This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 10:12:21 (UTC).

BRENDA BARNES ET AL VS JEFFREY ELLIOT BOYER ET AL

Case Summary

On 07/07/2017 BRENDA BARNES filed a Personal Injury - Motor Vehicle lawsuit against JEFFREY ELLIOT BOYER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7775

  • Filing Date:

    07/07/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JON R. TAKASUGI

 

Party Details

Plaintiffs

NAUGHTON PETER

BARNES BRENDA

Claimant, Cross Defendant and Cross Plaintiff

ESTATE OF MARC SCHACHTER

Defendants, Cross Plaintiffs and Cross Defendants

BOYER JEFFREY ELLIOT

THARP RHONDA

THARP DAVID

ESTATE OF MARC SCHACHTER

SCHACHTER MARC

ON BOARD ENTERTAINMENT INC.

Attorney/Law Firm Details

Plaintiff Attorney

LINK ROBERT THOMAS

Claimant Attorney

DIAZ A BRYAN JR

Defendant Attorney

MACDONALD SCOTT L

Cross Plaintiff Attorney

HUBERT ANDREW C. ESQ.

Cross Defendant Attorney

VOLK AMY ELIZABETH

 

Court Documents

Substitution of Attorney

6/19/2019: Substitution of Attorney

Substitution of Attorney

6/19/2019: Substitution of Attorney

Request for Dismissal

6/26/2019: Request for Dismissal

CROSS-DEFENDANT ON BOARD ENTERTAINMENT, INC.'S ANSWER TO COUNTER CLAIMANT ESTATE OF MARC SCHACHTER'S COUNTER CLAIM

6/19/2018: CROSS-DEFENDANT ON BOARD ENTERTAINMENT, INC.'S ANSWER TO COUNTER CLAIMANT ESTATE OF MARC SCHACHTER'S COUNTER CLAIM

CIVIL DEPOSIT

6/19/2018: CIVIL DEPOSIT

CIVIL DEPOSIT

6/19/2018: CIVIL DEPOSIT

NOTICE OF CHANGE OF MAILING ADDRESS

9/18/2018: NOTICE OF CHANGE OF MAILING ADDRESS

AMENDMENT TO COMPLAINT

9/18/2018: AMENDMENT TO COMPLAINT

Notice

10/11/2018: Notice

Answer

10/19/2018: Answer

Ex Parte Application

11/20/2018: Ex Parte Application

Minute Order

11/20/2018: Minute Order

Opposition

11/20/2018: Opposition

[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person

12/6/2018: [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person

Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

12/20/2018: Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

12/20/2018: Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

Motion to Be Relieved as Counsel

12/20/2018: Motion to Be Relieved as Counsel

Motion to Be Relieved as Counsel

12/20/2018: Motion to Be Relieved as Counsel

73 More Documents Available

 

Docket Entries

  • 07/07/2020
  • Hearingat 08:30 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; : OSC RE Dismissal

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  • 11/14/2019
  • Hearingat 08:30 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 10/31/2019
  • Hearingat 10:00 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 07/17/2019
  • Docketat 1:30 PM in Department 3, Jon R. Takasugi, Presiding; Hearing on Motion to Compel ((Motion to Compel Psychological IME of Plaintiff Brenda Barnes)) - Not Held - Taken Off Calendar by Party

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  • 06/27/2019
  • Docketat 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Jury Trial - Held - Continued

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  • 06/26/2019
  • DocketRequest for Dismissal; Filed by ESTATE OF MARC SCHACHTER (Claimant)

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  • 06/19/2019
  • Docketat 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Held - Continued

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  • 06/19/2019
  • DocketSubstitution of Attorney; Filed by Robert Thomas Link (Attorney)

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  • 06/19/2019
  • DocketSubstitution of Attorney; Filed by Robert Thomas Link (Attorney)

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  • 06/19/2019
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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103 More Docket Entries
  • 09/28/2017
  • DocketAnswer; Filed by Jeffrey Elliot Boyer (Defendant); David Tharp (Defendant); Rhonda Tharp (Defendant)

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  • 09/28/2017
  • DocketCross-Complaint; Filed by Jeffrey Elliot Boyer (Cross-Complainant); Rhonda Tharp (Cross-Complainant); David Tharp (Cross-Complainant)

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  • 09/28/2017
  • DocketCIVIL DEPOSIT

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  • 09/28/2017
  • DocketSummons on Cross Complaint

