JUDITH AUDREY ICKOVITS VS MARK KREHER, ET AL.

Tentative Rulings

Case Number: 18STLC13524    Hearing Date: March 10, 2021    Dept: 25

HEARING DATE: Wed., March 10, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Ickovits v. Kreher, et al. COMPL. FILED: 11-05-18

CASE NUMBER: 18STLC13524 DISC. C/O: 03-22-21

PROCEEDINGS: (1) MOTION SEEKING TO BAR PLAINTIFF FROM OFFERING EVIDENCE FOR FAILURE TO COMPLY WITH CCP 96

(2) MOTION SEEKING RELIEF UNDER CCP 473 REGARDING LATE SERVICE OF CCP 96 DEMAND FOR EVIDENCE

MOVING PARTY: Defendants Mark Kreher and Mary Marlow

RESP. PARTY: Plaintiff Judith Audrey Ickovits

MOTION PRECLUDING EVIDENCE; MOTION FOR RELIEF FROM LATE SERVICE OF DEMAND FOR EVIDENCE

(CCP §§ 96; 473)

TENTATIVE RULING:

Defendants Mark Kreher and Mary Marlow’s (1) Motion Seeking to Bar Plaintiff from Offering Evidence for Failure to Comply with CCP § 96 and (2) Motion Seeking Relief Under CCP § 473 Regarding Late Service of CCP § 96 Demand for Evidence are DENIED.

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

Motion Seeking to Bar Evidence

OPPOSITION: Filed on March 1, 2021 [ ] Late [ ] None

REPLY: Filed on March 3, 2021 [ ] Late [ ] None

Motion For Relief from Late Demand for Evidence Under CCP 96

OPPOSITION: Filed on March 1, 2021 [ ] Late [ ] None

REPLY: None filed as of March 8, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On November 5, 2018, Plaintiff Judith Audrey Ickovitz (“Plaintiff”) filed an action against Defendants Mark Kreher (“Kreher”) and Mary Marlow (“Marlow”) (collectively, “Defendants”). Defendants filed a joint Answer on May 23, 2019.

A non-jury trial was initially set for May 4, 2020. However, on March 23, 2020, the Court, on its own motion, continued the trial to September 1, 2020. (3/27/20 Notice re Continuance of Hearing and Order.) On August 24, 2020, the Court again continued the trial and is now scheduled for April 21, 2021. (8/24/20 Notice re Continuance of Hearing and Order.)

On September 1, 2020, Defendants filed the instant (1) Motion Seeking to Bar Plaintiff from Offering Evidence for Failure to Comply with CCP 96 and (2) Motion Seeking Relief Under CCP 473 Regarding Late Service of CCP 96 Demand for Evidence. Plaintiff filed an Opposition to each Motion on March 1, 2021, and Defendants filed a Reply on March 3, 2021 to the motion to bar evidence only.

1. Legal Standard & Discussion

Code of Civil Procedure section 96 provides that any party may serve on any other party a request for a statement of witnesses and description and copies of evidence. (Code Civ. Proc., § 96, subd. (a).) The request must be served no more than 45 days or less than 30 days prior to the date first set for trial, unless otherwise ordered. (Code Civ. Proc., § 96, subd. (b).) (Emphasis added.) A statement responding to the request must be served within 20 days from service of the request. (Code Civ. Proc., § 96, subd. (c).)

Defendants seek to bar Plaintiff from introducing any evidence at trial due to her failure to respond to a Section 96 demand. (Mot., pp. 3-4.) Defendants state that because that the initial trial date was May 4, 2020, both parties served an untimely CCP § 96 demand on the other, Plaintiff on July 31, 2020 and Defendants on August 3, 2020. (Id. at p. 4.) Notwithstanding the “late” service, Defendants argue they complied with Plaintiff’s untimely CCP § 96 demand. (Id., Kahn Decl., ¶ 9.) However, because Plaintiff refuses to comply with Defendants’ August 3^rd CCP § 96 demand, Defendants argue Plaintiff obtained an unfair advantage and should be precluded from presenting any evidence. (Mot., p. 7.)

First, the Court notes that, pursuant to Civil Code section 599, “a continuance or postponement of a trial date extends any deadlines that have not already passed as of March 19, 2020, applicable to discovery…for the same length as the continuance or postponement of the trial date.”

Because of this, Plaintiff’s July 31^st CCP § 96 demand was timely. At the time Plaintiff served its CCP § 96 request, the trial was scheduled for September 1, 2020. Thus, a CCP § 96 demand could be served no earlier than July 18, 2020 and no later than August 2, 2020. However, because Defendants served their CCP § 96 demand on August 3^rd, it was untimely. Plaintiff had no obligation to respond to the untimely request. The trial was thereafter continued to April 21, 2021.

