TENTATIVE RULINGS

 

DEPT. C-42

(657-622-5242)

 

Judge David A. Hoffer

 

November 29, 2021

 

These are the Court’s tentative rulings.  They may become orders if the parties do not appear at the hearing.  The Court also might make a different order at the hearing.  (Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 442, fn. 1.) 

 

If a party intends to submit on the Court’s tentative ruling, please call the Court Clerk to inform the court.  If both parties submit, the tentative ruling will then become the order of the Court.

 

APPEARANCES:  All appearances are now through Zoom.  See the Administrative Order.

 

 

 

Court Reporters: Parties must provide their own remote court reporters (unless they have a fee waiver). 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

 

·        Court Reporter Interpreter Services

 

THE PARTIES ARE PROHIBITED BY RULE OF COURT AND LOCAL RULE FROM PHOTOGRAPHING, FILMING, RECORDING, OR BROADCASTING THIS COURT SESSION.

 

 

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Case Name

Tentative

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30-19-1061025

Simpson Vs Robinson

The Motion to Compel In-Person Deposition of Plaintiff John Simpson and Production of Documents is GRANTED.

 

Code of Civil Procedure Section 2025.450(a) provides that if a party witness fails to appear for examination or produce documents, without having served a valid objection, the noticing party may move for an order compelling the deponent’s attendance and testimony, and the production of any document described in the deposition notice.

 

The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce documents, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.  C.C.P. § 2025.450(b)(2).

 

The motion shall set forth specific facts showing good cause justifying the production for inspection of any document or tangible thing described in the deposition notice.  C.C.P. § 2025.450(b)(1).

 

Here, the Motion demonstrates that on October 25, 2021, Defendant Robert Robinson (“Robinson”) served Plaintiff with a Notice of Deposition and Demand for Production of Documents and that Plaintiff failed to serve a valid objection.  Plaintiff’s objection served two days before the date of deposition was untimely pursuant to C.C.P. § 2025.410(a) and, thus, any error or irregularity in the deposition notice was waived.  C.C.P. § 2025.410(a).

 

As far as the meet and confer requirements, the Motion does not demonstrate that Robinson contacted Plaintiff to inquire about the nonappearance pursuant to C.C.P. § 2025.450(b)(2).  However, given that Plaintiff’s counsel had advised Robinson that Plaintiff would not be attending the noticed deposition due to the indoor location, Robinson was aware of the reason for the nonappearance and no further inquiry was necessary.

 

While the Court is sympathetic to Plaintiff’s concerns pertaining to his wife’s recent surgery and heightened risk of infection, Robinson’s counsel has stated that his office will be providing evidence of full vaccination/negative Covid-19 testing on behalf of those in attendance at the deposition, as well as wearing masks and adhering to social distancing at all times.  Robinson has also represented that defense counsel’s office has a large conference room with a capacity for more than 30 individuals, and that defense counsel is willing to provide a plastic protective barrier around the area where Plaintiff would be seated.  The Court finds that these safeguards adequately address Plaintiff’s health concerns.

 

With regard to the document production, in the separate statement submitted with the Motion Robinson sets forth good cause justifying the production of documents described in the deposition notice.  In addition, Plaintiff failed to respond to the separate statement and, thus, failed to justify his objections to the requests for production of documents.  On a motion to compel deposition, the burden is on the responding party to justify the propriety of any objections. (See Dow Chemical Co. v. Superior Court (1969) 2 Cal.App.3d 1, 6; see also Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) 

 

Accordingly, the Court grants the motion to compel Plaintiff’s in-person deposition (with the safeguards noted above) and document production at deposition.  The Court orders the parties to meet and confer to schedule a mutually agreeable date for the deposition to be conducted within 30 days of the date of the ruling on this Motion.

 

Moving party is ordered to give notice.

 

 

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30-19-1061828

Yaeger VS Arconic, Inc.

Defendants’, Arconic, Inc. and Arconic Global Fasteners & Rings, Inc., Motion for Judgment on the Pleadings is DENIED.

Defendants have not shown that the Complaint fails to state a cause of action. Labor Code preemption is an affirmative defense, not an element of any of the causes of action alleged in this case.  Defendants argue that the affirmative defense is shown by judicially noticeable documents.  No proper request for judicial notice has been made for the documents attached to Attorney Cain’s Declaration.  But, even if it had, the documents do not, on their face, establish the existence of Labor Code preemption.   The Court may take judicial notice of the existence of a document, but not of the truth of its contents or the proper meaning of the document.  The court cannot decide a question that may depend on disputed facts by means of judicial notice.  [Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97]

Defendants are ordered to give notice of this ruling.

