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This case was last updated from Los Angeles County Superior Courts on 07/01/2019 at 04:18:05 (UTC).

CESAR ROMERO ET AL VS BROCCA CUSTOM FINISHING CARPENTRY INC

Case Summary

On 08/05/2015 CESAR ROMERO filed a Contract - Other Contract lawsuit against BROCCA CUSTOM FINISHING CARPENTRY INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MICHAEL JOHNSON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0284

  • Filing Date:

    08/05/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MICHAEL JOHNSON

 

Party Details

Plaintiffs and Petitioners

ROMERO CESAR

ROMERO TATIANA S.

ROMERO TATIANA S

Defendants and Respondents

BROCCA AIDA

BROCCA CUSTOM FINISHING CARPENTRY INC

BROCCA DANIEL V

DOES 1-50

GUZMAN JERRY

TBD CLAUDIO

BROCCA VICTOR DANIEL DBA BROCCA CUSTOM FINISH CARPENTRY

BROCCA CUSTOM FINISHING CARPENTRY INC.

BROCCA DANIEL V.

FLORENCIA-ZANI IDA ARGENTINA

CRUZ CLAUDIO

BROCCA IDA

Attorney/Law Firm Details

Plaintiff Attorney

BUILDERS LAW GROUP INC.

Defendant and Respondent Attorneys

ROSSELL WHITE LLP

ROSSELL CRAIG N.

 

Court Documents

BROCCA'S SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED FACTS IN OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION ON FIRST AND FIFTH CAUSES OF ACTION ON SECOND AMENDED COMPLAINT

2/5/2018: BROCCA'S SEPARATE STATEMENT OF UNDISPUTED AND DISPUTED FACTS IN OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION ON FIRST AND FIFTH CAUSES OF ACTION ON SECOND AMENDED COMPLAINT

EX PARTE APPLICATION BY THE BROCCA DEFENDANTS FOR (1) ORDER THAT THEIR EXPERT WITNESS DECLARATION WAS TIMELY AND IS VALID OR FOR LEAVE TO SERVE UNTIMELY EXPERT WITNESS DECLARATION; ETC.

3/7/2018: EX PARTE APPLICATION BY THE BROCCA DEFENDANTS FOR (1) ORDER THAT THEIR EXPERT WITNESS DECLARATION WAS TIMELY AND IS VALID OR FOR LEAVE TO SERVE UNTIMELY EXPERT WITNESS DECLARATION; ETC.

PLAINTIFFS' WITNESS LIST

3/28/2018: PLAINTIFFS' WITNESS LIST

PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIMINE NUMBER 2 OF 3 TO EXCLUDE THE TESTIMONY OF CERTAIN DEFENSE WITNESSES OR, IN THE ALTERNATIVE, LIMIT THE WITNESS TESTIMONY; ETC

5/15/2018: PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIMINE NUMBER 2 OF 3 TO EXCLUDE THE TESTIMONY OF CERTAIN DEFENSE WITNESSES OR, IN THE ALTERNATIVE, LIMIT THE WITNESS TESTIMONY; ETC

JOINT STATEMENT OF THE CASE TO BE READ TO THE JURY

7/20/2018: JOINT STATEMENT OF THE CASE TO BE READ TO THE JURY

Notice of Ruling

4/5/2019: Notice of Ruling

Opposition

6/24/2019: Opposition

NOTICE OF MOTION AND MOTION TO STRIKE BY DEFENDANT BROCCA CUSTOM FINISH CARPENTRY, INC.; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT [CCP 435, 436]

10/16/2015: NOTICE OF MOTION AND MOTION TO STRIKE BY DEFENDANT BROCCA CUSTOM FINISH CARPENTRY, INC.; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT [CCP 435, 436]

DEMURRER OF DEFENDANT BROCCA CUSTOM FINISH CARPENTRY, INC. TO FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

12/8/2015: DEMURRER OF DEFENDANT BROCCA CUSTOM FINISH CARPENTRY, INC. TO FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO QUASH SERVICE OF SUMMONS AS TO NAMED DEFENDANTS DANIEL BROCCA, AIDA BROCCA AND JERRY GUZMAN

3/3/2016: PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO QUASH SERVICE OF SUMMONS AS TO NAMED DEFENDANTS DANIEL BROCCA, AIDA BROCCA AND JERRY GUZMAN

PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR AN ORDER COMPELLING ANSWERS TO INTERROGATORIES AND FOR MONETARY SANCTIONS; ETC.

5/25/2016: PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR AN ORDER COMPELLING ANSWERS TO INTERROGATORIES AND FOR MONETARY SANCTIONS; ETC.

