Preview
BREMER WHYTE BROWN & O'MEARA LLP
Keith G. Bremer, State Bar No. 155920
kbremer@bremerwhyte.corn
Alison K. Hurley, State
ahurley@bremerwhyte.corn
Nicole M. Slattery, State
Bar No.
Bar No.
234042
259969
FII
SAN MATEO COUNTY
KD
nslatteryibremerwhyte.corn
20320 S.W. Birch Street MAR 6 4 2016
Second Floor
Newport Beach, California 92660 OerIt f t, %2 ri Court
Telephone: (949) 221-1000
Facsimile: (949) 221-1001
Attorneys for Defendants,
CROWN BUILDINGMAINTENANCECO. dba ABLE
BUILDING MAINTENANCECO., and DALYCITY
SERRAMONTE CENTER, LLC
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
12
13 LUIS PAEZ, ) Case No. CIV 529263
)
14 Plaintiff, ) DALY CITY SKRRAMONTE CENTER,
) LLC'S NOTICE OF MOTION AND
15 V. ) MOTION TO (I) COMPEL RESPONSE
) TO ITS REQUEST FOR STATEMENT
16 EQUITY ONE, INC., and DOES 1 to 25, ) OF DAMAGES FROM PLAINTIFF AND
Inclusive. ) (2) REQUEST FOR MONETARY
I+'8 )
)
)
SANCTIONS
Date: April 4, 2016 0
AND RELATED CROSS-ACTION. ) Time: 9:00 a.m.
19 ) Dept: Law and Motion
t I I
I== 20 Complaint Filed: June 26, 2014
I Trial Date: April 18. 2016
21
22 NOTICE IS HEREBY GIVEN that on April 4, 2016 at 9:00 a.m., in the Law and Motion
23 Department of this Court, located at 400 County Center in Redwood City, California, Defendant
I
24 DALY CITY SERRAMONTE CENTER, LLC ("DCSC") will, and hereby does, move this Court
I
t
25 for an order compelling responses to its Request for Statement of Damages, served on Plaintiff
C 26 LUIS PAEZ on February 3, 2016. DCSC further requests monetary sanctions against Plaintiff and
C
27 his counsel. This motion is made pursuant to Code of Civil Procedure sections 425.11(b) and
t
28 2023.010 et sea., and is made on the grounds that Plaintiff failed to serve a timely response to
BREMER WHTTE BROWN &
0 MEARA LLP
20320 0 W BIRCH STREET
SECOND FLOOR
DALY CITY SERRAMONTE CENTER,
NEWPORT BCH. CA 02000 LLC'S MOTION TO COMPEL RESPONSE TO ITS REQUEST FOR
(IHS) 221-10M irArr-Mr-Mrnv nAMAf,vw
H:0695'1 I 49'ICI ETC - Simi of l3BIREScsiPAA.docx
I the exception of the medical expenses incurred by Plaintiff to date, it merely alleges the damages
2 will be made "according to proof." (Slattery Decl. $ 4, Exh. B.) Furthermore, Plaintiff had until
3 February 22, 2016 to respond to DCSC's Request for Statement of Damages, and failed to do so.
4 (Slattery Decl. at $ $ 6,10.) Plaintiff's counsel was clearly aware of the need to serve the response,
5 and confirmed inwriting that he would do so. (Slattery Decl. at $ 7, Exh. D.) Therefore, this Court
6 should compel Plaintiff to serve DCSC with the requested statement of damages. In light of the
7 upcoming April 18, 2016 trial date,DCSC requests that this Court order Plaintiff to comply within
8 five (5) days of hearing on this Motion.
2.2 This Court Must Imnose Sanctions. Absent Snecial Findings.
10 The Court has authority to impose sanctions on a party or attorney engaging in misuse of
11 the discovery process. (Code Civ. Proc. II 2023.030(a).) Failing to respond to an authorized
12 method of discovery is a sanctionable misuse of the discovery process under the Code. (Code Civ.
13 Proc. g 2023.010(d).)
14 Here, Plaintiff failed to respond to DCSC's Request for Statement of Damages as
15 authorized under Code of Civil Procedure section 425.11(b). (Slattery Decl. at $ 10.) DCSC's
16 counsel attempted to meet and confer with PlaintifFs counsel prior to filing this motion and even
17 offered to provide Plaintiff with an extension to respond to the request. (Slattery Decl. at f[ 9,Exh.
18 F.) However, Plaintiff still has not served a response. (Slattery Decl. at $ 10.) Plaintiff and his
19 counsel acted without substantial justification in failing to provide a timely (or indeed, any)
20 response to DCSC's request for a statement of damages. As such, monetary sanctions are
21 appropriate.
22 As a result of Plaintiff's failure to respond to DCSC's Request for Statement of Damages,
23 DCSC has and/or will necessarily incurred reasonable expenses in the amount of $ 2,247.50.
24 (Slattery Decl. at $$ 12-13.) Thus, DCSC requests that this Court order sanctions against Plaintiff
25 and its counsel in that amount.
