20 DAYS SUMMONS RETURNED SERVED - GEICO GENERAL INSURANCE CO. 02/22/2018 February 23, 2018 (2024)

Case

Grappin Clinic Of Chiropractic, P.A.,CELL, RANDOLPH vs Geico Indemnity Company

Aug 28, 2024 |Giardina, James. S |Civil |SC Personal Injury Protection-Tier 1 $0.00-$99.99 |24-CC-048842

Case

Belcher, Robert vs Gonzales, Omar

Case

Healing Hands Chiropractic, P.A. vs Garrison Property and Casualty Insurance Company

Aug 22, 2024 |Allen, Lisa. A |Civil |SC Personal Injury Protection-Tier 2 $100.00-$500.00 |24-CC-047592

Case

Aug 22, 2024 |Giardina, James. S |Civil |SC Personal Injury Protection-Tier 1 $0.00-$99.99 |24-CC-047688

Case

Rejuvenx Of Ft. Myers, LLC vs Infinity Indemnity Insurance Company

Aug 22, 2024 |Allen, Lisa. A |Civil |SC Personal Injury Protection-Tier 1 $0.00-$99.99 |24-CC-047609

Case

Florida Radiology Consultants, PA vs Progressive American Insurance Company

Aug 21, 2024 |Perrone, Frances. M |Civil |SC Personal Injury Protection-Tier 1 $0.00-$99.99 |24-CC-047545

Case

Grappin Clinic Of Chiropractic, P.A.,SPARA, TRACEY vs Geico General Insurance Company

Aug 27, 2024 |Martin, Richard. H |Civil |SC Personal Injury Protection-Tier 1 $0.00-$99.99 |24-CC-048457

Case

EASTWOOD, BENJAMIN L. vs AMERICAN FAMILY CONNECT PROPERTY AND CASUALTY INSURANCE COMPANY

Aug 21, 2024 |Daniel, Helene. L |Civil |Auto Negligence |24-CA-006907

Case

SIMMONS, MI'KILA vs LARRY, DEBORAH D.

Ruling

Nuanmanee, et al. vs. Roseburg Forest Products, Co.

Aug 29, 2024 |23CV-0201676

NUANMANEE, ET AL. VS. ROSEBURG FOREST PRODUCTS, CO.Case Number: 23CV-0201676This matter is on calendar for review regarding status of dismissal. The Court notes that a minor’s compromisehas been approved and finalized for each of the named Plaintiffs. On May 23, 2024, the Court issued an Orderinforming Plaintiffs that the matter remains open as it has not been dismissed. An appearance is necessary ontoday’s calendar to provide the Court with an update regarding when the matter will be dismissed.

Ruling

DIEGO F. RAMIREZ MEDINA VS NATIONAL FREIGHT , INC., ET AL.

