Related Content
in Los Angeles County
Case
ETHEL J. BROOK TRUST
Jul 08, 2024 |
Trust (General Jurisdiction) |
Trust (General Jurisdiction) |
24STPB07622
Case
KARINA RODRIGUEZ VS NUMERO UNO ACQUISITIONS LLC ET AL
Jul 01, 2024 |
Gary Y. Tanaka
|
Premise Liability (e.g., dangerous conditions of property, slip/trip and fall, dog attack, etc.) (General Jurisdiction) |
Premise Liability (e.g., dangerous conditions of property, slip/trip and fall, dog attack, etc.) (General Jurisdiction) |
24TRCV02201
Ruling
MERCURY INSUANCE COMPANY VS JOHAN VASQUEZ DE LA ROSA
Jul 11, 2024 |
Echo Dawn Ryan |
17STLC02908
Case Number:
17STLC02908
Hearing Date:
July 11, 2024
Dept:
26
Mercury Ins. Co. v. De La Rosa, et al.
VACATE DISMISSAL AND ENTER JUDGMENT PURSUANT TO STIPULATION
(CCP § 664.6)
TENTATIVE RULING:
Plaintiff Mercury Insurance Companys Motion to Enforce Settlement Agreement is GRANTED. JUDGMENT TO BE ENTERED IN PLAINTIFFS FAVOR AND AGAINST DEFENDANT JOHAN VASQUEZ DE LA ROSA AKA JOHNAN DELAROSA VASQUEZ
IN THE AMOUNT OF $2,050.00 PRINCIPAL, COSTS OF $529.50.00, AND ATTORNEYS FEES OF $875.00.
ANALYSIS:
On October 11, 2017, Plaintiff Mercury Insurance Company (Plaintiff) filed this subrogation action against Defendant Johan Vasquez De La Rosa aka Johnan Delarosa Vasquez
(Defendant). Defendant filed an answer on November 22, 2017. On May 11, 2018,
Plaintiff filed a request for dismissal and retention of jurisdiction under Code of Civil Procedure section 664.6. The Court dismissed the action pursuant to the request on the same date. (Request for Dismissal, filed 05/11/18.)
On May 13, 2024, Plaintiff filed the instant Motion to Vacate Dismissal, Enforce Settlement, and Enter Judgment. To date, no opposition has been filed.
Discussion
The instant motion is brought under Code of Civil Procedure, section 664.6, which states in relevant part:
If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.
(Code Civ. Proc., § 664.6, subd. (a).) Prior to January 1, 2021, parties under section 664.6 meant the litigants themselves, not their attorneys.
(
Levy v. Superior Court
(1995) 10 Cal.4th 578, 586.) The current statute provides that parties includes an attorney who represents the party and an insurers agent. (Code Civ. Proc., § 664.6, subd. (b).) The settlement must include the signatures of the parties seeking to enforce the agreement, and against whom enforcement is sought. (
J.B.B. Investment Partners, Ltd. v. Fair
(2014) 232 Cal.App.4th 974, 985.) The settlement agreement complies with the statutory requirements set forth above because it was signed by both parties. (Motion, Thai Decl., Exh. 1, p. 3.)
Furthermore, the request for retention of jurisdiction must be made in writing, by the parties, before the action is dismissed for the Courts retention of jurisdiction to conform to the statutory language. (
Wackeen v. Malis
(2002) 97 Cal.App.4th 429, 433 [If, after a suit has been dismissed, a party brings a section 664.6 motion for a judgment on a settlement agreement but cannot present to the court a request for retention of jurisdiction that meets all of these requirements, then enforcement of the agreement must be left to a separate lawsuit.].)
The parties request for retention of jurisdiction complies with these requirements because it was made in writing to the Court before the action was dismissed. (Motion, Thai Decl., Exh. 1, ¶1; Request for Dismissal, 05/11/18, ¶1(b)(6).)
The settlement provides that Defendant would pay Plaintiff $14,000.00 in monthly payments following their execution of the agreement. (Motion, Thai Decl., Exh. 1, ¶1.) The settlement agreement also provides that upon Defendants default, Plaintiff may seek judgment in the demand of the Complaint ($17,873.22) plus costs of $370.00 for filing and $99.50 for service, actual attorneys fees and costs, minus any monies paid. (
Ibid
.) Payments of $11,950.00 were made towards the settlement, after which Defendant defaulted. (
Id
. at ¶5 and Exh. 3.) Based on the foregoing, Plaintiff requests entry of judgment against Defendant in the amount of $2,050.00 principal ($14,000.00 - $11,950.00), costs of $529.50.00, and attorneys fees of $875.00. (
Id
. at ¶9.)
Conclusion
Plaintiff Mercury Insurance Companys Motion to Enforce Settlement Agreement is GRANTED. JUDGMENT TO BE ENTERED IN PLAINTIFFS FAVOR AND AGAINST DEFENDANT JOHAN VASQUEZ DE LA ROSA AKA JOHNAN DELAROSA VASQUEZ
IN THE AMOUNT OF $2,050.00 PRINCIPAL, COSTS OF $529.50.00, AND ATTORNEYS FEES OF $875.00.
Moving party to give notice.
Ruling
IMMIGRANT RIGHTS DEFENSE COUNCIL, LLC. VS LAURA E. VACA, ET AL.
Jul 10, 2024 |
23STCV21848
Case Number:
23STCV21848
Hearing Date:
July 10, 2024
Dept:
53
Superior Court of California
County of Los Angeles Central District
Department 53
immigrant rights defense council, llc
;
Plaintiff
,
vs.
laura e. vaca
, et al.;
Defendants
.
