MOVING PARTY: Plaintiff Dorothy Phillips
RESPONDING PARTY: None
Motion to Continue Trial Date
The court considered the motion papers.
On December 30, 2016, plaintiff Dorothy Phillips filed a complaint against defendants Terminix International, Inc. and Jeffrey Guliex for negligence and premises liability based on a slip and fall that occurred on May 14, 2015.
Trial is set for July 2, 2018.
Pursuant to CRC Rule 3.1332(a), “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial
as certain.” Under CRC Rule 3.1332(b), “A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.”
Under CRC Rule 3.1332(c), “[a]lthough continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may include good cause include:
(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;
(2) The unavailability of a party because of death, illness, or other excusable circumstances;
(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;
(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;
(5) The addition of a new party if:
(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or
(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;
(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or
(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.”
CRC Rule 3.1332(d) sets forth other factors that are relevant in determining whether to grant a continuance.
Plaintiff Phillips requests that the court continue the July 2, 2018 trial date to April 15, 2019.
Plaintiff contends that defendants have not been served but that defendants’ insurance carrier has recently agreed to mediate the case. The first mediation session is scheduled for June 5, 2018. Plaintiff anticipates that the mediation will take several sessions; however, in the meantime, plaintiff’s counsel has agreed not to serve the summons and complaint in the hope that the matter can be resolved without incurring the costs of litigation and discovery.
The court finds that plaintiff has shown good cause.
The motion is therefore GRANTED.
The court orders that trial is continued from July 2, 2018 to April 15, 2019, at 8:30 a.m., in Department 4 at Spring Street courthouse. The Final Status Conference is continued from June 15, 2018 to April 1, 2019 at 10:00 a.m., in Department 4. Discovery cut-off (including expert witness exchange) and motion cut-off dates shall be based on the new trial date.
Plaintiff is ordered to give notice of this ruling.
IT IS SO ORDERED.
DATED: April 10, 2018
Dennis J. Landin
Judge of the Superior Court
Case Number: BC670807 Hearing Date: April 10, 2018 Dept: 93 MOVING PARTY: Defendant Norman TrentonRESPONDING PARTY: Plaintiff Donald KarrMotion for Protective Order Terminating or Limiting the Depositions of Defendant and His WifeThe court considered the moving, opposition, and reply papers.BACKGROUNDOn August 23, 2017, plaintiff Donald Karr filed a complaint against defendant Norman Trenton for motor vehicle negligence based on an incident that occurred on January 29, 2016.LEGAL STANDARDProtective orders may be granted on motion of the deponent or any party, or any third person who could be affected by the disclosure (e.g., a nonparty whose privacy would be impaired). CCP §2025.420(a). A formal noticed motion and hearing are always required. Aprotective order cannot be granted ex parte. St. Paul Fire & Marine Ins. Co. v. Superior Court (1984) 156 Cal. App. 3d 82, 85-86. The motion must be accompanied by a declaration stating facts showing a “reasonable and good faith attempt” to resolve the matter outside of court. CCP §2025.420(a).The burden is on the moving party to establish “good cause” for whatever relief is requested. Generally, a deponent seeking a protective order will be required to show that the burden, expense, or intrusiveness involved in the discovery procedure clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. Emerson Electric Co. v. Superior Court (1997) 16 Cal. 4th 1101, 1110. Such a showing is not necessary, however, where the moving party is “presumptively entitled to a protective order” – i.e., where a defendant is asked questions regarding his or her net worth in an action for punitive damages. Weil & Brown, Civil Procedure Before Trial, at 8:691.The court “shall” impose monetary sanctions against whichever party loses on the motion for protective order unless it finds that party acted “with substantial justification” or other circumstances render sanctions “unjust.” CCP §2025.420(d). Section 2025.420(d) applies “to any person,” whether a party or not, who moves unsuccessfully for a protective order. Thus, a nonparty who is denied a protective order is subject to sanctions. Brun v. Bailey (1994) 27 Cal. App. 4th 641, 658-659.DISCUSSIONDefendant requests a protective order terminating or limiting the depositions of himself and his wife, Patricia Trenton, including that the deposition not be taken at all, or that the deponent’s testimony be taken by written, instead of oral examination, or that the method of discovery be interrogatories to a party instead of an oral deposition.Defendant contends that he is 94 years old and his wife is 91 years old, and in declining health. Defendant contends that he has offered to admit liability for the underlying accident.Thus, defendant argues, the depositions will serve no legitimate purpose other than to cause unwarranted annoyance, embarrassment, and oppression, and could potentially harm their health.In opposition, plaintiff argues that defense counsel failed to meet and confer before filing the motion. Further, plaintiff asserts, plaintiff’s counsel does not seek to take lengthy depositions. Plaintiff’s counsel offered to make reasonable accommodations, including offering to break up the depositions over one hour periods and provides as many breaks as needed.The motion is DENIED WITHOUT PREJUDICE as to a protective order that defendant’s and his wife’s deposition not be taken, but the court will consider imposing reasonable accommodations, to be discussed at the hearing.Plaintiff’s request for sanctions is denied.Defendant is ordered to give notice of this ruling.IT IS SO ORDERED.DATED: April 10, 2018_____________________________Dennis J. LandinJudge of the Superior Court Case Number: BC682781 Hearing Date: April 10, 2018 Dept: 93 MOVING PARTY: Defendant Steven Jeria RESPONDING PARTY: Plaintiffs Jack Demirchian and Souseh Babomian Motion to Strike Punitive Damages The court considered the moving, opposition, and reply papers. BACKGROUND On November 8, 2017, plaintiffs Jack Demirchian and Souseh Babomian filed a complaint against defendant Steven Jaria for motor vehicle negligence based on an incident that occurred on November 10, 2016. LEGAL STANDARD The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP § 437. Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” The Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, found: “Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.” Indeed, “malice” is defined in Civil Code § 3294 to mean “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Civil Code § 3294(c)(1). As the Court noted in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, Section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful. The Court in College Hospital held further that “despicable conduct refers to circumstances that are base, vile, or contemptible.” Id. at 725 (citation omitted). A claim for punitive damages may not be based on conclusory allegations of oppression, fraud or malice, but instead must be based on factual allegations which support such a conclusion. See Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1041-1042 (Court of Appeal issued peremptory writ directing trial court to issue order striking plaintiff’s prayer for punitive damages because “[t]he sole basis for seeking punitive damages are . . . conclusory allegations” which were “devoid of any factual assertions supporting a conclusion [defendants] acted with oppression, fraud or malice”). DISCUSSION Defendant Steven Jeria requests that the court strike the prayer at item 5. " For appropriate punitive damages." In the complaint, plaintiff alleges that sometime prior to the accident, defendant voluntarily became intoxicated and knew from the time he began drinking that he would operate a motor vehicle while he was intoxicated and that with this state of knowledge and violation, defendant, did, in fact, become intoxicated. Defendant’s intoxication was willful, reckless and in conscious disregard for the safety of others and while in such a state, defendant willfully drove his car while in that condition in a willful, reckless and conscious disregard for the safety of others, despite the unreasonable safety hazard he was creating. Complaint, ¶9. As a result of defendant’s intoxication, defendant was convicted of driving under the influence (Vehicle Code §23152). Id., ¶10. Defendant argues that the allegations are insufficient to state a claim for punitive damages. Taylor v. Superior Court (1979) 24 Cal. 3d 890, is instructive with respect to this set of facts because plaintiff is alleging that defendant was intoxicated. The Court in Taylor fell short of holding that punitive damages are always appropriate in cases involving driving while intoxicated.¿ The Taylor Court noted, “we have concluded that the act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’ under §3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” Id. at 892.¿ In the subsequent decision of Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 89, the Court of Appeal held that driving while intoxicated does not always give rise to a claim for punitive damages: “[W]e do not agree that the risk created generally by one who becomes intoxicated and decides nevertheless to drive a vehicle on the public streets is the same as the risk created by an intoxicated driver’s decision to zigzag in and out of traffic at 65 miles per hour in a crowded beach recreation area at 1:30 in the afternoon on a Sunday in June. The risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable.” Significantly, both Taylor and Dawes were decided prior to 1987, at which time the Legislature added the requirement to Civil Code § 3294 that conduct be “despicable” in order to support imposition of punitive damages under a malice/willful and conscious disregard of the rights or safety of others standard. There has been no subsequent decision holding that drinking and driving, without aggravating circumstances that make injury probable, gives rise to a claim for punitive damages. The allegations are insufficient as to aggravating circumstances. Based upon the discussion set forth above, the court finds that the allegations are insufficient to support a claim for punitive damages. Defendant’s motion to strike is therefore GRANTED WITH 20 DAYS LEAVE TO AMEND. Defendant is ordered to give notice of this ruling. IT IS SO ORDERED. DATED: April 10, 2018 _____________________________ Dennis J. Landin Judge of the Superior Court Case Number: BC684912 Hearing Date: April 10, 2018 Dept: 93 Superior Court of California
County of Los Angeles – Central
park gale guest home
, et al.,
PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT
DEPARTMENT 93 OF THE PERSONAL INJURY (PI) COURT
HAS DETERMINED THAT THE ABOVE ENTITLED ACTION:
NOT A PERSONAL INJURY CASE, AS DEFINED IN THE COURT’S MOST RECENT GENERAL ORDER
RE: GENERAL JURISDICTION PERSONAL INJURY CASES.
DIRECTION OF DEPARTMENT 1, THIS CASE IS HEREBY:
TRANSFERRED FOR ALL PURPOSES TO JUDGE broadbelt_ IN DEPT. _B__,
THE SOUTHWEST DISTRICT.
PENDING MOTIONS OR HEARINGS, INCLUDING TRIAL OR STATUS CONFERENCE, WILL BE
RESET, CONTINUED OR VACATED AT THE DIRECTION OF THE NEWLY ASSIGNED IC COURT AT
PLAINTIFF SHALL GIVE NOTICE OF THE
DATED: April 10, 2018
J. LandinJudge of the
Superior Court Case Number: BS172618 Hearing Date: April 10, 2018 Dept: 93 HEARING CONTINUED TO APRIL 20, 2018, AT 1:30 PM IN DEPT. 4 AT SPRING STREET COURTHOUSE.