1. law, govt and politics

SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 8, Honorable Maureen A. Folan, Presiding
Lorna Delacruz, Courtroom Clerk
Keith Rowan, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2180
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
DATE: February 17, 2015
TIME: 9 A.M.
PREVAILING PARTY SHALL PREPARE THE ORDER
(SEE RULE OF COURT 3.1312)
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LINE #
CASE #
CASE TITLE
RULING
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113CV242108 Comenity Bank vs. T.
Rowland
Return on Bench Warrant re: Order of
Examination
LINE 2
112CV226862 L. Trevillion vs. FCI
Continued by Court to February 24, 2015 at
Lender Services, INC., et 9:00 am
al
LINE 3
113CV251757 K. Garcia vs. The Off
Ramp-Flandria Cycle
Sales, Inc., et al
Giant Manufacturing Co. Ltd’s Motion to
Quash Service of Process is UNOPPOSED
and GRANTED. The attempted service of
process cross-complainant The Off RampFlandria Cycle Sales tried to effectuate of its
First Amended Complaint on moving party
did not comply with either the California
Code of Civil Procedure or the laws of
Taiwan.
LINE 4
113CV256853 E. Hinojos vs. Asset
Ventures, LLC, et al
Click Control Line 4 for Tentative Ruling
LINE 5
114CV272123 A. Askari vs. B.
Askarinam
Off calendar
LINE 6
114CV273777 Herspring, Inc., et al vs.
The Sturdivant Co., et al
Off Calendar; First Amended Complaint filed
2-11-15
LINE 7
113CV257136 V. Diaz vs. E. Perales
Click Control Line 7 for Tentative Ruling
LINE 8
114CV258609 R. So, et al vs. SJ Ranch
Golf Holding, LLC, et al
Click Control Line 8 for Tentative Ruling
LINE 9
114CV261700 C. Janakos vs. J. Sweeney, Continued to March 26, 2015 per Stipulation
DC
and Order
LINE 10 114CV266849 Old Trace Partners, L. P., Click Control Line 10 for Tentative Ruling
et al vs. T. Sorensen, et al
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 8, Honorable Maureen A. Folan, Presiding
Lorna Delacruz, Courtroom Clerk
Keith Rowan, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2180
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
LINE 11 114CV274410 A. Hahn, et al vs. City of
Oakland, et al
Off Calendar in light of parties’ stipulation to
transfer venue.
LINE 12 113CV254338 American Express
Centurion Bank vs. R.
Croteau
Plaintiff’s Motion to Enter Judgment
Pursuant to CCP Section 664.6 is
UNOPPOSED and GRANTED, good cause
having been shown. Defendant defaulted on
his obligations to make payments. Pursuant
to the parties’ stipulation signed in
December, 2013, the Court retained
jurisdiction to enter judgment if defendant
failed to fulfill the obligations under the
settlement. Plaintiff is awarded judgment
against defendant Richard Croteau aka
Richard A. Croteau in the principal sum of
$7,046.72 plus costs.
LINE 13 114CV265849 Portfolio Recovery
Associates, LLC vs. Z.
James
REASSIGNED TO DEPT. 21
LINE 14 110CV178154 W. Twelves vs.N. Graven, REASSIGNED TO DEPT. 21
et al
LINE 15 111CV213127 Professional Collection
REASSIGNED TO DEPT. 21
Consultants (PCC) vs. K.
Lauron, et al
LINE 16 113CV248533 R. Garcia vs. A. Moradi, et VACATED; DISMISSAL FILED
al
LINE 17 113CV253789 D. Kim vs. Toyota Motor OFF CALENDAR; MOVING PAPERS NOT
Sales, USA, Inc.
FILED
LINE 18 114CV272267 M. Rodriguez, et al vs.
Jewish Federation of
Silicon Valley
OFF CALENDAR BY MOVING PARTY;
First amended complaint filed 1-29-15
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 8, Honorable Maureen A. Folan, Presiding
Lorna Delacruz, Courtroom Clerk
Keith Rowan, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2180
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
LINE 19 114CV259639 D. Tenes vs. Fabrics R US DENIED. Moving party did not submit a
proof of service 5 days before the hearing.
