This case was last updated from Los Angeles County Superior Courts on 10/02/2020 at 07:27:47 (UTC).

AURORA LEMERE, ET AL. VS LISA JEWETT, ET AL.

Case Summary

On 04/15/2019 AURORA LEMERE filed a Personal Injury - Other Personal Injury lawsuit against LISA JEWETT. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******3658

  • Filing Date:

    04/15/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiffs

LEMERE AURORA

SPOORS DOUGLAS B

Defendants

ELLIOTT JOHN

JEWETT LISA

ELLIOTT VICTORIA

Attorney/Law Firm Details

Plaintiff Attorney

SPOORS DOUGLAS B.

Defendant Attorney

WELLS KATHLEEN ELIZABETH

 

Court Documents

Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion for Sanctions; Order to Show Cause Re: Stat...) of 09/01/2020

9/1/2020: Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion for Sanctions; Order to Show Cause Re: Stat...) of 09/01/2020

Minute Order - Minute Order (Hearing on Motion for Reconsideration; Order to Show Cause Re...)

7/27/2020: Minute Order - Minute Order (Hearing on Motion for Reconsideration; Order to Show Cause Re...)

Declaration (name extension) - Declaration of Douglas Spoors

7/17/2020: Declaration (name extension) - Declaration of Douglas Spoors

Declaration (name extension) - Declaration of Aurora Lemere in reply to defendants' opposition to motion for reconsideration

7/17/2020: Declaration (name extension) - Declaration of Aurora Lemere in reply to defendants' opposition to motion for reconsideration

Opposition (name extension) - Opposition To Plaintiffs' Motion for Reconsideration

7/13/2020: Opposition (name extension) - Opposition To Plaintiffs' Motion for Reconsideration

Opposition (name extension) - Opposition TO MOTION FOR SANCTIONS

7/13/2020: Opposition (name extension) - Opposition TO MOTION FOR SANCTIONS

Motion for Sanctions - Motion for Sanctions

6/26/2020: Motion for Sanctions - Motion for Sanctions

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

1/10/2020: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Certificate of Mailing for - Certificate of Mailing for (Court Order) of 12/19/2019

12/19/2019: Certificate of Mailing for - Certificate of Mailing for (Court Order) of 12/19/2019

Minute Order - Minute Order (Hearing on Motion to Compel Discovery (not "Further Discovery...)

12/16/2019: Minute Order - Minute Order (Hearing on Motion to Compel Discovery (not "Further Discovery...)

Reply (name extension) - Reply memorandum of points and authorities in Support of Defendants' Motion for Change of Venue

12/9/2019: Reply (name extension) - Reply memorandum of points and authorities in Support of Defendants' Motion for Change of Venue

Minute Order - Minute Order (Hearing on Ex Parte Application for Continuance of Hearing Dates)

10/3/2019: Minute Order - Minute Order (Hearing on Ex Parte Application for Continuance of Hearing Dates)

Memorandum of Points & Authorities - Memorandum of Points & Authorities

9/24/2019: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Reply (name extension) - Reply to Victoria Elliott's Opposition to Motion to Compel etc.

9/5/2019: Reply (name extension) - Reply to Victoria Elliott's Opposition to Motion to Compel etc.

Proof of Service by Mail - Proof of Service by Mail

8/28/2019: Proof of Service by Mail - Proof of Service by Mail

Declaration (name extension) - Declaration Lisa Jewett

8/29/2019: Declaration (name extension) - Declaration Lisa Jewett

Declaration (name extension) - Declaration Victoria Elliott

8/29/2019: Declaration (name extension) - Declaration Victoria Elliott

Notice (name extension) - Notice Notice of Unavailability

8/14/2019: Notice (name extension) - Notice Notice of Unavailability

107 More Documents Available

 

Docket Entries

  • 09/01/2020
  • DocketMinute Order (Hearing on Motion for Sanctions; Order to Show Cause Re: Stat...)

