Superior Court, State of California



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(2) Other side by phone or email that you plan to appear at the hearing to contest the ruling

(California Rule of Court 3.1308(a)(1) and Local Rule 8.E.)

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|LINE # |CASE # |CASE TITLE |RULING |

|LINE 1 |23CV413206 |People of The State of California vs |The Parties are ordered to appear for hearing on order of examination. |

| | |Angela Corona Torres | |

|LINE 2 | 22CV400956 |Marilyn Rojas vs CARPIGIANI NORTH AMERICA |Defendants’ Motion to Strike is DENIED. Please scroll down to Line 2 for full |

| | |et al |tentative opinion. Court to prepare formal order. |

|LINE 3 |22CV402881 |USA Auto Supply & Lubricants, Inc. vs |Motul USA, Inc.’s Demurrer is SUSTAINED without leave to amend. An amended notice|

| | |Yousef Hamamdeh et al |of motion with this May 23, 2023 hearing date was served on Plaintiff on March 30,|

| | | |2023. No opposition was filed. Failure to oppose a motion may be deemed a |

| | | |consent to the granting of the motion. CRC 8.54(c). Moreover, Plaintiff failed |

| | | |to appear at the initial case management conference and does not appear to have |

| | | |obtained counsel although advised that it must be represented by counsel because |

| | | |it is a corporation. Plaintiff’s actions (or lack thereof) evince Plaintiff’s |

| | | |failure to engage in the litigation it commenced. There is also good cause to |

| | | |SUSTAIN Motul USA, Inc.’s Demurrer under the rule of exclusive concurrent |

| | | |jurisdiction. Moving party to prepare formal order. |

|LINE 4 |22CV402881 |USA Auto Supply & Lubricants, Inc. vs |Motul USA, Inc.’s Motion to Strike is GRANTED. An amended notice of motion with |

| | |Yousef Hamamdeh et al |this May 23, 2023 hearing date was served on Plaintiff on March 30, 2023. No |

| | | |opposition was filed. Failure to oppose a motion may be deemed a consent to the |

| | | |granting of the motion. CRC 8.54(c). Moreover, Plaintiff failed to appear at the|

| | | |initial case management conference and does not appear to have obtained counsel |

| | | |although advised that it must be represented by counsel because it is a |

| | | |corporation. Plaintiff’s actions (or lack thereof) evince Plaintiff’s failure to |

| | | |engage in the litigation it commenced. There is also good cause to grant this |

| | | |motion to strike the complaint in its entirety under Civil Code of Procedure |

| | | |section 435 on the grounds that a corporation must be represented by counsel, and |

| | | |Plaintiff here admits it is a corporation and admits it does not have counsel. |

| | | |Moving party to prepare formal order. |

|LINE 5 |22CV408665 |J QUOTE VELOCITY, LLC, a Delaware Limited |WITHDRAWN |

| | |Liability Company vs Hi.Q, Inc., a | |

| | |Delaware Corporation et al Jeffrey Hull vs| |

| | |Courtney Hull | |

|LINE 6 |19CV352990 |Robert Villarreal et al vs Ford Motor |Given the Parties’ stipulation, this motion is continued to June 22, 2023 at 9 |

| | |Company et al |a.m. in Department 6. |

|LINE 7 |21CV377754 |Alexzandra Scully vs John Brauman et al |OFF CALENDAR |

|LINE 8 |21CV385427 |Urvashi Bhagat vs Hong Guo et al |Pursuant to Code of Civil Procedure section 1048, the Court consolidates this case|

| | | |with small claims Case No. 22SC086810. Case No. 21CV385427 shall be the lead |

| | | |case. Court to prepare a formal order. |

| | | | |

| | | |Defendant’s Motion for Protective Order regarding Form Interrogatories (Set Two) |

| | | |is GRANTED. Plaintiff already served these exact requests on Defendant earlier. |

| | | |Defendant’s Motion for Protective Order is otherwise DENIED, without prejudice to |

| | | |asserting objections and/or referring Plaintiff to earlier discovery responses |

| | | |where appropriate. The Parties’ respective motions for sanctions are DENIED. |

| | | |Defendant is ordered to provide discovery responses consistent with this order |

| | | |within 20 days of service of the final order. Please scroll down to Line 8 for |

| | | |full tentative ruling. Court to prepare formal order. |

|LINE 9 |22CV400732 |John Bigby et al vs CAROL CARNEVALE et al |Plaintiffs John Bigby’s and Lisa Plank’s motion to compel is GRANTED. Plaintiffs’|

| | | |motion for sanctions is DENIED. Exhibits K and L to the Declaration of John Van |

| | | |Loben Sels are stricken; Plaintiffs are ordered to resubmit those documents |

| | | |pursuant to the terms of the protective order. Please scroll down to Line 9 for |

| | | |full tentative opinion. Court to prepare formal order. |

|LINE 10 |16CV298149 |The Law Firm of Kallis & Associates, P.C. |Joseph P. Padgett’s Motions for Attorney Fees are GRANTED. Padgett is awarded a |

| | |vs. Joseph P. Padgett |total of $137,496.44 in attorney fees. Please scroll down to Line 10 for full |

| | | |tentative opinion. Court to prepare formal order. |

|LINE 11 |20CV372500 |Joseph Perez vs Fidelity National Title et|Cross-Defendant Joseph R. Perez’s Motion to Set Aside Default is GRANTED. The |

