CHAUNCEY RICHMOND VS GIESEL L RICHMOND ET AL

Tentative Rulings

Case Number: ****0096 Hearing Date: September 13, 2021 Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20

Hearing Date: Monday, September 13, 2021

Case Name: Chauncey Richmond v. Giesel L. Richmond, et al.

Case No.: ****0096

Motion: Continue Trial

Moving Party: Plaintiff Richmond

Responding Party: *UNOPPOSED*

Notice: OK

Ruling: The Motion to Continue Trial is GRANTED. The Court will set the new dates for the Final Status Conference and Bench Trial at the hearing.

Plaintiff to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.

BACKGROUND

On July 26, 2017, Plaintiff Chauncey Richmond filed a Complaint against Defendants Giesel L. Richmond, Benson L. Reed, Sr., Countrywide Bank, Bank of America, Ditech Financial FKA Green Tree, and Does 1-20 stating a single cause of action to quiet title to 2545 6th Avenue, Los Angeles, CA 90018 (the "Property").

On February 16, 2018, Plaintiff filed a Complaint against the same Defendants omitting the quiet title claim and stating causes of action for breach of fiduciary duty, breach of the covenant of good faith and fair dealing, unfair business practices, deceit, fraud, fraudulent conveyance, civil conspiracy, and violation of Civ. Code sec. 1185.

On August 29, 2018, Plaintiff voluntarily dismissed without prejudice the claims against Bank of America and Countywide Bank.

On December 10, 2018, the Court concluded the claims against Ditech (fka Green Tree) were fatally defective. On January 2, 2019, the Court entered judgment in favor of Ditech.

On January 22, 2019, the Court concluded the claims against Reed were time-barred. On January 30, 2019, the Court entered judgment in Reed\'s favor. Only the claims against Defendant Richmond remain unresolved.

On June 17, 2020, Richmond\'s former counsel filed a Motion to be Relieved as Counsel.

On July 20, 2020, the Court granted the Motion to be Relieved as Counsel and Richmond\'s former counsel substituted out of the action.

On September 22, 2020, Plaintiff "represent[ed] to the court" at a Case Management Conference "that he intends to obtain representation." Defendant Richmond did not appear.

On November 18, 2020, the Court scheduled a bench trial for November 1, 2021.

On July 15, 2021, nearly one year later, Richmond retained new counsel.

On July 21, 2021, less than one week after substitution, Richmond filed a Motion to Continue Trial.

DISCUSSION

Applicable Law

“[C]ontinuances of trials are disfavored,” hence the Court “may grant a continuance only on an affirmative showing of good cause requiring the continuance.” (CRC 3.1332.) Good cause may be established by: “(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death, illness, or other excusable circumstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party[;] (6) A party\'s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.” (CRC 3.1332.)

“Other factors to be considered” include: “(1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court\'s calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circumstance relevant to the fair determination of the motion or application.” (CRC 3.1332(d).)

Application to Facts

Plaintiff seeks to continue the bench trial set for November 1, 2021 on the grounds that his new counsel “needs additional time to prepare for the Trial, . . . to retain [an] expert,” and to pursue settlement negotiations. The Motion is unopposed. Good cause for a trial continuance may be established by the “substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice.” (CRC 3.1332(c)(4).) Plaintiff did not attempt to “show[] that the substitution is required in the interests of justice,” generally focusing on whether substituted counsel is ready for trial. However, the Court finds the retention of counsel was reasonably necessary given the delays in prosecution of the case during Plaintiff’s period of nonrepresentation and Plaintiff’s prior representations in September 2020 that he was looking to retain new counsel for trial. The subsequent retention of counsel was therefore expected at the time the Court set trial for November 1, 2021 and substitution was reasonably necessary in connection with the trial.

