KATHLEEN OVANDO, ET AL. VS GABRIELLA JEFFERSON

Tentative Rulings

Case Number: 19STLC09808    Hearing Date: April 26, 2021    Dept: 25

HEARING DATE: Mon., April 26, 2021 JUDGE /DEPT: Chilton/25

CASE NAME: Ovando, et al. v. Jefferson COMPL. FILED: 10-23-19

CASE NUMBER: 19STLC09808 DISC. C/O: 06-21-21

PROCEEDINGS: MOTION FOR ORDER DISMISSING THE ACTION OF PLAINTIFF AND FOR AN ORDER IMPOSING MONETARY SANCTIONS

MOVING PARTY: Defendant Gabriella Jefferson

RESP. PARTY: None

MOTION FOR TERMINATING SANCTIONS

(CCP § 2023.030)

TENTATIVE RULING:

Defendant Gabriella Jefferson’s Motion for Order Dismissing the Action of Plaintiff is GRANTED. This action against Defendant Gabriella Jefferson 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 April 21, 2021 [ ] Late [X] None

REPLY: None filed as of April 21, 2021 [ ] Late [X] None

ANALYSIS:

I. Background

On October 23, 2019, Plaintiffs Kathleen Ovando (“Ovando”) and Claudia Garcia (“Garcia”) (collectively, “Plaintiffs”) filed an action for motor vehicle negligence against Defendant Gabriella Jefferson (“Defendant”). Defendant filed an Answer on December 6, 2019, and an Amended Answer pursuant to the parties’ stipulation on May 22, 2020.

Plaintiff Ovando was dismissed from this action without prejudice on February 26, 2020.

On May 27, 2020, Defendant filed (1) a motion for order compelling Plaintiff Garcia’s verified responses to Demand for Inspection and Production of Documents, Set One, and (2) motion for order compelling Plaintiff Garcia’s verified responses to Form Interrogatories, Set One. On September 24, 2020, the discovery motions were granted and Plaintiff Garcia was ordered to serve verified responses without objections within thirty days. (9/24/20 Minute Order.)

Defendant filed the instant Motion for Order Dismissing the Action and for an Order Imposing Monetary Sanctions (the “Motion”) on January 27, 2021. No opposition was filed.

II. 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).)

III. Discussion

Defendant seeks a terminating sanction due to Plaintiff Garcia’s failure to comply with a court order. (Mot., p. 2.)

As discussed above, Defendant filed two discovery motions on May 27, 2020. Plaintiff Garcia did not oppose the motions and did not appear at the September 24, 2020 hearing. (9/24/20 Minute Order.) The Court granted Defendant’s two discovery motions and ordered Plaintiff Garcia to serve verified responses and to pay sanctions of $422.50 within thirty days. (Id.) Defendant presents evidence that she served Plaintiff Garcia with a copy of the September 24 order on September 25 via email. (Mot., Lee Decl., ¶ 3, Exh. A.) As of the date this Motion was filed, Defendant had not received any discovery responses or payment of sanctions. (Id. at ¶ 4.)

Defendant argues that Plaintiff Garcia’s failure to comply with the Court’s discovery order has deprived her of the ability to adequately prepare for trial. (Mot., p. 4:5-24.) As such, Defendant argues, a terminating sanction is appropriate. (Id.) Notably, Plaintiff Garcia was properly served with this Motion but did not oppose it. Indeed, it appears that Plaintiff Garcia 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 Garcia’s compliance with the Court’s orders cannot be achieved through lesser means. However, the Court declines to award monetary sanctions as such an order would be futile.

Thus, the action is DISMISSED.

IV. Conclusion & Order

For the foregoing reasons, Defendant Gabriella Jefferson’s Motion for Order Dismissing the Action of Plaintiff is GRANTED. This action against Defendant Gabriella Jefferson is DISMISSED.

Moving party is ordered to give notice.

Case Number: 19STLC09808    Hearing Date: March 04, 2021    Dept: 25

---

Case Number: 20STCP03569    Hearing Date: March 04, 2021    Dept: 25

HEARING DATE: Thu., March 4, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Directors Guild of America, Inc. v. American Dresser Productions NY, Inc.