| | |al |default is set aside, and Perez shall have 20 days from service of the final order|

| | | |to file a response to the cross-complaint. Please scroll down to Line 11 for full |

| | | |tentative ruling. Court to prepare formal order. |

|LINE 12 |21CV392856 |Vince Nakayama vs Patrick Foy |Vince Nakayama’s Motion for Order Assigning to Judgment Creditor Judgment Debtor’s|

| | | |Rights to Payment from Midtown Realty is GRANTED. A notice of motion with this |

| | | |May 23, 2023 hearing date was served. No opposition was filed. Failure to oppose|

| | | |a motion may be deemed a consent to the granting of the motion. CRC 8.54(c). The|

| | | |Court also has reviewed the papers and finds good cause to grant this motion. |

| | | |Moving party to prepare formal order. |

|LINE 13 |21CV392856 |Vince Nakayama vs Patrick Foy |Vince Nakayama’s Motion for Order Charging Judgment Debtor’s Membership Interest |

| | | |in North Point Ryans Way, LLC is GRANTED. A notice of motion with this May 23, |

| | | |2023 hearing date was served. No opposition was filed. Failure to oppose a |

| | | |motion may be deemed a consent to the granting of the motion. CRC 8.54(c). The |

| | | |Court also has reviewed the papers and finds good cause to grant this motion. |

| | | |Moving party to prepare formal order. |

|LINE 14 |22CV406496 |QIANG ZHU vs TESLA MOTORS, INC. |This motion is off calendar. The Parties informed the Court on March 28, 2023 |

| | | |that this matter had resolved, the release has been signed, and settlement is |

| | | |being perfected. The Parties are set to appear for review after settlement on |

| | | |July 6, 2023 at 10:00 a.m. in Department 6. |

|LINE 15 |19CV346663 |Sz Huang et al vs Tesla Inc. et al |The Parties are scheduled to appear and update the Court regarding their efforts |

| | | |to informally resolve Plaintiff’s Motion to Compel Tesla’s Person Most Qualified |

| | | |deposition. |

|LINE 16 |22CV405323 |Octavio Mendoza vs Irma Cruz et al |Plaintiff’s motion to compel is GRANTED. Defendant is ordered to supplement her |

| | | |responses to Form Interrogatory Nos. 12.1 and 15.1 within 20 days of service of |

| | | |this final order. Plaintiff’s motion for sanctions is DENIED. The Court finds |

| | | |Plaintiff failed to adequately meet and confer before bringing this motion, which |

| | | |meet and confer may have made the motion unnecessary. Please scroll down to Line |

| | | |16 for full tentative opinion. Court to prepare formal order. |

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Case Name: Rojas v. Carpigiani North America, et al.

Case No.: 22CV400956

Before the Court is Defendant Thomas A. Bailey dba JTB Distributors (erroneously sued herein as JTB Distributors, Inc.) (“JTB”) motion to strike portions of plaintiff Marilyn Rojas’ First Amended Complaint (“FAC”). Pursuant to California Rule of Court 3.1308, the Court issues its tentative ruling.

I. Background

A. Factual

This is an action for products liability. According to the Complaint, Plaintiff was employed at Sweet Fix Creamery in San Jose, where her job duties and responsibilities included making ice cream with and cleaning the LB502 DGT, a batch freezer manufactured by Ali Holding S.r.l. and its wholly owned subsidiaries, defendants Carpigiani North America (“Carpigiani”) and Ali Group North America (“Ali Group”) and distributed by JTB. (FAC, ¶¶ 6-7, 17.) Plaintiff alleges she suffered serious injuries to her left hand as the result of defects in the freezer. (Id., ¶ 16.) These defects included, among other things: an ineffective and removable cover grate without microswitch; a plastic cover without a microswitch; a defective canister design; a defective blade design; and the absence of micro-switches and interlock mechanisms that would stop the blade from spinning when individuals are exposed to moving parts, including the batch freezer internal mechanism and blade. (Id., ¶ 18.)

JTB instructed Plaintiff that, to clean the inside of the freezer, the machine had to be cleaned while in operation, and further advised that the machine could be cleaned without the cover grate being properly installed. (FAC, ¶ 20.) JTB sold the freezer to Plaintiff’s employer without the cover grate and instructed it to use the machine without it. (Id.) Carpigiani freezers such as the one at issue do not have signs or labels warning users not to operate them when the cover grate is open and there is no visible indication that items placed into the entry chute can be severely harmed or that the freezer should not be run while cleaning. (Id., ¶ 22.) However, because the Carpigiani freezers do not come with a cleaning kit or wand, to clean them, one must reach their hands down the entrance of the chute and clean it manually. (Id.)

On December 2, 2021, pursuant to JTB’s instructions, Plaintiff was cleaning the freezer while it was in operation when she suffered a severe injury. (FAC, ¶ 33.) Specifically, Plaintiff removed the cover grate entirely and reached down the entrance of the freezer chute to clean. (Id.) While cleaning, the blades rose within 4 or 5 inches of the chute, and came into contract with Plaintiff’s left hand, severing two of her fingers and lacerating a third. (Id., ¶ 34.) While doctors were ultimately able to reattach two of the three damaged fingers, Plaintiff has completely lost function in the affected fingers and her ring finger had to be surgically amputated. (Id., ¶ 36.)

