AFFIDAVIT - SAVOY AFFIDAVIT OF SERVICE SEC. OF STATE ON LOFTS AT GLOBE MILL GP, LLC October 16, 2023 (2024)

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Aug 21, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |EFCA2024-002340

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Ruling

Janet Mlynar vs California Earthquake Authority, et al

Aug 20, 2024 |19CV03844

19CV03844MLYNAR v. CALIFORNIA EARTHQUAKE AUTHORITY et al PLAINTIFF’S MOTION FOR PROTECTIVE ORDER Plaintiff’s motion for a protective order is denied. “Where a party must resort to thecourts, ‘the burden is on the party seeking the protective order to show good cause for whateverorder is sought.’ [Citation.]” (Nativi v. Deutsche Bank National Trust Co. (2016) 223Cal.App.4th 261, 318.) Plaintiff has not demonstrated good cause for a protective order to haltthe deposition of David Bonowitz. I. BACKGROUND AND MOTION This case stems from the 2014 Napa earthquake. Plaintiff Janet Mlynar’s (“Mlynar”)home was insured for earthquake damage by CEA and CSAA. CEA issued a homeowner’spolicy to Mlynar thought its participating insurer, CSAA. After the earthquake, Mlynarsubmitted an earthquake claim under the CEA policy. Defendant Ronald Cook is an attorneyretained by CSAA to assist regarding the earthquake claim. The claim, for a variety of contestedreasons, was not resolved right away but instead there were numerous inspections regarding thescope and extent of the alleged damage to the home. Checks were issued to Mlynar but nevernegotiated by her, and again, the reasons why are in dispute. The claim also went through anappraisal process. In March 2023, defendant CEA subpoenaed certain documents of Mr. Bonowitz, astructural engineer who was previously hired by Mlynar in 2016; a copy of the subpoena wasserved on plaintiff’s counsel. Mr. Bonowitz produced the documents requested. Mlynar did notobject. (Dec. of Amato ¶ 3.) CEA then noticed his deposition, serving the notice on April 24,2024. Mlynar did not object. (Dec. of Amato at ¶ 5, Ex. 4.) The deposition began on May 10,2024, and lasted about an hour before Mr. Dobrin, Mlynar’s counsel, halted the deposition,stating Mlynar’s former counsel, Mr. Greenburg, may have intended Mr. Bonowitz to beconsidered a retained expert and that his [Mr. Bonowitz’s] prior work on the case was part ofconfidential settlement negotiations. He indicated his intention to move for a protective order.Mlynar filed this motion on July 18, 2024. Mlynar moves for a protective order pursuant to Code of Civil Procedure section2025.420, subd. (a)-(b), seeking an order that the deposition of Mr. Bonowitz, not take placeunless Mlynar discloses him as an expert witness for trial. Mlynar asserts a protective order is Page 1 of 6necessary to protect her from “unwarranted annoyance”, “oppression”, or “undue burden”. Shecontends Mr. Bonowitz was her expert consultant for the sole purpose of confidential settlementcommunications with CEA and CSAA. According to Mlynar, during the claim’s adjustmentprocess, the parties’ experts attempted to agree upon a “repair protocol” so that she could receiveCEA funds to start repairs on her home. The parties could not reach an agreement and proceededthrough the JAMS appraisal process. Mr. Dobrin attaches the following in support of Mlynar’s motion, along with requests forjudicial notice: • Exhibit A is an 11/22/16 email from Mr. Greenburg to defendant Cook which states “Confidential Settlement Communication” and enclosed Mr. Bonowitz’s schematic for removal of plaster walls at the property. • Exhibit B is a recent email chain concerning the deposition of Mr. Bonowitz. • Exhibit C is an email dated 9/26/17, with the subject line “Confidential Settlement Communication.” • Exhibit D are two emails dated 10/4/17 between defendant Cook and Greenburg with the subject line “Confidential Settlement Communication.” • Exhibit E is an email dated 8/8/18 from Mr. Greenburg to CSAA adjustor Vicki Miller with the subject line “Confidential Settlement Communication”, attaching Mlynar’s contractor/architect’s [Avelar] repair estimate and scope of work. • Exhibit F is a partial copy of the subpoena served on Mr. Bonowitz in 2023 by CEA. • Exhibit G is a letter dated 8/7/18 from Mr. Greenburg to CSAA. II. OPPOSITION BY CEA The opposition sets out four arguments: (1) Mr. Bonowitz was Mlynar’s engineeringconsultant during the presentation of the earthquake claim – not during the lawsuit and he wasnot retained in anticipation of the appraisal proceeding; (2) Mr. Bonowitz’s testimony is notrelated to a settlement offer or demand. He is expected to confirm his 2018 writing in which headvised Mlynar there was no structural damage to her property due to the earthquake; (3) theresults of Mr. Bonowitz’s destructive testing of the framing beneath