 

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30-19-1114582

Koulouras Vs Affinitiv, Inc.

The Motion to Compel Compliance. etc., filed by Defendant/Cross-Complainant Affinitiv, Inc. (“Affinitiv”), as to an Order issued on 6/28/21 concerning certain discovery demanded from  Plaintiff/Cross-Defendant Leigh Koulouras (“Koulouras”) is GRANTED.

 

On 6/28/21, this Court granted Affinitiv’s prior Motion to Compel as to RFPs 44 and 45 in part by ordering Koulouras to “proceed as proposed in the Hardeman Decl. at ¶¶ 4 and 5, to discuss appropriate search terms with Affinitiv’s counsel, and to discuss Affinitiv’s proposed additional conditions” with any issues that remain to “be presented to the discovery referee.”  It appears undisputed here that Koulouras has failed to fully comply. She must promptly do so.

 

However, it appears that the reason for Koulouras’ failure to fully comply to date is that the parties disagree on some of what Affinitiv is also demanding. Koulouras has shown substantial justification for attempting to resolve what is left in dispute before completing the review and production -- in light of the costs she will incur to complete the production as now contemplated, and the potential for significant additional costs if the production process is not completed en masse at this time. The Court, thus, declines to impose the sanctions requested by Affinitiv in this Motion.

 

Counsel for Affinitiv is ordered to give notice.

 

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30-20-1143293

Balboa Capital Corp VS Galleria Medical Suites, LLC

The Court determines that the default judgment entered against Defendants Galleria Medical Suites, LLC and Nadia Mileo on May 18, 2021 (ROA 45) is valid. 

 

The hearing on Defendant Nadia Mileo’s Claim of Exemption is reset to March 21, 2022 at 1:30pm in Department C42.

 

Defendants filing of an answer, demurrer or other response enumerated in Cal. Code Civ. Proc. § 585 would preclude entry of default.  (The Rutter Group 2021, Cal. Prac. Guide Civ. Pro. Before Trial, Defaults §5:31; Cal. Code Civ. Proc. § 585(a)-(c).)

 

On 10/05/20, Defendants, represented by counsel Brandon Leopoldus, Esq., filed a “Response to Complaint.”  Although the “Response to Complaint” appears to be Defendants’ mislabeled answer to the Complaint, this does not invalidate the subsequent entry of default because the title of the response is determinative.  The court clerk is entitled to rely on a document’s title in determining whether it is one of the permitted responses.  Defendant cannot claim it has filed an answer if the document filed is labelled otherwise.  (The Rutter Group 2021, Cal. Prac. Guide Civ. Pro. Before Trial, Defaults §5:34, citing Wisdom v. Ramirez (1985) 177 Cal.App.3d Supp. 1, 8 (disapproved on other grounds in Janssen v. Luu (1997) 57 Cal.App.4th 272, 276).)

 

“[T]he clerk in the present case was not authorized to peruse the document in question to determine whether or not it constituted an answer or should be construed as one. Instead, the clerk was entitled to rely on the document's label in making the determination whether an answer had been filed by defendant.”  (Wisdom v. Ramirez, supra, 177 Cal.App.3d at 8 (citing Goddard v. Pollock (1974) 37 Cal.App.3d 137, 143).)

 

Here, Defendants filing, according to its label, was a “Response.”  A “response” is not one of the filings enumerated in Cal. Code Civ. Proc. § 585 that prevents entry of default.  In addition, no first appearance fees were paid by either defendant.  Thus, it was reasonable for the clerk to presume that an appearance had not been made and that entry of default was proper.

 

Moreover, Defendants were duly served with the entry of default and court default judgment but failed to seek relief from either order.  In addition, Mileo – who was present remotely at the 09/02/21 Status Conference in which the validity of the judgment was discussed – did not file any brief addressing these issues as requested by the Court.

 

Plaintiff was permitted to apply for entry of Defendants’ default because the Defendants had been served with the summons and complaint, the time allowed by law for responding to the complaint had expired, and Defendants had failed to file an answer, demurrer or other response enumerated in Cal. Code Civ. Proc. § 585.  (The Rutter Group 2021, Cal. Prac. Guide Civ. Pro. Before Trial, Defaults §5:17.) 

 

Accordingly, the Court finds that the default was properly entered and, consequently, the subsequent default judgment entered on May 18, 2021 is valid.