Plaintiff alleges that the defendants were aware, or should have been aware, of the dangers and risk of injuries to its users caused by Carpigiani batch freezers since at least 2007, particularly that they should not be cleaned while operating, that they can continue to operate even without a protective cover grate, and that cleaning while operating can cause serious bodily injuries. (FAC, ¶ 38.) The defendants are also alleged to have been aware of the fact that the cover grate on the chute was flimsy and removable, that at least one individual’s fingers had already been severed when they attempted to clean the freezer while it was operating, and that by not selling or otherwise providing any cleaning kit or wand to Plaintiff’s employer, it was likely that Plaintiff and other employees would clean the freezer with their hands. (FAC, ¶¶ 24-29.) Plaintiff also alleges that the defendants intentionally concealed the defective and dangerous nature of the freezer when they expressly instructed her employer that the freezer was safe to clean while operating. (Id., ¶ 30.)

B. Procedural

Plaintiff filed the initial complaint (the “Complaint”) on June 28, 2022, asserting: (1) negligence (against all defendants); (2) strict products liability- failure to warn (against Carpigiani and Ali Group); (3) strict liability- manufacturing defect (against Carpigiani and Ali Group); (4) strict liability- design defect (against Carpigiani and Ali Group); (5) breach of implied warranty of merchantability (against all defendants); (6) violation of Bus. & Prof. Code § 17200 (the “UCL”) (against all defendants); and (7) negligent infliction of emotional distress (against all defendants).

JTB demurred to the sixth and seventh causes of action on the ground of failure to state facts sufficient to constitute a cause of action and moved to strike portions of the Complaint. (Code Civ. Proc., §§ 430.10, subd. (e), 435 and 436.) Plaintiff opposed both motions. In February 2023, the Court issued an order sustaining the demurrer without leave to amend as to the seventh cause of action and overruling it as to the sixth cause of action. The motion to strike was granted with leave to amend as to Plaintiff’s request for punitive damages and otherwise denied.

On January 19, 2023, Plaintiff filed the operative FAC asserting the same claims as the Complaint, save for cause of action for negligent infliction of emotional distress. On February 14, 2023, JTB filed the instant motion to strike Plaintiff’s request for punitive damages. Plaintiff opposes the motion.

II. Legal Standard and Analysis

The right to recover punitive damages requires proof of “oppression, fraud, or malice” on the part of the defendant by “clear and convincing evidence.”  (Civ. Code, § 3294, subd. (a).)   For pleading purposes, to support a prayer for punitive or exemplary damages, the complaint must allege “ultimate facts of the defendant’s oppression, fraud or malice.”  (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317.)  Simply pleading the statutory terms “oppression, fraud or malice” is insufficient to adequately allege punitive damages.  (Blegen v. Superior Court (1986) 176 Cal.App.3d 503, 510-511.) Therefore, specific factual allegations demonstrating oppression, fraud or malice are required. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)  However, the Court reads the complaint as a whole, thus even conclusory allegations may suffice when read in context with facts alleged as to the defendant’s wrongful conduct.  (Perkins v. Super. Ct. (1981) 117 Cal.App.3d 1, 6-7; Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255).   

Under the punitive damages statute, “malice” is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  (Civ. Code, § 3294, subd. (c)(1).) “Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”  (Id., § 3294, subd. (c)(2).)  “Despicable conduct,” in turn, has been described as conduct that is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.”  (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.)  Finally, “fraud” is defined within the statute as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”  (Civ. Code, § 3294, subd. (c)(3).)    

Previously, the Court granted JTB’s motion to strike Plaintiff’s request for punitive damages because she failed to specifically identify the basis for her request, i.e., plead whether JTB engaged in malicious, oppressive or fraudulent conduct. The Court believes Plaintiff has now corrected this defect and sufficiently plead an entitlement to punitive damages.

Specifically, Plaintiff now alleges JTB engaged in conduct that demonstrated a conscious disregard for the health and safety of consumers (i.e., malice), including:

▪ Knowledge that the batch freezers could cause serious and disfiguring injuries based on an incident in 2007 where an employee’s finger was amputated while cleaning the freezer;

▪ Knowledge that the freezers operated using rapidly spinning metal blades to churn ingredients that a user inserted into a chute and that the metal blades rose upwards, reaching approximately four to five inches from the chute opening;

▪ Knowledge that the freezer’s chute was wide enough that a user could fit their hand and wrist into it, and that the chute was dark to the extent that a user would not be able to see the spinning metal blades contained therein;

▪ Knowledge that the opening of the freezer chute was four to five feet off the ground and thus individuals of shorter to average stature would be physically unable to see inside the chute;

▪ Knowledge that it was not selling or otherwise providing any cleaning kit or wand to Plaintiff’s employer and thus that Plaintiff and other employees would like clean the freezer with their hands;

▪ Despite having the foregoing knowledge, selling and marketing the freezer as safe so that it could continue to profit from sales;

▪ Intentionally concealing the defective and dangerous nature of the freezer when it expressly instructed Plaintiff’s employer that the freezer was safe to clean while operating; and

▪ Instructing Plaintiff that she should clean the freezer while it was operating and that it could be cleaned without the cover grate, despite knowing such an instruction would likely cause Plaintiff to clean the freezer while its blades spun rapidly inches away from the opening of the chute, in the same manner a prior user had injured their fingers. (FAC, ¶¶ 23-33.)

