CLAUDIO ZAMPOLLI VS TRISTRAM THOMAS BUCKLEY

Tentative Rulings

Case Number: BC592731    Hearing Date: October 21, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CLAUDIO ZAMPOLLI, Plaintiff, vs. TRISTRAM BUCKLEY, et al., Defendants. AND RELATED CROSS-ACTION

CASE NO.: BC592731 [TENTATIVE] ORDER RE: MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Date: October 21, 2020 Time: 8:30 a.m. Dept. 56

MOVING PARTY: Defendant Tristram Buckley (“Moving Defendant”)

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

Plaintiff’s complaint arises from Defendant’s allegedly harassing, stalking, making false statements, and hitting Plaintiff with a camera. Plaintiff filed a complaint against Defendant alleging causes of action for: (1) assault and battery; (2) intentional infliction of emotional distress; (3) slander per se; and (4) elder abuse in violation of California Welfare and Institutions Code, Section 15600 et seq.

Moving Defendant filed a motion for summary judgment or, in the alternative, summary adjudication. Moving Defendant’s motion is made on the grounds that there are no triable issues of material fact as to any of Plaintiff’s claims.

The proof of service attached to Moving Defendant’s motion indicates that the motion was served on Plaintiff on April 6, 2012; however, this action was not filed until 2015 and thus the motion for summary judgment could not be served three years prior to the initiation of litigation. The Court assumes that such date on the proof of service is a typographical error; however, the Court will require Moving Defendant to provide a proper proof of service before the Court grants the motion. The Court must be able to ascertain when Plaintiff was served with the motion for notice purposes. Moving Defendant’s motion is unopposed.

The Court GRANTS Moving Defendant’s motion for summary judgment in its entirety CONDITIONED ON Moving Defendant providing the Court with a proof of service indicating that the motion for summary judgment was timely served. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Moving party is 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 October 2020

Case Number: BC592731    Hearing Date: August 21, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CLAUDIO ZAMPOLLI, Plaintiff, vs. TRISTRAM BUCKLEY, et al., Defendants. AND RELATED CROSS-ACTION

CASE NO.: BC592731 [TENTATIVE] ORDER RE: MOTIONS TO COMPEL; MOTION FOR AN ORDER THAT REQUESTS FOR ADMISSIONS BE DEEMED ADMITTED Date: August 21, 2020 Time: 8:30 a.m. Dept. 56

MOVING PARTY: Defendant Tristram Buckley

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

Plaintiff’s complaint arises from Defendant’s allegedly harassing, stalking, making false statements, and hitting Plaintiff with a camera. Plaintiff filed a complaint against Defendant alleging causes of action for: (1) assault and battery; (2) intentional infliction of emotional distress; (3) slander per se; and (4) elder abuse in violation of California Welfare and Institutions Code, Section 15600 et seq.

On April 27, 2020, Defendant filed and served the following four motions: (1) a motion to compel Plaintiff to provide verified responses to Defendant’s special interrogatories served on February 5, 2020; (2) a motion to compel Plaintiff to provide verified responses to Defendant’s request for production served on February 5, 2020; (3) a motion to compel Plaintiff to provide verified responses to Defendant’s form interrogatories served on February 5, 2020; and (4) a motion for an order that the genuineness of any documents and the truth of any matters specified in Defendant’s request for admissions be deemed admitted. In connection with each motion, Defendant seeks monetary sanctions in the amount of $4,200.00. None of the motions have a hearing date or time and merely indicates that such date and time of the hearing is “TBD.” Each of Defendant’s motions is unopposed.

On June 19, 2020, the Court issued a minute order, which was mailed to Defendant, indicating that Defendant’s respective discovery motions were all set for August 21, 2020. The Court ordered Defendant to give notice. A review of the Court file, however, indicates that no proof of service of such notice has filed pursuant to the Court’s minute order.

