INES AGUILAR MORALES VS JERRY RAY FAIRALL JR

April 10, 2018, 10:29 am

≪ Previous: Sohrab Mansourian v. Bowman & Associates

Case Number: BC633511 Hearing Date: April 10, 2018 Dept: 98

ORDER RE: PLAINTIFF’S MOTION TO COMPEL DEFENDANT’S DEPOSITION; MOTION GRANTED

On September 23, 2016, Plaintiff Ines Aguilar Morales (“Plaintiff”) filed this action against Defendant Jerry Ray Fairall, Jr. (“Defendant”) for motor vehicle and general negligence relating to an August 27, 2015 automobile collision. On February 22, 2018, Plaintiff moved to compel Defendant’s deposition. On March 15, 2018, Plaintiff appeared ex parte to continue trial and the Court ordered Defendant to appear for his deposition within 10 days. (Declaration of Omid Khorshidi, ¶ 4.) The parties agreed that Defendant would appear for his deposition on March 27, 2018, and Defendant argues this motion is moot. However, Plaintiff seeks monetary sanctions, as Defendant’s failure to appear for deposition necessitated this motion.

If a motion to compel a party’s attendance at deposition, or where any party or attorney attended a deposition in the expectation that the deponent’s testimony would be taken, the court shall impose a monetary sanction against the non-appearing deponent unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code of Civ. Proc., § 2025.450, subd. (g)(1), (g)(2).)

Plaintiff seeks $4,710.00 in monetary sanctions. “It is a well-known principle that when attorneys’ fees are requested the court does not need separate evidence to establish the reasonable value of whatever should be justly awarded, the theory being that the trial judge is competent from his own knowledge of legal practice to fix the amount of the fees. [Citations.]” (Spencer v. Harmon Enterprises, Inc. (1965) 234 Cal.App.2d 614.)

The request for monetary sanctions is GRANTED in the amount of $650.00 for one hour, at Plaintiff’s counsel’s hourly rate. The sanctions are imposed against Defendant and his counsel of record, jointly and severally, and are to be paid to Plaintiff’s counsel within twenty (20) days of the date of this Order.

Moving party to give notice.

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Kyle Hansen v. Tinder, Inc

April 10, 2018, 10:32 am

≫ Next: Mayra Guerrero v. Prime Masonry Materials

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Kyle Hansen v. Tinder, Inc. 15-CVP-01522

Hearing: Motion for Preliminary Approval of Class Action Settlement

Date: April 10, 2018

Kyle Hansen (“Plaintiff”) as the representative plaintiff filed this class action against Tinder, Inc. (“Defendant”), a dating application service. Plaintiff alleges Defendant’s membership agreement fails to include certain required clauses about cancellation of the membership. Plaintiff’s first amended complaint includes causes of action for violation of Civil Code section1694 and Business and Professions Code section 17200.

Plaintiff brings this unopposed motion for preliminary approval of class action settlement. Plaintiff moves the Court for an order: (1) granting preliminary approval of the settlement; (2) approving the proposed form of notice to the class; (3) establishing a schedule for disseminating the notice to the class members, as well as deadlines for class members to object to or opt out of the settlement; (4) scheduling a hearing for final approval of the settlement during which class members may be heard; and (5) scheduling a hearing for Plaintiff’s counsel’s application for an award of fees and litigation costs.

There are three stages to the court’s settlement approval process: (1) preliminary approval of the proposed settlement at an informal hearing; (2) notice of the settlement to all affected class members; and (3) final approval after a formal hearing. As noted above, the instant motion seeks preliminary approval of the settlement.

The court may approve settlements reached before or after a class has been certified. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017), Ch. 14-C, § 14:138.20, citing Wershba v. Apple Computer, Inc. (2001) 91Cal.App.4th 224, 240.) Here, the class was not certified prior to the settlement. The settlement agreement and proposed notice to class members must be filed with the motion, and the proposed order must be lodged with the motion. (Cal. Rules of Court, rule 3.769(c); Weil & Brown, supra, at § 14:138.30.) The Parties have satisfied these requirements.