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  • 09/01/2020
  • DocketCertificate of Mailing for (Hearing on Motion for Sanctions; Order to Show Cause Re: Stat...) of 09/01/2020; Filed by: Clerk

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  • 09/01/2020
  • DocketThe case is placed in special status of: Transfer/Reclassification Pending

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  • 09/01/2020
  • DocketHearing on Motion for Sanctions scheduled for 09/01/2020 at 10:00 AM in Spring Street Courthouse at Department 25 updated: Result Date to 09/01/2020; Result Type to Held

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  • 09/01/2020
  • DocketOrder to Show Cause Re: Status of Transfer/Motion for Reconsideration of Transfer scheduled for 09/01/2020 at 10:00 AM in Spring Street Courthouse at Department 25 updated: Result Date to 09/01/2020; Result Type to Held

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  • 09/01/2020
  • DocketNon-Jury Trial scheduled for 10/13/2020 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 09/01/2020

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  • 09/01/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 04/18/2022 at 10:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 09/01/2020

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  • 07/27/2020
  • DocketNotice of Ruling; Filed by: AURORA LEMERE (Plaintiff)

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  • 07/27/2020
  • DocketHearing on Motion for Sanctions scheduled for 09/01/2020 at 10:00 AM in Spring Street Courthouse at Department 25

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  • 07/27/2020
  • DocketMinute Order (Hearing on Motion for Reconsideration; Order to Show Cause Re...)

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177 More Docket Entries
  • 05/20/2019
  • DocketRequest to Waive Court Fees; Filed by: VICTORIA ELLIOTT (Defendant)

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  • 04/15/2019
  • DocketSummons on Complaint; Issued and Filed by: AURORA LEMERE (Plaintiff); DOUGLAS B SPOORS (Plaintiff); As to: LISA JEWETT (Defendant); JOHN ELLIOTT (Defendant); VICTORIA ELLIOTT (Defendant)

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  • 04/15/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 04/15/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 04/15/2019
  • DocketNon-Jury Trial scheduled for 10/13/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 04/15/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 04/18/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 04/15/2019
  • DocketComplaint; Filed by: AURORA LEMERE (Plaintiff); DOUGLAS B SPOORS (Plaintiff); As to: LISA JEWETT (Defendant); JOHN ELLIOTT (Defendant); VICTORIA ELLIOTT (Defendant)

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  • 04/15/2019
  • DocketCivil Case Cover Sheet; Filed by: AURORA LEMERE (Plaintiff); DOUGLAS B SPOORS (Plaintiff); As to: LISA JEWETT (Defendant); JOHN ELLIOTT (Defendant); VICTORIA ELLIOTT (Defendant)

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  • 04/15/2019
  • DocketCivil Case Cover Sheet; Filed by: AURORA LEMERE (Plaintiff); DOUGLAS B SPOORS (Plaintiff); As to: LISA JEWETT (Defendant); JOHN ELLIOTT (Defendant); VICTORIA ELLIOTT (Defendant)

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  • 04/15/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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Tentative Rulings

Case Number: 19STLC03658    Hearing Date: September 01, 2020    Dept: 25

HEARING DATE: Tue., September 1, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Lemere, et al. v. Jewett, et al. COMP. FILED: 04-15-19

CASE NUMBER: 19STLC03658 DISC. C/O: 09-13-20

NOTICE: OK MOTION C/O: 09-28-20

TRIAL DATE: 10-13-20

PROCEEDINGS: MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.7

MOVING PARTY: Defendants John Elliot, Lisa Jewett, and Victoria Elliot

RESP. PARTY: Plaintiffs Aurora Lemere and Douglas B. Spoors

MOTION FOR SANCTIONS

(CCP § 128.7)

TENTATIVE RULING:

Defendants John Elliot, Lisa Jewett, and Victoria Elliot’s Motion for Sanctions Pursuant to Code of Civil Procedure section 128.7 is GRANTED against Douglas B. Spoors only in the amount of $1,800.00 to be paid within thirty (30) days of notice of this order.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on July 13, 2020 [ ] Late [ ] None

REPLY: Filed on July 20, 2020 [ ] Late [ ] None

ANALYSIS:

  1. Background

On April 15, 2019, Plaintiffs Aurora Lemere and Douglas B. Spoors (collectively, “Plaintiffs”) filed the instant action for malicious prosecution, conspiracy, intentional infliction of emotional distress, and negligent infliction of emotional distress against Defendants Lisa Jewett, John Elliot, and Victoria Elliot (collectively, “Defendants”).

On December 16, 2019, the Court granted Defendants’ motion for change of venue and tentatively transferred the action to the Superior Court of the County of Santa Cruz. (12/16/19 Minute Order.) It also set an Order to Show Cause re: Status of Transfer/Motion for Reconsideration of Transfer for February 19, 2020, and warned that if a motion for reconsideration was not filed by that date, the matter would be transferred to Santa Cruz. (Id.) On January 13, 2020, Plaintiffs filed a motion for reconsideration of the December 16 Order.

