TENTATIVE RULINGS
DEPT C21
LAW AND MOTION CALENDAR
Judge Deborah C. Servino
Date: August 25, 2023
Please read the applicable rules carefully. Do not call the department unless submitting on the tentative.
The court will endeavor to post tentative rulings on the Court’s website by 3 p.m. on the preceding Thursday. However, ongoing proceedings may prevent posting by that time. Do not call the department for tentative rulings if none are posted. The court will not entertain a request for continuance once a ruling has been posted and no additional papers will be considered once a ruling has been posted.
If you wish to submit on the tentative and do not want to appear, please inform the clerk by calling (657) 622-5221, and inform opposing counsel.
The Law and Motion Calendar is heard on Fridays at 10 a.m. All arguments will be heard at that time. Unless otherwise indicated in the tentative ruling, the prevailing party will give Notice of Ruling. If no one appears for the hearing, the court shall determine whether the matter is taken off calendar or whether the tentative ruling shall become the final ruling.
APPEARANCES: The Law and Motion Calendar is set as a remote hearing via Zoom. All counsel and self-represented parties appearing remotely for the Law and Motion Calendar must check-in online through the Court’s website at https://www.occourts.org/media-relations/civil.html, then click on the gold ribbon that states “Click here to appear/check-in for civil small claims/limited/unlimited/complex remote proceedings”, and then click on Department C21 (to check-in). However, counsel and self-represented parties preferring to appear in-person may do so. The Court’s “Appearance Procedures and Information - Civil Unlimited,” “Guidelines for Remote Appearances,” remote video appearance instructions, Orange County Superior Court Local Rule 375 on Remote and In-Person Proceedings in Civil, and an instructional video are also available through the Court’s website at The Superior Court of California - County of Orange (occourts.org). If you encounter difficulty checking-in online or connecting remotely, please call Department C21 for assistance at (657) 622-5221.
PUBLIC ACCESS: The public may attend the Law and Motion calendar may attend in-person or remotely. Members of the public who would like to attend remotely should contact the Clerk in Department C21 at (657) 622-5221.
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. Please see the Court’s website for further information. The Court’s policy on privately-retained court reporters is available on the Court’s website at: Privately-Retained Court Reporter Policy.
No filming, broadcasting, photography, or electronic recording is permitted of the video session pursuant to California Rules of Court, rule 1.150 and Orange County Superior Court rule 180.
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Bacani v. Nationstar Mortgage, et al. 30-2023-01334199 |
Plaintiff Jennifer Bacani's motion for preliminary injunction against Defendants Nationstar Mortgage LLC dba Mr Cooper, U.S. Bank Trust Company, National Association (FKA U.S. Bank, N.A.), and The Mortgage Law Firm, PLC, is denied.
As a preliminary matter, it has not been shown that the court has personal jurisdiction over two of the defendants. A proof of substitute service on Nationstar Mortgage LLC dba Mr Cooper, U.S. Bank Trust Company was filed on July 27, 2023. There is no proof of service on U.S. Bank Trust Company, National Association (FKA U.S. Bank, N.A.). The court cannot enjoin defendants over whom it has no jurisdiction.
Even if the court were to rule on the merits of the motion, it would be denied. Code of Civil Procedure section 526, subdivision (a)(3) provides that an injunction may be granted: “When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.” (See San Francisco Newspaper Printing Co., Inc. v. Superior Court (1985) 170 Cal.App.3d 438, 442, and Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 9:528.)
“As its name suggests, a preliminary injunction is an order that is sought by a plaintiff prior to a full adjudication of the merits of its claim. [Citation.] To obtain a preliminary injunction, a plaintiff ordinarily is required to present evidence of the irreparable injury or interim harm that it will suffer if an injunction is not issued pending an adjudication of the merits. [Citation.]” (White v. Davis (2003) 30 Cal.4th 528, 554, emphasis in original.) Generally, “the question whether a preliminary injunction should be granted involves two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.” (Ibid.) However, “[a] trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim.” (Hunt v. Superior Court (1999) 21 Cal.4th 984, 999, citation omitted.)