the plaster walls at Mlynar’sproperty was intended to be shared with CSAA, which was adjusting the claim; and (4) to theextent there was an attorney-work product protection of Mr. Bonowitz’s testimony, Mlynarwaived such protections when her attorneys did not object to the production of his entire file inresponse to a subpoena. III. DISCUSSION Page 2 of 6 Code of Civil Procedure section 2025.420, subdivision (a) states, “[b]efore, during, orafter a deposition, any party, any deponent, or any other affected natural person or organizationmay promptly move for a protective order. The motion shall be accompanied by a meet andconfer declaration under Section 2016.040.” Subdivision (b) states, in part, “[t]he court, for goodcause shown, may make any order that justice requires to protect any party, deponent, or othernatural person or organization from unwarranted annoyance, embarrassment, or oppression, orundue burden and expense.” California Evidence Code section 1152, Admissibility of Evidence subdivision (a) states,in part, that “[e]vidence that a person has, in compromise or from humanitarian motives,furnished or offered or promised to furnish money or any other thing, act, or service to anotherwho has sustained or will sustain or claims that he or she has sustained or will sustain loss ordamage, as well as any conduct or statements made in negotiation thereof, is inadmissible toprove his or her liability for the loss or damage or any part of it.” First, the emails referenced by Mlynar, though titled “Confidential SettlementCommunications” do not appear to include any specific offers to settle her claim. Second, CEApoints out that this section of the Evidence Code pertains to the admissibility of evidence, anddoes not reference limiting the scope of a deposition. Mlynar has not provided a basis for herassertion that Evidence Code section 1152 insulates the deposition testimony of a third-partywitness. Further, even assuming any protections existed for Mr. Bonowitz’s work and testimony,there have been multiple instances of waiver. “[T]he attorney work product privilege is subject tothe same waiver principles applied to the attorney-client privilege. ‘Waiver of work productprotection, though not expressly defined by statute, is generally found under the same set ofcirc*mstances as waiver of the attorney-client privilege—by failing to assert the protection, bytendering certain issues, and by conduct inconsistent with claiming the protection. Waiveralso occurs by an attorney's voluntary disclosure or consent to disclosure of the writing to aperson other than the client who has no interest in maintaining the confidentiality of the contentsof the writing.’[Citations.] Thus disclosure to a third party will waive the work product privilegeunless the disclosure was coerced.” (Regents of University of California v. Superior Court (2008)165 Cal. App. 4th 672, 678-679.) (Emphasis added.) In March 2023, CEA subpoenaed Mr. Bonowitz’s files related to his work at Mlynar’sproperty and a copy of the subpoena was served on her counsel. Mr. Bonowitz produced thedocuments requested. Mlynar did not object. (Dec. of Amato ¶ 3.) His deposition was noticed forApril 24, 2024, with all counsel, including Mlynar’s attorney, copied and again, Mlynar did notobject. (Dec. of Amato at ¶ 5, Ex. 4.) Finally, Mr. Bonowitz’s site visit notes were already Page 3 of 6disseminated as exhibits to a deposition of plaintiff’s contractor and as an exhibit to CEA’smotion for summary judgment. The motion is denied. The court declines to award sanctions. PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE FILED 7/18/24 1. Order on Motion for Summary Judgment in this case. Denied. The court need not take judicial notice of records in its own case file. 2. Declaration of Janet Mlynar in support of her Responses to Separate Statement of Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. 3. Declaration of Jon-Marc Dobrin in Support of Plaintiff’s Responses to Separate Statement of Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. 4. Plaintiff Janet Mlynar’s Response to Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. PLAINTIFF JANET MLYNAR’S ADDENDUM TO REQUEST FOR JUDICIAL NOTICE FILED 7/30/24 Ex. UU Redacted emails and report of defendants’ appraiser, Thad Eaton. Denied. PLAINTIFF JANET MLYNAR’S SECOND ADDENDUM REQUEST FOR JUDICIAL NOTICE FILED 8/9/24 Ex. A copies of CSAA’s claim file produced in this action regarding CSAA’s redacted communications with its contractors Shaun Piazza and its engineer Peter Shandlin and the “Confidential Settlement Communication” from Mlynar’s attorney Greenburg with CSAA adjustor Vikki Miller. Denied.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if the Page 4 of 6prevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.