OPPOSITION OF DEFENDANTS DANIEL BROCCA, IDA BROCCA AND JERRY GUZMAN TO MOTION OF PLAINTIFFS CESAR AND TATIANA ROMERO TO COMPEL ANSWERS TO DISCOVERY REQUESTS; ETC

7/13/2016: OPPOSITION OF DEFENDANTS DANIEL BROCCA, IDA BROCCA AND JERRY GUZMAN TO MOTION OF PLAINTIFFS CESAR AND TATIANA ROMERO TO COMPEL ANSWERS TO DISCOVERY REQUESTS; ETC

NOTICE AND MOTION FOR DISCOVERY SANCTIONS AND OTHER APPROPRIATE RELIEF ETC.

9/6/2016: NOTICE AND MOTION FOR DISCOVERY SANCTIONS AND OTHER APPROPRIATE RELIEF ETC.

PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR AN ORDER COMPELLING FURTHER RESPONSES TO FORM INTERROGATORIES FOR DANIEL VICTOR BROCCA, AIDA BROCCA AND JERRY GUZMAN AND FOR MONETARY SANCTIONS; MEMORANDUM

10/20/2016: PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR AN ORDER COMPELLING FURTHER RESPONSES TO FORM INTERROGATORIES FOR DANIEL VICTOR BROCCA, AIDA BROCCA AND JERRY GUZMAN AND FOR MONETARY SANCTIONS; MEMORANDUM

PROOF OF PERSONAL SERVICE?CIVIL

11/18/2016: PROOF OF PERSONAL SERVICE?CIVIL

PLAINTIFFS' SEPARATELY BOUND EVIDENCE IN SUPPORT OF THEIR MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY, ETC. FROM DEFENDANT JERRY GUZMAN; ETC.

7/10/2017: PLAINTIFFS' SEPARATELY BOUND EVIDENCE IN SUPPORT OF THEIR MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY, ETC. FROM DEFENDANT JERRY GUZMAN; ETC.

RULING: SUMMARY JUDGMENT IS GRANTED

11/27/2017: RULING: SUMMARY JUDGMENT IS GRANTED

PLAINTIFFS? REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THEIR MOTION FOR SUMMARY ADJUDICATION AS TO THE FIRST AND FIFTH CAUSES OF ACTION IN THEIR SECOND AMENDED COMPLAINT

12/8/2017: PLAINTIFFS? REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THEIR MOTION FOR SUMMARY ADJUDICATION AS TO THE FIRST AND FIFTH CAUSES OF ACTION IN THEIR SECOND AMENDED COMPLAINT

269 More Documents Available

 

Docket Entries

  • 06/24/2019
  • Notice of No Opposition to Plaintiff's Additional Evidence; Filed by Cesar Romero (Plaintiff); Tatiana S. Romero (Plaintiff)

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  • 06/24/2019
  • Plaintiff's Continued Final Status Conference Statement; Filed by Cesar Romero (Plaintiff); Tatiana S. Romero (Plaintiff)

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  • 04/05/2019
  • Notice of Ruling (on motion to be relieved); Filed by Cesar Romero (Plaintiff); Tatiana S. Romero (Plaintiff)

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  • 04/03/2019
  • Notice of Ruling; Filed by Cesar Romero (Plaintiff); Tatiana S. Romero (Plaintiff)

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  • 04/02/2019
  • at 08:30 AM in Department 56; Hearing on Motion to be Relieved as Counsel - Held - Motion Granted

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  • 04/02/2019
  • at 08:30 AM in Department 56; Hearing on Motion to be Relieved as Counsel - Held - Motion Granted

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  • 04/02/2019
  • Minute Order ( (Hearing on Plaintiffs Counsel Motions to be Relieved as Counsel;)); Filed by Clerk

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  • 03/29/2019
  • at 08:30 AM in Department 56; Hearing on Motion to be Relieved as Counsel - Not Held - Rescheduled by Party

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  • 03/18/2019
  • Plaintiffs Cesar and Tatiana Romero's Response to Motion to be Relived Filed by Attorney Nick Campbell; Filed by Cesar Romero (Plaintiff); Tatiana S. Romero (Plaintiff)

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  • 03/05/2019
  • Proof of Service (not Summons and Complaint); Filed by Tatiana S. Romero (Plaintiff)

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564 More Docket Entries
  • 08/26/2015
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 08/26/2015
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 08/26/2015
  • Notice of Case Management Conference; Filed by Clerk