Plaintiff need not allege an intentional harmful animus on the part of JTB to plead malice; a plaintiff can establish a conscious disregard by showing that “the defendant was aware of the probably dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Hock v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48, 61 [internal citations and quotations omitted].) Plaintiff has pleaded as much based on the foregoing allegations, which evidence knowledge on the part of JTB of the danger posed by the blades (especially given a similar prior incident) but a conscious disregard of that danger by instructing consumers that the freezer could be cleaned without the cover grate and while it was in operation. Accordingly, JTB’s motion to strike is DENIED.

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Case Name: Urvashi Bhagat vs Hong Guo et al

Case No.: 21CV385427, 22SC086810

I. Consolidation

At the last hearing, the Court and the Parties addressed whether Case Nos. 21CV385427 and 22SC086810 should be consolidated or otherwise coordinated. Code of Civil Procedure section 1048(a) provides:

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

These cases both arise out of a landlord tenant dispute. Urvashi Bhagat subleased a portion of property from Hong Guo. Min Zhu owns the property Mr. Guo subleased to Ms. Bhagat. The sublease was in violation of Mr. Guo’s lease terms, and he was evicted along with his sub-lessors. In the small claims action, Mr. Guo is suing Ms. Bhagat for $5400, which he claims represents four months of rent. In the unlimited civil action, Ms. Bhagat is suing Mr. Guo and Ms. Zhu for breach of quite enjoyment of premises, harassment of tenant, breach of habitability, housing discrimination, negligence, intentional infliction of emotional distress, and unfair and unlawful business practices. Ms. Zhu claims Ms. Bhagat is seeking in excess of $1,000,000 in her case; Mr. Guo is in default status in that case.

Given the interrelationship between these cases, the Court is consolidating them for all pretrial purposes.

II. Motion to Compel

Before the Court is Defendant’s Motion for Protective Order and Request for Sanctions. Pursuant to California Rule of Court 3.1308, the Court issues its tentative ruling below.

The Parties have been before the Court (Hon. Christopher Rudy) for several prior discovery disputes, and the undersigned Court has reviewed each of those discovery orders. Defendant summarizes that Plaintiff has served the following discovery:

1. 52 Special Interrogatories (Set Two) and 34 Special Interrogatories (Set One)

2. 22 Requests for Production (Set Two) and 12 Requests for Production (Set One)

3. 25 Requests for Admission (Set Two) and 17 Requests for Admission (Set One)

In present motion, Defendant asks the Court to strike Plaintiff’s Set Two Discovery and for $750.00 in attorney fees.

III. Legal Standard

Discovery is generally permitted “regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Cal. Code Civ. Pro. § 2017.010.) Everything that is relevant to the subject matter is presumed to be discoverable. (Id.) The Discovery Act further declares that “the court shall limit the scope of discovery” if it determines that the burden, expense, or intrusiveness of that discovery “clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Cal. Code Civ. Pro. § 2017.020(a); Greyhound Corp. v. Superior Court (1961) 56 C.2d 355, 383-385.) The California Supreme Court teaches in Greyhound that the judge exercising discretion to limit discovery should construe disputed facts liberally in favor of discovery; reject objections such as hearsay that only apply at trial; permit fishing expeditions (within limits), avoid extending limitations on discovery, such as privileges; and, whenever possible, impose only partial limitations rather than denying discovery entirely. (Greyhound Corp. v. Superior Court (1961) 56 C.2d 355, 383-385; see also Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, 1386.)

A party may move for protective order and, “[t]he court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Cal. Code Civ. Pro. §§2031.060 (requests for production), 2030.090 (interrogatories), 2033.080 (requests for admission).

Code of Civil Procedure section 2023.020 states: “the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as result of that conduct.” (See also Moore v. Mercer (2016) 4 Cal.App.5th 424, 448 (failure to participate in meet and confer process in good faith is independent discovery abuse for which sanctions are authorized by statute); Ellis v. Toshiba Am. Info. Sys., Inc. (2013) 218 Cal.App.4th 843, 879-880 (substantial monetary sanction appropriate for failure to cooperate in setting protocol for expert inspection as ordered).) This monetary sanction is mandatory regardless of how the court rules on the offending party’s motion. (Cal. Code Civ. Proc. §2023.020.)

IV. Analysis

Defendant argues Plaintiff’s most recent round of discovery is duplicative to discovery Defendant already responded to and there is thus good cause for a protective order. The Court has reviewed Plaintiff’s recent set of discovery demands attached to Plaintiff’s Opposition and the Opening Declaration of Claudia Lozano. While some of the new demands are duplicative, not all of them are. Accordingly, there is not good cause for the blanket protective order striking all of Plaintiff’s second sets of discovery as Defendant requests.

The Court also finds that sending an email on the last day available to file a motion to compel, then filing the motion to compel on the same day the email was sent, does not constitute meaningful meet and confer as contemplated by the statute. The Court does not agree, as Defendant argues, that the discussions that followed the filing of this motion cured the deficiency in the meet and confer before the motion was filed. The Code clearly requires a robust meet and confer before motions are filed.

If Defendant had (1) answered the discovery requests that were not duplicative and objected to those she believes are duplicative and (2) then provided more time to confer regarding those responses, it is possible that this motion practice could have been avoided.

The Court accordingly rules as follows: Defendant’s Motion for Protective Order regarding Form Interrogatories (Set Two) is GRANTED. Plaintiff already served these exact requests on Defendant earlier. Defendant’s Motion for Protective Order is otherwise DENIED, without prejudice to asserting objections and/or referring Plaintiff to earlier discovery responses where appropriate. The Parties’ respective motions for sanctions is DENIED.

