COMPLAINT May 09, 2023 (2024)

Case

Aug 06, 2024 |T03 - Torts - Defective Premises - Private - Other |NNI-CV24-6033683-S

Case

KOCHISS, GEOFFREY v. TURNER, JULIET

Aug 06, 2024 |T03 - Torts - Defective Premises - Private - Other |UWY-CV24-6079304-S

Case

CORTES, GABRIEL Et Al v. PEREZ, TANYA M

Aug 05, 2024 |V01 - Vehicular - Motor Vehicles - Driver and/or Passenger(s) vs. Driver(s) |UWY-CV24-6079278-S

Case

BRADY, KATHLEEN R v. MATHEW, MEHR E

Aug 05, 2024 |V01 - Vehicular - Motor Vehicles - Driver and/or Passenger(s) vs. Driver(s) |NNI-CV24-6033655-S

Case

H.N.S. MANAGEMENT COMPANY, INC. D/B/A CT TRANSIT v. WYLIE, CHRISTOPHER

Aug 08, 2024 |S50 - Small Claims - Small Claims - Tort - Motor Vehicle |NNH-CV24-6146310-S

Case

LIM, ROBERT Et Al v. BATTLE, DIANE

Aug 05, 2024 |V01 - Vehicular - Motor Vehicles - Driver and/or Passenger(s) vs. Driver(s) |NNH-CV24-6146177-S

Case

YARWAYE, JARED v. INGA, MORALES PEDRO Et Al

Aug 09, 2024 |V01 - Vehicular - Motor Vehicles - Driver and/or Passenger(s) vs. Driver(s) |NNH-CV24-6146346-S

Case

SANFORD, GERALD v. KEIGHLEY, IRVING Et Al

Aug 05, 2024 |V01 - Vehicular - Motor Vehicles - Driver and/or Passenger(s) vs. Driver(s) |UWY-CV24-6079269-S

Case

WESTERBAND, KIMBERLY Et Al v. CITY OF NEW HAVEN

Aug 08, 2024 |T11 - Torts - Defective Premises - Public - Snow or Ice |NNH-CV24-6146314-S

Ruling

Crystal Harris et al vs. Coen Rohde et al

Aug 08, 2024 |CU23-04924

CU23-04924Second petition for approval of compromise of minor’s claimTENTATIVE RULINGThe petition is denied without prejudice.The second petition is again inconsistent with the Declaration of David A. Kleczek whichis attached as an exhibit to the petition. In response to Question 18 of the petition whichseeks information regarding the disposition of the balance of the settlement to theclaimant, box 18(b)(7) is checked, indicating the balance will be deposited into a trust onbehalf of the minor; however, the terms of the proposed trust are not attached to thePetition as Attachment 18(b)(7) as required; rather, the name of a banking institution islisted but no trust information is provided. In Mr. Kleczek’s declaration at ¶14, it isindicated that the proceeds will be deposited into a blocked account; however, Question18(b)(2) is blank, although the name of the financial institution is provided in Attachment18(b)(7).The minor’s name is listed with two different spellings throughout the pleadings. In thecaption of the First Amended Complaint, it is listed as “Dillion” but in the body of thecomplaint, it is spelled “Dillon.” In Mr. Kleczek’s declaration it is spelled “Dillion” in thecaption, “Dillon” in ¶¶ 1-7, and “Dillion” in ¶¶ 8-9.Question 12(b)(5)(b) is blank. This should contain the minor’s medical providers.

Ruling

COLLETTI vs SCHAAF

Aug 08, 2024 |CVSW2302225

PLAINTIFF'S MOTION TO QUASHDEFENDANT'S BUSINESS RECORDSCVSW2302225 COLLETTI VS SCHAAF SUBPOENA TO PINNACLECOUNSELING AND TESTING CENTERAND FOR SANCTIONSTentative Ruling:See 1.