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  • 08/21/2015
  • Proof of Service (not Summons and Complaint); Filed by Cesar Romero (Plaintiff); Tatiana S. Romero (Plaintiff)

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  • 08/21/2015
  • PROOF OF SERVICE SUMMONS

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  • 08/21/2015
  • Proof of Service (not Summons and Complaint); Filed by Cesar Romero (Plaintiff); Tatiana S. Romero (Plaintiff)

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  • 08/21/2015
  • PROOF OF SERVICE SUMMONS

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  • 08/05/2015
  • SUMMONS

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  • 08/05/2015
  • Complaint; Filed by null

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  • 08/05/2015
  • COMPLAINT FOR DAMAGES BREACH OF CONTRACT NEGLIGENCE FRAUD CONSTRUCTIVE FRAUD

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Tentative Rulings

Case Number: BC590284    Hearing Date: April 30, 2021    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CESAR ROMERO, et al.,

Plaintiffs,

vs.

BROCCA CUSTOM FINISHING CARPENTRY, INC., et al.,

Defendants.

CASE NO.: BC590284

[TENTATIVE] ORDER RE: MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT

Date: April 30, 2021

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Plaintiffs Cesar Romero and Tatiana Romero

RESPONDING PARTIES: Defendants Daniel Brocca, Ida Brocca, and Jerry Guzman

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiffs filed a motion (the “Motion”) for an order granting Plaintiffs leave to file a Third Amended Complaint to conform to proof. A motion for leave to amend must be accompanied by a declaration specifying: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier under Cal. Rules of Court, Rule 3.1324(b). The declaration of Cesar Romero in support of the Motion does not specify: (1) why the amendment is necessary and proper; and (2) reasons why the request for amendment was not made earlier. Cal. Rules of Court, Rule 3.1324(b) does not distinguish between the declaration requirement for motions for leave to amend brought before or during trial[1].

DISCUSSION

Code Civ. Proc. §473 permits the trial court in its discretion to allow amendments to pleadings in the furtherance of justice. Code Civ. Proc. § 576 states that any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order. There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.) An application to amend a pleading is addressed to the trial judge’s sound discretion. (Id.) A judge may deny a motion for leave to amend where a plaintiff has been dilatory in seeking leave to amend and such delay has prejudiced defendant. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where amendment would: (1) cause a delay of trial; (2) increase preparation costs; (3) change the focus of the complaint; or (4) increase discovery burdens. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.)

The Court finds that Plaintiffs have been dilatory in seeking leave to amend given that the operative Second Amended Complaint (“SAC”) was filed on October 14, 2016 and Plaintiffs filed the Motion after the parties rested in a non-jury trial. The proposed Third Amended Complaint seeks additional forms of recovery and sets forth additional factual allegations. The proposed amendment would change the focus of the complaint. Plaintiffs waited over four years to bring the Motion from the time the SAC was filed and present no sufficient reason for the delay. The filing of the Third Amended Complaint would surely prejudice Defendants given that the parties have rested and closing argument briefs are due the same date as the hearing.

The Court therefore exercises its discretion and DENIES the Motion.

Moving parties are ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 30th day of April 2021

Hon. Holly J. Fujie

Judge of the Superior Court


[1] Non-jury trial has already concluded as both Plaintiffs and Defendants have rested. The closing argument briefs of Plaintiffs and Defendants are due by April 30, 2021.

Case Number: BC590284    Hearing Date: September 21, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CESAR ROMERO, et al.,

Plaintiffs,

vs.

BROCCA CUSTOM FINISHING CARPENTRY, INC., et al.,

Defendants.

CASE NO.: BC590284

[TENTATIVE] ORDER RE: MOTION FOR OSC RE: CONTEMPT FOR VIOLATIONS OF THE COURT’S ORDERS; ISSUE SANCTIONS AND/OR TERMINATING SANCTIONS; AND/OR FOR MONETARY SANCTIONS

Date: September 21, 2020

Time: 8:30 a.m.

Dept. 56

FSC: January 12, 2021

MOVING PARTIES: Plaintiffs Cesar Romero and Tatiana Romero

The Court has considered the moving papers. No opposition papers were filed. Any opposition papers were required to be filed and served at least nine court days prior to the hearing. (Code Civ. Proc. § 1005(b).)

BACKGROUND

Plaintiffs’ complaint arises from alleged wrongful actions taken in connection with a contract for carpentry services. On August 5, 2015, Plaintiffs filed a complaint against Defendants alleging causes of action for: (1) breach of contract; (2) negligence; (3) fraud; (4) constructive fraud; and (5) racketeer influenced and corrupt organizations (RICO) violations.