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  • 09/28/2017
  • DocketNOTICE OF POSTING JURY FEES

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  • 09/28/2017
  • DocketJEFFREY ELLIOT BOYER, DAVID THARP AND RHONDA THARP'S CROSS-COMPLAINT FOR INDEMNITY, CONTRIBUTION AND DECLARATORY RELIEF

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  • 09/28/2017
  • DocketANSWER TO COMPLAINT ON BEHALF OF DEFENDANTS JEFFREY ELLIOT BOYER, DAVID THARP AND RHONDA THARP

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  • 07/07/2017
  • DocketSUMMONS

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  • 07/07/2017
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 07/07/2017
  • DocketComplaint; Filed by Brenda Barnes (Plaintiff); Peter Naughton (Plaintiff)

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Tentative Rulings

Case Number: ****7775 Hearing Date: July 11, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

BRENDA BARNES, ET AL.,

Plaintiff(s),

vs.

JEFFREY ELLIOT BOYER, ET AL.,

Defendant(s).

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CASE NO: ****7775

[TENTATIVE] ORDER DENYING MOTION TO DISMISS

Dept. 31

1:30 p.m.

July 11, 2022

1. Background

On July 7, 2017, Plaintiffs Brendan Barnes (“Barnes”) and Peter Naughton (“Naughton”) (collectively, “Plaintiffs”) sued defendants Jeffrey Elliot Boyer, David Tharp, and Rhonda Tharp for damages arising from a four-car accident. Plaintiffs have filed an Amendment to Complaint naming On Board Entertainment, Inc. as Doe 1. Trial is currently set for July 13, 2022.

At this time, Defendants Jeffrey Elliot Boyer, David Tharp, and Rhonda Tharp (collectively, “Defendants”) move to dismiss Plaintiff’s complaint for Plaintiffs’ failure to prosecute. On Board Entertainment, Inc. filed a joinder to the motion.

This matter was originally set to be heard on June 13, 2022. The matter was continued due to Plaintiffs informing the court that an electronic Substitution of Attorney was filed on June 10, 2022. (Min. Order June 13, 2022.) The court’s records do not show that any Substitution of Attorney form was filed on June 10, 2022, or therafter. As of July 6, the court has not received any opposition.

2. Motion to Dismiss

CCP 583.410(a) states: “The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.”

CCP 583.420 provides in pertinent part:

(a) The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred:

(2) The action is not brought to trial within the following times:

(A) Three years after the action is commenced against the defendant unless otherwise prescribed by rule under subparagraph (B).

(B) Two years after the action is commenced against the defendant if the Judicial Council by rule adopted pursuant to Section 583.410 so prescribes for the court because of the condition of the court calendar or for other reasons affecting the conduct of litigation or the administration of justice.

Moreover, California Rules of Court, Rule 3.1340(a) provides, the court on its own motion or on motion of the defendant may dismiss an action under Code of Civil Procedure sections 583.410-583.430 for delay in prosecution if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant.

In addition, in ruling on a motion to dismiss under CCP 583.410, the court must consider all matters relevant to a proper determination of the motion, including:

(1) The court's file in the case and the declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process;

(2) The diligence in seeking to effect service of process;

(3) The extent to which the parties engaged in any settlement negotiations or discussions;

(4) The diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party;

(5) The nature and complexity of the case;

(6) The law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case;

(7) The nature of any extensions of time or other delay attributable to either party;

(8) The condition of the court's calendar and the availability of an earlier trial date if the matter was ready for trial;

(9) Whether the interests of justice are best served by dismissal or trial of the case; and

(10) Any other fact or circumstance relevant to a fair determination of the issue.

(Cal. Rules of Court, Rule 3.1342(e).)

“ ‘The competing considerations to be evaluated are the policies of discouraging stale claims and compelling reasonable diligence balanced against the strong public policy which seeks to dispose of litigation on the merits rather than on procedural grounds.’ [Citation.] ‘However, it is now well established that the policy [of preferring to dispose litigation on the merits] only comes into play when a plaintiff makes a showing of some excusable delay.’ [Citation.]” (Van Keulen v. Cathay Pacific Airways, Ltd. (2008) 162 Cal.App.4th 122, 131.)