Ruling

TERESA CISNEROS VS ALEXANDER ARJOMAND

Aug 06, 2024 |20STCV26208

Case Number: 20STCV26208 Hearing Date: August 6, 2024 Dept: 96 Plaintiff moves to deem notice of appeal filed as of June 14, 2024. There is no opposition. The motion is granted. Defendant moves for costs based on post 998 costs. The court informed counsel that the court had insufficient foundation for post-998 costs and allowed Defendant to file by August 2, 2024 sufficient support for post 998 costs. No papers have been filed. Defendants motion for costs is denied without prejudice.

Ruling

JENNIFER KIM VS DAVID CONWELL FOOR

Aug 06, 2024 |23TRCV03700

Case Number: 23TRCV03700 Hearing Date: August 6, 2024 Dept: M LOS ANGELES SUPERIOR COURT SOUTHWEST DISTRICT Honorable Gary Y. Tanaka Tuesday, August 6, 2024 Department M Calendar No. 9 PROCEEDINGS Jennifer Kim v. David Conwell Foor, et al. 23TRCV03700 Jennifer Kims Motion to Set Aside Dismissal TENTATIVE RULING Jennifer Kims Motion to Set Aside Dismissal is granted. Background Plaintiff filed the Complaint on November 7, 2023. Plaintiff alleges the following facts. Plaintiff and Defendant were involved in a motor vehicle accident. Motion to Set Aside Dismissal CCP § 473(b) states, in relevant part: The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. . . . Plaintiff moves for an order granting relief from the entry of dismissal. The motion is brought pursuant to CCP § 473 et seq. on the grounds that the dismissal was entered due to the mistake, inadvertence, surprise, and/or neglect of Plaintiffs counsel. Plaintiff has set forth facts to support a showing that the dismissal was entered due to the mistake, inadvertence, surprise, and/or neglect of Plaintiffs counsel. Plaintiffs counsel failed to appear for the case management conference due to counsels calendaring mistake. (Decl., Brian W. Lee, ¶¶ 3-4.) The motion must be granted pursuant to the mandatory provision of CCP § 473(b). The dismissal is hereby set aside. Plaintiff is ordered to give notice of this ruling.

Ruling

SHERLEEN HUDSON, AN INDIVIDUAL VS MONA ALCALA, AN INDIVIDUAL, ET AL.