On November 3, 2015, Plaintiffs filed a First Amended Complaint (“FAC”) alleging causes of action for: (1) breach of contract; (2) negligence; (3) fraud; (4) constructive fraud; (5) emotional distress; and (6) breach of implied covenant of good faith and fair dealing.

On October 14, 2016, Plaintiffs filed the operative Second Amended Complaint (“SAC”) alleging causes of action for: (1) breach of contract; (2) negligence; (3) fraud; (4) constructive fraud; (5) recovery pursuant to California Business and Professions Code, Section 7031(b); (6) breach of implied warranty; and (7) negligent misrepresentation.

Plaintiffs filed a motion to disqualify Craig N. Rossell (“Rossell”) based various wrongful of Rossell such as: (1) his appearance in this action in court proceedings during a time in which he was unlicensed to practice law; (2) his violation of orders of this Court; and (3) his participation in witness tampering. On August 12, 2019, the Court granted Plaintiffs’ motion to disqualify Rossell as Defendants’ counsel because it was unopposed. The Court’s August 12, 2019 order stated that an OSC re: striking the answer/entry of default was scheduled for August 20, 2019.

On August 20, 2019, the Court issued a minute order in connection with an OSC re: striking the answer/entry of default. The Court’s August 20, 2019 minute order stated that: (1) a substitution of attorney form for Defendant Brocca Custom Finishing (“BCF”) was not filed; and (2) the Court ordered that the answer filed by BCF was stricken and default was entered as of August 20, 2019.

Defendants filed a motion to set aside: (1) the Court’s August 12, 2019 disqualification order with respect to Rossell; and (2) the Court’s order striking the answer of and entering default against any of the Individual Defendants—Ida Brocca, Victor Daniel Brocca, and Jerry Guzman—to the extent such defaults have been, or would be, entered. On December 4, 2019, the Court denied Defendants’ motion.

Plaintiffs filed a motion for sanctions against Rossell on the grounds, in part, that he: (1) engaged in bad faith and frivolous actions in order to cause unnecessary delays; and (2) offered defenses and legal contentions that were not supported by existing law and that any reasonable attorney would have known is completely devoid of merit. Plaintiffs sought sanctions in the amount of $87,714.88 against Rossell. Plaintiff’s motion for sanctions was unopposed. On December 4, 2019, the Court ruled on Plaintiffs’ motion for sanctions. The Court granted Plaintiffs’ motion for sanctions and ordered Rossell to pay sanctions in the amount of $17,542.98 within 120 days of the Court’s ruling.

On May 22, 2020, the Court issued an order scheduling a status conference for July 7, 2020 and such order required the parties and/or counsel to file a status report by July 2, 2020.

On June 12, 2020, Defendants Daniel Brocca, Ida Brocca, and Jerry Guzman filed a status conference report in response to the Court’s May 22, 2020 order. In part, the status conference report indicated that: (1) after more than a year of developing pre-trial documents, attorneys Nick Campbell (“Campbell”) and Rossell jointly signed off on all joint pre-trial documents, a joint statement of the case, a joint exhibit list, a joint witness list and, with the Court’s rulings on more than one occasion, a set of ready-to-go jury instructions; and (2) the Court must have a record of the instructions that were agreed, disagreed, or withdrawn by counsel. The status conference report also stated that the Court had Campbell maintain the Court’s trial notebook; however, when he withdrew from the case due to irreconcilable differences with Plaintiffs, he turned over his entire file to them including the trial notebook which contained the original signed joint trial documents. (Status Conference Report at Exhibit B.)

The Current Motion

Plaintiffs filed a motion for an order to show cause as to why Defendants should not be held in contempt for willfully and purposely disobeying this Court’s: (1) August 12, 2019 order; (2) August 20, 2019 order; and (3) December 4, 2019 order. Defendants also move for an OSC as to Defendants’ violation of California Court Local Rule 3.25. Plaintiffs’ motion is unopposed.

Plaintiffs’ motion is made on the grounds that Defendants willfully and blatantly violated this Court’s orders by: (1) refusing to provide their set of jury instructions, exhibit list, and witness list; and (2) continuously filing baseless and meritless “briefs” that are written by their now disqualified former attorney, Rossell.