The purpose of preliminarily evaluating class action settlements is to determine whether the proposed settlement is within the “range of reasonableness” for possible approval, and whether it is worthwhile to issue notice to the class and schedule a formal hearing. (Cabraser, Cal. Class Actions and Coordinated Proceedings (2d ed. 2017) § 14.02.) A presumption of fairness applies if there has been arm’s length bargaining, investigation and discovery have been sufficient to allow counsel and the court to act intelligently, class counsel is experienced in similar litigation, and the percentage of class members who object to the settlement is small. (In re Microsoft I–V Cases (2006) 135 Cal.App.4th 706, 723; 7-Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1146.)

Here, the Parties reached the proposed settlement through mediation with the Honorable Robert T. Altman (Ret.) (Loker Decl., ¶ 8.) Class counsel is experienced with this type of litigation and

has sufficient discovery and data to make an informed decision. The Parties conclude that the settlement is fair, reasonable, adequate and in the best interest of the class.

The preliminary approval hearing is also appropriate for the certification of a settlement class if the class has not yet been certified. Under California law, the basic requirements to sustain a class action are an ascertainable class, a well-defined community of interest in the questions of law and fact involved, and substantial benefits from certification that render proceeding as a class superior to the alternatives. (Code Civ. Proc., § 382; Weil & Brown, supra, Ch. 14-C, § 14:11, Brinker Restaurant Corp. v. Sup. Ct. (2012) 53 Cal.4th 1004, 1021.)

The proposed class herein consists of 34,000 class members, defined as “all persons within California who purchased a Tinder Plus subscription at any time between March 2, 2015 and June 11, 2015.” (Mtn., p. 3, ll. 7-9.) The class members’ settlement is nonmonetary.1 Depending on their subscription status, a class member will receive either: one free month of Tinder Plus, valued between $9.99 and $19.99; or, a one-time allotment of Super Likes, also valued between $9.99 and $19.99. (Loker Decl., ¶ 10.b.; Settlement Agreement, § 3.1.) Nonmonetary settlements, sometimes referred to as “coupon” settlements, are routinely held to be fair and reasonable, particularly where, as here, the settlement occurred after an arm’s length negotiation with experienced counsel. (Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 48, 54 [upholding nonmonetary settlement of one month free membership upgrade or one month free membership]; Nordstrom Comm’n Cases (2010) 186 Cal.App.4th 576, 580, 590 [settlement including Nordstrom merchandise vouchers upheld]; In re Microsoft I–V Cases, supra, 135 Cal.App.4th at pp. 710, 711-713 [affirming approval of settlement where 100 percent of settlement was paid in vouchers]; Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 247 [coupons were fair portion of settlement also involving cash refunds, reimbursements, and reinstatement of free service] [disapproved of on another ground in Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 269]; Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1802, 1804 [$400 coupon which could be applied against purchase price of new car, with no cash payable to the class members, was fair as settlement of claims that vehicles were defective].) If the court has certified the action as a class action, notice must be given to the class members containing an explanation of the proposed settlement, procedures for class members to follow in filing written objections to the settlement, and procedures for arranging to appear at the settlement hearing to state any objections to the proposed settlement. (Cal. Rules of Court, rule 3.769(f); Weil & Brown, supra, Ch. 14-C, § 14:139.11.)

Here, the proposed notice will be provided to the class members via email, will contain a detailed summary of the settlement, and will provide Plaintiff’s counsel’s contact information. (Settlement Agreement, § 5.4.) Inasmuch as the class members needed an email address to subscribe to Defendant’s service, the Court finds the members’ receipt of the notice via email reasonable. (Chavez v. Netflix, Inc., supra, 162 Cal.App.4th 43 at p. 57 [where class members conduct business with defendant over the internet, an email “summary notice” of the essential terms of a proposed settlement, coupled with a link to a website with more information, was “a
1 As part of the settlement, Tinder shall also establish a settlement fund in the amount of $65,000 within 30 days of the final judgment in this action, representing the maximum amount to be paid to Plaintiff’s counsel as attorneys’ fees and litigation costs. (Loker Decl., ¶ 10.f.)

sensible and efficient way of providing notice”].) Plaintiff’s counsel will maintain the settlement documents on its website through the date of Final Approval. (Settlement Agreement, § 5.5.)

