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Filing # 141975974 E-Filed 01/13/2022 06:05:24 PM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN AND
FOR OSCEOLA COUNTY, FLORIDA
CASE NUMBER: 2020-CA-001106
CIVIL DIVISION: 20
XIAO SHENG YUE,
Plaintiff, .
vs.
CYNTHIA M. FOERSTER AND
CHAPP, INC., ,
Defendants.
a
AMENDED UNIFORM ORDER SETTING CASE FOR JURY TRIAL AND PRE-TRIAL
CONFERENCE AND REQUIRING PRE-TRIAL MATTERS TO BE COMPLETED
(Division 20 - Revised May 1, 2020)
It appearing that this case is at issue and ready to be set for trial, it is ORDERED as follows:
1. FAMILIARITY WITH THIS ORDER. Counsel and pro se (unrepresented) parties shall
read this order, be familiar with its contents and comply with its requirements. FAILURE TO COMPLY
WITH ALL REQUIREMENTS OF THIS ORDER MAY RESULT IN THE IMPOSITION OF
SANCTIONS. ;
2. REFERRAL TO MEDIATION; DEADLINE. This case is hereby referred to mediation.
The parties shall immediately consult and agree on a mediator anda date for mediation. Plaintiff's counsel
shall submit a proposed Mediation Order to the Court within ten (10) days ofthe date of this Order. Court-
ordered mediation shall be completed prior to the Pre-Trial Conference.
3. TRIAL DATE. This case is set for a Jury Trial during the three (3) week trial docket
beginning MARCH 21, 2022, in Courtroom 5-E at 9:00 am at the Osceola County Courthouse, 2
Courthouse Square, Kissimmee, Florida 34741.
Length of time currently estimated for trial is: 4 DAYS.
4. PRE-TRIAL CONFERENCE. Lead Trial Counsel and pro se parties shall attend a Pre-
Trial Conference on FEBRUARY 7, 2022, at 2:00 p.m., in Courtroom 5-E. Telephonic and video
appearances may be arranged. Please contact the judicial assistant or check the website for Division 20’s
Remote Appearances Procedures. PRE-TRIAL CONFERENCE HAS BEEN WAIVED.
5. EXPERT WITNESSES: DISCLOSURE; DEADLINES; TESTS; EXAMINATIONS;
EXPERIMENTS; AND LIMITATION AT TRIAL.
Revised May I, 2020
Division 20 - Uniform Trial Order
(a) No less than 90 days before the Pre-Trial Conference, Plaintiff(s) shall disclose all expert
witnesses (including treating experts) that in good faith, Plaintiff(s) actually intends to testify at trial.
(b) Within fifteen (15) days of the Plaintiff(s) disclosure of experts, the Defendant(s) shall
disclose all expert witnesses that in good faith, Defendant(s) actually intends to testify at trial.
(c) As used herein, “disclose” means furnishing in writing (i) the expert’s name, business
address and telephone number, (ii) his or her curriculum vitae or qualifications, (iii) his or her medical
specialty or field of expertise, (iv) a statement of the specific subjects upon which the expert will testify
and offer opinions and (v) the party or parties against whom the expert will be called to testify. Any changes
in an expert’s opinion or changes in the basis of the expert’s opinion must be disclosed to all parties no less
than forty-five (45) days prior to the Pre-Trial Conference.
(d) Parties disclosing expert(s) shall provide opposing counsel three (3) proposed deposition
dates for each expert disclosed. Opposing Counsel shall select one of the dates provided within five (5)
business days of receipt of disclosure or request additional dates. If requested, new deposition dates shall
be provided to opposing counsel within five (5) days of the request. The party receiving the alternate dates
shall select one of the dates provided within five (5) days of the receipt thereof. The parties shali attend ex
parte or short matters before the undersigned within ten (10) days if, at this point, the parties are unable to
schedule expert depositions.
(e) All out-of-court testing, experiments or physical or mental examinations by experts must
be completed prior to the expert’s deposition.
(f) Experts will be made available for deposition by the party retaining them without
necessity of subpoena. The Court may limit the number of experts at trial.
6. EXCHANGE OF WITNESS LISTS AND EVIDENCE SCHEDULES. No less than sixty
(60) days before the Pre-Trial Conference, attorneys and pro se parties shall serve the following:
(a) A list of all witnesses including potential impeachment and rebuttal witnesses who may
testify at trial. The list shall provide the name, address and telephone number of the witness and shall
specify whether the witness is a liability, damage, rebuttal or impeachment witness.
(b) A schedule of all exhibits, including depositions, a party may offer at trial, lettered
sequentially. Exhibits shall be described with specificity. For example, “all medical records” is
insufficient.
7. ADDITIONAL REQUIREMENTS PRIOR TO PRETRIAL CONFERENCE.
(a) No less than 30 days prior to the Pre-Trial Conference, each party shall serve
designations of the depositions it intends to offer at trial. No less than 20 days prior to Pre-Trial
Conference, the parties shall serve counter (or “fairness”) designations. Disputes over deposition
designations must be heard by the Court no less than five (5) business days before the first day of
Trial. If the parties cannot resolve disputes over deposition designations, and no hearing time can
be coordinated, the parties shall submit a properly marked copy of the transcript and a proposed
order identifying the page and line of the designations and of the objections that must be ruled on
by the Court no less than five (5) business days before the first day of Trial.
Page 2 of 8
(b) Jury Instructions. The parties shall exchange proposed jury instructions and Verdict forms
no later than thirty (30) working days prior to the Pre-Trial Conference.
(c) No later than fifteen (15) days prior to the Pre-Trial Conference, lead counsel and pro se
parties, if any, shall meet either live or by video. Live or video attendance at this meeting by lead trial
counsel is mandatory. Plaintiff’s attorney (or if Plaintiff is pro se, Defendant’s attorney) shall arrange a
mutually agreeable time, date and place for this meeting and, if the meeting is to occur by video, shall also
arrange the video conference and provide the information to all counsel/parties.
At the meeting the attorneys, and pro se parties, shall:
1. Discuss and attempt to settle the case.
2. Produce all documents to be offered at trial. Exhibits must be Bates stamped in any
case in which more than fifty (50) exhibits are involved.
3. Examine, and initial every exhibit to be produced by the opposing side(s) at trial.
The Parties shall agree on those exhibits which will be admitted as joint exhibits and
those which can be admitted without objection. The parties shall then identify all other
exhibits and specify any objections thereto. “Exhibit Schedules” shall then be prepared
reflecting these separate categories of exhibits for each Party. The Exhibit Schedules for
each party shall be attached to the Joint Pre-Trial Statement described below. ANY
OBJECTIONS NOT NOTED ARE WAIVED.