PROCEEDINGS: PETITION FOR CONFIRMATION OF ARBITRATION AWARD AND FOR ENTRY OF JUDGMENT IN CONFORMITY THEREWITH

MOVING PARTY: Petitioner Director’s Guild of America, Inc.

RESP. PARTY: None

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285, et seq.)

TENTATIVE RULING:

Petitioner Director’s Guild of America, Inc.’s Petition for Confirmation of Arbitration Award and For Entry of Judgment in Conformity Therewith is GRANTED. Proposed judgment is to be filed within ten (10) days 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: None filed as of March 2, 2021 [ ] Late [X] None

REPLY: None filed as of March 2, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On September 10, 2020, Arbitrator Mark Burstein (the “Arbitrator”) with the Director’s Guild of America-Producers Tribunal rendered an award requiring Respondent American Dresser Productions, NY, Inc. (“Respondent”) to pay Petitioner Directors Guild of America, Inc. (“Petitioner”) residuals of $4,913.31, late charges of $476.37 as of September 10, 2020, an additional late charge of $1.62 per day until the residuals are paid in full, and Arbitrator fees of $416.67 (the “Award”). (Pet., Exh. B.) The Award also provides that Petitioner is entitled to receive, subject to any prior perfected security interest, all of Respondent’s accounts receivable from the worldwide exploitation, distribution, exhibition, or other use of the theatrical motion picture entitled “American Dresser” until the amount owed to Petition is satisfied in full. (Id.)

Petitioner filed the instant Petition for Confirmation of Arbitration Award and For Entry of Judgment in Conformity Therewith (the “Petition”) on October 29, 2020. No opposition has been filed.

1. Legal Standard

“Regardless of the particular relief granted, any arbitrator’s award is enforceable only when confirmed as a judgment of the superior court.” (O’Hare v. Municipal Resource Consultants (2003) 107 Cal.App.4th 267, 278.) “Once a petition to confirm an award is filed, the superior court must select one of only four courses of action: it may confirm the award, correct and confirm it, vacate it, or dismiss the petition.” (EHM Productions, Inc. v. Starline Tours of Hollywood, Inc. (2018) 21 Cal.App.5th 1058, 1063.) “It is well settled that the scope of judicial review of arbitration awards is extremely narrow.” (California Faculty Assn. v. Superior Court (1998) 63 Cal.App.4th 935, 943.) “Neither the trial court, nor the appellate court, may ‘review the merits of the dispute, the sufficiency of the evidence, or the arbitrator’s reasoning, nor may we correct or review an award because of an arbitrator’s legal or factual error, even if it appears on the award’s face.” (EHM Productions, supra, at p. 1063-64.)

1. Discussion

A. Filing Requirements (Code Civ. Proc., § 1285.4)

Code of Civil Procedure, section 1285.4 states: “A petition under this chapter shall:

1. Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement.

2. Set forth the names of the arbitrators.

(c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.”

Petitioner has set forth the substance of the parties’ agreement to arbitrate and submitted a copy of the Arbitration Award, which includes the name of the neutral Arbitrator. (Pet., Exh. B.) Thus, Petitioner has satisfied the filing requirements of Section 1285.4.

B. Service of the Arbitration Award & Timeliness of Petition (CCP §§ 1283.6, 1288, 1288.4)

Code of Civil Procedure section 1283.6 provides that: “The neutral arbitrator shall serve a signed copy of the award on each party to the arbitration personally or by registered or certified mail or as provided in the agreement.” (Emphasis added.) Here, the neutral Arbitrator served both parties with a copy of the Arbitration Award via email and certified mail, return receipt requested, on September 28, 2020. (Pet., Exh, B.)

In addition, a party may seek a court judgment confirming an arbitration award by filing and serving a petition no more than four years, but not less than 10 days, after the award is served. (Code Civ. Proc., §§ 1288, 1288.4.) (Italics added.) Here, the parties were initially served with the Award on September 28, 2020, and this Petition was filed more than 10 days later, on October 29, 2020.

Thus, Petitioner has satisfied the requirements of Sections 1283.6, 1288, and 1288.4.

C. Service of the Petition, and Notice of Hearing (Code Civ. Proc., §1290.4.)

Code of Civil Procedure, section 1290.4 states, in pertinent part:

“(a) A copy of the petition and a written notice of the time and place of the hearing thereof and any other papers upon which the petition is based shall be served in the manner provided in the arbitration agreement for the service of such petition and notice.