Plaintiff has not shown a probability of prevailing on the merits. The crux of her case is that Defendants are attempting to collect a debt that was discharged by the bankruptcy court. No evidence was submitted. (See Mot. [ROA 8].) Other than her bare claims, there is nothing before the court evidencing the discharge of this alleged debt, the threatened foreclosure, or the probability of prevailing on the merits.
Similarly, while Plaintiff asserts irreparable harm, she provides no evidence to show how she will be harmed by continued debt collection efforts, including foreclosure. Under these circumstances, the court finds that Plaintiff has not shown irreparable harm or that the balance of harms weighs in favor of issuance of the requested preliminary injunction. The motion is denied.
The Clerk shall give notice of the ruling.
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Lamrabet v. Buchanan 30-2022-01258399 |
To the extent Plaintiff attempts to amend the SAC, without having first obtained leave of court (see ROA 98), it is improper. (Code Civ. Proc., § 472.) Plaintiff has been previously admonished that her failure to comply with the California Rules of Court or Code of Civil Procedure may result in the court exercising its discretion to not consider her briefing. (See 10/7/2022 Minute Order; 4/28/2023 Minute Order.) The court disregards this document.
DEMURRER
Defendant's demurrer the first and second causes of action of SAC is overruled.
Special Demurrer for Uncertainty
The first cause of action is labeled as "misdiagnosis by misrepresentation of facts." Defendant argues that this cause of action is uncertain. (Dem., at pp. 2 & 4.) Specifically, Defendant contends that he cannot determine whether an intentional or negligence claim has been alleged against him.
A special demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A demurrer for uncertainty should be overruled if the facts are presumptively within defendant’s knowledge. (Khoury v. Maly’s of California, Inc., supra, 14 Cal.App.4th at p. 616.) A party attacking a pleading on “uncertainty” grounds must specify how and why the pleading is uncertain, and where that uncertainty can be found in the challenged pleading. (Fenton v. Groveland Community Services Dept. (1982) 135 Cal.App.3d 797, 809, disapproved on other grounds in Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300.) Here, the first cause of action is not so unintelligible that Defendant cannot reasonably respond. Any ambiguities can be clarified through discovery. (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135; Khoury v. Maly's of California, Inc., supra, 14 Cal.App.4th at p. 616.) Accordingly, the special demurrer for uncertainty is overruled.
General Demurrer
A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) On demurrer, a complaint must be liberally construed. (Code Civ. Proc., § 452; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) All material facts properly pleaded, and reasonable inferences, must be accepted as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) The test is whether the complaint states any valid claim entitling Plaintiff relief. A general demurrer may be upheld only if the complaint fails to state a cause of action under any possible legal theory. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.)
"Misdiagnosis by Misrepresentation of Facts" (First Cause of Action)
“Generally, ‘negligence’ is the failure to exercise the care a reasonable person would exercise under the circumstances. [Citation.] Medical negligence is one type of negligence, to which general negligence principles apply.” (Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 694.) The elements of a medical malpractice claim are (1) the duty of the professional to use such skill, prudence, and diligence as other members of his [or her] profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) loss or damage resulting from the professional’s negligence. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468, fn. 2.)
"A physician's duty to disclose to a patient information material to the decision whether to undergo treatment is the central constituent of the legal doctrine known as 'informed consent.'" (Arato v. Avedon (1993) 5 Cal.4th 1172, 1175.) Much of the doctrine of informed consent is anchored in a theory of negligence liability. (Id. at pp. 1182-1183.) "A claim based on lack of informed consent - which sounds in negligence - arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives." (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324; see CACI no. 533.)
Although not the model of clarity, when read liberally, the first cause of action has sufficiently alleged medical malpractice and lack of informed consent. (SAC, at pp. 2-10.) Accordingly, the demurrer as to the first cause of action is overruled.