Case Number: 19STCV38804 Hearing Date: August 7, 2024 Dept: 29 Hudson v. Alcala 19STCV38804 Defendants Motion to Compel Plaintiff to Execute Authorization, or alternatively, Authorizing Release of Plaintiffs Medical Records Tentative The motion is denied. Background On October 30, 2019, Sherleen Hudson (Plaintiff) filed a complaint against Mona Alcala, Carlos Alcala (collectively Defendants), and Does 1 through 50 for negligence arising out of an automobile accident occurring on October 30, 2017. On May 26, 2021, and February 14, 2022, Defendants filed answers. On July 3, 2024, Defendants filed this motion seeking an order (1) directing Plaintiff to sign a HIPPA Authorization for Release of Records or in the alternative, (2) authorizing the Department of Veterans Affairs to release Plaintiffs medical records. No opposition has been filed. Legal Standard The process by which a party may obtain discovery from a person who is not a party to the action is through a deposition subpoena. (Code Civ. Proc., § 2020.010, subd. (b).) Personal service of the deposition subpoena on the non-party is required. (Code Civ. Proc., § 2020.220, subd. (b).) A deposition subpoena may command any of the following: (a) Only the attendance and testimony of the deponent &. (b) Only the production of business records for copying &. (c) The attendance and the testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. (Code Civ. Proc., § 2020.020.) Except as specifically modified by the Civil Discovery Act, the provisions of Code of Civil Procedure sections 1985 through 1997 apply to deposition subpoenas. (Code Civ. Proc., § 2020.030.)¿ Code of Civil Procedure section 1987.1, subdivision (a), states: If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. Discussion Motion to Compel Authorization Defendants cite no statutory authority for an order compelling a party to sign an authorization for the release of their medical records, and the Court is aware of none. Generally, courts lack the power to order civil discovery by a method that is not authorized in the Code of Civil Procedure. (Haniff v. Super. Ct. (2017) 9 Cal.App.5th 191, 200.) The Court is aware of two cases that are potentially on point. In both cases, the superior court had issued an order compelling a party to provide an authorization for disclosure of medical records, but in neither case did the Court of Appeal directly address whether the superior court had acted properly in doing so (or had the authority to do so). Rather, in Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th 913, the Court of Appeal affirmed a sanction against a party who had violated the court order to provide the authorization, without ruling on whether the underlying order was properly issued. And in Coats v. K-Mart Corp. (1989) 215 Cal.App.3d 961, the issue on appeal related to the statute of limitations, although the superior court had issued an order for a compelled authorization for the records of a decedent. (The Court is also aware of a third case, Little v. Superior Court (1968) 260 Cal.App.2d 311, in which the Court of Appeal reversed (on other grounds) a judgment of contempt for failing to comply with an order for a compelled authorization.) Of course, cases do not provide authority or guidance on issues that the appellate court did not address or decide. There is a statutorily authorized procedure for obtaining records from a non-party: issuing and enforcing a subpoena, whether under Code of Civil Procedure section 1987.1 or section 2020.020. Indeed, in the Miranda case, the Court of Appeal was puzzled regarding why this standard procedure had not been followed. (Miranda, supra, 117 Cal.App.4th at 918 fn. 2.) This alternative is discussed below. Given the absence of statutory authority to compel an authorization and the presence of an express statutory alternative, the Court DENIES Defendants motion for an order compelling Plaintiff to provide an authorization for the release of her medical records to Defendants. Motion to Authorize the Department of Veterans Affairs to Release Records Alternatively, Defendants request an order authorizing the Department of Veterans Affairs to release Plaintiffs medical records. Such an order is not authorized by the Civil Discovery Act. If Defendants seek records from a third party, they must issue a subpoena; if the third party does not comply, Defendants can then bring a motion to obtain an order compelling compliance with the subpoena. Those are the procedures set forth in the Code of Civil Procedure; Defendants cannot skip over the step of issuing a subpoena and simply seek a Court order to authorize or permit or compel a third party to take an action. Absent a validly issued and served subpoena, the Court has no jurisdiction to authorize or compel a third party to do anything. Accordingly, the Court DENIES the motion for an order authorizing the Department of Veterans Affairs to release Plaintiffs medical records. Conclusion The Court DENIES Defendants motion. Moving party to provide notice.

