TENTATIVE RULINGS

 

DEPARTMENT N17

 

Judge Craig L. Griffin

 

Date: August 28, 2023

Time: 2:00PM

 

If you are submitting to the tentative, please call the Clerk at (657) 622-5617.

 

Appearances may be IN PERSON or through ZOOM.  If appearing by ZOOM, go to https://www.occourts.org/media-relations/civil.html and click on the yellow box that reads:  “CLICK HERE TO APPEAR FOR THE ONLINE CHECK-IN/ZOOM PILOT PROGRAM.”  Call the department with any questions.

 

COURT REPORTERS:  Official Court Reporters (i.e. Court Reporters employed by the Court) are NOT typically provided for law and motion matters in this department.  If a party desires a record of a law and motion proceeding, it will be the party’s responsibility to provide a court reporter.  Parties must comply with the Court’s policy on the use of privately retained court reporters which can be found at:

 

·       Civil Court Reporter Pooling; and

 

·       For additional information, please see the Court’s website at  Court Reporter Interpreter Services for additional information regarding the availability of Court Reporters.

 

PUBLIC ACCESS:  The public may attend the ZOOM session by telephone.  Call the department for a call-in number.

 

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Case Name

Tentative

1

Allen vs. Chopra

Plaintiff Deanna Lynn Allen’s (“Plaintiff”) unopposed Motion to Deem Requests for Admission, Set One (“RFA”), as Admitted (“Motion”) and for sanctions against defendant Palak Chopra (“Defendant”) is GRANTED in part and DENIED in part.

 

If a party fails to serve timely responses to RFA, then all objections are waived.  (Civ. Proc. Code § 2033.280(a).)  “The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction . . .”  (Civ. Proc. Code § 2033.280(b).) 

 

Monetary sanctions are mandatory against a party whose failure to serve a timely response to RFA necessitated a motion.  (Civ. Proc. Code § 2033.280(c); Civ. Proc. Code § 2023.010(d).)

 

Plaintiff appears to have served both the RFA and the Motion on Chopra at the address Chopra (in pro per) listed on his Answer to the First Amended Complaint.  Chopra did not serve any responses to the RFA and has not responded to the Motion. 

 

The Motion is GRANTED, and the RFA are hereby deemed admitted.

 

Pursuant to Civ. Proc. Code § 2033.280(c) and Civ. Proc. Code § 2023.010(d), the court also GRANTS the requested monetary sanctions, against Defendant and in favor of Plaintiff, in the reasonable amount of $1,192.50. 

 

Plaintiff requests terminating sanctions pursuant to Civ. Proc. Code § 2023.030(d).  In reviewing the totality of the circumstances, Chopra’s failure to respond to the first sets of written discovery requests is the first discovery abuse on the part of Chopra.  While the failure to respond may be willful, there is no history of abuse, nor is there any evidence at this time that less severe sanctions would not produce compliance with the discovery rules.  (Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390.)  Given discovery sanctions must be imposed in incrementally, it would not be appropriate for this court to jump to terminating sanctions at the first violation.  (Dep't of Forestry & Fire Prot. v. Howell (2017) 18 Cal. App. 5th 154, 191-92.) 

 

The request for terminating sanctions is DENIED.

 

Plaintiff to give notice.

2

Hausman vs. Zhu

Defendants Brian Zhu, Wei Hong. and Yang Zhu’s (“Defendants” together) Motion to Compel (“Motion”) independent medical examinations (“IME”) of plaintiff Isaac Hausman (“Plaintiff”) is GRANTED in part and DENIED in part.

 

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff.  (Civ. Proc. Code § 2032.220(a).)  A party seeking additional IME or a neuropsychological IME must move the court for an order requiring Plaintiff to appear.  (Civ. Proc. Code § 2032.310.)  “The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.”  (Civ. Proc. Code § 2032.320(a).)