Defendant is ordered to provide discovery responses consistent with this order within 20 days of service of the final order.

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Case Name: John Bigby et al vs CAROL CARNEVALE et al

Case No.: 22CV400732

Before the Court is Plaintiffs John Bigby’s and Lisa Plank’s Motion to Compel Production of Documents and for Sanctions. Pursuant to California Rule of Court 3.1308, the Court issues its tentative ruling.

I. Background

This is an action for breach of contract, breach of fiduciary duty, concealment, negligence, negligent misrepresentation and intentional misrepresentation. Plaintiffs John Bigby and Lisa Plank are former owners of property located at 2140 High Street in Palo Alto (“the Property”). In November 2021, Plaintiffs contracted with Defendants Compass California II, Inc., Carol Carnevale, Nicole Aron, James Steele and Zachar Trailer to sell the Property, which had been their long time home. (Complaint, ¶¶1-2.) Plaintiffs allege Defendants told them the Property was worth $3.5 million and that Plaintiffs would receive at least that price for the Property if they hired Defendants. (Complaint, ¶¶2, 13.)

Plaintiffs further allege Defendants engaged in various acts that caused them to receive only one below market offer for the Property and that the offer was from another Compass agent, guaranteeing that Defendants would receive a double commission if Plaintiffs accepted that single offer. (Complaint, ¶¶3, 14, 18, 20, 21, 23-39.) Defendants allegedly badgered and pressured Plaintiffs until they finally accepted the single low offer and never revealed to Plaintiffs that Defendants were essentially on both sides of the transaction. (Id.) This action followed.

In the present motion, Plaintiffs seek an order directing Defendants to produce unredacted documents and for $7,500 in sanctions.

II. Legal Standard and Analysis

Discovery is generally permitted “regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Cal. Code Civ. Pro. § 2017.010.) Everything that is relevant to the subject matter is presumed to be discoverable. (Id.) The Discovery Act further declares that “the court shall limit the scope of discovery” if it determines that the burden, expense, or intrusiveness of that discovery “clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Cal. Code Civ. Pro. § 2017.020(a); Greyhound Corp. v. Superior Court (1961) 56 C.2d 355, 383-385.) The California Supreme Court teaches in Greyhound that the judge exercising discretion to limit discovery should construe disputed facts liberally in favor of discovery; reject objections such as hearsay that only apply at trial; permit fishing expeditions (within limits), avoid extending limitations on discovery, such as privileges; and, whenever possible, impose only partial limitations rather than denying discovery entirely. (Greyhound Corp. v. Superior Court (1961) 56 C.2d 355, 383-385; see also Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, 1386.)

The party to whom a request for production of documents has been directed can make one of three responses: (1) a statement that the party will comply with the particular demand, (2) a representation that the party lacks the ability to comply, or (3) an objection. (Cal. Code Civ. Pro. §2031.210(a).) A party may move for an order compelling a further response to a document demand on the ground that (1) an objection is without merit or too general, (2) a statement of compliance with the demand is incomplete, or (3) a representation of inability to comply is inadequate, incomplete, or evasive. Cal. Code Civ. Pro. §2031.210(a). A party seeking to compel is required to “set forth specific facts showing good cause justifying the discovery sought by the demand.” Cal. Code Civ. Pro. §2031.210(b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98. This burden may be satisfied by a fact-specific showing of relevance. TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448. Information is relevant to the subject matter of the action if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.

Here, in their written responses, Defendants represented they would produce documents after entry of a protective order. Defendants did produce documents after the Court entered a protective order but did so with numerous redactions. Defendants claim these redactions only relate to numerical values which are irrelevant to Plaintiffs’ claims and that the redactions were necessary to protect their agents’ and a third party buyer’s constitutional right to privacy.

The Court has reviewed the redacted documents attached to the February 27, 2023 Declaration of John Van Loben Sels (“Van Loben Sels Decl.”). First, those documents are marked confidential, presumably pursuant to the protective order the Court (Hon. Christopher Rudy) entered on December 5, 2022. Whether or not the Court or Plaintiffs agree that the documents are, in fact, confidential, the protective order required that Plaintiffs submit the documents to the Court conditionally under seal, which Plaintiffs did not do. For protective orders to work, they must be followed. The Court thus strikes the documents attached to the Van Loben Sels Declaration and orders Plaintiffs to resubmit those documents pursuant to the protective order requirements. The Court further cautions Plaintiffs to follow these confidentiality rules assiduously in the future or risk sanctions.

Next, the redacted material should be produced. As noted above, the relevance standard is to be applied liberally at the discovery stage, and under that liberal standard, the redacted material is directly related to the issues raised in this case. In addition, the protective order can permit the specific financial information, if any, to be revealed only to outside counsel who must comply with the terms of the protective order or risk sanctions.

The Court declines to award sanctions to either party on this motion. The desire to protect financial data and the desire to obtain that data was substantially justified.

Accordingly, Plaintiffs’ motion to compel is GRANTED. Plaintiffs’ motion for sanctions is DENIED.

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Case Name: The Law Firm of Kallis & Associates, P.C. vs. Joseph P. Padgett

Case No.: 16CV298149

Before the Court is Joseph P. Padgett’s Motion for $28,762.50 in Attorney Fees. Pursuant to California Rule of Court 3.1308, the Court issues its tentative ruling.