 

Plaintiff is ordered to give notice.

 

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30-20-1146432

Clemens Vs Prentice

Before the Court are Motions to Compel Attendance at Deposition as to Defendants Kevin Prentice (“Prentice”) and Jose Trujillo (“Trujillo”) and requests for monetary sanctions.  For the reasons set forth below, the Motions to Compel Attendance at Deposition are GRANTED and the requests for sanctions are DENIED.

 

Code of Civil Procedure Section 2025.450(a) provides that if a party witness fails to appear for examination or produce documents, without having served a valid objection, the noticing party may move for an order compelling the deponent’s attendance and testimony, and the production of any document described in the deposition notice.

 

The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce documents, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.  C.C.P. § 2025.450(b)(2).

 

The motion shall set forth specific facts showing good cause justifying the production for inspection of any document or tangible thing described in the deposition notice.  C.C.P. § 2025.450(b)(1).

 

If a motion to compel deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the losing party unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  C.C.P. § 2025.450(g)(1).

 

Motion 1: Motion to Compel Deposition of Prentice

 

Although Prentice served a timely objection to the October 6, 2021 deposition notice on Plaintiff’s counsel, Prentice did not serve the objection on defendants Trujillo and Gross.  Both had been served with a copy of Prentice’s deposition notice.  Therefore, Prentice’s objection failed to comply with C.C.P. § 2025.410(a), which requires that the written objection be served “on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.”  (Emphasis added).

 

As far as the meet and confer requirements, the Motion does not demonstrate that Plaintiff contacted Prentice to inquire about the nonappearance pursuant to C.C.P. § 2025.450(b)(2).  However, given that Prentice’s counsel had served an objection stating that Prentice and his counsel were unavailable for the noticed deposition, Plaintiff was aware of the reason for the nonappearance and no further inquiry was necessary.

 

The Court, therefore, grants the motion to compel Prentice’s attendance at deposition and orders the parties to meet and confer (via telephone or email) to schedule a mutually agreeable date for Prentice’s deposition to be set within 30 days of the date of the ruling on the Motion.

 

Without prejudice to a future motion, the Court declines to compel the production of documents at deposition as that issue is not properly before the Court.  The notice of motion seeks only an order compelling Prentice’s attendance at deposition and sanctions.  In addition, no “good cause” has been presented as to any documents requested to be produced at the deposition.  Finally, Plaintiff failed to submit a separate statement in compliance with Cal. Rules of Ct., Rule 3.1345. 

 

Sanctions: The Court denies the sanctions request because Plaintiff failed to engage in a reasonable and good faith meet and confer effort to schedule a mutually agreeable deposition date.  Although Plaintiff’s deposition notices requested that the deponent provide alternative dates if the noticed date was not good for the deponent, this one sentence, without more, is not a sufficient meet and confer effort.

 

Plaintiff made absolutely no efforts to contact Prentice’s counsel to discuss deposition dates after Plaintiff received Prentice’s objections based on unavailability.  If he had, the Motion likely could have been avoided as Prentice makes clear in his opposition that he is not refusing to appear for his deposition and that the issue has always been the timing of Plaintiff’s unilaterally noticed deposition dates and calendaring conflicts. 

 

Moreover, Prentice did provide alternative dates approximately one week after the Motion was filed.  There is no indication that Plaintiff made any attempts to contact Prentice’s counsel regarding these dates to attempt to resolve the issue.

 

Given Plaintiff’s failure to engage in a reasonable and good faith meet and confer effort, the Court declines to impose sanctions.

 

Prentice’s sanctions request is also denied.  The Motion is not entirely unmeritorious given that it took Prentice over 12 weeks to provide alternative dates for his deposition. 

 

Motion 2: Motion to Compel Deposition of Trujillo

 

The Motion demonstrates that Plaintiff served Trujillo with a Notice of Deposition for October 5, 2021, and that Trujillo failed to appear without having served a valid objection.  Trujillo’s email objection sent to Plaintiff’s counsel one day before the date of deposition was untimely pursuant to C.C.P. § 2025.410(a) and, thus, any error or irregularity in the deposition notice was waived.  C.C.P. § 2025.410(a).

 

As far as the meet and confer requirements, the Motion does not demonstrate that Plaintiff contacted Trujillo to inquire about the nonappearance pursuant to C.C.P. § 2025.450(b)(2).  However, given that Trujillo had advised Plaintiff the day before the deposition that he was standing by his objection, Plaintiff was aware of the reason for the nonappearance and no further inquiry was necessary.