Case No.:
23STCV21848
Hearing Date:
July 10, 2024
Time:
10:00 a.m.
[tentative] Order
RE:
(1)
motion to set aside court order of march 22, 2024 deeming requests for admissions admitted
(2)
motion for monetary sanctions against plaintiffs attorney
MOVING PARTIES:
Defendants Laura E. Vaca and Agencia Privada de Inmigracion, Inc.
RESPONDING PARTY:
Plaintiff Immigrant Rights Defense Council, LLC
(1)
Motion to Set Aside Court Order of March 22, 2024 Deeming Requests for Admission Admitted
(2)
Motion for Monetary Sanctions against Plaintiffs Attorney
The court considered the moving, opposition, and reply papers filed in connection with each motion.
EVIDENTIARY OBJECTIONS
The court sustains plaintiff Immigrant Rights Defense Council, LLCs evidentiary objections, filed on June 26, 2024, because defendants
Laura E. Vaca and Agencia Privada de Inmigracion, Inc. did not authenticate the exhibits to which the objections are directed.
MOTION TO SET ASIDE COURT ORDER OF MARCH 22, 2024 DEEMING REQUESTS FOR ADMISSION ADMITTED
Defendants Laura E. Vaca (Vaca) and Agencia Privada de Inmigracion, Inc. (API) (collectively, Defendants) request that the court set aside its March 22, 2024 order granting the motion to deem requests for admissions admitted, filed by plaintiff Immigrant Rights Defense Council, LLC (Plaintiff), or, alternatively, striking Plaintiffs First Amended Complaint.
First, the court finds that Defendants have not shown that the court should set aside its March 22, 2024 order granting Plaintiffs motion and deeming admitted the truth of the matters specified in the Requests for Admission directed to defendant API.
Defendants contend that API responded to Plaintiffs discovery at the same time that Vaca served her responses.
In support of that contention, Defendants have filed Defendants Laura E. Vaca and Agencia Privada De Inmigracion, Inc.s Responses to Plaintiff Immigrant Rights Defense Council, LLCs Requests for Admission, Set One, served on Plaintiff on November 10, 2023.
(Mot., Exhibit A, pp. 1, 8.)
Defendants have also submitted the November 27, 2023 email from Plaintiffs counsel, in which counsel stated that [b]ecause [Defendants] responded jointly, [counsel would] treat the responses together.
(Mot., Ex. C, p. 1.)
Defendants have not, however, presented evidence or argument establishing that these responses were served in connection with the Requests for Admission that were the subject of the courts March 22, 2024 order.
Specifically, the court ruled on Plaintiffs motion as to the Requests for Admission that were served on defendant API on December 28, 2023.
(March 22, 2024 Order, p. 2:3-4; Pl. Mot. to Deem Admissions Admitted, filed Feb. 9, 2024, p. 1:22-26 [moving for an order deeming admitted the admissions in the requests served on API on December 28, 2023], and Medvei Decl., Ex. 1 [Requests for Admission, Set One, served on API on December 28, 2023].)
Defendants did not present evidence or argument establishing that (1) API served responses to the Requests for Admission that Plaintiff propounded on it on December 28, 2023, or (2) APIs responses to the Requests for Admission directed to defendant Vaca may constitute responses to the Requests for Admission directed to API, particularly in light of the facts that (i) Plaintiff served the subject discovery on API on December 28, 2023, but (ii) the responses that API argues satisfied its obligation to respond to that discovery were served on Plaintiff before that date, on November 10, 2023.
Further, Defendants did not argue, or present evidence establishing, that API should be relieved of its admissions pursuant to Code of Civil Procedure section 2033.300.
The court therefore finds that Defendants have not shown that the court should set aside its March 22, 2024 order granting Plaintiffs motion to deem admitted the truth of the matters specified in the Requests for Admission directed to defendant API.
Second, the court finds that Defendants have not shown that the court lacks subject matter jurisdiction over this action by failing to present adequate argument establishing lack of jurisdiction.
Thus, the court finds that Defendants have not shown that the court should strike Plaintiffs First Amended Complaint and dismiss this action on that ground.
Third, the court finds that Defendants have not shown that Plaintiff does not have standing.
Thus, the court finds that Defendants have not shown that the court should strike Plaintiffs First Amended Complaint and dismiss this action on that ground.
Here, Plaintiff has prayed for,
inter alia
, injunctive relief and attorneys fees.
(FAC, p. 10, Prayer, ¶¶ 1-2.)
Pursuant to Business and Professions Code section 22446.5, [a]ny other party who, upon information and belief, claims a violation of this chapter has been committed by an immigration consultant may bring a civil action for injunctive relief on behalf of the general public and, upon prevailing, shall recover reasonable attorneys fees and costs.
(Bus. & Prof. Code, § 22446.5, subd. (b);
Immigrant Rights Defense Council, LLC v. Hudson Ins. Co.
(2022) 84 Cal.App.5th 305, 308 [pursuant to this statute, any person who believes an [Immigration Consultant Act] violation has been committed may bring a civil action on behalf of the general public seeking solely injunctive relief].)
Defendants have not shown that Plaintiff, as a party who claims that Defendants have violated the Immigration Consultant Act, may not bring this action for injunctive relief against them.
(FAC ¶¶ 14-15, 19-20.)
Moreover, while the court notes that Defendants have cited
Immigrant Rights Defense Council, LLC
,
supra
, 84 Cal.App.5th 305 in support of their argument, in that case, the court held that Plaintiff did not fall within the class of persons
who may recover against an ICA bond
, and did not hold that Plaintiff may not bring an action under section 22446.5, subdivision (b).