Pursuant to their motion, Plaintiffs also request monetary, issue, and evidentiary sanctions. Plaintiffs’ notice of motion, however, is deficient and as such the Court will not award Plaintiffs any monetary, issue, or terminating sanctions. “A basic rule of law and motion practice is the notice of motion shall state in the opening paragraph the nature of the order being sought and the grounds for the issuance of such order.” (Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 207.) Here, Plaintiffs’ memorandum of points and authorities makes an argument for monetary, issue, and terminating sanctions. Plaintiffs’ notice of motion, in the opening paragraph, does not state that Plaintiffs are seeking: (1) monetary; (2) issue; or (3) terminating sanctions against Defendants. Due to the improper notice with respect to sanctions the Court will not grant Plaintiffs’ request for monetary, issue, or terminating sanctions, and the Court’s analysis below will not address such requests. Therefore, this Court’s ruling will only address Plaintiffs’ request for an OSC.

Preliminary Issue

One of the arguments raised in Plaintiffs’ motion is that Defendants violated the Court’s December 4, 2019 order by not providing joint jury instructions, exhibit lists, and witness lists. Based on the review of the electronic court file, there is no order dated December 4, 2019 with respect to jury instructions, exhibit lists, or witness lists. The only order issued on December 4, 2019 was the Court’s order with respect to Defendants’ motion to set aside and Plaintiffs’ motion for sanctions.

While Plaintiffs assert that on December 4, 2019 the Court informed Defendants: (1) to follow the procedures of this court; and (2) to meet and confer with Plaintiffs so that a joint set of trial documents could be ready and filed with the Court by the next FSC, Plaintiffs’ exhibits in support of their motion do not support his contention. Moreover, neither the August 12 nor August 20, 2019 orders reflect this contention that Plaintiffs advance.

Thus, the sole remaining ground for Plaintiffs’ motion is Rossell’s unauthorized practice of law in violation of the Court’s aforementioned orders.

JUDICIAL NOTICE

The Court GRANTS Plaintiffs’ request for judicial notice.

DISCUSSION

Contempt of the authority of a court includes the act of “[d]isobedience of any lawful judgment, order, or process of the court.” (Code Civ. Proc. § 1209(a)(5).) “[U]nlawful interference with the process or proceedings of a court” is also a contemptable action. (Code Civ. Proc. § 1209(a)(9).) When contempt is committed outside of the view and presence of the court “an affidavit shall be presented to the court or judge of the facts constituting the contempt.” (Code Civ. Proc. § 1211(a).) In support of a contempt request, a party must submit evidence showing: (1) the rendition of a valid order; (2) actual knowledge of the order; (3) the ability to comply with such order; and (4) willful disobedience. (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784.)

Here, the only declaration provided in support of Plaintiffs’ motion is the declaration of Cesar Romero (“Mr. Romero”). Mr. Romero’s declaration, however, does not state facts warranting the imposition of contempt. His declaration only sets forth the cost and fees incurred in this action with respect to various tasks. Moreover, Plaintiffs’ exhibits in support of their motion for contempt do not establish the Conn factors.

Additionally, even if the Court made an order with respect to Defendants providing trial-related documents, the Court finds that Defendants would not have violated such order had they not provided such documents at this point in time. This Court’s instructions which are attached as Plaintiffs’ RJN Exhibit 1 states that: (1) meet and confer is required prior to the FSC with respect to the preparation of joint documents; and (2) the parties are ordered to review all exhibits prior to the FSC. (RJN, Exhibit 1 at p.3.) The FSC, however, is currently scheduled for January 12, 2021 and trial is not set to commence until January 26, 2021.

Moreover, with respect to Rossell disregarding the Court’s disqualification order, the Court finds based on a review of the pleadings filed by Defendants after the motion to disqualify counsel was granted, such pleadings were not filed improperly by Rossell on behalf of the individual Defendants.

Therefore, the Court DENIES Plaintiffs’ motion in its entirety.

Moving parties are ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 21st day of September 2020

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: BC590284    Hearing Date: August 14, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CESAR ROMERO, et al.,

Plaintiffs,

vs.

BROCCA CUSTOM FINISHING CARPENTRY, INC., et al.,

Defendants.

CASE NO.: BC590284

[TENTATIVE] ORDER RE: MOTION FOR JUDGMENT ON THE PLEADINGS

Date: August 14, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Plaintiffs Cesar Romero and Tatiana Romero

RESPONDING PARTIES: Defendants Daniel Brocca, Ida Brocca, and Jerry Guzman

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiffs’ complaint arises from alleged wrongful actions taken in connection with a contract for carpentry services. On August 5, 2015, Plaintiffs filed a complaint against Defendants alleging causes of action for: (1) breach of contract; (2) negligence; (3) fraud; (4) constructive fraud; and (5) racketeer influenced and corrupt organizations (RICO) violations.