Even if moving party could cure the service
defect, trial is scheduled to take place on
February 17, 2015, which is today. Plaintiff
would be unfairly prejudiced having to
proceed to trial without counsel. Rule of
Professional Conduct 3-700 A (2) provides: “
A member shall not withdraw from
employment until the member has taken
reasonable steps to avoid reasonably
foreseeable prejudice to the rights of the
client, including giving due notice to the
client, allowing time for employment of other
counsel, complying with rule 3-700(D), and
complying with applicable laws and rules”
Moving party argues there was a breakdown
in communication and strategy at a
mandatory settlement conference which
occurred on December 10, 2014. However,
counsel continued to represent her client at
another mandatory settlement conference on
January 28, 2015 so this Court doubts the
severity of the breakdown in communication.
The Court has discretion whether to grant or
deny the request to withdraw. .Manfredi &
Levine v Superior Court (1998) 66 Cal
App.4th 1128. Given the fact that: 1) trial is
supposed to commence today, 2) plaintiff
apparently has not retained other counsel to
assist her in this matter 3) the Court just
continued the previous December 2014 trial
date to February 17th 2015 at plaintiff’s
request and 4) plaintiff will be prejudiced if
her attorney withdrew at this late stage, the
Court denies moving party’s request to
withdraw.
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SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 8, Honorable Maureen A. Folan, Presiding
Lorna Delacruz, Courtroom Clerk
Keith Rowan, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2180
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
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Case Name: Ezequiel Hinojos v. Asset Ventures, LLC, et al.
Case No.:
1-13-CV-256853
This action arises out of foreclosure proceedings initiated against plaintiff Ezequiel
Hinojos’s (“Plaintiff”) property in San Jose. Plaintiff brings this action against defendant
Newport Beach Holdings, LLC (“Newport”), the former holder of the deed of trust secured by
the property, and other entities associated with the foreclosure. In his third amended complaint
(the “TAC”), Plaintiff asserts claims for (1) violation of Civil Code section 2924c, subdivision
(b)(1), (2) unlawful and attempted foreclosure, (3) cancellation of recorded instruments, (4)
unfair business practices, and (5) fraud against Newport.
Newport demurs to each of these causes of action on the ground that it fails to state a
claim (Code Civ. Proc. (“CCP”), § 430.10, subd. (e)), and moves to strike portions of the TAC
(CCP, § 436, subds. (a) and (b)).
I. Requests for Judicial Notice
Newport’s request for judicial notice of its certificate of good standing from the Nevada
Secretary of State is GRANTED. (Evid. Code, § 452, subd. (c); Waltrip v. Kimberlin (2008)
164 Cal.App.4th 517, 522, fn. 2 [taking judicial notice of corporate certificate of status]; Gamet
v. Blanchard (2001) 91 Cal.App.4th 1276, 1286-1287 [same].)
Plaintiff’s request for judicial notice of a prior discovery order in this action is
DENIED as the order, which pertains to discovery served by Plaintiff upon another defendant,
is not relevant to the instant motions by Newport. (See People ex rel. Lockyer v. Shamrock
Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters subject to judicial notice].)
Deemed admissions by another defendant are not binding against Newport. (See CCP, §
2033.410, subd. (b) [an admission by a party “is binding only on that party”].)
II. Demurrer to the First and Second Causes of Action
Plaintiff’s claims for violation of Civil Code section 2924c, subdivision (b)(1) and
unlawful foreclosure arise from alleged deficiencies in the foreclosure proceedings initiated
against his property. The Court (Hon. Carol Overton) sustained Newport’s previous demurrer
to these claims on the ground that Newport is not liable for violations related to the foreclosure
process, because Plaintiff’s allegations reflected that Newport assigned any interest it had in
the deed of trust to another defendant before the notice of default was recorded against
Plaintiff. In addition, the Court found that Plaintiff had failed to allege any facts in support of
his aiding and abetting, co-conspiracy, or joint venture theories of liability.
The instant demurrer to these claims is SUSTAINED WITHOUT LEAVE TO AMEND
for the same reasons. With respect to aiding and abetting, Plaintiff does not explain how the
passing of the deed of trust through Newport substantially assisted the foreclosing defendants
in wrongfully initiating foreclosure proceedings against Plaintiff’s property. (See Das v. Bank
of America, N.A. (2010) 186 Cal.App.4th 727, 744 [aiding and abetting liability requires the
provision of substantial assistance to the tortfeasor].) Such explanation is also required to state
a claim for conspiracy. (See Nicholson v. McClatchy Newspapers (1986) 177 Cal.App.3d 509,
521 [to state a claim for conspiracy, plaintiff must allege the damage resulting from the actions
taken pursuant to the conspiracy].) With respect to both of these theories, Plaintiff does not
explain how he was prejudiced by the defendants’ asserted scheme as required to state a claim
for wrongful foreclosure. (See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th
256, 272.) As to the joint venture theory, Plaintiff again fails to allege that Newport shared
profits and losses with the other defendants and had a right to joint control of the purported
venture. (See April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 819.)