Case Number: 20STCV13267 Hearing Date: August 26, 2024 Dept: 29 Medina v. National Freight 20STCV13267 Defendants Motion for Leave to File an Amended Answer Tentative The motion is granted. Background On April 3, 2020, Diego F. Ramirez Medina (Plaintiff) filed a complaint against National Freight, Inc. and Andre L. Johnson for general negligence and motor vehicle negligence causes of action arising out of an automobile accident occurring on April 6, 2018 on 218th Place and Alameda Street in Carson, California. On May 15, 2020, National Freight, Inc. and Andre L. Johnson for filed an answer. On November 18, 2020, Plaintiff filed an amendment complaint adding Container Freight Transportation, LLC as Doe 1. On December 18, 2020, Container Freight Transportation, LLC filed an answer. On July 25, 2024, Defendants Container Freight Transportation, LLC and Andre L. Johnson (collectively Defendants) filed this motion for leave to file an amended answer. Plaintiff filed an opposition on August 13; Defendants filed a reply on August 19. Legal Authority Code of Civil Procedure section 473, subdivision (a)(1), provides, in relevant part: The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment. (See California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281, overruled on other grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.) Under California Rules of Court, rule 3.1324(a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. Under rule 3.1324(b), a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.) Discussion Defendants request leave to amend their answer to add an affirmative defense of Civil Code section 3333.4; Defendants contend that Plaintiff lacked insurance when the accident occurred, and therefore Plaintiff cannot recover non-economic damages. (Johnson Decl., ¶ 3.) Plaintiff argues Defendants knew of this defense for years, but have waited until 9 days before trial to amend their answer. (Younes Decl., ¶¶ 8, 10.) Plaintiff contends Defendants have asserted this defense since March 2, 2021. (Id., ¶ 4.) In response, Defendants assert there will be no undue prejudice for Plaintiff in adding the defense as it has been a known defense asserted by Defendants and Plaintiff has an expert as to the issue of insurance. (Reply, 2:17-26.) Defendants further argue the delay was due to mistake, as current Defense counsel and Plaintiffs counsel were under the mistaken impression Civil Code section 3333.4 was asserted as a defense. (Id., 4:9-12.) All procedural requirements for the motion are satisfied. The Court has reviewed the evidence in the record and the arguments from both sides. Although Defendants have not been diligent in seeking leave to amend their answer, the Court finds that there is good cause for leave to amend the answer to add the affirmative defense to their answer. Further, the Court finds that Plaintiff will not be unduly prejudiced by the addition of the affirmative defense, as both sides have been aware of this issue for a substantial period of time. This is not a situation in which a proposed amendment would introduce a brand new issue into a case shortly before trial. The Court finds good cause has been established for Defendants amend the answer to add the affirmative defense of Civil Code section 3333.4. As such, the Court GRANTS the motion for leave to amend. Conclusion Accordingly, Defendants motion for leave to amend is GRANTED. The Court GRANTS LEAVE to Defendants to file the First Amended Answer attached to the moving papers within 5 days of the hearing on this motion. Moving Party is to give notice.

Ruling

Brian Hill, individually and on behalf of class of similarly situated persons and the general public, as applicable vs Dominator, Inc, a California Corporation dba Dominator Street Rods et al.

Aug 26, 2024 |STK-CV-UF-2022-0003741

Tentative rulings for Law and Motion will be posted electronically by 1:30 p.m. the day before the hearing. Any party wishing to contest or argue the tentative ruling must email the court at civilcourtclerks@sjcourts.org. that they intend to appear in person or remotely no later than 4:00 PM on the day before the scheduled hearing. The Department and Case Number must be in the header of the email. The email must include the Department, Case number, Case Name, Motion, party’s name and email, date and time of the hearing, issues they plan to argue, and that they have informed the opposing party. The party must also notify affected counsel, or unrepresented parties, that they intend to appear, no later than 4:00 PM on the day before the scheduled hearing. Unless the Court and opposing counsel have been notified, the tentative ruling shall become the ruling of the Court without oral argument. To attend the hearing remotely in Dept. 10-D: Call into (209) 992-5590, then follow the prompts and use the Bridge # and Pin # as follows Bridge # 6940 Pin # 3782 TENTATIVE RULING: On its own motion, the Court is vacating Plaintiff's Motion for Class Certification, and is issuing an Order to Show Cause (OSC) for Attorney Keric J. Cushing to provide legal and factual grounds to support the Notice of Stay in this case, as to the non-debtor Co-Defendants, to wit, Leonard and Regina Lopez. The OSC will be heard on September 17, 2024 at 9:00 A.M. in Dept. 10D. The Court will determine at the OSC hearing if and when the Motion for Class Certification will be heard. The Court is also vacating the Mandatory Settlement Conference set for September 9, 2024, as well as the Jury Trial scheduled for September 23, 2024, and is scheduling a Trial Setting Conference for 12/13/2024 at 8:45 A.M. in Dept. 10D. Please note that the Court will not hear oral arguments as to this Tentative Ruling. Barbara A. Kronlund