4. Review opposing parties’ witness lists. Witness lists for each Party shall be attached
to the Joint Pre-Trial Statement described below.
5. Discuss and stipulate to any facts requiring no proof at trial.
6. Discuss, clarify and frame all factual issues of fact to be tried.
7. Identify all legal, procedural or evidentiary issues to be decided prior to or during trial.
8. Discuss any evidentiary stipulations.
9. Agree upon and draft a concise statement of the case to be read by the Court at the
beginning of voir dire.
10. Discuss the proposed jury instructions (voir dire through closing) and verdict forms.
The Court will instruct the jury on the law prior to opening statements: discuss which
jury instructions are to be read at that time. For Standard Jury Instructions — Civil Cases,
see www. floridasupremecourt.org. The parties shall prepare the following:
(i.) All Agreed Jury Instructions, including Supreme Court instructions for voir
dire, instructions prior to opening, instructions prior to closing argument and
instruction following closing arguments.
(ii.) All disputed instructions identifying the Party proposing it/them and the
phase ofthe Trial for which the instruction is proposed.
Page 3 of 8
(iii.) The above versions of Jury Instructions shall be prepared to include a cover
page reflecting the style of the case, an appropriate title, with instructions
following in paragraph form without Jury Instruction numbers, headers or
brackets. Instructions shall be 14-point, Times New Roman and double spaced.
Pages shall be numbered.
(iv.) The proposed jury instructions and verdict form(s) shall be provided to the
Court at the Pre-Trial Conference in hard copy ANDa digital copy shall be sent to
the Judicial Assistant at ctjawbl@ocnjcc.org in WORD FORMAT.
11. Discuss and attempt to agree upon any other matters leading to a more orderly and
expeditious trial, e.g. copies in lieu of originals, witnesses out of turn, etc.
12. Discuss and exchange all demonstrative aids, including presentations board, models,
picture video/computer presentations, reenactments and animations.
8. JOINT PRE-TRIAL STATEMENT. No less than ten (10) days before the Pre-Trial
Conference, Plaintiff's attorney (or Defendant’s attorney, if Plaintiff is pro se) shall serve a “Proposed Joint
Pre-Trial Statement” reflecting any and all agreements and disputes as to the matters listed below. The
Parties shall immediately thereafter attempt to resolve any disputes in the Proposed Joint Pre-Trial
Statement. A Joint Pre-Trial Statement addressing the matters described below shall then be prepared, filed
and served no less than five (5) days before the Pre-Trial Conference. The original shall be filed with
the Clerk and one hard copy shall be delivered to the judge no later than 5 business days prior to the Pre-
trial Conference.
(a) The Joint Pre-Trial Statement shall contain the following:
1. A statement of the case to be read to the jury at the beginning of voir dire.
2. A statement of admitted facts which may be read at trial as a stipulation of
counsel.
3. Issues of fact to be tried.
4. Unresolved issues of law, procedure or evidence.
5. Each party’s witness list.
6. Each party’s schedule of exhibits with objections.
7. Any stipulation on evidentiary matters specifying the applicable matters to
which such stipulation applies, ie. authenticity, hearsay exceptions, etc.
8. The number of peremptory challenges.
9. Estimate of the number ofjurors requested for the venire panel.
10. A current estimate of the number of days required for trial.
11. The specific category of damages, including attorneys’ fees, claimed by each party
and, when possible, the amount of such damages sought by each party.
Page 4 of 8
12. Designation of Lead Trial Counsel. No change of Lead Trial Counsel may be
made without leave of the Court, if such change disrupts the trial schedule.
13. A list of all outstanding motions and date/time of any hearing thereon or statement
as to whether each motion is/was waived/withdrawn/moot..
14. Identify with specificity, any matters of which the parties will ask the Court to take
Judicial Notice under Fla, Stat. 90.201 and 90.202, and notate any objections or
agreement thereto by opposing counsel.
(b) If the Parties are unable to agree on the contents of the Joint Pre-Trial Statement, the
differing views should be set forth therein.
9. DISCOVERY CUT-OFF DEADLINE. Discovery closes on the day prior to the Pre-Trial
Conference unless extended by Court order for good cause shown. All depositions and CME reports must
be completed; answers to interrogatories, responses to request to produce and responses to requests for
admissions must be served by this date. Joint Stipulations to extend discovery without Court order do not
alter the discovery cut-off.
10. MOTIONS CUT-OFF DEADLINE.
(a) All motions (including Daubert motions) other than motions in limine, must be FILED
AND HEARD at least thirty (30) days prior to the Pre-Trial Conference. Late-filed motions are subject to
summary denial.
(b) Motions in limine or motions to exclude witnesses or evidence or motions directed to the
conduct of the trial must be filed and served prior to the Pre-Trial Conference. Motions in limine may not
be scheduled for a hearing unless they contain a certification of a good faith attempt to resolve the matter
without Court action. Notice of hearings on motions in limine must specifically identify those issues which
remain in controversy after counsel has conferred, in accordance with Division 20’s standing Order on
Motions in Limine. Motions in limine must be scheduled and heard no later than one week prior to the
beginning of the trial period No motions in limine will be heard during the trial period, absent good cause.
(c) No Motions may be scheduled for hearing unless they containa certification of good faith
attempt to resolve the matter at issue.
11. TRIAL BRIEFS. Trial briefs are optional but if one is filed, a copy for the Court shall be
delivered to Chambers no less than five (5) working days before trial. Highlighted copies of relevant legal
authorities must accompany the chambers copy delivered to the Court.
12. NOTIFICATION OF SETTLEMENT. The parties shall immediately notify the judicial
assistant of a settlement by email at ctjawbl@ocnjcc.org followed within five (5) business days by a filed
Notice of Settlement signed by all parties. Noncompliance with this paragraph will result in the case
remaining on the docket as well as the possible imposition of other sanctions. The case will not be
removed from the Pre-Trial docket until all documents necessary for closure of the case are filed with
the Clerk.
13. MODIFICATION OF ORDER FOR GOOD CAUSE. The provisions of this Order may
be modified only by Court order in accordance with applicable law.
Page 5 of 8
14. SANCTIONS. Failure to attend the meeting of attorneys required in paragraph 7(c), the
Pre-Trial Conference, or trial or to otherwise strictly comply with the requirements of this Order may result
in the imposition of appropriate sanctions, including but not limited to, contempt, dismissal, default, striking
of pleadings, exclusion of evidence, assessment of fees or costs, and/or other sanctions.