Gross Negligence (Second Cause of Action)
Defendant argues that gross negligence was insufficiently pled. (Dem., at pp. 4-5.) To set forth a claim for gross negligence, the plaintiff must allege extreme conduct on the part of the defendant. The conduct must rise to the level of either a want of even scant care or an extreme departure from the ordinary standard of care. (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082.)
Here, the SAC has sufficiently alleged facts showing a deviation from the standard of care. (SAC, at pp. 10-11.) Whether that conduct constitutes ordinary negligence or gross negligence is generally a question of fact, depending on the nature of the act and the surrounding circumstances shown by the evidence, that cannot be determined on demurrer. (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 555.) Accordingly, the demurrer as to the second cause of action is overruled.
MOTION TO STRIKE
Defendant moves to strike allegations that he describes as irrelevant conclusions regarding his character and intent that are unsupported by factual allegations. The court was unable to locate the first item that Defendant seeks to strike. However, the remaining items were located. (See SAC, at pp. 10:19-23, 11:12-15, 11:19-23, 12:5-7, 12:13-15, 13:4-9.)
A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out 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. (Code Civ. Proc., § 436.) “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 7:179.)
The allegations at issue are relevant to Plaintiff's claim of medical negligence, lack of informed consent, and gross negligence. As one court explained: "We emphasize that such use of the motion to strike should be cautious and sparing. We have no intention of creating a procedural 'line item veto' for the civil defendant." (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.) The motion to strike is denied.
No later than September 11, 2023, Defendant shall file his answer to the SAC. Defendant shall serve his answer pursuant to the Code of Civil Procedure.
Defendant shall give notice of the ruling.
CASE MANAGEMENT CONFERENCE
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Morinello v. Royal Entertainment, Inc., et al. 30-2017-00914809 |
Defendant Mohammad Sayed’s ("Defendant") unopposed motion to set aside default and default judgment, is denied.
Defendant moves for relief from the default and default judgment entered against him under Code of Civil Procedure sections 473, subdivision (d), 473.5, and the inherent authority of the court. He contends that the default and default judgment entered against him should be set aside, because Plaintiff “attempted to re-join him via a new doe amendment more than two (2) years after the purported incident,” and, as such, “the applicable statute of limitations had expired as to any claims against [him].”
Code of Civil Procedure section 473, subdivision (d) allows the court to “correct clerical mistakes in its judgment or orders as entered,” and “set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).) Code of Civil Procedure section 473.5 provides relief when “service of a summons has not resulted in actual notice to a party in time to defend the action…” (Code Civ. Proc., § 473.5, subd. (a).) Lastly, “a court has inherent, equitable power to set aside a judgment on the ground of extrinsic fraud or mistake.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 5:435 [citations omitted].)
Here, Defendant has not shown that there are grounds for setting aside the default and default judgment under statutory authority or the court’s inherent power. While Defendant contends the claims are time-barred against him, due to an invalid Doe amendment, the statute of limitations is an affirmative defense. (Universal Home Improvement, Inc. v. Robertson (2020) 51 Cal.App.5th 116, 127–128; see Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 172 Cal.App.3d 914, 940; Petersen v. W. T. Grant Co. (1974) 41 Cal.App.3d 217, 223; Minton v. Cavaney (1961) 56 Cal.2d 576, 581.) Defendant has not made a general appearance in this matter to assert the affirmative defense. Rather, he allowed default and default judgment to be entered against him.
Defendant's reliance on the successful defense put on by his co-defendants, Aziz and Protect-US, is unavailing. Unlike Defendant, they properly asserted the affirmative defense of statute of limitations after their defaults were set aside. (ROA 420, 461.) Defendant cannot assert a statute of limitations defense, unless and until he first establishes grounds for setting aside the default and default judgment, (e.g., for improper service). (See W. A. Rose Co. v. Municipal Court for Oakland-Piedmont Judicial Dist., Alameda County (1959) 176 Cal.App.2d 67, 72.) Accordingly, the motion is denied.
The Clerk shall give notice of the ruling.