Defendants filed a Motion for Sanctions Pursuant to Code of Civil Procedure section 128.7 (the “Motion for Sanctions”) on June 26, 2020, which was originally scheduled to be heard on July 27, 2020. On July 13, 2020, Plaintiffs filed an Opposition and on July 20, 2020, Defendants filed a Reply.

At the initial hearing on July 27, 2020, the Court denied Plaintiffs’ motion for reconsideration. (7/27/20 Minute Order.) In doing so, the Court found that the motion for reconsideration was not properly served on Defendants, was untimely, and was not supported by an affidavit as required by Code of Civil Procedure section 1008. (Id.) The Court also rejected Plaintiffs’ argument that a 1984 Supreme Court case constituted “new” law that satisfied Section 1008’s requirement that any motion for reconsideration be based on “new or different facts, circumstances, or law.” (Id.)

However, because the Motion for Sanctions was not ruled on in time to be posted with the July 27 tentative ruling, the Court stayed the transfer to the Superior Court of Santa Cruz pending final adjudication of the Motion for Sanctions. (Id.)

  1. Legal Standard

Code of Civil Procedure section 1008, subdivision (d) provides that a violation of this section may be punished as contempt and with sanctions as allowed by Section 128.7.

An attorney or unrepresented party who presents a motion to the court makes an implied certification as to its legal and factual merit, which is subject to sanctions for violation of this certification under Code of Civil Procedure section 128.7. (Murphy v. Yale Materials Handling Corp. (1997) 54 Cal.App.4th 619, 623.) The Court may impose sanctions for conduct that violates any one of the requirements set forth in Code of Civil Procedure section 128.7, subdivision (b). (Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 976.)

Code of Civil Procedure section 128.7, subdivision (b) provides:

(b)

(1)

(2)

(3)

(4)

Only “an attorney or unrepresented party may be sanctioned” under the statute. (In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1221.)

“Under section 128.7, a court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. [Citation.]” (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189.) “A claim is factually frivolous if it is ‘not well grounded in fact’ and is legally frivolous if it is ‘not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.’ [Citation.] In either case, to obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. [Citation.] A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’ [Citations.]” (Id.) No showing of bad faith is required. (In re Marriage of Reese & Guy, supra, 73 Cal.App.4th at p. 1221.)

“The California Legislature essentially sought to replicate rule 11 [of the Federal Rules of Civil Procedure] when it enacted section 128.7.” (Musaelian v. Adams (2009) 45 Cal.4th 512, 518, fn. 2.) As a result, federal case law construing rule 11 is persuasive authority on the meaning of Code of Civil Procedure section 128.7. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.) Under rule 11, even though an action may not be frivolous when it is filed, it may become so if later-acquired evidence refutes the findings of a prefiling investigation and the attorney continues to file papers supporting the client's claims. (See Childs v. State Farm Mutual Automobile Insurance Company (5th Cir. 1994) 29 F.3d 1018, 1024-1026.) As a result, a plaintiff's attorney cannot “just cling tenaciously to the investigation he had done at the outset of the litigation and bury his head in the sand.” (Id. at 1025.)

In addition, Code of Civil Procedure section 128.7 “contains a safe harbor provision. It requires the party seeking sanctions to serve on the opposing party, without filing or presenting it to the court, a notice of motion specifically describing the sanctionable conduct. Service of the motion initiates a 21-day ‘hold’ or ‘safe harbor’ period. [Citations.] During this time, the offending document may be corrected or withdrawn without penalty. If that occurs, the motion for sanctions ‘‘shall not’’ be filed. [Citations.] By mandating a 21-day safe harbor period to allow correction or withdrawal of an offending document, section 128.7 is designed to be remedial, not punitive. [Citation.]” (Li v. Majestic Industry Hills, LLC (2009) 177 Cal.App.4th 585, 590-591.)

  1. Discussion

Here, Defendants served their Motion for Sanctions on May 30, 2020 via regular mail and e-mail, but did not file with the Court until June 26, 2020. (Mot., Proofs of Service.) Thus, Defendants have complied with the safe harbor provision requirements.