15. AUDIO/VISUAL. Requests for audio and/or visual equipment must be made at least 48
hours in advance of trial. For assistance, see the Court’s web site, www.ninthcircuit.org under Services,
then Technology Services, then Audio/Visual.
16. ADDITIONAL NINTH CIRCUIT AND DIVISION SPECIFIC GUIDELINES:
Counsel are charged with reading and being familiar with the contents of the following Division documents:
(i) Guidelines, Procedures and Expectations of this division; (ii) Guidelines for Counsel Regarding
Compulsory Medical Examinations; and (iii) Amended Ninth Judicial Circuit Courtroom Decorum Policy.
All of the additional guidelines are available at www.ninthcircuit.org/about/judges/circuit/margaret-h-
schreiber.
17. SUMMARY OF DEADLINES. For scheduling purpose only, see Attached Summary of
Deadlines. In the event of any conflict between this Uniform Order and the Summary of Deadlines, this
Uniform Order shall control.
18. INCONSISTENCY WITH CASE MANAGEMENT ORDERS. If there are any provisions
of this Order which are inconsistent with a Case Management Order entered or to be entered in this case,
the Case Management Order will govern.
at.
DONE AND ORDERED in Kissimmee, Florida on this gs, day of | ow, 2022.
{
oh
MARGARET H. SCHREIBER
Circuit Judge — Division 20
(Revised May I, 2020)
CERTIFICATE OF SERVICE
tA
I HEREBY CERTIFY that the foregoing was filed with the Clerk ofthe Court this 3 day of
an * _ , 2022 by using the Florida Courts E-Filing Portal System. Accordingly, a copy ofthe
foregoing is being served on this day to Manuel Stefan, Esquire, mstefan@forthepeople.com,
evictor@forthepeople.com, and to Jorge Santiero, Jr., Esquire, jsanteiro@feci-group.com, ssmith3@feci-
group.com,legalservice@fc i-group.com. jhe
Judicial Assistant’to J udge Schreiber
Page 6 of 8
If you are a person with a disability who needs any accommodation in order
to participate in this proceeding, you are entitled, at no cost to you, to the
provision of certain assistance. Please contact the ADA Coordinator, Court
Administration, Osceola County Courthouse, 2 Courthouse Square, Suite
6300, Kissimmee, Florida, (407) 742-2417, at least 7 days before your
scheduled Court appearance, or immediately upon receiving this notification
if the time before the scheduled appearance is less than 7 days; if you are
hearing or voice impaired, call 711.
Page 7 of 8
SUMMARY OF DEADLINES
(Civil Division 20 — Judge Margaret H. Schreiber)
(Revised May I, 2020)
Mediation - completed prior to the Pre-Trial Conference ($2)
Plaintiff's Expert Witness list with deposition dates - 90 days prior to Pre-Trial Conference (§5a; 5d)
Defendant's Expert Witness list with deposition dates - within 15 days of Plaintiff's disclosure ($55; 5d)
Exchange of Witness Lists and Exhibit Schedules — 60 days before Pre-Trial Conference ($6)
Deposition Designations - no later than 30 days prior to the Pre-Trial Conference. Counter Designations
~ no later than 20 days prior to the Pre-Trial Conference ($7a)
Meeting of Attorneys - 15 days prior to Pre-Trial Conference ($7c)
All Motions (including Daubert motions) other than motions in limine - filed and heard at least 30 days
prior to Pre-Trial Conference ($/0a)
Motions in Limine - filed prior to Pre-Trial Conference and heard no later than one week prior to first
day of trial period ($705)
Jury Instructions/Verdict forms - exchanged no later than 30 working days prior to the Pre-Trial
Conference (§7) and presented to the Judge at the Pre-Trial Conference ($7(c)10(iv.))
Joint Pre-Trial Statement signed by attorneys/pro se parties - no less than 5 days before Pre-Trial
Conference ($8)
Discovery Cut-Off - 1 day prior to Pre-Trial Conference ($9)
Trial briefs (optional) - 5 working days prior to Trial ($/ 1)
NOTE: In the event of any conflict between this Summary of Deadlines and the Uniform Order, the
Uniform Order shall control. ,
, Page 8 of 8
Related Content
in Osceola County
Ruling
Frink vs. Manka
Jul 15, 2024 |
23CV-0201842
FRINK VS. MANKA
Case Number: 23CV-0201842
Tentative Ruling on Motion to Amend Petition: Plaintiff Samuel E. Frink moves pursuant to CCP § 473 to file
an Amended Verified Petition. Defendant Paul Manka filed an untimely opposition on July 10, 2024. The
opposition was due nine court days prior to the hearing.
CCP § 473(a)(1) permits any pleading to be amended in further of justice and on any terms as may be proper,
after notice to the adverse party. The Court’s discretion in this regard will usually be exercised liberally to permit
amendment. Nestle v. Santa Monica (1972) 6 Cal. 3d 920, 939. “If the motion to amend is timely made and the
granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where
the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious
defense, it is not only error but an abuse of discretion.” Morgan v. Sup.Ct. (1959) 172 Cal. App. 2d 527, 530.
The Court finds that the motion was timely made and that granting the motion would be in the furtherance of
justice. Defendant’s untimely opposition, which the Court has considered, objects to motion based on alleged
procedural defects. In the interests of justice, the Court will exercise its discretion to overlook the procedural
defects in Plaintiff’s motion, as well as to overlook the procedural defect of the untimely opposition. Defendant’s
opposition requests the Court continue the existing trial and mandatory settlement conference, if the motion is
granted. That issue is not properly before the Court. Defendant can file the appropriate motion, if he feels it is
appropriate.
The motion is GRANTED. A proposed order was not lodged with the Court as required by Local Rule 5.17(D).
Plaintiff shall prepare the order. No copy of the proposed Amended Petition has been lodged with the Court for
filing. Plaintiff shall submit a copy of the proposed Amended Petition for filing. Plaintiff is also required to
immediately serve a copy of the filed Amended Petition on Defendant.
Ruling
DAVID WALLACH, ET AL. VS PROVIDENCE HEALTH SYSTEM-SOUTHERN CALIFORNIA, ET AL.
Jul 19, 2024 |
21STCV07431
Case Number:
21STCV07431
Hearing Date:
July 19, 2024
Dept:
M
CASE NAME: Wallach, et al., v. Providence Health System, et al.