Ruling

Dvorak vs Hope Publications LLC

Aug 09, 2024 |24CV47332

24CV47332 DEFENDANT’S SPECIAL MOTION TO STRIKEOn April 22, 2024, Michael Dvorak (“Plaintiff”) filed a complaint against HopePublications LLC, dba Calaveras Enterprise (“Defendant”) alleging causes of action for:1) defamation, 2) libel, 3) false light, 4) defamation “per se”, 5) defamation “per quod”, 6)intentional infliction of emotional distress, 7) negligent infliction of emotional distress,and 8) damages.Now before the Court is Defendant’s special motion to strike pursuant to Code Civ.Procedure section 425.16.Defendant’s Request for Judicial Notice is GRANTED in full.I. BackgroundPlaintiff is a member of the Board of Directors of the Calaveras County ResourceConservation District (“Calaveras RCD”). (RJN ¶ 12, Ex. 3.) He was appointed to theseven-member board in January 2022 by the County Board of Supervisors. (Id., Ex. 4.)Defendant is a publishing company that operates a locally owned newspaper called theCalaveras Enterprise (“Newspaper”). (Complaint ¶¶ 12-13.) The Newspaper is printedonce a week but is also available daily online. (Id. ¶ 14.) Plaintiff alleges that in theOctober 11, 2023 edition, the Newspaper published an “erroneous felony booking log”,as follows: Michael Dvorak, 46, at 11:42 a.m. on the 10200 block of Pool Station Road in San Andreas and booked on Vandalism deface property a felony charge. (Complaint ¶¶ 17, 18, Ex. A.)Plaintiff alleges that after a friend notified him of this report in the newspaper, hebecame mortified and suffered emotional distress. Plaintiff further alleges that on orabout November 3, 2023, Plaintiff emailed the Defendant to take down the erroneousbooking log post from their online website (Complaint, Ex B.) but Defendant failed torespond.Plaintiff alleges that the Defendant uses the local sheriff / county office “Media Bulletin”to publish local arrest / booking logs and that in this instance, Defendant filed to verifythe County’s information. After some apparent back and forth, on or about January 31,2024, Plaintiff received a response from Sheriff DiBasilio and Deputy County CounselKara Frank, stating: “The Sheriff’s Office cannot send a booking sheet because, as you also stated, you were not booked so there is no booking sheet.” (Complaint ¶ 29, Ex. C.)On or about February 5, 2024, Defendant took down the published news aboutPlaintiff’s felony booking log.II. Legal Standard“The anti-SLAPP procedures are designed to shield a defendant’s constitutionallyprotected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016)1 Cal.5th 376, 393.) “The anti-SLAPP statute does not insulate defendants from anyliability for claims arising from the protected rights of petition or speech. It only providesa procedure for weeding out, at an early stage, meritless claims arising from protectedactivity.” (Id. at 384.)Anti‐SLAPP motions are evaluated through a two‐step process. Initially, the movingdefendant bears the burden of establishing that the challenged allegations or claimsarise from protected activity in which the defendant has engaged. If the defendantcarries its burden, the plaintiff must then demonstrate its claims have at least minimalmerit. (Code Civ. Proc., § 425.16; Park v. Bd. of Trustees of California State Univ.(2017) 2 Cal. 5th 1057, 1061.) “Only a cause of action that satisfies both prongs of theanti‐SLAPP statute—i.e., that arises from protected speech or petitioning and lackseven minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellierv. Sletten (2002) 29 Cal.4th 82, 89.)The party opposing the special motion to strike must proffer a prima facie showing offacts supporting a judgment in his favor. (Navellier v. Sletten, (2002) 29 Cal.4th 82, 89.)In making its determination, “the court does not weigh the credibility or comparativeprobative strength of competing evidence, it should grant the motion if, as a matter oflaw, the defendant's evidence supporting the motion defeats the plaintiff's attempt toestablish evidentiary support for the claim. [Citation.] In making this assessment it is thecourt's responsibility to accept as true the evidence favorable to the plaintiff. [Citation.]”(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)The plaintiff must also overcome substantive defenses to demonstrate a probability ofprevailing. (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th413, 434; Flatley v. Mauro (2006) 39 Cal.4th 299, 323 [no probability of prevailing whereclaims are barred by the litigation privilege under Civil Code section 47.])III. Discussion A. Defendant has met its initial burden.Defendant first bears the burden of establishing that the challenged allegations orclaims arise from protected activity in which the defendant has engaged. Here, it hasmet that burden because the publication of the booking log was a statement made “in apublic forum in connection with an issue of public interest.” (Code Civ. Proc. §425.16(e)(3); Sonoma Media Invs. v. Super. Ct., (2019), 34 Cal. App. 5th 24, 33-34(newspapers and their websites are “public forums” under the statute). Moreover, thenewspaper’s reporting in the Booking Log about alleged criminal activity clearly relatesto “an issue of public interest.” (See, e.g., Kapellas v. Kofman, (1969), 1 Cal. 3d 20, 38:“Newspapers have traditionally reported arrests or other incidents involving suspectedcriminal activity, and courts have universally concluded that such events arenewsworthy matters of which the public has the right to be informed.”). B. Prima Facie CaseBecause Newspaper has met its initial burden, the burden now moves to the Plaintiff todemonstrate that the allegations of the Complaint are both legally sufficient andsupported by a sufficient prima facie showing of facts supporting a judgment in theirfavor. (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.) The party opposing thespecial motion to strike must proffer a prima facie showing of facts supporting ajudgment in his favor. (Navellier v. Sletten, (2002) 29 Cal.4th 82, 89.) 