Ruling

ART PAYNE VS MARCO CARREON

Aug 27, 2024 |20STCV48899

Case Number: 20STCV48899 Hearing Date: August 27, 2024 Dept: 28 Having considered the moving papers, the Court rules as follows. PROCEDURAL HISTORY On December 22, 2020, Plaintiff Art Payne (Plaintiff) filed this action against Defendants Marco Carreon, Vickey Carreon, and Does 1-50 for negligence. On July 14, 2022, Defendants Marco Carreon and Vicky Carreon (erroneously sued as Vickey Carreon) (Defendants) filed an answer. On May 1, 2024, Defendants filed a motion for an order compelling Hawthorne Surgery Center ("Hawthorne") to comply with a deposition subpoena and for sanctions. The motion was set for hearing on June 20, 2024. Plaintiff did not file an opposition. On June 20, 2024, the Court denied Defendants motion, observing that Defendants did not personally serve the moving papers on Hawthorne and Defendants had not shown that Hawthorne agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record. (Cal. Rules of Court, rule 3.1346.) On June 21, 2024, Defendants filed another motion to compel Hawthorne to comply with a deposition subpoena and for sanctions. The motion was set for hearing on August 7, 2024. The Court continued the hearing to August 27, 2024. Plaintiff did not file an opposition. Trial is currently scheduled for February 7, 2025. PARTIES REQUESTS Defendants ask the Court to compel Hawthorne to comply with a deposition subpoena and to impose sanctions on Hawthorne. LEGAL STANDARD Code of Civil Procedure section 1987.1 provides: (a) 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 courts 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. (b) The following persons may make a motion pursuant to subdivision (a): (1) A party. (2) A witness. (3) A consumer described in Section 1985.3. (4) An employee described in Section 1985.6. (5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that persons exercise of free speech rights. (c) Nothing in this section shall require any person to move to quash, modify, or condition any subpoena duces tecum of personal records of any consumer served under paragraph (1) of subdivision (b) of Section 1985.3 or employment records of any employee served under paragraph (1) of subdivision (b) of Section 1985.6." (Code Civ. Proc., § 1987.1.) Code of Civil Procedure section 1987.2, subdivision (a), provides: [With exceptions not relevant here,] in making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorneys fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive." (Code Civ. Proc., § 1987.2, subd. (a).) Code of Civil Procedure section 2025.480 provides in part: (a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponents control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. (b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Notice of this motion shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing. If the notice of the motion is given orally, the deposition officer shall direct the deponent to attend a session of the court at the time specified in the notice. * * * (h) Not less than five days prior to the hearing on this motion, the moving party shall lodge with the court a certified copy of any parts of the stenographic transcript of the deposition that are relevant to the motion. If a deposition is recorded by audio or video technology, the moving party is required to lodge a certified copy of a transcript of any parts of the deposition that are relevant to the motion. (i) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition. (j) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. . . . (Code Civ. Proc., § 2025.480, subds. (a), (b), (c), (h), (i), (j).) DISCUSSION On February 2, 2024, Defendants served a deposition subpoena for personal appearance and production of documents and things on Hawthorne for its person most knowledgeable regarding billing procedures and practices. Defendants also served a notice setting the deposition on March 1, 2024. Hawthorne did not object to the subpoena. However, on March 1, 2024, Hawthorne failed to appear, testify, or produce documents. Defendants took a certificate of non-appearance. Defendants now ask the Court to compel Hawthornes person most knowledgeable regarding billing procedures and practices to comply with the deposition subpoena. Defendants base their motion in part on Code of Civil Procedure section 2025.480, which requires a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2025.480, subd. (b).) Defendants have not, however, provided a meet and confer declaration to support their motion. In addition, Code of Civil Procedure section 2025.480, subdivision (b), requires a motion to be made no later than 60 days after the completion of the record of the deposition . . . . (Code Civ. Proc., § 2025.480, subd. (b).) The certificate of nonappearance for the March 1, 2024 deposition, which Defendants have attached to the motion as Exhibit D, includes the court reporters declaration that [t]he above foregoing two (2) pages contain a full, true and correct transcription of the proceedings. The court reporter signed the declaration under penalty of perjury on March 5, 2024. Defendants filed their motion on June 21, 2024, more than 60 days after March 5, 2024. Although Defendants have not satisfied the requirements of Code of Civil Procedure section 2025.480, the Court grants the motion under Code of Civil Procedure section 1987.1, subdivision (a). The Court orders Hawthornes person most knowledgeable about billing procedures and practices to appear, testify, and produce responsive documents at a deposition to take place within 10 days of the Courts order. The Court denies Defendants request to impose monetary sanctions on Hawthorne. Defendants rely on Code of Civil Procedure section 1987.2, which authorizes sanctions for bad faith or unjustified oppositions, but Hawthorne did not oppose Defendants motion. (See Code Civ. Proc., § 1987.2, subd. (a).) Defendants also cite the sanctions provision of Code of Civil Procedure section 2025.480, but for the reasons discussed above Defendants are not entitled to relief under that statute. CONCLUSION The Court GRANTS in part the motion filed by Defendants Marco Carreon and Vicky Carreon to compel Hawthorne Surgery Centers compliance with Defendants' deposition subpoena. The Court orders Hawthorne Surgery Centers person most knowledgeable about billing procedures and practices to appear, testify, and produce responsive documents at a deposition to take place within 10 days of the Courts order. The Court DENIES Defendants request for sanctions. Moving parties are ordered to give notice of this ruling. Moving parties are ordered to file the proof of service of this ruling with the Court within five days.