CASE NO.: 21STCV07431
MOTION:
Approve Minors Compromise
HEARING DATE: 7/19/202
4
Summary of Proposed Minors Compromise
:
Claimant¿ Time Wallach ¿(Claimant), a minor, by and through their Guardian Ad Litem, ¿David Wallach (Petitioner), agreed to settle their claims against Defendant Providence Saint John's Health Center under the following terms:
Settlement to Minor: $1,143,136.11
Settlement to Others: David Wallach - $6,356,863.89
Injuries: Elizabeth Wallach died from a pulmonary embolism the day after giving birth to her daughter, Time Wallach. Time lost her mother's love, companionship, relationship, guidance and support as a result of her mother's wrongful death.
Medical Expenses:
None.
Costs
: Petitioner bears costs.
Fees
: $243,135.42. Counsel provides the retainer with a contingency fee. The terms provide that the Court will set the fee for representation of minor clients. (See ¶12.) The fee requested is approximately 21.26% of the recovery. The Court believes the fee request to be reasonable.
Total Settlement
$1,143,136.11
Less fees and costs
-$243,135.42
Net Settlement
$900,000.69
Petitioner proposes to dispose the funds as follows: i) $800,000.69 to be invested in a single-premium deferred annuity, subject to withdrawal only on authorization of the Court; and ii) $100,000.00 be transferred to the trustee of a trust that is either created by or approved in the order approving the settlement or judgment for the minor. Petitioner supplies the terms of the proposed annuity at attachment 18b(3) and trust at attachment 18b(7). These methods are permitted by L.A. County Super. Ct. Rule 4.115.
Order
:
Claimant¿ Time Wallach ¿(Claimant), a minor, by and through their Guardian Ad Litem, ¿David Wallach (Petitioner), has agreed to settle their claims against Defendant Providence Saint John's Health Center in exchange for $1,143,136.11.
The parties having appeared (CRC Rule 7.952(a)), and the Court having reviewed and heard the ¿Petition¿, the Court finds that the settlement is reasonable, and based thereon, approves and GRANTS the petition. (CRC Rule 7.950.) The Court intends to sign the proposed Orders (MC-351, MC-355).
THE COURT SETS AN OSC RE COMPLIANCE/PROOF OF RECEIPT OF DEPOSIT ON September 24, 2024, at 8:30 AM. No appearance is required if the receipt is filed.
Plaintiff is ordered to give notice.
Ruling
CLAREMONT STARS SOCCER CLUB VS BRIAN WIESNER, ET AL.
Jul 17, 2024 |
23PSCV01913
Case Number:
23PSCV01913
Hearing Date:
July 17, 2024
Dept:
K
1.
See below
.
2.
Plaintiff Claremont Stars Soccer Clubs Motion to Compel Defendant Carlos Morrell to Provide a Supplemental Response to Request Nos. 3, 16, 24-26, and 28 of the Request for Production of Documents, Set One is GRANTED.
Morrell is ordered
to provide further, Code-compliant responses within 20 days from the date of the notice of ruling.
Sanctions are awarded against Morell in the reduced amount of $1,460.00 and are payable within 30 days from the date of the notice of ruling.
3.
Defendant Brian Wiesners Motion for Leave to File Documents Under Seal for In Camera Review is DENIED.
Background
Plaintiff Claremont Stars Soccer Club (Club) alleges as follows: Club is a non-profit organization governed by a Board of Directors (Board). Brian Wiesner (Wiesner) and Carlos Morrell (Morell) formerly served as President and Treasurer, respectively, of the Club. Starting in approximately March 2022, Wiesner and Morrell decided to increase Club fees charged for each participant without providing any justification. On February 22, 2023, the Board elected to remove Weisner as Club President. Five of the Board members responsible for Weisners removal and notification of removal, were subsequently notified by an attorney, who had been hired by Wiesner and Morrell with Club funds, that they were expelled from the Club. On March 8, 2023, the Board held its meeting, voted to confirm their removal of Weisner and Morrell as President and Treasurer, respectively, and elected a new set of officers. Wiesner and Morrell opened a new Team Snap account to directly compete with the Clubs Team Snap account and create confusion among the parents as to who was actually running the Club. Wiesner and Morrell have refused to recognize the newly elected officers of the Club and have falsely represented to the community and parents that they are still officers of the Club. The Board has since found evidence that Wiesner and Morrell have stolen Club funds of over $250,000.00. On June 27, 2023, Club filed a complaint, asserting causes of action against Wiesner, Morrell and Does 1-10 for:
1.
Breach of Fiduciary Duty
2.
Conversion
3.
Unjust Enrichment A Case Management Conference is set for September 4, 2024.
1.
Motion to Compel Furthers Re: Request for Production of Documents (i.e., as to Wiesner)
Legal Standard
[T]he demanding party may move for an order compelling further response to the demand if the demanding party deems that. . . (1) A statement of compliance with the demand is incomplete[,] (2) A representation of inability to comply is inadequate, incomplete, or evasive [and/or that] (3) An objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).)
The moving party must demonstrate a reasonable and good faith attempt at an informal resolution of each issue presented. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute. (Code Civ. Proc., § 2031.310, subd. (b)(3).)
A motion to compel further responses to a demand for inspection or production of documents must set forth specific facts showing good cause justifying the discovery sought by the demand. (Code Civ. Proc., § 2031.310, subd. (b)(1).)
Notice of the motion must be provided 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 demanding party and the responding party have agreed in writing . . . (Code Civ. Proc., § 2030.310, subd. (c).)
[T]he court shall impose a monetary sanction. . . 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
Plaintiff moves the court for an order compelling Wiesner to provide further supplemental responses, without objections, and responsive documents to Plaintiffs Request for Production of Documents, Set No. One (i.e., Nos. 25 and 26). Plaintiff also seeks sanctions against Wiesner in the amount of $3,970.00. Plaintiffs counsel Greg K. Hafif (Hafif) represents as follows: On September 20, 2023, the subject discovery was served. (Hafif Decl., ¶ 2, Exh. A.) On November 6, 2023, Wiesner served responses. (
Id.
, ¶ 3, Exh. B.)
On December 7, 2023, Hafif asked Weisners counsel Chris Hellmich (Hellmich), for a 4-week extension to file any needed motion to compel furthers, to which Hellmich agreed. (
Id.
, ¶ 7, Exh. C.) On January 9, 2024, counsel agreed to another extension of the motion deadline, through January 31, 2024. (
Id.
, ¶ 3, Exh. D.) On January 29, 2024, counsel agreed to a third extension of the motion deadline, until the end of February 2024. (
Id.
, ¶ 9, Exh. E). The court required that an Informal Discovery Conference (IDC) be held before the instant motion could be filed. (
Id.
, ¶ 13). On March 4, 2024, Morell provided supplemental responses to Requests Nos. 25 and 26, which did not cure the deficiencies noted in the original responses. (
Id.