 

The Court, therefore, grants the motion to compel Trujillo’s attendance at deposition and orders the parties to meet and confer (via telephone or email) to schedule a mutually agreeable date for Trujillo’s deposition to be set within 30 days of the date of the ruling on the Motion.

 

Without prejudice to a future motion, the Court declines to compel the production of documents at deposition as that issue is not properly before the Court.  The notice of motion seeks only an order compelling Trujillo’s attendance at deposition and for sanctions.  In addition, no “good cause” has been presented as to any documents requested to be produced at the deposition.  Finally, Plaintiff failed to submit a separate statement in compliance with Cal. Rules of Ct., Rule 3.1345. 

 

Sanctions: The Court denies the sanctions request because Plaintiff failed to engage in a reasonable and good faith meet and confer effort to schedule a mutually agreeable deposition date.  On October 4, 2021, Trujillo sent an email to Plaintiff stating that he objected to the upcoming deposition and specifically invited Plaintiff to meet and confer with him regarding the issues raised in his objections.  (Ex. C. to Plummer Decl.)  He also stated that he had previously sent an objection to the initial deposition noticed for August 6, 2021, but never received a response to his invitation to meet and confer as to those objections.

 

It appears that Plaintiff made absolutely no efforts to contact Trujillo via email or telephone to discuss deposition scheduling at any time before or after the deposition notices were served and that he made no efforts to meet and confer with Trujillo after he received Trujillo’s email.  Rather, Plaintiff proceeded to file the instant Motion on October 7, 2021, two days after the deposition date.  Although Plaintiff’s deposition notices requested that the deponent provide alternative dates if the noticed date was not good for the deponent, this one sentence, without more, is not a sufficient meet and confer effort.

 

Given Plaintiff’s failure to engage in a reasonable and good faith meet and confer effort, the Court declines to impose sanctions.

 

The moving party is ordered to give notice of these rulings.

 

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30-20-1159798

Caron VS Allstate Ins. Company

The motion of plaintiff Connie Caron for an order requiring the Court to reconsider its order of September 13, 2021 which granted the motion of defendant Allstate Insurance Company requiring plaintiff to furnish security under subdivision (a) of Code of Civil Procedure section 391.3, is DENIED.

 

Reconsideration of an order is authorized under Code of Civil Procedure section 1008.  Subdivision (a) of that section provides that “[w]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.”  It also requires the party making the application for reconsideration to state by affidavit (or declaration) “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

 

Subdivision (e) of section 1008 specifies that “[t]his section specifies the court's jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final.”  It adds that “[n]o application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”  In addition, a party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206.  

 

Plaintiff contends that new evidence has been submitted with the instant motion that require the Court to reconsider the prior order.  Plaintiff contends that, in bringing the prior motion, the defendant’s expert witness falsely contended that plaintiff’s vehicle was 20% rust and beyond repair.  Plaintiff contends that these false statements were intended to deceive and mislead the Court and support defendant’s claim of deterioration of the antique vehicles. 

 

Plaintiff purports to submit the declaration of an expert to rebut the opinion of defendant’s expert submitted with the earlier motion.  However, the purported expert is actually plaintiff, who attests to have 50 years extensive experience with antique motor vehicles and “both a scientific post-graduate degree and law school education” and “qualifying experience in evaluating legal and scientific findings necessary to support physical conclusions.”  Plaintiff also purports to have new evidence to rebut being classified as a vexatious litigant.

 

All defendants have opposed the motion, and both oppositions contend that the Court does not have jurisdiction to reconsider the prior order under section 1008 because the motion was not timely filed and served.  Defendant Allstate Insurance Company also contends that plaintiff failed to show any new or different facts, circumstances, or law to warrant reconsideration, particularly because the purported expert declaration submitted by plaintiff should be completely disregarded for several reasons, including lack of expertise of the plaintiff as an expert.  Additionally, defendant Allstate contends that the motion fails on the merits, as it is essentially a rambling opposition to the initial motion.

With regard to the timeliness, the notice of ruling on the underlying motion was served by counsel for Allstate by electronic transmission on September 14, 2021, which gave plaintiff until September 27, 2021 to file the notice of motion for reconsideration.  (The tenth day after September 14, 2021 was Friday, September 25, 2021, and the time is extended by two days for electronic service.  Code Civ. Proc.1005(b).)  However, the notice of motion and moving papers were not filed and served until October 26, 2021, which makes them untimely.  As a result, the Court denies the motion.  In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468.