Ruling

Wulfekuhler, Lynda vs. Nazari, Mina

Sep 09, 2024 |S-CV-0052688

S-CV-0052688 Wulfekuhler, Lynda vs. Nazari, Mina** NOTE: telephonic appearances are strongly encouragedTrial Date & Length: 02/17/26 6 day Jury Trial(Please contact Master Calendar (916) 408-6061 on the business dayprior to the scheduled trial date to find courtroom availability.)Civil Trial Conference: 02/06/26(heard at 8:30 am in Dept. 3)Mandatory Settlement Conference: 01/30/26(heard at 8:30am; report to Jury Services)NO APPEARANCE REQUIRED UNLESS REQUESTED BY PARTY BY 3PM ONTHE THURSDAY PRIOR TO HEARING DATE. REQUESTS FORAPPEARANCE MUST BE FAXED TO THE CIVIL DEPARTMENT, ATTN: CMCCLERK AT (916) 408-6275, AND TO ALL OPPOSING ATTORNEYS ANDPARTIES WITHOUT ATTORNEYS BY 3:00 PM THE THURSDAY PRIOR TOTHE CASE MANAGEMENT DATE. SEE LOCAL RULE 20.1.7.

Ruling

PROGRESSIVE SELECT INSURANCE COMPANY vs HOWSER, GARRETT M

Aug 28, 2024 |CV-23-005378

CV-23-005378 – PROGRESSIVE SELECT INSURANCE COMPANY vs HOWSER, GARRETT M – Defendant’s Motion to Set Aside Default and Default Judgment Pursuant to CCP 473(B); CCP 473.5; CCP 473(D) – DENIED, without prejudice.The Court finds that Defendant’s motion does not demonstrate sufficient notice on Plaintiff. (Civ. Proc. Code sections 1005 (b); 1010 (a)(3)(B)).Accordingly, Defendant’s motion is denied without prejudice.