, ¶ 14, Exh. F) The IDC was held on March 25, 2023, but did not resolve the issues. (
Id.
, ¶ 16).
Request No. 25 asks for all emails and text messages between Wiesner and Morrell from January 1, 2020 through December 31, 2023. Request No. 26 asks for all emails and texts between Wiesner and Jeff George (George).
Wiesner initially objected to No. 25 on the basis of work product, burden, privacy, relevancy and overbreadth and to No. 26 on the basis of attorney-client communication, work product, burden, equally available, privacy and relevance. Both responses stated, [d]iscovery is continuing and Plaintiff reserves the right to supplement and/or amend her response to this request at any time. Wiesners response to No. 26 further stated that Mr. George is the former attorney for the Club and, as such, all such documents are already within the Clubs possession.
Wiesners supplemental response to No. 25 advised that he lacked the ability to comply with the request for emails because he no longer had access to the Club email account he would have used for official Club business. Wiesner advised, with respect to the request for texts, that he would make his personal cell phone available for inspection and copying of relevant text messages to Plaintiffs counsel at Plaintiffs counsels office pursuant to Code of Civil Procedure § 2031.220.
Wiesners supplemental response to No. 26 advised that he lacked the ability to comply with the request because he no longer had access to the Club email account he would have used for official Club business. Wiesner also advised that Plaintiff had the ability to recover any responsive emails from George, inasmuch as George was counsel to Plaintiff.
Hellmich, in his declaration accompanying Wiesners opposition, represents that Wiesner has since provided second supplemental responses. (Hellmich Decl., ¶ 13, Exh. 3.) Hellmich further represents that he and Wiesner have reviewed the texts contained in Weisners personal cell phone and identified approximately 700 text messages, which have since been exported to an Excel spreadsheet, that they are nearly all irrelevant because they are personal messages unrelated to the subject of the litigation, that the vast majority of the messages pertain to Defendants new soccer team and the minor girls on it and, as such, are irrelevant and implicate third party privacy rights, that 8 messages pertain to this lawsuit but are protected by the Defendants common interest agreement and that Wiesner has reserved a June 11, 2024 hearing regarding a motion for leave to file text messages under seal and to request an
in camera
review. (
Id.
, ¶¶ 8-11). With respect to the issue of emails, Wiesner contends that any responsive communications would be contained in a Club account that he can no longer access and that Plaintiff has access to same. (Opp., 7:12-15).
[1]
The motion is granted as to Nos. 25 and 26 (i.e., as to the request for emails), to the extent that the court orders Wiesner to provide a further response furnishing his username and password for the Club email account Wiesner used for official Club business. Wiesner is also ordered to provide a further response clarifying his statement made in his second supplemental response as to text messages (i.e., that Subject to and without waiving Defendants prior objections, after a diligent search and a reasonable inquiry has been made in an effort to comply with this Request, the Defendant lacks the ability to comply with the request because to the extent any responsive documents existed and were in the Defendants possession, he is no longer in the possession, custody or control of the items as he does not have possession, custody or control over any text messages with Mr. George. Indeed, Mr. Georges contact information does not even appear in
the Defendants IPhone Contact list), Wiesner must provide a response compliant with Code of Civil Procedure § 2031.230 (i.e., specifying the reason for the inability to comply).
The motion is otherwise granted as to No. 25 (i.e., as to the request for text messages); however, the court believes that Wiesners objections regarding relevancy and overbreadth are well-taken and limit any further response and production to documents regarding Morrells and Wiesners communications regarding Club activities or business. The court determines that any third-party privacy concerns may be addressed via redaction.
The court notes that Wiesner did, in fact, assert a work product objection in his initial response to No. 25; however, it is unclear to the court how communications between two co-defendants would implicate the attorney work product doctrine, defined as [a] writing that reflects an attorneys impressions, conclusions, opinions, or legal research or theories. (
See
Code Civ. Proc., § 2018.030.). Although Wiesner claims that the aforesaid texts are protected by a common interest doctrine, a party seeking to rely on the common interest doctrine does not satisfy its burden to justify a claim of privilege simply by demonstrating that a confidential communication took place between parties who purportedly share a common interest. Rather, the party seeking to invoke the doctrine must first establish that the communicated information would otherwise be protected from disclosure by a claim of privilege. (
OXY Resources California LLC v. Superior Court
(2004) 115 Cal.App.4th 874, 890.) [T]he common interest doctrine cannot be invoked unless there is an underlying claim of privilege. (
Id.
at 893). Wiesner has not satisfied his burden.
Wiesner is ordered
to provide further, Code-compliant responses, subject to the above limitations, within 20 days from the date of the notice of ruling.
Sanctions
Again, Plaintiff seeks sanctions against Weisner in the amount of $3,970.00 [calculated as follows: 0.5 hours reviewing motion, plus 0.5 hours reviewing opposition, plus 1 hour attending hearing at $425.00/hour, plus 5.2 hours preparing motion and 2 hours reviewing opposition and preparing reply at $425.00/hour, plus $60.00 filing fee]. Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorneys fees and costs incurred for the work performed in connection with the pending motion is $1,110.00 (i.e., 3 hours at $350.00/hour, plus $60.00 filing fee). Sanctions are payable within 30 days from the date of the notice of ruling.
2.
Motion to Compel Furthers Re: Request for Production of Documents (i.e., as to Morrell)
Legal Standard
See Motion #1.
Discussion
Plaintiff moves the court for an order compelling Morrell to provide further supplemental responses, without objections, and responsive documents to Plaintiffs Request for Production of Documents, Set No. One (i.e., Nos. 3, 16, 24-26 and 28). Plaintiff also seeks sanctions against Morrell in the amount of $3,842.50. Hafif represents as follows: On September 20, 2023, the subject discovery was served. (Hafif Decl., ¶ 2, Exh. A.) On February 2, 2024, Morrell provided responses. (
Id.
, ¶ 3, Exh. B.) Hafif met and conferred with Morrells counsel Scott Doonan (Doonan), but Doonan did not agree to provide any further responses or to produce responsive documents. (
Id.
, ¶ 23). The court required that an IDC be held before the instant motion could be filed. (
Id.
, ¶ 25). The IDC was held on March 25, 2023, but did not resolve the issues. (
Id.
, ¶ 26).
Request No. 3 asks for all documents that show who Desiree Ashcrft (Ashcrft) is and why she received certain payments on 10/01/2021, 10/04/2021, 11/01/2021 and 11/03/2021.