26 ///
27 ///
28 ///
BREIIER WHYTE BROWN S
OlNEARA LLF
20220 S.W. B1RCH STREET 5
SECOND FLOOR
NEWPORT BCH. CA 02000DALY CITY SERRAMONTE CENTER, LLC'S MOTION TO COMPEL RESPONSE TO ITS REQUEST FOR
(SI0) 221 1000 STATPMPNT AF IlAMACPR
lR:t3695'tt 49$ CFWTC - Stmt
of Damages'&A.docx
1 3. CONCLUSION
For th'e reasons sei forth above, DCSC respectl'ully requests that the Court issue an order
3 compelling I'laintif'ftoserve a Statement of Damages. and that Plaintil 1'and its counsel be ordered
to pay tnonctary sanctions in the amount ol $ 2.247.50.
5 Dated: March 3.2016 I3I State of Calif'ornia. I am over the age of 18 and
not a paly to the within action. My business address is20320 S.W. Birch Street. Second Iloor,
Newport Beach. California 92660.
On March 4, 2016> I served the within document{s) described as:
DALY Cl 1Y SBIS NO I'ICE OF MOTION AND MO I'ION
'I 0 (1) COMP1-:L Rl='Sl'ONSl: '1
0 ITS I list.
9 X (BY MAII.) By placing a true copv of the foregoin<> document(s) in a sealed envelope
addressed as set foi1h on thc attached mailin<> list. I placed each such envelope f'r
10 collection and mailin<> f>oi]o~ving ordinary business practices. I am readily famHiar with this
Firm's practice I'or collection and processing of correspondence for mailing. I 'nder that
practice, the correspondence would be deposited with the United States Postal Service on
that same day, with posta<>e thereon lully prepaid at Newport Beach, Califo'gaia, in the
ordinary course of business. I am aware that nn motion of the party served. scrvicc is
presumed invalid if'postal cancellation date or postage meter date is morc than one day af'ier
date of'deposit for nlailing> in afftdavit.
Executed on March 4, 2016. at Newport Beach. California
I declare under penalty of'perjury under thc laws of the State of if rnia iat Yc
f>ore<>oing is true and correct.
16
17 Dcborah I Icrnandez
"
('I'ypc or print name) @Seat«ii '" TC SSRC."< SIRE>
SECCNC>LCCR
«CRT SCH, C«9>SSC
NS<6<
22>.1999
<949>
tl.'"695u49'j'l
Preview
BREMER WHYTE BROWN & O'MEARA LLP Keith G. Bremer, State Bar No. 155920 kbremer@bremerwhyte.corn Alison K. Hurley, State ahurley@bremerwhyte.corn Nicole M. Slattery, State Bar No. Bar No. 234042 259969 FII SAN MATEO COUNTY KD nslatteryibremerwhyte.corn 20320 S.W. Birch Street MAR 6 4 2016 Second Floor Newport Beach, California 92660 OerIt f t, %2 ri Court Telephone: (949) 221-1000 Facsimile: (949) 221-1001 Attorneys for Defendants, CROWN BUILDINGMAINTENANCECO. dba ABLE BUILDING MAINTENANCECO., and DALYCITY SERRAMONTE CENTER, LLC 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 12 13 LUIS PAEZ, ) Case No. CIV 529263 ) 14 Plaintiff, ) DALY CITY SKRRAMONTE CENTER, ) LLC'S NOTICE OF MOTION AND 15 V. ) MOTION TO (I) COMPEL RESPONSE ) TO ITS REQUEST FOR STATEMENT 16 EQUITY ONE, INC., and DOES 1 to 25, ) OF DAMAGES FROM PLAINTIFF AND Inclusive. ) (2) REQUEST FOR MONETARY I+'8 ) ) ) SANCTIONS Date: April 4, 2016 0 AND RELATED CROSS-ACTION. ) Time: 9:00 a.m. 19 ) Dept: Law and Motion t I I I== 20 Complaint Filed: June 26, 2014 I Trial Date: April 18. 2016 21 22 NOTICE IS HEREBY GIVEN that on April 4, 2016 at 9:00 a.m., in the Law and Motion 23 Department of this Court, located at 400 County Center in Redwood City, California, Defendant I 24 DALY CITY SERRAMONTE CENTER, LLC ("DCSC") will, and hereby does, move this Court I t 25 for an order compelling responses to its Request for Statement of Damages, served on Plaintiff C 26 LUIS PAEZ on February 3, 2016. DCSC further requests monetary sanctions against Plaintiff and C 27 his counsel. This motion is made pursuant to Code of Civil Procedure sections 425.11(b) and t 28 2023.010 et sea., and is made on the grounds that Plaintiff failed to serve a timely response to BREMER WHTTE BROWN & 0 MEARA LLP 20320 0 W BIRCH STREET SECOND FLOOR DALY CITY SERRAMONTE CENTER, NEWPORT BCH. CA 02000 LLC'S MOTION TO COMPEL RESPONSE TO ITS REQUEST FOR (IHS) 221-10M irArr-Mr-Mrnv nAMAf,vw H:0695'1 I 49'ICI ETC - Simi of l3BIREScsiPAA.docx I the exception of the medical expenses incurred by Plaintiff to