As the trial is currently scheduled for April 21, 2021, a CCP § 96 demand must be served no earlier than March 7, and no later than March 22. The Court is not persuaded that Plaintiff obtained an unfair advantage not only because their first request was timely, but also because Defendants still have an opportunity to obtain this information by serving a timely CCP § 96 request. Thus, Defendants’ request to bar Plaintiff from introducing any evidence is DENIED.

Similarly, because Defendants still have an opportunity to serve a timely demand by virtue of the automatic discovery extensions provided by Section 599, Defendants’ request to relieve them of their untimely August 3^rd CCP § 96 demand is DENIED.

1. Conclusion & Order

For the foregoing reasons, Defendants Mark Kreher and Mary Marlow’s (1) Motion Seeking to Bar Plaintiff from Offering Evidence for Failure to Comply with CCP 96 and (2) Motion Seeking Relief Under CCP 473 Regarding Late Service of CCP 96 Demand for Evidence are DENIED.

Moving party is ordered to give notice.

Case Number: 18STLC13524    Hearing Date: February 11, 2021    Dept: 25

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Case Number: 18STLC15240    Hearing Date: February 11, 2021    Dept: 25

HEARING DATE: Thu., February 11, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Macias v. Shreeji Laundry, Inc. COMPL. FILED: 12-26-18

CASE NUMBER: 18STLC15240 DISC. C/O: 03-29-21

PROCEEDINGS: MOTION TO DISMISS COMPLAINT FOR PLAINTIFF'S DISOBEYANCE OF COURT DISCOVERY ORDER

MOVING PARTY: Defendant Shreeji Laundry, Inc.

RESP. PARTY: None

MOTION FOR TERMINATING SANCTIONS

(CCP § 2023.030)

TENTATIVE RULING:

Defendant Shreeji Laundry, Inc.’s unopposed Motion to Dismiss Complaint for Plaintiff’s Disobeyance of Court Discovery Order is GRANTED. This action against Defendant Shreeji Laundry, Inc. is DISMISSED.

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: None filed as of February 9, 2021 [ ] Late [X] None

REPLY: None filed as of February 9, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On December 26, 2018, Plaintiff Alice Macias (“Plaintiff”) filed an action for premises liability against Defendant Shreeji Laundry, Inc. (“Defendant”). Defendant filed an Answer on April 2, 2019.

On July 28, 2020, Defendant filed the instant Motion to Dismiss Complaint for Plaintiff’s Disobeyance of Court Discovery Order (the “Motion”). To date, no opposition has been filed.

1. Legal Standard

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subd. (g), 2025.450, subd. (h); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) An evidence sanction prohibits a party that misused the discovery process from introducing evidence on certain designated matters into evidence. (Code Civ. Proc., § 2023.030, subd. (c).) 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:

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

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

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

(4) An order rendering a judgment by default against that party.

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

1. Discussion

Defendant seeks an order dismissing the action as a result of Plaintiff’s failure to comply with the Court’s orders and failure to appear for deposition. (Mot., p. 4:3-5.)

On July 15, 2019, Defendant filed motions to compel Plaintiff’s responses to special interrogatories, form interrogatories, and requests for production. Plaintiff’s counsel filed a declaration in opposition, stating that as of October 10, 2019, he had not received any cooperation from Plaintiff to respond to the discovery sought by Defendant. (10/10/19 Yeager Decl.) The Court granted Defendant’s motions on October 21, 2019. (10/21/19 Minute Order.) Plaintiff was ordered to serve verified responses without objections to the interrogatories and request for production of documents within twenty (20) days. (Id.) Plaintiff was also ordered to pay Defendant sanctions of $780.00 within thirty (30) days. (Id.) Defendant served Plaintiff with a notice of this ruling on October 22, 2019 via regular mail. (Mot., Phelan Decl., ¶ 2, Exh. A.) Despite the Court’s order, Plaintiff has not provided any responses or paid the court-ordered sanctions. (Id. at ¶ 4.)

Defendant’s counsel also states that her office served a Notice of Deposition on September 26, 2019 scheduling Plaintiff’s deposition for December 2, 2019. (Id. at ¶ 3.) Pursuant to Plaintiff’s counsel’s request, the deposition was continued to December 30, 2019. (Id.) On December 26, 2019, Plaintiff’s counsel notified Defendant’s counsel his office had lost contact with Plaintiff. (Id., Exh. B.) Plaintiff did not appear for the December 30, 2019 deposition and Defendant’s counsel obtained a certificate of non-appearance. (Id., Exh. C.)