III. Demurrer to the Third Cause of Action
The Court sustained Newport’s previous demurrer to Plaintiff’s claim for cancellation
of recorded instruments on the ground that Plaintiff failed to allege facts indicating that the
assignments of the deed of trust are void or voidable.
The instant demurrer to this claim is SUSTAINED WITHOUT LEAVE TO AMEND
for the same reasons. Plaintiff argues that because Newport did not register as a foreign LLC
pursuant to former Corporations Code section 17050, et seq., it had no right to transact
business in California at the time the assignments of the deed of trust were executed in 2012.
However, “[t]he purpose of the certificate of qualification is to facilitate service of process and
to protect against state tax evasion” (United Medical Management Ltd. v. Gatto (1996) 49
Cal.App.4th 1732, 1741), and Plaintiff cites no authority supporting the proposition that
Newport’s alleged failure to register would invalidate the assignments at issue. (See Perlas v.
Mortgage Elec. Registration Sys. (N.D. Cal., Aug. 5, 2010, No. C 09-4500 CRB) 2010
U.S.Dist.LEXIS 79705, *18-21 [rejecting this argument in the context of parallel section 2105
of the Corporations Code].) To the contrary, as previously noted by the Court, the
Corporations Code expressly provides that a foreign LLC may acquire deeds of trust without
registering. This was true under former Corporations Code section 17001, subdivision
(ap)(2)(G)-(H) just as it is today. Plaintiff’s alternative theory that Newport is not a valid
business entity in any state is inconsistent with the judicially noticeable certificate of good
standing and the prosecution of a lawsuit against Newport.
IV. Demurrer to the Fifth Cause of Action
The Court sustained Newport’s prior demurrer to Plaintiff’s fraud claim on the ground
that Plaintiff failed to allege any fraudulent conduct attributable to Newport.
The instant demurrer to the fifth cause of action is SUSTAINED WITHOUT LEAVE
TO AMEND for the same reason. Plaintiff’s allegations respecting Newport depend upon his
theories that Newport was not a valid business entity or was not authorized to transact business
in California, which fail for the reasons already discussed. In addition, Plaintiff fails to allege
any damages resulting from Newport’s alleged fraud.
V. Demurrer to the Fourth Cause of Action
The demurrer to the fourth cause of action for unfair competition is SUSTAINED
WITHOUT LEAVE TO AMEND, given that it depends upon Plaintiff’s other claims and
Plaintiff fails to allege any damages resulting from the asserted unfair competition.
(See Krantz v. BT Visual Images, LLC (2001) 89 Cal.App.4th 164, 178 [the viability of a
section 17200 claim stands or falls with the antecedent substantive causes of action]; Peterson
v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1590 [“only plaintiffs who have suffered
actual damage may pursue a private UCL action”].) The Court previously sustained Newport’s
demurrer to this claim as well.
VI. Motion to Strike
The motion to strike is MOOT in light of the rulings above.
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Case Name: Venessa Diaz a.k.a. Venessa Perales v Elias Perales
Case Number: 1-13-CV257136
I. Discovery Dispute
On November 3, 2014, Plaintiff served a supplemental discovery request asking Defendant to
“update all of his discovery responses, if his discovery responses to discovery requests…have
changed since Defendant…has served these discovery responses. If Defendant’s…discovery
responses have not changed, Plaintiff…requests Defendant..to so state.” The Request also
asks Defendant to provide any additional documents, not previously produced, responsive to a
previous document request. (Exhibit A)
On November 19, 2014, Defendant responded to the supplemental discovery request, set one
by stating:
“PLEASE TAKE NOTICE that Defendant…hereby responds to plaintiff’s Supplemental
Discovery Request, Set One. Defendant responds to this request for production with the
understanding that discovery has not yet been completed. Defendant responds to this request
for production in good faith and with the understanding that additional and further information
may subsequently be discovered and that, therefore, this production is responded to without
prejudice to petitioner’s rights to amend or modify said responses.
RESPONSES
Defendant has made a diligent search and reasonable inquiry to locate any additional
documents responsive to this demand. Defendant is unable to comply as no such documents are
in his possession. Defendant believes that additional documents responsive to this demand is
in Plaintiff’s possession, custody or control.”