The motion for preliminary approval of class action settlement is granted. The Parties have satisfied the procedural requirements for preliminary approval of a class action settlement and the settlement amount appears fair and reasonable. The date for the final settlement approval shall be set at the hearing.

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Mayra Guerrero v. Prime Masonry Materials

April 10, 2018, 10:34 am

≫ Next: Steven Oliva vs. Charter Communications, Inc

≪ Previous: Kyle Hansen v. Tinder, Inc

Mayra Guerrero v. Prime Masonry Materials, et al.
Case No: 17CV03332
Hearing Date: Tue Apr 10, 2018 9:30

Nature of Proceedings: Motion to be Relieved as Counsel; Motion Compel Answers; Motion Compel Responses

Two Motions to Compel

Attorneys

NordstrandBlack PC by Matthew Morrison, Attorney for Plaintiff

George J. Hernandez, Attorney for Defendant

Rulings:

1. Plaintiff’s lawyers NordstrandBlack PC’s request to be relieved as counsel is GRANTED.

2. Defendants’ Motions to Compel are CONTINUED to May 29, 2018, at 9:30am in anticipation that Plaintiff will either (a) have a new lawyer in place who will appear and respond to the Motions on that date and time, or (b) will elect to go forward and represent herself.

3. In the event Plaintiff has not secured the assistance of a lawyer by that date and time, the Court orders Plaintiff, Mayra Guerrero, to appear in this courtroom on May 29, 2018, at 9:30 to advise the Court on the progress of obtaining a lawyer or tell the Court she will proceed by self-representation.

4. The Court will not, at this juncture, modify, vacate or extend the Case Management Conference date of July 31, 2018, or the Mandatory Settlement Conference date of August 31, 2018, or the Trial Date of September 18, 2018. Plaintiff must assume, until further order of this Court that those dates remain in place. However, the Court will very likely modify and extend those dates when a new lawyer comes into the case to accommodate the new lawyer or Plaintiff elects to proceed by self-representation. On the other hand, the Court is not likely to modify or extend those dates if (1) there is no new lawyer retained and (2) Plaintiff elects not to proceed as a self-represented litigant, except for good cause shown.

5. ALERT TO PLAINTIFF Mayra Guerrero. If no new lawyer is in place, or Plaintiff has not shown good cause why her case should not be dismissed because there has been no appearance by Plaintiff before or on the next CMC date of July 31, 2018, the Court may dismiss her case.

5. NordstrandBlack PC will give notice to Plaintiff and Defendants of this Order and will promptly file a Proof of Service.

Analysis:

Defendants filed two Motions to Compel on March 2, 2018, and set the hearing for April 3, 2018. There is no response in the file.

On March 13, 2018, counsel for Plaintiff filed a motion to be relieved as counsel and filed the required supporting declaration stating that counsel for plaintiff Mayra Guerrero has been unable to establish contact with Ms. Guerrero for several months; attempts to contact Ms. Guerrero by phone, e-mail, U.S. Mail, and in person at her last known address have been unsuccessful. The Motion was set for April 10, 2018.

The declaration acknowledges that there are significant “dates” set for the case:

April 3, 2018 – Response to Motions to Compel

July 31, 2018 – Case Management Conference.

August 31, 2018 – Mandatory Settlement Conference.

September 18, 2018 – Trial Call.

This Court concludes that it is necessary to decide the Motion to Withdraw as Counsel before deciding the issues related to the Motions to Compel.

Conclusions: The motion to withdraw as counsel should be granted under these circumstances. At the same time, the Plaintiff needs to be alerted of the consequences of this decision and that the Motion(s) to compel are still viable.

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Steven Oliva vs. Charter Communications, Inc

April 11, 2018, 7:48 am

≫ Next: KHOREN FAJA MOUGHALIAN VS SERGIO BECERRA JR

≪ Previous: Mayra Guerrero v. Prime Masonry Materials

Case Number: BC676269 Hearing Date: April 11, 2018 Dept: 53

steven oliva vs. charter communications, inc. , et al.; BC676269, April 11, 2018

[Tentative] Order RE: DEFENDANT CHARTER COMMUNICATIONS, INC.’S SPECIAL MOTION TO STRIKE PORTIONS OF PLAINTIFF STEVEN OLIVA’S COMPLAINT (ANTI-SLAPP MOTION) PURSUANT TO CODE OF CIVIL PROCEDURE § 425.16

Defendant CHARTER COMMUNICATIONS, INC.’S Special Motion to Strike Portions of Plaintiff Steven Oliva’s Complaint (Anti-SLAPP Motion) Pursuant to Code of Civil Procedure § 425.16 is GRANTED.