 

Plaintiff previously underwent a physical IME with Luke Macyszyn, M.D. (“Macyszyn”), which focused solely on Plaintiff’s alleged spine injuries.  (Opposition, Ex. 5 at p. 1 ¶ 5.)  Defendants now seek a second physical IME with an Otolaryngologist to examine Plaintiff’s allegations of tinnitus, headaches, and hearing loss. The Motion notes Djalilian will be conducting specific examinations related to Plaintiff’s head, neck, cranial nerve, and tinnitus.  These exams do not appear to have been performed by Macyszyn.  Macyszyn’s findings also indicate his examination only pertained to an examination of the spine and that no other expert opinions would be offered.  (Opposition, Ex. 5 at p. 1 ¶ 5.)  While Macyszyn noted Plaintiff consulted with an ENT for his tinnitus, and while Macyszyn summarized some of Plaintiff’s medical records related to the ENT/audiology, Macyszyn did not actually perform any examination related to the tinnitus.  (Opposition, Ex. 5, pp 2 ¶ 5 and 10, 6 ¶ 1, 3 – 5.)

 

As Defendants’ Motion has indicated the tests Djalilian intends to perform and how they are necessary based on Plaintiff’s alleged injuries, the Motion complies with the code.  A separate statement in support of the Motion does not appear to be required under CRC Rule 3.1345(a)(6) as Plaintiff served no objection to the demands.

 

The Motion is GRANTED as to the physical IME with Djalilian.  The examination pertains to Plaintiff’s allegations of hearing loss, tinnitus, and headaches caused by tinnitus.  Djalilian is permitted to take Plaintiff’s history, examine Plaintiff’s head, neck, and cranial nerve, and perform audiometry testing, tinnitus matching, acoustic reflex testing, otoacoustic emissions, tympanometry, and auditory brainstem response testing.  The examination must not entail any procedures that are invasive or painful.  The examination is to occur at Djalilian’s office located at 101 City Drive S, Pavilion 2, 1st Floor, Orange, CA 92868.  Parties are to meet and confer on a date and time that will work for Plaintiff, party counsel, and Djalilian.  This IME must occur within 60-days of the hearing.

 

Defendants also request a neuropsychological IME with Manuel Saint Martin, M.D. (“Martin”).  The Motion states Martin is board certified in Psychiatry and Neurology,  Martin will conduct a neuropsychological examination.  This will include a clinical interview and the administration of standardized psychometric tests, including the Minnesota Multiphasic Personality Inventory Second Edition Restructured. Millon Clinical Multiaxial Inventory Fourth Edition, Wechsler Adult Intelligence Scale-IV, Trauma Symptoms Inventory Second Edition, Personality Assessment Inventory, Comprehension Trail-making Test Second Edition, Test of Non-Verbal Intelligence, B Test, Wechsler Memory Scale-IV, Test of Memory Malingering, Wisconsin Card Sorting Test, Test of Brief Attention, Neuropsychological Assessment Battery and Hopkins Verbal Learning Test.

 

“[A] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.” (.  (Vinson v. Superior Court (1981) 43 Cal.3d 833. 839.) “[T]he existence and extent of her mental injuries is indubitably in dispute. In addition, by asserting a causal link between her mental distress and defendants' conduct, plaintiff implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress.”  (Id., at 840.) 

 

The neuropsychological IME does not appear to be called for.  Plaintiff’s alleged injuries are post-concussive injuries, headaches, and tinnitus in addition to spinal issues.  (Goodman Decl., Ex. A.)  There are no allegations of psychological or emotional injuries.  While it is possible that certain “post-concussive injuries” may be treated by be neuropsychologists, several of the examinations intended to be performed by Martin relate to personality disorders, intelligence testing, and cognitive disorders, none of which have been put at issue by Plaintiff.  The headaches appear to be caused by the tinnitus, which would be covered under the ENT examination.  (Opposition, Ex. 5 at p. 2 ¶ 10 [“Mr. Hausman also voices tinnitus, which “creates headaches.”)]