Notably, Plaintiff was properly served with this Motion but did not oppose it. It appears that Plaintiff is no longer interested in prosecuting her claim.

Based on the above, the Court finds terminating sanctions are warranted. Although terminating sanctions are a harsh penalty, the evidence above demonstrates that Plaintiff’s compliance with the Court’s orders cannot be achieved through lesser means. Thus, the action is DISMISSED.

1. Conclusion & Order

For the foregoing reasons, Defendant Shreeji Laundry, Inc.’s unopposed Motion to Dismiss Complaint for Plaintiff’s Disobeyance of Court Discovery Order is GRANTED. This action against Defendant Shreej Laundry, Inc. is DISMISSED.

Moving party is ordered to give notice.

Case Number: 18STLC13524    Hearing Date: February 10, 2021    Dept: 25

HEARING DATE: Wed., February 10, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Ickovitz v. Kreher, et al. COMPL. FILED: 11-05-18

CASE NUMBER: 18STLC13524 DISC. C/O: 03-22-21

PROCEEDINGS: MOTION SEEKING A PROTECTIVE ORDER AND REQUEST FOR JUDICIAL NOTICE

MOVING PARTY: Defendants Mark Kreher and Mary Marlow

RESP. PARTY: Plaintiff Judith A. Ickovitz

MOTION FOR PROTECTIVE ORDER

(CCP § 2025.420(b))

TENTATIVE RULING:

Defendants Mark Kreher and Mary Marlow’s Motion Seeking a Protective Order is DENIED. Plaintiff’s request for sanctions is GRANTED in the amount of $800.00 to be paid to Plaintiff’s counsel 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 January 28, 2021 [ ] Late [ ] None

REPLY: Filed on February 3, 2021 [ ] Late [ ] None

ANALYSIS:

1. Background

On November 5, 2018, Plaintiff Judith Audrey Ickovitz (“Plaintiff”) filed an action against Defendants Mark Kreher (“Kreher”) and Mary Marlow (“Marlow”) (collectively, “Defendants”). Defendants filed a joint Answer on May 23, 2019.

A non-jury trial was initially set for May 4, 2020. However, on March 23, 2020, the Court, on its own motion, continued the trial to September 1, 2020. (3/27/20 Notice re Continuance of Hearing and Order.) On August 24, 2020, the Court again continued the trial and is now scheduled for April 21, 2021. (8/24/20 Notice re Continuance of Hearing and Order.)

On August 6, 2020, Defendants filed the instant Motion Seeking a Protective Order (the “Motion”) and Request for Judicial Notice (“RJN”). Plaintiff filed an Opposition on January 28, 2021, and Defendants filed a Reply on February 3.

1. Request for Judicial Notice

Defendants’ request for judicial notice of the entire file is GRANTED. (Evid. Code, § 452, subd. (b).) However, the request for judicial notice as to the “commonly known and indisputable fact that bougainvillea plants are thorny” is DENIED as it is not relevant to the instant Motion. Only relevant matters are judicially noticeable. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569 (citing Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds).)

1. Legal Standard & Discussion

In her Complaint, Plaintiff alleges that on August 3, 2017, Defendants’ gardener, acting on behalf of and pursuant to Defendants’ instructions, cut down a majority of Plaintiff’s Bougainvillea plant located on Plaintiff’s property, such that it was “stripped of most of its foliage and consisted of mostly bare sticks protruding from the ground.” (Compl., ¶ 11.) As a result, Plaintiff alleges causes of action for trespass, private nuisance, negligence, and injury to real property. (Id., ¶¶ 8-27.)

Defendants seek an order preventing Plaintiff from taking Defendant Kreher’s deposition or, in the alternative, an order (1) excluding any inquiry as it pertains to punitive damages and Plaintiff’s on-going battle with the City of Santa Monica about zoning violations and (2) limiting the scope of the deposition to Plaintiff’s bougainvillea plant in question. (Mot., p. 2:1-12.)

Discovery is limited to any matter, not privileged, that is relevant to the subject matter of the pending action. (Code Civ. Proc., § 2017.010.) Code of Civil Procedure section 2025.420 provides, in relevant part:

“(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense….”