Defendants seek sanctions of $11,491.00 to “recoup costs and fees incurred in opposing Plaintiffs’ patently frivolous motion for reconsideration” and argue sanctions are necessary to curb Plaintiffs’ ongoing abusive practices. (Id. at p. 3:13-19.) Defendants point to the fact that Plaintiffs’ motion for reconsideration was incomplete when filed, and argue they have not identified any new law that warrants that motion. (Id. at p. 4:1-3, p. 6:25-7:4.) They further argue that Plaintiffs’ argument that Calder v. Jones (1984) 465 U.S. 783, constitutes “new law” is an “unprecedented interpretation of CCP 1008” that is not supported by any authority. (Id. at p. 6:1-5; p. 7:13-15.)

The main point of contention between the parties is that during the December 16, 2019 hearing, Defendants cited a case in support of their motion for change of venue, Brown v. Happy Valley Fruit Growers Assn., which was not cited in Defendants’ briefs. (Mot., p. 4:24-5:9; Oppo. p. 5:10-20.) Plaintiffs argue the Court issued a stay of its ruling transferring the action “specifically to allow Plaintiffs to present further argument in that no one, including the Court, had been given the opportunity to review the ‘new’ authority presented by defense counsel.” (Id.) Plaintiffs further argue that it was only because the Court suggested it that Plaintiffs filed their motion for reconsideration. (Id.) Importantly, the Court did not request further briefing based on the Brown v. Happy Valley Fruit Growers Assn. case and instead adopted its tentative ruling as its final order based on the arguments presented in the parties’ briefs. (See 12/16/19 Minute Order.) Plaintiffs further argue that attorneys must be given substantial breathing room to develop and assert factual and legal arguments, and thus, sanctions should not be routinely or easily awarded, even for a claim that is arguably frivolous. (Mot., p. 4:5-12.)

Indeed, some federal cases on Rule 11 sanctions caution against chilling an attorney’s enthusiasm or creativity in crafting theories, at least in new areas of the law that are not regarded as settled. (Hudson v. Moore Business Forms, Inc. (9th Cir. 1987) 836 F.2d 1156, 1160.) However, the requirements of Code of Civil Procedure section 1008 are not novel or complex, and Plaintiffs did not cite any authority that supported their interpretation of what constitutes “new law.” As noted in the Court’s July 27, 2020 Order, a 1984 Supreme Court decision can hardly be considered a new development in the law. No bad faith showing is required; a showing that the attorney’s conduct is objectively unreasonable suffices to impose Section 128.7 sanctions. (In re Marriage of Reese & Guy, supra, 73 Cal.App.4th at p. 1221.) The Court finds Plaintiffs’ argument that Calder v. Jones constitutes “new law” objectively unreasonable.

Defendants request sanctions of $11,491.00, billed at a rate of $600.00 per hour, against attorney and Plaintiff in pro per, Douglas Spoors only. (Mot., Wells Decl., ¶¶ 4, 6; Reply, p. 7:8-12.) Sanctions requested include $4,800.00 based on 8 hours of attorney time to prepare the instant motion and related papers, $6,000.00 based on ten hours of travel time to Los Angeles for the hearing on this Motion, $391.00 for mileage based on 680 miles at the IRS rate of $0.575 per mile, and $300.00 for food and lodging. (Mot., Wells Decl., ¶ 6.)

Monetary sanctions, if warranted, may be awarded for reasonable expenses and attorney’s fees incurred in presenting or opposing the motion for sanctions. (Code Civ. Proc., § 128.7, subd. (c)(1); Eichenbaum v. Avalon (2003) 106 Cal.App.4th 967, 977.) However, sanctions imposed for violation of Section 128.7, subdivision (b), “shall be limited to what is sufficient to deter repetition of this conduct or similar conduct by others similarly situated.” (Code Civ. Proc., § 128.7, subd. (d).) (Emphasis added.) The Court finds the request excessive given that no travel to the hearing is strictly required, as parties are currently encouraged to appear via CourtCall. The Court finds sanctions in the amount of $1,800.00, based on three hours of attorney time, to be reasonable to achieve the goal of deterrence. Sanctions are to be paid by Plaintiff Spoors only within thirty (30) days of notice of this order.

  1. Conclusion & Order

For the foregoing reasons, Defendants John Elliot, Lisa Jewett, and Victoria Elliot’s Motion for Sanctions Pursuant to Code of Civil Procedure section 128.7 is GRANTED against Douglas B. Spoors only in the amount of $1,800.00 to be paid within thirty (30) days of notice of this order.

Moving party is ordered to give notice.