On November 20, 2014, Defendant verified this response which was served by mail on
November 24, 2014. (Exhibit B)
Plaintiff’s counsel emailed defendant’s counsel on December 1st and 10th 2014 essentially
asking him to confirm that Defendant’s responses to all previous discovery had not changed.
(Exhibit C) Defendant’s counsel did not respond to this email. (Declaration of Plaintiff’s
Counsel, paragraph 5)
On January 9, 2015, Plaintiff served this Motion to Compel Defendant to Produce Further
Responses to Supplemental Discovery Request, Set One and for Sanctions. The Motion is
timely as the last set of verified responses were served by mail on November 24, 2014. (41
days) (Code of Civil Procedure Section 1013)
Defendant submitted a belated opposition to this Motion..
II. Legal Analysis
The instant motion appears to seek further responses to form and special interrogatories
previously served as well as requests for admission previously served. This very discovery
was the subject of an earlier Motion to Compel which resulted in an order by Judge Manoukian
on September 2, 2014.
Although plaintiff is entitled to seek supplemental interrogatories pursuant to CCP Section
2030.070, there is no similar provision for supplemental requests for admissions.
In fact, the party who initially responded to the admissions can only withdraw or amend their
answers by leave of Court. CCP 2033.300 Parties are not allowed to automatically update
their responses upon learning additional information.
Plaintiff cites Burch v. Gombos (2000) 82 Cal. App.4th 352 in support of his argument he can
seek supplemental requests for admissions. However, Burch is not on point and is factually
distinguishable from this case. The requests for admissions in Burch asked for information
known at the time the request was made. At trial, the party who responded to the request for
admission introduced evidence that strayed from the initial request for admission response.
Appellant argued respondent had a duty to update his responses once he discovered additional
information. The Appellate Court rejected that argument finding that the admission was
limited to respondent’s knowledge as of the time the admission was made; it was not a promise
respondent would not locate evidence in the future. Respondent had no duty to update his
responses.
No statute or case authorizes a party to compel supplemental responses to requests for
admissions. This Court will not require same.
Plaintiff is entitled to supplemental interrogatory responses. Defense counsel argued that his
supplemental response covered all of the requests. However, that is not apparent from his
response which is only directed to the document requests, not the interrogatories. Defendant
made no affirmative statement assuring plaintiff he does not have any updated/different
responses to the interrogatories to which he earlier responded. The Court therefore orders
defendant to submit code compliant supplemental interrogatory responses within 15 days of the
date of this order.
As plaintiff only partially succeeded in this motion, plaintiff will be entitled to monetary
sanctions against defendant and his counsel in the amount of $300 payable within 30 days of
the date of this order. CCP Section 2030.300 (d).
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Case Name: Raymond So et al v SJ Ranch Holding, LLC et al
Case No. 114CV258609
Plaintiffs have filed this Motion for Terminating Sanctions, Evidentiary Sanctions, and for Monetary
Sanctions or, in the Alternative, to Compel Kristy Park to Answer Certain Questions. Defendant,
Kristy. Park, filed no formal opposition to the Plaintiffs’ Motion. However, her former counsel has
filed objections. 1
All parties are reminded that all papers must comply with Rule of Court 3.1110(f). 2
All parties are reminded that “[a] motion concerning interrogatories, inspection demands, or admission
requests must identify the interrogatories, demands, or requests by set and number.” Rule of Court
3.1345(d).
I.
Statement of Facts.
Defendant SJ Ranch Golf Holding, LLC (“Defendant Ranch”) owns a golf course and clubhouse
located in San Jose, California. Defendant Kristy Park (Ms. Park) was the General Manager of
Defendant Ranch during the period of time relevant to this case. Plaintiffs Raymond So, Alvin Leung,
Eric Fruen, Timothy Pires, and Vanesa Arellano are five former employees of Defendant Ranch.
(Defendant’s Opposition, p. 2-3).
The case arises out of a dispute regarding the payment of tips to Plaintiffs from large events. Defendant
Ranch charged clients an additional 20% of the cost of those events. Defendant Ranch claims this
charge was not a gratuity, advised customers the charge was not a gratuity, and advised customers to tip
the servers. Plaintiffs claim Ms. Park personally told customers the 20% charge was a gratuity and was
split between the servers, and instructed event coordinators to tell customers the same. (Id.)
II. Discovery Dispute.
Ms. Park was deposed by Plaintiffs on September 10, 2014. During that deposition, counsel had a
disagreement as to questions regarding Ms. Park’s termination from Defendant Ranch. Aguiar Decl.
