ANDY OBINNA VS DORIS ONUOHAH ET AL

Tentative Rulings

Case Number: ****8794    Hearing Date: April 1, 2021    Dept: 48

[TENTATIVE] RULING ON OBJECTIONS TO PROPOSED STATEMENT OF DECISION

On March 9, 2021, the Court issued its Tentative Decision and Proposed Statement of Decision. On March 24, 2021, Plaintiffs Andy Obinna and Zsuzsanna Obinnane filed Objections to Proposed Statement of Decision. No other party objected. Having considered the Objections, the Court rules as follows:

The applicable legal standard for a statement of decision is set forth in In re Marriage of Burkle (2006) 139 Cal. App. 4th 712, 736-737, fn. 15: “‘The court’s statement of decision is sufficient if it fairly discloses the court’s determination as to the ultimate facts and material issues in the case.’ (Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1380; see also Bauer v. Bauer (1996) 46 Cal.App.4th 1106, 1118 [trial court ‘is not required to make an express finding of fact on every factual matter controverted at trial, where the statement of decision sufficiently disposes of all the basic issues in the case’]; In re Marriage of Garrity & Bishton (1986) 181 Cal.App.3d 675, 686–687 [trial court’s statement of decision is required only to state ultimate rather than evidentiary facts]).”

The fact that a party disagrees with the ruling or believes that the evidence should be reweighed in that party’s favor is not a basis to change the ruling. Heaps v. Heaps (2004) 124 Cal. App. 4th 286, 292. Objections are not the place to cross-examine a court regarding its decision. (See, e.g., People v. Casa Blanca Convalescent Homes, Inc., (1984) 159 Cal.App.3d 509, 525, disapproved on other grounds in Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal. 4th 163 [request “seeks an inquisition, a rehearing of the evidence;” “The trial court was not required to provide specific answers so long as the findings in the statement of decision fairly disclose the court’s determination of all material issues”].)

Pursuant to this legal standard, Plaintiffs’ arguments in the Objections are overruled on the grounds that the Proposed Statement of Decision fairly and sufficiently sets forth the factual and legal basis for the Court’s determination as to the ultimate facts and the material issues, and Plaintiffs did not identify any material or controverted issues that have not been addressed in the Proposed Statement of Decision.

Plaintiffs are 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: ****8794    Hearing Date: December 29, 2020    Dept: 48

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

S. David Kozich of Legis Law, PC, attorney of record for Defendant Doris Onuohah, seeks to be relieved as counsel on the grounds that Defendant breached her obligations as to expenses and fees, rendered it unreasonably difficult for counsel to carry on with his obligations, and failed to heed the advice of counsel.

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.) Trial is set for January 19, 2021, and the final status conference is next week. Counsel filed a motion to be relieved in January 2019, withdrew it, and then filed another motion to be relieved in October 2019, which counsel then took off calendar. These prior motions show that problems in the relationship have existed for almost two years. Withdrawing one week before the final status conference and three weeks before trial is prejudicial to the client.

Accordingly, the motion to be relieved is DENIED.

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: ****8794    Hearing Date: October 22, 2020    Dept: 48

[TENATIVE] ORDER RE MOTION TO BE RELIEVED FROM DEEMED ADMISSIONS

On February 7, 2020, Plaintiff Andy Obinna filed a motion to deem requests for admission propounded to Defendant Doris Onuohah admitted because she had failed to respond to the discovery. On March 2, 2020, two days before the hearing on the motion, Defendant filed an opposition. On March 3, 2020, Defendant filed a notice that she had lodged verified discovery responses with the Court. On March 4, 2020, the Court granted the motion and deemed the RFAs admitted. On March 6, 2020, Defendant filed a motion for reconsideration. On August 5, 2020, the Court denied the motion for reconsideration. The Court noted that Defendant signed the verification for the requests for admission on March 2, 2020, but the proof of service stated the verified responses were mailed and emailed to Plaintiff’s counsel on February 28, 2020. Verified responses could not be served on February 28, 2020 if the verifications were not signed until March 2, 2020.

On October 1, 2020, Defendant filed a motion to be relieved from the deemed admissions. The motion was set for hearing on October 22, 2020. The proof of service shows email service on September 30, 2020, fifteen court days before the hearing date. Plaintiff’s counsel stated the motion was not served by email, only be mail, and that he received it on October 5, 2020, twelve court days before the hearing. Defendant submits an exhibit showing service by email on September 30, 2020.

Pursuant to Code of Civil Procedure section 2033.300, subdivision (b), a court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining the party’s action or defense on the merits.