Ruling

Knox vs. Mohamud, et al.

Aug 21, 2024 |23CV-0202275

KNOX VS. MOHAMUD, ET AL.Case Number: 23CV-0202275Tentative Ruling on Order to Show Cause Re: Sanctions: An Order to Show Cause Re: Sanctions issued toPlaintiff Jamaal Knox and Counsel Beverly Law Firm for failing to appear at the trial setting conference on June17, 2024. The June 17, 2024 hearing date was set by the April 29, 2024 tentative ruling which became the finalorder of the Court. Counsel was present when the April 29, 2024 hearing was calendared. Despite being timelynoticed of the Order to Show Cause Re: Sanctions, Plaintiff did not file a written response. Ther Court thereforeissues sanctions as against Plaintiff Jamaal Knox and Counsel Beverly Law Firm, in the amount of $250.00. Thismorning’s Review Hearing at 9:00 a.m. is confirmed.****************************************************************************************** 9:00 a.m. – Review Hearings******************************************************************************************

Ruling

KASSANDRA GOMEZ ET AL VS. GARY F. GROSSMAN ET AL

Aug 21, 2024 |CGC23608087

Matter on the Discovery Calendar for Wednesday, Aug-21-2024, Line 4, CATHERINE DELCIN'S Motion Of Attorney For An Order To Vacate And Set Aside Order Under Cal. Civ. Proc. 473. [PART ONE OF TWO] Pro Tem Judge Matthew Kahn, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by email. If not all parties to the motion sign the stipulation, the Pro Tem Judge will hold a hearing on the motion and, based on the papers submitted by the parties and the hearing, issue a report in the nature of a recommendation to the Dept. 302 Judge, who will then decide the motion. If a party does not appear at the hearing, the party will be deemed to have stipulated that the motion will be decided by the Pro Tem Judge with the same authority as a Superior Court Judge. The Pro Tem Judge has issued the following tentative ruling: The motion is GRANTED. Based on the materials submitted with the motion, it does not appear that, at the time Pro Tem Deol granted Cross-Complainants' motion for sanctions on June 20, 2024, Pro Tem Deol had been apprised by counsel for Cross-Complainants that Ms. Declin's motion to be relieved as counsel of record for Embattle Protective Services ("Embattle") had been granted on May 15, 2024. It likewise appears, based on the materials submitted with the motion, that Ms. Declin did not have notice of Pro Tem Deol's tentative ruling granting said motion nor the opportunity to be heard to contest it. The notice of motion did state that sanctions would be sought against Ms. Declin in her capacity as Embattle's counsel, but by the time the motion came on for hearing Ms. Declin had not been Embattle's counsel for over a month and so reasonably would not have expected the motion to continue to seek relief as to her personally. While Cross-Complainants contend that Ms. Declin was only relieved as counsel for Embattle in its capacity as a "Defendant," but not in its capacity as a "Cross-Defendant," the materials submitted with the motion do not support that interpretation. Further, it appears that, before her motion to be relieved as counsel of record for Embattle was granted, Ms. Declin acted appropriately to protect her client's interests by serving objections-only discovery responses in a period when her client would not respond to her in order to avoid her client waiving its right to object. Accordingly, good cause exists to vacate and set aside Pro Tem Deol's June 20, 2024 sanctions order under Code of Civil Procedure section 473, subdivision b. [END OF PART ONE OF TWO] =(525/JPT)

Ruling

Animal Legal Defense Fund vs Foster Poultry Farms

Aug 21, 2024 |20CV-02493

20CV-02493 Animal Legal Defense Fund v. Foster Poultry FarmsThe Motion to Compel Real Party In Interest City of Livingston to Provide Further DiscoveryResponses to Plaintiff’s Request for Admission, Set One and Request for Monetary Sanctions inthe Amount of $1,405.05, filed June 21, 2024.The Joint Statement Filed by the Parties on August 14, 2024, advises the Court that allmatters relating to this motion have been resolved except the issue of sanctions. TheCourt compliments the parties on resolving the discovery issues and GRANTS theRequest for sanctions in the amount of $1,405.05 on the grounds that the bulk of theissues raised in Opposition by Real Party in Interest, the City of Livingston were litigatedwithout substantial justification. Sanctions will be paid by September 30, 2024.Plaintiff's Motion to Compel Real Party in Interest The City of Livingston to Provide FurtherResponses to Interrogatories Set One, and Request for Monetary Sanctions in the Amount of$2,374.91 filed June 21, 2024The Joint Statement Filed by the Parties on August 14, 2024, advises the Court that allmatters relating to this motion have been resolved except the issue of sanctions. TheCourt compliments the parties on resolving the discovery issues and GRANTS theRequest for sanctions in the amount of $2,374.91 on the grounds that the bulk of theissues raised in Opposition by Real Party in Interest, the City of Livingston were litigatedwithout substantial justification. Sanctions will be paid by September 30, 2024.Plaintiff’s Motion to Compel Real Party in Interest The City of Livingston to Provide FurtherDiscovery Responses to Plaintiff’s Second Request for Production of Documents and Requestfor Monetary Sanctions of $4,902 filed June 21, 2024The Joint Statement Filed by the Parties on August 14, 2024, advises the Court that allmatters relating to this motion have been resolved except the issue of sanctions. TheCourt compliments the parties on resolving the discovery issues and GRANTS theRequest for sanctions in the amount of $4,902.00 on the grounds that the bulk of theissues raised in Opposition by Real Party in Interest, the City of Livingston were litigatedwithout substantial justification. Sanctions will be paid by September 30, 2024.Defendant’s Motion to Seal Exhibits Filed with Plaintiff’s Motion for Summary JudgmentThe Motion to Seal Exhibits filed with Plaintiff’s Motion for Summary Judgment isGRANTED without prejudice to the right to unseal once the lawfulness of Defendant’sprocesses have been resolved. The Court conditioned Plaintiff’s authorization toconduct discovery of private information by issuing an appropriate protective orderwhich is effectively defeated by attaching that discovery to documents available to thepublic. The purpose of the order limiting disclosure to the sensitive information toPlaintiff was for the sole purpose of permitting a fair adjudication of Plaintiff’s claims, notas a device for disclosing non-public information to the general public. Accordingly, theMotion to Seal Exhibit attached to Plaintiff’s Motion for Summary Adjudication isGRANTED without prejudice to the right to unseal certain documents once thelawfulness of Plaintiff’s processes have determined. SUPERIOR COURT OF CALIFORNIA COUNTY OF MERCED Mandatory Settlement Conference Hon. Brian L. McCabe Courtroom 8 627 W. 21st Street, Merced Wednesday, August 21, 2024 9:00 a.m. The following tentative rulings shall become the ruling of the court unless a party gives notice of intention to appear as follows: 1. You must call (209) 725-4111 to notify the court of your intent to appear. 2. You must give notice to all other parties before 4:00 p.m. of your intent to appear. Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance provider) of your intent to appear does not satisfy the requirement of notifying the court. IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing transcript must make their own arrangements.Case No. Title / Description