BACKGROUND

On September 19, 2017, Plaintiff Steven Oliva (“Plaintiff”) initiated the instant action against Defendant Charter Communications, Inc. (“Defendant”). The Complaint asserts nine causes of action stemming from Plaintiff’s termination of employment by Defendant, as follows: (1) wrongful termination in violation of contract; (2) wrongful termination in violation of public policy; (3) harassment; (4) discrimination on the basis of sex, national origin, and genetic information; (5) failure to prevent discrimination and harassment; (6) defamation; (7) retaliation; (8) intentional infliction of emotional distress; and (9) negligent infliction of emotional distress.

On January 17, 2018, Defendant removed this action to the United States District Court, Central District on the basis of federal question jurisdiction. (Silverman Decl., ¶ 3.) On January 29, 2018, Plaintiff filed a Motion to Remand. (Silverman Decl., ¶ 4.) On February 19, 2018, Defendant filed an anti-SLAPP Motion in in federal court. (Silverman Decl., ¶ 5, Ex. 1.) On March 7, 2018, Defendant received notice of the federal court’s order remanding the case to state court, after dismissing Plaintiff’s federal claims. (Silverman Decl., ¶ 6.)

Defendant now moves to strike portions of the first cause of action for wrongful termination in violation of contract, second cause of action for wrongful termination in violation of public policy, fourth cause of action for discrimination, sixth cause of action for defamation, eighth cause of action for intentional infliction of emotional distress, and ninth cause of action for negligent infliction of emotional distress pursuant to Code of Civil Procedure section 425.16 on the basis that those causes of action contain allegations that are based on protected activity and that Oliva cannot show a likelihood of success on these claims. Plaintiff opposes.

Legal Standard

The anti-SLAPP statute (Code Civ. Proc., § 425.16) is “a mechanism through which complaints that arise from the exercise of free speech rights can be evaluated at an early stage of the litigation process and resolved expeditiously.” (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 (internal quotations omitted).) Courts use a two-step process for determining whether an action is a strategic lawsuit against public participation, or a SLAPP. First, the court determines whether the defendant has established that the challenged claim arises from protected speech. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If such a showing has been made, the court “determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid.)

EVIDENCE

The Court sustains Defendant’s objections to the exhibits attached to Plaintiff’s opposition on the basis that none of the exhibits are properly authenticated.

The Court grants Defendant’s request for judicial notice as to Exhibit 4 of the Declaration of Erika A. Silverman (the TRO, Workplace Violence Restraining Order, and Declaration of Anthony Lamonea in Support of the Workplace Violence Restraining Order.)

Discussion

A. Timeliness of Defendant’s Motion

Plaintiff objects that the instant motion was not timely filed. A special motion to strike may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper. (Code Civ. Proc. § 425.16(f).) The Proof of Service of Summons filed on January 26, 2018 indicates that the summons and Complaint were served on January 26, 2018. Defendant acknowledges that the Complaint was, in fact, served earlier, on December 20, 2017. (Silverman Decl., ¶ 2.) In any event, the Court finds that the instant Motion was timely filed, as it was filed within 60 days of service of the complaint in federal court. (Silverman Decl., ¶ 5.) After the case was remanded to state court, Defendant promptly filed the instant motion. (Silverman Decl., ¶ 7.) Therefore, Plaintiff’s objection is overruled.

Plaintiff also objects on the basis that Defendant failed to meet and confer in good faith prior to the filing of the instant Motion. As there is no meet and confer requirement in Code of Civil Procedure section 425.16, the Court overrules Plaintiff’s objection.

B. Prong One – Arising from Protected Speech

“[T]he only thing the defendant needs to establish to invoke the protection of the SLAPP statute is that the challenged lawsuit arose from an act on the part of the defendant in furtherance of her right of petition or free speech.” (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 307.)