1. Defamation/Libel/False Light3/Defamation Per Se/Defamation Per QuodTo carry his burden on the various defamation and libel claims, Plaintiff mustdemonstrate that he has pleaded, and has admissible evidence demonstrating, that theBooking Log is materially false, defamatory, and unprivileged and that its publicationentitles him to damages. (See Med. Marijuana v. ProjectCBD.com, (2020) 46 Cal. App.5th 869, 884 (2020). Because Plaintiff is a public figure, he must also demonstrate thatthe Defendant acted with “actual malice – that is, with knowledge that it was false orwith reckless disregard of whether it was false or not.” (Reader's Digest Assn. v.Superior Court, (1984) 37 Cal.3d 244, 250, citing New York Times v. Sullivan (1964),376 U.S. 254, 279-80.)Defendant preemptively argues that Plaintiff cannot carry his burden because theallegations are based on information obtained from the police Booking Log and aretherefore absolutely privileged. Civil Code section 47(d)(1) makes privileged a “fair andtrue report in, or a communication to, a public journal, of [a] public official proceeding,3 False light and defamation are “essentially equivalent” causes of action. (Fellows v. NationalEnquirer, Inc., (1986), 42 Cal.3d 234, 248 fn. 12.)or…anything said in the course thereof.” The crime reports of a police department arequalifiedly privileged under the Civil Code. (Hayward v. Watsonville Register-PajaronianSun (1968) 265 Cal.App.2d 255, 260.)The act of accurately reporting what was contained in a police investigation record orBooking Log is privileged. Here, Defendant accurately reported what was in the policerecords, specifically, information that Calaveras County Sheriff’s Office (“CCSO”) postedto Citizen RIMS.4 (Declaration of Corissa Davidson ¶¶ 9-12, 15.) Davidson used noother source of information for the Booking Log. (Id. ¶ 12, 15.) She prepared it byconsulting the CCSO-published entries on the Arrests page of Citizen Rims as ofOctober 11, 2023, and reporting it in the Booking Log. (Id. ¶¶ 9-15. ) The Booking Logconstitutes a fair and true report of the CCSO’s communications concerning a judicialand/or “public official proceeding.” (Cal. Civ. Code § 47(d)(1).)5 Notably, Plaintiff doesnot dispute that CCSO, on October 5, 2024, reported that it had arrested him on afelony vandalism charge.California “ ‘permits no cause of action based upon the defamatory nature of acommunication which is itself privileged under the defamation laws.’ ” (Brody v.Montalbano (1987) 87 Cal.App.3d 725, 738-39 [citation omitted].) Accordingly, as theinformation Defendant published in the Newspaper was privileged as an accurate reportof CCSO’s communications concerning a public official proceeding, Plaintiff may notmaintain any causes of action based in defamation law.2. Remaining Causes of ActionPlaintiff also maintains causes of action for negligent and intentional infliction ofemotional distress. Plaintiff may not maintain these causes of action either. The U.S.Supreme Court has defined a “zone of constitutional protection within which one couldpublic concerning a public figure without fear of liability.” (Reader's Digest Assn. v.Superior Court, (1984), 37 Cal.3d 244, 265, citing New York Times Co. v. Sullivan, 376U.S. 254, 269.) Further, that “constitutional protection does not depend on the labelgiven the stated cause of action.” (Ibid.) Accordingly, Plaintiff’s remaining causes ofaction also fail because “liability cannot be imposed on any theory for what has beendetermined to be a constitutionally protected publication.” (Id. at 265-266.)4Citizen RIMS provides visitors access to several categories of information, including information aboutarrests (under the site’s “Arrests” tab) and a “media bulletin” in which the CCSO disclosed informationabout recent calls for service (“Bulletin” tab). (Davidson Decl. ¶ 9.)5 Plaintiff argues that the website the Defendant used was an unofficial source but provides no evidencein support of this assertion.III. ConclusionFor the foregoing reasons, Defendant’s motion to strike is GRANTED. Plaintiff’sComplaint is therefore stricken in its entirety and Judgment entered on behalf ofDefendant. As the prevailing party, any claim by Defendant for costs and/or attorney’sfees would be determined by subsequent motion(s). The Clerk shall provide notice ofthese Rulings to the parties forthwith. Defendant to submit a formal Order andJudgment pursuant to Rule of Court 3.1312 in conformity with this Ruling.