On November 3, 2015, Plaintiffs filed a First Amended Complaint (“FAC”) alleging causes of action for: (1) breach of contract; (2) negligence; (3) fraud; (4) constructive fraud; (5) emotional distress; and (6) breach of implied covenant of good faith and fair dealing.

On April 5, 2016, Defendants filed and served their answer to the FAC setting forth the following affirmative defenses: (1) statute of limitations; (2) failure to state a cause of action; (3) Plaintiffs’ comparative fault; (4) failure to mitigate damages; (5) assumption of the risk; (6) consent and approval by Plaintiffs; (7) comparative fault of third parties; (8) apportionment of fault; (9) intervening or supervening cause; (10) superseding cause; (11) no claims against Individual Defendants; (12) observation of standard of care; (13) informed consent; (14) abandonment of design; (15) no damages; (16) no delay by Defendants; (17) unreasonable expectations; (18) allegations of the cross-complaint; (19) failure to meet conditions precedent; (20) material breach by Plaintiffs; (21) substantial performance by Defendants; (22) no modification; (23) no waiver; and (24) no special relationship.

On October 14, 2016, Plaintiffs filed the operative Second Amended Complaint (“SAC”) alleging causes of action for: (1) breach of contract; (2) negligence; (3) fraud; (4) constructive fraud; (5) recovery pursuant to California Business and Professions Code, Section 7031(b); (6) breach of implied warranty; and (7) negligent misrepresentation.

On November 3, 2016, Defendants filed and served their answer to the SAC setting forth the following affirmative defenses: (1) statute of limitations; (2) failure to state a cause of action; (3) Plaintiffs’ comparative fault; (4) failure to mitigate damages; (5) assumption of the risk; (6) consent and approval by Plaintiffs; (7) comparative fault of third parties; (8) apportionment of fault; (9) intervening or supervening cause; (10) superseding cause; (11) no claims against Individual Defendants; (12) observation of standard of care; (13) informed consent; (14) abandonment of design; (15) no damages; (16) no delay by Defendants; (17) unreasonable expectations; (18) allegations of the cross-complaint; (19) failure to meet conditions precedent; (20) material breach by Plaintiffs; (21) substantial performance by Defendants; (22) no modification; (23) no waiver; (24) no special relationship; (25) compliance with license law; (26) Individual Defendants not subject to license law; (27) lack of reasonable or legal cause to sue Individual Defendants; (28) vexatious litigation; (29) breach of duty of care by Plaintiffs; (30) no duty to perform; (31) no breach of warranty; (32) refusal to accept product; and (33) puffing.

The Current Motion

On June 16, 2020, Plaintiffs filed a motion for judgment on the pleadings. Plaintiffs move for judgment on the pleadings against Defendants as to Defendants’ entire answer with respect to the SAC and seek the entry of default judgment as to each of the Defendants. Plaintiffs’ motion is brought on the grounds that Defendants’ answer is defective as a matter of law because it contains 33 boilerplate conclusory affirmative defenses.

On June 19, 2020, the Court issued a minute order setting the hearing on Plaintiffs’ motion for judgment on the pleadings for August 14, 2020 at 8:30 a.m. in this department. Plaintiffs were ordered to give notice. A review of the electronic court file indicates that Plaintiffs did not give notice as ordered.

Defendants oppose Plaintiffs’ motion on the grounds that: (1) the notice of motion is defective; (2) no notice was given to Defendant Daniel Brocca based on the proof of service; (3) the meet and confer requirement was ignored; and (4) without prior leave, the motion is tardy.

JUDICIAL NOTICE

The Court GRANTS Plaintiffs’ request for judicial notice.

DISCUSSION

“A motion for judgment on the pleadings is subject to the same rules governing demurrers.” (Hardy v. America’s Best Home Loans (2014) 232 Cal.App.4th 795, 802.)

Issue No.1: Improper Notice

California Code of Civil Procedure, Section 1010 provides that “[n]otices must be in writing, and the notice of motion . . . must state when, and the grounds upon which it will be made.” “Due process principles require reasonable notice and [an] opportunity to be heard.” (Horn v. County of Ventura (1979) 24 Cal.3d 605, 612.) California Rules of Court, Rule 3.1110(b)(1) provides that notice of a motion must include “[t]he date, time, and location . . . of any scheduled hearing.”

Here, Plaintiffs’ notice of motion did not contain a date or time for the hearing on Plaintiffs’ motion. The Court presumes this is due to the unavailability of the Court’s reservation system at the time Plaintiffs’ motion was filed due to the COVID-19 pandemic. Irrespective of that fact, the Court ordered Plaintiffs to give notice pursuant to its June 19, 2020 minute order. Plaintiffs failed to give notice as ordered.