Ruling

ANTJONETTE JONES VS NEGAH DABESTANI

Aug 26, 2024 |22STCV07483

Case Number: 22STCV07483 Hearing Date: August 26, 2024 Dept: 28 Having considered the moving, opposing, and reply papers, the Court rules as follows. PARTIES REQUESTS Plaintiff Antjonette Jones (Plaintiff) asks the Court to compel Defendant Negah Dabestani (Defendant) to complete her deposition and produce additional documents. Plaintiff also asks the Court to impose sanctions on Defendant and Defendant's counsel. Defendant asks the Court to deny the motion and to impose sanctions on Plaintiff and Plaintiff's counsel. LEGAL STANDARD Code of Civil Procedure section 2025.480 provides in part: (a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponents control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. (b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Notice of this motion shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing. If the notice of the motion is given orally, the deposition officer shall direct the deponent to attend a session of the court at the time specified in the notice. * * * (h) Not less than five days prior to the hearing on this motion, the moving party shall lodge with the court a certified copy of any parts of the stenographic transcript of the deposition that are relevant to the motion. If a deposition is recorded by audio or video technology, the moving party is required to lodge a certified copy of a transcript of any parts of the deposition that are relevant to the motion. (i) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition. (j) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. . . . (Code Civ. Proc., § 2025.480, subds. (a), (b), (c), (h), (i), (j).) BACKGROUND A. Plaintiffs complaint, Defendants answer and motion for protective order, and orders continuing trial On March 1, 2022, Plaintiff filed this action against Defendant and Does 1-50 for motor vehicle tort and general negligence. On March 30, 2023, Defendant filed an answer. On June 29, 2023, the Court granted Defendants ex parte application to continue the trial. The Court continued the trial from August 29, 2023 to February 22, 2024 and continued discovery and expert cutoff dates to reflect the new trial date. On January 19, 2024, Defendant filed a motion for protective order to be heard on April 18, 2024. On April 5, 2024, Plaintiff filed an opposition. On April 9, 2024, Defendant filed a reply. The Court continued the hearing to June 18, 2024. On January 24, 2024, the Court granted Defendants ex parte application to continue the trial. The Court continued the trial from February 22, 2024 to April 5, 2024 and ordered that [t]he current discovery and law and motion cut-off dates remain. B. Plaintiffs February 7, 2024 motion to compel completion of Defendants deposition On November 6, 2023, Plaintiff served an amended deposition notice and request for documents on Defendant. On December 27, 2023, Defendant served objections to the document requests. On January 3, 2024, Defendant attended her deposition. On February 7, 2024, Plaintiff filed a motion to compel the completion of Defendants deposition testimony and production of documents, to be heard on April 23, 2024 (February 7, 2024 motion). On April 5, 2024, Defendant filed an opposition. On April 8, 2024, Plaintiff filed a reply. In the February 7, 2024 motion, Plaintiff argued that (1) Defendant left the deposition at 5:17 p.m. in response to Defendants counsels encouragement even though Plaintiffs counsel had not finished examining Defendant, (2) Defendants counsel instructed Defendant not to answer 41 questions, (3) Defendant had not produced all the requested documents. In response, Defendant argued (1) many of Plaintiffs document requests were improper, (2) Plaintiffs counsel badgered Defendant at the deposition in an