 

As there is no evidence of Plaintiff claiming any mental or psychological injuries, Defendants have not put forth sufficient need for a neuropsychological examination with testing into Plaintiff’s emotion, mental, and intelligence.  The Motion is DENIED without prejudice as to the neuropsychological IME.

 

Plaintiff requests monetary sanctions on the Motion pursuant to Civ. Proc. Code §§ 2023.010 and 2023.030.  However, “monetary discovery sanctions may be imposed under section 2023.030 only to the extent authorized by another provision of the Discovery Act. Section 2023.010 describes conduct that is a misuse of the discovery process, but does not authorize the imposition of sanctions. The plain language of the statutory scheme does not provide for monetary  sanctions to be imposed based solely on the definitional provisions of sections 2023.010 or 2023.030, whether construed separately or together.”  (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 84 Cal. App. 5th 466, 475, 498, 500-02.)  As the court cannot award monetary sanctions based upon the two code sections cited, and as monetary sanctions are generally not warranted, the request is denied.

 

Defendants to give notice.

3

Locatelli v. Hotel California by the Sea LLC

The motion for attorneys fees by plaintiff Carol Locatelli and against defendant Hotel California by the Sea, LLC, (“Hotel”) is GRANTED in part.

 

Plaintiff was the prevailing party following a court trial as set forth in the judgment entered 1/11/23.  Plaintiff seeks recovery of attorney’s fees based on Government Code §12965.  “A trial court has discretion to award attorney's fees and costs to the party prevailing in a FEHA action. ‘In actions brought under this section, the court, in its discretion may award to the prevailing party reasonable attorney fees and costs....’ (Gov.Code, § 12965, subd. (b).) We review the trial court's failure to award attorney's fees under an abuse of discretion standard.”  (Steele v. Jensen Instrument Co. (1997) 59 Cal. App. 4th 326, 331)  Hotel does not contest the plaintiff’s right to recover fees under FEHA.

 

The Court has discretion as to determining reasonable hourly rate.  “The courts repeatedly have stated that the trial court is in the best position to value the services rendered by the attorneys in his or her courtroom (see, e.g., Ketchum v Moses (2001) 24 Cal.4th 1122, 1132), and this includes the determination of the hourly rate that will be used in the lodestar calculus. (See, e.g., Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 700–703.) In making its calculation, the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009), the difficulty or complexity of the litigation to which that skill was applied (Syers Properties at p. 700, 172 Cal.Rptr.3d 456), and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases. (Heritage, at p. 1009)” (569 E. Cnty. Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal. App. 5th 426, 436–37)  “The ‘experienced trial judge is the best judge of the value of professional services rendered in his court....’ ” (Serrano v. Priest (1977) 20 Cal.3d 25, 49)

 

Plaintiff’s motion is accompanied by a document itemizing the billing by 22 different timekeepers who are either attorneys or paralegals/legal assistants/law clerks/bookkeepers/reception.  Included on this document are the proposed billing rates for which plaintiff seeks recover in the subject motion.

 

The Court finds, based on its experience with other similar cases, familiarity with the legal market, knowledge of this litigation prior to trial and its involvement in the court trial, that the reasonable rates for reimbursement of attorney’s fees is $500 per hour for Mr. Elihu and $400 per hour for the other six attorneys.   This determination is also based in part on the declarations Mr. Moorhead previously submitted in this litigation in connection with a discovery motions.  For example, on 12/6/19 he stated that his hourly rate was $400 per hour  (ROA 32 at ¶11)  Mr. Moorhead also reiterated his billing rate of $400 in his 11/5/20 declaration. (ROA 218 at ¶25)   Mr. Moorhead states that although multiple lawyers have submitted time entries, he was the attorney assigned to do all of the work on the case and such supports the conclusion that $400 is a reasonable rate for the work performed in this case.  (Moorhead Decl. at ¶25)   The Court also notes inconsistencies between the declarations submitted in support of the subject motion and those previously submitted in connection with the discovery motions.  For example, while Mr. Moorhead told this court in 2019 that his billing rate was $400 per hour for preparing the discovery motion, in the detailed time sheet submitted by the plaintiff along with the subject motion, it shows the work done on the 2019 discovery motion but lists the billing rate at $650/hr. for drafting the motion.  With regard to the hourly rates charged by the 12 persons who generally were considered “paralegals,” the Court finds that $175/hr is the reasonable rate.