Here, Defendants argue that Plaintiffs have repeatedly delayed trial in this matter by failing to appear for multiple trial, Final Status Conference (“FSC”), and other hearing dates. Defendants assert that Plaintiff filed the action on July 7, 2017, and that the current trial date is set for more than five years after the complaint was filed. Defendants argue that Plaintiffs have had multiple opportunities to prosecute this action within a three-year period but have inexcusably delayed.

Furthermore, Defendants provide that a FSC and Order to Show Cause heard on April 27, 2022, the court was informed that Plaintiffs’ counsel was in a residential treatment facility and would not be able to attend any hearing or briefings for at least 60 days. Defendants then filed and set this motion for hearing less than 60 days after the FSC.

Given the circumstances, the court does not find dismissal warranted in this matter. Defendants are understandably frustrated. However, Defendants are also aware that Plaintiffs have not abandoned their case. As Defendants acknowledge, Plaintiffs appeared at the FSC set for April 13, 2022. In addition, the court’s records show that Plaintiffs appeared at the initial hearing on this motion on June 13, 2022, and that Plaintiffs appeared for a FSC on July 1, 2022. Moreover, although Plaintiff’s counsel did not appear at the April 13 or 27, 2022 FSCs, this appears to be due to Plaintiffs’ counsel allegedly being in a residential treatment facility and being unable to attend any hearings. Given that the failure to appear at the April 27, 2022, FSC was not due to any fault of Plaintiffs’ own, it would be unjust to dismiss the case for Plaintiffs’ counsel’s failure to appear.

Additionally, while Defendants argue that the current trial date is more than five years after the complaint in this action was filed, pursuant to Emergency Rule 10 “for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total time of five years and six months.” At the FSC on July 1, 2022, all parties agreed that the six-month emergency rule extension applies to this case. (Min. Order July 1, 2022.) Consequently, the final date for Plaintiffs to bring this action to trial is not July 7, 2022, which would be five years after the complaint was filed.

Based on the foregoing, the motion is denied. Plaintiffs are put on notice that failure to prosecute this action and appear prepared for trial may result in this matter being dismissed on Defendants’, or on the court’s, own motion.

Moving Defendants are ordered to give notice.

PLEASE TAKE NOTICE:

Dated this 11th day of July 2022

Hon. Audra Mori

Judge of the Superior Court



Case Number: ****7775 Hearing Date: June 13, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

BRENDA BARNES, ET AL.,

Plaintiff(s),

vs.

JEFFREY ELLIOT BOYER, ET AL.,

Defendant(s).

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CASE NO: ****7775

[TENTATIVE] ORDER DENYING MOTION TO DISMISS

Dept. 31

1:30 p.m.

June 13, 2022

1. Background

On July 7, 2017, Plaintiffs Brendan Barnes (“Barnes”) and Peter Naughton (“Naughton”) (collectively, “Plaintiffs”) sued defendants Jeffrey Elliot Boyer, David Tharp, and Rhonda Tharp for damages arising from a four-car accident. Plaintiff have filed an Amendment to Complaint naming On Board Entertainment, Inc. as Doe 1. Trial is currently set for July 13, 2022.

At this time, Defendants Jeffrey Elliot Boyer, David Tharp, and Rhonda Tharp (collectively, “Defendants”) move to dismiss Plaintiff’s complaint for Plaintiffs’ failure to prosecute. On Board Entertainment, Inc. filed a joinder to the motion. The court has not received any opposition.

2. Motion to Dismiss

CCP 583.410(a) states: “The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.”

CCP 583.420 provides in pertinent part:

(a) The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred:

(2) The action is not brought to trial within the following times:

(A) Three years after the action is commenced against the defendant unless otherwise prescribed by rule under subparagraph (B).

(B) Two years after the action is commenced against the defendant if the Judicial Council by rule adopted pursuant to Section 583.410 so prescribes for the court because of the condition of the court calendar or for other reasons affecting the conduct of litigation or the administration of justice.

Moreover, California Rules of Court, Rule 3.1340(a) provides, the court on its own motion or on motion of the defendant may dismiss an action under Code of Civil Procedure sections 583.410-583.430 for delay in prosecution if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant.

In addition, in ruling on a motion to dismiss under CCP 583.410, the court must consider all matters relevant to a proper determination of the motion, including:

(1) The court's file in the case and the declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process;

(2) The diligence in seeking to effect service of process;

(3) The extent to which the parties engaged in any settlement negotiations or discussions;

(4) The diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party;

(5) The nature and complexity of the case;

(6) The law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case;

(7) The nature of any extensions of time or other delay attributable to either party;

(8) The condition of the court's calendar and the availability of an earlier trial date if the matter was ready for trial;

(9) Whether the interests of justice are best served by dismissal or trial of the case; and

(10) Any other fact or circumstance relevant to a fair determination of the issue.