Ruling

FERNEY PINTO SANTANDER VS EMMA REYES, ET AL.

Aug 21, 2024 |23NWCV00250

Case Number: 23NWCV00250 Hearing Date: August 21, 2024 Dept: SEC SANTANDER VS EMMA REYESCASE NO.: 23NWCV00250 HEARING:¿ 8/21/24 @ 10:30 A.M. #5 TENTATIVE ORDER Defendants motion for leave to file cross-complaint is DENIED. Moving party to give notice. This is a habitability action. Defendant moves for leave to file a cross-complaint. Legal Standard A cross-complaint against any of the parties who filed the initial complaint or cross-complaint against the cross-complainant must be filed before or at the same time as the answer to the initial complaint or cross-complaint, which answer must be filed within 30 days of service of the complaint or cross-complaint. (Code Civ. Proc., §§ 412.20(a)(3), 428.50(a), 432.10.) Any other cross-complaint may be filed at any time before the court has set a trial date. (Code Civ. Proc., § 428.50, subd. (b).) Permissive Cross-Complaint If a party fails to file a cross-complaint, whether through oversight, inadvertence, mistake, neglect, or other cause within the time limits described above, must obtain permission from the court to file the cross-complaint. (Code Civ. Proc., §§ 426.50, 428.50, subd. (c).) The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. (Code Civ. Proc., § 426.50.) This subdivision shall be liberally construed to avoid forfeiture of causes of action. (Ibid.) Compulsory Cross-Complaint Cross-claims against complainants arising from the same transaction or series thereof, existing at the time of filing an answer, are compulsory. (Code Civ. Proc., § 426.30, subd. (a); Al Holding Co. v. OBrien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, 1313-14.) Leave to file a cross-complaint must be granted absent bad faith. (Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 99.) A determination that the petitioner acted in bad faith may be premised on substantial injustice or prejudice to the opposing party. (Foot's Transfer & Storage Co. v. Super. Ct. (1980) 114 Cal.App.3d 897, 902.) Discussion Here, Defendant does not state what causes of action she wants to assert in a cross-complaint. Thus, based on Defendants papers, the Court cannot know whether the proposed cross-complaint is permissive or compulsory. Assuming Defendants cross-complaint is permissive, Defendant does not state if not filing the cross-complaint earlier was due to her oversight, inadvertence, mistake, neglect, or another reason. But Defendant asserts that Plaintiff will not suffer prejudice because this case is still in its discovery stage. In opposition, Plaintiff states that Defendant has not filed and served a proposed cross-complaint. The Court does not have enough information about why Defendant wants to file a cross-complaint or what the cross-complaint will assert. Thus, it cannot determine whether Defendant is acting in bad faith. The motion is DENIED.