 

With regard to the amount of time submitted by the attorneys, based on the Court’s review of the itemized billing report submitted by Plaintiff, the Court awards fees based on 94% of the time spent by the seven attorneys.  Much of the 6% reduction is due to the fact that the entries reflect routine communications within the office regarding such items as scheduling or office processes.

 

For the three timekeepers with initials JTA, RAB and STN who are listed as “reception,” “accounting” and “legal assistant,” respectively, the tasks performed appear to be entirely administrative and therefore the motion to recover for their time in the total amount of $1,509.70 is DENIED. 

 

For the other 12 “paralegals,” the Court finds that 33.2% of the time spent related to administrative tasks.  It is apparent from the billing entries that “paralegals” were often used to perform tasks of a legal assistant or scheduler.  Many of the entries are not legal in nature but are more in the form of support for the attorney such as contacting a reporter to schedule a depo or obtain the depo transcripts, calendaring, filing documents with the court, preparing the POS on discovery, uploading documents to firm’s system, sending  copies of documents within the firm, reminders of upcoming dates, etc. 

 

Based on the foregoing, the recoverable attorneys fees are $182,942.80. [$183,720 (Mr. Moorhead and the 5 attorneys) + $10,900 (Mr. Elihu) = $194,620; $194,620 x .94 (to reflect 6% reduction) = $182,942.80.]

 

Based on the foregoing, the recoverable attorney’s fees for the 12 “paralegals” are $44,339.75  (253.37 hrs. x $175/hr)

 

This makes a total recoverable attorney’s fees of $227,282.55, before the offsets discussed below.

 

Plaintiff’s recovery of attorney’s fees will be offset by $5,687 which represents the amounts that plaintiff has not yet paid in sanctions imposed against her in connection with the (1) Defendant’s Motion to Quash Subpoena to Cigna and (2) Defendant’s Motion to Compel Plaintiff to Sign Authorization re Cornerstone. (ROA 449)

 

Plaintiff’s recovery of attorney’s fees will be further offset by $12,108.57 which reflects the sanctions Hotel has previously paid to plaintiff in connection with discovery motions.  (See Minute Orders showing the following sanctions against Hotel and in favor of Plaintiff of $3,608.57 (Exh. B to RJN) and $8,500 (Exh F to RJN).)

 

Accordingly, the Court GRANTs the plaintiff’s motion for attorneys fees in the total amount of $209,486.98.

 

The Court DENIES plaintiff’s request for a lodestar multiplier. 

 

Hotel’s request for judicial notice is GRANTED as to the existence of the documents.

 

Counsel for plaintiff is ordered to give notice of this ruling.

4

Martinez v. General Motors LLC

The Motion to Compel the Deposition of Defendant’s Person Most Qualified, filed on 5/17/23 by Plaintiff Marcelina Martinez (“Plaintiff”) against Defendant General Motors, LLC (“GM”) is GRANTED IN PART.

The Motion seeks to compel GM to identify a “Person Most Qualified” to testify on the subjects identified in all in Plaintiff’s Amended Notice of Deposition of the Person Most Qualified. The Motion is GRANTED IN PART, to require GM to designate a PMQ as follows:

 

-        For Categories 1-8, 10, and 26, GM agrees to designate a PMQ

-        For Categories 11, 16-18, and 20: as to GM’s general policies and procedures in addressing repurchase requests for the last 3 years and as to how GM calculates restitution on such request, and how GM determines non-conformity, what a reasonable number of repair attempts is, and whether a nonconformity substantially impairs a vehicle

 

The Motion is otherwise DENIED, as the remainder of the categories as identified lack adequate specificity and are plainly overbroad.