attempt to intimidate, confuse, and threaten her, (3) Plaintiffs counsel asked Defendant improper questions that required Defendants counsel to instruct Defendant not to answer, (4) Plaintiff did not meet and confer, and (5) Plaintiff did not file a separate statement supporting the motion to compel. In reply, Plaintiff argued that a separate statement is not required for a Motion to Compel Deposition Testimony and Production of Documents pursuant to California Rules of Court section 3.1345. (Reply p. 4.) On March 21, 2024, the Court granted in part Plaintiffs ex parte application to continue the trial. The Court continued the trial from April 5, 2024 to July 10, 2024 and reopen[ed] the time for discovery and related motions to trail the new trial date for the sole purpose of hearing [Plaintiff's February 7, 2024] motion to compel scheduled for April 23, 2024 and the motion for protective order set for April 18, 2024. The Court continued the hearing on Plaintiffs February 7, 2024 motion to June 18, 2024. C. The Court denies Plaintiffs February 7, 2024 motion On June 17, 2024, the Court posted a tentative ruling in advance of the June 18, 2024 hearing. In the tentative ruling, the Court denied Plaintiffs February 7, 2024 motion because it did not comply with California Rules of Court, rule 3.1345, which requires a separate statement for a motion [t]o compel answers at a deposition. (Cal. Rules of Court, rule 3.1345(a)(4).) The tentative ruling also denied as moot Defendants motion for a protective order and Plaintiffs motion to continue the trial and reopen discovery. The same day (June 17), Plaintiff rescheduled the hearing on the February 7, 2024 motion from June 18, 2024 to July 31, 2024. At the hearing on June 18, 2024, the Court adopted as its decision the tentative ruling issued on June 17, 2024, including the ruling denying Plaintiffs February 7, 2024 motion. The Court declined to take the July 31, 2024 date which Plaintiff had set for a continued hearing of the February 7, 2024 motion off calendar. However, the Court explained that it had ruled on Plaintiffs February 7, 2024 motion to compel completion of Defendants deposition. D. Plaintiffs June 24, 2024 amended motion to compel completion of Defendants deposition On June 24, 2024, Plaintiff filed an amended motion to compel the completion of Defendants deposition and production of documents (amended motion). The amended motion was set for hearing on July 31, 2024. The Court continued the hearing to August 26, 2024. On July 18 and 24, 2024, Defendant filed an opposition. On July 24, 2024, Plaintiff filed a reply. E. The Court continues the trial but does not extend discovery or motion cut-off dates On July 10, 2024, the Court continued the trial from July 10, 2024 to July 31, 2024 based on the parties stipulation. The Court did not reopen discovery. On July 17, 2024, the Court denied Plaintiffs ex parte application to continue the trial and expert discovery or, in the alternative, for an order shortening time to advance the hearing on Plaintiffs amended motion to compel Defendants further deposition. The Courts order denying the ex parte application stated: As the Court has explained, it has already decided Plaintiff's motion to compel a further deposition. The Court has discretion to adopt a tentative ruling even if, after the Court issues the tentative ruling, the moving party attempts to continue the hearing or withdraw the motion. The Court exercised this discretion here when it adopted its tentative ruling despite Plaintiff's attempt to continue the hearing after the Court issued its tentative ruling. Because the Court has decided the motion, it is not necessary to continue the trial until after the date of Plaintiff's rescheduled motion. The Court (1) does not find good cause for a continuance, (2) declines