(Cal. Rules of Court, Rule 3.1342(e).)

“ ‘The competing considerations to be evaluated are the policies of discouraging stale claims and compelling reasonable diligence balanced against the strong public policy which seeks to dispose of litigation on the merits rather than on procedural grounds.’ [Citation.] ‘However, it is now well established that the policy [of preferring to dispose litigation on the merits] only comes into play when a plaintiff makes a showing of some excusable delay.’ [Citation.]” (Van Keulen v. Cathay Pacific Airways, Ltd. (2008) 162 Cal.App.4th 122, 131.)

Here, Defendants argue that Plaintiffs have repeatedly delayed trial in this matter by failing to appear for multiple trial, Final Status Conference (“FSC”), and other hearing dates. Defendants assert that Plaintiff filed the action on July 7, 2017, and that the current trial date is set for more than five years after the complaint was filed. Defendants argue that Plaintiffs have had multiple opportunities to prosecute this action within a three-year period but have inexcusably delayed.

Furthermore, Defendants provide that a FSC and Order to Show Cause heard on April 27, 2022, the court was informed that Plaintiffs’ counsel was in a residential treatment facility and would not be able to attend any hearing or briefings for at least 60 days. Defendants then filed and set this motion for hearing less than 60 days after the FSC.

Given the circumstances, the court does not find dismissal warranted in this matter. Defendants provide that Plaintiffs appeared at the FSC set for April 13, 2022, and so, it appears Plaintiffs have not completely abandoned their case. Moreover, although Plaintiff’s counsel did not appear at the April 13 or 27, 2022 FSCs, this appears to be due to Plaintiffs’ counsel allegedly being in a residential treatment facility and being unable to attend any hearings. Given that the failure to appear at the April 27, 2022, FSC was not due to any fault of Plaintiffs’ own, it would be unjust to dismiss the case for Plaintiffs’ counsel’s failure to appear.

Additionally, while Defendants argue that the current trial date is more than five years after the complaint in this action was filed, pursuant to Emergency Rule 10 “for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total time of five years and six months.” Consequently, the final date for Plaintiffs to bring this action to trial is not July 7, 2022, which would be five years after the complaint was filed.

Based on the foregoing, the motion is denied.

Moving Defendants are ordered to give notice.

PLEASE TAKE NOTICE:

Dated this 13th day of June 2022

Paul Bruguera

Commissioner



Case Number: ****7775    Hearing Date: May 12, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

BRENDA BARNES, ET AL.,

Plaintiff(s),

vs.

JEFFREY ELLIOT BOYER, ET AL.,

Defendant(s).

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CASE NO: ****7775

[TENTATIVE] ORDER DENYING MOTION FOR RECONSIDERATION

Dept. 31

1:30 p.m.

May 12, 2021

1. Background

Plaintiffs Brendan Barnes (“Barnes”) and Peter Naughton (“Naughton”) (collectively, “Plaintiffs”) sued Defendants Jeffrey Elliot Boyer (“Boyer”), David Tharp, and Rhonda Tharp (collectively, “Defendants”) for damages arising from a four-car accident. Plaintiffs allege that Defendant Boyer caused the vehicle accident resulting in Plaintiffs’ injuries. Defendants filed an indemnity and contribution cross-complaint against Cross-defendants Marc Schachter and Estate of Marc Schachter. Cross-defendant Estate of Marc Schachter filed an indemnity and contribution counter claim against Counter-defendants Boyer, David Tharp, Phonada Tharp, and On-Board Entertainment, Inc. On Board Entertainment is Defendant Jeffrey Boyer’s employer.

On 12/23/20, the court issued an order granting Defendants, Boyer, David Tharp, and Rhonda Tharp now moves for monetary sanctions in the sum of $3,618 against Plaintiff Barnes.

Plaintiffs, at this time, move for reconsideration of the court’s 12/23/20 Order.