(b) If the arbitration agreement does not provide the manner in which such service shall be made and the person upon whom service is to be made has not previously appeared in the proceeding and has not previously been served in accordance with this subdivision: ¶ (1) Service within this State shall be made in the manner provided by law for the service of summons in an action.

Here, the parties' agreement to arbitrate, provides that a petition to confirm an arbitration award may be served by certified or registered mail, return receipt requested. (Pet., Exh. B, ¶ 2-603, subd. (b).) The agreement also provides that when a party’s address is not known, notices may be sent to Alliance of Motion Picture & Television Producers, Inc. at 15301 Ventura Blvd., Building E, Sherman Oaks, CA 91403 (“Alliance”). (Id. at ¶ 17-213.)

Petitioner filed a proof of service demonstrating Respondent was served at three addresses, including the Alliance address, on October 29, 2020 via email and certified mail, return receipt requested. (Pet., Proof of Service.) Thus, the service requirements for the Petition itself have been satisfied.

1. Conclusion & Order

For the foregoing reasons, Petitioner Director’s Guild of America, Inc.’s Petition for Confirmation of Arbitration Award and For Entry of Judgment in Conformity Therewith is GRANTED. Proposed judgment is to be filed within ten (10) days of this order.

Moving party is ordered to give notice.

Case Number: 19STLC09808    Hearing Date: September 24, 2020    Dept: 25

HEARING DATE: Thu., September 24, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Ovando et al. v. Jefferson COMPL. FILED: 10-23-19

CASE NUMBER: 19STLC09808 DISC. C/O: 03-22-21

PROCEEDINGS: (1) MOTION FOR ORDER COMPELLING PLAINTIFF CLAUDIA GARCIA’S VERIFIED RESPONSES TO FORM INTERROGATORIES, SET ONE, AND FOR MONETARY SANCTIONS

(2) MOTION FOR ORDER COMPELLING PLAINTIFF CLAUDIA GARCIA’S VERIFIED RESPONSES TO DEMAND FOR PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS

MOVING PARTY: Defendant Gabriella Jefferson

RESP. PARTY: None

MOTION TO COMPEL RESPONSES TO INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS; REQUEST FOR MONETARY SANCTIONS

(CCP §§ 2030.290; 2031.300)

TENTATIVE RULING:

Defendant Gabriella Jefferson’s (1) Motion for Order Compelling Plaintiff Garcia’s Verified Responses to Form Interrogatories, Set One and (2) Motion for Order Compelling Plaintiff Garcia’s Verified Responses to Demand for Production of Documents, Set One, are GRANTED. Plaintiff Garcia is ordered to provide verified responses to Defendant’s discovery requests within thirty (30) days of service of this order.

Defendant’s request for sanctions is also GRANTED in the amount of $501.50 to be paid by Plaintiff Garcia to Defendant’s counsel within thirty (30) days of service 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: None filed as of September 22, 2020 [ ] Late [ ] None

REPLY: None filed as of September 22, 2020 [ ] Late [ ] None

ANALYSIS:

1. Background

On October 23, 2019, Plaintiffs Kathleen Ovando (“Ovando”) and Claudia Garcia (“Garcia”) (collectively, “Plaintiffs”) filed this action for motor vehicle negligence against Defendant Gabriella Jefferson (“Defendant”).

On December 6, 2019, Defendant filed an Answer. Plaintiff Ovando was dismissed from this action on February 28, 2020. An amended Answer was filed pursuant to the parties’ stipulation on May 22, 2020. (4/14/20 Stipulation to Amend Answer; 5/22/20 Amended Answer.)

On May 27, 2020, Defendant filed the instant (1) Motion for Order Compelling Plaintiff Claudia Garcia’s Verified Responses to Form Interrogatories, Set One, and Request for Sanctions (the “Interrogatories Motion”) and (2) Motion for Order Compelling Plaintiff Claudia Garcia’s Verified Responses to Demand for Inspection and Production of Documents, Set One, and Request for Sanctions (the “Production Motion”) (collectively, the “Discovery Motions”).

On August 7, 2020, the Court scheduled the Discovery Motions for hearing for September 24, 2020 at 10:00 a.m. (8/7/20 Minute Order.) That same day, Defendant gave Plaintiff notice of the scheduled hearing via email.