Ruling

LONNIE MARIE ORTIZ VS ARQUIMIDES MORALES

Case Number: 23STCV05347 Hearing Date: August 8, 2024 Dept: 29 Ortiz v. Morales 23STCV05347 Defendants Motion for Terminating Sanctions Tentative The motion is denied. Background On March 10, 2023, Lonnie Marie Ortiz (Plaintiff) filed a complaint against Arquimides Morales (Defendant) and Does 1 through 10 for motor vehicle negligence and general negligence arising out of an accident occurring on March 11, 2021. Defendant filed an answer on August 7, 2023. On January 31, 2024, the Court granted Defendants motions to compel and ordered Plaintiff to respond to Defendants form interrogatories, special interrogatories, and requests for production within 20 days. Notice of ruling was duly served on Plaintiffs counsel. On February 16, 2024, Plaintiffs counsel was relieved as counsel. On March 5, 2024, Defendant mailed a letter directly to Plaintiff and attached the notice of ruling. (Harn Decl., Exh. B.) Plaintiff did not provide the ordered responses. (Id., ¶ 8.) On June 4, 2024, Defendant filed this motion for terminating sanctions. No opposition has been filed. The hearing was initially scheduled for July 17 and was continued by the Court to August 8. Legal Standard When a plaintiff fails to obey an order compelling answers to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7. (Code Civ. Proc., § 2030.290, subd. (c).) When a plaintiff fails to obey an order compelling responses to requests for production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7. (Code Civ. Proc., § 2031.300, subd. (c).) In Chapter 7 of the Civil Discovery Act, section 2023.030 provides for monetary, evidence, issue, and terminating sanctions for any misuse of the discovery process, [t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title. A misuse of the discovery process is defined to include (among other things) failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to a discovery request; disobeying a court order to provide discovery; and making or opposing, unsuccessfully, a motion to compel without substantial justification. (Code Civ. Proc., § 2023.010, subds. (d)-(h).) The Civil Discovery Act provides for an escalating and incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) Discovery sanctions should be appropriate to and commensurate with the misconduct, and they should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 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. (Ibid.; see also, e.g., Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) Terminating sanctions should be used sparingly. (Doppes, supra, 174 Cal.App.4th at p. 992; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal. App. 4th 486, 496.) Although in extreme cases a court has the authority to order a terminating sanction as a first measure, a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective. (Lopez, supra, 246 Cal.App.4th at p. 604.) But where discovery violations are willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (Doppes, supra, 174 Cal.App.4th at p. 992.) Repeated and willful violations of discovery orders that prejudice the opposing party may warrant a terminating sanction. (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702; Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; Lang v. Hachman (2000) 77 Cal.App.4th 1225, 1246; Collisson X Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622.) The primary purpose of discovery sanctions is to obtain compliance with the Civil Discovery Act and the Courts orders. It is not to punish. (Newland v. Super. Ct. (1995) 40 Cal.App.4th 608, 613; Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.) A discovery sanction should not create a windfall for a party or place a party in a better position than it would have been if the opposing party had simply complied with its obligations under the Courts orders and the Civil Discovery Act. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1194; see also 2 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023), ¶¶ 8:2214-2220.) Discussion As a preliminary matter, this case was reassigned to Department 29 on June 24, 2024. Until further notice, all motions should identify Department 29 as the location in which the motion will be heard. Defendant seeks terminating sanctions for Plaintiffs failure to comply with this Courts Order and for failure to comply with the requirements of the Civil Discovery Act. This is a serious misuse of the discovery response, for which serious sanctions are warranted. For terminating sanctions, however, a party must present evidence of repeated and willful misuse of the discovery process, as well as evidence that less severe sanctions have not (or likely will not) lead to compliance with the discovery rules. Defendant has not, on this record at this time, made such a showing. There has not been a showing of a history or pattern of willful abuse or repeated violations that have not been (or cannot be) cured by lesser sanctions. Moreover, a discovery sanction should not create a windfall for a party or place a party in a better position than it would have been if the opposing party had simply complied with its obligations under the Courts orders and the Civil Discovery Act. (Rutledge, supra, 238 Cal.App.4th at p. 1194.) Here, at this time, a terminating sanction would create such a windfall for Defendant as no lesser sanctions have been pursued. Defendant does not request lesser sanctions in this motion. Accordingly, the Defendants motion for terminating sanctions is DENIED. The denial as to terminating sanctions is without prejudice to Defendant seeking other sanctions or seeking a terminating sanction at a later stage of the proceedings, based on a further showing of misuse of the discovery process. Conclusion The Court DENIES Defendants motion for terminating sanctions. Moving Party is ordered to give notice.