As to the document requests, a number of the documents have already been produced either in response to the notice or in previous discovery requests. The motion is GRANTED in part as to Requests 12-14, but DENIED as to the remainder as they are overbroad and Plaintiff has not shown good cause.

 

Counsel are to promptly confer to identify dates for the deposition(s) to be permitted on the topics identified above, which are reasonably convenient for the parties and witnesses, with such depositions to be on dates within the next 20 days, or on any later dates that counsel may agree upon in a writing.

 

Moving party to give notice.

5

Nachtrieb v. County of Orange

Cont. to 9/25.

6

Sheldon Public Relations v. IPC (USA), Inc., et al.

The unopposed Motion to Seal filed by Defendants, Truman Arnold Companies dba TACenergy; TACenergy, LLC; and TACenergy Holdings, LLC (collectively “Defendants”) is GRANTED.  The Court determines that an overriding interest exists that overcomes the right of public access to the records at issue, as the materials to be sealed contain confidential and proprietary business information of Defendants, and a substantial probability exists that the overriding interest will be prejudiced if the records at issue are not sealed.  Defendants have submitted appropriately redacted versions of the related documents which are narrowly tailored to seal only the confidential and proprietary materials at issue, and no less restrictive means exist to achieve the overriding interest.  As the Motion to Seal is therefore appropriate under C.R.C. 2.551, the Motion is GRANTED.

 

Counsel for Defendants is to give notice.

7

De Witte Mortgage Investors Fund LLC v Duringer et al

Before the Court at present are two motions, both filed by Defendants Anthony Burton and AWB Law, PC (here as moving parties, “MPs”), against Plaintiff De Witte Mortgage Investors Fund LLC (“Plaintiff”) as follows:

 

(1)  MP’s Motion to Deem Requests for Admission Admitted, filed on 4/19/23 (“Motion 1” below); and

(2) MP’s Motion to Compel Plaintiff to Respond to Requests for Documents, filed on 4/18/23 (Motion 2” below).

 

On Motion 1 (ROA 52), the Motion is DENIED as to the request to deem the Requests for Admission, Set One (here the “RFAs”) admitted.

 

Plaintiff belatedly provided responses which, on the whole, adequately comply with C.C.P. § 2033.220. (See C.C.P. § 2033.280(c) [“court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220}] and St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 783 [responses are substantially compliant if the responses as a whole generally comply].)  This is so even though the tardy responses improperly included objections in the “preliminary statement” after all objections had been waived, and omitted a response to RFA No. 26: those defects must be addressed in a future motion, after an appropriate effort to meet and confer, under C.C.P. § 2033.290.

 

However, MP’s request for sanctions against Plaintiff, under C.C.P. § 2033.280(c), is GRANTED in the amount of $575. Plaintiff is to pay those sanctions to MPs, through their counsel of record, within 15 days after service of notice of this ruling.

 

On Motion 2 (ROA 48), the Motion is GRANTED IN PART. 

As no responses were timely provided to the Requests for Production, Set One (here the “RFPs”), all objections thereto were waived.  (C.C.P. §2030.290(a), (b).)  Yet the responses which were belatedly served while this Motion was pending nonetheless included objections in the “preliminary statement.”

 

In addition, the substantive responses failed to comply with C.C.P. § 2031.210(a). The fact that responses were belatedly served does not prevent this Court from ruling on the Motion. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405-409.)  Plaintiff is therefore ordered to provide complete supplemental responses to the RFPs, without any preliminary or other objections, which actually comply with C.C.P. § 2031.210 et seq., within 15 days after service of notice of this ruling.

 

MP’s request for sanctions against Plaintiff, under C.C.P. § 2031.300(c), is GRANTED in the amount of $460. Plaintiff is to pay those sanctions to MPs, through their counsel of record, within 15 days after service of notice of this ruling.

 

Counsel for MPs is to give notice of these rulings.

8

Lee v Sok et al

O/C—Dismissal filed 8/25

9

Roberson v. G&M Oil Company, Inc

Defendant, G&M Oil Company, Inc.’s (“Defendant”) motion to compel further responses to Special and Form Interrogatories, Sets One, from Plaintiff, Shaun Roberson (“Plaintiff”) is CONTINUED to September 18, 2023, at 2:00 p.m. in this department.