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Neeble-Diamond v. Hotel California by the Sea, LLC 30-2019-01058756 |
Plaintiff Amanda Neeble-Diamond’s motion to strike or tax costs is denied.
Plaintiff moves for an order striking or taxing Defendant Hotel California By The Sea LLC’s memorandum of costs on appeal (ROA 1087), on the grounds that Defendant “is not entitled to any costs in a FEHA action unless the employee-plaintiff’s case was frivolous,” and “FEHA requires the court to consider the parties’ respective economic resources when determining what constitutes reasonable costs.” (Memo. of P&A at 2 [ROA 1120].)
California Rules of Court, rule 8.278 orders the clerk or executive officer of the Court of Appeal to “enter on the record, and insert in the remittitur, a judgment awarding costs to the prevailing party under (a)(2) or as directed by the court under (a)(3), (a)(4), or (a)(5).” (Cal. Rules of Court, rule 8.278(b)(1).) A party claiming costs awarded by the reviewing court must file and serve its verified memorandum of costs within 40 days after issuance of the remittitur. (Cal. Rules of Court, rule 8.278(c)(1).)
“A party may serve and file a motion in the superior court to strike or tax costs claimed under (1) in the manner required by rule 3.1700.” (Cal. Rules of Court, rule 8.278(c)(2).) Under rule 3.1700, “[a]ny notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).” (Cal. Rules of Court, rule 3.1700(b)(1).)
The parties may agree to extend the time for filing and service of the motion, but “[t]his agreement must be confirmed in writing, specify the extended date for service, and be filed with the clerk.” (Cal. Rules of Court, rule 3.1700(b)(3).) “In the absence of an agreement, the court may extend the times for serving and filing the cost memorandum or the notice of motion to strike or tax costs for a period not to exceed 30 days.” (Ibid.)
Here, the memorandum of costs on appeal was filed and served, via mail and electronic service, on March 3, 2023. (ROA 1087.) Absent an extension, Plaintiff’s motion to tax or strike was due at the latest by March 23rd. Plaintiff did not file her the memorandum of points and authorities, until April 19, 2023, which is nearly a month too late. Indeed, she did not even file her notice of the motion until May 19, 2023. (See ROA 1137.) There is no record of an agreement by the parties to extend the deadline. There was no request for an extension from the court.
Even if this motion had been timely filed, the court would still be compelled to deny it. As reflected in its opinion, the appellate court affirmed the judgment and stated “HCBTS is entitled to its costs on appeal.” (ROA 1072 [Opinion at p. 17].) This award was reflected in the Remittitur issued on or about February 6, 2023. (ROA 1085.) The appellate court “determines the final award of costs on appeal (who shall recover the same),” while the trial court “determines the specific judgment (what items of costs the entitled party may recover under the general award).” (Ramirez v. St. Paul Fire & Marine Ins. Co. (1995) 35 Cal.App.4th 473, 478.) “When an appellate court directs in its opinion that the appellant is to recover its costs on appeal, ‘no one, neither the lower court nor any of the unsuccessful respondents . . . [is] entitled to overrule [the] court by analyzing ... [its] order[ ] awarding costs and in part setting aside [the] order[ ] for judgment.’” The “losing party seeking an allocation of costs on appeal must direct its request to the appellate court.” This request “should normally be made before the court loses its jurisdiction over the matter by issuance of the remittitur.” (Ibid.; see Eisenberg, et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2022) at ¶ 14:70.1.)
This court does not have authority to decide the issue of entitlement to costs. Although Plaintiff made an alternative request for the court to tax costs, by “apply[ing] a blanket reduction to an amount that is reasonable,” it is Plaintiff’s burden to object to each item and state why the item is objectionable. (Cal. Rules of Court, 3.1700(b)(2).) There is no reason for the court to tax the cost items that appear reasonable on the face of the verified memorandum. Accordingly, the motion is denied.
The Clerk shall give notice of the ruling.
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30-2023-01306828 |
Hearing on demurrer to complaint and motion to strike portions of complaint off-calendar. The demurrer and motion to strike rendered moot by First Amended Complaint, filed 8/10/2023.