Ruling

RAUL S. GONZALEZ VS JOHN DOE

Aug 07, 2024 |22STCV09060

Case Number: 22STCV09060 Hearing Date: August 7, 2024 Dept: 32 PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. TENTATIVE RULING DEPT: 32 HEARING DATE: August 7, 2024 CASE NUMBER: 22STCV09060 MOTIONS: Motion to be Relieved as Counsel MOVING PARTY: Plaintiff Raul S. Gonzalezs Counsel OPPOSING PARTY: None BACKGROUND Plaintiff Raul S. Gonzalezs (Plaintiff) counsel of record, Kevin S. Avery (Counsel), moves to be relieved as counsel for Plaintiff. Counsel contends relief is necessary because there has been a breakdown in the attorney-client relationship. No opposition has been filed for this motion. LEGAL STANDARD To be granted relief as counsel, counsel must comply with California Rules of Court (CRC) 3.1362. Even where grounds for termination exist, attorneys seeking to withdraw must comply with the procedures set forth in California Rule of Professional Conduct (CRPC) 3.700 and are subject to discipline for failure to do so. CRPC 3.700(B) lists various grounds for mandatory withdrawal. An attorney's right to terminate the attorney-client relationship and withdraw from a case is not absolute. (See Vann v. Shilleh (1975) 54 Cal.App.3d 192, 197; People v. Prince (1968) 268 Cal.App.2d 398.) The decision whether to grant or deny an application for withdrawal is within the court's discretion, and it does not abuse that discretion by denying the application on the ground that the attorney's withdrawal would work injustice upon a third party. (Hodcarriers, Bldg. and Common Laborers Local Union No. 89 v. Miller (1966) 243 Cal.App.2d 391.) The rules have been liberally construed to protect clients. (Vann v. Shilleh, supra, 54 Cal.App.3d 192.) An attorney, either with client's consent or court's approval, may withdraw from a case when withdrawal can be accomplished without undue prejudice to client's interests; however, an attorney 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. (CRPC 3.700(A)(2).) A lawyer violates his or her ethical mandate by abandoning a client (Pineda v. State Bar (1989) 49 Cal.3d 753, 758 759), or by withdrawing at a critical point and thereby prejudicing the clients case. (CRPC 3.700(A)(2); Vann v. Shilleh, supra.) DISCUSSION Counsel has filed forms MC-051 and MC-052. Counsel states the instant motion is filed for the following reason: There has been a breakdown of communication with Raul S. Gonzalez (Gonzalez). After numerous telephone calls to Gonzalez for the past several months and two letters to Gonzalez to contact my office, Gonzalez called my office and promised to call me back. However, Gonzalez has failed to do so as of this date. The failure of Gonzalez to communicate with us has rendered it unreasonably difficult to represent Gonzalez in this matter. Ethical considerations require withdrawal and there has been an irreconcilable breakdown in the attorney-client relationship. (MC-052.) However, Counsel has not lodged with the Court a copy of the proposed order on form MC-053 as required. (Cal Rules of Court, rule 3.1362.) Additionally, the incorrect address for this Court is listed in the moving papers and proof of services. Therefore, the parties have not received sufficient notice. Moreover, Counsel has not provided information for all future proceedings in this case. Accordingly, the Court DENIES the motion to relieve counsel. Counsel shall provide notice of the Courts ruling and file proofs of service of such.

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