Initially, the Court finds that each of Defendant’s motions is defective with respect to the request for monetary sanctions and the Court DENIES Defendant’s request for sanctions in connection with each motion. None of the motions indicate explicitly against whom monetary sanctions are sought. “A request for sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” (Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 207-208.) “Adequate notice prior to imposition of sanctions is mandated not only by statute, but also by the due process clauses of both the state and federal Constitutions.” (Id. at 208.)

Due to Defendant’s motion being unopposed, the Court GRANTS Defendant’s motion: (1) to compel Plaintiff to provide verified responses to Defendant’s special interrogatories served on February 5, 2020; (2) to compel Plaintiff to provide verified responses to Defendant’s request for production served on February 5, 2020; (3) to compel Plaintiff to provide verified responses to Defendant’s form interrogatories served on February 5, 2020; and (4) for an order that the genuineness of any documents and the truth of any matters specified in Defendant’s request for admissions be deemed admitted, CONDITIONED ON Defendant providing the Court with proof of notice indicating that notice of each of the above motions was effectuated as ordered by the Court’s June 19, 2020, minute order. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

If Defendant does not provide this Court with proof of notice in connection with each of the four motions, the Court will continue the hearing on the motions—in order for proper notice to be given—and Plaintiff will therefore be given an opportunity to oppose such motions.

Moving party is 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 21st day of August 2020

Case Number: BC592731    Hearing Date: February 27, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CLAUDIO ZAMPOLLI, Plaintiff, vs. TRISTRAM BUCKLEY, et al., Defendants. AND RELATED CROSS-ACTION

CASE NO.: BC592731 [TENTATIVE] ORDER RE: MOTION TO SET ASIDE JUDGE SCHEPER’S 2016 SANCTION ORDER Date: February 27, 2020 Time: 8:30 a.m. Dept. 56 FSC: May 26, 2020 Jury Trial: June 8, 2020

MOVING PARTY: Defendant Tristram Buckley

The Court has considered the moving papers. No opposition papers were filed. No courtesy copies of any opposition papers were provided to the Court.

BACKGROUND

Plaintiff’s complaint arises from Defendant allegedly harassing, stalking, making false statements, and hitting Plaintiff with a camera. Plaintiff filed a complaint against Defendant alleging causes of action for: (1) assault and battery; (2) intentional infliction of emotional distress; (3) slander per se; and (4) elder abuse in violation of California Welfare and Institutions Code, Section 15600 et seq.

Defendant filed a motion to set aside Judge Scheper’s November 10, 2016 sanction order against him in the amount of $4,110.00. No opposition was filed.

Due to Defendant’s motion being unopposed, the Court GRANTS Defendant’s motion to set aside Judge Scheper’s November 10, 2016 sanction order. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Moving party is 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 27th day of February 2020

Case Number: BC592731    Hearing Date: February 06, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CLAUDIO ZAMPOLLI, Plaintiff, vs. TRISTRAM BUCKLEY, et al., Defendants. AND RELATED CROSS-ACTION

CASE NO.: BC592731 [TENTATIVE] ORDER RE: MOTION IN LIMINE NO.2 FOR DETERMINATION OF PLAINTIFF AS A PUBLIC FIGURE Date: February 6, 2020 Time: 8:30 a.m. Dept. 56 FSC: May 26, 2020 Jury Trial: June 8, 2020

MOVING PARTY: Defendant Tristram Buckley

The Court has considered the moving papers. No opposition papers were filed. No courtesy copies of any opposition papers were provided to the Court.

BACKGROUND

Plaintiff’s complaint arises from Defendant allegedly harassing, stalking, making false statements, and hitting Plaintiff with a camera. Plaintiff filed a complaint against Defendant alleging causes of action for: (1) assault and battery; (2) intentional infliction of emotional distress; (3) slander per se; and (4) elder abuse in violation of California Welfare and Institutions Code, Section 15600 et seq.

Defendant filed his motion in limine number two for the determination of Plaintiff as a public figure with respect to the claims asserted in this action and that these matters are of public concern. Defendant’s motion in limine number two is unopposed; however, Defendant’s motion in limine number two was not filed with an accompanying proof of service. Defendant is to bring a filed proof of service to the hearing on Defendant’s motion in limine number two and the Court will determine the effect, if any, such proof of service has on this Court’s ruling.