(
Immigrant Rights Defense Council, LLC
,
supra
, 84 Cal.App.5th at p. 261 [emphasis added].)
Instead, the court recognized that this statute sets forth three classes of plaintiff who may pursue actions against immigrant consultants who violate the Immigration Consultant Act, including any party who believes a violation has been committed by an immigration consultant pursuant to section 22446.5, subdivision (b).
(
Id.
at pp. 309-310.)
Fourth, the court finds that Defendants have not shown that Plaintiffs cause of action for violation of the Immigration Consultant Act is preempted by federal law.
(
People v. Salcido
(2019) 42 Cal.App.5th 529, 534 [holding that federal law does not preempt the application of the [Immigrant Consultant Act] to the defendant].)
Thus, the court finds that Defendants have not shown that the court should strike the First Amended Complaint or dismiss this action on that ground.
For the reasons set forth above, the court denies Defendants motion.
Finally, the court is concerned about the
tone and content of a number of remarks made by Defendants and their counsel in the papers filed in connection with this motion, which include personal attacks, disparaging remarks, taunts, and insults against Plaintiffs counsel.
(Mot. to Set Aside, pp. 5:17-19, 14:27, 15:13-14, and Vaca Decl., p. 18:5, 18:24-25.)
The court finds that such remarks are distracting from the merits of the issues and arguments presented, are not persuasive advocacy, and have no place in written or oral submissions, presentations, or communications made to the court or to other parties or counsel in this litigation. As the court states in section 1 of its Courtroom Information for Department 53 posted on the courts website, [t]he court places a very high value on civility, courtesy, and professionalism in the practice of law and the judicial process.¿ The court expects all attorneys and parties to treat each other, witnesses, jurors, court personnel, the court, and others with the highest level of civility, courtesy, and professionalism, both inside and outside the courtroom. The court expects all parties, attorneys, and other participants in this litigation to govern their conduct accordingly.
MOTION FOR MONETARY SANCTIONS AGAINST PLAINTIFFS ATTORNEY
Defendants move the court for an order awarding monetary sanctions in their favor and against counsel for Plaintiff, Sebastian Medvei (Medvei), in the total amount of $145,756.30.
It appears that Defendants move for this relief on the ground that Medvei engaged in misuses of the discovery process by (1) violating the meet and confer requirements of Code of Civil Procedure sections 2030.300, 2031.310, and 2033.290, and (2) filing discovery motions beyond the 45-day deadline that applies to motions to compel further discovery responses.
(Mot., pp. 2:9-3:19 5:19-21, 5:30-6:15, 7:5-6 [The express admission to engage in the meet and confer requirement, when mandatory, makes the award of attorney fees obligatory].)
First, the court finds that Defendants have not shown that Plaintiffs counsel, Medvei, engaged in a misuse of the discovery process in electing not to meet and confer before filing three discovery motions on behalf of Plaintiff.
As noted by Defendants, Plaintiff filed the following three motions on February 9, 2024: (1) motion to deem admitted the Requests for Admission served on defendant API, which the court granted on March 22, 2024, (2) motion to compel defendant API to respond to Plaintiffs Requests for Production of Documents, Set One, which is set for hearing on October 28, 2024, and (3) motion to compel defendant API to respond to Plaintiffs Form Interrogatories, Set One, which is set for hearing on October 29, 2024.
As a threshold matter, the court notes that it has not yet ruled on Plaintiffs motions to compel defendant APIs responses to its document demands and interrogatories.
Thus, any determination on the merits of those motions is premature.
The court does not issue any rulings as to whether Plaintiff has shown that it is entitled to the relief requested in those motions.
However, the court notes that Plaintiff filed those motions pursuant to Code of Civil Procedure sections 2033.280, 2031.300, and 2030.290, respectively.
(Pl. Feb. 9, 2024 Mot. to Deem Admissions Admitted, p. 2:1-3; Pl. Feb. 9, 2024 Mot. to Compel Responses to Doc. Demands, pp. 2:1-3, 4:1-20; Pl. Feb. 9, 2024 Mot. to Compel Responses to Interrogatories, pp. 2:1-3, 4:1-17.)
Those statutes do not set forth a meet and confer requirement.
(Code Civ. Proc., §§ 2033.280, 2031.300, 2030.290.)
Plaintiff did not file its motions pursuant to sections 2030.300, 2031.310, and 2033.290, and therefore Defendants have not shown that the meet and confer requirements of those statutes apply to Plaintiffs motions.
(Code Civ. Proc., §§ 2033.290, subd. (b)(1) [meet and confer declaration required for motion to compel further responses to requests for admission], 2030.300, subd. (b)(1) [meet and confer declaration required for motion to compel further responses to interrogatories], 2031.310, subd. (b)(2) [meet and confer declaration required for motion to compel further responses to document demands].)
To the extent that Defendants contend that Plaintiff brought its motions under the incorrect statutes (i.e., based on Defendants assertion that defendant API did serve responses to the subject discovery), the remedy would be to file opposition papers requesting that the court deny those motions.
[1]
The court finds, however, that Defendants, have not shown, for purposes of this motion only, that Medvei violated the meet and confer requirements of statutes inapplicable to the motions that Plaintiff filed on February 9, 2024.
Second, the court finds that Defendants have not shown that Plaintiffs counsel, Medvei, engaged in a misuse of the discovery process by filing the three discovery motions on behalf of Plaintiff on February 9, 2024.
Defendants contend that Plaintiff waived the right to compel further responses to discovery by failing to file the three motions described above within 45 days of the date of November 10, 2023.
However, as set forth above, Plaintiff filed its motions pursuant to Code of Civil Procedure sections 2033.280, 2031.300, and 2030.290, which are not subject to the 45-day deadline set forth in sections 2033.290, 2031.310, and 2030.300.
