Tentative Rulings

Case Number: BC641142    Hearing Date: February 05, 2021    Dept: 48

[TENTATIVE] ORDER RE: MOTION TO BE RELIEVED AS COUNSEL

Andrew G.O. Biren and Biren Law Group, attorneys of record for Plaintiff Marcello Palmieri, seek to be relieved as counsel. Counsel states that there has been an irreparable breakdown in the attorney-client relationship.

Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.) Counsel’s motion complies with California Rules of Court, Rule 3.1362. No trial date is scheduled, so no prejudice will result from granting the motion. Accordingly, the unopposed motion to be relieved is GRANTED and effective upon filing a proof of service showing service of this order and a signed MC-053 on Marcello Palmieri and all parties who have appeared. Counsel is to file an updated form MC-053 with the current next scheduled hearings updated to reflect the new department and Case Management Conference date.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC641142    Hearing Date: December 21, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

NOTICE

Department #32 will be dark for motions.  The parties are ordered to email the Court’s clerk at SSCDept32@lacourt.org to inform the clerk whether they are submitting on the Court’s tentative or whether they are requesting a hearing.  If any party requests a hearing, one will be scheduled.  If the parties do not email the Court’s clerk before the hearing time to request a hearing, they will waive the right to be heard and shall submit to this tentative order, which shall issue.

TENTATIVE ORDER

Attorney G.O. Biren (“Counsel”) moves to be relieved as counsel for Plaintiff Marcello Palmieri (“Plaintiff”). Counsel has filed forms MC-051 and MC-052, and has lodged with the Court a copy of the proposed order on form MC-053 as required.  (Cal Rules of Court, rule 3.1362.) The basis for this motion is a breakdown in the attorney-client relationship. This constitutes good cause.

Based upon the foregoing, Counsel’s motion is granted. Counsel should note that the order will become effective upon the filing of proof of service of a signed copy of the order on Plaintiffs.  Counsel will remain the attorneys of record until Counsel files with the Court proof of service of the signed order.

Counsel is to give notice of this order and file proof of service of such.

DATED: December 21, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC641142    Hearing Date: November 08, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

Plaintiff Marcello Palmieri (“Plaintiff”) filed this action against Defendant Alan Traynor (“Defendant”) following a motor vehicle collision. Now, Defendant moves for terminating sanctions based upon Plaintiff’s failure to appear for a Court-ordered medical examination by an orthopedic surgeon.

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. (Code Civ. Proc. §§ 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) 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.)

On June 3, 2019, the Court granted Defendant’s motion to compel an independent medical examination by a designated orthopedic surgeon. The Court ordered Plaintiff to submit to the examination within 45 days of notice, which occurred on June 4, 2019 by mail, meaning that the examination should have been completed on or before July 24, 2019. However, Plaintiff’s former counsel filed a motion to be relieved on May 21, 2019, which ultimately was granted on June 24, 2019, following two hearings on the motion. Defendant filed the instant motion on October 9, 2019, and Plaintiff filed a substitution of counsel form on October 25, 2019. Based upon this record, the Court cannot conclude that Plaintiff’s failure to comply with this Court’s order warrants a terminating sanction. “[T]erminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective.” (Link v. Cater, 60 Cal.App.4th 1315, 1326 [emphasis added].) The Court believes that a further order will effectuate the medical examination. Defendant did not move for any other sanctions, so the Court orders none.

CONCLUSION AND ORDER

Defendant’s motion for terminating sanctions is denied without prejudice. Plaintiff is ordered to submit to an independent medical examination within thirty (30) days of notice of this order. Defendant shall provide notice and file proof of such with the Court.

DATED: November 8, 2019 ___________________________

Hon. Stephen I. Goorvitch

Judge of the Superior Court