AGUILEO GUTIERREZ VS RAYMOND C. PERRY

Tentative Rulings

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Case Number: 18STLC13458 Hearing Date: August 2, 2021 Dept: 26

Gutierrez v. Perry, et\r\nal. 18STLC13458

MOTION FOR RELIEF FROM ADMISSIONS\r\n(CCP § 2033.300(a))

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TENTATIVE RULING:

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Defendant / Cross-Complainant\r\nRaymond C. Perry aka Chris Perry’s Motion to Vacate Order Deeming Admissions\r\nAdmitted is DENIED.

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ANALYSIS:

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On November 2, 2018, Plaintiff Aguileo Gutierrez\r\n(“Plaintiff”) filed the instant action for breach of contract against Defendant\r\nRaymond C. Perry (“Defendant”). On April 4, 2019, Defendant filed a\r\nCross-Complaint against Plaintiff. On June 7, 2019, Defendant filed a Substitution\r\nof Attorney form indicating that he was proceeding in pro per going forward.

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The Court granted Plaintiff’s Motion to Deem Requests for\r\nAdmission Admitted Against Defendant on November 7, 2019. However, the Court\r\ndenied Plaintiff’s Motion for Terminating Sanctions on July 8, 2020. The matter\r\ncame for trial on September 3, 2020 and the Court continued the trial date to\r\nJuly 8, 2021. Due to there being no judge available for trial on July 8, 2021,\r\nthe trial date was again continued to November 16, 2021.

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Defendant filed the instant Motion for Relief from\r\nAdmissions on July 7, 2021. To date, no opposition has been filed.

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Discussion

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Defendant moves for relief from the order deeming Requests\r\nfor Admission admitted against him pursuant to Code of Civil Procedure section\r\n2033.300, which states in relevant part: “[t]he court may permit withdrawal or\r\namendment of an admission only if it determines that the admission was the\r\nresult of mistake, inadvertence, or excusable neglect, and that the party who\r\nobtained the admission will not be substantially prejudiced in maintaining that\r\nparty's action or defense on the merits.” (Code Civ. Proc., § 2033.300, subd,\r\n(b).)

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Defendant contends that at the time the Court granted\r\nPlaintiff’s Motion to Deem Requests for Admissions Admitted, he did not realize\r\nhe was without legal representation. (Motion, Perry Decl., ¶3.) In support of\r\nthis, Defendant attaches a copy of the substitution of attorney form that was\r\npurportedly signed by his former attorney and himself in June 2019. (Id.\r\nat Exh. A.) The first page indicates that Defendant’s signature is by facsimile\r\npursuant to Cal. Rules of Court 2.305(d), but Defendant denies ever signing the\r\nform or being served with it. (Id. at ¶3.) The copy of the Substitution\r\nof Attorney form attached to the Motion does not include the second page.\r\nHowever, the copy on file with the Court does have the second page, on which\r\nDefendant’s written signature is included dated May 31, 2019. (Substitution of\r\nAttorney, filed 06/07/19, p. 2.) This signature matches the signature of\r\nDefendant in a document titled “COMBINED RESPONSES OF DEFENDANT RAYMOND C.\r\nPERRY TO PLAINTIFF'S FIRST SET OF SPECIAL INTERROGATORIES, FIRST SET OF\r\nREQUESTS FOR PRODUCTION OF DOCUMENTS AND FIRST SET OF FORM INTERROGATORIES”\r\nthat was signed by Defendant on June 7, 2019 as “Defendant and Cross\r\nComplainant IN PRO PER.” (See Exhibit B, Declaration of Jae H. Kim filed\r\n2/19/20.) This document controverts Defendant’s claims that he was unaware that\r\nhis counsel, Thomas Widger, had substituted out in June 2019 and that he first\r\nlearned that he was unrepresented on June 29, 2021. (Motion, Perry Dec. ¶¶\r\n3,5.)

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Moreover, Defendant does not explain how he failed to\r\nreceive the numerous documents served on him by Plaintiff’s counsel and the\r\nCourt after June 2019, including the Motion to Deem Requests for Admission\r\nserved on October 3, 2019, the Motion for Terminating Sanctions served on\r\nFebruary 17, 2020, the Notice of Continuance of Trial served on April 1, 2020,\r\nand the order denying the Motion for Terminating Sanctions served on July 8,\r\n2020. (Motion, Perry Decl., ¶4.) Simply stating that he was never served with\r\nthese papers and did not receive them is insufficient to show that Defendant\r\nwas not aware of his former attorney’s lack of involvement. Nor does Defendant\r\nexplain how he suddenly learned that he was unrepresented on June 29, 2021,\r\nwhich was more than nine months after the last proceedings in this case. (Id.\r\nat ¶5.)

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Without further explanation, Defendant has not demonstrated\r\nthrough credible evidence that he was unaware of the proceedings in this case\r\nsuch that the admissions were entered as a result of mistake, inadvertence, or\r\nexcusable neglect.

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Conclusion

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Defendant / Cross-Complainant\r\nRaymond C. Perry aka Chris Perry’s Motion to Vacate Order Deeming Admissions\r\nAdmitted is DENIED.

