BLAS MUNOZ VS PEDRO MUNOZ ET AL

Tentative Rulings

Case Number: ****5836 Hearing Date: July 9, 2021 Dept: 48

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

Stanley P. Lieber, attorney of record for Plaintiff Blas Munoz, seeks to be relieved as counsel. Counsel’s declaration states that Plaintiff passed away in January 2020. Counsel has attempted to stipulate a representative for his estate, but no one has been appointed. The motion is unopposed.

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. Counsel no longer has a client to represent. The decedent’s personal representative or successor-in-interest has had sufficient time in the last 1.5 years to decide whether to retain him and to take the proper steps to be substituted in place of the decedent. On August 21, 2020, the Court denied a motion to substitute Elva Munoz in place of the decedent and explained that the motion did not comply with Code of Civil Procedure section 377.32. Elva Munoz did not remedy the defects. Therefore, even though trial is set for September 7, 2021, the Court grants the motion because counsel has no client to represent.

However, counsel must file a completely filed out form MC-053 before the hearing. The unopposed motion to be relieved is GRANTED, contingent on the filing of a completely filled out form MC-053, and effective upon filing a proof of service showing service of form MC-053 on all parties who have appeared.

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: ****5836    Hearing Date: August 21, 2020    Dept: 48

[TENTATIVE] ORDER RE: PLAINTIFF'S MOTION TO SUBSTITUTE ELVA MUNOZ IN PLACE OF DECEASED PLAINTIFF

On December 4, 2017, Plaintiff Blas Munoz (“Plaintiff”) filed this action against Defendants Pedro Munoz and Gabriela Munoz for quiet title, breach of contract, declaratory relief, specific performance, fraud, and rescission of contract. On April 23, 2020, Plaintiff’s counsel filed this motion to substitute Elva Munoz in place of Plaintiff, who is now deceased.

“A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest . . . and an action may be commenced by the decedent’s personal representatives or, if none, by the decedent’s successor in interest.” (Code Civ. Proc., ; 377.30.) After the death of a plaintiff, the court, on motion, shall allow a pending action that does not abate to be continued by the decedent’s personal representative or successor-in-interest. (Code Civ. Proc., ; 377.31.)

The person who seeks to commence or continue a pending action as the decedent’s successor-in-interest shall execute and file an affidavit or declaration that includes (1) the decedent’s name; (2) the date and place of decedent’s death; (3) “No proceeding is now pending in California for administration of the decedent’s estate”; (4) a copy of the final order showing the distribution of the decedent’s cause of action to the successor-in-interest, if the decedent’s estate was administered; (5) either the declarant is the decedent’s successor in interest or the declarant is authorized to act on behalf of the decedent’s successor in interest, with facts in support thereof; (6) “No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding”; and (7) that the statements are true, under penalty of perjury. (Code Civ. Proc., ; 377.32, subd. (a).) The affidavit or declaration must attach a certified copy of the decedent’s death certificate. (Code Civ. Proc., ; 377.32, subd. (c).)

Plaintiff’s counsel declares that her office was notified on February 4, 2020 of Plaintiff’s death, and she has been unable to obtain the necessary documents because the county offices are closed. (Hensley Decl. ¶¶ 3-5.) Counsel does not provide a declaration from Elva Munoz, and the motion does not comply with Code of Civil Procedure section 377.32.

Accordingly, the motion to substitute Elva Munoz in place of Plaintiff is DENIED WITHOUT PREJUDICE.

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: ****5836    Hearing Date: August 11, 2020    Dept: 48

[TENATIVE] ORDER RE MOTION FOR TERMINATING SANCTIONS

On July 25, 2019, Plaintiff Blas Munoz served a request for production of documents on Defendant Pedro Munoz. Pedro Munoz did not respond and did not produce documents. Plaintiff sent a letter giving an extension of time to respond but received no response. On December 5, 2019, Plaintiff Blas Munoz filed and served a motion to compel Pedro Munoz’ production of documents. Pedro Munoz did not file an opposition. On December 31, 2019, the Court granted Plaintiff Blas Munoz’ motion to compel the production of documents from Defendant Pedro Munoz. Pedro Munoz did not appear at the December 31, 2019 hearing. On January 10, 2020, Plaintiff served and filed a notice of the ruling on Pedro Munoz’ attorney.

The December 31, 2019 order required Pedro Munoz to provide verified responses without objection and produce responsive documents within ten days. Pedro Munoz did not serve the responses or produce documents.

On July 20, 2020, Plaintiff filed this motion for terminating sanctions. Pedro Munoz did not file an opposition.

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, Pedro Munoz filed no opposition to the original motion to compel or this motion. He did not appear at the hearing on the motion to compel. He failed to served responses to discovery or produce documents as ordered. Plaintiff served him with a notice of the ruling on the motion to compel. Given Pedro Munoz’ apparent disinterest in litigating this case, failure to respond to discovery, and failure to comply with the order after receiving notice of the ruling, the Court finds that he understood his obligations to answer discovery, had the ability to comply, and willfully failed to comply, and that lesser sanctions will not curb the abuse.

Accordingly, the motion is GRANTED. Pedro Munoz’ answer is stricken and default is entered against him.

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: ****5836    Hearing Date: December 31, 2019    Dept: 48

(1) MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS;

(2) MOTION TO DEEM TRUTH OF MATTERS ADMITTED; REQUEST FOR SANCTIONS

MOVING PARTY: (1) & (2) Plaintiff/Cross-Defendant Blas Munoz

RESPONDING PARTY(S): (1) & (2) No oppositions filed.

PROOF OF SERVICE:

• Correct Address: (1) & (2) Served by email.
• 16/21 (CCP ; 1005(b)): (1) & (2) Served by email on December 5, 2019. Because this case was filed before December 31, 2018, electronic service of documents filed in 2019 is proper per CCP ; 1010.6(a)(2)(A)(i).

• GRANT motion to compel responses to requests for production of documents; DENY request for evidence sanctions;

• GRANT motion to deem admitted requests for admission;

• DENY requests for sanctions.

  ANALYSIS

  Motion to Compel Responses to Request for Production of Documents

  As of the date of the filing of this motion, Defendant had not served any responses. See Declaration of Patrice J. Hensley, ¶ 12. Therefore, the motion to compel responses to requests for production of documents is GRANTED. Defendant Pedro Munoz is ordered to provide verified responses without objection, and related document production within 10 days of this Order.

  Plaintiff’s request for evidence sanctions is DENIED. Plaintiff may bring a separately-noticed motion.

  Sanctions are discussed below.

  Motion to Deem Admitted Requests for Admission

  As of the date of this motion, Defendant had not served any response. See Declaration of Patrice J. Hensley, ¶ 4. Accordingly, the motion to deem admitted requests for admission is GRANTED.

  Sanctions are discussed below.

  Sanctions

  Plaintiff’s requests for sanctions are DENIED. The notices of motion do not specify the individual and/or attorney against whom the sanctions are sought, as required by CCP ; 2023.040.