An act in furtherance of a person’s right of petition or free speech includes the following:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

(CCP §425.16(e).)

In determining whether a cause of action arises from protected conduct, the court focuses on “the allegedly wrongful and injury-producing conduct that provides the foundation for the claims.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) “[T]he critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.) In making this determination, the Court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Id.) “The anti-SLAPP statute should be broadly construed and a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a garden variety tort claim when in fact the liability claim is predicated on protected speech or conduct.” (Ramona Unified Sch. Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519 (internal citations omitted).)

In the Complaint, Plaintiff references a Workplace Violence Restraining Order and TRO that Defendant sought against him prior to his termination and alleges that Defendant wrongfully terminated him, among other things, for the assertions set forth in the restraining orders, that the restraining orders were a form of discrimination and defamation, and that the restraining orders caused him emotional distress. (Compl., ¶¶ 9, 14, 15, 16, 28, 46, 49, 50, 51, 54, 57, 58, 60, 73, 75, 80, 81, 83, 84, and 85.) Plaintiff does not dispute that he has asserted claims based on the fact that Defendant brought a TRO and a Workplace Violence Restraining Order against him. Plaintiff also does not dispute that the filing of a TRO and a Workplace Violence Restraining Order are protected activity under the anti-SLAPP statute. (See S.A. Maiden (2014) 229 Cal.App.4th 27, 35 [“initiating and maintaining requests for domestic violence restraining orders” is protected activity “thereby satisfying the first prong of the anti-SLAPP statute”].) Because Plaintiff is seeking relief sought based on allegations of protected activity, Defendant has satisfied its burden on prong one, and the burden shifts to Plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. (See Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)

C. Prong Two – Probability of Prevailing

“[T]he plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Premier Med. Mgmt. Sys., Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476 [internal quotations omitted].) In making its determination, “the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16(b)(2).) “The court does not, however, weigh [defendant’s] evidence against the plaintiff’s, in terms of either credibility or persuasiveness. Rather, the defendant’s evidence is considered with a view toward whether it defeats the plaintiff’s showing as a matter of law, such as by establishing a defense or the absence of a necessary element.” (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.)

Here, the Court finds that Plaintiff has failed to make a prima facie evidentiary showing that would sustain judgment in Plaintiff’s favor. For one, as noted by Defendant, Plaintiff has submitted no admissible evidence in support of his opposition. Further, also noted by Defendant, the litigation privilege would preclude Defendant’s liability on Plaintiff’s claims involving the filing of the TRO and the Workplace Violence Restraining Order. (See Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 888-889 [holding that filing of an application for a temporary restraining order is protected by the litigation privilege and thus precludes a plaintiff’s ability to show probability of prevailing for purposes of anti-SLAPP motion].)

The Court notes that Plaintiff makes certain extraneous arguments about Defendant’s removal of this case to federal court as well as a request for entry of default judgment, which are not properly before the court. Therefore, the Court declines to grant any such relief.

CONCLUSION

Based on the foregoing, Defendant’s Special Motion to Strike Portions of Plaintiff Steven Oliva’s Complaint (Anti-SLAPP Motion) Pursuant to Code of Civil Procedure § 425.16 is GRANTED. The portions of the Complaint identified by Defendant in its Notice of Motion and accompanying proposed Order are stricken.

Defendant is ordered to provide notice of this ruling.

DATED: April 11, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court

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KHOREN FAJA MOUGHALIAN VS SERGIO BECERRA JR

April 11, 2018, 7:52 am

≫ Next: JANET ROE VS DAVID PARK

≪ Previous: Steven Oliva vs. Charter Communications, Inc

Case Number: BC651625 Hearing Date: April 11, 2018 Dept: 93

MOVING PARTY: Defendant West Coast Materials, Inc.

RESPONDING PARTY: None

Motion for an Order Imposing Terminating, Issue, Evidentiary, and Monetary Sanctions

The court considered the moving papers. No opposition or reply was filed.

BACKGROUND

On February 24, 2017, Plaintiff Khoren Faja Moughalian filed this action against Defendants Sergio Becerra, Jr., and West Coast Materials, Inc. for motor vehicle negligence.