 

It is unclear from the moving papers if this motion is timely filed.  While the moving papers state Plaintiff’s supplemental responses were served on April 3, 2023, the motion does not specify the method of service of said responses and does not attach the complete discovery responses with proofs of service.  This motion was filed 49 days after April 3, 2023.  Thus, depending on the method of service, the motion is potentially untimely filed.

 

The 45-day deadline to bring a motion to compel further responses is mandatory and jurisdictional.  (Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 685.)  The deadline is jurisdictional insofar as it renders the court without authority to rule on motions to compel other than to deny them.  (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

 

The Court will thus CONTINUE the hearing to the above date so that Defendant can file the proofs of service of Plaintiff’s supplemental discovery responses, which will allow the Court to determine if the motion is timely filed.

 

Defendant is to file a supplemental declaration that attaches Plaintiff’s complete supplemental discovery responses with proofs of service at least 9 court days before the hearing.

 

Counsel for Defendant is to give notice.

10

Stewart v. Zhou, et. al

The motion by defendant Realty Masters & Associates, Inc. (“Realty”) against plaintiffs Kurt Douglas Stewart and Lara Elizabeth Stewart for dismissal of the complaint, an order that RFAs be deemed admitted and/or monetary sanctions is GRANTED in part and DENIED in part.

 

Realty’s motion is based on the failure of the plaintiffs to provide verified answers to written discovery, and to produce documents, as ordered by the Court on March 6, 13 and 27, 2023.  (Bradley Decl. at ¶8)

 

In plaintiffs’ opposition, counsel stated via declaration on 8/15/23 that he had “prepared responses to all of the outstanding discovery and anticipate verified responses without objection will be served by the end of the week.  I will be finished preparing the documents for production by tomorrow when they will be served on the parties.  I anticipate producing several hundred pages of documents.  A supplemental declaration with the responses attached as exhibits will be filed at that time.”  (Sienski Decl. at ¶6) 

 

However, contrary to counsel’s representations, as of the filing of the reply on 8/21/23 the only discovery responses provided were to the RFAs and no documents were provided. (Bailey Decl. at ¶2)   Also, plaintiffs did not file a supplemental declaration as represented.

 

Imposition of sanctions for misuse of discovery lies within the trial court’s discretion.  (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 991.)  Once a party is ordered by the court to provide responses to discovery, continued failure to respond may result in the imposition of more severe sanctions. (See Code Civ. Proc. §§ 2030.290(c) (interrogatories), 2031.300(c) (requests for production); see also The Rutter Group, Civil Procedure before Trial ¶ 8:852.)  The court may impose sanctions against any party for engaging in conduct constituting a “misuse of the discovery process.” (Code Civ. Proc., § 2023.030 (a).) Misuse of the discovery process includes “failing to respond or submit to an authorized method of discovery” and “disobeying a court order to provide discovery.” (CCP§ 2023.010 (d)&(g).)

 

However, before issuing terminating sanctions, the court should usually grant lesser sanctions such as orders staying the action until the derelict party complies, or orders declaring matters as admitted or established if answers are not received by a specified date, often accompanied with costs and fees to the moving party.  (Doppes v. Bentley Motors, Inc (2009) 174 Cal.App.4th 967, 991; Civil Procedure before Trial ¶ 8:1215.)  It is only when a party persists in disobeying the court’s orders that the ultimate sanctions of dismissing the action or entering default judgment, etc. are justified. (See Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771.)