CASE MANAGEMENT CONFERENCE
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Romero v. HCI Systems, Inc., et al. 30-2021-01230297 |
Defendant Advanced Leasing, Inc. ("Defendant") moves to compel further responses from Plaintiff Deborah Romero to: (1) form interrogatories, set one, nos. 2.6(b), 2.13, 4.1, 6.5-6.7, 8.4-8.8, 9.1-9.2, 10.1-10.2, 12.2, 12.7, 17.1, 20.3, 20.8, and 20.11; (2) special interrogatories, set one, nos. 1-26, 50-51, 55, 59, and 70; (3) request for production of documents, set one, nos. 2-3, 5, 11-19, 21, 23, 25-32, 34-38, 43-46, 48, 53, and 56-58; and (4) requests for admissions, set one, nos. 1-54, and 56-58.
Separate Statements
As noted in this July 21, 2023 rulings, co-Defendant HCI Systems, Inc.'s separate statements fail to comply with California Rules of Court, rule 3.1345. The separate statement is to be “a separate document filed and served with the discovery motion . . .” (Cal. Rules of Court, rule 3.1345(c) [emphasis added].) Here, Defendant's separate statements have the same deficiencies. The court recognizes that the instant motions were filed without the benefit of the July 21, 2023 rulings. The court will consider the moving papers in their entirety, but cautions defense counsel to review the California Rules of Court and Code of Civil Procedure before filing motions in the future.
FORM INTERROGATORIES
Defendant’s unopposed motion to compel Plaintiff’s further responses to its set one, nos. 2.6(b), 2.13, 4.1, 6.5-6.7, 8.4-8.8, 9.1-9.2, 10.1-10.2, 12.2, 12.7, 17.1, 20.3, 20.8, and 20.11, is granted.
Code of Civil Procedure section 2030.220 provides:
(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. (b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible. (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.
Where the question is specific and explicit, an answer that supplies only a portion of the information sought is improper. It is also improper to provide “deftly worded conclusionary answers designed to evade a series of explicit questions.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.)
A party may move to compel further responses to interrogatories on the grounds that the answer is evasive or incomplete, an exercise of the option to produce documents under Code of Civil Procedure section 2030.230 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)
Nos. 2.6(b), 4.1, 8.4, 9.1, 20.3, 20.8, and 20.11
The responses to these requests were incomplete and evasive. For example, as to 2.6(b), Plaintiff did not address all of the areas of inquiry (e.g., job title and nature of work at Walmart or Dan's warehouse). The response was also evasive and appears to have been given without having reviewed reasonably available information to Plaintiff and without having made a reasonable and good faith effort to obtain the information (i.e., "in Corona for approximately 6 months" and "I do not recall the address of the company or the agency, but it is in Orange County.").
Nos. 2.13, 8.5-8.8, 10.1-10.2, 12.7, and 17.1
Plaintiff served only objections to these requests. By not filing a timely opposition, Plaintiff failed to justify these objections.
Nos. 6.5-6.7, 9.2, and 12.2
For these requests, Plaintiff exercised the option under Code of Civil Procedure section 2030.230. In order to meet the burden to exercise this option, Plaintiff has to show: (1) a compilation, abstract, audit or summary of the responding party’s records is necessary in order to answer the interrogatory; and (2) no such compilation presently exists; and (3) the burden and expense of preparing or making it would be substantially the same for Defendant as for Plaintiff. (Code Civ. Proc., § 2030.230.) To exercise the option, Plaintiff must specify the documents from which the answer may be derived or ascertained. (Code Civ. Proc., § 2030.230.) Plaintiff must describe the records from which the compilation or summary can be made with sufficient particularity that they can be easily located. (Fuss v. Superior Court (1969) 273 Cal.App.2d 807, 815-817.)