To date, no oppositions have been filed.

1. Legal Standard & Discussion

A. Interrogatories & Request for Production of Documents

A party must respond to interrogatories and requests for production of documents within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a); Code Civ. Proc., § 2031.260, subd. (a).) If a party to whom interrogatories or requests for production of documents are directed does not provide timely responses, the requesting party may move for an order compelling responses to the discovery. (Code Civ. Proc., § 2030.290, subd. (b); Code Civ. Proc., § 2031.300, subd. (c).) The party also waives the right to make any objections, including one based on privilege or work-product protection. (Code Civ. Proc., § 2030.290, subd. (a); Code Civ. Proc., § 2031.300, subd. (a).) There is no time limit for a motion to compel responses to interrogatories or production of documents other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc., §§ 2024.020, subd. (a), 2030.290; Code Civ. Proc., § 2031.300.) No meet and confer efforts are required before filing a motion to compel responses to the discovery. (Code Civ. Proc., § 2030.290; Code Civ. Proc., § 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.)

Here, Defendant served Plaintiff Garcia with Form Interrogatories, Set One, and Demand for Inspection and Production of Documents, Set One, on December 9, 2019. (Interrogatories Mot. & Production Mot., Lee Decl., ¶¶ 2, Exhs. A.) Due to Plaintiff’s counsel’s difficulty in locating Plaintiff Garcia, Defendant’s counsel granted Plaintiff’s counsel extensions on January 1, 2020, February 5, 2020, and March 2, 2020, to provide discovery responses. (Interrogatories Mot., Lee Decl., ¶¶ 3-5, Exhs. B-D; Production Mot., Lee Decl., ¶¶ 4-6, Exhs. B-D.) On April 1, 2020, Defendant’s counsel sent Plaintiff Garcia’s counsel a letter stating that if no responses were received by April 17, 2020, judicial intervention and sanctions would be sought. (Interrogatories Mot., Lee Decl., ¶ 8, Exh. F; Production Mot., Lee Decl., ¶ 9, Exh. F.) The following day, Plaintiff Garcia’s counsel responded to Defendant’s counsel’s correspondence stating that despite his extensive efforts, Plaintiff Garcia refused to cooperate and remained incommunicado. (Interrogatories Mot., Lee Decl., ¶ 9, Exh. G; Production Mot., Lee Decl., ¶ 10, Exh. G.) As of the date of these Discovery Motions, Plaintiff Garcia has not provided any responses to the discovery requests. (Interrogatories Mot., Lee Decl., ¶ 10; Production Mot., Lee Decl., ¶ 11.) Thus, Defendant is entitled to an order compelling Plaintiff Garcia to provide verified responses without objections. (Code Civ. Proc., §§ 2030.290, 2031.300.)

B. Sanctions

Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. A misuse of the discovery process includes failing to respond or submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).)

The Court finds Plaintiff Garcia’s failure to respond to Defendant’s discovery requests a misuse of the discovery process.

Defendant’s counsel requests a total of $1,170.50 in sanctions based on 6 hours of attorney time billed at $143.75 per hour, two remote appearance fees of $94.00, and two filing fees of $60.00. (Interrogatories Mot., Lee Decl., ¶ 11; Production Mot., Lee Decl., ¶ 12.) However, the amount sought is excessive given the simplicity of these nearly identical Motions and the lack of opposition and reply. The Court finds $501.50, based on two hours of attorney time, one remote appearance fee, and two filing fees, reasonable. Plaintiff Garcia is ordered to pay sanctions within thirty (30) days of notice of this order.

1. Conclusion & Order

For the foregoing reasons, Defendant Gabriella Jefferson’s (1) Motion for Order Compelling Plaintiff Garcia’s Verified Responses to Form Interrogatories, Set One and (2) Motion for Order Compelling Plaintiff Garcia’s Verified Responses to Demand for Production of Documents, Set One, are GRANTED. Plaintiff Garcia is ordered to provide verified responses to Defendant’s discovery requests within thirty (30) days of service of this order.

Defendant’s request for sanctions is also GRANTED in the amount of $501.50 to be paid by Plaintiff Garcia to Defendant’s counsel within thirty (30) days of service of this order.

Moving party is ordered to give notice.