to advance the continued hearing on the already-decided motion, and (3) denies the ex parte application. On July 29, 2024, the Court granted Defendants ex parte application to continue the trial. The Court continued the trial from July 31, 2024 to September 18, 2024. The Court continued expert discovery cut-off dates along with the new trial date. The Court did not continue or reopen other discovery and motion cut-off dates. Trial is scheduled for September 18, 2024.DISCUSSION A. The amended motion was set for hearing after the statutory deadline Despite the Courts statements on June 18, 2024 and July 17, 2024 that it had ruled on Plaintiffs February 7, 2024 motion, Plaintiff now contends that the Court did not deny the motion. (Reply p. 5.) Citing the Courts reluctance to take the July 31, 2024 hearing date which Plaintiff had scheduled off calendar, Plaintiff asserts that the Courts June 18, 2024 order denying the February 7, 2024 motion did not constitute a final denial of Plaintiffs request. In declining to remove from the Courts calendar a future hearing that Plaintiff had scheduled, the Court did not suggest that Plaintiff could re-litigate the February 7, 2024 motion, which the Court had already decided. Instead, the Court explained that it was not prejudging the merits of any motion that Plaintiff might file for a hearing on July 31, 2024. Even assuming for the sake of argument that the Court allowed Plaintiff to resubmit the February 7, 2024 motion for a further hearing (it did not), the Court did not and could not waive Defendant's rights under Code of Civil Procedure section 2024.020, subdivision (a), which provides: (a) Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action. (Code Civ. Proc., § 2024.020, subd. (a).) Here, the last day for hearing non-expert discovery motions was February 7, 2024 (15 days before February 22, 2024), except for the hearing of Plaintiffs February 7, 2024 motion to compel completion of Defendants deposition and Defendants motion for protective order. For those motions, the Court extended the cut-off date to June 25, 2024 (15 days before July 10, 2024). The Court heard and ruled on the February 7, 2024 motion and Defendants motion for protective order on June 18, 2024. Plaintiffs amended motion to compel completion of Defendants deposition was set for hearing on July 31, 2024, after the February 7, 2024 discovery cut-off date for discovery motions and after the June 25, 2024 hearing cut-off date for Plaintiffs February 7, 2024 motion to compel completion of Defendants deposition. Plaintiffs amended motion was set for hearing after the statutory deadline. (See Code Civ. Proc., § 2024.020, subd. (a).) The Court denies the motion. B. Sanctions The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.480, subd. (j).) The Court finds that Plaintiff did not act with substantial justification and that circ*mstances do not make the imposition of sanctions unjust. Defendant requests $2,125.00 in sanctions based on 8.5 hours of attorney time at a rate of $250.00 per hour. Defendant's counsel spent 2.5 hours preparing the opposition and five hours preparing the separate statement. Counsel anticipated spending one hour to appear at the hearing. The Court grants $1,000.00 in sanctions based on four hours of attorney time. CONCLUSION The Court DENIES Plaintiff Antjonette Jones amended motion to compel completion of Defendant Negah Dabestanis deposition testimony and production of documents. The Court GRANTS Defendant Negah Dabestanis request for sanctions and orders Plaintiff Antjonette Jones and her counsel to pay Defendant Negah Dabestani $1,000.00 by September 25, 2024. Moving party is ordered to give notice of this ruling. Moving party is ordered to file proof of service of this ruling with the Court within five days.