date, it merely alleges the damages 2 will be made "according to proof." (Slattery Decl. $ 4, Exh. B.) Furthermore, Plaintiff had until 3 February 22, 2016 to respond to DCSC's Request for Statement of Damages, and failed to do so. 4 (Slattery Decl. at $ $ 6,10.) Plaintiff's counsel was clearly aware of the need to serve the response, 5 and confirmed inwriting that he would do so. (Slattery Decl. at $ 7, Exh. D.) Therefore, this Court 6 should compel Plaintiff to serve DCSC with the requested statement of damages. In light of the 7 upcoming April 18, 2016 trial date,DCSC requests that this Court order Plaintiff to comply within 8 five (5) days of hearing on this Motion. 2.2 This Court Must Imnose Sanctions. Absent Snecial Findings. 10 The Court has authority to impose sanctions on a party or attorney engaging in misuse of 11 the discovery process. (Code Civ. Proc. II 2023.030(a).) Failing to respond to an authorized 12 method of discovery is a sanctionable misuse of the discovery process under the Code. (Code Civ. 13 Proc. g 2023.010(d).) 14 Here, Plaintiff failed to respond to DCSC's Request for Statement of Damages as 15 authorized under Code of Civil Procedure section 425.11(b). (Slattery Decl. at $ 10.) DCSC's 16 counsel attempted to meet and confer with PlaintifFs counsel prior to filing this motion and even 17 offered to provide Plaintiff with an extension to respond to the request. (Slattery Decl. at f[ 9,Exh. 18 F.) However, Plaintiff still has not served a response. (Slattery Decl. at $ 10.) Plaintiff and his 19 counsel acted without substantial justification in failing to provide a timely (or indeed, any) 20 response to DCSC's request for a statement of damages. As such, monetary sanctions are 21 appropriate. 22 As a result of Plaintiff's failure to respond to DCSC's Request for Statement of Damages, 23 DCSC has and/or will necessarily incurred reasonable expenses in the amount of $ 2,247.50. 24 (Slattery Decl. at $$ 12-13.) Thus, DCSC requests that this Court order sanctions against Plaintiff 25 and its counsel in that amount. 26 /// 27 /// 28 /// BREIIER WHYTE BROWN S OlNEARA LLF 20220 S.W. B1RCH STREET 5 SECOND FLOOR NEWPORT BCH. CA 02000DALY CITY SERRAMONTE CENTER, LLC'S MOTION TO COMPEL RESPONSE TO ITS REQUEST FOR (SI0) 221 1000 STATPMPNT AF IlAMACPR lR:t3695'tt 49$ CFWTC - Stmt of Damages'&A.docx 1 3. CONCLUSION For th'e reasons sei forth above, DCSC respectl'ully requests that the Court issue an order 3 compelling I'laintif'ftoserve a Statement of Damages. and that Plaintil 1'and its counsel be ordered to pay tnonctary sanctions in the amount ol $ 2.247.50. 5 Dated: March 3.2016 I3I State of Calif'ornia. I am over the age of 18 and not a paly to the within action. My business address is20320 S.W. Birch Street. Second Iloor, Newport Beach. California 92660. On March 4, 2016> I served the within document{s) described as: DALY Cl 1Y SBIS NO I'ICE OF MOTION AND MO I'ION 'I 0 (1) COMP1-:L Rl='Sl'ONSl: '1 0 ITS I list. 9 X (BY MAII.) By placing a true copv of the foregoin<> document(s) in a sealed envelope addressed as set foi1h on thc attached mailin<> list. I placed each such envelope f'r 10 collection and mailin<> f>oi]o~ving ordinary business practices. I am readily famHiar with this Firm's practice I'or collection and processing of correspondence for mailing. I 'nder that practice, the correspondence would be deposited with the United States Postal Service on that same day, with posta<>e thereon lully prepaid at Newport Beach, Califo'gaia, in the ordinary course of business. I am aware that nn motion of the party served. scrvicc is presumed invalid if'postal cancellation date or postage meter date is morc than one day af'ier date of'deposit for nlailing> in afftdavit. Executed on March 4, 2016. at Newport Beach. California I declare under penalty of'perjury under thc laws of the State of if rnia iat Yc f>ore<>oing is true and correct. 16 17 Dcborah I Icrnandez " ('I'ypc or print name) @Seat«ii '" TC SSRC."< SIRE> SECCNC>LCCR «CRT SCH, C«9>SSC NS<6< 22>.1999 <949> tl.'"695u49'j'l