Case Number: 19STLC03658    Hearing Date: July 27, 2020    Dept: 25

HEARING DATE: Mon., July 27, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: LeMere, et al. v. Jewett, et al. COMP. FILED: 04-15-19

CASE NUMBER: 19STLC03658 DISC. C/O: 09-13-20

NOTICE: NO (Reconsideration) MOTION C/O: 09-28-20

TRIAL DATE: 10-13-20

PROCEEDINGS: (1) MOTION FOR RECONSIDERATION

(2, 3, & 4) MOTION TO COMPEL FURTHER RESPONSES FROM JOHN ELLIOT, LISA JEWETT, AND VICTORIA ELLIOT TO SPECIAL INTERROGATORIES, SET ONE, AND REQUEST FOR SANCTIONS

MOVING PARTY: Plaintiffs Aurora LeMere and Douglas B. Spoors

RESP. PARTY: Defendants John Elliot, Lisa Jewett, and Victoria Elliot

MOTION FOR RECONSIDERATION

(CCP § 1008)

MOTION TO COMPEL FURTHER RESPONSES TO INTERROGATORIES AND REQUEST FOR SANCTIONS

(CCP § 2030.300)

TENTATIVE RULING:

Plaintiffs Aurora LeMere and Douglas B. Spoors’ Motion for Reconsideration is DENIED. The matter is TRANSFERRED to the Superior Court of the County of Santa Cruz. In addition, Plaintiffs’ Motions to Compel Further Responses are PLACED OFF CALENDAR.

SERVICE:

[ ] Proof of Service Timely Filed (CRC, rule 3.1300) NO (Reconsideration)

[ ] Correct Address (CCP §§ 1013, 1013a) NO (Reconsideration)

[ ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO (Reconsideration)

Motion for Reconsideration

OPPOSITION: Filed on July 13, 2020 [ ] Late [ ] None

REPLY: Filed on July 17, 2020 [ ] Late [ ] None

Motion to Compel Further Responses

OPPOSITION: None filed as of July 24, 2020 [ ] Late [X] None

REPLY: None filed as of July 24, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background

On April 15, 2019, Plaintiffs Aurora LeMere and Douglas B. Spoors (collectively, “Plaintiffs”) filed the instant action for malicious prosecution, conspiracy, intentional infliction of emotional distress, and negligent infliction of emotional distress against Defendants Lisa Jewett, John Elliot, and Victoria Elliot (collectively, “Defendants”).

On October 10, 2019, Plaintiffs filed the instant (1) Motion to Compel Further Responses from John Elliot to Special Interrogatories, Set One, and Request for Sanctions, (2) Motion to Compel Further Responses from Lisa Jewett to Special Interrogatories, Set One, and Request for Sanctions, and (3) Motion to Compel Further Responses from Victoria Elliot to Special Interrogatories, Set One, and Request for Sanctions (collectively, the “Discovery Motions”). The Court continued the initial February 19, 2020 hearing because Plaintiffs failed to file a separate statement as required by California Rules of Court, rule 3.1345, or a proof service demonstrating the Discovery Motions were properly served. (2/19/20 Minute Order.) To date, no opposition has been filed.

On December 16, 2019, the Court granted Defendants’ motion for change of venue and tentatively transferred the action to the Superior Court of the County of Santa Cruz. (12/19/19 Minute Order.) It also set an Order to Show Cause re: Status of Transfer/Motion for Reconsideration of Transfer for February 19, 2020, and warned that if a motion for reconsideration was not filed by that date, the matter would be ordered transferred to Santa Cruz. (Id.) On January 13, 2020, Plaintiffs filed a Motion for Reconsideration (the “Motion”). Pursuant to the parties’ stipulation, the OSC was continued to July 27, 2020 to be concurrently heard with the scheduled Motion for Reconsideration. (2/5/20 Stipulation.) On July 13, 2020, Defendants filed an Opposition to the Motion and on July 17, 2020, Plaintiffs filed a Reply.

  1. Motion for Reconsideration

A. Legal Standard

Code of Civil Procedure section 1008 provides, in pertinent part:

“(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

(e) This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

(Code Civ. Proc. § 1008, subd. (a), (b), (e).)