Therefore, the Court finds that notice was not proper.

Issue No.2: Lack of Meet and Confer

California Code of Civil Procedure, Section 439(a) provides that “[b]efore filing a motion for judgment on the pleadings . . . the moving party shall meet and confer in person by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings.”

Here, neither Plaintiffs’ moving nor reply papers provide a declaration stating that the meet and confer requirement was met.

Therefore, the Court finds that Plaintiffs failed to meet and confer before filing their motion for judgment on the pleadings.

Although the parties are pro per, they are all “held to the same standards as attorneys.” (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)

Due to the lack of proper notice, the Court DENIES WITHOUT PREJUDICE Plaintiffs’ motion for judgment on the pleadings.

Moving parties are ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by CourtCall if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 14th day of August 2020

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: BC590284    Hearing Date: November 26, 2019    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CESAR ROMERO, et al.,

Plaintiffs,

vs.

BROCCA CUSTOM FINISHING CARPENTRY, INC., et al.,

Defendants.

CASE NO.: BC590284

[TENTATIVE] ORDER RE: MOTION TO SET ASIDE AUGUST 12, 2019 DISQUALIFICATION ORDER AND ANY DEFAULTS ENTERED AGAINST INDIVIDUAL DEFENDANTS AFTER AUGUST 20, 2019; MOTION FOR SANCTIONS

Date: November 26, 2019

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Defendants Victor Daniel Brocca; Ida Brocca; Jerry Guzman; and Craig N. Rossell (“Rossell”) and the Rossell Law Firm (“Moving Parties”)

RESPONDING PARTIES: Plaintiffs Cesar Romero and Tatiana Romero

The Court has considered the moving and opposition papers in connection with the: (1) motion to set aside the Court’s August 12, 2019 disqualification order; and (2) any defaults entered against individual defendants after August 20, 2019. No reply brief was filed thereto.

In connection with Plaintiffs’ motion for sanctions against Rossell there was no opposition brief filed although the proof of service filed with Plaintiffs’ motion for sanctions indicates that all interested parties were served with Plaintiffs’ motion for sanctions on September 7, 2019. Any opposition to Plaintiffs’ motion for sanctions was required to be filed by November 13, 2019 pursuant to California Code of Civil Procedure, Section 1005(b).

BACKGROUND

Plaintiffs’ complaint arises from alleged wrongful actions taken in connection with a contract for carpentry services. Plaintiffs filed a complaint against Defendants alleging causes of action for: (1) breach of contract; (2) negligence; (3) fraud; (4) constructive fraud; and (5) racketeer influenced and corrupt organizations (RICO) violations.

Moving Parties filed a motion: (1) for the Court to set aside its August 12, 2019 disqualification order which Rossell was disqualified from representing Defendants in this action; and (2) its August 20, 2019 order striking the answer of and entering default against any of the Individual Defendants—Ida Brocca, Victor Daniel Brocca, and Jerry Guzman—to the extent such defaults have been, or will be, entered. Moving Parties filed their motion pursuant to California Code of Civil Procedure, Section 473(b).

Plaintiffs also filed a motion for sanctions pursuant to California Code of Civil Procedure, Sections 128.5 and 128.7 against Rossell. Plaintiffs seek sanctions in the amount of $87,714.88 against Rossell. The Court will address the respective motions filed by the parties within this one ruling.

On October 15, 2019, Moving Parties’ motion for the Court to set aside: (1) its August 12, 2019 disqualification order which Rossell was disqualified from representing Defendants in this action; and (2) its August 20, 2019 order striking the answer of and entering default against any of the Individual Defendants—Ida Brocca, Victor Daniel Brocca, and Jerry Guzman—to the extent such defaults have been, or will be, entered was called for hearing. The Court’s minute order indicated that the Court had read and considered all filed documents related to Moving Parties’ motion, provided counsel with its written tentative ruling, and gave counsel the opportunity to argue. The Court continued the hearing on Moving Parties’ motion to November 26, 2019. The Court also continued the hearing on Plaintiffs’ motion for sanctions to November 26, 2019. Plaintiff was ordered to give notice to which Plaintiff complied.

Brief Procedural Background

On July 18, 2019, Plaintiffs filed a motion to disqualify Rossell from further representing Defendants which went unopposed and on August 12, 2019, the Court granted Plaintiffs’ motion for disqualification with respect to Rossell.

On August 20, 2019, as indicated by the Court’s minute order, the Court struck the answer of Defendant Brocca Custom Finishing and entered a default against Defendant Brocca Custom Finishing. The Court’s August 20, 2019 minute order indicated that the substitution of attorney for Defendant Brocca Custom Finishing had not been filed.