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Court clerk to give notice.

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Case Number: 18STLC13458    Hearing Date: July 08, 2020    Dept: 26

Gutierrez v. Perry, et al.

MOTION FOR TERMINATING AND MONETARY SANCTIONS

(CCP § 2023.010)

TENTATIVE RULING:

Plaintiff Aguileo Gutierrez’s Motion for Terminating and Monetary Sanctions is DENIED AS TO THE REQUEST FOR TERMINATING SANCTIONS AND GRANTED AS TO THE REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $600.00 AGAINST DEFENDANT RAYMOND C. PERRY.

ANALYSIS:

Plaintiff Aguileo Gutierrez (“Plaintiff”) filed the instant action for breach of contract and fraud against Defendant Raymond C. Perry (“Defendant”) on November 2, 2018. On April 5, 2019, Defendant filed a Cross-Complaint for breach of contract and negligence against Plaintiff. On November 7, 2019, the Court granted Plaintiff’s motion to deem requests for admission deemed against Defendant. (Minute Order, 111/07/19.)

On February 19, 2020, Plaintiff filed the instant Motion for Terminating Sanctions, asking the Court to strike Defendant’s answer to the Complaint, enter Defendant’s default, and award Plaintiff monetary sanctions in the sum of $3,060.00. To date, no opposition has been filed.

Discussion

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subds. (d), (g); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) The court should look to the totality of the circumstances in determining whether terminating sanctions are appropriate. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.” (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.) “The court may impose a terminating sanction by one of the following orders:

An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

An order staying further proceedings by that party until an order for discovery is obeyed.

An order dismissing the action, or any part of the action, of that party.

An order rendering a judgment by default against that party.”

(Code Civ. Proc., § 2023.030, subd. (d).)

The court finds that terminating sanctions are not warranted here. Plaintiff points to no conduct by Defendant that amounts to willful violation of a Court order. In fact, there is no evidence of any violation of a Court order, willful or otherwise. (Motion, Kim Decl.) It appears that Plaintiff is seeking terminating and monetary sanctions on the grounds that Defendant has failed to respond to discovery propounded throughout this action. (Id. at ¶¶3-5 and Exhs. A-C.) Plaintiff, however, has not sought Court orders with respect to this discovery in order to effectuate Defendant’s compliance with the discovery statutes. The Court will not escalate to terminating sanctions without a showing that other, lesser sanctions are ineffective in obtaining compliance with the Court’s orders.

Finally, to the extent Plaintiff seeks monetary sanctions with respect to Defendant’s conduct, the Court finds that such sanctions are properly noticed and warranted under the moving statute, Code of Civil Procedure section 2023.030. Plaintiff served discovery requests on Defendant on April 18, 2019. (Motion, Kim Decl., Exh. A.) On June 8, 2019, Defendant served objections to the requests. (Id. at Exh. B.) Responses, however, were due by May 23, 2019 and any response thereafter waived the right to object. (Code Civ. Proc., §§ 2030.260, 2030.290, 2031.260, 2031.290.) Defendant’s responses, therefore, were improper and are subject to sanctions. However, the amount sought in sanctions is excessive. Sanctions are awarded in the amount of $600.00 for two hours of attorney time billed at $300.00 per hour. (Motion, Kim Decl., ¶7.)

Conclusion

Plaintiff Aguileo Gutierrez’s Motion for Terminating and Monetary Sanctions is DENIED AS TO THE REQUEST FOR TERMINATING SANCTIONS AND GRANTED AS TO THE REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $600.00 AGAINST DEFENDANT RAYMOND C. PERRY. SANCTIONS ARE TO BE PAID TO PLAINTIFF’S COUNSEL WITHIN 30 DAYS’ NOTICE OF THIS ORDER.

Moving party to give notice.

*Hearing may need to be heard at 2:00 p.m. Please e mail clerk at 8:30 a.m. <SSCdept26@LACourt.org>

Case Number: 18STLC13458    Hearing Date: November 07, 2019    Dept: 94

MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED

(CCP § 2033.280)

TENTATIVE RULING:

Plaintiff Aguileo Gutierrez’s Motion to Deem Admitted Matters served on Defendant Raymond C. Perry, is GRANTED.

RELIEF REQUESTED: Deem Requests for Admission, Set One, served on Defendant Raymond C. Perry on August 8, 2019, admitted.

ANALYSIS:

On November 2, 2018, Plaintiff Aguileo Gutierrez (“Plaintiff”) filed the instant action for breach of lease agreement against Defendant Raymond C. Perry (“Defendant”). Plaintiff filed the instant Motion to Deem Requests for Admission Admitted on October 3, 2019. To date, no opposition has been filed.

Defendant has not provided verified responses to the discovery propounded by Plaintiff, nor filed an opposition to the motion. There is no requirement for a prior meet and confer effort before a motion to deem requests for admission can be filed. Further, the motion can be brought any time after the responding party fails to provide the responses. Based on the foregoing, the MOTION IS GRANTED, and the court deems the Requests for Admission, Set One, served on Defendant on August 8, 2019, admitted.

Moving party to give notice.