Plaintiff's responses are deficient. Exercising the option to rely on section 2030.230 is equivalent to a statement under oath that the records identified actually exist and that they contain the information necessary to provide a “complete and straightforward answer to the interrogatory.” (Deyo v. Kilbourne, supra, 84 Cal.App.3d at p. 784.) It is improper to answer an interrogatory by stating, “See my deposition” or “See the complaint herein.” If the question requires reference to some other document, it should be identified and its contents summarized so that the answer by itself is fully responsive to the interrogatory. (Id. at pp. 783-784.) Plaintiff has not complied with section 2030.230.
Plaintiff is thus ordered to serve Code-compliant further verified responses without objections to form interrogatories nos. 2.6(b), 2.13, 4.1, 6.5-6.7, 8.4-8.8, 9.1-9.2, 10.1-10.2, 12.2, 12.7, 17.1, 20.3, 20.8, and 20.11, within 20 days of the notice of ruling.
Defendant is awarded sanctions against Plaintiff in the amount of $1,160. The sanctions shall be paid to Christensen Hsu Sipes LLP within 30 days of the notice of ruling. (Code Civ. Proc., § 2030.300, subd. (d).)
SPECIAL INTERROGATORIES
Defendant's unopposed motion to compel Plaintiff's further responses to its special interrogatories, set one, nos. 1-26, 50-51, 55, 59, and 70, is granted.
Nos. 1-26
Plaintiff served only objections to these requests. By not filing a timely opposition, Plaintiff failed to justify these objections.
Nos. 50-51, 55, 59, and 70
The responses to these requests were incomplete and evasive.
Plaintiff is thus ordered to serve Code-compliant further verified responses without objections to special interrogatories, set one, nos. 1-26, 50-51, 55, 59, and 70, within 20 days of the notice of ruling.
Plaintiff is ordered to pay sanctions to Christensen Hsu Sipes LLP in the amount of $1,160 within 30 days of the notice of ruling. (Code Civ. Proc., § 2030.300, subd. (d).)
REQUESTS FOR PRODUCTION OF DOCUMENTS
Defendant's motion to compel Plaintiff's further responses to request for production of documents, set one, nos. 2-3, 5, 11-19, 21, 23, 25-32, 34-38, 43-46, 48, 53, and 56-58, is granted in part and denied in part. The motion is denied as to nos. 5, 25-26, 29-32, 35, and 38. The motion is granted as to nos. 2-3, 11-19, 21, 23, 27-28, 34, 36-37, 43-46, 48, 53, and 56-58.
An agreement to comply with a document demand must state whether the responding party will be complying "in whole or in part." (Code Civ. Proc., § 2031.220.) In addition, the response must indicate whether any documents are being withheld based on an asserted objection. (Code Civ. Proc., § 2031.240, subd. (b)). When agreeing to produce documents to a request, the responding party must also identify which documents are responsive to which request. (Code Civ. Proc., § 2031.280, subd. (a).)
On the other hand, Code of Civil Procedure section 2031.230 states:
A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall 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. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.
On receipt of the response to a document demand, the demanding party may move to compel a further response if any of the following apply: (1) a statement of compliance is incomplete; (2) a representation of inability to comply is inadequate, incomplete or evasive; (3) an objection is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).)
The motion must set forth specific facts showing good cause justifying the discovery, and it must be accompanied by a separate statement. (Code Civ. Proc., § 2031.310, subd. (b); Cal. Rules of Court, rule 3.1345.) Absent a claim of privilege or attorney work product, the burden of showing good cause may be met by a fact-specific showing of relevance. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 8:1495.6.) To establish “good cause,” the burden is on the moving party to show both: relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117; see Kirkland v. Sup.Ct. (Guess?, Inc.) (2002) 95 Cal.App.4th 92, 98.)
“If ‘good cause’ is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 8:1496.)
These requests ask for information related to Plaintiff's injuries, past and future lost earnings, future medical treatment, when Plaintiff reported the accident to Defendants, her vehicle registration, maintenance and collision records, her investigation related to the incident, her medical treatment, liens, writings and communications related to the incident, and any work-related injury documents.