Trial is set for August 24, 2018.

Discussion

Defendant West Coast Materials, Inc. (“Defendant”) requests that the Court impose terminating sanctions, or in the alternative, issue, evidentiary, and monetary sanctions, against Plaintiff Khoren Faja Moughalian (“Plaintiff”). Defendant argues that Plaintiff failed to comply with the court’s order dated December 4, 2017, by not serving responses to Defendant’s discovery requests or paying monetary sanctions.

If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the Court may impose monetary, issue, evidence, or terminating sanctions. (See Code Civ. Proc., §§ 2023.030 [sanctions generally]; 2025.450, subd. (d) [sanctions re depositions]; 2030.290, subd. (c) [sanctions re interrogatories]; 2031.300, subd. (c) sanctions re requests for production of documents].) Under Code of Civil Procedure section 2023.010, misuses of the discovery process include “[f]ailing to respond or to submit to an authorized method of discovery” and “[d]isobeying a court order to provide discovery.”

Generally, the trial court may terminate a party’s action as a sanction for discovery abuse “after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Id. at pp. 1244–1246 [discussing cases]; see also, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617–1622 [terminating sanctions imposed when party repeatedly failed to comply with single discovery order]; Laguna Auto Body v. Farmers Ins. Exch. (1991) 231 Cal.App.3d 481, 491, disapproved on another ground in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4 [terminating sanctions imposed when party violated single discovery order and several discovery statutes].)

In this context, willfulness does not require a wrongful intention. A simple lack of diligence may be deemed willful where the party knew there was an obligation, had the ability to comply, and failed to do so. (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 pp. 787–788.) The party with the obligation to respond to discovery bears the burden of showing that the failure to respond or comply was not willful. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252–253.) A court is not required to impose sanctions in a graduated fashion, but may apply “the ultimate sanction” against a party who has persisted in refusing to comply with discovery obligations. (Deyo, supra, 84 Cal.App.3d at p. 793.) “The unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.” (Scherrer v. Plaza Marina Commercial Corp. (1971) 16 Cal.App.3d 520, 524.)

On December 4, 2017, the Court granted Defendant West Coast Materials, Inc.’s motion for an order compelling Plaintiff to respond to Defendant’s form interrogatories, special interrogatories, and demand for production of documents, as well as pay monetary sanctions in the amount of $705 for necessitating the discovery motions. Responses and payment of sanctions were due on or before December 30, 2017 and January 9, 2018, respectively. To date, Plaintiff has failed to respond to discovery or pay the monetary sanctions as ordered by the Court.

The Court finds that Plaintiff has engaged in conduct that is a misuse of the discovery process by disobeying the Court’s December 4, 2017 order to provide discovery. (See Code Civ. Proc., §§ 2023.010, subds. (d), (g); 2023.030.) The Court thus finds that it is appropriate, and exercises its discretion, to impose a terminating sanction against Plaintiff pursuant to Code of Civil Procedure section 2023.030, subdivision (d). The Court therefore orders that this action is dismissed as to Defendant West Coast Materials, Inc. (Code Civ. Proc., § 2023.030 subd. (d)(3).)

Whether Plaintiff complied with the Court’s order to pay monetary sanctions of $705 to Defendant within thirty days is of no significance, as this court has not considered that as a factor. The failure of a party to pay court-ordered sanctions is not an appropriate basis for a terminating sanction. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 610, 615.) The monetary sanction order can be collected as a money judgment under the Enforcement of Judgments Law. (See Code Civ. Proc., § 680.010.)

Accordingly, the motion is GRANTED.

Defendant West Coast Materials, Inc. is ordered to provide notice of this ruling and to lodge a proposed judgment with the Court.

IT IS SO ORDERED.