To the extent that Defendants contend that Plaintiff should have filed its motions pursuant to those statutes and failed to satisfy their requirements, Defendants may file opposition papers requesting that the court deny those motions.
[2]
For the reasons set forth above, the court finds that Defendants have not shown that Medvei has engaged in a misuse of the discovery process and therefore denies their motion for sanctions.
The court denies Medveis request for monetary sanctions against Defendants.
ORDER
The court denies defendants Laura E. Vaca and Agencia Privada de Inmigracion, Inc.s motion to set aside March 22, 2024 order deeming requests for admission admitted.
The court denies defendants Laura E. Vaca and Agencia Privada de Inmigracion, Inc.s motion
for sanctions.
The court orders plaintiff Immigrant Rights Defense Council, LLC to give notice of this ruling.
IT IS SO ORDERED.
DATED:
July 10, 2024
_____________________________
Robert B. Broadbelt III
Judge of the Superior Court
[1]
As set forth above, the court does not issue any rulings regarding whether Plaintiff has properly filed those motions or has shown that it is entitled to the relief requested therein.
[2]
As set forth above, the court does not make any rulings as to the merits of Plaintiffs pending motions to compel discovery responses.
Ruling
LUKE VIOLA VS BISHOP AMAT MEMORIAL HIGH SCHOOL, AN ENTITY UNKNOWN
Jul 17, 2024 |
24PSCV01314
Case Number:
24PSCV01314
Hearing Date:
July 17, 2024
Dept:
O
Tentative Ruling
BISHOP AMAT MEMORIAL HIGH SCHOOLs MOTION TO STRIKE PORTIONS OF PLAINTIFFS COMPLAINT is
GRANTED
(see CCP section 425.14, infra)
;
leave to amend is TBD.
Background
This case arises from an assault on campus. Plaintiff LUKE VIOLA alleges the following against Defendant BISHOP AMAT MEMORIAL HIGH SCHOOL, an entity unknown (the School): On September 8, 2022, a student (Moises Escobedo) spit on and slapped Plaintiff; the assault was recorded by other students. (Complaint
¶
14.) Over a month later, Plaintiff told his mother about the video. (
¶15.) Plaintiff alleges that the School knew of the video but kept it a secret.
[1]
(Complaint p. 6.) The complaint alleges that Plaintiff endured ongoing abuse
[2]
and lost his senior year.
On April 24, 2024, Plaintiff filed suit against the School for:
1.
Negligent Supervision
2.
Negligent Training, Hiring and/or Supervision
3.
Assault and Battery (Does 1-50)
[3]
On May 31, 2024, the School filed its answer.
On June 3, 2024, the School filed the instant motion to strike (MTS).
On June 25, 2024, Plaintiff filed his opposition.
On July 3, 2024, the School filed its reply.
Legal Standard
Code of Civil Procedure section 435(b) provides, in relevant part, that Any party within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. The Court may, upon such motion, or at any time at its discretion (a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading; and (b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of the state, a court rule or an order of the court. (Code Civ. Proc. § 436.) An MTS is the proper procedural vehicle to challenge improper remedies, including punitive damages. (Motion p. 4, citing
United Western Medical Center v. Superior Court
(1996) 42 Cal.App.4th 500.)
Discussion
The School seeks to strike punitive damages on two grounds: (i) punitive damages are precluded by Code of Civil Procedure section 425.14 and (ii) the complaint fails to plead facts that the School is guilty of oppression, fraud, or malice. As the first argument is dispositive of the issue, the court will focus its analysis on whether Plaintiffs request for punitive damages against a religious organization (Complaint
¶10)
without first obtaining an order from this court is proper. For all the reasons set forth by the School, the motion is granted.
CCP section 425.14 is unambiguous in its requirements for the pleading of punitive damages against a religious corporation.
No claim for punitive or exemplary damages against a religious corporation or religious corporation sole shall be included in a complaint or other pleading unlesss the court enters an order allowing an amended pleading that includes a claim for punitive or exemplary damages to be filed
. The court may allow the filing of an amended pleading claiming punitive or exemplary damages
on a motion
by the party seeking the amended pleading
and upon a finding, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established evidence which substantiates that plaintiff will meet the clear and convincing standard of proof under Section 3294 of the Civil Code. (
Code Civ. Proc. § 425.14) (emphasis added).
The legislative history of the statute reflects an intent to afford religious organizations protection against unsubstantiated punitive damages claims without regard to the conduct giving rise to the claim. (See Motion pp. 4-5 citing
Little Co. of Mary Hosp. v. Superior Court
(2008) 162 Cal.App.4th 261, 265;
Rowe v. Superior Court
(1993) 15 Cal.App.4th 1711, 1721, 1723, fn. 13.) By its terms, section 425.14's requirements must be satisfied whenever the defendant is a religious organization, regardless of the nature of the conduct giving rise to the plaintiff's claim. (
Little Co. of Mary Hosp
.
supra
, 162 Cal.App.4th at p. 269.)
Plaintiff does not dispute
the applicability of the foregoing authority
. (Opp. p. 3:5-6 [I was not aware of Code of Civil Procedure 425.14.].) Instead, Plaintiff argues that the statute is unconstitutional, and he raises the issue to preserve it for appeal. (Opp. p. 3:8-13 [Students in religious schools should have a constitutional right, without court permission, to sue for discrimination and the conduct alleged in the complaint.].)
Here, even if the statute is unconstitutional, Plaintiff has presented
no
analysis
.
"'Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] ... waived.' [internal citation omitted.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness.