Defendant contends that these requests are relevant to the liability and damages investigation and if Plaintiff's vehicle had any underlying defects or maintenance problems that contributed to the incident, or she had sustained any bodily injuries that would have affected her current claimed injuries. Defendant has shown good cause. (St. Germain Decl., at ¶ 9.) The requests appear proper and propounded in good faith.
Nos. 5, 25-26, 29-32, 35, and 38
The responses to these requests are sufficient. No further responses are required.
For instance, no. 5 requests all video footage of the incident and events occurring after the incident while Plaintiff was at the scene. After objections, Plaintiff stated: "Subject to these objections and as to this Responding Party: after a reasonable and diligent search, Responding Party is not in possession of documents responsive to this request at this time. Discovery is ongoing." (St. Germain Decl., Exh. B, at p. 5:25-27.) The court cannot order Plaintiff to produce any documents when she claims that she has no responsive documents. If Plaintiff has concealed records, the court has the power to exclude documents or other physical evidence at trial that has been concealed and that would cause unfair surprise at trial. (Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th 1447, 1455.)
Nos. 2, 11-16, 27-28, 34, 36-37, 43-46, 48, 53, and 56-58
Plaintiff served only objections to these requests. By failing to file a timely opposition to the motion, Plaintiff has failed to justify her objections made to the requests.
Nos. 3, 17-19, 21, and 23
These responses are not Code-compliant. By failing to file a timely opposition to the motion Plaintiff has not provided any authority that permits her to not vaguely refer to "all pleadings, transcripts, discovery, and other documents that have been produced and exchanged during the course of this litigation." (See, e.g., St. Germain Decl., Exh. B., at p. 5:1-3.) She also did not provide any privilege log. (St. Germain Decl., at ¶ 9.)
Plaintiff is ordered to serve further verified Code-compliant responses without objections to request nos. 2-3, 11-19, 21, 23, 27-28, 34, 36-37, 43-46, 48, 53, and 56-58, within 20 days of the notice ruling. Any document production must comply with Code of Civil Procedure section 2031.280, subdivision (a). If Plaintiff is withholding any documents based upon privilege or a claim of protected work product, Plaintiff must serve a privilege log pursuant to Code of Civil Procedure section 2031.240, subdivision (c)(1).
The court awards Defendant sanctions in the amount of $1,160 against Plaintiff, to be paid to Christensen Hsu Sipes LLP within 30 days of the notice of ruling. (Code Civ. Proc., § 2031.310, subd. (h).)
REQUESTS FOR ADMISSION
Defendant's motion to compel Plaintiff's further responses to its requests for admissions, set one, nos. 1-54, and 56-58, is granted.
A response to a request for admission “shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2033.220, subd. (a).) A response to a request for admission must contain one of the following: an admission; a denial; or a statement claiming inability to admit or deny. (Code Civ. Proc., § 2033.220, subd. (b).) Code of Civil Procedure section 2033.220, subdivision (c) states that “If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.”
“Requests for admissions . . . are primarily aimed at setting at rest a triable issue so that it will not have to be tried”. (Chodos v. Superior Court (1963) 215 Cal.App.2d 318, 323; see also Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 735 [“Rather than seeking to uncover information, [requests for admissions] seek to eliminate the need for proof.”].) Where responses have been timely served but are deemed deficient by the requesting party (e.g., because of objections or evasive responses), that party may move for an order compelling a further response. (Code Civ. Proc., § 2033.290; see Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 636.)
Here, Plaintiff only served objections to the requests for admission at issue. By failing to timely file an opposition, Plaintiff has failed to justify her objections. The court grants Defendant’s motion. Plaintiff is ordered to serve further verified Code-compliant responses without objection to Defendant’s requests for admissions set one, nos. 1-54, and 56-58, within 20 days of the notice of the ruling.
Defendant’s request for sanctions against Plaintiff is granted in the amount of $940, to be paid to Christensen Hsu Sipes LLP within 30 days of the notice of ruling. (Code Civ. Proc., § 2033.290, subd. (d).)
Defendant Advanced Leasing, Inc. shall give notice of the rulings.
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