Due to Defendant’s motion in limine being unopposed, the Court GRANTS Defendant’s motion in limine number two for the determination of Plaintiff as a public figure with respect to the claims asserted in this action and that these matters are of public concern. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Moving party is 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 6th day of February 2020

Case Number: BC592731    Hearing Date: December 03, 2019    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CLAUDIO ZAMPOLLI, Plaintiff, vs. TRISTRAM BUCKLEY, et al., Defendants. AND RELATED CROSS-ACTION

CASE NO.: BC592731 [TENTATIVE] ORDER RE: MOTION TO SET ASIDE JUDGE SCHEPER’S 2016 SANCTION ORDER Date: December 3, 2019 Time: 8:30 a.m. Dept. 56 Jury Trial: June 8, 2020

MOVING PARTY: Defendant Tristram Buckley

The Court has considered the moving papers. No opposition papers were filed. No courtesy copies of any opposition papers were provided to the Court. Any opposition papers were required to be filed by November 18, 2019 pursuant to California Code of Civil Procedure, Section 1005(b).

The Court notes that while Proof of Service was submitted indicating that the moving papers were served by mail on Mr. Zampolli, in pro per, the Court also served a copy of its last order on Mr. Zampolli at that address, which was returned. The Court further notes, however, that Mr. Zampolli has not filed a notice of change of address with the Court and that the address at which service is noted on the Proof of Service for the moving papers is the official address for Mr. Zampolli in this case and service of this motion is valid.

BACKGROUND

Plaintiff’s complaint arises from Defendant’s allegedly harassing, stalking, making false statements, and hitting Plaintiff with a camera. Plaintiff filed a complaint against Defendant alleging causes of action for: (1) assault and battery; (2) intentional infliction of emotional distress; (3) slander per se; and (4) elder abuse in violation of California Welfare and Institutions Code, Section 15600 et seq.

Defendant filed a motion to set aside Judge Scheper’s November 10, 2016 sanction order that was issued against Defendant in the amount of $4,110.00. Defendant’s motion is made on the grounds that: (1) a sanction award of $5,000.00 or less is not a final order and as such the right to appeal such a sanction order only arises after there has been a final judgment entered in the underlying action; and (2) Judge Scheper’s sanction order was imposed without compliance with the safe harbor provision as held mandatory by the Second District Court of Appeal. Plaintiff failed to file an opposition to Defendant’s motion.

Due to Defendant’s motion being unopposed, the Court GRANTS Defendant’s motion to set aside Judge Scheper’s November 10, 2016 sanction order issued against Defendant. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Moving party is 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 3rd day of December 2019

Case Number: BC592731    Hearing Date: October 29, 2019    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

CLAUDIO ZAMPOLLI, Plaintiff, vs. TRISTRAM BUCKLEY, et al., Defendants. AND RELATED CROSS-ACTION

CASE NO.: BC592731 [TENTATIVE] ORDER RE: PLAINTIFF/CROSS-DEFENDANT CLAUDIO ZAMPOLLI’S EX PARTE APPLICATION Date: October 29, 2019 Time: 8:30 a.m. Dept. 56 Jury Trial: June 8, 2020

MOVING PARTY: Plaintiff Claudio Zampolli

RESPONDING PARTY: Defendant Tristram Buckley

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

BACKGROUND

Plaintiff’s complaint arises from Defendant allegedly harassing, stalking, making false statements, and hitting Plaintiff with a camera. Plaintiff filed a complaint against Defendant alleging causes of action for: (1) assault and battery; (2) intentional infliction of emotional distress; (3) slander per se; and (4) elder abuse in violation of California Welfare and Institutions Code, Section 15600 et seq.

