATIVE] ORDER GRANTING
DEFENDANT JRE’S MOTION TO QUASH SERVICE OF SUMMONS I. INTRODUCTION Plaintiff Gabriela Cabrera
(“Plaintiff”) filed this action against Defendant Jewelry Repair Enterprises
Inc. (“JRE”), a Pennsylvania corporation, on September 4, 2024, alleging
violations of the Americans with Disabilities Act (ADA) and the Unruh Civil
Rights Act (UCRA). Plaintiff alleges that Plaintiff, who requires a wheelchair
for mobility, claims that JRE owns, operates, and controls a business at 1190
Galleria Way, Glendale, California, and that the facility has architectural
barriers that violate accessibility laws. On January 17, 2025, Plaintiff
filed a proof of service. On February 7, 2025, JRE filed the instant motion to
quash service of summons, arguing improper service and lack of both general and
specific jurisdiction. The motion is unopposed.
II. LEGAL STANDARD & ANALYSIS General jdx General jurisdiction exists when a defendant is domiciled in the forum
state or his activities there are substantial, continuous, and systematic. (F.
Hoffman-La Roche, Inc. v. Sup. Ct. (2005) 130 Cal.App.4th 782,
796.) General jurisdiction is found where the defendant’s activities are
substantial, continuous, and systematic. (Id.) “In such circumstances,
it is not necessary that the specific cause of action alleged be connected with
the defendant’s business relationship to the forum.” (Id.) If general
jurisdiction cannot be established, “[a] court may exercise specific
jurisdiction over a nonresident defendant only if: (1) the defendant has purposefully
availed himself or herself of forum benefits; (2) the controversy is related
to or arises out of the defendant’s contacts with the forum; and (3) the
assertion of personal jurisdiction would comport with fair play and substantial
justice.” (Id. (emphasis in original).) “The standard for establishing general jurisdiction is ‘fairly high,’
[citation] and requires that the defendant’s contacts be of the sort that
approximate physical presence.” (Elkman, supra, 173 Cal.App.4th at
1315 (emphasis in original).) “Factors to be taken into consideration are
whether the defendant makes sales, solicits or engages in business in the
state, serves the state’s markets, designates an agent for service of process,
holds a license, or is incorporated there.” (Id.) JRE argues that it is neither incorporated nor headquartered in
California, as it is a Pennsylvania corporation with its principal place of
business in Florida. (Russell Decl., ¶ 3.) JRE has no employees, officers,
directors, or offices in California. (Id. at ¶¶ 3, 5.) These limited
contacts do not establish the continuous and systematic presence necessary for
general jurisdiction. (Goodyear Dunlop Tires Operations, S.A. v. Brown
(2011) 564 U.S. 915, 919.) Therefore, JRE contends that this Court lacks
general jurisdiction. (Motion, p. 6.) JRE further argues that merely designating an agent for service of
process or registering to do business in California does not confer general
jurisdiction. (Thomson v. Anderson (2003) 113 Cal.App.4th 258, 268; King
v. American Family Mutual Insurance Co. (9th Cir. 2011) 632 F.3d 570, 575.)
Courts have repeatedly held that such registrations alone are insufficient. (Gray
Line Tours v. Reynolds Electrical & Engineering Co. (1987) 193
Cal.App.3d 190, 193–194; DVI, Inc. v. Superior Court (2002) 104
Cal.App.4th 1080, 1093.) Therefore, JRE asserts that its registration with the
California Secretary of State does not subject it to general jurisdiction.
(Motion, pp. 6-7.) The Court finds no basis for general jurisdiction. JRE is incorporated in
Pennsylvania, has its principal place of business in Florida, and has no
offices, employees, or operations in California. (Russell Decl., ¶¶ 3, 5.) As
the motion is unopposed and Plaintiff offers no evidence to the contrary, the
Court concludes that general jurisdiction is lacking. Specific jdx “Where general jurisdiction cannot be established, a court may assume
specific jurisdiction over a defendant in a particular case if the plaintiff
shows the defendant has purposefully availed himself or herself of forum
benefits; [ie.] the nonresident purposefully directed its activities at forum
residents or purposefully availed itself of the privilege of conducting
activities within the forum state, thus invoking the benefits and protections
of local law. (Hanson v. Denckla (1958) 357 U.S. 235.) Specific jurisdiction
involves a 3-part test in California. California courts adopt the same test as
the test used by the court in Boschetto v. Hansing (9th Cir. Cal. 2008)
539 F.3d 1011,1016: (1) The nonresident defendant must do some act or
consummate some transaction with the forum or perform some act by which he
purposefully avails himself of the privilege of conducting activities in the
forum, thereby invoking the benefits and protections of its laws; (2) the claim
must be one which arises out of or results from the defendant's forum-related
activities; and (3) exercise of jurisdiction must be reasonable.” Panavision
International, L.P. v. Toeppen (9th Cir. 1998) 141 F.3d 1316, 1320
[applying California law].).” (Jewish Defense Organization, Inc. v. Sup. Ct.