When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived
." (
Benach v. County of Los Angeles
(2007) 149 Cal.App.4th 838, 852, emphasis added.) Thus absent an analysis, the issue of the statutes constitutionality is waived.
As for leave to amend, though failure to provide leave to amend on the first motion generally constitutes as an abuse of discretion,
leave to amend would likely not resolve the underlying issues involved in the complaint. The court will hear from Plaintiff on leave to amend.
Conclusion
Based on the foregoing, the MTS punitive damages is GRANTED; leave to amend is TBD.
[1]
Admittedly, the complaint is unclear namely as it largely asks questions (see e.g., Why wasnt everyone enrolled in Period 7 PE brought in together to find out who the second video was taken by? Why did SCHOOL not do their job to protect PLAINTIFF and ensure a safe environment? (
¶20).)
There is then another allegation stating that On April 26, 2023, Plaintiff was on SnapChat with the baseball team from 2021. (
¶21.) The relevancy of Plaintiff being in a video is unclear.
[2]
No other events of abuse are articulated aside from the fact that the school experiences a high frequency of fights (
¶25) and that
Escobedo has a propensity for violence (
¶28.)
[3]
It is unclear how Plaintiff is truly ignorant of a doe defendants identity when Escobedo is identified as one of the students physically assaulting Plaintiff. (Complaint p. 12.)
Ruling
CARLOS MENDOZA VS ALEJANDRO GOMEZ
Jul 10, 2024 |
24PSCV00199
Case Number:
24PSCV00199
Hearing Date:
July 10, 2024
Dept:
6
CASE NAME:
Carlos Mendoza v. Alejandro Gomez
Motion to Compel Further Responses to Form Interrogatories, Special Interrogatories, and Requests for Production of Documents
TENTATIVE RULING
The Court DENIES Plaintiffs motions
and further DENIES Plaintiffs requests for monetary sanctions.
Defendant is ordered to give notice of the Courts ruling within five calendar days of this order.
BACKGROUND
This is a motor vehicle personal injury action. On January 19, 2024, plaintiff Carlos Mendoza (Plaintiff) filed this action against defendant Alejandro Gomez (Defendant) and Does 1-10, alleging a cause of action for motor vehicle negligence.
On June 3, 2024, Plaintiff filed motions to compel Defendants further responses to Plaintiffs
Form Interrogatories, Special Interrogatories, and Requests for Production of Documents. On June 26, 2024, Defendant opposed the motions. On July 2, Plaintiff replied.
LEGAL STANDARD
Interrogatories
Code of Civil Procedure section 2030.300(a) provides that 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.
(Code Civ. Proc., § 2030.300, subd. (a).)
Code of Civil Procedure section 2030.300(d) further provides that [t]he 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 a further response to interrogatories, 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., § 2030.300, subd. (d).)
Requests for Production of Documents
Code of Civil Procedure section 2031.310(a) provides that on receipt of a response to a request for production of documents, the demanding party may move for an order compelling further responses if:
(1) A statement of compliance with the demand is incomplete.
(2) A representation of inability to comply is inadequate, incomplete, or evasive.
(3) An objection in the response is without merit or too general.
Code of Civil Procedure section 2031.310(h) further provides that 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 further response to a demand, 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., § 2031.310, subd. (h).)
DISCUSSION
Meet and Confer
A motion to compel further responses requires the parties to meet and confer before bringing such a motion. (Code Civ. Proc., § 2030.300, subd. (b)(1).) Counsel for Plaintiff provided a declaration indicating Plaintiffs efforts to meet and confer. (Berjis Decl., ¶ 9.) Unable to resolve their disagreement, the parties proceeded to an Informal Discovery Conference on May 1, 2024. (Minute Order (5/1/24).) At the IDC, pursuant to the agreement of counsel, the Court ordered Defendant to serve supplemental responses by May 22, 2024. (Ibid.) The Court finds Plaintiffs meet-and-confer efforts satisfactory.
Analysis
Plaintiff propounded his first sets of Form Interrogatories, Special Interrogatories, and Requests for Production of Documents on February 8, 2024. (Berjis Decl., ¶ 3.) Despite Defendants request for a three-week extension, Plaintiff granted Defendant a two-week extension to respond. (Id., ¶¶ 4, 5.) On March 28, 2024, the day that Defendants responses were due, Defendant requested another extension. (Id., ¶ 6.) Plaintiff refused because Defendant did not provide any explanation as to why another extension was needed. (Id., ¶ 7.) That same day, Defendant served responses to Plaintiffs Form Interrogatories, Special Interrogatories, and Requests for Production of Documents. (Id., ¶ 8.) Defendant objected to every single request and interrogatory, except Form Interrogatory No. 1.1. (Ibid.) On June 3, 2024, Plaintiff moved to compel further responses.
On June 26, 2024, Defendant filed oppositions. Defendant contends that Plaintiffs motions are now moot because Defendant served further responses on June 24, 2024. (Rabbani Decl., Exh. A, Proof of Service.) Plaintiffs counsel, in reply, stated that they never received the further responses. Instead, Defendants further responses were only made available because they were attached to Defendants oppositions.
Plaintiff states that some of the responses that Defendant ultimately provided are sufficient, but others remain inadequate. Plaintiff maintains his request for an order compelling Defendants further responses to: Request for Production of Documents and Things Nos. 3, 4, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 21, 24, 25, 26, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, and 43; Special Interrogatories Nos. 5, 8, 23, 25, 26, 27, 28, 29, 34, 35, 36, 37, 40, 41, and 47; and Form Interrogatories Nos. 2.3(b), 2.4, 2.5(b) and (c), 2.6, 2.7(d), 7.1, 12.5, 12.6, 14.1, 20.2(a), (c), (e), (f) and (g), 20.5, 20.8(a), (b) and (c), and 20.9.