B. Discussion

Before addressing the merits of Plaintiffs’ Motion, the Court notes the following:

Plaintiffs did not include a proof of service demonstrating Defendants were properly served with this Motion. Failure to give notice of a motion is not only a violation of the statutory requirements but of due process. (Code Civ. Proc., § 1005; Jones v. Otero (1984) 156 Cal.App.3d 754, 757.) However, “[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.]” (Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7.) As Defendants filed an Opposition to the Motion on the merits, any deficiencies in notice are waived.

Defendants served a copy of the Court’s December 19, 2019 tentative decision, adopted as its final ruling, that same day via e-mail at dougspoors@yahoo.com. (1/10/20 Proof of Service.) Thus, the deadline to file a motion for reconsideration, extended by two days for electronic service pursuant to Code of Civil Procedure section 1010.6, subdivision (a)(4)(B), and excluding Court holidays, was January 2, 2020. (Code Civ. Proc., § 1008, subd. (a).) As this Motion was not filed until January 13, 2020, it is untimely.

In addition, although Plaintiffs filed their Motion on January 13, 2020, they did not file the required supporting affidavit until approximately six months later, on July 9, 2020. Defendants argue that because Plaintiffs failed to include the required declaration with their moving papers, the Motion is fatally defective and must be denied. (Oppo., p. 4:10-24.) In Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1048, the court of appeals held that a motion for reconsideration was “invalid when filed and served because [it] failed to contain an affidavit or declaration in support of the motion” and that an invalid motion could not be cured by the subsequent filing of the required affidavit. (Id. at p. 1048-49.) The Court noted that the language of California Rules of Court, rule 8.108(e) does not allow the piecemeal filing of a motion, and thus “a single, complete, valid motion must be filed-not one that is later assembled from constituent parts like some Frankenstein monster.” (Ibid.) Because Plaintiffs’ Motion did not include the required supporting declaration when it was first filed, it is invalid.

Furthermore, the late declaration filed by Plaintiffs does not demonstrate the existence of “new or different facts, circumstances, or law” as required by Section 1008, subdivision (a). Plaintiffs argue their Motion is “based on new law, introduced in rebuttal of Defendants’ arguments at the hearing on December 19, 2019…based on the U.S. Supreme Court case, Calder v. Jones (1984) 465 U.S. 783.” (Mot., Spoors Decl., ¶ 5, Reply, p. 3:21-4:5.) However, a 37-year old case cannot be considered new law. The fact that it was new to Plaintiffs does not make it “new” under Code of Civil Procedure section 1008. Plaintiffs also failed to specify in their supporting declaration what judge the previous application was made to.

As Section 1008 is expressly jurisdictional, and the Court cannot reconsider any order unless made in accordance with Section 1008’s requirements (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 384), Plaintiffs’ Motion is DENIED.

  1. Motion to Compel Further Responses

As the Motion for Reconsideration has been denied, Plaintiffs’ Motions to Compel Further Responses are PLACED OFF CALENDAR.

  1. Conclusion & Order

For the foregoing reasons, Plaintiffs Aurora LeMere and Douglas B. Spoors’ Motion for Reconsideration is DENIED. The matter is TRANSFERRED to the Superior Court of the County of Santa Cruz. In addition, Plaintiffs’ Motions to Compel Further Responses are PLACED OFF CALENDAR.

Moving party is ordered to give notice.

Case Number: 19STLC03658    Hearing Date: February 19, 2020    Dept: 25

MOTION TO COMPEL FURTHER RESPONSES AND REQUEST FOR SANCTIONS

(CCP § 2030.200)

TENTATIVE RULING:

Plaintiffs Aurora LeMere and Douglas B. Spoors’ Motions to Compel Further Responses are CONTINUED TO APRIL 30. 2020 at 10:30 a.m. in Department 25, SPRING STREET COURTHOUSE..

At least 16 court days before the next scheduled hearing, Plaintiffs must file and serve supplemental papers correcting the deficiencies identified herein. Failure to comply with the Court’s orders may result in the Motion being placed off calendar or denied.

ANALYSIS:

  1. Background

On April 15, 2019, Plaintiffs Aurora LeMere and Douglas B. Spoors (collectively, “Plaintiffs”) filed the instant action for malicious prosecution, conspiracy, intentional infliction of emotional distress, and negligent infliction of emotional distress against Defendants Lisa Jewett, John Elliot, and Victoria Elliot (collectively, “Defendants”).