Morrells response to Request No. 3 was that, after
a reasonable and diligent search, he was unable to comply with this request in whole, that he was not in possession, custody or control of any documents responsive to this request and believed Plaintiff was in possession, custody and/or control of responsive documents, that all entries to Ashcrft were for payments for the purchase of field lights and that Morrell believed that Ashcrft was previously contacted by a member of Plaintiff after the current administration of Plaintiff took over.
Plaintiff is entitled to a further response to Request No. 3. Code of Civil Procedure § 2031.230 requires that a representation of inability to comply with a demand also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. Morrells inclusion of the phrase in whole is not problematic to the court for this instant response, since he provided substantive information identifying Ashcrft.
Request No. 16 asks for all documents that show why Elite Group Investments, LLC (Elite Group) received certain identified payments between 09/01/2020 and 12/29/2022.
Request No. 24 asks for all bank statements for Elite Group from January 1, 2020 to the present.
Request No. 25 asks for all emails and text messages between Wiesner and Morrell from January 1, 2020 through December 31, 2023.
Request No. 26 asks for all emails and texts between Morrell and George.
Request No. 28 asks for any documents that show the username, password and any other login credentials for the Club Quickbooks account.
Morrells response to Requests Nos. 16, 24-26 and 28 was that, after
a reasonable and diligent search, he was unable to comply with this request in whole, that he was not in possession, custody or control of any documents responsive to this request and believed Plaintiff was in possession, custody and/or control of responsive documents. Again, Plaintiff is entitled to further responses to Requests Nos. 16, 24-26 and 28, for the same reasons identified as to Request No. 3.
Additionally, Morrells inclusion of the phrase in whole suggests that Morrell is at least able to comply in part with the request.
The motion, then, is granted. Morrell is ordered
to provide further, Code-compliant responses within 20 days from the date of the notice of ruling.
Sanctions
Morrells request for sanctions is summarily denied. Again, Plaintiff seeks sanctions against Morrell in the amount of $3,842.50
[calculated as follows: 4.4 hours preparing motion, plus 2 hours reviewing opposition and preparing reply at $425/hour, plus 1 hour preparing part of separate statement and reviewing motion, plus 0.5 hours reviewing opposition and 1 hour attending hearing at $425/hour, plus $60 filing fee].
Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorneys fees and costs incurred for the work performed in connection with the pending motion is $1,460.00 (i.e., 4 hours at $350.00/hour, plus $60.00 filing fee). Sanctions are payable within 30 days from the date of the notice of ruling.
3.
Motion to File Documents Under Seal
Legal Standard
California Rules of Court Rules 2.550 and 2.551 apply to records sealed or proposed to be sealed by court order. (Cal. Rules of Court, rule 2.550(a)(1).)
These rules do not apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings. However, the rules do apply to discovery materials that are used at trial or submitted as a basis for adjudication of matters other than discovery motions or proceedings.
(Cal. Rules of Court, rule 2.550(a)(3).)
Discussion
Wiesner moves the court for leave to file an Excel spreadsheet containing approximately 700 text communications between Morell and Wiesner (the Texts) under seal and for an in camera review.
Evidentiary Objections
The court rules on Plaintiffs objections to the Hellmich declaration as follows: Overruled.
[2]
Merits
California Rules of Cout rules 2.550 and 2.551 are not applicable in the context of a discovery dispute. (See
Cal. Rules of Court, rule 2.550(a)(3).) Wiesners motion is summarily denied on this basis.
[1]
Plaintiff, in turn, asserts that it does not have Weisners username and password for Weisners Club account. (Reply, 3:16-18).
[2]
Hellmich has attested, in his declaration supporting Wiesners opposition to Motion #1, that he and Wiesner reviewed the voluminous number of texts contained in Wiesners personal cell phone and identified approximately 700 text messages. (Hellmich Decl., ¶ 8). Hellmans supporting declaration states that he has personal knowledge of the facts set forth therein.
Ruling
FARRARA, ET AL VS. AIRBNB, INC.
Jul 17, 2024 |
CVCV21-0198447
FARRARA, ET AL VS. AIRBNB, INC.
Case Number: CVCV21-0198447
Tentative Ruling on Petition to Approve Minor Compromise: Brianna Farrara seeks an order
approving the compromise of a claim on behalf of her minor son, Alexander Farrara. California
Rules of Court, Rule 7.950 states that a petition for court approval of a minor’s compromise must
contain a full disclosure of all information that has any bearing upon the reasonableness of the
compromise. The Petition provides the required information. Considering the nature of the
minor’s injuries and level of recovery and the uncertainty of liability, the Court is prepared to find
that the settlement is in the best interest of the minor if the voir dire process is completed to the
Court’s satisfaction.
The Court notes this is not an expedited petition brought on Judicial Council Form MC-350EX.
See CRC Rule 7.950.5. Hearing is thus needed on the Petition before it can be approved. The
person seeking approval of the settlement on behalf of the minor and the minor are required to
appear at the hearing, unless good cause is presented for their non-appearance. CRC Rule 7.952.
The Petitioner and minor are required to appear. Counsel will voir dire the Petitioner about the
terms of the settlement, any other potential sources to increase the settlement amount, whether the
minor has fully recovered and whether the Petitioner understands that once approved, the
settlement is final and binding on the minor. Once satisfied, the Court intends to grant the Petition
and set this matter for review for confirmation of deposit of the funds into a court blocked account.
An appearance by the Petitioner and minor is necessary on today’s calendar.
Ruling
ASCOT SPECIALTY INSURANCE COMPANY VS UNITED AERONAUTICAL CORPORATION, A CALIFORNIA CORPORATION, ET AL.
Jul 19, 2024 |
23BBCV02210
Case Number:
23BBCV02210
Hearing Date:
July 19, 2024
Dept:
NCB
Superior Court of California
County of Los Angeles
North Central District
Department B
ascot underwriting ltd.
,
Plaintiffs,
v.
united aeronautical corporation
,
et al.
,
Defendants.
Case No.:
23BBCV02210
Hearing Date:
July 19, 2024
[
TENTATIVE] order RE:
motion to be relieved as counsel
Defense counsel, William D. Koehler, Esq. (Counsel), moves to be relieved as counsel for Defendant Norton Sales, Inc. (Defendant).
Counsel filed this instant motion to be relieved as counsel on June 13, 2024.
Counsel has filed the requisite forms pursuant to CRC Rule 3.1362.
According to the declaration of Counsel, Counsel seeks to be relieved as counsel because Carlos Guzman, President of Norton Sales, Inc., requested that Counsel filed this motion and Mr. Guzman has consented to Counsel being relieved as counsel of record.
(MC-052, §2.)
Mr. Guzman also provides his declaration stating that there are 3 pending actions stemming from a wrongful death lawsuit to which his company had minimal involvement and his company can no longer afford the financial burden or retaining Counsel.