A motion to compel further production must set forth specific facts showing good cause justifying the discovery sought by the inspection demand. (See, e.g., CCP § 2031.310(b)(1).) Plaintiff has not identified why further responses should be required of Defendant. In his moving papers, Plaintiff merely stated in a conclusory manner that the documents sought will not only help evaluate Plaintiffs case, but it is most certainly necessary in facilitating a settlement in this matter. (RPD Motion, 8:3-4.) In reply, the only reason Plaintiff provided for granting the motions is that Defendants responses are not in substantial compliance. (RPD Reply, 4:12.) This falls short of the specific facts standard. Further, there is no separate statement identifying the particular responses and reasons for compelling further responses.
Based on the foregoing, the Court denies Plaintiffs motions.
The Court further DENIES Plaintiffs requests for monetary sanctions. Based on the declarations of Elham R. Rabbani, the Court finds that given the circumstances regarding the unavailability of attorneys, and given the early stage of this case and the lack of cooperation in granting the requested extensions, that the imposition of monetary sanctions would be unjust.
CONCLUSION
The Court DENIES Plaintiffs motions and further DENIES Plaintiffs requests for monetary sanctions.
Defendant is ordered to give notice of the Courts ruling within five calendar days of this order.
Ruling
AARON ROSEN DBA RA CONSTRUCTION VS DAVID MALKA
Jul 09, 2024 |
24VECV00152
Case Number:
24VECV00152
Hearing Date:
July 9, 2024
Dept:
T
ROSEN V MALKA 24VECV00152
[TENTATIVE] ORDER:
Defendant David Malkas Demurrer to the Complaint is SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the First Cause of Action for Breach of Oral Contract and OVERRULED as to the Second, Third, Fourth, and Fifth causes of action.
Leave to amend is limited to curing the pleading defects identified and not to add new causes of action.
The Motion to Strike is DENIED.
Introduction
The Demurrer and Motion to Strike were filed by Defendant David Malka (Defendant) against the Complaint filed by Plaintiff Aaron Rosen dba RA Construction (Plaintiff).
Defendant demurs the entire Complaint and each cause of action (i.e., the first cause of action for breach of oral contract, second cause of action for common counts, third cause of action for common count, fourth cause of action for unjust enrichment, and fifth cause of action for promissory fraud).
Defendant also moves to strike exemplary damages allegations in the Complaint.
Demurrer Discussion
Res Judicata
The Court takes judicial notice of the documents attached to the Demurrer: Complaint (Exhibit A), Notice of Settlement of Entire Case (Exhibit B), and Request for Dismissal (Exhibit C) from Los Angeles Superior Court case Aaron Rosen dba RA Construction v. Van Nuys Lofts, LLC, et al., Case Number 22VECV00735 (the Prior Lawsuit).
(Evid. Code, 452, subd. (d) [stating that a court may take judicial notice of court records].)
Those documents show that Plaintiff settled and then dismissed the Prior Lawsuit without prejudice.
(Hardie v. Nationstar Mortgage LLC (2019) 32 Cal.App.5th 714, 718, fn. 3 [stating that a court may take judicial notice of the existence, facial contents, and legal effect of & court records [citations] &].)
A dismissal with prejudice following a settlement constitutes a final judgment on the merits. A dismissal with prejudice is the modern name for a common law retraxit.
[Citation.] ... Dismissal with prejudice is determinative of the issues in the action and precludes the dismissing party from litigating those issues again.
[Citations.]
(Estate of Redfield (2011) 193 Cal.App.4th 1526, 1533.)
On the other hand, [i]t is established in California that a voluntary dismissal without prejudice is not a judgment on the merits, and, as such, has no claim-preclusive effect upon a later suit.
(Gray v. La Salle Bank, N.A. (2023) 95 Cal.App.5th 932, 950.)
Since Plaintiffs voluntary dismissal of the Prior Lawsuit without prejudice has no preclusive effect, Defendants Demurrer to the entire Complaint based on res judicata is OVERRULED.
First Cause of Action Breach of Oral Contract
The Court agrees with Defendant that the first cause of action for breach of oral contract fails to state facts sufficient to constitute a cause of action.
Specifically, the Complaint does not allege consideration.
Consideration consists of either a benefit to the promisor or a detriment to the promisee.
It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him.
[Citation.]
(Speirs v. BlueFire Ethanol Fuels, Inc. (2015) 243 Cal.App.4th 969, 987.)
Here, Plaintiff alleges the following.
After Plaintiff provided general contractor services pursuant to a written agreement with nonparty Van Nuys Lofts, LLC, and the nonparty refused to pay Plaintiff in breach of the written agreement, Defendant assume[d] [the] responsibility to pay Plaintiff
[$100,000] & in a written text message.
(Compl., ¶ 10.)
Defendants agreement to pay Plaintiff was based on Defendants interest in the property where the construction project took place and the benefit the Defendant received from Plaintiffs work.
(Compl., ¶ 10.)
Defendant never paid Plaintiff the amount he had promised to pay.
(Compl., ¶ 11.)
However, those facts do not show what consideration was provided in exchange for Defendants alleged promise to pay Plaintiff $100,000.
Plaintiff cannot rely on its past performance to show consideration because [p]ast consideration cannot support a contract.
(Passante v. McWilliam (1997) 53 Cal.App.4th 1240, 1247.)
Accordingly, the demurrer to the first cause of action for breach of oral contract is SUSTAINED WITH LEAVE TO AMEND.