I. Background

Plaintiffs Kallis & Associates P.C. and Bustamante & Gagliasso, APC (“Law Firms”) represented Defendant Joseph P. Padgett in federal civil rights litigation. Law Firms prevailed on only one of several claims and obtained a judgment of $1. The Parties’ fee agreement for the federal action included the following provision: “In any legal action or proceeding other than the fee arbitration, mentioned above, the prevailing party shall be awarded reasonable attorneys’ fees and costs, incurred in such a proceeding.” (Declaration of Hugo Torbet in Support of Motion for Award of Attorney Fees (“Torbet Decl. 1”), Ex. A.) Law Firms sought and were awarded attorney fees by the district court.

While the federal action was on appeal, Law Firms filed this case seeking payment for services rendered, the amount of which they claimed was in excess of the district court’s award. Padgett then voided the Parties’ fee agreement in writing on the grounds that the agreement violated Business and Professions Code section 6147. This Court (Hon. James Stoelker (Ret.)) granted summary judgment in favor of Padgett, which judgment the court of appeal has now affirmed.

Padgett sought $110,656.94 in attorney fees for his defense of the lawsuit. Judge Stoelker stayed that motion pending the outcome of the Law Firms’ appeal. (October 15, 2018 Order.) The appeal has now resolved in Padgett’s favor, and he thus renews his request for $110,656.94 in attorney fees for defense of the lawsuit and seeks an additional $28,762.50 in fees for his successful defense of the appeal. Both requests are based on the above-cited fee agreement language and are opposed by the Law Firms.

II. Legal Standard and Analysis

The principal ground upon which Law Firms base their opposition is Padgett’s voiding of the fee agreement. This court ruled in its summary judgment order: “The undisputed evidence demonstrates that Defendant elected to void the Fee Agreement on January 24 2017, and Plaintiffs admitted that the Fee Agreement is void and unenforceable. . . This evidence sufficiently establishes that the Fee Agreement is now void as well as any lien that the Fee Agreement purposed to create.” (June 6, 2018 Order Granting Motion for Summary Judgment, p. 11.) The Appellate Court adopted this analysis in its affirmance.

WHILE LAW FIRMS ARE CORRECT THAT “A VOID CONTRACT IS NO CONTRACT AT ALL; IT BINDS NO ONE AND IS A MERE NULLITY. CONSEQUENTLY, SUCH A CONTRACT CANNOT BE ENFORCED.” (FERGUS V. SONGER (2007) 150 CAL.APP.4TH 522, 573.) THEY ARE INCORRECT THAT THIS CONCLUSION APPLIES TO ATTORNEY FEE PROVISIONS.

CIVIL CODE SECTION 1717 PROVIDES:

IN ANY ACTION ON A CONTRACT, WHERE THE CONTRACT SPECIFICALLY PROVIDES THAT ATTORNEY’S FEES AND COSTS, WHICH ARE INCURRED TO ENFORCE THAT CONTRACT, SHALL BE AWARDED EITHER TO ONE OF THE PARTIES OR TO THE PREVAILING PARTY, THEN THE PARTY WHO IS DETERMINED TO BE THE PARTY PREVAILING ON THE CONTRACT, WHETHER HE OR SHE IS THE PARTY SPECIFIED IN THE CONTRACT OR NOT, SHALL BE ENTITLED TO REASONABLE ATTORNEY’S FEES IN ADDITION TO OTHER COSTS.

AND IMPORTANTLY, “[I]T IS NOW SETTLED THAT A PARTY IS ENTITLED TO ATTORNEY FEES UNDER SECTION 1717 ‘EVEN WHEN THE PARTY PREVAILS ON GROUNDS THE CONTRACT IS INAPPLICABLE, INVALID, UNENFORCEABLE OR NONEXISTENT, IF THE OTHER PARTY WOULD HAVE BEEN ENTITLED TO ATTORNEY'S FEES HAD IT PREVAILED.” (BOVARD V. AMERICAN HORSE ENTERPRISES, INC. (1988) 201 CAL.APP.3D 832, 842 [247 CAL.RPTR. 340]; ACCORD, ANMACO, INC. V. BOHLKEN (1993) 13 CAL.APP.4TH 891, 902 [16 CAL.RPTR.2D 675]; WALSH V. NEW WEST FEDERAL SAVINGS & LOAN ASSN. (1991) 234 CAL.APP.3D 1539, 1547 [1 CAL.RPTR.2D 35]; RAINER NATIONAL BANK V. BODILY (1991) 232 CAL.APP.3D 83, 86 [282 CAL.RPTR. 926]; ON V. COW HOLLOW PROPERTIES (1990) 222 CAL.APP.3D 1568, 1574 [272 CAL.RPTR. 535]; ALHAMBRA REDEVELOPMENT AGENCY V. TRANSAMERICA FINANCIAL SERVICES (1989) 212 CAL.APP.3D 1370, 1380 [261 CAL.RPTR. 248]; NORTH ASSOCIATES V. BELL (1986) 184 CAL.APP.3D 860, 865 [229 CAL.RPTR. 305]; DIAMOND V. JOHN MARTIN CO. (9TH CIR. 1985)   753 F.2D 1465, 1467.)” (HSU V. ABBARA (1995) 9 CAL. 4TH 863, 870.)