(Guzman Decl., ¶¶2-3.)
He states his understanding that a corporation cannot represent itself.
(
Id.
, ¶4.)
For these reasons, Counsel seeks to withdraw from representing Defendant in this action.
Counsel properly served Defendant at its last known mailing address, which was confirmed by telephone and conversation within the past 30 days of filing the motion.
As for future hearing dates, a Status Conference re: Private Mediation is set for September 12, 2024; a Final Status Conference is set for October 31, 2024; and the Jury Trial is set for November 12, 2024.
Thus, there is sufficient time for Defendant to obtain substitute counsel.
Accordingly, the motion to be relieved as counsel is granted.
The order electronically lodged by Counsel will be signed at the hearing.
The order will become effective upon the filing of a proof of service of a signed copy of the order on Defendant.
In addition, as Defendant Norton Sales, Inc. is a corporate entity, it cannot represent itself in
propria persona
.
(See
Rogers v. Municipal Court
(1988) 197 Cal.App.3d 1314, 1318.)
Thus, the Court will set an Order to Show Cause re Status of Representation of Defendant Norton Sales, Inc. for September 12, 2024 at 8:30 a.m.
Notice to be provided by Counsel.
DATED: July 19, 2024
___________________________
John J. Kralik
Judge of the Superior Court
Ruling
ARMENUHI SETAGHYAN, ET AL. VS KENNETH ROBERT STORTI
Jul 17, 2024 |
22STCV02484
Case Number:
22STCV02484
Hearing Date:
July 17, 2024
Dept:
28
Having considered the petitioning papers, the Court rules as follows.
BACKGROUND
On January 21, 2022, Plaintiff
s Armenuhi
Setaghyan, Mane Moradian,
a minor, by and through guardian ad litem Armenuhi Setaghyan, and Evette Moradian, a minor, by and through guardian ad litem Armenuhi Setaghyan, filed this action against Defendants Kenneth Robert Storti (Defendant) and Does 1-10 for motor vehicle tort, general negligence, and negligence per se.
On January 27, 2022, the Court appointed
Armenuhi Setaghyan to serve as guardian ad litem for Plaintiff Mane Moradian.
On October 26, 2022, the Court appointed Armenuhi Setaghyan to serve as guardian ad litem for Plaintiff Evette Moradian.
On December 6, 2022, Defendant filed an answer.
On November 28, 2023, Plaintiffs filed a notice of settlement.
On July 11, 2024, Petitioner
Armenuhi Setaghyan
(Petitioner) filed a petition for expedited approval of the compromise of minor Plaintiff
Evette Moradian
s action.
(Plaintiff Mane Moradian is no longer a minor.)
PETITIONERS REQUESTS
Petitioner asks the Court for expedited approval of the compromise of minor Plaintiff Evette Moradian's action.
DISCUSSION
The petition states that the gross settlement amount is $5,000.00.
Of this amount, $1,250.00 is to be paid or reimbursed to a medical provider and $1,250.00 will be paid to Plaintiffs counsel as attorneys fees, leaving a net settlement amount of $2,500.00.
The Court grants the petition.
At Petitioners request,
the net settlement amount of $2,500.00 will be deposited in an insured, blocked account at Wells Fargo N.A., Wilson/Glendale Branch, 611 E. Wilson Avenue, Glendale, California 91206, (818) 545-9289,
subject to withdrawal only on authorization of the Court.
CONCLUSION
The Court GRANTS the petition to approve the compromise of minor Plaintiff Evette Moradians action filed by Petitioner Armenuhi Setaghyan on July 11, 2024. The Court orders that the net settlement amount of $2,500.00 be deposited in an insured, blocked account at Wells Fargo N.A., Wilson/Glendale Branch, 611 E. Wilson Avenue, Glendale, California 91206, (818) 545-9289, for minor Plaintiff Evette Moradians benefit, subject to withdrawal only on authorization of the Court.
The Court sets an OSC Re: Distribution of Net Settlement on September 18, 2024, at 8:30 a.m., in Department 28 of the Spring Street Courthouse.
The Court sets an OSC Re: Dismissal of Case (Settlement) on September 18, 2024, at 8:30 a.m., in Department 28 of the Spring Street Courthouse.
Petitioner is ordered to give notice of this ruling.
Petitioner is ordered to file the proof of service of this ruling with the Court within five days.
Ruling
FRANKIE ANTHONY VILLAESCUSA VS CITY OF BELLFLOWER, A PUBLIC ENTITY, ET AL.
Jul 16, 2024 |
22STCV21184
Case Number:
22STCV21184
Hearing Date:
July 16, 2024
Dept:
C
Rankie Anthony Villaescusa vs City of Bellflower, et al.
Case No.: 22STCV21184
Hearing Date: July 16, 2024 @ 9:30 a.m.
#4
Tentative Ruling
Defendant County of Los Angeles Motion for Judgment on the Pleading is GRANTED with 30 days leave to amend.
Defendant to give notice.
Defendant County of Los Angeles moves for an order granting judgment on the pleadings as to the second cause of action for negligence and the third cause of action for negligent hiring, training, and supervision on the grounds that Plaintiff has failed to meet the heightened pleading standard in actions involving public entities under the Tort Claims Act.
Background
The operative Complaint by Plaintiff FRANKIE ANTHONY VILLAESCUSA (Plaintiff) was filed on June 29, 2022. Plaintiff alleges that [t]his Complaint concerns an officer and/or deputy-involved incident&. On or about May 25, 2021, Plaintiff& was approached, questioned, detained and escorted by Defendant JOHN DOE&. Defendant JOHN DOE negligently assessed the circumstances presented to him, and violently confronted and unjustifiably detained Plaintiff without probable cause or reasonable suspicion that Plaintiff had committed a crime or would commit a crime. Without warning, the Defendant JOHN DOE detained and escorted Plaintiff with such force that Plaintiff suffered severe injuries as a direct and proximate result of being detained and/or escorted. (Complaint, ¶ 11.)
Plaintiffs Complaint asserts the following causes of action: (1) Battery Civil Code §43; (2) Negligence Cal. Gov. Code §§850.2(a), 820(a); (3) Negligent Hiring, Training, and Supervision (Cal. Gov. Code §§815.2(a), 820(a); and (4) Intentional Infliction of Emotional Distress. On February 23, 2023, this Court SUSTAINED a demurrer as to the first and fourth causes of action with 30 days leave to amend. (See February 23, 2023 Minute Order.) Plaintiff did not amend the complaint within the time allowed and failed to provide an adequate explanation for the failure to do so; therefore, the first and fourth causes of action were dismissed on Defendants motion. (See November 9, 2023 Minute Order.)