¶1.
On October 9, 2014, Plaintiffs filed a motion to compel further answers, and Ms. Park agreed to a
continuance of the deposition on December 12, 2014, after previously scheduled mediation. (Aguiar
Decl. ¶2, Skogen Decl. ¶9.)
The parties attended an unsuccessful mediation on December 11, 2014. (Aguiar Decl. ¶5, Skogen Decl.
¶10).
On December 12, 2014, Ms. Park did not appear for the continued deposition. Ms. Park claims she
intended to appear but confused the dates. (Aguiar Decl. ¶6-7, Skogen Decl. ¶11-12.)
On December 19, 2014, counsel for Defendants filed a motion to be relieved of representing Ms. Park,
and the motion was granted. (Aguiar Decl. ¶8, Skogen Decl. ¶12, Defendant’s Ex. A.)
“The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery
shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”
Rule of Court 3.1348(b).
1
“Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending
below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided.
Pages from a single deposition and associated exhibits must be designated as a single exhibit.”
2
On January 21, 2015, Plaintiffs filed this motion for terminating sanctions, evidentiary sanctions, and/or
monetary sanctions or, in the alternative, to compel Kristy Park to answer certain questions and request
for monetary sanctions. (Plaintiff’s Memo of Points and Authorities.)
Defendant Ranch filed an opposition on February 2,2015. (Defendant’s Opposition.)
III. Analysis.
A. Meet and Confer
A code-compliant attempt to meet and confer is an explicit prerequisite when attempting to compel
attendance/compliance with deposition (Code Civ. Proc. § 2025.450(b)). Under California Code of
Civil Procedure § 2016.040, “a meet and confer declaration in support of a motion shall state facts
showing a reasonable and good faith attempt at an informal resolution of each issue presented by the
motion.” The failure to attempt to meet and confer where required is an explicitly named misuse of the
discovery process. (See Code Civ. Pro. § 2023.010(i)).
Here, the Court finds that the Plaintiff has sufficiently met and conferred. (Plaint. Ex. B).
B. Plaintiff’s Motion to Compel Ms. Park’s Attendance at Deposition
Pursuant to Code of Civil Procedure section 2025.450(a): “If, after service of a deposition notice, a
party to the action or an officer, director, managing agent, or employee of a party, or a person
designated by an organization that is a party under Section 2025.230, without having served a valid
objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce
for inspection any document, electronically stored information, or tangible thing described in the
deposition notice, the party giving the notice may move for an order compelling the deponent's
attendance and testimony, and the production for inspection of any document, electronically stored
information, or tangible thing described in the deposition notice.”
Here, where this motion to compel is unopposed and Ms. Parks failed to appear for a properly noticed
deposition, this motion is appropriate.
According, Plaintiff’s Motion to Compel Ms. Park’s Attendance at Deposition is GRANTED.
Defendant Ms. Park shall provide Plaintiff with firm dates for her availability for one-hour continued
deposition within 20 court days of this order. Defendant Ms. Park shall make herself available for said
one-hour continued deposition within 30 court days of this order.
C. Non-Monetary Sanctions
Two facts are prerequisite to the imposition of non-monetary sanctions: (1) there must be a failure to
comply with a court order; and (2) the failure must be willful. (See Liberty Mutual Fire Ins. Co. v. LcL
Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102). Even where these facts are present, however,
the trial court has broad discretion in imposing discovery sanctions. (See Reedy v. Bussell (2007) 148
Cal.App.4th 1272, 1293). In exercising this discretion, the court of appeal has indicated that the trial
court should consider both the conduct being sanctioned and its effect on the party seeking discovery.
(See Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992). There are some cases which
suggest that non-monetary sanctions may be granted absent an existing order. (See New Albertsons,
Inc. v. Superior Court, (2008) 168 Cal. App. 4th 1403, 1424, 86 Cal. Rptr. 3d 457, 473 (citing (Do It
Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 9
Cal.Rptr.2d 396; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 51 Cal.Rptr.2d 311 ; Pate v.
Channel Lumber Co. (1997) 51 Cal.App.4th 1447, 59 Cal.Rptr.2d 919; see Williams v. Russ (2008) 167
Cal.App.4th 1215, 84 Cal.Rptr.3d 13 ; Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 45
Cal.Rptr.3d 265 ; see also Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 26
Cal.Rptr.3d 831.)) However, all of these cases involve numerous, egregious ongoing discovery abuses.