Ruling

RODERICK K. GAINES, AN INDIVIDUAL VS THOMAS E. LOMBARDI, AN INDIVIDUAL, ET AL.

Aug 27, 2024 |23STCV28698

Case Number: 23STCV28698 Hearing Date: August 27, 2024 Dept: 68 Dept. 68 Date: 8-27-24 c/f 8-8-24 Case #23STCV28698 DEMURRER MOVING PARTY: Defendant, Thomas Lombardi RESPONDING PARTY: Plaintiff, Roderick Gaines, pro per RELIEF REQUESTED Demurrer to the Complaint SUMMARY OF ACTION Plaintiff Roderick Gaines inherited certain real property in 2006, and elected to sell said property in 2007. Plaintiff entered into a five year lease agreement with third parties Harvey and Cecile Cloyd, which late led to a sales agreement for $1.1 million in 2011. The Cloyds failed to qualify for the mortgage. Plaintiff alleges fraud in the attempted purchase. A prior lawsuit against the Cloyds was represented as filed, 19STCV10638, but not attached as an exhibit to the complaint, as referenced. Defendant Thomas Lombardi is identified as an attorney, but it remains unclear how Lombardi in any way participated in the underlying course of conduct with the Cloyds or Plaintif. On January 22, 2023, Plaintiff in pro per filed a complaint for (1) Civil Conspiracy; ) (2) Fraudulent ) Misrepresentation; ) (3) Fraud; 16 Thomas E. Lombardi, An Individual,) (4) Elder Abuse; (5) Intentional Infliction Severe Emotional Distress. On March 27, 2024, Plaintiff dismissed Palmer Lombardi & Donohue, LLP. RULING: Sustained without Leave to Amend. Request for Judicial Notice: Granted. Defendant Thomas Lombardi submits the subject demurrer to the complaint on grounds of claim preclusion and statute of limitations. Plaintiff in opposition maintains all claims are properly pled. Plaintiff also denies any bar under the statute of limitations. Defendant in reply disregards the opposition response addressing the substantive elements of the causes of action, and otherwise disregarding the res judicata/collateral estoppel positions. Defendant reiterates the claim preclusion and statute of limitations discussion. A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (Code Civ. Proc., § 452.) The court treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . . (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.) A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.] Defendant contends claim preclusion bars the subject action in that the subject action constitutes the seventh lawsuit filed since the collapse of the sale agreement for the property. The opposition lacks any specific address to this particular contention. The court addresses the standard. The doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy. It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit. All claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897.) Res Judicata is not a bar to claims arising after the filing of the initial complaint. A party may assert new claims in an amended pleading, but if no such pleading is filed, a plaintiff is not foreclosed. [Citation.] The general rule that a judgment is conclusive as to matters that could have been litigated does not apply to new rights acquired pending the action which might have been, but which were not, required to be litigated [Citation]. (Allied Fire Protection v. Diede Const., Inc. (2005) 127 Cal.App.4th 150, 155; Planning and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 226.) In general, collateral estoppel precludes a party from relitigating issues litigated and decided in a prior proceeding. (Citations.) Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. (Citation.) (Gikas v. Zolin (1993) 6 Cal.4th 841, 848849.) Collateral estoppel is used offensively when & the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party. Defensive use occurs when a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has previously litigated and lost against another defendant. (Citations.) (Smith v. Exxon Mobil Oil Corp. (2007) 153 Cal.App.4th 1407, 1414.) The court takes judicial notice for purposes of considering the claim preclusion issues. (Kilroy v. State of California (2004) 119 Cal.App.4th 140, 148.) The request for judicial notice shows the first action, BC593634, filed on September 25, 2015, by Plaintiff in pro per, against the Cloyds, went to arbitration, and the arbitrator ruled in favor of the Cloyds. Judge was entered on February 8, 2018. On September 5, 2017, Gaines filed a second action against the Cloyds, BC674832. The demurrer to the complaint was sustained without leave to amend on March 1, 2018. On September 11, 2019, Gained filed the third complaint against the Cloyds, 19STCV32195. The court sustained the demurrer without leave to amend on February 27, 2020. On September 9, 2020, Gaines filed the fourth complaint against the Cloyds, 20STCV34227. On May 2, 2021, the court granted the motion for judgment on the pleadings without leave to amend, and entered judgment on May 17, 2021. On October 4, 2022, Plaintiff filed the fifth complaint against the Cloyds, 22STCV32629. On August 15, 2023, the court sustained the demurrer to the complaint without leave to amend. On March 20, 2024, Gaines filed the sixth complaint against the Cloyds, 24STCV06963. The case was dismissed with prejudice on April 19, 2024. Although Plaintiff named a new defendant, Thomas Lombardi, the subject complaint again challenges the underlying sale of the home involving the Cloyds. Res judicata directly bars claim splitting and piecemeal litigation, as presented in the instant action. (Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 897; Gikas v. Zolin, supra, 6 Cal.4th at pp. 848849; Gillies v. JPMorgan Chase Bank, N.A. (2017) 7 Cal.App.5th 907, 914.) Even if res judicata principles are not applicable, the entire action is alternatively barred under the doctrine of collateral estoppel. The court sustains the demurrer without leave to amend. Lombardi submits additional argument on grounds of statute of limitations. The court declines to consider the merits of the argument and affirms the demurrer on grounds of res judicata and collateral estoppel. (Allied Fire Protection v. Diede Const., Inc., supra, 127 Cal.App.4th at p. 155; Planning and Conservation League v. Castaic Lake Water Agency, supra, 180 Cal.App.4th at p. 226.) Defendant to submit a judgment. Defendant to give notice.

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