of Los Angeles County (Rambam) (1999) 72 Cal.App.4th 1045, 1054.) Purposeful availment as defined by Boschetto requires affirmative
conduct promoting the transaction. “To have purposefully availed itself of the
privilege of doing business in the forum, a defendant must have ‘performed some
type of affirmative conduct which allows or promotes the transaction of business
within the forum state.’” Boschetto, 539 F.3d at 1016. JRE argues that it has no meaningful ties to California—it does not own,
lease, or operate the store in question. The store is run by a franchisee. JRE cites cases in which courts have found
that a franchisor’s connection to a state through its franchisees alone is not
enough for jurisdiction. Because JRE has no direct involvement with the store,
it contends that the Court lacks specific jurisdiction. (Motion, p. 7.) JRE also argues that personal jurisdiction would not comport with
substantial justice and fair play. It contends that exercising specific
jurisdiction would be unreasonable because it is not a California company, does
not conduct business in California, and has no connection to this dispute.
Given these factors, JRE asserts that the Court should not exercise specific
jurisdiction. (Motion, p. 8.) The Court agrees with Defendant. JRE does not own, lease, or operate the
store in question, and its connection to California through a franchisee does
not establish a substantial relationship between JRE’s forum activities and
Plaintiff’s claim. As Plaintiff provides no evidence to the contrary, the Court
finds that specific jurisdiction is lacking. Therefore, the Court grants
Defendant’s motion to quash for lack of general and specific jurisdiction. Service of
process. Defendant contends Plaintiff failed to comply with Code of Civil
Procedure section 412.30 such that the summons is defective. CCP section 412.30
provides that “[i]n an action against a corporation or an unincorporated
association (including a partnership), the copy of the summons that is served
shall contain a notice stating in substance: ‘To the person served: You are
hereby served in the within action (or special proceeding) on behalf of (here
state the name of the corporation or the unincorporated association) as a
person upon whom a copy of the summons and of the complaint may be delivered to
effect service on said party under the provisions of (here state appropriate
provisions of Chapter 4 (commencing with Section 413.10) of the Code of Civil
Procedure).’” (Code Civ. Proc., § 412.30.) The provisions of this section are
mandatory and service of a summons that does not comply with this section is
ineffective. (See Tresway Aero, Inc. v. Superior Court (1971) 5 Cal.3d
431, 435; National Union Fire Insurance Co. v. Superior Court (1966) 247
Cal.App.2d 326, 329.) To effectuate service on a corporation, summons may be delivered to the
agent for service of process or to the president, chief executive officer, or
other head of the corporation, a vice president, a secretary or assistant
secretary, a treasurer or assistant treasurer, a controller or chief financial
officer, a general manager, or a person authorized by the corporation to
receive service of process. (See Code Civ. Proc., § 416.10(a), (b).) To
effectuate service on an unincorporated association, the copy of summons and
complaint may be delivered to the agent for service of process or the
president, vice president, secretary, treasurer, general manager, or a person
authorized to receive service of process. (See id., § 416.40.) Service
on a business organization whose form is unknown may be effected by leaving a
copy of the summons and complaint during usual office hours with the person who
is apparently in charge of the office and thereafter mailing a copy of the summons
and complaint by first-class mail to the person to be served. (See id.,
§ 415.95.) Defendant argues that Plaintiff bears the burden of proving proper
service, yet the individual served—Mr. Peng Horng—is neither employed by JRE
nor authorized to accept service. (Green Decl., Ex. B; Proof of Service filed
Jan. 17, 2025) As a result, Defendant contends that service was defective, and
the summons should be quashed. (Motion, pp. 8-9.) Given that service was made on Peng Horng, who is neither employed by JRE
nor authorized to accept service, the Court finds that service of process was
defective. This failure of service provides an additional and independent basis
for granting Defendant’s motion. III. CONCLUSION The
Court GRANTS JRE’s motion to quash for lack of jurisdiction and improper
service of process. JRE is to give notice. Dated: March 7, 2025
JARED D. MOSES
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