(See Id.) What’s more, each case included articulable evidence on record that such egregious conduct
was willful. (See Id.) The New Albertsons Court stated that this articulable evidence of willful conduct
was necessary in making a determination that non-monetary sanctions are appropriate without a prior
order which the sanctioned party failed to obey. (See New Albertsons, Inc. v. Superior Court (2008)
168 Cal. App. 4th 1403, 1428, 86 Cal. Rptr. 3d 457, 476-77).
Additionally, the trial court should “attempt to tailor the sanction to the harm caused by the withheld
discovery.” Id. The Court’s discretionary authority in determining the appropriate sanction is limited
by the principle that discovery sanctions are meant to be remedial rather than punitive. (See Kahn v.
Kahn (1977) 68 Cal.App.3d 372, 381). Put another way, the discretionary imposition of a sanction is
proper when it is suitable and necessary to enable the party seeking discovery to obtain the objects of
the discovery sought, but not when it places the prevailing party in a better position than if discovery
had been obtained. (See Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 958).
Finally, non-monetary sanctions are imposed upon an incremental bases depending upon the severity of
the violation. (See Doppes 174 Cal.App.4th at 992). “If a lesser sanction fails to curb misuse, a greater
sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher
sanctions until the sanction is reached that will curb the abuse.” Id. (internal quotation marks and
citations omitted).
In the discovery context, willfulness may be found where the responding party “understood his [or her]
obligation, had the ability to comply, and failed to comply.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d
771, 787). “A conscious or intentional failure to act, as distinguished from accidental or involuntary
noncompliance, is sufficient to invoke a penalty.” (Id. at 787-788 (citing Snyder v. Sup. Ct., 9
Cal.App.3d 579, 587 (1970)).
1. Evidentiary Sanctions
Where evidentiary sanctions are appropriate under the two-part general standard for non-monetary
sanctions explained above, the Court may prohibit a party from introducing designated matters in
evidence. (See Code Civ. Pro. § 2023.030(c)). Where a party fails to comply or fails to provide a
timely response to a granted order compelling responses to a discovery motion, the Court may impose
sanctions including evidentiary sanctions. (See Code Civ. Pro. § 2031.320(c)(Regarding evidentiary
sanctions where a party fails to permit inspection despite previous agreement); Code Civ. Pro. §
2025.450(h)(Regarding evidentiary sanctions where a deponent fails to produce document without valid
objection); Code Civ. Pro. § 2025.480(k)(Regarding evidentiary sanctions where deponent fails to
answer any question or produce any document. The sanctions must be proportionate to the conduct that
is being sanctioned. (See McGinty v. Superior Court (6th Dist. 1994) 26 Cal. App. 4th 204, 211).
Strong evidence of the appropriateness of evidentiary sanctions can include: a long history of abuse of
process by the non-moving party, continuous willful obstructive conduct by the non-moving party, or
egregious interference with the opposing party's ability to make a case. (See Id. At 212). The Court
should consider the impact of excluding the evidence at trial and the extent to which it prejudices the
sanctioned party in determining appropriateness. (See Id. at 212-213). However, the fact that a sanction
is seriously detrimental to the sanctioned party does not itself make an evidentiary sanction
inappropriate. (See Pate v. Channel Lumber Co. (1997) 51 Cal. App. 4th 1447, 1455). This is because
the detrimental effects of an evidentiary sanction are incidental to the proper objective of appropriate
evidentiary sanctions. (See Id.).
Here, where there is no pre-existing order and much less substantial sanctions available, the failure of
Ms. Park to attend one deposition does not rise to the level of extreme discovery abuse required for
terminating sanction without such an order. Even were there an order here, this Court is not certain that
this single failure would rise to a level of abuse sufficient for this ultimate sanction. Plaintiff has also
provided insufficient evidence to show that Defense intended for Ms. Park to not show up for her
deposition. Thus, it is unlikely that the acts here were willful.
Accordingly, Plaintiff’s motion for evidentiary sanctions is DENIED.
2. Terminating Sanctions
Code of Civil Procedure, § 2023.030(d) states that: “the Court may impose terminating sanctions by:
[an] order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the
discovery process… [an] order staying further proceedings by that party until an order for discovery is
obeyed…[an] order dismissing the action, or any part of the action, of that party…[or an] order
rendering a judgment by default against that party. (Code Civ. Pro. § 2023.030(d)). Where a party fails
to comply or fails to provide a timely response to a granted order compelling responses to a discovery
motion, the Court may impose sanctions including terminating sanctions. (See Code Civ. Pro. §
2031.320(c)(Regarding terminating sanctions where a party fails to permit inspection despite previous
agreement); Code Civ. Pro. § 2025.450(h)(Regarding terminating sanctions where a deponent fails to
produce document without valid objection); Code Civ. Pro. § 2025.480(k)(Regarding terminating
sanctions where deponent fails to answer any question or produce any document).