Second, Third, and Fourth Causes of Action Common Counts, Account Stated, and Unjust Enrichment
Defendant demurs the second, third, and fourth causes of action, arguing that they are barred by the doctrine of res judicata.
The Court has found that res judicata argument unpersuasive.
Accordingly, the demurrer to the second, third, and fourth causes of action is OVERRULED.
Fifth Cause of Action Promissory Fraud
Defendant demurs the fifth cause of action, arguing that the Complaint has not alleged intent to defraud.
[I]n a promissory fraud action, to sufficiently alleges defendant made a misrepresentation, the complaint must allege (1) the defendant made a representation of intent to perform some future action, i.e., the defendant made a promise, and (2) the defendant did not really have that intent at the time that the promise was made, i.e., the promise was false.
(Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060.)
[F]or the second requirement, the falsity of that promise is sufficiently pled with a general allegation the promise was made without an intention of performance.
(Ibid.)
In other words, the only necessary averment is the general statement that the promise was made without the intention to perform it, or that the defendant did not intend to perform it.
[Citation.]
(Ibid.)
Here, the Complaint alleges that Defendant made a promise to Plaintiff to pay $100,000 for Plaintiffs work, but did not intend to perform the promise when he made it to Plaintiff.
(Compl., ¶¶ 22, 23.)
That allegation is sufficient to allege intent to defraud.
Accordingly, the demurrer to the fifth cause of action for promissory fraud is OVERRULED.
Demurrer Conclusion
Defendants Demurrer is SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the First cause of action, and OVERRULED as to the Second, Third, Fourth, and Fifth causes of action.
Motion to Strike Discussion
Defendant moves to strike the exemplary damages allegations, arguing that Plaintiffs entire Complaint relies on alleged breach of contract.
As such, Plaintiffs prayer for exemplary damages is not supported by law.
(Motion, p. 5:3-5.)
However, [t]he words oppression, fraud, or malice in Civil Code section 3294 being in the disjunctive, fraud alone is an adequate basis for awarding punitive damages.
(Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 135.)
Here, the Court has found that Plaintiff has alleged facts sufficient to constitute the fifth cause of action for promissory fraud.
Accordingly, the Motion to Strike is DENIED.
IT IS SO ORDERED, CLERK TO GIVE NOTICE.
Ruling
SEPULVEDA VILLAGE, LLC VS KEVIN U. NGUYEN
Jul 09, 2024 |
23VECV05505
Case Number:
23VECV05505
Hearing Date:
July 9, 2024
Dept:
T
23VECV05505 Sepulveda Village v Nguyen
Tentative ruling:
Plaintiffs Motion to compel further responses to form interrogatories from defendant: Grant. Defendant to serve verified further responses without objection within 20 days to Form Interrogatories: 15.1, 50.1, 50.2, 50.3, 50.4, 50.5, 50.6.
Plaintiffs motion to compel responses and production of documents from defendant: Grant. Defendant is to serve verified Code compliant written responses without objection and document production to Request for Production, Set One, Nos. 1-14, within 20 days.
Monetary sanctions for discovery abuse without substantial justification pursuant to CCP section 2023.010, et seq are ordered against defendant Kevin Nguyen to plaintiff in the sum of $1,500, payable by 8/9/2024 to the Client Trust Account of Bosche & Bosche, 300 Spectrum Center Drive, Suite 400, Irvine, CA 92618 as reasonable fees and expenses incurred in making these motions.
Ruling
BANK OF AMERICA N.A. VS SOO S CHO
Jul 10, 2024 |
23STCV25173
Case Number:
23STCV25173
Hearing Date:
July 10, 2024
Dept:
72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE RULING
BANK OF AMERICA N.A.,
Plaintiff,
v.
SOO S CHO,
Defendants.
Case No:
23STCV25173
Hearing Date:
July 10, 2024
Calendar Number:
10
Plaintiff Bank of America N.A. (Plaintiff) seeks default judgment against Defendant Soo S Cho (Defendant).
Plaintiff requests:
(1) money judgment in the amount of $86,498.84, consisting of:
(a) damages in the amount of $85,995.34;
(b) costs in the amount of $503.50.
The Court GRANTS Plaintiffs request for default judgment.
Background
Plaintiff is a subsidiary of Bank of America Corporation.
Defendant opened a credit account with Plaintiff and obtained credit from Plaintiff. Plaintiff is currently indebted to Defendant in the amount of $85,995.34. Plaintiff failed to make periodic payments as required by the agreement covering use of the credit account. The last payment occurred on February 24, 2023.
Plaintiff filed this action October 16, 2023, raising one claim for common counts.
On December 22, 2023, the Court entered default against Defendant.
Legal Standard
CCP § 585 permits entry of a judgment after a Defendant has failed to timely answer after being properly served.
A party seeking judgment on the default by the Court must file a Form CIV-100 Request for Court Judgment, and:
(1) Proof of service of the complaint and summons;
(2) A dismissal of all parties against whom judgment is not sought (including Doe defendants) or an application for separate judgment under CCP § 579, supported by a showing of grounds for each judgment (CRC 3.1800(a)(7));
(3) A declaration of non-military status as to the defendant (typically included in Form CIV-100) (CRC 3.1800(a)(5));
(4) A brief summary of the case (CRC 3.1800(a)(1));
(5) Admissible evidence supporting a prima facie case for the damages or other relief requested (
Johnson v. Stanhiser
(1999) 72 Cal.App.4th 357, 361-362);
(6) Interest computations as necessary (CRC 3.1800(a)(3));
(7) A memorandum of costs and disbursements (typically included in Form CIV-100 (CRC 3.1800(a)(4));
(8) A request for attorneys fees if allowed by statute or by the agreement of the parties (CRC 3.1800(a)(9)), accompanied by a declaration stating that the fees were calculated in accordance with the fee schedule as per Local Rule 3.214.