 

Based on responses to RFAs having been served, along with plaintiffs’ counsel’s representation that verified answers, without objection, are forthcoming, terminating sanctions and deeming RFAs admitted is a step too far at this point.  The Court will allow plaintiffs until September 5, 2023 to complete service by email of the verified answers, without objection, and production of documents, to the Form Interrogatories, Set One, Special Interrogatories, Set One and Request for Production of Documents, Set One, and to produce documents.  Upon completion of service of the foregoing, plaintiffs are ORDERED to file a declaration with the Court showing compliance with the Court’s orders regarding the responses only. (Proof of payment of sanctions is not required as Realty has other options for collection of sanctions.)  In the event a declaration regarding service is not filed on or before September 5, 2023, the Court will issue evidentiary sanctions and ORDER that the plaintiffs are precluded from submitting any evidence or argument at trial regarding the matters which are the subject of the 29 interrogatories in Special Interrogatories, Set One.

 

In addition to the foregoing, irrespective of whether the plaintiffs submit proof of compliance with the discovery orders, the plaintiffs and their counsel, Paul Sienski, jointly and severally, are ORDERED to pay monetary sanctions in the amount of $2,760 to Realty Masters & Associates, Inc., through their attorney of record, within 30 days.

 

The Court orders counsel for Realty Masters & Associates, Inc. to give notice of this ruling.

11

Doe v. Tax Rise, Inc.

Plaintiff’s Motion for an Order to Proceed Under a Pseudonym is DENIED.

 

“Before a party to a civil action can be permitted to use a pseudonym, the trial court must conduct a hearing and apply the overriding interest test: A party's request for anonymity should be granted only if the court finds that an overriding interest will likely be prejudiced without use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access. In deciding the issue the court must bear in mind the critical importance of the public's right to access judicial proceedings. Outside of cases where anonymity is expressly permitted by statute, litigating by pseudonym should occur ‘only in the rarest of circumstances.’ (internal citation omitted)” (Department of Fair Employment Housing v. Superior Court of Santa Clara County (2022) 82 Cal.App.5th 105, 111-112. )

 

Plaintiff’s declaration states that he fears that if his identity is revealed it may prevent him from obtaining future jobs, and make it difficult to maintain a personal life without public stigmatization, humiliation, and embarrassment.  Plaintiff has not articulated any greater threat of retaliation or harm that would occur as a result of suing in his true name beyond a speculative fear based on employers being afraid to hire candidates that have sued previous employers. This same risk arises in any employment case and is based simply on the act of filing a lawsuit not the actual allegations in the complaint. Plaintiff has not asserted any overriding interest that will likely be prejudiced without the use of a pseudonym, let alone one that would outweigh the public’s right to access judicial proceedings. As noted above, litigating by pseudonym outside of specific statutory permission is to be granted “only in the rarest of circumstances”, and Plaintiff has not shown he is facing any greater threat of retaliation than the typical non-anonymous plaintiff in an employment case. As such, the motion is DENIED.

 

Moving party to give notice.

12

Williams Pipeline Contractors, Inc. v. Hardy & Harper, Inc.

The Demurrer filed by defendant Hardy & Harper, Inc. (“Hardy”) as to the complaint by plaintiff Williams Pipeline Contractors, Inc. (“Williams”) is OVERRULED.

 

Hardy filed a general demurrer which attacks Williams’ entire complaint.  “A demurrer which attacks an entire pleading should be overruled if one of the counts therein is not vulnerable to the objection.”  (Bacon v. Wahrhaftig (1950) 97 Cal. App. 2d 599, 605; see also, see also, Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 - general demurrer may be upheld “only if the complaint fails to state a cause of action under any possible legal theory” (emphasis added).) 

 

The first cause of action is for Promissory Estoppel.  “The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.”  (Flintco Pacific, Inc. v. TEC Management Consultants, Inc. (2016) 1 Cal.App.5th 727, 734.) 

 

Here, Williams alleges it was a prime contractor making a bid to the City of Brea for construction work.  As part of its preparation of the bid, plaintiff relied upon a written bid it had received from Hardy for asphalt paving and slurry which Hardy had prepared for the express purpose that it be used in plaintiff’s proposal to the City.  (Complaint at ¶5)  The written bid plaintiff received from the defendant was included in the bid to the City. (Complaint at ¶5)  The defendant knew that their written bid would be used by plaintiff in its bid to the City.  (Complaint at ¶6)  The allegation that Hardy provided a bid for pavement work to the plaintiff as a prime contractor who was making a bid to the City represents an allegation of a promise by Hardy to honor the bid in the event the plaintiff was successful in obtaining the contract with the City.