However, ordering terminating sanctions is not an action this Court can undertake without careful
consideration; and only in circumstances where a violation is willful, preceded by a history of abuse
and the evidence shows that a less severe sanction would not produce compliance with the discovery
rules. (See Van Sickle v. Gilbert (2011) 196 Cal. App. 4th 1495, 1516 (Granting terminating sanctions
where a lawyer failed to respond to numerous special interrogatories and demands for production of
documents, failed to respond to motion to compel discovery, failed to obey a court order to provide
discovery, and failed to respond to demands for production even after filing motion for relief from
default.); Doppes 174 Cal. App. 4th at 992 (Holding that trial court abused its discretion in failing to
grant terminating sanctions against defendant who engaged in persistent and serious misuse of the
discovery process); Mileikowsky v. Tenet Healthsystem (2005) 128 Cal. App. 4th 262, 279 (Holding
that terminating sanctions were not an abuse of discretion where appellant repeatedly failed to answer
discovery requests despite numerous extensions sought and granted, the issuance of court orders and
monetary sanctions); Sec. Pac. Nat. Bank v. Bradley (1992) 4 Cal. App. 4th 89 (Overturning trial court
on error for granting terminating sanctions where defendant's failure to file separate responsive
statement was not willful)). Where these conditions are met, the Court is justified in ordering
terminating sanctions. (See Id).
Here, where there is no pre-existing order and far less substantial sanctions available, the failure of Ms.
Park to attend one deposition does not rise to the level of extreme discovery abuse required for
terminating sanction without such an order. Even were there an order here, this Court is not certain that
this single failure would rise to a level of abuse sufficient for this ultimate sanction. Plaintiff has also
provided insufficient evidence to show that Defense intended for Ms. Park to not show up for her
deposition. Thus, it is unlikely that the acts here were willful. Plaintiff is advised to, in the future,
make at least one attempt at remedying their discovery issues through available avenues—such as a
Motion to Compel.
Accordingly, Plaintiff’s request for terminating sanctions is DENIED.
C. Monetary Sanctions
Plaintiff makes a request for monetary sanctions in their motion in the amount of $12,724.20. The
request is code-compliant.
Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion,
identify every person, party, and attorney against whom the sanction is sought, and specify the type of
sanction sought. The notice of motion shall be supported by a memorandum of points and authorities,
and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction
sought.” (See Rule of Court 2.30). The party’s motion must also state the applicable rule that has been
violated. (Id.).
In determining the amount for monetary sanctions the determination of a reasonable attorney’s fee
involves multiplying the time spent and reasonable hourly compensation of each attorney involved in
the presentation of the case. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49). Sanctions should be
awarded only for expenses actually incurred. (See Tucker v. Pacific Bell Mobile Services (1st Dist.
2010) 186 Cal.App.4th 1548, 1551).
Plaintiff cites CCP § 2025.450(g) in support of their request for sanctions. This is appropriate authority
for the grant of monetary sanctions where a party fails to attend a properly noticed deposition.
However, the amount of monetary sanctions requested is not reasonable. The 6 hours of waiting time
and expenses for accommodations will not be granted. Plaintiff was already in town for a mediation.
(Aguiar Decl. ¶ 4; Skogen Decl ¶ 9-11). Thus, all travel expenses are unreasonable except for the 3
hours spent traveling to and from Ms. Park’s deposition. What’s more, given that this motion is
primarily an unfounded request for terminating and evidentiary sanctions, this Court will treat the
reasonable time for preparing the motion as the reasonable time for preparing a discovery motion as
standard as a Motion to Compel—1 hour for each motion and 1 hour for both the separate statements.
Thus, the appropriate amount for monetary sanctions is $2,995.20.
Ms. Parks has provided no justification for her failure to attend this deposition beyond the fact that she
mixed up the dates. This is not substantial justification sufficient to relieve her from monetary
sanctions.
Accordingly, Plaintiff’s request for monetary sanctions in the amount $2,995.20 is GRANTED.