Ruling

KYUNG SIL KIM, AN INDIVIDUAL VS HYO RANG LEE, M.D., AN INDIVIDUAL

Case Number: 21STCV20011 Hearing Date: August 21, 2024 Dept: 29 Kim v. Lee 21STCV20011 Defendants Motion for Terminating and Evidence Sanctions Tentative The request for terminating sanctions is denied. The request for evidence sanctions is granted in part. Background On May 27, 2021, Kyung Sil Kim (Plaintiff) filed a complaint against Hyo Rang Lee, M.D. (Defendant) and Does 1 to 100 for Medical Malpractice/Professional Negligence arising from a procedure performed on February 25, 2020. On October 3, 2023, Defendant filed his answer. On March 15, 2024, the Court granted Defendants motion for an order deeming Plaintiff to have admitted the truth of the matters specified in Defendants Requests for Admission (Set One). On April 2, 2024, the Court granted Defendants motion to compel Plaintiff to provide initial responses to Defendants Form Interrogatories (Set One), Special Interrogatories (Set One), and Requests for Production (Set One). Plaintiff did not comply with this order. (Rubaum Decl., ¶ 3.) On July 17, 2024, Defendant filed what appear to be two identical motions for evidentiary and terminating sanctions. No opposition has been filed. Legal Standard When a plaintiff fails to obey an order compelling answers to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7. (Code Civ. Proc., § 2030.290, subd. (c).) When a plaintiff fails to obey an order compelling responses to requests for production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7. (Code Civ. Proc., § 2031.300, subd. (c).) In Chapter 7 of the Civil Discovery Act, section 2023.030 provides for monetary, evidence, issue, and terminating sanctions for any misuse of the discovery process, [t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title. A misuse of the discovery process is defined to include (among other things) failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to a discovery request; disobeying a court order to provide discovery; and making or opposing, unsuccessfully, a motion to compel without substantial justification. (Code Civ. Proc., § 2023.010, subds. (d)-(h).) The Civil Discovery Act provides for an escalating and incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) Discovery sanctions should be appropriate to and commensurate with the misconduct, and they should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Ibid.; see also, e.g., Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) Terminating sanctions should be used sparingly. (Doppes, supra, 174 Cal.App.4th at p. 992; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal. App. 4th 486, 496.) Although in extreme cases a court has the authority to order a terminating sanction as a first measure, a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective. (Lopez, supra, 246 Cal.App.4th at p. 604.) But where discovery violations are willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (Doppes, supra, 174 Cal.App.4th at p. 992.) Repeated and willful violations of discovery orders that prejudice the opposing party may warrant a terminating sanction. (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702; Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; Lang v. Hachman (2000) 77 Cal.App.4th 1225, 1246; Collisson X Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622.) The primary purpose of discovery sanctions is to obtain compliance with the Civil Discovery Act and the Courts orders. It is not to punish. (Newland v. Super. Ct. (1995) 40 Cal.App.4th 608, 613; Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.) A discovery sanction should not create a windfall for a party or place a party in a better position than it would have been if the opposing party had simply complied with its obligations under the Courts orders and the Civil Discovery Act. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1194; see also 2 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023), ¶¶ 8:2214-2220.) A terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified. (Newland, supra, 40 Cal.App.4th at p. 615.) Discussion Plaintiff has violated a court order and has failed to comply with the obligations imposed on all parties under the Civil Discovery Act to respond to written discovery. This is substantial discovery abuse. Serious sanctions are warranted for this conduct. The Court also notes that Plaintiff did not oppose the last two discovery motions and did not appear at either hearing. Plaintiff did not oppose this motion, even though Defendants seeks terminating sanctions. Plaintiff has not appeared at a court hearing since October 2023. After more than three years of litigation, there is an open question as to whether Plaintiff has essentially abandoned this matter. For terminating sanctions, however, a party must present evidence of repeated and willful misuse of the discovery process, as well as evidence that less severe sanctions have not (or likely will not) lead to compliance with the discovery rules. Defendant has not, on this record at this time, made such a showing. There has not been a showing of a history or pattern of willful abuse or repeated violations that have not been (or cannot be) cured by lesser sanctions. Moreover, a discovery sanction should not create a windfall for a party or place a party in a better position than it would have been if the opposing party had simply complied with its obligations under the Courts orders and the Civil Discovery Act. (Rutledge, supra, 238 Cal.App.4th at p. 1194.) Here, at this time, a terminating sanction would create such a windfall for Defendant. Accordingly, Defendants requests for terminating sanctions are DENIED. In the alternative, Defendant seeks an order imposing an evidence sanction on Plaintiff. Given Plaintiffs failure to provide even initial responses to basic discovery, such an order is appropriate to protect Defendant from unfair prejudice and proportional to Plaintiffs misconduct. The request is granted in part. The Court orders, as an evidence sanction, that Plaintiff may not use, at or before trial, any document responsive to Defendants Requests for Production (Set One), Nos. 1-49, that Plaintiff has not produced in discovery in this matter prior to August 21, 2024. The denial of Defendants request for terminating sanctions and further evidence sanctions is denied without prejudice; Defendant may renew the request if there is additional misuse of the discovery process by Plaintiff. Conclusion Defendant Hyo Rang Lee, M.D.s motion for sanctions is GRANTED IN PART and DENIED IN PART. The Court DENIES Defendants request for terminating sanctions The Court GRANTS in part Defendants request for evidentiary sanctions. The Court orders, as an evidence sanction, that Plaintiff may not use, at or before trial, any document responsive to Defendants Requests for Production (Set One), Nos. 1-49, that Plaintiff has not produced in discovery in this matter prior to August 21, 2024. Moving Party is ordered to give notice.

Ruling

MARIO RODRIGUEZ VIRGEN, ET AL. VS UBER TECHNOLOGIES, INC., ET AL.