Where a request for attorney fees is based on a contractual provision the specific provision must be cited; (Local Rule 3.207); and
(9) A proposed form of judgment (CRC 3.1800(a)(6));
(10) Where an application for default judgment is based upon a written obligation to pay money, the original written agreement should be submitted for cancellation (CRC 3.1806). A trial court may exercise its discretion to accept a copy where the original document was lost or destroyed by ordering the clerk to cancel the copy instead (
Kahn v. Lasorda's Dugout, Inc.
(2003) 109 Cal.App.4th 1118, 1124);
(11) Where the plaintiff seeks damages for personal injury or wrongful death, they must serve a statement of damages on the defendant in the same manner as a summons (Code Civ. Proc. § 425.11, subd. (c), (d)).
(California Rules of Court rule 3.1800.)
Pursuant to Code Civ. Proc., § 1033.5(a)(1), items are allowable as costs under Section 1032 if they are filing, motion, and jury fees.
A party who defaults only admits facts that are well-pleaded in the complaint or cross-complaint. (
Molen v. Friedman
(1998) 64 Cal.App.4th 1149, 1153-1154.) Thus, the complaint must state a claim for the requested relief.
Discussion
Service of the Complaint and Summons
According to the proof of service filed on October 31, 2023, Defendant was served on October 26, 2023 at 1718 N Las Palmas Avenue, Apartment 617, Los Angeles, California 90028, via personal service.
Non-Military Status
Alexander Baizer Carr avers to Defendants non-military status.
Summary of the Case
Plaintiff provides a brief summary of the case in the declaration of Roberta Galbreath. Plaintiff adequately pleads its cause of action in the Complaint.
Evidence of Damages
Code of Civil Procedure section 580 prohibits the entry of a default judgment in an amount in excess of that demanded in the complaint.
(
Kim v. Westmoore Partners, Inc.
(2011) 201 Cal.App.4th 267, 286.) Moreover, a statement of damages cannot be relied upon to establish a plaintiff's monetary damages, except in cases of personal injury or wrongful death. (
Ibid
.) In all other cases, when recovering damages in a default judgment, the plaintiff is limited to the damages specified in the complaint. (
Ibid
.) Moreover, a plaintiff must submit admissible evidence supporting a prima facie case for the damages or other relief requested (
Johnson v. Stanhiser
(1999) 72 Cal.App.4th 357, 361-362.)
Roberta Galbreath is a custodian of records for Plaintiff. Galbreath avers that the submitted records showing the amount due on Defendants account with Plaintiff are contemporaneously recorded by a person with actual knowledge of the information in question and are true and accurate copies of Plaintiffs business records.
Interest
Plaintiff does not seek interest.
Memorandum of Costs and Disbursements
Plaintiff includes a memorandum of costs in the submitted Form CIV-100. Alexander Baizer Carr avers that Plaintiff expended $503.50 in costs.
Attorneys Fees
Plaintiff does not seek attorneys fees.
Proposed Form of Judgment
Plaintiff has submitted a proposed form of judgment consistent with the foregoing.
Submission of the Written Agreement
California Rule of Court 3.1806 states that unless otherwise ordered judgment upon a written obligation to pay money requires a clerks note across the face of the writing that there has been a judgment. Here, Plaintiff has not submitted the original documents. The Court does not discern any practical need for such a clerks note on the written obligation in the current case and therefore orders that it need not be included. If this causes any issues for any party or non-party, they are authorized to bring the matter to the Courts attention.
Statement of Damages
Plaintiff does not need to submit a statement of damages because this is not a personal injury or wrongful death case.
Ruling
JULIA SARABI VS AMERICAN HONDA MOTOR CO., INC., A CALIFORNIA CORPORATION
Jul 09, 2024 |
23AHCV02228
Case Number:
23AHCV02228
Hearing Date:
July 9, 2024
Dept:
3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT
JULIA SARABI
,
Plaintiff(s),
vs.
AMERICAN HONDA MOTOR CO., INC.
,
Defendant(s).
)
)
)
)
)
)
)
)
)
)
)
CASE NO.:
23AHCV02228
[TENTATIVE] ORDER RE:
MOTION TO COMPEL PLAINTIFFS DEPOSITION
Dept. 3
8:30 a.m.
July 9
, 2024
)
Defendant American Honda Motor Co., Inc. (Defendant) moves for an order to compel the deposition of plaintiff Julia Sarabi (Plaintiff) pursuant to Code of Civil Procedure section 2025.450. On June 25, 2024, Plaintiff filed a limited opposition brief which specified that no substantive opposition would be filed. Therefore, Plaintiff does not dispute that in December 2023, Defendant noticed her deposition for February 14, 2024, and that she served objections stating she would not attend. It is also undisputed that Plaintiff has not provided any dates for a deposition. Accordingly, the motion is GRANTED and Plaintiff is ordered to appear for her deposition within 20 days of the date of this Order. Sanctions are also imposed against Plaintiff in the total amount of $260, consisting of 1 hour at defense counsels hourly rate of $200 and a $60 filing fee, to be paid no later than 20 days after the date of this order.
Dated this
9th
day of
July
, 2024
William A. Crowfoot
Judge of the Superior Court
Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
Document
REBECCA CASTILLO VS FACE HAUS, LLC
Feb 14, 2020 |
Gloria White-Brown |
Civil Rights/Discrimination (General Jurisdiction) |
Civil Rights/Discrimination (General Jurisdiction) |
20PSCV00124