 

Plaintiff also sufficiently alleges facts showing reliance on the bid by stating that it submitted the bid to the City and specifically incorporated the bid it received from the defendant.  Defendant asserts that the plaintiff has failed to allege  that the reliance was “reasonable.”  However, what the plaintiff describes appears to be a normal process where a contractor obtains a bid from a sub-contractor for work it will perform on a prospective job in the event the prime contractor is awarded the contract.  The context of the facts alleged shows that the reliance on the defendant’s bid was alleged to be reasonable. Adding the word “reasonable” does not change the underlying facts pled.  Plaintiff has sufficiently pled the facts relied upon.  (Del Paso Recreation & Park Dist. v. Bd. of Supervisors (1973) 33 Cal. App. 3d 483, 501 - “Where a party relies upon estoppel, he must plead all of the facts relied upon to establish the elements constituting the doctrine.”)

 

Hardy argues that the written bid it gave Williams on 7/29/21 expressly stated: “PRICE GOOD THROUGH 3/20/22” and that Williams did not notify Hardy until 6/14/22 that Williams had used Hardy’s written proposal in its bid for the Project.   However, these are facts beyond the four corners of the complaint.  A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-1405.)

 

Accordingly, since the plaintiff has sufficiently pled a cause of action for Promissory Estoppel, the general demurrer is OVERRULED.

 

Counsel for Hardy is ordered to give notice of this ruling.

13

Kwok v. Genera Corporation

The Motions to be Relieved as Counsel, filed by moving counsel Edward G. Operini and Angie H. Kim on 8/3/23, seeking orders to be relieved as counsel for Plaintiff/Cross-Defendant Jackson Kwok and Cross-Defendant Annie Wong, is GRANTED, with relief to be effective upon filing of a proof of service showing service of the resulting order on the client.

 

Moving counsel is to give notice of this ruling.

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Johnson v. Dodd

The unopposed motions to compel further responses to Special Interrogatories, Form Interrogatories and Requests for Production of Documents, all sets one, from Plaintiffs, Ronald Johnson and Kim Johnson (“Plaintiffs”) filed by Defendant, HSCA, Inc. (“HSCA”) are GRANTED.  (Code Civ. Proc., §§ 2030.300(a); 2031.310(a).) 

 

As HSCA has now shown that Plaintiffs were properly served with notice of the current hearing date for these motions (ROA 161), the Court will rule on the merits of the motions.

 

The motions demonstrate that HSCA served Plaintiffs with HSCA’s Special Interrogatories, Form Interrogatories and Requests for Production of Documents, all sets one, on December 30, 2022.  (Exhibits A to motions.)  On March 3, 2023, Plaintiffs served their responses to the subject discovery, which were comprised entirely of objections.  (Exhibits B to Motions.)  In addition, no documents responsive to the inspection demand were produced.  (Mikhaylova Decls. ¶ 5.)

 

Because the motions are unopposed, Plaintiffs fail to meet their burden to justify their objections and show how they apply to each of these discovery requests.  (Coy v. Sup.Ct. (Wolcher) (1962) 58 Cal.2d 210, 220-221; Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98; Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.)

 

Accordingly, the motions are GRANTED.  Plaintiffs are ordered to provide further code-compliant written responses within 20 days of notice of ruling.

 

The Court finds sanctions are warranted as Plaintiffs failed to offer any substantial justification for their failure to fully respond to the discovery requests.  (Code Civ. Proc., §§ 2030.300(d) and 2031.310(h).)  The Court imposes a reasonable monetary sanction in the amount of $1,200 per motion, for a total monetary sanction of $3,600, against Plaintiffs, payable to HSCA, through its counsel of record, within 30 days of notice of ruling.

 

Counsel for HSCA is to give notice.

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