 

Additionally, plaintiff has not shown that new or additional facts, circumstances, or law exist to support reconsideration.  In that the new evidence submitted by plaintiff to support the motion was plaintiff’s own declaration, plaintiff surely could have submitted it in connection with the initial motion, regardless of any tasks that plaintiff needed to complete to  prepare that declaration.  For this reason also, the court denies the motion.

 

 

 

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30-20-1172942

Velasquez Vs FCS US LLC

The motion by plaintiff, Ruben Velasquez (“plaintiff”), for an order compelling further responses from defendant FCA US LLC (“FCA”) to requests for production (“RFPS”) demands No. 7, 10, 16-19, 21, 34, 38, 41-42 and 51 in Set One is GRANTED in part and DENIED as MOOT in part.

 

Good causes exists for production of the documents itemized below which are relevant to the subject matter involved in this litigation and reasonably calculated to lead to the discovery of admissible evidence.

 

Preliminary Issue

 

Link to the wrong documents

 

Plaintiff states that the link FCA provided to access the responsive documents was mistakenly for an individual named Alejandro Granados. To the extent FCA has not already corrected this error, it is ordered to provide the link to the responsive documents for plaintiff within 5 days of the court hearing.

 

Plaintiff’s motion is GRANTED for RFPS Nos. 7, 10, 34, 38 and 42, relating to defendant’s warranty and vehicle repurchase policies, procedures and practices, as follows:

 

As to the above numbered requests, FCA states it has complied in full and produced all responsive documents. In Reply, plaintiff does not identify which of these specific RFPS it claims FCA did not comply with but instead argues overall that FCA has still failed to produce policies and procedures used in its evaluation of consumers’ requests for vehicle repurchases.

 

To the extent that it has not already done so, FCA is ordered to produce: “FCA’s written statements of policy and/or procedures used to evaluate customer requests for repurchase or replacement pursuant to “Lemon Law” claims, including ones brought under the Song-Beverly Consumer Warranty Act, from the date the subject vehicle was purchased or leased to the date the lawsuit was filed.”

 

Plaintiff’s motion is also GRANTED for RFPS 19 and 41, relating to FCA’s internal investigations and analysis of the defects plaguing the vehicle and establishing FCA’s prior knowledge of the defects, as follows:

 

To the extent it has not already done so, FCA is ordered to produce: A list or compilation of customer complaints in Defendant's electronically stored information database that are substantially similar to the alleged defects claimed by plaintiff in vehicles purchased in California for the same year, make and model of the subject vehicle. A substantially similar customer complaint would be the same nature of reported symptom, malfunction, dashboard indicator light, or other manifestation of a repair problem as the description listed in any work order or repair order for the subject vehicle, other than routine or scheduled maintenance items. The list provided by Defendant may be in a chart or spreadsheet format and shall include the VIN, date of repair visit, dealership or other reporting location, and text of the other customers' reported complaint, but shall not include the other customers' names, addresses, phone numbers, e-mail addresses, or other personal identifying information”.

 

Plaintiff’s motion is DENIED as MOOT for RFPS Nos. 16, 17, 18, 21, 51

 

For RFPS Nos. 16, 17, 18, 21, 51, FCA provided supplemental responses stating that it has conducted a diligent search and reasonable inquiry and is unable to comply because no such documents exist or have ever existed responsive to these requests. FCA listed in its Separate Statement in Opposition to the motion the data bases which it searched to reach this conclusion.  In Reply, plaintiff fails to provide evidence that the search was inadequate. As FCA has complied in full with respect to these requests, the motion is denied as moot.

 

FCA is ordered to produce the responsive documents within 30 days from the date of the hearing.

 

FCA is ordered to give notice.

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30-21-1227845

Hospitality Marketing Concepts, LLC Vs Peter Gorla

Plaintiff Hospitality Marketing Concepts, LLC’s Motion for Preliminary Injunction is DENIED as moot.  There is no dispute that the American Arbitration Association has administratively closed its file, which was based on defendant Gorla’s unilateral demand for arbitration.  Because the purpose of the Motion was to have the Court determine issues for arbitration, the Motion no longer needs to be resolved.

 

The Court declines to rule on defendant’s evidentiary objections 1-4 and 6.  The evidence objected to was not relied upon by the Court in making its ruling   Objection 5 is overruled.

 

The moving party is ordered to give notice of this ruling.  

 

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