A party seeking a protective order must show good cause for issuance of the order by a preponderance of the evidence. (Stadish v. Sup. Ct. (Southern Calif. Gas Co.) (1999) 71 Cal.App.4th 1130, 1145.) Sanctions are mandatory against the losing party on a motion for protective order unless it finds that the party made or opposed the motion with “substantial justification” or other circumstances make the sanction “unjust.” (Code Civ. Proc., § 2025.420, subd. (h).)

The Motion is accompanied by a meet and confer declaration. (Mot., Kahn Decl., ¶ 8.) Defendants present several arguments in support of their position, none of which are persuasive.

First, Defendants argue Plaintiff’s action is suspect because she waited two months to bring the matter to Defendants’ attention, waited fifteen months before filing the instant action, and then delayed another 20 months before prosecuting this action. (Mot., p. 8:3-8.) However, Defendants cite no authority for the proposition that a plaintiff’s right to certain types of discovery should be curtailed merely because that plaintiff did not immediately file an action after he or she suffered an injury.

Defendants also argue that, if left unrestricted, depositions are time-consuming and costly for both parties and that a remote deposition requiring the parties to be at different locations will be unnecessarily complicated. (Mot., p. 9:13-17.) However, this isn’t a situation where Plaintiff is seeking multiple depositions – Plaintiff is seeking only to depose Defendant Kreher. In addition, Defendants provide no explanation or evidence regarding the difficulties conducting a remote deposition would entail. Indeed, as a result of the COVI-19 pandemic, remote depositions are now available at either party’s election pursuant to Code of Civil Procedure section 2025.310.

Defendants further argue that Plaintiff’s improper purpose is evidenced by her “insistence on taking a deposition instead of accepting Defendants’ accommodation of re-opening discovery despite its cut-off.” (Mot., p. 9:2-4.) The general rule is that discovery is cut off 30 days before the date initially set for trial, and a continuance or postponement of the initial trial date does not operate to reopen discovery proceedings. (Code Civ. Proc., § 2024.020.) However, in light of the COVID-19 pandemic and effective September 18, 2020, Code of Civil Procedure section 599 provides for the automatic extensions for trial dates continued or postponed beginning March 19, 2020. (Code Civ. Proc., § 599.) Thus, the discovery cut-off in this action is not until March 22, 2021.

In addition, Defendants argue Plaintiff should not be entitled to conduct a deposition because she presumably already has all the information she needs to proceed to trial. (Mot., pp. 9:27-10:6.) However, Defendants’ opinion regarding the sufficiency of Plaintiff’s evidence does not dictate Plaintiff’s discovery rights. Code of Civil Procedure section 94, subdivision (b), expressly allows one oral deposition in limited jurisdiction cases, in addition to written discovery. Here, it appears Plaintiff has not yet conducted any discovery and Defendants’ preference for written discovery is not a sufficient reason to preclude Defendant Kreher’s deposition.

Defendants appear to argue that the deposition is improper because Plaintiff will seek information pertinent to her request for punitive damages. (Mot., pp. 7:26-8:2.) However, discovery to reveal financial information when relevant to a claim for punitive damages is permitted. (See Richards v. Superior Court (1978) 86 Cal.App.3d 265, 272.) A protective order may be sought where a deponent seeks to ensure any financial information sought and obtained is only used for purposes of the lawsuit. (Id.) Here, Defendants seek a protective order preventing Plaintiff from asking any question that relate to punitive damages altogether but have not cited any legal authority demonstrating Plaintiff may not use discovery tools to obtain this information.

Finally, Defendants argue the main purpose of this deposition is harassment because it is unnecessary. (Mot., p. 8:14-17.) However, Defendants have not demonstrated Defendant Kreher’s deposition is unnecessary or that this deposition would amount to harassment. Thus, the Court finds Defendants have not demonstrated good cause exists for an order precluding Defendant Kreher’s deposition or for an order limiting the scope of the deposition.

As Defendants have not demonstrated good cause for a protective order, the Motion is DENIED. Because the Motion is denied, sanctions are mandatory against Defendants under Code of Civil Procedure section 2025.420, subdivision (h). Plaintiff’s counsel requests $800.00 in sanctions based on two hours of attorney time billed at $400.00 per hour. (Oppo., Nitti Decl., ¶ 2.) The Court finds this request reasonable. Sanctions are to be paid to Plaintiff’s counsel within thirty (30) days of notice of this order.

1. Conclusion & Order

For the foregoing reasons, Defendants Mark Kreher and Mary Marlow’s Motion Seeking a Protective Order is DENIED. Plaintiff’s request for sanctions is GRANTED in the amount of $800.00 to be paid to Plaintiff’s counsel within thirty (30) days of notice of this order.

Moving party is ordered to give notice.