The trial date is less than two months away. (CRC 3.1332(d)(1).) The trial has not been previously continued after it was initially calendared on November 18, 2020. (CRC 3.1332(d)(2).) Plaintiff requests a continuance of at least 120 days. (CRC 3.1332(d)(3); Gomez Decl., para. 9.) Given the rapidly approaching trial date and recent substitution of counsel, the Court does not perceive any “availab[le] . . . alternative means to address the problem that gave rise to the motion,” i.e., the retention (if delayed) of new counsel. (CRC 3.1332(d)(4).) The prejudice of proceeding to trial with less than four months for new counsel to prepare is apparent and Defendant Richmond has not indicated she would be prejudiced by a continuance. (CRC 3.1332(d)(5).) While the parties did not stipulate to a continuance, Defendant Richmond opted not to oppose the Motion and allegedly indicated to new counsel some interest in settling. (CRC 3.1332(d)(9); Gomez Decl., para. 8.) The case is not entitled to preferential trial setting. (CRC 3.1332(d)(6).) Continuance of the trial would not have a significant impact on other pending trials in Department 20. (CRC 3.1332(d)(7).) There is no indication that “trial counsel is engaged in another trial.” (CRC 3.1332(d)(8).) The catch-all factors regarding the “interests of justice” and “other fact[s] or circumstance[s] relevant” to the Motion tend to support a continuance, as there is no purpose served by forcing unprepared counsel to proceed to trial, particularly given the possibility of settling the case in the event a continuance is granted.

The unopposed Motion to Continue Trial is therefore GRANTED.

CONCLUSION

The Motion to Continue Trial is GRANTED. The Court will set the new dates for the Final Status Conference and Bench Trial at the hearing.

Plaintiff to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.

Case Number: ****0096    Hearing Date: July 20, 2020    Dept: 20

Tentative Ruling

Judge David J. Cowan

Department 20

Hearing Date: Monday, July 20, 2020

Case Name: Chauncey Richmond v. Giesel Richmond

Case No.: ****0096

Motion: Relieved as Counsel

Moving Party: Robert P. Sievers of Sievers Law Firm, P.C.

Responding Party: Defendant Giesel Richmond

Notice: OK

Ruling: The Motion of Robert P. Sievers, counsel of record for Defendant Giesel Richmond is GRANTED.

DISCUSSION

CCP ; 284(2) states that an attorney may be changed at any time before or after judgment upon the application of either client or attorney after notice from one to the other. (CCP ; 284; CRC Rule 3.1362.)  The court has the power to permit withdrawal of an attorney within its sound discretion. (Jones v. Green (1946) 74 Cal.App.2d 223.) An attorney may withdraw without cause as long as the withdrawal can be accomplished without undue prejudice to the client's interest – i.e., counsel cannot withdraw at a critical point, but if the case is not at a critical point withdrawal is permitted because the client will not be prejudiced. (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.) A motion to be relieved must be made using mandatory forms filed and served in compliance with CRC Rule 3.1362. 

Here, Sievers has filed a motion and given proper notice using the required forms. Richmond did not oppose this motion. The Court finds the requirements of Rule 3.1362 have been satisfied and that Richmond will not be prejudiced by Sievers’ withdrawal; nothing is calendared besides a case management conference.

Accordingly, the motion to be relieved as counsel is GRANTED.

Sievers to give notice and file a proof of service of this Order.

Case Number: ****0096    Hearing Date: November 22, 2019    Dept: 24

Defendant Giesel Richmond’s motion for monetary sanctions is GRANTED. Plaintiff is ordered to be deposed within five days, at a reasonable time and location.

Plaintiff Chauncey Richmond (“Plaintiff” or “Chauncey”) initiated this suit on July 26, 2017 by filing a complaint for quiet title as to real property located at 2545 6^th Ave., Los Angeles, California 90018 (the “Property”). On February 16, 2018, Plaintiff filed First Amended Complaint (“FAC”), the operative pleading, alleging eight causes of action: 1) breach of fiduciary duty, 2) breach of covenant of good faith and fair dealing, 3) unfair business practices, 4) deceit, 5) fraud, 6) fraudulent conveyance, 7) civil conspiracy, and 8) violations of Civ. Code sections 1185.

This case involves a dispute between siblings, Plaintiff and Defendant Giesel Richmond (“Giesel”), over the property. The FAC alleges that on October 23, 1995, Plaintiff and Giesel were made joint tenants of the property. In 1999, Plaintiff became severely depressed, and was debilitated until April of 2017. In 2005, Giesel sought to obtain a large loan from GF Mortgage Inc., dba Greystone Financial (“GF Mortgage”) and use the property as collateral. GF Mortgage informed Giesel that she would have to share the funds with Plaintiff, since they were joint tenants.

On June 3, 2005, former Defendant Benson L. Reed Sr. (“Reed”), a public notary, fraudulently notarized a quitclaim deed that transferred all of Plaintiff’s ownership interest to Giesel. Plaintiff has no memory of signing the deed or appearing before Reed. Plaintiff believes he was coerced into signing the deed because he was severely intoxicated and affected by his depression medication. Giesel then entered into an agreement with GF Mortgage to obtain a $244,000.00 loan using the property as collateral.