DATED: April 11, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court

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JANET ROE VS DAVID PARK

April 11, 2018, 7:54 am

≫ Next: WAYLAN WONG VS ARACELLY ARCEO SOLIS Docket

≪ Previous: KHOREN FAJA MOUGHALIAN VS SERGIO BECERRA JR

Case Number: BC615789 Hearing Date: April 11, 2018 Dept: 98

ORDER RE: DEFENDANTS’ MOTION TO COMPEL DISCOVERY PURSUANT TO CCP § 2017.220; MOTION GRANTED

April 1, 2016, Plaintiff Janet Roe (“Plaintiff”) filed this action against Defendants David Park (“Park”), Hacienda La Puente Unified School District (“School District”), and Cheli McReynolds (“McReynolds”) for negligence per se and battery as to Park and negligent supervision as to School District and McReynolds. Plaintiff alleges that from August 2010 to August 2012, she was a student at Los Altos High School and was sexually molested by Park. School District and McReynolds (“Defendants”) move to compel discovery of Plaintiff’s prior sexual conduct, pursuant to Code of Civil Procedure section 2017.220.

In a civil action alleging sexual harassment, sexual assault, or sexual battery, a party seeking discovery of plaintiff’s sexual conduct with individuals other than the alleged perpetrator shall establish specific facts showing: (1) there is good cause for that discovery, (2) the matter sought to be discovered is relevant to the subject matter of the action, and (3) the matter sought to be discovered is reasonably calculated to lead to the discovery of admissible evidence. (Code of Civ. Proc., § 2017.220, subd. (a).)

Plaintiff seeks recovery for past and future emotional distress and claims she can no longer have meaningful relationships or trust people, including men, feels she will always be afraid of men, and does not believe she will ever have the openness, intimacy, and other benefits of a normal marriage. Defendants contend they have identified witnesses, including: Ronald Cerecedes (“Cerecedes”), an ex-boyfriend who lived with Plaintiff for over one year after the events with Park occurred; Barbara Barlow, a nurse practitioner who regularly saw Plaintiff and discussed sexual activity and birth control; and Dr. Elaine Kindle, a therapist who Plaintiff began seeing in 2016 as a result of the events with Park.

Defendants prepared to depose these individuals, but Plaintiff objected to discovery of Plaintiff’s sexual conduct with anyone besides Park. (Declaration of Randall L. Winet, ¶ 5.) The parties met and conferred, but Plaintiff contends the filing of this action did not waive her right to privacy with regard to sexual matters. (Winet Decl., ¶¶ 6, 7.)

Article I, section 1 of the California Constitution recognizes the right to privacy as an inalienable right. This right to privacy extends to sexual relations. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198.) Defendants argue Plaintiff’s right to privacy must be balanced with their right to discover information relevant to Plaintiff’s claims and damages in order to defend themselves. Where privacy rights are balanced against a party’s right to discovery, it is “essential to measure the closeness of the fit between the requested discovery and the allegations of the complaint.” (Id. at p. 1200.)

Here, Defendants argue they seek discovery relating only to Plaintiff’s emotional and mental state and ability to form and maintain relationships, which Plaintiff has already testified to at her deposition and which she has put at issue in her complaint. Defendants contend this evidence is admissible or likely to lead to admissible evidence because they are not seeking to introduce it to prove the absence of injury or consent. (Evid. Code, § 1106.) Rather, they are seeking information to impeach Plaintiff’s credibility and claims.

Defendants submit the declaration of Steven A. Elig, M.D. (“Dr. Elig”), the psychiatrist who performed an independent medical examination of Plaintiff, who opines that key aspects of Plaintiff’s credibility are in doubt, including statements regarding her past experiences. (Declaration of Steven A. Elig, ¶ 2.) Dr. Elig also opines Plaintiff appears to amplify her past, present and future symptoms and functional impairment, and that additional facts relating to her relationships with males during and after the subject incidents could have an effect on his opinions regarding Plaintiff’s credibility. (Elig Decl., ¶¶ 4, 5.)

Plaintiff argues her right to privacy of her sexual conduct is not waived and Defendants have not met their burden of showing good cause for discovery. Plaintiff argues discovery of her sexual conduct with others is not justified on issues of credibility or to obtain impeachment evidence and that instead, such discovery must be relevant and necessary to the determination of the cause of plaintiff’s emotional distress.