Plaintiff’s Motion to Compel Ms. Park’s Attendance at Deposition is GRANTED. Defendant Ms. Park
shall provide Plaintiff with firm dates for her availability for one-hour continued deposition within 20
court days of this order. Defendant Ms. Park shall make herself available for said one-hour continued
deposition within 30 court days of this order.
Plaintiff’s motion for evidentiary sanctions is DENIED.
Plaintiff’s motion for terminating sanctions is DENIED.
Plaintiff’s request for monetary sanctions is GRANTED in the amount of $2,995.20.
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Case Name: Old Trace Partners, L.P. et al v Sorensen et al
Case Number: 114CV26684
Defendants’ Motion to Award Liquidated Damages and Attorney’s Fees against Plaintiffs
Brief Factual and Procedural Background
In 2007, Defendants promoted an investment to purchase and develop an office building in Los Altos,
California. Plaintiffs allege material false statements were made in the investment prospectus.
The dispute is governed by an Operating Agreement that was amended on October 31, 2012, and
requires arbitration.
Plaintiffs filed their complaint on June 19, 2014. On September 30, 2014, Defendants filed a Petition to
Compel Arbitration. On November 17, 2014, the Court ordered the matter to arbitration. Judge
Overton’s order specifically states: “All claims not subject to arbitration shall be stayed pending
conclusion of the arbitration or further order of the Court.”
The parties are now back in court, and currently dispute whether or not it is appropriate to award
liquidated damages under Section 14.10 of the Operating Agreement, which awards liquidated damages
for failing to arbitrate a dispute. Defendants further demand attorney’s fees pursuant to Section 14.20
of the Operating Agreement.
The Court notes that defendants’ reply is 4 days late. And, although the Court reviewed the reply, the
Court does not find it persuasive.
Legal Analysis
The Court cannot act on the present requests because Judge Overton’s order specifically provided that
all claims not subject to arbitration shall be stayed pending conclusion of the arbitration or further order
of this Court. The stay has not been lifted. And, case law is clear that if a lawsuit is stayed pending a
decision through binding arbitration, “the action at law sits in the twilight zone of abatement with the
trial court retaining merely vestigial jurisdiction over matters submitted to arbitration.” (Brock v. Kaiser
Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1796.
This “vestigial jurisdiction” consists of the court being empowered to “appoint arbitrators if the method
selected by the parties fails (§ 1281.6); grant a provisional remedy ‘but only upon the ground that the
award to which an applicant may be entitled may be rendered ineffectual without provisional relief’ (§
1281.8, subd. (b)); and confirm, correct or vacate the arbitration award (§ 1285). Absent an agreement
to withdraw the controversy from arbitration, however, no other judicial act is authorized. [Citation.] [¶]
In the interim, the arbitrator takes over. It is the job of the arbitrator, not the court, to resolve all
questions needed to determine the controversy. [Citations.] The arbitrator, and not the court, decides
questions of procedure and discovery. [Citations.] It is also up to the arbitrator, and not the court, to
grant relief for delay in bringing an arbitration to a resolution.” (Titan/Value Equities Group, Inc. v.
Superior Court (1994) 29 Cal.App.4th 482, 487–488.)
Appellate courts have therefore routinely rejected parties' efforts to have courts overstep their limited
jurisdiction in cases that are stayed pending binding contractual arbitration. (See, e.g., MKJA, Inc. v.
123 Fit Franchising, LLC (2011) 191 Cal.App.4th 643, 661 [court cannot issue order lifting stay based
upon party's claim that it cannot afford contractual arbitration]; Finley v. Saturn of Roseville (2004) 117
Cal.App.4th 1253, 1259–1260, (Finley ) [order compelling review of decision by second arbitrator
which was provided for in arbitration agreement was unauthorized]; Blake v. Ecker (2001) 93
Cal.App.4th 728, 737 [remedy for failure to timely prosecute arbitration was in the arbitration
proceeding, not through court order], disapproved on other grounds in Le Francois v. Goel (2005) 35
Cal.4th 1094, 1107, fn. 5, 29 Cal.Rptr.3d 249, 112 P.3d 636; Titan/Value Equities, supra, 29
Cal.App.4th 482, 35 Cal.Rptr.2d 4 [order compelling arbitration to proceed under stated conditions
involving potential reinstatement to trial calendar was in excess of court's jurisdiction].)" Optimal
Markets, Inc. v. Salant, 221 Cal. App. 4th 912, 923-24.
This Court has no jurisdiction to consider defendants’ requests. Accordingly, their Motion is DENIED.
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