On October 10, 2019, Plaintiffs filed the instant (1) Motion to Compel Further Responses from John Elliot to Special Interrogatories, Set One, and Request for Sanctions, (2) Motion to Compel Further Responses from Lisa Jewett to Special Interrogatories, Set One, and Request for Sanctions, and (3) Motion to Compel Further Responses from Victoria Elliot to Special Interrogatories, Set One, and Request for Sanctions (collectively, the “Motions”). To date, no opposition or reply briefs have been filed.

On December 16, 2019, the Court granted Defendant’s Motion for Change of Venue and tentatively transferred the action to the Superior Court of the County of Santa Cruz, set an Order to Show Cause re: Status of Transfer/Motion for Reconsideration of Transfer for February 19, 2020, and stated that if a Motion for Reconsideration was not filed by that date, the matter would be ordered transferred to Santa Cruz. (12/19/19 Minute Order.) On January 13, 2020, Plaintiffs filed a Motion for Reconsideration. Pursuant to the parties stipulation, the OSC was continued to July 27, 2020 to be concurrently heard with the scheduled Motion for Reconsideration. (2/5/20 Stipulation.)

  1. Legal Standard

Code of Civil Procedure section 2030.300 provides that “[o]n receipt of a response to interrogatories, the propounding party may move for an order compelling further response if the propounding party deems that any of the following apply: (1) [a]n answer to a particular interrogatory is evasive of incomplete; (2) [a]n exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; [or] (3) [a]n objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a).)

Notice of the motion must be given within 45 days of service of the verified response, otherwise the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2030.300, subd. (c).) The motion must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2030.300, subd. (b)(1).)

Finally, California Rules of Court, rule 3.1345 requires that all motions involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, Rule 3.1345, subd. (a)(3)).

  1. Discussion

As an initial matter, the Court notes that Plaintiffs have not included a proof of service for the Notice of Motion and Motion for any of the three instant Motions. Code of Civil Procedure section 1005(b) requires that all moving and supporting papers be served and filed at least 16 court days before the hearing, plus five calendar days if service is effectuated by mail to a California address. Thus, Plaintiffs are ordered to file proofs of service demonstrating each of the three motions were properly served.

The Court also notes that Plaintiffs’ Motions are not accompanied by a separate statement as required by California Rules of Court, rule 3.1345. The separate statement “provides all the information necessary to understand each discovery request and all the responses to it that are at issue” and “must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.” (Cal. Rules of Court, rule 3.1345, subd. (c).) Plaintiffs are ordered to file and serve the required separate statement at least 16 court days prior to the next scheduled hearing date.

  1. Conclusion & Order

For the foregoing reasons, Plaintiffs Aurora LeMere and Douglas B. Spoors’ Motions to Compel Further Responses are CONTINUED TO APRIL 30, 2020, at 10:30 a.m. in Department 25, SPRING STREET COURTHOUSE..

At least 16 court days before the next scheduled hearing, Plaintiffs must file and serve supplemental papers correcting the deficiencies identified herein. Failure to comply with the Court’s orders may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.

Case Number: 19STLC03658    Hearing Date: December 16, 2019    Dept: 94

Lemere, et al. v. Jewett, et al

MOTION TO TRANSFER OF VENUE

(CCP § 395(a))

.

TENTATIVE RULING:

Defendants Lisa Jewett, John Elliott, and Victoria Elliott’s Motion to Transfer Venue is GRANTED. THE ACTION IS TRANSFERRED TO THE SUPERIOR COURT OF THE COUNTY OF SANTA CRUZ.

Plaintiffs Aurora Lemere and Douglas B. Spoors’ Motions to Compel Discovery Responses are PLACED OFF CALENDAR.

ANALYSIS: 

Plaintiffs Aurora Lemere and Douglas B. Spoors (“Plaintiffs”) filed the instant action for malicious prosecution (causes of action 1-4), conspiracy (cause of action 5), and infliction of emotional distress (causes of action 6-17) against Defendants Lisa Jewett, John Elliott, and Victoria Elliott (collectively “Defendants”) on April 15, 2019. The case arises out of Plaintiffs’ alleged discovery of Defendants’ financial elder abuse of the parties’ mother, and Defendants’ allegedly retaliatory lawsuits against Plaintiffs for exposure of the abuse. (Compl., ¶¶8-21.)