Legal Standard
A defendant may bring a statutory motion for judgment on the pleadings where the court has no jurisdiction over the subject of the cause of action alleged in the complaint or the complaint does not state facts sufficient to constitute a cause of action against that defendant. (C.C.P. § 438(c)(1)(B).) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (
Stoops v. Abbassi
(2002) 100 Cal.App.4th 644, 650.) Such motion may be made on the same ground as those supporting a general demurrer, i.e., that the pleading at issue fails to state facts sufficient to constitute a legally cognizable claim or defense. (
Id
.)
In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action. (
Gami v. Mullikin Medical Ctr.
(1993) 18 Cal.App.4th 870, 876.)
Public entities cannot be liable for common law theories of general negligence. (
Miklosy v. Regents of University of California
(2008) 44 Cal.4th 876, 899 [section 815 abolishes common law tort liability for public entities].) Therefore, liability against a public entity must be authorized by statute. (
Eastburn v. Regional Fire Protection Authority
(2003) 31 Cal.4th 1175, 1179; Gov. Code, § 815, subd. (a) [A public entity is not liable for an injury . . . except as otherwise provided by statute].) Ordinarily, negligence may be pleaded in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the breach of duty. [Citation]. However, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity. (
Lopez v. Southern Cal. Rapid Transit Dist.
(1985) 40 Cal.3d 780, 795.)
Government Code section 815.2, subdivision (a) provides that a public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. (Gov. Code, § 815.2, subd. (a).)
Meet and Confer
Plaintiff argues that the motion should be denied because Defendant failed to meet and confer before filing the motion as required by statute. (CCP § 439, subd. (a).)
The Court will exercise its discretion to adjudicate the motion on the merits.
Discussion
The second and third causes of action suffer from the same infirmities as the first and fourth causes of action which have been dismissed.
The conclusory allegations in the Complaint are insufficient to establish specific conduct by any County employees to meet the heightened pleading requirements that are required for claims against a public entity.
The Complaint fails to allege what Defendant John Doe did to cause Plaintiffs injuries.
The Complaint alleges Defendant JOHN DOE detained and escorted Plaintiff with such force that Plaintiff suffered severe injuries as a direct and proximate result of being detained and/or escorted. (Complaint, ¶ 11.) Police detain many people each day throughout Los Angeles County.
Plaintiff fails to allege why this particular detention should give rise to liability.
As pled, the allegations are insufficient to impose liability against the County pursuant to Gov. Code §815.2.
Accordingly, Defendants Motion for Judgment on the Pleadings as to the second and third causes of action is GRANTED with 30 days leave to amend.
Ruling
CRUSADER INSURANCE COMPANY VS JOSHUA CANALES
Jul 18, 2024 |
23STCV01756
Case Number:
23STCV01756
Hearing Date:
July 18, 2024
Dept:
28
Having considered the documents submitted in support of the request for default judgment, the Court rules as follows.
BACKGROUND
On January 26, 2023, Plaintiff
Crusader Insurance Company
(Plaintiff) filed this action against Defendants Joshua Canales (Defendant) and Does 1-20 for motor vehicle tort.
The complaint demanded $49,966.21.
Also on January 26, 2023, Plaintiff filed a statement of damages asserting $49,966.21 in property damages.
On February 28, 2023, Plaintiff filed a proof of service showing substituted service of the summons and complaint, statement of damages, and other documents on Defendant on February 20, 2023.
On July 9, 2024, Plaintiff filed a statement of damages asserting $49,966.21 in property damages.
On July 9, 2024, the clerk entered Defendants default.
On July 9, 2024, Plaintiff filed a request for Court judgment to be heard on July 18, 2024.
On July 11, 2024, the Court dismissed the Doe defendants without prejudice at Plaintiffs request.
PLAINTIFFS REQUEST
Plaintiff Crusader Insurance Company asks the Court to enter a default judgment against Defendant Joshua Canales and award Plaintiff $50,485.21, consisting of $49,966.21 as the demand of the complaint and $519.00 in costs.
LEGAL STANDARD
A.
Default judgment
[With exceptions that do not apply here,] [a] party seeking a default judgment on declarations must use mandatory Request for Entry of Default (Application to Enter Default) (form CIV-100) . . . The following must be included in the documents filed with the clerk:
(1)
Except in unlawful detainer cases, a brief summary of the case identifying the parties and the nature of plaintiff's claim;
(2)
Declarations or other admissible evidence in support of the judgment requested;
(3)
Interest computations as necessary;
(4)
A memorandum of costs and disbursements;
(5)
A declaration of nonmilitary status for each defendant against whom judgment is sought;
(6)
A proposed form of judgment;
(7)
A dismissal of all parties against whom judgment is not sought or an application for separate judgment against specified parties under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment;
(8)
Exhibits as necessary; and
(9)
A request for attorney fees if allowed by statute or by the agreement of the parties.
(Cal. Rules of Court, rule
3.1800(a).)
B.
Damages
On a request for default judgment, [w]here a cause of action is stated in the complaint, plaintiff merely needs to introduce evidence establishing a prima facie case for damages.
(L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 5:213.1, p. 5-56 (Cal. Practice Guide), citing
Johnson v. Stanhiser
(1999) 72 Cal.App.4th 357, 361 [trial court erred in applying preponderance of the evidence standard].)
The relief granted to a plaintiff upon entry of a defendant's default cannot exceed the amount demanded in the complaint or, for personal injury cases where damages may not be stated in the complaint, the amount listed in the statement of damages. (Code Civ. Proc., §§ 580, subd. (a), 585, subd. (b).) The notice requirement of section 580 was designed to insure fundamental fairness. (
Becker v. S.P.V. Construction Co
. (1980) 27 Cal.3d 489, 494.) The statute insures that defendants in cases which involve a default judgment have adequate notice of the judgments that may be taken against them. [Citation.] If a judgment other than that which is demanded is taken against him, [the defendant] has been deprived of his day in courta right to a hearing on the matter adjudicated. (
Id
. at p. 493.) A trial court exceeds its jurisdiction if it awards damages in excess of the amount specified in the complaint or statement of damages. (
Id
. at p. 494.)
DISCUSSION
Plaintiff has submitted a complete default judgment application with all required information.
The Court grants the application.
CONCLUSION
The Court GRANTS
Plaintiff
Crusader Insurance Company
s
application for default judgment filed on July 9, 2024.
The Court awards Plaintiff Crusader Insurance Company $50,485.21 against Defendant Joshua Canales.
Plaintiff is ordered to give notice of this ruling.