On September 12, 2019, Individual Defendants each filed substitution of attorney forms in which they each indicated that Rossell was their former legal representative and that they were now each representing themselves.

JUDICIAL NOTICE

The Court GRANTS Plaintiffs’ request for judicial notice in connection with their motion for sanctions.

EVIDENTIARY OBJECTIONS

The Court SUSTAINS Moving Parties’ objections numbers 1, 3-40 to the exhibits accompanying the declaration of Cesar Romero in opposition to Moving Parties’ motion to set aside the Court’s disqualification order and vacate defaults. Although the Court sustains all of Moving Parties’ objections they do not have an impact have on the Court’s ruling with respect to Moving Parties’ motion.

MOTION TO SET ASIDE

California Code of Civil Procedure, Section 473(b) says that “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made without a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or other proceeding was taken.” “The requirement that a verified pleading accompany the application for relief or that one be on file is mandatory, and failure to comply necessarily results in denial of relief.” (Daniels v. Daniels (1955) 136 Cal.App.2d 224, 228.)

August 12, 2019 Disqualification Order

While Moving Parties request that the Court set aside its August 12, 2019 disqualification order, Moving Parties’ motion fails to attach a copy of the pleading proposed to be filed therein. Although Moving Parties bought a collective motion, Rossell is purporting to object to the Court’s order disqualifying him due to his surprise as the moving papers assert that Rossell never received notice of Plaintiffs’ motion to disqualify. Proof of service, however, was filed with respect to Plaintiffs’ motion for disqualification and “the filing of a proof of service creates a rebuttable presumption that the service was proper.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) Moving Parties should have attached a proposed opposition to Plaintiffs’ motion for disqualification to their motion for the Court to set aside its August 12, 2019 order disqualifying Rossell. Moving Parties motion is procedurally improper under Daniels.

August 20, 2019 Entry of Default and Striking Answer

Additionally, to the extent that Moving Parties seek to set aside defaults entered against them individually—Victor Daniel Brocca; Ida Brocca; and Jerry Guzman (the “Individual Defendants”)—the Court finds that Moving Parties’ motion is moot, irrelevant, and is based on an inaccurate understanding of the procedural posture of this action. No default was entered against the Individual Defendants based on the Court’s August 20, 2019 minute order. Moreover, the answer of any of the Individual Defendants was never stricken. The Court’s August 20, 2019 minute order struck the answer filed by Defendant Brocca Custom Finishing and entered default against that party. The Court cannot set aside any default or set aside an order striking an answer as to any of the Individual Defendants because neither entering a default nor striking an answer has occurred with respect to any of the Individual Defendants.

The Court therefore DENIES Moving Parties’ motion for the Court to set aside: (1) its August 12, 2019 disqualification order; and (2) its August 20, 2019 order striking the answer of any Individual Defendant and entering default against any of the Individual Defendants to the extent such defaults have been, or will be, entered.

MOTION FOR SANCTIONS

Plaintiffs filed a motion for sanctions against Rossell on the grounds that Rossell: (1) engaged in bad-faith and frivolous actions in order to cause unnecessary delays; (2) offered defenses and legal contentions that were not supported by existing law and that any reasonable attorney would have known is completely devoid of any merit; (3) offered allegations and factual contentions that had no evidentiary support; and (4) denied factual contentions that were not warranted. Plaintiffs seek sanctions in the amount of $87,714.88 against Rossell pursuant to California Code of Civil Procedure, Sections 128.5 and 128.7 reflecting the litigation expenses and attorney’s fees that Plaintiffs were forced to incur as a result of Rossell’s bad faith actions and tactics throughout this five-year litigation.

Sanctions pursuant to California Code of Civil Procedure, Section 128.5 are discretionary. Similarly, sanctions pursuant to California Code of Civil Procedure, Section 128.7 are discretionary. Due to Plaintiffs’ motion being unopposed, the Court GRANTS Plaintiffs’ motion for sanctions against Rossell pursuant to California Code of Civil Procedure, Section 128.5 and 128.7. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The Court exercises its discretion and orders Rossell to pay sanctions in the more reasonable amount of $17,542.98 which represents twenty percent (20%) of Plaintiffs’ requested sanctions amount and should be sufficient to deter repetition of Rossell’s conduct which is the goal of sanctions under Sections 128.5 and 128.7. Sanctions are payable by Rossell to Plaintiffs within 120 days.

Moving Parties are ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 26th day of November 2019

Hon. Holly J. Fujie

Judge of the Superior Court