Plaintiff filed an ex parte application for an order releasing to Plaintiff’s attorneys Defendant’s undertaking for appeal of $4,110.00 that was posted on January 3, 2018 in connection with the Court’s prior order of monetary sanctions following the Court of Appeal’s dismissal of Defendant’s appeal on the sanction order, or in the alternative, to shorten time for hearing on Plaintiff’s application. Plaintiff’s ex parte application is bought pursuant to California Rules of Court, Rule 3.1200 et seq. on the grounds that: (1) Defendant was ordered to pay Plaintiff monetary sanctions in the amount of $4,110.00 or alternatively post a bond for that amount on or before January 3, 2017 in light of Defendant’s representations that he intended to move forward with an appeal; and (2) the Court of Appeal subsequently issued a remittitur issuing a final order of dismissal on Defendant’s appeal of the sanctions order. Plaintiff asserts that he will suffer irreparable harm if the relief requested is not granted until after a formally noticed hearing because he needs the funds to prepare for trial.

Plaintiff’s ex parte application for release of Defendant’s undertaking for appeal of $4,110.00 purported to file a declaration of Kiarash Kay Jafari re: ex parte notice; however, the declaration of Kiarash Kay Jafari re: ex parte notice was not filed with Plaintiff’s moving or reply papers and a courtesy copy of such declaration was not provided to the Court. The Court finds that the ex parte notice is unnecessary since the Court gave notice via its September 30, 2019 minute order that set a date for Plaintiff’s ex parte application and indicated when the opposition and reply papers in connection to Plaintiff’s ex parte application were due. The Court will address the proposed order, which was not filed with the Court although indicated it in fact was via Plaintiff’s moving papers, at the hearing.

JUDICIAL NOTICE

Plaintiff’s ex parte application indicated that a request for judicial notice was made in connection thereto but such request was not lodged with Plaintiff’s ex parte application and a courtesy copy of such request for judicial notice was not provided to the Court. The Court, however, finds that Plaintiff’s requested items for judicial notice are all records from this action which are already in this Court’s file in connection to this action. The Court therefore takes judicial notice on its own of the documents in Plaintiff’s request for judicial notice. (Kilroy v. State of California (2004) 119 Cal.App.4th 140.)

DISCUSSION

California Rules of Court, Rule 3.1200 and the rules set forth in the chapter containing Rule 3.1200 says that “[t] the rules in this chapter shall govern ex parte applications and orders in civil cases, unless otherwise provided by a statute or a rule. These rules may be referred to as the ex parte rules.” California Rules of Court, Rule 3.1201 sets forth the requirements for making a request for ex parte relief. California Rules of Court, Rule 3.1202(c) says that “[a]n applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.” “In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224, emphasis added.)

Here, the Court finds that Plaintiff’s ex parte application is defective because Plaintiff fails to provide the Court with any declaration setting forth facts that indicate the irreparable harm that Plaintiff asserts will occur if his ex parte application is not granted. Neither Plaintiff’s moving nor reply papers in connection with his ex parte application attach any declaration and no courtesy copy of any declaration was provided to the Court. Plaintiff only presents mere arguments without providing the Court with sufficient factual evidence on the issue of irreparable harm he will suffer or that he needs the funds at issue to prepare for trial.

Additionally, Plaintiff was represented by counsel at the time his ex parte application was filed with the Court on September 30, 2019. On October 15, 2019, a substitution of attorney form was filed where Plaintiff indicated he was representing himself and that Christopher K. Jafari was his former legal representative. The December 13, 2017 minute order indicated that Defendant was ordered to pay sanctions on or before January 3, 2017 or Defendant was to post a bond in the amount of $4,110.00 on or before January 3, 2017. While Plaintiff’s ex parte application requests that Defendant’s undertaking be released to his attorney, the Court finds there are two issues with that request: (1) the terms of the bond; and (2) whether the bond can be released to Plaintiff personally since he is no longer represented by an attorney. Plaintiff provides no legal authority on this point in either his moving or reply papers.

Therefore, the Court DENIES Plaintiff’s ex parte application for an order releasing to Plaintiff’s attorneys Defendant’s undertaking for appeal of $4,110.00 that was posted on January 3, 2018 in connection with the Court’s prior order of monetary sanctions following the Court of Appeal’s dismissal of Defendant’s appeal on the sanction order.

Moving party is 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 29th day of October 2019