Plaintiffs initially filed this motion on 1/7/21. On 4/20/21, Plaintiffs filed a supplemental notice of motion and motion. The motions appear identical and so the court will consider only the supplemental motion filed on 4/20/21. Plaintiffs provide they are making the motion in pro per; however, the court notes Plaintiffs are represented by counsel. Plaintiffs’ counsel had a motion to be relieved heard on 12/3/20, but the motion was denied without prejudice and Plaintiffs’ counsel remains their attorney of record. (Min. Order 12/3/20.) Plaintiffs provide they have not heard from their attorney in months and are thus were forced to file the motion themselves. To the extent Plaintiffs are now representing themselves, they must file a substitution of attorney form as soon as possible.

Plaintiffs argue the 12/23/20 Order did not comply with CCP ; 128.5 because it did not recite in detail the action, tactic, or circumstances justifying the order. Further, Plaintiffs argue all the evidence indicated Barnes was having debilitating panic attacks, was unconscious, and attempted to commit suicide, which caused her to not appear for trial and was not done in bad faith. Plaintiffs contend they did not receive due process before the sanctions order was issued, and the court erred in awarding Defendants the requested sanctions.

Defendants, in opposition, assert Plaintiffs fail to present any new or different facts or law to warrant reconsideration of the 12/23/20 Order granting sanctions. Defendants argue Plaintiffs make the same arguments in this motion as were made in connection with the opposition to the motion for sanctions. Moreover, Defendants assert Plaintiffs grievances with their counsel and the court are not appropriate in a motion for reconsideration, and Plaintiffs fail to cite any authority for the relief requested.

2. Relevant Procedural History

Defendants filed the relevant motion for sanctions on 7/31/20 setting it for hearing on 12/23/20. The court’s ruling stated in pertinent part:

In this case, Plaintiffs have repeatedly failed to appear for trial. At this time, Defendants move for imposition of sanctions pursuant to CCP ;128.5 for Plaintiffs’ failure to appear at trial. Defendants rely on In re Marriage of Gumabao (1984) 150 Cal.App.3d 572 to support their position. In Gamabao, the court of appeals affirmed the trial court’s award of sanctions when one party’s attorney failed to appear for trial and failed to notify the other side of the inability to appear for trial in advance.

Very similar facts exist in this case. Trial was scheduled for both 11/18/19 and 1/06/20, and Plaintiffs failed to appear for trial on either date and failed to give advance notice that they would not appear. Defendants appeared and incurred attorneys’ fees and costs, including [ ] in connection with each of the scheduled trial dates.

While Plaintiffs submitted their own opposition asserting Barnes was hospitalized, Plaintiffs do not submit any documentation showing Barnes was actually hospitalized, or otherwise establishing the reasons Barnes could not appear, for the 11/18/19 and 1/6/20 trials. Only a letter from Barnes’s brother is provided.

The court is empathetic to Barnes’s condition, but there is no competent evidence submitted to explain why Barnes did not appear for trial without any advance warning by Plaintiffs. Defendants were not notified prior to appearing and incurring fees and costs preparing for the trial dates. Sanctions, therefore, are appropriate and the motion is granted.

Defendants seek sanctions in the amount of $3,618, which represents the attorneys’ fees and court reporter costs to attend the two missed trials. The amount is reasonable and fully supported by Defense Counsel’s declaration in support of the motion.

Plaintiff, Brenda Barnes is ordered to pay sanctions to Defendants, by and through their attorney of record, in the total amount of $3,618, within twenty days.

(Min. Order 12/23/20.)

3. Motion for Reconsideration

CCP ;1008 requires the Court to reconsider a prior ruling if it finds there are new or different facts, circumstances, or law than those before the Court at the time of the original ruling. Once the Court determines the existence of new or different facts, circumstances, of law, it can either modify or affirm its prior decision. (Corns v. Miller (1986) 181 Cal.App.3d 195, 202.)

The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 150.) “[A] court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon ‘new or different facts, circumstances, or law.’” (Id.) The burden under ; 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Sup.Ct. (2005) 135 Cal.App.4th 206, 212-213.) A party seeking reconsideration of a prior order based on “new or different facts, circumstances or law” must provide a satisfactory explanation for failing to present the information at the first hearing; i.e., a showing of reasonable diligence. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) A motion for reconsideration was properly denied where based on evidence that could have been presented in connection with the original motion. (Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1460.)