On September 13, 2019, the Court granted Giesel’s unopposed motion to compel Plaintiff’s deposition. Plaintiff was to be deposed by October 11, 2019, at a reasonable time and place chosen by Defendant (the “Deposition Order”).

On October 30, 2019, Giesel made an ex parte application for an order imposing sanctions or an order advancing the hearing on the motion for terminating sanctions. The Court granted the ex parte application in part and advanced the hearing. No opposition was filed as to either the ex parte request or motion for sanctions. The Court notes that Plaintiff orally opposed the ex parte request.

If a party fails to obey a court order compelling it to provide a discovery response, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction . . . In lieu of or in addition to this sanction, the court may impose a monetary sanction . . . .” (CCP ;; 2030.290(c), 2030.300(e), 2031.300(c), 2031.320(c).) Misuse of the discovery process, which includes disobeying a court order to provide discovery, is conduct subject to sanctions. (CCP ; 2023.010(g).) Possible sanctions are:

(a) [A] monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct….

(b) [A]n issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.

(c) [A]n evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.

(d) [A] terminating sanction by one of the following orders:

     (2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(e) [A] contempt sanction by an order treating the misuse of the discovery process as a contempt of court. 

(CCP ; 2023.030 [emphasis added].)

The party seeking to impose sanctions need only show the failure to obey earlier discovery orders. (Puritan Ins. Co. v. Sup.Ct. (Tri-C Machine Corp.) (1985) 171 Cal.App.3d 877, 884 [interpreting former statute dealing with “refusal” to comply].) However, numerous cases hold that severe sanctions (i.e., terminating or evidentiary sanctions) for failure to comply with a court order are allowed only where the failure was willful. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) The burden of proof then shifts to the party seeking to avoid sanctions to establish a satisfactory excuse for his or her conduct. (Corns v. Miller (1986) 181 Cal.App.3d 195, 201; Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227.)

“The trial court may order a terminating sanction for discovery abuse after considering the totality of the circumstances: the conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390; Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1224 [terminating sanctions by trial court not an abuse of discretion where defendant repeatedly violated court orders to produce records].) “[A] terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.” (Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 [terminating sanctions order reversed where there was no showing the court could not have obtained compliance by using lesser sanction e.g., issue or evidentiary].) In extreme cases, however, terminating sanctions as a first measure are authorized. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1434.)

Discussion

Giesel requests that the Court impose sanctions on Plaintiff for his failure to appear at his second noticed deposition. Giesel notices monetary and terminating sanctions.^[1]

On September 23, 2019, Giesel served a Second Notice of Taking Deposition and Demand to Produce Documents at Deposition on Plaintiff pursuant to the Deposition Order. (Sievers Decl., ¶ 7, Ex. B.) Plaintiff’s deposition was scheduled to take place at 2:30 p.m. on October 10, 2019. (Ibid.) Plaintiff did not object to the Second Notice of Deposition or to the Demand to Produce Documents. (Ibid.). Plaintiff did not appear at the noticed deposition or produce documents. (Id., ¶ 8.) The court reporter prepared and executed an Affidavit of Nonappearance dated October 11, 2019. (Id., ¶ 8, Ex. C.)

This motion provides sufficient evidence that Plaintiff failed to obey the Deposition Order. Further, Plaintiff has not offered any formal opposition to the motion, despite being present at the ex parte proceeding. While this show a failure to obey, the Court does not find that this satisfactorily shows that Plaintiff willfully disobeyed the order. The above evidence does not indicate that Plaintiff “refused” to appear to the deposition. Notably, Giesel’s evidence does not indicate if any informal attempts to contact Plaintiff were made, which may have revealed why Plaintiff did not appear at the depositions or whether he “refused” to appear as Giesel suggests. Thus, the Court does not find that terminating sanctions would be appropriate here as a first measure for compliance.

That said, The Court is mindful that Plaintiff’s failure to appear could prejudice Giesel if Plaintiff’s deposition is not taken with sufficient time to prepare for trial. The Court would therefore be amenable to continuing the trial date to allow for the deposition to take place, if needed. The Court is further mindful that Plaintiff is pro per; however, this does not allow Plaintiff to ignore his discovery obligations or excuse a failure to obey the Court’s orders.

Therefore, Giesel’s motion is GRANTED in part. The Court will impose additional monetary sanctions in an amount to be determined at the hearing and orders Plaintiff to appear at his noticed deposition within the next five days, at a reasonable time and location.

Moving party is ordered to give notice.