Aug 19, 2024 |23STCV20913

Case Number: 23STCV20913 Hearing Date: August 19, 2024 Dept: 28 Having considered the moving, opposition, and reply papers, the Court rules as follows. BACKGROUND On August 30, 2023, Plaintiffs Mario Rodriguez Virgen (Plaintiff) and Brayan Rodriguez Ramirez filed this action against Defendants Uber Technologies, Inc. (Uber), Rasier, LLC (Rasier), Rasier-CA, LLC (Rasier-CA), Jensen Alan Jimerson (Jimerson), Tatiana Ikonnikova (Ikonnikova), and Does 1-100 for negligence and negligence per se. On November 6, 2023, Uber, Rasier, and Rasier-CA filed an answer. On November 9, 2023, the Court dismissed Ikonnikova without prejudice at Plaintiffs request. On November 15, 2023, Jimerson filed an answer. On January 22, 2024, the Court signed the parties stipulated protective order. On June 13, 2024, Jimerson filed a motion to compel Plaintiff to attend a neuropsychological examination or in the alternative to exclude experts. The motion was set for hearing on July 15, 2024. On July 1, 2024, Plaintiff filed an opposition. On July 8, 2024, Jimerson filed a reply. The Court continued the hearing to August 19, 2024. Trial is currently scheduled for February 26, 2025. PARTIES REQUESTS Jimerson asks the Court to compel Plaintiff to appear for a neuropsychological exam with David M. Lechuga, Ph. D., at 13 Orchard Road, Suite 103, Lake Forest, CA 92630, on a mutually agreeable date or in the alternative to exclude Plaintiffs treating or expert physicians. Plaintiff asks the Court to order that Plaintiff may record the entire examination using audio technology and that Jimerson must provide Plaintiffs counsel the raw data within 30 days of the examination. LEGAL STANDARD Code of Civil Procedure section 2032.310 provides: (a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court. (b) A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action. (Code Civ. Proc., § 2032.310.) Code of Civil Procedure section 2032.320 provides in part: (a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. * * * (d) An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination. (Code Civ. Proc., § 2032.320, subds. (a), (d).) DISCUSSION A. Neuropsychological examination Jimerson noticed a neuropsychological examination of Plaintiff with neuropsychologist David M. Lechuga, Ph. D. Plaintiff agreed to appear for a neuropsychological examination but only on the condition that Jimerson produce the raw data from the examination and an audio recording of the examination to Plaintiffs attorney. Jimerson asks the Court to compel Plaintiff to attend a neuropsychological examination without requiring Jimerson to comply with Plaintiffs requested conditions. It is undisputed that Plaintiff has placed his neuropsychological condition at issue, supporting Jimersons request for leave to conduct a neuropsychological examination. The Court finds good cause and grants Defendants motion for leave to conduct Plaintiffs neuropsychological examination, subject to the following conditions. B. Audio recording Jimerson contends: [A]s part of the diagnosis of a potential patient, confidential tests, developed by others, are utilized by Dr. Lechuga. These tests are protected by copyright and trade secrecy laws, as well as ethical requirements governing the practice of psychology, which prohibits the disclosure of the specific components of the test, including the recording of neuropsychological test administration procedures. These same laws and ethical requirements do not permit neuropsychologists like Dr. Lechuga to turn over raw data from the neuropsychological examination to legal counsel (plaintiff or defense), or to anyone who is not a licensed neuropsychologist. This would include prohibiting Plaintiffs Counsel or representative from recording the actual testing of Plaintiff. (Motion p. 12.) Code of Civil Procedure section 2032.530, subdivision (a), provides that The examiner and examinee shall have the right to record a mental examination by audio technology. (Code Civ. Proc., § 2032.530, subd. (a).) [S]ince section 2032.530, subdivision (a) grants the examinee the right to record a mental examination by audio technology, it implies the examinee may retain a copy of the audio recording. (Randy's Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818, 837 (Randys Trucking).) By its terms, Code of Civil Procedure section 2032.530, subdivision (a), allows Plaintiff to use audio technology to record the examination without imposing any limitations. Jimerson cites no legal authority that would allow the Court to limit Plaintiffs rights under Code of Civil Procedure section 2032.530, subdivision (a). The Court orders that Plaintiff may record all portions of the mental examination by audio technology. (See L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2024) ¶ 8:1595, p.8I-25 [Both the examiner and the examinee have the right to record the entire examination by audio (but not video) technology].) The information contained in the audio recording will be governed by the stipulated protective order entered on January 22, 2024 (or another protective order to be submitted to the Court). C. Raw data In Randy's Trucking, supra, 91 Cal.App.5th 818, the trial court granted the defendants motion to compel the plaintiffs mental examination by a neuropsychologist. (Id. at p. 824.) The court denied the defendants request to transfer the testing information to the plaintiffs expert rather than the plaintiffs counsel. (Id. at p. 832.) Instead, the court ordered the neuropsychologist to provide an audio recording of the examination and all raw data to the plaintiffs counsel within 30 days after the examination subject to a protective order. (Ibid.) The defendants petitioned for a writ of mandate. (Id. at p. 825.) The Court of Appeal denied writ relief. (Randys Trucking, supra, 91 Cal.App.5th at p. 825.) The court observed, [t]here is no statutory authority . . . precluding a trial court from ordering the disclosure of test materials or test data when ordering a mental examination. (Id. at p. 834, citing Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 