In this case, Plaintiffs move for reconsideration on multiple grounds. First, Plaintiffs aver the neither the court’s ruling or the notice of ruling served on them complies with CCP ; 128.5 because they did not recite in detail the action, tactic, or circumstances justifying the order. The court notes the 12/23/20 Order stated the reasons for the sanctions being imposed. (Min. order 12/23/20.) In particular, the court noted Plaintiffs repeatedly failed to appear for trial without any advance warning, and Defendants incurred fees and costs preparing for the trial dates because they were not notified prior to appearing. (Ibid.) Further, while Plaintiffs contend the notice of ruling did not incorporate the order, Plaintiffs fail to cite any authority suggesting this is an appropriate ground on which to grant a motion for reconsideration.

Second, Plaintiffs argue the evidence indicated Barnes was having debilitating panic attacks, was unconscious, and then tried to commit suicide, causing her to not appear for trial, which shows the sanctions imposed in the 12/23/20 Order were not warranted. Plaintiffs attach a letter from Barnes’s treating psychiatrist, dated 12/9/20, to the motion. Plaintiffs, however, do not make a showing or explain why any evidence now presented could not have been presented prior to or at the 12/23/20 hearing. The arguments concerning Barnes health condition were otherwise asserted in Plaintiffs’ opposition to the motion for sanctions, to which to court noted Plaintiffs did not submit any competent evidence to support in opposition to the motion for sanctions. (See Min. Order 12/23/20.) Plaintiffs fail to meet their burden to show the existence of existence of new or different facts, circumstances, or law that could not have been presented at the prior hearing so as to justify reconsideration. To the extent Plaintiffs assert they are now in pro per, they are held to the same standard as an attorney.

Lastly, Plaintiffs assert the court erred in its ruling on Defendants’ motion for sanctions. Plaintiffs’ arguments concerning the court’s application of the law are an improper basis for a motion for reconsideration. Reconsideration cannot be granted based on claims the court misinterpreted the law in its initial ruling, as opposed to a change in the law in the interim. That is not a “new” or “different” matter. (Gilberd v. AC Transit, supra, 32 CA4th at 1500.)

Based on the foregoing, Plaintiffs’ motion for reconsideration is denied.

Defendants are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 12th day of May, 2021

Hon. Thomas D. Long

Judge of the Superior Court



Case Number: ****7775    Hearing Date: December 23, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

BRENDA BARNES, ET AL.,

Plaintiff(s),

vs.

JEFFREY ELLIOT BOYER, ET AL.,

Defendant(s).

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CASE NO: ****7775

[TENTATIVE] ORDER GRANTING MOTION FOR IMPOSITION OF SANCTIONS

Dept. 31

1:30 p.m.

December 23, 2020

1. Background

Plaintiffs Brendan Barnes (“Barnes”) and Peter Naughton (“Naughton”) (collectively, “Plaintiffs”) sued Defendants Jeffrey Elliot Boyer (“Boyer”), David Tharp, and Rhonda Tharp (collectively, “Defendants”) for damages arising from a four-car accident. Plaintiffs allege that Defendant Boyer caused the vehicle accident resulting in Plaintiffs’ injuries. Defendants filed an indemnity and contribution cross-complaint against Cross-defendants Marc Schachter and Estate of Marc Schachter. Cross-defendant Estate of Marc Schachter filed an indemnity and contribution counter claim against Counter-defendants Boyer, David Tharp, Phonada Tharp, and On-Board Entertainment, Inc. On Board Entertainment is Defendant Jeffrey Boyer’s employer.

Defendants, Boyer, David Tharp, and Rhonda Tharp now moves for monetary sanctions in the sum of $3,618 against Plaintiff Barnes.

Defendants originally filed a motion for sanctions on 2/21/20. On 3/24/20, On Board Entertainment filed a notice of joiner to Defendants’ motion for sanctions. Based on current conditions, including, but not limited to, the spread of COVID-19, the court continued the matter to 4/30/20 before advancing and vacating the hearing for the motion. (Min. Orders 3/20/20 and 3/23/20.)

Thereafter, Defendants filed the motion for sanctions on 7/31/20 setting it for hearing on 12/23/20.

Defendants assert this matter was set for trial for 11/18/19, and all counsel appeared but neither Plaintiff appeared for trial and Plaintiffs did not give advance warning. Trial was reset to 1/6/20 and all counsel appeared for trial, but Plaintiff Barnes again failed to appear for trial without any advance warning she would be absent. Defendants state that Plaintiffs’ counsel claimed Plaintiff did not appear for the 11/18/19 trial because Barnes was hospitalized, and at the 1/6/20 trial, Naughton informed the court Barnes was again hospitalized. Defendants contend that despite requests, no documentation has been provided verifying Barnes’ hospitalization. Defendants aver sanctions are thus appropriate as Defendants’ counsel fully prepared to try the matter on two separate occasions, but Barnes has continuously not shown up for trial and has caused needless delay.