On May 23, 2019, Defendants filed the instant Motion to Change Venue (“the Motion”). On August 5, 2019, Plaintiffs filed motions to compel discovery responses, which are to be heard concurrently with this Motion. The Motion was initially set for hearing on September 25, 2019, but was continued to November 20, 2019 to address a service issue and allow Defendants an opportunity to file supplemental evidence regarding their county of residence. The hearing on November 20, 2019 was not held, but continued at Defendants’ request to be heard after certain discovery motions filed by Plaintiffs. Following the filing of Defendants’ supplemental papers on November 18, 2019, Plaintiffs filed an opposition on December 2, 2019 and Defendants replied on December 9, 2019.

Discussion

Defendants bring the motion pursuant to Code of Civil Procedure section 395, subdivision (a), which states in relevant part:

Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the actionIf the action is for injury to person or personal property or for death from wrongful act or negligence, the superior court in either the county where the injury occurs or the injury causing death occurs or the county where the defendants, or some of them reside at the commencement of the action, is a proper court for the trial of the action.

(Code Civ. Proc., § 395, subd. (a) (emphasis added.) Defendants point to the fact that none of them lives in Los Angeles County to argue that venue is not proper here under the first sentence of the statute. Defendants supplemental declaration demonstrate that they have resided, and currently reside, in San Mateo County (Defendant Lisa Jewett), Santa Cruz County (Defendant Victoria Elliott), and Sutter County (John Elliott). (Motion, Supp. Decls. filed 11/18/19, ¶2.) All three Defendants express a preference for this action to be transferred to the Superior Court for the County of Santa Cruz. (Id. at ¶4.)

The relevant issue on this Motion is whether Plaintiffs’ action falls within the exception to the rule that venue is proper in the county of the defendant’s residence. As set forth in the second sentence of Code of Civil Procedure section 395, an exception to the rule is that an action for “injury to the person” may be tried in the county where the injury occurs. Plaintiffs’ Complaint specifically alleges “physical ailments,” “injuries to health, strength and activities,” “severe shock to her [his] nervous system” and “physical and nervous pain and suffering” as some of the damages they suffered as a result of Defendants’ conduct. (Compl., ¶¶26, 34, 47, 54, 59, 60.)

Notably, although the Complaint alleges causes of action for malicious prosecution, conspiracy and infliction of emotional distress, the gravamen of all the claims is malicious prosecution. The phrase “injury to the person” in the venue statute has been narrowly construed by case law. In Monk v. Ehret (1923) 192 Cal. 186, 190, 193, one of the earliest cases to consider this issue, the Supreme Court of California ruled that while a causs of action for malicious prosecution might “come within the class of common-law injuries to person” the amendment to the venue statute that added the “injury to person” language “was not intended by said amendment to extend the right of place of trial to such a trespass as is described by the complaint in the instant case (Monk v. Ehret (1923) 192 Cal. 186.) Specifically, the legislature’s basis for added the “injury to the person” exception to the venue statute was “the increasing number of bodily injuries and deaths and injuries to property brought about by the general use of motor vehicles . . . .” (Id. at 193.)

Lucas v. Lucas Ranching Co.

In motor vehicle accidents, as in other cases where physical injury is directly caused by what has happened, the injury occurs at the place where the happening occurs, and there is logic in having that place a proper one for the trial.

(Id. at 220 (citing Lucas v. Lucas Ranching Co. (1937) 18 Cal.App.2d, 453 456). The Court finds that Lucas is the case most analogous to the facts of this case in that it brought a claim for libel, which similar in kind to malicious prosecution, but for which physical harm was alleged as one of the plaintiff’s damages. In opposition, Plaintiffs offers no reason to distinguish a case for libel from one for malicious prosecution. The Court of Appeal in Cacciaguidi v. Superior Court (1990) 226 Cal.App.3d 181, 183, 187 similarly analogized a cause of action for abuse of process to malicious prosecution and determined the action should be tried in the county of the defendants’ residence. (Cacciaguidi v. Superior Court (1990) 226 Cal.App.3d 181.) Therefore, the Court finds no authority that adding an allegation of physical injury to a cause of action for malicious prosecution pulls it within the “injury to the person” exception of the venue statute.

Having determined that this action was “commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for trial thereof,” transfer is appropriate under Code of Civil Procedure section 396b, subdivision (a).

Based on the foregoing, Defendants’ Motion to Transfer Venue is GRANTED. The action is transferred to the Superior Court of the County of Santa Cruz. It follows that Plaintiffs Aurora Lemere and Douglas B. Spoors’ Motions to Compel Discovery Responses are PLACED OFF CALENDAR.

Moving party to give notice.