271.) And given the trial courts broad discretion in discovery matters, the trial court . . . has the power to order disclosure of test materials and data to plaintiffs attorney. (Id. at p. 835.) Therefore, the trial court had discretion to order the production to the plaintiffs counsel of the raw data and audio recording. (Id. at p. 837.) The defendants argued the trial court abused its discretion because the need to protect the neuropsychologist from violating her ethical and professional obligations outweighed the plaintiffs need for the raw data and audio recording. (Randys Trucking, supra, 91 Cal.App.5th at p. 837.) But the neuropsychologist did not explain why her ethical obligations would be violated if a court ordered her to disclose the raw data and audio recording to plaintiffs attorney subject to a protective order. (Id. at pp. 837-838.) The Court of Appeal reasoned that, [w]ithout the raw data and audio recording, [the plaintiffs] cannot effectively scrutinize the way the data was collected, determine if there are discrepancies, and cross-examine the neuropsychologist on the basis and reasons for the neuropsychologists opinion. (Randys Trucking, supra, 91 Cal.App.5th at p. 838.) Moreover, the plaintiffs should not be forced to retain an expert to gain access to these materials and even if they do retain one, that expert can only assist the attorney in preparing for cross-examination; to prepare and conduct an effective cross-examination, the attorney must themselves possess more than a second-hand understanding of the information being scrutinized. (Ibid.) Here, Jimerson has submitted a declaration from Dr. Lechuga, which incorporates a Collective Statement on Importance of Protection of Psychological Testing Materials (Collective Statement). The Collective Statement asserts that [p]rotective orders issued by a judge are insufficient to ensure test security because attorneys are motivated to violate the protective order, disclosure even under a protective order creates opportunities for other non-psychologists to misuse the information, and enforcement of the protective order is impracticable. Plaintiff, on the other hand, asserts that he needs the raw data for the same reasons the Court of Appeal summarized in Randys Trucking: to prepare for an conduct an effective cross-examination of the defendant's expert. (Opposition p. 6, citing Randys Trucking, supra, 91 Cal.App.5th at p. 838.) The Court has weighed Dr. Lechugas concerns (which are based on an assumption that the protective order will be ineffective) against Plaintiffs need to prepare for and effectively conduct Dr. Lechugas cross-examination. The Court concludes that Plaintiff has a legitimate need for the raw data and Dr. Lechugas concerns about maintaining test security can be satisfied with a protective order. The Court exercises its discretion and orders release of the raw data to Plaintiffs attorney subject to the January 22, 2024 protective order (or another protective order to be submitted to the Court). D. Tests Dr. Lechuga may conduct only the following tests: Victoria System Validity Test (VSVT) Test of Memory Malingering (TOMM) Dot Counting Test (OCT) The b Test Green Memory Test (GMT) Validity Indicator Profile (VIP) Structured Inventory of Malingered Symptomatology (SIMS) Mini-Mental Status Examination (MMSE) Wechsler Adult Intelligence Scale - 4 (WAIS-IV) Wide Range Assessment Test - 4 (WRAT4) Wechsler Abbreviated Scale of Intelligence (WASHI) Wechsler Test of Adult Reading (WT AR) Reitan-Klave Sensory-Perceptual Examination Finger Tapping Test (FTT) Grooved Pegboard (GPB) Hand Dynamometer (HD) Multilingual Aphasia Examination (MAE) Boston Naming Test, Second Edition (BNTZ) Expressive Vocabulary Test - 2 (EVTZ) Peabody Picture Vocabulary Test - 4 (PPVT4) Visual Form Discrimination (VFD) Hooper Visual Organization Test (VOT) Rey Complex Figure Test (RCFT) California Verbal Learning Test - II (CVL T-3) Wechsler Memory Scale - IV (WMS-IV) Wide Range Assessment of Memory and Learning - 2 (WRAML-2) Color Trails Test (CTT) Trail Making Test, Part A and Part B (TMT A/B) Delis-Kaplan Executive Function Systems (D-KEFS) Conners Continuous Performance Test - Ill (CPT-3) Wisconsin Card Sorting Test (WCST) Ruff Neurobehavioral Inventory (RNBI) Neurobehavioral Functioning Inventory (NFI) Pain Patient Profile (P3) Minnesota Multiphasic Personality Inventory - 2 (MMPl-2) Minnesota Multiphasic Personality Inventory - 2 RF (MMPl-2RF) Neuropsi Atenci6n y Memoria Neuropsi Evaluaci6n Neuropsicolgica Breve en Espanol (Denominaci6n, Repetici6n, and Comprensi6n subtests) Personality Assessment Inventory (PAI) Trauma Symptom lnventory-2 (TSI) Detailed Assessment of Posttraumatic States (DAPS) Neuropsychological Assessment Battery (NAB) Neuropsychological Impairment Scale (NIS) Posttraumatic Diagnostic Scale (PDS) Posttraumatic Stress Disorder Checklist, 5th Edition (PCL-V) CONCLUSION The Court GRANTS in part Defendant Jensen Alan Jimersons motion for leave to conduct Plaintiff Mario Rodriguez Virgen neuropsychological examination with neuropsychologist David M. Lechuga, Ph. D., at 13 Orchard Road, Suite 103, Lake Forest, CA 92630, on a mutually agreeable date within 30 days of the hearing on this motion. The tests and procedures will be limited to those set forth above. Plaintiff Mario Rodriguez Virgen may record all portions of the neuropsychological examination by audio technology. The information contained in the audio recording will be governed by the stipulated protective order entered on January 22, 2024 (or another protective order to be submitted to the Court). Within 30 days of the examination, Defendant Jensen Alan Jimerson will produce to counsel for Plaintiff Mario Rodriguez Virgen the raw data from the neuropsychological examination, subject to the January 22, 2024 protective order (or another protective order to be submitted to the Court). Moving party is ordered to give notice of this ruling. Moving party is ordered to file the proof of service of this ruling within five days.