HERE, THE PARTIES’ FEE PROVISION IS BROADLY DRAFTED SUCH THAT THE PREVAILING PARTY IN ANY LEGAL ACTION SHALL BE AWARDED REASONABLE ATTORNEY FEES AND COSTS. (TORBET DECL. 1, EX. A (“IN ANY LEGAL ACTION OR PROCEEDING OTHER THAN THE FEE ARBITRATION, MENTIONED ABOVE, THE PREVAILING PARTY SHALL BE AWARDED REASONABLE ATTORNEYS’ FEES AND COSTS, INCURRED IN SUCH A PROCEEDING.”) PLAINLY, IF LAW FIRMS HAD PREVAILED IN THIS ACTION AND THE COURT HAD FOUND THE FEE AGREEMENT ENFORCEABLE THEY WOULD HAVE BEEN ENTITLED TO FEES UNDER THIS PROVISION. THUS, IT EASILY FOLLOWS THAT PADGETT IS ENTITLED TO HIS FEES. THIS ANALYSIS APPLIES NOT ONLY TO HIS DEFENSE OF THE COMPLAINT BUT ALSO TO HIS DEFENSE OF THE APPEAL, BOTH BASED ON THE BROADLY DRAFTED FEE PROVISION AND RELEVANT CASE LAW. (SEE SECURITY PACIFIC NATIONAL BANK V. ADAMO (1983) 142 CAL. APP. 3D 492.)

THE FEES SOUGHT ARE ALSO REASONABLE. TORBET’S $325 PER HOUR BILLING RATE AND 429 HOURS FOR WORK ON RESPONDING TO THE COMPLAINT, DISCOVERY, SUMMARY JUDGMENT AND OTHER ACTIVITIES FOR THE UNDERLYING ACTION IS ON THE LOW END FOR BOTH THE BILLING RATE AND THE NUMBER OF HOURS SPENT ON AN ENTIRE CASE OF THIS NATURE (I.E., THE AMOUNT OF MOTION PRACTICE AND LEGAL ISSUES TO ADDRESS); AND TORBET FURTHER REDUCED THOSE HOURS TO ELIMINATE CERTAIN CHARGES THAT MAY BE VIEWED AS DUPLICATIVE SUCH THAT THE TOTAL AMOUNT OF FEES SOUGHT IS $110,656.94. (SEE, GENERALLY, TORBET DECL. 1.) TORBET’S $375 PER HOUR BILLING RATE AND $26,812.50 HOURS FOR WORK ON THE APPEAL ALSO REPRESENT A LOWER END FOR A BAY AREA BILLING RATE AND TIME SPENT ON AN APPEAL.

ACCORDINGLY, PADGETT’S MOTIONS FOR ATTORNEY FEES IS GRANTED. PADGETT IS AWARDED A TOTAL OF 137,496.44 IN ATTORNEY FEES.

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Calendar Line 11

Case Name: Joseph Perez vs Fidelity National Title et al

Case No.: 20CV372500

Before the Court is Cross-Defendant Joseph R. Perez’s Motion to Set Aside Default. Pursuant to California Rule of Court 3.1308, the Court issues its tentative ruling.

I. Background

On October 21, 2020, Plaintiff/Cross-Defendant Joseph Perez brought this lawsuit against Defendant/Cross-Complainant Nora Duarte and several other individuals and entities asserting various claims arising out of a 2019 real estate transaction. On June 16, 2021, Duarte filed a cross-claim against Perez seeking damages of $15,000, purportedly arising out of the same real estate transaction.

At the time Duarte filed her cross-complaint, Perez was represented by attorney Timothy A. Pupach. Perez is now represented by different counsel. Mr. Pupach swears that, despite the proof of service indicating service of the cross-complaint by mail, Mr. Pupach never received the cross-complaint and knew nothing about it until in or about August 2021 when he received Duarte’s request for entry of default. Mr. Pupach conducted an investigation with his office, and confirmed that no one had any record of having received the cross-complaint. Accordingly, no timely response was filed.

Duarte’s request for entry of default was initially rejected. At this time, Duarte was self-represented. After Duarte retained counsel, on June 27, 2022, Duarte filed a motion for entry of default against Perez. Perez opposed the motion. However, the Court (Hon. Christopher Rudy) granted the motion, stating “Cross-complainants request for entry of default was in correct form and default should have been entered as requested. Default is ordered against Mr. Perez on Ms. Duarte’s cross-complaint, and Mr. Perez’s answer to the cross-complaint is stricken without prejudice for Mr. Perez to seek relief from default if appropriate.” (September 21, 2022 Order Granting Motion for Entry of Default, p. 2 (emphasis added).)

II. Legal Standard and Analysis

Code of Civil Procedure section 473(b) provides: “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.”

The Court finds it appropriate to set aside the default under this provision. Duarte argues relief is not appropriate because Mr. Pupach did not submit a declaration; but Mr. Pupach did submit a declaration stating that he never received the cross-complaint. Whether Mr. Pupach had no notice of the cross-complaint because it was not mailed or because somehow his office did not properly process the cross-complaint, his declaration makes clear there was not timely response because of “mistake, inadvertence, surprise or neglect.”

Duarte further argues that Perez’s motion is untimely. However, she makes clear that Perez’s motion was brought five months after the Court served its order granting the motion for entry of default. That is timely under the statute, which permits motions within six months after entry of default. As neither party believed default had been entered before receiving that final order (in fact, Perez filed an answer to the cross-complaint which was subsequently stricken as part of the Court’s September 21, 2022 Order), the appropriate time from which to count the six months is service of the Court’s September 21, 2022 Order.