Plaintiffs filed an opposition on 12/10/20. Plaintiffs provide they are opposing the motion in pro per; however, the court notes Plaintiffs are represented by counsel. Plaintiffs’ counsel had a motion to be relieved heard on 12/3/20, but the motion was denied and Plaintiffs’ counsel remains there attorney of record. (Min. Order 12/3/20.) Plaintiffs provide they have not heard from their attorney in months and are thus making the opposition themselves. To the extent Plaintiffs are now representing themselves, they should file a substitution of attorney form as soon as possible. Plaintiffs’ opposition asserts that Defendants fail to show Plaintiffs’ conduct was done in bad faith or utterly meritless, and that Defendants have not shown any attorney’s fees were incurred by Barnes’s failure to appear for trial.

2. Motion for Sanctions

CCP ; 128.5 states: “[a] trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.”

In this case, Plaintiffs have repeatedly failed to appear for trial. At this time, Defendants move for imposition of sanctions pursuant to CCP ;128.5 for Plaintiffs’ failure to appear at trial. Defendants rely on In re Marriage of Gumabao (1984) 150 Cal.App.3d 572 to support their position. In Gamabao, the court of appeals affirmed the trial court’s award of sanctions when one party’s attorney failed to appear for trial and failed to notify the other side of the inability to appear for trial in advance.

Very similar facts exist in this case. Trial was scheduled for both 11/18/19 and 1/06/20, and Plaintiffs failed to appear for trial on either date and failed to give advance notice that they would not appear. Defendants appeared and incurred attorneys’ fees and costs, including for in connection with each of the scheduled trial dates.

While Plaintiffs submitted their own opposition asserting Barnes was hospitalized, Plaintiffs do not submit any documentation showing Barnes was actually hospitalized, or otherwise establishing the reasons Barnes could not appear, for the 11/1819 and 1/6/20 trials. Only a letter from Barnes’s brother is provided.

The court is empathetic to Barnes’s condition, but there is no competent evidence submitted to explain why Barnes did not appear for trial without any advance warning by Plaintiffs. Defendants were not notified prior to appearing and incurring fees and costs preparing for the trial dates. Sanctions, therefore, are appropriate and the motion is granted.

Defendants seek sanctions in the amount of $3,618, which represents the attorneys’ fees and court reporter costs to attend the two missed trials. The amount is reasonable and fully supported by Defense Counsel’s declaration in support of the motion.

Plaintiff, Brenda Barnes is ordered to pay sanctions to Defendants, by and through their attorney of record, in the total amount of $3,618, within twenty days.

Defendants are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 23rd day of December, 2020

Hon. Thomas D. Long

Judge of the Superior Court



Case Number: ****7775    Hearing Date: December 02, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

BRENDA BARNES, ET AL.,

Plaintiff(s),

vs.

JEFFREY ELLIOT BOYER, ET AL.,

Defendant(s).

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Case No.: ****7775

[TENTATIVE] ORDER DENYING MOTIONS TO BE RELIEVED AS COUNSEL WITHOUT PREJUDICE

Dept. 31

8:30 a.m.

December 2, 2020

Plaintiffs, Brenda Barnes’s and Peter Naughton’s attorney of record, Robert Thomas Hayes Link, seeks to be relieved as counsel for Plaintiffs, contending that Plaintiffs insist upon presenting claims or defenses that cannot be supported by good faith argument, that Plaintiffs’ conduct has rendered it unreasonably difficult for Counsel to carry out representation effectively, and that Counsel’s continued representation is likely to result in a violation of the rules of the State Bar. Counsel declares it has via mail by using Plaintiff’s last known mailing address. Counsel has filed proof of service on his clients and on all parties who have appeared in the action.

The motion is denied without prejudice. The motions, declarations, and orders Counsel filed all are missing the second page, which contain required information such as a notice to client and Counsel’s signature. Counsel must submit all pages of Form MC-51, MC-52 and MC-53 with all required information provided.

Counsel is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 2nd day of December, 2020

Hon. Thomas D. Long

Judge of the Superior Court



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