The Court disagrees. The Court finds this case is distinguishable from Knoettgen v. Superior Court (1990) 224 Cal.App.3d 11, which Plaintiff cites for support. There, the defendant sought discovery of information regarding two prior sexual assaults on the plaintiff as a child. However, the defendant argued this evidence showed a possible “alternative source of any emotional distress suffered . . . and the extent of damages . . . suffered from the acts alleged in her Complaint.” (Id. at p. 14.) By contrast, here, evidence by Cerecedes, Barlow, and Dr. Kindle that Plaintiff is able to form and maintain normal and healthy relationships with men despite the incidents with Park, would be directly contrary to Plaintiff’s claims for damages and emotional distress.

The Court finds there is good cause to discover the information sought, limited only to Plaintiff’s ability to form and maintain meaningful relationships, to trust men, and to have openness, intimacy, and other benefits of a normal marriage.

The Motion to compel discovery pursuant to Section 2017.220 is GRANTED.

Plaintiff’s request for monetary sanctions pursuant to Section 2017.220, subdivision (b), is DENIED.

Moving party to give notice.

↧

WAYLAN WONG VS ARACELLY ARCEO SOLIS Docket

April 12, 2018, 10:28 am

≫ Next: WEINSTEIN WEISS & ORDUBEGIAN LLP VS BARRY FISCHER Docket

≪ Previous: JANET ROE VS DAVID PARK

Case Number: BC663727
WAYLAN WONG ET AL VS ARACELLY ARCEO SOLIS
Filing Courthouse: Stanley Mosk Courthouse

Filing Date: 06/05/2017
Case Type: Motor Vehicle – PI/PD/WD (General Jurisdiction)
Status: Pending

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04/12/2018 at 01:30 pm in Department 93 at 111 North Hill Street, Los Angeles, CA 90012
Motion to Compel

11/19/2018 at 10:00 am in Department 4 at 312 North Spring Street, Los Angeles, CA 90012
Final Status Conference

12/05/2018 at 08:30 am in Department 4 at 312 North Spring Street, Los Angeles, CA 90012
Jury Trial

06/05/2020 at 08:30 am in Department 4 at 312 North Spring Street, Los Angeles, CA 90012
OSC RE Dismissal

BREITER BRIAN J. – Attorney for Plaintiff/Petitioner

CHAN YINLERTHAI – Plaintiff/Petitioner

DOES 1 TO 10 – Defendant/Respondent

FORD WALKER HAGGERTY & BEHAR LAW O/O – Attorney for Defendant/Respondent

SOLIS ARACELLY ARCEO – Defendant/Respondent

WONG WAYLAN – Plaintiff/Petitioner

Documents Filed (Filing dates listed in descending order)

04/04/2018 Notice (OF NON-OPPOSITION TO DEFENDANT’S MOTION TO COMPEL PLAINTIFFS’ RESPONSES TO SPC. INTERROGATORIES (SET ONE) )
Filed by Attorney for Defendant/Respondent

04/04/2018 Notice (OF NON-OPPOSITION TO DEFENDANT’S MOTION TO COMPEL PLAINTIFFS’ RESPONSES TO FORM INTERROGATORIES (SET ONE), AND REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $960.00 AGAINST PLAINTIFFS)
Filed by Attorney for Defendant/Respondent

04/04/2018 Notice (OF NON-OPPOSITION TO DEFENDANT’S MOTION TO COMPEL PLAINTIFFS’ RESPONSES TO REQUEST FOR DOCUMENTS (SET ONE) )
Filed by Attorney for Defendant/Respondent

01/25/2018 Motion to Compel (RESPONSES TO SPECIAL INTERROGATORIES )
Filed by Attorney for Defendant/Respondent

01/25/2018 Motion to Compel (RESPONSES TO FORM INTERROGATORIES )
Filed by Attorney for Defendant/Respondent

01/25/2018 Motion to Compel (RESPONSES TO REQUEST FOR DOCUMENTS )
Filed by Attorney for Defendant/Respondent

07/18/2017 Demand for Jury Trial
Filed by Attorney for Defendant/Respondent

07/18/2017 Answer to Complaint
Filed by Attorney for Defendant/Respondent

07/18/2017 Receipt
Filed by Attorney for Defendant/Respondent

06/19/2017 Proof of Service
Filed by Attorney for Plaintiff/Petitioner

06/05/2017 Complaint

Proceedings Held (Proceeding dates listed in descending order)
None