Defense counsel presents evidence in his declaration that Defendant emailed responses to the requests for admission and verifications to the billing coordinator at defense counsel’s firm in April 2019, but the billing coordinator never gave them to defense counsel. For the next seven months, Defendant did not return calls from her attorney, and thereafter for many months, Defendant did not respond to her attorney’s questions about the missing discovery responses and verifications. Not until February 13, 2020, ten months later, did Defendant tell her attorney that she had sent the responses and verifications to the billing coordinator the previous year. According to defense counsel, on February 13, 2020, Defendant showed him the email she had sent to the billing coordinator with the responses and verifications.

This story does not show a mistake, inadvertence, or excusable neglect. It shows unexcusable neglect by Defendant. Defendant failed to communicate with her attorney or answer his questions for ten months. She did not provide an excuse for the lack of communication during that time.

Also, Defendant has not shown that Plaintiff will not be substantially prejudiced. The non-jury trial in this case is scheduled for November 23, 2020, in one month. There is no time for additional discovery. Thus, if Defendant is permitted to withdraw the admissions, Plaintiff has no time to take follow up discovery. This case was filed on July 18, 2017, making it more than three years old. No party has shown good cause to continue the trial or discovery cutoff date.

Accordingly, the motion is DENIED.

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: ****8794    Hearing Date: October 07, 2020    Dept: 48

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

S. David Kozich of Legis Law, PC, attorney of record for Defendant Jerry Ikogho, seeks to be relieved as counsel on the grounds that Defendant breached his obligations as to expenses and fees, rendered it unreasonably difficult for counsel to carry on with its obligations, and failed to heed the advice of counsel.

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.) Trial is set for November 23, 2020, and the final status conference is in a month. Defendant appears to be incarcerated, which will make it difficult for him to represent himself or to find alternate counsel. Counsel filed a motion to be relieved in January 2019, which was later withdrawn, and then filed another motion to be relieved in October 2019, which counsel then took off calendar. These prior motions show that problems in the relationship have existed for almost two years. Waiting until six weeks before trial to seek to withdraw again is prejudicial to the client.

Accordingly, the motion to be relieved is DENIED.

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: ****8794    Hearing Date: August 05, 2020    Dept: 48

[TENTATIVE] ORDER RE MOTION FOR TERMINATING SANCTIONS

On March 2, 2020, the Court granted Plaintiff Andy Obinna’s motions to compel discovery against Defendants Jerry Ikogho and Doris Onuohah, ordered Defendants to serve verified responses without objections within 20 days, and ordered Defendants to pay monetary sanction within 39 days.

On May 29, 2020, Plaintiffs Andy Obinna and Zsuzsanna Obinnane filed a motion for terminating sanctions against Defendants. Plaintiffs state that Defendants did not provide the responses or pay the sanctions.

Where a party fails to obey an order compelling answers to discovery, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (Code Civ. Proc., ;; 2030.290, subd. (c), 2023.010, subd. (c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) The Court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc., ; 2023.030, subd. (d).) Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. (Code Civ. Proc., ; 2023.010, subds. (d), (g).) A terminating sanction may be imposed by an order dismissing part or all of the action. (Code Civ. Proc., ; 2023.030, subd. (d)(3).)

The court should consider the totality of the circumstances, including conduct of the party to determine if the actions were willful, the determent to the propounding party, and the number of formal and informal attempts to obtain discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) If a lesser sanction fails to curb abuse, a greater sanction is warranted. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) However, “the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.” (Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787.) Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to comply. (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.) Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply. (Deyo, supra, 84 Cal.App.3d at p. 787; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.) The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. (Deyo, supra, 84 Cal.App.3d at p. 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, ;; 500, 605.)

Here, the Court cannot conclude that Defendants willfully failed to comply with discovery orders justifying termination. Defendants attach verified responses signed in February 2020, state that in April 2020 they reserved those responses with the preliminary statement removed, and attach a proof of service showing service of verified discovery on April 15, 2020. Plaintiffs do not address the April 15, 2020 service of the discovery responses.

Also, the motions to compel were all brought by Plaintiff Andy Obinna. Plaintiff Zsuzsanna Obinnane did not bring any motions to compel, and therefore Defendants have not violated any order to provide discovery to her.

The failure to pay a monetary sanctions is not a basis for terminating sanctions. Plaintiff may enforce the order to pay a monetary sanction as a judgment. (See, e.g., Newland v. Superior Court (1995) 40 Cal.App.4th 608.)

Accordingly, the motion is DENIED.

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.