Ruling

ANNUNZIATA CRUPI VS BARKHORDARIAN LAW FIRM, A CALIFORNIA CORPORATION

Aug 21, 2024 |23SMCV05527

Case Number: 23SMCV05527 Hearing Date: August 21, 2024 Dept: 205 Superior Court of California County of Los Angeles West District Beverly Hills Courthouse / Department 205 ANNUNZIATA CRUPI, Plaintiff, v. BARKHORDARIAN LAW FIRM, et al., Defendants. Case No.: 23SMCV05527 Hearing Date: August 21, 2024 [TENTATIVE] ORDER RE: PLAINTIFFS MOTIONS TO VACATE JUDGMENT OF APRIL 16, 2024 AND APRIL 26, 2024 AND MOTIONS FOR SANCTIONS BACKGROUND This is a legal malpractice action. Plaintiff Annunziata Crupi hired Defendant Barkhordarian law firm to represent her in an employment dispute with the University of Southern California (USC). (Compl. ¶ 1.) Plaintiff alleged she had been wrongfully terminated by USC and also claimed whistleblower retaliation and discrimination. (Id.) Plaintiff alleges Defendant was negligent in its representation of her in the underlying employment case by acquiescing to arbitration when the arbitration agreement was not enforceable and was repudiated by USC; failing to properly investigate the amount of damages; failing to properly allege all available claims; providing unilateral discovery to USC during settlement negotiations; asking Plaintiff to sign a settlement agreement that would have deprived Plaintiff of rightfully acquired intellectual property, would have damaged Plaintiffs career and reputation and would have subjected her to self-incrimination; requiring Plaintiff to pay its fees when Plaintiff refused to sign the settlement agreement; failing to disclose its attorneys were associated with USC, and failing to request right to sue letters from the EEOC. (Id. ¶¶ 3-19, 40, 45.) The operative complaint alleges four claims for (1) legal malpractice, (2) breach of duty, (3) fee dispute, and (4) breach of contract. Plaintiff seeks financial damage, social status damage, loss of life enjoyment, physical and mental health damage, emotional damage, possible self-incrimination, possible future conviction [and] possible death. (Id. ¶34.) Plaintiff is appearing in pro per. This hearing is on Plaintiffs motions to vacate two orders, one dated April 16, 2024 setting the trial date for February 2, 2026, and the other dated April 26, 2024, sustaining in part and overruling in part Defendants demurrer. Plaintiff argues that as to the April 16, 2024 order, the Court improperly set trial two and a half years after the date the Complaint was filed. As to the April 26, 2024 order, Plaintiff argues the Court did not have authority to rule on the demurrer because it was not served on Plaintiff. This hearing is also on Plaintiffs motions for sanctions. Plaintiff contends Defendant failed to serve her with Defendants demurrer and motion to strike, resulting in Plaintiff having to expend time filing a request for continuance of the hearing on the demurrer and this motion for sanctions. Plaintiff seeks fees for time expended, service costs and emotional distress damages, totaling $5,000. DISCUSSION Plaintiffs motion to vacate the order setting the trial date is without merit. Plaintiff argues that the Court set the trial too far out, creating hardship because Plaintiff is impoverished. In setting the trial date, the Court properly considered the factors enumerated in Cal. Rules of Court Rule 3.729 as well as both parties case management statements, which in Plaintiffs case, does not even state any preference for a trial date. Plaintiffs motion to vacate the order sustaining in part and overruling in part Defendants demurrer is similarly without merit. The motion to vacate is a disguised motion for reconsideration, and as such, was required to be filed within 10 days of the notice of entry of the April 24, 2024 order. (Code Civ. Proc., §¿1008, subd. (a).) The April 24, 2024 order was served on Plaintiff by mail on April 24, 2024, which extends the 10 days by five calendar days. (Code Civ. Proc., §¿1013, subd. (a); Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2012) [¶] 9:326.1).) So Plaintiff was required to file her motion for reconsideration by May 9, 2024. She filed her motion on May 23, 2024. Accordingly, it is untimely. Plaintiffs motions for sanctions are equally without merit. On April 19, 2024, Plaintiff filed three motions for sanctions, all seeking the same relief on the same grounds. The Court denied one of the motions on May 14, 2024. The Court denies the two other motions as duplicative of the other motion for sanctions on which the Court has already ruled. CONCLUSION Based on the foregoing, the Court DENIES Plaintiffs motions to vacate judgment entered April 16, 2024 and April 24, 2024 and DENIES Plaintiffs motions for sanctions. IT IS SO ORDERED. DATED: August 21, 2024 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court

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