Accordingly, Perez’ motion to set aside default is GRANTED. The default is set aside, and Perez shall have 20 days from service of the final order to file a response to the cross-complaint.

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Calendar Line 16

Case Name: Octavio Mendoza vs Irma Cruz et al

Case No.: 22CV405323

Before the Court is Plaintiff Octavio Lopez Mendoza’s Motion to Compel Further Responses to Form Interrogatories. Pursuant to California Rule of Court 3.1308, the Court issues its tentative ruling.

I. Background

This action arises out of a landlord tenant dispute. Plaintiff alleges his former landlord, Irma Cruz and Luis Mendoza (Mr. Mendoza is pending default), locked him out of the premises, placed his belongings outside, and took some of his personal property, including an audio recording containing information Plaintiff claims is necessary for another lawsuit.

By this motion, Plaintiff seeks an order compelling Defendant to further respond to two form interrogatories:

12.1 State the name ADDRESS, and telephone number of each individual:

(a) who witnessed the INCIDENT or the events occurring immediately before the INCIDENT;

(b) who made any statement at the scene of the INCIDENT;

(c) who heard any statements made about the INCIDENT by any individual at the scene; and

(d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034).

15.1 Identify each denial of a material allegation and each special or affirmative defense in your pleadings and for each:

(a) state all facts upon which you base the denial or special or affirmative defense;

(b) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and

(c) identify all DOCUMENTS and other tangible things that support your denial or special or affirmative defense, and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.

For both Interrogatories, Defendant objected on the grounds “that it is vague, ambiguous, and overbroad and as such is not likely to lead to the discovery of information relevant to the subject matter of this action or to the discovery of admissible evidence.” For Form Interrogatory No. 12.1, Defendant identified Irma Cruz, Octavio Lopez Mendoza and Law Offices of Kenneth H. Carlson. For Form Interrogatory No. 15.1, Defendant did not provide a substantive response in addition to her objections but “reserves the right to amend or supplement these responses if and when additional information becomes available.”

Plaintiff sent Defendant a meet and confer letter outlining his problems with these responses and asking for a phone number where the parties could meet and confer further. Defendant responded in writing after looking for someone to help her translate the letter from English to Spanish. Defendant contends there is a protective order in place that prohibits communications between the Parties other than by U.S. mail. Defendant offers a declaration in support of her opposition in which she outlines the background of her response to Interrogatory No. 12.1 and offers to supplement her response to Interrogatory No. 15.1 once she engages an attorney to assist her.

II. Legal Standard

Discovery is generally permitted “regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Cal. Code Civ. Pro. § 2017.010.) Everything that is relevant to the subject matter is presumed to be discoverable. (Id.) The Discovery Act further declares that “the court shall limit the scope of discovery” if it determines that the burden, expense, or intrusiveness of that discovery “clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Cal. Code Civ. Pro. § 2017.020(a); Greyhound Corp. v. Superior Court (1961) 56 C.2d 355, 383-385.) The California Supreme Court teaches in Greyhound that the judge exercising discretion to limit discovery should construe disputed facts liberally in favor of discovery; reject objections such as hearsay that only apply at trial; permit fishing expeditions (within limits), avoid extending limitations on discovery, such as privileges; and, whenever possible, impose only partial limitations rather than denying discovery entirely. (Greyhound Corp. v. Superior Court (1961) 56 C.2d 355, 383-385; see also Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, 1386.)

Code of Civil Procedure section 2023.020 states: “the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as result of that conduct.” (See also Moore v. Mercer (2016) 4 Cal.App.5th 424, 448 (failure to participate in meet and confer process in good faith is independent discovery abuse for which sanctions are authorized by statute); Ellis v. Toshiba Am. Info. Sys., Inc. (2013) 218 Cal.App.4th 843, 879-880 (substantial monetary sanction appropriate for failure to cooperate in setting protocol for expert inspection as ordered).) This monetary sanction is mandatory regardless of how the court rules on the offending party’s motion. (Cal. Code Civ. Proc. §2023.020.)

III. Analysis

First, the Court finds that there was inadequate meet and confer on this motion. Sending a single letter requesting meet and confer and not reviewing and responding to Defendant’s response does not constitute the type of robust meet and confer contemplated by the Code.

Next, the does find that there is more information Defendant could have provided to Plaintiff in her responses, as she provides such information in her letter to Plaintiff and in her Opposition to the Court. While the Court is sympathetic that both parties in this case are self-represented, self-represented litigants are to be treated the same as represented litigants. (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444.) Self-represented litigants “are held to the same standards as attorneys” and must comply with the rules of civil procedure. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 543; see also Rappleya v. Campbell (1994) 8 Cal.4th 975, 984-85.) Thus, Defendant cannot use as an excuse for not responding to discovery the fact that she does not have counsel to represent her in this case.

Accordingly, Plaintiff’s motion to compel is GRANTED. Defendant is ordered to supplement her responses to Form Interrogatory Nos. 12.1 and 15.1 within 20 days of service of this final order. Plaintiff’s motion for sanctions is DENIED. The Court finds Plaintiff failed to adequately meet and confer before bringing this motion, which meet and confer may have made the motion unnecessary.

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